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Sunshine Memo 12-16
Executive Session on
Adding Item to Agenda
Requester asked for an investigation into whether
the Kauai County Council (Council) violated the Sunshine Law by
holding an executive session to discuss a motion to add an item
to the agenda for its meeting held on June 3, 2009 (the Meeting).
OIP found that in appropriate circumstances, a board may go into
an unanticipated executive session with its attorney to discuss
its ability to add an item to its agenda, so long as the board does
not discuss the underlying item proposed to be added. See
HRS § 92-5(a)(4) (Supp. 2011). However, given the length of
the executive session and the fact that the County Attorney publicly
announced his advice on whether the proposed item could be added
to the agenda by vote, OIP infers that the discussion was not limited
to advice on that legal question. Because the Council failed to
rebut that inference by explaining what discussion occurred during
the executive session and why it properly fell within an executive
session purpose, and failed to provide any evidence or arguments
to meet its burden to justify the executive session, OIP could not
find that the executive session was allowed under the Sunshine Law.
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