Friday, June 17, 2011


THE AGE OF NEFARIOUS: Sometimes watching a Kaua`i County Council meeting is like reading a redacted document that leaves in only the articles, conjunctions and punctuation. You know something must be going on but damn if you know what... or more to the point, why.

Often it seems like well orchestrated kabuki where you missed an act or two, especially when they're all on the same page of the script but only they have seen it.

Why it's as if they all discussed what was going to happen before the cameras rolled. But that would be an illegal violation of the state Sunshine Law and they'd never do that, would they?

Well not only would they, this council has actually written violations into their rules by assuring that members who want to introduce bills share them with both Chair Jay Furfaro- who insisted on the procedure- and the chair of the appropriate committee where the bill will be sent.

Only two members of a board are permitted to discuss anything not on an agenda and even they they can't commit to a vote.

But while Furfaro is infamous for not "getting" the prohibition on "serial one-on-one communications" and doesn't seem to care who knows it, there's a bit more sophistication to similar violations over in Honolulu.

Civil Beat's Mike Levine- who cut his Hawai`i teeth busting the Kaua`i Council's inability to follow simple open meeting laws- smelled a rat yesterday and wrote:

Hours before soon-to-be-former Honolulu City Council Chair Nestor Garcia announced his plan to step down, numerous council members seemed to be well aware of the impending change.

How did those members learn about the plan if the Hawaii Sunshine Law requires six days of advance notice before any public meeting with more than two members of the City Council?

But unlike on Kaua`i where councilmembers have a "so what" attitude toward sunshine violation, their Honolulu brethren have not only pre-decided the matter but apparently pre-decided how to cover up their pre-decision.

Levine first describes a similar Honolulu council reorganization case six years ago when the Office of Information Practices (OIP) first banned those serial one-on-one communications and then describes what happened when he started asking questions.

The opinion was sent to (then-City Council Chair-and current Hawaii senator-Donovan) Dela Cruz, but the eight other council members were copied. One of them was Garcia. Just two others remain on the council today: Ann Kobayashi and Romy Cachola.

Kobayashi and Cachola each expressed support for a reorganization Wednesday morning, telling Civil Beat they'd likely vote in favor of installing Ernie Martin as council chair. But both were careful to avoid revealing how they'd come to be aware of the coup.

"That's always the question, and it's part of why a lot of us say we don't know exactly what's going on," Kobayashi told Civil Beat. "We do it by circulating a resolution, and if you don't support it, you don't sign onto it. It's not like over at the Legislature where those guys can go into a closed room and have a meeting."

Unless someone steps forward to volunteer that they violated the Sunshine Law — or unless there's a paper trail of a series of written or electronic one-on-one communications — it'll be hard to prove a violation of the Sunshine Law took place.

Garcia's insistence that the shake-up was his idea and his idea alone gives his colleagues a cover story.

Despite the attempts to be careful not to violate the Sunshine Law, the question remains whether a violation took place.

Ikaika Anderson, who would become council vice chair if the resolution is approved as written, told Civil Beat Wednesday he had a conversation with Garcia about the reorganization.

"He's comfortable with moving forward," Anderson said. "Nestor Garcia has told me that he's committed to seeing the council move forward in the best interest of the taxpayers of Honolulu."

At his press conference, Garcia in turn said he'd had a conversation with Martin about 30 minutes earlier.

Those two discussions alone could constitute a violation of the law — oddly enough, by the man who's being ousted and not any of the possible conspirators.

It's hard to believe that would be enough to put the proposal in jeopardy if the majority of the council is ready for a change in leadership, but it might mean the public isn't going to get any further explanation for the ouster from members at the council's next public meeting, where the vote will be held to install new leadership.

The "circulation" of a bill or resolution before it's on the agenda is a favorite trick on Kaua`i as we saw when Furfaro spent almost a year battling with OIP over a letter and proposed bill addressed to all the other councilmembers which, he claims, was never actually sent, although it was posted on-line.

While OIP cleared Furfaro of the charges because they couldn't show he actually sent the letter and bill, they didn't comment on the fact that it appeared on-line where other councilmembers could presumably see it.

The problem is that in the age of the internet, anyone can post anything on-line- even do it anonymously- even a bill or resolution, avoiding any possibility of a paper trial to prove a Sunshine law violation.

The OIP has proposed that the legislature take a new look at the Sunshine Law in the age of the internet and while some loopholes like this need closing it's anyone's guess what the lege will do once they open the law for review.

But whatever happens you can bet that the Kaua`i Council won't be letting the sunshine in anytime soon... and won't really care who knows it.

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