HomeMy WebLinkAbout2016-02-10 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS
MINUTES—REGULAR SESSION
Wednesday, February 10, 2016
10:04 a.m. to 2:25 p.m.
Hawai`i County Building
25 Aupuni Street
County Council Chambers
Hilo, Hawaii 96720
Members and Staff Present:
Kenneth Goodenow, Vice-Chair
Douglass Adams, Member
Rick Robinson, Member
J Yoshimoto, Deputy Corporation Counsel
Gary Murai, Special Corporation Counsel
Emily V. Hirayama, Secretary
1. CALL TO ORDER
Mr. Goodenow called the meeting to order at 10:04 a.m. Before preceding to statements
from the public on agenda items, I would like to welcome our newest member. On
behalf of Chair Kahakalau who could not be here unfortunately, please welcome Rick
Robinson. I know you've had a lot of experience on boards and so we're glad to have
you.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS
Mr. Goodenow: I just liked to remind testifiers to please state their name and its
three minutes per item for time to testify. If the staff...we could
start taking the testimony.
Ms. Hirayama: We don't have any in Hilo.
Mr. Goodenow: Anyone in Waimea? Kohala?
Ms. Sweeney: Chair. This is Kohala. I'd like to introduce Lanric Hyland. He'll
be representing himself and Doug Pointer who is sitting to his
right. And I would ask for the Chairs indulgence. Mr. Hyland got
out of the hospital yesterday and due to his weak condition, he
asked if after his public statement you could please let him speak
on item 5(e). So that he can leave without us having a medical
incident.
Mr. Goodenow: I think that there's also under correspondence a letter from him. I
think we'll take that up right away and that may also touch on the
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other petition on the agenda. So we'll try and get you out of here
as soon as possible Mr. Hyland.
Mr. Hyland: Thank you.
Ms. Sweeney: Thank you Chair. Alright did you want him to go ahead and
speak?
Mr. Goodenow: Yes.
Ms. Sweeney: Please state your name for the record.
Mr. Hyland: My name is Lanric Hyland and I'm here representing both myself
and Mr. Doug Pointer who's sitting to my right. When you come
to the next part of the agenda, number four, Correspondence. I
want you to know what I'm talking about in my letter to you. Mr.
Robinson welcome aboard, your new duty station and thank you
very much for volunteering your time to do that to be there. This
is the next three statements are made in regard to Rule 4. 2, the
third party declaration that I'm asking you folks to do. And I'm
asking given there are two new members if the two of you feel that
it's appropriate that you try and convince one of the three older
members to make a motion for reconsideration. So that my three
petitions can be heard, reconsidered and given the input from you
and the other new member. So basically, what number four is
talking about is, given the provision of Hawai`i County Charter,
Section 5.14 which specifically provides for a temporary vacancy
in the office of the Mayor. Is it ethical for the Mayor to continue
in office while he is under active criminal investigation by the
Hawai`i Attorney General? That's the question I did not ask of
you before and was not considered. Current County policy places
County employees on paid administrative leave while they're
under criminal investigation. And what is the Ethic Boards
declaratory judgment on this subject in general? As well as in
specific as to the Mayor, is he to be treated differently than any
other employees who are put on paid leave when their under
criminal investigation. Especially since on public television, he
has confessed to the unethical behavior or admitted I should say to
the unethical behavior. The second aspect of this involves Ms.
Sako. I went back and I reviewed the State of Hawai`i purchasing
card agreement program and procedures manual and I don't know
if it was brought to the Boards attention or if the Board read that
manual last time it considered this. It says that the PVS Net
Administrator and that's what Ms. Sako was. She said she was the
Net Administrator for that program. The PVS Net Administrator
shall immediately notify the purchase card administrator, if any of
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the following occurs and depending on the occurrence shall
immediately close the account. And subsection two of that section
says that any of the following reasons which may be subject, which
may also subject the card holder to disciplinary action. And
subsection "a" is the P-card is used for personal or unauthorized
purposes. Well we already know the Mayor uses P-card for
unauthorized purposes and that means that Ms. Sako should
immediately have closed the account.
Ms. Sweeney: You need to summarize.
Mr. Hyland: Pardon.
Ms. Sweeney: You need to summarize your comments.
Mr. Hyland: And the third party, the other third party is regard to Mr. Alameda
and I would point out that last time he was there and the Board
didn't even ask him when it came to question of who did he
supervise. You didn't ask him, did you hire or fire these people.
Did you do the performance evaluation on these people? They just
accepted his hearsay and he couldn't even name or didn't name the
four people and neither did the lady from Human Services. So I
would ask that you consider what I've just said when you consider
what you're gonna do about item number 4. Thank you.
Ms. Sweeney: Okay. Can you summarize. Do you want him to move on Chair to
5e?
Mr. Adams: Chair. If we're going to change our agenda items, I think we need
to vote to do this.
Mr. Goodenow: I'm sorry, I thought he wanted to present more testimony on
another item. He can testify on each item, but we're still on public
testimony. We cannot...is there anyone else who wants to testify?
Okay seeing none, then we're gonna finish the public testimony.
We are now on approval of the minutes.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF JULY 8,
SEPTEMBER 9, 2015 AND FEBRUARY 10, 2016.
Mr. Goodenow: There's already a pending motion to approve the July 8 minutes
and it was continued because there was discussion about having a
procedure whereby we send our comments. And I noticed that the
minutes in my packet didn't take into account any of the ones that I
sent. I don't know if anyone else sent. Just mine. I don't think
they were incorporated. I'm gonna ask that we continue to the next
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meeting. I thought, my understanding was, that either we were
agendize it or you just come up with a revised version for us to
vote on. Any questions on that?
Mr. Adams: I think we'd probably have to vote on the continuation, but other
than that.
Mr. Goodenow: Right. I agree with that, I just need a motion to continue.
Motion and Vote: Mr. Adams moved to continue the approval of the July 8 minutes to the
next meeting. Mr. Robinson seconded the motion. All members voted aye.
Mr. Goodenow: Could I have a motion for the minutes of September 9 to approve.
Mr. Adams: I move to approve the minutes of September 9, 2015.
Mr. Robinson: I haven't had a chance to review these yet. I just got them this
morning. So I'd feel odd voting to approve them if I haven't had a
chance to review them.
Mr. Goodenow: I don't believe there's a rule that says that the Chair can't second
for discussion purposes so I will make the second. Any
discussion?
Mr. Adams: There are a few items that I have found that I think will need to be
upgraded. The major one in the minutes that we received if could
just point out. Is that we actually have the section regarding our
discussion of Petition 2015-13. It was found in two different
places. So one was on page 33 and then another was found on
page 42. So depending on where it was in the course of the
conversation. We'll need to put it there and take it out of the other
place.
Mr. Goodenow: Any other discussion? I'd like to note that maybe we should
follow the same procedure as I kind of thought this is how we
were gonna do it. We get the version, send it back for an amended
version to be presented which we vote on. So perhaps if I could
have another motion to continue, we could follow that same
procedure.
Motion and Vote: Mr. Adams moved to continue the approval of the September 9, 2015 the
next meeting. Mr. Robinson seconded the motion. All members voted aye.
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4. CORRESPONDENCE
a. Letter from Lanric Hyland dated Feb 4, 2016, regarding Petition No's: 2015-
03, 2015-07 and 2015-09.
Mr. Goodenow: That's brings us to item four, Correspondence, letter from Lanric
Hyland dated February 04, 2016 regarding Petition No's 2015-03,
2015-07 and 2015-09. Because it's a communication, could I have
a motion to file?
Mr. Robinson: I motion to file.
Mr. Adams: I second.
Mr. Goodenow: Any discussion? Mr. Murai? He's our Corporation Counsel
Officer for this matter. So just to start the discussion, we do have a
pending motion to reconsider the matter for the Mayor right. But
these other two matters have been voted on. I don't know. Could
you provide your comments to where we are on these? Mr.
Hyland's request.
Mr. Murai: Good morning Mr. Chair. Special Deputy Corporation Counsel
Gary Murai. I'm sitting in just for the matter of 2015-03 I believe
and that's a matter regarding Mr. Hyland's petition against Mayor
Kenoi. Mr. Chair, I do note that...well first of all...I don't know if
Mr. Hyland has received it yet, but upon receipt of this letter that
was emailed. I notified Mr. Hyland by letter that this would be
placed on the agenda as a communication item and it would not be
a substantive hearing on the merits of his motion. I also notified
Mr. Hyland that generally speaking, in all cases if he's going to
bring any king of action before the Board that he needs to notify
the respondent. In this case, Mr. Kenoi and his attorneys. I would
recommend to the Board that Mr. Hyland be instructed to file a
motion that the Board can calendar and provide notice to the
respondent. Now, I don't know whether the Board wants to get
into the substance of this today.
Mr. Goodenow: Sorry. Correct me if I'm wrong, but at the last meeting right. Mr.
Hyland had fallen or something and someone made the
representation that you weren't able to be there. And so we
continued this matter until the call of the Chair when you were
ready to proceed. Is that...that's what the minutes kind of reflect.
Mr. Adams: If I may. Actually, on the matter that we're talking about is the
communication and none of these items were considered at the last
meeting. Right. So 2015-03, that continuation was an issue, it was
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on the agenda. We decided to continue that conversation, but this
issue, his request for a motion to reconsideration is not one of
those items that was at the last meeting. So I'm a little troubled
that we're actually continuing to have a conversation on
correspondence. Actually. If these things are going to be
agendized at the next meeting, then that's the proper venue for us
to talk about these in substance.
Mr. Goodenow: But basically, I mean Mr. Hyland cannot make a motion to
reconsider for; I mean it would be one of us could make a motion
to reconsider.
Mr. Murai: Under a very limited or narrow circumstances.
Mr. Goodenow: Right. If we met all the procedural requirements we could, but he
can't. As far as the Kenoi matter, right I mean the attorneys aren't
here. Of course it's not on our agenda so we shouldn't talk about
it. I agree with Mr. Adams about that, but I just wanted to make it
clear. That we were waiting for Mr. Hyland to notify us that we
should put it on, to request that we re-agendize that letter.
Mr. Murai: Mr. Chair, my recollection is that there were pending matters. Mr.
Hyland was not able to attend that meeting because of an injury.
So what the Board did was continued that matter until it was
moved on and Mr. Hyland was instructed to notify us when he was
well enough to resume the petition as a whole. The Board would
then put it back on the calendar, provide notice to other side and
anyways that's where we left off.
Mr. Goodenow: Thank you. That makes sense to me. Mr. Hyland did you get that.
I mean. Did you understand?
Mr. Hyland: I did. I do hear that and I'm sorry I wasn't left with the impression
that I had an obligation. I don't believe I was notified that I had an
obligation to do anything or least if I was, I apologize again
because I don't recall it. But I'm more than, I can live with that
very easily. I'm very happy to do that. I can submit as just as the
item 03. I can submit a formal, written motion for reconsideration
with all the specific why I would like it to be reconsidered. But
basically, my appeal today was motioning for reconsideration on
all three of them simply because you now have two new voices
that can participate in that conversation. I'll certainly as the item
number three, now that I understand that the balls in my court as it
were. I'll certainly write a formal letter to the Board. Hopefully in
the next few days.
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•
Mr. Goodenow: Thank you. Any other discussion?
Motion and Vote: Mr. Robinson moved to file correspondence. Mr. Adams seconded the
motion. All members voted aye.
5. NEW BUSINESS
Mr. Goodenow: Sorry Mr. Hyland. You want to... which item did you want us to
take out of order?
Mr. Hyland: Number E Edward sir.
Mr. Goodenow: E Edward. 2015-19. Is there a motion to amend the agenda
by taking that matter out of order?
Motion and Vote: Mr. Adams moved to amend the agenda and take item e out of order.
Mr. Robinson seconded the motion. All members said aye.
e. Petition No. 2015-19: Initial review of petition alleging that County Officers
or employees were in violation of Sections 2-80, 2-83 and 2.91 of the Code of
Ethics because it is not acceptable that County employees involved with the
courts should exhibit anything but the highest standards of ethical conduct.
Mr. Murai: Sorry Mr. Chair. Sorry to interrupt you, but I think one of the first
things we need to do is and I'm not sure if you were gonna do it.
Forgive me, but I believe I see Ms. Parker in the gallery and Ms.
Parker has the right to request a closed hearing. So I think it's
probably the first thing we should ask her whether she wants a
closed hearing or open public hearing.
Mr. Goodenow: I don't have to read the whole petition then right? I can just say
Petition 2015-19? That's acceptable?
Mr. Murai: Well Ms. Parker's here and Mr. Hyland.
Mr. Goodenow: Alright I won't read the whole thing then. So Ms. Parker you
heard that you have a right to a closed hearing. Do you wish to
invoke that right?
Ms. Parker: Yes I do.
Mr. Goodenow: Okay. I guess I need a motion to go into closed session for I guess
the purpose of adjudicatory function.
Mr. Murai: Also, we need to close the hearing room in Kohala. So if staff
would clear the room except for Mr. Hyland.
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Mr. Goodenow: Can we have a motion for a close session?
Ms. Sweeney: We will clear the room and close the doors.
Mr. Murai: Ms. Parker is entitled for a(inaudible).
Mr. Adams: Actually. According to our rules, we do need to vote on it. It's not
a...she has the opportunity to request, but we have the obligation
to vote on it.
Mr. Goodenow: So you're making a motion?
Mr. Adams: I am.
Motion and Vote: Mr. Adams moved to go into closed session for the purpose of exercising
the Board's adjudicatory functions. Mr. Robinson seconded the motion. All members
voted aye.
10:25 a.m. The Board took a brief recess to clear the room.
* * * * *
10:27 a.m. The Board returned from brief recess to begin closed session on Petition No.
2015-19.
10:45 a.m. The Board returned from closed session and took a brief recess.
* * * * *
10:47 a.m. The Board returned from recess to continue with petitions.
a. Petition No. 2015-15: Initial review of petition alleging that County
Officers or employees were in violation of the Rules of Practice and
Procedures of the Board of Ethics Section 1.5 (Disqualification of
Board members, Bias, or prejudice) when they reviewed and ruled on
a petition that could be a conflict of interest.
Mr. Yoshimoto: Mr. Chairman because this involves yourself and there's not
enough members to make a decision on this matter. We have
really...because we only have three members here, we need three
members to make a decision valid. So we really have no choice
but to do continue this to the next meeting.
Mr. Adams: Is it even...no one can make a motion...we don't have enough to
vote on it. It's just gonna end up not being considered here and
considered and put onto the next month's agenda.
Mr. Yoshimoto: Right.
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Mr. Adams: Okay.
Mr. Goodenow: Thank you for that clarification. So continued by operation of rule
I guess then we'll move on to the next matter.
Mr. Yoshimoto: Before we go on, we have Mr. Revell here so I don't know if he
wanted to make any statements on that issue. This is yours right
Mr. Revell. Right. Because he's here, he made the time to come
here I think we should at least hear him. The only problem is...
well go ahead. I'm sorry Mr. Chairman go ahead.
Mr. Goodenow: It could be like public statements so I see no problem listening.
We can't really discuss anything. So would you like to make a
comment Mr. Revell?
Mr. Revell: Sure. Thanks for being here gentlemen. I'd really appreciate it if
at the next meeting, this has been put off for four months now. And
you know it takes my time and effort to take out of my day cause
the first quarter of the year especially I'm traveling a lot for trade
shows for my business and out of town. So it really throws a
monkey wrench in things. I'm here today, I was hoping I could
carry on with this. If we could please make sure the next hearing
that it's confirmed before I show up that there's enough Board
members here so we can carry on.
Mr. Goodenow; That sounds like a reasonable request. Thank you. Okay moving
on then to...
Mr. Adams: I just noticed our Counsel... are you? Okay.
Mr. Yoshimoto: Excuse Mr. Chairman. Mr. Revell is requesting that his other
matter also be brought forward.
Mr. Goodenow: Oh of course. Can we have a motion to take Petition No. 2015-10
out of order?
Motion and Vote: Mr. Robinson moved to take Petition No. 2015-10 out of order. Mr.
Adams seconded the motion. All members said aye.
a. Petition No. 2015-10: Review of petition alleging that a County Officer or
employee is in violation of Sections 2-83 (Fair Treatment), 2-84 (Conflict of
Interest), 2-91.3 (Lobbyist Registration), and 2-91.4 (Gifts) of the Code of
Ethics because he was influenced and accepted gifts by an unregistered
lobbyist organization. [Continued from last meeting]
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Mr. Goodenow: Mr. Yoshimoto maybe the same situation applies here?
Mr. Yoshimoto: Well Mr. Chairman this is a little different. The respondent in this
matter Council Chairman Kanuha is not here. He informed our
office that he's out of state on the mainland and is not able to
attend today's meeting and request that this matter be continued to
the next regularly scheduled meeting.
Mr. Goodenow: Like the other situation, I can't really vote on this matter.
Mr. Yoshimoto: Well your issue as to the conflict has not been resolved yet.
Mr. Goodenow: I would ask to abstain.
Mr. Yoshimoto: Right. If you want to abstain then that would kick us back to the
previous situation right if you don't want to vote then...we can't..
Mr. Goodenow: I think to be safe, we should just do it that way. This can be put on
the next agenda. We'll be sure to check that we have enough.
Mr. Revell: Right on. Thank you.
Mr. Yoshimoto: You want to say anything or no? Okay.
Mr. Revell: Thank you very much.
Mr. Goodenow: I guess we don't have to vote on that.
b. Petition No. 2015-16: Request for informal advisory opinion from a County
Officer or employee, to determine whether he can make his rental unit
available to the HUD Section 8 program even though he is an inspector for
Housing Quality Standards (HQS) in the HUD Section 8 program. [Closed
hearing requested]
Mr. Goodenow: So back to Petition No. 2015-16. This is...there's a request for a
closed hearing. Is the petitioner here? Okay. So if there's a
closed hearing we'd need a motion to hold a closed hearing for the
purpose of exercising our adjudicatory functions pursuant to
County Code 2-86.
Motion and Vote: Mr. Adams moved to take Petition No. 2015-16 into closed hearing. Mr.
Robinson seconded the motion. All members said aye.
10:52 a.m. The Board took a brief recess.
* * * * *
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10:54 a.m. The Board returned from recess, entered into closed hearing and disconnect
from Kohala.
11:14 a.m. The Board returned from closed session and entered into a brief recess.
11:15 a.m. The Board returned from a brief recess and re-connected with Kohala.
c. Petition No. 2015-17: Initial review of petition alleging that a Board member
had a conflict of interest when she participated in hearing the initial review
of Petition No. 2015-10, as they both sat together on the Hawaii Island
Burial Council.
Mr. Goodenow: This involves our Chair and while I suppose I would not have to
recuse myself, we could proceed, but the fact that she's not here.
I don't know if we have a motion to continue or Mr. Yoshimoto?
Mr. Yoshimoto: Yes. Mr. Chairman our office received an email from Mr.
Anderson whose the petitioner indicating that he has a medical
injury and he's not able to attend today. He's requesting a
continuance for both matters. Both petitions 17 and 18.
Mr. Adams: First of all I'd like to move that we consolidate 2015-17 and
2015-18 for the purposes of a follow on motion.
Mr. Goodenow: Okay. Any objections? Unanimous consent.
Motion and Vote: Mr. Adams moved that we continue the matter of 2015-17 and 2015-18
to our next meeting. Mr. Robinson seconded the motion. All members voted aye.
Mr. Goodenow: Seeing no opposition said matter are continued to the next meeting.
d. Petition No. 2015-18: Initial review of petition alleging that a Board member
had a conflict of interest and should have recused himself from hearing
Petition No. 2015-10, as the Board member's wife works for Council
Services.
Petition No. 2015-18 moved to the next meeting as stated in the prior motion.
f. Petition No. 2016-01: Request for an informal advisory opinion from a
County Officer or employee, to determine if his actions are permissible
pursuant to Section 2-84 of the Hawaii County Code of Ethics.
Mr. Goodenow: Council member Paleka?
Mr. Yoshimoto: There he is. He's coming.
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Mr. Goodenow: Okay Mr. Paleka we are on your item on the agenda. Would care
to make any opening statements?
Mr. Paleka: Good morning Chair. Daniel Paleka, Councilman, District 5.
Good morning Board members. Yes this matter was brought for
an advisory opinion. I'd like to thank you very much for the
opportunity to be heard and provide facts and information relevant
to the petition. For informal advisory opinion number 2016-01
presently before you. The specific section of the Code of Ethics in
question which I believe was 2-84. Conflicts of interest or those
deemed applicable by or if the Board deems other provision
applicable I'm certainly open.
Mr. Adams: Council member if I may.
Mr. Paleka; Yes sir.
Mr. Adams: Mr. Chair. We do not have Kohala.
Mr. Goodenow: We need to take a recess. You want an open hearing is that
correct?
Mr. Paleka: Sure.
Mr. Yoshimoto: We need to stop until they come back online.
11:20 a.m. The Board took a brief recess to get Kohala back online.
11:24 a.m. The Board returned from recess.
Mr. Goodenow: Would you like to continue?
Mr. Paleka: Yes I'd like to continue Chair. So in regards to the specific section
that I sited in the petition, it was 2-84 (Conflicts of Interest). 2-
84(c) Conflicts of interest for those deemed applicable by the
Board. Corporation Counsel had in their advisement to myself,
brought up Section 2-91.4 under gift. And I'll explain in a little bit
more as why I do not believe that's relevant. So getting to the
factual basis, the circumstances which give rise to this petition
stem from a recommendation from Corporation Counsel and the
three documents provided to the Board in our petition. Resolution
268-15, draft 3 as adopted by the Council on November 3, 2015.
A copy of the 2016 Stepping Up Initiative, National Summit
Application and I believe the copies provided to the Board only
have two pages. I do have a...I think accurate copy of the entire
application that I would like to submit to the Board. And it does
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provide a little bit more detail criteria and basis of selection. And
the third document, is a copy of District 5 contingency relief fund
resolution 375-16 submitted January 12, 2016 and adopted
February 3, 2016. Resolution 268-15 was introduced by Council
member Greggor Ilagan. I did vote in favor of the resolution, was
subsequently adopted. The decision and the disposition of our
stepping up application is expected February 19, 2016. But may
be delayed due to the extension of the application deadline. And I
believe the date of application is on the application, the copy of the
application itself. Just a little background, the stepping up
initiative is a program administered and supported by NACo and
the Psychiatric Association. I guess the basic question is if the
travel stipend that would be offered to our....if our application is
accepted and selected. Would that fall under the definition of a
gift? When I do look at the Ethics Code under Section 2-82
definitions. Unfortunately, there is no definition of a gift,but
there is a section that relates to gifts in 2-91.4. Okay. Another
question I would have is if the travel stipend falls under definition
of a gift, then I'm kind of questioning on travel accord.
Transportation compensation received by Council members who
participate in NACo events, then those would also...I'm kind of
concerned cause those would also be construed to. I would maybe
perceive this as gifts. Furthermore, contingency funds resolution
375-16 was introduce and approved subsequent or after the
Stepping Up Initiative Summit Application was submitted. Not to
mention the motivation to participate in the Stepping Up Initiative
is not predicated on the travel stipend, but rather to reduce the
incidents of recidivism of persons with mental illness within our
correctional facilities. The travel stipend would be granted to the
team and not solely for the introducer of the resolution. Therefore,
my belief that this section regarding conflicts of interest would
seem more applicable. The purpose of the travel is to attend the
summit and receive training on proper implementation of the
initiative in our County. If you have any questions, let me add if
the Board would rather entertain the premise that the gift section 2-
91.4 is more also relevant than I would like to amend the petition
to also consider that section if that is possible. I'm not aware of
the procedure. The application process considers the answers to
specific questions and is a competitive process, although
preference is given to applicants who have adopted resolutions
supporting the Stepping Up Initiative. In terms of influence, if
we're going about influence of why we're doing this initiative.
What has influence me to support and participate in this initiative
is my years of service with the State of Hawai`i Department of
Public Safety. And my experience first-hand in the incarceration
of individuals suffering from mental illness who in my belief
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should have been referred to mental health or Department of
Health. And not on a trip to Washington D.C. If you've been on
travel to Washington D.C., a two day turnaround is not a gift. To
me that's kind of like torture, but anyways trying to make a little
light of the situation. Proposed solutions. Should the Board find
that the travel stipend gained thru a successful application
selection, I would offer that I just don't take the stipend and not go.
And not accept for myself, but the rest of the team go, because I
believe this is an initiative that we really have to and it's resolved
that we should pursue this initiative. So if any questions or if I can
clarify anything.
Mr. Goodenow: Question anyone?
Mr. Adams: Thanks for coming today and to address this.
Mr. Paleka: My pleasure.
Mr. Adams: For me, it matters just on your last point. According to our Code,
actually anybody who's an employee or officer in the County our
Code would apply to. So if it somebody that was coming from the
Department of Housing in the County or if it was somebody
coming from Department of Public Safety, Police Department, Fire
Department they all would fall underneath this not just a
Councilman so. When you looked at in your petition you refer
specifically to 2-84. Was there some area specifically in 2-84 that
you wanted us to look at? That you saw this referring to?
Mr. Paleka: No officer or employee shall assist any person or business or act in
a representative capacity before a County agency for a contingent
compensation in any transaction involving the County.
Mr. Adams: And so I'm missing is...who would be acting in a representative
capacity before a County agency?
Mr. Paleka: I guess myself in terms of the CRF for going home which is
subsequent to the submission of the application and not mentioned
in the application as criteria. So that kind of.
Mr. Adams: Yeah okay.
Mr. Paleka: If I'm trying to fit unethical violation somewhere...
Mr. Adams: As I take a look at this, I'll talk about my, will talk about this in
discussion. Is there any potential for the Stepping Up Initiatives or
the entities, organizations that are hosting that Stepping Up
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Initiative to receive a grant from the County at some point in the
future? Is this one of those...If I take a look at what is going to
happen at this event, you have a bunch of Counties coming
together. Their bringing their teams, the teams are supposed to be
composed of three to five folks and it's supposed to be folks that
are decision makers within the County. And then they're going to
come and they're going to talk about trying to solve this issue of
having mentally ill folks incarcerated and what to do about that. Is
there anything that follows that other than this is an opportunity for
Counties to share best practices, figure out what they're going to
do in the future? Is there opportunity where there's a situation that
you're aware off and I mean it now at this point that your aware of
that some of the host are going to them, come to the County with
you know programs, training programs or initiatives on which the
County then would spend money. Are you aware of anything like
that?
Mr. Paleka: Normally, the purpose of these type of initiatives is to seek...these
initiatives usually try to get federal funding so it's the other way,
were we're trying to get funding from the Federal and State levels
and not were the County is. Other than our membership that we
paid to NACo as members. I wouldn't see any other compensation
that the County's giving to NACo and the Psychiatric Association
that is hosting this event.
Mr. Adams: Okay. Great thank you.
Mr. Paleka: You're welcome.
Mr. Adams: Again you did talk about this, the idea that attending this on 2-
91.4, the section of the Code on gifts were no officer or employee
shall accept any gift whether in the form of travel under
circumstances in which it could be reasonably inferred that the gift
is intended to influence the officer's or employee's official duties
or is intended to reward. So in this case, we're not looking... you
don't see this as a reward, it think you talked about that and the
idea that this travel expense would influence you in the
performance of your official duties. What's you comment on that?
Mr. Paleka: Certainly has no bearing on my influence of why I'm doing this
Stepping Up Initiative.
Mr. Adams: Right. Can you see because the phrase is reasonably be inferred,
it's not whether you would actually be influenced, it's whether or
not others could see that you're being influenced by that.
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Mr. Paleka: I can understand for perception, but the problem with that is that
the initiating resolution was not introduced by myself I just voted
on, so if that could be inferred.
Mr. Adams: Right, right. Thank you.
Mr. Paleka: You're welcome.
Mr. Robinson: Just as someone who's traveled far too much for business, those
short turnarounds are no fun at all. You usually don't get to sleep
until you get back home because it's not much fun. You asked for
an informal advisory opinion.
Mr. Paleka: Yes sir.
Mr. Robinson: What would...why would you not just ask for a formal advisory
opinion? Why informal?
Mr. Paleka: That was the advice I received from Corporation Counsel.
Mr. Robinson: Okay. Gifts when it talks about gifts here it says travel, but in my
mind travel would mean for pleasure not for business.
Mr. Paleka: I am of the same mind.
Mr. Robinson: Okay. I'd like to make a motion.
Mr. Goodenow: Please do.
Mr. Robinson: That we find that this is not a violation, that it's fine. I don't know
how you would phrase that. I'm still new.
Mr. Adams: I second the substance of that approving this petition.
Mr. Goodenow: Okay so it's been moved and seconded that we provide an advisory
opinion that allows for..
Mr. Adams: That this is not a violation.
Mr. Goodenow: The opinion that this described is not a violation. So that's the
motion. We're on discussion on the motion.
Mr. Adams: If I may Mr. Chair.
Mr. Goodenow: Please.
16
Mr. Adams: Actually, Mr. Robinson made the motion so he has first crack.
Mr. Robinson: Oh. I have nothing further to add. I don't view business travel as
much fun.
Mr. Adams: Just to clean up a couple of things if I could. First of all, am I
allowed to make a motion in the middle of discussion? We have
correspondence that we received that was...we have a part of the
packet information that was added to the packet that we should
receive right. So I move that we should receive the information as
provided by Council member Paleka.
Mr. Robinson: I second that.
Mr. Goodenow: It's been moved and seconded. Incidental motion to receive and
file the additional correspondence received from Mr. Paleka.
Motion and Vote: Mr. Adams moved to receive additional information from Council
member Paleka. Mr. Robinson seconded the motion. All members voted aye.
Mr. Adams: Thank you. Back to discussion if I will. The reason this is an
informal advisory opinion is because according to our Code and
our rules, doing a formal advisory is a lot more work. An informal
allows for us to have these kinds of conversations in a
conversational way to deal with this. I think that the appropriate
when we address the Code itself, the appropriate section is gonna
be 2-91.4. That's the one that this falls under at least for me. I
don't see anything that in 2-84 really is where there's an issue
associated with this. I could see that there might be an issue where
actually 2-83(c) actually address this as well as 14-6 of the Charter.
Which says that you all are able to do, meaning the Council is able
to do things that have to do with doing your legislative functions,
right. So the fact that you considered this particular resolution and
the fact that there was funding associated with that. That's all part
of your legislative function. It doesn't mean that there aren't
situations where there may be other considerations that we would
have to deal as a part of the Code. That in situations that may
come up before the Council, but in case those to me seem proper
element of the legislative functions identified in 2-83(c). But the
idea that there's going to be funding provided for travel in fact
does bring it underneath 2-91.4 to me. And so as I take a look at
what the...as we have in recent past considered what we would
look at in terms of guidelines for gifts. The first question for us
under 2-91.4 is simply is this a gift yes or no. For me it's a gift.
It's pretty simple, it's funding that's coming from a non-County
source and frankly a non-government source. For that an officer or
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employee is accepting and so it's under circumstances where it
could reasonably inferred that the gifts intended to influence the
officer or employee in the performance of the official duties or
intended as a reward. And so in that definition, I think the
perception is there that there is that potential okay. But that's not
end of the question. The question then is whether or not this looks
like it influence or reward an official action. To me, that was the
reason for me asking about the potential grant possibilities
potential. And so I say that for me that's a no, are you operating
your official capacity that's a yes. And then finally when we take
a look at our consideration of travel as a gift for an officer or
employee of the County in the past. Is there a benefit to the
County in this case? And I think reasonable to consider, to
conclude that yes there is a County benefit by your and by the
other members who I don't see on here, but assuming that they're
members of the County whether officers or employees by them
also receiving this funding to attend in this situation, attend this
event in this situation. So again this is a narrow in the sense that
we're talking about this event and you're attending and the other
officers or employees attending. For me, all those checks that you
would normally, that you would take into account would follow.
Now I didn't come with those on my own, not that smart. These
came up from, these come from the State Ethics Commission and
in the past we have taken those considerations. We've taken those
factors into consideration and I would suggest that we would do so
again as we consider this particular motion. And in my case in
looking at those factors I think that they are all answerable in the
way that allows you to receive that funding in an ethical way.
Mr. Goodenow: Any further comments or discussion? No I couldn't have said that
better myself. We have a pending motion to issue an advisory
opinion stating that there is no violation given the facts and
circumstances presented in 2016. Is that re-stating the motion
sufficiently gentlemen for you?
Mr. Adams: 2016-01.
Motion and Vote: Mr. Adams moved to issue an advisory opinion that states there is no
violation in Petition 2016-01. Mr. Robinson seconded the motion. All members voted aye.
Mr. Paleka: Thank you very much.
Mr. Goodenow: Thank you. We are now moving to unfinished business.
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6. UNFINISHED BUSINESS
b. Petition No. 2015-11: Review of petition for informal advisory opinion from
a County Officer or employee, to determine whether there would be any
conflict of interest with his employment as an electrical inspector and
performing electrical work for friends and family. [Continued from last
meeting/Closed hearing requested]
Mr. Goodenow: Mr. Haspe why don't you come forward. Okay Mr. Haspe last
time you had a closed hearing. Do you still wish to continue to
have this as a closed hearing?
Mr. Haspe: Yes.
Mr. Goodenow: Okay.
Motion and Vote: Mr. Adams moved that we have a closed hearing for Petition No. 2015-
11. Mr. Robinson seconded the motion. All members voted aye.
11:45 a.m. The Board took a recess to go into closed hearing and dis-connect from
Kohala.
* * * * *
12:19 p.m. The Board returned from closed hearing and entered into a brief recess.
* * * * *
12:29 p.m. The Board returned from a brief recess and re-connected with Kohala.
c. Petition No. 2015-12: Review draft informal advisory opinion regarding the
petition from a Water Board member to determine whether there would be
any conflict of interests to her running for County Council while continuing
to serve on the Board. [Closed hearing was requested]
Mr. Goodenow: Do I have a motion regarding Petition No. 2015-12.
Motion and Vote: Mr. Robinson moved to accept. Mr. Adams seconded the motion. All
members voted aye.
d. Petition No. 2015-13: Review draft informal advisory opinion regarding
petition from Council member Greggor Ilagan, to determine whether there
would be any conflict of interests by him accepting travel, room and
boarding to attend the event he will be a guest speaker for.
Mr. Goodenow: Do I have a motion?
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Motion and Vote: Mr. Robinson moved to accept. Mr. Adams seconded the motion. All
members voted aye.
e. Petition No. 2015-14: Review draft informal advisory opinion dismissing
petition by Annette Mejia Pickens alleging that County Officers or employees
were in violation of Section 2-83 (Fair Treatment) of the Code of Ethics
because they"were not treated in a courteous, fair and impartial manner"
and were given a violation prior to an investigation being done.
Mr. Goodenow: Do I have a motion?
Motion and Vote: Mr. Robinson moved to accept. Mr. Adams seconded the motion. All
members voted aye.
Motion and Vote: Mr. Adams moved that the Board of Ethics on February 10, 2016 go
into executive session for the purposes of considering the evaluation, dismissal or
disciplining of an officer or employee of the County of Hawaii,where considerations of
matters affecting privacy will be involved. The Board may also consult with the Board's
attorney on questions and issues pertaining to the Board's powers, duties, privileges,
immunities, and liabilities. Mr. Robinson seconded the motion. All members voted aye.
12:32 p.m. The Board left regular session and took a brief recess. Dis-connect from
Kohala.
* * * * *
2:06 p.m. The Board returned to regular session and re-connect with Kohala.
7. VOTING ON EXECUTIVE SESSION MATTERS
a. Review of the executive session minutes of September 9, 2015.
Mr. Goodenow: At this time though I just wanted to note for the record here. We
have any votes we have to take?
Mr. Adams: We do, we have...can I make that motion.
Mr. Goodenow: Please do.
Mr. Adams: I move that we approve the executive session minutes of
September 9, 2015 amended.
Mr. Robinson: I haven't had a chance to review it.
Mr. Goodenow: Alright. Maybe you were meant to continue it to the next meeting?
Mr. Adams: Alright. I would amend to continue the approval of the minutes of
September 9, 2015 to our next meeting.
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Motion and Vote: Mr. Adams moved to continue the approval of the minutes of September
9, 2015 to the next meeting. Mr. Robinson seconded the motion. All members voted aye.
b. Review of Confidential Financial Disclosure Forms filed pursuant to Section
2-91.1(d), Hawaii County Code, by County board and commission members
and designated County employees, where personal matters will be reviewed.
Mr. Goodenow referred back the following for further information. Numbers 8, 13, 17,
23, 28, 40, 46, 53, 54, 56, 60, 61, 63, 72, 75, 78 and 79. Number 76 deferred to next meeting due
to lack of quorum.
Motion and Vote: Mr. Robinson moved to approve the acceptance of those except for the
ones noted with exceptions. Mr. Adams seconded the motion. All members voted aye.
c. Review Memorandum submitted on February 4, 2016 by Deputy
Corporation Counsel J Yoshimoto re: Hawaii County Code Sections
regarding Gifts.
**Reviewed and filed**
8. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE
AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF
HAWAII
Mr. Adams: If I may Mr. Chair. For the purposes of explanation, a few months
ago maybe more than that we started the process actually a year
ago now that I think about it. Anyways over a year ago, we started
the process of taking a look at the Rules of Practice and Procedures
of the Board with idea of updating those to come from the nineteen
century into the twenty-first century. So we had done some work
on that and we're at a stage were we probably can get to finish
line. I do have some questions about whether it makes sense to do
that completely given the changes that we're gonna see being July
1. In addition, once we make those changes to the Rules of
Practice and Procedures there's another ordinance that take affect
that has to do with our ability to enter penalties for violations of
the Ethics Code. That current is not...and that was put into
ordinance by the Council so they're waiting on us to change it.
That was done a long time ago. A few years ago. So those things
are still in the process. I didn't do any work on it for this hearing
because I figure we were gonna be snowed under. But the plan is
to come in with a little bit more fidelity with changes and give the
members the opportunity as well as the public an opportunity to
review and then consider it. Whether or not it's considered prior to
July 1 or we decide to wait off until the new ordinance takes effect.
Or we develop the rules. I'd be loath to develop the rules
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necessarily to take into account those changes that we know are
occur unless we knew that we're not going to vote them until after
the first of July. I mean we could do that, but we necessarily be
able to consider them as a Board or for the public to be able to
speak to them until after that as well I think. To be consistent.
Counsel?
Mr. Yoshimoto: Given the time frame it would take to review draft rules, discuss it,
have a public hearing and a publication on it. Usually it takes
about three months so you if we get something on the agenda even
as early as March. We'll probably be right up close to July
anyways. I think we should factor in the laws that are gonna be in
effect July 1 already because I'm thinking we'll be really close.
Mr. Adams: So there's nothing wrong in your mind with us developing Rules
of Practice and Procedure that would be discussed because they
would be reflecting laws that are not necessarily in affect now, but
will be in effect so it's still be okay to have those public
discussions?
Mr. Yoshimoto: I believe so. Just because the process of how long it takes to get
public comment.
Mr. Adams: I agree, I go back to my history with the federal side. Agencies
don't send out notices or any of that stuff until they actually have
the laws done. You know in place. But we're a small little County
so.
Mr. Yoshimoto: And there is another facet to the penalty provision that I need to do
some research on cause basically my preliminary research
indicates that if we were to impose a fine, then we legally would
have to have some type of body that they can appeal to from this
body should they dispute that... for example something to the
Planning Commission does you can appeal to the Board of
Appeals.
Mr. Adams: I thought the appellant in this case was not going to be within the
County but it would be the judiciary.
Mr. Yoshimoto: They do have Chapter 91 —Appellant rights per HRS, but I'm just
thinking legally that...
Mr. Adams: There needs to be...
Mr. Yoshimoto: Due process concerns. That's my initial and preliminary thought.
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Mr. Adams: That if we issued a penalty, that they need to be able to come back
to appeal that.
Mr. Yoshimoto: To somebody, another body whether it be us or another body. So..
Mr. Adams: To be constitutional.
Mr. Yoshimoto: To that may take a little bit doing, but the things that you're talking
about, I think we can get done relatively quickly so if the Board
doesn't mind doing that separately in other words just the stuff that
we can do right now I think that would be...we can take of that.
Mr. Adams: Alright so that's the purpose of this, that's what we're talking
about here. And so the idea would be no promises, but the idea
would be to have something to the staff assuming that the Chair is
approved as part of the agenda to include it on the agenda for at
least initial conversation. Okay.
Mr. Goodenow: So we're done with that.
9. ANNOUNCEMENTS
Mr. Goodenow: Announced the Board's next meeting on March 9, 2016. I have
scheduling problems because I been appointed to the State
Campaign Spending Commission. They already published their
meetings right in advance and they adopted a calendar and they do
vary from it, but their meetings are on the second Wednesday of
the month in Honolulu. I'm really happy to be on the campaign
spending commission because they also do a lot of work with the
Council on Governmental Ethics. It's an association of largely
ethics officials and also campaign spending and they pay for me to
go to the conference and all that. It's a good opportunity, I do look
forward to that. Are we gonna find another date and I don't know
if there's a date. I know that the Council meets on the 1St and 3rd
Wednesdays usually right in this room and I believe.
Mr. Adams: Once a month and in Kona.
Mr. Goodenow: Right, but they had the public come here. So we've got to figure
out what we're gonna do.
Mr. Adams: Yeah. If we're gonna change it from the second Wednesday of the
month, then we would need to identify that I guess as a special
meeting and we would be able to do that prior to the adjournment
of this meeting. Because our regular meetings right now are
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scheduled for the second week. So it end up being a special
meeting.
Mr. Yoshimoto: Yeah. So Doug you're looking at Rule 1.15(a) so what I literally
read that, this is kind of maybe bordering on a little too literal, but
it says that. "We shall hold its regular meeting the second
Wednesday of each month unless a special meeting is called and
the Chairman has announced the time, date or place of such special
meeting prior to the adjournment of the regular meeting." Right so
that's what we're doing today, but once we have a special meeting,
we no longer have a regular meeting.
Mr. Adams: That's right.
Mr. Yoshimoto: So that means that thereafter, we can't call it a special meeting
cause you have to call it from a regular meeting.
Mr. Adams: It would mean that you would be able to do a special meeting. Is
there anything...is that only one special meeting?
Mr. Yoshimoto: That's how I read that, that's why I said I'm reading it literally
right cause the example is the Council so we have regular meeting
and we have special meetings. Meetings are special meetings for a
specified purpose right and then so if I'm reading it literally that's
what that means.
Mr. Adams: So here's the question then. So let's say we have a special meeting
where all of us can make it. Right. That doesn't prevent us from
also having a regular meeting?
Mr. Yoshimoto: Correct.
Mr. Adams: Where you would have three of us maybe that are able to be there
and then you could call a special meeting from that regular
meeting.
Mr. Yoshimoto: That's correct. You could do that.
Mr. Adams: That's a lot of extra work, but it does allow us to have as many
people as possible while you're on the Commission. Right.
Mr. Yoshimoto: That's definitely one option. Another option that I thought about is
that we could just suspend this rule to accommodate the schedule
of everyone. The hard part is that I don't know the schedule of the
other two Board members and what can be worked out. So but if
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we suspend the rule, it's only a temporary fix to because Mr.
Chairman how long are you on this other Commission?
Mr. Goodenow: Four years.
Mr. Yoshimoto: So it's a long time to suspend rules right so. It's up to the Board
what you want to do I mean.
Mr. Goodenow: I would ask that at least just for the next meeting we suspend the
rules and have it on another date. And then we can have a better
discussion when everyone's here.
Mr. Yoshimoto: Okay.
Mr. Goodenow: So that instead of having it on March 9, we either have it ...I don't
know if the staff can schedule it?
Mr. Adams: You're right so we're going to be up against other meetings of
other types and all that kind of stuff We can hold in a different
place I guess. Although you don't have a video conference
capability. The other question is whether we want to go to Kona
for that meeting.
Mr. Goodenow: It's a good idea.
Mr. Adams: So maybe we have a special meeting, we do it in Kona maybe
that's not busy there or they have more options. I don't know if
you have visibility of that.
Ms. Hirayama: I can check. It was more of the concern of having because Mr.
Hyland has his ongoing petition.
Mr. Adams: Right so we're gonna have to have the contact with Kohala, Right,
but we can do that from Kona too.
Mr. Hirayama: Yes, but I'm not sure which room will have that.
Mr. Robinson: There's only one in West Hawai`i and that's the Council Room.
Mr. Goodenow: Well the other thing to is we have to know before we adjourn this
meeting if we're gonna a special meeting right?
Mr. Adams: There are provisions for doing it, but I don't know what those are
specifically right they identify...it's another part of the Section 13-
20(c) of the Charter.
25
Mr. Yoshimoto: That just references the regular notice requirement per the
Sunshine Law.
Mr. Adams: So meaning that we could set one up not here, we just have to
make sure that it's noticed in accordance with provisions there.
Mr. Goodenow: Right, I would think that's right.
Mr. Yoshimoto: For the record 13-20(c) states the Council Board of Commissions
shall provide notice of any regular, special, rescheduled or
emergency meeting according to the provisions of HRS. That's all
it says.
Mr. Adams: Right so in other words the ten days in advance or whatever. So
we can identify that we want to, but there's some additional
information we have and then as long as we make sure we notice it
properly. Then we should be okay.
Mr. Goodenow: So we'll defer to Chair Ku to pick a date.
Mr. Yoshimoto: We would need to announce it a regular meeting.
Mr. Adams: No that's not what this says. Right so the Board 15(a)...1.15(a)
The Board shall hold its regular meeting on the second Wednesday
of each month. Unless a special meeting is called and the chairman
has announced the time, date, or place of such meeting prior to the
adjournment of a regular meeting; otherwise, a special meeting
can be called only as provided in Section 13-20(c) of the Charter.
So if we don't get it done today before we adjourn, we can call one
we just have to make sure that we notice it in accordance with
HRS based on what you just said 13-20(c). Right now what we're
doing is that we are actually. We do have our Counsel here, but he
is actually back in time to his time as his Council Chair as I don't
remember us ever having that.
Mr. Yoshimoto: Okay. Let's have a good discussion on this because Rule 1.15
basically says here. You can call a special meeting provided it's
announced at a regular meeting. This says otherwise, the special
meeting can be called only as provided in 13-20(c) which says you
just gotta notice it so it kind of contradictory. Because on the one
hand you can do whatever you want and in the other hand it says
you have to do it at a regular scheduled meeting. I'm just...
Mr. Adams: If I'm looking at the first part of(a) before the semi-colon, that's
saying this is how you do special meeting because it's within the
minutes and you're doing before you adjourning so that everybody
26
that's not in regular meeting knows that information. The second
part of that paragraph is establishing if you weren't able to do that,
this is the only way that you can do it otherwise.
Mr. Yoshimoto: And you can do it like any other regular meeting then. Okay. So
that's clear. So then we...so what is the Board's plan? We're
gonna have a regularly scheduled meeting on second Wednesday
per our rules and then have an additional special meeting that will
be called by the Chair? What is the plan?
Mr. Robinson: I'm confused. What should we do?
Mr. Adams: To me we can say that we're gonna have a special...we know
we're gonna have a special meeting we don't know what it is. We
know the Chair is going...we're going to kick it to the Chair to
select a date and then we will follow the provisions of 13-20(c)
which essentially says we need to notice it properly HRS. That
last part doesn't have to be as a part of any regular meeting.
Mr. Yoshimoto: Okay.
Mr. Adams: But that's not your view?
Mr. Yoshimoto: Well it seems a little complicated because I view special meetings
as special in the specific sense. I would feel more comfortable in
just suspending that rule like the Council would normally do and
basically say for the reason stated by whoever is making the
request right. This is an attempt to get us to have all five of us, all
five Board members present right. So we can do that temporarily,
it's up to the Board but either approach I think is fine. It's just I
just use special as being really specific versus regular.
Mr. Goodenow: I agree with that. So what we're saying is we're going to suspend
the rule that we have to have our regular meeting on the second
Wednesday and hold our regular meeting on another time.
Mr. Yoshimoto: To be determined.
Mr. Goodenow: To be determined by the Chair.
Mr. Yoshimoto: So long as you three are agreeable to that, then we can move
forward that way. I think that's clean.
Mr. Goodenow: Yeah. Can I have a motion?
Mr. Robinson: I'll make a motion to that effect.
27
Mr. Adams: Second.
Mr. Goodenow: Do have to do a motion to suspend the rules first?
Mr. Yoshimoto: No. That would be the motion.
Motion and Vote: Mr. Robinson moved to suspend the rule concerning the Board's
regularly scheduled meetings held on the second Wednesday of each month. Mr. Adams
seconded the motion. All members voted aye.
10. ADJOURNMENT
Mr. Goodenow adjourned the meeting at 2:25 p.m.
Respectfully submitted:
EmilyV7111 ayama, ary
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