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Another complaint is filed against Mike White

Council chair is accused of violating state Sunshine Law

Another complaint was filed against Maui County Council Chair Mike White on Friday, requesting an investigation and ruling by the Office of Information Practices for “egregious violations” of the state Sunshine Law.

The Hawaii Alliance for Progressive Action claims that White met with multiple members of the council, discussed the council organization and came to a decision that involved agreement by a quorum — all without public notice or a public meeting — shortly after Election Day. The group’s filing argues that White’s actions violate the law or spirit of the law and that a formal ruling by OIP be issued with recommended penalties, if appropriate.

“The Sunshine Law, like all other laws, should be taken seriously and followed,” Gary Hooser, HAPA board president, said in a news release. “The point of this law is to make government open and accountable to ‘the people’ for its decisions. As a legislative body, county councils should be held to the highest standard and lead by good example.”

White countered in an email to The Maui News that an opinion letter published by OIP on Nov. 14, 2002, confirmed that incoming council members are not subject to the state Sunshine Law until taking office. He added that the complaint filed by HAPA is “highly political and unsubstantiated.

“This is the same political organization that trained many of the ‘Ohana Coalition candidates, including my opponent, that ran against sitting members in the last election,” White said. “This organization and their supporters are using fear tactics and intimidation to try and get their way.”

OIP Director Cheryl Park confirmed receipt of the complaint and said that her office sent a letter to the County Council on Friday afternoon seeking a response. She said it would be a couple of weeks before the response is received and was not sure when her office would make a ruling.

“Normally appeals take a long time because we have to look into the law,” Park said Friday. “This might be a special circumstance because we don’t want to hold up the business of government, so we will take a really expeditious look at it.”

The first meeting of the Maui County Council will be Monday, during which the full council will vote on leadership positions. The meeting is open to the public, and testimony will be taken at 2 p.m.

The complaint is the second in two weeks attacking White. SHAKA member Mark Sheehan filed a complaint with the county Board of Ethics on Dec. 20 regarding the same issue. Ethics officials said that the complaint will probably be heard Jan. 11.

In HAPA’s complaint, the group recognizes that OIP opinions and rulings are considered precedent-setting and permissible in court. Group members hope that the office’s ruling in the matter will “create such a precedent” that all other county councils in the state will “cease to play fast and loose” with the Sunshine Law “as is often a common practice for council organizing and other matters.”

HAPA also asked the office to review and issue an opinion on the Maui County corporation counsel’s position, which the group claims “directly contradicts the spirit and intent” of the law. In a recent request for an opinion, the counsel said that council members are not subject to the Sunshine Law for matters relating to future council terms prior to the term’s start and no other laws were violated.

“The Office of Information Practices has been crystal clear with their forewarnings through formal opinions and through statements made directly to this very same seated council,” HAPA’s complaint reads. “Yet still, the meetings occur and the serial communicating continues. Let this council be made an example of, that the Sunshine Law, like all other laws, should be taken seriously and followed.”

White pointed to other legislative bodies that have informally organized and have announced leadership teams in the media, including the Honolulu City Council and the Hawaii County Council.

“There should not be a double standard for Maui County,” he said.

In an article published Thursday on the council’s website, White detailed events following the election and claimed that other council members had tried organizing leadership positions as well.

White said that Council Member Bob Carroll had been approached by Council Member Elle Cochran, offering him chairmanship of the council with the support of other members supported by the ‘Ohana Coalition. He added that Cochran told Carroll he would have to discuss with Council Member Don Guzman as to which one of them would be chair.

The full article can be read at mauicouncil.org/newsroom/misinformation-being-spread-on-council-organization.

The two complaints filed against White appear to be similar to a 2006 Circuit Court decision against the Honolulu City Council. In that case, the council had introduced a resolution that sought to reorganize the council’s standing committees.

Honolulu newspapers reported that council members had discussed the reorganization of the council’s standing committees before the scheduled meeting. Former OIP Director Leslie Kondo questioned the validity of the resolution in a letter to then-council Chair Donovan Dela Cruz, calling the reorganization of standing committees “council business” that must be done in a “properly noticed meeting unless there is a permitted interaction that allows the council members to discuss the matter privately.”

Kondo found that the reorganization was discussed in a series of one-on-one meetings with more than three council members. Only two council members are allowed to privately discuss council business — and cannot then discuss the same business with any other council member outside of a meeting.

The court ultimately determined that HRS 92-2.5 “Permitted interactions of members” does not permit members of the Honolulu City Council to engage in serial communications regarding matters of council business.

The court ruled in favor of the plaintiffs, a group of Hawaii nonprofits and journalism societies, but it did not appear to provide any remedy. While the court is authorized to compel a public body to comply with the Sunshine Law, to prevent a public body from violating the law in the future or to determine whether the law applies — it did not force the Honolulu City Council to reorganize.

An opinion by Judge Daniel R. Foley of the state Intermediate Court of Appeals agreed with the circuit court’s decision. But, Foley wrote, an “authoritative determination of this issue for future guidance of council members is highly desirable and consistent with the strong public policy of protecting the public’s right to know.”

Foley continued: “Based on the council’s stated position on serial communications, it is likely that the conduct here will reoccur and this issue will arise again.”

He said that the plaintiffs believed that future serial one-on-one communications among council members regarding council business was “not only capable of occurring again, but likely to occur again.

“Because these communications are not open to the public, they may very well evade review,” he wrote.

The full opinion on the 2006 case can be found at oaoa.hawaii.gov/jud/opinions/ica/2007/ica27996.htm.

• Chris Sugidono can be reached at csugidono@mauinews.com.

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