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Hours before soon-to-be-former Honolulu City Council Chair Nestor Garcia announced his plan to step down, numerous council members seemed to be well aware of the impending change.

How did those members learn about the plan if the requires six days of advance notice before any public meeting with more than two members of the City Council?

Civil Beat broke the story around 9:30 a.m. and Garcia held a press conference at 2 p.m.

The state’s open meetings law applies not only to what most people would consider actual “meetings” but also to communications between public officials that attempt to circumvent the purpose of the law. That was made clear six years ago when a previous City Council shake-up was organized through a series of one-on-one meetings and ran up against the Sunshine Law.

In [pdf] sent to then-City Council Chair (and current Hawaii senator) Donovan Dela Cruz in August 2005, then-Office of Information Practices Director (and current Hawaii Ethics Commission Executive Director) Les Kondo said, “Such serial communication is contrary to the letter, the intent and the spirit of the statute.”

In that 2005 case, seven council members had co-introduced a resolution reorganizing the chairmanships of multiple committees. Kondo explained that by asking other council members to co-introduce a resolution, the author “essentially polled the other council members as to their preliminary inclinations.” (That approach wasn’t duplicated this time around. Resolution 11-178 was filed Wednesday by Garcia with no other signatures on it. A hard copy was obtained by Civil Beat from the Office of the City Clerk.)

The Sunshine Law includes some exemptions.¹ Months before the 2005 City Council re-organization, the Hawaii Legislature tweaked the language of to allow for discussions between two board or council members regarding official business — as long as no final decisions are made.

Kondo said that applying that exemption to a series of one-on-one conversations would be problematic because the council later approved the resolution “without any substantive discussion or deliberation, giving the public no understanding of, for instance, the reasons for the reorganization.”

“The Council thus simply ‘rubber stamped’ a decision that had obviously been made prior to the meeting through private one-on-one discussions,” Kondo wrote. “It is our opinion that your discussions with other council members about the reorganization violated the Sunshine Law because it deprived the public of its right to hear the Council’s discussion.”

The opinion was sent to Dela Cruz, but the eight other council members were copied. One of them was Garcia. Just two others remain on the council today: Ann Kobayashi and Romy Cachola.

Kobayashi and Cachola each expressed support for a reorganization Wednesday morning, telling Civil Beat they’d likely vote in favor of installing Ernie Martin as council chair. But both were careful to avoid revealing how they’d come to be aware of the coup.

“That’s always the question, and it’s part of why a lot of us say we don’t know exactly what’s going on,” Kobayashi told Civil Beat. “We do it by circulating a resolution, and if you don’t support it, you don’t sign onto it. It’s not like over at the Legislature where those guys can go into a closed room and have a meeting.”

Unless someone steps forward to volunteer that they violated the Sunshine Law — or unless there’s a paper trail of a series of written or electronic one-on-one communications — it’ll be hard to prove a violation of the Sunshine Law took place.

Garcia’s insistence that the shake-up was his idea and his idea alone gives his colleagues a cover story.

Despite the attempts to be careful not to violate the Sunshine Law, the question remains whether a violation took place.

Ikaika Anderson, who would become council vice chair if the resolution is approved as written, told Civil Beat Wednesday he had a conversation with Garcia about the reorganization.

“He’s comfortable with moving forward,” Anderson said. “Nestor Garcia has told me that he’s committed to seeing the council move forward in the best interest of the taxpayers of Honolulu.”

At his press conference, Garcia in turn said he’d had a conversation with Martin about 30 minutes earlier.

Those two discussions alone could constitute a violation of the law — oddly enough, by the man who’s being ousted and not any of the possible conspirators.

It’s hard to believe that would be enough to put the proposal in jeopardy if the majority of the council is ready for a change in leadership, but it might mean the public isn’t going to get any further explanation for the ouster from members at the council’s next public meeting, where the vote will be held to install new leadership.