The public may be on the verge of getting better access to the workings of government under a new proposal that’s expected to go before the Legislature in January.
The Office of Information Practices plans to introduce a bill next session that would allow boards and commissions to continue to meet using video conferencing software like Zoom or BlueJeans even after the pandemic has passed.
Most boards and county councils have had at least some members attending meetings from home since the pandemic hit Hawaii in March. But that’s only allowed because Gov. David Ige suspended Hawaii’s open meetings law, which has outdated sections governing videoconferencing that have made remote meetings difficult.
The current law doesn’t allow for remote meetings, and the sections covering interactive conference technology wouldn’t allow boards to meet in the manner they do now, according to Cheryl Kakazu Park, the OIP director.
“We’ve been supportive of this because it will expand public participation,” Park said. “We are getting lots of good feedback from the public that online meetings have helped to expand public access and participation in Sunshine Law meetings.”
The OIP proposal would allow for three different scenarios: a normal meeting at which everyone meets in person; a meeting in which board members meet in one location while others watch proceedings from rooms across the state; or a meeting in which all board members and members of the public meet remotely.
The second option would not allow members of the public to testify remotely, according to Park. And there is no requirement that boards pick one option over another. So some may choose to leave behind remote meetings in favor of in-person gatherings once the pandemic is over.
There also isn’t a requirement that boards livestream meetings, as has been the case with the University of Hawaii Board of Regents and the Board of Land and Natural Resources.
Park said giving boards a choice was necessary so that they can pick what kind of meeting they would conduct based on their technological capabilities.
All three options, including the third involving entirely remote meetings, requires at least one public location where people may come to watch the meeting or testify.
“Not everybody has the equipment or connections or skills or desire to participate remotely,” Park said.
The bill lays out guidelines for how boards should conduct remote meetings. It requires most members to show their face on camera, to conduct roll call votes to make it easier for the public to see how members voted, and also requires meetings to be recorded and posted publicly if possible.
The Sunshine Law, as Hawaii’s open meetings law is known, is meant to keep meetings transparent and ensure that the public has adequate means of participating. It requires publication of agendas and minutes among other requirements that ensure meetings are as open as possible.
The current statute has rigid guidelines on interactive conference technology that has made it difficult for boards to adapt to technology in 2020. There are provisions that require meetings to be terminated as soon as the audio goes out, and another that would require board members to open their residences to the public if they participate in a Zoom meeting at home.
“For most boards, it’s a hassle, and they just don’t do it,” Brian Black, executive director of The Civil Beat Law Center for the Public Interest, said regarding the current state of remote meetings.
Still, Black believes the measure could help expand public access to meetings.
The Sunshine Law was first amended to address videoconferencing in 1994. Act 121 added the current provision on videoconferencing, which at the time assumed such meetings would take place in rooms designed specifically for remote conferences.
It didn’t account for meetings one day being held on the internet.
The Senate Ways and Means Committee at the time wrote that the measure would help Hawaii “maintain pace with the information age.”
But the law has not kept pace with technology in the last 25 years. And state lawmakers have hardly touched it since passage.
OIP pushed for a bill this year to allow remote meetings during emergencies, but the bill failed to clear the Legislature.
The new proposal would change requirements for meeting notices so that board members wouldn’t have to post their home addresses on agendas. It also spells out what a board must do if connection is lost.
In most instances, the board has one hour to re-establish connection, or else the meeting must be recessed. Park also said that a board should explain on its agenda the process for what happens if a meeting site loses connection.
For example, a board could tell the public to check a website for the next meeting time or location, or could publish that information on the agenda. If boards do terminate a meeting because of technical issues, Park said they wouldn’t have to comply with Hawaii’s six-day notice requirement to conduct another meeting.
Common Cause Hawaii raised issues with some of those provisions, specifically one line that allows meetings to continue even if one of the meeting sites loses connection.
“If I’m waiting to testify, present information, and that location has technical issues, it seems problematic that the meeting is allowed to continue,” said Sandy Ma, the open-government group’s executive director.
Ma also wants all board members to be present on camera if a meeting is being conducted remotely.
She hopes such meetings will increase participation in government, especially if boards allow for remote testimony.
“People are very aware of the time and money and effort it would take to fly to Oahu for meetings,” Ma said. “Even if you live on Oahu, the traffic is sometimes difficult to navigate.”
In March, access to meetings was in danger of being severely restricted when Ige suspended the meetings and open records laws in what has been considered the most drastic anti-transparency measure taken by a U.S. governor.
Ige later amended the suspension with guidance on how boards can ensure public access.
Since then, most boards and commissions have pivoted to remote meetings.
Among the first were the University of Hawaii Board of Regents, which now livestreams all of its proceedings, and the Maui County Council, which has members on three islands.
Testifiers at UH regents meetings are able to call in and comment on agenda items.
Maui council members, and the public, have reacted well to the council’s use of BlueJeans to conduct their meetings. The council also plans to introduce a bill similar to OIP’s proposal next legislative session.
Almost every state has operated under some form of an emergency order that allows for remote meetings, though most haven’t changed their laws.
The Oklahoma Legislature passed a law in March that allows remote meetings only during an emergency. California and Nevada have had laws dealing with teleconferencing since 2015 and 2019, respectively.
Hawaii’s lawmakers are expected to open the 2021 session on Jan. 20.
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