As part of their complaint filed against Kauai County last Friday, the biotech seed companies are seeking to void the County Council's selection of Mason Chock to fill a vacancy on that panel.
If they are successful in voiding Chock's appointment, it would also invalidate the Council's vote to override Mayor Bernard Carvalho's veto of Bill 2419. The Council, recognizing it did not have the votes for an override, recessed and appointed Chock to complete the term of Nadine Nakamura, who resigned from the Council to work as the mayor's top aide. Chock went on to support the override.
The appointment is contested in the last of the plaintiffs' 13 claims against the county. It describes how the Council received numerous applications for the position, but kept the names secret. The Council met in closed executive session to winnow the list down to just two: Chock and KipuKai Kualii, who finished eighth in the last election.
By identifying only Kualii and Chock, “the Council deprived the public of any opportunity to know the identity of everyone on the list of applicants and, thus, the identity of the people the councilmembers chose not to put on the 'short list' for public discussion,” the complaint states. “As a result, the public was deprived of any opportunity to know whether, and to what extent, political affiliation, political favoritism, personal bias, campaign contributions (or the lack thereof), education, employment or other factors may have influenced the selection process. The applicants had no privacy interest in maintaining anonymity, or if they did, their privacy interests were outweighed by the public interest in knowing the credential and experience of the applicants who the council passed over in the members' rush to choose a replacement councilmember who would support overriding the Mayor's veto of Bill 2491.”
The complaint contends the state "Sunshine Law" (HRS 92-4 & 5) does not authorize the Council to winnow the list of applicants in secret. Under HRS 92-11, the Council's action is voidable upon proof of a violation, in any action brought within 90 days of the challenged meeting.
“This action was filed within that time period; the Council's appointment of the replacement member must be voided,” the complaint states. “All actions taken in reliance on the vote of the improperly selected replacement member — including but not limited to the override of Mayor Carvalho's veto of Bill 2491 — is likewise void.”
I went back into the Council minutes to look at how the panel chose a replacement for Derek Kawakami, who resigned in 2011 after being appointed to finish out the House term of Mina Morita, who had been named chair of the Public Utilities Commission.
In that case, the Council “circulated internally” a list of people interested in serving, according to the April 12, 2011 minutes. The list was never made public. Since the county charter does not specify a process for picking a new member, Council Chair Jay Furfaro proposed one that his colleagues approved:
First of all, nominations from the council will be taken one name at a time. All nominations must be seconded. After a nomination and a second, I will take public testimony for those who wish to speak on the person that was nominated at that time. After public testimony is taken, the council will be called back to order and we, in fact, will discuss that nomination. After the council discussion, a roll call vote will be taken on that nomination. If a nomination receives four (4) votes, it will be considered that a selection and consideration had been made. If four (4) votes are not received, the council will then move to a second nomination from its members and then we would repeat that sequence.
Kualii, who had finished eighth in the previous election, was the first to be nominated and was unanimously approved.
But when it came to filling Nakamura's seat, the Council took a different approach, which Furfaro said he had cleared through the Office of Information Practices. “Again, by OIP, we do not disclose who the applicants are of the eighteen (18) at this point,” Furfaro told the Council before going into executive session on Nov. 15, 2013. “We are only required to disclose those that are nominated.”
Prior to that meeting, Councilman Gary Hooser had been polling applicants for their stand on the bill he sponsored.
The panel met in executive session and winnowed down the list of applicants to Kualii and Chock. Both men were nominated and voted on in open session, with Chock winning in a 4-2 vote. Furfaro, in casting the tie-breaking vote for Chock, promised to help Kualii in his next election.
Kualii's 2011 appointment was also challenged as a violation of the “Sunshine Law,” though on different grounds. However, according to a Dec. 30, 2011 OIP memo:
Because OIP was not presented with any specific facts indicating that councilmembers discussed the successor selection before the Council’s meeting, and because OIP believed there is a plausible alternative explanation for the Council’s apparent assumption that Mr. Kualii was likely to be selected, OIP could not conclude that the Council’s selection of Mr. Kualii was the result of improper discussions, including possible serial one-on-one communications.
Though one observer felt the 13th claim was the weakest in the biotech companies' complaint, a top Hawaii attorney disagreed.
“Federal judges don't like things that on the surface appear to be rubes making up their own rules to subvert legal processes,” the attorney said. “It strikes them as a little too 'Hazzard County.' Or in this case, Dukes of Hoozer.”
Perhaps the Charter Commission should get to work on an amendment that specifies a process for filling Council vacancies instead of letting the Council continue to fly by the seat of its pants.