Posted on Dec 12, 2022 in Formal Opinions

Opinion Ltr. No. F23-01
December 12, 2022
Permitted Interactions; Interactive Conference Technology;
Board Packets; and Related Sunshine Law Questions

The appellant was a member of the State Council on Mental Health (SCMH) at the time she filed two appeals alleging multiple violations of the Sunshine Law by the SCMH.  The allegations primarily involved the Sunshine Law’s provisions on investigative permitted interaction groups (PIGs), meetings held by interactive conference technology (ICT), and board packets.  OIP’s main holdings are as follows.

PIGs May Continue Work After Loss of a Member:  An investigative PIG formed under section 92‑2.5(b)(1), HRS, may continue with its assignment if it loses a member, so the SCMH’s PIG set up to plan its board retreat (Retreat PIG) was able to continue work after losing a member whose term on the SCMH ended.

Boards May Not Add New Members or Issues to Existing PIGs:  A board may not add new members or issues to an existing PIG.  An investigative PIG must report to the full board, after which it is in effect dissolved, and the board must wait until a subsequent meeting to discuss or act on the matter the PIG was handling, as required by section 92‑2.5(b)(1), HRS.

PIGs Automatically Dissolve After Reporting Once and Cannot Continue to Work:  After the Retreat PIG reported at the June meeting and was effectively dissolved, the SCMH violated the Sunshine Law by not treating the Retreat PIG as dissolved and instead allowing it to continue to work outside of the Sunshine Law’s constraints.

Boards May Not Discuss and Take Action Immediately After a PIG Reports, But Must Wait Until a Future Meeting:  The SCMH violated the Sunshine Law by taking immediate action to add members and issues to the Retreat PIG at its June 2019 meeting after the Retreat PIG reported at that same meeting.  Similarly, the SCMH violated the Sunshine Law at its October 2019 meeting by adding a member to a Retreat Planning PIG that had been previously established at the September 2019 meeting.

Discussion and Action on an Item at the Same Meeting:  Except when a board has established an investigative PIG, the Sunshine Law does not prohibit a board from both discussing and taking action on an issue during a single meeting, regardless of a board’s normal practice.  Therefore, the SCMH did not violate the Sunshine Law when it discussed and took action on a retreat facilitator at the same meeting.

“Informational Meeting” Without a Quorum Is Not Allowed Under Sunshine Law:  This issue was not raised by Requester, but the SCMH held what it called an “informational meeting” on more than one occasion when it did not have quorum.  If a board does not have a quorum, it cannot hold a meeting, even if the members do not vote to take any actions.  There is no permitted interaction in section 92-2.5, HRS, that allows less than a quorum of members to set up an “informational meeting” in lieu of a regular board meeting when a board does not have a quorum present at a meeting.  However, when the SCMH failed to achieve or lost quorum, it could have proceeded under the permitted interaction at section 92-2.5(d), HRS.  When a meeting must be canceled for lack of quorum, or terminated due to a loss of ICT connections, section 92-2.5(d), HRS, allows board members to receive testimony and presentations on agenda items and to question the testifiers or presenters, but it does not allow those members to discuss items on the canceled meeting’s agenda among themselves.

Meetings by Interactive Conference Technology (ICT): this section discusses section 92-3.5, HRS, as it read in 2019.  It was substantially amended by the Legislature in 2021.  The SCMH failed to follow some requirements for holding an ICT meeting under section 92-3.5, HRS, on more than one occasion.  These included ICT meetings where a temporarily disabled member properly attended from home but failed to note his general location or whether anyone else was present, and another ICT meeting that continued after the audio connection at a noticed location failed.  However, it was not a violation of section 92‑3.5, HRS, when a meeting proceeded with a noticed location that had no SCMH member present but was open and operational for the public.

The SCMH held an ICT meeting on March 10, 2020, which OIP found did not need to be cancelled due to loss of connection to a remote meeting site because the meeting minutes show that connectivity was only lost for three minutes.  However, when the appellant, who was an SCMH member, left the meeting during the recess while the ICT connection was being restored, the SCMH lost quorum, which effectively ended the meeting.  The subsequent discussion of “for information” agenda items by the remaining SCMH members was in violation of the Sunshine Law for the same reasons explained above.

No Violation of Board Packet Law When All Members Were Sent Electronic Copies, But Not Given Hard Copies at the Meeting:  The SCMH did not violate the Sunshine Law’s board packet requirements at section 92-7.5, HRS, when it emailed facilitator proposals but did not circulate paper copies to the members before a meeting, when it allowed a presentation to proceed without distributing handouts in advance, or when it discussed a draft brochure that had not been provided in advance of the meeting.

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