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HomeMy WebLinkAbout2021-12-16 Merit Appeals Board MinutesREGULAR SESSION Merit Appeals Board Hilo Council Chambers Hawaii County Building 25 Aupuni Street, First Floor, Room 1401 Hilo, Hawaii December 16, 2021 (Thursday) Call to Order (Item 1) The regular meeting of the Merit Appeals Board, County of Hawaii, was called to order at 10:01 a.m. by Chair Gabriella M. Cabanas, at the Hilo Council Chambers, Hawaii County Building, 25 Aupuni Street, First Floor, Room 1401, Hilo, Hawaii, on Thursday, December 16, 2021. Roll Call — Present Ms. Gabriella M. Cabanas, Chair Mr. Mel Ventura, Vice -Chair Ms. Kate De Soto, Member Mr. Charles Kunz, Member Ms. Gay Mathews, Member Also Present Mr. J Yoshimoto, Assistant Corporation Counsel, Office of the Corporation Counsel Mr. Waylen L. K. Leopoldino, Acting Director, Human Resources Department Ms. Glynis Yamada, Secretary -Reporter, Human Resources Department Mr. Relley Araceley, Council Services Coordinator, Office of the County Clerk As part of the response to the threat of COVID-19, Governor David Ige issued an Emergency Proclamation Related to COVID-19 dated November 29, 2021, suspending Hawaii Revised Statutes Chapter 92, Public Agency Meetings and Records, to the extent necessary to enable boards as defined in Section 92-2, to conduct meetings without any board members or members of the public physically present in the same location. This meeting will be held through a combination of some board members being physically present at the meeting location and some members participating by interactive video conference through ZOOM. Only persons that are present for the particular item on the agenda will be allowed in the meeting room. Each person will be required to wear a face mask and maintain six feet physical distance from any other person as required by law. Merit Appeals Board Call to Order (Item 1) December 16, 2021 CHR. CABANAS: Good morning. The regular meeting of the Merit Appeals Board is called to order at 10:01 a.m. on this day, December 16, 2021. We have quorum today, all five Board members are here. I'm Gabriella Cabanas, Chair of the Merit Appeals Board. Joining me in the Council Chambers at the Hawaii County Building at 25 Aupuni Street in Hilo, Hawaii, are the following: Mr. Mel Ventura, Vice -Chair. Good morning, Mel. MR. VENTURA: Good morning and aloha. CHR. CABANAS: Good morning. And we have Ms. Gay Mathews. MS. MATHEWS: Aloha, kakahiaka. CHR. CABANAS: Good morning, Gay. And Mr. Charlie Kunz. MR. KUNZ: Good morning. CHR. CABANAS: Good morning, Charlie. And Ms. Kate De Soto. MS. DE SOTO: Good morning. CHR. CABANAS: Good morning, Kate. We are also—we also have our Assistant Corporation Counsel, Mr. J Yoshimoto. MR. YOSHIMOTO: Good morning, Board members. CHR. CABANAS: Good morning, J. And our Acting Director of Human Resources, Mr. Waylen Leopoldino. MR. LEOPOLDINO: Good morning. CHR. CABANAS: Good morning, Waylen. And our Secretary -Reporter, Ms. Glynis Yamada. MS. YAMADA: Good morning. CHR. CABANAS: Good morning. Addendum to Agenda (Item 2) CHR. CABANAS: Looking at our agenda, there is no addendum to the agenda. Page 2 Merit Appeals Board December 16, 2021 Statements from the Public (Item 3) CHR. CABANAS: There are no "Statements from the Public"—according to our Secretary - Reporter. Approval of Minutes (Item 4): CHR. CABANAS: There are no minutes to approve. Communications (Item 5) CHR. CABANAS: No "Communications." New Business (Item 6) Presentation By Assistant Corporation Counsel J Yoshimoto Concerning The Recent Updates To The Sunshine Law, Effective January 1, 2022 CHR. CABANAS: So we are now on Number 6, "New Business" for discussion and appropriate action. This involves a presentation by our Assistant Corporation Counsel J Yoshimoto concerning the recent updates to the Sunshine Law, effective January 1, 2022. MR. YOSHIMOTO: Okay. CHR. CABANAS: So, J, you may begin. MR. YOSHIMOTO: Okay. Thank you, Madam Chair. Good morning, Board members. So today I'd like to cover a presentation regarding the updates to the Sunshine Law. As many of you know, the Governor's Proclamation has been in effect for quite some time now and has suspended certain aspects of the Sunshine Law. My understanding is the Governor's office will stop his proclamation in terms of suspension of the Sunshine Law and, therefore, the Sunshine Law will revert to what the State Legislature passed last year. And so, the purpose of this presentation is to provide the Board with an update as far as impacts as to how we hold our meetings. And so, if there's any questions along the way, I'm happy to take the questions as they come along. So, everyone should have a handout before them (SEE ATT. A). And I'm going to go through slide -by -slide. So, as I said earlier, the purpose of today's training is to review the updates to the Sunshine Law, specifically, notice requirements new meeting notice requirements requirements when holding remote meetings, and all requirements are effective January 1st 2022. Page 3 Merit Appeals Board December 16, 2021 A brief review, purpose of the Sunshine Law is to protect the public's right to know, open governmental process to public scrutiny, and public participation thus, discussions, deliberations, decisions, and actions of governmental agencies shall be conducted as openly as possible. And next slide—agenda requirements. The agenda needs to describe all agenda items with reasonable specificity. So what does that mean? Basically, it means to ask the question—does the agenda provide enough information that members of the public could decide whether to participate in the meeting or not? So the "Neighbor Test" is something that is more like a commonsense test. Basically, it's asking someone that is not familiar with the Board to review the agenda and, if he or she cannot tell what subject the Board will be talking about at the meeting, then the agenda needs further clarification. So, it's like a reasonable person test and our agendas, again, are reviewed by the Chair as well as Glynis and myself and so those things are usually taken care of but always good to know as far as what's required for the agenda. Okay, next slide notice requirements. We always need to include in instructions at how to request an auxiliary aid or service, which is done as a matter of course. And, of course, language regarding the executive session must be put on the agenda. There is leeway—and so, executive session language is put on the agenda; however, keep in mind that if there is a need to go into executive session on an item that is not necessarily agendized, we still could do so. We have some leeway with that, but we always should put it on the agenda if it is anticipated. Okay, next slide—notice requirements. Of course, we need the date, time, and the place. At least one—so on this slide—we note here that at least one meeting location that is open to the public shall have audiovisual connection to enable public to provide testimony. And this will tie into other requirements that we'll cover a little bit later in the presentation. So, basically, if we're having an in-person meeting as we—as we're doing today, then there is no requirement for there to be an audiovisual location for members of the public. However, if we do have remote access, then there're going to be other requirements that where we would have to provide a location for members of the public to view the meeting audio -visually through a computerusually, like, a computer system or something to that effect—and have that site open to the public. And we'll get into that today. Okay. Continuing on—new notice requirements. Email and mailing address this is already done but, of course, must include electronic and postal contact information for public to submit testimony before the meeting. Inform members of the public on how to contemporaneously remotely view the meeting of the video and audio of the meeting through internet streaming or other means, and provide oral testimony in a manner that allows the Board members and other participants to hear testimony by internet or phone or by other means. Page 4 Merit Appeals Board December 16, 2021 List all locations open to the public and specify whether the meeting will continue without that location or be automatically recessed to restore communication when connection is lost. So, this is a key component because if, as we know, in remote meetings, if there are problems with the connection, the notice needs to state what will—what the procedure will be in case the connection goes down. So, the public can access the meeting, after interruption to communication and/or when the meeting will be continued to date and time, if interruption last more than 30 minutes. So, if an audiovisual connection goes down, then there will be a procedure that we follow to try and reestablish the audio video connection. And, if that's not possible, we can try to do it just via audio—say, like, telephone, which is a probably a more reliable source. But that also has a few restrictions that we'll go into the next few minutes. Okay. Effective January I", boards and commissions will have the option to hold remote meetings by interactive conference technology. As you know, we've done Zoom. We also can do Webex, Microsoft teams, videoconferencing—there isn't really any limitations to the technology as long as it's accessible to the public. Other requirements we must provide at least one location open to the public. So, if we do have a remote meeting by having it available via Zoom for one of the members of the Board, then we have to open at least one location open to the public. And that location must have a guaranteed audiovisual connection. So, courtesy locations, also known as other locations, open to the public may be provided for convenience of the public, however, if the connection is lost or disrupted at a courtesy location, there is no requirement to stop or terminating the meeting. Notice requirement—all locations open to the public need to be on the notice and must specify whether the meeting will continue without that location or be automatically recessed to restore communication when communication is lost. Importantly, a quorum of the board members are required to be visible and audible throughout the meeting. Other participants are not required to be visible. Board members participating remotely from a non-public location shall state who, if any, is present with them at the location. And that's, again, just to clarify or safeguard the public's right to know as far as if you are participating, say, for example, from your home or office or wherever you are that there's no one else with you in the room that's participating in the meeting. And, if they are, that could be okay as long as you state that for the record. Although, for the purposes of our meeting, I would not recommend that, of course. You should, for the most part, be participating by yourself—if you're participating remotely. At the start of the meeting, the chair is required to announce the names of participating board members. Our Chair has done that. All votes shall be conducted by rollcall, which we have Page 5 Merit Appeals Board December 16, 2021 been doing. Unless unanimous, although I would say it's always best to take rollcall anyway unless, of course, it's approval of minutes or adjournment—that can be done via voice vote. But the procedure would be rollcall in case there are any issues. And, actually, in my experience from time to time—it has happened but someone has objected to adjourning a meeting sometimes. But I don't anticipate that happening here. But, anyway, just as a FYI that it does happen in some crazy times. More remote meeting requirements when practicable, boards must record meetings and make the recording electronically available to the public as soon as practicable after the meeting and until a time as the minutes are posted. Again, when practicable. I don't know—Glynis— Executive meeting session—chair must announce names and titles of authorized participants that's so there's a clear record. All authorized participants shall conform—confirm that no unauthorized person is present or able to hear them that should be a "them"—at their remote location or via audiovisual connection. The person organizing the executive session shall confirm that no unauthorized person has access to the executive meeting. And those safeguards are done and in place for our meetings as well. What happens if the meeting connection is lost? Meeting shall be automatically recessed for up to 30 minutes. If the connection isn't restored within 30 minutes, the board must continue to another date and time or terminate the meeting. Note the meeting notice should include how the public can access the meeting after an interruption to communication and/or when the meeting will be continued to date and time, if the interruption lasts more than 30 minutes. If there's no notice, then the meeting must be terminated. So, for our purposes, we're going to include that language so the public has a—knows what the procedure will be in case that should happen. What happens if the connection is restored? So, the meeting can reconvene if, of course, the audio -video communication is restored or if audio only communication is established after an unsuccessful attempt to restore audiovisual communication. So, as mentioned earlier, we could do it by just voice. If only an audio connection is available after audio -video connection has been lost, all members must, of course, state their names before speaking so the record is clear. Any visual aids available to the board shall be available to all meeting participants within 15 -minutes of losing visual connection. If visual aids cannot be provided to all participants, then that agenda item shall not be acted upon. And, of course, that's due to the fairness of keeping—ensuring the fairness of our proceedings. Recommendation includes visual aids and board packet or post online at time of the meeting. Page 6 Merit Appeals Board December 16, 2021 Okay, let's see. So, in summary, new notice requirements include email, mailing address for public testimony—which we already do. Include all public locations—we don't do that now, so if we do have remote participation then we're going to be able—we must provide the those other locations for the public to be able to view the meeting. Include how to access the meeting and provide testimony remotely that will be included in the notice, if we need to do that, and include what happens if the connection is lost. In addition, a quorum of board members must be visible and audible. Chair must announce all participating members at the beginning of the meeting, Board members must state who else is present if they're at a remote location and all voting must be done by rollcall votes. For the most part, we are following these procedures. Any questions? Office of Information Practices can provide further guidance on the Sunshine Law. There are different handouts regarding to the updates (SEE ATT. B). I think there's about three different handouts that I can email to you if you would like to look at the specific provisions that's submitted or provided by the Office of Information Practices, which oversees the Sunshine LawI can email those to you. But what you got today was the summarized version of the major changes. And so, for the most part, if we hold in-person meetings, it's pretty straightforward. If we do remote meetings, that's fine as well. We just need to add additional participation options for members of the public. Any questions? CHR. CABANAS: I have one, J. What would be the possible remote locations? MR. YOSHIMOTO: So, the remote location—well, I see—remote location could simply, as I see it, just be our Council Chambers here, right. So, we could invite them here, then I would view that this location to be sufficient. Another remote location could be Aupuni Conference Center things of that nature. Yeah. But I think in those situations as I envision it, the remote locations would be where the board is closing the meeting to members of the public in-person but allowing them to view it and participate in remotely. So, what the law wants to do, at least from what I understand that the policy is to make sure that members of the public who may not necessarily have access to internet at home, could go physically to someplace and view it. As I recall back during the early stages of the pandemic, the Puna Conference Room across there was used as a remote location where people would testify this is for the County Council—and they would testify there. There'd be a staff person monitoring to make sure the connection is good, no one steals the computer, things like that, right. And then, the Councilmembers would be here. So that could be a scenario. In that form it's different because they could not could they frequently have a lot of people come and testify on issues of concern to them, right, where Page 7 Merit Appeals Board December 16, 2021 they could theoretically have the room filled up, right. And I think then they evolved to just the online Zoom access. So, for us, though, I don't see any major issues. We'll double-check. This is something that all boards and commissions need to implement by January 1st. So, our office is making sure that all boards and commissions have a procedure down so I don't anticipate any issues for us, but if there are issues or concerns we, of course, will make sure they're resolved before our next meeting. CHR. CABANAS: Thank you. I guess I was thinking that—okay, so it's not like the council meetings where you have the Puna Conference Room, the Kailua-Kona conference roomso, it's not going to be like that, right? Or it could be or could it be? MR. YOSHIMOTO: It could be depending upon—for our purposes I don't see the necessity for that, but it could be. Like you said, the public participation requirement in terms of the audiovisual room is what you're talking about, right. It could be, say, at the Kona Chambers, right. And the whole not the whole but one of the problems with what the Legislature did is, is that I don't think it envisioned—and maybe they didn't understand this—but the resource requirement for having an audiovisual room for members of the public to participate in separate from the actual meeting room—in other words, for one meeting, you're going to have two rooms plus you're going to have the remote access, right. So—and if you have two or three meetings that happen on the same day, which sometime happens—'cause you noticed meetings are held either on Wednesdays, Thursdays, or once in a while Fridays—depending on the board or commission. So, what I'm trying to say is that it could be a drain on resources as far as having the facilities available. Say, you have three or four meetings happening at the same time. We only have a limited number of conference rooms, so you have to schedule it and whatnot. So, it can get cumbersome. It is a work -in -progress. It is something that we're going to do our very best. But, again, I think for our purposes we should be fine. CHR. CABANAS: Thank you. Any questions from the Board? Gay? MS. MATHEWS: Yes. What happens for non-compliance? MR. YOSHIMOTO: If we're not compliant. Sunshine Law violations on usually involve negating what actions the board takes. So, in other words, if you voted on something and the public did not have the proper access, then the usual—and no guarantees because I don't know what the OIP would rule on that—would be to invalidate whatever actions the board takes for that particular action. That's the usual. And then, hopefully, it's not a knowing violation, `cause if it's knowing, then they might even go there might be more severe consequences, right. But the usual is just to undo it. Page 8 Merit Appeals Board December 16, 2021 There's some situations whereI think it was the Honolulu rail situation where there might have been conflicts of interest when they voted that through. But the problematic thing with that situation is because that was so far removed in the past, by the time they came to the conclusion there were conflicts, right they could not undo the funding of that, right. But that's a usual resolution that they would require that board or commission to redo whatever they did because of a Sunshine Law issue. Yeah. CHR. CABANAS: Anyone else that have questions for J? No? MR. YOSHIMOTO: Yeah. CHR. CABANAS: Okay. MR. YOSHIMOTO: So, we'll keep Glynis and the Board updated as far as changes and yeah, it'll be fine but any questions to me, too. But I will send those—sounds like you guys want those handouts from the Office of Information Practices they're about five or six pages each. They go into more detail. You got, again, the short version here but— CHR. ut CHR. CABANAS: Okay. MR. YOSHIMOTO: That's something the Board members would like? Yeah. CHR. CABANAS: I think everyone is nodding. MR. YOSHIMOTO: Okay. CHR. CABANAS: So, yes. MR. YOSHIMOTO: Okay. CHR. CABANAS: Thank you, J. MR. YOSHIMOTO: I'll email those to everybody. CHR. CABANAS: Thank you so much. MR. YOSHIMOTO: Thank you. Page 9 Merit Appeals Board Unfinished Business (Item 7) December 16, 2021 Discussion Regarding An Opinion From Hawaii County Board Of Ethics Received By Merit Appeals Board Member Gabriella M. Cabanas, Concerning Whether She May Have A Conflict Of Interest On Any Future Appeals Filed Against The Acting Director Of Human Resources Before The Merit Appeals Board CHR. CABANAS: Next on the agenda is Number 7, "Unfinished Business (for discussion and appropriate action" -7) A). Basically, what has happened was I was initially scheduled to appear before the Board of Ethics on November 10, 2021. There they had an error on my petition request on their Board of Ethics agenda. It was not listed how I had it submitted. So, I'llalthough I appeared for the November 10h meeting, they had to re-agendize my petition, so it got scheduled again for the December 6' meeting for which I appeared in person and I submitted my testimony. And the conclusion, the opinion of the Board of Ethics, is that I am not in any conflict to hear any future appeals that may be filed against the Acting Director of Human Resources. So, I just wanted to explain that and does anyone have any comments or questions? No? Okay. Thank you. Discussion Regarding An Opinion From Hawaii County Board Of Ethics Received By Merit Appeals Board Member Gabriella M. Cabanas, Concerning Whether She May Have A Conflict Of Interest By Participating In The Selection/Recruitment Process For Filling The Position Of The New Director Of Human Resources CHR. CABANAS: And so, moving on to 7) B). At the December 6h Board of Ethics meeting, the Board of Ethics determination was that I am not in any conflict to participate in the selection and recruitment process for filling the position of the new director of human resources. So, with that, they just said that if any of us—any Board member may have a potential or viewed as a conflict that we should share it with each other at a Board meeting. And so, they said I can proceed. And so, with that, I'm very relieved actually. And so, I would welcome any comments or questions that my fellow Board members may have on me now participating in the recruitment and interview and selection process for the next director. MR. KUNZ: I have a question for Counsel. So, what nth degree do we go to, like, if a third cousin, that's my brother that we actually step into this area of needing to be recused? Page 10 Merit Appeals Board December 16, 2021 I mean, `cause I understand, Gabe, I'm really grateful and thankful that you are part of this now. But at a certain point that we have a discussion that it's okay and no one needs to be—has a conflict of interest based on our agreement—but then, at what point does it turn into"Oh, wait a second, that might be a little closer than this group might consider." MR. YOSHIMOTO: Okay. So, under the Code of Ethics there's protocols and procedures as far as determining whether someone would have or may have a conflict of interest. So, I can have that discussion with each Board member individually under attorney-client privilege, so we can talk about that. But, generally speaking, it would be something that is, again, specific to the particular situation, whether between the individual and the matter at -hand. And so, sometimes it rises to the level where the recommendation would be to seek the opinion of the Board of Ethics to get absolute clarity because it's the Board of Ethics that can give a definitive resolution or answer on how to proceed. In this case, the Chair did that and, therefore, in this particular case she's no longer recusing herself from the process. So, the record can reflect that based upon the opinion that was provided to her by the Board of Ethics. For other Board members, with conflicts of interest, some things are not always readily apparent at the beginning. So, at any time in the process, if there are concerns about issues regarding your roleI mean, yeah, feel free to reach out to me and we can, again, have that conversation. And then, of course, the process may involve—depending on what the situation is, disclosure and/or whether you need further clarification from the Board of Ethics. Again, our office is able to provide you with an initial opinion. But the usual—not the usual but the standard practice of protocol is to seek the advice of the Board of Ethics if there is something that is, of course, that needs their input, yeah. So, it depends on a case-by-case basis. So, the advice, again, is if there're any issues that come up, we can discuss it here or we can, again, discuss it individually that's up to them. But—so this is an opportunity that the Chair has offered to the Board members to make sure that they're okay with the Chair now participating in the recruitment and examination process. I want to make sure that the record is clear that when she recused herself, initially, it was out of the abundance of caution—making sure that the process is appropriate, which she did. And then, now that she has the opinion, she's ready and able to proceed—subject to, of course, any concerns by any Board members today. MR. KUNZ: Thank you. CHR. CABANAS: So, thank you, J, for your clarification. And I just want to thank my fellow Board members for their patience and understanding as to why I did what I did, by going to the Page 11 Merit Appeals Board December 16, 2021 Board of Ethics because the bottom line isI do not want, as the Chair, to have any dark cloud over the Merit Appeals Board. We are—we should be transparent in what we do and we want individuals coming before us, no matter who they are, to have trust in the merit appeals board process. So that was the bottom line. So, at this point, I, again, thank you very much, everyone. It's been agonizing for me `cause I felt I could really help you folks and help this process. So, I just want to thank everyone, again. So, is it okay, now, fellow Board members, for me to now participate and join all of you in moving this process forward? MS. MATHEWS: It is for me and I'm very excited to have you back on board. MR. KUNZ: Likewise, thank you. MR. VENTURA: Same here. Thanks. MS. DE SOTO: I agree. Looking forward to having you. CHR. CABANAS: Thank you, everyone. I'm excited to jump back in and I do need to, kind of, catch up with what has been decided on and we can do that in executive session. So, thank you very much. Selection Process For Filling The Position Of New Director Of Human Resources Assessment And Review Of Selection Process For Filling The Position, Timeline, Advertisements, And Interview And Selection Process (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: Okay. Moving along to 7) C). So, at this time, may I receive a motion for the Board to go into executive session to discuss the recruitment and selection process for the director of human resources. MR. KUNZ: So moved. MS. MATHEWS: Second. Page 12 Merit Appeals Board December 16, 2021 CHR. CABANAS: Thank you. Any discussion? If not, we will do a rollcall vote to go into executive session to discuss the recruitment and interview and selection process for the next director of human resources. So, I'll start with Mr. Ventura. MR. VENTURA: Aye. CHR. CABANAS: Ms. Mathews. MS. MATHEWS: Aye. CHR. CABANAS: Mr. Kunz. MR. KUNZ: Aye. CHR. CABANAS: Ms. De Soto. MS. DE SOTO: Aye. CHR. CABANAS: Ms. Cabanas—aye. Unanimous vote for the Board to go into executive session. MR. YOSHIMOTO: So, Madam Chair, recommend a brief recess to secure the room and await Stacie's arrival. CHR. CABANAS: Okay. Thank you, J. So, we will recess at 10:32 a.m. RECESS: At 10:32 a.m. the Chair called for a recess. RECONVENE: The meeting reconvened at 1:44 p.m. in open session. Selection Process For Filling The Position Of New Director Of Human Resources Assessment And Review Of Selection Process For Filling The Position, Timeline, Advertisements, And Interview And Selection Process (Executive Session: The Merit Appeals Board Anticipates Convening One Or More Executive Meetings Regarding The Above Matters, Pursuant To HRS Sections 92-4, 92-5(a)(2) And 92-5(a)(4), For The Purpose Evaluating An Officer Or Employee Of The County Of Hawaii, Where The Consideration Of Matters Affecting Privacy Will Be Involved And Consulting With The Board's Attorney On Questions And Issues Pertaining To The Board's Powers, Duties, Privileges, Immunities, And Liabilities. A 2/3 Vote Pursuant To HRS Section 92-4 Is Necessary To Hold An Executive Meeting) CHR. CABANAS: We are now in open session. And I would like to entertain a motion to approve the process that the Merit Appeals Board discussed in executive session and continuing the discussion in executive session on January 14'', 2022. Page 13 Merit Appeals Board MR. VENTURA: I so move. December 16, 2021 CHR. CABANAS: At 10 a.m. in the Council Chambers of the Hawaii County Building. MR. VENTURA: So moved. MS. MATHEWS: Second. CHR. CABANAS: Thank you. Any discussion? If not, may I have the rollcall vote to approve the motion made. Starting with Mel. MR. VENTURA: Aye. CHR. CABANAS: Gay. MS. MATHEWS: Aye. CHR. CABANAS: Charlie. MR. KUNZ: Aye. CHR. CABANAS: Kate. MS. DE SOTO: Aye. CHR. CABANAS: Gabriella—aye. Unanimous to approve the motion made to approve the process that was discussed in executive session and continuing on, on January 14'', 2022, at 10 a.m. in the Council Chambers of the Hawaii County Building, at 25 Aupuni Street, Hilo. Director's Report (Item 8) CHR. CABANAS: Looking at our agenda, there is no "Director's Report." Schedule Next Meeting Date (Item 9) CHR. CABANAS: But I would like to schedule the next meeting, which I think we've already discussed—and that is January 14'', 2022, at 10 a. m. in the Council Chambers of the Hawaii County Building in Hilo, Hawaii. Page 14 Merit Appeals Board December 16, 2021 Adjournment(Item 10) CHR. CABANAS: Okay, so the next matter is "Adjournment." May I have a motion to adjourn today's meeting? MS. MATHEWS: So moved. CHR. CABANAS: Any second? MR. KUNZ: Second. CHR. CABANAS: Thank you, Gay, and Charlie. Any discussion to adjourn today's meeting? If not, we will—may I have all "ayes"to adjourn today's meeting? Any "noes?" AYES: Board Members De Soto, Kunz, Mathews, Ventura, and Chair Cabanas–5. NOES: None. ABSENT: None. EXCUSED: None. MR. KUNZ: Thank you, Stacie. CHR. CABANAS: Okay. Meeting is adjourned at 1:46 p.m. Respectfully submitted, tin d0 Glynis amada, ecretary-Reporter APPROVED: r cl /1 LQ.t/&- Al, . ect irrlf in Gabriella M. Cabanas, Chair Merit Appeals Board Page 15 a 't-., 4iM1'- 3 "ias« 'i«3.3t Gt 3"t 3a..' -d . `.4v'tia f *t 4 v }3 i4 t 1= tp�#..i.t `r' !. i � 3 � Y t, , ^, I } S,C,+-.-s. .,A '..a.s,,.. ,>u. .w F-•r �r t ; ty.1':E.yF;w ra ..•rary<r .iTFt 1 1 lti W * Wk( Updates to Sunshine .:4. t=- F ; ,4 . irniimoro. # Law €.9iimi Office of Corporation Counsel 1 = County of Hawai`i ;; 1 = T=E !lot, o uL`� t December 2021 , _ 'e` :Yi ib' g.41,4';'. I� t 'fix& '. ••i{... .i,,iili ter+ — <rX�r hw tr }1 '{ Y. -i4�- k f j '`✓ 4 X.cS iN.i. �c�f1 F '! _�+g•i}1 1 n i r'".5- . i i.�id l{ x _-... �.�..,..« .'. ......y�'a, ..: .,. '.''4 ..'.4 .��i : Y rid .' i fi F -xj - ,, Tli '4 r'..:44 i= ;' Today's Training Updates to Sunshine Law f1 rtS. S fF 3 4-0 •• Review Meeting Notice Requirements &+ • Review New Meeting Notice requirements E Review New requirements when holding Remote Meetings tai_. '; • Reminder: All new requirements effective January 1, 2022 R ,:4 s, .si' 71-r-4- , dl ... � . .. . a4. -�.1 .tltV.a- i,rx , -y:- V4F .s,. tS.-f .i k a .,7.-a- i.; 3 . . a 9x a a_.. F d2; tfF ATT. A 1 F, w *r ,s.f a v, x i:; X 5t T,A ii w Brief Review — Purpose of Sunshine Law e u Y 5t • • Protect the public's right to know .,* ;s • Open governmental process to public scrutiny and public participation 5::yil 3 ,� hi rrltit • Thus, the discussions, deliberations, decisions and F: 1 actions of government agencies shall be conducted as openly as possible E-J�u3= r - fy iii p_ t, { Agenda Requirements .;r • Agenda: Describe All Agenda Items With Reasonable tx iiiiing iiii Specificity. What is reasonable specificity? t. • Does the agenda provide enough information that members of the ter. public could decide whether to participate in the meeting or not? - • "Neighbor Test"—ask someone that is not familiar with Board or Commission to review Agenda if she or he cannot tell what subjects the board will be talking about at the meeting, the agenda needs further clarification, t yf. 5 r _ ^ y 2 =-�▪-rx k`e -4 ii.,,,•�� tom, -?,•�' -�.. }Fwrnr �-• -a m: o'• K r tg rig.X ;.,-.41w-,-.. _-gig £ 5 Notice Requirements Nom: .ii:: as • Instructions on how to request an auxiliary aid or service or an " ; accommodation due to disability. If there is a deadline to make such a request,it must be stated in the notice and must be reasonable. • Executive Session: If an executive meeting is anticipated, describe the ., ,i. tt` . purpose and statutory authority HRS § 92-5(a) or other laws applicable to = , : 5` :.. your board that allow executive meetings. Use as much detail as possible 21-,1 f '' without compromising the executive meeting's purpose. tritiPe rtitt;i1 141 • 1: .1 r• 63 _ss ry = xi t� , e -i,>. i x c-..41:.t;0 ,,,..s , ii. 4'{ : 7 ., S2ts `t � ' £,.... l=t r i'i yltt,4 N Sd is �' f ..i. :. < W,j; i -• nk .. t i - ^ j. i _ 4-4;.� .• -,at,-,-e. J 'n ) 't t -t 'ti •a;V iy• .T 3I t i<.. x C =ti'! :) -4 .e_... . __.. ..:..V. .. ..�. .e.. • .'a ..• z- -.+ ... 3, n _.. .v :,t,.. xt a; sl r .:• ' Notice Requirements R: lote—Itt .1 ii* art Nil • Date "" • Time mii • Place: List at least one meeting location that is open to the public that shall r - have audiovisual connection to enable public to provide testimony =„;4, �3.ta 3:mu't. iLOru. _ST,� _ ggif• r,114 iS, ,r1,-v:1:: al -c,71-R;4! f4-41,ri :4'414 iliFY _ =€..., ..,x.. ., .. ` , I ' 0.8'"z ... , ^ ,7.:: ,. .+,.;.;. . . _...= xh-"# _ •t _ .▪ .. _, : i .• , x ... an s,4.iit= 3 € r r_ 11 f ..aa€ �- a €33 a € ..5. t i _� t r xvt �za =e w t w-.. ..z F„ a 1 ° f 44- .�x 4 *.n��..i, .,..... Mr^ __.1. ) } 3 _ riANew Notice Requirements 4.J Effective January 1, 2022 • Email and Mailing Address -Must include electronic and postal contacti1F41; information for public to submit testimony before meeting. 's"`' :' .4.'iii .c,,... .„ . • Inform members of the public how to contemporaneously: tW� • Remotely view the video and audio of the meeting through internet °a ,t ��: 3e qt.,* tp,; streaming or other means; and . spa • Provide remote oral testimony in a manner that allows board members i and other participants to hear testimony,by internet or phone or by Els other means f t i _ . - a lAilit 1iN New Notice Requirements Effective January 1, 2022 r ,:: • List all locations open to the public and specify whether the meeting will continue without that location or be automatically recessed to restore 111111,: - communication when connection is lost. - T.:?..pig. Y11111 kr • How public can access meeting after an interruption to communication 7 x _ _.h;, and/or when the meeting will be continued to, date and time,if interruption ;`" lasts more than 30 minutes. • These will make more sense in a few minutes, © i 4 'r S :. Y F t 94, a { A RTM LW emote Meetings Option ' ;3, , Effective January 1, 2022 3s t 7 IIII1404,r • Boards and Commissions will have the option to . hold remote meetings by interactive conference ; Y4444 4174 ; technology. ' 4 n for example: Zoom,WebEx, Microsoft Teams,videoconference, etc. ig;-2 i., s 0.kY+ 4 l,-3 ri L. 4 /• i t 2 3jt is c a* Ln'i; p, Y fir i, -, 3 Remote Meetings Requirements s i i : v'1 • Must provide at least one location open to the fi public; and �F • That location must have a guaranteed AudiovisualtqiiiP y tA ;:._: connection. Atglit e : .t...r ... ..-_..N.3C.. c..aI, �Y-•:i At:. Y5�35-�`rti =.,. ro}.._.fi'-R.... w..r..- s..a 3.'.. (o.._:..¢.../,' CI'' 'L4's3.x r. .i . ...,. 5 SAVX;fat ; ._.: id:a .:f" .. _.. 'Y :._ LJ rl yn - iT % RY' 3 '4 t:. T.zN 0' More Remote Meetings Requirements`T` and Notice Requirements '_ R tr; .` • "Courtesy locations" aka other location open to the public may be 4 ii. wiliprovided for convenience of the public. "` • However, if connection is lost or disrupted at a courtesy location there Mill ,t is NO requirement to stop or terminate meeting. _ ;',, • Notice Requirement: All locations open to the public need to be on „ii '`'?iihaiNotice and must specify whether the meeting will continue without 1a` that location or be automatically recessed to restore communication when connection is lost. hn 7�!`t i 4M': More Remote Meetings Requirements • A quorum of board members are required to be visible and f,d�a•,Sr �� �: audible throughout the meeting. ,, . MN r`== Other • participants are NOT required to be visible. ' • Board members participating remotely from a nonpublic location �. shall state who, if anyone, is present with them at that location. a �:. .J,.� s..:.:i .,..�.. .. '.., -,a.,. �....w..... ... a : y 6 ', _,, t 7 _- a i ,,.._ h 4, i 9 �3 X'w f f n tag More Remote Meetings Requirements Ja YJ?' �i w • At the start of the meeting, the Chair is required to , 6 announce names of participating board members. ..,_ ° ALL votes shall be conducted by roll call unless J.3t, s pt 4 _ v- unanimous. ;.,,"�' •• Best to take roll call vote unless it is approval of minutes or ; - adjournment. iM IT' hF• E Na 3. .-k JY, "1' _ 4 'i x Y ,++KX J� ' tk. 5 2 2 F w x ....J ...,. .. , .. ...', , ,... x ... is 3 .. ,:. M b,,Y •i41.i1 r.: zyt' More Remote Meetings Requirements ''.,7;1.7,,,;;� . �c 1 S ii4`'w • When practicable, boards must records meetings and ;7x,m,- make the recording electronically available to the public as soon as practicable after the meeting and :x�� until a time as the minutes are posted. R"= M 44, tlf it T Y1cs{�, )n.A L t i, 1 '.7'E In-a. 'a\Y 'u 3F - s.+...s -t- 3i. Z ,�� -.4 , ,e g 3 ` s :t ai.` 3 .alit } ' `,t'ac. r * a'f't' t a t :�- y,.,,.,t k, .� °-., t,J F . 'a a5.a.-,r_.. :... ,_.,,;g s.>.......r r,�.,...tr h..,,:.:v.. ,.. :..�. .. ..K ,_::,w r ..r .. ..._., .. ..icy... 7 t R( L h t u .6 e t: 3 zr More Remote Mgigeetings Requirements °S E • Executive Meeting/Session: Chair must announce names ,, and titles of authorized participants; and u ill _: • All authorized participants shall confirm that no 4.1`.`y unauthorized person is present or able to hear then at theirF :�! ' vit t t'+ - o.i remote location or via another audio or visual connection. ., ,; • Person organizing executive session shall confirm that no z unauthorized person has access to executive meeting k kh 5 y11 y,n �, f -.. X K 2t,... .. .0 j L 1 f 43. S-, 2 ,t i t t l 'k' What happens if the meeting connection is 3x lost? c { FFA' lti. Tiiiic �_` • IMfeeting shall be automaticadlly recess3e0d for uptttoth3e0 bmoinautes. rd must m y continue to another date and time or terminate the meeting. - " g • Note: Meeting Notice should include how public can access meeting `. after an interruption to communication and/or when the meeting will be continued to, date and time,if interruption lasts more than 30 minutes. If NO notice meeting must be terminated. 8 ' 7x yl_ j f t3 Ht 4,x s s,s -t M 0 _ F 7 b =; f �S What happens when connection is restored? Fc-▪ " ttl: ri: ;...,iii • The meeting can reconvene if u , • Audiovisual communication is restored; or I. f 3, • Audio-only communication is established after an ?k{4 Y s ;= unsuccessful attempt to restore audiovisual } communication. Fig tp X1,-. tk?n _34 2 t Z f F F ▪ q 1 ? - { ! }, x .... ... _ -:. . 5 .! .:. _ , ::x'.2..1 - �' '_-.. . .. ' a ,._ ,- . ;:;:,'';3:.. . _ x . ._ t_.-+jL r. J. i1. .. .}": ti .. ... k k i 3 s s s t:a s _ ▪ ;1 70....,k." :Ilk!, ▪Ya It L57't .' No Video After Attempt to Restore °` .. t.. F ▪ , • If only an audio connection is available after audiovisual connection has � � illbeen lost, all board members must state their names before speaking. 9 • Any visual aids available to the board shall be made available to all meeting participants within 15 minutes of losings visual connection. If visual aids cannot be provided to all participants then that agenda item shall not be 17 acted upon. l ' ~▪� • Recommendation: Include visual aids in board packet or post online at r time of meeting. f 3sT..._ 3 a . rru.,,_▪ �....d ^ , '.3 r`3q_ .... ..:- ..,� .4. ,•,Y 1Ti ...:.jr_.....uF e, _.r)f-,�„`�,.u_ ... .f,: } » 9 RS .k4 al iR sF yF ,s In Summary. . . 0 g gig New Notice Requirements 1. Include email and mailing address for public testimony ill Mill- P: 2. Include all public locations k.t 3. Include how to access meeting and provide testimony remotely -ii` 5F. 4. Include what happens if connection is lost. s Yi: iii m w. _ In Summary. . . gx- New Remote Meeting Requirements _a..,I fi F; 1. A quorum of board members shall be visible and audible •ft! • 2. Chair must announce all participating members at beginning of the ttil ONmeeting. .. 3. Board members must state who else is present at remote location. ' 4. Voting must be by roll call vote. Af 4 ;I aii - y 4i i_ifiiici _t: �_.� 1. s 10 ¢ R -" ` '� 3 ...ate v .-, 4 r -- ,.9 i _ ... _ `% ; `J'..i,_'s _ 1 r_.d iriqii 3 .¢ Questions? '�,4 s.3-_ 7.;,-.7.- # *<2.'t Mierr bi i' <f • 4-17,- t-.",,e1 VTTAN \ olp. �a\ ll.20v Fa 2 • oipiay,11a\y,1ll.goy, t7 ,-.1ilik • 808-586-1400 „4„. till* < The Office of Information Practices can provide " .0 . further guidance on the Sunshine law 111 .,.!,:,. .. <- ,',:. .�:•° i ,..� a ..::- ... ... ..-:. . .>[ ___._.. . ..:':q x,. ..,. r ,.a.. .. ... � 1._ .. .:.,.. d = s MORE Questions? xf -E ' r i'.5m'E ill • Reach out to the Deputy Corporation r Counsel assigned to the board or commission. y{ H R. .1 3 1i 1, ..fc j Y Y A 7 M ,n f ,. ,.3:.x.l '•''::.:44' : ' ..,.,.; .... rhe.:. < .#_*. ,•r n,., ,... B:...:. . . .... .....,...."R.,.j._ }.... >; .n.. -- _,.. -,... e.. t E�_:ir-g-lilt-,-5.v v...,Alf 7. 11 ac 1 Ed 1t ,5u.,,,,--z =,--,-..4-7,:k F-;; Caveat/Disclaimer - -v AM £ • This written outline is intended to accompany and supplement an oral - 3r' presentation and should not be used as the sole basis for any legal conclusion illi or opinion concerning the subject matter. Please consult the Office of the Corporation Counsel for the County of Hawaii at (808-961-8251) if you = ailr�= -i71:1•:: is have any questions. d.r. T: H ' i. i. ! *. i .. ,.. is:.. .. .: �. .. .. ., a a .7.: ..-' �� .. -" -. ,_-. x„ .,..s ... 4: Viii Mahalo! IMOS i_ i- 41444. -.r5 _Yt:i :tom 'Y 12 Quick Review: Sunshine Law Requirements for Remote Meetings (Revised October 2021) The Sunshine Law allows boards to hold remote meetings where board members and the public participate from various non-public locations as well as at least one physical meeting site, all connected via a remote meeting platform such as Zoom, WebEx or other interactive conference technology OCT), subject to requirements listed in new section 92-_, Hawaii Revised Statutes (HRS). This Quick Review discusses the requirements for holding a remote meeting. Note that OIP has created a separate Quick Review for In-Person Meetings Held at Multiple Sites,which generally require board member attendance in person and are not considered to be "remote" meetings even if the various sites are connected using ICT. Access to the Remote Meeting Whatever remote meeting platform or ICT is used for a meeting must generally allow audio-visual interaction between board members and the public. Board members and the public can attend and participate from anywhere via an online connection to the meeting platform, or in some cases by a phone connection to the meeting platform. Even though a board must still provide a physical public location connected to the meeting as further discussed below,there is no requirement for either board members or members of the public to go to the public location to participate in the meeting. Similarly, there is no requirement for board members to allow the public to join them at their homes, offices,or other private locations where they are physically located while participating in the remote meeting. The notice fora remote meeting must inform the public how to remotely participate in the meeting,including how to view and testify at the meeting. This will typically take the form of a link to the scheduled remote meeting on whateverplatform is being used, but the law does allow the board to provide separate connections for the public to view the meeting and to provide oral testimony. For instance, a board deciding a controversial and high-interest issue might choose to minimize the possibility of disruption during the meeting by having board members and staff access the meeting via a WebEx link not listed on the notice,while public access to view the meeting is via a live one-way YouTube stream and oral testimony is via a phone number, both listed on the notice. Regardless of how the board provides public access to view and testify, the connection(s) must be contemporaneous with the meeting and allow members and the public to hear Quick Review: Sunshine Law Requirements for Remote Meetings (revised 10/2021) Page 1 ATT. B the public testimony. Physical Location Open to Public Even for a remote meeting, the meeting notice must list at least one physical meeting location that will be open to the public and connected via ICT to the remote meeting. However, unlike an in-person meeting,there is no requ irement for board members to appear in-person at the physical meeting location to participate in the remote meeting; the physical location is simply a convenience for members and the public, allowing those without the ability or inclination to use their own connection to an online meeting the option to attend where the board has set up and will maintain the remote meeting connection. If the connection to the remote meeting fails at the requisite physical location,then the meeting will be recessed or terminated, as discussed below. While the board is required to provide at least one physical location that is guaranteed to remain connected to the remote meeting, the board also has the option to provide one or more "additional"physical locations without a guarantee thatthose locations will remain connected to the remote meeting. To be considered an "additional" location,the notice must specify that in the event that location is disconnected from the remote meeting, the meeting will not be terminated or interrupted to restore connectivity. Conducting the Meeting At the beginning of a remote meeting,the chair must list the members present, and members attending from a private location must state who else is present with them. A quorum of members must be visible through out the public portion of the meeting, but so long as that requirement is met, additional members not needed to maintain the quorum visibility requirement can participate via audio only,such as by turning the camera off or calling in by phone. In this way, a member with a poor internetconnection or other difficulties in maintaining a visual connection can still participate,so long as a quorum of members are visibly present throughout the remote meeting. All participating members must maintain an audio connection at all times. Votes during a remote meeting must be done by roll call unless the vote is unanimous. In practice this means the chair can ask if there are any objections or abstentions and call the roll on ly when members object or abstain. Quick Review: Sunshine Law Requirements for Remote Meetings (revised 10/2021) Page 2 Dealing with a Lost Connection When a remote meeting is interrupted by a dropped connection to one of its required components—for example, the whole meeting goes down due to a problem with the meeting platform or the host's connection to it, the public location is cut off, the public livestream or testimony connection listed in the notice goes down,or the board cannot keep a quorum of members visible—the meeting cannot continue even if a quorum of board members remain connected to one another. (Note that an individual member of the public's inability to stay connected does not require recessing the meeting, unless the problem is actually with the public meeting link itself.) The meeting must be recessed for up to 30 minutes to restore the connection,and it can reconvene once the connection is restored. If the full audiovisual connection cannot be restored but the board can manage at least an audio connection for all the required components of the remote meeting, the board can proceed with the meeting that way, with each speaker required to state his or her name and visual aids required to be made available to all participants (perhaps by posting on the board's website). The board should advise the public how to join a reconvened meeting,preferably through its original notice, such as to keep trying the original link,to use a backup link given in the notice, or to look at the board's website for a new link. If the board is unable to restore even an audio connection after30 minutes,the meeting must terminate unless the board has reasonably informed the public how a disconnected meeting would be continued ata later date and time (such as in the notice). With proper notice of continuation,the meeting can be considered in recess and continued atthe specified date and time, rather than terminated. If the meeting must be terminated, the only way to finish the intended agenda is to notice a new meeting at least six days in advance. Executive Meeting Requirements Executive meetings(also called executive sessions)during remote meetings have slightly different requirements than those applicable to the public meetings. Members are not required to be visible during an executive session,just audible. However, all participants— board members, staff running the meeting,the board's attorney, anyone properly present during the executive session — must confirm to the chair that no unauthorized person is with them or linked into the meeting, and the meeting host must also confirm that no unauthorized person is participating if the meeting platform allows the host to check that. Quick Review: Sunshine Law Requirements for Remote Meetings (revised 10/2021) Page 3 Recording the Meeting Boards are generally required to record a remote meeting and put the recording online until the meeting minutes are posted, but only when doing so is practicable. Online meeting platforms typically offer a straightforward option to record a meeting. Boards using such platforms are required to use that option and make the recorded meeting available for public viewers who may not have been able to watch the live meeting. In situations where recording and posting are not practicable, the board will not violate the law by its failure to do so. A board may choose to use the recording,with the addition of a written summary, as its recorded minutes undersection 92-9, HRS. Alternatively, if it prefers to keep written minutes,a board can delete the recording once its written minutes are posted online. Quick Review: Sunshine Law Requirements for Remote Meetings (revised 10/2021) Page 4 In-Depth Sunshine Law Requirements for Multi-site and Remote Meetings, Effective January 1, 2022 (October 2021) Act 220, Session Laws of Hawaii 2021, amended the Sunshine Law to allow public meetings to be remotely conducted online,effective January 1, 2022. This summary of the new multi-site and remote meeting provisions explains the reasons why the Sunshine Law was amended to allow for remote meetings and describes the different meeting options now available underthe Sunshine Law. Before the COVID-19 pandemic,the Sunshine Law allowed boards to use interactive conference technology(ICT) to connect multiple public meeting sites where board members would be physically present. ICT was defined in section 92-2, Hawaii Revised Statutes (H RS), as "any form of audio or audio and visual conference technology, including teleconference,videoconference,and voice over internet protocol, that facilitates interaction between the public and board members." While meetings could be conducted using ICT, including an audio-only connection,board members were still required to be present in person at one of the noticed public meeting sites, with a limited exception for disabled members. The pandemic,however, forced the implementation of emergency measures that suspended the requirementforboard members to meet in person at public meeting sites. These measures allowed meetings using ICT in which board members and the public could participate remotely online from their private homes, businesses,or other locations (remote meetings)and thus enabled boards to conduct necessary business while protecting participants' health and safety and expanding public access to meetings throughout the State. Recognizing that remote meetings had proved viable and popular for Sunshine Law boards, the 2021 Legislature passed Senate Bill 1034, S.D. 1, H.D. 2, C.D. 1, which was enacted as Act 220 and can be found on OIP's Legislation page. Act 220 slightly amended the ICT definition1 and created a new section in the Sunshine Law that allows boards to hold remote meetings for which board members are not required to attend at an in-person meeting site, although the board must still provide an in-person site for members of the public who have no desire or ability to participate using ICT. Act 220 also established new requirements for remote meetings and a new notice requ irement for all meetings subject to the Sunshine Law. As amended, the Sunshine Law's requirements for holding meetings using ICT are summarized below. I. Three Options to Hold Public Meetings 1 As amended by Act 220, Section 92-2, HRS,defines ICT as"any form of audio and visual conference technology, or audio conference technology where permitted under this part, including teleconference,videoconference, and voice over internet protocol, that facilitates interaction between the public and board members." The effect is to generally require some level of board member visibility for remote meetings. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 1 The Sunshine Law now provides boards with three distinct options to conduct public meetings: (1) a meeting in person at one site, which is the traditional method; (2) a meeting in person at multiple sites connected via ICT, without any requ irement to provide remote access, as previously allowed;or (3) a new type of "remote" meeting using ICT where board members and the public may participate either remotely, or from an in-person site listed on the notice. In recognition of the digital divide,which may affect members of boards and the general public,all three options require at least one in-person meeting site. Option one is how Sunshine Law meetings have traditionally been held, at one physical location where all members of the board and the public attend in person. Boards without the staffing,equipment,or technical ability to conduct remote meetings can continue to use this in-person meeting option,since there is no requirement for boards to provide ICT connectivity. Option two was also an available Sunshine Law meeting option before the amendments effective January 1, 2022, were passed, under which a public meeting may be held at multiple in-person meeting sites connected by ICT. Members of the board and the public can choose to attend any of the in-person public meeting sites listed on the meeting notice. The sites are connected to each other by ICT, thus allowing people from various islands or parts thereof to simultaneously participate in the same in-person meeting being held at multiple meeting sites. Option two continues to allow what has been the preferred meeting practice of some boards to connect members or constituents on different islands(e.g., Maui County Council,to connect Maui,Molokai, and Lanai), or widely separated locations on the same island (e.g., Hawaii County Council,to connect Hilo and Kona). Option two does not require a board to provide a way for the public to attend and testify remotely from a private location of the public's choice (e.g., their own homes or businesses),although it also would not prevent a board from accepting telephone testimony or something similar. Option two does require all board members to attend in person at one of the meeting sites, unless they are disabled and are thus allowed to participate remotely. Option three is a newly created section of the Sunshine Law allowing remote online meetings, similarto what boards did during the COVID-19 pandemic as authorized by the Governor's emergency orders, but with enforceable public access standards appropriate for remote meetings held in normal, non-emergency circumstances. For a remote meeting, all board members as well as the public can participate via ICT from their private homes, offices, or other locations. They also have the option to attend from the in-person public meeting site connected to the remote meeting that the board must provide, which accommodates any member of the public or the board who prefer to attend at a physical location rather than using their own remote connection. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 2 Options two and three both rely on an ICT connection to connect members and the public who are not all in the same physical location. The primary difference between these options is that option two is an entirely in-person meeting, even though it has more than one meeting site, and therefore this option does not require the board to also provide a way for the public to remotely view and testify at the meeting. Under option two, board members and the public must go to one of the in-person meeting sites listed on the notice to attend (although the board is allowed, but not required, to offer unofficial "additional"sites or accept teleph one testimony to accommodate members of the public).Only under option three would members of the board and the public have the right to remotely participate in a meeting from private locations. Under both options two and three, the ICT being used must allow for interaction among all members of the board and the public who are participating in the meeting. If the ICT connection is interrupted between the multiple in-person meeting sites under option two, or during a remote meeting held underoption three,the meeting may have to be terminated under Act 220's provisions,to be further discussed below. In contrast, if the ICT connection is interrupted or lost only to "additional locations"described below, the meeting can still continue. II. Additional Unofficial Meeting Locations (formerly known as "courtesy" sites) Besides the official in-person meeting sites that could be set up underoption one or two, and the required physical location connected to the remote meeting underoption three, the Sunshine Law allows boards to set up additional unofficial in-person sites. Prior to the amendments adding the remote meeting option,the Sunshine Law did not explicitly recognize that option. However, DIP interpreted the former language of section 92-3.5, HRS, including its requ irement that a meeting terminate if connection is lost to one site, to only apply to sites that are noticed as official meeting sites where board members may be present and not to additional sites made available to the public with the understanding that no board member would be present. DIP previously referred to these unofficial additional sites as"courtesy" sites. OIP's interpretation is now codified in the Sunshine Law's amendment to expressly allow boards the option to set up unofficial "additional locations"for the public's convenience,where board members will not be present and there is no requirement that the formal meeting be recessed or terminated if the ICT connection fails to these additional locations. It must be emphasized that providing an additional location does not change the board's obligation u n der any of the three options to provide at least one in- person meeting site open to the public that must stay connected to the meeting. Additional locations can be used to help members of the public watch or testify at a meeting without having to either use their own connection to a remote meeting or travel to the nearest official meeting site, without increasing the boards' risk of having to terminate meetings early due to connectivity problems. When a board provides an additional location for a meeting, its notice must inform the public that attendees at that site might miss out on part of the meeting in the event of a lost connection. Despite the risk of ICT connection to the official meeting being lost, for some members of In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 3 the public that risk is offset by the benefits and convenience of being able to participate from an additional location nearer to their home or work. Note that a board is not required to provide additional locations, and the fact that a board previously has had additional locations,or has used a particular place as an additional location,does not create any obligation for the board to include those locations for future meetings. III. Requirements to Hold Remote Meetings A. Notice requirements The notice of a remote meeting must tell the public how to watch and hear the live remote meeting, typically via a link to a remote meeting platform, and how to provide remote oral testimony through an intern et link,a telephone conference,or other means. The notice must also list at least one physical location connected to the remote meeting, where members of the public can go in person to participate. A board holding a remote meeting under option three is not required to allow members of the public to join board members in person at nonpublic locations where board members are physically present,such as their homes or private offices,so there is no requirement for the notice to identify the nonpublic locations where board members will be. The notice may also list additional locations open for public participation and if so, must specify whether the meeting will continue without the additional location if the ICT connection is lost or if the meeting will be automatically recessed to restore communication to the additional location. B. Board member visibility and quorum requirements As a general rule, the remote meeting platforms must allow audiovisual interaction among board members and members of the public attending the meeting,but there are some exceptions to this general rule. To accommodate the challenges some board members may have in remaining on-camera throughoutan online meeting,the law only requires a quorum of board members to be visible to the public during the public portion of remote meetings. All board members present at the meeting must have at least an audio connection. In contrast to the visibility requirement for board members, there is no requirement for the public or other non-board participants to be visible during online meetings,though the board must allow the public to provide oral testimony during the meeting,either through the same meeting platform being used by the board members or some other means such as a telephone line ora more limited online connection controlled by the meeting host. Just as a board member's brief absence from the room during a meeting, such as to take a five-minute restroom break, does not immediately require a board to terminate a meeting due to loss of quorum, a member's brief disappearance from camera view does not immediately trigger the requirement to suspend the remote meeting due to not having a quorum of members visible. If, however, a board member who is needed to In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 4 meet the quorum requirement will be off-camera for an extended period of time or during a vote, the board should call fora recess until a quorum of members are present and visible. Note that the visibility requirementfor board members applies only to the public portion of a meeting. During an executive session closed to the public, board members can participate via telephone or audio only without being visible online. Because participants may not be visible during an online executive session,and to preserve the executive nature of any portion of a meeting closed to the public, the presiding officer must publicly state the names and titles of all authorized participants, who in turn must confirm that no unauthorized person can hear them either in person or via another audio or audiovisual connection. Additionally, if the remote meeting platform allows doing so, the meeting host must confirm that no unauthorized person has access to the executive meeting. "Authorized participants"would be anyone properly included in the closed portion of the meeting, which generally means board members, staff members necessary to run the meeting (e.g., technical or production staff), and in some cases, third parties whose presence is necessary to the closed meeting (e.g., applicant,witness,or attorney). C. Procedures for the public portion of remote meetings At the start of a remote meeting, the presiding officer must announce the names of the participating members and each board member participating from a nonpublic location must state who else is with the member. Votes must generally be taken by roll call, so that it is clear how each member voted, but when the vote is unanimous the board is not required to take a roll call vote. Thus,a board can first ask if any members object or wish to abstain from voting,and only proceed to call the roll if there is at least one objection or abstention. A board is generally required to record a remote meeting and make the recording electronically available to the public as soon as practicable after the meeting. This requirement only applies "when practicable," and the recording is only required to be kept online until the meeting minutes are posted on the board's website. Because it is usually easy to record an online meeting and post it on a board's website, the general requirement to do so gives people who were unable to attend the meeting the ability to watch at a more convenient time, but still permits a board to skip recording an online meeting when doing so presents a more significant challenge. A board could also take advantage of the recording by using it as its recorded minutes in combination with the written summary required for recorded minutes. If a board opts for traditional written minutes instead,it can remove and even delete the recording once its written minutes are posted. For furtherguidance on minutes,see OIP's "Quick Review: Sunshine Law Requirements for Public Meetinq Minutes"on our Training page at oip.hawaii.gov. IV. Requirements for Both Remote and Multi-Site Meetings Using ICT In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 5 A. Procedures if ICT connection is interrupted or lost If the board's audio-visual connection is lost during the public portion of a remote meeting or during a multi-site meeting, the Sunshine Law requires the meeting to automatically recess for up to 30 minutes while the board attempts to restore the connection. This requirement applies for all official meeting sites and the remote con nection(s)provided as part of a remote meeting, but it does not apply when the remote connection is working properly and a member of the public has lost Internet connectivity or is otherwise unable to access the remote connection due to issues on that person's end. The board may reconvene with audio-only communication if the visual link cannot be restored, provided that the board has provided reasonable notice to the public as to how to access the reconvened meeting after an interruption. For remote meetings only,the law specifically requires speakers to state their names before speaking, if the meeting has been reconvened with audio-only communication. Within 15 minutes of establishing audio-only communication,copies of non confidential visual aids that are required by or brought to the meeting by board members or as part of a scheduled presentation must be made available by posting on the internetor other means to all meeting participants (including those participating remotely). If these requirements are not met, agenda items with unavailable visual aids cannot be acted upon at the reconvened meeting. If the meeting cannot be reconvened within thirty minutes after interruption to communication,and reasonable notice has not been provided to the public of how the meeting will be continued to another date or time, the meeting is automatically terminated. OIP recommends that boards prepare in advance for the possibility of technical difficulties and has provided tips in the next section. B. Continuation of a Meeting if ICT Connection is Not Timely Restored When an interruption to the ICT connection that could not be restored ends a meeting early, the board may continue the meeting at a later time if it has"provided reasonable notice to the public as to how the meeting will be continued at an alternative date and time." Without reasonable notice of continuation,the meeting is automatically terminated. OIP's tips for providing reasonable notice to continue any Sunshine Law meeting — whether in person or connected by ICT — are: 1. The board's notice of the meeting may contain a contingency provision stating that if the board loses online connection,then people should check the board's website(give address) for reconnection information. Alternatively,the notice could provide that if the connection is lost for more than 30 minutes,the meeting will be continued to a specified date and time, with the new link for the continued meeting either on the agenda itself or to be provided on the board's website. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 6 2. At the start of the online meeting,the board could announce that if online connection is lost, information on reconvening or continuing the meeting will be posted on its website and give the website address. 3. If the audio and video have gone down but there is still a chat function or similar means of communication available,the board should also post a visual notice of the continuation of a meeting through the chat function. 4. If visual connection has been lost during a meeting using ICT, the board could audibly announce that the meeting will be continued and direct people to its website where the relevant information has been posted. 5. If time permits, the board can email people on its email list with a notice of continuation of the meeting. See the training or forms page on OIP's website fora form of the notice of continuation. V. Additional Requirements A. Notice The notice for a multi-site meeting must list all the locations where board members will be attending as public meeting sites (except that disabled board members have the ability to attend from an undisclosed private site, as explained below). The public meeting locations are set at the time the notice is filed. Board members may attend from any of the public meeting locations listed on the filed notice. The notice is not required to specify which board members will attend from which location. The noticed locations cannot be cancelled or shut down early while the meeting goes on at another public meeting location listed on the filed notice. A board can eliminate one of the noticed public meeting locations when the meeting is still more than 6 calendardays away by cancelling the entire meeting and then filing a new notice with only the desired locations. Just as with an in-person meeting at a single site, however, if the meeting is less than 6 days away, the board has insufficient time to file a new agenda and so it must either convene the meeting with the originally noticed locations,or cancel the meeting. If a board chooses to provide any additional locations, the notice must state that no board members will be attending from an additional location and that, if the connection between the additional location and the meeting site(s) is lost, whether the meeting will continue without the additional location or will be automatically recessed to restore communication. B. Procedures to prevent meeting disruptions The Sunshine Law continues to allow boards to remove persons who willfully disrupt a meeting. HRS § 92-3. Therefore, a board holding a remote meeting could disconnecta person creating an online disruption or could take reasonable action In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 7 to prevent disruption. For example, obscene images through "zoombombing"can be avoided if the board's meeting is conducted as a one-way live stream, while public oral testimony is presented audibly overa telephone line rather than as an interactive video feed. C. Disability requirements A board member with a disability that limits or impairs the member's ability to physically attend a noticed meeting may participate in a multi-site meeting from a private, non- noticed location,so long as the member is connected by audio and video and identifies where he or she is and who else is present. Thus,for example, a disabled board member may participate from a private residence or hospital,so long as the other requirements are met. The Office of Information Practices does not administer or have jurisdiction over disability issues,which are governed by federal law such as the Americans with Disabilities Act(ADA) or other state laws. Boards are, however, required to modify policies and procedures to accommodate individuals with disabilities undertheAmericans with Disabilities Act(ADA), and should consultwith their own attorneys regarding compliance with the ADA, or with the State Disability and Access Communication Board whose website is https://health.hawaii.gov/dcab. In-Depth Sunshine Law Requirements for Remote Meetings, Effective 1/1/2022 Page 8 Office of Information Practices (October 2021) I Sunshine Law: PUBLIC MEETING NOTICE CHECKLIST 1. Notice Includes: ❑ Date: In addition to the date itself, if the notice also specifies the day of the week, make sure it matches the date. ❑ Time: While the starting time must be provided, an ending time is not required. n Location: All notices must list at least one physical location for the meeting. For an in-person meeting, the notice must list all locations where board members will be physically present and must state that the public can attend the meeting at any of those locations. n For a remote meeting using interactive conference technology (ICT), the link(s) allowing the public to contemporaneously view and hear the meeting and provide remote oral testimony. n If additional locations (formerly known as "courtesy" locations) are being provided for the public's convenience, specify whether the meeting will continue without the additional location if the ICT connection between the additional location and the public meeting site(s) is lost, or will be automatically recessed to restore communication. n Board's electronic and postal contact information for submission of testimony before the meeting. n Instructions on how to request an auxiliary aid or service or an accommodation due to a disability. If there is a deadline to make such a request, it must be stated in the notice and must be reasonable. n Agenda describing with reasonable specificity all matters to be considered. n If an executive meeting is anticipated, the agenda describes the purpose and statutory authority in section 92-5(a), HRS, or other laws applicable to your board that allow the executive meeting. Use as much detail as OIP Notice Checklist Rev. October 2021 possible without compromising the executive meeting's purpose. ❑ Optional: For a meeting using ICT, information about what will happen in the event of a connection failure, such as where to find reconnection information and any necessary visual aids online or an alternative date, time, and place for continuation of the meeting if the ICT connection cannot be restored. 2. Filing Notice: ❑ 6 calendar days prior to meeting: Electronically post on: ❑ State Calendar: http://calendar.ehawaii.gov/calendar/html/event (State only) County Calendar (counties only) Board's website (unlike the above, this is not a legal requirement) Physically post for public inspection in: Board's Office — Site of meeting (when feasible or if meeting is canceled) File (and keep proof of filing) with: ❑ Lieutenant Governor's Office (State) ❑ County Clerk (counties) Mail or email to persons who requested notification of meetings (MUST be postmarked/emailed no later than 6 calendar days before the meeting): n Postal mailing list ❑ Email list 3. Meeting Canceled for Late Filing of Notice: It is suggested but not required that the board post a notice canceling the meeting at: ❑ Meeting site n State Calendar: http://calendar.ehawaii.gov/calendar/html/event (State only) ❑ County Calendar (counties only) ❑ Anywhere else notice was previously posted, mailed, or filed such as county or board website (not a legal requirement) OIP Notice Checklist Rev. October 2021 4. Special Instructions for Emergency Meetings (held less than 6 calendar days prior to meeting): • Board must first decide to hold emergency meeting by vote of two-thirds of members to which board is entitled (include authorized but vacant positions) • Must meet criteria in section 92-8, HRS, either: o when"imminent peril to the public health, safety, or welfare," or o because of an"unanticipated event" and board must take action. ■ For an unanticipated event, the Attorney General must concur (even for county boards). n File board's findings justifying emergency meeting with emergency agenda as set forth in section 2 above (but without the 6-day notice requirement). 5. Special Instructions for Limited Meetings • Limited meetings not open to the public may be held when a board determines it necessary to inspect a location that is dangerous or that is impracticable for public attendance. • Must obtain concurrence from OIP's Director. See OIP's Request for the Office of Information Practices'Concurrence for a Limited Meeting form at www.oip.hawaii.gov/forms/. • For county councils only: See OIP's Checklist and County Council's Request to Waive Videotaping of a Meeting as Guests of a Board or Community Group form at www.oip.hawaii.gov/forms/. • Notice must be filed 6 days before limited meeting. H File board's limited meeting agenda as set forth in section 2 above. 6. Special Instructions for In-Person Meetings Involving Board Members with a Disability • Notwithstanding the general requirements for multi-site in-person meetings in section 1 above, a "board member with a disability that limits or impairs the member's ability to physically attend the meeting" may attend an in- person meeting via a connection by audio and video means from a private location (e.g., home or hospital room). The specific address of the private OIP Notice Checklist Rev. October 2021 location need not be listed on the notice, but a board member with a disability attending from a private location must generally identify the location (e.g., home; hospital) and all persons present with the member. • See OIP's Quick Review: Sunshine Law Requirements for In-Person Meetings held at Multiple Sites on OIP's Training Page at oip.hawaii.gov. 7. Other Considerations There are matters outside of OIP's jurisdiction that you may wish to consider when preparing a meeting notice, such as: • Although the Sunshine Law requires a notice to include instructions for requesting a reasonable accommodation for disabled persons (for example, provision of sign language interpreters for individuals who are deaf or hard of hearing), OIP does not have authority to advise as to what constitutes a reasonable accommodation. If you have questions about what accommodations or auxiliary aids must be provided in response to a request, you may wish to contact your board's attorney or the State Disability and Communication Access Board: (808) 586-8121 (Voice or TTY) or email: dcab@doh.hawaii.gov for assistance. • Applicable statutes or administrative rules related to your board. • For county boards, your County's applicable charter, ordinances, or other provisions. • Your board's own procedural rules or policies; or instructions for the public regarding, among other things, your board's preferred method for submission of written testimony and opportunity to provide oral testimony at the meeting. • Whether the public can find and get into the meeting site. For example, is the meeting site large enough that someone might have trouble finding the right room? Are there improper barriers to public access such as a security checkpoint requiring attendees to show identification? OIP Notice Checklist Rev. October 2021