Civil Beat Law Ctr. for the Pub. Interest, Inc. v. City of Honolulu

• Citation: 445 P.3d 47
• Decision Date: 27 June 2019
• Docket Number: SCAP-17-0000899
• Parties: CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC., Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU and Honolulu Police Commission, Defendants-Appellees.
• Court: Hawaii Supreme Court

445 P.3d 47

CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, INC., Plaintiff-Appellant,

v.CITY AND COUNTY OF HONOLULU and Honolulu Police Commission, Defendants-Appellees.

SCAP-17-0000899

Supreme Court of Hawai‘i.

JUNE 27, 2019

Robert Brian Black for appellant

Duane W.H. Pang, Honolulu, (Jessica Y.K. Wong with him on the brief) for appellees

RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND CIRCUIT JUDGE EDDINS, IN PLACE OF NAKAYAMA, J., RECUSED

I. INTRODUCTION

AMENDED OPINION OF THE COURT BY RECKTENWALD, C.J.¹

The issues in this case arise from three closed meetings the Honolulu Police Commission held in January 2017 concerning then-Chief of Police Louis Kealoha, who had received notice that he was the target of a federal criminal investigation. The Police Commission cited the need to protect Kealoha's privacy and to confer with its attorney when closing the meetings to the public. At the end of the third meeting, the Commission approved an agreement for Kealoha's retirement.

Several days later, Plaintiff-Appellant Civil Beat Law Center for the Public Interest, Inc. (Civil Beat) filed a complaint against the Honolulu Police Commission and the City and County of Honolulu (collectively, the Appellees) in the Circuit Court of the First Circuit (circuit court). Civil Beat pled six counts, seeking declaratory rulings interpreting Hawai‘i's Sunshine Law, and finding violations of the Sunshine Law. In addition to declaratory relief, Civil Beat sought an order requiring the Appellees to attend Sunshine Law training, releasing the Commission's executive meeting minutes for the three closed meetings, and invalidating the Commission's retirement agreement with Kealoha. Civil Beat did not join Kealoha as a party to the action.

The Appellees filed a motion to dismiss, which the circuit court granted on all counts. Civil Beat appealed to the Intermediate Court of Appeals (ICA), and we accepted transfer of this case to resolve matters of first impression concerning the meaning and scope of the Sunshine Law's open meeting requirement, personnel-privacy exception, and attorney-client exception, and the extent to which closed meetings must conform with these exceptions.

We hold that the circuit court erred in dismissing Civil Beat's complaint. The Sunshine Law does not require that meetings related to personnel matters be closed to the public; rather, that decision is discretionary, provided that certain statutory requirements are met. Nor does the Sunshine Law subject board members to criminal penalties for holding an open meeting. We resolve these and other questions of law in this appeal, and remand Civil Beat's claims regarding alleged violations of the Sunshine Law, with instructions to order that Kealoha be made a party, or, if he cannot be so joined, the court shall determine whether in equity and good conscience the action should proceed in any form among Civil Beat and the Appellees, or whether it must be dismissed.

II. BACKGROUND

A. Factual Background

Because we are reviewing the circuit court's order on a motion to dismiss, our review is "strictly limited to the allegations of the complaint, and we must deem those allegations to be true." In re Estate of Rogers, 103 Hawai‘i 275, 280-81, 81 P.3d 1190, 1195-96 (2003) (quoting Blair v. Ing, 95 Hawai‘i 247, 252, 21 P.3d 452, 457 (2001) ).

1. The Target Letter

In December 2016, Kealoha received an FBI Target Letter from the U.S. Attorney's Office notifying him that he was the target of a federal grand jury investigation. In response to the Target Letter, Kealoha voluntarily placed himself on temporary restricted duty. The same day, the Chair of the Police Commission acknowledged the Target Letter and confirmed that Kealoha placed himself on leave. The Chair said that the Commission would consider the issue at its next meeting on January 4, 2017.

2. The Commission Discusses the "Status of the Chief of Police" in Executive Session

The Commission's January 4, 2017, meeting agenda indicated that the "Status of the Chief of Police" would be discussed in an executive session, closed to the public, pursuant to HRS § 92-5(a)(2) and (4), respectively, for the Commission to consider personnel actions "where consideration of matters affecting privacy will be involved" and to consult with the Commission's attorneys. During the public portion of the Commission's January 4 meeting, the Chair stated that "because of Hawai‘i Revised Statute on personnel matters, we have to discuss [the Police Chief] in executive session."

The Commission continued the January 4 meeting regarding the "Status of the Chief of Police" to January 6, 2017, and on that day met solely in executive session. After the January 6 executive session, the Commission publicly announced that it had come to "an agreement in principle on [the Chief of Police's] retirement."

3. The City Council is Denied a Briefing on the Retirement Agreement

On January 12, 2017, the Honolulu City Council requested a briefing from the Commission on the retirement agreement. The next day, the Chair of the Commission declined the Council's request, stating that according to the Sunshine Law, "only the individual [employee] concerned may request an open meeting" when personnel matters involving the hire, evaluation, dismissal, or discipline of that employee are discussed. The Chair stated that "without the consent of Chief Kealoha, the Commission cannot discuss this personnel matter in open session." The Chair indicated that the Commission members may be subject to criminal penalties if personnel matters were discussed in open session.²

4. The Commission Approves a Retirement Agreement with Kealoha in Executive Session

The Commission's agenda for its next meeting on January 18, 2017 stated again that the "Status of the Chief of Police" would be discussed in executive session pursuant to HRS § 92-5(a)(2) and (4) for the Commission to consider personnel actions "where consideration of matters affecting privacy will be involved" and to consult with the Commission's attorneys. At the January 18 meeting, the Commission voted in executive session to approve a retirement agreement with Kealoha.

B. Circuit Court Proceedings

1. Civil Beat's Complaint

On January 26, 2017, Civil Beat filed a complaint in circuit court against the Appellees.³ Civil Beat sought declaratory and injunctive relief, including voiding final action taken by the Commission. Civil Beat asserted six claims:

Count 1: Sunshine Law does not require closed meetings;

Count 2: Board members cannot be criminally prosecuted for holding an open Sunshine Law meeting;

Count 3: Not all personnel actions may be discussed in closed session;

Count 4: Personnel evaluations of a police chief must be discussed in open session;

Count 5: The City and the Commission violated the Sunshine Law on January 4 and 6, 2017.

Count 6: The City and the Commission violated the Sunshine Law on January 18, 2017.

a. Counts 1 and 2

In Counts 1 and 2, Civil Beat sought declaratory relief interpreting the Sunshine Law's open meeting requirement, HRS § 92-3, and criminal penalties provision, HRS § 92-13.

In Count 1, Civil Beat alleged that the Commission misinterpreted the Sunshine Law's open meeting requirement and that Commission members incorrectly believed that they were required to enter into an executive session to discuss the Chief of Police. Civil Beat asserted that when voting to enter executive session, members of the Commission "did not believe that they had the option to vote for an open session—stating that ‘without the consent of Chief Kealoha, the Commission cannot discuss this personnel matter in open session.’ " Civil Beat sought an order "declaring that the Sunshine Law does not require boards to enter into executive session[.]"

In Count 2, Civil Beat asserted that the Commission misinterpreted the Sunshine Law's criminal penalties provision because Commission members "believed that they were subject to criminal prosecution if they discussed the matter in open session." Civil Beat sought "an order declaring that the Sunshine Law does not subject Sunshine board members to criminal prosecution under HRS § 92-13 for holding an open meeting[.]"

b. Counts 3 and 4

In Counts 3 and 4, Civil Beat sought declaratory relief interpreting the Sunshine Law's personnel-privacy exception, HRS § 92-5(a)(2), and applying this interpretation to require the "Status of the Chief of Police" to be discussed in open meetings in all circumstances as a matter of law.

In Count 3, Civil Beat alleged that Commission members misinterpreted the personnel-privacy exception to permit an executive session "for any discussion that involved ‘the hire, evaluation, dismissal, or discipline of an officer or employee or of charges brought against the officer or employee’ ... regardless whether ‘consideration of matters affecting privacy will be involved.’ " Civil Beat contended that HRS § 92-5(a)(2) "requires an analysis of whether the personnel discussion involves private matters and a balancing of the privacy interests against the public interests in disclosure."

In Count 4, Civil Beat applied this balancing test to argue that, as a matter of law, the "Status of the Chief of Police" cannot be discussed in executive session due to the public's compelling interest in monitoring the person serving as Chief of Police. Civil Beat argued that "[p]rivacy is not an absolute when it concerns conduct of government officials" and noted that the Chief of Police, "unlike most government employees," performs "a critical function to our community that impacts thousands of people daily." Civil Beat thus argued that the public has a compelling interest "in monitoring both the Chief of Police and the Commission," and that this "outweighs any privacy interests the Chief of Police may have" in discussions regarding the "Status" of this position. "To prevent future violations of the Sunshine Law," Civil Beat requested "an order declaring that discussion of the ‘Status of the Chief of...