Hawaii chapter loses TRO request, may appeal
The Hawaii chapter of the Society of Professional Journalists probably will appeal a state Circuit Court judge’s ruling that the University of Hawaii Board of Regents didn’t violate the open-meetings law.
Judge Virginia Lea Crandall says it’s OK for the regents to decide the hiring of a president and his salary behind closed doors.
Crandall turned down a request by the Hawaii chapter for a temporary restraining order to force the Board of Regents to vote again on the president’s salary.
The chapter and graduate student Mamo Kim said the board violated the state Sunshine Law by determining the president-designate Evan Dobelle’s salary of $442,000 a year in executive session. UH President Kenneth Mortimer makes $167,000. Dobelle is to become president July 2.
But Crandall said there was no violation because the board issued proper notice on the appointment and voted on at its March 12 meeting. She said the public had an opportunity to testify about the salary at that time.
Also two March closed-door meetings at which salary and Dobelle’s hiring were discussed and decided upon had proper notice because they were continuations of a February meeting that had proper notice to the public, the judge said.
Crandall also ruled that the appointment and salary could be decided in closed-door meetings. "The terms and conditions of employment are an essential part of the decision to hire and it is appropriate to discuss those in executive session," she said.
Carl Varady, attorney for the Hawaii chapter, SPJ, and Kim, said the power to hire and the power to set the salary are separate both traditionally and legally. The Sunshine Law should be interpreted to allow executive sessions only when hiring is at stake, he said.
Also, the secret meetings at which hiring and salary actually were approved did not have the proper notice to the public, he said.
The decision at the meetings made the March 12 vote a "perfunctory ratification," Varady said.
Varady said Dobelle’s appointment and salary were not being question, but rather the process.
The secret meetings deprived the public of the right to participate in decisions on public policy, Varady said.
"This is an extraordinary amount of money a state official is being paid," he said. "Decisions of public importance are not made in the back room."
UH attorney Ruth Tsujimura said, "The decision to hire Dr. Dobelle was made during an open meeting (on March 12) and the notice was adequate."
Tsujimura said the March 1 and 5 closed door meetings were a continuation of a properly announced meeting Feb. 23 that had been recessed and reconvened twice.
"The meetings of March 1 and 5 were clearly a continuation of the hiring process in executive session," she said.
The Sunshine Law allows the board to go into executive session to discuss matters of appointment and to protect the privacy of a person, she said.
Candidates could not be assured of privacy if terms of employment, such as salary, had to be discussed publicly, Tsujimura said.
Hearing set for 8:30 a.m. May 17 in Circuit Court
A hearing will be held on the chapter's motion for temporary restraining order to force the Board of Regents to vote publicly on the University of Hawaii president's salary.
MOTION FOR TEMPORARY RESTRAINING ORDER
Law Offices of Carl M. Varady
Carl M. Varady 4870
Pacific Tower
1001 Bishop Street
Suite 2870
Honolulu, Hawai‘i 96813
Telephone: 808 523-8447
Attorney for Plaintiffs
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.
Civil No. 01-1-1262-04
(Other Civil Action)
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF CARL M. VARADY; NOTICE OF MOTION; CERTIFICATE OF SERVICE
HEARING DATE:
TIME:
JUDGE:
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER Pursuant to Rules 7 and 65 of the Hawai‘i Rules of Civil Procedure, Plaintiffs, by and through their undersigned attorney, do hereby request the entry of a temporary restraining order against the defendants above-named, to redress the irreparable injury inflicted on plaintiffs by the defendants’ actions and inactions, as set forth in more detail in the memorandum filed herewith and incorporated herein.
Plaintiffs are a professional association of Hawai‘i journalists and a student at the University of Hawai‘i who have been excluded, by the defendants, from observing, submitting data, verbal and written testimony concerning the decision to raise the pay of the University of Hawai‘i president which decision was made in secret executive session by the University Board of Regents. On April 19, 2001, Plaintiffs’ attorney wrote to University Counsel asking that the Regents’ decision be voided and reconsidered at a public meeting. On April 20, 2001, Plaintiff Kim request that the Regents place the matter on their agenda for discussion at their next public meeting scheduled for May 18, 2001. The Regents have refused this request.
This motion seeks:
1. A declaration that Defendants’ actions violated the Hawai‘i Open Meetings Law, Chapter 92, Haw. Rev. Stat.;
2. An order:
a. Voiding the Regents’ decisions to raise the University president’s pay to $442,000;
b. Voiding the Regents’ decision on April 20, 2001, in which they refused Plaintiffs’ request to discuss the matter of the University president’s pay at the next regularly scheduled Regents’ meeting on May 18, 2001; and
c. Staying any further discussion, meeting or consideration concerning the matter of the President’s pay by the Regents until the Regents first give public notice as provided by § 92-7, Haw. Rev. Stat., and hold a public meeting and discussion consistent with the provisions of §§ 92-3 & -7, Haw. Rev. Stat.
This Motion is supported by the attached declarations and exhibits and all documents on file with the court as of the date of the hearing conducted on this motion.
DATED: Honolulu, Hawai‘i, April , 2001.
CARL M. VARADY
Attorney for Plaintiffs
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.
Civil No. 01-1-1262-04
(Other Civil Action)
MEMORANDUM IN SUPPORT OF MOTION
MEMORANDUM IN SUPPORT OF MOTION
I. INTRODUCTION.
"A popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy; or perhaps both." The Writings of James Madison 103 (Hunt. ed. 1910).
The Plaintiffs and all citizens of Hawai‘i have the right to insist that people chosen to act as leaders at academic institutions and the conditions under which they serve will assure the institutions’ important public function will be discharged with the highest standards of competence and integrity. Presidents of public colleges and Universities serve as employees and as symbols, personifying the institutions they represent. Students identify them as the principal representative of the institution. Alumni view them as the link to their collegiate past. Donors perceive them as caretakers of the academic purposes and goals of the institution. Faculty and staff look to them as the ultimate authority, carefully guiding them as they work together to achieve extremely important goals. And, as government employees with the highest educational responsibilities, they are invested with a great deal of public trust. That trust carries with an equally great degree of public scrutiny. The Regents should be thankful for any public input and assistance in making decisions regarding University leadership; in this case, the rejected such offers and chose, instead, to avoid scrutiny through a secret decision making process regarding the president’s salary. The Court has the opportunity to correct the University Board of Regents in their attempts to avoid that scrutiny, which the legislature clearly intended, imposed by the Legislature in the Hawai‘i Open Meetings Law, Chapt. 92, Haw. Rev. Stat.
This Court is asked, through this case, to decide a matter of great public importance: Is the University of Hawai‘i Board of Regents’ (the "Regents") decision to increase the University president’s pay to $442,000–nearly 5 times the Governor’s salary of $94,780–a decision that can be made in secret executive meeting, or must it be made a an open meeting subject to public scrutiny and participation, as required by § 92-2, Haw. Rev. Stat. (the "Open Meetings Law")? Plaintiff assert that the decision on salary for the president’s position is subject to the Open Meetings Law, both under its express terms and based on the strong public policy favoring public meeting and discussion of public issues. Plaintiffs further believe that the public interest would be directly served, and confidence in the decision making process enhanced, if the Court were to grant the requested relief. This lawsuit does not challenge the decision to hire Mr. Dobelle. Nor does it contest the amount he will be paid. This lawsuit seeks only to require that the decision be made with full public observation, comment and participation required by Hawai‘i law. In doing so, it seeks to restore public confidence, envisioned by the Legislature, that occurs when such decisions are made under full light of public scrutiny under Chapter 92, Haw. Rev. Stat.
II. FACTS.
The facts of this case, as set forth in the verified complaint, are not disputed: at a specially called meeting, held February 23, 2001, the University of Hawai‘i Board of Regents ("Regents"), in secret executive meeting, decided to raise the pay of the University president’s salary to $442,000–more than double that of current president’s $165,184 salary and now the highest salary in the University system. Verified Complaint ¶ 15. The decision was made without public participation and without public discussion of the merits of the decision. The agenda for the February 23, 2001, Regents’ meeting listed one nondescript item, merely citing the Open Meetings Law:
To consider matters covered by Hawai‘i Revised Statutes Section 92-5(a)(2) Relating to appointments and evaluation of employees.
Exhibit 1 to Declaration of Carl M. Varady.
The consideration of and decision to pay an extraordinarily high salary to the University president, therefore, were not described or included in the Regents’ agenda, as required by § 92-7, Haw. Rev. Stat. The appointment of the new president was subsequently made on March 12, 2001, at a special executive meeting of the Regents. Exhibit 2 to Declaration of Carl M. Varady.
Section 92-5, Haw. Rev. Stat., of the Open Meetings Law states that, among the specific limited matters otherwise exempt from public meetings, a public board may consider the "hire, evaluation, dismissal, or discipline of an officer or employee" without complying with the requirements of a public meeting set forth in §92-2, Haw. Rev. Stat. There is no exemption in the Open Meetings Law that would permit consideration of salary or compensation in secret.
The salary paid to the University president is a matter of great concern to the public and, in particular, to the Hawai‘i Society of Professional Journalists ("HSPJ") and students, including Mamo Kim. Verified Complaint ¶¶ 16 & 24. The decision to pay an extraordinarily high salary to the University president was a matter of reasonably major importance and action thereon by the Board of Regents affected a significant number of persons because it will be paid for with public funds. Id. ¶ 16.
As a consequence of Defendants’ failure to notify the public of the salary discussion and decision-making through its agendas and by conducting a secret decision-making process, Plaintiffs have suffered irreparable harm by being excluded from observing the decision making or submitting data, views, or arguments, in writing, or giving verbal testimony contemplated by the Open Meetings Law. Id. ¶¶ 28-30. This suit was commenced within 90 days of the alleged violation of Chapter 92. Id. ¶ 31.
Prior to commencing this action, Plaintiffs requested, in a letter sent to the Office of University Counsel, that the issue of the University president’s salary be considered at an open public meeting by the Board of Regents. Exhibit 3 to Declaration of Carl M. Varady.
Prior to commencing this action, Plaintiffs requested, in person at the Board of Regents’ meeting on April 20, 2001, that the issue of the University president’s salary be considered at an open public meeting by the Board of Regents. Verified Complaint ¶ 34. The Board of Regents left the public meeting after the request was made, entered a secret executive meeting, decided the issue and refused Plaintiffs’ request. Id. ¶ 35. The Board of Regents decided the request in secret, without first taking an affirmative vote of two-thirds of the members present, as required by § 92-4, Haw. Rev. Stat., to permit the Regents lawfully to convene and executive meeting. Id. ¶ 36.
Plaintiffs assert, based on the facts detailed above, that Defendants committed the following violations of the Open Meetings Law:
1. February 23, 2001 Agenda: The agenda for the February 23, 2001, executive session violates the mandates of § 92-7 (a), Haw. Rev. Stat. This section of the Open Meetings Law requires that the board give written public notice of any regular, special, or rescheduled meeting, or any executive meeting. The notice shall include an agenda which lists all of the items to be considered at the forthcoming meeting, the date, time, and place of the meeting, and in the case of an executive meeting the purpose shall be stated. The agenda for the February 23, 2001, meeting does not contain the required disclosures and, therefore, decisions at the meeting are voidable under § 92-11, Haw. Rev. Stat.
2. February 23, 2001, Executive Meeting: The executive meeting of the Regents on February 23, 2001, violates the provisions of §§ 92-3, -4 & -5, Haw. Rev. Stat. Those sections limit public boards’ use of secret meetings to limited circumstances in which a board may consider the hire, evaluation, dismissal or discipline of an employee. The Regents’ decision regarding the president’s salary was not within the express exemptions and is voidable under § 92-11, Haw. Rev. Stat.
3. April 20, 2001, Executive Meeting: At the April 20, 2001, regular Regents’ meeting, Plaintiff Kim requested that the matter of the president’s salary be placed on the agenda for the May 18, 2001, regular meeting. The Regents adjourned to an executive meeting to consider this request in secret, without a vote of two-thirds of the members prior to adjourning. Their decision to reject the request during a secret meeting that occurred, without two-thirds approval, is voidable pursuant to §§ 92-4 & -11, Haw. Rev. Stat.
Consequently, Plaintiffs seek an order : (1) voiding the Regents’ decisions to raise the University president’s pay to $442,000; (2) voiding the Regents’ decision on April 20, 2001, to refuse the request to discuss the matter of the University president’s pay at the next regularly scheduled Regents’ meeting on May 18, 2001; and (3) staying any further discussion, meeting or consideration concerning the matter of the President’s pay by the Regents until the Regents first give public notice as provided by § 92-7, Haw. Rev. Stat., and hold a public meeting consistent with the provisions of §§ 92-3 & -7, Haw. Rev. Stat.
III. A TEMPORARY INJUNCTION SHOULD ISSUE.
A temporary injunction, under Rule 65, should issue if:
(a) the Plaintiff is likely to prevail on the merits or raises serious questions going to the merits to make them fair ground for litigation;
(b) the balance of hardship favors the party requesting the injunctive relief; and
(c) the public interest is served by issuance of the injunction.
Life of the Land v. Ariyoshi, 59 Haw. 156, 158 (1978). A moving party need not demonstrate risk of irreparable injury, but must at least show the party will suffer a degree of hardship that outweighs the hardship facing the opposing party if the injunction is not issued. Topanga Press v. City of Los Angeles, 989 F.2d 1524, 1528 (9th Cir. 1993). Similarly, a moving party need not demonstrate that the party will succeed on the merits, but must at least show that the cause presents serious questions of law worthy of litigation. Id.; J.B v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997). Thus, a plaintiff needs only to demonstrate "irreparable injury and either likelihood of success on the merits or sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting injunctive relief." Jackson Dairy, Inc. v. H.P. Hood & Sons Inc., 596 F.2d 70, 72 (2d Cir. 1979).
Regarding the interplay of these factors: "If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir. 1988). This means that courts have recognized a continuum of injury for the purposes of determining whether to issue injunctive relief: as the injury is more serious, the importance of likely success on the merits decreases and vice versa. As the Hawai‘i Intermediate Court of Appeals explained:
The more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits. Likewise, the greater the probability the party seeking the injunction is likely to prevail on the merits, the less he has to show that the balance of irreparable damage favors issuance of the injunction.
Penn v. Transportation Hawaii Lease, Ltd., 2 Haw. App. 272, 276, 630 P.2d 646, 650 (Ct. App. 1981)(citations omitted).
Injury is irreparable where it is of such a character that a fair and reasonable redress may not be had through traditional legal remedies–i.e., money damages. Id. 2 Haw. App. at 276 n.1, 630 P.2d 650 at n.1; Klausmeyer v. Makaha V.F., Ltd., 41 Haw. 287 (1956).
Plaintiffs’ claims clearly satisfy the standards described above, and the requested injunction should issue.
A. Likelihood of Success on the Merits or Sufficiently Serious Questions Going to the Merits Make Plaintiff’s Claims Fair Ground for Injunctive Relief.
This prong of the three-pronged test for Rule 65 is met by a showing that there are serious questions going to the merits or, alternatively, a showing that the Plaintiffs probably will prevail on the merits. Under either version of this prong, however, the instant Plaintiffs satisfy this test.
1. Serious Questions Going to the Merits Are Raised by the Regents’ Refusal to Discuss the President’s Salary at a Public Meeting.
a. The policies underlying Hawaii’s Open Meetings Law strongly favor Plaintiff’s position that the president’s salary must be discussed publicly.
Hawaii’s Open Meetings Law, Chapter 92, Haw. Rev. Stat., was adopted in 1975. Its stated purpose is to open government decision making to the public and to ensure that anyone affected by such decisions has a fair opportunity to speak and provide information concerning the decision and the public body’s process of making the decision. The statute itself leaves no doubt regarding this purpose:
In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the express policy of this State that the formation and conduct of public policy -the discussions, deliberations, decisions, and action of governmental agencies -shall be conducted as openly as possible.
Section 92-1, Haw. Rev. Stat. This same section continues to state:
To implement this policy the legislature declares that:
(1)_It is the intent of this part to protect the people's right to know;
(2)_The provisions requiring open meetings shall be liberally construed; and
(3)_The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
Id.
Section 92-3, Haw. Rev. Stat., of the Open Meetings Law, states that every meeting of all public boards shall be open to the public and all persons shall be permitted to attend any meeting. The Open Meetings Law’s mandates apply to all "discussions, deliberations and actions of government boards." Kahana Sunset Owners, Assn. v. Maui County Council, 86 Haw. 132, 948 P.2d 122 (1997); Kaapu v. Aloha Tower Development Corp., 74 Haw. 365, 846 P.2d 882 (1993); Painting Industry of Hawaii Market Development Fund v. Alm, 69 Haw. 449, 746 P. 2d 79 (1987); Atty. Gen. Op. 85-2 (Feb. 4, 1985). There is no exception for the Regents.of Trustees of Cornell University); Carl v. Board of Regents of University of Oklahoma, 577 P.2d 912, 915 (Okla. 1978) (University of Oklahoma Board of Regents and Medical School Admissions Board). See, Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) (student affairs committee of state university board of trustees); People ex rel. Byron v. Board of Trustees of Southern Illinois University, 90 Ill. App. 3d 88, 412 N.E.2d 1188, 45 Ill. Dec. 606 (1980) (Board of Trustees of SIU); Greene v. Athletic Council of Iowa State University, 251 N.W.2d 559 (Iowa 1977) (state university athletic council, which exercised powers of state board of regents); Courier-Journal & Louisville Times Co. v. University of Louisville Board of Trustees, 596 S.W.2d 374 (Ky.1980) (board of directors of private, non-profit corporation created by state university board of trustees where the board of trustees constitutes a quorum of the board of directors).
There is no exception for Regents because the Legislature has made a policy choice: the right of the public to participate and be informed transcends any loss of efficiency in the Regents’ decision to set the president’s salary. See, Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732. S.W.2d 884, 886 (1987)(state open meetings law applied to "advisory" committee comprised of five trustees, four faculty and one student).
Chapter 92 is similar in structure and purpose to the federal Sunshine Act, 5 U.S.C. § 552(b). Like its state counterpart, the federal act’s declared purpose is to "increase the public’s faith in the integrity of government, enable the public to better understand decisions reached by the Government, and better acquaint the public with the process by which agency decisions are reached." Sen. Rep. No. 94-354 at 1, Exhibit 4. In testimony in favor of the federal Sunshine Act, John Gardner of Common Cause spoke eloquently on the subject of secrecy, testifying:
Secrecy is fatal to accountability. Citizens cannot hold government officials accountable . . . if they do not know what government officials are doing. All of the great instruments of accountability that the citizens must depend on–Congress, the courts, the electoral process, the press–may be rendered impotent if information crucial to their function is withheld.
Sen. Rep. No. 94-354 at 5.
Obviously, openness in government "reduces distrust of the decision making process, enhances the public’s understanding of how government decisions are made, increases cooperation between the public and governmental boards, creates better public understanding of the reason for government decisions, and promotes greater compliance with difficult decisions government must often make." Id. at 6.
The importance of open meetings laws was aptly described by Professor Charles N. Davis, who explained:
Deeply imbedded in the principles of democratic government is the notion that the process of government should be open to public scrutiny. Central to this cause are "sunshine" laws requiring governmental bodies to give the public access to the decision-making process in the form of public meetings, so that the citizenry can learn not only what decisions are made, but also why and how decisions are made.
C. Davis, Sunshine Laws & Judicial Discretion: A Proposal for Reform of State Sunshine Law Enforcement Provisions, 28 Urban Lawyer 41, 42 (Winter 1996).
Professor Davis goes on to state:
The concept of open meetings is based on the belief that public knowledge of the considerations that lead to governmental action is essential to democracy. Sunshine laws also promote citizen participation in public policymaking decisions. . . . [I]ntelligent decisions cannot be made unless citizens are well-informed about government activities and the decision-making process.
. . . .
Open meetings increase public trust by reducing governmental secrecy. Sunshine laws also serve as a check on corruption, allowing the public to monitor closely the decision-making process of governmental bodies. Public access to government meetings also forces public bodies to provide a forum for discussion of public issues.
Id. at 43. The language of Hawaii’s Open Meetings Law confirms Hawaii’s legislative purpose to serve these same values and objectives.
Application of the Open Meetings Law to the Regents’ discussion of the University president’s salary enables Hawai‘i citizens to possess information necessary to retain control over their highest educational institution and assure that public funds are being expended in a manner consistent with the public policy. Even though they are a body created under the Hawai‘i constitution, the Regents are not beyond the lawmaking power of the Legislature, to guard against government secrecy and guarantee "sunshine" in all government matters of importance. See, Board of Trustees v. Mississippi Publishers Corp., 478 So. 2d 269, 276 (1985). Nor is the Regents’ power infringed on, interfered with or diminished by submission to the Open Meetings Law, even if openness is less convenient or pleasant. Id. Openness is government is the public policy of Hawai‘i. The public’s business must be open in a democratic society, even in moments that are difficult or unpleasant, to maintain public confidence in officials and the process and to make intelligent informed judgments. Id.
The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. . . . One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions these specified boards and commissions should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are made.
Id.
Granting the requested relief merely furthers the express legislative policy favoring public meetings and discussion of matters of importance to Hawai‘i citizens in public.
b. Chapter 92's language sets forth rules of construction that clearly favor Plaintiffs’ position. " \l 4
The language of Hawaii’s Open Meetings Law is unambiguous: every meeting of all public boards shall be open to the public and all persons shall be permitted to attend any meeting. § 92-3, Haw. Rev. Stat. The statute’s principles of construction state: "The provisions requiring open meetings shall be liberally construed; and, The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings." §§ 92-1(2) & (3), Haw. Rev. Stat. Thus, applying express legislative policy, questions concerning open meetings ordinarily should be resolved in favor of requiring openness.
Hawai‘i principles of statutory construction further support this conclusion.
Where the statutory language is plain and unambiguous, the reviewing court’s sole duty is to give effect to its plain and obvious meaning. International Savings and Loan Association v. Wiig, 82 Hawai’i 197, 199, 921 P.2d 117, 118 (1996). Courts "must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose." In re Water Use Permit Applications, 94 Hawai’i 97, 144, 9 P.3d 409, 456 (2000); Amantiad v. Odum, 90 Hawai’i 152, 160, 977 P.2d 160, 168 (1999).
Thus, the Court is directed by the statutory language to conclude that the salary decision cannot be made in secret and that the Regents must convene a public meeting before adopting any decision concerning salary. There is no exception in § 92-5, Haw. Rev. Stat. that would permit a secret meeting by the Regents to discuss salary or other terms and conditions of employment. The terms and conditions of employment for a particular position are not included within the exception for decisions to "hire." Atty. Gen. Op. 75-11 (Sept. 30, 1975)(rejecting Board of Education attempt to meet in executive session to discuss terms and conditions of Superintendent’s employment). Exhibit 5 to Declaration of Carl M. Varady.
General principles of statutory construction also confirm this conclusion.
c. General principles of construction favor Plaintiffs’ Open Meeting request.
Remedial statutes have special rules for statutory construction. "[R]emedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries." N. Singer, 3 Sutherland, Statutes and Statutory Construction § 60.02 (4th ed. 1986). Because Chapter 92 is a remedial statute, it must be liberally construed to accomplish the purpose for which is was enacted. Taylor v. Government Employees Insurance Company, 90 Hawai’i 302, 308, 978 P.2d 740, 746 (1999); Flores v. United Air Lines, 70 Hawai’i 1, 12, 757 P.2d 641, 647 (1988).
Read together with the rule that the words of a law are generally to be understood in their most known and general or popular use or meaning, § 1-14, Haw. Rev. Stat., the Court must conclude that Hawaii’s rules of statutory construction also warrant a conclusion that a public Regents’ meeting to discuss salary serves the remedial purpose of the statute as well as the generally accepted definitions of the exceptions. "Salary," "pay," "terms and conditions of employment" are not included within the common meaning of express exceptions for which a secret meeting is permitted under § 92-5, Haw. Rev. Stat. Nor, would it be consistent with the remedial purposes of the Open Meetings Law to construe the exceptions in such a broad manner.
d. That decisions concerning salary are distinct from the Regents’ decision to "hire" is supported by reference to other law. " \l 4
Article X, section 6 of Hawaii’s constitution empower the Regents "to formulate policy, and to exercise control over the university through its executive officer, the president of the university, who shall be appointed by the board." It is by statute, however, that the Legislature has delegated the separate matter of salary to the Regents. Section 26-52(2), Haw. Rev. Stat., delegates this authority, stating, "The salary of the president of the University of Hawaii shall be set by the board of regents."
Hawai‘i legislation also dictates that "laws in pari materia, or upon the same subject matter, shall be construed with reference to each other." § 1-16, Haw. Rev. Stat. Reading the statute and constitution together, the Regents’ powers regarding "appointment" and "salary" are treated as distinct, further corroborating that their executive decision to "hire" does not include their decision on "salary."
This conclusion is bolstered by the fact that other states’ statutes have expressly included the terms "salary," "compensation" or "terms and conditions of employment," where those states have opted for secretive deliberation regarding those terms.
A review of 50 other open meetings or "Government in Sunshine" laws, shows that only the minority of states permit executive session discussions of salary matters by public agencies. The following 13 states expressly permit discussion of salary in secret executive sessions in their open meetings/sunshine acts.
Arizona: A public body may consider in closed executive session any "discussion or consideration of employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee or employee of any public body, except that, with the exception of salary discussions, an officer, appointee or employee may demand that such discussion or consideration occur at a public meeting." Ariz. Rev. Stat. §§ 38-431.03.A.1.
Colorado: "All meetings held by members of a state public body subject to this part 4 to consider the appointment or employment of a public official or employee or the dismissal, discipline, promotion, demotion, or compensation of, or the investigation of charges or complaints against, a public official or employee shall be open to the public unless said applicant, official, or employee requests an executive session." Colo. Rev. Stat. § 24-6-402(3)(b).
Georgia: "Meetings when discussing or deliberating upon the appointment, employment, compensation, hiring, disciplinary action or dismissal, or periodic evaluation or rating of a public officer or employee
. . . ." Ga. Code § 50-14-3(6).
Illinois: "The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body, including hearing testimony on a complaint lodged against an employee to determine its validity." § 5 Ill. Code Serv. 120/2(c)(1).
Maine: Discussion or consideration of the employment, appointment, assignment, duties, promotion, demotion, compensation, evaluation, disciplining, resignation or dismissal of an individual or group of public officials, appointees or employees of the body or agency under limited conditions. 1 Maine Rev. Stat. § 405-6(A)(1).
Maryland: Meetings that concern the appointment, employment, assignment, promotion, discipline, demotion, compensation, removal, resignation, or performance evaluation of appointees, employees or officials over whom the entity has jurisdiction or any other personnel matter affecting one or more specific individuals may be closed. Md. Rev. Stat. § 10-508(a)(1).
New Hampshire: The dismissal, promotion or compensation of any public employee or the disciplining of such employee, or the investigation of any charges against him, unless the employee affected (1) has a right to a meeting and (2) requests that the meeting be open, in which case the request shall be granted. N.H. Rev. Stat. § 91:A-3,II.(a).
New Jersey: "Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body . . . ." N.J. Rev. Stat. § 10:4-14(b)(8).
Ohio: The statute permits executive sessions to consider the appointment, employment, dismissal, discipline, promotion, demotion, or compensation of a public employee or official. Ohio Rev. Code § 121.22(G)(1).
South Carolina: Boards may hold executive sessions to discuss of employment, appointment, compensation, promotion, demotion, discipline, or release of an employee, a student, or a person regulated by a public body or the appointment of a person to a public body." S.C. Code § 30-5-70(a)(1).
Virginia: Public bodies may hold closed meetings only for discussion consideration or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining or resignation of specific public officers, appointees or employees of any public body. Va. Code § 2.1-344(1)(a).
West Virginia: The appointment, employment, retirement, promotion, demotion, disciplining, resignation, discharge, dismissal or compensation of any public officer or employee, or other personnel matters, or for the purpose of conducting a hearing on a complaint against a public officer or employee may be conducted in executive session. W. Va. Code. § 6-9A-4.
Wisconsin: Executive session is permitted to consider employment, promotion, compensation or performance evaluation data of a public employee. Wis. Stat. § 19.85(1).
Had the Hawai‘i Legislature desired, it could have done what these other states did, and expressly include "compensation", "salary" or "terms and conditions of employment," within the express exceptions of § 92-5, Haw. Rev. Stat. Under the doctrine of expressio unius est exclusio alterius, the creation of a limited express exemption suggests that a broader implied exemption could not have been intended.
When an act lists things to which it refers, the court may infer that any omissions were intended as exclusions. Bank of Waukegan v. Kischer, 246 Ill. App. 3d 616, 620 (1993).
In the grant of authority for secret meetings, and in the regulation of the mode of exercise of that authority, there is an implied negative: an implication that no other than the expressly granted power passes by the grant and that it is to be exercised only in the prescribed mode. Wildlife Alive v. Chickering, 18 Cal. 3d 190, 196, 553 P.2d 537, 540, 132 Cal. Rptr. 377 (1976), quoting, Martello v. Superior Court 202 Cal. 400, 405, 261 P. 476 (1927); Morse v. Municipal Court, 13 Cal.3d 149, 159, 529 P.2d 46, 52, 118 Cal.Rptr. 14 (1974). Accordingly, the express exemption for decisions to "hire" implies a rejection of other exemptions not expressly granted. By not including those other terms, including "salary," "compensation" or "terms and conditions of employment," the Legislature opted for the majority position, mandating public meetings for salary decisions, permitting secret meetings only for the decision to "hire."
2. The February 23, 2001, Agenda Violates § 92-7(a), Haw. Rev. Stat.
By stating that their meeting on February 23, 2001, was to consider matters "related to appointments and evaluations of employees," the Regents not only failed to advise the public that they would be considering the president’s salary, they failed to comply with § 92-7(1):
§92-7 Notice. (a) The board shall give written public notice of any regular, special, or rescheduled meeting, or any executive meeting when anticipated in advance. The notice shall include an agenda which lists all of the items to be considered at the forthcoming meeting, the date, time, and place of the meeting, and in the case of an executive meeting the purpose shall be stated.
Attorney General Opinion 85-2 leaves no doubt that the specific subject matter of each agenda item must be disclosed and that general non-descriptive references do not give sufficient disclosure to satisfy the Open Meetings Law’s disclosure requirements. Rejecting the board’s contention that "Unfinished Business" and similar references were sufficient to satisfy the statute, the Attorney General stated:
[W]e believe that the Sunshine Law requires the Commission to list on its agendas all of the specific "items" or "matters" that will be discussed . . . . It is our opinion that it is not sufficient to list broad categories of items on the agendas, and that general phrases, such as "Unfinished Business" and "New Business", will not comply with the Sunshine Law.
Atty. Gen. Op. 85-2 at 3 (Feb. 4, 1985). Exhibit 6 to Declaration of Carl M. Varady. Obviously, generalities, like that employed by the Regents, are likely to mislead the public in a manner the Open Meetings Law is intended to prohibit. Id. Language used in agendas should be "simple, direct and comprehensible to a person of ordinary education and intelligence." Haworth Bd. of Education v. Havens, 637 P.2d 902, 904 (Okla. App. 1981). In Haworth, the court voided the appointment of a school administrator, holding general references to "discussion" and "interview" of administrator were insufficient to give the public notice and an opportunity to participate required by Oklahoma’s open meetings law. Id. As in Haworth, the proper remedy specified in the statute is to void any decision made at a meeting preceded by such an unlawful agenda. § 92-11, Haw. Rev. Stat.
3. The Regents Again Violated Chapter 92 on April 20, 2001.
When, on April 20, 2001, the Regents were asked to place the president’s salary on the agenda and discuss it at their May 18, 2001, public meeting, the Regents adjourned to consider the matter in secret. Verified Complaint ¶¶ 34-36. They announced their decision to reject the request after reconvening the public meeting. Id. The decision, which added insult to the statutory injury, was a direct violation of the rule requiring a two-thirds vote prior to meeting in secret, § 92-4, Haw. Rev. Stat. There is no excuse for this disregard for the statute’s mandates.
There is great practical meaning achieved by setting aside this decision, consistent with the rule of § 92-11, Haw. Rev. Stat., because it will nullify conduct that the Legislature has determined is unlawful and encourage the Regents in their future conduct to conform their actions to the rule of law, rather than operate on the basis of convenience, habit, custom or whim.
4. The Regents’ Decisions Were "Wilful".
Section 92-11, Haw. Rev. Stat., creates a private right of action for violations of the Open Meetings Law, and provides that attorneys’ fees are to be awarded upon proof of a violation. The section creates additional remedies, and states actions taken in violation of the Law are voidable upon proof of "wilful violation." "Wilful" is not defined. In Haworth Bd. of Education v. Havens, 637 P.2d 902 (Okla. App. 1981), the court voided the Board’s decision to hire an administrator, holding that its decision hire an administrator violated the notice requirements of the Oklahoma open meetings act and that such action was not accidental, but "wilful." Id. at 904. Similarly, the Regents’ February 23, 2001, agenda, salary decision and April 20, 2001, decision not to discuss the salary issue at a public meeting are "wilful" and voidable. Haworth has been cited for this very proposition by Hawaii’s Attorney General. Atty. Gen. Op. 85-2 at 3.
Support for this conclusion also is drawn from Kansas v. Palmgren, 231 Kan. 524, 646 P.2d 1092, appeal dismissed, 459 U.S.1081 (1982). Construing the Kansas Open Meetings Law, the Kansas Supreme Court observed that Kansas’s Law is a remedial statute, subject to broad construction to carry out its purposes–identical purposes to those of Hawaii’s statute. The Kansas Court equated "knowing" violations and "wilful" violations, and concluded that the law did not require actual knowledge of wrongdoing or that the act was unlawful, but merely conduct that was not accidental. Id., 231 Kan. at 537, 646 P.2d 1101; accord, Suburban Hospital, Inc. v. Maryland Health Resources Planning Comm’n., 125 Md. App. 579, 596, 726 A.2d 807, 815 (1999)(remedial purpose of open meetings act directs court to conclude "wilful" did not require public body to have express knowledge of statutory violation). The same remedial purposes present in Hawaii’s Open Meetings Law compel a similar conclusion. As one court aptly explained:
If we were to permit the board's action to stand on the basis of good intention, such a rule would become an invitation, perhaps a license, for a public body to circumvent the Public Meetings Laws' limited exemptions by an additional criterion of good faith or good intention in adjournment to a closed session. We hold that in civil actions good faith or good intention on the part of the public body is irrelevant to the question of compliance with the provisions of the Public Meetings Laws authorizing a closed session.
Grien v. Board of Education, 216 Neb. 158, 167, 343 N.W.2d 718, 724 (1984).
B. Irreparable Harm is Suffered by Plaintiffs and the Public Interest Favors Declaratory and Injunctive Relief.
Various courts have found that violations of the Open Meetings Law constitute irreparable harm. E.g., Palm Beach v. Gadison, 296 So. 2d 473, 477 (Fla. 1974); Independent School Dist. v. Board of County Commissioners, 674 P.2d 547, (Okla. 1983); WTAR Radio-TV Corp. v. Virginia Beach, 216 Va. 892, 894, 223 S.E.2d 895, 898 (1976).
Granting injunctive relief preventing a public board from holding an executive meeting, a Pennsylvania appellate court succinctly and eloquently explained the irreparable harm that results when an public committees attempt to avoid state open meetings requirements by meeting secretly:
Here, there is no question that Common Pleas' entry of the preliminary injunctions was necessary to prevent immediate and irreparable harm. Because Appellants were undertaking "official action," their meetings were required to be open to the public. To the extent that the deliberations were closed, the public was harmed by a denial of the opportunity to witness the decisions being made by these very important local agencies in the public interest. Further, such harm could not be compensated for by damages, since there is no price tag that can be placed on the public's trust in the agencies empowered to aid it and on the public's evaluation of the decision-making process.
The Patriot-News Co. v. The Empowerment Team of the Harrisburg School Dist., 763 A.2d 539, 547 (Cmwlth. Ct. 2000)(emphasis added). The strong legislative public policy underlying the Hawai‘i Open Meetings Law would suffer identical injury unless an injunction issues here. The public interest clearly favors injunctive relief.
The inconvenience to the Board that might result from public discussion of the president’s salary cannot be considered "harm" that would overcome legislative policy and values protected by the Open Meetings Law.
C. The Regents Must Give Meaningful Consideration to the President’s Salary at any Subsequent Meeting.
When a public agency does not observe the requirements of open meetings laws, the only "cure" is full and independent reexamination of the issue at a subsequent public meeting. For this "cure" to be effective, however, the subsequent decision making cannot be "merely ceremonial acceptance of prior secret action" or a "perfunctory ratification of secret decisions at a later meeting open to the public." Zorc v. Vero Beach, 722 So. 2d 891, 903 (Fla. App., 4th Dist. 1998); Tolar v. School Bd. of Liberty County, 398 So. 2d 427, 429 (Fla. 1981); Scott v. Bloomfield, 94 N.J. Super. 592, 600, 229 A.2d 667, 671 (1967)("perfunctory rerun" of prior unlawful meeting does not cure violation of Sunshine Law); McComas v. Board of Education of Fayette County, 197 W. Va. 188, 202, 475 S.E.2d 280, 294 (1996)(meeting is perfunctory and does not cure sunshine act violations where there is no discussion or analysis of issues and no recounting of prior decision).
If the Regents are to cure the unlawful conduct, they must engage in significant discourse and consideration of views. If it is evident from the record that the any subsequent meeting does not include a full reexamination of the issues, but rather, was merely a perfunctory acceptance of the prior decision, the prior unlawful conduct is not cured. Zorc, 722 So. 2d at 903 -04. When determining whether an open meetings act violation has been cured, courts recognize that a narrow interpretation of the law would "invite avoidance tactics" and, therefore, "courts should push its coverage beyond debatable limits in order to block evasive techniques." Sacramento Newspaper Guild v. Sacramento Bd. of Supervisors, 263 Cal. App. 2d 41, 50, 69 Cal. Rptr. 480, 487 (1968).
To avoid the consequences of such evasion and the future misconduct it would invite, Plaintiffs ask the Court to order the Regents, as part of the overall relief, to fully consider the matter of the president’s salary, giving heed to all views, before finally voting on the matter at a public meeting.
IV. CONCLUSION.
For the reasons stated herein, Plaintiffs’ respectfully request that the relief requested in their motion be GRANTED.
DATED: Honolulu, Hawai‘i, April 26, 2001.
CARL M. VARADY
Attorney for Plaintiffs
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.
Civil No. 01-1-1262-04
(Other Civil Action)
NOTICE OF MOTION
NOTICE OF MOTION
TO: WALTER KIRIMITSU, ESQ.
University Counsel
University of Hawai‘i
2515 Dole Street, Law 203
Honolulu, Hawai‘i 96822
NOTICE IS HEREBY GIVEN, that the Plaintiff’s Motion for Temporary Restraining Order, shall be heard before the Honorable , of the above-entitled court, in her/his courtroom located at the Kaahumanu Hale, 777 Punchbowl Street, Honolulu, Hawai‘i, at m. on , , or as soon thereafter as the matter be heard.
DATED: Honolulu, Hawai‘i, April , 2001.
CARL M. VARADY
Attorney for Plaintiffs
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.
Civil No. 01-1-1262-04
(Other Civil Action)
DECLARATION OF CARL M. VARADY
DECLARATION OF CARL M. VARADY
Pursuant to Rule 7(g), Rules of the Circuit Courts, Carl M. Varady, hereby declares the following:
CERTIFICATE OF SERVICE
I certify that a copy of the attached document was served by hand delivery on the date indicated below, addressed to:
WALTER KIRIMITSU, ESQ.
University Counsel
University of Hawai‘i
2515 Dole Street, Law 203
Honolulu, Hawai‘i 96822
DATED: Honolulu, Hawai‘i, April 26, 2001.
TABLE OF CONTENTS
I. INTRODUCTION. -1-
II. FACTS. -2-
III. A TEMPORARY INJUNCTION SHOULD ISSUE. -5-
A. Likelihood of Success on the Merits or Sufficiently Serious Questions Going to the Merits Make Plaintiff’s Claims Fair Ground for Injunctive Relief. -6-
1. Serious Questions Going to the Merits Are Raised by the Regents’ Refusal to Discuss the President’s Salary at a Public Meeting.
-6-a. The policies underlying Hawaii’s Open Meetings Law strongly favor Plaintiff’s position that the president’s salary must be discussed publicly. -6-
b. Chapter 92's language sets forth rules of construction that clearly favor Plaintiffs’ position.
-11-c. General principles of construction favor Plaintiffs’ Open Meeting request. -12-
d. That decisions concerning salary are distinct from the Regents’ decision to "hire" is supported by reference to other law.
-12-2. The February 23, 2001, Agenda Violates § 92-7(a), Haw. Rev. Stat.
-15-3. The Regents Again Violated Chapter 92 on April 20, 2001. -16-
4. The Regents’ Decisions Were "Wilful". -17-
B. Irreparable Harm is Suffered by Plaintiffs and the Public Interest Favors Declaratory and Injunctive Relief. -18-
C. The Regents Must Give Meaningful Consideration to the President’s Salary at any Subsequent Meeting. -19-
IV. CONCLUSION. -20-
TABLE OF AUTHORITIES
CASES
Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir. 1988) -5-
Amantiad v. Odum, 90 Hawai’i 152, 977 P.2d 160 (1999) -11-
Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975) -8-
Bank of Waukegan v. Kischer, 246 Ill. App. 3d 616 (1993) -15-
Board of Education, 111 Mich.App. 798, 314 N.W.2d 760 (1982) -8-
Board of Trustees v. Mississippi Publishers’ Assn., 478 So. 2d 269 (1985) -8-, -10-
Carl v. Board of Regents of University of Oklahoma, 577 P.2d 912 (Okla. 1978) -8-
Courier-Journal & Louisville Times Co. v. University of Louisville Board of Trustees, 596 S.W.2d 374 (Ky.1980) -8-
Flores v. United Air Lines, 70 Hawai’i 1, 12, 757 P.2d 641 (1988) -12-
Greene v. Athletic Council of Iowa State University, 251 N.W.2d 559 (Iowa 1977) -8-
Grien v. Board of Education, 216 Neb. 158, 343 N.W.2d 718 (1984) -18-
Haworth Bd. of Education v. Havens, 637 P.2d 902 (Okla. App. 1981) -16-, -17-
Holden v. Board of Trustees of Cornell University, 80 App.Div.2d 378, 440 N.Y.S.2d 58 (3d Dept. 1981) -8-
In re Water Use Permit Applications, 94 Hawai’i 97, 144, 9 P.3d 409 (2000) -11-
Independent School Dist. v. Board of County Commissioners, 674 P.2d 547, (Okla. 1983) -18-
International Savings and Loan Association v. Wiig, 82 Hawai’i 197, 921 P.2d 117, (1996) -11-
J.B v. Killingly Board of Education, 990 F. Supp. 57 (D. Conn. 1997) -5-
Jackson Dairy, Inc. v. H.P. Hood & Sons Inc., 596 F.2d 70 (2d Cir. 1979) -5-
Kaapu v. Aloha Tower Development Corp., 74 Haw. 365, 846 P.2d 882 (1993) -7-
Kahana Sunset Owners, Assn. v. Maui County Council, 86 Haw. 132, 948 P.2d 122 (1997) -7-
Kansas v. Palmgren, 231 Kan. 524, 646 P.2d 1092, appeal dismissed, 459 U.S.1081 (1982) -17-
Klausmeyer v. Makaha V.F., Ltd., 41 Haw. 287 (1956) -6-
Lexington Herald-Leader Co. v. University of Kentucky Presidential Search Committee, 732. S.W.2d 884 (1987) -8-
Life of the Land v. Ariyoshi, 59 Haw. 156 (1978) -5-
Martello v. Superior Court 202 Cal. 400, 261 P. 476 (1927) -15-
McComas v. Board of Education of Fayette County, 197 W. Va. 188, 475 S.E.2d 280 (1996) -19-
Morse v. Municipal Court, 13 Cal.3d 149, 529 P.2d 46,118 Cal.Rptr. 14 (1974) -15-
Painting Industry of Hawaii Market Development Fund v. Alm, 69 Haw. 449, 746 P. 2d 79 (1987) -7-
Palm Beach v. Gadison, 296 So. 2d 473 (Fla. 1974) -18-
Penn v. Transportation Hawaii Lease, Ltd., 2 Haw. App. 272, 630 P.2d 646 (Ct. App. 1981) -6-
People ex rel. Byron v. Board of Trustees of Southern Illinois University, 90 Ill. App. 3d 88, 412 N.E.2d 1188, 45 Ill. Dec. 606 (1980) -8-
Phillips v. Board of Supervisors of Louisiana State University, 391 So.2d 1217 (La.App. 1st.Cir.1980) -8-
Rosenberg v. Arizona Board of Regents, 118 Ariz. 489, 578 P.2d 168 (1978) -8-
Sacramento Newspaper Guild v. Sacramento Bd. of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968) -20-
Scott v. Bloomfield, 94 N.J. Super. 592, 229 A.2d 667 (1967) -19-
Suburban Hospital, Inc. v. Maryland Health Resources Planning Comm’n., 125 Md. App. 579,726 A.2d 807 (1999) -17-
Taylor v. Government Employees Insurance Company, 90 Hawai’i 302, 978 P.2d 740 (1999) -12-
The Patriot-News Co. v. The Empowerment Team of the Harrisburg School Dist., 763 A.2d 539 (Cmwlth. Ct. 2000) -19-
Tolar v. School Bd. of Liberty County, 398 So. 2d 427 (Fla. 1981) -19-
Topanga Press v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993) -5-
Tribune Publishing Co. v. Curators of the University at Missouri, 661 S.W.2d 575 (Mo.App.1984) -8-
University of Alaska v. Geistauts, 666 P.2d 424 (Alaska 1983) -8-
Wildlife Alive v. Chickering, 18 Cal. 3d 190, 553 P.2d
537, 132 Cal. Rptr. 377 (1976)
-15-
WTAR Radio-TV Corp. v. Virginia Beach, 216 Va. 892, 223 S.E.2d 895 (1976) -18-
Zorc v. Vero Beach, 722 So. 2d 891 (Fla. App., 4th Dist. 1998) -19-
Statutes
Hawai‘i
§ 1-14, Haw. Rev. Stat. -12-
§ 1-16, Haw. Rev. Stat. -12-
§ 26-52(2), Haw. Rev. Stat. -12-
§ 92-1, Haw. Rev. Stat. -7-
§ 92-2, Haw. Rev. Stat. -1--3-
§ 92-3, Haw. Rev. Stat. -5-
§ 92-3, Haw. Rev. Stat. -7-, -11-
§ 92-4, Haw. Rev. Stat. -3-
§ 92-5, Haw. Rev. Stat -3-, -15-
§ 92-7 (a), Haw. Rev. Stat. -4-
§ 92-7, Haw. Rev. Stat. -2-, -5-, -15-
§ 92-11, Haw. Rev. Stat. -4-, -16-, -17-
§ 92-12(d), Haw. Rev. Stat. -5-
Federal
5 U.S.C. § 552(b) -8-
Other States
Ariz. Rev. Stat. §§ 38-431.03.A.1 -13-
Colo. Rev. Stat. § 24-6-402(3)(b) -13-
Ga. Code § 50-14-3(6) -13-
§ 5 Ill. Code Serv. 120/2(c)(1) -13-
Md. Rev. Stat. § 10-508(a)(1) -14-
Maine Rev. Stat. § 405-6(A)(1) -14-
N.H. Rev. Stat. § 91:A-3,II.(a) -14-
N.J. Rev. Stat. § 10:4-14(b)(8) -14-
Ohio Rev. Code § 121.22(G)(1) -14-
S.C. Code § 30-5-70(a)(1) -14-
Va. Code § 2.1-344(1)(a) -14-
W. Va. Code. § 6-9A-4 -15-
Wis. Stat. § 19.85(1) -15
Attorney General Opinions
Atty. Gen. Op. 75-11 (Sept. 30, 1975) -11-
Atty. Gen. Op. 85-2 (Feb. 4, 1985) -8-, -16-
Secondary Authorities
C. Davis, Sunshine Laws & Judicial Discretion: A Proposal for Reform of State Sunshine Law Enforcement Provisions, 28 Urban Lawyer 41 (Winter 1996) -9-, -10-
N. Singer, 3 Sutherland, Statutes and Statutory Construction § 60.02 (4th ed. 1986) -12-
Sen. Rep. No. 94-354 -8-, -9-
The Writings of James Madison 103 (Hunt. ed. 1910) -1-
News release on chapter’s lawsuit against the University of Hawaii Board of Regents
To: All media
Contacts: Carl M. Varady, 523-8447; Stirling Morita, Hawaii chapter, Society of Professional Journalists, 529-4755; Larry Meacham, Common Cause Hawaii, 533-6996 or 737-6777; Mamo Kim, 956-8776
Date: April 20, 2001
Hawaii Journalists, Common Cause and Student Challenge Secret Decision on University President’s Salary
The Hawaii chapter of the Society of Professional Journalists, Common Cause Hawaii and Mamo Kim, a graduate student leader at the University of Hawaii, today filed suit charging that the secret decision made by the University Board of Regents to dramatically increase the University president’s salary violates the state’s open meetings law. The regents apparently made the decision in secret at executive session without public input, discussion or oversight. The lawsuit seeks to have the decision voided and put on an agenda for public testimony and comment at a meeting of the board.
At today’s Board of Regents’ meeting, the regents were informed by students that the secret decision violates the open meetings law and were asked to place the matter on the agenda for their next regular meeting. The regents adjourned to a secret executive session without first voting to do so as required by HRS 92-4, and returned to announce they refused to agree to put the matter on the agenda at the next public meeting.
"My clients believe that the regents should have made the decision regarding the extraordinary pay increase a public meeting, consistent with the policies expressed in Chapter 92-1, Hawaii Revised Statutes, because this issue of an extraordinary increase in the president’s salary was one of reasonably major importance," said attorney Carl Varady, who represents the plaintiffs. "By making this decision at a nonpublic meeting, the Board of Regents prevented students, faculty, reporters and members of the public from observing, submitting views or arguments concerning an important decision on a matter of public importance. A secret process destroys the public’s confidence and their right to know how the decision was made."
The statute states that meetings of public boards, like the regents, are to be held in public with opportunities to observe and testify. The statute says: "Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest. It is the express policy of this state that the formation and conduct of public policy – the discussions, deliberations, and actions of governmental agencies – shall be conducted as openly as possible."
Stirling Morita for the Hawaii chapter, Society of Professional Journalists, commented, "The journalists understand that the board ultimately must decide this matter and is fully empowered by statute to do so. Nothing asserted in this lawsuit seeks to limit this authority. We merely want to know how and why the decision was made and see that it is reached through a process that includes the public deliberation contemplated by law."
Mamo Kim, a graduate student at the University of Hawaii, explained the students’ concerns, stating: "The university and the regents have been cited by the accrediting agency, Western Association of Schools and Colleges for poor management and governance – especially lack of effective communication with the public and students. We think the salary, paid with public money, to the president of a public university carries with it the responsibility to provide full information regarding the decision-making process and the opportunity for expression and consideration of students’ and public views on the matter. In Hawaii, this is the express law and policy of the state and we asked the regents today to conform their actions to that law and policy. Unfortunately, they refused and we now must go to court to enforce what the open meetings act requires."
Kim expressed further concern that the refusal to discuss the matter in an open meeting reflected continued disregard by the regents of WASC criticisms, and fear that such conduct may lead to sanctions by the accreditation body. Kim also said today’s refusal to discuss the salary decision publicly confirmed students’ objections to the regents’ preference for secretive and exclusive decision-making were valid.
The suit does not seek to determine the level of pay for the president. The plaintiffs acknowledge the regents’ authority to make this determination. The suit seeks only to have a public meeting at which the decision is discussed, testimony is heard and members of the public are allowed to observe and participate consistent with the policy statement of Chapter 92 that: Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.
Law Offices of Carl M. Varady
Carl M. Varady 4873
Pacific Tower
1001 Bishop Street
Suite 2870
Honolulu, Hawai‘i 96813
Telephone: 808 523-8448
Attorney for Plaintiffs
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS, COMMON CAUSE HAWAI‘I , and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.
Civil No.
(Declaratory Judgment)
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; SUMMONS
VERIFIED COMPLAINT
Plaintiffs, HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS, COMMON CAUSE HAWAI‘I and MAMO KIM, hereby allege the following:
PARTIES
- Plaintiff Hawai‘i Society of Professional Journalists ("HSPJ") is a membership organization whose members are professional journalists who live and work in, Honolulu, Hawai‘i.
- Plaintiff Common Cause Hawai‘i is a membership organization whose members seek to ensure open government and compliance with state law guaranteeing public participation in the political process and meetings by public boards.
- Plaintiff Mamo Kim is a graduate student who lives in Honolulu, Hawai‘i, and attends the University of Hawai‘i.
- Defendant University of Hawai‘i is a corporate body of higher education located and doing business in Honolulu, Hawai‘i, and other locations in Hawai‘i.
- Defendant Lily K. Yao is a resident of Honolulu, Hawai‘i, and chair of the University of Hawai‘i Board of Regents.
- Defendant Doe Entities 1-10 were employed by or acting on behalf of or in concert the University of Hawai‘i and/or the individual named defendants at the time the events forming the basis of Plaintiffs’ claims took place and contributed to the injuries alleged herein. The names of the Doe defendants are not yet known, but plaintiff is exercising due diligence to determine their identities promptly through discovery. When they have been identified, plaintiff promptly will amend his complaint to reflect their actual identities.
GENERAL ALLEGATIONS
FIRST CLAIM FOR RELIEF
DATED: Honolulu, Hawai‘i, April , 2001.
CARL M. VARADY
Attorney for Plaintiffs
I verify and declare under penalty of law that the foregoing is true and correct.
MAMO KIM
IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT
STATE OF HAWAI‘I
HAWAI‘I SOCIETY OF PROFESSIONAL JOURNALISTS, COMMON CAUSE HAWAI‘I , and MAMO KIM,
Plaintiffs,
vs.
UNIVERSITY OF HAWAI‘I, LILY K. YAO, in her official capacity as CHAIR OF THE UNIVERSITY OF HAWAI‘I BOARD OF REGENTS and DOE ENTITIES 1-10,
Defendants.