If you want to know what the Board of Land and Natural Resources is up to, all you need to do is be placed on its mailing list to receive agendas of all board meetings, right?
Most people who try to follow the board’s activities may have thought so, but as it turns out, the board does not mail out agendas of a type of scheduled gathering that, it claims, is not really a meeting but only an informational briefing. According to Mike Wilson, Land Board chairman, no quorum is required for these briefings and no decisions are made. Therefore, he claims, the public notice requirement is not as stringent as it is for regular board meetings where business is conducted.
In any case, notice of two recent “briefings,” held November 21, was received by Environment Hawai`i. In the first of these, the board heard from David Parsons, administrator of the Department of Land and Natural Resources’ Division of Boating and Ocean Recreation. Parsons’ division had been asked last July to provide the board with a report on delinquent boating accounts and the division’s system of accounts receivable. In the second, Professor Chip Fletcher of the University of Hawai`i made a presentation on the impact of seawalls on beach erosion and accretion.
In both cases, the agenda had been time-stamped at the lieutenant governor’s office on November 14. State law requires meeting notices to be filed within six calendar days of the meeting, so this part of the law relating to notification appears to have been satisfied. However, another section of the state’s Sunshine Law (Chapter 92 of Hawai`i Revised Statutes), requires the board to “maintain a list of names and addresses of persons who request notification of meetings” and to “mail a copy of the notice to such persons … no later than the time the agenda is filed” with the lieutenant governor’s office.
Wilson acknowledges that the agendas weren’t mailed out, but this, he claims, was not required. It would have been nice to mail them out, he told Environment Hawai`i, but his department just doesn’t have the money for the additional postage such a mailing would require. However, agendas for the November 22 board meeting were mailed out the very next day (filed with the lieutenant governor’s office on November 15). It would have cost the department no additional postage to include the November 21 briefing agendas in the mailing of the November 22 agendas.
In state law, there is no distinction between “briefings” and “meetings.” In fact, the term “briefings” does not appear in the law. Moreover, the apparent attempt to justify the briefings as informational only, with no votes to be made, was undercut by the statement on the second briefing agenda — the one concerning coastal erosion — that the board “may go into executive session to consult with legal counsel.” Executive sessions can only be held following a public vote of the board at a duly noticed meeting.
Protests
On the morning of the briefings, Desmond Byrne, chair of Common Cause Hawai`i, lodged a protest with Wilson and other board members. Although the notices appeared to have been properly filed with the lieutenant governor’s office, Byrne wrote, they “were not mailed out to persons who … had requested to be provided with notification of all meetings.”
“In view of this violation,” Byrne continued, “we would request you to reschedule these meetings and give proper notice. We would also request information on previous meetings in 1996 which have not been notified to persons on the mailing list.”
The briefings were held in any case, with five of six board members in attendance. The editor of Environment Hawai`i protested the deficient notification at the outset of the first briefing. Board members appear not to have been notified of the protest of Common Cause.
At the first briefing, no one apart from Environment Hawai`i was present in the audience, despite widespread interest in the subject of the way the state Division of Boating and Ocean Recreation handles its accounts.
The second briefing was better attended. Friends, acquaintances, and students who worked with Chip Fletcher, an expert on coastal erosion, had heard of the briefing by word of mouth. Although notice had not been sent to the Land Board’s mailing list, county planning directors across the state had been invited to attend. (Two — from Kaua`i and Honolulu — were present.)
At the outset of the first meeting, Environment Hawai`i, through its editor, Patricia Tummons, raised objections to the deficient public notice for the record. “As a procedural matter,” Tummons said, “I’d like to go on record objecting to the fact that this meeting wasn’t announced in the customary fashion….
“In the case of the item that David Parsons will be presenting on, I had specifically asked that this be addressed at a meeting of the board that was duly announced, and was assured by you it would be… Perhaps you have found some section of the law that allows you to proceed in this fashion. But I do think it is objectionable, and I also think that in the case of the second agenda item, where you say you’re going to go into executive session possibly, I don’t know how you can go into executive session outside of a vote that is taken at a duly announced meeting.”
Tummons noted that in the past, the Land Board was notorious for violating the spirit and the letter of the Sunshine Law by holding unnoticed briefings the evening before regular meetings. “And I think it is very healthy that those practices of advance board briefings stopped,” she said. “I’m kind of alarmed to see them starting up again.”
“What do you mean, they’ve stopped?” Wilson asked. He explained that while the board does not engage in the review of the next day’s agenda items, as was the custom of past boards, the Land Board often held “briefings.”
“As far as I know, it’s never been the practice of DLNR to send out notice of the briefings,” he said. “We do have situations in which we want to have briefings… In any case, we don’t have a connection between this briefing and decision-making meeting tomorrow.”
Tummons noted that at some future point, there almost certainly will be a meeting at which decision-making will occur concerning the issues on which the board was to be briefed that evening.
“Oh, well that’s true,” Wilson responded. “You raise a good point, particularly when we can mail out a briefing in the same mailing as the meeting agenda. Whether we’ll expend the added effort to send out to 120 people notice of the briefing in the future, we’re going to take a look at.”
Volume 7, Number 6 December 1996