AGGRESSIVELY RELIA-BULL

AGGRESSIVELY RELIA-BULL: It would be nice to think that each flagrant flouting of the Hawai`i sunshine law by the Kaua`i County Council was just an “opportunity” to “educate” some “well meaning” but forgetful “public servants” as to the law- a law that, if intentionally violated, carries a fine, jail time or both.

It would also be nice if we could believe Santa Claus will drop everything we ever wanted down the chimney, the tooth fairy will leave a big sack of cash under our pillows or that a new president will change the fundamental way American government functions under corporate rule.

And so another week, another case of the obvious contempt for the law by the Minotaurs in the bowels of that den of iniquity known as the Council Chambers.

This time it’s in the form of a case- S-INVES-P 09-6- accepted for investigation by the Office of Information Practices (OIP). It was filed after a particularly absurd little dance performed after the Feb. 4 council committee meetings were over.

In a “complaint” letter to OIP- or “request” for investigation as they prefer we call them- Glenn Mickens describes what happened after the last committee gavel fell that day.

From: Glenn Mickens
Subject: Sunshine Law Violation
Date: February 9, 2009 2:49:41 PM HST
To: oip@hawaii.gov
Attention: Mr. Paul Tsukiyama, Director

Dear Mr. Tsukiyama:

I spoke to Cindy of your office this morning about what appeared to be a violation of the sunshine law by the Kauai County Council. She advised that she thought I had a legitimate complaint and requested that I submit it in writing to you. The situation was as follows:

On February 4, 2009 the Council held a committee meeting that lasted from 9 am to about 11 am. The meeting agenda was brief consisting of only three items and no executive meeting was noticed.

When the Council meeting was adjourned members of the public left the chambers where the meeting was held. Three members of the public, including me, remained in the hallway adjacent to the chambers. The shade in the window of the meeting room was pulled down and the door to the chamber was locked as is done for executive meetings. Six of the council members remained in the chambers along with one member of the County administration.

When I asked an assistant county clerk about what was occurring he said, "They are discussing the renovation of the offices in the County building."

I am filing this complaint because it seems to me that the public was wrongfully excluded from hearing the discussions held and no notice was given about them.

The sunshine law requires that all meeting- even executive sessions- be fully described and placed on an agenda six days before the meeting.

Within a few days Mickens received an email from OIP staff attorney Jennifer Z. Brooks that stated.

The Office of Information Practices has opened the above referenced file relating to a request for an investigation regarding the Kaua`i County Council under the Sunshine law part I of Chapter 92. Hawaii Revised Statutes

Ms Brooks also enclosed a letter asking the council essentially “what the %*$#”

It read:

The Honorable Bill “Kaipo” Asing
Chairperson
Kauai County Council
4396 Rice street
Lihue HI 96766

Re: Request for investigation (S-INVES-P 09-6)

The OIP has received a request from Mr. Glenn Mickens that this office investigate whether the executive session held by the Kauai County Council (the “Council”) on its February 4th meeting violated part I of Chapter 92 of HRS. A Copy of Mr. Micken’s request is enclosed for your information.

We ask for your assistance in our review of this request. Please provide us with a detailed explanation, including any relevant legal citations setting forth the council position on this matter and any other information you deem relevant to this inquiry. Please provide us with a transcript of this meeting if available or in absence of a transcript the minutes of the meeting. We request 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

Jennifer Z Brooks
Staff Attorney

What will come of this though is anyone’s guess because the under-funded, under-staffed and overworked OIP has been loath to hand down official opinions recently and only did so twice last year- the lowest number ever..

When Honolulu blogger Ian Lind asked why in a post a week or so back he actually got an answer from OIP Director Paul Tsukiyama.

According to Lind:

Tsukiyama says his office actually authored 45 written opinions during 2008, up from a total of 39 the previous year.

He says the difference is accounted for by 43 “informal” or memorandum opinions which are neither published nor circulated.

(Tsukiyama wrote) These opinions are deemed to be of more limited guidance because they address issues that have already been more fully addressed in formal opinions, or because their factual basis limits their general applicability. These opinions enerally (sic) provide elss (sic) detailed legal discussion.

Tsukiyama says that “in the face of diminishing resources” to deal with its longstanding backlog,

(Tsukiyama wrote) OIP has elected to address more cases by way of informal (unpublished) opinions, summary dispositions, and by written and verbal corresponence (sic) as opposed to formal published opinions.

During 2008, only 4.4 percent of OIP’s written opinions were published, while 95.6 percent fell in that information and unpublished category.

But the problem with these “informal” opinions is that they are usually even more “advisory” in nature than the usual formal opinions since they are not fully legally researched and handed down.

And guess which “separate kingdom” legislative body takes full advantage of this?

A review of the OIP’s official opinions shows they are presented with a specific question of law and definitive “yes” or “no” answer.

But the informal ones are written as letters that generally discuss and “advise” rather than answer the question raised

This led to an informal opinion on the infamous 3.07(e) provision that Kaua`i voters were tricked into removing from our county charter last November. It contained wording of the ballot giving the impression that to vote “yes” would require the council to adhere to the state sunshine law when it actually removed a provision that limited executive sessions on Kaua`i to matters involving “claims”.

But when OIP finally addressed the matter they sent a lawyerly well-crafted letter that actually avoided the issue by writing it so it could be interpreted in two different ways. It stressed that the sunshine law must always be followed and separately said it had no jurisdiction over the charter provision. since it only deals with “Part I of HRS Chapter 92”, aka the sunshine law. It indicated that only the Kaua`i county attorney- or the 5th Circuit Court if someone were to bring suit- can opine on 3.07(e)

This allowed the council to claim vindication by reading it to have said that the OIP opines that as far as they’re concerned 3.07(e) doesn’t apply to the sunshine law and therefore, since the council must follow the sunshine law, 3.07(e) didn’t need to be followed.

That led to a bizarre little vignette at a recent council meeting where some councilmembers tried to clarify it all verbally with the deputy county attorney who refused to opine asking them to “put it in writing” and repeating like a mantra that “the agenda item as posted is legal”- including the reference to 3.07(e) which remains on executive session agendas even after the “claims only” section was removed by voters.

Recently the OIP opened an investigation into a complaint PNN brought. against councilmember Jay Furfaro for seeking to discuss- and solicit votes for- a piece of then un-introduced and un-agendaed legislation.

The 10 days for the response in the Furfaro case is long past and we still haven’t heard from OIP so today we requested an update.