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HomeMy WebLinkAbout2016-07-12 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Tuesday, July 12, 2016 10:05 a.m. to 1:40 p.m. Hawai`i 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 Gary Murai, Special Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau called the meeting to order at 10:05 a.m. Board members please go ahead and introduce yourselves. Rick Robinson, Ken Goodenow, Pili Kalele and Doug Adams. Thank you. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We have one public statement here in Hilo. Is there anybody else that wanted to sign up, but didn't get a paper? Do we have any public statements in Kohala? Ms. Sweeney: Aloha Chair...we have one speaker for Mr. Hyland and are you speaking publically...Karen is...Karen you're speaking for Mr. Hyland. Ms. Martinez: Am I speaking for you? Mr. Hyland: Yes. Ms. Sweeney: Just one speaking for Mr. Hyland, otherwise no other testimony. Ms. Kahakalau: Alright. Well if we could get started with the Kohala testimony first please. If you could please state your name and the agenda item that you are addressing today. Mr. Hyland: Five something. 1 Ms. Martinez: We have to look for that. Ms. Sweeney: I believe its twenty-fifteen three. Ms. Martinez: Twenty-fifteen three. Ms. Kahakalau: Thank you and your name please. I) Karen Martinez (Kohala) signed up to testify on agenda item Sa, Petition No. 2015-03. Ms. Martinez: Karen Martinez. Ms. Kahakalau: Alright. Go ahead Ms. Martinez. Ms. Martinez: Good morning to everyone whose there. I'm enjoying this very much because it's a process near and dear to my heart. There are two relationships that are institution on this planet and we are privy to both. One is we just have one on one with each other and the second one is that we're involved in this delicate balance of democracy. It came about because people abused power. In a relationship, let's say a marriage...once somebody doesn't do what he supposed to and distressed and squirmed...it's really hard to...sometimes impossible to regain that trust. And then democracy is requires all of us to honor it and respect it and trust it. Trust the people that we put in positions to represent us and of course this commission now...we don't trust you. We want to, but we don't. We have no doubt about why we don't ...I think however and I'm hoping however that the members on the Commission now can think about how they're going to feel about themselves in the future because they can live up to the public trust. You folks are the deciding factor in County government because we come to you when there's a problem when trust has been broken. And it's time to restore that trust...Mr. Goodenow you have broken our trust and we know it...and it's wrong and you have to live with that. And if you are a man of conscience and I hope every member on this Commission is an individual of conscience. You have to live...we all have to live with what we do and what we don't do. You contaminated this Commission now...we cannot trust you...there's no way every to trust you...you need to rectify that...you need to give this Commission a chance to do what we expect it to do as voters, as residents on the Big Island. We need to have a group of people that we can turn to and say hey...straighten this out, we trust you, please do your job. I think there are enough people who...on the Board who can do that and I hope you do do it. Mr. Goodenow needs to recuse himself from any voting that has to do with the Mayor. We know 2 there's a lovefest there and he needs to resign. He really needs to resign...his arrogance is just really staggering. So thank you for listening...Aloha. Ms. Sweeney: Chair...is this a timed testimony? Ms. Kahakalau: Yes it is. Ms. Sweeney: It is a three minute time testimony? Ms. Kahakalau: Yes...all of our testimonies are timed. Ms. Sweeney: Thank you. It's verified. Ms. Kahakalau: Thank you very much. Here in Hilo we have Corey Harden. Would you please step up and also please state your name and the agenda item that you are testifying for. 2) Corey Harden (Hilo) signed up to testify on agenda item 5a, Petition No. 2015-03. Ms. Harden: Corey Harden speaking and I think it's 5a on Kenoi and the P-card under the unfinished business. Good morning Board and I want to thank you all for your volunteer service. In this situation...we have something where tax payer money was used to support the sex trade and perhaps a biggest County scandal since the police promotion scandal back in 2003. If this doesn't call for action by the Ethics Board...you gotta ask what does call for action. The Board could act based on what you know so far and you could do more if needed after the trial if Mayor Kenoi is not out of office...out of your reach by then. I'm extremely disappointed that the last Ethics meeting, Ken Goodenow seemed apologetic about Kenoi's lawyer having to come back for another meeting and I don't really feel that the Board owed his lawyer or Kenoi any apologies...It's more the other way around. I'm also concerned that Mr. Goodenow said that it makes no difference if there's no ethics decision til November or December, but I'd say that it's a huge difference like if the Board...which is to recommend Kenoi lose his job cause he's going to be gone pretty soon anyways. Mr. Goodenow has expressed concerns about Ethics Board action effective Kenoi's right to a fair trial, but if the Board does little or nothing...this implies that the scandal wasn't so bad and this affects the public's right to a fair trial over miss-use of public money. I'm also disturbed by the Board's lack of action on a past case...the Alameda case...after revelations that contrary to testimony...Kenoi was involved in the hiring. So these two 3 situations lead me wondering what kind of offense it would take to generate action by this Board. And so I would hope that you will take action. Thank you. Ms. Kahakalau: Thank you Ms. Harden. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF May 10, 2016. Ms. Kahakalau: Since we have no further testimonies morning, do I have a motion to approve the session minutes of May 10. Any discussions? Motion and Vote: Mr. Robinson moved to approve the minutes. Mr. Adams seconded the motion. Members Goodenow, Adams, Robinson and Kalele voted aye. Ms. Kahakalau recused herself since she was not at the meeting. 4. NEW BUSINESS a. Review of Gift Disclosure Statement received from the following County officer or employee. (1) Dennis M. Wong Ms. Kahakalau: Basically what we got here is...we got three gift disclosure statements and I'm assuming we're just receiving them. Do we need to do a motion about that? Mr. Yoshimoto: Yes...Madame Chair like you would do with the other statements...just have a motion to receive them, seconded and vote on it. Ms. Kahakalau: We do one at a time? Mr. Yoshimoto: Yes. Ms. Kahakalau: Okay. Alright so do I hear a motion to approve the gift disclosure statement of Mr. Dennis Wong? Mr. Robinson: Motion to approve. Mr. Adams: Seconded. Ms. Kahakalau: Do I need to state what the... 4 Mr. Yoshimoto: Yes...I would pass it around to make sure all Board members have reviewed it and then you can make a decision. Ms. Kahakalau: I'll send all three at one time. So we have a gift disclosure statement of Mr. Dennis Wong for a gift in the value of$150. Can we do the...I'm asking one more time...sorry cause I don't if we noted who made the motion. Mr. Yoshimoto: It was Mr. Robinson...seconded by Mr. Adams. Ms. Kahakalau: All in favor of approving that gift disclosure statement. Any discussion? Mr. Adams: This is acceptance of it right...we're not approving it. Ms. Kahakalau: Accepting. Any discussion? Motion and Vote: Mr. Robinson moved to accept Mr. Wong's gift disclosure statement. Mr. Adams seconded the motion. All members vote aye. (2) Mark Yoshioka Ms. Kahakalau: Our next disclosure statement is from Mark Yoshioka also in the amount of$150. Do we have a motion? Mr. Adams: So moved. Mr. Robinson: Second. Ms. Kahakalau: Any Discussion? Motion and Vote: Mr. Adams moved to accept Mr. Yoshioka's gift disclosure statement. Mr. Robinson seconded the motion. All members voted aye. (3) Greggor Ilagan Ms. Kahakalau: Our third one is from Greggor Ilagan and that's in...one is for $109 and the other one is for$3,209.37. Motion? Mr. Goodenow: Motion to accept. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? S Motion and Vote: Mr. Goodenow moved to accept Mr. Ilagan's gift disclosure statement. Mr. Robinson seconded the motion. All members vote aye. b. Petition No. 2016-06: Request for an informal advisory opinion from a spouse of a County officer or employee, to determine whether there would be any conflict of interest with him being able to bid for County of Hawaii projects excluding the department in which is wife is employed by. Ms. Kahakalau: Is the petitioner present? Alright. You have a right to request a closed hearing...would you like a closed hearing? No. Alright. If you could please state your name and let us know a little bit more...anything you want to emphasis in addition to the petition. Ms. Gloor: Okay. My name is Leana Gloor. I work for the Planning Department, Long Range Division. I've worked there since May 2015 and previous to that I was in a business with my husband as a planner and he's a civil engineer. But when I started working May 2015...I'm not taking...not actively taking planning jobs. He is still continuing with his engineering and so this comes up now with the new rule. As whether he can continue to...primarily he's been a sub-contractor for different contracts with the County, but he may at some time be a lead or seek to be a lead entering projects for civil engineering. So we just wanted an interpretation that this...whether this was a conflict. He does not take or has not soliciting contract for the Planning Department. It would be other departments. Ms. Kahakalau: Do you have any questions? Mr. Adams: Just so that I understand...in the petition it appeared to me that this was a question about a general applicability. Meaning there's not a specific contract that you're looking at right now that you are making this petition about. Is that right? Mr. Gloor: That's correct. Mr. Adams: Thank you. Ms. Kahakalau: Alright. Do we have a motion in regards to this petition? Mr. Goodenow: I have a question for Corp. Counsel. So we are now...it is after July 1 correct and so we're under the new code language. And under that language...correct me if I'm wrong,but does that 6 require someone if for a specific contract when they come up...to have to come to our body. Mr. Yoshimoto: In terms of a specific contract...yes. Mr. Goodenow: So even though we yes to them now...ifhe does go outside...so not he...Mr. Gloor. If Mr. Gloor were to go out and submit a bid, he would have to come back anyway? Mr. Yoshimoto: That depends on what the Board decides here today...because in the past as I recall the Board when someone asked a general questions...the Board said come back and see us when you have a specific question to ask. I'm paraphrasing, but that's essentially what happened and so I...Mr. Adams if you want... Mr. Adams: We're having a discussion without a motion. So I would like to be able to have this discussion within the motion. Mr. Yoshimoto: Yes. Mr. Goodenow: Alright. Mr. Robinson: I'd like to make a motion to approve as no finding of conflict. Mr. Goodenow: I'll second that motion. Mr. Yoshimoto: Okay. Mr. Adams: That's exactly my question...that's why I asked a specific question that I did because this is a request for a blanket approval essentially. And my reading...my reading of the new ordinance and how it fits into the code. I'm not sure that is what it says to me...I think it says more specific contract is what it ask for. Believe me...I'm not sure I'm happy about that, but I think that's what it says. And so the ability to take in for example here what the Gloor's are asking us to do to be able to give an approval on a request for general applicability. I find that hard given the wording of the ordinance. Ms. Kahakalau: Ms. Gloor. Ms. Gloor: When I took the Ethics training from Counsel, part of that question that was raised in that...is one of the things (inaudible)...beyond the professional services and it's not clear what way (inaudible)..(microph.one not turned on during testimony) 7 Mr. Goodenow: Madame Chair. You know I'm very sorry...we have this other pending one from before as well that's...the other matter on the agenda so can't really discuss it, but there's another one. I mean...do we need an opinion from Corporation Counsel just so we're clear on it. Should we be the ones to be making this legal call...this interpretation of the statute? I know we do make judgment calls, findings of fact kind of thing. Does something fit the language, but something like this more...is more of an interpretation I think that maybe we should get a written opinion. I don't know what my fellow Board members think of that and I don't know how that affects you guys. Cause I don't want to in any way if you're planning to get on a list next week or something then I'm fine with moving forward for now. But I...maybe this is something that should be continued and we need to educate ourselves as Board members, we have newer members and really see what we're doing. Thank you. Mr. Yoshimoto: Madame Chair. So if the question is the applicability of the ordinance as it is now in effect. It is our opinion that this ordinance applies to competitive bids and proposals in that realm specifically, but it does not apply to professional services and so. It doesn't say that...it just says competitive, sealed bids and proposals. So my interpretation is that's what it applies to...so this particular situation involves professional services and we would say that it's not within the realm of this particular statute. Mr. Goodenow: Well thank you. I should have just asked you the question. So what does that mean though...but if they do go out for a I don't know...RFP or some kind of bid for a project...they would have to come back Mr. Yoshimoto: They would have to come back is what we would recommend. Mr. Goodenow: I see. Mr. Yoshimoto: Then it would be specific to that situation. As the ordinance is worded...if that situation...John or Jane Doe gets that contract then they don't have to come back for that particular contract if it's done on a recurring basis. However, for each situation that comes up, our recommendation would be come forth because each situation could be a little bit different right. So I'm not 8 clear...cause if this is for professional services then I think it would be outside the realm of the statute. Mr. Gloor: Just to clarify. Just a couple of quick points on that. Primarily, professional services so at this point its July...it's time for the new list so there would be an application to be on the list for professional services. At which point the County will go through and evaluate the qualifications and select the best qualified in that process for procuring professional services. Occasionally, also...there's a contract called Design Build contract in which I wouldn't be the primary contractor. I would be a sub-contractor under a construction contractor. So for instance, if they said that we need a new culvert at this intersection...they may hire Isemoto or one of the local contractors who in turn has to hire an engineer to do the design portion of that. So those are the two capacities that I could imagine functioning with some relationship to the County. And I'm not sure as a sub-contractor to a prime if that falls into this code. Mr. Goodenow: I don't know if you want to answer that...sorry... Mr. Adams: I would say that it appears to me and I don't have the history on this, but it seems to me that there is a separation...there's a go between on the sub-contractor. You are not the...you are not contracting with the County...you're contracting with the contractor. The contractor's contracting with the County if I could say contracting anymore times. And so that go between makes all the difference as far as the code is concerned for me. As far as the professional services...I think it's...I would...not that I would...have to concur with Counsel, but I think I would because it's pretty clear that we're talking about contracting. So being able to be on a list doesn't mean I just would...I would just qualify that when you go to 2-84 in the code...conflicts of interest. That still relevant to getting on the list...meaning that you can't have...you're not supposed to have any type of conflict of interest to be able to get on the list because "No officer or employee shall take any official action"...you know affecting a business or other undertaking in which that officer or employee has a substantial financial interest. The deal is keeping...and then there's the other readings beyond that. The idea is...you're not going to put yourself on that list if there's a conflict anyway...that's not the point. The idea is that when it...were the Board is gonna take a 9 look at it is when there's an actually contract that you would be involved in. Ms. Kahakalau: Go ahead Mr. Goodenow. Mr. Goodenow: Just for purposes in preparing the opinion...I would just like all of Corp. Counsel's...what Mr. Yoshimoto has stated to be incorporated. As my testimony that I support that and I think that's reasonable, I think that's a good approach and if we could incorporate that into the opinion. I think we're good to go maybe and just say yes it's not...but you understand...it will explain in the written opinion that if something does come up...you may have to come back. Alright, thank you. Mr. Robinson: If I could Madame Chair. When read this and then I looked at 2- 83 and then I looked...fair treatment and then I looked at "c" and it says any officer or employee of the County may contract for goods and services provided that...then there's two items. One is that you make full disclosure of that in your application process and secondly it says the officer or employee has obtained an opinion from the Board that there is no conflict of interest resulting from the officer or employees position with the County. A Board opinion shall continue to satisfy this requirement until a change occurs in the financial interest or role of the County officer or employee, or the officer or employee's affected immediate family member. So I read this and then I read your application and I thought that fit within that that you're asking this Board that there's no conflict and you're gonna make full disclosure in any application or response to a RFP. So I just confused now...if we want to take it in another direction. I thought it was pretty clear for me. So that's just me. Mr. Goodenow: I don't know...I agree with Corp. Counsel that getting on the list and all that that's not...I mean you do it once right...it's gonna continue forward or if let's say he has a specific project...I don't know...doing improvements at certain...doing maintenance or something at buildings. Well you do it once...it's gonna continue on, but if he went for something new...then he would have to come back and that was I guess what Corp. Counsel opinion. Mr. Yoshimoto: Right. In the past that was the position taken by the Board as I recollect right so. We're just being consistent, but if the Board 10 wants to further define that that's up to the Board...that's the Board's authority to do so. Mr. Adams: I would only comment that as I read "c (1) & (2)". That was how I was reading it. It wasn't really until I got to the bottom of the new portion of the ordinance where it's specifies that a contract shall be void if an officer or employee fails to comply with these disclosure requirements etc. And because of the way that that's specificity of talking about the contracts specifically. That colored the reading of my stuff above it so that it was...it wasn't a general applicability...it wasn't an ordinance...general applicability...it was more we're talking about these specific contracts and when I looked at your petition. My concern was that as I read it, I was reading in three... I may like to provide professional services as a primary consultant to the County of Hawaii. And I saw that as...and then the last line that you'd likely could offer or the departments...I could offer a professional consultation services...those are the departments could be Parks & Rec, Environmental Management and Public Works. I wasn't sure that I understood that it was being put on the list that you were talking about. So if I could...an additional question is for my edification is if you get on these list, you are then identified by one of these departments...not the Planning Department obviously. Then is that result in a contract or is a contract already prepared as a result of you being on the list. Mr. Gloor: I can answer that question. The way it works...is you submit on the list is just a statement of qualifications. So each department has specifically identified a group of work...environmental engineering, civil engineering lots of different items are on there. And so you submit your statement of qualifications, they evaluate that and if they find that you are qualified. You'll get put into a box with everybody else who's submitted and was defined as qualified. And then in the event that they need those services throughout the course of the year, they will go back into that list and select several of them to evaluate to select and then the most qualified for that specific project. At that point you begin contract negotiations. So once they've selected...made a selection and your firm is selected then you'd sit down with them and decide whether you have the time and it fit your schedule. That you can negotiate 11 a contract price, but again it is professional services. It's not a bid...there's no...it's not based solely on price. Mr. Adams: But it is a contract with the County at that point? Mr. Gloor: Absolutely. Mr. Adams: Which would mean as I'm understanding it then might see you or whoever's selected at that point? Mr. Gloor: So just to clarify cause maybe I've miss understood, but it sounds like this code didn't apply specifically to professional services. Mr. Yoshimoto: That's our opinion and it's for the Board to further articulate that if the Board agrees with that opinion. Mr. Adams. Mr. Adams: So...my understanding of your statement or Corp. Counsel's statement was for individuals that are going to be placed on the professional services listing. That that's not a contract action between the County and the private individuals or private companies are going to be on that list. But once folks are selected off that list by departments of the County to then engage in negotiations with the County for those services and then be paid for them under a contract. That's then a contract for good and services to the County and if I'm reading that... then that's a contract for goods and services with the County agency...that then opens the door to this ordinance in our purview of it. Mr. Yoshimoto: Right so that's an option the Board can take if the Board should so decide. The problem with the ordinance is it seems very contract specific as you mentioned member Adams right. As far as the applicability, we're threading on new grounds so it's up to the Board to interpret the statute and if there are problems with the statute...perhaps further clarification from the Council. It's just how far you want to take it or what's a reasonable interpretation of the statute as written. So I'll leave it up to the Board discussion, but that is our opinion. Mr. Robinson: Madame Chair if I may. I just would like to see some level of clarity here. Where as in this case you have a husband and wife...wife works for the County...husband is provides for professional services. It seems that they followed the letter in asking for clarity from the Ethics Board by full disclosure in 12 essence. You'll be making full disclosure in any contracts as well. So it seems that that's what the intention is and we have to give some degree of clarity in the interest of full disclosure. You've disclosed it all...it's all in the public record. I just don't how we get back to the contract thing. Mr. Adams: If I could ask Ms. Gloor a question. As a land use planner, what's your connection with the other departments? So we can talk specifically about these for example...the ones that were identified in the petition...Parks & Rec, Environmental Management and Public Works. Do you have any connection in your work with those departments? Ms. Gloor: In the long range division, primarily my project is the Hamakua Community Development Plan. So at times I may communicate with the other departments. I also work on other aspects...it could be the general plan. So at times I communicate with those departments about their...say infrastructure issues and such. So there are times where they overlaps with something that might be engineering, but not on a direct contract basis ever. I don't make decisions about upcoming contracts or in that way guide those kinds of improvements as such. Mr. Adams: For discussion purposes. This becomes a gray area for me. We're now gonna talk general. We're not gonna talk you. When there is a situation where you have an officer or employee of the County and their engaged in work that is collaborative with other departments within the County which is what you'd like to see basically. But at the same time, we have this situation where you have someone who is a family member as defined by the code. In the private world, you want to also engage with the County as a contractor. In the past, I've tried to see where is the...where's the barrier...where's the firewall...I guess I've used as a phrase to ensure that we are...well to ensure that there is a bright line between what's happening with the County officer or employee and what's happening with the family member contractor. I'm concerned about these gray areas messing up my very nice firewall and as a result I'm more likely...given the new code that we have to side on the side of a firewall then a gray area. Ms. Kahakalau: Thank you. 13 Mr. Goodenow: Thank you. As I started this conversation...maybe this something that we need to have a written opinion...maybe some discussion in executive session. I mean how firm are...our... not statute...how firm our ordinance is right. I'm willing to do that...I mean you said that the list comes out...I think you'd have any ethical problems if it's pending right and given this discussion. I mean...but I tend to side with Corp. Counsel at this point to be honest and my fellow member here. But I appreciate given the fact that this a new ordinance we need to be very careful...we may need to have some written input and more questions. Maybe that's how we should go. One last thing, I did want to ask the applicants though. I mean...as I understand it...you're a planner and let's say so...the Hamakua Community Development Plan...and so you know the plan might be we want a road or something right and so you may give advice as to say oh yeah from a planning prospective that's a good idea because there's houses here...there's a store here...something like that...just to over simplify. And then the department say and you have no input after that point right. The department then goes out and says hey lets go out for bids and build this road. And they go out and pick somebody. There's no...that's the...the only connection is that you had this...that you gave advice as to planning in the department. Ms. Gloor: Absolutely. Mr. Goodenow: That's a correct characterization? Ms. Gloor: That's correct. As far...the plan once I might make some recommendations as far as DPW actually go into contract or out to bid. I would have nothing what so ever to do with that and I wouldn't even necessarily know about it. Mr. Goodenow: It's not like he does a special kind of work. Like we need these special concrete grass barriers and only he knows how to design it. There's nothing like that. Ms. Gloor: Right that's correct. Mr. Goodenow: Thank you. Ms. Kahakalau: Corp. Counsel. 14 Mr. Yoshimoto: So Madame Chair if the Board would want to go into executive session...I'm prepared to discuss this matter further regarding the legalities. Ms. Kahakalau: Is that something anybody would like to do? Mr. Adams: It's not necessary for me. Ms. Kahakalau: Thank you for the offer. Mr. Goodenow: I mean I'd like to know...could we be sued if someone says hey the statute didn't apply to me and now you say I violated the Ethics Code because I'm on a list and it didn't say I needed...it doesn't say that I'm supposed to...the laws vague, unclear...I mean...are there questions like that...that's what I was gonna ask. I have to leave at eleven so I have no excuse to prolong our meeting. I'm sorry. Ms. Kahakalau: I have to say I'm clear on the contract part, but I am not what you said based on the professional services which then result in a contract and the statute clearly says contract. That confuses me to be perfectly honest because contract means contract. They cannot mean contract one way and then contract another way. I don't understand how that can be...I feel if the professional services result in a contract then that contract needs to be treated the same way as any other contract based on how I read the statute. So that's my interpretation, but if somebody can explain it to me differently. I would certainly be open to reconsidering my opinion, but that's the only logical conclusion that I can come up with at this point. Mr. Robinson: Can I make a motion here? Ms. Kahakalau: I think you already made a motion that we would approve...right. So we have a motion and a second to approve this. However, this is a general sort of...general question and that we're not approving any specific contract which the way I'm reading the statute means that there is a specific contract you would still have to come in front of us. So that's the way I'm reading it. If somebody else reads it differently, please let me know. Mr. Adams: So if we...to take the motion...the motion is to approve the petition. That then says that we require that everybody...because 15 we're approving it and not dismissing it. This then requires that everybody who's asking to be put on professional services list needs to come in front of us...right...because we're approving it. We're dismissing it, we're saying this is not in our Kuleana...it's not in our jurisdiction to handle this because what they're doing is they're trying to go on the professional services list. It's not a contract item...right? Mr. Robinson: As I understand it that would be for...not everybody that wants to go on a professional services list, but everybody that would have a potential for a conflict because...as worded here...an officer or employee of the County has an interest in a business which is going on a professional services list. Not everybody on the professional services list. Mr. Yoshimoto: So Board members what I would recommend is the Board further define what the motion is approving and not approving because this is an opportunity for the Board to basically set precedent for what the interpretation of this new ordinance is right so. So I think Mr. Adams is raising good points...you know what are you exactly approving and not approving so to speak. Mr. Adams: If I vote to...if I vote in favor of this motion...I'm doing it under...with the understanding...me...I'm doing it the understanding that we're not talking about a contract action here. That we're talking about someone going on the professional service list and making sure that in doing that...that they are okay with...as far as the conflict of interest items go. I'm not sure that it's necessary, but that would be my understanding of why I vote yes. If this...I'm not voting yes as a matter of this being a request to say as a matter of general applicability...I can go forward...I'm not doing that, but I am saying yes if it is to be put on a professional services list. Mr. Goodenow: I would like to move that we go into executive session for the purposes of discussing with our Counsel regarding the liabilities and legal matters. Especially as it pertains to advice from Corporation Counsel on behalf of the County as...I'd like to discuss that...consult with our attorney. Ms. Kahakalau: Do we have a second for the motion? Ms. Kalele: I'll second. 16 Ms. Kahakalau: So we will go...did you have a comment? Any discussion? Motion and Vote: Mr. Goodenow moved to go into executive session. Ms. Kalele seconded the motion. All members vote aye. 10:48 a.m. The Board left regular session. * 11: 33 a.m. The Board returned from executive session. Ms. Kahakalau: Okay. So we're back in session and we have a motion for approval and a second for approval of Petition No. 2016-06. Do we have any additional discussion? Mr. Adams: Yes. Madame Chair if I might. For the purposes of discussion. Our understanding of...let me re-phrase that. My understanding of the new ordinance is that it refers specifically to invitations for bids and request for proposals. That there are other methods of procurement within the County procurement system that this particular 2-83(c) is not specifically talking about. There are other elements of the County Ethics Code when we're talking about potential conflict of interest that do address those, but that "c" is not specifically associated with that. Your petition as I understand it is related specifically to professional services. The desire to place yourself on professional service list associated with these other departments other than the department of planning. Is that accurate? Mr. Gloor: That's correct. Mr. Adams: And so given that...it would be my intention to support this motion with that understanding that we're talking about this narrow fact pattern and my understanding of the new ordinances impact on your fact pattern. I should also say that in relation to the other elements of the Code that for me the fact that there is a firewall element here that when you answered the question from Vice- Chair Goodenow about your...meaning Ms. Gloor. Your involvement as County Planner with these other departments that there's a timing piece to that when you're involved and that the involvement then of Mr. Gloor in your involvement as a consultant or as a sub-contractor at some point. Let me not mess that up just as a contractor consultant would be at a different timing...there 17 would be a different timing to your involvement with these other departments. Mr. Gloor: Yes. That's absolutely correct. Mr. Adams: Right so for me there's that...that helps me with the firewall there. Thank you. Ms. Kahakalau: Alright. Do we have any further discussions? Motion and Vote: Mr. Robinson moved that there is no conflict of interest. Mr. Goodenow seconded the motion. All members voted aye. Ms. Kahakalau: So the motion is carried, but with that comment that it really only refers to IFB's and RFP's. Thank you very much. Mr. Gloor: Thank you very much. c. Petition No. 2016-07: Request for an informal advisory opinion from a County officer or employee, to determine whether there would be any conflict of interest with an employee's spouse doing key and lock services for the Office of Housing & Community Development (OCHD). Ms. Kahakalau: Are the petitioners present? Could you please come forward? You also have a right to a closed hearing. Would you like to request a closed hearing? Ms. Akiyama: No thank you. Ms. Kahakalau: Alright. Is there anything you'd like to state in addition to what's in your petition or anything that you'd like to emphasize please? Ms. Akiyama: No. My name is Susan Akiyama. I'm the administrator for the Office of Housing & Community Development. No. I don't have any additional comments other than what's already been presented. Ms. Kahakalau: Do we have a motion in terms of Petition No. 2016-07? Mr. Robinson: I'll make a motion to approve the petition. Mr. Adams: Second. Ms. Kahakalau: Any discussion? Mr. Robinson: One question. Is that Wailuku or Wainaku? 18 Ms. Akiyama: Wailuku Drive. Mr. Robinson: Wailuku Drive. Ms. Kahakalau: Mr. Adams? Mr. Adams: I would just make a comment that I have used Haraga in the past, but I don't feel the need to recuse. It was a one-time deal and not in association with having to do with anything with this particular petition. If I could as a questions. How does the office choose the lock smiths when you need to use a locksmith? Ms. Akiyama: What we normally do is when we determine that we need the service. We will call three vendors, get a price and depending on the specifications of what we're looking for. You know the tendency is we will go to the lowest price, but there have been situations where it could've been the lowest, but the locksmith was not available in the timing that we need. Sometimes it's for our office purposes. Sometimes it's for some of the housing facilities that we run. So timing becomes an issue. So we look at all of that criteria I guess and then we make a determination. Mr. Adams: If I could just continue the conversation. When you say that you go out... are these vendors part of a vendor list that you maintain? Or? Ms. Akiyama: No it's not. Mr. Adams: So this is a request for proposal. It's an invitation for bid or request for proposal? Request for proposals for these then? Ms. Akiyama: It's not even categorized as that because it's under a thousand dollars. Mr. Adams: Okay. Ms. Akiyama: So it doesn't even enter into that professional services list. Mr. Adams: So what would it be called under the procurement. Do you know? Ms. Akiyama: I don't know. Mr. Adams: Counsel do we have any idea? Mr. Yoshimoto: I believe it would be a small purchase under a thousand dollars. 19 Mr. Adams: So as part of discussion then it would seem to me that that this is a small purchase procurement action...not subject to the new ordinance that we are talking about which is specific to invitation for bid and requests for proposal. Then the questions for me is whether or not there is a conflict in the sense that Ms. Haraga as a County employee has some type of business connection with her husband's locksmith work. Is there any? If you could introduce yourself please. Ms. Haraga: My name is Paula Haraga and I'm the wife of Haraga locksmith. Mr. Adams: And answering my questions...your answer was that you have nothing to do with the business what so ever. Ms. Haraga: No. No. Mr. Adams: In your position in the County...you're an account clerk in the Office of Housing& Community Development. Is that right? Ms. Haraga: Yes. Mr. Adams: And so the decision that's made to engage with Haraga locksmith as vendor...that's done by an entirely different element in the office? Ms. Akiyama: That's correct. Mr. Adams: And Ms. Haraga is never involved in that at all? Ms. Akiyama: She's not involved. Mr. Adams: And that just not specific to locksmith vendors...that has to do with just.... Ms. Akiyama: Any procurement or selection of services. Mr. Adams: Okay. So when the invoice for the work comes...there's an understanding...how does that work specifically? Ms. Akiyama: So we have several account clerks that work in our office. So anything to do with the closing out and payment of those invoices are handled by another account clerk. Mr. Adams: Who sees that? How does that? 20 Ms. Akiyama: The supervisor of those account clerks who happens to be here today as well. Here name is Tobi Phoebes and she is an accountant in our office who oversees both of those account clerks' staff. Mr. Adams: Okay. Thank you. Ms. Akiyama: You're welcome. Ms. Kahakalau: And so in this specific case...there were three bids procured? Ms. Akiyama: Well we don't...we're not procuring any services right. We're doing this in advance because it has happened in the past. So we just wanted to present this situation to the Board to make sure that going forward. We would not be in conflict. Ms. Kahakalau: In terms of calling him...in general as one of the three. That's what you're asking and then you would still go with the lowest bidder and/or the timing as you mentioned. Okay. I didn't quite understand it. Thank you. Mr. Adams: So I guess I would say that for my purposes of the...as you have established this fact pattern...small purchase procurement action and as a part of your normal activities of needed to acquire...obtain a locksmith to do businesses. This whole fact pattern to me with the stipulation of how the work is done within the office seems to merit approval or my vote yes on this because of that fact pattern. We're only talking about that fact pattern. Ms. Kahakalau: Any further discussion? Motion and Vote: Mr. Robinson moved to approve the petition. Mr. Adams seconded the motion. All members voted aye. d. Petition No. 2016-08: Request for an informal advisory opinion from a County officer or employee, to determine whether there would be any conflict of interest of an employee of the Office of Housing & Community Development (OCHD) and a vendor who a relative is doing printing services for their office. Ms. Kahakalau: The petitioner is here? Okay. Again is there anything else you would like to say in regards to this petition? Ms. Akiyama: I'll just introduce you to Cindy Hara who is the sister of the vendor that we at times procure for printing services. 21 Ms. Kahakalau: Alright. Do we have a motion in regards to that petition? Mr. Robinson: Motion to approve. Mr. Adams: Second. Ms. Kalele: Second. Ms. Kahakalau: Alright. Discussions please. Mr. Adams: So if I could...one I would state for the record that as member of the Civic Organization. We have engaged Mr. Hara services...Hawai`i Printing Corporation. On occasion he has provided those services as a contribution to the Civic Organization in a charitable way. That would be my connection to the organization. I don't see the need to recuse myself as a result. Could you explain to me the process by which...what we're talking about in terms of the procurement...the kind of procurement it is and how it operates? Ms. Akiyama: So in this situation...it's a little different because for all printing services in the County. The purchasing department procures all of those services. So the County departments don't even engage in that. So when I have a need for printing services, I would call the purchasing department and they would procure the services. Mr. Adams: And then Ms. Hara...do you have anything to do with procurement whether it's in office or whether it has...within the County? Ms. Hara: No I do not. Mr. Robinson: You just jogged my memory Mr. Adams. I also have utilized the services of Hawaii Printing through the Kona Coffee Cultural Festival and written checks. They printed items for us as well and I'm a Board member of the Coffee Festival. Third level removal, but I just wanted to disclose that as well. Ms. Kahakalau: I just had a question for Ms. Hara. Do you have any connection specifically with Hawaii Printing Corporation in the business. Ms. Hara: No I do not. Ms. Kahakalau: Okay thank you. Do we have any other questions? 22 Mr. Adams: I would just make a comment for the record that the relationship between Ms. Hara and her brother who runs Hawai`i Printing falls within the purview of the Code as a sibling, but there appears to be more than firewall distance between the responsibilities and actions that Ms. Hara exercises and the purchasing and procurement...the contract of the County with Hawaii Printing Corporation. Ms. Kahakalau: Thank you Mr. Adams. Motion and Vote: Mr. Robinson moved to approve the petition. Ms. Kalele seconded the motion. All members voted aye. 11:49 a.m. The Board took a lunch break. 12:20 p.m. The Board returned from lunch break. 5. UNFINISHED BUSINESS a. Petition No. 2015-03:Continued review of petition alleging that a County officer violated Sections 14-1 (Enactment and Policy), 14-2 (Standards), and 14-4 of the County Charter (Code of Ethics) by using the officer's p-Card "as a special privilege to obtain goods and services: from various merchants and vendors, which is a "conflict of interest in serious breach of"the highest standards of ethical conduct." 1. New Petition submitted by Mr. Lanric Hyland dated July 4, 2016 against Kenneth Goodenow as a companion to Petition No. 2015-03. Ms. Kahakalau: There is a sub-section one...do we deal with at this point as well? Counsel? Mr. Murai: Madame Chair. You want to take up that matter first? Ms. Kahakalau: Yes. Please. Mr. Murai: Alright. Members first of all for the record. Special Deputy Corporation Counsel Gary Murai. Members if you look the new petition that has been lodged against Board member Goodenow. I suggest that you refer to Rules 4.2 and 4.5 of the Rules of Practice and Procedures of the Board of Ethics. Note that Rule 4.2 requires 23 that the request for informal advisory opinion by a third party require among other things that writing should be legible and on paper eight and half by eleven and half inches in size. That it be submitted in duplicate and that it be signed by the third party or his representative. And if you look at Rule 4.5, Rule 4.5 rejection of request provides that in paragraph"c" in case shall the Board entertain a request that is not in writing and not signed by the person making the request or his representative. Now there may be other issues with regard to this...it's been styled as a petition, but before we can even get to the substance of that so-called petition. In other words, determine whether that it even alleges a violation of the Code of Ethics. I urge you to consider Rule 4.2 and 4.5 and first determine whether the matter is even properly before the Board. Mr. Adams: Madame Chair if I might. Ms. Kahakalau: Yes Mr. Adams. Mr. Adams: One of the questions I had coming into this was whether or not this was actually a 1.5...Rule 1.5 affidavit as a opposed to a 4.2 petition. Mr. Murai: Well it's styled as a petition. Mr. Adams: I understand, but how take it up matters. So...If I can ask...is the version that we have in front of us without the signatures. Is that what we received...we dint receive one that had signatures? Ms. Hirayama: We did a couple days later in the mail. Mr. Adams: Okay. So we do have one that has signatures? Ms. Hirayama: We do have one in his hard file back at the office. Mr. Adams: Okay. Mr. Murai: One thing...I wasn't aware that there was a signed version that was received, but it did not make it in time to be placed on the agenda because according...pursuant to Chapter 92...Sunshine Law...all matters must be...the agenda must be posted six working days prior to or six days prior to the hearing. Ms. Kahakalau: Mr. Goodenow? 24 Mr. Goodenow: Of course if it's a petition I'm going to recuse myself, but I'd like to say look. I mean the heart of the matter is that Mr. Hyland claiming that I can't be fair. Whether we take it as a petition and I appreciate the procedural need to dismiss it if it's a petition. I don't have a problem with that, but I mean...It's only extending the issue further and further. I'd prefer that hey if you want to treat it as a conflict of interest, I have no problem with that. I'm not going to give my opinion because it involves me. I mean I'd like to at one point kind of make a statement about it. But at this point whether you take it as a petition or something else. I have no objection to that and maybe Mr. Hyland would be agreeable to just including it as part of the discussion of Billy Kenoi's matter. Just saying hey it's like a communication...we're gonna talk about it, but because it's not signed at this point it's not necessarily a petition. I'm open to however you all want to handle it. I just want to put that on the record. Mr. Murai: Madame Chair if I may. Ms. Kahakalau: Go ahead. Mr. Murai: Regardless of whether it's...it's styled as a petition, but if the Board or if member Adams suggest that we ask whether this could be construed as an affidavit of disqualification pursuant to Rule 4.5. The bottom line is that it's not that either because an affidavit requires a signature under oath and of course the respondent in this case Board member Goodenow would have to have an opportunity to respond.... Mr. Adams: Why are we saying that it depends on...it matters how you style it. Absolutely. Mr. Murai: Certainly, we cannot tell...well it's not the Board's job to give advice to litigants on how they want to conduct their case. Certainly, we can presume that Mr. Hyland has the rules or access to the rules and of course he's bound to follow them like all parties are. Ms. Kahakalau: So basically what have is we have a quote on quote petition. Meaning it was not filled out properly when it was received in time. And then, but it had to be put on agenda because it was received. It's up to us to decide whether we would like to hear it 25 today or not. We do have a signed petition that came in two working days or something? Ms. Hirayama: I believe it was on July 8. Ms. Kahakalau: Prior to this meeting, however not within the deadline so I would suggest maybe our first item to see whether we would like to hear this petition at this point or not. Mr. Goodenow first and then Mr. Adams. Mr. Goodenow: Thank you. I'd like to ask Mr. Hyland I mean. Let me put it this way...I mean...I'll get to what was said or not said, but basically my position has always been that need to wait until the trial is done if possible and have the hearing. I've always...it's always been my intention that we have a hearing and your testimony at the last hearing which I agreed with. It's not gonna take numerous days. This could happen very quickly. I agree with what you said. I'm not sure if it matters to you...I mean why not have it in November when the trial is over. I'd be interested in your opinion on that, but I'd also like to say...as far as the comments. Look...I always try never to comment about Board business. I feel that's appropriate. Now I may not always succeed in that. I will admit on occasions that I've had friends come up to me and say oh you postponed the postponement again. Hahaha right. I may respond to them. I would never say I would postpone...that I made a motion...that we postponed til whatever. Mr. Adams: Madame Chair point of order. Ms. Kahakalau: Yes. Mr. Goodenow: I'm asking Mr. Hyland... Ms. Kahakalau: We don't even have a motion yet. Mr. Adams: Point of order. Mr. Goodenow: Well...I'm asking a question of Mr. Hyland about his petition. Ms. Kahakalau: But we haven't even determined yet if we're going to hear the petition so I think we should do one thing at a time. Mr. Goodenow: Well my question is going to be will he withdraw it based on my representation. 26 Mr. Adams: Point of order. Ms. Kahakalau: Mr. Adams. Mr. Adams: We're not in...we're engaging in discussion on something that we haven't even taken up. We need to do this the right way. Mr. Goodenow: Well...there's nothing wrong with me asking him if he would withdraw his petition which I'm trying to do. Mr. Adams: Point of order. Yes there is. We need to have...just because the things on the agenda...it's been agendized and we brought it up. We have yet to actually bring the item forward. So for us to actually have a conversation on this. We have to have some type of motion were we've accepted this petition. Mr. Goodenow: To respond to that...I've always said you need a motion to have discussion. I've been told with this Board that's not true. We take testimony or ask questions of the petitioner first and then we make the motion. So I'm sorry if I didn't follow what I thought was our procedure. Mr. Adams: We're having discussion so if the idea is to then go...what you want to do is initially allow the individual to provide a testimony and then ask the questions based on the testimony. That's my understanding of the procedure, but my understanding is that we haven't yet even determined that we're taking this up as a petition. Mr. Murai: I would suggest that the first order of business be the Board's determination whether to accept the petition and then the Board may have discussion on it. As we speak right now...normally a petition is regarded filed once the Board accepts it. Ms. Kahakalau: So in that case...don't we need a motion to do that? Mr. Murai: Normally...it's kind of a Pro forma thing. In other words going over whether it meets all the criteria...but in this case...it appears there may be some deficiencies so therefore I recommend that the Board...it should probably a motion by motion. Ms. Kahakalau: So do we have a motion? Mr. Adams: So I will move that we don't accept this petition in its current form. Mr. Robinson: And I would second that motion. 27 Ms. Kahakalau: Alright so now we can discuss the petition. Mr. Adams: Right. If I might Madame Chair as the mover. It's not that we would never consider this. It's that...to me we have the ability under 4.5 to accept it. My concern is the Sunshine Law. This did not meet the Sunshine Law requirement and as result it's not just the Ethics Code that are up against here its Sunshine Law requirements. And so that becomes an issue for me. It doesn't mean that we would never consider it. No...we actually have the version signed that it seems to me would be provided then...at the Chair's discretion obviously to be considered the next meeting. Because obviously that's well in time for Sunshine Law requirements. I probably would be predisposed had that not been the case...being a hypothetically conversation an all to accept it because we have that authority under 4.5. But when we're up against Sunshine Law...we do the same thing for everybody else. That's just the way it is. Ms. Kahakalau: Any further discussion in regards to that? Mr. Robinson: The other thing for me in addition to the Sunshine Law is the fact that it's based upon hearsay by an anonymous source. I mean that's just so out of anything. I just couldn't believe it when I read it that it would be based on hearsay by an anonymous source. Ms. Kahakalau: For me it's a procedural concern. We have procedures and those procedures are very clearly spelled out in the Code of Ethics as to what constitutes a petition and includes being signed and being in the proper form which this particular petition was not. So I would be voting also in favor of dismissing this petition. Mr. Goodenow: I apologize...I will say Mr. Adams is correct... I was not thinking of the Sunshine Law. I think that makes a difference and maybe I shouldn't have dis-broaden in discussion by my question now that you mentioned the Sunshine Law. I appreciate that. I guess we have to be safe as much as I would like to end matters...I think Mr. Adams is right. Ms. Kahakalau: Do we have any further discussion? So the motion to dismiss the petition and....not dismiss I'm sorry. Mr. Murai: I think the proper motion....Board member Adams if forgot exactly what you said,but it would be to not accept. 28 Mr. Adams: That's right. Mr. Murai: Not accept. Ms. Kahakalau: That's why I wasn't clear...that's why I had to say it...so okay the motion is to not accept...not accept the petition as it was submitted. Any further discussion? Motion and Vote: Mr. Adams moved that we don't accept this petition in its current form. Mr. Robinson seconded the motion. Members Kahakalau, Adams, Robinson and Kalele voted aye. Mr. Goodenow abstained. Ms. Kahakalau: Motion carried. Mr. Murai: The motion carries. Madame Chair just for the Board...for the staff's direction. Now I've not seen the signed petition, but I presume that that matter will be placed on the next meeting's agenda. Not to say that it's going to be accepted, but at the next meeting...the one that has been received by mail will be placed on and the Board will then review again to determine whether it meets all the criteria of the Board's administrative rules. Is that correct? Ms. Kahakalau: That's my understanding. Now does that eliminate the entire Petition No. 2015-03 or do we still discuss that? Mr. Murai: It's...Madame Chair that matter is on the agenda for I believe for further review. I'm sorry continued review and I presume that what that means review of the current status which is I believe the correct...I believe the status right now is that it has been deferred. Mr. Goodenow: Right Mr. Adams had a motion that we put it back onto...into consideration...we had a two—two vote and it was automatically deferred to the next meeting which now. So I mean I don't know if you want to make a new motion, but there is...I guess the...we do need a new motion because the pending...the previous motion ended in a two—two vote. Mr. Hyland: Madame Chair. Ms. Kahakalau: Yes sir. Mr. Hyland: Do I...can I ask permission to ask Mr. Murai a question. Ms. Kahakalau: Not at this point in time, but I am noting that you have a question. 29 Mr. Hyland: Well I'd appreciate it because I would like to make a verbal motion for Mr. Goodenow to recuse himself Whenever that's appropriate. Thank you. Ms. Kahakalau: Thank you. Mr. Goodenow: I mean he can't make the motion, but maybe I should raise it. Mr. Murai: Actually...Mr. Hyland did not make a motion...he made a request. Mr. Goodenow: A request. Mr. Murai: Yeah. Mr. Goodenow: A request...right. Well... Ms. Kahakalau: I think at this point in time based on what I understand... Mr. Goodenow: We put forward...asking whether I have a conflict or not and ask for the Board to determine whether I have a conflict which would be Mr. Hyland's allegation. However, that matter is not on the agenda under Sunshine Law issues. With that I don't think so,but do we want to...I mean I'd prefer today... Mr. Murai: Board member Goodenow whether you have a conflict or not...I suppose the first person that would know that would be yourself because you can then either disclose a conflict or a potential conflict and a voluntarily recuse yourself Or if there has been...as Board member Adams correctly points out...if there has been an affidavit alleging that you may have somehow have a bias and after a proper hearing. The other Board members concur and then your fellow Board members would determine whether you do or do not have a conflict that would require recusal. Mr. Goodenow: Okay. Well.... Ms. Kahakalau: To me if you're talking about Petition No. 2015-03. I don't see the conflict of interest in that particular petition. However, if you do have a conflict it would be nice to know. Mr. Goodenow: Well no...even if I had said those things...there's no legal basis for a conflict. Mr. Murai: Well.... 30 Mr. Goodenow: I suggest...I don't know what to say I mean...besides I don't believe I have a conflict...I can be fair...I've always supported having a hearing. I mean besides saying that so I guess I won't ask for a determination or declare a conflict. I won't declare a conflict. Mr. Murai: Well if there is no conflict then I would suggest that the Board proceed. Mr. Goodenow: Okay. Mr. Adams: Madame Chair. Ms. Kahakalau: Yes Mr. Adams. Mr. Adams: Given that we...2015-03 agendized as unfinished business which for the purposes of our audience in Kohala in particular. The petitioner means that as I understand it...the testimony's already been provided by the petitioner when it was new business. We're now into unfinished business and I would again move to end the deferral of the petition and bring the back for consideration. Mr. Murai: I'm sorry Madame Chair...I'm sorry to interrupt Mr. Adams, but I...we've neglected to note that for the record that Mr. Sing...the respondents counsel is present and perhaps we should invite him to...up to the table. Ms. Kahakalau: Mr. Sing could you please come and introduce yourself and then let us know your opinion here. Mr. Sing: Good afternoon. My name is Richard Sing and I'm counsel for Mayor Kenoi. Mr. Murai: Actually...I'm sorry interrupted while there was a motion pending without a second...so... Mr. Robinson: I'll second that motion. Ms. Kahakalau: And the motion is for continuance? Mr. Adams: No. The motion is to end the deferral and bring the petition back into consideration. Ms. Kahakalau: Okay. And so you have a statement in regards to that. Thank you. Mr. Sing: Our position remains the same as it has been since the beginning of this case. We believe that the Commission should...the Board 31 should defer action until after the trial. As it stands currently, the trial is set for October 10. It's relatively firm as these things get at this point. We expect it to take quite a while. We expect selecting a jury to be quite a task and the more media coverage...the more outside discussion of this in this kind of form. It makes that process harder and so that is one of our main concerns. My secondary concern is that my understanding is the court had...I mean the Board had already decided to defer this and we're talking about a reconsideration of this. Nothing substantially has changed since that previous decision was made. So that's my other concern is the case is proceeding as it is and we have a set date in the relatively future. This isn't some far away date that we're talking about. We're talking about October and it's while the Mayor is still in office and that case will be decided shortly after that. So it's our position that the deferral is the right move here and that's what we would ask. Ms. Kahakalau: Any further discussion? Mr. Adams: In the essence of fairness...I'd like to give Mr. Hyland the opportunity to comment. Ms. Kahakalau: Yes. Mr. Hyland go ahead. Mr. Hyland: Thank you Mr. Adams. Okay. The Mayor's term expires I believe on the fifth of December. So any trial to postpone this until after the trial and Mr. Sing has already said it will be a lengthy trial so it probably run into November. So the Board have to wait until its November meeting to put it on its December calendar. By then the Mayor will no longer be employed by the County. And that means you folks are not gonna hear anything about this petition. It just die when the Mayor leaves office. Now...we've already heard that there are....(inaudible)...I only did not include the name because I didn't know if you were gonna deal with it at all and I didn't see any point in getting that lady involved if nothing was gonna come of it. I don't know the lady...I'd never met the lady...I still have never met the lady...I've only talked to her on the phone, but she did confirm what she heard and she confirmed that Mr. Goodenow was anonymous to her before she overheard him in the hall. So I just wanted to get that into your statement about it being anonymous and not under oath. But more importantly...the evidence is as we heard from I think which better judge of what's appropriate then Mr. Sing. We heard from the Attorney General himself. The head law enforcement officer for this State that there is no problem with this Ethics Board determining...question under its jurisdiction and not waiting for the results of a criminal trial. 32 Now...I challenge...I mean...I'm only seventy-six so I haven't been here that long, but I would challenge anybody to point out any other Ethics Commission complaint that was continued until after the criminal trial was held. That just doesn't happen and the issue of poisoning the jury pool. There's an alternative...they can ask for it to be tried...Mr. Kenoi's case to be tried off island if they think our jury pool is not pure. I'm sure that they're gonna be able to find fourteen jurors who have not been prejudice by whatever evidence this Board hears about Mr. Kenoi. And your hearing should not take long...you have Mr. Kenoi's television testimony and you have the County auditor's report and that pretty much gives you all you need to make a determination today on whether or not Mr. Kenoi violated the Code of Ethics. And after a year, I'm just trying to get the matter heard and I'm afraid that you continue it...it's not going to be heard because Mr. Kenoi will no longer be Mayor. I would point out a historical fact also which just years ago the Mayor was charged with third degree assault and his case...the witnesses in his case...the victims...were the people who were gonna testify and the Mayor continued that case until after that person who was in the army was sent back to Afghanistan...rotated back to Afghanistan and there were no witnesses. Now I'd hate to see Mr. Sing or the Mayor simply continue this or have this continued past the time when the Mayor in office when you know that as long as he is no longer in office...you're not even hear this case. Thank you. Ms. Kahakalau: Thank you Mr. Hyland. Any further discussions? Mr. Adams: My position's pretty well known...I made the motion...I think that it's appropriate for us to take this petition up. Ms. Kahakalau: Mr. Goodenow. Mr. Goodenow: Yes. Mr. Hyland if I could ask you...if we had a hearing in November and this matter was resolved by this body in November...would that make any difference to you as opposed to having it resolved say in August? Does that make a difference...the time frame in and of itself? Mr. Hyland: Yes sir. There's a maxim about that...justice delayed is justice denied. Mr. Goodenow: And...Mr. Sing if we were to have the hearing say today...I mean I don't want you speculate...but if we had it after the trial...if we had our hearing after the trial. Would you anticipate Mr. Kenoi to take the Fifth Amendment or not speak to us? 33 Mr. Hyland: I'm sorry I didn't understand that question. Mr. Goodenow: It was meant for Mr. Sing. I agree it was a little awkward. I'll re- phrase it. Is there a difference if we have the trial now versus after...I mean the hearing now as opposed to in November...does it make a difference? Mr. Sing: The difference I think primarily is as I described. That we are about to have a giant public trial airing these exact issues. And waiting until after the trial in my humble opinion is the smart move for this community. Mr. Goodenow: The Attorney General never said...formally to us...there was a newspaper article which he was referred to as saying that there was no reason there shouldn't be a civil proceeding prior to a criminal proceeding. Say like in an administrative driver's license revocation situation. I mean granted he was the head of the office investigating Mr. Kenoi when he said that. But I mean we haven't received anything...he has not made any comment to us. Do you have any comments about that? Mr. Sing: I actually think it's quite similar to Mr. Hyland's other petition today where's an anonymous allegation. I think you have a situation where you have to look at exactly how you're gonna move forward. We you have a situation where this Board is getting its information from a news article rather from some direct communication. I think that's bad practice. The same way accepting petitions that are make anonymous allegations is a bad practice of hearing them. So that's my opinion. Mr. Goodenow: Do you think the Mayor might be more open to speaking candidly with the Board after the trial? As opposed to now? Mr. Sing: He's not hear and I can't make commitments on his behalf because I haven't discussed this with him. But it's my opinion at this point that the same consideration that are in place now prior to trial are not the same considerations that are in place subsequent to trial. Mr. Goodenow: Can you say if the Mayor supports hearing the petition while he's in office? Mr. Sing: I'm the Mayor's attorney and I can tell you we support this Board's decision to defer hearing until after he gets a fair and full trial. That's coming id a couple of months. 34 Mr. Goodenow: Thank you. Ms. Kahakalau: I think one of the things that would help us also is I think that there's some misconceptions as to what the power of this Board is and what kind of consequences would result in hearing or making a decision in regards to this petition. And so maybe if we could have Corporate Counsel just explaining to everybody so that we're clear what our...parameters we have to work under. Mr. Murai: Madame Chair. The Board of Ethics under its rules and under the Hawai`i County Code...what this Board does is issues informal advisory opinions either upon request of an employee or pursuant to a petition for a complaint against a County employee. If the Board concludes that the employees actions or intended actions may run afoul of the Code of Ethics...then what this Board does is it issues initially an informal advisory opinion. If the County employee complies with the Board's instructions, then that's where the matter will end. If the employee insist on continuing the behavior that lead to the issuance of the informal advisory opinion then this Board may then take it to formal hearing and upon a finding and a formal that the County employee still continues to violate the Code of Ethics...then the Board may consider referring it to the County Council...referring the matter to the County Council. Now this is not to say that that's all that can happen because the County employee...depending on what the action was. May still be disciplined by the department head or by the County Council. And by discipline I mean the things that the County...the employees are normally meted out such as suspension, reprimand and or even up to termination. So if I...if I'm were to be asked what this...the Board's role is...the Board's role as I see it is primarily to educate and guide County employees in how to comply with the Code of Ethics and how to demonstrate ethical behavior. Mr. Goodenow: Madame Chair. Ms. Kahakalau: So that is what of the issues for me is that at this point even if we go to a formal hearing...if it should go that far and we do present to the County Council our concerns. The County Council has already decided that they're not going deal with the issue until after the trial. And so it's difficult for me to recommend that we move forward because I do see the potential of the trial being more difficult do to the amount of press that's out there. I'm willing to hear other opinions and discuss this further. 35 Mr. Goodenow: Madame Chair. So Mr. Murai...now if I'm correct right. Right now we would be in an informal advisory opinion level. Mr. Murai: That's correct. Mr. Goodenow: We've given...let's just say hypothetically we tell the Mayor hey anyone using their P-card that no matter what the circumstances...that's not okay. If...unless the Mayor wants a formal advisory hearing...that ends the whole argument...is that correct? Mr. Murai: The County employee may request a formal hearing...of course by formal hearing...you know that...it's.... Mr. Goodenow: But it has to be the employee...is that not correct? Mr. Murai: No I believe the Board can... Mr. Goodenow: Mr....well we had a discussion about that...well let's say...we cannot fire the Mayor say one of the testifiers earlier said hey you know the Mayor could be fired. The Council can't fire the Mayor. The only way would be to have an impeachment or where you get signatures or recall where you get signatures. I mean it's not like he can be removed from office by this procedure without recall or... Mr. Murai: If I may...because I'm...personally I'm serving as a Special Deputy Corporation Counsel to the Board of Ethics so I don't want to speculate on anything that could happen beyond the scope of the Board...this Board's powers. I just note that this Board does not have the power to discipline. Mr. Goodenow: We don't. Could we fine the Mayor in your opinion? Mr. Murai: I'd have to check the rules. Mr. Goodenow: I think the answer...well I don't know Mr. Adams wants to chime in. Mr. Adams: Our ability to administer any fines at the moment doesn't exist under the current code because even though the Council has given this Board the authority to do that in previous ordinance. That ordinance only goes into effect when we change the rules...when the rules are updated. The rules have not been updated since that point. So the next time the rules are updated...then that ordinance 36 will take effect and we will then be...have the authority to issue a fine. Mr. Goodenow: I agree with that interpretation. I don't know if you'd care to give a legal interpretation as to whether once we have the informal advisory opinion and let's say we do want...if the Mayor accepts it...do we ever move to a formal hearing. Mr. Adams: I don't have to give you legal interpretation. I can just read from the rules. Mr. Goodenow: Yes. Mr. Adams: 6.1(b)...If the person charged fails to comply with such informal advisory opinion within a reasonable time without requesting a formal opinion or if a majority of the Board to which the Board is entitled meaning currently three...is entitled determine that there exists probable cause for belief that a violation of the Code of Ethics might have occurred, it may institute proceedings for a formal opinion upon formal hearings. But you have to go thru the process of the informal first. Ms. Kahakalau: Okay so...we're discussing whether this Petition No. 2015-03 is going to be continued. Mr. Goodenow: I got lost in that discussion. My main point is I think...our position all along was to defer pending the disposition of the Attorney General's investigation. Now at some point we debated what does the term disposition mean. Does that mean now that they've charged...it's been...that part is over...that's disposition or do we have to have a verdict sentencing? Is that disposition? I took the approach that that was what disposition meant. Mr. Adams has some other concerns that put this back into play, but the bottom line...it's always been our position to have the hearing. I'm in full support of having a hearing. If we find out at the October meeting the trial...we set it for November I move we set for November. If it doesn't happen we go forward anyway. There's still time, but the fundamental constitutional right to a you know a fair and impartial trial by a jury of one peers. We should honor that no matter who it is and it makes no difference practically speaking if we do it November or now. So let's do it in November. Thank you. Ms. Kahakalau: Thank you. 37 Mr. Murai: Madame Chair. Board member Goodenow did you actually mean to make a motion? Or because we have another motion pending. Mr. Adams: I took that as a rhetorical flourish. Mr. Goodenow: Well maybe. Maybe I move right now...I move we well...it's not alive...okay thank you. Ms. Kahakalau: We have to finish with this motion first which is a motion for continuation. Mr. Adams: It's actually a motion...the motion actually is to end the deferral and bring the petition back for consideration. That's the actually motion. So just so we're clear... a vote to support means to support ending the deferral and allowing this Board to then bring the petition back for consideration and a vote opposed means essentially that we're continuing the matter. Mr. Goodenow: Continuing the matter until disposition which is the trial is over. As soon as the trial is over...it's back on the agenda. Mr. Adams: Continuing the matter until we vote to end it. It doesn't matter whatever the reason are...we still have to vote to end the deferral. Mr. Goodenow: Well I have no objections to voting to end the deferral if we then continue it until November. So I think the motion should be we either do it now or we wait until after the trial. Cause I think the pending...the motion that passed was disposition right? Mr. Murai: Madame Chair if I may. There is a motion pending and I believe it is as Board member Adams has described so I believe he is correct that an affirmative vote means that the deferral ends and the matters now on the table. A negative vote means that the deferral will continue. It's sounding as if what member Goodenow wants to do and I'm not saying he can or he should do it is...it sounds he wants to amend the motion and if that's the case then procedurally the...If there's a motion to amend the motion to amend is heard first before the main motion is voted on. Mr. Goodenow: Thank you Mr. Murai. I will...I agree with that...that's the easiest way to proceed so then I will move to amend the motion...well the motion is to... Mr. Adams: End the deferral. Mr. Goodenow: End the deferral. 38 Mr. Adams: And bring the petition back for consideration. Mr. Goodenow: So it's hard to amend that... Mr. Adams: No. You would amend it by...if I might just for hypothetically purposes...not that is support the amendment...but you would...the amendment would be at the back end that...to bring it back for consideration in November. Mr. Goodenow: Okay. So I move that the motion be to... Mr. Robinson: Amended motion. Mr. Goodenow: The amended motion would be to move to bring it back live, but also defer it to November meeting. The motion is to bring alive and set for November. Ms. Kahakalau: Do we have second on that? Ms. Kalele: I'll second. Ms. Kahakalau: So we have a second so as far as discussion of the amendment? Mr. Adams: Just so in understand what we're talking about is ending the deferral now, but bringing the petition back for consideration in November. Mr. Goodenow: Yes. Mr. Adams: Is that correct? Mr. Goodenow: Yes. Ms. Kahakalau: I have to say that...initially when I voted for the deferral to me it was to find out what the Attorney General's investigation that was gonna be done by the Attorney General because we just don't have that resources to do a thorough and fair investigation. I don't think this Board you know has the staff and has the way with all to do a fair investigation and so that's why I voted initially for the deferral. And so I had initially thought that we were gonna get something from the Attorney General, but that's not going to happen. We know that there was an impeachment, but we don't really know what the specifics of the Attorney General's investigation is. Mr. Murai: I believe you meant indictment. 39 Ms. Kahakalau: Indictment I'm sorry. Mr. Murai: Well Madame Chair...I know that we had requested a copy of..I know that the staff had obtained a certified copy of the indictment. So we have that in our files, but the Attorney General has himself has not communicated with the Board directly to my knowledge. Ms. Kahakalau: Thank you. Do we have any further discussion in regards to the amendment? Alright. We'll call for the question in regards to the amendment...all in favor in amending the initial motion and end the deferral, but continue it for consideration until November. Mr. Murai: Madame Chair the vote appears to be three in favor of amending the main motion with one oppose. So the motion to amend carries. And the motion that is on the table I will re-state is to end the deferral of Petition No. 2015-03 and to give it a firm hearing for informal advisory opinion at this Board's November meeting. Ms. Kahakalau: Yes. Do we have any discussion in regards...further discussion in regards to that motion? Mr. Robinson: I do I just want to be clear that we get a date on the calendar that something happens and I realize that this is happening after the trial if we vote in favor of this. Is that going to compromise your trial in any way? Mr. Sing: May I ask what the hearing date and the moving forward at that point? Mr. Robinson: From our Ethics Board to have our hearing in November. Is that going to compromise your trial in October? Mr. Sing: I don't believe so. Mr. Robinson: So you think you will be through with your trial by the end of October so we can have our hearing in November. Mr. Sing: Do you know when your November dates gonna be? The estimates at this point are probably through the end of October. That's the estimate now. Mr. Murai: We're saying this Board normally meets on the second Wednesday of the month so that would be November 9. Mr. Sing: I believe the trial will be concluded by that point. 40 Mr. Robinson: And by us waiting until then is not going to compromise your trial...your presentation or anything like that. Should not correct? Mr. Sing: I don't believe so. No. I'm not sure as opposed to what, but moving forward now...I mean it certainly in my opinion the right move...to move it to November. Ms. Kahakalau: Any further discussion. Go ahead Mr. Goodenow. Mr. Goodenow: Well I support the motion and I note that if we had to...we could have another meeting in November...I mean would could have a special meeting if it was required. Whether because it took that long to get hearing...I mean I'm committed that we finish it for sure and I think there's time to do that. Mr. Robinson: Just for clarifrcation...I do understand that the County Council also decided to not take any action until after this trial as well. Is that correct? Ms. Kahakalau: That's my believe as well. Mr. Robinson: Do we know that for a fact? Mr. Sing: I wasn't present, but I read the news reports which the County Council voted seven to one not to reprimand. Is that what you're referring to? Mr. Robinson: Or until after the trial...I mean is that what the County Council...what did the County Council vote to do? Mr. Sing: I wasn't there, but I've read reports that they voted not to reprimand. Mr. Robinson: Until after the trial or not to reprimand period. Mr. Sing: I think not to reprimand period, but I'm not a hundred percent on that part. Mr. Robinson: Okay. Does anybody else know the answer to that questions? Ms. Kahakalau: Any further Manao? Mr. Adams: Right I will pose the motion...I believe we should get on with this...I don't think that what's happening on the criminal side has anything do with our ethics side. Thank you. 41 Ms. Kahakalau: Alright. All in favor of the amended motion to end the deferral and continue for consideration in November. Motion and Vote: Mr. Adams moved to end the deferral and bring the petition back into consideration. Mr. Goodenow amended the motion to hear Petition No. 2015-03 in November. Members Kahakalau, Goodenow, Robinson and Kalele voted aye. Mr. Adams voted no. Ms. Kahakalau: So the motion carries. Mr. Murai: The motion carries. Mr. Goodenow: One procedural question Madame Chair. So as far as the petition...so this item number 2015 will be put on the November agenda and the petition submitted by Mr. Hyland...as a companion will also be put on the agenda at that time? The one that we...we actually rejected...he sent a signed version on that one. Mr. Murai: The instructions for staff by the Board were to place it on the next meeting's agenda which I presume would refer to the August meeting of this Board. Mr. Goodenow: So are you going to fly over that or.... Mr. Murai: I don't know. I presume I am. Mr. Goodenow: Okay. Thank you for making that clear. Mr. Murai: I take it back. I mean...I suppose one of the things the Board needs to determine is whether the petition that has been submitted is a companion is really a...really should be a separate petition. Also the Board's review may even include mattes such as...does it even allege a violation of the Code of Ethics. It makes allegations, but what the Board needs to consider is does it allege a violation for which this Board has jurisdiction over. So I know that if it's a...the reason why I'm here as Special Deputy Counsel is because the 2015-03 was filed against the Mayor. Now if it's an action as to a Board member, I'm not sure whether the Corporation Counsel...the Hawaii County Corporation Counsel may decide whether her staff can handle...can advise the Board in a matter against one of its members or whether they need to involve me or anyone else as a Special Deputy Corporation Counsel. So I think that that's something that I can answer today. It's something that perhaps...you know the Corporation Counsel may request of me for the matter regarding Board member Goodenow. 42 Mr. Adams: Madame Chair. I would note that we had the Corporation Counsel present. Perhaps we can ask the question and then if the members feel like this is an executive session discussion...that's also something that we could consider. Mr. Murai: Well...regardless I'm not sure this is a conversation we need to have right now is all I'm saying. We've already decided to set it for...the matter regarding member Goodenow for August. The only thing that's up in the air is whether I personally gonna be here or not. Mr. Robinson: I just don't know why we're even considering a petition that's not even accompanied by an affidavit from a real person. It's based upon anonymous hearsay. Why are we doing that? Mr. Adams: That's... Mr. Murai: The rules...I'm sorry... Mr. Adams: Go ahead Counsel. Mr. Murai: The rules allow the Board to...the things that you speak of are the considerations that the Board has when it decides to whether to accept or not. The problem that we have is that all we know is that a signed copy was submitted but we don't have it in front of us. Mr. Robinson: Okay. That was my discussion and anger because it seems like just a waste of time anyway. Ms. Kahakalau: So we will have to take it up in August when we have that signed copy and then go from there. Mr. Robinson: Madame Chair. On the motion that was just passed. Could we set a date certain in November when this is gonna happen? Now that we know and hopefully Mr. Kenoi can be prepared...Mr. Sing can...fresh off his trial be prepared. Ms. Kahakalau: Well I would assume it would be on our regular scheduled November meeting. I don't have a calendar in front of me right now. Mr. Murai: The second Wednesday of November is the ninth. Mr. Robinson: November ninth. 43 Ms. Kahakalau: We've been doing Tuesday's. Mr. Murai: I'm sorry...the ninth is Wednesday...if's the Tuesday then it's the eighth. Ms. Kahakalau: November eighth. Mr. Adams: I would only note that the second Tuesday is Election Day. Mr. Goodenow: I can tell you that the Campaign Spending Commission is not going to meet on the ninth. The day of the election is the date. Ms. Sweeney: Chair...Kohala. I have the calendar...it is the ninth of November because eighth is the elections so it's on a Wednesday. Ms. Kahakalau: Thank you. So do we want to put that on the calendar...November ninth? Is that okay with everybody with that? Alright... Mr. Murai: I'm sorry so that's for hearing on 2015-03? Ms. Kahakalau: Yes correct. Mr. Murai: Okay. Ms. Kahakalau: That's for hearing Petition No. 2015-03 for November ninth. To put on that agenda and I think that concludes that petition. Mr. Sing: Excuse me Madame Chair. May I ask a question procedurally with respect to that? The reconsideration of the previous deferral seems to have its inception in a request by Mr. Hyland and I just wanted to bring up if tomorrow his files another one of these request. Are we meeting next month to do this again? Mr. Adams: If I might answer that. The reconsideration was initiated by the Board. Right. So the petition...the fact that the petition is on here...if he identifies another petition and comes forward with another petition as he is obviously allowed to do as a person according to our rules and of course you know if everything is the way it supposed to be then that I would assume that it would show on the agenda. And then we would take it in you know in terms of the matter that it is. The end of the deferral and the reconsideration was initiated by the Board. Mr. Sing: Thank you I just say that because I see a letter in my file that says please consider this as a reconsideration...a request to reconsider. 44 Mr. Adams: And yes that occurred, but that was...that did not procedurally initiate the reconsideration. Mr. Sing: Thank you sir. Mr. Murai: Madame Chair I don't have anything further to add. Ms. Kahakalau: Okay then we will be moving on. b. Petition No. 2016-05: Review of draft informal advisory opinion regarding the petition from Clyde Komatsu, to determine whether there would be any violation to Section 2-83(b) of the Hawaii County Code if Volunteer Fire personnel participated in a Community Service Project. Ms. Kahakalau: Is the petitioner here? Mr. Adams: I think we're just considering... Ms. Kahakalau: Alright. Mr. Goodenow: I have a... Ms. Kahakalau: Do we have a motion for that petition or? Would that be the procedure? Mr. Goodenow: Well for the sake of argument...I'm going to say that I move that we accept though I'm going to request amendments but at this point I move that we accept the petition as drafted. I mean the informal advisory opinion as drafted. Mr. Adams: Second for the point to discussion. Ms. Kahakalau: Any discussion? Mr. Goodenow: You know Mr. Adams I really appreciate what you had to say in your dissenting opinion. Mr. Adams: This is... Mr. Goodenow: Oh am I on the wrong one? Mr. Adams; This is 05. Mr. Goodenow: Oh. Clyde Komatsu. I'm sorry I thought numerically doing the other one first. 45 Mr. Adams: Do we need.to redo the motion then? Mr. Goodenow: I'm okay. Mr. Adams: Okay. So for my point if we could have...fix my name on twelve and thirteen in the facts...findings of facts. Ms. Kahakalau: Any other discussion? Nope. Motion and Vote: Mr. Goodenow moved to accept the informal advisory opinion as drafted. Mr. Adams seconded the motion. All members vote aye. d. 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. 1. Review a dissenting order opinion drafted by Board member Adams to be included with this informal advisory opinion. Mr. Robinson: Motion to approve. Mr. Goodenow: Second. Ms. Kahakalau: And discussion? Are we discussing both the advisory opinion and the informal advisory opinion? Mr. Adams: Madame Chair I believe the dissenting is a part of the opinion so it goes together. Ms. Kahakalau: Just want to make sure. Mr. Goodenow: I'd like to move that...I really appreciate what Mr. Adams has said...I think since it's after July first anyway. I would suggest that we amend the informal advisory petition to say that...at the dually notice meeting of March 8, 2016 the Board initially reviewed...considered and I would add a sentence saying...further consideration of the informal advisory opinion occurred at the meeting today. And I would take out number eleven completely just knock it out. And we don't have this July 1 problem anymore. I think in don't know Mr. Adams of you agreed with this substance of the informal advisory opinion or if you felt we sufficiently discussed in light of the statue. I mean it's now after July 1...I mean maybe it's not appropriate to even make reference to further 46 discussion. That would solve our issue wouldn't it...I mean it would be after July 1. Mr. Adams: I guess I find myself in between a rock and hard place here date wise. I don't think that my dissent is incorrect in the sense that...in the primary sense in which it was delivered which is...I was not in favor of us taking up the ordinance that was not yet in effect as the reasoning for the opinion and it was. It was used a reasoning for the opinion. I don't agree with that because it was not the law of the land at that point. And so that continues to be my position. Mr. Goodenow: Could I ask where in the informal advisory opinion...does it include the additional...you know the review of... Mr. Adams: Twelve. Mr. Goodenow: Besides number eleven right? Mr. Adams: Twelve. Mr. Goodenow: Twelve. Mr. Adams: Twelve. And also Conclusion of Law. Mr. Goodenow: What I'm saying is let's delete that. We're here to today...as of today....we don't have to say that anymore....then we avoid having to really go into that issue of whether it's prospective or what it's not. It's after July 1...we're thinking about it today...we're amending the informal advisory opinion based on how it is now which is....Section 2-84(a)(1) and (b) as it is now. So I...amend the...well I don't know if it's been seconded but for purposes of discussion I'm just floating it out...couldn't we just amend it. Ms. Kahakalau: Can we have an opinion from Corporation Counsel in regards to the a possible amendment which would then delete section eleven and twelve? Mr. Adams: If I could just add on to that. My understanding of what we do with these opinions is that we have already voted and the opinion is our characterization of that vote. Our ability to amend in more than pen an ink changes...or I don't know if pen an ink term is the right term. So my question I guess on top of the Chair's is what's the impact moving forward of amending an opinion in this way 47 that actually changes you know our...some of the Findings of Facts and Conclusions of Law. Mr. Yoshimoto: Well my initial reaction is that you would have to in order to go back and change something that you already decided upon is to do a motion for reconsideration. Right. So then you can properly say okay you know...voting member of the majority can say move to reconsider for these appropriate reasons and you can talk about whether this issue is mute or not. It's up to the Board to decide. There's valid points being made here as far as arguably it is mute because the decision hasn't been issued in this past July 1. I don't think you could just go and just do it now without a motion for reconsideration. Mr. Adams: I'm not a member of the voting... Mr. Goodenow: I will move to reconsider this item...What we put it on our next agenda or? We can't discuss it now can we? Or can we? Mr. Adams: That's a good question. It's on the agenda as an opinion. What's the Sunshine Law implications of the motion to reconsider? Mr. Yoshimoto: Well as I recall our rules are...our Board rules are not...does not have a motion of reconsideration rule right. That's correct Board members so we talked about this in the past right so we'd have to defer to Robert's Rules. I can research it if you want right now...I haven't...I wasn't prepared to address this issue right now. What is the Board's pleasure? I can look at it right now and see and make a... Mr. Goodenow: Let's take the safe route. I don't think there's any problem just saying that we'll move to reconsider...if it passes we put it on the next....well just the motion to reconsider. Let's putting on the next agenda. Mr. Adams: Let's continue it. Mr. Goodenow: I'll file a written request to reconsider and it can put on the agenda. Mr. Adams: So I don't know that I'm able to move to continue. Maybe. Mr. Goodenow: I'll move to continue. Mr. Adams: I would second that. 48 Motion and Vote: Mr. Goodenow moved to continue the review of the informal advisory opinion and the dissenting order. Mr. Adams seconded the motion. All member voted aye. Ms. Kahakalau: We're moving into executive session now. Motion and Vote: Mr. Adams moved that we go into executive session for the purpose of considering the evaluation, dismissal or disciplining of an officer or employee of the County of Hawai`i,where considerations of matters affecting privacy will be involved or to 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. 1:31 p.m. The Board left regular session. Mr. Goodenow left the meeting. 1:37 p.m. The Board returned to regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of May 10, 2016. Motion and Vote: Mr. Robinson moved to approve the executive session minutes of May 10, 2016. Mr. Adams seconded the motion. Members Adams, Robinson and Kalele voted aye. Ms. Kahakalau abstained. 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. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure form as reviewed as indicated on the agenda. Ms. Kalele seconded the motion. Members Kahakalau, Adams and Kalele voted aye. Mr. Robinson recused himself. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII Mr. Adams: I did not prepare anything given I thought this was going a long meeting. Ms. Kahakalau: I'm looking forward to your..... 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. 49 Ms. Kahakalau: Right now we're scheduled for August 9. Mr. Adams: Which is different than our regularly scheduled meeting in the rules, but we're making it on Tuesday for this coming month. 9. ANNOUNCEMENTS Ms. Kahakalau announced the Board's next meeting on August 9, 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 1:40 p.m. Respectfully submitted: FY of.�a Emily Hi a, Se' et 50