Gathering Place

Beverly Keever

Hawaii citizens
need more open
government, not less

The paralysis of leadership and lack of foresight demonstrated at City Hall during the continuing bus revenue/strike crisis prompts this response to a June 19 "Gathering Place" column written by former state legislator Jim Shon.

In that column, headlined "Sunshine is good, but let's not overdo it," Shon would have us believe that the state's open-government law hamstrings officials of city and county councils and executive-branch boards and thus reduces communication and wise decision-making.

The problem is not how City Council members can or cannot communicate under the Sunshine Law. Rather, the root problem is their lack of foresight and leadership to address the bus pass and revenue issues before the bus contract expired.

The Sunshine Law's intent is to open governmental processes to public scrutiny and participation to protect the public's interest. To protect the public interest that has been overlooked in the bus stalemate, citizens and community groups need more -- not less -- open government.

Two main points Shon raised need to be refuted. He summed up his first point this way: "The current mania to apply the Sunshine Law to each and every conversation among officials is not only misplaced, it actually can work against more thoughtful deliberations and laws."

Since lobbying for the Sunshine Law that he says he did in the '70s and '80s, Shon is apparently unaware that the statute was amended in 1996 to permit just such conversations among officials that he mistakenly presumes to be banned.

The 1996 change in the Sunshine Law inserted a section titled "permitted interactions of members," which describes a number of ways small groups of officials can talk about official business in ways Shon erroneously implies are prohibited.

In the 1996 change, one such "permitted interaction" is described as: "Two members of a board may communicate or interact privately between themselves to gather information from each other about official board matters to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought." In other words, the "thoughtful deliberations" Shon advocates are allowed under the law but vote-swapping is not.

Other "permitted interactions" state that two or more members of a board:

>> may investigate a matter relating to the board's official business

>> may discuss in private the selection of the board's officers "without limitation or subsequent reporting"

>> may discuss in private with the head of the department to which the board is administratively assigned.

In addition, most "discussions between the governor and one or more members of a board may be conducted in private without limitation or subsequent reporting."

These "permitted interactions" go a long way to address Shon's concerns. But they also provide loopholes to the intent of the Sunshine Law to protect the people's right to know so as to hold officials accountable.

Shon's second concern is that "It is ridiculous to suggest that everyone on the planet can communicate through e-mail except those who make decisions on our behalf." Yet not "everyone on the planet" is communicating about such official business as negotiating construction contracts, spend taxpayers' money, hiring or firing of officials and budgeting revenues for the city bus contract.

More significant, e-mail is not a secured means of communication. E-mail easily can be tapped by systems-level administrators, hackers, sophisticated partisans, Big Brother and insiders who are privy to the ways officials are talking among themselves.

Moreover, officials could encounter liability if they inadvertently discuss matters in unsecured e-mails that the Sunshine Law permits to be discussed behind closed doors.

Citizens and community groups should avoid being distracted by Shon's misguided arguments that today's problems of governance arise from Hawaii's Sunshine Law. The root problem was and is officials' lack of foresight and leadership to face the known expiration of a contract and to act to avert or shorten a debilitating bus strike.

Beverly Keever is a professor of journalism at the University of Hawaii-Manoa.


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