Gov. David Ige to step back from blanket suspension of open meetings law

State attorneys are working on language that would restore at least some portions of the Sunshine Law that requires government meetings to be public, a law that was suspended as part of an emergency proclamation issued by Gov. David Ige in mid-March to lessen the spread of the new coronavirus.

Krishna Jayaram, a spokesman for Attorney General Clare Connors, said Thursday that staff is working on a revised order that would restore at least a portion of the law.

There’s no timetable for issuing the new language, Jayaram said. “We’ve been told to work on it as soon as possible, so we’re working on it as we speak,” he said.

Ige’s original order said a public commission or board would be allowed to hold meetings that exclude public participation. It goes on to state that the boards should “consider reasonable measures” to allow participation, but also says “no board deliberation or action shall be invalid, however, if such measures are not taken.”

A coalition of open-government and public-access advocates led by Common Cause Hawaii sharply criticized Ige for imposing the restriction, arguing that suspension of the Sunshine Law wiped away decades of government transparency.

An attorney for Oahu Publications Inc., publisher of the Honolulu Star-Advertiser, on Thursday sent a letter to Connors demanding the state reverse the portion of the order that suspended the Sunshine Law requirements.

Attorney Jeffrey Portnoy said the newspaper is ready to take the state to court over the matter if the decision to suspend the Sunshine Law is not reversed.

The proclamation not only violates the public’s constitutional right to access public governmental proceedings, “a number of governmental boards have used the governor’s proclamation to hold secret meetings and deny public access altogether to traditionally public proceedings,” Portnoy wrote.

On Wednesday the Honolulu Police Commission held its regularly scheduled meeting behind closed doors without opportunity for the public to participate in or even observe the meeting. Commission Chairwoman Shannon Alivado told the Star-Advertiser after the meeting that she and the commission have been exploring ways to livestream meetings.

The commission’s meeting on Wednesday will be broadcast live on a monitor to be set up in the courtyard of the Honolulu Police Department’s Alapai station so that the public will be able to view it while practicing proper social distancing, Alivado said. The commission routinely meets in a conference room just beyond the building’s main entrance.

Jayaram, from Connors’ staff, said Thursday afternoon that Ige is expected to clarify his position on the open-meetings law in a new proclamation.

“The state’s original suspension of the Sunshine Law was done in the face of an impending public health disaster,” Jayaram said. Social distancing is expected to be the norm for the foreseeable future, he said. “The governor made clear to us that he wanted to make sure the suspension was revisited to make sure that given the current circumstances, there is proper access by the public to board meetings.”

Jayaram declined to give details of what changes are being considered. But asked whether an agency or commission could be completely shut off to the public like Wednesday’s Police Commission meeting, he said, “We recognize that the public should, at the very least, be allowed to hear what’s happening.”

Common Cause Executive Director Sandy Ma and R. Brian Black from the Civil Beat Law Center for the Public Interest said they’ve been working with Connors’ office for several weeks to rescind the suspension of the Sunshine Law. Both also declined to provide specifics about what’s being negotiated.

Ma said she’s glad Ige is moving off his original position on the issue. “It’s just regretful that it’s taken a little bit of time,” she said.

Black, president and executive director of the Civil Beat law center, said no other state has “gutted” its open-meetings and public-records laws as Hawaii has done.

“I think it’s important for the public-access laws to be respected during a time of crisis,” Black said.

The state Office of Information Practices, which is tasked with providing interpretation, advice and training on public-access laws to agencies, boards and the public, has interpreted Ige’s position on the Sunshine Law in the initial proclamation in a manner “that doesn’t serve the public,” said Black.

Portnoy said the move to ease the suspension of the public-meetings law “comes six weeks too late.”

Portnoy said First Amendment advocates from around the country “were shocked when they saw the extent of (Ige’s) order essentially striking down (the Sunshine Law) and making it totally irrelevant. It was way over-broad, possibly unconstitutional, and to now acknowledge six to eight weeks later … that it was overly broad or excessive is too little, too late. There was never any need for that aspect of the executive order.”

The newspapers, and others, did not object to the notion that meetings could not be held in public during the pandemic, he said. “But not to have in place … simple technology to allow the public to participate either by video or at least by telephone was a serious misjudgment on the part of the governor and his staff,” Portnoy said.

Government bodies at the City and County of Honolulu, besides the Police Commission, have tried to navigate Ige’s suspension of the Sunshine Law in various forms.

At the City Council’s Zoning Committee meeting on April 23, the public was not allowed inside Council chambers but could view it from the lanai just outside. Unlike the Police Commission, Council meetings are broadcast live on ‘Olelo public-access station Channel 54 or online at olelo.org.

On April 16 the city Salary Commission held its final meeting of the year in the same Council chambers. It allowed the public to attend the meeting but did not allow oral testimony. Salary Commission meetings also are not broadcast.

Common Cause raised objections to both meetings, noting that the public is not able to provide testimony on matters that are not on the posted agenda that those panels might choose to discuss or make decisions on.

Today, members of the Honolulu Ethics Commission will hold a meeting remotely and physically apart from each other via WebEx video. The commission agenda describes how the public can watch the proceedings and provides the access code and password for the meeting. Those interested would need to have available, or download, the WebEx application. The public also can listen by phone at a number provided on the agenda.

“Members of the public are encouraged to speak and/or submit written testimony on any agenda item,” the agenda said.

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