Loading...
HomeMy WebLinkAbout2007-11-14 Board of Ethics Minutes Regular SessionHAWAII COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, November 14, 2007 – 10:00 a.m. Ben Franklin Building – Council Chambers 333 Kilauea Avenue, 2"a Floor Hilo, Hawaii 96720 Present: Wayne Joseph, Chair Ann Lum, Vice Chair John Dill, Member Tricia Malanka, Member Marilyn Nicholson, Member Lincoln S. T. Ashida, Corporation Counsel (counsel for the Board) Molly Lugo, Deputy Corporation Counsel Mary E. Crosson (secretary for the Board) Others Present: Councilmember Brenda Ford (via videoconference from Kona), Levi Hookano, Kenneth Goodenow (part of the time), Valerie Victorine (part of the time) 1. CALL TO ORDER The Chair called the meeting to order at 10:00 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Councilmember Ford made a statement: You're probably all aware that there was an article in the newspaper today, about specifically Mr. Yagong using his picture to encourage his constituents to come to public meetings, which I'm probably in favor of anything that would encourage public participation in government as being allowable, provided there's no campaign comments or anything going on. But my real concern is about what we can do in off - election years versus what we can do in election years. And it seems to me that if something is not considered campaigning in an off - election year, then it should not be considered campaigning in an election year. And vice versa —I guess if it's something that we're not allowed to do in a campaign year, then we shouldn't be allowed to do it at any time, as incumbents. I think that campaign laws should be fair and consistent at all times and should apply equally to everyone, and it's always a disadvantage in being cautious in what we do as incumbents, because certainly a non - incumbent has the right to pay for ads, just like we do, but they have the right to pay for ads and say anything they want. The concern I have is where we draw the line in council people - -in providing information to our constituents. In an effort to have not even the appearance of impropriety, I restricted myself and my staff to providing information from the council office via email, to only basic information about agendas and issues that are on the agendas. When we're doing a broadcast message, I don't put my personal comments about the items that are coming up on the agendas in there. I don't even place information about who voted for what issue in what way into my broadcast messages, because I'm afraid it could be construed inappropriately. And this is really handicapping me. This is a self - imposed rule that I applied to myself and my staff, but it's certainly handicapping me in my ability to let my constituents know what's going on or what my position is in certain issues, and I think that's very unfortunate. And I would like to see the Board of Ethics address that issue as to what can we put in a general broadcast message from the council office all the time, not in just an election year, because if we could do it during a non - election year, it seems to me that we should be doing it all the time. It should be part of our job to provide this type of information to our constituents. I think you should address the issues of stating our position on any particular issue that is an issue that would normally come before the Council. I think we should be able to state who voted what way (inaudible). On the bottom of resolutions, you've probably seen them, there are little blocks that say all of our names and did we vote yes or no or were we excused. I think we should be allowed to reflect letters of testimony or support from our constituents on particular issues, because those issues don't just impact councilpersons, they impact the constituents, whether they're for or against. I think they should be, you know, encouraged to participate in our governmental process. I think news letters from the Council members saying this is what's going on just like I get a periodically I get a monthly report at a town meeting that we have here in Kona, and Mr. Pilago does, too. This month —I called it last night for the first time —this month in council, and I said these are the top issues that came in front of the Council in the last four weeks, and this is the result. And I didn't say who voted yes or no in most of them, but I said this is the result. I think we should also be able to advise when there's a non - County type meeting that the public might want to attend, for instance, if there's a meeting that is being put on at (inaudible) and, it has to do with an environmental issue, we should be able to publicize that on our general broadcast network. All of this provided that we're not putting campaign information into that broadcast. There's another issue I would like you to address, and that is —I get letters from constituents asking me for my opinion on something that may not come in front of the Council. And when I get a request for a personal opinion, I try to respond and say this is my personal opinion on that issue. However, I also provide education. If it's something that does not belong in front of the Council, I explain that it doesn't belong there, and I explain why. I try to give my constituents enough information that they'll understand why I'm saying I'm for or against - -or whatever my opinion is. I think we should be allowed to do that in private emails that come to the Council members, whether or not the issue is an issue that comes in front of the Council. At the same time, we should be able to tell our opinions over the internet. When somebody says what's your opinion on solid waste disposal incinerators —an example —I should be able to say my opinion is such and such. I do realize when you have the internet that our emails can be forwarded to many other places, and —I don't know if that's good or bad, I guess —but I think it's important that we have contact with our constituents. We can't be everywhere at once. So I would like all of these issues to be addressed by the Board of Ethics, because I think it's just as important as is election year campaigning issues, and some of it could be construed as campaigning. And I need 2 to have clarification for myself, and I hope the other Council members would like to have clarification on these issues. If you have any questions, I'd be glad to answer them at anytime, and I'll be here for the duration of your meeting. Thank you. CHAIR: Thank you. Any questions from the Board? DILL: Councilmember Ford, I just want to thank you for expressing your opinions and what we —what you feel we should be addressing. And I think I speak on behalf of the Board when I say that we want to prioritize this issue, and it has been brought up in the past, and any information or opinions that you or other Council members can provide to us would be helpful in making a proper decision. CHAIR: Okay, with that said, any other statements from the public at this time? If not, let's move to the approval of the minutes. 3. APPROVAL OF MINUTES Minutes of the October 10, 2007, Regular Session. Motion and vote: Mr. Dill moved to accept and file the October 10, 2007, Regular Session minutes, and Ms. Malanka seconded the motion. All members voted aye except for Ms. Lum, who abstained because she did not receive her packet of agenda items in the mail. Minutes of the October 10, 2007, Executive Session. Motion and vote: Ms. Nicholson moved to accept and file the October 10, 2007, Executive Session minutes, and Ms. Malanka seconded the motion. All members voted aye except for Ms. Lum, who abstained. 4. COMMUNICATIONS a. Communication No. 2007 -111: The High Road publication by the State Ethics Commission, October 2007. Motion and vote: Ms. Lum moved to accept and file this communication, and Ms. Malanka seconded the motion. All members voted aye. b. Communication No. 2007 -113: Memorandum from Lincoln Ashida dated October 26, 2007 (Reminder on Campaign Restrictions for All County Officers and Employees). Motion: Ms. Malanka voted to accept and file this communication, and Ms. Nicholson seconded the motion. Discussion: The Chair asked whether this reminder was provided on an annual basis, and Mr. Ashida said he issues it in election years or previous to an election year, when concerns arise about campaign laws. He explained that this reminder was a little different from the 2006 one, because he attached a new flier from the State Ethics Commission and emphasized specific items. He said he updates the reminder every election season, and though he normally waits until the campaign season, the Mayor wanted it issued sooner. Ms. Malanka asked whether a BOE member would need to disclose having made a campaign donation to a County candidate. Mr. Ashida said that although the donation would be listed on the candidate's spending report, the BOE member would still be responsible for making the disclosure and asking for recusal from voting on any matter directly related to that candidate. He cited the example of a recent BOE member who did not disclose that she had made contributions to a Council member who came before the Board for a petition filed against that Council member. Mr. Ashida said his advice is: when in doubt, make the disclosure or check with. him. Vote: All members voted aye to accept and file the communication. c. Informal Advisory Opinion for Petition No. 2007 -07, In the Matter of the Investigation of Rene Siracusa. Motion and vote: Ms. Malanka moved to accept and file the opinion, and Ms. Lum seconded the motion. All members voted aye. d. Informal Advisory Opinion for Petition No. 2007 -08, In the Matter of the Petition filed by Ron Whitmore. Motion and vote: Ms. Nicholson moved to accept and file the opinion, and Ms. Lum seconded the motion. All members voted aye. 5. NEW BUSINESS There was no new business. 6. UNFINISHED BUSINESS The Chair directed the agenda to item 6b, as he had invited Levi Hookano, who was present, to speak on this item. Mr. Hookano ended up speaking on both agenda items 6b and 6c. b. Report on status of Board's request for a time limit for incumbents who are seeking reelection in an election year on sending campaign literature using County funds. c. Report on status of Board's request for authority from the Council to fine officials and employees who violate the Code of Ethics. Mr. Hookano explained that he is a legal specialist with the County Clerk's Office, where he performs legal research for the Council in a more informal capacity than Mr. Ashida. He had recently been requested to research two issues: whether the County Board of Ethics could El impose administrative fines, and whether Council members could be restricted from sending campaign literature in the six -month time period prior to an election. Regarding administrative fines, Mr. Hookano said it appeared fines could be imposed through an ordinance. However, he was still researching the issue and did not have a final opinion yet. His opinions would go to Chair Hoffmann, who could forward them to the Board for review. Regarding campaign mail -outs, Mr. Hookano said he also needed to do more research on this, to make sure there would be no conflicts with the State's campaign spending laws. Mr. Hookano said he expected to finalize both opinions in December. The Chair informed the members that he had handed out two draft ordinances on these matters to them at the start of the meeting, for their review. Mr. Ashida said a potential problem just occurred to him on the administrative fine issue, if the Council should pass it: If the Board of Ethics should determine that a County officer violated the Code, and so imposed a fine, he could foresee a situation in which that officer might turn around and file a claim with his office, stating that the officer was a volunteer board member, did not receive pay, was acting in the scope of his authority, and therefore the County should pick up the tab. He suggested that Mr. Hookano discuss with Chair Hoffmann a provision that County officers and employees cannot seek reimbursement from the County. Mr. Ashida said an unintended consequence of the fine could be that people would be 'less willing to serve on a board or commission, if they knew they could be fined by the Board of Ethics and would be on their own to pay it. Mr. Dill asked Mr. Ashida whether it seemed likely the Council would pass the bill, and Mr. Ashida said that Chair Hoffmann seemed in favor of it, and there was precedent because the State Ethics Commission was able to do so. The Chair and Ms. Nicholson stated they wanted to know whether the State Ethics Commission had administered a fine on anyone yet, so they could take it into consideration before moving forward. Mr. Ashida said he would find out. Ms. Malanka asked Mr. Ashida whether the potential fine would keep people from applying for County jobs, and Mr. Ashida said he did not see it as such a risk that it would be a disincentive to apply for County jobs. He said he was more concerned about fining volunteers and asked the Board members whether it would be a disincentive to them. The Chair said it would not be for him. Mr. Hookano said a mechanism would need to be in place to notice a hearing and have the opportunity to be heard and to cross - examine, and Mr. Dill said an appeal process would need to be in place as well. Mr. Ashida said he agreed there would need to be due process. The Chair said that although the Board could find someone in violation of the Ethics Code, it did not necessarily mean a fine would be imposed. He asked Mr. Ashida how many times the Board had found someone in violation of the Code, and Mr. Ashida said he has not been with the Board for long but could find out. He would guess about a half dozen. The Chair said there were only two in the nearly four years that he has served. Mr. Dill asked how many separate hearings or petitions were filed, and Mr. Ashida said significantly more, but either no violation was found or there was no jurisdiction. Ms. Malanka asked how the fines would be set and where the monies would go, and both Mr. Ashida and the Chair said monies would go to the General Fund. Mr. Ashida said the Council would set the fines and delineate the appeal process. Ms. Lum said that a fine could be imposed only after a formal opinion was issued and that the Board has not yet had to do a formal opinion. Mr. Ashida said that if the Board receives the ability to impose fines, it would be a disincentive for wayward people. It could motivate officers and employees to cooperate with investigations instead of blowing them off, and the Chair agreed it would give them some leverage. The Chair thanked Mr. Hookano. The Chair explained that both agenda items 6b and 6c were initially submitted by him in September 2006 and that he was grateful to see progress now, 14 months later. Regarding campaign mail -outs, he saw them as an unfair advantage for incumbents. He asked the Board to look at Section 2 -83(b) of the Ethics Code, which covers advantages, and specifically at 2- 83(b)(3), where it says "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 . . He said the Code already covers advantages in the language, and it is a matter for the Board to properly interpret the language. He said he would like an opinion from Mr. Ashida based on this, to see whether they could do an informal investigation and come up with a ruling. Mr. Ashida said he understood that the request was to determine whether elected incumbents in the County, which are limited to Council members, the Prosecuting Attorney, and the Mayor, are able to utilize County funds for mail -outs and whether doing so would constitute an advantage as defined by Section 2 -83 of the Code. He asked whether there was a time limit on the mail -outs, and the Chair said he had asked for within six months of an election, because it is clear that is when the advantage happens for incumbents. He said he understood what Ms. Ford said, that if they cannot do mail -outs within those six months they should not be able to do so period, but he did not necessarily agree. The Chair said that if it was interpreted from the language that campaign mail -outs would constitute an advantage, he hoped the Board would issue an informal advisory opinion to make incumbents aware that the Board would consider it a violation of the Ethics Code if County funds were used for these mail -outs during an election year. He asked for a motion to put the matter of the Board coming up with an informal advisory opinion on the December agenda under New Business. Ms. Lum said she did not want to just cut off Council members from using County funds to send communications to constituents during those six months of an election year, and that they need to seek a balance. The Chair said they have a difference in the interpretation of the language, as Ms. Lum used the word "communications." He said communications through the mail and over the phone are fine, but when County tax dollars are used to promote what an incumbent has done during the year, it becomes campaign literature and is an advantage during an election year. He said sending information to constituents is different from sending a list of accomplishments. Ms. Malanka said she saw it differently —she saw it as Council members letting people know- their thought processes and views on issues, and what directions they were planning to take. She felt it made constituents educated on how to vote. Mr. Dill said the incumbent has an advantage over someone who doesn't have the resources. The Chair said the whole issue is about using taxpayer dollars, and incumbents are free to do what they want with their own money. Ms. Malanka asked whether there is a way to allow County funds for non - incumbents who are seeking election. Ms. Lum said there is a fine line between incumbents reporting their accomplishments and reporting on the issues affecting and being worked on in their districts, and Mr. Dill agreed. He said he would not want to hamper communication between elected officials and their constituents. The Chair said he always believed communication works two ways, and when someone sends out color fliers telling of their accomplishments, they're really not communicating. Mr. Ashida said that the Board could, on its own initiative, enter an informal advisory opinion pursuant to Rule 4.4 of its rules. He said they did not need a resolution. He could put together a draft based on what he heard today, or they could hash it out and decide where they wanted to go on the issue. He said he could work with the Board's secretary to agendize the matter clearly so as to make it abundantly clear that the Board is considering not only discussing the matter but also entering an informal advisory opinion on it. He could contact each Council member, the Prosecutor, and the Mayor to let them know it will be agendized for the next meeting. He said it could be carried over as Unfinished Business. The Chair said he wants it under New Business on the next agenda, and he wants to make sure the Board has input from anyone who wants to make input, including members of the public. They will discuss the merits next month and will inform the public and those involved of the repercussions. Mr. Hookano asked whether they wanted him to postpone research on the campaign mail - outs while they discussed this as a Board. Mr. Ashida said he should check with the Council but that it would be wise to continue his research, as it looked like the matter would make it to the Council, which would want Mr. Hookano's views. 7 The Chair said it might be very difficult to make this type of proposal to the Council, as it would affect them the most. However, it becomes an ethical issue and he believes it can be resolved with the Board first. Ms. Nicholson said she would like to see as much research as possible so they can discuss this. The Chair said that if they were done with this item, he would move them back to item 6a on the agenda. a. Report on status of Ethics Guide for Hawai `i County Officers and Employees booklet (includes Communication Nos. 2007 -114 and 2007 -119, letter from Lincoln Ashida to Council Chair Pete Hoffmann and Human Resources Director Michael Ben dated 11/5/07, and Mr. Ben's response dated 11/6/07). The Chair said that he liked Mr. Ben's suggestion (about having each officer and employee sign off their receipt of the booklet), which was the route the Board had wanted to take to begin with. Mr. Dill asked Mr. Ashida whether he had responded to Mr. Ben, and Mr. Ashida said he wanted to hear from the Board first. He will report back to Mr. Ben that the Board is in agreement with his suggestion. He said he did not yet hear back from Chair Hoffmann about the copying of the booklet. Motion and vote: Mr. Dill moved to respond accordingly to Mr. Ben's suggestions about issuing the Ethics Guide and having officers and employees sign off their receipt). Ms. Malanka seconded the motion, and all members voted aye. d. Further review and discussion on the Rules of Practice and Procedure of the Board of Ethics, including further discussion on updating or developing a special code of conduct for Board of Ethics members. Ms. Lum passed around a handout she made entitled "Preliminary Review of Rules of Practice and Procedure of the Board of Ethics." She explained that she compared the rules of the State Ethics Commission with their own rules and that some followed the State's rules, while others did not. She felt the County's rules were much better written and far easier to understand than the State's rules. She did not feel we should amend our rules to be like the State's unless a need to do so arose. She suggested they review her handout later, and they could work on the rules again next month or in January. The Chair said he wanted the matter under Unfinished Business on next month's agenda. e. Ongoing discussion on the Sunshine Law. Mr. Ashida said he did not have anything to discuss on the Sunshine Law for this meeting, unless the Board had specific questions or concerns. N. The Chair asked whether the Board members should disclose if they made political contributions to current Council members, since the matter of using County funds to mail leaflets out would be on the next agenda. Mr. Ashida said that if a Council member comes before the Board to provide input or testimony, as Ms. Ford did today, and a Board member had made a financial contribution to that Council member's campaign, his advice to the Board member would be to disclose this so that there is no appearance of impropriety. Making a contribution would not disqualify that Board member from participating, as disqualification or recusal is at a secondary level. Disclosure is at the primary level. The disclosure should be made, and the circumstances can be explored. Mr. Dill said that as things stand currently, they are not required to preemptively disclose campaign donations unless an issue is brought up before them that is related to that Council member, and Mr. Ashida said yes. Mr. Ashida explained that if a Board member has made a campaign contribution to an official, there are two indicators to trigger making a disclosure. The disclosure should be made if (1) that official comes before the Board for official action because he is the subject or is involved in a petition, or (2) that official is offering testimony, in whatever format, on something before the Board. The disclosure is not a requirement in the latter scenario, but it would be his advice to disclose. In short, if a Board member contributed to the campaign of a Council member who is facing a petition, the Board member should disclose this. If a Board member contributed to the campaign of a Council member who is testifying before the Board about something, the Board member is not legally required to disclose contributing, but Mr. Ashida's advice would be to do SO. Ms. Ford said she had a question: FORD: If that is true that a commissioner gets— receives money from somebody who is coming to testify, and you're concerned whether or not they should disclose that information, it seems to me that would also be true if you have a County employee who comes forward to testify on a particular issue — should they have to disclose that they gave money to a particular councilman on that issue? CHAIR: Let me give that some thought. If a County employee is giving testimony that supports a particular councilmember's view, should they disclose? Then I would say yes. FORD: All right. But you could also have a County employee that may have given councilmember X a donation, and they do not support my particular technique that brings legislation forward —they don't support my legislation, they've given a donation to councilmemberX -- should they have to disclose that information? CHAIR: You're speaking about here before the Board of Ethics on a specific issue? I need to know the circumstances a little more before I can- FORD: I'm suggesting that if a County employee gives any council member a donation, a campaign donation, and then comes before the Council to speak for or against an issue, it seems that they should be disclosing their donation, because it might influence the vote. If the County employee says I support X, and you know, this particular thing, we should know that that County employee has donated to another council member. It could influence the vote. CHAIR: Given this particular circumstance, I see your point. But you're proposing something that's very generic, and I can't really be specific unless I know the specific issue that we're discussing and how we could relate- ASHIDA: Mr. Chairman— CHAIR: - -Yes- ASHIDA: If I may, two issues. Number one, this narrow question is not on your agenda, so it violates the Sunshine Law to discuss and opine on it. Number two, Ms. Ford —may I address Ms. Ford? CHAIR: Certainly. ASHIDA: Ms. Ford, if that is something that if - -I believe you wish to have the Board of Ethics consider, by all means you're welcome and we invite you to submit that question to the Board. It can be for an informal advisory opinion or other mechanism within the Board's rules to deliberate. And I think it might help the Board to have a specific fact pattern in writing so they can adequately review it and come to, if you wish, an informal advisory opinion. My earlier recommendation in response to the question was limited to the Board of Ethics. The question posed to me was what would I recommend to Board of Ethics members, and I believe I prefaced my comments by saying that this Board has demonstrated through its conduct a willingness and desire to take the higher road. Based on that, my—I'm not saying that it's a legal requirement that disclosure be made, but it would be my considered recommendation that disclosure be made. A recommendation to the Council may be very different, given different circumstances. Thank you, Mr. Chair. CHAIR: Thank you. FORD: Thank you. CHAIR: At this point, we're about to move into Executive Session, so Mrs. Ford, we appreciate your being here. Would you like to have a final word on anything? FORD: No, thank you, but I appreciate the opportunity to speak to the Board, and we will shutdown our system here. Thank you. CHAIR: Thank you very much. 10 Motion and vote: Ms. Lum moved to enter Executive Session, and Ms. Malanka seconded the motion. All members voted aye. Executive Session was entered at 11:00 a.m. The Board re- entered Regular Session at 11:12 a.m. The Chair stated that they reviewed the financial disclosures of Marilyn Nicholson, Rodney Watanabe, and Ron Whitmore. Motion and vote: Ms. Lum moved to accept and file the disclosures, and Mr. Dill seconded the motion. All members voted aye. 8. ANNOUNCEMENT The Chair asked if anyone wanted something added to the next agenda. Ms. Nicholson asked at what point of a meeting a Board member should make the disclosure of a possible conflict and whether there was a time period for having made a campaign contribution. The Chair said the disclosure would be made when the person is about to start testifying and that there should be no time frame on when the donation was. Mr. Ashida said there are no hard and fast rules on the issue. They need to consider the facts and circumstances of the situation. Disclosing is not a law, but a good practice. They are holding themselves to a higher standard. Ms. Nicholson said they should disclose if they feel there might be a bias, or if someone else could perceive there might be a bias, and Mr. Ashida said that was correct. The media can get a hold of things and portray them negatively, so it is best to just make the disclosure. The Chair announced that the next meeting was scheduled for December 12, 2007, at 10:00 a.m. at the Department of Liquor Control conference room at 101 Aupuni Street, Suite 230, Hilo. 9. ADJOURNMENT Motion and vote: Ms. Lum moved to adjourn, Mr. Dill seconded the motion, and all members voted aye. The meeting adjourned at 11:18 a.m. Respectfully submitted: Mary E. rosson, Secretary 11