From the Editor's Desk

posted in: August 2003, Editorial, Opinion | 0

The Land Board Shuts Out the Public

Assume, for the moment, that the public has a right to know what the agencies that control resources it owns do with those resources.

You might want to have a law, say, that requires those agencies to let the public know when those agencies meet.

You might want to allow the public to participate in those meetings by providing testimony.

You might want even to have a law that sets pretty unambiguous limits on interactions between members of such agencies, so that the public can rest easy that no unsavory secret deals are struck behind closed doors in smoke-free state offices or, worse yet, smoke-filled private board rooms.

What you might end up with is a law that looks remarkably like Hawai’i’s Chapter 92, also known as the Sunshine Law. In pertinent part, as lawyers like to say, it provides: “Every meeting of all boards shall be open to the public and all persons shall be permitted to attend any meeting,” except under extraordinary conditions described in another part of the Sunshine Law (dealing with personnel, litigation, enforcement, and the like).

Those exceptional closed meetings themselves must be voted upon at an official open meeting, replete with quorum and public notice: “A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled… The reason for holding such a meeting shall be publicly announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting.”

And as for what constitutes public notice, that, too, is spelled out in Chapter 92. The office of the lieutenant governor has to receive the notice at least six calendar days before the meeting. At the same time, the board or commission must mail meeting notices to anyone who has asked to receive them. While it may be convenient to post notices on a web site or outside the meeting room, such actions do not fulfill the legal requirements of notice.

All in all, it’s a great system. But it is one observed in the breach by the Board of Land and Natural Resources.

Deja vu

Six years ago, Environment Hawai’i and Common Cause-Hawai’i sued the state Board of Land and Natural Resources for violating the Sunshine Law. The board had been conducting “briefings” for which no public notice was given. The case did not go to trial; before that occurred, the Land Board agreed to cease the offensive practices. It was also required to pay the legal expenses and court fees (about $30,000 worth) of the plaintiffs, again, as provided by the Sunshine Law.

Over the next five years, Environment Hawai’i saw little evidence of any flagrant violations of the Sunshine Law by the Land Board.

And then came Peter Young.

The first sign that something was amiss came in May, when the Land Board planned to meet with representatives of the East Maui Irrigation Company the day before its publicly announced meeting. Such encounters are forbidden under the Sunshine Law. We immediately registered our concerns with Young and the meeting was called off. Young said neither he nor his secretary had been trained properly on the Sunshine Law requirements and assured us he would obtain such training.

A month later, the board held an unnoticed “briefing” on the grading that occurred in the Conservation District at Pila`a Bay, on the North Shore of Kaua`i. Young said later he had not been aware that the public was not notified.

In July, the board met in executive session to discuss DFS Hawai’i, the airport concessionaire that is millions of dollars in arrears on lease payments to the state. (The meeting took place on the same day that was set as the deadline for negotiations between the state and DFS on amounts owed.) Once more, no notice was given to the public. Making the violation even more egregious, the board lacked a quorum, with only three members present (Young, Ted Yamamura, and Tim Johns, a former Land Board chair who should know better). And were that not enough, the meeting was with none other than a deputy attorney general, sworn to uphold Chapter 92, among other laws.

When concerns were raised with Young on the following day, he told Environment Hawai’i that he would take the matter up with the attorney general. Sure enough, the next working day deputy attorney general Sonia Faust, who heads the AG division that gives advice to the Land Board, called to inform us that the July 10 meeting would be redone with a full quorum. She was unaware that public notice had not been given for that meeting or for the earlier Pila’a briefing. On learning of this, she agreed that such unnoticed meetings were not allowed under Chapter 92. Young and his staff would be attending a workshop on Chapter 92 requirements, she said, led by the Office of Information Practices. (We are not comforted.)

Since taking office in February, Young has made a point of his openness and has invited comments from members of the public on ways his department might be improved. The department has sent out press releases soliciting input. The DLNR’s web page gives visitors an easy way to submit comments. All this makes terrific frosting, but the “cake” just isn’t there. Until Young commits to providing the public with what is its due – notice of and the ability to participate in Land Board deliberations – any statement that public input is welcome can only be viewed as a cynical shibai.

— Patricia Tummons

Volume 14, Number 2 August 2003