a better kaua‘i – County closes doors often

The opening provision of the State Sunshine Law is a declaration of policy which states, “In a democracy, the people are vested with the ultimate decision making power. Government agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny is the only viable and reasonable method of protecting the public’s interest. …”

On Kaua‘i, county agencies, including the Kauai County Council, do not seem to accept the basic premise of this policy. The council has convened over 300 secret executive meetings in the past five years or more than one a week. The Kauai Board of Ethics appears to believe that all of its proceedings should occur behind closed doors.

While there is certainly justification for the council and other agencies to meet secretly on certain matters, particularly as to the basis for and the settlement of monetary claims involving the county, there are serious questions about whether many of the executive meetings are justified.

Over the past few months a member of the public has made inquiries at council meetings about the propriety of a good number of the executive meetings that have been held. His concerns are based on two provisions of law he cited that are relevant.

Section 3.07E of the Kauai County Charter states in part, “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.” The message of this provision is quite clear. Although county laws are superseded by inconsistent terms of state or federal law, the State Sunshine Law (Section 92-71) declares “in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise more stringent provisions relating to mandating the openness of meetings, the more stringent provisions of said charter, ordinance or otherwise shall prevail.” There seems little doubt that the quoted section 92-71 when read together with the Kauai Charter section 3.07E contemplates that the terms of the Kauai Charter should regulate the scope of executive meetings that could lawfully be convened on Kaua‘i under the Sunshine Law.

The attitude of the County Council and its chair when confronted with these contentions is disturbing. Although violations of the Charter are punishable by fines and imprisonment, the response of the council chair has been to declare that the stated concerns were erroneous without support for this conclusion and to rely on the fact that the agendas written for council meetings presumably with county attorney approval recite that the executive meetings are being held pursuant to law.

The council chair also asserted at one meeting that executive meetings were being held at the request of county lawyers. His remark was categorically wrong. Executive meetings are held, in most instances, so that the council can consult with its lawyers. The attorneys are not seeking the meetings.

One member of the council said that he would get an answer to the points being raised by public testimony, but when after a period of time had elapsed he was questioned, his comment was that he had been given information but it was subject to the attorney-client privilege and could not be released. Apparently he does not believe in the principles of the Sunshine law policy, because although he is free to waive the privilege he has not chosen to do so. It also may be possible that the response was so flimsy he was too embarrassed to state it.

Those who have limited interest in the proceedings of our county government would be tempted to consider these differences of modest importance. But they are part and parcel of an underlying disposition on the part of our council and other governmental bodies to prefer discussing the business they conduct in private and away from public view. This is precisely what the Sunshine Law was designed to prevent. There is little doubt but that the public interests are better protected when citizens have access not only to the determinations made by government but also the reasons for the decisions and the positions taken by the individual officials involved.

The council surely recognizes that the mechanical repetition of a code section is not a meaningful response to an inquiry to why the two sections quoted are not applicable. Its failure to offer any reasoned statement or to require that county lawyers speak on why the cited provisions of law should not be determinative is fundamentally wrong. Public service integrity mandates that when a citizen asks a responsible question about a course of conduct a thoughtful response is deserved. The refusal by the council to provide one seems illustrative of a temperament by our elected and appointed officials to disregard a requirement that inconveniences their preferred style and to lose sight of their obligation to serve in the public interest in accordance with the laws that govern our society. The quality of governance we should have in our county will not occur if officials are willing to close their eyes to the legal and moral standards that apply to their duties.

• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island. This column was originally scheduled to run Dec. 1. A Better Kaua‘i will return to its regular spot Dec. 15.


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