Elections Commission deadlocks on OIP appeals alleging chair removed commissioner; approves AG letter on minutes

The Elections Commission on Oct. 1 considered a string of Office of Information Practices appeals alleging violations of Hawaii's Sunshine Law, including claims that the chair muted and removed a sitting commissioner during meetings and that the commission did not allow public testimony on a contested agenda item.

The commission debated deputy attorney general (DAG) Ching's written responses to multiple appeals (listed in the meeting as appeals 26-10, 26-13, 26-07 and 26-15). DAG Ching told the commission that one of the issues "relates to allegations from the August 27 meeting" and that his office had found the earlier meeting "did not provide the opportunity for the public to provide testimony on agenda item 4," but he said that harm was mitigated because the public was permitted to testify at a subsequent meeting.

Commissioner Cushni, who brought the appeals, said the DAG's approach was insufficient. "The DAGS response improperly refrains clear Sunshine Law violations as discretionary meeting management," Cushni said, adding that the statute requires public testimony to be taken at the meeting where the matter is considered and cannot be cured retroactively. He said the chair's actions—muting his microphone and removing him from deliberations—prevented him from following the parliamentary appeal process he said Robert's Rules of Order requires.

Commissioners debated whether Robert's Rules or the commission's own rules govern appeals of the chair. DAG Ching told the body that the commission's rules (cited in the meeting as Hawaii Administrative Rules chapter 3-170) and the Sunshine Law ultimately control and that the commission's rules do not adopt Robert's Rules wholesale.

The commission took roll-call votes on the deputy AG's responses to the appeals. On the response to appeal 26-10 the clerk recorded mixed votes and the chair later stated the motion did not pass. A combined motion to approve DAG Ching's responses to appeals 26-13 and 26-07 likewise failed on roll call. A motion to approve the response to appeal 26-15 also failed.

The body then addressed appeal 26-12, which focused on whether the commission was complying with HRS §92-9 (minutes). Commissioner Cushni moved that the commission acknowledge it was violating HRS 92-9 by not including requested additions and by not fully recording substantive matters; he read statutory text noting minutes must show "the substance of all matters proposed, discussed, or decided" and that "any other information that any member of the board requests to be included... shall be included." That motion failed on roll call.

Separately, the commission later voted to approve the attorney general's letter concerning the minutes for the August 27 meeting. The roll call on that motion recorded six Yes votes and two No votes, and the motion passed.

The meeting record shows repeated calls from several commissioners for formal Sunshine Law training and for clearer procedures about how members submit materials for meeting packets. One commissioner noted that the commission had received about "176 pages of letters" related to an appeal and asked how an individual commissioner's submission would be included in that material.

What happens next: because motions to adopt the DAG's responses failed on several appeals, DAG Ching said the office would still file a formal response but would note that the commission did not authorize a response on the merits. The commission adjourned after approving the AG letter on minutes and scheduling follow-up procedural improvements was suggested.

(Quotes and outcomes above are drawn from the meeting record and the commission's roll-call votes.)