HomeMy WebLinkAboutSunshine Law January 2013 GUIDEOPEN MEETINGS
Guide to
“The Sunshine Law”
for State and County Boards
Office of Information Practices
State of Hawaii
January 2013
Office of Information Practices
No. 1 Capitol District Building
250 South Hotel Street, Suite 107
Honolulu, Hawaii 96813
Tel. (808) 586-1400
www.hawaii.gov/oip
OPEN MEETINGSGuide to“The Sunshine Law”for State and County BoardsJanuary 2013Part I of Chapter 92,Hawaii Revised StatutesCONTENTSIntroduction ............................................................................ 31. General Information ........................................................ 52. Public Meetings.................................................................. 7Meetings DefinedTelephonic and Videoconference MeetingsTestimonyRecessing and Reconvening MeetingsDiscussions Between Board Members Outside of a MeetingSocial EventsPermitted Interactions3. Executive Meetings ........................................................ 194. Other Types of Meetings .............................................. 23Emergency MeetingsUnanticipated EventsLimited Meetings5. Procedural Requirements ........................................... 26Notice and AgendaMinutesRecordings
OPEN MEETINGS - JULY 2012 3 2OPEN MEETINGS - JULY 2012This Open Meetings Guide was prepared by the Office ofInformation Practices (“OIP”) as a reference tool for boardmembers and members of the public to understand the openmeetings requirements of Hawaii’s “Sunshine Law” (Part I ofChapter 92, HRS). This edition of the Open Meetings Guide isapplicable to all state and county boards, except neighborhoodboards. A separate edition was developed by OIP specificallyfor neighborhood boards, which have some unique provisionsunder Part VII of Chapter 92, HRS.Every year, in response to hundreds of questions and complaintsabout the manner in which state and county boards conducttheir business, OIP initiates numerous investigations into al-leged Sunshine Law violations. Many of the questions, com-plaints, and violations arise because of a misunderstanding ora lack of understanding, and sometimes both, about the stat-ute and its requirements.The Sunshine Law imposes numerous requirements andrestrictions on the manner in which a state or county boardcan conduct its business. Many board members, especially thosewho serve or have served on non-governmental boards, aresurprised by the restrictions placed on the manner in whichthey, in their capacity as state or county board members, mustINTRODUCTION6. Suit to Void Board Action ............................................ 307. Office of Information Practices ................................. 31Appendices:Executive Meetings Flowchart ............................. 32Public Meeting Notice Checklist ......................... 33The Law: Chapter 92, Part I (Meetings), updated through the 2012 legislative session ............ 34Section 26-35, Hawaii Revised Statutes: Administrative Supervision of Boards and Commissions ................................. 44Sunshine Law: Summaries of OIP Opinion Letters........................................... 46Opinion Letter Index............................................... 62
OPEN MEETINGS - JULY 2012 5 4OPEN MEETINGS - JULY 2012GENERAL INFORMATION What is the Sunshine Law?The Sunshine Law is Hawaii’s open meetings law. It governsthe manner in which all state and county boards must conducttheir business. The law is codified at part I of chapter 92, HawaiiRevised Statutes (“HRS”).What is the general policy and intentof the Sunshine Law?The intent of the Sunshine Law is to open up governmentalprocesses to public scrutiny and participation by requiringstate and county boards to conduct their business as openly aspossible. The Legislature expressly declared that “it is thepolicy of this State that the formation and conduct of publicpolicy—the discussions, deliberations, decisions, and actionsof governmental agencies—shall be conducted as openly aspossible.”In implementing this policy, the Legislature directed that theprovisions in the Sunshine Law requiring open meetings beliberally construed and the provisions providing for exceptionsto open meeting requirements be strictly construed againstclosed meetings. Thus, with certain specific exceptions, alldiscussions, deliberations, decisions, and actions of a boardrelating to the official business of the board must be conductedin a public meeting.In other words, absent a specific statutory exception, boardbusiness cannot be discussed in secret. There must be publicnotice; public access to the board’s discussions, deliberations,and decisions; opportunity for public testimony; and boardminutes.conduct board business.For instance, with a few exceptions, board members are notallowed to discuss board business with each other outside of ameeting, including by telephone or through e-mail or socialmedia. In addition, a board usually cannot consider at a meet-ing matters not included in its published agenda.If you are elected or appointed to a government board, alongwith the honor and privilege of serving, there is the addedresponsibility of learning and complying with the SunshineLaw. We hope that this guide will assist you and members ofthe public in generally understanding the statute’srequirements.We have attempted to present the law in “plain English,”through the types of questions that are most frequently asked.We have also included the statute, a flowchart regardingexecutive meetings, and a checklist for meeting notices.Finally, we have included short summaries of the opinionsissued by OIP providing interpretation of the Sunshine Law.Please note that the comments contained in this guide are gen-eral in nature. If you have questions about specific factual cir-cumstances that may not be answered by this guide, you shouldconsult with your attorney, your board’s attorney, or OIP. OIPprovides an “attorney of the day” service through which youmay speak with an OIP staff attorney to receive general legalguidance on and assistance with Sunshine Law issues.Thank you for your participation in Hawaii’s open government. Cheryl Kakazu Park Director
OPEN MEETINGS - JULY 2012 7 6OPEN MEETINGS - JULY 2012PUBLIC MEETINGSMEETINGS DEFINEDAre all meetings of state and county boardsopen to the public?Generally, yes. All meetings of state and county boards arerequired to be open to the public unless an executive meetingor other exception is authorized under the law. The openmeeting requirement also applies to the meetings of a board’scommittees or subgroups.Are site inspections, presentations, workshops,retreats and other informal sessions that involveboard business considered to be meetings opento the public?Generally, yes. Apart from the permitted interactions set forthin section 92-2.5, HRS, which are discussed below, the SunshineLaw requires all of a board’s discussions, deliberations,decisions, and actions regarding matters over which the boardhas supervision, control, jurisdiction, or advisory power to beconducted in either an open or executive meeting.Moreover, based upon the express policy and intent of thelegislature—that the formation and conduct of public policybe conducted as openly as possible—OIP interprets the statuteto require that any site inspection or presentation regarding amatter before the board, or which is reasonably likely to comebefore the board for a decision in the foreseeable future, beconducted as part of a properly noticed meeting.That conclusion is based upon OIP’s determination that thesite inspection or the presentation is an integral part of theboard’s deliberation and decision-making process, two typesWhat boards are covered by the Sunshine Law?There is no list that specifically identifies the boards that aresubject to the Sunshine Law. As a general statement, theSunshine Law applies to all state and county boards,commissions, authorities, task forces, and committees that havesupervision, control, jurisdiction, or advisory power over aspecific matter and are created by the State Constitution, statute,county charter, rule, executive order, or some similar official act.A committee or other subgroup of a board that is subject to theSunshine Law is also considered to be a “board” for purposes ofthe Sunshine Law and must comply with the statute’srequirements.Examples of state and county boards that are subject to theSunshine Law include the county councils, the neighborhoodboards, the Board of Water Supply, the liquor commissions,the board of the Hawaii Tourism Authority, the policecommissions, the board of the Aloha Tower DevelopmentCorporation, the Board of Land and Natural Resources, theBoard of Agriculture, the Board of Health, the board of theHawaii Health Systems Corporation, the University of Hawaii’sBoard of Regents, the Board of Education, the island burialcouncils, the Small Business Regulatory Review Board, the RealEstate Commission, the board of the Natural Energy Laboratoryof Hawaii Authority, and the board of the Stadium Authority.The Sunshine Law does not apply to the judicial branch or tothe adjudicatory functions exercised by certain boards (withthe exception of Land Use Commission hearings, which areopen to the public). The legislative branch sets its own rulesand procedures concerning notice, agenda, minutes, enforce-ment, penalties, and sanctions, which take precedence oversimilar provisions in the Sunshine Law.What government agency administersthe Sunshine Law?Since 1998, OIP has administered the Sunshine Law. OIP alsooversees the Uniform Information Practices Act (Modified)(“UIPA”), chapter 92F, HRS, which is commonly referred to asHawaii’s “open records” or freedom of information act.
OPEN MEETINGS - JULY 2012 9 8OPEN MEETINGS - JULY 2012member attending from a private location must identify thelocation and any persons who are present at that location withthe member. To protect the disabled member’s privacyinterests and because members of the public are not able toparticipate from the private location, the disabled member’slocation during a meeting may be generally identified, such as“home” or “hospital,” without providing an exact address.When noticing a meeting to be held using interactive conferencetechnology, boards must indicate all locations where boardmembers will be physically present, and must indicate thatthe public can attend the meeting at any of the specifiedlocations. A disabled member’s private address need not beidentified as a meeting location on the notice.If copies of visual aids are brought to the meeting by boardmembers or members of the public, they must be available toall meeting participants at all locations. If audio-onlyinteractive conference technology (e.g., teleconference) is beingused, all visual aids must be available within 15 minutes to allparticipants, or those agenda items for which visual aids arenot available cannot be acted upon at the meeting.TESTIMONYMust a board accept testimony at its meetings?Yes. Boards are required to accept testimony from the public,both oral and written, on any item listed on the meeting agenda.Boards can decline to accept public testimony that is unre-lated to a matter listed on the agenda.Can the public provide testimony from a remotelocation by telephone, videoconference, or usingother interactive technology?OIP has interpreted HRS section 92-3.5 to allow board mem-bers' remote participation in a meeting, and when board mem-bers are present at more than one location, members of theof actions that the statute expressly requires be conducted ina properly noticed meeting. If it is not practical to allow thepublic to attend a site inspection as part of a meeting, a por-tion of the board may still be able to participate in the siteinspection under certain circumstances. See Permitted Inter-actions, discussed below.With respect to board retreats, if board business is to bediscussed at the retreat, the retreat must be conducted as ameeting, which requires public notice, the keeping of minutes,the opportunity for public testimony, and public access to theboard’s discussions, deliberations, and decisions.TELEPHONIC AND VIDEOCONFERENCE MEETINGSMay a board hold a meeting via telephone?Yes. As of July 1, 2012, board members may participate in aboard meeting by “interactive conference technology,” whichincludes teleconference, Skype, videoconference, or voice overinternet protocol. See answer below for further details.May a board convene a meetingvia videoconference?Board members may remotely participate in a board meetingthrough “interactive conference technology,” which includesteleconference, Skype, videoconference, or voice over internetprotocol. If audio communication cannot be maintained at alllocations, then the meeting must be terminated, even if aquorum of board members is physically present in one location.Members generally may only participate in a meeting frompublic locations listed in the meeting notice. But “a boardmember with a disability that limits or impairs the member’sability to physically attend the meeting” may attend a meetingvia a connection by audio and video means (i.e., byvideoconference, Skype) from a private location not open tothe public, such as a home or hospital room. A disabled board
OPEN MEETINGS - JULY 2012 11 10OPEN MEETINGS - JULY 2012public may participate (including providing testimony) fromany site listed on the notice as a location where board mem-bers would be present. However, this section has NOT beeninterpreted to require a board to allow public testimony orparticipation from a remote location which has not been prop-erly noticed and when there are no board members present atthat location and participating remotely in the meeting. Thus,a board may choose, but is not required by the Sunshine Law,to hear speakerphone testimony from members of the publicwho are not physically present at a meeting location. Simi-larly, a board may accept public testimony via videoconferenceor Skype from sites that were not included in the public no-tice. A board may also list in its notice a courtesyvideoconference or teleconference site where the public canattend and offer testimony, even though no board member willbe physically present, and the board would not be required tocancel the remainder of its meeting if a courtesy site were tolose its audio or video connection to the meeting site. To avoidpublic confusion, however, the board's notice must make clearthat no board member will be physically attending from thatvideoconferenced or teleconferenced site and that the meet-ing will continue even if the connection to the site is lost.Is a board required to read aloud the writtentestimony during its meeting?No. There is no requirement that a board read aloud each pieceof written testimony during its meeting for the benefit of thoseattending the meeting. A board, however, must ensure thatwritten testimony is distributed to each board member for thatmember’s consideration before the board’s action. Moreover,upon request, any member of the public is entitled to receivecopies of the written testimony submitted to the board.Is written communication received by onlyone board member regarding a matter onthe board’s meeting agenda consideredwritten testimony?Possibly. For instance, on occasion, the board chair or individualboard members may receive e-mail or other writtencorrespondence regarding a matter on the board’s agenda. If awriting is received prior to the meeting and reasonably appearsto be testimony relating to an agenda item (as opposed tocorrespondence directed only to the recipient), irrespective ofwhether the writing is specifically identified as “testimony,”the board member receiving the communication must makereasonable efforts to cause the testimony to be distributed tothe other members of the board.How can a board avoid the possible problemof only one board member receiving testimonyintended for the entire board?To avoid possible confusion as to whether an e-mail or otherwritten communication received by only one board member isintended as to be “testimony” to the entire board, the meetingnotice could specifically identify a mailing address and ane-mail address to where written testimony should be directed.While such a process does not completely relieve individualboard members of their obligation to consider whether writ-ten communication that they individually receive is intendedby the sender to be “testimony” for consideration by the entireboard, it may reduce the likelihood of written testimony beingreceived by individual board members and may excuse a boardmember’s reasonable failure to recognize that a written com-munication was intended to be “testimony.”How must a board distribute writtentestimony to its members?The board is empowered to determine how to best and mostefficiently distribute the testimony to its members, e.g.,
OPEN MEETINGS - JULY 2012 13 12OPEN MEETINGS - JULY 2012DISCUSSIONS BETWEEN BOARD MEMBERSOUTSIDE OF A MEETINGCan board members discuss board businessoutside of a meeting?The Sunshine Law generally prohibits discussions about boardbusiness between board members outside of a properly noticedmeeting, with certain statutory exceptions. While the SunshineLaw authorizes certain interactions between board membersoutside of a meeting, the statute expressly cautions that suchinteractions cannot be used to circumvent the requirementsor the spirit of the law to make a decision or to deliberatetowards a decision upon a matter over which the board hassupervision, control, jurisdiction, or advisory power.In practical terms, this means that board members cannot“caucus” or meet privately before, during, or after a meetingto discuss business that is before the board or that is reasonablylikely to come before the board in the foreseeable future.The statute, however, does not prohibit discussion betweenboard members outside of a properly noticed meeting aboutmatters over which the board does not have supervision, con-trol, jurisdiction, or advisory power. For instance, where thechair of a board has the sole discretion and authority to dic-tate how the board will expend certain funds allocated to it,the board has no “power” over that decision and, therefore,board members may discuss the expenditure outside of a prop-erly noticed meeting.Does the Sunshine Law also prohibit boardmembers from communicating betweenthemselves about board business by telephone,memo, fax, or e-mail outside of a meeting?Yes. Board members cannot discuss board business betweenthemselves when they are outside of a properly noticedmeeting by way of the telephone or by memoranda, fax, e-mail,or social media, such as Facebook. As a general rule, if thewhether to transmit it electronically or to circulate copies inpaper format, so long as the testimony is distributed in a waythat is reasonably calculated to be received by each board member.May a board limit the length of each person’soral testimony offered at its meetings?Yes. Boards are authorized to adopt rules regarding oraltestimony, including, among other things, rules setting limitson the amount of time that a member of the public may testify.For instance, a council could adopt rules limiting each person’soral testimony to three minutes. Boards also are not requiredto accept oral testimony unrelated to items on the agenda forthe meeting.RECESSING AND RECONVENING MEETINGSCan a board recess and later reconvenea meeting?Boards are authorized to recess their meetings, both publicand executive meetings, and reconvene at another date andtime to continue and/or complete public testimony, discussion,deliberation, and decision-making relating to the items listedon the agenda. The meeting must be continued to a reasonabledate and time, and the date, time, and location of thereconvened meeting must be announced at the time that themeeting is recessed.Can the meeting be reconvened at adifferent location?Yes. A board may reconvene a meeting at a location differentfrom where the meeting was initially convened, as long as theboard announces the location where the meeting is to be re-convened at the time when it recesses the meeting. OIP alsostrongly recommends that the new location be included in allannouncements and other such publications, if any, regardingthe reconvened meeting.
OPEN MEETINGS - JULY 2012 15 14OPEN MEETINGS - JULY 2012so long as they do not discuss official business that is pendingor that is reasonably likely to come before the board in theforeseeable future.If I am a board member, what should I do ifanother board member starts talking aboutboard business at a social event?The Sunshine Law is, for the most part, self-policing. It isheavily dependent upon board members understanding whatthey can and cannot do under the law. In the situation where aboard member raises board business with other board membersoutside of a meeting, board members should remind each otherthat such discussion can only occur at a duly noticed meeting.If a board member persists in discussing the matter, the otherboard members should not participate in the discussion andshould physically remove themselves from the discussion.PERMITTED INTERACTIONSWhat are “permitted interactions”?In 1996, the Legislature added six “permitted interactions” tothe law that are designed to address instances and occasionsin which members of a board may discuss certain board mattersoutside of a meeting and without the procedural requirements,such as notice, that would otherwise be necessary. The statutespecifically states that the “[c]ommunications, interactions,discussions, investigations, and presentations described in [thepermitted interaction] section are not meetings for purposesof [the Sunshine Law].”In 2008, the Legislature added a new permitted interactionfor neighborhood boards only. This neighborhood boardprovision was modified and extended to all Sunshine Lawboards in a new permitted interaction added in 2012. Anothernew permitted interaction relating to cancelled meetings wasalso added in 2012. All permitted interactions are summarizedbelow.statute prohibits board members from discussing boardbusiness face-to-face, board members cannot have that samediscussion through another type of media.Can board members discuss board businesswith non-board members outside of a meeting?Generally, yes. The Sunshine Law only applies to boards andtheir discussions, deliberations, decisions, and actions. Becausethe Sunshine Law does not apply to non-board members, aboard member may discuss board business with non-boardmembers outside of a meeting.It is contrary to the spirit of the statute, however, for a boardmember to engage in a public discussion with non-board mem-bers about a matter that is board business in the presence ofother board members. For instance, four county council mem-bers cannot participate in a discussion at a neighborhood boardmeeting about a matter that is council business, even if thecouncil members do not discuss the matter between them-selves. In OIP’s opinion, such an exchange is part of the dis-cussion and deliberation process that can only take place in aproperly noticed meeting. Additionally, board members shouldnot discuss with non-board members any matters discussedduring a closed executive session, or the members could riskwaiving the board’s ability to keep the matters confidential.SOCIAL EVENTSWhat about social and ceremonial eventsattended by board members?The Sunshine Law does not apply to social or ceremonial gath-erings at which board business is not discussed. Therefore,board members can attend functions such as Christmas par-ties, dinners, inaugurations, orientations, and ceremonialevents without posting notice or allowing public participation,
OPEN MEETINGS - JULY 2012 17 16OPEN MEETINGS - JULY 2012testimony or presentations. At the next duly noticed meetingof the board, the members who were present at the cancelledmeeting must provide the record and copies of the testimonyor presentations received at the cancelled meeting.Deliberation and decision-making on any item, for whichtestimony or presentation were received at the cancelledmeeting, can only occur at a subsequent duly-noticed meetingof the board.• Discussions With the Governor. Discussions between oneor more board members and the Governor are authorized tobe conducted in private, provided that the discussion does notcover a matter over which a board is exercising its adjudica-tory function.• Administrative Matters. Certain routine administrativematters, such as board budget or employment matters, can bediscussed between two or more members of a board and thehead of a department to which the board is administrativelyassigned.• Attendance at Informational Meetings or Presentations.In 2008, HRS § 92-82 was added to allow less than a quorum ofthe membership of a neighborhood board to attend an in-formational meeting or presentation at which official boardbusiness may be discussed, and may participate in discussionof the official board business, but only during and as part ofthe informational meeting or presentation. The meeting or pre-sentation cannot be specifically and exclusively organized forthe neighborhood board. After attending an informationalmeeting or presentation that included a discussion about offi-cial board business, the neighborhood board members mustreport at the next duly noticed meeting of their neighborhoodboard (1) their attendance, and (2) the official board businessmatters presented and discussed at the informational meet-ing or presentation.While the neighborhood board provision described above doesnot apply to all other Sunshine Law boards, a similar permittedinteraction was added to the Sunshine Law in 2012 to apply toall Sunshine Law boards. HRS § 92-2.5(e) now allows two orWhat are the types of “permitted interactions”allowed by the statute?• Two Board Members. Two board members may discussboard business outside of a meeting as long as no commitmentto vote is made or sought. Nevertheless, it would be contraryto the Sunshine Law for a board member to discuss the sameboard business with more than one other board memberthrough a series of one-on-one meetings.• Investigations. A board can designate two or more boardmembers, but less than the number of members that wouldconstitute a quorum of the board, to investigate mattersconcerning board business. The board members designated bythe board are required to report their resulting findings andrecommendations to the entire board at a properly noticedmeeting. This permitted interaction can be used by a board toallow some of its members (numbering less than a quorum) toparticipate in, for instance, a site inspection outside of ameeting or to gather information relevant to a matter beforethe board.• Presentations/Negotiations/Discussion. The board canassign two or more of its members, but less than the number ofmembers that would constitute a quorum of the board, topresent, discuss, or negotiate any position that the board hasadopted.• Selection of Board Officers. Two or more board members,but less than the number of members that would constitute aquorum of the board, can discuss between themselves theselection of the board’s officers.• Acceptance of Testimony at Cancelled Meetings. If aboard meeting must be cancelled due to lack of quorum orconference technology problems, the board members presentmay still receive testimony and presentations on agenda itemsfrom members of the public and may question them, so long asthere is no deliberation or decision-making at the cancelledmeeting. The members present must create a record of the oral
OPEN MEETINGS - JULY 2012 19 18OPEN MEETINGS - JULY 2012more members of a board, but less than a quorum, to attend aninformational meeting or presentation on matters relating toofficial board business, including a meeting of another entity,legislative hearing, convention, seminar, or communitymeeting, so long as the meeting or presentation was notspecifically and exclusively organized for or directed towardthe board members. The board members may participate indiscussions, even among themselves, so long as the discussionsoccur as part of the informational meeting or presentation andno commitment relating to a vote on the matter is made orsought. At the next duly noticed meeting of the board, themembers who attended the informational meeting orpresentation must report their attendance and the matterspresented and discussed that related to official board business.This new Sunshine Law provision thus allows less than aquorum of board members to attend, for example, neighborhoodboard meetings, legislative hearings, and seminars, at whichofficial board business is discussed, so long as no commitmentto vote is made and the subsequent reporting requirementsare met. The law is intended to improve communicationbetween the public and board members and to enable boardmembers to gain a fuller understanding of the issues andvarious perspectives. As with the rest of the law, this newpermitted interaction will be interpreted to preventcircumvention of the spirit of the Sunshine Law and its openmeeting requirements.EXECUTIVE MEETINGSWhat is an executive meeting?An executive meeting is a meeting of the board that is closedto the public. Executive meetings are authorized in eightspecific circumstances and cannot be convened for any otherpurpose.What are the eight purposes for which anexecutive meeting can be convened?• Licensee Information. A board is authorized to meet inexecutive session to evaluate personal information of appli-cants for professional and vocational licensees.• Personnel Decisions. A board may hold a meeting closedto the public to consider the hire, evaluation, dismissal ordiscipline of an officer or employee, if consideration of thematters may affect that individual’s privacy. However, if theperson who is the subject of the board’s meeting requests thatthe board conduct its business about him or her in an openmeeting, the request must be granted and an open meetingmust be held.• Labor Negotiations/Public Property Acquisition. A boardis allowed to deliberate in an executive meeting concerningthe authority of people designated by the board to conduct la-bor negotiations or to negotiate the acquisition of public prop-erty, or during the conduct of such negotiations.• Consult with Board’s Attorney. Boards are authorized toconsult in an executive meeting with their attorneys concerningthe board’s powers, duties, immunities, privileges, andliabilities.
OPEN MEETINGS - JULY 2012 21 20OPEN MEETINGS - JULY 2012What must the agenda contain when the boardanticipates convening an executive meeting?Generally, the agenda for the open meeting must indicate thatan executive meeting is anticipated. The agenda also muststate, at a minimum, the statutory authority for convening theanticipated executive meeting and should describe the subjectof the executive meeting with as much detail as possible with-out compromising the closed meeting’s purpose.For instance, if the board is to consider a proposed settlementof a lawsuit in an executive meeting, the agenda could notethat the meeting will be convened for the purpose of consultingwith the board’s attorney on questions or issues regarding theboard’s powers, duties, privileges, immunities, and liabilities,and cite section 92-5(a)(4), HRS. Unless such description wouldcompromise the purpose of closing the meeting from the public,the agenda should describe the purpose of the meeting as aproposed settlement and state the case name and civil number.Can a board convene an executive meetingwhen it is not anticipated in advance?The statute also allows the board to convene an executivemeeting when the need for excluding the general public fromthe meeting was not anticipated in advance. If, for example,during the discussion of an open meeting agenda item, theboard determines that there are legal issues that need to beaddressed by its attorney, the board is entitled to immediatelyconvene an executive meeting to discuss those matterspursuant to section 92-5(a)(4), HRS.The board, however, cannot convene an executive meeting todiscuss a matter that is not on the meeting agenda withoutfirst amending the agenda in accordance the statute’s require-ments. See the Executive Meeting Flowchart on page 32.• Investigate Criminal Misconduct. A board with the powerto investigate criminal misconduct is authorized to do so in anexecutive meeting.• Public Safety/Security. A board may hold an executivemeeting to consider sensitive matters related to public safetyor security.• Private Donations. A board may consider matters relatingto the solicitation and acceptance of private donations inexecutive meetings.• State/Federal Law or Court Order. A board may hold anexecutive meeting to consider information that a state orfederal law or a court order requires be kept confidential.Does “embarrassing” or “highly personal”information allow a board to hold anexecutive meeting?Not unless the discussion falls within one of the eight circum-stances listed in the statute for which an executive meeting isallowed.Can confidential or proprietary informationbe considered in a closed door meeting?Again, unless there is an exception that permits the board toconvene in an executive meeting, no matter how sensitive theinformation may be, a board cannot consider such informationoutside of an open meeting.Must a board give notice that it intends toconvene an executive meeting?Yes, if the executive meeting is anticipated in advance.
OPEN MEETINGS - JULY 2012 23 22OPEN MEETINGS - JULY 2012May a board vote in an executive meeting?Generally, no. In most instances, the board must vote in anopen meeting on the matters considered in an executive meet-ing. In rare instances, the Sunshine Law allows the board tovote in the executive meeting when the vote, if conducted inan open meeting, would defeat the purpose of the executivemeeting, such as by revealing the matter for which confidenti-ality may be needed.OTHER TYPES OF MEETINGSEMERGENCY MEETINGSWhere public health, safety, or welfarerequires a board to take action on a matter,can a boardconvene a meeting with lessthan six days’ notice?A board may hold an emergency meeting with less notice thanrequired by the statute or, in certain circumstances, no noticewhen there is “an imminent peril to the public health, safety,or welfare.” When the board finds that an emergency meetingis appropriate, (1) the board must state its reasons in writing,(2) two-thirds of all members to which the board is entitledmust agree that an emergency exists, and (3) the board mustfile an emergency agenda and the board’s reasons in its officeand with the Office of the Lieutenant Governor or the appro-priate county clerk’s office.How does a board convene anexecutive meeting?To convene an executive meeting, a board must vote to do so inan open meeting and must publicly announce the purpose ofthe executive meeting. Two-thirds of the board memberspresent must vote in favor of holding the executive meeting,and the members voting in favor must also make up a majorityof all board members, including members not present at themeeting or membership slots not currently filled. The min-utes of the open meeting must reflect the vote of each boardmember on the question of closing the meeting to the public.Can non-board members participatein an executive meeting?The board is entitled to invite into an executive meeting anynon-board member whose presence is either necessary orhelpful to the board in its discussion, deliberation, anddecision-making regarding the topic of the executive meeting.Once the non-board member’s presence is no longer needed,the non-board member must be excused from the executivemeeting.Because the meeting is closed to the general public, the boardshould allow the non-board members to be present during theexecutive meeting only for the portions of the meeting forwhich their presence is necessary or helpful. OIP, however,interprets the statute to allow the board’s attorney toparticipate in the entire executive meeting, even when theexecutive meeting is called for a purpose other than to consultwith the board’s attorney.
OPEN MEETINGS - JULY 2012 25 24OPEN MEETINGS - JULY 2012LIMITED MEETINGSIf a board finds it necessary to inspect alocation that is dangerous or impracticablefor public attendance, may the board hold ameeting that is not open to the public?Boards may hold a “limited meeting” that is not open to thepublic when it determines it necessary to inspect a locationthat is dangerous or that is impracticable for public attendance,and the OIP director concurs in that determination. The boardmust deliberate on the need for the limited meeting at theprior open meeting of the board, and two-thirds of the board’smembers must then agree that it is necessary to hold thelimited meeting at the specified location.If a limited meeting is held, notice must be provided, and avideotape of the meeting must be made available at the nextregular board meeting, unless the OIP director waives thevideotape requirement. No decision-making can occur duringthe limited meeting.UNANTICIPATED EVENTSWhat happens when an unanticipated eventrequires a board to take immediate action—can a board convene a meeting with less thansix days’ notice?A board may convene a special meeting with less than six cal-endar days’ notice because of an unanticipated event when aboard must take action on a matter over which it has supervi-sion, control, jurisdiction, or advisory power. The law definesan unanticipated event to mean (1) an event that the board didnot have sufficient advance knowledge of or reasonably couldnot have known about; (2) a deadline beyond the board’s con-trol established by a legislative body, a court, or an agency;and (3) the consequence of an event for which the board couldnot have reasonably taken all necessary action.The usual rule is that a state or county board may deliberateand decide whether and how to respond to the unanticipatedevent as long as (1) the board states, in writing, its reasons forfinding that an unanticipated event has occurred and that anemergency meeting is necessary; (2) the attorney general andtwo-thirds of all members to which the board is entitled concurwith the board’s finding; and (3) the board’s findings and theagenda for the emergency meeting are filed in the board’s officeand with the Office of the Lieutenant Governor or theappropriate county clerk’s office. At an emergency meeting,the board can only take those actions that need to beimmediately taken.
OPEN MEETINGS - JULY 2012 27 26OPEN MEETINGS - JULY 2012meeting can be held. The Lieutenant Governor or the appro-priate county clerk is to notify the board chair or the directorof the department within which the board is established of thelate filing, and the board must post a notice canceling the meet-ing at the meeting site.What must the agenda contain?The agenda must list all of the business to be considered bythe board at the meeting. It must be sufficiently detailed so asto provide the public with adequate notice of the matters thatthe board will consider so that the public can choose whetherto participate.For anticipated executive meetings, as noted above, the agendamust be as descriptive as possible without compromising thepurpose of closing the meeting to the public and must identifythe statutory basis that allows the board to convene anexecutive meeting regarding the particular matter.Are general descriptions such as “UnfinishedBusiness” or “Old Business” allowed?No. The practice of certain boards of listing general descrip-tions on their agendas such as “Unfinished Business” or “OldBusiness” without any further description is insufficient anddoes not satisfy the agenda requirements.Can a board amend its meeting agenda onceit has been filed?Boards may amend an agenda during a meeting to add itemsto be considered by the board by the affirmative vote of two-thirds of all board members, including members not presentat the meeting or membership slots not currently filled. Addingan item to the agenda, however, is not permitted if (1) theitem to be added is of reasonably major importance and (2)action on the item by the board will affect a significant numberof persons. Determination of whether a specific matter maybe added to an agenda must be done on a case-by-case basis.PROCEDURAL REQUIREMENTSNOTICE AND AGENDAWhat are the Sunshine Law’s requirementsfor giving notice of meetings?With the exception of emergency meetings, a board must giveat least six calendar days’ advance notice of any regular,special, or rescheduled meeting or any anticipated executivemeeting.The notice must be filed with either the Office of the LieutenantGovernor or the appropriate county clerk’s office, and postedat the meeting site, whenever feasible.In addition to the date, time, and place of the meeting, themeeting notice must include an agenda, which lists all of theitems to be considered at the forthcoming meeting. If anexecutive meeting is anticipated, the notice must also statethe purpose of the executive meeting. See the Public MeetingNotice Checklist on page 33.Does a board have to notify individual membersof the public of every meeting?The statute requires the board to maintain a list of names andaddresses of those persons who have requested notification ofmeetings and to mail a copy of the notice to those persons atthe time that the notice is filed.What happens if a board files its notice less thansix days before the date of the meeting?If a board files its notice less than six calendar days before themeeting, the meeting is cancelled as a matter of law and no
OPEN MEETINGS - JULY 2012 29 28OPEN MEETINGS - JULY 2012RECORDINGSMust a board allow a member of the public totape record or video record the meeting?The board must allow the public to tape record any portion orall of an open meeting as long as the recording does not activelyinterfere with the meeting. The current statute does notaddress newer technologies, such as videotaping or livestreaming. Given the intent of the law, however, if recordingactivities do not unduly interfere with a board’s ability to doits business, OIP suggests that a board should allow them.MINUTESIs a board required to keep minutesof its meetings?Written minutes must be kept of all meetings and must includethe date, time, and place of the meeting; the members recordedas either present or absent; the substance of all mattersproposed, discussed, or decided; a record by individual memberof votes taken; and any information that a board memberspecifically asks at the meeting to be included. Boards are notrequired to create a transcript of the meeting or toelectronically record the meeting.Are the minutes of a board’s meetingavailable to the public?Yes. Minutes of public meetings are required to be madeavailable to the public within 30 days after the meeting. If theofficial minutes are not available within 30 days after themeeting, the board must make available, upon request, the draftor yet-to-be-approved minutes of the meeting. Minutes ofexecutive meetings can be withheld only so long as publicationwould defeat the lawful purpose of the executive meeting.Once disclosure of the executive meeting minutes would notdefeat the purpose of closing the meeting to the public thoseminutes should be made available to the public. For example,minutes of an executive meeting to discuss a property’sacquisition should be disclosed after the property has beenacquired.
OPEN MEETINGS - JULY 2012 31 30OPEN MEETINGS - JULY 2012SUIT TO VOID BOARD ACTIONCan a member of the public file a lawsuit foran alleged Sunshine Law violation?Yes. When the open meetings and the notice provisions of theSunshine Law are not complied with, any person may file alawsuit to void the board’s action within 90 days of the alleg-edly improper board action. Enforcement is in circuit court ofthe circuit in which the prohibited act occurred.Under certain circumstances, the judge may grant an injunction,but the filing of a lawsuit challenging a board’s action does notstay enforcement of the action. Attorneys’ fees and costs maybe awarded to the prevailing party.What is the penalty for an intentional violationof the statute?A willful violation of the Sunshine Law is a misdemeanor and,upon conviction, may result in the person being removed fromthe board. The Attorney General and the county prosecutorhave the power to enforce any violations of the statute.Can a board appeal an OIP decisionregarding the Sunshine Law?Yes, effective January 1, 2013, a board may appeal an OIP de-cision to the courts in accordance with Section 92F-43, HRS.For more information, see OIP’s Guide to Appeals to the Of-fice of Information Practices, available on OIP’s website atwww.hawaii.gov/oip.OFFICE OF INFORMATIONPRACTICESIf I have additional questions about theSunshine Law, where can I go?For general information on the Sunshine Law or allegedviolations by state and county boards, please visit OIP’s websiteat www.hawaii.gov/oip, call OIP at (808) 586-1400, or e-mailoip@hawaii.gov. The full text of the Sunshine Law, as well asOIP’s opinions relating to various open meeting issues, areposted on the website.For neighborhood boards only:Sunshine Law questions concerning neighborhood boardsshould first be directed to the Neighborhood Commission,which has primary jurisdiction over neighborhood board is-sues. Calls or e-mail correspondence relating to a pending re-quest for OIP’s investigation or advisory opinion should be ini-tially directed to the Neighborhood Commission by calling itsoffice at (808) 768-3710, e-mailing nco@honolulu.gov, or vis-iting the Commission’s website at www1.honolulu.gov/nco.The Neighborhood Commission office will undertake the initialinvestigation, will determine if any issues are Sunshine Lawquestions appropriately directed to OIP, and may subsequentlysubmit those questions to OIP. Requests for opinions orinvestigations relating to neighborhood boards should not besent directly to OIP, as they will be returned to the senderswith directions to submit the requests through the Commission.However, requests for opinions or investigations relating tothe Commission’s own compliance with the Sunshine Law maystill be directly addressed to OIP.
OPEN MEETINGS - JULY 2012 33 32OPEN MEETINGS - JULY 2012Is Subject X on the agenda?EXECUTIVE MEETINGSEXECUTIVE MEETINGSCan the board convene an executive meeting to talk about Subject X?
Did 2/3 of total members
(present and absent) vote
to amend the agenda?
Can the agenda be amended? (If X is of reasonably major importance, and X affects a significant number of people, the board cannot amend the agenda.)Does the agenda reflect that theexecutive meeting was anticipated,the purpose of the executive meeting, and the statutory authority to convene an executive meeting ?
Was the executive
meeting unanticipated?
Did 2/3 of the members present vote in
open meeting to convene the executive
meeting, and was the reason for the
executive meeting publicly announced?
OK CANNOT
NOYES
YES
YES
YES
YES
NO
NO
NO
NO
YES
OPEN MEETINGS - JULY 2012 35 34OPEN MEETINGS - JULY 2012§92-1.5 Administration of this part. The director of the office of informationpractices shall administer this part. The director shall establish procedures forfiling and responding to complaints filed by any person concerning the failureof any board to comply with this part. An agency may not appeal a decision bythe office of information practices made under this chapter, except as providedin section 92F-43.The director of the office of information practices shall submitan 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 theconvening of each regular session.[L 1998, c 137, §2; am L 2012, c 176, §2]§92-2 Definitions. As used in this part: “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. “Chance meeting” means a social or informal assemblage of two or more members at which matters relating to official business are not discussed. “Interactive conference technology” means any form of audio or audio and visual conference technology, including teleconference, videoconference, and voice over internet protocol, that facilitates interaction between the public and board members. “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; am L 2012, c 202, §1]§92-2.5 Permitted interactions of members. (a) Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board. (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 theirboard; 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 investi- gated, if any, occurs only at a duly noticed meeting of the board held subsequent to the meeting at which theChapter 92, Hawaii Revised StatutesPUBLIC AGENCY MEETINGS AND RECORDSThe following is an unofficial copy of part I of chapter 92, Hawaii RevisedStatutes, which is current through the 2012 legislative session. Amend-ments may have been made to the Sunshine Law after publication of thismanual. To view these amendments, please visit OIP’s website atwww.hawaii.gov/oip and look under Laws/Rules/Opinions.PART I. -- MEETINGSSection92-1 Declaration of Policy and Intent92-1.5 Administration of This Part92-2 Definitions92-2.5 Permitted Interactions of Members92-3 Open Meetings92-3.1 Limited Meetings92-3.5 Meeting by Videoconference; Notice; Quorum92-4 Executive Meetings92-5 Exceptions92-6 Judicial Branch, Quasi-Judicial Boards and Investigatory Functions; Applicability92-7 Notice92-8 Emergency Meetings92-9 Minutes92-10 Legislative Branch; Applicability92-11 Voidability92-12 Enforcements92-13 Penalties§92-1 Declaration of policy and intent. In a democracy, the people are vestedwith the ultimate decision-making power. Governmental agencies exist to aid thepeople in the formation and conduct of public policy. Opening up the govern-mental processes to public scrutiny and participation is the only viable andreasonable method of protecting the public’s interest. Therefore, the legislaturedeclares that it is the policy of this State that the formation and conduct ofpublic policy - the discussions, deliberations, decisions, and action of govern-mental agencies - shall be conducted as openly as possible. To implement thispolicy 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 con-strued; and(3) The provisions providing for exceptions to the open meetingrequirements shall be strictly construed against closedmeetings. [L 1975, c 166, pt of §1]
OPEN MEETINGS - JULY 2012 37 36OPEN MEETINGS - JULY 2012 in discussions, including discussions among themselves; provided that the discussions occur during and as part of the informational meeting or presentation; and provided further that no commitment relating to a vote on the matter is made or sought. At the next duly noticed meeting of the board, the board members shall report their attendance and the matters presented and discussed that related to official board business at the informational meeting or presentation. (f) 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. (g) 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. (h) Communications, interactions, discussions, investigations, and presenta- tions described in this section are not meetings for purposes of this part. [L 1996, c 267, §2; am L 2005, c 84, §1; am L 2012, c 177, §1]§92-3 Open meetings. Every meeting of all boards shall be open to the publicand all persons shall be permitted to attend any meeting unless otherwiseprovided 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 ameeting to prevent and compromise the conduct of the meeting shall not beprohibited. The boards shall afford all interested persons an opportunity tosubmit data, views, or arguments, in writing, on any agenda item. The boardsshall also afford all interested persons an opportunity to present oral testimonyon any agenda item. The boards may provide for reasonable administration oforal testimony by rule. [L 1975, c 166, pt of § 1; am L 1985, c 278, §1]§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, or if a board determines that it is necessary to conduct an on-site inspection of a location that is related to the board’s business at which public attendance is not practicable, and the director of the office of information practices concurs, the board may hold a limited meeting at that location that shall not be open to the public; provided that at a regular meeting of the board prior to the limited meeting:(1) The board determines, after sufficient public deliberation, that it is necessary to hold the limited meeting and specifies the reasons for its determination that the location is dangerous to health or safety or that the on-site inspection is necessary and public attendance is impracticable;(2) Two-thirds of all members to which the board is entitled vote to 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 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) Board members present at a meeting that must be canceled for lack of quorum or terminated pursuant to section 92-3.5(c) may nonetheless receive testimony and presentations on items on the agenda and question the testifiers or presenters; provided that:(1) Deliberation or decisionmaking on any item, for which testimony orpresentations are received, occurs only at a duly noticed meeting ofthe board held subsequent to the meeting at which the testimony andpresentations were received;(2) The members present shall create a record of the oral testimony orpresentations in the same manner as would be required by section 92-9for testimony or presentations heard during a meeting of the board;and(3) Before its deliberation or decisionmaking at a subsequent meeting,the board shall:(A) Provide copies of the testimony and presentationsreceived at the canceled meeting to all members of the board;and(B) Receive a report by the members who were present at thecanceled or terminated meeting about the testimony andpresentations received. (e) Two or more members of a board, but less than the number of members which would constitute a quorum for the board, may attend an informa- tional meeting or presentation on matters relating to official board busi- ness, including a meeting of another entity, legislative hearing, convention, seminar, or community meeting; provided that the meeting or presentation is not specifically and exclusively organized for or directed toward members of the board. The board members in attendance may participate
OPEN MEETINGS - JULY 2012 39 38OPEN MEETINGS - JULY 2012§92-4 Executive meetings. A board may hold an executive meeting closed to thepublic upon an affirmative vote, taken at an open meeting, of two-thirds of themembers present; provided the affirmative vote constitutes a majority of themembers to which the board is entitled. A meeting closed to the public shall belimited to matters exempted by section 92-5. The reason for holding such ameeting shall be publicly announced and the vote of each member on thequestion of holding a meeting closed to the public shall be recorded, andentered into the minutes of the meeting. [L 1975, c 166, pt of §1; am L 1985,c 278, §2]§92-5 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:(1) To consider and evaluate personal information relating to individu- als 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 the officer or employee, where consideration of matters affecting privacy will be involved; provided that if 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;(7) To consider matters relating to the solicitation and acceptance of private donations; and(8) To deliberate or make a decision upon a matter that requires the consideration of information that must be kept confidential pursu- ant to a state or federal law, or a court order. (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; am L 1999, c 49, §1] adopt the determinations required by paragraph (1); and(3) Notice of the limited meeting is provided in accordance with section 92-7. (b) At all limited meetings, the board shall:(1) Videotape the meeting, unless the requirement is waived by the director of the office of information practices, 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; am L 2008, c20, §1]§92-3.5 Meeting by interactive conference technology; notice; quorum. (a) A board may hold a meeting by interactive conference technology; provided that the interactive conference technology used by the board allows interaction among all members of the board participating in the meeting and all members of the public attending the meeting, and the notice required by section 92-7 identifies all of the locations where participating board members will be physically present and indicates that members of the public may join board members at any of the identified locations. (b) Any board member participating in a meeting by interactive conference technology shall be considered present at the meeting for the purpose of determining compliance with the quorum and voting requirements of the board. (c) A meeting held by interactive conference technology shall be terminated when audio 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. If copies of visual aids required by, or brought to the meeting by board members or members of the public, are not available to all meeting participants, at all locations where audio-only interactive conference technology is being used, within fifteen minutes after audio-only communication is used, those agenda items for which visual aids are not available for all participants at all meeting locations cannot be acted upon at the meeting. (d) Notwithstanding the other provisions of this section to the contrary, a board member with a disability that limits or impairs the member's ability to physically attend the meeting may participate in a board meeting from a location not accessible to the public; provided that the member with a disability is connected to other members of the board and the public by both visual and audio means, and the member identifies where the member is located and who, if anyone, is present at that location with the member. [L 1994, c 121, §1; am L 2000, c 284, §2; am L 2006, c 152, §1; am L 2012, c 202, §2]
OPEN MEETINGS - JULY 2012 41 40OPEN MEETINGS - JULY 2012 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. 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; am L 2012, c177, §2]§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 unantici- pated 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§92-6 Judicial branch, quasi-judicial boards and investigatory functions;applicability. (a) This part shall not apply:(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. In 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;(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 251, §11; am L 1998, c 240, 86]§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. The means specified by this section shall be the only means required for giving notice under this part notwithstanding any law to the contrary. (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. (c) If the written public notice is filed in the office of the lieutenant governor or the appropriate county clerk’s office less than six calendar days before the meeting, the lieutenant governor 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
OPEN MEETINGS - JULY 2012 43 42OPEN MEETINGS - JULY 2012governed by the respective rules and procedures of the senate and the house ofrepresentatives. [L 1975, c 166, pt of §1]§92-11 Voidability. Any final action taken in violation of sections 92-3 and 92-7may be voidable upon proof of violation. A suit to void any final action shall becommenced within ninety days of the action. [L 1975, c 166, pt of §1; am L 2005,c 84, §2]§92-12 Enforcement. (a) The attorney general and the prosecuting attorney shall enforce this part. (b) The circuit courts of the State shall have jurisdiction to enforce the provi- sions of this part by injunction or other appropriate remedy. (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’s fees and costs to the prevailing party in a suit brought under this section. (d) Opinions and rulings of the office of information practices shall be admissible in an action brought under this part and shall be considered as precedent unless found to be palpably erroneous. (e) 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; am L 2012, c 176, §3]§92-13 Penalties. Any person who wilfully violates any provisions of this partshall be guilty of a misdemeanor, and upon conviction, may be summarilyremoved from the board unless otherwise provided by law. [L 1975, c 166,pt of §1](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]§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 inconsis- tent 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]§92-10 Legislative branch; applicability. Notwithstanding any provisionscontained in this chapter to the contrary, open meeting requirements, andprovisions regarding enforcement, penalties and sanctions, as they are to relateto the state legislature or to any of its members shall be such as shall be fromtime to time prescribed by the respective rules and procedures of the senate andthe house of representatives, which rules and procedures shall take precedenceover this part. Similarly, provisions relating to notice, agenda and minutes ofmeetings, and such other requirements as may be necessary, shall also be
OPEN MEETINGS - JULY 2012 45 44OPEN MEETINGS - JULY 2012(6) The head of the department shall have the power toallocate the space or spaces available to the departmentand which are to be occupied by the board or commission.(7) Any quasi-judicial functions of the board orcommission shall not be subject to the approval, review,or control of the head of the department.(8) Except as set forth hereinabove, the head of the de-partment shall not have the power to supervise or con-trol the board or commission in the exercise of its func-tions, duties, and powers.(b) Every board or commission established or placed within aprincipal department for administrative purposes or subjectto the administrative control or supervision of the head ofthe department shall be considered an arm of the State andshall enjoy the same sovereign immunity available to theState. [L Sp 1959 2d, c 1, §6; am L 1965, c 96, §140; Supp,§14A-4; HRS §26-35; am L 2004, c 16, §1]Section 26-35, Hawaii Revised Statutes:Administrative Supervision ofBoards and Commissions§26-35 Administrative supervision of boards andcommissions. (a) Whenever any board or commission isestablished or placed within or transferred to a principaldepartment for administrative purposes or subject to theadministrative control or supervision of the head of thedepartment, the following provisions shall apply except asotherwise specifically provided by this chapter:(1) The head of the department shall represent the boardor commission in communications with the governor andwith the legislature.(2) The financial requirements from state funds of theboard or commission shall be submitted through the headof the department and included in the budget for thedepartment.(3) All rules and regulations adopted by the board orcommission shall be subject to the approval of thegovernor.(4) The employment, appointment, promotion, transfer,demotion, discharge, and job descriptions of all officersand employees of or under the jurisdiction of the boardor commission shall be determined by the board orcommission subject to the approval of the head of thedepartment and to applicable personnel laws.(5) All purchases of supplies, equipment, or furnitureby the board or commission shall be subject to theapproval of the head of the department.
OPEN MEETINGS - JULY 2012 47 46OPEN MEETINGS - JULY 2012 01-06 Public’s Right to Testify on Agenda Items at Every Meeting; Continued MeetingsThe Liquor Commission held separate meetings on March 19,1998 and April 9, 1998. OIP found that the Liquor Commission,at its April 9 meeting, violated the Sunshine Law by prohibitingpublic testimony on the agenda item listed as “Decision-makingon Proposed Rules of the Liquor Commission (Continued fromMarch 19, 1998).”Even when the public has had an opportunity to testify on anagenda item at a previous meeting, section 92-3 of the SunshineLaw requires a board to afford interested members of the publican opportunity to present oral or written testimony on anyagenda item at every meeting.OIP found no conflict between sections 91-3 and 92-3, HRS.Section 91-3, which requires a public hearing as part of therulemaking process, does not prohibit an agency from acceptingpublic testimony on the date the agency announces its decisionas to proposed rule revisions. Thus, it is possible for a board tofollow both sections 91-3 and 92-3 without violating either.A board may make its decision on proposed rule revisions at alater date than the public hearing without hearing furtherpublic testimony, however, by continuing the previously no-ticed public hearing or meeting to a reasonable date and time,as provided by section 92-7(d), HRS. 02-02 Restrictions on Testimony by RuleThe City Council had a rule that precluded individuals fromtestifying orally if they failed to register by a prescribed time.The OIP found that oral testimony must be allowed even if aperson wishing to testify did not sign up. The Sunshine Lawrequires that boards shall afford all interested persons an op-portunity to present oral testimony on any agenda item andthat boards may provide for reasonable administration of oraltestimony by rule. Haw. Rev. Stat. §92-3. A rule that limitsSunshine LawOpinion LettersSummaries and Index(Nos. 90-35 through 11-01,as of June 30, 2012)The full text of OIP’s opinions are available on-line athawaii.gov/oip/opinions. 01-01 Application of Sunshine Law to Vision TeamsOIP concluded that the neighborhood Vision Teams, createdby the Mayor for the City and County of Honolulu, are “boards”covered by the Sunshine Law, and as such, must provide pub-lic notice and keep minutes of their meetings. However, giventhe peculiar nature of membership in a Vision Team, partici-pants are Vision Team “members” only when they are actuallyattending a Vision Team meeting. For this reason, outside ofthe Vision Team meetings, Vision Team members are not re-quired to restrict their interactions or otherwise act as boardmembers.The second half of this opinion was superseded in 2008 bysection 92-82, HRS, which created a permitted interaction forneighborhood boards only. The statute now authorizes aneighborhood board to (1) attend meetings of another entity atwhich matters relating to the neighborhood board’s officialboard business will be discussed and (2) participate in thediscussion of these matters relating to neighborhood boardbusiness. The conditions allowing neighborhood board membersto attend information meetings or presentations are explainedon page 16 of this Guide in the section relating to “permittedinteractions.”
OPEN MEETINGS - JULY 2012 49 48OPEN MEETINGS - JULY 2012 02-09 Actions on Bills and Resolutions Without NoticeBoards may not discuss or act upon any item, including a pro-posed bill or resolution, that is not specifically listed on themeeting agenda. The Sunshine Law requires that notices andagendas be posted six days prior to meeting dates and thatsuch agendas list, among other things, all items to be consid-ered at the meeting. Haw. Rev. Stat. §92-7(a) (Supp. 2001).OIP acknowledged that there may be unforeseen circumstancesin which a discussion at a meeting results in the decision todraft a bill or resolution to address an agenda item. OIP foundthat if a sufficient nexus exists between what was noticed andwhat resulted from the discussion, there would be no violationof the Sunshine Law. However, this nexus should be reflectedin the meeting minutes, and voting on such a bill or resolutionshould take place at a future meeting that is properly noticed. 02-11 Meetings of Councilmembers Who Have Not Yet Officially Taken Office to Discuss Selection of OfficersBoard members are not subject to the Sunshine Law prior toofficially taking office when they meet to discuss the selectionof officers. After election, the Sunshine Law only permitsdiscussion concerning officer selection between two or moremembers of a board, but less than the number of members thatwould constitute a quorum for the board. 03-06 Electronic Transmission of TestimonyE-mail use is widespread and has become an acceptable methodof communication for governmental agencies. Boards mustaccept testimony submitted by e-mail in the same manner asother forms of written testimony and reasonably ensuredistribution to board members.testimony to those who sign up by a certain time, however, isnot reasonable because it would preclude oral testimony by alllatecomers as well as those who are not familiar with Councilrules.OIP noted that the Council may, by rule, place time restric-tions on testimony, as long as the rule meets the reasonable-ness requirement under the Sunshine Law as well as require-ments of the Freedom of Speech and Equal Protection Clausesof the United States Constitution. 02-06 Minutes of Public MeetingAudiotape recordings and full transcripts made by boards ofmeetings open to the public are public records.Notes taken by an individual assigned to record the minutesof a meeting may be withheld during the editorial process. Butif minutes have not been approved by 30 days after the date ofthe meeting, then notes or “draft” minutes must be made avail-able to the public.OIP noted that there is no requirement in the Sunshine Lawthat a board approve minutes, and therefore boards do not havethe discretion to withhold minutes from the public based onwhether or not the minutes have been approved by a board.OIP therefore encouraged boards that wish to formally approveminutes to do so within 30 days of the date of the meeting, toensure that the public has access to minutes that have beenreviewed for accuracy and completeness. OIP also suggestedthat the board stamp or mark the minutes “DRAFT” when dis-closing unapproved minutes, to put the public on notice thatthe minutes may be corrected or amended at a later date.
OPEN MEETINGS - JULY 2012 51 50OPEN MEETINGS - JULY 2012 03-13 Views of Non-Board Members Included in MinutesOIP found that minutes of a Land Use Commission (“LUC”)meeting were sufficient despite a complaint by a member ofthe public that points enumerated in her presentation to theLUC were not individually listed in the minutes.The Sunshine Law requires that boards keep written minutesof all meetings which “give a true reflection of the mattersdiscussed at the meeting and the views of the participants.”Haw. Rev. Stat. §92-9 (1993). With this statutory mandate inmind, and given the Sunshine Law’s policy of protecting thepublic’s right to know, OIP found that the primary purpose forkeeping minutes is to reflect the actions taken by the decision-makers (board members) so that the public can scrutinize theiractions.Thus, OIP concluded that the Sunshine Law requires that min-utes reflect the views of non-board members who participatein meetings, but that it is sufficient for the minutes to describethose views in very general terms. 03-17 Attorneys’ Presence Allowed When Required to Accomplish the Essential Purposes of an Executive MeetingA board may consult with its attorney in an executive meetingconvened for any of the eight purposes listed in HRS section92-5(a), and not only when the meeting concerns the board’s“powers, duties, privileges, immunities, and liabilities,” so longas the consultation is necessary to achieve the authorizedpurpose of the executive meeting. A board may also summonattorneys to executive meetings, so long as the board ensuresthat it is not meeting with its attorneys in order to circumventthe spirit or requirements of the Sunshine Law by having ameeting to which only a portion of the public is invited. 03-07 Voting in Executive MeetingsBoards subject to the Sunshine Law may vote in executivemeetings. Votes taken in executive meetings need not bedisclosed to the public because the Sunshine Law allowsminutes of executive meetings to be withheld so long as theirpublication would defeat the lawful purpose of the executivemeeting. Once disclosure of votes taken in executive meetingswould not defeat the lawful purpose of holding the executivemeeting, the votes should be disclosed. 03-08 UIPA, Not Sunshine Law, Governs Disclosure of Records Relating to Agenda ItemsThe Sunshine Law does not require that records relating toitems on an agenda be available to the public at the time thenotice and the agenda are filed. The disclosure and availabil-ity of government records are governed by the Uniform Infor-mation Practices Act (the “UIPA”). See Part II, chapter 92F,HRS. 03-12 Attendance at Executive Meetings by Parties Other Than Council or Board MembersWhen a board requires the assistance of non-board membersto accomplish the purpose of convening an executive meeting,the Sunshine Law authorizes the board to summon the non-board members to participate in the closed board meeting.Non-board members should remain at the meeting only so longas their presence is essential to the agenda item being consid-ered in the executive meeting.More than one of a board’s attorneys may attend an executivemeeting to advise the board concerning the board’s powers,duties, privileges, immunities, and liabilities.
OPEN MEETINGS - JULY 2012 53 52OPEN MEETINGS - JULY 2012committee members on documents related to the decisionmaking function of the Committee.The general rule is that discussion among board members out-side of a duly noticed meeting, concerning matters over whichthe board has supervision, control, jurisdiction, or advisorypower and that are before or are reasonably expected to comebefore the board (“Official Business”), violates the SunshineLaw. However, there is no violation if the discussion is autho-rized as a permitted interaction under the Sunshine Law, suchas where only two members meet to gather information. SeeHaw. Rev. Stat. §92-2.5.In this case, OIP found that the committee member’s actionsdid not constitute a permitted interaction because (1) thecommittee member did not solely gather information but soughta commitment to vote and (2) the serial communicationsviolated, if not the rule, the spirit of the Sunshine Law.OIP further found that a vote taken via e-mail on OfficialBusiness violated the Sunshine Law. Section 92-5(b), HRS,states that electronic communications cannot be used tocircumvent the spirit or requirements of the Sunshine law orto make a decision upon Official Business. OIP noted, however,that the use of e-mail for routine, administrative matters, suchas scheduling purposes, is permissible under the Sunshine Law. 04-04 Voting on Board Business by Poll Not AllowedThe Hawaii Civil Rights Commission (the “HCRC”) asked OIPwhether it could poll the Commissioners relating to theagency’s legislative testimony. OIP advised the HCRC that theSunshine Law requires that all decisionmaking take place inmeetings open to the public, unless the Sunshine Lawauthorizes an executive meeting. Where the purpose of callsor e-mails to board members is to receive their position, i.e.,their vote, on proposed legislation involving the HCRC’s 03-20 Oversight Committee for the First Circuit Family CourtA member of the public asked OIP for an opinion on theJudiciary’s denial of his request for records relating to theOversight Committee for the First Circuit Family Court(“Oversight Committee”). The Oversight Committee meetingswere closed.The Judiciary is not required to hold open meetings. Haw. Rev.Stat. §92-6. Thus, minutes of the Oversight Committee meetingswere not required to be made available as minutes of a meetingopen to the public. See Haw. Rev. Stat. §92F-12(a)(7). 03-22 Attorney’s Presence Required for Board to Convene Executive Meeting Under 92-5(a)(4)The Department of Land and Natural Resources State HistoricPreservation Division Oahu Island Burial Council convenedan executive meeting on March 12, 2003 under section 92-5(a)(4), HRS, which allows a board subject to the Sunshine Lawto have executive meetings to consult with the board’s attorneyon the board’s powers, duties, privileges, immunities, andliabilities. The meeting was improper because no boardattorney was present. 04-01 Discussion of Official Business Outside of a Duly Noticed Meeting; E-Mail VotingA state legislator asked OIP to investigate the LandfillSelection Committee’s (the “Committee”) compliance with theSunshine Law. The Committee is an advisory board establishedby the City and County of Honolulu (the “City”) to assist in theselection of Oahu’s future landfills. According to the City, theCommittee is subject to the Sunshine Law. The legislatoralleged that, outside of a properly noticed meeting, a committeemember individually solicited and obtained signatures of other
OPEN MEETINGS - JULY 2012 55 54OPEN MEETINGS - JULY 2012 04-10 Barred Employee’s Right to TestifyEven though a county charter bars county employees fromappearing before boards, if a county employee does appearbefore a board seeking to testify, the board must hear his orher testimony. OIP noted that the charter provisionsthemselves do not violate the Sunshine Law. 04-14 Adjudicatory FunctionsA staff briefing of the Board of Land and Natural Resourcesregarding pending contested cases is part of the Board’s“adjudicatory functions,” which are not subject to the SunshineLaw.The Board could not meet in executive session to receivesensitive information about an alleged violator’s personal prob-lems offered as a defense or mitigating factor for the allegedviolation because OIP found that the privacy provision of theState Constitution did not require the Board to keep suchinformation confidential. 04-19 Sunshine Law ComplianceOIP was asked whether the University of Hawaii InstitutionalAnimal Care & Use Committee (the “UH IACUC”) mustconduct its meetings in compliance with the provisions of theSunshine Law. OIP opined that the Sunshine Law does notapply to an agency, board, commission, authority, or committeecreated by or pursuant to federal law. OIP found that the UHIACUC was created pursuant to federal law and therefore isnot subject to the provisions of the Sunshine Law.powers, the voting is in effect a decision concerning officialCommission business.Therefore, OIP opined that the HCRC staff cannot poll indi-vidual Commissioners outside of a properly noticed meetingfor the purpose of determining and/or approving the HCRC’slegislative testimony. That does not mean that staff cannotgather information from Commissioners to assist staff in draft-ing testimony, so long as staff ensures that there is no facilita-tion of deliberation through staff’s discussion with multipleCommissioners. OIP also suggested alternatives to assist theHCRC in consulting with Commissioners without violating theSunshine Law. 04-09 Anonymous Testimony; Liability for Disclosure of Testimony Containing Potentially Defamatory StatementsOIP was asked for an opinion on receipt of anonymoustestimony and disclosure of testimony containing potentiallydefamatory statements provided to boards.OIP opined that boards must accept anonymous testimony.Because the Sunshine Law requires that “all interestedpersons” be given the opportunity to provide written and oraltestimony on agenda items and the policy underlying theSunshine Law requires liberal construction in favor ofopenness, it is not appropriate to condition submission oftestimony on whether a potential testifier identifies himselfor herself.OIP also opined that an agency or agency employee is immunefrom liability under section 92F-16 of the UIPA for disclosingtestimony that may contain defamatory statements because theUIPA requires agencies to disclose public testimony uponrequest. OIP noted, however, that section 92F-16, HRS, hasnever been tested in court.
OPEN MEETINGS - JULY 2012 57 56OPEN MEETINGS - JULY 2012 05-07 Board RequirementsBoards (except the Land Use Commission) are not subject tothe Sunshine Law when exercising their adjudicatory functions.Boards must follow the Sunshine Law at public hearings onproposed agency rules in addition to the requirements undersection 91-3, HRS.If a board fails to give proper notice of an agenda item requiredunder a statute or ordinance other than the Sunshine Law,the board can avoid violating that other law by cancelling itsmeeting or cancelling the individual agenda item withoutdiscussion. 05-09 Charter School BoardsCharter school boards are “boards” as defined by the SunshineLaw and, therefore, must comply with the Sunshine Law’srequirements. (Subsequent to this opinion, section 302B-9, HRS,was enacted, which exempts charter school boards from theSunshine Law.) 05-11 Closed Buildings and Public MeetingsA member of the public asked (1) whether the building in whichthe Kauai County Council was meeting in executive sessioncould be closed to the public and (2) whether the Council couldcommence a meeting more than seven hours after the timestated on the notice for the meeting. OIP concluded that closingthe building during the executive meeting did not violate theSunshine Law. OIP found that any deviation from the timestated in a notice must be reasonable or the notice will berendered insufficient. OIP found a seven-hour delay to beunreasonable. 05-02 Public TestimonyA board may permit the public to speak at its meetings onmatters that are not on the agenda, but is not required to doso. If the board elects to hear such public statements and thestatements concern “board business,” the board must be care-ful not to respond to or discuss those matters because they arenot on the agenda. 05-04 Executive SessionThe Kauai County Council asked whether it could meet inexecutive session to interview the Mayor’s appointees to countyboards and commissions. OIP concluded that the Council couldnot do so because the interviews did not fall within any of theexemptions to the Sunshine Law’s open meeting requirements.OIP found that neither the county charter provision thatappeared to allow closed meetings for this purpose nor theUIPA are “state laws” requiring confidentiality and, therefore,the exemption allowing an executive meeting to considerinformation that must be kept confidential pursuant to stateor federal law or court order did not apply. OIP further foundthat an uncompensated board or commission member is not a“hire” under the exemption allowing for closed meetings toconsider the hire of an officer or employee. 05-01 Task ForceBecause the Downtown Homeless Task Force did not meet twoof the five elements of the Sunshine Law’s definition of a“board,” OIP concluded that the Task Force is not a board sub-ject to the Sunshine Law. OIP found that the Task Force doesnot "take official actions" because it does not create recom-mendations that are to be acted upon by the City. OIP alsofound that the Task Force was not “required to conduct meet-ings” because the group does not need a quorum to reach adecision.
OPEN MEETINGS - JULY 2012 59 58OPEN MEETINGS - JULY 2012 06-06 Notice FilingsA board may file its meeting notice up to midnight on the sixthcalendar day prior to the meeting for which the notice is beingfiled. A board may file its notice after normal business hourson the sixth day prior to the meeting if the office receiving thefiling, i.e., the Lieutenant Governor’s office for state boards orthe County Clerk’s office for county boards, will accept filingsafter their respective offices’ normal business hours. 07-02 Agenda LanguageOIP found that the use of standard language in an agenda re-garding possible reconsideration of actions on agenda itemsdid not provide sufficient notice to allow a county council atthe noticed meeting to discuss and deliberate on the merits ofa motion to reconsider a bill passed at a previous meeting. 07-03 Oral TestimonyThe City Council is not required to accept oral testimony onan agenda item that is cancelled before any consideration ofthe item. However, once the Council begins consideration ofthe item, it must accept oral testimony even if it then decidesto defer the item to a subsequent meeting or indefinitely. 06-05 Agenda Item AmendmentsAn agenda item may not be amended to add an item if it is ofreasonably major importance and action on the item willaffect a significant number of persons. OIP found that theHawaii County Council could not amend its agenda to add anitem relating to the settlement of a lawsuit because thatlawsuit could potentially have had widespread legal effect andcreated substantial county liability, and where considerationof matters related to the lawsuit could realistically affect thesettlement of the litigation. 06-01 Public’s Right to TestifyA board may choose to take public testimony on all agendaitems at the beginning of a meeting, but must allow a person totestify on as many of the agenda items as the person wishes.The public’s right to present oral testimony does not give aperson testifying the right to question board members duringthat testimony. 06-02 Investigative Task ForceThe Board of Directors of the Natural Energy Laboratory ofHawaii Authority (“NELHA”) formed a Finance InvestigativeCommittee, as a “permitted interaction,” to investigate thecharges to be used in negotiating the land rental rates withNELHA’s tenants. After the Committee reported back to theBoard on the matter it was originally authorized to investigate,it ceased to be an investigative task force. At that point, theCommittee’s meetings were required to be open to the publicunless another permitted interaction or exception applied. 05-15 Serial InteractionsA council member may not use the two-member “permittedinteraction”—which allows two members to discuss “boardbusiness” with each other outside of an open meeting as longas no commitment to vote is made or sought—to discuss councilbusiness with another council member, and then use the samepermitted interaction to discuss the same council business withother council members through a series of private one-on-onediscussions. No permitted interaction may be used tocircumvent the spirit or requirements of the Sunshine Law.
OPEN MEETINGS - JULY 2012 61 60OPEN MEETINGS - JULY 2012 08-02 Boards Created by ResolutionAlthough a task panel created by a county or state resolutiongenerally does not fall within the definition of “board” underthe Sunshine Law, it would contravene the Sunshine Law’spolicy and intent to allow a subordinate group created by aCouncil to meet in private to act on Council business that shouldbe determined at an open Council meeting. Thus, a panel orother body created by a Sunshine Law board is subject to theSunshine Law where circumstances show that, by delegationof authority from that board, the panel is in fact acting in placeof that board on a matter that is the official business of theboard. These circumstances must be reviewed on a case-by-case basis. 07-06 Agenda ItemsA board may take action on an agenda item without indicatingon its agenda that a decision would be made or the nature ofthe decision. The Maui County Salary Commission’s agendawas found to provide sufficient notice of the subject matter ofan agenda item to allow its approval of an issue arising directlyunder the item listed. 07-10 Agenda Item ScopeA board can require that testimony be related to an agendaitem, but it must interpret the item broadly for that purpose.The board may not restrict the public from testifying on issueswithin the general subject matter of the agenda item. The scopeof an agenda item is determined by the language used todescribe the item on the agenda, not by what the board in-tended the item to cover. 08-01 Council Member Participation at Committee Meetings Not Assigned to CommitteeWhen a board forms a committee, the committee and itsmembers must independently comply with the Sunshine Law’sopen meeting requirements apart from the parent board. Whennon-members attend and participate in a committee meeting,the combined attendance of committee members and non-members must be viewed as a discussion by them as membersof the parent board—e.g., the Council—of parent boardbusiness, which may not occur outside of a properly noticedCouncil meeting. Therefore, non-members should not attend aCouncil committee meeting because the resulting discussionof Council business among the various Council members,consisting of both committee members and non-members,constitutes a meeting of the Council that does not conform tothe requirements of the Sunshine Law.
OPEN MEETINGS - JULY 2012 63 62OPEN MEETINGS - JULY 2012Opinion Letter IndexContested Cases: See ADJUDICATORY FUNCTIONSDDEFINITIONS: Board..................................................01-01, 03-01, 04-19, 05-01Appointments to...........................................................01-01Charter Schools..........................................................03-01Connection to Government........................................01-01Created by Resolution.................................................08-02Created by State Law..................................................04-19Jurisdiction..................................................................01-01Receipt of Government Funds...................................01-01Delegated Powers of a Board...................................08-02 Chance Meeting....................................................................01-01 Consider.................................................................................07-06 Official Business: See “BOARD BUSINESS” Privacy....................................................................................06-07 Quorum...................................................................................01-01DEPARTMENTS AND AGENCIES: COUNTY AGENCIESCity and County of Honolulu City Council............................02-02, 02-11, 08-02 Landfill Selection Committee....................04-01 Mayor’s Office..............................................05-01 Neighborhood Boards.................................01-01 Police Commission......................................03-07County of Hawaii County Council.......................05-02, 06-05, 07-02 County Clerk..................................................06-06County of Kauai County Council............................................02-11 Department of PlanningPlanning Commission...........................03-08OIP OPINION LETTER INDEX Op. Ltr. No.AADJUDICATORY FUNCTIONS: Sunshine Law Exception for...................03-07, 04-14, 05-07ADMINISTRATIVE RULES:Open Meetings.................................................................02-02B“BOARD BUSINESS”:Generally...................................................01-01, 04-01, 04-04 Administrative Matters..................................................04-01BOARD MEMBERS: Chance Meetings of..........................................................01-01 Constitutional Rights of...................................................01-01 Quorum of: See QUORUM Who are...................................................................01-01, 02-11CCIRCUMVENTION OF STATUTE: By Delegation of Powers ..........................................08-02COMMITTEES.............................................................03-07, 03-08 Attendance by Non-members .........................................08-01COMMUNICATION: By Email ............................................................................04-01CONSTITUTIONALITY OF RESTRICTION ON SPEECH: Board Members................................................................01-01 Government Employees..................................................04-10 Public..........................................................02-02, 04-10, 05-02
OPEN MEETINGS - JULY 2012 65 64OPEN MEETINGS - JULY 2012Opinion Letter IndexDEPARTMENTS AND AGENCIES (Continued): COUNTY AGENCIES (Continued):County of Maui County Council......................02-09, 02-11, 08-01 Department of Planning Planning Commission......................07-10 Salary Commission......................................07-06 STATE EXECUTIVE AGENCIESAgriculture, Department ofBoard of Agriculture......................................03-06Budget & Finance, Department ofEmployees’ Retirement System ..................92-27Business, Economic Development & Tourism, Department ofHawaii Community Development Authority..................................................06-01Land Use Commission...................................03-13Education, Department of (DOE)Board of Education........................................06-07Charter School Boards.......................03-01, 05-09Land & Natural Resources, Department ofNatural Energy Laboratory of Hawaii......................................................06-02State Historic Preservation Division....................................................03-22 JUDICIARY Oversight Committee for the First Circuit Family Court.....................03-20LLEGISLATIVE HISTORY- CHAPTER 92,HAWAII REVISED STATUTESExecutive Meeting..........................................03-07, 06-05Permitted Interaction................................................02-11MMEETINGS: Actions: See DELIBERATION AND DECISION MAKING Agendas: See NOTICE AND AGENDA Audiotape Recordings of........................................02-06, 03-22 Cancellation of.....................................................................05-07 Committee Meetings, Council Member Participation.................................................................08-01 Delay in Commencement of..............................................05-11 Deliberation and Decision MakingGenerally........................01-01, 01-06, 02-09, 04-04, 05-04Items Cancelled from Agenda..................................05-07Items Not on Agenda.................................................05-02 Discussions Outside a Meeting, Generally (see also Permitted Interactions).............04-01, 05-15By E-mail.........................................................04-01 Executive MeetingsAmendment of Agenda to Add Executive Session Item............................................................06-05Announcement of Purpose.............................03-22, 04-14Attendance at..............................................................03-12Attorney Consultation...................................03-12, 03-17, 03-22, 06-05, 06-07Cancellation if Statutory Purpose Does Not Apply.......................................................03-22Closing Building During...........................................05-11Confidentiality Required by State or Federal Law............................................04-14, 05-04Disclosure of Vote......................................................06-07Generic Agenda Entries............................................06-05Officer or Employee, Hire, Evaluation, Dismissal.................................05-04, 06-07Provisions Allowing Closed Meeting Strictly Construed..................................................06-05Purpose Specified by Statute Only.................................................03-22, 04-14Opinion Letter Index
OPEN MEETINGS - JULY 2012 67 66OPEN MEETINGS - JULY 2012Opinion Letter IndexPPERMITTED INTERACTIONS: Generally.....................................................01-01, 02-11, 04-01, 05-15, 06-02 Investigative Task Force...................................................06-02 Officer Selection.................................................................02-11 Serial Communications..........................................04-01, 05-15QQUORUM.....................................................................01-01, 02-11RROBERT'S RULES OF ORDER ...............................03-13, 07-02SSTATUTORY CONSTRUCTION: Absurd Result....................................................................07-06 Conflict Between Requirements of SunshineLaw and another Statute....................01-06, 05-04, 05-09 "Consider"..........................................................................07-06 Consistent with Purpose, Other Provisions........06-05, 07-06 Exceptions Narrowly Construed...............03-12, 06-02, 06-05 Executive Meeting.............................................................06-05 Legislative History: See LEGISLATIVE HISTORY Open Meetings Provisions Liberally Construed............01-01 Other Laws, Interaction with....................01-06, 05-07, 06-07Opinion Letter IndexMEETINGS (Continued): Shielding Identity of Participants.............................05-11 Voting in..........................................................................03-07 Location of...........................................................................05-11 Multiple Boards, of............................................................01-01 Minutes of: See MINUTES Notice: See NOTICE AND AGENDA Transcripts of..........................................................02-06, 03-22MINUTES: Generally..............92-13, 92-27, 02-06, 03-07, 03-12, 03-13, 03-15, 03-20, 03-22, 04-01, 06-07 Approval of .............................................................02-06, 03-13 Executive Meeting, of............................................03-22, 06-07 Reflections of Non-member Views................................. 03-13 Required Contents............................................................03-13 Transcripts..............................................................02-06, 03-22NNOTICE AND AGENDA: Administrative Matters........................................05-02, 07-02 Amendments to Agenda..................01-06, 06-05, 07-02, 07-10 Bills and Resolutions........................................................02-09 Cancellation of Agenda Items..............................03-22, 05-07Testimony not Required............................................07-03 Documents Referenced in Agenda..................................03-08 Generic Entries......................................................06-05, 07-02 Matters not on Agenda, Discussion of............................05-02 Notice of Action on Agenda Item....................................07-06 Notice of Executive Meeting................................03-22, 06-05 Sufficiency of Agenda.................... 01-06, 02-09, 03-22, 05-11, 06-05, 07-02, 07-06 Time to File........................................................................06-06 When Required..........................................01-01, 01-06, 02-09, 03-08, 06-05, 07-02
OPEN MEETINGS - JULY 2012 69 68OPEN MEETINGS - JULY 2012NotesOpinion Letter IndexTTESTIMONY: Anonymous Testimony......................................................04-09 Cancelled or Postponed Agenda Items...........................07-03 Copies..................................................................................04-09 Designation As....................................................................03-06 Disclosure Under the UIPA..............................................04-09 E-mail & Facsimile.............................................................03-06 Form Of................................................................................03-06 Generally..................................................................01-06, 03-22 Identity of Testifier............................................................04-09 Limitations On.............................................02-02, 06-01, 07-10 Previous Opportunity, Effect of.......................................01-06 Right to Testify................................03-22, 04-09, 04-10, 05-07,06-01, 07-10Government Employee..............................................04-10Items Not on Agenda.................................................05-02Question to or from Board.............................06-01, 07-10 Sign Up................................................................................02-02 Time Limits..............................................................02-02, 06-01 Timing of..............................................................................06-01VVIOLATION, LEGAL EFFECT OF .........................01-06, 07-02
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