Monday, October 13, 2008



It’s practically been the motto the Kaua`i County Council and past two administrations. And if one proposed County Charter amendment passes it might well be engraved on the county seal.

But you’d never know it from reading the wording of a question that will appear on the ballot November 4.

The change seeks to eliminate a provision in the Kaua`i Charter that makes it harder for the Kaua`i Council to go into secret “executive session” meetings than the state Sunshine Law.

But the actual question that will appear on the ballot makes it sound like it is a provision to stop council secrecy and enforce the state Sunshine Law regarding open meetings- something the council has infamously fought tooth and nail for a decade and more

The question asks

Should the Kauai County Charter be amended to conform to state law requiring that all meetings of the County Council be open to the public unless allowed to be closed under the State Sunshine, Law Hawaii Revised Statues (HRS) 92
Anyone who is dismayed by the council’s well known penchant for secrecy would upon reading that vote “yes” thinking “finally all this secrecy will end- they will have to comply with the Sunshine law”

But not so fast- a careful read will reveal the words are "conform to” not “comply with”. And although most people would interpret the two to mean essentially the same thing under most circumstances it’s not true here.

The Sunshine Law actually calls for all meeting of boards and commissions in Hawai`i to be open to the public unless they are closed for one of eight specific reasons 92-5(a)1-8.

And while it’s true the change would cause the Charter to “conform to state law” it would do so by removing a Charter provision, 3.07e that would keep more meetings open- all those that are not “consultations with the county attorney on claims”.

Laws and rules of a higher “level” of government in America take precedence over laws a lower subdivision of government unless otherwise specifically stated in the “higher” law.

They are said to “trump” the lower jurisdiction’s laws. State laws cannot violate federal laws or the Constitution. And a county’s laws cannot violate a state law.... unless there’s a specific provision in the controlling authority’s law that gives the lower one that power.

And that’s exactly what state law HRS 92-71 does for the Sunshine Law. It allows counties to have “more stringent” provisions than those in 92-5(a)1-8.

But the council has spent the last year and a half stonewalling enforcement of the charter law claiming to have another of those secret county attorney’s opinions- as we reported upon earlier- that allows them ignore the Charter and go into secret “executive session” (ES) when they need to even if there’s no way the subject matter can be said to be “on claims”.

A year and a half ago Attorney Walter Lewis was reading through HRS Chapter 92, “Part I” of which constituted the “Sunshine “Law”. But 92 goes to other parts after 92.1-13 although they aren’t listed at the Sunshine Law page at the web site of the state Office of Information Practices (OIP) a state office set up to opine upon the Sunshine Law.

There he found HRS 92-71 which says the following

Political subdivision of the State; applicability. The provisions contained in this chapter shall apply to all political subdivisions of the State. Provided, however, in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply.

Last August Lewis told Kaua`i government watchdog and “nitpicker” Glenn Mickens about what’s been called the “secret Sunshine Law” even though the provision isn’t actually part of the “Open Meetings provisions”- the real name for what is commonly called the Sunshine Law although the term is never used in the actual law- which is limited to Part 1 of HRS 92.

Almost every week for a year Mickens has testified on any ES’s on the agenda, starting out asking for compliance to what the law apparently says.- no ES’s except for “claims”

But though the law is obvious the council has remained oblivious. Other than adding 3.07e to the ES agendas they did nothing to actually comply with the new provision.

In addition even though the term “claim” has its own section in the Charter defining what a claim is, the council has tried to maintain that “claims” has a broader definition in law dictionaries - while at the same time saying they weren’t bound by it.

But a Hawai`i Supreme Court ruling in 1989, Kam v Noh, makes it plain that when a word is defined in a body of law such as the Charter, that is the definition to be used throughout that body of law, not some extraneous definition.

Finally a letter from OIP clarified the matter somewhat but the Council managed to twist that too.

OIP sent a letter last month saying that 3.07(e) was to be read “in addition” to the eight provisions for closing meetings. It says in part

Section 92-71, HRS, allows the County to provide more stringent meeting standards without being in conflict with the Sunshine Law. Any more stringent county provisions, however, would be in addition to the requirements the Council must comply with under the Sunshine Law. Thus, a county board may only meet in an executive meeting for a purpose authorized under section 92-5 of the Sunshine Law and must always provide notice in compliance with the Sunshine Law.

That means that since OIP has no jurisdiction over 3.07e- or really 92-71 for that matter- they can’t tell the county what to do about it even if it is “more stringent”- something that it had acknowledged in a previous latter last January.

They essentially told the council that no matter what they did about their charter provision, they still had to abide by state law..

For instance if the Council- in it’s usual bizarre way of doing its ES business- decided they wanted to go into ES to investigate the “claim” that Santa Claus and the tooth fairy are real they would still be subject to the provisions in 92-5(a)1-8.

Mickens has sought to get them to say that since the charter provision was more stringent than the charter that the eight reasons were moot for purposes of open meetings on Kaua`i.

But the OIP said no- they still also controlled ES’ presumably for cases like the one cited above.

Rather than interpreting the letter to say that “in addition” meant that the two provisions had to be read together, the council decided that it meant that there were apparently now nine reasons to close meetings- the eight in the Sunshine Law and, “in addition”, the one in the charter- “claims”..

The council has unanimously taken this position with all seven members a one time or another defending their refusal to follow the three laws taken together- HRS 92 Part I (the Sunshine Law) HRS 92-71 (the more stringent provision in state law) and Kaua`i Charter 3.07(e)- as read together.

And the OIP said that, since it involved areas over which it has no jurisdiction, the only other remedy would be to go to 5th Circuit Court to sort it out.

And now the council, through a request to the Charter Commission, is seeking to get out from under the law – a law it says they’re not bound by- by changing it in a dishonest underhanded “trick question” manner.

This has resulted in the attempt to change the Charter through trickery, using a ruse to deceive people into thinking they are actually voting to require the council to follow the Sunshine Law- by “conforming” to it when they are actually trying to weaken the current open meetings law that applies to Kaua`i

An honest question would ask something like

“Should the Charter be amended to remove the provision limiting closed sessions of the county council to those involving “consultations with the county attorney on claims”

The only way to stop this measure from appearing on the ballot with it’s current deceptive language would be to find a pro bono attorney who is willing to try to get a restraining order. But at this late date that may be almost impossible because the harm wouldn’t be irreversible since the case could be adjudicated after the election.

But recent Hawai`i and Kaua`i case law- in the “Ohana” 2% property tax cap charter amendment- shows that if a case regarding a charter amendment is not filed before the election it is a lot harder if not impossible to file after the election if it seeks to invalidate the vote.

So anyone waiting for the results to file a case might find themselves out of luck

As a voter our job is to not fall for it. PNN asks people to vote no on this offensive attempt to further erode the laws against closed meetings and secrecy in Kaua`i government.

And when you’re voting in the council election remember who was responsible for this before voting for any of the five incumbents.

1 comment:

Ed Coll said...

Mahalo Andy, I had a letter published in TGI and posted a similar analysis on my blog on Sept 11. here it is FYI

Thursday, September 11, 2008
Weasel Word Alert
Voters should take a closer look at the weasel worded PROPOSAL NO.2 which will appear on the ballot in the General Election this November.
In The Garden Island 9-11-2008, Kaipo Asing asserts in "Council candidates answers" that he has and will continue to abide by State Sunshine Law (Kaipo Asing, A5, Item 6, Open Government). But is he complying with our County Charter? He may "abide" which means to put up with; tolerate, but he has neither "complied" nor "conformed" with County Charter Section 3.07E.
It has become more than apparent that under his guidance as Council Chair the County Council has continuously violated County Charter ethics item 307E by going into executive session for reasons other than "consultations with the county attorney on claims". The State Office of Information Practices (OIP) has opined that 307E does not violate and is in compliance with State Sunshine law.

The council asserts it has a secret opinion from the county attorney which states that despite repeatedly going into executive session for reasons other than consultations with the county attorney on claims, the council has not violated 307E. The council claims "attorney-client privilege" but downplays their sole right as the client to waive that privilege and has stubbornly refuse to do so for the public good and a more transparent government. Now they want to change a law they are already breaking.

The ballot question PROPOSAL NO. 2: RELATING TO COUNTY COUNCIL EXECUTIVE SESSIONS is deceptively worded. The ballot question states "Should the Kaua'i County Charter be amended to conform to state law requiring that all meetings of the County council be open to the public unless allowed to be closed under the State Sunshine law, Chapter 92, Hawai'i Revised Statutes?"

Here is the proposed deletion: [With the exception of deliberations relating to confirmation of appointees, or consultations with the county attorney on claims, all council and council committee meetings shall be open to the public.]

Pardon my analysis but what is to be deleted is the section 307e of the County Charter that the secret county attorney opinion asserts has not been violated! Why is our county attempting to change the law?

As County Charter Commission Chair Chun is fond of saying "What's the problem is this proposal is attempting to address?" The weasel word in this proposal is "conform" implying that 307e is somehow in violation of State Sunshine Law when in fact 307E is in complete "compliance" with the State Sunshine Law. The weasel is in the difference in the meaning of the words "conformance" versus "compliance". Conformance means an exact word for word match with the laws. Compliance means obeying the law and could provide even greater protections than the law itself. That is what our current charter section 307E provides: greater transparency. Our current charter in fact provides greater transparency than the State Sunshine Law, while being in complete compliance with that law.

The take home message for the voter is that this proposal implies the County of Kauai is somehow not following the state law when in fact 307E provides even greater transparency than the State Sunshine Law requires which is in complete "compliance" with State Sunshine Law.

Why is the County attempting to trick the voter into voting for less transparency in government with this weasel-worded proposal?

If more transparency in government is what you want vote NO on proposed charter amendment number 2.