Report Title:

Relating to Public Agency Meetings.

Description:

Specifies that only groups expressly created by the State Constitution or a statute, charter, executive order, or ordinance, to function in a parliamentarian fashion, and which have delegated governmental authority over specific matters of public business constitute "boards" for purposes of the state Sunshine Law.

THE SENATE

S.B. NO.

2836

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO PUBLIC AGENCY MEETINGS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. In 1996, the Hawaii supreme court issued a memorandum opinion in the case of Green Sand Community Ass'n v. Hayward, No. 18138 (December 11, 1996) ("Green Sand"). In Green Sand, the supreme court analyzed the definition of the term "board" in section 92-2(1), Hawaii Revised Statutes, as having five distinctive parts and proceeded to apply them very broadly to conclude, among other things, that persons who merely attended a community meeting called by the department of business, economic development, and tourism to hear presentations on a proposed spaceport at Ka`u, constituted a board for purposes of the sunshine law. More recently, the office of information practices in its opinion letter no. 01-01 (April 9, 2001), relying heavily on Green Sand, concluded that vision teams assembled by the mayor of the city and county of Honolulu to secure public input on certain capital improvement issues, were "boards" within the meaning of section 92-2(1), Hawaii Revised Statutes, and thus were required to comply with the provisions of the sunshine law, part I of chapter 92, Hawaii Revised Statutes, including meeting, notice, and minute-keeping requirements.

The purpose of this Act is to clarify that not all of the many groups organized or assembled to conduct or to assist public officials in conducting the official business of the State or counties, are "boards" under the sunshine law, part I of chapter 92. It is the legislature's intent that only groups expressly created by the State Constitution or a statute, charter, executive order, or ordinance, to function in a parliamentarian fashion, and to have delegated governmental authority over specific matters of public business, albeit that authority may be only to advise ultimate decision makers, constitute "boards" under the sunshine law, part I of chapter 92.

To avoid further confusion about whether a group is or is not a "board" under the sunshine law, this Act amends the definition of "board" to provide the following three indicators for determining whether a group is a "board": a group is a "board" if (1) it is referred to by name in a provision of law or an executive order; (2) the provision of law or the executive order fixes the number of members of the group so that it can function in a parliamentary fashion; and (3) the provision of law or the executive order specifies what public business the group is responsible for handling.

Most state laws that create group entities that the legislature expects to function as "boards" under the sunshine law already fix the number of members the group is to have so that it may make binding decisions, and describe the matters for which the group is responsible. To the extent that existing laws do not include one or more of these provisions for an entity that the legislature intended to subject to the sunshine law, those laws too must be amended.

There are also many occasions when, as part of the performance of their duties and responsibilities, public officials or entities may consider it advisable to assemble groups of staff from other governmental agencies, experts, or private citizens to solicit information or assistance, or to receive their counsel on a particular matter. Unless the legislature or a county council enacts a law or ordinance to expressly make these groups "boards," or the governor issues an executive order to this effect, the legislature does not intend for these groups to be "boards" within the meaning of section 92-2 as amended by this act.

This Act also clarifies that the term "board" as used in the sunshine law includes entities that are created by charter and ordinance.

SECTION 2. Chapter 92, Hawaii Revised Statutes, is amended by adding to part I a new section to be appropriately designated and to read as follows:

"92- Committees of boards; applicability. The provisions of this part shall apply to the committees and any other subsidiary entity of a board that consists of two or more members of that board, notwithstanding the definition of "board" in section 92-2 and even though a committee of a board is only a subsidiary and not an entity separate from the board that formed it."

SECTION 3. Section 92-2, Hawaii Revised Statutes, is amended by amending the definition of "board" to read as follows:

"(1) "Board" means any [agency,] group entity of the State or its political subdivisions, whether referred to as a board, commission, authority, [or] council, task force, committee [of the State or its political subdivisions], or other name, which is expressly created by the state constitution[,] or a statute, [rule, or] charter, executive order, or ordinance, to have [supervision, control, jurisdiction or advisory power over] a specified number of members who are to take action on specific matters [and which is required to conduct meetings and to take official actions]."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST