Open-government advocates are alarmed at advancing legislation

While opposed by open-government advocates, a Senate bill advanced in the state Legislature this week – with amendments – to allow county council members to jointly attend any meetings or presentations without violating the state’s Sunshine Law, as long as the gathering is open to the public.

An amended Senate Bill 2962 passed out of the Senate Public Safety, Intergovernmental and Military Affairs Committee on Tuesday. Among those on the committee, which voted unanimously in favor, was panel Vice Chairwoman and South and West Maui Sen. Roz Baker.

A companion measure, House Bill 2139, is set to be heard at 2 p.m. today by the House Judiciary Committee. No Maui House members sit on that panel.

While the state Office of Information Practices opposed the bill and advocated for no changes to the state’s Sunshine Law, the office did say that it believes that “it is ultimately a policy decision for the Legislature to decide whether county council members should be permitted to attend community meetings in unlimited numbers without noticing those meetings as regular council meetings.”

The office offered amendments to “provide greater protections for the public than the bill as originally filed.” Those amendments included requirements to notice and keep minutes of “guest meetings” and to videotape them unless the requirement is waived; a prohibition on making a decision at a “guest meeting”; a prohibition on holding such a meeting outside of Hawaii; a restriction on how often a council can be the guest of the same group; and a general prohibition against using such meetings to circumvent the spirit of the Sunshine Law.

If adopted as amended by the Office of Information Practices, the measure would sunset after four years, allowing an opportunity to assess how the “guest meeting” was used in practice.

Maui County Council Chairwoman Gladys Baisa submitted written testimony in favor of the bill.

“As elected officials, it is the job of council members to find out how people in our community feel about policy issues, to become educated on those issues and to enact legislation addressing them when feasible,” she wrote. “This measure will increase council members’ access to our constituents and to educational opportunities as they arise.”

Baisa maintained that allowing council members to attend such meetings would “not jeopardize openness in government or in legislative decision-making.”

“Council members have no control over the agenda, discussion or outcome of meetings of noncouncil entities,” she said. “To the contrary, open participation in such meetings by elected officials will increase transparency and help to ensure responsiveness of council members to the public they serve.”

Baisa noted that the Maui County Council has not taken a formal position on the measure, but Vice Chairman Robert Carroll and Council Members Don Couch and Stacy Crivello submitted testimony in support of Baisa’s comments.

The League of Women Voters submitted testimony strongly opposed to the bill, particularly its provision of allowing meetings “without limitation.”

“Abusive practices would be legalized if the bill became law,” said Douglas Meller, Legislative Committee member of the League of Women Voters of Hawaii. “For example, if the bill became law, a developer could host a meeting open to the public to ‘educate’ a county council about his pending zoning application; a county council quorum could attend; and county council members could ‘trade votes.’ (For example, council members could orally promise to vote a certain way on the developer’s application if other council members orally promised to vote a certain way on some other bill before the council.)”

Common Cause Hawaii also opposed the “without limitation” provision as being “most concerning.”

The group proposed an amendment to the bill to provide that it would allow only meetings not related to official business.

In written testimony to the Senate committee, Office of Information Practices Director Cheryl Kakazu Park said that the state’s Sunshine Law was amended in 2012 to allow less than a quorum of members of any board (including county councils) to attend community meetings, conventions, conferences or other types of meetings or presentations, but that amendment had “protections for the public that this bill lacks.”

The reason for limiting council members’ participation at a meeting to less than a quorum was to “preclude the possibility that the board’s discussion in the course of an outside event would crystallize the board’s decision on an issue to the point where its eventual vote at a noticed meeting would be a mere formality,” Park said.

She noted that current law allows council members to engage in back-and-forth questioning on a topic at an event. However, because the proposed amendment is “without limitation,” that would allow “discussion of any council business they chose by all the members while eating lunch or otherwise gathering together during a convention,” she said.

Park pointed out that current law requires board members attending an outside event to report their attendance and what was discussed at the next board meeting. That means that “because only a minority of members could have attended an outside event, their report to the board would need to be sufficiently detailed if they wished to influence any decision on the issues discussed at the event,” she said. “Under this proposal, by contrast, the council members would have no obligation at all to publicly disclose that they had even attended an event together.”

She said the proposed amendment also would not prevent council members from attending an event together to make or to seek a commitment on a vote on a matter under discussion.

The committee’s amended version of the bill was not available online as of Wednesday afternoon. However, the Office of Information Practices said it believes the panel’s new version would “track the attached language provided by OIP,” which creates a “guest meeting” as a type of limited meeting with additional restrictions under the Sunshine Law.

* Brian Perry can be reached at