Friday, December 19, 2008


RED-HANDED: The Kaua`i County Council’s penchant for treating the state Sunshine Law like toilet paper is just a fact of life in this separate kingdom where patriarchy has replaced open governance, deliberations and decision-making.

Though violations of the state’s open meeting “Sunshine” laws are apparent when one watches council meetings, evidence of this criminal activity has been scant and usually circumstantial.

Until now.

PNN is in receipt of a letter apparently from then County Council Chair (now vice chair) Jay Furfaro addressed to “Members of the County Council” asking for support for a bill that was never formally agendaed and certainly not in an open meeting, in blatant violation of the law.

Though we have heard about proposed bills being improperly “circulated” for many years we’ve never had the goods before.

The bill is the one we discussed Tuesday after Joan Conrow discovered it at Realtor Ronnie Margolis’ blog and the letter is the one that Margolis referred to and published a portion of in a recent post regarding setting up “non-enforcement agreements” for people who have vacation rentals on agricultural land in clear violation of state law HRS 205.

While PNN is unable to confirm that the letter was actually sent or received, if indeed it was it could lead to criminal penalties including jail time for Furfaro.

Just circulating communications that are likely to be discussed or introduced before they are actually on the agenda is forbidden but even more troubling in the letter is the actual solicitation for support of the measure which is doubly prohibited.

The letter- reproduced in full below and on official council stationary says in part

I am recommending consideration of the attached bill prepared by former Planning Committee Chair, JoAnn Yukimura, to address the issue of vacation rentals of agricultural lands.. Your favorable consideration in referring this bill to the Planning Commission is appreciated.

Bills regarding planning issues must go through the planning commission according to the county charter after being directed there by a vote of the council.

The letter contains not just a full description of the bill lifted from the “purpose and finding” section but purportedly an attachment containing the proposed bill itself.

The Sunshine law HRS 92 in says in section §92-1

(T)he 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.

And while there are “permitted interactions of members” in §92-2 none allow the communication of matters not on a meeting agenda and discussed openly in an open meeting especially those likely to be on a future agenda.

§ 92-2.5 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 and the two members do not constitute a quorum of their board.

but that is certainly not the case here

The section does list some permitted interactions of two or more but less than a quorum such as investigations and other specific matter but nowhere does it allow this kind if communication.

The prohibition on communications outside of open, duly agendaed meetings is clear. In order for any communication behind closed doors to take place it must conform to §92-4 and §92-5 (a) where there is a specific list of eight types of matters that can be considered in “executive session”.

But even those must appear on an agenda duly filed six days before a meeting

92-5 (b) says that that:

(b) 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). 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.

The Furfaro letter certainly doesn’t fit any of the exceptions to the open meetings laws and prohibitions against circumventing the law which also has been interpreted by Office of Information Practices (OIP) to forbid serial one on one communications to avoid compliance in opinion 05-15

The OIP has opined on the matter many times, most recently and clearly in Opinion Letter 4-01 dated January 13, 2004 on Board Members “Discussion of Official Business Outside of a Duly Noticed Meeting” where the summary letter states

The OIP opined that the general rule is that discussion among board members concerning matters over which the board has supervision, control, jurisdiction or advisory power and that are before or are reasonably expected to come before the board outside of a duly noticed meeting violates the Sunshine Law.

PNN received the letter through a reliable source who asked not to be identified. They told us the letter was forward by Margolis as the one he referred to and partially reproduced in his blog.

PNN is forwarding the case to the OIP for investigation as to whether the letter is genuine, was sent and received by councilmembers and to obtain a ruling in the case.

It is illegal to intentionally forge or alter official government documents.


And for the “only on Kaua`i” note of the week we turn to Hank Soboleski’s always excellent and informative Island History column in the local paper

Nepotism, cronyism and the resulting conflict-riddled revolving-door nature of modern Kaua`i government has provided more material than we can handle at PNN. But it appears it’s practitioners have nothing on the way it was done almost 60 years ago.

Soboleski’s piece today describes the 1940 opening of the first radio station on Kaua`i the fabled KTOH and the on air festivities that night.

After describing the much of the program Hank lists the “Guest speakers”

And there, halfway down the list, are the following:

County Treasurer K.C. Ahana
County Auditor K.M. Ahana


JAY FURFARO, CHAIR Council Services Division
MEL RAPOZO, VICE CHAIR Elections Division
RONALD D. KOUCHI Telephone: (808) 241-6371
LĪHU‘E, KAUA‘I, HAWAI‘I 96766-1371
E-mail: cokcouncil@kauai.govJOANN A. YUKIMURA Facsimile: (808) 241-6349

November 28, 2008

Members of the County Council
4396 Rice Street, Room 206
Līhu‘e, HI 96766

Dear Members of the County Council:

As you know, in the last nine months since Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008, the financial system of our country has been thrown into major upheaval, with far reaching consequences for our hard-hit visitor industry in Hawai`i. In a recent briefing of the County Council, Kaua`i Visitor Bureau Executive Director Sue Kanoho said that the Kaua`i Visitors Bureau and the Hawai`i Tourism Authority are now focusing on visitors who CAN come to Kaua`i, as opposed to those who WANT to come.

To address this situation, I am recommending consideration of the attached bill prepared by former Planning Committee Chair, JoAnn Yukimura, to address the issue of vacation rentals of agricultural lands. It re-instates a provision proposed while Ordinance No. 864 was becoming law. It would allow enforcement agreements that would allow vacation rentals on agricultural land to continue to operate where it can be proved that they were in existence and legal operation prior to enactment of Ordinance No. 864 except for State requirements for farm dwellings. This grace period would be allowed only until the County’s agricultural land planning process and related regulations are completed and implemented, or the owner secured a special permit under Section 205-6 of Hawai‘i Revised Statutes (the latter is a new addition to the proposal considering during passage of Ordinance No. 864.).

The subject vacation rentals would accommodate the visitors who CAN come to Kaua`i. They provide support small businesses and provide jobs. On the other hand, they would be limited to those single family transient vacation rentals which were operating prior to enactment of Ordinance No. 864 (it is imperative that the Planning Department strictly administer and enforce this requirement) and would not be allowed if determined to be on agricultural land after our agricultural land planning process unless they, through a public hearing process and meeting the requirements, secured a special permit under State law.

Your favorable consideration in referring this bill to the Planning Commission is appreciated.


Jay Furfaro


tommycall said...

This is a letter I sent to the council after hearing of this proposed change. As of yet I have not received a reply.

My wife and I live in Anahola, we have a home that is suited for a vacation rental, both of us are nearing retirement and we had planned on turning part of our home in to a vacation rental to help us get by. Everyone around us have been doing this we could of started nearly ten years ago, however we are law abiding and were aware that our home was on Ag land and therefore illegal.
When the bill was in process I wrote to you and received a reply from council woman Shaylene Iseri-Carvalho acknowledging my adherence to the law and stating frankly the Ag land was illegal and anyone who is doing it is breaking the law.
I followed the bill as it worked its way and was aware the bill would require those who were in the designated resort areas to apply for a permit by a certain date and prove they were in business and paying the hotel and GE taxes for a determined amount of time. I was concerned that the bill might allow Ag land to be included and because I have been Law abiding I would not have met the requirements stated in the bill. We could of made our selves eligible by breaking the law. The bill was passed and it stipulated that no permits would be issued to any one who were on Ag land. I believed it was a fair bill.
But now according to councilman Furfaro he unwittingly but in fact will reward those who disregarded the law and punish those who abided.
Yes these are hard economic times and yes many people would be relieved of quite a bit of the burden if they were allowed to rent their homes. But it is bad government to to change the rules like this without fairness. I don't know what my rights are as tax paying citizen but I know what is right and wrong. Its wrong to allow people who have been operating on Ag land a permit without opening up the opportunity for people like my self to also legally apply.
Most of the houses on Ag land have continued to operate with no threat of enforcement . The vast majority are not mom and pop like our selves, most of the houses are purely business the owners don't even live in Hawaii they and are booked solid.

Please advise me of any remedy regarding such a change? Would I or should I bring some sort of suit under a fairness clause?
I thank you and I appreciate your service to our wonder kauai. Tom McCall

Andy Parx said...

Feel free to contact me Tom at gotwindmills (at)