Wednesday, September 21, 2011
Hawaii Board of Education tramples Sunshine Law
by Larry Geller
Tuesday’s Board of Education meeting made headlines because the Board voted on new graduation requirements and reversed itself on the number of social studies credits required (See: Board Unfazed by Ed Department's Reversal on Grad Requirements, Civil Beat, 9/20/2011).
There’s also a back story—the Board’s illegal voting on an illegal agenda.
The agenda posted below is from the BOE website (not from the officially posted agenda, which must be filed at least six days in advance of the meeting). No version of the agenda indicates that the BOE will vote on anything at this meeting. Yet they did vote.
Meeting agenda – a series of mistakes
If decision making or voting is to take place, the public needs to be informed and so it must appear on the agenda. Problem one.
At the bottom of the agenda are attachments that don’t appear on the official version, and which are not permitted anyway because they aren’t posted on the wall in public places, for example. The :”printer friendly” version of the agenda also doesn’t include reference to the attachments. Problem two.
There are two attachments: “Recommendation Memo – BP4540” and “Attachment A”. Although the first was posted along with the agenda on the BOE website, the attachment was not posted until the day before the meeting. Not only would any member of the public referring to the official agenda not know about it, but even someone checking the agenda on the BOE website would have had less than the required six-day advance notice. Problem three.
Reading the two attachments, which are supposed to be identical except for format, it turns out that they are not. The Attachment is in the form that is intended to be passed, called “Ramseyer Format”. You may have seen this format used in bills before the Legislature.
Here’s what it says on the controversial subject of social studies credit:
Now, compare that with the “Memo” version:
The two versions are not the same. Whatever the Board had in mind, it didn’t tell the public what it was going to vote on. Problem four.
As you can read, the Board also did not tell the public it would be voting on anything on the day’s agenda. But it did vote. Problem five.
Aside from the obvious violation of the Sunshine Law, an illegal vote leaves the Board’s actions open to challenge.
My testimony to the Board at that meeting was not on the merits of the new graduation requirements—I took the opportunity to inform the Board that the public did not see the attachments and that they are different anyway. I suggested that they had plenty of time to fix it because they couldn’t vote on it anyway that day. They ignored me.
But later they went into a “ten minute” executive session (done almost correctly, but close enough for government work, as they say) to discuss the Sunshine Law issue with their deputy attorney general, who was in attendance. The ten minutes stretched to about 30, and when they reconvened, they decided to go ahead and vote anyway.
So (sigh) tomorrow I’ll file yet another complaint with the Office of Information Practices.
Perhaps even our Board of Education will be able to learn. We’ll see.