Attorneys representing the Honolulu City Council and a coalition of groups advocating increased openness in government disagreed last week over whether or not the state’s Sunshine Law prohibits council members from any discussion of pending matters in private one-on-one meetings.

Open government advocates urged the appeals court to establish a ‘bright line’ prohibiting private discussions of substantive issues, while the council’s attorney argued a complete ban on private communications between council members would ‘cripple effective lawmaking.’

The issues were debated during oral arguments in front of the Intermediate Court of Appeals in a case stemming from a 2005 City Council reorganization.

Eight organizations, including the Society of Professional Journalists, Big Island Press Club, League of Women Voters and the Right to Know Committee, filed suit in October 2005, saying the Sunshine Law was violated when the reorganization was discussed and agreed to in a series of secret one-on-one meetings before being voted on without any substantive debate in a public meeting.

The Sunshine Law generally requires all official business to be conducted in public meetings unless it falls in a limited number of exemptions, such as the protection of personal privacy or discipline of a public official or employee.

It also permits two members to talk privately as long as votes are not solicited or committed, but Circuit Court Judge Eden Hifo ruled last year that stringing together a series of these secret one-on-one discussions is not allowed. Hifo’s ruling set an overall policy to be applied in interpreting this provision of the Sunshine Law in the future rather than simply deciding on the specific question of whether the reorganization was done legally. The City Council appealed Hifo’s broad decision, leading to last week’s hearing.

Members of the four county councils have regularly asked to be exempted from some or all of the restrictions on private discussions in the same way the Legislature itself is allowed to follow its own internal rules rather than the much stricter Sunshine Law. Although there is some sympathy among legislators for the councils’ position, they have turned down most of the exemption requests.

Deputy Corporation Counsel Don Kitaoka, representing the City Council and its members, agreed that serial one-on-one meetings are illegal if they are used to evade the Sunshine Law, but said there are other circumstances in which they are or should be permitted.

Kitaoka, citing the definition of a ‘meeting,’ said private discussions are legal as long as they do not involve making a decision or ‘deliberating toward a decision’ on matters before the council.

He told the justices that a council member should be able to approach a colleague privately and ask for clarification of what a certain provision in a bill means.

‘So the question could be, ‘what does this provision mean?,’ which is not deliberative and is not making a decision,’ Kitaoka said. ‘But if you’re asking, ‘What do you think about this bill?,’ whether it’s good, bad or a great thing, that’s more into the realm of the deliberative process in decision making.’

‘You can’t have a bunch of one-on-one communications that amount to a meeting of a quorum,’ he said. ‘That is expressly prohibited. But they can do other things, like information gathering, setting stuff on the agenda, calling for a special meeting, asking what a provision means.’

But attorney Elijah Yip, representing the eight organizations, began by quoting the ‘Declaration of policy and intent’ that introduces the Sunshine Law: ‘Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public’s interest.’

Yip argued private meetings between two council members should be limited to procedural matters.

To avoid future problems, Yip asked the court to clearly describe any types of substantive issues that would be permitted to be discussed in a series of two-person private meetings. He pointed to two examples cited in Hifo’s decision, which identified agenda setting and discussions of budget line items as matters that could be subjects of one-on-one meetings. Anything not falling in those specific categories or others defined by the appeals court should be prohibited, Yip said.

Kitaoka responded that a broad general rule would be arbitrary and unrelated to the reality of effective legislative bodies, and said the specific facts of each situation have to be considered.

‘The court can’t draw a bright line without a factual context,’ he said. ‘You’re shooting bullets in the dark without anticipation of the reality.’

The court took the issue under consideration and will issue a ruling at a later date.

For more reports from Ian Lind, visit [iLind.net]

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