Note: This article reflects corrections made to a prior version. Please see end for details.
The North Shore Neighborhood Board will revisit a windmill resolution and a presentation on Turtle Bay Resort’s expansion plans after announcing last month that member emails discussed these topics in violation of state Sunshine Law, which requires government meetings be held openly.
At issue are emails among board members containing remarks on upcoming agenda items and an agenda request made available to and signed by only certain members of the board outside of a public meeting. A decision to delay action on the involved agenda items prompted anger and debate.
Citing a letter from the Neighborhood Commission Office to the board, Chair Michael Lyons announced at the start of January’s regular meeting that, due to concerns of Sunshine Law noncompliance related to member emails commenting on two of that evening’s agenda items, he would not allow board discussion or action on the matters that night. The items, a resolution on future area wind projects and a presentation by Turtle Bay on its proposed development, are slated for the next regular meeting at 7 p.m. Tuesday in Haleiwa.
Despite the disclosure of potential illegal activity, several board members and guests at January’s meeting directed frustration and bewilderment at the outright tabling of the scheduled topics, which involve two of the community’s most controversial and far-reaching issues, with one guest calling his attendance “a waste of gas.” Lyons insisted that the deferral was necessary per the NCO’s guidance, emphasizing the members’ duty to uphold the law and the severity of infractions. The meeting’s minutes are available online at the board’s NCO page.
NCO: Board emails “raised a flag”
According to records provided by the NCO, board member Antya Miller, who represents the Pupukea/Sunset area and will offer up Tuesday’s windmill resolution, sent emails Jan. 13th to Lyons and nine other members requesting that three proposals concerning wind-energy projects and Turtle Bay’s planned growth be added to the agenda for Jan. 22nd’s regular meeting.
In the emails, Miller comments on the community impacts of First Wind’s Kawailoa Windfarm and Turtle Bay expansion. Bryan Mick of the NCO, which provides guidance to the neighborhood boards on Sunshine Law and other subjects, said that the comments “raised a flag” for him.
“I was worried that while that may or may not have constituted a discussion, I could envision someone responding to her to expand or rebut her comment and then that clearly would be one,” said Mick.
Hawaii’s Sunshine Law, which aims to protect people’s right to know about government processes, generally prohibits multiple members of public boards from discussing or making decisions on official business outside of a meeting or without proper notice. The law particularly restricts private discussions by groups of members making up a quorum or more (or having enough members to pass a vote). In this case, a simple majority — eight of the North Shore Neighborhood Board’s fifteen members — constitutes a quorum. Eleven members were included in the emails.
Chair: Signed motion is “total violation”
Lyons said that after receiving the emails, he contacted the NCO right away for guidance because of concern about Sunshine Law offenses.
Four days after Miller’s emails, the NCO addressed the matter in an email to the chair, acknowledging “some improper discussion may have occurred” and recommending the board disclose the “inadvertent discussions” at the following meeting. In addition, the office advised postponing action on the involved agenda items, explaining that additional time would allow for published minutes reflecting the disclosure and public testimony prior to action.
Miller’s emails also reference a written motion signed by two-thirds of the board’s members requesting that a resolution concerning windmills be placed on the next meeting’s agenda. The resolution, based on board records reviewed for this article, outlines opposition to future windmill projects on the North Shore. A request for a copy of the resolution is pending with the NCO.
Lyons says the motion represents “a total violation” of Sunshine Law, which mostly prohibits members from privately committing votes to board matters. He says it was likely signed just after — but not during — the board’s regular meeting in November.
The fact that the agenda request was presented to only some board members, but not others — and could have prompted discussion about an upcoming agenda item among those members outside a public meeting — also presents potential legal gray areas.
Mick says he “didn’t even consider the resolution,” which was neither mentioned in the NCO’s guidance to the board nor at the last meeting, as a potential breach of Sunshine Law.
Sunshine Law administration
While the Neighborhood Commission Office provides general guidance on Sunshine Law to neighborhood boards, the state’s Office of Information Practices officially administers the statute, though Mick of the NCO says the “OIP prefers we try and solve any board issues within the [neighborhood board] system as they have limited staff resources.”
Unlike the NCO, the OIP investigates and issues findings in response to information it receives about board Sunshine violations through an administrative appeals process. Anyone may submit a written appeal asking it to rule whether a board breached the law.
Mick says his office did not report to the OIP about the recent emails shared among North Shore Neighborhood Board members, noting that the NCO usually forwards information to the OIP if “we think there is an intentional violation.”
According to OIP staff attorney Jennifer Brooks, “The NCO is not obligated to inform OIP of every complaint it receives.” No appeals or complaints regarding the North Shore Neighborhood Board have been filed with the OIP in the past six months, she says.
Sunshine issues yield different reactions
Lyons, who has been the North Shore Neighborhood Board chair for nine years and is a retired police officer, feels that the seriousness of neighborhood board Sunshine Law violations is being mitigated.
“This is not just protocol,” Lyons says. “This is the law.”
At last month’s meeting, some board members voiced disagreement with the decision to defer the windmill and Turtle Bay agenda items, questioning Lyons’ interpretation of the NCO letter. Lyons stressed the board’s need to err cautiously on the side of compliance with Sunshine Law, warning that violations risked litigation and criminal penalties.
He feels he’s been placed in a tough spot between the law and the board, with some members scapegoating him for enforcing the rules, he says.
“What the board needs to be aware of is that we are representatives of the community, and the community expects us to do what’s lawful,” Lyons says. “We take an oath to do that.”
Though neighborhood board members are volunteers, they are subject to the Sunshine Law and are required to receive training on it (an hour-long class, according to Mick). Resources on the law are available at the IOP’s website.
Lyons says neighborhood boards, despite having no acting authority, play an important role as advisory bodies, whose positions legislators and businesses consider when making decisions. Because of this influence, he argues, the board’s compliance with Sunshine Law should not be discounted.
From: Antya Miller
To: Mike Lyons
Cc: Bill Quinlan; Blake McElheny; Bob Leinau; Carol Philips; Kathleen Pahinui; Leif Andersen; Moana Bjure; Thomas Shirai; Warren Scoville
Sent: Sunday, January 13, 2013 2:31 PM
Subject: Windmills Resolution on Agenda and TBR SEIS
I am following up on our conversation in December regarding placing the windmill issue on the agenda. As I stated to you, this has nothing to do with First Wind and will deal with windmills in general. I gave you a written motion signed by 2/3 of the Board members at the last (December) meeting, so I trust it will be on the agenda.
Second, regarding the Turtle Bay Resort Supplemental DEIS, it states that the NS Neighborhood Board was notified, yet they have never come before the NSNB. I feel strongly that this situation should be rectified, as this project will probably have the most impact of any project on the North Shore in the foreseeable future. The draft says on Page 8-4, “Following is a list of all parties consulted during the TBR Community Outreach Program:” and then it lists: “North Shore City Neighborhood Board, District #27.” This misinformation should be corrected as a comment to the DSEIS with a letter before the deadline for comments on January 18th from you, our Board Chair and spokesman, stating that they never consulted our Board. This is a formal request for you to do so.
Third, their traffic study shows results for Haleiwa, Laniakea, etc. and interviewed stakeholders in both the NSNB #27 and Koolauloa NB #28. This project will impact the North Shore and therefore, I request that Replay be put on the agenda to provide a presentation to our Board (and public) even if it is past the comment period. Our board and community need to have an opportunity, through the legally constituted, representative body, us, to be informed and take a position on this issue (if we want to) which can still be sent to the Mayor, our Councilman, DPP, etc. I do not want a repeat of the First Wind project where the majority of people felt they were not properly represented by us regarding that project. This is a formal request for you to put Replay and the TBR Expansion on our agenda and/or have a special meeting for that purpose.
Thank you for your consideration, Mike.
P.S. I only copied those Board members for whom I have email addresses.
From: Mick, Bryan
Sent: Thursday, January 17, 2013 4:00 PM
To: Mike Lyons
Subject: Suggestion on agenda requests
As we discussed before, I think some improper discussion may have occurred concerning two issues that are on the upcoming agendas as requests. My recommendation is before you discuss and take action on the requests; you disclose that some inadvertent discussion took place among members outside of a meeting. You can then act on the request.
If the board accepts the requests, you would the have the topic(s) on the Feb agenda for action. The public would be able to not only submit testimony on the topic but on the inadvertent violations. Having the month in between the disclosure and any action would be key as the minutes will reflect the disclosure and be published in advance of the Feb meeting.
Bryan K Mick
Neighborhood Commission Office
Attached: 2013-01 Letter to NS NB (Sunshine).pdf (53K) — Click to view
Correction: An earlier version of this article stated that the anti-windmill resolution was reportedly signed by two-thirds of the board; however, a motion to include the resolution as an upcoming agenda item was instead reportedly signed. North Shore Informer regrets the error and is committed to accuracy. If you see an error or omission, please do not hesitate to contact us. Mahalo for your help!
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