Counting in public – expedience or sunshine?

One of the first lessons learned by newly elected legislators and councilmembers is the importance of “counting.” Even the best ideas will sometimes languish for years until finally the critical fulcrum point representing majority support is reached, and the resulting shift in balance carries the proposal forward into law.

Even those legislators that don’t support a particular proposal understand the importance of counting and will often swing to its support rather than be on the losing side of an issue. “All for one, one for all” permeates the air of the State capitol especially when formal votes are taken. Once a majority of members reach a consensus, a unanimous vote usually follows close behind, with minimal dissension.

At the State legislature, members are allowed the legal opportunity to meet and discuss the issues in private, a right not afforded to those who serve on the County Council and bound by Hawaii’s Sunshine Law.

This means that State legislators will literally go into a room, close the door and work out their differences. They then emerge from the room and vote in public, each of them knowing with a fair certainty what the outcome of the vote will be.

If after having this private discussion it is clear that a certain bill is going to “lose” and fail to carry a majority vote on the floor, then that measure is “killed in caucus” and no vote is ever taken on the floor. This is all done with minimal often no public notification, discussion or debate. And as a further benefit to legislators, there is as a result no public dissension or divisiveness among members. As a practical matter no one knows really “what happened to the bill”. It simply dies.

Killing bills in caucus is the exception rather than the rule as normally, bills that are unable to gain the critical majority support needed during the committee hearing process will die in committee long before they reach the floor vote.

That death will also be a private one. The Chair will ostensibly be making the decision but only after clearing it with “leadership” at another closed door meeting. At the hearing itself, the Chair will announce the bill’s death via a motion to “defer”. There will be no public discussion by committee members and the bill will just go quietly on its way to wherever dead bills go. The general public and the bill’s advocates will be left scratching their heads wondering what really happened.

At the County Council level, due in large part to the Sunshine Law, the personal, political and lawmaking dynamics are far different. Hawaii Revised Statutes Chapter 92 contains Hawaii’s open meetings law, commonly referred to as the Sunshine Law. It governs the manner in which all state and county boards must conduct their official business and is administered by the Office of Information Practices (“OIP”).

The Sunshine Law prohibits members of any County Council (and Boards and Commissions) from meeting in private to discuss official business, requires all meetings to be publicly noticed in advance, allows only topics duly placed on the agenda to be discussed, mandates that meeting agenda and minutes be publicly available etc.

Hawaii’s Sunshine Law which was of course passed into law by the State legislature, also exempts the State legislature from having to comply with that very same law.

Consequently, unlike that of State legislators, the actions, discussions and debate by and between Councilmembers are for the most part conducted in public. This results in a far more robust public discussion and far more “split votes” occurring at Council meetings.

It is against State law for Councilmembers to all go into a room, close the door, work out their differences, and emerge to vote as one big happy family. State legislators however are not bound by the same law and as a result, do the majority of their deliberation in private and often give minimal public notice for public hearings.

The same golden rule of “knowing how to count” that applies to State legislators also applies to Councilmembers, but the primary difference is that Councilmembers must do their counting, their discussion and their debate in public.

From personal experience I know that working within the confines of the Sunshine Law is cumbersome, and much less expedient than the machinations that go on in the back rooms of the Capitol. But I also know from that same experience, that the public would benefit greatly, if State legislators were held to the same requirements that govern County Councilmembers.

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Gary Hooser formerly served in the Hawaii State Senate, where he was Majority Leader. He also served for eight years on the Kauai County Council and was the former director of the state Office of Environmental Quality Control. He serves presently in a volunteer capacity as board president of the Hawaii Alliance for Progressive Action (HAPA) and is executive director of the Pono Hawaii Initiative.

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