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The Honolulu Advertiser
Posted on: Sunday, May 9, 2010

Why the 'working group' doesn't work


By Thomas Grande

"Information is the currency of democracy."

Thomas Jefferson

"Let the people know the facts, and the country will be safe."

Abraham Lincoln

"Sunshine is the greatest disinfectant."

Louis D. Brandeis

The recent legislative trend of establishing working groups comprised of hand-selected private and public insiders to shape and direct legislation sets a troubling precedent for democracy in Hawai'i. At the very time the Legislature celebrates the 25th anniversary of its public access room, its development of an insider pipeline undermines its efforts to encourage citizen participation.

These working groups may be more expedient in the short-term, but they will only harm the legislative process in the long run. In the words of former U.S. Sen. Russell Long: "A government by secrecy benefits no one. It injures the people it seeks to serve; it damages its own integrity and operation. It breeds distrust, dampens the fervor of its citizens and mocks their loyalty."

A recent Advertiser article and commentary by a state senator involved in creating the closed-door process offer misleading summaries of sunshine requirements in Hawai'i, particularly how open decision-making applies to the Legislature.

Both articles also fail to emphasize that the "working group" was established in response to a formal legislative initiative involving legislative and administrative officials and using public funds.

WHAT SUNSHINE LAWS REQUIRE

According to Article III, Section 12, the Hawai'i Constitution requires that "every meeting of a committee in either house or of a committee comprised of a member or members from both houses held for the purpose of making decision on matters referred to the committee shall be open to the public."

The Legislature, in Hawai'i Revised Statutes [0xa7]92-1, has declared that "it is the policy of this state that the formation and conduct of public policy the discussions, deliberations, decisions, and action of governmental agencies shall be conducted as openly as possible."

Openness requirements are self-imposed by the Legislature itself. The Senate must comply with "openness and fairness in all of its proceedings"; it "is an open public forum for organized debate and deliberative consideration of issues," according to the Senate Rules preamble.

These provisions require that our Legislature be held to the highest standards of openness. The recent creation of working groups violate the spirit, if not the letter, of our constitution and the Legislature's own rules.

ENVIRONMENTAL WORKING GROUP SET

In 2008, the Legislature requested a full examination of Hawai'i's environmental review system, which resulted in a study by the University of Hawai'i recommending an overhaul to the environmental review law.

When proposed changes to the law were presented to the Legislature earlier this year, two Senate committees hand-selected participants who would meet privately in an environmental working group to attempt to reach a consensus for changes to the law. The working group was charged with the responsibility to "develop further recommendations" for the Senate committees.

Importantly, the environmental working group was established by the Legislature – it was not a private coalition of groups. According to the working group report to the Senate, it was "formed under the auspices of the Senate Energy and Environment Committee."

The working group is comprised of private development and environmental interests, government officials in charge of the environmental review process and University of Hawai'i faculty. These hand-selected participants were reminded that "participation in the working group is a privilege, not a right." (See www.hawaiieisstudy.blogspot.com).

The first secret meeting of the working group was held with Senate and House committee chairs present. Legislative staff members were also present as the meetings progressed. Government officials in charge of the environmental review process also attended.

In addition to attendance by various public officials, a professional facilitator was hired to assist the process, apparently paid with public funds. The facilitator required the participants to sign "gag" agreements and not talk to the media about the group workings.

The end-result of the process was proposed legislation, drafted by public and private officials. It is this bill – drafted in private – that will now be considered by the Legislature.

CLOSED PROCESS HURT SUPERFERRY

The arguments in favor of this closed process have been heard repeatedly since the beginnings of our nation. The primary argument, of course, is that it's easier and more efficient to conduct the public's business behind closed doors.

That argument is correct. It is easier and more expedient to have a hand-picked team of public and private officials make legislative recommendations. Democracy – involving the public in the process – takes longer and is less efficient. But what price do we pay by not involving the public?

The environmental review study was prompted, in part, because of the fiasco of the state's attempt to create an interisland ferry system without the public's involvement. The failure to involve the community from the outset resulted in years of litigation and ultimately the failure of the system itself.

Ironically, one of the working group's primary recommendations was the need to improve the public's access to information. The legislators who created the environmental working group should have learned from the experience of the failed ferry system and other failed community initiatives – involve the public from the start and involve the public completely in the process.

It is the way our government is supposed to work – by and for the people.

Honolulu attorney Thomas Grande was executive director of Common Cause/Hawai'i from 1979 to 1982. He wrote this commentary for The Advertiser.