Posted on Jun 29, 2020 in Formal Opinions

Opinion Ltr. No. F20-05
June 29, 2020
Board Members’ Email Communication

Requester asked OIP whether the Makakilo/Kapolei/Honokai Hale Neighborhood Board No. 34 (Board) violated the Sunshine Law when Board members exchanged email communication about Board business.

In his complaint, Requester attached copies of (1) an email, dated March 29, 2019, which Board Chair Jack Legal (Chair Legal) received from a then-member of the Board named Dean with the subject, “Regarding Noise from Race Track next to a[n] airport,” and (2) Chair Legal’s reply email on the same date and on the same subject matter (collectively, Racetrack Emails).  Two other Board members were listed as “cc” recipients of the Racetrack Emails, one of whom was Board Member Keoni Dudley (Member Dudley).

On the same thread as the Racetrack Emails was an email dated March 30, 2019, concerning the proposed racetrack, which was sent by Member Dudley as both the sender and the sole recipient, and addressed “Aloha Jack,” who is presumably Chair Legal but was not shown as a recipient.  Requester later supplemented his complaint, sending to OIP a copy of an earlier email, dated September 7, 2018, showing Member Dudley again as the sender and Chair Legal as the sole recipient.  Requester asserted that he received the March and September emails (collectively, Member Dudley’s Emails) from another Board member who did not want to be identified and was not listed as a recipient of either email, but who had directly received both emails from Member Dudley.  It appears, therefore, that both emails were blind copied to the unidentified Board member, who, along with Chair Legal, would have been at least a second recipient of Member Dudley’s Emails concerning the proposed racetrack.

OIP reviewed the Board’s notice for the meeting on April 24, 2019, and it included an agenda item for “Discussion on Racetrack as Identified in City Council Resolution 18-2655-Librado Cobian[.]”  OIP therefore found that the Racetrack Emails concerned “board business” because the proposed racetrack was a subject the Board expected to consider at an upcoming meeting.

In light of OIP’s conclusion in OIP Opinion Letter Number F19-03 that “an email from one board member to all other board members about board business is a ʻdiscussion’ for the purpose of the Sunshine Law,” OIP found that the exchange of the Racetrack Emails was a discussion of the Board’s business outside of a public meeting.  After reviewing the facts presented by Chair Legal, OIP finds that no permitted interaction in section 92-2.5, HRS, allowed such a discussion by three or more Board members to occur outside of a public meeting.  OIP concluded that the Board’s discussion by its exchange of Racetrack Emails violated the Sunshine Law’s open meeting requirement.  HRS § 92-3.

OIP noted this Board had a history of improperly using emails to discuss Board business outside of meetings.  In a prior Sunshine Law Memorandum Opinion, S MEMO 12-12, OIP had found that email messages among Board members constituted improper Board discussion of official business in violation of the Sunshine Law’s open meeting requirement.  S MEMO 12-12 at 1-2.  On October 2 and 10, 2018, the NCO had emailed OIP’s Attorney of the Day service regarding whether certain emails between Board members violated the Sunshine Law.  In response, OIP advised the NCO that the emails were improper discussions of board business outside a noticed meeting in violation of the Sunshine Law.  The NCO on three occasions warned the Board by email that it should not be discussing Board business by using emails.

Based on the number of instances where this Board and certain individual members have used emails to discuss Board business, OIP may refer to the appropriate authorities any future instances where the Board has used email to discuss Board business in violation of the Sunshine Law.

After reviewing Requester’s complaint and Member Dudley’s Emails, OIP further found substantial evidence that the latter’s emails were sent to other Board members as blind copies.  Even though Member Dudley was the only visible sender and sole recipient for the March email, he apparently sent it as a blind copy to Chair Legal because of the email’s salutation, “Aloha Jack.”  Moreover, both of Member Dudley’s Emails had been obtained by Requester from another Board member who had been emailed them directly from Member Dudley but was not listed as a recipient.

Member Dudley’s sending emails as blind copies did not in any way reduce the resulting Sunshine Law violations.  An email directly sent to a recipient as a blind copy, or an email directly sent to a recipient as a “cc,” is still a direct communication from the sender to the recipient for the purpose of determining whether there has been a discussion under the Sunshine Law.  OIP found that Member Dudley’s sending of emails to more than one other Board member, even as blind copies, constituted an improper discussion of board business outside of a public meeting in violation of the Sunshine Law.  OIP Op. Ltr. No. F19-03 at 10.

Notably, S MEMO 12-12 also specifically involved Member Dudley sending email messages to all Board members concerning Board business.  Member Dudley received an official warning in S MEMO 12-12.  He has disregarded prior warnings and has continued with email communications with other Board members regarding Board business.  OIP notes that Member Dudley was not presented with an opportunity to personally respond to this appeal, as it was brought against the Board as a whole, and OIP in any case lacks the authority to enforce the Sunshine Law against an individual board member.  However, OIP finds his continued use of emails in what appears to be a deliberate circumvention of the Sunshine Law sufficiently concerning that OIP is referring Member Dudley’s actions to the Commission’s Executive Secretary for the filing of a Complaint under section 2-18-101, Rules and Procedures of the Neighborhood Commission (2017) (RPNC) to investigate his actions and consider whether they warrant removal from the Board.

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