A BETTER KAUA‘I: Questions need to be answered

The Ohana Kauai charter amendment to limit resident owners’ property taxes was a very disquieting experience for Kauai County officials. For the Council members, it was troublesome to observe their monopoly on creating County legislation assaulted and to have this attack occur in the sacrosanct arena of taxation was almost unbearable. So the County resorted to a lawsuit to try to obtain a judicial decision eliminating the intrusive measure.

After having already spent $235,000 of taxpayer funds in pursuit of their objective, on June 20 the Council proposed convening an executive session to consider a further $25,000 to fund the services of the County’s attorneys, the Goodsill law firm. The paranoia affecting the Council members was reflected in the interchange at that meeting.

A citizen addressed the council and asked three very germane questions. As the lawsuit was initiated by the County as plaintiff and named the mayor and the County Council as defendants and the Goodsill firm represented the County, the first question asked why the County Council was seeking to further fund a law firm suing the Council.

The second question inquired in light of the fact that the lawsuit had been fully briefed and argued and all that remained was the Supreme Court’s decision, why additional moneys were needed by the County’s counsel.

The final question wondered how the Council could justify the executive session it was seeking on the matter of approving the funding.

The Council was claiming that it was removing the session from public view under an exception to the Sunshine law allowing privileged consultation with the Council’s lawyers. The problem was that the Council would be seeking information from lawyers for the plaintiff County who did not represent the Council and such consultation would not be privileged.

One Council member tried to respond to these questions (I won’t use names but those involved will know who they are). The member offered a non-responsive comment that the litigation was necessary because a Council member is sworn to uphold the law and in order to know whether a law is valid ”we have to go to the courts.” This lofty sentiment is used very selectively. Although the Council has adopted many ordinances of dubious validity, never before had the County initiated such a lawsuit to get an expression from the Hawai‘i Supreme Court.

One of the recently adopted ordinances is the big box law. Courts have held similar legislation limiting size of commercial facilities and impacting competition to be invalid. Rest assured the Council will not seek a court review of that law because they voted for it. So much for oaths to uphold the law. The member then expressed ignorance about the need for further moneys and said that the Council was using an exception provided by the Sunshine Law authorizing an executive session to consult with counsel. The points that the law firm being funded was not representing the Council and that a consultation with counsel other than the Council’s own would not be privileged were never addressed.

Another councilmember said that using an executive session was justified because the Ohana lawsuit remained “an active case.” Neither the state Sunshine Law or the County Charter allow executive sessions because a matter is “an active case” although the cessation of active status may justify the release of the minutes of an executive session. The statutory basis for the executive session claimed was to consult with counsel on the powers, duties, privileges and immunities of the council. As noted, that claim is dubious.

A third member of the council stated that although his service on the council was limited, he had heard citizen complaints about the extensive use of executive sessions, but he had never felt that an executive session during the tenure of his service had been inappropriate. As the credibility of this member’s comment could only be measured if the minutes of the executive sessions involved were made public it was not a meaningful utterance.

When the Council came out of its executive session, members abruptly approved the funding but offered no statement as to the reasons for such approval.

The Sunshine law says that government should be conducted as openly as possible. The Council is not in harmony with this provision. The question should be publicly answered as to why further funds are needed about a case where the only remaining action is to be by the Supreme Court in reversing the Circuit Court opinion favoring the County or in dismissing the appeal made by Ohana supporters.

This point is particularly compelling because of the very substantial amounts already incurred. The invoking of an executive session on this matter seems both of dubious legal justification and in derogation of the Council’s duties to provide to the public information about Council expenditures.

The quest for a better government on our island is never easy.

• Walter Lewis is a Princeville resident and a regular contributor to the Forum.

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