HomeMy WebLinkAbout2006-08-03 Board of Ethics Minutes Special Meeting kda`
BOARD OF ETHICS
101 Aupuni Street, Suite 325, Hilo, Hawaii 96720
MINUTES OF SPECIAL MEETING
Wednesday, August 30, 2006 — 10:00 a.m.
County Council Conference Room
25 Aupuni St., Room 201
Hilo, Hawaii 96720
Present: Reeve Williams, Chair (RW)
Wayne Joseph, Vice Chair (WJ)
Kerry Inouye, Member (KI)
Ann Lum, Member (AL)
Kendall Sharpless, Member (KS)
Bobby Jean Leithead -Todd, Deputy Corporation Counsel (BLT)
Karen Delimont, Secretary (KD)
RW: Okay it is 10:00. The Board of Ethics Meeting will come to order and if it suits the Board
and the members of the public I would like to allow both Ms. Stocksdale and Mr. Olesen and
Mr. Safarik, if you needed some more time to read, Mr. Safarik I see you nodding your head
there, more time to read and digest the late handouts that they received so everybody just sit tight
for a few moments. And feel free to talk among yourselves, members of the audience. Any
objections, you guys?
RW: Here she comes
(Kendall Sharpless enters the room.)
KD: I thought you were going to be on vacation.
BLT: September.
(Break while members read the handout materials from BLT)
RW: Mr. Olesen, Ms. Stocksdale have you guys had a chance to review that stuff, are you ready
to roll?
KSS: Ready to rock'n roll.
RW: Okay, so Board of Ethics will come to order and we are conducting a special meeting this
day for the specific purpose of addressing two petitions filed by Ms. Stocksdale and Mr. Olesen.
And so, without any further ado, we would like to call for any statements from the public on the
agenda items. I think that Ms. Hirayama (KS) has a statement to make. Ms. Hirayama, would
you like to stand and deliver? Kathy? Either at the mike or - -I think Karen needs to hear this so if
you can sit there it is fine, or at the podium.
KH: I have no written statement, but I will give...
RW: Please identify yourself.
KH: Yes, My name is Kathy Hirayama, and I am the owner of Hirayama Brother's Electric, and I
will start with (cough). Excuse me I am having a problem with my asthma this morning
(clearing of her throat). I will start with, excuse me (cough).
RW: Take your time.
KH: I apologize.
RW: No problem. While she is getting her wind, are there any other members of the public, by
the way, who would like to speak at this time? Your okay?
KH: I am a personal friend of Gary and Debbie Safarik. I've known them for many years.
I have also worked with Gary when he was the Council Chair. I was his special assistant. And I
can tell you, honestly, those who know me, know that we operate our business in a honest
manner, and we have live in this community for, I cannot say, 50 years and operated a business
for 40 plus years. And I know, I worked closely with Gary, he was always an honest broker.
If he wasn't I wouldn't work with him. And while I worked with him closely as the President of
KIAA, he was my Vice President and I know that when he worked with me everything was done
in an honest manner. This is an honest man and I think if a mistake was made it was an honest
mistake. He would not deliberately do anything illegal, immoral, or against society's rules and
regulations. I don't believe that. So I'm just saying that his wife and him they are good people.
They believe in their community. He's a man who loves his family, he loves his friends, and he
really loves his Puna community. I know that'cause I saw it first hand. And so, I know that he
would never take money from anybody, especially the people of the Island of Hawaii. No way.
So, I'm just saying please take a real good look at it and I know that you all think that I am his
friend, so I'm going to back him up. No, I'm backing him up because it is the truth and I thank
you for your time.
RW: Thank you. Any questions from the Board? Ah, do we have another witness, or another
statement from the public. Please step forward and identify yourself.
ND: My name is Norman Dionne (ND). I'm a resident of Puna and live on Aweoweo Street,
and I also work at the Hilo University of Hawaii in Hilo. And what came to light when I heard
this about this issue. About communications basically. The residents of Puna and I saw this
handout come in the mail and I am not particularly a friend of Gary Safarik or his wife I only
know them through political service, that kind of thing. And I am here to tell you that I
appreciate these things. I didn't know what was going on till I got a handout - -the mail out.
RW: Which one? What is the date of that one? The cover letter. What is the date on that one?
ND: That is a good question. June 6. This is the June 6th one. So I find these things important.
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I work at UH Hilo and I am in charge of a mailing list called the "Ohana" mailing list of about
500 people. And invariably during political actions there is always someone who complains
about the content of something being mailed out through the mailing list as being improper or in
violation of some kind of laws. So when I dealt with the State Ethics Commission on this
question they said they take each issue individually and that the political speech, I should say the
political speech, is still allowed. We could not restrict that on the mailing list - -so what we did
basically, is we made each person individually responsible. But the point being is that
communication has to occur and there is not enough of it. And I would hope this commission
would keep that in mind. That we need to hear more from our elected officials. We don't hear
enough from them. I did make the complaint to Stacy Higa. That we don't have enough of this
from all the council people and maybe you, from the Council as a whole through the Chair, that
we need to hear more of things like this, because I didn't know about the road improvements and
how much money was being spent in a Puna area verse other areas and other districts. And a lot
of people that I talked to through political action have the same question. What's happening in
Puna, well here is the answer. And that's part of it right there. And I'll quote Mark Twain to end
this. Mark Twain said "If you don't read the newspaper you're uninformed, but if you do read the
newspaper you're misinformed." We need to have all the sources of information other than the
press. And so that's my testimony today.
RW: So that was the previous editor of the Kau Times, eh, Mark Twain?
ND: No, no.
RW: Thank you very much for your testimony.
ND: Thank you.
RW: Are there any other questions from the members of the Board?
AL: Mr. Dionne, would you tell me your last name again?
ND: Dionne, D- I- O- N -N -E.
AL: Thank you.
RW: What is your title?
ND: I am an Information Technology Specialist at UH. I have been there, as a student too, a
total of 19 years, and as employee, 13 years. And I have been given the responsibility of that
"Ohana List" because no one else wanted to do it, basically. And so, like I said, the purpose of
that list was communication, was discussion. To promote open discussion on faculty who were
very busy. And so I hope that things like this will continue. That we get things in the mail from
anyone, from everyone, equally. Thank you.
RW: Thank you. Questions from the Board? Okay, moving right along. I'm just debating if we
want to change the agenda from all of these filings. These communications. Our time is your
time, uh - -we can get right to the heart of the matter. Let me review this. Communication
number, uh our third item on the Agenda. I presume all of you folks in the audience have a copy
of the Agenda here? Our third item is communications in 2006 in which is the letter from me to
Mr. Safarik just informing him of this special meeting. And, is there a motion to accept and file
that, have you all read that, Communication No. 2006 -83?
AL: 83?
RW: Yep.
AL: I move to accept and file.
RW: Is there a 2nd?
WJ: Second.
RW: All in favor?
RW: Aye.
AL: Aye.
KI: Aye.
WJ: Aye.
KS: Aye.
RW: Ayes are unanimous. And Communication (b), 3(b), Communication No. 2006 -84 which
is the same, similar type of letter to Ms. Stocksdale. Chance to see that and review that? A
motion to accept and file?
AL: So moved.
RW: Second.
WJ: Second.
RW: Go for a vote, all in favor
RW: Aye.
AL: Aye.
KI: Aye.
WJ: Aye.
KS: Aye.
RW: Alright, number (c), 3(c). Communication No. 2006 -85 from, why don't I have my
announcement of a special meeting...
AL: 2006 -85 is an announcement of special meeting to Mr. Olesen.
RW: Oh, okay that's Mr. Olesen. Okay so it is almost identical to the letter sent to Ms.
Stocksdale, okay. So is there a motion to accept and file?
in
AL: So moved.
RW: Second.
WJ: Second.
RW: All in favor?
RW: Aye.
AL: Aye.
KI: Aye.
WJ: Aye.
KS: Aye.
RW: And finally on Communications Nos. 2006 -88, which is 3(d), Petitions No. 2006 -02 and
2006 -03 which is a Return and Acknowledgment of Service for Gary Safarik on August 10. And
you have that in front of you. And that might be very germane toward what we are going to talk
about here. Let me double check and make sure I have the right communication. That's his,
Karen correct me if I am wrong, that's his August, that's his long reply, right? Okay so is there a
motion to accept and file? Have you all reviewed that?
WJ: This one?
RW: Yeah, that's the where he
KD: There wasn't a date on the letter, but there was a date when it was received stamped on the
back.
RW: All his mailings - -there is his June 6th news letter, there is a July 6th, which is called
second quarter newsletter, cover letter I should say. So this is a key document here, we'll talk
about... Uh, so I guess we are going to need to simply at this point have a motion to accept it and
file if there is no further discussion.
BLT: What?
RW: Communication 2006 -88, Petitions 2006 -02 and 2006 -03 the Return and Acknowledgment
of Gary Safarik's...
RW: Do you see that, Mr. Safarik's letter back to us?
AL: 02 and 03 are the Petitions...
RW: I'm lost.
AL: So those are also going to be under new business?
RW: Yeah.
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KD: Oh, I'm sorry
AL: So what we are accepting and filing is?
RW: Wait, let's get some clarification here. Help us get organized here. Thanks.
KD: It's this.
RW: Ah.
KD: It's the Acknowledgment of Service of the Petition on Gary Safarik.
RW: Just that?
AL: So just this piece. This we can accept and file.
RW: So moved, second?
WJ: Second.
RW: Okay, all in favor?
RW: Aye.
AL: Aye.
KI: Aye.
WJ: Aye.
KS: Aye.
RW: Okay. Moving ahead to New Business. Ah, 2006 -02 and 2006 -03 seeks opinions
regarding possible charges of electioneering by Gary Safarik, Councilmember for District 5,
using the County of Hawaii stationary from County Offices with the County of Hawaii postage,
as alleged by Ms. Stocksdale and Mr. Olesen. Would you flip a coin and decide who would like
to talk first? Would you like to talk to this issue?
KKS: Everything is stated right? (Inaudible)
RW: I think so, yes. Do we need any further elaboration from Ms. Stocksdale?
KKS: Do you need elaboration? I just want to say one thing about the enclosure. (Inaudible.)
RW: Why don't you come forward and identify yourself.
KKS: Mahalo, my name is Kaniu Kinimaka - Stocksdale. Um, according to all the documents we
received only this morning regarding the enclosure of Mr. Safarik's omission to his - -he is
acknowledging, I'm using my words very carefully, because it was never my intent to hurt
anyone. This is an intent to call even plane across the board. If one council person can do this,
then why can't the other council people do the same? I commend Mrs. Hirayama for her
comments. There was never any question about the goodness of the Safariks. It was just to call
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an even plane across the board. I commend the gentleman, from Kau, Mr. Dionne. Am I saying
that correctly?
ND: No, from Puna.
KKS: From Puna. I commend him as well as he's correct. Our constituents need more
information. They need to be informed more readily. They need to see their public officials more
often so they can talk story and express their concerns. My doing this letter was only to call
attention the first article that was written. I believe Mr. Safarik gave a news, a press release of
some sort, that mentioned it may have been politically motivated. Well, if he sees it that way
then that is his opinion. I never once mentioned it in my letter to the Mayor - -I believe you folks
have copies - -that there was a website in question. I left it to the intelligence and the goodness of
the people to find it on their own. I only called attention to "was this appropriately done." Now
we find that Mr. Safarik has admitted that it was not appropriately done. And that is all. That is
fine with me, because now we are back to the even plane across the board with all the other
County Council members, not just one. So, the documents we received this morning that we
quickly reviewed states that he's agreed to and he's paid restitution, I am fine with that. As a
citizen of Puna Makai, an area where Mr. Safarik serves, I live in the area, I'm content. I'm
pleased, and now I put this baby to rest.
RW: Okay, um any questions?
KKS: Any questions for me? Thank you.
RW: Thanks.
WJ: Mr. Chair, before we - -I would like to make a public disclosure. First of all I am a
constituent of District 5, Council District 5, and I was also a recipient of one of the letters sent by
Councilman Gary Safarik But I remain unbiased in making a determination on this case.
RW: And thank you for the (inaudible). I too would like to make a disclaimer and say that I am
personally from that area and personally friendly with Mr. Safarik, Ms. Stocksdale, and have met
Mr. Olesen a time or two in my travels when I was previously working with the Department of
Education and also issues involving Mrs. Hirayama. So I too think I bring no bias whatsoever to
the meeting, as the Chair of the Board of Ethics. And I think this has becoming increasingly
irrelevant as we progress. So, Mr. Olesen do you want to hold forth?
NO: Yes. I just have a few (inaudible) points that I want to bring up, and the first started with
the mailing. It was a very unusual mailing that I received because it was mailed to Elizabeth and
Norman Olesen. I haven't the faintest idea on which database we are listed as Elizabeth and
Norman Olesen. Certainly not a voter database. It has got to be something else. So I said, well
okay, it came out as an official piece of correspondence. I'd like to know where I received this
and who else received this, understanding that it was an official documentation from the County
of Hawaii, and I would like to know who got the rest. Well I tried two or three times to get the
database who received this communication with no luck whatsoever. They refused to
acknowledge who received it, which is important because I happened to agree with what the
gentleman here said, that information out to the public is very important - -if this was a selected
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mailing, and not the 8,800 registered voters in lower Puna. I even questioned that part. The
thing I want to know is, it is not the honesty of Mr. Safarik that I am questioning.
I'm questioning the propriety of what he is doing. He is an elected official. His ethical standard
has got to be just a little bit higher than the general public. I feel this is very important. If there
was any question or doubt in sending this out he should have contacted the ethics committee
ahead of time and said "Here, is there a problem with this mail out." Now, I believe that is a
common mistake. If there is a questionable mail out or a questionable thing, they do go to the
ethics committee and find out do I have a problem with this particular mail out, or do I have a
problem with doing certain things. Am I violating the ethics law? I feel that should be adamant
with the elected officials because they are responsible for public trust. If it was inadvertent, fine.
Hopefully that inadvertent (inaudible) does take place in the future and that everybody can
understand or learn from it. This particular session, you folks have to be very, very careful when
you put something out there on public stationary because then it becomes public knowledge.
And that is about all I have. I hope this can be resolved very easily. Like I say, it sounds like it's
an honest mistake made by Mr. Safarik If it is so, and you the Ethics Board feels that that is
correct, I have no problem with that. No problem whatsoever. Thank you.
RW: Sounds good, thanks. Are there any questions for Mr. Olesen? Let the record reflect, I
think at this point I want to make the record reflect that both Mr. Olesen and Ms. Stocksdale
were referring specifically to the package in their Petition filing which was the so called Second
Quarter 2006 report. That's the one, specifically which has the last line, as an afterthought,
I gather on the 2006 report which was mailed to the majority of the constituents, as I understand.
That is the one with an afterthought, it almost seems "Please check out my website at
http:A \Garysafarik.org." which was a campaign website. And I think that is the heart of the issue
here. Not prior to June 2006, which was a letter Mr. Safarik put out on County stationary. It's a
cover letter, with the same identical enclosure attached. So, we will come back to that point and
we can discuss the pros and cons of that in a moment. I want everyone to understand that the
specific charges that you two brought was related to that July, we presume July, Second Quarter
2006 mail out. Correct? Okay.
NO: We didn't receive it.
RW: You didn't? You did not receive it?
NO: We didn't receive the first one.
RW: Ah, you didn't receive the first one. Well okay. Well okay.
KKS: May I ask a question?
RW: Yes.
KKS: Mr. Joseph, with you living in Puna Makai, did you receive the first?
WJ: I did not receive the first. I only received the second mailing.
KKS: Did you receive the first, Mr. Dionne? The first mailing?
ND: Which one? The June one? Yes.
KKS: You did?
ND: Yes. I did.
RW: Can we ask Gary Safarik to go to the mike and continue this same thread of conversation?
GS: Right here?
RW: Yeah, sure.
GS: Thank you.
RW: So please identify yourself.
GS: I'm Gary Safarik, and I reside in the Ainaloa Subdivision. And I represent - -this is my third
term on the Hawaii County Council, my first term beginning in 2000. First of all, it seemed that
when I reviewed the way that we normally communicate with our constituency in Puna, it struck
me that we don't have all the necessary avenues that, let's say, somebody that would have cable,
that would have access, lets say, to other means of receiving the news. And so, in my three
terms on the Council I discovered that even though we did mailers and we did radio, and that we
did town hall meetings, and we communicated via internet there was always somebody that
would come to me and say "I don't know what you are doing, you need to increase your
communication capabilities." And that has been something that I have been sensitive to over the
last six years, is how I can effectively communicate. When we sent out the first mailer, the first
mailer, if you refer to your packet, you will notice that its with my signature. I have a kind of
unusual way of signing my name, looks kinda like chicken scratch. But that it's me signing it.
And if you refer to that, it would be dated June 6, 2006, and I begin "Aloha Friends."
RW: Have you seen that Ms. Stocksdale and Mr. Olesen? Do you need to see a copy of that? It
is the June 2006 mailing. It's the first one, right, in which there is no mention of the website.
Okay.
GS: But on the back, or attached to that cover letter is documents that were not changed. And
that, basically, just gives an outline on all the various capital improvement projects and programs
that we were doing in Puna over this last 18 months. I felt especially a need to communicate
with our Puna population because of our community development plans right now. We've got a
steering committee and I needed to receive as much input back from our constituency as possible
on some of the issues that we are going to be dealing with in our community development.
RW: Let me just interrupt. So, thank you. Let the record also reflect that the attachment or the
enclosure to the letter, which is called "Subject: Update on Project and Program Funding for
Puna Makai" is also dated June 6 and is identical to the case of both letters, both mailings. So
the first mailing went out, was only around June 6. I don't know the exact date of that, but with
this enclosure, here. The second mailing went out later. Subsequent mailing went out with the
identical enclosure, with a different formatted cover letter, which was the offending cover letter.
I think if I've got that right.
M
GS: ...and from, let me just back up. From my indication, all indications from the complaint did
not reference a website. It just referenced that we weren't supposed to send out any kind of
communication. That's how it was characterized. In fact, Mr. Olesen and Ms. Stocksdale both
characterized it as electioneering, because I wasn't supposed to communicate, apparently, with
my constituency. And that was based on this first, I should say that was based on the second
mailing that they received, because they didn't receive the first one. However, I think the
research will show that it is an authorized expense and that we do have a budget in our council
contingent funds, I should say our council district funds, to allow for this type of mailing. It was
characterized by Ms. Stocksdale and Mr. Olesen that this never has been done in the past. And
Mr. Olesen characterized it as being a 17 -year resident and saying that in his past he has never
seen these types of mailings, when in fact we have done mailings in the past. And I can
reference those if this body requires it. But I don't think that was germane to the issue. I think
the issue is that according to our ethics laws that, I've done some of my own research and I
believe you Corp. Counsel personnel have, that it is an authorized expense of taxpayers money to
communicate with the tax..., with the constituency on. I can't recall it's... based on legislative
updates, that you may send letters of updates to the constituency. And that is purely what I was
trying to achieve with both mailings. Now, I would like to reference to the first mailing...
RW: Can I interrupt, just for a moment or two, because this is point in which I need to make
crystal clear I would like the record to include all of this. BJ, can you help out with that? Staff
atttorney.
BLT: If you reference the handout that I presented to the Board I collected a number of informal
advisory opinions and documents from both the Hawaii State Ethics Commission, the Honolulu
Ethics Commission, Campaign Spending Commission, a copy of the Hawaii County Council
Rule 33 regarding the district allowance and also have some references to my emails with
Ms. Kiriu regarding the cost, and my phone conversations with Mr. Safarik. I've also included,
as an attachment, number nine, a legislative newsletter which was sent out by Representative
Jerry Chang. And that is one of the standard legislative newsletters that is frequently mailed out
from the State Legislature and paid for by the State Legislature's legislative allowance. To
summarize the opinions it's basically saying that legislative newsletters are an appropriate
expenditure from a legislative allowance, so long as you do not mix the legitimate legislative
functions with any campaign function, and the Informal Advisory Opinion 2005 -5 from the State
Ethics Commission...
RW: Which you all have copies.
BLT: ... addressed a similar situation where there was an official piece of information that was
sent out and the information in the publication was legitimate except for the fact that the public
official referenced what turned out to be the campaign website. And they looked at that and
having determined that it was a campaign website said that it was an inappropriate mixing of
those two functions and the end result was the legislator reimbursed the State for the cost of that
inclusion. And what I find interesting is that they did not ask him to reimburse the entire cost.
What they did is they calculated what the cost of including the reference to his website was
because they didn't invalidate the entire mailing. In this case, my understanding is that Mr.
Safarik has already done his own calculations and has submitted a check to the County.
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RW: And he having already been aware of the State Ethics ruling, I presume.
GS: Yes sir, Mr. Chairman, when I looked at the complaint and I thought to myself that I am
allowed to send the information out. So I looked at the first one. I couldn't find anything wrong
with it, but I sat down with my aide Ashley, and I said that I think maybe there was an
inadvertent situation that occurred here. And that is where I was getting to in my explanation, if
I am allowed to continue....
RW: Yes.
GS: So, when we sent this out, I had personally seen this document and signed it myself.
Reviewing it and feeling that there was no impropriety at this particular document...
RW: What was the date of that?
GS: That's the date of June 6, 2006.
RW: Okay.
GS: If you reference that one and look at that one and the other mailing, my signature situation
is different. That is my explanation. Now come July of this year I had, we had made the website
and it was going through some tweaking effort and which, incidentally, we really didn't reference
it as apolitical website, it was just an informational website. I don't have anything to do with
fundraisers there or any of that nature. It's just primarily the same information, but, I guess with
a political stance to it. So when I reviewed it, I believe that there could have been an inadvertent
issue there that I didn't catch at the beginning. But wanted to at least address this body so that
you know that the minute we discovered this, I felt that rather than go any further we stop the
mailing with that reference of website. And I decided that if there was going to be any reference
to it from this body, that I should pay and at least acknowledge that if there is an impropriety- -
which I believe was inadvertent - -and I don't believe that it was an impropriety, because I think
you have to have a motive to do that. My motive was purely to communicate to my
constituency. So moving back then, come July, my website finally was finished. And I was on
the road at various meetings and my secretary, Linda Swallow said "I've got the second mailing
document ready for your approval" and I said okay, go ahead and just read it to me over the
phone. And so I was driving, I was on my cell phone. And so she read the whole thing and then
she indicated, she said "Please check the... (you know, because everything was the same as the
first mailing) but she said "I added, Please check out my website at my Gary safari k.org."
RW: Your secretary took up that issue on that?
GS: Yeah, she put -- because I had said we needed to have an email address.
RW: I see.
GS: So, I didn't -- I really did not, as much as I thought about it that day - -I didn't recognize that
this was a political website, and that it needed to be at my County email address, there, rather
than my website. When I discovered it, that's when we decided that we were going to -- whatever
the issue may have been as far as cost and postage type things- -that we would just pay for it out
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of my own pocket. And then allow this body to determine whether or not, in your wisdom, that
this was an intentional or unintentional. Or if in fact it was - -even in fact if you have determined
-- if it is a political website, because I don't think that determination has been made officially.
I would recognize that, if I was sitting in your seat, I probably would recognize it as a political
website.
RW: Well, it certainly is not a legitimate County website.
GS: Its not. So therefore, I decided this inadvertent situation that I did, there was no motive to it
other than it was a method of communicating.
RW: Questions?
AL: Well I think also, if I remember correctly, when I checked out the website I think at the
bottom it does say "Paid for by Committee from Puna to re- elect."
RW: So, it's no disputing the website.
AL: So the blurb at the bottom I think that puts it...
GS: That's why I didn't, as much as I thought about that situation beforehand, it didn't dawn on
me. It really didn't dawn on me that this was a situation that could be construed as being
inappropriate or improper. So when I discovered it - -and there was no mention of that in the
complaint - -but I took it under review, because I take this type of thing very serious and
discovered that there might be something here we needed to correct. That is what I did. And so
that will never be referenced ever again.
RW: I'm sure the constituents, nonetheless, and those in this room appreciate your due diligence
in that sense, so... Yeah, I also want to clarify a point that that second quarter letter was a
stamped signature and not Mr. Gary Safarik's personal signature.
AL: But he does say that it was read to him.
RW: It was read to him, right, okay. So the heart of the matter as it turns around to the second
quarter cover letter. That's the real issue. That's the linkage of government communication;
Official government communication making reference to some campaign matter, however vague.
Check out my website, that was the offending linkage, per se. And, ah, Ms. Stocksdale and Mr.
Olesen are you comfortable? Do you understand that the June 6th letter cover sheet was
legitimate and legal, allowable, are you aware of that?
NO: I've never seen it.
RW: Right, okay, I get it.
NO: I didn't make any statement.
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RW: I understand your comments as I pointed out already. Both your comments, charges, are
based on the second quarter mailing. And whatever was it your research, your diligence or just
your instincts that said that was a no, no? He just crossed a line here, in a sense.
NO: Essentially.
RW: Essentially. The opinion we have here from the State Ethics Board is just virtually
identical to that. Although Mr. Safarik explained why he feels perhaps, that his offense is a
lesser ones than this, even, the point is, was the second quarter cover sheet contained the link to
the
website - -that was the issue. Mr. Safarik is taking the initiative, if I've got it straight to rectify
that situation publicly and to refund the County Director of Finance for the amount incurred for
all the postage and mailing expenses associated with that second quarter mail out. Is that
correct?
GS: That is correct.
AL: I think it should be clear that, to me, it comes under this commingling. That would be
advisory opinion of our little reference number six, the Advisory Opinion No. 04 -04 references
in the last line, it says "Its the commingling of ...." So that the part that's the update on project
and program funding is not, doesn't seem to me, to be any different than the first one.
RW: We are scrambling to find where you are. Where are you?
AL: I'm looking at this document that was handed out that had all the little numbered... and its
page 4, number 6, this one that Bobby handed out with all the little numbers on it.
RW: Yeah.
AL: ... and its number 6?
RW: Public doesn't have this document, I don't believe.
AL: Page 4. At the top the Advisory Opinion No. 04 -04 references legislative rules that prohibit
joint use of campaign funds and legislative allowances to pay for newsletters. So the opinions
prevent the use, anyway that's campaign funds. But what it mentions here is the commingling so
that's the...
RW: So (inaudible) to the exact offense, as it were.
BLT: Actually, that opinion there had been prior legislative practice where the legislative
allowance has changed over the years and in some years there was not enough money in the
legislative allowance for legislators to mail a newsletter to their entire district so they had gone to
the campaign spending commission and asked "Can I use my campaign funds to pay for mailing
out my legislative newsletter ?" And earlier, back in 1998, the campaign spending commission
said yes, you can spend your money because it is a legitimate, related duty to being an elected
official. But, since 1998 there have been concerns at the State Legislature that by using
campaign funds to pay for the newsletter there was an appearance that the newsletter was now a
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campaign piece rather than a legislative newsletter. So they in enacted rules in the State
legislature to say, no, if you are going are going to mail a newsletter it is going to have to be
strictly paid with the legislative allowance. Or if you're going to send a separate newsletter paid
by your campaign funds, it has to be paid strictly by campaign fund. But you cannot take a little
bit of this money and a little bit of that and spend it on the same piece because they were
concerned that the lines would get blurred in terms of what was an official legislative piece and
what was a campaign piece.
AL: Okay, thank you.
RW: So, we are getting way too much detail here from (inaudible) on this thing. I think the
selling point here is - -for you to get it - -that your link to the campaign website with the
Government stationary was...
GS: Mr. Chairman, I would like to make a further statement. If you will allow me, that whatever
your rulings are in this body, I would ask that you rule two things. First of all, the first mailing
was an appropriate use of taxpayers' money, and that communication was authorized. The
second mailing, although identical to the first, did contain reference to a website that was not
appropriate. That I did not intentionally and it was an inadvertent situation, because although
when I did get that information over the cell phone from my secretary, I really did not focus on
that addition. It escaped me. And therein lays the truth of the whole matter.
RW: And that sounds like logical way to proceed if the Board feels...
WJ: I do have a couple of questions.
RW: Sure, shoot.
WJ: Your second mailing. Exactly how many people received this second mailing?
GS: We sent out 400.
BLT: There is actually a clarification. And that is because Mr. Safarik sent 400 pieces down to
be mailed. But they had not all gone through the process and the complaint came in and the
County Clerk, when the complaint went to her, immediately stopped the rest of the mailings
from going out, because she did not want to, if there was a problem, she did not want to make it
bigger that it had to be. So there were actually only 122 pieces that were mailed in July because
the County Clerk stopped the rest from being mailed out.
GS: Well, I didn't realize that.
WJ: Well, I never won anything in my life but I was one of the fortunate few that got one.
(Laughter)
RW: Got your lucky stories.
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WJ: But, if I could continue on that. It may be legal to do this, but as a constituent from your
district, as a voter of the State of Hawaii, I always thought this was an unfair advantage that an
incumbent could do this during an election year. And...
RW: Or anytime, or only during an election year?
WJ: Well, specifically doing it in an election year. When I personally received it in July, I
thought it was just a campaign message, and I had the same thoughts. It is on an official
letterhead. You are using the power of incumbency to promote yourself during an election year
and it does show an unfair advantage to those that are running against you. I personally would
have hoped an elected official would have used their own funds and not use taxpayer dollars in
doing this. I fortunately, again yesterday, received your beautiful color advertisement in the
mail, promoting yourself as a politician and I know that was at your own expense. But what also
bothers me is you say that when you discovered - -now, if not for the fact that someone brought a
petition against you - -would you have discovered it?
GS: No. I think that I would have probably; it would not have been readily evident to me that
this was a problem. That there was a problem with this website, it would not have been. I would
have, I believe, caught it. I don't know that it would have been at that particular time. I think
where I would have caught is after I was going to do the third mailing, because I think that on the
third mailing we were looking at not doing a mailer, that I was going to utilize my district
account which is authorized us to do that, because, come July, I believe it was July 25th was the
last filing deadline for running for office. And I made a mental note that I wasn't do anymore
district type mailers utilizing district funds anytime after that because I was following the rule of
the State Legislature. We don't have a rule like that with the County, but I was sensitive to it.
So, I think to answer your question, I would have found it. But, I probably would not have
found it as quickly, sir.
WJ: I guess the only other comment I would have to say is when you make a mistake I think it is
good to admit that you made a mistake, and unfortunately I haven't heard you say that.
GS: Well I sure admitted that I have made this error in this putting my website. There is no
doubt about it. That's why I felt that I was compelled to pay that particular portion back, but I
want this body to know that it was not done maliciously. I did not do it consciously to have an
unfair advantage because I think I view that comment that you made from the stand point of
being when I wasn't an elected official. I would have probably had the same feeling, `cause that
is the way the way you view the rule. When I am an elected official I wonder, just because it
was an election season, does that mean that we stop representing the people. That is the other
side of the brain that I thought about. I still represent the people, even though I have to go out
and sign wave, like I did this morning. I still have to come over here and conduct my business,
because that is what I am responsible for. I felt that the only way that the people of Puna are
going to recognize what has been happening in a positive sense, because we've had such a bad
reputation over the years, and very little infrastructure and improvements that this was a way of
showing the people, especially at this time frame that even though, in the past Puna has not been
identified as a priority, that Puna has now been identified as a priority for administration
(inaudible).
15
WJ: Since you brought that up. I am real curious why did you select 400 individuals, why were
those 400 targeted, rather than the entire district?
GS: I wasn't going to send it out to the entire registered voter list, what I was trying to do was hit
all the associations that the community leaders, the neighborhood watch people, the people that I
communicated with, but that were also registered voters.
RW: Was there any budgetary constraints?
GS: No I was trying to just be, it was a selective mailing, it wasn't a broad brush, and that's why I
guess I didn't view it as political mailing, because it just was identifying what the...
WJ: But then in this event, Elizabeth and Norman Olesen, how did they make your mailing?
GS: Ah, we tried to send it to the various subdivisions, and it was done through a random nature
that we just picked out names and did it rather than the whole mailing list, because we took it off
the voter registration forms.
KS: I believe Mr. Olesen brought up the question, or the issue that he was not able to get
information as to where his name appeared on what list. You were seeking the information
about what was the source of the database.
WJ: I am real curious as to how I made the list.
KS: ...and so I'm asking you guys, is there also an issue of access to information in terms of
where did you get my name for Mr. Olesen. I'm just asking as a point of discussion, and do we
need to consider it. I'm just asking that.
GS: I can clarify that.
WJ: I know that I am on the voter registration list, and I know I'm a registered voter.
GS: That's how I made that list, it was purely through voter registration, we sent it out.
RW: For both mailings? For all mailing that you did, it was from the voter registration list?
GS: Except for the first one. I did not have a cover letter that I sent out to all the neighborhood
watch programs and...
WJ: Now see, and I am sorry for doing this, but I need to clarify it in my own head. I'm an
intelligent person. I read the newspaper regularly, and I take an active part in the community.
I'm sure Mr. Olesen is too. Why would you select informative people to send your mailing out
to, when earlier you said it was more important to get to the voters who may not be reading the
newspaper or who may not be listening to your ads. Why were informative people selected?
RW: What do you mean by informative?
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WJ: Well, I consider myself well informed. I read the newspaper daily, and I take part and I
listen to political discussions and I was on his mailing list when earlier he explained to us that it
was the other voters, the ones that not necessarily reads the newspaper or listens to the
commercials.
GS: I think you misunderstood what I am saying. I purely picked out the names in a random
nature. That is all it was, it has no method to it other than just a random mailing. What I
mentioned is that we had a mailing that did not have a cover letter to it. That I sent out same
information that just said legislative update that went to neighborhood watch programs and the
community associations.
BLT: May I. I'm going to interject something here as legal counsel. While I understand some
of the direction of some of the questions, the real issues before the Board is whether the - -there
are two issues - -and one is was the letter legitimate legislative newsletter that's allowed as part of
Mr. Safarik's duties and under the Council rules, which provide for this district expenditure fund.
Then, actually there are three questions, that is whether the newsletter is legitimate expenditure.
The second is whether the Garysafarik.org is a campaign website, which I think he has already
acknowledged, and third is the reference to the campaign website and whether that was a
violation of the Ethics Code because it reference a campaign website. And those are the real
issues. I don't know that the Board has the authority to go into the methods or the rational for
legislators' selection of who is on the mailing list, if it's a question of was it legal for him to mail
it out. And if you look at the opinions I think you can, and the rules you can draw your own
conclusions about the newsletter itself was appropriate.
RW: Yeah I was bothered. I would like to second that. By the way we are going way beyond
the scope of what we are doing here, so I think we've pretty much discussed it. Now, if there are
some really burning issues, Kendall, Wayne, any of you (inaudible). I think we are going way
beyond the scope of this issue. You have heard the view of one decision at least, the opinions.
I think that we all understand from Political Science 100 that incumbency is definitely an
advantage across the nation, in all levels of government. So that just goes without saying.
I understand the thrust of what you are saying though. It was a selective use of government
funds to a selective audience, that is the gist of it. That's not really what the charge was here, so
much. We have the June 6 mailing. We have basis up front, for knowing that was perfectly
legitimate, legal, allowable, and legitimate. Any questions about that? Ms. Stocksdale?
KKS: Yes. June 6 was never in question in my petition. Our petition only addressed the July
mailing so why is June 6th being pushed into the issue? I don't understand.
RW: Well, there were two mailings. How did this happen, that was the issue. How did this
happen? Here came one that was signed...
KKS: Is this for a comparison? Was this also part of my petition?
RW: No, your petition, that's right.
KKS: Just the July mailing.
RW: Just the July issue and that is what we will narrow the rest of this hearing to, just July.
17
KKS: Just the July issue.
RW: Right.
KKS: Thank you.
RW: So on the July issue. Do we have a basis for an informal opinion? It seems to me that we
do.
BLT: If the Board feels that you have enough information to render a decision you can do so
today. And then when you make your decision you can direct me to write an informal advisory
opinion, with specific findings, and then you would adopt it at the next meeting. You would
actually vote today, and then you would vote at the next meeting to adopt the opinion that I will
draft for you.
AL: So are we ready to do this?
RW: Well we have a (inaudible) that the July 7th mail out was inadmissible, basically and we
have restitution for that from Mr. Safarik. Now the question was the $252.00 for 400 or for 122
mailings, I think that is the...
GS: Mr. Chairman, if I could. Just in summary whether that is more or less, I'm sure that the
clerk can determine what they need to do. But I can assure you that I do recognize the problems
that this second mailing with that website reference has caused, especially for some of the
constituency. Mr. Joseph, I address you as one of my constituents, and of course the whole
Board. I can assure you I have soul searched and I have recognized I have crossed the line and
never will I ever get into that situation again. There is really no excuse for it. It happened and I
want to identify that and I discovered that this was wrong, a wrong reference that I sent out this
website on this mailing.
RW: Thank you for being alert citizens, Ms. Stocksdale and Mr. Olesen for servicing...
GS: But I am not skirting any issues here. I recognize and I can tell you straight that I needed to
correct that improper reference and that will never happen again, and I felt that by paying
whatever my calculations methods was, whether it was up or down, I would rather just let that
stand, and have this body decide. But I think it was a very good learning experience, not only for
myself but for other people that are involved in that perception of being the incumbent and
having what you, Mr. Joseph, characterized as an unfair advantage. I don't know that it's done,
that advantage has... I think sometimes it is a perception and in this case it manifested itself in a
newsletter, or a legislative update that had reference to a website that shouldn't have been there,
and that I fully accept that responsibility.
RW: So properly chaste. Mr. Safarik, so thank you. Any further questions for Mr. Safarik, or
any of the others?
AL: Are we going to do three parts to this decision?
In
RW: No, I think actually, I think Ms. Stocksdale is quite right, and we should rule basically on
the issue that she brings forth...
AL: Yeah, just on that petition.
RW: ... July mailing. We assume July mailing and we can rule just on the basis of that for the
reasons we have, essentially, in front of us from the Hawaii State Ethics Commission is a
perfectly legitimate reference, wouldn't you say?
BLT: It's remarkably similar because it is an ethics opinion that addresses a reference to a
campaign website. I, frankly, was surprised to find something that was that close to this situation
had already been decided by the State Ethics Commission. So I thought that it was really the
most relevant information that I could bring to the Board.
RW: And, I would also like to tell the public that we're blessed, really, that Bobby Jean
Leithead -Todd is our staff attorney. She was a key person in drafting ethics legislation for the
County of Hawaii, (inaudible). She was a councilwoman, councilperson, and she is a diligent
researcher who has hit the nail on the head in finding this State Ethics Commission ruling that is
identical to this. So, we are not coming at this, as I say, with any bias. We are not coming at this
with any blinders. We are coming at this coming at this in front of a community body. None of
us are here for money. We are here to do a public service, and I think we have heard enough to
make a ruling on this, don't you agree?
WJ: I do.
RW: So, unless you have any further testimonies offered, or further statements from the public I
think we can get onto the business of making a ruling. Specifically in regards to the two
complaints that Mr. Olesen and Ms. Stocksdale having to do with the July 2nd quarter mailing.
So, is anyone brave enough to make a motion here. We are abiding by, by the way, by the rules
of practice in which we will determine an informal advisory opinion, and...
AL: It's always the wording that gets you.
RW: Yeah, the wording. We just have to word it, essentially, ah we all know. I think, for the
record here that Mr. Safarik has been up front in saying "Hey, I recognize that the 2nd quarter
mailing that you attested was beyond the scope, (inaudible) he made restitution, made a public
apology and again this morning, so we will proceed (inaudible).
WJ: Do you want me to try?
RW: Give it a shot.
WJ: I would like to make a motion that we find that Councilmember Gary Safarik was in
violation of Hawaii Ethics Code 2 -83 and that on his second mailing he listed his campaign
web site.
RW: And can I put a qualifier in there and say that it was inadvertently or something to that
effect? Or do you want to say he was directly...
19
WJ: I would like to leave the motion as it stands.
RW: ...as it stands ... in violation...
AL: Can somebody write it down so we can repeat it?
RW: Where is our clerk - steno?
AL: That he was in violation of...
KD: We find Gary Safarik in violation of Hawai'i Ethics Code 2 -83 on the second mailing when
he listed his website...
KS: Section (b), (inaudible) as it references the specific (inaudible).
KD: Code 2- 83(b), right?
RW: And ah, and has so acknowledged it? Can you add that, that he acknowledged that?
AL: And made restitution.
RW: And made restitution, fair enough.
WJ: And has so acknowledged and made restitution.
RW: Yeah.
WJ: Okay.
RW: Okay do we have an amended resolution there?
WJ: Give me a second.
RW: Okay so far so good. I was just looking at (inaudible). Okay is there a second to that?
Would you, Ann you were taking notes, lets read that back.
AL: No, I didn't take notes. She is, Bobby is taking notes, and Karen has them.
RW: Please read it back Karen.
KD: Okay, so the motion is; We find Gary Safarik in violation of Hawaii Ethics Code 2 -83(b)
and on the second mailing where he listed his website and he has so acknowledged and made
restitution for it.
AL: We probably should say, campaign website?
KD: Campaign website
20
RW: Kendall?
KS: Um, Section 2 -83 has a lot of points in it. I think it would be most fair and most clear
communication to specify.
WJ: Section (b).
KS: Exactly.
WJ: Item number (3).
KS: Section (b) and which item? (b)(3)?
WJ: (b)(3).
RW: Okay, (b)(3).
WJ: To be very specific.
KS: Yeah.
KD: So 2- 83(b)(3)?
RW: Will someone read that in its entirety?
KD: We find Gary Safarik in violation of Hawaii Ethics Code...
RW: Councilman Gary Safarik...
KD: Councilman Gary Safarik in violation of Hawai'i Ethics Code 2- 83(b)(3) on the second
mailing where he listed his campaign website.
RW: Okay and what is 2- 83(b)(3)?
KS: Well, wait...
WJ: but, but, "and he has so acknowledged and made restitution."
KD: ...and he has so acknowledged and made restitution for it.
WJ: And I think that's...
AL: There is only one other thing it should be. Okay, where it says we find Councilman Gary
Safarik has violated Section 2- 83(b)(3), in that he listed his campaign website, because it is not
the whole thing, it is only the part where he listed.
RW: Yeah, that's good, that's good.
21
AL: ...in that he listed his campaign website in his letter.
RW: I second that. That is a good point.
AL: Yeah, the violation is because he listed the website.
RW: Good thing we don't have to write a whole paragraph, huh?
BLT: Actually, Mr. Chairman, I will probably be drafting something that looks similar to the
State Informal Advisory Opinion where I will layout the various pieces of information. I will
have references to the letters and quote the language of the letters, and I will also make
references to the various informal advisory opinions that I presented to you so that it is a full and
complete. And then at the next meeting you can review what I draft and if it does not reflect
what the Board feels reflects what occurred at this meeting - -the information that you had - -you
can make amendments to it. So I will provide it as a proposed order for you.
RW: So say it to me. Let me hear the following language one more time, Karen, and I will
recap and we will give it to the real wordsmith among us.
KD: Okay, let me see if I have this right, now, motion; We find Councilmember Gary Safarik in
violation of Hawaii Ethics Code 2- 83(b)(3) on his second mailing in that he listed his campaign
website, and he has so acknowledged and made restitution for it.
AL: I second it.
KD: Thank you.
RW: All in favor?
WJ: Any discussion?
RW: Discussion first? Any further discussion?
BLT: There is one thing that you may want to address, and perhaps acknowledge. Mr. Safarik
reimbursed the County to the tune of $252.00. The information I have from Ms. Kiriu indicates
that the actual costs of the July mail out, because she prevented further Xeroxing, and further
mail outs, was actually in the neighborhood of $125.34. The Board has the authority, though, to
accept Mr. Safarik's payment even though it is above the actual cost of the mail out as a
appropriate restitution and you could say that perhaps to reflect that it also takes care of any time
that may have been spent by employees in the production of the document, that the $252.00
dollars....
RW: Mr. Safarik are you willing to ante up.
GS: Yes, I would like that.
RW: So, is there a motion to accept the full $252.00?
22
WJ: Well, I think there is a point of order here. There is a motion and a second on the floor and
we need to vote on that first.
RW: I think you are right Wayne. We should settle our... and address this as a separate issue,
yeah. So, we have the motion and we will come back to that. Bobby thanks for bring it up. We
have the motion. The motion was the same essential language that Karen has read three times
now, and it has been clarified, it does not need further clarification. We've had a second, we've
had a discussion, all in favor?
AL: Aye.
KS: Aye.
KI: Aye.
WJ: Aye.
RW: Chairman votes aye. It is unanimously in favor of that. There is a second issue and as a
closer to all this we ask Mr. Safarik if he is willing to, he has over submitted his payment for
$252.00.
BLT: No, the Board has the authority to accept it.
AL: Accept it...
BLT: Even though it exceeds the cost, as a fair
RW: ...restitution
BLT: ...restitution under the circumstances, and possibly including the cost of employee time.
RW: Alright is there a motion to accept the full restitution? The full amount made Mr. Safarik
in good faith, to wit the cost of mailing and double that.
AL: I move that we accept it as fair restitution, the amount that he submitted as fair restitution
that would include any unnoted time.
WJ: Excessive copy costs.
RW: Is there a second to that?
WJ: Are you adding an excess of County cost?
AL: The what kind of cost?
WJ: The excess of County costs.
AL: Excessive.
BLT: Incidental County costs.
23
AL: Yes, incidental County cost, exactly, thank you. It would include any incidental County
cost.
WJ: I'll second.
RW: Discussion?
KS: Now, I have no concept of what incidental County costs are.
RW: That would be us being here today.
KS: Pardon me?
RW: That's us being here today, for example.
KS: Well, but in terms of how the Councilmen offices run, he has a paid secretary. I am not
comfortable with making a judgment that anything other than $125.00, which is the cost of
mailing, be accepted because we have had no discussion of any kind of comment from
Mr. Safarik or anybody about whether the secretary was using the Xerox machine, how much ink
was used, yaddah, yaddah, yaddah... And we just don't know and I don't feel comfortable taking
a guess at that.
RW: Actually, the County Clerk does know and she has sharpened her pencil on it that very
issue. So when she came up with the number she sighted $125.00. That was actual County costs
as determined by Constance Kiriu, the County secretary.
KS: No, I'm very, I'm not very comfortable. But I accept the accuracy of $125.04. But the
remainder, $125.04 taken from $252.00, I'm not comfortable in doing.
RW: You don't feel like we should take it?
KS: No.
RW: You don't think we should take it?
KS: No.
RW: Mr. Safarik has offered to give it.
KS: I know, but you're asking for discussion. That's my feeling.
RW: Okay. So we have one objection. So that is the end of discussion. We have a motion on
the floor to....
GS: Mr. Chair, Mr. Chair.
RW: Yes?
24
GS: If it would be easier for this body, I can rewrite another check.
RW: No, we understand your willingness to comply. You also demonstrated good faith in
offering to just leave it as is. So there is $125.00 extra into the County coffer as a result of this.
Um, so that is the motion and we had a second, and we had a discussion. So I will ask for a vote
on the original motion to accept the full $252.00, all in favor?
AL: Aye.
WJ: Aye.
RW: Aye.
KS: Nay.
KI: Nay.
RW: One abstention, one, two, three ayes, and one against.
BLT: Mr. Inouye voted no.
RW: So we have three /two, guess the ayes have it, and the County is $125.00 richer, and Mr.
Safarik is $125.00 poorer for his inadvertent lapse of judgment. Okay, any further business?
Any disgruntled public members out there (inaudible). Okay so...
AL: I would like to thank Ms. Kinimaka and Mr. Olesen
for being watchdogs. And I would like to thank Mr. Safarik for his action, and activity
RW: Yes, done in good faith and the public...
AL: ...and the public for coming.
RW: Yup, thanks for coming and to the press for accurately reporting. So the announcement is
the next regular scheduled meeting is scheduled for Wednesday September 13. We are back on
schedule....
WJ: Ah, I would like to amend that to September 12.
RW: September 12, we have a hassle with September 13? What is September 12? What day of
the week is that?
WJ: Tuesday.
KD: Tuesday.
RW: Everybody okay with Tuesday? Yes, yes, yes.
AL: Didn't you already check on this Karen?
KD: We did, but the thing was...
25
RW: Something came up.
WJ: We needed a formal motion, I believe.
RW: So September 12, Kendall are you okay with that? September 12?
WJ: Ah, Mr. Chairman I made a motion, I need a second.
RW: Okay so we have a motion on the floor to Tuesday, September 12, a second?
AL: Second.
RW: Discussion?
WJ: Kendall won't be here on September 12.
RW: All in favor?
AL: Aye.
WJ: Aye.
RW: Aye.
KI: Aye.
KS: Aye.
RW: Unanimous. Now, the formal announcement is that the next regular scheduled meeting is
Tuesday, September 12, 2006 which is when we will further address this issue at that time.
Meeting is adjourned.
Meeting adjourned at 11:20 a.m.
Respectfully submitted:
Karen Delimont
Secretary
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