The Hawai‘i Sunshine Law declares that it is the policy of the state that the formation and conduct of public policy — the discussions, deliberations, decisions and action of governmental agencies — shall be conducted as openly as possible. On
The Hawai‘i Sunshine Law declares that it is the policy of the state that the formation and conduct of public policy — the discussions, deliberations, decisions and action of governmental agencies — shall be conducted as openly as possible.
On Kaua‘i, however, the reverse seems to be true. The prevailing practice of our rogue county is to use secret executive meetings of the County Council and of the county’s boards and commissions to conduct discussions of policy and to make decisions about actions to be taken in many cases where openness should occur.
Our Sunshine Law, with its open government concepts, has been in effect for many years. However, the present deviation of Kaua‘i from it was largely initiated in 2002 with the advent of Lani Nakazawa as County Attorney and Kaipo Asing as County Council chair.
Ms. Nakazawa determined to darken public access to governmental processes by decreeing that communications from her office to county offices and agencies were to be treated as subject to attorney client privilege and not to be disclosed by persons and bodies receiving them except by following procedures that were never identified.
Although disclosure of opinions elsewhere is customary, in recent years only one opinion from the Kaua‘i county attorney office has been made public.
The Sunshine Law contains certain exceptions allowing secret meetings to be held for specified purposes, and a focus was given to one which approved clandestine meetings “to consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities and liabilities.”
Even though at the time Kaua‘i had a charter provision which required that County Council meetings be open except for consideration of claims, it appears Ms. Nakazawa persuaded the council to ignore it. Having eliminated the only real barrier to closed council meetings, it was then observable that, subject to having an attorney present at executive sessions, the council could discuss virtually anything they wanted to and claim that they were consulting the attorney on matters relating to their powers, duties, privileges immunities or liabilities.
The Kaua‘i County Council has never been particularly comfortable with its role as a deliberative assembly with its members preferring behind-the-scenes steering of issues and the collegiality of reaching unanimous decisions, and the new freedom espoused by Ms. Nakazawa was inviting.
For the new council chair, the practices and interpretations initiated by Ms. Nakazawa were made to order. Having the ability to channel discussions of topics of controversial nature into closed sessions fit Mr. Asing’s plans. Since his accession to the council chair, the frequency of executive meetings of the council have almost trebled the rate of such meetings before he became its chair.
The other council members also seemed amenable to the latitude of executive meeting avoiding public scrutiny. Even members who professed publicly belief in the principles of the Sunshine Law were staunch supporters of the legality and propriety of the executive session milieu.
Apart from a few militant citizens who challenged the soaring use of executive meetings by the council, the general public didn’t seem to care. In 2008 the voters, aided by a deceptive statement of its rationale, approved comfortably a charter amendment which relieved the council of the threat of having to limit executive meetings to those on the subject of claims, even though the council had already flagrantly disregarded it.
Moving in lockstep with the practices of the council, county boards and commissions took advantage of the rulings and advice emanating from the county attorney’s office and increasingly availed themselves of the secrecy present in executive meetings. And they did not need to worry about the nagging requirement limiting subjects to claims that the council had at least to notice although not to conform to.
The State Office of Information Practices was established to administer compliance with the Sunshine Law and the Uniform Information Practices Act. Its determinations of interpretation of these laws are supposed to be definitive, but when the council did not like an OIP opinion on its practices in one executive meeting in 2005 investigating the termination of former Police Chief Lum, the Council initiated a lawsuit to negate it.
(Encouragingly the State Supreme Court has recently granted certiorari in this case to hear on August 10 an appeal of lower court decisions favoring the county.)
This year, the OIP acting on a complaint about a closed council meeting that did not even assert that it was an executive meeting sought information from the council, but their request which is supposed to be answered within ten days has been ignored.
The Sunshine Law specifies that executive meetings may only be held upon an affirmative recorded vote of two-thirds of the members present. And the reason for holding the session must be stated. Our council sometimes goes into executive meetings without a vote although mysteriously the minutes correct this deficiency.
Recently the council has held two executive meetings ostensibly for the purpose of consulting with counsel about the amendments made to the charter in November 2008. It is generally believed that these meeting were, in fact, to consider the role of the council to either implement or to challenge the amendment to require council action on permitting accommodations for visitors.
The matter is of considerable interest having been passed convincingly by the voters and discussion about it should clearly be held in the public view, but our council is evidently disinterested in informing us about their analysis.
Other illustrations could be offered, but apparently the citizens of Kaua‘i are content with the reckless way its council and other agencies treat their obligation to conform to the policy of the State to open up the governmental processes to public scrutiny and participation.
Unless and until there is a public outrage about the disregard of openness by our government, it will certainly continue.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
