OIP RULES FURFARO MEMO DISCUSSING DRAFT BILL NOT ILLEGAL ONLY BECAUSE IT WAS NEVER SENT
(PNN) -- The Office of Information Practices has ruled that Kaua`i Council Chair Jay Furfaro did not violate the Sunshine Law because, according to County Clerk Peter Nakamura, a letter to fellow councilpersons discussing and soliciting support for a draft bill was never sent.
But OIP Acting Director Cathy L. Takase said that if Furfaro’s letter “had been circulated to all members, it would constitute a discussion of the Board’s ‘official business’ in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill.”
The bill- one that would have allowed Transient Vacation Rentals (TVRs) on agricultural lands via “non-enforcement agreements”- and cover letter in question first appeared in a since-removed blog post by local real estate agent Ronnie Margolis in December of 2008.
When PNN published the letter with allegations of a Sunshine Law violation on Friday, December 19, 2008 the OIP opened a case (S INVES-P 09-5) and in January sent a letter asking Furfaro for a response.
But instead of Furfaro responding personally, in February Nakamura wrote a letter defending Furfaro claiming that the letter in question was never sent to councilmembers. The letter also included a defense saying that even if he did send the letter the contents weren’t in violation of the law.
The OIP’s “Memorandum Opinion,” addressed to PNN’s Editor/Publisher/Reporter Andy Parx, does not indicate whether the councilpersons who were listed as recipients of the letter were asked if they received it.
The opinion begins by noting the “Request for Investigation” saying
Requester asked for an investigation into whether a violation of the Sunshine Law occurred based upon the distribution of a letter dated November 28, 2008 from then Vice Chair Jay Furfaro to the remaining members of the Kauai County Council concerning a bill proposing amendments to Kauai County Ordinance No. 864.
It then states the simple “Opinion” stating that
Based upon representations made on behalf of Vice Chair Furfaro and the Council, OIP finds that no violation occurred.
The “Statement of Reasons for Opinion” goes on to say:
In response to OIP’s request, Kauai County Clerk Peter Nakamura provided a response to Requester’s complaint on behalf of Vice Chair Furfaro and the Council. Specifically, Mr. Nakamura stated that the November 28th letter was a draft letter that was never signed nor circulated to the members. Mr. Nakamura further states that, as evidenced by your complaint, this draft transmittal was somehow obtained by the public. We note that the copy you provided to OIP is unsigned, which is consistent with this statement. Accordingly, we find no substantiation for your complaint of violation.
It is interesting to note that the OIP did not address an issue raised by PNN regarding the use of the media, including on-line posting, to attempt to circumvent the prohibitions in the Sunshine Law. The representation that the “draft transmittal was somehow (emphasis added) obtained by the public” though it is consistent with the fact that Margolis never stated unequivocally from whom he obtained the bill and letter.
As to who actually did receive the letter, the opinion says that
Mr. Nakamura did state that the Council Chair alone was provided a copy of the draft “transmittal” letter and draft bill, in accordance with the Council’s standing practice, to consider approval for inclusion on the Council’s meeting agenda.
Disclosure to the Chair alone would not violate the Sunshine Law because discussion between two Council members is allowed under the two-member permitted interaction. See HRS § 92-2.5(a).
But then the memo gets to the heart of the matter.
Furfaro has stated that he has been engaged with the OIP over the past two years- and says he spent $1700 in the process- trying to establish a defense basically saying that even if it was sent it didn’t violate the law.
But the OIP disagreed setting a precedent and sending a message to Furfaro that this kind of communication is illegal.
We note, however, that given the content of the ‘transmittal” letter, we believe that if it had been circulated to all members, it would constitute a discussion of the Board’s ‘official business” in violation of the Sunshine Law’s open meeting requirement because the letter does more than transmit the draft bill. It specifically discusses the content of the draft bill and reasons why it should be adopted. A member’s expression of his or her views to other members on “official business” constitutes a prohibited discussion outside of a meeting regardless of whether the other members are physically present to hear an oral communication of those views or receive those views through other means, including through written correspondence. OIP Op. Ltr. No. 04-0 1 (position statements circulated and signed by members constituted discussions and voting outside of a meeting in violation of the Sunshine Law); HRS § 92-5(b)(no electronic communication shall be used to circumvent the spirit or requirements of this part to deliberate upon board business).
The opinion concludes by describing the “Right to Bring Suit to Enforce Sunshine Law and to Void Board Action” saying:
Any person may file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board. HRS § 92-12. The court may order payment of reasonable attorney fees and costs to the prevailing party in such a lawsuit.
Where a final action of a board was taken in violation of the open meeting and notice requirements of the Sunshine Law, that action may be voided by the court. HRS § 92-11. A suit to void any final action must be commenced within ninety days of the action.
The original letter was addressed to the following councilmembers :
Ronald D. Kouchi
Daryl W. Kaneshiro
Joann A. Yukimura
Thus far none have confirmed or denied receiving Furfaro’s cover letter. PNN plans no court action unless one or more of them come forward to say he or she received the letter from Furfaro.