S Memo 17-3

Posted on Feb 9, 2017 in Informal Opinions - Sunshine Law

S Memo 17-3
February 9, 2017
Private Discussions by Councilmembers
on Selection of Officers

Following a newspaper report about likely changes in the Honolulu City Council’s (Council) leadership after the 2016 election, an anonymous member of the public (Requester) asked for an investigation into whether members of the Council violated the Sunshine Law by engaging in private discussions, including serial communications, to select a new Council chair.

After obtaining statements from seven of the nine sitting Councilmembers, OIP found that four members privately discussed a resolution setting leadership positions, but they did not constitute a quorum.  OIP found no evidence to show that a quorum or more of 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 precedent determined 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 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 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 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.