Posted on Nov 3, 2023 in Formal Opinions

Opinion Ltr. No. F24-03
November 3, 2023
Sunshine Law Requirements for Notice, Testimony,
Executive Sessions, and Voting, and Potential Remedies

An anonymous Requester asked OIP to decide whether the Agribusiness Development Corporation Board of Directors (Board) violated the Sunshine Law during its selection of a new executive director (ED).  This opinion discusses several requirements of the Sunshine Law.

Notice­:  Sections 92-7 and 92-3.7(a), HRS, require that a notice be filed six days before a meeting; that it include the location of the meeting; and for remote meetings, the notice must list at least one physical location open to the public.  The notice for the Board’s meeting on August 8, 2023, clearly stated it was a remote meeting under section 92-3.7, HRS.  The notice did not state that the executive session would be in person only, but during the meeting, the members were required to attend the executive session in person.  OIP concluded that the meeting notice did not give proper notice that the “location” of the executive session would be only the listed in-person meeting location and Board members could not participate via remote link.  This resulted in little, if any, harm to the public, as the public is not entitled to attend executive sessions.  However, the Sunshine Law’s protections apply to board members as well as the public, and a meeting notice also serves as notice to the members of a board.  Because members were prevented from participating remotely in the executive session, OIP found that the improper notice of the in-person only executive session deprived Board members of the ability to attend and participate in the executive session in violation of section 92-3, HRS.

Testimony:  The Sunshine Law requires that boards accept oral and written testimony on any agenda item, and it does not exclude executive session agenda items from that requirement.  Prior to taking a vote to enter executive session during the public portions of the Board’s meetings on August 8, September 21, and October 3, 2023, the Board allowed public testimony only on the decision to go into executive session, and not on the executive session agenda items themselves.  OIP found that the Board denied the public’s right to testify on the agenda items the Board discussed in executive session, and OIP concluded that the Board’s denial violated section 92-3, HRS.

Executive Session Discussion and Votes on an Employee Hire:  Section 92-5(a)(2), HRS, allows a board to enter an executive session to consider the hire of an officer or employee where consideration of matters affecting privacy will be involved.  The Board relied on this executive session purpose when it met in executive session to interview the top two candidates for the ED position, to set the next ED’s salary, to select a candidate to make an employment offer to, and to decide how to inform the public of its hiring decision.  OIP found the Board met the Sunshine Law requirements to vote to enter an executive session in accordance with section 92-4(a), HRS, and that it had a valid reason to enter an executive session under section 92-5(a)(2), HRS, to interview candidates and then to discuss the selection and salary of the new ED.  OIP found it could be reasonably anticipated that the executive session discussion of the candidates, including the salary discussion, involved consideration of matters affecting privacy.  OIP therefore concluded the Board was properly in executive session for these discussions.  However, the discussion on how to inform the public of the successful candidate’s selection did not implicate any privacy interests and should have been in the public portion of the meeting.

OIP further concluded the Board was permitted by the Sunshine Law to vote in executive session on selection of the ED to avoid revealing the candidates’ identities as both had privacy interests to be protected, and to protect the privacy interests of the selected candidate until such time as she accepted the employment offer.  Holding this vote in a public meeting would have revealed the candidates’ identities, which, at that time, carried privacy interests that allowed the Board to hold the executive session.  However, the Board should have voted in the public portion of the meeting on selection of the new ED’s salary because the salary discussion focused primarily on budgetary considerations and not on qualifications of either candidate such that a privacy interest would have been implicated.  Any vote on how to inform the public of the ED’s selection also would not have implicated any privacy interest and should be taken during the public portion of a meeting.

Secret Votes Prohibited by Sunshine Law:  Multiple provisions of the Sunshine Law require that votes be taken in a way that makes clear how each member voted.  HRS §§ 92-3.7(b)(5); 92-4; 92-9(a)(3), (b)(3).  The Board voted by secret ballot to select the ED during the executive session on August 8, 2023.  Because the secret ballot did not identify how each member voted, the Board was unable to meet the requirements of section 92 9, HRS, to keep minutes for all meetings, including executive session meetings, that include a record by individual member of any votes taken.  OIP concluded the Board’s secret ballot vote to select the ED taken during its executive session on August 8, 2023, was in violation of the Sunshine Law.

Executive Session Summaries:  Act 19, which was effective July 1, 2023, amended section 92-4, HRS, to require that any discussion or final action taken by a board in an executive meeting shall be reported to the public when the board reconvenes in the open meeting at which the executive meeting is held.  Act 19 further specifies that the information reported should not be inconsistent with the purpose for which the executive meeting was convened, and a board may maintain confidentiality of information for as long as its disclosure would defeat the purpose of convening the executive meeting.  The Act 19 report for the Board’s executive session on August 8, 2023, did adequately describe what happened, including reporting that the board had decided to make an offer to a candidate.  The Board’s failure to specify which candidate it had decided to make an offer to was justifiable to protect the candidates’ privacy, and thus avoid frustrating the purpose of the executive session, because the candidates had a privacy interest in the fact that they had applied for the ED position and at that point, the chosen candidate had not yet accepted the offer.

Remedies:  The Sunshine Law does not provide a way for a board to undo a prior violation by its subsequent action, so a board cannot entirely “cure” a violation, but it can make efforts to mitigate public harm from past violations and to follow proper procedures in the future.  While this appeal was pending, the Board publicly voted to ratify its earlier selection of the ED via secret ballot vote, which did mitigate the public harm from that and other violations.  While OIP favorably views timely and appropriate mitigation efforts, only the courts can determine whether such actions make voiding a board’s final action inappropriate or unnecessary, as only the courts have the power to void the final action of a board under section 92-11, HRS.  A circuit court action under section 92-11, HRS, to void a final action of a board must be filed within 90 days of the final action to be challenged.  The courts may provide additional remedies under section 92 12(b), HRS.

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