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HomeMy WebLinkAbout2014-07-16 Board of Ethics Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, July 16, 2014 10:03 a.m. to 11:00 a.m. Hawai‘i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai‘i 96720 VIDEO CONFERENCE West Hawai‘i Civic Center 74-5044 Ane Keohokalole Highway, Building A, Conference Room A Kailua-Kona, Hawai‘i 96740 Members and Staff Present: Bernard Balsis, Chair Ku Kahakalau, Vice Chair Arne Henricks, 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 10:03 a.m. Mr. Balsis announced that Mr. Hisashima resigned from the Board of Ethics effective June 30, 2014. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF JUNE 25, 2014 Motion and vote: Mr. Adams moved to approve the minutes. Mr. Henricks seconded the motion, and all members voted aye. 4. NEW BUSINESS a. Review of Gift Disclosure Statements received from the following County officers or employees: (1) Karen Eoff, Council Member (2) Dru Kanuha, Council Member Mr. Balsis accepted and filed the two Gift Disclosure Statements. b. Petition No. 2014-07: Initial review of Petition alleging that a candidate for County Council is in violation of Section 2-91.6 of the Code of Ethics for “disclosing confidential information gained during the course of employment…” Mr. Balsis: Is the Petitioner available? Ms. Schoen: Mr. Chair, it’s my understanding that he provided us with a telephone contact number should the Board have questions. He did not indicate to the Board’s secretary that he wanted the Board to call in, and you know, participate. The number was provided in the event that the Board had questions. Additionally, I note on the Petition that he does ask for a closed hearing and usually the Board will go through an analysis as to whether or not it would consider this in closed session before you even begin discussing the merits of the petition. Mr. Balsis: At this point in time, what is the pleasure of the Board? Should we go into closed session to take a look at this petition? Mr. Adams: My recommendation would be, yes, let’s do that. Mr. Balsis: Okay. The Chair will move that we go in to a closed session to hear Petition No. 2014-07. I believe only the Respondent to the petition remains in the room. Mr. Schoen: Correct. And the Board does have to move that the matter be heard in closed session and you need to have a 2/3 majority vote to conduct the meeting in closed session. Mr. Balsis: Okay, so I’ve moved. Ms. Kahakalau: I second. Mr. Balsis: It’s been moved and seconded to have Petition No. 2014-07 heard in executive session. All those in favor. Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye. The Board left regular session at 10:08 a.m. * * * * * * The Board returned to regular session at 10:20 a.m. Motion and vote: Mr. Adams moved to dismiss Petition 2014-07 for lack of jurisdiction. Ms. Kahakalau seconded the motion, and all members voted aye. 2 5. UNFINISHED BUSINESS a. Petition No. 2014-03: Informal hearing of petition by Duane Kanuha, Planning Director, requesting an informal opinion from the Board as to whether legal representation of a person before the Planning Commission by a former County employee, in a proceeding before the Windward Planning Commission, would violate Section 2-91.2 of the Hawai‘i County Code. Mr. Balsis: At this time I’m going to call Duane Kanuha and Jamae Kawauchi. Mr. Kanuha you had asked for an informal hearing because Ms. Kawauchi was representing someone coming before the Planning Commission. You have anything further you’d like to say besides that? Mr. Kanuha: Good morning Members of the Board. My name is Duane Kanuha, Planning Director. The letter was pretty explanatory. I was acting pursuant to a request from the Planning Commission to seek this determination and that was basically it. Mr. Balsis: Okay. Ms. Kawauchi do you have any…first of all I’d like to mention you presented us a copy of a March 6 letter, I just wanted to inform you that for some reason we never received it. We had asked counsel and counsel actually did an IT search I believe. Ms. Schoen: Yes Mr. Chair. When we did receive the correspondence from the Planning Director dated March 10 asserting that there was some sort of petition or correspondence from Ms. Kawauchi, I did a search on my computer as well as my secretary and also asked our IT department to do a search on the server for any type of Petition or letter, and none was found. Mr. Balsis: Okay. So I do want to thank you for submitting the letter today and I just wanted to point out that we did really try to look for it. Ms. Kawauchi: Thank you. I do appreciate that. Mr. Balsis: In review of the letter which has been circulated, I’m going to ask for a moment because it’s so lightly printed I’m having difficulty reading it, if you could tell us what it’s about. Ms. Kawauchi: Thank you. Good morning Chairman Balsis and members of the Ethics Commission. My name is Jamae Kawauchi. I’m an attorney in Hilo. The appearance that I made on her behalf was in January of this year. At that time it was raised that the County Planning Director had an issue with my representation of my client and then I guess took further action and so we’re here before you th today. My March 6 letter was submitted by request of the Planning Commission and it’s a request for informal opinion. The letter, I’m sorry, is very lightly printed. But it says that Mr. Brilhante who is the Deputy Corporation Counsel who represents the Planning Commission alleged that because I was employed by the County of Hawai‘i as a County Clerk from 2010 to 2012 and also as a Deputy 3 Prosecuting Attorney from 2012 to September 2013 that I may be precluded from representing a client before the Planning Commission. And, the Planning Commission was advised by Mr. Brilhante to continue the special permit application matter, which is Special Permit No. 845, Applicant is Hawaiian Acres Community Association and ask that I seek and receive an informal opinion from this Board concerning my continued representation of my client, and proceedings for that matter was suspended until the informal opinion was attained from you. So, it’s my understanding though that my representation of my client would not constitute an ethics violation and the submission of the letter today is not an admission of any potential ethics violation nor is it a waiver of any rights that I or my client may have law or equity should there be an issue that might be able to be litigated in the future. Okay, so then I submitted just a letter today just sending, further submitting this testimony that wasn’t previously received by you. I did try th to send it on March 6 of this year, March 6, 2014 at about 9:18 a.m. to Ms. Schoen in care of her and forwarded to Chairman Balsis and then also I sent it to Margaret Masunanga who is a Deputy Corporation Counsel also. She received th this on March 13 and she did send me a reply that she had gotten it. So I don’t know what happened with the first communication but technology is not always the best way of transmitting things so I apologize for you not getting it but it was th attempted to have been sent to you on March 6. Mr. Balsis: Are there any questions by members of the Board? Mr. Henricks: We’re talking about your employment as a Prosecutor strictly right? Ms. Kawauchi: I don’t know. Mr. Henricks: Because Code specifically says 12 months from the time that you’re trying to represent someone, it goes only back 12 months. So this would require only your occupation as a Prosecuting Attorney, right? That’s what we’re looking at. Ms. Kawauchi: I think that Mr. Kanuha needs to answer that because I don’t know the informal opinion he’s seeking. Mr. Henricks: We go back 12 months right? We’re following the code. It only applies to any occupation of 12 months prior to representing someone before any Board. Ms. Schoen: For the Board’s information, we’re looking at 2-91.2, which says no officer or employee shall within 12 months… Mr. Henricks: 12 months, that’s the cut off line. So we’re talking… Ms. Schoen: …after termination of the former officer or employee. So I guess the question would be when was her last date of employment with the Proseuctor’s office, that would be it. Mr. Henricks: My question is that your last date of employment with the County as a County Clerk was when? 4 Ms. Kawauchi: My last day of employment as County Clerk was December 2012. Mr. Henricks: Right. Ms. Kawauchi: My last day of employment with the Prosecutor’s office, if I recall correctly was sometime September 2013. Mr. Henricks: Right. Ms. Kawauchi: Section 2-91.2, there’s part a, there’s b, subsection 1, 2 and 3. There appears to be, based on this section, there’s a timeframe, 12 months… Mr. Henricks: Right. Ms. Kawauchi: There’s also, it goes on to talk about, with the representation… Mr. Henricks: Wait a minute, let’s take one issue at a time. Ms. Kawauchi: …you just want to do the timeframe? Okay. One issue at a time, okay. Mr. Henricks: We’ll start with the time limit first so we know which employment we’re looking at. Ms. Kawauchi: Okay. Mr. Henricks: Alright. Ms. Kawauchi: So that’s the question. I answered it. Mr. Henricks: So the 12 months would be the Prosecuting Attorney job. Is that correct? Ms. Kawauchi: I think that’s still a question for Mr. Kanuha. If you’re going to limit it to that time the answer is yes or no. Mr. Henricks: No, we’re asking you. Ms. Kawauchi: I can tell you my terms of employment, but I don’t know what’s at issue for the County. If they’re referring to the County Clerk’s time or the Prosecutor’s time. My last date of employment as a Prosecutor was September 2013. Mr. Henricks: That’s not important. What’s important is what is the date of last employment with the County Council, that would only be one piece, which would be as a Prosecuting Attorney, that’s what I’m trying to say. Mr. Balsis: Her last, she was terminated from employment as County Clerk in December 2012. 5 Mr. Henricks: All I’m trying to do is set the parameters of what we’re looking at. We’re looking at her employment as a Prosecuting Attorney, is that correct? Mr. Balsis: Yes. Mr. Adams: Yes, I got that. Mr. Henricks: Okay, you got that. Nothing else, not as County Clerk. So therefore, as a Prosecuting Attorney, is she in violation of the Ethics Code because she’s trying to represent somebody cause that would be in conflict as a Prosecuting Attorney in West Hawai‘i, you understand. Mr. Kanuha: Correct. It’s the time. Mr. Henricks: Okay. We can go from here. Ms. Kawauchi, now you understand why I narrowed it down? We’re only looking at one piece of employment, that’s all. Ms. Kawauchi: Thank you. Mr. Henricks: Okay. Mr. Adams: If we could take a look at 2-91.2(b) so no former officer or employee shall within 12 months after termination of that officer or employee’s employment or term of office with the County, as we’ve identified what we’re talking about since we’re looking at this today, we’re looking at something within 12 months of July 2013, right. So from July 2013 to this forward point and your employ at that point as Judge has indicated was in the Prosecuting Attorney’s office. Okay. So assist and/or represent any person or business or act in a representative capacity for fee, compensation or other consideration, or otherwise act with the former officer or employee’s own personal economic gain, now refers to your performance as the attorney for the individual that has a matter or talking about a matter in front of the Windward Planning Commission, right. So you’re representing that individual as her attorney, yes. Ms. Kawauchi: Yes. Mr. Adams: Okay. And so now the question, at least for me is, in relation to any specific case, proceeding contract application or pending legislation and of course, this is a proceeding before the Windward Planning Commission, with which the former officer or employee, in the course of your official duties with the County had been directly concerned and under active consideration or had obtained information which by law is now available to the general public. And so the question would be whether or not your representation in this matter is connected to anything that you had in your official duties in the Prosecuting Attorney’s office with which you had been directly concerned had under active consideration or had obtained information which by laws are not available to the general public. If I could ask a question separate from that though. Did you, when you left the position with the County Clerk’s office was that an immediate move over to, did you leave the 6 County employ for even a millisecond? Did you leave from the County Clerk’s office and then immediately, and then just transfer directly over to the Prosecuting Attorney’s office or was there a definitive separation in your employ? Ms. Kawauchi: My term as County Clerk ended on or about December 6, 2012 and I started the Prosecutor’s Office on or about December 10. Mr. Adams: Okay. So if there was, so for me, see here’s the question, if she had not actually, if there had been no separation, this is hypothetically, if there had been no separation in her County employ, then I think we would’ve had to consider the fact might have also considered the rest of that employ. Mr. Henricks: I disagree. Mr. Adams: That’s fine. Okay, but that, as it turns out is not the situation here. Mr. Henricks: Well, the reason is they’re completely separate jobs taken by completely separate entities. She has to be appointed by different persons to be in either other job so I don’t think they’re in any way connected in any way, shape or form. Mr. Adams: The good thing is we don’t have to have that conversation today. Mr. Henricks: We won’t. Mr. Adams: The fact is that she didn’t, she had a separation in service, if you will… Mr. Balsis: I agree. Mr. Adams: …and it’s in within the Prosecuting Attorney’s Office that we’re talking about. So, the question is that it seems that we’re looking at is there’s, did any of her performance in the Prosecuting Attorney’s Office have anything to do with this particular matter before the Windward Planning Commission. Mr. Balsis: The question is to you. Ms. Kawauchi: No. Mr. Adams: And so I guess the question then for Mr. Kanuha is you have a different perspective on that? Mr. Kanuha: No, no we don’t. The Planning Commission and our office just wanted to make sure because the situation in which she’s representing her client before the Windward Planning Commission may or may not go into quasi judicial contested case proceeding so we just wanted to insure that there was an abundance of caution that should that proceeding go forward that at some point in time that it wouldn’t be tainted, the whole proceeding wouldn’t be tainted. 7 Mr. Henricks: Alright, let me say something first before we conclude. Normally, normally, I could in my experience in the law, I could see there would be absolutely no connection between a Prosecutor and a Planning Commission. If there were to be a connection it would have to be an exception, you understand that. Mr. Kanuha: Correct. Mr. Henricks: Okay, it would be exceptional circumstance. Now, do any of you, either of you, know of any exceptional circumstances where this might of occurred? Mr. Balsis: Jamae? Ms. Kawauchi: No. Mr. Kanuha: I don’t. Mr. Henricks: I don’t either. Mr. Balsis: Counsel, do we need to have a motion at this time or do we just have a finding that we all agree to? Ms. Schoen: Well you’re in informal hearing right now, so your options you would probably undertake a motion at this point to do whatever it is you want to do. Mr. Balsis: Do you want to go ahead and make a motion Doug? Mr. Adams: I mean I heard what Mr. Kanuha said and I think that this is narrow as well. Given the current representation in front of the Windward Planning Commission, I would, let me try that again, I would move that in light of Ms. Kawauchi’s representation in front of the Windward Planning Commission on this particular matter that there is no violation of Section 2-91.2(b), that’s what I recommend. Mr. Henricks: I second the motion. Mr. Balsis: It’s been moved and seconded that there is no violation of Ms. Kawauchi in her representation of her client to the Windward Planning Commission to Section 2-91.2(b). Is there any further discussion on this motion? Hearing no further discussion, I call for a vote. All those in favor of this motion, say aye. Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye. Mr. Balsis: All those opposed, none. There are no oppositions. That clarifies, and also hopefully the discussion will help you in going back to the Planning Commission as well. Mr. Kanuha: Thank you. Mr. Balsis: Thank you for coming in. 8 Ms. Kawauchi: Thank you very, very much, thank you. Ms. Schoen: Just for the parties’ information the Board will be preparing an order and be provided to you. There’s no need to come back. b. Petition No. 2014-06: Informal hearing of petition by Gail Ranfranz alleging that County employee Derek Lee is in violation of Section 2-83(a)(3) due to treatment during a telephone conversation on May 17, 2014. Mr. Balsis: There was an email received from Ms. Ranfranz, excuse me, where she wants to dismiss her petition. So with that in mind, this petition has been taken away. Am I correct counsel? Ms. Schoen: Actually, she withdrew her petition… Mr. Balsis: Yes. Ms. Schoen: …not wanting the Board to take any further action and so simply withdrawn and there’s no action for the Board. Mr. Balsis: So Petition No. 2014-06 has been withdrawn. c. Petition No. 2014-04: Review draft order dismissing petition by Arthur Varady alleging that Emily Naeole, a candidate for County Council, is in violation of the Code of Ethics because she went to Pāhoa Senior Center to announce she is running for County Council and gave twenty tickets to the site manager for distribution. Mr. Balsis: Has everybody had the opportunity to review the Petition. Mr. Adams: No. Ms. Schoen: The order. Mr. Balsis: The order. Shall we take a moment please. Go ahead. Ms. Kahakalau: I move that we accept the Order Dismissing Petition No. 2014-04 filed by Petitioner Varady regarding Emily Naeole. Mr. Henricks: I second the motion. Mr. Balsis: It’s been moved and seconded to accept the Order Dismissing Petition No. 2014-04 and there’s a small amendment in the actual written document. It’s been moved and seconded. Is there any further discussion? 9 Mr. Adams: Given that there is a small typographical error, given the number that we not have to revote this that we accept it with the understanding that we will correct that small typographical error in the final document. Mr. Balsis: I think that’s understood by everyone here. Any further discussion? All those in favor. Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye. Mr. Balsis: All those opposed. Hearing no opposed, the motion is passed. d. Petition No. 2014-05: Review draft order dismissing petition by Mark McNett alleging that County officers Debra Hecht and Gail Byrne-Baber are in violation of Section 2-91.3(6) of the Code of Ethics, by inter alia, “creating, expanding, and propagating PONC” and “made several personal suggestion each for PONC purchases…”. Mr. Balsis: Has everybody here had the opportunity to review the Order Dismissing Petition? Is there a motion to approve this order? Mr. Adams: So move. Mr. Balsis: It’s been moved and seconded. It’s been moved, is there a second to this motion? Ms. Kahakalau: I second. Mr. Balsis: It’s been moved and seconded to approve the Order Dismissing Petition No. 2014-05. Is there any further discussion? Hearing no further discussion I call for a vote. All those in favor. Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye. Mr. Balsis: All those opposed. It has been approved that Petition No. 2014-05 is dismissed. Mr. McNett: Excuse me but do I get to say anything? Mr. Balsis: At this point in time, no, the discussion regarding the Petition was at the previous meeting. This was simply a review of the Order Dismissing the Petition for the reasons discussed last meeting. Mr. McNett: So I would’ve had to be here for the public testimony. I don’t get to say anything about my petition and present the evidence that I brought that I wasn’t able to present the last time. Mr. Balsis: I’ll give you 3 minutes, consider it public testimony. Mr. McNett: Yeah, you said take a few minutes last time and I contacted Corporation Counsel in advance. Mark McNett, the name. And I asked about the duration of 10 testimony and I asked about presenting video evidence, and I also asked about the general Board of Ethics proceedings and protocol format. And the third question was well answered and I really didn’t get an answer on the video testimony and the duration of testimony, but so far I’ve been here 2 times now, a month ago and now, and I was told to take a few minutes and I understand because Monday the th 14 the PONC Commission, first I don’t, Communication 14-05 Resignation of the Vice Chair and you know I think you can all be proud that you had such a big part of exposing a $13 million fraudulent falsification of taxpayer money to be spent and that kind of number and I’m just going to formally ask you right now, st on record, I would like to present this Finance Committee of County Council 21 Session November 1, 2011 government document video. It shows Commission Hecht lobbying and, you know maybe before I leave you can answer the question, do I have to do the entire investigation because if you go to the County Clerk’s counter and say, you know, could you give me a research Debbie Hecht’s appearance before Council. And you’ll see time and time again, and again and again she’s over there basically giving the same speech promoting PONC, promoting, wanting, wanting the money for her and her friends and groups that she’s associated with. Here’s, from the last election, off her website printed out. This is a $20 to $35 item depending on where you get it. This is a $5 item I saw. Now sure you could print out on a 8 ½ by 11 piece of paper for probably 5 cents okay, but this is evidence that she has carried on throughout the whole existence of the Commission plus during her tenure on the Commission. She’s carried on a sustained, sophisticated, lobbying effort. And I just feel it’s not, it goes more than questionable. It’s not just like hanky-panky high jinks, and what’s the other thing, escapades or you know shenanigans, this is a $30 million program and $13 million has already been proven to be faked up. And I appreciate, I think I probably covered the three minutes and it’s up to you if you want to take a look at this stuff, this is a government document, unaltered in anyway, DVD-R, you can’t change that. So, do you want me to bring it here or take it over to the Lagoon Center or if you don’t want to take a look at it, I guess I can start all over again, you know. Thank you. Mr. Balsis: Thank you for your comments. I believe we’ve taken care of this at this time. Ms. Schoen: Yes Mr. Chair your next Petition would be 2013-10. e. Petition No. 2013-10: Review draft informal advisory opinion finding County employee Robert Northrop in violation of Section 2-83 of the Code of Ethics because he did not treat Petitioners Chris and Annette Pickens in a courteous, fair and impartial manner. Mr. Balsis: Yes, I understand you were unable to finalize the draft. Ms. Schoen: Yes Mr. Chair. I am asking the Board for additional time to complete the Informal Advisory Opinion it was a little bit more time consuming than I anticipated. 11 Mr. Balsis: What do the other members of the Board think of this? You’re granted. We’ll be reviewing that and if possible we could get a copy before hand and then we’ll be able to actually review it and make comments at the meeting. Ms. Schoen: Thank you Mr. Chair. Motion and vote: Mr. Balsis moved to go into Executive Session. Mr. Adams seconded the motion, and all members voted aye. The Board left regular session at 10:50 a.m. * * * * * * The Board returned to regular session at 10:58 a.m. 6. VOTING ON EXECUTIVE SESSION a. Review of the executive session minutes of June 25, 2014. Motion and vote: Mr. Adams moved to approve the executive session minutes of June 25, 2014. Mr. Henricks seconded the motion, and all members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawai‘i County Code, by County board and commission members and designated County employees, where personal matters were reviewed. Motion and vote: Mr. Balsis moved that numbers 2 and 3 be approved and numbers 1 and 4 be returned for further information. Ms. Kahakalau seconded the motion, and all members voted aye. 7. ANNOUNCEMENTS Mr. Balsis announced that the next monthly meeting of the Board of Ethics is scheduled for August 13, 2014 at 10:00 a.m. at a location to be announced at a later date. 8. ADJOURNMENT Mr. Balsis adjourned the meeting at 11:00 a.m. Respectfully submitted: Renee K. Lawrence, Secretary 12