Council weighs bill to make some county attorney opinions public

The Kaua‘i County Council on Wednesday broached a “passionate” aspect of government transparency while an unspoken political subtext boiled near the surface.

A proposed ordinance, co-introduced by council members Tim Bynum and JoAnn Yukimura, aims to make legal opinions on questions of law open to the public while continuing to safeguard advice and counsel under attorney-client privilege.

“This is a very important subject,” Council Chair Jay Furfaro said. “We have all struggled with this question.”

The seven-member legislative body in a 4-2 vote deferred Bill 2288 pending county attorney response. Council members Shaylene Iseri-Carvalho and Mel Rapozo opposed the motion. Councilman Ron Kouchi’s absence was excused.

The dissenting duo was OK with deferring the proposed legislation until the next Committee of the Whole meeting, but they objected to the uncertain length of time the item would be delayed by adding the “pending county attorney response” clause.

There is only one committee meeting on the calendar before Dec. 1 when newly elected council members take office. Yukimura, Iseri-Carvalho and Rapozo will not be returning to the council for another two-year term because they sought other elected offices this year. (Iseri-Carvalho ran unopposed for county prosecutor. Yukimura edged out Rapozo in the race for mayor in the Sept. 20 primary.)

When making the motion to delay action on the legislation, Bynum said it was in response to the County Attorney’s Office’s request for deferral so amendments to the bill could be worked out.

The county attorney has written a 15-page legal opinion on the proposed ordinance, but it remains sealed under attorney-client privilege.

Several areas of concern over the bill emerged during the afternoon session at the Historic County Building, including who would be charged with making the distinction between the two forms of legal guidance and how the opinions would be released.

Iseri-Carvalho harped on the fact that the County Attorney’s Office has never issued an opinion to the council solely on a question of law.

But Deputy County Attorney Harrison Kawate said the office has never received a request for an opinion purely on a question of law, so its opinions fall under advice and counsel.

Yukimura tried to solicit an example of an opinion that would be strictly a question of law, but Kawate declined to speculate.

She said a question asking if state law preempts county law, for instance, would seem like a legal opinion that would qualify for public release. But Kawate did not comment on the hypothetical, noting the lack of context and complete set of facts.

Bynum underscored that the proposed ordinance mostly mirrors a state law, Hawai‘i Revised Statutes Sections 28-3 and 28-4, that has gone unchallenged for 40 years.

If the state attorney general can make the distinction between the two types of legal guidance, he said, why wouldn’t the county attorney be able to do so?

The Department of the Attorney General publishes its legal opinions on matters of significant statewide importance, such as an opinion in August on random drug testing of teachers.

The attorney general decides when the threshold is reached to waive confidentiality, a department official said. Only a few opinions are made public annually, according to the department’s Web site.

Bynum also pointed at Maui County’s Department of Corporation Counsel, which routinely publishes legal opinions on its Web site. It has posted nine so far this year, ranging from curfew exceptions to tax credits.

Maui has no ordinance requiring the release of certain legal opinions, Department of Corporation Counsel Brian Moto said yesterday. He said the office’s approach to writing an opinion is key in its ability to make the vast majority open to the public.

“We in the Corporation Counsel office have learned that generally speaking we often, when asked to give advice, do so with the assumption that whatever we say or write may end up in the local newspaper,” he said. “We have also determined that by and large our clients within the county government, as well as people outside of county government, are often helped when people are able to have that advice … and are able to read how an opinion was reached. We also have found that in general people find these kinds of opinions useful for research and when they want to evaluate their own situation.”

In many cases, Moto said, the department has determined that confidentiality is not necessary.

“To be sure, there are certain occasions and certain matters that must be dealt with more delicately,” he said, noting personnel issues or matters in litigation as examples. “It is not always easy to make that call. … On the whole, however, the great majority of the advice that we have to give or are called upon to give really does not relate to matters that are confidential.”

It has therefore become the department’s practice to publish its legal opinions online, Moto said.

HRS Chapter 92F, the Uniform Information Practices Act, provides the impetus to disclose as many government documents as possible, he said. The law, which he described as the state’s version of the federal Freedom of Information Act, says people have the right to inspect government records except in certain circumstances.

“It’s a process that seems to work here,” Moto said.

When asked who would make the determination under the bill on what opinions should be made public, Kawate said the County Attorney’s Office has not had an opportunity to fully look into it. He said he was unable to respond at this time, citing the need for further review and research.

The proposed ordinance is unclear on who makes this distinction, Iseri-Carvalho said.

Councilman Ron Kouchi, who chairs the Committee of the Whole, said he could understand that the County Attorney’s Office would not be “comfortable” determining what should be released.

“How do we get there?” he said.

Furfaro confirmed with the county attorney that the council, as the client, could approve a policy to determine the release of legal opinions. But it became clear that council members had different views on a rule to waive confidentiality.

Rapozo, for instance, said he would support nothing less than a unanimous vote be required for an opinion’s release while others said a supermajority, five votes, seemed sufficient.

Further questions then sprang from this discussion, including whether the council, as a body, was the client or if individual members could lay claim to the opinions they sought.

Although requests for legal opinions, even those from individual members, come to the County Attorney’s Office with the council chair’s signature and are received as from the body, Kawate said he understands the council has not always disseminated opinions among its members.

At one point in the meeting, political wrangling between Iseri-Carvalho and Bynum forced Furfaro to restore order. Iseri-Carvalho was attempting to introduce an amendment to the bill as Bynum motioned for a deferral.

“This is a passionate item,” Furfaro said. “I am never happy when I have to knock on the gavel.”

Iseri-Carvalho’s amendment, which she said stems from public input on the bill, was circulated but no action was taken on it.

The amendment proposes requiring the county attorney to file an “accurate and comprehensive statement” of advice and counsel related to proposed legislation, policies or resolutions and any ensuing discussion with the county clerk within 30 days of the date that such advice and counsel was provided. It would also require making such statements available for public inspection.

Iseri-Carvalho said if the county wants to become transparent, it should not pick and choose what issues to make public.

The council unanimously passed Bill 2288 at its first reading on Sept. 24. From there, the proposed legislation was aired in a public hearing and then routed to committee. Before the proposed ordinance can become law, the committee must pass it back out to the council floor for final approval.

Furaro in June initiated a discussion on the council floor regarding a policy for the public release of future county attorney opinions provided to the council as a body. County officials indicated yesterday that this item was scheduled to reappear Thursday on the council agenda, but the agenda had not been posted at press time.

For more information, visit www.kauai.gov

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