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HomeMy WebLinkAbout11-13-18 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Tuesday, November 13, 2018 10:05 a.m. to 11:40 a.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 Rick Robinson, Member Nan Sumner -Mack, Member J Yoshimoto, Deputy Corporation Counsel Maria Pagala, Secretary 1. CALL TO ORDER (10:05 a.m.) Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Robinson: Aloha kakahiaka kakou! I would like to call the meeting for the Board of Ethics, County of Hawaii for November 13 to order. And as always, we're going to start with introductions. My name is Dr. Ku Kahakalau and I'm the Chair of the Hawai'i Island Board of Ethics. Ken Goodenow. Nan Sumner -Mack. And Rick Robinson. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:05 a.m.) 4. NEW BUSINESS (10:05 a.m.) 5. UNFINISHED BUSINESS (10:05 a.m.) Ms. Kahakalau: Thank you are there any statements from the public on agenda items? No...okay...hearing none, we will move on to new business but there is no new business...there's also no unfinished business so we are going to go right into executive session unless somebody would like to make any changes there. Mr. Goodenow: Just on that thought...I mean why don't we...if it would be alright just move on right to number 7...? 1 Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Yoshimoto: Ms. Kahakalau: And do the executive session at the end? Yeah after that. Okay...is this a friendly amendment to the agenda that we don't have to vote on or should we vote on it? You have both options...if you want to be formal you can amend the agenda provided there are no objections from the public or members. Well I will ask the public...are there any objections to amending the agenda and moving discussion regarding amendments to the rules of practice and procedure of the board of ethics of the County of Hawaii to now and then do our executive session afterwards? Public Member: Quite the opposite...appreciate it. Ms. Kahakalau: Alright wonderful and I'm assuming our board members are also okay...so let's do that...we are going to number 7. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII. (10:06 a.m.) Ms. Kahakalau: And we do have a correspondence that's dated September 24, 2018 from our Vice -Chair Goodenow...maybe if you would like to take over from here thank you. Mr. Goodenow: I don't know should we move to file? Mr. Yoshimoto: Yes. Ms. Kahakalau: Yes. Mr. Goodenow: I move to file the item number 7. a. Ms. Kahakalau: Do I hear a second. Ms. Sumner -Mack: Second. Ms. Kahakalau: Any discussion? Okay...all in favor say aye. Okay so that was just carried. Mr. Goodenow: I guess now we have a discussion on this and I just oh I forgot my notes right. Usually I have a cheat sheet here. Yeah...I'm sorry I 2 brought the wrong file...somebody's divorce paper work. If I ramble a bit...excuse me but I'm going to try and go start with this. You know if you look at Rule 5 and in particular 5.3. It says...the Board in resolution may authorize a three-member committee, the Board as a whole, a single member of the Board or the Board's staff, to conduct all or part of an investigation or hold an investigatory hearing...so what you have in our rules anyway...I wouldn't say it's been our practice...but in our rules...I mean technically you could by resolution say oh we want Ku to go investigate and look at all the documents and ask witnesses. And you would have all these powers. You could subpoena someone and you know in a system like Honolulu where they have a staff and an attorney. You know maybe that approach is good. But that's kind of like a philosophical difference from what we have in paper and in comparison to our practice which is very similar to what Maui actually does in its rules. And I like Maui's rules in that it...I thought the language was really clear and easy and what the process is...you know I handed out at the last meeting that we had...a little flow chart. There was Hawai'i County and Maui. Now that flow chart I brought copies but of course I don't have them with me. If you still have that...you look at that. In Maui you just have the...so the chair and the legal counsel review the complaintive...a complaint they call it and they make recommendations on how to process it. That goes to the full board...they might say there's not enough here...but at the first hearing they do that...then they go to an informal hearing. Which is kind of very similar to what I would think of is how a...in a settlement conference with a judge right. Okay what are you gonna say at the hearing right. Well we...look we have this paper its showing this and oh department what are you gonna say? It's very informal and we ask questions. And this has come up with the guy that said he didn't have the right to cross examine. Well that's still an informal type of stage. And then Maui if...if they don't comply they do an informal advisory opinion...they don't comply...then it can go to a formal hearing. That's pretty much the basic structure. That's basically I think what we do. When you read our rules...I think it's a whole different philosophy. The way our rules are written we have much more of an investigatory function. I mean maybe we should get a gold badge for Ku here and she could go to the department and say...ethics bureau I want to see all these documents. Maui is much more you act in an adjudicatory function where it's the plaintiff who brings the complaint versus the defendant whoever it is...the employee say...okay. That whole approach when you...you there is some investigatory aspects to that when you're in the informal hearing. Oh what would you say? What are you doing...right? You get Ms. Kahakalau: Mr. Robinson: information. But that's really in preparation for having a real contested hearing right. We come up with an informal advisory opinion...it doesn't mean anything right? You gotta go to the contested hearing to really find someone if they don't accept it right? So you look at those two approaches I just think the Maui approach is what a board of our...in the way we are in charter that's very appropriate. The board does everything as a whole. There's no special investigation type...now but that's philosophically. I think if we look back at like the last kind of thing we had. There was a complaint right and so what if in that scenario we said it's confidential cause it deals possibly with personnel matters so we will do this all behind...in closed session. And then we appoint one person maybe Mr. Yoshimoto our...probably not though cause he's a county employee...it would probably be one of us maybe. And that person can go and do all these things now you can't force an outside person to swear under oath but what are the departments going to do when you walk in there and what's corp. counsel going to say...oh you gotta say under oath you know ask these questions...answer these questions. Maybe you want that but I just think...you know it could be abused as well...I don't wanna change my name to Ken Star Goodenow. Sorry the joke didn't come across good cause I had it my notes how to present this. But this is the key philosophical question that we're looking at I think when we start this discussion. Personally if it were me...I like Maui's rules...I would change three things...I made a list of them and we can talk about them later. But the way it reads is it's really we are in the role of a judge...we do not help the plaintiff prove anything. It's where...I'm sorry the petitioner...the petitioner would come and make their case. And again when we do the informal part we can learn stuff but that doesn't mean anything cause when we're sitting in a formal hearing...it's all new...it's only the evidence and we just hear it as it comes and we make our ruling. That I think is an appropriate role for us and I think we should take the Hawaii County rules...the portion that deals with investigation and their whole procedure and put in the Maui language with a few alterations that I can talk about. I'll leave it at that for now. Yes, please. You know I'm glad you brought this up. Let's go back to the lady that we had that came in and filed the petition...against the county for hiring this person yeah I forget which name that was but you remember the one that yeah and then we found out that there's 14 special contracts that the Mayor has and you know all of this but I really felt for her in her presentation because she was 4 Mr. Goodenow: Mr. Robinson: concerned...she brought her concern to the ethics board...she was concerned about it being an ethics violation...and yet she's up against the County defending itself...she's an employee of the County...it's the County defending itself and the County has legal counsel and the presentation dealt with her rights under County law as well as the requirements of County law so I felt like she was like a deer in the headlights...so to speak. And I would think more like Kenneth Bueller and not Kenneth Star but anyway. I couldn't resist. So if you have what you're proposing...we in turn would have appointed an individual to be the I guess the investigator of this and it could have been one of our ethics board members who would have sat with her...done the investigation there...done the investigation with the County and then take that information and assemble it and then bring it back to the ethics board for review rather than conduct this hearing in public where she's like the deer in the headlights with the County on the other side. Is that kind of the scenario that you see happening, Ken? Well I think under our current rules...it's very flexible and very broad. You know...in that situation that you're talking about. I don't say I would agree that it would be a good thing that you want...that. Because to me...you know we're clearly focused on ethics and that was kind of broadening the scope in my opinion. You know and so I was concerned about that. But I'd be really concerned if we voted to have an investigator and do all that but it's a policy call. I may not agree...but I think it's legitimate discussion and I guess it's up to the board and you know to vote their way...at this point I like Maui...I think it's kind of how we envisioned what we do. But if you wanted to do that and it would be...you know we'd have to have a resolution to initiate an investigation and I think we'd have to...but I foresee difficulties with the scope right. You ask to see all these documents well what if there's confidentiality concerns like its personnel related. Then what is corp. counsel gonna say...hmm do you turn them over or not? It is in the...and then is there a conflict and I mean I just...like I said if this were Honolulu...we had a full time staff and an attorney who could actually do more of it...ah maybe...but right now really all we have is corp. counsel...I just see that being very difficult. Well let's say if we could then take the Maui rules and apply them to the case we had with the lady that brought the complaint of ethics against the County and how would you see that have worked differently in that... Mr. Goodenow: I think it would have been exactly the same... 5 Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Been exactly the same. Cause we, in our practice, kind of follow the Maui procedure right? Ah hmmm. And we did an informal hearing...we got to ask questions...we ask for documents...yeah very good point. That pretty much would be what would happen. So you don't really see there being a difference in the way that we conduct it...business...in that instance. But instead it would limit our ability to appoint a special investigator... Yeah. To go in and be Mr. Mueller and do all the...cause it would be very expensive to. Yeah... absolutely. I understand. Any other comments from the Members? Since I've been here, we have to my knowledge we've never really done this as far as quoting to form a resolution and then authorizing a...a committee or the...any of those things that are in 5 through 8. And I also like the practice...our past practice...which I think was definitely more in that adjudicatory function you know versus an investigatory function. So I'm fine...what I'm a little unclear on is in your chart there maybe I don't have the updated one but it says no comparable provision for Maui. So does that mean that this whole 5 through 8 just isn't in there? Or am I not... Which one are you on? I'm on 5.3 a. 5.3 a. Which I thought was... 6 Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Robinson: Oh yeah. There's no comparable provision cause they don't have an investigation...it's like the board...you come to the board...you have your hearings. That's how it works. So just to be clear for myself. Is then what we are recommending is that to delete 5 through 8...is that what your recommendation is? My recommendation is that our language to me is not nearly as clear. I think we should just take out all of our Big Island provisions and insert Maui. And with a few things and I could go over those now and hopefully I remember them all but...yeah. Okay. No I just wanted to be clear. And you know we kinda did that with an earlier chapter...that relates to this because that earlier chapter had...it just flows better to me. When I read the Maui language, I thought the feel for a member of the public just reading it would be this is an informal process and it seemed really honest to what actually happens. I like that about Maui. Okay. Any other points of discussion regards to this specific item here? Yeah on the investigation...investigatory hearings which is what we do kind of out here in public with all the information presented. My only concern Ken and I don't know how we address this in our rules...is that the person who initiates the complaint of ethics violation normally it's against a county department or a person within the county and they have...they don't have any counsel...whereas the county has their own counsel. So the county department is showing up and they've been able to talk to corp. counsel and they've been able to get review. Whereas this person sitting at a desk somewhere and says oh I think there's an ethics violation here and they don't have any support or they don't have anybody that is advising them as to the roles and regulations of the county and how they can file a complaint so I've always been concerned that they don't have the support that they...that they...I don't know if you could say should or if they would want to go out and hire counsel. That would be a very expensive proposition is they hired counsel because the counsel would have to be informed about the operation of the county as well as HRS it would have to start looking into the county rules and regulations. And so I've always felt...how do you help them? You'd normally have public defenders for people that are in a criminal case but in this case where it's just an issuant complaint. How do they get support? 7 Mr. Goodenow: Well I think that's a very valid concern and in fact I think you know that's why we have the informal hearing. You know in a lot of administrative hearing say that the department of human services or whatever when you have a contested case hearing...It is okay we're gonna have the hearing...we'll issue the subpoenas and our rules provide for this right...you apply for a subpoena. Some of the language I wanted to recommend changing a little from the Maui rule...adding something in but you'll say...okay I want these documents...I'm gonna file a subpoena and you know review them in advance...it's subpoena duces tecum and the hearing officer or in this case...the board would authorize the subpoenas. But you're right that's very legalistic right? So I think the theory behind this informal hearing really is to help people with that. And I guess it's incumbent on us at this point unless we want to add something to say okay this is what you're saying...what do you mean? Right and okay what exactly happened and then we ask the department well what...how do you respond? Oh do you have the document for that...can we see these documents? That's why I think we have this informal process right to do that. Now if it doesn't work...cause the informal process we could say based on what we've heard. It's not like we've heard all of the evidence. It's just based on our informal hearing. We think there is a probable cause to believe a violation took place and this is what action we want to see right...correct it. At that point...if the person doesn't do what we ask them to do...or they don't cooperate...let's say they came...now I'm not showing you those documents. What if the department says that's not under federal regulations...we could never show you those documents. Well at that point...that's when you go to the formal hearing. Cause the formal hearing addresses all of those concerns but it's very legalistic and hard for an individual quite frankly you're right...they would need an attorney I think for a formal contested hearing. I don't know how to get around that but that's why I think they have that informal and we take on the role as to making sure a pro se person like that is treated fairly and documents are provided...cause a person might not even know to ask for the documents right? They might think they couldn't get them. You know they don't know. Ms. Sumner -Mack I'd like to put in a couple things if you don't mind. I mean you're dealing largely with policy here but I'm concerned if we replace...by the way I appreciate your putting it out in this format cause he's got our regulation and Honolulu and Maui and Kauai right together so you can compare easily so that's great...must have worked hard on that. Anyway but one thing that we have in our in e. we have...that the person whose appearance is requested 8 Mr. Goodenow: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: may be represented by counsel or a member of an employee organization if the person is a member of such an organization. I don't see that in the Maui text and I think it's important to allow for that. Very good comment thank you. Another thing I just wanna say if you're gonna replace the whole language with the Maui...I think one thing that is very good in Maui is that...it says (b) if the board votes to hold the informal hearing in executive session, the respondent may request an open hearing, in which case an open hearing shall be held. I think that might be a wise provision if somebody wants to have it out in the open that we should allow that. Yeah. And we've always given people who come here an option for open or closed...either way. You know when they come that's the first question that we ask you know do you want this to be a closed hearing and we've always honored that request and if it should come in executive session it would be kind of a closed hearing anyway because...executive session indicates that nobody else can be in here so I'm not quite sure...I wouldn't even put that...that's something that they definitely have the prerogative of doing. Yeah so I have a question to counsel. So let's say I'm a citizen and I'm concerned about a specific county employee doing something that I think is unethical right cause the big part here is we're only talking about unethical not illegal behavior right because illegal will take you to a whole other...another level you know and then we're talking court and then we're talking you know coming with your attorney or... We always have the option to refer like oh prosecutor right. Well that could happen yes. But let's say it's an unethical thing but I don't know anything about the Board of Ethics...I've never heard of it you know. Can I call your office and just ask simple questions as to how the procedure works...what you would recommend for me...is that something that is a practice or not. I know that, I know that's our policy...we usually...or our practice...this board normally acts like that...they'll give permission for the respondent or whoever to request and have their request honored. But somebody who comes in and doesn't know that that's our policy might come in and then be blindsided 9 Ms. Kahakalau: Mr. Yoshimoto: Mr. Robinson: Mr. Goodenow: because they could have had an open hearing and they didn't know to ask for it. I just don't ever recall having an informal hearing in an executive session...that I know of. But my question is basically...what if I have questions about the procedure? Is your office available to me in terms of asking questions that will clarify the procedure and you know ask for recommendations as to how I need to prepare appropriately for the informal and then as if it would go to a formal hearing for the formal hearing as well. So if there's an inquiry or question from the public as far as how the process happens here...we provide that information to the public...in terms of recommendations we don't advise them as what to do...but we give them all the information that we have available to us...as far as the process...filing the petition...having the hearing day. And the letter that we send to the petitioner also includes information as far as how our process works. And whether they want to have an open or closed hearing so. Yeah we provide them with all that information. You know I want to go back to something that you brought up and that was representation by union. I know those 10 years I did on the Civil Service Commission here for the County...that every time we got an appeal there was usually union representative there. Particularly with SHOPO but also with other...and they were very active in participating provide advice. I don't think that County employees get that kind of service from the union if they have an ethics complaint...do they? I mean civil service is one thing but ethics is... Could they go to the union and say...hey can you assist me here I want to file an ethics complaint. I don't know. Well, I think it will be up to the union if they wanted to do it or not. I mean...this other county has it or we have it. I've never seen a union person come to an ethics meeting but what if someone it did involve indirectly because you know you could terminate someone. We don't but our recommendation we send a report to the administrative agency. So it's possible but I don't know if the union would do it right. It's not a condition of employment right. It's not like a...is it disciplinary or not? At that point it may not be disciplinary because it's only an informal hearing right...it's not a contested hearing. It's a good question. I don't see any harm in putting it in... but then again...is it misleading to someone...I'm calling my union why aren't you here. That's a good point we should think about. 10 Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Mr. Yoshimoto: I'm just thinking about that poor lady who came in all by herself to face us. Totally new to the process. You know I felt for her and maybe I don't know what the union person would do except maybe come and observe and that might be important to the petitioner...to have somebody sitting in the audience they knew and could be called upon to verify information if necessary. I don't know. That's just my feeling I think we ought to mention unions...if they don't want to get involved...that's not our problem. And I agree with you. But I don't know that that's something that they wouldn't have the right automatically. We don't check whose specifically sitting in the audience and how they are related to...in whatever way to the person who comes and files a petition. So I think and even people who come up with the petitioner right that they can bring up more than one person as they come up. Just as a support team whatever. I don't think we would ever deny them bringing whoever they needed to bring or whoever they would like to bring as they present their petition to the board. At least at the informal hearing stage for sure right? I mean that's very informal. But if it were an actual contested hearing...you know I think that maybe they would be entitled...you know I don't know the answer to that. But we're only talking about the informal hearing right now. Yeah. It's a suggestion to try to make it easier for a petitioner...more comfortable...and even just having it our rules might indicate the fact that we're all good people with goodwill and so on and we're not gonna cut anybody off. But in other types of hearings very often they do check who's in the audience and send them out if they have anything to do with the case because they're not allowed to testify...they're not allowed to hear other testimony. You know that may be a factor in whether someone comes forth with a complaint. We could ask the union too. We could send them a letter and say...you have an opinion on this? Or we could ask corp. counsel to do an analysis on the legal aspects of when you're entitled to representation. Listening to the discussion I think it's a good idea to provide as many options as possible so I think I agree with Nan that if that's included there then that just basically provides further information 11 Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: and maybe some level of...what's the word?...not comfort but they know that this is an option they have available to them. So to me I think it's a great idea. And if the union wants to say no...well that's their business. Alright I would support that. You know if I could. Going back to this poor lady and I kind of feel strange that we make her case to the call celebrer here but there was a lot of issues in that...that I saw. And one was the fact that she was not provided information ahead of time. It was like she got it here at the...when we're sitting here doing our informal hearing. And you know I don't know maybe she didn't know she could request or maybe...I think she had requested but had not been given until we get in here...and it really that's a concern and I think our rules do not provide any kind of rules or evidence or anything like that...do they? Oh well for the informal hearing right the rules of evidence don't apply...for the contested case hearing right there are those issues but...maybe if we put in a section...maybe not in this...the complaint section maybe in general section at the beginning. Something about what the board shall provide to them. I mean that gets dangerous cause then we're obligated but you know so be it. That might be best. And it maybe the way the rule could read is that the board shall approve a standard letter to all persons filing a complaint which shall detail the... And then of course we gotta do the latter but then that could you know you don't want to put corp. counsel on the hook. And one thing I thought of adding there's a provision in another... something else where they put in quite clearly that for the contested case hearing...at any time we do not give legal advice right? Yeah. And so we don't want...we gotta be very careful right about that but I think if we draft it and approve it and its automatic that this is what gets sent. You know we could do that put that in. I would be open to that. Why not just have our rules as they are? I don't think we need to make up a new letter...we state it clearly in our rules of procedure then...and we give it to them and they have it. Right but I mean...I mean there are certain...it could be in the rule. But what are we really wanting corp. counsel to provide to 12 Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Mr. Robinson: someone who comes forward...of course they get the notice of the hearing...right? I think they get a copy of the rules and I think the Maui rules are clear enough I would understand. Right...it says you have an informal hearing...it's not the real thing...it's kind of like informal...you get an opinion as to how the board's gonna rule and you can have a real trial so to speak. Not a trial of course but a real hearing...contested hearing. So that's true but do we wanna provide more than that? I'm just suggesting that in addition to the Maui rules that we put in as e. that provides for... Oh...right. On that point I agree. That's all I'm suggesting. Okay. I think that's fine and I agree if the rules are readable. You know if a layman can read it and feel comfortable and feel clear on how this is gonna go down kind of thing. Then I think we don't need to provide anything additional if it becomes a little bit legalese and further more too long. If I'm gonna get a packet with something that's however thick it is you that's already gonna kind of turn me off or certainly scare me in saying oh my goodness you know I gotta not only just read and figure it out but also kind of act and move according to all of these things. I think that's a little...can be a little bit overwhelming for a citizen you know who just wants to do the right thing by pointing out that you know he...in his or her opinion there's some ethical violation by some county employee. Getting...a book kind of thrown at them I would be a little bit concerned about that. I do think that they should get the rules though and I do say this is why I'm not writing it because...I mean I'm gonna take all the substantive stuff from all the minutes and where we made changes I want to put together a document but then it's going to our special review of Nan and the Judge to work on that aspect. Yes. I'll leave that to them. Could I ask a question of process from the corp. counsel side. Someone submits an ethics complaint do we send them anything or we just let them know that they are scheduled for a certain day or do we send them the practices or anything like that. 13 Mr. Yoshimoto: Mr. Goodenow: Ms. Sumner -Mack: Mr. Yoshimoto: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Mr. Yoshimoto: We send them a letter notifying them of the date of the hearing, the time...location. I think we provide them a link to the rules. Because they're available on the website right. And then we also inform them...I was just looking for the sample letter that we send out...but I believe we also let them know about the options of having the initial hearing, the informal hearing, and the formal hearing...those kind of processes right? We had talked about that remember I think we did... Right. What if somebody isn't computer literate? Well yeah then they're free to contact our office and we would send them a copy of the rules if they made that request. For that representation by the union that's done with kind of consensus I'm gonna add that. On this issue though...are we going to add anything about what corp. counsel does...is part of the processing of the complaint. I mean there is something in the earlier section but do we want to add something about your options for a hearing. I suggest we don't do that now. We look how it looks in the end and if it looks clear well you know. And we can always do that as our practice without it being in the rules. Which it already is right I mean it's already in practice. It's already something that's already being done automatic by corp. counsel. I won't put that in the draft. Is there anything else about that you would like to address as far as the draft that I'm coming out with which is primarily Maui. With that one change and then I had a couple of changes too. Mine were simply wow the Maui code talks about the power to have subpoenas issued. I think it should be very clear to a member of the public that if they're going to a contested hearing right...they can ask for a subpoena and as long as it's timely and appropriate...the subpoena will be issued. That means if I'm a member of the public I can be sure that this other employee that's part of my case or witness or whatever or a member of the public that was in line behind me who heard the whole thing. I can insure that they're gonna show up right through the subpoena. So you look concerned... Oh no no...I'm not. Along that path right I just found the letter that we sent out. So we notify the petitioners...you know we acknowledge receipt of their petition. Date and time location of 14 Mr. Goodenow: Ms. Kahakalau: the meeting. We also state at the initial review the board will determine how it will proceed and whether any further hearings are necessary. The board may render decision based on the information it receives at the initial review or it may request additional information and schedule informal or formal hearing a future date. And we provide them with the rules. Along those lines though...if you want to change the procedure...as far as how the board handles these petitions. What I'm basically saying is maybe the initial hearing then should be just like a pre -hearing right. What do you need? Do you need to subpoena any witnesses, blah, blah, blah right? If that's the case then that's fine but we should spell that out as an expectation of that's what we're going to do cause right now what we've done as far as a practice is concerned is that if the board has enough information at the initial review we go ahead and have the hearing and we get it resolved that day right? Well right and that's correct. And I think that would still continue under these rules. You're not entitled to a subpoena for the informal advisory opinion. That's when we say...hey come talk and then you know and they say well we need these documents. Okay well continue the informal hearing...we're going to ask the department. But the minute...and if we say well no you're not entitled to those documents its irrelevant or whatever. Well then they can say I want a contested hearing right. And they can go subpoena them and we'll go through this process. I think we could do the same thing the first hearing could still be like informal hearing right. If they say we need more people will we continue it...I think the language is already in our latter that's... The only thing about subpoenas though I think should put in language for the contested hearing section that it needs to be timely. You can't come in 48 hours before the date of the hearing and say I want subpoenas for these 5 people and we gotta issue them and have the chair sign them or something. I think we gotta put something about that process. Most state agencies have those provisions. I'm just going to add that and then the other thing was... What was it? Well can always come back on this point at the next meeting...just say by the way this was one more change. Any other changes? Anyone else would like to suggest? And again the language can be worked on subsequently the... Yeah. I think that if we have an opportunity now to kind of see the revisions as you suggested them. I think we would have a pretty good base to start with you know and use that for our next time discussions. So basically incorporating all the things that were already discussed...that were discussed today and basically 15 Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Yoshimoto: Ms. Kahakalau: Mr. Goodenow: Mr. Yoshimoto: creating a new Hawaii Island that's primarily based on some of the Maui content but that's not a problem. And then for us to have a chance to read through it one more time just for the flow kind of. And if there are any other concerns or questions you know that we can go through that and then from there on pass it over Member Sumner -Mack and Judge Wiseman for them to kind of start going through the more specific or more fine tuning and wordsmithing, etc. That's absolutely right. The only thing I would add is we still have one more of these comparison charts to do. And so we'll do that for next time I guess. I should have brought the thing with me. Wait a minute...we're not finished with 5 yet. No we're not. And so we got maybe...sorry to jump the gun but I'll tell you what...I think we have a goal to do this by the end of the year. So what I'd like to suggest is we'll do both of those things. Hopefully I can get it together at the time for you to get it. So I'll do 1 through 7 and the only other thing is the last bit 8 and 9 right. So I'll do 1 through 7. I'll go through all minutes and I'll put everything together. This is where we add on those. We'll just do the other part separately and maybe at that point we could hand it off to corp. counsel for their review and for our 2 wordsmiths to do their review. Could I ask one thing? In doing this...I got the packet in the mail. I would really like to get it electronically. Can I do that legally Sunshine Law? If you send it to corp. counsel... There's nothing wrong with sending this...I make no comments. All it is a comparison chart. And all I'm gonna send is what's been in our minutes right. It's no comment by me. It's just this is what it is. Would there be any problem with me distributing? Yeah it'd be cleaner to send it to us right? Yeah. Yeah. Right. And we can send it forward as part of the next agenda. 16 Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Ms. Kahakalau: Mr. Yoshimoto: Ms. Kahakalau: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: But it would only be with the packet. I couldn't send it to him earlier. Could you send it to them electronically and could corp. counsel then send it to us electronically? That would be 7 days before...6 days before. I enjoy the tactile function of holding something in my hand but reviewing things like that...I like to do it on the computer screen. Oh absolutely I agree with that. So if you could get it through Maria and then she will forward it to us in the electronic version as well as in the packet for those who read on the plane or whatever. So that works right? And of course right there's no discussion via email. Yes. We'll be good. The only thing is I'm going to attempt to do this. You know I have a big administrative hearing before the department of human services on the 20th...I've got...I'm telling you. Plus the divorce you're working on. Yes...a few. We appreciate your work on this most definitely. Back to rule 5...sorry. No, no, no I wanted to hear...clarify what you just said. 1 to 7 we're going to discuss when? Well we already discussed 1 through 7. You weren't here for all of it maybe, right. We did what we did today for rule 5 and we noted things we wanted added or amended. So I'm gonna go back to all the minutes to make sure my notes are perfectly correct and I'm gonna take out everything we did and I'm gonna come up with draft version of the rules and I'll put it in ramseyer format right...probably. The underscore is added, the bracket is deleted and it will look like that. The original plan was to do 8 and 9 first 17 and then do that at the subsequent meeting but to move this along I'm gonna do 1 through 7 like that. 8 and 9 which we haven't discussed yet...I'm gonna do this comparison chart and then we can orally maybe discuss what we're doing with 8 and 9 and then move that forward to corp. counsel for their review and to you guys for you to look at the stylistic. Even things like diacritical marks if you know...what it should look like and how it should read you know consistently the terms and... And then you guys could...hopefully that would be the December meeting right. And then for the January or we could even say the February meeting to give you more time to come back and have a discussion on that. Ms. Kahakalau: On the final. Mr. Goodenow: And that would be kind of...we'll hear corp. counsel's...we'll hear your recommendations. We'll vote on a final draft. Mr. Robinson: Could we give ourselves a deadline and say in the February meeting we'll vote on a final draft. Mr. Goodenow: Given our track record on this, we should but... Mr. Robinson: I'd like to see that. Ms. Kahakalau: I'd like to do that too. I'd like to suggest that we note that for the purpose of the amendments to the rules of practice and procedures of the board of ethics that we calendar February as our deadline to finalize the new version of the rules of practice and procedures. And I do thank everybody for helping with this. Certainly our Vice Chair but also Corp. Counsel and Maria and our editing committee...really appreciated. It's really best practice you know to regularly review things like these rules of practice and procedure and I'm very happy that we are engaging...it is an additional task to our regular job and so I'm grateful that we didn't have any new or old business which is also exciting in terms of keeping up with the things that we need to keep up with. So I'm really happy with the progress that we're making here. Because as I said a lot of times those kinds of things fall by the way side because of you know just...you're just doing the day to day operation so thanks very much for everybody's input and also efforts to really review these things on a regular basis so that we are all up to date and you know as we move along we're making continuous improvements to make it easier for the public to come and present their concerns and make it clear you know and I think that's always a good thing. 18 Ms. Sumner- Mack: Could I ask a question please? Do we make any effort to post the meetings or announce the meetings publicly? Like in the newspaper...in the events section or anything because currently I can sometimes tell people that we're meeting. But a lot of people don't know we exist. Mr. Yoshimoto: Yes we post the agendas. They're also on our County website. So the notice gets out that way and in terms of the rules once the board finalizes its rules then that'll go out for public hearing. That'll be published in the newspaper as far as that rule...public will have an opportunity to comment on the rules once this board is done with its proposed amendments. Ms. Sumner -Mack: Thank you. Ms. Kahakalau: I do agree that you know not too many people know about this board of ethics you know and our function...and that's something that we all can continue to educate the public you know informally and a letter to the editor or something just to kind of put it out there...I don't think there would be anything wrong with that if an individual whether they're a board member or not...writes a letter to the editor just informing the public and saying hey this is who we are and this is what we do. That may be another way just to broaden the understanding of the board itself or the fact that the board actually exists and kind of the basic functions of it...That's certainly something that I think that somebody can take on if they're so inclined. Do we have any other ideas, concerns...in regards to number 7? Mr. Robinson: No. Ms. Kahakalau: No? Ms. Sumner -Mack: Wait are we going to do 5.5? Ms. Kahakalau: So yes, let's go back to our number 6 actually which is executive session. Mr. Robinson: No. We're still on the rules. Ms. Sumner -Mack: I thought we were still...we were going on to 5.5? Ms. Kahakalau: 6 and 7. I'm sorry I thought Mr. Goodenow asked if there were any other changes. Ms. Sumner -Mack: Oh sorry. 19 Ms. Kahakalau: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: Mr. Yoshimoto: Mr. Goodenow: Ms. Kahakalau: And so please if you have any other suggestions let us know where you're at and then we will go there. Well I'm looking at 5.5 Advisory Opinions and I frankly don't understand a. At the conclusion of the investigation or the investigatory hearing whichever is later, the board will render and advisory opinion in accordance with rule 4.9, unless the board renders an advisory opinion? That doesn't make sense to me. Well if I could respond. This is why in my bottom line conclusion we should just get rid of ours and go with Maui's because ours are much more difficult to read and fully comprehend. Is it an investigation? Is it a hearing? What is an advisory opinion? We don't call it a complaint. A person who seeks an advisory opinion might be coming about their job right. Their new job after they...might be something else. It is really confusing to me. I like Maui. It's much clearer and I know this is kind of a broad side to you all here I'm saying well my solution has got it all in with Maui. Maybe if you need more time to review it at our next meeting too we can say look...we looked at Maui. And I'm going to incorporate so you'll have the whole document at the next meeting. You can read it...except for those 2 changes or that we talked about...you can read it and say I don't like that. Yeah so this reason why we need to make amendments right because that 5.5 a. is clearly unclear right so that's reason we're doing this and how it got in there...we really don't know. In this version but it's there now and we really...I agree with you that that's not a sentence that should stay in there. I think it mentions things that I haven't heard mentioned or uses different language too so...I have no objection to...all I wrote down was that it was too broad. It was just too broad. Actually there's a typo in the proposed...oh the...when you actually look at the rules...the rules says...unless the board finds it necessary to conduct a formal hearing before rendering an advisory opinion. So if you read that, that makes sense. But even then I mean it is old fashioned stilted. You know a regular person is...the Maui rules to me are much friendlier. And that's really what we are shooting for...user friendly. You know so that a citizen comes here and reads the rules and understands them and I have to say us board members as well. 20 Mr. Goodenow: Mr. Robinson: Because many of us don't come from legal backgrounds or not all of us come from legal backgrounds and so we should also be able to read it...you know without having to get advice from somebody else. And to be honest in a lot of... I think what happened was Maui amended their rules and they kept the sum of the stuff that we have is identical right. Like if you looked at you know formal hearing how...but they updated it and here's the bottom line on Maui. They have assessed civil fines and they...like us it would say...our informal advisory opinion you should pay us a fine of $50 or file this right...you know file it. Well if they correct it and file it...their disclosure statement or something they don't have to pay the fine. And they've had a hundred percent compliance with that apparently. And they've levied fines but no one has appealed it so there's no judicial review of their rules but they're working now they're actually...they give you a fine if you don't file your financial disclosure statement on time. 50 bucks. I like that. Ms. Sumner -Mack: I do too...I thought...I think it's odd that we don't ever mention fines. Ms. Kahakalau: Mr. Robinson: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: I agree as well. An incentive right. Okay so that was 5.5. Are there any other questions, comments, concerns for 6 or 7? 6 or 7...oh within the amendments. The rule 6...no I'm on 5. Rule 5 but I think 5 we're kind of at the end of it. 5.5 was the last part. It's the last part of 5 so I'm just moving through the document. So we have 5.5 which is the end of 5 and then we get to rule 6 and there as well...there are the changes recommended that would follow the Maui version. Correct? Yeah. And so I'm just asking if there's any questions in...for rule 6. Well I don't know if the Maui. The Maui seems sort of long. I was going to suggest adding sections from the other islands but I mean things like I would propose adding nothing herein. This is on the Honolulu...nothing herein shall prevent a legal counsel from investigating possible violations of the standards of conduct that are not stated in the complaint and are which are based on 21 Ms. Kahakalau: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Robinson: information obtained in the course of the investigation of the complaint. Can you please tell me what... That's on the Maui...on the Honolulu... Yeah just the... Page 11 of the chart. Page 11...I'm sorry. Oh page 11 okay. Thank you. Well that goes to that thing we were talking about earlier right. Under our rules...there is the current rules...there's this investigatory function where the Maui way it's much more quasi- judicial review of what's happened right. And we don't say for example that we're going to be the prosecutor. Now Honolulu is different...they have the board but into addition to the board they have a full time director right and he has a staff. Well he acts as the prosecutor, the board acts as a Judge. But I don't think it's very appropriate for us or even our corp. counsel to take on those roles. I don't know maybe when they wrote our rules for Hawaii County the anticipated more funding...I don't know. But the fact is what we do is really reflected in what Maui does. We don't have that function. We don't do that. So that's a philosophical question. Which I felt should be left out because we're going with this approach of Maui where you just have the hearings...informal or formal hearing. But that's open. I think one thing that would...we could do is you know if I type it up right with the changes and leave it with just the Maui you can look at the Maui and then really get a...I mean what the whole draft is and get a feel for it. Yeah. I strongly support that as well...and then you know we can always...we will still have the drafts here that include the Honolulu and the Kauai...the parts that are in the Honolulu and in Kauai rules and if we do feel once we get the whole thing that we need to add a specific section...then we can always still add those to our new rules and regulations. Madam Chair if I may. When I first got these rules I read through them and they were kind of Frankenstein in that they've ex'd out things and added in things and it's... Would be nice to have 22 Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: something that's consistent that's together that is complete. The only thing in rule 8 the financial disclosures and I don't want to sound like a broken record but I've always had the concern that the people they get the special contracts with the Mayor like the 14 people we find out. They're not obligated to file financial disclosures and yet they're getting a private benefit from the county by being appointed to this position or hired. In we saw in the case of the one lady who had been hired on the special contract and she was still considered an employee in her employment went credited towards retirement. And I think people like that...that had those special agreements under the financial disclosure requirement should be required to file a disclosure as well. So if that's something you could... Well rule 8 and 9...for next time I'll make a chart like this so we can see what the other counties do...very good. Yeah...cause I do agree that, that's kind of a little loop hole or whatever you would like to call it. Yeah I agree. Alright we are on rule 6 though at this point. Are there any further comments on rule 6? Well it was 6.4 Presentation of the Case...now I don't know if Ken also wants to go with just with Maui...substituting but there are sections in both the Honolulu and the Maui stipulations that I think would be useful. But maybe you could weave some of those in. I trust you with weaving them in. That's the plan right. I think if you look at right on page 15 Honolulu rule 7... Sorry that's 7.3 c. of Honolulu. Any party including the complainant and the respondent may apply to the commission or designee for the issuance of subpoenas for the appearance of witnesses or the productions of records...requesting a subpoena shall pay to the witness the same fees and mileage as are paid witnesses in the circuit courts right. That's one thing I wanted to add for sure. Ok I had that. If there's anything else tell me. Yeah that's a good one. I had that marked and I had some of the Maui's too the formal hearing. 23 Mr. Goodenow: Mr. Robinson: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: And Maui but just how it reads right...read ours right. It is what it is but Maui it says opening statements before the presentation of the case the parties shall have opening statements...they may be waived...the order of making open statements shall be as follows...it is a bit longer but it's really clear you're from the public you know okay hey this is how it's gonna go down. I shouldn't use that word sorry. Take that...strike that. I've never seen before in court...this is how it's gonna go down. I think we should clarify as much as you feel is necessary and incorporate what you need from the Maui and also I think the language should be regularized so that it's either the complainant or it's the petitioner and use that word throughout because in these instances isn't that... To me that's going to be your job. When you and the Judge sit down and look. You have the expertise in that area. Thank you for... I intend to do that. I'll do my best. I'll do my best but there may be some you know... Inconsistencies but we should definitely shoot for and I totally agree with you on being consistent with the terminology because it just makes it that much easier when you have the same word for the same person yeah. Moving on we're on 6.5 Pre -Hearing Conference. Anything in that section again...what's happening is we will leave it up to Vice -Chair Goodenow to incorporate the Maui sections and anything else from Honolulu or Kauai that's pertinent and kind of makes the whole thing flow. Well I was pretty much gonna put Maui. I'll put in the subpoena part. I'll put in the other part and anything you identify to me now but I may make a suggestion but the way I do the draft it probably won't...it's really Maui to me seeing the flow was best as it was. Alright. Then anything else on rule number 6? Okay and then rule number 7 is quite short. That's the complaint, disposition, opinion and impeachment...anything there? Any other comments for rule number 7? Ms. Sumner -Mack: Wait a minute...excuse me but on 6...back to 6 if you don't mind. Ms. Kahakalau: No, not at all. 24 Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Mr. Yoshimoto: Ms. Kahakalau: Mr. Goodenow: On 6.7 Issuance of Formal Opinion. We say within a reasonable time after the close of the hearing, the board shall issue its formal opinion on the alleged conduct which shall be based upon competent and substantial evidence and I'm wondering if we need to clarify what is reasonable time because Honolulu says thirty days. Maui is more like ours. Like I said I think they were very similar to begin with. They say reasonable cause. Reasonable. I like the 30 days. I think that's a reasonable time and the more specific we can be, the stronger the rules are gonna be in terms of consistency. And I think 30 days is a reasonable time so maybe we can put that into our draft. Take the rule 7.7 the Honolulu version for that part. I agree with. I can do that. I just note sometimes there's very unattended consequences. For example you know there was a certain board where they had to meet right and they had a hurricane or something and then they rescheduled but it was like a day after the 30 days...that was it. But I'm okay with doing that...I'm at your instructions...30...I'll put the 30 okay. Counsel do in general as rules go what's the accepted practice in terms of time. 30 days I think is a reasonable period of time. But I do think that having leeway also helps because you don't want to have something... Out of control kind of... Right. Cause it says 30 days after the final hearing or meeting because this is Honolulu's language but it would be 30 days after the hearing right...we shall render its decision. Well what if we don't have quorum? And then we gotta make sure the meeting is before that time cause we vote on the final. We gotta vote on it. So... Ms. Sumner -Mack: Well how about putting in language like...unless there are extenuating circumstances. 25 Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Yoshimoto: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Mr. Robinson: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Yeah. Yeah. Which would cover everything. Yeah. Or is there any other terminology that's generally used...to provide that leeway cause I agree. You know when there are things that are out of everybody's control kind of that...just can't be helped. But is there a standard language that's used to kind of give you a specific time...but then also provide for this leniency or you know exception in terms of special circumstances. I don't know that there's standard language but you know different boards, commissions, courts I mean they use good cause they use other language...you know it goes to the same point so we'll come up with something. Alright...but I'll make a change...you can leave that to my discretion...I get your intent. Okay. Great. I have one more question. It's just a legal question maybe but on Kauai's discussion page 25. 8.5 Decisions. I don't understand this sentence. Maybe it's just a typo. Maybe. I'm sorry. Within 45 days after a decision has been rendered, the board shall file a deleted decision which shall be a matter of public record. It can't be right. Wait and I don't have my binder I never brought the file to look at my original. It's probably intended to be "concluded". Completed...maybe that sounds...anyway you can tell us later. Spell check did something there. Either way don't put this specific sentence in. No. It's interesting they get 45 days though...after they render a decision you gotta have the... 26 Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Okay moving right along. Rule number 7, unless there's anything else on 6.8 or record that's more procedural. In that I wasn't gonna gut with Maui...I'm sorry. I think that was...or maybe oh no it was...right. But you've got 7.1...what does that say....what does that mean? It should be an "is". Ms. Sumner -Mack: Is? Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Yeah, I'm sorry, there is a typo there too, right in the first... With respect to officers removable only by impeachment if there is no compliance of a formal opinion issued against an officer. Whoops there's a typo there. No compliance of a formal opinion? Does anyone have their rules with them? Oh perfect that's what we need. Then again sorry I don't have the... Sorry you know the story though right we talked about it last time. With the...they had to be retyped. Maybe she wasn't in a good mood. I don't know. Cause at the last meeting we talked about that. Okay. I really have more of a problem with the rest of the sentence. It says if there is no compliance of a formal opinion issued against an officer. Yeah...here I'll read the rule. Yeah it is an "is". With respect to officers removable only by impeachment. If there is no compliance of a formal opinion issued against an officer removable only by impeachment, the board shall issue a complaint and refer the matter to the counsel. Well I object... Well cause we have no power over an elected official. Well I object to the preposition not to the compliance of a formal opinion. Should it be with...compliance with? I agree with you there. 27 Ms. Kahakalau: Okay so we can make that more semantic change. Yeah. That's page 27. Mr. Robinson: Mr. Goodenow: Mr. Robinson: It's good, it's good. Yeah I mean. No. It's...this is important. Ms. Sumner -Mack: The deleting is important right. Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Yeah. I'm sorry and I wanted to look at the Maui section is in another section that was...earlier right...included this whole section in the Maui section. I'm just trying to find it for us. 69.2 cause it says right on there. Oh sorry. This was written in September. Oh yeah Maui. 101-69.2 Complaint disposition/opinion. What page? Trying to...it's copied above so you would be looking at 69.4. See all of the Maui stuff that I was saying is...that's going into 6...some of it covers what 7 is. You know it kind of puts back into the...cause this is disposition... Actually let me find it. I got 69.4 you know it's all chopped up...69.2 where are you? Well it's similar. Oh here we go...with reasonable time after final arguments have been completed. That parts already in 6 on the Big Island. But then it goes...if you go down to (4) There is sufficient evidence to support the allegation of the complaint and ground to justify a recommendation that appropriate action be taken including the issuance of a fine not to exceed a $1,000 etc., etc. if a fine is recommended by the board, the fine shall be collected by the board made payable to the County and deposited in the general fund. Every opinion the board rendered after hearing... There's a little typo there...and then be made payable...but that's kind of... Yeah. But you know what the Maui section...sorry now I know where we're at. The Maui section is back in 6 under the complaint. It's similar language saying that after the informal hearing... Right now we go back to rule 7 in ours sorry. I wish I brought my materials. If I had my binder I'd read but basically I think you're right that the grammar should at least be 28 Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Ms. Kahakalau: Mr. Goodenow: Ms. Sumner -Mack: corrected...the language. But that provision is in Maui and in a different portion. Well we can correct it if we know what it's...what it means. Oh so you're saying...I'm sorry I got distracted. I'm not quibbling with anything you're doing. I haven't found where you are. Are you on 7.1? Yes. But I'm looking for Maui 69.2 which is stuck somewhere earlier in the document. But I don't believe there's any reason to change this. I mean except for the language that you recommend. Oh and we don't have to adopt Maui for this. My talk about gutting was all about 5 and 6 not 7. So I apologize for my digression there. Yeah. I think you know given the way this now getting at a single document you know that has all the recommended changes and I will suggest that as we review that at home Members that you do have the Honolulu and Kauai options as well as you know our rules to kind of go back and forth and cross check. And you know see if there are areas that are unclear...I would say let's go back to our original rules and what they say and then if those are unclear as well you know or if that was copied from those original rules then look at the Honolulu and the Kauai one and see if there's anything you know that we could...to clarify it. If those are better and if not we can create our own language as well you know if there should be sections like that. What I'll do for the review is on this rule 7. I'm gonna leave it as it is in the Big Island but I'll add the motion to reconsider in the Maui section alright and my... And I can't find it here. I think Maui's language is similar. If it looks clear to read...I think there's no...no one has substantive issue with rule 7 right. Right then we'd send it to the council right cause what are we gonna do? No one has a substantive problem if the language looks better in Maui I might throw it in for our review. But the substance will be the same. I like the addition of the motion to reconsider. And stipulating on what conditions you would take up of an appeal. That's very good I think. An intervening change in controlling law, the availability of new evidence of a type previously unavailable or the need to correct clear error or manifest injustice. I think it's...that's good to have in there. 29 Mr. Goodenow: Okay. So are we done with...? Ms. Kahakalau: Does that conclude our discussions regarding the amendments to the rules and practices and procedures? Mr. Robinson: My ones about financial disclosure which I voiced earlier which are already there so we're good on that. Motion and Vote: Mr. Goodenow moved to file correspondence dated September 24, 2018. Ms. Sumner -Mack seconded. All members voted aye. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF SEPTEMBER 11, 2018 (11:24 a.m.) Ms. Kahakalau: Mr. Goodenow: Mr. Robinson: Ms. Kahakalau: Mr. Robinson: Okay. I just realized something. Which is that unless I'm losing it. We didn't do the approve...number 3? Did we do number 3? No. Not yet. Yeah so that's my bad I guess. Now it's my turn to apologize for...I just wanted to get going. No so before we move to five. Let's do the approval of the regular session minutes of September 11, 2018 and I apologize. Madam Chair I'll make a motion to approve the minutes of the session of September 11, 2018. Ms. Sumner -Mack: Second. Ms. Kahakalau: Any discussion? Alright. All in favor say aye. Any oppose? Motion is carried. Thank you. And then we're going to move on to 6 which is our executive session and we would like to go into executive session. Motion and Vote: Mr. Robinson moved to approve the minutes. Ms. Sumner -Mack seconded. All members voted ayes. Mr. Robinson: Madam Chair I'll make a motion that we go into executive session to consider we go through all that. Mr. Goodenow: You gotta say it. 30 Ms. Sumner -Mack: Mr. Robinson: Ms. Sumner -Mack: Ms. Kahakalau: I would second except that since we have people here who might like to know what our schedule is. I would take up 8 and discuss the next meeting... set that and then come back to the... Okay, I'll withdraw my motion then. Could we do that? I have no objection to that...yeah. But that's perfectly fine so we're holding off on number 6 for a moment here and going to number 8 which is discussion re changes to the board of ethics monthly meeting schedule and right now we have December 11 at 10 o'clock for our December meeting. 8. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (11:27 a.m.) Ms. Kahakalau: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Ms. Kahakalau: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Ms. Kahakalau: If people could just check their calendars to see if that's okay and if we're gonna have a quorum there. It's good with me. What day is it again? Tuesday. It's your regular Tuesday, second Tuesday that we've been doing for a while now. Yeah I think it's already on my calendar I'm pretty sure. Oh I do have my phone. Unless I get called for jury duty. Oh. Unless they assign us to Judge Nakamoto's court over here in Hilo for jury duty. How far do you live, you're exempt if it's over 70 miles. I wrote him a letter the other day but... So I know I'm not going to be able to. I'm on Oahu on the 11th but if we have a quorum and Vice -Chair Goodenow is willing to. 31 Mr. Goodenow: You know I have a settlement conference at 9 in a divorce that probably would be over in an hour but you never know and I'd hate to end it if we're hot on settlement you know. I'd ask that we change it. The campaign spending commission is on the 19th, not the 12th. I don't know if... Ms. Kahakalau: You'd have to check on availability. Mr. Goodenow: I'm free on December 12. Ms. Kahakalau: Yeah the 12th works for me too. I can be back. Mr. Robinson: That's a normal golf day but I'll give it up. Ms. Kahakalau: Do we know if the room is available on the 12th Ms. Pagala: I can double check with the clerks. Ms. Kahakalau: Okay. Do we need an alternative? Mr. Goodenow: Well maybe while we're in executive session we take a recess, she could check. Ms. Kahakalau: Check on it if that would work yeah. Ms. Pagala: I'll check on the 12tH Ms. Kahakalau: Let's do that. So tentatively it would be the Wednesday, the 12th, at 10:00 a.m. And we will check on the availability of the room and then it will be posted as usual. So that's kind of then also the...we'll do the number 9 announcement then once we know if the room is available. Mr. Goodenow: Okay. Ms. Kahakalau: Can we now... Mr. Robinson: Madam Chair I'll make a motion that we go into executive session. Ms. Sumner -Mack: I'll second. Mr. Yoshimoto: Also just for the record but also pursuant to 92-5 (a)(2), 92-5 (a)(4), 92.6 (a)(2). 32 Ms. Kahakalau: Yes thank you counsel for the clarification. Any discussion? All in favor say aye. Okay we're going into executive session now. Thank you very much. Motion and Vote: Mr. Robinson moved to go into executive session. Ms. Sumner -Mack seconded the motion. All members voted aye. 11:29 a.m. The Board moved into executive session. * * * 11:38 a.m. The Board returned from executive session. 6. VOTING ON EXECUTIVE SESSION MATTERS (11:38 a.m.) a. Review of the executive session minutes of September 11, 2018. Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: Ms. Sumner -Mack: Ms. Kahakalau: Thank you everybody we are back from executive session and where we reviewed the executive session minutes. Do we have any motion for filing? Oh I move that we approve the executive session minutes of September 11, 2018. Do I hear a second. Second. Any discussion? All in favor say aye. Motion and Vote: Mr. Goodenow moved to approve executive session minutes. Ms. Sumner -Mack 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 then for information we also approve two of the three confidential financial disclosure forms which was number 1 and 3. Number 2 got returned for additional information. Mr. Yoshimoto: Oh sorry did I miss it. Was there a motion to accept 1 and 3 and return number 2? There was a motion? 33 Ms. Kahakalau: No we didn't. We just kind of stated it. So let's make a motion there...my bad. Mr. Robinson: Motion that we accept 1 and 3 and reject 2 of the presented financial disclosure forms. Ms. Sumner -Mack: Second. Ms. Kahakalau: Any discussion? All in favor say aye. Motion and Vote: Mr. Robinson moved to file items 1 and 3. Ms. Sumner -Mack seconded. All members voted aye. 9. ANNOUNCEMENTS (11:40 a.m.) Ms. Kahakalau: And our final agenda item is the announcement. Maria checked for us so we'd like to schedule the next monthly meeting of the Board of Ethics for December 12th at 10:00 a.m. at the Hawaii County Building. Mr. Goodenow: Okay. Ms. Kahakalau: Thank you very much. Have a fabulous Thanksgiving. 10. ADJOURNMENT (11:40 a.m.) Ms. Kahakalau: So I wish everybody a fabulous Thanksgiving and we'll see each other in December. Thank you very much. The meeting is adjourned. 34 Respectfully submitted: ,A,f6vvvit tc+1,1 Maria Pagala, Secretary