HomeMy WebLinkAboutCOM 0758.002 2008-2010Honorable J Yoshimoto
Chair, Hawai`i County Council
25 Aupuni Street
Hilo, Hawai`i 96720
BOARD OF ETHICS, County of Hawai'i
101 Aupuni Street, Suite 325, Hilo, Hawaii 96720
Re: Bill 230
Dear Chairman Yoshimoto:
April 7, 2010
BOARD COMMENTS
1. Article 15, section 2 -82 - Definition of "Agency"
The Board had no comment to this proposal.
2. Article 15. section 2 -83 Fair Treatment - Contracting for goods or services
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At the Finance Committee meeting of April 6, 2010, the Committee was informed that
the Hawai`i County Board of Ethics reviewed Mayor William P. Kenoi's proposed ethics
amendments, took verbal and written public testimony on the proposed amendments, and
submitted its recommendation to Mayor Kenoi. The Committee asked that the Board of Ethics
provide it with their comments to Mayor Kenoi's proposed amendments. The following
summarizes the Board's comments to those proposed amendments.
The Board believes that this proposal may be too restrictive because it prohibits
contracting in all situations where there may not be any direct or indirect influence by and
between the contracting party and the County agency. For example, the child of a County
employee would be barred from contracting as a lifeguard. The proposal would also prohibit
contracting even where the prospective contracting party has been awarded the contract in
accordance with the State procurement procedures for contracts in excess of $10,000.
One way to address any appearance of impropriety is to prohibit contracting between an
officer and employee and that officer or employee's own department. In other words, County
employees, their spouses and their children should not be prohibited from contracting with the
This proposal would prohibit County employees, and businesses in which County
employees, their spouses or dependent children own a controlling interest, from entering into any
contract with any County agency.
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Ref. Date APR 0 7 'into
Honorable J Yoshimoto
Chair, Hawai`i County Council
April 7, 2010
Page 2
County if the contract is with a different County department than that in which the officer or
employee currently works. In such a situation, the appearance of impropriety is minimized.
Another way to address any real or perceived conflict is to adopt a contract procedure
that the State of Hawai`i uses which requires the contracting party to certify that there is no
conflict of interest as set out in the State Ethics Code. For example, when persons or entities
enter into a contract with the State, they must certify that:
• they are not a legislator or an employee or a business in which a legislator
or an employee has a controlling interest (Section 84- 15(a), HRS);
• they were not represented or assisted personally in the matter by an officer
or employee who was an employee of the agency awarding the contract
within the preceding two years (Section 84- 15(b), FIRS);
• they were not assisted or represented by a legislator or employee for a fee
to obtain the contract, and will not be assisted or represented by a
legislator or employee for a fee in performance of the contract (Section
84- 14(d), HRS); and
• they were not represented on matters related to the contract for a fee or
other compensation by an individual who, within the last 12 months, was
an employee and participated in matters related to the contract (Section
84 -18(b) and (c), HRS.
Should you proceed with your proposed language prohibiting all contracting by and
between a County officer and employee and any County agency, may we suggest that such a
provision be placed in the "Contracts" provision of the Hawai`i County Code, rather than the
"Fair Treatment" Section and that the attached language amending the "Contracts" provision
(section 2 -85) be considered as it addresses some of the concerns raised above, and others
discussed during the Board's public meetings.
3. Article 15, section 2 -84 Conflicts of Interest
This proposal adopts language prohibiting any officer or employee from appearing on
behalf of private interests before any County agency except as otherwise provided by law, and
included some narrow exceptions to this prohibition.
The Board believes that this proposal may be too restrictive in a small community such as
ours. The Board was concerned that the language could be construed to prohibit an officer or
employee from appearing before other County agencies on purely personal matters, unrelated to
their job duties. For example, one board member worried that this may be construed to prohibit
her from appearing before the County Council to object to a development that could affect her
neighborhood.
Hawaii County is an Equal Opportunity Provider and Employer
Honorable J Yoshimoto
Chair, Hawaii County Council
April 7, 2010
Page 3
4. Article 15, section 2 -85 Contracts
This proposal deletes Hawai`i County Code (HCC) §2 -85(a) because all contracting
would be prohibited. Based upon the concerns addressed above, the Board believes the existing
code provisions should remain.
The Board agreed that the term "is" was inadvertently not included and this section
should be amended to include the term.
At the April 6, 2010 Finance Committee meeting, the Committee was also informed that
the Board was in the process of finalizing a bill that would do two things: 1) respond to the
Mayor's desire to prohibit all contracting by County of Hawaii officers and employees, and at
the same time, address the Board's concem that exceptions should be recognized in certain
situations; and 2) provide its own suggested amendments to the Ethics Code that are unrelated
to Mayor Kenoi's proposed amendments. Attached please find the language in draft form.
Please forward the attached communication to the appropriate committee for
consideration. Thank you for the opportunity to provide input on these important amendments.
Please call me at 961 -8251 should you have questions.
Attachment
cc: Board of Ethics
Sincerely,
g ic r- John E.K. Dill
Chair, Hawaii County Board of Ethics
Hawaii County is an Equal Opportunity Provider and Employer
COUNTY OF HAWAII
AN ORDINANCE AMENDING CHAPTER 2, ARTICLE 15, OF THE HAWAII
COUNTY CODE 1983 (2005 EDITION, AS AMENDED), RELATING TO THE CODE
OF ETHICS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
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SECTION 1. Chapter 2, article 15, section 2 -85 of th9:L 11.'i County Code 1983 (2005
,igp;iiy yr oll,tii,l,o,
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Edition, as amended) is amended to read as follows: a 'I cr!''''
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ORDINANCE NO.
STATE OF HAWAII
BILL NO.
"Section 2-85. Contracts. lIE
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j) A County agency shall not entet+14 to any contract with an o ber, an
employee, the officer or employee : sfbling, �taIeiif; child or spout or a
• business in which the officer or an emM eW6" � II]'1'is sibling, parent, child or
spouse has a controlling u1t, I rest unless: '^`'f
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(1) The contract is wi u �s: �n� de p .I artm'g1hY'iother than the department
for which the officer ":1' "' °u' ° em.lo "'i
2 The contract p is for S.e au klbs .f th& awai'i Coun Police
De art t� II A ^I ,;lp ^
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PI 10 in (3) Me i{nty acetic), or of I)or employee obtains approval by the
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of Ethics t " p ' l e'nter into h contract; or
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ntract is , „r dad in acc't7 lance with subsection
[(a)](b1 A Courl y a } e o 1i'ni into any contract involving services or
r e of ' �I "in excess be I ;'000 to procure or dispose of goods or
N :Inv e v1 ; , for for' ry }t truction with an officer, an employee, or a business in
which a '* er ot;l has a controlling interest unless:
(1) The coz4ct is Warded by competitive sealed bidding pursuant to the
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state ubfi �procurementcode•
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il';i{r2 The contra�lis awarded by competitive sealed proposal pursuant to the
" '" state rocurement code; or
e ag ;' posts a notice of its intent to award the contract and files a
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6 j' e notice with the County board of ethics at least ten days
befM'1 "'' the contract is awarded
[(49)](c) A County agency shall not enter into a contract with any person or
business which is represented or assisted personally in the matter by a
person who has been an employee of the agency within the preceding two
years and who participated while in County office or employment in the
matter with which the contract is directly concerned."
SECTION 2. Chapter 2, article 15, section 2 -91.1 of the Hawaii County Code 1983
(2005 Edition, as amended) is amended by amending subsection (a) to read as follows:
"(a) Definitions. The following words used in this section shall have the
respective meanings in this section:
(1) "Candidate" has the meaning given it by section 11- 191(3), Hawaii
Revised Statutes;
(2) "Elective" means all elective offices of the County �I II;�Hawai`i;
(3) "Income" means gross, income defined by sect;gl'' iil of the Internal
Revenue Code of 1954; '� P'�It
(4) "Regulatory employee" means:
(A) Any employee with inspection dutch nd an)"supervisor of one
or more employees with inspection "i]uties ortinip.agency of the
County, which shall includolit ;l"'fiot be limtted planning
department, the departmer l dpublic works and tliP apartment
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of environmental mana • :r� ant•
B Supervise, �I ' 1 i I al. ..
[( AM p ontrol in(eshgators;
[(13](Q Liquor con 1pnves rs 1 qll'
111�u �lll, §.
[(E)](1 . 99 +B asu
''�If�l i. I �hla r, M i,, ,
[(F)] 7 g13'�uyers and p
'�S-b'P,� m, isors of 'a ' party tar aappraisers;
[(Fi perty tai
Plann employe
4' raisers;
' d k the planning department;
[ 1IF .__.. Su `s of ms rs employed b the department 9 1 by artment of
P
](` ' ° "iectors e the department of water supply;
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t�p ] legislative auditor."
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stair 3. Chapt p, article 15, section 2-91.3 of the Hawail County Code 1983
(2005 Edit on iOtunended)1,! lamended by amending subsection (e) to read as follows:
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"(e) All statetti nts and forms required by this section to be filed with the
County clerk:
(1) Shall be deemed properly filed when [delivered] electronically or hand
delivered to the County clerk with proof of receipt or deposited in an
established post office within the prescribed time, duly stamped,
registered, or certified, and directed to the County clerk; provided,
however, in the event it is not received, a duplicate of the statement
shall be promptly filed upon notice by the County clerk of its
nonreceipt; and
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(2) Shall be preserved by the County clerk and shall constitute part of the
public records of the County clerk, and shall be open to public
inspection pursuant to section 92 -51, Hawai`i Revised Statutes."
SECTION 4. Material to be repealed is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed and stricken material,
and underscoring need not be included.
SECTION 5. If any provision of this ordinance, or the,l, it ion thereof to any
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person or circumstance, is held invalid, such invalidity shall not provisions or
a .p 1111 i 1ai:,l
applications of the ordinance which can be given effect Rout the invalid'!Iptoyision or
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application, and to this end, the provisions of thi$�,p ,, itance are declared to be'seV
SECTION 6. This ordinance shal take effect tip
1 'vi:m.
Date of Intro
B4tu,1n
Date o 11;
att ! i 1 . ;,7iIW ; , ,
Date; d Reading: 'o'Ih9
Eff e, Date: irelll
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3
A y i 'r
'approval.
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CIL MEMBER, COUNTY OF I- IAWAI`I