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HomeMy WebLinkAbout2015-04-08 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Wednesday, April 8, 2015 10:01 a.m. to 10:55 a.m. Hawai`i County Building Council Chambers 25 Aupuni Street Hilo, Hawai`i 96720 Members and Staff Present: Ku Kahakalau, Vice Chair Douglass Adams, Member Kenneth Goodenow, Member J Yoshimoto, Deputy Corporation Counsel Emily V. Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau called the meeting to order at 10:01 a.m. I would like to welcome our newest member Kenneth Goodenow to our Board. Also, express one more time our appreciation for our former Chair Mr. Balsis and Judge Henricks who did an exemplary job serving here on the Board. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF MARCH 11, 2015. Mr. Goodenow: I just want to say since I wasn't here, I'll vote for it just I guess to say ministerial duty. I really haven't attend, but just wanted to make that clear. Motion and Vote: Ms. Kahakalau moved to approve the minutes. Mr. Adams second the motion. All members voted aye. 4. NEW BUSINESS There is no new business. 5. UNFINISHED BUSINESS a. Petition No. 2015-O1:Resolution authorizing the County of Hawaii Board of Ethics to conduct a hearing and/or investigation into possible misconduct brought by Mariner Revell against the Coalition for Tobacco Free Hawaii, pursuant to Rule 5.2(a) of the Rules of Practice and Procedure of the Board of Ethics. Ms. Kahakalau: Do we have anybody here to speak to this business item? Can you please come up? Ms. Yamauchi: My name is Jessica Yamauchi and I am the executive director for the Coalition For Tobacco Free Hawai`i. We did submit some written materials which I hope you folks were able to receive. I hope you had received them. I just would summarize really quickly and not reiterate everything we did provide. We are a small non-profit organization that works to reduce tobacco use and exposure to second hand smoke throughout our State. We apologize for not registering as lobbyist and that was an oversight on our part. We recognize that it would have been clearer if we had. It was never our intention to break any of the rules here. We do feel that our activities did not exceed the lobbying limits though. We recognize and moving forward we'll be sure to register as lobbyist anytime there's a tobacco bill being considered. I have here also the staff that actually work on the Big Island, which I had listed as possible witnesses if you folks have any questions. Ms. Kahakalau: Do we have any questions? Mr. Adams: Is that the extent of your statement? Ms. Yamauchi: Yes. Unless you didn't get our written materials. Mr. Adams: We did receive it. Essentially, you're agreeing that you should have registered as lobbyist based on the fact that you have paid employees that were engaged in the attempt to influence members of the County Council. Ms. Yamauchi: I think it would have been much cleaner if we had. As I mentioned, I don't think we actually exceeded any of the five (5) hour per month limits at any time. We recognized that would have been better if we had and would do so moving forward. Mr. Adams: As I take a look at what the definition says in 2-91.3. It does identify the more than five (5) hours in any month, that also identifies it as an/or$275.00 in any six (6)month period. Are you also saying that you don't think you spent more $275.00 in any six (6)month period? Ms. Yamauchi: In any six (6) month period that is correct. Towards the end before the final reading of it, we weren't sure as opposition started growing and that's when we registered. We weren't sure if might exceed that limit. Mr. Adams: I did see and we did receive as part of our packets the meetings that you had in 2014, but it was actually hard for me to see. It is relatively substantial number of folks that you had the opportunity to meet with during this process. All of these are prior to you registering? Ms. Yamauchi: There's a few that happened after with the new Council members that were elected. We were registered at that point. The ones in gray were email correspondences that took five (5) or ten(10) minutes at the most. Mr. Adams: At what point did you decide that it was important for you to register? Ms. Yamauchi: It was when the opposition really started growing. In 2013, there was absolutely no opposition to the Bill. Maybe one individual that would come out at each hearing. The Bill passed unanimously and so there wasn't a lot of need. With the E-Cigarette Bill in 2014, there was a bit more opposition but it was still passing smoothly. After the elections is when we lost three (3) Council members. We had Three (3) new Council members and the opposition started playing radio ads in opposition directly to this bill that we knew we had to step up our efforts. Mr. Adams: So you were aware of the requirement. That wasn't the issue is you looking at the requirement was and whether or not you felt that you fell under the requirement in terms of the need to register or not. Ms. Yamauchi: It was brought to our attention in 2014 that we should take a look at it. Sometime in November, when we're looking at it and somebody had mentioned that we should take a look at. We've always been registered at the State level were primarily most of our lobbying efforts do take place. It was an oversight on registering at a local level. Mr. Adams: So you have yet to file a statement of expenditures with the County clerk. You just registered at the end of 2014 or the beginning of 2015. Ms. Yamauchi: The end of 2014. Mr. Adams: Right. So did you file a statement of expenditures as of January 31? Ms. Yamauchi: I believe that we had. I'd have to go back and check with our bookkeeper. Mr. Adams: Ok. That of course would cover that period thru the end of December and July 31 would cover the current period that we're in and that would really be the first period. Ms. Yamauchi: Right. There's currently nothing that we've been working on besides education around the laws that have passed. Mr. Adams: I would be interested in seeing the statement that you did file with the County clerk that encompasses that period thru the end of December last year. You don't happen to have that here with you. Ms. Yamauchi: No I don't, I would have to check with our bookkeeper. I believe the main thing that we filed was my airline ticket coming over in December for the final hearing. It was the only time that I personally did oral testimony and was only here for that hearing specifically. Mr. Adams: Is it your understanding the statement was only for the period from your registration until the end of the year or for the entire period of time from July 1 to December 31. Ms. Yamauchi: I believe it was for December, because that's when we had registered. Mr. Adams; My question would be, I'm not sure that actually our Code is clear on that point that its necessary once you register that you would necessarily have responsibility in a statement that goes to the County clerk for that entire six (6)month period or if it only starts when you register. Looking at this, I'm not seeing that it makes a statement one way or the other on that when it gets into the technical. Mr. Yoshimoto: Member Adams, as you look at subsection D. It states "covers for the period of July 1 through December 31 of the calendar preceding the January 31 reports. On its face, it does state that however like you said it doesn't and there's no language indicating when the trigger date is upon registration rights. That would be left to the Boards' discretion. I could staff check with the clerk's office which is right behind these doors to see. Mr. Adams: If it's available. Mr. Yoshimoto: If it has been filed, it should be readily available. Mr. Adams: That would be great. Ms. Yamauchi: We would be happy to submit an amended report indicating July thru December if that would be helpful. That wouldn't be an issue, we do log internally lobbying hours and things like that. We could provide that. Mr. Adams: I'm not inclined to ask that they necessarily do that, but I think it is something that when we consider our Rules of Practice and Procedures that we take into consideration this particular clarifying that element perhaps. Ms. Kahakalau; Alright. In regards to Petition No. 2015-01 is there anybody ready to do a motion on that then? What is our pleasure here? Mr. Goodenow: Being the newcomer, Madame Chair maybe you could explain to me where we are with the resolution and I am grateful. Thank you for providing what you've provided and it seems clear to me, but again maybe the petitioner has not seen them or I don't know wants to present other evidence right. So where are we at in that process? Mr. Yoshimoto: Okay. In terms of the petitioner, there are other motions on the agenda that actually one (1) more on the next item. We have reviewing draft order dismissing petition by Mariner Revell. Is that the person you're looking at? Mr. Goodenow: Right. She's the same petitioner for this one right. Him. So I'm just wondering I mean this is just authorizing a hearing. Mr. Yoshimoto: Right. This is just an investigation today to determine what we want to do further from this point on right. Mr. Adams: We have essentially three options. One, we can dismiss for a variety of reasons if we decide to. We can decide that we want to move forward into an informal hearing. Or we can decide that we want to go to a formal hearing. Mr. Goodenow: Right. Mr. Adams: As I take a look at this,part of what I wanted to understand is a part of this was. Was there when I look at this in subsection H, the penalty phase of this, the punishment phase if you will. Punitive I guess is the correct phrase is "Any person who willfully fails to file any statement or report required by this section or willfully files a statement or report containing false information or material omission of any fact, who engages in activities prohibited by this section, or fails to provide any information required by this section shall be guilty of a petty misdemeanor." If I'm reading correctly Counsel, that's the phrase that's the section that is important here and I go from there and I take look at willfully. I'm not on the basis of what I'm hearing here and frankly in what I heard from the previous petitioner in 2015-01. That was never indicated to me that willful was the standard that had be met in anything that I've seen. It would be, I am interested in seeing the statement of expenditures. It's apparent to me that this is an oversight not a conscious decision not to register as a lobbyist for the purposes of doing it. Once they decided it was important to register, they in fact did register. Mr. Goodenow: My feeling I'll lay it out here is that I almost feel maybe we should dismiss it though I appreciate the information that you've asked for. My only other concern is the person, petitioner if they're here or they have anything to say or do they have further information like the length of meeting time or anything right that might be relevant. Mr. Adams: The background on this is that. Ms. Kahakalau: I wanted to explain that the original petition was really a petition against Council member Kanuha. Not specifically against Tobacco Free and we at our last meeting decided to do a separate investigation or at least a resolution that would authorize us to conduct the hearing. It wasn't part of the original petition, so in that case the original petitioner, that issue dealt primarily with Mr. Kanuha. Mr. Adams: In our ability to address the Tobacco Free Coalitions efforts in this regard, we couldn't do an investigation at that time we didn't have any information on them. Mr. Goodenow: Based on what I've seen, I feel comfortable but I certainly willing to support the resolution as worded. Thank you for that explanation. Mr. Adams: With the Chair's indulgence, I would move to dismiss the resolution as not meeting the. I would move to dismiss the resolution. It's clear to me that the now lobbyist Tobacco Free Coalition should have registered or potentially should have registered earlier. It was a gray area in terms of the time. We'll take a look at the statement that they did provide to the County clerk. It doesn't appear to me that there was any willful intent, which I think is the important thing. Motion and Vote: Ms. Kahakalau moved to dismiss Petition No. 2015-01. Mr. Goodenow seconded the motion. All members voted aye. b. Petition No. 2015-01: Review draft order dismissing petition by Mariner Revell alleging that County Councilman Dru Kanuha 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". Ms. Kahakalau: Has everyone had an opportunity to review that order dismissing the petition? Is there a motion to approve this order? Mr. Adams: The only discussion that I would have is that again this is a ministerial vote. We actually voted on the dismissal the last time and this is actually just to approve the order. Motion and Vote: Ms. Kahakalau moved to approve the order dismissing the petition by Mariner Revell against Kanuha. Mr. Goodenow seconded the motion. All members voted aye. c. Petition No. 2015-2: Review draft informal advisory opinion regarding the Petition by Rose Bautista on whether there would be any conflict with her practicing law while continuing her employment with the County of Hawaii. Ms. Kahakalau: Has everyone had an opportunity to review that particular petition? Motion and Vote: Ms. Kahakalau moved to approve Petition No. 2015-02 informal advisory opinion. Mr. Goodenow seconded the motion. All members voted aye. Mr. Adams: It's my memory that we do have one petition that's still has been tabled, that we were waiting for a quorum. It's not in today's agenda, so we cannot consider it, but assuming that we'll all be available next meeting. I'd like to at least bring that forward for consideration next meeting. Mr. Yoshimoto; That is the plan. Motion and Vote: Ms. Kahakalau moved to go into executive session for the purpose of reviewing executive session minutes of March 11, 2015, to review Confidential Financial Disclosure Fortns, and to consult with legal counsel, as deemed necessary at the time. Mr. Adams seconded the motion. All members voted aye. 10:22 a.m. The Board left regular session. * * 10:46 a.m. The Board returned to regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of March 11, 2015. Motion and Vote: Ms. Kahakalau moved to approve the executive session minutes of March 11, 2015. Mr. Goodenow 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. Ms. Kahakalau stated that they reviewed six (6) financial disclosure forms. Approved financial disclosure forms numbers 1, 3 and 4. Of those, numbers, 3, 5, 6 were referred back for further information. Motion and Vote: Ms. Kahakalau moved to approve all other financial disclosure forms and be filed for further review as required. Mr. Adams seconded the motion. All members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII Mr. Adams: Let me make a couple of comments. We had the opportunity to review a basic document that at the last meeting of the Board of Ethics I would like that to be available to our new member. There are some questions associated with that we had regarding the availability of petitions online. I think that it turns out that there are petitions that are fillable online. So we will include that as information and part of the Rules of Practice and Procedure when we submit it for the Boards consideration. However the signature element needs to remain with a physical signature. The digital signature capability doesn't yet exist for us to be able to really manage that well. We'll manage that. What was the last thing we were talking about Counsel if you could refresh my memory? I think the idea of establishing some standard for receipt of Ethics training by County personnel, County officials is frankly a good idea. I think that's also something that needs to be placed into the Code not just in the Rules of Practice and Procedure. So as we bring forward there are a couple of other items that are like that. As we bring forward the Rules of Practice and Procedure, we can also take a look at some of these things that we think also need to be reflected in the Code. Ms. Kahakalau: Any other discussion in regards to the Rules of Practice and Procedures? Mr. Goodenow: I just want stated here since we're here that I support the idea of having some type of training. I think a good plan and if it needs to be done by the Code, I hope we continue moving towards that. Thank you. Ms. Kahakalau: I also wanted to thank Mr. Adams for his ongoing work in making amendments and making sure that we follow the best practices in reviewing the Rules and Practices periodically. Mr. Adams: I don't have an announcement but, I do have an item for discussion. I think that we may want to put on the agenda next time elections. Ms. Kahakalau; Yes. We've already spoken with the clerks about that. We are also hoping that we will have a least one or two more members by the next time. If anyone has any names to submit, Emily will be happy to forward those so that we have a full Board that would be great. Mr. Goodenow: One question for Counsel on that. It's really not an agenda item but I think we're alright. As far as the Sunshine Law, members discussing leadership of a Board. There's three (3) of us so just two of us talking is the majority so there's an issue there. When there are more members, I don't know, I mean I guess I can look it up I don't want to put you on the spot. Mr. Yoshimoto: It's in your book Mr. Goodenow. Sunshine Law. Mr. Goodenow: I want to make sure that we all are cognizant of that. Mr. Yoshimoto: I would just encourage that the discussion to be held in open session. Mr. Goodenow: Maybe we should just do that anyway. Why even, regardless we'll take the higher road and not discuss it period. Mr. Adams: I'm not sure what the discussion would be, but I think that from the purposes of understanding quorum. As I understand our Rules of Practice and Procedures we have three (3) of us, the majority of the total Board when we have a vote. Our ability to vote affirmatively on anything is three (3), a requirement of three (3). So at the current time any affirmative vote as I understand it I could be wrong, an affirmative vote requires a unanimous vote of the three of us. Once you have more than three (3) then it's gonna change. At the moment any quorum is three (3) and then any vote that takes place has to be a majority of the Board size not just Board as populated. Mr. Yoshimoto: So I would encourage that we not go any further cause this is not in the announcement section. Madame Chair please make the announcement of the next meeting. 8. ANNOUNCEMENTS Ms. Kahakalau announced the Board's next meeting on May 13, 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 Ms. Kahakalau adjourned the meeting at 10:55 a.m. Motion and Vote: Ms. Kahakalau moved to adjourn the meeting. Mr. Goodenow seconded the motion. All voted aye. Respectfully submitted: Emil ama, ecretary