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HomeMy WebLinkAbout2010-01-13 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION' Wednesday, January 13, 2010 10:00 a.m. — 11:39 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 Arthur Martin, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Crosson, Secretary for the Board Also present at times: Margaret Wille, Joan Castberg, and Leanna Gloor 1. CALL TO ORDER 10:00 a.m. The Chair called the meeting to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS The Chair called up Margaret Wille, who had signed up to testify regarding the Mayor's proposed amendments to the Ethics Code. WILLS: Margaret Wille. I'm from Waimea. I'm an attorney. I have a small practice there, but I also do a lot of community work. I was on the Mayor's South Kohala Community Development Plan Steering Committee, and I'm a member of the Waimea Community Association board of directors and other organizations. I am, though, speaking just on my own behalf, not on behalf of anyone or any organization. And I just sort of overriding concerns. I've really you know, the rule of law and process and integrity of process, and that the County and government officials should set an example as to how, as to process and ethical conduct. And I guess first I just like I just want to comment on Mayor Kenoi 's proposals, and I saw that it was there was some comment, well there hasn't been really much interest by the public, so I just want you to know there is interest, and in some ways I've looked at this before, when you were meeting, and I thought well, that's obvious, that's obvious, and that's not just that it certainly is time for these changes to be made. And I think that there's sort of a growing process and expectation that they'll be sort of reasonable procedures. I guess I wanted to focus first is really hoping and encouraging you all to really pursue the changes in the state law ' Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech. that prevent this commission from levying fines. If there's an you find an ethical violation, one can either go a civil route or a criminal route. And I think ordinarily, at least, the inclination is you're not really going after someone for criminal behavior, but it's civil and you want to have a standard and have it have what you all do be meaningful. The way I read the state law, 46-1.5 I'm not sure what the number is here, 24, with the requirements that are imposed there, in order to impose a fine, what it says to me is that you're telling people you can violate any ethical rule you want, provided you have not first been reasonably notified of the violation and you have not ceased the violation following requests, which is plural, that you cease or correct the unethical conduct. I mean just to me it's pretty clear. This is somewhat embarrassing to me, looking at the County or the state. And I realize that it's not you all that are doing this or holding it back, but I think that's why that legislation to change that stalled in 2007, 2008, 2009 I don't know. My feeling is that I mean, it just, it's just very clear, and I hope that you all would encourage that in whatever ways you can. And the second issue in terms of levying any fines is that there be an appeal, and again, I think Mayor Kenoi encouraged that there be be able to directly appeal that to the court, and I think that that is good, although I would encourage you to say, well, and if you're not going to do that this term, we're setting up and encouraging an administrative appeal in the County which will cost considerable money which we don't have, but in order to maintain the integrity of the process, that's the only recourse that's left. So I just again am encouraging that you be really strong in those. And then second, just in terms of the specific proposals, changes that Mayor Kenoi encouraged, I do support those. I feel that there are conflicts of interest. I'm aware of problems that have gone on. I would I think sort of if it's gotten to the point where even Mayor Kenoi, who could say leave this to me, I can handle this, is asking you for these rules, I would be supportive of them. And I think that if you're really in doubt, that you inquire further as to what some of the things that have happened, that have gone on and it just seems I don't feel that the island is too small to have this level of ethics. If, as a board, you're really concerned that somehow there's some area that there's someone so essential to be an employee in a department who is providing an essential service, and you identify that really that is true, which it appears Mayor Kenoi hasn't found that you would at least do this and perhaps provide that an exception, if there's an exception, that that party has to come before the County Council and openly state what the contract is and why it's essential and allow the public to see it. So I CHAIR: - -Sorry WILLS: -- encourage the transparency. CHAIR: Okay, sorry to interrupt. We usually limit the public testimony WILLS: - -okay CHAIR: - -to three minutes, but you can wrap up if you want WILLS: -okay, yeah I just encourage you to do these. I think that it's sort of past time. I would I have testified on a number of items before the Charter Commission and 2 encouraging even more ways to avoid conflicts of interest in terms of people who are on boards who are also the where the regulators are on the boards of those that are being regulated. So again, I'm just encouraging you in saying that I do believe this is important to the public and hope you pursue these. Thank you very much. CHAIR: Thank you very much. Thank you. 3. APPROVAL OF MINUTES Minutes of the December 9, 2009, Regular Session. Motion and vote: Ms. Nicholson moved to accept and file the minutes, Ms. Gentry seconded the motion, and all members voted aye. 4. COMMUNICATIONS There were no communications. 5. NEW BUSINESS a. Election of Chair for 2010. Nomination and vote: Ms. Nicholson nominated Mr. Dill to continue as chair. Ms. Lum seconded the nomination, and all members voted aye. 6. UNFINISHED BUSINESS a. Further discussion on Mayor Kenoi's proposed amendments to the Ethics Code, and consideration of any other proposed amendments to the Ethics Code. Ms. Schoen provided a hand -out she had prepared which showed language regarding contracting with employees for comparison among the counties, state, and several mainland jurisdictions. On the last page, pursuant to the December meeting, she had drafted the following language for the Board to propose: 2.85. Contracts. (a) A County agency is prohibited from entering into any contract with an officer, an employee, the officer or employees' sibling, parent, child or spouse, or a business in which the officer or an employee, or his sibling, parent, child or spouse has a controlling interest unless: (1) the contract is with a County department other than the department for which the officer or employee is employed; or (2) the contract is for Special Duty Services of the Hawaii County Police Department; or (3) the County agency or officer or employee obtains approval by the Board of Ethics to enter into such contract; or (4) the contract is awarded in accordance with subsection (b). The rest of the Contracts section would retain its current wording except that (a) would become (b) and (b) would become (c). Ms. Nicholson was concerned about how it would work for someone submitting a sealed bid for a contract, but who also needed to seek the Board's approval. She was also concerned about the timeline for someone to submit a bid if he also needed to seek the Board's approval, since the Board meets only once a month and must follow Sunshine Law requirements in agendizing matters. Ms. Schoen encouraged the members to feel free to revise her proposals as they saw fit. The Chair stated that his intent was to respond to the Mayor's proposals in February. Everyone had been working hard and racking their brains to come up with good language. He wanted the Board's approval for Ms. Schoen and him to work on drafting a letter to the Mayor for the Board to review at its February meeting. The Chair said he had met with the Mayor recently and got the impression that he had brought his proposals to the Board out of courtesy and will probably present them as they are to the Council, regardless of the Board's response. The Board discussed how to respond to the Mayor. They agreed to thank him for the proposals and acknowledge his concerns. However, they also wanted to make it clear that they were concerned with his proposals, explain why, and suggest he consider their alternative language. Ms. Gentry said they should submit their proposed language to the Mayor. Since the Board was the first realm for public debate and testimony, the bulk of which supported the Mayor's proposals, it should be explained that they had studied and discussed each proposal and foresaw the likelihood of negative ramifications. People should not be denied the opportunity to contract with the County as long as they are legitimate and above board. Ms. Schoen explained that the Board's proposed Section 2- 85(3), which involved getting the Board's approval, was a catch -all condition. In such a case, the Board would look over other applicable code sections, such as the Fair Treatment and Conflicts of Interests sections, to see if they would have any bearing on the contract. Ms. Gentry said that for small contracts, such as teaching an ukulele class, the County agency involved should also have due diligence in advertising and seeing who else is available so that the perception the Mayor is worried about is not actualized. The Chair said a lot of it comes back to one of the Board's initial concerns when they first started looking at the Mayor's proposals: the amount of qualified people to contract with. The more limitations placed on contractors, employees, and officers, the smaller the pool of rd qualified businesses or people to provide services. And where there is less competition, the price goes up. Ms. Gentry noted they had focused mainly on small contracts such as teaching a class or being a lifeguard. However, conflicts are going to arise on the big contracts, and due diligence needs to be in place for those. Ms. Lum said she agreed conflicts need to be avoided on the big contracts, but hoped the small contractors were not stomped on in the process. The members agreed they liked having the language about obtaining approval by the Board of Ethics, although there could be a timeline problem between bidding on a contract and having it reviewed by the Board. Ms. Lum said a person could foresee the potential of a contract down the road and bring it before the Board beforehand for review. Ms. Nicholson asked whether the certification form that the State is using for contracts needed to be included in their proposals. Ms. Schoen explained that it would be part of the contracting process. The Board could propose the certification form to the Office of the Corporation Counsel, which is cast with reviewing contracts and devising routing procedures. Council approval was not required to use the certification form. Ms. Nicholson said the certification form is a way of addressing some of their concerns and would help avoid conflicts of interest. Ms. Schoen said the proposal could be worded to state that any and all contracts entered into between an officer /employee and the County must not be executed without proper certification, or similar language. Ms. Lum noted the sample State certification form was entitled "Provider's Standards of Conduct Declaration." Ms. Schoen explained that the language she drafted for Section 2 -85 articulates what she understood as the Board's consensus, in that they did not automatically disapprove of an officer /employee contracting with the County if it involved another department; it addressed their concerns about special duty police officers; the section on the competitive bidding process was kept; and review by the Board was added in case there was any question about contracting. She said the Board could suggest this language or any part of it in the response to the Mayor. Ms. Nicholson suggested that in their response, they address each item the Mayor wants to change, state their concerns about each item, and provide examples. They should express their agreement that the language needs stiffening up, but also share with him their concerns and recommended language. This way, they would be stating not only their concerns but how they would address them, and also provide language for him to consider. The Chair said that for the Mayor's Proposal 2, they agreed the word "is" should be inserted where it was inadvertently left out of Section 2 -85. However, the main parts of Proposals 1 and 2 went too far and would have an unintended effect on smaller contractors and special duty officers. Ms. Lum said they also agreed that Proposal 1 belonged under Contracts rather than Fair Treatment. Ms. Nicholson questioned where the certification form would be mentioned, and Ms. Lum they could state in their letter to the Mayor that they are recommending the use of the form in the contracts procedure as an additional safeguard to address his concerns. For Proposal 3, the Chair said he was concerned about not allowing officers /employees to represent private interests in any action before the County. He understood the intent but is concerned about the availability of qualified people to serve on boards and commissions. Ms. Nicholson said that a County employee should not be barred from speaking as a private individual on a matter that is totally unrelated to his job, which is how the proposal seemed to be worded. The Chair agreed and said that if something came up that could affect his well- being, community, or family, he would have to step down from the Board in order to testify. The proposal would force people to choose sides. The County's population is small, and issues overlap and affect people constantly in different ways. To place more walls and barriers could in the long run create more problems than it solves. Ms. Nicholson said they should share their concerns with the Mayor on this issue, although they did not have any suggestions here. It was more a concern about the whole issue. The Chair agreed their concerns should be in their response to the Mayor. The Board discussed Proposal 4, which dealt with tightening the definition of "agency." They did not have objections to it but questioned whether it was needed. They decided to have no comment on it. The final proposal was regarding supporting changes to state law to empower the Board to levy administrative fines, and the Board had already made it clear they were in support of that. It will be lobbied again at the legislature this year. The Chair said he would work with Ms. Schoen on drafting the response to the Mayor. Ms. Nicholson asked whether the Board's own proposals would be part of the response to the Mayor or would be addressed in another way. She felt they should be incorporated into the response. The Board discussed whether they wanted to change the time limit to file a petition. The current time limit is six years from the date of the alleged violation. Ms. Schoen pointed out that the time limit is the same as the State and City and County of Honolulu. Ms. Gentry said that some contracts are long term, which may be a reason why the deadline is so long. An issue 31 could come up later that could not be foreseen in less time. Ms. Nicholson recollected that Maui County was considering a one- to two -year limit. Ms. Lum said her impression is that some petitions are filed because of cumulative behavior, where an action becomes the last straw for the petitioner. Ms. Nicholson said the time limit is not really an issue, and they always ask a late petitioner why it took so long. The Board decided to leave the matter alone. Ms. Nicholson brought up her December 6, 2009, email to Ms. Schoen, asking questions about the Ethics Code, and Ms. Schoen's responses. Question 8 dealt with lobbyist registration, and whether blogs or other electronic media which did not exist when the Code was drafted should be added to the list of media in Section 2- 91.3(b)(5)(D). The other members agreed. Ms. Nicholson also brought up Section 2- 91.3(e)(1), which states that lobbyist statements and forms need to be filed with the County Clerk by United States mail. Filing of such forms should also be allowed by hand - delivery, as well as by more modern methods such as email and fax. The Board discussed how proof of filing would be shown, as it might not be possible to get a delivery receipt when emailing. Ms. Lum suggested language to say that the forms could also be delivered by hand or electronically with proof of receipt, and the others agreed. Ms. Schoen said the Board at an earlier meeting had discussed refining Section 2- 83(a)(3) of the Code, which required that all officers /employees treat persons in a "courteous, fair and impartial manner." The Board discussed whether they should tighten up the section, as "courteous, fair and impartial" means different things to different people. Ms. Lum said that though the section was inconvenient to the Board did not mean it should not be a part of the Code and that citizens perhaps needed a "catch -all" bucket to bring up their frustrations. The Board decided to leave the section alone. The Chair instructed the members to let Ms. Schoen or the secretary know if they thought of any other proposals, and he would work with Ms. Schoen on drafting the response to the Mayor. Ms. Lum reminded them to mention in the response the certification form for contracts and the electronic service of lobbyist documents. Ms. Nicholson said they could request the Mayor share their concerns in his submittal to the Council, and the Chair said they would include that in their response. The Chair called for a recess at 11:20 a.m. The Chair called the meeting back to order at 11:24 a.m. 7 Motion and vote: Ms. Gentry moved to enter into Executive Session for the confidential items on the agenda. Ms. Nicholson seconded the motion, and all members voted aye. 11:25 a.m.: The Board left Regular Session. 11:38 a.m.: The Board returned to Regular Session. 7. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the minutes of the December 9, 2009, Executive Session. Motion and vote: Ms. Gentry moved to accept and file the minutes, Ms. Lum seconded the motion, and all members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2- 91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Motion and vote: Ms. Gentry moved to accept and file the two disclosures reviewed, Ms. Nicholson seconded the motion, and all members voted aye. 8. ANNOUNCEMENTS The Chair announced the next meeting as being scheduled for February 10, 2010, at the Department of Liquor Control, 101 Aupuni Street, Suite 230, Hilo, Hawaii. 9. ADJOURNMENT Motion and vote: Ms. Gentry moved to adjourn, Mr. Martin seconded the motion, and all members voted aye. 11:39 a.m.: The meeting adjourned. Respectfully submitted: nws 66hum, s=Vwrr E?