STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL March 7, 2000 The Honorable Les Ihara, Jr. Senator, Tenth District The Twentieth Legislature State of Hawaii State Capitol, Room 214 415 South Beretania Street Honolulu, Hawaii 96813 Dear Senator Ihara: Re: Article III, Section 12 of the State Constitution - Applicability of Open Meeting Provision to Conference Committees ·We write this letter to confirm the response we provided last week, to your question as to whether the open meeting provision of Article III, Section 12 of the State Constitution applies to conference committees of the Hawaii State Legislature. Last Wednesday, we orally advised staff in your office that we agreed with the reasoning and conclusions contained in the January 10, 1991 letter of the House Majority Attorney, ' and therefore it was appropriate to rely on the letter to conclude that the open meeting provision was applicable to legislative conference committees. We explained that we came to this conclusion because 1. Conference committees perform a key legislative function necessary for the enactment of state laws; 2. Under the rules of procedure for the passage of bills adopted by the House and by the Senate, bills that have been amended by one house without the concurrence of the originating house may be passed on third or final reading only after the bills have been referred to conference committees and the committees decide upon each bill's "final form;" and 3. To make that decision, conference committee members must meet and officially 1 A copy of the letter addressed to Representative Tom Okamura is attached.
The Honorable Les Ihara, Jr.
March 7, 2000
Page2
act on behalf of their respective houses to determine the bill's "final form."
Thus because the conference committees are taking official action and
conducting the Legislature's business on behalf of their respective houses
when they determine the "fina1 form" of a bill, conference committees can
act only when a quorum of their members is present at a committee
meeting, and a majority of their members vote for the bill's "final form."
Discussion
Essentially, the House Majority Attorney letter reasons and concludes that
(1) The Constitution's open meeting provision applies to every legislative
committee meeting;
(2) While the open meeting provision is silent as to whether committee
members must vote during the committee's open meeting, the
accompanying constitutional history makes clear that "the delegates
contemplated (i) all actions and decisions of a committee of the legislature,
including voting on matters referred to it, to be carried out at committee
meetings open to the public, and (ii) the committee report on a bill which the
committee recommends for passage [only be] a reflection and record of
the committee's actions and decisions . . . at the committee meetings," see
page 3;
(3) Whenever a matter is referred to a committee, the committee must have
a quorum present before it can officially act on the referral because it is
well-recognized that quorums are required to conduct official business, and
the language of the Constitution's open meeting provision, more particularly
the phrase 'meeting of a committee . . . held for the purpose of making
decision," "means a meeting of a Committee assembled to act legally and
officially on matters referred to the committee," see page 6; 2
(4) "Under parliamentary rules and in the contemplation of the
Constitutional Convention, a committee report recommending a bill for
passage and circulated after the committee meeting is a record of the
decisions and actions already taken on the bill by the committee at its
decision-making meeting [and since the] report itself is neither the
instrument nor the forum for decision making, . . . decision
2 The House Majority Attorney's letter went on to observe: "That the
delegates were familiar with the legislative practices and procedures, and
action, is not only indicated by the Constitutional Convention debates but
may also be presumed on the part of legislative bodies including
constitutional conventions." Id.
The Honorable Les Ihara, Jr.
March 7, 2000
Page 3
making cannot be determined by or be dependent upon the signatures of
the committee members individually solicited and obtained outside of the
committee meeting," see page 7.
It is well-established that a legislative conference committee
is two committees, one appointed by each house, [which] is normally
appointed for a specific bill and its function is to gain accord between the
two houses either by the recession of one house from its bill or its
amendments or by the further amendment of the existing legislation or by
the substitution of an entirely new bill .... . Solutions agreed upon by a
conference committee must be reported to and adopted by bath houses in
order to have a completed "act" of the legislature
Sutherland State Const § 11.08(5th Ed). This is confirmed by House Rule 16.1
which provides in part that conference committees are "appointed for the
purpose of resolving differences between the House and the Senate on
any matters where the joint agreement of the House and the Senate are
required.
The first and third paragraphs of Article III Section 12 of the State
Constitution provide in pertinent part as follows:
Organization; Discipline; Rules; Procedure
Section 12. ... Each house shall .... . determine the rules of its proceedings
and keep a journal. ...
Every meeting of a committee in either house or of a committee comprised
of a member or members from both houses held for the purpose of making
decision on matters referred to the committee shall be open to the public.
Various rules of the Senate and the House confirm that conference
committee meetings must be open to the public See Senate Rule 20
("Conference Committee meetings and decision-making sessions shall be
public"); Senate Rule 24(I) "All committee meetings held on matters
referred to it by the Senate shall be open to the public unless otherwise
ordered by the Senate or otherwise provided by these Rules"); House Rule
16.4 ("It is the position of the House that conference committee meetings
and decision-making sessions shall be public"); and House Rule l9 (Every
committee of the House or of a committee comprised of a member or
members from the House and the Senate held for the purpose of making
decisions on matters referred to the committee shall be open to the public").
The Honorable Les Ihara Jr. March 7, 2000 Page 4 Most pertinently, in language that differs from House Rule 36.1 only with respect to references to the other house, Senate Rule 49(1) establishes that the principal function of a conference committee is to determine the "final form" of a bill to facilitate its passage at third or final reading. No bill shall pass third or final reading in the Senate, unless printed copies of the bill in the form to be passed have been made available to the members of the Senate for at least 48 hours. "form to be passed" means the form in which a bill is to be (a) passed on third reading in the Senate/House, (b) concurred to by the Senate after amendments have been made by the House, or (c) passed by the Senate after a Conference Committee has agreed upon it. Given this responsibility and the construction which the 1991 House Majority Attorney letter gives the open meeting provision of Article III, Section 12, i.e., that a legislative committee can only act in furtherance of the Legislature's responsibilities when a quorum of its members is present at a meeting open to the public and its members cast votes during that open meeting we advise that conference committees conduct their assigned tasks of fashioning the "final form" of bills for passage at third reading at meetings open to the public, act only when a quorum of the conference committee's members are present, and make decisions on the bill that are referred to them for resolution only by voting during the open meeting. 3 Very truly yours, Charleen M. Aina Deputy Attorney General APPROVED: Earl I Anzai Attorney General 3 If we understand the rules correctly, Senate Rules 21(2) and 24(4) require this result. The forever provides that "[a] favorable vote of a majority of the members present at a decision- making meeting duly constituted with a quorum is required to report a matter out of committee and the latter directs that a "committee shall report whenever a majority of the members present at the decision-making meeting duly constituted with a quorum is in favor of reporting the bill or resolution out of the committee."
HOUSE OF REPRESENTATIVES STATE OF HAWAII STATE CAPITOL HONOLULU, HAWAII 96813 January 10, 1991 Representative Tom Okamura House of Representatives State Capitol Honolulu, Hawaii 96813 Dear Representative Okamura: This refers to your request for an interpretation of the open meeting provision of Article III, Section 12 of the Hawaii Constitution which provision reads as follows: "Every meeting of a committee in either house or of a committee comprised of a member or members from both houses held for the purpose of making decision on matters referred to the committee shall be open to the public." More particularly, the question presented is what must be required of a meeting of a committee of the House in the conduct of decisions made and actions taken to be open to the public pursuant to Article III, Section 12 of the Hawaii Constitution. For the purposes of this discussion, it is assumed that the committee meeting notice requirement is met and the opportunity for public witnesses who wish to testify at committee hearings or attend committee meetings is also provided. Background: The open meeting provision was proposed and adopted by the 1978 Constitutional Convention and ratified by the electorate at the general election of 1978. The committee on Legislature of the Constitutional Convention reported on the open meeting provision in Standing Committee Report No. 46 as follows: Representative Tom Qkamura January 10, 1991 Page 2 "The amendment to Section [12] requires that all decision-making meetings of a legislative committee shall be open to the public. While your Committee is informed that such is the current practice of both houses of the state legislature by their respective rules, it finds that the public' s right to know what their legislators are deciding is deserving of constitutional protection. This amendment, however, is not intended to require that certain kinds of meetings, including organizational meetings, partisan caucuses and certain hearings involving the invasion of a person's right to privacy if made public, shall be open to the public." Proceedings of the Constitutional Convention of Hawaii of 1978, Volume 1, at Page 603. At the debates in Committee of the Whole, Delegate Nishimoto, as chairman of the Committee on Legislature, recommended the adoption of the open meeting provision and stated: "Two substantial amendments have been offered to Section [12] of Article III. The first relates to a form of 'sunshine' protection of the public's right to know what takes place at decision-making meetings of the legislature. It was felt that this right should be constitutionally protected rather than left to the discretion of the house or the senate." Proceedings of the Constitutional Convention of Hawaii of 1978, Volume II, at Page 278. When Delegate Chu sought an amendment to Section [12] to add a constitutional requirement that a record be included in the journal of all committee decision-making sessions to "guarantee responsible, open action within the committee" and to provide a source "to find out in the committee's deliberations how many votes went this way and how many that way," Delegate Nishimoto responded as follows: "I rise to speak against the amendment. As to the language contained in paragraph 1 of Section [12], the new language is unnecessary. A record of all committee decision-making sessions is already provided for by the state Representative Tom Okarnura January 10, 1991 Page 3 legislature. The legislative standing committees are required to submit a committee report on bills which they recommend for passage and since this recommendation is determined in the decision-making session, the committee report would reflect what occurred in these meetings and the signatures of the committee members would indicate their position or the position they took on each bill." Proceedings of the Constitutional Convention of Hawaii of 1978, Volume II, at Page 316. In the context of the debates, it is plain that in considering the open meetings provision, the delegates contemplated (i) all actions and decisions of a committee of the legislature, including voting on matters referred to it, to be carried out at committee meetings open to the public, and (ii) the committee report on a bill which the committee recommends for passage is a reflection and record of the committee's actions and decisions which took place at the committee meetings. Accordingly, ambiguity, if any, in the Rules of the House of Representatives relating to committee meetings should be construed in a manner most consistent and congruent with the spirit and intent of the open meeting provision of the Hawaii Constitution as reflected in the reports and debates of the Constitutional Convention. Rules Affecting Committee Meetings And Reports: House Rule 19 incorporates the constitutional requirement of open committee meetings: "Every committee authorized and or established under Part III of the Rules of the House relating to Committees shall be a committee of the House. Every meeting of a committee of the House or of a committee comprised of a member or members from the House and the Senate held for the purpose of making decisions on matters referred to the committee shall be open to the public; provided that certain kinds of meetings, including executive sessions, organizational meetings, partisan caucuses and meetings the subject of which involves the invasion of a person's right to privacy if made public, need not be open to the public." Representative Tom Okamura January 10, 1991 Page 4 House Rule 11.5(1) also states that: "(1) Meetings, including decision-making sessions, of standing committees shall be public. Notice shall be publicly posted or announced on the House floor during the session day at least 48 hours prior to such meeting. Notice of meetings may be waived or shortened at the discretion of the Speaker upon good cause shown." With respect to committee action on reports recommending a bill for passage, House Rule 11.6(3) provides as follows: "(3) A report recommending a bill for passage shall clearly state the legislative intent and purpose of such bill; and such report shall contain the signatures of not less than a majority of the committee members who are in favor of the recommendations. Any such signature noted 'with reservations' shall be deemed to be in favor of the recommendations. A standing committee's recommendation on a bill under House Rule 11 is perforce an act and decision of the committee, and a committee can act and decide only when properly assembled with a quorum. "When failure to obtain a quorum occurs, there can be no business transacted except the devising of necessary measures to obtain one, and take up such matters as the time to which to adjourn, and to take a recess or adjourn." Cushing's Manual of Parliamentary Practice, 1961, at Pages 31 and 32. "The presence of a quorum is required in order for a committee to act legally and officially. A committee cannot legally transact business, and it is irregular to proceed to the consideration of business, in the absence of a quorum. The quorum of a committee must meet formally to transact business, and opinions of members of a committee cannot be taken separately, nor should a report be circulated Representative Tom Okamura January 10, 1991 Page 5 securing signatures of a majority of the members of a committee and this report be submitted as a report of the committee." Mason's Manual of Legislative Procedure, 1989, Section 63.3, at Page 424. "A committee can act only at a meeting and not by separate consultation and consent, and a committee has no authority to report anything not agreed upon when actually assembled. Everything done by a committee must have been submitted to the committee in actual session, and an opportunity must have been given for consideration and discussion. Any exception to this rule should not be recognized unless clearly authorized by the rules." Mason's Manual of Legislative Procedure, 1989, Section 625, at Page 433. Mason's Legislative Manual specifically proscribes the circulating of a report to secure signatures of a majority of the members of a committee as the report of the committee unless the subject of the report was agreed upon when the committee was actually assembled with a quorum. Quorum: Quorum is the number of members who must be present in a deliberative body before business may be transacted. Black's Law Dictionary, 1978 Edition. The total membership of a body is to be taken as the basis for computing a quorum. The House which creates a committee of the House has the power to fix the quorum of the committee. "The authority which creates a body has the power to fix its quorum. The presence of all or a certain number or proportion may be required. The body itself does not have the authority to require the presence of more than a majority to enable it to act unless that authority was specifically granted to it." Mason's Manual of Legislative Procedure, 1989, Section 501, at Pages 329 and 330. Unless the House by its rules provide for a smaller quorum, a majority of all the members of a committee entitled to vote Representative Tom Okamura January 10, 1991 Page 6 constitutes a quorum. See Cushings page 32 and Mason's page 330. Under House Rule 11.6(3), a report recommending a bill for passage shall contain the signatures of not less than a majority of the committee members who are in favor of the recommendations. Thus, a quorum of at least the majority of the members is currently required for a meeting at which the decision for the recommendation of a bill for passage is acted upon by the committee. Although the open meeting provision in the constitution does not expressly speak to a quorum requirement, it is plain that the Constitutional Convention's reference to "[e]very meeting of a committee in either house or of a committee comprised of a member or members from both houses held for the purpose of making decision on matters referred to the committee" means a meeting of a committee assembled to act legally and officially on matters referred to the committee. House Rules and Cushing's Manual of Parliamentary Practice which governs the House when not inconsistent with House Rules have always required the presence of a quorum for a committee to act legally and officially. (See House Rule 11.6(3) and Gushing's at pages 31 and 32.) That the delegates were familiar with the legislative practices and procedures, including the quorum requirement to validate committee assembly and action, is not only indicated by the Constitutional Convention debates but may also be presumed on the part of legislative bodies including constitutional conventions. The intent of the constitutional convention as drawn from the debates of the delegates that all actions and decisions of a committee must be carried out at committee meetings open to the public would be met so long as a committee of the House meets with a quorum present, and every act or decision of the committee not excepted by the constitution is conducted at the meeting after due public notice. Committee Meeting Open To The Public: As intended by the Constitutiona1 Convention, a committee meeting "open to the public" means more than allowing public citizens physical access to the committee meeting room. Such a meeting presumes the conduct of the meeting by the committee to be carried out in a manner that will enable the public "to know what their legislators are deciding." If a recommendation for the passage of a bill is determined at a committee meeting lacking the quorum required for such recommendation under House Representative Tom Okamura January 10, 1991 Page 7 Rule 11.6(3) with the contemplation of circulating the committee report after the meeting, the validity of the recommendation is rendered suspect, and the public would not have known the positions taken by those legislators who had not attended the meeting and whose signatures were later obtained to make up the number of signatures required under House Rule 11.6(3). The circulation of the committee report under such circumstances would appear to militate against the intent of the Constitutional Convention to assure the public's right to know what their legislators are deciding. It is also noted in Mason's that: "A committee should report only such recommendations as have been agreed upon by a majority vote at a meeting to which all members were invited, and at which a quorum was present." Mason's Manual of Legislative Procedure, 1989, Section 664, at Page 449. Under parliamentary rules and in the contemplation of the Constitutional Convention, a committee report recommending a bill for passage and circulated after the committee meeting is a record of the decisions and actions already taken on the bill by the committee at its decision making meeting. A report itself is neither the instrument nor the forum for decision making. Thus, decision making cannot be determined by or be dependent upon the signatures of the committee members individually solicited and obtained outside of the committee meeting. Legislative Pal icy And Intent Regarding Meetings Open To the Public: Act 166, Session Laws of Hawaii 1975 was enacted to provide for the Hawaii Sunshine Law. The policy and intent of the Hawaii Sunshine Law is stated in Section 92-1, Hawaii Revised Statutes: "§92-1 Declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable Representative Tom Okamura January 10, 1991. Page 8 method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussion, deliberations, decisions and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legislature declares that: "(1) It is the intent of this part to protect the people's right to know; "(2) The provisions requiring open meetings shall be liberally construed; and "(3) The provisions providing for exception to the open meeting requirements shall be strictly construed against closed meetings." (underscoring added) The Hawaii Sunshine Law, however, does not apply to the legislature by virtue of Section 92-10 of the Hawaii Revised Statutes which states that the houses of the legislature shall be governed by the respective rules and procedures of the senate and the house of representatives. The exemption of the legislature from the Hawaii Sunshine Law was necessary to observe and adhere to the requirement under Article III, Section 12, of the Hawaii Constitution which provides that each house shall determine the rules of its proceedings. The exemption notwithstanding, it would appear that the "policy of this State that the formation and conduct of public policy the discussions, deliberations, decisions, and action of governmental agencies shall be conducted as openly as possible" declared by the legislature in 1975 was embraced by the constitutional convention in 1978 and applied to the legislature insofar as the committee meetings of the legislature are concerned.