The Honolulu City Council violated the state’s Sunshine Law in 2017 when it added important items to meeting agendas at the last minute, according to an opinion from the Hawaii Office of Information Practices.

Government boards are legally required to issue agendas for public meetings that should include all items that will be discussed. With a two-thirds vote of members, items may be added to the agenda, but not if the topic is “of reasonably major importance” and action taken would affect a “significant” number of people. Honolulu council members violated that requirement several times in 2017, OIP found.

“For years, the City Council egregiously violated the Sunshine Law by sneaking controversial items on to agendas at the last minute to avoid public scrutiny and participation,” Brian Black, executive director of the Civil Beat Law Center for the Public Interest, wrote in an email. “The fact that Council referred to these hidden agendas as ‘sunshine items’ reflects how little Council understands the public’s role in Council’s process.”

Honolulu City Council Vice Chair Ikaika Anderson. 22 feb 2017

The Honolulu City Council has been “sunshining” items on to the agenda for years.

Cory Lum/Civil Beat

The decision echoes a judge’s ruling in March that found the council had violated the Sunshine Law when it “sunshined” on to the agenda an item about policing at Mauna Kea.

Asked for comment, Council Communications Director Louise McCoy said the council needs more time to analyze the opinion and formulate a response.

OIP found that the council erred when it voted on a last-minute resolution accepting the gift of a tree-lighting at Maunalua Bay Beach Park. The lighting was a topic of “considerable discussion” at a neighborhood board meeting, according to the opinion. Attendees “argued about the tree for nearly two hours,” the opinion notes, citing a Hawaii News Now report.

Given that the tree was in a prominent public location and was a topic of “clear community interest,” council members should not have “sunshined” the item on to the agenda, OIP wrote.

At the same meeting, council members also violated the Sunshine Law by adding to the agenda a deadline extension for the Hawaii City Plaza Condominium, a “controversial” project in Honolulu, the opinion states. If the council had not added the item and approved it, the developer’s application would have been denied, according to the opinion. The fate of the project impacts many people, including constituents who live nearby and those who may rent or buy units, the opinion states.

Also at that meeting, members added a resolution urging the city administration to implement sponsorship programs for the Honolulu zoo and other facilities. While the Corporation Counsel’s office said the issue “does not affect anyone,” OIP disagreed. Had the public been informed there would be a public discussion about the maintenance of city facilities, they might have attended the meeting and participated, OIP said.

Members of the budget committee also improperly added an item to their agenda, OIP found. Members considered a measure requesting a workforce study of the city’s transportation system, including Oahu Transit Service, Inc. and the Honolulu Authority for Rapid Transportation. The city argued that “since this matter does not implement any action, it is not of major importance,” the opinion states. Nevertheless, the directors of OTS, HART and the Department of Transportation Services testified on the matter. Ultimately, the committee deferred action to allow DTS to review the measure and make amendments if needed.

Natalie Iwasa has taken the Council to task for “sunshining.”

Natalie Iwasa

The study could have been “the first step toward a major change in the workforce structure of the City’s transportation services,” OIP wrote. Therefore, it would affect a significant number of people including current and future workers and unions.

OIP stated that the woman whose complaint led to the decision has a right to file a lawsuit to enforce Sunshine Law and void board action.

Natalie Iwasa, a city watchdog who filed the OIP complaint, said she is pleased with the opinion on an issue she has complained about for years.

“It was clear that there were items they were ‘sunshining’ that were of pretty major importance to the public, and the council was discounting the importance for whatever reason,” she said. “It’s good we have this opinion now to clarify more examples of what is of ‘reasonably major importance.'”

The City Council should not be afraid to tell people what it’s doing and to listen to what members of the public have to say, said Black, whose organization filed the Sunshine lawsuit against the council. The case was motivated by Iwasa’s concerns.

“Council has an obligation to serve as an example of government transparency for the rest of the city administration and set expectations for a more open government,” he wrote. “I would hope that the OIP decision and circuit court order would be a wake-up call for the Council to push its own public access initiatives, not look for new ways to violate existing law.”

The Civil Beat Law Center for the Public Interest is an independent organization created with funding from Pierre Omidyar, who is also CEO and publisher of Civil Beat. Civil Beat Editor Patti Epler sits on its board of directors.

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