2007-03-06 Proceedings Before the Public Works Comm on February 21 2007 Concerning Bill 51

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Ms. Brenda Ford March 6, 2007 Page 2 this was the result of innocent oversight, and not in any way a deliberate attempt to deny Ms. Whittington an opportunity to testify. Our conclusion that this was not a deliberate attempt by anyone to censor Ms. Whittington is buttressed by an entry in a local blog' concerning this matter. In this February 28, 2007, entry, Ms. Whittington admits this was all the likely result of innocent miscommunication and lack of familiarity with the videoconferencing equipment and process.2 One of the salient issues concerning this matter is whether it made any difference Ms. Whittington identified herself as a County employee, and that she was not at the Council Room in Hilo to testify "in her personal capacity." In discussing this matter with the OIP, it is their opinion (and we agree) that it makes no difference with respect to the application of the State Sunshine Law. So long as Ms. Whittington wished to testify, she should have been afforded the right to do so. Another issue is whether a member of the public (or any person, as the present case involves a government representative) "waives" his or her right to testify, if they do not testify during the portion of the agenda that calls for public testimony (normally at the beginning of the meeting). Simply put, does the person have the right to "change his/her mind," and is the board then obliged to hear the testimony at a later part of the meeting. In discussing this issue with the OIP, the conservative and recommended approach is to allow such testimony, since the listening public would be denied the opportunity to hear the input of the speaker, who presumably was motivated to speak after hearing what had transpired at the meeting. So long as the Council had not yet begun deliberating on the matter, testimony should be received. Unfortunately, in the present case, we cannot ascertain whether Ms. Whittington expressed her desire to testify before or after the Committee began deliberating on Bill 51. Based on the above, it is our considered recommendation that the Committee re-agendize the above bill for action by the Public Works Committee. Since there appears to have been a violation of the Sunshine Law (albeit an unintentional one), it is necessary the Committee rehear the bill to protect the "Blog" is short for"Weblog," and is defined by Merriam-Webster as"a Web site that contains an online personal journal with reflections, comments, and often hyperlinks provided by the writer." 2 Ms. Whittington purportedly stated in pertinent part as follows: "It was the first time video conferencing took place from Hilo to the Sheraton Keauhou Resort&Spa. From my viewpoint it was chaotic and a few things need to be worked out. I'm confident the Council staff will fine tune these issues. They are talented and know what to do."