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HomeMy WebLinkAbout2014-05-14 Board of Ethics Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, May 14, 2014 10:00 a.m. to 10:37 a.m. Hawai‘i County Building 25 Aupuni Street, Room 1501 Hilo, Hawai‘i 96720 Members and Staff Present: Bernard Balsis, Chair Ku Kahakalau, 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 ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF APRIL 9, 2014 Ms. Schoen requested that page numbers be included in the minutes. Motion and vote: Mr. Adams moved to approve the minutes with the revisions requested by Ms. Schoen. Mr. Hisashima seconded the motion, and all members voted aye. 4. COMMUNICATION a. Correspondence to the Board dated May 2, 2014 from Duane Kanuha, Planning Director, requesting an informal opinion from the Board as to whether legal representation of Petitioner by a former County employee in a proceeding before the Windward Planning Commission would not be violative of Section 2-91.2 of the Hawai‘i County Code. Mr. Balsis: I’ve reviewed the letter and I’ve reviewed the request. I think that it would be appropriate that we do have an informal hearing at our next meeting to discuss. At that time, we can ask Duane to be here as well as the other person being the attorney representing someone and with that in mind, if that’s okay with the Board, I move that we have an informal hearing at the next meeting. 1 Mr. Henricks: Only problem I have with that is, it’s not a problem with what you’re saying, the problem is that they keep telling us they want us to facilitate this thing and as far as I’m concerned, we’ve passed it on for two months now, and their date was April 1 and we’re looking at June now. I don’t know if we’d have to have a hearing, or just go ahead and make an opinion, or what. Mr. Adams: You know judge, it’s due process in order to give the lawyer her day before the Board. Ms. Schoen: Actually if I could Mr. Chair. The reason that this matter was styled as a “communication” is because we received the letter, even though it’s dated May 2, on May 5. According to your rules, once an officer or employee receives a copy of a request or a petition, then they have 20 days after receipt to respond in writing, and so I just styled it as a communication with the expectation that it would then be agendized as an initial review or an informal hearing and in the meantime we could give her the requisite time period in which to respond. Mr. Henricks: To me, it just felt like we weren’t facilitating anything. Mr. Adams: As I look at this, I have to say, actually she was the one that initially said she was going to send it to us and didn’t. We could’ve handled it this month if she had actually sent us the letter. Mr. Henricks: It’s really not a big issue so that’s why I’m not making a big issue out of this. It’s not a big issue. Mr. Adams: Second. Unless somebody already did. Mr. Balsis: No. That’s a second to the motion that we have an informal hearing so that we can give an informal opinion at our next meeting that will be in June. Is there any further discussion on this motion? We’ve had some discussion. Hearing no further discussion, all those in favor of the motion to have an informal hearing in response to the correspondence say aye. Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: Hearing no opposed, the motion is passed. So we’ll ask that the appropriate parties be notified. Ms. Schoen: We will send out the letter to the Respondent and give them a time, date and place, to appear. Mr. Balsis: Excellent. Ms. Schoen: And then agendize this as an informal hearing for next time. 2 5. NEW BUSINESS There was no new business. 6. UNFINISHED BUSINESS a. Petition No. 2014-02: Review of draft informal advisory opinion as requested by Maile David, Deputy County Clerk, regarding whether there would be any conflict or impediments to her running for County Council while continuing to serve as Deputy County Clerk. Ms. Schoen: As the Board’s reviewing these, make any additions or corrections necessary. I am not emotionally attached to these so please make whatever corrections you feel necessary. Mr. Henricks: Are you taking input now? Mr. Balsis: Yes. Mr. Henricks: Can I make a statement on this then? Mr. Balsis: Yes. Mr. Henricks: Alright. First of all I’d like to apologize to my esteemed colleague Mr. Adams that I am not 100% opposed to your position only 50% opposed to your position at this point, alright. Mr. Adams: Sure thing. Mr. Henricks: And the reason I say that is I looked at the reaction to what we had done last month and that isn’t near what we had done, did not reflect my thinking on this. I want to give you my thinking on this. When Ms. David brought this Petition before this Board she created two questions, not one question, two questions. The first question is, does her actions in any way violate the County Ethics Code, and our answer is no, and we are right. But what about the second question. The second question is the one Mr. Adams is concerned about. The second question being, and this is the way I wrote it down, does her position in anyway compromise the integrity of the electoral process. Very good question. The only way we can act on it is, it’s not in our kuleana to make that decision whether it’s compromised or not. So what happens is, that does not, that’s not a violation of the Ethics Code but it may be somewhere else. So I got to thinking about it, and I thought that okay, our opinion is an advisory opinion. We can go ahead and say you’re not violating the County Ethics Code, but, as part of our advisory opinion I recommend that we send her, tell her, include a referral to the State Elections Commission for her to take that issue up with them as part of our advice. Now, I think in some manner that would answer Mr. Adams’ qualms about what had 3 occurred because that is their kuleana. They make a decision, they’re the ones that do the unfair campaign practices thing. Let them make the decision on that, I’m not comfortable with it at all in our pocket. We do not have it, we do not rule on it, but we’re alright under the Ethics Code, all of us are, but we’re not alright about the other half. And I’m not saying whether it does or not Mr. Adams, I’m saying it’s not our qualm. So therefore, I’m asking for us to make a motion to amend our opinion to include a referral to the State Elections Commission. It’s just a recommendation now, just a recommendation. Mr. Balsis: Yeah. Do you have a comment Mr. Adams? Mr. Adams: I do. Thank you very much. I’ve thought about this as well and in terms of looking at the minutes and recalling our conversation and dialogue on this. I think that’s, judge that’s a really nice delineation, and I would be willing to support this. I think my primary concern was the perception and because ethics is a perception business it becomes important in the sense that we are the Board of Ethics for the County. My ability to lay a finger on the specific area of the Code, now you’re right, I don’t think I could do that. And yes, we’re supposed to be able to do that and so I would be in support of such a recommendation. Mr. Henricks: You noticed I said esteemed when I addressed you in my comment. Mr. Adams: I’m not sure what that means but I’m sure it’s okay. Mr. Balsis: Shall I consider that a motion? Mr. Henricks: Should we go ahead and make a motion? Mr. Balsis: Please do. Mr. Henricks: Anybody else want to make the motion? Mr. Adams: If you make it, I’ll second it. Mr. Henricks: Okay. I move that along with our advisory opinion that it does not violate the County Ethics Code that we include a referral to the State Election Commission or whatever body hears issues of unfair campaign violations, so they can determine whether the integrity of the election is compromised by her actions. Is that fair? Mr. Adams: Right and just so I understand the motion, the recommendation that would be included in our opinion would indicate that this is a recommendation to Ms. David. Mr. Henricks: Right. It’s an advisory recommendation only. 4 Mr. Adams: Okay. Second. Mr. Henricks: Can you clean that up for me Ms. Schoen? Ms. Schoen: Yes. So you had a motion and a second, so what are we doing? Mr. Balsis: The motion is to go ahead and approve the Informal Advisory Opinion with the addition of a recommendation to Maile David for her to go to the State Elections Commission to get their opinion on whether or not the election process will be compromised. Mr. Henricks: Right, exactly. Ms. Schoen: Okay, can I say that you’re going to include a recommendation that Ms. David seek an opinion from any State agency that may have jurisdiction over campaign or election matters, just because there’s campaign spending, there’s State Election… Mr. Adams: That’s what the judge meant. Mr. Henricks: Yeah. Mr. Balsis: Yes. Ms. Schoen: Okay. I can do that. Mr. Balsis: So that motion had been made, seconded, clarified, is there any further discussion on this? All those in favor of this motion say aye. Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: It is unanimous. Ms. Schoen: Okay so my question now is, would you like me to make that change and then have the Chair sign the opinion or do you want to review it at the next hearing. Mr. Henricks: Let’s just facilitate this one. Let her go ahead and have him sign, so that they can… Mr. Balsis: Yes. Mr. Henricks: …she’s going to make the addition, she’s going to make it a month earlier. Ms. Schoen: Okay, alright. Mr. Balsis: So you’ll give me a call, I’ll come over and take care of it. 5 Ms. Schoen: Yeah, okay. So I’m going to add a sentence - what I just stated. b. Petition No. 2014-01: Review of draft informal advisory opinion regarding the Petition by Michael Drutar on whether the Department of Finance may find a violation of the Code of Ethics and sanction on the basis thereof. Ms. Schoen: Mr. Chair, if I may. You know this draft was provided to the Board this morning. Ms. Noda who represented the Department of Finance had asked for a copy of the draft that the Board would be considering. That wasn’t provided to her and in large part because your rules say, all documents are to be held confidential until it’s reviewed by the Board at an open meeting. So I was uncomfortable yet she does have the right to see what the Board is going to consider and then, you know, maybe she has objections, additions, corrections that she might want to place on the record. Mr. Balsis: May I make this suggestion that we go through a review process here. I believe time is not of the essence in the approval of this opinion. Mr. Henricks: Not at all. Mr. Balsis: So if we review it now we make any comments that we have on this and then you can refer that and you can finalize this at the next meeting. Mr. Henricks: That would be par for the course you see because if she did want to make revisions to it, we would have to review it. If Ms. Noda wanted to make revisions we would have to come back and review the revision anyway. Mr. Balsis: We’ll review that at the next meeting. Mr. Adams: We’re going to have to. Mr. Henricks: Yeah, I think so, therefore might as well just pass it on. Ms. Schoen: In the meantime though, you know, if you all have any corrections, or additions you want to make… Mr. Balsis: Yeah, if we have any comments at this time. Mr. Henricks: So in other words, just take it home and look at it and at the next meeting we’ll make the final review with any input from Ms. Noda. Is that alright? Ms. Schoen: Okay. What I will do is provide this draft that I’ve provided to the Board to both Petitioner and Respondent and ask them to comment within a certain time period. 6 Mr. Henricks: And we’ll bring it back. We’ll take it home and bring it back with our corrections if we want to. Mr. Balsis: So to clarify that, we will postpone the review of the draft informal advisory opinion. We will be able to take this home and take a look at it as well as Ms. Noda will have the opportunity to make comments any comments and they’ll all be reviewed at the next meeting. Mr. Adams: Is there a motion required for that since this is on the agenda? That we’re moving this and our next review will include any additions or matters of record that’s been provided by Petitioner and/or Respondent. Mr. Henricks: I second that. Mr. Balsis: Is there any further discussion? Hearing no further discussion, I call for a vote on this motion to postpone the review of draft informal advisory opinion of Petition No. 2014-01. All those in favor. Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. c. Petition No. 2013-10: Informal hearing of petition by Chris and Annette Pickens alleging that County employee Robert Northrop 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: It is my understanding that earlier in the week we learned that Annette Pickens was not going to be available and so we went through the process of saying, if both Chris and Annette cannot be here, and they both wanted to be here, and we also informed Robert Northrop that both Petitioners would not be available and so this particular informal hearing needs to be postponed until the next meeting. The Chair so moves that we move the informal hearing to the next meeting. Is there a second to that motion? Mr. Hisashima: Second. Mr. Balsis: Is there any discussion on that? Hearing no discussion on this matter, I call for a vote on the postponement of the informal hearing on Petition No. 2013-10. All those in favor. Mr. Balsis, Mr. Adams, Mr. Henricks, Mr. Hisashima, Ms. Kahakalau (simultaneously): Aye. Motion and vote: Mr. Balsis moved to go into Executive Session for the purpose of reviewing the executive session minutes of April 9, 2014 and to review Confidential Financial Forms, and consult with legal counsel as necessary. Ms. Kahakalau seconded the motion, and all members voted aye. 7 The Board left regular session at 10:19 a.m. * * * * * * * * The Board returned to regular session at 10:27 a.m. 7. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of April 9, 2014. Motion and vote: Mr. Balsis moved to approve the minutes. 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 were reviewed. Mr. Balsis noted that 9 Confidential Financial Disclosures were reviewed, two disclosures, numbers 3 and 6, were incomplete. Motion and vote: Mr. Balsis moved to approve the 7 remaining Confidential Financial Disclosures. Mr. Hisashima seconded the motion, and all members voted aye. 8. ELECTION OF OFFICERS (CHAIR AND VICE CHAIR) Mr. Hisashima nominated Mr. Balsis as Chair and Ms. Kahakalau as Vice Chair. Mr. Adams seconded the motion. The motion was passed unanimously. 9. ANNOUNCEMENTS Mr. Balsis announced the Board’s next meeting on June 25, 2014 at 10:00 a.m. at a location to be announced at a later date. 10. ADJOURNMENT Mr. Balsis adjourned the meeting at 10:37 a.m. Respectfully submitted: Renee K. Lawrence, Secretary 8