Loading...
HomeMy WebLinkAbout2015-03-11 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Wednesday, March 11, 2015 10:02 a.m. to 12:20 p.m. Hawai`i County Building 25 Aupuni Street Council Chambers Hilo, Hawai`i 96720 Members and Staff Present: Bernard Balsis, Chair Ku Kahakalau, Vice Chair Douglass Adams, Member Arne Henricks, Member J Yoshimoto, Deputy Corporation Counsel Renee N.C. Schoen, Deputy Corporation Counsel Emily V. Hirayama, 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 FEBRUARY 11, 2015. Motion and Vote: Mr. Balsis moved to approve the minutes. Mr. Adams second the motion. All members voted aye. 4. NEW BUSINESS a. Petition No. 2015-01: Initial review of petition alleging that a County Officer or Employee is in violation of Sections 2-83 and 2-91.3 of the Code of Ethics because he "worked hand in hand with a [sic] unregistered lobbyist organization" and "showed no fair treatment". Mr. Balsis: Is the petitioner here? Mr. Revell? Would you please come forward? Ms. Schoen: Mr. Chair, while parties are coming forward, I just wanted to let the Board know that I will be providing legal counsel to the Board of this particular item. Mr. Balsis: Thank you very much. Mr. Balsis: At this time, I'd also like to ask the petitionee that would be Dru Kanuha. If you wouldn't mind coming forward. Have a seat. Mr. Balsis: Please correct me if I'm wrong counsel the purpose of this session right now is to review the petition to see if we want to go further with regards to informal or formal hearing. Whether or not we're going to let it go at this time. So I just wanted to make sure that everybody understands that. At this point and time I liked to ask. Mr. Henricks: Before we proceed, I'd like to recuse myself from this particular petition. I don't know if everyone here knows, but Mr. Kanuha knows my son works work directly under Mr. Kanuha. At this time, I feel like I would be disqualified to hear this particular petition because of that reason. Since they do work close together I'd want to recuse myself from this. Thank You. Mr. Balsis: Yes. You are excused. We still have a majority, we still have three people here so we'll continue with hearing of the petition. Mr. Balsis: Mr. Revell. I'm gonna give you the floor to discuss your petition. Mr. Revell: Can everyone hear me? Thanks for having this session today. Before I get into the meat and potatoes of the whole situation here, I want to explain why I'm here. Some people may say, oh he's a retailer, he's only concerned about tobacco and he's part of big tobacco. I'm a mom and pop store. I'm a local boy who grew up here on the Big Island. My uncle's a judge, Shinichi Kimura and you guys may know him. My family are the Kimura's and there're from here. Three years ago, I watched my dad die from cigarettes and I own tobacco stores. All my life I seen him smoke. A big thing of this thing that my whole argument here is concerning the E-Cigs not the tobacco. Seeing your hero die right in front of you is really hard and I have a product that I've been selling since 2009 it's called electronic cigarettes. I don't know if any of you are familiar with how they work, but every day I sell one I save a life. You know the facts, there's two sides of the argument E-Cigs are bad and E-Cigs are good. Tobacco Free Hawai`i claims that we sell them to kids. They went on national public radio and said that they're under attack from the E-Cig industry who's comprised of two local mom and pop shops here on the Big Island. Insane. They're making a mockery of something that I hold personally and dear to my heart because this effects everybody. Effects moms, dads, children, you know their ability to be with them and enjoy life because I know how bad tobacco is. You know, I started this petition here, sent it in, whatever you call it because of the fact that I felt that as a constituent in Dru Kanuhas' district being that I have a store in Kailua-Kona. I felt that I was ignored, I felt I was just not treated fairly due to the fact that you know I have a business that relies partly on the sale of electronic cigarettes. I have customers that rely on electronic cigarettes. The Legislation created hinders that freedom and ability to use electronic cigarettes in outdoor areas. People 18 to 20 that are hooked on cigarettes that use electronic cigarettes can no longer buy them here in Hilo. They can buy them online that's fine and that's part of the law. That's okay for them to buy them anywhere else, but not here. And I wanted to know why. I really wanted to just sit down and talk to Mr. Kanuha. See both side of the coin and say, hey this is our side of the story and, this is what we do with electronic cigarettes. This is how they work. Come to our stores and ask our customers. How does this benefit you guys? Is there any health benefits? What's the pros and cons of this product? I can tell you this. Based on the research from what I understand, which was greatly provided by Coalition for Tobacco Free Hawai`i and how bad E-Cigs are and how they're killing people and all this other stuff. There's no scientific proof. What researchers have they used, come to my store, test my products and show me that there's formaldehyde or anything else that these test are showing. None. What doctors and/or toxicologist have they talked to locally and you know got opinions on electronic cigarettes. None. I have a customer his name is Dr. Wald, he's right here on the Big Island. Kamuela. Michael Wald. He came into my shop in 2010 and he had about four E-cigarettes in his pocket, so why do you have some many E-cigarettes. I was a heavy smoker and you know what nothing in here causes cancer. At the time I didn't know much about E-cigarettes. I know they work and he told me well. So how do you know? I'm a toxicologist, my name is Dr. Wald nice to meet you. Ever since then, you know in 2011 when I got the call from my dad who said son I got some bad news for you. I'm on the mainland in a trade show. He says I got good and bad news. Good news I'm still alive and in one piece. Bad news is I have until the end of the year to live. I have until December and he passed away on January following that. Just from seeing everything that we do with customers and seeing how their lives have benefited from electronic cigarettes I just felt betrayed that this group here The Coalition for Tobacco Free Hawai`i. On the outside looks like a feel good group for the community that comes and helps people stop smoking and everything else. Looks good on the outside,the fact of the matter is they're partly funded by pharmaceutical companies that don't want E-Cigs around. They want people to continue to take Chantixs which is known to kill people. Just coming out now. Gums, patches and other susitation devices that consumers pay millions of dollars for. The State pays millions of dollars for these programs to stop smoking. When I found out this information, I felt really betrayed that why would an organization that supposedly wants people to stop smoking, stop them from using products that are more effective. So I wanted to talk to Mr. Kanuha about that and just ask him "Hey what's going on? I just want to find out facts as a constituent I just want to say, hey you're gonna vote how you're gonna vote, but I'd like to have my voice heard. Have my thirty plus employees voices heard and have my hundreds if not in the thousands of customers heard. Why are you making these laws that are hurting them, in a sense killing them? Now, there's other issues to the fact of bill, I forgot the first bill here was 135. Which made tobacco products, retailers can't sell tobacco products including electronic cigarettes with or without nicotine to people eighteen to twenty. Okay. Why? You know I have customers that come in that are diabetics that use electronic cigarettes with liquid containing no nicotine with such herbs like eucalyptus, Damiana and other herbs that are infused in the oils that help them open up their lungs. Why are they denied these products? Mr. Balsis: I just wanted to make this statement that why we're talking about the pros and cons of electronic cigarettes with regards to the petition. I think it's necessary to direct, be more direct to the two contentions that you have with Dru. Mr. Revell: Okay. Well Mr. Balsis: You understand. Mr. Revell: Sure. Mr. Balsis: Thank you very much. Mr. Revell: I'm sorry, I'm ranting and I apologize. I don't want to take up your guys' day. If you guys want to go have lunch later I down I'll catch the bill. You included Dru. It's no hard feeling man, I'm just here because I just wanted my voice heard and start off with it. Ordinance 1324, that's Bill 135. As a retailer, we had a meeting on June 2, 2014 regarding question and answer session. The problem is, most of my questions went unanswered that session was held by the County of Hawai`i and Coalition for Tobacco Free Hawai'i, which was unregistered as a lobbyist and had a heavy influence on that bill. Okay. I had several questions and I'm not going to get into them. They couldn't answer my questions and answers that they gave me to questions that I couldn't answer was, we'll get back to you on that. It's been a year, almost a year, six months and sorry, not almost a year, six month. I've been hanging there and not knowing you know the regulations of the bill, what can I do? What can't I do? I had to go and pay an attorney to look at the law and interpret it and tell me this is what you can do and this is what I can't do. I've tried to get in touch with several of the organizations, Mr. Kanuha's office and Prosecutors' office. What can I do? What can't I do? Nobody gets back to me. I can't run my business. I don't want to get fined, I don't want my employees to get fined, because in the tobacco business your employees are responsible for the fines. I just don't want that happening, so I gotta know how to run my business and this right here just doesn't help me at all. So I wanted get in touch, I wasn't treated fairly and the bills went through. Then it comes down to Bill 302 again when I called him in November 2014, I had my concerns and my questions about the Bill 135. I had my concerns and questions about Bill 302. Both of which I wanted to talk to at the same time. I never got the courtesy call back. This is issues that affect me financially as far as my business goes. Affects me emotionally, I stay up and think about like okay, now I know why people don't vote. Our voices aren't heard, nobody cares this what I really felt like. I still stay up at night about it like why the people that are put in place, put in office to protect us, to support us, whether they're on the same page as you or not. The very least they can do is listen to your concerns. This is a concern not only affected me, affected all my customers and my thirty plus employees. This bills did have an impact on our business. It was a negative impact and its negative press on people say this bill pass, this bill pass maybe E- Cigs are bad they get in their head. Will stay away from that and we'll stay with traditional tobacco. Now, the fact of the matter is there is unfair treatment. The unregistered lobbyist part I found out cause one of the hearings here for Bill 302 someone was against this bill mentioned that in order to be a lobbyist in the County of Hawai`i you have to be registered. Funny thing is the next session Tobacco Free Hawai`i was registered, they weren't registered before that, County of Hawai`i. They did their testimony,they brought in their friends, their association and their network of people be it other non-profit organizations or whatever it is. They said their peace, they accused us of selling E-Cigs to kids and they used whatever information they used from Google or wherever they get their scientific information from. Vilifying a product that I know helps people. Whether you're for or against E- Cigs the fact of the matter is I've been treated wrongly. My voice was not heard and I didn't get to say my part. On top of that, I went in and talked to the County Clerk's office. I talked to Mr. Maeda while he was here and I had some questions that weren't related to the bill. I shared with him my problem with not being able to get in touch my Councilman and he said well you know I'll get back to you on these other issues. He went above and beyond what he was supposed to. He actually called Mr. Kanuha I guess apparently talked to him along the lines and he called me back and gave me information on my other question. By the way, I talked to Mr. Kanuha and this is back in December and he said he apologized that he wasn't able to get back to with you and he was on vacation. Okay. So I figured I'll get a call in a few weeks at least. January comes, no call, February comes, no call this is March still no call. So back in February, I was like what can I do to have somebody listen to me so I filed a complaint. I have no personal bad feelings against Mr. Kanuha or anyone else when it comes to politics. I have my opinions and I'm entitled to that as a member of the public. What I do have a problem with is somebody not doing their job and not supporting the people there here to represent. I'll be honest with you people, four months to not call someone back working a part-time position for full-time pay and benefits is not acceptable. That's why I'm here. That's all I have to say about that, you guys have all the information on my complaint in front of you. That's the basics. Mr. Balsis: I want to thank you very much before we allow Mr. Kanuha to say some things. Do we have any questions? Mr. Adams: I don't at this time. Mr. Balsis: Okay. I just wanted to clarify a couple things. Were you able or did you make any effort to contact any other Council people or did you stick with the Council members where your business is located? Mr. Revell: I reached out to everyone single Council member regarding Bill 302. I sent them all emails, four out of nine got back to me. Actually not four, this is a second Council, newest Council four out of nine talked to me about it. Two out of nine, talked to me back then, actually one, excuse me sorry one, correction. One. That's Fresh Onishi who's not even in my district in Hilo and he got back to me later on. The two new Councilman got back to me and Gregory [sic] Ilagan in Puna. So I invited all of them to say hey these are my concerns here. Although, I'm not in your district as a person whose been affected by tobacco, as a person who is in the business and who's a professional on E-cigs, I know that the Council can't be expert in everything. Mr. Balsis: Right. Mr. Revell: What they can, is go down to the experts and find out the facts. Mr. Balsis: Another question is. You mentioned that you had attended hearings. Mr. Revell: Yes. Mr. Balsis: Were you able to speak during those hearings? Mr. Revell: Yes. At those two hearings I also mentioned and I said that I mentioned Mr. Kanuha never called me back. Mr. Balsis: Okay. Mr. Revell: I still never got a call back. Mr. Balsis: Then after you filed with Mr. Maeda and he mentioned that he spoke with Mr. Kanuha. Mr. Revell: Yes. Mr. Balsis: Had you tried to contact Mr. Kanuha's office again or you just waiting for the call? Mr. Revell: I was waiting for a call back. Mr. Balsis: Okay. Mr. Revell: I thought you know, that okay he was busy and he was on vacation I understand. When you go on vacation you tend to forget a lot of things. I know how it is. I totally understand that. I didn't get a call back. Mr. Balsis: Okay. Mr. Kanuha you did write a response to the petition, but at this time do you have anything that you'd like to say? Mr. Kanuha: Good morning Chair Balsis, Vice Chair Kahakalau and Commission Member Adams. Mahalo for hearing you know the petition and good morning. I'm not going to add too much of from what I stated in my letter. I think I put everything in there and just real quickly I'd like to apologize to Mr. Revell for really not calling him back. I do apologize for that and just thank the Commission for hearing us this morning and hearing on what Mr. Revell has to say. So again I do apologize for not getting back to you. In addition to the statement I wanted to just add that this bill didn't come from any organization or any group. It came from the constituents that called me and said we have issues in our community. They're the ones that spearheaded this bill in the first place so that's where this all came from. That's what I didn't add in my letter that I'd like to just put that down for record for the Commission to look at. That's all I pretty much had to say and I'm open for questions. Just to reiterate again the sincere apology that I didn't get back to you. My letter pretty much states for the record why, reasons happen why it's difficult to. I mean it's not difficult but it just there's a lot going on so hopefully you read the letter and you can ask me questions. I'm here to any answer any question that you might have. Mr. Balsis: The Chair does not have any questions. How about Doug? Mr. Adams: Point of Clarification. In your letter, you make the statement to my knowledge the Coalition for Tobacco Free Hawai`i does not fit the definition as a lobbyist since as a 501(c)(3) Tax Exempt organization they're staffed by volunteers to receive no compensation or other consideration for their efforts. Do you know for a fact that the staff of the Coalition are all volunteers or is that your supposition for the letter? Mr. Kanuha: That's what I might understand. I don't know for a fact. Mr. Adams: Okay. Thank you. Mr. Balsis: I'd like to ask Counsel a question. That has to do with lobbyist and whose responsibility it is to make sure that if somebody is a potential lobbyist that they are registered. What responsibilities does a Council person have in making sure that if someone is lobbying with them that they are registered? Ms. Schoen: Yes Mr. Chair. I'd like to direct the Board's attention to 2-91.3 and basically our Hawai`i County Code puts a burden on the lobbyist to register. There's nothing in this section which would place a duty or responsibility on any other County officer or employee to insure that lobbyist are registered. Mr. Balsis: So is that to say it from your reading that there's no one or party in the County to make sure that lobbyist are properly registered? Ms. Schoen: That's correct. Mr. Balsis: I'd like to just make a personal statement. That is in a previous life, when I was with the Boys and Girls club we would go to the State Legislature. Our purpose was to educate them on our programs not to lobby. I know it's a fine line, but as a non-profit that's something that we had done in terms of education and educating legislators of the type of things we do. Mr. Balsis: Are there any comments on. I look at petition having two parts. One in terms of dealing with a lobbyist and one being fair treatment. Are there any comments by anybody on the Board? Ms. Kahakalau: There are stipulations as a non-profit that you are not allowed to lobby or only a certain amount of lobbying. There's some pretty strict provisions that guide the lobbying efforts of non-profits, but I don't know that we can really figure out here whether that happened or didn't happen right. So that's kind of what makes it difficult is that I don't think we have any information in terms of the, or enough information to make a decision on whether the lobbying issue is something we can make a decision on. Mr. Balsis: At this point and time and I'm gonna be asking for concurrence with the rest of the Board. With regards to the petition in terms of with respect to the lobbyist. That's something out of our sphere of control. Apparently, nobody has any jurisdiction over making sure our lobbyist is registered. Mr. Adams: I'll let Counsel go ahead. Ms. Schoen: The lobbyist provision is under the jurisdiction of this Board, so the Board can look at whether or not an organization or a lobbyist has in fact registered or not. With respect to this petition though, it's my understanding that there are allegations regarding a lobbyist not being registered, but that particular entity is not before you today. You have a Council Chair before you and in answer to your previous question, there's no duty placed upon an officer or employee such as Mr. Kanuha to insure that the lobbyist are registered. The burden is placed on the lobbyist themselves to register. So if the Board is looking at whether or not that organization was in fact registered, I believe that's something to, you have to bring that organization before this Commission rather try to do it thru Mr. Kanuha who has no duty or obligation to insure that they are in fact registered. Mr. Adams: My comment was essentially going to be what Counsel said. This is in our wheel house when looking at whether or not there is a registration of a lobbyist. Our ability to and I agree with Ku, the ability to answer that question today we don't have the information to do that. So I'm not making a motion yet, but I think as a part of our consideration will be the fact that we don't have all the information on here. We have the petition here, when we decide and when we put forward a motion determining what we're going to do. I think that's going to inform our decision making on whether to continue this, whether to move it into informal advisory or whether to dismiss. Not having the information available to us right now is of concern to me in that regard. That's on the lobbyist registration. I think that the second piece here that we have which has to do with the unfair treatment, the item that comes from 2-83. 2-83 which is all persons shall be treated in a courtesy, fair and impartial manner. That's the other issue here that I think is specifically associated with Councilman Kanuha. I think that is, I think we can separate that out for consideration. At least that would be my suggestion when we consider a motion for what we will do. Mr. Balsis: I agree with you. So at this point and time I'm asking if there is a motion or further discussion, any questions to the petitioner or to the petitionee on moving forward? Mr. Adams: So my motion would be along the lines of the item that has to do with the unregistered lobbyist issue which falls under 2-91.3 is something that I would move to into an informal hearing, an informal advisory hearing process. That would allow us then to bring in the Coalition here, have some conversation with them and understand their situation as well. Whether or not they were at the time that this was being all considered that they were unregistered in violation of the statute. That would be a motion to address that piece of the petition. That's a motion. Mr. Balsis: Let me re-state the motion. There is a motion on the floor to split the petition into two parts: One is to take into consideration whether or not the Coalition for Tobacco Free Hawai`i is or should have been a registered lobbyist. That would be done in an informal hearing at a later date when the Coalition can be here to discuss their side to that question. Mr. Adams: I like your motion. Mr. Balsis: Okay. I believe that motion was seconded. Ms. Kahakalau: Yes. Ms. Kahakalau: I don't know that we would want to make it so specific on, it just that one of the issues with the Coalition and their lobbying. It could be even as a non-profit, it shouldn't be lobbying. I think it's not just necessarily that they registered as a lobbyist, but it would be what their involvement in passing this law was. Any rules violated and any laws violated in the process. Mr. Adams: My comment on that would be that our jurisdiction is pretty narrow though. Whether or not as a 501(c)(3) they were lobbying, that's up to the IRS. Our consideration is whether or not they actually registered. Were they lobbying, did they fit within the definitions that we have here. Those are the kinds of things that I think we have to focus on. Mr. Balsis: First we determine if they were lobbying and if they were lobbying were they appropriately registered. Mr. Adams: Actually, first we have to identify were they a lobbyist. Did they fit in the definition? Then were they lobbying and did any of those actions violate the statute as we have it in 2-91.3. Mr. Balsis: Go ahead Counsel. Ms. Schoen: Mr. Chair, my concern here is due process. The petition itself names Council member Kanuha as the respondent and you are talking about bringing in an organization who technically does not have notice of this petition. What I prefer that the Board do is if you, I guess deal with Mr. Kanuha as a respondent with respect to the lobbyist issue. It sounds as though you're looking directly into whether or not they were registered. He has no duties regarding whether or not they were registered, then maybe that part of the petition should be dealt with respect to him. Mr. Adams: So if I take a look at the petition as it is written, I have the petition itself which is open right so I'm allowed to say what's on here. Right. So illegal bills created by Dru Kanuha and the Coalition for Tobacco Free Hawai`i. Unregistered lobbyist in Hawai`i County influencing Council members administrative actions. Unfair Treatment by Dru Kanuha. Specific section of the Code of Ethics that it talks to is 2-83 Fair Treatment and 2-91.3 Lobbyist Registration. Then we have the attachment that addresses those, provides a statement of the facts as well as the statement of the position. My motion is specially associated with the potential unregistered lobbyist concern, which I feel that we have the ability as Board to take on our own to consider. Now if it's important to say that or if it's important to separate that out from the petition, then you know we can do that as well. Mr. Balsis: In this particular instance, I would go along with Counsel and that we separated it out of the petition because in my opinion Mr. Kanuha did not have a responsibility to verify if the person was an actual lobbyist. So that part of the petition, later on I would move that it be dismissed. Mr. Adams: Okay. Mr. Balsis: We do have investigatory powers and from that view point we would have a motion to take a look at the Coalition. Mr. Adams: Okay. Mr. Balsis: In that case, I would like to modify and change motion as I may all together. The motion has two parts: 1) The Chair moves to dismiss the aspect of the petition of Mr. Dru Kanuha being influenced by an unregistered lobbyist. Is there a second to that motion? Ms. Kahakalau: Second motion. Mr. Balsis: It has been moved and seconded to dismiss the aspect of the petition where Dru Kanuha was potentially influenced by an unregistered lobbyist. I'd like to state in the discussion that the purpose of that dismissal is that Mr. Kanuha does not have a responsibility to verify if someone is a registered or unregistered lobbyist. Through the discussion, it has come to this Board's attention that there is a potential unregistered lobbyist and that we will be discussing that separately. Any further discussion? Mr. Adams: No. Mr. Balsis: Hearing no further discussion. I call for a vote on the motion to dismiss that particular aspect of the petition that Mr. Dru Kanuha dealing with an unregistered lobbyist. All those in favor? Mr. Balsis, Ms. Kahakalau and Mr. Adams (simultaneously): Aye. Mr. Balsis: Moving on with the petition itself, the aspect of Fair and Unfair Treatment is still there. Is there any discussion about that? Mr. Adams: Let me tackle this. As a Board member of this particular Board, I look at our legislators which was the Council members and give them some, probably more leeway then I would the administrator of the executive action/branch folks. When it comes this particular section, all person shall be treated with a courteous, fair and impartial manner that phrase. I do that because there is a direct way for citizens to indicate their displeasure with the Council members if they don't occupy/demonstrate courteous, fair and impartial treatment of their constituents. Whereas, that isn't necessarily the case for our executive branch folks. In that particular case, I kind of look at that and I say executive branch folks we're kind of that way of city/county residents coming forward to say I wasn't treated well and so we're kind of the way that we can address that. At least one of the ways. When it comes to our legislators, our elected folks I have a little less of a stringent view on that. So where do we go, obviously if the extreme nature on this. If a Council person swears at somebody, swears at a witness in a Council meeting that's for me clearly discourteous and if brought to my attention here in this particular situation I would say so. I think that's an extreme case. Where do you draw the line when it comes to somebody not necessarily not getting back to you? How much time should be allotted? Those are really questions that I don't think this particular for me that this particular phrase of, all person to be treated in courteous, fair and impartial manner by the officers and employees of the County is intended to address. I think reasonable people can disagree on that particular thing and I think simply gray area. I would defer on the legislative side to our voters being able to address that in our elections which are pretty, every two years is pretty frequent. I'm inclined to say that in this case the fact that the Councilman didn't get back to you in what you would think would be a reasonable amount of time may not be a credit to the Councilman, but I don't think it's against the law which is what this would be. So that's my comment and how I feel about that. Mr. Balsis: That was a good comment. Do you have any comments? Ms. Kahakalau: Did you have a chance to read Mr. Kanuha's letter as well? No you didn't get that. So in the letter it states that it was an oversight and he apologizes in the letter and he apologized to you. He is willing to meet with you per his letter and discuss the issue. If that is a major part of it is for you to be heard. Right. The idea is you have a side of the story that you want to be heard and that you have a right to be heard. Mr. Kanuha at this point is offering to hear it. We're not going to say what time did you call, how many times did you call, did you write, did you email, did you leave messages and getting into what happened. The same way with Mr. Kanuha, did get the messages etc., but rather try to deal with the situation say that it was an oversight on his part and he definitely apologized for it. I think hopefully learn from that situation as well, that it's not something to do is to ignore the phone calls or especially with their repeated phone calls of his constituents. At this point and time he's willing to meet with you and to hear your side of the story which I think is really you wanted to be heard. Mr. Revell: Can I make a comment? Mr. Balsis: Yes. Please do. Mr. Revell: With respect to Mr. Kanuha I accept his apology. My whole point of you know not only wanting to be heard in filing this petition is a fact that legislation has been passed illegally that affected my business. I wasn't able to get in touch with Mr. Kanuha or the powers that be to express my concerns. I wasn't treated fairly and its four months is not an appropriate amount of time. I respect your opinion Mr. Adams, but to me if someone who is self- employed and relies on my public officers to protect then legislate. The laws that are pertain are to protecting us as the people. It is a big concern and when someone is, if I was a boss of a company and I had a worker that I asked to call me back. Call me back I got something to talk to you about. He didn't call me back. Okay. Tell the manager of that worker say, hey I talked to so and so, tell him to call me back, that person calls in so and so the boss called you. Can you call him back? If you don't call that person back, we have problems. It's the fact of the matter is I wasn't offered any common courtesy. In December, Mr. Maeda called me and said he spoke to Mr. Kanuha. Great. He said he'll call you back. He's on vacation. It's March. The laws are the laws they passed and whatever it is what it is, but my problem is that I wasn't able to protect my business, to protect my customers and protect my employees. I wasn't able to give my side of the story and that's all I asked at the beginning. Now the fact of the matter is the laws are passed and damage has been done. What's gonna happen now? That's the only comment I have and thanks for hearing that. Mr. Adams: To your comment. Just to make sure that we're clear here. We have no jurisdiction as a Board of Ethics over the bills that are passed by the Council. You understand we can't address that element of your petition. Okay. Thanks. Mr. Kanuha: Thank you. I just wanted to mention I did apologize for not getting back, but you know the beauty of submitting legislation as a Council we have we give a lot of opportunity for the community to come in and testify on all of our bills. This particular bill was heard on over two months. I think four hearings public hearings that the community has a great deal of opportunity to come and testify before the Council members. That's the great part about open government and being able to hear from the people what's important in their minds with regards to legislation as passed before the Council. I just wanted to state that. Mr. Adams: If I might, I just want to make sure Mr. Revell you're not arguing that you didn't have an opportunity to testify in open session before the Council that's not what you're arguing. Your concern is as a constituent, you didn't have a reply from your Council member. Correct. Mr. Revell: Right. Mr. Adams: Thank you. Ms. Kahakalau: I was gonna go along the same line. Whether you talk to Mr. Kanuha or not really would not have changed the passage of the bill. In general, because that's what we have hearing for. I did want to also let you know that there are opportunities to repeal any bill. There is a process for that and if this is something that is impacting your business. If you can come up with the data that you're presenting to us here that is scientific data,I would definitely suggest that you think about initiating that process, providing testimony and giving enough people to re-consider the issue. Thank you. Mr. Balsis: Is there any further discussion? I ask is there any comments from the petitioner?Petitionee? Is there a motion on the end? Mr. Adams: I would move that the Petition 2015-01 be dismissed for what's the phrase I'm looking for Counsel? For lack of.. I don't think it meets the threshold of the statute in both cases. Ms. Schoen: That's fine how you said it. Ms. Kahakalau: Seconded. Mr. Balsis: There is a motion that has been seconded on the floor to dismiss the entire petition 2015-01 because it has not meet the thresholds of the Code. Is there any further discussion on it? Hearing no further discussion, and there has been a lot of discussion concerning avenues and future meetings I'll call for a vote. All those in favor of this motion say Aye. Mr. Balsis, Ms. Kahakalau and Mr. Adams (simultaneously): Aye. Mr. Balsis: Petition 2015-01 has been dismissed because it has not met certain thresholds of the Code. Mr. Balsis: Moving forward. We do have an item that came out of Petition 2015-01 which is not directly related to it. If I'm correct it has to do with our investigative powers. Before proceeding into new business, I'd like just to take this up now because it's all related. Ms. Schoen: Mr. Chair under Hawai`i County Code 2-91.3 subsection G it empowers the Board to render advisory opinions with respect to application of that section to any person. Related to that, your rules authorize you to hold hearings or conduct and investigation as to whether or not the organization should have been registered. My suggestion would be in accordance with your rules to style a motion in the form of a resolution that the organization be requested to appear before the Commission and respond to whether or not they are required to meet the provisions of 2-91.3. If that motion does pass, then what we would do is the Board staff or Chair could issue a letter informing them of your resolution and then asking for them that they appear. Mr. Balsis: This has been discussed. Would you like to phrase the motion? You had three aspects to it I believe and I believe that we should mention it in the order so it also gives direction to the organization as to how we're going to proceed and what they need to discuss with us. Mr. Adams: You're catching me up short. I'm not aware of three things you're talking to. Mr. Balsis: One was. What were they doing, Were they lobbying... Mr. Adams: Yes. The ideas whether or not they're lobbyist, whether they were lobbying, whether or not if both of those were an affirmative, whether there was any violation of the statute here in this situation that we have that we're looking at. The situation that we're looking at has to do with the development and passing of this ordinance. So that's the specifics that I'm aware of that we're talking about. Mr. Balsis: I can word it. The Chair would like to move that it be resolved by the Board that the Coalition for Tobacco Free Hawaii come to the Board and discuss whether or not they were lobbying, if they have the legal right to be lobbyist and if they were appropriately registered to be lobbyist with the County of Hawai`i. That's it. Mr. Adams: As it relates to this situation that has come to our attention regarding this the development and passage. Mr. Balsis: With regards to the passage of two Bills 135 and 302. Is there a second to that motion? Ms. Kahakalau: Second. Mr. Balsis: It's been moved and seconded to require that there be a resolution that the Board of Ethics will investigate if the Coalition for Tobacco Free Hawai`i was lobbying, are actual lobbyist, are properly registered to be lobbyist with regards to their representations to County Council, County Individuals, County Council members with regards to the passages of Bills 135 and 302. Is there any further discussion on it? I call for a vote. All in favor. Mr. Balsis, Ms. Kahakalau and Mr. Adams (simultaneously): Aye. Mr. Balsis: It's been unanimously passed. Mr. Adams: If I might. We've dismissed 2015-01. Mr. Balsis: Correct. Parts of it. Separately. Mr. Adams: As we move forward, there won't be a requirement necessarily, obviously these are always open hearings and anybody can come who wants to come, but there's no requirement necessarily for the Councilman to come. In fact, there's no requirement for Mr. Revell to come because we are taking this under our advisement. Mr. Balsis: That is correct. It is also noted that if they wish to come forward, they can speak in the beginning of the meetings with regards to certain activities agenda items. Ms. Schoen: Mr. Chair just for the record. Our office will be preparing the order dismissing the petition for the Boards review next time. Otherwise, there is no need for the Petitioner or Respondent to appear. Mr. Balsis: I have a question with regards to timing and this goes to the counselor which will apply to this and further action during this meeting. This is my last meeting. Mr. Henricks will also be his last meeting. If there is not a third person at least a third person coming on to the Board by the April meeting. Can these things be circulated and I can come in and sign them if individual members say it's okay. We've already passed the motion it's more of just reviewing the items that they're all in order as what was meant. Ms. Schoen: I think it's okay for you to sign up until March 31. Otherwise, the Vice Chair is able to sign the orders for the Board. Mr. Balsis: Okay. Ms. Schoen: Is that what you mean? Mr. Balsis: Something like that. First of all you're gonna have the orders and then also have anything else that happens during the remainder of the meeting. I just wanted to bring that up at this time because the future hearing is going to be postponed until there's a full quorum for the Board. So I just wanted to make sure that any actions that we take are don't get delayed inappropriately. Ms. Schoen: No. They won't be. When new members are appointed to the Board, we provide them all of the transcripts and documents were submitted and they're required to review everything in order to participate. Mr. Balsis: Okay. Mr. Adams: Just so I might make sure that we don't miss something. We're gonna have only two of the members will have heard this and actually voted on this petition. When we see the written portion of that at some future date, there's no additional vote that's required just signature by. Ms. Schoen: Correct. Mr. Adams: Thank you. Mr. Balsis: I'd like to thank both of you for coming before us today. Just in passing the two of you are going to be getting together I hope so. We'll be moving on with next agenda item. b. Petition No. 2015-02: Request for informal advisory opinion from a County Officer or Employee, to determine whether there would be any conflict with her practicing law while continuing her employment with the County of Hawaii. (Note: Closed hearing requested.) Mr. Balsis: At this time I'd like to ask the petitioner the reason for a closed hearing. Ms. Bautista: I wasn't sure whether I should go closed or open because I didn't know the difference or who was required to do a closed hearing so I asked Corporation Counsel Yoshimoto and see what he suggested. He said it was okay to do a closed hearing. Mr. Balsis: Okay. Any questions? Mr. Adams: We still need a reason why would you like it to be closed. Mr. Balsis: I have a feeling I know the reason, but I can't say. Ms. Bautista: I had no objection. It was I thought it was easier to do it in a closed hearing. Mr. Henricks: We really prefer it to be open because if there's nothing to hide but some reason that's personal. Ms. Bautista: No. I have no personal reason as to why it should be closed. I thought it would be open. So if you want to invite the people in, I have no problem. Mr. Henricks: Sometimes there's a conflict with their employer something like that they didn't want the employer involved something like that. Thing like that could occur. Sometimes, they're not looking at joining or going into and haven't done yet but don't want to disclose that yet. You know what I'm saying. So for those reasons they would be willing to close it. Anything else we wouldn't. Mr. Adams: Again, our rules require that we have a reason for it being closed. Ms. Bautista: I'm sorry. If you want to bring them in that's fine. Mr. Adams: Just means probably nobody will come in. Just means that it's an open hearing. MS. Bautista: That's fine. Mr. Adams: Note for the record that the closed hearing request was removed by the petitioner. Mr. Balsis: So noted that the request for a closed hearing was withdrawn. This is an open hearing and the petitioner is Rose Bautista. An Immigration Specialist for the County of Hawai`i. For the record, I just want to note that I personally know Rose Bautista. I am not going to recuse myself because I believe that I can be objective in the discussion and making of the decision. Ms. Bautista, please discuss why you wanted to confer with the Board of Ethics. Ms. Bautista: First of all, thank you for allowing me this opportunity. Just a little background, I have been the County Information Specialist since 2001. In that capacity, basically I provide immigration information to the constituents of Hawai`i County. I have nothing to do with being an attorney. However, my profession is that of being an immigration attorney. About thirteen years ago, I decided I'd take a break from practicing law and accepted this position thinking it was gonna last about a year or two. It's been thirteen years and I have two children in college. I mean one in college and the other about to enter and things kind of changed a little bit. So I intend to and I enjoy what I do for the County I've assisted thousands of people. Providing immigration information and additional services I provide being that I have the experience, background and expertise in immigration law. Basically, like a pro bono for the County not representing anyone however providing the information they need and the additional assistance they may require to move their immigration services along. Moving forward to now 2015, like I said I have two children in college. I am hoping that with your permission and blessing that I be allowed to accept immigration cases on the side. In the past, I have been asked many of them from this County which I have rejected or not accepted because of the appearance of impropriety. However, I also get contacted from all over the state, I get contacted from people from different states. The latest one being from Florida because of referrals coming from people whom I've helped or assisted from our County and numerous others. I don't intend to go full practice it's a part-time thing that I want to do. Be selective as to how I can help certain people and at the same time be allowed to earn additional income to what I do with the County at this time. So I'm asking for your permission to be able to basically moonlight representing potential clients outside of our County so it would not posse any appearance of conflict. Mr. Balsis: I have a couple question and what I'm gonna be doing is going back to conceptually going back to some of the previous things that we have done. When someone wanted to have a second job, many times we're looking at a supervisor and the processes are in place to make sure that there would be no conflicts of interest. Do you recall some of those issues? It's not even relevant? What do you have to say Mr. Henricks? Mr. Henricks: First of all we cannot give you permission for anything. So if you come to us, what we say is very narrow. We only interpret the Ethics Code and let me tell you if you read the Ethics Code on Conflicts of Interest it's written very narrowly in only certain areas. It doesn't cover the area of conflict of interest as we know it in society. You understand. It's a very narrow definition of conflict of interest that's all we can relate to at this point. Looking over what your position is, and how many people that come to you and why they come to you they usually come to you because they have problems and want to discuss these problems and you try to help them out and refer them steer them in different ways. That correct? That's sort of a position of trust within the community. That correct. Okay, I'm saying I don't seen any Code problems with conflict of interests per say if you didn't take the job because someone walked into your offices, I need legal help you say I'll take it come see my office on other side if you did that, you probably would be in violation. Ms. Bautista: Right. Mr. Henricks: You see that obvious right. That's the obvious one. Right here's the ones that are not obvious, and they're not in the Code. I'm going to enumerate them so that you might look into them and think about them. By doing this, you realize that you put yourself in a position of access to a pool of clientele that nobody has in this community as immigration attorneys because they're coming in to you for help on various problems right. Many of those problems that you know are legal in the community I know they are. Alright so since you are there, you have access to these people so therefore you have an unfair advantage over other attorneys who practice immigration law because you're seeing the clients first. You're seeing them before their clients, so you're gonna have a lot of sway on what happens to them. Secondly, another thing bothers me is the confidentiality factor not only as an attorney, you have confidentiality in your office. In your office itself, as a public servant all those, your records you have on file are confidential aren't they. Ms. Bautista: I don't keep any records. Mr. Henricks: No, but the files that you kept on people that have come into, you keep their names and problems and things like that. Ms. Bautista: Sure. Mr. Henricks: These are all confidential for all those people that have come and talked to you. Mr. Bautista: That's actually not clarified anywhere, I make it a practice that it is but it's not written anywhere. Not that I'm aware of Mr. Henricks: Don't the people feel that they're walking in to talk to you, that you're keeping these records and you're disseminating them anywhere. The fact is I feel strange to think that if I were a supervisor in that office and I knew that a person, worker for me that had full access to all these records or files of any kind was a practicing private attorney. That would bother me. Alright. I'm not saying it's wrong, it would just bother me to know that. I'm not saying it was you, but to know when someone in my office had that ability. Thirdly, reputation in society, your reputation. Alright. Once you've established your reputation as an immigration worker, a lot of people in this community start relying on you as person to go to, the go to person. Right. You know that from being there a long time, you're the go to person in the community. Right now, if you go out and start practicing privately, you get a new constituencies. You get families that are your own private families. This might cause some degree of problems with the people that consider you a public servant saying no she's a lawyer for that family over there and I don't like that family over there so I can't go to her because I can't feel comfortable because she's that other family's lawyer. You see that? Okay I'm not saying this wrong, I'm just pointing it out to you. The third one is that referrals. How are you going to handle referrals at this point? Now you're no longer just a County person who's sitting in there trying to refer these people to get help around the community. You're a practicing attorney also and I, you say well I won't refer to myself. Every time you make a referral out for any legal purposes, that person that gets it is gonna have an obligation to you for doing that referral. At some point this could become some kind of cronyism involved. I'll give referrals to my friend, my friends will take of me now situations. Therefore this becomes unbalance and I'm pointing these out. I don't say that they're happening, but these are problems that you have to look at. What I suggest you do is you go to your supervisor in your office and ask her if she's comfortable with you being a practicing attorney in immigration law and working in the office. If she has no problems with it, it may be alright. The second thing I would suggest to you is go to the bar association and tell them you're starting to do this. Tell them what your contact with the communities are and be as open as you can to them. Let them make a call on it and see if they both say it's alright. It's alright with me. Okay. Ms. Bautista: Can I respond to that? Mr. Adams: Yes. Ms. Bautista: Absolutely, all comments that you made are very clear appearance of impropriety. That's the reason why I haven't done it all this time and that's why in my petition I said that I would exclude representing anyone from our County. I would not represent anyone from Hawai`i County because precisely because of that appearance. Number two, I have talked to my supervisor Randy Kurohara, he has no problem, and he told me he had no problem. Thirdly, I did contact the bar association explained to them my situation and that the difference between my position with the County and that of my profession. They had no response,they couldn't respond to me so they referred me to my Corporation Counsel. This going back about ten years ago when I first started and went to my Corporation Counsel and at the time Bobby-Jean Leithead wasn't sure as to what to do. She suggested to go before the Ethics Board. Mr. Henricks: So back to original dilemma isn't it. Mr. Adams: Right. So let me ask some questions if I could. Ms. Bautista: Sure. Mr. Adams: As I look at your petition, you just made the comment"You would not represent individuals from Hawai`i County" it's actually individuals of Hawai`i County. I'm assuming that means Hawai`i County residents. Ms. Bautista: Right. Mr. Adams: Who are the folks that come to you as an immigration information specialist? Is it only residents that you're allowed to see or is it anybody that walks in the door that you're allowed to see? Ms. Bautista: I've assisted anyone who has walked in the door. Mr. Adams: Okay. Ms. Bautista: Many and some of those are visitors from different countries. Mr. Adams: Right. Different states potentially or whatever that's right. The fact that you wouldn't necessarily represent anybody that is a Hawai`i County resident doesn't create necessarily a separation from the folks that might come and see you in your current County position. Right. Anybody can come see you. You're saying I'm not going deal with anybody in Hawai`i County, but really it should be anybody that would come see you. Right. I'm not sure how you do that so I would be interested in how you make that separation so in our bend diagram those circles don't touch each other. Right. Ms. Bautista: Right. Mr. Adams: You're a member of the Washington State Bar Association? Ms. Bautista: Correct. Mr. Adams: Not the Hawai`i State Bar, right? But who you went to go talk to was the Hawai`i State Bar type of thing. Ms. Bautista: Correct. Mr. Adams: You're talking about doing immigration law at the federal level obviously. So have you had a conversation with the state with the Hawai`i State Bar about practicing law in Hawai`i even though it's on a federal docket. Whether or not there's any issues with that. Ms. Bautista: No I haven't, but it's my understanding that because it is federal law immigration being federal law that I am permitted to practice in any jurisdiction. Mr. Adams: I think you're right. I think it's probably a good idea to talk to the local bar association too. Okay that's just a suggestion and it has nothing to do with us here necessarily. The reason I say that is because I have been a Virginia lawyer for fourteen years and just became a Hawaii lawyer. I lived in Washington and California. When you're moving around like that and you're not in the jurisdiction that you are a member of that bar. There are as you know, you have to be kind of careful about the kinds of things that you would do when they're associated with being an attorney. Attorney type advice. That gets to my second, my other question. What is it that you as the immigration information specialist do? How is what you do different from dealing with someone who's coming to you with specific issue that deals with them specifically and is dealing with the legal concern. How is that other than they're not paying you money different in terms of giving legal advice? Ms. Bautista: As an immigration specialist from how it's listed in the job description, it's basically just immigration information dissemination. You provide information, you guide them as to and in the past it's basically just been information dissemination. We have forms in the office and we give them the forms that they request. Basically, that's what my office does. Mr. Adams: I heard you say that because you have the training, you kind of do a pro bono kind of thing which actually was worrisome me to me. Ms. Bautista: Right. For example, so they will come with the petition and they'll go how I do this like an affidavit or support. What do I do? Then I guide them okay you get your taxes, you get your letter of employment this is what you do. They'll fill it out and then I will go over it to check to make sure it's filled out completely. I mean that's just in a nutshell but basically I try to separate. I don't, people know that I will not and do not give legal advice. I do not like to use the word in my office. I give information so people understand that I'm not there to give anyone legal advice. Mr. Balsis: I'd like to give an example. This not in support of Ms. Bautista. It's my personal experience. My wife was filling out her petition to become a U.S citizen. She'd already been here and all those things. I did get the form from Ms. Bautista and she looked it over for completeness. She gave no opinion though as to the correctness, so she did not answer that or give legal advice on it. Mr. Adams: So it will be a surprise to the judge, but I'm not sure I completely agree with him that there isn't a part of the Code that is effected here. I know you're surprised. When I look at, I think that when we look at the two elements of the Code that you talked about which was 2-83(b) (1-5). I think I'm okay with that, you're not trying to do anything with that that I'm aware here. You've stated that your work if it corresponds to what you've identified in this document which becomes part of the record. I don't think there's an issue with that. 2-84(a)(2) is where I think we just need to make sure that we are not giving permission, but we are making sure that as we look at your situation that you're not in a problem situation there. So that is no officer or employee shall undertake any official action directly affecting a private undertaking in which the officer or employee engages legal counsel, advise or consult a representative or other agency capacity. I think that comes back to my question about the ability to make sure that there is a wall between your work with anybody that comes into your office. In the County and your work as an attorney for clients in U.S. immigration law situations. I'm not completely comfortable. I'd like to be completely comfortable that there is some type of wall between those two populations. You do understand what I'm saying there? Ms. Bautista: Right. I thought I was making it easy for everyone including myself where I will not represent anyone who comes in my office especially those from Hawai`i County. I've kept it away for thirteen years and that's why I chose not to practice. I didn't want that appearance of impropriety. Mr. Adams: So where do the clients for your law practice come from? Ms. Bautista: Calls I get from Honolulu, Maui, Kauai, Seattle, Florida, Texas and all the other places outside of this County. I'll have enough projects to do. I don't need a full-time job, that's not what I'm looking for. Mr. Balsis: Can I ask a question? That is you've spoken with your present supervisor Randy Kurohara? Ms. Bautista: Yes. Mr. Balsis: You're looking at a wall. What if she establishes that wall working with Randy? Mr. Adams: We've done this before right? We've done this when we had the situation with the... I just want to make sure that not just for Rose's situation but also for any precedence situation that there's an understanding that when we render an opinion that her situation let us assume for the sake of argument that we render an opinion that says we don't see any problem with the Ethics Code for Ms. Bautista situation. Let us just say for the sake of argument. I want to make sure that the reasons we have for doing that are solid for others that might come before us as well. Right. So for me that involves making sure that there is a procedural safe guard not just a personal safe guard. Not just Randy saying it's okay, but that there is essentially it's the procedural safe guard is I don't deal with anybody I see in the County office. It's only folks that I'm receiving calls that are off island that I've never dealt with in the past. Mr. Henricks: I think we have to go back to and I think we kind of run over the top all the time is that the people come before us like you and they think we're giving permission. The only thing we can say from here when making a determination is you're not violating the Ethics Code. There's any other considerations that are wrong by what you're doing we're not talking about those. We cannot touch those. We're only talking about the Ethics Code and we're talking about that very, very narrow part of the Ethics Code. Therefore, there's any complaints that's why I said I'd refer you to your boss and to the bar association. If they have complaints, let them issue their complaints. Ms. Bautista: Right. Mr. Henricks: We can't be involved in those, but we're not quotes giving you the okay. Understand. Ms. Bautista: Okay. I understand. Mr. Balsis: Counsel at this point and time if we're to make any opinion do we do this by motion? It's been a while since I've done this particular. Mr. Yoshimoto: Yes. If you want to issue, because she's asking for an informal advisory opinion right. So you would do it by motion assuming your discussion is over. Mr. Balsis: Any more questions, discussions and interrogations? Mr. Adams: Just to make sure. She is not yet operating as an attorney and so this is really I think under Rule 3 of our rules a declaratory ruling not necessarily an informal advisory opinion which is Rule 4. Mr. Balsis: Counsel? Mr. Adams: I only draw that out to make sure that we understand that she's not asking us to issue an informal advisory opinion on actions that she's already being taking. This is actually a declaratory ruling that says her moving forward is not going given the situation as she has laid it out is not going to be in violation of the Ethics Code. Mr. Yoshimoto: You bring up an interesting question because this is actions right that she hasn't taken yet. She's trying to do it prospectively to try and avoid the issue. I think you know the member Henricks mentioned is kind of interesting because of I don't know that we can, that the Board can render an opinion prospectively without knowing everything that will transpire. The scenario that member Henricks brought up bare some discussion, I don't know. What do members think about further discussion? Ms. Kahakalau: We've had other instances in the past who, where people wanted to be proactive and come and seek our advice prior to engaging in whether it was an election issue. In this case now an employment issue. The Board has definitely looked at those kinds of proactive issues in the past. Mr. Henricks: Alright. I'm going to motion at this time. I move that the Board finds that Ms. Bautista is not violating the Ethics Codes if she does not get her clientele from her employment or from referrals from her employment. That means family members of who that have come in. There cannot be any way connected with your employment. The clients cannot be connected with your employing with the County. You understand that. If that occurs, we can see no violation or possible violations so moved accordingly. Mr. Adams: Second. Ms. Bautista: That's interesting. I had helped someone several years back that's the one that moved to Florida and everything is all done. Four years later he moves to Florida and he made that referral to his friend in Florida to call me. I said no I don't want to represent him, but how does that play out. Mr. Henricks: You do understand when I'm talking about when I make that motion. I'm talking about then nexus of the client. Remove the four years I think the nexus would be broken at that point you understand. Anybody with common sense would see that it was broken, but I'm saying you know what I'm talking about when I say don't go into your client base or their families and use them as your future clients on your business. If you do that then you might be in danger of violating the Code at that point. That's the jest of my motion. Mr. Adams: If I could again 2-84(a)(2) doesn't address your private work, it addresses your official public work. Right. The key here is as I think the judge is laying out in terms of the nexus. The key though is that we're not really looking at your attorney work right. We're looking to make sure that your attorney work does not affect in a manner that would establish conflict of interest according to 2-84 any official action that you might take. Mr. Yoshimoto: To further on the discussion, I think Board members should also look at 2-84(b) and(d)just to make sure there is no other questions related to. Mr. Balsis: Before we get into that it has been moved and seconded. There is a motion that has been seconded rather than trying to repeat it. Ms. Lawrence: Mr. Henricks made a motion to find that she would not in violation of Code of Ethics if the clients were not from or connected to her employment with the County of Hawai`i. Mr. Balsis: I think it was more of a possible, possible rather than not in violation. Possible not in violation. We cannot predict actually a future action of the Board. Mr. Adams: Would not be, but again that doesn't mean that there would not be a situation where someone could decide that they want to bring a potential Ethics violation forward. But it turns out it's in some other area obviously we could hear that and it would not have been something that we considered because it fell outside the boundaries. Mr. Henricks: If we get into specifics, we can't cover specifics if there not actual facts. We make a general and you understand the guidelines. Okay. Mr. Balsis: In further discussion, it is noted that there were various aspects of concern outside of the sphere of the Code of Ethics which were brought forward for Ms. Bautista to take into consideration in her future endeavors. I just wanted to point that out. Is there any further discussion on this motion? Hearing no further discussion I call for a vote. All those in favor of the motion say Aye. Mr. Balsis, Ms. Kahakalau, Mr. Adams: Aye. Ms. Bautista: Thank you. Mr. Henricks: You understand this isn't permission, this is our guidance to you. That's all we give because we're confined to within the Code. If there's other things that you have questions about there's other organizations you'd have to check with. Corporation Counsel is a good place to ask advice from if you have problems. You're a lawyer yourself. Ms. Bautista: Believe me it's been very gray so that's why I've stayed away all this time. Mr. Henricks: There's always gray areas. You could run into problems. Ms. Bautista: That's why I said I don't want to represent anyone from here,just to exclude everyone. I think that's the clearest way. Thank you. If not for my two children, I could stay away from practicing law. Mr. Balsis: Thank you Ms. Bautista. 5. UNFINISHED BUSINESS There is no unfinished business. Motion and Vote: Mr. Balsis moved to go into executive session for the purpose of reviewing executive session minutes of February 11, 2015, to review Confidential Financial Disclosure Forms, and consult with legal counsel, as deemed appropriate at the time. Ms. Kahakalau seconded the motion. All members voted aye. 11:37 a.m. The Board left regular session. 11:53 a.m. The Board returned to regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of February 11, 2015. Motion and Vote: Mr. Balsis moved to approve the executive session minutes of February 11, 2015. Mr. Henricks seconded the motion. 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 there were various financial disclosures for review and some for re-review. Of those, numbers 9, 17, and 18 were referred back for further information. Motion and Vote: Mr. Balsis moved to approve the all other financial disclosure forms. Ms. Kahakalau seconded the motion. All members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF EITHICS OF THE COUNTY OF HAWAI`I Mr. Balsis: There was a rundown of a proposed amendments to the Board of Ethics Rules of Practice and Procedure. I know I've had a chance to take a look at this. I'd liked to make one statement and ask a question if I may. Doug thank you very much for taking the time and effort to put this together. Mr. Adams: Thanks to our Counsel J for allowing me to come in and spend about two and a half hours walking thru this which was terrific. Mr. Balsis: First of all to regards to the general provisions 1.4. I agree to add a candidate for public office in the County of Hawai`i to the Board's jurisdiction. I just wanted to point that out on record. I was looking at the overview issues and the last two. Numbers two and three, add a section regarding education of officers and employees in Ethics Code, add a section regarding education of public in Ethics Code." I need some clarification not for me to make any opinion. Mr. Adams: It came from the thought that we, talking with Counsel about the training, I've talked to previous Counsel about the training that's done for the officers and employees particularly the employees of the County. In terms of Ethics and the involvement and it got me to thinking that we really don't have anything that is included in the Charter, in the Code or in the Rules of Practice and Procedure about educating any of our folks regarding the Code. That was a last minute and I think there needs to be somewhere where we are suggesting or including that as part and parcel of our package when we talk about the Ethics Code as a package. That's why I included it there, because the last two items were literally were the last two items I included. I think it's more for dialogue. I don't know if we would put in to County Charter for sure we wouldn't but we probably wouldn't even put it in the statute or into the ordinance. Something that says oh by the way we're going to require some type of education, but it may be something that we put in the Rules of Practice and Procedure for the Board that we have some type of overview or oversight of the education or training that's done. We'd like to put something there because frankly I'm not aware of what's being done. It maybe that there is this big manual that talks about education. I've not heard about it since I've been here for a couple of years. Mr. Balsis: I have a comment on that. I tend to agree that it may not be something that the future Board would want to put or suggest to go into the Charter or into ordinance. I also don't think it's something that we should have in the Boards procedures because it's not something we can have jurisdiction over. However, we could write letter to whoever is responsible for approving and establishing personnel policies. That it specify the types of education with regards to the Code of Ethics not just the dissemination of manual, but perhaps a class, perhaps periodic review every five years or something like that so that it's in someone's fresh in people's minds. Every year is kind of much I think, but every five years or something along those lines. I think that for us to push that to help eliminate future conflicts of interest would be a good idea. You opened it for discussion that would be my discussion of it. Mr. Balsis: Does anybody have any comments or discussion on these? Mr. Adams: Let me just walk thru. I won't walk thru all of them. I'll make an assumption that by and large you've had the chance to look at them. If you don't or do have some questions then we can bring them up at the next meeting or not. Many of these are cleanup since 1990 kind of things. That's what many of these are. There are a couple of things just to make sure that we are consistent within the rules themselves when we talk about petitions. How they're provided to the Board in the declaratory rulings and the informal advisory opinion hearing piece. The candidate piece is one that is potentially not just a rules of procedure one but also an ordinance change that would expand our jurisdiction as have chatted in the past about. To include candidates at some point the folks that and identifying when that is, is probably something that we will take a look at once the appropriate time to consider somebody candidate versus just a public citizen. The idea that the candidate would be subject to our jurisdiction for the purposes not just the financial disclosure piece, but also the conflict of interest piece. That was expressed during the election season last year by members of this Board. So that there would be a level playing field when you're considering incumbents that may be running again that because they're officers of the County are automatically under the jurisdiction. Therefore, individuals can bring petitions, questioning and identify potential Ethic Code violations. Whereas, individuals that are candidates that were not officers or employees were not subject to our jurisdiction. The idea would be to try and fix that so we'll see where we go moving forward with that. Mr. Balsis: I caught that in my review as well. Mr. Adams: J is there anything that you'd like to comment on regarding any of these provisions? Mr. Yoshimoto: Let us start with the first one 1.4 adding candidate to Boards jurisdiction. That's something that if the Board were to do that which is a good thing concurrently with that we should maybe draft a letter to the Council indicating what Code Amendment the Board would like to see changed. That there be consistent because it's going to take some time for these rules to be go to public hearing and be amended. That can go about the same time and I think that would be good we can have a productive discussion with the Council. Mr. Balsis: I'd just like to make almost an announcement. If there is anything for me to sign I'm told I have until March 31. Just to let you know on the 30th and 31'I will be out of town. Mr. Adams: We wouldn't have anything to sign by then anyways because we would have to have some type of vote. Mr. Balsis: A review of a letter especially if it's a letter going to the Chair. Mr. Adams: Right. Mr. Yoshimoto: Otherwise Mr. Adams we can go thru the rules depending what the Boards pleasure is if you want to go line by line to make sure because before this is ready. You're vetting this now and then you would have the formal amendment right. Mr. Adams: That's correct. Right. This is intended to be the things that we're going to work on within the rules that exist right now. We will give you a full packet of rules that we would then be able to consider. There is one thing that we were going to talk about with staff and that had to do with the email and video conferencing. The idea of including that now as a means of availability, internet, and County website being available and making sure that's all included in the rules since we're now into the internet age. The idea of email and video conference being available as means of transmitting staff opinions. That's actually been done in the past, we just need to make sure we clean that up. Finally the idea of whether or not we want to allow for petitions to be filed electronically where as currently that's not the case. Right now everything is being filed hard copy. That was something that Counsel and I talked about and Counsel was going to still probably be working on whether or not that is something that staff is comfortable with. Whether it actually fits into the County's current means of doing things. Mr. Balsis: I'd like to make comment on that to clear an issue because it's going to be my last time to really make a comment. I have no objection to receiving petitions electronically. I noticed in the comments that it had to do with electronic signatures. Mr. Adams: That's a concern. Mr. Balsis: As long as that can be taken care off. In the financial world, Docu- Sign is something that's being used. I know when I use adobe, they have the place where you can do signing. I don't know if that is sufficient or not. I think Docu-Sign is like a third party so gives more credibility to it. There is even ways to do notaries electronically now as compared to the past. I don't see why we would not allow it as long as there's a methodology to assure that there is a real signature. Mr. Yoshimoto: Right. The concern is that there's no forgery or frivolous complaints that might come forward that wouldn't be verified by an actual signed document. Mr. Adams: I know at the state level, all these things are electronic submissions are the way that legal proceedings are moving nowadays. A couple of other items just to finish up, the second page Rule 6.8. This was something that we were looking at when we had an earlier petition earlier in the year. We know that the audio recording occurs and we know that it's transcribed. Then there is in the next phrasing associated with 6.8. The idea that transcript becomes available, but there's nothing that I identified that it's the transcript that is the official record of the hearing. That was a potential gap that I think we actually saw as potential concern when we were considering the petition back in earlier in the year or the end of last year. I just want to clarify that what we're talking about is that it's the transcript that becomes the official record that folks would then look to get if they wanted to see that as opposed to some audio hearing. The reason we included this. Mr. Balsis: I noticed that and I consider like part of the cleanup aspect that you had mentioned. Mr. Adams: Although we were having the conversation, Counsel brought up the questions whether or not the audio hearing maybe/should be available. That's something that I think we're still looking at whether or not that is indeed the case. Mr. Henricks: Something like that is technically what we're talking about evidentiary rules. It' not rules of conduct or anything like that. Its evidentiary rules. Rules of evidence are best evidence available. When you talk about audio, is it audio versus transcript? I think your audio is better than your transcript. Your transcript is merely paper versus audio you can listen to an inflection of what he says and the way he thinks and say things. I think it's the best evidence at that particular point and if I were sitting here I would ask for the best evidence. Mr. Adams: Here's the deal. As I understand the conversation that occurred, actually I don't think we should have this conversation in open session. I think this conversation for closed session. I move that we go into closed session. Mr. Balsis: I second the motion. There's a motion on the floor to go into closed session to discuss certain aspects of policies and procedures. Discussion? All those in favor. Mr. Balsis, Ms. Kahakalau, and Mr. Adams (simultaneously): Aye. 12:10 p.m. The Board entered closed session. 12:15 p.m. The Board returned to open session. Mr. Adams: The final thing is number 1 under the overview issues. In here there are situations where we have days, the idea would be just to clarify that it's calendar days where we see that unless there some specific reference to working your business which there is maybe in one or two places so that's all that is. Again, everything else was generally to clean up. I would ask is there in addition to the comments that have already been identified, are there any other comments and potential additions that folks would like to see to the rules. Ms. Kahakalau: I just want to support the part of in terms of sections two and three that those are things that we would communicate to the other departments. Whether it's the HR for the hiring of officers and employees. Maybe, I'm not too sure who we would talk to in general in terms of educating the public because I think those are two important things that I don't think that are happening right now. I don't think most people know even that there is a Board of Ethics or what the Kuleana is or any of those for the average citizen. Those are important pieces, but also agree that it might not be something that we need to have in our rules. Mr. Adams: Okay. Thank you. Mr. Balsis: At this time, we've had a good discussion on the rules which will be continued in the future. I believe that it's getting to the point where something will put together and starting to go to public hearings and that's a very good thing. Mr. Balsis: Moving on with the agenda, we have announcements and I do have one announcement here. Mr. Arne Henricks I'd like to present to you your name tag with everybody's signature on the back. I see that I have my name tag with everybody's signature on the back here. Thank you, Thank you. I made an announcement as to when I'm available for signature. I want thank all the support of the Corporation Counsel and other fellow members that are going to continue and not continue for their support. I hope that I've done well, conducting meetings and will move on from there. In terms of the Boards future, I believe that the Board will not meet unless there's a third or more/another person that's appointed. Am I correct? Mr. Yoshimoto: Yes that's correct, but we do have a member of the public that's been appointed subject to Council confirmation next week. Mr. Balsis: Excellent. I'm glad that the Board will continue and good luck with your reorganization whether you move to Chair or stay Vice Chair. Are there any further discussions today? Ms. Kahakalau: I just wanted to thank you and let you know that it will be a hard act to follow, but we will continue to do our best. It's been a pleasure in working with both of you together in this capacity. Mahalo. Mr. Adams: I would concur with those comments and I already had my say about Arne and now let me have my say about Bernard. You have done a terrific job leading this Board during the time that I have been on the Board of Ethics. I don't know about before that, but while I've been here it's been great. I'd like to thank you for your leadership and for your patience with the variety of activities that we have. It's quite a diversity of folks that show up and I don't think there's anyone that can say that they don't get a fair hearing in front of you. That's to be commended on that. 8. ANNOUNCEMENTS Mr. Balsis announced the Board's next meeting on April 8, 2015 at 10:00 a.m. at the Hawai`i County Building at 25 Aupuni Street, County Council Chambers or at another location to be determined. 9. ADJOURNMENT Mr. Balsis adjourned the meeting at 12:20 p.m. Respectfully submitted: INIMEN11.- 11.111 Emily V. Hira a, S11110