Lincoln Ashida: “What really happened with the West Hawai‘i Today’s lawsuit against the Hawai‘i County Council”

Lincoln Ashida
From the Desk of Lincoln Ashida:

On October 13, 2009 the West Hawai‘i Today and County entered into a settlement agreement disposing of all allegations and claims made by the newspaper against the Hawai‘i County Council.  The WHT earlier sued the Council, claiming the Council had violated Hawai‘i’s “Sunshine Law” since more than four members of the Council discussed the possible reorganization of leadership in June of 2009 outside of an officially noticed meeting.  The WHT also claimed more than two Council members participated in an April 2009 trip to Oahu to lobby State legislators; the WHT alleges that during this trip “official board business” was discussed and agreements were made to submit and pass legislation once the councilors returned to the Big Island.

In my previous service to our community as a prosecutor, I was involved in many cases followed and reported by our local media.  As previously expressed in past website messages, no doubt it is difficult for reporters (through no fault of their own) with limited legal background and limited column space to sometimes accurately and completely report on legal events.  Public misinformation is further proliferated through thoughtless and inaccurate public commentary found throughout the internet.  We noted at least one blogger was someone who held themselves out as an attorney and was offering “commentary.”  As all competent trial attorneys know, actual knowledge of the crucial details of a case is necessary in order for credible and accurate commentary to be offered.  If not, misrepresentations and misinformation grow legs and begin to walk around as facts.  This case was no different.

The original allegation

On June 18, 2009, the attorney for the West Hawai‘i Today filed a formal complaint with the State of Hawai‘i Office of Information Practices, alleging that the Sunshine Law had been violated.  In its “statement of facts,” the newspaper stated as follows:

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.

This complaint to OIP was premised on the erroneous belief there was discussion among the “five majority members.”  The following heated exchange occurred at the June 16, 2009 meeting of the Council:

MS. FORD:    Excuse me, am I going to be allowed to comment without interruption?

MR. GOODENOW:   The Rules say that you should speak on the merits or demerits of the bill –

MS. FORD:    I am.

MR. GOODENOW:   I think we are straying from –

MS. FORD:    I don’t think we are because we have a Sunshine Law violation here and we have some untruths being spoken to different Council Members in order to round up the votes. And now I find out that five of you have agreed to these resolutions before we even got our boards or, at least, before I got my board.

The allegation Mr. Yoshimoto spoke with at least four other Council members was further proliferated in WHT’s court documents.  This was stated and repeated in court documents filed on July 10, 2009, July 15, 2009, and July 16, 2009.

The unfortunate injustice is this misinformation was not stopped when it should have been.  As the WHT loaded up to attack the Council Chair for his apparent “admission” he spoke with four other Council members, the County was placed in the position of having to defend individual Council members from threats made by the WHT that they would be seeking a criminal prosecution.  On September 2, 2009, in notifying the County the WHT intended to amend their complaint to include the allegations involving the Oahu trip, their attorney notified me via email as follows:

Based on the newly discovered information I will be making a referral of the matter to the Attorney General and Prosecuting Attorney.  I will copy you on those referrals as soon as they are completed.

Hoffmann NEVER said Yoshimoto spoke with four others

In defending against the WHT’s request for a temporary restraining order, the County submitted to the Court an affidavit from Mr. Yoshimoto stating he did not “tell, suggest, imply, or infer to Mr. Hoffmann that (he) had five votes to pass the subject reorganization resolutions.”  There was some criticism from the public as well as two Council members who at the time questioned why an affidavit from Mr. Hoffmann was not included.  This discussion with the Council was occurring in open session, and it would have been legally and ethically improper for me to respond publicly.

Here is a copy of Mr. Hoffmann’s affidavit.  As you can see, Mr. Hoffmann makes clear Mr. Yoshimoto never said he spoke with any other Council member other than Dennis Onishi and Guy Enriques.  If this statement of “having five votes” was made (either by Mr. Yoshimoto or Mr. Hoffmann), it was a simple recognition that Mr. Yoshimoto did not need to speak with Council Members Donald Ikeda and Emily Nae`ole, as it was likely they would support the proposed reorganization.

Thus the WHT’s case with respect to allegations Mr. Yoshimoto “spoke with four others” had no factual basis.  What was left was their allegation the total number of Council members involved in the discussion (whether for or against the reorganization) exceeded four.  This meant at least one of the “minority members” of the Council would have to be part of the “serial communication” in order for their lawsuit to stick.

After it was revealed what Mr. Hoffmann would say if called to testify, the WHT amended their lawsuit a second time to include the allegations that the “majority members” violated the Sunshine Law while on their trip to the State Legislature.

Why were private attorneys necessary for some Council members?

When the WHT attorney threatened in writing to make a “referral of the matter to the Attorney General and the Prosecuting Attorney,” our office was ethically obliged to consult with another County client, the Office of the Prosecuting Attorney, to determine if they would waive any conflict of interest if we continued to represent individual Council members with respect to issues related to their possible criminal misconduct.  Although the likelihood of a criminal prosecution under these facts was remote at best, we followed our responsibility under the Hawai‘i Rules of Professional Conduct.  After consultation, the Prosecuting Attorney administration refused to waive conflict.  What this meant was the Corporation Counsel would not be allowed to represent individual Council members with respect to their potential criminal liability exposure.

Some will say in hindsight this was a waste of time and money.  The County will be required to pay the legal fees and costs of the private attorneys hired.  However this action was necessitated by threats made by the WHT (it is our understanding such a referral was never made).  The threat was made before the commencement of the evidentiary hearing in Court where the WHT had subpoenaed all nine Council members.  This is why it was necessary to have private counsel on board for individual Council members, and not “wait to see what happens.”  On September 10, 2009, we notified each Council member in writing as to the WHT’s threats and the Prosecuting Attorney’s decision to not waive any conflict of interest.

So was there a Sunshine Law violation prior to the first reorganization attempt?

The WHT claims victory in their paper and boasts of the “landmark ruling” since the Court issued a temporary restraining order.  No doubt this order motivated the Council to undo their reorganization (and provides the basis for the payment of a portion of the WHT attorney fees); the County does not dispute that.  However the simple fact is it was an order of limited duration (this is why it is called “temporary” and why an evidentiary hearing on the preliminary and permanent injunction is required by Court rule).  Further, the order never came into effect so as to “block” any action of the Council, since the Council undid their reorganization prior to the effective date of the order.  The hearing on the preliminary injunction (which would have led to a definitive judicial finding of whether the Council violated the Sunshine Law) was halted because of this settlement.

The WHT initiated settlement negotiations in this case, not the County.  Their initial offer of October 1, 2009 required the County to admit there was a Sunshine Law violation in the June 16 reorganization effort, and pay all attorney fees and costs.  This was rejected by the County on October 9, 2009.

The County’s offer of settlement dated October 9, 2009 required a complete dismissal of all claims with prejudice, and the payment of only a portion of the WHT’s attorney fees.  This was accepted by the WHT on October 12, 2009.

So will we ever know if there was a Sunshine Law violation?  OIP continues their investigation.  It is very possible they may find a Sunshine Law violation occurred, but as we submitted from the inception of this case, any violation was inadvertent.  Then again, they may find no violation, since there is no evidence at any one time more than four members of the Council who discussed the reorganization were either “for” or “against” the measure.  There is a reason their opinion is taking so long.  It is an unsettled area of the law and no OIP or Attorney General legal opinions exist.  It is a “case of first impression” for the Sunshine Law.

In any event, the setting aside of the action taken, or redoing the action (as the Council had done in this case) is the only practical “remedy” found in Hawai‘i’s Sunshine Law.  This was done early on by the Council (before the TRO came into effect); this is the reason the Court granted the County’s motion to dismiss a portion of the WHT lawsuit as moot.  There was no other “pound of flesh” the WHT could extract from the Council majority.

When interviewed by a WHT reporter on October 13, 2009, I asked the County be given a fair chance to express its reaction to the settlement of this lawsuit.  I indicated a balanced playing field was necessary for the public benefit, and expressed my reservations since the recent article on the Brenda Ford lawsuit written by a Hawai‘i Tribune-Herald reporter appeared in the WHT, but with all of my comments eliminated.

What was not reported in the WHT article about the WHT case was our observation this lawsuit revealed this was not an “East Hawai‘i versus West Hawai‘i” or “Majority versus Minority” issue.  In order for a Sunshine Law violation to stick, it was clear members from both East and West Hawai‘i, as well as from the “majority” and “minority” factions of the Council were necessarily involved in discussions.  In a time of public divisiveness this was a very important development.  In my recent observations and discussions with the Council, I find their “on camera” and “in the heat of the meeting” actions somewhat more theater than malice towards one another.  Their non-meeting interaction with one another differs dramatically and is professional and warm.

I was also asked by the WHT reporter what I believed the Council learned from this experience.  I always look for the positive in things; even difficult and trying circumstances present learning opportunities for the future.  Again what was not reported was my observation that the litigation process, although at times difficult for many members, had the product of galvanizing the entire Council.  Whether East or West or majority or minority, the Council understands its successes in the future will be the direct result of their willingness to cordially and professionally interact with one another, whether they agree or disagree on contentious County issues.  This by far is the best development in this case.  A recent WHT editorial talks about “winning” or “losing” the lawsuit.  This bravado is not important for the County.  What is important is the recognition the only party we should fight for is the community we all serve.  To this end this settlement that brings an end to the litigation and serves as the catalyst for healthier Council relations in the future will indeed serve the people.