BARKING IN THE DARK

BARKING IN THE DARK: The Sunshine Law in Hawai`i is known nation-wide as one of the best. Yet in situ, access to government records and meetings is acknowledged to be pitiful.

One of the main “jokes” in the law is that the open meetings requirements that the state legislature has enacted, apply to the others but not themselves.

That’s especially true of the notice requirements that force county councils and state and county boards and commissions to publish virtually un-amendable agendas at least six days before they meet.

Not so the legislature. There is only a two day notice requirement on the books and it has so many loopholes at so many points in the four month session that even that notice doesn’t happen sometimes.

In practice there are two speeds a which legislation moves- lightning fast and zero mph. A bill might sit in an acceptable form for months and literally overnight be amended in a way never contemplated by anyone and moved to a full vote.

But even if the two day notice is given that still makes it impossible for councils, boards and commissions to fairly consider and testify on measures that effect them, because in order to even discuss them they need to put them on an agenda six days in advance of meeting.

That’s only one of the reasons why county councils across the state have asked the legislature to either get them out from under the Sunshine Law or subject themselves to the same restrictions, which go way beyond just notice requirements.

So it’s especially strange that the one Sunshine-related measure passed into law this year- one that hasn’t received any “ink” (or bandwidth) that we can find- was Senate Bill 438, now Act 24, that allows the Board of Education- and only the BOE- to “file any notice that specifies only legislation or legislation-related agenda items, no fewer than two calendar days before the meeting” while the legislature is in session.

The bill passed into law without Governor Linda Lingle’s signature and her statement of concern starts off making a good point by saying

I am concerned that making an exception to shorten the time requirement for filing meeting notices may not be the correct approach for resolving the issue of responding to legislation in a timely manner.

I am also concerned that this bill will allow for special treatment of the Board of Education under the Sunshine Law, as no other board or commission will be provided with the same exception provided under this bill. This bill will require the Office of Information Practices to make a distinction for the Board of Education and treat it differently from the numerous other boards and commissions that must also respond to tight legislative deadlines.

Moreover, because the Sunshine Law, like the Uniform Information Practices Act, is supposed to be administered uniformly across all agencies and boards, creating a special exception for only the Board of Education sets an unnecessary precedent.

I call upon the Legislature to address in a comprehensive manner the conflicts between the Sunshine Law and legislative notices that provide inadequate time for boards, commissions, and the public to respond.

But if hopes that she would call on the legislature to conform with the notice requirements for others were raised by that premise, her conclusion is one that goes in the direction of less sunshine rather than more, saying

At a minimum, the Legislature should consider revising emergency meeting procedures for all boards and commissions that should be afforded the opportunity to comment on pending legislation.

Though on the surface that might seem like a reasonable solution it is one that fulfils the fears that the step in the wrong direction that this legislation embodies makes the slope all the more slippery.

The nuts and bolts problem addressed in the new law is one of many presented by the legislature’s exemption from the Sunshine Law, supposedly because the legislature meets in a hurry up and wait four month session.

That in and of itself is problematic and leads to flawed legislation every year. This year already it has been reported that the new cigarette tax may not be able to be implemented because the two bills that deal with it are inconstant.

The pitfalls of the four month session and exemption allow county councils to argue that they should be exempt too if only as a matter of fairness because to ask the legislature to follow the Sunshine Law would be to ask them to fully reform the way they conduct business and require a constitutional amendment.

But participation in government process is the foundation of democracy and, as Thomas Jefferson said, the solution to the messiness of democracy is more democracy, not less.

Every year some “problem” posed by the legislature’s four month session crops up and is the subject of proposed legislation that tinkers around the edges, usually producing a less than acceptable bill that dies because the piecemeal approach to legislation rarely makes for good lawmaking

Yet when these bills do pass and they’re flawed many times it’s because, in the rush of a short, rigid schedule, those in the public who might be able to offer a better way or at least point out the potential flaws are shut out by the lack of sunshine in the legislative process.

To use the problems posed to create less participation, as this new laws does, is a step in the wrong direction. But until people get fed up enough to demand a change to a year-round legislature with full-time legislators bad laws produced in the dark will be the order of the day.