Friday, September 30, 2011


Hawaii Board of Education schedules new vote on 4540--High School Graduation Requirements

by Larry Geller

The just-posted agenda for an October 4, 2011 general meeting of the Hawaii State Board of Education re-lists Policy 4540 for a vote. This policy includes controversial changes to social studies credits.


The three asterisks lead to this note:


The Board voted on the policy at its September 20 meeting even though the action was not listed on their agenda, and hence illegal under Hawaii’s Sunshine (Open Meetings) Law. See: Hawaii Board of Education tramples Sunshine Law (9/21/2011).

The new agenda reflects the impact of testimony given at that meeting, including my own. I did file a complaint. Perhaps they listened. More likely, they have communicated with the Office of Information Practices (OIP).

For example, the October meeting indicates a consultation with their deputy AG in executive session on their responsibilities under the Sunshine Law. He now seems concerned, or perhaps the Board is concerned. It doesn’t matter. They can, and it appears they will, do better than they have in the past:

Exec session


Another significant but troubling change is also relegated to a footnote on the agenda:

Document servitude

One of the controversies (and a Sunshine Law violation) on the September 20 agenda was the inclusion of two attachments. The first was posted along with the agenda on the BOE website but nowhere else, and the second, an Amendment, was posted on the BOE website just the day before the meeting. The two were not identical in the area of controversy, the disposition of social studies credits. At the meeting, it appears that the late-posted version was adopted, though this could not have been clear to those attending, particularly if they had downloaded the earlier version. They would not have known about the changes.

The BOE has “solved” the problem in a back-handed way. The materials are now available in a folder at the back of the room at the time of testimony, and copies will be sold for $.25 a page.

In other words, those interested in the subject area who might wish to testify for the next meeting have to figure out how to get a copy of what the BOE will be discussing before the meeting, or try to speed-read it when they are there.

On the positive side, it appears that the BOE may be taking the need to comply with the Sunshine Law more seriously.

At a Wednesday seminar given by OIP at the State Capitol Auditorium for state attorneys (and very well attended, by the way), I managed to get a written question in. Basically, I asked if it is ok (ethical) for a deputy AG to sit at a meeting with duct tape over their mouth and say nothing as the chair takes one illegal action after another.  It was a transparently loaded question, based on my experience at the BOE meeting. Of course, the OIP attorney explained that state attorneys have a clear responsibility to act in the “public good” (paraphrase). Actually, she replied at length. Bottom line: the state attorney should have intervened in some way.

The OIP has embarked on a strong program of education. There are videos and training guides on their web page, with even more in the works. There’s no excuse for a board or commission chair or other members not understanding Hawaii’s Sunshine Law (including open meetings and open records aspects). The Wednesday classes can earn continuing education credits for a state attorney, a reasonable incentive to attend and (hopefully) stay awake. (Yes, one still gets CLE credits at seminars even if the attendee sleeps through it.)

Hawaii could still use improvements in its Sunshine Law. For one thing, nothing requires newly appointed board or commission members to take classes or otherwise learn about it. Why couldn’t we mandate a class, or watching the video, followed by a questionnaire to demonstrate learning?

And the OIP’s opinion still remains just that, basically just an opinion. It can be ignored by an errant board with impunity. The complainer has no recourse except to take the board to court, a needlessly expensive process. Putting “teeth” into the opinions, including the possibility of personal penalties for violations (that is, not a penalty which will simply be charged back to the taxpayers), would seem like one possible step forward.

I know that many board chairs want to do the right thing. See, for example,  Applause for Legislative Federal Economic Stimulus Program Oversight Commission ( 9/19/2011).

Back to the Board of Ed meeting: parents and others interested in the Social Studies issue may not know that it’s back  on the table. If you know anyone who testified previously, why not pass on the word. Thanks!

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