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HomeMy WebLinkAbout2008-10-08 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Wednesday, October 8, 2008 - 10:00 a.m. 101 Aupuni Street, Suite 230 Hilo, Hawaii 96720 Present: John E. K. Dill, Chair Ann Lum, Vice Chair Marilyn Nicholson, Member Diane Gentry, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Crosson, Secretary for the Board Present at times: Bobby Perreira, Michael J. Udovic, Darryl Oliveira, Jack Pacleb, Lincoln Ashida, Martha Rodillas, and an unknown male 1. CALL TO ORDER The Chair called the meeting to order at 10:00 a.m. and welcomed Diane Gentry as a new member of the Board. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. Ms. Lum stated that when the Board heard Petition No. 2008 -9, it should also consider Section 2 -91.5 of the Ethics Code regarding the reporting of gifts. Ms. Schoen suggested they address her concern when they got to the petition in New Business. 3. APPROVAL OF MINUTES Minutes of the September 3, 2008, Regular Session. Motion and Vote: Ms. Nicholson moved to accept and file the Regular Session minutes of September 3, 2008. Ms. Lum seconded the motion, and all members voted aye. Minutes of the September 3, 2008, Executive Session. Motion and Vote: Ms. Gentry moved to accept and file the Executive Session minutes of September 3, 2008. Ms. Lum seconded the motion, and all members voted aye. 4. COMMUNICATIONS a. Communication No. 2008 -_: Informal Advisory Opinion for Petition No. 2008 -8 regarding Councilmember Emily Naeole. Motion and vote: Ms. Lum moved to accept the opinion for signature, Ms. Nicholson seconded the motion, and all members voted aye. The Chair signed off on the original Informal Advisory Opinion. 5. NEW BUSINESS a. Petition No. 2008 -9: Regarding Fire Inspector Bobby Perreira, alleging that he violated Sections 2 -83 (fair treatment) and 2 -84 (conflicts of interest) of the Code of Ethics. LUM: At this point I would like to add in Section 2 -91.4 onto that. CHAIR: Okay. Do we need a motion for that? LUM: We could move— CHAIR: - -Okay, clarify that you want to add— L UM: - -It seemed to me that it would be appropriate to consider that in this whole hearing, so I move that we add that into the petition. It's 2 -91.5 on gifts. CHAIR: Okay, just to clarify that the petitioner, Ivan Takamoto, did not reference that section of the Code of Ethics in his petition. He specifically referenced Section 2 -83 and 2 -84. Since we are discussing what this petition applies to, 1—well, before we begin, I'd like to disclose that I do know Mr. Perreira from past projects that I worked on up at the Hilo Hospital. We did two projects, one at the veterans' home and one at the emergency room, and at some point during that project we did need an inspection and we also needed an opinion on some code issues. I think the extent of my communication with him was possibly a phone call or two and maybe an email or a letter, but there is nothing outstanding for that project, and I feel I can kind of preside over these issues without any kind of bias or undue influence. So I have no issues whatsoever with that. Do you guys have any comments? L UM: No. NICHOLSON: No. CHAIR: Okay, so continuing on— L UM: - -Was that a motion, that we add that in, or I'm just doing it? 2 GENTRY: You proposed a motion, there wasn't a second. SCHOEN: Mr. Chair, your Board rules do not provide for this particular situation. CHAIR: Yeah. SCHOEN: I believe Rule 4.7 is a provision which states that any time a petition is filed, the respondent should receive notice of the petition and —the idea behind that is so that the respondent has an opportunity to know what he or she is charged with and then can prepare. In this situation, Ms. Lum is proposing that an additional section be added on to the petition, and so—I believe counsel is here, and maybe he can address the Board as to whether or not Mr. Perreira or Mr. Udovic is prepared to defend that section as well. UDOVIC: Good morning, members of the Board. My name is Michael Udovic, Deputy Corporation Counsel for the County of Hawai `i, here today representing Mr. Perreira, who is also present with me. We want to get this thing finished, quite frankly. It's our position that there's no merit to this petition, but I do think that in fundamental fairness and procedural due process requires that any matter which is being alleged with respect to Mr. Perreira, that he receives advance notice of that. We'd be very happy to proceed with the petition under 2 -83 and 2 -84 today, and that may quite frankly resolve the issue that Ms. Lum raises with respect to 2 -91.4 as well. There may not be any need, but I just don't think it's fundamentally fair for us to proceed with matters that we haven't been advised of. CHAIR: I agree with you, and I think that we need to try and stick to what has been referenced specifically on the petition. If you're okay with that, if we do uncover other items— L UM: - -We can— CHAIR: - -that warrant additional inquiry, then we can do that at that time. L UM: Okay. CHAIR: Since we are on the subject of this petition and what sections have been referenced, I have a problem with Section 2 -84 that the petitioner referenced. I- UDOVIC: - -That was going to be my next motion, as well— CHAIR: - -Okay. UDOVIC: I don't see any evidence that there's any allegation of a conflict of interest at all, in any of the complaints which were made by Mr. Takamoto. CHAIR. I share that same view. Board, do you have any comments? I think we need to try and focus on Section 2 -83 specifically, and I think that that's what this is all about, really, and 2 -84 is kind of a gray area that's not relevant to what the allegations are made of L UM: Mr. Perreira does not have any financial interest in that, in – UDOVIC: Not at all— L UM: - -Okay. UDOVIC: Not at all— L UM: - -Just to be clear. UDOVIC: No, I think you can ask him, if you wish, but I don't think there's -- L UM: - -No, I- UDOVIC: - -I mean— L UM: - -I'm just trying to see how that would apply, but I can 't find any way that it applies. UDOVIC: No, I didn't see any grounds for a conflict of interest provision. LUM: Not his cousin or anything, right. CHAIR: Okay, then why don't we, unless the Board has- UDOVIC: - -I would move to strike the allegation of 2 -84, as there just doesn't seem to be any merit to it -- unless you want to hear it, and make that decision at the end of the hearing, if we do have a hearing. CHAIR: I think that'd be the better route to take, so let's just keep it therefor now, but with the understanding that we're going to be focusing on 2 -83. Before we continue on and get some testimony from you and - -as the others here I just want to reiterate the fact that we are here as volunteers from the community, serving for the community. We're in no way attorneys, judges, a jury, and we are simply answering petitions from the public, looking into ethical, or possible ethical, violations by officers, elected officials, and employees of the County. We just want to do what's best for the County and what is right and what is pono, and so —that being said, Mr. Udovic— Udovic, right? UDOVIC: Yes. Yes, sir. CHAIR: Okay. Why don't you and Mr. Perreira —and I just also want to point out that the petitioner is not present today, nor will he be, so we'll start with you guys. Give us the background of the relationship and your take on what happened. 0 UDOVIC: Well, I —first of all, I'd like to make a motion to dismiss this proceeding. If Mr. Takamoto doesn 't seem fit to be present to present any evidence to the Board, I don't think that, quite frankly, his letter —it's not signed under penalty of perjury —can be considered for any purpose whatsoever with respect to this petition. CHAIR: If it's in my power, I'd like to deny that motion, but the Board is- LUM: - -I think at other times we've accepted telephone, we have accepted written, and I don't think this is different. There have been other cases, times, when we had people that are unable to be here but they have submitted paperwork, and I think that we should go ahead with it. GENTRY: I agree. NICHOLSON: I agree. CHAIR: Okay. UDOVIC: Thank you. Keeping in mind that this is an issue which deals with personnel matters, and with respect to personnel matters we believe it's Mr. Perreira's right to have these matters heard in private, confidentially and in executive session. Mr. Perreira, however, is willing to waive any right he has to privacy with respect to these issues. There may come sometimes when you're going to be asking specific questions regarding personnel issues, which there may be some rights to privacy to, and we'll object at the appropriate time if it becomes necessary. But basically we wish to proceed today with the petition. Mr. Perreira denies emphatically any of the allegations which have been promulgated against him and is here to offer or ask any questions you may have with respect to any of these matters, quite frankly. LUM: Do we know what this is? (holding up a page of the petition) CHAIR: I think that's a phone, a phone, Mr. Takamoto's phone. Mr. Perreira, when did you start looking into fire issues at Uncle Mikey's? PERREIRA: Well, I have a letter dated from 2006. I became afire inspector July of 2006, but prior to that I was working as a TA inspector from month to month, depending on how the rotations went. CHAIR: TA is? PERREIRA: TA— temporary assigned, see how I like the job. And so at that time, I would go out with other, the other fire inspector, and made occasional visits at night. And I have a letter dated March 1, 2006, from our fire chief to Mr. Keoki Kai, manager and owner of Uncle Mikey's, and the letter states that recent reports and complaints regarding alleged violations of the occupancy code, as well as possible violation of the uniform fire code requirements— basically letting him know that the Fire Department will be coming out to make routine inspections of his premises because of these complaints and violations. And so we've been working with them for well over two years. UDOVIC: I might just ask, why is it critical for you to inspect— especially night clubs and things? PERREIRA: The main thing is safety of the community, safety of the people, that's the main purpose for fire inspections. CHAIR: On your initial visit based on the complaints —I guess the complaints came from the public, that kind of initiated your guys' action? PERREIRA: In March 1, 2006, I wasn't part of the inspection bureau, and so that answer might be best from the fire chief. CHAIR: Okay, on your first visit out there, though, did you find any violations, or what was the nature- PERREIRA: My first visit, I was a TA inspector, and I was accompanied by Fire Inspector Alan Yagi, who has retired since then. And I was very inexperienced. I knew very little about the inspection side, but basically we went out to about four different establishments, and one of them being Uncle Mikey's, and we're just checking on the occupancy load, the amount ofpeople there. And that was our whole purpose. We didn't do a full inspection of the premises, we just made the management aware that we were going to be there conducting counts. And a lot of times, those counts were requested by the Liquor Control, because we do the counting and they do the enforcing of violations. They write them up for their violations. UDOVIC: Maybe you can explain to members of the commission how Liquor works with you. LUM: I was just going to ask that. So you find — you're doing the counting, and then you report it —that kind of thing —to the Liquor Commission? PERREIRA: Yes. In the past, what they do is— they're working at night almost all the time. They go to different nightclubs and bars, and they're checking there things that they need to check, and occasionally they would see that it was over - crowded or felt that it was over - crowded, and so they would contact us, but they wouldn't contact us until, you know, the next business day. And so there came a point where our relationship — work relationship with Liquor became more open, and so they would contact us prior to events, and we would go out to those events, scheduled overtime days, and worked and made sure that fire safety concerns, life you know, building safety concerns, and occupancy load was kept in an appropriate - CHAIR: When was the first time you met Mr. Takamoto? G PERREIRA: That's a pretty rough question. Maybe, let me see, this was —it was definitely in 2006, and I want to say May or June of 2006. CHAIR: What was the nature of that meeting —it was through one of your inspections, that- PERREIRA: I believe it was at that first inspection or work that I did with former inspector Alan Yagi, that night we met. He was the manager for a long time there, Ivan was, and so when we went there I met him for the first time. CHAIR: Okay. L UM: I have a question. CHAIR: Yeah? LUM: Just to understand the procedure, when you do fire inspections, I assume it's an on- -every place at some point gets afire inspection? Or, I mean, is it like —how does it work? I have a place, I have a public restaurant or club or something- PERREIRA: -- There's a need— L UM: - -and I've passed the planning board, the Liquor Commission, I've opened now — what happens? PERREIRA: Well, prior to you opening for —once you apply for a liquor inspection, the Fire Department is part of that inspection. L UM: Okay. PERREIRA: And so we'd conduct an initial inspection. And then annually— L UM: -- Annually, okay- PERREIRA: - -we'd conduct inspections, and —you know, unfortunately, with the manpower that we have in our bureau, we don't get to go to everywhere. A lot of times we're responding to complaints from the public. LUM: Okay. And the next question would be that —once you do like an annual inspection, and let's say you find some violations I'm not talking like no step on the stairway and you've got to close them down right now, but I mean, just something, the railing's a little loose, needs some braces, that kind of thing. Do you then give them time or something to do something about this, and then do you reinspect —do they know when you're reinspecting? I just need to understand that. PERREIRA: Yeah, when we conduct an initial inspection, we go through the building and we try to make sure we do a thorough job. And we give them time, depending on the 7 severity of the violation — certain things need to be corrected sooner. A blocked exit door needs to be corrected immediately. Exit doors that aren't working, we need to correct them obviously sooner. Broken exit lights, we want —a lot of times, those things, they seem to be really minor, but if the lights go out, and the light doesn't work, nobody knows how to get out. Everybody's habit is to go to the front door where they came in from. So if everybody's going through the front door, then obviously you're going to have a stampede there, and then you're going to have a blocked exit, and people get trapped. LUM: Yeah, we've all read those- PERREIRA: - -So we try to be fair, and we give them some time. And in other occasions, we need to be more strict and get things done quicker. In this occasion, I did an inspection, a formal inspection, in April 2007, I believe it is. I have all my records here. But —and I actually sent this inspection, because I was having trouble with Ivan responding to my request on fixing things, I sent this via certified mail, and it was dated April 26, 2007. And that's really my first formal inspection of actually walking through with him during the day, not when they're open, and doing an inspection of his property. The other inspections were done at night, while they were open, walking through to make sure the doors were open, making sure the exits aren't blocked, making sure that the stairways aren't cluttered with items —which we found. I have reports of all of that. But in April of 2007, I conducted this. I went back numerous times between then and did another inspection, I believe in August, tried to give them some time. All this time we'd been going there, trying to work with them— L UM: - -You went in between- PERREIRA: - -Yes, in between- LUM: - -But not officially- PERREIRA: -- Officially, because I'm on duty- LUM: - -Okay- PERREIRA: - -at night. This hasn't been addressed, this hasn't been addressed. They did address some of the electrical concerns, and I noted that in one of my reports, and it wasn't until October of 2007 that we gave them an official you need to fix this, or else we need to shut down your establishment. And that was done after talking with my battalion chief, having a meeting with the owner and the manager previous in August, and working with our fire chief, because unfortunately fortunately, I'm not the one that shuts down the business. We have to go through the chain of command, and we work with our fire chief, and we try to work with the people first. And if the infractions are large enough, we need to think of the safety of the people. CHAIR: So you were having a kind of a slow response from them- PERREIRA: - -Very slow response, and we also brought in the building inspector —head building inspector and head electrical inspector, because I felt that if we're going to do something this drastic, we need to make sure that we get everybody on the same page. And they —they made some statements, the building inspector made some statements, saying that if it was him, he would shut this place down today, you know, and when they say that, it all throws it all on us now. The liability lies on the Fire Department. If we don't do something and something happens, our County is essentially liable. LUM: So you— obviously, that's what I was going to ask —it's not just you, there's all these other people that come into that total picture. PERREIRA: Yes. CHAIR: Okay. Marilyn? NICHOLSON So when you do an inspection, do you write up what needs to be fixed and then give that to them, saying how long they have to correct something? Is it all written, or is it oral, or what is the method of conveying? PERREIRA: The formal inspection that I conducted in April was written. It's on a sheet, and it doesn't have a specific time when we're coming back, but it does say to correct — please correct the above - described deficiencies forthwith. Upon completion of corrections, call the fire inspector at —and it states our phone number for Hilo, and our phone number for Kona. And then it, you know, it's who it's addressed to— whether it's recommendations or whether it's ordered, yeah, and so. NICHOLSON: That was my next question, is so—who was this addressed to? So who got the notice of the things that needed to be fixed? PERREIRA: The manager, Ivan Takamoto. Unfortunately, we didn't have much contact with the owner. He didn't seem to be very involved in— CHAIR: - -the day -to -day operations? PERREIRA: The day -to -day operations. CHAIR: Go ahead, Diane. GENTRY: Do you have anymore questions? NICHOLSON: So would then the owner even have been aware of what needed to be fixed, or you are dealing totally with Mr. Takamoto? PERREIRA: I was hoping that Mr. Takamoto would be letting the owner know. You know, unfortunately, I didn't have anyphone number, contact, with the owner. But in August of 2007, we sat down — myself, Battalion Chief Pacleb, the owner, Keoki Kai, and Ivan Takamoto —and we had a meeting about these concerns, because it was looking like 9 they weren't doing anything. And so we called a meeting, and at that meeting they discussed some things about finances and whatnot, and I have a report of that also. And we let him know what needs to be addressed, what needs to be corrected and why, and we walked around and we showed them. And you know, August to October, when they got their notice, nothing was done. They made a little effort, but not the effort needed for what we were looking at —the concerns that we were looking at. NICHOLSON So Mr. Takamoto seems to feel like he didn't necessarily know what needed to be addressed- PERREIRA: -- That's what he's claiming- NICHOLSON: - -at least, that's the impression I get from his documents- PERREIRA: Yes. NICHOLSON: So how could that be, that he was unclear what needed to be repaired or addressed, if all this is done in writing? PERREIRA: He knew exactly what he needed to do. GENTRY: So when you went to—at the time of your first inspection, did you actually issue —are the documents an actual citation of violation, or is it just a notice to clean it up, and if you don't clean it up or fix it up, then you will be cited? What's the procedure there? PERREIRA: It's afire inspection. It's just a report. GENTRY- Oh, it's a report. PERREIRA: It does have recommendations and orders— GENTRY- - -Okay- PERREIRA: - -And everything here was written and verbal, and so as I did my inspection, I addressed it with him, showed him what needed to be done. We walked through, I usually spent at least an hour —I think there I might have spent an hour and a half, because it was pretty extensive. And you know, I want to also state that in August, after I did one of my inspections, another inspector went there. And you know, I'm not like the greatest inspector, I'm not the best inspector there is around, and he actually found other items that I didn't find there. And it's reported —we have copies of that report that was given to Mr. Takamoto. And so you know, it's not only me that has found these things, and I think, to be honest with you, if I can say this, I think that he feels that what I did took away his livelihood and his job, and he reacted by trying to make me look bad. And, you know, if that's what he's done, why he's done it, that's up to him, but- 10 CHAIR: - -Okay, well, I understand you got strong feelings fog° this, but we try —try and shy away from speculation on peoples', you know (inaudible). Yeah, go ahead. GENTRY: So the first inspection was in March of '06, and then your —that was- PERREIRA: - -That was a letter from the chief to the owner— GENTRY: - -the letter. And then tell me again what happened in October of '07. That was your first formal inspection? PERREIR,4: No, my first formal inspection was formal, written —is April 26, '07. CHAIR: April '07. GENTRY: '07, okay. So you gave him a couple of months between April and October. Was there a- PERREIRA: April to October is six months. GENTRY. Yeah, six months. You gave them some time, is what I mean— CHAIR: - -And August was the meeting you guys all came together. PERREIRA: August was the meeting. There was numerous visitations between then, at night— CHAIR: - -Okay- PERREIRA: --just because of requests from Liquor or for concerts, or for when they had like, the —what do you call those things —those fights. A lot of times those nights the clubs would get more crowded, and so we would go out. And we wouldn't only go out to Uncle Mikey's. We'd go out to Nichol's, which is not Nichol's anymore. We'd go out to Shooters, we'd go out to Detours, we'd go out to various different clubs, because— GENTRY: - -My question is actually, when was the formal cite —was there a formal citation made, and what was the date? PERREIRA: The formal citation, there was two of them — October 10th was the first one, and that was after our meeting with the building department and electrical department, and what concerns they had. And they red - tagged that business on that day, because they were doing things without permits. And so they red - tagged it, and they didn't want them to do any more construction. On October 10th we gave them a citation, saying they had seven days to correct a bunch of stuff, and that was done by our department, between myself, my battalion chief, who is my immediate supervisor, and the fire chief. And on October 17th I believe it was October 18th that it was actually signed by the owner — saying that they need to close the establishment, not use it. About a week later they came back and asked us- 11 UDOVIC: - -You said the owner. The owner of which? PERREIRA: The owner of Uncle Mikey's, Keoki Kai. About a week later — during this time, they're working with my immediate supervisor, Battalion Chief Pacleb, trying to see if they can reopen. They wanted to do different things, they wanted to use just one room. And so he worked with them, trying to see what they could fix to just use that one room. NICHOLSON: When you say he, is that the owner, or is that Mr. Takamoto? PERREIRA: No, my supervisor, Battalion Chief Pacleb, worked with them, trying to see how they could operate just one room out of their whole complex. And after meeting with —I believe, the building department got involved with an inspection, and my battalion chief, and they were allowed to reopen just a section of their business that used two exits. GENTRY: Okay. So the formal citation came on October 10`h, and then the need to close was issued on the 17`h PERREIRA: Yes. GENTRY.• During this period of time, was Uncle Mikey's —the owner and the managers —were they pretty cooperative, curious, or were they standoffish? What was their general attitude? PERREIRA: Can I say exactly? CHAIR: Sure, yeah. Please. PERREIRA: I mean, there's something that happened to me that —I was visited by someone, someone large, one of the friends of the owner's, actually, but he was actually a friend of myself and my dad. And he asked me if I could go easy on them. CHAIR: Where was this at? PERREIRA: I can't remember exactly where it happened, but it was in town. I was working and just ran into him. And I know the guy for years. I didn't realize he was friends with the owner. And so he asked me. And basically I just said, you know, he needs to fix the stuff that he needs to fix. He hasn't done it, and he needs to fix it. He wasn't threatening, it wasn't anything like that. But I know he had asked him to come and see me, because he knew that I knew the guy. And so, you know —they did become a little cooperative, but at the same time they didn't really meet every need that we needed corrected. GENTRY. They didn't do what they were supposed to do? 12 PERREIRA: It was partially met, and so they had to go back and fix this, or add some gravel to the walkway outside, cut down some of the bamboo that was growing up in the exit. You know, maintenance stuff that should be done routinely. And so they did what they needed to so they could open up a small portion. GENTRY: Okay. CHAIR: Go ahead. GENTRY: Wait, I just forgot the question. I'm sorry, I forgot what I was going to ask. But I do have another question. CHAIR: Okay. Mr. Perreira, I'd like to -- GENTRY. - -Oh, yes, I remember what it is. CHAIR: Go ahead. GENTRY: Did you report this incident, this visitation, did you report that? Or did you just- PERREIRA: I talked about it lackadaisically, because it wasn't a threat. It was not. GENTRY.- But you mentioned it to your supervisor at the time? PERREIRA: I'm not sure ifl totally mentioned it. But like I said, it wasn't a threat, but it just I knew it definitely came from the owner, to come and ask me. CHAIR: The message was clear. PERREIRA: Yeah, to come help them out. And I said, you know, we did what we could, and they need to do what they need to do. CHAIR: Anything else? GENTRY: Go ahead. L UM: The letter that Mr. Takamoto submitted, he seems to feel that you were —he used the word bullying, intimidating — CHAIR: Emotional distress. LUM: You know, causing him distress. Maybe ifyou could you've seen this, right? Maybe if you could just address that, where you think this is coming from, your point of view about all of this, or some of this —it doesn't have to be all of it. 13 PERREIRA: It's all false. I guess I could share another personal experience. In my lunch breaks, once in awhile, I get to go out and exercise with some of the police officers at the gym. And we have a good time, we runaround and play ball play basketball. If Ivan felt at any time bullied or intimidated by me, I don't think that he would come up there and play basketball with us. And he would. He came up there numerous times. Mr. Ashida, who is here, goes up there, and he's seen, you know —and we've —it was kind of like —I don't want to say a friendship, but it was a mutual, eh, howzit, you know? It's just sad. It's sad. Like I said it's just false. It's all false. CHAIR: Well, I have some questions, unless you have more. L UM: No, please do. GENTRY: No, go ahead. CHAIR: Well, I appreciate you —I think —I appreciate you answering these questions, and you've given us a pretty good idea of the background and history of what went on. However, as chair I like to try and keep things focused on what the petition is about, what the accusations are, and we're here only to interpret the Code. We're not here to pass judgment on anyone, but just to see if there are violations of the Ethics Code. So I'm going to ask you a few questions, straightforward questions, and I'd just like you to answer them as honestly as you could. Mr. Takamoto accuses you of drinking while you're on the clock, or on the job. Did you at any time do that? PERREIRA: I think you need to correct that, because it says that if the statement says that I punched out early -- CHAIR: - -Yeah- PERREIRA: -- the night of June 30th CHAIR: -- right- PERREIRA: --just before midnight— CHAIR: -- clocked off early, at 2:30— PERREIRA: - -yeah, so he's not alleging that I drink on the job. CHAIR: Okay, I'm sorry. Yeah, you're right. Well, did you drink on the clock? No? PERREIRA: No. CHAIR: Okay. PERREIRA: And June 30th, 2007, my personnel records show that I wasn't even working. 14 CHAIR: Okay, all right. Did you accept free tickets, or did you request free tickets to the Augie T. show from them? PERREIRA: I have never requested any free tickets. I did purchase tickets from Mr. Takamoto directly for the Augie T. show to take my wife and my stepdaughter for Mother's Day. CHAIR: Okay. So you did go to the show, but you purchased the tickets. PERREIRA: Yeah. CHAIR: Okay. That's really what —the questions I had, and these are —those are the two issues I feel that really have to do with why we're here today. L UM: So if you weren't working on June 30`h, you would not have had your uniform with you. PERREIRA: Well, I was not there. L UM: You weren't there. PERREIRA: It's a false allegation. L UM.- You just weren't there. CHAIR: That answers the question for me. That really settles the issue for me. PERREIRA: Thank you. CHAIR: But the Board —did you have a question, Marilyn? NICHOLSON: Yeah, just again, so Mr. Takamoto says that —he said, I do know that during this meeting, my boss did ask Bobby for a list of things we need to comply with Fire regulations. Bobby replied with a flippant attitude about how it's a business owner's job to know the Fire Code and no, he wouldn't write out a list of issues. So from what you said earlier, that's totally untrue. In fact, you did write out a specific list of issues that needed to be addressed. PERREIRA: Totally untrue. CHAIR: This is the report you're referring to, right? PERREIRA: This is our warning, notice of Fire Code violation, that states an inspection was conducted —this is dated October 10`h —date of violation, exits obstructed by various materials, construction debris, weeds, brush, waste material, other furniture and appliances, exit doors not maintained in an operable condition, exit signs not illuminated, exit discharge (undecipherable). You guys can take a look at this. That's on 15 October 10th, given to them exactly on October 12th, I believe it's dated on the top. He's stating on October 17th they didn't have a list. It's —this is the other document that was dated October 17th, given —owner signed on October 18th. Owner signed, so that means the owner physically got it. Everything that he signed he received a copy of. And that's just the major things, exits and certain things. There was other little things that we didn't state on that report, but were stated on our complete fire investiga I mean, our complete inspection report. CHAIR: So the 12th and the 18th. Does that answer your question, Marilyn? NICHOLSON: It does. CHAIR: This is the previous- LUM: - -This says the 10th CHAIR: 121h L UM: Sothis is 181'' -- PERREIRA: Yeah, date of violation is the 10th, but it's dated on the 121h- LUM: Oh, this is the first one. So this is the first one and this is (undecipherable). Okay. CHAIR: Diane, Ann, do you have any questions? L UM: And these are signed by — GENTRY. So Ivan signed the first one, and then Keoki signed the second one. So that's owner and manager. CHAIR: Yeah. PERREIRA: And then I'd like to say, in August when we did our meeting, both Mr. Takamoto and Mr. Kai both got copies of the report, the original report, so they knew back then what they needed to correct. And we walked through with them and showed them. CHAIR: What was the date, I'm sorry? LUM: August. PERREIRA: August. CHAIR: August —oh, that meeting everybody got together. PERREIRA: Yes. 16 GENTRY: I have a question, sorry. CHAIR: Yes, Diane. GENTRY: So were those —these notices just refresh my memory. Were they sent out by mail, or did someone go collect the signatures? PERREIRA: Those right there? GENTRY: Yeah, those two. PERREIRA: Those are in person. If you look at the top, it says how it was delivered. GENTRY.- Okay, yeah. PERREIRA: It's x'd in person. GENTRY: And you did that? PERREIRA: Yes. GENTRY: Okay. CHAIR: Well, if —I mean, you guys are welcome to any more questions, but it's my recommendation we offer a motion to dismiss the charges against —the petition against Mr. Perreira for Section 2 -83 and 2 -84— LUM: - -Well, I would just like to have the regular informal that we— CHAIR: Informal advisory opinion? L UM: Yeah, rather than dismiss it. I would rather say that we didn 't find a violation. CHAIR: Okay. PERREIRA: Thank you. LUM: It's not done yet. PERREIRA: No, thank you for saying that— CHAIR: - -She's a tough lady- PERREIRA: -- though, because I would rather- NICHOLSON: Are you making a motion then? 17 LUM: I will, I'm considering it. I might have one more question —one more thing to clarify about —Mr. Takamoto is feeling, on these things, it might be hindsight, it might be whatever, feeling that your —I would say verbal, your conversation —he's finding issue with maybe your professionalism, your attitude, or something. Are you satisfied with your level —it's a strange question, but we need to address it. PERREIRA: Maybe that's something our fire chief can address, because— L UM: - -Yeah, maybe so, because- PERREIRA: - -my boss, because they've received letters from the public- LUM: -- because that is part of the petition, and we ought to address it. Maybe we could have a— CHAIR: Would you like to ask the chief? L UM: A little testimony. UDOVIC: The chief is present. He's ready to testify. L UM: Yeah, if we could just just to clear I just feel because it's come before us, we should address it all. You don't need to really leave. PERREIRA: No, I'll just step on the side so the chief can— L UM: - -that we should address all of the issues that Mr. Takamoto brings up. And you've certainly had experience with him for several years, right? Thank you. UDOVIC: Please state your name so that the record's clear. OLIVEIRA: Darryl Oliveira. L UM: Just — because of this petition accusing him of belittling, accusing Mr. Perreira of belittling and saying things —I mean, just as his- NICHOLSON: - -the attitude issues- LUM: — I mean tell us give us a testimony. OLIVEIRA: I guess if l could maybe elaborate a little bit more. One is our department, we have a philosophy of true customer service. And what our Prevention Bureau has received from me as a directive —to always work with the establishment owners, occupants, on trying to get cooperative compliance. We're not looking at ourselves as being truly law enforcement, but we definitely have to get compliance. So they have a directive from me to always work with the occupancy, owners, to together find the solutions to get the compliance and protect the safety and health of the public as well as the patrons of all these establishments. Over the years, since Inspector Perreira has been in his position, I have never had a single complaint about his conduct, his professionalism. In fact, I have numerous letters of praise for his conduct, because I think — again, the customers that we deal with have come to appreciate that we're looking out not only for the interests of them — liability with their customers and their patrons — but as we communicate to the business owners and establishments, it's also for our personnel, the responders who will be called therefor emergencies if it happens. Enforcement of the Fire Code is protecting not only again the customers, it's protecting firefighters. So when they explain that to the business owners, I think people see the perspective that they're just doing their job, and we're here to work together. And again, I've never had any comments, concerns, complaints regarding the professionalism of any of our Fire Prevention Bureau inspectors. L UM: Okay, thank you. CHAIR: One thing that I know you know already, but I'd like to point out again, is that these are very serious allegations, and they reflect not only on Mr. Perreira and where he's put in a position where he has to defend himself and his character, but they also reflect your whole department. And I personally have a lot of respect for the professionalism you guys show and the job you guys do. But many times just being put in that situation, you guys are forced to kind of scramble and defend yourselves and what you guys do. So I'm not here to tell you how to do your job or anything, but —I know you're aware of it, but I just wanted to point that out. Thank you for coming here today and for providing the testimony. Yes, Diane? GENTRY: I have one more question for Inspector Perreira. Thank you. OLIVEIRA: Thank you. GENTRY: Would you just happen to know, when Mr. Takamoto, since he's not here, left Uncle Mikey's employ? Was it after this October date? PERREIRA: I'm not sure. GENTRY- You don't know, you have no knowledge. CHAIR: Ms. Schoen, you might know, right? No? SCHOEN: No, I don't. LUM: Apparently it closed in October. PERREIRA: Yeah, they reopened. LUM: Oh, they reopened. 19 PERREIRA: Yes. Like I said, I'm not sure if you remember me saying that my supervisor worked with them to reopen part of their business, and then they opened up a little restaurant, also— GENTRY. - -Was he involved in that reopening? PERREIRA: They were closed later for a different reason. GENTRY: Was he involved in that reopening, to your knowledge? PERREIRA: Yes. GENTRY.- He was. PERREIRA: Yes. We made visits —I can share this with you. We made visits after. I have from —I got it all mixed up —but from August 9`h, 2008, July 14`h, 2008, June 301h, 2008, June 3rd 2008, you know, all these nights that we go out there and we make sure that it's safe. And there's still documentation of things that they didn't —that they're not doing that they're supposed to be doing. GENTRY: So actually, they never completed what they were supposed to do, and yet they were allowed to reopen? PERREIRA: Not that they never completed it —if they were reopened, that means things were corrected, okay. But now these are things that routinely need to be done that weren't done. GENTRY: Oh, routine stuff. PERREIRA: Because— L UM: - -Trash on the stairs- PERREIRA: - -Yeah, trash on the stairs, exit doors locked or blocked or you know, that kind of stuff. And so we continued to make visits out there, after. And then they were closed for a different reason. I am not aware of that reason. GENTRY.- Okay. Thank you. L UM: Are we ready? I move that we find that Mr. Perreira is not in violation of the Hawai `i County Code of Ethics, with special references to Section 2 -83, fair treatment, and that we dismiss the —that we dismiss Section 2 -84, conflict of interest, because it did not apply. CHAIR: You got that, Mary? NICHOLSON: I'll second that motion. 20 GENTRY: Discussion? CHAIR: Yeah, discussion? Go ahead, Diane. GENTRY: Yeah, I guess the toughest part is that the person that submitted the petition is not here to answer other pertinent questions, so this is actually kind of a tough decision to make, you know, without seeing the other side. But since he's not here, we have to go with what's on the record. CHAIR: Thank you. I have a few comments, and this is kind of directed more towards the Board. And what I'm about to say - -I don't want to diminish these allegations or whatever —the the petition Mr. Takamoto brought to us, but I, you know, have been chair for a few months now, and the one thing that I really want to try and avoid is us allowing this Board to become a vehicle for people to kind of have knee-jerk reactions. Obviously, Mr. Takamoto had some serious issues, and he's troubled by the whole situation, regardless of the reason. But we as a Board need to be very careful that we uphold the integrity of this Board and that we look at issues that are pertinent, serious, and relative to the well -being of our community. And I'd like to try and avoid, like I said, letting it become a vehicle for guys just to— people just to chase ghosts and make allegations and things of that nature just so that they can tarnish someone's reputation. Mr. Perreira I'm sure worked very hard at his reputation and his character, so I just want to address you guys on that. And I'm very grateful for you guys being here, and I wouldn't have anybody else—wouldn't serve with anybody else. So anyways, that being said, Mr. Perreira, I thank you for coming— L UM: - -We didn't vote, we need to vote— CHAIR: - -Yeah, I know, but thank you for coming in, and hopefully you can move on from this and- PERREIRA: Yeah. CHAIR: We hope not to see you under these circumstances. PERREIRA: Me, too. CHAIR: Okay. Any other discussion? Okay, all in favor of the motion on the floor, say aye. L UM, NICHOLSON, GENTRY (simultaneously): Aye. CHAIR: Aye. Okay. Thank you very much. UDOVIC: Thank you. 21 PERREIRA: Thank you. Do you guys do have those copies? Okay, I need to put it back in the file. CHAIR: Thank you, chief. OLIVEIRA: Thank you. L UM: Thank you for coming in. CHAIR: Thank you, Mr. Pacleb. Mr. Udovic. UDOVIC: Thank you. PERREIRA: Thank you for your guys' time. Hearing on the petition concluded at 10:53 a.m. . 6. UNFINISHED BUSINESS a. Further discussion on Section 2 -85(b) of the Code of Ethics, regarding the prohibition of contracting with former employees and retirees, and whether the Board should pursue rewording this section to make it clearer. Ms. Schoen said the only proposal she had been able to come up with to clarify Section 2 -85(b) was to add the word "is" where it was missing. She had not been able to come up with language to make it simpler and suggested they follow the language in the State provision. She explained to new member Diane Gentry that there was a conflict in the Code between Sections 2 -85(b) and 2- 91.2(b), both of which deal with the County contracting with former employees. Section 2 -85(b) seems to be trying to say that a County agency shall not enter into a contract with any person or business if that person or business is being represented or assisted by a former County employee who had been involved in the subject of the contract while employed by the County, unless it has been at least two years since that County employment. Section 2- 91.2(b), on the other hand, states that nothing shall prohibit the County from contracting with a former officer or employee if at least 12 months have elapsed since the former employee left his/her County job. So there is somewhat of a conflict between the two sections. Although the Board does not have the power to change the Code, it can make a recommendation to the County Council and they could take action, or not take action. Ms. Lum said she does not like the wording, even with the "is" added in, but she was tired of dealing with the issue. 22 Motion and vote: Ms. Nicholson moved to accept the proposed language under Section 2- 85(b), which includes the word "is" and to request that the matter be put on the agenda for the County Council. Ms. Gentry seconded the motion. The Chair, Ms. Nicholson, and Ms. Gentry voted aye. Ms. Lum abstained. Ms. Schoen asked if the Board wanted her to draft a letter from the Board, requesting that this be done and that the Council put it on its agenda to address, and the members said yes. The Chair said to let him know when it is ready, and he will come in and sign it. b. Discussion on amending the Board's Rules of Practice and Procedure regarding the imposition of administrative fines pursuant to ordinance 08 -57. Ms. Schoen handed out proposed amendments she had prepared to Rules 7 and 8 of the Board's rules of practice and procedure. Ms. Schoen explained to new member Diane Gentry that back in May the Council adopted Bill 209, which would allow the Board to impose fines for ethical violations. The ordinance states that the Board must follow the procedures in Chapter 91 of the Hawaii Revised Statutes. Chapter 91 deals with the procedures for administrative hearings and providing persons their due process rights. The Council wanted to make sure that before the Board can impose a fine, the person has notice, has the opportunity to come to a hearing and defend himself, and has the right to an attorney and to confront witnesses. Section 46 -1.5 of the Hawaii Revised Statutes has a provision which states that any time a county imposes a civil fine, it must first ask the person to cease and desist the action being taken. Because of this, Ms. Schoen said the Board's ability to impose an administrative fine should come after the Board goes through a formal hearing and issues a formal opinion. If the Board should go through with the formal hearing process, all of the due process requirements of Chapter 91 would be met. That process is already articulated in the Board's rules and in the County Code. If the Board should find that someone violated the Ethics Code, it would refer the matter to the appointing authority to take whatever disciplinary action it deemed necessary. The Board members had questions about when a formal hearing could take place. Ms. Nicholson said that she would understand better using examples. If Mr. Perreira, for example, had been found in violation, then would the Board have requested that his supervisor, the Fire Chief, take action? Ms. Schoen said the Board would issue an informal advisory opinion regarding the violation. At that point, the Board could either on its own initiate a formal hearing on the matter, or refer it to the Fire Chief for disciplinary action. Ms. Lum asked whether the Board would be notified of what action a supervisor takes, and Ms. Schoen said yes, that it was in their rules that the supervisor shall provide the Board with the action that was taken. Ms. Schoen explained that there are two ways a formal proceeding can occur. One is if the subject person requested a formal hearing. The Board would have to provide him with 23 formal notice via certified mail, and he would be entitled to representation by an attorney, and could call witnesses and cross - examine them. The second way to have a formal hearing would be if the Board decided to initiate one on its own, which it might want to do if it received a petition alleging major ethics violations. A formal hearing would require the approval of a majority of the Board. Ms. Lum remembered that at some point the Board learned that it could not impose fines on civil service employees, because of their union status. Ms. Schoen said that was correct, that a fine could only apply to officers, or non -civil service personnel, so she would need to correct her draft in that section. Ms. Schoen pointed out Rule 4.10 of the Board's rules, which states that after an informal advisory opinion has been rendered, the Board shall notify the appointing authority of the officer or employee involved or the Council, in the case of elected officials, of its informal advisory opinion. The appointing authority or the Council would take whatever action is deemed necessary and report the action taken to the Board within 30 days after receiving the informal advisory opinion. Ms. Schoen said that if a formal hearing were held, then Rule 7 would apply, which is about non - compliance after a formal opinion is issued. That is where they could insert language about being subject to an administrative fine. The Chair called for a short recess. The Board recessed from 11:17 a.m. to 11:26 a.m., at which time the Chair called the meeting back to order. Ms. Schoen said that Rule 8 is where she would propose an amendment to deal with the failure to file financial disclosures, as the Council also wanted the imposition of fines for this. Ms. Nicholson pointed out that the draft needed a "d" added to the word "issue" in Rules 7.1 and 7.1a. Ms. Lum pointed out that wherever the phrase "if there is no compliance of appeared, it should be changed to "if there is no compliance with." Ms. Nicholson said that because the rules are important, she wanted to thoroughly understand them and test them out with different situations to make sure they were not missing anything. It would help her to be able to play out situations, as she would not like to adopt rules without really considering how they would work in reality. The Chair suggested that since no petitions are scheduled so far for the Board in November, they dedicate the November meeting to working through this matter and the other administrative things they were dealing with. 24 The members had questions about whether the Council, which would have new members soon, would need to approve their rule changes. Ms. Schoen said that the Board writes its own rules but would have to give public notice and have a public hearing on the proposed rules so that people could testify as to any objections they may have to the rules. After the public hearing was over, the Board would submit the changed rules to the Mayor, and they would become effective. Because rule changes are not an amendment to the County Code, they don't need to be approved by the Council. The members discussed whether a fine could come in only after non - compliance with a formal opinion, and whether they could issue a fine upon finding a person had committed an ethical violation. As it is, they would need to go through the formal hearing process, but the violation may have been a one -time thing. Ms. Nicholson said she wanted to look at scenarios to see how it would play out. Ms. Gentry stated she agreed with the Chair, that they should dedicate a meeting to going over these administrative matters and run scenarios. Ms. Schoen said the reason she believes a fine could not be applied before a formal hearing is because of the due process requirements involved in imposing a fine. She had placed the fine matter in the rules after the formal proceeding process, because by then the Board would already have gone through the necessary steps and the person would know that a fine could possibly be imposed as punishment. It would be set out in their rules that a fine is possible punishment, and the normal procedure of a member moving to impose the fine would happen. C. Ongoing discussion on the Sunshine Law. Ms. Schoen had nothing new on the Sunshine Law. Motion and vote: Ms. Nicholson moved to enter Executive Session. Ms. Gentry seconded the motion, and all members voted aye. Executive Session was entered at 11:42 a.m. The Board returned to Regular Session at 11:45 a.m. 7. EXECUTIVE SESSION Motion and vote: Ms. Gentry moved to accept and file Lester Kimura's financial disclosure and to return Billie Keawekane's to the secretary to get clarification. Ms. Nicholson seconded the motion, and all members voted aye. 25 8. ANNOUNCEMENTS The Chair announced the next meeting for November 12, 2008, at 10:00 a.m. in the same location. 9. ADJOURNMENT The meeting adjourned at 11:46 a.m., without a motion or vote. Respectfully submitted: Mary E. rosson, Secretary 26