S Memo 20-1

Posted on Sep 11, 2019 in Informal Opinions - Sunshine Law

S Memo 20-1
September 11, 2019
Meeting of Councilmembers

The permitted interaction at section 92-2.5(c), HRS, allows discussions between two or more members of a board, but less than the number of members that would constitute a quorum for the board, concerning the selection of the board’s officers in private without limitation or subsequent reporting.  Here, all seven of newly elected, but not yet sworn in, members of the Kauai County Council (COUNCIL-K), four of whom were incumbents, discussed leadership for the upcoming term in a publicly noticed meeting held after the general election but before they were sworn in.  OIP found that these members-elect did not violate the Sunshine Law when they met publicly to discuss and take “straw votes” on leadership for the upcoming term because they were not yet sworn in for the upcoming term of office, and therefore, were not subject to the Sunshine Law for that term.

OIP’s decision here was based on OIP Opinion Letter Number 02-11 (Opinion 02‑11), in which four incumbents and three “new-comers” elected to COUNCIL-K in the 1998 election met twice in a closed “caucus” before they were sworn in.  Opinion 02-11 noted the Sunshine Law is silent on how to treat a quorum of board members who have not yet officially taken office and wish to meet privately to discuss selection of board officers.  OIP concluded in Opinion 02-11 that the Sunshine Law creates an inadvertent loophole:  between the time that councilmembers are elected and the time they take office in accordance with a county charter, there is no requirement that they comply with the Sunshine Law.  OIP Op. Ltr. No. 02-11 at 12.  Such a scenario would clearly not be allowed once the councilmembers officially take office.  Id., at 14.

Notwithstanding this recognized loophole, OIP has strongly recommended, based on the spirit and intent of the Sunshine Law, that a quorum consisting of members-elect of a board not meet privately prior to officially taking office to discuss selection of board officers.  Id.  Here, COUNCIL-K implemented OIP’s recommendation and met in a publicly noticed meeting, even before they were subject to the Sunshine Law.  In addition, the apparent failure of COUNCIL-K’s email notice system and the procedures for testimony were also not Sunshine Law violations as they pertained to the same meeting on leadership.  Consequently, OIP found no Sunshine law violations for COUNCIL-K’s meeting.