This week, the Honolulu City Council debated and ultimately voted to release two legal opinions about a controversial hotel zoning bill. That discussion, which led to the unprecedented disclosure move, illuminated why these opinions should be made public as a general rule, allowing for sensible exceptions.
The opinions involved Bill 16, a proposal to ban hotel-room conversions to condominium units, or make them more difficult for property owners and developers, a measure favored by Unite HERELocal 5 because of concerns about reduced hotel jobs.
Leaders of that hotel workers union were upset when City Councilwoman Carol Fukunaga, who chairs the Council’s Committee on Public Safety and Economic Development, decided to shelve the bill. The union’s political action committee backed Joli Tokusato to challenge Fukunaga’s re-election; Tokusato did not make the cut for the run-off in the general election, but the issue remains alive in the campaign.
Fukunaga has said her decision was based on the legal opinions provided by attorneys with the city Department of Corporation Counsel, but could not release them because the Council attorney-client privilege applied and disclosure would need a vote.
That vote, 8-1, happened on Wednesday, and the Council was free to go public with the explanation for killing the bill. City attorneys had told the Council in the written opinions that the bill was flawed and called for action outside the Council’s jurisdiction.
Political opponents have said this hasn’t erased their displeasure with the handling of the bill, but clearly the release of the opinions at this juncture helps Fukunaga make her case to the voters.
Breene Harimoto was right when he noted the Council did her a service with the vote, and now has set a precedent for making similar allowances — or withholding them — based on political favoritism.
However, the way to remove that awkward element from matters of public disclosure is not to vote against release of this important critique but to change the way the Council handles legal opinions going forward.
The Council should start with the assumption that legal opinions are public unless, for personnel matters or other sensitive issues, it votes to invoke its client privilege. It should do so when the opinions are received, which would lessen the chance that decisions are made in the throes of campaign season.
This should reduce Harimoto’s concern that the Council might be "caught up in playing politics."
The quandary over legal opinions extends to the full spectrum of government agencies, of course, not just this Council.
Another recent example: The state Ethics Commission invoked attorney-client privilege for an opinion by the state attorney general over the application of a new law on financial disclosures by members of public boards and commissions.
Openness should increasingly become the watchword of government agencies, and the City Council would be the right venue to start. The opinions of city attorneys often provide important analysis about pending changes in law or policy that the public should hear, gaining better understanding of decisions by the people they elect.
