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HomeMy WebLinkAbout2010-10-13 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION' Wednesday, October 13, 2010 10:03 a.m. — 11:23 a.m. County Council Chambers 25 Aupuni Street Hilo, Hawaii 96720 Members and staff present: John E. K. Dill, Chair Ann Lum, Vice Chair Arne T. Henricks, Member Bernard Balsis, Jr., Member David Heaukulani, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Crosson, Secretary for the Board Shanell Sarsuelo, assisting the Secretary 1. CALL TO ORDER 10:03 a.m. The Chair called the meeting to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Two people signed up to testify. The Chair reminded the public that testimony is limited to three minutes. The Chair called up Toni Robert. ROBERT: Aloha, Board. This is my first and only time here, so I don't know what you expect of me. I am the person who submitted the petition. I have print -outs of emails that confirm the allegations I made in my addendum and in my complaint. I also have an additional item that I wanted to bring forth today that I didn't feel comfortable bringing forth originally, because I knew that there would be backlash from this petition, and I didn't want to subject the person that would be identified as part of that. I don't know what the rules are as far as my statements are concerned. CHAIR: Well, let me today, right now, we're just taking brief testimony on any agenda item. We do have your petition agendized, and we will be probably bringing you up to speak to us about it and ask you some more questions. ROBERT: Oh, okay. If you're going to do that then I'll just wait, because I don't really have anything else to say. CHAIR: Okay. ' Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech. ROBERT: Mahalo. The Chair called up Tim Rees, who had also signed up to testify. REFS: Good morning, sir, and Ethics Board. I would like to speak first on Communication No. 4 Communications 2010-0 73 from Council Member Dennis Onishi. I hope that this Board doesn't feel like a dog that keeps getting thrown a stick and people saying go fetch for political purposes, because I feel had this Board been given an opportunity to really digest the requirements of this job, the goals and the designs of why we even have a Board of Ethics, I think that the Board here probably would have come up with a better bill, given the proper timing and the proper length of review, than either what the mayor has sent you and what the council has now sent you. That's just my personal opinion. I think that's why this community setup a Board of Ethics. I do see some conflict when the mayor I understand the mayor's vision, and again, I think stated this. I feel this is mostly being done for political purposes, and I'll back that up with a few facts. I went and spoke with the mayor's executive assistant over here. There has never been one complaint about an employee stealing a job from the private sector in this county. Never. Now, the council has had lengthy testimony on this issue, and what it really boils down to, if you watch their testimony - -it's the appearance. It's all the appearance. And I'm going to say this right now. This particular county council, without getting personal, they have created the largest appearance of a problem in government operations than any single employee or employee's family has. I am in favor of the change of people shepherding projects through certain departments. For instance, if the average time is, oh, let's say, two months to get a building permit, and then you happen to be good friends with a county employee who can get that done in three weeks that's disparity. That's unfair treatment, and that is somewhat --a bit of, you know, hey, I can take care of it for you. You know, even if money doesn't change hands, it's just not fair. It's not legitimate. There are big problems with the Ethics Code itself, because there are a lot of things that are so subjective. Was someone treated fairly, courteously, or respectfully? I'm not sure if that's the three criteria in one portion of the Code. But for instance, let's give an example there. If a council member politics is not always fair. So now if the council member goes to an administrator, let's say Park and Rec, and says, look, I got these constituents from this part of my district complaining like heck. They want a new park, and I got these guys. I tell you what. I can only do so much in two years, and we only got so much money. I'll ditch out on these constituents, but if you give me this one, and I'll quiet down about this, I won't say anything publicly. Well, is that that's the nature of politics, sorry to say. Is that fair to these constituents over here? Not really. So I don't want to get too far spun out on this thing, but I just feel that you folks could come up with something more rational that will really get at the serious problems that we may have in ethics. And I don't like this thing about the appearances. I mean, ever since Plato wrote The Allegory of the Cave, you know, things aren't always what they appear to be. And I think it has been overblown. And even Council Member Ford, I like her personally, but she's made statements at the county council, saying, oh, I can assure you, there 's all kinds of problems we 've had with this - -after I made a statement publicly saying that there's not been one complaint filed, ever, in this County on that subject. And then she says, but I'm not going to name names and I'm not going to say what it was. Well, that's not really fair. Is that fair, using the bully pulpit of the microphone and the public television it's broadcast on Na Leoto, again, to incite this 2 appearance that our county employees are doing something improper? And we do have the sealed bid process. I think it is very fair. I don't know any county employees personally, other than perhaps the council staff, that they see me quite often. But I don't have a dog in this fight, as people say. I think that government's focus with regards to government, county employment, should have to do more in the area of moonlighting and again, only when that begins to affect an employee's performance. Now there's a public interest, right? And now sorry to say that. No one wants to bring that up, because if you've ever flagged for traffic on the streets, it's actually harder for our policemen to stand there. It's harder to stand on your feet, holding a sign and directing traffic, than it is to run a marathon or to jog. And that's just a fact. And what you find out is you get a lot of ankle and foot injuries occurring. CHAIR: Mr. Rees, just a reminder. We try to limit this to three minutes, so if you want to cover any other agenda items, go ahead and do that. REES: Okay, so I would hope that you either postpone this or pass the provision of that bill that gets rid of the favored treatment where people shepherd a project through county government. The rest of that, until somebody can point out that it's really been a problem, I don't see that we need to hurt our families. And Mr. Onishi, at the council, did present very good examples of that, where family members may be coaches and such. And just to wrap that up, sir, if I can. If the county council wishes to go to start singling out police department, lifeguards, you're opening a can of worms. Because why be very careful if they suggest something to you along those lines. Thank you, sir. Number S, my real concern here is I've spoken before to the prior Board about how can I testify intelligently when I don't see a copy of the petition. I understand the state has passed the laws. I think they're dead wrong. There are really good in fact, they did an entire reversal on their position about not naming complainants and who's being complained against, and it's interesting to read. There's a very good law review article on this where one of these students just makes the greatest argument. He cites to U.S. Supreme Court law, case law. It does hinder me now on Petition No. 2010 -09. So what I have to rely on is what I've seen in the paper. And that's a terrible way to get your information in general. But the situation here, to me where I see a potential problem, is if these allegations - -what were reported in the paper are supportable- -then it sounds to me as if this is a penal this could very well be a penal offense and prosecuted. And then I look at it and I say, well, are you folks going to function in this area almost as a mock trial, and what benefit would that serve? So it's kind of like a jurisdiction thing. It seems to me that someone could review this, such as the Prosecutor's Office, and say, well there's some meat here, one way or the other, and we may wish to prosecute this. It's a penal offense. It may not be criminal, where you go to jail, but nevertheless, I wonder if your folks' interactions on this would get in the way of a proper penal proceeding. I have seen situations that concern me, where a person comes up here during an open petition proceeding and they say they don't want to answer the question. Well, you folks- - unfortunately you don't have the power to cite them for contempt of the Board. And if someone comes up here and just says my attorney advised me not to answer that question, what benefit is served in the community? CHAIR: Okay, just to be clear, you're speaking on items S, the petitions, and you're in support of publicizing the names of the petitioners? 3 REES: That's true, and I'm also stating that there may be a conflict here where when in general I'm making my statement when any petition comes forward that may inherently allege a penal offense, regardless of whether it is an infraction, a misdemeanor, or even a felony, I think that the Board needs to take into consideration, are we going to do something that's going to get in the way of a proper penal proceeding, with all of the constitutional safeguards that are afforded properly? And as you know, those vary between violation and misdemeanor. In this case I understand it's a county ordinance, so I know it would be a misdemeanor or less, but nevertheless, misdemeanors are very serious offenses. And the nature of what's been alleged here I would hate to see someone just say, my attorney tells me not to answer that question. It almost makes a mockery of your positions here. So okay, enough said. Thank you very much. CHAIR: All right, thank you. Any other statements from the public on agenda items? Okay, moving on to Item No. 3, approval of minutes from our September 8, 2010, regular session. 3. APPROVAL OF MINUTES Minutes of the September 8, 2010, Regular Session. Motion and vote: Mr. Balsis moved to approve the minutes, Mr. Heaukulani seconded the motion, and all members voted aye. 4. COMMUNICATIONS Communication No. 2010 -073: dated 9/30/10 from Council Member Dennis "Fresh" Onishi to the Board, requesting that it review and resubmit comments and recommendations regarding Bill 230, relating to the Code of Ethics. The Chair and Ms. Lum explained to the newer Board members how the Board had been approached by the mayor some time ago to review his ethics proposals, and that the Board had met, studied, and discussed the proposals over several months. They had also solicited public testimony and input. They came up with a response, which was sent to the mayor and council. The Chair said it appeared that Mr. Onishi wanted the Board to take another look at the proposals, since several new members had been appointed. Since the recent members may not have had the opportunity yet to review the proposals and the Board's original response, the Chair asked them to do so and to provide their comments and input at the next meeting. Ms. Lum asked if the newer members had any questions of her and the Chair, since their proposals differed from the mayor's. Mr. Heaukulani said that from what he had read so far, he agreed with the Board's original decision that the mayor's proposals were too restrictive. He said he would vote against the bill if he were a council member. rd The Chair reported that Mr. Onishi had contacted him, requesting a meeting. He was not sure what Mr. Onishi wanted to discuss with him, but perhaps it was what the newer Board members thought of the proposals. Mr. Henricks said he read the mayor's proposals and the Board's prior response; and although he was not serving at that time, he agreed with the Board's decision that the mayor's restrictions were too stringent. He had come up with his own proposal, which was to have a potentially questionable contract with the county submitted for review to a third party, which could be the Ethics Board. The third party would review the content of the contract and surrounding circumstances and make a recommendation. If the third party found any impropriety in the contract, they would report back to the mayor and council as to that impropriety. This would take away the stringency of the mayor's original proposals and provide a way to make sure contracts are proper. The Chair said the Board had discussed some time ago the option of having potentially questionable contracts reviewed by them. Ms. Schoen said that the Board's April 7, 2010, letter to the council included a draft ordinance amending the Ethics Code, and the language provided an option to have the county agency, officer, or employee obtain the approval of the Ethics Board to enter into a contract. The Chair asked Ms. Schoen whether it would be in the Board's juri sdiction, rules, and purpose to review potentially questionable contracts, and Ms. Schoen said yes. County Clerk Kenneth Goodenow was present, so Ms. Schoen asked him about the status of Bill 230. Mr. Goodenow said the bill was postponed at the last council meeting to October 20, 2010, for the purpose of getting the Board's input. If they were unable to provide input by then, it was possible the council would postpone the bill again, although that was speculation. His recollection of the discussion was that since the Board now was full, Mr. Onishi wanted to re -seek their advice, to see if anything had changed. Mr. Heaukulani said he wanted to express his philosophy. Hawaii has a reputation for being anti - business and over - regulated. In his opinion, the mayor's proposals were a speed bump for the free flow of free enterprise. In Hilo, everyone is only two degrees removed from everybody else. He does not want to see food taken out of the mouths of locals and given to outsiders. The Chair said that what the mayor is trying to do is good, and there are areas of the Ethics Code that should be looked at and improved. However, the Board had previously decided the proposals were over - reaching and would open the door for unintended consequences. He asked the newer members to submit their comments and ideas in writing for review at the next meeting. Ms. Lum asked for clarification on whether the Board wanted to submit anything to the council for its October meeting regarding Bill 230, and the Chair said no. 5 Motion and vote: Mr. Heaukulani moved to accept and file Communication No. 2010- 073, Ms. Lum seconded the motion, and all members voted aye. 5. NEW BUSINESS a. Petition No. 2010 -08: Employee's request for informal advisory opinion on whether she may work part -time as a marriage and family therapist in private practice. The Chair pointed out that the petitioner had requested a closed hearing, and Ms. Schoen said the Board would have to vote on that request. Motion and vote: Mr. Balsis moved to go into executive session for a closed hearing on the petition. Mr. Heaukulani seconded the motion, and all members voted aye. 10:26 a.m.: The Board left Regular Session. 10:40 a.m.: The Board returned to Regular Session, and the Chair called for a five - minute recess. 10:46 a.m.: The Chair called the meeting back to order. b. Petition No. 2010 -09: Initial review of petition alleging that an officer and officer's aide improperly used County property and equipment for personal or campaign purposes and improperly engaged in a personal or business relationship as supervisor and subordinate. CHAIR: Board members, just to clarify. This petition is quite involved, and there are several allegations contained therein. Again, to reiterate, this is an initial review for us. What I'd like to do is to have this Board take a look at what we've received thus far and then make a decision whether or not we want to move forward and schedule an informal hearing at a future date, or the other option would be to dismiss. If we do decide to schedule this for a future informal hearing, I'd like you guys to keep in mind what additional information you'd like to request from the petitioner or the respondent. It's my understanding that the respondent is not here today, nor is their counsel present. So I just wanted to show a reason why we need to take a look at what we have thus far and decide what wed like to schedule in the future, if anything at all. Ms. Robert, if you could come up, I'd appreciate it. Now again, to reiterate, we have your petition and the accompanying letter to Corporation Counsel and whatnot. But if you could for our purposes briefly go through the basis and nature of your petition. ROBERT: Yes, my name is Toni Robert. I filed the petition because at a council meeting the Thursday before the date of the petition, during a break, I had approached Councilwoman Naeole to inquire whether or not she needed any assistance, because I knew that the staff that she had was no longer in the office they were on an extended I vacation. And we had been working on a joint project that the council had approved, and I wanted to know if she wanted me to assist her so that that project wouldn't slow down, because I was part of that project. And she informed me that she had in fact brought in two volunteers to work in the stead of the two that she had in there. And one of them was her campaign manager, and I was ignorant of the county's regulations with regards to that, but it seemed like it was an inappropriate introduction into an office that I already knew took some time in dealing with campaign measures while in the office. And so I took the time to contemplate what best to do. I sought the advice and also knowledge of a few people over the weekend, and then on Monday, as soon as I could come in, I spoke with the court clerk, Mr. Goodenow, and asked him for elucidation on the policy. And he said, actually, there is nothing wrong with the volunteer being the campaign manager, and also that it would not be wrong even for a county employee to work on a council person's campaign, as long as it hadn't been done in the office using any of the equipment, etcetera, etcetera. And so when I left, I knew that I needed to make a decision whether to bring forth the information that I knew or not, and my conscience would not allow me to continue just turning a blind eye to the situation. So I sat down and I composed the ethics addendum that you have, as well as filled out the paperwork. I actually was at the first campaign committee meeting that Ms. Naeole held in her home with all of her volunteers, and I was at every single committee meeting thereafter in her home, and I was responsible for much of the P.R. I actually took direct responsibility for her Face book page, and also contributed to some of the materials that would be later used on her website. And I was asked to do a P.R. piece, not for her campaign but for other things, so I actually did some writing for her on other associated matters. However, I do keep emails, copies of all emails that I initiate or receive, and so I was able to go back through my email to determine exactly how much had been done via the county computer systems, and I have here a copy of the emails that I reference in my addendum. I have one that I have I don't have the body of the text well, actually I do, from Ms. Kupahu to Mr. Armstrong with the Hawaii Tribune - Herald, where she asks for a copy of a campaign questionnaire because she claims Ms. Naeole was the only person who hadn't received it. I also have an email that shows that the brochures that I designed for her were ordered from my email to OfficeMax, with directions that she or her campaign treasurer, Ms. Kupahu, would go in and pick up those brochures. And the reason that that's part of this documentation but not necessarily part of the addendum is to give you a basis to understand that after the brochure, one thousand copies of which were printed, a statement was missing that I hadn't been told needed to be put on the brochure. And it's the disclaimer that the brochures are paid for by the Friends of Emily I. Naeole- Beason and the address. So those thousand brochures had to have those labels, those printed labels, put on each one of those. And some white -out was done on brochures that had corrections, typo corrections, that needed to be done. So we had a thousand of those. Over a period of two days after those brochures were printed and into the office, and some of the labeling done, an altercation happened a verbal altercation happened between the volunteer staff andMs. Naeole with regards to the fact that the brochure hadn't been reviewed by the volunteer staff. And this happened in the office. I was not present for it, but I was told directly by the person who was on the receiving end of that altercation. And that person left at the end of her day and did not return to work for three weeks, trying to get over the situation. And when she called me to tell me what happened, I said to her, this was all the discussion about the brochure in the office in front of other staff and volunteers? And she said yes. And her partner agreed that it 7 happened as well. So that is something I did not add to my addendum, because I did not want this staff member to experience the barrage of questions and undergo the heat that I've undergone by bringing this forward. In addition, I have proof of the allegations that I made that for Facebook, Ms. Naeole at a campaign committee meeting gave me a set of pictures that she wanted me to post on her Facebook, and I agreed to do it when I got home. I didn't realize at the time, but I did not know any of the people in the pictures. So the next morning I contacted her to ask her to meet with me in town so that I could get the names of the people for the captions on the pictures, and she referred me to her secretary, Ms. Kupahu. And I said okay, but this is campaign stuff, and so she said please just email her secretary. So I had to call the office to get the email address, and I got it, and I have the proof of that email right here, my solicitation for the names and Ms. Kupahu's response from the county's email to that. And this was nothing but campaign business, and it happened from the office via the computer. That is the premise. There are other things that other people know that could come forward to verify other things that happened in the office. Obviously they're not comfortable doing that, because they're employed or they're in the office working. But this is what I know, right here. And this is the proof that I have. CHAIR: Okay. Thank you, Ms. Robert. Again, we 're just doing an initial review now to see if the Board would like to take this to the next step, which would be holding an informal hearing. Board members, questions? LUM: I have a question. You mentioned a brochure. Do you know where or when those corrections, those labels, were do you know anything about what is that part of this, where those corrections were done? Or it's just ROBERT: - -Some of them were done in the office. I wasn't present, I didn't see this, but UM - -So you don't really do you know ? ROBERT: Well, the person that was doing the corrections told me who was working on them, and she works in the office. L UM: Now, is she a volunteer? ROBERT: Yes. Yes, she is, but the secretary was also working on them, and she's not a volunteer. And then she brought them home and finished them at home. But they were started in the office. CHAIR: The Board members, questions? HEAUKULANI: Mr. Chairman? CHAIR: Yes, sir? HEAUKULANI: I move that we take this to the next level, which is informal hearing. CHAIR: It would be to schedule an informal hearing at a future date, our next meeting. HEA UKULANI: At your pleasure, Mr. Chairman. ROBERT.- May I ask a question? I've been unable to determine whether or not this body has the ability to compel someone to come forward. And if you can, or if you have that authority, I would like to give you a list of names of people to compel to come forward so that they may testify to the validity of the things that they know that I've covered in here. CHAIR: You can submit anything you want to the Board. ROBERT.- Okay. BALSIS: I second that motion. CHAIR: Discussion on the motion? The motion again is to schedule an informal hearing regarding Petition No. 2010 -09. Any discussion by the Board? One thing, Ms. Robert. Looking at what we've got so far and listening to you today, a lot of the instances where you said you think there might be some conflict and violation of the Code, is somebody told you that they saw this and whatnot. So the more solid evidence we have and the more clear instances that you're alleging tookplace, the better. So go ahead and you can submit what you'd like to us. ROBERT.- Okay, but that doesn't answer the question. If I submit to you a list of names of people who would be able to verify that, would they be compelled to come, or is that something that you have to investigate outside of this hearing? CHAIR: No. ROBERT.- The reason I ask is because I don't I don't have the authority to compel them to come forward. And I understand their need to continue to work in their environment, but justice is justice. CHAIR: Counsel? SCHOEN: Mr. Chair, your rules do provide that the Board may request the presence of any person it wants through any documentation. You can also direct someone to provide information or obtain information for this Board. CHAIR: Does that help you? HEA UKULANI.• Question, question. That's only at the investigation or formal hearing stage, or are we still at subpoena duces tecum at the informal? SCHOEN: Well, my understanding is that the Board is looking at this the motion on the floor is for informal hearing. So in an informal hearing, it's informal. So we're not at the formal stage where witnesses 0j HEA UKULANI: - -can be subpoenaed SCHOEN: - -could be compelled, there would be cross- examination, and a more formal type of administrative hearing. And that's not what is present and on the table before this Board right now. HEA UKULANI: Thank you, counsel, you answered my question. BALSIS: I have a question for you. When you received instructions to go ahead and email the councilwoman's secretary, where you given the email address of the County of Hawai `i? ROBERT.• I didn't know her secretary's address, and she told me to call the office and get it. And I called the office and I spoke with the secretary, and she gave me her address. And I have that email. BALSIS: And did that spark anything, like why should I email you at your office address, at that time? ROBERT.• No. At that time, and I'll just be very frank with you, while I worked on a campaign for a state rep in 2008 - -it wasn't an incumbent so it didn't have an office to work in, and they weren't part of the tax paying system. I was a novice in this particular area. As things started to evolve, and the staff told me this isn't supposed to be done in the office, then I understood. There was a clear line. To answer you question, at that time, no red flags. Only after the fact there was a red flag. BALSIS: And just out of curiosity. You were the one who put together the brochure ROBERT.• - -Yes, sir -- BALSIS: --for the individual? ROBERT.• Yes, sir. And I don't work in the office. HEA UKULANI: A point of information, Mr. Chairman. I have a motion on the floor. Should we be discussing among the Board and questioning this petitioner, or we should wait for the informal hearing? CHAIR: I agree. Any other L UM: - -I have -about the informal hearing. It's my understanding we're doing the informal hearing on the campaign issues. CHAIR: We're doing an informal hearing on the petition, 2010 -09. LUM: The whole petition, okay. 10 CHAIR: If this motion carries, yeah. Any other questions, concerns, about the motion on the table right now? Okay, all in favor say aye. HEAUKULANI, BALSIS, LUM, HENRICKS, and CHAIR (simultaneously): Aye. CHAIR: Opposed? All right, thank you, Ms. Robert. ROBERT: Thank you, sir. 6. UNFINISHED BUSINESS a. Review draft order dismissing Petition No. 2010 -06, which alleged that the Board, or its members, had a conflict of interest in its handling of a petition. The Chair asked Ms. Schoen whether any further communication from the petitioner had been received, and she reported that he had contacted via email the Board's secretary, who informed him that his petition was dismissed Mr. Balsis said he had a comment on the draft. It stated simply that the petitioner was not present, which implied that he made no effort to be present. However, he had let the Board's secretary know that he could not be present that day and had provided his cell phone number in case the Board had questions of him. Ms. Schoen said she would add that clarification to the dismissal. Motion and vote: Ms. Lum moved to approve the draft dismissal with the clarification requested by Mr. Balsis. Mr. Henricks seconded the motion, and all members voted aye. b. Review draft informal advisory opinion for Petition No. 2010 -07, regarding whether an employee may work part -time as a security guard at a transfer station while also employed as an account clerk with the Department of Environmental Management. Motion and vote: Mr. Balsis moved to approve the draft, Mr. Heaukulani seconded the motion, and all members voted aye. Motion and vote: Ms. Lum moved to go into Executive Session for review of the confidential matters listed on the agenda. Mr. Henricks seconded the motion, and all members voted aye. 11:06 a.m.: The Board left Regular Session. 11:20 a.m.: The Board returned to Regular Session. 11 7. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the minutes of the September 8, 2010, Executive Session. Motion and vote: Ms. Lum moved to approve all five disclosures, and Mr. Balsis seconded the motion. All members voted aye, except that Mr. Balsis and Mr. Heaukulani abstained from voting on their own disclosures (Nos. 1 and 2). 8. ANNOUNCEMENTS The Chair announced the next meeting: November 10, 2010, at 10:00 a.m. at the Department of Liquor Control, 101 Aupuni Street, Suite 230, Hilo, Hawaii. 9. ADJOURNMENT 11:23 a.m.: The Chair adjourned the meeting. Respectfully submitted: Mary E. Crosson, Secretary 12