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HomeMy WebLinkAboutCOM 0537.056 2004-2006 "+yy Lincoln S.T. Ashida `p't-" ~ Corporation Counsel Harry Kim ' Mayor Gerald Takase ; Assistant Corporation o:'M~" • Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 • (808) 961-8251 • Faz (808) 961-8622 January 12, 2006 Honorable Stacy K. Higa and Members of the Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Chairman Higa and Members of the Council: RE: Reconsideration of Agenda Items Enclosed is an opinion dated January 10, 2006, from the State of Hawaii Office of Information Practices (hereinafter "OIP"), opining that no Sunshine Law violation occurred in the Hawaii County Council's action in reconsidering and voting upon committee reorganization at the November 22, 2006, meeting of the Council. In the final substantive paragraph of the OIP opinion, they state as follows: In keeping with the spirit of the Sunshine Law, however, we strongly recommend that the Council, when faced with an issue clearly of great concern to those present, make the possibility of reconsideration clear in order to avoid the confusion and disenfranchisement that obviously resulted here. The Council Chair (and respective Committee chairs) may wish to consider adopting a practice whereby a simple verbal advisory be placed on the record immediately after any matter is deferred during a meeting. The advisory may include a clear representation that the matter may be reconsidered at a latter portion of the meeting.' This presupposes there is a legally recognized and permissible means to reconsider a matter. In the case of the committee reorganization resolution, since the Council had not passed nor defeated the resolution, reconsideration on the same day (November 22) was permissible. In other words, what was reconsidered was the Council's earlier decision to defer the resolution. Reconsideration on November 22 would not have been permissible had the Council formally acted upon the merits of the resolution. Comm. No. ~ 37• Sb Ref. To; Hawaii County is an Equal Opportunity Employer and Provider , - ^ ~~~F Honorable Stacy K. Higa and Members of the Hawaii County Council January 12, 2006 Page 2 With respect to opinions from the OIP, they are advisory only. However, as we have previously consistently advised the Council and all our County clients, we advocate compliance with the spirit of the Sunshine Law, and urge you to consider adopting the aforementioned practice. Please contact me if you wish to discuss this matter further. Very truly yours.. LINCOLN S. T. ASHIDA Corporation Counsel Encl. S: Depls/Council/LSA Corresp./Letter re OIP opinion re reconsideration 1-12-06/LSAmr Jan-10-2006 03:44pm From-OFFICE INFOR31,1TION PRACTICES 18085861412 T-54B P.002/004 F-365 O ~ ^1 6~ J LWDA uNOL! STATE OF HAWAII OO+GtiOA ,owls It aoNA O FFICE OF THE LIEUTENANT GOVERNOR /41c a KonDD ~E~TE»wiTO°w~^+'^ OFFICE OF INFORMATION PRACTICES NO. 7 CAPITOI. DISTf11CT BUILDING 250 SOVTM MOTEL 3TP.EET, SUIT! t 07 MONOLU.U, XAWAI'190619 Telepnonr (BOB) SBb1400 FAX (808)58&1417 E~M1t41L: ~ ljj,flpy January 10, 2006 y~A FAC~MIj~E NQ (808) 961-8622 The Honorable Lincoln S. T. Ashida Corporation Council County of Hawai i 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Re: Reconsideration of Agenda Item (S RFO-C} 05-59) (S INVES 122005) Dear Mr. Aahida: This letter responds to your request to the Office of Information Practices ("O1P") for an opinion on whether the Hawai i County Council violated part I of chapter 92, Hawaii Revised Statutes (the "Sunshine I.aw"), by reconsidering and taking action on Resolution No. 207-05 in the afternoon session of its November 22, 2005 meeting. By this letter, we also respond to a request for an investigation into this same matter made by Ms. Tiffany Edwards, a reporter for West Hawau Today. We have reviewed the letter that you provided to certain Council members, opining on the validity of the Council's actions on this matter under the Sunshine Law, the Council's rules, and R,obert's Ru1QS of Order. Our opinion letter is limited solely to the question of whether the Council's actions violated the Sunshine Law. The Council's agenda filed for the November 22 meeting lists as an agenda item Resolution No. 207-05, which "[p)roposes to change the designations of the Chair and Vice Chair of certain Council Committees." Based upon our communications with you, we understand that the Council first considered the resolution during the morning session of the meeting. After taking substantial public testimony, the Council debated the matter, but then decided to postpone action on the resolution. The primary purpose for postponement was concern over C~ 6U~t`; G~-i ~ 1-~( 1~-~ h it ~ an-10-2006 03:44pm From-OFFICE INFORIOATION PRACTICES 18085661412 T-546 P.003/004 F-365 The Honorable Lincoln S. T. Ashida January 10, 2006 Page 2 whether the designation of co-chairs for Council committees violates the Sunshine Law. Xou have informed us that you have reviewed the videotape of the meeting and confirmed that no date was specified for reconsideration of the resolution, the Council stating that it would consider the matter when OIP was able to provide as opinion. You note a brief discussion by a Counal member alluding to the possibility of receiving an OIP opinion by the end of the day, but state that "there was a general sentiment that further discussion of the resolution would occur at a subsequent meeting of the Council, and not on November 22, 2005." In the afternoon session of the November 22 meeting, however, the Council reconsidered its decision to postpone ite consideration of the resolution and took action on the resolution.' Based upon our communications and the material we have reviewed, including various newspaper articles, we understand that the Council did take all public testimony on the resolution during three and a half hours of the morning session. However, the media and many members of the public did not attend the afternoon session, believing that the Council had postponed consideration of the resolution until the next Council meeting. Apparently, many who left believe that the Council intentionally violated the Sunshine Law by acting on the resolution after the public had left confident that the matter would not be decided at the November 22 meeting. The Sunshine Law requires a board to give public notice of any meeting to be held. Haw. Rev. Stat. § 92-7(a) (Supp. 2004). The notice must include an agenda "which lists all of the items to be considered at the forthcoming meeting[.]" No provision in the Sunshine Law restricts consideration of agenda items to a certain order or prohibits the reconsideration of an agenda item during the course of the meeting. We thus generally recognize the ability of the Council to dictate the course of discussion of agenda items, including taking agenda items out of order, recessing discussion of an agenda item then returning to that discussion at a different point during the meeting, and reconsidering items in accordance with its rules and the meeting rules of general application. It is our general opinion, therefore, that where proper notice has bees given, the Sunshine Law allows an agenda item to be discussed and reconsidered at any time during the course o>f the noticed meeting. Accordingly, we find that the ~ As this office has informed 1VI6. Edwards, OIP did provide the Council with an informal opinion that afternoon on the issue of whether the use of co-chairs would 'violate the Sunshine Law. :,an-1D-206 ~3:44om Frcm-OFFICE INFORL~ATION PRACTICES 18085B81d12 T-54D P 004!004 F-366 The Honorable Lincoln S. T. Ashida January 10, 2006 Page 3 Council's reconsideration and action on the resolution did not violate the Sunshine Law? We note, however, that the purpose of the Sunshine Law is to give the public the opportunity to exercise its right to know and to scrutinize and participate in the formation and conduct o1' public policy.~e, Haw. Rev. 3tat. 92-1 and 92-3 (1993); Kaapu v. ~1oha ToH~~ DgveloBment Coro.. 74 Haw. 86$, 884, 846 P.2d 882 (1993). And it is clear that many in attendance at the morning session were misled by the Council's action postponing its consideration of the resolution and left believing that they would have the opportunity to scrutinize the Council's action on the resolution at the neat Council meeting. We understand that legitimate reasons existed for reconsidering the matter in the afternoon session? Yn keeping with the spirit of the Sunshine Law, however, we strongly recoxnnxend that the Council, when faced with an issue clearly of great concern to those present, make the possibility of reconsideration clear in order to avoid the confusion and disenfranchisement that obviously resulted here. We trust that this opinion responds to your request, and we will close this matter with this letter. 13y copy of this letter to Ms. Edwards, we inform her of the conclusion of our investigation regarding this matter and the closing of her related file. Any questions regarding the foregoing maybe directed to this office. Very_~(~T,,r~~uly Your~~j¢~~~ (:6ZYK4 ~i~'~ 1. Cathy L. Takase Staff Attorney APP Leslie 11. Kondo Director CLT:cIt cc: Tiffany Edwards (via a-mail) ' We also premise this finding upon our understanding that the public was given full opportunity to present testimony on the resolution during the morning session. s For example, as correMly noted by ono Council member, consideration of the resolution at the next Council meetizig would have required the Couadl to aQaia allow public testimony on the resolution. Also, as noted above, the Council did receive the OIP opinion sought.