RED-HANDED

RED-HANDED: The Kaua`i County Council’s penchant for treating the state Sunshine Law like toilet paper is just a fact of life in this separate kingdom where patriarchy has replaced open governance, deliberations and decision-making.

Though violations of the state’s open meeting “Sunshine” laws are apparent when one watches council meetings, evidence of this criminal activity has been scant and usually circumstantial.

Until now.

PNN is in receipt of a letter apparently from then County Council Chair (now vice chair) Jay Furfaro addressed to “Members of the County Council” asking for support for a bill that was never formally agendaed and certainly not in an open meeting, in blatant violation of the law.

Though we have heard about proposed bills being improperly “circulated” for many years we’ve never had the goods before.

The bill is the one we discussed Tuesday after Joan Conrow discovered it at Realtor Ronnie Margolis’ blog and the letter is the one that Margolis referred to and published a portion of in a recent post regarding setting up “non-enforcement agreements” for people who have vacation rentals on agricultural land in clear violation of state law HRS 205.

While PNN is unable to confirm that the letter was actually sent or received, if indeed it was it could lead to criminal penalties including jail time for Furfaro.

Just circulating communications that are likely to be discussed or introduced before they are actually on the agenda is forbidden but even more troubling in the letter is the actual solicitation for support of the measure which is doubly prohibited.

The letter- reproduced in full below and on official council stationary says in part

I am recommending consideration of the attached bill prepared by former Planning Committee Chair, JoAnn Yukimura, to address the issue of vacation rentals of agricultural lands.. Your favorable consideration in referring this bill to the Planning Commission is appreciated.

Bills regarding planning issues must go through the planning commission according to the county charter after being directed there by a vote of the council.

The letter contains not just a full description of the bill lifted from the “purpose and finding” section but purportedly an attachment containing the proposed bill itself.

The Sunshine law HRS 92 in says in section §92-1

(T)he legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible.

And while there are “permitted interactions of members” in §92-2 none allow the communication of matters not on a meeting agenda and discussed openly in an open meeting especially those likely to be on a future agenda.

§ 92-2.5 does allow that

Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.

but that is certainly not the case here

The section does list some permitted interactions of two or more but less than a quorum such as investigations and other specific matter but nowhere does it allow this kind if communication.

The prohibition on communications outside of open, duly agendaed meetings is clear. In order for any communication behind closed doors to take place it must conform to §92-4 and §92-5 (a) where there is a specific list of eight types of matters that can be considered in “executive session”.

But even those must appear on an agenda duly filed six days before a meeting

92-5 (b) says that that:

(b) In no instance shall the board make a decision or deliberate toward a decision in an executive meeting on matters not directly related to the purposes specified in subsection (a). No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

The Furfaro letter certainly doesn’t fit any of the exceptions to the open meetings laws and prohibitions against circumventing the law which also has been interpreted by Office of Information Practices (OIP) to forbid serial one on one communications to avoid compliance in opinion 05-15

The OIP has opined on the matter many times, most recently and clearly in Opinion Letter 4-01 dated January 13, 2004 on Board Members “Discussion of Official Business Outside of a Duly Noticed Meeting” where the summary letter states

The OIP opined that the general rule is that discussion among board members concerning matters over which the board has supervision, control, jurisdiction or advisory power and that are before or are reasonably expected to come before the board outside of a duly noticed meeting violates the Sunshine Law.

PNN received the letter through a reliable source who asked not to be identified. They told us the letter was forward by Margolis as the one he referred to and partially reproduced in his blog.

PNN is forwarding the case to the OIP for investigation as to whether the letter is genuine, was sent and received by councilmembers and to obtain a ruling in the case.

It is illegal to intentionally forge or alter official government documents.

-----------------

And for the “only on Kaua`i” note of the week we turn to Hank Soboleski’s always excellent and informative Island History column in the local paper

Nepotism, cronyism and the resulting conflict-riddled revolving-door nature of modern Kaua`i government has provided more material than we can handle at PNN. But it appears it’s practitioners have nothing on the way it was done almost 60 years ago.

Soboleski’s piece today describes the 1940 opening of the first radio station on Kaua`i the fabled KTOH and the on air festivities that night.

After describing the much of the program Hank lists the “Guest speakers”

And there, halfway down the list, are the following:

County Treasurer K.C. Ahana
County Auditor K.M. Ahana

-------------

COUNTY COUNCIL OFFICE OF THE COUNTY CLERK
JAY FURFARO, CHAIR Council Services Division
MEL RAPOZO, VICE CHAIR Elections Division
TIM BYNUM
SHAYLENE ISERI-CARVALHO PETER A. NAKAMURA, County Clerk
DARYL W. KANESHIRO ERNESTO G. PASION, Deputy County Clerk
RONALD D. KOUCHI Telephone: (808) 241-6371
4396 RICE STREET, ROOM 206
LĪHU‘E, KAUA‘I, HAWAI‘I 96766-1371
E-mail: cokcouncil@kauai.govJOANN A. YUKIMURA Facsimile: (808) 241-6349



November 28, 2008

Members of the County Council
4396 Rice Street, Room 206
Līhu‘e, HI 96766

Dear Members of the County Council:

As you know, in the last nine months since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come.

To address this situation, I am recommending consideration of the attached bill prepared by former Planning Committee Chair, JoAnn Yukimura, to address the issue of vacation rentals of agricultural lands. It re-instates a provision proposed while Ordinance No. 864 was becoming law. It would allow enforcement agreements that would allow vacation rentals on agricultural land to continue to operate where it can be proved that they were in existence and legal operation prior to enactment of Ordinance No. 864 except for State requirements for farm dwellings. This grace period would be allowed only until the County’s agricultural land planning process and related regulations are completed and implemented, or the owner secured a special permit under Section 205-6 of Hawai‘i Revised Statutes (the latter is a new addition to the proposal considering during passage of Ordinance No. 864.).

The subject vacation rentals would accommodate the visitors who CAN come to Kaua`i. They provide support small businesses and provide jobs. On the other hand, they would be limited to those single family transient vacation rentals which were operating prior to enactment of Ordinance No. 864 (it is imperative that the Planning Department strictly administer and enforce this requirement) and would not be allowed if determined to be on agricultural land after our agricultural land planning process unless they, through a public hearing process and meeting the requirements, secured a special permit under State law.

Your favorable consideration in referring this bill to the Planning Commission is appreciated.

Sincerely,



Jay Furfaro
Councilmember