Re: Hawaii's Sunshine Law

The statement is true. Because the Sunshine Law now requires boards to send meeting notices by postal or electronic mail to persons who requested such notification, the board may be required to cancel its meeting if the notice is not sent at least six days before the meeting, including a situation where an email was undeliverable due to the entry of the wrong address by the board. While postal mail may sometimes be delivered despite errors in the address, email addresses must be precisely entered to be delivered. Therefore, it is incumbent upon the board to ensure that it is emailing meeting notices to the email address provided by the requester. Otherwise, the requester may complain to OIP of a Sunshine Law violation, which may require cancellation of the meeting. If the meeting has already been held and the requester files a lawsuit within 90 days, then the court may void any final action taken by the board at the meeting.

 

The first option is the answer, because it is not a proper reason for a board to go into executive session. Just because a matter may be embarrassing to a person or entity, it is not a reason for holding a meeting closed to the public. Executive meetings can only for held for the eight purposes listed in Sunshine Law at section 92-5(a), HRS.

The statement is true. Section 92-7, HRS, only requires an agenda to list an executive meeting that is “anticipated in advance,” so a board can still go into an unanticipated executive session even though the agenda didn’t indicate that the item would be discussed in executive session. This question specified that the item being discussed was already on the board’s agenda, although listed for the public session and not for executive session. If the board wanted to go into executive session to discuss an item that wasn’t on the agenda in the first place, then the question would be whether the board could add the item to its agenda. The board can only add an agenda item if it is not of reasonably major importance or affecting a significant number of persons, and two-thirds of all members to which the board is entitled vote in favor of adding it.

The statement is false. Although the Sunshine Law does not require executive session minutes to be posted online, those minutes may be eventually disclosed upon request under Hawaii’s open records law when there no longer is a purpose for keeping them confidential.

The statement is true. Section 92-9, HRS, which sets out what must be included in minutes, requires boards to keep written minutes of “all meetings,” not just public meetings.

The statement is true. Section 92-3, HRS, allows the board to provide for reasonable administration of testimony by rule.

The statement is true. The Sunshine Law applies to board members’ discussions of board business with other board members, not to board members’ discussions with people who are not on the board, including members of the general public, lobbyists, and staff. Board members, however, must not attempt to circumvent the spirit of the Sunshine Law by essentially having discussions with one another through third parties.

The statement is false. The Sunshine Law does not require boards to approve minutes, and it does require boards to post their minutes online within 40 days after a meeting without exception.Therefore, if the final, board-approved minutes are not ready, then the board must post its “draft” minutes online within 40 days after the meeting. The board is free to replace the “draft” minutes with its final minutes online when the final minutes are ready.

The statement is false. A board cannot go into executive session to discuss a matter that is not on the meeting agenda without first amending the agenda in accordance with the Sunshine Law’s requirements. The requirements for going into executive session are different from those to amend the agenda. To go into executive session, two-thirds of the board members present must vote in an open meeting in favor of holding the executive session, and the members voting in favor must also constitute a majority of all board members, including members not present or membership slots not currently filled. In contrast, at least two-thirds of all board members (present, absent, and unfilled slots) must vote in favor of amending the agenda, and no item can be added if it is of reasonably major importance and the board’s action will affect a significant number of persons.

The first option is the correct answer. Because this workshop will involve presentations and discussions of board business, and none of the permitted interactions in section 92-2.5, HRS, would allow a full board to discuss board business outside a meeting in this circumstance, the board members will have to do it in a Sunshine Law meeting. The board cannot hold it as a limited meeting because this is not a situation where the board needs to meet at a dangerous location or a location where public attendance is impracticable.

The second item is the correct answer because it is not true. For the public’s convenience, the board may, but is not required to, establish remote “courtesy” sites in addition to the official meeting location(s) specified on the meeting notice, and the meeting will not have to end if the audio or video connection to the courtesy site is lost. A board providing a courtesy site should be clear on its notice that it is unofficial courtesy site where no board members will be present, and that if the courtesy site loses its connection to the meeting site, the meeting may continue without the courtesy site. Board members themselves cannot be counted towards quorum or participate in a meeting from a courtesy location. Boards may, but are not required to, allow public testimony from a courtesy site.

[Section 92-4 requires two-thirds of the board members present to vote in favor of holding the executive session.]

The statement is false. Board members’ discussion of board business outside a board meeting is allowed only if it falls under one of the permitted interactions listed in section 92-2.5, HRS. Email discussions are not treated any differently than face-to-face discussions. There is no permitted interaction generally allowing less than a quorum of members to discuss board business by email. However, it is possible that in specific circumstances such a discussion would be allowed by a specific permitted interaction such as the one allowing discussion of leadership by less than a quorum of board members.

The second answer is correct because it is the statement that is not true. The Sunshine Law only requires that a board notify persons on its postal and email list that a board packet is available, that the packet be made available for public inspection, and that the board provides “reasonably prompt” electronic access to the packet upon request, which can be done by email in response to requests or by proactively posting the packet on the board’s website. The Sunshine Law specifically states that a board is not required to mail board packets.

The statement is true. Section 92-2.5(a), HRS, allows two board members to discuss board business outside a meeting so long as they don’t make or seek a commitment to vote. As with all permitted interactions, the members must take care not to subsequently extend their discussion to additional members through serial communications.

The second option is the correct answer. Section 92-3, HRS, requires a board to allow “all interested persons” to present oral testimony “on any agenda item” at every meeting. Thus, a board cannot deny the public the opportunity to testify on an agenda item based on the fact that a person may have testified at an earlier meeting or limit the scope of testimony to something narrower than the agenda item in question. However, the board is not required to accept testimony on issues that are not on the agenda. A board may also adopt a rule setting a reasonable time limit for testimony.

The first option is the correct answer. Section 92-8, HRS, allows a board to meet on less than six days’ notice when there is an emergency or an unanticipated event requiring the board’s response in less than six days’ time. The board must follow the requirements listed in that section. Neighborhood boards have slightly different requirements allowing them to add consideration of an unanticipated event to a previously scheduled meeting, but only if an agenda has already been filed when the unanticipated event arises.

The third option is the answer, because it is not true. A board must meet the requirements of both the first two options to add an item to the agenda for the board’s discussion, deliberation or decisionmaking. Even if it takes no action on the agenda item, the board’s discussion of the item would be in violation of the Sunshine Law unless it meets both requirements. If the board cannot meet both requirements, it still has the option to put the item on the agenda for a future meeting.

The statement is false. Section 92-3, HRS, allows “any person” to attend a meeting and present testimony. For this reason, OIP concluded in OIP Op. Ltr. No. 02-02 that anonymous attendance and testimony must be permitted, although boards may still REQUEST that people sign in.

The fourth answer is correct because it is the statement that is not true. The two-thirds vote by the board members present at the meeting must also constitute a majority of the members to which the board is entitled. For example, if the board is supposed to have 9 members, but only 6 have been appointed, then it still needs at least 5 members to constitute a majority of members to which it is entitled. If only 6 members are present at the meeting, then a 2/3 vote would be 4 members, but this is not enough to constitute the 5-member majority vote needed to go into executive session.