In a one-sentence decision last month, the 5th Circuit Court of Appeals sidestepped a direct clash between Freedom of Speech and so-called “sunshine laws” on a technicality by reconsidering a previous ruling and deciding instead that the case was now moot.
The case originated in the city of Alpine, Texas, where two members members of the city council were hit with criminal charges for allegedly violating their open meeting law by exchanging emails about whether to place a particular item on the agenda of a subsequent meeting.
Like Texas, Hawaii’s sunshine law has criminal penalties for violations.
§92-13 Penalties. Any person who wilfully violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law.
The Texas charges were dismissed, but the council members filed suit against the county attorney and state attorney general, arguing that the law violated their right to free speech.
Back in April, a three judge panel of the same court had issued a stunning ruling in the case. The court ruled that because sunshine laws restrict the speech of public officials based on content–that is, certain things can’t be discussed by those officials without risking violations of the sunshine law–then the law must be subjected to strict constitutional review. Such laws, the court held, have to be narrowly drawn “to further a compelling state interest”.
Sunshine advocates responded that the “strict scrutiny” required by the court would undermine not only particular local sunshine laws but the underlying public right to know about the actions of government.
The full 5th Circuit agreed to reconsider the decision. But rather than questioning the substance of the April decision, the court instead seized on a technicality, finding that since none of the original plaintiffs were still in public office, they were no longer subject to the open meeting law and therefore the case was dismissed as moot.
It seems clear, though, that the opening provided by the April decision invites further challenges to open meeting and sunshine laws based on the First Amendment.
This is a thorny area.
On the one hand, the 5th Circuit cited several cases in which the U.S. Supreme Court has rejected restrictions on the speech of elected officials.
The Court emphasized that “[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”
Id. at 395.
Further, the 5th circuit spelled out requirements for a strict constitutional review:
…the strict scrutiny test requires that the party defending the content-based restriction has the burden to prove that the regulation is (1) narrowly tailored to serve (2) a compelling state interest; and that in order for that party to show that the speech regulation is narrowly tailored, that party must demonstrate that the regulation does not unnecessarily circumscribe protected expression.
But if the First Amendment requires that restrictions on speech be narrowly tailored, Hawaii’s Sunshine Law is to be interpreted in favor of openness rather than protected speech.
§92-1 Declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation 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. To implement this policy the legislature declares that:
(1) It is the intent of this part to protect the people’s right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
[emphasis added]
The stage appears set for an epic clash of protected interests.
Frankly, I’m inclined to the view that current interpretations of Hawaii’s Sunshine Law are overly aggressive.
Here’s an example. I had a conversation with the late city council member Duke Bainum early in the summer after he invited me to temporarily join his staff. We were in his council office on the 2nd floor of city hall.
I took the opportunity to try to get some “insider” perspectives of the council line-up on the issue of city’s proposed rail transit project by throwing out a question something like this: “Do you have a sense of how committed other council members are to the project, the nature of those commitments, and the odds of breaking loose the vote needed to consider a light rail alternative? What do they say in private?”
Duke looked across the desk and gave a quick answer in his light Arkansas drawl. “I don’t know, we can’t talk. Sunshine law.”
In that moment, I realized that the gradual extension of the idea of sunshine and mandatory openness farther and farther from the point of final decision to encompass all interactions may have gone too far.
Bainum had become convinced that the light rail alternative then being explored by the local chapter of the American Institute of Architects, but he couldn’t talk to other council members about the issue because of the view that the sunshine law doesn’t allow private informal conversations.
Frankly, I don’t think that makes either good sense or good public policy.
In any groups that I’ve been part of where there were differences of opinion and perspective that had to get sorted out to get a job done, informal contacts were important. They are important to build trust among members and to allow airing of concerns and issues that would be difficult to do on a public stage. And they are natural elements of a political process that involves competition among interests that need to be sorted out.
Still thinking about the city council. If council members can’t talk to each other, who can they talk to? They can talk to the mayor and members of his administration. They can talk to their campaign supporters. They can talk to their staff. And they can talk to lobbyists. But they can’t talk to each other.
Is our policy choice really between backroom deals in smoke filled rooms and total isolation of public officials from each other except in formal meetings? Nothing in between?
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I’m a great believer in government in the sunshine. That said, another problem with our current system is that it can be used by bureaucrats to impede or impair the operation our many public citizen oversight boards.
What happens is that ordinary citizens get appointed to public boards. These folks are both volunteers as to their time and amateurs as to public processes. But, as soon as they start moving to fulfill their intended oversight role in any manner, the government agency being watched (staffed by professional bureaucrats whose jobs on the line), can throw all kinds of technical process barriers in their way.
The board members’ limited understanding of sunshine rules is a perfect one — “oh, no, you can’t do that, sunshine law!” may or may not be legally correct, but when voiced by the ostensible experts in the gov’t agency and backed by threat of criminal sanctions, the volunteers just get slammed. They’ve hardly any means to get around this — nobody to ask, and anyway, they are volunteers with other responsibilities and obligations on their time.
If reforms are being contemplated, I suggest loosening things up somewhat for citizen oversight panels with volunteer participants. Elected and paid officials can have a strict program, but ease off for for volunteers, especially those serving in advisory or non-adjudicatory panels. At the very least, remove the criminal jeopardy.
Thankyou so much for discussing this!
As an advocate of open government, I have found myself in uncomfortable positions on a number of occasions when I have criticized our Sunshine Law. My experience of it comes from the Neighborhood Board system, which is subject to it. Up until the law was changed due to a bill that past just last session, 2 or more NB members were not even allowed to attend the same public meeting! This inhibited some of the most active people from finding out what was going on in their communities. We are also restricted from working together on issues between meetings unless we form an official sub-group for that purpose.
How can the Sunshine Law be modified so that it achieves the true intent? It is a difficult question.
Both Lehua Blossom and Rachel are correct. I resigned from a citizen advisory group because my membership in it prevented me from attending public meetings of my choosing. I was told to coordinate with everybody else to make sure that no two of us are in the same room, for heaven’s sake! By resigning, I can participate as a private citizen where ever I wish. I can even go to the meetings of the group I resigned from to voice my opinions and comments as a private individual.
And while we’re at it, the current Sunshine Law is hostile to almost all reasonable forms of electronic participation and collaboration.
The purpose of “Sunshine Laws” in government and whether they are appropriate and how is one question. However, their value for society is something for legislatures and Congress to determine not judges through constitutional questions. Not every imperfect law is an unconstitutional law.
However, a public official is not like an ordinary citizen. Society has the authority to set limits on the activities of public officials as do the bodies in which they are members. This does not offend concepts of free speech since a public official can always resign their position — which they don’t have a right to — if they feel like they are being constrained by the limits imposed by the position they voluntarily assumed.
In the case of charter schools, the LSB have powers equivalent to that of other state boards, including the Board of Education. They have the power to hire, fire, and set all kinds of policy that impact the livlihood of employees of the charter school system. That said, even with the Sunshine Law, it hasn’t stopped overt nepotism, illegal behavior by family members hired by the LSB, and the lack of enforcement has allowed alot of bad management practices to continue with no accountiblity to the stakeholders, the community, and ultimately to the taxpayers. The Sunshine Law in the case of Charter Schools is the only mechanism by which we can hold several of the “family” and “church” run Charter Schools in Hawaii accountable at this time. We cannot allow family and church run Charter Schools to continue to exist at the expense of taxpayer money. It’s an abuse of taxpayers money and undermines the reason why Charter Schools were created.