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Home My WebLink About2016-11-09 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Tuesday,November 9, 2016 10:04 a.m. to 1:51 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 J Yoshimoto, Deputy Corporation Counsel Gary Murai, Special Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau called the meeting to order at 10:04 a.m. Board members please go ahead and introduce yourselves. Ken Goodenow, Doug Adams and we are waiting for our third member who is on his way we believe. Thank you. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We're going to start this morning with statements from the public and I only have one at this point here. Do we have any in Kohala? Ms. Sweeney: Aloha Chair. I have three testifiers for public testimony and one speaking for the petitioner....one speaking for Mr. Hyland as the petitioner. Ms. Kahakalau: Alright. Thank you very much. We're gonna start with our Hilo testimony...Ms. Margaret Willie if you could please come up. Please state your name and the item on the agenda that you're speaking to. 1) Margaret Wille (Hilo) signed up to testify on agenda item 5a, Petition No. 2015-03. Ms. Wille: Margaret Wille and its agenda item 2015-03. This is really the last instance that I see that this Board has the opportunity to do what is right and carry out your Kuleana. This matter has been carried forward to the point that it would be very easy for you to say "oh and now it's too late", but I think that would be wrong. As stated in the previous time I testified before you and as Mayor 1 Kenoi's criminal defense attorney said during his trial for theft. There's a difference standard for determining wrong-doing in a criminal case which requires a finding a specific intent, versus in the case of ethical standards, which only require s a finding that the charged party acted contrary to the county's ethical standards. The answer to the question whether Kenoi acted contrary to our County's ethics code is really a no brainer. The substantive issue is the follow up question: Do you, now that the Mayor is about to leave office, have the authority to transmit the complaint to the Council with an advisory opinion recommending an appropriate punishment. The common sense response it that you as a Board do find Mayor Kenoi acted contrary to the county's ethical standards; he is blameworthy; and there should be consequences for his wrongdoing. In fact he should be here admitting to that and apologizing and asking for forgiveness and accepting the consequences instead of having the attorneys come here and say give us another pass. Without a doubt Kenoi's actions violated the Charter, including Ethical Standards 14-2(b) and (c) which are pretty closely related. Let's take just instance—using his -card for who knows whatever services at a Honolulu hostess bar. Certainly that alone is an activity(quoting from the Charter) "which might reasonably tend to be incompatible with the proper discharge of their official duties; and as well, using "their official position to secure special privileges, consideration, treatment or exemption to themselves beyond that which is available to every other person" which are in violation of those two provisions. Assuming you have the common sense and integrity to agree that those sections of the Charter were violated, I suggest at minimum you recommend he voluntarily submit to community services, say for example, walking around the island in the footpath of recently deceased good Samaritan Clifford Kopff and pick up trash along the highway. Do something and have some kind of consequences. In addition I would ask that he apologize for his flagrant abuse of power. He did say he was sorry—but for what—without specifying what the apology is for, it amounts to no more than an apology for getting caught. And concerning his bountiful use of alcohol, don't try to say it is no biggie -just part of the Island culture. Consider that earlier this year someone who appeared to be one of the Directors in his Administration was driving drunk on Saddle Road returning to Hilo. The police were alerted by 911 calls long before the vehicle reached Hilo. Yet, despite the time to do so and the urgency conveyed, no police were dispatched to stop the life endangering drunken driving. Is that the kind of party alcohol culture you want to condone here? Much has been said about what a good guy Billy Kenoi is and that he has done much good and I agree with that but in many ways Billy Kenoi is a Dr. 2 • Jekyll and Mr. Hyde—if you are on his team and" play ball" by agreeing that he is above the laws that all other government officials are subject to—then he is the warm and friendly Mayor. But, on the other hand, if you are not willing to bend down to his whims and wishes, he is vengeful, retaliatory, and callous. As one of his Directors once said "I disagreed with him once, and never again". He rewards those who acquiesce to his wishes and bullying, and he punishes those who do not. He rules as a dictator and I believe there are many who keep quiet out of fear and which is what is see with the journalists who did his bidding even before came into their lucrative positions. When I first ran for council Kenoi aggressively campaigned against me—threatening locals who supported me "What are you doing helping that haole?" Once I was elected, he repeatedly refused my requests to meet with him about District 9 matters and in public acted in a rude and disrespectful way. So, I can appreciate why other council members and those in his administration and perhaps you on this Board are afraid of him. If this Board now gives Kenoi a pass, there will be no closure either for his constituents or for Kenoi himself. He will not only have been found to be above the law,but will also be unaccountable for his unethical conduct. So the question of the day is: will you use one excuse or another and likewise give him a pass, or will you carry out the mission of this Board and transmit this complaint to the Council along with an advisory opinion, as is provided for in the functions of the Board set forth in the County Charter. Thank you. Ms. Kahakalau: Thank you Ms. Wille and I apologize for mispronouncing your name earlier. Thank you. Can we have our first Kohala testimony please? If you go to the microphone and please state your name and the agenda item that you are testifying about. 2) Alexander Achmatowicz (Kohala) signed up to testify on agenda item 5a, Petition No. 2015-03. Ms. Kahakalau: Kohala? Ms. Sweeney: Chair...Yes I'm sorry...I think you might have missed of what I said. The speaker's going on and off. Did you? Ms. Kahakalau: No we didn't hear anything my dear. Ms. Sweeney: Okay thank you. Alright I'm going to introduce Alexander Achmatowicz. He's representing himself for/regarding Mayor Kenoi. Please go ahead and restate your name. 3 Mr. Achmatowicz: Good morning. I'm Alexander Achmatowicz and I live in Hawi and I testified at the first hearing for the petition 2015-03. One and a half years ago. And I'm here today really to pay public tribute and to say thank you to Lanric Hyland that he has really set a standard of being a public spirited citizen...and that he persisted where other people would've simply rolled over and become cynical and decided that in this atmosphere kind of corruption and old boy network that it's not worth going out of your way to do these things...but he won't turn a blind eye...he did a fantastic job standing up to really people you would consider sicker fans and toadies of the Mayor's and now he's in ill health and he can't attend himself...but he's a wonderful man and I'm here today to pay that tribute to him and that's my testimony. Ms. Kahakalau: Thank you sir. Do we have any other testimonies from Kohala? Ms. Sweeney: Yes we do. Stand by for one second. 3) Yvonne Leiser (Kohala) signed up to testify on agenda item 5a, Petition No. 2015-03. Ms. Kahakalau: Aloha. Please state your name and the agenda that you're testifying about. Ms. Sweeney: Introducing Yvonne Leiser. Please restate your name and what you're testifying about. Ms. Leiser: Good morning Board of Ethics. I'm Yvonne Leiser and I'm testifying about the issue with our Mayor. I'll be short so I'd appreciate your attention. Thank you. We are now all aware of what our Mayor did when he thought no one was looking. We're also aware of what our Mayor did when his advisors were telling him to stop what he was doing...and stop abusing his privilege...and we are very aware that he started repaying the money he took only after it appeared on the front page of a newspaper. Our Mayor's character flaws have been revealed to us. These character flaws...this inappropriate behavior is very disappointing. Mayor Kenoi had a lot of promise...he could've been a bright star for our island...for our state...but we are disappointed. We have expectations of how government officials should behave. We had many hopes for Mayor Kenoi and all I can say is we are disappointed. Thank you. Ms. Kahakalau: Thank you very much. Ms. Sweeney: The next testifier is Karen Martinez. Please restate your name. 4 4) Karen Martinez (Kohala) signed up to testify on agenda item 5a, Petition No. 2015-03. Ms. Martinez: Good morning. My name is Karen Martinez. I'm here because we need to look at the future. You people...you folks on the Board are very important at this moment because you're either confirm or confuse the people that are watching...the people that are going to be reading the paper...they're gonna find out what you're going to do. We have to look at the future because that's whose gonna judge us. Each one of you probably have children...you may have grandchildren. At some point, their gonna learn who their ancestors were and with this day and age of all the writing...their gonna be able to come and they're gonna check you out...and their gonna be able...have to decide whether they're proud of you or they're ashamed. Now if they have integrity and ethics and understand how crucial that is to democracy...then they're gonna look at your vote and ask a question. Do you want this? Do you want to set yourselves up to look like you're paying, controlled puppets? Do you want that or do you want live with an integrity and moral code that your prodigy can be proud of I think that's really valid right now and decisions...look what happened last night. We have to take responsibility for what happens on this island...I mean I can't...but you can today. I really hope you search your heart and you understand that even in an act of defiance like it would take for you to vote because you probably been told how to vote...it would take a lot of courage and I hope you have it...not just for now...but for the future. Thank you. Ms. Kahakalau: Thank you very much. Are there any additional testimonies from Kohala? Ms. Sweeney: No Chair there are not. Ms. Kahakalau: Thank you very much. Thank you for everybody who shared their Mana'o and testified this morning. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF October 11, 2016. Ms. Kahakalau: Alright. We're moving on to the approvals of the regular session minutes of October 11, 2016. Do I hear a motion? Mr. Adams: Moved approval of the minutes. Mr. Goodenow: Second. Ms. Kahakalau: Is there any discussions in regards to the minutes? I just want to say these are the minutes...so it's really...quite a feat to go 5 through it...but I would like to thank those we are doing it because you're doing and excellent job in recording the procedure so thank you. Hearing no further discussion I call for the question to accept the minutes. All in favor say aye...any oppose? That motion is carried. Motion and Vote: Mr. Adams moved to approve the minutes. Mr. Goodenow seconded the motion. All members voted aye. 4. NEW BUSINESS a. Petition No. 2016-19: Request for an informal advisory opinion from a County officer or employee, to determine compliance with Section 2-83 (c)(1) of the Hawaii County Code because her husband is an independent contractor who would like to submit an invitation for bid for IFB Project No. 3480. Ms. Kahakalau: Is our petitioner here? Could you please come up? Thank you. Go ahead and introduce yourself and just state...restate your petition if you don't mind. Ms. O'Dell: Good morning. My name is Naomi O'Dell. I am the administrator for the Vehicle Registration and Licensing Division under the Department of Finance. My husband is an independent contractor that periodical does bids for the County and currently he put in a bid for project number 3480 which I believe fall under the property management division of Department of Finance. Ms. Kahakalau: And you're basically just asking if there's any...would be any ethical concerns? Is that correct? Ms. O'Dell: Yes. Ms. Kahakalau: Okay. Do we have any questions for our petitioner or seeking clarification? Mr. Adams: This bid is under...I missed that part...under which department? Ms. O'Dell: I believe it's under property management. Mr. Adams: Which is...Department of Finance? 6 Ms. O'Dell: Yes. Mr. Adams: And so of course you are also in the Department of Finance and your connection with that department within or that division within the department is.... Ms. O'Dell: I pretty much don't really have a connection with them other than...they handle the lease for one the...one of our offices out in Waimea. That's about it. Mr. Adams: Okay...and the bid that's here has nothing to do with anything that your division has responsibility for. Ms. O'Dell: No it does not. Ms. Kahakalau: Go ahead. Mr. Robinson: And he'll make note of that in his submission for the bid correct? Ms. O'Dell: I'm sorry I couldn't hear you. Mr. Robinson: You're a County employee correct in the course of the bid application. Ms. O'Dell: Yes. Mr. Robinson: Yeah...Okay. Mr. Goodenow: An invitation for bid 3480 is done by its sealed bid...the lowest bid is awarded...is that the process? Ms. O'Dell: Yes. They have...they do it through the internet I guess. Mr. Goodenow: Right. Ms. O'Dell: It's an online bidding. Mr. Goodenow: Is it done by the procurement department or directly by the division? 7 Ms. O'Dell: I'm going to assume it's by purchasing. Mr. Goodenow: Purchasing right...purchasing department....but it is a sealed bid...right...lowest bid wins. Ms. O'Dell: Yes. Mr. Goodenow: That's how it works. Alright thank you. Ms. Kahakalau: Go ahead. What's the pleasure of the Board? Mr. Robinson: I just motion that there's no finding of...no conflict of interest. Mr. Adams: I would second that. Ms. Kahakalau: Do we have any further discussion? Mr. Adams: Yes. So back in August...we had petition 2016-12. I believe we moved on that as well and found a no conflict of interest...no violation of conflict of interest in that particular petition. That was a different department so that's probably why you're coming back was because of the department difference given what we had said in the previous finding...right. Ms. O'Dell: Correct. Mr. Adams: Okay. So we should in my opinion we should make sure that our findings include the discussion that this is...regarding this particular division within the department with the understanding that she is...her position as administrator is a separate division within the same department...but there is no connection between the work that's to be done that's being bid on in that division and her division. Ms. Kahakalau: I think that's a good...because this is a new law right and we're just kind of trying to wrap our sense around it and so in this case that's a good.point to make. Thank you very much. Do we have any further discussion? If not, I'll call for the questions...all in favor say aye....any oppose? That motion is carried. Thank you very much. 8 Mr. Adams: Thanks for coming back. Ms. O'Dell: Thank you. Motion and Vote: Mr. Robinson moved that there is no conflict of interest. Mr. Adams seconded the motion. All members voted aye. 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." (Continued) Ms. Kahakalau: We have two correspondences in our packets. One dated October 27, received from Lanric Hyland. Another one dated October 28 and then I believe...wouldn't we also have to add the correspondence that we received from Mr. Eddins. So we're just informally adding that onto the agenda or can we have a... Mr. Goodenow: I'll move that we accept and file the correspondence from Mr. Eddins. Mr. Adams: Second. Ms. Kahakalau: Any discussion in regards to that? All favor say aye. Motion and Vote: Mr. Goodenow moved to accept and file the correspondence from Mr. Eddins. Mr. Adams seconded the motion. All members voted aye. Mr. Adams: Chair I would just point for sake of the record that we have a new Counsel for this particular... Ms. Kahakalau: For this particular agenda item...we have a new Counsel who comes from Maui. Thank you. Mr. Goodenow: Madame Chair before we start...sorry just a point of order or question of where we're at...there's a pending...we deferred the motion to hold a hearing...informal advisory or hearing and then...until the end of the criminal trial and then that was continued to this date. Is there a pending motion or do we need to make a new motion? What is our status on this? 9 Mr. Adams: If I might. I'd like to hear from Counsel. I'm not sure whether the motion that we made back a few months ago when we agreed to take this matter back up here in the November meeting was either a decision to hear the petition or was actually a decision to hold an informal hearing. So in either case I think I'd like to know that and the second would be to answer Vice-Chair Goodenow...I think hearing from petitioner or petitioner's representative and then also the respondent would be part of the procedure...but I defer to Counsel. Mr. Murai: Good morning members, Deputy Corporation Counsel Gary Murai acting as special Counsel to the Hawai`i County Board of Ethics. I'm looking at a September 22, 2016 memorandum to Mr. Hyland and Mr. Eddins wherein the Board's secretary informed the parties that today's hearing would be for informal hearing on the petition and that it was also requested that all parties appear at...anyways that's where we're at. Ms. Kahakalau: And then could you please explain what responsibility or steps then either the petitioner or...how would they respond or should they respond to this correspondence. Mr. Murai: Well...generally speaking...informal hearing are the opportunity for the Board to pose questions to the parties...for the parties to submit information or evidence if they have any which may be helpful to the Board in reaching a decision on the petition. Ms. Kahakalau: Thank you. Mr. Goodenow: One other question on that. The respondent can ask if they want it to be a closed hearing or not. Is that correct? Mr. Murai: The respondent may request that the hearing...well first of all the hearing starts off by default being an open hearing...however the respondent may request a closed hearing if he matters may infringe upon anyone's rights to privacy. I'm sorry I just wanted to add one more thing about informal hearings. The Board kind of has a fairly wide range of options and a great deal of flexibility how it wishes to conduct the...it's the informal hearing. If they Board feels that the record is sufficient upon which to make a decision. The Board may render an advisory opinion at that point without...you know hearing or soliciting any further evidence. All the way to having the parties make presentations. 10 Ms. Kahakalau: And then one more question in regards to the closed hearing would that be the...have to be the petitioner themselves or could it also be a representative who request a closed hearing. Mr. Murai: Well it could be the petitioner representative and upon receiving the request...the Board would have...it either would have to be by motion...approved by at least the three members of the Board to grant the request for a closed hearing. Ms. Kahakalau: Alright thank you. Do have any other questions for our Counsel? So I guess my first question to the Board would be if you folks feel that there is sufficient record at this point in time for us to make a decision without hearing anybody because that was what you had mentioned that's an option so I just want to make sure that we're all clear you know. Mr. Murai: That's correct. Mr. Adams: My view is we need to give them the chance to have their say...we have a member on the Board that's not actually been part of the prior discussions as well. So I think my view is that we should go forward. Ms. Kahakalau: I think we're in agreement to that, but I just wanted to make sure that we're following the procedures and not leaving out a step for some reason. Mr. Murai: Well...Madame Chair. I'd also like to note that I've been in receipt of correspondence that was recently submitted by the respondent's Counsel and by Mr. Hyland. One thing I wanted to point out was that I think as recently as this morning...before I left my office...I've been seeing email correspondence from Mr. Hyland that I don't believe Mr. Kenoi's Counsel had been copied with so I do...if the Board is gonna...I'm not sure even the Board members have seen it and if they haven't seen it and the Board is not going to consider it then that's fine. If the Board has seen it then we'll consider it then I'd suggest that it be provided to Counsel as well. Ms. Kahakalau: I didn't see anything and I think we need to you know given how long this meeting was scheduled...I think people need to adhere to the timeline of submitting testimonies or statements in a timely manner...so unless somebody has an objection then we're not going to entertain that latest correspondence because I certainly didn't see it. Thank you. Okay so...we have petition number 11 2015-03 and so I would like to call up...petitioner first? The petitioner...is Mr. Hyland available? Ms. Sweeney: Chair Mr. Hyland has a representative here...Yvonne Leiser. Mr. Goodenow: If I could ask our Counsel. Is that...problematic I mean...I don't know if this person is an attorney... Mr. Murai: If I may...you're not required to be an attorney to represent a party in an administrative proceeding. In other words Mr. Hyland...well here's my concern is...we don't have Mr. Hyland here to tell us that he's being represented by someone. Not that I'm casting aspersions on this person's ability to represent Mr. Hyland...but certainly it's...I would certainly suggest to the Board that we somehow confirm that Mr. Hyland has authorized representation. Ms. Kahakalau: Kohala. Ms. Sweeney: Chair if I may. The lady sitting here is in possession the October 28 letter that she just wants to read publicly that Mr. Hyland submitted to the Board. Ms. Leiser: Handed to me by Mr. Hyland. Ms. Sweeney: Handed to her by Mr. Hyland. Ms. Kahakalau: It would've been something during the public testimony, but I think since it's clearly his words...please go ahead and read your...read the letter. Mr. Murai: I'm sorry Madame Chair. Are we accepting this as public testimony? Or as a...is it being read as public testimony or being read by a representative of Mr. Hyland. I think there's a distinction. Mr. Goodenow: I would suggest it be public testimony. If we don't have authorization from Mr. Hyland saying you know I'm appointing her. I think we let her read it just as public testimony. It's my opinion anyway. Mr. Adams: I'm not sure that it actually is much of a distinction given that it's...we recognize it as Mr. Hyland's words and we accepted as that. The fact that she's reading it without any additional discussion of her own...I understand the point in terms of is it the...is it a representative meaning...is it the petitioner's testimony versus is it public testimony. I'm of the opinion that we need to be 12 expansive here in our acceptance of the information we're receiving. Mr. Murai: That's fine,but you know one more thing I'd like to query or raise with the Board at this point is...before we begin the informal hearing I do want to note that and I'm not sure whether the Board members have received this on Monday is was copied with a memorandum filed by Mr. Eddins on behalf of the Mayor and it would generally speaking was a memorandum in opposition to the petition and it as I could discern it asked for two things that either the petition be dismissed or if the petition is not dismissed that it be set for a formal hearing. I also wanted to note that in Mr. Hyland's October 28 memorandum which I believe is going to be read. I believe it was in that memorandum that he also is asking for a formal hearing as well. Now I do want to note that this matter has been calendared for some time as an informal hearing and that these submissions come very late. However, I do suggest that the Board at some point address those requests. Mr. Adams: So Madame Chair if I may. According to our procedures...we have to go through the process of an infoinial hearing before we can get to a fotival hearing. So understanding I've seen both of those requests, the informal hearing is held before we actually consider a fon-nal hearing and actually our idea of being able to consider a formal hearing is based on whether or not after the informal hearing opinion has been provided that the individual that is receiving that opinion actually has not met it...and so those two steps have to occur before we can say we're going to move forward with a foinial hearing. Mr. Murai: That's what I meant by addressing those requests. Ms. Kahakalau: Do we need to make a motion in regards to that or...I'm in agreement as well. Mr. Adams: I was going to make that comment when we got to the point of having the discussion, but we can...that's just part of the procedures...I don't know if there's a motion that's necessary as a part of that. Mr. Murai: I'm not sure...I don't a motion is necessary it's more...we're already in the hearing and.... Mr. Goodenow: Right. My understanding is there already has been a motion and that's what we're here for today to have the informal hearing. 13 We've already moved to have the informal hearing and that's where we are. Mr. Murai: Members...I'm not trying to persuade you one way or the other. I'm just trying to point out or make a record of the state of where we're at. I don't disagree that this has been set for an informal hearing and that's what we're doing now. I just wanted to ask the Board whether they had number one receipt of the request and as member Adams has discussed...he's a rendered his opinion or his take on the effect of those request at this point. So Madame Chair we will proceed as you wish or direct us. Ms. Kahakalau: Yes. Thank you. Well...in absence of any of the members having any issues with conducting this informal hearing which we set for today based on a motion that was done on September 22 I think so. I think we're gonna move forward with the informal hearing unless I hear objections from any Board members. Also before we go further...I do want to disclose that I don't remember the exact time or maybe in 2008 or something...I received an award from Mayor Kenoi. That's just a disclosure...there was no money attached to it...it was just a leadership award for creating an environmental platinum lead certified building in Waimea. Okay. So go ahead please read the correspondence dated October 28 from Mr. Hyland. Ms. Sweeney: Thank you Chair. She'll proceed now. Ms. Leiser: Thank you Chair. As you said this is the letter from Lanric Hyland dated October 28 that the Board has. Dear Board Members I wish to file a petition with the Board to request a formal advisory opinion as to the following question: "Did former Mayor William "Billy" Kenoi violate Hawaii County Code §2-83(a)(1) and §2- 83(b)(4) during his tenure in office?" I make the request for a formal opinion pursuant to §2-87 since his ability to comply with §2-86's informal opinion ("The officer . . . shall comply with the informal advisory opinion issued by the board.) will become impossible upon Mayor Kim's being sworn into office in early December. I am asking for a formal opinion including Findings of Fact and Conclusions of Law, following the process set forth in §2- 87(b) and (c). I file this petition pursuant to Hawaii County Code Section 2-91.2: (f) the board of ethics is hereby empowered to receive petitions from, and render infoilnal and formal advisory opinions to: (2) any member of the public concerning the conduct of a former officer or employee. The board may initiate an investigation to determine whether the conduct of a former officer or employee is in violation of this section. The specific sections of Article 15 Code of Ethics I accuse him of violating are: Section 2- 14 83. Fair treatment. (a) Officers and employees of the County, while discharging their duties and dealing with the public, shall adhere to the following precepts: (1) All public property and equipment are to be treated as a public trust and are not to be used in a proprietary manner or for personal purposes without proper consent. (b) No officer or employee shall use or attempt to use the officer's or employee's official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others, including but not limited to the following: (4) Using County property, facilities, equipment, time, or personnel for private business, campaign purposes, or for any purpose other than for a public purpose. As initial details for the Board to contemplate while it considers whether or not to exercise its discretion under §2-87(a), I incorporate herein by reference my Petition No. 2015-03, Addendum I and Addendum II thereto dated April 7, 2015, the Testimony of Lanric Hyland dated 5-13-15 (attached hereto), and my letter to the Board dated March 5, 2016. That, plus any other "facts" the Board sees fit to consider, is the "record" which the Board may use as the basis for the exercise of its discretion. In my Testimony of Lanric Hyland I have quoted a couple of HRS statutes. I respectfully suggest you consider the wording of those statutes not as laws but as descriptions of behavior the violation of which would be unethical. Then, if by a preponderance of the evidence you find that he in fact committed behavior which violated that behavior, you would have an objective basis for finding his behavior unethical. I look forward to learning at the November 2016 meeting whether or not the Board accepts this petition. Hopefully yours, Lanric Hyland. Thank you. Ms. Kahakalau: Thank you very much. Do we have the respondent to the petition here and could you please come up. I guess our first point of order would then be to ask you whether you requesting a closed hearing. Mr. Sing: Well I think before we get to that. I share the concern that I'm not exactly sure what we're here for. Ms. Kahakalau: I'm sorry could you please state your name. Mr. Sing: Sorry. My name is Richard Sing....I'm for Mayor Kenoi. Mr. Eddins: My name is Todd Eddins. I'm here for Mayor Kenoi. Ms. Kahakalau: Thank you. 15 Mr. Sing: And so it's hard for me to answer that question because we've calendared this apparently as a hearing for an informal advisory opinion yet no one has come before this commission and requested one. Your own rules 4.2 says that it can be requested, but Mr. Hyland hasn't requested one in fact he previously withdrew it by indicating he's never going to appear again. He in fact hasn't appeared and now is asking for something different. So I would request that 2015-03 simply be dismissed because no one' asking for an advisory opinion at this point. Mr. Adams: You're continuing with your testimony? Mr. Sign: I'm not giving testimony. I haven't been asked any questions and very little presented to us to respond to. Mr. Goodenow: If I may I mean I...sure understand your position and I don't know how we'll even proceed without the petitioner here. I don't know evidence has been submitted in any case, but I do think since we are here for an informal advisory opinion...that's the motion...that's what we're here for. We should ask if you want a closed hearing or not before proceeding. We don't want to ask questions and get a response. Mr. Sing: I guess it's hard too I mean the rules indicate that we can ask for one...I would have expected a request from the commission prior to today so we could have known what to expect here. Mr. Goodenow: Understood. Mr. Sing: So it's difficult. If we're going to move forward with a request that no one's making...do we want that heard in a closed hearing...I guess so yes. Mr. Goodenow: Then I will move that we move to a closed hearing. Ms. Kahakalau: Do I hear a second? Mr. Robinson: I'll second that. Ms. Kahakalau: Do we have any discussion in regards to that? Mr. Adams: And so the privacy measures that would be I mean we would do this because of privacy measures so what are the privacy measures were talking about here? 16 Mr. Goodenow: This is a personal matter...there may be information about his personal finances that we don't know. It's could be a...I mean it's a personnel type of issue. I think any other County employee be certainly would have no question of having a privacy...all be it there's been a trial that's a lot out in the public. There may be some components I mean that other charges that aren't related to what was in the trial so I'd say it's definitely their privacy issues. Mr. Adams: I appreciate that I think that on the whole I would have to come down on the other side of that...that this is sufficiently an issue of public notoriety that having a discussion about how it's going to be handled and the issues associated with it need to be on the record. That would be my view. Mr. Goodenow: Just add to that I would note that any vote and any decision making would have to be public and as would be any written decision...I mean in my opinion I don't know if Mr. Murai would concur with that. There are two steps here and I'd say the first one involving perhaps personal finances and employee related matters. It would fall under category of requiring a closed hearing. Ms. Kahakalau: As far as procedure wise is concerned...generally the practice has been that the responding request a closed hearing prior to and we also have the option of asking people when they come here whether they want to have open or closed hearing. It's generally been the respondent being present to make that motion. So I am very, very disappointed that the respondent is not here. The Mayor is not here because I feel you know that this really warrants his presence and his request to have a closed hearing. Do we have any further discussion? I call for the questions...anybody opposed please say no and anybody... Mr. Adams: No. Mr. Goodenow: Yes. Mr. Robinson: After hearing discussion I'll say no. Ms. Kahakalau: No...so we have three no's and one yes. So the motion is not carried. Motion and Vote: Mr. Goodenow moved to go into closed hearing. Mr. Robinson seconded the motion. Members Kahakalau, Adams and Robinson voted no. Mr. Goodenow voted yes. Ms. Kahakalau: Mr. Goodenow? 17 Mr. Goodenow: I guess we're proceeding then with the informal hearing. I...you know I'm really conflicted because on the one hand the petitioner has not submitted anything other than newspaper articles. Yes we all read the papers...we've seen television...but I mean this is you know a qua-si judicial proceeding...generally you have the petitioner submitted evidence. I mean we're here and there's nothing that's been submitted. What evidence do we have presented by Mr. Hyland? That really...makes it...complicated for me because on the other hand...the Mayor aside I think our County employees need some kind of guidance regarding using the p-card and it seems apparent that the issue isn't very clear and I think if would be good for the Board to send a message to say it may not have been clear before but hey from this point on you shouldn't use your p-card for private use and if something incidental happens...you know after being notified in a reasonable time...you know you need to pay it back. I think we need to...you know based on...both what's in the Charter and the Code as far as you know in an essence it could be seen as an interest free loan right...so I think we should do that but again we don't have a petitioner...nothing's been submitted...what are we really looking at? Mr. Adams: So if I may Madame Chair. We're still in the testimony from the respondent position. Mr. Goodenow: Oh I thought that was over. Mr. Adams: No...they've asked a question that has to do with you know what's the petition...the petition is 015-03. It was provided April 17, 2015. All of the correspondence that I'm aware of has been provided to the respondent that's associated with it. We've received all of that correspondence as well. Through a series of motions, we have come to this point where we are now considering it in an informal hearing stage. It's never been dismissed and so the fact that we don't have...well I'll get to that as part of the discussion phase...and so I Madame Chair I would invite further testimony if there is further testimony from the respondent's representative. Ms. Kahakalau: I agree...I was going to suggest the exact thing. Mr. Goodenow: My apologizes. Ms. Kahakalau: So could we please have any response or do you have any response to Petition No. 2015-03? 18 Mr. Sing: So I think preliminarily...we object to proceeding without the petitioner being present. We object to representative of the petitioner being permitted to provide testimony. We object to this Board moving forward with an informal advisory hearing without any request contrary to its rules. If we are having a hearing and believe me I mean if we're moving forward...we're requesting the hearing as well cause we don't agree to this. Pursuant to your own riles...when the respondent request a hearing and disputes this...then'it's to be deemed an investigatory hearing and the commission needs to take action to investigate this or accept other information from the petitioner. Vice-Chair Goodenow's point is very well taken. We're in a position where we've won a trial. It's been established...the Mayor's not thief...the Mayor's not a liar and we're moving forward this petition and this petition is predicated...the first sentence of it says that Mr. Hyland cannot abide by Mayor being a common thief and remaining in office and so that has now been established not to be true and we can provide the commission with a copy of the acquittal if that will assist in the decision making process here...but I think we're not following the rules of the commission and now we're being asked to respond to some somewhat specific although very un-particularized allegations. There's newspaper articles which during the course of the last eighteen months have been hit and miss at best. There's been wide miss-information...at this point Hawai`i News Now still hasn't been getting right. So we're in a very difficult position...so we don't even know exactly what conduct we're being accused of so that we can respond properly. So you know we object to the process. He's been acquitted and there's been really no evidence presented to this commission that any ethical violation has occurred and in addition...the ethical violations that are alleged by Mr. Hyland I think the first two clearly cannot form the basis...you know one is the enactment and policies section...and finally the final allegation....like I said I'm reluctant to respond to it because I don't even know exactly what the allegation is. You know it seems to be this general, broad he did wrong and that's a very difficult thing to respond to in a formal setting. No court of law would let that go forward and I respectfully submit that this commission shouldn't either. Ms. Kahakalau: Well. To me the allegations is clearly stated in Petition No. 2015- 03 that the alleged violations are Sections 14-1, 14-2, 14-4. So I see where there is a confusion about what the allegations don't are...that's just me. You know when we heard this earlier...we wanted to make sure that the Mayor got a fair trial and so there was a reason to postpone that based on that opinion...but the issue had been out for quite a while...we know what the issues is which is a 19 violation of specific sections of the County Charter and here we are now to discuss that. I mean I feel very strongly that we really accommodated the Mayor at a very high level to ensure that he would have a fair trial and I think that has happened to the best my knowledge and as was pointed out there's a difference between a criminal trial and ethic violation. So I don't see why we should not move forward. If you are finish with your presentation with a discussion by the Board. Mr. Sing: I might just finally ask that you know an individual shouldn't be put in a position where you have to choose between your rights. Your rights between a fair trial and your rights to be fairly treated in an administrative setting. Usually when an accusation is made...it's not just the accusation...but somebody comes and tells you these are the facts that support this allegation and in this case...there's newspaper articles and respectfully you should not rely on that. You should either expect evidence to be presented by the petitioner or if you gonna go into an investigatory sort of mode then this commission should've investigated...but we shouldn't have to choose about who we want to be treated fairly by and for all those reasons I respectfully think that this petition should be dismissed. Mr. Hyland wants something else at this point. Ms. Kahakalau: Is that the conclusion of your...both or your responses at this point? Mr. Sing: If the commission wants further infonnation from us...we can get you the transcript to the trial. We've ordered it, but it's you know it's pretty fresh so we don't have it. Ms. Kahakalau: We understand that thank you. We already tried to get it as well. Thanks. Any further comments? Okay so hearing no further comments...we're in the stage of a motion if somebody wants to make a motion. Mr. Goodenow: I think we have a pending...oh no I guess there isn't a motion. I do have a procedural issue. Question. I mean I'm looking at the original petition and I will admit I mean it's saying he wants him removed from office. It has been our practice though to treat these petitions as a request for an advisory opinion under Rule 4.2. I just was asking our Counsel or Mr. Adams as to you know Mr. Adams made the comment earlier that the procedure is we've first have to have this advisory opinion...an informal one and then after that a formal opinion can be requested by the respondent. I'd just like some clarification on that. 20 Mr. Murai: Mr. Goodenow are you asking me? Mr. Goodenow: Well either of you. Mr. Murai: Members if the...as I understand it...Mr. Sing has raised concerns about why we're here and they've also made request in writing for a formal hearing and if the Board understands you know where we're at and what the request is and the status of this case then the Board should proceed based on its knowledge...however...if the Board does have questions or doubts or concerns about its powers, duties, privileges, immunities and liabilities then I would recommend that the Board entertain a motion to go into executive session so it may consult with its Counsel. Mr. Goodenow: I will make that motion then. I move that we go into executive session for the purpose of discussing the Boards privileges, immunities, liabilities stated by Mr. Murai then. That phraseology. Ms. Kahakalau: Do I hear a second? Mr. Adams: Second for points of discussion. Ms. Kahakalau: Okay so let's discuss the motion. Mr. Adams: We're having this all in the open. I'm not really sure what we're gonna...I guess I would defer to Counsel if there's a feeling that we need to address some of these concerns in closed hearing so. Mr. Robinson: Just for point of discussion...we're gonna have an open hearing today. We're just gonna go into executive session to confer with Counsel regarding a few items. Mr. Adams: Boards issues. Mr. Robinson: Right. Mr. Goodenow: Boards powers of how to proceed...what our options are. Mr. Adams: Right. Mr. Robinson: But our petitioner's not here...the respondent is here...Mr. Eddins did a good job of responding in his letter. I'd like to hear more information about that. So we will be coming back. Mr. Adams: Yes. 21 Mr. Goodenow: Yes. Ms. Kahakalau: Yes. I'm in agreement with the executive session just to be perfectly clear on what our Kuleana and our liabilities etc. are. Mr. Robinson: Correct. Ms. Kahakalau: So any further discussion? Then I'll call for the question...all in favor of going into executive session say aye...any oppose? That motion is carried. So we will go into executive session and then we'll let everybody know when we're finish. Thank you. Motion and Vote: Mr. Goodenow moved to go into executive session. Mr. Adams seconded the motion. All members voted aye. Ms. Kahakalau: So for executive session it means that everybody has to leave the room and then we'll let you know as soon as we're finish. Thank you so much. 11:07 a.m. The Board moved into executive session to discuss 11:19 a.m. The Board returned into regular session and took a brief recess. 11:24 a.m. The Board returned from recess. Ms. Kahakalau: So I am calling the regular session for the Board of Ethics back to order and I would like to just notify everybody that our Vice-Chair Goodenow had to take care of some personal business and will be back as soon as possible...but we still have enough quorum. Do we want to continue by asking our respondents to come forward? Mr. Adams: Please. Ms. Kahakalau: Yes. Thank you. Mr. Adams: His representatives. Ms. Kahakalau: The representatives of the respondent. Mr. Sing: Richard Sing and Todd Eddins again present. Ms. Kahakalau: So I just want to make sure at this point we have concluded any kind of statements that you would make at this time and we're 22 going to open it up to discussion as far as prior statements and we're now in the phase of making a motion on... Mr. Adams: Or perhaps asking questions. Ms. Kahakalau: Or asking questions of the respondents before we make any motion. Mr. Adams: Right. I didn't know if member Robinson had any questions he wanted to ask. Ms. Kahakalau: If you could turn on your microphone please. Mr. Robinson: So you're here today representing the Mayor. We're just curious...is the Mayor gonna appear as well? Mr. Sing: He was not planning on appearing today. No. Mr. Robinson: Okay...because the initial letter that was sent talked about the appearance of the respondent. Mr. Sing: I think again the problem is we want to make sure exactly what this hearing was. Your rules don't require his presence. Nobody has specifically recently come to us and said the Mayor needs to be here. It's hard when we can't exactly tell what this petition is being predicated upon because the evidence we're received is just some newspaper articles. So I'm not sure the commission was contemplating quizzing him without any sort of notice about what conduct so no he's not going to appear here today. Mr. Robinson: Okay. Thank you. Ms. Kahakalau: Okay so we requested that all parties attend this meeting in a formal letter to you and to the Mayor and also to Mr. Hyland and it had...under unfinished business agendized as a petition which means you know that this is the time that we ask both the petitioner and the respondent questions. That's what an informal hearing does and that's usually what we do so we were you know under the assumption especially since there was no question from either one whether they should be there or not be there or need clarification that it was clear that when you get a request from the Board that all parties are present that means that we would like all parties to be present. So that's kind of where we are coming from. Mr. Sing: And I understand and we don't mean any disrespect, but Mr. Hyland in August sent you a letter saying he's not going to 23 participate any further. So I mean isn't that a withdrawal of this petition? Especially given what he said here today thru his representative. Mr. Adams: My understanding Madame Chair is that when we accept the petition and it has been brought forward...that we have a variety of options. Dismissal is one, informal hearing is another and the fact that...if the petitioner comes forward and says they want to withdraw that's entirely their right to make that request...but once it's on the docket...doesn't mean that we necessarily accept that and because we're having this informal hearing...it's pretty clear that we didn't accept that request. Mr. Sing: I hear you sir. I don't think it's clear. No one has asking for an informal hearing at this point. Mr. Adams: As you know because you're familiar with our rules and the ordinance...we have the ability to continue this petition on our own. Mr. Sing: And we've had no notice of that switch. Mr. Adams: I'm not sure that the fact that it's been agendized for the last few months...year and a half when it's been on the agenda when we've had a quorum doesn't serve as that notice. Ms. Kahakalau: Yes and especially since we did postpone it specifically to accommodate the Mayor and making sure that he would get a fair trial because otherwise this whole matter would have been taken up a lot earlier...but we did really go out of our way to make sure that there was no infringement on his rights to have a fair trial and so this was and at that time already were very clear that it was going to be agendized in November and therefore the presence of the person whose being allegedly accused of these violations...we expected them to be there and to respond to our questions. Now if you would like to I guess I do have questions and the absence of the Mayor I don't know who else to ask...but the two of you in regards to the violations that the...the alleged violations. Mr. Robinson: If I could Madame Chair. Mr. Sing when you were here previously and I think Mr. Eddins was here previously as well and we were going thru this process and we talked about delaying this until after the formal court hearing. There was an assumption I would assume by you that what we were delaying was this informal hearing and it was moving forward correct? 24 Mr. Sing: I knew that this was gonna be set for this day. Mr. Robinson: Right. Mr. Sing: And exactly what is going to be set is unclear. I mean the idea that we're also asking for a hearing...your own rules say it then switches to an investigatory hearing and my understanding or at least we received nothing from the Board that you've undertaking any sort of investigation. Mr. Robinson: My question is why didn't you raise all this previously when you were here before and you or Mr. Eddins both were here before...different times...sometimes together....sometimes separately. Why didn't you bring this up? You came up and spoke before the Board. You never at one point said we don't know what kind of hearing this is. You understood clearly what we intended to have today and the we talked about delaying it until after the court case which we're more than happy to do because we felt it was the right thing to do and now it's like all of a sudden oh we didn't know what kind of hearing this is and your rules don't really allow you to have that. It seems a little disingenuous to have that discussion after the prior appearances before the Board by you as a layman...that's how it appears to me. Mr. Sing: I don't think that's the case at all. At the prior hearings the issue was deferment and we were not asked to specifically respond to the petitions. In fact that was the point is that we weren't responding and we weren't moving forward and that there was a deferment to ensure the fair trial of our Mayor here. The idea that now today we should capitulate and give up any sort of due process rights or fairness or the idea that we shouldn't be privy to what evidence you're going to consider before you issue a faunal ruling or informal ruling. I thinks that's somewhat disingenuous. Mr. Robinson: Okay. Ms. Kahakalau: Alright so I just want to double check with our Counsel...at this point asking specific questions is okay before we have a foinial motion? Okay so I basically expected the Mayor to be here since we did send a request that all parties attend this meeting and I had prepared questions for the Mayor. So my question is...is there any way that we can take a recess and the Mayor be here so we can ask those questions to him because it would make more sense to ask him then to ask you...right...because I mean that would be like he said she said kind of a thing. 25 Mr. Sing: I agree with the last part. I think your question should be more properly directed at the petitioner who's making accusations on what his grounds are. Mr. Adams: I appreciated that Mr. Sing, but you have a specific question from the Chair about the Mayor. Mr. Sing: I don't believe the Mayor is going to appear today ma'am. Ms. Kahakalau: And you know that in itself makes it extremely difficult. I mean then all I can go by is what the petitioner has...the alleged violations because as I said I don't think it makes sense to ask you if let say using just one example is did the Mayor pay the p-card bill in full each month to the County as the charges were put on there. You know....that's kind of a rule of the p-card and I just wanted to know yes or no...were the charges paid that were put on there that were not part of the p-card within one month of putting them onto the card. Like that's just one example you know. Mr. Sing: That's not one of the allegations here though. Ms. Kahakalau: It says p-card violations. Mr. Sing: I'm I asking now...is the commission now considering the policies and procedures of the p-card? This document because we haven't received any notice of that either. All we've got is Mr. Hyland's petition and the newspaper articles. I don't know what is being considered here. Mr. Robinson: So if I could then...so you received the notice...you read Mr. Hyland's petition yet you did not read the purchasing card holder agreement that all the County...you haven't read that yet...you haven't seen that. Mr. Sing: That's not at all what I'm saying sir. What I'm saying is I don't what you're considering. Mr. Robinson: • Okay. Mr. Sing: That's fundamentally unfair for us to respond when I don't know what you're considering. The p-card policies and procedures permit purchases by the Mayor. The testimony at trial was specific that he was authorized to engage in his conduct. So I'm not sure...like I said don't know what you're considering. 26 Mr. Robinson: Mr. Eddins response letter of November 7 was very clear in responding to all the particular points that Mr. Hyland had raised in his original petition. Mr. Sing: Procedurally. Mr. Robinson: Procedurally. Mr. Sing: Yes and we stand by all of those. Mr. Robinson: Okay. Mr. Sing: But the question was more substantive and that's one of the fundamental problems is we have...we don't have any specific accusations here. Mr. Robinson: Well Mr. Eddins spent quite a bit of time responding to what we're I thought accusations by Mr. Hyland. Mr. Eddins: In that response we were very clear to indicate that none of the accusations by Mr. Hyland were particularized. That was pretty clear. What we then addressed was since he simply referenced codes sections...how each of those codes sections was inapplicable on its face based on what he claimed in his petition which was not particularized so when the Chair's asking particularized questions that's what Mr. Sing is referring to about the fundamental on fairness of this. Moreover, the trial record has established all those issues. The fact that this Board has apparently sought the trial transcript suggest that we are in investigatory mode and that's the way it's proceeding. We also have requested the transcript and we will have that ideally shortly and all those issues with respect to the Hawai`i County Charter...the Hawai`i County Code and indeed the p-card policies...not the shareholder agreement...suggest that the Mayor was authorized as Mr. Sing referenced and it's hard for us what he's talking about is to address any un-particularized assertions and that's the fundamental problem...due process wise that we have here. Mr. Murai: Madame Chair if I may. I heard you say earlier and Mr. Eddins had mentioned that our request for the trial transcripts for the criminal matter...I don't know if you asked for it personally...but staff has not asked for it. Ms. Kahakalau: I did have a discussion...oh my goodness I had so much stuff on my plate this week. My recollection is that I did communicate with the staff in regards to the transcripts. 27 Mr. Murai: I'm sorry I didn't hear that. Mr. Adams: She thought she did it. Mr. Murai: Oh okay. I believe that was...it wasn't a request for a transcript. My understanding was a copy of the judgement of acquittal. Ms. Kahakalau: Okay...I stand corrected. Yes...that's what I asked for. Mr. Adams: Madame Chair if I may. Given the November 7 letter...if I could address a couple questions that I have associated with that. Second page...the paragraph associated with 14-1. I guess I should first make sure that we identified that this is Charter as opposed to Code. When we refer to 14-...anything in here...we're talking to the Charter and the Code of course is a...actually article 15...right...and so the petition that was provided to us is 2015-03 references...as is allowed...Charter violations...alleged violations of the Charter and that's part of the reason for the un-particularized nature I would imagine of the petition. Now when we take a look at 14-1(b) identify that as a policy provision...of course it is as a part of the initial section of the Charter. The fact that it does not . and cannot serve as a basis for a specified allegation...could you just talk a little bit more about that...why you feel that way. Mr. Eddins: 14-2 to 14-4 are what the possible ethical violations are not 14-1. Mr. Adams: So 14-1(b) is a...the interesting thing for us is that...that provides the bucket that we have to operate within and so although you're correct that 2, 3 & 4 provide some specifics. We're also obliged to take into account the whole of conduct and make sure that it is sufficiently reflective of 14-1(b). So that doesn't necessarily help when it comes to identifying some particular allegation necessarily...but I would just say that at least for me I take a look at 14-1(b) and in the article 15 of course...the interpretation of Section 2-80 which calls for the article to be liberally construed to promote the high standards of ethical conduct in County government. Both of those things to me indicate that we have a responsibility on this Board to look at these not just in the narrow niche area...but also in the broader idea that I think 14-1(b) brings. Okay. In 14-2 as a part of the discussion that I assume that we will have as a part of 14-2. I agree with you...I don't think there's anything in 14-2...in the Charter that is...that the petition or in the evidences associated with the petition is violated in 14-2. However...because I don't think that there's a conflict of interest primarily...I don't think that's an issue here for me. When I go to 14-4...the concern I have has to do with the...or the question I 28 guess I would say is the paragraph that falls below the County code provision "a"that you quote...where we talk about public property and equipment. The idea that that is...equipment is only tangible equipment. Could you address that just a little bit more for me? Mr. Eddins: I said it set forth in the paragraph that it's on page... Mr. Adams: Three or four. Mr. Eddins: Page four. Mr. Adams: You have nothing to add to that? Okay. I'm not sure I necessarily would concur with your depiction here that public property and equipment as identified in 14-4 only refers to those things that are going to be...things that you could handle...if money is taken or if intangible assets, securities or other types of intangible assets or property are somehow miss-appropriated...that of course would be for me an ethical violation and so just because it's not a tangible piece of property wouldn't necessarily mean that it would fall outside of the public property and equipment piece of that. So do you have any comment on that? Mr. Eddins: It's a matter of law that we disagree with you on...but that's not the primary point with respect to any alleged 14-4 ethical violation as set forth throughout the document we submitted. The trial established under Hawai`i County Charter, Hawai`i County Code and even policies and procedures of the County i.e. p-card purchasing agreement from 2003 and 2013 that's in place in this County. All three of those established the consent that there was not action without proper consent. That is the kruk's of the matter here. Whether it was authorized or un-authorized. The points you just made seemed to be a disagreement between you and us and whatever higher court may decide on the interpretation of that subsection...but the larger point is what we have been indicating throughout this proceeding...throughout that filing is that the trial established certain things and the trial established the authority that this County's Mayor whoever it is has and if you look at the trial...if you look at the transcripts of the trial versus newspaper articles then you will see that and you will see there's no ethical violation. Mr. Adams: So in your letter on page 3, you make that comment that the trial established the broad and expansive authority possessed by the County of Hawai`i Mayor pursuant to Charter and Code granting specifically in 5-1.3...discretionary authority of a CEO reading the Mayor is the chief executive officer of the County vested with all 29 the executive powers of the County and establishing that the Mayor has broad...the trial establishing that the Mayor has broad and expensive discretionary authority rooted in Article 16, 2-98 of the Hawai`i County Code and due to the unique functions of the Mayor...position necessarily and explicitly treated differently with regard to County policies and procedures, such as the purchasing card program procedures. Which of course you brought that up not us...and so...if I look at this...I just want to make sure I understand...this essentially to me says that the Mayor is above the rest of the employees and officers within the County. I'm not talking about the County Council...but other than the Council...we're talking about that the Mayor is above because of those provisions establishing both all the executive powers and that the Mayor's going to be treated differently with regard to these policies and procedures...is that what you're saying to me? Mr. Eddins: No. I'm saying what we said in the letter and what was established at trial. It sounds like this commission has not reviewed the p-card policies and procedures from 2003 and 2013. Mr. Adams: I would be here in 2013. Mr. Eddins: Okay. So you will see in there certain provisions that provide that authority. Mr. Adams: It provides...it doesn't separate the Mayor out specifically in 2013 unless you can show that to me where it specifically addresses the Mayor. Mr. Eddins: It's in there...it was established at trial...take a look at the trial transcripts. Mr. Sing: It seems like we're clearly in an investigatory hearing if we're going out gathering documents and confronting us with them. Mr. Adams: Okay if we take a look...first of all if we take a look at our rules...so you've brought that up several times now. If we take a look at our riles...our rules talk about...within the rules are section 4...Rule 4 which talks about the infoiinal hearing, Rule 5 which talks about the investigation/investigatory hearings. There's nothing that prevents this Board from in the process of conducting an informal hearing...having questions or conducting an investigation as a part of that informal hearing. The rule does not prevent that...Okay. 30 Mr. Sing: And then not notifying us of what you're considering in the hearing against our client....fundamental fairness. Mr. Adams: To say that you weren't prepared to have these conversations is one thing...but the idea that we are somehow a year and a half after this is come to the front and after you've gone through a trial that we're being unfair in asking these questions is beyond the pale to me so I just make that comment. Mr. Robinson: And I have to add to that. After all the times you were here previously...listened to us and I know you had to sit through a few other things. What did you expect us to do today? Mr. Sing: I'm not sure and that's part of the problem. Mr. Robinson: You just thought you're just going to come...we're gonna have lunch and then go home. I mean come on. Mr. Sing: I'm not sure why you would characterize in that fashion. We're here trying to be serious with you. Mr. Robinson: Well be serious. Mr. Sing: Well I am. Mr. Robinson: Respond. I mean why are you saying oh well that's not why we're here for an investigation or for investigatory hearing. Mr. Sing: Because your rules say that if we disagree with it then it's an investigatory hearing. Mr. Adams: I'd be interested actuually...because you said that twice now and you showing me where that is and you know I am wrong...I'm happy to admit it. Mr. Sing: If I could just have a second. Ms. Kahakalau: No problem. Mr. Sing: I say that as a response to 4.7(b). Mr. Eddins: 4.8 is also applicable. Mr. Adams: That's fair. Okay. I see what you're saying. 31 Mr. Eddins: I'm sorry to address your point Mr. Robinson. You know we submitted our take as far as we understood the petition and that interpretation and why we thought this petition should be dismissed was set forth in there and it's also addressing you Mr. Adams with respect to your inquires. We set that forth because we thought that in analysis and the way the trial shook out that it warranted a dismissal at this point and we didn't know really what was gonna happen here today as far as you know what matters would be addressed and Chair...Rule 1.8 says that the respondent may or may not appear as representatives could appear. We have a petitioner who didn't appear. 1.8 suggest the respondent need not appear. We set forth our legal analysis here based on what we view as no evidence presented and un-particularized petition. In there things were deferred until now...we're not filing documents or submitting documents when the petitions been stayed til today. So therefore...we submit what we did in preparation for this hearing and as Mr. Sing's indicated repeatedly. We didn't know really what was gonna be going on here today. Now we talk about informal advisory hearings the way we read the rules is what we just quoted. We didn't see this as being that type of hearing and if was if it was a full investigatory hearing...we might be calling half a dozen County witnesses in addition to supplementing the record with the trial transcripts. Mr. Robinson: I just have a problem with the days that folks have been here and requested a continuance and well you didn't bring this up then....but why we waited til today to bring this up...I mean you know you've been here several times before. We went out of our way to delay to give the Mayor the ability to go have the hearing in court or the trial whether in court and why this only comes up today is really bothersome to me. Mr. Eddins: Well let me add this...is I don't think it's some magnanimous gesture by this body...is there constitutional implications that this commission premised this decision on. So it wasn't some sort of a gesture by this commission...there were certain due process aspects as to why the matter was deferred and it wasn't just simply deferred due to publicity. There were other reasons we've set that forth and it's my recollection at the inception of this. We had concerns about the lack of particularity with respect to the allegations in the petition and the evidence that was furnished in support of the petition. Mr. Adams: And having been there at the being if I could just make further comment on that. We actually never even got to that point because we actually deferred the petition. So we never even got to the 32 point as a part of the conversation that we actually received...we received public testimony...but we never actually got to testimony from the petitioner at that point. So...I'm just saying...so this process has been...we've been scraping along as we move along. Mr. Eddins: And I understand your point earlier Mr. Adams, but the other thing too that impacted our decision making was the August email from the petitioner when he's basically saying I'm not going to participate anymore and you know so then we don't hear anything until September 26 shortly before in the misted of a trial and then we get these late submissions by the petitioner who now jumps back into the case so to...put everything on us and I'm not suggesting that initially...I under their concerns and the points you're making I think is unfair. Mr. Adams: Thank you. If I may Madame Chair. I would comment that Counsel for the Mayor is accurate in their read of the rules particularly with 4.7, 4.8 and then Rule 5...particularly 5.2 where if we're going to hold an investigatory hearing then we would actually have a formal resolution to conduct such a hearing or investigation. This is not associated with Rule 6 which is formal hearing this has to do with having an investigatory hearing which is Rule 5 and so...I would...I guess would suggest that as a part of the conversation that we're having here outside of any motion whatsoever...that we have a couple of options here at least. One of those options is to schedule a special meeting for a period during this month. Have a resolution or make a motion for a resolution that indicates that we're going to conduct such a hearing and make sure that all parties are aware of that and request them to attend. Of course we always have the option that we have prior which is to dismiss or to continue. So I guess probably the way forward perhaps would be for me to make that motion and then for us to have conversation about the rest of that. So I would move that we...I would move that we resolve to hold an investigatory hearing regarding as a part of our informal hearing for 2015-03 on a date that would be a special meeting which according to our rules in 1-15(a) would need to be called prior to adjournment of this meeting. So we need to look at the calendar to do that. That's the motion. Ms. Kahakalau: Do I hear a second? Mr. Robinson: Madame Chair I will second that for the sake of discussion,but I'm really bothered by the fact that we don't have the petitioner nor the respondent here. If we're gonna do that, we're gonna have to petitioner and the respondent in this investigatory hearing correct? 33 Mr. Adams: That would be...in my opinion and I would be interested in hearing Counsel on this. I believe that would require a subpoena to do that. Mr. Murai: Certainly, the parties may agree to appear and if there's no agreement or if Counsel's not prepared to commit to the client appearing then the Board could issue a subpoena. Ms. Kahakalau: Okay. One of the issues here...definitely is a time concern right...the timing because once the Mayor is not in office anymore...we have a very different ball game...a very different situation and so that is really you know one of the primary issues and was an issue right from the beginning you know with the trial and all of those things...but I would say...I really don't feel comfortable making a decision at this point and time with neither the petitioner nor the respondent being here and so a special meeting and investigative hearing...investigatory hearing I think you know would be one way for us to get to the bottom of...and have our questions answered which I expected them to be answered today to be perfectly frank. Mr. Robinson: And I agree because frankly I had some questions for Mr. Hyland as well and he's not even here. Ms. Kahakalau: Alright we have our Vice-Chair Goodenow joining us so can I just update him or would you like...why don't you go ahead and... Mr. Adams: So where we are Vice-Chair is that as a part of the conversation we've been having with the Mayor's representatives. It's been brought to my attention since I was the one who was arguing it. That in fact sections in our rules...section 4.7 and 4.8 and 5 would indicate that due process according to our rules indicates that we would had a resolution indicating we were gonna have an investigatory hearing as a part of our infonnal hearing. We have not done that...their absolutely correct in that regard. Unless we decide to either continue or dismiss...I have put forward a motion indicating that we will at some point in November...date to be determined that has to be determined before the end of this meeting. Hold such a hearing with notice to both...to all parties. So that's where we are at the moment...in the middle of discussion of a motion that I made and member Robinson seconded. Mr. Goodenow: Alright. Thank you and again I'm really sorry. If it weren't for my obligations to the courthouse...I would have stayed. Thank you. 34 Ms. Kahakalau: Do you have any contribution to the discussion before I call for the questions? Mr. Goodenow: So there is a motion to continue? Mr. Adams: No. There's a motion to hold an investigatory... Mr. Goodenow: Hold an investigatory hearing. Mr. Murai: I'm sorry. Mr. Goodenow because weren't present for most of the discussions...nonnally in order to participate or vote...you'd need to apprised of what happened. If Board member Adams' summary is sufficient for you to be apprised of what happened then that's fine you can go ahead and participate and vote. Although I would invite Counsel in case they feel that member Adams may have left something out... Mr. Adams: Sure. Mr. Murai: That you think is important for Commissioner Goodenow to hear so that he can be brought up to speed then this would be your opportunity. Mr. Eddins: Let me say this. What's been discussed prior to the contemplation of an investigatory hearing is the failure to particularize the complaint as to facts and I think you brought a point earlier that you know what evidence we have is newspaper articles. We don't even understand what questions might arise because we don't have any factual underpinning for the...you know for the petition. So that's a problem as far as any hearing or investigatory hearing is held. More where there's certain other provisions with respect to answering any formal investigatory hearing complaint which goes hand in hand with our point about no understanding with particularity what the precise accusation from the petitioner who doesn't seem to want to participate anymore has raised. Mr. Goodenow: Sorry I have a question. So...if we do have an investigatory hearing though...we are still at the informal advisory hearing stage. This isn't a formal hearing, it would still be an informal advisory opinion. Ms. Kahakalau: Yes...but one of the things that we would do for this particular part is to request both the petitioner and the respondents to attend and we will ask that question today. That's my understanding and if they do not consent to being here then we have the power to issue a 35 subpoena for them to be here so that they can respond and that will be both the petitioner and the respondent because right now you know we are in a quandary having neither one of them here to specifically address what I feel are some very clear issues you know...14.1 is says exactly what it says in there and etc. etc. Mr. Goodenow: I had one more question on that though. As far as the process and having a resolution. I mean should...if we do this, should the resolution state exactly what we're investigating? Despite Mr. Hyland's... Mr. Adams: 15.2(b) says the resolution shall be supported by a majority of the members of the Board and shall define the nature and scope of the inquiry to be made. Mr. Goodenow: So we would say... Mr. Adams: Yeah. Mr. Goodenow: This is the provision of the code that we're looking at...alright. Well I mean...I still have a problem I mean we just a Board where anyone can just send anything and say hey I read this in the paper. I want this investigated...I think we're threading on dangerous grounds...but I do respect that you know this is had a lot of publicity and I mean there issues out there in the public domain that may warrant us wanting to look at that...but...I'll defer to the Board maybe since I wasn't here...I'll just sit back on that, but I will be happy to follow the will of the Board. Mr. Robinson: Madame Chair if may. I'm like Mr. Eddins in a ways. I'm concerned that we get this petition from Mr. Hyland. Then we get what seemingly is his withdrawal and not want to participate in the process anymore and then sends letters saying other things that's confusing...it's confusing and so if we had this investigatory hearing, hopefully Mr. Hyland can get some degree of clarity by that point. So hopefully if we move this forward it will help. Ms. Kahakalau: In one way I agree on the other side. If you are a regular citizen, this process can be very, very confusing and given that the time and energy that Mr. Hyland put into it and just you know things going in circles and that's not necessarily anybody's fault...but definitely having the criminal case definitely complicated things and for somebody at one point to say I give up you know because it doesn't seem to be going anywhere. I can see that happening you know I don't think that's an unreasonable statement to make after you know you come before this Board multiple times and 36 really you know it doesn't appear like anything is moving forward. I have been in that situation where I'd said forget it you know. I'm moving on...this is...so I wouldn't hold him to that one statement especially since he has continued to submit correspondence in regards to this and it is pretty clear that this is something that is very important to him and I would assume to other members of our County as well...but that's just an assumption. So that's just that part...1 do want to...I have a question for the Counsel. So basically as far as procedure is concerned so we have the motion, we have the second, we can vote for this now and then...is it then afterwards that we will a) set the date and b) the specific verbiage so that you know everybody is crystal clear as to what the requirements are and what the consequences are if the requirements of this resolution are not met. Mr. Murai: Madame Chair. Pursuant to Rule 5 of the rules of the Board. If the Board wishes to set or commission an investigation or set an investigatory hearing...it must be by formal resolution and it must contain certain things. In other words, it may...it should set forth whose gonna conduct the investigation...the Board could appoint a sub-committee, it could appoint an individual member or it could appoint a staff member to conduct the investigation. The only thing I'm not certain about is whether when it say formal resolution whether that formal resolution may be made orally. It doesn't say written so I'm gonna presume that even an oral resolution would be acceptable to the Board. So with that in mind, my only I guess guidance would be however the Board does this...we look at Rule 5 and hit on all the things that Rule 5 requires such as designating whose going to hear the...conduct the investigatory hearing and in others I could be an entire Board, a sub-committee or an individual person. Ms. Kahakalau: I still kind of have the question whether we have to formulate the entire resolution in terms of you know the verbiage of it with the current motion...if that's okay with the current motion or if we have to make another motion. So that's one question and then do we fully have to articulate it before we vote on it. Mr. Goodenow: Before you respond, could I add a little to that by saying...look I wasn't here for the discussion on whether you're going to do it or not. I don't want to jeopardize anything by voting without having reviewing the minutes right so I'll abstain from that vote, but if it does pass certainly then these other procedures and how it's worded I would be fine with voting on that. So I would hope that you we could just vote...are you gonna do it or not...if it passes will be move on to that. I would think it should be...we should 37 have the wording. It's not in writing,but we should say exactly what it is. We hereby resolve that and spell it out. Mr. Murai: I think to get to Chair's question. I think...I understand what's on the floor right now is a motion by member Adams and perhaps if he wished to I guess re-cast his motion or re-form his motion into a resolution. A resolution that the matter be set...that should probably meet the requirements of the rule. Mr. Adams: Right. I thought I did that. I thought I moved that we resolve to hold... Mr. Murai: Okay then that's fine. In that case Chair if that's what the... Ms. Kahakalau: Then we can vote on that motion at this point in time and then after that we can craft the resolution and vote on that. Mr. Murai: Well we should probably spell it out first. In other words...and maybe member Adams can clarify what exactly his resolution is. Ms. Kahakalau: Okay thank you. Mr. Adams: We still have the resolution so for the purposes of discussion. We have the petition that identifies 14-1, 14-2 and 14-4 specifically in there and that's the ones that are in there. It does talk about 14-6 which is penalty provision and so in addition to those which are non-particularized, but are a part of the Charter and are part of the petition. Personally for me, I will include as a part of this motion from the code 2-83 (a)(1) will be an issue for me and specifically I'll have questions that are associated with the purchasing card program or procedures 2013 version. Hopefully that's particular enough and then I don't know if anybody else has anything else specifically that they want to have a part of the hearing. Mr. Goodenow: Re-state again... Ms. Kahakalau: So it's 14-1, 2 & 4 of the Charter. Mr. Goodenow: Of the Charter. Mr. Adams: Right because we're asked to define the nature and scope of the inquiry to be made...right....so the scope...that's what the... Mr. Goodenow: That's what the Mayor violate Charter section...is that the wording? 38 Mr. Adams: That's the wording...that's right. Mr. Goodenow: 14-1... Mr. Adams: 14-1, 2 or 4 and then Code section 2-83 (a)(1) Ms. Kahakalau: Of the 2-13... Mr. Adams: Well and then the nature of the inquiry will for me involve questions associated with the purchasing card program procedures version in 2013. Mr. Goodenow: What about 2-83(b)? Mr. Adams: You can include 2-83(b)...it's up to you. Mr. Goodenow: I mean I'm not the petitioner...I mean a little... Mr. Adams: Okay. We've not... Mr. Murai: I don't mean to interrupt, but actually what the Board is doing is defining the scope of the... Mr. Goodenow: Based on Mr. Hyland's petition or do we...I'm not...I don't mean to be argumentative...I'm just curious for future reference. Mr. Adams: If I could just take you to our rules. Mr. Goodenow: Thank you. Mr. Adams: Rule 5... • Mr. Goodenow: Okay give me a second here. Mr. Adams: Alright. Mr. Goodenow: Alright. Mr. Adams: If you look at 5(1)(a) right...in accordance with Article 15, the Board may subpoena witnesses, administer oaths, take testimony relating to matters before the Board and require production for examination of books relative to any matter under investigation or in question before the Board. Okay...and then when you go down to 5(2)(b) the resolution that's associated with...that's mentioned in 5(2)(a) shall supported by a majority and shall define the nature and scope of the inquiry to be made. So what I'm trying to do here 39 is define the nature and the scope of the inquiry to be made as a part of the resolution that we're required to make to allow us to conduct this investigatory hearing as a part of our infonnal hearing. Mr. Goodenow: So it doesn't matter really whether the petitioner... Mr. Adams: Correct. Mr. Goodenow: Is involved or not. Mr. Adams: That's right. Mr. Robinson: Just the Board. Mr. Goodenow: It's like he brought this to our attention...now we're in investigating is the... Mr. Adams: Right. Mr. Goodenow: I don't know if Corp. Counsel...I don't have a problem with that...I'm just... Mr. Murai: What's the question? Mr. Goodenow: Well... Mr. Adams: Are we allowed to do that? Mr. Goodenow: Are we allowed to do that? Mr. Adams: Sure. Mr. Goodenow: We're not...we're not really...the form and content of the petition and who may file a petition...all that doesn't matter. We're at the point we're saying hey we want to investigate this...we're doing this on our own. Mr. Murai: I wouldn't say it doesn't matter, but the Board certainly has the authority to authorize an investigation and to define the scope of the investigation. Ms. Kahakalau: So then I would say...so we have clearly...we have clarified what it is that we would like to have investigated? Is that... Mr. Murai: I believe member Adams was in process of doing that. 40 Ms. Kahakalau: Yup, but I think he's specified the specificities of the what and we still have the who, we have the when, you know we have the request etc. etc. right so we're proceeding...I just wanted to make sure that we are all on the same page here. Okay so the next question I would say would be who will conduct the investigation. I mean there's no specific order. Mr. Adams: We in 5.3(a) the Board as a whole is one of the entity's that can conduct all or part of the investigation or hold an investigatory hearing and I would recommend that it be the Board as a whole. Ms. Kahakalau: Okay. Any further discussion on that...I'm in agreement with that. Does anybody else have a comment on that? Mr. Robinson: Nope. I'm fine with that. Ms. Kahakalau: Okay so that will be part of the resolution is that the entire Board will be conducting all or part of the investigatory hearing as applicable. Mr. Robinson: Madame Chair may I ask to is our intention of a Board to issue subpoenas for both the petitioner and the respondent to appear? Ms. Kahakalau: I would say you know given that they was a clear request to attend in our previous communications and neither of the parties honored that request and we have a time issue. If we didn't have a timeline issue, it would be still another story...but at this point we have gone out of our way and as a result that this has been dragged on and now we're at a point where if we don't make a decision then there will be no decision to be made because Mayor's term of service expires so I would be in favor of a subpoena for both Mr. Hyland and the Mayor for that reason. Mr. Robinson: Okay. Mr. Murai: Madame Chair the rules also allow the parties to agree to appear and I'm not sure whether the Counsel is able to commit on behalf of their client if they are great if not then the Board can consider a subpoena. Ms. Kahakalau: I'm sorry I was assuming since Mr. Hyland is not there and the person that's there is not an official representative that that as far as Mr. Hyland is concerned there's no option there...but I do want be willing to put the question the respondents to see whether they would let us...whether they agree that our request for the Mayor Kenoi to appear at this investigatory hearing will be granted. 41 Mr. Sing: If you propose a date and grant me a very brief recess. I can get you the answer. Ms. Kahakalau: I appreciate that. Mr. Goodenow: If I'd suggest we vote on the resolution and then there may be third-parties we want to subpoena too. We could go through...have a discussion about who we want there. We may want subpoena for example the p-card policy manual you know the Finance Department to provide that etc. Mr. Adams: Sure. The rules do not require us to put a date, a meeting date yet as a part of the resolution so we can vote on the resolution and then we can decide on the date. Ms. Kahakalau: What about the part about what parties need to be there? That's kind of why I asked my question earlier in terms of what do we need to have finalized before we make the vote. Mr. Adams: Once we have the resolution...the movement on whether to who to invite and the fact that we're conducting a hearing is what the resolution is about and the scope and nature of the inquiry has to be a part of that. Whose gonna be there, whether we need to subpoena them or whether we can have their consent that they're going to attend. Whether we want any additional folks...that's all separate actions. Mr. Murai: That would be up to the investigative body. It's separate from the act of setting the hearing. Mr. Adams: Right. Mr. Goodenow: I'm ready to vote, but if we could just re-state the resolution again for us. Mr. Adams: I move that it be resolved that this Board as a Board of the whole conduct an investigatory hearing as a part of the informal hearing process involved in Petition 2015-03. The nature and scope of the inquiry, the nature and scope of the inquiry to include Charter Sections 14-1, 14-2, and 14-4 as identified in Petition 2015-03 as well as specifically Section 2-83(a)(1) with the nature of the inquiry including questions involving the purchasing card program procedures 2013 version. 42 Mr. Goodenow: Alright again I'm kind of abstained cause I missed the thing, but I think if you're going to do that...maybe you should include (b). Mr. Adams: And 2-83(b). Mr. Goodenow: And the question being whether the Mayor violated the Code of Ethics. Mr. Adams: And specifically the question being whether the Mayor violated... Mr. Goodenow: Those provisions. Mr. Adams: Those provisions of the Code of Ethics. Ms. Kahakalau: Do we need any further clarifications as to the motion? Do have any further discussion in regards to the motion? Mr. Adams: And that motion was seconded previously and assuming that there was any amendments to that...the second agrees to those? Mr. Robinson: ....stay in place correct. Mr. Adams: Okay. Ms. Kahakalau: We have a motion and we have a second and we have no further discussion. Mr. Eddins: I'm sorry and I don't mean to interject. If I could add one point prior to you making the decision. With respect to the resolution you just proposed Mr. Adams. You had indicated that you did not believe 14-2 is applicable so in trying to narrow the scope of what may transpire shortly here. Mr. Adams: That was just my... Mr. Eddins: I know so I wanted to bring that to the attention because if we are crafting a resolution to narrow things perhaps the commission wants to discuss your point of view on 14-2. Ms. Kahakalau: Well I feel since it was part of the original petition. We will look at it and if's not applicable...it's not applicable...but I would feel more comfortable for us to have that opportunity to ask questions in regards to it at the investigatory hearing. Mr. Goodenow: I concur, but maybe we could...I mean obviously we're really looking maybe at (b) right 14-2(b) is what he quoted in the original 43 petition I believe. Nothing about business transactions or compensation or appear on behalf of private interest. Could we limit it? Would Mr. Adams be open to a friendly amendment saying... Mr. Adams: Actually the Chair....well I'd be since I made the... Mr. Goodenow: Yeah....14-2... Mr. Adams: I would defer to the Chair on how she feels about that. Mr. Goodenow: Alright. Ms. Kahakalau: Yeah I'm fine with that if there's no objection by any other Board member that we limit 14-2 to section (b). And then 14-1 & 14-4 in it's entirety. Mr. Adams: Okay. Mr. Robinson: Okay. Ms. Kahakalau: And we're all good with that? Okay. Alright having no further discussion I'll call for the question. All in favor of the motion say aye...any opposed? So the motion is carried. Motion and Vote: Mr. Adams moved that it be resolved that this Board as a Board of the whole conduct an investigatory hearing as a part of the informal hearing process involved in Petition 2015-03. The nature and scope of the inquiry will include Charter §14-1, 14-2(b) and 14-4 and Section 2-83(a)(1) & (b) of the Code of Ethics. The inquiry would also include questions involving the purchasing card program procedures 2013 version and whether the Mayor had violated those provisions. Three members voted aye. Mr. Goodenow abstained from voting. Mr. Adams: So Madame Chair I would encourage us to identify a date so that the Mayor's representatives can somehow communicate whether or not there is agreement as opposed to a requirement for a subpoena. Ms. Sweeney: Chair Kohala. Chair? Ms. Kahakalau: Excuse me that's Kohala. Is there a comment or a question? Ms. Sweeney: Yes. We have two questions raised by the person representing the petitioner. One is Mr. Hyland is not ambulatory unless he comes by ambulance. That's why he's not here today. He has blood clots 44 in both legs. Is there another method that can be used at the next meeting for him to testify? Ms. Kahakalau: Thank you for the question. We'll consult with Counsel and then we'll let know just a moment please. Mr. Robinson: You know if you could communicate to Mr. Hyland that I have a blood clot in one leg and I'm here today. Mr. Goodenow: Maybe we should take a short recess. Ms. Sweeney: This is doctor's advice sir sorry I'm just relaying the information. Mr. Robinson: And I understand I have the same advice. Ms. Kahakalau: Could you turn on your microphone please. Thank you. So you heard the question...we just wanted to know what if there are any other options. Mr. Murai: Is Mr. Hyland hospitalized? Ms. Sweeney: Negative. Mr. Murai: Does he have the ability to video conference from his home? Well first of all is he homebound? Ms. Sweeney: He is homebound. I'm not sure if he has the capabilities. It was just a question posed by the person representing him. Mr. Murai: Because we can...if he's willing to or able to work out some kind of method of communicating...we'll see if we can accommodate that. One suggestion might be if he could do it by skype or similar technology. Ms. Sweeney: Thank you that was the question on the table. Mr. Goodenow: Madame Chair. Ms. Kahakalau: Go ahead. Mr. Goodenow: I mean it seems from my earlier question do we really need the petitioner. I mean he may want to do it...be part of it...but it's not like his presence is really required based on the previous answers to my questions right? 45 Mr. Adams: No...but I think that it's fair to the Mayor's representatives or the Mayor that they...if they have questions for the petitioner that the petitioner be available for them to be able to ask at least through us questions as well. The petitioner makes testimony then you know the idea that...well anyways. Mr. Goodenow: Well I mean then I mean if he's not available... Mr. Adams: It's not actually gonna stop us from having the hearing that's true. Mr. Murai: My understanding if I may is that...well from what I gather...it's more of a matter of courtesy or due process to at least offer Mr. Hyland the opportunity to participate. If he chooses not too then the Board will you know proceed however it wishes...but... Ms. Kahakalau: I agree that our primary questions are not to Mr. Hyland, but to the Mayor and so that's one issue. I just want to ask what about if he officially appoints a representative....would that be a possibility. Mr. Murai: Sure. Ms. Kahakalau: So Kohala did you folks hear? Ms. Sweeney: We heard that. Ms. Kahakalau: We would very much like Mr. Hyland to be there and if there's a way to either Skype or Zum or some other electronic meeting that would be fabulous. If he wants to officially appoint a representative and I would assume that would mean a letter stating that he assuming the he's appointing so and so and then sending it to us. Mr. Murai: That's correct. Ms. Kahakalau: Then that will also be an option. Mr. Robinson: You know Madame Chair. I just went to Lanric Hyland's Facebook webpage and he's got a picture of himself sitting in front of his computer and it's got a camera in it. So he should be able to appear. Ms. Kahakalau: Alright so and you understand....Yeah okay. Thank you. Ms. Sweeney: Okay Chair one other thing. Mr. Hyland according to the representative really wants to participate and he will do whatever the Board of Ethics askes. 46 Ms. Kahakalau: Well we appreciate that very much. It's always a...we're here to listen to people and the only way we can do that is if they're actually here so thank you very much for that. Okay. I think we are ready...no? Mr. Adams: Madame Chair I would invite us to...I would ask that we identify a date for our meeting. Ms. Kahakalau: I thought earlier you said that it wasn't necessary to do that prior to the question. Mr. Adams: We already had the motion...voted on it. Ms. Kahakalau: Okay sorry. Mr. Goodenow: So our dates....how long will take the staff to get the notice out...how much time do they need for that. Ms. Kahakalau: So basically what's the earliest we could have it is the question right. Mr. Goodenow: And if we're gonna subpoena people you have to give it time for service of subpoenas and you know you have to give them time to prepare. Ms. Kahakalau: Well I think with the subpoena part. I would like to give the Mayor's representative an opportunity to ask the Mayor if he can be at whatever meeting date we set and I would trust the response and that the Mayor will actually be there if he says he's going to be there and the only way or the only reason we would issue a subpoena would be if he doesn't consent to being there. Mr. Adams: So as we take a look at Rule 1-15...we have...special meeting can be called by the Chair with the time, date, or place of that meeting prior to adjournment of a regular meeting like this one and that notices of meetings together with an agenda listing all of the items to be considered shall be filed with the Office of the County Clerk at least six calendar days prior to the meeting. So that's...we can make it no earlier than a week from now. Mr. Goodenow: Yes. Mr. Murai: Members...Emily's been checking the availability of the chambers here and chambers here are available on November 17, 18, 21, 22 and 23. 47 Mr. Robinson: Was it the 18th? Mr. Adams: 17th, 18th, 21, 22 and 23. Mr. Robinson: I'm good any of those days. Mr. Murai: For what it's worth Madame Chair...not that I'm the most important person that needs to be here, but I'm available on the 17t1', 21St and 22nd. I'm not available on the 18th or the 23rd. Ms. Kahakalau: I have a conflict also on the 17th and the 18th Mr. Goodenow: Me too. Ms. Kahakalau: But I am available 21, 22 and 23. Mr. Adams: Okay so 21 or 22 seems to be the dates that we can do this right. Ms. Kahakalau: Anybody has any.... Mr. Robinson: Nope. No preference. Mr. Goodenow: I would prefer the 21st. I've got some court on the 22nd Ms. Kahakalau: Could we...just for accommodation sake I guess maybe give the Mayor possibly two dates... Mr. Murai: Let's check on the 21st since it seems to work for the entire Board and if the Counsel comes back and says the 21st is no good, but 22nd is okay then maybe we can.... Mr. Goodenow: I'm free after noon...any time in the afternoon on the 22nd Ms. Kahakalau: Okay...and then 23rd? Mr. Goodenow: Any time starting at 9:30. Mr. Adams: But our Counsel's not available on the 23rd Ms. Kahalcalau: Oh okay. Mr. Murai: I'm out of town. Mr. Goodenow: The 21st I'm available at 9:30. 48 Ms. Kahakalau: Okay so I guess we would like for you to do is to please ask the Mayor if he can be there on the 21st and give us a response to that. Mr. Murai: Take a recess Madame Chair. Ms. Kahakalau: Actually why don't we do lunch. It's 12:30 so we're gonna break for lunch if that's okay with everybody and I'm sorry to everybody else whose sitting in here waiting...really apologize...but the length of this discussion...but I think it's a very important one and so we're going recess for lunch and in the interim if you could please check and get back to us we'd appreciate it. Mr. Sing: To confirm the 21st in the morning? Ms. Kahakalau: Yes. Mr. Sing: Okay. Mr. Murai: 10 a.m. our usual start time? Ms. Kahakalau: Yes usual start time 10 a.m. Mr. Sing: Thank you. Ms. Kahakalau: Okay so we're recessing for lunch and we'll be back let's say at 1 p.m. Is that okay with everybody? So we're recessing for lunch until 1 p.m. Thank you very much. Mr. Robinson: And then we'll start with the next item. Ms. Kahakalau: And then we'll be on the next item on the agenda. Thank you. 12:33 p.m. The Board took a lunch recess. 1:02 p.m. The Board returned from lunch recess. Ms. Kahakalau: We are calling this meeting back to order and I guess...Yes. Mr. Murai: I understand we'll be recalling Petition No. 2015-03. • Ms. Kahakalau: Correct. Mr. Murai: And maybe we can invite counsel to come up to the table. 49 Ms. Kahakalau: . Yes. So prior to our lunch...we had asked if you could please check with Mayor Kenoi if November 21 was a good day to come and appear at our investigatory hearing. Mr. Sing: Thank you and I'm sorry lunch was so short. I do a specific answer to your question. I would first ask if the Board entertain an offer of stipulated settlement here and I would have a specific proposal. Ms. Kahakalau: Do we need a motion for something like that? Mr. Murai: No...what I just heard was that Counsel is offering to propose a stipulated informal advisory opinion. Is that correct? Mr. Sing: That's correct. Mr. Murai: And so Madame Chair at this point what's on...well the matter is still properly before the Board 15-03. We are at a point of finalizing the details of the investigation and investigatory hearing. However, nothing prevents the Board and the respondent from...well nothing prevents the respondent from offering a stipulated informal advisory opinion and the Board could then accept/reject/counter-propose whatever the Board wishes to do. Ms. Kahakalau: And that's even though we have already made a motion and voted on having an investigatory hearing. Would that in anyway negate that motion? Mr. Murai: Well if the Board...if the offer...if the stipulated informal advisory opinion is satisfactory to the Board and the Board adopts the language proposed then the Board may set aside its resolution to launch an investigatory hearing. Ms. Kahakalau: Okay I...you know just timeline wise "a' before "b"kind of a thing. I just want to make sure that all the Board members are okay with us hearing the stipulated informal advisory opinion. Okay. Go ahead sir. Mr. Sing: Thank you. We would propose that the respondent would agree and stipulate that the County of Hawai`i purchasing card procedures were violated and that it won't happen again and we'd be open to any other language. Mr. Robinson: When you say it won't happen again you mean the Mayor would not have a p-card. 50 Mr. Sing: Yes. Won't have a p-card and he doesn't now. Mr. Goodenow: I have a question or maybe a comment. Ms. Kahakalau: Do we need to do any kind of motion or is it okay to have a discussion about this at this point in time? Mr. Murai: Well we don't need a motion yet. Once...if there is an agreement on the language then at the appropriate time a Board member may make a motion to adopt the agreement. Ms. Kahakalau: Thank you. Mr. Murai: If I may...I having heard the offer. I would add to that...I would suggest that the Board also consider adding language that says that Mayor would be provided with a copy of the current p-card policy and that he agrees to abide by that policy. Regardless of whether he has a p-card presently or not. Mr. Goodenow: If I may. I mean...I appreciate the offer...I mean it seems like a simply way to resolve this matter, but I have a couple of issues. One is it's really not our job to say whether the policy was violated or not. It is our job to say whether there was violation of the ethics code. After the trial I mean I'm not...I mean was the policy violated even. I don't know that, but I would suggest maybe something along the line of and I'm just thinking of the top of my head so it's going to be inelegant in trying to fix it as we go...but I mean...could we say that it is a...well...given the lack of clarity in our laws regarding p-card procedures...right...or...we come to know conclusion regarding whether...you know regarding wrongdoing...but as this is an informal advisory opinion. We are stating that no County employee should use the p-card for personal use. And that we recommend all new employees be given a copy of this you know clarification and we encourage the County . Council to make appropriate changes to our code and a charter to clarify that. Mr. Murai: May I? Mr. Goodenow: Please do...I'm just talking off the top of my head. Mr. Murai: The advisory opinion is for the benefit of the County employee. Mr. Goodenow: And going forward therefore...you should not use the p-card for any personal use or if there's inadvertent use...you reimburse the County within thirty days of... 51 Mr. Murai: I'm not sure whether the Board of Ethics can prohibit acts. In other words...it almost becomes disciplinary in nature. Mr. Goodenow: Isn't that what...I mean if he violates it and uses the card again then we're going to the formal hearing. Isn't that the process? Mr. Murai: Yes...but I'm also speaking to things like you know new employees must be informed...Council is... Mr. Goodenow: I see. I see. We encourage the Finance Department to... Mr. Murai: That I would suggest could be done in a separate letter authorized by the Board. Ms. Kahakalau: More of the recommendation kind of... Mr. Murai: Yeah. Mr. Goodenow: You're stipulating so I mean...but to me that's not our job to say whether it was violated or not. Was there an ethical violation? Mr. Murai: If I may. What our rules require is that in order to take action, the Board must conclude that it was probable or that there's probable cause to believe that a section of the Code of Ethics was violated. Mr. Goodenow: Okay. Mr. Murai: So having heard the proffer....certainly is up to the Board to see which section of the Code of Ethics would it fall under. Mr. Goodenow: Well I...I don't know...I have maybe some issue with that, but I mean...that's just me...I guess I'll wait and see what the others say...but...I mean I think we need to send a statement out that hey using your p-card for personal use violates the Code of Ethics...but because of all the ambiguity and again I don't have anything before me...I'm just going what I read in the paper and see on the television. The ambiguity...the authority of the Mayor read in conjunction with the other components of the code. It's not clear I mean I don't know...I mean...I'll leave it at that...but I'm willing...I mean it's coming from the Mayor's attorneys so I'd be interested in others input...but I'd...a little problematic with that. Ms. Kahakalau: Thank you. 52 Mr. Adams: I would just ask...how do you feel about us adding the...that this is a violation in 2-83(a)(1)? Mr. Sing: I'd have to run that specific language by our client. Mr. Goodenow: Which is all public property and equipment should be treated as a public trust and are not to be used in a proprietary manner or for personal purposes without proper consent....but again I mean he did have proper consent perhaps I mean that was the whole point of the trial right. Mr. Adams: But we're dealing with a stipulation settlement here. So we have this stipulation and I'm trying to tie it to an element associated as you mentioned...an element of the code...the Ethics Code that we have jurisdiction to deal with.. I'm not aware of any other section and frankly that I can tie it to. Mr. Murai: Mr. Adams perhaps (b)5. Mr. Goodenow: So that would be no officer or employee shall use or attempt to use the officer's or employee's official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following (5) using County property ore personnel for other than a public activity or purpose. I'd be more comfortable with that. Ms. Kahakalau: I would also.-.. Mr. Adams: Then I would stand down...but if that was the acceptable to the respondent I would be happy with that. Mr. Robinson: How would be find out if that's acceptable to the respondent. You would have to... Mr. Sing: Give me ten minutes. Mr. Robinson: Yeah we give you another phone call moment. Mr. Sing: Maybe take another matter and I'll step outside. Mr. Robinson: Okay. Ms. Kahakalau: I feel you know since in the original petition...14-1 was also cited and you know saying that somebody violated something you know to me that sort of but not sort of but that to me demonstrates that 53 there was an issue in terms of demonstrating the highest standard of ethical conduct. Mr. Murai: Madame Chair if I may. My interpretation of 14-1 is that it is a sort of a pre-amble or statement of purpose and it doesn't really have any measurable standards upon which you can judge a violation. The way I would read it is that if you violate any of the specified prohibitions in 14-2 onward as well as the Hawai`i County Ordinances on Board of Ethics then that would be the appropriate place to...in other words I don't believe that you find a violation of 14-1 because it's more of a statement of purpose rather than a specific provision. Ms. Kahakalau: I do appreciate your interpretation but to me you know a leader has certain responsibilities and being a leader you have...if this was any other County employee I would say I'm good with that but being that Mayor Kenoi is in the leadership position. As a leader you have a different type of standard and you are accountable to a higher standard and in fact the highest standard of ethical conduct. So that's just my personal opinion. Mr. Murai: And of course again what was being contemplated is a settlement. In other words an agreement and of course if the respondent is okay with that that's fine but I would also caution that we should not treat someone differently just because of their position. Mr. Robinson: Madame Chair if I may I would like to...I don't know if you need a motion but...give Mr. Sing and Mr. Eddins time to consult with their client and come back with the stipulation that they have subject to the 2-83(b)(5)... Mr. Adams: If I may it's (b)(4) under the new ordinance. Mr. Robinson: (b)(4) because they changed the ordinance. Mr. Goodenow: Oh really. Ms. Kahakalau: 2-83(b)(4) Mr. Adams: Formally 5. As a matter of fact let me just read what it says. Mr. Goodenow: Thank you. Mr. Adams: Where they've added...there's an additional words but it doesn't change what (5) used to say just add some specificity to it. Okay great. 54 Mr. Goodenow: I don't know if the Mayor...I mean this is what Ku suggested I mean maybe the Mayor himself would like to preference you that he feels as Mayor he wants to the highest standard of ethical conduct or maybe there could be some prefatory language on his part if he wants to I don't know. Just a thought. Mr. Robinson: Okay then we can go to the next matter. Ms. Kahakalau: Okay. Why don't you folks find out and then come back. We're going to continue with our agenda and then squeeze you in when we can. Thank you. Mr. Adams: So if I may Madame Chair I would move that we continue 2015-03 to later in the agenda subject to the Call of the Chair. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye...any opposed? Motion is carried and we're moving on. Motion and Vote: Mr. Adams moved to continue Petition No. 2015-03 until the Call of the Chair. Mr. Robinson seconded the motion. All members voted aye. ** Continued ** Ms. Kahakalau: We do have our other two respondents back in the room so if it's okay with the Board I would like to call...revisit Petition No. 2015-03 and ask the representatives of our respondent to please come forward. Thank you. And share with us your answer. Mr. Sing: Thank you. We would agree to the language contained in b5 that the respondent would agree that the Board finds that is probable that b5 was violated. Mr. Robinson: That there was an ethical violation. Mr. Adams: b4. Mr. Sing: b4...sorry. The new section. Mr. Goodenow: Right b4 that it was probable that a violation occurred. Mr. Sing: Yes. Mr. Robinson: I'd make a motion to accept the prospered settlement. 55 Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? Mr. Adams: I guess I should...just briefly...well actually I'm just gonna kind of say what Vice-Chair said. There is a procedure in place and County employees need to follow it. Ms. Kahakalau: I guess I can...would it be okay to make like an informal recommendation afterwards? Or should I make an informal... Mr. Murai: You should probably make sure that whatever is contained in the advisory opinion is all on the table now. Mr. Robinson: Right. Mr. Murai: If it's something that does not involve the actually advisory opinion then certainly like for example...Board member Goodenow was talking about you know recommending that all employees be trained and receive p-card training...that's something that would be separate from the advisory opinion itself. Mr. Goodenow: We could still do that. Ms. Kahakalau: Alright. Mr. Murai: Right but it would be a separate action of the Board...unrelated to... Mr. Adams: Correct. Mr. Goodenow: We could do that the next meeting if we.... Mr. Murai: You could do it anytime. Mr. Goodenow: Okay. Can I ask the attorneys a question? So would your preference be it be very simple one statement stipulated opinion or order...I don't know what we'd call it. Mr. Murai: We'd just call it an informal advisory opinion. Mr. Goodenow: Stipulated or bi-stipulation... Ms. Kahakalau: I don't think we need that. It would be basically the informal advisory opinion is that the respondent agreed to the violations and 56 we are recommending that there will be no further use of the p- card. Mr. Goodenow: Period. Mr. Murai: Violation of the policy. Mr. Goodenow: Well...no I thought it was the respondent will...the respondent agrees that there is probable cause to believe that Hawai`i County Code Section 2-83(b)(4) has been violated and agrees...the respondent agrees not to use the p-card for personal use in future. Mr. Robinson: Why would you say probable cause? Mr. Goodenow: Well that's our standard I think. Mr. Robinson: Respondent stipulates that there was a violation. Mr. Adams: Yeah because probable cause is the informal hearing standard. Mr. Goodenow: Standard. Mr. Adams: You go passed that when you go into formal hearing. Mr. Robinson: Okay. Ms. Kahakalau: Alright any further discussion...then if not I'll call for the question...all in favor say aye...any opposed? So that motion is carried. Motion and Vote: Mr. Robinson moved to accept the proposed settlement. Mr. Goodenow seconded the motion. All members voted aye. Ms. Kahakalau: I do want to just spend a little bit on the idea of education. When you don't know there's that part you know I just didn't know and so I think it's really, really important that a) all current employees are made aware of the use of the card you know whichever way that that needs to be done by the County and how we are gonna...if we can formulate that or whatever to do and then also new employees are gonna be briefed but I don't know how to do that. Mr. Adams: So Madame Chair I would move that we as a Board not authorize...I guess kind of authorize the Chair to work with staff to develop a letter to go to the Department of Finance....the head of the Finance Department with the concerns that you have regarding education around the p-card program. 57 the Finance Department with the concerns that you have regarding education around the p-card program. Mr. Goodenow: To be approved maybe by the next meeting. Mr. Adams: I'm more than willing to give her to just do it now. Mr. Goodenow: Alright then. I second. Mr. Murai: And that's fine. Just in the course of developing that recommendation for example when you say all new employees...that may not be knowing how County works...it would be highly unusual for a brand new employee to even get a p- card. Ms. Kahakalau: Well it would be whoever gets...when their issued a p-card yeah. I'm sorry should have said that. Mr. Murai: I'll prepare the infomial advisory opinion. Ms. Kahakalau: I appreciate that. Was that a formal motion and a second? Mr. Goodenow: Do we have to move to reconsider the vote on... Mr. Adams: We're not done yet. We're still in the middle of a motion. Mr. Robinson: We're still on the original motion. Ms. Kahakalau: So the motion about the recommendation is on the floor. Do we have a discussion? All in favor say aye...any opposed? Staff and I will be working together on the recommendation. Thank you. Motion and Vote: Mr. Adams moved that the Board authorizes the Chair to develop a letter to the Finance Department regarding concerns around the education of the p-card program. All members voted aye. Mr. Adams: I move reconsideration of our previous motion regarding resolution about our investigatory hearing. Mr. Goodenow: Second. Ms. Kahakalau: Do we have any further discussion in regards to that? Mr. Adams: Whatever the correct language is to stop us from doing that. 58 Mr. Murai: Well...Board will be reconsidering its order and I will be...right...the Board if you move to approve the motion to reconsider...then the matter would be dispensed. It's made moot because of the stipulated informal advisory opinion. Ms. Kahakalau: I call for the question...all in favor say aye... Mr. Adams: Aye. Mr. Robinson: Aye. Ms. Kahakalau: Aye. So was that an aye Ken? Mr. Goodenow: I think I abstained. Ms. Kahakalau: Alright so we have three aye's which means the motion is carried and since there's nobody else we wouldn't have any no's or abstentions. One abstention okay. So that concludes this issue. Thank you for coming. Motion and Vote: Mr. Adams moved for reconsideration of previous motion regarding resolution investigatory hearing. Mr. Goodenow seconded the motion. Chair Kahakalau and members Adams and Robinson voted aye. Mr. Goodenow abstained from vote. b. Petition No. 2015-10: Continued review of petition alleging that a County Officer or employee is in violation of Sections 2-83 (Fair Treatment), 2-84 (Conflict of Interest), 2-91.3 (Lobbyist Registration), and 2-91.4 (Gifts) of the Code of Ethics because he was influenced and accepted gifts by an unregistered lobbyist organization. (Continued) Ms. Kahakalau: Do we have the.... Mr. Adams: We do...the petitioner. • Ms. Kahakalau: We have the petitioner. If the petitioner could please come up and restate your or add anything additional to your petition please. Aloha. Mr. Revell: Hi Mariner Revell...I don't have anything to add. Ms. Kahakalau: Thank you very much. Do we have any questions for Mr. Revell? Mr. Goodenow: Just a point of information right. We're at the point was because we were tied...this is just to resolve the issue as to whether the 59 matter is dead or you know because it was or has to be continued right based on the two-two vote. Mr. Adams: Yes that's correct. Mr. Goodenow: That's all we're here for...we're not really discussing the merits...we already voted...it's just and maybe we should ask Corp. Counsel for their opinion as to where we're at on that. Mr. Yoshimoto: Right so thank you Board member Vice-Chair Goodenow. So that's correct. The Board already took...received it's evidence and voted on a motion to dismiss so in the meantime I did research as far as looking at procedures and I had stated before because the Board voted and tied on a motion to dismiss...that motion fails and so the matter is not dismissed...but conversely if the Board were to have a motion to sustain the petition and that would be another mechanism to resolve this cause our Board rules don't provide for what happens during a tie vote on the petition so if it's a motion to sustain the petition and it doesn't have the requisite three votes for the affirmative then the matter would effectively dismissed. Mr. Adams: Got it. Mr. Goodenow: This point I move that we as the maker of the motion...can I vote against my own motion? Mr. Adams: Yeah let me do that. Mr. Goodenow: Maybe I shouldn't. Mr. Adams: So I would move that we...what am I gonna do here. Ms. Kahakalau: Before you do just to be perfectly transparent again I was on the Burial Council with Mr. Kanuha a very long time ago for maybe for a months for the most. Mr. Robinson: I'm waiting for the motion to second it. Mr. Adams: Yes thank you. I appreciate that greatly. I need to go back to the minutes so that I remember a little bit more carefully...you getting those? I don't have them. Ms. Kahakalau: For that particular motion. Mr. Adams: Okay I do...I'm back remembering why we had this. So my motion would be that we agree to move forward with Petition 60 Ms. Kahakalau: Do we have a second? Mr. Robinson: Second. Ms. Kahakalau: Any discussion? Mr. Adams: So the discussion is...just briefly...I again the issue is what is official travel...what's gift travel...we have no...currently we have nothing in the County that allows us to establish that travel for awards can be reimbursed or provided without it implicating the gift provision of 2.91-4. 2.91-4 as I can see in anything that we have...I'm not happy about that...but that's the situation as I see it and so I would like to have a little bit more conversation about that. That's the reason for having the informal hearing about the petition and then we deadlock two to two on that previously. Ms. Kahakalau: I will stand by my decision. I feel that it was explained to me and I feel very comfortable with my decision. Mr. Adams: I would call for the question Madame Chair. Ms. Kahakalau: If there's no further discussion then I'll call for the question and just to clarify. The question is to continue... Mr. Adams: It's actually to move the petition into an informal hearing. Ms. Kahakalau: So all in favor say aye. Mr. Adams: Aye. Mr. Robinson: Aye. Ms. Kahakalau: Any opposed? No. Mr. Goodenow: No. Motion failed and by rule petition was dismissed. Ms. Kahakalau: Motion fails and therefore the matter is resolved. Mr. Yoshimoto: Is resolved. Yes. Ms. Kahakalau: Resolved. Mr. Yoshimoto: Dismissed. 61 Mr. Yoshimoto: Dismissed. Motion and Vote: Mr. Adams motioned to move Petition 2015-10 into an informal hearing regarding the traveling gift issues associated with 2.91-4. Members Adams and Robinson voted aye. Chair Kahakalau and Vice-Chair Goodenow voted no. Mr. Goodenow: Alright. Thank you. Mr. Revell: I have a question. Real quick. Ms. Kahakalau: Go ahead. Mr. Revell: Can you buy me and Drew lunch because we've been here all day and I talked to Drew about this. Maybe you can put it on somebody else's card other than the p-card. Or charge it to maybe a P.O or something because he drove all the way from Kona and I talked to him and I said...dude don't drive from Kona...this is ridiculous at this point. We've been here so many times. He gets what I was here for and I talked to him about this whole thing. I'm more upset with the lobbyist then I am with him in this matter which that's another case...but I'm trying to get some lunch out of here cause you know we've been waiting a long time here and he's drove a long time. He's gotta drive home still so...did you guys. have a budget for that? Mr. Goodenow: No. '. • - Mr. Revell: I'm just kidding. You guys are okay. Ms. Kahakalau: Thank you very much. **Moved back to Petition No. 2015-03 ** c. Petition No. 2016-13: 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 Hawai`i projects because his wife is employed as a Contracts Tech in the Department of Public Works. (Continued) Mr. Robinson: You poor girl you had to sit through all of this. Ms. Kahakalau: Yes. Our apology for it being dragging out so long. We just asking if you could introduce yourself and any additional thoughts on the petition that we have in front of us. 62 Ms. Oshiro: My name is Iris Oshiro and I'm a contracts technician in the Department of Public Works. I guess I'm here to seek an opinion on any conflict of interest between myself working there and husband whose an electrical contractor and him bidding as a general. Mr. Adams: Thank you. If I may Madame Chair. Ms. Kahakalau: Yes. Mr. Adams: So just...I really appreciate you coming in...the way that the language of the law is written we actually have to get the information from you as opposed to your husband. Are you connected...I see your 50 percent shareholder... Ms. Oshiro: No...my husband is. Mr. Adams: I'm sorry he's 50 percent shareholder. Do you have anything to do with DWE incorporated? Ms. Oshiro: No. Mr. Adams: Other than being.... Ms. Oshiro: Other than being the spouse. Mr. Adams: Spouse of and he's the spouse you and he's shareholder of this business and there applying on these bids. In your responsibilities as contract tech at public works office...do you have responsibilities associated with these competitive sealed bids? Ms. Oshiro: Yes. I do. My duties are that I review, draft, edit and process construction contracts as well as other contracts. I assist from the bidding all the way through the duration of the contract until it closes. Mr. Adams: So from the time it is being designed to the time it opens to the time bids have been received to the.... Ms. Oshiro: To the time yeah. From the time it's posted requesting bids to bid openings to awarding I assist in the...more of the just the paperwork with the procedural. I make sure it's accordance with the State laws and rules and procurement laws. 63 Mr. Adams: Do you have anything to do with any of the bidders? I guess that really the question for me is what connection do you have with any of the folks that are doing the bidding? Ms. Oshiro: Well because it's sealed bids, there's not really much information that I will have that would give an advantage. The opening are open to the public. Mr. Adams: Right. The bid openings themselves, but you don't have...of course it's sealed bids so if I'm asking do you have any connections....so I'm actually asking...you have these bids come in....there contractors that are providing those bids. Do you have any way of knowing who those contractors are? Ms. Oshiro: That turn in the bids. Yes, but it is public information. Mr. Adams: Because they had provided that, but you don't know what the bids themselves are. Ms. Oshiro: No. Bids are sealed. Mr. Adams: And then the decisions on the bids themselves are made by.... Ms. Oshiro: Made by our director...well the current...whoever the current director of Public Works is. Mr. Adams: Warren or Brandon. Ms. Oshiro: Yes. It's sealed bids so it's based on the low bidder...the low responsible responsive bidder and that decision is made by the director who was given authority by Finance to make decisions on construction contracts. Mr. Adams: Right procurement out of purchasing. Okay. Ms. Oshiro: That's why it doesn't go thru purchasing. Mr. Adams: Say that again. Ms. Oshiro: Well there's some goods and services contracts that bid thru purchasing, but are the construction ones are bid directly thru Public Works. Mr. Adams: Public Works and they've been given authority by Department of Finance. 64 Ms. Oshiro: Yes. Mr. Adams: Okay I get it. And so you are there at the openings and...but the openings.... Ms. Oshiro: Anybody can come to the bid opening...it's...the law is that it's open to the public. Mr. Adams: Right. And what do you do with those? Ms. Oshiro: So once it's received...it's also the law that it is available for public inspection...the bids at that time. Mr. Adams: Right...Right. Ms. Oshiro: And then the project engineer will review and make his recommendation to the director who to award it to based on responsiveness and responsibility and the low bid and then Warren will approve that and then we will issue an award. Mr. Adams: So allow me the opportunity to go overboard. So my concern is not necessarily based in fact, but here you are working in contracts and you have these bids come in and one of the bids is from your husband. Everybody knows everybody whose bidding because it's...they there for the opening. And people that are not part of the process and don't know the process may think shoots she can't be in there working on the bids....her husband's one of the bidders. What...how can we alleviate that problem? That perception? Ms. Oshiro: Yeah there is that perception so I voluntarily step away from any projects that may...that he may be bidding on and because he's an electrical contractor. There isn't much...normally it's the guys...the big guys with the "A" license and the "B" license. The smaller more specific plumbing, electrical guys we don't normally have contracts....I mean we do once in a while. So when I do see..... Mr. Adams: He's normally a sub on somebody else's... Ms. Oshiro: There's some contracts were you specifically need just a"C-13" license which he has and so when I see those which I did recently. I told my supervisor that I would wish to decline to be part of the...you know the prepping Mr. Adams: How's your supervisor.... 65 Ms. Oshiro: She's fine with it. Just so that my name is not there. Mr. Adams: So I would...I know there's other questions. I think I will if I'm the one that makes the motion...I will probably make the motion that takes your volunteering activity and actually makes it part of our advisory opinion so that you...now you can tell look I can't do it so that allows us to create that firewall so there's not an implication or perception that there's anything going on even though there's not because of the process won't allow it, but the fact that you're there can create that perception. Mr. Robinson: Then I would make a motion to that effect. Mr. Adams: I would second it. Mr. Robinson: Okay. Ms. Kahakalau: And I certainly don't have anything to add. I think that's the best way to move forward at the situation is what it is right and it's not like you shouldn't bid or resign or transfer or whatever in the fact that this is happening to be as transparent as possible...you've already done that, but we're giving you now that extra validation that that's the right way to do it. Mr. Adams: Good word. Mr. Robinson: Validation. I like that. Mr. Adams: If I might ask Counsel for the preparation of this order or this opinion we're clear on what we're talking about here? Mr. Yoshimoto: Right I understand your saying. Mr. Adams: Great. Thanks. Ms. Kahakalau: Alright if there's no further questions....further discussions I call for the question all in favor say aye...any opposed? So the motion is carried. Thank you so much coming. Mr. Adams: Thanks so much for coming in and waiting so long. We do appreciate it. Ms. Oshiro: It was very enlightening. I never say the process before. Ms. Kahakalau: It's a different fall guy every day and every time. 66 Mr. Robinson: Can you sign an affidavit? Ms. Oshiro: Thank you very much. Motion and Vote: Mr. Robinson moved that there is no conflict due to Ms. Oshiro's volunteering activity from participating in certain contract bids that her husband bids for. Mr. Adams seconded the motion. All members voted aye. Ms. Kahakalau: We're moving.... Mr. Yoshimoto: Madame Chair, So I have to leave like in about 5 minutes and so looks like the rest of the agenda is just reviewing the past orders. I think you can do those without me as long as you're okay with doing that. Executive session I think you need me here, but I think we can do that really quick if we were to it... Mr. Adams: Now. Mr. Yoshimoto: Now. Ms. Kahakalau: So do I hear a motion that we're gonna move the executive session up. Mr. Adams: Madame I would move that we consider the rest of the unfinished business after executive session and that we move into executive session for the purposes of evaluation, dismissal for anything that may where we considered evaluations, dismissal, or disciplining of an officer or employee of the County of Hawai`i, where consideration of matters affecting privacy will be involved or consult with our attorney on questions and issues pertaining to our power, duties, privileges, immunities, and liabilities and looking at a variety of confidential financial disclosure forms and any other issues that may come before us. Ms. Kahakalau: Do I hear.... Mr: Robinson: Second. Ms. Kahakalau: Okay. Any discussion? All in favor say aye. All members voted aye. So moved. Motion and Vote: Mr. Adams motioned to move unfinished business to after executive session. Mr. Robinson seconded the motion. All members voted aye. 1:40 p.m. The Board moved into executive session. 67 1:44 p.m. The Board returned into regular session. d. Petition No. 2016-12: Review draft informal advisory opinion regarding a petition from a County officer or employee, to determine compliance with Section 2-83 (c)(1) of the Hawaii County Code because her husband is an independent contractor who would like to submit an invitation for bid for Parks & Recreations Project No. 3453. Mr. Adams: Madame Chair I would move acceptance of Petition. Mr. Robinson: Madame Chair I will second that and just a question before we vote. Would it be possible to do all one, two, three, four and five of these at one time? Or do we have to do them one by one? Ms. Kahakalau: We need legal adviceon that unfortunatelyso let's just be safe. So if there's no further discussion I call for the question all in favor say aye...any opposed? No. Motion is carried. Motion and Vote: Mr. Adams moved for acceptance of petition. Mr. Robinson seconded the motion. All members voted aye. e. Petition No. 2016-15: Review draft informal advisory opinion regarding petition from a County officer or employee, to determine whether there would be any conflict of interest with him bidding as a general contractor for a project with the Dept. of Environmental Management, Solid Waste Division. Mr. Robinson: Motion to approve. Mr. Adams: Second. Ms. Kahakalau: Any further discussion? All in favor say aye...any opposed? Motion is carried. Motion and Vote: Mr. Robinson moved to approve. Mr. Adams seconded the motion. All members voted aye. f. Petition No. 2016-16:Review draft order dismissing petition alleging that County officers or employees are in violation of Section 2-83(a)(3) and 2- 83(b) (Fair treatment) of the Hawaii County Code due to the unfair treatment by the building department. Mr. Robinson: Motion to approve. 68 Mr. Adams: Second. Ms. Kahakalau: Any discussion? All in favor say aye...any opposed? Motion is carried. Motion and Vote: Mr. Robinson moved to approve. Mr. Adams seconded the motion. All members voted aye. g. Petition No. 2016-17:Review draft order dismissing petition alleging that County officers or employees are in violation of Section 2-83(a)(3) and 2- 83(b) (Fair treatment) of the Ilawai`i County Code due to the unfair treatment by the building department. Mr. Adams: Motion to approve. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye...opposed none. Motion and Vote: Mr. Adams moved to approve. Mr. Robinson seconded the motion. All members voted aye. h. Petition No. 2016-18:Review draft informal advisory opinion regarding petition from former County employees, to determine their ability to provide professional services to the County of IHawai`i in regards to Section 2- 91.2(b)(c) Post-Employment of the flawai`i County Code. Mr. Robinson: Motion to approve. Mr. Adams: Second. Ms. Kahakalau: Any discussion? Mr. Robinson: Yes. I'm assuming we'll be getting a lot more like this soon. Some County attorneys been given notice already. That's my discussion. Ms. Kahakalau: Thank you. Okay...any further discussion? Mr. Adams: I would agree. Ms. Kahakalau: Then I'll call for the question...all in favor say aye...any opposed? Motion is carried. Motion and Vote: Mr. Robinson moved to approve. Mr. Adams seconded the motion. All members voted aye. 69 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of October 11, 2016. Mr. Adams: Madame Chair I would move approval of the executive session minutes of October 11, 2016. Ms. Kahakalau: Is that a fon-nal motion. Mr. Adams: I would move approval of the executive session minutes of October 11, 2016. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye...motion is carried. Motion and Vote: Mr. Adams moved to approve the executive session minutes of October 11, 2016. Mr. Robinson seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Ms. Kahakalau: And do we need to say anything in regards to... Mr. Adams: We do I would review acceptance of the confidential financial disclosure forms. Mr. Robinson: And I would second that. Mr. Adams: And you have to say what they are I guess. One thru four or whatever. Ms. Kahakalau: We have four financial disclosure forms. Mr. Adams: Gabriel Menendez, Owen Okamoto, Robert Gomes and Mitchell Tam. Ms. Kahakalau: Okay so we have a motion and a second. Any further discussion? I call for the question...all in favor say aye. Motion is carried. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure form as reviewed. Mr. Robinson seconded the motion. All members voted aye. 70 Ms. Kahakalau: The next item the agenda is going back to or do we need to have a formal motion. Mr. Adams: We did have a motion that allowed us to move to executive session so I would move that we go back in our or that we bring forward the from the unfinished business item d, e, f, g and h from unfinished business. Ms. Kahakalau: Do I hear a second. Mr. Robinson: Second. Ms. Kahakalau: Alright. Any discussion? All in favor say aye...any opposed? Okay. Motion and Vote: Mr. Adams moved to bring forward unfinished business. Mr. Robinson seconded the motion. All members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII Mr. Adams: Madame Chair I would invite us to move on to item 8 given the time. Ms. Kahakalau: I'm in agreement with that. Do we have to have a motion in regards to that? Mr. Adams: We do not...it's just discussion. Ms. Kahakalau: Alright. 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. Mr. Adams: So I believe right now we're scheduled for December 6 which would mean I say separate...that's...given that the fact that we are normally the 2nd...we would report that we are going to be meeting December 6 and then I guess we can take a look at January's so that in the minutes are in the agenda for next year it's clear what we're doing and that would be what January 3 would be that Tuesday. Ms. Hirayama: Yes because we're staying with Tuesday for... 71 Mr. Robinson: Right. Mr. Adams: For Kenny right now...right. Mr. Robinson: I like the Tuesday's. Mr. Adams: So January 3`d is okay? Is okay with you? Ms. Kahakalau: It's not necessarily preferred but it's okay. It's fine. Mr. Robinson: I usually sober up by the 3`d. Ms. Kahakalau: You know what it is that teachers we have these really important attitudes about extended vacations so... Mr. Adams: Well...I mean is the 3`d Ms. Kahakalau: No. I'm good. Ms. Hirayama: The month of January is a five week month. Mr. Adams: January....the 3`d is first Tuesday...is that incorrect...is it the 2nd Tuesday? Ms. Hirayama: It's the first Tuesday. Mr. Adams: Okay. Mr. Robinson: And December 6th is at Ten O'clock still. We're still staying with Ten O'clock. Mr. Adams: Still staying at Ten O'clock. Right. Do we do it...is it supposed to be the second.... Ms. Hirayama: The second....well...second Wednesday of each month. Mr. Adams: Oh. We've been doing second Tuesdays haven't we... Ms. Hirayama: Yes. Mr. Adams: So the reason we did it on the sixth was because we couldn't do it on the 13th' or the 14'1'right? For us it would be the 10th would be the seconded Tuesday. Ms. Hirayama: Yes. Mr. Adams: How does that work for everybody? 72 Mr. Robinson: That's fine with me. Ms. Kahakalau: That's preferable. Mr. Adams: Okay. Ms. Kahakalau: The 10til I think that's fine. Mr. Adams: Alright. January 10? Okay. Ms. Kahakalau: Thank you for that. 9. ANNOUNCEMENTS Ms. Kahakalau announced the Board's next meeting on December 6, 2016 at 10:00 a.m. at the Hawai`i County Building, Council Chambers, 25 Aupuni Street, Hilo, Hawaii 96720 or at another location to be determined. 10. ADJOURNMENT Mr. Adams: I would Madame Chair move for adjournment. Mr. Robinson: I would second. Ms. Kahakalau adjourned the meeting at 1:51 p.m. Thank you very much everybody. Respectfully submitted: • . NAN\O--- Emily ama, Secie .ry 73 1 l