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HomeMy WebLinkAboutPetition 2021-01 - Informal Advisory Opinion (06-09-21)BEFORE THE BOARD OF ETHICS COUNTY OF HAWAI`I In the Matter of the Petition by I PETITION NO. 202 1 -01 Cory Harden, and Tim Richards, Petitioner, I INFORMAL ADVISORY OPINION Respondent. Initial Review: April 12, 2021 INFORMAL ADVISORY OPINION By Petition filed on January 24, 2021 with the Hawaii County Board of Ethics (hereinafter referred to as "Board"), Cory Harden (hereinafter referred to as "Petitioner") requested an opinion from the Board as to whether Council Member Tim Richards (hereinafter referred to as "Respondent") violated the fair treatment section of the Code of Ethics by declining to recuse himself and instead voting to confirm Public Works Director Ikaika Rodenhurst because Respondent was listed as a reference on Mr. Rodenhurst's resume. At its duly noticed meeting of April 12, 2021, the Board initially reviewed and considered the above -captioned Petition pursuant to Rule 4 of the Rules and Practice and Procedure of the Board of Ethics. Petitioner Cory Harden and Respondent Tim Richards were present at the hearing and provided testimony. Petitioner requested an open hearing which was approved by the Board. The Board, having deliberated and considered and giving appropriate weight to the testimony and evidence submitted by the Petitioner, and having considered the arguments presented, hereby renders the following Findings of Fact, Conclusions of Law, and Order. FINDINGS OF FACT To the extent that any of these Findings of Fact are Conclusions of Law, they are to be so construed. 2. On January 24, 2021, Petitioner filed this petition requesting an opinion from the Hawai'i County Board of Ethics as to whether Respondent violated Hawaii County Code ("HCC") Section 2-83 when he voted to confirm Public Works Director Ikaika Rodenhurst. 3. Petitioner stated the following as a rationale for her petition: "Mr. Richards signed on as reference before participating in the January 5 and January 20 meetings, without knowing if the meetings would bring forth any information indicating the confirmation of Mr. Rodenhurst would be an "unwarranted" advantage, contract, or treatment under Section 2-83. In fact, information did come forth indicating confirmation was "unwarranted". 4. Petitioner is a resident of the County of Hawai'i. 5. Respondent is a duly elected Hawaii County Council Member for District 9. 6. On December 8, 2020, Mayor Roth submitted a letter to the Hawaii County Council (hereinafter referred to as the "Council") requesting confirmation of his appointment for Public Works Director, Steven I. Rodenhurst also known as Ikaika Rodenhurst (hereinafter referred to as "Director Rodenhurst"). 7. Director Rodenhurst listed Respondent as a reference on his resume for Public Works Director. 8. Respondent was listed on Director Rodenhurst's resume as "Herbert M "Tim" Richards, DVM-Hawaii County Council, District 9 Council Member". 9. On January 20, 2021, the Council voted to confirm Director Rodenhurst's appointment as the Director of the Department of Public Works with a five to four vote. 10. Respondent was one of five Council Members who voted in favor of confirming Director Rodenhurst. 2 11. Hawai'i County Code Section 2-83(b), Fair Treatment, states, in the relevant part: "(b) 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, treatment, for oneself or others" 12. At the April 12, 2021 hearing, Board Member Self asked Respondent, "if your name had not been listed as a reference, would your vote have been the same?" Respondent answered, "yes." 13. Pursuant to the Hawaii County Charter, the Council had the authority to confirm Director Rodenhurst's appointment as Director of the Department of Public Works. 14. Based on the evidence presented, the Board finds that Respondent did not violate Hawai'i County Code Section 2-83 by voting to confirm Director Rodenhurst because Respondent was one of five Council Members that acted within their authority to confirm Director Rodenhurst for the position of Director of the Department of Public Works. 15. Board Member Amy Self moved that the Board deny the Petition. Board Member Nakanishi seconded the motion. Board Chair David Wiseman and Board members Amy Self, and Denise Nakanishi, voted in favor of the motion. Vice Chair Heitz opposed the motion. The motion passed 3-1. CONCLUSION OF LAW Based upon the evidence presented and the Board's review of the Hawai'i County Charter, the Hawai'i County Code, and the Board's Rules of Practice and Procedure, the Board finds and concludes that Respondent did not violate Hawaii County Code Section 2-83 by voting to confirm Director Rodenhurst because he was acting within his authority as a member of Council. Thus, Director Rodenhurst's confirmation was not unwarranted. ORDER Pursuant to Board Rule 4.9, this Informal Advisory Opinion shall be filed with the Board and a copy shall sent to the Petitioner and the Respondent. Dated: Hilo, Hawaii, June , 2021. BOARD OF ETHICS, COU WAI`I By L40xx� L DAVID WISEMAN Chair APPROVED AS TO FORM AND LEGALITY: De y orpo 'on Counsel BEFORE THE BOARD OF ETHICS COUNTY OF HAWAI' I RE: PETITION NO. 2021-01 INFORMAL ADVISORY OPINION Dissenting Opinion by Member Heintz, L. The County Council established a Code of Ethics and a Board of Ethics to interpret and implement that code. The purpose of this institution is to promote the highest standard of ethical conduct in the officer and employees of the County, so that the public may have trust and confidence in the integrity of government, see attached article 14.1 a and b, Cory Harden's petition 2021-01 clearly articulates the problem before us. Does a Council or board member or employee violate the Code of Ethics Section 2-83 (Fair Treatment) when they act as Council member Richards did by both serving as a reference for and subsequently voting for candidate Rodenhurst. The members of the County Council urged Mr. Richards to recuse himself, petitioner Harden and numerous citizens testified that by voting, Mr. Richards was not acting impartially but rather that by both serving as a reference and voting, it is reasonable to conclude that he demonstrated prejudgment biased an order invited a concern of a tainted vote. By denying the Harden petition, the Board of Ethics does not promote `The highest standards of Ethical Conduct'. It is being exhibited by County government. I therefore dissenLfrom the majority opinion of the board Lawrence Heintz Member, Vice Chair Board of Ethics