S Memo 12-14

Posted on Jun 26, 2012 in Informal Opinions - Sunshine Law

S Memo 12-14
June 26, 2012
Early Adjournment, Threats,
and Adequacy of Agenda

Requester asked for an investigation into whether the Ewa Beach Neighborhood Board (EBNB) violated the Sunshine Law at its meeting held December 10, 2009 (Meeting), by (1) the Chair’s unilateral adjournment of the Meeting, (2) an EBNB member’s threats of physical violence and property damage to a member of the public who sought to videotape a meeting, (3) the Chair’s action in shoving Requester, an EBNB member, and (4) a presentation on “Conduct of Board Meeting.” OIP noted that in the time since the Meeting, the EBNB has had considerable turnover in its membership. This opinion is therefore intended primarily as guidance for the current board members in their efforts to comply with the Sunshine Law.

OIP found the following:

(1) A board may adjourn a meeting without considering all items on the board’s agenda, unless it has begun hearing testimony or otherwise considering an item. Once the board begins considering an item, it must hear testimony from all interested persons prior to adjourning the meeting. The Sunshine Law is silent on the question of who has the authority to adjourn a board meeting. In the absence of any allegation that the meeting’s early adjournment prevented members of the public from testifying on an issue the board considered during the meeting, OIP could not find that the adjournment violated the Sunshine Law.

(2) The Sunshine Law provides a public right to make an audio recording of a meeting, but does not provide a similar right to make a video recording, so while OIP recommends that a board allow video recording, the law does not require a board to do so. However, if a board wishes to ban video cameras at its meetings, it must inform members of the public in a reasonable manner. Threatening physical violence and damage to personal property is not a reasonable way to ask a member of the public to stop video recording a meeting. Such threats are a deterrent to members of the public seeking to attend the meeting, and thus violate the Sunshine Law’s requirement that meetings be open to the public.

(3) The Sunshine Law’s open meeting requirement is concerned primarily with the public’s right to attend board meetings. Since a board member does not have a lesser right to attend a meeting than the general public, physical aggression directed against a fellow board member at a public meeting is likewise inconsistent with the Sunshine Law’s open meeting requirement; however, OIP could not find from the evidence presented here that the former EBNB Chair’s act of elbowing a member in the back constituted an independent Sunshine Law violation.

(4) The Sunshine Law does not specify who sets a board’s agenda, nor does it require that agenda items be non-defamatory. As the “Conduct of Board Meetings” issue was on the agenda, and as the presentation apparently did address the conduct of board meetings, OIP concluded that the agenda gave reasonable notice of what the board would consider under that item. The question of whether the presentation was defamatory is outside OIP’s jurisdiction.

Finally, OIP noted that the criminal laws are a more appropriate means than the Sunshine Law to pursue complaints of threats or physical altercations directed to either board members or members of the public.