On June 3rd, 2009 County Council members Lani Kawahara and Tim Bynum started to actively pursue efforts to improve open government on Kauai this page is intended to document those efforts. The initial effort focused on three goals.
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration.
Goal # 2 - Make key public documents readily available to the public on the County's web site.
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner.
Note: Kauai Citizens started a petition to the County Council related to the three goals.
Petition Signatures through June 19th
Following the landmark Council meeting held July 22, 2009 in which Council Chair Kaipo Asing stated “I am willing as chair to work with you to solve the problems" changes asked for over two years ago are indeed starting to happen. (see below). We are very pleased at this turn of events and appreciate Mr. Asing's decision to allow the changes.
Writing editorials, creating this web site and telling the story of the struggle to meet the basic standards of democratic process on Kauai is not a decision we have taken lightly. All of the current members of the County Council are people who care deeply for Kauai. Our diversity and the different priorities, perspective and opinions we each have are good for our Island when we work together on a level playing field. When all of us have equal access to information and the mechanisms of government we make the best decisions. When people have as free and easy access as possible to public information the public adds tremendously to the deliberation and positively influences and enhances the outcome. When your voice is heard and considered you are more likely to support and accept the outcome even when it does not go your way.
Unfortunately the current system on Kauai is clearly not what it needs to be and there is not a fair and level playing field. Efforts to address these concerns have hit a brick wall and appropriate change should not be further delayed. We realize that these are opinions and ours are not superior, but we are seeking an open and fair hearing and decision making on reasonable proposals. An equal voice should be given to all the players with each of us held accountable for our actions and decisions. Listed below is a more detailed discussion including specific proposals to address the three issues we are highlighting. Needless to say theses are not the only issues and we are accepting of an outcome that is different than the one we are hoping for. However the Council's consideration of these issues is long overdue.
Goal # 1 - Allow all Councilmembers to place items on the Council agenda for consideration. Council Rules seem clear but like all rules are subject to interpretation. Section 2 states "In interpreting the rules, the intent of the Council shall be deemed to have been to: (a) carry out the majority view of the Council, yet provide the minority fair opportunity to express its view; (b) provide a written guide for an efficient and defined parliamentary procedure for Council deliberations so that its actions may be based on an informed and reasoned discussion of issues" When there is a dispute regarding an interpretation of the rules it seems logical to ask for a clarification or change of the rule in question. The most significant difference of opinion regarding the Council rules has to do with access to the agenda. Here are the two rules in question
Rule 10 (a) Introduction. Any bill or resolution may be introduced by any member. The original copy of any bill or resolution shall be written, dated, and signed by the introducer; otherwise it shall not be considered.
Rule 10 (c) Placement on Agenda. All bills and resolutions must be initialed by the Council Chair or, in the Chair's absence, the Vice Chair (or other designated chair as stated in Rule 3) in order to be placed on the agenda.
We believe a reasonable interpretation consistent with the intent stated in Section 2 of the rules is as stated that "any member can introduce any bill or resolution" and that the word "initial" empowers the Chair to appropriately manage the agenda by timing placement but not allowing him to keep a member's item off the agenda indefinitely. If the interpretation is that "initial" empowers the Chair to keep items off the agenda indefinitely then the Chair has, as The Garden Island has pointed out, "a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr." We feel it is important to clarify the Council rule and have proposed a resolution to do so. In a classic catch 22 the council chair has repeatedly refused to place the proposal on the agenda.
The State Office of information Practices (OIP), the State Agency created to interpret the Sunshine law, advised in a memo that the Council would be "acting in good faith" if we made a motion to place the item on the agenda during a Council Meeting. Having no other option we made the motion on Wednesday June 3rd, 2009. There was never a vote, however, because Chair Asing and County Attorney Al Castillo strongly argued their opinion that placement or even voting to place the amendment on the agenda would violate the Sunshine law. Any discussion, other than their opinion, was not allowed. Although there may be a number of ways to resolve any 'sunshine" concern, any discussion of them was also not allowed. So there was a motion and a second but no discussion of other Council members opinions or the OIP opinion was allowed and the motion on the floor was not properly disposed of. Other resolutions to clarify or amend Council rules related to a criteria for release of confidential documents and who is the client when the Council requests opinions of law have also not been allowed consideration by the Council Chair. The catch 22 remains.
August 6th 2009 - "Council kills proposed rule changes." Unfortunately a majority of the Council in a 4-3 vote failed to clarify the rule that has been used by Chair Asing to exercise preemptive veto power over proposed agenda items. The Council also failed in another 4-3 vote to create a proposed committee intended to provide a comprehensive review of council rules. In spite of these developments, when the Chair was asked if he would support Councilmembers' future requests to put resolutions and bills on the agenda, Asing said he would do so. Without support for the rule change "Time will tell."
Goal # 2 - Make key public documents readily available to the public on the County's web site. Councilmember Bynum early in his first term when the Chair and Clerk refused to give him access to electronic copies of minutes and other Council records proposed a bill regarding internet access. It would have encouraged increased use of the internet and required key public documents to be posted. This bill has never been allowed on the agenda. Over two years later the administration has complied without the bill. Currently all board and commission minutes and rules are routinely posted on the internet. Council minutes are not. At a minimum the Council website should include, Council rules, meeting minutes, bills under consideration, agenda packets that include supporting documents and reports of Council action taken. All of these documents are public and are being generated now. Making them routinely available to the public would not be too difficult of a task. It could actually reduce staff time as they would not have to repeatedly respond to individual requests for information.
July 2nd 2009, The council chair in a press release announced that minutes of Council meetings and reports of Council actions will start to be posted on the County's web site
Goal # 3 - Circulate Council Service documents equitably to all Councilmembers in a timely manner. We have outlined how information that comes to Council services via several sources is screened, delayed or withheld altogether. A greater concern is that information when provided is at times distributed inequitably. Some but not all members may receive information. On one level all that is needed to resolve this issue is direction to the staff from the Council Chair and County Clerk. In the last two years requests for meetings on office procedures have been denied. Imagine working in an office for over two years and never having a staff meeting. The County has a pretty sophisticated Information Technologies capability that is not being used at Council Services. Documents can be stored in shared folders available to council members and staff on their computers. These folders exist but they are not being used. No doubt there is a large volume of documents much of which is routine, but Councilmembers should have access to all the documents and determine for themselves what is important and what is routine not have that decision made for them. Perhaps there should be an audit on the information practices and procedures at Council Services. This is our mail that is being withheld from us.
Open Government Documents
Listed below are documents related to efforts since early 2007 to facilitate a more open government for Kauai.
Documents related to access of information, open government and placement on the agenda.
Listed below are a few of the items including bills and resolutions Council ChairListed below are a few of the items including bills and resolutions Council Chair Kaipo Asing refused to place on the agenda prior to July 2009.
Since my election to the Kauai County Council in December, I have been working to advance the council’s use of the internet to support efficient operations, provide more timely responses to constituents, and to widely disseminate our council and committee meeting minutes to educate/inform more citizens about issues that affect their daily lives.
Unfortunately, you will be disappointed to find out that efforts to provide council and committee meeting minutes in electronic format for the public on our county council website or for emailing, are opposed by Council Chair Asing and his appointed County Clerk Peter Nakamura.
Just as troubling is the lack of information coming into the Council Members’ offices from outside. Communications addressed to all Councilmembers (including emails, US mail, and Interoffice mail) are consistently and systematically screened by Mr. Nakamura. Mail for “all council members” does not necessarily get to all council members, and if it does, it may be delayed by days or weeks. Mail is doled out according to some criteria that are unknown to me and much of it is not delivered at all.
Imagine coming into a council meeting or committee meeting to find documents date- stamped “received” days earlier that are related to the agenda / or decision-making to be done that day. Imagine, even more interestingly, that such information may be provided to some but not all council members. Email intended for all Councilmembers is not sent electronically and when eventually circulated does not contain the return email address making it impossible to even acknowledge the communication or respond in any way.
In his time on the Council, council member Bynum has diligently attempted to address these issues by seeking an open dialog, clarifying council rules and leading legislative efforts to increase the availability of information but has been denied access to the Council agenda (an issue that he will outline separately).
Information technology provides necessary alternative methods of service that supplement traditional information services and dramatically increases the availability of information to more of our constituents. Harnessing the technology that is already in place here at the county is a win-win for our community and for the County Council.
Councilmember Bynum and I have set up an alternate website, www.kauaiinfo.org, which documents our attempts to work with Chair Asing and Mr. Nakamura to advance the County Council into 21st century government transparency. Visit www.kauaiinfo.org where we will also provide the public documents which we are unable to post on the county council website due to the environment cultivated by Chair Asing and Mr. Nakamura. We will get the public information to you. We’re doing it because they won’t.
Right now, our dedicated staff and council members spend copious amounts of time photocopying, collating and generally using reams upon reams of paper getting ready for each and every council meeting and attending to every request for information that comes across the desk. And constituents drive from all over the island to retrieve those copies. Then they drive back home. The State Senate started going paperless in 2007. Most of their work is now online. The Mayor’s administration and all Kauai County boards and commissions provide meeting minutes online. It is past time the County Council provide that same standard of government transparency.
The current practices at Council Services that control access to information are indefensible and an embarrassment. They stand in stark contrast to your legal right to expect your government to inform you, educate you and urge you to become an active participant. I am calling for your support, for your and my access to information, for public discussion. Write a letter to The Garden Island, the Mayor, the County Attorney and to council members to request consideration of specific measures to move Kauai’s government to the open process we all deserve. Email can be sent to firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com (this new address will be received by all Councilmembers) and firstname.lastname@example.org (will become part of public record). Mail can be sent to Council Services 4396 Rice Street Room 206, Lihue, Hawaii 96766. A more detailed discussion along with copies of documents, proposed bills and resolutions related to this issue can be accessed at www.kauaiinfo.org
Sunshine on Kauai?
A free democracy values transparency, ready access to information and open public dialogue. While decisions are made by a majority vote, the voice of the minority is to be ensured. In good government, light is shed on issues in free, fair hearings and discourse. Yet in my over two years as a member of the Kaua‘i County Council I have found that the legislative process as currently practiced on Kaua‘i falls far short of these fundamental democratic standards. Access to basic information is being censored, or released unfairly. Open dialogue and debate on vital issues is significantly stifled, and Council rules are often ignored, frequently misinterpreted and largely ineffective. Those of you who wonder why things don’t get done in County Government might be surprised by one of the reasons: no sunshine.
Since being elected to the Council I have discovered, to my dismay, that access to information is anything but democratic. In fact voters might be surprised to learn that even as a member of the Council, my access is strictly controlled. In a number of ways that will be outlined by Councilmember Kawahara, many documents intended for all Council Members are screened, delayed, or even withheld by the County Clerk. Some Council Members are given access to information that others are not. I found this situation intolerable and inexcusable. I requested and eventually demanded that the situation be corrected. And that simple forthright request has turned into a chain of secrecy and denials from the very officials responsible for making information available.
The County Clerk—who by adopted Council rules is required to “forward at once to the proper parties all communications and other matters “—refused to rectify the situation, telling me he needs direction from the Council Chair, who, by Council rules, supervises the Clerk. The Council Chair has repeatedly refused to address these concerns in any manner. When I was new on the Council the last thing I wanted was conflict with Council Chair Kaipo Asing, a man with 26 years of public service that I have long respected and admired. After two years of doing my best to work with him on these issues, I now think the voters and the general public deserve to know how business as usual at the Kaua‘i County Council is dysfunctional and leaves the public in the dark.
In addition to censorship and information favoritism, open dialogue and public debate is also being thwarted by the Council Chair. He refuses to place some councilmember’s items on the agenda. He does this despite the Council rule which states “any bill or resolution may be introduced by any member.” Another bedrock principal of democracy is equal access to open dialogue and fair public debate. If you can persuade the majority, then your issue is adopted, if not, so be it — but the crucial point is that the discussion is held and the minority has had a voice. Council rules state that the Council’s responsibility is to “carry out the majority view of the Council, yet provide the minority fair opportunity to express its view.” The Council Chair’s refusal to place all of the public’s key issues and proposals on the agenda is inappropriate. It is the opposite of the “fair opportunity” inherent in the notion of open government.
I believe these issues are very serious. In politics, access to information equates to power. Power and information by rights belong to the people who elected us and it should be available equally to all. If you believe that all Council members should have equal access to information, that the public should have convenient and ready access to public information, and that all the individuals you elected should have their proposals considered in an open and fair hearing, please write to your Council members and request that these issues be placed on the agenda and democratically decided. If a majority of the Council disagrees with the proposals so be it, but let’s not continue to censor the dialog.
E-mail can be sent to email@example.com or firstname.lastname@example.org. Mail can be sent to Council Services 4396 Rice Street Room 206, Lihu‘e, HI 96766. A more detailed discussion along with copies of documents, proposed bills and resolutions related to this issue can be accessed at www.kauaiinfo.org.
Editor’s Note: These guest viewpoints submitted to The Garden Island newspaper ran unedited.
In Our Opinion
When our elected leaders fail to do everything in their power to bring their business before us, we fail as a community. Their business, governing us on behalf of us, is our business.
We become concerned when we learn from a couple crusading Kaua'i County Council members that there has been a conscious decision and a pile of excuses by County Clerk Peter Nakamura to not do simple things like hand out mail in a timely manner or post meeting minutes online to make it easier for us constituents to follow what our representatives are doing in office.
We grow alarmed when we hear that Council Chair Kaipo Asing routinely twists a rule so he can essentially hold veto power over setting the agenda.
An unfortunately limited sector of the public has for years hollered for a more open government. Fortunately, Council members Tim Bynum and Lani Kawahara stood up this month and went all in. The chips are on the table; their cards have been flipped over.
While we're not ready to place a wager on this political gamble, we will applaud a smart move when we see one. In the least, it took a lot of guts. It would be nice if this was simply them doing a part of the job that we put them there to do. But we know that politically it would have been a lot easier to just sit on the sidelines and deal with the current malfunctioning system.
As it turns out, all seven members of of our local legislative body are playing this hand so they each deserve credit. Even the man who tried to stop the cards from being dealt.
The council unanimously decided last week to have a public talk next month on government transparency. The communication from Bynum and Kawahara, which each member voted in favor of discussing, details four primary issues: Council members' access to the agenda; the placement of public documents, including meeting minutes, on the county Web site; equitable and timely circulation of council service documents; general access to information by the public and council members.
Sadly, the maverick duo had to perform some tricky political maneuvering to even have the item considered by the body. After getting shut down the prior week over a concern about violating the Sunshine Law by introducing an item of "reasonably major importance" to the agenda the same day as the meeting, the pair tried again the next week by asking to have a future discussion on the issue instead of trying to have the debate right then. This passed the county attorney's sniff test and next thing the chair knew even he was voting in favor of having a discussion on government transparency.
How could he not? His hand was forced.
With the camera rolling and an eager journalist jotting notes, Asing couldn't hide behind closed doors this time to shut down such an initiative. His only other apparent move would have been to go on the public record against wanting to talk about government transparency. That would have been political suicide, which he might not care about given the fact that last election season he said this would be his last term, but it would have been a blemish on his 26 -year career as a councilman. But this is just speculation.
His opinions on the matter have remained mostly private. The only time we were able to let the public in on what their top-ranked county lawmaker thought about Bynum and Kawahara's push to have this talk was after the June 3 meeting when Asing simply said he had no plans to put the matter on the agenda and for no particular reason.
When Bynum and Kawahara threw down their ace in the hole at the June 16 meeting, it was all smiles aside from an irksome amendment to the communication. The amendment which the council unanimously approved, gave the chair some leeway in terms of when the discussion should be held - at the July 8 or July 22 meeting.
Bynum's willingness to accept this was hard to swallow considering he's been trying to have these changes made for the past two years. A more appropriate amendment would have been a request to hold a special council meeting so the issue could be discussed in the time it deserves, free from the shackles of a multi -page agenda packed with other pressing matters. But we can stomach his "so what's another couple weeks" mentality because it was such a struggle to get to this point.
We strongly urge the council chair to put the communication on the agenda at the earlier date, rather than later. We also ask that he not tack it on at the end of the agenda, which can limit public participation and bring down the quality of the discussion due to simple fatigue when the meetings stretch on for hours.
The council members got it right with their decision to have an open discussion on a critical issue that has been simmering for years. The public's outpouring of support for this talk, evidenced by a citizens' petition and a plethora of letters and phone calls, may have been what brought this to a boil.
In the spirit of healthy dialogue, let's have an honest discussion about government transparency, our current pitfalls and the steps needed to let some more sunshine into these chambers.
Open Government Update
Follow the rules. Garden Island.06 04.09
Bynum, Kawahara continue crusade. Garden Island.06.12.09.09
Council to air open government concerns. Garden Island.06.17.09.09
Time will tell.Garden Island.06.23.09
Council minutes posted online. Garden Island.07.03.09
Promise kept. The Garden Island.07.18.09
Council airs dirty laundry.Garden Island.07.23.09
‘Hallelujah!’ Council finds harmony — or not.Garden Island.07.24.09
Council’s argument bearing fruit.Garden Island.07.31.09
Council kills proposed rule changes.Garden Island.08.06.09
Council Rule 15(b) ignored.Garden Island.08.06.09
Council members push for openness.Advertiser.10.6.09
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