Lawsuit and dispute over serial one-on-one meetings by the Honolulu City Council
Order from Judge Eden Hifo in ruling against serial meetings by the City Council
Jan. 27, 2006
Top legislators introduced bills to create a board to oversee and provide "guidance" to the Office of Information Practices, which has rankled at least two county councils over Sunshine Law violations.
The measures were introduced at the behest of the four county council chairmen.
Openness advocates say the measures would strip the Office of Information Practices of effectiveness or muzzle it.
The county council chairmen say the proposal would be akin to creating the Campaign Spending Commission.
The Campaign Spending Commission has the power to fine and recommend prosecution of violators.
The Office of Information Practices does not have such powers. It must get the attorney general to file a lawsuit against violators.
The bills do not give the Office of Information Practices any more powers.
It grants the board power to appoint and remove the director of Office of Information Practices.
The measures come on the heel of an opinion by the Office of Information Practices that the Honolulu City Council violated the Sunshine Law by holding one-on-one serial communications in vote gathering.
The Office of Information Practices has also issued an opinion that the Kauai County Council should release minutes of executive sessions to the public.
"Maintaining openness in government is vital to ensuring that people may effectively participate in their local governance," City Council Chairman Donovan Dela Cruz said in a news release. "We believe that a Board of Information Practices can be as effective and successful as the campaign spending and ethics commissions, both of which have done wonderful jobs promoting public participation in government."
To see a copy of the Senate version, SB 2657, click here
Jan. 25, 2006
Jeff Portnoy, attorney for eight news media and open government groups, reports that Circuit Court Judge Eden Hifo has ruled that one-on-one serial communications is illegal under the state Sunshine Law.
The lawsuit stems from the City Council's use of this form of "gathering votes" during a Council leadership reorganization last year.
City Council's response to lawsuit
LAWSUIT FILED AGAINST CITY COUNCIL OVER SECRET MEETINGS
News Release 10/3/05
• Society of Professional Journalists, Hawai'i Chapter • Right To Know Committee • Citizen Voice •
• League of Women Voters of Hawai'i • Big Island Press Club • Hawai'i Pro-Democracy Initiative •
• SPJ University of Hawai'i Chapter • Honolulu Community-Media Council •
P.O.Box 3141 • Honolulu, Hawai'i 96802 • 808-529-4755 • spj@flex.com
October 2, 2005
PRESS RELEASE
Contact: Stirling Morita
839-5021,
529-4755
EMBARGOED UNTIL 10:00 AM, MONDAY, OCTOBER 3, 2005
Open Government and Journalists Groups File Suit to End Secret Meetings
Today, eight open government and journalists organizations filed a lawsuit in circuit court seeking to stop the Honolulu City Council from holding secret one-on-one meetings on council business. The plantiffs are asking the court to enforce an August 4th Office of Information Practices ruling that this practice violates the state Sunshine Law.
The complaint alleges that the Honolulu City Council conducted a series of secret meetings, limited to two council members each, to discuss and reach preliminary agreement on Resolution No. 05-243 which was adopted on July 13, 2005. The plaintiffs ask the court to rule that this practice is illegal.
Attorneys Jeffrey Portnoy and Elijah Yip of Cades Schutte law firm filed the law suit on behalf of the plaintiffs in the circuit court of the First Judicial Circuit. Yip said, "It is clear that a series of secret one-on-one meetings that reaches a rolling quorum violates the intent and spirit of Hawai'i's open meetings law."
The group of plaintiffs includes the Right To Know Committee, League of Women Voters of Hawai'i, Citizen Voice, Hawai'i Pro-Democracy Initiative, Big Island Press Club, Society of Professional Journalists, Hawai'i Chapter, SPJ University of Hawai'i Chapter, and Honolulu Community-Media Council.
Speaking for the plaintiffs group, Stirling Morita, FOI Committee chairman for the Hawaii chapter of the Society of Professional Journalists, said "We hope this suit will signal to government that this type of backroom vote-gathering will not be tolerated. Our fear is that this will become a widespread practice shutting out the public from discussions and decisions on issues."
Beverly Keever, Right To Know Committee chair, said, "The law requires government boards to conduct their business in public. It allows two members to meet in private, but when business is discussed in a series of these meetings, this exemption is violated."
Sue Irvine, president of the League of Women Voters of Hawai'I, said, "When a government board skirts around the sunshine law, the attorney general or OIP should stop it. Citizens shouldn't have to do government's job. If it weren't for Messrs. Portnoy and Yip of Cades Schutte providing their services pro bono, we wouldn't be able to take legal action."
Beth-Ann Kozlovich, president of the Honolulu Community-Media Council, said "Unfortunately, taxpayers may have to pay to force the City Council to follow the law. That’s because the defendants will pay for the cost of the law suit if the court enforces the law."
For more information on the plaintiffs, contact Stirling Morita at 529-4755 or 839-5021 or spj@flex.com.
# # #
LAWSUIT
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CADES SCHUTTE LLP
JEFFREY S. PORTNOY 1211-0
ELIJAH YIP 7325-0
1000 Bishop Street, Suite 1200
Honolulu, HI 96813-4212
Telephone: (808) 521-9200
Attorneys for Plaintiffs
RIGHT TO KNOW COMMITTEE; LEAGUE OF
WOMEN VOTERS OF HAWAII; SOCIETY OF
PROFESSIONAL JOURNALISTS, HAWAII
CHAPTER; UNIVERSITY OF HAWAII
CHAPTER OF THE SOCIETY OF
PROFESSIONAL JOURNALISTS; BIG ISLAND
PRESS CLUB, INC.; HAWAII POLITICAL
REFORM PROJECT; CITIZEN VOICE; and
HONOLULU COMMUNITY MEDIA COUNCIL
IN THE CIRCUIT COURT OF THE FIRST CIRCUIT
STATE OF HAWAI‘I
RIGHT TO KNOW COMMITTEE, a
Hawai‘i non-profit corporation; LEAGUE OF
WOMEN VOTERS OF HAWAI‘I, a Hawai‘i
non-profit corporation; SOCIETY OF
PROFESSIONAL JOURNALISTS,
HAWAII CHAPTER, an Indiana not- forprofit
corporation; UNIVERSITY OF
HAWAII CHAPTER OF THE SOCIETY OF
PROFESSIONAL JOURNALISTS, an
Indiana not- for profit corporation; BIG
ISLAND PRESS CLUB, INC., a Hawai‘i
non-profit corporation; HAWAII
POLITICAL REFORM PROJECT, dba
Hawaii Pro-Democracy Initiative, a Hawai‘i
non-profit corporation; CITIZEN VOICE, a
Hawai‘i non-profit corporation; and
HONOLULU COMMUNITY MEDIA
COUNCIL, a Hawaii non-profit corporation,
Plaintiffs,
CIVIL NO. _______________________
(Declaratory Judgment)
COMPLAINT; EXHIBITS “1”-“5”;
SUMMONS
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v.
CITY COUNCIL, CITY AND COUNTY OF
HONOLULU; DONOVAN M. DELA CRUZ,
TODD K. APO, BARBARA MARSHALL,
CHARLES K. DJOU, ANN H. KOBAYASHI,
ROD TAM, ROMY M. CACHOLA, GARY
H. OKINO, and NESTOR R. GARCIA, in
their official capacities as members of the
Honolulu City Council,
Defendants.
COMPLAINT
Plaintiffs RIGHT TO KNOW COMMITTEE, a Hawai‘i non-profit corporation;
LEAGUE OF WOMEN VOTERS OF HAWAI‘I, a Hawai‘i non-profit corporation; SOCIETY
OF PROFESSIONAL JOURNALISTS, an Indiana not- for-profit corporation; BIG ISLAND
PRESS CLUB, INC., a Hawai‘i non-profit corporation; HAWAII POLITICAL REFORM
PROJECT, dba Hawaii Pro-Democracy Initiative, a Hawai‘i non-profit corporation; CITIZEN
VOICE, a Hawai‘i non-profit corporation; and HONOLULU COMMUNITY MEDIA
COUNCIL, a Hawai‘i non-profit corporation (collectively, “Plaintiffs”), allege for their claims
for relief against Defendants CITY COUNCIL, CITY AND COUNTY OF HONOLULU;
DONOVAN DELA CRUZ, TODD K. APO, BARBARA MARSHALL, CHARLES K. DJOU,
ANN H. KOBAYASHI, ROD TAM, ROMY M. CACHOLA, GARY H. OKINO, and NESTOR
R. GARCIA, in their official capacities as members of the Honolulu City Council (collectively,
“Defendants ”), as follows:
PARTIES
1. Plaintiff RIGHT TO KNOW COMMITTEE is a Hawai‘i non-profit corporation.
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2. Plaintiff LEAGUE OF WOMEN VOTERS OF HAWAI‘I is a Hawai‘i non-profit
corporation.
3. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS, HAWAII CHAPTER
is an Indiana not- for-profit corporation.
4. Plaintiff UNIVERSITY OF HAWAII CHAPTER OF THE SOCIETY OF
PROFESSIONAL JOURNALISTS is an Indiana not-for-profit corporation.
5. Plaintiff BIG ISLAND PRESS CLUB, INC., is a Hawai‘i non-profit corporation.
6. Plaintiff HAWAII POLITICAL REFORM PROJECT, dba Hawaii Pro-
Democracy Initiative, is a Hawai‘i non-profit corporation.
7. Plaintiff CITIZEN VOICE is a Hawai‘i non-profit corporation.
8. Plaintiff HONOLULU COMMUNITY MEDIA COUNCIL is a Hawai‘i nonprofit
corporation.
9. Defendant CITY COUNCIL, CITY AND COUNTY OF HONOLULU (the
“Council”) is the governmental body vested with the legislative power of the City and County of
Honolulu.
10. Defendant DONOVAN DELA CRUZ is Chairman of the Council.
11. Defendant TODD K. APO is a member of the Council.
12. Defendant BARBARA MARSHALL is a member of the Council.
13. Defendant CHARLES K. DJOU is a member of the Council.
14. Defendant ANN H. KOBAYASHI is a member of the Council.
15. Defendant ROD TAM is a member of the Council.
16. Defendant ROMY M. CACHOLA is a member of the Council.
17. Defendant GARY H. OKINO is a member of the Council.
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18. Defendant NESTOR R. GARCIA is a member of the Council.
JURISDICTION AND VENUE
19. This action is brought pursuant to Hawai‘i Revised Statutes (“HRS”) §§ 92-12(c)
and 632-1.
20. The Court has jurisdiction pursuant to HRS § 603-21.5.
21. Venue is proper in this Court pursuant to HRS § 603-36.
THE SUNSHINE LAW
22. Part I of HRS Chapter 92, as amended, known also as the “Sunshine Law,”
provides that “[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 closed pursuant
to [HRS] sections 92-4 and 92-5 . . . .” (hereinafter, the “Open Meeting Requirements ”). HRS
§ 92-3.
23. The Sunshine Law permits 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. HRS § 92-2.5(a).
24. The Sunshine law permits two members of a board, but less than the number of
members which would constitute a quorum for the board, to discuss priva tely the selection of the
board’s officers. HRS § 92-2.5(c).
25. The Sunshine Law prohibits the use of a “permitted interaction” identified in HRS
§ 92-2.5 to circumvent the spirit or requirements of the Open Meeting Requirement of the
Sunshine Law. HRS § 92-5(b).
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26. The Sunshine Law states that “[t]he provisions [of the Sunshine Law] requiring
open meetings shall be liberally construed.” HRS § 92-1(2).
27. The Sunshine Law states that “[t]he provisions [of the Sunshine Law] providing
for exceptions to the open meeting requirements shall be strictly construed against closed
meetings.” HRS § 92-1(3).
THE COUNCIL’S OBLIGATION TO COMPLY WITH THE SUNSHINE LAW
28. The Council has nine members. A majority of the entire membership of the
Council constitutes a quorum. See Charter of the City & County of Honolulu § 3-107 (Rev.
2000 ed.).
29. As a political subdivision of the State of Hawai‘i, the City must comply with the
Open Meeting Requirements. HRS § 92-71.
30. The Council is a “board” as defined by the Sunshine Law, HRS § 92-2.
31. Pursuant to the Sunshine Law, every meeting of the Council is required to be
open to the public and all persons shall be permitted to attend any meeting of the Council unless
otherwise provided in the Hawai‘i State Constitution or as closed pursuant to HRS §§ 92-4 and
92-5.
THE REORGANIZATION OF COUNCIL COMMITTEES
32. On July 7, 2005, Council members Donavan Dela Cruz, Ann Kobayashi, Rod
Tam, Barbara Marshall, Romy M. Cachola, Todd K. Apo, and Charles K. Djou jointly
introduced Resolution 05-243 relating to the reorganization of the Council’s standing
committees. See Ex. “1” attached hereto.
33. Resolution 05-243 was listed on the agenda of a Special Meeting of the Council
scheduled for July 13, 2005 at 11:30 a.m. See Ex. “2” attached hereto.
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34. On July 8, 2005, Honolulu news media reported that the Council was reorganizing
its standing committees. Based on statements attributed to Council members printed in news
media reports, it appeared that a majority of Council members had discussed the reorganization
and decided to vote to approve the reorganization proposed in Resolution 05-243.
35. The director of the Office of Information Practices (“OIP”) is tasked with
administration of the Sunshine Law. HRS § 92-1.5. OIP educates the public on the
requirements of the Sunshine Law, provides guidance on the interpretation of the Sunshine Law,
and accepts complaints of violations of the Sunshine Law. OIP may issue formal opinion letters
setting forth its interpretation of the Sunshine Law. The OIP’s interpretation of the Sunshine
Law is due deference by the courts.
36. On July 12, 2005, Leslie H. Kondo, the director of OIP, wrote a letter to
Chairman Dela Cruz informing him of the position of OIP that, assuming he had discussed the
reorganization of the Council’s standing committees in a series of one-on-one meetings with
more than three other Council members, he was in violation of the Sunshine Law. See Ex. “3”
attached hereto. In the letter, Mr. Kondo recommended that the Council cure or mitigate the
Sunshine Law violation by completely considering Resolution 05-243 at the Special Meeting of
the Council scheduled for July 13, 2005. Mr. Kondo explained in the letter that the Council
members should fully discuss any information or argument previously heard and considered in
decid ing whether to support or oppose the reorganization of the Council’s standing committees.
37. On July 13, 2005, the Council held its scheduled Special Meeting wherein it voted
5-2 in favor of adopting Resolution 05-243. The vote on Resolution 05-243 was taken without
prior discussion of the substance of the Resolution at the Special Meeting.
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38. On July 19, 2005, Chairman Dela Cruz wrote a letter to Leslie Kondo attaching a
memorandum prepared by the Office of Council Services that summarized authority for the
proposition that serial communications are not per se prohibited by “open meeting” laws.
Chairman Dela Cruz requested that OIP reconsider its position on the legality of serial
communications under Hawai‘i’s Sunshine Law. See Ex. “4” attached hereto.
39. On August 4, 2005, OIP issued Opinion Letter No. 05-015 wherein it advised
Chairman Dela Cruz opinion that HRS § 92-2.5(a) cannot be read to allow a board to use a series
of one-on-one discussions to discuss the same council business with more than one other Council
member outside of a “meeting” as defined in the Sunshine Law, and that use of § 92-2.5(a) to
conduct serial one-on-one communications clearly circumvents the spirit and requirements of the
Sunshine Law in direct violation of HRS 92-5(b). See Ex. “5” attached hereto.
40. Upon information and belief, the Council presently takes the position that the
practice of engaging in serial one-on-one communications among Council members regarding a
particular Council matter is not a violation of the Open Meeting Requirements of the Sunshine
Law.
COUNT I
VIOLATION OF SUNSHINE LAW
41. The foregoing paragraphs are hereby realleged and incorporated by reference.
42. Any person may bring an action to require compliance with or prevent violations
of the Sunshine Law. HRS § 92-12(c).
43. The reorganization of the Council’s standing committees is a matter over which
the Council has supervision, control, jurisdiction, or advisory power.
44. The reorganization of the Council’s standing committees is a matter that is
required to be decided at a “meeting” within the meaning of HRS § 92-2(3).
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45. Prior to the adoption of Resolution 05-243 by the Council on July 13, 2005, five
or more Council members participated in a series of private, one-on-one conversations regarding,
among other matters, the proposed reorganization of the Council’s standing committees; the
membership of the standing committees under the proposed reorganization; their support or
opposition to the proposed reorganization; and their willingness to introduce a resolution to
implement the proposed reorganization.
46. The Council members who participated in the serial conversations described in
paragraph 45 did not follow the procedures set forth in HRS § 92-4 for holding an executive
session of the Council prior to participating in the serial conversations.
47. As a result of the serial conversations described in paragraph 45, seven Council
members reached an agreement to introduce a resolution implementing the reorganization, which
ultimately became Resolution 05-243.
48. As a result of the serial conversations described in paragraph 45, seven Council
members reached an agreement, prior to the Special Meeting of July 13, 2005, to vote in favor of
a resolution implementing the reorganization, which ultimately became Resolution 05-243.
49. The discussion of the reorganization of the Council’s standing committees by
means of the serial conversations described in paragraph 45 constitutes a violation of the Open
Meeting Requirements of the Sunshine Law.
COUNT II
VOIDABILITY OF FINAL ACTION
50. The foregoing paragraphs are hereby realleged and incorporated by reference.
51. The Sunshine Law provides that “[a]ny final action taken in violation of [HRS]
sections 92-3 and 92-7 may be voidable upon proof of violation.” HRS § 92-11.
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52. The reorganization of the Council’s standing committees accomplished by
Resolution 05-243 is a “final action” within the meaning of the Sunshine Law.
53. OIP Opinion Letter No. 05-015 stated: “Serial communications could not be a
clearer example of the use of a permitted interaction to circumvent both the letter and the spirit
of the Sunshine Law in direct contravention to section 92-5(b).” Ex. “5” at 6.
54. The Council adopted Resolution 05-243 without mitigating the injury to the
public’s right to know caused by the serial conversations described in paragraph 45
notwithstanding that OIP Opinion Letter No. 05-105 advised the Council to engage in such
mitigation at the Council’s Special Meeting of July 13, 2005.
55. The Council adopted Resolution 05-243 using means that violate the Open
Meeting Requirement of the Sunshine Law.
56. Pursuant to HRS § 92-11, the adoption of Resolution 05-243 by the Council is
voidable.
COUNT III
ATTORNEY’S FEES AND COSTS
57. The foregoing paragraphs are hereby realleged and incorporated by reference.
58. The Sunshine Law provides that the court may order payment of reasonable
attorney fees and costs to the prevailing party in a suit brought under HRS § 92-12 for the
purpose of requiring compliance with or preventing violations of the Sunshine Law.
59. Plaintiffs are entitled to an award of reasonable attorney fees and costs they
incurred in this lawsuit.
PRAYER FOR RELIEF
FOR THE FOREGOING REASONS, Plaintiffs respectfully requests that this Court enter
judgment and provide the following relief:
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A. A declaratory judgment that Defendants’ use of a series of private, one-on-one
communications to reach consensus among a majority of Council members regarding
reorganization of the Council’s standing committees or any other matter over which the Council
has supervision, control, jurisdiction, or advisory power is a violation of HRS chapter 92.
B. A declaratory judgment that the Council’s adoption of Resolution 05-243 is void.
C. Plaintiff’s attorney’s fees and costs.
D. Retention of continuing jurisdiction to review Defendants’ compliance with all
judgments and orders entered herein.
E. Such other and further relief as this Court deems just and appropriate to effectuate
a complete resolution of the legal dispute between Plaintiffs and Defendants.
DATED: Honolulu, Hawaii, October 3, 2005.
CADES SCHUTTE LLP
JEFFREY S. PORTNOY
ELIJAH YIP
Attorneys for Plaintiffs
THE DISPUTE BETWEEN THE OFFICE OF INFORMATION PRACTICES AND CITY COUNCIL
8/05
August 4, 2005
VIA FACSIMILE NO. 523.4220
The Honorable Donovan M. Dela Cruz Chairman, City Council
City and County of Honolulu
580 S. King Street, 2nd Floor Honolulu, HI 96818
Re: Serial One-On-One Communications
Dear Council Chair Dela Cruz:
You have requested that we reconsider our opinion to you that part I of chapter 92. Hawaii Revised Statutes (the "Sunshine Law"). does not allow members of the City Council (the "Council") to discuss the same council business through a series of private one-on-one discussions. To clarify our interpretation of the statute for you and other boards that are subject to the Sunshine Law, we are responding to your letter by way of a formal opinion letter.
ISSUE. PRESENTED
Whether two council members who have discussed council business1 between themselves may discuss the same council business with other council members through a series of one-on-one discussions.
1 To describe the" discussions, deliberations and decisions that require compliance with the Sunshine Law, we coined the term "board business" (or, in this case, "council business'), which we define as those matters over which the board has supervision, control. jurisdiction, or advisory power that are currently before the board or that are reasonably anticipated to come before the board in the foreseeable future for discussion, deliberation, and action. See OIP Op. Ltr. No. 01-01. The discussions, deliberations, and decisions concerning "board business" must be conducted in a properly noticed meeting unless there is an exception in the statute that allows the board members to discuss. deliberate or decide the matter outside of a meeting.
BRIEF ANSWER
No. While the Sunshine Law allows two council members to discuss council business between themselves, the statute does not permit either of those council members to then discuss the same council business with any other council members outside of a properly noticed meeting. Such serial communication is contrary to the letter, the intent and the spirit of the statute.
FACTUAL BACKGROUND
0n July 7, 2005, seven members at the Council co-introduced Resolution 05248 (the "Resolution") for the purpose of reorganizing the council's standing committees, including' the chairmanships of certain committees.2 The Resolution listed each of the Council's standing committees and identified the proposed chairs, vice-chairs and members of those committees. The Resolution was included on the Council's agenda for its Special Meeting held on July 13, 2005. 3
On July 8, the Honolulu Star-Bulletin and the Honolulu Advertiser reported that the Council was reorganizing its committees. Based upon statements attributed to you and other council members, it appeared that, although the Resolution had yet to be considered at a public meeting, the reorganization of the committees had already been discussed by a majority of the Council and that a majority of the Council had already decided to vote to approve the Resolution. Consequently, we contacted your office for information about the Resolution, including whether it was council business. Among other things, we were advised by your office that you had discussed the matter in a series of one-an-one discussions with the majority of the other council members.'
2 In our letter to you dated July 12, 2005, we raised our concern about multiple council members introducing the Resolution. As we explained, at a minimum, it appear that, by asking other council members to co-introduce the Resolution, the Resolution's author essentially "po11ed" the other council members as to their preliminary inclination regarding the proposed reorganization of the committees. Because the Sunshine Law is intended to protect the public's ability to participate in and scrutinize the Council's business. Council members may not decide council business, even if the decision is preliminary and subject; to change, outside of a properly noticed meeting. See OIP Op. Ltr. No. 04-04. While that issue is beyond the scope of this letter, we strongly caution you that the practice of allowing multiple council members to introduce bills, resolutions and other business may, in certain circumstances, violate the Sunshine Law.
3 We understand that the Rules of the City Council, in effect at that time, required that the Council establish its committees. including the organization and membership of those committees, by resolution. Accordingly, the reorganization of the Council's committees, which had to be decided by the entire Council, Walt council business that could not be conducted outside of a properly noticed meeting unless allowed by law.
4 We have repeatedly requested information from you about your communications with other council members. including the number of council members that you spoke with through the serial discussions. Given that you have not responded to our request for additional information about your communications with other council members, we must assume that such one-on-one discussion did occur and, therefore, base this opinion on that assumption. We also note that you have advised us that you and the other council, members believe that serial one-on-one discussions are allowed under the Sunshine Law and inclined to continue discussing council business between yourselves through such private serial discussions.
OIP Op. Ltr. No. 05-015
By letter dated July 12, we advised you of our opinion that, because reorganization of the committees was council business, council members could discuss specifics about the reorganization only in a public meeting unless a permitted interaction or other statutory exception allowed the council members to discuss the matter privately. We noted that, although one of the permitted interactions allows two council members to privately discuss council business, those two council members cannot then discuss the same council business with any other council member outside of a meeting. To protect against the Council's subsequent actions being declared void and to cure the apparent violations, we recommended that the Council completely consider the Resolution at the meeting:
Because no firm decision appears to have been previously made, we believe that the Council may cure or mitigate the injury to the public's right to know in. this instance by completely considering the Resolution at the July 13 meeting. This means that you and the other council members should fully discuss any information or argument previously heard and considered in deciding whether to support or oppose the reorganization of the Council's standing committees. In our opinion, this would best allow the public to scrutinize and to participate in the Council's consideration of this decision in the manner in which the public is entitled under the Sunshine Law.
Emphasis added. The Council, however, elected to disregard our recommendation. Instead, at its Special Meeting on July 13, the Council approved the Resolution without any substantive discussion.5
At your request, we met with you, Corporation Counsel Carrie KS. Okinaga, First Deputy Corporation Counsel Donna M. Woo, Deputy Corporation Counsel Diane T. Kawauchi, and Diane E. Hosaka, director of the Office of Council Services, on July 14 to discuss, among other things, our opinion that the Sunshine Law does
5 Qn1y Council member Nester Garcia spoke regarding the Resolution. His statements, however, did not relate to the substance of the Resolution. Instead, Councilmember Garcia expressed his appreciation for being allowed to serve as chairman of the Committee on Transportation and as vice-chairman of the Committee on Budget and his eagerness to work with certain people as the new chair or the Committee on Parka. Rather than cure any earlier Sunshine Law violation, Counci1member Garcia's statements served to confirm that the reorganization of the council's committees had been discussed and deeided prior to the meeting.
OIP Op. Ltr. No. 05-015
The Honorable Donovan M. Dela Cruz August 4, 2005
Page 4
not allow serial one-on-one discussions between council members about the same council business. Subsequent to our meeting, we received correspondence from you, attaching a memorandum to you from the Office of Council Services, regarding the serial communication issue. You have also informed us that it is your position and the position of the other -council members that the Sunshine Law allows the Council to have these serial one-on-one discussions. As discussed in more detail below, we do not find either the arguments raised during our meeting or the memorandum persuasive.
DISCUSSION
The explicit language of our statute, both in its general provisions and its specific provisions, clear1y prohibits serial one-on-one discussions between council members about the same council business. The legislature expressly declared its policy and intent '"that the formation and conduct of public policy - the discussions, deliberations, decisions, and actions of government agencies - shall be conducted as openly as possible' in order to protect the people's right to know. . . ." Kaapu v. Aloha Tower Dev. Corp., 74 Haw. 365, 38S (1993) {quoting Haw. Rev. Stat. § 92-1 (l99Sť. To effectuate this policy and intent, the legislature directed that "[t)he provisions requiring open meetings shall be liberally construed" and "[t)he provisions providing for exceptions to the open meeting requirements shall be strictly construed against closed meetings." Haw. Rev. Stat. § 92-1.
Based upon the legislature's expressed policy and intent, we -- and the Department of the Attorney General (the "AG") before us -- have consistently opined that, under the Sunshine Law, board members may discuss board business only in a properly noticed public meeting unless the statute expressly allows otherwise. See Op. Atty Gen. No. 85-27 (even if quorum not present, committee may be prohibited from discussing official board business if notice requirements not met). Consistent with this interpretation, the legislature amended the Sunshine Law in 1996 to expressly allow certain "permitted interactions," i.e., instances when board members can discuss or consider board business outside of a meeting, without notice and without public participation. See Haw. Rev. Stat. § 92-2.5 (Supp. 2004).
In the preamble to the act that added the permitted interactions, the legislature recognized "that there are instances when it is appropriate for interactions between board members to occur" outside of a public meeting. Act 267, 18th Leg., 1996 Rev. Sess. The legislature thus stated that the purpose of the act was, in part, to specify those instances and occasions in which board members could discuss certain board matters "in a manner that does not undermine the essence of open government." Id. (Emphasis added).
The legislature accordingly added a permitted interaction specifying that "[t]wo members of a board may communicate or interact privately between themselves to gather information from each other about official board matters to
OIP OP. Ltr. No. 05-015
The Honorable Donovan M. Dela Cruz Ausust 4, 2005
enable them to perform their duties faithfu11y, as long as no commitment to vote is made or sought." Id. (Emphasis added). At the same time, however, the legislature specifically addressed any potential misuse by expressly prohibiting board members from using the permitted interactions to defeat the statute's purpose of protecting the public's right to know, adding "permitted interactions" to the list of methods under section 9.2-5(b) that shall not be used to circumvent either the requirements or the spirit of the Sunshine Law:
No chance meeting, permitted interaction, or electronic communication shall be used to circumvent the spirit or requirements of this part to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.
Haw. Rev. Stat. § 92-5(b) (emphasis added).
Indeed, the AG has until recently interpreted section 92-2.5(a) along with 92-5(b) to allow two board members to discuss board matters only in general, as opposed to specific, terms. The AG's interpretation, thus, would prohibit even two council members from discussing the committee reorganizations outside of a public meeting. Because we read section 92-2.5(a) to allow two board members to discuss official board business in specific terms, we sought an amendment to section 92-2.5(a) in this last legislative session in order to eliminate any confusion over the extent to which two board members could carry on a discussion regarding official board business. See Act 84, 28rd Leg., 2005 Reg. Sess. Specifically, the legislature passed the amendment to clarify that two board members may discuss specific, official board business as long as no decision is made. Section 92-2.5(8) was thus amended to read as follows:
Two members of a board may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as DO commitment to vote is made or sought and the two members do not constitute a quorum of their board.
Act 84, 23rd Leg., 2005 Reg. Sess. (Emphasis added). The amendment further emphasizes that the two board members cannot constitute a quorum of their board to again direct, consistent with the legislature's directive in section 92-5(b), that this permitted interaction not be used to circumvent the Sunshine Law's requirements that board business be deliberated and decided in a public meeting.
Notwithstanding the legislature's explicit directives and the AG and OIP's opinion construing section 92-2.5(a), the Council as decided to liberally construe the exception provided by section 92-2.5(a) in order to use it to allow council members to discuss the same council business between a majority of its members through a series of one-on-one discussions so long as there are only two council
OIP Op. Ltr. No. 05-015
The Honorable Donovan M. Dela Cruz August 4, 2005
Page 6
members present at anyone discussion. To interpret this exception to allow the council members to discuss, in a series of conversations, what they could not do together outside of a noticed public meeting renders the specific language of the provisions discussed above as well as the very essence of the Sunshine Law meaningless. See Jones (t. Tanzler, 238 So.2d 91, 98 (Fla. 1970) ("It is elementary that officials cannot do indirectly what they are prevented from doing directly"); State ex rel. Cincinnati Post v. City of Cincinnati. 668 N.E.2d 903,906 (Ohio 1996) ("To find . . . game of 'legislative musical chairs' is allowable under the Sunshine Law would be to ignore the legislative intent of the statute, disregard its evident purpose, and allow an absurd result"). Our statute's very purpose is to protect the public's right to be present during the Council's discussion of council business, with the exception of very specific instances provided, which the legislature expressly directed "shall be strictly construed against closed meetings." Haw. Rev. Stat. § 921. Serial communications could not be a clearer example of the use of a permitted interaction to circumvent both the letter and the spirit of the Sunshine Law in direct contravention to section 92-5(b).
Moreover, you have stated the Council's belief that, absent a commitment to vote, the public's interest is unharmed by the serial discussions. This contention misunderstands the nature of the harm that the Sunshine Law is meant to protect against. The harm is not the damage that may ultimately result from the actual decision made. Rather, the harm. is to the public's ability to witness and participate in the process: The express premise of the Sunshine Law is that "[o]pening- up the government processes to public scrutiny and participation is the only viable and reasonable method of protecting the public's interest." Haw. Rev. Stat. § 92-1. Accordingly, where the Council limits the public's right to scrutinize its actions, including its discussions, the public is inherently harmed.
In reorganizing its committees, the council members privately discussed council business and thereafter approved the Resolution without any substantive discussion or deliberation, giving the public no understanding of, for instance, the reasons for the reorganization. The Council thus simply "rubber stamped" a decision that had obviously been made prior to the meeting through private one-on-one discussions. It is our opinion that your discussions with other council members about the reorganization violated the Sunshine Law because it deprived the public of its right to hear the Council's discussion and, therefore, that the Council's approval of the Resolution and matters flowing therefrom are voidable. Haw. Rev. Stat. § 92-11.
While the specific issue here, namely the committee reorganizations, may rightly be a "housekeeping" matter of little public import, it is the broader issue that the council's actions raised that must be addressed. For example, under the Council's interpretation, council members could discuss increasing property taxes or the location of Oahu's landfill outside of a meeting -- without public notice, without public participation in the discussion and without minutes reflecting the substance
OIP Open Ltr. No. 05-015
The Honorable Donovan M. Dela Cruz August 4, 2005
Page 7
of the discussion - and, as you did with the Resolution, could then decide the matter at a Council meeting without any discussion.6 While you claim that such a scenario is unrealistic, we emphasize that the law does not provide boards discretion on this matter. Where an exception does not exist to discuss council business outside of a meeting" the Sunshine Law is absolute. The public has a right to participate and to hear all of the Council's discussions, deliberations and actions taken in a properly noticed meeting.
Accordingly, it is our duty to advise the Council that its asserted interpretation of the Sunshine Law to allow council members to discuss council business through a series of discussions outside of a meeting as long as no more than two members are present at each discussion is contrary to the letter, intent and spirit of the Sunshine Law. See Haw. Rev. Stat. § 92F-42(18) (Supp. 2004). As explained above, such an interpretation flies in the face of the express language as well as the legislature's explicit policy and intent of the Sunshine Law and would render much of the law's principal provisions meaningless.
Because the language of our statute is clear, cited cases in the Office of Council Services' memorandum to you provide no guidance in interpreting our statute. We note in passing, however, that the cases are legally distinguishable and represent a minority opinion among the jurisdictions.7 The majority of jurisdictions in fact reject serial communications as being counter to the very purpose of their respective open meetings laws. See, e.g., Booth Newspapers v. Wyoming City Council. 425 N.W.2d 695, 700-01 (Mich. App. 1988) luncheon meeting with less
6 In rejecting the argument that Ca1ifornia's public meetings law applied only to "formal" meetings, the California appellate court noted:
An informal conference or caucus permits crystalization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpub1ic premeeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well the ultimate step of official action, can au open meeting regulation frustrate these evasive devices.
Sacramento Newspaper Guild (Ca1. App. 1968). v. Sacramento County Board of Supervisors. 69 Ca!. Rptr. 480, 487
.7 In fact. three of the four cases cit8d in the memorandum appear to support our finding that the series of one-on-one discussions that you had with other council members is prohibited by the statute. The court held that serial discussions did not violate the open meeting laws in question because there was no evidence that the boards had intended to avoid the public meeting process through the serial discussions. Moberg v. Indep. Sch. Dist. No 281. 836 N.W.2d. 510, 518 (MUm. 1988); Hispanic Educ. Comm. v. Houston Indep Sch. Dist. 886 F. Supp. 608, 610 (S.D. Houston 1994); Harris County Emergency SErv. Dist. #1 v. Harris Countv Emergency Corps. 999 S.W.2d 168,169 (Ta. App. 1999). Implicit in those opinions, thus, is the prohibition of seria1 discussions designed to circumvent the public'. right to participate in the board's discussions, deliberations and decisions.
OIP Op. Ltr. No. 05-015
The Honorable Donovan M. Dela Cruz August 4, 2005
Page 8
than a quorum to get a "non-binding sense of direction- from other council members "circumvent[ed] the legislative principles as well as the overall objective of the [Open Meetings Act] to promote openness and accountability in government. It); Jones v. Tanzler, 288 So.2d at 93 ("statute should not be circumvented by small individual gatherings wherein public officials. . . may reach decisions in private on matters which may foreseeably affect the public."); State ex reI. Cincinnati Post v. City of Cincinnati, 668 N.E.2d 908; Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Ca1. Rptr. 480 (CaI. App. 1968); Okla. Op. Atty. Gen. 81-69 (Apr. 2,1981) ("Permitting a single member of the governing body to obtain a consensus or vote of that body by privately meeting, alone with each member, would be to condone decision-making by public bodies in secret, which is the very evil against which the Open Meeting Act is directed."); Ky. Op. Atty. Gen. 00-OMD-63 (2000) (series of less than a quorum meetings about public business "deprived [the public] of an opportunity to observe their discussion of these matters in contravention of the principle, codified at KRS 61.800, that _e formation of public policy is public business and shall not be conducted in secret. . . . "').
CONCLUSION
Given the explicit language and purpose of our statute, we believe that section 92-2.5(a) statute cannot be read to allow a board to use a series of one-on-one discussions to discuss the same council business with more than one other council member outside of a meeting. Whether intended or' not, use of section 922.5(a) to conduct serial one-an-one communications clearly circumvents the spirit and requirements of the Sunshine Law in direct violation of section 92-5(b).
Leslie H. Kondo Director
July 22,2005
Leslie H. Kondo, Esq.
Office of Information Practices Office of the Lieutenant Governor State of Hawaii
250 South Hotel Street
Suite 107
Honolulu, Hawaii 96813
Dear Mr. Kondo:
Re: Reorganization of the City Council Committees
We have been asked to respond to your memorandum dated July 12, 2005, to City Council Chair Donovan Dela Cruz, which was copied to each of the eight other members of the City Council. Council Chair Dela Cruz also asked that we thank you for meeting with him, members of his staff and our office on July 14, 2005, to discuss your communication so that we all may better understand your positions on the issues and on proposed ameliorative action that may be considered to address these issues with respect to the Council's introduction and consideration of Resolution No. 05-243 Relating to Council Standing Committees, we understand your position is that the reorganization of the Council Standing Committees constitutes "council business" because action thereon is required by adoption of a resolution by a majority of the Councilmembers. We clarified in our meeting with you that the requirement of action of the Council by resolution was by virtue
of Council Rule only, not by charter or other law, and the Rule was subject to change by majority action of the Council. As an aside, it was explained to you that the resolution requirement was instituted in an effort to conduct such Council action in a public meeting. Nevertheless, we understand your position to be that if there were no resolution requirement for the establishment of Council standing committees, then the provisions of the Sunshine Law would not apply to discussions between Councilmembers regarding the Council organization of standing committees. Although we explored with you other alternatives available to the Council to address Sunshine Law requirements in light of the desire for organizational discussion of the Council, it appeared to us that to ensure that your concerns were addressed, the Council would be best advised to delete from its Rules the resolution requirement for establishment of Council standing committees. Accordingly this communication is to advise you that action will be introduced in the Council to revise its Rules to delete this resolution requirement.
Also, it was clear from our discussion at the meeting that we have a difference of opinion with you on a number of issues raised in your July 12,2005 memorandum. Specifically with respect to your position that alleged Sunshine Law violations in the Council adoption of its resolution on Council standing committees would invalidate the actions of those standing committees and taint all actions of the Council. We sought to clarify for you that Council action be it by resolution or ordinance, requires action of the full Council. In the instance of a resolution (other than one authorizing condemnation) only one reading before the full Council is required and in the instance of an ordinance, three readings of the bill for an ordinance are required before the full Council. Accordingly, action of the full Council is required on all resolutions and bills, and no action of a Council standing committee is of any legal effect without full Council action thereon. We therefore are at odds with your position with respect to the invalidity of full Council action by virtue of any irregularity of a Council standing committee.
Other issues raised in your communication remain under our consideration.
Very truly yours,
DIANE T. KAWAUCHI
Deputy Corporation Counsel
APPROVED:
CARRIE K. S. OKINAGA Corporation Counsel