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HomeMy WebLinkAbout2010-11-10 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION' Wednesday, November 10, 2010 10:02 a.m. to 10:53 a.m. 101 Aupuni Street, Suite 230 (Department of Liquor Control Conference Room) 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 1. CALL TO ORDER The Chair called the meeting to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS The Chair called up attorney Brian DeLima, who had signed up to testify regarding agenda item 5a. CHAIR: Go Ahead, Mr. DeLima. DeLIMA: I'm here also for that Sa, which is the Board of Ethics proposal. I've previously provided written testimony to this Board on that Bill 230, and I've also testified in front of the council. My position is the same. There is ethics provisions that already prohibit self - dealing, and it also prohibits any conflicts of interest. And I think the real question is what is Bill 30 [sic] in terms of the provisions that I've spoken about, in terms of prohibiting county employees from that have a controlling interest from contracting with the county. What is it intending to do? And the Board of Ethics proposed some amendments. We really didn't have any quarrel with the amendments that the Board of Ethics proposed. What we did was have a quarrel with Bill 230 as it was originally proposed. I think the unintended consequences is that it prohibits employees who may be independent contractors or who receive stipends and contributions to county employees from being able to do things such as swimming lessons or ukulele lessons or hula lessons. The special duty police officers are all independent contractors. The county actually makes money from contracting out special duty police officers. The checks from the companies do not go to the county but actually go to the individual independent contractor police officers. That maybe prohibited under the ' Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech. language of Bill 230. I think the Board of Ethics proposal provided for made it clear that wasn't what the intended purpose of Bill 230 - -was so intended. As such, we believe that any laws that are drafted to serve the public interest must have a rational basis for such a law. Particularly in tough economic times, the more competitive bidders there are, the better. The competitive bidding process saves the county taxpayers millions of dollars. Existing law prohibited self - dealing and conflicts of interest, so inclusion of new language in the prohibition of Bill 230 cannot be viewed as solving any specific problem, particularly when bids are sealed. And that's my testimony. There were no other statements from the public. 3. APPROVAL OF MINUTES Minutes of the October 13, 2010, Regular Session. Motion and vote: Ms. Lum moved to accept and file the minutes, Mr. Henricks seconded the motion, and all members voted aye. 4. NEW BUSINESS There was no new business. 5. UNFINISHED BUSINESS a. Further discussion regarding 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. Includes Communication No. 2010 -075 from Debbie Hecht and Communication No. 2010 -077 from Council Member Onishi. The Chair reported that he met with Mr. Onishi last month regarding the bill, at Mr. Onishi's request. Pursuant to the Board's October meeting, he informed Mr. Onishi that he and the rest of the Board members essentially felt that their initial response to the proposals was clear. The Chair asked the newer Board members whether they felt there should be changes or amendments made to the response. Both Mr. Balsis and Mr. Heaukulani said no. Ms. Lum stated that when they had previously studied the proposals, they spent a lot of time and deep thought on them, and also solicited public testimony. She was completely satisfied that what they came up with in their response was what they agreed upon. 2 Mr. Henricks said that his suggestion at the previous meeting, about having questionable contracts reviewed by a third party, was made as a sort of compromise, as he felt the bill was too stringent. The Chair said the bill would be on the council's agenda for November 17, 2010. It was in the council's lap and would be their business now. He suggested that in the Board's response to Mr. Onishi's letter, they reiterate their belief that the bill is flawed, based upon their previous response. The other members agreed. Motion and vote: Ms. Lum moved that the Chair write a letter to Mr. Onishi, stating that the Board disagreed with the bill based upon their previous opinion. Mr. Henricks seconded the motion, and all members voted aye. The Chair instructed copying the rest of the council on the letter. b. Informal hearing on Petition No. 2010 -09, 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. Present were Toni Robert, the petitioner; Emily Naeole, the respondent; and Brian DeLima, Ms. Naeole's attorney. CHAIR: Ms. Roberts, could you come up real quick? I'd like to reiterate for everyone here and the rest of the Board that at our last meeting, we agreed to hold an informal hearing. This is an informal hearing. We don't have the power to subpoena people. And we're looking at the specific petition, 2010 -08 I'm sorry UW: --09 CHAIR: - -thank you, specifically to Sections 2 -83(a) (1), (a) (2), (b) (3), (b)(5), in the County of Hawai `i Code of Ethics. Just to recap, Ms. Roberts. There are essentially three allegations in your petition under Section 2 -83, Fair Treatment. One, that there were t- shirts and bags ordered at the direction of Councilwoman Naeole that were campaign - related. Two, that there was regarding Fair Treatment that there were some incidences where Ms. Naeole was treating Ms. Kupahu in an inappropriate way in your opinion, correct? ROBERT: I wouldn't say it was inappropriate. It was just typical. CHAIR: Okay ROBERT: --I can say inappropriate CHAIR: - -but in violation of the Ethics Code ROBERT: - -Yes, um hmm. CHAIR: Okay. And three, using county time, equipment, and/or other facilities for private, business, or campaign purposes, regarding the uploading of photos onto a Facebook page. Essentially that's it in a nutshell, right? ROBERT.• Okay. CHAIR: So Board members, I'm looking at those three specific allegations being contained within this petition. And if you have any others that you feel need to be added, or I think I'd like to kind of focus on those three and decide whether or not we find these things in violation of the Ethics Code. Counsel? I just want the record to show that you did provide us with some additional emails, correct? ROBERT.• Um hmm. CHAIR: Dated August 19`h, July 10`h. Did all the Board members receive those? HEA UKULANI: Yes. CHAIR: Board members, do you have any specific questions for the petitioner? Just a question, is Gwen here today? Gwen Kupahu? No? NAEOLE: No, she's sick. CHAIR: Okay. NAEOLE: She's been out of work since Monday. CHAIR: Okay. HEA UKULANI: Well, I have a question, Mr. Chairman. CHAIR: Yes, please. HEAUKULANI: I don't see anything here that I was provided that shows Councilwoman Naeole did anything that violates the Ethics Code. Did I get everything? Do you have anything toI want to question the petitioner. Do you have anything to show that Councilwoman Naeole violated all I have is emails, your say so —other than your say so? ROBERT.• Well, unfortunately, I don't have the power to compel the individuals that did that to be here, and one of them is out sick today and isn't here. Ms. Naeole is here, and you can ask her if she made the directions, the statements, that her staff use their email to—for campaign purposes. HEAUKULANL• No, that's not how it works. I'm asking you. ROBERT.• Okay, well I have provided you the proof that her email accounts from the county were used for campaign matters. I have also provided the my personal rd testimony from my personal presence at the meeting where Ms. Kupahu was directed to go immediately in the next morning and order the shirts and the bags. I wasn't there to see that the call was made there. I wasn't present for the discussion. I only know that that direction was made. The shirts and the bags arrived, and I was thereto see hear the direction, and I saw the shirts and the bags. Now there 's testimony that that all happened off -site, except for the check for the shirts was picked up at the campaign at the district office. That person also can't be compelled to be here by me. So I can tell you I have pieces, but I can't compel anybody to come here and testify. I am bringing this as a taxpayer. I am bringing this to the attention of the county, that taxpayer dollars were used by Ms. Naeole 's staff for campaign matters in the district office. And that to me is a clear violations of ethics between campaign and District S matters, county matters. I have provided you with email to that effect. Now again, I can't compel anyone to come forward. You can askMs. Naeole. She claims she doesn't tell lies. She should be compelled to be able to tell what she knows. I can't compel her. I can't compel her staff. HEA UKULANI: Do you know that I can send emails from my personal cell phone or my own computer? ROBERT.• Yes, it should have been done that way. HEA UKULANI: Okay. August 161h you sent an email to Gwen, if I could I'm using this information here, yes? ROBERT.• Um hmm. HEA UKULANI: And she responded to you on August 19. Gwen, not Naeole. ROBERT.• Well, I was directed to get the information from the photos from Gwen by Ms. Naeole because I did not know the individuals in the photos, and she was not in the office. She said contact Gwen and have her take care of it. When I had to get Gwen's email to contact her, I sent her the request, which is right there in her response to me. That was done by direction by Ms. Naeole. I didn't just send it to her to do that. HEAUKULANI: Well why didn't you raise the issue on August 16 that I shouldn't send this to you, because this is a county email? ROBERT.• I'm sorry? HEAUKULANI: Why didn't you notify Gwen that shouldn't send this email to you, because this is a county ROBERT.• - -Why didn't I do that? CHAIR: Well, hold on. Now just for the benefit of the doubt, I think Ms. Roberts is a private citizen and the knowledge of requirements surrounding campaign and use of county funds and things like that all county employees are reminded every year. So I think it's unrealistic to ask Ms. Roberts to know what the HEAUKULANI: - -Well Mr. Chair, I don't see Naeole's name on this email CHAIR: -- That's one thing that I agree with, is that I see Ms. Kupahu's name on this email. And whether or not that was at the direction ofMs. Naeole or not, I don't know. But we're here to address allegations against her specifically. ROBERT.• Okay. CHAIR: And we need to remember that. HEA UKULANI: No further questions. CHAIR: Now most of what we were just talking about, David, is pertaining to the third item in the petition that we brought up. I think that was the Facebook with the photos, when you were identifying ROBERT.• - -Yes, sir CHAIR: - -the people and whatnot. Okay. Let's move back to the first one, if we would, Ms. Roberts. The t- shirts and bag. It's my understanding that you heard Ms. Naeole give the directive to Gwen that when she gets back to the office ROBERT.• - -When she gets in the next morning. CHAIR: Okay, take care of that order. You weren't there. Did you see Ms. Kupahu execute those directives? ROBERT.• No, sir, that's why I said I don't know that she did that, I wasn't there. CHAIR: Okay. Any questions on that first allegation? The second allegation, regarding fair treatment, if I might just state my opinion on this. And it's a very subjective matter. It's something that I think needs to be, and can only be, answered by the person that was subjected to that treatment, and whether or not it classifies as unfair treatment. This is not the first time hopefully it's the last time this Board has heard allegations of unfair treatment and whatnot, but it's difficult for us to rule on something like this when it's so subjective. I don't know what else to say about that. L UM: Well, and when the person that actually was CHAIR: -- received the treatment UM -- receiving it is not the one -I mean, we are allowed to bring a complaint on behalf of somebody else, but when it's fair treatment, I agree with John. It's very, very difficult. It's a difficult provision in the Ethics Code, but I'm rather fond of it myself, that we have a county that wants to embody fair treatment and that it's an ideal to reach for. But without the person saying this is how I felt and this is how it affected me and this is how it happened in my life I think it is difficult to do it for somebody else. I CHAIR: Okay. Board members, any other questions regarding the second allegation? BALSIS: Not for me. CHAIR: Okay, before we move on to the let me ask Ms. Naeole a few questions. Just to recap the third one. David, you expressed your opinions regarding the email chain. Any other questions on the third allegation? ROBERT.• May I speak just for a second? CHAIR: Sure. ROBERT.• On the page that is regarding the campaign questionnaire, the email from Ms. Kupahu states clearly, Councilwoman Emily Naeole- Beason talked to me regarding the candidate questionnaire form. Emily said she is the only candidate who hasn't received or hasn't something mailed the form to the Tribune - Herald. Is it possible that you email the form tome. That is and it's sent from her address to the Tribune - Herald. That is direction right there. Now she said she talked to her. She doesn't say she directed her to call, to contact the Tribune - Herald. CHAIR: Well, you just conflicted yourself. You're saying it's directed right there ROBERT.• - -But it says right there, Councilwoman Naeole- Beason talked to me regarding the candidates' questionnaire form. What is the purpose of the email but to request another copy of the questionnaire form? From the county office, not from her personal email. CHAIR: Okay. ROBERT.• Finally, I'll just tell you I will admit that I was naive in thinking that bringing the case forward without written testimony by those who were directly affected is folly on my part, but I did speak to one of the individuals that I had asked, that I wanted to be here today, because she was so adversely affected by unfair treatment in the office it required that she take two weeks off afterwards. But because she still works in the office and has deference to that, she didn't feel comfortable coming here, and I can't compel her to be here. So FYI, whether you decide you can't do anything with this or not, it is an issue. The county is aware of it. Their boss, Mr. Goodenow, is aware of it. So it's not just me. Other people are aware of this. And that kind of bullying tactic about campaign matters in the tax payer's office is unacceptable. I don't care how many campaigns she's run. It's unacceptable. And that's why I did this, because that person didn't deserve that treatment. And at that moment I decided I could no longer support this. CHAIR: Ms. Roberts, let me make one thing clear no matter what this Board decides today, is that I appreciate you coming to us. And I know that many people in our community suffer from worry of retaliation and whatnot by bringing up things that they feel are unacceptable. Unfortunately, our Board has to only respond to petitions 7 ROBERT.• -- Right, I understand that. CHAIR: And I applaud you for being brave enough to stand up and bring something that you feel is wrong to this Board. Any other questions on item number 3? L UM: Well, I do think that how long an email took and when it was done it was done at 2:34 on whatever the 19`h was, from a county office whether she could say she was on her coffee break or I'm thinking it's hard. It is hard. There is an email here that came from a county office regarding campaign matters at 2:34 in the afternoon on the 191h HEA UKULANL• A point of information. L UM: What? HEAUKULANI: This doesn't tell me it came from a county office. I can do this from my home LUM.• - -I mean it's a county email CHAIR: Furthermore, it's not coming from a person that's named on this petition. HEAUKULANI: Yes, it's comingfromGwendolyn. L UM.• So it's a very CHAIR: Anyway, Ms. Roberts, I appreciate your time. ROBERT.• Thank you. CHAIR: Ms. Naeole, Mr. DeLima, could you guys come up, please? From our previous discussion, you kind of understand what we're trying to look at, these three different pieces of the petition. DeLIMA: I want to first make some general comments. I did, on behalf of Ms. Naeole, submit a written testimony prior to your last meeting which basically CHAIR: - -dated October 12`h, 2010 DeLIMA: --yes, which generally addresses, in a general way, the comments that were in the petition. I do want to indicate that I think Ms. Roberts being present during a period of time where she was able to listen and observe Ms. Naeole is very telling, because it is very helpful in dealing with the overall allegation. And specifically, it is this. At no time does Ms. Roberts indicate that Ms. Naeole ever told anyone to use county equipment or county personnel for campaign purposes. What she indicates to you is that when Ms. Naeole was at a campaign meeting at her house, she instructed another campaign volunteer, who also happens to be a staff person, to go order t- shirts, etc. Now, Ms. Roberts says she said, first thing tomorrow morning, when she goes to the office. Whether that was articulated or not, the point is she never said go use campaign materials or go use the county phone or county offices for campaign purposes, or send out an email for campaign purposes. That was never done. And obviously, ifMs. Naeole made any of those kind of comments, it would be forefront of her petition, which she filed several weeks later, after these allegations were supposedly made. We think it was done for political purposes, but nevertheless, Ms. Naeole did not ever instruct anyone to do anything in regards to campaign resource the county resources for campaign purposes. Now, we haven't seen the emails, but we assume that it is as you purport it to be, that one of her staff persons may have inquired about receiving a questionnaire. And I kind of indicated I indicated quite clearly in my letter of October 12`h that such a process would be improper and should not be done. You shouldn't be using the emails. And I also recognized that every year people are told don't use county resources, county telephones, and county emails. AndMs. Naeole recognizes that's done every year to all the staff people. We're not supposed to use county resources for campaign purposes, and we think that needs to be done and made clear, because it may have been viewed you know, when people start using their emails and use the telephone every day at work, they may not view that as a campaign, as a resource, if they make a phone call or they make an email. I think we should be very explicit and clear that that also should not be done. You may have recalled there was a story done by West Hawaii Today several months ago about how councilmembers was responding to letters, and suggested that that may have been a form of campaigning, in terms of responding to inquiries from various constituents. Ms. Naeole wants to make it clear that she never directed Ms. Kupahu to make a send an email by county resources. But Ms. Kupahu works for her, and she's not about to throw Ms. Kupahu under the bus. And she takes responsibility for Ms. Kupahu's misuse of that email. She should have made it clear that she should not have used the email and accepts responsibility for any actions done by Ms. Kupahu. Ms. Kupahu has been a hard worker for Ms. Naeole. She does not believe that Ms. Kupahu intended to use the resources in any wanton or willful way. It may have been negligence on her part to not recall the instruction of the letter. But we don't want you to think that in any way Ms. Naeole had any malicious intent by not reminding her staff people that they should not have used the email, as Ms. Kupahu obviously did in inquiring of the newspaper about that questionnaire. CHAIR: Okay, thank you, Mr. DeLima. I have a quick question regarding that email. DeLIMA: We haven't seen it, but CHAIR: - -Yeah, yeah. Well, it's addressed to Jason Armstrong at Tribune - Herald from Gwen. Mr. Armstrong, do you recall that email? Have you seen that email? ARMSTRONG: Mr. Chairman, as a reporter for the Hawaii Tribune - Herald, I'm here as an observer to witness what action the Board takes, and I feel uncomfortable participating in the process. CHAIR: Participating in the process includes answering one question? DeLIMA: I'm wondering how anybody got this email if it was only between Jason Armstrong and Gwen Kupahu, but that's typical of Jason. 0j CHAIR: Well, the point I'm trying to make is that it's Ms. Roberts did bring up the fact that in her opinion, this email is a directive to Gwen from Emily, or Gwen is saying there is a directive of some sort from Emily Naeole, without stating that specifically. And she said if possible, can you email the form to me. I assume it's regarding that form on some special you guys did regarding all the candidates. But it looks de minimis for the activity for the allegation. DeLIMA: Well, why don't we say this. Emily did not direct Gwen to go and use the county email to get the questionnaire. Obviously Gwen did that, and Emily is not going to say that she's not going to say that somehow Gwen should be punished for that or criticized for that. She's a staffperson. But to us, Emily is willing to accept responsibility for that. Period. CHAIR: Okay, Board members, do you have any questions or comments regarding the three parts of this petition? HEA UKULANI: Mr. Chair, I made the motion in the last meeting to take this to the informal level, because I wanted to see evidence. And I don't see the evidence, but we have something against a staff member. I'm of the persuasion to sever Naeole from this procedure against Kupahu. If we have a do we need a petition to proceed against a staff member? I don't know the process. CHAIR: Well, what we're dealing with right now is Petition No. 2010 -009, which names Councilmember Emily Naeole. So that's what we're dealing with. We're not dealing with any other petition. Counsel, do you have any specific rules you want to cite? SCHOEN: Actually, Mr. Chair, I believe the petition allegation is against both Ms. Naeole and her secretary. HEAUKULANI: Officer and employee. SCHOEN: Yeah. DeLIMA: Well again, we would urge that it be dismissed because we don't think it rises to the level of any wanton or willful conduct or violation of any ethics rules. HEAUKULANI: I'll make the motion to dismiss, for discussion. CHAIR: Okay, we have a motion on the floor to dismiss the petition, or to dismiss Petition 2010 -09, based on lack of evidence, or anything specific? No? HEA UKULANI: No evidence against the officer. CHAIR: Okay. Discussion? Or do we have a second? HENRICKS: Has a motion been made? 10 LCM: Yeah, he made the motion. HENRICKS: What is the motion? CHAIR: To dismiss Petition No. 2010 -09. LCM: Lack of evidence. HENRICKS: I second it. CHAIR: You second it? Okay, discussion for the Board? HENRICKS: All right, can I say something? I'm down to two points. I'm down to one phone call and one email. Is that correct, that we're in CHAIR: - -Well, right now the motion on the table is HENRICKS: --for dismissal CHAIR: --yeah, I know, but the whole petition. Yeah. HENRICKS: Okay, in my mind I'm down to one telephone call and one email, and both of these are Ms. Kapuhu. L U11 : Kupahu. HENRICKS: Kupahu, Kupahu, okay. The thing that bothers me is that well, that I noticed first of all Ms. Naeole is willing to take responsibility for it, but it's Ms. Kupahu that did it. And so we don't know what the overall policy in the office is, but if you had to take it down to narrowest forms, you'd have to figure Ms. Kupahu is working in a mixed world. She's not only working as a campaign worker, but she's also working as office staff, so all this time she's worked Both the email and the telephone call were not initiated by her. These are responses by her. What happened that I can see is that someone wrote in to her in the office, using both the telephone and an email, and she was sitting there and received the messages in the office. So her initial response would be to answer those messages so she would not forget that she got them. So I think that's exactly what she did. She responded to two messages that came in. I can only assume that one of these messages was from Mr. Jason Armstrong, and the other was from someone else. But my feeling is she responded. And this is an initial response for anybody to do in the office, is to respond to something that comes in. And that, she did respond. So I find that if you really get down to the nitty - gritty, there may be a technical violation by making a response, but it's really a minimal violation at this point. And that's the way I would have to look at it. ROBERT: Except that she initiated the email a response. CHAIR: We've got a motion on the table and discussion amongst the Board. Just a reminder. Any other - ? 11 L UM: I agree. The response actions technically CHAIR: Well, I think the main thing right here is L UM: - -a human reaction. CHAIR: Correct me if I'm wrong, but we have the petition, 2010 -009, on the floor, making these three allegations, specifying Section 2- 83(a). IfMs. Kupahu were here, I think we would have a much better chance to answer some of the questions that the Board has about specifics in time, whether or not she was on a coffee break or lunch break or whatnot. And then also the subjectiveness of the situation regarding fair treatment. Without that being present here today, I don't know how we can base any kind of finding of a violation of these Ethic Code sections. So if there's no further discussion between the Board on the motion on the table we have a motion and a second all in favor say aye. L UM, HEA UKULANI, HENRICKS: Aye. BALSIS: Aye. CHAIR: Okay, aye. Okay, motion carries. Thank you. Ms. Schoen informed the Board that she will prepare the findings of fact and conclusions of law for the informal advisory opinion and will incorporate what the Board discussed, including Mr. Henricks' concern about the violations being de minimis. Motion and vote: Mr. Balsis moved to go into Executive Session for item 6 on the agenda. Ms. Lum seconded the motion, and all members voted aye. 10:43 a.m.: The Board left Regular Session. 10:50 a.m.: The Board returned to Regular Session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the minutes of the October 13, 2010, Executive Session. Motion and vote: Mr. Heaukulani moved to approve the minutes, Mr. Balsis seconded the motion, and all members voted aye. b. Review draft informal advisory opinion for Petition No. 2010 -08, regarding whether an employee may work part -time as a marriage and family therapist in private practice. This matter was voted upon in Executive Session. 12 C. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2- 911(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Motion and vote: Mr. Henricks moved to accept the financial disclosure, Mr. Heaukulani seconded the motion, and all members voted aye. 7. ANNOUNCEMENTS The Chair announced the next monthly meeting: December 8, 2010, at 10:00 a.m. at 101 Aupuni Street, Suite 230, Hilo, Hawaii. 8. ADJOURNMENT The Chair adjourned the meeting at 10:53 a.m. Respectfully submitted: M.ry asuo, 3er�ebrr 13