S Memo 12-6

Posted on Oct 4, 2011 in Informal Opinions - Sunshine Law

S Memo 12-6
October 4, 2011
Adequacy of Agendas; Permitted Interaction Group

A requester asked whether the Reapportionment Commission violated the Sunshine Law (1) by discussing items that were insufficiently noticed on its agendas for July 12 and 19, 2011, (2) by adding an item to its agenda by vote of 2/3 of its members at its June 28 meeting, and (3) by members’ participation in its Technical Committee.

OIP found that the July 12 agenda included several item descriptions that were too vague to notify the public of what, if anything, would be discussed under that heading. However, OIP further found that the minutes from that meeting show that the only topic actually discussed under those vague headings—inclusion of the military in the permanent resident population and the permanent resident population generally—was listed elsewhere on the agenda as an executive session agenda item. Thus, although the vague agenda items by themselves did not give sufficient notice to allow the Commission’s discussion of any topic, the public had notice from the executive session agenda item that this topic was coming before the Commission for its consideration at the meeting, so OIP concluded that, in this specific instance, the discussion did not violate the Sunshine Law. OIP also found that the July 19 agenda item, although less informative than it might have been, was legally adequate as notice to the public to allow the board’s discussion of the item.

OIP also found that the issue of which categories of persons should be included in the permanent resident population was both of reasonably major importance and affecting a significant number of persons, and as such would not have been a suitable item to be added to an agenda by a 2/3 vote of all members to which the Commission was entitled. However, the agenda as filed already listed that topic. The filed agenda described the topic as the subject of a report, and the Commission’s vote to add it was apparently made under the belief that the agenda should have specified that the Commission would take action on that topic; however, a board’s consideration of an item implicitly includes the possibility of board action on the item. Thus, in this particular case, the Commission’s vote to add the permanent resident population issue to the agenda was not necessary to allow the Commission to consider and take action on the issue. OIP concluded that the Commission’s vote on the issue did not violate the Sunshine Law because the action taken fell within the scope of an already noticed agenda item.

OIP further found that the Technical Committee was formed as a permitted interaction group under section 92-2.5(b)(1), HRS. The Commission voted to allow substitution of other members for the original Technical Committee membership, and the status of the Technical Committee’s work was listed as a topic on multiple agendas over a two-month span. However, the Technical Committee’s gatherings did not result in any substitution of members nor did the Committee make multiple reports back to the Commission; only the members originally appointed to the group participated in the group and the Technical Committee did not present a substantive report to the Commission until the last meeting reviewed by OIP. OIP concluded that despite the confusion created by the Commission’s agenda listings and vote to allow substitutions, in the specific circumstances before OIP, the manner in which the Technical Committee actually operated was consistent with the requirements of the permitted interaction and thus in compliance with the Sunshine Law.