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Home My WebLink AboutCOM 0439.004 2008-2010 J Yosh*lmoto; 0 2t N r Council Chair j N WHT v. County Council of the County of Hawaii 1. Email from Corporation Counsel -July 20, 2009 2. Email from Corporation Counsel -June 19, 2009 3. County's Memo in Opposition to WHT's Motion for TRO Comm. Na Ref. Ta; Ref. ware _,j 2 00 0 0 Ashida, Lincoln From: Ashida, Lincoln Sent: Monday, July 20, 2009 9:49 PM To: Yoshimoto, J; Ikeda, Donald; Onishi, Dennis; Yagong, Dominic; Naeole, Emily; Enriques, Guy; Hoffmann, Pete; Ford, Brenda; Greenwell, Kelly Cc: Rodillas, Martha; Garson, Kathy; Kamelamela, Joseph; Goodenow, Kenneth; Hookano, Levi Subject: Update on WHT v. County Council of the County of Hawaii Attachments: 07-20-09 CoH's Memorandum of Law in Opposition to Plaintiff WHT's Motion for TRO and Preliminary Injuction Memorandum of Law Affidavit of J Yoshimot.pdf Dear Council Members, Greetings. I hope this email finds all of you well. I wanted to provide you some documents and background information on the lawsuit filed by the West Hawai'i Today prior to our briefing scheduled for this Wednesday in Kona. As ever, if you have any questions or concerns, please email or call me privately. Please do not "reply to all" on this email since we wish to avoid a Sunshine Law violation. This email is intended to supplement my earlier email sent to all of you individually on June 19, 2009. Please review it carefully as well as the present email. 1. How did OIP get involved in this matter, and what is their role? After the Council meeting on June 16, 2009, the State of Hawai'i Office of Information Practices received a number of complaints concerning the alleged Sunshine Law violations committed by the Council and its members. OIP conducts investigations of complaints to determine whether a Sunshine Law violation occurred and notifies the complainant of their remedies under the law. OIP's opinions are advisory only; they do not mandate a government agency follow their advice. The investigation of the present complaints remains ongoing by OR OIP sought the assistance of our office in providing information and argument. As an administrative review agency, OIP routinely requests government attorneys to provide argument on behalf of their clients as was done in this case. 2. Were the actions of the Council in placing their contacts on the record on June 16 the appropriate thing to do? Yes. Placing the contacts Council members had with one another on the record as was done on June 16 after accusations of a Sunshine Law violation was the proper thing to do. We believe OIP will similarly conclude that such efforts to mitigate any harm to the public were appropriate under the circumstances. It was clear in our mind that any Sunshine Law violation was inadvertent, and the product of Council members not knowing how many other Council members had been spoken to. Since leadership reorganizations allow up to four board members to communicate (as opposed to the customary "two member rule"), this often presents difficulties for board members. Setting aside the resolutions that passed was also a possible option. However under the circumstances given what was apparently an inadvertent Sunshine Law violation, an attempt to preserve the legal integrity of the action passed by a majority vote of the Council was pursued. t After the contacts of Council mOmbers were placed on the record, theJCouncil moved forward on July 7 and 8 with the reorganized leadership. Under our laws, any private lawsuit must be filed within 90 days of OIP's opinion letter. Had OIP filed a letter, upon the passing of 90 days, the.Council reorganization would have been deemed non-reviewable. If events had unfolded this way, the reorganization would stand and be insulated from legal challenge. 3. How does the WHT lawsuit change things? The filing of the WHT lawsuit dramatically changes things. The lawsuit essentially seeks three nonmonetary things: 1. A finding by the Court that the Council violated the Sunshine Law; 2. The invalidation of the reorganization; and 3. The invalidation of all post-reorganization actions taken by the Council. The motion for the TRO more recently filed seeks an immediate injunction (order) preventing the Council from transacting any business based on their reorganized leadership. It does not seek to prevent the Council from acting in its pre-reorganized state (with the former leadership in place). 4. Who does Corporation Counsel represent? This seemingly obvious question requires candid discussion to ensure each and every one of you understands the role our office plays and the limitations of our legal service. Simply put, Corporation Counsel represents the County of Hawai'i (the entity that can sue or be sued) and the Council as an organizational client. Corporation Counsel does not represent just the majority (or minority) members, or just some of the Council members, or any Council member in their individual capacity. In fact, Corporation Counsel does not represent the personal interest of any Council member. Since each of you were sued in your official (as opposed to individual) capacities, this is not problematic since it is the County that is being sued, and not you individually. However it is important each of you understand the scope of our representation. 5. The difference between "personal views" and "personal interest." Each of you must examine whether you have just a "personal view" regarding the reorganization, or a "personal interest." The difference may best be described as follows: You may not personally like the reorganization, but you have no vested personal interest in it. That mean you have a personal view, but no personal interest. Compare this with the situation where you do have a `personal interest,-" for example, if the chairmanship of a particular committee was viewed as an asset in a quest for other elected office. If this is the case, you may have a conflict of interest with respect to the outcome of the litigation. This does not mean you necessarily need your own attorney, but it is incumbent upon our office to advise you of this possible conflict, and if you still request our office represent you in your official capacity in this case, you need to let us know by responding to this email in the affirmative so that we may have you waive any conflict of interest. 6. What position is Corporation Counsel taking on behalf of the Council? The Corporation Counsel opposes the Motion for TRO as it would unduly impede the ability of the Council to move forward with its official business. Further as noted in our memorandum with the Court, even if an inadvertent Sunshine Law violation is found by the Court, it is not axiomatic that the Court will invalidate the reorganization or official actions taken since. 2 This was a position the Corpora[ on Counsel had to take since we has not met as a group to discuss the merits of the lawsuit or the future course for the Council. Conceding any of the claims would have constituted malpractice in the event the Council later determined that they should be vigorously opposed. We not only had a good faith basis to assert our defenses, but we believe our position is legally accurate. Unfortunately local media reports have suggested that a Sunshine Law violation immediately means the reorganization and actions taken by the Council are invalid. This is not true. If such were the case, we would not need a court hearing. The Court would have no discretion to determine what remedy is appropriate. It was suggested in one public posting on the internet that the Corporation Counsel should have immediately admitted a willful Sunshine Law violation by the Council. This is an utterly ridiculous assertion for the following reasons: (a) That admission would have immediately subjected each of you to the possibility of criminal prosecution; (b) That admission is not supported by the evidence; as we maintain, any violation is inadvertent; and (c) That admission would be malpractice by any attorney responsible for representing the Council. Finally, attorney fees and costs is a consideration. It is very likely the County will be responsible for the fees and costs incurred by WHT's attorney. For this reason, although we would not recommend foregoing a meritorious defense in favor of simply saving money, it nonetheless remains a concern. This means we need to proceed carefully in our decision-making, since needlessly prolonging the litigation will inevitably lead to a larger payout by the County. 7. What do I need to do now? The first thing to do is to ask yourself if you have any personal interest in the outcome of the reorganization lawsuit (as compared to a personal view). Remember, a "personal interest" is something more than a feeling, but something more tangible like a property interest. If you have a personal interest in the outcome, please notify me immediately. I will then privately discuss the matter with you and query whether there is a genuine conflict of interest, and if so whether a waiver of the conflict is appropriate. Read the enclosed Memorandum we submitted with the Court today. It outlines our arguments why the TRO should not be granted. Again, you may not all agree with all the views expressed in the pleading. However please know one of our primary concerns is to block any effort that would impede the ability of our Council to officially act. In our assessment, the arguments of the Plaintiff lack the necessary factual and legal basis to support the issuance of a temporary restraining order (or preliminary injunction). Our legal responses will generally be dictated by the official actions taken by the Council, so long as the actions were lawful. In this particular case, the reorganization resolutions passed by a majority vote. Since it did not appear there was a willful Sunshine Law violation, we sought to protect the integrity of the official action taken by the Council. You may have a lot of questions on Wednesday; I look forward to answering them for you. 8. What will happen at our briefing on Wednesday? At the onset, it is recommended we conduct our discussion in open session. Unlike lawsuits that seek large sums of money, this lawsuit is styled as an action for declaratory relief. Further, a 3 significant portion of the facts h ve already played out in the public domain. Holding this discussion in open session is a good first step towards restoring the transparency of the Council that may have been tarnished as a result of the recent event. If asked what the likelihood of prevailing (or losing) on the merits of the lawsuit, the honest answer is "No one knows for sure." Thus, my comments today and on Wednesday represent my best estimation of how events will unfold; no one can warrant with any degree of certainty a particular outcome. It is likely OIP will conclude that an inadvertent Sunshine Law violation occurred. Based on the present record, it is our belief the Court will similarly conclude any violation was inadvertent. This is where it gets tricky. What about the reorganization and actions taken since? At this point, the Council may elect to concede that the reorganization and/or the actions taken since are void. If that is the case, the Council "reverts" back to the leadership that was in place prior to June 16, 2009. The Council may then immediately move forward with any and all of its business. The Council may alternatively elect to contest each and every prayer for relief in the WHT lawsuit; this would mean asserting that the reorganization should stand, and that all subsequent actions of the Council were valid. If the Council does this, any official action taken by the Council is potentially at risk since the Court may later determine the reorganization and the actions taken since were invalid. If the maker(s) of the resolutions (or any other member for that matter) wishes to ensure the reorganization moves forward without legal challenge, the resolutions may be reintroduced. This is permissible since under the WHT argument, they were void from the very beginning so theoretically the Council did not take official action. This may be described as "good, cheap insurance." Successfully rehearing the resolutions would also make moot some of the claims made in the underlying WHT lawsuit. Finally, after examining any personal interest you may have, you may feel it necessary to discuss this matter privately with your own attorney. If this is the case, please let me know so we may recess this discussion until another day. We would not like to move forward unless each of you feels comfortable with the legal representation of our office, or in the alternative seeks and retains private counsel. The Council is a legislative body; each member has one vote, and our democracy demands that it is the will of the majority of votes on each particular issue that will carry official action. No matter what the decision of the Council, so long as the selected course is legally defensible and does not constitute a breach of our duty to the public we all serve, our office will vigorously defend the collective position of the Council. Later on Wednesday at 3:00 p.m., Judge Ronald Ibarra has scheduled a hearing on WHT's motion for TRO. I informed the Court I could not predict with any sense of confidence what the Council would decide in the morning with respect to whether to revert back to the pre-reorganizational leadership lineup, pursue a "do over" of the reorganization resolutions, or some other action. The direction the Council provides our office on Wednesday morning will dictate how we respond to the WHT's motion for a TRO later in the day. Again, please take a moment to review the earlier email sent to each of you individually, and to consider the questions posed to you above. Please email or call me at your earliest convenience if you believe there are any issues concerning the continued representation by our office. 4 Thank you, and I look forward tii seeing you all on Wednesday. O Lincoln Lincoln S. T. Ashida Corporation Counsel County of Hawai'i Hilo Lagoon Centre, Ste. 325 101 Aupuni Street Hilo, Hawaii 96720 Tel. (808) 961-8304, x118 FAX (808) 961-8622 Email: Lashida@co.hawaii.hi.us Website: www.co.hawaii.hi.us/cc/home.htm This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you have received this communication in error, please notify us immediately by email or telephone, and return the original message. Thank you! Hawaii County is an Equal Opportunity Provider and Employer Tracking: 5 Recipient Read `r Yoshimoto, J Read: 7/21/2009 8:12 AM Ikeda, Donald Onishi, Dennis Read: 7/21/2009 8:08 AM Yagong, Dominic Naeole, Emily Read: 7/2112009 7:01 AM Enriques, Guy Hoffmann, Pete Ford, Brenda Greenwell, Kelly Rodillas, Martha Read: 7/21/2009 8:00 AM Gerson, Kathy Read: 7/21/2009 8:06 AM Kamelamela, Joseph Read: 7/21/2009 12:54 AM Goodenow, Kenneth Hookano, Levi Read: 7/21/2009 7:57 AM Kramer, Diane Read: 7121/2009 8:46 AM 6 0 0 Ashida, Lincoln From: Ashida, Lincoln Sent: Friday, June 19, 2009 8:34 AM To: Yoshimoto, J Cc: Rodillas, Martha Subject: OIP Investigation Dear Council Member, This is to notify you that two separate complaints have been filed with the State of Hawai'i Office of Information Practices (OIP) concerning alleged violations of HawaiTs Sunshine Law (HRS Chapter 92) regarding the reorganization of the Council that occurred at your meeting on June 16, 2009. Please note that according to at least one communication received from OIP, the complaint is lodged against the Council as a board and entity, and not directed against any particular Council member. Nonetheless, since all nine of you comprise the board, the practical reality is the conduct of all nine members will be the corpus upon which the analysis will proceed and investigative findings will hinge. For this reason, I am obliged to inform you that pursuant to HRS Chapter 92, there is a possibility that one or all of you could face potential criminal prosecution if it is determined that your actions were willful or wanton as defined by our laws. I wish to stress at this time that based upon what I have observed and heard at the meeting on Tuesday, this is highly unlikely. However I am obliged under the Rules of Professional Responsibility to advise you of the full breadth of possible outcomes; specifically that willful violation of Chapter 92 constitutes a misdemeanor, which is punishable by a maximum term of incarceration of one year. A likely sentence upon conviction for a first-time offender is probation with limited or no jail. The offense also qualifies for a deferral pursuant to HRS Chapter 853 that would allow you to clear your record if certain criteria and conditions are met. If you wish to retain or hire independent counsel, please do so immediately and notify me. This would be in the event you believe there may be criminal exposure on your part. A criminal defense attorney may advise you that making any further statement may be against your penal interest. Please know that if this is the decision you make, our office may consider the actions taken by you to be outside the course and scope of your responsibility as a County officer, thereby not affording you the right to counsel from the County nor indemnification for any punitive damages that may be assessed against you in the future. I have been asked by the Council Chair to respond to OIP on behalf of the Council. In order for me to do this, I need to ensure I am clear on the series of events that preceded the reorganization that were divulged and made part of the record at your meeting on Tuesday. Please know that the extent of my knowledge of these contacts and events is limited to what was placed on the record this Tuesday, so your assistance in ensuring this is an accurate recitation would be appreciated. Please review the following and let me know whether there are any changes: 'Included below is just the portion pertaining to you. Each Council member was sent a separate email. This will protect against any Sunshine Law violation or allegation of collusion. 1. J Yoshimoto. Mr. Yoshimoto indicated he was approached by Mr. Enriques and Mr. Onishi within the past few weeks in order to discuss a reorganization of the Council. Mr. Yoshimoto indicated that on Wednesday, June 10, 2009, he met with Mr. Hoffmann to discuss the reorganization. i 0 0 Again, please review the above carefully to ensure it accurately reflects what was represented by you at the Council meeting on June 16, 2009. If there is any additional information, please let me know immediately so I may supplement the record that will be presented to OR Similarly, if you retain private counsel, please let me know immediately. OIP has urged the County to respond as soon as possible since time is of the essence. For this reason, a hard copy of this email will be delivered on Friday, June 19, 2009 to your offices in Hilo (facsimiles will be provided to Kona and Waimea). I am respectfully asking you respond to me no later than the close of business Monday, June 22, 2009. Thank you. Lincoln S. T. Ashida Corporation Counsel County of Hawai'i Hilo Lagoon Centre, Ste. 325 101 Aupuni Street Hilo, Hawai'i 96720 Tel. (808) 961-8304, x118 FAX (808) 961-8622 Email: Lashida@co.hawaii.hi.us Website: www.co.hawaii.hi.us/cc/home.htm This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you have received this communication in error, please notify us immediately by email or telephone, and return the original message. Thank you! Hawaii County is an Equal Opportunity Provider and Employer 2 0 0 LINCOLN S.T. ASHIDA 4478 Corporation Counsel County of Hawaii Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawai'i 96720 Tel. No. 961-8251 Fax No. 961-8622 Email:. lashida@co.hawaii.hi.us Attorney for Defendant County of Hawai'i IN THE CIRCUIT COURT OF THE THIRD CIRCUIT y I"`J STATE OF HAWAI'I^-= T' L r1l WEST HAWAII TODAY, Civ. No. 09-1-279K " r (Declaratory Judgment and g ju}i~tioe} ~ (Kona) n`Q;, r- Plaintiff, =mix y t; VS. DEFENDANT COUNTY OF HAWAI'I'S MEMORANDUM OF LAW IN COUNTY COUNCIL OF THE COUNTY OPPOSITION TO PLAINTIFF WEST OF HAWAII, J STANLEY YOSHIMOTO, HAWAII TODAY'S MOTION FOR DONALD IKEDA, GUY ENRIQUES, TEMPORARY RESTRAINING ORDER DENNIS "FRESH" ONISHI, EMILY I. AND PRELIMINARY INJUNCTION; NAEOLE, DOMINIC YAGONG, BRENDA MEMORANDUM OF LAW; AFFIDAVIT FORD, KELLY GREENWELL, PETE OF J YOSHIMOTO; DECLARATION OF HOFFMANN, in their official capacities as COUNSEL; EXHIBITS 1-11; members of the Hawaii County Council CERTIFICATE OF SERVICE of the County of Hawaii, JOHN DOES 1- 10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants. Hearing Set: June 22, 2009 Time: 3:00 PM It:IWHT v. CoH Honorable Ronald Ibarra 09.1-279K DEFENDANT COUNTY OF HAWAITS MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF WEST HAWAI TODAY'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [Type text] 0 0 The COUNTY OF HAWAI'I (hereinafter "County") by and through LINCOLN S. T. ASHIDA, Corporation Counsel for the County of Hawaii, respectfully submits the following Memorandum of Law in Opposition to Plaintiff West Hawaii Today's (hereinafter "WHT") Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiff WHT must establish (1) that they are likely to prevail on the merits of their claims, (2) the balance of irreparable damage favors the issuance of a temporary injunction, and (3) the public interest supports the granting of an injunction. 1. Plaintiff is unlikely to prevail on the merits on all claims asserted in its First Amended Complaint. Based on the present record any Sunshine Law (Chapter 92, Hawaii Revised Statutes, as amended) violation is inadvertent, and the extreme remedies of the invalidation of the Hawaii County Council's leadership reorganization and subsequent official action taken by the reorganized Council is not warranted. 2. Plaintiff has not and cannot establish that "irreparable damage" will occur if the injunction is not granted. In all practicality the roles of Council vice chair and committee chairs do not significantly affect the official actions of the Council. All nine Council members belong to all committees and are recognized by one vote, and committee chairs are unable to delay hearing of official County matters beyond one committee meeting. 3. The public interest is served in allowing the Council to move forward with its duties and official County business. The public interest asserted by Plaintiff with respect to acknowledgement of any Sunshine Law violation is properly addressed in the Plaintiffs underlying lawsuit and should not be the corpus of a 2 Q O request for a temporary restraining order and preliminary injunction. Based on the foregoing reasons, Plaintiffs instant Motion should be dismissed. However if the Court is inclined to grant Plaintiffs Motion, the County requests as Plaintiff has conceded that only actions taken by the reorganized Council and Council committees be subject to the injunction. The Council should not be prohibited from proceeding to hear further reorganization resolutions (or other official matters) if they do so with Council officers and committee chairs who were in place prior to June 16, 2009. This Memorandum is submitted pursuant to Rule 65, Hawai'i Rules of Civil Procedure, and is based on the Declaration of Counsel, attached hereto and made a part hereof, the enclosed authorities, citations and any and all evidence to be adduced at the hearing on this Motion. Dated: Hilo, Hawaii, July 20, 2009. Respectfully submitted, LINCOLN S.T. ASHIDA Corporation Counsel County of Hawai'i 3 O O IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII WEST HAWAI'l TODAY, Civ. No. 09-1-279K (Declaratory Judgment and Injunction) Plaintiff, (Kona) vs. COUNTY COUNCIL OF THE COUNTY MEMORANDUM OF LAW OF HAWAII, J STANLEY YOSHIMOTO, DONALD IKEDA, GUY ENRIQUES, DENNIS "FRESH" ONISHI, EMILY I. NAEOLE, DOMINIC YAGONG, BRENDA FORD, KELLY GREENWELL, PETE HOFFMANN, in their official capacities as members of the Hawaii County Council of the County of Hawaii, JOHN DOES 1- 10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants. MEMORANDUM OF LAW Plaintiffs motion is premised on the erroneous assumption there were willful violations of the State Sunshine Law committed by some members of the Hawai'i County Council concerning the recent reorganization of their leadership. Plaintiff further erroneously contends that if the Court finds a violation of the Sunshine Law (even inadvertent), that is tantamount to prevailing on the merits, and the first prong of the three-part test is satisfied. Plaintiffs further argument there will be "irreparable harm" in the event the injunction is not granted is similarly lacking in a factual basis and is speculative at best. Finally, public policy favors the Council moving forward instead of [Type text] O O being halted by the Court and thereby not addressing the official business required of the legislative body in our County. Background On June 16, 2009, the Council was scheduled to hear three separate resolutions seeking to reorganize the future leadership of the Council and its committees. Exhibit 1 is Resolution 200-09, Exhibit 2 is Resolution 201-09, and Exhibit 3 is Resolution 202-09. After the hearing of public testimony and upon further discussion by the Council, questions arose whether there had been violation(s) of the Sunshine Law since it appeared more than four members of the Council had discussed the proposed reorganization at different times.' When County Clerk Kenny Goodenow and the Corporation Counsel were asked to assist and advise what action (if any) the Council should take based on this development, it was recommended each Council member place on the record the identity of any other Council member they had discussed the reorganization with. It appeared at the time, and the County maintains to date, that any violation was not nefarious or willful. Had it appeared the violations were willful, the immediate setting aside of any official action taken on the resolutions would have been appropriate. Sometime prior to the June 16, 2009 meeting, Council Members Guy Enriques and Dennis Onishi approached Council Chair J Yoshimoto, suggesting changes to the leadership of the Council and some of its committees. This interaction was permitted since the Sunshine Law allows up to four members to communicate on leadership HRS Section 92-2.5 provides "Discussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board's officers may be conducted in private without limitation or subsequent reporting." For purposes of the nine-member Council, this means up to four members may legally discuss leadership reorganizations. 5 0 0 issues. On or about June 10, 2009, Mr. Yoshimoto traveled to Waimea and met with Council Member Pete Hoffmann to discuss the reorganization. Unbeknownst to Mr. Yoshimoto, Mr. Onishi on the same day (June 10) attempted to contact Council Member Kelly Greenwell. However Mr. Onishi was not able to reach Mr. Greenwell and did not discuss the resolutions with him. At this point, all interactions were still permitted, since the total number of Council members who had discussed the reorganization was four. On Thursday, June 11, 2009, upon finding out about the proposed resolutions, Council Member Brenda Ford telephonically contacted Mr. Hoffmann. Ms. Ford also telephonically contacted Mr. Greenwell and Council Member Dominic Yagong. Mr. Onishi contacted Mr. Greenwell on Friday, June 12, 2009. The State of Hawai'i Office of Information Practices (hereinafter "OIP") received multiple complaints that the Council had violated the Sunshine Law. Enclosed are the three complaints sent to Corporation Counsel by OIP. Exhibit 4 is a complaint filed by James Weatherford. Exhibit 5 is a complaint filed by Plaintiff. Exhibits 6 and 7 are complaints filed by Council Member Brenda Ford. Exhibit S is a copy of the written response sent to OIP by the Corporation Counsel. Prior to the OIP completing their investigation and issuing written findings, the present lawsuit ensued. The CouncY's actions in placing their contacts on the record was consistent with stood public policy, and consistent with previous auidance from 01P Instead of retreating into recess or deferring further discussion on the alleged Sunshine Law violations, the Council took the affirmative step of placing their contacts 6 0 0 on the record in an effort to mitigate any harm done to the public. This action was consistent with the public policy favoring disclosure of any inadvertent violation, and efforts towards seeking a cure. In fact, in previous instances involving the County Council, this was the action recommended by the former leadership of OR Exhibit 9 is copy of a correspondence with OR concerning an inadvertent Sunshine Law violation from 2007 and discussion of the steps taken by the Council in attempting to mitigate any harm to the public. When this matter was placed on the public record at a meeting of the Council on February 7, 2007, coincidentally former OIP Executive Director Leslie Kondo was present and participating in a discussion with the Council concerning the Sunshine Law. The following exchange between Mr. Kondo and the Council took place: MS. FORD: Yeah, I do have a question. My Legislative Assistant sent an email from her home computer on her personal time over a weekend and included blind copies of this to about 700 people and, unfortunately, forgot to scrub her list. And so, some Council Members and/or their staff received the email. I've been told that since I can't personally do this from my home computer, I wanted to find out if the same restrictions-Sunshine Law restrictions-that apply to me both at work and at home, apply to our staff. MR. KONDO: Yeah, I'm familiar with the issue you're raising because I communicated with the Corporation Counsel about that and I thought his advice to you and to your Assistant was appropriate advice, which really was to- MS. FORD: Appropriate? MR. KONDO: Appropriate, yes. I think it was a very- MS. FORD: Okay. MR. KONDO: It was a very cautious approach that I thought was conservative approach. I thought was appropriate. MS. FORD: Okay. MR. KONDO: And to let everyone else know, I think that the advice was that it be 7 o ,o disclosed, that this happened inadvertent. I think that if the issue had been something that someone wanted us to-OIP to look at a little closer, I think that we would have looked at whether or not that person was doing it at your request, on behalf of you, whether it was expressed, or you would imply to her to solicit support. We would have looked at those kind of issues because I think, unlike the Council Member, I think a staff member probably can act as a private citizen, can probably remove his or her hat and do things in a different capacity. `Cause I understood from the communication that she had previously in a different- MS. FORD: Lifetime. MR. KONDO: Had been involved in the issue prior to her becoming part of your staff. So, I think that there could have been other issues that we would have looked at that probably would have, or might have said that, that situation was okay. But given the general question that was presented to us and given the general advice that the Corporation Counsel provided, I thought that was a very prudent course of action because it was a very conservative approach that provided as much disclosure about the issue as possible. MS. FORD: All right, thank you. This is the exact course followed by the Council in the present case. When confronted with the possibility there had been a Sunshine Law violation, Council members were asked to place on the record for the benefit of the public who they spoke with concerning the proposed reorganization. The willingness of the Council members to come forward and report their inadvertent contacts is evidence of the lack of willfulness of any violation. Plaintiff has not demonstrated they are likely to prevail on the merits of all claims In their First Amended Complaint, Plaintiff seeks inter alia a declaration by the Court that the Council committed a Sunshine Law violation, invalidation of the reorganization, and invalidation of all official action taken by the Council after the reorganization on June 16, 2009. In order for Plaintiff to prevail on each of the sought remedies, the County submits there must be a determination of a willful violation and 8 0 0 resulting harm to the public. The record so far does not support a finding of a willful violation by any Council member. In fact, any violation found appears to be inadvertent. Referencing the June 10 meeting between Mr. Yoshimoto and Mr. Hoffmann, Mr. Hoffmann alleges Mr. Yoshimoto said he "had five votes" or words to that effect. Mr. Yoshimoto denies making this statement. An affidavit by Mr. Yoshimoto is enclosed and is necessary in order to establish that no willful violation occurred. For purposes of the present analysis, Mr. Yoshimoto may very well have had the five votes without even speaking to Council Members Donald Ikeda and Emily Nae'ole. When presented with an opportunity on June 16 to reveal any contact they had with other Council members concerning the reorganization, both Council members indicated they had no contact with anyone. This was further supported by the collective statements of the other Council members who indicated they had not contacted either Mr. Ikeda or Ms. Nae'ole. This is consistent since Mr. Ikeda and Ms. Nae'ole have historically supported the present majority with respect to their leadership effort. The presumption that Mr. Yoshimoto contacted both Mr. Ikeda and Ms. Nae'ole concerning the reorganization prior to June 16 is not supported in the record; it cannot provide the basis for Plaintiffs claim that they are likely to prevail on the merits. Further, by virtue of the Council's own rules of procedure, the public is not harmed by the Council taking further official action. The duties of the Council chair and committee chairs appear ceremonial at best. Exhibit 10 is a copy of the Rules of Procedure of the Council of the County of Hawai'i (adopted December 1, 2008). Of particular note are Rules 4-6, which outline the roles and responsibilities of Council officers and committee chairs. These rules evidence all nine members of the Council 9 0 0 have their one vote, and committee chairs have no greater power than to delay hearing of a matter beyond a single meeting. This position is further buttressed by the enclosed OIP opinion (Exhibit 11) concerning the Hawai'i County Council's reorganization in 2005 and the amendment of its agenda. In that opinion, OR made clear the reorganization of leadership with respect to the Council chair is not a matter that would invalidate Council action in amending the agenda on the day of the meeting. OR stated in pertinent part as follows: The Council Chair has no greater voting rights than the other members of the Council. (Citation omitted). Although the Council Chair may, through the direction of the administrative functions of the Council Chair, exercise some discretionary power over the business of the Council, we do not find that power to be significant. (Footnote omitted). Further, although we recognize that serving as the primary spokesman for the Council is a significant and important task, we believe that if that role is properly performed it is irrelevant which of the members of the Council is performing that role. Given our belief that the role of Council Chair does not afford that individual greater control than other council members over the actions of the Council, we do not believe that consideration of the leadership of the Council is of reasonably major importance, nor do we believe that the selection of new Council Chair will affect a significant number of persons. (Citation omitted). Accordingly, it is our opinion that the Council did not violate the Sunshine Law by amending the agenda of the April 6 (2005) meeting to add the organization of the Council as an agenda item for that meeting. Plaintiff has not demonstrated "irreparable damage" will occur if the Council is allowed to move forward with its work As the above-cited Council rules of procedure dictate, each Council member belongs to every committee and is entitled to one vote. The belief that committee chairmanship conveys greater authority vis-6-vis other Council members is a misnomer. Had the Council passed a reorganization resolution that decreased the number of committee members so that all members did not sit on all committees, or had the Council granted committee chairs greater power or authority (allowing them to withhold 10 0 0 agendizing committee business indefinitely instead of just one meeting), Plaintiffs would have had a more articulable factual basis for their assertions of "irreparable harm." However such is not the case here. Plaintiffs contention the reorganization is void ab initio presupposes a determination of a willful violation of the Sunshine Law that is not supported by the record. In fact, HRS Section 92-11 provides as follows (emphasis supplied): Any final action taken in violation of sections 92-3 and 92-7 may be voidable upon proof of violation. A suit to avoid any final action shall be commenced within ninety days of the action. Courts in other jurisdictions that have open meeting laws with similar voidability provisions concur. See e.g., Love Terminal Partners v. City of Dallas, 256 S.W.3d 893 (Tex.App: Dallas 2008) (Pre-agreement conduct between various municipal officials including the council that were in violation of Texas' open meetings law did not render the resulting agreement void, but rather potentially voidable). The County takes no issue with the authority found in the Hawai'i cases cited by Plaintiff, particularly Right to Know Committee v. City Council, City and County of Honolulu, 117 Hawai'i 1, 175 P.3d 111 (Hawai'i App. 2007). In that case, the Intermediate Court of Appeals of Hawai'i ratified the position taken by OIP that serial "one on one" communications by Honolulu City Council members circumvented the letter and spirit of the Sunshine Law. However the major distinction in Right to Know Committee v. City Council, City and County of Honolulu, supra, and the present case before this Court is the willfulness of the board members involved. In the Honolulu case, city council members forged ahead with their plans for reorganization despite OIP's caution to the contrary. Unlike II ,O Q the Honolulu case, Hawai'i County Council members were well aware of the prohibition against serial communications, and proceeded as cautiously as possible and not in reckless disregard of the requirements of the law. When the inadvertent violations were discovered, they affirmatively took steps to mitigate the harm to the public by immediately placing on the record their contacts with one another. Public Policy favors the Council moving forward Plaintiffs contention that public policy is best served by halting the business of the Council is not supported by the underlying facts. Absent a willful violation and a determination that irreparable damage will accrue to the public if the Council moves forward, the record does not support this Court finding that the injunction sought by Plaintiff is necessary. Rule 65(d), Hawaii Rules of Civil Procedure sets forth the standard requirements for the.form of injunctions and restraining orders, and provides as follows: Form and scope of injunction or restraining order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Plaintiff cannot bootstrap a temporary restraining order based on the sole finding by this Court they are likely to prevail on the merits of the Sunshine Law violation issue alone. As discussed infra, even if this Court is to find an inadvertent Sunshine Law violation, it is not axiomatic or required that the reorganization or the actions taken subsequent are deemed void by the Court. Based on the present record and the requirements of the above-cited Rule 65(d), Plaintiff has not established the minimum 12 o 0 basis for the granting of a temporary restraining order. If the Court is Inclined to order an injunction, such action should be limited to actions taken by the Post-reorganized Council and should not limit the Council's ability to move forward with a orooerly notice reorganization Plaintiff concedes in their instant Motion filed with the Court that the Council may nonetheless proceed to organize their leadership if they take this action with Council officers and committee chairs who were in place prior to June 16, 2009. Plaintiff states the following at Page 5 of their Memorandum in Support of Motion attached to the present Motion (emphasis supplied): In this case, Plaintiffs argue that the status quo is the status in which the council was organized prior to the illegal reorganization. A possible remedy would be to either refrain from further acts inconsistent with state law, or to return to the status quo prior to the vote. In a column published in the West Hawai'i Today on July 17, 2009 by Reed Flickinger, who upon information and belief serves as Editor of Plaintiff West Hawai'i Today, the following representations are made (emphasis supplied): Wednesday this newspaper's attorney, Robert D.S. Kim, amended our complaint in 3rd Circuit Court and Thursday submitted a request for an injunction and temporary restraining order against the county that seeks to bar the council from proceeding at its peril under an illegally organized structure from considering new legislation until this issue is resolved or until the council legally reorganizes in compliance with state law protecting the public's right to know. s t r s s West Hawaii Today does not want to stop county government. Quite to the contrary, as we understand the need for government and the framework of laws under which we live and function. We only seek to stop the countyfrom violating those same laws that are intended to govern all of our society. Our injunction seeks to compel the county to obey the law. It seeks to resolve one wrong, before more potentially invalid votes are taken and public funds consumed needlessly in the process. Our suit seeks to remedy what was done and to allow the court to determine whether the 13 0 0 county's actions were indeed "inadvertent," as the county claims, or done by intent, as it may appear and any consequences of those actions. The County agrees with Plaintiff that stopping of County government is not in the best interests of the public we serve. In order for Plaintiff to prevail in the instant Motion, all three prongs of the TRO test must be met to the satisfaction of the Court. The County submits Plaintiff has not demonstrated they are likely to prevail on the merits, that there will be irreparable harm if the injunction is not granted, or that it is in the public interest for Council activity to come to halt. However in the event the Court is inclined to grant Plaintiffs Motion, the County respectfully requests the order be tailored to make clear the Council may proceed to reorganize their leadership if they so chose, as this is conceded by Plaintiffs. The Corporation Counsel is scheduled to meet with the Council on the morning of June 22, 2009, prior to the hearing on the instant Motion. It is anticipated the Council may elect to schedule a future meeting to hear the leadership resolutions with Council officers and committee chairs in place prior to June 16, 2009. Conclusion Each member of the Hawai'i County Council is a dedicated public servant. With the multitude of issues and decisions facing them, inadvertent violations sometimes unfortunately occur. This is not an excuse, but an acknowledgement of the realities of the difficulties public servants have in meeting every single regulation found in the public sector. Whether there is a finding of a violation of the Sunshine Law and what remedy is appropriate will be determined by this Court when it hears the merits of Plaintiffs lawsuit. 14 0 0 However at present Plaintiff has failed to demonstrate they will prevail on the merits of all claims. They have failed to demonstrate that "irreparable harm" will accrue to the public in the event the Council is permitted to move forward with the people's business. They have failed to prove that it is good public policy for Council action to be halted at the present time. Plaintiffs allegations are speculative and lack a substantial factual basis. In fact it may be argued that unduly halting the Council from doing its work further aggravates the harm to the public as the Council will be restricted from passing necessary legislation for the benefit of the County and its residents. Based on the foregoing reasons and authorities, the County of Hawaii respectfully urges this Honorable Court deny Plaintiff West Hawai'i Today's Motion for Temporary Restraining Order and Preliminary Injunction. Dated: Hilo, Hawai'i, July 20, 2009. Respectfully submitted, LINCOLN S. T. ASHIDA Corporation Counsel County of Hawai'i 15 a o IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII WEST HAWAII TODAY, Civ. No. 09-1-279K (Declaratory Judgment and Injunction) Plaintiff, (Kona) VS. COUNTY COUNCIL OF THE COUNTY AFFIDAVIT OF J YOSHIMOTO OF HAWAII, J STANLEY YOSHIMOTO, DONALD IKEDA, GUY ENRIQUES, DENNIS "FRESH" ONISHI, EMILY I. NAEOLE, DOMINIC YAGONG, BRENDA FORD, KELLY GREENWELL, PETE HOFFMANN, in their official capacities as members of the Hawai'i County Council of the County of Hawaii, JOHN DOES 1- 10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants. AFFIDAVIT OF J YOSHIMOTO COUNTY OF HAWAII ) SS: STATE OF HAWAII ) I, J Yoshimoto, Council Member representing District 3 in the County of Hawaii, State of Hawaii, being duly sworn and under oath, do hereby solemnly swear and affirm to the following: 1. I am a resident of the County of Hawaii, State of Hawaii 2. 1 am a licensed attorney in the State of Hawaii 3. 1 am the Council member representing District 3, in the County of Hawaii, 0 0 State of Hawaii 4. 1 met with Pete Hoffmann at his Waimea office on June 10, 2009 for the purpose of discussing reorganization of the Council chairs. 5. At the June 10, 2009 meeting with Mr. Hoffmann, I specifically told Mr. Hoffmann that Council Member Onishi and Council member Enriques were each introducing resolutions that could change some Chair assignments. 6. At the June 10, 2009 meeting with Mr. Hoffmann, I cautioned him to not speak with other Council Members about this issue, because he was the fourth Council Member in the discussion, and he agreed. 7. The Complaint filed by the West Hawaii Today dated July 10, 2009, contains an allegation by Mr. Hoffmann that I apparently told Hoffmann that I "had five votes to make the measures pass" even without Hoffmann's support is completely and absolutely false. 8. 1 did not tell, suggest, imply, or infer to Mr. Hoffmann that I had five votes to pass the subject reorganization resolutions. Further affiant sayeth naught. Dated: Hilo, Hawai'i, July 2009. J Yb3hWOto ,}S,~u~bscribed and sworn to before me thisaday of July, 2009. U 1"IGGt.- Q • PtJ,f 11r,,. Martha A. Rodillas Notary Public, State of Hawaii My commission expires: 3/26/10 Notary Certification on Next Page 2 0 0 NOTARY CERTIFICATION Doc. Date: July,~Q 2009 No. of Pages: 3 Notary Third Circuit Name: Martha A. Rodillas Doc. Affidavit of J Yoshimoto Description: `P~uuuppO (Affidavit signed by J Yoshimoto re Civil No. 09-1- A RO s +86 A2 t' to -7 /2z/ 0 Notary Signature Date 3 Q O IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI'I WEST HAWAII TODAY, Civ. No. 09-1-279K (Declaratory Judgment and Injunction) Plaintiff, (Kona) VS. COUNTY COUNCIL OF THE COUNTY DECLARATION OF COUNSEL OF HAWAII, J STANLEY YOSHIMOTO, DONALD IKEDA, GUY ENRIQUES, DENNIS "FRESH" ONISHI, EMILY I. NAEOLE, DOMINIC YAGONG, BRENDA FORD, KELLY GREENWELL, PETE HOFFMANN, in their official capacities as members of the Hawaii County Council of the County of Hawaii, JOHN DOES 1- 10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants. DECLARATION OF COUNSEL 1. I, LINCOLN S. T. ASHIDA, am an attorney licensed to practice law in the State of Hawai'i, and serve as the Corporation Counsel for the County of Hawai'i; and 2. The exhibits enclosed and attached to the present memorandum are true and correct reproductions of the originals to the best of my information and belief. I hereby certify and affirm under penalty of law the foregoing is true and correct to the best of my information and belief. Dated: Hilo, Hawai'i, July 20, 2009. LINCOLN S. T. ASHIDA 16 0 0 COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 200 09 A RESOLUTION DESIGNATING THE COUNCIL VICE CHAIR BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that Emily I. Naeole is hereby declared the duly elected Vice Chair of the Council of the County of Hawaii effective June 16, 2009. BE IT FURTHER RESOLVED that Resolution No. 02-09 is hereby rescinded. Dated at Rona Hawaii, this 16thday of June 2009. INTRODUCED BY: CO CIL MEMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS FX Hilo, Hawaii ENRIQUES R FORD X I hereby certify that the foregoing RESOLUTION was by GREENWELL X the vote indicated to the right hereof adopted by the COUNCIL of the HOFFMANN Cuunt~ut'Haw:d'ion_ June 16, 2009 _ R IKEDA X NAEOLE X ATTEST: ONISHI R YAGONG X YOSHIMOTO X 5 4 0 0 Reference: C-401 COUNTY CLERK CHAIRPERSO PRESIDING OFFICER RESOLUTION NO. 200 09 A 0 0 COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 201 09 A RESOLUTION DESIGNATING THE CHAIRS AND VICE CHAIRS OF THE COUNTY COUNCIL'S STANDING COMMITTEES. WHEREAS, the Rules of Procedure and Organization of the Council of the County of Hawaii was established by the adoption of Resolution No. 04-09 on December 1, 2008; and WHEREAS, Rule No. 24, §5(a)(1)(A), of the Rules of Procedure and Organization of the Council of the County of Hawaii allows for organization of Council by resolution; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that, pursuant the Rules of Procedure and Organization of the Council of the County of Hawaii, the following members are hereby designated as Chair and Vice Chair of the stated committees: COMMITTEE CHAIR VICE CHAIR Public Works and Intergovernmental Relations Guy Enriques Kelly Greenwell Planning Donald Ikeda Guy Enriques Finance Dennis Onishi Donald Ikeda Food and Energy Sustainability Brenda Ford Pete Hoffmann Public Safety and Parks and Recreation Dominic Yagong Dennis Onishi Environmental Management Kelly Greenwell Brenda Ford Human Services and Economic Development Emily Naeole Dominic Yagong BE IT FURTHER RESOLVED that, pursuant to Rule No. 5 of the Rules of Procedure and Organization of the Council of the County of Hawaii, the Chair and all members of the Council shall be members of each of the above Committees. CVLIIDIT 7 . o ~ 0 BE IT FINALLY RESOLVED that Resolution Nos. 05-09, 06-09, 07-09, 08-09, 09-09, 10-09, and 11-09 are hereby rescinded. Dated at Kona Hawaii, this 16th day of June .1 2009. INTRODUCED BY: CI 'MBER, TY OF HAWAI`1 COUNTY COUNCIL ROLL CALL VOTE County of Hawaii AYES NOES ABS EX Hilo, Hawaii ENRIQUES X FORD X 1 hereby certify that the foregoing RESOLUTION was by GREENWELL X the vote indicated to the right hereof adopted by the COUNCIL of the HOFFMANN County of Hawaii on June 16, 2009 IKEDA R NAEOLE X ATTEST: ONISHI X YAGONG X YOSHIMOTO X 5 4 0 0 Reference: C-402 COUNTY CLERK CHAIRPERSO, PRESIDING OFFICER RESOLUTION NO. 201 09 2 0 0 OFFICE INFORMATION ONLY Meeting: June 16, 2009 - Council Meeting (161h Session) Action: Withdrawn by Council Member Onishi - June 16, 2009 Resolution 202-09/C-403 Re: cvuisit 2 0 0 COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 202 09 A RESOLUTION TO AMEND THE RULES OF PROCEDURE AND ORGANIZATION OF THE COUNCIL OF THE COUNTY OF HAWAII AND DESIGNATE THE CHAIR AND VICE CHAIR OF THE COUNTY COUNCIL'S STANDING COMMITTEES. WHEREAS, the Rules of Procedure and Organization of the Council of the County of Hawai'i governs the affairs of the council; and WHEREAS, the Rules of Procedure and Organization of the Council of the County of Hawai'i was adopted by the council via Resolution No. 04-09 on December, 1, 2008; and WHEREAS, Rule No. 6 governs the structure and scope of the Hawaii County Council's Standing Committees; and WHEREAS, the Council desires to reorganize the structure of its standing committees to consolidate the Human Services and Economic Development Committee into the Finance Committee, and the Food and Energy Sustainability Committee into the Environmental Management Committee; and WHEREAS, this proposed amendment to Rule No. 6, Standing Committees, is contained within the attached document labeled "Exhibit A" and indicated by Ramseyer format, whereby material to be deleted is bracketed and stricken through; material to be added is underlined; and WHEREAS, Rule No. 24, §5(a)(I XA), allows for the organization of Council by resolution; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that, pursuant the Rules of Procedure and Organization of the Council of the County of Hawaii, the following members are hereby designated as Chair and Vice Chair of the stated committees: COMMITTEE CHAIR VICE CHAIR Planning Donald Ikeda Guy Enriques Public Works and Intergovernmental Relations Guy Enriques Kelly Greenwell Finance Dennis Onishi Donald Ikeda 0 0 Public Safety and Parks and Recreation Emily Naeole Guy Enriques Environmental Management and Energy Sustainability Kelly Grecnwell Dennis Onishi BE IT FURTHER RESOLVED that the Rules of Procedure and Organization of the Council of the County of Hawaii, Rule No. 6, is hereby amended as indicated by the attached document labeled "Exhibit A". BE IT FURTHER RESOLVED that Resolution Nos. 05-09, 06-09,07-09,08-09, 09-09, 10-09, and 11-09 are hereby rescinded. BE IT FINALLY RESOLVED that the Rules of Procedure and Organization ofthe Council of the County of Hawaii, as amended, shall be transmitted in full to the County Clerk for reprographic purposes and dissemination to all appropriate parties. Dated at Hawaii, this day of 2009. INTRODUCED BY: COUNCIL MEMBER, COUNTY OF HAWAI'I COUNTY COUNCIL ROLL CALL VOTE County of Hawai'i AYES NOES ABS EX Hilo, Hawaii ENRIQUES FORD 1 herebv cenifv that the foregoing RESOLUTION was by GREENWELL the votc indicated to the' right hereof adopted by the COUNCIL of the HOFFMANN County of Hawaii on IKEDA NAEOLE ATTEST: ONISHI YAGONG YOSHIMOTO Reference: C-403 COUNTY CLERK CHAIRPERSON & PRESIDING OFFICER RESOLUTION NO. 20 2 0 0 EXHIBIT A RULE. NO. 6 STANDING COMMITTEES 1. There shall be [seYeA (7)] fib standing committees as follows: (a) Committee on Finance (b) Committee on Planning (c) Committee on Public Works and Intergovernmental Relations (d) Committee on Public Safety and Parks and Recreation (e) [ ] [(f)] Committee on Environmental Management and Energy Sustainability [(g) Gemmittee eFi Feed and ] The Chairpersons and Vice Chairpersons of each committee shall be determined by resolution. 2. The scope and responsibilities of the standing committees shall include, but not be limited to, the following: (a) Committee on Finance: (1) Matters related to auditing, budget, capital improvement projects, improvement districts, lease agreements, appropriations, general obligation and revenue bonds, taxes, intergovernmental revenues, licenses, fees, data systems, procurement policies, and personnel transactions. (2) Matters related to the establishment of the annual county operating and capital budgets, including the setting of real property tax rates. (3) Matters related to human services social service agencies and non-profit programs. (b) Committee on Planning: Matters related to public lands, general plan, community development plans, subdivision control, zoning, land use, infrastructure requirements, coastal zone management, forestry, historic sites and trails, cultural 3 0 0 resources, water and water development, street names and public access. (c) Committee on Public Works and Intergovernmental Relations: (1) Matters related to management of public facilities, building, fire, plumbing and related codes, dedication deeds, street and other public Improvement dedications, easements, cemeteries, highways, flood and drainage, public utilities, traffic control, sign regulations, and beautification. (2) Matters related to public transportation/mass transit. (3) Matters related to state and federal legislation, Hawai'i State Association of Counties, National Association of Counties, state/county overlapping functions, and federal, state and county agency relations. (d) Committee on Public Safety and Parks and Recreation: (1) Matters related to police and fire protection, civil defense, liquor control, animal control, and the prosecuting attomey. (2) Matters related to parks and recreation, youth activities, and elderly activities. . (e) [ . . Rem*prefit P?egraW.T.j Committee on Environmental Management: 4 0 0 (1) Matters related to the protection, preservation, and enhancement of the environment, management of solid and hazardous waste, wastewater, and recycling programs. (2) Matters related to food sustainability, solar energy. geothermal energy. wind. biomass, hydropower, and energy-efficient technologies for buildings. homes. transportation. and power systems. , 0 0 8085861412 14:17:23 06-18-2009 1~6 • t t ~11 ? l LINDA LINGLE STATE OF HAWAII - I Dove«a OFFICE OF THE LIEUTENANT GOVERNOR 'JANEf"-"'nNONA. A. OFFICE OF INFORMATION PRACTICES PAUL T.uV001 MA M S ft. w [ca NO 1 CAPITOL DISTRICT BUILDING 350 SOUTH HOTEL STREET, SUITE 107 HONOLULU. HAW41'I 96813 To opppn4r 8081 588.1400 FAX: 18081 S8e-1412 E-MAIL: ap®hawai.nov www. hawai.goWelp FAX TRANSMITTAL DATE: JUNE 18, 2009 NO. OF PAGES: 5 P&IOA 0 follow TO: J. Yoshimoto, Chair FAX: (808) 961.8912 Hawaii County Council FRONT: Jennifer Brooks, Staff Attorney (808) 586-1412 fax Office of Information P:acuces (808) 586-1400 phone RE: Request for Investigation (S EWES-P 09-9) Attached is a setter to J. Yoshimoto from Jennifer Z. Brooks dated June 18. 2009. ? Original it being mailed to you. XX Original will:VOi be mailed to you, unless requested. If there are any problems receiving this message, please contact.- CONTACT: DawnShirrabukaro PH. i%: 586-1400 WARNING: This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged or confidential. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. It you have received this communication in error, please notify us Immediately by telephone and return the original to us at the above address via the U.S. Posts) Service. Thank you. 0 0 8085861612 14:17.41 06-18-2009 2 5 ~ o i L.ei dJI: 1 U 1MM NA STATE OF HAWAII JAMB R. AIONA. JA, CFFICE OF THE LIEUTENANT GOVERNOlk., - - .,w T::A IILANA OFFICE OF INFORMATION PRACTICES NO. 1 CAMTOL DISTRICT BUILDING 750 SOUTH HOTEL STREET. SUITE 107 HONCLULU. HAWA1'196813 Telep1one: 16081 586.1400 FAX: 18081 586.1412 E-MAIL; mo®haweii.eev www.hmai.aowofo June 18, 2009 VLA FACSIMILE: (808) 961.8912 J. Yoshimoto, Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Re: Request for Investigation (S DIVES-P 09.9) Dear Chair Yoshimoto: The Office of Information Practices COIP") has received a complaint from Dr. James Weatherford, concerning the Hawaii County Council (the "Council"). Specifically, Dr. Weatherford asks whether serial communications involving the Council's agenda for June 16, 2009 violated part I of chapter 92, Hawaii Revised Statutes (the "Sunshine Law"). A copy of Dr. Weatherford's complaint is enclosed for your information. We ask for your assistance in our review of this complaint. Please provide us with a detailed explanation, including any relevant legal citations, setting forth the Council's position on this matter and any other information you deem relevant to this inquiry. We request that the Council provide this response to OIP no later than ten business days from receipt of this letter. Thank you for your attention to this matter. If you Nave any questions or would like to discuss this matter, please do not hesitate to contact the undersigned attorney. V truly ours. J nife . Br taff Attorney Enclosure cc: Dr. James Weatherford (wlo enclosure) 0 0 8085861412 14;18:02 06-18-2009 8:6 40 • James Weatherford To oip@hawaii.gov ® <gardengreen _dhawaiiantel.n et> cc C6/15Q009 12:08 PM bcc Subject Concern and request for investigation re Hawaii County Council ResoluJcns and Sunshine Law Mr Paul Sukyama, This is to request that your office investigate possible violations regarding the Sunshine Law. If your protocol so requires, you may consider this to be a formal complaint. Specifically the matter involves Resolutions 200-9, 201-09, and 202-09 on the Hawaii County Council Agenda for Tuesday, June 16, 2009. These Resolutions all involve "reorganization". This is an example of what the author of Resolution 202 (Mr Enriquez) had to say, when interviewed by Tiffany Edwards Hunt journalist (bigislandchronicle.com): "`4 only worked with four people. I originally talked with Fresh... we both wrote resolutions... We consulted with the Chair and I think Donald Ikeda..." http://www.bigislandchrenicle.com/?p=5723"wmore-5 723 Whatever I can do to cooperate with you in this matter, please do let me know. Thank you for your service to our community. James Weatherford, PhD PO Box 2017 Keaau, Hawaii 96749 808-982-5549 8085861412 O 14:18:17 06-18-2009 4.6 Htg Istano Lhromcle ) blob Ar e)) ***Commentary*** Proposed L0il Reorgaru... Page I of 14 Big Island Chronicle Slog with aloha for news and commentary • Horne • About Tiff ny EEdwards Hunt • 'Commentary*"* Proposed Council Reorganization Equated To Basketball Gamer, Rather Than A Coup d'etat 14 Jun 2009 i £ommentary Guy Enriques Regarding the pmpgpjj County Council reorrtanization on Tuesday, I just had a very insightful phone conversation with Guy Enriques. The councilman representing, Ka'u, Puna, and South Kona was coaching at a "kid's camp" as he spoke to me. Maybe that had something to do with the fact that he equated the pending reorganization to a basketball game rather than the coup d'itat it appears to be. Meanwhile, I've been playing phone tag with Pete Hoffmann, representing Waimea, Kohala, and Waikoloa, who Hilo Councilman Dennis "Fresh" Onishi is proposing to remove as vice chair and replace with Puna Councilwoman Emily Naeole. I've placed several calls to what I believe is the home of Dennis "Fresh" Onishi and have left so many messages, I said this morning it was the last time I would be calling because I'm beginning to feel like a stalker. Sure hope he's out of town because, if he is simply not returning my calls, that's concerning that he R Dennis may become the chair the County Council's two money-related committees: Finance and the Human Services and Economic Deve:opment Committees. Guy Enriques says he :s calling or the consolidation of the Finance and the Human Services and Economic Development Committees because both are menev--elated and belong under one committee. He believes Dennis "Fresh" Onishl should be the one to lead that commiree, well. because he should be given the chance to lead. Guy Enriques equated it to passing Dennis "Fresh" Onlshi the ball. The fact that he is proposing to step Dominic Yagor.g of his current chairmanship of the Finance Committee and Brenda Ford of her Public Works and Intergovernmental Relations Committee, well, that's basically like telling them it's time to get out of the game and sit on rile bench. It's interesting to me that Guy Enriques is proposing he take over the committee that Brenda Ford currently leads, having told me in our phone conversation that he thinks that the committee that deals with the Department of Public Works (over Finance. Planning, Police, Fire, Civil Defense and Parks and Recreation) is one of the most important positions. 'd0858616t2 O 14:18:46 06-18-2009 5'6 Big Island Chronicle a B1~~.4r e» ***Con=entuy*** Proposed t.*il Reorganiz... Page Z of 14 Here is a sampling of our conversation this morning: (After I asked him the circumstances that led to the resolution he has introduced) "It's very simple... When I decided to run for office, I had two concerns: Council being able to work together as a team. Not a lot of grumbling. We have a sense of respect. Teamwork. I'm a sports guy. Second, I have been unhappy with how the Council dealt with administration. Mot really working with one another. Those have been my two issues of concern. We are nine people. Onishi felt same way. When all nine of us got in, normally you have one or two people who want to be chair. You organize five guys and select the chair. Screw rest of four. That's the normal way of organization. For me and Fresh, we didn't it that We see it as a chance to work as a team by organizing that way. It was the first time that I know of that nine people got together and organized chair. Now we're trying to stay together as a team, by working together, having respect and building relationships. That's our goal. This is why I thought we might be able to better situation just went through (with the resolutions that have been introduced). We just went through real tough budget session. I'm a rookie guy. I had my eyes wide open. I have understanding of what is working as a team and what is not..." (As for how he came up with his resolution calling for a committee consolidation) "I only worked with four people. I originally talked with Fresh... we both wrote resolutions... We consulted with the Chair and I think Donald Ikeda..." (As for combining the Finance and Human Services and Economic Development Committees and pitching for Dennis "Fresh" Onishi to lead that committee) 1 think we needed a change in that department. Enough of us are not happy with issues. I have respect for Yagong. He's one of our senior guys. He's experienced. But he did some things that are not team work. A couple... I hate to talk about someone when they're not in my face, he wrote a letter (to owners of properties being leased by the county ca:ling for them to reduce the amount charged to the county.) For several others, that didn't sit well... There was no communication beforehand and it looks like the Council making decisions... Will "Fresh" do better, well, think of it like a basketball game with five starting players... One of players is having a bad game... take him out... will (his replacement) do better. I don't know..." (Regarding the elimination of Emily Naeole's chairmanship of the Human Services and Economic Development Committee) "(Doling out E l.' million to non-profit organizations) is money issue and it should be related (to Finance). (Is Emily Nicole qualified to serve as vice chair?) "I can't answer that, that's (Dennis "Fresh" Onishi's) resolution. It's up for discussion. I don't know, I'd like to see the reasoning..." (Asked if this was brought up when he, Dennis "Fresh" Onishi, and I Yoshimoto discussed the reorganization, the answer was yes. (Asked if Emily Naeole could effectively run a County Council meeting in the event that 1 Yoshimoto is absent and she needs to cover him) "It's a long shot," Guy Enriques said. "Like anything else, you've got to give people a shot. A lot of times, people aren't given a shot. If Emily is the vice chair, it may be that. Could she be a leader? The people of Pahoa think she is a good leader. That's the thing about this, can't meet because of Sunshine Law. We're going to have a tough budget the next go around. Do we want to handle it the same way we just did. (Asked why he should lead the Public Works and Intergovernmental Relationships Committee) "1 thought Brenda had a tough time building relationships. There was a lot of strenuous stuff. It caused a lot of friction..." "1 understand there are things in the depanments that a lot of people are concerned about. I'm going back to what I've been telling you about working with the administration. You have to have separation, that's important But at the same time, you've got to understand your roles. You don't go writing letters... I don't want to see the same County Council 1 saw last year, the same kind of hakalil (fighting, quarreling)... That's why I went to Fresh and I went to 1, saying there are lumps in the road we can all fiix_." (What do you think will be the reaction of Dominic Yagong, Brenda Ford and Pete Hoffmann come Tuesday?) "1'm hoping they're team players and say, 'I'm having a bad day, you go in and take a shot'... if they're not a team player... that's fine. Give someone a chance to shoot the ball. How can you argue with that?... Give someone else a chance to succeed. It's not abort me, it's about making the team working better." (Asked what to him is better) "What's better, hopefully, is what we didn't see with the budget... for example, with Finance. We want people putting in a resolutions hopefully that are going to pass. Work with each other, communicate, not create friction and be overpowering in a sense Communication is one of the big things we talked about (when the 8085861412 O O 14:1929 06-18-2009 6i6 Big Island Chronicle * Bli,,'14e » ***Commentary*** Proposed (,Vil Reorganiz... Page 3 of 14 nine council members had an organization meeting last fall following their election and re-election), teamwork is one of the big things we talked about. Working together is what we talked about. We need to work together because we are heading toward a tougher situation" People are calling and telling me this is an east-west thing, a Hilo thing. It's not Hilo thing for me. It's not east-west... It's about working with the Council as close to one unit as possible, not only that, but working with administration not against them. But we have to take care of our own stuff. We have to work within the Council. If there is stuff not cool with the Council, we can't be working outside wish so much haka.kif... All nine of us, I want the best for this Council. We have to work together..." (What about all those people who feel like there should be checks and balances between the legislative and executive branches of government and feel like Brenda Ford, Dominic Yagong and Pete Hoffmann are championing their causes?) All I'm saying, the outcome of what we just did I'm not happy with for the specific reason 1 just told you. When came together as nine, talked about what wanted to do. Communication, respecting, working together, those things didn't happen. Dominic went off on his own. That's not working as a team. I don't know how anyone can support that. Yes, 1 have concerns about (county worker) Internet uLe. Overbudgetting. But how we go about it is what I'm concerned about... One thing I know, I know when someone's not playing team ball. Know when someone's not communicating with me. Haka.ki. Those things are pretty clear if we want to look at it that way. Give me a chance, give "Fresh" a chance, how can you put us down without giving us a shot? I don't know how Dominic going to respond. Don't know how Brenda going to respond. 1 know how I would... I would acknowledge from bench can do better. That's how team works. That's also how life works... As far as the public, you can't control people. I'm never worried about public opinion. You've got to do what's in your heart, you've got to do what you feel is right. If you're doing for the wrong reasons, saying, 'I'm doing this for the mayor' or'I'm doing this for Hilo,' that's not why... why 1 went into public office is 1 wanted to see a difference in the Council, how :he Council works with :he mayor. I wanted to see team work. If we're going to go through another tougher budget, we're going to need those things." (Asked why he sees this as a basketball game and not like the coup d'6tat we saw when Gary Safarik overtook the chairmanship from Jimmy Arakaki, when Stacy Higa overtook the chairmanship from Gary Safarik, when Pete Hoffmann overtook the chairmanship from Stacy Higa, and then J Yoshimoto overtook the chairmanship from Pete Hoffmann. "We're not changing the coach, we're changing the players," Guy Enriques said. "Which is most important position? 1 think it is the chair..." Having spoke with Guy Enriques, I'm thoroughly entertained. I'm very interested to hear from Dennis "Fresh" Onishi. I'd love for him to return my phone calls. I'd love to connect with Pete Hoffmann and hear what he says about the pitch for Emily Naeole to replace him as vice chair. I'm wondering Dennis "Fresh" Onishi's line of thinking? Is he thinking like Guy Enriques in terms of this Council stuff being like a basketball game and, like Guy Enriques in the cue of Brenda Ford and Dominic Yagong, believes Pete Hoffmann hasn't been a team player? Does he think that Emily Vaeole will be mom of a team player? Does he think, like Guy Enriques, that it will be a "long shot" she will ever have to govern a County Council meeting in the place of J Yoshimotot If so, isn't that duping her to believe that she has been passed a ball in this game of winning friends and influencing people? Frankly, 1 don't disagree with anything that Guy Enriques said in our conversation this morning. 1 do think, though, that you don't take people out of games and put them on the bench if they are actually making baskets. I think council members should do some summer reading. My advice for them is to pick up a copy of Dale Camegie's book, "How To Win Friends And Inf uence People." Here is the Cliff %otes version: Ilu ndamental Techniques in Handling People 1. Don't crt:icr:e, con:emn ca c:np:at- 2. Give :.cr.esc anc 3 n:e:e apprec:atccn. 3. arcase in t.'.e -tter :erson an tare: an". 0 0 ROBERT D.S. KIM ATTORNEY AT LAW A Hawaii Law Corporation P. O. Box 188 Kealakekua, Hawaii 96750 Tel. 329-6611 Fax. 329-6676 June 18, 2009 Hon. Paul Tsukiyama Director Office of Information Practices 250 South Hotel Street Suite 107 Honolulu, HI 96813 RE: Formal Complaint - Violation of Sunshine Law Serial One-On-one Communications Hawaii County Council Tuesday, June 16, 2009 Applicable Statutes: Haw. Rev. Stat. 5 92-1 et sea Dear Mr. Tsukayama: Our law firm has been retained by the west Hawaii Today, a newspaper of general circulation on the Island of Hawaii. I am authorized to make this formal Complaint against the Hawaii County Council for violation of Haw. Rev. Stat. 5 92-1 et seg. A statement of relevant facts is presented, followed by the applicable law and opinions. I. STATEMENT OF FACTS On June 16, 2009, the Hawaii County Council held a formal meeting. Council members began discussing Resolutions Nos. 200-09, 201-09 and 202-09. The issue before the council was the reorganization of the council. During the discussions, several council members referred to a meeting between Council Chair J Yoshimoto, County Clerk Kenneth Goodenow and Pete Hoffmann, in which Yoshimoto apparently told Hoffmann he "had five votes to make the measures pass" even without Hoffmann's support. Hoffmann provided an account of this conversation. That conversation took place Wednesday, June 10. EXHIBIT 6 0 0 Hon. Paul Tsukiyama Director Office. of Information Practices June 18, 2009 Page 2 During the discussion, council members Hoffmann and Brenda Ford (as well as at least a dozen members of the public) kept asking questions about the appearance of a violation of Hawaii's Sunshine Law. Chairman Yoshimoto instructed Mr. Goodenow to provide his opinion about the Sunshine Law and the relevant sections. Mr. Goodenow said the Sunshine Law permits council members (any number between two and less than a quorum, in this case four) to discuss matters "without limitation' pertaining to the election of board officers. Mr. Goodenow conceded that "it could be argued' that discussion of Resolution 202 might push the limits of that law, because 202-09 included changing council rules in order to consolidate some committees and change committee chairmanships. After the discussion, Council Resolution No. 201-09 passed, changing, committee chairmanships. Chairman Yoshimoto then asked council members to disclose with whom they spoke. Mr. Yoshimoto spoke with council members Onishi, Enriques and Hoffmann. Councilman Enriques spoke with Mr. Onishi and Mr. Yoshimoto. Mr. Onishi spoke with council members Enriques, Yoshimito and Kelly Greenwell. Thereafter, Hawaii County Corporation Counsel Lincoln Ashida advised the council that by divulging the apparent violations in an open meeting that such action `cured' the violation. A true and copy of an article in the West Hawaii Today, dated June 18, 2009, is attached hereto as Exhibit "A' and is incorporated by reference herein. Based on the foregoing factual history (which is memorialized via videotape) the Hawaii County Council has violated the letter and spirit of Haw. Rev. Stat. 5 92F-1 et seq. The reorganization of the council, and any subsequent acts that are premised on the illegal acts of this body are to be construed as null and void ab initio. II. APPLICABLE LAW As a matter of public policy, Haw. Rev. Stat. Chapter O O Hon. Paul Tsukiyama Director Office of Information Practices June 18, 2009 Page 3 92, was enacted by the Hawaii State government as the only viable and reasonable method of protecting the public's interest. Haw. Rev. Stat. § 92-1. The provisions requiring open meetings shall be liberally construed, while the exceptions to the open meeting requirements shall be strictly construed against closed meetings. Haw. Rev. Stat. § 92-1. Haw. Rev. Stat. § 92-2.5, entitled `Permitted interactions of members' states as an exception in subsections (a) and (c) that: (a) Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum or their board. (c) Discussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board's officers may be conducted in private without limitation or subsequent reporting. However, your office has specifically rendered a legal opinion involving the specific topic of serial one-on-one communications between council members involving selection of chairmanships and standing committees of the Honolulu City Council. A true and correct copy of office of Information Practices (~OIP") Opinion Letter No. 05-015, is attached hereto as Exhibit •B• and is incorporated by reference herein. After formal analysis, the OIP concluded: Given the explicit language and purpose of our statute, we believe that section 92-2.5(a) statute cannot be read to allow a board to use a series of one-on-one discussions to discuss the same council business with more than one other council member outside of a meeting. Whether intended or not, use of section 92- 2.5(a) to conduct serial one-on-one communications clearly circumvents the spirit and requirements of the 0 Q Hon. Paul Tsukiyama Director Office of Information Practices June 18, 2009 Page 4 Sunshine Law in direct violation of section 92-5(b). The foregoing OIP opinion is clear and unambiguous. The Hawaii County Council has engaged in what is known as a "step transaction°. A step transaction is when a party undertakes in several separate steps to circumvent the law involving a single transaction that is illegal under current law. This violates the spirit and letter of Haw. Rev. Stat. Chapter 92. Furthermore, this analysis has been recognized by our Hawaii Intermediate Court Appeals in the case of Right to Know Committee v City Council City and County of Honolulu, 175 P.3d 111 (Haw. 2007) (*Right to Know") a true and correct copy of which is attached hereto as Exhibit "C° and is incorporated by reference herein. In the Right To Know decision, a private corporation sought enforcement of the Honolulu City Council for violation of Hawaii's Sunshine Law pursuant to.Haw. Rev. Stat. § 92-12. In addressing the issue of serial one-on-one communications, the high court recognized that °[t]he phrase 'circumvent the spirit' of the Sunshine Law is far from plain and unambiguous°. Xd. at 122. It was recognized that: when Council members engaged in a series of one-on-one conversations relating to a particular item of Council business (the council resolution in this case), the spirit of the open meeting requirement was circumvented and the strong policy of having public bodies deliberate and decide its business in view of the public was thwarted and frustrated. Id. The court held that council members were not permitted to engage in serial communications in deliberating a resolution that sought to reorganize the council's standing committees. Id. at 122-123. In such instances, the plaintiffs therein were awarded all of its attorneys' fees and costs under the private attorney general doctrine for protecting the public's rights. O O_ Hon. Paul Tsukiyama Director Office of Information Practices June 18, 2009 Page 5 Please be advised that my clients have authorized me to prepare the necessary legal documents to seek court intervention for violations of the Hawaii Sunshine Law, for declaratory judgment rendering the subsequent decisions of the Hawaii County Council null and void, and for injunction to stop the continuation of these illegal acts. Your prompt determination of this formal complaint is appreciated in the interest of protecting Hawaii's citizens right to an open government. Very truly yours, Robert D.S. Kim Encl. cc: West Hawaii Today Hon. Lincoln Ashida (with enclosures) ~s~ a 4 Oil THUrisonr_,~.ns~~z,Qo9 x- k SUNSHII~E~LA~II`~ : • ~ r .~;y; . ~~,?~SUNS NE~L~W: ' e~.i~d ~ ayr eY f ed ~omplainf with state- nmda nd. COUNC l UE d o i o wi REPEUS~S ON~ i o ' h as . gMMw1 t a. ~ Jpp yr • y wBl6i _ r + ~P t~kd w KILO l.u~.''~Yyy^^~~~~yy~~'~`TTP~ ~y ~ T)F:'. M? h i ~ m Ihp WMIF VWNM.4, ~InY .C(f111Y' R e•h' S - - t' 1N11 :~j 9+.! tY{ amIJ~~aht~• >alY•• i~ .1, 11 1 • Y '7mttNAm~MrM •LoiA:- Thet~asiYN~ .°u,~i..Rf yws 6•~W!6Yd h4 rt '7w'('Ii~dmW;bE6 Wd 9 amloll•d' _ _ _ _ diiY'W~ i8rm_~ y.. doh mi "b °r~ •mdmYo+,,,.~+ s 1'~59!~' ~ ~'~~ah3msc ~ °e4T y itl - aEON 3r '11rt ilhn• 'A7'.it5°9Mi.. ...~J.'dW.i!~' mlerwr t Navan q*ty z eke :=~s ASlax S kaa-,err ufYW~ b f*J 6P5:'tSSa',$' r !y19 Mx c4 , "os Ne"tmN•Ime~rit6.. oL.~'HfS "yly lA• h5iJ3m? t ~ ~ou~..?app,qp. _ r ~rrru: JG~ W Y ~ r J t IImO•"'PI'"r a} sW 10 "Oll ~i1F ~ ~^Y •AcJ~f•rl Y k. 6r.~ h0~111•rff•0{~{M{!I ~•~Pt •j0Yre1l~•11~I~Iy~l~~mplM m wW' lms ~~Ii~,m~; AOid.~pk&. ft•._l' -tw W in, ' ~Y .roUq ~•.y~M~ ~otli•; rf•iieNi$t Tor.' `.d4.;.;dilro.y'scW EXHIBIT STATE OF HAWAII OFFICE OF THE LIEUTENANT GOVERNOR L'rtu~r6w 4o~.uwa OFFICE OF INFORMATION PRACTICES ""/K1O"00 Na I cAFlrot olerRlcr alAlosw 250 SOUM MOTEL STREET. sUME ter MONOLULU, IMWM M13 TWpMM: ONSW1400 FAX (SOSISee•1412 E&MAL: **Maipw August 4, 2005 VTA FACSDU E NO +23-4220 The Honorable Donovan M. Dela Cruz Chairman, City Council City and County of Honolulu 530 S. King Street, 2nd Floor Honolulu, HI 96813 Re: Serial One-On-One Gommuni aHona Dear Council Chair Dela Cruz: You have requested that we reconsider our opinion to you that part I of chapter 92, Hawaii Revised Statutes (the "Sunshine Law"), does not allow members of the City Council (the "Council") to discuss the same council business through a series of private one-on-one discussions. To clarify our interpretation of the statute for you and other boards that are subject to the Sunshine Law, we are responding to your letter by way of a formal opinion letter. ISSUE PRESENTED Whether two council members who have discussed council business' between themselves may discuss -the same council business with other council members through a series of one-on-one discussions. 1 To describe the discussions, deliberations and decisions that require compliance with the Sunshine Law, we coined the term "board business" (or, in this can, 'council business"), which we define as thaw matters over which the board has supervision, control, jurisdiction, or advisory power that are currently before the board or that are reasonably anticipated to come before the board in the foreseeable future for discussion, deliberation, and action. An OIP Op. Ltr. No. 01-01. The discussions, deliberations, and decisions concerning "board business" must be conducted in a properly noticed meeting unless there is so exception in the statute that allows the board members to discuss, deliberate or decide the matter outside of a meeting. "All"I =VLAIBITMS r OIP Op. Ltr. No. 05-015 0 Q The Honorable Donovan M. Dela Cruz August 4, 2005 Page 2 RRTF.F ANSWER No. While the Sunshine Law allows two council members to discuss council business between themselves, the statute does not permit either of those council members to then discuss the same council business with any other council members outside of a properly noticed meeting. Such serial communication is contrary to the letter, the intent and the spirit of the statute. FACTUAL BACKGROUND On July 7, 2005, seven members of the Council co-introduced Resolution 05- 243 (the "Resolution") for the purpose of reorganizing the Council's standing committees, including the chairmanships of certain committees.z The Resolution listed each of the Council's standing committees and identified the proposed chairs, vice-chairs and members of those committees. The Resolution was included on the Council's agenda for its Special Meeting held on July 13, 2006.3 On July 8, the Honolulu Star-Bulletin and the Honolulu Advertiser reported that the Council was reorganizing its committees. Based upon statements attributed to you and other council members, it appeared that, although the Resolution had yet to be considered at a public meeting, the reorganization of the committees had already been discussed by a majority of the Council and that a majority of the Council had already decided to vote to approve the Resolution. Consequently, we contacted your office for information about the Resolution, including whether it was council business. Among other things, we were advised by your office that you had discussed the matter in a series of one-on-one discussions with the majority of the other council members.* s In our letter to you dated July 12, 2005, we raised our concern about multiple council members introducing the Resolution. As we explained, at a minimum, it appears that, by asking other council members to co-introduce the Resolution, the Resolution's author essentially' polled" the other council members as to their preliminary inclinations regarding the proposed reorganization of the committees. Because the Sunshine Law is intended to protect the public's ability to participate in and scrutinize the Council's business, council members may not decide council business, even if the decision is preliminary and subject to change, outside of a properly noticed meeting. So 011? Op. Ltr. No. 04-04. While that issue is beyond the scope of this letter, we strongly caution you that the practice of allowing multiple council members to introduce bills, resolutions and other business may, in certain circumstances, violate the Sunshine Law. 3 We understand that the Rules of the City Council, in effect at that time, required that the Council establish its committees, including the organization and membership of those committees, by resolution. Accordingly, the reorganization of the Council's committees, which had to be decided by the entire Council, was council business that could not be conducted outside of a properly noticed meeting unless allowed by law. 4 We have repeatedly requested information from you about your communications with other council members, including the number of council members that you spoke with through the OIP Op. Ltr. No. 05-015 0 0. The Honorable Donovan M. Dela Cruz August 4, 2005 Page 3 By letter dated July 12, we advised you of our opinion that, because reorganization of the committees was council business, council members could discuss specifics about the reorganization only in a public meeting unless a permitted interaction or other statutory exception allowed the council members to discuss the matter privately. We noted that, although one of the permitted interactions allows two council members to privately discuss council business, those two council members cannot then discuss the same council business with any other council member outside of a meeting. To protect against the Council's subsequent actions being declared void and to cure the apparent violations, we recommended that the Council completely consider the Resolution at the meeting. Because no firm decision appears to have been previously made, we believe that the Council may cure or mitigate the injury to the public's right to know in this instance by completely considering the Resolution at the July 13 meeting. This means that you and the other council members should fully discuss any information or argument previously heard and considered in deciding whether to support or oppose the reorganization of the Council's standing committees. In our opinion, this would best allow the public to scrutinize and to participate in the Council's consideration of this decision in the manner in which the public is entitled under the Sunshine Law. Emphasis added. The Council, however, elected to disregard our recommendation. Instead, at its Special Meeting on July 13, the Council approved the Resolution without any substantive discussions At your request, we met with you, Corporation Counsel Carrie K.S. Okinaga, First Deputy Corporation Counsel Donna M. Woo, Deputy Corporation Counsel Diane T. Kawauchi, and Diane E. Hosaka, director of the Office of Council Services, on July 14 to discuss, among other things, our opinion that the Sunshine Law does serial discussions. Given that you have not responded to our request for additional information about your communications with other council members, we must assume that such one-on-one discussion did occur and, therefore, base this opinion on that assumption. We also note that you have advised us that you and the other council members believe that serial one-on-one discussions are allowed under the Sunshine Law and intend to continue discussing council business between yourselves through such private serial discussions. s Only Councilmember Nester Garcia spoke regarding the Resolution. His statements, however, did not relate to the substance of the Resolution. Instead, Councilmember Garcia expressed his appreciation for being allowed to serve as chairman of the Committee on Transportation and as vice-chairman of the Committee on Budget and his eagerness to work with certain people as the new chair of the Committee on Parks. Rather than cure any earlier Sunshine Law violation, Councilmember Garcia's statements served to confirm that the reorganization of the Council's committees had been discussed and decided prior to the meeting. ON Op. Ltr. No. 05-015 0 0 The Honorable Donovan M. Dela Cruz August 4, 2005 Page 4 not allow serial one-on-one discussions between council members about the same council business. Subsequent to our meeting, we received correspondence from you, attaching a memorandum to you from the Office of Council Services, regarding the serial communication issue. You have also informed us that it is your position and the position of the other council members that the Sunshine Law allows the Council to have these serial one-on-one discussions. As discussed in more detail below, we do not End either the arguments raised during our meeting or the memorandum persuasive. DISCUSSION The explicit language of our statute, both in its general provisions and its specific provisions, clearly prohibits serial one-on-one discussions between council members about the same council business. The legislature expressly declared its policy and intent '"that the formation and conduct of public policy - the discussions, deliberations, decisions, and actions of government agencies - shall be conducted as openly as possible' in order to protect the people's right to know Sasou v. Aloha Tower Dev. Corn., 74 Haw. 365, 383 (1993) (quoting Haw. Rev. Stat. § 92-1 (1993)). To effectuate this policy and intent, the legislature directed that "[t]he provisions requiring open meetings shall be liberally construed" and "[t]he provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings." Haw. Rev. Stat. § 92-1. Based upon the legislature's expressed policy and intent, we - and the Department of the Attorney General (the "AG") before us - have consistently opined that, under the Sunshine Law, board members may discuss board business only in a properly noticed public meeting unless the statute expressly allows otherwise. ,&& Op. Att'y Gen. No. 85-27 (even if quorum not present, committee may be prohibited from discussing official board business if notice requirements not met). Consistent with this interpretation, the legislature amended the Sunshine Law in 1996 to expressly allow certain "permitted interactions," i.e., instances when board members can discuss or consider board business outside of a meeting, without notice and without public participation. aft Haw. Rev. Stat. § 92-2.5 (Supp. 2004). In the preamble to the act that added the permitted interactions, the legislature recognized "that there are instances when it is appropriate for interactions between board members to occur" outside of a public meeting. Act 267, 18th Leg., 1996 Reg. Sess. The legislature thus stated that the purpose of the act was, in part, to specify those instances and occasions in which board members could discuss certain board matters "in a manner that does not undermine the essence of open government." U (Emphasis added). The legislature accordingly added a permitted interaction specifying that "[t]wo members of a board may communicate or interact privately between themselves to gather information from each other about official board matters to OIP Op. Ltr. No. 05-015 0 0 The Honorable Donovan M. Dela Cruz August 4, 2005 Page 5 enable them to perform their duties faithfully, as long as no commitment to vote is made or sought." M, (Emphasis added). At the same time, however, the legislature specifically addressed any potential misuse by expressly prohibiting board members from using the permitted interactions to defeat the statute's purpose of protecting the public's right to know, adding "permitted interactions" to the list of methods under section 92-5(b) that shall not be used to circumvent either the requirements or the spirit of the Sunshine Law: No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power. Haw. Rev. Stat § 92-5(b) (emphasis added). Indeed, the AG has until recently interpreted section 92-2.5(a) along with 92- 5(b) to allow two board members to discuss board matters only in general, as opposed to specific, terms. The AG's interpretation, thus, would prohibit even two council members from discussing the committee reorganizations outside of a public meeting. Because we read section 92-2.5(a) to allow two board members to discuss official board business in specific terms, we sought an amendment to section 92- 2.5(a) in this last legislative session in order to eliminate any confusion over the extent to which two board members could carry on a discussion regarding official board business. && Act 84, 23rd Leg., 2005 Reg. Sess. Specifically, the legislature passed the amendment to clarify that two board members may discuss specific, official board business as long as no decision is made. Section 92-2.5(a) was thus amended to read as follows: Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board. Act 84, 23rd Leg., 2005 Reg. Sess. (Emphasis added). The amendment further emphasizes that the two board members cannot constitute a quorum of their board to again direct, consistent with the legislature's directive in section 92-5(b), that this permitted interaction not be used to circumvent the Sunshine Law's requirements that board business be deliberated and decided in a public meeting. Notwithstanding the legislature's explicit directives and the AG and OIP's opinion construing section 92-2.5(a), the Council has decided to liberally construe the exception provided by section 92-2.5(a) in order to use it to allow council members to discuss the same council business between a majority of its members through a series of one-on-one discussions so long as there are only two council OIP Op. Ltr. No. 05-015 a o The Honorable Donovan M. Dela Cruz August 4, 2005 Page 6 members present at any one discussion. To interpret this exception to allow the council members to discuss, in a series of conversations, what they could not do together outside of a noticed public meeting renders the specific language of the provisions discussed above as well as the very essence of the Sunshine Law meaningless. SM Jones v. Tanzler. 238 So.2d 91, 93 (Fla. 1970) ("It is elementary that officials cannot do indirectly what they are prevented liom doing directly'); State ex rel. Cincinnati Post v. City of Cincinnati . 668 N.E.2d 903, 906 (Ohio 1996) ("To find game of legislative musical chairs' is allowable under the Sunshine Law would be to ignore the legislative intent of the statute, disregard its evident purpose, and allow an absurd result"). Our statute's very purpose is to protect the public's right to be present during the Council's discussion of council business, with the exception of very specific instances provided, which the legislature expressly directed "shall be strictly construed against closed meetings." Haw. Rev. Stat. § 92- 1. Serial communications could not be a clearer example of the use of a permitted interaction to circumvent both the letter and the spirit of the Sunshine Law in direct contravention to section 92-5(b). Moreover, you have stated the Council's belief that, absent a commitment to vote, the public's interest is unharmed by the serial discussions. This contention misunderstands the nature of the harm that the Sunshine Law is meant to protect against. The harm is not the damage that may ultimately result from the actual decision made. Rather, the harm is to the public's ability to witness and participate in the process: The express premise of the Sunshine Law is that "[o]pening up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." Haw. Rev. Stat. § 92-1. Accordingly, where the Council limits the public's right to scrutinize its actions, including its discussions, the public is inherently harmed. In reorganizing its committees, the council members privately discussed council business and thereafter approved the Resolution without any substantive discussion or deliberation, giving the public no understanding of, for instance, the reasons for the reorganization. The Council thus simply "rubber stamped" a decision that had obviously been made prior to the meeting through private one-on- one discussions. It is our opinion that your discussions with other council members about the reorganization violated the Sunshine Law because it deprived the public of its right to hear the Council's discussion and, therefore, that the Council's approval of the Resolution and matters flowing therefrom are voidable. Haw. Rev. Stat. § 92-11. While the specific issue here, namely the committee reorganizations, may rightly be a "housekeeping" matter of little public import, it is the broader issue that the council's actions raised that must be addressed. For example, under the Council's interpretation, council members could discuss increasing property taxes or the location of Oahu's landfill outside of a meeting - without public notice, without public participation in the discussion and without minutes reflecting the substance OIP Op. Ltr. No. 05-015 o a The Honorable Donovan M. Dela Cruz August 4, 2005 Page 7 of the discussion and, as you did with the Resolution, could then decide the matter at a Council meeting without any discussion.a While you claim that such a scenario is unrealistic, we emphasize that the law does not provide boards discretion on this matter. Where an exception does not exist to discuss council business outside of a meeting, the Sunshine Law is absolute. The public has a right to participate and to hear all of the Council's discussions, deliberations and actions taken in a properly noticed meeting. Accordingly, it is our duty to advise the Council that its asserted interpretation of the Sunshine Law to allow council members to discuss council business through a series of discussions outside of a meeting as long as no more than two members are present at each discussion is contrary to the letter, intent and spirit of the Sunshine Law, SM Haw. Rev. Stat. $ 92F-42(18) (Supp. 2004). As explained above, such an interpretation flies in the face of the express language as well as the legislature's explicit policy and intent of the Sunshine Law and would render much of the law's principal provisions meaningless. Because the language of our statute is clear, cited cases in the Office of Council Services' memorandum to you provide no guidance in interpreting our statute. We note in passing, however, that the cases are legally distinguishable and represent a minority opinion among the jurisdictions.? The majority of jurisdictions in fact reject serial communications as being counter to the very purpose of their respective open meetings laws. $gg, && Booth Newspapers v. Wv ming City Council. 425 N.W.2d 695, 700-01 (Mich. App. 1988) Quncheon meetings with less s In rejecting the argument that California's public meetings law applied only to "formal" meetings, the California appellate court noted. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre- meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices. Sacramento Newspaper Guild v Sacramento County Board of Supervisors 69 Cal. Rptr. 480, 487 (Cal. App. 1968). r In fact, three of the four cases cited in the memorandum appear to support our finding that the series of one-on-one discussions that you had with other council members is prohibited by the statute. The courts there held that serial discussions did not violate the open meetings laws in question because there was no evidence that the boards had intended to avoid the public meeting process through the serial discussions. Moberg v Ind n Bch Dist No 2811 336 N.W.2d 510, 518 (Minn. 1983% Hispanic •d u .o v Houston Indep Sch, Dist.. 888 F. Supp. 608, 810 (S.D. Houston 1994%Herria County Emergency Serv Dist #1 v H w Rmargenc~ ^prpa 999 S. W.2d 163, 189 (Tex. App. 1999). Implicit in those opinions, thus, is the prohibition of serial discussions designed to circumvent the public's right to participate in the board's discussions, deliberations and decisions. OIP Op. Ltr. No. 05-015 0 ~J The Honorable Donovan M. Dela Cruz August 4, 2005 Page 8 than a quorum to get a "non-binding sense of direction" from other council members "circumvent[ed] the legislative principles as well as the overall objective of the [Open Meetings Act) to promote openness and accountability in government."); Jones v. Tanzler. 238 So.2d at 93 ("statute should not be circumvented by small individual gatherings wherein public officials may reach decisions in private on matters which may foreaeeably affect the public."); State ex rel. Cincinnati Post Y. City of Cincinnati, 668 N.E.2d 903; Sacramento Newmaper Guild v. Sacramento County Bd. of Supervisors. 69 Cal. Rptr. 480 (Cal. App. 1968); Okla. Op. Atty. Gen. 81-69 (Apr. 2,1981) ("Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed."); Ky. Op. Atty. Gen. 00-OMD-63 (2000) (series of less than a quorum meetings about public business "deprived [the public] of an opportunity to observe their discussion of these matters in contravention of the principle, codified at IM 61.800, that `the formation of public policy is public business and shall not be conducted in secret CONCLUSION Given the explicit language and purpose of our statute, we believe that section 92-2.5(a) statute cannot be read to allow a board to use a series of one-on- one discussions to discuss the same council business with more than one other council member outside of a meeting. Whether intended or not, use of section 92- 2.5(a) to conduct serial one-on-one communications clearly circumvents the spirit and requirements of the Sunshine Law in direct violation of section 92-5(b). Very yours, Leslie H. Kondo Director cc: The Honorable Ann Kobayashi (via facsimile 523-4220) The Honorable Romy M. Cachola (via facsimile 523-4220) The Honorable Todd K. Apo (via facsimile 523-4220) The Honorable Barbara Marshall (via facsimile 523-4220) The Honorable Charles K Djou (via facsimile 523-4220) The Honorable Rod Tam (via facsimile 523-4220) The Honorable Gary Okino (via facsimile 523-4220) The Honorable Nestor R. Garcia (via facsimile 523-4220) The Honorable Carrie K.S. Okinaga (via facsimile 527-5631) Diane E. Hosaka, Esq. (via facsimile 550-6149) OIP Op. Ltr. No. 05-015 O O Page 2 of 20 Westlaw. 175 P.3d 11 I Page 1 1 17 Hawaii 1, 175 P.3d I 1 I (Cite as: 117 Hawal'11,175 P.3d 111) P of Appeals, Foley, J., held that Intermediate Court of Appals of Hawaii: (1) exceptions to mootness doctrine applied so as to RIGHT TO KNOW COMMITTEE, a Hawaii non- allow circuit court to hear claims; profit corporation; League of Women Voters of (2) corporations had standing as private attorneys Hawai'i, a Hawai'i non-profit corporation; Society general to bring action against city and city council of Professional Journalists. Hawaii Chapter, an In- for alleged violations of the open meeting require- diana not-for-profit corporation; University of ments of the Sunshine Law; Hawaii Chapter of the Society of Professional (3) city council members were not permitted to en- Journalists, an Indiana not-for-profit corporation; gage in serial communications involving a quorum Big Island Press Club, Inc., a Hawaii non-profit of council members in deliberating resolution that corporation; Hawaii Political Reform Project, dba sought to reorganize the council's standing commit- Hawaii Pro-Democracy Initiative, a Hawaii non- tees; and profit corporation; Citizen Voice, a Hawai'i non- (4) corporations were entitled to full attorney fees profit corporation; and Honolulu Community Media in their action. Council, a Hawai'i non-profit corporation, Plaintiffs/Appellees/Cross-Appellants, Vacated and remanded. and State of Hawaii, Intervenor- West Headnotes As-A-Plaintiff/Appellee/Cross-Appellee V. (1) Appal and Error 30 E=893(1) CITY COUNCIL, CITY AND COUNTY OF HON- OLULU; Donovan M. Dela Cruz, Todd K. Apo, 30 Appeal and Error Barbara Marshall, Charles K. Djou, Ann H. Kobay- 30XVI Review ashi. Rod Tam, Romy M. Cachola, Gary H. Okino, 30XVI(F) Trial De Novo and Nester R. Garcia, in their official capacities as 30k892 Trial De Novo members of the Honolulu City Council, Defend- 30k893 Cases Triable in Appellate Court ants/Appellants/Cross-Appellees. 301:893(l) it. In General. Most No. 27996. Cited Cases A trial court's grant or denial of a motion to dismiss Dec. 28, 2007. for lack of subject matter jurisdiction is a question As Corrected Feb. 15, 2008. of law, reviewable de novo. Background: Non-profit corporations brought ac- 12) Appal and Error 30 f=863 tion against Honolulu City Council, alleging viola- tion of the open meeting requirements of the Sun- 30 Appal and Error shine Law. The Circuit Court, Eden Elizabeth Hifo, 30XVI Review J., dismissed one count of complaint, denied de- 30XVI(A) Scope, Standards, and Extent, in fendant's motion to dismiss remaining count as General moot, granted corporations summary judgment on 30k862 Extent of Review Dependent on remaining count, and awarded corporations attorney Nature of Decision Appealed from fees. 30k863 it. In General. Most Cited Cases Holdings: On cross-appals, the Intermediate Court Appal and Error 30 ED=919 ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. EXHIBIT http://web2.westlaw.com/print/printsmm.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 Page 3 of 20 175 P.3d I I 1 Page 2 1 17 Hawai'i 1, 175 P.3d 11 I (Cite as: 117 Hawai'I 1,175 P.3d 111) 30 Appeal and Error a court's jurisdiction; thus, the issue of standing is 30XVI Review reviewed de novo on appeal. 30XVI(G) Presumptions 30k9l5 Pleading [4] Appeal and Error 30 (=984(5) 30k919 k. Striking Out or Dismissal. Most Cited Cases 30 Appeal and Error 30XVI Review Pretrial Procedure 307A 0=624 30XVI(H) Discretion of Lower Court 30k984 Costs and Allowances 307A Pretrial Procedure 30k984(5) k. Attorney Fees. Most 307AHI Dismissal Cited Cases 307AM(B) Involuntary Dismissal The gram and/or denial of attorney's fees is re- 307AM(B)4 Pleading, Defects In, in Gen- viewed on appeal for an abuse of discretion. eml 307Ak623 Clear and Certain Nature of [5] Action 13 0=6 Insufficiency 307Ak624 k. Availability of Relief 13 Action Under Any State of Facts Provable. Most Cited 131 Grounds and Conditions Precedent Review of a motion to dismiss for lack of subject 13k6 k. Moot, Hypothetical or Abstract matter jurisdiction is based on the contents of the Questions. Most Cited Cases complaint, the allegations of which the appellate A case is "moot" if it has lost its character as a court accepts as true and construes in the light most present, live controversy of the kind that must exist favorable to the plaintiff; dismissal is improper un- if courts are to avoid advisory opinions on abstract less it appears beyond doubt that the plaintiff can propositions of law. prove no set of facts in support of his claim which would entitle him to relief. (6] Appeal and Error 30 fr`+781(1) (3) Action 13 E=13 30 Appeal and Error 30XIII Dismissal, Withdrawal, or Abandonment 13 Action 30k779 Grounds for Dismissal 131 Grounds and Conditions Precedent 30k781 Want of Actual Controversy 13k13 It. Persons Entitled to Sue. Most Cited 30081(1) k. In General. Most Cited Cases Case The mootness doctrine is properly invoked where Appeal and Error 30 E=893(1) events have so affected the relations between the parties that the two conditions for justiciability rel- 30 Appeal and Error evant on appeal, adverse interest and effective rem- . 30XVI Review edy, have been compromised. 30XVI(F) Trial De Novo 30k892 Trial De Novo (7) Municipal Corporations 268 C=92 30k893 Cases Triable in Appellate Court 30k893(l) k. In General. Most 268 Municipal Corporations Cited Case 268IV Proceedings of Council or Other Govem- A plaintiff without standing is not entitled to invoke ing Body 2681V(A) Meetings, Rules, and Proceedings in General 268k92 k. Rules of Procedure and Con- ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 O Page 4 of 20 175 P.3d 1 I I Page 3 1 17 Hawaii 1. 175 P.3d I 1 I (Cite as: 117 Hawai'I 1, 175 P.3d 111) duct of Business. Most Cited Cases ing Body Under the public-interest exception to mootness 268IV(A) Meetings, Rules, and Proceedings doctrine, circuit court was entitled to hear Sunshine in General Law suit challenging city council's practice of hav- 268k92 It. Rides of Procedure and Con- ing serial one-on-one conversations among the duct of Business. Most Cited Cases council members in anticipation of an upcoming Issue of whether city council's practice of having resolution; the issue of whether the one-on-one con- serial one-on-one conversations among the council versations violated the Law was a question of a members in anticipation of an upcoming resolution public nature, and an authoritative determination of violated the Sunshine Law was capable of repeti- the issue for future guidance of council members tion, but could evade review, and thus, circuit court was highly desirable and consistent with the strong was not precluded under the moomess doctrine public policy of protecting the public's right to from hearing challenge to council's practice. HRS § know. HRS § 92.2.5(a). 92-2.5(a). (9] Action 13 E=6 (11] Municipal Corporations 268 C=92 13 Action 268 Municipal Corporations 131 Grounds and Conditions Precedent 2681V Proceedings of Council or Other Govern- 13k6 it. Moot, Hypothetical or Abstract ing Body Questions. Most Cited Cases 2681V(A) Meetings, Rules, -and Proceedings A public-interest exception to the moomess doc- in General trine arises when the question involved affects the 268k92 it. Rules of Procedure and Con- public interest and it is likely in the nature of things duct of Business. Most Cited Cases that similar questions arising in the future would Non-profit corporations had standing as private at- likewise become moot before a needed authoritative torneys general to bring action against city and city determination by an appellate court; among the cri- council for alleged violations of the open meeting teria considered in determining the existence of the requirements of the Sunshine Law. HRS § 92-12(c). requisite degree of public interest are the public or private nature of the question presented, the de- 1121 Municipal Corporations 268 ED=92 sirability of an authoritative determination for the future guidance of public officers, and the likeli- 268 Municipal Corporations hood of future recurrence of the question. 2681V Proceedings of Council or Other Govern- ing Body (9] Action 13 46=6 268fV(A) Meetings, Rules, and Proceedings in General 13 Action 268k92 it. Rules of Procedure and Con- 131 Grounds and Conditions Precedent duct of Business. Most Cited Cases 13k6 k. Moot, Hypothetical or Abstract Under the open meeting requirements of the Sun- Questions. Most Cited Cases shine Law, city council members were not permit- An exception to mootness arises when the case is ted to engage in serial communications involving a capable of repetition, yet evades review. quorum of council members in deliberating resolu- tion that sought to reorganize the council's standing (10] Municipal Corporations 268 E=92 committees; although the Sunshine Law did not ex- pressly preclude council members from engaging in 268 Municipal Corporations serial one-on one conversations regarding resolu- 2681V Proceedings of Council or Other Govern- tion, the use of such serial communications circum- ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. htip://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn =top&mt=H... 6/18/2009 Q Page 5 of 20 175 P.3d 1 I I Page 4 117 Hawaii 1, 175 P.3d 111 (Cite as: 117 Hawaii 1,175 Pad 111) vented the spirit of the open meetings requirement Opinion of the Court by FOLEY, J. and thwarted the strong policy of having public bodies deliberate and decide its business in view of *3 Defendants/Appellants/Cross-Appellees the City the public. HRS § 92-2.5. Council of the City and County of Honolulu (Council) and Donovan M. Dela Cruz, Todd K. [13) Appeal and Error 30 E=170(1) Apo, Barbara Marshall, Charles K. Djou, Ann H. Kobayashi, Rod Tam, Romy M. Cachola, Gary H. 30 Appeal and Error Okino, and Nester R. Garcia, in their official capa- 30V Presentation and Reservation in Lower cities as members of the Honolulu City Council, Court of Grounds of Review (hereinafter, Council and the individual defendants 30V(A) Issues and Questions in Lower Court are collectively referred to as Defendants) appeal 30k170 Nature or Subject-Matter of Is- F' from the Final Judgment entered on May 26, sues or Questions 2006 in the Circuit Court of the First Circuit 30k170(1) k. In General. Most Cited (circuitcourt).M2 Cases Legal issues not raised in the vial court are ordinar- FNI. The Opening Brief of Defendants/Ap- ily deemed waived on appeal. pellants/Cross-Appellees the City Council of the City and County of Honolulu [I4] Municipal Corporations 268 C=1040 (Council) and Donovan M. Dela Cruz, Todd K. Apo, Barbara Marshall, Charles 268 Municipal Corporations K. Djou, Ann H. Kobayashi, Rod Tam, 268XVIActions Romy M. Cachola, Gary H. Okino, and 268k1040 It. Costs. Most Cited Cases Nester R Garcia (Council and the indi- Non-profit corporations were entitled to full attor- vidual defendants are collectively referred ney fees in their action against city and city council to as Defendants) fails to comply with for violations of the Sunshine Law, even though Hawaii Rules of Appellate Procedure corporations did not prevail on all of their claims, (HRAP) Rule 28(b)(4) in that each point of where the corporations' claims for relief involved a error does not state "(ii) where in the re- common core of facts and were based on related cord the alleged error occurred; and (iii) legal theories and much of their counsel's time was where in the record the alleged error was devoted generally to litigation as a whole, making it objected to or the manner in which the al- difficult to divide the hours expended on a claim- leged error was brought to the attention of by-claim basis. HRS § 92-12(c). the court or agency." Defendants' counsel •"113 Don S. Kitaoka, Deputy Corporation Coun- is warned that future non-compliance with sel (Came K.S. Okinaga, Corporation Counsel; Re- HRAP 28(b)(4) may result in sanctions id M. Yamashiro and Derek T. Mayeshiro, Deputies against counsel. Corporation Counsel, with him on the briefs), for Defendants/Appellants/Cross-Appellee. FN2. The Honorable Eden Elizabeth Hifo presided. Elijah Yip (Jeffrey S. Portnoy with him on the briefs) (Cades Schutte LLP), Honolulu, for Plaintiffs/Appellees/Cross-Appellants Right To Plaintiffs/Appellees/Cmss-Appellants. Know Committee; League of Women Voters of Hawaii; Society of Professional Journalists, RECKTENWALD, CJ., FOLEY and NA- Hawaii Society Society of Chapmr; University Hawaii Chapter of of Professional Journalists; Big Island KAMURA. JJ. Press Club, Inc.; Hawaii Political Reform Project; ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 6 of 20 175 P.3d I I 1 Page 5 I 17 Hawai'i 1, 175 P.3d 1 I I (Cite as: 117 Hawai'1 1,175 P.3d 111) Citizen Voice; and Honolulu Community Media We understand that the City Council intends to Council (hereinafter collectively referred to as consider Resolution No. 05-243 as part of a Spe- Plaintiffs) cross-appeal as to the amount of attor- cial Meeting of the City Council scheduled for ney's fees awarded. Wednesday, July 13. The Resolution was The circuit coon entered in favor of intro- duced by seven council members apparently for judgment the purpose of reorganizing the Council's stand- Plaintiffs and against Defendants as to Count I of ing committees. We have been informed by your Plaintiffs' Complaint; dismissed, without prejudice, office that reorganization of the standing commit- Count lI as moot; and awarded attorney's fees in fa- tees requires approval by a majority of the coun- vor of the Society of Professional Journalists, cil members. Thus, *4 **114 the reorganization Hawaii Chapter, and against Defendants, jointly of the standing committees is "council business," and severally, on Counts I and III of the Complaint. i.e., a matter over which the Council has supervi- sion, control, jurisdiction, or advisory power. As- suming that to be the case, the Sunshine Law re- quires you and the other council members to dis- cuss any specifies about the reorganization of the On July 7, 2005, seven Council members intro- standing committees only as part of a properly duced Resolution 05-243, which sought to reorgan. noticed meeting unless there is a permitted inter- ize the Council's standing committees. The adop- action that allows the council members to discuss tion of Resolution 05-243 was the subject of a spe. the matte privately. cial Council meeting scheduled for July 13, 2005. On July g, 2005, Honolulu newspapers reported First. it is our understanding that you may have that Council members had already discussed the re- discussed this reorganization in a series of one- organization of the Council's standing committees on-one meetings with more than three other before the scheduled meeting. council members.... A permitted interaction al- lows two council members to privately discuss In a July 12, 2005 letter to Council Chair Donovan council business, but under this permitted interac. M. Dela Cruz (Dela Cruz) from Leslie H. Kondo tion those two council members may not then dis- (Kondo). Director of the Office of Information cuss the same council business with any other Practices (OIP), the CEP questioned the validity of council member outside of a meeting. See Resolution 05-243 RO: [Hawaii Revised Statutes (HRS) $ 92-2.51. Ac- cordingly, if you specifically discussed the reor- FN3. Hawaii Revised Statutes (HRS) § ganization with more than three other council 92-1.5 (Supp.2006) of HRS Chapter 92 members outside of a meeting, your discussions (Public Agency Meetings and Records- with those members should have occurred in a commonly known as the Sunshine Law) meeting open to the public and not through a provides in part: series of private conversations. See OIP Op. Ltr. No. 04-0 1. § 92-1.5 Administration of this pact The director of the office of information Second, the manner in which the Resolution was practices shall administer this part [MRS introduced appears to be contrary to the Sunshine Chapter 92]. The director shall establish Laws purpose of protecting the public's right to procedures for filing and responding to participate in and to scrutinize the Council's busi- complaints filed by any person concern- ness. Consistent with this statutory intent, we fin- ing the failure of any board to comply terpret the Sunshine Law to prohibit council with this par. ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/prindprintstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 7 of 20 175 P.3d 111 Page 6 117 Hawai'i I, 175 P.3d I I I (Cite as: 117 Hawaii 1,175 P.3d 111) members outside of a meeting from polling other dispense with the reorganization of Council stand. members to gauge support for a matter that is ing committees through resolution. Resolution council business and/or from committing to vote 05-260 was amended by Resolution 05-260 CDI, to support or to oppose a matter that the Council which limited the chair's powers to the appointment is considering or is reasonably likely to consider. of standing committees only. See id. In a report dated July 28, 2005, the Council's Exec- The fact that the Resolution was introduced by utive Matters and Legal Affairs Committee ex- you and six other council members suggests that plained that the impetus for Resolution 05-260 CDI you and the other council members discussed the was "to take the reorganization of standing commit- Resolution before it was introduced, which, as tees outside the purview of the [S]unshine [L]aw." discussed above, would be a violation of the Sun- shine Law. Even if no discussions occurred, it ap- On August 4, 2005, the OIP responded to Dela pears at a minimum that one council member au- Cruz with a formal opinion letter, OIP Op. Lit. No. thored the Resolution and requested other council 05-015, in which the OIP stated that it had not members to co-introduce the Resolution.... At a changed its position: minimum, by asking whether other council mem- bers were willing to co-introduce the Resolution, While the Sunshine Law allows two council mem- the initiating council member essentially "polled" bus to discuss council business between them- the other council members as to their preliminary selves, the statute does not '5 "115 permit inclinations regarding the proposed reorganiza- either of those council members to then discuss tion of the standing committees. The statute the same council business with any other council clearly does not allow council members to decide members outside of a properly noticed meeting. council business, even if the decision is prelimin- Such serial communication is contrary to the let- ary and subject to change, outside of a properly ter, the intent and the spirit of the statute, noticed meeting. Resolution 05-260 CDI was adopted by the Council The special meeting was held as scheduled, and on August 10, 2005. On September 15, 2005, pur- by a vote of eight to one the Council adopted suant to his new appointment powers vested in Res- Resolution 05-243. olution 05-260 CDI, Dela Cruz reorganized the standing committees. The committees and commit- In a July 19, 2005 letter from Dela Cruz to Kondo, tee members were the some as those previously set Dela Cruz asked the OIP to review a memorandum forth in Resolution 05-243. prepared by the Office of Council Services "summarizing the case law in other jurisdictions On October 3, 2005, Plaintiffs filed their Complaint wherein the courts have determined that serial com- against Defendants. Paragraph 40 of the Complaint munications are not per se prohibited by the applic- (Paragraph 40) described the Council's legal enter- able 'open meeting' law" and to reconsider OIP's pretation of the Sunshine Law: position "that such communications violate HawaiTs 'opening meeting' law, [Hawaii Revised 40. Upon information and belief, the Council Statutes (HRS) ] Chapter 92" (HRS Chapter 92 is presently takes the position that the practice of also referred to as the Sunshine Law). engaging in serial one-on-one communications among Council members regarding a particular On July 22, 2005, Dela Cruz introduced Resolution Council business is not a violation of the Open 05-260 to amend Council Rules to authorize the Meeting Requirements of the Sunshine Law. Council Chair to appoint all committees and, thus, In Count 1, Plaintiffs alleged that the one-on-one ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2. westlaw.conVprint/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 8 of 20 175 P.3d I I I Page 7 117 Hawai'i 1, 175 P.3d 111 (Cite as: 117 Hawai'I 1, 175 P.3d 111) conversations regarding Resolution 05-243 were in (Supp.2006), pertaining to one-to-one communica- violation of the "Open Meeting Requirements of tions; and construe and interpret HRS § 92-2.5(a) in the Sunshine Law" within the meaning of HRS § accordance with law. 92.2(3) (1993). In Count IL Plaintiffs alleged that because the conversations were in violation of the At the December 16, 2005 hearing on Defendants' Sunshine Law, Resolution 05-243 was voidable. First Motion to Dismiss, Defendants argued that Plaintiffs alleged in Count III that pursuant to HRS there was no actual controversy and thus Plaintiffs' § 92-12 (1993), they were entitled to reasonable at- prayer for declaratory judgment must fail. Defend- torney's fees and costs. In their prayer for relief ants asserted that Paragraph 40 of Plaintiffs Com- Plaintiffs sought, among other things, plaint was not a factual allegation and that Plaintiffs and the State were "seeking an advisory [a] declaratory judgment that Defendants' use of a opinion because they want this court to issue a series of private, one-on-one communications to comprehensive ruling on their interpretation of per- reach consensus among a majority of Council mitting interactions under HRS 1 92-2.5(a).- members regarding reorganization of the Coun- Plaintiffs countered that the issues were not moot tit's standing committees or any other matter over because Defendants' actions were "going to be re- which the Council has supervision, control, juris. pealed" and were "matters of the public interest." diction, or advisory power is a violation of FIRS [Chhapter 92. The circuit court ruled from the bench: Defendants filed a motion to dismiss the Complaint I agree with the City that the issue is moot And I on October 24, 2005 (First Motion to Dismiss). The disagree that its [sic] capable of retention thrust of Defendants' argument was that the newly evading review as to the precise point of the se. adopted appointment powers of the Council Chair lection of board officers, that being Resolution mooted the dispute surrounding Resolution 05-243. 05243 adopted on July 12, '05, because by rule amended July 28, 2005 in Resolution •6 •*116 On November 28, 2005, the State of Hawaii (the 05260CD1, the chair was unilaterally empowered State) filed its Motion to Intervene as a Plaintiff be- to appoint all standing committees and their of. cause two state officials, the OIP Director and the ficen. State of Hawaii Attorney General, were "directly responsible for administering and enforcing the It wasn't until October 2005 that the suit was Sunshine Law's provisions." The circuit court gran- filed, by then that issue was moot, but by then led the State's motion on December 8, 2005. they had incorporated paragraph 40 as well as the preliminary allegations and the facts that led to Plaintiffs filed a Motion for Summary Judgment on what is now in evidence as Exhibit 5 [the OIP let- December 5, 2005. Plaintiffs asserted that the ter to Dela Cruz dated August 4, 2005]. Council's interpretation of HRS Chapter 92 was er- roneous; Council members were precluded from And, therefore, I believe that the remainder of the having serial onto-one communications; and complaint is not moot, it remains a continuing Plaintiffs should be awarded their attorney's fees controversy perceived in the complaint and by and costs. the plaintiffs to date to be a point of view that the Council may not actually have but still deserves The State filed its Complaint-in-Intervention on to be litigated, that each and every form of busi- December 14, 2005. The State asked the circuit ness which is acknowledged to be under the rule court to reject Defendants' mootness defense; reject can allow a serial communication. Defendants' interpretation of HRS § 92-2.5(a) 9 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 9 of 20 175 P.3d 111 Page 8 117 Hawaii 1, 175 P.3d 111 (Cite as: 117 Hawaii 1,175 P.3d 111) On January 6, 2006, Plaintiffs amended thew Mo- On March 13, 2006, Plaintiffs filed a motion for at- tion for Summary Judgment to reflect the circuit tomey's fees and costs, in which Plaintiffs sought court's ruling from the bench that the only remain- $41,353.14 in fees and $1,378.60 in costs. Defend- ing issue pertained to Defendants' interpretation of ants opposed the motion. On April 17, 2006, the the Sunshine Law. The State filed a joinder in circuit court awarded Plaintiffs their costs in full, Plaintiffs' Motion for Summary Judgment. but as to the requested attorney's fees, the court found that Defendants filed a second motion to dismiss the Complaint (Second Motion to Dismiss) on January Plaintiffs are awarded $10,338.29 in attorney's fees. 12, 2006 on the grounds that the circuit court The Court finds the hourly rate of Plaintiffs' lacked subject matter jurisdiction because Plaintiffs counsel and the number of hours expended reas- did not meet the elements of HRS § 92-12(c) onable. However, the work performed by (1993) and Plaintiffs lacked standing because they Plaintiffs' counsel is divisible between the moot failed to allege an actual or threatened injury re- issues and those litigated to judgment, the latter garding Defendants' position on the Sunshine Law. being approximately twenty-five percent (25%) Defendants argued that the "fact that [Defendants of the total amount of work performed. Thus, have] a position regarding the Sunshine Law does Plaintiffs are awarded twenty-five percent (25%) not provide the [circuit court with] jurisdiction over of their total fees, or $10,338.29. Plaintiffs' claim regarding [Defendants'] position regarding the Sunshine Law." On January 18, 2006, On April 20, 2006, the circuit court denied Defend- Defendants filed a motion to dismiss the State's ants' Second Motion to Dismiss. The circuit court, Complaint-in-Intervention for similar reasons. on May 26, 2006, entered its Final Judgment, which declared in part that 'HRS § 92-2.5 does not permit On January 24, 2006, the circuit court issued its or- members of the Honolulu City Council to engage in der granting in pan and denying in part Defendants' serial communications regarding matters of Council First Motion to Dismiss. The circuit court con- business except to the extent allowed under subsec- cluded that Defendants' "actions relating to Resolu- tions (b) or (c) of HRS § 92.2.5."Defendants and tion No. 05-243, which set forth the Council's cur- Plaintiffs timely filed their respective notice of ap- rent committee structure, and subsequent actions re- peal and notice of cross-appeal. lating to the Council's selection of its standing com- mille= and Committee officers are moot" The cir- cuit court denied the motion "to the extent that **117 07 II. there is a continuing controversy as set forth in paragraph 40 of the Complaint and [the Oll? letter On appeal, Defendants contend the circuit court erred to Dela Cruz dated August 4, 2005]." (1) in not granting in full, pursuant to the moomess On February 17, 2006, the circuit court granted doctrine, their First Motion to Dismiss; Plaintiffs' amended Motion for Summary Judgment, holding that HRS § 92-2.5 (Supp.2006) did not per- (2) in denying their Second Motion to Dismiss be- mit Council members to engage in serial commu- cause Plaintiffs lacked standing; and nications regarding matters of Council business ex- cept to the extent allowed under HRS § 92-15(b) (3) in granting Plaintiffs' Motion for Summary and (c) (Supp.2006). Judgment because the Council members were per- mitted to engage in one-on-one communications as All parties stipulated on March 6, 2006 to the dis- a matter of law. missal of the State's Complaint-in-Intervention. ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/prinL/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 Q Page 10 of 20 175 P.3d I I I Page 9 117 Hawaii 1, 175 P.3d I 1 I (Cite as: 117 Hawai'i 1,175 Pad 111) On cross-appeal, Plaintiffs contend the circuit court omitted, bracketed material added). (1) erred in failing to apply the proper analysis in examining Plaintiffs' request for attorney's fees and B. Standing (2) abused its discretion in refusing to award attor- 131 "Whether the circuit court has jurisdiction to ney's fees for issues that were rendered moot hear the plaintiffs' complaint presents a question of through the affirmative actions of Defendants. law, reviewable de nova. A plaintiff without stand- ing is not entitled to invoke a court's jurisdiction. Thus, the issue of standing is reviewed de now on 111• appeal." Hawaii Med Assn v. Hawaii Med. Serv. Assn, Inc., 113 Hawaii 77, 90. 148 P.3d 1179. 1192 (2006) (quoting Motel v. Miyahira. 95 Hawaii A. Motions to Dismiss for Lack of Jurisdiction 381, 388, 23 P.3d 716,723 (2001)). [1](2) A trial court's grant or denial of a motion to dismiss for "lack of subject matter jurisdiction is a C. Motion for Summary Judgment question of law, reviewable de now." Morris x Hawaiian Airlines. Inc.. 74 Haw. 235, 239. 842 We review the circuit court's grant or denial of P.2d 634, 637 (1992), qp'd, Hawaiian Airlines, Inc. summary judgment de novo. Hawaii C(m/ty/.1 v. Norris, 512 U.S. 246, 114 S.Ct. 2239. 129 Fed[.] Credit Union Y. Keka, 94 Hawaii 213, L.Ed.2d 203 (1994). In Norris, the Hawaii Su- 221, 11 P.3d I. 9 (2000). The standard for grant- preme Court adopted the view of the Ninth Circuit ing a motion for summary judgment is settled: Court of Appeals in Love v. United Stares, 871 F.2d 1488, 1491 (9th Cir.1989), opinion amended on Slummary judgment is appropriate if the plead- other grounds and superseded by Love Y. United ings, depositions, answers to interrogatories, States. 915 F.2d 1242 (9th Cir.1999), that: and admissions on file, together with the affi- davits, if any, show that there is no genuine is- review of a motion to dismiss for lack of subject sue as to any material fact and that the moving matter jurisdiction is based on the contents of the party is entitled to judgment as a matter of law. complaint, the allegations of which we accept as A fact is material if proof of that fact would true and construe in the light most favorable to have the effect of establishing or refuting one the plaintiff. Dismissal is improper unless it ap- of the essential elements of a cause of action or pears beyond doubt that the plaintiff can prove no defense asserted by the parties. The evidence set of facts in support of his claim which would must be viewed in the light most favorable to entitle him to relief. the non-moving party, In other words, we must view all of the evidence and the inferences Norris, 74 Haw. at 240, 842 P.2d at 637 (internal drawn therefrom in the light most favorable to quotation marks, citation, and brackets omitted.) the party opposing the motion. However, when considering a motion to dismiss pursuant to [Hawai'i Rules of Civil Procedure] Id. (citations and internal quotation marks omitted). Rule 12(b)(1) the trial court is not restricted to the face of the pleadings, but may review any evidence; "118 *8 Zane Y. Libem, Mur. Fire his. Co.. 115 such as affidavits and testimony, to resolve factual Hawai'i 60, 72-73, 165 P.3d 961, 973-74 (2007) disputes concerning the existence of jurisdiction." (quoting Querubi n v. 77nronas. 107 Hawaii 48. Norris, 74 Haw, at 240, 842 P.2d at 637 (internal 56, 109 P.3d 689, 697 (2005)). quotation marks, citation, and brackets in original ® 2009 Thomson Reuters/WesL No Claim to Orig. US Gov. Works. http://web2.westlaw.conVprint/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 O O Page II of 20 175 P.3d I I I Page 10 117 Hawaii I, 175 P.3d I I I (Cite as: 117 Hawaii 1, 175 P.3d 111) D. Attomey's Fees and Costs a) case is moot where the question to be determ- irted is abstract and does not rest on existing [4] The grant and/or denial of attorney's fees is re- facts or rights. Thus, the mootness doctrine is viewed by this court for an abuse of discretion. properly invoked where "events have so af- Mari Tomorrow Y. State of Hawaii. Bd. of Laud d fected the relations between the parties that the Natural Res.. 110 Hawai'i 234. 242, 131 P.3d 517, two conditions for justiciability relevant on ap- 525 (2006). Abuse of discretion arises when the tri- peal-adverse interest and effective remedy- al court "bases its ruling on an erroneous view of have been compromised." the law or on a clearly erroneous assessment of the evidence. In other words, an abuse of discretion oc- Carl Corp. v. Stare, Dept. Of Educ.. 93 Hawai'i curs where the trial court has clearly exceeded the 155. 164, 997 P.2d 567, 576 (2000) [hereinafter, bounds of reason or disregarded rules or principles "CARL It") (quoting In re Application of of law or practice to the substantial detriment of a Thomas. 73 Haw. 223, 226, 832 P.2d 253, 254 party litigant." Id. (internal quotation marks, tits- (1992) (quoting Wong v. Bd. of Regents. Uni- tions, and brackets omitted). versity of Hatvai'i, 62 Haw. 391, 394. 616 P.2d 201.203-04 (1980))). IV. Okada Trucking Co., Ltd. Y. Bd. of Water Supply, 99 Hawaii 191, 195-96, 53 P.3d 799. 803-04 (2002).A" A. The circuit court did not err in partially denying Defendants' Filet Motion to Dismiss. FN4. Hawaii appellate courts have em- ployed the two-pronged standard, which [5] The Hawaii Supreme Court has required a case originated in Wong v. Baird of Regents, to remain continually viable to avoid mootness: University of Hawaii. 62 Haw. 391, 616 P.2d 201 (1980), more extensively. See A case is moot if it has lost its character as a Diamond v. State of Hawai'i, Bd. of Land present, live controversy of the kind that must ex- and Natural Res.. 112 Hawai'i 161. 145 ist if courts are to avoid advisory opinions on ab- P.3d 704 (2006); Lathrop Y. Sakalani. I 1 I stract propositions of law. The rule is one of the Hawaii 307, 141 P.3d 480 (2006); City prudential rules of judicial self-governance foun- and County, of Hatohdu Y. Hsiung. 109 ded in concern about the proper-and properly Hawaii 159, 180, 124 P.3d 434. 455 limited-role of the courts in a democratic society. (2005); Hac Y. Unix of Hawai'f. 102 We have said the suit must remain alive Hawaii 92, 99-100, 73 P.3d 46. 53-54 throughout the course of litigation to the moment (2003); McCabe, Hamilton & Rengv Co., of final appellate disposition to escape the moot- Ltd. v. Cluarg, 98 Hawaii 107. 116. 43 ness bar. P.3d 244, 253 (App.2002) (referring to the two-pronged standard as "well estab- Kemp Y. State of Hmsai'i Child Support Enforce- lished"); In re Doe Children. 105 Hawaii ment Agency, I I I Hawaii 367, 385, 141 P.3d 38, 56-58, 93 P.3d 1145, 1163-65 (2004); 1014, 1032 (2006) (quoting Kona Old Hawaiian AIG Hawaii Ins. Co. Y. Bateman. 82 Trails Group r% Lyman, 69 Haw. 81, 87. 734 P.2d Hawaii 453, 458-59. 923 P.2d 395. 161, 165 (1987)). 400-01 (1996); Exit Co. Ltd. P'ship v. Air- lines Capital Corp.. Inc., 7 Haw.App. 363. [6) The Hawaii Supreme Court has articulated the 766 P.2d 129 (1988). moomess doctrine in more concrete terms, stating that A 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 Q O Page 12 of 20 175 P.3d I I I Page 11 1 17 Hawaii 1, 175 P.3d 111 (Cite as: 117 Hawaii 1, 175 Pad 111) The two formulations of the mootness where "a prohibited act occurs." doctrine are not mutually exclusive and can be read together. For example, in [7] In this case, Plaintiffs alleged in par that De- Maltiai v. Stnva. 69 Haw. 349. 354-55, ferdants violated the Sunshine Law while deliberat- 742 P.2d 359. 365 (1987), the Hawaii ing Resolution 05-243. Plaintiffs also alleged that Supreme Court uses both the two-prong Defendants' practice, of having one-on-one conver- approach in Wong and the formulation in sations (as exemplified while deliberating Resolu- Kona Old Hawaiian Trails Croup v. Ly- tion 05-243) violated the Sunshine Law. Based on man, 69 Haw. 81. 87, 734 P.2d 161, 165 the occurrence of this "prohibited act," Plaintiffs (1987), to articulate the mootness doc- asked the circuit court to determine the applicabil- trine. ity of HRS § 92-2.5(a) to future discussions and de- liberations of the public body involving the same Defendants contend the circuit tour's dismissal of practice. While the specific substantive issue was claims relating to Resolution 05-243 mooted the re- unlikely to occur again, the circuit court correctly maining allegation that the practice of serial one- found that the practice was likely to m=ur. The on-one communications violated the Sunshine Law. circuit corm, therefore, did not err in hearing Defendants argue that without addressing the chal- Plaintiffs' suit as to the allegations that Defendants' lenges to Resolution 05-243, "the circuit court, by conduct relating to Resolution 05-243 violated the entertaining [Plaintiffs'] arguments in the Sunshine Law, since several exceptions to the [Motion*9 '*119 for Summary Judgment] Order is- mootness doctrine apply hem sued an advisory opinion in a factual vacuum." [8] A public-interest exception to the moomess doc- Lawsuits alleging violations of the Sunshine Law trine arises "[w]hen the question involved affects are authorized by HRS § 92-12: the public interest[ ] and it is likely in the nature of things that similar questions arising in the future § 92-12 Enforcement. would likewise become moot before a needed au- thoritative determination by an appellate court [.1" Johnston Y. Ing, 50 Haw. 379. 381. 441 P.2d 138, 140 (1968). "Among the criteria considered in de- (c) Any person may commence a suit in the cir- termining the existence of the requisite degree of cuit court of the circuit in which a prohibited act public interest are the public or private nature of the occurs for the purpose of requiring compliance question presented, the desirability of an authoritat- with or preventing violations of this part or to de- ive determination for the future guidance of public termine the applicability of this part to discus- officers, and the likelihood of future recurrence of sions or decisions of the public body. The court the question." Id. (quoting In re Brooks' Estate. 32 may order payment of reasonable attorney fees 111.2d 361, 364, 205 N.E.2d 435. 438 (1965)), ac- and costs to the prevailing party in a suit brought cord Okada Trucking. 99 Hawaii at 196.97. 53 under this section. P.3d at 804-05. In other words, HRS § 92-12(c) authorizes circuit The instant case, if moot, would nevertheless meet courts to compel a public body to comply with the the public-interest exception. Plaintiffs challenged a Sunshine Law, prevent a public body from violating series of one-on-one conversations among the the Sunshine Law in the future, or determine Council members made in anticipation of an up- whether the Sunshine Law applies to the coming resolution. Whether these conversations vi- "discussions or decisions of the public body" so olated the Sunshine Law is obviously a question of long as the claimant brings the suit in the circuit a public nature. The requirement that the Council m 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?sv=Split&prft=HTU LE&fn=_top&mt=H... 6118/2009 0 0 cage u or to 175 P.3d 111 Page 12 117 Hawal'i 1, 175 P.3d I I I (Cite as: 117 Hawai'i 1,175 P.3d 111) conduct its business in full view of the public and B. PlaintifB had standing to enforce alleged viol. in compliance with the Sunshine Law is certainly attons of the Sunshine Law pursuant to HRS § more public in nature than private. An authoritative 92.12(c). determination of this issue for future guidance of Council members is highly desirable and consistent M) Defendants next contend that Plaintiffs lacked with the strong public policy of protecting the pub. standing to continue and thus the circuit court erred lie's right to know. Finally, baud on the Council's in denying Defendants' Second Motion to Dismiss. stated position on serial communications, it is likely Defendants are mistaken. that the conduct here will reoccur and this issue will arise again. Okada Trucking, 99 Hawai'i at As the Hawaii Supreme Court explained, the gen- 196-97, 53 P.3d at 804-05. eral standing requirements do not apply to plaintiffs enforcing the Sunshine Law: (9][I0) Another exception to mootness arises when the case is capable of repetition, yet evades review. HRS § 92-12 gives [the plaintiff) standing as a Plaintiffs' position is that this case demonstrates "private attorney general," inasmuch as he is a that future serial one-on-one communications "person upon whom the legislature has conferred among Council members regarding Council busi- the right to seek judicial review...." Ordinarily, ness is not only capable of occurring again, but statutes require "economic injury" rather than likely to occur again. Because these communica- mere concern for the "public interest" as a pre- tions are not open to the public, they may very well dicate to standing to sue as a "private attorney evade review. We conclude that this exception to general." But in the case of HRS § 92-12, "any the mootntess doctrine applies as well. person" is expressly authorized to initiate a law- suit. upon the allegation that "a prohibited act" The circuit court, in denying the First Motion to has occurred in violation of HRS 92-1 through Dismiss, found that there was an ongoing contra 92-13, in order to enforce compliance with or de- versy because the Council took the position that termine the applicability of the Sunshine Law[.) one-on-one communications were not precluded in all contexts. The *10 *'120 circuit court appeared Kaopnr v. Aloha Tower Dev. Corp., 74 Haw. 365, to conclude that it could consider the issue of one- 380-81, 846 P.2d 882, 889 (1993) (citations and on-one communications without referring to the brackets omitted). These relaxed standing require. factual context in which this dispute arose. ments were consist= with the policy declaration in However, we conclude the correct application of HRS § 92-1 (1993). HRS § 92.12 clearly and un- the moomess doctrine-including the exceptions to ambiguously entitles "any person" to "commence a that doctrine-requires the issue to be considered in suit in the circuit court of the circuit in which a pro- the factual context of the original dispute. In other hibited act occurs," regardless of the person's parti- words, the Council's position provides support for cipadon in any proceeding. Such a construction of the conclusion that the dispute about the procedure HRS § 92-12 is consistent with the legislature's employed in considering Resolution 05-243 is cap. "declaration of policy and intent," set forth in HRS able of repetition, but evading review. It does not, § 92-1 (1985), "that the formation and conduct of standing alone, create a justiciable dispute. In any public policy-the discussions, deliberations, de- event, although the circuit court relied on incorrect cisions, and action of governmental agencies-shall reasoning, we conclude that it reached the correct be conducted as openly as possible" in order "to result in denying the First Motion to Dismiss and protect the people's right to know[.]" accordingly proceed to consider the remaining is- Kaapu. 74 Haw. at 383. 846 P.2d at 889-90 sues. (brackets in original omitted); see also Richard v. Metcalf. 82 Hawaii 249, 254 n. 9, 921 P.2d 169. ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2. wcstlaw.con-/print/printstream.aspx?sv=Split&prft=HTMLF-&fn=_top&mt=H... 6/18/2009 O Page L4 of ZU 175 P.3d I I I Page 13 117 Hawai'i 1, 175 P.3d I 1 I (Cite as: 117 Hawai'I 1,175 P.3d 111) 174 n 9 (1996). which is created by constitution, statute, rule, or executive order, to have supervi- In their Complaint, Plaintiffs invoked standing and lion, control, jurisdiction or advisory jurisdiction pursuant to HRS 1 92-12(c) and alleged power over specific matters and which is in paragraph 45 that required to conduct meetings and to take official actions." HRS 1 92-2(1) (1993). A five or more Council members participated in a "meeting" means "the convening of a series of private, one-on-one conversations re- board for which a quorum is required in or- garding, among other matters, the proposed reor- der to make a decision or to deliberate to- ganization of the Council's standing committees; ward a decision upon a matter over which the membership of the standing committees under the board has supervision, control, jurisdic- the proposed reorganization; their support or op- tion, or advisory power." HRS 1 92-2(3) position to the proposed reorganization; and their (1993). Defendants do not dispute that the willingness to introduce a resolution to imple- Council is a "board" and that when the ment the proposed reorganization. Council gathers to adopt resolutions, as it did with Resolution 05-243, the Council This conduct, according to the Complaint, holds a "meeting." We note that a majority "constitute(d) a violation of the Open Meeting Re- of the members of the Council were al- quirements of the Sunshine Law," which occurred leged to have participated in the serial in the circuit in which this suit was brought, communications regarding Resolution Plaintiffs, as a "private attorney general," had 05-243 that are the subject of this lawsuit. standing to present this case to determine the ap- Thus, we do not resolve the question of plicability of the Sunshine Law to this conduct and whether the Sunshine Law would have to seek a declaration that it violated the Sunshine been violated had fewer than five Council Law. Accordingly, the circuit court did not err in members, i.e., fewer than the number denying the Council's Second Motion to Dismiss needed to constitute a quorum of the Coun- for want of jurisdiction. cil, participated in those serial discussions. The opewmeetings requirement is not unlimited. C. The circuit court did not err in granting sum- SeeHRS if 92-3.1 (Supp.2006); 92-4; and 92-8 mary judgment in favor of Plaintiffs. (Sapp.2006). In addition to these exceptions, HRS § 92-25 excludes "permitted interactions of mem- [12J Under the open-meetings requirement of the bers" from the general rule. Sunshine Law, "(e)very meeting *11 **121 of all boards ms shall be open to the public and all per- 1 92-25 Permitted Interactions of members,(a) sons shall be permitted to attend any meeting unless Two members of a board may discuss between otherwise provided in the constitution or as closed themselves matters relating to official board busi- pursuant to sections 92.4 [19931 and 92-5 ness to enable them to perform their duties faith- [Supp.2006]." FIRS § 92-3 (1993) (footnote not in fully, as long as no commitment to vote is made original). This "provision [ ) requiring open meet- or sought and the two members do not constitute ings shall be liberally construed" while "provisions a quorum of their board. providing for exceptions shall be strictly con- swed against closed meetings." HRS 1921. FNS. A "board" constitutes "any agency, (f) Communications, interactions, discussions, in- board, commission, authority, or commit- vestigations, and presentations in this section are tee of the State or its political subdivisions ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Worts. http://web2.westlaw.conVprint/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 O Page 15 of 20 175 P.3d I I 1 Page 14 1 17 Hawaii I, 175 P.3d 111 (Cite as: 117 Hawal'i 1, 175 P.3d 111) not meetings for purposes of this part. cumvem the spirit or requirements of (the Sun- shine law] to make a decision or to deliberate to. Defendants assert that because HRS § 92.25(a) ward a decision upon a matter over which the does not limit the number of these one-on-one in- board has supervision, control, jurisdiction, or teractions, nothing "prohibits one-on-one converse- advisory power. tions from being serial, that is, after leaving one conversation, a Councilmember [sic] could engage Stated differently, when the public body engages in another Councilmember [sic] in a discussion re- conduct that may not violate any of the specific garding matters relating to official board business." provisions in HRS 92-1 through 92-13 (1993), but nevertheless "circumvents the spirit or require- Although HRS § 92-25(a) does not expressly pre- ments" of the Sunshine Law, that conduct is imper- clude Council members from engaging in serial missible. We are left with the question of whether one-on-one conversations, HRS § 92-5(b) the serial one-on-one interactions used to (Supp.2006) provides support for concluding that deliberate*12 **122 on Resolution 05-243 the one-on-one communications used to deliberate "circumvent[ed] the spirit" of the Sunshine Law. on Resolution 05-243 were improper rs- . FN6. Defendants' argument that there is no As the Hawaii Supreme Court recently observed: conflict between HRS $ 92-25(a) First, the fundamental starting point for statutory (Supp.2006) and HRS $ 92-5(b) interpretation is the language of the statute itself. (Supp.2006) because the individual Coun- Second, where the statutory language is plain and cil members declared under oath in their unambiguous, our sole duty is to give effect to its declarations attached to Defendants' op- plain and obvious meaning. Third, implicit in the position memorandum to Plaintiffs' Motion task of statutory construction is our foremost ob- for Summary Judgment that the members ligation to ascertain and give effect to the inten- did "not take the position that he or she can tion of the legislature, which is to be obtained have unlimited one-once communica- primarily from the language contained in the stat- tions with other Council members in all ute itself. Fourth, when there is doubt, doubleness circumstances regarding council business" of meaning, or indistinctiveness or uncertainty of is unconvincing. The issue here is whether an expression used in a statute, an ambiguity ex- one Council member may communicate ists. with another member about a particular item of Council business and then do the Citizens Agabrst Reckless Dry. v. 76rdn8 Bd. of Ap. same with other Council members until peals of the City and Counry of Honolulu. 114 members constituting a quorum have parti- Hawaii 184. 193-94, 159 P.3d 143. 153-53 (2007) cipated in the serial one-on-one commu- (quoting Peterson v. Hawaii Elec. Ligirt Co., inc.. nications. We fail to see how these swom 85 Hawaii 322, 327-28, 944 P.2d 1265, 1270.71 declarations absolve this court from de- (1997), superseded on other grounds byHRS § termining the question presented. 269-155 (Supp.1999)). $ 92-5 Exceptions. The phrase "circumvent the spirit" of the Sunshine Law is far from plain and unambiguous. Thus, to ascertain the legislature's intent, this court should turn to the policy declaration in HRS § 92-1. It is (b) No chance meeting, permitted interaction, the policy of our state that "the formation and con- or electronic communication shall be used to cir- duct of public policy-the discussions, deliberations, O 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2. westlaw.conVprint/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6118/2009 O Page 16 of 20 175 P.3d I I I Page 15 117 Hawai'i 1, 175 P.3d 111 (Cite as: 117 Hawaii 1, 175 P.3d 111) . decisions, and action of governmental agencies- petitive in content, in rapid-fire seriatim and of shall be conducted as openly as possible," M § such obvious official portent, resulted in six de 92-1 (emphasis added). facto meetings by two or more members of the board at which official action was taken," and "(a]s When Council members engaged in a series of one- a consequence, the discussions were in contraven. on-one conversations relating to a particular item of tion of the Sunshine Law'j; Sacramento Newspaper Council business (the council resolution in this Guild v. Sacramento County Bd. of Supervisors, case), the spirit of the open meeting requirement 263 Cal.App.2d 41, 50, 69 Cal.Rptr. 480. 487 was circumvented and the strong policy of having (1968) ("An informal conference or caucus permits public bodies deliberate and decide its business in crystallization of secret decisions to a point just view of the public was thwarted and frustrated. short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference ex- Courts that have examined the issue of serial com- cept to conduct some pan of the decisional process munication have concluded, as did OIP in this case, behind closed doors. Only by embracing the col- that serial communications such as those in which lective inquiry and discussion stages, as well as the Council members engaged while deliberating Res- ultimate step of official action, can an open meeting olution 05-243 violate open meetings laws similar regulation frustrate these evasive devices."); Jones to Hawai'i's Sunshine Law. See, e.g., Del Papa v. v. Tmrzler. 238 So.2d 91, 93 (Fla. 1970) ("statute Bd of Regents of the Unitt and Community Callege should not be circumvented by small *13 **123 Sys. of Nev., 114 Nev. 388, 400, 956 P.2d 770, 778 individual gatherings wherein public officials (1998) (holding that serial electronic communica- may reach decisions in private on matters which tions used to deliberate toward a decision violated may foreseeably affect the public"). open meetings law and "if a quorum is present, or is gathered by serial electronic communications, the Furthermore, another well-established rule of stat- body must deliberate and actually vote on the mat- utory construction is that "where an administrative ter at a public meeting; Stare as reL Cincinnati agency is charged with the responsibility of carry- Post v. City of Cincinruu4 76 Ohio St.3d 540. 544, ing out the mandate of a statute which contains 668 N.E.2d 903, 906 (1996) ("The Ohio Sunshine words of broad and indefinite meaning, courts ac. law cannot be circumvented by scheduling back- cord persuasive weight to administrative construc- to-back meetings which, taken together are attended don and follow the same, unless the construction is by a majority of a public body."); Booth Newspa- palpably erroneous." Aio Y. Hantado. 66 Haw. 401, pers. Inc. v. Wti»tning City Catotcif, 168 Mich.App. 407, 664 P.2d 727, 731 (1983) (quoting Treloor r: 459, 471. 425 N.W.2d 695, 700 (1988) (Open Swlnerion & Wa/berg Co., 65 Haw. 415, 424, 653 Meetings Act was violated where council members P.2d 420. 426 (1982)); accord Haole Y. State q/ met privately in separate meetings because total Hawai'L 111 Hawaii 144, 150. 140 P.3d 377, 383 number of participating members constituted a (2006). quorum even though less than a quorum particip- ated in each meeting); Stockton Newspapers. lac. v. The OIP is the agency charged with the responsibil. Members of the Redev. Agency of Stockton. 171 ity of administering the Sunshine Law and respond- Cal.App.3d 95, 98, 214 Cal.Rpir. 561. 562 (1985) ing to its alleged violations. HRS § 92-1.5 ("a series of telephone contacts does constitute a (Supp.2006). Kondo's interpretation in the formal meeting within" California's public meeting law); opinion dated August 4, 2005 is not "palpably erro- Blackford v. SOL Bd. of Orange Comity. 375 So.2d neous" as applied to the conduct of Council mem- 578, 580 (PIa.Dist.CLApp.1979) (holding that "the bers while deliberating Resolution 05-243. scheduling of six sessions of secret discussions, re- For these reasons the circuit court did not err in O 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?sv=Split&prft=HTMLE&fn _top&mt=H... 6/18/2009 O O Page 17 of 20 175 P.3d I 1 I Page 16 1 17 Hawaii I, 175 P.3d I I I (Cite as: 117 Hawaii 1,175 Pad 111) granting summary judgment in favor of Plaintiffs, side the purview of the Sunshine Law. Most fatal although it did err in the scope of the declaratory to their argument, however, is the fact that there judgment that it issued. The Final Judgment is no discernible method of apportioning between provided that "declaratory judgment is hereby the jeer incurred on the moored claims and the entered declaring that HRS § 92-25 does not fees incurred on the claims upon which Plaintiffs permit members of the Honolulu City Council to prevailed. The research and drafting performed engage in serial communications regarding matters by counsel for Plaintiffs was all connected to rile of Council business except to the extent allowed core issue of the permissibility of serial commu- urder subsections (b) or (c) of HRS § nicatioar. 92-2.5."However, as we noted above, this dispute must be considered in the specific factual context in (Emphasis added.) Plaintiffs concede that they did which it arose. Thus, we vacate the Final Judgment not address "the particulars of the Schefke/Hetsley and remand with direction to the circuit court to analytical framework," but contend that because enter a judgment that provides that "declaratory they objected to the circuit court's apportioning judgment is hereby entered declaring that FIRS § between mooted issues and the one issue litigated, 92-2.5 did not permit members of the Honolulu they sufficiently raised the argument to the circuit City Council to engage in serial communications court. involving a quorum of Council members in deliber- ating Resolution 05-243." Plaintiffs contend the circuit court erred because it failed to undergo the SchefkdHensley analysis. Plaintiffs at no time, either in their initial request or D. The circuit court erred in failing to apply the in their motion to reconsider, argued in the circuit proper analytical framework to Plaintiffs' re- court that they were entitled to the amount reques- quest for attorney's fees and costs. ted based on the ScheJke/Hens/ay14 0+724 analys. is. The argument that the circuit court erred in fail. Plaintiffs argue that the circuit court erred by not ing to undergo the Schefke/Hensley analysis is awarding them all of their attorney's fees and the presented for the first time on appeal. court failed to undergo the analysis in ScheJke v. Reliable Collection Agency, Ltd.. 96 Hawaii 408, [131 "Legal issues not raised in the trial court are 445, 32 P.3d 52, 89 (2001) (incorporating the ana- ordinarily deemed waived on appeal." Assoc. of lysis in Hensley Y. Eckerhart. 461 U.S. 424, 103 Apartment Owners of Wai[ea Ehta Y. Wailea Resort S.CL 1933. 76 L.Ed.2d 40 (1983)), which was ne- Co., Ltd., 100 Hawaii 97. 107, 58 P.3d 608, 618 cessary to determine "the relationship between the (2002); see also State v. Moses, 102 Hawaii 449. dismissed claims and the claim that Plaintiffs suc- 456, 77 P.3d 940. 947 (2003) (explaining purpose cessfully litigated to judgment" Defendants of general rule is to "prevent[ 1 appellants from counter that although Schefke and Hensley were presenting new legal theories as to why they should cited in Plaintiffs' request for fees, the cases were have prevailed at trial"). not cited for this argument. Plaintiffs respond by pointing to their reply memorandum in support of The Hawaii Supreme Court has acknowledged that their motion for attorney's fees: the general rule of waiver is not absolute: tilt is fundamentally unfair to reward Defendants Me have also said that the rule is not inflexible with a reduction in Plaintiffs' fee award for their and that an appellate court may deviate and hear conduct that mooted some of Plaintiffs' claims- new legal arguments when justice requires. We conduct that did not remedy any violations, but also stated that in the exercise of this discretion merely took some future Council decisions out- an appellate court should determine whether the A 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2. westlaw.cornJprint/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 18 of 20 175 P.3d I I I Page 17 1 17 Hawaii 1, 175 P.3d I I I (Cite as: 117 Hawai'i 1, 175 P.3d 111) consideration of the issue requites additional P.3d at 88 (internal quotation marks, citation, and facts, whether the resolution of the question will brackets omitted). affect the integrity of the findings of fact of the trial court, and whether the question is of great The supreme court further observed that "the fees public import. awarded were calculated on the number of hours [Schefke's] counsel spent on the entire case. Id. at 456-57, 77 P.3d at 947-48 (quoting Piyioka Y. However, under the statutes, fees are to be awarded Kam. 55 Haw. 7. 9. 514 P.2d 568, 570 (1973) only on those claims on which [Schefke] pre- (exception applied to argument challenging consti- vailed." Id. at 444.32 P.3d at 88 (footnote omitted). tutionality of statute limiting actions against certain defendants because no facts were at issue, no new The Hawaii Supreme Court then turned to the ana- facts were needed, and constitutionality of statute lysis set forth in Hensley: was "of great public import")). In Hans/ay v. Eckeiharr, 461 U.S. 424. 103 S.D. Plaintiffs' request for attorney's fees calls for no ad- 1933, 76 L.Ed.2d 40 (1983), the United States ditional facts. Resolving this question will not af- Supreme Court addressed the issue of "whether a fect the integrity of the findings of fact of the cir- partially prevailing plaintiff may recover an attor- cuit court, and the question is of great public import ney's fee for legal services on unsuccessful in that the "main purpose behind HRS 4 92-12(c) claims." Id. at 426, 103 S.Ct. [at 1935-361. Ac- was to encourage citizens to pursue claims of viola- cording to Hensley, the trial court must determine tions of the [S]unshine [L]aw;" Kahana Sasser (1) whether or not unsuccessful claims are related Owners Assn v. Maid Coamy Council. 86 Hawaii to successful claims, see id. at 434, 103 S.CL [at 132, 136n. 4.948 P.2d 122, 126 n. 4 (1997). 1940], and (2) whether or not "the plaintiff achieved a level of success that makes the hours In Schefke, Schefke alleged several claims against reasonably expended a satisfactory basis for mak- various defendants, 96 Hawaii at 417, 32 P.3d at ing a fee award." Id. Unsuccessful claims are 61, and was successful on some, but not all, of his deemed unrelated if they are "distinctly different claims. Id. at 419. 32 P.3d at 63. Schefke, pursuant claims for relief that are based on different facts to statute, sought attorney's fees for the work spent and legal theories." Id Thus, "even where the on the entire case as well as an enhancement. Id. claims are brought against the same defendants, The trial court awarded fees for all the work per- counsel's *15 e'125 work an one claim may be formed without dividing the successful claims from unrelated to his or her work on another claim; unsuccessful ones. Id at 443. 32 P.3d at 87. id. at 43435, 103 S.Ct. [at 19401,"work on such Schefke filed a cross-appeal, alleging that the trial an unsuccessful claim cannot be deemed to have court ened in failing to enhance the award. Id. been expended in pursuit of the ultimate result achieved," id at 435, 103 S.Ct. [at 19401, and The Hawaii Supreme Court first observed that "the hours spent on the unsuccessful claim should awards of attorney's fees were usually part of be excluded in considering the amount of a reas- "causes of action that include provisions for attor- onable fee." Id. at 440, 103 S.Ct. [at 1943]. ney's fen-typically characterized as being reason- able in amount-to be awarded to the prevailing On the other hand, if "the plaintiffs claims for re- party," id at 444 n. 76, 32 P.3d at 88 n. 76 (internal lief involve a common core of fats or are based quotation marks and citation omitted), and, thus, on related legal theories and much of counsel's .an exception to the American Rule, which time is devoted generally to the litigation as a provides that each party is responsible for paying whole, making it difficult to divide the hours ex- his or her own litigation expenses" Id at 444, 32 pended on a claim-by-claim basis." id. at 435. 9 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTNfl-E&fn=_top&mt=H... 6/18/2009 0 0 Page 19 of 20 175 P.3d 11 I Page I8 ]17 Hawai'i 1, 175 P.3d I I I (Cite as: 117 Hawai'l 1, 175 P.3d 111) 103 S.Ct [at 19401."such a lawsuit cannot be time spent on the entire case; however, Plaintiffs viewed as a series of discrete claims." Id. In that prevailed on some, but not all, of their claims. Nev- situation, "a plaintiff who has won substantial re- ertheless, Plaintiffs were entitled to an award of lief should not have his or her attorney's fee re- reasonable attorney's fees pursuant to HRS § duced simply because the trial court did not adopt 92.12(c) ( "The court may order payment of reason- each contention raised." Id. at 440, 103 S.Ct. [at able attorney fees and costs to the prevailing party 19431• in a suit brought under this section."). To determine whether reasonable attorney's fees in this action in- As to the required level of success, "where a cluded compensation for successful as well as un- plaintiff has obtained excellent results, his or her successful claims, the circuit court should have de- attorney should recover a fully compensatory termined (I) whether the unsuccessful claims were fee" because "litigants in good faith may raise al- sufficiently related to the successful ones and (2) temative legal grounds for a desired outcome, whether Plaintiffs achieved a level of success that and the court's rejection of or failure to reach eer. made the hours reasonably expended a satisfactory tain grounds is not a sufficient reason for redu. basis for making a fee award. cing a fee." Id. at 435, 103 S.Ct [at 19401. "If, on the other hand, a plaintiff has achieved only par- The circuit court found "the hourly rate of tial or limited success, the product of hours reas- Plaintiffs' counsel and the number of hours expen- onably expended on the litigation as a whole ded reasonable," but found "the work performed by times a reasonable hourly rate may be an excess- Plaintiffs' counsel was divisible between the moot ive amount even where the plaintiffs claims were issues and those litigated to judgment, the latter be- interrelated, nonfrivolous, and raised in good ing approximately twenty-rive percent (25%) of the faith." Id. at 436, 103 S.Ct [at 19411. total amount of work performed." Id. at 444, 32 P.3d at 88 (footnote, ellipses, and Had the circuit court properly applied the SchcJku brackets in original omitted). Hensley analysis to Plaintiffs' attorney's fee request, the court would not have reduced the request by The Schefke court concluded that "[b]ecause 75% because Plaintiffs' claims for relief involved a [Schefke] did not prevail in all of his claims, the vi- common core of facts and were based on related al court must engage in a Horsley analysis in order legal theories and much of counwi's time was de- al determine whether it is reasonable to award at. voted generally to litigation as a whole, making it torney's fees for the entire time [Schefke's] counsel difficult to divide the hours expended on a claim- spent on the case." Id. at 445, 32 P.3d at 89. The by-claim basis. Scheike, 96 Hawaii at 444, 32 P.3d Hawai'i Supreme Court remanded the matter back at 88. Because Plaintiffs won substantial relief, they to the vial court to "consider whether [Schefke's] should not have their attorney's fees reduced simply successful and unsuccessful claims involved a com- because the circuit court did not adopt each conten- mon core of facts or were baud on related legal tion raised. Id Therefore, given that the circuit theories in arriving at attorney's fees which are court's findings that the number of *16 N126 hours reasonable." Id (internal quotation marks, citation, expended and the hourly rate of Plaintiffs' counsel brackets, and footnote omitted). The supreme court were reasonable, the circuit court should have also insvucted the trial court to 'render written awarded Plaintiffs' counsel $41,353.14 in fees. findings of fact and conclusions of law in support of its decision." Id. V. [14] We face the same situation here. Plaintiffs re- quested an amount seeking compensation for the The Final Judgment entered by the Circuit Court of 0 2009 Thomson ReuterstWest. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn=_top&mt=H... 6/18/2009 0 0 Page 20 of 20 i 75 P.3d I I I _ Page 19 117 Hawaii I, 175 P.3d 1 I I (Cite as: 117 Hawaii 1, 175 P.3d Ill) the First Circuit on May 26, 2006 is vacated, and this case is remanded with direction to the circuit court to (1) enter judgment that provides that "declaratory judgment is hereby entered in favor of Plaintiffs and against Defendants City Council, City and County of Honolulu; Donovan M. Dela Cruz; Todd K. Apo; Barbara Marshall; Charles K. Djou; Ann H. Kobayashi; Rod Tam; Romy M. Cachola; Gary H. Okino; and Nester R. Garcia, in their offi- cial capacities as members of the Honolulu City Council, declaring that HRS 11 92-2-5 did not permit members of the Honolulu City Council to engage in serial communications involving a quorum of Council members in deliberating Resolution 05-243" and (2) award Plaintiffs the amount of $41,353.14 in attorney's fees, along with costs pre- viously awarded. Hawai'i App.,2007. Right to Know Committee v. City Council, City and County of Honolulu 117 Hawaii 1, 175 P. 3d I 1 I END OF DOCUMENT ® 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.wesflaw.com/print/printstream.aspx?sv=Split&prft=HTMLE&fn =top&mt=H... 6/18/2009 o ,o 'Larry 6 Brenda Ford' To <OIP@hawaii.gov> <labford@turquoise.net> cc 06118/2009 0620 AM bcc Subject Sunshine Law Violation in Hawaii County Brenda J. Ford 81- 950 Makabiki Lane Captain Cook, 11196704 Tel: 808-323-2323 Fax: 808-323-3056 Email:labford@turquoise.net June 18, 2009 Office of Information Practices 250 South Hotel Street, Suite 107 Honolulu, HI 96813 Attn: Linden Joesting, Attorney Aloha Ms. Joesting, I am filing a formal complaint against several Hawai'i County Council Members and the County Clerk for Sunshine Law violations. The following events occurred: I . The official closing hours for the Hilo office of the Hawai'i County Legislative Branch is 4:30 p.m. On June 10, 2009, three resolutions (200-09, 201-09, and 202-09) for reorganizing the Hawaii County Council were "agendized". Each resolution was time-stamped at 10:30 p.m. the night of June 10~ (enclosed). The official agenda for the June 16, 2009 Council Meeting was time-stamped 11:15 p.m. on June I O~ (enclosed). The following day was an official holiday, King Kamehameha Day, and the County Legislative Branch offices were closed. During the June 16" Council Meeting, I questioned the Council Chairman, J Yoshimoto, as to the closing time of business for the Legislative Branch (DVD of meeting to follow under separate cover). He advised 4:30 p.m. Whereupon, Mr. Ken Goodenow, County Clerk (and an licensed attorney), advised the Council that his office had until 11:59 p.m. on June 10th to post the agenda for the six-day-notice. This policy of the County Clerk allows the agenda to be posted for the public five days and one minute before the Council meeting. In this case, the 11:15 p.m. time-stamp is 45 minutes earlier, so the actual posting was five days and forty-five minutes. Of course, this includes the holiday and the weekend. a. Does only five days and one minute (or even forty-five minutes) comply with EXHIBIT 4 0 0 the Sunshine Law? b. Should the holiday be counted as part of the six days? C. Should the weekend be counted as part of the six days? d. Does the time-stamp of 10:30 p.m. on the resolutions comply with the Sunshine Law? Even if the close of official business is 4:30 p.m.? e. Does the time-stamp of 11:15 p.m. on the agenda comply with the Sunshine Law? Even if the close of official business is 4:30 p.m.? 2. I was advised by a constituent that the official Hawaii County website where the Hawaii County Council agendas are supposed to be posted six days in advance of the meetings did not include the June 16' agenda or these resolutions. I do not know when the agenda was actually placed into the appropriate section of the County website, but not posting an agenda in the normally expected location or placing it elsewhere on the County website appears to violate not just the spirit of the Sunshine Law, but the actual law itself. Is it a violation to post the agenda in the website but in a different section than expected by the public a violation of the six-day-notice required by the Sunshine Law? (Note: You will need to determine when and where publication of the notice occurred since I believe it was corrected.) 3. It was publicly disclosed on June 16', 2009 during the Council meeting, that on June 10', J Yoshimoto, Council Chairperson, and Ken Goodenow, County Clerk went to the Council Office of Pete Hoffmann and solicited his support and vote to remove Council Member Dominic Yagong as the Finance Chairman, and to remove me as the Chairman of the Public Works and Intergovernmental Relations Committee. During that discussion, Mr. Hoffmann refused to support that change. Mr. Yoshimoto advised Mr. Hoffmann that he already had five votes in support of these proposed changes. Mr. Hoffmann asked if they were already in violation of the Sunshine Law as of June I e. On June 12, 2009, I called Mr. Goodenow on a different subject. During our discussion, Mr. Goodenow advised me, "I don't want to be the bearer of bad news, but there are some reorganization resolutions on the agenda." (Note: I did not receive my "boards" with the agenda documentation until late Friday afternoon.) Mr. Goodenow went on to say, "J and I don't support them" referring to the resolutions. I called Council Member Hoffmann and began our conversation that I was not discussing votes. I then asked if he knew about the resolutions. He said, "yes" and proceeded to tell me the rest of the June 10' conversation with J Yoshimoto and Ken Goodenow. I called Council Member Dominic Yagong and began our conversation that I was not discussing votes. I then asked if he knew about the resolutions. He did. 0 0 I called Council Member Kelly Greenwell and began our conversation that I was not discussing votes. I then asked if he knew about the resolutions. He stated that he did not. He stated that he had been called by Dennis Onishi who discussed and requested his support for limiting the number of council members on committees to five. Mr. Greenwell stated that he might have misunderstood Mr. Onishi's explanation of committee member restrictions in lieu of reorganization. I explained the proposed changes and Mr. Greenwell said he knew nothing about them. Over the weekend, Mr. Greenwell read West Hawai 'i Today's article about the proposed changes. Resolution 200-01 proposed to make Council Member Emily Naeole the vice-chairman of the council. This resolution was proposed by Council Member Dennis Onishi. This resolution passed. Resolution 201-09 proposed to remove Council Member DominicYagong and Council Member Brenda Ford as chairman of their respective committees and replace them with Council Member Dennis Onishi and Guy Enriques respectively. This resolution was proposed by Council Member Guy Enriques. This resolution passed. Resolution 202-09 proposed to reduce the total number of committees from 7 to 5 and remove Mr. Yagong, Mr. Hoffmann, and myself as chairman and vice-chairman of any committees. This resolution was proposed and then withdrawn by Mr. Dennis Onishi. When I challenged the Council Members regarding Sunshine Law violations and the solicitation of votes, Mr. Lincoln Ashida, Corporation Counsel, was requested to come forward. He explained that in a previous Sunshine Law violation (Gary Safarik) that "open meetings disclosure" "cured" the violation. Briefly, he stated that more than a quorum might discuss reorganization of the Council Committee Chairmanships without violating the Sunshine Law. "In an abundance of caution", Mr. Ashida stated that the council could "remedy" the situation by each of us disclosing who we spoke to regarding this legislation in this public meeting. (Please see the DVD under separate cover for the actual language and disclosures rather than my memory of the meeting.) Council Member District Location Spoke to: Dennis Onishi 4 Hilo Guy Enriques J Yoshimoto Kelly Greenwell (Tribune-Herald - he stated he thought Yoshimoto had talked to Naeole.) Guy Enriques 6 Puna, Ka'u & Dennis Onishi South Kona J Yoshimoto J Yoshimoto 3 South Hilo/Puna Dennis Onishi Guy Enriques Q Pete Hoffmann Ken Goodenow (County Clerk) Brenda Ford 7 Central Kona Ken Goodenow (County Clerk) (No votes solicited from anyone) Pete Hoffmann Dominic Yagong Kelly Greenwell Emily Naeole 5 Puna Claims she spoke to no one. Donald Ikeda 2 South Hilo Claims he spoke to no one. Although in the news media, his name was mentioned by a. In speaking to at least five council members to engage in vote canvassing and solicitation, did Mr. Yoshimoto (an attorney) violate the Sunshine Law? b. Did the Ken Goodenow, County Clerk and an attorney, engage in serial communication in violation of the Sunshine Law when he went with Mr. Yoshimoto to solicit his vote? c. Since Mr. Yoshimoto claimed to have five votes, whom was he not identifying? Even if he had only four communications when he spoke to Mr. Hoffmann, Mr. Hoffmann was the fifth Council Member. Is this a violation of the Sunshine Law? d. When Mr. Goodenow advised me of the "bad news" and stated that he and J did not support the resolutions (whether or not he lied), did he place me in a position of violating the Sunshine Law through serial communication? e. If there is no vote solicitation, in my discussion with three Council Members, did I violate the Sunshine Law? 4. It certainly appears that the Sunshine Law needs to be updated and a distinction between vote solicitation and discussion may be needed. Statements by Mr. Yoshimoto to Mr. Hoffmann indicated Mr. Yoshimoto already had four or five votes in favor of the proposed changes depending on whose version you believe. Please comment on this matter. 5. It also appears that both Mr. Yoshimoto and Mr. Goodenow, both licensed attorneys, colluded in these violations. Please provide comment or direction on that matter. 6. It is obvious that the County Clerk, Mr. Goodenow, is not an "arm's length" in any of this process and in fact engages in serial communication and vote solicitation. Please provide comment or direction on that matter. Mr. Ashida stated that the council could "remedy" the situation by each of us disclosing whom we spoke to regarding this legislation in this public meeting. Please provide comment or direction on that matter. Please provide your formal opinion to my questions, the remedies, and any legal action that may 0 0 be taken against any of us, including myself. Please provide information of the sections of the HRS that pertain to this case and any violations of those sections. I will fax you copies of the time-stamped resolutions and the agenda for your comments and ruling. Please provide your written ruling as soon as possible. I am enclosing several news media reports to substantiate these Sunshine Law violations. I will send a full set of DVDs covering the June 15" meeting by U.S. mail as these are being copied now. Mahalo for your time in my phone discussions with you and in considering this case. M11 hound sWfle.dw Cove? eoW.doe 0 0 Council shuffle is in the works by Peter Sur Tribune-Herald Staff Writer Published: Saturday, June 13, 2009 7:28 AM HST Proposal would make Naeole vice chairwoman The County Council may have an internal shakeup Tuesday that would make Emily Naeole the vice chairwoman, reassign council committee heads and reduce the number of committees from seven to five. The current vice chairman is Kohala Councilman Pete Hoffmann, who was chairman until last December. As vice chairman, Hoffmann runs the council meetings when Chairman J Yoshimoto is absent, which hasn't happened so far. Hilo Councilman Dennis "Fresh" Onishi introduced the resolution that would name Naeole vice chair. "We were looking at trying to get a better scope on everybody working together, so that's why that would be a move where we could put Emily in," Onishi said. It was all news to Naeole on Friday aflemoon. "I don't know; I never know nothing," she said. "I just seen it in my book." Onishi said he thought Yoshimoto had discussed the move with Naeole. Naeole said that last year, when council members met to organize themselves, she asked to be vice chairwoman, but ultimately the council installed Hoffmann. Still, she had not asked for a change recently. Hoffmann could not be reached for comment. "Whatever happens will happen," Naeole said. "I would definitely be honored." "With her being the (vice) chairwoman, the teamwork would be much better," Onishi said. "I think we're going to be more at harmony with her being there." Onishi discussed the resolutions with freshman lawmaker Guy Enriques, who represents parts of Ka'u, Puna and South Kona. "I think there were a bunch of different names that came up (for vice chair), and obviously Mr. Onishi feels that Ms. Naeole might fit the position," Enriques said. The resolution Enriques introduced would have him take over the chairmanship of Public Works and Intergovernmental Relations Committee, now held by Brenda Ford. O O Ford would be chairwoman of the Food and Energy Sustainability Committee, now held by Onishi. Onishi would head the Finance Committee, now held by Dominic Yagong. Yagong would take over the Public Safety and Parks and Recreation Committee, now held by Enriques. Also, Ford would replace Yagong as vice chairperson of the Environmental Management Committee, and Yagong would replace J Yoshimoto as vice chairman of the Human Services and Economic Development Committee. But like a game of musical chairs, two of these committee assignments could immediately be taken away. A resolution introduced by Onishi would consolidate the Human Services and Economic Development Committee under the Finance Committee. And the Food and Energy Sustainability Committee would be consolidated under the Environmental Management Committee. Essentially, if all three resolutions pass, Ford and Hoffmann would have no leadership positions in the County Council. "We wanted to consolidate and that way we could save money by doing that, and hopefully the meetings would run faster," Onishi said. Not all lawmakers have signed on to the plan, however. "I've been the chair of the Human Services Committee for the last three years," Naeole said, after being informed of the resolution. "This was right up my alley, and so I really to me, that was a very special place because I will always do that kind of work." "I'm going with the flow," Naeole said. "Whatever happens, I'm good." Asked about the new committee assignments, Enriques mentioned the original reason he ran for office. "I was not very happy with how the council was working together, as well as how poorly they worked with the (previous mayor's) administration. One of the things I wanted to do coming in there was try to get this group to work as a team as much as possible.... I'm trying to just stay in that same line of thinking and what my goals were coming into this were, and trying to be consistent with that, so this thinking that I'm having of making a change was just falling in those lines." o 0 Regarding the proposal to make Onishi the Finance Committee chairman, Enriques said it was a "good time" for a change in leadership following the budget process. "We've just gone through a very, very hard budget. And now that it's done, we've learned a lot of things. And the real key is we're probably going to head into another really, if not more diffcult, budget session coming up. "So knowing what we know, from what we've just gone through, whether it be Finance, or whether it be DPW, we might come out a little bit less bumpy." A volleyball coach, Enriques used a sports analogy. "When you get into a tough game, and your starting players are all in, but you got one or two that are not on their game for whatever reason. They're great people. They're great athletes.... I have a great respect for him (Yagong). But like any other player, we have our off times. So what do you do in a game? You sub him out, you put him on the bench, you make a change. But more than anything else, I would like to see somebody get another shot." Other significant items on the agenda would authorize the county to enter into negotiations for the acquisition of the Pahoa steam vents and, subject to the mayor's approval, make illegal the use of hand-held electronic devices while driving. The County Council meeting begins at 9 a.m. Tuesday at the Sheraton Keauhou Bay Resort and Spa; the public may also participate via videoconference in the County Council Room in Hilo or the Waimea Council Office. E-mail Peter Surat psurna,hawaiitribune-herald corn. . a o County Council coup? Onishi, Enriques look to demote Yagong, Hoffmann by Nancy Cook Lauer West Hawaii Today nook-lauer(a),westhawaiitodav com Saturday, June 13, 2009 7:15 AM HST HILO The County Council seems intent on a game of musical chairs next week, when it takes up three resolutions reorganizing board officers. Hamakua Councilman Dominic Yagong will likely be the one left standing once the music ends, with two resolutions seeking to remove him as chairman of the Finance Committee. Both resolutions name Hilo Councilman Dennis Onishi the new chairman of Finance. A third resolution strips Kohala Councilman Pete Hofmann of vice chairmanship of the council. South Kona Councilwoman Brenda Ford would be moved to chairwoman of Food and Energy Sustainability under one proposal and stripped of any chairmanships or vice chairmanships under the other. The council meeting is scheduled to begin at 9 a.m. Tuesday at the Sheraton Keauhou Bay Resort and Spa. Yagong was philosophical about the planned coup. After 10 years on the council, nothing surprises him, he said. The last midsession reorganization happened in 2006, when a council reshuffle, among other things, stripped Hoffmann of his co-chairmanship of the Planning Committee. Yagong has been outspoken and somewhat of a maverick on issues such as reducing the size of government, fighting the mayor's attempt to sell county lands and increasing transparency in the process. "I did all these actions with my eyes wide open," Yagong said. "I actually predicted this was going to happen two months ago." One of the resolutions was sponsored by Onishi; the other, by Ka'u Councilman Guy Enriques. Enriques' Resolution 201-09 makes Yagong chairman of the Public Safety and Parks and Recreation Committee and vice chairman of the Human Services and Economic Development Committee. "I'm a coach by profession. If it's not working as well as it ought to, you make a substitution. Give someone else a chance to shoot the ball," Enriques said. Enriques said he has a lot of respect for Yagong, but he felt the budget process was unnecessarily tumultuous this year. Now that the budget is complete and freshmen 0 o councilmen such as himself have a little more experience, it's time to move people around, he said. "Let's look at some changes where we've had bumps in the road," Enriques said. Onishi's Resolution 202-09 - naming himself chairman of Finance leaves Yagong without any committee chairmanships or vice chairmanships at all. Onishi did not return telephone messages Friday. A third resolution, 200-08, also sponsored by Onishi, gives Puna Councilwoman Emily Naeole the vice chairmanship of the council, replacing Hoffmann. Hoffmann and Ford did not return calls Friday. Naeole said she wasn't involved in the reorganization effort, nor was the vice chairwomanship promised as a reward for her cooperation. She said she first learned of the resolution, and the planned reorganizations, when she received her agenda packet Friday morning. "Whatever Akua allows to happen, I will embrace," Naeole said, invoking God. "I think I have good leadership skills. But the most important thing is if we can all work together." Council Chairman J Yoshimoto, of South Hilo, said he wasn't involved in the move to reorganize, but he contacted Onishl and Enriques after he got his council agenda. Yoshimoto said it wasn't his Idea to remove Hoffmann. (emphasis mine) Under Chapter 92-25 of the Hawaii Revised Statutes, "Discussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board's officers may be conducted in private without limitation or subsequent reporting." Yoshimoto said he doesn't always agree with Hoffmann, but then he often has differences with many of the council members. "We can always improve what we are doing," Yoshimoto said. "I believe (the changes) will improve our ability to succeed as a council." o a Brenda J. Ford 81- 950 Makahiki Lane Captain Cook, HI %704 Tel: 808-323-2323 Fax: 808-323-3056 Email:labford@turquoise.net June 30, 2009 Office of Information Practices 250 South Hotel Street, Suite 107 Honolulu, HI 96813 Attn: Linden Joesting, Attorney Aloha Ms. Joesting, Regarding my previous complaint against several Hawaii County Council Members and the County Clerk for Sunshine Law violations, I enclose the four captioned DVDs of the meeting where it was publicly revealed that Sunshine Law violations took place. Mr. Hoffmann stated that Mr. Yoshimoto advised him (6-10-09) that Mr. Yoshimoto already had five votes to unseat Mr. Yagong and me. Ms. Naeole and Mr. Ikeda claimed that they were not involved in the violations; however, community "rumblings" indicate otherwise. Please be aware that Ms. Naeole, Mr. Ikeda, Mr. Yoshimoto, Mr. Enriques, and Mr. Onishi all voted for the Resolutions 200 and 201 that removed Mr. Yagong, Mr. Hoffmann, and me from our positions. That is the "five" votes. My complaint is not about being removed from the chairmanship, but about the Sunshine Law. I will continue to work for the people of this island no matter what committee I chair or if I have no committee. DVD #1 and most of #2 are public testimony. Near the end of DVD #2 is where the "debate and exposure" of Sunshine Law violations begins. Please understand that my many requests and demands for Mr. Goodenow, County Clerk, to be quiet and let me speak should be visible on the DVD, but the Chairperson, J Yoshimoto, gaveled the meeting into recess so the audio was immediately turned off. Mr. Goodenow attempted "mightily" to prevent me from discussing the Sunshine Law violations and insisted that we would need to go into Executive Session to discuss such potential violations. No one motioned the Council into Executive Session. The beginning of DVD #3 has most of the discussion that will be most relevant to OIP. DVDs #3 and #4 also contain additional agenda items that were discussed, but once the Resolutions were completed, the rest of the meeting was "calm". I do not know if editing took place to remove portions of the meeting. Mr. Goodenow (808-%1- 8271) should be able to advise you on that issue. Mah~allo, for your time and attention to this matter. EXHIBIT 'r 0 0 From: RodRlas. Martha To: "Dawn.M_5h1mabukur0,d)hawa,, Cc Ashida. i oln subJax nN: Ha"a i County Council ReaganUatlon . Dabu Tuesday, June 23, 2009 4:14:13 PM Good Afternoon Dawn: Hope this email finds you doing well! Please see email below from Corporation Counsel Lincoln Ashida. Could you kindly forward this to the assigned attorney in your office'who is handling this matter? Please feel free to contact me if you need any further information. Thank you for your time. Aloha, Martha Martha A. Rodillas Private Secretary to Lincoln S.T. Ashida Corporation Counsel County of Hawaii PH: 808-961-8251 E-mail: MMdillaC&co hawaii hi From: Ashida, Lincoln Sent, Tuesday, June 23, 2009 4:09 PM To: Rodillas, Martha Subject: Hawai' i County Council Reorganization Dear OIP, Thank you for allowing the County of Hawai'i to respond to the three complaints submitted to OIP concerning the recent reorganization of leadership of the Hawai'i County Council. I have been asked by the Hawai'i County Council to respond on behalf of the Council Background On June 16, 2009, the Hawai'i County Council at a regularly scheduled meeting considered three resolutions concerning the reorganization of the Council leadership. In sum, the two resolutions that eventually passed via majority vote accomplished the following: 1. The Council Vice Chair responsibility was transferred from Pete Hoffmann to Emily Nae'ole. 2. Council committee chairmanships were redistributed among all nine members. Members of the public who testified at the Council meeting expressed dissatisfaction EXHIBIT 8 0 0 with the reorganization, alleging (1) the removal of Mr. Hoffmann from the vice chairmanship and transfer of Dominic Yagong and Brenda Ford away from the Finance and Public Works committees represented retribution for their recent disagreement with other Council members concerning the County's budget, and (2) that the reorganization was an attempt to centralize power in the "East" (primarily the Hilo districts). During the meeting, allegations that the Sunshine Law had been violated by some members of the Council were raised by the public as well as some Council members. When the County Clerk was called upon to provide an opinion as to what should be done concerning these allegations, he recommended each Council member place on the record the nature of the contact they had had with one another. When our office was called upon to reflect upon this recommendation, we concurred that under the circumstances and given the limited information available at the time, this would be the wisest course in order to work towards a "cure" of any possible violation. The former leadership of the Office of Information Practices had advised our office in previous reorganizations and similar issues that a possible "cure" for inadvertent Sunshine Law violations would be to place all contacts on the record so the public is afforded the benefit of knowing what transpired outside of a properly noticed meeting (assuming these contacts were required to be held at a properly noticed meeting and were not subject to an exception under HRS Chapter 92). Matters placed on record by Council members We understand OR was provided a DVD copy of the Council meeting of June 16, 2009. After being requested by the Council to assist in this response to OIP, I questioned each Council member individually as to their recollection of what contacts they had with one another, and what was placed on the record on June 16. Some Council members have responded to me and others have not. We recommend you verify the contents of the DVD recording against the following short summary: 1. Guy Enriques. Mr. Enriques indicated he along with Mr. Onishi approached Mr. Yoshimoto within the past few weeks in order to discuss a reorganization of the Council. In related media reports, Mr. Enriques indicated he may have discussed the issue of leadership generally with Mr. Ikeda, but that occurred prior to the present reorganization effort. 2. Dennis Onishl. Mr. Onishi indicated he along with Mr. Enriques approached Mr. Yoshimoto within the past few weeks in order to discuss a reorganization of the Council. Mr. Onishi indicated he spoke with Mr. Greenwell on Friday, June 12, 2009. 3. J Yoshimoto. Mr. Yoshimoto indicated he was approached by Mr. Enriques and Mr. Onishi within the past few weeks in order to discuss a reorganization of the Council. Mr. Yoshimoto indicated that on Wednesday, June 10, 2009, he met with Mr. Hoffmann to discuss the reorganization. 4. Pete Hoffmann. Mr. Hoffmann indicated that on June 10, 2009, Mr. Yoshimoto requested to meet with Mr. Hoffmann in the Waimea Council Office in an attempt to obtain Mr. Hoffmann's support of the proposed reorganization. 5. Donald Ikeda. Mr. Ikeda did not have contact with any Council member 0 0 concerning the present reorganization. 6. Emily Nae'ole. Ms. Nae'ole did not have contact with any Council member concerning the present reorganization. 7. Brenda Ford. Ms. Ford indicated she learned of the proposed reorganization sometime after June 10, 2009. Upon learning of this, she contacted Mr. Hoffmann and learned that Mr. Yoshimoto had approached Mr. Hoffmann after Mr. Yoshimoto met with Mr. Enriques and Mr. Onishi. Ms. Ford subsequently contacted Mr. Yagong and Mr. Greenwell to discuss the reorganization. 8. Kelly Greenweli. Mr. Greenwell indicated that on June 10 or 12, 2009 (he is not certain), Mr. Onishi contacted him and relayed he (Mr. Onishi) would be assuming chairmanship of the Finance Committee, that the number of committees would be reduced from nine to five, and there would be an increase in Mr. Greenwell's responsibilities with intergovernmental affairs. 9. Dominic Yagong. Mr. Yagong did not make any statement. The above factual summaries do not change our opinion that there was an inadvertent violation of the Sunshine Law. Council Members Enriques, Onishi, and Yoshimoto were permitted to discuss this reorganization as the Sunshine Law allows less than a quorum of a board's members (here up to 4) to discuss the board's leadership. Unbeknownst to Messrs. Enriques and Onishi, Mr. Yoshimoto contacted Mr. Hoffmann. Unbeknownst to Messrs. Enriques and Yoshimoto, Mr. Onishi contacted Mr. Greenwell. Matters were complicated when Ms. Ford learned of the reorganization and contacted Mr. Hoffmann. According to Ms. Ford, she learned Mr. Hoffmann discussed the reorganization with Mr. Yoshimoto, who had discussed the matter with Messrs. Enriques and Onishi. Ms. Ford then brought what amounted to the 5t' and 6th Council members into the discussion when she called Messrs. Yagong and Greenwell. Focusing on a cure No doubt the Council is entitled to reorganize their leadership as they deem appropriate. In communications received from your office, we note OIP has periodically referred to local media reports and premised some questions based on representations contained therein. Although these media reports may provide a general recitation of events, we respectfully caution OIP to independently corroborate these representations, since some reports we have seen contain unfortunate editorial innuendo weaved into the reporting of factual events. One report suggested this reorganization of the Council leadership represented an effort by the "East side" Council members to "seize power" over their "West side" counterparts. This divisive assertion ignores the fact all West side Council members retain the chairmanship of at least one Council committee, unlike previous Councils where members from the East side were excluded from such responsibility. it is 0 0 important to note here that Mr. Onishi's resolution that was allegedly discussed with Mr. Greenweg that proposed to reduce the number of committees from nine to rive did not pass and in fact was withdrawn by Mr. Onishi. Although we fully respect the right of all persons to form their own conclusions and voice their opinions, we believe the salient inquiry by OIP is limited to whether there has been a violation of the Sunshine Law with respect to the legislation that was actually heard and passed. Arguably, the reorganization of the Council leadership may have been a matter that could have been placed on the Council agenda via amendment on the day of the meeting. In an abundance of caution, and in an effort to allow full disclosure to all parties involved (despite Council leadership being an internal matter), a decision was made by the Council majority to notice the proposed changes on the agenda. Further, there was no guarantee OIP would similarly agree that this was purely an internal matter not of reasonably major importance that did not affect a significant number of people as the statute requires. In sum, the Council majority "took the high road" and embarked upon the most conservative course in this reorganization. Since the complaint filed by Ms. Ford alleges a violation of the Sunshine Law based on her claim that the agenda was posted too late, we thought it important to stress that the County included this reorganization on the agenda in an abundance of caution. Since one of the critical inquiries will be the HRS Chapter 92 criteria that it is a matter of reasonably major importance affecting a significant number of people, it is important for the County to point out the changes involved with this reorganization are relatively minor and the "major" issue being played out is the media is a perceived "power struggle" between the "East versus the West," an issue not relevant for purposes of the Sunshine Law. As history of our Council has shown, leadership and majorities are based upon relationships between Council members, and not where they are from. In fact, it has been the members of the "North" and "South" districts of our island (i.e., Hamakua and Ka'u) who have made the difference with respect to the makeup of Council leadership, whether the predominant number of members have hailed from the East or West side. A final note with respect to Ms. Ford's complaint. Please review the record. Ms. Ford asserts the following: When I challenged the Council Members regarding Sunshine Law violations and the solicitation of votes, Mr. Lincoln Ashida, Corporation Counsel, was requested to come forward. He explained that in a previous Sunshine Law violation (Gary Safarik) that "open meetings disclosure" "cured" the violation. Briefly, he stated that more than a quorum might discuss reorganization of Council Committee Chairmanships without violating the Sunshine Law. I do not recall stating that "more than a quorum might discuss reorganization" as that is not a correct recitation of Hawaii law. There appears to have been confusion on Ms. Ford's part as to the permissible interaction of two members versus four members (where leadership is discussed). I apologize that I was not more clear so that Ms. Ford could properly understand. o ,o Based on the above, the County submits whatever inadvertent violation of the Sunshine Law committed by Ms. Ford or other members was not willful or malicious. Turning to a cure, the on-the-record disclosure made by each Council member followed by an individual inquiry of each Council member by our office revealed no further inadvertent (or willful) violations; thus the present record is factually accurate. The County submits no further action is necessary. We thank OIP for the assistance they are providing our County. We appreciate the working relationship we have with OIP and look forward to hearing your comments with respect to the Hawaii County Council's position. Lincoln S. T. Ashicla Corporation Counsel County of Hawaii Hilo Lagoon Centre, Ste. 325 101 Aupuni Street Hilo, Hawaii 96720 Tel. (808) 961-8304, x118 FAX (808) 961-8622 Email: Lashida@co.hawaii.hi.us Website: www.co.hawaii.hi.us/cc/home.htm This message is intended only for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If you have received this communication in error, please notify us immediately by email or telephone, and return the original message. Thank youl Hawaii County is an Equal Opportunity Provider and Employer 0 0 From: Leslie.H.Kondo@hawaii.gov [mailto:Leslie.H.Kondo@hawaii.gov] Sent: Friday, January 26, 2007 8:59 AM To: LASHIDA@co.hawaij.hi.us Cc: MRODILLAS@co.hawaii.hi.us Subject: Re: FW: 2% emails Linc: I think that your solution is reasonable and perhaps will avoid making a bigger deal out of the situation. From Ms. Hecht's brief e-mail to you, it clearly appears to me that, if there was a violation, it was unintentional. I will note, however, that your question raises a tough issue. I expect that Ms. Hecht will contend that she was acting as a representative of the 02% Committee" or in her individual capacity and not as a member of councilmember Ford's staff. That contention raises numerous factual issues, none of which can be resolved without further inquiry. Clearly, councilmembers cannot easliy remove their "council her and claim to be discussing the matter as a private citizen. My off-the-cuff thought is, however, that council staff may be able to do so as long as they are not communicating at the direction of the council member or, perhaps, with the intent of communicating the councilmembers position to the other members to circumvent the open meeting requirements. Communication between councilmembers outside of a meeting through staff or otherwise, absent an exception, is contrary to, at a minimum, the spirit of the statute. Casey Jarman had asked me to do a Sunshine Law training for the council on February 7. 1 need to follow up with her to confirm that the council is still interested and available on that date. If its a go, I will try to remind the councilmembers of this issue of outside-of-a-meeting communication between each other or through their respective staff. Hope that this is helpful. Let me know if you, Ms. Hecht or the councilmembers have any questions. Thanks, Les LASHIDA® hawall hi ua To Lgalie H Kondo®hawaii aov 01/25/2007 07:30 PM u MRODILLAS®t~hawari hi us Subject FW:2%enwils Hi Les, Please take a quick look at this situation. Debbie Hecht is an aide to new Councilwoman Brenda Ford. Before coming to the County, Hecht was the representative of the "2% Committee," who successfully sought an initiative that was placed on the November ballot and passed. Now working for the County, she apparently emailed form her home a mass message to a number of people, encouraging them to support Councilwoman Ford's draft ordinance amending the initiative ordinance. When I found out about this, I queried whether any Council members were part of the email recipients. It appears at least two of them were. Given OIP's opinion concerning serial communications (this is board business), I am inclined to advise EXHIBIT 9 0 0 Hecht (or her boss, Brenda Ford) to place on the record what communication transpired outside of Sunshine. The bill will be coming up for first reading in two weeks. I believe this is consistent with advise you gave us a few years ago, when then-Chair Safarik violated Sunshine; he was told to place the conversation on the record. Sound OK to you? Thanks, Linc P.S.: Any news on the judgeship? Lincoln S. T. Ashida Corporation Counsel County of Hawaii Hilo Lagoon Centre, Suite 325 101 Aupuni Street Hilo, Hawaii 96720 Tel. (808) 961-8304, ext. 118 FAX (808) 961-8622 E-mail: Lashida(ako hawaii hi us From: Hecht, Debbie Sent: Thursday, January 11, 2007 3:30 PM To: Ashida, Lincoln; Jarman, Casey Cc: hechht debOamail com Ford, Brenda Subject: 2% emails Hello Lincoln- I had emailed Casey 2 times about this and she asked that I get in touch with you directly. I'm sorry I thought Casey was in charge of dealing with this because I work in her department, or I would have responded more quickly. The email list for the 2% has approximately 850 names. It is organized alphabetically by email addresses and has no names connected to it. There's no real way to know who the emails are sent to, unless someone uses their name as part of their email addresses. For example, biaislandbeaches0hawaii rr com, I have no way of knowing who this is. Casey explained to me how this might be construed as a violation of the Sunshine laws. I understand there's a ruling about just this situation? I read the booklet on the Sunshine Laws, so I would be informed and I really didn't connect what I did with being a violation of the Sunshine laws, otherwise I wouldn't have done it. I will not send out any more emails, I understand now, how this could be misconstrued. I do know that the email that you received went to Gail Byrne, Brenda Ford, Karen Eoff, Bob Jacobson, Barbara Lively and probably Emily Naole or a member of her staff. The emails were sent to their homes. I hope this helps you to understand what happened and that I didn't mean any harm. Debbie Hecht ~ o 0 0 COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 4 09 A RESOLUTION ADOPTING NEW RULES OF PROCEDURE OF THE COUNCIL OF THE COUNTY OF HAWAII BE IT RESOLVED BY THE. COUNCIL OF THE COUNTY OF HAWAI`1 that the attached Rules of Procedure and Organization of the Council of the County of Hawaii are hereby adopted to govern the affairs of the Council. Dated at Hilo, Hawaii, this I"day of December, 2008. INTRODUCED BY: COUN EMBER, COUNTY OF HAWAII COUNTY COUNCIL ROLL CALL VOTE County ofHawai`i AYES NOES A13S Ex j Hilo, Hawaii ENRIQUES K FORD 1 herchy ccrtifv that the foregoing RESOLUTION tvas by GRF:IiNW1iL1. tha vow inaicatrd to the right hereof adopted by the COUNCIL of the R Countyofllauni''un December 1, 2008 HOFFMANN % IKEUA R -1 NAEOLE It A'17EST: ONISI-1I x YAGONG x YOSHIMOTO X 9 0 0 0 ) Reference: _ t}1 COUNTY CLERK CHAIRPERSON x PRESIDING OFFICER RESOLUTION NO. 09 EXHIBIT 10 T RULES OF PROCEDURE AND ORGANIZATION OF THE COUNCIL OF THE COUNTY OF HAWAII wi~urii~IY ~/'IYIrfF IN.(.fwYOY~Yf~F IY.~.~.IYRIYY?%IL~.//~%llll/FNI IPM~Rw1~LN/N6L/Y/q.yl.?. ~iIII/II11ffI o 0 RULES OF PROCEDURE AND ORGANIZATION OF THE COUNCIL OF THE COUNTY HAWAII TABLE OF CONTENTS Page RULE NO. 1 INITIAL CONVENING OF THE COUNCIL RULE NO.2 MEETINGS RULE NO.3 QUORUM RULE NO.4 OFFICERS AND THEIR DUTIES RULE NO. 5 COMMITTEES RULE NO.6 STANDING COMMITTEES RULE NO. 7 AD HOC COMMITTEES RULE NO. 8 COMMITTEE OF THE WHOLE RULE NO.9 COMMITTEE REPORTS RULE NO. 10 VOTING RULE NO. 1 I DISCLOSURE OF INTEREST RULE NO. 12 PETITIONS RULE NO. 13 PUBLIC STATEMENTS AND TESTIMONY RULE NO. 14 MOTIONS RULE NO. IS RECONSIDERATION RULE NO. 16 ORDER OF BUSINESS RULE NO. 17 AMENDMENTS AND REVISIONS OF THE RULES OF PROCEDURE RULE NO. 18 SUSPENSION OF RULES RULE NO. 19 ORDER AND DECORUM RULE NO. 20. APPOINTMENTS RULE NO. 21 NEWS MEDIA RULE NO. 22 MANDATORY PROGRAM REVIEW RULE NO. 23 CERTIFICATE OF MERIT, MEMORIALS, AND EXPRESSIONS OF CONDOLENCE ............31 RULE NO. 24 BILLS AND RESOLUTIONS RULE NO. 25 PARLIAMENTARY AUTHORITY RULE NO: 26 INVOCATION RULE NO. 27 COUNCIL MEMBERS, STAFF AND ALLOWANCES RULE NO. 28 COUNTY CLERK RULE NO. 29 DEPUTY COUNTY CLERK RULE NO. 30 LEGISLATIVE RESEARCH BRANCH RULE NO. 31 SEVERABILITY O O RULE NO. 1 INITIAL CONVENING OF THE COUNCIL 1. When the time specified by law arrives for the first convening of the newly elected Council and until such time as the Chairperson and Presiding Officer shall be elected, the Mayor shall preside at such meeting, provided that the Mayor shall not have a vote. (Section 3-6, Hawal i County Charter) 2. The Mayor shall call the meeting to order and appoint a temporary perk. 3. The Mayor shall then appoint a Credentials Committee of not less than three members. The Credentials Committee shall immediately examine the credentials of the Council Members-elect. If the credentials are In order, the Credentials Committee shall so report. The Mayor, as the temporary Chairperson, shall then request a motion to elect the Chairperson of the Council. . 4. Immediately after being elected, the Chairperson shall assume the position of the Presiding Officer, and the Council shall then elect the Vice Chairperson of the Council and appoint the County Clerk as provided by Section 3-6, Hawai'I County Charter. The Council shall then adopt the Council rules of procedure and appoint the Chairpersons and Vice Chairpersons of the standing committees by resolution. 5. The rules of procedure shall become effective upon adoption and shall remain in effect until amended or revised as provided herein. 1 o o RULE NO. 2 MEETINGS 1. Reoular Meeting. The Council shall meet regularly at least twice in every month at the place and time designated by the Council. Whenever possible, the meetings will be scheduled on the first and third Wednesday of each month. The Council shall hold an equal number of Committee and Council meetings in East and West Hawari, subject to meeting location availability in West Hawari and adequate personnel, equipment, and support services to comply with statutory, legal and processing deadlines. Whenever possible, videoconferendng shall be provided for all Committee and Council meetings. 2. Special Meetings. Except as otherwise provided by law, special meetings may be called by the Chairperson or a majority of the Council. (a) Whenever possible, the date, time, place and specific purposes of such meetings shall be announced prior to adjournment of a regular meeting. If not announced at a regular meeting, written notice must be filed in accordance with HRS § 92-7 and § 13-20(c) of the Hawari County Charter. (b) An agenda for the special meeting shall be posted outside the Council offices and, if possible, on the website. 3. Committee Meetings. Except as otherwise provided, those standing committees having referrals shall meet on the day preceding a regular Council meeting or at other places and/or times designated by the Council. 4. Scheduling. The Council Chairperson shall be authorized to schedule or reschedule the location, time, date and/or subject matter of regular, special, or Committee meetings and to publish public notice upon giving at least six (6) days notice to the public and Council Members, provided the Committee Chairperson is consulted about the scheduling or rescheduling of a Committee meeting. The Council Chairperson shall promptly notify all Council Members and the County Clerk by written memorandum as to the scheduling or rescheduling of any such meetings: 5. Executive Sessions. The Council may hold a meeting closed to the public for one or more of the purposes set forth in HRS § 92-5, or where personal matters affecting the privacy of an individual are to be considered and the individual involved requests a dosed meeting to consider such matter; however, any resultant official action shall be acted upon in an open meeting in accordance with § 13-20(b), Hawari County Charter. 6. Emergen Meetings. If the Council finds that an imminent peril to the public health, safety, or welfare requires a meeting in less time than is provided for in HRS Chapter 92, 2 .O O the Council may hold an emergency meeting or add an emergency item to a posted agenda provided: (a) The,Council states in writing the reasons for Its findings; (b) Two-thirds of all Council Members agree that the findings are correct and an emergency exists; (c) An emergency agenda and the findings are filed with the Office of the County Clerk; and (d) Persons requesting notification are contacted by mail or telephone as soon as practicable. 7. Sine Die. Sine Die is the last scheduled meeting of an outgoing Council and is not considered a regular meeting. (a) Only resolutions shall be allowed on the agenda. (b) No other legislative proceedings shall be allowed with the exception of addressing emergencies. (c) The meeting shall start at 9:00 A.M., at a location designated by the Council Chairperson. 8. Availability of Agenda to Council Members. Except as otherwise provided by law, the agenda and all referrals for a regular meeting of the Council or a Committee shall be made available to Council Members at least seven (7) calendar days prior to the meeting. 9. Attendance. If a Council Member is unable to attend a meeting, prior written notice shall be given to the Council or Committee Chairperson. If a Council Member wants to attend a meeting via videoconferencing pursuant to HRS §92-3.5, a written request must be submitted to the Council Chairperson and prior approval obtained prior to the agenda deadline for that meeting. 10. Recesses. Notwithstanding the need to occasionally call for short recesses or lunch breaks, when there may be unusual circumstances for the Chairperson to call for a recess, the Chairperson shall announce the anticipated length of the recess and time of reconvening. 3 o ~ RULE NO. 3 QUORUM 1. A majority of the entire membership of the Council or a Committee shall constitute a quorum for meetings, but a smaller number may adjourn from time to time, and may compel the attendance of absent members. (Section 3-7, Hawarl County Charter) The term °entlre membership," as it pertains to Council voting, means the entire membership of nine members even If there are vacancies. (Section 3-7, Hawarl County Charter) 2. In the absence of a quorum, a meeting may not be convened except for the purpose of either recessing the meeting to another date, time and specific location or publicly adjourning the meeting due to a lack of quorum. 4 0 RULE NO. 4 OFFICERS AND THEIR DUTIES 1. Officers. The officers of the Council shall consist of the Chairperson and Vice Chairperson who shall perform the duties prescribed by law and these rules. Each shall be elected by a majority vote of the entire membership of the Council and serve at its pleasure. Any vacancy shall be filled in like manner. 2. Presidinq_Office r. The Chairperson of the Council shall be the Presiding Officer of the Council and have the right to vote as other members. In the absence or disability of the Chairperson, the Vice Chairperson shall act as the Presiding Officer. In the absence or disability of both the Chairperson and Vice Chairperson, the Council shall elect from among Its members a temporary presiding officer and the Finance Committee Chairperson shall serve as the Chairperson Pro Tempore for purposes of presiding over the election. It shall be the duty of the Chairperson to: (a) Open all meetings of the Council at the appointed hour by taking the chair and calling the Council to order. (b) Call for the approval of the minutes of the preceding meeting. (c) Maintain order and proper decorum and reasonably administer the receipt of oral and written testimony in accordance with these rules. The Chairperson shall not engage in debate or discussion of any issue unless first relinquishing the chair to the Vice Chairperson. (d) Announce the business before the Council In the order prescribed by these rules and the results of any Council vote. (e) Sign all documents and authenticate all official acts of the Council as required. (f) Receive all reports, communications, bills, resolutions, and other items from the public, the Mayor, various departments of the government, and individual Council Members, and immediately make the proper referrals of these matters to the Council or to the appropriate Committee Chairperson(s). All communications shall be numbered and made available to the public, except as otherwise provided by law. (Section 13-20(a), Hawaii County Charter) (g) Authorize (approve or deny) requests for items to be waived to the Council agenda upon written approval of the Committee Chairperson. 5 0 0 (h) Provide for the coordination of all meetings, functions, and legislative and administrative activities of the Council, and assure that they are honestly, efficiently and lawfully conducted. (1) Make known all rules of order when so requested and decide all questions of order and procedure, subject to appeal to the Council. (j) Serve as the chief spokesman and representative of the Council for matters before the public, the state and the federal governments, and the County. administration in accordance with the official position of the Council. (k) Assist the Chairpersons and members of the Committees and ad hoc committees by assuring the availability of adequate administrative and staff support. (1) Authorize (approve or deny) all travel requests of Council Members and staff as provided in the Section 13-17, Hawal'i County Charter, and Article 16, Section 2-94(a) and (b), Hawari County Code. (m) Recommend a calendar of events to include Council meetings, Committee meetings, agenda deadlines, recesses, special meetings, holidays, etc. 6 O o RULE NO. 5 COMMITTEES 1. Iypg. There shall be four (4) types of committees: (a) Standing Committees (b) Ad Hoc Committees (c) Committee of the Whole 2. Establishment The members of the Council shall establish all standing committees and designate the Committee Chairperson and Vice Chairperson or Co-Chairpersons of each standing committee by resolution at the initial convening of the Council. The other committees shall be established in accordance with these rules. 3. Purpose and Du . The purpose of the Committees Is to expedite the business of the Council by permitting Committees to go into details on specific matters. It shall be the duty of the standing committees to consider and make recommendations on matters referred to such . Committees. 4. Members. The Chairperson and all members of the Council shall be members of each standing committee with voting privileges. Membership in the other committees shall be in accordance with these rules. 5. Procedures. (a) All referrals forwarded to the standing committees shall, upon compliance with the mandated six-calendar day posting notice, be placed on the agenda of the respective standing committees upon the direction of the Committee Chairperson. (b) Any recommendation or determination by a Committee shall be dispensed with by a formal motion and vote. (c) A standing committee may expedite its business by means of referring . matters to an ad hoc committee. (d) A public hearing may be required by an affirmative vote of three standing committee members. The time and place of a public hearing shall be set by the Committee Chairperson or by a majority vote of the Committee and may be held in the area or district affected. 6. Committee Chairperson. (a) Maintain order and proper decorum and reasonably administer the receipt of oral and written testimony in accordance with these rules. The Committee 7 0 0 Chairperson shall not engage in debate or discussion of any Issue unless first relinquishing the Chairperson to the Vice Chairperson. (b) The Chairperson of each Committee shall preside at all meetings and prepare and be responsible for the agenda and reports for each meeting.. (c) In the absence of the Committee Chairperson, the Vice Chairperson shall' perform the duties of the Chairperson. In the absence of both the Chairperson and Vice Chairperson of a standing committee, the Committee shall elect from among its members a temporary Chairperson. (d) The Chairperson of each standing committee shall receive all referrals to the Committee and may place referrals on the agenda, provided that matters required by law for Council action, bills, and resolutions shall be placed on the Committee agenda within the two scheduled meetings of the date of the referral. (e) At the written request of any Council Member, the appropriate Committee Chairperson shall place a requested item(s) on the agenda within the next two scheduled Committee meetings. (f) Upon a written request and with the written concurrence of the appropriate Committee Chairperson, the Council Chairperson may authorize any item to be waived from the Committee directly to the Council agenda. 7. Other. In all other matters, Committees shall conduct their business in accordance with these rules, the Hawaii County Charter, and the HawaPi Revised Statutes. 8 0 0 I RULE NO. 6 STANDING COMMITTEES 1. There shall be seven (7) standing committees as follows: (a) Committee on Finance (b) Committee on Planning (c) Committee on Public Works and Intergovernmental Relations (d) Committee on Public Safety and Parks and Recreation (e) Committee on Human Services and Economic Development (f) Committee on Environmental Management (g) Committee on Food and Energy Sustainabiltty The Chairpersons and Vice Chairpersons of each Committee shall be determined by resolution. 2. The scope and responsibilities of the standing committees shall include, but not be limited to, the following: (a) Committee on Finance: (1) Matters related to auditing, budget, capital Improvement projects, Improvement districts, lease agreements, appropriations, general obligation and revenue bonds, taxes, intergovernmental revenues, licenses, fees, data systems, procurement policies, and personnel transactions. (2) Matters related to the establishment of the annual County operating and capital budgets, including the setting of real property tax rates. (b) Committee on Planning. Matters related to public lands, general plan, community development plans, subdivision control, zoning, land use, infrastructure requirements, coastal zone management, forestry, historic sites and trails, cultural resources, water and water development, street names, and public access. (c) Committee on Public Works and Intergovernmental Relations: (1) Matters related to management of public facilities, building, fire, plumbing and related codes, dedication deeds, street and other public improvement dedications, easements, cemeteries, highways, flood and drainage, public utilities, traffic control, sign regulations, and beautification. 9 (2) Matters related to public transportation/mass transit. (3) Matters related to State and Federal legislation, Hawari State Association of Counties, National Association of Counties, State/County overlapping functions, and Federal; State and County agency relations. (d) Committee on Public S&ty and Parks and Rea ariol]: (1) Matters related to police and fire protection, civil defense, liquor control, animal control, and the prosecuting attorney. (2) Matters related to parks and recreation, youth activities, and elderly activities. (e) Committee on Human Services and Economic D Velobmenr: (1) Matters related to research and economic development programs, market development, tourism, education, scientific research, food processing, health care, astronomy and space projects, diversified agriculture, aquaculture, foreign trade zones, enterprise zones, . telecommunications, and industrial activities. (2) Matters related to human services, social service agencies, and non- profit programs. (f) Committee on Environmental Management: Matters related to the protection, preservation, and enhancement of the environment, management of solid and hazardous waste, wastewater, and recycling programs. (g) Committee on Food and Energy Sustainability Matters related to food sustainability, solar energy, geothermal energy, wind, biomass, hydropower, and energy-effident technologies for buildings, homes, transportation, and power systems. 10 Q ,O RULE NO. 7 AD HOC COMMITTEES 1. Establishment. The Chairperson of the Council or a standing committee, In accordance with these rules and the law, may establish an ad hoc committee as needed for the purpose of investigating a matter relating to the official business of the Council or standing committee, or to present, discuss, or negotiate any position which the Council or standing committee has adopted. .2. Membership. The Chairperson of the Council or standing committee shall assign at least two (2) members, but no more than would constitute a quorum of the Council or standing committee, as members of an ad hoc committee. 3. Scone. The scope of investigation and each member's authority must be defined at a meeting of the Council or standing committee when the ad hoc committee Is established. 4. Findinos and Recommendations. All findings and reports of the ad hoc committee shall be presented to the Council or standing committee that formed the ad hoc committee during a duly noticed meeting. 5. Deliberation and Decision-Making Prohibited. Deliberation and decision-making on a matter investigated, if any, must occur only at a duly noticed meeting of the Council or standing committee held subsequent to the meeting at which the findings and recommendations of the investigation were presented to the board. 6. Other. In all other matters, the ad hoc committee shall conduct its business in accordance with these rules and the law. ll 0- ;o RULE NO, 8 COMMITTEE OF THE WHOLE 1. Establishment Upon a majority vote of its members, the Council may resolve Itself into a Committee of the Whole on any bill, resolution or matter for discussion. 2. Chairperson. The Chairperson of the Council shall be the Chairperson of the Committee of the Whole, unless otherwise specified by a majority vote of the members of the Council. 3. Record . The County Clerk shall be the clerk of the Committee of the Whole and shall make a complete record of its proceedings which shall be kept as one of the public records of the Council. 4. Other. In all other matters, the Committee of the Whole shall conduct its business in accordance with these rules, the Hawarl County Charter, and the HawaPi Revised Statutes. 12 0 0 RULE NO. 9 COMMITTEE REPORTS 1. Standing committees shall report as necessary or as required on matters referred to them. 2. Whenever any matter is referred to a Committee, it shall be the duty of such Committee to make diligent inquiry into all of the facts and circumstances that may be connected to such matter. The Corporation Counsel, department heads, and other County employees may be consulted, witnesses may be summoned and examined, documents and records requested and researched and, as may be permitted by law, everything done to bring all facts pertaining to such matters before the Committee. 3. The report of a Committee on any matter shall be signed by Its Chairperson and shall state the findings of fact and conclusions based thereon, together with a clear recommendation as to the disposal of such matter. The report also shall Indicate the vote of the Committee. 4. The report of a Committee on a bill or resolution shall state dearly the amendments, if any are proposed; however, no bill or resolution may be amended so as to change its original purpose. S. In the event a Committee fails to have total agreement, the Committee Chairperson shall transmit a majority report to the Council and the same shall be the report of the Committee.' The Committee minority may file a separate Committee report. In the event that Committee members are evenly divided on any question or if the question does not receive a majority vote due to members In absentia, the subject matter shall be forwarded to the Council with a negative recommendation. 6. Unless waived directly to the Council, all bills, resolutions and matters requiring Council action shall be forwarded to the Council with a Committee report. 13 o ,o RULE NO. 10 VOTING 1. There shall be five (5) methods of voting: (a) By voice (b) By raising of hands (c) By rising (d) By unanimous consent (e) By roll call 2. Voting on every bill, resolution or nonprocedurai motion at Council Meetings shall be by roll called by the County Clerk. When called, each member shall answer in a dear voice "aye" If voting in the affirmative, or "no" if voting In the negative. Voting on procedural motions may be by voice vote. In all cases, the Chairperson shall state the question prior to calling for the vote. The County Clerk shall record each vote in the minutes and report the result to the Chairperson who shall announce whether the motion passed or failed. Upon the request of any member of the Council, the Chairperson shall use a roll call vote. 3. The method of voting in Committees shall be determined by the Committee Chairperson, provided that if a vote is not unanimous, the Chairperson shall announce the names of those members voting in the minority and those who are absent. Upon the request of any member of the Committee, the Chairperson shall use a roll call vote. 4. If a Council or Committee meeting is being conducted via videoconferencing pursuant to HRS § 92-3.5, voting on every bill, resolution, communication and report, including procedural motions, shall be by roll called by the County Clerk or the Clerk's designee. 5. Any Council Member who has reservations, pro or con, on any motion may vote in a dear voice "kanalua." After all the members have voted, the Committee Chairperson or Clerk, as " the case may be, will again ask any members who voted "kanalua" to give a voice vote. If the voting member again votes "kanalua," the vote shall be recorded as an "aye" vote. 6. No member shall refrain from voting unless excused by the Chairperson or Is otherwise excused as provided herein. Unless a member is excused from voting, silence shall be recorded as an affirmative vote. 7. Whenever the ayes and noes are called, a Council Member shall not be permitted to explain a vote. After the announcement of the result, a Council Member shall not be permitted to change a vote. 14 O O 8. In the event of a tie vote, the following procedures apply: (a) In the case of a tie vote on the final vote on the main motion considered by a Committee, the matter shall be forwarded to the Council with a negative recommendation. For any other motions, such as motions to amend, the motion shall fall. (b) In the case of a tie vote on any motion considered by the Council, the motion fails. 9. Official Action, No official action shall be taken except at a meeting open to the public in accordance with Section 13-20(b), Hawari County Charter. Business conducted by the Council during a meeting, which does not conform to the provisions of Section 13-20, shall be null and void in accordance with Section 13-20(d), Hawari County Charter. Except as otherwise provided by law or these rules, "Official Action" means a collective decision or an actual vote by a majority of the members of the Coundl, when sitting as a body or an entity, upon any matter before the Council. (Section 3-20, Hawari County Charter) 10. Unless otherwise provided, the vote of a majority of the entire membership of the Council or Committees shall be necessary for a motion to pass. 11. An affirmative vote of at least two-thirds of the entire membership of the Council shall be required to: (a) Apply the proceeds from the Issuance of County bonds for purposes other than those for which such bonds were Initially issued (Section 47-5, Hawari Revised Statutes); (b) Override the mayor's veto (Section 3-12, Hawari County Charter); (c) Authorize the employment of special counsel (Section 6-2.5, •Hawari County Charter); (d) Make an emergency appropriation by ordinance (Sections 3-11 and 10-8, Hawari County Charter); (e) Amend the capital budget (Section 10-6(d), Hawarl County Charter); (f) Cut off debate by a motion to the previous question; (g) Revise or suspend these rules; or (h) Initiate amendments or revisions to the Hawari County Charter. 12. The Council may hold an executive meeting dosed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present, provided the affirmative vote constitutes a majority of the members to which the Council or Committee is entitled. (Section 92-4, Hawari Revised Statutes) 15 13. Upon a one-third vote of the entire membership, the Council shall be required to: (a) Hold full readings and public hearings on bills or resolutions (section 3-9, 3-10(a), Hawarl County Charter), or - (b) Lay over an amended bill for at least one week before final reading (Section 3-10(d), Hawaii County Charter). 14. Bills and resolutions covering similar subject matters and requiring three readings for approval may be considered and voted upon as a group on first reading with the unanimous consent of the entire membership. 16 RULE NO. 11 DISCLOSURE OF INTEREST 1. Any member who has a substantial financial and/or personal Interest, direct or indirect, in any action proposed or pending before the Council or a Committee, shall make full disclosure in writing to the Chairperson of such interest prior to the taking of any vote thereon as provided by Section 14-3(a), HawaP i County Charter. 2. Any membet who has a substantial financial and/or personal interest directly affected in any action proposed or pending before the Council or a Committee shall refrain from deliberating on said action and shall be excused from voting on the matter thereon. (a) "Substantial" means an interest which is sufficient in magnitude to influence one's official action. (b) "Financial interest" means an interest held by a Council Member, his or her spouse, or dependent children which is (1) an ownership interest in a business, (2) a creditor interest in an insolvent business, (3) an employment, or prospective employment, for which negotiations have begun, (4) an ownership interest in real or personal property, (5) a loan or other debtor interest, or (6) a directorship or officership In a business. 3. Such written disclosure of financial or personal interest in any proposal pending before the Council and its Committees, shall be recorded in the minutes of the meetings of the Council and its Committees, and shall be made a matter of public record prior to the taking of any vote on such proposal as provided in Section 14-3(b), HawaPi County Charter. Such written disclosure shall be applicable to all subsequent actions relating to the same subject matter. 4. Prior to any vote in the Council or a Committee on a proposal for which the Council Member has made a written disclosure of a financial or personal interest, the Council Member shall also orally disclose the interest to the Council or Committee after each motion and second on the proposal, but before the commencement of debate on the motion or, if there is no debate, before the calling of the question on the motion. 17 0 RULE NO. 12 PETITIONS ' 1. Any person may petition the Council. Petitions shall be in writing, signed by the petitioners. 2. All petitions and other papers addressed to the Council shall be presented by the Chairperson or by a Council Member, and shall be endorsed by the person presenting it. The petition or other papers shall be made part of the official records kept by the perk, provided that all documents so received shall be referred to Committee as appropriate. 3. A brief statement of the contents of any petition or other papers shall be made verbally by the one presenting the same. 4. Petitions relating to Initiative and Referendum shall follow procedures pursuant to Article XI, Hawari County Charter. 18 O RULE NO. 13 PUBLIC STATEMENTS AND TESTIMONY 1. Written Testimony. Written testimonies shall be received for the record on any agenda item. If possible, fourteen (14) written copies of the testimony should be submitted for presentation to the Council or Committee by 12 noon the previous business day of the meeting(s). Testimonies received after 12 noon shall still be received for the record and will be presented to the Coundl or Committee members as soon as practicable. 2. Oral Testimony. Oral statements from any member of the public shall abide by the following: (a) Pursuant to Chapter 92, Hawaii Revised Statutes, any person wishing to present oral testimony on any agenda item may do so consistent with this rule. (b) Persons wishing to present oral testimony relating to any agenda Item shall register with the Clerk prior to the closing of statements from the public at the call of the Chairperson, indicating the item on which they wish to speak and their position, if any. Persons may provide their name, address, and organization they represent, if any. (c) Each person may speak for three minutes subject to the discretion of the Chairperson. (d) Each person must speak at the time of calling, unless the Chairperson determines otherwise. (e) No person will be allowed to speak twice on the same subject. (f) Any person wishing to speak on more than one subject shall register separately for each agenda item. :(g) Those speaking shall direct their remarks to the Chairperson and not to any individual Council Member or person in the audience. (h) All members of the public shall extend proper courtesy and respect to one another and to all Council Members, and all persons shall be addressed by their surnames. No profanity or abusive remarks will be allowed at any time in any meeting. (i) Any person, not a member of Council, who is disrespectful to the Council or any Committee by any disorderly or contemptuous behavior in its presence 19 Q O or who disrupts the exercise of any legislator's function, may be removed from the meeting at the discretion of the Chairperson. (j) Any person who does not abide by these rules may be ruled out of order by the Chairperson. 3. . Nothing in this rule shall diminish the responsibility or the authority of the Chairperson to maintain order and decorum. 4. - Council Members shall refrain from making comments or asking questions of testifiers during statements from the public. All deliberation and discussion on an agenda item must take place after the item has been read into the record and a motion is pending on the floor. A Council Member may, however, request that a person presenting public testimony on an agenda item be available for questions during subsequent discussion. 20 0 0 RULE NO. 14 MOTIONS 1. No motion may be received and considered by the Council or a Committee until the same has been seconded. 2. No floor amendment to a bill or resolution shall be considered unless a written copy of the amended version has been presented to the County Clerk for preparation and distribution to each Council Member present. However, a floor amendment may be verbal if limited to correction of manifest clerical or typographical errors or errors in numbering, spelling, capitalization, punctuation, grammar, and gender terms, provided that the correction will not alter the meaning or effect of the underlying bill or resolution. 3. After a motion is stated or read, it is deemed to be in the possession of the Council or Committee, and it shall be disposed of by vote of that body. However, any motion may be withdrawn by the movant without consent of the corresponding second at any time before a decision or amendment. 4. Whenever any question is under discussion, the precedence of motions thereto shall be to: (a) Lay on the table. (b) The previous question. (c) Postpone to a certain time. (d) Commit (or refer). (e) Amend. (f) Postpone indefinitely. (g) Close file on subject matter. The first two motions shall be decided without debate. 5. Previous Ouesdon. The object of a motion for the previous question is to cut off debate. However, when this motion is carried by two-thirds (2/3) majority, the introducer of the main subject under discussion shall be permitted to close the debate, after which the main question shall be put; provided, however, that the introducer may delegate to another such right to dose. 6. Postpone Indefinitely. When a question is postponed indefinitely, the same shall not be acted upon again or revived at any subsequent meeting of the Council which so disposed of such questions unless by consent of the majority of the Council. 21 7. When a motion In one of the categories described in paragraph 4, or another incidental motion fails or is decided in the negative, the same shall not be revived at the same meeting relative to the main question under discussion. If all fail or are decided in the negative, the only remaining question shall be as to the passage or adoption of the bill, resolution, or other main question. 8. Adjournment. Meetings may be adjourned at any time by motion and vote. Unless otherwise specified In the motion, every meeting shall be considered adjoumed to the usual hour of meeting on the next regular meeting, date. A motion to adjourn Is always in order and shall be decided without debate. 22 0 0 RULE NO. 15 RECONSIDERATION 1. A reconsideration motion is made when a Council or Committee member wishes to re-discuss and revote on a prior action not yet enacted into law. The effect of granting reconsideration is to bring the entire matter back to the Council/Committee in the form it appeared prior to the last vote on the matter. It reopens the motion for amendment. 2. When a motion has been made and carried in the affirmative or negative, any Council Member voting with the prevailing side may move for a reconsideration of the vote on the motion at the same meeting or at the next meeting. However, any Council Member who wishes to ask for a motion to reconsider at the next meeting must notify the Council or Committee Chairperson and County Clerk in writing of their Intention to make such a motion within five (5) working days after the disposition of the motion to be reconsidered. A motion to reconsider the vote made at the time any bill or resolution fails to pass final reading shall not be voted upon until twenty-four (24) hours have elapsed. (Charter §3-10(e)). 3. Bills and resolutions that have passed final reading shall remain in the possession of the Council and the Clerk shall not transmit, file, or otherwise dispose of them until the time has expired for Council Members to notify the Council Chairperson and County Clerk in writing of their intention to make a motion to reconsider at the next meeting, unless it is deemed filed pursuant to ordinance or the time for its passage has expired by operation of law. If the motion to reconsider fails, the vote previously taken on the bill or resolution shall become final, and the Clerk shall so note In the journal. 4. A motion for which notice of reconsideration was timely made shall be placed on the agenda for the next meeting under "Other Business" unless the reconsideration is taken at the same meeting as the original action. 5. A motion can be reconsidered only once. 6. Any bill or resolution that has failed cannot be reintroduced in substantially the same form during a Council term. 7. For purposes of this rule, "next meeting" means the first meeting when the motion to reconsider can be placed on the agenda for dedsion-making consistent with the public notice requirements of the Sunshine Law. 23 Q Q RULE NO. 16• ORDER OF BUSINESS 1. Subject to the discretion of the Chairperson and prior to the Call to Order, an invocation may be delivered in accordance with Rule 29. 2. The following shall be the Order of Business for the Council: . 1. Call to Order 2. Roll Call 3. Pledge of Allegiance 4. Approval of Minutes S.. Petitions, Memorials, Communications, Certificates of Merit and Expressions of Condolence 6. Order of Resolutions 7. Bills for Ordinances (First Reading) 8. Order of the Day (Second or Final Reading) 9. Reports 10. Referrals for Executive Session 11. Other Business 12. Announcements 13. Adjournment 3. The Chairperson shall schedule Statements from the Public throughout the Order of Business to increase convenience for the public who wish to testify or to be present for Council debate and decision-making. 24 o a RULE NO. 17 AMENDMENTS AND REVISIONS OF THE RULES OF PROCEDURE 1. Amendments. These rules may be amended at a regular Council meeting by a resolution approved by an affirmative majority vote of the entire membership of the Council; provided that at least six (6) days advance written notice of such amendment(s) and meeting are first given to each member. 2. Revisions. Whenever changes of the rules are so extensive and general that they are scattered throughout the rules such that an entirely new set of rules called a revision is necessary, then such revision shall require the adoption of a resolution by a two-thirds affirmative vote of the entire membership of the Council. The notice requirements shall be the same as those for amendments. 25 0 0 RULE NO. 18 SUSPENSION OF RULES 1. When the Council or Committee, proposes to do something that it cannot do without' violating one or more of these rules, it can adopt a motion to Suspend The Rules Interfering with the proposed action; provided, however, that neither the proposal nor the suspension shall result in a conflict with any constitutional provision, local, state, or national law or the fundamental principles of parliamentary law. 2. A motion to-Suspend The Rules is: (a) An incidental motion, and no subsidiary motion can be applied to it. (b) Out of order when another has the floor. (c) Not debatable or amendable. 3. Such a motion requires a two-thirds vote of the entire membership, unless otherwise provided, and cannot be reconsidered. 26 -o o RULE NO. 19 .ORDER AND DECORUM 1. All hearings and meetings will begin promptly at the scheduled announced time. 2. A Council Member must be recognized by the Chairperson before speaking. The member shall address the Chairperson when recognized and shall confine discussion to the question under debate and avoid personalities. 3. Any Council Member who arrives late at a hearing or meeting shall refrain from taking the Council's or Committee's time with questions and inquiries on matters already discussed. 4. If any Council Member behaves in a disorderly or contemptuous manner during any session of the Council or Committee, the Chairperson shall order such member to cease and shall preserve the peace. If the Council Member persists, the Chairperson shall order the County Clerk or a designated person to remove the Council Member from the meeting, and that Council Member shall not be permitted to be seated during the remainder of the session, except upon approval of the Chairperson or by majority vote of the Council. 5. All Council Members shall extend proper courtesy and respect to one another and to all persons speaking before the Council, and all persons shall be addressed by their surnames. No profanity or abusive remarks shall be allowed at any time in any meeting. 6. A Council Member must be recognized by the Chairperson before speaking. 7. Nothing in this rule shall diminish the responsibility or authority of the Chairperson to maintain order and decorum. 8. No Council Member may speak longer than five (5) minutes, nor may any member speak more than twice on the same question without leave of the Chairperson, subject to an appeal to the Council, unless the Council Member is the maker of the motion or sponsor of the: matter pending, in which case the Council Member may speak in reply, but only after every other Council Member choosing to speak has spoken. 9. In the case of a Committee, a Council Member may speak more than twice on a matter before that body, but only after every Council Member choosing to speak has spoken. 27 O RULE NO. 20 APPOINTMENTS 1. Oualifications. No Council Member shall appoint any person to any office or position which is exempt from the civil service laws until satisfied by proper investigation that the person to be appointed is fully qualified by experience and ability to perform the duties of that office or position. (Section 13-3, Hawari County Charter) 2. Prohibitions. ' (a) No person who seeks appointment or promotion with respect to any County position shall directly or indirectly give, render or pay any money, service or other valuable thing to any person for or In connection with their test, appointment, proposed appointment, promotion or proposed- promotion. (Section 13-10, Hawari County Charter) (b) No Council or staff member who has the power of appointment by the Hawari County Charter or ordinance shall appoint, employ, promote or advance an individual who is a relative of the Council or staff member to any office or position under their supervision. The word "relative" shall mean an individual who is related to the Council or staff member as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, step-father, step-mother, step-son, step-brother, step-daughter, stepsister, half-brother or half-sister. (Section 13.10, Hawal't County Charter) (c) No Council or staff member shall use their official position to secure special privileges, consideration, treatment or exemption to themselves or any person beyond that which is available to every other person. (Section 14-2(b), Hawaii County Charter) (d) No person in a supervisory capacity shall engage in personal or business relationships with subordinates which might intimidate said subordinate, in the discharge of their official duties. (Section 14-4(b), Hawari County Charter) 28 o 0 RULE NO. 21 NEWS MEDIA 1. Members of the news media covering the business of the Council or its Committees may be assigned to selected areas by the Chairperson 2. Except as provided by law, members of the news media shall be permitted to televise and sound-record the proceedings of the Council and its Committees under such rules and/or conditions as the Chairperson may prescribe. 29 O 0 RULE NO. 22 MANDATORY PROGRAM REVIEW 1. In order to comply with Section 3-16, Hawaii County Charter, relating to Mandatory Program Review: (a) The Council shall conduct a critical review of every program of all departments or agencies supported wholly or partially by County funds during the Council's annual operating and capital budget and program approval process. (b) The Council, through its Committee on Finance, shall review the operating and. capital budget and program information submitted by the Mayor pursuant to Article X, Hawaii County Charter. In addition to Information set forth in Sections 10-3 and 10-6, Hawarl County Charter, the Committee may request the departments or agencies for other information that would assist in Its review of the programs. Such Information may include, but shall not be limited to, the statutory authority for the program, program goals and objectives, outcome results and a department or agency assessment of the program's performance. (c) The Committee shall report its review and findings to the Council for consideration and funding. (d) The Council may approve a program's continued funding at existing or modified levels, or the Council may terminate a program and its funding. (e) If warranted, the Council may conduct further research into a program in accordance with these rules. 2. Further research into a program or issue may be conducted by: (a) A standing committee. (b) The Office of the Legislative Auditor pursuant to adoption of a Council resolution. (c) An independent contractor pursuant to adoption of a Council resolution. 30 o O RULE NO. 23 CERTIFICATE OF MERIT MEMORIALS AND EXPRESSIONS OF CONDOLENCE 1. Certificates of merit, memorials, and expressions of condolence are non-legislative in nature and require no formal Council action. 2. Memorials and expressions of condolence are intended to convey the County's condolences on the death of any exceptional public personality In or out of government who has contributed in some way to Hawarl County or the State of Hawarl. 3. The sponsoring Council Member shall be responsible for the securing of firm commitments to sign the certificates from other Council Members. Any conflicts regarding sponsorship or duplicated requests shall be referred to the Council Chairperson. 4. The sponsoring Council Member shall inform the County Clerk as to the necessary particulars. A certificate of merit shall include the name of the honoree and a brief description of the act or achievement to be cited. 5. Certificates shall be issued to the honoree only. True copies of any certificate shall not be issued to spouses, officers, sponsors or the like, who are not directly involved unless In the case of an expression of condolence. 6. All certificates which do not have a major impact or which do not affect a significant number of people, and are received less than six (6) days before the regular meeting date of the Council, may be considered at such meeting. 31 0 0 RULE NO.24 BILLS AND RESOLUTIONS 1. General Procedures. (a) A bill or resolution may be introduced by any Council Member(s). The original copy of any bill or resolution shall be in typewritten form, dated and signed by the introducers) prior to consideration. (b) In order to be considered for placement on the Council or Committee agenda, all bills, resolutions, petitions, and other communications shall be filed with the Clerk by 12 noon of the eighth business day preceding the day of the'Council or Committee meeting. Any bills, resolutions, petitions, and communications received later than said time shall be placed on the agenda of the next regular meeting. (c) Upon compliance with the mandated six (6) calendar day posting notice, bills, resolutions and matters requiring Council action shall be placed on the Council agenda within the next two Council meetings. Bills, resolutions and matters requiring Council action shall be introduced on the Council floor by the Committee Chairperson or the member introducing the legislation. (d) Readings of bills or resolutions may be by title only, except that a full reading may be required by one-third vote of the entire membership. (Sections 3-9 and 3-10(a), Hawaii County Charter) (e) A bill or resolution up for final reading that is amended on the floor shall not be acted upon at the time of the floor amendment. Final action on such an amended bill or resolution shall not be taken until the next regular meeting. This provision shall not apply to: (1) The annual budget bill, pursuant to Article 10 of the Hawari County Charter 2000, as amended, (2) The correction of manifest clerical or typographical errors in numbering, spelling, capitalization, punctuation, grammar and gender terms, provided that the correction does not alter the meaning or effect of the underlying bill or resolution. 32 0 0 2. Bills (Section 3-10 HawaPi County Charter). (a) Ordinances shall be initiated as bills which shall be passed only after two readings on separate days except as otherwise provided by law. Reading of bills may be by title only. (b) Every ordinance of the council shall embrace but one subject, which subject shall be expressed in its title. If an ordinance embraces a subject not expressed in its title, only that subject shall be void. (c) Bills embracing: (1) The fixing of special assessments for the cost of improvements, (2) The appropriation of public funds or authorization of the issuance of general obligation bonds or (3) The imposition of a duty or penalty on any person, shall pass first reading by a vote taken by ayes and noes, and digests of such bills shall be advertised once in at least two daily newspapers of general circulation in the County, with ayes and noes, at least three days before final reading by the Council. Not less than three copies of such bills shall be filed for use and examination by the public in the office of the County Clerk at least three days prior to the final reading thereof. (d) A bill shall not be amended to change its original purpose. An amended bill shall, upon a one-third vote of the entire membership, be laid over for at least one week before final reading. (e) A motion to reconsider made at the time any bill fails to pass final reading shall not be voted upon until after twenty-four hours. (f) Ordinances shall become effective upon approval by the Mayor or at such later date as may be specified therein. (g) A bill may incorporate therein any standard technical code or portions thereof by reference. The code, or portions, need not be published in the manner required for ordinances, but not less than three copies thereof shall be filed for use and examination by the public in the Office of the County Clerk, and notice of the availability of said copies shall be published by the Clerk. 33 U 0 (h) After enactment, ordinances shall be published once in at least two daily newspapers of general circulation in the County. Such publication shall be by title only and shall specify the ayes and noes. 3. Emerged Ordinances (Section 3-11 Hawaii County Charter). The County Council may adopt emergency ordinances to meet public emergencies affecting life, health or property. Such ordinances may not be used to levy taxes, authorize the borrowing of money or to grant, renew or extend franchises. Emergency appropriations may be made pursuant to Section 10-8, Hawal i County Charter. Emergency ordinances shall be plainly designated as such and shall contain a declaration describing the emergency in dear and specific terms. Any emergency ordinance may be considered and adopted after one reading, with or without amendment, or be rejected at the meeting at which the same is introduced. The affirmative vote of all Council Members present or by two-thirds of the entire membership shall be necessary for adoption of such ordinances. Emergency ordinances shall be published in the same manner prescribed for other adopted ordinances and shall become effective upon approval by the Mayor or at such later time, preceding automatic repeal, as the same may specify. Amendments to any emergency ordinance shall be adopted in the same manner prescribed for adoption of emergency ordinances. Every emergency ordinance, Including any amendments made after adoption, shall automatically stand repealed as of the sixty-first day following the date of adoption of the original ordinance. 4. Submission of Bills to the Mayor (Section 3-12 Hawan County Charter). Every bill adopted by the Council shall be duly authenticated by the perk and the Chairperson and thereupon presented to the Mayor for approval. Such bill shall become effective as an ordinance upon its approval or such later date as specified therein. If the Mayor disapproves a bill, the Mayor shall return the bill together with any objections in writing to the Clerk within ten days (excluding Saturdays, Sundays, and legal holidays) after receipt. If the Mayor does not act within such ten-day period, the bill shall become effective as an ordinance as if the Mayor had approved it. The objections of the Mayor shall be entered in the journal of the Council and the Council may, after five and within thirty days after the bill has been so returned, reconsider the vote upon the bill. If the bill, upon such reconsideration, is again passed by the affirmative vote of two-thirds. of the entire membership, the Chairperson shall verify that fact on the face of the bill and such bill shall become effective as an ordinance with like effect as if approved by the Mayor. A bill failing to pass upon such reconsideration shall be deemed lost. 34 O ;O If any appropriation bill is presented to the Mayor, the Mayor may veto any item or portion thereof by striking out or reducing the same. The Mayor shall append any objections and the reasons therefore to the bill at the time of signing, and the item or portion thereof so vetoed shall not take effect unless the Council shall reconsider the vote on the bill and; upon such reconsideration, the bill is again passed by the affirmative vote of two-thirds of the entire membership. In the case of the annual operating budget, the Mayor shall return the bill to the Clerk within ten (30) calendar days of receipt of the bill. (Section 10-5, Hawaii County Charter) 5. Resolutions. Resolutions are non-legislative acts of the Council and, except as otherwise provided by law, no resolution shall have the force and effect of law. There shall be two basic types of resolutions which may be processed: (a) Formal Resolutions. This type of resolution represents an official Council expression and, therefore, generally has considerable weight. There are three categories of formal resolutions: (1) Official Decision. (A) Resolution organizing the Council and staff, (B) Resolution delineating the Council's rules of procedure; (C) Resolution calling for moratoriums on parking meter usage, traffic control, etc.; (D) Resolution tendering assurance of participation for certification requirements mandated by Federal or State agencies, e.g., HUD, block grants; (E) Resolution approving multi-year leases, purchases, contracts, etc.; (F) Resolution amending the salary ordinance; and (G) Resolution transferring funds. (2) Legislative-Like. (A) Resolution establishing real property tax rates; (B) Resolution authorizing eminent domain proceedings; (C) Resolution revising County fuel tax rates; (D) Resolution relating to the abandonment or disposition of County lands; (E) Resolution approving a development agreement; (F) Resolution on initiative and referendum proceedings; and 35 p 1 (G) Resolution calling for the inclusion of charter amendment proposals at the next general election. (3) Official Request or OpinIgn. (A) Resolution requesting Information or a study to be conducted; (B) Resolution calling for State or Federal action; and (C) Resolution to a department head requesting information or review of a specific Issue or item. (b) Informal Resolutions. Generally address subjects having less impact than formal resolutions and are categorized as follows: (1) Automa (A) Resolution honoring retiring County elected officials; and (B) Condolence resolution on the death of any incumbent County- elected official. (2) Optional. A Council Member may Introduce the following kinds of optional resolutions. (A) Condolence resolution on the death of former elected or top level appointed office holders in the County, State or Federal government, but not spouse of or relative thereof; and (B) Condolence resolution on the death of any exceptional public personality in or out of government who has contributed significantly in some way to HawaPi County or the State of Hawari. 36 (O , O aULF NO. 25 PARLIAMENTARY AUTHORITY When these rules are silent, the rules of parliamentary procedure contained in the current 'edition of Robert's Rules of Order Newly Revised shall govern the Council and its Committees in all cases to which they are applicable and in which they are not inconsistent with any constitutional provision, any law, the HawaPI County Charter or these rules. 37 O Q RULE N0. 26 INVOCATION 1. For the purposes of this rule, the following definitions apply: (a) "Church" shall mean body, group or organization of religious believers. (b) "Invocation" shall mean a prayer or entreaty to a higher authority. (c) "Minister" shall mean one who officiates over or leads a church worship service. (d) "Non-denominational" shall mean without regard to the tenets of a particular church. 2. Subject to the discretion of the Chairperson, an invocation may be delivered by a minister of a church prior to the call to order for any Council meeting. The Chairperson shall approve the selection of the minister. 3. The County Clerk's Office shall maintain a list of ministers of all faiths who have been asked to, or who have expressed an interest in, delivering the Invocation. The participants on the list will be called rotationally so that no one individual is asked to say the invocation more than a few times per year. If a participant on the list is asked, and declines more than three different Council meeting dates, he or she will be passed over for the remainder of that calendar year. A minister who is on the list as of the adoption date of this rule will be maintained on the list until the minister asks to have his/her name removed. A minister who would like to become part of the list maintained by the County Clerk's Office subsequent to the adoption of this rule will be asked to submit, on church letterhead, the minister's name, church address, home address, church phone number and home phone number to the Cleric. 4. This program of invocation shall be non-denominational. 38 I O O RULE NO. 27 COUNCIL MEMBERS STAFF AND ALLOWANCES 1. Each Council Member shall have direct responsibility over the respective district staff. (a) It shall be the duty of the Council Member to supervise his/her district staff, including hiring, termination, promotion, and salary increase in accordance with the applicable provisions of the State and County laws, Council Rules, other personnel policies of the Council and the County, and the limitations of the legislative budget ordinance. District staff are "at will" employees whose employment shall be co-terminus with the appointing Council Member unless personnel action to the contrary is initiated. The County perk may also initiate termination with the concurrence of the Chairperson to assure proper management of the entire Council Office using agreed upon guidelines and procedures. The Chairperson of the Council shall continue to sign all documents necessary to implement the decisions of the individual Council Members. (b) Each Council Member is assigned two fulltime staff: (1) Council Aide. (2) Council Legislative Assistant. (c) The Chairperson is assigned four additional fulltime staff: (1) Executive Assistant to the Chairperson (EA). (2) Deputy Executive Assistant to the Chairperson-East/west Hawaii (EA) (3) Special Assistant (4) Council Aide to the Chairperson, in addition to subsection 1(b). (d) Only one person per position shall be permitted. (e) Staff responsibilities include, but are not limited to, the following: (1) Office tasks; (2) All work related to the individual Council Member, including drafting bills, resolutions, and proposed amendments, and conducting research on topics and issues required by the Council Member; (3) Performing special assignments, responding to letters, complaints and telephone inquiries, gathering data or appropriate information in 39 O o order that the Council Member may respond to requests from constituents, preparing messages, articles and news releases, and facilitating meetings with the community; (4) Providing Committee support if the Council Member is the Chairperson of a Committee. Committee support means attending the Committee meeting, writing the Committee report for the Chairperson's approval, drafting legislative amendments, and conducting necessary research to assist the Committee in Its deliberations. Committee Chairpersons and Vice Chairpersons shall be responsible for the duties of the Committee; (5) Assisting other Council Members if approved by the appointing Council Member; (6) Assisting other divisions of the office If approved by the appointing Council Member with the concurrence of the County Clerk. 2. Each Council Member shall have direct responsibility over the District Allowance Expense (DAE) account. (a) Each Council Member shall be appropriated monies as specified in the budget for DAE to cover incidental expenses in carrying out his/her duties as an elected official. Incidental duties and activities include expenditures incurred in connection with carrying out the public's expectation of a Council Member's role and responsibility to the community and constituents. In an election year (July-December), the Council Member shall be allotted 50% of the appropriation. The remaining 50% (December June) shall be allotted in December; however, if the incumbent Council Member is reelected in either the Primary Election or the General Election, then the remaining 50% shall be allotted immediately. (b) Allowable DAE include, but are not limited to: (1) Community meeting expenses such as facility rental fees, charges for maintenance or security services, light refreshments, special mailings or handouts, leis for speakers, and the rental of special equipment. (2) Leis for recipients of honorary certificates and frames for honorary certificates. 40 0 0 (3) The purchase of research or reference materials, publication subscriptions, or other materials related to legislative issues or procedures. (4) NACo, WIR, HSAC, conference or seminar registration fees, including travel and accommodation costs associated with the conference or seminar attended. All travel expenses shall have the concurrence of the Chairperson. (5) Miscellaneous office supplies, equipment or materials. All purchases must follow the procurement law and be domiciled in the Council Members' office. Equipment and supplies are the property of the County. (6) The expenses of his/her staff. (7) Monthly cell phone reimbursement not to exceed $75.00 per month. (S) Joint district expenditures for allowable expenses are permitted. (c) Each Council Member shall be personally responsible to pay any expenses incurred in support of the conduct of official duties and activities that exceed the allowance and those expenses that are deemed prohibited. (d) Prohibited expenses include, but are not limited to: (1) Personal, political or campaign related expenses, and those spent outside of the scope of a Council Members official duties and activities. Please review the ethics code and the campaign spending laws. (2) Donations to community organizations or transfers to County agencies. (3) Transfers between the DAE and Contingency Relief accounts are prohibited. (4) Transfers from a district account to other district accounts are prohibited. (e) The expenses of the HSAC executive committee member or the official NACo or WIR board member shall be drawn from the general accounts. (f) The expenses for the attendance of a Council Member at Committee and Council meetings and public hearings shall be drawn from the general accounts. Similarly, the reasonable expenses for the attendance of the 41 O O district staff to support the Committee Chairperson shall be drawn from the general accounts with the concurrence of the County Clerk. 3. Each Council Member shall have direct responsibility over the-District Contingency Relief account. (a) Each Council Member is allotted monies as specified in the budget for annual Contingency Relief, when appropriated in the General Fund, to provide for County related projects. (b) In an election year (July-December), the Council Member shall be allotted 50% of the appropriation. The remaining 50% (December-June) shall be allotted in December; however, if the Incumbent Council Member is reelected in either the Primary Election or General Election, then the remaining 50% shall be allotted immediately. (c) Expenditures shall be transferred to County agencies using the appropriate legislative mechanisms for the benefit of the agencies to provide for the public. (d) All purchases of equipment must follow the procurement law and be domiciled In the County Departments. Equipment, supplies and products are the property of the County. (e) Transfers between the DAE and Contingency Relief accounts are prohibited. (f) Transfers from a district account to other district accounts are prohibited. 42 o .o RULE N0. 28 COUNTY CLERK 1. County Clerk. The County Clerk shall be appointed by and serve at the pleasure of the Council under the direct supervision of the Chairperson. 2. Duties. It shall be the duty of the County Clerk, in addition to those duties prescribed by law, including Section 3-6(b), Hawaii County Charter, to: (a) Be responsible for the administration of the Office of the County Cleric. (b) Have charge of all the records of the Council, keep an accurate journal of proceedings, and make accessible to the general public, In a timely manner, all written materials of public record and be responsible for same. (c) Forward at once to the Chairperson and Council Members all official reports, communications and other matters related to the Council's business. (d) ' Serve in all matters as Clerk of the Council and perform all clerical and office duties pertaining to such position as the Council shall from time to time direct, as well as other duties assigned by law or these rules. (e) Attend all Council meetings and read bills, resolutions, and other matters to the Council, as required. (f) Maintain order among those members of the public present at Council meetings"and, when required by the Chairperson, remove any person who violates these rules. (g) Exercise direct supervision over agencies and the staff of the legislative branch of the County. (h) Be the authorized representative for the Committee on the Destruction of Records. 43 0 0 RULE NO. 29 DEPUTY COUNTY CLERK 1. Deputy County Clerk. The Deputy County Clerk shall be appointed by the County Clerk with the approval of the Council. Such position shall be exempt from civil service laws and classifications. 2. Duties. It shall be the duty of the Deputy County Clerk to: (a) Assume the duties of the County Clerk in the Clerk's absence. (b) Perform other duties as may be assigned by the Clerk. t 44 Q 0 ~Y LFGi5LAT1VE pFAoRCH BRANCH 1. Laatalatiye Research Branch. The Legislative Research Branch (LRB) shall promote the effective operation of the legislative process by performing complex ongoing tasks that are the responsibility of the Council and the County Clerk's office. 2. Duties. On an ongoing basis, the LRB, as directed by the County Clerk, shall be responsible for the following tasks: (a) Annual Fscal Leaisia ion. Assist the Council in its annual budget and real property tax reviews, prepare amendments to the salary and budget ordinances, and prepare the real property tax resolution. (b) ~i i County Code. Update and publish the Code and its supplements, oversee dissemination of the Code, maintain an online version of the Code, and assist in the maintenance of past versions of the Code. (c) Hawaii County Charter. Assist in drafting legislation, ballot questions, and other documents required for proposed amendments to the Charter, update the Charter to incorporate changes, and assist in the maintenance of Charter records. (d) CS)unty Leoislation. Review bills and resolutions proposed by Council Members and all bills that propose amendments to the County Code. (e) 5gjq Leaisiation. Monitor the annual State legislative session and prepare a list of bills of significant County interest. (f) CouncilaL Rai . Prepare and update. (g) ~4'a_^~ r1~rk's Archive. Assist the Clerk in the management of the Clerk's Office's archive of legislative materials. (h) Le ja~vP aesources. Maintain a library of research materials for staff use. (I) T inin . Conduct training regarding legislative drafting, the budget process, or other areas within the LRB's area of expertise. (j) Perform other duties as may be assigned by the Clerk. 3. Personnel assigned to the LRB shall report to the County Clerk and comply with internal guidelines established by the Deputy County Clerk and the Clerk. 45 o 0 RULE NO. 31 SEVERAULM If any rule contained herein is in conflict with the provisions of the U.S. Constitution, State Constitution, Hawaii Revised Statutes, Hawar i County Charter, or the Hawai l County Code, such rule shall be deemed Invalid. Such invalidity shall not affect other rules contained herein which, otherwise, can be given effect without the invalid rule, and to this end these rules are severable. 46 11011211412 OT-312 P.001/024 F-2T1 u2:22Fa Fra-OFFIR ~TION PRACTICES 6 MM uau STATE of NAWAR eovaoe OFFICE OF INFORMATION PRACTICES rerswm~oo je„SRAK wA.w. W. I CAM%D rwf VJLD" „e,Townevawoe an MARY, IOr T,40Adw leeeeee-1eaD FAX pepeertele E,..... a've:mmaow rww.hDAMLeeMed FAR TAANSUITTAL DATE: April 14, 2008 TO: The Honorable Lincoln S.T. Ashida (FAX- 808.96141622) ofew of theCorporntion comoad (FAX- WS•966$169) Mr. Del Pranke FROM: Cathy L. Takaw TOTAL NO OF PAGES: 4 RE: Request for Opinion WO-G 05-020) This office is transmitting a letter dated April 14, 2006 to Lincoln Ashida from the OM CS of Information Practices. ? Originel is being mailed ro Yoa ? Original wX NOT be mailed to you. wafers re490red X addressed sad A. ; ThH WMaee is intended oo(T for the are of for bedvidwi or eaft to Wldeb it is b Armetion tbu is prirtlsgW or eootldoullaL If UM coutga g - to Y" A" or 60 am or dw render at the lotmW I r+dPleok"a >K~ nJrM WM for delhs py er U eadon or ~71eC eo of ehd, b aommndcatiw Is str3ctb > redpleoU et dmembwd^ dfaib Tom have roeehed Wb 2doo is ewer, pkm so as bm modiateb by kkvl ne m d seaere the "Wad to as at the above add.= via Ws US. Yestal UM m Tbaoh Yom' I °s ~g`A0Z EXHIBIT 11 -300-1 MUM Prom-OFF IOi ipi0jd1~TION PRACTICES 11010111112 p T-SRS P-00 004 F-2n STATE OF HAWM OFFICE OF THE LIEUTENANT GOVERNOR Judo IL AMM JL , OFFICE OF INFORMATION PRACTICE8 t°" 11. Maw NO. I CAFM CWFF CT WaDNe NO loUlN NorEl eTRNT, oil 1Q? pOq dl6/N3 ww"IdMLQerblO April 14, 2005 VIA FACSIMILE NO. (S08) 961-8622 The Honorable Lincoln S.T. AoMda Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 326 Hilo, Hawaii 96720 Re: Request for Opinion (RFOdi 05-020) Dear Mr. Ashida: This letter responds to your request for written confirmation of OIP's opinion discussed with you by telephone today regarding the Sunshine Law issue raised by Mr. Del Pranks regarding the reorganization of the Hawaii County Council (the "Coundlo) on April 6, 2006. Specifically, Mr. Pranks asked whether the Council's action of amending the agenda to consider the reorganization of the Council was in compliance with the Sunshine Law. The Sunshine Law provision at issue is section 92-7(c), Hawaii Revised Statutes (OARS'). Under this section, a filed agenda may be amended to add an item by a two-thirds recorded vote of all members to which the board is entitled; 'provided that no item shall be added to the agenda if it in of reasonably major importance and action thereon by the board will affect a significant number of persons.' Haw. Rev. Stat. 4 92-7(d) (2004). It is our understanding that at the April 6 meeting the Council voted by a 94 vote to amend the agenda for that meeting to add as an agenda item the organization of the Council. Specifically at issue was the leadership of the Council. Because the action to amend the agenda was approved by more than the required votes, the question presented is whether (1) consideration of the leadership of the I 1101E6114t ? SEt P.0011e4 F-211 W2400 FrmKFFIG iION PRACTICES The Iionorable Lincoln S.T. Ashida April 14, 2006 Page 2 sace~ and (2) the selection of a new Council Council is of reasonably major imPort Chair will affect a significant number of Persons. a4 It is our understanding, based upon a review of the Rules of Procedure of the Council of the County of Hawaii (2004) (the "Council Rules") and our discussion with you and County Clerk Constance Kiri% that the role of the Council Chai is to preside v 4 the serve as chief spokesman and representative of the Councill* to Rule meetings, and to perform various administrative functions. t ft No. Council Rules at 1 2 (designating the role of the Council Chair and setting for the duties of that o~x). The Council Chair has no greater voting 2rghts than the members of the Council. am j& Although the Council Chair mqY, dwough the some direction of the administrative functions the council Chair, ~ that Power to discretionary power over the business of the Council. Primary be signiftcant.r l~Aber, although we recognize that serving as the believe that if spokesman for the Council's s significant and important task we v of the Council that role is properly Performed it is irrelevant which of the members is performing that role. tbAt individual Given our belief that the role of Council over the actitionnsoof Council, we do greater control than other council membens bers of the Council is of reasonably major not believe that Consideration of the leadership new Council Chair will affect a importance, nor do we believe that the selection opinion that the Council did , W add significant number of persons. Accordingly it is our not violate the Sunshine Law by amending the agenda of the April 6 meeting the organization of the council as an agenda itam for that meeting. For eyample, Rule 4(6) of the Council Rules authorises the Council Chair to to waive committee hearing and to place Council Chair can only approve Council. We or deny s r do not power the the request with the written approver ~C~~~ Chair- AO=A if he P Cc re; dmugh committee betose betas placed upon the toes ~a• need to po apa" ass written in s We note that these two requireasents for amending an leadership of the Council is of reasonably f4w Ucordingly, the c,*unctive. J ads caul svea if the amended in acowdance with the Sunshine law if the importance, the Agthe ~'Cl would not effect atS~ifiCasu number cfODf ain. "on taken by effect limited a sm' over the because we have found that the Coned Chair may only Chair would affsd ofg" busineaa of the Council through the pwfwmaaa at the Council Chars administrative functions, we do not believe that selection of tbs Council a sisniftmt number of persons. ul:s4a Fra-G'?. ICippyTION PRACTICES 180111114 12 T-Ip F.RRUOU F-In The Honorable Lincoln S.T. Aahida ( ) April 14, 2006 Page 8 If you have any questions regarding the foregoing, pleW do not hesitate to contact our office. Very may, Leslie K $ondo Director Molt cc: Mr. Del Pranks ( O r Q IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAII Civ. No. 09-1-279K WEST HAWAII TODAY, (Declaratory Judgment and Injunction) Plaintiff, (Kona) VS. COUNTY COUNCIL OF THE COUNTY CERTIFICATE OF SERVICE OF HAWAII, J STANLEY YOSHIMOTO, DONALD IKEDA, GUY ENRIQUES, DENNIS "FRESH" ONISHI, EMILY I. NAEOLE, DOMINIC YAGONG, BRENDA FORD, KELLY GREENWELL, PETE HOFFMANN, in their official capacities as members of the Hawali County Council of the County of Hawaii, JOHN DOES 1- 10, JANE DOES 1-10, DOE CORPORATIONS, PARTNERSHIPS, GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing document was served upon the following by facsimile, on July 20, 2009: ROBERT D.S. KIM PO BOX 188 KEALAKEKUA, HI 96750 Attorney for Plaintiff WEST HAWAII TODAY DATED: Hilo, Hawaii, July 20, 2009. LINCOLN S.T. ASHIDA Corporation Counsel County of Hawaii 17