Council pushes open Sunshine Law with secret budget meeting, discussions off agenda

HILO — A behind-the-scenes workshop and attempts to get commitments from colleagues on an item not on the agenda are two ways the County Council pushed the limits of the state Sunshine Law in recent weeks, as an especially tight county budget hangs in the balance.

And some council members hope to take more of the budget process out of the public forum by creating a subcommittee that would hold private meetings, gather information and later make recommendations to the entire body.

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Mayor Harry Kim presented his proposed $573.5 million preliminary budget Friday, but components of the spending plan, such as a general excise tax increase and hikes in sewer fees, were discussed last week by the County Council.

The week before that, on Feb. 13, four members of the nine-member council, along with some council staff, attended a “Budget 101” workshop put on by the county Finance Department. There was no public notice or public attendance at the meeting.

In fact, the meeting might have gone unnoticed by the public had Kona Councilwoman Rebecca Villegas not mentioned it during a Feb. 20 council meeting on the GET increase.

“I guess I would just love to have it explained in a more public format what we went over in the budget workshop last week,” Villegas said. “From the explanations and the PowerPoint that we went through, I think it’s important that the public understand how much of the budget we have no control over.”

County administration defended the workshop as a nuts-and-bolts training session about the time lines and process of budgeting, not the substance. A PowerPoint presentation provided to the newspaper at its request showed slides of budget breakdowns and documents, using the previous year budget as an example. There was an opportunity for questions and answers, according to the PowerPoint presentation.

“It wasn’t a budget workshop to discuss the impending budget, it was very general information on county finance and the process we follow to prepare the budget,” Finance Director Deanna Sako said Monday.

Villegas on Wednesday said she mischaracterized the session as a workshop, when she should have called it “budget training.”

Regardless of its name, the session probably should have been open to the public, said Brian Black of the nonprofit Civil Beat Law Center for the Public Interest, who has won several recent Hawaii Sunshine Law cases on behalf of the media and the public.

“If this workshop had simply been open to the public, the four council members’ attendance and participation at an informational presentation might have been permissible under the Sunshine Law. As it is, four members of the Council held a secret meeting to discuss official board business— the budget,” Black said Wednesday.

“It is critical that council members educate themselves about the budget, but these council members neglected the rights of the public under the Sunshine Law to observe and understand how their elected government works by discussing the budget amongst themselves outside an official meeting,” he added.

Lorna Aratani, an attorney for the state Office of Information Practices, which oversees Sunshine Law and open records matters, said she’d need to see more information before her office could comment on the issue. She said the public can submit questions or complaints to OIP, which are then investigated.

“Based upon the express policy and intent of the Legislature that the formation and conduct of public policy be conducted as openly as possible, OIP interprets the statute to require that any site inspection or presentation regarding a matter before the board, or which is reasonably likely to come before the board for a decision in the foreseeable future, be conducted as part of a properly noticed meeting,” OIP says in its handbook.

Several of the council members who attended — in addition to Villegas, they were North Kona Councilwoman Karen Eoff and Puna council members Ashley Kierkiewicz and Matt Kanealii-Kleinfelder — said they didn’t feel the administration was lobbying them for a particular vote during the presentation.

The Sunshine Law does allow two or more members of a board, but less than a quorum, to attend an informational meeting. The board members may participate in discussions, even among themselves, so long as the discussions occur as part of the informational meeting or presentation and no commitment relating to a vote on the matter is made or sought, the OIP handbook says.

However, at the next duly noticed meeting of the board, the members who attended the informational meeting or presentation must report their attendance and the matters presented and discussed that related to official board business, under the Sunshine Law.

This did not occur at either the Feb. 19 or Feb. 20 council meetings. Nor were documents associated with the meeting, such as the PowerPoint presentation, filed in the County Clerk’s office by Wednesday.

The Sunshine Law allows a subcommittee of less than a voting majority to meet privately to investigate matters and make recommendations to the full board provided the scope of the investigation and scope of each member’s authority is defined at a public meeting of the board. The subcommittee must present its findings at another public meeting of the board.

That wasn’t the case in the Feb. 13 budget session, but it is an option Kierkiewicz brought up in the Feb. 20 council meeting. Although it wasn’t on the agenda and therefore not open for public testimony, council members discussed the possible formation of the subcommittee — known as a “permitted interaction group” — during two separate items on the agenda, the sewer fee increase and the GET hike.

“I do want my colleagues to know that … I will be putting forward a communication to create an ad hoc committee for the budget. We need transparency, we need efficiency, we need to increase productivity. But we need to look at all of these things into context,” Kierkiewicz said at the meeting. “I’m really hoping that my colleagues have the next few weeks to really consider this request that I’m putting forward and will support me in this.”

Three other council members commented on her plan over the course of the two agenda items.

One of those was North Kohala Councilman Tim Richards, who unsuccessfully attempted to get the council to agree to the same thing last year.

“I do appreciate what Councilwoman Kierkiewicz is putting forth because I think we have to look at everything in context if we’re going to come up with a good workable solution for the future. And the piecemeal and piecemeal is frustrating,” Richards said. “I do look forward to seeing that piece of legislation.”

Finance Committee Chairwoman Maile David, who represents South Kona/Ka‘u, eventually brought the conversation to a halt.

“I’m going to wait and see. … As far as the ad hoc committee, I’m going to reserve my comments on that,” David said. “It’s not before us right now.”

Kierkiewicz has since filed a communication requesting the subcommittee formation be put on the March 12 Finance Committee agenda. She said later that she didn’t think her comments were out of line. No council member raised a parliamentary point of order on the discussion, which would have ended it.

“If anyone thought it was inappropriate, they would have stopped me,” Kierkiewicz said.

Assistant Corporation Counsel Renee Schoen said she didn’t perceive anything amiss during the discussion.

“I didn’t hear anything that I thought would be a violation. It was more, ‘this is what I want to do.’ It was said in an open meeting,” Schoen said.

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She said the public will have its chance to weigh in once it’s on the agenda.

“The opportunity is going to be there at the moment, when they’re going to consider it,” Schoen said.

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