Opinion Letter No. 05-15
August 4, 2005
Serial One-On-One Communications
A City Council member may not use the “permitted
interaction” under section 92-2.5(a) of the Sunshine Law
(which allows two members to discuss “board business”
with each other outside of an open meeting as long as no commitment
to vote is made or sought) to discuss Council business with another
Council member, then use the same permitted interaction to discuss
the same Council business with other Council members through a
series of private one-on-one discussions.
Notwithstanding the explicit statutory language
that prohibits a permitted interaction from being used to circumvent
the spirit or requirements of the Sunshine Law, the Council argued
that, as long as they did not seek or make a commitment to vote,
the public is unharmed by Council members discussing Council business
through a series of private one-on-one discussions. Under the
Council’s interpretation, Council members could privately
discuss, for instance, raising property taxes — without
public notice, without public testimony and without minutes reflecting
the Council members’ discussion — and could decide
the matter at a Council meeting without any discussion.
The Sunshine Law, however, is intended to “[o]pen
up the governmental processes to public scrutiny and participation”
and requires that the council’s discussions, deliberations,
decisions and actions be conducted as openly as possible. Haw.
Rev. Stat. § 92-1 (1993).
Consistent with the legislative intent, unless an
exception or other statutory provision expressly allows the Council
members to discuss Council business outside of a properly noticed
meeting, the public has an absolute right to participate in the
Council’s meeting and to hear all of the Council’s
discussions, deliberations, decisions and actions. Accordingly,
OIP advised the Council that the series of one-on-one discussions
between more than two Council members about the same Council business
was contrary to and violated the Sunshine Law.