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HomeMy WebLinkAbout2019-07-15 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Monday, July 15, 2019 10:00 a.m. to 11:02 a.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai`i 96720 Members and Staff Present: Rick Robinson, Chair David Wiseman, Vice Chair Nan Sumner -Mack, Member Lawrence L. Heintz, Member J Yoshimoto, Deputy Corporation Counsel Maria Pagala, Secretary 1. CALL TO ORDER (10:00 a.m.) Mr. Robinson: Okay we'll call ourselves to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:03 a.m.) Mr. Robinson: Statements from the public. I have one public statement registration form from Cory Harden. Is she here? Mr. Heintz: She's outside. I see her. Mr. Robinson: Okay. Ms. Harden: Good morning and thank you folks for your service on the Board. Cory Harden speaking for myself And I'm first talking about 5 a. the petition about Ashley Kierkiewicz. Mr. Wiseman: Mr. Robinson: Excuse me Ms. Cory. Point of order Mr. Chairman. As far as I recollect, that we finished the hearing on...we finished testimony hearings and we made a decision subject to a written decision being published. So I'm a little confused as to hearing more testimony on the issue of the petition. I understand. Let's give Ms. Harden her time but understand that the petition has already been submitted and we've already made our decision... Ms. Harden: Yeah. I understand, but I haven't seen the petition and it wasn't...I haven't seen your fine...the way your final decision is written out. 1 Mr. Robinson: Ms. Harden: I have the... I was at the last meeting and I heard the discussion and I saw the minutes but I'm still not sure what exactly is in the final. So I'm saying what I hope will be in the final decision. Okay, we'll listen to you Ms. Harden. Just please go ahead. Okay so...I hope you'll have more than just a ruling that there was an ethics issue. I'll hope you'll do guidance set a precedent for the future. Cause in this situation, the Council Chair didn't think there was a problem and the Council didn't seem to think there was a problem either. And people were saying...oh once there's a issue, the Council should figure out what to do. But they didn't figure out what to do. And what's at stake here was water resources which are public trust. There was possible plastic pollution that threatens animal and human life. And at stake also was the confidence of the public and people representing them. And the bottling company ended up going to court. So it may come to County Council again. So I listed three things I hope will be in the final written opinion. (1) Ms. Kierkiewicz should have disclosed her connections with Mr. Ueda in writing. Should have asked someone else to introduce Bill 16 and Chair the planning committee meeting on that bill. And recused herself from voting. Though I think it was fine if she took part in the discussion on Bill 16. Second thing I hope you'll advise that Ms. Kierkiewicz in the future should refrain from introducing bills and chairing committees if the outcomes would benefit clients that she worked with at Hastings and Pleadwell. And she should make disclosures when she's taking official actions that involve her past clients at Hastings & Pleadwell. And third thing, I hope you'll say that County Council, when they learned of the conflict of interest, should have advised Ms. Kierkiewicz of the proper actions. And should have redone the meeting and then Councilmembers and testifiers would have the benefit of the full awareness of the conflict of interest. And then on agenda item 7...your rules...I hope you can make more information available to the public. As I said, I don't have a copy of the draft opinion. And then the public can't provide meaningful testimony to perhaps inform your decision further. And also at your April 22 meeting, the petitioners could not see Ms. Kierkiewicz's March 18 response letter beforehand. And petitioners, rightfully said we'd want some time to think about thoughter and our response. So everyone had to come back again for another meeting. And it took two months to schedule that so...I hope you can work on that. And I saw something in the rules that you have to actually go to the 2 3. a.m.) Mr. Robinson: Corporation Counsel office to view documents. And that that can be very burdensome for people traveling. So thank you for considering all this. Thank you Ms. Harden. Are there any other statements from the public? APPROVAL OF THE REGULAR SESSION MINUTES OF JUNE 10, 2019. (10:07 Mr. Robinson: Mr. Wiseman: Mr. Robinson: Mr. Wiseman: Mr. Robinson: Ms. Sumner -Mack: Mr. Robinson: Next item on the agenda, approval of the regular session minutes from June 10, 2019. I think we got those a little late. Has everyone had a chance to review those? No. Would you like to take time to review them or can we move them to our next meeting to approve those? I make a motion. Move them to our next meeting. Is there a second? Excuse me. Is that better than approving provisionally? Could we approve provisionally? It's better if we can move them. Ms. Sumner -Mack: Okay. I'll second the motion. Mr. Robinson: Okay, it's been moved and seconded that we move the approval of the June 10th meetings to the next meeting since we received these late and didn't have a chance to review them. Is there any further discussion? If not, all those in favor say aye. Contrary minded. Okay. Motion and Vote: Mr. Wiseman made a motion to move approval of the June 10, 2019 minutes to the August meeting. Ms. Sumner -Mack seconded the motion. All members voted aye. 4. NEW BUSINESS (10:08 a.m.) a. Review of gift disclosure statements received from Mr. Robinson: Do we have those? 3 Mr. Heintz: Mr. Robinson: Mr. Wiseman: Mr. Yoshimoto: Mr. Robinson: Mr. Wiseman: Mr. Yoshimoto: Mr. Chairman. Do we do that normally in executive session? We can do these in regular session. Gift disclosure. We can discuss these...anybody has any concerns or questions...we should discuss those in public. Since they are gift disclosures for our County Councilmembers. Whereas the financial statements that we do in executive session are confidential. Is it more than $50 they have to report? 100. 100. 100 or more. Either singly or in aggregate from one hundred. Ms. Sumner -Mack: You forgot to have us introduce ourselves. Mr. Robinson: I'm sorry. I just felt like ole' home week. Everybody here we know. Ms. Sumner -Mack: Everybody knows everybody. Mr. Robinson: Mr. Heintz: Mr. Wiseman: Mr. Robinson: Yeah. Did we need a motion to accept these? Okay. I so move. Second. Okay, it's been moved and seconded that we accept the gift disclosures of Valerie Poindexter, Rebecca Villegas, and Susan Lee Loy. Is there any further discussion? If not, all is in favor say aye. Contrary minded. Motion and Vote: Mr. Heintz moved to accept the gift disclosures. Mr. Wiseman seconded the motion. All members voted aye. 5. UNFINISHED BUSINESS (10:11 a.m.) a. Petition No. 2019-01 Mr. Robinson: J, I'll have you present. 4 Mr. Yoshimoto: So Board Members what you have before you is the draft informal advisory opinion. We can take this opportunity to review the document and if you have any questions, comments, suggestions, we can make those changes now or if you additional time, then we can do that as well. Mr. Wiseman: Isn't this a matter for executive session though? Mr. Yoshimoto: It could be if... Is there something you want to discuss with me in terms of the attorney client privilege then we would go into executive session after a motion is made. Ms. Sumner -Mack: I just think we need more time to think about it. To read it, at least. So when would we discuss it...at the next meeting? Mr. Yoshimoto: Yes. So now would be a good time to have any questions... Mr. Wiseman: Mr. Yoshimoto: Can we...are we authorized to take action without a meeting? For example...if we were to...if there was a motion, prove to take the draft decision with us and submit a...electronically submit our comments to you within a few days or within a week's time? And then for you to send a redraft out. And if everyone approve that, could we approve it...electronically? We could. Although I would be concerned about any other follow- up questions with the comments. So my suggestion would be that we would still have another meeting to finalize whatever... Whatever changes are made or suggested. Mr. Wiseman: Okay. Mr. Heintz: Mr. Chairman. The minutes of our meeting indicate that the Members of the Board would have an opportunity to review the drafted petitions and to make changes and input. And we haven't been able to do that. So that's one concern I have. And the second concern I have is...at the last meeting I indicated that I thought there were at least three other...if not four other issues that we need to address...which we did not address because our...this petition only talks about disclosure. And were questions of recusal, which were not addressed but were discussed and it was suggested by the previous Chairman that the question of recusal would be appropriate for the Council to discuss. But since this... the Councilmember Kierkiewicz did not disclose formally and to my knowledge she still hasn't disclosed formally. That is to say is required in writing. That that the Council didn't have the information before it to consider recusal and we didn't consider 5 recusal. And so I'm not at all happy with how we've handled this. I would be suggesting that our, that our, that...one of two things. Either we address this petition and then separately address the question of recusal. Or the question of recusal be folded into this. And questions of impropriety, trust in government, all those issues were before us and we did not address. And I just feel...I'm a new Member of the Board here but...I just feel like the process...the way we're running the process doesn't allow us to thoughtfully and carefully work through the issues. And I suspect there's a little of that in what David's suggesting as well. I just thought I'd air this. Thank you. Ms. Sumner -Mack: I agree with Larry. I think we...well I don't know if he's exactly said this...but I think any discussion, any comments and so on should be made in...in camera...in a meeting. And not done outside. I don't think that... Unless we have a special meeting. An interim meeting. I'd be happy to come to one but then I don't live far away. So I agree. I don't think any kind of...you know...making it happen faster by doing...cutting corners. Mr. Wiseman: Mr. Robinson: Mr. Wiseman: I would concur with Larry. With respect to...number one...have more time to go over it. Okay. And then perhaps we just need to finalize it at the next meeting. However, I wouldn't want to separate any issues. I would want...recusal and anything else that we deem appropriate. I would want in one...in this final decision. And I don't think there's any real urgency or rush because we've made a verbal decision that...that stands official. Cause as we know, the newspapers published it too. So a final written decision is not...it's not untimely to have it another month or so. If I could you know, one of the things about this is...the informal advisory opinion when it's issued by us... But I think that we as a Board should then go to the County Council and share with them this advisory opinion as well as our thoughts regarding...all the other items pickley as to faith in government. And I'd like to see us as a Board...go to the County Council and present the final advisory opinion and share with them our thoughts regarding that as well. I think that would be important for them to hear. Instead of just getting something that's item 32 on the agenda that they file away. Is that something that my fellow Board Members would consider? Yeah. I would... I think that would be productive for the Council to hear it. And I think first thing's is first. We have to agree on a final decision. 6 Mr. Robinson: Ms. Sumner -Mack: Mr. Wiseman: Mr. Yoshimoto: Mr. Robinson: Mr. Wiseman: Mr. Robinson: Mr. Wiseman: Correct. Is it fair to assume that we would make this our final decision. Or is the subsequent meeting going to encourage comments and some changes in the language. What about the communication. I mean if we can go back and forth with different comments in the email. I'm not talking on making final but...other than just to the discussion. I mean we definitely need more time. Okay. So let me take a couple of steps back. So at the last meeting on June 10th. The Board...on the issue of recusal...you know the Board indicated that it was not going to address that issue, so my concern is...is that, unless we have something like a motion to reconsider our...the Board's decision...we're not able to supplement the record so to speak. So if we want to do that, I would suggest we reconsider the Board's findings. We need to re - notice the parties. And then have further discussions on what the Board wants to include in it's findings. Because if it's going to change of deviate from what was decided upon June 10th, then I think we need to make sure that everyone has their opportunity to be heard. So it might take more than an additional meeting but I think sounds like the Board wants to continue to address issues that it did not on the June 10th meeting. And please correct me if I'm misunderstanding. So you mean. In essence, reconvene the hearing and...? It's only if...it's Larry's concern that it should include recusal. I don't agree with that. Or is that something we could address with the Council when we're there presenting our advisory opinion. So to me the comments we made verbally in our decision as well as what will be in writing so far in draft and maybe to be strengthened. They definitely imply a recusal option. A recusal mandate. I mean it's impliedly stated. And not that I wouldn't want it in there. But at the time, the effort, the expense of going to another like you say...to have the right procedure to...put that in there. We would have to go through a whole new procedure and I'm not in favor of that. Mr. Heintz: My concern was toward the end of our last meeting. David indicated that he had comments he wanted to make to address. Mr. 7 Ms. Sumner -Mack: Mr. Robinson: Mr. Heintz: Robinson also made comments about trust in government and confidence and impropriety. And that those questions were going to be included in the draft. And I've read the draft and I don't find them there. Those were going to go towards what David just mentioned. Addressing recusal to at least to some extent. What we have doesn't address it at all. And I'll accept that the Board may not vote to address that...but at least I think we need to address it and vote whether or not we're going to included that. Just as it is, it's unsatisfactory to me. I'm happy to make a motion that we reopen the discussion of this issue to include a discussion of whether or not Council person Kierkiewicz should have recused herself and whether she needs to disclose in the future any bills or legislation that involve Hastings, and her work at Hastings & Pleadwell. And at least disclose...address a question of disclosure. If that's a motion, I second it. I think this is a very crucial, important matter of public trust. And I think it belongs in...if it's not implied in the rules and so on. It should be...it should be emphasized. I think we need to...anyway I think we opening it...I think it was worth reopening and reconsidering that particular obligation. Okay just so I understand the motion, Nan, is to reopen the hearing? Go back in and have a...reopen the hearing and... If that is what J is suggesting we would have to do. I mean in fairness to the both the petitioners and the respondent. I mean they think the issue is closed. We've said what we had to say and we weren't going to address recusal. But...but we were going to...in our meeting it did say we were going to address it obliquely at least or by inference. And that didn't happen. If that can be explicit enough, maybe that will satisfy us. Mr. Robinson: And so, Nan, if I understand it, then your second is to reopen the hearing as well? Ms. Sumner -Mack: If that's what he meant. If that's necessary according to the rules, then so be it. It's an important issue. Mr. Yoshimoto: Why don't we do this then? Before we go any further. Why don't we have an executive session discussion regarding the legal opinion that we're going to be issuing? And then we can have that discussion today. Then we can decide how to move forward. Mr. Heintz: Thank you. 8 Mr. Robinson: Mr. Heintz: Ms. Sumner -Mack: Mr. Robinson: Mr. Wiseman: Mr. Yoshimoto: Mr. Wiseman: Mr. Yoshimoto: Mr. Robinson: Mr. Yoshimoto: Mr. Robinson: Mr. Yoshimoto: Mr. Robinson: Is there a motion for executive session. I so move. I'll second. So moved and seconded that we adjourn to executive session. All those in favor say aye. I say aye, subject to one comment that with respect to the motion and if this is executive session material. J, let me know. But with respect to the motion...I understand is request for recusal, which would require reopening...perhaps reopening the hearing. Subject to the counsel's opinion. In the other one...disclosure. Disclosure, I think was made clear and can be made clear without...I mean that was really a verbal ruling. Okay. I don't see a new hearing required to discuss disclosure. Oh so we can... Why don't we... For the record, the motion is to go into executive session pursuant to HRS 92-5(a)(2), (a)(4), 92- 6(a)(2) to consult with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities and liabilities. May also consider evaluation, dismissal, and disciplining of an officer/employee of the County of Hawaii. That's what I meant. So make sure the record is clear. Okay. Thank you. And there was four votes in favor. Correct. Yeah. Okay. Alright we adjourn regular session. Go into executive session. Thank you folks. Motion and Vote: Mr. Heintz moved to go into executive session. Ms. Sumner -Mack seconded the motion. All members voted aye. 10:26 a.m. The Board moved into executive session. * 10:41 a.m. The Board returned into regular session. 9 Mr. Robinson: Mr. Wiseman: Mr. Heintz: Mr. Robinson: Ms. Sumner -Mack: Mr. Robinson: Mr. Heintz: Mr. Wiseman: Mr. Robinson: Mr. Heintz: Mr. Robinson: Mr. Heintz: Mr. Robinson: Ms. Sumner -Mack: Mr. Robinson: Mr. Yoshimoto: Mr. Robinson: Okay we'll go back to regular session. Thank you folks for being patient with us. Alright we had a motion to reopen the hearing and a second. That was your motion. I want to withdraw that motion and make a different motion. Okay. Let's deal first with the motion. So your motion...or you're saying you want to withdraw that motion. And you want withdraw your second. Yes of course. Okay. Alright so that motion is kaput. Now... My new motion is that we continue until the...I believe it's a July 14th meeting to... August. August 14th Oh it's August 14th. I'm sorry. To review our draft informal advisory opinion. With language regarding recusal as well. With language about trust in government and the question of recusal. So that it's not simply about the question of disclosure. Is there a second to that motion? I'll second it. Any further discussion on the motion? Alright the motion is to move the voting on the advisory opinion...informal advisory opinion to August the 14th for further redefinition within the opinion regarding recusal and trust in government. All those in favor say aye. Contrary minded. Okay. So we will move until August the 14th which is a Wednesday, 10 o'clock. J you won't be here but another attorney from your office will be. Yes. Yeah correct, thank you. 10 Motion and Vote: Mr. Heintz moved to continue review of draft informal advisory opinion regarding Petition 2019-01 to next meeting in August. Ms. Sumner -Mack seconded the motion. All members voted aye. Mr. Robinson: All right. I'm so sorry but next item on the agenda is executive session. I'm so sorry. Is there a motion to go back into executive session? Mr. Heintz: So moved. Mr. Wiseman: Is there a need to go back? Mr. Robinson: We have three items to review. Ms. Sumner -Mack: I haven't read those either. I haven't had a chance to read those either, so can we postpone that until next session? Mr. Robinson: What these three Zendo, Isabella, and Vincent... Ms. Sumner -Mack: No the review of the executive session minutes of June 1 Oth Mr. Wiseman: Well the minutes, yeah. Mr. Robinson: Well we can deal with that in executive session. Okay it's been moved and seconded that we go into executive session. All those in favor say aye. Motion and Vote: Mr. Heintz moved to go into executive session. All members voted aye. 10:45 a.m. The Board moved into executive session. * * * * 10:56 a.m. The Board returned into regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS (10:57 a.m.) a. Review of the executive session minutes of June 10, 2019. Ms. Sumner -Mack made a recommendation to move the approval of the June 10, 2019 executive session minutes to the August 14th meeting. 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. 11 All members initialed and approved the financial disclosure forms. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII. (10:57 a.m.) Mr. Robinson: Mr. Yoshimoto: Next item on our agenda is discussion regarding amendments to the rules and practices and procedures of the Board of Ethics. Did we ever get that done? We did as a preliminary matter we did, however you know I've been taking a look at those rules and I actually have a lot of changes to the proposed rules. So what I would suggest is that we continue to agendize it. I'm gonna make those changes and then present them to the Board. And you know the initial thought in the past was...was that we were gonna wait for the Charter amendment question to be voted upon by the voters in respect to the penalties authority. Previously I'd advised this Board that we already have that language included in the Charter, but the Board wanted to suggest further specificity as to the Boards authority to issue penalties or fines. So that's going to be on the 2020 ballot. So what I'm getting to is this. I still think we can amend our rules before that vote is taken. But I think the Board had already indicated a preference to wait until after the 2020 election. And case and point is when we have a questions regarding the...how we process our documents in terms of confidentiality. We have a rule basically says that all of our documents are confidential until presented in an open hearing to the Board. So that could be modified if the Board so chooses. But anyway, the rules are there. I do have a lot of changes. I can present them. They're not complete yet. But we can agendize this whenever the Board feels like it wants to do that. Mr. Robinson: When do you think you'd be able to present them? Ms. Sumner -Mack: November? Mr. Robinson: We have September 11th for our next meeting. Mr. Yoshimoto: Yeah. Cause I'm not here on September 11 or October 9th so November would be a good time. Right? But I can get similar to 12 this I can get those rules as soon as I'm done to the Board Members for review. Cause this is going to be a lengthy review where we look at it in detail. Cause this is gonna be a huge update from 1990. Mr. Robinson: Okay. Mr. Yoshimoto: Mr. Robinson: You know and there are concerns about how we enter executive sessions. I'll share an opinion that was recently issued by the Hawaii Supreme Court in terms of executive meetings and what process we need to go through them and I can agendize that for another meeting too...to discuss that as well. There's a lot of catching up to do but that's my thoughts. If the Board is willing to review them, I think we can do that. I don't think there's anything prohibiting. And now of course if the voters should decide not to approve that Charter amendment, then that would actually conflict with our rules, then we'd have to revisit it. But you know I...we can't predict that right? So we wait or we can just push forward and make changes if necessary in the future. Board, any comment regarding this or is everyone okay with that? We continue to agendize this and J will be preparing for us further amendments. Mr. Heintz: Yeah, that's fine. Mr. Yoshimoto: So for the purposes of August and September, I don't think we need...August, September, and October, we don't need to agendize it unless you want to. Otherwise we can put it back on for November. Mr. Robinson: Is everybody okay with that? Mr. Wiseman: I'm fine with that. Mr. Yoshimoto: November. Mr. Robinson: Go with November. 8. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (11:01) Mr. Robinson: Next item on agenda. Our meetings are on Wednesday. That's when we're obligated to meet, correct? 13 Mr. Yoshimoto: Correct. Mr. Robinson: And we scheduled those for the rest of the year correct? So everybody has that Wednesday, 10 o'clock in here or some other location? Mr. Yoshimoto: So we're good. Yeah. Mr. Robinson: So we don't need to keep putting that discussion regarding changes. Just announcement of the next Board meeting. 9. ANNOUNCEMENTS (11:01 a.m.) Mr. Robinson: So our next Board meeting is August the 14tH Mr. Heintz: Yes. Mr. Robinson: Does anyone have anything else? Mr. Heintz: Mr. Chairman, just regard to meetings. I know that I won't be able to be here on October... for the October meeting. I don't know if that's germane or not but just to let you know. Mr. Robinson: Okay. Mr. Heintz: They have a quorum. Ms. Sumner -Mack: What's your excuse? Mr. Wiseman: I won't be here for the September meeting. Mr. Robinson: What September meeting...September 11th. Okay. I'm good till February. Any further items for the Board? 10. ADJOURNMENT (11:02 a.m.) Mr. Robinson: Is there a motion to adjourn. Mr. Heintz: So moved. Mr. Robinson: Is there a second? Mr. Wiseman: Second. Mr. Robinson: All those in favor say aye. Okay meeting adjourned. 14 Motion and Vote: Mr. Heintz moved to adjourn. Mr. Wiseman seconded the motion. All members voted aye. Respectfully submitted: ,Nt P Maria Pagala, Secretary 15