SMOKIN’

SMOKIN’: The state Office of Information Practices (OIP) has “opened (a) file relating to (PNN’s) request for an investigation regarding the Kauai County Council under the Sunshine Law, part I of chapter 92, Hawaii Revised Statutes.”

The complaint alleges that then council chair, now council Vice Chair Jay Furfaro and Planning Committee Chair illegally circulated a draft of a bill to allow transient vacation rentals (TVRs) on agriculturally zoned land and actually solicited support for the bill. as PNN described last December 19.

A letter from OIP attorney Jennifer Z. Brooks to Furfaro reads

January 13, 2009

The Honorable Jay Furfaro, Chair
Kauai County Council
4396 Rice Street, Room 206
Lihue, Kauai, Hawaii 96766-1371

Re: Request for Investigation (S INVES-P 09-5)

Dear Chair Furfaro:

The Office of Information Practices (“OIP”) has received a complaint from Mr. Andy Parx, concerning the Kauai County Council (“the Council”). Specifically, Mr. Parx asks whether the distribution of a letter from you dated November 28, 2008, which was sent to all Kauai County Councilmembers violated part I of chapter 92, Hawaii Revised Statutes (the “Sunshine Law”). A copy of Mr. Parx’s complaint is enclosed for your information.

We ask for your assistance in our review of this complaint. Please provide us with a detailed explanation, including any relevant legal citations, setting forth the Council’s position on this matter and any other information you deem relevant to this inquiry. We request that the Council provide this response to OIP no later than ten business days from receipt of this letter.

Thank you for your attention to this matter. If you have any questions or would like to discuss this matter, please do not hesitate to contact the undersigned attorney.

Very truly yours,

Jennifer Z. Brooks, Staff Attorney

In our December 19 piece we wrote that

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 (Dec. 16) 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 post goes on from there with a lengthy exposition of the legalities along with Sunshine Law and OIP opinion citations. But the gist is that it is illegal for more than two councilmembers to discuss council business- including any matter likely to be on future a agenda- outside of a duly agendaed, open meeting (with 8 “executive session” exceptions). And in any case any solicitation of support for a measure is forbidden

Coincidentally the “bill” has now been placed on the agenda for today’s county council meeting and is up for “first reading”.

It is listed as Bill 2298 and introduced by Furfaro and if approved it could go to a public hearing most likely at the council’s January 28 meeting unless it is sent to the Planning Department for comment- as all planning related bills are supposed to do according to the county charter.

In this case it may not because the Planning Department has already reviewed multiple TVR bills during the last year and it may be deemed by the council that the department and Planning Commission has already opined on the matter, rejecting such a measure in the past as being in opposition to state law.

The original draft was distributed by Furfaro to the members of the last county council but it is a new council which will be voting on how or whether to allow the bill to proceed.

While “first reading” votes are usually perfunctory in order to get the bill to a public hearing it will be interesting to see if that’s the case today.

Councilmember Tim Bynum was quoted as supporting the bill in the local newspaper last Thursday. And Furfaro has been vociferous in his support.

But the rest may be reluctant to direct the Planning Department to sign the “non-enforcement agreements” the bill calls for with those that have ag-land vacation rentals in defiance of state law (HRS 205) which forbids overnight accommodation.

Our speculation is that support or lack thereof may go as follows.

Rancher Darryl Kaneshiro has indicated he would not support such a bill during discussion of the bill which passed last summer to allow the “grandfathering” of current TVRs in non “visitor destination areas” (as defined in the general plan) as has Council Chair Kaipo Asing.

While new councilmember Lani Kawahara didn’t specifically address the issue during the recent campaign her support for use of ag land for legitimate farming indicates she will probably oppose the measure.

On the other hand, in his role as a man who never met a tourism development he didn’t like Dickie Chang can probably be counted on to support the bill.

That leaves Derek Kawakami as the swing vote and his position is anyone’s guess.

But due to Furfaro’s actions previously on this matter we would hope that he would recuse himself from voting on the measure while a cloud hangs over his actions in illegally soliciting support for the bill.

Some have asked “why is PNN going after Mr. Furfaro” and whether we have spoken to him on this matter.

PNN did send an email to Mr. Furfaro on the same day as the OIP complaint was filed saying that it was not a personal matter and speculating that this type of activity has been routine behind the scenes during his tenure on the council.

We said we have often suspected that that is the case but have just never had a “smoking gun” until now..

Often it is obvious that these types of activates routinely occur. Anyone who watches the council in action sees evidence that discussions have taken place and that commitments to vote a certain way would have to have taken place such as sessions where confusion and disagreement reign and then, following a recess, miraculously everyone is suddenly and silently on the same page as to an amendment or an action to be taken.

We suspect that it was Mr. Furfaro’s experience in getting away with it for so long that led him to be open enough about the matter to send the letter soliciting support and the bill itself to Realtor Ronnie Margolis who posted them at his web site.

Mr. Furfaro did not respond to our email.