F18-01Posted on Jan 11, 2018 in Formal Opinions
Opinion Ltr. F18-01
January 11, 2018
Site Visits and Presentations as
Part of Adjudicatory Functions
A Requester asked OIP whether the Commission on Water Resource Management (CWRM) violated the Sunshine Law by holding a series of site visits and presentations which were not noticed or conducted as Sunshine Law meetings, and which were attended by a majority of CWRM members.
OIP found that the Sunshine Law’s exemption in section 92-6, HRS, for boards’ adjudicatory functions did not allow CWRM to hold a series of site visits and presentations without conducting them as Sunshine Law meetings. The site visits and presentations were not part of an adjudicatory function exempted from the Sunshine Law by section 92-6, HRS, and thus CWRM should have followed the Sunshine Law’s requirements when conducting them.
The federal National Park Service had petitioned CWRM to designate the Keauhou Aquifer as a ground water management area pursuant to section 174C-41, HRS. After initially planning to hold a limited meeting under section 92‑3.1, HRS, for a planned series of site visits in the area of the Keauhou Aquifer, CWRM concluded that the site visits were an adjudicatory function exempt from the Sunshine Law, and instead distributed “Schedules” for a series of site visits by and presentations to CWRM members to take place September 17 and October 9, 2014. Most of the locations listed on the Schedules were harbors, wells, fishponds, and other sites relevant to the Keauhou Aquifer, but two locations were meeting rooms in which CWRM would view presentations, rather than sites of interest. The Schedules made clear that the site visits and presentations would not be conducted as public meetings and although the public would be allowed to be present for some of them, no public testimony would be accepted.
CWRM argued that its activities on the relevant dates were exempted from the Sunshine Law by section 92-6, HRS, because the series of site visits and presentations comprised an “investigation” that was part of a broader statutory scheme. However, OIP concluded that CWRM’s actions on the relevant dates were not part of an adjudicatory function exempted from the Sunshine Law by section 92-6, HRS, so CWRM violated the Sunshine Law by conducting them outside a noticed meeting and without falling under any permitted interaction. OIP noted that CWRM could have conducted the site visits in essentially the same way, while complying with the Sunshine Law, if it had followed the requirements to hold a limited meeting under section 92-3.1, HRS. The public impact of the violations thus arose primarily from CWRM’s denial of public testimony at the presentations, the public’s exclusion from any discussion of board business that may have occurred during lunch or while in transit, and CWRM’s failure to subsequently prepare meeting minutes as required by section 92-9, HRS.