2003-02 OIP Opinion Re Executive Meetings

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Mr. Al Konishi Mr. Lincoln S.T. Ashida July 14, 2003 Page 6 For reasons similar to those expressed by the Dathe court, the OIP is of the opinion that the Council has, and boards and commissions have, discretion to select non-council or non-board members to attend executive meetings where necessary to assist in considering an agenda item. The OIP believes, as did the Dathe court, that boards can more effectively conduct their affairs if they can obtain information in person in an executive meeting, rather than relying exclusively on written submissions from agency personnel. The OIP further concludes that such interpretation is consistent with the intent and purpose of section 92-5, Hawaii Revised Statutes. As discussed above, the statute clearly contemplates, expressly and implicitly, that non-board members will be participants in certain meetings closed to the public. The OIP also extends this interpretation to authorize a board to summon a board's administrative staff, or other necessary individuals, such as a court reporter, to attend executive meetings to provide administrative support for tasks such as taking of minutes of executive meetings.5 Nevertheless, a board's discretion to designate who may attend an executive meeting is not unlimited. The OIP's conclusion as set forth above is based upon the fact that the statute designates, expressly or implicitly, the identity of certain members who are permitted to attend, at the board's discretion, executive meetings. The OIP therefore cautions boards to not invite non-board members to attend executive meetings unless their presence is necessary to assist the board on one of the items listed in section 92-5(a), Hawaii Revised Statutes. Thus, boards' attorneys, agency personnel, and persons who have some special knowledge,6 expertise or perform a function that relates to the subject of the executive meeting in question are authorized to attend executive meetings. As the public's business must be conducted in public, boards must ensure that an executive meeting does not become a meeting to which only a portion of the public is admitted. If a non-board member, including the board's attorney, remains in an executive meeting after his or her presence is no longer required for the meeting's purposes, the executive meeting may lose its "executive" character. The result may be a Sunshine Law violation. 5 Section 92-9(a),Hawaii Revised Statutes, requires a board,in executive meetings,to take minutes of the meeting. The OIP cannot conclude that the Legislature intended that board members themselves perform the administrative function of taking the minutes or performing other administrative functions imposed by the board or by other laws. 6 Included as individuals with special knowledge would be informants or witnesses with information relevant to the stated purpose of the meeting. OIP Op. Ltr. No. 03-12