Editor’s note: This is Sunshine Week, a national effort started in 2005 aimed at drawing attention to the public’s right to know how government is conducting public affairs. Civil Beat reports on government accountability, transparency and ethics in Hawaii regularly in its “Let The Sunshine In” project. But for this year’s Sunshine Week, we are taking a closer look at controversy over the state’s decades-old Sunshine Law that governs open public meetings at the state and county levels in Hawaii.

The state’s open meetings law has been under attack this legislative session by lawmakers, top state officials and members of state boards who are held to strict guidelines that limit what can be done behind closed doors.

The restrictions on closed meetings have gotten even tighter in recent years thanks to a Hawaii Supreme Court ruling that has forced the hiring, firing and job reviews of high-level public employees to be done in open session. Some boards are still not abiding by the law, despite the high court’s clarification of it, prompting more lawsuits — and more consternation on the part of state officials.

At least three bills introduced at the Legislature this year sought to substantially change the Sunshine Law to allow public boards to do more business in secret, particularly when it comes to hiring people. Only one is still alive, midway through session, and that one is specific to the Mauna Kea Stewardship and Oversight Authority.

Hawaii’s Sunshine Law has been in place since 1975, with relatively few major changes when it comes to open meetings. In 1996, the public records section was separated out into its own law, now known as the Uniform Information Practices Act.

“In a democracy, the people are vested with the ultimate decision-making power,” the Sunshine Law’s declaration section states. “Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental process to public scrutiny is the only viable and reasonable method of protecting the public’s interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and action of governmental agencies — shall be conducted as openly as possible.”

Generally, the Sunshine Law says it’s OK for two board members to talk to each other about board business. But if more than two members want to discuss business they need to form a special group called a permitted interaction group.

That group has requirements of its own, like how many times it needs to report back to the whole board and how many days it has to wait between those reports to give the public time to get involved. If the number of members — even if it’s just two — constitutes a quorum of the board, then that’s a public meeting and needs to be properly noticed and open to the public, among other things.

Critics say the law is confusing. They say they don’t know what they can and can’t do and that they’re constantly scared they’ll get sued. They complain that it prevents them from being able to talk openly to each other or send each other emails, even if it’s not about issues before the board.

“The rules of Sunshine really impede our ability to move forward,” John Komeiji, chair of the Mauna Kea Stewardship and Oversight Authority, told the House Judiciary Committee in February.

Board members think they should be able to at least hire staff, like an executive director, without letting the public know who has applied because the applicant might get in trouble with their current boss if it becomes known they’re looking for a new job. That prevents good candidates from applying, they say.

Board Members ‘Need To Get To Know Each Other’

Hawaii Attorney General Anne Lopez has concerns about particular provisions of the Sunshine Law and drafted some changes she hoped lawmakers would consider this year. The revisions, introduced by Senate President Ron Kouchi as Senate Bill 3203, didn’t even get a hearing.

“The amendments we included in that bill really go to the heart of the areas of Sunshine that we think makes it difficult for a board or commission to do the business of the state,” Lopez said in a recent interview. “We tried to be kind of surgical instead of doing some sort of broad sweeping thing. We tried to identify those points where we thought we could find a better balance.”

Lopez’s proposal arose out of a Senate Higher Education Committee briefing in January when committee chair Sen. Donna Mercado Kim invited members of the University of Hawaii Board of Regents to air their concerns about the law. The discussion was important in light of the board’s efforts to hire a new university president this year, Kim said.

Lopez said one of the key elements she heard at the hearing was that the regents didn’t think they could just get together as a group and have a conversation. They don’t understand that having a conversation is not the same as discussing agenda items, she said.

At the Senate briefing, regents said that they wanted to go as a group and look at problems with student housing. But instead they only went in groups of two to avoid violating the law.

Lopez’s solution was to more clearly define what constitutes a meeting and what the requirement around a quorum would be. The idea would be to allow all members of a board to attend a conference or a presentation and make it clear that the event doesn’t constitute a meeting.

“They’re not going to make decisions or have a vote. They’re just learning,” she said.

She pointed out that Hawaii has 170 boards and commissions made up of volunteers who serve staggered terms and often don’t know each other.

Under the Sunshine Law, “there would be a question about whether or not the whole board could get together and have lunch to get to know each other and just talk to each other about things. It could be that if they were all farmers and the board has to do with farming they might talk about something related to farming that could conceivably end up on their agenda. But really, they just need to get to know each other.”

Lopez, who has owned her own business and served on boards, thinks it’s natural that people talk about things that they have a common interest in when they get together.

“We all talk about things because it’s how we learn,” she said. “It’s how we learn to think differently about things and understand other people so as long as we’re not making a decision” then there’s no harm in members getting together.

Another problem the attorney general was hoping to address this session was to make it easier for boards to hire top staff such as an executive director by allowing it to be done in executive session. In her view, the board would then come into open session and explain who had been hired and why. But the public wouldn’t know who the other finalists were or be privy to the board’s candid debate.

She thinks as it stands now qualified people are reluctant to apply for jobs if they know their names might be made public.

She also worries that board members are intimidated by having to share their thoughts openly. “Getting people to open up in public knowing that every word they say could end up in the newspaper or on Civil Beat or on the TV … they’re just regular people and they don’t want to say something that makes them look stupid in the newspaper the next day.”

They Shouldn’t ‘Hide Their Views From The Public’

For years, boards reserved any discussion about employees including top agency officials for closed executive session, saying these were personnel issues that they were prohibited from discussing in public.

But that changed in 2019 when the Hawaii Supreme Court ruled in a case involving the Honolulu Police Commission and a decision to pay then-Chief Louis Kealoha $250,000 that the commission violated the Sunshine Law by conducting that discussion in a closed session. The Supreme Court said there must be some privacy reason, like a medical issue, to justify a secret discussion and decision-making process.

The Public First Law Center (then known as the Civil Beat Law Center for the Public Interest) was behind that legal challenge and has been working since then to make sure board members know there’s a line they can’t cross and where it is.

In January, the law center filed another lawsuit based on the Supreme Court’s ruling, this one against the Agribusiness Development Corp. and the Defender Council, which oversees the public defender’s office, for the way they handled hiring executive directors. In the case of the Defender Council, the law center is asking that the hiring be invalidated because the violations of the Sunshine Law were egregious.

Brian Black, executive director of the law center, notes that in Hawaii the question comes down to privacy. And the evaluation of whether privacy is a concern begins with whether it’s a high-level position where the public interest is more substantial.

“When you’re hiring high-level people that have significant fiscal discretion, that have control over large amounts of real estate, or even state lands, there is a lot less leeway to do that behind closed doors,” Black said. “And for good reason. People want to know why someone is selected. These are people that are going to be making significant policy decisions for the entire state or controlling large amounts of taxpayer money.”

Black has little sympathy for the notion that board members are reluctant to speak up in public meetings about why they chose a certain job candidate or what their thinking was on other issues they’ve been asked to oversee.

Too often board members have substantive discussions behind closed doors and they walk out and vote without saying anything. “And the public has no idea what the criteria was they used, what the nature of the conversations was. It does not look like it was anything that was intended to provide information to the public,” Black said.

“They shouldn’t be allowed to hide their views from the public and then come out and not say anything,” he said. “They are representative democracy and they should be showing their work. We don’t know if they are representing us.”

Bill Moving Forward With Little Discussion

The Mauna Kea Stewardship and Oversight Authority is pushing lawmakers this year to exempt it from some of the provisions of the Sunshine Law, especially when it comes to meeting and making decisions behind closed doors.

Last year, the Legislature turned over control of the mountain and the controversy swirling around telescopes and cultural issues to the newly created authority. That board has five years to put a plan in place to balance the scientific use of the mountain with protecting Native Hawaiian sacred interests. Some think the board is a thinly disguised effort to finally build the Thirty Meter Telescope and they are watching it closely.

In February, the House Judiciary Committee heard testimony on House Bill 2692, which would give the authority freedom from many requirements of the Sunshine Law. Testimony was overwhelmingly against the exemptions, with opponents arguing that this first five years is a critical time for the public to be able to be involved with how the new board sets up rules that will govern the mountain far into the future.

The committee passed the bill 7-3 anyway with little discussion by members. Earlier this month it passed the full House by a wide margin and is now awaiting hearings in the Senate.

Komeiji, the board chair, argued that his members need to be able to work quickly in order to get things done in the timeframe laid out by the Legislature last year. He told the committee that he couldn’t even take two other members with him to meet with the authority’s attorney because the group of three would be in violation of the Sunshine Law, which only allows two members to talk to each other. He acknowledged that the board could create a permitted interaction group but that would slow down the process by months, he said.

Ben Creps, a lawyer with the Public First Law Center, testified that HB 2692 would create such a wide exception to the Sunshine Law that it “would allow any and all board business to be conducted behind closed doors.”

And that is contrary to what the Sunshine Law was put in place to guard against.

Black noted that Hawaii’s law emphasizes doing things openly and is intended to be construed by the courts to make government more open. Exemptions to open meetings are clearly laid out and specify what can be done behind closed doors, he said.

“There are things that could be done better and just to try and simplify the law to try and make it easier for the boards to apply and make it easier for the public to understand,” Black said. “But that doesn’t require revisiting the entire concept of open meetings.”

The Public First Law Center, formerly the Civil Beat Law Center for the Public Interest, is an independent organization created with funding from Pierre Omidyar, who is also a co-founder of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.