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HomeMy WebLinkAbout2013-09-11 Board of Ethics minutesHAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, September 11, 2013 10:00 a.m. to 11:07 a.m. 25 Aupuni Street, Room 1501 Hilo, Hawai‘i 96720 Members and Staff Present: Bernard Balsis, Jr., Vice Chair Arne T. Henricks, Member Glen M. Hisashima, Member Douglass S. Adams, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Fujio, Secretary 1. CALL TO ORDER Mr. Balsis called the meeting to order at 10:00 a.m. and welcomed Douglass Adams, the newest member of the Board. He asked Mr. Adams if he would share some of his background. Mr. Adams said he served 20 years as an Army officer and also spent time in the state of Washington working for a group that supported the Washington State National Guard with disaster relief, and he also helped other non-profit agencies. He has been an attorney in Virginia since 2002 and has not lived there since 2003. He and his wife are both graduates of West Point. His wife retired in 2010, and for a year they went on a 50-state cycling tour for veterans and military. They started in New York and finished in Hawai‘i in 2011, traveling 18,000 miles in a year. Since he has family roots here, they decided to move to Hawai‘i. Mr. Adams then requested that a moment be taken to remember the victims of the September 11, 2001, attacks. The Board took a moment of silence to remember the victims. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF AUGUST 14, 2013 Mr. Balsis pointed out a typo on page 3 of the drafted minutes, regarding which disclosures were approved. It should read 2 and 3, not 1 and 2. Motion and vote: Mr. Henricks moved to approve the minutes with the above correction. Mr. Hisashima seconded the motion, and all members voted aye. 4. NEW BUSINESS a. Petition No. 2013-03: Petitioner is seeking an opinion from the Board on whether there is a conflict of interest with his employment as an assessor with the Real Property Division of the Finance Department and his part-time job as a licensed real estate agent. Mr. Balsis asked the petitioner to come forward. MR. BALSIS: Michael, you asked for a closed hearing. MR. DRUTAR: Yes. MR. BALSIS: May I ask why you’ve asked for a closed hearing? MR. DRUTAR: I didn’t really know the difference between—I haven’t been in this situation before. I didn’t know specifically what the difference was, and I didn’t know if I needed to be protected from anything from my bosses, if they were unhappy with me coming here. I’m asking for an opinion on this to—they have one opinion that I think is not supported by the Hawai‘i County Code. And I just figured possible retaliation, so I thought it best to come here and get an opinion and then hear what it is and go from there. I would be comfortable making it open in the future, or the report being open to them, or whatever. That’s no problem for me. I just was worried about retaliation. MR. BALSIS: Any comments from the Board on whether or not - ? MR. HENRICKS: Is there anything that you feel that you’ll be testifying here today to that you feel you don’t want disclosed to anyone else at this time? MR. DRUTAR: Oh no, I’m free at answering any questions to anyone. MR. HENRICKS: I mean openly. MR. DRUTAR: Openly, yes, sir. On the record, and anyone can read the record. MR. HENRICKS: So it’s mainly the fact that you don’t want your employer to be involved in this at this point? MR. DRUTAR: I didn’t want them to be mad at me for coming here and asking you guys. I’m kind of over—I’m concerned they think I’m overstepping their authority, going over their heads, and that could offend them. MS. SCHOEN: Can I just jump in and maybe explain to the petitioner the difference between an open and closed hearing? MR. BALSIS: Yes, please do. MS. SCHOEN: In an open hearing, everything that’s discussed here, the testimony taken, documents—everything is transcribed, as you can see Mary’s transcribing everything. And then that is available to everyone and the public. MR. DRUTAR: Okay. MS. SCHOEN: In a closed hearing, which the Board has to approve, everything that’s discussed here is held—is confidential. MR. DRUTAR: Okay. MS. SCHOEN: Any type of opinion or letter that will come out of a closed hearing will remain closed and confidential, unless and until there’s a reason for it not to be. MR. DRUTAR: Okay. But my employers would know either way, correct? I get to let them know afterwards, or do I lose that right? I apologize. MS. SCHOEN: If the matter were closed and the Board does come to some sort of decision and you have a document in hand, that would only be given to you. It would only be given to you. And the Board is having the hearing closed at your request. MR. DRUTAR: Okay. MS. SCHOEN: So it would treat the matter in confidence and closed. Whether or not you share that with your employer or not— MR. DRUTAR: Oh, well I think this goes to some things that would affect other people besides me, and I think having it available for them—and now that you explained to me the difference, I have no objection to it being open. MR. BALSIS: Okay, then let us proceed under open hearing. MR. DRUTAR: That’d be great. MR. BALSIS: At this point, Mike or Michael? MR. DRUTAR: Either way. Mike is— MR. BALSIS: --Mike, I’d like you to just briefly say—I’ve read the petition. We’ve read the petition. MR. DRUTAR: Yes, sir. MR. BALSIS: Give us a brief as to what’s going on. MR. DRUTAR: I’ve been working for the County for about fourteen months now. I got hired. I was a real estate agent, disclosed in my resume and my application. I mentioned it numerous times in my interview. The Real Property Tax has said that doing real estate, being a real estate agent, doing about four or five transactions a year, is a conflict of interest with being a property assessor. My contention is that Hawai‘i County Code Section 2-84(a)(2) specifically includes me. No officer or employee—employee, that’s me—shall undertake any official actions—that would be doing my job, assessing a property, measuring a house, rating it, bedroom count, bathroom count. We don’t actually assign values to homes. That’s actually done by the administrator of Real Property. We collect the data and then he uses algorithms to come up with the numbers. We do assign values to the land, however. And so I can’t take any official action directly following a business or undertaking in which the officer or employee has a substantial financial interest. So if I’m representing someone and I’m collecting a commission, I would definitely say that is a substantial financial interest. A private undertaking in which the officer or employee is engaged as legal counsel, advisor, consultant—advisor, consultant, representative, that’s what a realtor is. Certainly not a legal counselor, or other agency capacity, which wouldn’t apply because specifically in here agency refers to only other County agencies, as I understand the agency definition in this. I have the right to disqualify myself, and I am just simply saying that I do have—I believe that the right to disqualify is something that is—it protects the County and it also protects the employee. It allows us to have other financial interests, and it doesn’t limit it, the financial interests. So for example I may own a business. Let’s say I own a clothing shop, and I come to work for the County of Hawai‘i, Real Property Tax. And I’m assessing my clothing shop and my competitors’ clothing shops for tax. I should be able to go ahead and do my job and then say hey, boss, I need to disqualify myself from assessing my property. I have a financial interest. Same as my personal property. I need to disqualify myself from assessing my own home. I have a financial interest. And it’s the same for me as a real estate agent. I should disqualify myself from taking an official action on a property where I represent somebody. The County RPT’s opinion is that by assessing a home in Waikoloa Village, I cannot sell a home in Kona, even though I take no official action on that home, even though I’ve never taken one. And I just don’t understand why I don’t have the ability to disqualify myself. They’ve been inconsistent. They do have assessors assessing their own homes, their own personal properties. They say well, we have procedures in place, we check on them at the end of the year to make sure they haven’t changed anything. And that sounds practical to me. It’s a workable solution. If you live on a small island, you’re going to have some overlap. The Code doesn’t say you get the right to have your bosses check your work. It says you must disqualify, and it’s very clear on that. So they’re kind of creating separate classes there. It doesn’t really make sense to me. I’m just looking for the right to disqualify myself and continue to do both jobs. I’ve actually offered to go a step beyond that and instead of waiting till a moment comes where I’m in a situation to disqualify myself, to disclose any property where I may have to disqualify myself later on, so they don’t have to wait for a moment where I say oh yeah, I must disqualify myself on this property, and then it’s kind of a surprise to them. I can let them know years in advance I would have to disqualify myself on this property in the future if I was asked to take an official action. MR. BALSIS: So your question to us – MR. DRUTAR: May I disqualify. MR. BALSIS: May you disqualify, and that’s what you’re here to ask. MR. DRUTAR: Yes. Do I have the right to disqualify and continue to work as a Real Property Tax property appraiser. MR. HENRICKS: In other words, you want to do both, and they’re saying you can’t. MR. DRUTAR: Yeah, and they’re saying it after they already hired me, knowing I did both. And I’ve been there a year, and I’d accepted the job—I mean, for just speaking in the narrative, I accepted the job knowing that I could do both. I mean, it pays 36,000 a year. You can’t live in West Hawai‘i and do that. And I kind of make no apologies for that. I accepted—if I accepted, it would be with knowledge that I had the ability to make some other income by doing real estate on the side. MR. BALSIS: And they were fully aware of that. MR. DRUTAR: They were fully aware of it. There is some discrepancy now. There were five people in the room. Two of them say that they told me not to, three of them don’t recall that, and no one wrote it down anywhere. And I’ve asked for documentation on that, and they do not provide any. MR. BALSIS: So this was spoken, not only just in the documentation. The petition infers that things were in the application but it wasn’t spoken at the interview. That’s the way I read it. MR. DRUTAR: No, I disclosed in the interview that I had a real estate license. MR. BALSIS: Okay, that’s— MR. DRUTAR: --Yeah. I’ve disclosed it in writing and even in the job—just office gossip and just, you know, chat, you know. Closed a home in Kona last week, you know. Never hid it. I’m doing Ironman. I had a little interview. They interviewed a few of us in the paper and talked about challenges. I said one of the challenges is working two jobs, maintaining a relationship, and trying to train. I mean, I was so open with them, publicly telling people I worked two jobs. Never hid it. And so it was a bit of a surprise that they had an issue with it. And it was really disappointing because it was an issue. I wish they’d told me at the beginning. I would have accepted a different job. But at this point yes, I do want to do both. I want to disqualify myself from the five properties a year I sell and continue to do my job and work hard. MR. BALSIS: Arne, do you have any other questions? MR. HENRICKS: Yes, I do. First of all, I’m reading your submission. MR. DRUTAR: I apologize for how long-winded it is. MR. HENRICKS: You say you find yourself being investigated for a violation. Is that correct? MR. DRUTAR: Yes. MR. HENRICKS: All right. The department is presently investigating you, is that what you’re saying? MR. DRUTAR: They have concluded their investigation. MR. HENRICKS: Okay. What has the outcome been on that investigation? MR. DRUTAR: A ten-day suspension. MR. HENRICKS: Okay. Is there a potential that they may submit this to this Board as a violation of the County Ethics Code? MR. DRUTAR: I don’t know. I don’t know what their procedures are. And to be honest, I would wish that they do, because I think the facts speak for themselves, whether they’re presented by me or somebody else. MR. HENRICKS: Well, the reason I ask that question is it’s very important. If there’s a potential that they may submit it to the Board, I wouldn’t be in favor of hearing this at this time, you understand. Because I’m not going into a preventive advisory opinion of something that they just submitted as a complaint. You understand the difference? MR. DRUTAR: They’re already made their determination. They actually—in their investigation and discipline, they interpret the Code for you. And what I’m saying is their interpretation is incorrect. MR. HENRICKS: You want us to reinterpret it, then? MR. DRUTAR: I would love clarification for both parties, if that makes sense. There’s no—I mean, someone has to—in other words, it’s just their opinion and my opinion. Well, whose opinion matters? The Board of Ethics is chartered, as I understand it, with making these determinations. MR. HENRICKS: All right. In the—in your agency, when you have been penalized in such a manner—right, you have been penalized, because they put you on ten days suspension, right? MR. DRUTAR: Yes, sir. MR. HENRICKS: Do you have grounds for appeal? MR. DRUTAR: There are grounds for appeal of the discipline. I’m not looking to usurp the disciplinary process. There’s actually a number of different—I’m trying to just find out if we have the right to disqualify, because they’re trying to say from this point forward, you no longer have that right. So like—let’s say I don’t appeal the discipline. Yes, sir? MR. BALSIS: What specifically did the disciplinary action do? You said it gave you ten days suspension. What else did it say? MR. DRUTAR: You’re prohibited from practicing real estate. MR. BALSIS: Okay. MR. DRUTAR: Yes, sir. MR. BALSIS: Anything else? MR. DRUTAR: I’m reading it here just to make sure I don’t forget anything. Moving forward, you are prohibited from engaging in any new real estate business or activities that may impact or be impacted by property evaluations. That actually would mean a lot of different things besides just real estate, but that’s it. MR. BALSIS: Okay. I just wanted to get that specifically in there. MR. HENRICKS: That’s what I’m working on now. MR. DRUTAR: And if it—and to be completely frank, if the discipline didn’t include that, if it was just the ten days, I’d be like fine, just to make it go away. It’s been stressful for the last few months. MR. HENRICKS: Well, the point is, the fact that they did it to you once, it doesn’t go away, you see. Because it’s still there. They can do it to you again if you should continue. MR. DRUTAR: That’s why I would like to—precisely, that is absolutely correct. And that’s why I would like to be able to get an opinion from the Board, a panel of what I would consider experts—an oversight to say you can’t keep doing this. I have the right to disqualify myself. Please let me do my job. MR. HENRICKS: You see, the thing that I’m seeing here is that they’re saying if your employment is potentially—or not even potentially—actually a conflict of interest on the overall County. And you’re saying that I want to take each case on a separate level and disqualify on each case. So that’s the difference between you and them. MR. DRUTAR: Yes. I’m saying that when I sell a home in Hawi, that has nothing to do with the property value in South Point. MR. HENRICKS: So you’re saying that you want to take the narrower view and saying I want to be able to disqualify on a case-to-case basis. And they’re saying no, you’re disqualified from the whole thing. MR. DRUTAR: Yes, and I think that’s completely unfair. To represent a homeowner in their real estate transaction and make sure they get an inspection and make sure their home gets surveyed and they have a home inspector come out, and then it gets closed—which has nothing to do with assessing a property. I don’t see the correlation, if I am disqualifying myself and notifying them. But the County—as I understand it, to put it in practical terms, the County wants to make sure they’re not getting duped. They want to make sure I’m not going out there and saying hey John, I’m going to sell your property and afterwards I’m going to give you a break on your taxes. That’s the reality. They want to make sure there’s no corruption there. And I’m willing to definitely take a disclosure, disqualification point of view, to say I want the County to be protected. And I want to be protected, too. I don’t want people to think I’m doing something like that and have a cloud over my name. So it’s a protection for me as well. I do understand your point, but when you look at the actuality—when you bought your home, it didn’t have anything to do with property tax valuations in another part of the—it didn’t have anything to do with property tax valuations anywhere, because we do mass appraisals. We don’t just look at a narrow individual home. We look at Waikoloa Village. I look at 800 lots and I assign a land value to each of them, and then the houses are assessed by Stan Sitko. It would pretty hard to do it, and it would be pretty dumb. I know the difference between right and wrong. I wouldn’t do it. MR. HENRICKS: Okay, that’s all I have. MR. DRUTAR: I hope I answered your questions. MR. HISASHIMA: I have a question. MR. DRUTAR: Yes, sir. MR. HISASHIMA: Was this violation your first offense or multiple? MR. DRUTAR: I had never been written up, I had never had a single negative remark on a JPR. I could bring in everyone in my office to tell you that in the fourteen months, the least tenured person as an assessor in RPT, I’ve gone way above and beyond. No one—there is a stereotype about County employees that can be true at times. But I—I’m an active person. I have volunteered in three different appraisers’ areas, picked up over 447 properties in two appraisers’ areas that had been off the tax rolls for five years or more. I’m talking millions of dollars of assessed value not getting taxed. Hundreds of thousands of dollars away from the County every year because people weren’t able to effectively get out there and do their jobs or they didn’t like field work or whatever. And I’ve volunteered. No one else volunteers to do anyone else’s work anywhere. I did that in two different areas, and for another person who values our most highest valued properties. There had been homes that weren’t sketched in. I sketched them into the system, which created additional square footage that they didn’t even know about, and added about $25 million—that was a bit of an estimate, it could be about $20 million--in assessed value to the County taxes. Those had not been in the system in over seven years, when they were originally built, so _______. Those are high value areas for the County. I work hard. My employment—the County is getting their money’s worth out of me, and that’s a quote from my supervisor. I work hard, and every one of my co-workers would agree. I’d be happy to bring in testimony from them if it would help. But I think the facts of the case should speak for the facts of the case. I’ve never been any trouble, to answer the question. MR. HISASHIMA: Are you covered by any union bargaining unit? MR. DRUTAR: We are, but it doesn’t cover policy. MR. HISASHIMA: Who’s the union that backs you up? Who’s the union? MR. DRUTAR: HGEA, bargaining unit 13. My union representative is Maile Etherton. And we are working on that disciplinary thing. But they have a new policy which—the union can do nothing about policy. That’s an internal matter. They’re not allowed to—once the policy, them’s the rules. And the policy says people can’t do real estate. And I think that goes against the County Code. MR. BALSIS: Doug, do you have any comments or questions? MR. ADAMS: You just indicated—thank you. You just indicated that this is a new policy? MR. DRUTAR: Yes, sir. We were delivered—we were delivered it in late August, back-dated June. And it says you can’t do it. MR. ADAMS: And what was the policy prior to that? MR. DRUTAR: There was no written policy, which comes into some of the problem—not to get too far into the discipline thing, but some of the problem with the discipline thing was there’s no policy written anywhere, no one’s said anything to me, it wasn’t in my interview. Like all right, we’re going to write a policy that now makes you not in compliance even though you’re doing the same thing you’ve always done and were never told otherwise until now. MR. ADAMS: As a part of the—as a part of what you wrote us, part of your statement, you indicated that it appeared, at least to you, that there was an inconsistent application of this policy because others appeared to be, other assessors appeared to be, also having worked as real estate agents. MR. DRUTAR: Yes, sir. So we have another assessor who has a license as a real estate agent, but he hasn’t closed any transactions. Now that doesn’t mean he’s not representing buyers and sellers and just hasn’t brought a deal that closed. But we don’t know. The important thing on that is he also has a license as a real estate appraiser, and he is a part-owner of Bloom Appraisals. Bloom Appraisals represents people actively at their tax appeals against Real Property Tax. His wife—his wife literally writes appraisals that get used, very similar to this hearing, where people are appealing their property tax. MR. ADAMS: And you know this how? MR. DRUTAR: I’ve seen the appraisal with his wife’s name on it. I know he’s an owner in Bloom Appraisals. His supervisors know it as well. They did insert another—to get into that policy, they did insert a part in there that says your spouse has—or household, brother, sister, mother, father, household member, which is the word in here—may do these things but you may not. That, from what I understand, goes directly against the Code of Ethics, which says your financial interests and that of your household member—brother, father, mother, sister, it makes it kind of messy—are exactly the same. They’ve actually created two separate classes on their own to say yes, your mother, your sister, your wife can, but you cannot. And we refer to it—I’m not going to give you his name, but his name—exception to the policy, because it seems to be so crafted. It almost looks gerrymandered to take me out of compliance and remain him in compliance. He does work quite closely with the administrators. But it seems to be directly against the County Code, where—he actually has money in his bank account that he and his wife earned as owners of this company, representing people against the department he works for. That’s okay. I work as a real estate agent. That’s not okay. MR. ADAMS: Thank you. If I was going to—there’s a variety of decisions here, obviously. If one of the decisions--assuming one of the decisions is to continue on, I would be uncomfortable making any decision without having, on the merits of this, without having some type of communication with the department, and understanding what their policy is. MR. BALSIS: Arne, you have a comment? MR. HENRICKS: Well, this is an advisory opinion, and we don’t continue on. We just—this is it. On a hearing type level, where there was an actual complaint, we continue on to the next step. This one we don’t. So if you want to continue this, people might _________. You understand the distinction? MR. ADAMS: I mean—you’ve been doing this for awhile. All mine is just from looking at the rules. So you have the variety of—you have a declaratory judgment, which is what I think I just heard you talk about. And then you have your informal hearing and formal hearing. Are you saying that the decision on the informal hearing becomes a formal hearing if we continue on? MR. HENRICKS: There is no more hearings. This is it, an advisory opinion based on his request, that’s all. MR. BALSIS: I think what Doug is saying is that for him to make an opinion on giving advice, he would want to hear— MR. HENRICKS: That’s all we’re doing. We’re not making a finding of any kind. We’re just giving an advisory opinion. MR. ADAMS: Sure. MR. HENRICKS: And so it doesn’t go into an actual hearing stage. MR. ADAMS: Right. MR. HENRICKS: Where you take evidence and such. MR. ADAMS: Right. Okay. MR. HENRICKS: She might correct me. Go ahead. Do you have something? MS. SCHOEN: Well, I think what Doug is saying is he just needs more information. If he’s asking for an opinion as to whether or not—actually, I’m unclear as to what you’re asking. Are you asking this Board to invalidate an existing policy of your department? MR. DRUTAR: No, that would come—that would be something on down the line. I’m asking for an advisory opinion as to do I have the right to disqualify myself—I’m sorry, I have it different—do I have the right to disqualify myself from taking an official action directly affecting a private undertaking in which an employee is engaged as a legal advisor, legal counselor, advisor, consultant, or representative—that as a real estate agent, do I have that right to disqualify myself? MS. SCHOEN: Yeah, that— MR. DRUTAR: --I’m sorry if I’m not—I apologize. MR. BALSIS: Can I make a—I’m going to discuss just a little bit amongst the Board here. You can stay right there. It seems like the petitioner is asking us a question which, if we answer, it will either validate or invalidate an existing policy, whether or not it was distributed in August, pre-dated June or not. Am I understanding this correctly? MS. SCHOEN: What I’m hearing is he wants to see whether or not he can disqualify himself. But the Board is charged with interpreting the Code of Ethics and whether or not particular conduct is a violation of the Code of Ethics. So I don’t know whether or not you guys are empowered to answer the question, can he disqualify himself. MR. DRUTAR: May I ask— MR. BALSIS: --I guess maybe the question would be, then, when the actual incident happened, did it happen before August or after August? MR. HENRICKS: No, that doesn’t matter. MR. DRUTAR: Before. I guess I could reword the question. They can only determine if a violation has occurred. Is that what I understood correctly, ma’am? MR. BALSIS: No. MS. SCHOEN: No. MR. DRUTAR: I’m afraid I may have asked the question wrong. I apologize. Can you repeat that part, where you said the Board can only determine if—is it a violation or - ? MS. SCHOEN: Well, the Board interprets the Code of Ethics and then looks at specific provisions in the Ethics Code and a particular factual situation and determines whether or not that is a violation of the Ethics Code or whether—or not. MR. DRUTAR: Okay, so I guess I would ask, is it a violation of the Ethics Code for me to sell a home in Kona and assess a home in Waikoloa? Is that a violation of the Ethics Code? If I can word it that way, to allow you to answer the question in a more affirmative—if that makes sense. MR. BALSIS: I think I’m going—if I’m thinking correctly on this, if we answer the question we’re actually validating or invalidating a policy of this division. MR. HENRICKS: Exactly right. You’re making a ruling based on the policy of the department. That’s what you’d be doing. MR. BALSIS: So in essence it would determine whether the policy is right or wrong. MR. ADAMS: I guess I don’t know about that. I understand that there’s a policy. I mean, we’re not doing this in a vacuum. But I think that there’s situations, more rather than just this one, where that would be a potential case. And so the idea that there’s consequences to our decision, I think that that’s—of course there’s consequences to the decision. Most of the time those consequences are going to be to the individual, but sometimes the consequences are also going to be to the department or the County. So I wouldn’t necessarily be hesitant for that reason, to render some type of advisory opinion, necessarily. The question I have is, I look at the question that was presented to us by Michael in his statement. And the question specifically was do employees—should employees be allowed to disqualify themselves through 2-84(a), or should they not be allowed the right to have other financial interests. That question to me is not one we answer. That’s not an individually, fact-based situation sensitive question, which is I think what we’re supposed to answer in 2-84(a). Now he just asked us a different question in testimony, which was can I sell - ? MR. DRUTAR: Correct—could I sell one home and assess another home. MR. ADAMS: Sell one home where? Sell one home in Waimea, you said-- MR. DRUTAR: --Waimea, Waikoloa— MR. ADAMS: --and then assess a home where? MR. DRUTAR: Kona. MR. ADAMS: Okay. So it matters—see, to me those situations matter. If that’s the question you’re asking, well think I think we can give an informal advisory opinion to that. What he’s able to do with that later, that’s—maybe potentially he’s going to decide to use that further, I don’t know. But that kind of comes back to my question about asking the question to the department about their policy. But I think I see your point now. That really doesn’t matter when we’re answering this individual question. MR. HENRICKS: It would put it in the nature of a contested hearing. MR. ADAMS: It would. MR. HENRICKS: And we’re not in that. MR. ADAMS: No, that would be a different—that would be a different thing. That would be an 86(b) as opposed to 86(a). MR. HENRICKS: Right. That’s what I’m trying _______. MR. BALSIS: Any opinions here? MR. HISASHIMA: I have a question— MR. HENRICKS: --As to whether he has a right to disqualify himself as a realtor, we can’t answer that question, because we don’t have any ruling on you as a realtor. MR. DRUTAR: And I’m not asking for that. I’m asking as an assessor, can I disqualify— MR. HENRICKS: --and secondly, I think since a decision has already been made and disciplinary action has already been taken, we can’t come in with an informal advisory opinion on that type of situation. I think since you have rights of appeal, maybe they’ll go through the proper authority and then if they want come to us we can say who is right, the County or the—and bring it in as a party. I can see us ruling on that, but not on this level. MR. DRUTAR: Sure, and I— MR. BALSIS: I can agree with you. MR. DRUTAR: I apologize if it seems like I’m trying to get you to give a ruling that will allow me to invalidate a decision in the past. Mainly my concern is for the future. Well, my concern is for the future. That’s what I want to know, is moving forward— MR. HENRICKS: --That’s why I asked you, once they disciplined you, it’s not done if you do it again, you see. So therefore you have to clear up that disciplinary action that occurred to you. You have to clear that up. And the only way you can clear it up is to appeal it. MR. DRUTAR: If for the past discipline, yes, sir. MR. HENRICKS: Yes. But they will clear it up for the future, too, because if they’re wrong they have to back off for the future. They can’t discipline you again once they’ve been proven wrong on your hearing. MR. DRUTAR: What they will say is that when I sell a home in three months, that’s a separate incident. And my disciplinary action doesn’t—they will not be allowed—it’s my understanding, and I may be incorrect—to say this policy is wrong and you don’t—this policy they wrote is wrong. The grievance procedure won’t cover that. The policy is the policy, and the union has no control and no representation over that policy moving forward. I don’t know what forum I have, quite frankly. MR. ADAMS: So if I might, this is really—we could try and make this a discussion of 84(a), but it really is not, because really what you’re trying to do is—you’re not talking about what’s happened to you in terms of the investigation and punishment. What you’re talking about is there’s a policy now that has recently been written, whether or not it was always the case or not, but it was recently written by your department, that you disagree with. MR. DRUTAR: Yes, sir. MR. ADAMS: And you want to use the—because it’s specifically associated with the conflict of interest provision within the County, within the Code, you want to get the Board’s opinion on whether or not that policy is in accordance with the Code. MR. DRUTAR: Yes, sir. I think— MR. ADAMS: And so given that, this is no longer an individual case. This is now a contested case. And it’s not that you can’t do this, it’s that we do need to hear from the department as to their opinion on their—in my opinion we’d have to hear from the department on their opinion as to theirs as well. So we’ve heard partially yours. If you then came back to us with a different petition that was in accordance, which was—I don’t know, you would know—but was really associated with addressing the policy as opposed to your individual informal—your request for your individual situation, then that may be—well, that’s going to be different from what we’re doing now. MR. DRUTAR: Okay. But is this the proper forum for that, asking for an interpretation of a policy they’re writing? Because they’re just writing it on their own, and then—I mean, someone’s got to make sure what they’re doing is legal by the Code. And so I’m fine with whatever procedure needs to happen for that, but just them writing a policy doesn’t make it so. It needs to be—it needs to be legal. MR. HENRICKS: I would challenge them on your disciplinary action. I would appeal it and make them bring the policy as the reason they disciplined you. MR. DRUTAR: Oh, they’re not saying it’s the policy. They’re saying that the action as a real estate agent is in and of itself a violation of HCC— MR. HENRICKS: --All right, that’s what I’m saying. That in itself should be challenged, all right? MR. DRUTAR: Okay, yes, sir. MR. HENRICKS: By appealing it, you challenge it. MR. DRUTAR: Yes, sir. MR. HENRICKS: Okay, and that’s what you should do. Go the appeal route and challenge it. MR. DRUTAR: But they’ve told me that they will—if I do it again, I will be disciplined again. But I understand, I know— MR. BALSIS: --We’re not looking at that aspect. We’re just looking at the full challenge of it. MR. DRUTAR: Yes, sir, I know. I apologize. It’s very confusing to me, too. I’m caught in a situation where I don’t know what to do. MR. HISASHIMA: How long ago was this? MR. DRUTAR: Which part? MR. HISASHIMA: The investigation, and the final decision. MR. DRUTAR: June 18th. MR. HISASHIMA: And you said the policy came out in August? MR. DRUTAR: Yes, sir. MR. HISASHIMA: Prior to August, it was an unwritten rule. MR. DRUTAR: They claim there was an unwritten rule. MR. HISASHIMA: Who claimed? MR. DRUTAR: Lisa Nahoopii, Shana Thakur, Nancy Crawford, Stan Sitko. MR. HISASHIMA: Okay. Renee, can I ask you a question, a simple question? MS. SCHOEN: Yes. MR. HISASHIMA: Does the County also follow the rules of HGEA when—because I wrote policies for the state. I cannot enforce the policy without consulting the union for 30 days. Within the 30-day period, they would tell me if it’s good or no good, _______ questions, and I cannot implement it within that 30 days. Does the County follow that too, with HGEA? MS. SCHOEN: I don’t know. That’s not something—but I can find out for you. MR. HISASHIMA: Like Mr. Henricks is saying, you have to challenge the discipline with your union. MR. DRUTAR: And I will—I am. MR. HISASHIMA: When they find out the decision on that, that will reflect with the policy. Because I’ve been through cases, a new policy come out and we lost, because the union going come back—and this is the state. I don’t know if the County do—you never consult with us, so that policy does not hold water. You have to consult. You should look at your union. MR. DRUTAR: I can answer that question. My union representative was out that week, and it got—Lisa Nahoopii brought it to someone that she’s known for a long time. They put it through without speaking to the union stewards in my office. And then the union says well, that’s the way it went, and it’s in now, and we consulted with the union because we talked to Maile’s boss, and even though we didn’t talk to your union stewards, who would have known they’re just crafting this now to bring Mike out of compliance. Don’t ever talk to them about that. MR. HISASHIMA: But I would challenge it with them. MR. HENRICKS: Okay, here’s where my reluctance is, like I keep trying to go back to. I don’t— MR. DRUTAR: --I don’t expect a ruling today— MR. HENRICKS: --Wait, wait, wait— MR. DRUTAR: My apologies. MR. HENRICKS: Let me—my reluctance is that I’m reluctant to make a ruling on something that the department has done that’s not before us. That’s like I’m actually saying I’m going to overrule what they did or not __________ what they did. I’m reluctant to do that, very reluctant, especially when there’s a processes in place to determine if they’re correct or not. All right, if I were to make a ruling on whether their policy is right or wrong, I would need a lot more information than I have now. I would have Corp Counsel go to the department, have a written statement of that policy so I can look at it, and then the basis for that policy—what they feel that policy is based on. Then I would know where to go from there. At this point I could not even go forward, you understand. I’m stuck. MR. DRUTAR: After speaking with you folks, I definitely realize that this is something that—and I apologize for wasting your time, because I’m starting to wonder if that’s what I did—but is this something I’m going to have to resubmit in a different format where—because right now you’re getting one side of the story. You need both sides of the story, and that’s basically what you’re saying. You need to hear what Real Property is saying, too. You need to get both sides of the story to go and do something like that. And I recognize that. I will be—I am actively—I have just submitted my grievance yesterday, in fact. We had an informal meeting to try and resolve it before it got to the grievance step with Nancy Crawford. And she in that meeting—she still has time to change her mind, but she seemed to be pretty dug in on you can’t do real estate in the future. So we’ll see how that goes. MR. HENRICKS: My question is, when they disciplined you, did they actually state that you had violated the Ethics Code? MR. DRUTAR: Yes, sir. If you bear with me here, I have somewhere in here my—they actually placed me on 30 days leave without pay— MR. HENRICKS: --Definitely should appeal that— MR. DRUTAR: --yeah, and I’d never been written up. I never had the—I mean, there’s a number of union procedures, and that’s not for this forum. They never followed any steps. It was just 30 days, you’re out without pay. MR. ADAMS: But his question was not that. MR. DRUTAR: I’m sorry, I apologize. MR. ADAMS: His question was, was the punishment with the violation, was it articulated that it was a violation of the Ethics Code? MR. DRUTAR: We are concerned you may be in violation among other possible authorities the County of Hawai‘i’s Code of Ethics section on conflicts of interest and confidential information – MR. HENRICKS: ________ say yes. MR. ADAMS: Interesting. MR. DRUTAR: Did I not - ? MR. ADAMS: No, no. Keep going. MR. DRUTAR: And then they have the excerpts from the Code that they’re saying I violated. I mean I’ll leave a copy for you guys for the new policy that’s going to be—this is going to be—I mean, I’ll resubmit next month if that’s acceptable. And again I apologize for—I just don’t know what forums I have. MR. HENRICKS: Well, my dilemma is that if they’re using the Ethics Code to punish people with, I think we can get involved, all right? Because it’s our Ethics Code and we can tell them if they’re using it or not. But if it’s not, I don’t think we should be involved. Secondly, like I stated, to reiterate, I don’t want to go in on top of someone else’s hearing and make a call on top of what they’re doing. I want somebody to appeal that thing and get it off—get rid of it that way, through the proper appeal procedure, because I don’t want to get involved in anything that’s being an appeal procedure. It’s not our kuleana to do that. MR. DRUTAR: I definitely understand your position. MR. HENRICKS: But as to the question of whether they’re misusing the Ethics Code, I think somewhere along the line maybe we can tell them they are. I don’t know. MR. DRUTAR: Yeah, to specifically answer his question, yeah, they cited the Ethics Code. MR. ADAMS: I would, if I may make a comment, as an employee—frankly, as an individual, but particularly as an employee, according to the Code you of course can petition the Board of Ethics for an informal hearing, opinion, on a particular situation. That’s why I was trying to draw you down into a particular situation. I think part of where we’re at as a Board, if I’m reading this right, is your situation. The facts that you’ve laid out are not simply selling a home in Waimea and assessing one in Kona. They’re just not simply that. And so given that, I think that part of the conversation that we’re having with you is you kind of stepping back and seeing what is it that you really want, given the situation that you are in, and taking a look at what some of the other options are. One of those options may be looking at what’s available within the Code as well, to have a conversation about the validity of the policy that you feel is in—in your opinion, not in accordance with the Code. MR. DRUTAR: Yes, sir. MR. ADAMS: That’s kind of what I’m seeing. MR. BALSIS: Do you have a comment before we continue here? MR. HENRICKS: No, I’m tired. MR. BALSIS: Okay. MR. HISASHIMA: I have a last one. MR. BASLSIS: Okay, go ahead, Glen. MR. HISASHIMA: Twenty-five years I worked in the state. To write up an employee, they have to violate a policy. Like Arne’s saying, they wrote you up on an ethics charge. That’s wrong, to me, because what is a policy for? That is the law of your department. You violate the policy, you write specifically section dat, dat, dat, dat dat, not go off and say you violate this ethics rule. And so I believe what Arne said. We can tell them not to use it. As a manager, any employee gets written up should be written up on a policy. So I feel you should fight that, because it’ll clear your policy, too. And while I’m seeing you wanted to be disqualified from doing certain things, prior to when there’s no written, could do it, right? MR. DRUTAR: That was my interpretation. Nothing’s written. MR. HISASHIMA: Now they come up with something in writing. The policy—if you violate the policy, that’s when you get violations, not on ethics rules or—that’s nothing. The violation of the policy carries more water, because now I can use that and also – MR. DRUTAR: I agree. Yes, sir. MR. HENRICKS: I think what we’re trying to do is--I think he understands _________. We’re talking due process here, you see— MR. DRUTAR: --I agree completely— MR. HENRICKS: --and really you have to stay within the lines of due process. You haven’t had due process, and you should be telling them I haven’t had due process and let’s see where that falls out. Let’s see where—if you’ve been wrong, you’ve been wrong, and that suspension may be totally bogus. But you have to go through due process to find that out. And an opinion from us at this time would be worthless. MR. ADAMS: See, I think that’s really the point. MR. DRUTAR: I think I need to apologize. MR. ADAMS: It’s a timing issue from our perspective. MR. DRUTAR: My concern is that I would have been fired before I had the chance to come here, because it was so— MR. HENRICKS: --They can’t fire you without due process, because they’ve got too many things that can happen to them. MR. DRUTAR: Well, they suspended me without citing policy, so – MR. HENRICKS: Well, to me when you talk about a suspension like 30 days, that’s ________. So they can’t just walk on that. I mean, they have to answer to that if they’re wrong. If they’re right, then you did something wrong. I don’t know that. MR. BALSIS: So in summary, Mike, I believe we’ve given you a lot of different advice on how to go about due process. It appears that you’ve already started it, because you’ve made your claim or dispute— MR. DRUTAR: --Grievance— MR. BALSIS: --you’re grievance just recently. And as you see that through, then perhaps the whole thing may come back over here. But as Arne was saying and Doug was saying, that would be part of the due process. MR. DRUTAR: Okay. MR. HENRICKS: And if they want to quote the Ethics Code as a reason for you being punished, then let them make a complaint to the Ethics Board and let us make a finding of what you violated. Then they can punish you. Not based on us, but not the way they did it, saying you violated the Ethics Code, therefore we’re going to punish you. Because they can’t make a finding for us. MR. BALSIS: And you should be able to make that— MR. HENRICKS: --if you make that statement on the appeal, they cannot use the Ethics Code unless the Board of Ethics has ruled on it— MR. DRUTAR: --I’d like to get that in writing— MR. BALSIS: We’re not giving an opinion, we’re— MR. HENRICKS: --We’re not ruling on it one way or the other. We don’t know whether you violated it or not. MR. DRUTAR: Yes, sir. MR. HENRICKS: We have no idea at this point. MR. DRUTAR: Okay, so I will be proceeding on the grievance path, but would next month be maybe too soon to just—is there a conflict— MR. HENRICKS: --We can continue it if you want us to. Shall we continue it? MS. FUJIO: Bernard’s not going to be here next month. MR. BALSIS: I will not be here in October, but there’s other three people here. MS. SCHOEN: Are we continuing it, or are you folks taking no action on it? I mean, because— MR. HENRICKS: --I think no action— MR. BALSIS: --I think it’s better we take no action at this time— MS. SCHOEN: --Take no action at this time, and then if he wants to resubmit the same thing next time he can do that, or submit a new one? What do you guys think? MR. HENRICKS: Based on what he finds out, you can resubmit based on what you find out from your people. MS. SCHOEN: I mean the grievance process I think is going to be longer than a month. It’ll take its course, and I think it’ll be several months. When you go through that grievance process then you have a right to appeal—I mean, you have a hearing, right to appeal, and all of that, so you know – MR. ADAMS: One of the concerns I have—I’m not disagreeing, but one of the concerns I have is he’s provided—he’s petitioned us for an opinion. So then either he withdraws or we take no action, with the idea that he may come back. Is there a point in time, if things go badly, where he no longer can come forward? Say he’s no longer employed. Does that prevent him from coming forward? MR. BALSIS: In my mind, and please correct me if I’m wrong, that does not prevent him from coming forward. However, the petition would have to be direct as to a violation of the Code or a misinterpretation of the Code by an existing employee, which would be his supervisors all the way up the line. But he would have to be specific in naming them. MR. ADAMS: So he doesn’t lose his right to come back, regardless. MS. SCHOEN: No, because any member—anybody, the public, otherwise—can bring a petition before the Board, whether or not he’s an employee or not. MR. ADAMS: So just because we’re not taking action today doesn’t mean that you’re not able to come back at some future time. MR. DRUTAR: I would like to withdraw it at this time so it’s just dead, and then I can resubmit a fresh and I think cleaner, with my understanding now, cleaner petition in a month or—some time in the future. I think that would— MR. HENRICKS: --When you resubmit anything, try to get it in writing what they say. Anything in writing is record for us. MR. DRUTAR: Yes. MR. HENRICKS: Otherwise, what if--what we’re seeing here is just what we’re seeing. Nothing is under oath. MR. DRUTAR: I’ll leave that on the table, and you guys are free to take it if you want to just look at the new policy coming up, and it has a number of different things in there that I think are pretty odd. MR. BALSIS: I think that if you’re looking at that policy and leaving it here, you would include that within a petition if that’s part of your argument, rather than leaving it on the table. MR. DRUTAR: Okay. Sounds great. I apologize. I feel like maybe I— MS. SCHOEN: --Don’t apologize. MR. BALSIS: No need to apologize. The time was well spent. MR. HENRICKS: That’s what we’re here for. MR. BALSIS: The time was well spent. MR. DRUTAR: Okay. Thank you for your time very much, I appreciate it. And thank you for your years of service. I know it’s no easy job getting into West Point. MR. ADAMS: It was a long time ago. MR. DRUTAR: Well, still. MR. BALSIS: Thank you, Mike. MR. HISASHIMA: Thank you, Mike. MR. DRUTAR: Thank you guys, I appreciate it. Thank you, ma’am. Mr. Drutar left the meeting at 10:55 a.m. b. Counsel’s report regarding matters and/or inquiries received by the Board, including (1) a Gifts Disclosure Statement received from Councilmember Brenda Ford. Ms. Schoen reported that the Board received a gift disclosure from Brenda Ford, reporting a gift valued at $5. There was no need for her to file the report. Mr. Balsis said it would be filed for the record. 5. UNFINISHED BUSINESS Petition No. 2013-02: Board-initiated petition for informal advisory opinion pursuant to Article 15, Section 2-86(b), Hawai‘i County Code, alleging violation of Article 15, Section 2-91.1, financial disclosures and disclosures of interest, by Gloria Wong. a. Communication dated 8/23/13 from Charmaine Shigemura of the Mayor’s Office, regarding Gloria Wong’s resignation from the Salary Commission. Mr. Balsis said Ms. Shigemura’s communication from the Mayor’s Office confirmed that Gloria Wong’s resignation from the Salary Commission was received, and the mayor acknowledged and accepted the resignation. The Board could therefore dismiss this matter. Mr. Henricks asked whether it was correct that a violation for non-compliance with the disclosure statement can lead to a misdemeanor charge with the possibility of jail and a fine, as was reported in an article in the Hawai‘i Tribune-Herald. Ms. Schoen said no, the article was wrong. The penalty in the article is applicable to a candidate. The Board’s letter to Ms. Wong laid out the entire penalty provision, and the applicable penalty provision for Ms. Wong, which would be referral to the Mayor’s Office, was underlined. Motion and vote: Mr. Henricks moved to dismiss the petition, Mr. Hisashima seconded the motion, and all members voted aye. Motion and vote: Mr. Balsis moved to go into executive session for the purpose of reviewing confidential financial disclosures and the executive session minutes of the last meeting. Mr. Henricks seconded the motion, and all members voted aye. 11:00 a.m. The Board left regular session. * * * * * 11:04 a.m.: The Board returned to regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the executive session minutes of August 14, 2013. Motion and vote: Mr. Adams moved to approve the executive session minutes of August 14, 2013. Mr. Henricks 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. Mr. Balsis noted for the record that disclosure No. 1, of John Bertsch, had not been received back from him. It had been returned to him for completion and signing. The Board found no problems with the other disclosures. Motion and vote: Mr. Balsis moved to approve disclosures 2 and 3, Mr. Adams seconded the motion, and all members voted aye. 7. ANNOUNCEMENTS Mr. Balsis announced the Board’s next meeting: October 9, 2013, at 10:00 a.m. at the same location or another location to be determined if the need arose. Mr. Balsis said he will not be available for the October meeting. Mr. Balsis asked when they should vote on selecting a chair and vice chair, and Mr. Henricks suggested they wait until they have a fifth member on Board. 8. ADJOURNMENT Mr. Balsis adjourned the meeting at 11:07 a.m. Respectfully submitted: Mary E. Fujio, Secretary (with her signature)