S Memo 12-13

Posted on Jun 21, 2012 in Informal Opinions - Sunshine Law

S Memo 12-13
June 21, 2012
Sunshine Law Complaints About Testimony, Minutes, and Agenda

Requester asked for an investigation into whether the Ewa Neighborhood Board (ENB or Board) violated the Sunshine Law by 1) refusing to allow testimony at two meetings; 2) limiting the public to only one question of persons presenting reports, limiting testimony to only one minute for some testifiers while allowing others to testify for longer, and in some cases, interrupting testifiers before one minute was up; 3) refusing to add a Board member’s requested reference into the minutes; and 4) refusing to place a Board member’s item on the ENB agenda. The Requester was an Ewa Neighborhood Board member at the time of the meetings that form the bases for the complaints.

Given the changes in ENB membership, the Neighborhood Commission’s Decision and Order relating to these and similar issues, and the ENB’s subsequent commitment to ameliorate the issues raised, OIP found detailed factual findings unnecessary to address the concerns raised by Requester. Instead, OIP offered this general guidance regarding the issues raised by the Requester.

(1) A board must allow any interested person to testify on any agenda item at every meeting. Hawaii Revised Statutes (HRS) § 92-3 (1993) (“boards shall also afford interested persons an opportunity to present oral testimony on any agenda item”). While a board member may testify as a member of the public, the Sunshine Law does not regulate how board members conduct their own discussion and deliberation of agenda items or whether the public may question other testifiers during the meeting. OIP Op. Ltr. No. 06-01.

(2) Reasonable time limits on testimony by the public may be imposed if a rule setting such limits has been previously adopted by a board at a meeting, but time limits must be fairly applied. OIP Op. Ltr. No. 02-02. A notice of time limits placed at the top of the meeting agenda does not substitute for a board’s adoption of a rule setting time limits, so a board should not seek to enforce time limits that are not based on a written rule adopted by the board at a previous meeting. And where a board has previously established time limits, those time limits must be applied in an evenhanded manner. Applying time limits only to some testifiers and not others is an improper restriction of testimony under the Sunshine Law.

(3) A request by a board member to add other information, such as a YouTube video reference, into the minutes must be accommodated. HRS § 92-9(a)(4)(1993). However, OIP has interpreted this to apply only to a request made during the same meeting in which the information is sought to be included in that meeting’s minutes. When the request is made at a meeting and the information was included in the minutes of that meeting, there is no Sunshine Law violation.

(4) And lastly, the Sunshine Law requires an agenda to provide adequate notice but does not address the board’s process in determining matters to be placed on an agenda. Since the Sunshine Law is not implicated in this case, Requester’s complaint about the agenda’s composition is outside of OIP’s jurisdiction. The requester may instead address this complaint to the Neighborhood Commission Office.