Frustrated by a deal state lawmakers struck behind closed doors to bail out the Honolulu rail project, all three neighbor island county councils are urging the Legislature to follow Hawaii’s open meeting laws.

The state’s Sunshine Law, or the open meetings law, requires state and county governments to follow certain rules regarding public meetings. Legislators can — and do — exempt themselves from these rules.

The majority of states require their legislatures to abide by open meetings laws, but measures introduced to require Hawaii’s Legislature to follow suit have flopped.

The $2.4 billion rail bailout package was scraped together in part through a 13-year increase in the statewide hotel room tax to 10.25 percent from 9.25 percent.

Civil Beat estimated that would amount to an extra $2.35 on the average daily price of a hotel room.

Critics of the bill to fund rail felt it was cobbled together without enough input from other lawmakers and the public — and its fate had been decided before it was heard publicly. They also said the five-day special session was rushed.

Some lawmakers shared those concerns, but others noted public hearings were held prior to and during the special session, and public input was heard on other rail bailout bills during the regular session.

Many neighbor island leaders were upset their hotel taxes would also be raised to help clean up Honolulu rail’s budgetary mess.

During the final public hearing on the rail bill, tensions ran high between neighbor island county council chairs and members of the House Finance and Transportation committees. Some legislators accused council chairs of misrepresenting the impact of the hotel tax increase to their constituents, saying the revenue collected by the state never belonged to the counties in the first place.

Setting Their Own Rules

The neighbor island resolutions say Hawaii’s Sunshine Law states open meetings are important because they open “the governmental processes to public scrutiny and participation.” The Legislature is exempted from the law, and the House and Senate set their own rules.

Senate President Ron Kouchi and House Speaker Scott Saiki did not return calls Friday seeking comment about the resolutions.

House rules say “certain kinds of meetings, including executive sessions, organizational meetings, partisan caucuses, and meetings the subject of which involves the invasion of a person’s right to privacy if made public, need not be open to the public.”

According to the Senate rules, “meetings in executive session may be allowed in such exceptional circumstances when committee discussion could unfairly damage the reputation of individuals or where there is a legal question concerning a bill.”

Lawmakers are able to suspend these rules with a majority vote at any time, said Brian Black, executive director of the Civil Beat Law Center for the Public Interest, in an email. The Senate president and House speaker can shorten the amount of time required by the rules to provide notice of public meetings.

Counties Wanted More Public Input

The Kauai and Maui resolutions passed their county councils unanimously last month, as West Hawaii Today’s Nancy Cook Lauer reported.

Valerie Poindexter, chair of the Hawaii County Council, expects the Big Island’s resolution to pass as well.

Some of her council colleagues are skeptical legislators will agree to follow the Sunshine Law and worry it could slow the legislative process down, making it difficult to pass anything. There are other ways to improve transparency, Poindexter said, such as having longer sessions.

On the day legislators announced the details of their plan to fund rail, Poindexter said she and the other county council chairs met with the architects of the bill. It was made clear to the council chairs that no amendments would be made.

Constituents should’ve had more opportunity to weigh in, she said. One Kona resident asked, “Why are you taxing the people who are putting food on our table?” Poindexter said.

“We need to stop the backdoor deals and we need to make sure that we are giving the power to the people,” she said, adding she hopes “people take the power back and come out to vote.”

Neighbor island residents didn’t have an opportunity to participate, except for two minutes of public testimony during hearings, said Kauai County Council Chair Mel Rapozo. It’s already inconvenient for constituents to personally participate in discussion, given that hey have to fly to Honolulu.

Neighbor island council chairs who were called back up before the House committees were “disrespected,” he said.

During a joint hearing before the House committees on Transportation and Finance, Rapozo was grilled over a Facebook comment he made on a post regarding the state’s proposal. Legislators said his comment about the special session indicated he was deceiving constituents over the impact of the hotel tax increase.

Even if neighbor island councils were involved, Rapozo said, it’s hard to say if things would have played out differently on the rail bill. State and county lawmakers may have arrived at a compromise, or at least would have at least been more likely to support a bill.

Rapozo said he’s long been concerned about a need for transparency in Legislature, citing the “gut-and-replace” practice of stripping a bill of its original text and replacing it with something totally different — as another concern.

“This last (rail special) session clearly showed the counties, especially the neighbor islands, how a lot of decisions were made,” he said. “And the counties really had no idea what was going on.”

Maui County Council Chair Mike White shared his colleagues’ concerns and said counties have had longstanding concerns about transparency in both the House and Senate.

He finds it “refreshing” that county council members can’t speak to each other before a public hearing because he often doesn’t know where others stand before discussion. Decisions must be made on the floor, he said.

White was caught off guard when legislators invited him to discuss the rail bill at the Capitol. He expected to give input, but legislators “made clear it wasn’t a two-way discussion,” White said.

The cost of extending the session to get more public input shouldn’t be a problem when a $2.4 billion package is at issue, he said.

“The special session was another example of how opaque the process is,” he said.

Concern About County Motivations

Some are wary of the councils’ motivations because for several years, the Hawaii State Association of Counties has introduced legislation that would exempt county council members from following certain Sunshine Law provisions.

Political observers familiar with this history speculate that if legislators continue to exempt themselves and ignore the county resolutions, counties may use that as justification in the push for more open meetings exemptions of their own.

HSAC introduced House Bills 308 and 315 this year, which sought to allow county council members to share certain government records prior to a hearing and allow any number of county council members to attend informational meetings, respectively.

Maui County introduced two similar bills last session — HB 325 and HB 327. Neither made it far.

The state Office of Information Practices, charged with protecting open government, supported HB 308 to more freely exchange records, as long as they were made publicly available on the same day. HB 308 died in conference committee.

But OIP, joined by “good government” groups Common Cause and the League of Women Voters, came out against HB 315. It died after its first hearing.

“Under HB 315, an ‘informational meeting or presentation’ might not be open to the public and could include events which charge admission, events which take place on the mainland or a foreign country … HB 315 would even allow a council quorum to attend an ‘informational’ event at Disneyland,” wrote Douglas Meller of the League of Women Voters of Hawaii’s Legislative Committee in testimony.

“We think the public’s business should be done in public,” he said, noting similar bills HSAC has introduced the past have all died.