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HomeMy WebLinkAboutCOM 0537.001 2006-2008 `M,,w `'""r Lincoln S.T. Ashida ~ Corporation Counsel Harry Kim ' Mayor Gerald Takase 1 , Assistant Corporation 'r• b:'d~• Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720262 (808) 967-8251 • Fax (808)961-8622 r- , August 6, 2007 , Sent via email; no hard copv will follow " Honorable Pete Hoffmann and Members of the ' Hawaii County Council , County of Hawaii 333 Kilauea Ave., 2nd Floor Hilo, HI 96720 Dear Chairman Hoffmann and Council Members: RE: Bi11132 AN ORDINANCE AMENDING CHAPTER 2, ARTICLE 15, SECTION 2-82, HAWAII COUNTY CODE 1983 (2005 EDITION}, AS AMENDED, RELATING TO THE CODE OF ETHICS (exempts "Officers" who have been appointed as members of boards or commissions with only advisory powers and functions from filing financial disclosures) Thank you for your favorable recommendation in passing the above bill out of the Hawaii County Council's Public Works and Intergovernmental Relations Committee on July 24, 2007. At the meeting on July 24'h, Committee members sought answers to a number of questions related to this bill. 1. Has any potential board/commission applicant declined service based on the financial reporting requirement (information requested by Council Member Jacobson)? Yes. Recruitment of members to serve on our boards and commissions has been problematic at times for a variety of reasons, Council members know of this difficulty, as I routinely solicit you for names of citizens from your respective districts who may be willing to serve on our boards and commissions. There are a variety of reasons for this. Some individuals are simply too busy with their work, hobbies, or other extracurricular activities, that they do not have the time to serve on a government board or commission. Some individuals c- Hawaii County is an Equal Opportunity Employer and Provider Comm. ~ J ~1• Ref. To: - Ref. Dote AUG 22 Zpgr_ Honorable Pete Hofnn and Members of the Hawaii County Council August 6, 2007 Page 2 are adverse to the media attention that County boards and commissions sometime attract. Other individuals simply are not interested in government service, or simply lack any interest whatsoever. With respect to the issue of financial disclosure, there have been members from our community who have asked me whether financial disclosures are absolutely necessary. I suspect from the tone of their question that it had nothing to do with a desire to "hide" information or be evasive, but a resistance to providing the government financial information they regard as extremely private. As you know, the information required includes not only assets, but debts owed and their respective amounts. For these members of our community who have expressed such hesitancy, their applications were not pursued, and the issue and inquiry thereupon ceased. 2. A listing of all boards and commissions, and a listing of those boards and commissions with advisory powers and functions (information requested by Council Member Bob Jacobson). Also, a listing of al! boards and commissions whether from the Charter or Code (information requested by Council Member Brenda Ford). Advisory boards/commissions Other boards and commissions Arborist Advisory Board of Appeals Bicycle and Pedestrian Board of Ethics Committee on Aging Charter Disabilities Environmental Management Cost of Government Fire Family Violence Advisory Fire Board of Appeals Highway Safety Liqucr Kailua Village Design Liquor Adjudication Kona Comm. Dev. Steering Merit Appeals North Kohala Comm. Dev. Str. Pension South Kohala Comm. Dev. Str. Planning Public Access, Open Space Police Puna Comm. Dev. Steering Reapportionment Status of Women Salary Veteran's Advisory Tax Board of Review Transportation Water Workforce Investment Honorable Pete HofrRfann and Members of the Hawaii County Council August 6, 2007 Page 3 Board/Commission Legal Origin Advisory Financial onl Disclosure? Bic cle and Pedestrian Charter x No Peo le with Disabilities Charter x No Charter Charter Yes Cost of Government Charter x Yes Board of A eats Charter Yes Board of Ethics Charter Yes Environmental Mana ement Charter Yes Fire Charter Yes Li uor Charter Yes Li uor Ad'udication Charter Yes Merit A eats Charter Yes Pension Charter Yes Plannin Charter Yes Police Charter Yes Rea ortionment Charter Yes Sala Charter Yes Water Charter Yes Committee on A in Charter/Code/HRS x No Arborist Adviso Code x No Kailua Villa a Desi n Code x No Veteran's Adviso Code x No Fire Board of A eats Code Yes Public Access, O en S ace Code x No Tax Board of Review Code Yes Trans ortation Code Yes Workforce Investment Code Yes Famil Violence Adviso Code/Ord 97-111 x No Kona Comm. Dev. Steering General Plan x No Code No financial disclosure is required for both the Bicycle and Pedestrian Advisory Committee and the Mayor's Committee on People with Disabilities, despite their legal origin in the Charter. This is because these boards are not "specifically" created (i.e., they are not named) in the Charter, but instead are created pursuant to the Mayor's discretionary and executive authority found in the Charter. s Article VI, Chapter 5, Section 6-5.5 of the Hawaii County Code 1983 (2005 ed.) provides in pertinent part that the Environmental Management Commission advises the Department of Environmental Management, but "shall exercise any other powers related to the functions of the department that may be delegated to it by ordinance." For this reason, we consider this commission as having more than advisory authority. ' Original charter members of the Public Access, Open Space and Natural Resources Preservation Commission submitted financial disclosures. After a determination that the board's function was advisory only, financial disclosures were not required of new members. Honorable Pete HofitTT3nn and Members of the Hawai i County Council August 6, 2007 Page 4 Board/Commission Legal Origin Advisory Financial onl Disclosure? North Kohala Comm. Dev. Str. General Plan x No Code South Kohala Comm. Dev. Str. General Plan x No Code Puna Comm. Dev. Steering General Plan x No Code Hi hwa Safet HRS x No Status of Women HRS x No During the discussion of this bill, some Council members also queried what was meant by "advisory" boards or commissions. Council Members Stacy Higa, Bob Jacobson, and Brenda Ford specifically asked about the differences between purely "advisory" commissions, and "policy-making" commissions. Council Member Higa utilized the Planning Commission as an example, and suggested that this commission may really have only advisory power. The above example involving the Planning Commission highlights the need to look beyond our Charter or Code, as well as the need to examine other portions of our County laws to see if our boards or commissions have powers beyond those codified and expressed in their enabling legislation. For the Planning Commission, although a cursory reading of Section 6-4.3 of the Charter would lead one to believe it serves an advisory function only, the Commission performs quasi-adjudicatory functions pursuant to Chapters 205 and 205A of the Hawaii Revised Statutes, as well as quasi-adjudicatory functions pursuant to the County Zoning Code. Thus, the Planning Commission is not purely an advisory commission. On a related note, designating a board or commission as "advisory" has other legal consequences. Most notably, Section 92-2, Hawaii Revised Statutes, as amended, may arguably exempt these boards and commissions from compliance with the State Sunshine Law.° ° Section 92-2(1), Hawaii Revised Statutes, as amended, defines "Board° as "any agency, board, commission, authority, or committee of the State or its political subdivisions which is created by constitution, statute, rule, or executive order, to have supervision, control, jurisdiction or advisory power over specific matters and which is required to conduct meetings and to take official actions " Some have argued in the past that advisory boards and commissions in our County do not "take official action," so are thereby exempt from the Sunshine Law. However, the Corporation Counsel has taken the position that advisory boards and commissions are subject to the Sunshine Law, as this is in accord with Section 13-20 of the Hawaii County Charter (2000). . Honorable Pete Ho~nn and Members of the Hawaii County Council August 6, 2007 Page 5 Similarly, boards/commissions like the Police, Fire, Liquor, Water, and Merit Appeals Board are charged with the hire and fire of their respective department directors. Thus, the powers of these boards/commissions extend far beyond advisory authority. What constitutes "advisory" authority? Black's Law Dictionary, 5~' Ed., defines "advisory" as follows: Counseling, suggesting, or advising, but not imperative or conclusive. As discussed in this letter infra, boards and commissions that simply perform fact-gathering tasks and make recommendations to either the administration or Council perform a purely advisory function. So long as their decisions are not binding on the administration, Council, or County, they are considered advisory boards or commissions. In compiling the above list, our office examined the statutory authority for each of the listed boards and commissions to conclusively determine whether their function was advisory or whether they performed any function that was binding upon the administration, Council, or County. 3. Copies of the minutes of the meeting of the Board of Ethics where an amendment to the Code was discussed (requested by Council Member Stacy Higa). Enclosed are copies of the minutes from the January 10, 2007, meeting of the Board of Ethics. As you can see, the Board essentially adopted the recommendations made by our office, as they were advised that our office intended on recommending the Council amend the Code to make all sections consistent with one another. Should all boards and commissions, whether advisory or not, be subject to the financial disclosure requirement? During the meeting of the Council Committee on Public Works and Intergovernmental Relations, some Council members questioned the rationale upon which our present request to amend the Code was premised. Others expressed a concern that a!I board and commission members (whether members of advisory boards or not) should file financial disclosure statements. As a practical matter, assuming the Council passes these recommended amendments to the Code, the only board or commission that would be presently affected would be future members of the Cost of Government ' .w. Honorable Pete Ho~nn and Members of the Hawaii County Council August 6, 2007 Page 6 Commission. Also. anv ambiguity concerning the Committee on Agin4 would be cleared up, as members of this advisory body would not be required to file financial disclosures. This is because the Cost of Government Commission is presently the only Charter-based commission that has advisory authority only. With respect to the Committee on Aging, its authority is based in the Charter, Code, and State law. Further of course, the prospective application of these proposed Code amendments would mean members of Charter-based advisory boards or commissions created by the Council in the future would not need to file financial disclosures. The right to privacy of our citizens must be balanced against the government's need to know and require disclosure of persona! information Why not just simply have all board and commission members, irrespective of whether they serve on an advisory board or not, file financial disclosures (as some Council members have suggested)? Our office has taken the position that requiring our citizens to provide personal information to the County should be on a "need to know" basis, and government should not require such private information unless absolutely necessary. There is good reason why board/commission members with advisory authority only are not required to file financial disclosures. As their recommendations as a board (either collectively or individually) are non-binding on the Mayor, Council, or County, there is not a pressing ethical need for scrutiny of personal information for the purpose of government transparency. On balance, the individual's privacy interest (a legitimate concern of our County) outweighs the government's obligation to collect and analyze this data. Of course, the situation is dramatically different for those members who serve on boards and commissions that make substantive binding decisions that affect members of our community, or perform adjudicatory orquasi-adjudicatory functions. Our laws demand, and we do expect, that these individuals accept the responsibility of divulging matters of personal privacy in the interest of promoting and maintaining the public trust. As a practical matter, when present financial disclosures of board/commission members are filed, they are reviewed in private by members of the Board of Ethics to determine whether there appears to be any conflict of interest with respect to the board/commission member's financial interests and obligations and the board/commission he/she has been appointed and confirmed Honorable Pete Honn and Members of the Hawaii County Council August 6, 2007 Page 7 to serve on. In the event there is no conflict of interest found, the financial disclosure is filed away with the Board of Ethics, and it is not available for public inspection (See Code Section 2-91.1(e)). We fully appreciate Council Member Bob Jacobson's comments before the Council's Public Works and Intergovernmental Relations Committee on July 24, 2007, wherein he stated that he often "listens" to the recommendations of advisory boards and commissions prior to making his decision as a Council member. However, absent any authority in our laws that would make the recommendations of advisory boards and commissions binding on either the administration or legislative branch of our government, it is our considered opinion that on balance, an individual's right to privacy outweighs the government's need to know and collect this information. Even if this information were required and collected, there is no guarantee it would eliminate every instance of a potential conflict of interest No doubt some members of the Council may be concerned of the situation where an individual with a financial interest in a certain business or enterprise may arguably exercise undue influence in an area of County concern, even involving aboard/commission with advisory authority only. As an example, say a member of the Arborist Advisory Committee, a purely advisory board, has an interest in a local cafe on Hawaii Island. The Committee seeks to determine whether an existing exceptional tree should be removed from the present County list. The board member's cafe would benefit from such removal, as it would allow the cafe to eradicate this very tree that sits directly in front of the cafe, which presently obstructs the view of the cafe and its sign from the public roadway. Thus, removal of the tree from the County's list and from in front of the cafe benefits the board member. In the above scenario, the board member should clearly divulge his interest to his fellow board members, and consider recusing himself from the vote on the matter. Unfortunately, there are no "ethics police" hired by the County. Government ethics is primarily aself-governing business. This is where we simply must count on those members of the public entrusted with the duty of serving in our County to do the right thing. This is why the selection, appointment and confirmation process of board and commission members is very important; it is absolutely critical for all of us to ensure those persons with the highest degree of moral character are selected to serve in our County government s e We also recognize it is critically important that our office provide adequate ethics training for all new board and commission members, irrespective of whether they serve on advisory boards or commissions or not. . Honorable Pete Hofffffann and Members of the ~ Hawaii County Council August 6, 2007 Page 8 In the above case, the Board of Ethics (who would presumably review the financial disclosure), would be without the benefit of clairvoyant foresight to see future events, so they would not "flag" the board member's financial interest as a conflict. Our laws presently provide that financial disclosures of all board and commission members are private personal records not open to the public for inspection. The records would be filed away, and there would be no present practical way for anyone to know that there was a potential conflict of interest. What this means is simply this: Unless the board or commission member with a potential conflict of interest has the good sense and judgment to raise the issue via a disclosure at the time the issue ripens, there is a possibility the conflict will never be divulged, irrespective of whether there is a financial disclosure form on file or not. This is because the financial disclosure forms are protected by law from public inspection. However, this is not to suggest there is a loophole in our laws that allow for the unethical corruption of the operation of our County government. The recommendations of advisory boards and commissions are just that: advisory. We view these boards and commissions as fact gatherers for the ultimate decision maker, either the Mayor or Council. If such were not the case, there would be no need to have a Mayor or Council; these boards could simply make their decisions and do as they see fit. Clearly this is not the method of policy formulation and governance in our society and County. Further, advisory boards and commissions have their place-to simply advise the ultimate policy makers. For this reason, there is a recognition that undue influence, in the event it occurs, is of limited import and concern. The facts are the facts, and advisory boards and commissions simply assemble these facts for either the Mayor or Council. Based on this, there is not as great a compelling interest on the part of government to collect and store personal financial information from board/commission members whose powers do not extend beyond fact gathering. In sum, our present effort is to simply make our Code and Charter consistent with one another so as to avoid an unnecessary inconsistency in our laws. A final consideration: Unintended consequences We wish to point out to the Council something that may not have been obvious upon the initial reading of Bill 132. At present, board and commission members belonging to advisory boards and commissions created by the Code are not subject to the requirements of the Code of Ethics. This is because they are not "officers" as defined by the Code. ` -M1 Honorable Pete Ho~nn and Members of the ~ Hawaii County Council August 6, 2007 Page 9 Again, our laws appear to recognize that citizen volunteers who have advisory powers only should be treated differently than those board and commission members who perform adjudicatory functions and who may make final, binding decisions on behalf of the County. Assuming Bill 132 passes, board/commission members who belong to Charter-created boards/commissions with advisory powers only will similarly not be subject to our Code of Ethics. I wished to place this in the public record and domain prior to the next formal reading of this bill so there is no ambiguity as to what the consequences will be, if the Council passes this amendment to our Code. Again, we fully recognize the sentiment of some members of the Council who feel financial disclosure is desirable or necessary for all board and commission members, whether advisory or not. Whether the Council chooses to later seek revisions to our Code and Charter so as to require all board and commission members, whether they belong to a board/commission with advisory powers only or not to file a financial disclosure is a completely separate and distinct issue. Our office has offered our comments above concerning the need to balance the government's right to know and collect this information against an individual's right to privacy, but will respect whatever decision the Council makes in this regard. Thank you again for your previous favorable support of this bill. Please contact me if you have further questions, or require further documentation or information. Very truly yours, LINCOL~~~ ' ~ N S• T• ASHIDA Corporation Counsel Encl. c: Honorable Mayor Harry Kim (w/encl.) Honorable Casey Jarman, County Clerk (w/ encl.) Corporation Counsel Attorneys (w/ encl.) S: DepartmentslCounciVLSA Corresp.ANRK 06-13494 Lerier to Council 7.37.07/LSAmr Board of Ethics Minutes of Regular Session January 10, 2007 BLT: It is one of the reasons why I went to atwo-column approach, to make it more readable. AL: We are asking this woman who has all this knowledge of the law to suddenly become a book designer. RW: Do you want illustrations? AL: She does. BLT: On the first page I left room for something there. I might ask my husband to draw something for me, because he does comic stuff. AL: This is good. I like the way this is going. • BLT: Okay, great. AL: So, this is also deferred now? BLT: Yeah. WJ: Yes, just continued Unfinished Business. AL: Do we need to do anything about this, except compliment her on this incredible job. (Mr. Ashida failed to attend the Board meeting. The chair directed the board to return to Communications.) 4. COMMUNICATIONS (CONT.): (b) Communication No. 2007-04: Letter from Lincoln Ashida dated January 4, 2007 regarding Hawaii County Code Section 2-82. WJ: Let's go back to Communications and ask if you want to do anything with it or do you want to just defer it and ask Lincoln to come to our next meeting and do his presentation. RW: Yes. WJ: Shall we just defer it to our next meeting and ask Lincoln to come and explain? RW: If he doesn't come at that point then we can take action. BLT: I think on the destruction of records you may want input from him (Communication 2007-OS). On the other one (Communication 2007-04), that is self-explanatory. 16 Board of Ethics Minutes of Regular Session January ] 0, 2007 He is just informing you that he is going to be sending something to the County Council to make an amendment. WJ: So there is nothing for us to act on. BLT: Well, if you think it is a good amendment you may want to send a letter to the County Council saying that you support the amendment because it makes it consistent. Motion and Vote: Mr. Williams moved to accept and transmit a letter of support to the Council in support of this initiative; Ms. Kendall seconded the motion; all members voted aye, motion carried. (c) Communication No. 2007-05: Memorandum from Lincoln Ashida dated January 2, 2007 regarding HRS Chapter 487R. Motion and Vote: Mr. Williams moved that the Board defer to allow Corporation Counsel to further comment; Ms. Lum seconded the motion. Discussion: KS: They're asking for our assistance for providing information on present policies and procedures, in our discussion on our rules of practice, we said there were some things that were conflicting, things that weren't being done, we weren't sure. We had a discussion, so a statement could be drafted according to that, unless we misinterpreted what he wants, and we want to hear what he actually wants. RW: That is why I moved to defer to allow him the chance to make his pitch. If he doesn't show then we will just act on it. JW: That would be a good idea to give him the opportunity to explain this. There is a motion on the floor, we did get a second. Are we done with discussion? KS: Yes. JW: All in favor say aye. All members voted aye, motion carried. 7. EXECUTIVE SESSION Motion and Vote: Mr. Williams made a motion to move into Executive Session; Mr. Inouye seconded, all members voted aye. 17