Kaua‘i resident Richard Stauber prides himself in being a thorn in the side of members of the Kaua‘i County Council. Although council members would dispute his claims, citing successes and progress, Stauber badgers the county legislators to respond more effectively
Kaua‘i resident Richard Stauber prides himself in being a thorn in the side of members of the Kaua‘i County Council.
Although council members would dispute his claims, citing successes and progress, Stauber badgers the county legislators to respond more effectively to key issues facing Kaua‘i County today. They include development, affordable housing, unpermitted grading, and preserving public access.
Stauber said he won a victory for the common man seeking more government accountability earlier this month when leaders in the state Office of Information Practices rendered an opinion against the council.
OIP officials said one provision of a council-approved resolution that sets up procedures for the council or its investigative committee to investigate county departments was flawed.
Stauber insisted the provision, calling for testimony taken in an investigation be given under oath, was illegal.
After filing a complaint with OIP, agency officials agreed with Stauber’s contentions, saying testimony taken under oath ran contrary to the state sunshine law.
The resolution is based on a Kaua‘i County Charter provision that gives the council investigative powers.
In a March 3 letter to council Chairman Kaipo Asing, OIP attorney Wintehn K.T. Park said the sunshine law requires the council to accept testimony “from all persons,” either orally or in a written text, at its meetings, but not under oath.
“OIP has consistently ruled (in other cases) that placing conditions or restrictions on a person’s ability to present testimony at a hearing is prohibited by the sunshine law,” Park wrote.
Consistent with past OIP decisions and legislative policies that promote open government, OIP found that “conditioning the opportunity to testify at a hearing upon administration of an oath is inconsistent with and in violation of the sunshine law.”
Asing and Vice Chair James Kunane Tokioka were not immediately available on Friday to comment on the decision.
But a county official, who asked not be identified, said that if that one provision violates the state’s open-meeting law, the council may be forced to amend the resolution.
Park said, however, all other provisions in the resolution appear to be consistent with the intent of the sunshine law.
In a March 3 letter to Stauber, Park said the council would be made aware of Stauber’s complaint and OIP’s study of the matter.
Park noted, however, that it was “premature and overly speculative” to take any further action until “there is an allegation of an actual act being taken in violation of the sunshine law by the council.”
Dr. Ray Chuan, a Hanalei resident and government watchdog, said in letter to Leslie Kondo, an attorney who heads the OIP office in Honolulu, that he felt the entire resolution was in violation of the sunshine law.
Chuan noted a key element of Sec. 3.17 of the county charter is the power to subpoena people to testify under oath to the council or an investigative committee of the council in the probe of county departments.
The section gives authority to the council to investigate county departments.
Chuan said a reading of the letters from Park to Asing and Stauber, language in the resolution and a reading of the charter section “would seem to this untrained observer to mean that the entire resolution is not in conformance with the sunshine law, since it (the resolution) claims to derive its powers from Sec. 3.17.”
Related to any corrective action that could be taken against the council for violation of the state law, Kondo noted that OIP has no enforcement powers. However, complaints over alleged violations of the sunshine law against any council members can be filed with the county Office of the Prosecuting Attorney or with the state Office of the Attorney General, Kondo said.
When asked if the council had committed any violations of the law, Kondo said: “Very recently, we have had a large number of issues that have been raised about the Kaua‘i County Council. “(But) It doesn’t mean that they are doing it wrong. It is just (that) somebody (Stauber) is complaining.”
The resolution arose from a study by council members of a county-charter provision that authorizes the council or any council committee to conduct investigations of any county department.
Section 3.17 of the charter allows a presiding officer to administer oaths and, in the name of the council, subpoena witnesses and compel the production of books and records as evidence for any investigation by the council or its committee.
The resolution, which was approved earlier this year, notes that the investigating committee will either be the full council or the council Committee of the Whole.
The resolution also notes that the chair and the vice chair of the council’s Committee of the Whole will be the presiding officer and vice-presiding officer, respectively, for the council’s investigate committee.
Currently, council Chair Asing and council Vice Chair Tokioka sit as the chair and vice-chair, respectively, of the council’s Committee of the Whole. All the hearings will be opened to the public, unless two-thirds of the full council or the council Committee of the Whole determine the hearing should be closed to the public.
Lester Chang, staff writer, may be reached at 245-3681 (ext. 225) or lchang@pulitzer.net.
