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HomeMy WebLinkAbout2011-12-07 Board of Ethics MinutesHAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, December 7, 2011 10:00 a.m. to 10:30 a.m. Department of Liquor Control – Conference Room 101 Aupuni Street, Suite 230 Hilo, Hawai‘i 96720 Members and staff present: John E. K. Dill, Chair David Heaukulani, Vice Chair Arne Henricks, Member Bernard Balsis, Member Glen Hisashima, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Fujio, Secretary Also present: Stan Sitko Kyle Chang 1. CALL TO ORDER 10:00 a.m.: Mr. Dill called the meeting to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF AUGUST 10, 2011 Motion and vote: Mr. Heaukulani moved to accept the minutes, Mr. Henricks seconded the motion, and all members voted aye. 4. NEW BUSINESS a. Petition No. 2011-09: Petition alleges a violation of Section 2-83 (Fair Treatment) of the Code of Ethics by the Real Property Tax Division of the County of Hawai‘i. MR. DILL: Do we have anybody here for that? MR. SITKO: Yes. MR. DILL: Do you mind coming up and introducing yourself, sir? MR. SITKO: Stan Sitko, Real Property Tax Administrator. MR. DILL: Are you here as well for that? Go ahead. (Kyle Chang got up to sit by Mr. Sitko.) MR. DILL: Just to clarify for the board and everyone here, this is an initial review of this petition to see if we will move forward in hearing this. I don’t believe the petitioner is here or plans to attend, right, Mary? SECRETARY: Right, he sent a letter that he couldn’t be here. It’s in your packet. MR. DILL: All right, so if you haven’t already, if you would just take a look at the petition, and we can discuss what this board would like to do. One thing I’d like to point out is that typically, gentlemen, when we have petitions it’s against—filed against a County employee or officer, a person. In this case it seems as if he’s filing the petition against the whole division, so I’m not sure how that works. Do we have any precedent of that, Renee, or anything like that? MS. SCHOEN: In answer to your question, Mr. Chair, the Hawai‘i County Code of Ethics in--Section 2-81 is the applicability section, and it says the article shall apply to every officer or employee of the County, so it makes no mention about a particular—the Code being applicable to a department. MR. DILL: That’s 2-81, you said? MS. SCHOEN: Yes. While you guys are looking at the petition, I wanted to inform the board that I did speak to the petitioner yesterday and wanted to inquire as to whether or not he was going to be here. He couldn’t make it, he had a doctor’s appointment, but he did want me to relay that— MR. HENRICKS: --Can you speak up for me? MS. SCHOEN: I’m sorry. SECRETARY: It doesn’t amplify, that’s just a recording mic. MS. SCHOEN: I’ll talk louder. He told me that he tried to set out the facts of the petition as best he could by the documents provided. He did say that he felt he was treated unfairly by the department, because they did not respond to his request for documents. He did appear at the Tax Review Board, and upon review of his case, they denied his appeal. And then the petitioner informed me that he did not elect to appeal to the Tax Court. Other than that, he just elaborated that he felt he was treated unfairly by the division and that he did not have enough information when he appeared at the Tax Review Board. So I did inform him that the board’s duty today was to review the petition and decide whether or not it would dismiss it, require further information, set the matter for informal hearing or formal hearing. And he apologized for not being able to be here today due to a doctor’s appointment. MR. DILL: So essentially it sounds as if Mr. Housel requested some specific information, was not provided that information, and then he went through the appeals process. The information he had requested was provided to the appeals board but not him, right? MS. SCHOEN: That’s what he indicated to me, and which he said should be reflected in the documents provided to the board. MR. DILL: What was the result of his appeal? It was denied, right? MS. SCHOEN: Yes. MR. DILL: Do you know if it’s still ongoing or this is a closed matter? MS. SCHOEN: I’m not sure, but I believe there’s a requisite time period for which he needs to appeal to the Tax Appeal Court, and he said he elected not to do that. I don’t know if the time period has run for him to appeal. MR. DILL: Do you guys know the status of his appeal, by any chance? MR. SITKO: I believe he did appeal. Now he has appealed for two years, I believe, 2010 and 2011, and he did appeal to the Tax Appeal Court for I believe 2010. Whether—I believe his time has passed for appealing for 2011, if he has not appealed yet. MR. DILL: So he requested calculations, right, basically the calculations that your office based their assessment on? MR. SITKO: Correct, and he was provided with them. MR. BALSIS: Can I ask a question? MR. DILL: Yes. MR. BALSIS: He was provided with them at the hearing, or prior to the hearing? MR. SITKO: It was part of the attachments in my reply. As I mentioned in my letter, his property was valued using the cost methodology, and he was sent the property record card, of which I have a copy here, showing the calculations and showing that he was being assessed based on the cost methodology. No, that is a list of sales that’s provided just before the hearing to the board because they require them. Those were not used to set his valuation. They’re not even comparable sales. They’re just sales in his area. MS. SCHOEN: Excuse me, Mary, could you let the minutes reflect that Mr. Sitko was responding to Bernard’s holding up of the document submitted with the petition that looks like a card indicating values. MR. BALSIS: So one question I do have--was any new information provided to the appeals board or to the complainant—petitioner—at the meeting and not prior to the meeting? MR. SITKO: Regrettably, I was not at that meeting, so outside of the sales spreadsheet, which is not really—what it is is a listing of sales in the area that the board asks for prior to the hearing. I do not believe anything else was introduced. The issue he was appealing, his building value—he was assessed based using the cost approach, and those were the calculations that were given him prior by both Mary Ann Todd Waller and myself. His assessment was based on the cost approach and those calculations. MR. DILL: So on September 15, that letter dated September 15, that’s when you provided those calculations? MR. SITKO: Yes, I did. And I believe Mary Ann also included a copy along with hers. MR. DILL: The hearing date was when? I know you weren’t able to go, but do you know when the-- MR. SITKO: I really would have to look that up myself. MR. DILL: Wait, here we go, October 11. Mary is—Mary is Ms. Todd Waller? MR. SITKO: Yes. MR. DILL: So basically you’re refuting what he’s saying, in that you did provide the information used to calculate his value prior to the meeting. MR. SITKO: That is correct. MR. DILL: And that list that was provided at the meeting was just these comparison prices, just for information purposes? MR. SITKO: They’re for informational purposes only. They actually were never used in establishing his assessment. They are supportive, though, and I did send the sales ratio report, supporting the cost approach along with the PRC to him. What happens is when we do mass appraisal or mass assessment, we value a universe of properties using a model. Those sales only support that model, okay. They themselves could not be used because they’re not even really comparable. MR. HENRICKS: Can I inquire? MR. DILL: Yes, please. MR. HENRICKS: My only interest in this is, you didn’t know him beforehand, right? MR. SITKO: Personally or otherwise? Not really. MR. HENRICKS: But his name has been before you previously? MR. SITKO: Yes. MR. HENRICKS: Since you didn’t know him beforehand, do you feel that there’s any way you treated him any differently than you treated anyone else? MR. SITKO: No, he’s treated identically with anybody else. MR. HENRICKS: That’s the only question I have. MR. DILL: All right, and then we’re also still left with that question about the applicability of the petition to a division. Obviously he mentions several of you in the petition, but his actual petition states that he feels he was treated unfairly, in violation of Section 2-83, by the whole division. Any thoughts from the board, any recommendations for action? MR. HEAUKULANI: Can we defer till the petitioner appears and gives us his side of the story? MR. BALSIS: I have a thought. When I was reviewing the documents, it appears that the contention of the petitioner is that all of a sudden, at the hearing, new information was provided that he was unaware of and he did not have ample time to review it so that he could in turn make a good appeal. That’s the way I read the documents provided. If the information that was provided to the board, which—he saw the item which I held up earlier, it was only for informational purposes—then there was no information provided to the board or anyone else at that time. However, if that information could be used to either support a decision either way, how do you say it? MR. DILL: Support or refute? MR. BALSIS: Thank you. Then it would be that—well, he should have the opportunity to be heard again by the appeals board. That’s my only comment. MR. HENRICKS: All right, the way I see this over all, looking at it from a judicial point of view, this is a discovery matter. When you ask for discovery in any hearing or judicial situation, it’s incumbent upon the other party to give discovery, but it never rises—when there’s a lack of discovery because of difference of opinion, it never rises to the idea of an ethical violation, though. It’s just a matter of disagreement between parties as to what should be discovered or not discovered. As to recourse, if any person before any board that goes up there receives a document late, all they have to do is ask for a continuance based on the fact that they received that document late. And any board any place will grant you that continuance, because if they don’t, they’re in error. Because if he received that thing at the last minute, he thought it was important to his appeal and he couldn’t go forward because it was given to him late, all he had to do is just “I’m not ready, I want a continuance.” And they would have granted it, or else they would have been in error. So I don’t see this as an ethical violation in any manner, unless—the only time it could become an ethical violation is when you use the words fair and—I think the words they use, fair and impartial manner. Fair and impartial go together, those two words. So what you look for is you look for any discrimination on the part of the department against him for anything he’d done in the past, because they were mad at him, or they felt he was appealing too much, and they discriminated against him for that purpose. Yes, that would have been an ethical violation. But until that point I don’t think so. MR. DILL: Okay. Glen? MR. HISASHIMA: No. MR. DILL: Would anyone like to make a motion? MR. HENRICKS: I’ll make a motion that the petition against the two parties and the department is to be dismissed at this time. MR. BALSIS: I’ll second that motion. MR. DILL: Okay, we’ve got a motion and a second. Any discussion? Vice Chair? Okay, all in favor say aye. MR. HENRICKS, MR. BALSIS, MR. HISASHIMA, MR. DILL (simultaneously): Aye. MR. DILL: Opposed? MR. HEAUKULANI: Me. MR. DILL: Would that be enough? MS. SCHOEN: Yes. MR. DILL: All right, motion carries. Thanks, gentlemen. 5. UNFINISHED BUSINESS (None) Motion and vote: Mr. Heaukulani moved to enter into executive session for the confidential matters under agenda item 6. Mr. Hisashima seconded the motion, and all members voted aye. 10:20 a.m.: The board left regular session. * * * * * 10:29 a.m.: The board returned to regular session for voting on the executive session matters. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the Executive Session minutes of November 9, 2011. Motion and vote: Mr. Balsis moved to approve the minutes, Mr. Heaukulani seconded the motion, and all members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawai‘i 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 approve the four financial disclosures, Mr. Hisashima seconded the motion, and all members voted aye (with Mr. Henricks abstaining from voting on his own financial disclosure). 7. ANNOUNCEMENTS Mr. Dill announced the next meeting: January 11, 2012, at a location be determined. 8. ADJOURNMENT Mr. Dill adjourned the meeting at 10:30 a.m. Respectfully submitted: Mary E. Fujio (with her signature), Secretary