F26-02: Communications About Board Business Outside of a Meeting

OIP Opinion Ltr. No. F26-02, January 29, 2026

While a meeting of the Hawaiian Homes Commission (Commission) was in recess on January 16, 2024, the Chair and two members of the Commission continued discussing a topic the Commission had been discussing during the meeting.  The Commission then scheduled a “special meeting” on January 26, 2024, to discuss the topic.  Before the special meeting, the Chair sent a text message to another member asking that the member support the action, and then sent a voicemail asking the member to discuss the action.  At the special meeting, at the advice of the Commission’s deputy attorney general, the Commission informed the public about these discussions to mitigate any potential harm to the public.  

OIP found that the Chair and two board members discussed board business outside of a meeting during the recess in the January 16, 2024, meeting, and concluded that this discussion violated the Sunshine Law.  OIP also found that the Chair’s text message to another member discussed board business and sought a commitment to vote, and concluded that the text message violated the Sunshine Law.  OIP found that the Chair’s voicemail to another member did not seek a commitment to vote and did not involve any other members, and concluded that the voicemail did not violate the Sunshine Law because it fell under the two-person permitted interaction found in section 92-2.5(a), Hawaii Revised Statutes.

OIP Op. Ltr. No. F26-02 Full Text 

(EXCERPT)

FACTS

I. The Discussion Between the Chair and Two Other Commission Members on January 16, 2024

On January 16, 2024, the Commission held a meeting (January 16 Meeting) and voted on Item C-1, “Approval to Acquire The Courtyards at Waipouli, Kapaa, Kauai, TMK (4) 4-3-01:14 and 21.” The vote on Item C-1 failed. The Commission thereafter took a recess from 1:40 p.m. to 2:20 p.m. It is undisputed that during that recess, Chairperson Kali Watson (Chair) continued to discuss Item C-1 with Commissioner Randy Awo (Awo) and Commissioner Dennis Neves (Neves) (January 16 Discussion) as they weighed opposing arguments and explored other options to acquire the Courtyards at Waipouli, including the possibility of a rent-to-own project involving that property. Neves and Awo later contacted the Commission’s Deputy Attorney General (AG) to inform the AG about their discussion with the Chair.

On January 20, 2024, four days after their conversation, the Commission posted notice of a Special Meeting scheduled for January 26, 2024 (January 26 Meeting), with the following agenda:

I. ORDER OF BUSINESS

A. Roll Call

B. Approval of Agenda

C. Public Testimony on Agendized Items- see information below

II. ITEM FOR DECISION MAKING

Office of the Chairman

C-1 Approval to enter into Option to Purchase agreement with K D WAIPOULI LLC, a Hawaii limited liability company, for 258,929 square feet of land (Lots 17-D-1 approx. 254,263 sf and 17-D-2 approx. 4,666 sf) located at 401 Papaloa Rd, Kapaa, Hawaii 96746 and known as the Courtyards at Waipouli -- TMK Nos. (4) 4-3-001-014 and 021 -- and improvements located thereupon and Convert to a Low-Income Housing Tax Credit Rent With Option to Purchase Project for the DHHL Kauai Island Waitlist

III. ANNOUNCEMENTS AND ADJOURNMENT

A. Next Regular HHC Meeting –February 20 & 21, 2024 (Tue. & Wed.) Kapolei, Oʻahu

B. Adjournment

Item II.C-1 of the January 26 Meeting’s agenda also sought approval to acquire the Courtyards at Waipouli, the same property that the Commission voted against acquiring at the January 16 Meeting, but the partnership with Lunalilo Trust was removed from the proposal.

II. The Chair’s Text to Neves on January 24, 2024

On January 24, 2024, outside of a meeting, the Chair texted Neves about the upcoming January 26 Meeting, and asked for Neves’s support. The text message (January 24 Text) stated:

Want you to be supportive of Friday’s action. Very complicated but a way to get the poor guys off the waitlist into affordable units that they will own. It’s a chance for 82 families on your island. Only other option currently available is Hanapepe which has limited demand. Kapaa is a choice area and a great neighborhood with tremendous amenities including easy access to the beach. Can’t beat the sales price. Will make homestead awards up front with successorship rights also available. Sorry for the rush but [Low-income Housing Tax Credit] and [Hawaii Housing Finance and Development Corporation] application is only available once a year and only in February. Plus seller will sell the property to mainlanders to the detriment of DHHL beneficiaries. Talk to you tomorrow. Mahalo Kali.

Neves did not respond.

III. The Chair’s Voicemail to Neves

On January 25, 2024, the Chair left Neves a voicemail (January 25 Voicemail) requesting a call to discuss the Courtyards at Waipouli acquisition. The voicemail stated:

Hey Dennis, Kali. Give me a call when you get time. I wanted to go over that Waipouli project. Got any questions on the approach also wanted to give you an update. We’re gonna be eliminating that 15year wait. We’ve got the lawyers and got some legislation going into eliminate that so that’s actually good news. We can make awards immediately anyway, give me a call. I’d like to answer any questions you have. OK, talk to you soon, bye.

The Commission’s letter to OIP dated April 8, 2024 (Response) explained that Neves did not return the Chair’s call. Instead, he sought advice from the AG as to whether the voicemail and text message violated the Sunshine Law. The Response also explained that the AG advised that the voicemail likely did not violate the Sunshine Law, but the text message could be construed as seeking a commitment to vote and would likely violate the Sunshine Law.1

IV. The Commission Informed the Public of the Communications Outside of Meetings

A few minutes after the January 26 Meeting started, Awo disclosed that he had a conversation with Neves and the Chair about Item II.C-1 and asked the AG about the legal ramifications of their actions. The Commission moved into executive session under section 92-5(a)(4), HRS, to consult with the AG about whether the January 16 Discussion violated the Sunshine Law and, if so, whether that violation disqualified them from voting on Item II.C-1, which was the same topic they had discussed during the January 16 Meeting recess. Although the January 26 Meeting agenda did not specifically list the potential Sunshine Law violation as a topic, it included Item II.C-1, which was the same topic discussed by the Chair, Awo, and Neves during the January 16 recess.

After the executive session, the Commission re-convened its open meeting and Awo summarized his January 16 discussion with the Chair and Neves, and explained that he sought advice from the AG about this conversation. Neves then read the January 24 Text out loud and stated he sought the AG’s advice about this text.

On January 30, 2024, Requester filed an appeal asking whether: (1) the January 16 Discussion violated the Sunshine Law; (2) the Chair’s text to Neves violated the Sunshine Law; (3) the Commission’s vote on agenda item II.C-1 at the January 26 Meeting should be voided or stayed; and (4) the Chair should be “ordered to complete mandatory Sunshine Law training.”2

read … FULL REPORT

FOOTNOTES:

1 The explanation of the AG’s advice to Neves was not marked as confidential.

2 Requester did not assert that the Commission improperly entered executive session. See HRS §§ 92-4 (allowing executive sessions and setting out procedures), 92-5 (enumerating the purposes for which a board may hold an executive session). Requester stated her intention to “request UIPA access to the recordings and transcripts from the Executive Session,” but she did not submit a written record request at the time of this appeal, nor was one included in the record. Under the Uniform Information Practices Act (Modified), chapter 92F, HRS (UIPA), an agency’s disclosure obligations arise only “upon request.” HRS § 92F-11(b). Additionally, section 92-9(b), HRS, requires boards to publish minutes of open meetings within forty days of the meeting regardless of whether the board has received a record request, but does not require boards to publish the minutes of executive meetings so long as their publication would defeat the lawful purpose of the executive meetings. HRS § 92-9(b) (Supp. 2024). Therefore, under the Sunshine Law the question of whether executive session minutes must be disclosed under section 92-9(b), HRS, arises only after someone has requested them from the board. Therefore, without a record request, this appeal will not address whether the Commission must disclose its executive session minutes under the UIPA.