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HomeMy WebLinkAbout2008-09-03 Board of Ethics Minutes Regular SessionHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Wednesday, September 3, 2008 - 10:02 a.m. 101 Aupum Street, Suite 230 Hilo, Hawaii 96720 Present: John Dill, Chair Ann Lum, Vice Chair Marilyn Nicholson, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Crosson, Secretary for the Board Present at times: Jason Armstrong Lincoln S. T. Ashida, Corporation Counsel Tiffany Edwards Wayne Joseph Emily Naeole, Council Member Michael J. Udovic, Deputy Corporation Counsel Clayton Yugawa, Director of Data Systems Department 1. CALL TO ORDER The Chair called the meeting to order at 10:02 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS The Chair asked if there were any statements from the public, and there were none at this time. 3. APPROVAL OF MINUTES Minutes of the July 16, 2008, Regular Session. Motion and vote: Ms. Nicholson moved to accept and file the regular session minutes, Ms. Lum seconded the motion, and all members voted aye. Minutes of the July 16, 2008, Executive Session. Motion and vote: Ms. Lum moved to accept and file the executive session minutes, Ms. Nicholson seconded the motion, and all members voted aye. 4. COMMUNICATIONS a. Communication No. 2008- : Informal Advisory Opinion for Petition No. 2008 -9 from Councilmember Donald Ikeda. Motion and vote: Ms. Lum moved to accept for signature the Informal Advisory_ Opinion. Ms. Nicholson seconded the motion, and all members voted aye. The Chair signed the original. b. Communication No. 2008- : Informal Advisory Opinion for Petition No. 2008 -7 from Julie Oropallo. Motion and vote: Ms. Lum moved to accept for signature the Informal Advisory Opinion. Ms. Nicholson seconded the motion, and all members voted aye. The Chair signed the original. C. Communication No. 2008 -73: Barbara Hale 7/17/08 letter to Michael Udovic, Deputy Corporation Counsel, re Civil No. 08 -1 -0222. Motion and vote: Ms. Nicholson moved to accept and file the communication, Ms. Lum seconded the motion, and all members voted aye. 5. NEW BUSINESS a. Petition No. 2008 -81: Regarding Emily Naeole, alleging that she violated Code of Ethics Section 2- 83(a)(3), which states that all persons shall be treated in a courteous, fair and impartial manner. UDOVIC: Good morning, Mr. Chair. Ms. Naeole is present with counsel, Michael Udovic. CHAIR: Can you repeat yourself- UDOVIC: Michael Udovic, U- D- O- V -I -C, deputy corporation counsel. CHAIR: Have a seat. Who else regarding this petition is present? Can you introduce yourself, please, sir? YUGAWA: I'm Clayton Yugawa, Director of Data Systems, County ofHawai `i. CHAIR: Okay. And Ms. Naeole? NAEOLE: Aloha. CHAIR: Welcome, good morning. 1 Text in italics is verbatim. 2 NAEOLE: Morning. CHAIR: Anyone else? Okay. All right, Michael, obviously you're representing Ms. Naeole in this matter? UDOVIC: I am, thank you, and we've provided the members of the Board with a response by Ms. Naeole dated July 29, 2008. CHAIR: July 28th or 29t1' L UM: This letter. July 29th CHAIR: Okay. Why don't you start - -give us a background, your side of the story, what happened. UDOVIC: Well, my understanding of the incident was that Ms. Naeole, as you are aware, is a council member for the County of Hawai `i, and public hearings were held regarding bond issues with respect to the Kona Community Center. And a number of persons testified with respect to that, and there were differing opinions. At the time, Ms. Naeole did not support the bond issue, and either the next day or the day after, Ms. Naeole made a phone call to the petitioner, the substance of which is on a tape which is available for the Board to listen to, wherein she described her feelings regarding that. And I spoke to Ms. Naeole about, you know, what the purpose behind the phone call was, and she advised me that —on the second page of the letter —was to suggest that there are differing opinions among the various parties about these issues, and she respects the opinions of all parties, even though they may differ. And she just wanted to assure the party that that's what her position was. And the petitioner apparently felt that that was being disrespectful by Ms. Naeole, but that wasn't her intention, to cause any disrespect or discourtesy to the person at all, but just to advise them that they did have differing opinions and she in fact does respect it. And when you listen to the tape, and the tape is here, I understand, for the Board members to listen to, one of the important aspects of this is that she said she respects your mana `o about the civics center and all you guys need in Kona, and you know, tita, I feel now it's not a time, you know. And so what we're dealing with is the language that was used, cultural differences and sensitivities which, you know, some we may not be specifically attuned to. But it certainly wasn't Ms. Naeole's intention to cause any disrespect or discourtesy to any members of the public, especially to employees of the County of Hawai `i. But the tape is here, and you can listen to the tone of voice and how she said the words that she said, and, you know —she's just a local Puna girl who grew up there and talks like a Puna girl, you know. I mean —she's here, and you can ask her questions if you want. She'll answer the questions if you have any. L UM: I just have a question about —the phone call was to Lisa Nahoopii, right? And is she- UDOVIC: - -She's notpresent, I don't think. 3 YUGAWA: No, she's not. L UM: But the petitioner is Mr. Yugawa. YUGAWA: That's me. Lisa is my employee. LUM.- So she —the call was to Lisa or to you? YUGAWA: No, it was to Lisa. LUM: And Lisa was the one who testified at the hearing. YUGAWA: Yes. L UM.- Okay. CHAIR: Why don't we take this opportunity —we have the capability of playing the tape, right now? Okay, why don't we just play the tape, okay. SECRETARY.- I don't know how loud it's going to sound in here. LUM: Well, we can go over there and hear it. Do we need to come over there? SECRETARY.- Let's see how it sounds. TAPE: Aloha, Lisa, this is Councilmember Emily Naeole. You sound very arrogant and pushy, and 1—you know, I —you know, respect your mana `o, yeah, about the civics center and all you guys need in Kona, yeah, but —and then you said your family live in Kalapana. And you know, tita, I feel like right now it's not a time, you know The mana `o—to me, I rather help people that is suffering, going through hardship of life, health and safety, instead of cranking up a building. I mean, if we can make a cheaper building, I think that would be more appropriate. But I wanted you to share my mana `o to you, and I hope that doesn't bend you out of shape. Bye. CHAIR: Thanks, Mary. LUM: Thankyou. CHAIR: Ms. Naeole, now —is it true that you had requested these public hearings be held regarding the West Hawai `i Civic Center? NAEOLE: I think Donald Ikeda requested the public hearing, and I second, yeah. CHAIR: Okay. LUM: Okay. I have a problem with only the second sentence. I can understand that — no, I don't understand, but I have another question, too. But I have a problem with "you 2 sound very arrogant and pushy. " I don't think that's cultural. I don't think it belongs to any particular people. I think a lot of times when we leave messages, we wish we could say wait, wait, erase. But that's the danger of leaving messages. You can't take them back. Were you acquainted —Ms. Naeole, were you acquainted with Lisa Nahoopii before she testified- NAEOLE: - -No, I think knew her father, yeah, `cause I went to Pahoa School from kindergarten to twelfth grade. And that last name ringed a bell to me. L UM: Well, there area lot of Nahoopii 's- NAEOLE: Yeah. L UM: But she's not somebody that- NAEOLE: - -No, I never knew her, like, yeah. So you know, that was what was mentioned. But, so--I said even though she sounded like that, to me I understood her mana `o, yeah, and so that's why what followed, even though she was arrogant, and I said I understood her mana `o. LUM: You know, because you're a Hawaiian speaker, you certainly understand the levels of meaning of different words and how they have — different words have different meanings. NAEOLE: Right, right. L UM And I find that the word 'pushy, " I think it's tougher on a woman to be called pushy than a man. I think people don't use that word with men, and so I think that women tend to be a little more sensitive to that word. So I'm trying to look at it from Ms. Nahoopii 's point of view. If I picked up my phone and I heard that message, I think I would probably appreciate that you took the interest, but I would have a hard time getting past that sentence, even with the - -even with the understanding of the mana `o and what you say later on. And I wonder also that —at the end of your message, if you didn't kind of, when you say, "I hope it doesn't bend you out of shape, " if you weren't kind of sensitive to the fact that maybe you had been a little harsh. And you know, your feelings your feelings in you, something in you told you oh, wait a minute, maybe I was a little hard on this lady, because she has her right to speak at a public hearing. NAEOLE: These —if you heard what the testimony was like, and you don't have that ability to hear that, you know, to me —it was just the truth. I cannot help myself. I hate to lie, yeah. I have a problem with lying, that's why I'm a bad politician. I know I'm a bad politician because of my lying tactics. I don't like to lie. And when I normally talk, I always tell the truth. I cannot help it. And if I did you know, and the thing is, like I said, I second — Donald asked for it— either was me or Donald. But I remember, you know, after I heard all the people saying, and then I had to —when came time for the vote, I really when change my whole mana `o. Because I really wasn't going for the bond float at that time, yeah, because how I felt about issues that maybe would be better taken care of than the civics center. But after hearing Pahoa and the people that was there, and the W1 people that was in Hilo and Kona speaking, I changed my heart, and I did vote for the bond float. And my colleagues really wanted it, because they felt like the civics center was a big thing. The County —you know, the departments, because this thing was being worked on - -was ready to roll, but just needed the money. So I changed my whole heart, and I remember that day, when the Mayor came in to talk to us about the bond float, you know, I started to weep, hearing him talk. And God said, "Emily, bend on the other side. " And I did. So, you know —I have to put it on the table. I did. Everything you heard on there, I did say. And, you know, again I say I don't like to lie. I didn't do—I didn 't feel like I was doing anything mean. Maybe I said some words a little out of line, and you know, like my lawyer said, I was born and raised in Puna. I'm a tita, I cannot help it. Some words that I say might be a little bit not as professional as it should be, but— CHAIR: Ms. Naeole. NAEOLE: Yes. CHAIR: First I wanted —maybe I should have made it clear to everybody here, that number one, we're not judges, and we're not a jury, and this is not a court of law. This Board is made up of people in the community that have the interest of the people of our community, and so we want to do the right thing. And that being said, County officials, elected officials, and people in positions of influence and whatnot are held to a higher standard, whether we like it or not, with what we do and with what we say. It doesn't mean we're perfect, it doesn't mean we don't make mistakes, but we need to be aware of that fact and act accordingly. I have a question for Mr. Yugawa, and you can stay where you are, Mr. Yugawa, as long as everybody can hear. What prompted you filing this petition on behalf of Ms. Nahoopii? YUGAWA: Well, as Mike said, there was a hearing. Lisa Nahoopii is my employee in Kona. She lives and resides and works in Kona. And she knows the pitfalls of that —the existing offices over there. And she asked me if she could testify and I said yeah, it's fine, just don't get involved in the east -west rhetoric, and she gave me her testimony, and it looked really good. She stated the facts, that —the reasons for building the new West Hawai `i Center, the parking problem, the lack of customer service, the cramped quarters —they couldn't expand. So I told her go ahead and testify. Then she called me up and told me on Monday that she got this message. She was pretty upset about it. That's what prompted me. I did this for her, because I'm her employer. I'm her boss. CHAIR: Well, what confuses me is that she was obviously testifying as a private citizen, not as a County employee. And when it came time, she obviously felt bothered by the message that was left. You jumped right back in and on her behalf filed this petition, rather than her filing it. YUGAWA: Yes. I wanted to keep her out of this as much as possible. She works. Right now she's on jury duty. She can't come, but she had asked me to do this. CHAIR: Okay, one more other thing I want to make clear for everybody involved is that, in addition to not being attorneys or judges, we are strictly here to enforce and interpret CWI the County Code of Ethics, and particularly Section 2 -83. That doesn't mean other testimony and other surrounding circumstances can't be considered in our decision, but we need to make it clear that we're strictly adhering to what it says in our County Code of Ethics, which all of us have to follow. Before I continue, Ms. Edwards, did you want to say anything? ED WARDS: I just wanted to kind of listen so I could hear both perspectives before I made a comment, since I signed up later. I just want to express my support for Ms. Naeole, and I just wanted to say that one of the things about her that I absolutely love is her authenticity, the fact that she —first of all, this Ms. Lisa Nahoopii, she felt free enough to be able to come and testify and give her mana `o, and also, Ms. Naeole felt free exercising her first amendment right to share her mana `o. It was actually over the course of a weekend, so she had some time to probably digest what she was —what the testimony was and her impression of things. And just another perspective is just the rawness of Emily and the fact that she —to me, when I heard that message, it was just very genuine, and you could hear her wanting to try to explain the perspective of why she was against the issue that this woman was for. And the whole arrogant, pushy part — sometimes people may come across that way on the other side of council members. I've actually seen other council members, not her, in my capacity as a newspaper reporter — I've seen them be very rude to the public on the floor, in front of the public, and to me, what happened there is not even close to the way that I've seen council members conduct themselves in a public meeting. I actually testified on a rare occasion before the Council when I was a newspaper reporter, and one of the —the council members, who - -if I say which district that person represented, it would identify that person —but actually called me out for even taking a step out of the press box to come and testify and was very harsh and humiliated me on the floor. And actually, as a result of that - -the way the interaction was and how it made me feel such shame for coming and saying something - -it resulted in a complete Council overthrow of this person's position of power. So what I heard this morning is just authentic, and that's the beauty of this person. She is not polished at all, because she is from Opihikao. Yet at the same time, like —she just feels the need to say to this woman, like —kind of like woman -to- woman, I didn't agree with you but I do understand where you're coming from. And to me, I just heard a different recording. And knowing the way that council members have conducted themselves for everyone to see on Channel 52-1 mean, we could definitely have all the council members come before you guys. I mean, if I would have known that I could have filed a petition with you years ago, I would have. So I've seen worse, and I just want you to know that. Thank you. LUM: Thank you. NICHOLSON: Thank you. CHAIR: One thing— thanks for sharing, Ms. Edwards. You mentioned not wanting to discourage people from expressing themselves in the public eye when it comes to issues close to their heart and close to their community, but what concerns me is that if —and I hear your examples of other situations —but we need to focus on this particular situation, regardless of how other people may act. And one thing that I don 't want to do is encourage, or discourage, people from expressing themselves in front of the Council or 7 in other arenas where they have that right. And it is a fine line that we're walking, because Ms. Naeole also was expressing her opinions on what Ms. Nahoopii had to say. But we have a system set up to allow for people to express themselves, and regarding this case, what concerns me is that Ms. Naeole didn't express her opinions —or maybe she did — during the hearings, and rather took it upon herself to contact Ms. Nahoopii privately after the fact with what I feel is somewhat privileged information, her phone number and whatnot. And correct me if I'm wrong, but maybe Renee —I think those procedures have changed and they no longer require people giving testimony to give out their phone numbers and whatnot. SCHOEN: I believe you're correct, Mr. Chair, in that the procedure now is to just provide the name and where you are from when you will testify before Council. NAEOLE: I just wanted to say something. I didn't get her number from anybody in the clerk —I got it, she sent me an email to my office with her testimony, and on the bottom of the email had her phone number. So I didn't get the phone number from anywhere else. When I went back to work on Monday I was looking through my paperwork and I seen her email, and had the number on the bottom. And that's the only reason why I called, is because the email was on my desk, and she had the mana `o and she had her number on the bottom. L UM: So she sent you a record of her testimony? NAEOLE: Yeah. LUM: She's in your district? NAEOLE: No. L UM: No. NAEOLE: No, but a lot of people from all around the whole island, they send things to all us council members so we can see what their mana `o is, and that's the only reason why I had that number, or I wouldn't have called her if I didn't see that. L UM: Okay, thank you. NAEOLE: So I didn't go digging up something to try to make something. CHAIR: And obviously you know, I have respect for the aloha you have for your people and what you try to do, Ms. Naeole. I can't see any other example of how much heart goes out to your community in trying to do what is right. NAEOLE: Thank you. CHAIR: Oftentimes, when we try to do what is right, we end up- NAEOLE: - -We screw it up. CHAIR: Well, we end up hurting people's feelings. NAEOLE: I just wanted to say, you know, pertaining to her testimony that evening when she was in Kona and we were in Hilo, she specifically said that she works for the County —she mentioned that in her testimony, and she said she was there as a private citizen. So she wasn't working for the County as she was testifying. She was there on her own merits. So I definitely remember her saying that that night when she was testifying. So to see her boss stepping up to the plate, it's just like, to me —and I heard this mana `o, too, that he was the one that, you know, kind of maybe was bent out of shape— CHAIR: - -Well, let's not speculate, okay- NAEOLE: - -Yeah, yeah, let's not speculate, but that's what I heard that night, is that she said she works for the County in Kona, but she's not therefor the County. She's therefor her own person. CHAIR: Okay, now that being said, she obviously came and provided the testimony because of her personal feelings. What would you say was your motivation to contact her and share your feelings? Were you doing that as a private citizen, or were you doing that as- NAEOLE: - -I think I was doing that as a council lady, you know, because the thing is, I had these feelings about the Civic Center and I didn't think that this — because of the economy going downhill, I didn't think we had choke money to just be - -and you know, 55 million is a lot of money. So that's why I just wanted her to hear my end of the story, why I felt that way. And so that's why I explained to her about health and safety of the people and you know, different mana `o, that's where I stood. CHAIR: What prevented you from doing that while in the public hearing? NAEOLE: I not too sure, I not too sure. Like I said, if l never had that paper on my desk when I went back to work on Monday, and looking through my emails and, you know, ifI never see that I wouldn't have done it. But somehow it was on my desk, my secretary must have left it, and when I read through it I seen her number on the bottom of the paper. And that's why I did the call. NICHOLSON: May I ask? CHAIR: Yes, please. NICHOLSON: So the phone number that was on the document, that was her home phone number, not her work number? NAEOLE: I'm not too sure. NICHOLSON: So you don't know whether you called an office- 0 NAEOLE: - -I'm not too sure it was an office, but had a number on the bottom, that's how I knew where to call. NICHOLSON: Thank you. NAEOLE: You're welcome. CHAIR: Well, Ms. Naeole, you know, I don't want to discourage you from doing what you feel is right. But at the same time, like I said, people in positions of influence or whatnot are held to a higher standard of actions. And you yourself had just said that you contacted her outside of the public hearing in the course of your duties as a council woman, and Section 2 -83 of the Ethics Code specifically states that officers and employees of the County, while discharging their duties and dealing with the public, shall adhere to the following precepts. All persons shall be treated in a courteous, fair, and impartial manner. We can sit here all day and argue whether Ms. Nahoopii was too sensitive — obviously, there are a lot of people out there that take things in the wrong way than they're intended to, but also there is a level of tactfulness that is required by persons in your position, and it needs to be adhered to, and it needs to be respected. So as much as I don't want to discourage you from stating your feelings and doing what you feel is right and what is pono, my feeling is that you treated Ms. Nahoopii a little bit unfairly, and whether we like it or not, that's the way it is. And whether Mr. Yugawa was acting out of— whatever his motivation was —I respect the fact that he was looking out for his employee, and if she was offended and if she was oversensitive or whatnot is beside the point. He was just trying to protect her and doing what he feels is right. LUM: I'm ready to make a motion. CHAIR: Okay. L UM: I regret doing it, but I move that the Board of Ethics find Ms. Naeole violated the Hawai `i County Code of Ethics, Section 2- 83(a)(3), all persons shall be treated in a courteous, fair, and impartial manner, in that in her telephone message to Ms. Nahoopii on June 18, 2008, in the statement, "You sound very arrogant and pushy, " in that, was not treating Ms. Nahoopii courteously. CHAIR: Yes? LUM: I have more I could put in it. CHAIR: Well, Mary, could you read back the motion to us, if possible. LUM: I have it sort of like —do you want me to read it again? SECRETARY: I think I got it. I move that the Board of Ethics find Ms. Naeole violated the Hawai `i County Code, Section 2- 83(a)(3), all persons shall be treated in a courteous, fair, and impartial manner, in her telephone message to Ms. Nahoopii on June 18, in the statement, "You sound very arrogant and pushy, " that was not treating her courteously. 10 CHAIR: Ms. Lum, could I ask that we- LUM: - -If we have a second, then we can discuss. CHAIR: Okay. Do we have a second? NICHOLSON: I'll second for discussion. CHAIR: Okay. Could I request that you might consider taking out a part of the —in the message, "You sound very arrogant and pushy. " LUM: Take the message out of— CHAIR: - -No, take that part of the motion out. LUM: Take that wording out? CHAIR: Yeah. LUM: Okay, sure. So if you withdraw your second, and I'll amend it. Is that how we do it? CHAIR: Well, my goal here is to stick to what is stated in the Code of Ethics. LUM: Okay. So you would like it to read, treated in a courteous, fair, and impartial manner in her telephone message, and just take out this part? CHAIR: Yeah- LUM: --Takeout the last part— CHAIR: - -it's reference to the telephone message. LUM: I only put that in because I thought maybe we needed to have specifically what we're dealing with. CHAIR: I don't think it's necessary. L UM: Okay. Well, I'd rather have as little bit of it in there as possible. CHAIR: Okay. I'm ready to amend it. Do we have to take the second back and then amend it? SCHOEN: I think that's fine. LUM: Just amend it. NICHOLSON Just —fine to what? 11 SCHOEN You took back your second amendment- NICHOLSON: -- Yeah -- LUM: - -Okay- SCHOEN: - -to the motion- LUM: - -So the amended —it's the same, it just ends after the June 18, 2008. CHAIR: Okay. NICHOLSON: Can we hear that motion again, then? LUM: Okay. I move the —it's hard to read my scribbles. I move the Board of Ethics find Ms. Emily Naeole violated the Hawai `i County Code of Ethics, Section 2- 83(a)(3), I think it's —which reads all persons shall be treated in a courteous, fair, and impartial manner, in her telephone message to Ms. Lisa Nahoopii on June 18, 2008. CHAIR: With regards to her phone message. L UM: In her telephone message? SECRETARY: She said in her telephone— L UM: - -I have in her telephone— CHAIR: -- Okay -- LUM: -- impartial manner, in her telephone message. CHAIR: Okay. So we have a standing second? NICHOLSON For discussion, yes. LUM: For discussion, okay. CHAIR: Discussion--you have something to discuss? NICHOLSON: I have some concerns about this, because —I have some concerns about taking out the words "very arrogant and pushy, " because other than that, that is a little —those are the only words that bother me, and I can understand —it seems like a pretty minor issue to me. L UM: The whole thing? 12 NICHOLSON The whole thing seems minor now that I've heard the different sides of it. And if we find this in violation, I guess I'm thinking of the larger picture —to what extent are we really restricting free dialog with council members. And on the other hand then, I'm thinking, right, it really was not fair, courteous, and impartial, which is why I did support the motion. CHAIR: I really don't think we'd be sitting here today if Councilwoman Naeole said these exact same words in the public hearing for the West Hawai `i Civic Center. I think —I think by doing it outside of the public is when the courteousness becomes jeopardized, and— LUM: - -I think that that's what bothers me, because if it were in the heat of the moment, as it were, in the back and forth, then —when you have a back and forth conversation, you can tamp things down and ramp them up and it goes back and forth, but when it's a message, you have it there and you can't respond, and the person leaving the message can't respond, you know —it doesn't work very well, I think. And I keep thinking ifI listen to a message, and I'd be impressed if my councilmember called me, or councilmember called me —but then ifI heard a message that really kind of gets into you, arrogant and pushy is pretty strong stuff. And I'm sure Mrs. Naeole wishes that that sentence were not in her phone call. Once it's out there, it's out there. So I do like to have the words in it, because I also think the rest of the message is okay. CHAIR: You'd like to have the— L UM: - -I would like to have the original way. I prefer it the way I originally stated it, because I think it limits what we're talking about to very specific kind of language and doesn't really —to me it doesn't really say, well wait, you can't call her and talk about —I don't agree with you and I wish you would do this and that, but I was specific in the motion because I think it's just that part that is difficult. CHAIR: Okay. NICHOLSON: And —I mean, the Code of Ethics doesn't really apply to whether you're in a council meeting or a public hearing or talking to someone individually, so I'm a little concerned that we are —that we're making a distinction that this didn't happen in public, maybe in the heat of a discussion versus in private, because it doesn't really matter. It is a public official acting in their capacity, so- LUM: - -Ms. Edwards should have filed a petition. CHAIR: Well, I don't think we're specifying that in our motion. The reason why I brought it up is —I think the way words get conveyed in certain environments can come off different ways. But- LUM: So you're saying in the public record, as an opinion, that it might be misinterpreted? 13 CHAIR: Yeah, I think you touched on it. A phone message is a one -way conversation, and once it's received by the person that it's intended to, it gets interpreted a certain way rather than in a surrounding like this. LUM: So in —so John, let me understand what you're saying, is —if it's in this official motion, you feel it takes on a different strength? CHAIR: Well, I don't think we should be —in our motion, I don't think we should be specifying, since it was in a private conversation, it therefore it becomes a violation. I think Marilyn hit it on the nose, it's a violation or it's not a violation, no matter where it is. The reason why I brought it up is just because that's- LUM: - -that is her telephone message. CHAIR: And I don't want to blow this out to something bigger than it's not. Ms. Naeole is a busy woman, and she's —she really is trying to do what's best for her community, and I don't want to hamper her with our opinions, and I don't want to at the same token hamper a private citizen from feeling that they shouldn't testify because they're worried about getting repercussions. Can you read back the motion? I'm sorry, Mary. LUM: As it's standing now, okay I'll- SECRETARY: The first one that she made, you mean? LUM: No, the one we have— CHAIR: -- Whatever is- NICHOLSON: - -The current one. LUM: The current one is the one without the language. SECRETARY: I can't even find it now. L UM: I have it, if you need me to. It ends after June 18`h. SECRETARY: Okay. I move that the Board find Ms. Naeole violated the Hawai `i County Code of Ethics, Section 2- 83(a)(3), which reads all persons shall be treated in a courteous, fair, and impartial manner, in her telephone message to Ms. Nahoopii on June 18, 2008. CHAIR: And we have a standing second, right, from- SCHOEN: Um hmm. CHAIR: Okay. Any other comments before we vote? UDOVIC: Comments from us? 14 CHAIR: Sure. UDOVIC: I think you're going down a really dangerous path here, quite frankly, when you're starting to regulate communications between council members and their constituents. Interesting to note that Ms. Nahoopii did not even file this petition, it was someone else on her behalf. And I don't even know if that's— L UM: - -It is. A third party petition -- UDOVIC: --you know, and I think you're going down a slippery slope, quite frankly. LUM: Well, it is in our —it is in our Code, so maybe the Code, you know, maybe the Code is not specific enough, and that's all we can go by is what we have in our Code of Ethics. CHAIR: We're not trying to set precedence here for future cases, and a lot of stuff that comes before us can be interpreted many different ways, but we do, when petitioned — regardless by whom —we do have to take into consideration the exact circumstances of the case, and we do have to rule. Personally, I don't feel council members or the mayor, or anybody else who's elected, should be calling people and expressing their opinions, right or wrong, on anything in an unfair or uncourteous manner. Like I said, we're not trying to set precedence, but this is just —it's not acceptable, it really isn't. Ms. Naeole? NAEOLE: Yeah. I just wanted to say, even though I said that first statement, you know- - because we all sat there and listened to the testimony. And so even though, you know, that's what it was projected out when the testimony was given —I said even though she sounded like that, but I understood where she was coming from. When you want something badly, you going try your best to put out your best performance. And so I didn 't feel like I was calling her `cause I was trying to make some trouble. I really didn't. That's why when I heard that something was filed against me, I was really shocked, yeah, because it wasn't my intention. And sometimes I do stuff —like you said, I get so much aloha, I don't know sometimes where —how to set my bearings. And I really was sympathetic to this girl. Like I said, the name is familiar to me because I went to school with some Nahoopii's when I was in Pahoa School in the 60's and the 70's. And so when —and then she said she had relatives in Kalapana, and I was like, oh, must know these people, because I was born in Pahoa, raised in Opihikao. I mean, I'm 51 years old, this month I'm going to be 52. So I must know these people. So when I —you know, and if I didn't have that —it was an email sent to my office, and so before the hearing I never see `um, and the next Monday when I came back, that's when I seen it on my desk, and that's why I gave her that call. My intention is never evil. I don't think I —you know, I don't have evil intentions. My intentions always clear and pono, and it's because I have some kind of connection with some kind higher power you know, and so that's why I really didn't think I was doing anything to try to harm his worker or, you know, put something out bad. It was just a thought, and some people thought that's how she sounded like at the hearing. But I said I understand where you're coming from. The mana `o means your thought. I understand your thought. And so I feel whatever you guys going come out with today, it's fine. If I screwed up, I got to deal with it. And it's, you 15 know, eighteen days away from primary. And you know, so much things been going down in the paper for me. Tribune- Herald is not one of my friends, you know what I mean. So I can see them ready to slam some things for tomorrow morning. But I just wanted to put that out, you know. In reality, when I did this call, I wasn't meaning to hurt anybody. CHAIR: Yes, Mr. Yugawa? YUGAWA: IfI could say something real quick. In Lisa's defense, she was very hurt when she got this message. I think she was very hurt to bring it to me, to bring it to my attention. What it boils down to —and I grew upon this island, I was born and raised on this island —and what it comes down to is respect. You respect what other people say. And you don't—you know, you ask for their opinion, they give you their opinion, that should be it. You shouldn't go back and call them arrogant and pushy, and you know if— you know, in Puna, ifI called you pushy and arrogant, you'd be really upset, too. CHAIR: Well, we're speculating again here, Mr. Yugawa- YUGAWA: - -Well, yeah— CHAIR: -- getting back to what- LUM: - -We have a motion— CHAIR: - -Yeah, we have a motion we need to vote on, but getting back to us going down a slippery slope, we're not here to interpret the constitution or to rule on the protections of free speech. We're just looking at this case exactly and how it relates to the Code of Ethics for officers and employees. Board members, do you have any other comments before we vote? (Silence.) And like I said earlier, Ms. Naeole, regardless of what we do here, I wish you the best and I do respect the aloha that you have for your community, and I hope that we don't hamper you in any way of trying to do what is best for your constituents. Okay, with that being said, if we can vote on the motion on the floor right now. Do you need it to be re -read? NICHOLSON: Nuh uh. CHAIR: Okay, all in favor say aye. L UM: Aye. CHAIR: Aye. Opposed? NICHOLSON: Aye. CHAIR: Okay. LUM: Did you say aye or no? 16 NICHOLSON: I'm opposed. CHAIR: Opposed, okay. Okay, Ms. Naeole, thank you for taking your time out of your busy schedule. NAEOLE: Thank you, mahalo. CHAIR: Aloha. Okay, we can move down to New Business, Item Sb, review of Gift Disclosure Statements received from Councilmembers Brenda Ford, Emily Naeole, K. Angel Pilago, and J Yoshimoto. b. Review of Gift Disclosure Statements received from Councilmembers Brenda Ford, Emily Naeole, K. Angel Pilago, and J Yoshimoto. The three gift disclosures were reviewed. Motion and vote: Ms. Lum moved to accept and file the gift disclosures. Ms. Nicholson seconded the motion, and all members voted aye. 6. UNFINISHED BUSINESS a. Report from counsel on an amendment to Section 2 -85(b) of the Hawaii County Code (the Ethics Code) regarding the prohibition of contracting with former employees and retirees. The Board members discussed how the wording of this section of the Code did not make sense. Ms. Schoen said that the intention of it is to prohibit the County from entering into a contract with a person or business that is assisted by a former County employee if that person, while a County employee or officer, had anything to do with the subject of the contract, and was an employee or officer for the preceding two years. Ms. Schoen explained that she looked for a similar section in the codes of the other counties without success. Her interpretation is that the other counties don't have it because the same subject is covered under the post - employment section of the Ethics Code. - Ms. Lum remarked that Section 2 -85(b) did not make sense regardless of whether the missing "is" was there or not. Ms. Schoen said that the Board did not need to affirmatively do something about the wording. The matter came up because Councilmember Ford had questioned the conflicting nature of the two provisions when the Council discussed the issue of whether or not the County, may hire former employees. Section 2 -85 seems to say the County cannot, and Section 2 -91 seems to say it can. The Council mentioned the conflicting wording to Lincoln Ashida. 17 Ms. Nicholson asked if the Board members were the appropriate ones to reword the Ethics Code, and Ms. Schoen explained that the Board is empowered to make recommendations to the Council for the Council to pass or not pass. Ms. Nicholson asked if this issue could be continued on the next agenda and requested that the questionable sections be sent to them, with proposals for revision, all on one sheet to make it easier to read and discuss. The Chair agreed and moved to the next item on the agenda. b. Discussion on amendments to the Board's Rules of Practice and Procedure regarding the imposition of administrative fines pursuant to Ordinance 08- 57. Ms. Schoen said that at the Board's prior meeting, she was asked to find out how the State Ethics commission updated its rules regarding this issue. Unfortunately, the State did not yet do so. She spoke to the Commission, and it has so far never levied a fine for a violation of the code and has not adopted rules to impose fines. They indicated they would probably follow the rules set out in Chapter 91 of the Hawaii Revised Statutes, regarding giving proper notice and allowing for a response, similar to the procedures for a contested case hearing. Due process requires a procedure of this type whenever a fine or penalty is to be imposed. Ms. Schoen said that the State Ethics Commission handles cases differently from the County Board of Ethics. They receive calls about violations, and then try to negotiate the matter with the individual to either pay back the amount at issue or provide restitution for the misconduct. The State has never had the opportunity to enforce the provision and instead tries to work out everything informally. Ms. Schoen said she could draft some rules herself and give it to the Board for review. The rules would have to follow the ordinance, which mandates meeting the requirements of Chapter 91 and Section 46 of the Hawaii Revised Statutes. Ms. Lum said they would also need guidelines to determine under what circumstances they would use their power to fine, since that was not specified in the ordinance. Ms. Schoen said she tried to look up the minutes when the Council discussed this matter, but they were not available. It was also not clear whether a fine would come after the formal opinion stage of a petition, and she needed to research that. The Board members agreed they wanted to move ahead on this matter, since they were granted the power to fine, and Ms. Lum said she would not want that ability at the informal level, but as a last resort for an important issue. The Chair asked if the Board's rules were subject to the approval of the Council. Ms. Schoen said when they want to propose rule changes, it needs to be published in the newspaper and the public invited to the meeting. The matter was continued to the next agenda. . C. Ongoing discussion on the Sunshine Law. Ms. Schoen had nothing to report on the Sunshine Law. The Chair called for a five- minute recess. The Board recessed from 11:15 a.m. to 11:20 a.m., at which time the Chair called the meeting back to order. Motion and vote: Ms. Lum moved to enter into Executive Session to review confidential financial disclosures. Ms. Nicholson seconded the vote, and all members voted aye. Executive Session was entered at 11:21 a.m. Minutes are separate. Regular Session was re- entered at 11:32 a.m. 7. EXECUTIVE SESSION Motion and vote: Ms. Lum moved to accept and file the approved financial disclosures, Ms. Nicholson seconded the motion, and all members voted aye. (The approved disclosures were numbered on the agenda as 2 to 11, and 13. The two unapproved disclosures were numbered 1 and 12. The secretary was instructed to obtain further information on them.) 8. ANNOUNCEMENTS The Chair announced the next meeting of October 8, 2008, at 10:00 a.m.at the Department of Liquor Control's conference room in Hilo. 9. ADJOURNMENT Motion and vote: Ms. Lum moved to adjourn, Ms. Nicholson seconded the motion, and all members voted aye. The meeting adjourned at 11:34 a.m. Respectfully submitted: irn � Mary E. dosson, Secretary 19