Posted on Oct 11, 2018 in Featured, What's New

The Office of Information Practices (OIP) invites you to provide input on its draft legislative proposal for the upcoming 2019 session, which is also posted on the Laws/Rules/Opinions page under Legislation.  OIP encourages you to review the draft bill and provide your written comments by October 31, 2018.

OIP’s intent behind the draft bill is to promote government accountability and increase public participation in government while also considering issues of individual privacy rights, public protection, dissemination of accurate information, and timely government action, especially during emergencies.  OIP is proactively attempting to clarify emergency and regular meeting provisions so that state and county boards will have better guidance as to how they must conduct public meetings that are subject to the Sunshine Law and can more readily discuss, inform the public, and act on items concerning imminent peril during emergencies.  The draft bill is summarized as follows.

First, the draft bill would allow all Sunshine Law boards, and not just neighborhood boards, to timely meet and act when an imminent peril to public health, safety, or welfare (such as a hurricane or tsunami) arises after the board has already scheduled a meeting.  Rather than requiring a board to schedule a separate emergency meeting, the draft bill would allow a board to discuss and act on the imminent peril at an already scheduled and noticed public meeting.  A similar provision in chapter 92 that applies only to neighborhood boards would be deleted to eliminate its potential conflict with the proposed Sunshine Law revision and to provide for uniform and consistent administration by OIP.  By allowing any state or county board to have the same flexibility as neighborhood boards to discuss, deliberate, and make decisions at an already scheduled meeting, this bill could help to allay public fears, provide the dissemination of more accurate information, and allow the board to timely act within its authority during an emergency situation.

Second, the draft bill would amend the emergency meeting provisions in section 92-8(d), HRS, to allow for an alternative form of notice when posting on an electronic calendar is not possible, and it would be triggered by the Governor’s declaration of a state of emergency.  For example, if the Governor declares a state of emergency from a hurricane and power outages or interruptions in internet service prevent the posting on the electronic calendar, then a board could give notice of an emergency meeting via an alternative means such as radio or television announcements, with the concurrence of the Attorney General, who must also concur under existing section 92-8(b)(1) that the conditions exist to call for an emergency meeting.

Third, this bill amends existing law that requires that two-thirds of members to which the board is “entitled” must agree to written findings that an emergency meeting is needed, but this may be impossible if a board does not have its full complement of members.  The draft bill would instead base the two-thirds vote on the members who are “currently appointed,” a distinction that will be further addressed in fifth point below.  Additionally, the draft bill would expressly allow members to be polled outside of a meeting, such as via telephone calls or emails, to determine whether an emergency meeting should be held.  Thus, the draft bill would allow two-thirds of the “currently appointed” board members to be polled by telephone calls or emails to decide whether or not to hold an emergency meeting.

Fourth, the draft bill would expressly exempt emergency meetings from the prohibition in HRS section 92-7(d) that items cannot be added to meeting agendas.  Given the nature of emergencies, boards cannot anticipate all items that they may need to address as a result of an emergency, so this change would give boards the necessary flexibility at an emergency meeting to be able to discuss, deliberate, and make decisions concerning imminent peril items.  For example, because county councils are “boards” subject to the Sunshine Law, the draft bill would allow them to discuss and deliberate the authorization of funds or personnel to respond to a hurricane or disaster during an emergency meeting.  For all other meetings, including emergency meetings for unanticipated events such as legislative hearings, the Sunshine Law would continue to require that an item can be added to the agenda only if it is not of reasonably major importance and does not affect a significant number of persons, in addition to the voting requirement to be discussed next.

Fifth, the draft bill would make consistent the voting requirements for a board to add an agenda item or to go into executive session.  Currently, under section 92-7, HRS, the board must vote to add an agenda item by two-thirds of members to which the board is “entitled.”  In contrast, section 92-4, HRS, allows a board to go into executive session with an affirmative vote of two-thirds of the members “present,” provided they constitute a majority of the members to which the board is “entitled.”  The different voting requirements under current law creates a confusing situation and one that may not be possible for some boards to meet.  This bill proposes to amend section 92-7(d) to make the two-thirds vote requirements consistent with section 92-4.  Thus, to add an item to an agenda or to go into executive session, the draft bill requires a board to obtain an affirmative vote of two-thirds of members present at the meeting, provided they constitute a majority of the members to which the board is entitled. 

As an example of how the current law may make it be impossible for a board to add minor items to its agenda, let’s assume that a board does not have its full complement of members or consistently struggles to meet its quorum.  Under current law, if the board is entitled to 9 members, but only 5 members are appointed or show up for meetings, then it cannot reach the 6 members needed for a 2/3 vote of its full complement of 9 members to add a minor item to an agenda.  Under the draft bill, however, the same board can vote with 5 members present to amend an agenda, because those 5 votes will be the majority of the 9 members to which the board is entitled and will also exceed the 4 members needed to meet the 2/3 vote of the 5 members present.  Please note that except during emergency meetings, items of reasonably major importance that will affect a significant number of persons could not be added to an agenda under either current law or the draft bill.

With respect to executive sessions, under current law the board would need a 2/3 vote of the 5 members “present,” i.e., 4 members, provided they constitute a majority of all 9 members to which it is “entitled,” thus requiring at least 5 votes.  If less than 5 members have been appointed to the board, then it would not be able to go into executive session, even to discuss matters that must be kept confidential by state or federal law or a court order, to consider sensitive matters related to public safety or security, or for other reasons under the Sunshine Law authorizing the board to hold a meeting closed to the public.

Because of the complexity of the changes being considered, OIP would like to give everyone an early opportunity to comment on the draft bill, before it is finalized for introduction and consideration by the Legislature in 2019.  Please email your comments by October 31, 2018 to OIP at oip.hawaii.gov or mail them to OIP at 250 S. Hotel Street, Suite 107, Honolulu, Hawaii 96813.