When it comes to public notices, shortchanging the public is perfectly legal.
Reading time: 5 minutes.
It was five minutes after noon on Monday of this week when Donna Wong, executive director of environmental watchdog Hawaii’s Thousand Friends, received an email announcing the agenda for a Thursday meeting of the Honolulu City Council’s Committee on Zoning and Planning.
According to the agenda, the meeting is for the sole purpose of considering Castle & Cooke’s controversial Koa Ridge development, which would convert 576 acres of agricultural land to residential, commercial, and industrial use.
The agenda also announced proposed amendments to the zoning bill that would reduce a proposed public park by two acres in order to increase the size of an adjacent commercial area, and increase density on another 26-acre parcel by switching from single family homes to “medium density” apartments.
Wong bristled when the email arrived because it left only three days for Thousand Friends to notify and activate its network, assuring opponents of the development would have their say on this hot issue.
“I was in shock,” Wong says. “Koa Ridge is huge.”
The delayed public notice left Wong suspicious that council members, including committee chairman Ikaika Anderson, provided lots of notice to the developer and little to the public in order to disadvantage the expected opposition.
“So what about the Sunshine Law?” she asked.
State law requires most meetings of public board, commissions, and other bodies be open to the public, and further requires the public to be notified “at least six calendar days before the meeting.”
How does the three-day notice in this instance meet the six-day requirement spelled out in the law?
When 3 = 6
This is one of those cases reminding us that while we have moved squarely into the digital age, our laws were written when most communications were provided via “snail mail” delivered by the U.S. Postal Service.
So while the Sunshine Law (Chapter 92 HRS) requires a six-day notice in advance of public meetings, it spells out how that notice is to be delivered. And the details are surprisingly archaic.
The notice has to be filed with the lieutenant governor’s office or with the appropriate county clerk, depending on whether the meeting is of a state or county agency. The meeting also has to be posted in the agency’s office and, where possible, at the place where the meeting will be held. Finally, each agency is required to maintain a list of people who have asked to be notified, and to mail a copy to each of them no later than when the agenda is filed with the lieutenant governor or clerk.
The ‘Courtesy’ of Email
And here’s where it gets interesting.
The cost of mailing out all those meeting notices has soared as postage prices and copying costs have climbed. Many agencies, already dealing with pinched budgets, have offered the option of receiving public meeting notices via email. It seems a perfect solution. Free and instant delivery, without the need for the agency to copy and staple agendas, stuff and address envelopes, add postage and deliver for mailing.
But for some reason, legislators have been slow to incorporate digital delivery in the law. Hawaii’s Sunshine Law still requires “mail” delivery. And although “mail” isn’t defined, the law was written before email existed, and this provision hasn’t been amended since. So we’re stuck.
According to the Office of Information Practices, many public boards and agencies do maintain email lists and send notices by email, but only as a courtesy.
OIP warns that if notices aren’t properly delivered or aren’t sent in a timely manner, the Sunshine Law doesn’t offer the public any protection. Only mail delivered via USPS offers those protections. Use email and you’re on your own.
So there you have it. In this case, three days equals six days and it’s perfectly legal.
What To Do?
The solution, according to OIP, is to “ask to be placed on the postal mailing list, for which a late mailing would carry Sunshine Law consequences.” If mailed notices don’t arrive on time, OIP says it will “routinely” ask that the meeting be cancelled.
But it seems crazy to require agencies to unnecessarily spend more of their limited time, money, and other resources in order to utilize a less efficient and less effective method of delivering vital information to the public.
In a recent decision involving the Maui County Council, the state Supreme Court pointed out that complying with the spirit of the Sunshine Law may require going beyond its explicit provisions.
As the court put it, “the legislative history and text of the Sunshine Law demonstrates that boards are constrained at all times by the spirit and purpose of the Sunshine Law,” which requires the public’s business to be “conducted as openly as possible.”
Council member Anderson, who chairs the Zoning and Planning Committee and has also announced a run for the 1st Congressional District seat in 2014, needs to be challenged to comply with the spirit of the Sunshine Law in this case. The full council likewise.
And the Legislature really needs to be dragged into the digital age by incorporating email notifications and safeguards into the Sunshine Law without further delays.