S Memo 19-3Posted on Apr 1, 2019 in Informal Opinions - Sunshine Law
S Memo 19-3
April 1, 2019
A member of the public (Requester) asked whether the Honolulu Authority for Rapid Transit (HART) violated the Sunshine Law by entering an executive meeting to discuss with its attorneys a presentation made by the State Legislative Auditor (Auditor) during the public portion of a meeting. The Auditor’s presentation was listed as item VII on HART’s public meeting agenda.
The Sunshine Law requires generally that all board meetings shall be open to the public, and persons shall be permitted to attend and be given the opportunity to provide written and oral testimony, unless the meeting is closed pursuant to sections 92-4 and 92-5, HRS. HRS § 92-3 (2012). Section 92-5(a), HRS, sets forth the purposes for which a board subject to the Sunshine Law may enter into an executive meeting closed to the public. Requester alleged that the reason for HART’s executive meeting was not in accordance with any of the purposes in section 92-5(a), HRS. HART invoked section 92-5(a)(4), HRS, which allows a board to enter into executive meeting to “consult with the board’s attorney on questions and issues pertaining to the board’s powers, duties, privileges, immunities, and liabilities[.]”
Based on OIP’s in camera review of the executive meeting minutes, OIP found that HART members did discuss their legal concerns that were raised during the Auditor’s presentation. The executive meeting minutes also showed there were two deputies present from City and County of Honolulu Department of the Corporation Counsel, and one of them did speak directly to HART regarding legal issues discussed by members. Thus, OIP found that HART was “consult[ing] with [its] attorney on “questions and issues pertaining to [its] powers, duties, privileges, immunities, and liabilities[.]” HART’s discussion of agenda item VII in executive meeting was proper under section 92‑5(a)(4), HRS, and not in violation of the Sunshine Law’s open meeting requirement.
Because some of HART’s high level employees and board staff were also present in the executive meeting, OIP also provided guidance to HART regarding the presence of nonmembers of a board during executive meetings and how to preserve the executive character of executive meeting discussions. OIP was not asked to and did not draw a conclusion as to whether any non-attorney attendee’s presence in HART’s executive meeting was unnecessary or may have altered the executive character of the meeting.