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HomeMy WebLinkAboutCOM 0001.005 2004-2006 Du-06-2004 10:d62m From-OFFICE INFORlIATION PRACTICES 16065661412 T-126 P 001/000 F-691 S ~ 0 ~ yy A/~~ i~1.'i ~ (i s• r LlaOw:Lp~onLr STATE OF HAWAII ~Aaeaa.AloNA,~3. OFFICE OF INFORMATION PRACTICES NO 1 CAPITOL DISTRICT BUILDING LESLIE H. gON00 uieTdurt wv~u'ee 230 SOUTH MOTEL STREET, SUIT[ 107 OiAeeroq HONOLULU. HAWN'198817 Tabphogr (608)589.1400 FAX (8081388.1412 E-L1A1L: oipehawal.pov WEBSITE; WWW~Inw9li.oW/qp FAX TRANSMITTAL DATE: December 6, 2004 T0: The Honorable Gary D. Safarik (FAX: 808-961-8912) The Honorable Bob Jacobson (FAX: 808-961-8912) The Honorable Lincoln S.T. Ashida (FAQ; 808-961-8622) FROM: Les Kondo TOTAL NO OF PAGES: 4 RE: Commiliment to Vote This office is transmitting a letter dated December 6; 2004 to Cottncilmembers Safarik and Jacobson from the Office of Information Practices. ? Original is being mailed to you. ? Original will NOT be moiled :o you, unless requested X This message is intlmded only Por the use of the individual or entity to which it is addressed and may contain information that h privileged or confidential. IP the reader o[ this message is not the intended recipient, or the employee or agtm[ responsible for delivering the message to the Intended recipient, you are hereby notified that any dissetnu6ation, distribution or copying of th[s Lrotumunication Is strictly prohibited. If you have received this rnmtnunil:ation in error, please notify us immediate~v by telephone and return the original to tts at the above address via the U.S. Postal Service. Thank you. Comm. No. Ref. To: reeedei Ref. Uate fIN f, Dec-06-2004 10:d87m from-OFFICE INFORIMTION PRACTICES I6085B61412 T-126 P.002/004 F-B91 X q, ~T Ds y @~ ~ 'Q~ unpauncLe STATE OF HAWAII OevGiWOq ~~FFICE OF THE LIEUTENgNT Q()VERNOR „,~".°q,'~R', OFFICE OF INFORMATION PRACTICES Le~uEKKONDO e~q~cioq N0.1 CAPITOL 018TR1GT BWLpING 260 SOUTH HO7GL STREET, SURE 107 HONOLULU, MAWAI'I B68T3 7elepOOOa: (808) 586-t 600 FAX (BOB) $86-1417 E-MAIL: IXp®nAwall.pov mvw.hawaii govlolp December 6, 2004 VIA FACSIMILE - ~,6~-I-I 12 The Honorable Gary D. ;iafarik The Honorable Bob Jacobson County Council County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear councilmembers Safarik and Jacobson: I was asked by a reporter from the Hawaii Tribune Herald whether, outside of a meeting, two councilmembers could commit to vote a certain way on a matter that is Council business, i.e., a matter that is before the Council or that is reasonably anticipated to come before the Council in the foreseeable future for consideration. I advised the reporter that the Sunshine Law, part I of chapter 92, HRS, does not allow councilmembers, outside of a Council meeting, to seek or make any commitment to vote on a matter that is Council business. From the Docemb6:r 3, 2004 edition of the Hawaii Tribune Herald, it appears that my comments were conveyed to you. The Hawaii Tribune Herald reports that both of you disagree with my interpretation of the statute. It also suggests that both of you have discussed and agreed to vote to appoint Connie Kiriu and David "Kimo" Frankel as the County Clerk and the Legislative Auditor, respectively, once the Council, with the newly elected councilmembers, meets. In fact, the article reports Councilmember :lafarik as saying that "the votes have been `confirmed and reconfirmed' in one-on-one meetings[.]" I assume that the County Clerk and the Legislative Auditor are appointed through Council action, i.e., by the vote of the Council, and not at the sale discretion of the Council Chair. Da-06-2004 1O:46am From-OFFICE INFOR4ATION PRACTICES 18065861412 T-127 P.OO3/O04 F-891 The Honorable Gary D. Safarick The Honorable Bob Jacobson December 6, 2004 Page 2 As you should know, the Sunshine Law generally requires, among other things, that all discussions, deliberations, decisions and Actions of the Council involving Council busine:sa be conducted at a properly noticed meeting. One of the exceptions to that requirement allows two councilmembers to privately discuss Council business outsidE~ of a meeting. See Haw. Rev. Stet. $92-2.6(a) (Supp. 2003). Flowever, the permitted interaction gxnressly prohibits the couneilmembers from making or seeking a coir~mitment to vote. Accordingly, if, as the Hawaii Tribune Herald appears to indicate, you have announced that Ms. Kiriu and Mr. Frankel will be appointed by the Council to be the County Clerk and the Legislative Auditor, respectively, it appears that you have discussed the appointments and have agreed to vote to appoint those individuals once the newly elected equncilmembers assumed their positions. If that is the case, your conduct appears to be contrary to the Sunshine Law. Councilmember Ji~cobson is reported to have conveyed his belief that, because the appointments are part of the Council's reorganization, councilmembers are allowed to make commitments to vote a certain way outside of a meeting. Councilmember Jacobson's belief, however, is wrong. While the statute allows two or more councilmembers but less than a quorum of the Council to discuss, in private, the selection of the Council's officers, there is no similar provision that would allow councilmem~bers to conuzut to vote on any other type of Council business. See Haw. Rev. Stet. § 92-2.5(c) (Supp. 2003). Assuming, as the l~awaii Tribune Herald appears to report, that you did decide upon Ms. Kiriu's a,.nd Mr, Frankel's appointments outside of a meeting, your action should be re-done as part of a properly noticed meeting. I strongly recommend that, when the matter is considered by the Council, you discuss, deliberate and decide the appointments, to the extent possible, as if you had not previously done so. In other words, it is my strong suggestion that, to rectify the apparent Sunshine Law ,violation, you repeat, in detail, all of the discussions and deliberations about the appointments that you may have had outside of a meeting and that the Council not merely °rubber~stamp" the appointments that you had decided upon during your earlier discussions. The public is entitled to participate in the meeting, including offering testimony on the appointments, and to hear, through the Council's public deliberation and vote, the Council's decision on the appointments. O~c-06-2904 10:4T~m From-OFFICE INFORMATION PRACTICES 18965661412 i-12T P.904/004 F-891 The Honorable Gary D. Safarick The Honorable Bob Jacnbson December 6, 2004 Page 3 If you have questions about whether your communication is allowed under the Sunshine Law, I strongly suggest that you consult with your attorneys or this office before engaging in the action. My office has also published a Sunshine Law guide that may be helpful in guiding your compliance with Lhe statute. The Sunshine Law guide is available through my office's website at www.hawaii.gov/oin. If you have any q>.restions about the above, please do not hesitate to contact me. Very tri}1 yo , ~r Leslie H. Ko 0 Director LFIK:cy cc: Tho Honorable Lincoln S. T. Ashida (via facsimile?