We know that the Maui County Liquor Commission’s Oct. 7 selection of Dana “Son of former LC Director Joe” Souza to be the new Liquor Control Director was fast, but was it too fast? Did it, in fact, violate the state’s Sunshine Law? At least one local public official thinks so.
“It was a railroad job,” said the official, who requested anonymity. “I have concerns as to how it was done. Selecting a new director was not on the agenda.”
The Sunshine Law, put simply, requires all public commissions, boards and councils in the state to post detailed agendas ahead of meetings and then take action only on what’s posted on said agendas. Its purpose is to make sure members of the public have enough time to see what the panel will take up before deciding whether to attend or even give testimony.
“It’s to protect our democratic way of government so the public can participate,” Lorna Aratani, a staff attorney with the state’s Office of Information Practices, which monitors compliance with the Sunshine Law, told me. “If notice isn’t sufficient, then the public wouldn’t know to participate.”
According to LC Deputy Director Traci Fujita Villarosa–who is a former attorney with the Maui County Corporation Counsel’s office–longtime LC Director Frank Silva announced his retirement at the Sept. 9, 2015 Liquor Commission hearing. So the next month, the following item appeared at the end of the Oct. 7 commission agenda (under “ADMINISTRATIVE AFFAIRS”):
“Discussion on the process for the appointment of a new Director of the Department of Liquor Control.”
That’s it. Sure, there was an italicized note following that saying the commission would probably have to “go into executive session” to talk with its attorney about its “powers, duties, privileges, immunities, and liabilities” in regards to selecting a new director, but there was nothing more than that. When I read the agenda in advance of the Oct. 7 meeting, I thought all the commission would do was go over the “process” of selecting a new director, and leave the actual selection to further meetings.
After all, there was recent precedent for all this. In 2014, Police Chief Gary Yabuta announced that he would step down and take a new job on Oahu. That meant the Maui County Police Commission–a panel very similar to the Liquor Commission–had to select a new chief.
They did so over a period of five months. Meeting agendas constantly alerted the public as to their progress. The first time the matter appeared on the Police Commission agenda was during its May 28, 2014 meeting. The agenda for that meeting included items like “Determination of Process for the Police Chief Selection” (which involved sub-items like “Review of Recruitment,” “Discussion of Interview Questions” and “Application Deadline”) and “Creation of Selection Committee.”
This new Selection Committee updated the rest of the Police Commission at their subsequent meetings on June 18, 2014 and July 16, 2014 (both updates were included on the respective agendas). Finally, the Sept. 3, 2014 Police Commission agenda wrapped it all up with the items “Interview and Discussion of Police Chief Applicants” and “Selection of Police Chief.”
The Liquor Commission did none of that. They told the public they were discussing the “process” on Oct. 7, and then skipped all the way to selection (by the way, Dana Souza, the new director, was also a member of the Liquor Commission).
Aratani would not comment specifically on the Liquor Commission issue, and wouldn’t render an opinion on whether their Oct. 7 agenda and subsequent director selection violated the Sunshine Law. So I asked her to comment on a hypothetical situation in which a panel posted on their agenda that they would discuss the “process”–I made sure to use that word–of selecting a new director but then actually chose one.
“That’s a gray area,” she said. “But it certainly doesn’t seem to be in the spirit of the Sunshine Law. A reasonable person looking at that agenda would have no idea they were actually selecting a director.”
Hypothetically, of course.
Ed Kushi, the Corporation Counsel attorney who advises the Liquor Commission, did not respond to an emailed request for comment by press time. In its Oct. 8 story on Souza’s selection, The Maui News quoted Liquor Commission chairperson Robert Tanaka as saying, “Everybody felt he was the right person.”