State Office of Information Practices leaders say the agency has no authority to determine whether a resolution giving the Kaua‘i County Council power to set up procedures to investigate county departments is valid or not.
That decision is better left up to County Attorney Lani Nakazawa, OIP leader Leslie Kondo reported in a March 15 letter to Council Chair Kaipo Asing. That determination is beyond the scope of responsibility of the OIP, Kondo added.
Kondo offered his comments in response to concerns raised by Dr. Ray Chuan, a government watchdog. Chuan said it was his belief the entire resolution did not conform with the state Sunshine law.
In an interview with The Garden Island on the letter, Kondo also noted that, in general, testimony given at any meeting the council holds is governed by the state Sunshine law.
But the law doesn’t apply when “compelled responses” or comments are given under oath to an investigative committee of the council, Kondo said.
If that opinion holds true, the consequences could be dire for residents who would be called to testify under oath, according to Chuan. If they lied under oath, they could be sent to jail, he contends.
The opinions by the OIP stem from an ongoing battle between government watchdogs and county officials over the council resolution.
The resolution sets up procedures for the council or its investigative committee to investigate county departments.
Government watchdogs say the resolution gives the council too much power, while county officials said the investigative power is authorized by the Kaua‘i County Charter.
Officials also said the subpoena powers of the council would require accountability from people who give comments under oath in the investigation of county departments.
In the March 15 letter to Asing in response to an earlier letter, Kondo restated the state Sunshine law requires that any public member wanting to testify at a council meeting be allowed to do so without the requirement the testimony be taken under oath.
“It, however, was not meant, and should not be construed, to restrict or otherwise prohibit the council from compelling witnesses to appear and to answer questions under oath,” he said.
At such investigative meetings, people have the right to speak up, even those not subpoenaed by the government, Kondo told The Garden Island.
“They have the right to testify, and can’t be compelled (to give testimony or comments to the council) under oath,” Kondo said.
Kondo also said although a section of the council resolution uses the word “testimony,” the comments taken under oath are different, are not considered testimony and, therefore, are not “contemplated by the Sunshine law.” But Chuan said that OIP attorney, Wintehn K.T. Park, took an opposing position in a March 3 letter to Asing. Park noted that testimony the council investigative committee would take under oath would be in violation of the state Sunshine law.
From his perspective, Chuan said OIP leaders are flip-flopping on the issue.
In the March 3 letter, the OIP leaders are saying the council investigating committee would be in violation of the state Sunshine law if it took comments or testimony during courtlike hearings, Chuan said.
“But in the March 15 letter, Kondo is saying compelled testimony is not testimony, and, as a result, the council can’t be found in violation of the state Sunshine law,” Chuan said.
Chuan said Asing, as head of the investigative committee of the council, could call such a meeting, and declare “testimony that is given wouldn’t be testimony.” In such a scenario, any person who is subpoenaed and who is deemed to have lied could be facing criminal prosecution, Chuan said.
In the other scenario, where “testimony” is given, “a person wouldn’t even have to appear before the council,” Chuan said.
Asing declined to elaborate, but said he would let the latest OIP decision “speak on the matter.”
Chuan said the contrasting viewpoints between the two letters by OIP officials are startling. “I don’t see any way to reconcile the two contrasting statements,” said Chuan, who said he plans to address the matter in future correspondence with Kondo.
Lester Chang, staff writer, 245-3681 (ext. 225) or lchang@pulitzer.net.
