Transparency, clarification vital to Hawaii’s emergency management

RE: TESTIMONY IN SUPPORT OF SB2151 — RELATING TO EMERGENCY MANAGEMENT

Aloha Chair Fukunaga, Vice-Chair Lee and other Committee members,

The Grassroot Institute of Hawaii would like to offer its strong support for SB2151, which would amend the state’s emergency management statute to prohibit the suspension of requests for public records or vital statistics during a state of emergency.

The bill would also clarify the definition of a “severe weather warning;” require justification for the suspension of laws; limit the length of such suspensions to the times necessary to fulfill the emergency functions; and allow the Legislature and county councils to terminate declared states of emergency, in whole or in part, by an affirmative two-thirds vote.

These are all excellent ways to preserve the intent of the emergency statute while simultaneously protecting the public interest and ensuring that emergency powers do not become a tool for unchecked executive power.

Regarding the suspension of public records or vital statistics during an emergency, Gov. David Ige at the outset of the COVID-19 crisis suspended Hawaii’s open-records and sunshine laws — an extreme response not taken by any other state governor.

Not only did his action raise questions about the health rationale for the suspension, it undermined public trust in the workings of government at a time when trust was needed most. This bill would ensure that government transparency is maintained even during a state of emergency.

There is no reason to worry that open records requests submitted during an emergency could hinder government operations. Hawaii’s open-records statute already provides flexibility to agencies that require additional time to respond, and this bill would reinforce that provision by expressly giving agencies permission to delay a response under extenuating circumstances.

The addition of reasonable limitations on the ability to suspend laws would also help protect the constitutional balance of powers. The governor and mayors need leeway to handle an emergency as needed, but they should not have carte blanche to suspend laws indefinitely or arbitrarily. Government actions during an emergency should be narrowly tailored and must demonstrate a clear connection between the actions taken and the protection of public health or safety.

As for the duration of emergencies, Hawaii’s emergency statute currently features a 60-day time limit, but it allows an emergency to be extended by proclamation. Thus, there is no protection against the governor or a mayor extending a state of emergency indefinitely, with little input or oversight from the legislative branch.

In the past few years, we have seen emergency orders used increasingly more often to address situations that do not pose an immediate threat to life, health or property — such as the housing crisis. Because the statute lacks a mechanism that would force an end to the governor’s ability to rule via emergency proclamation, the governor could use his or her emergency powers to bypass the legislative process for years on end.

A legislative check on the executive’s ability to extend an emergency would correct this problem and preserve the constitutional balance of powers. SB2151 would fulfill that purpose by enabling the Legislature and county councils to end emergencies by a two-thirds vote.

It is important that Hawaii’s emergency management law reflect the lessons we have learned over the past few years. The main lesson is that there is room to protect open government and the constitutional balance of powers without handicapping the ability of the governor and mayors to respond quickly and effectively to emergency situations.

Sincerely,

Ted Kefalas
Director of Strategic Campaigns
Grassroot Institute of Hawaii