Sunshine at Keahole? Not in the NELHA Boardroom

posted in: August 2006 | 0

Why did the Natural Energy of Hawai`i Laboratory Authority enter into a contract with HELCO that has proved to be so disadvantageous?

The answer, or at least a clue or two, probably lies in minutes of executive sessions the board held from August to November 2003, when contract terms appear to have been discussed. Now that the contract has been signed, any reason for withholding the minutes – such as frustration of a government function, or predecisional deliberations – might be presumed to be moot and, as such, the minutes of the closed sessions could now be made public, under the provisions of the Hawai`i Uniform Information Practices Act.

In June, Environment Hawai`i asked to review those minutes. On July 5, Ron Baird, NELHA’s chief executive officer, responded. “Unfortunately, we have to inform you that NELHA does not have those documents on file,” he wrote.

The Office of Information Practices has now opened an investigation into the missing minutes, at the request of Environment Hawai`i. The inquiry is not OIP’s first into the agency.
On three occasions the OIP has issued opinions finding that the NELHA board of directors violated Hawai`i’s open-meetings law.

The first rap on the knuckles resulted from a complaint from [i]Environment Hawai`i[/i] in 2001 that the board did not announce in public the reason for going into executive session. Three years later the OIP agreed that this constituted a violation: “A board must announce its reason for holding an executive session when voting to go into executive session and cannot deliberate during the session on matters not directly related to that announced reason.” However, the OIP determined that the violation was not intentional.

A second complaint was lodged in 2005 by the Keahole Point Association, which was concerned that the board routinely violated the Sunshine Law when its Finance Investigative Committee met without public notice.

Again the OIP found the NELHA board violated the Sunshine Law. “The Committee was originally formed as an investigative task force … to investigate ‘actual charges to be used to negotiate [land rental] rates with tenants.’ Once the Committee gave its report to the Board on the matter it was originally authorized to investigate, the Committee had no authority to consider other matters outside of a Board meeting, and in the absence of another permitted interaction or other exception, any discussion about Board business between Board members who had been assigned to the Committee should have occurred in a properly noticed meeting of the Board,” the OIP stated (OIP Opinion No. 06-02).

A year and a half after the committee was formed, the OIP determined, “the Committee was still meeting and dealing with matters that appear different from the issue it was originally authorized to investigate… The membership of the Committee also apparently changed … further evidence that the Committee was not acting as an investigative group such as would be permitted by [law].”

In October 2005, Senator Les Ihara Jr. complained to the OIP that NELHA meeting minutes indicated that the board failed to observe the requirement that it announce reasons for entering into executive sessions when the motion for an executive session is made, that the member making and the member seconding the motion be identified, and that the vote on the motion be recorded. Again, the OIP determined that NELHA had failed to conform to the Sunshine Law.

Beyond the specific instances that gave rise to the complaints, the NELHA board appears to have violated both the spirit and the letter of the Sunshine Law on other occasions as well. Most of the instances that Environment Hawai`i found occurred when the board was being advised by former deputy attorney general Russell Tsuji, who is now administrator of the Land Division of the Department of Land and Natural Resources.

Among the meetings where NELHA board members seem to have violated the requirements of state law are those when the HELCO contract was discussed in executive session. On August 19, 2003, after emerging from an executive session for which no reason was given in advance, several reasons for the closed meeting were provided to the public. The HELCO contract was among them. The board proceeded to entertain a motion and vote on a matter relating to HELCO. But the substance of the motion provided the public with no information as to what action was being taken. According to the minutes, “Jay Fidell moved that the Executive Director and staff proceed as determined during the Executive Session. Ray Carr offered a second and the motion was unanimously passed.”

A month later, the board entered into executive session again, but this time the subject was so hush-hush it could not even be disclosed to staff. Minutes of the September 2003 meeting give little hint of what transpired. No reason for closing out the public was given in the motion. No vote of members was recorded. The minutes report that at the request of Ted Liu, director of the Department of Business, Economic Development, and Tourism, NELHA staff was also dismissed.

After an executive session lasting more than an hour and a half, the board reconvened in public and immediately approved a motion to “establish a fact-finding committee to review procurement, contract processing, and contract management practices and report its findings to the board.” (No report was found in any of the minutes of subsequent meetings reviewed by [i]Environment Hawai`i.[/i])

[b]Hidden Records[/b]
Although NELHA has not been able to find minutes of executive sessions held in the second half of 2003, is own files indicate that such minutes were prepared. In November 2003, NELHA senior secretary Diane Minchew sent an email to Tsuji regarding the executive session minutes for the September meeting. “You acknowledged that you would provide those minutes to me… Since I am the board secretary and NELHA maintains the board minutes, executive sessions included, please forward the executive session minutes to me for September…”

Tsuji refused. “Although you did indicate to me that you thought you should hold the September 2003 Executive Meeting minutes… I told you that I did not necessarily agree with you. I told you I needed to further study the various issues as it applies [sic] specifically to the September 2003 Executive Meeting minutes.

“For your information, the September Executive Meeting involved confidential personnel and fiscal matters, as well as confidential legal issues surrounding the Gateway Project and the federal procurement guidelines.

“For your information, the Sunshine Law does not require staff to hold the Executive Meeting minutes. In this particular instance, I don’t believe staff is the appropriate party to hold the Executive Meeting minutes.”

Minchew had also inquired in her email about obtaining the minutes of the executive session held in November. “I haven’t studied the question of who should hold the November 2003 Executive Meeting minutes, and thus do not have an opinion on that question at this time,” Tsuji replied.

If the subject of the September executive session was mysterious, that of the November session must be ranked right up there with Eyes-Only state secrets. The minutes of the public meeting report only this much:

“Richard Henderson moved to go into executive session; Don Thomas seconded the motion. Upon the vote, the motion was unanimously carried.

“The Executive Session is for the purpose of receiving a report of an investigative committee. All non-Board member attendees were excused, except for Priscilla Thompson of DBEDT, who was asked to remain to take Executive Session minutes.

“The Board adjourned to Executive Session at 1:10 p.m.

“The Board reconvened its open meeting [at] 1:43 p.m.

“Jay Fidell moved that the Board proceed in the manner discussed in the Executive Session; Carl Simons seconded the motion. Upon the vote, the motion was unanimously carried.”

— Patricia Tummons

Volume 17, Number 2 August 2006