HomeMy WebLinkAbout2016-04-12 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS
MINUTES—REGULAR SESSION
Tuesday, April 12, 2016
10:00 a.m. to 12:40 p.m.
Hawaii County Building
25 Aupuni Street
County Council Chambers
Hilo, Hawai`i 96720
Members and Staff Present:
Ku Kahakalau, Chair
Kenneth Goodenow, Vice-Chair
Douglass Adams, Member
Rick Robinson, Member
Darnel Kalele, Member
J Yoshimoto, Deputy Corporation Counsel
Emily Hirayama, Secretary
1. CALL TO ORDER
Ms. Kahakalau: Aloha Kakahiaka. Good morning. It's ten o'clock and
we're starting right on time. My name is Ku Kahakalau
and I'm very excited to have a full board. This morning if
just because it's our first time to have a full board in a very
long time. If it would be okay for everybody to just
introduce themselves so that our audience knows whose
here.
Mr. Robinson: Rick Robinson.
Ms. Kahakalau: Make sure you guys turn on your microphones and speak
into it please.
Mr. Robinson: Rick Robinson.
Mr. Goodenow: Ken Goodenow.
Ms. Kalele: Darnel Pilialoha Kalele.
Mr. Adams: Doug Adams.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS
Ms. Kahakalau: Mahalo Nui. So we're calling in this in order at ten o'clock
and we want to start with statements from the public. Now
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I don't have a list here so nobody here wants to make any
public statements and the same goes for our two....
Mr. Yoshimoto: Mr. Hyland.
Ms. Kahakalau: Alright. We have a statement from the public. Go ahead
sir. Introduce yourself and tell us what item you're
speaking on please.
Ms. Sweeney: Chair this is Kohala. Are you identifying us?
Ms. Kahakalau: Yes I am, sorry.
Ms. Sweeney: Thank you mame. I'd like to introduce Mr. Hyland and he
will be speaking on items 4a, 4b and 6f. He is a resident of
Ainakea Senior Residences. His subject matter is Sako,
Alameda frequent flyer miles. Do you want him to give his
testimony now? Chair?
Ms. Kahakalau: Yes please Mr. Hyland this is just a general statement on
these items and then when we get to the actual agenda item
if we have additional questions then we can certainly have
you speaking to those specifically.
Ms. Sweeney: Okay so he can hold off now and just wait until he goes to
each one of those items.
Ms. Kahakalau: No I think we would just want to get a general, short
Mana`o on those three that you mentioned.
Ms. Sweeney: Mahalo. Go ahead Mr. Hyland.
Mr. Hyland: Good morning and Aloha.
Ms. Kahakalau: Aloha.
Mr. Hyland: You have three items on the agenda today that are
connected to me. 4a and b and item 6f. I have asked that
you reconsider the first two so the two new members of the
Board might have an opportunity to voice their opinion. I
hope this finds favor with you. As to Ms. Sako my point is
simple. When she became Finance Director, she had three
months during which time according to State policy. She
should have revoked Mayor Kenoi's P-card privileges, but
did not. Why is this not an ethical lapse of judgement on
here part? Your finding of no vault by Ms. Sako says you
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think it's okay for the Mayor to have misuse his P-card
during those three months and it shouldn't be okay. As to
Dr. Alameda my point is equally simple. He lacks three
years' experience supervising others and that is a
requirement the County Charter says he must have. You
received absolutely no testimony regarding who he
supervised or if he could hire and fire them, or if he even
filled out their performance evaluations. Without such
evidence, your finding of no vault says that requirement of
the County Charter is meaningless. Finally, you said in
regard to frequent flyer miles being used for employees'
personal benefits, that it's okay because the State allows it.
That's not the point, the point is if our County Ethics Code
forbids it. Our Charter, says employees cannot use their
official position to secure special privileges and being able
to use County paid for frequent flyer miles for their
personal use is certainly a special privilege that is not
available to every other person in the County. So how do
you justify it is okay. Please review the wording of your
draft order to be sure it explains that to us today. So the
press can let us know why you think County employees
should get special privileges the rest of us tax payers don't
get. Thank you for your considerations.
Ms. Kahakalau: Do we have any other public statements based on what we
just heard or anything? Okay.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF MARCH 8, 2016.
Ms. Kahakalau: Then we're moving on to the approval of the regular
session minutes of March 8. Has everybody had a chance
to see those and review those? Do I hear a motion or?
Discussions?
Motion and Vote: Mr. Robinson moved to approve the minutes. Mr. Goodenow seconded
the motion. All members voted aye.
4. CORRESPONDENCE
a. Letter from Lanric Hyland dated March 7, 2016, regarding Petition No.
2015-07.
Ms. Kahakalau: The next item on the agenda deals with the
correspondence. The first one being the letter from Mr.
Hyland dated March 7, 2016 regarding Petition No. 2015-
07. Do we need a discussion? No. So we're not going to
discuss this letter any further at this point? Okay.
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Motion and Vote: Mr. Goodenow moved to file the communication. Mr. Robinson
seconded. All members voted aye.
b. Letter from Lanric Hyland dated March 7, 2016, regarding Petition No.
2015-09.
Ms. Kahakalau: 4b a letter from Mr. Hyland dated March 7, 2016
regarding Petition No. 2015-09. Any discussion to that
letter? No.
Motion and Vote: Mr. Goodenow moved to file the communication. Mr. Robinson
seconded. All members voted aye.
5. NEW BUSINESS
a. Petition No. 2016-04: Request for an informal advisory opinion from a
County officer or employee, to determine whether there would be any
conflict of interest with his employment with the County and as a General
Contractor when bidding for County of Hawaii projects. [Closed hearing
requested]
Ms. Kahakalau: The individual there has requested a closed hearing and I
just want to check first if the individual is here. Okay. Are
you still wanting a closed hearing?
Mr. Andrade: No.
Ms. Kahakalau: It's fine. No need? Okay. Could you then please come up
and so we can talk about this petition. You're Mr.
Andrade?
Mr. Andrade: Yes.
Ms. Kahakalau: Have a seat and turn on the mic please and then maybe
state/summarize your petition please for us.
Mr. Yoshimoto: Madame Chair hold on one second. I think Kohala logged
off thinking that it was a closed hearing. So we need to get
them back on board. Okay so if we can wait a few minutes.
Ms. Kahakalau: Okay one moment please until we get Kohala back on.
Thank you.
Mr. Yoshimoto: Kohala just making sure you can hear us. Good morning.
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Ms. Sweeney: Good morning. Did you want this a closed hearing or
open?
Mr. Yoshimoto: It's now an open hearing so you can stay online Kohala.
Thank you.
Ms. Sweeney: Thank you.
Ms. Kahakalau: Alright Mr. Kendrick if you could please just give us a
short summary of your petition please and introduce
yourself.
Mr. Andrade: My name is Kendrick Andrade. I'm currently an employee
of the County of Hawai`i, contract hire. My petition
basically is to figure out at the same point, I'm also a
general contractor. I'm trying to figure out at what point is
there conflict of interest if any for me to be able to bid on
County projects in the future. And at what point does my
employment as a County employee become some conflict
and basically where I need to either leave the County or not
bid as a general contractor.
Ms. Kahakalau: Mahalo. First of all thank you for coming and checking on
it. It's always good to be pro-active and solve those
problems before they actually arise as an issue. So I'm not
too sure...Do we have any of our seasoned members here
to give some advice?
Mr. Adams: Thank you. Not sure if that makes me salt or spice. Mr.
Andrade as a general contractor the typical agency that you
would do the bid on, is it any of the agencies, is it most of
the agencies? What are the agencies that you're looking at?
Mr. Andrade: Right now I work under the parks and recreation. For me it
would be basically any agency. If I choose to bid on a
Public Works project or P&R project, I don't want to have
a limitation.
Mr. Adams: And you've had a chance to take a look at the Section 2-84
that is a conflict of interest in the Hawai`i Code?
Mr. Andrade: Yes.
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Mr. Adams: And if I'm looking at your petition, you're asking us
essentially to help you identify at what point in the process
of bidding it becomes a conflict for you.
Mr. Andrade: Yes. I guess not only as bidding, but also it's my...it's
kind of my understanding that I feel it wouldn't be a
conflict of interest because it's a sealed bid process. That
it's not a conflict of interest up until I actually win a project
or bid and actually need to sign the contracts and actually
become official. That I'm the official low bidder and
contracting signing. And at that point I think there needs to
be a decision whether I'm gonna do the general contracting,
accept the work or if I'm gonna continue as a County
employee.
Mr. Adams: Thank you.
Mr. Goodenow: Madame Chair. You said you're a contract employee or is
it like an eighty-nine day contract or....
Mr. Andrade: It was...It started off as a yearly contract, I was contracted
for a year for the Department of Parks and Recreation. My
contract has extended. Basically what I do is I'm a project
coordinator for the Parks and Recreation.
Mr. Goodenow: What does a projects coordinator do?
Mr. Andrade: Basically go out to the projects that we have out for
building for example Pahoa Park and construction manage
that project with the contractors.
Mr. Goodenow: Alright. Well I mean...I don't know if anyone else has any
questions for the petitioner before we move on to
discussion. The contract section, right, doesn't really seem
to be a problem because it's done by the sealed bid process,
right, under the procurement code. So I don't see a
problem with that. As far as you know conflicts of interest,
I mean if your...you have nothing...do you have anything
to do in the parks department as far as putting input on a
project or having any kind of how it would be
designed...like a park design. Right, you would have some
input into that.
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Mr. Andrade: Yes.
Mr. Goodenow: So in that sense, I mean that is...your job right. I don't
think in my opinion and I'm willing to discuss this further.
As far as fair treatment provision right, if you're doing
something...you can design something that you know can
or something like that. That could be an issue, but outside
of the parks department I certainly don't see a problem.
Anyway that's my thoughts on this.
Mr. Adams: Madame Chair. I think the first thing I would say about
this is this is really facts specific. Our ability to address
your...where a conflict of interest might come...becomes
one that is based on the facts of the contract. Where you
are in the County, the connection between your position
and what the contracts gonna be doing. Those are all things
that you take into consideration. So I'll say that. I think
there's...under the current law, not the Code that's coming
in one July. When we look at 2-83(b) it talks about "No
officer or employee shall use or attempt to use the officer's
or employee's official position to secure or grant
unwarranted privileges, exemptions, advantages, contracts,
or treatment, for oneself or others". And that "includes and
not limited to seeking other employment or contract for
services for oneself by the use or attempted use of the
officer's or employee's office or position". So I think that
this Board over the years to the extent that I'm aware what
the Board has done. Has taken a pretty liberal position on
that and liberal and meaning expansive. That if you are in
a position that oversees the execution of contracts and also
potentially bidding on a contract for that particular agency.
That would be considered a conflict of interest. So, but you
know we're just having a discussion here and different
members of the Board may have different views on that.
For me, the idea is to try and create some type of firewall
between what your position is with the County, the
responsibilities you have and what the contracts is for.
Typically we can do that by ensuring that you're not
engaged in...that someone's not engaged in a contract for
the agency that you're a member of or only in another
agency. That's a potential firewall. Again it comes back to
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also perception and trusting government and how those
things look not just how they would be if you follow my
drift. I'm concerned about...personally I'm concerned
about addressing this petition in the hypothetical because
it's such a broad hypothetical for me. And so I'm inclined
to suggest that we dismiss it just because I don't know we
do anybody any good by answering a question that is as
broad as this. But I'm also open to other thoughts on this.
Mr. Goodenow: Madame Chair. I'm sorry I'm remiss. I have the current
code, I don't have the updated provision of July 1. At the
last meeting we actually did take a position that was
prospective and I don't know if that established a
precedent. If we want to discuss that issue.
Mr. Adams: Madame Chair if I might. I think that what we did last time
actually had to do with a facts specific situation. And then
the way the current...the law that takes effect on July 1.
What it changes is not specifically the 2-84 aspect of this.
Meaning 2-84(a) doesn't change and the portion that we
were looking at in 2-83 doesn't change at least the item that
I was referring to. The part that does change...it does say
that if there was going to be a contracting for goods and
services within a County agency. Then that officer or
employee needs to obtain an opinion from the Board that
there's no conflict of interest. That maybe why Mr.
Andrade's coming to us now is that he's seeing that and
he's trying to figure out you know...where does that...what
does that take place...when do I need to worry about
coming to the Board prior to doing the bid or when the bids
actually been granted.
Mr. Goodenow: Right, because the language is in the event an opinion by
the Board was not obtained in advance of submitting a bid.
The officer or employee shall instead submit a copy of a
letter or petition request in review by the Board. But it
does contemplate this kind of before the bid process you
get some kind of clearance letter. I agree with you, I mean
if you had like you're gonna bid for something you know
what it is, you come to us and say hey I want to bid for
project x. Is that a problem? I can understand that means
you gotta come to the Board for every single...I don't
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know what to say. I mean I don't have a...I think it's clear
right if he does...the nature of the relationship between the
officer and the employee in the County's provided in full
disclosure to the agency. That part is no problem for you.
I don't know...I mean are we...every single bid we're
gonna have to review in advance and then it's our job to
say hey every bid...
Mr. Adams: That's what it says. That's what it says, but it's if they are
an officer or employee of the County.
Mr. Goodenow: Right.
Mr. Adams: Right. That's the deal and so I mean that's what the bid
said. I mean that's what the law that comes in on July 1
says. Whether or not it's a conflict, that I don't think that's
been changed by the law. It's just when they come here.
Mr. Goodenow: I agree.
Mr. Adams: It's pretty clear on the law that it has to be before the bid is
submitted. That's what that says here, so the determination
of whether there's going to be a conflict of interest or not.
Something that we would look at when these come in front
of us, it's gonna be done prior to the bid process.
Ms. Kahakalau: And that can definitely present a challenge just on a time
line factor right, because when the request come out and
you only have so much time to submit your bid. That may
not be enough time for this process, so that's one thing for
us to look at as far as long term kinds of things. What is
feasible? I hear what you're saying and given that the bids
are sealed. You know in general, that is an important piece
as far as they wouldn't any...you wouldn't get any benefits
or privileges right because you're an employee. However,
you know like you said once a bid is awarded and it's
awarded to you, then it's very likely that there will be
conflicts of interest especially if it's within that specific
organization or department that you're in. So I would say
that...I like this from a personal perspective, I wouldn't put
it any bids for parks and recreation because even if it's not
the appearance of it being is extremely, extremely high.
Right. Now as far as other bids is concerned, I think that's
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where maybe the case by case approach. If it's timely
possible and I'm not too sure that it is. Maybe your best
solution, but it would say in general putting your bids for
parks and recreation...even if it's not the appearance of it,
it certainly very probable that somebody gonna say hey
there's a problem here. That's just more personal Mana'o.
Mr. Goodenow: I mean I agree with that. I mean P&R's gonna be a very
special case. Did you work on the plan for that particular
park that's getting improved or...I mean...In general, I
mean if there's a public works bid that goes out, he has no
real connection with Public Works. Couldn't we say
hey...I mean...what would the conflict be? I know it's
dangerous on these very big things that may come back to
bite us, but that's a question I have for the Board maybe.
Maybe we should continue this to have an overall
discussion on what we're gonna do. We're kind of setting
precedence on these first couple weeks, we expect a look
more. I don't know, but I don't see a problem with for me
at this point in saying hey as long as it's not P&R, we don't
see a problem. But if it's P&R you have to approach us on
a case by case basis. That's my..
Mr. Adams: I would be inclined not to be as specific as that. When I
look at the petition that Mr. Andrade brought back. The
question is...is the current employee of the County and also
general contractor will I be able to bid on upcoming County
projects while also holding an employment position with
the County of Hawai`i. That's pretty basic question and for
me I said initially I'd be inclined to dismiss, but actually I'd
be inclined to answer that question. The question is can
you bid. Well certainly. But he law says that as a County
employee or officer, you got to come to us first to make
sure there's no conflict of interest. So can you bid? Sure.
Do you have to come to us if there's a...to determine
whether there's a conflict of interest. According to the law
that will take effect on July 1, yes. And so that would be a
potential answer it seems to me in that regard. Rather than
laying out specifically that currently he's a member of
parks and recreation and so that's off limits. I mean there
may be situations where it's not. I don't know and so I'd
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rather answer his question. I think that the determination of
the specifics of the contract and the specifics of the
employee's relationship determination whatever agency
that they're a member of. I think that matters. For me that
matters in the determination. So I would move that we
answer as in an advisory opinion, this petition, in the
affirmative with the understanding that the law on July 1
means that if you're an employee or officer of the County
and you want to bid on any County projects. You're gonna
have to come to this Board prior to that bid where you're
gonna have to operate in accordance with the law. There's
a couple other stuff in there as well.
Motion and Vote: Mr. Adams moved to affirm that he has the ability to bid on any
upcoming contract, but must also follow the new law that takes effect July 1 in regards to
coming to the Board. Mr. Goodenow seconded the motion. All members voted aye.
Ms. Kahakalau: Thank you Mr. Andrade.
6. UNFINISHED BUSINESS
a. Petition No. 2015-10: Review of petition alleging that a County Officer or
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]
Ms. Kahakalau: We have a correspondence dated February 9 that we
received from Jessica Yamauchi, executive director of
Hawai`i Public Health.
Mr. Goodenow: Madame Chair. I believe it would be prudent to take this
up after resolving the conflict of interest issues in"b" and
"c". So I move that we table this until after resolution of
those issues.
Mr. Adams: Whatever the correct verb is there. Is it table? Until later in
the meeting.
Ms. Kahakalau: Is that a motion? Okay do we have a second? Any
discussion? So what's happening is there's another issue as
far as conflict of interest is concerned. We want to deal
with that first because it pertains to this petition.
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Motion and Vote: Mr. Adams moved to table this petition until later in the meeting. Mr.
Goodenow seconded the motion. All members voted aye.
**Petition No. 2015-10 removed from the table, minutes continued**
Ms. Kahakalau: Any additional information?
Mr. Revell: No. No additional information.
Ms. Kahakalau: Mr. Adams.
Mr. Adams: We also have the subject of the petition available. Mr.
Kanuha would you like to make any comments. Perhaps
you'd like to bring him up.
Ms. Kahakalau: Mr. Kanuha.
Mr. Adams: We've had plenty of opportunity to hear...we have heard
from that...we've heard this petition in September at out
September meeting. Again I believe at our February
meeting and again in our March meeting. In my
consideration having heard from the petitioners and also
from the subject of the petition in this case Mr. Kanuha. I
know that the Coalition for Tobacco Free is also part of
that, but I would like to make my comments specifically in
this case. Actually I guess it's combined. There's also the
County employee piece of this and I'll get to that in a
second. In looking at...for me looking at the gift piece of
this. It's clear to me when it's parsed out that the purchase
of the ticket to allow Mr. Kanuha to go to the Health
Institutes award dinner, be provided and award and give a
speech. The award in itself is not a gift, right, but the travel
fee to allow that in the...under our Code and HRS which
look identical is a gift. So the question is what do the way
that we've looked at gifts...how do they pertain to this
particular situation. In reviewing the situation again where
we do have...there's stuff happening at the same time in
terms of the ordinance that had to do with vaping and
tobacco and all that kinds of stuff that was about to
be...come before the Council, but hadn't yet and hadn't
been prepared. Nobody necessarily knew that. To be
honest with you, that's important and there may be a
perception issue there, but for me it's actually not that.
Actually it has to do with is there...can we find that this
gift is an acceptable...there's an exception for this gift
under the Code. I'm having difficulty doing that. Now let
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me just say that the consequences of how I feel about
this...or my review on this are not good. Frankly, because
you could be on Oahu and be given an award, go to that
dinner, give a speech and accept the award and there's no
cost. There's no travel that's been paid to that, but if
you're on a neighbor island and you're being given a gift
and it's in Oahu and you're traveling to Oahu. That doesn't
seem to be fair play because it seems like well shoots the
folks on Oahu they don't have to worry about any travel
gift. The fact is the way the Code is written without an
exception written into the Code means that you have to
determine whether or not the acceptance of that gift in this
case the travel is in the performance of the officer or
employee's official duties. In Mr. Kanuha's case, he's
going to accept an award. We didn't hear anything else
that he's doing. Well acceptance of an award is great, but I
don't see that in the performance of his official duties.
Now I could be...maybe I'm wrong on that...maybe
somebody else feels differently on that. This is in some
degree...it kind of looks like a reward for actions that have
been taken, but of course all of our legislators and our
executive officers and even judiciary will receive awards
from time to time based on the stuff that they've done. The
travel is the gift piece here that I have difficulty with and
because I can't find an exception in policy, because I can't
find an exception in our Code that allows for our officers of
the County being able to accept that gift for something
that's not in the performance of their official duties. That
makes it to me...then a violation of 91-4. I wish I could
find one frankly, because I think that there are plenty of
things that are officers and employees do that are worthy of
recognition. And so then you have all kinds of
organizations willing to do that, but because they have to
travel unless that travel is being paid for personally or in a
lot of times it's connected with some type of official action.
Therefore is a tangential aspect to it, but when it just for
going over there to do it. I don't know how you get around
it frankly. When it comes to the employee, I'm of a
different mind. The employee went over, it was training as
I understand it for the employee and the training was going
to benefit the County in terms of the aspects of what that
employee was getting out of the training. In that case,
there's an exception for that and I don't find that to be a
violation. So that's my discussion and I'm definitely open
to other thoughts.
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Mr. Goodenow: Well. I understand where you're coming from and I
agree that that is a reasonable interpretation. I guess the
question is...Is an air ticket to fly to an event, a reward of
any type. I mean I think Ms. Kahakalau said last time that
she gets these things, it's like oh my god I gotta go to
Honolulu, I gotta fly there... I don't think there's...I don't
think it can be reasonably inferred that the gift is intended
to influence the officer or employee. They have Legislator
of the Year, they gotta give it to somebody. It's not like
they made it up right, to award it to Mr. Kanuha. So that
part...but I agree...I mean you read the last line in here of
2-91.4...or is intended as a reward for official action. Well
their giving it to him because he did a good job in their
view, right. That's a little different from you know some
kind of quid pro quo or you did this for us, we're gonna do
this for you. I know it's such an ingrained part of the
legislative process. I mean it would be a radical departure
to say okay...neighbor islanders you can't go to Honolulu
to get awards like this. And because I'm going to say that
it wasn't really intended as a reward because why...he has
no reason to go to Honolulu. Right, but for to go to this
thing. I guess we could ask you...I mean I don't know if
we have to quiz everybody...well did you go shopping at
Ala Moana when you were there. I mean I just don't see
that...that's my opinion.
Ms. Kahakalau: Yeah. I also don't look at it as a tangible gift. A gift to
me...I can carry...you know if there was a monetary, if
there was an honorarium, if they were any of those kinds of
things. I would definitely see where there would be an
issue, but it's a ticket that has no other value except to take
you where you supposed to go. That is directly linked to
the process and the specifics in this case to attend and to
speak at this gathering. And to me even the fact that you're
speaking again, you're doing your job in terms of educating
people...the general public about what it is that's important
to you as a legislator. That's sort of your Kuleana to be not
just out you know doing your specific, going to your
County meetings or whatever, wherever you're at. But also
to be a public figure and to be involved in educating the
public and having contact with the public. To me I'm
looking at the whole process from that perspective and as I
said the ticket basically just a means to get there rather than
any kind of a tangible gift that is of value to me outside of
this event.
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Mr. Robinson: Madame Chair if I may. I agree with Mr. Adams that it's
really clear that there's no exceptions provided. There's no
exceptions provided it's hard to surf that fine line as to
okay is this good but this isn't good. So how do you do
that? I don't think you can, I think we have to follow the
rules specifically.
Mr. Adams: And if I might. I'm not saying that you can't accept, I'm
not saying that an officer or employee of the County can't
accept a recognition in this case you know Legislator of the
Year or whatever is provided. That's not my issue here.
That reward has no pecuniary value, it's reflective of work
that's been done, but I agree it has to do with the legislative
performance. My concern has strictly to do with the fare,
the travel. The travel itself is a gift. It's clear in anything
that you look at...you can look at what we did last meeting
with Councilman Paleka. We identified it as a gift. Now
we declared that there was an exception there because the
performance of official duties and a benefit to the County.
Right. That to me is how this becomes different.
That's....I'm not happy about it, but I don't see a way
around it at least for me.
Mr. Goodenow: Madame Chair. Two thoughts on that. I mean if we agree
that being legislator of the year is not a reward. Right in
and of itself that's not the problem. The only issue is
whether the travel expense associated with the award is a
gift. I think we should look at it not...it's not the award
itself...it's only a travel expense. I don't see how you
could characterize that as a gift. I don't think you really
need an exception because it's not a gift. Going to
Honolulu to accept the award is no gift in my opinion.
Secondly, I think if you...we could say that in this case
there is value to the County, because the policy of our
County whether you agree with it or not is to be a healthy
State, healthy County. It's getting the word out that we
don't want...I guess I mean not that I agree with it. I like
my cigars too by the way. I gotta visit your store. I mean
there is that component of doing official work in that
capacity. It would be like...I mean same as GMO...right.
You go there, you meet other people during the event and
you talk about the policy. The whole point of having a
Legislator of the Year award is actually PR for the Tobacco
Free Hawai`i in a sense. I mean that's part of it. To bring
awareness to their cause and this is a cause that he supports
in his legislative function in that sense. I just think it's he's
15
doing his job as a Council member to go there in that sense
in my opinion.
Mr. Adams: So I go back and I take a look at you know we're County
and we're looking at our County information. I find it
useful for me at least to go and take a look at some other
advisory opinions when the language of the statute that's in
HRS and the language of the County Code are exact. And
so I take a look at what the advisory opinion was having to
do with something that was controversial, continues to be
controversial and that has to do with the teachers accepting
trips for educational purposes. The way they went through
that process, the way the State Commission went through
that process was that they took a look at a number of things
that included what is an official action. So I go back to our
County Code, right because what we're...what we're
talking about is okay if this is official legislative business,
official forms of duties then how does that fit into the
definition that's in the Code of official act or official
action. And so official act, official actions in 2-82 is a
decision, recommendation, approval, disapproval, or other
action, including inaction, which involves the use of
discretionary authority. Right. I don't get from there to
accepting an award. I don't and so official authority is the
administrative or legislative powers of decision,
recommendation, approval, disapproval, or other
discretionary action. Look...I'm not against accepting
recognitions, but there not official acts at least according to
Code that I have here. If somebody can show me
something else where it is, by all means I'll get off my high
horse on this one. But because I don't see it in the Code
that we have in front us, therefore it becomes to me a
problem of saying that...I start with the idea that if you're
accepting travel from other than County sources, right,
other than government sources meaning non-profits or
corporate. That becomes a gift under the way that we have
looked at gifts in the Code in 91-4. So then what are the
exceptions, exceptions are...is there a in this particular case
is there an official performance of official action. Official
action is defined here. I can't change it.
Mr. Goodenow: Official action in Section 2-91...
Mr. Adams: No. It's in 2-82. Definitions.
16
Mr. Goodenow: But that really is the use of the term"official acts" is really
in the fair treatment provision where you're talking
about....
Mr. Adams: Fair treatment is 2-83.
Mr. Goodenow: Right.
Mr. Adams: 2-82 which refers to the entire article.
Mr. Goodenow: But I don't see anything in the "Gifts" section that refers
to...that gifts are allowed or not allowed because of an
official acts. I'm a little...
Mr. Adams: That was an argument you were just making.
Mr. Goodenow: Well...that doesn't mean the definition here official acts in
that section applies to appropriate legislative duties. I mean
just as a legal point, but again I'd say...well first of all the
case which I don't agree with which did get a lot of
criticism about teachers, right, being chaperones. We're
talking about two weeks going to Italy and touring France
or whatever. We're not talking about one flight to
Honolulu to accept an award. I think there's a difference at
least in that level.
Mr. Adams: Absolutely there's a difference, but we're not allowed to
parse that difference. That's not our job.
Mr. Goodenow: Well...to me you're saying that it is a gift because it has
monetary value period.
Mr. Adams: The travel itself is a gift because it's not given by a
government agency, right. It is a non-government agency
where an official of the government has received that
travel.
Mr. Goodenow: But doesn't 2-91.4...1 mean it simply states... no officer or
employee shall solicit, accept, or receive, directly,
indirectly, any gift in the form of money, service, loan,
travel, entertainment, hospitality etc., under circumstances
in which it can reasonably be inferred that the gift is
included to influence the officer or employee in the
performance of the duties or is intended as a reward for
official action. Certainly, we're not saying that under no
17
circumstances can any non-government entity pay for
travel.
Mr. Adams: No.
Mr. Goodenow: Right. So to me the point is...the first step is to determine
whether it's a gift which I don't think is a gift. Secondly, is
to determine whether...I mean if it's a reward for official
action or it could be inferred that the gift isn't intended to
influence the officer. This is the only provision of the Code
we're really dealing with is this 2-91.4
Mr. Adams: Okay.
Mr. Goodenow: I think right.
Mr. Adams: Right.
Mr. Goodenow: So I don't think that necessarily implies that any amount...1
mean travel right it's not a gift. It's an expense that is
attached to accepting the...it has no value to the person. I
mean I guess you could argue like in the teachers. Well
you go to Europe same thing, well you go to Honolulu. He
could maybe you know buy manapua on the way back from
the airport or I suppose maybe spend the night. I don't
know if you did, right and did some personal business and
fly back a few days later. I don't know I just...as far as the
official action even in the case of..official action of course
means voted, but there's a lot of...
Mr. Adams: Means more than that.
Mr. Goodenow: Yeah it does and I mean part of it is attending community
functions. Well that's not an official action in the earlier
section definition. I don't think that definition...but there
are...you know community duties and this is one of those
things. It's not a vote on a bill I'll grant you that, but it still
is...he wouldn't do it,he wouldn't go to Honolulu if he
weren't a legislator doing his job.
Mr. Adams: That's actually my point. If he hadn't received this award,
he's not going.
Mr. Goodenow: Right.
Mr. Adams: And so...
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Mr. Goodenow: But what's the point of going. He doesn't want to go.
Well I don't know that's just my thought on it. He
wouldn't want to go. The only reason he's going is
because he has to for his job or it's better for the
community. It's better for the Council, it's better for the
County for him to do this is how I see it.
Mr. Adams: Okay that's a discretionary action I guess. I still don't...it's
still...the travel is still a gift, it's still a gift. The question is
whether or not is the perception and whether it's a reward
according to 2-91.4. Right and the way that we parse that
in the past has been whether or not that action can be
determined. One the ways you look at it is whether that
action can be determined to have a benefit to the County.
Right.
Mr. Goodenow: Right. Say it does. We have the top legislator. It is a fine
issue Mr. Adams and I really appreciate the fine legal
analysis you bring to this.
Mr. Adams: Thank you very much Counselor.
Mr. Yoshimoto: Madame Chair. Just...I don't know if the Board wanted to
hear from any of the parties or we also have Ms. Yamauchi
from Tobacco Free Hawai`i as well too so.
Ms. Kahakalau: Okay. So if there's anybody else who would like to say
something in regards to this specific agenda item please
come forward.
Ms. Yamauchi: Thank you. Jessica Yamauchi with the Coalition for
Tobacco Free Hawai`i. I just wasn't sure if it might be
helpful if I gave a little bit of context to the meeting that
Council member Kanuha attended. It wasn't simply just an
awards ceremony, but it is our stakeholder meeting. By
him being there, he was able to see other folks Statewide
that were present and talk about the Issue 21 bill that
passed here. Hawaii island was the fourth County, fourth
jurisdiction in the nation to pass it. So it was an
opportunity for him to share the experiences that happened
in 2013 here. I just wasn't sure if that might be helpful for
the Board to hear.
Mr. Robinson: Can I ask questions here? You said it was as event for
stakeholders.
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Ms. Yamauchi: Yes.
Mr. Robinson: What does that mean?
Ms. Yamauchi: Our community partners I mean we put it out to all of the
advocates on our...in our database which is over two
thousand people so it is open, but a lot of the people who
attend are really our stakeholders. We do provide neighbor
island scholarships, usually for one to two community folks
to attend in addition to any of the awardees who happen to
be from neighbor islands. I think in 2014 aside from
Council member Kanuha, we also had a youth who was
honored from Maui and her and her mother came to the
event.
Mr. Robinson: May I continue? I noticed there's the discussion about the
fact that you folks were operating as a...not registered as a
lobbyist and you eventually became registered as a
lobbyist.
Ms. Yamauchi: Correct.
Mr. Robinson: What influenced you to become registered as a lobbyist?
Ms. Yamauchi: Well for us a majority of our work has been at the statewide
level where we have always been registered. We were not
aware that every County had a separate set of issues and
registration process. And so in 2014, we did become aware
and we were closed to hitting the threshold when I was
going to fly over to testify. We have local island staff here
so it's usually not a cost for us. The same type of cost at
least, but when I was going to need to fly over specifically
to testify we made sure we did register.
Mr. Robinson: What is that threshold that you discussed?
Ms. Yamauchi: Well we were looking at what the threshold is that the
County limits are. Five hours and two hundred seventy-
five dollars I believe.
Mr. Robinson: Right. Okay, but you've raised it with other islands and
also at the State level as well.
Ms. Yamauchi; We now are except I guess Kauai does not have
any...there's pending legislation to have lobbying
20
requirements, but at this time they don't have any kind of
process on Kauai.
Mr. Robinson: Kauai is kind of its own separate Hui yeah.
Ms. Yamauchi: But each County is different, has different rules, has
different forms and so we have now been informed of all
the different processes.
Mr. Robinson: So the event that you invited Mr. Kanuha to, did you view
that as a celebratory event. An event in which he would be
honored and the County of Hawaii be honored.
Ms. Yamauchi: Well we do it every year and we have always had the award
category of outstanding elected leader. It had been before
my time being at the Coalition since the Council member
had been honored, but in 2014 we honored two. One was
Council member Stanley Chang and then Council member
Kanuha. I hope that you folks received our letter, my letter
as well. In there I outlined the biggest difference between
the two Council members being honored is that one lived
on Oahu and one lived here. We don't want to discriminate
and not be able to include neighbor island legislators and
awardees as part of our pool of candidates.
Mr. Adams: Madame Chair if I might. In the meeting, the stakeholder
meeting, were there other folks from other neighbor islands
that attended the meeting?
Ms. Yamauchi: Yes.
Mr. Adams: And were they paid for as well by the Coalition, there
fares?
Ms. Yamauchi: We paid for all of our staff members that are on neighbor
islands. They each were able to invite one community
member that we paid for and then any of the awardees that
resided on neighbor islands were paid for.
Mr. Adams: And that in this case was Mr. Kanuha. Were there others
awardees that also received their fares from...County
employees that received their fares from Coalition?
Ms. Yamauchi: Not County. As I mentioned there was a youth who was an
awardee from Maui.
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Mr. Adams: Right. Thank you.
Ms. Kahakalau: I think that one of the parts to me there is really a fair
treatment in terms of everybody being treated fairly. If two
Council people you know got an award, were expected to
be present to receive that award and one of them did not
require travel and other one required travel. In order for
them to be fairly represented, both of them there to pay for
that travel is built into the procedures in terms of allowing
the people that you award to be present at the ceremonies.
So I'm really having a big issue with it being looked at as a
gift that is not allowable kind of.
Mr. Adams: Madame Chair if I might. That's not my view, the fair
treatment element. My view of the fair treatment element
is making sure that members of the public, non-members of
the County, not government workers are treated fairly by
government workers. I don't think that's...for me that's
not the situation here. It's not...the fair treatment
provisions that we have in the Code...don't...impact
whether or not the Counties are treated fairly or different
Council members. One's from the State, one's from the
County that their treated fairly next to each other. The fair
treatment portion at least to me has to do with our members
of the public being treated fairly by members of the
County...government employees.
Ms. Kahakalau: And do you see an issue there? Sorry, but I don't...
Mr. Adams: I don't think that's an issue for us. I'm just saying that as I
take a look at the fair treatment provision, it's not between
Counties or government employees. It's between making
sure that non-government folks are being treated fairly by
the government. That's what that's there for. So I don't
see that in play here, again it's 2-91.4 that's in play for me.
Mr. Revell: The whole thing here is...this all came about when we saw
the disclosure in the paper about Mr. Kanuha receiving a
gift. My problem with the Coalition for Tobacco Free
Hawai`i is...number one we came to the conclusion that
they are lobbyist. They're not just a community
organization, they're funded by big pharmaceutical
companies and a bunch of other things who are my number
one enemies. As an E-cig retailer, these pharmaceutical
companies don't want us around. Now, if this was an
organization where it was the Jaycees, I wouldn't have
22
problem with it. But the problem is these people here gets
salaries, they get paid. They're a lobbyist, their lobbying
for their jobs. The more leeway they make...I don't know
how their pay scale gets, but you see what I'm getting at is
that these people are lobbyist. Now, they might not say
okay we represent Pfizer, we represent whatever chemical
company you know. It's common knowledge that they are
funded by people that don't want E-cigs around. My big
frustration was when the whole twenty-one bill went down.
We had a meeting, a retailer question and answer and these
people couldn't answer half of my questions. Why
couldn't I have E-cigs that have no nicotine and sell them
to people that are eighteen to twenty. Their answer was
because test have shown that there's nicotine and no
nicotine E-cigs. I'm selling food flavoring and propylene
glycol vegetable that makes a vapor. Come test any of my
liquid that has zero-one and it has nicotine in it, I will shut
my business down. That's what really frustrated me when I
found out that Mr. Kanuha's working with these people.
You know you put A and B together, he goes for an award
and right after that the whole anti-vaping in public law is
proposed. It sure looks like that he's favoring the lobbyist
over the public. And when we went and fought this thing,
we had over eight hundred letters just from me alone.
Saying we don't want this. How many letters did they get
from people that said YES we support a vaping ban? I can
guarantee you less than a hundred. From the outside
looking in it just really frustrating as somebody is a
member of the community that you see our legislature like
favoring a lobbyist organization. Most of you guys know
the story here. They didn't want to come and talk to us or
me for...in particular. When I requested to talk about the
whole vaping ban issue and I felt really let down as a
constituent. Seeing that you know it infuriated me to find
out that he got a gift right before he proposed legislation to
ban vaping in public. Now the whole...as a lot of you may
know, that the whole smoking ban came on because of
litter at the beaches, cigarette butts. Now what is the whole
purpose behind not allowing people to vape at the beach,
there's no litter.
Ms. Kahakalau: Mr. Revell we really gotta be...
Mr. Revell: I understand, we're not here for that...
23
Ms. Kahakalau: Speaking to the issue here and I don't think...I hear that
you were let down...I hear that you have a specific agenda
and that's not a good or a bad thing. I agree with all of
that, but that's not really not the question that we're
discussing here. So if you have any comments...
Mr. Revell: Okay back to the point is...lobbyist were favored over the
public and that's all I have to say about that.
Ms. Kahakalau: Thank you. So do we have a motion?
Mr. Goodenow: Well I move that we dismiss the petition.
Ms. Kahakalau: I second the motion for the purpose of discussion. So we
have a motion to dismiss that's been seconded. Looking
for some Mana'o, thoughts in regards to that.
Mr. Adams: Sure. Madame Chair I would make a discussion
specifically to the petition. Let me just address the Petition
2015-10 which includes the continuation page as well. I'm
not going to support this motion, but I think it's important
that I also address my view on the petition so that we
understand. I don't see that there was fair treatment issue
or conflict of interest issue. Where the...is Coalition for
Tobacco Free Hawai`i a lobbyist? Clearly they are, they're
registered as one. When this was occurring, they were
already registered. Does that prevent anybody...them from
talking with anybody including the Council members? No,
of course not. Doesn't prevent you from talking with
Council members either. Do I see the Coalition identifying
Mr. Kanuha as a Legislator of the Year as a reward for his
efforts and anti-tobacco work? Sure. Is that illegal? No.
Do I see that there is some type of pecuniary gift or reward
associated with that recognition? No. I solely I'm
concerned about the gift of the travel and the fact that I
can't associate that travel which is a gift under the 2-91.4
and an official...the way we parsed it in the past as some
type of official legislative action. I can't get there, but I
just want to make sure we understand that my NO has to do
with that portion of the petition.
Mr. Goodenow: Briefly, I appreciate the frustration that you have...in our
country I mean...businesses are allowed to support
Coalitions and that's maybe more of a political issue right.
A political issue on how you question...your recourse is
you can bring it to the voters and say well look Mr. Kanuha
24
did this or that or whatever. As far as saying that this is a
gift, the travel is a gift. I don't agree with that and I think
how would it be different from in the sense of like going to
the GMO conference...traveling to the conference. It's not
just oh you're here to get a reward, it's put on by the
Coalition for Tobacco Free Hawai`i, bring stakeholders,
further educate Mr. Kanuha or whoever goes to it about the
issues. It promotes the issues and in essence that's what a
politician does. They have to pick sides on different issues
what they feel is right. They need to educate themselves on
that issue, they promote that issue, they make it their
agenda and that's the whole legislative process. I
understand what you're saying and I think I hope the
Council will maybe take this up and make some
clarifications for us. I feel that the purpose of this trip and
him going was a benefit to him and his capacity and being a
better legislator. It benefited, understanding the issues and
that benefits the Council and thus the County. So that's
why I support dismissing...though I do have a lot of
sympathy with what you're saying for a small business guy
out there on his own. It looks like wow I can't have an
award you know, but hey that's not really the issue before
us. It's really about gifts and I don't see this as a gift
because I don't think it has the value and I think it is
directly related to his being a legislator.
Mr. Robinson: Madame Chair if I may. I heard what Mr. Goodenow says
and I understand and I agree with you. Unfortunately, 2-
91.4 does not make the distinction in travel. I just says
travel and that's the unfortunate part and that's where we
need to clarify if there's a rule that says going to Oahu to
accept an award or attend a conference or something is not
considered travel...I understand that. Unfortunately, does
not and that's the problem that I have. It's not what Mr.
Kanuha did, but the fact that the rules are clear that travel is
considered a gift.
Ms. Kahakalau: I'm still of the opinion that there was no value in the travel
in this particular travel. I think it's a matter of looking at
value when you looking at gifts and I don't see any value in
this travel. I know when we do federal grants for example,
we in Hawai`i have a totally different reality than any other
State because everywhere else people can drive there. That
is factored in on the federal level, it's factored in all time
that we have unique situation where we cannot drive to be
with the rest of our State like everybody else can. We are
25
not...we don't have that ability and so the flights are a
necessity for us to do our business that no other State can
apply for. So when we put in eight thousand dollars in
travel, we can only justify that because of our unique
geographical situation which we are in multiple islands and
there's no other way to get from one island to other. The
monopoly Hawaiian Airlines. So that is recognized by the
federal government as a unique status and I would look at
this as the gift being the same thing. If he could've driven
there, he would've driven there. But because there's no
ability to drive there, he was forced to take the only
airlines, the only mode of transportation to work within the
State. He didn't go outside of the State or anything,
worked with the State on a statewide issue. And to me
again I do not see that as a gift because of that, because it's
recognized by the federal government that there is this
extra component that we have to deal with as island people
moving from island to island and doing our business on
multiple islands.
Mr. Yoshimoto: Madame Chair before we continue. It's my understanding
that Board member Kalele will not be voting on this. She
was going to recuse herself from this just to let the Board
members know.
Ms. Kahakalau: Alright. Do we have any other further discussion?
Motion and Vote: Mr. Goodenow moved to dismiss the petition. Ms. Kahakalau seconded
the motion. Mr. Goodenow and Ms. Kahakalau voted aye. Mr. Adams and Mr. Robinson
voted no. Ms. Kalele recused herself from voting.
Mr. Yoshimoto: So for the record it's two, two and one recusal so the
motion fails. It doesn't pass so we're back to square one.
It's up to the Board what it wants to do as far as moving
forward.
Ms. Kahakalau: Another motion?
Mr. Goodenow: I don't know what else to do, but move to continue. That's
all we can do. I move to continue this matter.
Mr. Robinson: I second that.
Ms. Kahakalau: Any discussion in regards to the continuation?
26
Mr. Adams: I don't see...I can make a motion that would be the other
side,but I think we'd all end up on the same end. So I
don't see another way forward at the moment.
Ms. Kahakalau: May I ask what a continuation...I'm sorry...
Mr. Goodenow: Until the Call of the Chair?
Ms. Kahakalau: Say that again.
Mr. Goodenow: Until the Call of the Chair. Move to defer until the Call of
the Chair.
Ms. Kahakalau: Okay.
Mr. Yoshimoto: Do you have second for that?
Ms. Kahakalau: So we have a motion and a second.
Mr. Robinson: Second to defer to the Call of the Chair.
Ms. Kahakalau: Did we take the other motion off'?
Mr. Goodenow: I just added...friendly amendment.
Ms. Kahakalau: Friendly amendment. Okay.
Motion and Vote: Mr. Goodenow moved to continue until the Call of the Chair.
Mr. Robinson seconded the motion. All members vote aye.
Ms. Kahakalau: So that motion is carried, but not exactly sure what it
means.
b. Petition No. 2015-15(a) & 2015-18: Review of petitions alleging that a Board
member was 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 he reviewed a petition that could be a conflict of interest.
[Continued from last meeting]
Ms. Kahakalau: This is continued from the last meeting and we have a
correspondence from Kenneth Goodenow dated October 5,
2015.
Mr. Adams: Madame Chair.
Ms. Kahakalau: Yes.
27
Mr. Adams: According to our rules 1.5 which talks about
disqualification of Board members for bias or prejudice. If
I might just read from that briefly. Any person, officer, or
employee may file an affidavit claiming that one or more of
the Board members has a personal bias or prejudice. Such
affidavit may be filed in any matter before the Board
affecting that person, officer or employee. The Board
member against whom you have stated, may answer the
affidavit or file a disqualifying certificate with the Board.
I belief that what we have in front of us is both the
affidavit...actually the affidavits for both 15a and 18 in the
form of petitions. And also we have an affidavit that's
been filed by Mr. Goodenow in this case that answers the
affidavit. So then the next step is that the Board member
answers the affidavit, the remaining Board members shall
decide whether or not that Board member shall be
disqualified from proceeding therein. The rest of this is not
pertinent currently. So I would move that given the
affidavit that was part of the petitions, the affidavits are
part of petition and the responding affidavit that Mr.
Goodenow not be disqualified from proceeding on these
matters.
Mr. Adams: Second.
Mr. Yoshimoto: Madame Chair we should bring the petitioner up to see if
he has anything he wanted to say.
Ms. Kahakalau: Mr. Hyland?
Mr. Adams: No. Mr. Anderson and Mr. Revell.
Ms. Kahakalau: Sorry. Go ahead Mr. Anderson.
Mr. Anderson: Madame Chair and Board. Thank you very much for the
opportunity to speak. Just a brief recap of my political
experience. Since moving here three years ago, I didn't
realize I was gonna be kind of thrown into this political
realm because of the business I'm in. I've seen some pretty
incredible things and the reason that I filed these petitions
is because the very first time I came here and I sat. The
evidence was pretty overwhelming. Actually, there's this
saying that I've been using with my employees. You know
one time it's a mistake, two times it's a choice. It was
clearly some fishy business going around and the two
people that voted against the petition which is why I
28
brought this up which concerns Mr. Kanuha. We did a
little bit of research because we couldn't figure out why in
world when the evidence is clearly there cause they didn't
do it once, they did it twice and they said it was a mistake.
That doesn't make any sense and I've just noticed...I mean
the big island has a Mayor that's under indictment. The
political scene here on the big island is to say the least kind
of frightening because we see...it creates this environment
where it's okay people think that they can get away with
things in that gray area. As the Ethics Board, I would
expect more of a look at because what was provided was
pretty clear and yet it was still voted against. That to me
didn't make sense. So after we did a little bit of research
and we found that both people, both members of the Board
that voted against or voted down have more of a personal
relationship with Mr. Kanuha. We figured, I figured and
after speaking with some people that is a conflict of interest
in my opinion.
Ms. Kahakalau: So if the two people would've voted for it, wouldn't have
been an issue?
Mr. Anderson: Well in my opinion, the evidence was pretty clear and it
was dismissed. It wasn't even really...didn't seem like it
was even a consideration.
Ms. Kahakalau: Yeah, but that does not answer the question.
Mr. Anderson: What was the question?
Ms. Kahakalau: Would you have pursued any of this if your petition was
not dismissed?
Mr. Anderson: No.
Ms. Kahakalau: Okay. Thank you. Sir do you have anything to say to this
specific petition?
Mr. Revell: Yeah. You all know me. I've been here. Thank you for
seeing us this morning, waking up early, being here and
driving across the island. And to Drew too for being here.
I don't know the fifth time or whatever we were here. You
know I'm just...as a citizen...I'm very concerned about the
ethics of the Ethics Board. When I mean...I research
everything and I just find it a big conflict of interest for Mr.
Goodenow to have his wife in Council Services and not
29
recuse himself from this hearing. I mean you know that's
my personal opinion and you know I also think that may or
may not hamper this whole hearing here. You know to me
on the outside looking in, being that his wife works for
Council Services means that Mr. Kanuha maybe a if it
doesn't favor him, he might say...and I'm not saying he'll
do this, but this is just what conflict of interest ends up
being right. It is a conflict and I don't feel it's fair to have
somebody whether he's somebody a friend of mine that's
you know he's a friend of a friend. Or he's a friend of
somebody else. When it comes to a fair playground, I want
everything to be fair here and this is what we're here for.
You know and for you Ms. Kahakalau...Dr. Kahakalau
sorry. I saw that you were on a Board with Mr. Kanuha
and I figured you know. My uncle was a judge, Shinichi
Kimura and he was a very honorable man. And he used to
always dismiss any case that came before his bench that
involved any family member whether it was directly
involved with him or an employer or a friend. Because it
was just...you know based on he wanted to be a hundred
percent even playing ground and when I saw...found these
things out, I just was really upset that you know the Ethics
Board members to me weren't ethical.
Ms. Kahakalau: Just a few follow-up questions. So are you implying then
that Mr. Goodenow shouldn't be on the Board at all
because his wife works for the County? Is that...
Mr. Revell: No. No.
Ms. Kahakalau: So it's just this one specific decision.
Mr. Revell: Just this particular. Yes.
Ms. Kahakalau: And I am in no way related to Mr. Kanuha, so I don't know
what the family...
Mr. Revell: It doesn't have to be related...it's the fact that you were on
a Board with him and that's my point.
Ms. Kahakalau: Alright. Thank you. We've received the letters and in
terms of both Mr. Goodenow's letter and my letter
explaining why right. Is that something that they received
as well? So you folks received both of those statements.
Mr. Revell: Yes.
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Mr. Anderson: Yes.
Ms. Kahakalau: Okay. Thank you.
Mr. Adams: Madame Chair thanks very much. Just to...respond to a
couple of the comments. We I think on the Board try to
pay attention to...we talked about it in an earlier situation
just today. The idea is to see is there a necessity to create
some type of separation, some type of firewall between an
individual's personal connections. And sometimes if
you're going for a contract, the contract that they might be
going for, if it has to do with the Ethics Board, the
decisions that the Ethics Board, the members of the Ethics
Board are making. And so the rules that we have, part of
which I read from initially are intended to allow us to in a
very transparent way. Say yeah there is or there is not. In
this case you felt that there was or you feel that there is and
you bring it forward. Then this allow for the member of
the Board to come back with an affidavit. Right. Those are
all being done in a frankly in a transparent way and we're
gonna vote in a transparent way on whether how we
consider the conversation. I just would like you to keep
that in mind as we move forward here. Now, on the
comment that we dismissed...the petition. I think that
we've had two situations here, two separate petitions. So
just for clarification of the record. The first time we
considered it, I don't believe it was dismissal. I believe we
actually had an order and so it was considered and voted
on. It wasn't a dismissal specifically right. And in this
case, this is still an ongoing, continuing petition that we
will be looking at. So in both cases...it wasn't dismissed
out of hand. There was actually conversation and findings
of fact and conclusion of law that went into that.
Mr. Anderson: I was just gonna say if...please correct me, but as far
as...this was more of the ethics complaint against the
Coalition for Tobacco Free Hawai`i who stated that they
had been to probably four or five...well actually they didn't
state, but they had been because I had met them at four or
five County meetings. Where they testified and they
weren't registered as a lobbyist group. So the first
time...oh sorry that was a mistake...the second time, third
time and fourth time they knew they weren't registered.
Please again correct me if I'm wrong, but the Council or
the Board...Ethics Board said that it was a mistake and
kind of overlooked it. They overlooked it and their
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whole...the whole point of a lobbyist organization I think
the first would be to register as a lobbyist organization and
then move from there. That's what my comment was not
as far as what we're still doing with Mr. Kanuha. I
apologize I didn't clarify that.
Mr. Adams: Thanks for the clarification.
Mr. Robinson: Madame Chair if I may. I read these carefully and I think
there's...Mr. Revell and Mr. Anderson you're more or less
tracking each other as far as your objections to the service
of Mr. Goodenow and Ms. Kahakalau. Have you ever been
to a Burial Council meeting or participating in their process
in anyway? The number of people involved and how long
they go on. I don't see in the case of Ms. Kahakalau where
her service on the same Burial Council with Mr. Kanuha
would actually be any collusion or conflict or anything else.
It's just a process that we all go through and I just don't see
it. I've served on a lot of Boards and Commissions etc.
You really don't develop any kind of close relationship
with the people that you serve with because it's
just...you're there for a month. You don't see each other
and you're there for a few hours. It's not that way. In the
case of Mr. Goodenow, the fact that he's Treasurer of the
Democratic Party I don't think anyway puts him in any
kind of closer relationship with any of the democratic
politicians. God knows they have their own issues going
on amongst that. So I don't really see that, I can see your
point though about Mr. Goodenow's wife while working in
Council Services. However, if it was two employees
working together, I could see that. But an elected official
and a County employee...elected officials find that County
employees will be there forever and elected officials come
and go and so I don't see the relationship there. So I read
carefully what you had to say and I'm a cigar smoker so
I'm no friend of Tobacco Free Coalition. I read what you
had to say carefully and I just don't see it myself
personally.
Mr. Anderson: Can I clarify and I'm sorry. For the Madame Chair it was
the Board, but more specifically I can't remember exactly
but she was either the one who brought the motion forth for
Mr. Kanuha or she was the one that seconded it. So I
thought that was more a personal type. I mean out of
everybody on the Board, she was the one brought the
motion for it. I can't remember exactly.
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Ms. Kahakalau: Maybe I can explain Burial Council a little bit. I was on
the Burial Council for eight years. During that time, I've
probably did five hundred plus motions of people to be...or
seconded of people to be recognized as either cultural or
lineal descendants. None of whom or the majority of
whom I didn't know and it wasn't based on whether I knew
them or not. It was based on evidence that they brought
which was their genealogies and that's only thing that we
used to make a determination is their genealogies that they
bring to the Council that are reviewed by our staff and then
given to us. And they determine whether somebody is a
cultural or lineal descendant. So that has absolutely
nothing to do with any relationship towards the person. So
it may look alike on paper, but as I said five hundred that's
a very, very conservative number over my eight years on
the Council as far as making motions in support of that. As
was mentioned Mr. Kanuha, we were maybe two meetings
we had on the same Board. We get there in the morning,
we're there all day, but he sits down here and I sit over
there. We did not have one personal conversation. I know
a lot of people and if I say I know somebody I know them,
but in this case I can honestly say I do not know Mr.
Kanuha in any way beyond the fact that I've seen him here
and there and we sat somewhere here and there which was
this Council. It is a good... I think for me a reminder that
no matter how petty it appears to me, to be more up front
on disclosing any kind of...oh I sat on plane with them
recently, but that's pretty much how petty it has to be if
we're gonna eliminate all perception of conflict of interest.
Mr. Yoshimoto: Board members I want to make sure we're talking about
Petitions 2015-15(a), 2015-18 and now we're also talking
about 2015-15(b) and 2015-17 so the record can reflect that
and the Boards can confirm that that's what we're doing.
We're gonna take separate motions for each one, but just
Mr. Adams if you help us here.
Mr. Adams: Absolutely that's what we've morphed into Counsel.
Mr. Yoshimoto: Okay so just so it's clear. Okay because we're kind of...
Mr. Robinson: We became a montage.
Mr. Yoshimoto: Exactly. We became a montage and some Board members
acknowledged that and petitioner acknowledged that too.
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We're talking about all of them together. Just for easy of
discussion. Okay.
Mr. Robinson: If I could I'd like to make a motion then on Petition 2015-
15(a) and 2015-18 regarding Mr. Goodenow. Correct?
Ms. Kahakalau: Yes.
Mr. Robinson: That we find no conflict of interest for Mr. Goodenow's
participation in this process.
Mr. Adams: Just to ...I would second that and I would just to clarify the
record. We did have a motion, it was on the floor, but we
did not have a second to that motion because we then went
in terms of procedure to having the opportunity for the
petitioners to give testimony and then to answer questions.
So this is a...so that motion died...and this is the correct
motion.
Ms. Kahakalau: That was seconded by you.
Mr. Adams: Right.
Ms. Kahakalau: Do we have any further discussion?
Motion and Vote: Mr. Robinson moved that there is no conflict of interest. Mr. Adams
seconded the motion. Four members voted aye. Mr. Goodenow abstained.
c. Petition No. 2015-15(b) & 2015-17: Review of petition alleging that a Board
member was 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 she reviewed a petition that could be a conflict of interest.
[Continued from last meeting]
Ms. Kahakalau: Moving on to Petition No. 2015-15(b) and 2015-17.
Mr. Robinson: Again Madame Chair I'd like to make a motion that we
find no conflict in the service of Ms. Kahakalau in
participation in 2015-10.
Mr. Adams: Second.
Ms. Kahakalau: Any further discussion in regards to that?
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Mr. Yoshimoto: Madame Chair. Just to acknowledge for the record that the
Board did review your correspondence dated March 20,
2016.
Ms. Kahakalau: Yes.
Mr. Yoshimoto: Everyone acknowledges that? Okay. Any further input
from the petitioners on that or?
Ms. Kahakalau: Thank you. Alright.
Motion and Vote: Mr. Robinson moved that there is no conflict. Mr. Adams seconded the
motion. Four members voted aye. Ms. Kahakalau abstained.
Ms. Kahakalau: Thank you gentlemen. I appreciate it.
Mr. Adams: Actually Madame Chair they might as well stay where
they're at.
Ms. Kahakalau: Alright.
Ms. Adams: I move that we remove from the table 2015-10.
Mr. Robinson: Second.
*Minutes for Petition 2015-10 continued under 6(a).
e. Petition No. 2016-02: Review draft informal advisory opinion regarding the
petition from Naomi O'Dell, to determine compliance with Section 2-83
(c)(1) (Fair Treatment) of the Code of Ethics because her husband is an
independent contractor who bids for County projects.
Mr. Adams: Madame Chair if I might just ask a question of Counsel.
Ms. Kahakalau: Sure.
Mr. Adams: This vote that we take on the written, is this our official
vote or is the official vote that we took...the one that we
took last meeting?
Mr. Yoshimoto: The one that you took last meeting. That was your
decision.
Mr. Adams: So this vote is simply what?
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Mr. Yoshimoto: You can...this vote is an opportunity to make any changes
to the proposed informal advisory opinion. So you can
change...make changes, suggestions or what not and then
vote on whether you approve it or not.
Mr. Adams: Right.
Mr. Yoshimoto: So this is the Board's opportunity to clarify whether the
proposed opinion that I drafted is accurate or is what the
Board wants to say.
Mr. Adams: Okay. I mean so for the purposes of discussion, I was the
No vote. If I'm voting aye on this, am I voting for the
content of it or am I just saying yeah that's an actual
representation of the decision that we made.
Mr. Yoshimoto: Yeah the second one, Right.
Mr. Adams: That's what I'm asking.
Mr. Yoshimoto: Yes. When you're voting on this, you're approving this
order as it stands written. That it's an accurate reflection of
what the Board's decision was or opinion was, right. So if
you have....or disagree or if you want to file your own
opinion and then vetted through the Board...you can do
that too as sort of like a dissenting opinion... you can do
that as well.
Mr. Adams: Right. I could always do a dissenting opinion on it. Right,
although once we vote, I think we're done.
Mr. Yoshimoto: Right so if you want to continue this matter because that's
your right a Board member, then that's fine because if you
want the record to reflect your opinion in your own words
that's fine.
Mr. Adams: Although I think it's already in the order. So...
Mr. Robinson: Madame Chair. I'd like to make a motion that we accept
the informal advisory opinion on Petition No. 2016-02 as
written.
Mr. Goodenow: Second.
Ms. Kahakalau: Alright any further discussion?
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Mr. Adams: I guess my concerns are not necessarily included. I would
ask for continuation of this particular opinion to the next
meeting to be allowed to provide a dissenting opinion that
would be part of this opinion.
Ms. Kahakalau: How does the person who made the motion feel about
that?
Mr. Robinson: You want to continue it to the next meeting so that you can
write a...
Mr. Adams: Why I voted no.
Mr. Robinson: Why you voted no. I wouldn't have an issue with that.
Ms. Kahakalau: So would you like to withdraw...
Mr. Robinson: I withdraw my motion.
Mr. Goodenow: Actually your motion could be pending, you just continue
and when we come back...it's back to his motion.
Mr. Robinson: Okay.
Mr. Goodenow: I'll second the continuance. Vote on the continuance.
Mr. Robinson: With your dissenting opinion.
Mr. Adams: Yeah. It's continued...the motion is to continue to next
meeting incumbent on me to actually get the thing written
and then to the staff right.
Ms. Kahakalau: Okay. So are we clear on the motion. So we're voting for
a continuation basically of 2016-02.
Motion and Vote: Mr. Adams moved to continue approval of the order pending his
dissenting opinion order to be included with the order. Mr. Goodenow seconded the
motion. All members voted aye.
f. Petition No. 2016-03: Review draft order dismissing petition by Lanric
Hyland alleging that County employees are using County funds to pay for
travel and per diem expenses in violation of Section 2-80 of the Code of
Ethics and Section 14-2 of the Hawaii County Charter.
Mr. Adams: I move acceptance of the petition.
Mr. Goodenow: Second.
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Ms. Kahakalau: Any discussion in regards to this?
Mr. Adams: I would just note that we received correspondence that we
filed earlier that related to this petition. I am not inclined to
ask for reconsideration as a part of this. Obviously that
would someone else's determination if they decided to do
that. I took what I thought was a pretty hard look and try to
be as fair as possible in looking at both the petitioner's
concerns as well as the state of the art as frequent flyer
miles are considered when it comes to our County
employees. So I feel comfortable with this petition
reflecting our views on that matter.
Ms. Kahakalau: Any further discussion?
Motion and Vote: Mr. Adams moved to accept the order. Mr. Goodenow seconded the
motion. All members voted aye.
Ms. Kahakalau: We're going into executive session, is that correct?
Motion and Vote: Mr. Adams moved that we go into executive session so that we may
consider the evaluation, dismissal or disciplining of an officer or employee of the County of
Hawaii, where considerations of matters affecting privacy will be involved and to allow us
to consult with our attorney on questions and issues pertaining to the Board's powers,
duties, privileges, immunities, and liabilities and for consideration of the executive session
minutes of March 8 and review of Confidential Financial Disclosure Forms as listed in the
agenda. Mr. Robinson seconded the motion. All members voted aye.
11:43 a.m. The Board left regular session and took a brief recess.
11:54 a.m. The Board returned from brief recess.
* * * * *
12:30 p.m. The Board returned to regular session.
6. VOTING ON EXECUTIVE SESSION MATTERS
a. Review of the executive session minutes of March 8, 2016.
Motion and Vote: Mr. Robinson moved to approve the minutes of March 8, 2016. Mr.
Goodenow 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.
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Ms. Kahakalau: Just a report that we did review forty-eight Confidential
Financial Disclosure Forms and all but three...Is that
correct? Okay so five. Numbers 14, 16, 33, 46 & 47 were
returned for clarification and follow up. All the other forty-
three were approved.
Mr. Yoshimoto: Madame Chair you're going to vote to accept. Make a
motion and accept all those except the ones that you just
mentioned.
Motion and Vote: Mr. Goodenow moved to approve the forty-three financial disclosure
forms. Mr. Adams seconded the motion. All members voted aye.
7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE
AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF
HAWAII
Mr. Adams: Madame Chair if I may. I'd like to quote from the minutes
of March 8, 2016, page 27. "Mr. Adams says if I might
Madame Chair I would say that we can move on from item
7. I probably said last meeting that I had something for this
meeting, but I spoke to early, but the idea is to have
something for the next meeting."
Ms. Kahakalau: And that's your final answer?
Mr. Adams: That's my final answer.
Ms. Kahakalau: Alright we are moving that discussion to next time. I don't
think we need a motion for that right? Okay.
8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS
MONTHLY MEETING SCHEDULE.
Ms. Kahakalau: So far we've overcome the challenges. I'm not quite sure if
we just do this on a meeting by meeting basis at this point
and time, because it is in the Code and we just do the best
we can until we come to a place where there is a conflict as
far as meeting is concerned. Is everybody okay with that?
Mr. Goodenow: Do we...so the next meeting is May 10? And that's on a
Tuesday? Do we have to every time still suspend the rules
or did we cover that last time? Going forward respectively.
Mr. Adams: Good question.
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Mr. Yoshimoto: That's up to the Board. I would do it every time so that it's
clear that it's still ongoing.
Ms. Kahakalau: So we are changing our May meeting from the regular
scheduled day and date to Tuesday, May 10 at 10:00 a.m.
here at the Council.
Motion and Vote: Mr. Goodenow moved to suspend the rule concerning the Board's
regularly scheduled meetings. Mr. Adams seconded the motion. All members voted aye.
9. ANNOUNCEMENTS
Ms. Kahakalau announced the Board's next meeting on May 10, 2016 at 10:00 a.m. at the
Hawai`i County Building, Council Chambers, 25 Aupuni Street, Hilo, Hawai`i 96720
or at another location to be determined.
10. ADJOURNMENT
Ms. Kahakalau adjourned the meeting at 12:40 p.m.
Respectfully submitted:
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Emily Hir y a, Se et ry
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