ANOTHER BLOW TO THE UNDERDOG

ANOTHER BLOW TO THE UNDERDOG: It’s one step forward a thousand paces back in the battle to get the Kaua`i Councty Council to follow the sunshine and open records laws again after the ray of light appeared on the agenda last month, only to be ignored by the Council last week, even now that they have seemingly acknowledged their criminal activity.

The Council has begun citing on the appropriate agenda items, section 3.07 of the Kaua`i County Charter which restricts their secret executive sessions (ES) to those regarding “claims”.

After almost a year of hounding by the last man standing- the amazingly accurate and informed Coach Glenn Mickens- the council has admitted that whenever they kick everyone out of the room it has to be for “claims” and claims only – a term well described in Charter Section 23.06.

As we described previously, some meetings back a few council members including JoAnn Yukimura and Jay Furfaro pointed to that week’s scheduled ES agenda items and claimed that they were all “claims” as the word “claim” appeared in the agenda item. Whether they were claims or not was debatable but the fact that they were acknowledging the controlling legal nature of the provisions (due to HRS 92-71 that gives more restrictive local laws regarding closed meetings precedence over the Sunshine law) was seen as a major victory for Mickens and fellow council-watcher Ken Taylor.

This past week they seemingly didn’t care again other than to list “3.07” on the agenda item- along with a laundry list of state provisions that would ordinarily make their secret confabs legal but are superceded by 3.07- but without mention of a specific “claim” in the agenda item

There is supposedly, and admittedly according to some councilmembers, another of those secret County Attorney’s opinions floating around on the matter but each of them- including councilman Tim Bynum who bitterly complained to the newspaper about these secret CA public policy opinions- voted to go ahead into ES.

Well, another week, another illegal meeting- which by the way caries criminal penalties under HRS92-12.

Here’s Glenn’s testimony. presumably once again written with the help of a certain well-know North Shore attorney who has written about it in his column in the local paper.

And by the way the only response to his testimony was the usual “Thank you Glenn” followed by a unanimous vote to hold the session in private.


To: All Council Members
Glenn Mickens’ Testimony 5/28/08
Re: Executive Sessions

At the May 14th county council meeting I repeated my concern that Charter Section 3.07 E specifically required that council meetings be open to the public except for “consultations with the County Attorney on claims.” After Ken Taylor supported my statement, Council member Yukimura stated that she believed that the six executive sessions noticed for that day were in compliance with Section 3.07 E because lawsuits and arbitrations involve claims. Isn’t it wonderful that after ten months somebody on the council at least offers some explanation fragile though it may be?. Then the chair stated I had asked for justifications for the executive sessions and now I had been told but I would not listen.

The one size fits all comment by the council member was far too simplistic. All lawsuits involve disputes but they may or may not involve claims. The County understands the meaning of the term “claims”. Charter Section 23.06 refers to them. The agenda for the May 14th meeting included four of them. The Sunshine law provides that its provisions for exceptions to the open meeting requirements shall be strictly construed against closed meetings. Does your County Attorney believe he can defend the notion that any dispute justifies an executive session? I remember very well the lawsuit filed by the county challenging the Ohana Kauai property tax proposal. The Council held several executive sessions about that case. The issue of that lawsuit was the validity of the charter amendment. But the Ohana group made no claim against the county and the county made no claim against the Ohana group. Were they valid executive sessions? I

When the council seeks an executive session as to a lawsuit or arbitration the notice of the session should state the nature of the claim involved. None of the executive sessions noticed for the May 14th meeting did this and neither of the executive sessions for this meeting did. If the notice fails to mention a claim how can the executive session be in compliance with Section 3.07E?

Section 3.07E also requires where there is a consultation that it be with the County Attorney. In only one of the six executive sessions on May 14th did the notice state that there would be a consultation with the county Attorney. One of the executive sessions did not even state that any consultation with legal counsel would occur. Neither executive session noticed for this meeting mentions the county attorney.

The Sunshine law declares that it is the policy of the state that governmental affairs shall be conducted as openly as possible. I applaud the statement of Council member Bynum reported in TGI last Sunday that it is extremely important for the county to do everything possible to promote openness. Consistent with his purpose a charter amendment (article 23.08) has been proposed to the Charter Review Commission to make a county attorney’s opinion available within two days after an executive session. The practices of this council in unnecessarily cloaking many of its discussions in secret and preventing the release of legal opinions are offensive to the people of the county and their right to know how we are governed.

I do not seek to have the Council refrain from holding executive sessions. I have been urging that in keeping with both the Sunshine law and Section 3.07 E executive sessions should only be held where the notice given and the consultation to be held meet the requirements of law. I remain of the view that many have not.

If it is your desire to serve our citizens and not to hide from them please examine your actions and resolve to be more open and in better compliance with the spirit and letter of the law in the conduct of your affairs.