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HomeMy WebLinkAboutCOM 1089.000 2004-2006 0 BOARD OF ETHICS 101 Aupuui Street, Suite 325, Hilo, Hawaii 96720 EP 2 '1 r September 20, 2006 Stacy Higa, Chairman and Council Members Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairman Higa and Council Members: Re: Informal Advisory Opinion for Petition Nos. 2006-02 and 2006-03 filed by Kaniu Stocksdale and Norman Olesen regarding GARY SAFARIK, Council Member for District S, and a violation of Section 2-83 (b)(3) of the Hawaii County Code. This Informal Advisory Opinion is being forwarded to you pursuant to Board of Ethics Rule 4.10(a): "After an informal advisory opinion is rendered, the Board shall notify the appointing authority of the officer or employee involved, or the Council in the case of elected officials, of its informal advisory opinion. " And, pursuant to Board of Ethics Rule 4.10(b): "The appointing authority or the Council shall take whatever action that is deemed necessary and report the action taken to the Board within thirty days after receiving the informal advisory opinion, provided where a request is made for a formal opinion by the officer or employee or instituted by the Board pursuant to Rule 6, the appointing authority or the Council shall report the action taken, if any, to the Board within thirty days after issuance and ofsuch formal opinion and refusal for disposition as provided in Rule 7. " Sincerely, i Bobby Jean Leithead-Todd Deputy Corporation Counsel BLTkd Enclosures S:\boc\cou 2006\petition 2006-02\ltr to council 092006 BLTkd Comm. No. Ma Ref. To: Hawaii County is an Equal Opportunity Provider and Employer Ref. Gate SEP 2 2 7nnR BEFORE THE BOARD OF ETHICS COUNTY OF HAWAII In the Matter of a Petition for an PETITION NO. 2006-02 and Informal Advisory Opinion by PETITION NO. 2006-03 KANIU K. STOCKSDALE and NORMAN F. OLESEN Petitioners, Regarding GARY SAFARIK, Council Member for District 5, and a violation of Section 2-83(b)(3) of the Hawaii County Code. S:/B&C/130UPetiHmsM0 091206 Und INFORMAL ADVISORY OPINION The Hawaii County Board of Ethics ("the Board") reviewed a request for an informal advisory opinion filed by Kaniu K. Stocksdale and Norman F. Olesen (hereinafter "Petitioners") concerning whether Council Member Gary Safarik (hereinafter "Council Member") was in violation of Section 2-83 (b)(3) of the Hawaii County Code. Section 2-83 (b) provides as follows: No officer or employee shall use or attempt to use the officer's or employee's official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment, for oneself or others; including but not limited to the following: (1) Seeking other employment or contract for services for oneself by the use or attempted use of the officer's or employee's office or position; (2) Accepting, receiving, or soliciting compensation or other consideration for the performance of the officer's or employee's official duties or responsibilities except as provided by law; (3) Using County time, equipment or other facilities for private business or campaign purposes; (4) Soliciting, selling, or otherwise engaging in a substantial financial transaction with a subordinate or a person or business whom the officer or employee inspects or supervises in the officer's or employee's official capacity; (5) Using County property or personnel for other than a public activity or purposes. FINDINGS OF FACT The Board at its duly noticed meeting on August 30, 2006, reviewed the Petitions and evidence submitted and received testimony from the Petitioners and the Council Member and makes the following Findings of Fact: 1) Section 14-5 of the Hawaii County Charter provides that the Board of Ethics (Board) shall: Interpret the code of ethics for both County officials and the public; render advisory opinions to County officers and employees; receive and initiate complaints of violations of the code; transmit such complaints to the council or the appropriate appointing authority along with any pertinent advisory opinions; hold hearings or conduct investigations and make public such violations of the code that come to its attention; and publish advisory opinions with such deletions as may be necessary to prevent disclosure of the identity of persons involved where the request for an opinion has been made by an officer or employee; 2 2) Section 2-83 (b)(3) of the Hawaii County Code prohibits a County officer or employee from using County time, equipment or other facilities for private business or campaign purposes; 3) Section 2-83 (b)(5) of the Hawaii County Code prohibits a County officer or employee from using County property or personnel for other than a public activity or purpose; 4) Article XN of the State Constitution states that the "...people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct..." and to keep faith with this belief the legislature and each political subdivision is required to adopt a code of ethics which shall apply to appointed and elected officers and employees; 5) Section 14-1 (b) of the Hawaii County Charter provides that elected and appointed officers and employees shall demonstrate the highest standard of ethical conduct so that the public may have trust and confidence in the integrity of government; 6) Section 2-80 of the Hawaii County Code provides that the ethics code shall be liberally construed to promote high standards of ethical conduct in County government; 7) Section 2-83 (a)(1) of the Hawaii County Code provides that all public property and equipment are to be treated as a public trust and are not to be used in a proprietary manner or for personal purposes without proper consent; 3 8) Petitions 2006-02 and 2006-03 were initiated by members of the public. The petitioners are Ms. Stocksdale, a candidate for the District 5 Council seat, and Mr. Olesen, a campaign manager for Ms. Stocksdale. Mr. Olesen received a copy of a July 2006 "newsletter" mailed to some residents of District 5 by Council Member Gary Safarik. The Council Member is currently the incumbent and is running for re-election; 9) Upon receipt of the Petitions, the Board forwarded a copy of them to the Council Member. The Council Member did not request that the matter be kept confidential; 10) Council members have District Allowance Expense (DAB) accounts. Under the rules adopted by the Hawaii County Council, council members are allowed to use DAE funds to pay for "special mailings or handouts" among other incidental expenses related to carrying out his/her duties as an elected official. Pursuant to these rules, council members are personally responsible to pay any expenses that are deemed prohibited. Prohibited expenses include political or campaign related expenses; 11) Legislative newsletters are newsletters sent to constituents of elected officials to advise them of the activities of the legislative body. Such newsletters can be an effective means for elected officials to communicate with their constituents regarding legislative activities and community affairs with which the council member is associated; 12) In an election year the use of such newsletters can provide an advantage to incumbents seeking re-election. The Council Member informed the Board 4 that the State Legislature prohibits the use of its legislative allowance to mail newsletters after July, and that the Council Member intended to follow the State Legislature's rule in the mailing of his newsletters. Hawaii County Council Rule 33(2) does not contain a similar limitation limiting the mailing of newsletters after the month of July. The Council Members newsletters were all mailed in either June (first mailing with no reference to website) or mid-July (second mailing with one sentence reference to website); 13) On or about July 13-14, 2006, letters dated "Second Quarter 2006" were mailed to approximately 122 residents of District 5. Although more newsletters were sent to the machine room to be mailed, the County Clerk exercised her discretion and stopped further mailing of the newsletter upon receiving notice of the Petitions; 14) The letters were typed by County personnel on County letterhead. The letters were mailed through the County's machine room utilizing County equipment. The postage, envelopes, and labels were paid for with County funds. All activities occurred on County property; 15) The mailings consisted of a letter and attachment that provided information about Capital Improvement Projects (CIP) for the Puna District; 16) The second to the last sentence of the July 2006 letter asked recipients of the letter to please check out the Council Member's website; 5 17) An earlier, virtually identical letter, was mailed in June 2006 to 459 residents of Puna Makai. The earlier letter did not include any reference to the website but included the same attachment listing the CIP projects for the Puna Makai District (District 5); 18) The subject website is the Council Member's campaign website. The front page of the website notes that the website is paid for by the committee to re-elect the incumbent Council Member. Although there was information on the website that did not pertain to his campaign, the website was primarily a campaign website; 19) Members of the public that received the July 2006 newsletter would have been led by the reference to the campaign website which promoted the Council Member as a candidate. Although the Council Member testified that the use of his campaign website was inadvertent, even if inadvertent, it combined an official newsletter with a campaign reference making at least a portion of the newsletter an impermissible use of County resources for a campaign purpose; 20) The Council Member appeared and testified. The June 2006 newsletter is personally signed by the Council Member. However, the July 2006 newsletter bears a stamped signature of the Council Member. The July 2006 newsletter was read over the phone to the Council Member by his secretary. His secretary informed him that she had added the sentence regarding the website. The Council Member verbally approved the July 2006 newsletter. The Council Member testified that his intent was to give 6 his constituents an additional means of communicating with him and that it didn't dawn on him that it would be inappropriate; 21) Upon receiving the Petitions, the Council Member reviewed his letters, realized that the reference to the website was inappropriate and based upon his assumption that 400 letters had been mailed at a cost of $0.39 cents a piece, he reimbursed the County $252.00 to cover the cost of the July 2006 mailing. A copy of the check was provided; 22) Information received via email from the County Clerk indicated that the cost of the July 2006 newsletter (Xeroxing, envelopes, labels and postage) was actually $125.34 as only 122 pieces had been mailed. This did not include any other costs for use of County time, equipment, or facilities; 23) The Board, by a vote of three to two, found that the amount of $252.00 was reasonable restitution to cover reimbursement of the cost and incidental expenses related to the July 2006 mailing for the use of County time, equipment, facilities, property, and personnel; 24) The Hawaii State Ethics Commission issued Informal Advisory Opinion No. 2005-5 which concerned a similar complaint leveled against an elected state official. The Commission concluded that inclusion of a reference to a campaign website was a violation of the State Ethics Code, Hawaii Revised Statutes (HRS) Section 84-13 (3); 25) HRS Section 84-13 (3) is very similar to Section 2-84 (b)(3) of the Hawaii County Code. The elected state official involved in informal Advisory Opinion No. 2005-5 agreed to reimburse the State a sum of 7 money proportionate to the cost to the State for the inclusion of the reference to the campaign website in the official material. The State Ethics Commission received a check from the official for the agreed-upon amount, which was deposited in the State's General Fund. Because the official paid the restitution the Commission deemed appropriate, the Commission believed that issuance of an informal advisory opinion was appropriate to terminate the case and that further proceedings were not warranted; 26) The creation of the Board of Ethics is mandated by the Hawaii State Constitution. Created under the authority of the Hawaii County Charter, the Board's function is to provide an avenue for County officials and the public to request opinions regarding the interpretation of the ethics code; 27) Information that a County official or employee wishes to incorporate into official materials that might be construed as campaign-related should be brought to the attention of the Board by a request for an advisory opinion before the material is sent out at taxpayer expense; 28) Official material made available to the public should not contain references to campaign-related information or events; 29) County elected officials and employees should exercise care and deliberation in the use of County equipment, facilities, property and in the production of official material for the public. These materials are paid for by the taxpayers; 8 30) Pursuant to the Board of Ethics Rule 4.9, an informal advisory opinion, if one is issued, will be sent to the third party who requested the opinion with a copy to the officer or employee concerned; 31) Pursuant to Board of Ethics Rule 4.10(a) after an informal advisory opinion is rendered, the Board shall notify the appointing authority of the officer or employee involved, or the Council in the case of an elected official, of its informal advisory opinion; 32) Pursuant to Board of Ethics Rule 4.10(b), the appointing authority or the Council shall take whatever action that is deemed necessary and report the action taken to the Board within thirty days after receiving the informal advisory opinion. CONCLUSION OF LAW Based upon the information provided by the Petitioners in their Petitions, the testimony and admissions of the Council Member, and the evidence adduced at the hearing, the Board finds and concludes as follows: The Board concludes that Council Member Gary Safarik violated Section 2-83 (b)(3) of the Hawaii County Code by including a reference to his campaign website in his second mailing of the newsletter in July 2006. The Board further concludes that Council Member Safarik has so acknowledged the violation and reimbursed the County of Hawaii in the amount of $252.00. 9 ORDER This Informal Advisory Opinion and copies of the petitions shall be forwarded to the Petitioners, the Council Member, and the Hawaii County Council, pursuant to the Rules of Practice and Procedure of the Board of Ethics of the County of Hawaii . Dated: Hilo, Hawaii September 20, 2006 BOARD OF ETHICS, COOF HAWAI` By REEVE N. WILLIAMS, Chair APPROVED AS TO FORM AND LEGALITY: BOBBY JEAN LEITHEAD-TODD Deputy Corporation Counsel 10