OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS.
(PNN) The state Office of Information Practices (OIP) has opened an investigation of the “unforeseen” executive session held at the June 3 meeting of the Kaua`i County Council.
As PNN reported last week, the un-agendaed secret meeting was held to discuss the attempt by Councilperson Tim Bynum to place an amendment to the council rules on the agenda for the purposes of clarifying the rule that states that Chair Kaipo Asing could not block councilmembers from introducing bills and resolutions, as Bynum alleges Asing has routinely done for at least two-and-a-half years.
Bynum has said and presented documentation showing how Asing has used an administrative rule provision requiring Asing “initial” agenda items to block introduction of measures.
A complaint filed by Kaua`i resident Brad Parsons on June 4 asks for an “investigation and enforcement actions by all means necessary” and cites both PNN’s report and one that appeared in the local paper.
Parsons asked that:
the OIP look into the appropriateness of the use of Executive Session during the events of Wed. June 3, 2009, by the Kaua`i County Council described in the above reports. I would also request that the OIP look at the all of the events and supporting documentation at Kauaiinfo.org to develop an effective case for broader action on these unacceptable matters inconsistent with "one man, one vote" standards of representative democracy.
In response OIP launched investigation S INVES-P 09-08 and on June 5 sent the following letter to Asing.
Dear Chair Asing,
The Office of Information Practices has received a complaint from Mr. Brad Parsons concerning the Kaua`i County Council (“the Council). Specifically Mr. Parsons asks whether the executive sessions held on June 3, 2009 violated part 1 of section 92 Hawai`i Revised Statutes (the Sunshine Law). A copy of Mr. Parson’s (sic) 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 the OIP no later than ten 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,
To clarify our coverage of last Thursday, Bynum attempted to place the matter on the agenda by making a “motion to amend” when the matter of the agenda came up at the meeting. That motion was seconded by councilperson Lani Kawahara but the motion was apparently never voted upon by the council.
Instead County Clerk Peter Nakamura reminded Asing that the approval of the agenda was left pending due to a previous motion for approval and second.
The council’s vote to approve was apparently approval of the agenda, not the amendment even though according to rules of order the amendment should have taken precedence.
According to the Sunshine Law and previous OIP rulings “unanticipated” matters that come up during a council meeting may be heard in executive sessions but that is only for items that are actually on the agenda.
Each council agenda contains a caveat saying
(p)ursuant to Haw. Rev. Stat. (“H.R.S.”) §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance.
As to adding a matter to the agenda the Sunshine Law reads
No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.
It should be noted that both conditions must be present for the matter to be rejected as an addition to the agenda. Since the current rules call for all councilmembers to be able to add items to the agenda it is unknown how clarifying that council rule- a basic tenet of American republican representational government- would be of “either major importance” or “affect a significant number of persons”.
At the meeting county Attorney Al Castillo briefly maintained that both conditions were met he did not say how, saying only that “council rules are important” and “affect everyone on the island”.
He then repeatedly cut off discussion by of the matter councilmembers Bynum and Kawahara in public session and demanded an executive session, even though his role is advisory.
Those wishing to view the meeting this weekend were greeted by a blank screens on Ch. 53 of Ho`ike Community Television which is paid by the county to tape and cablecast the meetings.
Although PNN called Saturday to alert them to the situation and talked to an employee who said he would take care of the matter, the screen remained blank all weekend during a time when most people are known to watch the meetings, especially those that have been controversial.
Asing and County Clerk Nakamura are in charge of administering the council’s portion of the Ho`ike contract and determine which council sessions will be presented on Public access TV.
In the past OIP has ordered that minutes of executive sessions that were illegally held must be made public immediately. In one such ruling the county sued the OIP delaying release for two years.
Presuming the OIP letter to Asing that was sent Friday arrived yesterday (6/9) a response is due June 19.