In Local Controversy, ACLU of Hawai'i Supports Public Official's Free Speech Rights

Affiliate: ACLU of Hawaii
July 12, 2000 12:00 am

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HONOLULU, HI — Citizens who serve on public boards and commissions have a right to free speech, the American Civil Liberties Union of Hawai’i said in a friend-of-the-court brief filed on behalf of a local official.

“For those people who think the ACLU only fights the government, here’s a case where we are supporting the right of public officials to speak on policy issues without sacrificing the authority of their offices,” said Brent White, legal director of the ACLU of Hawai’i.

The ACLU is supporting Maui County’s effort to overturn a federal court order barring a county planning commissioner from considering a permit for a proposed housing development by Maui Land & Pineapple Company at Mahinahina, Maui.

The court ruled that Commissioner Joseph Bertram must not participate in proceedings on the permit, because he has previously spoken against zoning and land use boundary amendments for the project at a county council hearing.

“Members of the public who agree to serve part-time as commissioners must not be prevented from speaking out on policy issues, so long as they can fairly consider the matters before them,” said attorney Chris Parsons, who prepared the legal brief on ACLU’s behalf. “A commissioner can be disqualified from considering a permit only where his or her public remarks fairly indicate prejudgment of the particular application. That is clearly not the case here.”

Commissioner Bertram testified before the Maui County Council that “to do the right thing would be to preserve [the project site] as open space, or to be part of our open space system.” He urged the council not to amend zoning code or state land use boundaries to accommodate the project.

Nonetheless, the county council approved the changes, thereby establishing a policy that the development should go forward. The developer then proceeded to ask the planning commission for a Special Management Area permit, which is intended to ensure that shoreline development does not unnecessarily deplete coastal resources. It was at this point that Maui Land & Pineapple moved to have Commissioner Bertram and one other commissioner excluded from the permit proceedings.

“Developers must not be permitted to use disqualification as a tool either to silence public discussion of policy or to hand-pick friendly commissioners to consider their applications,” said Brent White.

In its legal brief, the ACLU argues that the planning commission does not have the authority to reverse the county council’s decision to allow Maui Land & Pineapple to develop on the site.

However, the ACLU said, it is the planning commission’s duty to make sure the project complies with the Coastal Zone Management law. In forcing Mr. Bertram to recuse himself from the permit proceedings, the Circuit Court suggested that he will blatantly disregard his sworn duty to apply the law as it is written. Although Bertram initially spoke out against the development of the site, there is absolutely no basis to believe that he can or will overturn the county council’s decision.

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