2007-03-09 Investigation Into Alleged Sunshine Law Violations

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Honorable Leslie H. Kondo March 9, 2007 Page 4 (1) discussion of leadership issues of the Council, and (2) the permitted discussion of County issues, so long as the discussion did not involve specific matters of"board business." Based on the foregoing, we have made the following factual and legal findings: Factual Findings 1. The Hawai'i County Council is a "board" as defined by Section 92-2, Hawaii Revised Statutes, as amended (HRS), and its members are subject to the Sunshine Law. 2. HRS Section 92-2.5(c) provides that "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." 3. The vast majority of discussion held on February 23, 26, and 27 concerned the present leadership of the Council, and such unnoticed and non-agendized discussion is permitted by the Sunshine Law. 4. The Sunshine Law does not prohibit Council members from discussing items of County interest in general terms, as it only prohibits more than two members from discussing items of"board business',5 outside of a properly noticed meeting. 5. There was no discussion of"board business" during the February 23, 26, and 27 interviews with Council Members Higa, Nae'ole and Yoshimoto. 6. The discussion concerning Bill 51 was limited to a general statement by Council Member Higa that there was no guarantee the bill would have passed had there been six or more Council members present to vote on it, and a general statement by Council Member Nae'ole that the contractor should be changed.s 7. In the blog entry of February 27, 2007, the author alleges that "They all complained that the Mayor knew about the trash issue and the additional cost of$180K 90 days ago, and did not bring it up until the last minute. It's all the Mayor's fault, not theirs for leaving early." This discussion, assuming it did occur, did not constitute "board business," 5"Board business"or"official business" has been defined by the OIP as"'matter(s)over which...(a) board has supervision, control,jurisdiction, or advisory power.' Such matters are those that are before a board or are reasonably expected to come before a board." OIP Opinion Letter No. 04-01 (January 13, 2004). 6 The contract between the County and the contractor is negotiated and executed by the Mayor, and not the Council. Thus, the Council has no"supervision, control,jurisdiction, or advisory power"over the decision concerning the selection of a contractor. Thus, it is not a matter of "board business."