A bill that would all-but-exempt county councils from the state’s open meetings law, also known as the “Sunshine Law,” is set to receive a hearing today.
Senate Bill 720, co-introduced by Sens. J. Kalani English and Gilbert Keith-Agaran, both Maui Democrats, and Oahu Democrats Michelle Kidani, Donna Mercado Kim and Bennette Misalucha, is scheduled to be heard at 1:30 p.m. today by the Committee on Public Safety, Intergovernmental and Military Affairs.
If passed, the bill “authorizes county council members to caucus during official council meetings.”
Currently under the Sunshine Law, a limit of two members of a council or a governmental board can discuss between themselves matters relating to official business, as long as the two members don’t constitute a forum. The only exceptions are to discuss confidential personnel matters and litigation.
The measure would add a paragraph to Hawaii Revised Statutes 92-2.5, permitted actions of members, to read: “The presiding member of a county council meeting may temporarily recess the meeting, during which members may conduct discussion off the record.”
Sen. Joy San Buenaventura of Puna has signed on to the bill as a supporter, as have Sens. Clarence Nishihara, Maile Shimabukuro, Brian Taniguchi and Glenn Wakai, all Oahu Democrats.
“I generally support the intent — the temporary recess during which they conduct discussions off the record,” San Buenaventura said Tuesday. “It’s kind of similar to what we do in the Legislature. … The decision is made on the record. The testimony that is presented to the council is also on the record, so you know what decision is made.
“The reason I support the intent is it allows for members to try to persuade other members to their point of view without having that discussion be on the record.”
San Buenaventura said she doesn’t favor “lifting the Sunshine Law, altogether.”
“But in the very limited interactions among members prior to the decision, where it looks like it’s a temporary recess during the meeting (with) everything else the same, yeah. For me, it allows for more freer discussion,” she said.
The Legislature exempted itself from the Sunshine Law when Hawaii Revised Statutes Chapter 92 was enacted in 1975.
An alleged breach of the state’s Sunshine Law by illegal caucus during preliminary council confirmation hearings of County Planning Director Zendo Kern is the subject of a lawsuit brought Feb. 2 by Hilo attorney Charles Heaukulani.
In his litigation, Heaukulani alleged that three Hawaii County council members — Kona Councilwoman Rebecca Villegas, North Kona Councilman Holeka Inaba and Chairwoman Maile David, who represents South Kona and Ka‘u — while participating from the West Hawaii Civic Center, turned off their microphones and had conversations among themselves during the confirmation hearing.
In addition, he said, those three council members might have exchanged text messages with Puna Councilman Matt Kaneali‘i-Kleinfelder, who was in the Hilo council chambers.
The four council members, joined by Hamakua Councilwoman Heather Kimball, subsequently voted to send Kern’s confirmation to the council with a negative recommendation.
Kern was confirmed on Feb. 3 by a 5-4 vote, with the votes in favor of Kern coming from Kimball, who switched her vote, along with the remaining four council members, Tim Richards of Kohala, Aaron Chung and Sue Lee Loy of Hilo, and Ashley Kierkiewicz of Puna.
Jacob Aki, a Senate spokesman said that English, the Senate majority leader and a former Maui councilman, “is fully aware of the challenges that county councils face in regard to the Sunshine Law.”
“The primary reason he introduced this bill is to give county councilmembers the ability to caucus over legislative matters during the council meetings. … Due to the inability to caucus, it’s possible for a single bill to have multiple floor drafts.
“… The senator’s main hope is, if this bill passes, this helps the county councils operate a little more smoothly.”
Jeff Portnoy, a Honolulu attorney who represents numerous media outlets, including the Tribune-Herald, and an expert on the First Amendment and media law, called the proposed amendment to the open meetings law “about as anti- a public access provision as I’ve seen in some time.”
“This one paragraph guts the entire purpose of the existing statute, which is to make sure that decision-making, including discussions leading to decision-making, is done in an open proceeding, because this statute, as it presently exists, limits how many members of a body can discuss a particular issue in private,” Portnoy said. “This could mean that the entire discussion leading to a decision could be done in private, which means just the vote would be public.”
“There’s a common saying that the exception proves the rule,” added Nancy Cook Lauer, president of the Big Island Press Club, which submitted written testimony in opposition to SB 720. “But in this particular case, the exception consumes the rule. If this exemption is allowed, there is scarcely a reason to have a Sunshine Law at all, and it would be a farce to continue referring to it as such.”
Editor’s note: John Burnett is immediate past president of the Big Island Press Club.
Email John Burnett at jburnett@hawaiitribune-herald.com.