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Looks like the Office of Information Practices isn't buying the County's story about why it may have run afoul of state Sunshine Law again, and now Corporation Counsel Lincoln Ashida is pleading to stave off possible criminal sanctions for willful violation.

The Council was dinged by OIP in July for a Sunshine Law violation for acting on a matter that was not properly placed on the Council's formal agenda.

Now the issue is the rezoning of land in West Hawaii for the Kona Coffee Estates project, Bill 251, which was passed by the previous Council on Nov. 29,  five days before the scheduled "sine die" meeting of the Council when it “adjourns without appointing a day on which to reappear or assemble again," according to Black's Law Dictionary as quoted by Ashida. Call it a sort of formal changing of the Council guard.

The pre-Dec. 4 developer-dominated Council OK’d the rezoning, but Councilman Bob Jacobson tried to have a motion for reconsideration of Bill 251 approved at the sine die meeting so it could be considered by the new more environmentally minded post-Dec. 4 Council when it convened on Dec. 20. Council rules required that the motion be offered at the next regularly scheduled meeting, which was the sine die meeting on Dec. 4. But to Jacobson’s surprise, a majority of the previous Council, still seated at the time, discussed the reconsideration motion on Dec. 4 and rejected it then and there.

Jacobson and Ashida were both well aware of the July OIP opinion and that the OIP had warned Ashida before the Dec. 4 meeting that moving the resolution for reconsideration without it being “agendized” could be just as illegal. Ashida had said so in a letter to Council members on Nov. 30 (I’m sorry I can’t provide links to these letters since I just received them in PDF form).

Nevertheless Ashida also crafted arguments in favor of the Council defying the preliminary OIP opinion.

Despite the implications of not putting the item clearly on the Dec. 4 agenda, instead of including it under "Other Business" with no specifics, Ashida reasoned that it could be done because there were 1) no established OIP opinions "specifically prohibited the hearing of such nonsubstantive motions for reconsideration,” 2) The Council had always done it that way, 3) a 1997 opinion of former Corp Counsel Richard Wurdeman backed up point No. 2, and 4) "time was of the essence" and Dec. 4 was "the only logical alternative to afford Council members an opportunity to reconsider their vote."

But by the end of the five-page Nov. 30 letter, Ashida abandoned his arguments counter to the OIP and cautiously advised Council members to convene an emergency meeting under the provisions of Hawaii Revised Statute 92-8 to bring the motion for reconsideration instead of doing it at the Dec. 4 meeting. But an emergency meeting would have required certain legally problematic findings and a two-thirds majority vote to occur, which weren't likely.

Curiously, Ashida’s Nov. 30 recommendation was couched in terms of a motion to consider an animal control ordinance and made no mention of Bill 251."This is not to suggest that a reconsideration should occur," the letter said of the animal control ordinance. “The purpose of this letter is to simply set forth our opinion concerning the reconsideration of this bill, and to provide guidance on proper notice requirements." Mayor Harry Kim vetoed the animal bill anyway.

But Kim, for some reason, didn't veto the Kona Coffee Estates bill despite written pleas from Council Chairman Pete Hoffmann and Councilwoman Brenda Ford.

Now in previously "confidential attorney-client" documents released by Ashida Monday in response to the reporting by this blog, Ashida concluded on Dec. 18 what he'd already known on Nov. 30, that the OIP is expected to rule that the Council acted illegally on Dec. 4 when it made and considered the motion for reconsideration.

Jacobson, however, in an undated letter requesting an opinion from Kondo, said that he believed he was on safe legal ground because he had discussed it with deputy Corporation Counsel Ivan Torigoe at the Dec. 4 meeting, and because Ashida had told him earlier that his planned action was legal.

Now assuming the usual OIP sanction for such an offense is to void whatever actions were taken, the ruling would have little effect except to blunt Jacobson's efforts to have Bill 251 reconsidered by the new Council. That is, unless Kondo determines that Jacobson’s and the Council’s actions were “willful” violations based on their knowledge of the July opinion, because that could result in misdemeanor criminal charges.

Kondo pointed out that even under the "Other Business" portion of the written agenda the Council at least could have provided a brief description of the proposed action. And based on the earlier ruling perhaps a little more caution should have been exercised by the Ashida and the Council, especially with all the doubt and uncertainty about the law expressed in the letter Ashida sent to the Council on Nov. 30.

The case highlights a long-standing gripe of mine which is that the tax-paid Corporation Counsel acts as the attorney for county officials and works in their interest, not the public or taxpayers' interests. Not just Ashida but every one I can remember. If the public interest were in play, Ashida might have said prior to the Dec. 4 meeting something like this: "Look, we got spanked on this before and the OIP is already looking sideways at this one. I don't recommend you do it."

After all, it's a political pickle that Ashida is trying to fix for Jacobson. It's the losing side of a vote trying to finagle a way to get another vote. Jacobson had a clever idea but couldn't pull it off because the time was too short between the regularly scheduled meetings -- five days instead of the required six for putting items on the agenda. Council Rule No. 6 says "A motion for reconsideration and any subsequent action thereon shall only be considered in accordance with these rules and any public notice requirements.”

However Ashida argued on Dec. 18 that, "reconsideration decisions need not be agendized since they are non-substantive and not 'final actions,"  and he wrote that giving notice of reconsiderations under "Other Business" on an agenda is enough for "(a)nyone following bills of concern (to) find that reconsiderations would be possible regarding actions of the prior meeting."

But Kondo told Ashida in a preliminary review of the case on Dec. 13, that, "even the making of the motion for reconsideration on Dec. 4 was not permissible under the Sunshine Law," which was this blog’s independent conclusion on the same day.

Ashida also told the Council in the Nov. 30 letter that it would be on very shaky ground in terms of the Sunshine Law if it went ahead with any reconsideration at the Dec. 4 meeting. OIP opinions are presumed to be legally valid under the law, so Council members shouldn't expect much help in a legal challenge, he wrote. "We cannot conclude under the facts and circumstances of the current case that a court would find Mr. Kondo's position invalid or unreasonable."

With all these caveats in the then-confidential Nov.30 letter, it is still incredible to me that Torigoe would give an unqualified public OK for Jacobson to take the action he did. But Ashida argues again in a letter to Kondo on Dec. 18 that Jacobson's actions were valid and that Jacobson “believed in good faith that the simple making (but not the deciding) of motions to reconsider without the matter being agendized was appropriate."

"Thus we respectfully seek OIP's conclusion that any action taken by the Council or its members on Dec. 4 were within the realm of reasonable acts, and did not constitute a willful disregard of the Sunshine Law,” Ashida wrote. He's hoping. Because by justifying everything Jacobson and the Council did without recommending they do it, there  may have been just enough confusion generated to land some Council members in court and get them kicked off the Council.