 Aloha everyone and welcome to Hawaii Together on the ThinkTech Hawaii Broadcast Network. I'm Kili Ikeena, your host and president of the Grassroot Institute of Hawaii. We're down to the final weeks of the 2022 legislative session and I'm very pleased to see that there's a bill to limit the governor's emergency power. It's making its way near the finish line. We hope it crosses. Now that bodes well for transparency and for accountability here in Hawaii as limiting executive power during emergencies is an essential part of good governance. Bill we're looking at is SB 3089 and it would specify limits to the governor's emergency powers and help protect the state's traditional constitutional balance of powers. To discuss this matter today I'm so delighted to have with us two individuals who understand the issues very well. They've been working on this bill and they've been communicating to the public what we need to be looking at. Sandy Ma is the executive director of Common Cause Hawaii and Malia Blomhill is the policy director of the Grassroot Institute of Hawaii. Just so glad to continue working with both of these individuals. Sandy welcome to the program thank you so much for being here. Thank you for having us. Good to have you back. Love to collaborate with your organ. Could you tell us at the start just something a little bit about your background and what led you to work with Common Cause Hawaii. My name is Sandy Ma and I'm the executive director of Common Cause Hawaii. Common Cause is a national nonprofit dedicated to holding power accountable. Our purpose is to make sure that people can engage with government and know how our government functions and to ensure that our government is transparent and responsive to the people. And so I grew up on the east coast, went to undergrad and then to law school. I started off in the nonprofit sector on the east coast and then moved to Hawaii and practiced in the nonprofit sector here in Hawaii and then moved over and did some private practice law firm jobs moved over to government and when this opportunity came up with Common Cause to be the executive director here to participate in making our Hawaii government more accountable to the public. I jumped on this opportunity and it has been a great ride for me here in Hawaii and making sure that the people know how to engage in government. So that's how I became the executive director of Common Cause Hawaii and very much enjoyed working with other nonprofit organizations such as the Grass Institute of Hawaii. So thank you very much. Thank you Sandy and we also enjoy working with you. Appreciate so much what you and Common Cause are doing. We also welcome to the program today someone who'll be familiar to anyone who has been following the Grassroot Institute for the last decade or so and that's Malia Blomhill. Malia is from Hawaii. She started with us here and thanks to the magic and wonder of telecommunications. She remains on the staff of the Grassroot Institute of Hawaii, although she lives and frequently represents us in Washington DC. Malia, Aloha and welcome to the program. Tell us a little bit about your background. My family, my heart is in Hawaii but I also went to law school on the east coast and after some work in that general area I came to Grassroot Institute first to work on transparency of all things. We had a very large transparency project and then over time I got more involved in the policy side including transparency, still accountability, a lot of the free market work that Grassroot Institute does but I've been very interested in the issues related to civil liberties. And so I'm the author of the report of the the liberties and lockdowns report that we did last year looking at the issue of the emergency powers and Hawaii's emergency management law and that's become, you know, a real strong interest of mine as we've watched what's happened over the coronavirus pandemic. Thank you and thank you for your work at Grassroot. I'm going to start off by directing a question to you Malia. You did author Liberty versus Lockdowns which is available at the Grassroot Institute website. What have you learned about the emergency powers and the emergency management law? How would you explain what this body of law is? You know it's interesting because it's the kind of law that everyone sort of, you know, you figure it must exist. It's something, you know, it's the statute that governs exactly how the governor can act in an emergency and until about two years ago, you know, we thought about it as what to do if there's a hurricane or, you know, some sort of, you know, you know, act of God, you know, perhaps a, you know, war or military kind of emergency. And we didn't think about it in terms of a health care emergency. And that's what has really exposed the problems in it because what the statute does is it just gives the governor power to suspend laws as needed to act, you know, very quickly and decisively to deal with an emergency situation. However, because it was never created with this sort of vision of a ongoing multi-year health emergency, it has real limitations. Most notably is the, let's go with the vagueness about what happens if once the initial emergency ends, the emergency management statute says that emergency can last for 60 days because these are pretty remarkable powers that are being given to the executive, things that are, you know, almost legislative in nature, you know, the ability to basically change the law for a temporary time. So after the emergency period ends, what happens? Well, the statute says it terminates after 60 days and then it says nothing else. And that's where over the last two years we've seen a lot of frustration, because what has happened in real life, in practice, is that the governor and the mayors have just kept extending the emergency through additional proclamations. And, you know, 60 days is one thing, two years is another. And that is a very long time for an executive to have powers that go far beyond, you know, what we really assign to the executive constitutionally. So it's a necessary statute. And I don't want to create this idea that, you know, we have some sort of problem with it or that we don't understand that there needs to be a way to deal with emergencies. But one can do so without upsetting the constitutional balanced powers. So when we talk about reforming the statute, what we're really talking about is restoring balance of powers and making sure that, you know, constitutional rights are protected under it. Sandy, you're particularly interested and concerned about the transparency aspects of the emergency powers laws and how they may need to be reformed. What are your thoughts on that? You're absolutely correct there. So there were two suspensions of laws under Governor E. Day's use of the Emergency Powers Act that we were particularly concerned with. Governor E. Day suspended the Sunshine Law and the Public Records Request Act. And he suspended it for a really long time for well over a year. And this caused for great concern amongst good government groups because that affected how we were able to keep tabs on our government that affected transparency and accountability. And so there's concerns with the indefinite and prolonged and widespread suspension of our Public Records Act and our Sunshine Law. Government meetings were still going on, but we were not able to have any guidelines for how the public were able to attend these public meetings. So we're particularly concerned with suspensions of the Sunshine Law because government meetings were still occurring, even though the Sunshine Law was suspended. And so there were no guidelines in place for how the public could attend these meetings, what decisions were made at these government meetings, how the public could submit testimony and could comment. And so that was particularly troublesome to common cause and other good government groups. And another law that was suspended was our state Public Records Request. And so especially in COVID times when we didn't know how many cases there were, what stats were being taken by government to address the COVID situation, news agencies could not file a public records request to actually find out this information. And so while government was functioning, no one knew what government actions were taking place. And so that was incredibly troublesome for the public. And so these laws were suspended up until last year for the Public Records Request and the Sunshine Law was just the suspension of the Sunshine Law was just recently lifted. And so these are all things that the public needs to know about, has a right to know about. Sandy, I appreciate that, understanding these two laws that got suspended. I think some people might ask the question, what is the big deal, however? What harm does it bring to limit the Sunshine Law or Public Records Access for a short period of time? I'd be interested in either of your thoughts on that as well as whether this reflected a national trend or whether we were actually an outlier in our practice of suspending Sunshine and open records laws. Any further thoughts on that Sandy and then Malia? That's a great question. Other states did suspend their Sunshine Law and their Public Records Request, but we had the most egregious suspension of both. It was the most, ours was suspended for the longest period of time and was the most broad suspension. And so if we go back and look at states that suspended the Sunshine Law and the Public Records Request across the nation, we had the broadest and the longest suspension across the nation. So we were an outlier in that sense. And why it's important? It's important because we can't keep tabs on our government. We can't keep tabs on what our government officials are doing, what our elected officials are doing, what our public service are doing. And that's what we're here for. That's what the public is supposed to do, is to keep tabs on our government. Malia, ostensibly there must have been some purpose behind the suspension of Sunshine Law and open records laws. Our government must have been trying to accomplish something. What was it they were accomplishing? What do we know about their thinking on this? Well, if I were to be kind, which I will be for very, very briefly, it could be that in the early days of COVID, no one really knew what they were dealing with. And so there was this idea of, no one's going to be there to deal with it, or it's too dangerous for everyone to be in a room together. We're just going to, and not every state did this, but we did, we'll just stop everything and then figure it out from there. But that is the problem. And now to be unkind, there was no need ever to suspend the open records laws. Our open records law already envisions the possibility of some need for delay like this. So that was completely unnecessary. As for the Sunshine Laws, yes, the issue of having everyone in one room together was a real concern for a while. However, and there's two, there's two issues there. And I'm actually, I'm going to steal from, I noticed that Sandy's commentaries or something like that. I remember during this all, she pointed out that Zoom is not the same. And I recognize the irony of saying that, but Zoom is not the same. Not everyone has access. And these open meetings laws exist so that the public has access, so that we can see, so that we can participate. And that really got shut down. And then it has another layer of, you know, who can participate because making it virtual and keeping it virtual for so long locks people out of it. And I'm going to be honest, I think it makes it a little easier for the government to keep everyone at this virtual distance, even when it was no longer strictly necessary for health, because it's just easier to dismiss people. It's easier to control the situation when you're doing it all virtually. You don't have that messiness of having to deal with the public in person, but the public is entitled to be part of that. We need to be able to watch it. We need to be able to, you know, see how these decisions are made. And, you know, it's ironic that you see so many complaints about, you know, people didn't trust us and people kept questioning how we were handling it. You know, well, this is why, because you shut down transparency, because you were so slow to reopen it. It actually makes the problem worse. Were there any requests for information made by Common Cause or Grassroot Institute or other organizations or the media that were frustrated during this period of time because the government wasn't able to or willing to comply? I have heard, well, Common Cause did not make any requests of government during that time, but I've heard of media agencies making requests of government health organizations for COVID numbers and COVID statistics that were frustrated due to the suspension of Public Records Act. Yeah, Grassroot did a request about the deliberations for COVID. The Associated Press made a similar request and it was first pushed off underneath the excuse that, you know, they didn't have to deal with it because the governor had suspended. And then when they did finally respond to us, they said it would cost several hundred thousand dollars, which is its own problem. And possibly the topic of a different episode, but it did definitely affect the open records request that we made. One of the things that the public sees going on when records requests are denied, especially for statistics that may deal with the pandemic and so forth, is that it looks like the government is hiding something. The government may or may not be hiding something, but if public is not given access and the media is not given access to relevant statistics and so forth, it's very difficult for government to build trust. Did you sense that going on out there when these requests weren't complied with? Definitely. I mean, we are in a position where we're going to hear a lot of those kinds of complaints. And I think that almost everyone saw over the course of the, you know, especially in the early months or the first year or so, the pandemic, everyone saw this sort of slow dissolving of public trust, this draining away of the leaf that they're being heard and responded to. And the fact that you couldn't, you know, get information requests that they would be delayed, that, you know, even if you were making a request, you know, to something completely unrelated to, you know, not the Department of Health or the governor's office, but say, you know, Hart, it might take a little longer because it could, because there had been given this sort of blank check to just take longer to deal with your open records requests. Yes. Go ahead, Sandy. I think people were just so frustrated with everything that was going on and, you know, the economy and just being told to stay at home, that there was just a lot of frustration building and building and building. And so I think it just led to a lot of anger towards government in some sense. And if you don't have transparency with government, then, you know, it just, it just leads to distrust and anger towards government. Malia, when we opened the program, you referred to some other aspects of the emergency laws that need to be reformed. Could you mention a few of them? And in particular, the need to provide some kind of check and balance by the legislature on the governor's or the mayor's own powers? Everyone has something that they remember from, you know, the COVID restrictions that they, in particular, you know, just thought made no sense. You know, maybe it was, you know, rule about who you can go to dinner with or how many people or how far apart or could you walk on the street or could you not, you know, could you walk at the beach? For everyone has at least one example of something that just seemed arbitrary and irrational and frustrating. And part of that frustration, as Sandy noted, is the inability to bring it to anyone to do anything with it. You know, there's no, there's no petition, there's no voice. And that's one of the problems with the way that the emergency management statute is structured. It has no, because it can't envision something that would go on for longer than 60 days. It puts an enormous amount of power in the hands of the governor and the mayor to suspend laws, to create new penalties. One of the things that has since been addressed, but was a problem, was that there was no real idea of what was going to happen when you violated a COVID order, even if it's just, you know, are you wearing a mask while filling your gas tank kind of violation? And for a while, everyone was kind of racking up misdemeanors, because that's how unprepared we were to deal with this. And yet the only, the only to say the only word was the governor's. Usually when you get new law, when you have a change in the law that goes through the legislature, it has a process, people have a way of having a voice in what happens they can weigh in. And what happens under the emergency management statute is that that's just gone. The legislative check of the executive power is just gone. It's supposed to be temporary, but as we've seen, it isn't functioning as temporary. And that's the real, the real problem here is that we have a statute that we have now through experience learned just to put too much power in the hands of the executive without balancing it. You know, it's not to suggest that, you know, it's going to just be this sort of miracle thing where no executive will ever come up with an emergency proclamation that you won't like. The issue is, is there a way, is there a balance? Is there a place for the people's voice to come through? And that's why it needs reform. We need some sort of legislative voice and legislative check on what the governor or the mayor can do. Sandy, did you want to add anything to that? No, I think that was a great summary by Malia as to why the people's voice is so important in this process because the governor issued over two dozen, I believe, emergency proclamations for COVID. And so while we understand the importance of the emergency powers act and the need during these COVID times, we do also want to balance that with transparency and accountability and the public's right to participate and to engage in government even during COVID times. The declarations of emergency that the governor issued were supposed to expire after a certain number of days. And as you mentioned, Sandy, we had at least a couple dozen of these decrees, which appeared to extend the practices of any one emergency decree. Malia, your thoughts on that. I know you've looked into that. What was going on here? And what needs to be reformed about that? Well, this has been the topic of some legal debate because the statute is silent on what happens after an emergency terminates. It says that an emergency terminates automatically after 60 days, and then it says nothing. Now, one could argue, and I think we have, it had a guest press webinar, seminars, that implicitly means then you can't do any more because that's it. That's the end of the emergency because otherwise they could have done something to signify something else. But what has happened is that the governor has issued successive proclamations extending the emergency. And to date, no one has successfully challenged that in court. So what we have is this sort of open-ended ability to just declare emergencies until the end of time, essentially, because we haven't really seen any mechanism to prevent that. That's what the reform is. That's the reform that is needed the most is the basically the ability to stop an emergency, take it outside of the governor. In this case, we want the legislature to be able to step in and declare an end to an emergency. Thank you. One of the problems that we had with the successive pronouncement of emergency decrees is that it was hard to tell whether, it was hard to tell what the emergency was and what constituted the beginning and the ending of an emergency. Who is it that should determine when we are in a state of emergency that that requires the invoking of the Emergency Powers Act? It says in the statute that the governor is the sole decision maker on that. And it also says in the statute that an emergency is basically what the governor says it is. That's another sort of gray area. You can see why it would be necessary to have some flexibility there because by nature of it, you don't really know what an emergency could be. But there's also reason to worry because at what point is there sufficient risk to health and safety that you should be able to give these rather significant powers to the executive, which again makes it very important to be able to end an emergency because you need to be able to have somebody else, the legislature, to be able to step in and say, no, this is not an emergency. It does not warrant this use of power. So we're just going to terminate this emergency. Again, it just keeps coming back to, you need these powers but you need to be able to balance them. Sandy, you've been tracking SB 3089 and there's a likelihood of it passing. There's a likelihood of changes being made in conference committee. We've only got a minute or two left. Any thoughts about this? Well, our organization's main concern is to ensure that there is some transparency and accountability through sunshine law and public records request that's left in the bill that the public can have sunshine law and public records request. That's not strict from the oversight of the legislature. Thank you. And Malia, what would you like to see changed in SB 3089 or added or deleted? Well, I have to agree with Sandy. They keep putting in and taking out these protections for open records and sunshine law and I want those open records protections back in. I think it just came out of the last one. But I'd also like to see a mechanism where the governor basically needed approval before extending to the third and fourth and fifth emergency. So that's the other change I'd like to see. Well, it looks like the most draconian measures have been lifted. Most things that people dislike about the emergency powers requirements, whether it be masks or vaccine and certification and so forth have been lifted. Just a final thought. Is this a time to relax? Or are there things about which we need to be vigilant as a final word from each of you? We'll start with Malia. You know, I know that it may seem like it's not as pressing, but I will just remind you that the nature of the emergency powers are such that you can be right back in it like that. That the say so of the governor, which means that it's still an important issue still needs to be addressed. Sandy, we should always be watchful of our government always. Great note to end on. Thank you so much for being with us today. Sandy Ma, executive director of Common Cause and Malia Blomhill, policy director for Grassroot Institute of Hawaii. And thank you everyone for joining us. I just want to say mahalo from all of us at Grassroot Institute for your vigilance in staying alert and aware of what's going on in public policy in our state. Until next time, I'm Keeley Ikeena and we are on the Think Tech Hawaii Broadcast Network. This is Hawaii together. Aloha. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at ThinkTechHawaii.com. Mahalo.