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HomeMy WebLinkAboutCOM 0764.001 1996-1998 • 46 D i-.N9 4 %'..9 IL BENJAMIN J. CAYETANO t. MARGERY S. BRONSTER GOVERNOR S ATTORNEY GENERAL p ~`le,G nae JOHN W. ANDERSON FIRST DEPUTY ATTORNEY GENEPAI. STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL 425 QUEEN STREET qq RECEIVED j HONOLULU, HAWAII 96813 A•~~l (808) 586-1500 Dc" my- February 27, 1998 my Coundl By Facsimile and U.S. Mail The Honorable James Y. Arakaki Chairperson & Presiding Officer Hawaii county Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Arakaki: Re: Briefing by Public Safety Director on Possible Kau Correctional Facility On Thursday, February 19, 1998, we received an inquiry from a member of the Big Island's press corp as to whether members of the Hawaii County Council had violated the Sunshine Law by attending a briefing with Keith Kaneshiro, the State's Director of Public Safety, about the possibility of locating a correctional facility at Kau. More specifically, we were asked if the Hawaii County Council members in attendance at that briefing had violated the Sunshine Law because notice of the briefing had not been made six days before the briefing, and the briefing was not open to the public. We were also informed that the County of Hawaii's Office of the Corporation Counsel declined to respond or comment when the Sunshine Law question was posed to him. We did not respond directly to the journalist's question, explaining that we were not aware of the situation, and would need information about the occurrence before we would be able to assess for legality. We also explained that the Attorney General has previously conceded that under certain specified conditions, i.e., when members neither interact with each other or the presenter, presentations may be made to multiple members of a board privately, and without six days notice of the presentation, without violating the Sunshine Law. However, as the journalist who inquired noted and we confirmed, this is a practice we do not encourage because the necessity to ensure one-way communication only, almost always generates skepticism from the media and interested members of the public as to whether the requirement was observed. Since the journalist's inquiry, we have secured the following information. It is not clear whether Mr. Kaneshiro asked to brief the Council on the Governor's proposal to build a correctional facility at Kau, or the Council, through one of its members, asked to be briefed on the matter. We understand, however, that Mr. Kaneshiro did meet with you and at least six other t;3~ ?Ia ~ V I11Ie lie. S-T A t^xs trace _.,MAR_.0.3 1999 The Honorable James Y. Arakaki February 27, 1998 Page 2 council members, and at least one staff person, on Thursday, February 19, 1998. We understand further that (1) The members attending the briefing went into and left the room with Mr. Kaneshiro, (2) While the door to the room was closed the members were not aware of anyone else's interest in being present and would have had no objection to allowing the media or the public into the room, (3) The members believed Mr. Kaneshiro was providing them with information that was available generally, (4) The members asked a few questions of Mr. Kaneshiro but did not otherwise interact with each other or debate any point presented, (5) You were informed on the preceding Monday or Tuesday (February 17 or 18, 1998) that Mr. Kaneshiro, would be visiting the Big Island on Thursday, and arrangements were made for him to make his presentation while he was there at that time, (6) The members in attendance did not believe that the Sunshine Law applied to the proceeding because Mr. Kaneshiro was providing general information and the proposed correctional facility at Kau is a state, rather than a county, project. Haw. Rev. Stat. § 92-1 defines the term "meeting" as follows: "Meeting" means the convening of a board for which a quorum is required in order to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power. Under the Sunshine Law, board members can decide or deliberate upon a matter that constitutes board business, i.e., have a "meeting," only after giving 6 days prior notice of that meeting to the public, and allowing the public to attend and participate in the limited ways specified in the law. Courts in other jurisdictions differ as to when a board begins "deliberating." However, given the Legislature's declaration in Haw. Rev. Stat. § 92-1 that "it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible," this Attorney General and her predecessors have construed and advised state boards that, absent a situation which comes within on of the Sunshine Law's express exceptions, board members can decide or deliberate upon a The Honorable James Y. Arakaki February 27, 1998 Page 3 matter of board business only at a duly noticed public meeting of the board. We have also advised that when more than one board member attends a gathering, including seminars, presentations initiated and organized by other public of private entities or individuals, at which topics relating to matters over which the members' board has "supervision, control, jurisdiction, or advisory power," they cannot speak directly to each other. We have also advised that to avoid raising any question as to whether "deliberations" have begun, communication should be limited to one-way presentations by the non-board member to board members only, with no reaction to what the non- board member presents within earshot of another board member. We are writing this letter because we believe it advisable to make you aware of the reporter's concern and our assessment of whether the Council members attending Mr. Kaneshiro's briefing violated the Sunshine Law. Given our understanding that Mr. Kaneshiro and Council members engaged in discussions about a proposed state correctional facility at Kau, if the proposed state correctional facility implicates matters over which the Council has jurisdiction or control, then we would have to conclude that the Sunshine Law had literally been violated because the public was not given notice of the briefing, and the meeting was not accessible to the public. Although we can point to instances in the past when "state projects" have become "the business" of a county council because of the state project's impact upon matters clearly within the councils' jurisdiction and control, we cannot say in this instance that the proposed correctional facility is necessarily board business today. We nonetheless believe it is valuable to share the Attorney General's perspective on the Sunshine Law with you and your fellow members. We also have expedited this response in order to reassure you and your colleagues that your attendance at the Senate Judiciary Committee's hearing on the proposed facility tomorrow in and of itself is not violative of the Sunshine Law. You need to be aware, however, that we have concluded that the Sunshine Law is not implicated in this case, because of the position we understand the Council's members have taken that the correctional facility is a state project and, thus, beyond the jurisdiction and control of the Council. Further, because we have previously advised the Legislature that appearances by more than one board member at a legislative hearing may be perceived or construed in a court challenge to constitute a Sunshine Law violation, members attending the Committee's hearing tomorrow may wish to avoid both communicating directly with other members about the proposed prison or responding to comments or testimony made or presented by the senators or others within earshot of other members. Because the chairpersons of the Senate Judiciary Committee sent a The Honorable James Y. Arakaki February 27, 1998 Page 4 memorandum to you citing a possible Sunshine Law problem, we are sending a copy of this letter to them, as well as to Richard Wurdeman, the County's Corporation Counsel. Very truly, yours, a Charleen M. Aina Deputy Attorney General A) - P OVED: Margery S. Bronster Attorney General c: The Honorable Avery Chumbley/The Honorable Matt Matsunaga The Honorable Richard D. Wurdeman