Board takes executive session complaint behind closed doors

The seven-member county Ethics Board debated executive session privileges and responsibilities yesterday at the Mo‘ikeha Building Liquor Conference Room.

Although much of the board’s regular monthly meeting was conducted behind closed doors, residents had a chance during the public portion to air their concerns.

Ethics Board Vice Chair Mark Hubbard prompted the lively discussion with his request to have all agenda items be placed in open session and require a board vote for an agenda item to be moved into executive session.

Historically, Ethics Board Chair Leila Fuller said, the process has been the opposite — potentially sensitive or confidential matters have been placed on the agenda as executive session items pursuant to the state Sunshine Law with the understanding that the board could move an item into open session if warranted.

The chair, county attorney and secretary set the agenda prior to the meeting so the public can be provided the legally required advance notice.

“If things are disclosed in open session, it’s difficult to take it back,” Fuller said, defending current executive session practices as an “important part of the process.”

“There’s very little that’s confidential,” Hubbard said, referring to the previous executive session discussions he has experienced.

Performing in open session the preliminary review of a complaint or communication before the board, Fuller said, invites the risk of inadvertently leaking sensitive information.

By keeping it closed at start, she added, the board can motion to return to open session if no confidential information is found to justify staying in executive session.

Ethics Board member Kurt Akamine summed up Hubbard’s concern by asking what happens to items slated to be discussed behind closed doors if the board does not approve a motion to enter into executive session.

Hubbard said his understanding is that those items can not then be discussed in open session according to the current process.

Fuller pointed out that the board approves the agenda at the start of the meeting and can amend it at such time.

Akamine underscored the board’s responsibility to protect confidential information while balancing public access.

If not, he said, people may become apprehensive about sharing information for fear of being exposed.

Hubbard said he feels forced to go into an executive session over agenda items which he had no say over.

The board met the matter first-hand later in the morning meeting.

Lihu‘e resident Ed Coll told the board he wanted to waive his confidentiality protection so that two executive session items for which he was the complainant could be discussed publicly.

One item, he said outside the meeting, involves a complaint he filed against County Council members for entering into executive sessions to discuss matters he believes must remain in open session.

There should be no reason for the board to enter into executive session to protect the council members’ confidentiality, Coll said, because their votes to take an agenda item behind closed doors are public record.

He said he is not concerned with what is being discussed in council’s executive sessions as much as the correct process is being followed.

“I’m complaining about official acts already in public record,” he said outside the meeting. “What confidentiality would they have? I just want to know if they’re doing what they’re supposed to be doing.”

Coll and residents Glenn Mickens and Ken Taylor asked the board to opine if council was violating the county charter by calling its executive sessions pursuant to the state Sunshine Law, which lists a variety of reasons government can take discussion of certain agenda items behind closed doors.

The three residents claim the county charter supersedes the state law, limiting the reasons to go into executive session.

They base this on Hawai‘i Revised Statute 92-71, which states: “… in the event that any political subdivision of the state shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply.”

If the county charter indeed supersedes the state law as they assert, the three residents say the council must limit its executive sessions to matters relating to claims against the county.

They base this on county charter section 3.07E, which says, “With the exception of deliberations relating to confirmation of appointees, or consultations with the county attorney on claims, all council and council committee meetings shall be open to the public.”

For the past four months, Mickens has hammered the council for entering into executive sessions for reasons other than discussion of claims against the county.

The county has generally responded to his concerns by citing attorney-client privilege and referring to state statutes enabling the decision to move into executive session.

“We just want a directive from the Ethics Board if this is true,” Mickens said, referring to his belief that the county charter supersedes state law.

The board, which as such would not fall under the argument that the county charter supersedes the Sunshine Law, decided to stick to the agenda and enter into an executive session to discuss Coll’s claims.

After returning from executive session, the board ratified the actions it took behind closed doors.

The board said it was unable to determine if there was a violation or not pursuant to Coll’s complaint against county officials, and decided to not pursue further investigation.

In another executive session item, the board denied Coll’s request for the board to reconsider its previous decision on the need for possible disciplinary action against an officer or county employee.

County Deputy Attorney Margaret Sueoka said letters would be sent to Coll responding to his complaint.

The board meets the second Thursday every month at the Mo‘ikeha Building Liquor Conference Room.

• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or


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