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HomeMy WebLinkAboutCOM 0724.002 2004-2006 `•".v~ Lincoln S.T. Ashida Har Kim ~ Corporation Counsel ry ' Mayor i• Gerald Takase : , Assistant Corporation b.'a:•'• Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-0262 • (808) 961-8251 • Fax (808) 961-8622 , PRIVILEGED AND CONFIDENTIAL COMMUNICATION 4; ATTORNEY-CLIENT COMMUNICATION r_~ NOT A PUBLIC RECORD ~ ~ - _ _ fV - , f; July 24, 2006 YJ Sent via email to all Council Members: hard copv also to the Chair Honorable Stacy K. Higa and Members of the Hawaii County Council County of Hawaii 25 Aupuni St. Hilo, HI 96720 Dear Chairman Higa and Council Members: RE: Office of Information Practices Opinion Letter No. 06-05 We received the enclosed opinion from the State of Hawaii Office of Information Practices, concerning the recent request by our office to amend the Council's meeting agenda on March 1, 2006, to include settlement discussions concerning Kelly v. 1250 Oceanside Partners, commonly referred to as the Hokuli'a case. Suffice it to say our office has a significant difference of opinion with the Office of Information Practices (hereinafter "OIP") on this particular case and issue. However, since OIP has the last word, further discussion with them would be futile, and warrants no further elaboration here with the Council. Thankfully, at a subsequent meeting of the Council, the exact same matter was presented to you for ratification purposes. What this means is the previous action deemed illegal by the OIP opinion (March 1, 2006) was properly heard at a subsequent properly noticed meeting, and duly voted upon by a majority of the Council. Thus, no further action on this Hokuli'a case by the Council is necessary, and we do not anticipate any further legal action by the Big Island Press Club. Comm. No. Z • Z Ref. To: Hawaii County is an Equal Opportunity Employer and Provider Ret, Dare-,flit 25 9nns~ Honorable Stacy K. Higa and Members of the Hawaii County Council July 24, 2006 Page 2 Please let me know if you have any questions or concerns regarding this matter. Thank you for your kind attention. Very truly yours, C~h~=~ LINCOLN S. T. ASHIDA Corporation Counsel Encl. c: Honorable Harry Kim, Mayor (w/encl.) Corporation Counsel Attorneys (w/ encl.) S: Litigation/Oceanside/Corresp./Letter to Council 7-24-06/LSAmr Jul-1B-2006 04:26pm Fran-OFFICE INFORMATION PRACTICES 160656614{2 T-B6T P.001/006 F-B22 4 e-M', I es urroA,..,~, ware oP HAwAII .o~as+ea OFFICE OF THE LIEUTENANT QOVEiR OR JAMNRAIOaA,JR OFFICE OF INFORMATION PRA CES tseeuRlawea UanaMNf eoVfhgR DIRGCIC~ N0.1 CAP17d. DuT111CT DUILpINO ~0 801JM HOTR STREET, $UrrE 707 F10NOlUlU, NAWAm 06813 TelepMne: (BOBI586•tIW FAX (8081 Seb141 EMAIL' oy~Olwwdl.yM www.MRait00v/ap FAX TRANSMITTAL DATE: IDLY 19, 20015 NO.OF PAGES: 7 t'~a(~) m follow TO: C~The Honorable I.incola Ashlda PAX: (808) 961.8622 Corporation Counsel County of Hawaii The Honorable Stacy Higa Councel Chair FROM: Catby Takase, Staff Attorney (808) 586-1412 Pax Office of Information Practices (808) 586-1400 phone RE: Opinion I.eaer 06A5: Amendment of Agenda; Fxecu 've Mexxing Agenda Origim[v being fled to you. I" I Orlgtna! will NOT bie mailed ro you, wrlers requested !f there ors any problems receiving rhta message, please contact: CONTACT: Dawn Shimabukuro PIi M: SS6-1400 WAI3NING~ ThU messsge m hrtendod am~v rot the use a1 the fndtvlduai ar eealty wwch it is addrnead and may contain iarormeams our b prlv0eged or cwotWeadai. u the reader ee ewe meswse is not irdeaald reiipkm, or ate employee or a$eM reepoadhk tar delivering au message to the intmdnd redpieat, you are mafSed that aay dt~minafWn, d(striDweon or oopyhsg or this commnoteaaoa b etrictAq protdbtted. If yw bare 'ved thfe coamodsatlon he error, pewee tatlry su loauedbtdy by telephone and return the oriaiual to us at the a addros via the US. Pocul SerNce. Thaoic you. Ju1-10-2006 04:26pm Fran-OFFICE INFORIUTION PRACTICES 1806566142 T-B6T P.002/006 F-622 ~4 i r u"o ¦ STATE OF HAWAII OFFICE OF THELIEUTEdNANTGOVEA OR I~ueaROwo OFFICE OF INFORMATION PRA ICES No., uarca.oaT111eTSwwu+o ?SO SOUTH 11~'rR aTRgT, S111fE 107 NON~LIILU, NAWAFI9mmIS TWphon~ (80S)SB61CW MX: (m081 m88-161 EMAIL: timlJ~. wei,aw bplpm,AmlNCtl~'[91¢ OP1I~TION Requester: Big Island Press Club Board: Hawaii County Council Date: July 19, 2006 Subject: Amendment of Agenda; Executive Mee Agenda (S INVES-P 06-15) Requester seeks an opinion on whether the Haw ' County Council (the "Council°) violated part I of chapter 92, Hawaii Revised fatales ("HRJ9°) (the "Sunshine Law"), by amending the agenda for its mee ' held on March 1, 2006, to consult with the Office of the Corporation Counsel ("Co ration Counsel'), County of Hawaii (the "County°), is executive session regarding the pending case of Kelly v. 1260 Oceanside Partners. No. 00-01-01928 (8ifl Cir. fil Oct• 80, 2000) (commonly referred to as the "FIokulia lawsuit"), brought against a County' and other parties. Requester also seeks an opinion on whether the shine Law allows a board to place a generic entry of "executive session" on all of i agendas without identifying the subject matter even when the board kno s the subject matter prior to the meeting.i Unless otherwise indicated, this advisory opinion is based upon the facts presented in Requester's letter to this office received on ch 8, 2006; correspondence sad other communications from Mr. In Ashida, Corporation 1 Requester has made certain factual assertions fed to this question. However, because we have not been asked to rule on a a action Sotuetlly taken, but instead have been asked fox as opinion on this general ques on, investigation into the faotual underpinnings here was unaecesaary to render this o " 'on. Accordingly, we have made no attempt to verify the asaertiooe made, and we do no bq this opinion make any ftading with regard to those assertions. O1P Op. Ltr. No. 06-05 38~ CXo=f lZZS3 Jul-IB-2006 04:23nm Fran-OFFICE INFORMATION PRACTICES 13035861412 T-567 P.003/008 F-322 Council Counsel; a letter from Mr. Ivan Torigoe, Deputy Corpor~tioa Counsel, to the dated February 28, 2008, which was provided to this office for its in camera review; the March 1 meeting agenda; and the actions taken at a March 1 meeting, as reported on the Council's webpage? 1. Whether tho Sunshine Law allowed the Co cil to amend the March 1 meeting agenda to consult with Corporation Counsel in xecutive session regarding issues related to settlement of the Hokulia lawsuit. 2. Whether the Sunshine Law allows the use f generic "executive session" entries on agendas without identification of the subject matter of the executive meeting. BRIEF' ANSWEK3 1. No. The Sunshine Law did not allow the CI until to amend its filed agenda to add the Hokuli a lawsuit as an item for coasid ration in executive session. An agenda may not be amended to add an item if it is o reasonably major importance and action on the item will affect a signifi t number of persons. liven the potentially widespread legal effect of and sub tantial County liability that could arise from the Hokulia lawsuit, OIP must iin that consideration of matters relating to the lsweuit that could realistically ect settlement of the litigation was of reasonably major importance and that ction on those matters would affect a significant number of parsons. 2. No. The Sunshine Law does not allow the of generic "executive session" entries on an agenda to aAow a board to coasid ran undisclosed matter in an executive meeting. Such entries would not provide a public with the statute's expressly required public notice of the agenda item to b considered and the purpose for which the executive meeting is being held. DISCUSSION Amendment of Agenda to Consider Ilokulia Laws 't Not Allowed The Hokulia lawsuit concerned the development f a $1 billion residential project in Kona s During the proceedings, the trial co issued certain land use rulings viewed by many as having statewide sigaifican regarding, among other s httpJ/www.oo.hawaii.hi.us/couaoillderks/2004 008.htm. s httpJ/www.atarbullotia.oom/2006/09/02/rowc/ l.html. OIY Op. Ltr. No. 06-05 2 Jul-19-2006 04:30pa Fran-0FFICE INFORIiATION PRACTICES 180858614{2 T-667 P.004/008 F-822 things, the types of housing that may legally be conatru on land designated for agricultural use 4 Subsequently, approximately 150 Ho ulia lot owners filed two lawsuits against the County and the State of Hawaii be ed upon, among other things, the County's actions taken in and as a result of a Iiokulia lawsuit. The owners asserted claims for damages in excess of $265 ion s By letter dated February 28, 2006, Corporation unsel requested that the Council amend its filed March 1 meeting agenda, pur t to section 92-7(d) of the Sunshine Law, to consider in executive session certain i sues related to the settlement of the Hokulia lawsuit. The Council agreed amend the agenda. Corporation Counsel stated in its March 9 letter to OIP sad in a telephone conversation with OIP) s that it concluded that the ame invent was proper because the specific matters pxesented to the Council for action ere, in its opinion, relatively minor items and, therefore, it did not believe at action on those items would affect a significant number of persona. Section 92-7(d) of the Sunshine Law provides tha a filed agenda maybe amended to add an item by atwo-thirds recorded vote o all members to which the board is entitled; °providod that no item shall be added the agenda if it is of reasonably major importance and action thereon by the oard will affect a significant number of persons." Haw. Rev. Stat. § 92-7( ) (Supp. 2005). Deteraunatioa of whether an item "is of reasonably maj r importance" and when board action thereon will "affect a significant number of persons" is fact-specific and must be made on a case-by-case basis. OIP has reviewed an camera the matters related the Hokulia lawsuit that were discussed and decided by the Council in the March 1 executive session. OIP agrees that it may reasonably be argued that the spec c issues presented were "minor" in the sense that they required the County to a to certain conditions that the Council could reasonably believe to be of relati sly little consequence to the * http!/starbuUetin.com/2006/03/14/news/story0 .html; httpJlstarbulletin.com/ 2006/03/15/newa/story06.htm1; httpl/starbulletin.com/200&/0 02/aews/story0l.html. s httpJ/www.hokuliaupdate.cam/pdf/statecourt complafnt.pdf; http://www.hokuliaupdate.com/pdf/fedcourt_amcomplaiat.pd . s On or about March 8, 2006, Corporation Co 1 contacted OIP to discuss concerns raised by a news reporter regarding the Council's eat of its zaeeting agenda to include the Ilokt~lia lawsuit. Based upon informs on provided and Corporation Counuel's stated reasoning, OIP agreed that Corporation el's determination that the amendment was allowed wider the Sunshine Law appeared be based upon a reasoned sad good faith interpretation of the statute. Although OIP subsequently determined that the statute did not allow the amendment, this determi Lion should not be cwzlatrued as implying that the Corporation Counsel's interpretation w unreasonable., Haw. Rev. Stat. $ 92-13 (1993) (penalties imposed upon willhal violatio OIP Op. Ltr. No. 06.06 3 Jul-1B-2008 04:30ps FrorOFFICE INFORMATION PRACTICES 130353614 2 T-367 P.005/OOB F-B22 County and because the action taken on those speoitio issues, is line with Corporation Counsel's recommendation, would arguably,, result in minor consequence to the County financially, legally or otherwise. However, because the Sunshine Law's provisions must be liberally interpreted to implement this state's policy to conduct government as openly as possible, OIP does not believe that the importance of agenda items and the effect of actions thereon can be narrowly measured in the manner done by the Council. ~ Haw, lZev, Stat. § 82-1 Q883). The importance of an agenda item and the effect of a decision oa that item cannot be measured solely by looking to the distinct issue presented for deliberation and decision at that particular meeting or the consequences of the action takes on the item viewed in isolation. Rather, the item's importance and the potential consequence of any action taken on it must be viewed relative to the larger context in which it occurs. Where a litigation involving the County has potentially widespread legal ranu$cations or substantial financial consequences to the County, consideration of say matter that could realistically affec~ the settlemeat~ of that litigation is clearly of reasonably major importance to those who wuld be affected by the outcome of the case. Further, any action on a matte that could realistically affect the outcome of the case would have an effect, good or bad, on the many who would be affected by the court's decision fn the case or w o would indirectly shoulder the financial repercussions. For example, the Council's approval of certain eo ditiona necessary to the proposed settlement of the case was likely a direct con butor to the settlement of the Hokulia lawsuit, which ultimately entailed relativel minor legal or financial ramifications for the County. If, however, the Council h d not voted to agree to those conditions, the consequences to the County, inclu 'gall of its taxpayers and landowners, might have been substantially different: A o" vote could have precluded settlement of the case, leaving the County s ptible to potentially major financial and legal ramiffcationa. The import of a Council's action, thus, cannot be measured by the isolated financial or other si 'Seance of the specific conditions agreed to. It must be measured by the significance the Council's agreement to those conditions had for the Hokulia litiga, on and what could have resulted if the Council had not agreed to the conditions. Accordingly, OIP finds that the Sunshine Law di sot allow the Council to amend its filed March 1 agenda to include the Hokulia 1 wsuit as an agenda item. OIP notes, however, that the agenda item was properly nsidered under an executive meeting purpose and, even if the stated agen item had been included in the filed agenda, it would not have revealed the specific ubstance of the matter Thus, if a matter for consideration has no realistic potential to significsatly affect the outcome of the case, amendment of the agenda to consider that matter maybe allowed. OIP Op. Ltr. No. 06-06 4 Jul-iB-2006 04:30pm Froa-OFFICE INFORMATION PRACTICES 18085861412 T-867 P.008/008 F-322 considered. Under this particular circiunstance, therefore, inclusion of this item is the filed agenda would not have enabled interested members of the public to observe the board's discussion, so the item's addition to the agenda in violation of the Sunshine Law would likely not justify voiding the action taken. See Haw. Rev. Stet. 92-6(aX4) (Supp. 2005) (allowing a closed meeting to consult with the board's attornep on questions and issues pertaining to tl~e board's powers, duties, privileges, immunities, and liabilities) and -11(Supp. 2 5); see also discussion below (notice of executive meeting purpose should allow public to determine whether meeting is proper without defeating Iawful p se of meeting). O]P further notes that Corporation Counsel's req est that the Council add the item to its agenda was made on February 23, 2006, hick was six calendar days prior to the March 1 meeting. Given this timeframe, th Council should have simply filed a new agenda on February 2S that included the Hokulia lawsuit as an agenda item that the Council anticipated would be cons' Bred in eaecutive session $ $gg Haw. Rev. Stet. § 92-7 (Supp. 2005) (requiring noti to be filed six calendar days before meeting).s The filing of a new agenda wool have avoided the requirements for amending the agenda. Generic Rxecutive 6ession Entries on Agenda Not ('Allowed The Sunshine Law contains the following notice and agenda requirements: (a) The board shall give written public not ce of any regular, special, or rescheduled meeting, or any executive acting when anticipated in advance. The notice shall include agenda which lists all of the items to be considered at the forth Wing meeting, the date, time, and place of the meeting, and in the c e of an executive meeting the purposes shall be stated. Haw. Rev. 3tat. § 92-7(a) (emphasis added). A plain rea ' g of this section requires notices for all meetings to include an agenda listing all tams to be considered. An agenda must, therefore, also include all items to be (or nticipated t0 be) considered in as executive meeting. Tn addition, the statute plaixl and expressly requires that, for an executive meeting, the agenda state the p oses for which the executive meeting is being held. a See Haw. Rev. Stet. § 92-4 (1993) (executive meting requires aPlirmative vote is open meeting of two-thirds of the Councl members p eseat). e We recognize that time was of the essence bec~ue of wort deadliaea set and the tenuous aatuso of settlements. 1f the Council was unabl to file n new agsnda for the March 1 meeting six days is advance end March 1 was the t day it wind take action to meet a wort deadline, the Council would likely have been ab to hold an emergency meeting as provided for under eactioa 92-8(b) o#tha $ 1.aw. OIP Op. Ltr. No. 06-05 5 Jul-1B-2000 04:31 pm From-OFFICE INFORWITION PRACTICES 180855814 1 T-367 P.OOT/008 F-322 The purpose of the notice and agenda provisions i to give the public the opportunity to exercise its right to know and to scrutiny a and participate in the formation and conduct of public policy. ~ Haw. Re'v'. t. 92-1 aed 92-8 (199$); Ka~pu v. Aloha Tower Dev. Coro., 74 Haw. 365, 384, 84 P.2d 882 (1993) (3uashine Law ensures public access to open meetings sad an opp rtunity to be heard). Given this purpose, O1P interprets section 92-7(a) to require t the agenda describe the matter that the board intends to consider with sufficien detail to allow a member of the public to understand what the board intends to con der at the meeting and to decide whether or not to participate in the meeting. Se Haw. Rev. Stet. § 92-1; Op. Att'y den. No. 85-2 (Haw. 1985)10 (Sunshine Law provis ons must be liberally construed to favor public scrutiny and participation; age da must list specific items or matters; general phrases such as `~mfinished businea "and "sew business" do not comply with the law). For an agenda item that is anticipated to be disc ssed in an executive meeting (from which the public may properly be exclude ),11 OIP advises that the agenda should specify the items to be considered genera ly, but in as much detail as possible to allow a third party to determine the applicab 'ty of the claimed executive meeting purpose without defeating the lawful ose for which the meeting is being held. Sgg Haw. Rev. Stet. § 92-1(provi 'ons shall be strictly construed against closed meetings); Haw. Rev. Stet. 2-7(a) and -9(b) (executive meeting minutes maybe witltlteld so long as their publi tion would defeat the lawiiil purpose of the executive meeting) (1888)•12 Such a description will meet the statute's express notice requirements, noted above, aad s consistent with the policies underlying the executive meeting provisions an the Sunshine Law in general. egg j~, to The Office of the Attorney General was charg with administration of the Sunshine Law vnti11998. „ The Sunshine Law's executive meeting provisi s provide exceptions to the open meetings requirements for certain issues that may req a private deliberation; however, these narrowly defined exceptions must be strictly onetrued against closed meetings. a~fl Haw. Rev. Scat. 92-5 (Supp. 2005) sad -1; also H. Stand. Comm. Rep. No. 485, 8th Lea., 1976 Reg. Sass., Haw. H..I. 1183 (197b) ('°i' preserve the sanctity of certain matters-suoh as personnel matters, labor negotiatio and wnsultation with attoraey~that must of necessity require private deliberatio ,this bill excludes 'executive meetings' from the open meeting requirement.°). ~ See Haw. Rev. Stet. § 1-13 (1993) ("Laws in p ' materia, or upon the name subject matter, shall be construed with reference to each ."Y, State v. Keawe, 108 P.Sd 304 (Haw. 2005) (statutory language must be :sad in the co ext of the entire statute and consistent with "the reason and spirit of the law (quo ' Haw. Rev. $tat. § 1-15(2) (1993)); Op. Att'y Gen. No. 94-1 (Haw. 1994) (readfeg aectio 92-5(aX2) and 92-9 together to preclude commission members from disclosing matters ~ naistent with section 92- 5(ax2)for as long as disclosure would defeat the purpose of c evening the executive meeting). OIP Op. Ltr. No. 0605 6 Ju1-10-2006 04:31 pa Fran-0FFICE INFORIJATION PRACTICES 1806686142 T-86T P.008/008 F-822 Because use of generic "executive session" entries on s board's agendas would provide no notice of the item being considered or the puYpose for which the executive meeting is being held, OIP finds that use of such entries would not comply with the Sunshine Law. Right to,B~jy~ Snit ~I A final action taken in violation of the Sunshine I1aw's open meetings and notice requirements maybe voided by a court upon proo~ of violation. Haw. Rev. Stat. §92F-11. A lawsuit to void a final action must be comet nced within ninety days of the action. ~ In addition, any person may file a lawsuit to seeking an i~junctian to require compliance with or preventing violations of the Sunshine Law or to determine the 3unahine Law's applicability to discussions or decisions of the public body. Haw. Rev. Stat. § 92-12(c) (1993). The court may order payment of reasonable attorney fees and costs to the prevailing party is such a lawsuit. OFFICE OF INFORMATION PRACTICES a+ Cathy L. akaae StaffAttorney APPRO'V'ED: Leslie F3. Kondo Director OIP Op. Ltr. No. 08-06 7 I