The Honolulu City Council repeatedly violated the state’s open meeting laws when adding items at the last minute to its published meeting agendas, according to a newly released opinion by the Office of Information Practices.
OIP examined four different matters that were added to council or committee agendas, and in each case determined the council violated the Sunshine Law by voting to consider them without prior public notice.
The first matter considered by OIP involved a “gift” from a company controlled by Honolulu businessman Michael Miske of equipment and services that would allow him to string holiday lights on a tree in a city park along the ocean in Hawaii Kai. Both the proposal and its sponsor were controversial, but the council added the matter to its agenda near the end of a meeting that had already gone on for nearly five hours. OIP concluded the action violated the Sunshine Law’s requirement that the public be given sufficient advance notice of matters to be considered in any public meeting.
The purpose of the state’s Sunshine Law, Chapter 92 HRS, is to protect the public’s “Right to know.” It requires public boards and commissions, including the county councils, provide written public notice six-days in advance of any meeting, including an agenda that lists all items in sufficient detail for the public to know what is going to be discussed.
The Sunshine Law provides, in part:
“No board shall change the agenda, less than six calendar days prior to the meeting, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons. Items of reasonably major importance not decided at a scheduled meeting shall be considered only at a meeting continued to a reasonable day and time.”
All too often, this council has given only lip service to sunshine and the public’s right to know, then allowing key matters to be considered without advance public notice.
The first case, and the one which the OIP decision gives the most space to, involves the city council’s meeting on November 1, 2017, when its agenda was amended to add a resolution calling for the gift of equipment and services (valued alternately at $58,000 and $40,000) necessary to add lights to a tree in Joe Lukela Park along the shore in Hawaii Kai as a memorial to Miske’s son, who had died as a result of injuries received in an automobile accident.
The proposal was controversial for several reasons. Miske had installed the same lights illegally the year before, and parks officials had ordered them to be removed. The matter had generated a lot of discussion and debate at the neighborhood level. Allowing private individuals to create “memorials” by adorning city trees on city property was opposed by the Parks Department and some civic groups. And questions were raised about why the city council, led by then-Councilmember Trevor Ozawa, who represented the district, appeared to be giving special treatment to Mike Miske, who had a violent past, a criminal record, and who was facing a trial on felony charges stemming from an assault outside a Honolulu nightclub that he was manager and part-owner of.
According to records of the council’s November 1, 2017 meeting cited in the OIP decision, council vice-chair Ikaika Anderson made the motion to add the Miske resolution to the agenda. His motion was quickly seconded by Kymberly Pine, now a candidate for Honolulu Mayor. Given OIP’s ruling and the Sunshine Law implications, Pine should be asked to address her role and her views of the Sunshine Law.
After all, the four matters addressed by this OIP opinion are only a few of the many instances of this city council’s routine bending of the law in order to address important matters without public notice.
In a Civil Beat column in October 2019, community advocate and former Hawaii Kai Neighborhood Board chair, Natalie Iwasa, called out the council on its sleight-of-hand maneuvers.
The Kealoha case. TMT. Gift of a lighted tree. Appointees to the Hawaii Community Development Authority. Zoo sponsorships. Bike rentals. Antennas on city streetlight poles.
What do these seemingly unrelated issues have in common?
They were all “sunshined” on to Honolulu City Council meeting agendas, so that council members could discuss them without giving proper notice to the public.
The OIP opinion notes that “any person” may “file a lawsuit to require compliance with or to prevent a violation of the Sunshine Law or to determine the applicability of the Sunshine Law to discussions or decisions of a government board.” In addition, any final action taken in violation of the open meeting and notice requirements of the Sunshine Law “may be voided by the court.”
Unfortunately, any suit to void an action has to be filed within 90 days. This OIP ruling comes well over two years since the council’s actions.
See:
“Ian Lind: Why A Tree In Hawaii Kai Is Raising Questions Of Favoritism,” Civil Beat, November 27, 2017.
“Ian Lind: Playing Hardball Paid Off For Hawaii Kai Tree Lights“, Civil Beat, March 23, 2018.
“Man was facing felony charges when aided by Katherine Kealoha,” Ian Lind, iLind.net, March 4, 2019.
“Kealoha not alone in doing special favors for local businessman,” Ian Lind, Civil Beat, March 6, 2019.
“When The Honolulu City Council Is Less Than Transparent,” Natalie Iwasa, Civil Beat, October 7, 2019.
“Honolulu Council Rebuked Again For Violating Open Meetings Law,” Christina Jedra, Civil Beat, May 15, 2020.
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Lots of academic research shows that when the leading authority figures (read – the Federal Government and the White House) elect to blatantly flout laws and ignore oversight, then other executive / legislative bodies follow suit in also flouting oversight. And why not? They are less likely to pay a penalty for their transgressions, On the other hand, as a society we will pay for what the White House is doing for many decades – through increased corruption, increases in borrowing costs (banks and bond issuers don’t trust cities and states without good oversight), and dampened economic growth. And through a continued erosion of trust in government.
The Council has been sunshining measures onto their agendas for at least the last 10 years.
This is the first time I’m hearing the term, and I wonder if it’s the best phrase to use. “Sunshining” sounds like a positive thing if there’s no further explanation. Would it be possible to call it “shadowing,” “deep shadowing,” or “moonshining” instead, since the effort seems to be to keep these measures out of the light?
Exactly right. “Sunshining” is a term that reflects the council’s misunderstanding of the intent of the law.
Due to a 2+ year backlog at OIP, the deadline for filing a lawsuit comes before OIP has even issued an opinion. Every time I asked about the status of the appeal or mentioned another instance of likely violation, OIP provided legal options, and for me, it came down to a bunch of questions.
What’s involved? Should another complaint be filed? Would filing a lawsuit be worth it? How much would that cost (time and money)? What would the consequences be either way?
I sincerely appreciate the assistance of Brian Black from the Civil Beat Center for Law in helping me navigate this process. It’s unfortunate that our good-governance agencies tend not to have enough funding to allow them to be current with their workloads.
“What part of ‘sunshine’ does the Honolulu City Council not understand?”
It appears the Honolulu City Council understands everything they need to about the Sunshine law in Hawaii.
The entire City Legislative branch, including Council Chair and Clerk operate in a highly secretive manner.
The Clerk Takahasi’s charge as Elections responsibility,
was tarnished by State Supreme Court. Little confidence nor public reassurance in the new All Mail Election is present. Even former Elections Staff who have submitted inquiries for past Absentee Mail Ballot audit, normally provided by past Clerk’s, by formal mail request, recurve no consideration or response dating back to last year. The All Software & Vendor Hardware handling, of Mail Balloting is entirely susceptible to computer hacking and fraud. Defrauding voters is a serious essential freedom…of NO CONCERN TO CHAIR ANDERSON & CLERK TAKAHASI!
Had hopped that Council Member Waters, would having been victim of the Clerk, would have taken serious action…instead of continuation of injustice!
What inquiries have not be answered? What, specifically, do you think should be done regarding all-mail-in voting?
Natalie, The new system is entirely reliant on software and vendor machinery and contracts.
Requests in writing to City Clerk made during the same period of the Waters / Ozawa Court challenge in which individual voters, former election workers were left without response for audit of voting records to verify Absentee Mail Ballots were valid or invalidated based on signature match with Drivers License files and not based on Voter Registration Affidavits.
It was common practice in past elections to provide voters with verification that ballots cast by ABM were valid or invalidated. No legal requirement nor notice is required of the City Clerk or Elections Director, to provide opportunity during the 18 day deadline prior election…as the invalidated ballots are entitled to vote again at Walk In Voting.
The manual process of marking Poll Books has been replaced to online information that is not made public to the voter, unknowingly being invalidated!
New Counting Center rules allow for one observer from each party present at anyone time, during what maybe a 24 hour machine counting process conducted over several days tabulation.
In past elections the number of INVALID BALLOTS WERE SIGNIFICANT! NOW AN ALL MAIL BALLOT ELECTION, and estimate of more than 50,000 invalid ballots is more than likely, especially with many new Aloha Aina Party voters. As in the first OHA election in 1980, the total 40 years ago was over 30,000 INVALID VOTES! The outcome of all elections is in serious question with extraordinary invalidation rates, and other factors known as the OVER & UNDER BALLOT ISSUANCE AUDIT MADE WITHOUT ABILITY NOR ACCESS TOO VERIFY THIS PROCEDURE!
Thank you, Lei. I’m following up.
Lei, can you contact me directly about this? As I recall, there were some concerns during the special election that people had a hard time determining if their ballots were counted, and there is still the issue of a small machine count error rate. I’m not sure if your concerns go beyond this.
Our City needs sunlight. Maybe folks can share their personal experiences. Here are City’s go to plays:
-Make contact email addresses impossible to find.
-Phone lines that don’t accept phone messages
-Delay till you go away
-Avoid anything in writing. always phone calls.-
– Dodge direct questions in letters
– Make it really hard for the little people to directly meet decison makers while the “important” people have easy access.