Saturday, March 8, 2008


DON’T FEED ME A CARROT AND TELL ME IT’S A BONE: Walter Lewis’ column in today’s local paper again delineates some of the illegal conspiracy to violate HRS 92 the State Sunshine Law by the last two county Attorneys and the County Council, this time naming names but again missing the point.

When conducting County business secrecy is not necessarily illegal although many of us wish it was. What is illegal is conducting public policy under the guise of legitimate needs for conducting secret litigation-related sessions with their attorneys.

The real focal point of the illegal activity that has gained popularity through the paternalism of Council Chair Kaipo Asing and his ally former Mayor, now Councilwoman, lawyer JoAnn Yukimura is the notion that just because there are legalities involved public policy can be conducted behind closed doors in secret “executive sessions”.

By definition, passing or even considering a bill for a law involved “legal issues”

The “Declaration of policy and intent” in the preamble to the sunshine law, HRS 91-1 is explicit in saying:

“In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. 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. [L 1975, c 166, pt of § 1]” (emphasis added)

This law has not only been violated but, despite the public outcry over hiding public policy under the guises of the allowable exception to the open meeting provisions of wanting to “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)8] the Council has effectively been able to repeatedly conduct public policy behind closed doors on bill after bill after bill for more than five years

Lewis, an attorney, has pointed out part of the problem. It is not a matter of secrecy as much as it is manipulation of a perceived attorney-client relationship between the County Attorney (CA) and the Council that now uses that privilege to hide every CA opinion on public policy from the public, enabling the Council to pass bills based on alleged legal opinions that they refuse to allow the public to see.

Former CA Mike Belles said a couple of years ago that it never even occurred to him to keep public policy opinions secret- and no CA previous to the Baptiste administration ever thought to do so either.

Nakazawa along with first Asing and now Yukimura- an avowed fan of the Sunshine Law despite her penchant for secrecy in practice- have effectively turned HRS 92 on it’s head yielding an absurd reading of it that ignores the declaration of policy and intent of the law.
But then the law always has little effect on reality on Kaua`i, a separate kingdom indeed

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