Friday, May 30, 2008

Trial Court to Opine on Issue of First Impression under the Sunshine Law: Can Testimony be Limited to the First Day of a Recessed, Continued Meeting?

In Honua‘ula group joins suit against the county, May 29, 2008, reporter Chris Hamilton from the Maui News reported that on March 19, 2008, the Maui County Council voted 5-4 to grant zoning with a long list of conditions for the developers of the Honua’ula, aka Wailea 670, project. In early April 2008, the mayor signed bills for project district zoning to allow development.

The legal challenge is based, among other claims, on the Council’s practice of recessing its meetings. In practice, the Council closes testimony after the beginning of the meeting on day one, and will not take additional testimony at subsequent continued meetings on the same agenda item.

In this case, the Council’s Land Use Committee continued 13 meetings over two months. For about a year prior, council members on the Land Use Committee conducted dozens of meetings and heard from hundreds of people for and against the project.

HRS Chapter 92, commonly referred to as the Sunshine Law, procedurally requires that “[t]he [Council] shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The [Council] shall also afford all interested persons an opportunity to present oral testimony on any agenda item. The [Council] may provide for reasonable administration of oral testimony by rule.” HRS Section 92-3. In addition, public notice must be given of any meeting by written agenda, six days prior to the meeting. HRS Section 92-7.

Any final action taken in violation of HRS sections 92-3 and 92-7 may be voidable upon proof of violation. HRS Section 92-11.

The question before Maui’s Second Circuit Court Judge Joseph Cardoza is whether recessing a meeting to another day would require additional testimony on the same agenda items. The County says no, because a recessed meeting is a continuation of the same meeting. The Plaintiff’s say yes, because continued meetings are new meetings that require public testimony.

The intent of the Sunshine Law is “to protect the people's right to know.” HRS Section 92-1. Provisions “requiring open meetings shall be liberally construed” and “provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings.” HRS Section 92-1. The Sunshine Law is silent on “recessed” meetings. Moreover, there is no exception that would bar persons from testifying again at a recessed meeting that is continued to a subsequent day.

The Office of Information Practices is charged with interpreting the Sunshine Law when requested. HRS Section 92-1.5. It has not offered its opinion on the issue of recessed or continued meetings; however, it has opined that public testimony on agenda items may be taken at the beginning of a meeting then closed to further testimony. Opinion Letter No. 06-01. The Rules of the Maui County Council provides that the chair may fix time limits for testimony and that testimony is only taken during the “testimony portion of the meeting or hearing”; however, the Rules do not provide for the effect of recessed or continued meetings.

The Court should consider balancing the “people’s right to know” with the practicality of conducting efficient meetings and government business. The Sunshine Law states that "[o]pening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest," but in addition to public scrutiny, the public also has an interest in efficient government. HRS Section 92-1. In this case, the County reportedly heard hundreds of people testify at over a year’s worth of meetings. If the Council allowed each person to testify multiple times on the same agenda item, the item could be filibustered. The alternative to a recess would be a meeting marathon that would gobble up meager county government resources and grind government business to a halt.

Either way Judge Cardoza decides, this case is destined for the Hawaii Supreme Court.

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