Wednesday, December 19, 2012


ICARUS' LAMENT: Much as we're reticent to describe it as a feud- let's call it "policy dissonance"- we've butted heads with blogger/journalist/public advocate Ian Lind over the Sunshine.

As Ian wrote today in his weekly piece for Civil Beat

I’ve long been an advocate of openness in government, but I now find myself questioning whether the insistence on more and more “sunshine” really leads to the best public decisions and policies.

Well, to be accurate, Ian has been questioning it for a long time and we’ve been on the side that says that, as with democracy, the problems of too much Sunshine are best resolved with more sunshine rather than less.

Ian cites many of the same challenges that office holders have complained about for years.

Asking if we've "become too focused on process rather than policy outcomes," he lists the difficulties in discussing every little bit of minutia regarding a matter of pubic policy, well, in public.

Under " Unintended Consequences" he says:

The problem, in my view, comes when the sunshine law is interpreted as prohibiting all informal communication between officials outside of a public meeting, whether members of the county councils or of other boards and commissions
Hawaii’s law explicitly provides for private discussions between two members of a board “as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.”

He then explains the prohibition on circumventing the sunshine law via "serial communications" and how, in trying to prohibit "back room deals," we've thrown open the door to special interest lobbyists being the ones who most influence policy rather than fellow legislators or- gasp- the public.

He says he was greatly influenced when he was about to become a staffer to the late Honolulu Councilmember Duke Bainum saying:

At some point, I asked about the internal politics of the rail debate and his sense of the perspectives and motivations of other council members.

I don’t know,” Duke said with a shrug. “We can’t talk to each other because of the sunshine law.”
I recall being stunned by this revelation. I had assumed being a member of the city council, an insider, meant Bainum was in a perfect position to persuade his colleagues that the rail plans need more thorough scrutiny.

But how could he be effective without an understanding of where other council members were coming from? Isn’t understanding your opponents and finding levels on which to seek to communicate with them the essence of getting things done in politics? And should the process of political persuasion be restricted to things that can be said in a public meetings?

But as Ian knows, we most certainly do not agree- we've butted heads with him for years on the subject, even challenging his claim to have "long been an advocate of openness in government" while at the same time essentially calling for less, not more, sunshine.

With allies like this...

Anyway, the problem is that, as with many challenges, if you think "it's impossible" then it is. It comes down to the fact that office holders and staff need to figure out how it can be done, not cling to why it can't.

Low hanging fruit starts with meetings conducted under public agendas, especially for boards and commissions who often complain the loudest. And coming from the private sector and being volunteers make them reticent to be open to begin with. Bank presidents are not accustomed to letting shareholders in on their discussions with the rest of the board.

But for elected legislative bodies it shouldn't be a problem to meet more often. This once-a-week thing seems awfully arbitrary, while at the same time officials claim there isn't enough time to discuss things before the public.

But perhaps the easiest thing to do- or what should be the easiest- is for officials to understand the clear lines between information-gathering and deliberating toward a decision.

The law allows for appointment of information-gathering committees of less than a quorum of the body as a whole. But we've seen chairs, for example, claim that non-members of the council on these committees can't even be in the room during a meeting. Or worse, they don't even "get" the concept and have never set up such a committee.

Another example of not "getting" (or not wanting to get) the sunshine law in the first place is that it took years to convince some office holders/chairs that they are allowed to take testimony on an item not on the agenda as long as they don't discuss it right then and there, and rather put it on an agenda in six days. Some still don't get it... or won't allow it, feigning confusion.

Many unfortunately use a slippery slope interpretation of the sunshine law as an excuse to claim it's impossible to adhere to. We've constantly seen chairs narrow the scope of a posting to limit discussion so that they can either leave full discussion for a closed door attempt at circumvention of the "serial communication" rule or worse, so an item doesn’t get fully discussed at all due to political considerations.

Because, in the end, the political ramifications are the only reasons to say you can't discuss public policy in the open.

As a matter of fact, Ian has demonstrated that in his article.

The biggest sunshine law abuse is through an exemption to the open meetings law in order to discuss the "powers, duties, privileges, immunities and/or liabilities" with the board's attorney. It has become a legal loophole to discuss just about anything in "executive session" including things that are purely deemed politically sensitive.

But just thinking about trying to get the legislature to narrow the interpretation of some HRS 92 5(a)4 provisions scares the bejezus out of many Sunshine advocates, because even our supposed allies are willing to use the opportunity to broaden the exemptions to open meetings.

Yes, the Hawai`i law needs review. But people are necessarily reticent to open it up for review because they know they will face an "it can't be done so let's chuck it" attitude when we come in with our "here's how it can be done" attitude.

But, there's only one state senator who "gets it" and that's at the heart of the problem. Frankly, we're scared of an honest review to add more sunshine because we know others will use it as an excuse to make things more opaque.

They say it can't be done. But many of us are too busy trying to do it to agree.

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