HomeMy WebLinkAbout2003-08-14 Further Clarification of OIP Opinion Re Executive Meetings NtY•OS h, Lincoln S.T. Ashida
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Harry Kim
`.•' Corporation Counsel
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Mayor
Gerald Takase
•+ -N�o�;:�; Assistant Corporation
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COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622
August 14, 2003
MEMORANDUM 2003-4
TO: HAWAII COUNTY COUNCIL
ALL COUNTY BOARDS AND COMMISSIONS
FROM: LINCOLN S. T. ASHIDA
Corporation Counsel
RE: Further Clarification of Opinion from Office of Information
Practices regarding Executive Meetings
A board member recently raised a question regarding our advisory dated July 17, 2003, based
upon an opinion received from the Office of Information Practices (hereinafter"OIP") concerning
executive meetings. A copy of our earlier memorandum is attached for your reference.
Specifically, the board member asked whether it was permissible for an attorney from our office
to remain for the entire duration of the executive meeting.
In our July 17th memorandum, the Corporation Counsel stated:
Thus, the OIP has stated that our attorneys, as a general practice, should
remain in the executive meeting so long as their presence (i.e., legal
assistance) is required, and no longer. Therefore, the continued presence
of our attorneys for the duration of an executive meeting would only occur
in situations where their counsel is required throughout. (Emphasis
supplied).
Thus, assuming the board or commission requests at the beginning of the executive meeting
that our attorney remain, for the purpose of addressing legal issues or questions which may
arise during the course of the executive meeting, the continued presence of our attorney for the
duration of the executive meeting is permitted.
We contacted the OIP to verify whether this was an acceptable practice. We stressed the fact
that the majority of board and commission members are lay people with limited practical
knowledge of our State Sunshine Law. Historically, our attorneys remained in executive
meetings to ensure compliance with the law, and to guard against inadvertent error which may
lead to invalidation of board action, or even litigation.
The OIP has agreed with our earlier stated recommendation that so long as the board requests
the presence of our attorneys during the executive meeting, notwithstanding the fact legal
questions may only be anticipated, the continued presence of our attorneys throughout the
duration of the meeting is permissible.
We also stress the importance of adhering to the requirements of our Hawaii County Charter,
with respect to open meetings. Article XIII, Section 13-20(b), of the Charter provides in
pertinent part as follows:
All meetings of the council, boards and commissions shall be held
in the council meeting room or other public places and no such bodies
shall take any official action except at a meeting open to the public.
Where personal matters affecting the privacy of an individual are to
be considered, the council, board or commission may, at the request
of the individual involved, consider such matters in closed session;
however, any official action resulting therefrom shall be acted upon
in an open meeting. Boards and commissions that are empowered
to give examinations to determine the capabilities of individuals shall
be excepted from the provisions of this section when technical
examinations and questionnaires are being drafted by such bodies.
The earlier OIP opinion was written in response to a request from County Clerk Al Konishi and I
regarding who may be present during executive meetings. As a practical matter, the Hawai'i
County Council rarely goes into executive session, with the exception of discussing ongoing
litigation cases with our attorneys.
With respect to such attorney-client discussions, a closed meeting is permissible, based upon a
1977 order by former Third Circuit Court Administrative Judge Ernest Kubota, wherein the Court
opined that the above-cited Charter provision allows discussions with counsel regarding
pending or imminent litigation, or pending contested cases in administrative proceedings. See
County Council v. David Shapiro, Civil No. 4684 (Third Circuit Court, Second Division, July 13,
1977).
However, other boards and commissions may desire to hold executive meetings to discuss
personnel matters, or other items where a significant privacy interest exists. In these situations,
although the State Sunshine Law may permit such private meetings, our County Charter may
not, absent the consent of the person whose privacy interest in impacted. In these situations,
the specific consent of the person involved should be sought.
Thank you for allowing our office to clarify these important issues with our County clients.
If you have any questions regarding this matter, I invite you to contact me at 961-8304,
extension 26, or via e-mail at lashida @co.hawaii.hi.us.
Thank you.
Encl.
cc: Honorable Harry Kim, Mayor(w/encl.)
All Department Heads (w/encl.)
S: Departments/Corp Counsel/Memo 2003-4 7-31-03/LSAmr
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