Let’s take a look at issues of government openness that have come up recently across the country. There are usually lots of useful comparisons to be found.
From Columbia, Missouri, an interesting column on a city policy to always charge for public records despite a state law providing for public interest fee waivers.
The city ordinance, passed by the Columbia City Council, mirrors state law and allows for waivers. The city policy, which all staff must obey, says the opposite: Never will a fee waiver be granted (unless the cost is less than a dollar).
Of course, the city policy doesn’t quite put it so negatively. Trying to put the best spin on things, it reads, in part: “It is the City’s practice to consistently collect fees.” The policy statement, issued as revised on Feb. 16, 2009, does note that state law and city ordinances provide the opportunity to waive fees, but the city doesn’t.
Down in Florida, the State Attorney is investigating possible sunshine law violations by two Miami Beach city commissioners who made a move to fire the city manager. The story from the Miami Herald puts sunshine violations in the category of “public corruption,” an association that we typically don’t make here.
From the Panama City News Herald, also in Florida, a proposal to clarify that the state’s public records law applies to an incoming governor’s transition records.
Florida’s laws governing public records should apply to elected officials as soon as they are certified winners of their elections. That means their communications with their staff and other officials as they prepare to take office should be subject to the same scrutiny as if they were already sworn in.It’s a principle that generally has been affirmed through case law. But following the deletion of several of Gov. Rick Scott’s post-election/pre-inauguration emails, Sen. Don Gaetz, R-Niceville, wants to explicitly make the state’s Sunshine Law applicable to political transitions.
“There seemed to be some question as to whether the governor’s transition records were public records technically or not, and I feel that they ought to be,” Gaetz told The Florida Current.
In Memphis, as here in Hawaii, local officials are asking the state legislature to exempt them from parts of the sunshine law. From a Memphis Commercial Appeal editorial:
We sympathize with local officials who are envious of the freedom enjoyed by their counterparts in Nashville and Washington to go behind closed doors and strike deals. A more perfect — transparent, that is — system would not permit that to happen.
But it doesn’t make a lot of sense to weaken the public’s involvement at one level of government so that all levels of government will be equally weak. Transparency strengthens democracy.
From the Marietta Times, in Marietta, Ohio, a proposal to put a notice on all public job applications that applicants names, along with their applications, are subject to public disclosure.
Aside from education and training on the Sunshine Law, we think there’s something else officials like Matthews can do to make future situations like this easier, for both the people who applied and those seeking public records.
Why not include on job applications or notices that since the person is applying for a public position, his or her name and application will become public record and could become public knowledge? Those people won’t have the same expectation of privacy that applying for a job in the private sector affords those applicants.
Many people who don’t work in the public sector are uninformed about the details of public records laws and may not otherwise realize that the information they’re providing is legally available to anyone who requests it.
If that’s included in the job description, then everyone knows exactly what they’re getting into when they apply and there will be no surprises.
From the Pueblo Chiefton in Colorado, a familiar sounding situation: “Gov., leaders dodge open budget promise–First Amendment lawyer says last year’s process was illegal.”
Legislative leaders and Gov. John Hickenlooper would not commit to a more visible debate as they craft the state’s next budget.
Last year in the heat of budget negotiations Joint Budget Committee members ducked into their conference room together, met in unadvertised gatherings in the governor’s office and sometimes disappeared into party leaders’ lairs. A First Amendment lawyer said they violated Colorado’s Sunshine Law.
“Whenever two or more of them convene for purposes of public business, they are supposed to meet in public,” Tom Kelley, lawyer for the Colorado Press Association, said at the time.
JBC members at the time rejected the notion that they had violated the law because their formal votes and decisions happened at public meetings. Hickenlooper came to their defense.
And back to Florida one last time for a Sarasota Herald-Tribune report on issues surrounding the use of Facebook by public officials.
Seemingly innocuous posts could become minefields of litigation under Florida’s tough public records laws, which require everything on an elected official’s or government’s page to be carefully catalogued. If elected officials are caught chatting about anything which may come up later for a vote, they could land themselves in legal trouble.
With Hawaii’s Office of Information Practices set to unveil its legislative proposals to bring the sunshine law into the internet age, these are issues we will soon be grappling with.
Perhaps it’s timely and germane to bring up the question of the organizational placement of Hawaii’s Office of Information Practices…
I think it might best be reorg’d under the Judiciary branch. They might be the least political, and are fine candidates — including the selection process — for being perhaps the greatest offenders for sunshine.
No disrespect to the current Lt. Gov, but what do you think ’bout relocating this office, Ian?
I prefer something beyond judiciary or gubernatorial jurisdiction,
One possibility might be analogous to the state legislative auditor who has true independence and a long-term appointment never broken (so far) by an unhappy politician.
Can you imagine such a process under Lindy or Neil?
I just posted a much to lengthy response to Ian’s post on the Reapportionment Plan. Part of it is directly relevant to this discussion. I believe the Reapportionment Commission violated Hawaii’s Sunshine Law by carrying on almost all of their substantive deliberations in executive session.
This hampered the ability of the public to provide effective testimony and allowed the mistaken ideas of the commissioners to take root, free from the benefits of point and counter-point.
I believe it is less likely the Commission would have settled on a clearly unconstitutional plan had the process been subject to more transparency.
I can borrow a sentence from one of these news reports from Colorado:
Hawaii Reapportionment commissioners “rejected the notion that they had violated the law because their formal votes and decisions happened at public meetings.”
All too familiar.
Ian,
Can you correct my typo?:
“I believe it is less likely the Commission would have settled on a clearly UNconstitutional plan….”
Thanks
Good perspective, Bart.
Judges, including retired ones, have an innate desire to go into chambers and have those juicy in-camera sessions minus the presence of plaintiffs and defendants.
Further evidence the OIP should not be attached to the judiciary.
Hugh,
I think part of the problem was Judge Marks was parachuted in to help manage a very divided commission. I think her personal style was calming and reassuring. She attempted to forge consensus. But it reminds me of one of those television “reality show” team competitions, like Survivor or the Celebrity Apprentice?
Some members of the team are just too difficult to manage, so the team never develops a timely work plan and fails to execute in the time allotted.
There are 5 attorneys on the commission and, surprise, they “lawyered up” the moment they felt threatened by a potential legal challenge.
At this point, I recommend you Big Island folks make a last push. COntact the Hawaii County Advisory Council folks and urge them to call a meeting immediately. I expect the Commission staff may have already drawn up a 4 senate district map for Hawaii county and have just been holding it in reserve. Ideally, you folks would be able to review it quickly, to catch any egregious problems.
Frankly, I think the Hawaii County House districting maps were the most suspicious of all the maps I saw across the entire state. The way they wrap the district boundary around Denny Coffman’s house, separating him from most of his district, smells kinda off to this Honolulu boy.
Don’t let ‘em do it again with your senate seats.
It’s fair to critique where Hawaii’s Sunshine law doesn’t enforce true sunshine.
The other side is how the Sunshine law prevents normal people from conducting normal business in normal and efficient ways in the 21st century. No meetings by telephone, no substantive discussion via email, no approval of minutes by email, no use of Skype for meetings, no use of emerging technologies for collaboration to build consensus.
The Legislature has no incentive to fix this since they are exempt. But it’s interesting to think about a 21st-centure law that would enable both productivity and sunshine instead of failing to enable either.
I believe you can conduct meetings electronically as long as the public is able to take part. Skype would allow that, a conference call with speakerphone access might also work. As I say, I think that’s correct.
-Ian
Note statutory language below.
Planning a meeting by telephone is not permitted, altho it’s a permissible medium for fallback if video fails and you’ve prepared for it.
I exaggerated. Video (Skype) is ok if your home is legally noticed as a meeting site and you invite the public in. And oh yes, if your roadrunner connection goes down and you aren’t ready to deal with fax (or similar) while on the phone then the entire meeting has to be terminated, quorum or not.
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§92-3.5 Meeting by videoconference; notice; quorum.
§92-5 Exceptions.
(a) A board may hold a meeting by videoconference; provided that the videoconference system used by the board shall allow both audio and visual interaction between all members of the board participating in the
(a) A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes:
meeting and the public attending the meeting, at any videoconference location. The notice required by section 92-7 shall specify all locations at which board members will be physically present during a
(1) To consider and evaluate personal information relating to individu- als applying for professional or vocational licenses cited in section
26-9 or both;
(2) To consider the hire, evaluation, dismissal, or discipline of an officer
videoconference meeting. The notice shall also specify that the public
or employee or of charges brought against the officer or employee, where consideration of matters affecting privacy will be involved;
may attend the meeting at any of the specified locations.
(b) Any board member participating in a meeting by videoconference shall be
provided that if the individual concerned requests an open meeting,
considered present at the meeting for the purpose of determining compli-
an open meeting shall be held;
(3) To deliberate concerning the authority of persons designated by
ance with the quorum and voting requirements of the board.
(c) A meeting held by videoconference shall be terminated if, after the
the board to conduct labor negotiations or to negotiate the acquisition of public property, or during the conduct of such
meeting convenes, both the audio and video communication cannot be maintained with all locations where the meeting is being held, even if a quorum of the board is physically present in one location; provided that a meeting may be continued by audio communication alone, if:
negotiations;
(4) To consult with the board’s attorney on questions and issues
(1) All visual aids required by, or brought to the meeting by board members or members of the public have already been provided to all meeting participants at all videoconference locations where the
pertaining to the board’s powers, duties, privileges, immunities, and liabilities;
meeting is held; or
(2) Participants are able to readily transmit visual aids by some other
(5) To investigate proceedings regarding criminal misconduct;
(6) To consider sensitive matters related to public safety or security; (7) To consider matters relating to the solicitation and acceptance of
means (e.g., fax copies), to all other meeting participants at all other videoconference locations where the meeting is held. If copies of visual aids are not available to all meeting participants at all videoconference locations where the meeting is held, those agenda items related to the visual aids shall be deferred until the next meeting; and
private donations; and
(8) To deliberate or make a decision upon a matter that requires the
consideration of information that must be kept confidential pursu- ant to a state or federal law, or a court order.
(3) No more than fifteen minutes shall elapse in implementing the requirements listed in paragraph (2). [L 1994, c 121, §1; am L 2000, c 284, §2; am L 2006, c 152, §1]