Tuesday, January 1, 2008

Hawaii Supreme Court Holds that Serial Communications are Prohibited under Hawaii’s Sunshine Law

In Right to Know Committee v. City Council, City And County of Honolulu, Haw. Sct. (CIVIL NO. 05-1-1760-10 EEH) (December 28, 2007), the Hawaii Supreme Court held that members of the Honolulu City Council are not permitted to engage in serial communications involving a quorum of Council members in deliberating a council resolution.

In short, Councilmembers discussed a resolution outside of a public meeting which is prohibited under HRS Chapter 92, commonly referred to as the Sunshine Law. Under the open-meetings requirement of the Sunshine Law, "[e]very meeting of all boards shall be open to the public and all persons shall be permitted to attend any meeting unless otherwise provided in the constitution or as closed pursuant to sections 92-4 and 92-5." HRS § 92-3. However, the Sunshine Law does allow interactions between two members of a board to discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board.

In the instant case, Councilmembers argued that their discussions outside a public meeting were permissible because nothing prohibits one-on-one conversations from being serial. Therefore, after leaving one conversation, a Councilmember could engage another Councilmember in a discussion regarding matters relating to official board business.

The Court disagreed with Councilmembers. It opined that although the Sunshine Law does not expressly preclude Councilmembers from engaging in serial one-on-one conversations, one-on-one communications used to circumvent the spirit or requirements of the Sunshine Law to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power is impermissible. In practice, a series of one-on-one communications could result in board consensus outside of a public hearing, even if each member never spoke to each other one-on-one or in a group.

The Sunshine Law applies to planning commissions, the land use commission, county councils and other government boards and commissions except for the state legislature.

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