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HomeMy WebLinkAbout2014-04-09 Board of Ethics Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, April 9, 2014 10:00 a.m. to 12:34 p.m. County of Hawai‘i Aging and Disability Resource Center 1055 Kino‘ole Street, Suite 101 ADRC Training Room Hilo, Hawai‘i 96720 Members and Staff present: Bernard Balsis, Vice Chair Arne Henricks, Member Glen Hisashima, Member Douglass Adams, Member Ku Kahakalau, Member Renee N.C. Schoen, Deputy Corporation Counsel Renee K. Lawrence, Secretary 1. CALL TO ORDER Mr. Balsis called the meeting to order at 10:01 a.m. Mr. Balsis agreed to hear the agenda out of order to allow Bobby-Jean Leithead-Todd to testify regarding unfinished business described as follows: a.Petition No. 2014-01: Informal hearing of petition by Michael Drutar and whether the Department of Finance may find a violation of the Code of Ethics and sanction on the basis of that finding. Ms. Leithead-Todd: Good morning. For the record, my name is Bobby-Jean Leithead- Todd. I am currently serving as the Director of the Department of Environmental Management. However, in a prior life, I served as Chair of the Board of Ethics. Then subsequently, was the County Council when we addressed some changes which I had started initiating when I was on the Board to the Code of Ethics. And then, among the many hats that I ended up wearing, I later joined Corporation Counsel and was the attorney assigned as the counsel to the Board of Ethics. During that period of time, I pushed to produce a brochure that we could hand out on behalf of the Board of Ethics and I believe that Board subsequently, after I left Corporation Counsel, actually adopted the ethics guide as material that you could hand out. I was contacted by Diane Noda and basically asked to come and give some of the history and some of the thought that went into our amendments to the Code, and what I was doing when I was on the County Council, we were doing amendments. But I also thought I’d give some perspective as a Department Head. When you have an employee and you’re doing an employee investigation, you frequently will cite to multiple issues that could be a potential violation. For example, we had employees in my department that were accused of misappropriating gasoline. While that’s a violation of the Code of Ethics, it’s also a criminal violation, it’s you know, multiple things, and so if you’re 1 investigating and you’re going to discipline them, you will cite every possible provision that they have violated in your disciplinary action. And the concern I had was the potential for the Board taking a position that as an employer, as a Department Head that I could not cite to the Code of Ethics in disciplining employees, because I feel that it’s part of the arsenal of things that you can go to. You could say that it’s a violation of the e-mail code, that says that you can’t use the email for personal use. You could say it’s a violation of the Code of Ethics, and you could also cite to whether there were other provisions, either in Department rules or in State law or in the County Code and you would cite to all of those things in disciplining. And the reason that I was concerned about saying that I couldn’t is you typically have a relatively short timeline in trying to discipline. Because the way we discipline employees is sometimes while we’re doing an investigation we suspend them without pay. And it’s much faster for us to do the internal investigation and come to conclusions, then to leave them out without pay while we would seek an opinion on whether I could cite to the Code of Ethics. I don’t believe that my citation would necessarily be definitive, in the sense that the employee, if they disagreed with my citation to the Code of Ethics, they could go to the Board and ask for an opinion. If the Board would then render a decision contrary to what was in my disciplinary action then that part of the disciplinary action would be basically invalidated. But if there was, well let’s say that you said stealing gasoline was not a violation of the Code of Ethics, it would still be a basis under other laws for me to discipline. It would just mean that I would have to amend the disciplinary action to say that while it’s a violation of other laws or other codes, it’s not a violation of the Ethics Code, but it wouldn’t invalidate my disciplinary action, it would just amend it. It would be different if the sole basis for my suspending somebody was my conclusion that they had violated the Code of Ethics and then they asked for an opinion and the Board subsequently said, no it’s not a violation, because the Board would be the final arbiter. And in the case where it was the sole basis for disciplining somebody, then it would invalidate the disciplinary action. But if there were other valid basis for disciplining an employee then the fact that you cited to the Code of Ethics would not invalidate the disciplinary action. And that’s basically, because part of the problem is that the Code does doesn’t say that you have to seek an opinion. The language in the Code says you may ask an opinion, and in common practice, my experience was that the majority of cases that came before the Board, this was my experience when I was on the Board, were either employees trying to ask in advance of doing something whether it would be a violation. It would be typically somebody who was going to start a business or take a secondary job and they wanted to make sure that they weren’t going to get in trouble. So they would, out of an abundance of caution, come and ask the Board first, so that they could subsequently waive the opinion and say, I didn’t violate the Code by taking that job. So that was a substantial segment of the opinions that we had to deal with. The other were primarily members of the public who would make allegations and file claims against elected officials or County employees, and they would make allegations that there had a been a violation and those would come. There were virtually no cases that I have ever saw while I was on the Board or the attorney for the Board where you had a Department asking whether an employee had violated, and it may be that if you want to go in that direction that you feel that it cannot be used, that you need to amend the Code and make some things mandatory as opposed to a choice because it does say may, but I would be very concerned about going to a road where you would ask or want every Department to adopt their own Code of Ethics and then, you know, discipline employees based on adopting rules similar to the Code because the danger there would be you would have multiple Departments with multiple sets of rules that might vary from each other, and so I think that would be very 2 difficult and unwieldy. It’s better to have one Code of Ethics that governs everyone, so just, you know, providing some of the thought that I had in terms of when we were making amendments, and some of the thoughts I had when I both served on the Board and as well as being a Department Head. Mr. Henricks: One question. Do you have a copy of the Ethics Code in front of you anywhere? Ms. Leithead-Todd: No I don’t. I have an excerpt from a particular provision. Mr. Henricks: Now I want to ask you a question. It’s a legal question, I think you can help me out with. Ms. Leithead-Todd: Okay. Mr. Henricks: Since you have the most experience of anybody in the room with this particular document, on 2-91, it’s the page I had it open to, it states in 2-91, appointing authority, and it says in addition to the other parts, an appointing authority may have to discipline. Okay, my problem now, I went through this whole Code and I could never find out what appointing authority meant. Ms. Leithead-Todd: I would read in its normal sense and say that that would refer to the employers or… Mr. Henricks: That’s the only way you can read it right? Ms. Leithead-Todd: Yeah. Mr. Henricks: It’s a bad word, isn’t it. It’s a very… Ms. Leithead-Todd: Well that’s something that you may want to clarify because…. Mr. Adams: It’s not in the definitions. Mr. Henricks: There’s no definition at all and it’s a bad usage because it’s very ambiguous to what it means. So I’m going to take it, from what you said, I’m going to take that means employer, alright. Is that right? Ms. Leithead-Todd: Well that’s normally I what I would say that appointing authority is the person that employed or appointed or hired. Mr. Henricks: Because the ambiguity you have is employers, employees that are appointed and employees that are Civil Service. You see, so when you use the word appointing authority, there’s ambiguity there. See what I mean? And people like appointed authorities, like the Mayor is an appointed authority. Now, is anybody else an appointed authority, you see what 3 I’m saying. It’s very confusing at that point, so I’m going to take it as your interpretation, because that’s the only thing that I think will work is as you said, employer. Ms. Leithead-Todd: Well the other thing is to not read it to include employer… Mr. Henricks: Yeah. Ms. Leithead-Todd: …would kind of gut the ability of anyone to use the Code as a means of discipline. Mr. Henricks: Well I just wanted someone to play with that word like I had to. Ms. Leithead-Todd: Yeah, and I agree because otherwise, then the only County entity that could discipline would be somebody who technically appointed and in that case it would be primarily the Mayor and maybe Council Members who appoint their staff, but everybody else is technically hired as opposed to appointed to a job. Mr. Henricks: Exactly so that’s why I say I accept your interpretation because I think I would make the same one. So I just wanted a second opinion on that. Ms. Leithead-Todd: Yeah because otherwise it makes an absurdity of the whole section. Mr. Balsis: I have a question, you were talking about appointed authority and employer, is not a Department Head appointed? Ms. Leithead-Todd: Yes, and confirmed. Mr. Balsis: And confirmed. Ms. Leithead-Todd: And when we hire employees within our division we essentially are an appointing authority in that I sign off on every piece of paper that goes through when we decide to hire somebody. I actually sign off as the person approving their hire within my Department. Mr. Henricks: Yeah, that’s my question so give me back my book. Ms. Leithead-Todd: Okay, you can have your book. Mr. Adams: I do have a question if I could. The comments that you make, first of all, thank you for coming and making your comments. The idea of, that folks can come in whether they’re agencies, whether they’re employees of the County, whether they’re members of the citizenry, may ask for an opinion of the Board, that’s true, that’s included inside the Code. The idea that the Board only, the Board therefore, is only one of many that can give opinions because folks can decide whether or not they’re going to come and provide, ask for those opinions, though I’m not sure I necessarily get from A to B. And I use as an example our courts. This is an adjudicatory body by in large, and so of court system as well, there are different procedures that have been set up, but just because court system, just because people have the option of 4 bringing a civil suit to the court doesn’t mean that other entities, particularly administrative entities, necessarily executive entities also have the authority to decide those suits. Nobody would say that because a court didn’t take, or because somebody didn’t bring it to our court that that court’s jurisdiction is subsumed by an executive agency. And so, I’m struggling with the idea that just because there is an option by various members of the County the whole variety of us that can bring a concern to the Board that that means that the Board is only one of many that can interpret and provide a finding of violation to an ethics violation, when in fact the Code itself talks about the Board being the entity that interprets ethics problems for County officers and employees. Ms. Leithead-Todd: In all honesty I have multiple occasions in which Departments and County employees would send requests to Corporation Counsel because they were trying to avoid going to the Board of Ethics with a publically noticed hearing. So they would say, hey, if I do x, y, and z, is that going to be a violation. And we would render, as the attorney, we would say well, you know this section of the Code says this, and based on, you know, prior decisions, this clearly looks like you will be found in violation, and then they go, okay then I won’t do that. Because what they’re frequently looking for is, there are a lot of people who don’t want to end up on your agenda with their name on it because even if it’s confidentially held their name is on the agenda and then it becomes Department Head seeking, you know, opinion, and then people start speculating why are they seeking an opinion, and why is it being held confidentially because they have that right. So a lot of times we will get Department Heads and employees asking, you know what about this and we’ll say, you know at the end, in terms of whether you want to do this, you are basically risking. So we’ll render opinions as to whether we think it’s a violation and there were multiple times in which employees and elected officials would decide not to do something and it was kind of with the caveat that it wasn’t a formal opinion, it wasn’t a public opinion. But, you’re basically telling them the odds are that, we’re rending a decision in the sense that the odds are if you actually go to the Board of Ethics this is going to be found to be a violation of the Code. My concern in terms of just the employees is that you want to cite all the possible things that they have been found to be in violation of. And so, you might say, hey that this is stealing. No it’s not a court, if you want to get a criminal, you know, adjudication then it’s got to go to court, but I don’t think you want to tie my hands and say that I couldn’t say in my disciplinary action that you broke the law by stealing gas from the County. I wouldn’t want to have my hand tied and not be able to say that, oh this was a violation of the Code of Ethics because the Code of Ethics says that you can’t take government equipment for personal use. I would want the full arsenal in my investigation and sure, I could fire the employee and if they’re subsequently found possibly in a criminal proceeding not to have stolen, they got some defense for that, then that might invalidate my disciplinary action. But, I have to act very quickly and generally when you’re looking at things, you do it with a lot of thought and you do it independently, you have people assigned to it and you want to cite every possible thing that they have done wrong, whether it’s the email policy, whether it’s the Code of Ethics. The concern I have is that if you tie the hands and say that I can’t put that in my letter when I’m disciplining somebody that it’s a violation that in many cases it’s almost rendering the Ethics Code useless in terms of being able to discipline employees if I have to go to the Board of Ethics every single time that I want to put that into a disciplinary action, and part of that is the amount of time I have to try to process something before I can discipline someone. It’s in the County Code, it says that, you know I can use any other actions available to me, but if you’re going to go down that road, 5 then you, I think you need to amend the Code, you need to say, that one, you have exclusive jurisdiction to render opinions on whether something’s a violation of the Code. But I also am just concerned about the time it would take because we also have union contracts. I can suspend somebody without pay for a month. After one month then I have to start paying them salary, and my concern is if it took a long time to go through the process with the Board of Ethics to get a hearing, to get it on your agenda, then one I could have an employee potentially a month without pay and then they would still be suspended pending your decision but I would be paying them. Part of it is it’s just an economy of time and so I would just caution that I really wouldn’t want my hands tied. But if you’re going to go down that road, then make it real clear to Department Heads that you can’t cite. Mr. Adams: So one quick follow up. So in the situation that you’re talking about, when you use these, stealing gas, do you, in the violation letter, whatever it is that is provided in terms of the investigation and finding, is that conduct that is being investigated and found in violation, is that based on Code. Are you using Code as a part of that or is that based on some other policy that’s already a part of the Department? Mr. Balsis: I think what Ms. Leithead-Todd was mentioning, is that in that particular instance, she’s using the Code, she’s using a variety of things. Ms. Leithead-Todd: I’m just using that as an example. Mr. Adams: I understand. Ms. Leithead-Todd: In a disciplinary letter I would cite to every, I would want to try to cite to everything that is a possible violation. I would say hey this is… Mr. Adams: To include County Code? Mr. Balsis: Correct. Ms. Leithead-Todd: …violation of the law because you stole gas. Does that mean that they do jail time or something, no because I’m not a judge. Mr. Adams: No, no, no, I understand that. Ms. Leithead-Todd: But I would also say that the County Code also says that you cannot take government’s property for personal use. And then if there were specific rules on the way you access or use your card, or if you signed any documents saying that you were going to use it a certain way, then I would cite to that because I would want to cite to as many possible authorities… Mr. Adams: I understand. Ms. Leithead-Todd: …for my action. That’s all I’m saying, is I really wouldn’t want my hands tied. 6 Mr. Balsis: Are there any other questions for Ms. Leithead-Todd? I understand that you have another meeting to go to. Ms. Leithead-Todd: DHHL. Mr. Balsis: So I want to thank you for coming in and speaking, and answering questions, and discussing this matter. So thank you, and you’re excused and we’re going to continue on. Ms. Leithead-Todd: Thank you. It may be a good time to look at Code amendments. Mr. Balsis: Touché. Thank you again. Ms. Leithead-Todd: Thank you. Mr. Balsis recognized Ku Kahakalau, new member to the Board of Ethics. 2. STATEMENTS FROM THE PUBLIC There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF FEBRUARY 12, 2014 Motion and vote: Mr. Balsis moved to approve the minutes. Mr. Henricks seconded the motion, and all members voted aye. 4. COMMUNICATIONS a. Correspondence to the Board dated March 10, 2014 from Duane Kanuha, Planning Director, requesting that the Board expedite their findings regarding the representation of Petition by a former County employee before the Windward Planning Commission. Mr. Balsis inquired if there was a petition on the agenda regarding the correspondence. Ms. Schoen explained a petition regarding the correspondence was not on the agenda, and that a petition was not received from Jamae Kawauchi, the former County employee referenced in the correspondence. Mr. Balsis requested that Ms. Schoen prepare a letter to Mr. Kanuha informing him that the Board did not receive a petition from Jamae Kawauchi. b. Correspondence to the Board dated March 12, 2014 from the Cost of Government Commission requesting feedback. Mr. Balsis noted that the deadline to respond had passed. Ms. Schoen informed the Board that the Cost of Government Commission would consider the Board’s feedback when it is presented to them. Mr. Balsis requested that the Board Members submit their comments to Ms. 7 Schoen within two weeks so a response could be prepared and reviewed at the Board’s next meeting. 5. NEW BUSINESS a. Petition No. 2013-10. Initial review of petition alleging that a County Officer or Employee is in violation of Section 2-83 of the Code of Ethics because he “has not treated us in a courteous, fair and impartial manner” and “used a County vehicle for other than a public activity or purpose.” Mr. Balsis: The Petitioner is Chris and Annette Pickens. Would you come forward please? Mr. Northrop: Sure. Ms. Schoen: Mr. Chair, the petitioners did contact us and wanted to appear by phone and had asked that we, if they weren’t going to come today that we contact them by phone because they live in Kona. And I could not say that it was permissible or not, I just said that I would relay that information to the Board. Mr. Balsis: We have the Petitioner Chris Pickens? Mr. Northrop: I’m Robert Northrop. Ms. Schoen: He’s the Respondent. Mr. Northrop: Construction inspector with the Engineering Division of Public Works. Mr. Balsis: Okay. I was looking for Chris Pickens. Mr. Northrop: I don’t see him here. Ms. Schoen: Renee is telling me that someone was supposed to provide us a phone and we don’t have it right now, so if the Board could maybe move on to the next item and I will go check on that. Mr. Balsis: Okay. What we’re going to do is put this later on the agenda while we get a phone so that we can get Mr. and Mrs. Pickens on with us here today. So… Mr. Northrop: That’s fine. Thank you very much. Mr. Balsis: I’ll excuse you for a few minutes, please hang out. b. Petition No. 2014-02. Request for informal advisory opinion from the Deputy County Clerk, to determine whether there would be any conflict or 8 impediments to her running for County Council while continuing to serve as Deputy County Clerk. Mr. Balsis: Maile David, please step forward, have a seat. I’m going to give you the floor for a few minutes to make your request. Ms. David: Thank you. Good morning and Aloha Board Members. My name is Maile David. I am the Deputy County Clerk for the County of Hawai‘i. Mahalo for this opportunity. I have with me this morning, County Clerk Stewart Maeda and I also have with us our Elections Administrator Patricia Nakamoto available to answer any questions. I believe my letter explains the potential predicament that we are facing. I decided to approach the Board and get an opinion ahead of time whether there would be any perceived conflict in my running for office and maintaining my position and duties as Deputy County Clerk. We did discuss this matter with Corporation Counsel here, Lincoln Ashida. We had discussions also with the State Office of Elections and basically were advised that Mr. Maeda was given the, delegated the authority to make any concessions or shielding methods to prevent any such appearance of perceived conflict in what I would like to do. And I believe my letter is self explanatory. Mr. Maeda is here to describe the shielding methods that we have implemented and we’ve already begun to implement some of those methods by pending this hearing. We have, I have stepped away from my duty as clerking the West Hawai‘i Civic Center Council meetings and Mr. Maeda has graciously accepted that duty pending the outcome of this meeting, or this Board’s decision. Mr. Balsis: Mr. Maeda, if I may ask, could you please specify the shields that you have raised. Mr. Maeda: Good morning. My name is Steward Maeda, County Clerk. Basically on election day I would be at the control center of our elections and in case I was not able to be there, the Deputy County Clerk would then take my place. Instead we’re using one of our employees from our Legislative Research Branch to step in, in case I’m not available on that day. Primarily at the control center, the Clerk would be there to address any issues that came up, to assist in anyway, any kind of media inquiries and things of that nature. Mr. Balsis: Does anybody here on the Board have any questions for the petitioner? Mr. Adams: I do. As I take a look at your comprehensive letter with all the attachments, which Code section are we specifically addressing within the Code of Ethics? Ms. David: I read the Code of Ethics sections and I could not find a specific section that addresses my concerns. The reason I’m here basically is the information that I got indirectly that if I intended to run there may be a problem with ethics, so I looked at the Code of Ethics, I could not find a specific rule so I’m here before you to see. Mr. Henricks: You may be able to put down there Section 2-83(b). It says, no officer or employee shall use or attempt to use the officer’s or employee’s official position to secure or grant unwarranted privileges, and so on and so forth. So that’s what you’d be doing if you were 9 in the elective process and running for office you’d be in a position where you could grant yourself special privileges and what have you. Ms. David: And I believe that’s what we’re trying to establish here, how to shield any possible… Mr. Henricks: Do you have any idea of who… Ms. David: Thank you. Mr. Henricks: You guys aren’t going to disqualify me are you? Ms. David: I’m sorry. Mr. Henricks: I was just thinking that your Legislative Specialist that would be taking over for you may be someone that I know. Mr. Maeda: No, that’s not the person we were looking at. Mr. Balsis: Any other questions? At this time I’m going to open up for some discussion here. I do have a comment to make. I did look at the letter and I did look at the Code and I do see that all the shields are there. Technically I can see that you’ve taken appropriate steps with Mr. Maeda taking control of the situation in order to avoid a conflict of interest. However, I think it’s important to point out that you have, what you may have is a technical conflict of interest. The perception in the community may be different and I don’t know if there’s any shields you can put up in terms of community perception and I just say that from a word of advice. You’re asking for advice or thoughts from us, that’s my thought. Mr. Henricks: I think as to your statement on perception I think that by coming forth in front of us, is what you’re trying to do is take care of the fact that if we approve it, it’s on our back, not on your back, so I think that would take care of the perception of the community, okay. Is that the way you see it? Mr. Adams: I’m a little less sanguine about the situation. I do see 2-83b and if we reach, it could fall under us. I’m a little, part of our responsibility here as a Board, and mine as a Board Member, is to take a look and we’re going to talk about this later, and we’ve talked about it already, is take a look at this Code and the interpretation of the Code, not anything that’s outside the Code. If I take a look at what you’ve asked us to look at here in terms of your position now and your desire to run for office while you maintain your position, that, although I can see that there may be conflicts perceived or real as a part of that I still question whether or not this Code actually addresses that for you. It may be addressed in other areas, it’s because it’s not addressed here because these Ethics Codes, at least in my mind, are focused primarily, not completely, but primarily on financial interests, that’s where we see the questions about conflict of interest. I don’t see that necessarily as what you’re concerned about. There are candidacy issues that are covered here as well and so we can go to that level. I guess I would be concerned that there is more than a perception here and that although we can set in place a variety of walls 10 that elections are the lifeblood of our democracy and anything that we do that has potential dispersion on that we have to really be careful about. I’m not sure I have a question for you that will address my concern. I am concerned about this even given the level of efforts that have been moved forward. So if we’re going to agree that this is something that we want to have some type of opinion on, I’m not sure that I can support this. There may be other methods, maybe you have to take a leave of absence or something along those lines, I don’t know. But even given the fact that you have continued to be in office while at the same time running for County Council, I have questions about that. Mr. Henricks: I totally disagree with my colleague there, totally one hundred percent disagree. Number one, the Board is not in a position to take on the business of public perception, it’s not out business. Our business is to see the rules are followed, of the Code of Ethics of what you’re doing, and the way you made your presentation, I agree with your conclusions and I think you’re shielding yourself properly. That’s the only business we have. I don’t see any other business. Mr. Balsis: Glen do you have any comments? Mr. Hisashima: Yeah, one question. Ms. David: Okay. Mr. Hisashima: You’re the Deputy County Clerk in West Hawaii. Ms. David: Yes. Mr. Hisashima: You folks are going to assign somebody there? Will that person have the full authority as the Clerk, if something happens to him? Mr. Maeda: Actually the assignment of the Clerk and the County Clerk it’s not West and East Hawai‘i, no it’s… Mr. Hisashima: I watch it on t.v. that’s why. Mr. Maeda: Well one of the things I think to address Mr. Adams’ concern is, the most visible part of the job is actually clerking the Council and Committee meetings and we’ve asked Ms. David, who was clerking the West Hawai‘i meetings because she is Kona to no longer do that, and so I’ve assumed that responsibility and that’s the most visible form in which you’ll see the Deputy Clerk and the County Clerk. In regards to her day to day work assignments and things that she’s doing, she has never had any involvement with elections. I am primarily working with the Elections Office. Ms. David really has no contact with Elections at all and that’s been from the beginning of our term. She, if the Board is okay with this situation she would continue in her duties as she always has. She is in Hilo twice a week, she’s in Kona the rest of the time, we’ll continue to not have her clerk the West Hawai‘i meetings and, you know, we, in case of my absence, she would take over but we already have someone else that is able to do that. The other person actually has been Deputy Clerk in the past and is willing to assume the 11 responsibilities during the election time if I’m unavailable. So I think we’ve tried to address all of the concerns, the public perception issues or things that we were thinking about as well because we do want to have open, honest, transparent elections and we don’t want to have any kind of negative response from the public in response to the election process this election year. Mr. Balsis: Ku, do you have any comments or questions? Ms. Kahakalau: No, I’m satisfied with what I’ve heard. Mr. Balsis: At this point in time, what is the flavor of the Board? Do we, Counsel, do we give an actual opinion, do we, or if our comments, we have four people saying technically or even completely that Maile is okay in the way that they’ve done things, and we have one person who is very questionable. If that were to be put into an opinion for her to continue with her, what she does, there’s no petition coming against us, or I guess by having a dissenting view, so to speak, the, and by hearing all sides, then Maile may be forewarned that watch out, there may be a petition coming up in the future if somebody has the wrong perception. Ms. Schoen: Your normal procedure when you receive these types of petitions of an officer or employee asking whether particular conduct would violate the Code is, you all would discuss it and would issue an opinion. One either saying the conduct would not violate the Code or the conduct would. And while I’m speaking I want to, Mr. Adams was asking about applicable Code provisions and he mentioned 2-83b, but the Board might also want to consider 2-91.6 which is the Confidential Information Provision. Mr. Balsis: 2-91.6? Ms. Schoen: Yes. Which basically says that an officer or employee shall not disclose information which by law or practice is not available to the public and which the officer or employee acquires in the course of their official duties, or use that information for their personal gain. So that’s something for the Board to chew on. Mr. Balsis: Are there any comments or discussion on that particular issue? Ms. Kahakalau: I would like to ask if Maile, if you think that there would be any confidential information at this point in terms of your duties, or either one of you. Would there be any confidential information in regards to elections or any aspects of elections that Ms. David would know that any other candidate wouldn’t know? Mr. Maeda: No there would be none. I think that she wouldn’t have any information in regards to elections or what’s happening within the Elections Office. Ms. David: And just a side note, thank you. My prior professional career has been30 years as a legal secretary, paralegal. I am well, I respect the confidentiality issue. I was, that is part of a rule that I totally respect. And so I just needed to say that. Thank you. 12 Mr. Henricks: I move that the Board in its advisory opinion find that Ms. David would not be in violation of the Code of Ethics in pursuing office if proper shields are put in place keeping her from any election activities. Ms. Kahakalau: Second. Mr. Balsis: There’s a motion on the floor and it’s been seconded. Is there any discussion? Doug? Mr. Adams: No. I’ve already had my discussion. Mr. Balsis: Okay. Before I call for a vote, I’d just like to make one statement and that is, there is differing opinions, however, I believe you’re going to have a majority which will approve and I think it’s very important that you take the whole thing into perspective. So with that I’m going to call for a vote. All those in favor of the motion say aye. Mr. Balsis, Mr. Henricks, Mr. Hisashima and Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: Opposed. Mr. Adams: Nay. Mr. Balsis: So that would be 4 in favor and 1 opposed. Ms. David: Thank you very much. Ms. Schoen: So Mr. Chair, just for Ms. David’s information, the Board will be drafting an informal advisory opinion for your review for the next hearing. Mr. Balsis: That is correct. Ms. Schoen: And you don’t have to come back. Mr. Balsis: I think that it’s important in that, in the review to mention that there were differing opinions, however, the majority ruled a certain way. Ms. Schoen: Sure. Ms. David: Thank you. Thank you very much. Mr. Balsis moved on to Unfinished Business while the Board waited for a telephone to be provided for the Board’s use with regard to Petition No. 2013-10. 13 6. UNFINISHED BUSINESS a. Petition No. 2014-01. Informal hearing of petition by Michael Drutar and whether the Department of Finance may find a violation of the Code of Ethics and sanction on the basis of that finding. Mr. Balsis: This is a very specific issue that we’re taking a look at and with that in mind, please step forward. I’m going to get out all my old papers here. Ms. Noda. Ms. Noda: Are we waiting for Ms. Schoen to return? Mr. Balsis: I think we’re going to continue. If we need, if there’s a point we need Ms. Schoen, she’s well aware of everything going on. Ms. Noda: I’ll start then. Good morning members of the Board. Diane Noda, Deputy Corporation Counsel representing the County of Hawai‘i, Department of Finance. I had appeared two months ago with Ms. Crawford and members of our Human Resources Department. By way of introduction I’d also like to point out if in case the Board has any questions or would like follow up information, also present with me is Nancy Crawford, Director of the Department of Finance sitting behind me as well as Nicholas Hermes, who is the Deputy Director of our Department of Human Resources, and prior to becoming Deputy Director last year he was in the position of Human Resources Manager but I paraphrase and call it, he was our Labor Specialist, the point person for collective bargaining negotiations and what not. He’s also had work experience with our State of Hawai‘i Department of Human Resources. Anyway, I had provided to the Board, I think you got it in the mail several days ago, a brief, a Memorandum in Opposition to Mr. Drutar’s petition because his position is that the Department of Finance cannot cite to, investigate or make a finding of an ethical violation. Before I quickly summarize what was provided in my Memorandum I do want to point out that I don’t think that Mr. Drutar had indicated that the Department had also cited to another County policy violation also. Mr. Drutar’s petition cites to the Code of Ethics Section 2-79(3) but as I pointed out, this section only points out, it says here are the procedures set forth in this section. He also cites to Section 2-86 of the Code of Ethics which provides for informal advisory opinions by this Board. However, that section specifically says that the employee himself or any other person, such as Ms. Crawford, may petition, file a petition with the Board asking for an advisory opinion. But the word may, makes it discretionary either for Mr. Drutar, any employee or the Department Head. There is no requirement in that section that says the employee, or the Department Head, or any other person shall, is required, is mandated, to come before this Board and request an advisory opinion. And as Ms. Leithead-Todd had pointed out there are myriad or circumstances that come up for our 2,000 plus County employees, ethical questions arise, or potential ethical issues or violations arise daily, weekly. Mr. Drutar also had complained in his petition that this is the only body that is a neutral arbiter to decide whether or not the Department can do it, and not included in my Memorandum though, I did want to point out that there is a specific process that is contracted between the Government-Employer and the unions representing the government employees. It’s specifically spelled out that there is a negotiated bargain for agreed upon process to have an employee who is unhappy or disagrees with any employment decision that they can contest it, and that’s through the collective bargaining agreements for all the various unions. 14 Each collective bargaining agreement specifically spells out the process in which an employee has the right through their exclusive union representative to contest any employment action that they’re dissatisfied with. There’s also a second avenue that an employee could contest an employment decision and that’s through each Department’s internal complaint procedures. Mr. Durtar had complained that the grievance process does not give him a neutral fact finder and that is incorrect, because each step of the agreed upon contract language provides for, to meet with a supervisor, the Department Head, the employer, which is the Mayor or the Mayor’s designee, and if there still is a contested issue about the employment or disciplinary action then it goes to a neutral arbitrator. And so, that final step in the grievance process is Mr. Drutar’s right to receive and seek a neutral decision. As Ms. Leithead-Todd had pointed out the Employer, the Department has the obligation to fulfill the requirements in the Collective Bargaining Agreement to give the employee a fair, thorough investigation and decision. She had cited that if there was a complaint brought to her notice that there’s a potential violation she would assign an investigator and the matter would be investigated. She could choose, the Department Head could choose to suspend the employee during the pendency of the investigation on leave without pay for up to 30 days. If the Department Head decides that it’s prudent and wisest for the employee to remain away from work, from the thirty first day on, it would have to be leave with pay. If there’s a finding of no violation after the investigation is concluded, the Department would have to pay the employee for that with no pay time period. To the benefit and agreed upon for the both the Employer, Department, and the employee that any potential disciplinary investigation be done thoroughly, and fairly, and quickly because if it takes, if it drags on and on, right, it creates a lot of anxiety and uncertainty for the employer and the employee, and that it become punitive to the employee. If the Department has to come before this Board for every single ethical issue, even though the Department is confident and certain that they can make the call on it, it would probably require this Board to convene and consider possibly a larger number of petitions and would have to convene more frequently. On the downside for the Department and the Employer, if we do not process the investigation and meet out the disciplinary action, if there’s any, in a timely manner we potentially subject ourselves to the union bringing up prohibited practice against the County before the State of Hawai‘i Labor Relations Board for, you know, dragging our feet and causing a lot of uncertainty and distress to the employee under investigation. Ms. Leithead-Todd had also given the hypothetical of an employee using the County gasoline and filling their personal vehicles. As she had pointed out there are a lot of situations where there are potential violations of both the Code of Ethics and other criminal laws or State laws or other County policies. But the Department Head has the ability to require thorough and complete investigation and then make a decision based on that. To address Mr. Adams’ concern about, I’m sorry I had left for a few minutes because I had a coughing attack, you had asked, said that you know like for the Court system there are specific, whether or not something comes before the Court they’ll have exclusive jurisdiction, I believe was your statement. Mr. Adams: That they have subject matter jurisdiction. Ms. Noda: Right. The reason is that in State law, Hawaii Revised Statutes, there are specific provisions, the Family Court or the District Court or the Circuit Court shall have exclusive jurisdiction over these specific things right. Family Court for adoptions, juvenile proceedings or divorces and what not, and it specifies in State law that there’s exclusive 15 jurisdiction and thus they have that. For Mr. Henricks’ question to Ms. Leithead-Todd regarding the definition of the Appointing Authority, oh… Mr. Henricks: Don’t worry about it, it’s done. You don’t need to address it we already got it settled. Ms. Noda: …ok, because I had Mr. Hermes bring the information and that it is provided in Hawai‘i Revised Statutes 76-11, which includes the Department Head. So in conclusion, and the last section I did want to point out is Ethics Code Section 2-91 which gives the Appointing Authority power to discipline. As I had cited, that section specifically talks about the Appointing Authority in this case, Nancy Crawford’s authority, that section talks about her authority, which is to discipline, reprimand, put on probation, demote, suspend or discharge an employee found to have violated the ethical standards. There’s nowhere in this section that says, found by the Board of Ethics to have violated the standards. If that was the requirement then this section needs to specify the finding must be solely by the Board of Ethics and that the Appointing Authority does not have the ability to do so. Based on those arguments we request that Mr. Drutar’s petition regarding this one issue be denied. Mr. Balsis: Are there any questions? Mr. Henricks: I don’t have a question, but I think I finally agree with you but not for the same reason. Ms. Noda: I’ll take it. Mr. Adams: 2-91, actually your reading of that, Corporation Counsel reading of that, that’s the first time that actually, if we take 2-91 as a part of the Code, the reading is that there, because this Board does not have disciplinary power that the decisions, the opinions that are provided, then provided back to the Appointing Authority, that’s where that, that’s the first time that I’ve heard where that would be read alone without taking into account the rest of other sections as part of this Code. That’s pretty interesting. As far as, is the Corporation Counsel’s opinion also that the only exclusive jurisdiction, the only time that there’s exclusive jurisdiction is when it’s specifically indicated in statute? Ms. Noda: The jurisdiction for this Board to act is… Mr. Adams: No, in general. It’s a general question. Ms. Noda: I’m sorry. Mr. Adams: So exclusive jurisdiction as a concept, the only time an entity has exclusive jurisdiction is when it is so stated in statute or the powers of that. Is that Corporation Counsel’s opinion? Ms. Noda: So stated by statute… 16 Mr. Adams: Well you just gave me examples of Family Court, District Court, Circuit Court having exclusive jurisdiction based on particular subject matter and it was specifically stated that in statute, those are the examples you gave. Am I then to understand that that’s Corporation Counsel’s understanding or opinion that the only time exclusive jurisdiction exists for an adjudicatory body is when it’s stated such in statute. Ms. Noda: No, not specifically having to be stated by statute state law. It needs to be, it would be clearest and easiest for interpretation for everyone if it’s set forth in whatever entity creates the body. Mr. Adams: Right. Ms. Noda: And so in this case, by County Charter setting forth the requirement for the Board of Ethics as well as the Hawai‘i County Code, that’s the creation mechanism for this Board. MR. Adams: Right. Ms. Noda: And in neither the County Charter nor the County Code is there any specific language that says the Board of Ethics has sole and exclusive jurisdiction to interpret and issue findings on every ethical dilemma that arises within the County. Mr. Balsis: You did, and I recall, you quoted a specific statute which gives Department Heads, they are Appointed Authorities… Ms. Noda: Yes. Hawai‘i Revised Statutes 76-11… Mr. Balsis: 76-11. Ms. Noda: …gives a definition for Appointing Authority as a Department Head or the designee, with the ability to appoint or make changes in the status of the employees. Mr. Balsis: Okay. Ms. Noda: The Mayor is also… Mr. Balsis: You said 76-11? Ms. Noda: Yes. I can produce a copy to the Board later today, if you’d like to. Mr. Henricks: There’s no need Ms. Noda. Mr. Balsis: Is there any other discussion or questions? Mr. Hisashima: Yes. Please bear with me, in your opinion, because you’re an attorney, I’m not. Is the process that was in place legal, or suitable to render a decision? 17 Ms. Noda: In Mr. Drutar’s specific circumstance? Mr. Hisashima: No, in any case similar to this. I don’t want to use people’s names. Is the process alright with you folks that it’s legal, meaning bring a charge, investigate, sanction, to your knowledge, that’s appropriate? Ms. Noda: Yes. Mr. Hisashima: Can I have Mr. Hermes? Ms. Noda: Mr. Hermes. Mr. Hisashima: No you can sit there cause I’m going back to you. Can you please identify yourself and your title. Mr. Hermes: Good morning, Nicholas Hermes, Deputy Director of Human Resources. Mr. Hisashima: I have a problem. This gentleman that filed the petition, what union represents him? Mr. Hermes: Sir, technically he’s no longer an employee. Mr. Hisashima: I understand that. Mr. Hermes: He was represented by the Hawai‘i Government Employee’s Association in Bargaining Unit 3… From the Gallery: I think it was 13. Mr. Hermes: Okay, 13. Mr. Hisashima: Okay. I read both, I got the union book., I read the two. My question to you is, since Ms. Crawford had said that a violation was made, an investigation was done, charges were brought up, all kind of charges, Ms. Leithead-Todd, as what we call it in our world is piling up, pile up all the violations so we can pick one that will sit, after all that was done, sanctions were made. He was given I think, 2 weeks, something like that. Sanction, leave without pay, right? Ms. Noda: I think 10 days reduced to 5. Mr. Hisashima: No, no, no. The only reason I’m bringing this up to you is because it’s out of our jurisdiction now because it now becomes the union’s one. And the last time Ms. Crawford said because of the confidentiality with the union, we cannot discuss it. Sanctions were made, now that becomes grieveable. That is the union process. We do not have jurisdiction on that. True? 18 Mr. Hermes: Yes, I agree. Mr. Hisashima: So we do not have anything to say on this. And the only reason I bring this up is because I’ve done it before. If it goes through sanctions and becomes grieveable, hands off. Mr. Henricks: Yeah, but this is an advisory opinion, we’re not talking about union sanctions. Mr. Hisashima: Right. Well then again, I ask, you’re from HR right? Who writes the policies for the County? Mr. Hermes: What subject matter? Mr. Hisashima: Any matter. Because I heard you folks don’t have policies and procedures. Mr. Hermes: Sir it’s hard to answer. Mr. Hisashima: I asked Ms. Crawford dress code, do you have a policy on dress code. Mr. Hermes: No. Mr. Hisashima: Do you have a policy on how to enforce the ethics code? The employees should know. Mr. Hermes: No. Mr. Hisashima: Then how do you hold the employees accountable? See that’s the problem. I look at it coming from the State. We write up people on violation of policy. We’re going to make sure we review, sanction them, everything. When it comes to the ethical part, that is sent up to the Ethics for review for their opinion and when we give the opinion then you move forward. I’ve never seen anybody sanction, stop and reverse and take away sanctions. That’s the problem I have. Once you find a person guilty of a charge how are you going to reverse that? See what I’m saying, cause you folks said there is no, Ms. Leithead-Todd said if there is no violation or we come with an opinion that there’s no violation then you got to redo the sanction. I’ve never heard of that before in 26 years of my career. That’s all I wanted to bring up. Mr. Balsis: Thank you Glen. Ku, do you have anything you’d like say? Any questions or any comments? Ms. Kahakalau: None. Mr. Balsis: Thank you. Arne, go ahead. 19 Mr. Henricks: Yeah, I have a comment. I think I might tell you why my position has changed and I’d like to note why. We can start with 2-91, that’s what we have to start with so that’s the basic thing, that’s where the County’s involved right? With the so called Appointing Authority, question does she have the ability, as you state here, to make a finding of violation of the Ethics Code. Do 2 people have the ability, the Department Head has the ability and we have the ability, as 2 people. Can we both have the ability to do it, my finding is yes, it has to be that way because that’s the only way it works. I’m thinking from 2-91, and I’ll send you back to section 14-5, alright, 14-5 states very clearly when the, section d, when an issue is brought before us for a violation of the County Ethics Code we must make a finding and we must make it public, alright, we got a clash right there, with employees’ rights and Ethic Code 14-5d. The employee has a right, not only a right, but it’s according to law, everything you do in disciplinary is confidential. It cannot be public, therefore, we have 2 different bodies doing 2 different things. What you are doing is confidential, what we are doing must be opened and published. We can’t have them living together so you must have 2 different authorities interpreting this Code if you’re going to do it under 2-91. Both of us have the authority and that’s the way I would see it at this point because we being public and you being confidential. That’s my comment. Mr. Balsis: Any other comments or question from the Board here? At this time I’d like to entertain, would someone like to make a motion and we can move forward into final discussion and we can make a decision? Mr. Henricks: I’ll make my motion and I’ll move that the advisory opinion to show that both the Board of Ethics and the Department have the ability to make a finding of the Code of Ethics. Mr. Adams: I didn’t understand that. Mr. Henricks: Both the Department and both of us, both the Board and the Department has the authority to make a finding as to a violation of the Code of Ethics because of Section 14- 5b… Mr. Balsis: And sanction on the basis of that? Mr. Henricks: No we cannot sanction, they can sanction, but I think they have the right to make a finding also because 14-5b came into our kuleana we would have to make it public, and they cannot make it public. So therefore, they have the right to make it private, they’re the only ones that can, we can’t. So the protection of the employee is with them, not with us. Mr. Balsis: Do you need clarity on that motion? Mr. Adams: I can second but I would amend that. Mr. Balsis: Okay, you second the motion? Mr. Adams: Sure, I can second it. 20 Mr. Balsis: Is there discussion? Mr. Adams: I would amend that neither of those precludes the other from also doing an Ethics Code investigation. Mr. Henricks: But I would amend it even further as I go along with my colleague here, and says the decision has been made, I don’t think we can come in on it because we are not an appealing body. They have their own appealing body for this type of thing. Mr. Adams: And so from a discussion perspective I would respectfully disagree. I think the employee always has the authority, not the authority, always has the right to come to this body to address what they may feel is a misinterpretation by the Executive Department. Now, if that is, I think what we heard today from the Environmental Management Director was, if there is a, if the sole basis for any disciplinary action being taken by the Department is an Ethics Code violation, and then that is brought to us by the employee because, it’s never going to be brought to us by the Department, but if it’s brought to us by the employee our interpretation is going to, we will then end up like we are here. But we still have the authority to make the interpretation, to hear that. If that is, if there are a variety of things, if there are variety of issues and the Code of Ethics violation is only of which, is only one, then sure, we can hear that, but that doesn’t necessarily, that’s not going to change necessarily any disciplinary action that’s been taken just because we said, hey you were wrong on this. Mr. Henricks: Only problem with that is when the employee brings it before us, it is not in the form of a complaint because they cannot complain against themselves. So what they bring before us is in the form of an advisory opinion, we cannot make an advisory opinion on something that’s already happen. Mr. Adams: Just so we understand advisory opinion based on the Code is not the same thing as an advisory opinion that you know, that you’re going to not make as a judge because you can’t, right. Advisory opinion it has to do with procedure, it doesn’t have to do with opinion. The opinion is still good. Mr. Balsis: Ku. Ms. Kahakalau: I’m a little bit unclear in terms of how this item is agendized. And what I’m reading is that the question is whether the Department of Finance may find a violation of the Code of Ethics and sanction on the basis of that finding. And I think what we’ve heard both this morning and now, is that the Department clearly has that right to make that call and find the violation of the Code of Ethics and sanction on the basis of that finding. And I would feel more comfortable to vote on that and say that that’s the part, that’s the question that was put to us and that’s the answer that we would give based on what we heard this morning is this Department of Finance was within their right to look at the Code of Ethics, find the violation, and sanction based on that. If a person wants to come and ask us for our opinion as well, that’s perfectly fine, but I don’t know that that’s the issue the way it’s agendized here so I’m just a little unclear if I could get some kind of clarification that would be great. 21 Mr. Balsis: That is true and I think at this time we have a motion on the floor that was seconded and we have an amendment that was proposed. That amendment was not seconded I believe so I will ask at this time is there a second to the proposed amendment. Mr. Adams: Again, the amendment was nothing precludes the issue from being heard by the other body if you will, Department or this Board. Mr. Balsis: Okay, is there a second to that motion? Hearing no second, the amendment is put aside, so now we have the motion on the floor at this point in time for discussion, and that is the motion that Mr. Henricks had mentioned that they have the Appointing Authority to do it. Ms. Kahakalau: Can we hear that motion again please? Mr. Balsis: I’m going to have to ask over here. Mr. Henricks: I’ll tell you what I’m going to do. I’ll withdraw my motion and let you make the motion based on the document that you’re reading and narrow it that far down. Ms. Kahakalau: It’s my first time, you know that. Mr. Henricks: If you want to clarify that, when I made my motion, I said both parties, if you want to say one party, that would be proper. Mr. Adams: Since it was seconded I would also have to agree to withdraw, I do. Mr. Henricks: So you go ahead and make it. Ms. Kahakalau: So I make a motion this body confirms that the Department of Finance may find a violation of the Code of Ethics and sanction on the basis of that finding. Mr. Henricks: And I second that. Mr. Balsis: There is a new motion on the floor and that is that the Head of the Department may find a violation of the Code of Ethics and sanction on the basis of that finding. It’s been seconded and in terms of discussion I do have one thing to say. I do agree with Doug and that, well, if there is a disagreement on that particular finding of the, by the employee, he needs to be very specific as to why he disagrees with it and he can bring that to the Board, that’s understood. That was discussed even in a previous testimony by Ms. Leithead-Todd. And the issues of procedure, I think were discussed not only today but previously by all of us here, and that is we have no jurisdiction over the overall Human Resource issue and that’s why we narrowed it down to this particular issue. So those are my discussions. I am completely in support of it, but I wanted to bring these ideas out publically in discussion to try to pointedly clarify differing opinions and how they actually all agree. Any further discussion? 22 Mr. Hisashima: Yes. Simple, if you folks have a policy or procedure in place, yes you folks can, why is it a rush to determine guilt on ethics? Send it to us, we look at it, we give you an informal opinion, if it did or did not. Then you folks can make sanctions, but it goes back to the Appointing Authority. We will not sanction, it goes back to you folks. Once there’s sanctions, I’m going to call it in a general investigation, it’s a grieveable item, and it’s not with us anymore because of the confidentiality. Right? Mr. Balsis: I think one of the things you’re mentioning here is that the need, perhaps for the County to put in more personnel policies and not rely specifically on the Code. And if they need to bring the policy, and say hey, you know we’d like to have an advisory, does this policy violate the Code as you implemented that only makes their life easier, as management in dealing with their employees. I know I find that in my private enterprise that I’m trying to run, and the more and more litigious society, I’m doing this little policy, and that little policy, because everybody wants it in black and white, you know and that’s the way society is falling, whether we like it or not. So, I think it’s a word of advice coming from Glen over here, you know. Get on the bandwagon, get more policies in there and make it easier for Department Heads and other people in management of the County to do their jobs. With that anymore discussion? Mr. Adams: Yeah, one more comment I would make is that, voting yes on this particular, as I understand, and wrap this up, voting yes on this, essentially it means that the Board is a body that interprets the Code of Ethics for those that want to bring, or feel like they need to bring something up, there is no, we have no, we’re there if somebody wants to come. There, that’s essentially what we are and that’s… Mr. Balsis: Yes. Mr. Adams: That’s what a yes vote means here. Mr. Balsis: Call for a vote. All those in favor say aye. Mr. Balsis, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: All those opposed to this motion, say nay. Mr. Adams: Nay. Mr. Balsis: The vote is 4 to 1 I believe. Ms. Schoen: Mr. Chair, before we conclude this matter, I was remiss in not putting this on the record but, Ms. Kahakalau was not present at the last hearing, however, she was provided with all the information, the minutes and everything, so if she could just state on the record that she has reviewed everything and therefore, able to participate today in the vote. 23 Ms. Kahakalau: I was able to participate on this particular agenda item because I met previously with Corporation Counsel, was brief, and provided all the necessary materials that I’ve reviewed prior to this. Mr. Balsis: So noted. Ms. Schoen: Thank you. Mr. Balsis called for a recess to secure a telephone for Petition No. 2013-10. The Board was in recess at 11:30 a.m. Mr. Balsis called the meeting back to order at 11:41 a.m. The Board returned to New Business, Petition No. 2013-10 after securing a telephone for Petitioners to participate in the initial review of their Petition. Mr. Balsis: We have Mr. Pickens on the phone. Mr. Pickens: Yes, I’m here. Mr. Balsis: That’s Pickens, is that correct? Mr. Pickens: Yes, that’s correct. Mr. Balsis: Okay, can everybody here that needs to hear the phone? Everybody says yes on our side. Mr. Pickens you filed a Petition, specifically against Bob Northrop, is that correct? Mr. Pickens: That’s correct. Mr. Balsis: Please take a moment and, without having to repeat everything in your petition, please synopsis it for us. Mr. Pickens: Well, on the day he came up, we’re the house down below the Thompsons where he went to go visit and the sound travels very well on that upslope and when he arrived I saw him drive by in the company vehicle, it says for public use only, something to that effect. And I recognized him and he drove up there, parked and then he got out and I could hear their whole conversation with the Thompsons. And he was talking about how the County is going to put a lien against our home for the deeds that we have done and that he was telling the Thompsons that they should get together with other neighbors in the area and form a coalition against us, because, and his words were that we did not have the aloha. And I was very, very surprised that a Public Works employee would be trying to get other neighbors to file claims against us, and doing it while he’s on company time. 24 Mr. Balsis: Okay. Does Mr. Northrop live in your area or was he just visiting the area? Mr. Pickens: He was visiting the area. He does not live in the area. Mr. Balsis: Okay. Mr. Pickens: He was on company time during the middle of the week, during the day time, I don’t remember exactly what time it was. Mr. Balsis: Okay, Mr. Pickens at this time, I’m going to ask the rest of the Board here if anybody has any questions for you. Mr. Pickens: Okay. Mr. Balsis: Adams, Arnie, Glen, Ku? I don’t either. At this point in time I’m going to ask, Bob Northrop is here and I’m going to ask what comments you have to make regarding this petition about you. Mr. Northrop: I was on company time. I had company business there. They were still in violation of filling in a FEMA Zone streambed and they hadn’t taken any action. I was aware of a fine was attempted to be levied against them for their violation as of the 3rd of December 2012 they were instructed to either before that time, or by that time, to have removed their excess material out of the streambed or be subjected to $500 a day fine. It was approximately a week or so after that, that I had, following through on my duties, gone into the neighborhood to see if they had done any action. They weren’t required to have a grading permit to remove all that material out of the stream, it was just a necessity for us to follow through on our FEMA requirements, Federal requirements to keep that stream from being encumbered. I don’t know what the rules are on eavesdropping, but if you are going to eavesdrop you need to listen better. In regards to the conversation that I was having with the Thompsons, they had been very leery to give us any information in regards to their neighbor because they felt threatened by the neighbor. There was testimony from other neighbors in the neighborhood regarding their new neighbors, Pickens Mejia, and it was feeling throughout the neighborhood that there was going to be trouble with these people. The Thompsons asked me pointedly, what the situation was if Pickens Mejia never removed that material, and the subject of being able to put a lien on their property was a device that I’m aware of that Corporation Counsel has the authority to do if we have to bring in our own equipment via the Highways Division and physically remove that material. It’s something that we don’t do or want to do but because of the blocking of the flood zone, it still needs to be cleared. Mr. Balsis: Okay. At this time I want to thank you Mr. Northrop. And Mr. Pickens I’m going to ask if you have any comments and first of all did you hear everything said clearly, and do you have any comments? Mr. Pickens: Yes, I do have a comment, and I believe I’ve heard everything clearly and I believe that the matter has not been answered to the fact that Bob Northrop was up there talking 25 to the Thompsons to try to get them to form a coalition with other neighbors to go against us. He hasn’t addressed why he was up there trying to form this group to go against us when this was a matter between the Pickens and the County. Mr. Balsis: Okay. At this time, Mr. Northrop, I’ll ask were you there for the purpose of rallying people? Mr. Northrop: I was not. Mr. Balsis: Okay. Mr. Henricks: What was your conversation about with Mr. Thompson? Mr. Pickens: Why did he make those comments then? Mr. Balsis: We’re asking him a question here, please listen Mr. Pickens. Mr. Northrop: They had concerns about the flood zone being blocked and their property being affected. Mr. Henricks: Did they call you up there, the Thompsons, did they call you up there? Mr. Northrop: No sir. Mr. Henricks: You went up there on your own to talk to them? Mr. Northrop: No sir. I went up there to check the flood stream, the floodplain, maintenance by these folks that had filled in. Mr. Henricks: What caused you to contact Mr. Thompson then? Mr. Northrop: I stopped in the middle of the cul-de-sac because their dog had gotten in my way and I was invited in by Mrs. Thompson for a cup of coffee. I hadn’t had my morning break. Mr. Henricks: Did they know you before hand? Mr. Northrop: I’ve known them for years. Mr. Henricks: So you know them? Mr. Northrop: Yeah, I had issues when the subdivision was first built. They were one of the first houses in there and it was a matter of making sure that they were protecting County property, the stream parcel. Mr. Henricks: Did you discuss Mr. Pickens’ business with the Thompsons? 26 Mr. Northrop: They asked me pointedly about Mr. Pickens’ business. Mr. Henricks: And you discussed it with them then? Mr. Northrop: That was part of the topic of the conversation. Mr. Henricks: With the Thompsons? Mr. Northrop: That’s correct sir. Mr. Henricks: And you mentioned the fact that the County could put a lien on their property? Mr. Northrop: That’s correct sir because they had concerns. Mr. Henricks: And what business of them, of the Thompsons whether the County can put a lien on their property? Mr. Northrop: I can appreciate your argument. Mr. Henricks: What business of the Thompsons would it be of the County having the possibility of putting a lien against Mr. Pickens, what business is it of theirs. Is it any business of theirs? Mr. Northrop: General information. Mr. Henricks: It’s not general information. You wouldn’t walk down the street and tell me about it. Mr. Northrop: If you asked. I’m not supposed to respond to a question sir? Mr. Henricks: Not about somebody else’s business. Mr. Northrop: It was public knowledge that there was already a problem in that stream. Mr. Adams: But it wasn’t necessarily public knowledge about the potential direction that the County would go in because there had been no public decision yet to execute a lien correct? Mr. Northrop: That’s correct. Mr. Henricks: In fact, you had no business discussing anything about the Pickens with the Thompsons, is that correct? Mr. Northrop: Excuse me sir. 27 Mr. Henricks: You had no business at all discuss their business with the Thompsons. Mr. Balsis: What Mr. Henricks is saying is when you were speaking with the Thompsons, he’s trying to confirm that you had no business speaking about the Pickens’ situation with the Thompsons because you’re… Mr. Northrop: Even if they pointedly asked me questions? Mr. Balsis: Yes, and I think the issues that… Mr. Henricks: I wouldn’t like you talking to somebody else about me if I were under investigation, I’m sure you understand that. Do you understand what I’m saying? If it were you being investigated would you want someone talking about you? Mr. Adams: We may be getting into a mode of inquiry here where Mr. Northrop might decide that he wants to have counsel or other folks. Mr. Henricks: Should we move to have a hearing? Ms. Schoen: Well, the procedure would be for the Board to either dismiss the Petition, say that it has enough information to move forward for an informal hearing or for a formal hearing. So those are your options right now today. This is an initial review of the petition. Mr. Balsis: As Chair, I think we have do have enough information here to move into an informal hearing. That means that Mr. Pickens and possibly Annette, his wife, would be present at that time and that would be at next month’s meeting. We can hear everything, and Mr. Northrop should be here and you can bring your supervisor or any other person available that you would like to bring with you. And I move as Vice Chair, running the meeting, that we move to into an informal hearing at the next meeting. Is there a second? Mr. Henricks: I second that motion. Mr. Balsis: The motion’s been seconded. Is there any discussion on this motion? Okay. So at the next meeting which will be in May, there will be an informal hearing to discuss this Petition and come to an answer. Call for a vote, I call for a vote. I’m sorry, I’ll call for a vote. My apologies, I’m just moving along here. I saw everybody nodding their heads. I call for a vote. All those in favor? Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: So at next meeting we will have an informal hearing? Mr. Northrop: May I make a question of Mr. Pickens? Mr. Henricks: Is he still there? 28 Mr. Balsis: Mr. Pickens are you still here? Mr. Pickens: Yes I am. Mr. Balsis: Okay, go ahead. Mr. Northrop: When were you planning on clearing up that streambed? Mr. Balsis: That’s a… Mr. Northrop: See, there you go. Ms. Schoen: Just for informational purposes, since all the parties are here. There is a Notice of Violation and Order attached to the petition as well as an Investigation and Report Form. So, has the Notice of Violation and Order been dealt with within the Department? Mr. Northrop: Repeatedly. Ms. Schoen: Okay and then the investigation, it appears as though an investigation was conducted, has that been completed? Mr. Northrop: That has. Mr. Balsis: So the issue here is not whether or not Mr. Pickens is in violation of any ordinances. The issue is the conduct of… Mr. Northrop: My ethics. Mr. Balsis: Yes, that would be under Section 2-83(a)(3), so we’re looking under fair treatment. Mr. Henricks: It says fair, impartial and courteous treatment. That’s what it says. Mr. Balsis: So that’s what we’re looking at here. Those issues are County permitting, flood issues, FEMA and all of that stuff. Ms. Schoen: So we will provide a letter to the parties informing them of the date and time of the next hearing. Mr. Balsis: Yes. Thank you. I’m going to go ahead and end this call Mr. Pickens. Mr. Pickens: Yes, okay. Mr. Balsis: We should see you here next month. It would be terrific if you’re here and you’ll be receiving a letter notifying you of the exact time, place and all that. 29 Mr. Pickens: Okay, thank you very much, I appreciate that. Mr. Northrop: I appreciate the argument. Mr. Henricks: Just don’t let it happen again. Mr. Northrop: Well that’s for sure. You really have to appreciate the constant learning curve. What I’ve told my employer… Ms. Schoen: I would ask that you not speak to the Board because the other parties are not here. Mr. Balsis: And they’re off the phone. Mr. Northrop: No this is a complete aside. Mr. Balsis: No. Mr. Adams: Unfortunately… Mr. Northrop: I do my job. Excuse me, excuse me, to do my job… Mr. Adams: Actually Mr. Northrop we can’t do this. We can’t, we’re in session, we can’t do this. We can have this conversation at the next meeting. Mr. Northrop: Or privately if I see you around. Mr. Adams: We won’t be able to do it then either according to our rules. Mr. Northrop: Golly, I think we just need to have a at least a 2 year AS Degree in you know in paralegal to be a Construction Inspector, I would say. Thank you. Mr. Balsis: Thank you Mr. Northrop. At this time, we completed a lot of the Agenda on page 1, and is there any motions to go into Executive Session? Well, I’ll make the motion, we’ll go into Executive Session for the purpose of reviewing the executive session minutes of February 12, to review Confidential Financial Forms, if necessary, to consult with our Corporation Counsel. Mr. Henricks: I second the motion. Mr. Balsis: All those in favor. Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. The Board left regular session at 12:00 p.m. 30 * * * * * * * * * * The Board returned to regular session at 12:31 p.m. 7. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the Executive Session minutes of February 12, 2014. Motion and vote: Mr. Balsis moved to approve the minutes. Mr. Hisashima 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 stated that they reviewed the financial disclosures listed on the agenda (118 total) and that numbers 30, 34, 40, 51, 67 and 70 were deemed incomplete and would be returned for completion. Mr. Balsis moved to accept the financial disclosures reviewed in executive session with the exception of numbers 30, 34, 40, 51, 67 and 70. All members voted aye. Mr. Balsis noted that he did not make a specific motion regarding the financial disclosures because the Board had reviewed them in executive session and it was a voice vote of the Board’s action. 8. ANNOUNCEMENTS Mr. Balsis announced the Board’s next meeting on May 14, 2014 at 10:00 a.m. in Room 1501 at the Hawai‘i County Building, or at another location if necessary. 9. ADJOURNMENT Mr. Balsis adjourned the meeting at 12:34 p.m. Respectfully submitted: Renee K. Lawrence, Secretary 31