The Kealoha case. TMT. Gift of a lighted tree. Appointees to the Hawaii Community Development Authority. Zoo sponsorships. Bike rentals. Antennas on city streetlight poles.

What do these seemingly unrelated issues have in common?

They were all “sunshined” on to Honolulu City Council meeting agendas, so that council members could discuss them without giving proper notice to the public.

Contrary to this usage by the council, the Sunshine Law is meant to bring transparency or open government to the public.

Hawaii Revised Statutes Sec. 92-7(a) requires all items to be considered by the council and other boards to be listed on an agenda. The agenda is required to be posted no later than six calendar days prior to the meeting.

An exception to the law is allowed under HRS Sec. 92-7(d). It states items may be added to agendas less than six days prior to meetings “provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.”

The Office of Information Practices reaffirmed this on page 4 of OIP Opinion F16-02 when it stated “a board does have the limited ability to add minor items to its agenda at a meeting.” Note the word “limited.”

Honolulu City Council members listen to public testimony on Bill 85 89.
Honolulu City Council members listen to public testimony on bills in June. Sometimes items are added late to the agenda, a disservice to the public. Cory Lum/Civil Beat

During the past two years, the council has added 13 items to its agendas that based on my understanding violate the Sunshine Law. These items are listed in the table below.

In November 2017, I filed a complaint with the OIP, and the council responded within a few weeks. (Here is a copy of the complaint and response.)

Their response stated they did not violate the Sunshine Law, but they did not cite any OIP decisions to support their positions. Their response also included statements such as “(Resolution 17-310) was not of major importance and does not affect anyone.”

Resolution 17-310, which was introduced Oct. 31, 2017, and “Sunshined” Nov. 1, 2017, urged city administration to implement sponsorship programs for the Honolulu Zoo and other city facilities. Earlier in 2017 the council passed Bill 78 (2015) regarding sponsorships. It was a highly controversial bill and many testifiers opposed it over a period of almost a year-and-a-half. This clearly was not a “minor item.”

Oahu Taxpayers Impacted

In January 2018 I filed an appeal with OIP. The OIP has a significant backlog, however, and I was told resolution to this issue could take two years or more.

It’s worth noting that three of the items, M-7270 (regarding the permit for ProsPac Tower), Resolution 18-270 (regarding the action plan for CDGB, HOME and other grants) and Resolution 18-273 (regarding AT&T antennas on streetlight poles) were either cancelled or deferred in committee, so anyone monitoring these issues would not even be thinking about council follow-up discussions in the next full council meeting.

It’s also worth noting that there was media coverage of the “sunshining” of Bill 56 regarding bike rentals. Shortly thereafter Bill 57 was introduced to replace it.

Since 2017 I have updated OIP on some of the other measures that have been “sunshined,” testified in opposition to several items that I was able to catch in time and asked all council members not to “sunshine” items that are of “reasonably major importance” until my appeal is resolved.

The practice continues, however.

The agenda is required to be posted no later than six calendar days prior to the meeting.

The most recent item to be “sunshined” was a discussion about taxpayer funding of attorney fees in the Kealoha case. Clearly that is not a minor issue and impacts all Oahu taxpayers.

When the council “sunshines” items onto agendas, the public is essentially cut out of the process. There is an option at this point is to file a lawsuit prior to Jan. 23, 2020, but members of the public shouldn’t have to resort to lawsuits in order to hold government officials accountable.

I therefore call on the media, groups who support open government and residents who care about these issues to contact council members and ask them to discontinue the practice of “sunshining” items onto their agendas.

I also ask that our state legislators provide more funding to our good-governance agencies such as the OIP, so they may clear their backlogs and operate in a more efficient manner.

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