S Memo 23-01Posted on Jun 30, 2023 in Informal Opinions - Sunshine Law
S Memo 23-01
June 30, 2023
Amending an Agenda to Discuss Issue
That Was Not Currently Board Business
Due to widespread community opposition to the liquor license renewal of Maunakea Liquor (ML), the Honolulu Liquor Commission (LIQC-HON) initiated administrative action in May 2019. During the same month, Downtown-Chinatown Neighborhood Board 13 (NB 13) took action and sent a letter to LIQC-HON expressing its members’ unanimous request to revoke ML’s license.
At NB 13’s September 2019 meeting, LIQC-HON representatives attended, so NB 13 voted to add LIQC-HON to that meeting agenda and discussed the status of the ML liquor license proceedings. Unbeknownst to NB 13, before the September meeting, LIQC-HON had already renewed ML’s license and dismissed the administrative action.
The Requester questioned whether NB 13 had properly amended its September meeting agenda to add LIQC-HON and discussed the status of the ML liquor license. OIP concluded that because NB 13 had previously taken action in May and its discussion of ML’s license at the September meeting did not involve a matter of current board business, no Sunshine Law violation occurred.
As OIP explained, whether an issue is board business depends not only on whether the matter is within the board’s area of responsibility, but also on whether the issue is one that the board is considering at the present time or expects to be considering soon enough that it is foreseeable. An issue that a board has considered in the past but that it does not expect to reconsider in the foreseeable future is not current board business, whether the issue has concluded altogether (such as approval for a now-completed development) and the board does not expect to ever consider it again, or the issue is one that has concluded for the present but periodically recurs (such as approval of a board’s biennium budget) and the board does not expect to consider it again until a substantial amount of time has passed and the specifics of the issue are likely to have changed.
At one point in this case, ML’s legal proceedings pending before LIQC-HON clearly did constitute a specific matter over which NB 13, as its community’s representative, had advisory power, and which NB 13 both considered and acted on at its May meeting when it decided to submit a letter to LIQC-HON expressing its unanimous objection to the renewal of ML’s license. However, it does not necessarily follow that just because ML’s license renewal was NB 13’s board business when NB 13 acted on it in May, it remained board business at the time of the September Meeting.
OIP found that NB 13 had already taken action in May by writing to notify LIQC‑HON of its opposition to ML’s liquor license renewal. Although NB 13’s members were understandably interested in hearing the outcome of LIQC-HON’s proceedings, OIP found that ML’s licensure was no longer a matter pending before NB 13 at the September Meeting, nor was there any indication that ML’s license was reasonably anticipated to arise before it again in the foreseeable future. Thus, OIP concluded that ML’s liquor license was not board business for the purpose of the Sunshine Law and the board’s discussion of this matter did not violate the law’s provisions.
Although OIP concluded that the issue of ML’s license was not NB 13’s board business at the time of the September Meeting, OIP noted that the issue is a cyclical one that can be expected to regularly arise before NB 13 whenever ML’s license comes up for renewal or is considered by LIQC-HON in connection with an administrative action. Consequently, OIP also discussed the Sunshine Law’s requirements for amending an agenda at a meeting and cautioned NB 13 to not add an item that “is of reasonably major importance” and whether board action will “affect a significant number of persons” in violation of section 92-7(d), HRS. As the ML liquor license remains of considerable concern to the community and will likely come before NB 13 when the license is up for renewal in the future, OIP advised the board to properly file advance notice of the issue on an agenda, rather than attempt to amend the agenda at a meeting as it did in this case.
OIP also examined section 92-81, HRS, a statute that applies exclusively to neighborhood boards and is one of several limited exceptions to the Sunshine Law. Section 92-81 allows members of the public to give input on matters even if they are not listed on an agenda, and further allows a discussion of those matters raised at a neighborhood board meeting. OIP found, however, that section 92-81, HRS, only allows members of the public to initiate discussion of an item that is not on the agenda. Because the topic of ML’s liquor license was raised by NB 13’s members and not by LIQC-HON or members of the public, this exception to the Sunshine Law did not apply.