The novel coronavirus has upended the world order in a fashion not seen in decades.
Nations are closing borders and scrambling for test kits, organizations are shutting doors and canceling events, and citizens are hoarding supplies and staying indoors.
The COVID-19 pandemic is having other unintended consequences as well. But one happening here at home can be swiftly mitigated by Hawaii lawmakers committed to ensuring transparency and accountability.
On Monday afternoon the House Judiciary Committee is scheduled to decide the fate of Senate Bill 2038, which could give government boards the authority to exclude the public from board meetings under two conditions: that the meetings are accessible via “interactive conference technology,” and when Hawaii is under a state of emergency “due to a contagious illness,” as the latest proposed draft of the bill reads.
The House Judiciary Committee is scheduled to hear a bill Monday that would exclude the public from public meetings.
Cory Lum/Civil Beat
An emergency proclamation has been in place since March 5, when Gov. David Ige allowed the state “to work quickly and efficiently to prevent, contain and mitigate the spread” of coronavirus and to provide disaster relief if necessary.
But the idea to exclude the public from being in the same room when board members meet came Thursday at the behest of the very state agency tasked with making sure the public has access to meetings and records.
Before we get to that, it’s prudent to recall what it is the Hawaii Legislature had in mind when the law was established in 1975:
(1) It is the intent of this part to protect the people’s right to know;
(2) The provisions requiring open meetings shall be liberally construed; and
(3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.
Now, about the proposed amendments to SB 2038.
OIP Director Cheryl Kakazu Park testified that, because of COVID-19, board members should be “temporarily” allowed to ignore the Sunshine Law.
The exemption, Park wrote, would provide public access to meetings via “interactive conference technology through a combination of streaming technology and a site for in-person public attendance that may be physically separate from the one where board members are.”
Park said OIP had heard concerns from multiple boards that “the public meetings the Sunshine Law requires of them provide a potential vector for the spread of COVID-19.”
Open government advocates argue that this is unnecessary and an overreaction.
In his testimony in response to OIP’s wayward recommendations, Brian Black, executive director of The Civil Beat Law Center for the Public Interest, said the proposed amendments “set a dangerous and unnecessary precedent in marginalizing the public’s right to directly observe and participate in the development of government policy.”
Black argues that taking away public rights “should not be a panicked reaction to current events.”
While allowing that COVID-19 could eventually require modification of the Sunshine Law, Black said “there is no reason to strip the Governor of the authority to determine when and how best to do that in light of evolving health guidance.”
Sandy Ma, executive director of Common Cause Hawaii, agrees, noting that the governor has “very broad powers” once a state of emergency is declared.
“I have a hard time understanding why board members would want to physically meet, when the public is excluded (for health and safety) and when a state of emergency has been declared for a contagious illness,” she told Civil Beat. “This just seems illogical and board members would want to connect remotely also, same as the public. To write into the Sunshine Law a contagious illness state of emergency exception, when there is another less permanent avenue of addressing the same concerns, seems odd.”
Black expanded on the proposed OIP amendments in an email late Friday.
“This idea that you need to keep the public contained away from the board members — so that board members only infect board members and the public only infects the public — is elitist and offensive.”
We agree, and we urge the members of the House Judiciary to reject OIP’s proposals.
Sunshine, as the late Justice Louise Brandeis once said, is still the best disinfectant. Sunshine Week, an annual celebration of open government, runs March 15-21.
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The members of Civil Beat’s editorial board are Pierre Omidyar, Patti Epler, Jim Simon, Nathan Eagle, Chad Blair, John Hill and Jessica Terrell. Opinions expressed by the editorial board reflect the group’s consensus view. Chad Blair, the Politics and Opinion Editor, can be reached at email@example.com.