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HomeMy WebLinkAbout12-06-21 DRAFT Reg Session MinutesHAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Monday, December 6, 2021 10:01 a.m. to 11:31 p.m. Hawai‘i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai‘i 96720 Members and Staff Present: David Wiseman, Chair Larry Heintz, Vice Chair Denise Nakanishi, Member Cody Frenz, Deputy Corporation Counsel Liza Osorio, Secretary 1. CALL TO ORDER (10:01 a.m.) Mr. Wiseman called the meeting to order at 10:01 a.m. Due to technical issues, the beginning of the meeting was not recorded. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:05 a.m.) 3. APPROVAL OF THE REGULAR SESSION MINUTES OF OCTOBER 13, 2021 (10:56 a.m.) Motion and Vote: Mr. Heintz moved to approve the minutes, subject to corrections. Ms. Self second the motion. All members voted aye. (10:07 a.m.) 4. NEW BUSINESS (10:07 a.m.) a. Selection of the Board of Ethics Chair and Vice Chair beginning 2022. Motion and Vote: Mr. Wiseman moved to nominate Mr. Heintz a Chair. Ms. Self seconded the motion. All members voted aye. (10:09 a.m.) Motion and Vote: Mr. Heintz moved to nominate Ms. Self. As Vice-Chair. Mr. Wiseman second the motion. All members voted aye. (10:12 a.m.) . 5. UNFINISHED BUSINESS (10:12 a.m.) a. Petition No. 2021-13: Continued review of Petition requesting an Informal Advisory Opinion from the Chair of the Merit Appeals Board seeking guidance on potential conflicts with the Acting Director of Human Resources. Due to technical issues, the beginning of petitioner’s testimony was not recorded. Ms. Cabanas: …from the office and several occasions he managed the recruitment and examination division in my absence. We only know each other in a work environment. Close to the end of my career, both Waylen and I discovered we share a common ancestor and are blood related. We did not know that previously. Upon further questioning and research with my mom, I’ve concluded that he and I are third cousins once removed. The common ancestor is great-great grandfather who is the dad of my paternal grandmother, my great-grandfather. During the last year of my work with human resources, Waylen left County employment to relocate and work for the city of San Francisco. He returned to the County of Hawai‘i after Director William Brilhante, Jr. Hired him as the next recruitment and examination manager in January 2019. Our paths have since met up as he is now the Acting Director of Human Resources and I am the Chair of the Merit Appeals board. The sequence of events leading up this are the following: Director Brilhante had appointed Waylen as the Deputy Director toward the end of 2020. I was nominated by Mayor Mitch Roth to the Merit Appeals Board for one year, replacing Mr. William Chillingworth. Confirmed by the County Council in February 2021 and later was elected as Chair. My current term ends December 31, 2021. I was recently nominated again to the Merit Appeals Board by Mayor Roth so serve a new five year term starting January 1, 2022. Director Brilhante unexpectedly retired, close of business on June 30, 2021. As provided in HR Sections 76-76 in the absence of the Director. The Deputy Director, who was Waylen, became the Acting Director of Human Resources on July 1, 2021. Being cautious I recused myself from the upcoming recruitment that the Merit Boards will conduct to fill the permanent Director Human Resources position. I have also recused myself from a recent appeal that filed against the Acting Director of Human Resources. Recusing myself to avoid potential conflicts is not new to me because was our protocol when I managed the recruitment and examination division. I believe that I can be fair and objective in hearing any future appeal filed against the Acting Director of Human Resources. If your decision is that I would not be in conflict in hearing any future appeal against the acting director of Human Resources, I would like to un-recuse myself from the Director of Human Resources recruitment and seek your determination on this as well. I have the knowledge and the experience with the process having helped previous Merit Appeals boards with the recruitment and interview and selection process when I was employed as the recruitment and examination manager. In closing I want to assure all of you that my commitment is to the County of Hawai‘i, the Merit Appeals Board and the Merit System. Thank you for hearing my testimony. I’ll be happy to answer any questions that you may have. Ms. Frenz: One moment chair…we can’t hear you. Mr. Wiseman: Do any members have any questions? Ms. Self: I have a question. This is Amy. Mr. Wiseman: Yes go ahead. Ms. Self: The Merit Appeals Board, don’t they have a rule that, or don’t they speak to something where you have to state any conflicts you may have and then they vote to see whether or not they want, or they have to vote to see if they want to recuse you? Ms. Cabanas: There is a rule about disqualifying if there is an immediate family member filing an appeal against the acting director and so that was the reason that I disqualified myself, or recused myself, from the recent appeal filed against the Acting Director. But as far as recusing myself from the upcoming Director of Human Resources recruitment, that was my decision to be safe and to be out of an abundance of caution to recuse myself until I receive an opinion from the Board of Ethics. The reason I did that was I do not want any cloud over the Merit Appeals Board and so if you feel it’s a conflict I will continue to recuse myself from that Director recruitment that’s gonna be advertised soon. I have no involvement with the recruitment up to this point. I feel bad, I have agonized over it. I’ve had some sleepless nights over it as to what I should do because I felt there was a double edged sword there for me. I’m like, you know, not helping my board members when I know the process, I’ve helped previous boards with interviews, the questions, the recruitment. But, out of an abundance of caution I kinda like had to sacrifice myself really for the Board so there’s no cloud over the Board unless you tell me it’s not a conflict then I will un-recuse myself. Ms. Self: What I’m getting at, this seems to be the same situation as you’d have with any board or commission and the County Council, and that is that if the Board is okay with you going forward, cause they’re gonna be there for each and every situation. It seems to me that they would be the ones to decide whether or not it’s a situation you need to recuse yourself. Ms. Cabanas: Well they actually I believe they want me to be involved in the recruitment process because I have the knowledge and the experience and I can be fair and objective. It’s no different for me handling another recruitment. I managed all of those Director of HR recruitments for the Department of Human Resources. I did all the high level cabinet type, manager for water supply, police chief, fire chief, I did it all and I secured the system to no one would see who the applicants were. I have done it all. But like I said, I’ll wait for the Board the Ethics opinion on this because I didn’t want a cloud over the Merit Appeals Board. Mr. Heintz: Mr. Chairman, I have question. Mr. Wiseman: Can I address…Mr. Heintz, excuse me. I’m having a hard time hearing. I’m on my iPad, it could be my iPad or perhaps the volume could be turned up a little on your end…Alright go ahead proceed Mr. Heintz. Mr. Heintz: Okay I simply have a question. It seems to me if you simply disclose to the Merit Appeal Boards whenever anything comes up...your relationship, that would solve this problem wouldn’t it? And then they could decide whether or not you need to recuse. So by disclosing, you are moving everything into the open and your colleagues can determine whether or not this is a problem. Am I right about that? Ms. Cabanas: Well I was advised to come before the Board of Ethics. Mr. Heintz: Okay. Ms. Self: Who advised you? Mr. Wiseman: I would further that statement by Member Heintz, a member, making a disclosure on any matter that involves your very distant cousin I mean who can name all their third cousins anyway…you know making that public disclosure with the added statement ‘does anyone have a problem with that?’ and if there is then that problem becomes an issue worked out one way or the other and that usually would cover any conflict problem in my opinion. Thank you. Any further questions? Ms. Cabanas: I needed to answer your question, Ms. Self. You asked me who advised me? It was the office of the Corporation Counsel. That’s why I’m here, because again, it’s their professional, legal expertise to me as the chair of the Merit Appeals Board. I’m being honest, integrity has been and always will be my moral compass. Let me assure all of you. I would never, ever do anything to hurt the County of Hawai‘i Ms. Self: And I know that cause I worked with you for years but here’s my thing, I think that what we’re saying is that this really isn’t a decision for our board to make because it’s actually up to the Board of Merit…Merit Appeals Board to, you know anytime you have something you need to disclose, the important thing is to just disclose anything you think could be a conflict and then as a board, they can vote to see whether they think you should recuse yourself. And I think that would take care of that. I don’t think you need an opinion from us. Mr. Heintz: Mr. Chairman, I’d like to make a motion. Mr. Wiseman: Yes. Yes Mr. Heintz. Mr. Heintz: Okay. The motion I wanna make is Petitioner Cabanas is not in violation of Section 2-83, Section 2-84 and Section 2.91.2 in the event the matters come before the Merit Appeals Board regarding the actions taken by the Acting Director of Human Resources, the third cousin, provided that she disclose her relationship to the Merit Appeals board. Mr. Wiseman: Thank you. Do I hear a second to that motion? Ms. Self: Second. Mr. Wiseman: Motion been made and seconded. Any discussion?...Okay all in favor say Aye…All opposed? Alright, the motion carried. Motion will be that the Petitioner is not in violation of any of the code sections mentioned and that, if there’s any matter that comes of it, well the secretary can restate the motion more specifically for the record. The motion has passed. And if necessary the secretary can read the motion back. Okay thank you. Motion and Vote: Mr. Heintz moved that Ms. Cabanas is not in violation of Sections 2-83, 2-84 and 2.91.2, provided that she disclose her relationship to the Merit Appeals Board.. Ms. Self seconded the motion. All members voted aye. (10:26 a.m.) Ms. Cabanas: Okay Chair, I just wanna be clear so I can hear any future appeals against the acting director, the Board knows of our blood relationship but I will disclose it as future appeals arise and it’s okay with the Board, I can un-recuse myself from the upcoming recruitment for the Director of Human Resources. Ms. Self: If the Merit Appeals says you can do that. It’s their decision as to whether you need to recuse yourself or not. Ms. Cabanas: Yeah it is my decision, it always has been and they would welcome me coming back into the process. Ms. Self: Right. Ms. Cabanas: They would. Okay very good. Ms. Frenz: I would also recommend that you confer with Counsel for MAB because typically once a recusal or disqualification has occurred you cannot un-ring that bell. So you can confer with your counsel as to that issue. Ms. Cabanas: I will do that. Thank you very much. Thank you Chair and members of the Ethics board. Thank you very much. Mr. Wiseman: Okay, thank you. Ms. Frenz: Thank you Ms. Cabanas. b. Petition 2021-14: Continued review of Petition requesting an Informal Advisory Opinion alleging that the Director of Parks and Recreation is derelict in his duties, failing to provide leadership with integrity and obstructing justice. (10:27 a.m.) Mr. Wiseman: I’m aware that the Director has submitted as required numerous documents which we all have. Mr. Messina, is that right? Ms. Frenz: Chair, we have Director Messina here, we also have the petitioner at our current desk as petitioner, if you wanna address…do you wanna state your name for record sir? Mr. Olivar: Good morning, my name is Karsten Olivar. Ms. Frenz: Thank you sir. We have our petitioner at the desk, Chair. Mr. Wiseman: Yes, you have three minutes to make a statement. Mr. Olivar: I’d like to keep it short, I submitted 18 exhibits, all my emails that I tried to send to the leadership and Mr. Messina regarding the unfair hiring that I received and I think you can see from the exhibits that I didn’t get any answers for several months. And it was not until May 30th that I finally sent a sarcastic email which Mr. Messina brought up at the last meeting about the statue and I was just to get a reaction because he was not complying with any of my concerns. And that’s all I have to see. And then I brought up some exhibits as far as the hiring concerned as far as the pool has always notice of shortages lately and it’s kinda hard to believe because I was never called in for an interview by the department as far as the lifeguard position so it’s all kind of odd. How can you have shortages if there’s somebody waiting in line to be employed? So that’s really all there is to it. Mr. Heintz: Mr. Chairman may I ask a question. Mr. Wiseman: Yes Mr. Heintz, go ahead, please can everyone speak louder I’m… Mr. Heintz: Okay can you hear me Mr. Chairman? Mr. Wiseman: Yes I can hear you good now. Mr. Heintz: Okay, I just wanna see if we can clarify couple of issues… Mr. Olivar: Oh sure, absolutely. Mr. Heintz: It seems to me there are two different things going on here. One is a complaint against Mr. Messina with regard to looking in, failure to look into the fact that you were not hired… Mr. Olivar: Yes, and after the retaliation at the pool, (?) August 4th event when I was escorted from the premises… Mr. Heintz: Right, I see those as two different things. One is a question about hiring, unfairness, unfair treatment and the failure to hire you, and the other is the treatment that you received, to you appeared to be unfair that you were barred from using that same pool.. Mr. Olivar: I think it melted into each other it was like a retaliation and one led to the other it’s sort of connected… Mr. Heintz: Okay now, although it’s not clear exactly and I can ask Mr. Messina later, when he took this, his position I think he hasn’t been in that position when…I don’t think he was involved in the hiring process. Mr. Olivar: Well I wrote a letter to the Mayor, email to the Mayor on December of 2020 and I was promised that Mr. Messina would get to me and investigate into the matter and I never heard back from him. So I had to keep asking back for… Mr. Heintz: Well you did hear back from him on February 1st or January 31st.. Mr. Olivar: Well he sort of brushed it off and he wished me good luck with my future job searches and I told him to look a little deeper given the audit that was done by… Mr. Heintz: Okay.. Ms. Frenz: Hold on. Excuse me, sorry I need to interrupt. We are recording everyone, so just a reminder we’re recording and at a later time our secretary will need to type of the minutes about what happened so Mr. Olivar, I know, you will have time, you don’t have three minutes, you have as much time as you need, so please let each board member finish their statement and we’ll do the same with you but we need to make sure we have a clean record okay sir? Mr. Olivar: Okay. Ms. Frenz: Thank you very much, go ahead. Mr. Heintz: I guess where I’m going is your complaint or petition about the hiring process, Mr. Messina wasn’t involved in the hiring process, is that right? Instead, the person who either hired you or failed or refused to hire you was either Mr. Mason Souza or Mr. Victor McDaniel. Do you know who made that decision? Mr. Olivar: No, I don’t.. Mr. Heintz: ..Or who hires in that case? Then I’ll ask that question of Mr. Messina when he comes forward. But it seems to me that your complaint should be directed against the person who chose other candidates rather than you. The 2nd point is, with regard to whether you were treated fairly when you were served the trespass order or barred from that particular pool and that I take it then would be directed to Mr. Messina cause that was under his direction, so I just wanted to separate those 2 issues. Mr. Olivar: Okay. Mr. Heintz: Okay, thank you. Mr. Wiseman: Alright. Any other members have any questions? Mr. Karsten I have a concern…As a swimmer of the public pool for three or four years until I built my own…I’ve never been aware of any misconduct at any pools. And the allegations against you of harassing the pool guard and interfering with a kid training with his father, those are very serious to me. Are you denying that happened or? Mr. Olivar: I didn’t harass anybody and I followed all the COVID protocols, there was a note on the trespass notice and it says I was not following COVID1-19… Mr. Wiseman: Just a moment, I’m not talking about COVID. I’m talking about your conduct in the pool. Mr. Olivar: Oh yeah I just entered the pool and I go swim for 45 minutes. I did not interfere with anybody, fire personnel… Ms. Frenz: Hang on, I need to interrupt again, sorry Mr. Olivar, I know it’s tricky because the screen is there but if you talk into the mic we don’t be able to hear it later, I’m sorry for the interruption sir. Go ahead. Mr. Olivar: Yeah so I was not interfering with any fire personnel. They were actually assigned lanes in the shallow end and I was swimming in the deep end and that’s probably a separation of at least 50-60 yards from me to the other people so there was no interference. That was all fabricated. Mr. Wiseman: Uh-huh… Mr. Olivar: And I think there’s a lot of people in the shallow end, the deep end, and no swimming next to me that I was not interacting with the firemen. Mr. Wiseman: But it seems like there was a campaign or crusade by you carried on with these emails, with the characters, the pool attendance, etcetera and some antagonizing language in there, what about that? Mr. Olivar: What was the antagonizing language? I didn’t use any antagonizing language…Please point out specifically which one you mean? Mr. Wiseman: No I’m not prepared to do that now. Mr. Olivar: Well then I don’t know… Mr. Wiseman: Let me switch over to your employment application there…do you feel you have an absolute right to be hired when you apply for a job? Mr. Olivar: No, I don’t. Absolutely not. But I paid my $75 certification fee to the County and I put in my application and I actually made sure I told them that I was still needing to get into the water for the water certification and I don’t feel entitled to anything except for fair consideration. Especially when there are two applicants related to district supervisors do get the jobs. Mr. Wiseman: Thank you, that’s all I have. Any other members have any questions? Mr. Heintz: Just one further question, have you seen Mr. Messina’s response to your complaint or petition? Mr. Olivar: No, I have not. Mr. Heintz: So you have not? Mr. Olivar: No. Mr. Heintz; In his response, I just want to refer to the 2nd page of his response. The 2nd paragraph, says on July 30th, 2021 I became aware of a complaint form that was generated by KACA, the patron, see Exhibit 12, and he has the complaint, which also includes the accompanying email from our recreation director for Kona, the complaint, and this is the part I want to call attention to, the complaint mirrored the information from KACA staff have been reporting almost for a year so there have been a number of complaints for a year according to Mr. Messina. So that’s what you’re referring to as being fabricated? Mr. Olivar: I would think so because I go to the pool, I swim, I didn’t interact with anybody, I didn’t splash anybody or any of those type of things that were fabricated and they actually signed me in every time, took my temperature. So if I was just a great nuisance for year, I should’ve been barred right away right? Mr. Heintz: Okay well I have a question for Mr. Messina when he comes. Mr. Wiseman: Alright thank you. Any further questions from the members? Ms. Self: Yes I have a question. So, you’re only barred from one pool right? You can still swim at… Mr. Olivar: Konawaena? Yes. Ms. Self: Right so. Do you have a problem there? Mr. Olivar: I don’t have a problem at all, it’s just the driving, gas is over $4 now. It’s time consuming, every time I drive up there I have to pass the hospital and it’s where my father passed away. Then I have to pull over for ambulances several times you know there’s a lot of back and forth traffic. It’s just time consuming. Ms. Self: Okay, thank you. Mr. Wiseman: Any further questions? Alright there being none thank you Mr. Karsten. We’ll hear from Mr. Messina, would like to make any statements. Mr. Messina: Good morning Chair and members, Maurice Messina, Director of Parks and Recreation. Mr. Wiseman: Good morning sir. Mr. Messina: So I believe there was a few questions for me? Mr. Heintz: Do you want to make a statement first or…? Mr. Messina: No sir, just like I stated in my response this was a decision that I don’t take lightly, we do have a little under 300 facilities island wide. I work with police officers almost on a daily basis for people who are either breaking County rules in our parks or making an unsafe environment for recreation folks. This is the only time that I’ve been director that I have trespassed anybody from a pool and I think the only thing that I could be probably questioned on is why it took me so long to do this. But I believe that during the time of COVID our recreational opportunities for our public were very very limited, so I just tried to keep working and tried to keep working, have him separated but once I received that public complaint and found out that he was not only harassing this man but also his son, I could no longer just sit back and I figured that this was enough already. Mr. Wiseman: Okay, thank you, any questions from the members. Mr. Heintz: Yes, David, or Mr. Chairman yes I have a few more questions. And this one complaint regarding the man and his son, your statement indicates that that complaint was representative of previous complaints going on for a year or so? Mr. Messina: By my staff. Mr. Heintz: By your staff, so the staff had difficulty? Mr. Messina: Yes they said the petitioner has, you know, been splashing them and you know, failure to comply with COVID rules and from their words, being a general nuisance at the pool. And I believe all of that was stemming from him not being, not “not being hired”, but not being selected for an interview I believe is the case. Mr. Heintz: If I may, turn to the other issue, that whole business about not being hired and that you were asked to look into that. Your response was that you found no irregularities in your February 1st email, you found no irregularities, did you look at an audit report, the one that Mr. Olivar refers to? Mr. Messina: I believe that the audit report he’s talking about was the County wide audit report about hiring practices at one time… Mr. Heintz: Right…(inaudible) Mr. Messina: Yes sir. Mr. Heintz: Did you look at that report? Mr. Messina: Yes sir. Mr. Heintz: And you found no irregularities in the sense that the other candidates for the position? He talks about a delay so that, and he also refers to what appears to be irregularities I believe Mr. Victor McDaniel has several relatives who have been hired, he alleges, is that…did you notice that. Mr. Messina: I’m not completely aware about that. I wasn’t prepared to speak about that part today. But my understanding is, again this was before my time, was that there’s pre-requisites and certain certifications and paper work that must be turned in prior to you even being put on the list by HR. And my understanding is that he didn’t meet those minimum requirements. So he wasn’t considered a candidate for the position. We had two open positions at that pool at the time, both people who came into interview for the positions passed all their swim tests and everything else and both of those people were hired to fill those two positions. We only had two candidates given to us from HR. Mr. Heintz: And that hiring was done by whom? Mr. Messina: It would’ve been… Mr. Heintz: Committee or… Mr. Messina: Yes sir. Mr. Heintz: Committee makes a recommendation and… Mr. Messina: And then it comes up to the director. It’s usually a minimum of three people… Mr. Heintz: And the Director is? Mr. Messina: At the time was Director Roxy Waltjen. Mr. Heintz: Okay so it was not Mr. Victor McDaniel? Mr. Messina: I don’t know who was on the interview panel. Mr. Heintz: Okay. Thank you. Mr. Wiseman: Any further questions from the members? Okay there being none, thank you Mr. Messina. Mr. Messina: Yes sir, thank you. Mr. Wiseman: Do you I hear any motion with respect to this petition? I would make a motion that the…this is a request for an informal advisory opinion and I’d make a motion that based on the submissions which are quite substantial, by Director of Parks and Recreation, that the finding be that he is not in violation of any code sections of the ethics code and he is not derelict in his duties, nor did he fail to provide leadership with integrity or obstruct justice. Any second to that motion? Ms. Self: I second. Mr. Wiseman: Motion’s be made and seconded, I’ll open it for discussion. Any discussion? There being none, all in favor say Aye. All opposed say Nay? The motion is carried. Counsel will draft an informal advisory opinion in consistent with the motion made. Counsel do we need to restate the motion? Ms. Frenz: No Chair, thank you. Mr. Wiseman: Alright, thank you. Motion and Vote: Mr. Wiseman moved that the finding be that Mr. Messina is not in violation of any code sections of the ethics code, not derelict in his duties, nor did he fail to provide leadership with integrity or obstruct justice Ms. Self seconded the motion. All members voted aye. (10:46 a.m.) c. Petition 2021-15: Review draft informal advisory opinion of a petition alleging that the Chair and Vice-Chair of the Leeward Planning Commission violated Hawai‘i County Charger 6-7-5, quorum requirements, and Ethics Code 2.81, 2.82, 2.83(a)(3) and 2.86(b). (10:47 a.m.) Mr. Wiseman: The next item (c), we have to amend the agenda. This is petition 2021-15. It’s a Review draft informal advisory opinion of a petition alleging that the Chair and Vice-Chair of the Leeward Planning Commission violated Hawai‘i County Charger 6-7-5, quorum requirements, and Ethics Code 2.81, 2.82, 2.83(a)(3) and 2.86(b). Counsel I’ll defer to you the reason we have to continue this. Ms. Frenz: Yes chair, that’s because at our last hearing in November, the motion and decision was to dismiss the petition not draft an informal advisory opinion so we have, an order dismissing petition prepared, so we need to re-agendize it, indicating its review of a order dismissing petition as opposed to an informal advisory opinion. Mr. Wiseman: Very well, and that’s to be consistent with in, with the Sunshine Law so the public will have notice of the correct plan of action. Is that right? Ms. Frenz: That’s correct Chair. Mr. Wiseman: Okay, very well. So moving on we have subsection d. d. Petition 2021-16: Review a draft Informal Advisory Opinion of a petition from a County Program associated with the recovery from the 2018 Kīlauea eruption, requesting Informal Advisory Opinion that the policies and procedures adopted by the Program are sufficient to satisfy the Hawai‘i County Code of Ethics as applied to County employees applying to the Program or that an opinion from the Board is not required pursuant to Hawai‘i County Code Section 2-83(c). (10:48 a.m.) Mr. Wiseman: Do the members have any comments or discussion on the draft decision? Ms. Self: I submitted some corrections. Mr. Wiseman: Okay Ms. Self, I’m aware of that. Alright so subject to the corrections, are we all in favor of…do I hear a motion adopting this draft opinion, subject to the corrections? Mr. Heintz: Mr. Chairman I just have a comment, I’m in favor of these and I will vote for them as they are drafted but I just wanna note that the Counsel who drafts these is in an odd position. I think there’s a general understanding that we ask the Counsel to draft them and put them in a form that is traditional I guess and this case and that may mean at times and in this case it does, that what is actually in the petition is not the same as the statement of the motion in the minutes. And however substantively in terms of what is being accomplished I have no difficulty with it. But I just was wondering if when we have these motions, formal motions, and then we draft an opinion, that the opinion must be consistent or the same as I guess the motion. I don’t wanna tie her hands to it has to be exactly the same word for word, but I just want to notice that. Mr. Wiseman: Alright. Does Counsel wish to respond to that statement? Ms. Frenz: Do you have a specific change that you’d like addressed? Mr. Heintz: No, it’s unnecessary, I just would point that if you look in the minutes, the motions that were made are different than the motions as expressed in the petition, is all. But it has, it accomplishes the same thing. Ms. Frenz: Actually just to clarify, are you referring to page 3, section C? Page 1 is a reiteration of the petitions request. Mr. Heintz: Right. Let’s see. The petition, there’s 2 petitions, right? Petition, if we look at petition 2021-16 on page 27. The bottom of the page, that’s the motion. And if you compare that with paragraph 13. Board member Heintz moved that the board find that the program’s policies and procedures listed in Section B of this informal advisory opinion are sufficient to comply with the County Code of Ethics. Ms. Frenz: The only difference as I see it, Member Heintz is the specification that you list is numbered differently in the minutes versus the Order and I think it would be almost, it won’t track if I follow the, if I do sections 3 and 4 of the petition as opposed to the formatting of the order, that’s the difference that I see. In essence the motion is reflected in C-13 with reference to the section that the petition lays out but in reference to the order as opposed to petition as the motion specifies. So if you prefer that it track that way that’s also possible. Mr. Heintz: Well that’s what I said, I think substantively it’s fine, and so I think we just approve these as they are or this is gonna go on for another month or two. So I simply would note there’s a difference and suggest that we move on. Ms. Frenz: The only difference that I see is Sections 3 and 4 as opposed to section B. That can be switched here if everybody wants that. And I can make sure in the future going forward that orders are identical if that’s your preference to the minutes but it can track a little trickier in getting an order to be following the minutes for very reason. But I can defer to whichever the board, way the board prefers. I can make those changes now and they can be implemented with everyone’s approval, following this meeting. Mr. Wiseman: Based on the discussion I would make a motion that we adopt the informal advisory opinion subject to some style changes that have been discussed and the corrections that Commissioner Self has made. Mr. Heintz: I would second that motion. Ms. Frenz: So please tell me exactly how you’d like it to be phrased and I will make those changes so we can all, I wanna make sure we’re all on the same page, now. Or to avoid us having to re-agendize it for next month. Mr. Wiseman: Is this, excuse me but, wouldn’t this be more of a administrative change that can be done outside of the meeting?...I’d like to move on, are we gonna go through style changes on this now? Or we just gonna adopt, pass the motion and let counsel work it out with any member that wants to make some style changes? Ms. Frenz: Well I’d need to in order to protect against sunshine law violations I’d need to know exactly what the Board wants approved. So if we’re going to approve subject to the following specific modifications then we can proceed that way. If it’s gonna be left up to us to do later then we’d need to re-agendize it next month I believe. Mr. Heintz; Mr. Chairman, I suggest that we simply pass your motion and it’s not necessary to make any changes regarding any of the topics that I have brought up today. Simply make the changes that Board member Self has mentioned and, those editorial changes and I think I have made the point that I made in the future we will just be aware that, of this tracking issue I guess. Ms. Self: In other words, you want this order to reiterate what your actual motion says… Mr. Heintz: No these motions, these 2 informal advisory petitions as they are with the corrections you’ve mentioned are all that’s necessary. Nothing else needs to be done. Mr. Wiseman: Yeah as I understand, it’s a state… Mr. Heintz: In the future I think I will coordinate with legal counsel during the drafting, I think that’s the way to go here… Mr. Wiseman: Thank you Mr. Heintz. Alright so we can move on. All in favor of adopting this, again the draft Informal Advisory Opinion in 2021- 16 say Aye. All Opposed? Alright, the Informal Advisory Opinion subject to some corrections that Board member self has made is hereby adopted. Motion and Vote: Mr. Wiseman moved to adopt the informal advisory opinion subject to some style changes that have been discussed and the corrections that Commissioner Self has made. Mr. Heintz seconded the motion. All members voted aye. (10:59 a.m.) e. Petition 2021-17: Review a draft Informal Advisory Opinion of a petition from a County Program associated with the recovery from the 2018 Kīlauea eruption, requesting Informal Advisory Opinion that the policies and procedures adopted by the Program are sufficient to satisfy the Hawai‘i County Code of Ethics as applied to the Planning Director and Program Manager as applicants to the Program or that an opinion from the Board is not required pursuant to Hawai‘i County Code Section 2-83(c). Mr. Wiseman: And we’ll move on to the petition by the same – the same petitioner, this is 2021-17. And we have an informal advisory opinion here also. Pretty much, it follows the same except this is, applies to specific employees of the government. Ms. Self: I made corrections on this one as well. Mr. Wiseman: Very well, those will be noted. Any further discussion on this? There being none, all in favor of…adopting the Informal Advisory Opinion 2021-17 subject to the corrections that Board Member Self has made say Aye. All Opposed? Alright the Informal Advisory Opinion in 2021-17 is hereby adopted subject to corrections that Board member Self has submitted. Ms. Frenz: My apologies Chair, can we clarify, who made the motion for approving subject to Ms. Self’s changes Petition No. 2021-17 Informal Advisory Opinion? Mr. Wiseman: That’s right we didn’t have a motion. Ok let’s go back. I’ll make a Motion retroactively if I can or personally if I can on adopting the Informal Advisory Opinion, in petition 2021-17 with the corrections Board member Self has made. Mr. Heintz: I’ll second the motion. Mr. Wiseman: Motion been made and seconded, all in favor say Aye. Opposed say Nay? Okay the motion is carried. The Informal Advisory Opinion 2021-17 is hereby adopted. Subject to the corrections by Board member Self, Self’s submissions. Motion and Vote: Mr. Wiseman moved to adopt the informal advisory opinion subject to the style changes and corrections by Commissioner Self. Mr. Heintz seconded the motion. All members voted aye. (10:59 a.m.) 6. CONTINUED DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS AND THE HAWAI‘I COUNTY CHARTER AND COUNTY CODE. a. Correspondence dated December 4, 2018, from Ken Goodenow. b. Review proposed amendments by Board member Larry Heintz. c. Request discussion from Corporation Counsel on status of proposed amendments, and suggestions on the next steps regarding said amendments. Mr. Wiseman: As I recall at the last meeting there was so much to try to absorb and address in the huge binder that was given to all members that we sort of deferred, or we requested our Counsel to get the (?) of J. Yoshimoto and prepare, address an issue at a time. Starting with the Code first. Is my recollection on point in that one? Ms. Frenz: Yes Chair. Mr. Heintz; Mr. Chairman, I believe, I’m not positive how this actually ended up. But there were, I mentioned that I thought there were two alternatives that we were considering and one was to divide this up into bits. And if we decided to do that, it’s just a question of someone has to step forward what the bits are that we’re gonna work on, one at a time…and what order. And apparently that didn’t happen, or we haven’t done that. Have we agreed that that’s what we’re gonna do cause I thought we also agreed that we weren’t gonna have a special meeting and just try and plow through this thing because it is very dense and difficult to do it that way. Ms. Self: I have a question. Are you still proposing Charter Amendments? Mr. Heintz: We’re…. Ms. Self: Cause here’s the thing, if you’re gonna propose Charter Amendments and Code amendments, I would say you need to do the Charter Amendments first cause there’s a deadline, well actually the deadline’s already passed, but…that should be first, the code should be second, and the rules should be third because the rules have to implement the code and the charter. You can’t, you’d have to go back and re-do the rules again if those don’t pass or they do pass, you know what I mean. Mr. Heintz: Yes, that’s the same point that I made in the last meeting that there’s this order and as I understand it, there are no Charter amendments before us. There was one at the last election, that passed. That authorized us to have the authority to do fines and that was passed by the electorate. That was a referendum. That passed in the last election, and that’s done with and so now we’re moving our, the County Code and then our Rules and so Amy and I are on exactly the same page here; we should look at our code changes and then see what rule changes need to be made. So like for instance we could simply say that for next meeting, we will agendize these, all the code – well a bunch of the code changes, there may be a lot of them or not, I have a few and Mr. Goodenow I think had a few. And then once those, we figure out where we are on those, then it seems to me that we then, am I correct in those, if we pass a bunch of changes for the code, then they go, that goes to the County Council and we can just wait on changing the rules until the County Council decides what it’s gonna do. Ms. Self: For…this is Amy. So, you’d like for us to start working on Kenny Goodenow’s memo in which he proposed, amendments to section 2-86(b) as in boy, and let’s see…and (c) and then section 2- 87(a)… Mr. Wiseman: Before we go into specifics like that, I’m gonna…in any event, I’ve read through that whole book, prior to the last meeting and I walk away confused because some of the things in there, I’m not sure what is the status. And like Larry said we did get something passed by the electorate in the last election. The Council passed an ordinance allowing us to have, issue fines. And I’m really confused on any amendments that have taken place, if they have or what needs to be done. I know that issue with the Charter Commission came up some time ago and I’m unclear on that as the status. And then as much as I elaborated on the absurdity of having a 6 year statute of limitations in there for filing a petition, it’s still in the final version of Mr. Goodenow’s proposed amendments. So going into specific sections at this time, I’d make a statement on where we stand, just a brief summary of where we stand, code, procedure, charter and the council’s ordinance and how they tie together and where we have to go on these. Ms. Self: Well the 6 years hasn’t changed, he didn’t change that, Kenny didn’t. Mr. Wiseman: I know he didn’t change it, and I’m totally against that. That’s absurd to have someone given 6 years to file a petition against someone. Ms. Frenz: So, let me just interrupt, I apologize everyone because I don’t think it would be appropriate for sunshine purposes to get into specific discussions right now because we just have a general agenda, so maybe a both board member Heintz and Self indicated you know, Ms. Self has gone through kind of the history and I think that the recommendation as I understand it from board member Heintz is that we address proposed changes for the Code next and maybe, so I believe Ms. Self was just going through the memorandum dated April 15, 2019 by Mr. Goodenow with some of the proposed changes maybe we take a portion of those and we can join them with suggestions by Mr. Heintz and figure out how many is appropriate to add to next month’s agenda and see how far we get next month. I think that would be the appropriate avenue, rather than discussing of substance now. Ms. Self: Well there are only four sections that he amended. Kenny in his memo, there’s only four sections that is proposing to amend so I think we could get through 4 sections during the next meeting. Mr. Heintz: I would hope so and then also David you could add the section that has the 6 years on it and then we can discuss and decide if we want to change that. Ms. Self: Well that’s in here. Mr. Heintz: That’s one of the ones? Ms. Self: Yeah that’s the Code, yeah. Mr. Heintz: Okay, so let’s, why don’t we go through, so we will list the sections we are going to deal with on the agenda next time and we will start going through them. And we can list the ones I have as well. And just go through as many as a I can. Ms. Frenz: So if I understand correctly, we need someone, someone will make a motion for example, to agendize at our next month’s meeting the board’s review of possible changes to Hawai‘i County Code Section 2-86, specifically subsection (b)… Ms. Self: Do we need a motion for that? Ms. Frenz: That’s what I’m saying, is this the motion? Ms. Self: I don’t think we need a motion. We’re just saying what we want on the agenda. Ms. Frenz: Well just to agendize these specific items, excuse me sorry, thank you. So we’re gonna add to the agenda section 2-86 for review, specifically (b), or we’ll add the entire section 2-86 to simplify it, 2-87, 2-88 and 2-89.. Ms. Self: No 2-90. Ms. Frenz: Oh, 2-90 excuse me. Board member Heintz did you have any sections that you also wanted to add to the next hearing as well? Mr. Heintz: Okay, they would be Section 14-2, some of these, the changes I have are already listed that I’ve already sent around, and some of it just involves numbering… Ms. Self: That’s the Charter, 14-2. Mr. Heintz: Article 14 of the Code of Ethics. Ms. Self: That’s the Charter. Ms. Nakanishi: I don’t know about David but I can’t hear you guys. Ms. Self: He’s talking about the Charter we’re talking about the Code. Which, she’s asking do you want any other additional code changes or sections of the Code to be on the agenda for next time. Mr. Heintz: Then, so you’re talking about Article 15. Ms. Self: I’m talking about 2-something because in the code it starts with 2, section 2-whatever. Ms. Frenz: The section you’re referring to Board member Heintz is the Code of Ethics in the Charter. Mr. Heintz: 2-84. And that… Ms. Frenz: 2-84 was repealed. There is no 2-84 in the Code anymore… Mr. Wiseman: Okay to move on…we’re gonna place these on the agenda for the next meeting, is that right? Ms. Frenz: So as I understand it maybe we can recap what we’re gonna add to the agenda for our January meeting. A review specifically of Hawai‘i County Code 2-86, 2-87, 2-89, 2-90.. Ms. Self: 2-88 and 2-90. Ms. Frenz: Oh you’re right, thank you sorry about that..2-88 and 2-90 my apologies. And that will be with the proposed amendments that Mr. Goodenow was proposing back in 2019 is that correct? Ms. Self: Yes, yes. Ms. Frenz: We’ll make sure that’s on the agenda for next month. Mr. Wiseman: Okay very well. The next item on the agenda is the executive session. Do I hear a motion to move into executive session?...Well we need to go into executive session for approval of the minutes anyway. So I’ll make a motion we move into executive session, take up a couple of simple matters. Ms. Nakanishi: I second. Mr. Wiseman: Alright, any discussion? There being none all in favor? Okay motion granted, adopted. Mr. Heintz: Motion and Vote: Mr. Wiseman moved go into executive session. Ms. Nakanishi seconded the motion. All members voted aye. (11:24 a.m.) * * * * * * The board entered executive session. (11:24 a.m.) * * * * * * 7. EXECUTIVE SESSION a. Review of the Executive Session minutes of November 10, 2021 b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2- 91.1(d), Hawai’i County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. * * * * * * The board returned from executive session. (11:30 a.m.) * * * * * * Ms. Frenz: Just one thing. Mr. Wiseman: Yes. Ms. Frenz: If everyone could look just briefly, I believe we need to make one correction to the executive session, one update. In addition to the date, if everyone could take a look at the motion and the vote. I believe it should be the motion is to return to regular session, not executive session. So if the board is okay we’ll make that typographical correction as well? Mr. Wiseman: Yes, so the motion will be corrected to reflect that we’re returning to regular session. Ms. Frenz: Thank you. Go ahead chair, thank you. Mr. Wiseman: Okay we’re back in regular session. Motion and Vote: Mr. Heintz moved go into adopt the executive session minutes of November 10, 2021. Mr. Wiseman seconded the motion. All members voted aye. (11:30 a.m.) 8. ANNOUNCEMENTS (11:30 a.m.) Mr. Wiseman announced that the next meeting will be held on Wednesday, January 12, 2022, at 10:00 a.m. at the Hawai‘i County Building, Council Chambers, 25 Aupuni Street, Hilo, Hawai‘i 96720. 9. ADJOURNMENT (11:31) Motion and Vote: Mr. Heintz moved to adjourn the meeting. Mr. Wiseman seconded the motion. All members voted aye. (11:31 a.m.) Mr. Wiseman adjourned the meeting at 11:31 a.m. Respectfully submitted: Liza Osorio, Secretary