I have volunteered for and served on a number of committees, councils and commissions. My experience has been frustrating. In each case, before we could really get anything started, we were sworn in, often at a difficult time and place.
Although the swearing in to most bodies required a promise to support and defend the Constitutions of the United States and the state of Hawaii, there was no education or discussion about those documents. We were lectured about Hawaii’s Sunshine Law. Several entire meetings of each group were consumed by Sunshine Law explanation. There was even a special Sunshine Law orientation class.
I have spent enough time being instructed and lectured about Sunshine Law that it seems like I have enough classroom hours for a master degree. The Sunshine Law seems like a well-meaning idea, the stated purpose is to keep all the public business out in the open where we can see it and reduce the number of back-room deals between officials. What it does specifically is prevent more than two committee members from discussing an issue without a full quorum. In some cases, the definition of quorum is unclear and can lead to cancellation because the quorum cannot be met.
In one case, I sent an email to the all the other members. That seemed OK until one of them replied to-all, oops violation. I was chastised, so was the correspondent. The next time I sent something to all, it was blind carbon copy, so they could only reply to me, one on one. That was OK with the Attorney General’s office then. Apparently, that is no longer acceptable.
Every attempt to communicate outside quorum is met with a policy that it has to be filtered through the Sunshine Contact, a secretary, who may distribute it to the addressees or not. An open letter to the other members is forbidden, but I can put the same content in an editorial to the general population where they all could read it, I think. A few years ago the Sunshine Law was interpreted so strictly that no more than two members of County council could be present in the same public meeting, (Or attend the same movie?) OK the interpretation was relaxed, as long as they don’t talk to one another about county business, legislation, anything? Unfortunately, it is so strict that it makes almost anything communication difficult to accomplish. Interestingly, while the state Legislature drafted the most restrictive Sunshine Law in America, they had the foresight to exempt themselves. Obviously, there is no risk of corruption at that level.
Every meeting and communication is overseen by Corporation Counsel, there may be other reasons, but the only interactions I can remember were to rigorously inject Sunshine Law. The Corporation Counsel lawyers seem terrified of the Sunshine Law. I thought about sending separate emails to each member but the commission expired before I could try. A compromise was found, Permitted Interaction Groups (PIGs) aka subcommittees, but they must be created in the quorum under the chair’s supervision.
The Sunshine Law is on a collision course with the First Amendment. Suppose that while on a commission, I wrote something on this page that a commission member thought related to commission business Corporation Counsel would chastise me, warn me not to do it again, even though my words were completely open to the public. More so than at a scheduled meeting. What if one of them wrote back to me? What if three of them wrote back to me? In letters to the editor.
The Sunshine Law is a good concept, to keep business out in the open where we can see it. This is to reduce the number of back-room deals between officials. It does not seem to prevent one public official from negotiating deals secretly between contractors or developers. Unfortunately, it is so strict that it makes almost anything difficult to accomplish. As written, it makes it very difficult for a minority faction of a board to organize if they oppose the tyranny of the chairperson’s majority. Members should not have to go along, to get along.
No wonder the police commission took so long, they had to satisfy Sunshine Law before they could start anything.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Send feedback to obenskik@gmail.com.
