A Maui attorney today cautioned public officials the current coronavirus emergency does not provide a legal cover to justify a return to secrecy and back room decision making by public agencies, whether intentionally or unintentionally.

Maui attorney Lance Collins directly challenged the notion that Governor David Ige’s emergency proclamation suspending certain provisions of state open government laws means that local government agencies, including boards and commissions, can proceed without worrying about the public’s right to access public meetings and records.

Collins, who has earned a reputation for tackling cases aimed at protecting the rights of the public, especially the underdogs, spelled out his concerns in a letter today addressed to Maui Mayor Michael Victorino and County Council chair Alice Lee.

“Recent statements by some members of the Council and department directors to the media make it seem as though the Council and county boards and commissions are now exempt from open government requirements,” Collins’s letter said.

His letter then spelled out in detail a series of legal reasons why this is not actually the case.

Collins notes that while Gov. Ige did use his emergency powers to suspend certain provisions of the law during the current coronavirus pandemic, his actions did not suspend provisions of the Maui County Charter or the Hawaii State Constitution which spell out the public’s right to know and access government meetings and records.

Emergency rules cannot be used to defeat the host of laws designed to secure regular and appropriate review, related to environmental quality, of development projects, not related to relief or emergency management functions. For example, building a field hospital to treat patients during a public health emergency would be allowed without the otherwise necessary regular review required by law. Allowing building or development to occur that was proposed before the emergency to occur without review simply because the applicant seeks to move forward during the emergency would not be permissible.

As recently as several months ago, the governor was enjoined by the First Circuit Court from using his emergency powers under Chapter 127A, Haw. Rev. Stat. to infringe upon the constitutionally protected traditional and customary practices of Native Hawaiian practitioners at Mauna Kea. An emergency does not suspend the rule of law or common sense but is designed to”protect the public health, safety, and welfare, and to preserve the lives and property of the people of the State[.]” HRS 127A-1

Regarding access to public meetings, Collins argued there is an obligation to provide public access remotely, even if the public can’t be accommodated in person due to the need for social distancing.

As to contested cases or administrative adjudications, the first Supplemental Proclamation suspended Chapters 91 “to the extent … any administrative hearing may be conducted by telephone or video conference without the parties, department, or agency, being physically present in the same location[.]” However, as noted, the [Maui County] Charter imposes a separate requirement that meetings be accessible to the public. Moreover, Chapter 91, Haw. Rev. Stat. establishes a minimum uniform framework by which agencies conduct adjudications as required by constitutional provisions. The proclamation only suspends the uniform procedures. It does not and cannot suspend the obligations imposed by the Constitution.

Collins received the Hawaii Judiciary’s 2018 Pro Bono Award for his pro bono advocacy on important public issues and on behalf of the proverbial “little guy.”

You can read Collins’ full letter here.