S Memo 18-6

Posted on Jun 28, 2018 in Informal Opinions - Sunshine Law

S Memo 18-6
June 28, 2018
Oral Testimony for Reconsideration Hearing

Requester asked whether the Liquor Commission, City and County of Honolulu (LIQC-HON) violated the Sunshine Law at its meeting on October 16, 2014 (Meeting) by not taking testimony about the item listed on its agenda (Agenda) as “Request for Reconsideration of Commission’s decision to approve application” (Recon Request).

Section 92-6, HRS, exempts from the Sunshine Law the state judicial branch and quasi-judicial boards, including the “adjudicatory functions exercised by a board and governed by sections 91-8 and 91-9, or authorized by other sections of the [HRS].”  HRS § 92‑6(a) (2012).  As OIP explained in OIP Opinion Letter Number F18-01, the exemption is primarily intended to cover contested cases subject to sections 91-8 and 91-9, HRS, but its language allows for the possibility of a similar adjudicatory function for which the process is set out elsewhere in HRS.  OIP Op. Ltr. No. F18‑01.

Part IV, of chapter 281, HRS, sets forth the “Procedure for Obtaining [Liquor] License” (Statutory License Procedure) and requires LIQC-HON to conduct a public hearing before granting a license. HRS § 281-52 (2007).  As the Hawaii Supreme Court opined in E & J Lounge Operating Co. v. Liquor Comm’n of City & Cty. Of Honolulu, 118 Haw. 320, 189 P. 3d 432 (2008), public hearings on liquor license applications held by LIQC-HON are contested case hearings subject to the requirements of HRS chapter 91.  118 Haw. at 340.

Similarly, the Hawaii Supreme Court previously considered whether a planning commission’s consideration of a motion for reconsideration was an adjudicatory function that was exempt from the Sunshine Law requirements.  Chang v. Planning Commission, 64 Haw. 431 (1982).  In Chang, the Court held, “the commission’s closed deliberations on Makena Surf’s permit application and on appellant’s subsequent motion and petition were permissible under HRS § 92-6(a)(2) despite the open meeting mandate of HRS § 92-3.”  Id. at 443.

In light of the Court’s decisions regarding LIQC-HON’s public hearings on liquor license applications and a planning commission’s consideration of a motion for reconsideration of an application, OIP opines that LIQC-HON’s consideration of the Recon Request was within the scope of its “adjudicatory functions.”  Consequently, the Sunshine Law’s open meeting requirements, including its public testimony requirement, did not apply to the Recon Request when it was considered by LIQC-HON at the Meeting. HRS § 92-6(a)(2).

OIP, however, is authorized to determine the adequacy of the notice provided for a meeting with respect to matters falling within the Sunshine Law.  The law requires a board to file written public notice of any meeting at least six calendar days before the meeting, and the notice must include an agenda that “lists all of the items to be considered” at that meeting.  HRS § 92-7(a), (b) (Supp. 2017).  The clear purpose of the Sunshine Law’s notice provisions is to give the public the opportunity to exercise its right to know and to participate in the formation and conduct of public policy.  See HRS §§ 92-1, -3 (2012).

In this case, the agenda items listed with reasonable specificity the matters that would be considered at the meeting.  See OIP Op. Ltr. No. 03-22; OIP Op. Ltr. No. 07-02; see also Op. Att’y Gen. No. 85-2 at 4 (stating that all matters should “be listed on the agendas . . . to give interested members of the public reasonably fair notice of what the [board] proposes to consider.”).  Consequently, OIP concludes that there was no Sunshine Law violation as to the adequacy of the notice provided for the topics subject to the Sunshine Law and listed in LIQC-HON’s Meeting Agenda.

However, given that LIQC-HON planned to consider items falling within its adjudicatory function as well as items whose consideration was subject to the Sunshine Law, the Meeting Agenda contained a confusing mix of matters, with no indication as to which were meeting matters governed by the Sunshine Law and which were adjudicatory matters governed by the Statutory License Procedure, chapter 91, HRS, or other laws governing LIQC-HON’s adjudicatory functions. OIP finds that this format to be confusing to the public, as people are unable to readily ascertain which items listed are meeting matters subject to the Sunshine Law’s testimony requirements or adjudicatory matters subject to different testimony requirements.

While it is not a violation of the Sunshine Law for LIQC-HON to include both regular meeting and adjudicatory hearing matters on the same agenda, OIP believes that the effectiveness of the notice is substantially compromised when a mix of regular and adjudicatory matters are listed without identifying which items are subject to the Sunshine Law and which items are adjudicatory matters subject to chapter 281, HRS.  OIP thus recommends that the LICQ-HON prepare its agenda with separate headings that clearly indicate whether matters are subject to the Sunshine Law or are adjudicatory matters, or it can prepare two separate agendas for Sunshine Law matters and for adjudicatory matters.