HomeMy WebLinkAboutNovember 3, 2023Quick Review: Who Board Members Can Talk To and When (Part 3)
(Revised December 2022)
OIP often is asked whether board members can talk to one another in various
situations when not in a meeting. To help board members understand what they can
talk about when they are not in a meeting, OIP put together a three-part Quick Review.
The entire series can be found online on OIP's Sunshine Law training webpage at
oip.hawaii.gov.
Boards subject to the Sunshine Law, Part I of Chapter 92, Hawaii Revised
Statutes (HRS), are generally required to conduct all business in open meetings that
have been properly noticed to allow for public participation. This Quick Review
discusses an exception to the open meeting requirement for "permitted interaction
groups" or "PIGs," as set forth in section 92-2.5(b), HRS. While other types of permitted
interactions were previously discussed in Part 2 of this Quick Review series, this article
explains how members of a board may form a PIG to investigate or to negotiate a
matter.
PIGs Established to Investigate
Two or more members of a board, but less than the number of members which
would constitute a quorum, may be assigned to investigate a matter relating to the
official business of their board.
In order for a board to take action on a matter investigated by a PIG, three
separate board meetings must occur in the order described below. At the FIRST
meeting of the full board, the investigative PIG is formed and the scope of the
investigation and the scope of each member's authority are defined. No new members
or issues can be added to the PIG after the first board meeting. The PIG may then
conduct its investigation outside of open meetings, which may take months to complete.
At a SECOND meeting of the full board, the findings and recommendations of the
PIG are presented to the board, but the board cannot discuss or act on the report at
this meeting.
A PIG may present its findings to the full board in an executive session if the
reason for entering into the executive meeting is one of those set forth in
section 92-5(a), HRS, or other law. For example, if a PIG was created to
investigate whether to take certain disciplinary action against an employee, it
may present its findings to the full board in accordance with section
92-5(a)(2), HRS, which allows boards to enter executive meetings to consider
the discipline of an employee. In such a situation, OIP generally recommends
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that the PIG also present a "sanitized" report during the public session that
omits the confidential information but informs the public of the general nature
of the PIG's findings and recommendations, so the public is at least generally
informed of the PIG's work and has something upon which to base testimony
at the subsequent meeting where the board will discuss and perhaps act on
the report.
After the PIG makes its report to the board at the second meeting, the PIG
is automatically dissolved and should not continue working. The Sunshine Law
does not allow a PIG to make more than one report or to continue working on its
assignment after its report, so a PIG should not be providing "updates" on its work or
more than one report. See OIP Op. Ltr. No. F23-01 on OIP's Opinions page for an in-
depth discussion on investigative PIGs.
The board cannot discuss, deliberate, or make any decisions regarding the
PIG's report until a THIRD meeting held separately and after the meeting at which the
findings and recommendations of the investigation were presented by the PIG.
Waiting until a subsequent board meeting to discuss and act on the PIG's report
gives the public the opportunity to present informed testimony at the meeting where the
board will discuss and act on the report.
Some Practical Considerations for Investigative PIGs
• A PIG is fundamentally a permitted interaction with detailed reporting
requirements, not a special type of committee.
• Because they are a permitted interaction rather than a type of committee,
PIGs are not subject to the Sunshine Law's requirements for giving notice,
holding open meetings, or keeping minutes.
• PIG members may communicate by interactive technology (Skype,
teleconference, etc.), and by email, telephone, etc., on matters within the
scope of the PIG's authority without violating the Sunshine Law.
• Although a PIG is not required to hold public meetings, it can choose to do so
if it wishes.
• PIGs may solicit input from the public as part of an investigation without the
need of filing a meeting agenda in accordance with the Sunshine Law.
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• A PIG may include among its members people who are not members of the
board that created the PIG. A PIG may also consult with others (i.e., staff,
members of the public, individuals with expertise in a field, stakeholders, etc.)
in furtherance of its investigation, but should NOT consult with other members
of its parent board.
• Members of a board who are not part of the PIG may NOT attend PIG
meetings or be included in PIG communications.
• Before the PIG reports to the board, PIG members should not discuss the
status of their investigation with other board members who are not part of the
PIG.
• A standing committee of a board may create a PIG, and such PIGs must
follow all the requirements of section 92-2.5(b), HRS, including reporting back
to the committee that created them.
• Sometimes, it may be better for a board to establish a temporary committee
instead of a PIG, or to delegate authority to one member to perform a task
and report back to the board. See OIP Op. Ltr. No. F23-01 at 15-16 for more
information.
• A PIG may continue its work after the loss of a PIG member. For example, if
a PIG's member's term on the board ends, that member also ceases to be a
PIG member, but the PIG can continue working with the remaining original
members. The board should not substitute another board member into that
vacant PIG position. The PIG's membership was previously established at
the initial meeting that created the PIG and new members cannot be added.
The PIG can continue without the now -departed member, but if a board wants
to change the PIG's membership, it should first allow the current PIG to report
back and automatically dissolve. After hearing the investigative PIG's report
and waiting until a subsequent board meeting to discuss and act on the
report, the board can then create a new PIG to carry on the now -dissolved
PIG's work.
• Similarly, once a PIG is formed, the board may not add new assigned tasks to
an existing PIG.
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PIGs Established to Negotiate
Another less common type of PIG can be formed when two or more members of
a board, but less than a quorum, are assigned to present, discuss, or negotiate any
position adopted by the board at a meeting. The assignment of members to a PIG for
the purpose of negotiation, and the scope of each member's authority, must be defined
at a board meeting prior to the presentation, discussion, or negotiation. The three -
meeting requirement for investigative PIGs does not apply to PIGs established to
negotiate.
As a final note, boards should keep in mind that they may be subject to other
laws or rules in addition to the Sunshine Law, which could affect members' ability to
discuss pending matters. This may be particularly relevant for boards that exercise
adjudicatory functions (which are not subject to the Sunshine Law), as they must
generally avoid ex parte communications. Similarly, some boards are subject to
confidentiality provisions outside the Sunshine Law, and if a board is involved in a
procurement, it must follow procurement laws. Boards should consult with their own
attorneys on the application of such laws and rules.
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