A blog post by Kauai journalist Joan Conrow took the Garden Island newspaper to task for apparently basing a story on a Maui sunshine law complaint solely on a press release from the authors of the complaint.
The complaint was filed with the Office of Information Practices by the Hawaii Alliance for Progressive Action (HAPA), headed by former Kauai county council member Gary Hooser.
HAPA alleged “egregious violations” of the sunshine law by Maui County Council Chair Mike White.
According to the Garden Island:
After Election Day, on Nov. 9, documents show that White met, either in person or via phone or electronic means, with multiple members of the Maui County Council, discussed the council organization and came to a decision that involved agreement by a quorum — all without public notice and without a public meeting being held.
Conrow points out that the one-sided Garden Island story contrasted with a report in the Maui News, which included comments from White and reference to prior OIP rulings.
From the Maui News:
White countered in an email to The Maui News that an opinion letter published by OIP on Nov. 14, 2002, confirmed that incoming council members are not subject to the state Sunshine Law until taking office. He added that the complaint filed by HAPA is “highly political and unsubstantiated.
“This is the same political organization that trained many of the ‘Ohana Coalition candidates, including my opponent, that ran against sitting members in the last election,” White said. “This organization and their supporters are using fear tactics and intimidation to try and get their way.”
Click here to read a summary of the 2002 OIP opinion, or the opinion’s full text.
The opinion confirmed White’s view that new council members are not subject to the law until they take office. In addition, the opinion notes a provision allowing limited private discussions about the selection of officers.
The sunshine law provides:
Discussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board’s officers may be conducted in private without limitation or subsequent reporting.
Interestingly, the 2002 opinion was made in response to a request by then-Garden Island reporter, Tony Sommers.
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
Aloha Ian,
Yes, the issue is complex with various opinions and few firm answers.
However it is clear that Mr. White communicated with and negotiated with more than a quorum of sitting Maui Council Members, plus most of those that were newly elected but not yet sworn in. Ultimately these negotiations held in secret without public notice resulted in 5 members agreeing in advance to vote in support of his nomination prior to the public meeting that was later scheduled.
What is usually left out of the conversation of those who defend Mr. Whites actions is that the Opinion Letter 02-11 also states the following:
Section 92-2.5(c), Hawaii Revised Statutes, states “[d]iscussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board’s officers may be conducted in private without limitation or subsequent reporting.” Thus, less than a quorum of a board may meet privately and without limitation or subsequent reporting to discuss selection of board officers, regardless of whether or not board members have officially taken office. Whether board members have officially taken office is irrelevant, so long as the meeting is restricted to less than the number of members that would constitute a quorum.
It is not illegal for a quorum of newly elected members of a council to meet to discuss selection of officers prior to commencement of their terms of office. However, a loophole in the Sunshine Law allows such an assemblage, which would be prohibited after councilmembers officially take office. Therefore, the OIP strongly recommends that a quorum of members-elect of a board not assemble prior to officially taking office to discuss selection of board officers, in keeping with the spirit of the Sunshine Law.”
Hopefully the Office of Information Practices can shed further light on this matter in the near future.
It is interesting to note that the recently elected Kauai County Council publicly noticed and held a public meeting to discuss its pending organization, prior to the actual swearing in and actual election of the new chair. This was a public meeting in which the newly elected (but not yet sworn in) council members were invited to participate (publicly).