Following an appeal to the court by the board of the Office of Hawaiian Affairs (OHA), the First Circuit Court upheld the Office of Information Practices’ Opinion Letter No. F15-02, which had determined that the OHA board violated the Sunshine Law when it (1) engaged in serial communications outside a meeting when deciding to rescind a letter sent by its Chief Executive Officer (CEO); and (2) did not allow the public to testify on an agenda item scheduled for executive session. As allowed by law, OIP did not participate in the court’s April 19, 2017 hearing and let its opinion speak for itself, which resulted in the court’s “Order Denying Office of Hawaiian Affairs, Board of Trustees’ Motion for Summary Judgment” in S.P. No. 14-1-0543 (JPC).
The May 1, 2017 decision by Judge Jeffrey P. Crabtree has been posted to OIP’s website. On the first issue, Judge Crabtree concluded that OIP’s opinion was not palpably erroneous in finding that the OHA board’s rescission letter was “board business” subject to the Sunshine Law. The court reasoned that even if the CEO’s letter was beyond his authority as OHA argued, the board’s rescission letter was still board business that should have been discussed and decided in a meeting open to the public, or held pursuant to the emergency meeting or online video conference provisions of the Sunshine Law. Instead, the court agreed with OIP that by engaging in serial communications through phone calls and e-mails that led to the board’s decision to rescind the CEO’s letter, the board had violated the Sunshine Law.
At a noticed meeting held after the rescission letter had been sent, the OHA board immediately went into a closed executive session to discuss with its attorney the CEO’s contract and appropriate board action concerning his conduct, without first permitting public testimony. While the board could properly discuss private personnel issues with its attorney in an executive session, the court again agreed with OIP that the board first had to allow public testimony on the matter before going into the closed session. The court recognized that public testimony may have been helpful to the board and could have furthered the Sunshine Law’s policy of encouraging public participation. As the law requires the Sunshine Law to be liberally construed in favor of conducting business as openly as possible, the court concluded that OIP was not palpably erroneous in determining that the Sunshine Law’s public testimony requirement applied to executive session agenda items.
The OHA appeal was the first agency appeal to a circuit court taken from an OIP opinion since the 2013 amendments to the UIPA and Sunshine Law’s appeal provisions took effect. OIP is glad to see that the law is working as intended and that OIP’s opinion was upheld as being not palpably erroneous, without the need for OIP to defend it in court. For OIP’s law review article on the 2013 law and administrative rules and additional training materials, go to OIP’s training page.
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