Interesting Emails at Lincoln Ashida’s Office

The other day I posted:

Lincoln Ashida on the West Hawaii Today Lawsuit and the Council

Well the link to internal memo wasn’t working at the time.  It is now available to the public and reads as follows:

From: Rodillas, Martha
To: “Dawn.M.Shimabukuro@hawaii.gov”
Cc: Ashida, Lincoln
Subject: FW: Hawai`i County Council Reorganization
Date: 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: Mrodilla@co.hawaii.hi.us

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 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 OIP 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 Onishi. 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
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 Greenwell. 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 5th 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 important to note here that Mr. Onishi’s resolution that was allegedly discussed with Mr. Greenwell that proposed to reduce the number of committees from nine to five 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., Hāmākua and Ka‘ū) 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 Hawai‘i 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.

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 Hawai‘i County Council’s position.

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

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The original draft of this can be found here.

One Response

  1. […] It boggles my mind why Hawaii County Corporation Counsel Lincoln Ashida wants to exclude the public from hearing his update regarding WHT’s lawsuit trying to reverse the Hawaii County Council coup. If this update is held in executive session it will simply make the public more distrustful of the council. In a nutshell, it seems both Lincoln Ashida and the council has something to hide. Which is pretty strange since Lincoln Ashida seems to be very confident that the county will ultimately prevail against WHT’…. […]

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