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HomeMy WebLinkAbout2012-09-12 Board of Ethics minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, September 12, 2012 10:02 a.m. to 11:37 a.m. County Council Chambers Hilo, Hawai‘i 96720 Members and Staff Present: John E. K. Dill, Chair Arne Henricks, Member Bernard Balsis, Member Glen Hisashima, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Fujio, Secretary (Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech.) 1. CALL TO ORDER Mr. Dill called the meeting to order at 10:02 a.m. 2. STATEMENTS FROM THE PUBLIC Mr. Dill announced that written testimony regarding Petition No. 2012-03 had been received from several parties: The League of Women Voters, Richard Kleit, Bev Stehley, and James and Helga Hans. Mr. Dill called up Helen Hemmes, who had signed up to testify regarding Petition 2012-03, and reminded everyone that public testimony was limited to three minutes per agenda item. MS. HEMMES: Good morning, Mr. Dill, Chairman, and members, the Board of Ethics. My name is Helen Hemmes. I’m a member of the League of Women Voters of Hawai‘i County. I would like to read our testimony for the record. The members of the League of Women Voters of Hawai‘i County support good governance. We also support employees’ right to organize and citizens’ participation in government. However, the League does not support using government resources, facilities, equipment, and labor, funded by taxpayer dollars, for campaign purposes. As reported in the West Hawai‘i Today on August 1, 2012, and in the Hawai‘i Tribune-Herald on August 2, 2012, a violation of county and state codes of ethics allegedly occurred when government employees attended political campaign meetings during work hours at county facilities. The meetings reportedly occurred on four dates in July 2012 at four locations. These meetings were a violation of the Hawai‘i County Code of Ethics, Article 15, Section 2-83, Fair Treatment: (b) No office or employee shall use or attempt to use the officer’s or employee’s official position to secure or grant unwarranted privileges, including but not limited to the following: (3) Using county time, equipment or other facilities for private business or campaign purposes. It was also reported that some meeting attendees, afraid of retribution, were discomfited over being lobbied to vote for specific candidates. The purpose of a code of ethics is to promote a high standard of conduct in government. The League of Women Voters of Hawai‘i County encourages the Hawai‘i County Board of Ethics to enforce Article 15, Section 2-83, of the Code of Ethics and prohibit the use of county facilities for campaign purposes. And this is submitted by our two co-presidents respectfully, Donna Oba and Margaret Drake. Thank you. Mr. Dill called up Cheryl King, who had signed up to testify regarding Petition 2012-03. MS. KING: Good morning. As you know, my name is Cheryl King. I live in Kailua- Kona, and I’m the one who submitted this petition. I believe that the county should promote fair political campaigns and elections and ensure that politics does not enter the workplace. Releasing county employees with pay to attend a meeting during which campaigning takes place violates this principle, as well as the Hawai‘i County Code, which clearly states that county time, equipment, or other facilities should not be used for campaign purposes. It is my contention that because these county employees were still being paid their hourly wages when they were released to attend this meeting, they were on county time and should be expected to adhere to the County Code of Ethics. I understand that because of the union contract, these county workers were not breaking any laws by attending a union meeting on county time. That is not the issue. The issue is that they broke the ethics code by attending an event at which campaigning took place, and as county employees, they granted unwarranted privileges to selected candidates who were invited to attend, and they discriminated against the candidates who were not invited to attend this event. County employees who had to listen to the campaign speeches, willingly or unwillingly, were not treating all candidates in a fair and impartial manner as required by the County Code. I felt very badly for the county employees who did not want to have to listen to campaign speeches by union-endorsed candidates they themselves did not want to endorse. It was unethical for them to have been put in this position by both the union and the county, knowingly or unknowingly. It is difficult for them to speak out publicly for fear of reprisals or unpleasantness at work. Unfortunately, I could not find a clause in the ethics code which addressed that situation. I hope that the ethics commission will agree with my analysis that the ethics code has been violated and take steps to ensure that this does not happen again. Thank you. Mr. Dill clarified that the Board would be conducting an initial review of Ms. King’s petition today. He asked her to provide her testimony to the secretary for the record. Mr. Dill called up R. J. Hampton, who had signed up to testify on several items. MS. HAMPTON: My name is R. J. Hampton, and I represent myself. I’m here today because I think today’s agenda is reflective of a serious problem we’re having in our system today. I’m going to first attempt to make some sense of Petition No. 2012-02, and this one has to do in light of strong questionable appearances to the public. Part of ethics is about appearance. I’m here today to say that in the Zendo Kern matter, appearance seems to be very much at issue here. If one was to do the deep reading of what was before the Planning Commission that day on May 3rd, one would say that there was a lot at stake for the community, the new district of District 5. The statements didn’t seem to have what I would consider to be a fair attitude. Quotes like “before we get into it”—as a citizen I find it very disturbing that an individual, especially the chair, would start off the entire meeting by saying “before we get into it,” as if “ladies and gentlemen, let’s get ready to rumble.” It was that day a very emotional day. I believe that it is there that a chair has a responsibility to put a cap on that emotion and to deal with the facts of the case, which were very carefully pointed out by the Planning Commission. I want to tell you, chair, that my feelings that day, being in the minority, that I would say honestly—and if you were to do the deep reading on the entire case, you would come away with the conclusion that I came up with, and I was videotaping--and also a citizen who resides in this district in which the conflict was occurring—from the moment that that meeting started, it was like “ladies and gentlemen, let’s start the engine. I have to be out of here by three o’clock, and I’ve already done as much as I can for the other district that I will soon be representing, so let’s get on with this.” Emotions. Unethical manipulation, begging the question and not finishing his sentence, which was “I checked with Corporation Counsel, and I do not need to recuse myself.” That’s very fine. But then he states with—he says “and no.” No what? Never finished his sentence. No conflict of interest? “Although I’m a friend, although I did sit here, although I been on the commission since 2009, I should be aware of these issues if I had _______.” So I’m going to move on as to how I feel. Appearance. We’re talking moral philosophy here. We’re not talking legalism or criminalism or anything like that. I want you to set the standard, raise the bar, because we got a lot of new people. Now I’m going to pass on to the Yagong, “it’s a silly distraction.” MR. DILL: Okay, so for the record—hold on, for the record, you’re now going to be providing testimony on Communication 4a? MS. HAMPTON: Yes. MR. DILL: Okay. MS. HAMPTON: Thank you. Because I got out of the car and raced in here, I’m hoping I’m making some sense. Our chairperson considers what he is coming here today and what we are considering a silly distraction from more important issues. Again, here’s the bar. Here’s where you ask people who are supposed to judge people’s conduct and behavior, and how it appears to us you are the bar. Here’s where the buck stops. To say that someone in the community bringing a charge forth is a silly distraction from more important things is again begging the question. It’s unethical political manipulation. That’s for you to decide. Now do I know what your job is? Oh yeah, you’re the people who volunteered to say “R.J., I’m going to protect you from the oppression of the majority. And I’m going to protect you from retribution that may come, the reprisals from speaking out about what you believe to be true and what you believe to be the course of this government as they conduct themselves, doing the public’s business.” So I object. And when I read that he considers this a silly distraction, I feel something is amiss, that they’re not understanding, when they took the training in ethics. Now who am I to speak like this? Why, I have a lot of experience. I was legislative aide for Emily Naeole, and if there is anybody who knows what your job is, I have seen you in action. And I applaud your ability to maintain your appearance of stability and equality. That I want to say. Now, the other one, and time’s up—whoo, please here, tell me what the other one was. I got my notes here— MR. DILL: All right, for the record, you will be moving on to the Petition 2012-03. MS. HAMPTON: Yeah, that’s the one about the county employees. Now here we talk about blurred vision. This is where your job is going to be to draw the line. And what’s beautiful about this is we’ve got the press here. And it’s your job today to impress the press on what the ethics commission is about, what your job is, because you call the shots on how our public officials conduct themselves. And my last thing I want to say, as I sum it all up, because I think you get the gist of what this citizen believes your job is—this isn’t to confer criminality charges or to start telling people they’re bad. Yours is to take it. And I remember something that Lincoln Ashida said to me, who I believe gave me, as legislative aide, the gas and the how you say, meter, to know when to not do something. He said, “R.J., use the refrigerator”—I think he said ice box. He said when you go to clean out your ice box, and you have stuff laying around in there for years like friends, other things—businesses, contracts, things like that, associates--what you need to do is sniff every last one of them. If it smells funny, don’t keep it. If it smells funny, throw it out. He says use this. If you have to come to me and ask me whether you should do something—which is what they all should have done, every last one of these people that is here today, ______ the ethics. Don’t do it. For two years I carried that thought. You never saw me, and I think you saw less of my boss, because we got it. And that’s what I want you today to convey to the community, what it means to end up here in this seat justifying your behavior and conduct. And please do not allow these people who come up here that you interrogate or you question, to beg the question or use emotion as their reason and rationality for what it is that they did or did not do. Thank you. Mr. Dill called up Kerri Marks, who had signed up to testify regarding agenda item 4a, the August 31, 2012, letter to the Board from Scott Nago. MS. MARKS: Aloha, good morning. I’d also like to testify on the Petition 2012-03 first, and I’ll be brief on all of them. Asking county employees to attend any sort of campaign event is absolutely unethical and wrong. That’s all I have to say about that. You shouldn’t have to think about that too hard at all. That was terrible. We should smack them for that. As far as the letter goes, about Dominic helping move some boxes around the office, that’s not an ethical problem. That’s a guy trying to help move some boxes around. So that shouldn’t take you very long to figure out, either. And on the Petition 2012-01, about Ikeda and Onishi—it’s still wrong to not do your job. I testified about that before. I was on the mainland for your second go-around across the hall there, so I missed that one. But I’m here again to tell you that that is still a valid petition. It’s still unethical. You need to show up and do the job you’re elected to do. That’s it. Mahalo. There was no further public testimony. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF AUGUST 8, 2012 Motion and vote: Mr. Balsis moved to accept the minutes as distributed, Mr. Hisashima seconded the motion, and all members voted aye. 4. COMMUNICATIONS a. Letter dated 8/31/12 to the Board of Ethics from the State Office of Elections, alleging that a County officer may be inappropriately involved in the operations of the Hawai‘i County Elections Office, and the Board of Ethics’ 9/5/12 response. MR. DILL: Board members, have you had a chance to review the letters and the corresponding request from Mr. Scott Nago for this Board to initiate an investigation into this matter? MR. BALSIS: Yes. Because this is a letter coming from someone off island, and not a direct petition, what sort of action should we be taking? MR. DILL: Well, what I recommend we do—because this does involve our rules and any further proceedings that we might take on this matter will need to be clarified from our counsel, I strongly recommend that we quickly go into executive session to consult counsel regarding our powers and rules. And if we could clarify that in executive session, then we could maybe discuss it further in regular session. We need a motion to do so. MR. BALSIS: I’ll move to go into executive session for the purpose of consulting with counsel. MR. DILL: All right, do we have a second? MR. HISASHIMA: Second. MR. DILL: All in favor? MR. DILL, MR. BALSIS, MR. HISASHIMA, MR. HENRICKS (simultaneously): Aye. MR. DILL: Opposed? All right, we’ll briefly go into executive session and resume shortly. Thank you. 10:20 a.m.: The Board left regular session. * * * * * 10:36 a.m.: The Board returned to regular session. Motion and vote: Mr. Hisashima moved to accept and file the two communications in agenda item 4a. Mr. Balsis seconded the motion, and all members voted aye. MR. DILL: Good morning, Mr. Yagong. As you all know, Board members, the letter does include a request to initiate an investigation to see if there are any violations into the County of Hawai‘i Board of Ethics Code. And before we move on, Mr. Yagong, I think we do have some questions for you. And I guess the first question I would have is what your role is in your daughter’s campaign for District One. MR. YAGONG: I’m her father. MR. DILL: Nothing more than that? MR. YAGONG: Well, obviously in helping with her campaign, that includes pounding signs, going door-to-door, supporting her in any way I can. If she goes to forums or she has activities, I’d be part of that as well, probably doing just what any other father would do if their child or their spouse or their relative would be part of a campaign. MR. DILL: With all your experience, I’m sure you’ve got a lot that you can share with her. Okay, Board members, do you guys have any questions for Mr. Yagong? MR. YAGONG: Can I ask you a quick question though, first of all, Mr. Chairman, if I could? Because I did look at the complaint that you folks received. And it talks about State HRS law that talks about being a precinct official--if a parent or someone that’s running for office—if you have a parent, that that person would not or could not participate as a precinct official. MR. DILL: For the record, you’re referring to HRS 11-72(b)(3)? MR. YAGONG: Yes. And let me just say this for the record. I was quite surprised to see that as part of the complaint, because never in the last three months, or last six months, or last 52 years that I’ve been alive, have I ever stated that I would like to be a precinct official or work as a precinct official or to work in any capacity as a precinct official. Obviously the rule is there for a very good reason, obviously, because certainly you don’t want to be parked during election day at the precinct where voting is taking place, to having a relative work certainly within that district or one of the precincts within that district. And not only would that be uncomfortable I think for the people that work there, but it’s certainly not an appropriate thing to do. So I understand why the rule is there, and I support it wholeheartedly. But I just wanted to state for the record, never have I said it privately or publicly, or anywhere within the 52 years that I’ve been alive, that I wanted to serve as a precinct official. So I’m not sure how that got in there, or why there’s this sort of an insinuation that because I’m a parent, that I would somehow become a precinct official. MR. DILL: I’ve got a question. Who hires the precinct officials? MR. YAGONG: That’s all done by the County Clerk’s Office. MR. DILL: The County Clerk’s Office, okay. And the Council—the entire Council oversees the County Clerk’s Office? MR. YAGONG: The County Clerk’s Office is part of the legislative branch. But in terms of elections, in terms of hiring of people, that is totally done under the auspices of the County Clerk. MR. DILL: So they hire all the precinct officials. MR. YAGONG: That is correct. Most of the precinct officials that you see there are people that have been doing it for quite some time. They come back year after year after year. So most of those folks are—I think they’ve been hired many, many years ago. But again, the point I want to make is that I’ve never asked or requested or wanted to be a part of a precinct committee. And that seems to be the gist of the complaint, so I just want to make sure I say that for the record, sir. MR. DILL: Okay, back to your daughter’s campaign. So basically other than being a father, just kind of being her number one supporter and advisor on her political strategy, you’re trying to help her succeed, essentially? MR. YAGONG: Well, if my daughter asked me a question, I certainly would take the time to give her advice. MR. DILL: And with your vast experience— MR. YAGONG: --And quite frankly, there’s many candidates throughout the island that call and ask for advice on issues before the County Council. And it’s mainly just to get a point of view. So that’s not something that’s unusual. MR. DILL: All right. Does she have any separate legal counsel for her campaign? MR. YAGONG: A legal counsel? No, she does not. MR. DILL: Okay. Board members, do you have any questions for Mr. Yagong? What’s at stake here is essentially Mr. Yagong is referring to it as a complaint. Just for the record, it’s a—correction, there—it is a request for this Board to investigate further to see if there are any violations, specifically Section 2-83 and 2-84 of the County of Hawai‘i Board of Ethics. I’ve taken the liberty to ask Board counsel to draft a resolution spelling out our rules, procedures, and a resolution which would move this Board forward and schedule an investigation to look into this further, to see if there are any violations of Section 2-83 and 2-84 per the request of the State Office of Elections. MR. YAGONG: Mr. Dill, could I ask you specifically what points do you see at this point in time that would warrant such a need to move forward? MR. DILL: The fact that we don’t exactly know what your capacity is in terms of your daughter’s campaign, the allegations or the potential allegations that are set forth in this letter. Also your role as the County Council chair and having oversight of the County Clerk’s Office and Office of Elections for the County of Hawai‘i. MR. YAGONG: And what specifically is—again, the question, what specifically within that do you see as being a conflict or something that needs to be looked into? I just want to be clear as far as why this is being moved forward. MR. DILL: We don’t have anything specific, and we need to know more and gather a little bit more information to ensure that there are no—any ethical violations. Or should there might be some, we need to conduct an investigation. That is my opinion— MR. YAGONG: --Could I direct a question to the Corporation Counsel? MR. DILL: Could I finish first, please? MR. YAGONG: Sure, sure, go ahead. MR. DILL: All right, thank you. So what I’m trying to say is that we don’t know, Mr. Yagong. And in order to get to the bottom of it, we need to conduct an investigation. Right now all we have is a request from the State Office of Elections, asking us to investigate, and there’s a response from me, as chairman of this Board, essentially spelling out our rules and procedures. So that’s where we’re at. MR. YAGONG: Okay, thank you. Thank you for that opportunity, Mr. Chairman. Ms. Schoen, is there a particular section of the code that has anything to do with a candidate—that it would be illegal or unethical for a candidate to run for office or to seek election office if they have a parent that is an elected official? I can see—I want to try to see what’s the nexus in terms of my involvement in my—I mean, she’s my daughter. And if I wasn’t elected as a chairperson, as a County Council member, I would still be helping my daughter in running for election, whether I’m elected or not. So is there something in there that maybe I’m not aware of that states that I cannot help my daughter in her campaign? MS. SCHOEN: To answer your question, there is no specific provision. But I think what the Board is looking at is your role in the election process--not specifically your daughter’s campaign, but what is your role in the election process and whether or not that has any type of influence, I guess, over her campaign. MR. YAGONG: But the chairman has asked me several times about my daughter’s-- about my daughter’s campaign, so obviously there is something there that either he feels or the Board feels that there’s an issue there. So I just wanted that clarified, because had the chairman not asked that—I think he asked that about three times, about my daughter, so that’s what I’m trying to ascertain. What is it exactly that he— MR. DILL: --Well, to echo what the counsel said, is it—being the County Council chairman and oversight of the Office of Elections through the County Clerk’s Office, there is potential for a conflict of interest. And that’s what we’re trying to get to the bottom of. And I’m sorry you feel that—you stated publicly that this is a silly distraction. But really all we’re trying to do is to preserve the integrity of the democratic process and the best interests of the County of Hawai‘i voters, so that they have some shred of faith that their vote does count without being unduly tampered or messed with in a way that might be a conflict. So what we’re trying to get to is, the bottom of--your role, oversight of the County of Hawai‘i Office of Elections, and if there is any conflict in your involvement with your daughter’s campaign. It’s more so your duties as council chair and oversight of the Elections Office that we’re concerned with, all right? Does that answer your question? MR. YAGONG: Can I make a couple more comments, if you don’t mind? MR. DILL: Well, does that answer your question? MR. YAGONG: Yeah, it does. MR. DILL: Okay. MR. YAGONG: I appreciate your comments, Mr. Dill. It’s just that when you have a situation like this which obviously is going to be covered by the press, and a decision has been made to move forward, as the person that certainly has a stake in this, I just want to get more clarification as to why. Hopefully you’re not offended by my questions. I just want to make sure that I understand why is it that the Board is asking to move forward. If you want further clarification in regards to anything to do with my role with the elections, I’d be very happy to answer those questions for you. But I just wanted to make sure that when I leave today, at the very least what we do ascertain as part of the record is when you take a look at what was brought forward as a complaint by the State Election Office, or at least a _________ by the State Election Office, it talks about myself being a precinct official, serving in that role, that capacity. I want to make sure that that is completely stricken. That’s number one. Number two, because you’d asked me several times in regards to my relationship, my role with my daughter and her running for office, I just want to make absolutely clear that as far as my role as a council person, or my role in dealing with elections, has absolutely nothing to do - MR. DILL: So what you just said in terms of having a stake in this election, you’re now saying you don’t have a stake. We can have her read back the minutes, but you’re talking about having the press here and having a stake in this election. MR. YAGONG: Well as a person that’s being complained about. It’s my name on the docket, right? MS. SCHOEN: I’m sorry, Mr. Chair, can I just interrupt just so that—Mr. Yagong actually brought up a good point in that actually there hasn’t been a decision made as to what the Board is going to do. So I think he said you guys have decided to move forward, and that decision has not been made. If the Board were to initiate its own investigation or hold an informal hearing, your rules require the Board to agree on that, and then a resolution has to be drafted so that the nature and scope of the informal hearing or the investigation is limited and everybody knows what it’s about. So it’s clear, nothing—as I hear—has been decided. And so – MR. DILL: Thank you for clarifying that. MR. YAGONG: I’m sorry, I thought I heard the chair say that they were going to move forward with a resolution, craft a resolution. Mary, did he not say that? I thought that’s what I heard earlier. MR. DILL: Any way no, we haven’t voted on anything, Mr. Yagong, yet. What I did say is that I asked counsel to draft a resolution for discussion and for a vote today, okay? And what the draft resolution, which hasn’t been voted on or decided on, essentially approves this Board to move forward with an informal investigation to determine what your actions are, what your role is, for the County of Hawai‘i Office of Elections. And as the draft reads, also to identify or determine whether or not, with respect to your role in the County of Hawai‘i Office of Elections, if there are any violations of the County of Hawai‘i Code of Ethics, specifically Sections 2-83 and 2-84. MR. HENRICKS: Mr. Yagong, I think I’m going to try to simplify this as much as I possibly can. MR. YAGONG: Thank you, sir. MR. HENRICKS: As you sit before us right now, you’re not the average father, so you can’t come up and say “I’m doing what a father has to do.” You’re not the average father. You happen to be the chairman of the County Council. That’s the other side of the coin, all right? As chairman of the County Council, you have a function within the electoral system, all right? We have to check into that to see if that function in the electoral system will in any way impact upon your daughter’s candidacy. You see, that’s the connection, the nexus. We have to see how they inter-react. That’s what we’re looking at—the inter-reaction. So therefore, our viewpoint is, what is your role in the election function? Is it a figurehead role, or are you operational? That’s what we have to find out, and so far I’ve had no discussion on that particular point. And that’s what we have to determine. If you’re functional—if you’re actually operational in the election process, it may have something to do with your daughter’s running for office and the candidate that’s running against her, you understand? So we have to be fair to both of them, so we ought to know how you can in any way impact that. And that’s what we’re looking for. MR. YAGONG: Okay. I appreciate that, then. Mr. Chairman, at this time I’d like to ask Corporation Counsel whether or not your role as the chairman is a conflict in dealing with this issue, because I think there’s a conflict that you have as chairman of the ethics commission, being that I’m here, that I’ll be here before you. And I’d like to have the Corporation Counsel make a determination if the chairman, in dealing with this issue with me, would be a conflict. And – MS. SCHOEN: Mr. Yagong, if you want to elaborate further, but I really--I don’t at this point, I don’t see a conflict. This Board is—the members are nominated by the mayor, approved by the council. They’re empowered to interpret the Code of Ethics to provide opinions to officers and employees, so I don’t—I guess I don’t understand— MR. YAGONG: --Then I’ll elaborate. The reason I think that there may be a conflict with Mr. Dill in dealing with the issue before this body—because he is the chairman of the County ethics commission, and whom I respect, by the way—but I think that there is a conflict due to the fact that when my office had an opening for an employee to work—we placed an ad in the paper for an employee to work for my office--Mr. John Dill, as chairman of the ethics commission, called my office, called me up personally, to ask me to hire his brother. MR. DILL: Wait a second. MR. YAGONG: And— MR. DILL: --Can I object to this, because this is an event that I cannot even recall, and I don’t even know why I would-- MR. YAGONG: --Mr. Dill, if you— MR. DILL: --recommend my brother— MR. YAGONG: --Mr. Dill, if you can’t recall— MR. DILL: --And do you have any-- MR. YAGONG: If you can’t recall— MR. DILL: --evidence to this? MR. YAGONG: If you can’t recall this, Mr. Dill, then you should not be sitting as chairman of the ethics commission. You called because your brother—you called me— MR. DILL: --When was this— MR. YAGONG: --to ask me— MR. DILL: --Can you provide a date? MR. YAGONG: We’ll provide you with that, sir— MR, DILL: --Okay, can you— MR. YAGONG: --I’m asking for-- MR. DILL: --provide a transcript of that? MR. YAGONG: --I’m asking the Corporation Counsel-- MR. DILL: --Can you answer my question? Can you provide a transcript of that conversation? MR. YAGONG: You’re denying this, Mr. Dill? Are you-- MR. DILL: --Can you answer the question? MR. YAGONG: --Are you denying this? Because I will put you— MR. DILL: --All right, look— MR. YAGONG: --Are you denying this? MR. DILL: Look, I’m going to cut you off now, all right— MR. YAGONG: --Are you— MR. DILL: --From here on, this point— MR. YAGONG: --denying this, Mr. Dill? MR. DILL: From this point—yes, I’m denying it. MR. YAGONG: Oh, then you’re going to be in more ethical trouble than anyone else that ever comes before the ethics commission. MR. HENRICKS: Mr. Yagong, may I point you to Section 1.5 of the Rules of Procedure of this body? It says that if you feel that anybody on this body may be biased or prejudiced against you in any manner, that you can file an affidavit stating so and we would take that up. All right? MR. YAGONG: So would you rule on that, Ms.—deputy? MS. SCHOEN: No, I don’t rule on it. The Board rules on it. So Judge Henricks has cited the proper provision. It’s 1.15. MR. YAGONG: Let’s make it just for the record, then. I would ask that Mr. Dill be recused from dealing with this issue, because I believe that there’s a tremendous conflict on his part. (Jamae Kawauchi, the Hawai‘i County Clerk, moved up to the front table and sat next to Mr. Yagong.) MS. KAWAUCHI: Chairman Dill, Jamae Kawauchi, Hawai‘i County Clerk. I would also like to make a disclosure concerning a possible conflict of interest on behalf of the chairperson, John Dill, of this ethics commission. In July of this year, you requested that I be removed from my office and that our office be shut down and placed into the—under the control of the State Attorney General’s Office or the U.S. Attorney General’s Office. So the question that I have is, if you’re going to ask Mr. Yagong about his operational relationship to the Elections Office, what is your operational relationship? Because that was not a matter that was brought before this commission. It was done personally by you— MR. DILL: --Yes— MS. KAWAUCHI: --without—on County letterhead, on Elections Commission letterhead, based upon communications that you had with persons that you did not identify. My understanding is that those offices that you requested to take over the Elections Office, based on a performance audit, an audit of a voter registry that I performed, which has been in the process of being investigated--Hawai‘i County Police has just announced it’s being investigated, they opened an investigation just yesterday, a completely legitimate process which is being investigated properly by— MR. DILL: Can you— MS. KAWAUCHI: --Excuse me-- MR. DILL: --get to your point, please? MS. KAWAUCHI: My point is, you have an ethics problem, is what I think you got. Because you’re trying to get into the operations of our office. MR. DILL: I wrote a letter requesting that others look into the Office of Elections, as a private citizen, because of the concerns that were surfacing by the public at large and the elections, okay. I’m a voter. I’m a registered voter, if you can maybe double-check that to make sure that that’s the truth, okay. And that has nothing to do with you. It has nothing to do with Mr. Yagong, or the letter and the investigation that was requested by the County—the State Office of Elections. MR. YAGONG: Just a second here— MR. DILL: --Hold on, we have something on the table right now. Mr. Henricks? MR. HENRICKS: Yes, as I stated, if you have a quandary about him sitting here, either one of you, according to our rules you must file an affidavit before this Board, stating that quandary of why you feel he is to not sit, and the Board— MR. YAGONG: --I will do so— MR. HERNICKS: --okay, wait a minute—let me finish. And the Board at that time will take it up as a matter on the agenda between the rest of the three of us, and we would decide whether you have improperly challenged him as to bias and prejudice, all right? MR. YAGONG: I will do so. MR. DILL: Okay, so at this point what I’ll do— MR. YAGONG: --Mr. Dill-- MR. DILL: --is I’ll cut off any— MR. YAGONG: --Mr. Dill— MR. DILL: --Hold on— MR. YAGONG: --Mr. Dill— MR. DILL: --I’m done. At this point what I’ll do is I’ll limit the communications now between this Board and any further potential actions based on this request by the State Office of Elections. Do we have any comments-- MR. YAGONG: --Yes— MR. DILL: --between this Board? MR. HENRICKS: I move at this time that we continue this particular issue until he has an opportunity to file his affidavit. MR. DILL: Counsel, what are the rules requiring the time on the affidavit? MS. SCHOEN: It’s not specific as to timing. MR. DILL: Okay, so – MR. YAGONG: Mr. Henricks, could I address you for a second? MR. DILL: Hold on, hold on. Wait a second. MS. SCHOEN: Yeah, no time, so— MR. DILL: --Okay, so what’s the next process, then? Ms. Kawauchi or Mr. Yagong will file an affidavit with this Board, right, which will be discussed at the next meeting? MS. SCHOEN: Yes. That would be the normal procedure. MR. DILL: All right. So do you guys have any problems with continuing this, then? MR. BALSIS: I have no problem with continuing this discussion. MR. HENRICKS: We can’t move forward at this point if that issue is still there. So if he does—until we decide whether he’s _________ or not, we cannot go forward. MR. YAGONG: The only point I wanted to make, Mr. Henricks, was this. I think you made a very good point when you said— MR. DILL: --All right, so why don’t we move— MR. YAGONG: --you’re not just another father— 14 MR. DILL: --forward with a vote on this— MR. YAGONG: --Same thing with Mr. Dill. He’s the— MR. DILL: --Why don’t we— MR. YAGONG: --chairman of the ethics commission— MR. DILL: --I’m done, okay? I told you—Mr. Yagong, I said I’m limiting the discussion right now between the Board, okay? Please do not speak unless spoken to. MR. YAGONG: He (indicating Mr. Henricks) looked at me— MR. DILL: --Oh, he looked at you— MR. YAGONG: --and he told me to speak. MR. DILL: Did he speak to you? Okay? Stop already. Stop. Okay, so this Board, do we have any further discussion on the further actions of this? Are we going to continue it? If we are going to continue it, can we get a motion, and then maybe we can discuss between ourselves. MR. HENRICKS: I make a motion. MR. BALSIS: I second that motion. MR. DILL: Okay. Do we have any discussion, between the Board? All right. So on the table we have a motion to continue further proceedings with communication dated 8/31 and a corresponding 9/5 response to next month’s meeting. All in favor, say aye. MR. HENRICKS, MR. DILL, MR. BALSIS, MR. HISASHIMA (simultaneously): Aye. MR. DILL: Any opposed? Okay. Thank you. Moving on, new business. 5. NEW BUSINESS a. Petition No. 2012-02: Initial review of petition alleging that a County officer, “in light of strong questionable appearances to the public, should have recused himself from voting . . . regarding the revocation of special use permit #1122” during the Planning Commission meeting of May 3, 2012, thereby violating Sections 2-83(b)(2), 2-83(c), 2-84(e), and 2-91.1(g) of the Ethics Code. MR. DILL: One item of business for this--folks on the Board. The petitioners did request a closed hearing for this. Mr. Kern, do you mind coming up? To let you know, that the petitioners did request a closed hearing on this, just in an effort to keep their names off the record. Do you have any objections to holding a closed hearing for this petition? MR. KERN: Could you elaborate on what a closed hearing means? MR. DILL: Counsel? MS. SCHOEN: It would mean that the matter is closed to the public and only the Board, the petitioner, and the respondents would be present. Right now your petition is set for an initial review, so that means the Board has to decide whether or not it has enough information as is, whether or not it wants to proceed to either an informal or a formal hearing, or whether it wants to dismiss the petition. So those are the Board’s options today. I have spoken with the petitioners yesterday, and they did relate to me that they were not coming today because they did not want their identities known, and they expressed safety concerns and asked whether or not the Board would consider holding the matter in closed session. And I just said I’d relay that information to the Board. Certainly if this matter goes for a formal type proceeding, then you have—you as the respondent can ask for a closed hearing, but you also have the right to confront and cross-examine and present evidence and all of that. So it’s a little bit more involved. MR. KERN: Okay. And as far as the request for a closed hearing now, do I still get to participate? MS. SCHOEN: Oh yes, you would be here. MR. DILL: You would be here. MR. KERN: I leave that up to the Board’s decision. I have no objection either way. MR. DILL: Okay. So essentially what we’re doing is responding to the request of the petitioners. If the respondent doesn’t have any objections, then the Board can decide whether to move forward with a closed hearing or open hearing. Any discussion, Board members? Preference either way? MR. HENRICKS: I so move that we go into closed hearing. MR. HISASHIMA: I’ll second. MR. DILL: All right, so we have a motion and a second to go carry forward with a closed hearing. All in favor, say aye. MR. HENRICKS, MR. HISASHIMA, MR. BALSIS, MR. DILL (simultaneously): Aye. MR. DILL: Okay, so what we’ll do—you can stick around, and everybody else needs to step out while we discuss our initial review of this petition. Thank you. Mr. Dill called for a five-minute break before resuming the matter in closed session. 11:05 a.m.: The Board took a recess until 11:12 a.m. and reconvened in closed session. * * * * * 11:22 a.m.: The Board returned to regular session. b. Petition No. 2012-03: Initial review of petition alleging violations of Section 2-83 of the Ethics Code when County employees are allowed to attend union meetings, on county time, in which political campaigning takes place. MR. DILL: Ms. King, are you still here? MS. KING: Yes, I’m here. MR. DILL: Okay, do you mind just coming up here? We might have a few questions for you. If I might point out to the Board, one of the issues regarding this petition is that we don’t have any responders. In other words, there’s no specific person to respond to these allegations. It’s an allegation made in a general sense, correct, Ms. King, for county employees, and referencing Section 2-83 of the County Code of Ethics. Ms. Schoen, have you had a chance to acquire a copy of the collective bargaining agreement to see if there’s any wording in the union contracts regarding this sort of activity? MS. SCHOEN: No, I haven’t. MR. DILL: Do you have any knowledge of it? MS. SCHOEN: No, I don’t. But if that’s something that the Board would like to look at, I can provide that information to you. MR. DILL: And then what about any sort of precedent on the state level regarding this issue? MS. SCHOEN: My understanding is the State Ethics Commission issued an opinion about ten years ago, same issue, and basically they relied upon a state statute which allowed state employees to attend informational and educational meetings. So no violation was found. But that was ten years ago. I can provide that as well to the Board for your consideration. MR. DILL: Okay. Yeah, I’d like to take a look at the precedent. I’d like to also see if there’s any kind of provisions in the collective bargaining agreement between the union and the county. If—obviously our Ethics Code is pretty clear, that campaigning cannot be done on county time. So— MS. KING: And in a county building, too. MR. DILL: In a county building, you’re right. So today what we’re doing is deciding how we’re going to move forward with this. It would be my recommendation as chair to get a motion to move forward and schedule an informal investigation into this matter. And in the meantime, if we can collect as much information as we can—the precedent, former rulings by the state, county ethics board, as well as take a look at the collective bargaining agreement to see what sort of wording is in that regarding this matter. Is that all right? I want to get as much information as we can. Go ahead. MR. HISASHIMA: Can you also include the following: the agenda for the meeting, who initiated the meeting—the union or the county, because the agenda would show what the meeting is going to be about. And if there is a memorandum to all employees to attend this meeting, and we could have a copy of that memorandum. Thank you. MR. DILL: And Ms. King, from your knowledge—as far as your knowledge is concerned, it was a required meeting? MS. KING: I have no knowledge other than what I read in the newspapers. So perhaps you might contact— MR. DILL: --We’ll try to find out— MS. KING: --West Hawai‘i Today. I know they cannot release the names of the people who complained, but perhaps they could share documentation with you so that you don’t have to spend as much time. MR. DILL: Okay. All right. Thank you for bringing this to our attention. MS. KING: Thank you. MR. DILL: I’d entertain a motion to schedule an informal hearing on this matter. MR. BALSIS: I move that we move forward and schedule an informal hearing, getting the information that was requested by both Chairman Dill and – MR. DILL: - Mr. Hisashima. MR. BALSIS: Thanks. MS. KING: May I ask a question? MR. DILL: Yes, ma’am. MS. KING: What is the—you’re talking about an informal hearing. What’s the difference between an informal hearing and formal hearing? MS SCHOEN: Informal hearing is conducted in an informal manner. Oftentimes the Board will just have people come up and provide information. MS. KING: But would it be at a meeting like this, that’s scheduled and on the calendar? MR. DILL: Yes. MS. SCHOEN: Yes, it would. MS. KING: So today is an informal meeting? MS. SCHOEN: Today is—you could characterize today as an informal hearing, yes. The difference between an informal and a formal hearing is that the formal hearing is conducted pursuant to HRS Chapter 91. It’s a contested case proceeding, so it’s a little bit more adversarial or adjudicatory in nature versus informal. So what I hear actually the Board is doing is—are you continuing this initial review to gather more information? MR. DILL: Yes. Yes, I think we need more information to make a sound decision. MS. KING: Well, thank you. I hope you will discuss this publicly, though, in another meeting— MR. DILL: --Yeah, it will be in public— MS. KING: --and I hope you will consider making your own precedent rather than relying on a decision made by the state that most people found to be unethical. Thank you. MR. DILL: Thank you, Ms. King. MR. HENRICKS: Wait one minute. MS. KING: Yes, Mr. Henricks. MR. HENRICKS: Before I vote I’d like to ask you, since you’re the petitioner— MS. KING: --Certainly— MR. HENRICKS: --who you consider to be the wrongdoer? MS. KING: You know, that’s a good question. I’ve thought about that. I think both parties are at fault. MR. HENRICKS: No, not both parties. Who? I need to have someone before me— MS. KING: --Okay, the county is at fault for releasing workers to attend a meeting at which campaigning took place, knowingly or unknowingly. They need to investigate this and keep it from happening again. MR. HENRICKS: The whole county? You’re saying the whole county is a respondent in your case? MS. KING: Mr. Henricks, I am not involved with the minutiae of how the county is run. But somewhere in the county—I mean, these were county workers. Someone released them to go to this meeting with pay. MR. DILL: Yeah, and I think like I said at the beginning, Mr. Henricks’ concern is that we don’t have a respondent on this. And this is more so going to be a hearing on policy and trying to figure out what the right thing to do is. MS. KING: Mr. Dill, what I’m hoping is that you will investigate this issue— MR. DILL: --Yeah— MS. KING: --All of you, and decide who the respondent should be. Because if it takes filing another petition, I think we can certainly do that. MR. HENRICKS: Do you realize, though, if the union is the wrongdoer, that we can’t go forward? MS. KING: I understand that. MR. HENRICKS: Because we have no— MS. KING: --I understand, but I would hope that the ethics commission could come up with some recommendations. One, I would recommend that county workers not be released—if the union cannot police themselves, I would recommend that no workers be released to attend any union meeting from the time people—from the deadline that people sign up to run for office until the general election, or whatever other election is happening. That would take care of that problem. If there’s campaigning, fine. Let the union pay—and have this in the contract—let the union pay the cost of the county wages, if they campaign on county time. That’s my two suggestions, if we can’t stop this. Thank you. MR. DILL: Thank you. Thank you, Ms. King. Board members, any other items that we need to get together, other than what’s been discussed so far? MS. SCHOEN: We didn’t have a vote— MR. DILL: --Yeah, I know, but I want to say what we need to move forward on this. I know Glen had some items. Bernard, anything else? MR. BALSIS: No. MR. DILL: So if you can get the agenda and some of the specifics on that meeting. All right, I’ll entertain a motion to schedule this as an informal hearing for next month’s meeting, and in the meantime gather the information requested. And could we get that information distributed, Mary, as soon as we get it, so that we have time to review prior to our next month’s meeting? Thank you. MR. HISASHIMA: I so move. Motion moved. MR. BALSIS: Second. MR. DILL: Okay. So we have a motion to schedule this as an informal hearing and continue Petition No. 2012-03 to October’s meeting. Any further discussion? All in favor, say aye. MR. HISASHIMA, MR. BALSIS, MR. DILL (simultaneously): Aye. Opposed? MR. HENRICKS: Nay. MR. DILL: Thank you. 6. UNFINISHED BUSINESS a. Petition No. 2012-01: Review draft order dismissing the petition, which alleged that the attendance and voting records of Councilmembers Donald Ikeda and Dennis Onishi at Hawai‘i County Council meetings violated Sections 2-80 (interpretation of article) and 2-83 (fair treatment) of the Code of Ethics. Ms. Schoen said the order was in draft form, so the members were free to make suggestion for revisions. She did not provide many details in the order since the petition was being dismissed based on jurisdictional issues. She did not include any of the testimony. Mr. Dill said the draft looks like it sufficiently addressed the Board’s lack of jurisdiction and the absence of applicable Code sections. Motion and vote: Mr. Henricks moved to accept the order as drafted, Mr. Balsis seconded the motion, and all members voted aye. Motion and vote: Mr. Henricks moved to go into executive session for review of the confidential matter agendized therein. Mr. Balsis seconded the motion, and all members voted aye. 11:35 a.m.: The Board left regular session. * * * * * 11:36 a.m.: The Board returned to regular session for voting on the executive session matters. 7. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the executive session minutes of August 8, 2012. Motion and vote: Mr. Balsis moved to approve the minutes, Mr. Hisashima seconded the motion, and all members voted aye. 8. ANNOUNCEMENTS Mr. Dill announced that the next meeting of the Board was scheduled for October 10, 2012, at 10:00 a.m. at the County Council Chambers in Hilo or other location to be determined. Mr. Dill also announced that at the October meeting, he would like to have the election of a vice chair placed on the agenda. 9. ADJOURNMENT 11:37 a.m.: Mr. Dill adjourned the meeting. Respectfully submitted: Mary E. Fujio, Secretary (with her signature)