POSTED: 14 SEPTEMBER 2008 - 6:00pm HST

County Changing the Law

image above: War Room in Stanley Kubrik's film "Doctor Strrangelove". A place of secret meetings.

by Ed Coll on 13 September 2008 in The Garden Island News

Voters should take a closer look at the weasel worded proposal No. 2 which will appear on the ballot in the General Election this November.

In The Garden Island on Sept. 11, County Council candidate Kaipo Asing asserts in “Council candidates answers,” A1, that he has and will continue to abide by State Sunshine Law. But is he complying with our County Charter? He may “abide” which means to put up with; tolerate, but he has neither “complied” nor “conformed” with County Charter Section 3.07E.

It has become more than apparent that under his guidance as council chair the County Council has continuously violated County Charter ethics item 3.07E by going into executive session for reasons other than “consultations with the county attorney on claims.” The state Office of Information Practices (OIP) has opined that 3.07E does not violate and is in compliance with State Sunshine law.

The council asserts it has a secret opinion from the county attorney which states that despite repeatedly going into executive session for reasons other than consultations with the county attorney on claims, the council has not violated 3.07E. The council claims “attorney-client privilege” but downplays their sole right as the client to waive that privilege and has stubbornly refused to do so for the public good and a more transparent government. Now they want to change a law they are already breaking.

The ballot question Proposal No. 2: Relating to County Council Executive Sessions is deceptively worded. The ballot question states “Should the Kaua‘i County Charter be amended to conform to state law requiring that all meetings of the County Council be open to the public unless allowed to be closed under the State Sunshine law, Chapter 92, Hawai‘i Revised Statutes?”

Here is the proposed deletion: 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.
Pardon my analysis but what is to be deleted is the section 3.07E of the County Charter that the secret county attorney opinion asserts has not been violated. Why is our county attempting to change the law?

As County Charter Commission Chair Jonathan Chun is fond of saying “What’s the problem this proposal is attempting to address?” The weasel word in this proposal is “conform” implying that 3.07E is somehow in violation of State Sunshine Law when in fact 3.07E is in complete “compliance” with the State Sunshine Law. The weasel is in the difference in the meaning of the words “conformance” versus “compliance.”

Conformance means an exact word-for-word match with the laws. Compliance means obeying the law and could provide even greater protections than the law itself. That is what our current charter section 3.07E provides: greater transparency. Our current charter in fact provides greater transparency than the State Sunshine Law, while being in complete compliance with that law.

The take home message for the voter is that this proposal implies the county of Kaua‘i is somehow not following the state law when in fact 3.07E provides even greater transparency than the State Sunshine Law requires which is in complete “compliance” with State Sunshine Law.

Why is the county attempting to trick the voter into voting for less transparency in government with this weasel-worded proposal?

If more transparency in government is what you want vote “No” on proposed charter amendment No. 2.




POSTED: 14 SEPTEMBER 2008 - 6:00pm HST

Upholding Kauai County Charter Amendment 3.07 E

by Rolf Bieber on 7 September 2008

3.07E is the backbone of Kauai County's open government provision. It legally provides more stringency (requiring a higher standard of openness) through our Kauai County Charter set forth through Hawaii State Sunshine Law. The County Council recently has only formally recognized 3.07E placing now in its Agenda recognition for Executive Session (i.e. business behind closed doors) after years of non-compliance or public recognition despite public outcry and testimony to the contrary. Finally, we are closer to having council follow the law set forth by our Charter.

The key language for compliance by the County Council is this:

1) State Sunshine Law allows County to provide more stringent meeting standards for Council (HRS 92-71).

2) 3.07E meets more stringent (thus creating a more open council) requirements and is allowed by law.

3) Application of 3.07E: Council may go into Executive Session (behind closed doors) only for this reason:
23.06 of Kauai County Charter: "Claims" (go to charter and read specific claim(s)).
In addition, this is important: Said "Claim(s)" must be filed with County Clerks Office.In other words, if there is no claim filed, there is no Executive Session (hidden meeting).

4) 3.07E has been in the Charter for a couple of years now and the Council has not been following the law.

see also these related Island Breath articles:
Island Breath: OIP Law in Limbo
Island Breath: Chuan on Politics