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HomeMy WebLinkAbout02-14-17 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS - MINUTES — REGULAR SESSION Tuesday, February 14, 2017 10:02 a.m. to 12:58 p.m. Hawaii County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice -Chair Douglass Adams, Member Rick Robinson, Member J Yoshimoto, Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau: Aloha Kakahiaka... Good morning. We have one more member that is on his way however since we do have a quorum and I know I what to honor everybody's time this morning ... I'd like to call the meeting to order of the Board of Ethics for the county of Hawaii at 10:02 a.m. My name is Ku Kahakalau and I'd like my fellow members to please introduce themselves. Ken Goodenow... Doug Adams. And as I said we are waiting for one more member and I also would like to announce that our fifth member Pili Kalele from Kona has resigned officially and so we are looking for another member -to join our wonderful board so if you know anybody ... please -let the Mayor know that you would love to serve on this very, very exciting and productive board...but I do want again thank Pili for her service and,...there's Rick. Perfect. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We're going to start with statements from the public. I don't have any in front of me....there is one coming. Aloha Rick. I do also want to wish everybody a Happy Valentine's Day. So we have two statements from the public. We'll start with Jon Olson. If you could come up please sir and tell us your name for the record... there's a little button to turn the microphone on and then if possible also tell us what agenda 'item you're speaking to. Aloha. ' Mr. Olson: Good morning. My name is Jon Olson and I am speaking on under new business... unfinished... and that is ... Petition No. 2016-20. Ms. Kahakalau: Okay thank you. Mr. Olson: Okay. Although,it doesn't state so in this it apparently is ... there's some complaint been filed about... Prosecutor Mitch Roth ... I think somehow participated in a contested case hearing by telephone. And this has to do with the small boats division I believe and ... full disclosure I know Mitch very well ... I've worked with him for decades ... he's been very helpful to our community and that probably is exactly the point. If you want the straight story ... you go to Mitch. He's trusted ... that he would have some comment about it ... the other reason I'm here is probably most of you who have absolutely no reason to have any first-hand knowledge of the small boating division of DLNR. You've never interacted with him ... well I sailed in here thirty-nine years ago and that's where I commenced to have interaction with the small boat harbors division of DLNR. I think if you want to look at the newspaper articles and all the available information ... it's probably one of the most corrupt inherently corrupt divisions of government. Certainly in the State of Hawai`i... its small scale stuff and I'll give you an idea of -how this works. If I want to get a slip... and all the slips are taken ... I get on a list. I have to fill out a form every year. Well when I sailed into Kaneohe Bay and signed up for a slip ... my number on that list never moved. Boats came and went but my number never changed and as I became more familiar with people in the area. They suggested that I needed to have something else in there in that envelope if I wanted that number to change. I can tell you that there have been a succession of harbor masters. I think probably the most public one has been the Waianae Harbor over on Oahu ... its legend ... yeah. I believe Mr. Underwood is the current person... before him it was Nancy Murphy ... she was removed. We didn't really find out why she was removed but she was removed. You can make your own assessment of that. Things have not really changed a whole lot and it's really unfortunate particularly of us because ... for a small community... Hilo Bay from a boating perspective and recreational boating in particular could be such a huge asset. The economic incentive I mean I can point to a little town along the California coast ... they make a living off of the harbor smaller than this. Creating hundreds if not hundreds of jobs and, we drive by it every day ... you look out there right now ... there's probably not a thing on it and we are ... I teach recreational boating safety and yeah it's a real ocean out there and you gotta know your stuff but none the less ... it's a huge opportunity and this is ... joined at the hip and that's why. So ... beware. Thank you. 2 Ms. Kahakalau: Thank you Mr. Olson. Our next person and I hope I'm saying it right. Bill Murtagh is that correct? Mr. Murtagh: Yes. Ms. Kahakalau: Please come up sir ... and then again please state your name for the record and the agenda item that you're testifying to if you know it. Mr. Murtagh: Good morning. My name is Bill Murtagh. Same agenda item for Mr. Roth. Thanks for giving me the time... a little nervous so bare with me. I had something real quick on my mind but after, listening to uncle over here I just wanted to touch real quick yeah everything he's saying is true ... there's a lot of bad stuff going on and just wanna let you know that it was me at the contested case hearing that this agenda item for Mr. Roth ... it was me it was my hearing that was there..'. and it was me who was complaining to Mr. Roth letting him know about corruption. I guess all were retaliation and taking away permits and circumventions of wait list. All of which I was directly involved with as well but it was me whose making that know to Mr. Roth and ... so that was my doing right there. There was never any ... I don't know a whole lot about this you know what stuff but I ... there was never any compensation ... there was never anything giving to Mr. Roth ... he didn't represent me in this issue. In fact he ... despite even how we live in aloha kind ways he wouldn't even take a piece of fresh fish that was caught off of my boat. He just wanted tokeep you know that so just ... I felt like needed to or was appropriate to let you folks know this and I don't know if what I'm about to tell you now means anything as .well but you know I've been to a couple of the land board meetings on Honolulu ... I have to fly over there to do this to kind of like protect myself or whatever it is but in sitting through those meeting I watched a state senator ... DOCARE... enforcement officers appear at those meetings and give testimony and say things that make it real clear the same exact words that I heard from Mr. Roth that ... hey I'm not here in my official position or capacity... I'M' here as an individual and I heard that happen as well and I'm not aware of any official complaints made against those people. I think it was just because of the nature of Mr. Underwood and the way he is. That this is why this,is going on today so ... just wanted to let you guys know that. Thank you. Ms. Kahakalau: Thank you sir we really appreciate that. We don't have any remote ... go ahead Counsel. 3 Mr. Yoshimoto: Mr. Underwood Mr. Yoshimoto: Ms. Kahakalau: Mr. Yoshimoto Madame Chair we are trying to hook up with Mr. Underwood at this time. Mr. Underwood can you hear us? Yes. I'm on the line now. (Recorded but not heard in chambers) He was supposed to attend by telephone ... so we're trying to get in contact with him. Alright. And then.... Ms. Kahakalau: Go ahead Madame Chair. Mr. Underwood: Can you hear me? (Recorded but not heard in chambers) 3. APPROVAL OF THE REGULAR SESSION MINUTES OF JANUARY 10, 2017. Ms. Kahakalau: So we don't have any additional statements from the public on any agenda items and so I'd like to move to the next item on the agenda which is the approval of the regular session minutes of .January 10, 2017. Has everybody had a chance to look at those minutes? Mr. Adams: I move acceptance. Mr. Goodenow: Second. Mr. Underwood: Hello? (Recorded but not heard in chambers) Ms. Kahakalau: Is there any discussion in regards to the minutes? Hearing none I call for the question ... all in favor of approving the minutes say aye ... any opposed? That motion is carried. Thank you. Motion and Vote: Mr.Adams moved to approve the minutes. Mr. Goodenow seconded the motion. All members voted aye. . Ms. Kahakalau: Go ahead Counsel. Mr. Yoshimoto: I understand there may be a request to take an item out of order. Ms. Kahakalau: Okay do we have such a request? Mr. Kamelamela: It's just a request and it's up to the board. It's just that I ... there's so much things that I have to work on and I was going to request ►a] the two be taken out of order. One of them is in the new business ... has to do with the Petition No.'2017-05. Ms. Kahakalau: Mic's not on and if you can please ... It's supposed to become ... is it on? Sometimes that one doesn't show red but it's still but ... there we go ... so if you could please state your name and then just for the record please. Mr. Kamelamela: Corporation Counsel Joseph K. Kamelamela. I was asking if two items can be taken out of order. I know it's an unusual request on the second one but one of it is in new business Petition No. 2017- 05 and then the other one is actually a discussion regarding ethics training for the department heads. Mr. Goodenow: Madame Chair. Ms. Kahakalau: Yes. Go ahead. Mr. Goodenow: I'd like to move that take those two items out of order. Mr. Robinson: Second. Ms. Kahakalau: Okay. Alright ... any discussion? No ... then I call for the questions all in favor of taking those two items as mentioned out of order please say aye. Motion and Vote: Mr. Goodenow moved to take the two items out of order. Mr. Robinson seconded the motion. All members vote aye. "Taken out of Order due to request of Corporation Counsel" b. Petition No. 2017-05: Request for an informal advisory opinion from a County officer or employee, to determine whether a proposed provision by HFFA concerning uniforms and helmets would be in violation of Section 2- 83(b) of the Hawaii County Code. Ms. Kahakalau: Alright sir that means your right there where you need to be and we can start with Petition No. 2017-05. Mr. Kamelamela: Thank you Chair and members of the Committee I really appreciate taking these items out of order. There has been a lot of matters that already been submitted and I just wanted to ... state 5 only several things. One is that ... we don't think it's correct that the Union put the badge on County uniforms that is purchased because it had nothing to do with County business. It has everything to do with the Union ... that's point one. The second thing that I wanted to address is that we had received a letter by James E.T Koshiba that had laid out certain things that he believes you should pursued this"board in favor of the fire ... what I wanted to, state is that some of the cases that he had cited. No it's not really applicable you know it's either misquoted or looking at California's statute for support. The second thing that he mentioned is that having the badge for some reason would help morale and all that and then put them in a special light with the public. You know what ... I don't think that's true because all of us recognize these firefighters as mean first responders and I don't see the fact of having a Union badge as playing any type of impact on that and what it seems to be one of the purposes that is that you know the Union may want to publicly point out that you know we have Union members but they forget to state that you know maybe not all of the firefighters are Union members and then to have one or two firefighters that don't want to join ... you know would put them in a bad light. So ... I would urge the board to basically rule that you know this is against our Ethics Code. Mr. Goodenow: Well I move that we make a finding that affixing the Union material on County property would be violating the Ethics Code. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? Mr. Adams: Can we ask questions. Ms. Kahakalau: Sure. Mr. Adams: Okay. Mr. Kamelamela you identified some ... you quoted from some documents that were supportive of that we don't have access to unless you all have access to. Ms. Kahakalau: I was looking for it as well and I couldn't find it. Mr. Adams: What we have is we have at least as I understand it we have the petition and we have the letter from the Attorney General ... no I'm sorry from the State Ethics Commission to the Attorney General's 0 office ... reference their concerns that are similar but I'm not sure we have anything that was supportive of the HFFA position. We didn't receive anything right? Okay. Mr. Kamelamela: I could make copies later ... or just show you what I have. Mr. Adams: Sure. So let me just ask a couple of questions if I could. Mr. Kamelamela: Okay. Mr. Adams: So as I was going through the petition and looking at the statement of the facts. Are there ... are you aware of...this is I guess ... this really is not a question for you it's really a question for whoever would be supportive on the HFFA side. If we don't have any from there then that's fine but I can ask is this ... do we have any other situation in the County where there is any non-government emblem on government property whether it be uniforms or vehicles etc.? Mr. Kamelamela: On County property no. Mr. Adams: Okay. I also, noticed that in the ... providing the position in the petition.. Ahe County ask for two things. One that the Board of Ethics find that the proposed collective bargaining provision is in violation of the County Code of Ethics and then also ask that we find that it's not a proper subject for negotiations with the HFFA. I think that we are ... it's well within our jurisdiction to address the violation of the Code. I would not be comfortable unless somebody was able to pursued me otherwise that we can address about the...whether it's proper subject or not for negotiations. Mr. Kamelamela: No I think...the first finding is fine ... that it violates the Code. Mr. Adams: Okay thank you. Mr. Robinson: Madame Chair if I may. Ms. Kahakalau: Yes please. Mr. Robinson: I'm just curious why did the Union ask to have a badge. Is there any particular reason or they just... _ Mr. Kamelamela: The reason was they felt that there would be a morale booster and then it would somehow be more recognition... to the firefighters that they belong to a Union. So those were the two reasons and so 7 when I look at those reasons you know I was suspect of those reasons because you know my perception of the firefighters is that they're firefighters ... they work for the County. Why need be a Union badge you know I mean it doesn't add to the fact that they're working for the people you know. Mr. Robinson: Okay. Thank you. Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: Are we in discussion? Ms. Kahakalau: Yeah. Mr. Goodenow: I mean it seems quite clear Section 2-83, Fair Treatment both (a)(1) ... all public property and equipment are to be treated as a public trust and are not to be used in a proprietary manner for personal purposes without proper consent and (b)(4) ... no officer or employee shall attempt to use ... the officer's or employee's official position to gain unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to using County property facilities, equipment, time for personal or private business or any other purpose other than for a public purpose. It seems pretty clear that it's not appropriate and maybe we could reference it in our opinion the State Ethics Commission's... Mr. Adams: Staff position. Mr. Goodenow: Yeah. Position. Just to put that in there. Those are my only cons. I'll be voting for the motion. Mr. Adams: I would agree with my colleague. As I was thinking about this, I really was trying to figure out where is there situation where we have seen this and what came to my mind was ... you see it on sports uniforms all the time. Whether it's Adidas or Nike Swoosh or something like that and I went.looking to see if I could find anything that discussed that and I really didn't find anything. Clearly there's a permission that's granted between that the government has in this case ... you know military academy, naval academy whoever ... and when you're dealing with State Universities for example that are institutions of the State and yet they have these provisions where they are allowing these E. companies to advertise with their logos on the uniforms of the student athletes are using. And so. that ... when I'm thinking about this that's really the only example I could come up with although it's possible that there are other areas as well. It's pretty clear to me at least with a just on the back of my mind that I personally never seen an example of this where first responders have had their Union paraphernalia ... you know police don't have a PBA patch on ... they have the City or the jurisdiction they have on. You know firefighters similarly EMS similarly so.. ,unless the EMS for example we often times will find that they are private companies and that's a different story doing contract work and that's not the situation that we're under here. So with the one example that I could come up where it's seems to be allowed but I'm not aware of how that works and I don't think that is a situation that is applicable in this case. I'll be voting in favor of this particular petition in the narrow sense. Ms. Kahakalau: I just wanted to check if there's anybody else that is here specifically for this petition... let's say somebody HFFA or anybody else ... I just want to make sure that we hearyouknow everybody but seeing or hearing none. I'm wondering if we need to do any further discussion or if we're good. Alright so we have a motion and we have a second and we've discussed it so at this point I'd like to ask for the question. All in favor of Petition No. 2017-04 say aye. Mr. Robison, Mr. Goodenow and Ms. Kahakalau voted aye. Mr. Adams: Aye ... just in terms of the violation of the County Code of Ethics. Ms. Kahakalau: Yes. Do we have anybody opposed? No so that motion is carried. Thank you Mr. Kamelamela. Motion and Vote: Mr. Goodenow moved that it would be a violation of the County Ethics Code if they affixed a Union material onto County property. Mr. Robinson seconded the motion. All members voted aye. 7.., DISCUSSION REGARDING ETHICS TRAINING FOR DEPARTMENT HEADS. Ms. Kahakalau: Your second item was Petition No.... E Mr. Adams: It's not a petition it's actually discussion item. Ms. Kahakalau: Yeah discussion item yes which is ... number... Mr. Goodenow: Seven. Ms. Kandkalau. Seven yes. Mr. Kamelamela: Before I speak on this topic ... may I approach the Board. I just wanted to share some materials that I got from Waylan Leopoldino... he's the Human Resource Manager for the HR. l just wanted to share what is called an Ethics Checklist. - Ms. Kahakalau: Yes. That will be fine. Thank you. Mr. Kamelamela: May I continue? Ms. Kahakalau: Yes. Please go ahead. Mr. Kamelamela: I know that there's been a concern about giving ethics training to the department heads which I think.is a great idea. The County as a whole you know had made efforts to train... whether it's Council or Administration: Areas dealing with ethics and so I know that the County Council had received some training on ethics because you know we always felt that that was an important part of government you know because people have to understand that when they work for government you know we just had to make sure that whatever resources or time would be devoted to government work... and similarly with the administration and so ... with respect to the work force....whenever there's a new hire ... you know there's a packet that's given to the new hire which also includes what people call the blue book. That book is the Code of Ethics ... after they receive the packet then HR would have a class and then part of the class would cover ethics and so Mr. Leopoldino had actually have developed this ethics checklist which I think is a good idea ... and so what I've told my assistant corp. counsel is thatyou know I wanted to use this because I know that it...we also. do training of Boards and Commissions whenever there's new members you know we do some training on ethics and then I thought that it ... I know that we don't usually give this out but this is something handy for Boards and Commissions to do. So what I know about the department heads is that there had been some department heads that worked with the County before so I know that they're familiar with the County Code. Those deputies that are like brand new to the County ... I know that two of them have deputies whose also is very familiar with the County but what 10 I intend to do since I'm a member of the cabinet is to make sure that each one of them did have some kind of training because like I said trying is a good thing and I intend to use this checklist as an aid because sometimes you know people have to think quickly whether you know they're in a particular area or not a conflict okay.. So this checklist is a great way to remind people of what their duties and responsibilities are in relation to the Code of Ethics. Ms. Kahakalau: Thank you very much for that. One of the reasons this came up . basically is because of the change in the statute that happened last summer and we're still kind of trying to figure out how to make that statute work so that people like we have somebody today that's come here multiple times already and it's kind of humbug in a way right so one of the things for us was you know to while we're doing the training and also to have these discussions with the people that are on the ground that are being affected by this new statute....to see what is working and what is not working so we can communicate back to the County Council and perhaps have some modifications to make the process flow better. So that was one of the.... so it wasn't necessarily that we thought that people weren't being trained or you know but we wanted be proactive on side but on the other side already addressed this new statute that kind of is making it a little bit difficult for some people because of the relation you know with the husband and wife and they're working with the County. I don't know do we have any other... Mr. Robinson: I just liked to say Mr. Kamelamela is it's refreshing to see you take a proactive stance and try to get the information out there early so that people are aware instead of us having to be the reactive receivers of something that's happened after the fact. So that's extremely helpful. Thank you for that. Mr. Adams: I would just add to that ... I think that that's what we're also trying to be it proactive .as well. I think one of the things that we've discovered anything over the last few years is it's important that our senior leaders in the County are aware of the provisions that are part of the Code of Ethics right and we want to be open to those kinds of conversations whether it's in here but it doesn't necessarily have to be in here and that ... those training settings provide exactly as the Chair stated. The opportunity for conversations about... whether it hypotheticals or concerns or issues that allowed the leaders you know to address those things so we want to make sure I think that we remain open to those opportunities too. 11 Mr. Kamelamela: Yeah then I just wanted to add something too. Our office you know does also offer training to all of the County ... part of the program that we have or had in the past involved the deputies from our office ... a training so I know that ... ethics training you know has been open to everybody ... at least once every six months. Yeah so we want to make sure that if something new comes on board you know we want to make sure that we let the people know. Ms. Kahakalau: So we want to thank you for coming and I really like the checklist you know and as a teacher I like to be able to look at something and see immediately what it's all about and sometimes just breaking it down into manageable things right ... when you look at ... you get the blue book but a) who reads it and b) who gets it you know kind of thing. We got to be honest about that right so a checklist like that's concise and you know just really gives you the big picture and if you need more information than you can go to the book and read the specifics on it so I really like that. Thank you for that and thank you also for coming and sharing that I also want to check just because we're on this item if there's anybody else that's here that wants to testify or wants to talk in regards to that item and if not ... then we really don't need to do a motion or what is our procedure. We'll move on to the next agenda item, but thank you Mr. Kamelamela for coming today and sharing this with us. We appreciate your time. Mr. Kamelamela: Mahalo Nui Loa and Happy Valentine's Day. Ms. Kahakalau: Aloha. 4. NEW BUSINESS a. Petition No. 2017-04: 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 Bid No. 3342, Tree Trimming for the Department of Public Works. Ms. Kahakalau: Our next item on the agenda is going back to new business Petition No. 2017-04. Aloha my dear. Ms. O'Dell: Good morning. Ms. Kahakalau: For the record can you state your name again and then just tell us a little bit about your petition. Mr. Goodenow: Do we have to do that? Closed or open hearing? 12 Ms. Kahakalau: We're assuming that you're okay -with an open hearing since you didn't request a closed hearing. Ms. O'Dell: I'm fine. Ms. Kahakalau: Okay. Thank you. Ms. O'Dell: My name is Naomi O'Dell. I am the administrator for the Vehicle Registration and Licensing Division under the Department of Finance. Basically, I did request an informal advisory opinion back prior to the law taking effect for the Department of Public Works. However, when I was reviewing the bid it just seemed to be specific to that one bid that I was doing in March of last year and so I'm back again to see ... about a new opinion relative to the Department of Public Works for a bid that we are submitted for. Ms. Kahakalau: Mahalo Ms. O'Dell. We appreciate you coming as we had mentioned to Mr. Kamelamela... we understand the ... I don't want to call humbug but it's kind of to a certain extent for people like yourself you know to have to come but we do appreciate you coming and seeking clarification. Mr. Adams: If I could ask. In'2016-02 which I unfortunately don't have in front me. What was it that ... lead you to believe that you needed to ... we are trying to couch our... orders regarding these petitions in sense so that they are ... of course if there's any change in situation then a new petition needs to come in plus ... what we're trying to couch here per department ... particularly in your case. So what was it about this particular petition or this bid that was different... a different situation or ... I'm just trying to understand why we needed to ... if we've covered the Department of Public Works in previous order regarding your husband's bidding ... what's different this time? Ms. O'Dell: I was actually notified by the Purchasing Department. They felt it was bid specific so when I looked at it...it does make mention to the bid itself by number and in the findings and conclusion ... it basically states that the facts as presented which you know ... I'm not an attorney, but I would think that the only facts I presented was relative to that bid. 13 Mr. Adams: Right and so that actually is the other question which was ... the Purchasing Department was also concerned and you received word back from them regarding that. Mr. O'Dell: Yes. Yes. Mr. Adams: Thank you. Mr. Goodenow: This is a competitive sealed bid process or? Mr. O'Dell: Yes. Mr. Goodenow: So ... I'm mean it's Deja vu all over again I guess with the other ones that you had for the other ... water or whatever it was ... I move that we find that there's no conflict of interest for ... it's you husband? Ms. O'Dell: Yes. Mr. Goodenow: Mark O'Dell. Ms. O'Dell: Yes. Mr. Goodenow: That submit a bid with Department of Public Works. Mr. Adams: The conflict is her conflict. Mr. Goodenow: Right ... Oh ... Okay well there's no conflict for her if he submits the bid. Ms. O'Dell: Well I kind of like do the paperwork for him so basically he's the one telling me what to bid but I'm actually the one that submitting it and it's an electronic submittal. Mr. Robinson: You're performing clerical services. Ms. O'Dell: Yeah. Mr. Goodenow: But it's his... Ms. O'Dell: His Company. Mr. Goodenow: His company and not your company or... Ms. O'Dell: Part owner. Mr. Goodenow: Well... 14 Mr. Adams: That's not a change in ... I'm just looking at the order that we're gonna be voting on or approving that we've voted on last month which is the same situation. You haven't changed your situation. Mr. Goodenow: Nothing's changed. Mr. Adams: Other than it's the ... it's a different department. Mr. Robinson: I'd second that motion just for discussion purposes. Ms. Kahakalau: Okay. Mr. Goodenow: Alright. Ms. Kahakalau: Thank you. Mr. Goodenow: I'd like to make it as broad as possible but... Mr. Adams: The way we've been doing it in particularly in this situation is I think we have been looking at ... when we had this long conversation last summer ... my memory of that conversation ... we could go back to the minutes but my memory of the conversation in brief is that we could go as far as addressing bids to various departments. Mr. Goodenow: Right. Mr. Adams: And that ... that would ... as long as within the department... within our findings and conclusion of law ... what we talked about a specific department that that would then cover any other bid processes that were going be accomplished by that individual or by the petitioner with that office provided that there were no other situational changes in the facts. Mr. Goodenow: Right. Mr. Adams: And so that's why I'm asking the question about Public Works but if in our order we specified a particular bid in our conclusions. It's not the same thing to say it in the facts ... the facts are the facts. Mr. Goodenow: Right. Mr. Adams: The conclusion is the piece there which talks about at least that's my view but if purchasing has a different position on this ... that becomes a problem in how we word our order. 15 Mr. Goodenow: Right. Mr. Adams: To me....Right. So if our order ... because the way we've been doing the order I mean we just go back and take a look at it. We are finding no conflict for petitioner if the bid is with a specific department and as long as that is where the bid is going on the next time without a specific bid number being in there than that's to me there shouldn't be an issue with purchasing receiving that and that being in accordance with the law as it's written. That's how we've approached the statute or the ordinance so far. Mr. Goodenow: I agree. Mr. Robinson: I just ... if I could. One thing I heard from Ms. O'Dell that concerns me is ... is that purchasing considers this to bid specific -or each time somebody has a bid they have to come back here. Mr. Adams: That's what I heard as well. Maybe it's this one time. Ms. O'Dell: No ... because the bid was mentioned within the document itself they thought it was bid specific. Mr. Robinson: Oh I see ... that's just the findings of fact. Mr. Goodenow: Findings of fact right. Ms. O'Dell: It was basically this one because the next one you did for Parks & Recreation you kind of just blanked it in the findings and conclusions where you just said the Department of Parks & Recreation. Mr. Goodenow: I see. Ms. O'Dell: So I think that one was a little bit better. Mr. Robinson: So it's important like Mr. Adams point is that we don't make it to specific so. Mr. Adams: At least in the conclusion of law I think that we have in these situations decided that at the department level we can be as broad as the department level and not require a bid by bid need for us to review these things and then of course this is a work in progress so the next time you put something into the Department of Public Works for your husband then I guess we'll see whether or not they accept it or not. 16 Ms. Kahakalau: Go ahead sir. Mr. Goodenow: So for crafting the opinion I mean I think we used the exact same language about her ownership and her job duties ... the fact that she has no.... Mr. Adams: As long situations haven't changed... Mr. Goodenow: Those haven't changed at all. Mr. Adams: She doesn't take a whole lot of time writing us this letter either anymore. Ms. O'Dell: No I don't. Mr. Goodenow: So we'll just put all that into this opinion... right... just cut it out from the other one pretty much and put it in and I think we're good and if they give you a problem ... call corp. counsel because we've made our intent clear as what you know we intend to be covered. Ms. O'Dell: I think the Public Works bid opinion was the first one that you wrote and then the next one you did.,for Parks & Recreation was more clear-cut. Mr. Goodenow: Mr. Adams Ms. O'Dell Good. Alright. We got better at it. Yes. Ms. Kahakalau: That's good news definitely and yeah like you said it was the very first time that we tried to figure out how to respond to this new statute right. So do we have any further discussion? Alright in that case I call for the question all in favor of the motion to approve Petition No. 2017-04 say aye. Any opposed? So that . motion is carried. Thank you Ms. O'Dell you have a wonderful day. Ms. O'Dell: Do you mind if I bring up the unfinished business ... the Petition No. 2017-01 & 03 since that's me also. Ms. Kahakalau: Yeah because we've already.... Mr. Adams: If I may as a point of order. Ms. Kahakalau: Go ahead. 17 Mr. Adams: Are you going to question anything that's there or are you concerned you have to be here for that? Ms. O'Dell: I'm concerned that I have to be here for that. Mr. Adams: You don't have to be here for that. Ms. O'Dell: Okay. Thank you. Ms. Kahakalau: And it would be ... okay so we're gonna go to unfinished business first yeah but I agree you don't have to be here. Ms. O'Dell: Okay thank you. Ms. Kahakalau: Thank you have a wonderful day. Motion and Vote: Mr. Goodenow moved that there is no conflict of interest. Mr. Robinson seconded the motion. All members voted aye. 5. UNFINISHED BUSINESS a. Petition No. 2016-20: Continued review of petition alleging that a County officer or employee is in violation of Sections 2-83 (Fair Treatment) and 2-84 (Conflict of Interest) of the Hawaii County Code of Ethics because he used his position to influence further private interest regarding a contested case hearing. (Participating by telephone) Ms. Kahakalau: We are still hoping... Mr. Yoshimoto: So Madame Chair we need a brief recess to reconnect Mr. Underwood. Earlier he could hear us but we couldn't hear him so if we can have a brief recess. Ms. Kahakalau: Okay so we'll do a brief recess until we get Mr. Underwood on the phone but you folks can stay where you are. 10:46 a.m. The Board took a brief recess. 10:51 a.m. The Board returned from recess. Ms. Kahakalau: Hello Mr. Underwood. Can you hear us? Can you hear us now? It appeared like we hear him but doesn't sound like he hears us. Sir can you hear us? 18 Mr. Yoshimoto: He hung up. We'll try again. Ms. Kahakalau: Okay. Mr. Goodenow: Where is he located? Ms. Kahakalau: In Oahu yeah. Mr. Underwood: Can you hear me? Ms. Kahakalau: We can hear you can you hear us sir? Mr. Underwood: Yes I can. Ms. Kahakalau: Oh wonderful. Aloha. Mr. Underwood: Aloha. Ms. Kahakalau: So we are just beginning Petition No. 2016-20. Do I need to read again or is everybody good? Yup alright. So if the two people that are in the room with us if you can get it started by introducing yourself and then speaking to the petition and then Mr. Underwood we having you going after that. Mr. Strauss: Thank you Madame Chair. My name is Steven Strauss and I'm a private attorney and I'm representing Mitch Roth who's present in his capacity as a citizen and a lawyer. I do not represent him as a Prosecutor of the County of Hawaii and he will to the extent that I have some overlap I hope that you'll excuse that but to the extent that he needs to make representation as the County Prosecutor he'll do that on his own. Ms. Kahakalau: Thank you. Mr. Strauss: Let's start with... Mr. Roth: Does Mr. Underwood go first or do we go first? Ms. Kahakalau: We'll let Mr. Underwood go first based on the Counsel suggestions. I apologize... Mr. Underwood could you please speak to Petition No. 2016-20. Mr. Underwood: Yes Madame Chair and Board members. Thank you for hearing this. I'd like to start off first by saying that while I do work with the Department of Land and Natural Resources ... I file this petition in my individual capacity. I'd also like to confirm that whether 19 you folks all received the approved minutes from the board meeting? DLNR board meeting? - Mr. Yoshimoto: So Madame Chair ... let the record reflect that we did receive the minutes emailed by Mr. Underwood. Board members should have that in their packets however until this document is received by the board in an open hearing it's confidential so this time Mr. Goodenow would like to... Mr. Goodenow: I will thank you. I'd like to move that we accept receipt of the official minutes for the board meeting of the Department of Land and Natural Resources for October 28, 2016. Mr. Robinson: Second. Mr. Strauss: I'd like to raise an objection at this point. I haven't seen these that you're moving... Mr. Goodenow: We can't give it to you until we accept it. Mr. Strauss: Is there representation that these are the complete minutes of this or are this excerpted minutes. Who prepared them ... I think that you need lay some kind of foundation. Mr. Goodenow: They are stamped approved is my understanding. Take a look at them now. Mr -Strauss: Thank you. Mr. Goodenow: My motion is to receive this document. Mr. Strauss: I won't look at it until you've dealt with your motion. Mr. Goodenow: Alright so...whether it is or not that can be debated later ... we received it from Mr. Underwood so I would state that we accept the ... what is proposed to be the minutes from Mr. Underwood. Ms. Kahakalau: Okay so we have a motion and we have a second right. Mr. Robinson you seconded it? Mr. Robinson: _ Right... correct. Ms. Kahakalau: Do we have any further discussion in regards to accepting those minutes? .Alright then I call for the question all in favor say aye. 20 Motion and Vote: Mr. Goodenow moved to accept the minutes. Mr. Robinson seconded the motion. All members voted aye. Mr. Yoshimoto: So. Madame Chair were you going to allow Mr. Underwood or Mr. Strauss to address. Mr. Goodenow: I think we accept them first and then... Ms. Kahakalau: That was my understanding that we would accept them so that way they become sort of public or useable in this context and then for us cause we haven't reviewed them either you know then if it's okay with everybody we can just take a minute ... Mr. Underwood we'll look at those minutes just for a moment if you can give us a little bit of time before proceeding. I will let you know when we find a chance to look at them. Mr. Underwood: Okay. Mr. Strauss: It appears that Madame Chair it begins on page 6. Mr. Goodenow: Did we vote to approve? Mr. Robinson: We haven't voted yet. Mr. Goodenow: We haven't voted so let's just have the vote and... Ms. Kahakalau: No'we did. Didn't we vote? Mr. Robinson: No. Ms. Kahakalau: Okay. Mr. Robinson: Motion to second. We never had the vote. Mr. Yoshimoto: I thought we just did. Mr. Goodenow: Oh did we? Ms. Kahakalau:. We did. We just voted and now we can look at them and make comments to it or use them as, reference whatever. So J did you only have one of these? Mr. Goodenow: This is my ... this was received from the Department of Land and Natural Resources. Its draft minutes that I got from the department. Ms. Kahakalau: No I didn't get anything in there. 21 Mr. Robinson: I didn't get one. Ms. Kahakalau: Yeah no. Ms. Hirayama: It's stapled to the petition. Ms. Kahakalau: Oh. Mr. Robinson: I got that one ... that one's. got portions in it right. That's the one we're talking about right. Mr. Goodenow: Did you pass out the ... Mr. Underwood's submission? Mr. Robinson: Oh that one okay. Mr. Yoshimoto: Yes. Madame Chair I do have a question for Mr. Underwood if I can just on a... Ms. Kahakalau: Yes please: Mr. Yoshimoto: Mr. Underwood this is J Yoshimoto and deputy corp. counsel to the board. You know the minutes that you emailed over they end on page 24 ... is that the end of the document or ... could you clarify for us. Mr. Underwood: That is correct. Mr. Yoshimoto: Okay so that's the end of transcript for this proceeding or that proceeding? Mr. Underwood: Yes it is. Mr. Yoshimoto: Okay thank you. Mr. Strauss: Mr. Yoshimoto I would note that these are minutes and it's not a transcript although it appears there is a transcript available and for some reason it was not submitted to the Ethics Commission and contains for example Mr. Roehrig's support of his statements but what you have here is somebody's view of what happened that's been adopted as minutes. Mr. Yoshimoto: And board members I would agree that looks like what it is and I'm also curious as to what happened to the actually transcript of the first part of the meeting. It looks like its summary minutes so that's something that the board should follow-up with Mr... 22 Mr. Goodenow: I will note that this is Mr. Goodenow speaking. I did receive though they were draft minutes ... the complete minutes and it includes Exhibit A which is a transcript of a portion of those minutes ... but I guess we don't have those before us that was ... I don't know if it will be relevant but maybe it would be best to continue them. Mr. Strauss: Well this is Mr., Underwood's petition ... let's move on ... this is what he's presented and we got to deal with what he's presented. Ms. Kahakalau: Okay Mr. Underwood then can you please continue. Mr. Underwood: Sure. I submitted the minutes with Exhibit A and it ends on page 24 that you've been talking about.—because of the seriousness of this petition... Chairperson (inaudible) DLNR felt that Mr. Roth's testimony should be translated verbatim so that's what Exhibit A is....it's his testimony verbatim. Now do you want me to go ... what occurred... just go thru my side of the story? Is this how it works? Ms. Kahakalau: Yeah generally you would provide -a summary of you petition. Mr. Underwood: Okay. So basically on October 28, 2016 item J4 that went before the Board of Land and Natural Resources was a request to deny a petition for a contested case hearing on the part of William Murtagh. This was ,due to the fact that he was not able to substantiate his gross receipts for his business and the board voted to uphold staff recommendation. At this meeting, Mr. Murtagh arrived with two other people. I'd never met either one of these individuals before until this meeting. Mr. Murtagh gave his testimony before the Board of Land and Natural Resources and at the end of his testimony ... he turned and asked for Mr. Roth who was the elected Hawaii County Prosecutor to come up and testify on his behalf. So on page 20 of -those Exhibits... when Mr. Roth came up ... he identified himself as the Prosecuting Attorney for the County of Hawaii and he went on to testify and during his testimony he alleged corruption ... he alleged retaliation on the part of myself as well as my staff with no documentation whatsoever to support any of these allegations. During Mr. Roth's testimony, Board member Yuen stopped Mr. Roth to ask him what capacity was he actually here testifying in. Was he in his individual capacity or was he here as his official capacity as the Hawaii 23 County Prosecutor. On page 22, when Mr. Yuen asked that question specifically.whether Mr. Roth was there as the Hawaii County Prosecutor or in his' individual capacity ... he responded that he was yes and no there. He never came out to say that he was testifying in his personal capacity and it's very clear that he was testifying as the Hawaii County Prosecutor. Also if you go down the minutes a little further towards the end of page 22...Mr. Roth also states it's hard for me because politically this is not a very good idea for me to do. I put myself in all sorts of peril by doing this. Mr. Roth also claims in this testimony that he came on his own dime. That he took time off from Work ... well that's irrelevant. How Mr. Roth attended the Board of Land and Natural Resources meeting doesn't matter. What does matter is half that meeting he represented himself as the Hawaii County Prosecutor and he represented the interest of Mr. Murtagh during that meeting. Also lastly, on page 24 ... Mr. Roth said that ... he said "and so that kind of goes to why I'm here; because it just felt wrong to me as a representative of government So if Mr. Roth truly was there and was truly concerned as an individual that there was some wrong doing going on he could have told that to the Board ... also as the Hawaii County Prosecutor Mr. Roth had every opportunity to do his own investigation and to this day ... I don't even ... we still don't know what all these allegations are ... so following this meeting I spoke to our Chairperson about it and I requested that the department of the attorney general be involved and to investigate any and all allegations of wrong doing that there may be and I believe that investigation has started. So there's two issues here that I wanted to make very clear. In my opinion, Mr. Roth violated the Hawaii Ethics Code, Article 15, Section 2-84 (Conflict of Interest) by representing Mr. Murtagh at a public meeting as the Hawaii County Prosecutor. The second thing he did is Mr. Roth alleged corruption and retaliation and it's stated in the minutes based on no evidence, provided no evidence and I'm used to hearing this occasionally from.the general public when an issue doesn't go their way they'll say some certain things ... but when the Hawaii County Prosecutor makes a statement like that in an open public meeting ... that carries a lot of weight. Now whether that falls as an ethics violation, I'm not sure but I am following up with the Office of Disciplinary Council regarding unprofessional 24 behavior in that regard. So that's basically what happened and that's why I filed this petition. Ms. Kahakalau: Thank you Mr. Underwood. Mr. Strauss: Thank you Madame Chair. Steven Strauss. It's ironic that an opinion expressed by Mr. Roth that the division of boating and recreation and its director are corrupt and retaliatory generates a baseless retaliatory petition which is what happened in this case. Mr. Underwood claims that he started an investigation with the AG's office ... I can tell you that investigation started long before Mr. Underwood contacted them and they are investigating corruption and retaliation in his department. Mr. Underwood doesn't like the way the prosecutor investigated this claims of corruption and retaliation... So what ... that's Mr. Underwood's opinion. He didn't talk to me so what. That means nothing and he'll probably get somebody who'll get around to talking to him in the course of this investigation but there are a lot of witnesses to interview. The prosecutor must do his job. Lawyers must uphold their oaths. Citizens have a right to petition their government. I've handed you two documents. One is a statement of the first amendment and I've put in bold the petition clause. No one including State officials can frustrate someone's ability to petition the government. That's what Mr. Roth was doing. Mr. Roth was doing. He was presenting testimony ... he was petitioning the government and he was saying hey this guy should have a contested case. That was not an evidentiary hearing so Mr. Underwood claims that he didn't present any evidence.:; that's irrelevant:. chat's not what the purpose of that hearing was for ... is to determine whether there should be a contested case ... not present a contested case. When government retaliates against individuals be it government officials or private citizens or lawyers or all three.:.it violates the first amendment... the right to petition and also violates equal protection... another constitutional violation. Mr. Roth is sworn to uphold the constitution ... laws of the federal government and the State of Hawaii and the County of Hawaii. As a lawyer, he takes that oath ... as a prosecutor he takes that oath. It doesn't matter whether he testified in part as a government official regarding investigation that he had begun or as a private citizen or.as a.lawyer supporting someone's right to be heard by their government... it doesn't matter. Let's look at the merits of 25 Mr. Underwood's claim. He claims that Mr. Roth violated Section 2-83 and 2-84 ... conflicts of interest, article 15. When you look at those provisions, they have to do with financial gain ... pecuniary interest ... not the interest of a citizen rights but whether someone has a conflict of interest because for their own interest... financial interest or for the interest of a member ... somebody they're associated with or a family member. They got something to gain from taking the action that they're doing. Mr. Underwood has not alleged any financial.gain to ... that Mr. Roth would have acquired. Mr. Underwood hasn't even alleged that Mr. Roth has a boat or an interest in a boat ... he doesn't ... it doesn't fall within Mr. Underwood's jurisdiction so he can't retaliate against him with regards to permits that he doesn't have. He has to do it this way and then go to ODC as he just told you.. This is egregious behavior when somebody is accused and their department is accused of not serving the public interest ... do you circle your wagons and lash out at those that are accusing you... apparently so ... at least in Mr. Underwood's world. That's not the world of ethics that we deal in. Ethics is doing the right thing. Mr. Roth had a duty based on his investigation to report this to a governing body that has jurisdiction over Mr. Underwood. He could not remain silent ... he had nothing to gain from this and as he said ... he did do it at significant potential political cost as you see from this type of bogus retaliation from Mr. Underwood. _Has Mr. Underwood proved to you that his department has no corruption and does not retaliate... -no. In fact if you were to get the complete transcript... not just a portion that Mr. Underwood gave you. You can, go look at Mr. Roehrig from the land board scolding Mr. Underwood and telling him that appears to be retaliatory to me from his boss. So to pretend that Mr. Underwood is somehow disgraced for something he didn't do or his department didn't do or Mr. Roth committed some kind of ethical violation without even showing the basic underpinnings of financial interest or pecuniary gain shows and reveals this petition for exactly what it is. Reveals this petition for exactly what it is ... retaliation and you should not take it any further. Say thank you Mr. Underwood... you haven't even stated a claim here. Mr. Roth: If I could say one other thing. If you look at the Charter ... what the prosecutor is responsible for. Section 9.3 of the Charter (b)(1) prosecuting attorney may research, evaluate, make FW recommendations regarding crime, ' crime prevention. and criminal justice system to the governor, the legislature, the judiciary, the council, the mayor, the Hawaii Police Department and other criminal justice agencies, or the general public; as the prosecuting attorney deems appropriate. What I did I could have gone on the' County's dime and done as a prosecutor. I felt bad for Mr. Murtagh. A case came into our office that alleged illegal acts ... we felt that there was illegal acts ... we asked for further investigation by the Department of Land and Natural Resources. We were unable to get those within the statute of limitations. My department I felt let him down ... I felt the State and government let him down ... because of that and because I. felt that he was treated wrong ... I felt it important to stand up. As I started investigating into DOBOR and Mr. Underwood's actions ... I couldn't find anybody who told me anything good about DOBOR. You've heard people testify today about corruption... you've heard Mr. Murtagh testify ... I wouldn't even take fish from him because my feeling was I'm not doing this for any political favors and yes putting myself out there did put me in all sorts of harm and peril and as you see you know Mr. Underwood is doing what everybody told me he would do to them.:. retaliate. This hearing is retaliation forme going to tell his bosses you need to investigate ... by the way I didn't go only to the land board ... I talked to the governor ... I sent letters to the DLNR Chair ... I talked to the Attorney General to look into this matter. I felt that strongly... also what's not. said....there was an Ombudsman opinion that has went. against DOBOR and Mr. Underwood. They feel like they're untouchable. If we don't stand up as a people ... as a government to right . wrongs ... what does that say about us? Integrity is doing what's right no matter what the consequences are and I felt that strongly and I still feel that strongly. When asked about putting this as a public or private I think it should be public. I think more people need to be aware of what's going on and yes there is an investigation going on and you know unfortunately I think that had to happen by me'going to the Department of Land and Natural Resources to give this man a contested case hearing. There was a taking ... a constitutional taking in my opinion ... he was wrong and he remains wrong today. That's why I did what I did. I'm happy to answer questions. 27 Mr. Strauss: One final point. Mr. Underwood said that Mr. Roth represented Mr. Murtagh. There's no evidence that that's the case. It's contrary to the minutes ... it's contrary to the transcript. It's simply a false statement. Mr. Roth: I was there like I said on my own dime and I wasn't representing him I was representing the truth. It seems to be something that that department may need to look at. Ms. Kahakalau: Thank you very much. Mr. Robinson? I have two lights going... Mr. Robinson: Go ahead. Mr. Goodenow. Ms. Kahakalau: Okay. Mr. Goodenow: You had mentioned that there was an existing case ... statute of limitations.:.being what they were you couldn't proceed. Could you give us a little more information about that? Mr. Roth: Sure. Mr. Murtagh was on a list to get his permit or space I think it was mooring or maybe it was a dock space. Somehow his documents to the Department of Land and Natural Resources and someone at the Department of.Land and Natural Resources, DOBOR Division changed the size of his boat so he was no longer eligible for that boat size. Mr. Murtagh has had all sorts of things happen. As a matter of fact, the reason I went to this hearing while I was investigating that ease and asking DLNR to do further investigations ... the DOCARE officers. All of a sudden this audit comes up. We're told it's a random audit. At the hearing it wasn't a random audit ... it was a target audit. You know there's about four different things ... four or five Mr. Murtagh ... you can bring him back up ... he can tell you all the different things that happened. When all these things happened ... his son was on a list ... they jumped over his son. There was all these little coincidental things that when you have four or five of these coincidental things happening... it's no longer a coincidence. I think it needs to be investigated and that's why I was there. Mr. Strauss: I can share a little bit more information about the specifics Mr. Goodenow would like. In its request that Mr. Murtagh's request for contested case hearing be denied submitted August 12, 2016. Apparently authored by Mr. Underwood and/or his staff. It started out saying that Mr. Murtagh was red flagged because he reported 28 monthly gross receipts in round numbers ... he was taking cash. He had, an accountant... the accountant said he kept a journal and the department says well that's not good enough. Produce documents that you don't have and it went from stating that this suspicious or red flagged by the time you reach page ... let's see ... I want to quote it exactly. These were termed as patently false. So it went from being treated... these journal gross receipts and his report as . suspicious because they.were round numbers as to patently false. Mr. Goodenow: What page is that? Mr. Strauss: . . Let me get that for you. Mr. Goodenow: You're looking at the DLNR's submission... Mr. Strauss: That's correct. Mr. Goodenow: To the October 28th meeting which I got offline but we don't have that. Mr. Strauss: Okay. Mr. Roth: At the hearing though one of the things that happened is Mr. DeMello who paid for...the best way I can explain these things from my understanding is like a time share for fishing. He got up and he testified that he paid him this money and so you know... Mr. Strauss: I'll quote you the exact paragraph ... page 4. In this case Mr. Murtagh provided patently false numbers as to actually gross receipts. As first, he seemed to admit the numbers were false but later insisted they were accurate... again unsupported. Mr. Murtagh admittedly has no evidence whatsoever that the numbers represent his actual gross receipts even though he provided, testimony and statement from his journal and his statement from his accountant... and this is the fun part. It is in fact literally impossible that the reported numbers could be accurate. What universe are these people living in? Mr. Goodenow: I understand that ... I'm. not so interested in the merits of what went on with DLNR but going back to the case where you had the document that was altered. How did that prosecution or I guess investigation begin? Mr. Murtagh submitted to you ... the police or... 9i Mr. Roth: My understanding was Mr. Murtagh made a report to DOCARE. DOCARE went out and they investigated. DOCARE is another, arm of DLNR that does the investigations. That case came to our office ... one of the deputies had the case ... he looked into it and based on what was in that report ... our office declined it. We have an ethical duty not to charge cases we don't believe we can prove beyond a reasonable doubt. Mr. Murtagh who at that time I had never met before called my office and you know I guess he went through the chain and finally came up to me and he brought this concern and he told me that there's people in ... I believe DLNR that are also telling him that there's retaliation. So you know I get complaints about police officers and law enforcement all the time. Most of the time I take it with a grain of salt but always try just look to see if there's any smoke and what I found when I started looking into this smoke is I found out a backdraft. I had DLNR officers telling that you know yeah it's probably retaliation what goes on over there. There's no doubt and I started talking to the boating committee. You know in today's paper ... West Hawaii Today... there's a great opinion by Rip Gaftney that talks about Mr. Underwood and DLNR and Susan Cases letter and other kinds of financial things that need to investigated. Talking to the Hilo people... they're having similar things and so this was more than Mr. Murtagh. Mr. Murtagh kind of put me on to something and I said wait a second. If I let corruption go and not even look into what's perceived corruption... what does that say about our justice system and so I started looking into that. I wrote to the DLNR Chair and told her ... I'm asking for an investigation cause I believe from statements inside the DLNR that there's problems and there's you know retaliation. Susan Case wrote back to me ... we're looking in ... we've looked into this ... who are the people inside of DLNR that are telling you that there's retaliation. It's like I'm not giving you a whistle blower... that's not the way this game works ... and you know I felt I had to go because I wasn't getting any place by talking to the other people that needed to be talked to. Mr. Robinson: Mr. Roth she asked'you twice in that response ... not once -but twice . who are these people. Mr. Roth: Right. Mr. Robinson: I found that kind of interesting. 30 Mr. Roth: I was dumb founded. I was literally dumb founded and it scared me. Ms. Kahakalau: Mr. Goodenow. Mr. Goodenow: I know we're not in discussion yet but I want to preface this next line of questioning a little just by saying that you know when I look at the code ... the specific language... you weren't there as a representative ... you didn't get any benefit ... you know I think it's pretty clear from where I am that okay that part is not really an issue but if you would permit me ... you know I'd like to ask about ... you know sometimes with lawyers it's not only about financial interest so I would like a response if you're willing to provide it ... I mean ... let's say that there was ... a police report or something that came to your office saying hey there's corruption going on. Would you be able to prosecute that or would you have to declare a conflict and say you know what I cannot prosecute this. Mr. Roth: So let me answer it in this way. The way the prosecutor's office works is that an outside investigating agency makes the report and then they send that report to us. There are times like this time where people come to our office and say hey look there's something you need to look into and what I generally do if it's the police ... I'll refer it to the police because this is a State agency and we're talking about people not just on this island but on the island of Oahu ... I'm hearing stuff from Kauai and from Maui as well as State issue. I would refer it to the Attorney General's and that is where I went and I talked to Attorney General Doug Chin on numerous occasions about this as well asking them to do something and you know in their defense they have been doing something. Often times ... when there's an investigation ... you don't talk ... you asked me about an investigation ... we have big cases. We're not going to give information about those cases out. So ... once it comes back ... I think at this stage ... I'd absolutely probably have to conflict out because of where I am ... but would we go out and do the investigation as the Office of the Prosecuting Attorney ... we don't have the resources just to do that at this time. Mr. Goodenow: Once last question and I know this wasn't alleged but I'd appreciate your response or your attorney's response. Under fair 31 treatment there is a section that says ... all person shall be treated in courteous, fair and impartial manner. Mr. Roth: I'd love to answer that question. Mr. Goodenow: Okay. I mean in regards to Mr. Underwood ... I'll let you respond to that. Mr. Roth: I'll go even one step further. Under HRS 7.5 is the aloha spirit law ... talks about how government officials are supposed to treat people. I can tell you that Mr. Underwood did not treat people with aloha and in this case they didn't give the due course. Mr. Underwood complains that I didn't come talk to him. Well guess what ... if I'm dealing with a drug dealer ... I'm not gonna say hey Mr. drug dealer...we're gonna be investigating you because we believe that you're committing criminal acts. I didn't even mention Mr. Underwood's name to my knowledge there.:.you know ... I brought up that I saw a problem ... it needs to be investigated and so I believe that I did give him fair treatment ... I mean if not talking to him is his reason for believing that that's not ... I you know ... would have to do that for every criminal that we're investigating and when you're talking about corruption... it's a difficult kind of investigation to do when you don't go right to the person and say we want to catch you doing something illegal. Mr. Goodenow: Alight thank you. Ms. Kahakalau: Alright. Any questions? Mr. Robinson: If I could for Mr. Underwood? You still there Mr. Underwood? Mr. Underwood: Yes I am. Mr. Robinson: Okay. I noticed you said earlier that you submitted this petition as an individual. Mr. Underwood: -Yes I did. Mr. Robinson: Not in your official capacity? Mr. Underwood: That is correct. Mr. Robinson: Your mailing address is 4 Sand Island Access Road ... that's your home address? 32 Mr. Underwood: No I believe that's my office address. Mr. Robinson: And your email address Ed.R.UnderwoodCchawaii.gov that's your official... Mr. Underwood: That's my ... yeah when I first submitted the petition I was gonna do it in my official capacity but after speaking with our Deputy Attorney Generals. They recommended that I just -do it in my individual capacity and that's why I want to make it clear that I'm doing this in my individual capacity: Mr. Robinson:. Okay so like Mr. Roth you took vacation time today to appear before the Ethics Board?. Mr. Underwood: That is correct. Mr. Robinson: Okay. Mr. Underwood: I worked that out with our... Susanne Case. Mr. Robinson: Okay. Those were the only questions I had Madame Chair. Ms. Kahakalau: Okay. Well don't we need a motion? Mr. Goodenow: I guess we need a motion. Ms. Kahakalau: Yes. Mr. Goodenow: Madame Chair. At this time I move that we dismiss the petition. Mr. Robinson: And I would second that.. Ms. Kahakalau: Alright. So we have any further discussion. Mr. Adams you're recusing yourself so just yeah for clarification' that happened the last time this agenda item was on there but,just so that people know that Mr. Adams has recused himself. Mr. Goodenow: As far as discussion ... I mean I'll start by saying that yeah there has 'been no evidence that Mr. Roth was in any way engaged or was a representative or doing anything for Mr. Murtagh and so absent that I don't see how the fair treatment provision really applies because he's not doing this for any personal benefit or anything .like that ... and I also believe right even if he were there in his official capacity as mentioned in the Charter provision ... there really is wide powers or discretion given to the prosecutor to make recommendations regarding crime. I don't think it really matters if 33 he had been there in his official capacity as far as the Board of Ethics is concerned. We're not here dealing with the rules of professional conduct for attorneys or anything like that but just the Ethics Code. The only thing that I really wanted to discuss is you know the way that ... 2-84 Conflicts of Interest is drafted it's all dealing. with financial interest right and whether there's some you know money to family or you know some financial interest and I just wanted to talk to the board about it if you know and thinking about maybe changes to the code. The thing of cases where you know attorney's sometimes may not have a financial interest ... they might ... right I mean ... in the sense that you know there could be a situation when ... I don't know what happens with Mr. Roth but you know there ... say community meetings ... Mr. Roth is well known to be really involved at the community level... right..: that's where he came from I mean ... that was his things and you have a community meeting and the people are upset you know these homeless people or whoever... they're committing a crime and they want some help and maybe Mr. Roth might give them some advice well post no trespassing signs or you know... and then these people ... do violate the law and then now he prosecutes them. You know there's... there is something there that now would he have to conflict out and is that a detriment to the Prosecutor's Office if he has to conflict out. Now ... this is kind of just hypothetical talk for something for us to think about because the current code only says financial interest it says nothing about this and even though I am a lawyer I mean I don't think it's our job to start looking at the Rules of Professional Conduct in this case because it's not what we're here for and I'm not saying that he did do anything wrong....I'm just kind of bringing that up for our discussion to think about because it's not only a financial situation where you have conflict. That really has nothing to do with you Mr. Roth ... that's more just talking about the issue, but to me it's clear I mean he had the right to comment on crime ... he wasn't doing it for his benefit ... he didn't receive anything out of it ... I don't think he was ... I mean you could say that accusing even indirectly someone of corruption isn't courteous, but given the fact that he's addressing a board at a public meeting ... he has you know ... and I appreciate the first amendment... you know he has a right to go and do this ... seems clear to me that there is no conflict with our code and I guess I'll leave it at that. 34 Ms. Kahakalau: Okay. Mr. Robinson. Mr. Robinson: If I may I just surprised that you took a vacation day and paid this out of your own pocket. I would've think if anything as a representative of the public and knowing that there may be something that you would've done it in your official, capacity. I would've thought that was just the appropriate way to do it so I understand you taking vacation time and paying it yourself but boy I mean look into something like that if you think is wrong. Mr. Roth: Thank you. Ms. Kahakalau: Yeah I looked at the minutes that were submitted by Mr. Underwood and I didn't see his name mentioned once you know so as far as the claim that there was you know a specific attack you know against Mr. Underwood which he is now an individual bringing forward I can't make that from any documents that have been presented ... I can't see that piece and I do also agree with my fellow members have said in terms of not seeing any violations of the specific citations that Mr. Underwood put into his petition but also in terms of the Code of Ethics in general. So ... I think we ... if there's any ... if there's no further discussion then I'm gonna call for the question and there's only three of us that are gonna be voting on this particular item because Mr. Adams has recused so all in favor of dismissing Petition No. 2016-20 say aye. Anybody opposed? So that motion is carried. Thank you very much. Mr. Roth: Thank you. Ms. Kahakalau: Thank you Mr. Underwood. Mr. Underwood: Okay thank you. Motion and Vote: Mr. Goodenow moved to dismiss the petition. Mr. Robinson seconded the motion. All members voted aye. b. Petition No. 2017-01 & 03: Review draft informal advisory opinion regarding a petition from Naomi O'Dell, 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 a Request for Quote (RFQ) for the Office of Housing & Community Development and the Department of Water Supply. 35 Ms. Kahakalau: Mr. Adams: Ms. Kahakalau: Mr. Adams: Ms. Kahakalau: Mr. Adams: Ms. Kahakalau: Mr. Goodenow: We have already dealt with petition number 20 ... well no. We're gonna officially talk about that now. Which one? 2017-01 & 03. We still have to... Yeah okay. So next agenda item is 2017-01 and 03. I move approval of the opinion. Do we have a second of an approval for that opinion? So moved. Ms. Kahakalau: Do we have any discussion in regards to that informal advisory opinion? Yes ... no? Alright then I call for the question all in favor say aye. Anybody opposed? No ... that motion is carried. Thank you. Motion and Vote: Mr. Adams moved to approve informal advisory opinion. Mr. Goodenow seconded the motion: All members voted aye. C. Petition No. 2017-02: Review draft informal advisory opinion from a County officer or employee, to determine if there would be a conflict of interest with his position in the Finance Department and his retirement stock holdings with the Bank that the County of Hawaii has accounts with. (Closed hearing requested) Ms. Kahakalau: Do we need to do anything as far closing anything in order to deal with the informal advisory opinion? Mr. Yoshimoto: Madame Chair only if we're gonna be discussing in. detail any material changes. If it's not, then we're fine' in open session. Ms. Kahakalau: Do I hear a motion? Mr. Goodenow: So moved. Mr. Robinson: Second.. Ms. Kahakalau: Second alright. Any discussion in regards to that ... that is ... that needs to be not public? 36 Mr. Adams: No. I don't think it's a closed hearing issue. Ms. Kahakalau: Alright. Mr. Adams: All I would comment is that in the conclusion of law. I would've been happier if it had included the portion... because we were dealing with a particular type of leader ... if we had included the ... been more specific in the phrasing about the inability to: disqualify because I think that was the Kruk's of the decision making here. Mr. Yoshimoto: I think that's critical actually board member Adams. So why don't I change that and we'll have this for review one more time. Mr. Goodenow: Thank you. Ms. Kahakalau: Alright so we're just going to hold that for... Mr. Goodenow: Move to continue... Mr. Yoshimoto: We have a couple of options ...let me just throw it out there. I could make the changes, circulate it ... well we need to do this in a meeting actually. We can't have a meeting without any ... yeah -we'd have to continue it. Ms. Kahakalau: Okay. We have a motion to continue? Mr. Goodenow: I so move. Mr. Adams: ISecond. Ms. Kahakalau: So we have a second. Any further discuss? Mr. Adams: So we're in the middle of a motion to approve this so we're going to table it ... it's gonna come back ... we won't have .to move again... Mr. Goodenow: Right. Mr. Adams: Right. We just have to amend ... we'11 move to amend and then we'll. continue with the other motion. Mr. Yoshimoto: Correct. Mr. Adams: Okay. 37 Mr. Yoshimoto: Right so the motion to continue is made by Mr. Goodenow. That takes precedence and then I'll redraft this opinion ... you have another opinion to look at ... so actually we don't need to amend anything. You'll have something else to consider in light of your comments. Mr. Adams: What happens to the first motion? Mr. Yoshimoto: That motion is still out there ... right. Mr. Adams:. Okay. Mr. Goodenow: Yeah ... but..: Mr. Yoshimoto: I see what you're saying... you're saying... Mr. Goodenow: Robert's Rules. Mr. Yoshimoto: Okay ... why don't you withdraw that motion then yeah? Mr. Goodenow: Why don't we just to make it easy ... what don't you withdraw the motion and we just continue the agenda item. Mr. Adams: That was your motion so you... Mr. Goodenow: Oh I moved to approve? I withdraw it then. Mr. Adams: Friendly second I say. Mr. Goodenow: Thank you. Ms. Kahakalau: So now we're just voting and I'm assuming we're voting.... Mr. Adams: The second was Rick so the second agrees to that? Mr. Robinson:. The second agrees. Ms. Kahakalau: And we're voting on continuing right? All in favor of continuing this motion say aye. Any opposed? Alright so that motion is continued. Motion and Vote: Mr. Goodenow moved to continue review of informal advisory opinion. Mr. Adams seconded the motion. All members voted aye. Mr. Adams: I hadn't had an opportunity to speak in a while ... I needed to do something. 38 Ms. Kahakalau: That's fine. Actually that was a good ... you know an important piece because I agree with you that was actually the Kruk's right in a way of the request that came before us. Okay so we are now going into executive session. Mr. Adams: Actually Madame Chair I move we in fact do go into executive session. - Motion and Vote: Mr. Adams moved to go into executive session. Mr. Goodenow seconded the motion. All members voted aye. 11: 39 a.m. The Board moved into executive session. 11:40 a.m. The Board took a lunch recess. 12: 04 p.m. The Board returned from lunch recess.. 12:45 p.m. The Board returned into regular session: 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of December 6, 2016. Ms. Kahakalau: So we're out of executive session and we reviewed the executive session minutes during that executive session., Do I have a motion in regards to? Mr. Adams: I would move we accept the executive session minutes as reviewed. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye ... any opposed? No. Motion and Vote: Mr. Adams moved to approve the executive session minutes. Mr. Goodenow seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-911(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Ms. Kahakalau: As far as the confidential financial disclosure forms, we reviewed forty-seven and we accepted... Ms. Hirayama: Forty-two. 39 Ms. Kahakalau: Ms. Hirayama: Ms. Kahakalau: Mr. Adams: Forty-two ... so. Five were returned. Five were returned. Okay. And they were? Ms. Kahakalau: And they were ... the five that were returned number. If you could give us the numbers please. Ms. Hirayama: 12, 17, 19, 23 and 44. Ms. Kahakalau: Thank you. Mr. Adams: I would move that we accept the forty-two that were reviewed and accepted. Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye ... motion carried. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure forms. Mr. Goodenow seconded the motion. All, members voted aye. Ms. Kahakalau: We already have discussed number seven. Is there any further discussions in regards to that item? 8. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII Mr. Adams: I have nothing at this time. Ms. Kahakalau: Thank you Mr. Adams. 9. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. Ms. Kahakalau: Right now we're scheduled for March 15 which is a....Tuesday? Mr. Adams: Third Wednesday. Ms. Kahakalau: Third Wednesday. Mr. Adams: We're looking at April right? 40 Mr. Robinson: Are we gonna go back to Wednesday? Mr. Goodenow: Well ... it's just Campaign Spending wasn't meeting that Wednesday and we had some problem of the Tuesday. Mr. Robinson: Okay. Mr. Goodenow: I can't remember what it was. Ms. Kahakalau: So we're sticking with March 15th then? Mr. Adams: 15th is great. Mr. Goodenow: April.... Mr. Adams: April would be ... this when we would talk about April. Mr. Goodenow: That would normally be the 12th but I will be in Honolulu April 12th for the Campaign Spending Commission. Mr. Adams: So the 11th is ... what we have been doing ... the second Tuesday then? Mr. Goodenow: Yeah that would work for me. Mr. Robinson: Some reason I wrote ethics on a Monday the 10th Mr. Goodenow: I have court in Waimea on April 10th at 10 a.m. Mr. Adams: I guess the question we were concerned about in April is are we gonna be booted out of here because of budget. I think that's what we talked about the last time. Mr. Goodenow: Right. Ms. Hirayama: We have Council Committee meetings on the 4th and 51h and then Finance meetings 11th, 12th and 13th. Mr. Adams: So... Mr. Robinson: That's why I had written the 10th Mr. Adams: I guess so. Mr. Goodenow: Right. 41 Ms. Hirayama: So it would either be the 6th which is a Thursday or the 10th which is a Monday. Mr. Goodenow: I've got courtin Waimea but I probably could appear by phone or something. So the 6th is impossible for me. I have like eight cases. Ms. Kahakalau: Yeah I have something also on that day. Mr. Goodenow: The 10th all I have all day is that 10 O'clock court in Waimea so let me try and get out of it or appear by phone. If I appear by phone ... I'll just be you know ten minutes late. Unless you all want to head up to Waimea for the meeting. Mr. Adams: Well I was thinking but... Ms. Kahakalau: The 10th still works for me ... I gonna go to Europe at the end of that week but.... Mr. Goodenow: Leave it at the 10th Mr. Adams: Okay. Ms. Kahakalau: Okay. Mr. Goodenow: I'll do what I can do. Ms. Kahakalau: April 10th Mr. Adams: Do we actually need to move that then? We need to move... Mr. Goodenow: I move to suspend the rules to allow for the meeting not on the 2°d Wednesday of the month. Mr. Adams: In the month of April. Mr. Goodenow: In April. Mr. Adams: Right. Second. Ms. Kahakalau: Any discussion? Mr. Robinson: There was a suspend the rules... Ms. Kahakalau: The rules. Mr. Goodenow: The rules to allow us to change. 42 Ms. Kahakalau: It's seconded. Any discussions? All in favor say aye. Motion and Vote: Mr. Goodenow moved to suspend the rule concerning Wednesday meeting days. Mr. Robinson seconded the motion. All members voted aye. 10. ANNOUNCEMENTS Ms. Kahakalau: The announcements are that the next monthly meeting is going to be scheduled for March 15, 2017 at 10:00 at the Hawaii County Council Building but we will find out what the specific location is going to be. 11. ADJOURNMENT Ms. Kahakalau adjourned the meeting at 12:58 p.m. Respectfully submitted: &" �� Q--, I Emily Hira a a, Sec et ry 43