CLERK RESPONDS TO OIP IN FURFARO CASE

CLERK RESPONDS TO OIP IN FURFARO CASE: The Office of Information Practices (OIP) has received a response to it’s investigation of the case PNN brought against Kaua`i Councilmember Jay Furfaro for distributing a non-agendaed bill to fellow councilmembers and soliciting support from them in an apparent cover letter.

But the response, which comes not from Furfaro but from Kaua`i County Clerk Peter Nakamura, contains only a limited, equivocal “denial” of their distribution and then goes on to include an “assuming for argument sake (it did happen)” section referring to a seemingly inapplicable “unpublished” OIP memorandum opinion given in January.

Nakamura’s letter to OIP Attorney Jennifer Z Brooks is reproduced in full at the end of this article.

The allegations detailed by PNN last December arose after Furfaro- or someone- apparently forwarded a bill- originally drawn up by outgoing councilperson JoAnn Yukimura- to local real estate agent Ronnie Margolis who posted it on his blog along with a cover letter from Furfaro addressed to the councilmembers at the time, asking for their support for the measure.

If it was sent to and received by the councilmembers it would appear to be a blatant violation of the state Sunshine law which, with few but detailed “executive session” exceptions, broadly bans councilmembers from discussing most matters outside of a duly agendaed meeting and strictly forbids soliciting support for a measure, as we detailed in December.

In mid-January the OIP sent a letter to Furfaro asking for an explanation as to the contention that “ 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”)”.

Nakamura’s reply letter begins with a lengthy and for the most part irrelevant discussion of the circumstances preceding any purported distribution of Furfaro’s letter, explaining it’s origins with Yukimura and Furfaro’s interactions with Chair Kaipo Asing- who took over the chair from Furfaro when the new council took office on Dec. 1- in unsuccessfully trying to get it on the council’s agenda in December.

Nakamura then denies that the letter was sent but limits that denial to distribution “on or about November 28”.

Nakamura wrote that

(T)he draft November 28, 2008 letter was never finalized and signed by Vice Chair Furfaro during the time frame alleged and, more importantly for Sunshine Law purposes, never distributed to other Councilmembers on or about November 28, 2008. Because the letter was not transmitted, there was no attempt to solicit other Councilmembers' votes regarding the subject matter of the letter outside of a duly noticed meeting. Consequently, no violation of part I of chapter 92, H.R.S. including, but not limited to, Haw. Rev. Stat. §92-2.5, occurred.

The emphasis on the word “never” is in the original despite the fact that it was qualified two different ways, once by saying “on or about November 28, 2008” and the second time by saying it was “never finalized... during the time frame alleged”.

Nakamura also denied that any “series of private one-on-one discussions” of the matter occurred but also qualifies that with a “since...then” clause, saying:

“Further, since the draft transmittal letter and proposed draft bill was not circulated in the manner alleged, there was also no series of private one-on-one discussions (i.e., serial communications) on the matter, as was the subject of OIP Opinion Letter No. 05-15.”

Mr. Nakamura’s letter doesn’t preclude the fact that the letter could have been sent to councilmembers after or before Nov 28 nor does it say unequivocally that it was never sent to the addressed councilmembers (other than the Chair for purpose of it being placed on the agenda).

But perhaps the strangest part of the letter is a section that seems to essentially say “he didn’t do it but if he did do it, it was allowed”

Nakamura wrote:

“Even assuming, for the sake of argument, that Vice Chair Furfaro had circulated the draft letter and bill to other Councilmembers in advance of a duly noticed meeting on the matter, a recent OIP memorandum opinion to the Council strongly suggests that the advance circulation of such documents is permissible as long as there is no discussion of or voting on the proposed ordinance amendments outside of a duly noticed meeting on the matter. (See enclosed OIP Memorandum Opinion dated January 14, 2009 re: Sufficiency of Agenda and Circulation of Proposed Amendments, #S RFO-G 09-6).”

The problem with that is that the “January 14 memorandum opinion” has nothing to do with non-agendaed item circulation nor soliciting support from other councilmembers for the bill.

Rather it was written in response to a September question asked of OIP by Councilperson Tim Bynum regarding amendments to a bill already agendaed and their discussion before they are officially on the table and their circulation in light of the bill’s stated purpose. It characterizes Bynum’s request by saying:

Requester seeks an opinion on whether the agenda language for the Kauai County Council's ("Council") September 16, 2008, meeting would have allowed the Council to discuss amendments to a bill, and secondly, whether proposed versions of the bill could be circulated before the Council meeting.

It’s “Opinion” section states that:

1) The Council's agenda for its September 16, 2008, meeting did not adequately describe Bill no. 2274, Draft 1, and all of its amendments. Although two areas of amendment were anticipated and listed on the agenda, the agenda should have listed all the major topic areas to be amended.

Proposed amendments to Bill no. 2274, Draft 1, could have been circulated among board members before the meeting as long as there was no discussion of or voting on the proposed versions before the meeting.

2) Proposed amendments to Bill no. 2274, Draft 1, could have been circulated among board members before the meeting as long as there was no discussion of or voting on the proposed versions before the meeting.

Nowhere does it deal with the situation in the OIP’s investigation of the matter at hand where not only was a bill which was not yet on the agenda being allegedly transmitted to sitting councilpersons but it was sent along with a cover letter soliciting support for the measure

If indeed the bill and letter were never- and we mean never- distributed to anyone other than the chair before it finally appeared on the agenda in mid January (when it was referred to the Planning Department) then it would behoove both Furfaro and Nakamura to state that unequivocally rather than qualifying the answer by saying it never happened “on or about Nov. 28” and through the use of other such evasive language.

If that is the case then it would seem that, despite the fact that the cover letter was addressed to sitting council members and did solicit a vote, it was never sent nor received in any manner at any time and so the complaint would seem to be moot.

But many questions remain such as why exactly Nakamura felt the need to include the “if he did do it” section at all if Furfaro didn’t send it- especially given the “misdirection” of the irrelevant OIP citation.

It should be noted that the letter solicited support for the measure which, if sent and received would be a violation of the law no matter when it occurred, even after the bill was introduced.

Evasive answers notoriously indicate there’s much more to the story and we urge the OIP to further investigate and obtain a full, blanket, unequivocal denial that the letter was ever sent to councilmembers by Mr. Furfaro and confirmation from those to whom the letter was addressed that it was not received..

Furfaro’s original cover letter at issue appears in full at the bottom of our December post.


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Dear Ms. Brooks:

This responds to your January 13, 2009 letter to Kauai. County Council Vice Chair Jay Furfaro ("Vice Chair Furfaro") regarding the matter above.'

Your letter stated that the Office of Information Practices ("OIP") had received a complaint from Mr. Andy Parks asking whether the distribution of a letter dated November 28, 2008 from Vice Chair Furfaro to all Kauai. County Councilmembers violated part I of chapter 92, Hawaii Revised Statutes ("H.R.S."). In this regard, a copy of Mr. Parks' complaint was enclosed with your letter.

Your letter further asked the Kauai. County Council ("Council") to respond to Mr. Parks' complaint, and to set forth the Council's position on the matter and any other information the Council deems relevant to its position.

Turning to the complaint, Vice Chair Furfaro indicates that the November 28, 2008 letter was merely a draft of a transmittal letter regarding a bill proposing amendments to Kauai County Ordinance No. 864 (relating to transient vacation rentals).

The proposed draft bill was prepared by former-Councilmember JoAnn A. Yukimura; however, her term as Councilmember expired before the opportunity arose for the proposed draft bill to be introduced. 2 Notwithstanding her departure from office, Vice Chair Furfaro desired to continue to pursue the introduction of this proposed draft bill.
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1 For your information, on December 1, 2008, Bill "Kaipo" Asing succeeded Mr. Furfaro as Chair of the Kaua`i County Council for its 2008 – 2010 term.

2 Ms. Yukimura's term as Councilmember ended on December 1, 2008; she was not re-elected to the Council as she instead unsuccessfully ran for the Office of Mayor in the 2008 General Election.
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In the course of the draft bill's preparation during the 2006-2008 Council term, though, former-Councilmember Yukimura may have been in possession of a digital document file of the proposed bill and draft transmittal letter. As evidenced by Mr. Parks' complaint, members of the public then somehow obtained a digital copy of the draft transmittal letter and proposed draft bill.

Following through on his desire to introduce the proposed draft bill, Vice Chair Furfaro asked that the proposed draft bill prepared by former-Councilmember Yukimura be introduced at the Council's December 17, 2008 meeting, which was after the 2008-2010 Council term had commenced on December 1, 2008. However, in a December 11, 2008 memorandum, Kaua`i County Council Chair Bill "Kaipo" Asing ("Council Chair Asing") informed Vice Chair Furfaro that the bill would not be placed on the 2008-2010 Council's December 17, 2008 meeting agenda because of the volume of outstanding matters that were then pending before the Council, and suggested that the proposed draft bill instead be placed on the 2008-2010 Council's January 14, 2009 meeting agenda. 3 A copy of Council Chair Asing's December 11, 2008 memorandum to the Vice Chair is enclosed in this regard.

Because the bill was not approved for placement on the Council's December 17, 2008 meeting agenda, the draft November 28, 2008 letter was never finalized and signed by Vice Chair Furfaro during the time frame alleged and, more importantly for Sunshine Law purposes, never distributed to other Councilmembers on or about November 28, 2008.4 Because the letter was not transmitted, there was no attempt to solicit other Councilmembers' votes regarding the subject matter of the letter outside of a duly noticed meeting. Consequently, no violation of part I of chapter 92, H.R.S. including, but not limited to, Haw. Rev. Stat. §92-2.5, occurred.

Further, since the draft transmittal letter and proposed draft bill was not circulated in the manner alleged, there was also no series of private one-on-one discussions (i.e., serial communications) on the matter, as was the subject of OIP Opinion Letter No. 05-15.

Even assuming, for the sake of argument, that Vice Chair Furfaro had circulated the draft letter and bill to other Councilmembers in advance of a duly noticed meeting on the matter, a recent OIP memorandum opinion to the Council strongly suggests that the advance circulation of such documents is permissible as long as there is no discussion of or voting on the proposed ordinance amendments outside of a duly noticed meeting on the matter. (See enclosed OIP Memorandum Opinion dated January 14, 2009 re: Sufficiency of Agenda and Circulation of Proposed Amendments, #S RFO-G 09-6).
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3 In keeping with the Council's procedure and protocol regarding the introduction of such proposed draft bills for Council consideration, the bill (and by extension its accompanying transmittal letter) first required approval of the Council Chair before being placed on the Council's meeting agenda.

4 As mentioned, the Council Chair did review the draft November 28, 2008 letter, but only as a function of the Council's standing practice of determining whether it and the accompanying draft bill should be approved for inclusion on the Council's December 17, 2008 meeting agenda.
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Thank you for the opportunity to respond to the allegations contained in Mr. Parks' complaint to your office. Should you have any questions, or require further information, please do not hesitate to contact me through the Council Services Division, Office of the Kaua`i County Clerk.

Sincerely
Peter A Nakamura
Kaua`i County Clerk