Posted on Nov 7, 2014 in Formal Opinions

Opinion Letter No. F15-02
November 7, 2014
Polling Board Members/Serial Communications;
Testimony on Executive Session Items

Six Hawaii residents asked whether (1) the Board of Trustees of the Office of Hawaiian Affairs (OHA) (OHA Board) complied with the Sunshine Law when its members (Trustees) jointly signed a letter dated May 9, 2014 (Rescission Letter), rescinding a letter dated May 5, 2014, that had previously been sent to United States Secretary of State John F. Kerry by OHA’s Chief Executive Officer (CEO), Dr. Kamana’opono Crabbe (Crabbe Letter), and (2) the OHA Board could refuse to accept oral testimony regarding an agenda item discussed in executive session during its meeting of May 19, 2014.

With respect to the first question, OHA argued that the OHA Board’s decision to rescind the Crabbe Letter did not require a meeting, because the Crabbe Letter was unauthorized and had no legal effect and the Rescission Letter was consistent with previously adopted OHA policy.  OIP noted that the question of whether the Trustees’ decision to sign the Rescission Letter complied with the Sunshine Law depended on whether rescinding the Crabbe Letter was OHA Board business, and whether the Trustees discussed that topic.

OIP found that although the Rescission Letter had never appeared on an OHA agenda, the mere fact that the Trustees discussed and immediately acted to respond to the Crabbe Letter was sufficient to indicate that the Trustees believed the OHA Board had supervision, control, jurisdiction, or advisory power over that issue and that it was a matter pending before the OHA Board.  OIP therefore concluded that the OHA Board’s response to the Crabbe Letter was OHA Board business.

OIP further found that all Trustees discussed whether the OHA Board should respond to the Crabbe Letter by sending the Rescission Letter through a series of one-on-one communications, either directly or through e-mail messages addressed to staff as mere go-betweens for board members.  OIP distinguished the messages sent via staff in this instance from the more typical situations where communications with staff would not be considered communications between board members because staff may independently pass on or compile information in the course of their duties.  Because the OHA Board’s serial discussion among all Trustees was not permitted under any part of section 92-2.5, HRS, and did not take place in a properly noticed meeting, OIP concluded that the Trustees’ communication violated the Sunshine Law.

Notably, however, the Trustees could have properly met to discuss board matters if the Sunshine Law’s emergency and interactive technology meeting provisions had been invoked.  OHA’s argument that the Crabbe Letter was unauthorized would have provided a basis for holding an emergency meeting based on an unanticipated event as permitted by section 92-8, HRS, and such an emergency meeting could have been done by interactive technology connecting Trustees in different locations as permitted by section 92-3.5, HRS.

With respect to the second question as to the public’s right to testify on an agenda item scheduled for executive session, OIP found that section 92-3, HRS, requires boards to “afford all interested persons an opportunity to present oral testimony on any agenda item,” and does not make an exception for items to be heard in executive session.  OIP therefore confirmed that the public has a right to present oral testimony on items to be heard in executive session, and the OHA Board’s failure to allow such testimony violated the Sunshine Law.

The OHA Board appealed OIP’s opinion in this case to the First Circuit Court, which upheld it in denying the Board’s Motion for Summary Judgment in S.P. No. 14-1-0543 JPC.  The court’s May 1, 2017 decision is posted here.

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