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League of Women Voters of Kaua`i County, POB 1181, Lihue, HI

96766
September 13, 2001

Office of Information and Practices
Moya Gray, Director
No. 1 Capitol District Building
250 South Hotel Street, Suite 107
Honolulu, HI 96813

Dear Ms. Gray,

This is a request for the Office of Information and Practices (OIP) to revisit its Advisory
Opinion 94-23 which concluded that Ho’ike: Kauai Community Television, Inc. (Ho’ike)
is not a "board" as the term is defined in section 92F-3, Hawaiian Revised Statutes, and
therefore is not subject to the provisions of the Uniform Information Practices Act
(UIPA), and to reverse that Opinion.

§92-2 Definitions. As used in this part:
(1) "Board" means any agency, board, commission, authority, or committee of the
State or its political subdivisions which is created by constitution, statute, rule, or
executive order, to have supervision, control, jurisdiction or advisory power over
specific matters and which is required to conduct meetings and to take official
actions

This request is made because a continuing movement away from part 1, Chapter 92
"Sunshine Law" provisions by the Ho’ike Board of Directors is apparent. In recent
months the Board has systematically stripped major elements of open governance and
Sunshine from the Ho’ike By Laws. While my immediate concern is with Ho’ike, the
Ho’ike parallel may also apply to other Public Education Government (PEG) Boards.

In my view the Opinion was inherently flawed because of inaccurate and incomplete
information provided to you by the Department of Commerce and Consumer Affairs
(DCCA). The Opinion stated:

"(Ho`ike) does not receive any financial or other assistance from State or county
government.” "Nor is there any government involvement in or control over Ho'ike's
activities and operations.”

While the Opinion recognized that Akaku, also a community television broadcasting
company having the same characteristics as Ho’ike, initially received DCCA assistance it
erroneously concludes that “DCCA is no longer involved with any of Ho`ike’s activities
or operations”. In fact, the majority of the Ho’ike Board of Directors is appointed by the
director of DCCA and DCCA has reserved the power to remove Ho’ike directors. The
power of DCCA to appoint a majority of the Ho’ike directors and the exercise of that
power will inevitably have an ongoing effect on Ho’ike’s activities and operations. This
is particularly true in a corporation such as Ho’ike where the Board exercises
management as well as policy making decisions. Similarly the power to remove directors
of Ho’ike provides a persistent shadow of DCCA over the Ho’ike affairs.

When Hoike was initiated by the DCCA, the director appointed the first board and
assigned them the task of drafting the bylaws. This draft was submitted to DCCA for
approval prior to funding. Therefore, the DCCA director was approving bylaws that
included the DCCA ongoing appointment process as a condition of funding. These
bylaws stipulate Article IV. Sec. 6.2 "The Director of the DCCA shall appoint Seven (7)
Directors". And Sec.6.10 "Directors may resign from the Board by submitting their
resignation in writing to the Board of Directors and the Director of the DCCA." The
original board was unlikely to stipulate another appointment designee or even an election
process with the perceived pressure from DCCA. The current board supports that the
appointment and removal process that is considered a stipulation of funding.

In response to an inquiry as to whether DCCA has the power to remove directors, a letter
dated August 2, 2001 from Clyde S. Sonobe, Cable Television Administrator stated
“Historically the Director (DCCA) has, in the past, removed a board member of a public,
education, government access (PEG) facility. The initiation of the removal process was
instituted by board members of the PEG. This letter does not imply that board removal
may only occur upon request by another board member…. Removal of a board member
is always evaluated on a case by case basis.”

The funding of Ho'ike implements the provisions of the 1984 Federal Cable Rights Act
which authorizes the use of up to 5% of a cable company’s gross revenues for PEG
access channels. The State of Hawaii has mandated such use and it seems clear that state
mandated funding constitutes "financial assistance".

The State power to appoint a majority of the Ho’ike Board, the power to remove
directors, the mandate funding and the sole source nature of Ho’ike’s contract with
DCCA strongly indicate the application of the term "board" to Ho’ike.

This position is supported by the recent OIP Opinion Letter 01-01 dated April 9, 2001
which incorporates an analysis of the Hawaiian Supreme Court decision in Green Sand
Community Ass'n v. Hayward, Civ. No. 93-3259. In that case the Court stated that a
board must be:

(1) An agency, board, commission, authority, or committee of the State or its
political subdivisions;
(2) which is created by constitution, statute, rule, or executive order;
(3) to have supervision, control, jurisdiction, or advisory power over specific
matters;
(4) which is required to conduct meetings; and
(5) which is required to take official actions

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The Green Sands decision is silent as to whether an agency must perform a government
function. Nevertheless it is submitted that Ho’ike does fulfil a government function in
that it was created to support the intent of the 1984 Cable Rights Act and related
legislation that encourages free speech and seeks to turn passive viewers of messages into
message-makers. One of the most important functions of government is to educate and
inform the people to assure the continued viability of our democracy.

Cablecasting and broadcasting PEG access is a function performed by Ho`ike and it does
provide a service to the government, education and the public. Hoike has been the
assigned task by DCCA of cablecasting all three PEG channels. Government
programming, including County Council, Mayor's Chat, Planning Commission and State
Legislature programs all appear on the Government channel 13. The Dept. of Education
and U.H. Distance Learning programs are scheduled on Channel 10, and all other public
programs appear on Channel 12. If government programming runs long, it may appear on
the public channel 12. All program presenters must be identified as proscribed by law
and Ho`ike policy.

The OIP Opinion Ltr. No. 01-01 concluded that Vision Teams can be considered boards
covered by the Sunshine Law, and as it seems evident that Ho’ike satisfies all five of the
Green Sands elements and is a board subject to the Sunshine Law, I urge you to
reconsider your Advisory Opinion 94-23.

Sincerely,

Carol Bain
President, Kauai League of Women Voters
PO Box 2320, Lihue, HI 96766

PS - I have additional specifics to deliver in person. If you can meet 9/18, 9/20 or a later date please let me
know. 808-246-2111. Bain@kauai.net

Attachment

PPS: When Ho'ike was initiated the director of DCCA appointed its first board of directors
and assigned them the responsibility of drafting the by-laws. This draft was submitted to,
and approved by, the DCCA director prior to funding. The by-laws provide in Article IV
Section 6.2 "The director of the DCCA shall appoint seven (7) directors" There are 11
directors. Thus, the DCCA director accepted his empowerment for ongoing director
appointment and determined this process as a condition of funding.The DCCA director
authority is accepted by the current Ho'ike board.

A striking resemblance in language is seen throughout the original by-laws of all PEG
access corporations set up by DCCA in Hawaii. Of particular note is the inclusion of
HRS-92 wording and almost identical board appointment processes (IE: DCCA director
appoints board majority). One may conclude that the DCCA director did wish to
incorporate major sections of Sunshine Law and make board appointments to all PEG
access corporations.

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