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HomeMy WebLinkAboutCOM 0664.000 1998-2000 ~7e 1 17rwy, Ka,-. ~:isa, • «M,i~~ 11ts1o~ - _ Stephen K. Yamashiro ;,i : 1, ~ ~ Richard Wurdeman Ma7cr - / ~ ~ ~l J ~ Corporation Covnrd o~ •r' l'.:IIIITTf~1 IJ~ ~~~If11~ItT OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suiie 325 Hilo, Ha»•aii 9G.?0-~2b2 (808) 961$251 Fa: (808) 9b9-iQ19 ;stay 31, 1995 The E?onorable Elroy T. L. Osorio i~ECE1VElD ` - Chairperson - Ha~~-aii County Council ;rnn...____ By - 2S .~~!puni Street ; ~~ts....__._---~~~-!a_1.~--- - iiiic, 1-fawaii 96720 ~ -~x+~t;~ :~~'~cil (_~!~airperson Ororio: RE: Violation of "Sunshine La~~•." Flease be advised that I have been informed that you, Council member Childs and Ray may have violated Chapter 92, of the Hawaii Revised Statutes also known as the "Sunshine Law." The allegation is that the three of you met to discuss information directly related to the merits of Resolution 101-95 relating to the Kealakehe Golf Course, Bill 1'Io. 41 and Bill No. 80, all of which are on the Council's agenda for June 1, 1995. The charge includes meetings with the other council members, to caucus and/or solicit votes, question and answer sessions with county and state officials to support respective positions on matters on the Council's agenda. As you know, a violation of the "Sunshine Law" is a full misdemeanor, punishable by up to a $2,000 fine and one year in jaii. Accordingly, [ resper_tfult}' suggest that you discontinue any further meetings for similar tvp~s of discussions. Additionally, in anticipation of a criminal investigation, I respectfully request an oppar;unity tc re:~iew an;~ ^otes, memos, minutes, or other records of these types of meetings which may hive been held in the past. I also would like a list from you ho~v many of these types of meetings were neld, who ~'as at these meetings, the dates of those meetings, who may know anything about then= meetings and what ~~as discussed. ~':.^.^:;:7511"...vu : :~:iiiit ifGiu iiic iii:iii5nitui). i ica~c tcCi ifCC lU CUnIaG.-l yQUC U~V71 ~flVa~.C alt;ittw Y 1- b ' in this regard as our office is unable to represent you in a criminal action. Thank you for your kind attention to this mattel•. Respectfully, ~ / / ed~ . Ho iG Assistant Corporation C unsel cc: Council c,~r*~ber Childs r Council member Ray , , ~ (o~~ ~ L Comm. No. File No. Ci~ ~ Ref. To: COUNC (L Ref. Date FEB 1 5 2000 ADDRESS NEPLY TO CAULE ADDRf_55 I a tf~RMY Gk:N EDAL OF IIA WAII" 4~ ATTGEN I ANU REEER TO ~ ~u ~yN~ 4~it~ IA LS ANU NUMOER A • ~~I ' 6 a ~ RONA LII v AMCMIYA AYT OIINI ! t:1 NERAL pp.~ No. 75-11 STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL STATE CAPITOL 4TH FLOOR _ HOnOLULU. HAWAII 96813 September 30, 1975 Dr. Richard Ando Chairman, Board of Education Y. G. rio:c 2:160 Honolulu, Hawaii 96804 Dear Dr. Ando: At a meeting of the Board of Education held on SeptE~mber 25, 1975, you verbally requested our opinion on the following questions. Can an executive meeting, closed to the public, be held where the sole purpose of said meeting is to de~Telop general employment criteria to be used in reviewing applicants for job of Superintendent of Education and an evaluation system to apply to future Superintendents, and where there may dis- cussions concerning past Superintendents during the course of the r~eetirg . We answer in the negative. We understand the facts to be as follows: l T}+at (•~rnm~ +-Ven }L.` T.TI,...l n h lJa..•• charged wit~l tre responsibility of screening applicants for the job of_ Superintendent of Education and making a recommendation to the Board of Education. 2. That in discharging this function the Committee desires to hold an executive meeting for the purpose of (a) developing general ernploymei,t criteria to be applicable to all who apply for the job of Superintendent and (b) developing an evaluation system Op. No. 75-11 Ur. Richard Ando -2- September 30, 1975 . to more efficiently evaluate the performance of the future Superintendents. 3. That incidental to the purpose of said executive meeting the Committee may discuss the performance of past Superintendents. Section 92-1(2), HRS, as enacted by Act 166 (hereinafter the Act) provides as f_oliocas The provisions requiring open meetings shall be liberally construed . Section 92-1 (3) provides that The provisions providing for exceptions to the open meeting recuirement shall be strictly construed against closed meetings. (Emphasis added.) Hence, if an executi-re meeting of the Committee is to be closed to the public, specif is exceptions to the open meeting requirement of the Act must be found, and in reading ary exception proviso, it must be strictly construed. The specific exceptions to the open meeting requirements of the Act (the requirement of open meetings is found in section 92-3) is in section 92-5 which provides as follows: Sec . 92-~ ::xce~tior.s . (a) A board :«ay hold a meeting closed to the public pursuant Lo section 92-4 for one or more of the follow- i r_n p~~_poses . (1) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against him, where ccn- sideration of matters affecting privac}- will be involved; provided, that if the individual concerned requests an open meeting, an open meeting shall be held; . i Op. No. 75-11 Dr. Richard Ando -3- Se; _ -amber 30, 1975 1 (2) To deliberate concerning the of persons designated by the _ ` horit:/ ~ conduct labor negotiations or ~ =='rd to negotiate the acquisition. of ~ _ ---,lic property, or during the conduc of j such negotiations; (3) To consult with the board's a__ _ y, ne To investigate proceedings re__= 3in ~ i a - g cr i:.«na~ ~ :iscor.3uc ar.~ (5) To consider sensitive matters gated to public safety or security. (Emphasis added.) In the situation confronted herein, the only , exception is 92-5 (1) relating to the hire, e~r~__`_-~°ib1F; dismissal, or discipline of an officer or. emp_ ; =..;.atior~, are of the opinion however that this proviso _ _ - 'ee • vie s no t allow the Committee, under the facts presente.. ~ y,o hold an executive session closed to the publ=;_ ==ore, believe that 92-5 (1} provides for a closed e~i<< 6ae meeting only where the primary purpose of. the -=-'rive is to consider the hire, evaluation, dismissa'_ =°-tin~; d_is- cipline of a specific individual , i . e . , the h__. o~ a I specific applicant for the office of Superint"_`~nt o`: ~ Education. We base this conclusion on the word,__ _ of 92-5 (1) which is replete with references to a~ __~__~ns concerning an individual and therefore, in ou_ clearly manifests a legislative intent that e`..~~tive ~ sessions be held only where the primary purpo~,„ ~ L meeting concerns the hire, evaluation, dismis_„__ ort discipline of that individual. We note, for the phrases "of an officer or employee," "of c>~,`~~-ges~ brought acrainst hi_m," if the individual ~ -~ncer:,~ d requests an open meeting We further i,, Vp tha'' # dismissal and disciplinary actions are taken a,,•,__ ! specific individuals. aga:,-st The sole purpose of the executive se:,,=__ ~ here is to develop general employment guideline„=~~n • ~ - _ p • Nn . _ 11 Dr. Richard Ando -4- September 30, 1975 which will be used in considering the qualification of all applicants, and to develop an evaluation system applicable to a new Superintendent. While the performance of past Superintendents will be discussed, the primary purpose of the executive session is not to consider the hire of a specific applicant for the job of Superintendent and any discussion concerning an individual is only incidentally related to the above-stated primary purpose. In short, we are of the opinion that the Com- mittee of the Whole cannot hold an executive session closed to the public where the sole purpose of the meeting is to develop employment criteria and an evaluation system applicable in the future because said meeting does not fall within the parameter of section 92-5 (1) . If we can be of further assistance to you, please do not hesitate to contact us. ' Very truly yours, Y RANDALL Y. IWASE Deputy Attorney General APPROVED: RONALD Y. AM IYA Attorney General Op. No. 75-I1 4A O• M. 4' ~ 1.0. ~ 7 • \ i 6EOR6E R. ARIYOSHI • ( i.; ? MICHAEL A. LILLY GOVERNOR ~ ATTpRNEr GENERAL p.~ ~ CORINNE K.A. WATANABE STATE OF HAWAII Flat oE"uTr •*r~»E• GENERAL DEPARTMENT OF THE ATTORNEY GENERAL STATE CAPITOL 14b HONOLULU. HAWAII 96dt3 Op . NO . 8 5- 2 ceoel s.e-a.o t< ~ j February 4 , 19 8 5 'y; E8 M' 1~^~G-r J Ms . Jean Williams C~~`J1T''~'~~ Executive Secretary ~ ~~?fl~ Hawaii State Commission on the StaLUS of women Department of Social Services and Housing Liliuokalani Building 2390 Miller Street Honolulu, Hawaii 96813 Dear Ms. Williams: Re: Agenda and Minutes of Hawaii State Commission on the Status of Women By memorandum to the Attorney General dated June 18, 1984, you inquired whether your public meeting agendas are too general. You enclosed several recent Commission agendas for our review. These exemplar agendas consist of categories such as "Unfinished Business" and "New Business," without further specification as to subject matter. In the same memorandum, you also asked whether the Commission has the responsibility to provide its meeting minutes to members of the public on request. We respond to both questions in the affirmative. With regard to your first question, we note initially that the State Commission on the Status of Women is a state agency. State agency meetings are governed by chapter 92 (entitled "Public Agency Meetings and Records"), part I (entitled "Meetings"), Hawaii Revised Statutes the so-called ".Sunshine Law." Section 92-2 defines "board" to include a "commission" of the State. Section 92-7(a), which we believe is dispositive of your question, provides as follows: $ 92-7 Notice. (a) The board shall give written public notice o~ any regular, special or resc e~c~ meeting. The notice shall include an agenda which . n,, w.. - - - - - Ms. Jean Williams -2- February 4, 1985 lists all of the items to be considered at the orthcomin meetin the date, time an place of the meets g. Emphasis added). Zn addition to section 92-7(a), above-quoted, we believe it instructive that section 92-7 (b) sets forth the following specific requirements with regard to the filing and posting of, and addition to, written public notice: (b) The board shall file the notice in the office of the lieutenant governor or the appropriate county clerk's office, and in the board's office for public inspection, at least six calendar days before the meeting. The notice shall also be posted at the site of the meeting whenever feasible. No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons. Also instructive in the general context of your question is section 92-4(a), which states as follows: 592-9 Minutes. (a) The board shall keep written minutes of all meetings. Unless otherwise required by law, neither a full transcript nor a recording of the meeting is required, but the written minutes shall give a true reflection of the matters discussed at the meeting and the views of the participants. The minutes shall include, but need not be limited to: (1) The date, time and place of the meeting; (2) The members of the board recorded as either present or absent; (3) The substance of all matters proposed, discussed, or decided; and a record, by individual member, of any votes taken; and (4) Any other information that any member of the board requests be included or reflected in the minutes. Pursuant to section 92-1, the provisions of the Sunshine Law are required to be liberally construed in favor of public scrutiny and participation: 592-1 Declaration of olic and intent. In a democracy, t o peop a are veste wi t o ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public Op. No. 85-2 Ms. Jean Williams -3- February 4, 1985 policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy the discussions, deliberations, decisions, and action of governmental agencies shall be conducted as openly as possible. To implement this policy the legislature declares that: (1) It is the intent of this part to protect the people's right to know; (2} T.he provisions requiring open meetings shall be liberally construed; and (3) The provisions providing for exceptions to t;e open meeting requirements shall be strictly construed against closed meetings. In view of the foregoing, we believe that the Sunshine Law requires the Commission to list on its agendas all of the specific "items" or "matters" that will be discussed at any regular, special, or scheduled public meeting. It is our opinion that it is not sufficient to list broad categories of items on the agendas, and that general phrases, such as "Unfinished Business" and "New Business," will not comply with the Sunshine Law. While there does not appear to be any Hawaii case on point, case law from other jurisdictions supports our opinion. See, e•g•, Haworth Board of Education v. Havens, 637 P.2d 902 (Okla. Ct. App. 1981} (Notice of school boar meeting, which was deceptively vague and ambiguous, was likely to mislead the average reader and was a "willful violation" of the Open Meeting Act; thus, employment contract approved during meeting was nullified) ; Houman v. Ma or of Pom ton Lakes, 155 N.J. Super. 129, 382 A.2 413 (N.J. Super. 9 Agen a was incomplete in that it failed to disclose adequately what matters would be considered in the executi:*e session, thereby violating the spirit and policy of the Open Meetings Act). We believe that the cases we have found which reach a contrary result are distinguishable from the situation presented herein. For example, in Benson v. McCormick, 195 Colo. 381, 578 P.2d 651 (1978), the Supreme Court o Colorado upheld a legislative notice which listed all of the bills capable of being considered on a particular day, rather than listing only those bills which could reasonably be reached at a given meeting, but the Colorado Open Meeting Law did not establish the manner in which notice must be given or a ine t e content of the required notice. Similarly, in Crifasi v. Governin Bod of Oakland, 156 N.J. Super. 182, 383 A.2d 736 19 8), the Superior Court of New Op. No. 85-2 Ms. Jean Williams -4- February 4, 1985 s Jersey upheld an annual notice of a regularly scheduled public meeting, notwithstanding that a separate agenda for such meeting did not reflect the consideration of certain matters, but the New Jersey Sunshine Law contained no re uirement that an agenda be published prior to a regularly sc e u e meeting. We believe, in summary, that all matters to be considered under general categories such as "Unfinished Business" and "New Business" should be listed on the agendas and made a part of the written public notice of the Commission meeting, in order to give interested members of the public reasonably fair notice of what the Commission proposes to consider. With regard to your second question as to whether the Commission has the responsibility to provide its meeting minutes to members of the public on request, w+e respond as follows. Section 92-9(b) clearly specifies that the Commission has such a responsibility. That subsection states in pertinent part: (b) The minutes shall be public records and shall be available within thirty days after the meeting except where such disclosure would be inconsistent with section 92-5; . We point out that you have authority to charge members of the public twenty-five cents per page to defray reproduction costs of the meeting minutes, pursuant to section 92-21 ("Copies of records; other costs and fees"). Very truly yours, n~nle~-.;.. T Alvin T. Nagao ' Deputy Attorney General PPROVED: Michael A. Lilly Attorney General Op. No. 85-2 ~ O • y •s. •~.~C1. GEORGE R. AR11'OSMI ~ 1. CORINNE K.A. WATANABf GOVf ~.K~a 1.~ •TTORNEr GE N[MI~ I l ~wJ' / JAMES H. DANNENBERG STATE OF HAWAII ~~~s* oE.urr •**o~wE. GFwE~h DEPARTMENT OF THE ATTORNEY GENERAL STATE CAPITOL NONOIUIU. NAWAII 96e1~ leoel s.a-usa February 10, 1966 LAW !..t'B~~fR`. r~ FEB 19 1~ _ THiHO ~1CUFT COURT The Honorable Goro Hokama Chairman, County Council County of Diaui ~6ailuku, Maui, Hawaii 96793 Dear Mr. Hokama: Re: Applicability of the State Sunshine Law to the County Councils and the Presentation of Oral or Written Testimony on Agenda Ztems This is in response to your letter of November 25, 1985, requesting our opinion on several questions regarding section 92-3, Hawaii Revised Statutes, as amended by section 1 of Act 278, 1985 Hawaii Sess. Laws 591, which requires boards to afford all interested persons an opportunity to submit data, views, or arguments, in writing, or to present oral testimony, on any agenda item. Your specific questions are as follows: 1. May a county council delegate to its committees the responsibility of affording an opportunity for interested persons to present written or oral testimony on items and subsequently preclude the presentation of written or oral testimony at regular council meetings on agenda items which had been previously discussed at a committee meeting during which interested persons had been afforded an opportunity to present written or oral testimony on the items? 2. Must an opportunity for interested persons to present written or oral testimony on an item be afforded at every board meeting held to consider the item? Op. No. 86-5 The Honorable Goro Hokama February 14, 1986 Page 2 3. Must an opportunity for interested persons to present written or oral testimony be afforded on agenda items at a board meeting if a public hearing has been held on the item? You have also asked whether the county council is a "board" within the meaning of section 92-2(1), Hawaii Revised Statutes. Vie answer the first question in the negative and the second and third questions in the affirmative. With respect to whether the county council is a "board" within the meaning of section 92-2 (1) , it is our opinion that it is a board and therefore subject to the provisions of the Hawaii Sunshine Law. We address first the question of whether the county council is a "board" within the meaning of section 92-2(1), Hawaii Revised Statutes, which reads as follows: "Board" means any agency, board, commission, au- thority, or committee of the State or its political subdivisions which is created by constitution, statute, rule, or executive order, to have super- vision, control, jurisdiction or advisory power over specific matters and which is required to conduct meetings and to take official actions. It is clear that the county council is required to conduct meetings and to take official action. The question to be answered is whether the county council is "created by constitution, statute, rule, or executive order." If "constitution" is construed to mean "state constitution" and "statute" is construed to mean "state statute;" it may be argued that the county council is not subject to the Hawaii Sunshine Law because the county council is created by county charter.l/ 1/ Section 1 of article VIII of the State Constitution, relating to local government, provides that "[t]he legis- lature shall create counties and provide for the government thereof." Section 2 of article VIII provides that "[e]ach political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law." Thus, the State Constitution authorizes the legislature to create counties, but does Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 3 Such a construction would also exclude from the coverage of the Hawaii Sunshine Law all county agencies, boards, commissions, authorities, or committees created by county charter or ordinance and include only those county agencies, commissions, authorities, or committees which are created by state statute. We believe that such a construction is contrary to section 92-71, Hawaii Revised Statutes, which specifically provides that the provisions of the Hawaii Sunshine Law "shall apply to all political subdivisions of the State" and is inconsistent with the policy and intent of the Hawaii Sunshine Law, as set forth in section 92-1, Hawaii Revised Statutes. It is a well-accepted rule of statutory construction that statutory language must be read in the context of the entire statute and construed in a manner consistent with the purpose of the statute. Hawaii Public Employment Relations Board v. United Public h'orkers, Local 646, AFSCN.E, AFL-CIO, 66 Hawaii 461, 470-471, 667 P.2d 783, 790 (1983) ; State v. I~aneakua, 6i Hawaii 136, 140, 597 P.2d 590, 592 (1979). The Hawaii Supreme Court has stated that, although legislative intent is to be obtained primarily from the language used in a statute, when aids to construction of the meaning of words, as used in the statute, are available, there can be no rule of law which forbids their use, however clear the words may appear on superficial examination. Treloar v. Swinerton and tValberg Co., 65 Hawaii 415, 421, 653 P.2d 420, 424 {1982); Crawford v. Financial Plaza Contractors, 64 Hawaii 415, 420, 643 P.2d 48, 52 (1982) . The legislative history of section 92-2(1) is available as an aid in construing the definition of "board." As originally enacted in 1975, section 92-2(1) defined "board" as follows: 1/ continued not create the county councils. The state statutes creating boards of supervisors for the counties (e.g., section 64-2, Hawaii Revised Statutes, creating the board of supervisors of the County of Hawaii; section 65-1, Hawaii Revised Statutes, creating the board of supervisors of the County of Kauai; and section 66-1, Hawaii Revised Statutes, creating the board of supervisors of the County of Maui) have been superseded by the respective county charters which create a county council for each county. Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 4 (A]ny agency, board, commission, authority, or committee of the State or its political subdivisions, either legislative or executive, permanent or temporary. It is clear that as originally enacted the legislature intended to include the county councils within the coverage of the Hawaii Sunshine Law by its use of the phrase "either legislative or executive." Section 92-2(1) was amended by Act 212, 1976 Hawaii Sess. Laws 509, to its present language. There is nothing in the legislative history of Act 212 which indicates that the legis- lature intended to exclude the county councils from the Hawaii Sunshine Act. Nor is there any indication of an intent to exclude all county boards and commissions not "created by constitution, statute, rule or executive order." Act 212 also added a new section to chapter 92, codified as section 92-71, Hawaii Revised Statutes, which states: §92-71 Political subdivision of the State; applicability. The provisions contained in this chapter shall apply to all political subdivisions of the State. Provided, however, in the event that any political subdivision of the State shall provide by charter, ordinance or otherwise, more stringent requirements relating to mandating the openness of. meetings, the more stringent provisions of said charter, ordinance, or otherwise, shall apply. In light of the addition of this section to chapter 92, we believe that the legislature intended that the county agencies, boards, commissions, authorities, and committees be subject to the Hawaii Sunshine Law. No exemptior. similar to that provided for the state legislature in section 92-10, Hawaii Revised Statutes, was granted to the county councils. Thus, we believe that the legislature intended "constitution," as used in section 92-2 (1) and applied to counties pursuant to section 92-71, to be broadly interpreted to mean the written organic and fundamental law of a body which establishes the government thereof, rather than interpreted to refer only to the state constitution. The charter under this broad construction of the word is the "constitution" of the counties. Likewise, "statute" should be construed to mean any act of a legislative body declaring, commanding, or prohibiting something and would include state statutes and county ordinances. Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 5 This interpretation is supported by the statement made by Representative Roehrig during the House's consideration on third reading of the bill which became Act 212. He stated: We also made a second change to provide that in the event any of the political subdivisions of the State have any provisions in their charter, or in the ordinance, or by rule or otherwise, that requires more stringent requirements relating to mandating openness of meetings, the more stringent provisions of the charter, ordinance or otherwise, shall apply. This was done to make it clear that in no way has this Legislature intended to eclipse the sunshine of any of the counties who have strived to provide openness in their deliberations before the legisla- tive and administrative boards and agencies. [Emphasis added.] 1976 Hawaii House Journal 567. The policy and intent of the Hawaii Sunshine Law is stated in section 92-1, Hawaii Revised Statutes: §92-1 Declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State that the formation and conduct of public policy - the discussions, deliberations, decisions, and action of governmental agencies - shall be conducted as openly as possible. To implement this policy the legisla- ture declares that: (1) It is the intent of this part to protect the people's right to know; (2) The provisions requiring open meetings shall be liberally construed; and (3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings. To assure that the people's right to know is protected, section 92-3 requires that "[e]very meeting of all boards Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 6 shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5." Section 92-1 requires a liberal construction of the open meeting requirements to implement the policy of this State that the discussions, deliberations, decisions, and acticn of governmental agencies be conducted as openly as possible. To construe the definition of "board" to exclude all county boards and commissions unless created by the State Constitution, a state statute, rule, or executive order would place a substantial part of county governmental processes outside the scope of the Hawaii Sunshine Law. We believe that such an interpretation would be contrary to the policy and intent set forth in section 92-1. We therefore conclude that the Hawaii Sunshine Law is intended to govern meetings of county boards, including the county council. We now turn to your questions regarding section 92-3, Hawaii Revised Statutes. Act 278, 1985 Hawaii Sess. Laws 591, amended section 92-3 to further require boards to afford any member of the public the opportunity to submit written or oral testimony on any agenda item. Set forth below is section 92-3. The provisions added by Act 278 are underscored: X92-3 Open meetings. Every meeting of all boards shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5; provided that the removal of any person or persons who wilfully disrupts a meeting to prevent and compromise the conduct of the meeting shall not be prohibited. The boards shall afford all interested ersons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The boards shall also afford all interested persons an opportunity to present oral testimony on any agenda item. The boards may provide for reasonable administration of oral testimony by rule. The question to be answered is whether a county council may delegate to its committees the responsibility of affording an opportunity for interested persons to present written or oral testimony on items and preclude the presentation of testimony at regular county council meetings on agenda items that are or have been referred to a committee which will or has afforded persons the opportunity to present written or Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 7 oral testimony on the items. Two contrary interpretations of the amended portions of section 92-3 were submitted with your letter of November 25, 1985. One interpretation of the amend- ment of the section is that an opportunity to present testimony must be afforded at every meeting of the county council on any agenda item. The other interpretation is that the amendment to section 92-3 requires only "an opportunity" to present testimony on items on the agenda of a regular council meeting and that requirement is satisfied by allowing persons to testify on those items at meetings of the county council's committees. As discussed above, the primary guideline ir. the con- struction of statutes is to ascertain and give effect to the intention of the legislature as gleaned primarily from the language contained in the statute itself. Hawaii Public Employment Relations Board v. United Public Workers, Local 646, AFSCME, AFL-CIO, 66 Hawaii 461, 469, 667 P.2d 783, 789 (1983); State v. Ui, 66 Hawaii 366, 371, 663 P.2d 630, 633 (1983); Survivors of Medeiros v. Maui Land and Pineapple Co., 66 Hawaii 290, 297, 660 P.2d 1316, 1321 (1983); Treloar v. Swinerton and Walberg Co., 65 Hawaii 415, 420-21, 653 P.2d 420, 424 (1982); Black Construction Corp. v. Agsalud, 64 Hawaii 274, 283, 639 P.2d 1088, 1094, appeal dismissed, 459 U.S. 1011, 103 S. Ct. 367, 74 L. Ed. 2d 504 (19fi2); In re Hawaiian Telephone Co., 61 Hawaii 572, 577, 608 P.2d 383, 388 (1980); Keller v. Thompson, 56 Hawaii 183, 189, 532 P.2d 664, 669 (1975). Statutory language must be read in the context of the entire statute and construed in a manner consistent with the purpose of the statute. Hawaii Public Employment Relations Board v. United Public Workers, Local 646, AFSCME, AFL-CIO, 66 Hawaii 461, 470-471, 667 P.2d 783, 790 (1983); State v. Kaneakua, 61 Hawaii 136, I40, 597 P.2d 590, 592 (1979) . In reviewing section 92-3, we noted that the legislature chose to add the requirement of affording the public an opportunity to testify on agenda items to section 92-3, rather than placing the requirement in a new section. Section 92-3 requires, with certain exceptions provided therein, that "every meeting of all boards shall be open." The opportunity to present testimony extends to "any agenda item." Read in the context of the entire section, we believe that "any agenda item" refers to items on the agenda at "every meeting of all boards" which are open. Thus, we believe that an opportunity to present oral or written testimony must be afforded on any agenda item at every meeting of all boards. Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 8 This interpretation is consistent with the policy and intent of the legislature as expressed in section 92-1 of opening up the governmental processes to public scrutiny and participation. It is also consistent with the intent of the legislature as expressed in the conference committee reports of the House and the Senate on the bill which became Act 278. They state: The purpose of this bill is to afford the public more participation in the open meetings of the government. This year marks the tenth anniversary of Hawaii's Sunshine Laws, Chapter 92, Hawaii Revised Statutes. To make government as open to the public as possible to protect the public interests, strengthening of the Sunshine Law is necessary. Senate Conf. Comm. Rep. No. 36-85 (1985); House Conf. Comm. Rep. No. 41-85 (1985). With respect to oral testimony, the amendment to section 92-3 provides that "[tJhe boards may provide for reasonable administration of oral testimony by rule." The question raised by this part of the amendment is whether the county council may delegate the taking of oral testimony to a committee of the council, if the delegation is made by rule of the county council. The legislative history of this part of the amendment to section 92-3 leads to the conclusion that such a rule would not satisfy the requirement that persons be afforded an opportunity to present oral testimony on agenda items at every board meeting. Senate Bill No. 1413, which became Act 278, was referred to the Senate Committee on Judiciary, which made amendments to the bill and recommended its passage. As passed by the Senate on third reading, the amendment to section 92-3 in Senate Bill No. 1413, S.D. 1, added the following sentence to section 92-3. The boards shall afford all interested persons an opportunity to submit data, views, or arguments, orally or in writing, on any agenda item. The House Committee on Judiciary to which Senate Bill No. 1413, S.D. 1, was referred, deleted the language quoted above from the bill and amended the bill by adding the following to section 92-3: Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 9 The board shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item, provided further, at the discretion of the board, interested persons may be allowed to present oral testimony on any agenda item. In its report, the House committee stated: 1) The bill provides that the boards afford all interested persons an opportunity to subr~,it data, views, or arguments in writing or orally on any agenda item. Your Committee recommended that this amendment be amended to require boards to accept, in writing, data, views, or arguments on any agenda item, and to allow the board discretion whether to accept oral testimony. Your Committee wanted to ensure that interested persons be allowed to present their views but it felt that there had to be some balance between access to the boards and the boards ability to conduct business. House Stand. Comm. Rep. No. 889-85 (1985). The bill was amended in conference committee to provide the language which is presently found in section 92-3. In the conference committee reports, the committee stated as follows: (1) Section 92-3: This section was revised to require the board to hear oral testimony but allow the board to establish its own rules governing oral testimony. The amendment will give the board the authority to reasonably administer the presentation of oral testimony. By this amendment, your Committee does not intend to provide rule-making powers pursuant to Chapter 91, Hawaii Revised Statutes, to any board which does not already have that power. [Emphasis added.] Senate Conf. Comm. Rep. No. 36-85 (1985}; House Conf. Comm. Rep. No. 41-85 {1985). The intent of the legislature, as clearly expressed in the conference committee report, was to require the board to hear oral testimony, although reasonable rules could be adopted to govern oral testimony. Delegating the requirement to hear oral testimony to a committee would circumvent the requirement that the board hear oral testimony. Furthermore, Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 10 while we understand that the committees play an important role in the legislative process, the ultimate decisions are made at the council meetings, not at the committee meetings. To preclude the public from testifying at the regular meetings of the county council would deny interested persons the right to participate in the governmental process, at what may be argued, is its most critical stage. Although we are not familiar with the make-up of each of the county committees, assuming that these are boards within the meaning of section 92-2(1), restricting the opportunity to present written or oral testimony only before committees of the county council may preclude interested persons from addressing those members of the county council who are not members of the particular committee to which an item is referred. Even if the legislative intent of the amendment requiring the presentation of oral testimony and granting authority to the board to provide for reasonable administration of oral testimony by rule was considered ambiguous, construing the amendment to section 92-3 to require a board to hear oral testimony at every board meeting best accords with the public benefit. With respect to construing ambiguous laws, the Hawaii Supreme Court has stated: [W]e must look to the object to be accomplished, the purpose to be subserved, and place a reasonable or liberal construction which will best affect its purpose, so that ambiguity or uncertainty of the legislative intent receives the interpretation that best accords with the public benefit. Survivors of Cariaga v. Del Monte Corp., 65 Hawaii 404, 409, 652 P.2d 1143, 1147 (1982) (citations omitted). The legisla- ture has found that the public interests are best protected by making "government as open to the public as possible." Requiring the county council to permit input from the public at every meeting will make government more open to the public .and best accords with the public benefit. We are mindful that the Hawaii Supreme Court has also often stated that "even in the absence of statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and a literal construction in the particular action is clearly inconsistent with the purposes and policies of the act." In re Spencer, 60 Hawaii 49i, 499, 591 P.2d 611, 613 (1979?; Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 11 Tangen v. State Ethics Commission, 57 Hawaii 87, 93, 550 P.2d 1275, 1279 (1976); Pacific Insurance Co. v. Oregon Automobile Insurance Co. , 53 Hawaii 208, 211, 490 P.2d 899, 901 (1971) . We realize that construing section 92-3 to require the county councils to afford an opportunity for the public to testify at every meeting is a significant departure from the existing procedures of the county councils and is likely to lengthen the county legislative process. However, we do not believe that this construction produces an absurd or unjust result, particularly since it appears to be consistent with the purposes and policies of the Hawaii Sunshine Law. We do not believe that it is absurd or unjust to permit interested persons to testify at the county c_ouncil's regular meeting, even though the same persons may have testified before a county council committee on the same agenda item. As stated above, final decision-making takes place at county council meetings, not at committee meetings. Not all members of the council may be members of the committee and, therefore, some members voting on an agenda item may not have heard the oral testimony or seen the written testimony. Finally, if amendments are made to agenda items after a committee meeting, interested persons will be provided an opportunity to testify on the item, as amended, at the regular meeting of the council when that item is on the agenda. In light of the foregoing, we conclude that the count~• council may not delegate the responsibility of hearing oral testimony or receiving written testimony on items to its committees and thereby prec lude interested persons from testi- fying on those items at meetings of the county council when the items are on the agenda. With respect to your second question, based on the fore- going, it is our opinion that an opportunity to testify on an item must be afforded at every meeting of the board held to consider the item. As we noted above, the legislature may well have intended that the public should have an opportunity to testify on an item at each meeting held to consider that item because of changes which may have been made to the item between readings or between meetings. With respect to your third question, based on the fore- going, it is our opinion that an opportunity to testify must be provided at every council meeting on agenda items, even if a public hearing on the item has been held. Finally, it should be noted that the opportunity to testify is to be afforded at "meetings" of the "board." The Op. No. 86-5 The Honorable Goro Hokama February 10, 1986 Page 12 powers and duties of each of the committees and subcommittees of the county council must be examined to determine {I) whether they are boards within the meaning of section 92-2{1), Hawaii Revised Statutes, and (2) whether the meetings of the committees or subcommittees are "meetings" as defined in section 92-2 {3) . Very truly yours, ~~a n ~~rcua ~a Susan Tamura Sato Deputy Attorney General APPROVED: Corinne K. A. Watanabe Attorney General Op. No. 86-5 ~Io SEP 1 1 198 _ ~Y GEORGE 4. ARt~OSMI ~ I CCRiNNE A, rA'AN4QE GOvERtiOR ; ~ ?TTO4NE" GENERAL STATE OF HAWAII ?2RSr pEPU-r ArTaRrrE~ GENERA,, DEPARTMENT OF THE ATTORNEY GENERAL STATE CAPITOL HONOLULU. MAW All 96A~J leoel ss.~•o THIRD CIRCUIT COURT State of Hawaii 75 Aupuni Street September 2, 1986 Hilo, Hawaii 967"!l Mr. Kamaki Kanahe'_e, III Administrator Office of Hawaiian Affairs Kawaiahao Plaza 567 S. King Street, Suite 100 Honolulu, Hawaii 96813 Dear Mr. Kanahele: Re: Applicability of Part I, Chapter 92, Hawaii Revised Statutes, to a Private "Retreat" of OHA Trustees This is to confirm our oral advice that was given in rESnonse to your oral communication of March i0, 1986, requesting our opinion on whether part I, chapter 92, Hawaii Reviser3 Statutes, popularly known as the Hawaii 'Sunshine Law," is applicable to a private 'retreat" of Office of Hawaiian Affairs (OHA) trustees. we believe that such a "retreat" is synonymous with a 'meeting" and, therefore, must be held in accordance with the Hawaii Sunshine Law. We understand the facts and purposes of the proposed' "retreat" to be as follows. 1. A retreat was planned to take place on March Z1, 1986, immediately following an OHA Board meeting held that day on Molokai. The retreat was to be held at a hotel on Molokai. 2. Trustees would be reimbursed their hotel anti meal costs for attending the retreat. 3. Seven of the nine OHA trustees planned to attend the retreat. 4. The purposes of the retreat reportedly were: np. No_ 8G-19 Mr. Ramaki Ranahele, III September 2, 1986 Page 2 (a) To attempt to "resolve personality conflicts" among OHA trustees; (b) To discuss past errors of OHA trustees and how trustees can ensure that those errors will not be repeated; and (c) To get OHA trustees "working together again for common OHA goals." In order to determine whether the Hawaii "Sunshine Law" applies to the proposed retreat, we must first determine whe~her a "retreat" is a "meeting" as defined by section 92-2(3). Apparently, as used in the context of this discussion, the word "retreat" has been defined to mean "a special period of group withdrawal to a place of seclusion for the purpose of deepening the spiritual life of participants through such means as prayer, meditation, study, and instruction under a director.' Webster's Third New International Dictionary 1940 (unabridged 1966). Section 92-2(3) defines "meeting" as "the convening of a board for which a quorum is required in order to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power." Pursuant to the above definitions, "retreat" appears to be generally synonymous with a "meeting" of a group {the Board of Trustees of OHA) under the direction of a director (the chairperson). Furthermore, even if a quorum of the Board of Trustees is not required to hold the retreat, section 92-5(b) provides that "[n]o chance meeting or electronic communication shall be used to circumvent the spirit or requirements of this ` part to make a decision oc toydeliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.' Thus, a determination of whether any and which of the topics to be discussed during the retreat involves "matters over which [OHA] has supervision, control, jurisdiction, or advisory power" is necessary. Furthermore, in determining what is a "meeting," one must be aware of the legislative policy and intent of part I of chapter 92, as recently discussed in our Opinion No. 86-5, because, as we pointed out in that opinion: It is a well-accepted rule of statutory construction that statutory language must be read in tha context of the entire statute and construed in a manner consistent with the purpose of the statute. Hawaii Public Employment .i Relations Board v. United Pub is or ers, ocaT-sue; ~ Op. No. 86-I9 /'y. r-:~,.. .a :..e.,~...... Mr. Kamaki Kanahele, III September 2, 1986 Page 3 AFSCME, AFB-CIO, 66 Hawaii 461, 470-471, 667 P.2d 783, 790 (1983); State v. Kaneakua, 6I Hawaii 136, 140, 597 P.Zd 590, 592 i i The purpose and intent of the Hawaii Sunshine yaw is set forth in section 92-1, Hawaii Revised Statutes: 592-1 declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny _ and participation is the only viable and reasonable metho d of protecting the public's interest. Therefore, *_he legislature declares that it is the policy of this State that the formation and conduct of public Aolicv - the discussions, eliberations, ecLSions, and action governmental agencies - shall be conducted as ooenl as oos~ Bible. To implement is po icy the egtis azure declares that: (1) It is the intent of this part to protect the people's right to know; (2) The Drovisions reQUirina open meetings shall be liberally construed; and (3) The provisions providing for exceptions to the open meeting requirements shall be strictly construe agaLnst c ose meetings. • [Emphases added.l As we further pointed out in our Opinion No. 86-5, 'Section 92-1 requires a liberal construction of the open meeting requirements to implement the policy of this State that the discussions, deliberations, decisions, and actions of governmental agencies be conducted as openly as possible." With these principles in mind we turn to the specific topics to be discussed at the retreat. The first topic to be discussed regards "personality conflicts between OHA trustees." This topic relates to the relationships of the OHA trustees with each other. Presumably, the reason for the conflicts between or among the trustees relates to their differences of opinions regarding OHA matters. Consequently, resolution of their differences would necessarily involve discussion of the OHA program issues that they disagree about. Op. 86-19 Mr. Ramaki Ranahele, III September 2, 1986 Pagz 4 Moreover, differences of opinions regarding OHA program issues, anti the necessary discussion and resolution of these differences, may be the reason why section 5 of article XI. of the State Constitution requires that the OHA Board of Trustees consist of "not less than nine members" from five different islands. Furthermore, section 10-8, 3awaii Revised Statutes, which requires that "(t)he concurrence of a majority of al'_ members to which the board is entitled shall be necessary to make any action valid," appears to recognize that there would be differences of opinions between board members in regard to OHA matters. we believe that these differences are the result of each board member's "personality," background, and views and that the discussion of these differences is within the type of ` discussions referred to in section 92-1. On the other hand, section 92-4, Hawaii Revised Statutes, does permit certain meetings, referred to as 'executive meetings," which may be closed to the public: 592-4 Executive meetings. A board may hold an executive meeting closed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a mee ing sna ae pun Lc y announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting. (Emphasis added.) Section 92-5(a) lists six exceptions for holding closed executive meetings as follows: 592-5 Exceptions. (a) A board may hold a meeting closed to the public pursuant to section 92-4 for one or more of the following purposes: • (I) To consider and evaluate personal information relating to individuals applying for professional or vocational licenses cited in section 26-9 or both; (2) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against him, where consideration of matters affecting privacy will be involved; provided that if the individual concerned Op - 8 6-19 ,u , _ . _ _ t Mr. Kamaki Kanahele, ZZZ September 2, 1986 Page 5 requests an open meeting, an open meeting shall be held; (3) To deliberate concerning the authority of persons designated by the board to conduce labor negotia~ions or to negotiate the acquisition of public property, or during the conduct of such negotiateions; (4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities; (5) To investigate proceedings regarding criminal misconduct; and (6) To consider sensitive matters related to vublic safety or security. The first topic discussed above does not meet any of these exceptions. However, the second topic, regarding past errors of OHA trustees,~may meet one of the exceptions set out in section 92-5(a). Although the errors of OHA trustees relate to OHA business and would be subject to the open meeting requirements of section 92-3, if the OHA trustees decide to "discipline" certain OHA trustees for their errors, this topic may be within the meaning of 'discipline of an officer" and may be an exception under section 92-S(a)(2). However, in order to conduct an executive meeting and discuss a trustee's discipline, the board would need to determine whether the closed meeting is necessary because 'matters affecting [the trustee'sl privacy will be involved" and the trustee does not request that an open meeting be held. Further, in order for a matter to affect the trustee's "privacy," it must be a matter that has not previously been made public or published. If the board determines that there is some matter . affecting the trustee's privacy and an executive meeting is necessary, the board must also comply with the other requirements in section 92-4. That section requires that at a prior open meeting two-thirds of the majority of the board present affirmatively vote for the closed meeting. Further, at the open meeting, the board must announce its reasons for holding the executive meeting and the vote of each board member on the issue must be recorded. ~ Op. No;.. 86-19 - / ' Mr. Ramaki Kanahele, III September 2, 1986 Page 6 Finally, the retreat is requested for the purpose of discussing OHA goals. OHA goals generally concern the future dtrzction that the OHA 3oard should take. This topic clearly is a business matter of OHA and, therefore, it would be subject to the Sunshine Law requirements of chapter 92, i?awaii Revised Statutes. Consequently, based on our understanding of the purposes of the planned (but subsequently canceled) retreat, we believe that the "retreat" is subject to the open meetings requirement of the Sunshine Law and that the topics to be discussed during the 'retreat" generally do not appear to meet the exceptions to the open meetings requirement. Although the possible - 'discipline' of an OHA trustee may be a topic that is excepted from the open meetings requirement, the statutorily prescribed requirements to hold a closed exceutive meeting must be followed before a closed meeting may be held. Ver truly yours ~ ~ Lorenn Walker Deputy Attorney General LW:sc 12541 APPROVED: ~ ~ C~ ~ ~L~~~ Corinne R. A. Watanabe Attorney General i Op. No 86-19 i Act 137 http://www.state.hi.us/oip/Act°/a20137.htrn Office of Information Practices State of Hawaii Latest Update: Dec. 7, ?999 y ?i~a. Act 137: OIP Moves to Office of the Lieutenant Governor; Open Meetings Law lrlome _ _ i rO/P Ooenline~ i On June 24, 1998, the Governor signed into law Senate Bill 2983, SD 2, HD 2, CD 1. RULES: Act 137 took effect July 1, 1998. i ~ Public Records, Model Forrns i - - Act 13T designates the Office of Information Practices ("OIP") as a temporary office RULES: A°oeals for a special purpose administratively attached to the Office of the Lieutenant . _ Governor. The OIP was previously administratively attached to the Department of the Attorney General. Privacy Study Act 137: OIP to Lt. In addition, Act 137 requires the OIP to receive complaints about the open meetings Gov.: Sunshine Law ' laW, Section 92, Hawaii Revised Statutes (sometimes referred to as the "sunshine law"). Section 92 was previously administered by the Department of the Attorney ~ ~Guidance_ ` General. 1 The Law Opinion Letters _ , Annual Reports Open Meetings Law Records Resort _ "ow tp Contact oIP Chapter 92, Hawaii Revised Statutes a Whereto Call for otnerl~°t,,,~;a, Public Agency Meetings and Records 3 _ J Other Links Act 137, which took effect July 1, 1998, gives the Office of Information Practices jurisdiction regarding Part I of Chapter 92. Because Part II is also part of the "sunshine law," the text of Part II is included here. This is an unofficial copy of Chapter 92, Parts I and II, Hawaii Revised Statutes. Text of the 1998 Cumulative Supplement of the Hawaii Revised Statutes has been incorporated and noted in this copy. Official text of Chapter 92 can be found in the Hawaii Revised Statutes and its supplements. [Hawaii Revised Statues] CHAPTER 92 PUBLIC AGENCY MEETINGS AND RECORDS PART i. MEETINGS SECTION 92-1 DECLARATION OF POLICY AND INTENT 92-1.5 ADMINISTRATION OF THIS PART (from Supp. 1998) 92-2 DEFINITIONS 92-2.5 PERMITTED INTERACTIONS OF MEMBERS (from Supp. 1998) 92-3 OPEN MEETINGS 92-3.1 LIMITED MEETINGS (from Supp. 1998) 92-3.5 MEETING BY VIDEOCONFERENCE; NOTICE; QUORUM (from Supp. 1998) 92-4 EXECUTIVE MEETINGS 92-5 EXCEPTIONS (from Supp. 1998) 92~ JUDICIAL BRANCH, QUASI-JUDICIAL BOARDS AND INVESTIGATORY 1 of 13 2/7/00 6:24 AM Act 137 http://www.state.hi.us/oip/Act%20137.htm FUNCTIONS; APPLICABILITY 92-7 NOTICE 92-8 EMERGENCY MEETINGS 92-9 MINUTES 92-10 LEGISLATIVE BRANCH; APPLICABILITY 92-11 VOIDABILITY 92-12 ENFORCEMENT 92-13 PENALTIES PART II. BOARDS: QUORUM; GENERAL POWERS 92-15 BOARDS AND COMMISSIONS; QUORUM; NUMBER OF VOTES NECESSARY TO VALIDATE ACTS 92-16 POWER OF BOARDS TO ISSUE SUBPOENAS, ADMINISTER OATHS, APPOINT MASTERS, ETC. 92-17 CONSUMER COMPLAINTS; PROCEDURES AND REMEDIES PART I. MEETINGS Attorney General Opinions Department of agriculture advisory committee on plants and animals subject to provisions of this part; subcommittees not subject to this part. Att. Gen. Op. 90-7. §92-1 Declaration of policy and intent. In a democracy, the people are vested with the ultimate decision-making power, Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the govemmental processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest. Therefore, the legislature declares that it is the policy of this State That the formation and conduct of public policy -the discussions, deliberations, decisions, and action of govemmental agencies -shall be conducted as openly as possible. To implement this policy the legislature declares that: (1) It is the intent of this part to protect the people's right to know; {2) The provisions requiring open meetings shall be liberally construed; and (3) The provisions providing for exceptions to the open meeting requirements shall be strictly construed against Gosed meetings. jL 1975, c 168, pt of § 1 J Attomey General Opinions This section and sections 92-7 and 92-9 require commission to specify subject matter of items on public meeting agenda. Att. Gen. Op. 85-2. Interpretation of "board" as excluding county council would be inconsistent with policy and intent of sunshine law. Att. Gen. Op. 86-5. Hawaii Legal Reporter Citations Openness in govemmental discussions, deliberations, decisions, and actions. 79 HLR 79-0117; 79 HLR 79-0543. [The text of §92-1.5 was taken from the 1998 Cumulative Supplement of the Hawaii Revised Statutes.] §92-1.5 Administration of this part. The director of the office of information practices shall administer this part. The director shall establish procedures for filing and responding to complaints filed by any person concerning the failure of any board to comply with this 2 8f i3 ~ Act 137 http://www.stete.hi.us/oip/Act%20137.htm part. The director of the office of information practices shall submit an annual report of these complaints along with final resolution of complaints, and other statistical data to the legislature, no later than twenty days prior to the convening of each regular session. [L 1998, c 137, §2] §92-2 Definitions. As used in this part: (1) "Board" means any agency, board, commission, authority, or committee of the State or its political subdivisions which is created by constitution, statute, rule, or executive order, to have supervision, control, jurisdiction or advisory power over specific matters and which is required to conduct meetings and to take official actions. (2) "Chance meeting" means a social or informal assemblage of two or more members at which matters relating to official business are not discussed. (3) "Meeting," means the convening of a board for which a quorum is required in order to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power. [L 1975, c 166, pt of § 1; am L 1976, c 212, § 1 Attorney General Opinions Trustees of travel agency recovery fund comprise board subject to sunshine law. Att. Gen. Op. 85-14. Associated Students of University of Hawaii not a "board" subject to sunshine law. Att. Gen. Op. 85-18. "Board" includes committees or subgroups of the board. Att. Gen. Op. 85-27. County council is a "board". Att. Gen. Op. 86-5. Agency's retreat would be a "meeting" subject to sunshine law. Att. Gen. Op. 86-19. [The tent of §92-2.5 was taken from the 1998 Cumulative Supplement of the Hawaii Revised Statutes.] §92-2.5 Permitted interactions of members. (a) Two members of a board may communicate or interact privately between themselves to gather information from each other about official board matters to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought. (b) Two or more members of a board, but less than the number of members which would constitute a quorum for the board, may be assigned to: (1) Investigate a matter relating to the official business of their board; provided that: (A) The scope of the investigation and the scope of each member's authority are defined at a meeting of the board; (B) All resulting findings and recommendations are presented to the board at a meeting of the board; and (C) Deliberation and decisionmaking on the matter investigated, if any, occurs only at a duly noticed meeting of the board held subsequent to the meeting at which the findings and recommendations of the investigation were presented to the board; or ' (2) Present, discuss, or negotiate any position which the board has adopted at a meeting of the board; provided that the assignment is made and the scope of each member's 3 of t3 2/7/00 6.24 AM Act 137 http:;iwrnw.state.hi_us/oip/Act%20137.htm authority is defined at a meeting of the board prior to the presentation, discussion or negotiation. (c) Discussions between two or more members of a board, but less than the number of members which would constitute a quorum for the board, concerning the selection of the board`s officers may be conducted in private without limitation or subsequent reporting (d) Discussions between the governor and one or more members of a board may be conducted in private without limitation or subsequent reporting; provided that the discussion does not relate to a matter over which a board is exercising its adjudicatory function. (e} Discussions between two or more members of a board and the head of a department to which the board is administratively assigned may be conducted in private without limitation; provided that the discussion is limited to matters specified in section 26-35. (f) Communications, interactions, discussions. investigations, and presentations described in this section are not meetings for purposes of this part. (L 1996, c 267, §2] §92-3 Open meetings. Every meeting of all boards shall be open to the public and a!I persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5; provided that the removal of any person or persons who wilfully disrupts a meeting to prevent and compromise the conduct of the meeting shall not be prohibited. The boards shall afford all interested persons an opportunity to submit data, views, or arguments, in writing, on any agenda item. The boards shall also afford all interested persons an opportunity to present oral testimony on any agenda item. The boards may provide for reasonable administration of oral testimony by rule. [L 1975, c 166, pt of § 1; am L 1985, c 278, § 1 J Attorney General Opinions Sunshine law applies to meeting of standing or select committee of board of regents of University of Hawaii. Att. Gen. Op. 85-27. Opportunity to present testimony, when it must be afforded; cannot delegate committee to hear testimony. Att. Gen. Op. 86-5. Case Notes Administrative rule regarding confidentiality of development proposals did not conflict with or contradict "mandate" of section; section does not address public's interest in disclosure of or access to government records. 74 H. 365, 846 P.2d 882. [The text of §92-3.1 was taken from the 1998 Cumulative Supplement of the Hawaii Revised Statutes.] §92-3.1 Limited meetings. (a) If a board determines that it is necessary to meet at a location that is dangerous to health or safety, and the attorney general concurs, the board may hold a limited meeting, in that location, which is not open to the public; provided that at a regular meeting of the board prior to meeting at the dangerous location: (1) The board determines that it is necessary to hold the meeting at the dangerous location and specifies the reasons for its determination that the location is dangerous to health or safety; (2} Two-thirds of all members to which the board is entitled vote to adopt the determinations required by paragraph (1) and to conduct the meeting; and (3) Notice of the limited meeting is provided in accordance with section 92-7. 4 of 13 ?J7/00 6.24 AM Act 137 http:/lwww.state.hi.us/oip/Act%20137,hm~ (b) At all limited meetings, the board shall: (1) Videotape the meeting, unless the requirement is waived by the attorney general, and comply with all requirements of section 92-9; (2) Make the videotape available at the next regular meeting; and (3) Make no decisions at the meeting. (L 1995, c 212, § 1 ] (The text of §92-3.5 was taken from the 1998 Cumulative Supplement of the Hawaii Revised Statutes.] §92-3.5 Meeting by videoconference; notice; quorum. (a) A board may hold a meeting by videoconference; provided that the videoconference system used by the board shall allow both audio and visual interaction between all members of the board participating in the meeting and the public attending the meeting, at any videoconference location. The notice required by section 92-7 shall specify all locations at which board members will be physically present during a videoconference meeting, and the public shalt be allowed to attend the meeting at any such location. (b) Any board member participating in a meeting by videoconference shall be considered present at the meeting for the purposes of determining compliance with the quorum and voting requirements of the board. (c) A meeting held by videoconference shall be terminated if both audio and video communication cannot be maintained with all locations where the meeting is being held, even if a quorum of the board is physically present in one location. (d) Each board shall adopt rules in accordance with chapter 91 regarding the use of and the procedures to be followed in a meeting held by videoconference, before the meetings are held. [L 1994, c 121, § 1 ] §92-4 Executive meetings, A board may hold an executive meeting dosed to the public upon an affirmative vote, taken at an open meeting, of two-thirds of the members present; provided the affirmative vote constitutes a majority of the members to which the board is entitled. A meeting closed to the public shall be limited to matters exempted by section 92-5. The reason for holding such a meeting shall be publidy announced and the vote of each member on the question of holding a meeting closed to the public shall be recorded, and entered into the minutes of the meeting. (L 1975, c 166, pt of § 1; am L 1985, c 278, §21 Attorney General Opinions Transcript of agency hearing is a public record. Att. Gen. Op. 64-4. Executive meeting to develop criteria for superintendent of education position may not be closed. Att. Gen. Op. 75-11. Case Notes Certain police records not public records. 42 H. 14, (decided prior to enactment of section). §92-5 Exceptions. (a) A board may hold a meeting dosed to the public pursuant to section 92-4 for one or more of the following purposes: (1 } To consider and evaluate personal information relating to individuals applying for professional or vocational licenses cited in section 26-9 or both; (2) To consider the hire, evaluation, dismissal, or discipline of an officer or employee or of 3 of 13 217/00 6:24 AM Act I37 http:J/www.state.hi.us/oip/Act%20I37.htm charges brought against the officer or employee, where consideration of matters affecting privacy will be involved; provided that rf the individual concerned requests an open meeting, an open meeting shall be held; (3) To deliberate concerning the authority of persons designated by the board to conduct labor negotiations or to negotiate the acquisition of public property, or during the conduct of such negotiations; (4) To consult with the board's attorney on questions and issues pertaining to the board's powers, duties, privileges, immunities, and liabilities; (5) To investigate proceedings regarding criminal misconduct; (6) To consider sensitive matters related to public safety or security; and (7) To consider matters relating to the solicitation and acceptance of private donations. (b) In no instance shall the board make a decision or deliberate toward a decision in an executive meeting on matters not directly related to the purposes specified in subsection (a). No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power. (L 1975, c 166, pt of § 1; am L 1985, c 278, §3; gen ch 1985; am L 1996, c 267, §3; am L 1998, c 48, § 1 ] Attorney General Opinions Subsection (a)(1) is applicable only when a specific individual is involved. Att. Gen. Op. 75-11. Even if there is no quorum, meeting to discuss official business may be prohibited unless sunshine law followed. Att. Gen. Op. 85-27. Subsection (a)(2) and §92-9 read together permit board and commission members to disclose some matters deliberated or decided in executive session, but not matters inconsistent with subsection (a)(2). Att. Gen. Op. 94-1. [§92-6 AMENDED. "Criminal injuries compensation commission" changed to "crime victim compensation commission". L 1998, c 240, §6.] §92-8 Judicial branch, quasi judicial boards and investigatory functions; applicability. (a) This part shall not appty: (1) To the judicial branch. (2) To adjudicatory functions exercised by a board and governed by sections 91-8 and 91-9, or authorized by other sections of the Hawaii Revised Statutes. !n the application of this subsection, boards exercising adjudicatory functions include, but are not limited to, the following: (A) Hawaii labor relations board, chapters 89 and 377; (B) Labor and industrial relations appeals board, chapter 371; (C) Hawaii paroling authority, chapter 353; (D) Civil service commission, chapter 26; 6 of 13 ?J7/~ 6:24 AM Act 137 http://www.state.hi.us/oip/Act%20137.htm (E) Board of trustees, employees' retirement system of the State of Hawaii, chapter 88; (F) Crime victim compensation commission, chapter 351; and (G) State ethics commission, chapter 84. (b) Notwithstanding provisions in this section to the contrary, this part shall apply to require open deliberation of the adjudicatory functions of the land use commission. (L 1975, c 166, pt of § 1; am L 1976, c 92, § 8; am L 1985, c 25s1, § 11) Rules of Court Applicability of Hawaii Rules of Civil Procedure, see HRCP rule 81(b}(12}. Case Notes County planning commission's closed deliberations permissible under this section despite open meeting mandate of section 92-3. 64 H. 431, 643 P.2d 55. Adjudicatory functions include adoption of conclusions of law. 4 H. App. 633, 675 P.2d 784. §92-7 Notice. (a) The board shall give written public notice of any regular, special, or rescheduled meeting, or any executive meeting when anticipated in advance. The notice shall include an agenda which lists all of the items to be considered at the forthcoming meeting, the date, time, and place of the meeting, and in the case of an executive meeting the purpose shall be stated. (b) The board shall file the notice in the office of the lieutenant govemor or the appropriate county clerk's office, and in the board's office for public inspection, at least six calendar days before the meeting. The notice shall also be posted at the site of the meeting whenever feasible. (c) If the written public notice is filed in the office of the lieutenant govemor or the appropriate county Gerk's office less than six calendar days before the meeting, the lieutenant govemor or the appropriate county clerk shall immediately notify the chairperson of the board, or the director of the department within which the board is established or placed, of the tardy filing of the meeting notice. The meeting shall be canceled as a matter of law, the chairperson or the director shall ensure that a notice canceling the meeting is posted at the place of the meeting, and no meeting, shall be held. (d) No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a sign cant number of persons. Items of reasonably major importance not decided at a scheduled meeting shall be considered only at a meeting continued to a reasonable day and time. (e) The board shall maintain a list of names and addresses of persons who request notification of meetings and shall mail a copy of the notice to such persons at their last recorded address no later than the time the agenda is filed under subsection (b). [L 1975, c 166, pt of § 1; am L 1976, c 212, §2; am L 1984, c 271, § 1; am L 1985, c 278, §4; am L 1995, c 13, §2] ' Attorney General Opinions 7 of 13 217/00 b:24 AM Act 137 http://www.state.hi.us/oiplAct%20137.htrn This section and sections 92-1 and 92-9 require commission to specify subject matter of items on public meeting agenda. Not sufficient to list broad categories of items. Att. Gen. Op. 85-2. Filing deadline should be established by using day, rather than hour increments. Att. Gen. Op. 92-06. §92-8 Emergency meetings. (a) If a board finds that an imminent peril to the public health, safety, or welfare requires a meeting in less time than is provided for in section 92-7, the board may hold an emergency meeting provided that: (1 }The board states in writing the reasons for its findings; (2) Two-thirds of all members to which the board is entitled agree that the findings are correct and an emergency exists; (3) An emergency agenda and the findings are filed with the office of the lieutenant governor or the appropriate county clerk's office, and in the board's office; and (4) Persons requesting notification on a regular basis are contacted by mail or telephone as soon as practicable. (b) If an unanticipated event requires a board to take action on a matter over which it has supervision, control, jurisdiction, or advisory power, within less time than is provided for in section 92-7 to notice and convene a meeting of the board, the board may hold an emergency meeting to deliberate and decide whether and how to act in response to the unanticipated event; provided that: (1) The board states in writing the reasons for its finding that an unanticipated event has occurred and that an emergency meeting is necessary and the attorney general concurs that the conditions necessary for an emergency meeting under this subsection exist; (2) Two-thirds of all members to which the board is entitled agree that the conditions necessary for an emergency meeting under this subsection exist; (3) The finding that an unanticipated event has occurred and that an emergency meeting is necessary and the agenda for the emergency meeting under this subsection are filed with the office of the lieutenant governor or the appropriate county clerk's office, and in the board's office; (4) Persons requesting notification on a regular basis are contacted by mail or telephone as soon as practicable; and (5) The board limits its action to only that action which must be taken on or before the date that a meeting would have been held, had the board noticed the meeting pursuant to section 92-7. (c) For purposes of this part, an "unanticipated event" means: (1) An event which members of the board did not have sufficient advance knowledge of or reasonably could not have known about from information published by the media or information generally available in the community; (2) A deadline established by a legislative body, a court, or a federal, state, or county agency beyond the control of a board; or (3) A consequence of an event for which reasonably informed and knowledgeable board • members could not have taken all necessary action. [L 1975, c 166, pt of § 1; am L 1996, c 267, §4] 8 of 13 2/7/00 6:24 AM Act 137 http://www.state.tu.uslo?p/ACt%Z(JI3"l.htm §92-9 Minutes. (a) The board shall keep written minutes of all meetings. Unless otherwise required by law, neither a full transcript nor a recording of the meeting is required, but the written minutes shall give a true reflection of the matters discussed at the meeting and the views of the participants. The minutes shall include, but need not be limited to: (1) The date, time and place of the meeting; (2) The members of the board recorded as either present or absent; {3) The substance of all matters proposed, discussed, or decided; and a record, by individual member, of any votes taken; and {4) Any other information that any member of the board requests be included or reflected in the minutes. (b) The minutes shall be public records and shall be available within thirty days after the meeting, except where such disclosure would be inconsistent with section 92-5; provided that minutes of executive meetings may be withheld so long as their publication would defeat the lawful purpose of the executive meeting, but no longer. {c) All or any part of a meeting, of a board may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction, except when a meeting is closed pursuant to section 92-4; provided the recording does not actively interfere with the conduct of the meeting,. (L 1975, c 166, pt of § 1 ] Attorney General Opinions This section and sections 92-1 and 92-7 require commission to specify subject matter of items on public meeting agenda; agency responsible to make its minutes available to public. Att. Gen. Op. 85-2. This section and §92-5(a)(2) read together permit board and commission members to disclose some matters deliberated or decided in executive session, but not matters inconsistent with §92-5(a)(2). Att. Gen. Op. 94-1. §92-10 Legislative branch; applicability. Notwithstanding any provisions contained in this chapter to the contrary, open meeting requirements, and provisions regarding enforcement, penalties and sanctions, as they are to relate to the state legislature or to any of its members shall be such as shall be from time to time prescribed by the respective rules and procedures of the senate and the house of representatives, which rules and procedures shall take precedence over this part. Similarly, provisions relating to notice, agenda and minutes of meetings, and such other requirements as may be necessary, shall also be governed by the respective ru?es and procedures of the senate and the house of representatives. [L 1975, c 166, pt of §11] §92-11 Voidability. Any final action taken in violation of sections 92-3 and 92-7 shall be voidable upon proof of wilful violation. A suit to void any final action shall be commenced within ninety days of the action. [L 1975, c 166, pt of §1 ] Case Notes Violation not wilful. 4 H. App. 633, 675 P.2d 784. §92-12 Enforcement. {aj The attorney general and the prosecuting attorney shall enforce this part. ' (b) The circuit courts of the State shal{ have jurisdiction to enforce the provisions of this part by injunction or other appropriate remedy. 9 of 13 2/7/00 6:24 AM Act 137 http://www.state.hi.us/oip/Act%20137.htm (c) Any person may commence a suit in the circuit court of the circuit in which a prohibited act occurs for the purpose of requiring compliance with or preventing violations of this part or to determine the applicability of this part to discussions or decisions of the public body. The court may order payment of reasonable attorney fees and costs to the prevailing party in a suit brought under this section. (d) The proceedings for review shall not stay the enforcement of any agency decisions; but the reviewing court may order a stay if the following criteria have been met: (1) There is likelihood that the party bringing the action will prevail on the merits; {2) Irreparable damage will result if a stay is not ordered; (3) No irreparable damage to the public will result from the stay order, and (4) Public interest will be served by the stay order. [L 1975, c 166, pt of § 1; am L 1985, c 278, §5] Case Notes Authorizes "any person" to "commence a suit in the circuit court of the circuit in which a prohibited act occurs," regardless of the person's participation in any proceeding. 74 H. 365, 846 P.2d 882. Award of attomeys' fees under subsection (c) intended to apply where citizen prevails against government; prevailing defendant private party thus not entitled to attomeys' fees under this subsection. 86 H. 132, 948 P.2d 122. §92-13 Penalties. Any person who wilfully violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law. [L 1975, c 166, pt of § 1 ] PART II. BOARDS: QUORUM; GENERAL POWERS Note The sections of this part are renumbered to eliminate duplication of the section numbers in Part 1, as enacted by L 1975, c 166. §92-15 Boards and commissions; quorum; number of votes necessary to validate acts. Whenever the number of members necessary to constitute a quorum to do business, or the number of members necessary to validate any act, of any board or commission of the State or of any political subdivision thereof, is not specified in the law or ordinance creating the same or in any other law or ordinance, a majority of all the members to which the board or commission is entitled shall constitute a quorum to do business, and the concurrence of a majority of all the members to which the board or commission is entitled shall be necessary to make any action of the board or commission valid; provided that due notice shall have been given to all members of the board or commission or a bona fide attempt shall have been made to give the notice to all members to whom it was reasonably practicable to give the notice. This section shall not invalidate any act of any board or commission performed prior to April 20, 1937, which, under the general law then in effect, would otherwise be valid. [L 1937, c 40, § 1; RL 1945, §482; RL 1955, §7-26; HRS §92-11; ren §92-15] Attorney General Opinions "Concurrence" means affirmative vote, not abstention. Att. Gen. Op. 85-11. Case Notes 10 13 2/7/00 6:24 AM Act 13? http://www.state.lu.us/oip/Act"/oZ~137.hun Where the required majority exists without the vote of the disqual~ed member, disqualified member's participation wilt not invalidate the result. 63 H. 222, 624 P.2d 1353. §92-16 Power of boards to issue subpoenas, administer oaths, appoint masters, etc. (a) Any board (which term as used in this section means any board or commission of the State or of any political subdivision of the State) which is by law authorized or required to hold hearings for the purpose of receiving evidence, shalt have the following powers, in addition to those provided for by any other law, in connection with the hearings: (1) To subpoena witnesses upon subpoena signed by the chairperson, acting chairperson, or any member, or executive secretary, or executive officer of or under the board who is so authorized by the board. The subpoenas shall be served in the same manner, and the witnesses subpoenaed shall be entitled to the same witness fees, as in the case of a witness subpoenaed to testify before a circuit court. Any circuit court, upon the written application of any member of the board or of any master appointed by it as in this section provided, shall have power to enforce obedience to, the subpoena by contempt proceedings. (2) Through the chairperson, acting chairperson, or any member of the board, or through the executive secretary or executive officer of or under the board so authorized by the board, to administer oaths to witnesses and require the testimony of such witnesses on matters germane to the subject under inquiry at the hearing. Any party to the hearing upon request shall be allowed to be represented by counsel and be allowed reasonable rights of examination and cross-examination of witnesses. Any false swearing by a witness at the hearing, upon any material issue or matter shall constitute perjury, and be punishable as such. (3) To appoint, by written resolution adopted by vote of a majority of the board, a master or masters (who may, but need not be, a member or members of the board, or a disinterested attorney at law or other person, or a combination of any of them) to hold the hearing and take testimony upon the matters involved in the hearing and report to the board the master's or their findings and recommendations, together with a transcript of the hearing or a summary of the evidence and testimony taken thereat, and to adopt the findings and recommendations, in whole or in part, or otherwise act upon the report and transcript or summary, and, in the board's discretion, to hold further hearings and take further evidence and testimony in connection therewith, before taking final action thereon. Any master may be paid such reasonable compensation as shall be determined by the board, provided that no member of the board shall be eligible to receive any additional compensation for services as master. (b) Subpoena fees, master's fees, and other expenses in connection with the hearings shall be payable out of any moneys appropriated or available for expenditure by the board for personal services or current expenses, or both. Any master so appointed shall have all of the powers which would be held and enjoyed by the board or the chairperson or any member thereof in connection with the hearing. {L 1949, c 329, § 1; RL 1955, §7-27; HRS §92-12; am L 1973, c 3 1, pt of §21; ren §92-16; gen ch 1985, 1993) §92-17 Consumer complaints; procedures and remedies. (a) All boards as defined by section 92-2(1) established to license or regulate any profession, ocxupation, industry, or service, shall receive complaints from consumers and other persons claiming to be aggrieved by business practices related to their respective jurisdictions. (b) Upon receipt of a written complaint or upon receipt of an investigation report generated by the board on its own motion or upon staff investigation which establishes an alleged violation of any provision of law or rule, the board or its authorized representative shall notify the licensee or person regulated of the charge against the licensee or person and conduct a hearing in conformity with chapter 91 if the matter cannot be settled informally. If the board finds that the charge constitutes a violation, the board may order 11 of 13 2/7/00 6:24 AM Act 137 http://www.state.hi.usloip/Act%20137.htm one or more of the following remedies as appropriate relief: (1) Refunding the money paid as fees for services; (2) Correcting the work done in providing services; (3) Revocation of the licensee's permit or license; (4) Suspension of the licensee's permit or license; (5) Imposition of a fine; and (6) Any other reasonable means to secure relief as determined by the board. The board may also assess the licensee, as a penalty, any cost incurred in publishing the notice of hearing when service by registered or certified mail to the address listed on the licensee's record is unsuccessful. (c) Notwithstanding any provision to the contrary: (1) No license or permit shall be suspended by the board for a period exceeding five years. {2) A person whose license or permit has been revoked by the board may not reapply for a license until the expiration of at least five years from the effective date of the revocation of the license or permit. (3) A suspended license or permit shall be reinstated at the end of the suspension; provided that the suspension does not carry forward to the next license period, and the person satisfies all licensing requirements and conditions contained in the order of the suspension. If a suspension carries forward to the next license period, the board shall not renew the suspended license or permit during the usual renewal period. At the end of the suspension period, a person whose license or permit was suspended may be reinstated upon filings a reinstatement form provided by the board and payment of the renewal fees, satisfaction of any other renewal requirements, and fulfillment of conditions, if any, contained in the order of suspension. If the person fails to file for reinstatement within thirty days after the end of the suspension, the person's license or permit shall be forfeited. (d) The failure or refusal of the licensee to comply with any board order, including an order of license suspension, shall also constitute grounds for further disciplinary action, including a suspension or revocation of license, imposition of which shall be subject to chapter 91 and the procedural rules of the board. The board may also apply to any circuit court for injunctive relief to compel compliance with the board's order. Where appropriate, the board shall refer for prosecution to the proper authority any practice constituting a violation which is subject to criminal penalty. (e) If the subject matter of the complaint does not come within its jurisdiction, or if it is found that the charge does not constitute a violation, the board shall notify and inform the complainant in writing with regard to the reasons for its inability to act upon the complaint. (f) The complainant and the licensee or person regulated may agree to resolve the complaint through final and binding arbitration pursuant to chapter 658. In the event of an agreement to arbitrate, the board may enter an order dismissing any proceeding instituted pursuant to subsection (b); provided that the order of dismissal may be conditioned upon prompt and complete compliance with the arbitrator's award. In the event that the licensee or person regulated fails to comply with the terms of the arbitrator's award, the board may reopen the proceeding and may, after a hearing, in conformity with chapter 91, order one or more of the remedies set forth in subsection (b). Notwithstanding any provision of chapter 658 to the contrary, an arbitration agreement 12 of 13 2/?!00 6:24 AM Act 137 http:Nwww.state.hi.us/oip/Act%20137.htm entered into pursuant to this section shall be approved by the board, and the parties shall agree on an arbitrator within five days after execution of the agreement. ff the parties fail to agree on an arbitrator within the time above prescribed, the board may appoint an arbitrator from a list of arbitrators maintained for that purpose by the department of commerce and consumer affairs. (g) A fine levied in a final order of a board or commission pursuant to subsection (b) shall be confirmed as a judgment by a circuit court in which the respondent resides or has property or in which the act complained of had occur-ed, by filing the board or commission's final order any time after thirty days after the issuance of that final order. The judgment issued thereon shall have the same force and effect and be enforceable and collectible as any other judgment issued in the circuit court. Nothing herein shall impair the right of the board or commission to apply to the circuit court for injunctive relief pursuant to subsection (d). [L 1974, c 117, §2; HRS §92-13; ren §92-17; am L 1977, c 94, §1;amL1978,c158,§1;amL1982,c174,§landc204,§8; amL1983,c181,§1; am L 1984, c 45, §3; am L 1985, c 45, §1; gen ch 1985; am L 1986, c 274, §2; am L 1993, c 109, §1 ] Last modified: December 07,1998 13 of 13 2/7/00 6:24 AM Act 137 htcp://www.state.lu.us/oip/Act%20137.htrn entered into pursuant to this section shall be approved by the board, and the parties shall agree on an arbitrator within five days after execution of the agreement. ff the parties fail to agree on an arbitrator within the time above prescribed, the board may appoint an arbitrator from a list of arbitrators maintained for that purpose by the department of commerce and consumer affairs. (g) A fine levied in a final order of a board or commission pursuant to subsection (b) shall be confirmed as a judgment by a circuit court in which the respondent resides or has property or in which the act complained of had occurred, by filing the board or commission's final order any time after thirty days after the issuance of that final order. The judgment issued thereon shall have the same force and effect and be enforceable and collectible as any other judgment issued in the circuit court. Nothing herein shall impair the right of the board or commission to apply to the circuit court for injunctive relief pursuant to subsection (d). [L 1974, c 117, §2; HRS §92-13; ren §92-17; am L 1977, c 94, §1;amL1978,c158,§1;amL1982,c174,§1 andc204,§8; amL1983,c181,§1; am L 1984, c 45, §3; am L 1985, c 45, §1; gen ch 1985; am L 1986, c 274, §2; am L 1993, c 109, §1] t,~ t,~oa~.d: December o7,199s 13 of 13 2/7100 6:24 AM