SAME OLD DOG, SAME OLD TRICK:

SAME OLD DOG, SAME OLD TRICK: Many in the community are finally opening their eyes to the abuses of open government principles involved in a quest by the two dissident councilperson’s of late.

But if they are shocked at how both the public and even some of those they elected are given the mushroom treatment, while we’ve got their attention all we can do is quote Al Jolson- “you ain’t seen nothing yet”.

The matters that Tim Bynum and Lani Kawahara forced onto a future council agenda on Tuesday are but minor “first steps” toward cleaning up at least seven years of a concerted effort by Council Chair Kaipo Asing to evade, flout and pervert the Sunshine Law in order to avoid public scrutiny in matters of public affairs.

Bynum has complained bitterly in the past about one of the main vehicles for hiding what the council is doing- the “secret” official county attorney (CA) pubic policy opinions. That issue as received notice not just here but in the local newspaper and those that follow council doings are all too familiar with the practice.

It reeks of Star Chamber methodology whereby the council tells the public the council is compelled to do something baffling because they have a county attorney’s opinion... an opinion that they “can’t” reveal.

But although related, far worse is the practice of meeting in executive session (ES) to discuss prospective legislation and even bills that are on the table.

Just this past week the council met in secret by saying

(T)he purpose of this executive session is to consult with the Council’s attorney regarding the charter amendments adopted in the 2008 General Election and other related matters.

Pretty outrageous, eh? And this isn’t the first time.

These ES’s, as revealed for the first time this past Tuesday, are ostensibly to discuss the implementation of the “General Plan” charter amendment passed this past November- a matter of public policy if there ever was one.

You would think the drafters of the amendment who worked so hard to pass it would be up in arms. But you’d be wrong because not one has objected at any of the ES’s.

You would also think that this practice would be forbidden. In fact the very first provision of the Sunshine Law, §92-1 Declaration Of Policy And Intent, reads, in part

Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the 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. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people's right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.

There are of course legitimate reasons for holding closed meeting- lawsuits, personnel matters and the like. They’re addressed in 8 exceptions in §92-5(a)

But one of those exceptions, #4, contains a provision that has been abused so as to obliterate any pretense of following these principles, It reads:

§92-5 A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:...
(4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities.

Now obviously this is supposed to be read along with the principles and the rest of the law. If it weren’t then as long as “the board’s attorney” is in the room and speaks and they discuss “the board's powers, duties, privileges, immunities, and liabilities”- which covers just about everything the council does, including pubic policy- all meetings could be conducted behind closed doors in their entirety.

Despite the absurd result of interpreting the law this way, that is just what the county started to do gradually when Mayor Bryan Baptiste appointed County Attorney Lani Nakazawa who developed both the “secret opinion” and the principle that allowed 92-5(a)4 to be interpreted to cover anything she said it did- especially any possible “future litigation” as well as holding that the council’s “powers, duties and privileges” include discussing and drafting legislation... the very thing that’s supposed to be done in public.

But isn’t there an Office of Information Practices (OIP) to make sure this doesn’t happen?

You would think so, at least in theory. But in actuality what has happened is that any complaint, if it’s accepted by OIP and gets that far, is subject to what’s called an “in camera” review whereby the OIP can look at the ES minutes and decide if they are to be released.

And that’s exactly what happened in January of 2003 when, in the infamous “ES-177”, new councilmember Mel Rapozo apparently went ballistic and attacked the Kaua`i Police Department as the first volley in his campaign to remove newly appointed Chief KC Lum.

The OIP asked for the minutes, examined them and ordered them released. But the county then sued OIP and years later Circuit Court Judge Kathleen Wantanabe- a former Kaua`i deputy county attorney- ruled that the releasable parts of the minutes were “inexorably intertwined” with the legitimately discussed items and so nothing could be released.

At the time OIP was headed by a real open government crusader, director Les Kondo who was willing to go to the hilt to defend the Sunshine Law. But by the time the case came up the OIP had a new director though an appeal was promised its status is apparently “on hold”.

The council, under the tutelage of Asing, Nakazawa and the next CA Matthew Pyun, used this as a signal that they could pretty much allow the council to meet in ES on any subject they desired with impunity, including pending legislation as happened over and over during the contentious “Transient Vacation Rental Bill” passed last summer as well as with other matters.

It should be noted that the “charter amendment” ES’s have been held with unanimous votes, including Bynum’s and Kawahara’s. Bynum did on Tuesday protest the immense amount of money spent on “outside counsel” so far (up to $150,000) without what he characterized as a sufficient work product before being cut off by new County Attorney Al Castillo.