Office of Information Practices

S Memo 19-4
April 26, 2019
Improper Discussion of Matter Not on Filed Agenda
and Failure to Allow Public Testimony

A member of the public (Requester) asked for an investigation into whether the Land Use Commission (LUC) violated the Sunshine Law by improperly discussing in executive session an item not on the agenda of its public meeting on November 14, 2018 (Meeting), and not allowing public testimony on the executive matter.  After the opening of this appeal, Requester also complained that the LUC did not have the requisite number of members present to vote to amend its agenda to add the executive session item.

The LUC’s response to the appeal explained that it discussed subpoenas with its attorney in the executive session, which was not on the agenda as filed.  OIP found that the LUC improperly discussed an item not on its agenda in violation of the Sunshine Law.  Further, the LUC could not have voted to amend its agenda to add this item because it did not have enough members present at the Meeting to amend its agenda to add an item.  Assuming the LUC intended to amend its agenda to add a discussion of subpoenas, the minutes and transcript of the Meeting show it did not actually vote to do so.  See HRS § 92-7 (Supp. 2018).

While OIP need not reach these issues here after finding there were not enough members to vote to add an agenda item, OIP notes that boards may not add an item to a filed agenda if the item is of reasonably major importance affecting a significant number of persons.  HRS § 92-7(d).  Additionally, a discussion of the terms “Waikoloa” or “subpoenas” may have been too broad to allow a member of the public to decide whether to participate in the meeting.

Although the LUC should not have discussed an item not on its agenda, given that the LUC was evidently treating the discussion of subpoenas with its attorney in executive session as an agenda item, it should have allowed testimony on that item as would be required for any agenda item, whether or not discussed in executive session.  See HRS § 92-3 (2012); OIP Op. Ltr. No.15-02.