Thursday, June 11, 2009


DARKNESS, DARKNESS: To no one’s surprise the matter of amending council rules to force Chair Kaipo Asing to allow all councilmembers to place matters on the agenda is not on this week’s council agenda, filed yesterday for a rare Tuesday meeting next week.

The complete “packet” containing all the paperwork for the agendaed communications, bills, claims, legal matters, public hearings, executive sessions and committee reports for the meeting are set to be posted by Councilperson Tim Bynum on Friday at his and Councilperson Lani Kawahara’s web site where a new essay on their efforts appears on the main page today.

The piece details three goals:
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.

Bynum and Kawahara are set to appear on community radio KKCR-FM this afternoon at 4 p.m. to discuss their efforts.

One matter that may not be clear to many is the “Catch-22” nature of the dilemma that Bynum faced when he tried to place consideration of the rules on the agenda at the June 3 meeting if letters to the editor in today’s local newspaper are any indication.

As a letter by council watchdog Glenn Mickens points out there are only two ways that a matter can be placed on the council’s agenda. One is to get it “initialed” by the chair and have it duly posted six days before the meeting.

The other is to move to amend the agenda when it is up for approval at the meeting itself.

According to the state sunshine law, nothing maybe added to the posted agenda if it is “of reasonably major importance” and “action thereon by the board will affect a significant number of persons”.

Though it is not clear in the law who is to determine whether those conditions are met. The law is clear that nothing may be discussed unless it is on the agenda. So at the meeting when Chair Asing and County Attorney Al Castillo declared that those conditions were met, in doing so they claimed that it precluded even a discussion of the matter.

This would seem to be a flaw in the law but what is clear is that the Office of Information Practices (OIP) is the entity that is charged with making determinations with regard to the Sunshine law.

At Bynum’s behest they had reviewed the proposed rule change and ruled it was ok to add it on the day of the meeting but even that was ruled by Castillo to be a taboo subject for discussion.

The problem is that it raises the question of how any matter could be ever added to the agenda if even the discussion of whether to add the matter cannot take place, much less a council vote on the matter.

The catch-22 is simply that a matter cannot be placed on the posted agenda without the chair’s “initials” but the chair also apparently can block discussion of an addition on the day of the meeting by claiming the sunshine law forbids discussion of non-agendaed items.

It became even more obvious there are still many who don’t know or understand what happened at the meeting when a letter by Alfred Laureta appeared suggesting that there was a simple solution.

Lauretta wrote:

A councilperson who wants to bring a serious matter to the attention of the council for serious consideration and action has a vehicle available to him/her. This is called a “motion” which, if duly “seconded,” is discussed and voted upon. A motion lacking a second is denied discussion or dies for want of a majority vote.

Parliamentary rules are available also to prevent or shorten discussion which involve matters not of substance or material to the issue and which so often, on televised sessions of the council, becomes political in nature.

I suggest that the Guest Viewpoint authors sponsor motions on the council floor of the next council meeting that will appropriately correct the situation they complain about. Will rule changes involve constitutional, charter, legal considerations? Or simple majority vote?

If they succeed in their motions, it is true that Kaipo is a “dictator.” If not...?

As PNN readers know from our reports of the events of June 3, Bynum did indeed make that motion to place the matter on the agenda and it was seconded by Kawahara.

Since the attempt and motion was made and seconded only to be thwarted in an apparently unlawful manner (council rules require that Robert’s Rules are to be used unless otherwise stated), it would seem that Lauretta, a retired Kaua`i 5th Circuit Court judge and known ally of Asing’s, would agree with the “dictator” tag Asing has earned.

One more thought that came up today when we received an email from someone seeking information on how to go through the required filings to release the minutes of the executive session on June 3.

In Section 92-9(b) the Sunshine Law states that

minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer.

The lawful purpose was purportedly to determine whether the matter could be placed on that meeting’s agenda. Since that meeting is over the lawful purpose can no longer be defeated so the condition no longer exists and the minutes should be made public immediately.

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