I’ve long been an advocate of openness in government, but I now find myself questioning whether the insistence on more and more “sunshine” really leads to the best public decisions and policies.

Have we, perhaps, become too focused on process rather than policy outcomes?

The issue recently surfaced as “fiscal cliff” negotiations are being conducted through telephone calls and private meetings, the stuff that would normally bring protests from sunshine law advocates. It this case, though, the process is proceeding with their tacit approval.

“Government transparency should never mean that there can be no private conversations,” Melanie Sloan, executive director of the Citizens for Responsibility and Ethics in Washington, told National Public Radio this week. “Politics is the art of compromise, and sometimes compromise has to be reached behind closed doors. With all the vast constituencies interested in this, if both sides have to constantly play to their bases in every phrase uttered, they can’t get to a compromise.”

While these negotiations are certainly unusual, similar concerns have been triggered by attempts to eliminate all private conversations between elected officials or appointed members of boards and commissions.

Hawaii’s open meeting law, commonly referred to as the sunshine law was passed in 1973. It requires all decisions of public agencies to be made in meetings that are open to the public, unless specifically exempted. It forced back-room deal-making into the open where the public can see politics in action.

Both distrust of government authority, and the new participatory mood growing out of the turbulence of the 1960s, supported the idea that the public has a right to know how decisions are being made and to use that knowledge to hold officials accountable.

While numerous exemptions have been written into the sunshine law over the years, it still has led to requirements for openness extending far beyond the initial realm of agency votes and final decisions.

My first real doubts were triggered by a conversation in 2009 with the late Duke Bainum, then a member of the Honolulu City Council. He had invited me to join his staff, and we were talking over issues then pending before the council.

At some point, I asked about the internal politics of the rail debate and his sense of the perspectives and motivations of other council members.

“I don’t know,” Duke said with a shrug. “We can’t talk to each other because of the sunshine law.”

I recall being stunned by this revelation. I had assumed being a member of the city council, an insider, meant Bainum was in a perfect position to persuade his colleagues that the rail plans need more thorough scrutiny.

But how could he be effective without an understanding of where other council members were coming from? Isn’t understanding your opponents and finding levels on which to seek to communicate with them the essence of getting things done in politics? And should the process of political persuasion be restricted to things that can be said in a public meetings?

An Ongoing Political Fight

Hawaii’s sunshine law, like those in other jurisdictions, has become increasingly complex over time, its evolution reflecting an ongoing political back-and-forth between openness advocates and the culture of insider secrecy.

Those holding political power correctly saw sunshine as a political challenge and fought back.

One tactic was to simply go through the motions of voting in public meetings after first making the decisions behind closed doors. In response, sunshine proponents used legal challenges and legislative action to extend sunshine requirements to the range of discussions and deliberations leading up to final decisions.

Over time, Hawaii’s Legislature — which has largely exempted itself from sunshine requirements — has added a series of exemptions allowing a growing number of matters to be considered in closed executive sessions, and advocates have responded by continuing to push for full openness earlier and earlier in the process. What started as the insistence on public decision-making and later encompassed public discussions, has now pushed into the hallways and back offices to prohibit or strictly limit conversations between members of boards and commissions.

Unintended Consequences

The problem, in my view, comes when the sunshine law is interpreted as prohibiting all informal communication between officials outside of a public meeting, whether members of the county councils or of other boards and commissions.

Hawaii’s law explicitly provides for private discussions between two members of a board “as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.”

But when the Honolulu City Council used a series of one-on-one meetings to reach agreement on a reorganization plan that was then put to a final vote in a public meeting, the state supreme court issued a 2008 ruling that “serial communications” can’t be used to circumvent the sunshine law’s requirements. Board and commission members are now warned against taking part in any one-on-one conversations outside of public meetings in order to avoid the “serial communications” trap.

The unintended consequence of this aggressive interpretation of open meeting requirements has been the further empowerment of lobbyists and bureaucrats.

Lobbyists are the biggest winners. The sunshine law restrictions don’t apply to lobbyists, who are free to fill the communication vacuum. So while elected and appointed board members can’t discuss issues with each other except in public meetings, lobbyists are free to work the corridors of power, offering technical advice and political perspective in ongoing attempts to shape policies in ways that benefit their paying clients.

The law gives a similar advantage to staff, whether personal staff of elected officials or the staff of public agencies. Board members can’t talk to each other between public meetings, and are dependent on staff either as intermediaries to facilitate information sharing, or directly as policy advisors.

Meanwhile, the value of private conversations is obvious even to the most ardent sunshine law supporters. When faced with damaging legislation or when pursuing strengthening amendments, openness advocates understand public testimony in open meetings is the least effective way to make their case. Instead, they know that getting private “face time” with the key players is the best way to shepherd their issues through the legislative process.

Finally, it is very hard to work through complex or sensitive issues in a diverse group of any kind without tolerating at least some informal communication, whether for clarification of issues, sorting out facts, challenging view points, or just getting to know where other members are coming from.

Many of these questions came up at last week’s meeting of the Campaign Spending Commission, the first meeting for two newly appointed commissioners. Two other commissioners were appointed just a year ago, and the chairman’s term expires next June.

Several commissioners wondered how they can get to know each other’s thinking on key issues, and keep up with a demanding workload, without some level of communication between meetings.

One idea was to update the commission’s strategic plan, perhaps beginning by having a subcommittee develop an initial draft based on ideas or concerns submitted by members. But commissioners were cautioned that soliciting ideas via email from all members could put the subcommittee on the wrong side of the sunshine law.

And when it was suggested commissioners’ address their questions directly to OIP, discussion bogged down over worries that gathering and screening questions via email outside of a public meeting could itself be considered a violation of the sunshine law.

So Where Do We Go From Here?

Short of a full review and rewrite of the sunshine law, which I doubt anyone really wants to risk undertaking, it seems to me there are several immediate steps to take.

First, OIP should facilitate an open discussion to clarify just what informal one-on-one conversations between two board members can take place without running afoul of the prohibition on serial communications. I think two members should be able to informally get to know each other, even if it involves discussing their perspectives on pending issues. And I don’t think they should have to worry about being accused of being scofflaws if they argue over a pending issue during a break in a public meeting. I know friends will disagree with me, which is precisely why it’s important to have the discussion.

Second, OIP should give priority to developing guidelines for use of social media, which can provide a transparent way for members of boards covered by the sunshine law to share information between themselves in a public manner. There are some tricky issues to be worked out, but this is an area in which the public and our officials can benefit from the use of technology to become more effective, efficient, and publicly accessible.

In the end, somewhere along the continuum between secret, closed-door decisions and total transparency without any private communications, there has to be a point where our representatives–whether elected officials or appointed members of boards and commissions–are able to use their best efforts to arrive at their best decisions. This may require sunshine advocates, myself included, to more carefully balance our desire for maximum openness with the goal of facilitating the best public decisions, a balancing process already playing out in the fiscal cliff negotiations in Washington.


Read Ian Lind’s blog at iLind.net.