Posted on Aug 4, 2005 in Formal Opinions

Opinion Letter No. 05-15
August 4, 2005
Serial One-On-One Communications

A City Council member may not use the “permitted interaction” under section 92-2.5(a) of the Sunshine Law (which allows two members to discuss “board business” with each other outside of an open meeting as long as no commitment to vote is made or sought) to discuss Council business with another Council member, then use the same permitted interaction to discuss the same Council business with other Council members through a series of private one-on-one discussions.

Notwithstanding the explicit statutory language that prohibits a permitted interaction from being used to circumvent the spirit or requirements of the Sunshine Law, the Council argued that, as long as they did not seek or make a commitment to vote, the public is unharmed by Council members discussing Council business through a series of private one-on-one discussions. Under the Council’s interpretation, Council members could privately discuss, for instance, raising property taxes — without public notice, without public testimony and without minutes reflecting the Council members’ discussion — and could decide the matter at a Council meeting without any discussion.

The Sunshine Law, however, is intended to “[o]pen[] up the governmental processes to public scrutiny and participation” and requires that the council’s discussions, deliberations, decisions and actions be conducted as openly as possible. Haw. Rev. Stat. § 92-1 (1993).

Consistent with the legislative intent, unless an exception or other statutory provision expressly allows the Council members to discuss Council business outside of a properly noticed meeting, the public has an absolute right to participate in the Council’s meeting and to hear all of the Council’s discussions, deliberations, decisions and actions. Accordingly, OIP advised the Council that the series of one-on-one discussions between more than two Council members about the same Council business was contrary to and violated the Sunshine Law.

full text