Monday, June 30, 2008


DON’T ALL BARK AT ONCE NOW: As the “Jeopardy!” theme plays for the Kaua`i County Council, the Mayoral Wheel of Fortune has prodded us to emulate the CNN style gossipy coverage of all the dirty speculation based on a dearth of facts.

But even the PBS news’ David Brooks and Mark Shields aren’t about to talk about our beloved rascals so we feel an obligation.

One result of our indulgence in this kind of conjecture is that no matter how reprehensible it is we’re bound to pale in comparison to the prevalent 24-hour a day enterformitactual cable blab-fests where posers wax psychotic about the political motivations and producers try to wedge Angela Jolie and Brad Pitt into the story.

But all this completive conjecture did spur a new notion that sounds like the best theory we’ve heard so far from the upper-case-challenged but always-astute jimmy trujillo.

He asked why Kaipo Asing wouldn’t agree to be a temp mayor and run for council again.

And we gotta admit, it sounds just like the Kaipo we all know and love. No debate, no squealing. no backstabbing, no eyeballs-to-eyeballs-to-eyeballs-to eyeballs...a real done deal.

As we said previously, all that Asing cares about is having this thing be done quickly and quietly. And like any other godfather he will do it himself if he has to.

Then the new Mayor would be either beholden to him or an actual ally giving him both power within the administration and a contract for 50 news episodes of The Kaipo Asing Show.

Asing’s a bit paternalistic way of saying “I know what’s right and I will do what’s best for the community - don’t tell me about the process laws” is a perfect fit here.

But the problem for Asing is that any attempt to talk about it with anyone on the Council, even indirectly, is strictly forbidden under the Sunshine Law having been decided in an actual Hawai`i circuit court case called “Right to Know Committee v. City Council City and County of Honolulu” (thanks to Charley Foster for the ruling).

Even though all councils’ business interactions must be public except for a list of 8 exceptions for executive sessions the law does allow that:

“Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought...”

The Honolulu Council, while determining and voting upon committee assignments in 2005 decided that meant they could hold serial one-on-one meetings to evade the law since the practice wasn’t specifically prohibited in HRS 92. But by reading all the sections of the Sunshine Law together the court said “no way”..

Here’s the pertinent part of what the appeals court said

Under the open-meetings requirement of the Sunshine Law, "[e]very meeting of all boards(fn5) shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 [1993] and 92-5 [Supp. 2006]." HRS § 92-3 (1993) (footnote not in original). This "provision[] requiring open meetings shall be liberally construed" while "provisions providing for exceptions . . . shall be strictly construed against closed meetings." HRS § 92-1.

The open-meetings requirement is not unlimited. See HRS §§ 92-3.1 (Supp. 2006); 92-4; and 92-8 (Supp. 2006). In addition to these exceptions, HRS § 92-2.5 excludes "permitted interactions of members" from the general rule.

§92-2.5 Permitted interactions of members. (a) Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.

(f) Communications, interactions, discussions, investigations, and presentations in this section are not meetings for purposes of this part.

Defendants assert that because HRS § 92-2.5(a) does not limit the number of these one-on-one interactions, nothing "prohibits one-on-one conversations from being serial, that is, after leaving one conversation, a Councilmember [sic] could engage another Council member [sic] in a discussion regarding matters relating to official board business."

Although HRS § 92-2.5(a) does not expressly preclude Council members from engaging in serial one-on-one conversations, HRS § 92-5(b) (Supp. 2006) provides support for concluding that the one-on-one communications used to deliberate on Resolution 05-243 were improper(fn6):

§92-5 Exceptions.
(b) . . . No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of [the Sunshine Law] to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

Stated differently, when the public body engages in conduct that may not violate any of the specific provisions in HRS §§ 92-1 through 92-13 (1993), but nevertheless "circumvents the spirit or requirements" of the Sunshine Law, that conduct is impermissible. We are left with the question of whether the serial one-on-one interactions used to deliberate on Resolution 05-243 "circumvent[ed] the spirit" of the Sunshine Law.

As the Hawaii Supreme Court recently observed:

First, the fundamental starting point for statutory interpretation is the language of the statute itself. Second, where the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Third, implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. Fourth, when there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists.
Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of the City and County of Honolulu, 114 Hawaii 184, 193-94, 159 P.3d 143, 152-53 (2007) (quoting Peterson v. Hawaii Elec. Light Co., Inc., 85 Hawaii 322, 327-28, 944 P.2d 1265, 1270-71 (1997), superseded on other grounds by HRS § 269-15.5 (Supp. 1999)).

The phrase "circumvent the spirit" of the Sunshine Law is far from plain and unambiguous. Thus, to ascertain the legislature's intent, this court should turn to the policy declaration in HRS § 92-1. It is the policy of our 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." HRS § 92-1 (emphasis added).

When Council members engaged in a series of one-on-one conversations relating to a particular item of Council business (the council resolution in this case), the spirit of the open meeting requirement was circumvented and the strong policy of having public bodies deliberate and decide its business in view of the public was thwarted and frustrated.

This ruling has been blatantly and consistently been violated by Asing and the Council as can be gleaned from the actual words of councilpersons where examination of many agenda items and their transcripts make it apparent that previous discussion has taken place. they’re even more apparent in the smoking-gun way bills and resolutions are sponsored by multiple members of the Council.

Just watch them. Many times you’ll see an impasse at a Kaua`i Council meeting. No one agrees and chaos not only ensues but brings things to a grinding halt.

The you’ll see on TV Asing say “we’ll take a brief recess” and after a fade out and fade in all of a sudden everyone knows their part, the script is read and everyone has agreed to a determination, although how the pact “happened” without anyone talking about it in secret has to be explained through either ESP or illegal communication..

What you missed if you weren’t there during the “brief recess” is what we used to call the Dance of the Sunshine Law. If you sit in the hall you’ll see a bunch of closed office doors and a flurry of scurrying staff, usually orchestrated by the county clerk, flitting to and fro from office to office with an occasional councilmember transversing the second floor walkway to another’s office or confabing one-one-one in an out of earshot corner.

Even a true one-on-one discussion between two councilmembers regarding who should be the new Mayor doesn’t fall under the two person exemption provision which allows it only “as long as no commitment to vote is made or sought”.

That doesn’t mean it won’t happen- old habits are hard to break. But when they do meet publicly next week it should be obvious if any of these illegal conversations have taken place. If we can prove it it could provide for a true constitutional crisis if all seven are preoccupied in a jail cell.

Well that is the news. Now the rumor behind the headlines

To update: We have heard from front-runner Mel Rapozo who says the specificity of the July 7 date he reported wasn’t “verified ... but it seems logical” so the meeting could be anytime from Monday the 7 to Friday July 11th according to the county’s press release.

We can also report that after a public appearance at the preview of her husband new smash-hit Sundance-destined “Taylor Camp” movie, JoAnn Yukimura was asked privately by various sources about her intentions and they report she has essentially said both she hasn’t decided and that she won’t say until after Baptiste’s service (July 6) .

Despite the diminishment of her popularity among some long time least a couple of long-time inside political observers told us they think she has the inside track in the November Mayoral election.

We will be working on getting comments from Asing and others during this week-long delay with all tips gratefully accepted. But we do wonder whether, if we are actually successful digging out their thoughts, we might be accused of aiding and abetting a serial conversation designed to circumvent the Sunshine Law.

And you thought they’ll be upset if they have to share a cell with just each other...


Anonymous said...

What makes Rabozo the front runner? No one else putting their name forward yet? Being in a race of 1 is the only way he'd be in a lead.

Andy Parx said...

Votes. Mel is the only one with two votes- his and Shaylene’s. And he’s got a good shot at Kaipo’s if Kaipo isn’t running because of their mentor-disciple relationship. It also helps that no one can legally talk about it with others. And who knows- if JoAnn is running in the election she could vote for him because she thinks she could beat him in the fall. He’s got a lot of little legs up for that fourth vote.