Tuesday, November 9, 2010


WHEN I AWOKE DEAR, I WAS MISTAKEN: And while we’re on the subject of leadership and the way our county council views the Sunshine law, we mentioned in passing recently that a good indication of how seriously they take HRS 92 will be whether they conduct their organizational meeting(s) publicly.

But the fact of the matter is that, according to the Office of Information Practices (OIP) a “a loophole in the Sunshine Law allows such an assemblage, which would be prohibited after councilmembers officially take office”.

And as a matter of fact, according to an article in the Hawai`i Tribune Herald:

In an organizational meeting held Sunday at Hamakua Councilman Dominic Yagong's Honokaa home, Yagong was elected chairman and Kohala Councilman Pete Hoffmann vice chairman, Yagong confirmed. In addition to Yagong and Hoffmann, the meeting included South Kona Councilwoman Brenda Ford and councilors-elect Angel Pilago of North Kona, Fred Blas of Pahoa and Brittany Smart of Ka'u.

Not invited to the meeting were current Chairman J Yoshimoto and Councilmen Dennis "Fresh" Onishi and Donald Ikeda, all of Hilo.

The matter goes back to an OIP opinion from 2002 that says that although the loophole exists:

the OIP strongly recommends that a quorum of members-elect of a board not assemble prior to officially taking office to discuss selection of board officers, in keeping with the spirit of the Sunshine Law.

That’s all because of the lag time between election and swearing in during which the council elect isn’t technically subject to the sunshine law.

The OIP opinion quotes the law as saying

"[d]iscussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board's officers may be conducted in private without limitation or subsequent reporting."

Thus, less than a quorum of a board may meet privately and without limitation or subsequent reporting to discuss selection of board officers, regardless of whether or not board members have officially taken office. Whether board members have officially taken office is irrelevant, so long as the meeting is restricted to less than the number of members that would constitute a quorum.

It is not illegal for a quorum of newly elected members of a council to meet to discuss selection of officers prior to commencement of their terms of office.

But the situation applies to members of the council-elect who are still technically members of the “existing” council at the time of the meeting.

That’s why the Big Island’s meeting was able to stay within the “spirit” of the law by inviting less than a quorum of current members (three of nine) and add three “new” members-elect.

As the Tribune Herald explained:

Hawaii's Sunshine Law allows secret meetings to select officers, but participation is limited to less than a quorum -- in this case, four members or fewer. The law doesn't apply to incoming councilors whose terms haven't started.

That means that, with three “new” members, Nadine Nakamura, Mel Rapozo and JoAnn Yukimura, any two members- who according to the sunshine law can meet to deliberate toward a decision as long as no actual commitment to vote is offered or made- can organize with the three newbies, leaving the other two returning members in the dust.

On Kaua`i, staying within the spirit of the law has been spotty with organizational meetings announced- if not officially agendaed- and held before the public.

But all those meetings were under the presumed returning chairmanship of the departing Kaipo Asing- despite a challenge in ’08 by council Vice Chair Jay Furfaro- so anything is possible, especially since there is no single figure authoritative enough to really “call” for a meeting.

We’ll see how the council acts when they are asked by the OIP to stay within the “spirit of the sunshine law” when they are not required to.

But with past not necessarily being prologue this year if you want to know what deals are being cut to determine the council chair and committee chairs and assignments- as well as what the new committees may be- you just might want to stake out the Barbeque Inn.

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