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HomeMy WebLinkAbout2004-05-12 Board of Ethics Minutes REG pcHAWAII COUNTY BOARD OF ETHICS MINUTES - REGULAR SESSION May 12, 2004 - 10:00 a.m. County Council Room 25 Aupuni Street, Hilo, Hawaii Present: Leroy Victorine, Chairman Sharon Cislo, Vice Chairman Kerry Inouye Bobby Jean Leithead -Todd, Deputy Corporation Counsel Paulette Cainglit, Secretary Absent: Reeve Williams Joel Gimpel CHAIR: The meeting shall come to order. I have 10:00... the clock on the wall says 10:04. Are there any members of the public? There are no members of the public, so there's no statements from the public. As circulated, we have regular session and executive session minutes. Do I have a motion to accept and file? SC: I make a motion to accept and file minutes April 5, 2004 regular session. KI: I second. CHAIR: It's been moved and seconded, all in favor say aye. SC: Aye. KI: Aye. CHAIR: Aye. It is passed. SC: I also make a motion to accept and file the minutes of the April 5, 2004, Executive Session. KI: I second. CHAIR: It's moved and seconded on the Executive Session minutes. All in favor say aye. SC: Aye. KI: Aye. CHAIR: Aye. It is passed also. Communications. We have communications 2004 -09, letter from Lincoln Ashida. I SC: That's different from the Petition? PC: Yes. That's different from the Petition. BLT: Okay, wait... okay in communications... SC: This communication, is regarding the ADA State Law Compliance for Public & Contested Case Hearings workshop. CHAIR: And do we know when they're going to hold this? BLT: For June 30tH SC: Yes. CHAIR: The ADA Workshop is scheduled for June 30, until 4:30 p.m. at the County Council room here. Any thoughts? My recommendation is that if you want to be informed to attend this or if you plan on attending, let Paulette know by Thursday, June 17tH SC: So, do you need a motion to file this? CHAIR: Yes. SC: Okay, I make a motion to file Communications No. 2004 -09. KI: Second. CHAIR: It's moved and seconded to accept and file Communications 2004- 09, all in favor say aye. SC: Aye. KI: Aye. CHAIR: Chairman votes aye and the motion is passed. New Business. CHAIR: Good morning Mr. Ashida. Mr. Ashida: Good morning chief. CHAIR: Mr. Lincoln Ashida, Corporation Counsel, is present. Mr. Ashida: Good morning. CHAIR: Petition 2004 -01. Mr. Ashida: I don't have anything substantive to add to what I already submitted to the Board. Suffice it to say, when this all came about Pa the cards, they're not soliciting, it's automatically sent in prior. My intuitive knee jerk reaction was, "Hold on, you know, something's not right with that. So when we started, and I looked at it, in light of the County's Ethics Code, I sort of stepped back and PC: Excuse me, but can we stop for just a moment... `cause everybody was helping me with this [mikes]... and we're not connected so... [break for a minute] CHAIR: We're now on record. Mr. Lincoln Ashida, our Corporation Counsel, we'd like for you to start again, sir. Please state your position. Mr. Ashida: When we initially began receiving these gifts, we... my initial knee jerk reaction to it was... you know, was should it be something that we should not retain... we should give back. But when we further examined factually what was happening, when I was looking at our Code of Ethics... you know, then I concluded that I didn't believe that it was a problem... and what it all boiled down to in my mind is... the process or procedures that we have in our office... that... the court reporters' services are selected on a rotating basis. There is no discretion there. It's... its, we've even actually... you know, actually have gotten letters or a letter from a court reporter that complained about the process stating... hey, look, I can offer this to you cheaper, you know, per page, why don't you go with me, exclusively, and not... ice out everybody else. We kicked that around, because we take all inquiries like that seriously. The bottom line, with respect to the procurement of professional services, quality is always something that can be considered. We don't necessarily go with the cheapest guys. If that was the case, if we hired special counsel attorneys, we'd be hiring the cheapest guy on the street. That doesn't make sense. We want quality and think it's good. We get a better product. I think when all of the vendors know that they all have an equal shot, you know, I think the worst thing is, when you see it on the contract when they tell you they're iced in, and then, to me the quality could suffer. So actually we get . But, with respect to this firm, you know, maybe what felt... I felt a little uncomfortable about this in the beginning, because it is a big Honolulu firm, you know, Carnazzo, a big outfit. Maybe the feeling is that they afford to give gifts, but not a small, one person, operation. But then, when I went back and thought about it, and we looked at our policy in terms of our taking it, really doesn't matter... big or small, you're going to get the same about of work. You're not going to get favored in any way. You're not going to be moved to the top of the list or what have you. They're very nominal gifts, but, to me, the individual secretaries, they actually sent these to the secretaries... they're the ones who are setting the depositions and so forth. When I thought about it, even that would have been okay, but, to me, in an abundance of caution, what would be... instead of, you know, having it to go to one place, we thought, we'd just put it in a pool... that I would actually be... I would report it every year on my gift disclosure statement, just so that there's a record of it coming in, and how much. SC.. How many do you receive? Mr. Ashida: So far? You know... Paulette, do you know how many? PC: I'm not sure. Mr. Ashida: Probably, less than a half dozen at this point... or so. SC.. So, maybe thirty... fifty bucks a year, in gift cards? Mr. Ashida: No, it's really more than that. Yearly things, it's gonna be more than that, we have no way of knowing that. They might discontinue it... you know, who knows? Maybe this is a one time promotional. We thought, you know, it's not just government that's getting it. We're just a small part of their customer ...'cause we only have one attorney on Oahu who uses them everyday. They get `em. So it's not like government is getting like a special deal. It's not just a promotion for government. It's for everybody. So that was another big factor. Number one was our process or rotating, number two is that this is not a special deal for government. It's just we're being basically treated as anybody in the private sector, and number three, as a safeguard, I thought I would maintain them, or we could give this and we'd use them for an employee rewards program. Not... to say reward Paulette because Paulette used this firm x- number of times, so now we should give it to her. It would be for a year -end Christmas party or something... give those out as gifts or something. SC.. And who manages that... who's going to... Mr. Ashida: That probably would be me, `cause I would take it away... I'd take it away from the individual secretary. I don't want them getting saddled with any kind of accusations. SC.. So the gift cards would go to you. Mr. Ashida: Right. 4 SC.. You'll keep them, you'll file them on a Gift Disclosure. And then at the end of the year ... you'll hold them over to another year, or are you just going get rid of them by the end of year through giving them to... Mr. Ashida: Probably throughout the year. We do not accumulate throughout the year and we just wanted to let you know actually as soon as we started getting these in, prior to this meeting, I immediately put out a memo to all the staff that they're not to keep them. They are to turn it in to the supervisors and we'll hold them until resolution of this case in an abundance of caution. The other thing is, you know, when I thought about it in a more commonsensical way, it's no different than... you know, I gotta go work. Small reporters would argue that, eh, I can't compete with big guys. But then when the court reporters come to our office for a day of depositions, they bring a box of donuts, pastries or manapua for us. And then thought about it, I go, "How is that different ?" It's really not, you know, so, you know, I admit that when it first happened... it smelled bad too... because, you know the antennas go up... and you say, "eh, this cannot be right." And when you think about, analyze in that way. And again, the fact that we have this rotating set in stone schedule, that at least prior to these gifts ever coming in, I felt, again, just to a lay any concern... anybody in our office has, I mean, it's like, I just want to make sure. That's basically our situation. would be more than happy to answer any questions or concerns. SC.. I'm all clear, I'm just little... I'm just concerned how it's going to be handled. Who's going to collect these. And you said you are going to collect them. Mr. Ashida: Right now... SC.. And disclose them. Mr. Ashida: The clerical supervisor, I assigned her to physically collect them from the girls, SC: Okay. Mr. Ashida: The legal clerks. Then they will be turned over to me. I will report them on my year end gift disclosure statement, June 30th. Just so that there's a record of what's out there and what had come in. And in terms of how they would then be dispersed to the staff... that shall be control... there's a specific employee rewards program that the County already in place that we can utilize that as the template as to how it can be distributed in whether to use them as for example, lucky number prizes at the year end Christmas party. Twice a year, at least once year our office has a site meeting where we do team building exercises, we could give them out there as door prizes, or we could tie them into the employee performance which I'm about to do under State law. That's still a possibility. But, that hasn't been decided yet. Because right now, first things first, which is if this Board tells me I gotta give them back, then we give them back. And again, that's fine. So that's where we're at right now. CHAIR: Okay. KI: I don't have any questions. CHAIR: Okay. Mr. Ashida, I do have some reservations. And quite frankly, your reaction to this to start with, is the same as mine. While it isn't anything huge or overwhelming in the thing of gifts and so forth, it does, to me, there's a little bit of a stigma that goes with it mainly because these gifts, these thank yous are for use of their services. In other words, you don't use their service you don't get it. And while I have complete confidence in your integrity, and that of your staff, I can see someone who doesn't have or is looking for a problem to say, "This is a payoff." Nobody's getting rich off of this obviously, but it is my feeling that it would be better frankly, not to accept gifts. Return it back and be able, if anybody has questions, would be one of the ... agencies... hey, this small. I want it to be pure, both in intent and in operation. I would say that it would be better to decline this... in its' entirety. You're not going to get that much extra in rewards as it were for your staff, if for some reason you folks couldn't handle it internally anyhow. It's just that if somebody comes back, the immediate... the word that they would use is, payoff. And I don' think the County really wants that. Mr. Ashida: You know their main... one thing I didn't add is the principle fact is that the value of... you mention the value, they may be now a hundred dollar, fifty dollar gift certificates for Ward Centre every month, then I'd go, "Well ...... then that fear that the initial reaction is a little more heightened... but, for this amount, basically for five dollars credits at ... where's that...Starbucks, Jamba Juice, that's more close to like the box of manapua or doughnuts. And actually for these prices, it's actually cheaper. You know one box of manapua and doughnuts. Then I thought... say if I did take the hard lines and say, "Okay, let's return it," then we cannot accept boxes of manapua. We cannot accept... then I thought, well then that's sort of not consistent with the aloha spirit, kinda thing. And you know, again... when I was a prosecutor, records of it something together, so the next day, I'd take a box of pastries to records division. Would that be prohibited also... for them from ra accepting it... a small thank you, let's say, thanks for going the extra mile getting me those reports, or something like that. That's where thought, value. `Cause you know I went down there with a hundred gift certificate from Macy's for the girls, then that would like, whoa, no way, nobody should be doing that. So that's why thought this five dollar gift certificates would be okay. It wouldn't... you know my initial, you know, I think we both shared that initial... hey this is a pay off, this is a payoff, because they pay for use, every time you use it you get it, right? It's not just, we going give it to you no matter what out of the goodness of our heart. You use us, we give you. But then I thought, okay... you know, that... I got over that I guess, and then, when... I know why it's because... but this is the issue. I do hear what you're saying, and respect that. CHAIR: I think basically, all I'm saying is the fact, while... you're so... of course with respect, the principle involved... is a little bit different, because, a guy comes with a box of manapua this time, next time he doesn't, that's nobody takes offense at this. On the other hand, this voucher, as I'm reading the program, it follows the use of the report service, so, if you were going to use this particular service and something came up and the thing is cancelled, nothing would come. The principle still seems to be, because you use our service, we are rewarding you. And that's exactly what people will say. And while it's open to the general public, we're not the general public, , 1 think... personal opinion, I think it would not be in the best for government . Must say we did get a letter from Joel Gimpel, whose provisions... determinations is exactly how it's for mine, he feels and he says he... of course he's not here to vote, but, I'll read it: "I've reviewed the subject petition and enclosures and agree with the Corporation Counsel's conclusion that based upon the facts as stated, and given the existence and adherence to the policy of rotating courts, that office's receipt of $5 gift cards does not constitute a violation of the Code of Ethics because the present policy does not allow for any special benefit to be conferred on the donor." That's Joel opinion, and, I just have... it's personal, I just have... this word payoff keeps running in my mind. I don't believe that there would be any offering or attempt on your part or your office's part or any of your staff to take advantage of this, but at the same token, I'm looking at this and the next guy says, "If they're giving a 5 dollars, why don't we give them 10 dollars, and it becomes a competitive thing also. Because obviously, this would become public knowledge. And in your statement you made reference to somebody who offered a lower rate per page, and wanted to complete with... I think your decision to go on a rotating list is a much better one, unless you IVA want to go out on open contract type of deal to let people bid. And that would become rather... Mr. Ashida: Cumbersome. CHAIR: Very cumbersome. So I think your rotation system is as good as you're gonna get. Like I said, at this stage, it's my personal opinion. What does the Board desire? BLT: Mr. Chairman, I did bother to go and check on the gift guidelines for the State Ethics Code as well as City and County and the language of their Ethics Code are practically identical to the County's. The only difference is that the City and County and the State, you're allowed to have gifts up to a value of ... their disclosure is 200 dollars. County is at 100. And I also went and looked whether they had dealt with this, and basically, what they consider gifts of aloha, thank you, thank you gifts as well as promotional gifts that are of relatively small value. And in their case, the cut off from Honolulu, was something that was less than fifty dollars. That they did not think that that was a problem, because they didn't think that you could reasonably incur that with a small item that the purpose of that was to influence somebody in the awarding of a contract. So I just xeroxed that and passed that out because they have had similar petitions. And I guess there's a difference between what you mean... think you might personally do, as opposed to what the law and our Ethics Code requires. And so the question is, whether this is a gift that is given specifically to influence or would influence the official in giving the contract the business. Is this something that was not the practice with the private secretaries. So, in other words, the way that analyzed it is, was the gift giving here the same as they gave to other members of the public. Were they treating this government office different. Were they treating this employee differently. And they looked at the value of it in determining whether you could accept it or not. So I just xeroxed that and brought it to your attention so you could take a look at it and see if it's relevant in the other Ethics Commissions. SC: I think that's why I asked how many jobs you get a year and how much the value is. Maybe if there was a cap on how many you received, that would make it more palatable. Mr. Ashida: I don't think we could control that, it depends on the number of... SC: Times you've used them? Mr. Ashida: Times we used them. SC: `Cause I understand what you're saying, but what's to say that somebody... another company can't come in and say, "Well, they're giving $5 gift certificates, maybe we can give $10 gift certificates. Perhaps, that'll influence the people, even though you say it won't. It won't change the system, it's just a perception. Mr. Ashida: Yeah, I don't know, this is all relatively new. SC: How to control every... where do you put the cap on it. CHAIR: As I read the County Code, I do not see it as a specific violation of the Code of Ethics. I don't see it either as it a conflict of interest, as it's stated. I just... like I said, I guess I have the nervousness, if you will, okay, if you pass on this now, will it open the door for other avenues of keeping them from of County services. But... SC: Perhaps for abuse or something? CHAIR: Yeah. On the other hand, I think our purpose here is to determine whether or not this is a violation of the Code of Ethics. And if you read the Code of Ethics, a very narrow vision, I do not see it being a violation of the Ethics. So, I guess we're at a position now for this Board to determine whether or not we're going to find this a violation of the Code of Ethics. BLT: Mr. Chairman, I think I'd to bring your attention to the section of the County Code, relating to the reporting of gifts. And under the section of items which are excluded from the reporting requirements, item number 5, and this may or may not be relevant. Item number 5 for things that you're even required to report is anything available to or distributed to the public generally without regard to the official status of the recipient. And they're saying if you get a gift because you are the mayor or you get the gift because you are an elected official, or you get the gift because you are the head of the department, then that's related to your official status. But if the gift is something that's give you in the same way that it's given to members of the public, you're not even required to report it as a gift. I just wanted to bring that to you attention. CHAIR: Thank you. A very pertinent point. I think that just backs up my belief, the issue is not a violation of the County Code of Ethics. It doesn't violate the reporting of gifts, I think the Corporation Counsel has been very careful in making sure that issue was looked at by the Ethics Board, without making the decision on his own. It hasn't changed my opinion about it not being an Ethics violation. 3] SC: I do not feel it's a violation. CHAIR: Do we have motion? SC: I make a motion on Petition No. 2004 -01 that it's not a violation of the Code of Ethics. KI: I second the motion. CHAIR: It's moved and seconded that Petition 2004 -01 is not a violation of the County Code of Ethics. Is there further discussion? [None] All in favor? SC: Aye. KI: Aye. CHAIR: The Chair votes Aye. It is passed. It's not a violation. Mr. Ashida: Thank you. I just have one question. This is the first petition filed this year? CHAIR: Yes. PC: Yours was the first last year too. Mr. Ashida: Really? CHAIR: Maybe it didn't last. Mr. Ashida: Maybe if I issued directions to the Board of Ethics. Okay, thank you all. CHAIR: Before you leave... Mr. Ashida: Yeah. CHAIR: One of the things in Joel Gimpel's letter was that he was submitting his resignation because he's running for office. It's my feeling that his resignation should be submitted to the mayor. Can we accept that or should we... Mr. Ashida: I don't know, ask your lawyer. It has to be... BLT: We forwarded it to Wendell Hatada and he said that that would suffice. Mr. Gimpel is resigning pursuant to the State Constitution which has a provision that people who are members of Ethics Commissions cannot be actively involved in political campaigns. And so I thought when he informed me sometime ago that he was 10 looking at running, I informed him that there was a constitutional provision. So upon his filing for office, and their... CHAIR: Would... be it incumbent on us the to accept and file his resignation, or accept it... BLT: We'll accept the communication and file that. And the mayor's would be taking care of looking for another person to replace him. Mr. Ashida: That's why we're lucky to have Bobby. She's all over these things. CHAIR: We are very lucky. So I'll accept a motion to accept and file the communication. SC: Was it a communication, an official communication? PC: Ah hm. SC: Oh, okay. Then so moved. PC: Oh, you mean this? No, I didn't number it. SC: This is not an official communication? PC: No. BLT: FYI. PC: It's just a FYI thing. SC: So we don't need to file it. PC: No. BLT: Unless you want to number it and file it. CHAIR: Yeah, I think we need to. SC: What number, what do we use? PC: So that would be ten. BLT: 2004 -10. SC: 2004 -10, okay. 11 PC: So we treat that as one then, `cause it was one email communication. BLT: Yeah. SC: Okay. So, 2004 -10. 1 make a motion to accept and file communication 2004 -10. KI: Second. CHAIR: It's moved and seconded to accept and file 2004 -10. All in favor. SC: Aye. KI: Aye. CHAIR: The chair votes aye. It's accepted. We need a motion to adjourn. I'm sorry, we need to go into Executive... SC: I make a motion to go into Executive Session. CHAIR: It's been moved that we go into Executive Session KI: Second. CHAIR: All in favor. SC: Aye. KI: Aye. CHAIR: Okay. Moved to Executive Session: 10:35 a.m. Return to Regular Session: 10:50 a.m. CHAIR: We're now back in Regular Session. The Financial Disclosures submitted to review have ended up with 5 that we are unable to deal with... so do I have motion to accept and file disclosures number 2, 3, 4, 5, 7, 10, 11, 12, and 14. SC: So moved KI: Second. CHAIR: It's moved and seconded that we accept and file the numbered disclosures. All in favor say aye. SC: Aye. KI: Aye. 12 CHAIR: The chair votes Aye. Disclosures 1 and 8 are members of this board which we don't have enough to vote on. Number 6, number 9, 13 and number 1. Okay. Number 6, 9 and 13, 1, and 8 are deferred until next meeting. Okay that's done. That completes are business for the day. Do I hear a motion to adjourn. SC: So moved. KI: Second. CHAIR: It's moved and seconded that we adjourn. All in favor say aye. SC: Aye. KI: Aye. CHAIR: We are adjourned. (Meeting adjourned at 10:53 a.m.) Respectfully submitted, Paulette Cainglit Secretary Note: Blank lines indicate inaudible word(s) on audio tape recording. 13