Recently, State Auditor Les Kondo shocked the public and some Honolulu Authority for Rapid Transportation (HART) Board members when he charged, at a HART board meeting, that HART employees had been required to record all interviews with State Auditor personnel and then submit the recordings to management to be transcribed. That’s “interference with the audit process,” he said.
What happened next, however, was even more shocking, at least to an untrained observer like me.
A city attorney then pops up and says, in effect, “We’ve received testimony, but it doesn’t relate to any agenda item, so the Board can’t discuss it.”
“I’d like to ask a follow-up question,” one Board member states.
The city attorney then repeated his previous statement. Meaning, of course, that the Board member couldn’t ask her question.
The Board, clearly flummoxed by this development, decided it couldn’t do anything about the issue that had surfaced, and moved on.
Odd as they may seem, the city attorney’s comments weren’t wrong. Our Sunshine Law (Hawaii Revised Statutes chapter 92) governs meetings of most boards, commissions, and county councils. (The State Legislature is allowed to follow different procedures.) That law says that a public board generally isn’t supposed to be working on items that aren’t on the published agenda. This is to protect those in the public who didn’t come to the hearing or submit testimony but would have testified, attended, or both if they knew this particular subject would be discussed. So, to be completely proper, the Board isn’t supposed to do anything about an item that isn’t on the agenda. It might want to put the item on the agenda for the next meeting.
But what is to be done if the matter brought up is something that needs expedited consideration? The HART Board meets once or twice a month. Auditor personnel are typically in the field for a limited time, one or two weeks perhaps. If you were the HART Board member who was cut off by the City attorney in the dialogue above and you wanted to discuss and possibly do something about the State Auditor’s concerns, is there anything you could have done at the meeting?
How about, “Mr. Chair, I move to amend the agenda to add a business item relating to the concerns expressed by the State Auditor in his testimony”?
In most organizations, it is proper to move to amend the agenda. The motion typically requires a two-thirds vote to pass.
The Sunshine Law does recognize that things may come up in the meeting that aren’t accounted for in the agenda and that may need prompt attention. So, section 92-7(d) of the law now says: “No board shall change the agenda, once filed, by adding items thereto without a two-thirds recorded vote of all members to which the board is entitled; provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons. Items of reasonably major importance not decided at a scheduled meeting shall be considered only at a meeting continued to a reasonable day and time.” Thus, the agenda can be changed to add an item that either is not of major importance or that will not affect a significant number of people.
A development such as this one, which is more concerned with the internal operations of HART as opposed to something like a decision to change the rail route which certainly would affect many people, could have been dealt with using a motion to amend the agenda.
Hopefully, next time those on boards, commissions, or other bodies subject to the Sunshine Law will have this tool ready to tackle items of concern that pop up unexpectedly. It beats having the meeting result in a train wreck!
Tom Yamachika is the President of the Tax Foundation of Hawaii, a private, nonprofit educational organization dedicated to informing the taxpaying public about the finances of our state and local governments in Hawaii. Tom is also a tax attorney in solo practice and has been since early 2013. Prior to 2013, he was with the accounting firm Accuity LLP, which was formed in 2006 from the Honolulu office of Coopers & Lybrand (which later became PricewaterhouseCoopers). Before that, he served as an Administrative Rules Specialist in the State of Hawaii Department of Taxation from 1994 to 1996, where he drafted rules, interpretive releases, and legislation on several different state taxes. Prior to that, he practiced litigation and tax law with Cades Schutte Fleming & Wright in Honolulu.
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