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HomeMy WebLinkAbout2008-02-13 Board of Ethics Minutes Regular SessionHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Wednesday, February 13, 2008 - 10:08 a.m. 333 Kilauea Avenue, 2nd Floor (Council Chambers) Hilo, Hawaii 96720 Present: Wayne Joseph, Chair Ann Lum, Vice Chair (arrived late) John Dill, Member (left at 12:58 p.m.) Tricia Malanka, Member (left at 12:40 p.m.) Marilyn Nicholson, Member Lincoln S. T. Ashida, Corporation Counsel (left at 12:58 p.m.) Mary E. Crosson (secretary for the Board) Also present at various times: Dominic Yagong, Steven Offenbaker, Kenneth Goodenow, Valerie Victorine, Cathy Hall, Jason Armstrong, Don Banks, and other unknown parties. 1. CALL TO ORDER The Chair called the meeting to order at 10:08 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS No one testified from the public. 3. APPROVAL OF MINUTES The Chair asked the members if they had an opportunity to review the minutes, as well as his suggested change to page 11, which was passed out that morning. Motion and vote: Ms. Nicholson moved to accept and file the Regular Session minutes of January 9, 2008, with the amended section on page 11. Mr. Dill seconded the motion. There was no further discussion, and all members voted aye. Motion and vote: Ms. Malanka moved to accept and file the Executive Session minutes of January 9, 2008. Mr. Dill seconded the motion, and all members voted aye. 4. COMMUNICATIONS a. Communication No. 2008 -11: The Board's Informal Advisory Concerning Use of County Funds for Mail -Outs Within Six Months of an Election for Public Office. Motion and vote: Ms. Malanka moved to accept and file the above communication. Ms. Nicholson seconded the motion, and all members voted aye. b. Communication No. 2008 -9: January 24, 2008, email from Charles Totto, ethics director and legal counsel for the Honolulu Ethics Commission, regarding 2008 legislative bills affecting county ethics agencies, including House Bill 660, Senate Bill 2612, and Senate Bill 2937. Motion: Mr. Dill moved to accept and file the communication, and Ms. Nicholson seconded the motion. All members voted aye. Discussion: Mr. Dill said that the transmittal, along with others from Mr. Totto, references a couple of House bills that were in place last year and that there was also a companion bill covering issues relevant to the Board. He said it may be appropriate to offer an opinion and endorsement of two of the bills. The Chair agreed that the Board should write a letter of support for the two bills being introduced. He recommended they endorse House Bill 660 and Senate Bill 2937 and not comment on Senate Bill 2612, and Mr. Dill agreed. Vote: All members voted to accept and file the communication. Motion: Mr. Dill moved to have the Board formulate a letter of endorsement for House Bill 660 and Senate Bill 2937 and the House companion bill, and not comment on Senate Bill 2612. Ms. Nicholson seconded the motion. Discussion: Mr. Dill asked who they should send the letter to, in addition to Mr. Totto. Mr. Ashida said they needed to identify what committee would be hearing the bills and send it to the chair of that committee. Mr. Ashida said that the Council and the Mayor should be informed, and that it would be wise to keep the County's legislative liaisons apprised so that what is submitted would not be in conflict with something our County has recommended. Mr. Dill pointed out that bills are very time sensitive and that their letter needs to be done as soon as possible. Mr. Ashida said it could be drafted with copies submitted to the Mayor and Council with a note that it would be sent off if they have no problems with it. The Chair asked Mr. Ashida if he would generate the letter, and Mr. Ashida said yes. The Chair said he would be in favor of forwarding the letter to Mr. Totto and as a courtesy copying the Mayor and Council to see if they have an issue with it, without waiting for their feedback. Mr. Ashida said he would draft the letter and hand -carry it to both the Mayor and Council and then send it out. He asked if that would be okay, and the members agreed. K Ms. Nicholson asked about key committee people who should receive the letter, and Mr. Ashida said he'd find out. Mr. Dill said it should go to any committee that is hearing or has heard the bills, and also to our County representatives. Vote: The Chair called for a vote on Mr. Dill's motion, and all members voted aye. c. Communication Nos. 2008 -14 and 2008 -18: January 30, 2008, email from Charles Totto, ethics director and legal counsel for the Honolulu Ethics Commission, regarding Senate Bill 2937, which is about ethics procedures for civil fines, and his February 4, 2008, testimony before the Senate Committee on Intergovernmental and Military Affairs on the matter. The Chair said it did not appear that these communications required a response from the I: G, s Motion and vote: Mr. Dill moved to accept and file the communications, Ms. Nicholson seconded the motion, and all members voted aye. 5. NEW BUSINESS' Investigation /inquiry pursuant to a resolution by the Board into whether or not it is a violation of the Code of Ethics (by constituting an unfair advantage) for incumbent elected County officials to use County funds to pay for newspaper advertisements in which their photograph is included, and prospective issuance of an advisory opinion. CHAIR: I've asked Mr. Yagong to come in today. Would you please, Mr. Yagong? I'd like to thank you for taking the time to come in and address the Board on this issue. YAGONG: So that's what it looks like from this side. Maybe if I comb my hair a little bit better when I come up to Council. Well thank you very much, commissioner. Commissioners, thank you very much. Chairperson Joseph, I appreciate the opportunity. Yes, I think it was a little over a week ago I had an opportunity to talk to Mr. Joseph right outside in the hallway here, and asked him what format he wanted me to follow for today's hearing, whether he wanted me just to be here to answer questions or whether he wanted me to give a presentation on my thoughts regarding this. So he said give a presentation, so if you don't mind, 1'd like to do that. And I really appreciate the opportunity to do so. Obviously, because this is a use ofpublic monies, and what you're here to decide is whether or not utilizing or advertising public funds, using a Council member's picture— whether this is considered a personal, political, or whether it's campaign - related. So it's a very appropriate thing that you are taking up at this time, so I appreciate your doing it. Probably Mr. Ashida and Casey Jarman will also let you know that back when —we talked about this back in April, actually, when the issue first came about for discussion, and I thought --I told them at that time that 1 thought it would ' Agenda item 5 is transcribed verbatim. Blanks indicate words that were inaudible or indecipherable to the secretary. be a very good idea that it does come before the ethics commission. I know they'll confirm that, because this is something that no one's ever done, you know, so —so I'm very happy that you're doing this. So as we talk about the public fund and public monies, I need to kind of explain something a little bit to make sure that we understand. You know, there is definitely checks and balances when it comes to spending public funds. Of course there's the Mayor, and he , and of course the Council then appropriates —and of course there's the community that scrutinizes what we do, and of course you, being the ethics commission. But I just wanted to make sure everyone understands that —I know when it was kind of written in the paper it says you know, using public funds for the purpose of these advertisements. It almost sounds like we were just taking money from some place and utilizing it for this purpose. But that why I think we need to understand the budget process. You know, basically the Mayor comes up with his budget, and he sends it down to the Council. The Council scrutinizes the budget. We make suggestions, we make recommendations, and we send it back to the Mayor. The Mayor looks at our recommendations and suggestions, and then he decides whether or not he wants to incorporate those things or whether he says —ah, the Council, you're full of whatever it is. And he makes a decision. He sends it back down to the Council, and the Council finally takes a last look at the budget. Now all of this takes place in the public purview. We go to public hearing, and people get a chance to look at the budget and determine whether or not the operating budget of the County of Hawai `i —their taxpayers' money —is being spent properly. So it's not —not in open forum —but even more importantly, the point I want to make is, it is done by line item. In other words, we are specific as to how much money we're going to use for a particular purpose. And it is —the book is about that thick —that goes line by line as to how you can spend that money. In other words, you cannot utilize you cannot utilize the money budgeted for sales and for the Police Department to buy computers for a non-profit grant somewhere, or you cannot utilize fuel tax revenues to purchase parks and recreational equipment. It has to be for a specific purpose. I just want to make sure that the commissioners do know about the DAE Account. That's the District Allowance Expense Account. This is part of the budget that's sent out to the Mayor, and of course approved by the Council, and it's , and basically it is a budget that allows the Council members to utilize for expenses incurred doing their business in their districts. Now, every expense account has a purpose, and I want to read to you folks the policy statement that deals with the District —the DAE Account. And I think it's really important, because it's going to really figure into your consideration on this particular issue. I'd like to read that here. District Allowance Expense, the DAE, is to cover expenses in carrying out his or her duties as an elected office official. Incidental duties and activities include expenditures incurred in connection with carrying out the official duties or activities, enhancing accessibility to and communicating with the community and constituents, and carrying out the public expectation of a councilmember's role and responsibility to the community and constituents. This is a policy for spending this DAE Account, okay. And the thing that I really wanted to point out to the commissioners for your consideration is two things in this policy, and that is that the funds should be utilized for enhancing accessibility to and communication with the community and constituents. And before I lose my train of thought —so with the —the thing that I want to put out to you is that you and I and maybe even between Council members —we might have different definitions as to what accessibility is. Some person might say well, you know, 1 am available every Friday. If you want to meet with me, with your 4 representative, make an appointment, then I'll be there Friday and we can talk. And that's accessibility, or putting your phone number in the Tribune - Herald and saying call me if you have any concerns. My definition of accessibility, or the way that 1 operate my office —I truly believe that accessibility means understanding that everybody works, understanding that everybody has a life, every body's raising children you go to a soccer game, you go to PTSA you know, a lot of things. And one thing that's important tome in terms of accessibility is going out to that community and saying here I am. What are the concerns of my constituents? What is it that is your goal, or what is it that is your concerns and problems? And maybe we can help to facilitate solutions. Now this is all tied in, because we ran ads with my pictures for these things, okay. Now the thing is, with these meetings that we've had, we've had these talk story meetings that we call in Waimea, in Honoka `a, in Pa `auilo, in `O `okala, in Papa `aloa, in Laupahoehoe, in Pepe `ekeo, in Papa `ikou, in Ntnole, in Pauka `a, in Wainaku, in Pu `ueo. And many of those more than once. That's what I consider accessibility through this DAE Account. The second thing I want to point out to you is communication with the community and constituents. Communication, in my estimation —what that means is letting the people know when there are important events that affects your lives. Important events that affect our community as a whole. And one of the things I don't do, is I don't sit in the chair that you're sitting right now and try to make that decision for my constituents. It'simportant to me that I let them know what's going on and allow them for feedback. Now the ads that we ran with my picture includes some of these things —so just to let you folks know. It included an ad that ran — excuse me —where the County was going to auction off 700 acres of land in my community to the highest bidder. It was about the affordable housing project in Pepe `ekeo. It was about over a $10 million sewer project in the middle of Honoka `a town that's going to basically shut down the main street of Honoka'a and affect a lot of businesses and traffic. It's about the County feral pig program, where we did trapping out in the community. It's about a nearly $4 million project in Kalopa, the Sand Gulch Road Project, that basically will totally detour the traffic for several months and also affect the safety of our school buses that travel up in the Kalopa area. It was about a Papa `aloa road project where for years and years, because of the road -in -limbo issue, we did not do the roads. We wanted to get the community feedback, whether they wanted the road paved or not. It's about the Pa `auilo land sale. It's about the Council saying we are not going to auction off the land, we'd like to hear what your thoughts are as far as what we should do with the land. It's about a Haina Mill project that's going to come into the Honoka `a area. It's about crime that we've had up in Akaka Falls. We had so many break -ins, we wanted to bring the community together, say hey, how can we as a community help to solve this particular issue. It's about a resort, a proposed resort —big stuff here —that it be proposed for Hakalau, in my district. We had over 200 people show up to that meeting. It's about Mud Lane —it's about a lot of different things. But I guess the point that I want to make is not only in the talk story ads with my picture, and the announcement ads that we made for the subjects that I told you about —every single one that had to do with the absolute spirit of what the DAE fund is set up to do, which is to provide accessibility, which is to make sure that I am communicating with my constituents and my community. 1 wanted to make that portion clear. Mr. Dill? DILL: Yes, thank you, Mr. Yagong. I just —sorry to interrupt. Thanks for clarifying your intentions there. 1 just wanted to get a repeat of that policy, DAE policy number that you referenced. YAGONG: The DAE -1 can have some copies made, my staff can — staff, would you help me? Thank you. Now with that said, certainly the thing that your concern is whether or not it's appropriate for a Council member to utilize his picture. So I kind of want to share my thoughts with you on that, but also reiterate that again, every single dime that we spend is for a public purpose or a governmental purpose. I think it's important for everyone for the commission to understand how this came about, you know, as far as we utilizing the picture for an ad. Commissioners, for myself, I was elected to be on the Council from 1996 to 2002, so I was on the Council for six years. Then I was off the Council for four. I decided to come back, and I was able to win back the seat that 1 had previously. The beautiful thing about that is that I didn't have to go through a learning curve. The experience that I had for the six years was actually invaluable. And the fact is, the administration that was in when 1 was on the Council was still in. So it's not like I had to go through a whole reacquaintance process. So —in other words, in January and February, for my office, we hit the ground running. We didn't have to learn anything. We knew what the issues were, and we hit the ground running. And obviously, if you pull out the paper for the Tribune - Herald and West Hawai `i Today, you will find you just go back and look, you'll see there's something happening with our district, with me as a Councilmember. There's something going on. We're either on the front page, or the back section of the front page, because we were informing people of these meetings and letting them know what was going on. We did that through publicity releases. In other words, we ran a release of the meeting that we had, we sent it in to both newspapers, and they would print it. Now they would either do that, or they would look at the ad and send out the release and say, this is of importance. And they would actually call me and they would actually write an article. So we were getting like both ends of the spectrum. We got the article written and we got the publicity release. It was fantastic. And our meetings were well attended, until one day they didn't run the publicity release. It was a very important meeting that we had, and the release wasn't run. It didn't run in the paper, in both papers. We did have the radio announcement. We did have the blurb in Carol Yurth's article, Hamakua Times, but the main paper for this island did not run that meeting. Obviously the first person I blamed was my staff. Nah, just kidding. So I told Steve, I said Steve — Steve, it didn't run. We've got to get the word on what happened. So he emailed the Tribune - Herald and actually spoke to Mr. Armstrong, you know, as far as the ad not running. So Mr. Armstrong did reply to the ad, and he replied in an email. And his reply to Steve was this —this was on February 12. He said, Steven, the best way, and I'm not being facetious, to ensure something is printed in the Hawai `i Tribune Herald is to buy an advertisement. And you know what? Mr. Armstrong was absolutely right. What we were doing —we were lucky the first few, you know, the first few months. We were lucky. But basically what we did was, we took an important issue and we rolled the dice and said I hope they cover it. And we were lucky. But they didn't cover this one. So what we came to realize was that what we do is too important not to provide notice. What we do needs to be read, needs to be told to people. If we don't do it, no one knows that we're not doing our job. So with that email that Jason sent, what we did was —we said we've got to start running ads. And that's when we began to do it. Now when we first started running our ads, we ran text ads, which means it's the words you know, where, when, why, and call Dominic if you have any questions and so forth. And we ran a couple of ads, and it did not have an impact. It was very poorly attended. There was no publicity release, no— obviously people didn't read the ad. In fact, one of the 6 meetings —it was funny. When we asked the people how did you hear about the ad, I mean about the meeting —oh, Mr. Cardoza told us, you know, and so they didn't even see the ad that we ran. And by the way, there was only five people at that meeting. The only reason Mr. Cardoza was there was I called him and 1 said hey, don't forget to come to the meeting. But the point I want to make is that it was very poorly attended. So what I did was I told Steven —I said, you know, we're spending public money. And I don't want to spend money just to spend money, to say I advertised. If you don't get the impact of it, then you're doing it for nothing. It's money down the drain. So I said, Steve, we need to find a way to spruce up the ad, you know. See what you can do. So what Steve did is —he did what he always does —he goes, he does a good job. The first thing he did was, he contacted the Tribune - Herald advertising department, and he said, what can we do to make sure that Mr. Yagong's ads are read? Do your magic, help us out. Here's the text of the next meeting, okay, and do your magic. In fact, those were the exact words that Steve utilized to the expert in the advertising — Kelly —in the advertising department. I remember exactly where I was. It was ten to twelve. I was in Malama Market in Pahoa, when Steve called me and says, I got the ad proof. The deadline is at twelve. Ten minutes before twelve, and he said I got the ad from Tribune —I need you to read it. I says fine, fax it over to me. The ad comes out on the fax. I pick it up, there's my picture on the ad. I call Steve up and 1 said Steve, what is this? It's my picture on this, did you do this? He says no, the Tribune - Herald did it. And I said, but there's my picture on the ad. And Steve said something to me that I will never forget. He says, Dom, if you want people to read your ad, if they see your picture, they'll read your ad. I'll never forget that. So there I was before the looming deadline of twelve o'clock, and I say it. Run it. Go and run it. We had 200 people show up at that meeting. I'm not saying it's because of my picture. What I'm saying is it's because people read the ad. I'm in business. We spend millions of dollars in advertising. The purpose of advertising is to get a response. That's why you do it. And what we found on this, whether it's by luck or by whatever you call it, or by hard luck —it worked. But I still wasn't comfortable. So what we did is - -the next ads after that, we ran again text ads. Very poor showing. Then I said, I know it's the image that people see that make them stop and read the ad. So we ran a picture of Akaka Falls, you know, Hamakua, Akaka Falls. Very poor showing. We went back to the —we went back to the pictures. And I haven't regretted it since, in terms of having the turnout. So 1 just wanted to let you know this was the background of how all that transpired. It transpired by ending up where we took the people that are experts in the field. They created an ad, because that's what they do, and the only way the Tribune - Herald does business is through advertising. That's how they stay afloat. So they know what to do, and certainly they created that —and that's how that worked out. I want to close with —and open up for questions —by saying just a couple more things. I want to say that people are very, very image- driven. You know, if you take a look —if you take a look at the West Hawai `i Today paper, I just happened to open up just the front page section. I went through that whole section, and I'm having my staff kind of cut all those ads out for you. You will notice, nearly every single ad in the West Hawai `i Today front section —in today's paper —is all image- driven. It's Les Nakamura, insurance. It's realtors. It's people selling furniture. It's people selling hotels. I think he's doing it right now, but I'll pass it out later. But it's very - -it's very image- driven. And I'll pass it out so you can take a look at what I'm talking about. And so it's a way to get the impact, the result that you're asking for. Now I would close by saying that for me, one of the things I do as habit is —every Sunday I read Carol Yurth's article. Carol Yurth writes 7 about happenings in Hamakua, so 1 make sure I read her articles, simply because —in case I miss something, she would have it in her article. I also read Lowell Kalapa, the Tax Foundation guy, because he talks about taxation in government. Very strong opinions. The way I find their ads is 1 look through the paper, and look for their picture, and I find it. And then I read their ad. Mr. Joseph - -do you know what his nickname is? Do you all know what his nickname is? 1 know because I read his article. And I read his article in Tribune - Herald. And his article is there every Monday. I don't read it all the time, but 1 do know that your nickname is the Big Dog. But his article as well has his picture on it, you see, because I don't run —I'm not —I really need to be more health conscious, you know, and that's why I don't read it all the time. However, I guarantee you this, Mr. Joseph, you have a constituency out there. Your constituency are those people that do run, that enjoy running, they enjoy health, they enjoy being healthy people, and 1 guarantee every Monday they look for your ad, your column, and they read it. The same goes for me. I am elected by the people of Council District I to be the leader, to communicate, to provide accessibility. That's what I do. And whether —maybe it's because of my ugly picture, 1 don't know —but for whatever reason, by having that, the ads that we ran, it really did make a difference as far as people getting that information. If it didn't have a positive impact, I wouldn't have continued to do it. But I did it because it did have a positive impact. You will note that, if you do read the papers, we've had several ads come out that are text ads and it doesn't have our picture on it. What we did is, back in May —I think even Lincoln and Casey will tell you —we made a decision back then, way back then, to say that, you know, we're not naive. We realize that some people may look at this as being advantageous. And that's why we made a commitment back then that from January 1 S` we would not run any ads with our picture on it, you know. We had two meetings that we did that. It was poorly attended, just to let you folks know. But we did make that commitment. So I guess my recommendation to all of, you know, you folks —or at least my thoughts on it, personal, is my hope and dream regarding this article is that you as commissioners realize that what I did wasn't ethically wrong. It's a really bad stench that comes with that word, ethically wrong, ethically incorrect. And for me, it was kind of disheartening for me to read that, because many of my constituents said, you know, amazing, Dominic you mean to tell me that you're being penalized for doing your job, that it's ethically wrong to communicate? You know, so for me, and what I hope today, is that —that at least there is that acknowledgment. Because you know, like I told the newspaper reporter, that kind of bothered me, you know. Because you know, we're just trying to just trying to do our job. Well with that, 1 can open up to any questions that you may have. CHAIR: Good, thank you, Mr. Yagong. I have several. But first let me just clarify that we're not hereto find you in violation of anything. We're just looking at what probably should have been looked at many months ago, and that is should photos run with elected official —with elected official meeting announcements. And that's the issue from today forward. YAGONG: The reason I wanted to bring it up about the —as you said, because it was in the papers, you know, and I've never had the opportunity to express my thoughts of it since then, and that's why I really wanted to take advantage of this opportunity. It made me feel better, you know, to get it off my chest. 8 CHAIR: I see. YAGONG: But 1 understood why you're here today, Mr. Chair. 'Thank you. CHAIR: And let me go back to when you first did your presentation, and let me ask you some questions. First off, who is Steve, that you - YAGONG: - -I'm sorry, he's my council aide. That's Steve, that handed you the paper. CHAIR: So Steve was the one that was at the Tribune - Herald, that asked for the ad to be spruced up, that- YAGONG: - -Yes. CHAIR: Okay. That's Steve. Got it. YAGONG: With my direction. CHAIR: Got it. You know when this first came up, this entire issue first came up, and you thought, and maybe other people thought around you, that it might be problematic ethically —why didn't you, or why didn't anyone advise you, to petition the Board of Ethics to give an informal advisory opinion way back then? YAGONG: Well I think what happened was, I first got wind that there was some concern with it —with Mr. Ashida, I think you had it published in the last Ethics Board meeting, as far as his correspondence with me. He did talk to me regarding that, and what I did was I went to my County Clerk, Casey Jarman, and we spoke on that. And we did have different opinions in regards to Mr. Ashida's. So for me personally, you know, I think it was —it was being discussed with the property authority. I know Lincoln is the Corporation Counsel for the ethics commission, and at that point in time, if there was something that needed to be brought forward —you 're asking me why didn't 1 ask you that question? CHAIR: Yes. YAGONG: Well, first of all, at that point in time I didn't really agree with what Mr. Ashida had brought forward to me as an opinion, and my County Clerk did concur with that. So for me, I felt I was still on the right track as far as what I'm doing, you know, and what happened was —and that's a good question, Mr. Joseph. What happened was, when the inquiry came in from Mr. Ashida, what I also didn't understand at that point in time was there was this incredible you know, politics is pretty crazy sometimes —there was this incredible wave of people saying that, you know, that Yagong is doing all this stuff in the paper because he's going to run for mayor, you know, which was absurd. But that's politics. People are going to say that. And it was at that time, Mr. Joseph, that what I did was — because of this issue, because 1 wasn 't going to run for mayor, but because of this, I wanted to put an end to that rumor. That's why I called the West Hawai `i Today reporter and I told him exactly that I am not running for mayor. It was a front page headline news in the Tribune - Herald and West Hawai `i Today, and the reason 9 I did that was to calm the fears that that's why I'm doing all this. I'm doing my job and I'm getting criticized for it. But see what happened, Mr. Joseph, at that point in time, once I did that, once that appeared in the newspaper, front page headline, on the radio and everything, the complaints stopped. Ended. Immediately. You can confirm that with Mr. Ashida. It completely stopped. So I realized that the complaints was strictly political. And I was glad as heck that 1 made that announcement, because, God, it's hard enough doing the job, but then when you've got to swim uphill because people just, you know, try to undermine what we're trying to do in the public. So I'm glad 1 made that announcement, and that announcement is still true to today, you know , but Mr. Joseph, I did not further attempt to do it because the complaints stopped as soon as that ad came out in the paper. So hopefully that answers— CHAIR: - -A follow up question. Prior to having your photograph run with that meeting advertisement, prior to that, do you know of any incidents in which a— someone on the — or an elected official from the County of Hawai `i —ran a similar type ad? YAGONG: With or without the picture? CHAIR: With the picture. YAGONG: I knew —when I saw the picture come up with that proof that was sent to me by Steve through the fax, 1 reacted that way because I know that that's something that is in uncharted waters, so to speak. Because you know, I'm the only one that has done it before, so —no, 1 don't know of anyone that has done that. CHAIR: You know, and the reason I ask that is many elected officials have no intention of running for mayor, and they stay away from photographs with their announcements. So what advice did you get that this might be appropriate? YAGONG: As far as running the ads? CHAIR: With your photograph. YAGONG: With my photograph? I had no advice. I did that —I made the call on the fly. I really did, because it was, like I said — CHAIR: - -But I think you said that later you had a conversation with Casey Jarman, and through that conversation - YAGONG: - -Yeah, it was after the photos had gone out, yes. CHAIR: Right. And what legal basis do you know that Ms. Jarman cited? YAGONG: Well, it wasn't that she cited a legal precedent. But at the same time, what was presented, I think from Mr. Ashida as far as his legal opinion, it cited an incident where an elected official using —and let me clear —I'm a little off on the story —but it had to do with an elected official doing an ad, but it was based —the ad was based on giving an opinion on another council person or another elected official. 10 MALANKA: If I could interject, and her name escapes me, but the Council person that Brenda Ford replaced, she used to run ads with her photo. And that's how I first- NICHOLSON: -- Virginia? MALANKA: Virginia Isbell, thank you. CHAIR: Mr. Ashida, do you know if that- MALANKA: -- That's how 1 first noticed an ad— CHAIR: - -Well you know, there's a big difference and- YAGONG: That's campaigning, though, right? CHAIR: We have to call her on that. But it's perfectly all right to run your photo with a meeting advertisement if you're paying for it with your campaign spending money. MALANKA: Well, I have no idea how that transpired. But I'm just saying that her photo did appear. CHAIR: Do you know that for a fact? MALANKA: 1 do. CHAIR: MALANKA: Because that's how it caught my attention. CHAIR: But you don't know if she paid for it -- MALANKA: - -I do not -- CHAIR: -- with campaign spending money. YAGONG: As far as the legal precedent, Mr. Joseph, no, I did not have at that time any legal precedent that said that this is right, or that there was a precedent but I did determine from reading what I saw, and it was different situations that didn't quite match up to what we were doing, you know, but I don't exactly ASHIDA: Mr. Chairman, I just spoke with Mr. Armstrong from the Tribune - Herald. It's his recollection that those particular ads were paid for privately by Ms. Isbell through her funding source as— (INAUDIBLE FEMALE) 11 ASHIDA: - -Yes, so I think that that's his recollection, but what the contents of the ads were, he doesn't know. But 1 wanted to follow up on what Mr. Yagong said and perhaps just cut to the chase, Mr. Chairman, and answer your question regarding what transpired when Mr. Yagong talked to Ms. Jarman. The key thing that Casey was saying, because I remember she called me right after that, was that at present Dominic is not a candidate for anything. And that was sort of like the real turning point of this, that really convinced me at that point, okay, I cannot say conclusively that a violation has occurred or in fact this would have been a violation. And as Casey's opinion or thoughts —and she's a much smarter lawyer than I will ever be— turned out to be very clairvoyant, because that is exactly what the 2007 legislature or state said in terms of running the PSA ads, that you can use your picture. But it's at the point when you file your nomination papers that you are prohibited from running your photo. So that was what my recollection of what Casey told me way back when. And it's true what Mr. Yagong said, because he had indicated to me that it was his intention —I think I might be wrong, but 1 think he said January 1 S` he was going to stop using his picture any way, so— because that would coincide with about the time that he, perhaps the reelection for his Council seat. And it is true what he said about his picture and the flurry and talk that was going on about him running for mayor, because — understand that this was early in the year and it had just come off, election season had just finished, because the second special election or the general election had just happened in November of that year. So, you know, it was sort of like a continuation of that. So based on that, that was really the —if you're asking what did Jarman say —my recollection is, she's not here today, because she knew about it, she was planning to come, but she's ill today, she's at home sick —my recollection is that was significant. That was what she'd expressed to me. CHAIR: You mentioned, where you cited 2007, is that available to us? ASHIDA: 1 think 1 cited it in my most recent communication that was sent to you. CHAIR: Is it in the- LUM: - -It's in that long, that— CHAIR: - -or is it in the section listed under Executive Session? LUM: It's in this— DILL: I think it's Communication 2008 -17. LUM: 17, it's in there someplace. The 2007 legislature, right? DILL: I think it's on page 9. CHAIR: Communication 2008 -17 is privileged and confidential- LUM: -- Communication, attorney- client —oh, okay -- 12 CHAIR: - -and in Executive Session. Okay. So I —since it's in Executive Session, is this the appropriate time to be discussing that? ASHIDA: You can —I mean you can discuss the law, the law is a public record. LUM: And that law is on page 8. ASHIDA: You can go ahead and ask questions, and I'll let you know if there is any problems. CHAIR: More questions for Mr. Yagong, and we'll go back to that section that you cited. Thank you, Mr. Ashida. Mr. Yagong, if you don't mind- YAGONG: - -Sure. CHAIR: Approximately how many times did you run photo ads, and do you have copies of that ad for us? YAGONG: Yes, I have it in my booklet here you sure you want my picture? Nah, just kidding, I'll get it to you. Staff, can you get that for . But I do have a breakdown. One, two, three, four, five, six, seven, eight, nine, ten you want all of the ads? CHAIR: No, I'd just like to see a couple general- YAGONG: - -Oh, okay— CHAIR: - -And I'd like to know how many times- YAGONG: - -the total number of times. Twenty. CHAIR: Twenty. YAGONG: And Steve will get you some copies of that. CHAIR: Now, you said that that having your photo in the ads actually brought in a lot more people to your meetings? YAGONG: That's what it seemed to indicate, it was pretty obvious— CHAIR: There couldn't be any other factors, like meeting time, topic- YAGONG: All of our meetings that we hold —you know, topic of course is always something that, you know, when people are interested they'll come out. 1 mean, there's — you know, there's just a lot offactors that is included in that. But what we do understand is that although we do run the radio ads and the weekend blurb and so forth, there's no question that the Tribune - Herald and West Hawai `i commands a greater audience. So it does give you, you know, a bigger audience to pull from and —so there's no question 13 utilizing them does certainly help, as long as people read the ad, you know. So —but sure, there's no way I can stand here and guarantee one thousand percent that it was because of the picture ad. But you know, the numbers do seem to point that way. And the other thing, too, is, you know people, because they come to the meetings, and a lot of times people would have the cut -out of the ad, you know, and they actually would bring it to the meeting, you know, as far as the information that was presented. So it was obvious to me that people were definitely, definitely reading the ads. But the beautiful thing about doing this, honestly, is because I was out of office for four years, one of the things that we strived for was to put together a data base. So when we have these meetings, we try and have people give us their email and so forth. So in other words, as we continue to move on, it really makes it even easier for us to get information out, you know. For example, the smoking bill that we just —I think you were here during that time. We talked about that, and 1 just blasted out to our whole data base, what do you think about this, you know? People just responded back, and we had a tremendous response. So part of it is, you know, once people —once you get that credibility of having meetings that are productive, that make sense, that people have an opportunity to be heard, people will come. It's just growing and growing. It's an amazing thing that's happening. And for me, you know, I don't like to waste time. If we're going to have a meeting, I'd like it to be productive. So part of it is a lot of people are coming. CHAIR: And now with your positive reputation, maybe the photograph isn't necessary. It could be that, now that you've got your word out to your constituents about these meetings. YAGONG: Absolutely. I think the more you connect with your community, you know — obviously, for the campaign, for the election, it did center a lot on accessibility and communicating with the constituents. And I think that had a lot to do with my selection, quite frankly. Because it was 1 guess a very popular, very well liked person, if you all remember Dr. Holschuh. It's no easy feat to defeat an incumbent, and especially an incumbent that's a nice, very good guy. It's very difficult, but you know, it did have to center on issues. And one of the issues without a doubt was, you now, the effectiveness of going out to the community, being out in the community and being accessible. Without a doubt that was a big issue, because people knew that that's how I operate. DILL: Mr. Chairman? CHAIR: Yes? DILL: If I could just interject a comment here. I just want to reiterate publicly that this Board is convened today not to - -not to find any wrongdoing of Councilman Yagong's actions in the past, and I understand that this line of questioning that's being brought forth towards him is in an effort to clarify the issue in a general sense, and not to go or find wrongdoing of Mr. Yagong. This Board has discussed in the past about impressions, public interpretation for actions, and Councilman Yagong has also mentioned it in his testimony today that public impression right off the bat, when the word ethics violation is attached to your name in the newspaper, it does tarnish your reputation to a certain extent. And I just want to reiterate publicly we're here to study the issue in a general sense and not to find wrongdoing by Councilman Yagong. And I understand the line of 14 questioning needs to be clarified a little bit, and if we could just stick to that thought and that intention with our actions. Thank you. CHAIR: Absolutely. I have no intention of finding any wrongdoing -- DILL: -- Yeah —no, I know. It's just— CHAIR: - -based on Mr. Yagong. It's just that I think this topic should have been addressed many months ago. And —you know when 1 asked for a copy of this, I was actually asking to see a real sized copy of it that would have been placed in the newspaper- YAGONG: Oh, okay— CHAIR: - -And not something- YAGONG: The ad would be the size of probably a quarter of this page. CHAIR: A quarter of it. YAGONG: Yeah. Do you have an extra one? DILL: So the size of your picture, pretty much, right there. YAGONG: . You know, I need to clarify, that picture was not presented by my campaign staff, or by my people. It's something they had on file. Oh, okay. Mr. Armstrong has Ms. Nae `ole's ad, but that's the size —it's the same size. CHAIR: The same size. But in relation to your picture, I'm trying to visualize- LUM: - -a little bit bigger than that one, right? YAGONG: Give me a second. CHAIR: Sorry about that. YAGONG: No, no trouble. CHAIR: I'm just trying to get all the data and all the facts and trying to come to a reasonable conclusion. Does anyone have any questions- YAGONG: - -Oh, here we go, here we go— CHAIR: Oh, perfect. That's all I needed to see. That's all I needed to see, just the actual size of the ad in proportion to your photo. Any questions for Mr. Yagong? LUM: Mr. Yagong, did anybody comment to you about the picture at one of the meetings, for instance say oh, I saw your picture so I went, something like that? 15 YAGONG: Normally we'd ask as we talk story to people, oh, how did you hear about the meeting? 1 will tell you a large percent will say they had seen the ad in the paper. But the thing that was really engaging to me was that people from outside the district would compliment me on my— what's that word they use— DILL: Your looks? YAGONG: It's not my face, that's for sure —but they'd compliment me on being out in the community, you know, and working on issues. And I think some of these issues are not easy, you know, but we don't run away from issues . Mud Lane, for example, last night, as an example. There's certainly conflict as far as that issue, so we don't run away from that. But we get a lot of compliments from people saying that, you know, I'm glad that you folks are out there doing this. And that's an example of how- LUM: - -When you're trying to use it —like the sugar mill. Did you get as good a response on this one, compared to the population- YAGONG: Yeah, that one 1 would say would be difficult, because we had all the —the community association of the area contacted us and wanted this meeting, so we did have letters to all the members of the community association. So that one there, a lot of people showed up for that meeting. But I think we also had that data base of association members that allowed us to have such a great turnout. That ad that you read there was because, although its association for that Old Mill Road in Pepeekeo, which is below the highway- LUM: - -Yeah, yeah- YAGONG: But it is really a community -wide issue, because the upper guys use that for fishing access and so forth, so that's why we had to run an ad. Because we didn't want it to be exclusive, just for the folks that live on the road, and we picked the wheel, the gears wheel —hope people recognize it —but that was a form of trying to do it where not to run the photo. If we could we try to do it that way as well. But a lot of people did come to that meeting, absolutely. But we certainly had a beat on the community association that lived around the area. I think about 67 people showed up to that meeting. It was a great meeting. LUM: Thank you. YAGONG: Yeah. Very good meeting. LUM: So perhaps different kinds of images can be —could be used to the same, to some of the same effect- YAGONG: -- Absolutely- LUM: - -after political season starts to attract eyes to read the information. 16 YAGONG: Well that's one of the things that we tend to do, simply because we had a picture of the State highway sign that says Wainaku, So Steve went out there and took the picture of Wainaku that was in the ad, you know, so people that lives in Wainaku, they - Wainaku —and they'll read the ad. So we're certainly doing that, because we committed back in May that we weren't going to be running our pictures, you know, during the political year, you know. So it has nothing to do with an ethics inquiry or anything like that. It's just something we volunteered, so that's what we're going to do. Now, if you're going to ask me are we going to continue to run the picture? If we continue to get the success through ads like that, probably not, you know. But 1 guess what I would like to say is, try not to come to a conclusion that it's a wrong thing to do just because it's never been done before. It doesn't make it wrong because it's never been done before. And in fact, you know, the option of putting up the pictures for the Council members I think is a good one, because in the end, I tell you what's going to happen. In the end, it is the people of that district that is going to determine whether or not doing this is a waste of money, whether doing this is self - serving. And they have a way of doing that, even if they vote you out. You know, so I don't take this lightly, you know. I make sure that these are —that all the issues are things that are important to the community. And for me, I have had nothing but, you know, thanks from my community. LUM: Thank you. CHAIR: Any further questions? I appreciate your coming in and clarifying this. DILL: Yeah, thank you LUM: Thank you. YAGONG: No, thank you very much. LUM: I apologize for being late. Flat tire. YAGONG: If you may have any —I'll be around here —any further questions. Thank you very much. CHAIR: Actually, he clarified it all, Mr. Ashida did. I wanted you here just to clarify GOODENOW: 1 have two quick things. CHAIR: Oh, thank you please. GOODENOW: Just in light of what Mr. Yagong said You know, he quoted the administrative manual for our district allowance policy. This manual is approved by the Council members, and in addition to the requirement that it meet those purposes, we do require them to post on the internet every month a breakdown of their district allowance expenditures. So as Mr. Yagong said, you know, from the Clerk's Office, when we looked at this issue, we thought really, since it wasn't clear, it's really the voters that would make the ultimate decision. It is posted publicly, the amounts spent for the ads. And the 17 only other thing I'd say is you know, 1'd like to thank Mr. Joseph for coming to our Council meeting on the 241h and the 6`h. He waited for hours and hours, and they only asked him one question. But I think it was really good that he saw some of the concerns of some of the Council members in regards to Bill 209, and just because there seemed to be —they didn't want to make an ;inadvertent mistake. Because I don't think there's been any bad faith or, you know, anyone intentionally trying to do anything at all. They're just concerned about clarity, so I think we're all very appreciative of your work and that you're looking at this in a prospective manner. CHAIR: And I would agree with that assessment. You know, I don't see anything intentionally being done. GOODENOW: Thank you. CHAIR: Thank you. MALANKA: May I ask a question? CHAIR: Sure. MALANKA: Does each Council member have a budget annually for advertising? GOODENOW: Yes, in our budget that's submitted —it's part of the Clerk's Office budget —each Council member is allotted $15,000. It used to be $7,500. For this fiscal year it was increased. And that's to be used for all types of things — office supplies, refreshments at the meetings, travel to seminars in Honolulu, and it does state that they really are primarily responsible for that allowance, in spending that. Now, we will get the invoices, receipts, and then we will process them. And then it gets reviewed by the Accounts Department, the Purchasing Department. So the Finance Department will review them, and they don't really review for ethics questions, but they look for purchasing questions. So there is that type of review over —when we expend public monies. MALANKA: And the $15, 000 was for the fiscal year. GOODENOW: Right. So July P, right. We do have a provision. Let me quickly look at that. It does say in an election year we allot 50% of the appropriation, because, you know, we may have overlapping Council members. So for this year, they've got their amount, but for next year —oh, no, for this year, because it's an election year, they can't spend all of it. They have to reserve 50% for the next Council member. CHAIR: Thank you, sir. Mr. Ashida? I think we can wrap this up with asking you a few questions. Let me ask you first oiall- -did you —were you able to find out from the other counties whether or not elected officials run their photographs? ASHIDA: I —yes. I checked with the corporation counsels from the other counties, as well as the representative from the State Legislature, and they don't have any recollection of this ever becoming an issue. That's not to suggest that this hasn't 18 occurred before. I just —but it suggests all this says is it's never been contested or made an issue in any of their counties. CHAIR: My question was, has any elected official in any of the other counties, including the State Legislature, placed their photo in any advertisements in which the government paid for it? ASHIDA: I know personally, yes, 1 know that, because I live in Council District 1, and in that particular state senatorial district, I do receive publications from the state representative from that district. And his picture —as a matter of fact, I think I've even seen his children appear in that publication, and that is paid for with state funds. CHAIR: Maybe I need to rephrase my question. The subject here is meeting announcements that are placed in newspapers, and- ASHIDA: - -No— CHAIR: - -and photographs in meeting announcements that are paid for with taxpayer money that run in local newspapers in this County, in Maui, in Kauai, Honolulu City and County —do you know of any instance in which that is done? ASHIDA: No. CHAIR: Thank you, sir. And at the State Legislature? ASHIDA: You're asking whether I have personal knowledge of it? CHAIR: Or did you inquire first? ASHIDA: I inquired. CHAIR: And their —and their explanation or their- ASHIDA: Their recollection is— CHAIR: - -that particular incidence, no? ASHIDA: No. CHAIR: We are at- ASHIDA: I don't think you can conclude that it has never happened. All you can conclude is their representation to me is that they have no recollection. CHAIR: We are entering into new waters. Yes, Ms. Lum? Once Mr. Ashida- LUM: - -Have we determined- 19 CHAIR: - -Ms. Lum, once Mr. Ashida answers my last question- LUM: - -Oh, okay, I'm sorry. He was pausing, I thought he was done. CHAIR: Are we now then entering into new waters? ASHIDA: New waters on what issue? CHAIR: On the issue of having photographs with ads run in newspapers that have meeting announcements. ASHIDA: You're being called upon, or you have initiated on your own, an inquiry to determine whether doing that would violate any provision of the Ethics Code. So yes, with respect to this particular body, you have never previously opined on it, which is the very reason why we had recommended that no investigation per se against any Council member be initiated, because it wasn't fair, as they were never put on notice, because you never acted on it, so the answer to your question is yes. However, the State Legislature, the State Ethics Commission, has already answered that question. So the issue has been discussed, adjudicated, decided elsewhere, yes. By this particular Board of Ethics, no. CHAIR: And are we obliged to follow the 2007 ruling that you cited earlier? ASHIDA: It's state law. 1 would unqualifiedly recommend you comply with all provisions of the state, county, and federal law. CHAIR: Ms. Lum? LUM: 1 just have a question - -maybe because I was late I didn't catch it. But have we determined the additional cost of photographs in these types —can you answer that, Mr. Yagong? CHAIR: - -1 could answer that as well. LUM: I'll ask Mr. —he's got lots of experience. You do too, but I'll YAGONG: When you buy an advertising space, you buy the space. So in other words, you could have five words on there and three pictures on there, it doesn't matter- LUM: - -Okay, so there's no additional cost. YAGONG: No additional cost. LUM: Okay. Thank you. CHAIR: Any further questions for Mr. Ashida? DILL: Oh, I just want to thank you and your staff for all the hard work in putting all this stuff together. U1] CHAIR: If not, could I ask for a ten - minute recess. DILL: Sure. 1 move- LUM: - -Do we need a motion? CHAIR: A ten - minute recess. (The meeting recessed from 11:15 a.m. to 10:25 a.m.) CHAIR: Call back to order. Okay, at this point, unless Board members have anyone they'd like to call or any questions they'd like to ask- MALANKA: I have a question. CHAIR: Yes? MALANKA: Why is this an issue? CHAIR: Why is what an issue? MALANKA: Looking into photos being in the newspaper. DILL: The Board initiated it. MALANKA: . Right, I understand that as well, and I just thought about it a lot more since our last meeting, and - LUM: - -1 have also really been thinking, and 1 think it comes down to a really fundamental —the idea of a picture and words. How different are they? I mean, how different is it to have a meeting announcement with just words, or a meeting announcement with pictures? Is one more self - promoting than the other? CHAIR: I have one here, by the way, by Mr. Donald Ikeda, and it looks like this. It just ran in yesterday's newspaper, and this is typical, I think, of what County meeting announcements from elected officials typically looked like in the past. LUM: And as you are reading through 20 pages of newspaper, does that hit you if it says community meeting? What community? I've really thought about it a lot, too, as to —I think Mr. Yagong used the word image- driven, and I think as we become a less and less literate society and more used to images, television, ads, you know, we're bombarded by that all the time. Our question —are pictures political promoting by their nature, or, you know, self - promoting by their nature, or are they becoming something else? So I think that's a difficult issue, because it's- MALANKA: Well, and if we are an image- driven society, then image is natural to use and it does not in my thought process conflict necessarily with what the idea is —to get 21 the people to the event, you know, whatever it takes. If it's a picture of the person who's going to be there to answer questions, if it's a person, or the mill, for example. If that's the focus of the meeting, then, you know, whatever the image is to get the people there to get the productivity of the meetings done. That's what's important. I don't think —and I certainly understand the election year situation —I'm not trying to conflict with that in any sense. But even if it is self - promotion, you're given a budget to use. And if it also includes the information about the meeting, what were the words used —to carry out duties as elected officers, to enhance accessibility. And those are important things, and if that picture is what accomplishes it, so be it. CHAIR: I think the argument might be that as an elected incumbent official, running your photo in the newspaper numerous times would give you an unfair advantage which is paid for by the taxpayers. Now remember that $7,500 budget is actually taxpayer dollars- MALANKA: -- Right— CHAIR: - -and should taxpayers be financing an enhancement of an elected official? And that's really the bottom line. Are we okay with financing enhancing an elected official's image? I mean, it's already tough enough for someone running against an elected official to get recognized, name recognition, image recognition, from their constituents. Now you're advocating allowing taxpayers to help that incumbent even more by allowing them to put their photos? And then, once you allow this, how are you going to regulate it? I mean, Mr. Yagong had a conservative photo. Mrs. Nae `ole had a quite larger photo with far less text. If you allow this, I can see this system running amok and having larger- than -life photos with three, four words saying meeting, wherever. LUM: Then you'd better vote that person out. CHAIR: You're opening a can of worms if you're saying that it's okay. That's my view. Yes? NICHOLSON: And there I agree with Mr. Yagong when he said ultimately, the voters decide. So they're going to decide whether that is offensive or not, whether they think it's supporting a public service or supporting a campaign issue. But what we're looking at, just to clarify, we're looking at should an elected official be able to use their photo in a paid advertisement? CHAIR: Is it an unfair advantage? NICHOLSON: Is it an unfair advantage— CHAIR: --for them to use their photo -- NICHOLSON: --for them to use public funds versus private funds— CHAIR: That's the issue. 22 NICHOLSON: And to what degree they need to make sure that it's clear that they're using public funds versus private funds, perhaps that's part of the issue. And how does that tie in with using your photo in relation to the time for an election. So we're sorting out those — essentially those three things, right? CHAIR: Well, yes —but might I just say that - -that from the day an elected official takes office, I more or less assume that they will run again, and the vast majority of elected officials run for office again. So it could be argued —it could be argued that it's just not in the political season. The political season is for the entire two years or four years or whatever they got elected to. But I have Ms. Nae `ole, which means Mr. Dill. DILL: Huh? CHAIR: No, it says Ms. Nae `ole- DILL: Oh, all right. Well, going back to board member Malanka, your question was why is this an issue, and 1 think Wayne in this discussion has brought up the arguments as to why this is an issue. Essentially, the question is, are we serving a public purpose by pursuing this issue? And the parallel to that - -is Mr. Yagong, or these other ads showing their picture, are they serving a public purpose by putting these ads and getting feedback and information to their constituents? I think the key here is the parameters attached to this. Was Mr. Yagong acting with malice aforethought? Was he seeking individual political gain by printing his picture? Was Ms. Nae `ole doing that? And it really is the parameters attached to their intentions by doing this. Are we serving a political game by even —by wasting Mr. Yagong's time, if that could be construed as wasting his time, and taking him away from his duties serving his constituents? Same thing with Ms. Nae `ole. And are they wasting taxpayers' money by putting their pictures in the ad, or are they using the taxpayer money to inform their constituents of issues that they feel are relevant to their community? I guess you know, going through all this research that we've been going - -since last month, going over, I'm just afraid that should we spend too much time chasing shadows, it becomes counter productive, not only for us but for elected officials or the people we're investigating. And furthermore, it also —I think we run the risk of devaluing the decisions we make here on our Board, you know. If we decide to start making decisions on every little thing that even smells of an ethical violation, people are going to stop taking us serious, and they're going to stop taking our decisions serious. I think it's important to clarify what our intentions are, but also I think we should reserve our decisions for matters that are really important to the public, so that there is some weight to the decisions we make here. MALANKA: I agree, because I think the public wouldn't even have - -and forgive me if I'm wrong, because maybe somebody in the public did bring this to your attention, Mr. Joseph —but I just can't imagine that the public would look at this ad and say, oh, he's trying to promote himself. It's an image- driven society, as we said earlier— CHAIR: - -Well, I think we need to read Mr. Ashida's April 23rd report in which he said this office received numerous calls concerning the photo in this ad. 23 DILL: And I think in Mr. Yagong's testimony, he pointed out that those inquiries stopped completely as soon as he went to the media and said that he was not running for mayor. You know, there's this political ballgame that is being played in the shadows, you know. And of course as soon as he made it clear, public platform, that he's not running for mayor, those inquiries stopped. And I think in his testimony he said that proved to him that those questions were politically driven. LUM: I would like to see us look at what the State did in 2007about recognizing this campaign —the campaigning aura of this so that the pictures, the candidates' personal pictures, stopped at the time of filing or —the time of the first filing, or the time filing papers are pulled —those kinds of dates, that's just fiddling around. And the rest of the time, as long as it's used for honest, real -- attracting attention to a public meeting, whatever picture, I think the size, the whole promotion sizing-1 think that they're financially probably limited, as long as the clerk —that fund is limited, that DAE fund is limited, they cannot spend all that much on advertising. CHAIR: They're all standard size. LUM: Yup. CHAIR: And they all use standard sizing. LUM: And I happen to think that this mill picture is very effective, but I do recognize that more and more there are images. So I would like to see us follow that pretty much, that 2007 State Legislature focus, from the time either the candidate files or from the time the first papers are, you know— what's the date, they're able to be pulled February or something, from that date on— February 1 S` on, just in respect to political campaigning, that elected officials don't use their own personal pictures. ASHIDA: Actually, Ms. Lum, February Is' is the date that the nomination papers are available- LUM: -- Available. ASHIDA: The state law talks about the time that the candidates actually file, so that may be a later time. I think, if I'm not mistaken, the filing deadline for a County seat is the third week in July. LUM: I personally would rather see it take place —I mean, because somebody can file at the very end, right? ASHIDA: That is correct. LUM: So I would rather see it at the time papers are available, just to make it easier, that it all stops. That's just a personal opinion. I could be— somebody could change my mind on that if there are compelling reasons. But until that time, I don't see it as a problem. A CHAIR: I have a question for Mr. Ashida. LUM: Okay, I'm done. ASHIDA: Yes, sir? CHAIR: You first. ASHIDA: No, I don't have a question. CHAIR: Oh, I thought you were researching something for us. ASHIDA: No. CHAIR: Mr. Ashida. ASHIDA: Sir? CHAIR: I don't know, I guess I'm not as intelligent as anyone here- LUM: - -Yes, you are— CHAIR: - -But I'm having trouble comprehending the 2007 State Legislature and what they're actually saying. So let me just ask you a couple direct questions, and maybe you can help me through this. Are they saying that we're prohibited in ruling that photos in meeting announcements cannot be used, period? ASHIDA: No. CHAIR: So we could then take the high road and ask that elected officials in the County of Hawai `i, of which there are only eleven, that we would recommend them not using their photographs in any printed meeting announcements —would that be correct? Couldn't we do that, Mr. Ashida? ASHIDA: You could. DILL: I'm sorry, Mr. Chair, could you repeat the last part? Take the high road by just clarify what— CHAIR: To just clear up this whole mess, come up with a firm informal ruling that elected officials in the County of Hawai `i not be allowed to use their photographs in any printed meeting announcements. DILL: Okay. NICHOLSON: Using taxpayer money. CHAIR: Oh, of course yes. I mean, what they do with their own money - 25 LUM: - -Could that, though, be construed as preventing their communication— DILL: - -I think it could. LUM: - -or deteriorating their communications? ASHIDA: Yes. LUM: It could be? Because there's something here— CHAIR: You know what's strange about this, that you ask that question, is that for years they've had communication without using photographs, and it's only recently that that photograph's been included. ASHIDA: They call that the CNN Fox News Network- LUM: - -I'm not surprised. ASHIDA: It's just the reality of our- LUM: - -I know, I know, yeah -- ASHIDA: --progressing, or maybe you would say regressing, as a society. DILL: Well, if I could just counter that thought in terms of taking the high road and clearing up this mess, I think we could refuse to offer an informal advisory opinion and allow our elected officials to follow what's already established in the state level, and then move on to more Board business. CHAIR: Well, I personally happen to think this is important business. DILL: I think it's important, but 1 don't know if it's relevant to our function — CHAIR: - -It's very relevant to our function. We were put here to ensure public trust. DILL: I understand that, Mr. Chair, but what I'm trying to say is that it's already established on the state level. It's state law, and if I'm not mistaken, all of our elected officials are required to follow state law. And this law deals with what we're discussing directly — sufficiently for me, anyway. But that's why we're here as a Board, and not one of us is making a decision, we're all making a decision, so, based on our votes. LUM: 1 would think that what we would do would actually practically say the same thing as the state law. Whether we would want to have it as a reiteration of our County, you know, our business, our — looking at our County, state —our County Code of Ethics, there are times when we don't particularly follow the state - -it's not law, but we don't necessarily follow their decisions. But I'm quite happy with the state —with the way the state law —it's okay up until the time they —well, until the time a candidate files 26 nomination papers. 1 would prefer it to back off to February 1 S` in the ,County, but — which would be a little more stringent than the state law, right. DILL: Well, Mr. Yagong had mentioned an informal agreement about —what was that pertaining to, not printing pictures- LUM: -- January I", I think he said January I". DILL: If you could you clarify that for us? YAGONG: Understanding that, you know, it is a reality that some of the concerns - -that back in May I mentioned to both Casey and Mr. Ashida that come January P, because of the upcoming election season, we would voluntarily not do it. And this was in lieu of not knowing what the state law was which is something we decided to do. DILL: The full Council agreed on that? LUM: It was just your office- YAGONG: Yeah, just for us, as an office we decided to do that. DILL: Okay. YAGONG: So in essence, I guess that means that we would be following the state statute as it is. LUM: More stringent than the state law. DILL: You'd go beyond it. Is this something that was discussed between the Council — were the other Council members informed? YAGONG: It was something that just for myself, we discussed it with just along with my staff. And we said, you know, January I" ' we'll stop utilizing any photograph and try to use other methods, which we did, with the Wainaku sign and so forth. You know, I would like to comment, Mr. Chairman. I think your discussion was very good. I do want to say that, you know, for myself —l` can't speak for the rest of the Council you know, obviously, if you look at the state law, it would seem to me not only fair but very prudent for us to adopt a policy quite similar to that. Of course, you'd have the option to move it up a little bit, be more stringent, and of course that's your call. But certainly I believe that the state actually, in putting that law together, really gives us a foundation as far as to what road we should travel. So I personally don't have a problem with that. I'm already voluntarily doing that, but I think it's prudent to do that. NICHOLSON: Mr. Chairman? CHAIR: Yes? 27 NICHOLSON: I'd like to make a motion so that we can move forward, and I agree with Ms. Lum that it would be good to use the February 1 sr deadline, simply because the newspaper always prints who has pulled nomination papers, so there is an assumption that someone is at least interested in running at that point. So just for the purpose of moving ahead here, I would like to make a motion that we adopt the Section 11 -10, Hawai `i Revised Statutes, passed by the State Legislature, for —on this issue that we're discussing —with the difference that rather than from the time the candidate files nomination papers, it be from the date the nomination papers are available to the County. LUM: Are you just saying a candidate, or anybody? DILL: Well, technically, only an incumbent can be spending County funds. NICHOLSON: . Yes, any incumbent, from the time that the nomination papers are available in the County of Hawai `i. CHAIR: Can I get a second on that? LUM: Yes, second. CHAIR: Okay. LUM: Now, wait —let me clarify that was any incumbent on February Is`. NICHOLSON: Well, or from the date that the nomination papers are available. It may change in the future. LUM: Date nomination papers —okay. Okay, second. CHAIR: We have a motion and a second. Discussion? ASHIDA: Mr. Chairman, I have a comment on that, if I may. It sort of goes along with what Mr. Dill had suggested about the Ethics Board considering this issue, because when you act on matters like this, you sometimes inadvertently, sometimes unintentionally, touch other areas of County government, or thereof, what we call unintended consequences. If your motion, and what you're proposing to do is limited to incumbent County elected officials —let's use Mr. Yagong as an example, because he's here and he's been kind enough to let you know what happened in his situation —as you phrased it, come February I", he would be prohibited from running an ad where his picture occurs. That's what it says —he's an incumbent, elected County official- LUM: - -If he paid with public funds- ASHIDA: --paid with public funds. Assume you have just for the sake of argument, just for the sake of argument — assume you have —let's say Bruce McClure, because he's our Public Works Director. Now just say —he doesn't —but let's just say he lives in District One, and he wants to run against Mr. Yagong for that Council One district 28 seat — Council seat. And he's going to have a series of informational meetings about road improvements in the first district, Council district. So he puts ads in the paper, running his picture, and says come to discuss with me, the head of Public Works, and we'll tell you what plans we have with CIP monies that have been released, and what we're going to do. Your motion, ifpassed as written, wouldn't apply to him. Would he now have the unfair advantage, you know- MALANKA: Would he be paying for that ad with public funds? ASHIDA: Yes. CHAIR: I have a question. It was always my understanding that if you were a state or county employee and you declared your candidacy, you had to resign or take a leave of absence. ASHIDA: No. CHAIR: Then the County doesn't have that? ASHIDA: That's not true at state level, either. You're talking about the resign -to -run law. CHAIR: I was a school teacher for 30 -odd years. I was told that if I run for office, I could not stay in class. ASHIDA: Who told you that? CHAIR: Patricia Nekoba, a whole bunch of other administrators. ASHIDA: I don't know the circumstances, but we have a County employee right now who's running for the office of mayor, and he hasn't resigned and he's not required to, as far as I know. CHAIR: I think once he files his papers, doesn't he have to? ASHIDA: The resign -to -run law basically applies to those —if you are currently sitting in an office where the expiration of that office extends beyond the commencement date of the office that you are seeking, then the resign -to -run law applies to you. Kenny, that's CHAIR: So Mr. Kenoi didn't have to resign. ASHIDA: He didn't have to resign. My understanding is he elected to. So, you know, Ms. Nicholson, I just wanted to throw that out at you- NICHOLSON: -- Thanks- 29 ASHIDA: -- because you have a situation where you are allowing a non - incumbent to get a lot of face time, if that's what this Board is concerned about, you know, which is why when you opine on something like this, understand that you might have far- reaching consequences that you may not expect, anticipate, or may even want. DILL: I just —we're in discussion, right? CHAIR: Right. But we do have a motion on the floor. DILL: Yeah —no, I want to discuss the motion. Just to kind of echo what Lincoln was saying, I think by offering an informal advisory opinion, we might be limiting ourselves to what we can look at. And I think at our last meeting we had discussed parameters of investigating on a case -by -case basis. Being that we already have this state law in effect, and I think that we can use that as a guideline for future cases, and if we do offer an informal advisory opinion, we might be limiting ourselves or —that might be opening a whole can of worms as well. 1 do like the idea of the February 1 S` date, but I don't know if the risk of trying to limit ourselves for future cases or whatnot —if it's worth it or not. LUM: It sounds like, from what Lincoln is saying, that the bigger problem would be changing what we're saying from candidate to anybody. I mean, the state law is very specifically to somebody that's filing. And we get into trouble when we try to go out beyond that to allow other people to take advantage. ASHIDA: Then the question becomes whether this Board has jurisdiction over non - County employees. LUM: Yes. DILL: Right, right. LUM: More and more it seems like you've got the solution. CHAIR: But why would we —I don't understand why we'd need jurisdiction over non - County employees. ASHIDA: Because your jurisdiction is limited to interpreting the Code of Ethics as it applies to County officers and employees. CHAIR: Absolutely, and that's all we want to do. We don't want the jurisdiction of going beyond that. ASHIDA: The state law as written right now says no person —it doesn't say no government officer or employee who is a candidate for public office. It says no person. So as written, it includes everybody, right, basically everybody. DILL: So, for your example, using Mr. McClure and Mr. Yagong, Mr. McClure would be in violation of the state law. But if we offer and pass the motion that's on the table, he wouldn't be in violation of our informal advisory opinion. 0111 ASHIDA: Can you say that again? DILL: Okay, using your example where Mr. McClure holds road improvement projects and puts an ad in the paper with his picture, and Mr. Yagong at that point can't put his picture in the paper, Mr. McClure would be in violation of state law. ASHIDA: Not if he hasn't pulled or filed his nomination papers. DILL: Okay, if he hasn't. Say he has, then he would be in violation. LUM: But if he hadn't pulled – DILL: I guess- LUM: - -See, that's the question between— that's why 1 first stated pulling nomination papers. DILL: Yes, right, right, right. Okay. LUM: this state law is from the time they pull papers. ASHIDA: Going back to the jurisdictional question of who does this apply to, consider the situation where you have the Prosecuting Attorney in our County. That is perhaps the only elected office in our County which doesn't have a residency requirement. And I know that because my former boss ran. in a close election against a gentleman who was not from this County. As written, as proposed, your informal advisory opinion would not be applicable to him or her, because your jurisdiction is only County - based. NICHOLSON: But state law would apply ASHIDA: Correct. NICHOLSON: But this is a non - resident of the state. ASHIDA: Correct —no, non - resident of our County. NICHOLSON: But the state law would prevent them, too, from running their photos in ads. ASHIDA: Yes, but what I'm saying is they could take it all the way up until the filing deadline. You would be restricting it to February P. By the way, just for your information, the Prosecuting Attorney derives his or her power from the State Attorney General, which is why it's state -wide rather than the County. DILL: If I could just say a couple more things, and I think —it comes back to, you know, if the incumbent is acting with malice aforethought and has intentions for individual political gain, then obviously that's something that we need to look at. I think if we offer 31 a general informal advisory opinion that the motion that's on the table has good intentions —but 1 just think it's too broad and I think we should just stick with the case - by -case basis. Is this person trying —have malice in mind, and trying to have some sort of conniving motivation in putting their picture in the paper and disguising it as informing his constituents? I firmly believe that the state law is sufficient for what we have right now, and 1 think that in future cases, as they arise, should they arise, then we look at it and see if it's worth pursuing. CHAIR: DILL: What's that? CHAIR: If I might comment further. DILL: Yes, please. CHAIR: First of all, we're not here to look at intent. We're here to look at whether or not it's an advantage of the incumbent to use their photograph in these types of ads. And we need to limit our focus on that, not the intent —I mean, Mr. Yagong has great intent, very positive. What he does for the community is wonderful, and that goes without saying. And I appreciate you being here and commenting on this. The thing that needs to get resolved is, do photographs and taxpayer dollars that - -the meeting announcement, does that give the incumbent an unfair advantage? And you know, I just have to say in my heart that the more times you see somebody's picture in the newspaper, they're getting a great advantage, you know. You see my picture in the paper every Monday. Nice color, smiling. But the County taxpayers don't pay for that, you know, and I'm sure a lot of people recognize my face and the whole thing, but the County taxpayers do not pay for that. DILL: Just on the flip side of that, and I'm moving away from the intent issue, you're asking if this is an unfair advantage. The flip side of that is, are we then —by prohibiting Mr. Yagong or any elected official from putting their picture in the paper —are we limiting them from doing their duties to their fullest extent in serving their constituents? Mr. Yagong in his testimony made it clear that he saw a stark difference in community meeting attendance by having his picture, and not having his picture and text only. So if we do offer this informal advisory opinion and put limitations on their actions, are we tying their hands essentially and preventing them from serving the people that voted them into office and keeping them informed? I think we're running that risk if we were to prohibit them from doing that. CHAIR: You know, and again your argument is based on intent— DILL: - -No, no, no— CHAIR: - -and this informal advisory opinion is not based on intent. It's based on whether it's an advantage to the incumbent to have their photograph, and that's the entire argument. And that's the entire focus I think we need to look at. Is it an 32 advantage? And if you think it is, then you should support not having photographs, period, by elected officials. DILL: Okay, but you know, if I'm dwelling on intent too much, then I think maybe we're moving away from the motion that's on the table. If it is —if the core of this issue, like you mentioned, is whether or not this is an advantage or not, then we should change the motion, or dismiss this motion and have something that reflects what you say the core of this issue is. CHAIR: And I agree. I'd be in favor of removing — withdrawing this motion and changing- LUM: - -The second withdraws first -- CHAIR: -- because 1 personally would favor not having photographs, period, because it is an unfair advantage. MALANKA: If I may say, if Mr. Dill is focusing on intent, as you have indicated, I'm concerned that there is too much of a focus on a photo. I mean, if you see a name, the same thing could be construed. I think that if you put Brenda Ford in capital letters in a half -page ad as many times as she wants to use the funds— CHAIR: - -as long as it says community meeting on it, that's fine. MALANKA: Right. But I think that that could be as unfair an advantage as the photographs. DILL: I agree. And Mr. Joseph mentioned that by allowing —his opinion —by allowing them to publish your photo, it's opening a can of worms, and he referenced Ms. Nae `ole's size of her picture. And then what's next? We're going to have nothing but a face and two words. Same thing goes with what you're saying. If we limit it to text, then what is it going to be? Community meeting in eight point and then Dominic's name in bold, capital letters? Which comes back to the core of what my opinion is, is that maybe we're just delving in too deep on this. And by offering an informal advisory opinion or taking a stance on this policy, we're limiting ourselves and we're jumping it a little too far, you know. I think that we're running that risk. ASHIDA: What Mr. Dill is saying is why the United States Supreme Court refused to define what pornography was, and instead they said you'll know it when you see it. DILL: Right, exactly. Yeah, that's what they said- - ASHIDA: - -What they said is it's incapable of actual verbal description, but it needs to be assessed on a case -by -case basis. Now, you know, obviously I don't vote you five do -- and this is a terrific argument— discussion and argument that's going on. It's very thought provoking. One comment I have, though, is the resolution as written that was distributed to each of you, and Mr. Joseph, you have signed it, and I'm prepared to attest to it —it says that this is the nature and scope of the inquiry —it's limited to this. Does 33 the —the question —does the use of County funds for the purpose of purchasing an official County newspaper advertisement that includes the picture of an elected and incumbent County officer constitute a violation of the Code of Ethics, period. It really doesn't say anything about unfair advantage, and let me just submit this. Unfair advantage you know, to answer your question, Mr. Joseph, you're asking does an incumbent have an advantage? The answer to your question is yes. But I believe —but it may not, as the 1988 Honolulu ethics commission opinion said —it is an advantage. They admitted that. They didn't run away from that question or say oh, no, it's no advantage. They said yes, it's an advantage. It's a natural advantage. However, the public purpose is there. It outweighs it. The advantage is an incidental by-product—it's an incidental advantage that accrues because the elected official is in that position. 1 got contacted the other day from the Department of Parks and Recreation. Campaign season is here, okay. And there are contested races out there. This wasn't at the County level, this was at the state level. But an incumbent state elected legislator who's in office right now is running community meetings in a particular district and utilizing our County facilities, and he does this to update the constituents out there on what's going on at the state level in terms of different projects, and so forth. The challenger, a non - incumbent, complained about that and said you know, why is he allowed to do that? And when we looked at the issue and discussed it with the attorneys in our office, we could not conclude and say that, oh now you cannot use our facilities anymore, because it's not fair. And we just concluded, you can't escape from the fact that —and somebody at —one of the administrators at Parks said, you know, Lincoln, that's why incumbents are hard to beat. That's why they have an —there is an inherent advantage. We want to level the playing field, that's a very, very noble objective, but sometimes in your effort to do that, you necessarily, then, take away the incumbent's ability to perform his or her duties that they were elected to perform. And then I was asked, well how do you know they're not doing campaigning? And 1 said yeah, I don't know that. But it is an —we are in an honor system, and I talked to that non - incumbent candidate and said if you hear or see or witness anything, you report it to us and we'll follow up on it. But yeah, it is —to answer your question, it is an advantage. The question though, the relevant question, is it an unfair advantage? That's what the Honolulu ethics opinion says —we recognize it's an advantage, but as long as the public purpose is there, it's legitimate, and like Mr. Dill said, fact - specific —a fact - specific inquiry, at least the Honolulu ethics commission said And you're not obliged to follow them, but it does provide us some guidance. No violation. And you're right —if it's small, you know, eight point type, all the community meeting stuff, you know, and 95% of the ad is the photo, big name in bold letters, I'm sure it's going to find its way before you. DILL: Sure. ASHIDA: Somebody's going to, especially during campaign season. Somebody's going to file a third party complaint, and you're going to have to deal with it. So I'm just throwing that out to you to consider. LUM: So the procedure to withdraw a motion is the second withdraws first, or the motion first? NICHOLSON: Or we can just vote it down. 34 LUM: Or we vote it down. DILL: Okay. CHAIR: Or we just continue with discussion. Are you going to withdraw your motion, or do you want it to come to a vote? NICHOLSON: I'll be happy to withdraw my motion, if you'll withdraw your second. LUM: I'll withdraw. CHAIR: Okay, then we're back to square one, then. LUM: Now if —would you repeat the wording that you just said about —I can't find it. ASHIDA: You have the resolution -- DILL: - -Yeah, I have it right here. Could I just read it real quickly? LUM: Okay, all right. Yes. DILL: Does the use of County funds for the purpose of purchasing an official County newspaper advertisement that includes the picture of an elected and incumbent County officer constitute a violation of the Code of Ethics? And I think what Ms. Nicholson was trying to accomplish was some positive movement in our discussion, and what I'd like to do is take this wording and offer it as a motion for a vote here. LUM: Well, that's a question you have to —oh, you mean yes or no? DILL: Yes, yeah. LUM: Okay. So that's your motion? The motion is— DILL: - -if we can vote on whether this does —as it's stated in this Communication 2008- 19, under be it further resolved that the nature and scope of the inquiry shall be limited to the following question. I would like to offer a motion, a yea or nay vote, to answer this question that states —I don't know if that's allowable. CHAIR: I believe it's allowable. I'll accept your motion, and is there a second? LUM: I'll second. CHAIR: We have a motion and a second- LUM: - -to answer this question— CHAIR: - -and one more time, Mr. Dill - 35 DILL: Sure. CHAIR: Could you carefully do that? DILL: The motion, or read the— CHAIR: - -the motion. DILL: Okay, I'd like to offer a motion that we vote yea or nay on the question detailed in Communication 2008 -19, under be it further resolved that the nature and scope of the inquiry shall be limited to the following question: Quote – does the use of County funds for the purpose ofpurchasing an official County newspaper advertisement that includes the picture of an elected and incumbent County officer constitute a violation of the Code of Ethics? CHAIR: So by voting yes, that means you would agree that it constitutes a violation. DILL: Correct. CHAIR: And by voting no, that means you would disagree. Now we're open for discussion. Thank you. DILL: Yeah. NICHOLSON: DILL: Yes, please. NICHOLSON: I don't know how I would vote without addressing the content of what the advertisement is. DILL: Well, I think that's what comes back to our broad - based —if we're going to be accepting this and voting yea and agreeing with this, the nature of this question, we're basically casting a pretty large net over the whole issue, and in my opinion, a larger net than is needed. You know, Lincoln referenced the Supreme Court ruling regarding pornography, that you know it's pornography when you see it. I think that kind of thinking, line of thinking, can be applied to a violation of the County Ethics Board by using a picture during apolitical season that's too large or has unintended —or has specifically intended campaign advancement. So my opinion is that, you know, a yes answer to this question is just casting too large of a net, and we should be dealing with these things on a case -by -case basis and when they are brought up in front of us by a third parry, or initiated by this Board. MALANKA: Igo back to my comment, though, about the size of the type in the ad. It could be the same thing. DILL: Right. MALANKA: I don't think a photo has any place in this discussion. DILL: Yeah, like what 1 said, too, when you had mentioned the size- MALANKA: - -I feel like we're not dealing with what we're here to be dealing with. DILL: Yeah, I agree that, you know, going either way, we'd just be opening a can of worms, we really would. CHAIR:, Well, I think by voting yes, it would close that can of worms, because then we'd be sending a message that photographs in these types of taxpayer ads should not be allowed. And 1 strongly believe that. We should not be supporting elected officials' photographs in taxpayer ads. DILL: And vice versa. I respect your opinion, Mr. Chair, and I feel that if we were to vote yes on this, we would be, first of all, kind of beating a dead horse since this has already been addressed on the state level and there's a law enacted to address this. And furthermore, 1 think that we might be risking tying the hands of the elected officials in communicating in a meaningful manner with their constituents. LUM: But by —oh, excuse me. CHAIR: Mr. Yagong has the floor. YAGONG: Yeah, thank you. Very provoking discussion, thank you very much. I guess for me, I had a conversation with Mr. Armstrong earlier, and what seems ironic to me is that in trying to do the duties of a Council person by being out there to the community and being active in the community and engaging with the community, it would be ironic that you might want to curtail that. It would seem tome that abetter inquiry would be whether or not —and it's an ethical one — whether or not a Council member or elected official is actually doing their job. It would seem to me that's the more important question that we should ask. You know, you could certainly line us up, and certainly you could ask yourselves, you know, what is the performance of the Council person of the district. And it just seemed ironic to me that in the efforts that we have made throughout the year, and in so many months office, it's just ironic that you know, wait a second, you could be penalized for doing that, you know. And I guess what I would ask of you, Mr. Joseph, is that, you know, it's very difficult to do the job that we do. And any time that you tie the hands of the Council member, you know, you are putting the community at a disadvantage. It's not so much really an advantage for the incumbent or for the Council member, but you put your community at a disadvantage, because you take away the incentive for people to be proactive. You take away the incentive for people to actually do what they were elected to do, which is to go out and do your job by engaging with the community. And sometimes that unintended consequence for me, any way, like I said, for me I feel like it's so ironic that we would be sort of taken to the carpet on this. Yet at the same time, I know on our end, whether intention is something that should be considered or not, that there is absolutely no intention at all. So 1 think the suggestion that's being made makes a lot of sense, whether you follow the state law or whether you 37 do it on a case -by -case basis. But what I'd hate to do is all of a sudden someone now comes up and says, having your name is an advantage in the newspaper. Should we now tell Tribune Herald — Tribune- Herald, when you write an article, do not put Mr. Yagong's picture in the front page of the paper. Do we say Mr. Yagong, but we don't want Harry Kim's picture in the front of the paper. CHAIR: Mr. Yagong, may I say something? YAGONG: Yes. CHAIR: You and I both know that these ads have been going on for years and years in the County Council, and there has never been an objection to this. The only thing we're discussing is something brand new, something not done before, in placing an elected official's photograph in these ads. That's the issue. 1 mean, is this what we want our taxpayers to be paying for? YAGONG: Yes. CHAIR: And you've entered new ground, you have to admit that. Now- YAGONG: - -I'll answer your— CHAIR: - -Now ifyou could cite to me all the years you've been in the Council, how many elected officials have used their photographs in ads. YAGONG: Mr. Joseph, that's why I mentioned to you, you've got to be very careful with that assessment, simply because just because it hasn't been done before, it doesn't make it wrong. Just like cell phones. We never had cell phones before, but the guy that came up with the idea, should he be knocked for that? I mean, there's things that just because it hasn't been done doesn't mean that it's wrong. But you should question— CHAIR: - -No, I agree- YAGONG: - -You should question the use of the money, though. That's what you should be doing. And that's where your decision should be based, on whether or not, you know, the use of that County fund does violate that Ethic Code. And certainly in my case, I don't think it did. But you would have that opportunity on a case -by -case basis, as suggested by Mr. Dill, to come forward on other instances. I would seem to me that probably any other elected official will be very hesitant now to put their picture in an ad. CHAIR: I thought they were always hesitant. YAGONG: And —well, I don't think it was so much always hesitant, Mr. Joseph. Like I mentioned, just because —I've done text ads before as well, you know, I've done it. But — and other peoples have done it. But at the same time, by doing it —by being first, again doesn't constitute a wrong. CHAIR: Absolutely. And I agree with that. And I agree with that. But the issue - 38 YAGONG: - -So it doesn't matter— CHAIR: - -The issue is you brought up the issue by using your photograph first, and now shouldn't we decide whether or not that might constitute an ethical violation? YAGONG: Oh, absolutely. CHAIR: And it won't come back to you, of course, because we're trying to make this — and just set a precedence to tell all other elected officials you can or you can't. DILL: 1 think Mr. Yagong had a fairly good point when he briefly stated that the actions of this Board to date —what we've done already, just looking into this issue —I think may serve a purpose of having our incumbents think twice about how big their picture is, what kind of —if they're going to put it in at all or not =if it's worth it, worth the pilikia, to put their picture in the paper. I think just the fact that we're looking into it might serve our purpose of just keeping things in check a little bit. YAGONG: And you know, at the same time it could also be a disservice, though. DILL: Sure, yeah. YAGONG: You know, it could be a disservice, Mr. Joseph and commissioners, simply because the whole intent of the DAE Account, the whole intent of public monies and so forth, is —is it being utilized for County purposes? And that's the whole intent. Where I think the ethics commission comes in is when they feel that no, it wasn't used for County purposes. It did not serve a governmental purpose. That's when I could see everyone on this Council jumping up and down and saying, you know, we really need to look at it, you know. But I would challenge any member here, as well as —and as I talk to my constituents —to take a look at what we have placed in the ad and that we have utilized taxpayer money. And if anyone could give you one inch of that ad that says this does not serve a good purpose. DILL: That's why I think a yes vote on this motion that's on the table now might be tying the hands of our elected officials to truly serve in the best capacity—truly serve the constituents. CHAIR: Ms. Lum? LUM: I have a question for Mr. Ashida. The way this wording is in the motion we have on the floor, does it say —does the use of County funds —okay, let's say if it were —does it mean that it would always constitute —see, to me, it's ever constitute or always constitute ASHIDA: It's always. LUM: It would be always constitutes, always constitutes a Code of Ethics- ASHIDA: It doesn't give you any wiggle room. 39 DILL: Yeah, regardless of election year or not. ASHIDA: You're basically opining that there's an absolute ban in the County of using it. End of story. MALANKA: And that's the concern that I have, that number one, it would be by the Council members that way, and number two, that it is a ban, and who are we to ban them? CHAIR: Well, it's always been banned. No one's ever used it. LUM: I don't think it was banned. It just wasn't done. CHAIR: That's right and- - LUM: - -It wasn't done. CHAIR: Why wasn't it done? MALANKA: Because nobody had the forethought, nobody —it went to the advertising department of the- LUM: - -It was probably cheaper not to run pictures- MALANKA: - -Oh, no— CHAIR: - -Mr. Yagong, what was your reaction when you found out that- LUM: - -they put the picture. YAGONG: I was surprised, because, you know, my first question was, did you do it, Steve? That was my first question —did you do this, Steve? And that's when he said no, it came from the Tribune - Herald advertising. CHAIR: But you were concerned because? YAGONG: No I just —I was surprised. CHAIR: And you were concerned because? YAGONG: I really thought it was —I wouldn't say -- CHAIR: - -Say that you feel you might be entering into a gray area? YAGONG: I certainly realized that this would be something that I have never done, and yeah, you're right — except for ads that Mr. Ashida talked about, when people know that it is paid public funds being utilized for informational purposes, and We 40 all get that, you know, and that has happened as far as public pictures, family, and so forth. That never bothered me much, you know, but I think the key point to remember here is that this is something that derived from an expert that was asked how can we get more people to notice the ad. Now if I told her, Kelly, put my picture there, Kelly— that's something else —take the file photo from the campaign last election and put it on. I didn't even know they had that picture. If it was that, Mr. Joseph and commissioners, yeah, absolutely. That shows intent, malice, and even conspiracy to try to utilize public funds. But that wasn't what happened. So —it wasn't done yet, but it wasn't banned. But maybe no one ever asked the advertising people what would be effective. And you know, for Pete's sake, that's her job. She runs the biggest newspaper on the island. That's what she —she's an expert in that, and that's what she came up with, without So, you know— CHAIR: - -And I think when Mr. Ashida's first opinion -- opinioned on this in April, he said, if I recollect correctly, what's allowed in business might not always be allowed in government. And I agree with that. You have different parameters in business and in doing things, but in government, you're held to a certain ethical standard. And for me, for me —I know for a fact when I see someone's picture regularly in the newspaper, you know, that image will stay there. And that does give an advantage to the incumbent. LUM: But when you vote, you don't vote on the picture, you vote on the name. CHAIR: Well. MALANKA: And should at some point. LUM: Yeah. I know —no, I'm sure some people vote on —not Wayne —not vote on the name, -- CHAIR: - -If photographs in ads were done over the last five years, I wouldn't even be discussing this. I'd have no problems with this. It's only because it's come up, and it's only because a couple Council people asked- LUM: --for information— CHAIR: - -what are we going to do about this? Where do they stand, because they'd like to do it as well. And so know that today, your opinion today will be based upon whether we see this regularly in the newspaper, and if taxpayers will be footing the bill for that. And if it's okay with you guys— DILL: - -Well, you say the word regularly. 1'd just like to reiterate again that there's a state law on the books that does regulate this activity, and we're here to serve the public interest in what's best for the public. And if we're starting to put limitations on how our elected officials communicate with the public, who we're here to serve and they're here to serve, then I really think we're sticking our nose into —and tying the hands of them doing the best job that they can do. LUM: Are we ready to vote? 41 CHAIR: I'm ready. DILL: Sure, I'm ready. CHAIR: Okay, the motion- LUM: - -Would you yeah, review and what a yes and no —and what a no means. CHAIR: A yes would mean that you would believe that photographs do constitute a violation, and a no would mean that you don't. Is that it, Mr. Dill— DILL: - -Yup- CHAIR: - -in a nutshell? DILL: And we're not going to be limiting future case -by -case investigations bypassing this, right, just to clarify it? Okay. ASHIDA: Mr. Chairman, if I may. The resolution that I prepared, and which you signed, it requires a roll call vote, and I will be attesting to the accuracy of that vote— CHAIR: - -But for clarification, yes means you believe it is a violation, and no means you don't believe using photographs would constitute a violation, correct? ASHIDA: A yes vote means that you agree with the wording in the resolution— CHAIR: -- Correct- ASHIDA: - -and the fact that we'd be opining —or issue —this Board would then be issuing an informal advisory opinion that the use of photographs paid for with taxpayer funds by an elected and incumbent County officer violates the Code of Ethics. It is an absolute — there's no wiggle room in there. Basically it's a ban on the use of photographs by incumbent, elected County officers at any time. LUM: And a no vote would not prevent us from saying, oh, but this picture does violate the Code of Ethics? ASHIDA: Yeah —a no vote doesn't prevent you from- LUM: -- investigating case -by -case. That's what I was trying to ask before and didn't ask it well. Okay. ASHIDA: That being the case, Mr. Chairman, I'll call you last. Ms. Lum? LUM: No. ASHIDA: Mr. Dill? 42 DILL: No. ASHIDA: Ms. Malanka? MALANKA: No. ASHIDA: Ms. Nicholson? NICHOLSON: No. ASHIDA: Mr. Chairman? CHAIR: Yes. ASHIDA: There are one affirmative vote and four no votes. So the motion fails. CHAIR: Are you going to prepare this? ASHIDA: I'll prepare a finding based upon the proposed motion and the proposed draft resolution. LUM: Okay. CHAIR: Could I exercise my right under 4.11 b in making a dissenting opinion? ASHIDA: You can go ahead and prepare that and it can be submitted at the same time. LUM: Good. Thank you, that's good. I'm glad you're doing that. So we can get both sides out. CHAIR: Thank you, Mr. Yagong. YAGONG: Thank you. LUM: Thank you very much, Mr. Yagong. YAGONG: Thank you. LUM: Thank you, everybody. Quite a— CHAIR: Mr. Ashida? EVIUMIMAN =I CHAIR: Can we move to number 6? 1 believe you wanted to discuss that ASHIDA: Yes. 43 6. Proposal to amend County Code Section 2- 91.1(a)(4), which defines "regulatory" employees, to include supervisors of inspectors and inspectors employed by the Department of Environmental Management. Mr. Ashida explained that he wanted to get the consent of the Board with respect to financial disclosures for regulatory employees. Currently, most regulatory employees are required to file disclosures, which is a good thing, as these employees have the ability to give citations. It is good for the Board to be able to review their disclosures for any conflicts. In 2000 a Charter amendment was passed by the voters which created the Department of Environmental Management, which previously had been a part of the Department of Public Works. The Environmental Management Department takes care of the landfills and wastewater, and it has regulatory employees who perform inspections and give citations. Because the department is new, its regulatory employees are not listed in the County Code as being required to file financial disclosures. Its director, Bobby Jean Leithead Todd, pointed this out to Mr. Ashida. He plans to propose to the Finance Committee that it introduce legislation to amend the Code so these regulatory employees of the Environmental Management Department are included among those required to file financial disclosures. Mr. Ashida said he just wanted to bring it up to the Board, since it would impact them. If they had no objections, he would proceed to take care of this matter. 7. UNFINISHED BUSINESS a. Report on status of Ethics Guide for Hawaii County Officers and Employees booklet. Mr. Ashida reported that the Guide was distributed to all officers and employees. In addition, many were handed out to board and commission secretaries at a training held the day before. There have been a lot of questions and positive feedback about the Guide. However, pointed out to him was an area of the Guide that needs clarification, regarding the hiring of relatives. It needs to be clarified that relatives who do not meet the minimum qualifications of a position cannot be hired. He will issue an errata on this section. Mr. Ashida asked the Board how they wanted to handle questions that come up about the Guide. Mr. Dill said the questions should be presented to the Board for discussion, and they should agree on the changes first. The secretary was instructed to agendize any questions that come up about the Guide. Questions received about the Guide should be put in writing and sent to the Board members. b. Report on status of Board's request for a time limit for incumbents who are seeking reelection in an election year on sending mail -outs using County funds. Mr. Ashida said he will follow up on this, as Mr. Hookano had indicated the bill may go to Council for action but it was not on the agenda. ,. c. Report on status of Council Bill 209, relating to the imposition of administrative fines for violations of the County Code of Ethics. Mr. Ashida reported that Bill 209 passed. The Chair clarified the final vote as 6 to 2. Mr. Ashida explained that the Bill will now proceed to the Council with a positive recommendation. The committee also increased the fine to $1,000. Although the majority of the members supported the bill, anything can happen. The bill should have its second reading in Kona next week. d. Ongoing discussion on the Sunshine Law. Mr. Ashida said he had nothing new to report on the Sunshine Law. Motion and vote: Ms. Lum moved to enter into Executive Session, and Mr. Dill seconded the motion. All members voted aye. Ms. Malanka was excused to tend to another commitment. Executive Session was entered at 12:40 p.m. Regular Session was re- entered at 1:38 p.m. 8. c. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2- 91.1(d), Hawaii County Code, by County board and commission members, where personal matters will be reviewed. The Chair stated that all the disclosures provided to them were reviewed, and the following were being returned for completion: No. 17, Bernard Konanui — Item 1 needs completion No. 18, Francis Kuailani, Sr. — Item 2 needs completion No. 19, Ann Lum — other BOE members need to be present to vote No. 26, Marilyn Nicholson — other BOE members need to be present to vote No. 28, Edgar Ombac — Item 3 needs completion No. 38, Lawrence Suenishi — Item 2 needs completion No. 40, Lloyd Tanaka — Item 1 needs completion Motion and vote: Ms. Lum moved to accept and file the approved disclosures, Ms. Nicholson seconded the motion, and all members present voted aye. 9. ANNOUNCEMENT The Chair announced the next monthly meeting as being on March 12, 2008, at 10:00 a.m., at the Department of Liquor Control's conference room at 101 Aupuni Street, Suite 230, Hilo. 45 10. ADJOURNMENT Motion and vote: Ms. Nicholson moved to adjourn, Ms. Lum seconded the motion, and all members present voted aye. The meeting adjourned at 1:40 p.m. Respectfully submitted: Mary E. rosson, Secretary 46