Tuesday, July 29, 2008


LEGAL BEAGLES OR BRAINLESS BUFFOONS? It appears from last week’s discussion by the Kaua`i County Council- as accurately portrayed in today’s local paper - that councilmembers have made the leap from being merely ludicrous to absolutely insane when it comes to withholding County Attorney opinions on public policy matters.

If, as Mel Rapozo is quoted as saying, “Kaua`i is unique” it’s because councilmembers apparently think they aren’t subject to state law.

Because the Sunshine Law - which requires open meetings be the norm - specifically bans the discussion of public policy behind closed doors and does not make an exception for the “attorney-client” loophole the council has used to hide the basis for enacting legislation.

Sunshine laws are based on the premise that bodies of elected and appointed officials are different from other organizations and businesses. They are not subject to the same laws that allow for privacy of information because, in dealing with public policy, they are seen as representatives of the people and those people have a right to watch and comment upon their official actions.

For anyone who hasn’t read the Declaration of policy and intent contained in HRS chapter 92, here it is:

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.

Note that the law was enacted to cover the “formation and conduct of public policy”.

And note that it doesn’t recognize- or even mention the “attorney-client privilege” that others enjoy but limits “boards” to discussing in closed session only that what is specifically exempted from open meetings requirements.

The Sunshine Law contains a section, 92-5(a), that details those eight specific reasons a meeting may be held in secret. And discussion of attorney-client privileged material is not among the defined things they may do behind closed doors.

HRS 92-5(a)4 does allow them to “consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities”;

But 92-5(b) specifically says that

In no instance shall the board make a decision or deliberate toward a decision in an executive meeting on matters not directly related to the purposes specified in subsection (a).

Pretty damn clear, eh? But it even says:

No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

As we reported in June that second sentence has recently been adjudicated in Right to Know Committee v. City Council City and County of Honolulu to mean that they can’t use any “serial” method such as circulating paperwork from one to another to avoid the requirement they keep public policy deliberations and decisions completely available to the public.

Paperwork? Like maybe a County Attorney’s opinion?

But judging by the conversation last Wednesday we don’t need no stinkin’ Sunshine laws on Kaua`i. The council will decide when they want to tell us what deliberations they want us in on and guess what- there are none, if they can get away with it.

The attorney-client privilege is specifically not a part of their “privileges” in the law but you wouldn’t know it from the way the council has not just used it to keep the public policy opinions from the public but, in absurd bit of through the looking glass nonsense, has gone into secret executive sessions to discuss the public policy contained in those opinions- opinions that they requested in the first place.

Therefore any public policy question- especially ones that they don’t want to have done in the light of day for fear of the political repercussions- can be submitted for a CA “opinion” and then forever remain in the council’s black hole of executive sessions

If the effect of keeping a County Attorney’s opinion from public eyes is allowing public policy to be conducted in secret what part of that equation can be changed to make the law whole?

Yeah, We thought so too. Don’t all talk at once, councilmembers.

By the council’s reasoning we can assume the whole Sunshine law is invalid as long as they ask the County Attorney about whatever they want to hide from the public.

The problem is that the council says they are such idiots that they cannot distinguish actual litigation from potential litigation.

In theory every action- every law they enact, every resolution they consider, every expenditure they approve- is subject to litigation. But in actuality there are lawsuits, and there is public policy.

You know lawsuits by their tell-tale stamp from the courts establishing that they have been filed. You know the public policy by the fact that you are discussing it to provide for the legitimate functions of passing laws and the like.

The problem for the council is that when the policy and intent of open meetings laws is implemented it forbids the discussion of public policy without the public being fully informed.

And their solution is to consider every part of public policy a potential lawsuit.

The word legal comes from the word law. And so every “law” has a “legal” component by definition. And that’s exactly what the council has used as their premise in these matters since early this decade.

So does that mean that everything the Council does is covered by the exemption 92(a)4 which reads

A board may hold a meeting closed to the public... (t)o consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities;

Do the councilmembers think that discussing their “powers, duties, privileges, immunities, and liabilities” with an attorney is the same as actually exercising them?

Apparently so.

The question is if the Council decides state laws don’t apply to them and no one takes them to court does the public outcry make a sound?

Apparently not.

1 comment:

Anonymous said...

the outcry is deafening.....