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HomeMy WebLinkAbout2014-02-12 Board of Ethics Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, February 12, 2014 10:00 a.m. to 12:52 p.m. Hawai‘i County Building 25 Aupuni Street Council Chamber Hilo, Hawai‘i 96720 Members and Staff present : Bernard Balsis, Vice Chair Arne Henricks, Member Glen Hisashima, Member Douglass Adams, member Renee N.C. Schoen, Deputy Corporation Counsel Renee K. Lawrence, Secretary 1. CALL TO ORDER Mr. Balsis called the meeting to order at 10:00 a.m. 2. STATEMENTS FROM THE PUBLIC There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF JANUARY 8, 2014 Motion and vote: Mr. Hisashima moved to approve the minutes with revisions as discussed. Mr. Henricks seconded the motion, and all members voted aye. 4. COMMUNICATION a. Correspondence to the Board from Patrick Y. Taketa Appraisals, Inc. dated January 23, 2014 regarding the Board’s Decision in Petition No. 2013-06. Mr. Balsis noted that he believed the Board covered Mr. Taketa’s concerns. There were no further comments or discussion regarding the communication. Mr. Balsis stated that the communication would be filed for the record. 5. NEW BUSINESS a. Petition No. 2014-01: Initial review of petition alleging that the County of Hawai‘i, Department of Finance, is in violation of Sections 2-86 and 2-79(3) of the Code of Ethics because Petitioner was “suspended for 2 weeks for 1 violating the Code of Ethics without an informal advisory opinion from the Board of Ethics.” Mr. Balsis: With that in mind where is the petitioner. The petitioner, Michael Drutar. Mr. Drutar: Yes, sir. Mr. Balsis: Please come forward. Ms. Noda: Mr. Chairman, I’m representing the Department of Finance. Can we also come forward at this time? Mr. Balsis: We’ll hear from Mr. Drutar and then you’ll have your opportunity. Ms. Noda: I do have some concerns I wanted to address, confidentiality of the proceedings, and also have three tiered request that I would request that the Board consider before we go into any substantive discussion. Mr. Balsis: Please come forward they sound procedural, if I’m correct. You’re talking procedural issues? Ms. Noda: Yes. Mr. Balsis: You’re talking about confidentiality of the Petitioner? Ms. Noda: Yes. Mr. Balsis: Yeah, so when it comes to the actual Petition and when we discuss the Petition itself, Mr. Drutar will be the first one to speak. Ms. Noda: Yes. Mr. Balsis: If you have a procedural issue, please. And your name again? Ms. Noda: May I introduce myself. I’m Diane Noda, Deputy Corporation Counsel. I’m representing the County of Hawai‘i Department of Finance and with me is Nancy Crawford, Director of the Department of Finance. Mr. Balsis: Okay. Ms. Noda: By way of introduction I’d like to also introduce… Mr. Balsis: (microphone turned on) We want to hear you. Ms. Noda: Sharon Toriano, Director of Human Resources and Nicholas Hermes, our Deputy Director of the Department of Human Resources. Regarding the Petition that’s before the Board 2 today, the County’s primary concern and threshold issue would be the confidentiality of a personnel matter. We, in essence, are somewhat handcuffed at this point because state law prohibits us from discussing a confidential personnel matter. Hawai‘i Revised Statutes, the state law, 92f-14 provides that there are items that have significant privacy interests that Mr. Drutar has, and that there are some exceptions. And so, the exception in this case, and I’m having to address it in just generalities would be when they, he has a personnel action that has to be taken to the, and completed at the highest non judicial level and then a period of 30 days before anything of that matter can be disclosed. I did bring a copy of the HRS Section 92f-14. Mr. Balsis: Excuse me for one second please. Mr. Adams: If I could ask a question. Ms. Noda: Sure. Mr. Adams: Just to make sure I understand, that can be disclosed by your client? Ms. Noda: Yes. Mr. Adams: Thank you. Ms. Noda: I do have a copy of the state law if the Board would like to have a copy at this point in time. Mr. Balsis: I don’t think it’s necessary at this time. Go ahead Mr. Henricks. Mr. Henricks: I’d like to take this into a shortcut right now. Ms. Noda: Ok. Mr. Henricks: We’re not going to be talking about any confidential issues as to his hearing at all. His complaint is really not a complaint. His complaint is really a request, a petition for an advisory opinion is what it is. An advisory on only one subject. An advisory opinion of what our Board member down there discussed with Nancy last time. Whether she has the power to make a ruling that, he help me out on this, whether it’s a violation of the County Ethics if it’s done by one of her employee. Whether she has that power or not, to determine or interpret the Code of Ethics. That’s all we’re in here for right now. Mr. Balsis: The interpretation. Mr. Henricks: So therefore, that’s all we’re going to do today. Ms. Noda: I beg to differ because in Mr. Drutar’s petition that was filed… Mr. Henricks: I told you what we’re going to do today. I don’t care what he said in the Petition. He goes all over the place in this Petition, I agree with that. But, the issue today is an advisory 3 opinion whether she has the power to make a ruling of whether the Code of Ethics has been violated, that’s it. Do you agree with me? Mr. Adams: I’m not sure that we’re even going to get to that level. Mr. Henricks: Okay. Ms. Schoen: But Mr. Chair if I might add. Mr. Balsis: Go ahead. Ms. Schoen: I understand what the Board, what Mr. Henricks has said, but I believe the Board should hear the position of both parties as to their request so that your record is clear, and they’re given the opportunity to put their position on the record. Mr. Balsis: Okay, I’m going to allow you to proceed. I’m going to ask you to move along that’s all. Ms. Noda: Okay. Well just outlining the County’s position. One of our threshold concern is that we’re handcuffed and can only talk in generalities about what the Department has done because it is involved with a confidential personnel matter. Second, I would, the County would orally request that this Board reject the request, or the Petition based on good cause pursuant to the Hawai‘i County Code Section 2-86 which sets forth, this Board may for good cause reject any Petition. Further… Mr. Adams: We’re now getting into areas that actually, in my opinion, require that Mr. Drutar now speak. The first part when you were talking about the threshold, no problem. Ms. Noda: Okay. Mr. Adams: Your comments are now comments that you would bring up after he’s had his opportunity to speak. In my opinion. Ms. Noda: Okay. Mr. Balsis: And that is correct. Ms. Noda: So just going and outlining our tiered position. Second, beyond the motion, in which the county would have to address specific matters, we would also request in the alternative that this Board continue Mr. Drutar’s petition until it’s moved on. Being that I have reviewed the September 11, 2013 minutes, at which time Judge Henricks indicated or recommended that any appeal process on the personnel matter of Mr. Drutar’s be completed before this matter comes back before this Board. That would be on the minutes of September 11, 2013, page 19. Further, our third position would be that, if the Board does not rule on either a motion to reject the petition or the request, nor does the Board continue this petition until moved back on at a later time when the appeal process that’s in place has been completed pursuant to the statute that I just 4 cited, our third request would be for a formal hearing. And that request would be from Ms. Crawford pursuant to Code of Ethics Section 2-87 formal opinions, and also the Board of Ethics Rule 6.2 that a formal hearing can be requested by the person charged, Ms. Crawford. Mr. Balsis: Thank you. At this time I’d like to ask Mr. Drutar to come forward. I think that we’ll continue with Mr. Drutar’s statement before we make a determination if we’re going to continue. Am I correct? Any disagreement with the Board? Mr. Drutar: If I may request initially a brief executive session so we can talk about some of these things because they are matters of confidentiality that I can discuss with the Board and then we can go back to an open session. Would that be agreeable? Mr. Balsis: Any thoughts from other people on the Board here? Mr. Adams: I’m not aware of the procedures, of those kinds of procedures. Either he’s going to make a statement on his petition or he’s not. Ms. Schoen: And my understanding is that your rules provide that either the Board is going to hear this in closed session or it’s not. So you cannot have part of your petition in closed session and then the other part not. It’s one or the other. Mr. Drutar: Ok. Mr. Balsis: On the petition itself it says open hearing. Mr. Drutar: Yes, sir. Mr. Balsis: And I’m going to ask that you abide by your employment rules of confidentiality and stick to the issue of the petition. Mr. Drutar: Absolutely. I understand. Mr. Henricks: I’d like to iterate or reiterate on what we’re going to do. But I’d like to say that we’re not getting into the facts of what happened. We don’t want to get into the facts of what happened. Like I said earlier, the appeal process can take care of the facts themselves. I wasn’t talking about the facts that occurred. I’m just talking about the legal position of whether she has the legal authority to interpret the County ethics code and make a violation, to call, that has been violated. And that’s the only thing, and that’s a legal position, that’s not a factual position. And he’s, I’m reading between the lines because many of these people file petitions and they don’t understand what they’re filing. So what we have to do up here, if you’ve been in court, you understand too. When you have people who go pro se, they don’t know what they’re doing so you have to sit there and determine what we can glean out of this to be the issue. And the only thing that I can glean at the issue is that the only thing for us is whether Nancy Crawford has the power to make a ruling on an ethics commission violation, an ethics code violation. Does she have that power? And that’s all. And that’s a tricky and legal issue and we do not get into any factual position of what occurred between him and the department at all. So therefore, I think 5 that’s all unnecessary. All the confidentiality is unnecessary because all we’re looking at is a legal position. That’s what I’m looking at. Mr. Balsis: From my review of the petition, I do agree with you. And you had something to say? Mr. Adams: I think the Petitioner is within his rights to ask for closed hearing at this point if he would want to do that. Mr. Drutar: It’s just one comment. I just wanted to inform that Board regarding my employment with the County, that’s it. Mr. Balsis: But again, if we go into closed hearing and you come out, we cannot be bouncing back and forth. Mr. Drutar: I understand that. Whatever you folks decide is fine with me. Mr. Henricks: To go further into what I’m saying is in my feeling in looking at this thing, if we find that she does not have the power to make a finding or a violation, a finding of a violation of the ethics code, she may have the power to have her department investigate an impropriety, but once she finds out there’s probable cause that there may be a violation, she should take it to us to make the final determination. That’s what I’m talking about the process would be proper. That’s what we’re going to determine, which is the proper process. And it’s strictly a legal process and nothing to do with facts. Anybody seeing what I’m saying yet? Mr. Adams: Absolutely judge. The problem that I have, is that we have a new petition before us and the petitioner has not had the opportunity to make a statement on his petition which I think according to our rules, the petitioner is authorized, I don’t know if authorized is the right word, he has the right to do that. Mr. Balsis: Correct. Mr. Adams: And so, either we’re going to go into a closed hearing because petitioner asked for it or we’re going to stay in an opening hearing cause petitioner asked for it. I still haven’t received a statement of whether or not you want to be in a closed hearing or an open hearing. And once we have that, then the petitioner has the right to make a statement on his petition. Mr. Henricks: The reason I’m doing this, again, Mr. Adams, is because I’m trying to close up what we’re discussing, so therefore they know what they don’t have to get into. They’ll know whether they have to get into the conversation or not. And if the only issues involved are legal issues, no confidential issues will come up because we’re not going into the facts of the case itself. So why would anything confidential come up? Mr. Balsis: Mr. Drutar, do you still want to have an open hearing? Mr. Drutar: I would prefer an open hearing. Yes, sir. 6 Mr. Balsis: Yes, so it being an open hearing, which I believe it would be the correct way to go at this juncture. Mr. Drutar: Yes, sir. Mr. Balsis: Please continue. Mr. Drutar: I’ll let my initial petition speak for itself. I apologize for jumping all over the place in there a little bit, but, the point I was trying, or the question I brought up exactly the one that Mr. Henricks seems to be addressing. It doesn’t get into any of the details, it’s whether or not Ms. Crawford and the Department of Finance have the authority to do ethics investigations and to determine those types of things. The only confidentiality thing I wanted to bring up is I’m no longer employed with the County of Hawai‘i. I was not fired. I left. I gave 2 ½ weeks’ st notice and I terminated my employment on January 31. That was the only confidentiality thing that I was really talking about. The rest of it I don’t think actually, the case, I agree with Mr. Henricks that’s for a different party, if it gets that far. There’s a process for that which hasn’t even been started by the Department of Finance which would include asking for a new formal advisory opinion from you folks. So to get into the details of that is moot. I’ll let the statement speak for itself, as my initial comments. Mr. Henricks: I’d like to address this to Ms. Noda. Ms. Noda, now that you know… Mr. Balsis: Ms. Noda, can you please come forward. Ms. Noda: Sure. Mr. Henricks: Now that you know what issue, I think that we should be looking at, are you prepared to go forward on that issue today? Ms. Noda: No. I was going to ask the Board for a ruling on Ms. Crawford’s request for a formal hearing. Our position is it quite a complex issue regarding managements rights, the departments rights, and the purview and the jurisdiction of this board. Mr. Henricks: I understand . That’s why we’re not taking this very lightly. That’s why I said it was a legal issue that has to be determined. What do, I’m not talking to just Ms. Crawford, I’m talking to all the department heads. Do they have a right to make findings of violations under the ethics code. Does any of them have that right or can they only make findings as to their own or the County’s rules and regulations. You understand what I’m saying? Ms. Noda: Yes I do. Mr. Henricks: I know they have a right to do that. But do they have the right to step into our area and say ok you have violated the ethics code therefore I can discipline you without taking it to the ethics commission. Can they do that? 7 Ms. Noda: Thus our request for a formal hearing, and I would request that the board make a ruling on that request if it’s not going to entertain the motion to dismiss or the request to continue it until moved on. Mr. Henricks: And if we granted you a continuance, you would be coming forward to argue that one issue right. Ms. Noda: If that is what the Board narrows the issue from the petition down to. My reading of the petition is that he’s asking for a second requested relief which is for this Board to overturn the department’s action. Mr. Henricks: I’ve already answered that one. That’s the one you said first that you quoted me, that was my answer to that one. Mr. Balsis: Excuse me. Counsel, before you continue. Go ahead, I’ll let you. Ms. Schoen: Well, I don’t want to speak for the County, but my concerns, I mean the departments that are represented here, but my concern for the Board is procedurally, you have a specific petition which has specific allegations. And so, while I’m hearing that the Board is moving toward the determination as to whether or not a department has the authority to find ethics violations, I think you need to address the specific allegations within the petition. And as I read the petition, it doesn’t have to do only with the ethics code. There are allegations regarding a violation of the County policy. So I think there is a mixture of, or maybe a mixture of human resources issues and the ethics code. Mr. Henricks: Do we have jurisdiction over human resources issues? Ms. Schoen: No you don’t. Mr. Henricks: Exactly. Mr. Adams: Are we in discussion now? Mr. Balsis: Yes, we will have our… Mr. Adams: In discussion? We’ve heard from the petitioner. Mr. Balsis: Yes. Mr. Adams: Is the petitioner done with his statement? Mr. Drutar: Yes, I’d just like to say, I’ve driven here from Kona. I’m prepared today. They had plenty of notice to be prepared today. I’d like for this to go today and not have to have the additional burden of coming back again if unnecessary, if possible. Thank you. 8 Mr. Balsis: Okay. We’re going to have some discussion here. If you could stay there in case we have some questions for you during our discussion. Mr. Drutar: Yes, sir. Mr. Balsis: Go ahead. Mr. Adams: I’d like to make a motion. Mr. Balsis: Go ahead. Mr. Adams: Based on our authority under 2-86 where it says, 2-86 c, where any petition which does not substantially comply with the foregoing requirements may be rejected. In addition, the Board may for good cause reject any petition. I’d like to make a motion to reject the petition, and I would do it for good cause because it fails to state a violation of a code of ethics violation that the board can adjudicate. So that’s my motion. Mr. Balsis: Is there a second to this motion before we go in discussion? Then we can go into discussion. Mr. Henricks: Alright, the reason I will not second your motion is as I said earlier, we do not expect petitioners to come up and go to the board and follow all the rules and directions, this is almost, and when petitions come in front of us it is almost like a small claims court. We have to go through the material we have and try to pick out what we can use, and what we can see and what we can do. Alright. He cited, the section he cited was 2-86. 2-86 is an informal opinion section, alright. That’s correct. That’s what he should be. And what he’s asking our informal opinion about is whether she had the right to use the ethics code to punish him and make a finding under the ethics code to punish him. I think we can make that advisory opinion about that because we are the ethics commission. We should know whether she has the right to use our ethics code or not. So therefore, I think that’s within our qualm. So therefore, the rest of it though, as I read it, the rest of the things he said, I consider superfluous verbiage because we are, cannot get into, as she said human rights, human resources decisions. We do not make those findings, and that’s why I told him he had to wait until it went all the way to the appeal process on that area. But I think we can go into the legal area of what the authority of the department is as to using the ethics code as a tool. So that’s where I’m at. That’s why I will not go forward with that. Mr. Balsis: Glen, do you have any comments? Mr. Hisashima: No. Mr. Balsis: Doug, you can continue. Mr. Adams: Judge I understand what you’re saying. I really do. My concern is that we’re going, that we’re looking at trying to make a decision on the basis that doesn’t exist in the code. As I look through the code, and you’re right, we have 2-86 and 2-79(3), is what the petitioner 9 used as the specific sections, neither of which are codes of violation. These are procedural codes. Typically you wouldn’t use, it would seem to me, not ever having been a judge, that it would seem to me that you wouldn’t use procedural codes as the basis for perceived violations or claims violations. But even beyond that, even if we say we’re going to move beyond that because there’s an area that we think is important which is the bottom line, did the department of finance violate the code of ethics when it investigated on its own without coming to the board for an informal advisory opinion. Even if we do that, we still then have to specifically say an individual because the code specifically asks us for specific individual, not a department. That’s what the code specifically asks us to adjudicate on. So now we’re talking about specifically, I would assume, the director. So the question is did the director violate the code of ethics by investigating without coming to the Board of Ethics for an informal advisory opinion or formal opinion. As I look through the code when I, if I took that as my question and I look through the code, and I try to determine is there somewhere in the code that I can hang an answer on, I have difficulty finding somewhere in the code for me to hang an answer on. Mr. Balsis: I’d like to make a comment. I think you’re talking about the issue, was the Director of Finance in violation of our code by going through the investigation. And I think it’s clear that she is not in violation of the code by going through the investigation, if I’m correct from the other opinions here. The question is was she in violation of things when she interpreted our code. And that is the question that Mr. Henricks is asking. Mr. Adams: I’d be happy to be proved wrong. Mr. Henricks: Okay. I don’t want to prove you wrong. I think we’re not communicating properly because what I’m trying to say is under 2-86 we don’t have to find a violation. We don’t have to say anybody violated anything, all we can do is give an informal advisory opinion of what he’s asking us for. Can she do that or not? And it doesn’t’ have to be called a violation. And that’s, I guess that’s our only difference right there you know, to sum it up. Ms. Schoen: Mr. Chair, can I, because we’re so, a lot of this is procedural as to how the board is going to proceed in accordance with your rules… Mr. Balsis: That is correct. Ms. Schoen: And statutes, I would ask that we go into executive session so that I can speak with you as to your options and the procedures and things. Mr. Henricks: Alright, okay. Let me make this proffer then. You don’t have to return anymore if you don’t want to because all the issues are out here now. Your presence would not really be necessary. Would that be correct with the Board, just so he doesn’t have to drive back and forth to Kona every time issues are up here. What I’d like to propose and if we can do it acceptably, I’d like to propose that we put on a motion, if it’s acceptable. Ms. Noda, since you know what the legal issue is that I’m getting at, would you like to work on that legal issue and see if she does have that authority or not, until we come back at a further hearing. Ms. Noda: That’s our request for formal hearing. 10 Mr. Henricks: Yeah, that’s what I’m saying. Okay, I can grant a continuance to allow that to come forward on the next advisory opinion hearing as to whether she has that or not. And at the same time she would have to go through the procedure part to see where we’ll go. So when get the next time, either we go or we don’t. Is that alright with the Board? Mr. Balsis: I think that at this point in time we should go into executive session for a short time to discuss the procedures and then make our determination. Mr. Henricks: No. We’re going to allow her to research the procedures on whether we can do this or not and we’re going to allow her to research the issue of, the legal portion, question of whether she can. And by the time we come back next she’ll tell us whether we can do it or not. And if she says that we can then you be prepared to answer it. Alright. Would that be… Ms. Noda: I respectfully object to that proposal for several reasons. Mr. Henricks: Okay. On what grounds. Ms.Noda: If Mr. Drutar is not present at the next hearing then he is not subject to cross examination. If we have any matters that we need to address regarding the position that he has set forth in his petition or what he has just presented to the Board. Mr. Henricks: What would he have to testify to? I just issued a legal issue to you. He can’t testify to the legal issue, you just want him to come in? Ms. Noda: The County cannot be restricted to its presentation or testimony evidence at a later date and so his failing to appear at the formal hearing would really restrict us preliminarily before we’ve had a full opportunity to flesh out all the issues and his specific position. My second concern is if the formal hearing is granted and Mr. Drutar does not object I would ask that on the record today that there be clearly, that he is waiving his significant interest on the record knowingly, intelligently and voluntarily for any and all matters that are related the Department’s personnel investigation and subsequent action. Because really, if he doesn’t do that we’re still, like I said again, we’re handcuffed because we cannot fully address and we may be violating state law. Mr. Henricks: I totally disagree with you. Completely disagree, all the way down the line. Number one we cannot ask him to waive anything at this point without counsel on all the issues that you mentioned because they’re very, very complex. You should have a right to a lawyer, talk to him over this. He’s got to go to a hearing, he’s got to find out what happened to him from the County level, and you want him to waive all that? Ms. Noda; Well, preliminarily we could go to the position that just by virtue of Mr. Drutar filing the petition that was a waiver because he’s put it on the table and made it public, even what little is already listed on the agenda. However, out of an abundance of caution, for the rights of the County to be able to present their position fully and clearly and thoroughly, we also, Ms. 11 Crawford, as the respondent has that right also. Just because Mr. Drutar is pro se at this point doesn’t erase all of the County’s rights. Mr. Balsis: And I think at this point in time, the Chair would like to move, or the Chair moves to go into executive session to get legal opinion from the Board’s counsel, and we will proceed as soon as we are finished executive session. Is there a second to this motion? Mr. Adams: Second. Mr. Balsis: There’s a second to this motion. All those in favor of this motion please say aye. Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Aye. Mr. Balsis: All those against. The motion passes. We’ll go into executive session, if everybody can leave the room, we’ll open the doors as soon as we’re finished. Thank you. 10:32 a.m. The Board left regular session. * * * * * 10:58 a.m. The Board was in recess. Mr. Balsis called the meeting back to order at 11:05 a.m. Mr. Balsis: We are continuing the review of Petition 2014-01. And the Board would like to make a statement and then open up for discussion here, and that is the Chairman would like to limit the issue about this particular petition, to the authority of the Department to find a violation of the Code of Ethics, and then sanction specifically on that finding. In addition, if there are other issues regarding a sanction, then those are other issues that may not be, or are not of concern to the Board of Ethics. So we’re only looking at the authority of the Department to find that violation. Is there any discussion here amongst the board on that? Any agreements, disagreements or. Mr. Adams: I think as we take a look at the petition from the petitioner, as we take a look at the petition from the petitioner, the highlighted area here which asks for 3 separate elements, in my view we are not, we don’t have the authority to look at 2 and 3. And so what I hear the Chairman talking about essentially, is us looking at element 1 and I would be in agreement that we should do that. Ms. Schoen: Mr. Adams could you just point out where you’re looking at. Mr. Adams: This is page 3 of the Petition. You have the coversheet and then you have 2 and 3 and then you have the highlighted or bolded place there. So you have 3 sentences. Sentence 1 is element one in my understanding, sentence 2 establishes element 2 and element 3, which I don’t think we have the authority to handle and then third sentence is a statement. 12 Ms. Schoen: Thank you. Mr. Balsis: Is there a need for further clarification? With that in mind I’d like to ask at this point in time, Mr. Drutar, do you have any comments, further comments to make? Mr. Drutar: Thank you. Just very briefly. The first function of the Board of Ethics is to interpret the Code of Ethics for county officials. If they’re going to interpret it on their own then what’s the point of the Board of Ethics. That’s, it’s just that simple to me. That’s really the question that I have, and it’s the basics. I respect all your opinion on that and then I don’t know that I need to comment any more on it. Mr. Balsis: Okay. Counsel for the Department. Do you have any comments on, specifically on what we have just noted here in our brief discussion? And that is limiting the issue about the authority of the Department to find a violation of the Code of Ethics and sanction thereon. Sanctions that a department may have on an employee other than that directly from the findings of the Code of Ethics. That’s the Department’s venue, the venue for discussing them, or appealing them, are not at this place they would be someplace else. Are you in agreement to looking at that issue only? Or that is the issue we’re looking at. Ms. Noda: Right. Mr. Balsis; So do you have any comments on that? Ms. Noda; No, I’m just needing clarification that would we be going forward on issue number 1 today or would the Board be granting the County’s request for a formal hearing on issue number 1. And then procedurally I don’t know when the Board makes the ruling on issues 2 and 3. Mr. Balsis: We are not going to make any rulings on number 2 and 3, they are, those other 2 sentences in that bolded area are out of our sphere of influence. Mr. Henricks: We’re not directly looking at what the Department did in that hearing. We’re only looking at that one issue. The rest of the hearing is not within our kuleana. You understand. Ms. Noda: Alright. If that’s what the board has distilled it down to. Mr. Balsis: Yeah, that’s just what we discussed here. And in distilling it down to that, and I like your word, so I used it, do you have any comments on that. Do we need to go into a formal hearing, I don’t see why we might. Does anybody here see that need? Mr. Henricks: I don’t because I think it’s merely an issue of the law. We don’t need any evidence to be brought forward. Mr. Adams: We’re not looking for that, we’re not looking for explanation from the Department today. 13 Mr. Henricks: None whatsoever. Mr. Adams: So we’re talking… Ms. Schoen: So you’re saying that you would be moving it to another day, or continuing this to another day. Mr. Balsis: We would be more than happy to continue this to until April. Ms. Schoen: And would it be on the basis of an informal or a formal? Mr. Balsis: I would think it would be on the basis of an informal hearing, and we would give an informal opinion. Ms. Schoen: Okay. It’s certainly within your purview to do either, informal or formal. Mr. Balsis: Are there any discussions about this? Mr. Henricks: Ms. Noda, what I’m trying to get across to you is that I don’t see any reason for any cross examinations, so forth, so forth and so on, because the only thing we’re narrowing it down to is a legal issue. So therefore there are no facts to come forward. So therefore, you have the ability, when we give you a continuance, you have the ability to come forth and answer that legal issue, whether we have the authority or not. Mr. Balsis: We’re not asking you the basis on which the letter was written, that is within the petition. We’re only looking at the action of the Department in finding a violation from the Code of Ethics. Mr. Henricks: Understand what we’re saying is that we have a Code of Ethics here, and anybody can go out and say okay we’re going to use the Code of Ethics and we’re going to use it to discipline or control our employees. Okay. You may want, you may want to use the Code of Ethics if you want to make department rules to track the Code of Ethics, but you cannot find a violation of the Code of Ethics. But if you make rules that track it, you can make violations of your own rules, you understand? But you cannot say we are finding you in violation of the Code of Ethics. That’s what we’re getting to. So, therefore, that’s the issue. Ms. Noda: The reason for the County’s request for a formal hearing is that we would like a clean, clear and thorough record of what has transpired before the Board makes its decision. This Board’s decision has a ripple effect on all the County departments way beyond Mr. Drutar’s request and petition. Mr. Balsis: I hear what you just said. Ms. Noda: I don’t want to go into argument but on one hand a ruling by this Board could entail then a number of departments flooding the Board with requests for informal opinions. On 14 the other hand, if the Board’s instruction ends up being department or County do your, make your own ethics policy, and don’t cite to the County Code then on the flip side, then an employee may come and say, how can the department or the County have its own ethics policy when it’s clear that it’s in the County Code already, and that everybody’s supposed to be coming to this Board. Mr. Adams: Right. And these points that are quite capable of being handled in an informal hearing as well. There’s nothing that we wouldn’t, as any opinion that we give, the opinions we give have Finding of Fact and Conclusions of Law. And so, that’s going to be whether it’s an informal hearing or whether it’s a formal hearing. Mr. Henricks: Can I inquire? Did you said it would probably have far reaching effects throughout the worldly County of Hawai‘i. Do you know of any other County departments that are doing this? Ms. Noda; Yes. Mr. Henricks: Can you give me one? Did you hear of one? Ms. Noda: Yes. Mr. Henricks: One. You have? Recently? Ms. Noda: Yes. Mr. Henricks: Okay. Any more than one? Ms. Noda: Currently, possibly. Mr. Henricks: Okay, then it is far reaching as you would say. Okay, never heard of it. Ms. Noda; If I could inquire at the informal hearing though, it would just be our presentation and argument, and not witnesses under oath? Mr. Balsis: That is correct. Ms. Noda: So, at an informal hearing would we be able to present the legislative history and the intent behind the drafting of the County’s Code of Ethics? Or perhaps, if relevant, the State’s? Mr. Henricks: You can present anything you want to this Board that would substantiate your position that you have that authority to make that finding. You understand? Anything you want to show that Nancy Crawford has the authority to find a violation of the Ethics Code. Anything you want and we’ll look at it. Alright? Mr. Balsis: Do you have a question of clarification? 15 Ms. Noda: Yeah. There’s so much either legislative history or collective bargaining history that goes in, that plays into this, regarding management’s rights. Mr. Balsis: Would you be able to synopsize it? Ms. Noda; But then it’s not evidence. Mr. Henricks: No, but it’s a legal argument. Mr. Adams: No, no, no. If you take a look at our, without stepping on counsel, if you take a look at 2-86(b), it doesn’t talk about evidence. It talks about affording the officer or employee an opportunity to explain the conduct alleged to be in violation. You had the ability to explain, so however you do that, and whatever means you use to do that, is entirely within your purview. I think the judge was trying to say that too. Mr. Henricks: Ms. Noda when you, when you write a brief, and someone’s briefing a legal position, most of that is not in the evidence it is? None of it’s in evidence. It’s just citing authority right? Ms. Noda: Perhaps I should just ask the Board to make a ruling on a request for a formal hearing. Mr. Balsis: Is there a motion to have a formal hearing on this matter? Okay, the Board will, I the Chair, move that we have a formal hearing. Is there a second? And then there will be discussion and then we vote on it. Mr. Adams: Okay. Second. Mr. Balsis: Is there any discussion on having a formal hearing? Mr. Adams: As I think I said previously, anything that we’re going to provide as a ruling on this issue is going to have Finding of Fact, it’s going to have Conclusions of Law as a part of that ruling. Whether it’s done as a part of an informal hearing, or as a formal hearing. The information that you can provide actually, I think is probably going to be, I don’t know, correct me if I’m wrong counsel, but is going to be more expansive in the informal side. But, in any event, whatever you want to bring in on this issue we’re going to be able to listen to. Mr. Balsis: Any further discussion on this. Mr. Henricks: Yes, and if it’s going to be very lengthy that you submit something, or if it’s going to be very lengthy submit it ahead of time so we can read it ahead of time because we won’t have to sit up here and read it at the time you submit it. Okay. Ms. Schoen: I don’t want to speak for Ms. Noda, but I would think her concern would be whether or not the record is clear enough such that if the Department disagrees with this Board’s 16 decision that they can therefore appeal, whatever to Circuit Court or whatever. And what I’m hearing the Board say is that your Findings of Fact, Conclusions of Law will incorporate whatever position the Department has and whatever position Mr. Drutar has. Is that right? Mr. Balsis: Yes. Ms. Schoen: Okay. Mr. Balsis: Any, did I answer that incorrectly? Any discussion on my answer from the rest of the Board? Okay, then with no further discussion there is a motion that has been seconded to have a formal hearing. All those in favor say aye. All those opposed. Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Nay. Mr. Balsis: There will not be a formal hearing. There will be an informal hearing. Point of th information I will not be here in March, the week of March the 10 so we’ll move the… Ms. Schoen: Well, Mr. Chair, before you do that, the Board needs to move on whether or not it’s going to proceed with the informal hearing. Mr. Balsis: Ok. Is there a motion to proceed with an informal hearing on Petition No. 2014-01? Mr. Henricks: I so move Mr. Hisashima: Second. Mr. Balsis: All those, any discussion? Mr. Adams: As a part of the motion, what we’re going to look at are the items that the Chair specifically addressed previously in the discussion. Mr. Balsis: That will be so noted in the motion, that the informal hearing will be limited to the issue about the authority of the Department to find a violation of the Code of Ethics and sanction on the basis of that. Mr. Henricks: Alright. I second. Mr. Adams: You made the motion. Mr. Henricks: The motion wasn’t me. Mr. Hisashima: Second. Mr. Balsis: And it’s been seconded and this is the discussion. The clarification of the motion was made. All those in favor. 17 Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Aye. Mr. Balsis: The motion is passed. In terms of the date of the informal hearing, I will not be here in March. I will be off island. Mr. Adams: I will be off island as well. Mr. Henricks: Ms. Noda do you request that the complainant be here at the time of the next hearing. Mr. Balsis: In April. Ms. Noda: In April? Mr. Balsis: Yes. It’ll be the second Wednesday of April. Mr. Henricks: Do you need his presence? Ms. Noda: At this point, I don’t know. But at this point out of an abundance of caution I would request that that he be present for cross examination. Mr. Balsis: Mr. Drutar, if at all possible please be here. That would be the second Wednesday of April. Mr. Drutar: Yes, sir. Mr. Balsis: Thank you. Ms. Noda: Can I ask the date? I know I have an arbitration scheduled in April so it depends whether it conflicts with this Board’s usual meeting. th Ms. Schoen: It would be April 9. Ms. Noda: Wednesday, okay. Thank you. Mr. Henricks: As I stated, Ms. Noda, if you want to submit a lengthy brief can you submit it ahead of time so we have some time. Ms. Noda: Sure. Mr.Henricks: Because if you submit it the day of the hearing, it’s going to not be done again, and we’ll end up with another continuance. You understand that we’re leaving it open at this point. We don’t know if we have that, if she has that authority or not. Ms. Noda: Correct. 18 Mr. Henricks: So therefore, you can try to convince us one way or the other. Ms. Noda: Mr. Chairman would you be ordering the County to submit a legal brief by prior th to the April 9 date certain? Mr. Balsis: We’re asking that if you’re going to submit anything in writing that is lengthy, please give us the courtesy of submitting it in sufficient advance, that we would have sufficient time to review it properly. Ms. Noda: Okay. Mr. Henricks: That’s all. You don’t have to submit anything if you don’t want to. Ms. Noda: Will do. If that’s the usual process rather than a post hearing memorandum ok. Thank you. Mr. Balsis: Moving on with our agenda, we’re finished with new business. We’re going to move on to Petition No. 2013-05 and that’s the review draft order dismissing petition by Michael Drutar alleging that County employee Mary Ann Todd-Waller is in violation of Section 2-84(a)(1) of the Code of Ethics because she was assigned to appraise her own property and set the assessed value of the land of her primary residence. That draft order has been circulated. Has everybody had the opportunity to review it? Mr. Hisashima: Yes. Mr. Balsis: Are there any questions, comments, additions, deletions, modifications? The Chair moves that the petition dismissing, the Chair moves that the draft Order Dismissing the Petition be approved, be accepted. Mr. Henricks: I second. Mr. Balsis: Motion’s been approved, made and seconded. Any discussion? All those in favor? Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Aye. Mr. Balsis: Petition No. 2013-06. Review draft Informal Advisory Opinion regarding the petition by Michael Drutar alleging that County employee Marilyn Veincent is in violation of Section 2-84(a)(1) of the Code of Ethics because she was assigned to appraise her own property and set the assessed value of the land of her primary residence. The Board found a violation but also recommended that no sanctions be taken against the employee because the violation was due to a policy decision by the employer. That was very well specified in there and I believe that also answers anything that was in the letter of Patrick Taketa. Has everybody had the opportunity to review that petition, or that Order? 19 Mr. Adams: Yes. Mr. Balsis: The Chair moves that the draft Informal Advisory Opinion be approved as discussed, is there a second? Mr. Henricks: I second the motion. Mr. Balsis: The motion has been made and seconded. Is there any discussion? Mr. Adams: Yes. As we take a look at item 21 of the findings of fact. Mr. Balsis: Yes. Mr. Adams: Item 21 says despite finding a violation of HCC Section 2-84, the Board moved that no sanction be taken against respondent because this was a policy decision and not an employee decision. Mr. Balsis: Correct. Mr. Adams: As I go back to our minutes, we did make that motion initially, but then we changed it to a, it was amended that is, and the amendment was, is that we recommend no sanctions be taken against this employee. Mr. Balsis: That is correct. We recommended. Mr. Adams: That’s right. So, unless I’m incorrect here we should probably make that, so in 21, I ask for a correction to that, where it’s, the Board recommends. The motion was a recommendation, not that there were, cause we don’t have the authority on the no sanctions. Ms. Schoen: That’s fine Mr. Adams and that is also reflected in the Conclusions of Law number 5. Mr. Adams: Number 5. Right, I understand that, right. Mr. Balsis: That’ll be fixed. So I call for a vote with the fix to ensure. Mr. Adams: Right. And then the other thing Mr. Chair is you’ve made this comment and I’d just like to make it as a part of the discussion on the motion, is that we take notice of Mr. Taketa’s letter in response, in regards to this particular petition as well. Thank you. Mr. Balsis: So I call for a vote with the fix which helps the consistency in the Order. All those in favor. Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Aye. 20 Mr. Balsis: Moving on to Petition 2013-09. This is a review of draft Informal Advisory Opinion as requested by Gerald Takase, Director of the Department of Liquor Control, regarding whether there would be any conflict or impediments to his serving as a per diem district court judge in the Third Circuit, while continuing to serve as the Director of Liquor Control. Has everybody here had the opportunity to review that informal advisory opinion? Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Yes. Mr. Balsis: The Chair moves that the opinion be approved as presented to us. Mr. Henricks: Second. Mr. Balsis: Is there any discussion? All those in favor of accepting this Informal Advisory Opinion. Mr. Balsis, Mr. Henricks, Mr. Hisashima, Mr. Adams: Aye. Mr. Balsis: The Chair moves that we go into executive session to review the executive session minutes of January 8, to review confidential financial disclosure forms, and consult with our attorney as need be. Is there a second? Mr. Henricks: Before moving into executive session, I’d like to be excused at this time. Mr. Balsis: That’s fine with me, so excused. You may have quite a few financial disclosures to review the next time. Mr. Adams: You’re coming back though? Mr. Henricks: No I’m not coming back. You have a quorum here so you can do the financial disclosures without me. Mr. Adams: With the exception of our own. Mr. Henricks: Right. Mr. Balsis: Which he’ll see next time. Mr. Adams: I see, ok. Mr. Balsis: You’re excused. 11:30 a.m. The Board left regular session. 21 * * * * * 12:50 p.m. The Board returned to regular session. 7. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of January 8, 2014. Motion and vote: Mr. Hisashima moved to approve the minutes with the corrections noted in executive session. Mr. Adams 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. The Board postponed the approval of all the financial disclosures until members finished reviewing them. 8. ANNOUNCEMENTS Mr. Balsis announced the Board’s next meeting: April 9, 2014 at 10:00 a.m. at a location to be determined. 9. ADJOURNMENT Mr. Balsis adjourned the meeting at 12:52 p.m. Respectfully submitted: Renee K. Lawrence, Secretary 22