This is a story about power.
Since 1975, the State of Hawaii has lived under something called Chapter 92 of the Hawaii Revised Statutes. Sometimes called the state’s “ppen meetings law” or more colloquially the “Sunshine Law,” the first sentences of that legal framework that govern those who govern us is surprisingly clear about who (ideally) runs the show.
“In a democracy, the people are vested with the ultimate decision-making power,” states the law. “Governmental agencies exist to aid the people in the formation and conduct of public policy.”
As such, the law sets out a series of constraints on public officials to make sure that the people remain in charge.
“Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest,” states the Sunshine Law. “Therefore, the legislature declares that it is the 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.”
As I’ve detailed on a few previous occasions, numerous current and former Maui County Council members views the Sunshine Law with feelings ranging from muttered disagreement to contemptuous disdain. And why not? The law restricts them from getting together in groups comprising a quorum without officially sending out notices to the public, posting an agenda, keeping minutes, etc. In other words, it prevents them from meeting and deciding the public’s business in secret.
For the last decade, assorted Maui County Council members have bad-mouthed the Sunshine Law, skirted it and openly lobbied for legislation that would emasculate or kill it. In 2005, Riki Hokama said the law “detracts from the effectiveness of county councils in carrying out their legislative responsibilities.” In early 2012, Council members Danny Mateo, Joseph Pontanilla, Bob Carroll and Mike White all wrote letters of support for a bill that would have exempted county councils from the Sunshine Law, stating that the law “unjustifiably interfere with the important legislative work of the County Council.” In the summer of 2013, the Hawaii Supreme Court even smacked down the Maui County Council (and the council’s Land Use Committee) for violating the Sunshine Law in 2007 and 2008 in its deliberations over the proposed Honua‘ula (Wailea 670) project.
To no one’s surprise, they’re at it again. Thanks to Maui’s own Kyle Yamashita, D–Upcountry, we have HB 2139 HD1, a new bill that takes a new approach by just chipping away at the Sunshine Law. The bill would alter the Open Meetings act to allow an “unlimited number” of city or county council members to attend various meetings and/or presentations, without the need for pesky things like meeting notices or agendas.
The bill text states that “members of a county council” should be able to “attend an informational meeting or presentation on matters relating to official board business, including a meeting of another entity, legislative hearing, convention, seminar, or community meeting,” as long as said meeting is held in Hawaii, free and open to the public and not organized specifically for the county council members.
To be fair, this seems entirely reasonable. In fact, in her two letters of support for the bill (to the House Judiciary Committee on Feb. 13 and the Senate Committee on Public Safety, Intergovernmental and Military Affairs on Mar. 10), Maui County Council chairwoman Gladys Baisa–who said that Yamashita introduced the bill at her request–made the case that the bill would actually make council members more responsive to the community.
“Open participation in informational meetings or presentations by elected officials will increase transparency and help to ensure responsiveness of council members to the public they serve,” Baisa wrote in her Feb. 13 written testimony.
A month later, she offered even more support for the bill.
“The purpose of this measure was originally to increase interaction between elected officials and the public and to broaden access to educational opportunities as they arise,” she wrote in her Mar. 10 letter. “Open participation in informational meetings or presentations by elected officials will increase transparency and help to ensure responsiveness of council members to the public they serve.”
Still, Baisa did have some concerns with the bill, which had been amended since her previous letter.
“[T]he measure is counterproductive in limiting attendance opportunities to meetings or presentations that are held in Hawaii and free to the public,” she wrote. “These aspects of the measure reduce, rather than enhance, a council member’s responsiveness to constituents and opportunities for education and outreach.”
Maui County Councilmembers Carroll, Stacy Helm Crivello and Mike Victorino also submitted brief statements saying they supported the bill, as did Maui County Mayor Alan Arakawa.
“Elected ofﬁcials are responsible for ﬁnding out how people in their communities feel about policy issues, to gather facts, and to educate themselves on the many issues that impact their communities,” Arakawa wrote in a Feb. 13 letter of support to the House Judiciary Committee. “Allowing county councilmembers to attend informational meetings or presentations can help them gather facts and educate themselves while ensuring their responsiveness to the public they serve.”
Isn’t this what we want? County Council members going to all sorts of free and open public meetings and forums, joining discussions and raising issues?
Even with the stipulations that council members can only attend “free” meetings that are “open to the public” in the state, the bill still does serious damage to the state’s current Open Meetings Law. Remember, the Sunshine Law really serves two purposes–it gives power to the public, but it also restricts the actions of public officials. For the law to work, both purposes must remain intact.
The Sunshine Law works because it restricts the conditions under which public officials can meet to make decisions. The public must get adequate notice of the meeting ahead of time. The meeting’s agenda must be made public and available to anyone who wants it. And most importantly, minutes of the meeting must be recorded and also made public.
On a small island like Maui, these restrictions often make seemingly easy decisions like where to get a lunch rather difficult. According to one county council member who asked not to be named, council members have to avoid accidentally forming quorums at restaurants “all the time.”
“They don’t even want us to be friends with each other on Facebook,” the council member told me on Mar. 12, after I posted a Mauifeed.com blog post on HB 2139 HD1. “But we’re elected by the whole county, and we should be able to go to hot potato community hearings, and we can’t. If we had district-wide elections only, that would be different.”
Even if the county council members are sincere in their desire to attend as many public forums and meetings as possible–and there’s no evidence that they’re not–there’s still a case to be made that the Sunshine Law’s restrictions as currently written are for the best.
Carmille Lim, the executive director of the good government group Common Cause Hawaii, made exactly that case in her Feb. 13 testimony before the Senate Public Safety Committee.
“This safeguard is in place to prevent discussion and decisions made on issues without public input and public notice,” Lim noted. “HB 2139 HD1 would allow all members to attend these meetings, listen to a biased presentation in support of a project, and would allow a quorum or all members to discuss the project or issue at hand.”
The League of Women Voters takes a similarly dim view of the bill, noting that terms like “free” and “public” can often describe meetings that aren’t in the public interest.
“If HB 2139 HD1 becomes law, all county council members could be invited to attend an ‘informational meeting or presentation’ organized by proponents of a special interest project,” stated a Mar. 12 press release on the bill. “Prior public notice would not be required. Only invitees might know about the ‘meeting or presentation’ even if the event were open and ‘free’ to the public… It would be possible for the host to structure the ‘meeting or presentation’ to prevent the public from asking questions or participating in discussions. Regardless of how many council members participate, minutes would not be required.”
Echoing those sentiments, the state Office of Information Practices, Common Cause Hawaii, Media Council Hawaii, the Society of Professional Journalists’ Hawaii chapter, Big Island Press Club and attorney Lance Collins–who won the Hawaii Supreme Court case against the county over the Sunshine Law–have all submitted testimony opposing HB 2139 HD1.
But so far, bill supporters seem to be winning. As of Mar. 11, the Senate Public Safety, Intergovernmental and Military Affairs Committee passed the bill unanimously.