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HomeMy WebLinkAbout2015-09-09 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Wednesday, September 9, 2015 10:06 a.m. to 1:25 p.m. Hawai`i County Building Council Chambers 25 Aupuni Street Hilo, Hawai`i 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice Chair Douglass Adams, Member J Yoshimoto, Deputy Corporation Counsel Gary Murai, Deputy Corporation Counsel Emily V. Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau called the meeting to order at 10:06 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We want to welcome our colleagues over in Waimea as well as everybody whose here. My name is Ku Kahakalau and we're going to start this morning with the statements from the public. We're going to switch between Hilo and Waimea. Right now I have three, does that include the Waimea people? No? Okay. So we'll just ask after the first one. So when I call your name, please come to the microphone and state your name and the agenda item that you're speaking to. Please remember to keep your testimony to three minutes per agenda item. So I'd like to call up Tim Michael please. 1) Tim Michael(Hilo) signed up to testify on agenda item 4a,Petition No. 2015-10. Ms. Kahakalau: Aloha. Just make sure your microphone is on. Okay thank you. Mr. Michael: Good morning Madame Chair, Board. I'm speaking on the Dru Kanuha ethics charges. Ms. Kahakalau: Kalamai. Can you first please state your name? Mr. Michael: My name is Tim Michael. I'm a Mountain View resident. During these E-cigarette bills that were going on. We tried, I tried many times over ten to call Mr. Kanuha's office. Never got a call back. I emailed him numerous times. Never got a response at all. He wasn't acting in good faith during this whole period and we were wondering why. The fact that he ends up accepting gifts and a trip from the people that he was representing really bothers me. He was...this is tough. I don't like to be here accusing anybody of anything,but this was not good faith. He wasn't acting on our part. The quote that I read out of the paper said that he was... There was an outcry from his constituents. If there was an outcry from his constituents, where were they when testimony were came up? They were outnumbered, it was outnumbered twenty-five to one opposed to these bills. Yet there was an outcry from his constituents. Where was the outcry? This bill wasn't written ahead of time, this bill was written after the trip. He took a trip, there's something else going on here I'm not sure, I'm not gonna speculate on why you would do something like this. I'm sure it was for something in the future. That's all I really have to say. This was... we never even got to talk to him. There was no equal time for anybody. It was really disheartening, this whole situation. We had a lot of young people that came in that actually stepped up for this and they had their completely dishearten with the political system because of this one single issue. That's really all I have to say on this. Ms. Kahakalau: Thank you very much. Mr. Michael: Thank you. Ms. Kahakalau: Do we have any testimony from Waimea? 2) Alex Achmat(Waimea) signed up to testify on agenda items 4a, Petition No. 2015-11 and 4d, Petition No. 2015-13. Mr. Hirt: Good morning, we currently have one testifier. Mr. Alex Achmat from Hawi representing himself. Speaking on agenda items 2015- 11 and 2015-13. Ms. Kahakalau: Thank you. Go ahead. Mr. Achmat: Hi good morning. Is this on? Good morning. My name is Alex Achmat and I live in Hawi. I came this morning, this will be I think my fourth or fifth ethics committee meeting that I've attended. I attended them primarily because I am a friend and neighbor of Ric Hyland and I wanted to hear in full his ethic, his ethics petition regarding the Mayor's P-card misuse and Ms. Sako's involvement in abetting that misuse. And to date, after 2 three or four months I still have not heard that petition read in its entirety. We've heard miscellaneous specious arguments for lawyers representing Mayor Kenoi and lawyers representing Ms. Sako. We've had some transparent efforts by the committee itself to try and avoid this very controversial issues. But we have not heard Mr. Hyland's actual petition read in full. Over the weekend, Mr. Hyland never in good health suffered a collapse and he is currently bed ridden and unable to attend and speak for himself or be with you and us in this meeting. So I came today for the purpose of asking that you could set aside any issues that Mr. Hyland has brought forth until he can attend in person which we anticipate would be next month. That's my purpose for coming today. Do you have any questions? Ms. Kahakalau: Thank you. No. 3) Kevin Hirsh (Hilo) signed up to testify on agenda item 4a, Petition No. 2015-10. Ms. Kahakalau: Alright. Our next person here in Hilo is Mr. Kevin Hirsh. Aloha. Mr. Hirsh: Aloha. Thank you. My name is Kevin Hirsh. I'm here representing myself on the issue of 2015-10 regarding Dru Kanuha's acceptance of funds. I'd just like to testify on my own behalf that I was a twenty-five year smoker. I've now been tobacco free which is the point of this tobacco free Hawai`i. I have been tobacco free for almost four(4) years now. I feel wonderful about it. I want to trust my government,but when I find out about things like specific politicians receiving monies, contributions and then introducing bills that makes me question the motivation behind those bills. Is it truly about health or is it about money. I think we know from the evidence has already been put forth that the motivations behind these bills was not the health of the State of Hawaii, but the health of specific peoples wallets. I would like that to be exposed and I would also like the previous laws that were passed by Mr. Dru to be reviewed as well to see what motivations possibly were behind those laws also. That's basically all I have to say. Ms. Kahakalau: Alright. Thank you very much. Mr. Hirsh: Thank you. 4) Valentino Miranda (Hilo) signed up to testify on agenda item 4a,Petition No. 2015-10. Ms. Kahakalau: Next we have Valentino Miranda. 3 Mr. Miranda: My name is Valentino Miranda. I'm a resident of Pahoa and I also work at a smoke shop and we was here through all the meetings with this bill that we're I'm speaking on Petition No. 2015-10. I just know that us people, sorry so loud. Us people put people like you know the Councilmen in their positions. They supposed to work for us you know. In this situation, there was way more opposers to this bill then there was supporters. Just that fact alone, this bill shouldn't have been passed. If you guys working in a majority rules kind of situation, cause if it wasn't majority rules Mr. Kanuha probably wouldn't be in this position. Any person on the Council wouldn't be in their position if wasn't for a majority rules vote. I feel like the opposers was way higher than the supporters of this bill and it still got passed. So for me it makes me feel like how we can entrust the people that lead us you know. Bribery is brought throughout all kind situations. I've have a little kids and when they don't listen, I bribe them with candy. They listen you know what I'm saying. And then I was reading on Facebook leading up to this meeting and there was people grumbling about Irie Hawai`i and how we advertise to kids. I myself voice commercials for Irie Hawai`i and not once I aim towards feeding to the kids, not once. You gotta be eighteen to walk into our store, so there's no sales happening to people under eighteen born before nineteen ninety-six. Then we got all this new rules coming up with the whole state being under moving to twenty-one to smoke cigarettes. County of Hawai`i was the first one to move into that. Mr. Dru Kanuha, I believe was the one that brought that up to. And now we not sure what is the age limit anymore. Does the County of Hawai`i still stick to the grandfathered law of ninety-six? Or do we jump with the rest of the state and cut it all off. We don't have, we got customers coming in asking questions that we don't know the answers to. This bill threw away a lot of people from even wanting to try vaporizing, because of the situation where you cannot smoke in public. The reason why they brought up products like this so we could still continue to be smoking but non-smoking at the same time. People that help people to quit like Mr. Kevin twenty-five year smoker and he's four years clean now. He can dive, he hasn't dived for fish in years and now that he's smoking electronic cigarettes or vaporizers he can go down and catch tako. You know what I mean? He can breathe again and I just feel like you know we was brought to the situation with no help from nobody on the Council part. You know like the people spoke out, the people should've won and we lost. You know and it shows that it was thru bribery. So please now look into you guys investigate and do the best job you guys can. Thank you. 4 Ms. Kahakalau: Thank you very much. 5) Sean Anderson (Hilo) signed up to testify on agenda item 4a, Petition No. 2015-10. Ms. Kahakalau: Next Mr. Sean Anderson. Mr. Anderson: Hi. My name is Sean Anderson. I live in Kailua-Kona. I want to start with these bills to begin with. Especially with the Coalition for a Tobacco Free Hawai`i and everyone in the meetings that we went to never once did they introduce themselves as a lobbyist group. Every once. We thought that they were a part of the state government that was trying to help people get off of smoking which we are all for. The fact that they're giving gifts to you know I mean I would love to be able to give somebody you know some money or give them a gift and say"Oh hey, you know will you help me out." I know that is against the rules regardless. Just recently, what the equivalent to the FDA has in Britain came out with a study like the first actual major study that states vaporizing is ninety-five percent at least better than smoking cigarettes and it should be advertised as a sensation device as oppose to what it is being proposed to as of now. And for me, I grew up here as a kid and just recently moved back a couple years ago two and half years ago and I see a lot not necessarily on the big island but all around the state. Of ethics this and somebody says well I'm sorry that I did that. Ethics is like well they apologized you know if I get a DUI or if I break the law or if I break the rules and I get caught and I say hey I'm sorry. You know okay. I still have to pay the price. I think that by ethics the people who are supposed to be holding these people accountable if their saying well they did apologize and they did say sorry. That's not giving a good message to the community. In which one of the speakers did say I mean at every single Council meeting that we attended, we outnumbered the people who opposed this. He said twenty-five to one, I think it was even more than that. I think we had over a thousand signatures in a matter of weeks from people registered voters that said we don't want this. This is helping us and it doesn't just help Kevin who's a non- smoker, but his family is happy because he's not smoking. His brothers and sisters are happy because they're not smoking. You know so it doesn't just reach people who are using vaporizers. Our demographic is anybody from eighteen to ninety I mean we have customers that come that are ninety years old you know. And it's very interesting aspect to you know not be able call it a sensation device when it clearly is working and I even posted...Sorry...a news story that 5 came back in February that literally said the UH Center.. Cancer Center their business model was based on the eighty percent sales tax of tobacco. And so many people have quit in the last couple years that that business model is no longer sufficient. So they wanna tax vaporizing devices. Ms. Kahakalau: Thank you very much. Your time is up. Is there anybody else in Waimea who would like to testify? Hearing? Mr. Hirt: No more testimony in Waimea. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF JULY 8, 2015. Ms. Kahakalau: Our next agenda item is the approval of the regular session minutes of July 8. Mr. Goodenow: I move to approve. Mr. Adams: Second. Ms. Kahakalau: Any discussion in regards to the minutes. Mr. Adams: I do actually, page thirty. Get our staffs attention here. Page thirty of the minutes that we have. Thank you. Page thirty of the minutes that we have, there was a motion by Mr. Goodenow towards the bottom of the page and then I believe the second would've been Mr. Adams not Mr. Goodenow. Ms. Kahakalau: I just had a question there for our...I guess a legal. You know when you have a document and first of all thank you for putting the page numbers down that really helps, but when you have a document of sixty-five pages, you know to have little spelling and little kind of things creeping in here and there is understandable. So I just wanted to know how specific should we be in terms of just small kinds of things or what would be the procedure there please. Mr. Yoshimoto: Madame Chair. I would recommend just making any changes you see fit, so no matter how small or grammatical. I think that's fine because you want the public record to be as accurate as possible yeah. Ms. Kahakalau: And do we need to go over one by one here or is that something that we just give our edited notes if it's like a"the"in front of a 6 "that" little stuff like that. Can we just give those kinds of revisions then to Emily or? Mr. Yoshimoto: You can so long as it's provided for at the next meeting so the public's aware of what changes were made. So yes, so if in other words there's a lot of changes that you know a Board member wants to make, you know we can continue this to the next time and then we can receive those recommended changes and discuss them at the next meeting. Mr. Adams: And then vote on them. Mr. Yoshimoto: And then vote on them. Yeah. So yeah we can continue Madame Chair if that's ...if you have more changes then just a few. Mr. Goodenow: I mean...I mean just as an example here on page thirty-two. I said that"at this time Madame Chair I'd like to move that we the Board reconsider its previous action on Petition 2015-13 that the investigation being deferred" I think it should be"be"right the investigation be deferred. Well because it seems someone reading that it's a motion I thought you know what I would bring that up, but there are these other typos I think like once minuti or minutia how it was spelled or for-go it was forego. I wasn't gonna bring up, but maybe if we do this new procedure I wouldn't mind doing that, then we could just kind of turn it in for the next meeting? I'm open to that. Mr. Adams: So as I understand the procedure, we would need to.... so we could discuss this, we would have to have a motion and a second and then we would continue the motion until the meeting to allow the record to be open for any changes to the record. Mr. Yoshimoto: Yes. Ms. Kahakalau: Do I hear a motion? Mr. Goodenow: I'll move to continue. Ms. Kahakalau: Okay. Mr. Adams: Second. Ms. Kahakalau: So then in terms of discussion, we'll review the minutes and turn them into Emily and then put it on the agenda for approval for the next time and then if in the future we see similar things then we come prepared already with our...just edits and there really and 7 with sixty-five pages if it's you know understandable issue there. And then we'll follow the procedure. Okay. Mr. Yoshimoto: Just need to vote on it. Mr. Adams: We have a vote on... we have a motion to continue. Motion and Vote: Mr. Goodenow moved to continue the approval of the minutes for next meeting. Mr. Adams seconded the motion. All members voted aye. 4. NEW BUSINESS e. Petition No. 2015-14: Initial review of petition alleging that a County Officer or employee is in violation of Section 2-83 (Fair Treatment) of the Code of Ethics because they"were not treated in a courteous, fair and impartial manner" and were given a violation prior to an investigation being done. Mr. Yoshimoto: Madame Chair I have one announcement if I may. Ms. Kahakalau: Yes go ahead. Mr. Yoshimoto: Okay. Madame Chair just prior to today's meeting, we received a phone call regarding Petition 2015-14 requesting that that matter be continued because of the petitioner is not able to be here today. They actually made a request to attend via telephone, but we were not prepared to accommodate that request so they're asking that that matter be continued so if anyone is here to testify to that matter I'm assuming the Board will grant the request to continue. That's up to the Board. Ms. Kahakalau: Okay, so we would need a motion to continue Petition No. 2015- 14 for the next meeting since the petitioner is unable to join us. Mr. Yoshimoto: Yes. I'm just making that... Madame Chair you can take the agenda in regular order. I just wanted to make that out there in case anyone was here for that. Ms. Kahakalau: I think we should make that and if any changes to the agenda make it now, now that we know about it and then like you said people who are here to testify in regards to that petition don't have to stay any longer. Mr. Adams: So Madame Chair, then we need two votes. We need to vote to amend the agenda and then we need to...a vote to continue that item. 8 Mr. Yoshimoto: Actually, you don't need to amend the agenda if you just follow the formatting which is that unless you want to take it out of order right now. Yes it's up to you guys. Ms. Kahakalau: Well, I'm open to taking it out of order if we have a motion for that. Mr. Goodenow: Madame Chair would it be possible just to say if there's no objections to take this out of order. A unanimous vote that might make it quicker, can we do that? Our attorney here? Mr. Adams: Our esteemed Corporation Counsel. Mr. Yoshimoto: That's practically the same effect right, Mr. Goodenow. Basically the public's on notice that you're changing the agenda, the order and the Board agrees to do that and if there's any objections you should listen to them. Ms. Kahakalau: So if there's no objections then we'd like to take Petition No. 2015-14 out of order and we'll hear a motion in regards to the petition. Mr. Adams: I move to continue the motion to next meeting the Petition 2015-14 to the next meeting of the Board of Ethics. Mr. Yoshimoto: Actually, I think one step before that member Adams you need to make the motion to take the item out of order or as Mr. Goodenow...Mr. Goodenow did you want to.... Mr. Goodenow: I think she did say if there's no objections, but I think now do we have a main motion or do we just make a motion to continue? I think we need a main motion. I don't want to make it too complicated, but right we move to approve and then continue or can we just say we move to continue. Mr. Yoshimoto: I think move to continue. Mr. Goodenow: Alright move to continue, so I'll second your motion that's what I heard. Ms. Kahakalau: Are there any discussion in regards to that? Mr. Goodenow: Excuse me. I believe the Department may wish to make a comment. 9 Ms. Kahakalau: It is an initial review right now as it is scheduled. Go ahead please state your name. Mr. Gonzalez: Good morning Chair and members of the Board of Ethics Commission, Brandon Gonzalez, Deputy Director Department of Public Works. Appearing on behalf of the respondents, Department of Public Works and employees Ben Ishii, Kiran Emler and Bob Northrop. At this time, the respondents would like to object to the request for the continuance and have that placed on the record since we have appeared and are ready to proceed with having this matter reviewed and ultimately dismissed. Thank you. Ms. Kahakalau: Thank you. Any further discussion in regards to the motion that's on the floor? Mr. Goodenow: I just say I sympathize with the Department. I mean it's unfortunate, but again I guess our main concern is that we want to make sure that the petitioner's given an opportunity to be heard, so I will support the continuance, but if you have...I think we should in future when we look at our rules, I mean, there should be some method to screen cases. It's not saying that this case is frivolous or not, but we should have some method. Because here they've come and now they're going have to come again, I mean, all I can say is we appreciate the Department and its efforts. Mr. Adams: I would ask Counsel when did we receive the request for the phone tele-conference. Mr. Yoshimoto: This morning. Do you want an exact time? I can give you an exact time if you wanted member Adams. It was around eight- thirty or so. Eight-fifty-eight this morning. Mr. Adams: You had an email not even a phone call? Mr. Yoshimoto: No, there was a phone conversation with staff Mr. Adams: As well after that? Mr. Yoshimoto: Approximately eight-thirtyish in the morning. Ms. Kahakalau: It is an initial review and technically there would be an informal hearing still after the initial review so that's something. Ms. Adams: Potentially, unless we dismiss it. Ms. Kahakalau: If the petition moves on. 10 Mr. Adams: I would also comment that last month we had a similar situation where the petitioners' did not come and we decided to in fact move forward with the petition and ultimately we have an order in front of us to actually verify the dismissal of that petition. So it's not outside the realm of possibility, we have precedent where we have in fact moved forward without the petitioners' here. So, yes I made the motion, but I'm prepared frankly to... given the fact that about an hour and a half before this meeting was going to occur. Was there some... Let me further delve into this. Was there some specific emergency situation that prevented the petitioners from coming and so they were trying at the last minute as a result. They had planned to come? Ms. Kahakalau: One moment please. I think we lost contact with... No they're moving. Unknown gentleman: Spoke from the general seating area about speaker in Waimea who was speaking on this exact issue saying that he had fallen last week and was not able to make it because of the fall last week. He was the first speaker from Waimea who addressed the exactly issue. Mr. Yoshimoto: Okay, member Adams, so I'll read you the email verbatim it says here "I'm sorry for the last minute notice, but Chris and I are on the mainland and cannot make the meeting today. I realize it is too late for a telephone conference. We would like to request a telephone conference be setup for us for the next meeting. Please confirm receipt of this email. Thank you." So they're on the mainland and cannot make the meeting today. Mr. Adams: I appreciate the department coming. We did receive some type of information, however late that it was. This is intended to be an opportunity for the public to bring their concerns to this Board. So I will.... I made the motion, I'm going to vote in favor of the motion to continue. Ms. Kahakalau: So, the email that their on the mainland came today? Is that what you're saying? Mr. Yoshimoto: This morning, yes. Eight-fifty-eight this morning. Ms. Kahakalau: Well that to me doesn't constitute an emergency. That's...Unless the plane whatever something that had to do with the plane that it was supposed to arrive yesterday and whatever. Knowing that you're on the continent is something that you're aware of a day and a week before even when the agenda is made already. 11 Mr. Adams: That's okay we can vote. Ms. Kahakalau: Any other discussion? Mr. Goodenow: No. Ms. Kahakalau: Okay, then I call for the question, all in favor of deferring? Is that the word we use? Mr. Adams: Continuing. Ms. Kahakalau: The meeting for next time say aye. Mr. Adams: Aye. Mr. Goodenow: Aye. Ms. Kahakalau: I didn't say aye so the motion is not carried. Motion and Vote: Mr. Adams moved to continue petition to the next meeting. Mr. Goodenow seconded the motion. Members Adam and Goodenow voted aye. Ms. Kahakalau did not. Mr. Goodenow: Where are we then? Mr. Adams: That means we hear it. Ms. Kahakalau: So we will hear the Petition No. 2015-14 as an initial review. Mr. Yoshimoto: Right. Mr. Adams: Do you want to do it now? Mr. Yoshimoto: It's actually before you right now, yes. Up to you Madame Chair and the Board members. Ms. Kahakalau: Since we did move it forward now, I think we should stick with the petition and I want to apologize for other folks for that move. So if we can have whoever else is here in regards to Petition No. 2015- 14 come to front and basically state your case then you would be responding to the allegations that were made. Mr. Gonzalez: That is correct. Ms. Kahakalau: Thank you. 12 Mr. Gonzalez: Once again Brandon Gonzalez, Deputy Director, Department of Public Works. I trust that you all have received the respondents response dated September 4, 2015, I tried to keep it brief Basically summarizing that the petition claims that a notice of violation was issued without investigation. And this NOV was issued in 2011, four years ago for illegal grading. Basically, if you take a look at the declaration of Kiran Elmer and exhibit number, exhibit letter D attached to that is a photo. In a nutshell, these people were doing work on their property next to a drainage canal that is part of flood hazard area. And when they were excavating, they dumped the material into the drainage canal and it's not just small rocks and dirt, its boulders. These boulders, if there's high velocity water coming down there, can roll and affect properties downstream. If they don't roll away, it still alters the course of the waterway. So an NOV was issued. Now, the petitioners were told at least twice, I count at least the three times of the steps engineering took to research the issues before it issued the NOV on May 26. So were are a little perplexed on why they still filed this petition saying there was no investigation that occurred. And if there's any questions, I'll be happy to answer them now. But I think it speaks for itself, the department and its employees conducted its investigation before it issued the NOV which told them to stop the work. Stop putting material in the drainage way. It had two benefits, it immediately addressed the condition of the danger to the drainage way and number two it stopped petitioners from doing any further work that they might have to might costed more money for them to fix further down the road instead of letting it continue and continue. So in looking at it, we were actually being fair to them as well. I mean it's hard to deliver bad news like that, stop building you house, stop improving your house. But with our enforcement branch, that is one of their duties. So I'm free to answer questions at this point. Ms. Kahakalau: Do we any questions? Mr. Adams: I do Mr. Gonzalez. First, thanks for coming today. The issue as I understand it in the petition really is that 2-83 "All persons being treated in a courteous, fair, and impartial manner" and then I think that the point that their trying...the petitioners apparently were trying to make is that because they were given notice of violation before an investigation that that would not be something that was impartial is what it think their argument would be. So let me just ask you a couple of questions related to your letter, September 4. Item seven in the statement of facts, Mr. Emler contacted the 13 contact listed on the pool building permit application. Is that standard procedure for the department to contact if they don't have all the information on file to go to the contact? Is that standard procedure? Mr. Gonzalez: Yes it is. Mr. Adams: And then on item eleven, it says that Mr. Emler prepared a notice of violation form with basic information of the nature of the violation in the event that it would be necessary to issue the property before actually meeting with the petitioner at the petitioner's home which turned out to be the site of the potential violation. Is that standard procedure for the department to prepare a notice of violation forms and bring them with them? They've done their investigation through the paperwork and whatever phone calls or email activities have taken place, but before they've actually gone and seen the site. Is it standard procedure for them to purveyor a notice of violation forms? Mr. Gonzalez: Yes it is. Mr. Adams: I would also note that you make the comment that it's been four years since this notice of violation was provided to them and that the petitioners were finally deciding to file this allegations. I would just note having gone through.... I'd be interested in the Counsel and our Counsel's comments on this if any. I don't believe we have a statute of limitations on allegations. I didn't see it in any of our items, so I didn't see it in our rules and I didn't see it in our code. Mr. Yoshimoto: I can check on that while we continue the discussion. Mr. Adams: Okay great. Those are the questions that I had. Thank you. Ms. Kahakalau: Any other questions? Okay. As this is an initial review, do I hear a motion to either take it to an informal hearing or to dismiss? Mr. Adams: Madame Chair I would move to dismiss the petition. The petition is intended to indicate that because there was lack of an investigation. Because it was a violation given before there was an investigation that that meant that the petitioners were treated in a manner that was not courteous, fair, and impartial in accordance with 2-83. And based on the information that have and the testimony that we've heard, I would move that we dismiss the petition. 14 Ms. Kahakalau: Do I hear a second? Mr. Goodenow: We have a second. Oh to dismiss. Yes I'll second. I forgot it. Ms. Kahakalau: Any discussion in regards to the motion to dismiss Petition No. 2015-14? Mr. Goodenow: Well...Again even though this to me, I'm in favor of dismissing. I kind of feel that the member of the public should have the opportunity to come. But I agree in the petition itself for exactly the reasons Mr. Adams stated about the fair, courteous, and impartial manner and then they're own comments as to what constitutes that. I think I will vote to dismiss. Ms. Kahakalau: Any further discussion? Mr. Yoshimoto: Madame Chair real quick on member Adams inquiry as to the statutes of limitations. My recollection is it is six years. I don't have the exact cite before me, but I don't think it's dispositive to the discussion today. Just for the Boards information, 2-86 says six years. Ms. Kahakalau: Okay. Thank you very much. Motion and Vote: Mr. Adams moved to dismiss the petition. Mr. Goodenow seconded the motion. All members voted aye. Ms. Kahakalau: Alright moving back to the beginning of our new business. a. Petition No. 2015-10: Initial review of petition alleging that a County Officer or employee is in violation of Sections 2-83 (Fair Treatment), 2-84 (Conflict of Interest), 2-91.3 (Lobbyist Registration), and 2-91.4 (Gifts) of the Code of Ethics because he was influenced and accepted gifts by an unregistered lobbyist organization. Ms. Kahakalau: Can we please have all parties come to the microphone. Is the question in regards to an open or closed hearing applicable in this case? Mr. Yoshimoto: Yes. Ms. Kahakalau: Mr. Kanuha I guess would want to ask you first if you would like an open or closed hearing in this matter. Mr. Kanuha: Open is fine. 15 Ms. Kahakalau: Thank you very much. Alright for our petitioner could you please provide us with a brief opening statement? Mr. Revell: My name is Mariner Revell from Hilo, Hawai`i. Nice to see you guys again. The reason why I've brought this upon the Ethics Board for a second time is the first time we were here, we didn't know of the gifts situation. The gift situation came up when the gift disclosure was made earlier this year. I think it was in June, I could be mistaken. You know, I still really feel that I wasn't treated fairly and neither were my colleagues or the rest of the public that were involved in this issue and I want justice. The last time I was seeking justice, this time I demand it. Whether it's from the Board, the Attorney General's office and anybody else. I spoke with Attorney General's office and they told me to go to the Ethics Board, make a complaint again and have them get us involved and we'll take care of the rest. And they said it's better than if I went directly to them and requested it. It looks more official. So I'm here again, you know requesting that justice be served to the public and not only myself. Ms. Kahakalau: Thank you. Mr. Kanuha can you respond please to the allegations. Mr. Kanuha: Good morning Chair, Vice-Chair and member Adams. I did submit a letter responding to the petition and hopefully you've received it and got a chance to look it over. Basically, you know I'm gonna just read a few sentences within the letter and we can go into detail if you have any questions afterwards. But... "The petition contains assumptions and conclusions that are simply not true. At no time was I "heavily influenced by the lobbyist group The (sic) Coalition For a Tobacco Free Hawai`i resulting in Administrative Actions (sic) the creation and passing of Bill 135 (sic) Ordinance 13 124 & Bill 32 (sic) Ordinance 15 11." What I was heavily influenced by and which is pretty hard to hear as some of these testifiers saying that the community wasn't in favor of these bills because they're the ones that told me that this that they were having problems with tobacco and how easily accessible it was to kids. And for e-cigarettes that when they're having dinner at restaurants or within work places, that they didn't want these things to be around them. They felt a certain kind of violation of their air space. They're the ones that created this bill, not the Coalition for Tobacco Free Hawai`i and nobody else. It was my constituents and myself that made this bill. So again, "What I was 16 heavily influenced by were numerous concerns brought to me by my Kona constituents expressing concern about e-cigarettes and the accessibility of this product to minor children in our community." "What is important to note is at the time the Coalition wished to present me with the award", and for me to explain to them what I was doing in Hawai`i County to benefit the healthy, healthy community to foster healthy community was that our bill had already been formulated and drafted and was awaiting introduction to the Hawai`i County Council. The first bill that was passed was in 2013 I think it was. You know before I even did that bill, we started the second bill. That was when I first wanted to start doing these bills to help creating healthy lifestyles. So the bill that was to raise the age to twenty-one, that was passed in 2013. Again, the constituent that called my office about the second bill that was passed in 2014 I think it was. That bill was started before the raise the age to twenty-one which was passed in 2013. You know these bills take months to draft. When you go through the whole process of vetting these bills, through the different departments, you gotta vet them through the Police Department, I had to vet them through the Attorney General's office to see if us as a County could actually make these bills. They raised the age to twenty-one, that was passed by State so that's going to be something that we as a County will have to look to changing the laws to make it compatible with the State law. So again these bills take very long time to draft and vet through all the different departments. And you know I'm sorry the petitioner feels his business has been harmed by the Hawai`i County legislation banning the sale of e-cigarettes to minor children and putting them on the same lines as our already tobacco free laws here in Hawai`i County. Please know the decision to introduce this bill was made after receiving the groundswell of constituent concern. The bills were openly debated and the opportunity for public input was afforded pursuant to our laws. In the end, the Council passed this law, and the Mayor signed it. Again it was passed by the majority of the Council. The receipt of$536 of travel expense for me and for my staff member was hardly the reason this bill was presented to the Council and the public and to the Council and public for scrutiny and passage. "As discussed above, the receipt of air travel expenses occurred after the bill had already been formulated by my 17 office." So again thank you for the opportunity to respond this petition and I will answer any questions that you may have. Ms. Kahakalau: Thank you. Do we have any questions? Mr. Adams: Of course I do. Thanks to both of you for being here today. If I could ask Chair Kanuha, the leadership award could you give me a little more detail. What was the leadership award? Mr. Kanuha: So they gave me a Legislator of the Year you know. They presented me a Legislator of the Year and at that stakeholders meeting I got the opportunity to talk in front of pretty much a room full of stakeholders and Department of Health, a lot of health service industry professionals. And my reason for being there was to explain what we were doing in pursuit of healthy communities in Hawai`i County. And they wanted me to explain the bills that we were passing, the Mayor's initiatives, healthy initiatives here in Hawai`i County and what we were trying to do to pursue a healthier community and that was the reason for me being there. Mr. Adams: Thank you. In your letter to the Board, you specifically talked to the various sections of the County Code and let me just bring us to 2-91.4 which is the gift provision. In the gift provision itself, I'll put it on the record. "No officer or employee shall solicit, accept, or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing, or promise or in any other form, under circumstances in which it can be reasonably be inferred that the gift is intended to influence the officer or employee in the performance of the officer's or employee's official duties or is intended as a reward for any official action on the officer's or employee's part." I'm troubled by the acceptance of the travel when I take a look at the phrasing in 2- 91.4. Specifically, I'm troubled because I think you've identified that at face value the formulation of the bill was accomplished prior to the identification and the offer of attending to receive the award of Legislator of the Year and that's great, that's facts. But when we take a look at this section, it's not the facts of the formulation that are relevant. Right. It's the perception that's relevant and so the reason I'm troubled is because I think that it's reasonable to infer that the gift of the travel could have been intended to influence. It doesn't matter whether it did or didn't, it 18 has to do about the perception of that. I'd be interested in hearing your comments on that. Mr. Kanuha: Well again I explained that... Ms. Kahakalau: Could you please turn on your microphone. Mr. Kanuha: On. Yes it's on. The light goes on and off. Ms. Kahakalau: The light. Mr. Kanuha: You know I explained previously that at no point of me going to that meeting were they trying to influence me on making these bills. Again, the bills were already created prior to me going to this meeting. So I don't know how I can better explain the perception that. It's hard to explain perception when there's perception out there. Mr. Adams: Perception's the business that we're in on this Board though. You would....I mean you especially would understand that. When you say that the bill was formulated, I want to make sure I'm clear on this. It had not yet, it may have been on somebody's computer, maybe on their hard drive in final form but it had not yet been presented to the Board or any Committees or Board. Is that right? Mr. Kanuha: No. Mr. Adams: That's not right? Mr. Kanuha: It didn't show up in front of the County Council until a specific time, I don't know exactly what date that was. Mr. Adams: Okay. I've already said that so...the other question that I have for Mr. Revell is in your petition you...the petition itself addresses Chair Kanuha but also the Coalition for Tobacco Free Hawai`i as that correct? Mr. Revell: Absolutely. Mr. Adams: Do we have anyone here from Tobacco Free Hawai`i? As I take a look, when I take a look at your petition, it appears to me that the things that...the items that you are addressing are items that we covered in our previous petition with you. Would you care to disabuse me of that notion, is there something in addition that you 19 think... We've already covered them, we brought them here and we talked to them. Mr. Revell: I was just reiterating on a the fact that I feel I was wronged and if you read the code on each section that I'm claiming it pertains to me. It does, maybe the last time you guys didn't see it that way, but it does pertain to me. I was treated unfairly, I didn't get a chance to speak with Mr. Kanuha and you know he says well you know the constituents wanted this, they really wanted this. Well I have myself over seven hundred forty-eight reasons why people didn't want this. This is what I collected myself not including anybody else, any other shop, any other individual. You know he refused to talk to us. The man was not cordial towards my colleagues in Kona when they shook everybody's hand on the County Council Board saying you guys did a good job whether you win, lose or draw. Mr. Kanuha didn't even shake their hand and I can attest to that because Tim is right here. Tim was in Kona and he said he didn't even want to shake our hand man you know and I was like really. I wasn't there, I was in Hilo and you know it just adds insult to injury were you know Mr. Kanuha talks about he's gonna use the kids the clutch. I did this for the kids. You know and hey I never once sold an e-cig to a child. I'm here for the same reason that he claims he's here for, for health. You know I see it every day where people using e-cigs, their weaning themselves off of tobacco and they're able to do all this other things. My question to him is...What medical professional did you guys consult with to vilify the e-cigs besides you know research on Google. And I know we're not here for that, but the fact is that everything I say in my petition is true and if you read down the definitions of each one, it pertains to me and I really felt that finding out this information here that he accepted a gift. It just really added insult to injury and put salt on the wound man. You know it's like we did everything we could to try and fight this bill and you know besides the fact that it harmed my business or anybody else's business that sells e-cigs. You know it took away peoples' rights that are trying to get, you know I mean out in the park and if I want to use an e-cig, I'm trying to stay off cigarettes. You know it takes away my right to do that and what I really want to do here is you know is right that wrong. I want a re-vote on that bill excluding Mr. Kanuha because he accepted a gift. I would like an investigation from the Attorney General's office to see if there's 20 any other gifts or anything else that influenced him on similar bills whether it be in the past, the future or the present. And you know I just want justice, you know I'm a member of the public and I feel like I was really wronged by somebody that has you know special powers. Mr. Adams: Thank you. Mr. Goodenow: A couple of things now. I mean we're talking about fair treatment, we're talking about gifts and lobbyist registration. Okay. As far as the fair treatment, we've already dealt with that. I mean in the previous...you know about not getting heard and all that. So I don't think we should go there, though I also note that that section does specifically kind of have an exception for Council members introducing bills, making statements, taking action in exercise of the legislative functions. I mean, but let's put that aside so the remaining two issues are the gifts and the lobbyist registration. Now as far as the lobbyist registration, you know I'm actually more concerned about that. I don't know if Tobacco Free Hawai`i included this as a lobbyist expense when calculating whether or not, but that's an issue for them. Maybe a petition should be brought against them. That's not here. Right. That's concerning to me and I'm curious about that. I don't have the numbers in front of me from the last time. But as far as Mr. Kanuha and gifts, member Adams read the section on gifts. But I think you have to read that in connection with the next section the reporting of gifts. And it says every officer and employee shall file a gift disclosure statement with the County Board of Ethics on June 30 of each year if the following conditions are met. And one of those conditions is the source of the gift or gifts have interest that may be affected by official action or lack of action by the officer or employee. Now that implies to me that there is a situation, I mean whether it's intended to be influenced or not. Right. It's taking into account in that section and so there obviously situations where you're gonna have a lobbyist give a gift and sure they want you to vote on their thing, but as long as it's recorded it seems that's alright. Unless you blatantly say yeah I did this cause you gave me money right I mean. That's not the case here and I'd like to say that when you have a situation. Okay. Accepting this award, now I'd suppose you could construed that to mean that it is a reward for his official action. He's now Legislator of the Year and that's a reward, but I 21 think it's not a reasonable inference I mean. Organizations. They have to pick someone from Oahu so that will get the award now because neighbor islanders won't be able to except an air ticket to accept an award. I mean it's a fine balance, but I'm very concerned if we want to go to an informal hearing or something I'm open to that. But I'm skeptical at this point. Mr. Adams: If I might just respond to my colleague. I don't think I could have it both ways. Right. I don't think I can say that he receives an award and that that's a reward for official action. If at the same time I'm saying he hasn't yet taken official action and so he's accepted this gift. I don't get to do it both ways. And so I'm not saying that as a result the Legislator of Year was a reward. I am going to say though that just because somethings been disclosed and appropriately by an officer or employee of the County does not mean that disclosure doesn't absolves him any of the issues associated with the gift section. Just because you've identified it, doesn't mean that it makes that gift okay. And so again I continue to...I go back to it's the phrase is can reasonable be inferred that the gift is intended to influence. It doesn't say did influence, it didn't say it's a fact that this that there was a connection. This particular section is out in the outer edges of ethics because it's specifically was put in here by County Council to say we want our officers in particular but officers and employees to be above reproach. That's what to me this means. So if I might, I would move then I will need some help this but I would move that we take Petition 2015-10 and move to an informal proceeding on that petition. Ms. Kahakalau: Do we have a second? Mr. Goodenow: For purposes of discussion I'll second. Ms. Kahakalau: In regards to discussion, I just wanted to clarify that the gift that you're talking about the $536 of travel expense. That's the specific gift that you're talking about. Mr. Revell: And any other thing that may have been disclosed or not disclosed. Ms. Kahakalau: But at this point that's as far as evidence of a gift that would be... 22 Mr. Revell: Yeah you know. I don't know if this you know the award itself is that a gift? Engraved trophy? You know that look like it's over a hundred dollars to me, but I could be wrong. Ms. Kahakalau: Thank you and then Mr. Kanuha did you file a gift disclosure for this amount? Mr. Kanuha: Yes. Ms. Kahakalau: Having received awards by myself as well, I have to tell you getting up early in the morning to catch a plane to go to Honolulu, to get a piece of something that's going to be sitting somewhere and nobody will ever talk about it or look at it again. I personally have a hard time looking at that as a gift per say because it takes more work on my part of flying in, flying out, catching this, going there takes me away from my real job, takes me away from my family. And personally as I said, I have a whole bunch of those and don't know what to do with them. I don't look at that as anything of monetary value. In that way of flying there and flying back etc. That's just a personally opinion. I do understand the perception part of it and that is something that we have to be very cognoscente of and for sure in the future you know look as a something that like while it would not been an intentional thing if the perception is gonna...if there's a possibility of the perception being there of this being a gift rather than another day away from my real job and real Kuleana etc. then I will then have to catch up with on the weekend etc. I think that's something that is an important learning experience, but as I said personally having done this I really have a difficult time looking at this when there's no gain in the end. It's not like he got the five hundred thirty-six dollars is that those were the expenses that were needed to cover the travel. Mr. Revell: Can I reply to that comment? Ms. Kahakalau: Go ahead. Mr. Revell: This is my personal feeling. You know I appreciate your comments on your trophies and you know there useless trinkets is what they are. My and this is you know...I'm not speaking on behalf of the public. This is my personal opinion, but when you join a gang and you have a gang backing you up. Now you have the support of those members and that gang or that crew, that club 23 or non-profit organization. You also get the approval from all their friends, the people that who do business, who work with these non- profit organizations. Now as a political person that has future aspirations, that's a good move. Sure five hundred dollars is nothing,but for personal gain it is something and I feel that you know that's my personal feeling that this is just so unfair because we had the American heart or lung association in here making comments. And the only reason why they're here is because Tobacco Free Hawai`i and them are in the same coffee clutch. And you know this is just unfairness on you know the public because now we're fighting against these corporations, these companies that are funded by big pharmaceuticals companies that don't want e-cigs. They don't want the little guys around here helping people and then the whole health issue can go out the window. The fact is that we're the public, we're wronged. I was wronged as a member of the public and if we're going off of the Ethics Code lets go off of the Ethics Code. And you know that's what I'm here for. Ms. Kahakalau: Thank you. Any further discussion in regards to this. So the motion is on the floor to move Petition No. 2015-10 to an informal hearing. Mr. Goodenow: One comment. You know, I believe there's probably some case law regarding the applicability of the code provisions similar language from other Counties or the State Ethics Code. I'm not I'm wondering if Corporation Counsel... the only reason I'm really inclined to vote no, but I might vote yes because I mean Mr. Adams you read it there, that's what it sounds like. I'm interested in exploring that further, though my gut is telling me this is not a gift kind of quid pro quo situation right. It's exactly as you say, you gotta... It's more trouble then maybe its worth, but I'm willing to vote yes just so we can move on this issue. I don't know that's fair to you Mr. Kanuha being kind of our...as a reason. But that's the only reason I'm voting yes because I don't think there's anything that's been done wrong by this trip except maybe that Tobacco Free Hawai`i didn't report it, we don't know that. So I'm voting yes, but with strong reservations I guess is what I'm saying. Motion and Vote: Mr. Adams moved to take Petition No. 2015-10 and move it into an informal hearing. Only members Adams and Goodenow voted aye. 24 Ms. Kahakalau: I'm not voting aye, so the motion is not carried and the petition is dismissed. Mr. Yoshimoto: Hold on one second. Okay, so what we voted on was a motion to set an informal hearing right so that motion is defeated because we need an entire majority to have any Board action be valid right. Okay. So now we're back to Mr. Adam did you want...I don't want to...? Mr. Adams: It would be my....I think we have to make...have a positive move to do anything. Mr. Yoshimoto: Correct. Mr. Adams: And so we have to either move it or we have to continue it or we have to dismiss it. And we have to do that with a majority of the Board and in this case that's all three of us. Mr. Yoshimoto: That's correct. So now you're still back to the petition as it stood before the motion for informal hearing. It's open for further discussion. Mr. Goodenow: Madame Chair. I move that we continue this matter to the next meeting of the Board of Ethics and request for Corporation Counsel to give us a legal opinion regarding the scope and applicability of the relevant County Code Sections. Motion and Vote: Mr. Goodenow moved to continue the matter to the next meeting. Mr. Adams seconded the motion. All members voted aye. Ms. Kahakalau: If we can get the opinion next time and put it on the agenda again as an initial review? A continuance of the initial review and with that information. Thank you. b. Petition No. 2015-11: Request for informal advisory opinion from a County Officer or employee, to determine whether there would be any conflict of interest with his employment as an electrical inspector and performing electrical work for friends and family. [Closed hearing requested] Ms. Kahakalau: This is a closed hearing request. 25 Mr. Yoshimoto: Madame Chair I would suggest that we go into a brief recess, we can clear the room except for the petitioner. Ms. Kahakalau: Yes, so the Board is going to go into a brief recess and everybody except for the petitioner who we would like to ask to come up front. If you could please clear the room. Thank you. 11:14 a.m. The Board took a brief recess. * * * * 11:22 a.m. The Board returned from recess. Mr. Yoshimoto: Madame Chair per the rules, the Board needs to basically...there should be a required, affirmative vote at an open meeting of the Board. The reason for such closed session shall be publically announced and the vote of each member shall be recorded and entered into the record. Basically, you have to say why you're going to go to the close session and that everyone votes on it whether to go into or not. Ms. Kahakalau: Okay. Petition No. 2015-11 it was requested that closed hearing will be held. All in favor of a closed hearing say aye. Mr. Yoshimoto: Actually you want to disclose the reasons, there was a request for it. Mr. Adams: That's what she just said. Mr. Yoshimoto: I'm sorry. Mr. Goodenow: She said it was a request. Ms. Kahakalau: There was a request for a closed hearing. It doesn't say the reason for the request just that there was a request. Mr. Yoshimoto: Okay and any discussion? Ms. Kahakalau: Any discussion in regards to the request for closed hearing? All in favor say aye. All members voted aye. 26 11:25 a.m. The Board went into closed session. Dis-connected from Waimea. 11:46 a.m. The Board returned from closed session. Re-established connection to Waimea. c. Petition No. 2015-12: Request for informal advisory opinion from a Water Board member to determine whether there would be any conflict of interests to her running for County Council while continuing to serve on the Board. [Closed hearing requested] 11:50 a.m. The Board went into closed session. Dis-connected from Waimea. 12:05 p.m. The Board returned from closed session. Re-established connection to Waimea. d. Petition No. 2015-13: Request for informal advisory opinion from a County Officer or employee, to determine whether there would be any conflict of interests by him accepting travel, room and boarding to attend the event he will be a guest speaker for. Ms. Kahakalau: If the petitioner can please come forward and state your case please. Mr. Ilagan: Good afternoon Madame Chair and Commission members. My name is Greggor Ilagan, I'm a Council member for District four. And today I ask for your opinion if I am allowed to accept a gift of travel, room and boarding to attend an event in Ithaca, New York at Cornell University to be a guest speaker. As you know there has been a lot public spotlight in the Ethics Commission and the last thing I'm looking for is somebody to file and ethics complaint for me. So I'm here in my capacity as a Council member requesting your opinion...sorry there needs to be some sort of...I just wanted to give you the details of what this trip consist of and also what they're willing to offer me regarding travels, expense and also an honorarium fee. And I guess the best thing to do is leave it up for your questions and answers and then go from there. Thank you. Ms. Kahakalau: Thank you very much. I do appreciate your coming and putting that out there being proactive about it and I think at this point almost like setting a precedent of how we can handle future issues like that and having an opinion will help others in the future so thank you for that. 27