Wednesday, July 20, 2011


Disappeared News files complaint with OIP alleging Reapportionment Commission sunshine violations

by Larry Geller

Disappeared News emailed a complaint with citations to the Office of Information Practices today alleging significant violations of the state’s Sunshine Law. The complaint was filed out of concern that the violations could delay or subject the Commission’s decisions to legal challenge, and so should be remedied as quickly as possible.

The complaint detailed three main areas of concern:

1) The ad hoc addition of a critical item to the June 28, 2011 agenda, followed by action on that item, denying the public the ability to be present or submit testimony. The item was whether or not non-residents (military, students) should be counted, with the fallout that the Big Island would not gain an additional state senator.

2) Questions around the formation of a "Technical Committee" that either is or is not a PIG, but continues to operate out of public view.

3) Bypassing public notice requirement by using ambiguous language to describe what may or may not be discussed.

Realizing later that I omitted two points, I emailed them separately:

4) Executive sessions as listed on agendas and as moved by the Chair do not state what will be discussed. The public doesn’t know what they are talking about behind closed doors, or if it is permissible to hold the discussions in secret.

5) The Technical Committee was formed with the agreement that members may be substituted. This seems to be disallowed by in OIP opinion letter 11-11.

Issue number 3 is the easiest to describe. Posting an agenda item like:

VIII. Update on matters from Reapportionment staff. Commission discussion and action, if appropriate, regarding those matters

denies the public notice of what will be discussed. What are the “matters” that the Reapportionment Committee will talk about and perhaps act on?  It doesn’t say. There is no magic way around the Sunshine Law by employing vague language.

Item 1 refers to the ad hoc way (not permitted by the Sunshine Law)  that items have been added to the agendas, but in  particular, to the addition on June 28 of what has become the most controversial decision by the Commission: counting of non-residents.  See this earlier article for a video that caught Chair Marks adding the item without public notice. The Commission added the item, went into an extended executive session, then immediately voted on the issue. Despite the importance of this decision, the public was blindsided because there was no public notice.

Significantly, even though the Commission had voted on the issue on June 28, public testimony was still given at the next meeting, including from Sen. Herkes. Had there been notice, the public could have spoken before the vote was taken.

Item 2 refers to a committee that the Commission formed to do some major hunk of line-drawing.  It is not clear whether the Commission formed a standing committee or what is known as a PIG (Permitted Interaction Group). See the previously linked article for more on PIGs. 

Whether or not the Technical Committee is a PIG, its formation and the responsibilities assigned appear to be irregular.

Civil Beat has also been following the Commission’s meetings, and yesterday reported the possibility of legal challenge to the decision to count non-residents. See: State Lawyer Warns Against Counting Military (Civil Beat, 7/190/2011). If there is a possibility of legal action, there’s all the more reason why the Commission should be sure it has conducted meetings according to the law. A state court judge could invalidate actions of the Commission if they were carried out in violation of the Sunshine Law.

How embarrassing would it be for Judge Marks if that should happen.

For Hawaii, a legal challenge that invalidates much of the work of the Commission could set the process back and cause deadlines to be missed.


On the mainland Republicans and Democrats (mostly Republicans) use reapportionment to rig elections. I hope before it's too late the Reapportionment Commission realizes this and opens the process. Good job Larry in trying to uphold the US Constitution.

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