OIP RULES ASING HELD '09 EXECUTIVE SESSION ILLEGALLY; MEETING WAS KEY IN CHALLENGE TO ABUSE OF POWER CHARGES AGAINST FORMER CHAIR WHICH LED TO HIS OUSTER.
(PNN) A key Kaua`i County Council Executive Session (ES) held more than two years ago was not "allowed under the Sunshine Law," according to a "Memorandum Opinion" issued by the Office of Information Practices (OIP) on Friday (June 29, 2012).
The June 4, 2009 ES was a major skirmish in the war between former Council Chair Kaipo Asing and Councilmembers Tim Bynum and Lani Kawahara over Asing's secrecy and dictatorial rule- a war which led eventually to the end of Asing's decades long political career when he was unseated in the 2010 election.
The opinion stated that:
In appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added. See HRS § 92-5(a)(4) (Supp. 2011).
However, given the length of the executive session and the fact that the County Attorney publicly announced his advice on whether the proposed item could be added to the agenda by vote, OIP infers that the discussion was not limited to advice on that legal question. Because the Council failed to rebut that inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and failed to provide any evidence or arguments to meet its burden to justify the executive session, OIP cannot find that the executive session was allowed under the Sunshine Law.
As PNN reported on June 5 2009 the OIP had previously warned that holding such an ES would be a violation of the state open meetings or "Sunshine Law" (HRS 92). In the article PNN also detailed issues over Asing's abuses of power according to essays by Bynum and Kawahara. The essays were posted at their kauaiinfo.org web site which the two used to post documents and information on Asing's penchant for secrecy and, in the dust-up at hand, his use of ambiguous council rules to block Bynum from introducing measures before the council.
The opinion itself says that:
Requester (Bra Parsons) asked for an investigation into whether the Kauai County Council (Council) violated the Sunshine Law by holding an executive session to discuss a motion to add an item to the agenda for its meeting held on June 3, 2009 (the Meeting). Unless otherwise indicated, this opinion is based solely upon the facts presented in Requester’s e mail correspondence dated June 4, 2009 and attached materials. Although OIP requested the Council’s position on Requester’s complaint, including a detailed explanation of the events in question, in letters dated June 5 and December 2, 2009, the Council did not submit its position or any factual explanation of the events. OIP thus takes the factual accounts in materials submitted by Requester, and any reasonable inference therefrom, as uncontested. Requester relied primarily on the facts presented in an article in The Garden Island newspaper: Michael Levine, Following the Rules.
Levine's article, upon which OIP attorney Jennifer Brooks said she based most of the opinion, describes the meeting, saying:
With the only two avenues of adding an item to the agenda — with Asing’s initial or through a floor motion — effectively closed off, Asing, who finished fourth in voting in November’s election behind Vice Chair Jay Furfaro, newcomer Derek Kawakami and Bynum, has essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.
After Bynum made the motion at the outset of Wednesday’s meeting, Asing moved the discussion to the end of the agenda.
Five hours later, after dealing with the six-page agenda, Asing said Section 92-7(d) of the Hawai‘i Revised Statutes precluded the council from voting on or even discussing Bynum’s resolution because it is of “reasonably major importance and action thereon by the board will affect a significant number of persons.”
Bynum provided to his fellow council members and the public a May 15 e-mail correspondence between himself and state Office of Information Practices staff attorney Jennifer Brooks in which she told him his proposed resolution “does not appear to be of reasonably major importance or to affect a significant number of people” and “appears suitable to be added to the agenda by a 2/3 vote, and the council would be acting in good faith in so adding it.”
Castillo said the unanticipated matter should be discussed in executive session to protect the council from potential liability. After a 5-2 vote approving the secret session — Bynum and Lani Kawahara dissented — the council closed its doors for about an hour.
When it reconvened, Castillo told the council “the proposed resolution encroaches upon the duties of the chairman as the presiding officer of the council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this county.”
“The people of Kaua‘i did not have an opportunity to know what was placed on the agenda. That’s the reason for the Sunshine Law,”Castillo said, adding that there are rules in place to govern how much time must elapse between the public posting of the agenda and the meeting to which it applies.
After Asing called the meeting back to order and ended discussion by quickly adjourning it to comply with Castillo’s advice, the chair was asked if there were plans to include Bynum’s resolution on the agenda for the next meeting.
“No,” he said.
When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”
“I am just following the rules of the council,” he said.
Readers can access additional PNN coverage of the matter via Parx News Daily archives from 2009. Some key posts include:
Tuesday, June 9, 2009: (PNN) OIP OPENS INVESTIGATION OF COUNCIL’S EXECUTIVE SESSION ON DENYING AGENDA ACCESS TO COUNCILMEMBERS
Wednesday, June 10, 2009: DON’T LET GO, DON’T LET GO
Thursday, June 11, 2009: DARKNESS, DARKNESS
Friday, June 12, 2009: ON AND ON, ON AND ON, ON AND ON
Monday, June 15, 2009: A DAY AT THE RACES
Wednesday, June 17, 2009: (PNN) KAWAHARA, BYNUM OUTMANEUVER ASING, NAKAMURA; DISCUSSION OF RULE CHANGES PUT ON FUTURE AGENDA.
Thursday, June 18, 2009: SAME OLD DOG, SAME OLD TRICK:
Because the OIP opinion is not (yet) available on line we are posting the entire "Statement of Reasons for Opinion" below:
Requester asked for an investigation and enforcement action against the Kauai County Council based on various news reports of the Meeting. Specifically, Requester questioned whether the Council’s executive session held to discuss a motion to add an item to its agenda was proper under the Sunshine Law.
At the time of the Meeting, the Council’s Rule 10 allowed any member to introduce any bill or resolution, but required bills and resolutions to be initialed by the Council Chair before being placed on an agenda. Certain members complained that the Council’s then-Chair would not initial bills and resolutions they requested, thus preventing those items from being placed on the Council’s agenda. One of the members thus affected, Tim Bynum, brought a motion during the Meeting to add to the Meeting’s agenda a resolution to amend Rule 10 to clarify that the Council Chair could not use the initialing requirement to indefinitely postpone hearing bills or resolutions requested by a Council member. The Chair moved discussion on Mr. Bynum’s pending motion to the end of the Meeting’s agenda.
When the Council reached the end of its agenda five hours later, the Chair, supported by County Attorney Al Castillo (County Attorney), stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on because the issue was of reasonably major importance and action thereon would affect a significant number of persons. Mr. Bynum responded by sharing an e-mail dated May 15, 2009, from OIP Staff Attorney Jennifer Brooks, which advised that the proposed resolution did “not appear to be of reasonably major importance or to affect a significant number of people,” that it “appear[ed] suitable to be added to the agenda by a 2/3 vote,” and that the Council “would be acting in good faith in so adding it.”
The County Attorney then advised the Council, which still had not voted on the motion to add an item to its agenda, to discuss the motion in executive session to protect the Council from potential liability. The Council voted 5-2 in favor of going into executive session, apparently for the purpose of consulting with its attorney, and then went into a closed session for about an hour. When the public meeting reconvened, the County Attorney announced that “the proposed resolution encroaches upon the duties of the Chairman as the presiding officer of the Council. Therefore it is of reasonably major importance. The way that the council is run affects all of the people in this County.” The meeting was adjourned shortly thereafter, with no vote having been taken on the motion. As an initial matter, OIP notes that the e-mail setting forth OIP’s advice did not put the Council under any obligation to add the item to its agenda. An item may be added to a filed agenda only with “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.” HRS § 92-7(b) (Supp. 2011). Thus, even if an item was qualified to be added to a Council agenda because it was not of reasonably major importance and action on it would not affect a significant number of persons, the Council’s failure to add the item to its agenda would not violate the Sunshine Law because it was up to the board to decide whether to add the item, and there was no vote to do so. OIP further notes that the c-mailed advice given to Mr. Bynum is consistent with the informal advice OIP has given in other situations regarding a board’s ability to add an alteration to the board’s internal procedures to an agenda by vote: the persons affected by a change to the Council’s rules regarding a member’s ability to place an item on the agenda would be only the nine Council members, who do not represent a significant number of persons when compared to the Council’s entire constituency.
Requester argues that the Council’s filed agenda stated that the Council can hold an unanticipated executive session “on any agenda item,” and based on that, Requester questions whether the executive session was proper when the issue being discussed was not an agenda item itself but instead was whether the Council could place an item on the agenda. The Sunshine Law anticipates that items may be added to an agenda and that an executive session not anticipated in advance need not be listed on a board’s agenda. $HRS § 92-7 (providing that notice of an executive session necessary only “when anticipated in advance” and explaining the requirements for adding an item to an agenda that has already been filed). Moreover, while section 92-5(b), HRS, bars a board from discussing matters not directly related to purposes listed in section 92-5(a), HRS, one of the permitted purposes for an executive session is “[t]o consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities.” HRS § 92-5(a) (5). OIP therefore believes that in appropriate circumstances, a board may go into an unanticipated executive session with its attorney to discuss its ability to add an item to its agenda, so long as the board does not discuss the underlying item proposed to be added.
The question remaining to be resolved is whether the Council’s executive session discussion was, in fact, limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. As mentioned above, despite having been asked to provide its position on the complaint, including a detailed explanation, the Council did not provide any explanation of what it actually discussed during the executive session. OIP is required to receive and resolve complaints under the Sunshine Law, and in doing so to strictly construe the exceptions to the open meeting requirement against closed meetings. HRS §S 92-1 and 92F-42(18) (Supp. 2011). Thus, when a member of the public complains to OIP that a Council executive session was not in compliance with the Sunshine Law, the Council has the burden to justify that executive session to OIP. See id. In this case, the Council failed to meet its burden when it provided no response to OIP.
Additionally, the facts presented by Requester raise a reasonable inference that the executive session discussion was not limited to the apparent topic for which it was called, which was consultation with the County Attorney regarding the Council’s ability to add a proposed item by vote. In the public portion of the meeting, the Chair and County Attorney had already announced their conclusions on the question the board was supposedly considering, when they stated that Mr. Bynum’s motion to add a resolution clarifying Rule 10 to the agenda could not be voted on and the proposed resolution could not be added to the agenda because the issue was of reasonably major importance and action thereon would affect a significant number of persons. The County Attorney repeated his opinion when the Council emerged from the executive session, which suggests that neither the Council nor the County Attorney was primarily concerned with protecting the County Attorney’s advice on the question of whether the Council could add the proposed item to its agenda by vote. The length of the executive session, approximately an hour, also suggests that the Council’s discussion was not limited to that fairly straightforward legal question.
From the length of the session and the fact that the County Attorney’s advice was publicly announced, OIP infers that the Council’s discussion was not limited to consultation with the County Attorney regarding the Council’s ability to add the proposed item to its agenda by vote. Because the Council failed to rebut this inference by explaining what discussion occurred during the executive session and why it properly fell within an executive session purpose, and did not in any way attempt to meet its burden to justify the executive session, OIP cannot conclude that the executive session was allowed under the Sunshine Law.