DOG BITES MAN: A provision in the Kauai County Charter restricting Council meeting executive session (ES) to those that regard “claims” (3.07e) has apparently been accepted as law by the Council, according to statements by Councilpersons JoAnn Yukimura, Jay Furfaro and Tim Bynum and especially Deputy County Attorney (CA) Harrison Kawate at the Council meeting last Wednesday, April 21.
Though the Council still refuses to release the actual CA opinion Yukimura made it quite clear that the Council intends to abide by the law although their interpretation of it might seem a bit of a stretch to those who brought the law to light more than 10 months ago
Council watchdogs Glenn Mickens and Ken Taylor, along with attorney Walter Lewis discovered provisions in the charter and state law that restrict secrecy unless the matter is one of “claims” last summer but the council has refused to acknowledge the law until last week when it was “noticed” on the agenda for two executive sessions..
This week’s agenda listed ES 334 and 335 with a new citation saying “Pursuant to... Kaua`i County Charter section 3.07(E)” for the first time.
Mickens prepared testimony took note of that and, as he has done at every meeting that has included an ES on the agenda since last August, asked the question again- why are you breaking the law. He said :
Today’s council agenda includes two executive sessions. They both refer to Charter Section 3.07 E as justification for holding the sessions. But they also refer to HRS sections. If 3.07 E applies, the Sunshine law provisions do not.
From the information provided in the notice of the executive sessions neither Executive Session 334 nor 335 is supportable under the terms of the Charter Section.
Section 3.07 E provides that council meetings shall be open to the public except for consultations with the County Attorney on claims. Neither proposed executive session states that any consultation is being held with the County Attorney or even a deputy in that office.
The notice for Executive Session 334 appears to refer to a course of action contemplated by the county and the possibility of legal risks that may be related. The notice does not state that any monetary claim has been asserted; it does not identify any party who may be a claimant; it does not state why any claim may be presented and it does not identify the nature of any claim that may be asserted. In short, the notice fails to provide adequate information to support the assertion that it relates to a claim or even to a potential claim.
The notice for Executive Session 335 lumps together four different lawsuits. It cannot be ascertained from the notice that any of the lawsuits involve claims. The council understands the meaning of the word “claims”. It has a practice of identifying what it considers claims on its meeting agendas. There are three of them on today’s agenda. They are communications submitted to the county clerk pursuant to Section 23.06 of the Charter and relate to the seeking of recovery of damages for death or injury to person or property. There is no indication in the notice for Executive Session 335 that in any of lawsuits mentioned claims for recovery of damages are being sought. The notice for this executive session fails to provide the requisite information to support its allowance under Section 3.07 E.
Proposed executive sessions 334 and 335 are simply imaginative efforts to try to cover situations as presenting claims when in fact they do not. It is reprehensible that the council would use this type of misrepresentation to achieve sessions from which the public is excluded. If you value our citizens’ perception of your integrity, please act in the public interest and do not hold these sessions.
When Mickens was finished, instead of the usual “Thank you Glenn” from council chair Asing this time he got a response.
Yukimura, who has been a single woman bastion of secrecy despite her lip service to open meetings finally admitted that 3.07(e) pertains and even expressed astonishment that anyone thought she ever didn’t think this.
“I just want to say that (the agenda posting for) ES 334 specifically mentions ‘claims’- the posting of it- and 335 mentions lawsuits all of which are claiming damages- which are claims” said Yukimura.
“There is no doubt in my mind that these two issues clearly come under the Charter. It’s fine when they come under two laws- they can come under both the Sunshine Law and the Charter and they do in terms of claims”
Mickens again commented calling it “strange” that after 10 months of complaints that claims and 3.07(e) were noticed on the agenda to which Yukimura astonishingly said “We’ve always recognized that it’s relevant.
“You have?” said Mickens in disbelief, “Then why have we sat here for 10 months bringing it up and we’ve never heard anything?
“There’s always been a question as to how HRS and the charter integrates” responded Yukimura.” I don’t think we’ve ever said the charter doesn’t apply”
“But it’s never been on the agenda before” cried Mickens.
“And I think that’s due to your good influence” said Yukimura.
The council routinely meets on matters of public policy in secret ES.
Furfaro then said that he believes a case called Hui Malama v C&K of Honolulu might pertain which he said widens the definition but Mickens, obviously familiar with the case said that the law there was different and more lenient.
Then Ken Taylor specifically complained that ES 334 was clearly about the sea wall fronting Pono Kai in Kapa`a for which there is no litigation much less claims.
At that councilmember Tim Bynum who has been trying to buck the system in trying to release various CA opinions told of his frustrations, including the fact that he can’t even get the council to pass rules for releasing the opinions and how he’s been trying to get this one released since January.
When Taylor tried to answer Bynum’s tale Furfaro screamed that Bynum had made a statement and had not asked a question and doesn’t call for an answer from Taylor to which Asing banged his gavel and dismissed Taylor.
But the final admission that the council will now operate under 3.07(e) and how they will do it came from Kawate who later reading of ES 334 confirmed Yukimura’s statements.
“As previously stated relating to the clarifying language relating to the executive session applied to this particular executive session, pursuant to (state laws) and Kaua`i County Charter Section 3.07 subsection “e” the purpose of this executive session is for the council to consult with legal consul regarding claims, potential claims and all other claims and potential claims and associated issues regarding the seawall fronting Pono Kai resort in Kapa`a,” said Kawate.
There is no lawsuit regarding the crumbling seawall nor has there ever been one nor has anyone but the Council ever mentioned the possibility of one.
And there is no “claim” under section 23.06 of the charter which is called “Claims”.
Nowhere else in the state are county attorneys or even the State Attorney General’s opinions on public policy held secret and the Kaua`i Council has released CA opinions in the past and routinely did so until recently, mostly at the behest of Yukimura and Asing.
The statements are an apparent victory for Mickens who has brought the issue forward, gotten opinions from the Office of Information Practices and ultimately the CA, although for a while the Council wouldn’t admit there even was an opinion until Bynum finally got to make a statement on the matter. Others on the Council routinely cut him off as Furfaro did successfully while Taylor was being questioned by Bynum at last week’s meeting.
The Charter provisions “trumps” State law due to a provision in HRS 92-71 which says county provisions that are more stringent than the Sunshine law take precedence.
It remains to be seem how the council tortures the word “claims” in the future despite the fact that the Charter clearly defines the word in Section 23.06.