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Sunshine Memo 12-13
Sunshine Law Complaints About
Testimony, Minutes, and Agenda
Requester asked for an investigation into whether
the Ewa Neighborhood Board (ENB or Board) violated the Sunshine
Law by 1) refusing to allow testimony at two meetings; 2) limiting
the public to only one question of persons presenting reports, limiting
testimony to only one minute for some testifiers while allowing
others to testify for longer, and in some cases, interrupting testifiers
before one minute was up; 3) refusing to add a Board member’s
requested reference into the minutes; and 4) refusing to place a
Board member’s item on the ENB agenda. The Requester was an
Ewa Neighborhood Board member at the time of the meetings that form
the bases for the complaints.
Given the changes in ENB membership, the Neighborhood
Commission’s Decision and Order relating to these and similar
issues, and the ENB’s subsequent commitment to ameliorate
the issues raised, OIP found detailed factual findings unnecessary
to address the concerns raised by Requester. Instead, OIP offered
this general guidance regarding the issues raised by the Requester.
(1) A board must allow any interested person to
testify on any agenda item at every meeting. Hawaii Revised Statutes
(HRS) § 92-3 (1993) (“boards shall also afford interested
persons an opportunity to present oral testimony on any agenda
item”). While a board member may testify as a member of
the public, the Sunshine Law does not regulate how board members
conduct their own discussion and deliberation of agenda items
or whether the public may question other testifiers during the
meeting. OIP Op. Ltr. No. 06-01.
(2) Reasonable time limits on testimony by the public
may be imposed if a rule setting such limits has been previously
adopted by a board at a meeting, but time limits must be fairly
applied. OIP Op. Ltr. No. 02-02. A notice of time limits placed
at the top of the meeting agenda does not substitute for a board’s
adoption of a rule setting time limits, so a board should not
seek to enforce time limits that are not based on a written rule
adopted by the board at a previous meeting. And where a board
has previously established time limits, those time limits must
be applied in an evenhanded manner. Applying time limits only
to some testifiers and not others is an improper restriction of
testimony under the Sunshine Law.
(3) A request by a board member to add other information,
such as a YouTube video reference, into the minutes must be accommodated.
HRS § 92-9(a)(4)(1993). However, OIP has interpreted this
to apply only to a request made during the same meeting in which
the information is sought to be included in that meeting’s
minutes. When the request is made at a meeting and the information
was included in the minutes of that meeting, there is no Sunshine
Law violation.
(4) And lastly, the Sunshine Law requires
an agenda to provide adequate notice but does not address the
board’s process in determining matters to be placed on an
agenda. Since the Sunshine Law is not implicated in this case,
Requester’s complaint about the agenda’s composition
is outside of OIP’s jurisdiction. The requester may instead
address this complaint to the Neighborhood Commission Office.
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