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HomeMy WebLinkAboutHANDOUT - Sunshine Law Ethics training, J Yoshimoto, 02 25 2022 Overview of the Sunshine Law and the Hawai’i County Code of Ethics J Yoshimoto, Esq. Assistant Corporation Counsel Office of the Corporation Counsel County of Hawai’i February 25, 2022 The Sunshine Law Hawai’i’s open meetings law, Part I of Chapter 92, Hawai’i Revised Statutes Purpose is to protect the public’s right to know. Open governmental process to public scrutiny and public participation 2## Sunshine Law Requires: No discussing board business outside of a meeting (with a few exceptions). Every meeting must be open to the public unless executive session is allowed. Boards must provide notice, accept testimony and keep minutes. Cannot consider matters not included on agenda. 3## “Board Business” Matters over which the board has supervision, control, jurisdiction or advisory power that are before the board or reasonably anticipated to come before the board in the foreseeable future. On current or future agenda. 4## Discussions with non-board members The Sunshine Law does not apply to non-board members, so a board member may discuss board business with a non-board member outside of a meeting. BUT – be careful of discussions in the presence of other board members No discussion with non-board members regarding matters discussed in closed executive session 5## Permitted Interactions of Members HRS 92-2.5 (a) Two or more members but less than a quorum may discuss between themselves matters relating to official board business to enable them to perform their duties faithfully, as long as no commitment to vote is made or sought and the two members do not constitute a quorum of their board. 6## Permitted Interaction Groups, HRS 92-2.5 (b) Two or more members of a board, but less than a quorum, may be assigned to: 1. Investigate a matter relating to the official business of their board; provided that: A. The scope of the investigation and the scope of each member’s authority are defined at a meeting of the board; 7## HRS 92-2.5 (b) B. All resulting findings and recommendations are presented to the board at a meeting of the board; and C. Deliberation and decisionmaking on the matter investigated, if any, occurs only at a duly noticed meeting of the board held subsequent to the meeting at which the findings and recommendations of the investigation were presented to the board;… 8## Executive Meetings Closed to public Motion shall state reason for closed meeting Requires 2/3 vote of board members present 9## Executive Meeting Purposes Personnel decisions Consult with board’s attorney Investigate criminal misconduct Matters confidential by law or court order HRS § 92-5 10## Remote meeting options effective January 1, 2022 Boards and commissions will have the option to hold remote meetings by interactive conference technology (Zoom, WebEx, Microsoft teams, etc). Must provide at least one location open to the public and that location must have an audiovisual connection 11## Remote meeting requirements A quorum of board members are required to be visible and audible throughout the meeting. Other participants are not require to be visible. Board members participating remotely from a nonpublic location shall state who, if anyone, is present with them at that location. 12## Remote meeting requirements At the start of the meeting, the Chair is required to announce the names of participating board members. All votes shall be conducted by roll call unless unanimous. 13## Remote meeting requirements When practicable, boards must record meetings and make the recording electronically available to the public as soon as practicable after the meeting and until a time as the minutes are posted. 14## What happens if the meeting connection is lost? Meeting shall be automatically recessed for up to 30 minutes. If connection is not restored within 30 minutes the board must postpone/continue the meeting to another date and time or terminate the meeting. Note: Meeting notice should include how the public can access the meeting after an interruption to communication and/or when the meeting will be continued to, date and time, if interruption lasts more than 30 minutes. If no notice, the meeting must be terminated. 15## What happens when the connection is restored? The meeting can reconvene if: Audiovisual communication is restored; or Audio-only communication is established after an unsuccessful attempt to restore audiovisual communication. 16## No Video After Attempt to Restore If only an audio connection is available after audiovisual connection has been lost, all board members must state their names before speaking. Any visual aids available to the board shall be made available to all meeting participants within 15 minutes of losing visual connection. If visual aids cannot be provided to all participants, then that agenda item shall not be acted upon. 17## Testimony All interested persons may submit written and/or oral testimony on any agenda item. A board may adopt a rule setting a reasonable time limit for testimony. 18## Meeting Agenda Must list all items that the board intends to consider Must be sufficiently detailed so as to provide the public with adequate notice of the matters to be considered 19## Amending the Agenda Only with 2/3 vote of all members Cannot add item if: of reasonably major importance, and will affect a significant number of people 20## Ethics Training – Guiding Principles Assume people are watching Use the smell test Take the high road 21## “Elected and appointed officers and employees shall demonstrate the highest standard of ethical conduct so that the public may have trust and confidence in the integrity of the government.” - Hawai’i County Charter, Section XIV 22## Hawai’i County Charter, Section 14-2. Standards It shall constitute a conflict of interest for employees or officers of the county to: (a) Solicit or accept gifts, loans, gratuities, favors, promises or services with the understanding that the same may influence the employees or officers in the proper discharge of their official duties. 23## Section 14-2. Standards (b) Use their official position to secure special privileges, consideration, treatment or exemption to themselves or any person beyond that which is available to every other person. (c) Engage in any business, transaction or activity or have a financial interest, direct or indirect, which might reasonably tend to be incompatible with the proper discharge of their official duties or to impair their independence of judgment in the performance of their official duties. 24## Section 14-2. Standards (d) Receive any compensation for their services as an officer or employee of the county from any other source other than the county, except as otherwise provided by this charter or by law. 25## Section 14-2. Standards (e) Appear in behalf of private interests for compensation before any agency of the county other than a court of law, nor represent private interests in any action or proceeding against the interest of the county in any litigation to which the county is a party. An officer serving the county without compensation, however, may appear for compensation in behalf of private interests before county agencies other than the one on which the officer serves and other than those agencies that have the power to review the actions of the agency on which the officer serves, or to act on the same subject matter as the agency on which the officer serves. 26## Section 14-2. Standards (f) Accept a retainer, compensation or election campaign contribution that is contingent upon action by a county agency. 27## Hawai’i County Code of Ethics Article 15, Hawai’i County Code Applies to all County officers and employees All officers and employees are presumed to know the requirements of the ethics code Code is interpreted by the Board of Ethics Citizens and employees may file petitions 28## Fair treatment - § 2-83 (a) Officers and employees of the County, while discharging their duties and dealing with the public, shall adhere to the following precepts: (1) All public property and equipment are to be treated as a public trust and are not to be used in a proprietary manner or for personal purposes without proper consent. 29## Fair Treatment (2) No person in a supervisory capacity shall engage in personal or business relationships with subordinates, which might intimidate said subordinates in the discharge of their official duties. (3) All persons shall be treated in a courteous, fair, and impartial manner. 30## Fair Treatment (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, or treatment, for oneself or others, including but not limited to the following: (1) Seeking other employment or contract for services for oneself by the use or attempted use of the officer’s or employee’s office or position. 31## Fair Treatment (2) Accepting, receiving, or soliciting compensation or other consideration for the performance of the officer’s or employee’s official duties or responsibilities except as provided by law. (3) Soliciting, selling, or otherwise engaging in a substantial financial transaction with a subordinate or a person or business whom the officer or employee inspects or supervises in the officer’s or employee’s official capacity. 32## Fair Treatment (4) Using County property, facilities, equipment, time, or personnel for private business, campaign purposes, or for any purpose other than for a public purpose. 33## Fair Treatment (c) An officer or employee of the County, or a business in which an officer or employee or the officer or employee’s immediate family has a controlling interest, may contract for goods or services with any County agency provided that: (1) The nature of the relationship between the officer or employee and the County is provided in full disclosure to the agency seeking goods or services as part of the bid for a contract or response to a request for proposals; and 34## Fair Treatment (2) The officer or employee has obtained an opinion from the board that there is no conflict of interest resulting from the officer or employee’s position with the County. A board opinion shall continue to satisfy this requirement until a change occurs in the financial interest or role of the County officer, employee, or the officer or employee’s affected immediate family member, in the business or undertaking with which the contract is concerned. In the event an opinion by the board was not obtained in advance of submitting a bid, the officer or employee shall instead submit a copy of a letter or petition requesting review by the board. “Immediate family” means the employee’s or officer’s spouse, siblings, children, grandchildren, or parents. 35## Conflicts of Interest Hawai’i County Code § 2-84 36## Conflicts of Interest § 2-84(a) No officer or employee shall take any official action directly affecting: (1) A business or other undertaking in which that officer or employee has a substantial financial interest” 37## Conflicts of Interest § 2-84(a) No officer or employee shall take any official action directly affecting: (2) A private undertaking in which the officer or employee is engaged as legal counsel, advisor, consultant, or representative, or other agency capacity” 38## Conflicts of Interest § 2-84(a) No officer or employee shall take any official action directly affecting: (3) A business or undertaking in which the employee knows or has reason to know that a brother, a sister, a parent, an emancipated child, or a household member has a substantial financial interest, provided that the financial interests of these individuals shall not include those of any spouse or child. 39## Hawai`i County Charter, Article XIV Conflicts of Interest The failure to comply with the provisions of sections 14-2 to 14-4, inclusive, shall constitute a cause for suspension, removal from office or employment, or such other penalty as the council may prescribe by ordinance, or other remedy as may be available by law. 40## Gifts § 2-91.4. Gifts. No officer or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence the officer or employee in the performance of the officer’s or employee’s official duties or is intended as a reward for any official action on the officer’s or employee’s part 41## Reporting of gifts Section 2-91.5. Reporting of gifts. (a) Every officer and employee shall file a gifts disclosure statement with the County board of ethics on June 30 of each year if all the following conditions are met: (1) The officer or employee, or spouse or dependent child of an officer or employee, received directly or indirectly from one source any gift or gifts valued singly or in the aggregate in excess of $100, whether the gift is in the form of money, service, goods, or in any other form; (2) The source of the gift or gifts have interests that may be affected by official action or lack of action by the officer or employee; and (3) The gift is not exempted by subsection (d) from reporting requirements under this subsection. 42## Reporting of gifts (d) Excluded from the reporting requirements of this section are the following: (1) Gifts received by will or intestate succession; (2) Gifts received by way of distribution of any inter vivos or testamentary trust established by a spouse or ancestor; (3) Gifts from a spouse, fiancé, fiancée, any relative within four degrees of consanguinity or the spouse, fiancé, or fiancée of such a relative. A gift from any such person is a reportable gift if the person is acting as an agent or intermediary for any person not covered by this paragraph; (4) Political campaign contributions that comply with state law; 43## Reporting of gifts (5) Anything available to or distributed to the public generally without regard to the official status of the recipient; (6) Gifts that, within thirty days after receipt, are returned to the giver or delivered to a public body or to a bona fide educational or charitable organization without the donation being claimed as a charitable contribution for tax purposes; and (7) Exchanges of approximately equal value on holidays, birthday, or special occasions. (e) Failure of an officer or employee to file a gifts disclosure statement as required by this section shall be a violation of this article. 44## Confidentiality Provision Hawai’i County Code § 2-91.6 45## Confidentiality No officer or employee shall disclose information which by law or practice is not available to the public and which the officer or employee acquires in the course of the officer’s or employee’s official duties, or use the information for the officer’s or employee’s personal gain or for the benefit of anyone. Note this provision covers both confidential and privileged information. 46## “Confidential” and “Privileged” Information “Confidential” information is protected as private by law. “Privileged” information is protected as private by the relationship of the attorney and client. 47## “Confidential” and “Privileged” Information Confidential Information Examples of “confidential” information are medical information protected by the medical privacy act, and criminal records protected by federal and state statute. We are required by law to protect this information as private, and cannot “waive” the privacy right. Only the subject of the information, under limited circumstances, may waive this privacy. 48## “Confidential” and “Privileged” Information Privileged information “Privileged” information may not necessarily be “confidential” information, but nonetheless is information intended to remain private. “Privileged” information is usually held private since its disclosure would adversely affect the functions and decision-making processes of the client. 49## “Confidential” and “Privileged” Information Release of confidential or privileged information If “confidential” information is released without proper authority and/or consent, there may be civil and criminal consequences. “Privileged” information may be released by the client, but there may be adverse personal and organizational consequences to the release. 50## Caveat/Disclaimer This written outline is intended to accompany and supplement an oral presentation concerning the listed material. The outline should not be used as the sole basis for any legal conclusion or opinion concerning the subject matter. Please consult the Office of the Corporation Counsel at 961-8251 if you have any legal questions. 51##