Former state representative Gary Hooser, now a member of the Kauai County Council, blogged several weeks ago about his first brush with the sunshine law since his election.
It began with his concerns about the county’s plan for a “temporary” concrete path to the beach in Wailua, which he says has drawn “loud and clear” public opposition. He decided to send a letter to the mayor. Here’s Gary’s description from an entry on his blog, aptly named “Gary Hooser’s Blog.”
So, sans the opportunity to express my concerns in a regular council meeting I drafted a formal letter to the Mayor with the intention of ccing my fellow council-members so that they would be informed of my action. I was promptly made aware that I could not cc my council colleagues as that would be a violation of Hawaii’s Sunshine law and might be considered a form of “serial communication”. I argued that I was merely informing the other council-members of my action as a courtesy and was not discussing policy, nor asking for their opinion, nor asking them to take any action whatsoever. Nevertheless, I was told sending the other council-members a copy of my letter to the Mayor was forbidden. Rather than argue the point I acquiesced and agreed not to provide my colleagues with a copy of my letter.
But sadly, the plot now thickens further. Council staff then informed me that it was the established protocol that I transmit my letter to the Mayor “via the Council Chair”. When I asked further about this protocol, I was told it was the established procedure to avoid the Mayor being sent multiple sometimes duplicative requests by various council-members. I then pointed out by sending my letter via the Council Chair, it then precluded me from discussing the issue with any member of the Council other than the Chair because the Sunshine Law forbids “serial communications” between more than two members when discussing policy issues or County business.
“Yes, regretfully this is true”, I was told.
Hooser said he would be seeking a second opinion from OIP. In the meantime, noted his fallback option if OIP stands behind the idea that it would be a violation of the sunshine law to distribute copies of a letter that would itself be a public record in any case. He quipped:
If so, I guess I will have to just rely on this blog to keep council members, and the entire world, informed of letters that I write.
In my realm of sunshine, serial communications are a way to subvert the law. Since Hooser was a member of legislature that exempted itself, he may not yet realize that.
I can see how copying people on an email could be abused, but as far as sending the letter via the council chair, I think a better solution would be to simply copy the county clerk. That way, the letter would be available to everyone, and it wouldn’t be delayed by the chair.
Are blind copies considered serial communication as well?