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HomeMy WebLinkAboutCOM 0037.000 2004-2006 vv or CONSTANCE R. KIRIU DAVID KIMO FRANKEL County Clerk _ ,:-l Legislative Auditor . i=l,, ~ ~ I ~ ' ti~ai'di'~J Couuty of Hafv~t `Y Office of the Couuty Clerk 25 Aupuni Street, Suite 209 Hilo, Hawaii 96720 Telephone: (808) 961-8255 Facsimile: (808) 961-8912 December 7, 2004 TO: Lincoln S.T. Ashida, Corporation Counsel FROM: Constance R. Kiriu, County CIerI~L~ RE: Videoconferencing WRK 04-8885 Thank you for your memorandum dated December 2, 2004, responding to the Legislative Auditor's Office request for an opinion about the necessity of terminating a Council meeting if al] council members are in one location when both audio and video communication cannot be maintained (Section 92-3.5(c), Hawaii Revised Statutes). We apologize for the confusion generated by our memorandum. This attempts to clarify your concerns. 1. Reference to County Clerk Alan Konishi's suggestion that the Fair Information Practices Act should be reviewed and the Office of Information Practices consulted occurred in a conversation he had with Legislative Assistant Skip Be[hea. Since you already conferred with the Director of Office of Information Practices Leslie Kondo, the suggestion is moot. 2. Admittedly, the memo from County Clerk AI Konishi attached to our request did not speak directly to our question. We have not found a subsequent memo that reached a conclusion on this matter. The Clerk's statement may have been reported in one of the newspapers. In spite of this mix-up, you have concluded that as long as all Council Members are in one videoconference location, the meetine does not have to be terminated if the audio or video cannot be maintained. Notices and agendas will include information that (1) testimony may be presented by videoconference system a[ the selected location(s); (2) the meeting may be viewed live at the selected location(s); (3) should the audio or video connection fail at any time during the meeting, the meeting will continue; and (4) written testimony should be submitted prior to the meeting to assure the Council has received the substance of the testimony. Until videoconferencing is available in a laree meeting room in Kona, we are unable to provide reciprocal services from Kona to the Hilo Council Room. We would appreciate any further questions or comments you may have. Please feel free to contact me at Ext 8271. cc: Council Members (w/att) Legislative Assistant Skip Bethea 4~ Council Services Supervisor Glynis Yamada (w/atQ Comm. No. .7 Executive Assistant Alfred Robello (w/att) Ref. To: Legislative Auditor David Kimo Frankel (w/att) Ref. Uate o [UUq Hawaii County is an Equal Opportunity Provider and Employer ~""`"+y~ Lincoln S.T. Ashida Harr Kim . I~ Corporation Counsel Y Mayor Gerald Takase Assistant Corporation o:'M~"'~ C~nsel r m COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 41 101 Aupuni Street, Suile 325 Hilo, Hawaii 96720262 (808) 961-8251 Fax (608) 961-8622 - m - December 2, 2004 n G] , Qi MEMORANDUM TO: CONSTANCE KIRIU Legislative Auditor FROM: LINCOLN S. T. ASHIDA ~JU~ Corporation Counsel RE: Videoconferencing Our Entry No: WRK 04-8885 You have asked our office to opine on the County Clerk's thoughts concerning the propriety of videoconferencing for Hawaii County Council meetings. Specifically, your request reads as follows: The County Clerk has concluded that the Council cannot guarantee that the current videoconference system will work every time. The Clerk believes that unless the State law is changed, failure of the videoconference system would necessitate termination of a Council meeting and important actions could be irreparably frustrated. Attached for your review is a memo from AI Konishi, County Clerk, dated September 14, 2004. The Clerk suggests reviewing the Fair Information Practices Act and consulting with the State Office of Information Practices. Therefore, the question is as follows: Does Section 92-3.5, HRS, prevent the Council from continuing business if all the "board" members (in this case the Council) are present atone videoconference location and the videoconference system becomes inoperable? If the meeting can continue, we would like to amend the Council's new Rules to include videoconferencing procedures. Thank you very much for your expeditious response. Hawaii County is an Equal Opportunity Employer and Provider A copy of your request is attached hereto. At the onset, your reference to the "Fair Information Practices Act" may be in error. We believe you mean the Uniform Information Practices Act as contained in Chapter 92F of the Hawaii Revised Statutes, as amended (hereinafter "HRS"). Please let us know if we are in error. A copy of County Clerk AI Konishi's memorandum dated September 14, 2001, which was attached to your original request, is also appended hereto. We are not certain whether there have been subsequent or previous memoranda from the County Clerk concerning this issue, or if there have been any discussions with him that are contemplated in your request to us. Thus, our analysis and response is limited to the present written information provided us by your office. We are concerned that you have either (1) sent us the wrong memorandum from the County Clerk, or (2) you have misread the content of Mr. Konishi's September 14, 2001, memorandum. In your request to our office, you state: "The Clerk believes that unless the State law is changed, failure of the videoconference system would necessitate termination of a Council meeting and important actions could be irreparably frustrated. Attached for your review is a memo from AI Konishi, County Clerk, dated September 14, 2004. The Clerk suggests reviewing the Fair Information Practices Act and consulting with the State Office of Information Practices." Mr. Konishi's memorandum does not mention the need to change State law. Nor does Mr. Konishi's memorandum conclude that system failure would "necessitate termination" of a meeting (in fact, Mr. Konishi's memorandum suggests the meeting should continue, despite system failure). Finally, Mr. Konishi's memorandum does not mention reviewing our State public records law (I am not sure why that would be necessary), nor consulting with the Office of Information Practices. Mr. Konishi's memorandum appears to be deliberative in nature. He apparently attempts to share his thoughts with the Council members, in order to initiate discussion and receive feedback on this issue. It does not contain any of the conclusions you have referred to above. If there is a subsequent memorandum from Mr. Konishi reciting the conclusions averred to above, please provide it to me, so we may properly address these concerns. You ask the following legal question: "Does Section 92-3.5, HRS, prevent 2 the Council from continuing business if all the 'board' members (in this case the Council) are present at one videoconference location and the videoconference system becomes inoperable?" The short answer to this question is "no." HRS Section 92-3.5(c) states as follows: A meeting held by videoconference shall be terminated if both audio and video communication cannot be maintained with all locations where the meeting is being held, even if a quorum of the board is physically present in one location. We have confirmed with Leslie Kondo, Director of the State of Hawaii Office of Information Practices, that this section contemplates terminating a meeting where some of the board members are in one location, and some (or one) board member(s) are in another. However, if all board members are in one location, and there has been either a video or audio system failure, the meeting may nonetheless continue. This is consistent with Mr. Konishi's statement in his memorandum, that "I suggest that if for any reason (equipment or operator problems) a videoconference is interrupted, the meeting should continue as scheduled." The Office of Information Practices has repeatedly stated that Hawai'i's Sunshine Law provides a "base minimum" of what is required in our State to ensure and encourage public participation in government process. Each County (or agency, board or commission) is empowered to enlarge the rights of the public, as they see fit. This is a policy decision which belongs to the individual agency, board or commission, so long as this policy does not conflict with the State Sunshine Law, Hawaii County Charter, or other superior law. Again, we are concerned that we have not been provided all memoranda or information concerning decisions or opinions rendered by the County Clerk, as statements attributed by you to Mr. Konishi do not appear in the September 14, 2001, memorandum you provided us and reference. We appreciate the Council is desirous of including these videoconferencing procedures in their new rules, so we will respond as soon as we are provided the additional information. Please e- mail this information to Lashida(a~co.hawaii.hi.us. Thank you. Encls. S: Departments/Leg Auditor/LSA Misc. Corresp./Memo re videoconferencing 12-2-04/LSAmr 3 OFI=ICE OF THE CORPORAL ~JN COUNSEL Inter-Departmental Work Request Form DATE: November 26, 2004 TO: OFFICE OF THE CORPORATION COUNSEL ATTN: Lincoln Ashida ame o orney assigne to your epartmen FROM: Connie Kiriu Telephone No.: x8388 ame Legislative Auditor E-mail: ckiriu@co.hawaii.hi.us apartment CONTACT Telephone No.: x8580 PERSON: Skip Bethea E-mail: sbethea@co.hawaii.hi.us ame TYPE OF WORK REQUESTED: ® Opinion '"Optional: ff applicable, please indicate a specific deadline ? Draft for Corp. Counsel response: 12/3104 ? Review and Comment ? Other BRIEF DESCRIPTION OF WORK NEEDED: The County Clerk has concluded that the Council cannot guarantee that the current videoconference system will work every time. The Clerk believes that unless the State law is changed, failure of the videoconference system would necessitate termination of a Council meeting and Important actions could be irreparably frustrated. Attached for your review is a memo from AI Konishi, County Clerk, dated September 14, 2004. The Clerk suggests reviewing the Fair Information Practices Act and consulting with the State Office of Information Practices. Therefore, the question is as follows: Does Section 92-3.5, HRS, prevent the Council from continuing business if all the "board" members (in this case the Council) are present at one videoconference location and the videoconference system becomes inoperable? If the meeting can continue, we would like to amend the Council's new Rules to include videoconferencing procedures. Thank you very much for your expeditious response. "Please route this form to the Office of the Corporation Counsel accompanied by your documentation. You will receive a copy of this form, indicating the assigned attorney, entry number, and the expected response date. Please remember to use the Entry Number appearing below on all subsequent corresaondence or submissions to Corporation Counsel's Office. For Corporation Counsel ..~e Only: ENTRY NO. WRK 04- Date Received/Assigned: By: Attorney Assigned: Response Deadline: S: Departments/COrporation CounselMterdepartmental Work Request Form2 To: Council Me From: Al Konishi Date: September 1 O1 RE: Videoconferencing We now have the physical ability to accommodate citizens from West Hawaii who wish to view or participate in Council and committee meetings via videoconferences. However, before going forward, there are a number of issues which should be addressed. Most issues deal with staffing, the most important two issues are of policy questions. Please share your thoughts with me about the following: 1. Disruption of Service (policy question). I believe that before we induce anyone not to attend a meeting in-person, we should advise them of our policy relating to system failure. I suggest that if for any reason (equipment or operator problems) a videoconference is interrupted, the meeting should continue as scheduled After studying a number of logistical matters, it is my conclusion that the Council can not guarantee that the videoconference system will work every time. Further, as discussed below, there may be times when unforeseen circumstances require that a videoconference site be shut down. There are at least a few times each year when the Council has Charter-mandated deadlines (for example, budget or the overriding of a veto). If the Council's policy will be to terminate a meeting if the videoconference is disrupted, important action could be irrepazably fiustrated. For example, something very mundane, such as the misplacing or malfunctioning of the remote control device in West Hawaii (perhaps due to a dead battery) could prevent the Council from passing the Budget on time. 2. Scheduling. If we had unlimited time, staff; money and space, we could have every Council and committee meeting available to West Hawaii on a gavel-to- gavel basis. The biggest reason we are prevented from unlimited access is that we do not control the West Hawaii site. Although I am sure that the Mayor's Office will cooperate with us to the fullest extent, there may be times when the conference room will not be available to us (if we videoconference committee and Council meeting, most months we are asking for four working days cut of the 20- 22 working day month.) Unfortunately, the equipment is not very portable so using an alternate site is out. Also, there may be times when there may not be available staff in the Mayor's office to assist citizens in operating the equipment or just keeping the office open (for example at lunch time). I have enlisted the help of Mr. Blan from CERG and he can mobilize volunteers to learn to operate the equipment, but what do we do after 4:30 pm or when the office staff is at lunch? Also, just as in Hilo, after the first few items, the room may empty. Do we keep the equipment on during such periods? NIy sug_oes[ion is that we advertise the availability of the equipment and tell citizens that if and when they wish to participate by videoconference, they should make appropriate arrangements with the Mayor's office and the Clerk's office. If we are aware of someone participating by videoconference, we should try to move The item up on the agenda and then turn off the system after the item of interest is completed or when the room clears or when the last qualified volunteer or staff person leaves. Another possible solution is to have members of our West Hawaii Council staff operate the system and staff the meeting from gavel-to-gavel. 3. Committee meetings (policy question.) If you decide to make committee meetings available via videoconferencing, some thought should be given to who will operate the system in Hilo. The possibilities are: the civil service staff person assigned to the committee (may not be practical); the Chair's council aide, some one from the Legislative Auditor's office or the Chair. Iv1y suggestion is that each committee chair decides whether to allow participation via videoconference and if so, to designate the person who will operate the system in Hilo. 4. Notice. Below is a first draft of a new paragraph which would be added to our agendas and newspaper ads: 77ae Council Room in Hilo and the Mayor's West Hawaii Office (address) are equipped with videoconferencing devices. Persons wishing to view/testify by use of the equipment may do so by contacting: I) the Mayor's West Hawaii Office (329-5226) to determine availability of the facility; and 2) the Clerk's Office in Hilo (961-8255). Potential participantc are advised that in the event of system failure, the meeting will continue. Persons who feel that their presence/participation in the meeting is essential, shozrld attend the meeting in person or mail/fax in their comments. s. Further Improvements to Access. Hopefully, we will be successful in proving that videoconferencing is an effective means to improve public access. If so, I will work to add sites (Puna, Waimea, Kau, Kohala, etc.). Another improvement might be real time broadcasts via the Internet. ' Page 1 of 1 §92-3.5 Meeting by videoconference; notice; quorum. (a) A board may hold a meeting by videoconference; provided that the videoconference system used by the board shall allow both audio and visual interaction between all members of the board participating in the meeting and the public attending the meeting, at any videoconference location. The notice required by section 92-7 shall specify all locations at which board members will be physically present during a videoconference meeting. The notice shall also specify that the public may attend the meeting at any of the specified locations. (b) Any board member participating in a meeting by videoconference shall be considered present at the meeting for the purpose of determining compliance with the quorum and voting requirements of the board. (c) A meeting held by videoconference shall be terminated if both audio and video communication cannot be maintained with all locations where the meeting is being held, even if a quorum of the board is physically present in one location. [L 1999, c 121, ~1; am L 2000, c 284, ~2] Prrciuu~ Next 1'rcvious Next