‘Sunshine’ Is Nice, Not Practical

Larry Price
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Wednesday - March 26, 2008
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A summary of recommended changes to the current Sunshine Law bouncing around in the Legislature would be comical - if legislators weren’t serious.

A bill, SB 2174, would allow two or more members of a board to discuss official board business as long as no commitments to vote are made and they do not constitute a quorum. Some board- and county councilmembers believe that change would allow for more flexibility and efficiency, while advocates for open government fear it would lead to greater secrecy.

The record shows the issue of “sunshine” popped up in every legislature after the Nixon administration Watergate scandal. The stated purpose of the law was for state and county boards and commissions to conduct business and make public policy decisions as openly as possible.

Generally speaking, the law as it now stands prohibits more than two board members from talking to each other in person or by telephone or e-mail about board business outside of properly noticed public meetings. That means every agenda of an impending board or council meeting must be posted for the public to witness at least two weeks before the meeting date, and it has to be posted in a conspicuous area, like the bulletin board at the state Capitol. Supposedly, if it’s not posted, the meeting is in violation of the Sunshine Law. Furthermore, if the agenda is posted as required by law, and if you then discuss anything that is not on the agenda, you have broken the law, and everything discussed at the meeting is null and void.

The comical part of the law is there are lawmakers who believe that there are board- and councilmembers who don’t caucus privately about upcoming votes and decisions that undermine the spirit of the law. Learning to “count votes” is standard procedure for board- and councilmembers. It is one of the most important skills for a chair of any board or council to develop. If they went into board meetings without having some idea how many votes they had on a proposal before the board, meetings would be a waste of time and nothing would progress.

It just doesn’t happen on a well-run board or council. Everything is run by a top-down hierarchy, much like many of our traditional corporations.

In these well-run corporations, boards and councils, chairpersons can manage effectively without even being present at the meetings.

The downside of this kind of corporation is that the chairperson usually has a difficult time getting information from membership because it may not be in the best interest of the individual members to give up vital information that will assist them in pursuing their own enterprise or dealing with competitors. Said another way, a sunshine law makes it difficult for the chairperson to stay on top of everything. Consequently, this means the chairperson can very easily become isolated from the points of view of the people for whom the organization is supposed to provide services. Unfortunately, the organization doesn’t just belong to the leader.

The record also shows that the Sunshine Law is supposed to foster collective decision making. What it actually does is confuse with the quest for consensus. The search for consensus encourages, more often than not, tepid, lowest-common-denominator solutions that offend no one rather than excite everyone. Instead of fostering the free exchange of conflicting views, consensus-driven groups like the Board of Education, especially when members all know each other so well, tend to embrace familiar and harmonious debate.

If this bill passes, chances are it will not improve the way business is done in the state and counties of Hawaii. What makes this interesting is that there are more than 1,300 people chosen every legislative session to serve on boards, commissions and councils, and most of them come from experiences learned at top-down hierarchy organizations. To these people, “sunshine” means a nice day to put the top down on their convertible.

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