Posted on Feb 9, 2017 in Featured, What's New

The state Office of Information Practices (OIP) today issued S MEMO 17-3 regarding private discussions by councilmembers regarding their selection of officers.  Following a newspaper report about changes in the Council’s leadership after the 2016 election, an anonymous member of the public (Requester) had asked for an investigation into whether members of the Honolulu City Council (Council) violated the Sunshine Law by engaging in private discussions, including alleged serial communications, to select a new Council chair.

After obtaining statements provided by seven of the nine sitting Councilmembers, OIP found that four members privately discussed a resolution setting leadership positions, but did not constitute a quorumOIP found no evidence to show that more than a quorum Councilmembers engaged in discussions or serial communications in violation of the Sunshine Law or the spirit of the Sunshine Law.  OIP concluded that the Councilmembers’ discussion by less than a quorum of members was in accordance with the Sunshine Law’s permitted interaction at section 92-2.5(c), HRS.  

Even if there had been a quorum, OIP has previously decided that the Sunshine Law allows a quorum of elected but not yet sworn in Councilmembers to discuss selection of officers for their upcoming term. OIP Opinion Letter Number 02-11 (opining that councilmembers do not become subject to the Sunshine Law until their terms of office commence under their respective county charters).  In the present case, at the time the actions complained of occurred, four members of the Council were in the middle of serving a term and five Councilmembers were incumbents who had been recently reelected for a new term but were not yet sworn in.  Therefore, under OIP Opinion Letter Number 02-11, even if a quorum of newly reelected Councilmembers for the term commencing on January 3, 2017, had been discussing selection of officers, the discussion would not have been prohibited under the Sunshine Law because they were discussing selection of officers for their upcoming terms for which they had not yet been sworn in.

OIP distinguished the Right to Know Comm. v. City Council, 117 Haw. 1, 175 P.3d 111 (2007) (Right to Know), and OIP Opinion Letter Number 05‑15 as not being applicable to the current situation.  Both Right to Know, and Opinion 05-11 opined on a different situation that involved a mid-term leadership reorganization where a quorum of the Council, who had already been sworn in, had engaged in private serial communications outside of a meeting.  OIP found that the members’ actions in that case violated the intent and spirit of the Sunshine Law, and the Hawaii Intermediate Court of Appeals in Right to Know agreed that engaging in a series of one-on-one conversations relating to a particular item of Council business circumvented the spirit of the Sunshine Law’s open meeting requirement.

Recent cases filed with OIP that similarly questioned the Maui Council’s organization after the 2016 elections were dismissed at the request of the requesters yesterday.

Finally, OIP notes that the Legislature is considering proposals that would amend HRS 92-2.5(c):  SB 1209, HB 952, and HB 1383.  These bills can be found on the Legislature’s website at capitol.hawaii.org.

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