From the Desk of Lincoln Ashida:
The West Hawai‘i Today’s lawsuit against the Hawai‘i County Council. On July 10, 2009, the West Hawai‘i Today newspaper filed suit against the Hawai‘i County Council and all nine Council members in their official capacity, alleging a violation of Hawai‘i’s “Sunshine Law.” The lawsuit is based on the Council’s reorganization of some leadership positions at their June 16, 2009 meeting in Kona. The lawsuit alleges some Council members engaged in a series of “serial communications” that circumvented the State’s Sunshine Law, and had the net effect of allowing the Council members to discuss the reorganization outside of a properly noticed meeting.
The State of Hawai‘i’s Sunshine Law is commonly referred to as the “open meetings law;” it requires all boards under its jurisdiction to transact official business at a properly noticed meeting. The law prohibits informal meetings to discuss official business between more than two board members.
One exception to the general “two member” rule is the discussion of the board’s leadership. For nine-member boards like our Council, the law permits up to four members to privately discuss leadership “without limitation or subsequent reporting.” This means unlike the permitted “two member” rule, the Sunshine Law allows up to four Council members to discuss how they will vote on a particular measure concerning the future leadership of their board.
The West Hawai‘i Today’s lawsuit seeks three basic things:
- A declaration from the Court that there was a Sunshine Law violation;
- A declaration from the Court that the reorganization was invalid; and
- Reasonable attorney’s fees and costs.
Our office also confirmed with the West Hawai‘i Today’s attorney, Robert Kim, Esq., that the newspaper also seeks to have all official actions taken by the reorganized Council and committees declared invalid. We thank Mr. Kim for his candor and providing the Council a “heads up” on the remedies their lawsuit seeks. In my many dealings with Mr. Kim, he has consistently demonstrated he is the finest example of a lawyer gentleman and his civility is much appreciated.
At the request of the Office of Information Practices (OIP) and with the consent of the Hawai‘i County Council, the Corporation Counsel responded to three complaints filed with OIP concerning the reorganization of the leadership of the Council and its standing committees. You may read the full text of the County’s email response here. At the request of OIP, since time was of the essence, they sought a response from the Council as soon as possible.
Inadvertent violations of the Sunshine Law
Unfortunately, inadvertent violations of the Sunshine Law by board members when discussing leadership changes is common. OIP’s recent legal opinion concerning “serial communications” has dramatically (and properly) limited the extent that board members may discuss board business. Prior to the “serial communications” opinion, two board members would routinely discuss board business. Once that discussion was completed, they would move on to discuss the same board business with another board member, and so on. OIP correctly opined that such “serial communications” violated the intent of the Sunshine Law by essentially allowing more than two board members to discuss board business.
However you can see how the discussion of leadership changes (where up to four members may participate) may be problematic for board members. Since they are not limited to discussing the matter with just two members, unless they know who the other board member discussed the matter with, inadvertent violations of the Sunshine Law may frequently occur.
So where did that leave our Council on June 16? Instead of retreating into a recess or attempting to “defer” the matter to another day, the Council moved forward to determine what occurred and to seek a possible remedy or cure. The Sunshine Law provides no guidance with respect to “what to do” when possible violations have occurred. In prior discussions with the former leadership of OIP, the remedy of placing the nature of the contacts on the record was viewed as a way of mitigating any violation. This is exactly what was done by the present Council on June 16. Each Council member was asked to place on the record who they spoke with to discuss the reorganization. This is how we learned of the seven members being involved either directly or serially as discussed above. Although this effort may fall short of a “cure” since the violation had already occurred, it nonetheless served as an attempt by the Council to mitigate the harm caused by the violation by placing into the public record all contacts they had with one another concerning the reorganization.
Of course, OIP will ultimately decide to what extent the Sunshine Law was violated, and the range of remedies available to the Council and public. One possible extreme is a finding that the actions of the Council were willful. This would subject the Council to possible criminal prosecution. Although unlikely, it serves as a very important reminder to all board members of the sanctity of the Sunshine Law and the need to respect the public’s right to participate in the official affairs of their government.
Having now the benefit of hindsight, and having read the lawsuit filed by the West Hawai‘i Today, we have the following observations concerning the highly publicized Council meeting of June 16:
- The Council’s “coup.” Some local media sources have described the actions of the Council majority on June 16 as a “coup.” Merriam-Webster defines “coup” as “a brilliant, sudden, and unusually highly successful stroke or act.” We surmise these media sources really intended to infer there was a “coups d`etat,” defined as “a sudden decisive exercise of force in politics.” What definition most accurately describes the actions of the Council on June 16 will most likely be determined by the future of the present majority, their initiatives and their ability to craft meaningful legislation for the benefit of all island residents.
- The Sunshine Law encourages self-reporting of violations. Historically there has been some valid criticism of the Sunshine Law lacking “teeth” in enforcing violations. Absent the provision calling for criminal prosecution where there are willful violations, there are no civil remedies such as the imposition of fines or even the setting aside of actions taken by the board (with the exception of a lawsuit being filed within the statutorily mandated time, as West Hawai‘i Today has done). However this absence of an immediate civil penalty has the effect of encouraging board members to admit violations of the Sunshine Law and in turn, provides the public with information they would not ordinarily have. This is a good thing. An example of this occurred at the June 16 Council meeting. All Council members were asked in public and on the record to disclose the contacts they had with one another, and they did so. Now we recognize there may be some criticism that not all members were candid, or did not describe the extent of their contact with one another, or that they should not have violated the Sunshine Law in the first place. We cannot and do not endeavor to control what some may think or believe. The option the Council followed was not to retreat into recess or defer discussion of the allegations, but instead to individually ask all members to place on the record who they discussed the proposed reorganization with. When considering the extreme option of having the Council members make no statement and simply allowing the OIP to conduct an investigation devoid of facts, it appears the route followed by the Council was preferable.
What does the Council need to do now?
Within 20 days after service of the lawsuit on the County, our office will be filing a response to the West Hawai‘i Today’s lawsuit in Court. Since the lawsuit seeks to invalidate all post-reorganization actions taken by the Council, a decision was made by the Council to cancel the committee meetings scheduled for July 21, 2009. This will allow attorneys from our office to properly brief the Council at its regularly scheduled meeting on July 22, 2009 with respect to the specifics of this lawsuit, and the ramifications of the Council moving ahead in taking official action while the lawsuit is pending.
There is no “unringing of the bell”
Some public criticism has focused on the discussion of the Council on June 16 once possible violations were revealed by them. On the one extreme, there are some who believe the violations were willful and the only possible “cure” is the criminal prosecution of the offending Council members. As with all matters involving our local government, every citizen is entitled to their opinion, and that right will always be respected. However before there is a rush to judgment and conviction, respect for the adjudicatory process and hearing all sides of any controversy is imperative and strongly urged.
In the case of the Council’s reorganization, there can be no “unringing of the bell.” Assuming a violation is found, this harm to the public is the basis upon which much of the present vocal criticism is premised.
On June 16, after the Council placed all of their contacts on the record, that was the extent of what they could do. Had no lawsuit been filed, upon expiration of ninety days from the date of OIP’s opinion, Council business would have continued based on the reorganization. This is not uncommon. When boards subject to the Sunshine Law commit inadvertent violations, often the contacts that are the basis of the violation are placed on the record by board members. Assuming the public is satisfied with this remedy, the board proceeds without the need to take any other formal action.
The filing of West Hawai‘i Today’s lawsuit dramatically changes things. Since the lawsuit seeks the invalidation of the reorganization, the Court will now be asked to determine to what extent any Sunshine Law violation invalidated the reorganization and any subsequent official action taken by the Council. The Court may very well find there was an inadvertent violation and allow the reorganization to stand. Similarly the Court may find there was an inadvertent violation, but based on the harm to the public, the reorganization is invalid. The Court could further order subsequent official actions of the reorganized Council are invalid.
These (and the other possible) outcomes are something outside the ultimate control of the West Hawai‘i Today and the Council. For the Council, their present charge must be to move forward with the people’s business in a responsible manner while being cognizant of the legal challenges that they face. This may include a collective decision by the Council to hear the reorganization resolutions again, as well as all resolutions and bills heard, deliberated and decided by the Council and its committees on July 7 and 8.
The danger of public advocacy based on misinformation
A remarkable written public statement concerning the Council’s response to OIP’s inquiry, made by member of the public and brought to our attention was this:
Sadly the joke of the day is the report prepared by Corporation Counsel Lincoln Ashida, submitted to the Office of Information Practices (OIP). His report was written in response to OIP’s inquiry about a possible violation of the Sunshine Law resulting from the private interactions of certain council members planning the ouster of council members Ford and Yagong as Chairs of certain council committees and of Pete Hoffmann from his officer position as council Vice Chair. Lincoln Ashida’s “coup report” does not identify any willful violation of the Sunshine Law and instead argues in favor of absolving the council members of any wrongdoing.
The suggestion that the attorney for the Council should advocate that his clients willfully violated the Sunshine Law (thereby subjecting them to criminal prosecution) is something we would expect from laypeople unfamiliar with the Hawai‘i Rules of Professional Conduct. What was truly astounding was the above statement was made by an attorney who has been licensed to practice in Hawai‘i since 2006.
The very heart of the Hawai‘i Supreme Court’s rules governing attorney conduct in Hawai‘i says “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is further embodied in Rule 3.1 of the Hawai‘i Rules of Professional Conduct, which states in pertinent part (emphasis supplied) that “A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
As has been repeatedly pointed out in the media, the finding of a willful violation of the Sunshine Law by Council members may subject them to criminal prosecution with a resulting jail sentence. It is disingenuous for any lawyer with any knowledge of Hawai‘i’s rules of ethics to assert that an attorney should “throw their client under the bus” for the sake of currying favor with polarized public sentiment. The adversarial system contemplates, and our ethics rules demand that attorneys conduct themselves in a manner consistent with having both sides of any dispute bring all of their arguments forward so that a court or other fact-finding body may come to an informed decision.
The argument by this lawyer is similar to the uninformed criticism I heard when I served this County as a prosecutor. Public defenders are public servants who are charged with representing individuals accused of criminal acts. I sometimes heard the criticism of them, “How can they represent crooks,” by a portion of the public that believed all law offenders should bypass the judicial process and proceed straight to jail.
This is not to suggest our citizens cannot have these views and voice their opinions. However attorneys in our State have a greater responsibility. Hawai‘i Supreme Court Chief Justice Ronald Moon has been a tireless advocate for the need of all attorneys in Hawai‘i to do their part to improve the image of the legal profession. The Chief Justice’s charge to all of us has gone beyond promoting the aspirational requirement of pro bono service contemplated in our ethics rules, but extends to ensuring the rules of civility and fair dealing are strictly enforced. To this end, lawyers should not knowingly publicly advocate a “duty” on the part of Corporation Counsel that is diametrically repugnant to the core responsibility a lawyer has of zealous representation in the adversarial system.
This is also not to suggest in any way that the Corporation Counsel would ever further any effort that would not be consistent with the best interests of the government or public. We are well aware of our obligation under Rule 1.13 of the Rules of Professional Conduct. Had there been any indication the acts of any Council member were willful with respect to a violation of the Sunshine Law, appropriate action would have been taken. In the present case, by having the Office of Information Practices conduct an independent review and analysis, we have complied with part (f)(3) of the rule by “advising that a separate legal opinion on the matter be sought and considered.”
In our weekly message of April 21, 2008 (you can read it here), we explained the duty attorneys have to their clients, and why under our laws the public at large is not the client, despite our roles as public servants. All of this may not change someone’s opinion about how things “should be.” However we hope this has provided adequate background and reasons as to why the Corporation Counsel is required to take certain legal positions on various issues. The critical review and commentary of the actions of elected and appointed public servants is important for a strong democracy. However irresponsible and inflammatory statements made by an attorney advocating a position contrary to the requirements of the Hawai‘i Rules of Professional Conduct is contrary to the Chief Justice’s vision of improving the image of the legal profession.
It is an honor to serve all the people of the County of Hawai‘i. As ever, if you have any questions on the above, please contact me via email at Lashida@co.hawaii.hi.us, or telephone at (808) 961-8304, extension 118. This message was posted on July 15, 2009 at 2:00 p.m.
Filed under: Big Island, Blogs, County Council, Legal, Newspapers | Tagged: Hawaii County Council Lawsuit, Lincoln Ashida, Sunshine Law, West Hawaii Today | 6 Comments »