In what has become almost a fall tradition, the Hawaii State Association of Counties — made up of the four county councils — is again flirting with asking the Legislature for a new exemption from the state’s Sunshine Law.

The anti-sunshine proposal has been moving without much public notice, and is already well on its way to getting unified county support.

Proposals of this kind have come from HSAC regularly in the past, and the idea is recycled almost annually as HSAC considers its collective agenda for the next legislative session.

This year, the initial proposal would totally exempt the county councils from the Sunshine Law by simply excluding the councils from the definition of public agencies required to follow open meeting requirements.

If such a proposal were to somehow pick up political support at the State Capitol, it could leave each of the counties free to make up their own rules (if any) regarding whether or not meetings of the councils or their committees would continue to be open to the public, whether the six-day advance notice of public meetings would be shortened or discarded, and whether accurate agendas and minutes would be provided.

The proposal to free the councils from sunshine appears to trace back to members of the Maui County Council, which put forward a draft bill for inclusion in the 2014 HSAC legislative package.

The bill said the Sunshine Law’s requirements “unjustifiably interfere with the important legislative work of the council.”

“If an elected official is conducting back-room deals, out of the public eye, then the official will not be re-elected,” one of the “whereas” clauses of the bill’s introduction says.

That phrase, and much of the rest of the proposed bill, is drawn directly from legislative testimony submitted to the House Judiciary Committee in February 2012 by then-Maui Council Chair Danny Mateo on a similar sunshine exemption bill, exposing the political roots of the current exemption proposal.

The draft HSAC bill was discussed at the Maui council’s Policy and Intergovernmental Affairs Committee on Aug. 14, 2013, where several members joined in criticism of the Sunshine Law.

“It’s obvious that something needs to be done, it needs to be tweaked in some way at the very least,” said Robert Carroll of East Maui.

Council Chair Gladys Baisa, who represents the upcountry district including Pukalani, Kula, Ulupalakua, argued the council should have the same flexibility so set its own sunshine rules as the legislature set aside for itself.

“So because the Legislature exempts itself from the constraints of the Sunshine Law, it makes sense to provide the county councils similar flexibility,” Saisa said.

Actually, the partial exemption enjoyed by the legislature reflects, at least in large part, constraints imposed by the separation of powers, making enforcement of the law against the legislature problematic. No similar problems exist in regards to the county councils.

Baisa acknowledged a blanket exemption would be “very, very difficult to sell.” Instead, she advised pursuing a less ambitious proposal that would only lift a provision restricting council members participation in public meetings sponsored by community organizations.

Baisa predicted passing this specific amendment, rather than the broad sunshine exemption, “is probably doable.”

Chapter 92-2.5 provides, in part:

“Two or more members of a board, but less than the number of members which would constitute a quorum for the board, may attend an informational meeting or presentation on matters relating to official board business, including a meeting of another entity, legislative hearing, convention, seminar, or community meeting; provided that the meeting or presentation is not specifically and exclusively organized for or directed toward members of the board. The board members in attendance may participate in discussions, including discussions among themselves; provided that the discussions occur during and as part of the informational meeting or presentation; and provided further that no commitment relating to a vote on the matter is made or sought.”

Baisa’s proposal would allow council members to attend and speak at community meetings, conferences, or similar gatherings “without limitation” as long as the meeting is open to the public.

Councilmember Mike White seems to have expressed the view of the council majority.

“If we can’t attend public meetings…and be trusted not to collude in public, then there’s something wrong with all of us,” White said. “So I think it’s very, very appropriate for us to ask for an exemption from something that makes absolutely no sense.”

Bills must get the support of all four county councils in order to be included in HSAC’s 2014 legislative package. So far, the scaled back sunshine measure is moving forward.

The proposed bill has already gotten the backing of the Kauai and Maui councils, and the Hawaii County Council’s Committee onIntergovernmental Relations and Economic Development backed it by an 8-1 vote last week. The Honolulu County Council has passed a resolution on the HSAC legislation that did not include the sunshine bill, which could effectively kill it, but another resolution that does include the measure was introduced October 1 and is pending.

Restricting attendance at community meetings to fewer than a quorum appears virtually unenforceable, except in the most extreme cases. But allowing attendance and participation, including discussions of matters pending before the council “without limitation” raises a whole range of new problems, as retired reporter Rod Thompson noted in the Big Island Press Club newsletter.

“Since council members would be attending someone else’s meeting, they apparently wouldn’t have to give any public notice that they planned to meet and perhaps speak at such a meeting,” Thompson wrote. “And, depending on how ’notwithstanding’ and ‘without limitation’ are interpreted, they might be permitted to speak directly to each other at such meetings, with no record of such conversations.”

It’s possible that a narrower form of relief, one that retains the admonition that such occasions should not be used to circumvent the spirit of the Sunshine Law, could find a more favorable reception and deserves further consideration.

But it’s worrying that these discussions have been proceeding at the county level for some months without tweaking the interest of the news media. Early warning of potential efforts to weaken the Sunshine Law are always in the public interest.

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