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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. [email protected] 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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