Hawaii Tribune Giving Out IP Address of Commenters on Their Website – Attorney Trying to Make Reporter Turn Over Notes

In an article written today by John Burnett of the Hawaii Tribune entitled, “Subpoena seeks names of people who wrote online,” Hilo Attorney Ted Hong has requested personal information regarding folks that commented on an article written on January 30th, 2012.

Click to read article

The newspaper complied with the demand and gave away the information of their readers, which they can legally do.

…Hilo attorney Ted Hong, who’s representing Elections Office Administrator Pat Nakamoto in her defamation lawsuit against former County Council Chairman Dominic Yagong and former County Clerk Jamae Kawauchi, filed the subpoena on Jan. 4 in 3rd Circuit Court. In it, he’s seeking the identities of individuals posting under the user-names “punatic,” “Taxedtodeath,” “punatic8,” “QQ,” “548991” and “rsjm.”

The document seeks “any and all account information, including but not limited to, name, birthdate, mailing address, telephone number(s), Internet protocol address, (and) name of Internet service provider … .” The deadline for providing the information is today.

A legal disclaimer on the Tribune-Herald’s website contains the statement: “IP and email addresses of persons who post are not treated as confidential records and will be disclosed in response to valid legal process.”

“We are complying with the subpoena requests,” said David Bock, Tribune-Herald editor and news director for Stephens Media Hawaii. “We are very protective of our news sources and reporters’ work, but we have no control over what members of the public write in our website’s comments section…”

Unfortunately, Ted Hong is also requesting that one of the paid journalists to turn over her notes in the case regarding this same case involving the fired election workers.

Hawaii has a shield law that protects both bloggers and journalists from turning over their sources.

“Hawaii allows anyone to claim protections under the shield law so long as they meet certain conditions, such as proving they write regular reports of substantial public interest.” (Civil Beat 8/31/12)

Burnett of the Tribune Herald writes:

“…West Hawaii Today also was subpoenaed by Hong, seeking the notes of Stephens Media reporter Nancy Cook Lauer regarding stories she wrote about the firing of Nakamoto and three other elections workers, and the flap that ensued.

Bock said Stephens Media is fighting that subpoena, noting that Hawaii has a “shield law” protecting journalists in most cases from having to turn over their notes or the identities of their sources…”

I hope that Nancy Cook Lauer and the folks at West Hawaii Today stick to their guns and do not allow their reporters notes to be turned over to investigators.  It would be a huge step back in journalism and folks would no longer feel comfortable talking to reporters about things they know about if they might get in trouble for it in the future.

I’ve noticed that Tiffany Edwards Hunt of the Big Island Chronicle and David Corrigan of Big Island Video News have been pretty quiet and not blogging as much of late.  I wonder if they also got served with these subpoenas?

End of Free Online News From Big Island’s Main Stephens Media Newspapers

The other day I was browsing the Hawaii Tribune Herald online and I noticed this popup that kept popping up and I kept closing the window and for some reason it would take me back to the front page of the paper.  I didn’t really think anything of it at the time… but I just tried to access the paper online again today and got the same pop-up.

I took a closer look at the pop up and it read the following:

I’ve now looked at the West Hawaii Today site and they are also blocking readers from reading the whole articles.  It looks like folks are allowed to read 10 pages or something each month before things start getting funny on the sites.

I've used 7 page of 30!

The funny thing is… is they are not only blocking their own written articles… They are blocking articles delivered to them by the Associated Press.

I just checked out Big Island Weekly and it looks like they are still providing free online news… but who knows how long that will last?

One Year Later – Big Island Journalist Releases New Footage of Hawaii Tsunami… RUN FOR YOUR LIFE!

West Hawaii Today journalist Chelsea Jensen posted this video entitled “One Year Later” of what happened here in Hawaii after the Earthquake and Tsunami that devastated Japan last year.

Watch until the very end and you can see that Chelsea herself almost got swept out to sea and did suffer damages (posted with permission)

Kailua-Kona Fourth of July Parade and Fireworks Schedule

Media Release:

The West Hawai‘i community is invited to enjoy both a parade and fireworks this Monday, July 4. The Kailua-Kona Independence Day Parade will begin at 5:30 p.m.

The parade begins at the Kona Pool next to Kekuaokalani Gym on Kuakini Highway near Old Airport. It will proceed south on Kuakini Highway, past West Hawaii Today, to Palani Road, to Ali‘I Drive, and then south on Ali‘i to Walua Road just past Coconut Grove Marketplace. There will be about 69 festive entries. The community is invited to come dressed in their festive Independence Day outfits.

The theme this year is Celebrate Freedom. There will be multiple color guards to celebrate the birthday of our country. Several military organizations will be represented, including Pohakuloa Training Area, Hawai‘i National Guard, Big Island Military Vehicle Group, and Camp Tarawa Detachment #1255. The entries will feature music, skateboarders, roller derby skaters, dogs, and lots of festive holiday creativity.

The Grand Marshal will be five members of our Hawai‘i County Police and Fire Departments who have served our country in the military. They include Fire Fighter Recruit Dominic Marzi, Fire Fighter Paul Kekela Jr.,and Volunteer Fire Equipment Operator Clinton Haina. From Hawai‘i Police Department, the Grand Marshals will be Officers Kupono Mata and Thomas Koyanagi.

Announcing stations for the parade will be at West Hawaii Today, Remixx Lounge at King Kamehameha Mall, King Kamehameha’s Kona Beach Hotel, Tantes Restaurant, Boston Basils, Pancho & Leftys Cantina,Kimos/Uncle Billy’s, Waterfront Row, Island Lava Java, and Humpys at Coconut Grove.

Before the parade, there will be magic courtesy of The Great Arneleo at Kimos/Uncle Billy’s and music at Waterfront Row. The announcers at Pancho & Leftys will have an Independence Day Trivia contest (no prizes, just fun), and at Humpys, the two parade announcers dressed as Uncle Sam will provide frolic, fun, and trivia.

Many generous sponsors including the County of Hawai‘i, have contributed to provide a community fireworks display at 8:30 p.m.. The gala fireworks display will be from a barge in Kailua Bay, with pyrotechnics provided from a barge in the bay by fireworks production company Hawaii Explosives & Pyrotechnics, Inc. LAVA 105.3 fm radio will broadcast patriotic music before and during the display.

There are more than 50 generous community sponsors that have made the fireworks and parade possible. In addition to the two major sponsors, Hawai‘i County and Kona Commons, other significant donations have come from Queen Liliuokalani Trust, Coconut Grove Marketplace, Holualoa Management Corporation, Lanihau Properties, Inc., Royal Kona Resort, Rotary Club of Kona Community Foundation, Royal Hawaiian Movers, and Fish Hopper.

Silent Sunday and the Death of the Advertiser… Big Island Newspapers Don’t Have Blogs!

I’ve been kind of waiting for something big to come out of the Honolulu Advertiser today and I really guess it is just gonna kind of  fade off into the dust after more then a century of reporting news here in Hawaii.

Some folks are saying that the dynamics of the the whole digital era is what really killed off the Honolulu Advertiser… I’ve been saying that for the last 6-7 years now.

Big Island papers will probably consolidate soon.  I’ve already started thinking of names.  “Hawaii Tribune Today” was the newspaper name that I think would be most feasible combining Hawaii Tribune Herald with West Hawaii Today.

The funny thing… I don’t think there would be that many lay-offs as both papers seem to use articles at will from the pool of Stephens Media writers here on the island at their expense.

It kind of seems like… hey… “if there is nothing to print… let’s print something from the other side of the island… no one will notice the difference any ways.”

I mean they do it anyways and all they do is change their headlines.

For example today’s Hawaii Tribune-Herald had the following: What Happened to the Rain? and then the West Hawaii Today had the following: Isle Drought:  No End in Sight.  Exact same author, exact same article, just a different headline.

I also find it funny that these two newspapers are using the term “Blog” to attract readers to something on their papers and what I think they are simply doing is leading readers to viewer comments by cashing in on a key phrase, as the word “Blog” is hot right now.

When will either paper realize they don’t have any blogs on their sites?  They have comments on their sites to articles that were written!

Or maybe they simply don’t know the difference… pfft! :roll:

A Big Island Newspaper Finally Getting It?

Wow a Big Island newspaper beginning to understand social media?

It looks like the West Hawaii Today is finally on Twitter.

I’m their 18th follower… I wonder if they will actually get Twitter and realize they need to follow people back otherwise it’s pretty useless and they are only sending stuff and not receiving stuff that could interest their newspaper readers.

They also have a Facebook page, which I just became a fan of.

Are we going to start getting local news faster via Twitter and Facebook then those damn paper rags?

I wonder if the Hawaii Tribune will also get with the times?

Lincoln Ashida: “What really happened with the West Hawai‘i Today’s lawsuit against the Hawai‘i County Council”

From the Desk of Lincoln Ashida:

On October 13, 2009 the West Hawai‘i Today and County entered into a settlement agreement disposing of all allegations and claims made by the newspaper against the Hawai‘i County Council.  The WHT earlier sued the Council, claiming the Council had violated Hawai‘i’s “Sunshine Law” since more than four members of the Council discussed the possible reorganization of leadership in June of 2009 outside of an officially noticed meeting.  The WHT also claimed more than two Council members participated in an April 2009 trip to Oahu to lobby State legislators; the WHT alleges that during this trip “official board business” was discussed and agreements were made to submit and pass legislation once the councilors returned to the Big Island.

In my previous service to our community as a prosecutor, I was involved in many cases followed and reported by our local media.  As previously expressed in past website messages, no doubt it is difficult for reporters (through no fault of their own) with limited legal background and limited column space to sometimes accurately and completely report on legal events.  Public misinformation is further proliferated through thoughtless and inaccurate public commentary found throughout the internet.  We noted at least one blogger was someone who held themselves out as an attorney and was offering “commentary.”  As all competent trial attorneys know, actual knowledge of the crucial details of a case is necessary in order for credible and accurate commentary to be offered.  If not, misrepresentations and misinformation grow legs and begin to walk around as facts.  This case was no different.

The original allegation

On June 18, 2009, the attorney for the West Hawai‘i Today filed a formal complaint with the State of Hawai‘i Office of Information Practices, alleging that the Sunshine Law had been violated.  In its “statement of facts,” the newspaper stated as follows:

During the discussions, several council members referred to a meeting between Council Chair J Yoshimoto, County Clerk Kenneth Goodenow and Pete Hoffmann, in which Yoshimoto apparently told Hoffmann he “had five votes to make the measures pass” even without Hoffmann’s support.  Hoffmann provided an account of this conversation.  That conversation took place Wednesday, June 10.

This complaint to OIP was premised on the erroneous belief there was discussion among the “five majority members.”  The following heated exchange occurred at the June 16, 2009 meeting of the Council:

MS. FORD:    Excuse me, am I going to be allowed to comment without interruption?

MR. GOODENOW:   The Rules say that you should speak on the merits or demerits of the bill –

MS. FORD:    I am.

MR. GOODENOW:   I think we are straying from –

MS. FORD:    I don’t think we are because we have a Sunshine Law violation here and we have some untruths being spoken to different Council Members in order to round up the votes. And now I find out that five of you have agreed to these resolutions before we even got our boards or, at least, before I got my board.

The allegation Mr. Yoshimoto spoke with at least four other Council members was further proliferated in WHT’s court documents.  This was stated and repeated in court documents filed on July 10, 2009, July 15, 2009, and July 16, 2009.

The unfortunate injustice is this misinformation was not stopped when it should have been.  As the WHT loaded up to attack the Council Chair for his apparent “admission” he spoke with four other Council members, the County was placed in the position of having to defend individual Council members from threats made by the WHT that they would be seeking a criminal prosecution.  On September 2, 2009, in notifying the County the WHT intended to amend their complaint to include the allegations involving the Oahu trip, their attorney notified me via email as follows:

Based on the newly discovered information I will be making a referral of the matter to the Attorney General and Prosecuting Attorney.  I will copy you on those referrals as soon as they are completed.

Hoffmann NEVER said Yoshimoto spoke with four others

In defending against the WHT’s request for a temporary restraining order, the County submitted to the Court an affidavit from Mr. Yoshimoto stating he did not “tell, suggest, imply, or infer to Mr. Hoffmann that (he) had five votes to pass the subject reorganization resolutions.”  There was some criticism from the public as well as two Council members who at the time questioned why an affidavit from Mr. Hoffmann was not included.  This discussion with the Council was occurring in open session, and it would have been legally and ethically improper for me to respond publicly.

Here is a copy of Mr. Hoffmann’s affidavit.  As you can see, Mr. Hoffmann makes clear Mr. Yoshimoto never said he spoke with any other Council member other than Dennis Onishi and Guy Enriques.  If this statement of “having five votes” was made (either by Mr. Yoshimoto or Mr. Hoffmann), it was a simple recognition that Mr. Yoshimoto did not need to speak with Council Members Donald Ikeda and Emily Nae`ole, as it was likely they would support the proposed reorganization.

Thus the WHT’s case with respect to allegations Mr. Yoshimoto “spoke with four others” had no factual basis.  What was left was their allegation the total number of Council members involved in the discussion (whether for or against the reorganization) exceeded four.  This meant at least one of the “minority members” of the Council would have to be part of the “serial communication” in order for their lawsuit to stick.

After it was revealed what Mr. Hoffmann would say if called to testify, the WHT amended their lawsuit a second time to include the allegations that the “majority members” violated the Sunshine Law while on their trip to the State Legislature.

Why were private attorneys necessary for some Council members?

When the WHT attorney threatened in writing to make a “referral of the matter to the Attorney General and the Prosecuting Attorney,” our office was ethically obliged to consult with another County client, the Office of the Prosecuting Attorney, to determine if they would waive any conflict of interest if we continued to represent individual Council members with respect to issues related to their possible criminal misconduct.  Although the likelihood of a criminal prosecution under these facts was remote at best, we followed our responsibility under the Hawai‘i Rules of Professional Conduct.  After consultation, the Prosecuting Attorney administration refused to waive conflict.  What this meant was the Corporation Counsel would not be allowed to represent individual Council members with respect to their potential criminal liability exposure.

Some will say in hindsight this was a waste of time and money.  The County will be required to pay the legal fees and costs of the private attorneys hired.  However this action was necessitated by threats made by the WHT (it is our understanding such a referral was never made).  The threat was made before the commencement of the evidentiary hearing in Court where the WHT had subpoenaed all nine Council members.  This is why it was necessary to have private counsel on board for individual Council members, and not “wait to see what happens.”  On September 10, 2009, we notified each Council member in writing as to the WHT’s threats and the Prosecuting Attorney’s decision to not waive any conflict of interest.

So was there a Sunshine Law violation prior to the first reorganization attempt?

The WHT claims victory in their paper and boasts of the “landmark ruling” since the Court issued a temporary restraining order.  No doubt this order motivated the Council to undo their reorganization (and provides the basis for the payment of a portion of the WHT attorney fees); the County does not dispute that.  However the simple fact is it was an order of limited duration (this is why it is called “temporary” and why an evidentiary hearing on the preliminary and permanent injunction is required by Court rule).  Further, the order never came into effect so as to “block” any action of the Council, since the Council undid their reorganization prior to the effective date of the order.  The hearing on the preliminary injunction (which would have led to a definitive judicial finding of whether the Council violated the Sunshine Law) was halted because of this settlement.

The WHT initiated settlement negotiations in this case, not the County.  Their initial offer of October 1, 2009 required the County to admit there was a Sunshine Law violation in the June 16 reorganization effort, and pay all attorney fees and costs.  This was rejected by the County on October 9, 2009.

The County’s offer of settlement dated October 9, 2009 required a complete dismissal of all claims with prejudice, and the payment of only a portion of the WHT’s attorney fees.  This was accepted by the WHT on October 12, 2009.

So will we ever know if there was a Sunshine Law violation?  OIP continues their investigation.  It is very possible they may find a Sunshine Law violation occurred, but as we submitted from the inception of this case, any violation was inadvertent.  Then again, they may find no violation, since there is no evidence at any one time more than four members of the Council who discussed the reorganization were either “for” or “against” the measure.  There is a reason their opinion is taking so long.  It is an unsettled area of the law and no OIP or Attorney General legal opinions exist.  It is a “case of first impression” for the Sunshine Law.

In any event, the setting aside of the action taken, or redoing the action (as the Council had done in this case) is the only practical “remedy” found in Hawai‘i’s Sunshine Law.  This was done early on by the Council (before the TRO came into effect); this is the reason the Court granted the County’s motion to dismiss a portion of the WHT lawsuit as moot.  There was no other “pound of flesh” the WHT could extract from the Council majority.

When interviewed by a WHT reporter on October 13, 2009, I asked the County be given a fair chance to express its reaction to the settlement of this lawsuit.  I indicated a balanced playing field was necessary for the public benefit, and expressed my reservations since the recent article on the Brenda Ford lawsuit written by a Hawai‘i Tribune-Herald reporter appeared in the WHT, but with all of my comments eliminated.

What was not reported in the WHT article about the WHT case was our observation this lawsuit revealed this was not an “East Hawai‘i versus West Hawai‘i” or “Majority versus Minority” issue.  In order for a Sunshine Law violation to stick, it was clear members from both East and West Hawai‘i, as well as from the “majority” and “minority” factions of the Council were necessarily involved in discussions.  In a time of public divisiveness this was a very important development.  In my recent observations and discussions with the Council, I find their “on camera” and “in the heat of the meeting” actions somewhat more theater than malice towards one another.  Their non-meeting interaction with one another differs dramatically and is professional and warm.

I was also asked by the WHT reporter what I believed the Council learned from this experience.  I always look for the positive in things; even difficult and trying circumstances present learning opportunities for the future.  Again what was not reported was my observation that the litigation process, although at times difficult for many members, had the product of galvanizing the entire Council.  Whether East or West or majority or minority, the Council understands its successes in the future will be the direct result of their willingness to cordially and professionally interact with one another, whether they agree or disagree on contentious County issues.  This by far is the best development in this case.  A recent WHT editorial talks about “winning” or “losing” the lawsuit.  This bravado is not important for the County.  What is important is the recognition the only party we should fight for is the community we all serve.  To this end this settlement that brings an end to the litigation and serves as the catalyst for healthier Council relations in the future will indeed serve the people.

West Hawaii Today’s Popshot at the FBI Blogs?

I’d like to point out RJ Mendoza’s blog posting this morning “Parasites, Perspective, and Aunty Felicia”

RJ Writes:

…Is there a particular reason why this column is in today’s print version of West Hawaii Today?

Should I be quoting? Ah hell, I’ll quote this piece:

Why? A big reason is what economists call free-riding. Practically anyone can start a Web site and get software that snags fresh online news from those who originate it. Web site owners pluck the freshest, most interesting reports and quickly post condensed rewrites. That costs them little, and they then surround the rewrites with cut-rate ads.

I find this hilarious!  I find it even more hilarious that I actually said that sometime this week… that WHT would be taking a popshot at bloggers in an email I made to someone on the BIPC because of my REED FLICKINGER POST shortly after the BIPC Meeting.

Haters… Go Away!

Recently received an anonymous email:

“Why did you copy and paste Lincoln Ashida’s Blog to your site”

Get a grip… can you make a comment on Mr. Ashida’s site?  I posted the whole thing here so that the community can make comments on what Mr. Ashida said since obviously he won’t let  you make comments there if anyone wants to comment on it.

Do I support his opinions… Get a grip… I reposted something I saw so that others that may not read something important that is going on with our County Council now and people can make comments on it.

Pfft…

Are you an enabler… or are you a controller?

At least I don’t post thing like some folks do on Public Message boards without giving a link to the site.

There is a term for that…  I won’t go into it.

But if someone would realize that it’s not cool to post a message from “The Kohala Blog” on their message board without even giving a link to “The Kohala Blog“…  that’s messed up.

We bloggers strive for readers and it sucks when someone would just steal what you would say … and only say “The Kohala Blog” said this… w/out giving a link to the actual “Kohala Blog“.

The name of a blog often isn’t even what it can be found under.

Control freaks… pfft… give credit where credit is due.

If you don’t have the ability to hyper link… at least give the URL out for your information you are trying to give out.

Pfft… Control:

http://www.punaweb.org/Forum/topic.asp?TOPIC_ID=8947

Sad that not once… has a direct link been given to anything that Margaret Wille has done for our county.

Lincoln Ashida on the West Hawaii Today Lawsuit Against County Council

From the Desk of Lincoln Ashida:

The West Hawai‘i Today’s lawsuit against the Hawai‘i County Council. On July 10, 2009, the West Hawai‘i Today newspaper filed suit against the Hawai‘i County Council and all nine Council members in their official capacity, alleging a violation of Hawai‘i’s “Sunshine Law.”  The lawsuit is based on the Council’s reorganization of some leadership positions at their June 16, 2009 meeting in Kona.  The lawsuit alleges some Council members engaged in a series of “serial communications” that circumvented the State’s Sunshine Law, and had the net effect of allowing the Council members to discuss the reorganization outside of a properly noticed meeting.

The State of Hawai‘i’s Sunshine Law is commonly referred to as the “open meetings law;” it requires all boards under its jurisdiction to transact official business at a properly noticed meeting.  The law prohibits informal meetings to discuss official business between more than two board members.

One exception to the general “two member” rule is the discussion of the board’s leadership.  For nine-member boards like our Council, the law permits up to four members to privately discuss leadership “without limitation or subsequent reporting.”  This means unlike the permitted “two member” rule, the Sunshine Law allows up to four Council members to discuss how they will vote on a particular measure concerning the future leadership of their board.

The West Hawai‘i Today’s lawsuit seeks three basic things:

1. A declaration from the Court that there was a Sunshine Law violation;
2. A declaration from the Court that the reorganization was invalid; and
3. Reasonable attorney’s fees and costs.

Our office also confirmed with the West Hawai‘i Today’s attorney, Robert Kim, Esq., that the newspaper also seeks to have all official actions taken by the reorganized Council and committees declared invalid.  We thank Mr. Kim for his candor and providing the Council a “heads up” on the remedies their lawsuit seeks.  In my many dealings with Mr. Kim, he has consistently demonstrated he is the finest example of a lawyer gentleman and his civility is much appreciated.

At the request of the Office of Information Practices (OIP) and with the consent of the Hawai‘i County Council, the Corporation Counsel responded to three complaints filed with OIP concerning the reorganization of the leadership of the Council and its standing committees.  You may read the full text of the County’s email response here.  At the request of OIP, since time was of the essence, they sought a response from the Council as soon as possible.

Inadvertent violations of the Sunshine Law

Unfortunately, inadvertent violations of the Sunshine Law by board members when discussing leadership changes is common.  OIP’s recent legal opinion concerning “serial communications” has dramatically (and properly) limited the extent that board members may discuss board business.  Prior to the “serial communications” opinion, two board members would routinely discuss board business.  Once that discussion was completed, they would move on to discuss the same board business with another board member, and so on.  OIP correctly opined that such “serial communications” violated the intent of the Sunshine Law by essentially allowing more than two board members to discuss board business.

However you can see how the discussion of leadership changes (where up to four members may participate) may be problematic for board members.  Since they are not limited to discussing the matter with just two members, unless they know who the other board member discussed the matter with, inadvertent violations of the Sunshine Law may frequently occur.

So where did that leave our Council on June 16?  Instead of retreating into a recess or attempting to “defer” the matter to another day, the Council moved forward to determine what occurred and to seek a possible remedy or cure.  The Sunshine Law provides no guidance with respect to “what to do” when possible violations have occurred.  In prior discussions with the former leadership of OIP, the remedy of placing the nature of the contacts on the record was viewed as a way of mitigating any violation.  This is exactly what was done by the present Council on June 16.  Each Council member was asked to place on the record who they spoke with to discuss the reorganization.  This is how we learned of the seven members being involved either directly or serially as discussed above.  Although this effort may fall short of a “cure” since the violation had already occurred, it nonetheless served as an attempt by the Council to mitigate the harm caused by the violation by placing into the public record all contacts they had with one another concerning the reorganization.

Of course, OIP will ultimately decide to what extent the Sunshine Law was violated, and the range of remedies available to the Council and public.  One possible extreme is a finding that the actions of the Council were willful.  This would subject the Council to possible criminal prosecution.  Although unlikely, it serves as a very important reminder to all board members of the sanctity of the Sunshine Law and the need to respect the public’s right to participate in the official affairs of their government.

Having now the benefit of hindsight, and having read the lawsuit filed by the West Hawai‘i Today, we have the following observations concerning the highly publicized Council meeting of June 16:

1. The Council’s “coup.” Some local media sources have described the actions of the Council majority on June 16 as a “coup.”  Merriam-Webster defines “coup” as “a brilliant, sudden, and unusually highly successful stroke or act.”  We surmise these media sources really intended to infer there was a “coups d`etat,” defined as “a sudden decisive exercise of force in politics.”  What definition most accurately describes the actions of the Council on June 16 will most likely be determined by the future of the present majority, their initiatives and their ability to craft meaningful legislation for the benefit of all island residents.
2. The Sunshine Law encourages self-reporting of violations. Historically there has been some valid criticism of the Sunshine Law lacking “teeth” in enforcing violations.  Absent the provision calling for criminal prosecution where there are willful violations, there are no civil remedies such as the imposition of fines or even the setting aside of actions taken by the board (with the exception of a lawsuit being filed within the statutorily mandated time, as West Hawai‘i Today has done).  However this absence of an immediate civil penalty has the effect of encouraging board members to admit violations of the Sunshine Law and in turn, provides the public with information they would not ordinarily have.  This is a good thing.  An example of this occurred at the June 16 Council meeting.  All Council members were asked in public and on the record to disclose the contacts they had with one another, and they did so.  Now we recognize there may be some criticism that not all members were candid, or did not describe the extent of their contact with one another, or that they should not have violated the Sunshine Law in the first place.  We cannot and do not endeavor to control what some may think or believe. The option the Council followed was not to retreat into recess or defer discussion of the allegations, but instead to individually ask all members to place on the record who they discussed the proposed reorganization with.  When considering the extreme option of having the Council members make no statement and simply allowing the OIP to conduct an investigation devoid of facts, it appears the route followed by the Council was preferable.

What does the Council need to do now?

Within 20 days after service of the lawsuit on the County, our office will be filing a response to the West Hawai‘i Today’s lawsuit in Court.  Since the lawsuit seeks to invalidate all post-reorganization actions taken by the Council, a decision was made by the Council to cancel the committee meetings scheduled for July 21, 2009.  This will allow attorneys from our office to properly brief the Council at its regularly scheduled meeting on July 22, 2009 with respect to the specifics of this lawsuit, and the ramifications of the Council moving ahead in taking official action while the lawsuit is pending.

There is no “unringing of the bell”

Some public criticism has focused on the discussion of the Council on June 16 once possible violations were revealed by them.  On the one extreme, there are some who believe the violations were willful and the only possible “cure” is the criminal prosecution of the offending Council members.  As with all matters involving our local government, every citizen is entitled to their opinion, and that right will always be respected.  However before there is a rush to judgment and conviction, respect for the adjudicatory process and hearing all sides of any controversy is imperative and strongly urged.

In the case of the Council’s reorganization, there can be no “unringing of the bell.”  Assuming a violation is found, this harm to the public is the basis upon which much of the present vocal criticism is premised.

On June 16, after the Council placed all of their contacts on the record, that was the extent of what they could do.  Had no lawsuit been filed, upon expiration of ninety days from the date of OIP’s opinion, Council business would have continued based on the reorganization.  This is not uncommon.  When boards subject to the Sunshine Law commit inadvertent violations, often the contacts that are the basis of the violation are placed on the record by board members.  Assuming the public is satisfied with this remedy, the board proceeds without the need to take any other formal action.

The filing of West Hawai‘i Today’s lawsuit dramatically changes things.  Since the lawsuit seeks the invalidation of the reorganization, the Court will now be asked to determine to what extent any Sunshine Law violation invalidated the reorganization and any subsequent official action taken by the Council.  The Court may very well find there was an inadvertent violation and allow the reorganization to stand.  Similarly the Court may find there was an inadvertent violation, but based on the harm to the public, the reorganization is invalid.  The Court could further order subsequent official actions of the reorganized Council are invalid.

These (and the other possible) outcomes are something outside the ultimate control of the West Hawai‘i Today and the Council.  For the Council, their present charge must be to move forward with the people’s business in a responsible manner while being cognizant of the legal challenges that they face.  This may include a collective decision by the Council to hear the reorganization resolutions again, as well as all resolutions and bills heard, deliberated and decided by the Council and its committees on July 7 and 8.

The danger of public advocacy based on misinformation

A remarkable written public statement concerning the Council’s response to OIP’s inquiry, made by member of the public and brought to our attention was this:

Sadly the joke of the day is the report prepared by Corporation Counsel Lincoln Ashida, submitted to the Office of Information Practices (OIP). His report was written in response to OIP’s inquiry about a possible violation of the Sunshine Law resulting from the private interactions of certain council members planning the ouster of council members Ford and Yagong as Chairs of certain council committees and of Pete Hoffmann from his officer position as council Vice Chair. Lincoln Ashida’s “coup report” does not identify any willful violation of the Sunshine Law and instead argues in favor of absolving the council members of any wrongdoing.

The suggestion that the attorney for the Council should advocate that his clients willfully violated the Sunshine Law (thereby subjecting them to criminal prosecution) is something we would expect from laypeople unfamiliar with the Hawai‘i Rules of Professional Conduct.  What was truly astounding was the above statement was made by an attorney who has been licensed to practice in Hawai‘i since 2006.

The very heart of the Hawai‘i Supreme Court’s rules governing attorney conduct in Hawai‘i says “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” This is further embodied in Rule 3.1 of the Hawai‘i Rules of Professional Conduct, which states in pertinent part (emphasis supplied) that “A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”

As has been repeatedly pointed out in the media, the finding of a willful violation of the Sunshine Law by Council members may subject them to criminal prosecution with a resulting jail sentence.  It is disingenuous for any lawyer with any knowledge of Hawai‘i’s rules of ethics to assert that an attorney should “throw their client under the bus” for the sake of currying favor with polarized public sentiment.  The adversarial system contemplates, and our ethics rules demand that attorneys conduct themselves in a manner consistent with having both sides of any dispute bring all of their arguments forward so that a court or other fact-finding body may come to an informed decision.

The argument by this lawyer is similar to the uninformed criticism I heard when I served this County as a prosecutor.  Public defenders are public servants who are charged with representing individuals accused of criminal acts.  I sometimes heard the criticism of them, “How can they represent crooks,” by a portion of the public that believed all law offenders should bypass the judicial process and proceed straight to jail.

This is not to suggest our citizens cannot have these views and voice their opinions.  However attorneys in our State have a greater responsibility.  Hawai‘i Supreme Court Chief Justice Ronald Moon has been a tireless advocate for the need of all attorneys in Hawai‘i to do their part to improve the image of the legal profession.  The Chief Justice’s charge to all of us has gone beyond promoting the aspirational requirement of pro bono service contemplated in our ethics rules, but extends to ensuring the rules of civility and fair dealing are strictly enforced.  To this end, lawyers should not knowingly publicly advocate a “duty” on the part of Corporation Counsel that is diametrically repugnant to the core responsibility a lawyer has of zealous representation in the adversarial system.

This is also not to suggest in any way that the Corporation Counsel would ever further any effort that would not be consistent with the best interests of the government or public.  We are well aware of our obligation under Rule 1.13 of the Rules of Professional Conduct.  Had there been any indication the acts of any Council member were willful with respect to a violation of the Sunshine Law, appropriate action would have been taken.  In the present case, by having the Office of Information Practices conduct an independent review and analysis, we have complied with part (f)(3) of the rule by “advising that a separate legal opinion on the matter be sought and considered.”

In our weekly message of April 21, 2008 (you can read it here), we explained the duty attorneys have to their clients, and why under our laws the public at large is not the client, despite our roles as public servants.  All of this may not change someone’s opinion about how things “should be.”  However we hope this has provided adequate background and reasons as to why the Corporation Counsel is required to take certain legal positions on various issues.  The critical review and commentary of the actions of elected and appointed public servants is important for a strong democracy.  However irresponsible and inflammatory statements made by an attorney advocating a position contrary to the requirements of the Hawai‘i Rules of Professional Conduct is contrary to the Chief Justice’s vision of improving the image of the legal profession.

It is an honor to serve all the people of the County of Hawai‘i.  As ever, if you have any questions on the above, please contact me via email at Lashida@co.hawaii.hi.us, or telephone at (808) 961-8304, extension 118.  This message was posted on July 15, 2009 at 2:00 p.m.

West Hawaii Today: More Ads… Less News

Anyone notice the new online layout for the West Hawaii Today?

They have switched to a four column template from a three column template.

What this does is squeezes out the news and gives room for more advertising on the front page.

More ads less news… check it out, the West Hawaii Today.

By the way, the Hawaii Tribune Herald is still at three columns, but I predict them to make the change soon.

Online ads are worth a bit more when they  stay on your front page then buried on pages underneath.

Open Message to Hawaii Tribune and West Hawaii Today Employees

Is there any way that you folks can make your articles a bit more entertaining to read?

I know a few of you folks have great senses of humor but it NEVER shows in any of the articles you folks pen for the paper.

I’m not going to name anyone in particular… you folks know who you are!

Save the paper and start giving some of  your readers some humor in the paper.

I’d love to read more humorous stuff at times.  I might even pick up an online copy every now and then.  I have to say… the piece  yesterday about the Department of Public Works blackballing some of us bloggers certainly humored me enough to drop some cash coin on the paper.

It must suck having to work under Stephens Media knowing that your okoles might be on the line for saying the wrong thing at the RIGHT TIME!

I must say… I applaud the recent efforts to get the paper online by at least 12:00 in the afternoon of late.

I know things are getting difficult and you all have deadlines to make… So I’ll make an excerption this time.  :roll:

And I’m just curious… what happens to all the pictures that aren’t published?  I publish all the pictures I take on my blog whether I use them or not… any chance you folks could at least do that with some of your online stuff?  I mean we all know a picture is worth a thousand words.

I’m not gonna start critiquing every damn article and issue that you folks publish.  It seems we have another young gun in town that likes to do that, so maybe I’ll just send a little Brooklyn Kanak Attack your way every once in awhile.

There must be a way to make your folks paper more enjoyable.  The Advertiser obviously just kicked the crap out of the Star-Bulletin.

My general feeling, is besides the big bucks that Gannett has to waste on the paper… the downsizing of the paper and moving it towards more of an online beast is what really dominated the Star-Bulletin.

Posting anything and everything Hawaii related at all times of the day, drew readers to the Advertiser constantly… and still does.

You folks need an online person that can update Big Island things as they happen… Not a day later… not an hour later… but as things happen.

I know someone who is looking for a job like that :lol:

If the Tribune Herald and the West Hawaii Today want to stay afloat in this new digital era… they are going to have to get with it quick.

Already we have online papers like Hawaii 24/7 that give us more content for FREE and in a timely manner then anything the TH or WHT can do.

We have a Video Blogger in Mr. David Corrigan over here at Big Island Video News that gets comments like this from professionals on Oahu:

“Check out Dave Corrigan’s volcano coverage and note the quality of his videos and his website. Blackballing this work is clearly a mistake, I wish we could have similar coverage of Oahu“

These pictures don’t have much to do with this blog… I just thought I’d throw it in for nothing.  :roll:

West Hawaii Today Reports on Building “Cod”

I know I make typos and mistakes all the time.  I’ve never claimed to be a great speller and I certainly don’t have a copy editor.

I just love this headline in today’s online West Hawaii Today:

“Citizens push for greener building cod”

It will probably be fixed soon enough, but you can check it out here in the meantime.