The Honolulu City Council routinely introduces bills and resolutions with multiple cosponsors despite a state law that bars members of public boards from discussing board business outside of public meetings.

“The intent of the Sunshine Law is to open up governmental processes to public scrutiny and participation by requiring state and county boards to conduct their business as openly as possible,” the Office of Information Practices writes in its guide to the Sunshine Law. “The Legislature expressly declared that ‘it is the policy of this State that the formation and conduct of public policy — the discussions, deliberations, decisions, and actions of governmental agencies — shall be conducted as openly as possible.'”

Yet five or more Council members have signed on to proposed legislation — that represents a voting majority of the body. For example, eight of nine members affixed their names to a resolution about the Board of Water Supply and fire hydrant locations.

The council has defended its practice, saying signatures don’t guarantee support, only a willingness to consider an idea. But the state’s second highest court ruled five years ago that council members are not allowed to consider council business outside of a public meeting, even if no decisions are made.

The Sunshine Law does permit interactions between two members. It also allows specially designated groups of three or four Council members to investigate issues and report back to the full Council. Three or four members can also discuss reorganizing board leadership without violating the law.

But the Honolulu City Council often goes beyond those limits. In addition to the fire hydrant resolution, here are a few examples just from last year:

• Bill 54, which eventually became what the city now calls the “Stored Property Ordinance,” was introduced Sept. 28 by Tulsi Gabbard with four other signatories. All five of those members were among those who voted for final passage of the bill. Of the four who declined to sign on prior to introduction, one (Romy Cachola) cast the lone “no” vote, and another (Nestor Garcia) opposed the measure at every turn before a last-minute change of heart.

• Bill 35, which reimbursed the city for general fund money spent on the rail project before the transit fund was created, was introduced by Cachola and seven others. It passed unanimously three months later.

• Bill 55, which deals with noise control, was introduced by Gabbard and six of her colleagues. It was deferred in committee in October and has yet to resurface.

Of course, there are dozens of other bills that have been introduced by one member over the years and still managed to pass, and pass easily.

Bill 24, related to agreements between the city and private entities, was introduced by Council Chair Ernie Martin, then just a lowly member, and passed 9-0. Bill 7, dealing with real property tax relief, was introduced by Cachola and also passed 9-0.

Cosponsored legislation is common at both the Hawaii Legislature and in Congress. But neither of those bodies are subject to the state’s Sunshine Law; the Legislature exempted itself from its provisions.

There are other differences between the Legislature and the Council. Martin says the Council gives ample opportunity for public input after proposals are introduced.

“The City Council posts notices 6 days prior to meeting dates, unlike the Legislature’s 48-hour hearing notices for most bills and resolutions,” Martin said in a written statement provided to Civil Beat. “The City Council accepts public testimony at Committee meetings as well as full Council Meetings. At the Legislature, pubic testimony is allowed only in committee hearings and not during floor sessions of the House and Senate.”

He said the Council is complying with both the spirit and the letter of the Sunshine Law.

“Multiple sponsors on bills or resolutions simply reflect the members desire to see the legislation through the legislative process,” Martin said. “It does not indicate support or opposition.”

Blogger and government watchdog Ian Lind said there are lots of reasons for lawmakers to sign onto bills besides genuine support, things like backing up colleagues or showing constituents they tried to get a measure through, even if they quietly “stab it in the back” later on in the process.

Writing on his site Wednesday about broader proposed changes to the Sunshine Law, Lind said advocates have been getting increasingly specific about what is and what isn’t allowed, leading to absurdity.

“The result has been what I consider some absurd results, including the notion that circulating draft bills for signatures prior to introduction would somehow violate the law, despite the fact that it has nothing at all to do with whether the bill will become law or not,” Lind wrote.

Asked about the benefits of circulating legislation prior to introduction, Martin said, “Although not done routinely, the circulation of proposed legislation is sometimes a courtesy notification that a bill or resolution will be introduced.”

And asked if members ever shelve bills and resolutions that do not get support from colleagues when circulated, Martin said, “It is likely that members sometimes reconsider plans to introduce a measure but it is difficult to quantify shelved bills that are never introduced.”

For its part, the Office of Information Practices has yet to take a formal position on this specific question.

“There’s nothing in the Sunshine Law that addresses this very specific issue of whether more than two Council members can sign off on a bill or a reso,” OIP staff attorney Carlotta Amerino told Civil Beat. “It’s not specifically addressed, and it could be that the original drafters didn’t consider it, or it might have just been an oversight. … So I think that would be a novel issue for us.”

The OIP hasn’t opined specifically on cosponsors, but has issued other opinions clarifying the scope of the law.

In 2005, the OIP told then-Council Chair Donovan Dela Cruz the law prohibited so-called “serial one-on-one communications.” In other words, board members can’t get around the rules by going from one colleague to another rather than talking all at once. (Read the summary of that opinion and the full text.)

That fight eventually resulted in a lawsuit, and the Hawaii Intermediate Court of Appeals upheld the spirit of the law. It wrote in its ruling on the “Right To Know Committee v. City Council” case:

The fact that the Resolution was introduced by you and six other council members suggests that you and the other council members discussed the Resolution before it was introduced, which, as discussed above, would be a violation of the Sunshine Law. Even if no discussions occurred, it appears at a minimum that one council member authored the Resolution and requested other council members to co-introduce the Resolution․ At a minimum, by asking whether other council members were willing to co-introduce the Resolution, the initiating council member essentially “polled” the other council members as to their preliminary inclinations regarding the proposed reorganization of the standing committees. The statute clearly does not allow council members to decide council business, even if the decision is preliminary and subject to change, outside of a properly noticed meeting.

That would seem to shoot down Martin’s argument that it’s OK to sign on to a proposal as a way of expressing a desire for the bill to be heard.

Amerino said the OIP evaluates the specific evidence and makes decisions on a case-by-case basis. The “Right To Know” case covered board reorganizations, so the same logic might not necessarily apply to conversations about regular board business. And there were other unique circumstances in that case that might not exist for other bills and resolutions.

The appeals court ruling said the lower court’s order went too far and was too broad in its scope, and noted that “this dispute must be considered in the specific factual context in which it arose.”

Lind, the government watchdog blogger, said that’s critical.

Bills or resolutions with multiple signatures wouldn’t necessarily be proof of a Sunshine Law violation, he said, but might be part of a “chain of evidence” if lawmakers held little or no public discussion about a bill before passing it or if they acknowledged to private deliberations beyond the circulation of a proposal, as was the case with the reorganization resolution that spawned the “Right To Know” lawsuit.

“It’s not on its face a violation,” Amerino, the OIP attorney, said of a hypothetical resolution or a bill with multiple cosponsors. “We’d have to know how they all came to be signatories.”

However, the OIP isn’t likely to be the final word. The courts are where such questions often ultimately land.