Office of Information Practices

S Memo 24-01
March 25, 2024
Nexus Between Discussion and Agenda Item
Discussion of Topic Not on Agenda

A member of the public (Requester) asked whether the State Public Charter School Commission (PCSC) violated the Sunshine Law during its meeting on May 26, 2022 (2022 Meeting), by discussing and taking action on an investigation of Kamalani Academy, which Requester alleged was not a topic listed on the agenda for the meeting.  Requester also asked whether PCSC violated the Sunshine Law by moving to include an evaluation of the interim director’s performance in an ongoing permitted interaction group’s (PIG) investigation, when the PIG was originally tasked to make recommendations for the process to fill the director’s position permanently.   

Requester also asked for an investigation into whether PCSC violated the Sunshine Law during its meeting on July 13, 2023 (2023 Meeting), when one board member brought up a topic not listed in the agenda, and PCSC refused to discuss the topic because it was not listed in the agenda.  Requester also asked whether PCSC violated the Sunshine Law by posting minutes for the 2023 Meeting that were allegedly not a true reflection of the matters discussed and the views of the participants. 

When a dispute arises as to whether an item a board considered at a meeting, OIP considers whether there was a sufficient nexus between an item as listed on the agenda and the direction the discussion in a meeting takes, so as to ensure that the public has been provided reasonable notice to present meaningful testimony.  Additionally, if the board had reason to believe that such an item might be raised at its meeting and did not list that item in the agenda, the item should not be discussed. OIP found that although the discussion of overall contract compliance was a natural consequence of discussing the agenda item, PCSC was aware prior to the meeting that it would have to discuss that topic and nonetheless did not list it on its agenda.  OIP further found that the agenda item was specifically limited to only a portion of a contract to add a virtual program, and it did not notify the public that PCSC would be required to discuss its compliance with the contract as a whole.  OIP concluded that PCSC’s discussion of overall contract compliance did not fall within the agenda item and was thus in violation of the Sunshine Law. 

The Sunshine Law allows a board to create a PIG to investigate an issue, which allows members of the PIG to discuss that issue outside of a meeting.  However, the scope of the PIG’s investigation must be set at the meeting the PIG is created, and the board cannot add issues to an existing PIG or discuss the issue until the PIG makes its report to the board.  OIP found that evaluating the performance of the interim executive director was not within the scope of the PIG’s authority to review and update the executive director job description. OIP thus concluded that PCSC’s discussion of and vote to authorize the already-existing PIG to also evaluate the performance of the interim executive director meant that the PIG did not comply with the requirements of section 92-2.5(b)(1), Hawaii Revised Statutes, and, since its discussions were not covered by any other permitted interaction, PCSC violated the Sunshine Law. 

The Sunshine Law also requires a board to post a meeting notice that includes an agenda containing a list of all topics the board will consider at the meeting, and therefore, boards are generally not permitted to discuss topics that are not listed on the agenda for a meeting.  OIP found that there was no nexus between the topic of a recently passed nepotism law raised by a commissioner and any items listed on the agenda for the 2023 Meeting sufficient to make discussion of the nepotism law a natural consequence of the discussion of an agenda item.  Instead, OIP found that the commissioner’s statements were a communication to other board members of a topic not listed in the agenda for the 2023 Meeting.  OIP further found that PCSC successfully prevented any discussion from taking place after the commissioner brought up the topic.  Therefore, OIP concluded that although the commissioner risked violating the Sunshine Law, PCSC was able to successfully avoid a violation and prevented public harm by stopping discussion of a matter not on the agenda.  

The Sunshine Law requires boards to post minutes of meetings that “give a true reflection of the matters discussed at a meeting and the views of the participants.”  OIP found that PCSC’s minutes for the 2023 Meeting were not a true reflection of the matters discussed and the views of the participants because the 2023 Minutes did not specify who objected to the topic not listed on the agenda being raised and was somewhat misleading suggesting multiple commissioners objected, when only the Chair and a staff member intervened to prevent further discussion.  OIP therefore concluded that the minutes constitute a minor violation of the Sunshine Law and should be amended to reflect which members spoke.