An article in Civil Beat last week by reporter Kirsten Downey highlighted important questions about how Hawaii’s sunshine law (Chapter 92 HRS) is being interpreted by the Honolulu Neighborhood Commission, which administers Honolulu’s system of neighborhood boards (“Hawaii Open Meetings Law Leaves Some Neighborhood Boards Befuddled”).

One issue raised in the story caught my attention. According to the story, several people said they had been told that members of the public are not allowed to contact board members directly, but only through the chair of each board.

Another recent dispute over permissible communication involved the Makiki/Lower Punchbowl/Tantalus Neighborhood Board. In recent years, board members and residents said they were told that only the board chairman at the time, John Steelquist, was authorized to talk to reporters or to the public.

“There was a vagueness as to whether we could speak representing ourselves as members of the board” to the public or reporters, said the current chair, Ian Ross.

Another board member, Nathan Char, said he was actively discouraged from speaking with the public or reporters.

Dave Watase, an activist who opposes the Ala Wai flood control project, said he was told by two Makiki board members that he was not allowed to contact individual board members, only Steelquist. He said he was told he would be reported to the Neighborhood Commission, presumably for disciplinary action, if he sent any further emails.

The story did not identify the specific provision of the sunshine law that is being interpreted in this manner, so I went looking in the booklet that provides advice to members of the various boards.

The booklet, “Oahu’s Neighborhood Board System Member Guidebook,” makes clear that board members are not prohibited from speaking with members of the public about board business.

The guidebook provides, in part:

Can board members discuss board business with non-board members outside of a meeting?

Generally, yes. The Sunshine Law only applies to boards and their discussions, deliberations, decisions, and actions. Because the Sunshine Law does not apply to non-board members, a board member may discuss board business with non-board members outside of a meeting.

The Guidebook does go on to caution that there are circumstances in which public discussions could cross a legal line.

For example, the Guidebook advises that “four county council members cannot participate in a discussion at a neighborhood board meeting about a matter that is council business, even if the council members do not discuss the matter between themselves.”

But it appears this reference is to the sunshine law as it stood prior to a 2012 amendment.

Here is the provision that was added to the sunshine law in 2012, which changed the way such situations are viewed.

Two or more members of a board, but less than the number of members which would constitute a quorum for the board, may attend an informational meeting or presentation on matters relating to official board business, including a meeting of another entity, legislative hearing, convention, seminar, or community meeting; provided that the meeting or presentation is not specifically and exclusively organized for or directed toward members of the board. The board members in attendance may participate in discussions, including discussions among themselves; provided that the discussions occur during and as part of the informational meeting or presentation; and provided further that no commitment relating to a vote on the matter is made or sought.

As a result, OIP determined in a 2015 opinion that three members of the Maui County Council were allowed to attend a informational meeting of the Kula Community Association although matters relevant to the council were discussed.

There are perhaps other provisions that might apply to neighborhood board procedures.

Neighborhood Board rules provide that each board chair is the authorized spokesperson to speak on behalf of the board. But this does not appear to prohibit individual board members from speaking to reporters or to the public about their own individual views on board matters.

And the allegation that a member of the public was told they could not communicate directly with individual board members is quite disturbing, as there does not appear to be any relevant provision of the sunshine law to support that view. And, of course, prohibiting community members from communicating with their elected board representatives is the opposite of the board’s primary purpose of encouraging participation in government decisions.

In any case, Civil Beat deserves credit for identifying these areas of confusion. Now the Neighborhood Commission needs to clarify their position ASAP.