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HomeMy WebLinkAbout03-15-17 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Wednesday, March 15, 2017 10:12 a.m. to 10:50 a.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai`i 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice -Chair Douglass Adams, Member J Yoshimoto, Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau: Good morning. I'm calling the meeting for the Board of Ethics, County of Hawai`i for March 15, 2017 to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We have a statement from the public....Mr. James Pacheco if you could please come up and...it says here you are testifying in regards to 2017-05. So you can come up...you are Mr. Pacheco right? Mr. Yoshimoto: Madame Chair. He decided not to testify after all. Is that correct Mr. Pacheco? Ms. Kahakalau: So okay no need? Mr. Yoshimoto: Yeah I can advise the Board when we call the matter up to. Ms. Kahakalau: So we don't have any statements from the public? Mr. Yoshimoto: Nope. Ms. Kahakalau: Thank you very much. Mr. Pacheco: Thank you very much for your time. Ms. Kahakalau: Have a good day. So since there's nobody here...we don't really need to introduce ourselves or anything. 1 3. APPROVAL OF THE REGULAR SESSION MINUTES OF FEBRUARY 14, 2017. Ms. Kahakalau: Moving right along to the approval of the regular session minutes of February 14. Mr. Adams: I move approval. Mr. Goodenow: Second. Ms. Kahakalau: Second...do we have any discussion? All in favor say aye. Alright the minutes of February 14 are approved unanimously. Motion and Vote: Mr. Adams moved to approve the minutes. Mr. Goodenow seconded the motion. All members voted aye. 4. NEW BUSINESS Ms. Kahakalau: There is no new business today so we're going right into unfinished business starting with Petition No. 2016-20. 5. UNFINISHED BUSINESS a. Petition No. 2016-20: Review draft order dismissing petition by Edward Underwood alleging that Prosecutor Mitch Roth was in violation of Sections 2-83 (Fair Treatment) and 2-84 (Conflict of Interest) of the Hawai`i County Code of Ethics because he used his position to influence further private interest regarding a contested case hearing. (Participated by telephone) Mr. Adams: Madame Chair. Ms. Kahakalau: Yes. Mr. Adams: I would remind the Chair that I am recused from this particular issue which I think means we don't have a quorum to deal with it. Mr. Goodenow: Right. Ms. Kahakalau: Thank you very much Mr. Adams. You as always correct so in this case... Mr. Adams: Is that in the minutes? Ms. Kahakalau: We will move on to or do.... Mr. Yoshimoto: We need to continue to the next meeting. 2 Ms. Kahakalau: We will continue Petition No. 2016-20 to the next meeting and move on to Petition No. 2017-02. Mr. Yoshimoto: If you want to be formal Madame Chair...you would have a motion to continue and.... Ms. Kahakalau: Oh. I'm sorry. Mr. Adams: I move... 1 can't. Mr. Goodenow: You can't so by operation of law... Mr. Yoshimoto: Actually you're right because we can't even get three votes...right. Ms. Kahakalau: Because we can't get somebody to vote on it yeah. So I'll just make an executive decision that we continue this matter to the next meeting. Thank you....and so we're on Petition No. 2017-02. b. Petition No. 2017-02: Re -review draft informal advisory opinion from a County officer or employee, to determine if there would be a conflict of interest with his position in the Finance Department and his retirement stock holdings with the Bank that the County of Hawai`i has accounts with. (Closed hearing) Mr. Adams: I move that we accept the informal advisory opinion for 2017-02. Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? Mr. Adams: As I recall...we added some things to this? Mr. Yoshimoto: That's correct Mr. Adams. I added in the conclusion of law...I added the language that cited...that stated the petitioner is unable to be disqualified in this matter because one of his official duties as Finance Director requires that he authorizes the deposit of County funds in bank or trust companies designated as depositories. I think we were looking for the specificity there to make sure that it's crystal clear why the Board came to its conclusion. Mr. Adams: Thank you. Ms. Kahakalau: Okay and we're good with that conclusion of law changes...alright any further discussions? Then I call for the question all in favor say aye...any opposed? Motion is carried unanimously. 3 Motion and Vote: Mr. Adams moved to accept the informal advisory opinion. Mr. Goodenow seconded the motion. All members vote aye. c. Petition No. 2017-04: Review draft informal advisory opinion regarding a petition from Naomi O'Dell, to determine compliance with Section 2-83(c)(1) of the Hawaii County Code because her husband is an independent contractor who would like to submit an invitation for bid for Bid No. 3342, Tree Trimming for the Department of Public Works. Ms. Kahakalau: Moving on to Petition No. 2017-04. Mr. Adams: I move acceptance of the informal advisory opinion for Petition No. 2017-04. Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? I call for the question...all in favor say aye...any opposed? So that is also unanimously carried. Motion and Vote: Mr. Adams moved to accept the informal advisory opinion. Mr. Goodenow seconded the motion. All members voted aye. d. Petition No. 2017-05: Review draft informal advisory opinion regarding a petition from Belinda Castillo Hall, to determine whether a proposed provision by HFFA concerning uniforms and helmets would be in violation of Section 2-83(b) of the Hawaii County Code. Mr. Yoshimoto: Ms. Kahakalau: Mr. Goodenow: Mr. Adams: Mr. Goodenow: Madame Chair I have an update. Just prior to the hearing today...actually two things. On March 17, Board members have a letter from James Koshiba regarding this petition basically stating that this matter is not an issue as far as the collective bargaining agreement process is going...and just prior to today's hearing I received a phone call from Joe Kamelamela on behalf of the petitioner indicating that they wish to withdraw the petition on this matter. Thank you very much Counsel...so at this point do...there's no action required then or do we need to do something... We already made.... So for the purposes of discussion. I move acceptance of the informal advisory opinion of 2017-05. Second. 4 Ms. Kahakalau: Okay so...thank you so we can discuss... Mr. Adams: I'm concerned about this that we would be used in this way as...I mean I read the letter you know from HFFA and that's all well and good...and then I went and looked at oh by the way the Maui rules as well which do specify that their...their rules have language in there that talks about ligation...whether it's litigation that is....ongoing...they think is going to happen or has happened. I mean it's a really broad discussion of litigation and when they would decide to step away from handling something. That's not our rules....our rules do give us the opportunity to decide not to issue an opinion for good cause and that's pretty much where that goes to...has nothing to say about you know whether it's litigation or anything. I am...I'm concerned that...that petitioner...so I was prepared to have this kind of conversation with whoever came from HFFA about that. So then the second piece of this though is...I feel like we've been used to some degree by petitioner and that...as a negotiating tool kind of idea. I stand by the analysis here and we made this decision last meeting when it was not moot. This is an acceptance of an opinion that has to do with the decision that was made last meeting. Mr. Goodenow: Right. Mr. Adams: Mr. Goodenow: So I'm inclined to say thank you very much for your phone call but the withdrawal of the petition request is not something that I'm...unless I hear something else then I'd be more than happy to hear something else because I'm not trying to get into a tussle with Corporation Counsel here but...it would be...I'm not excited about saying everything's all good and tossing this out. Thank you Chair. You know too bad Nancy Cook -Lauer left...that would've been a great quote. Just to kind of lay it out here as far as our options...right...we had a vote so basically we would have to move to reconsider that vote and then at that point vote down that and I guess have a vote to dismiss it so we would have kind of these procedural steps that we would have to take...is that correct? Mr. Yoshimoto: That's correct. Mr. Adams: And to be honest with you...I'm not sure I'd be comfortable in doing that without the petitioner present. 5 Mr. Goodenow: Mr. Adams: Mr. Yoshimoto: Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Yeah without anyone present...I mean...I agree with you Doug I mean we already made our decision...I think there's no reason this is just a formality that we do to make sure that the wording matches what we did and it's appropriate to what we did...what on intent was so I'm inclined to just to approve it but that being said we could continue this...I mean I don't know what the...it's clear to me that it's...we made the right call...nothings gonna change the call...it's whether we just say it or not...I don't know...I would be open to continuing if either of you wanted to continue but at this point I feel we should just approve it. Madame Chair if it's okay I'd just like to ask our counsel for his take on this and this puts him in a little bit of a position here but...he's our counsel so. Well as far as the procedural requirements I think Board Vice - Chair Goodenow is correct...we would have to reverse course...go backwards in time right and then reconsider and then decide to do something else because the argument here being made is that...sounds like and I don't have dates provided to us...that's the curious part but it sounds like from the time that the Board issued its decision til today...this issue has become moot because the firefighters union has taken it off the table so to speak so arguable speaking or technically speaking it is moot in terms of their issue that they have before them. Now whether the issue is moot in terms of this Board's decision making process...the valid point has made that the Board has made it's decision based upon the facts presented. So...so what I'm trying to say is...is that it's the Board's call what you want to do because if you go forward with the opinion based upon what you had at the time...that's fine. If you go backwards because...it could go either way because you can make the argument either way. One question to our Corp. Counsel. If I'm not mistaken though if we move to reconsider...it has to be at this meeting. Right. So we can't...we would have to make the motion and then continue the motion I guess if we were gonna go that route. 6 Mr. Yoshimoto: Mr. Adams: Ms. Kahakalau: Right...because sounds like the Board would want to hear additional testimony or something from the petitioner or whomever else right so... Right. Just to drag this out because we don't have anything else to do...and of course that's being facetious for the minutes...when I look at Rule 4...this was presented to us...actually that's probably not accurate...we have a petition here...we are looking at an informal advisory opinion that's in front of us and that's Rule 4. When I go back to Rule 3...declaratory rulings...something that is not seen by the way specifically in code but because it's part of the rules...does exist. The mootness of the issue is irrelevant. So...you know I look at 4.5...which is...really more about entertaining a request and we didn't do that so that really doesn't apply here. And so...when we go to 4.9...we have a thirty day...we've had the final hearing and...we're rendering the opinion in writing. The opinion though was rendered last meeting. You know the only other thing is that...you know 3.6 which is on the declaratory ruling I just would raise you know we may for good cause refuse to issue a declaratory ruling but...so I guess...I just bring those up because those are the rules that I think pertain to this. I am...not really interested in reconsidering. I'm also inclined in voted in favor of passing the informal advisory opinion because it was...you know we based it on the facts that were presented to us...the petition that was presented to us and this is really more of an informal now matter in terms of as Vice -Chair Goodenow said you know looking at just the accurate information of what we ruled basically of what we decided the last time and since there are no discrepancies with this particular informal advisory opinion and our decision from last time. I don't see why we shouldn't approve it and then it gets filed you know there's really...there would be no action based on it but that's just how it is and then it's in there for the record... I think even if you go backwards it would still be there for the record right...it wouldn't be deleted in anyway...so I don't see that it could have an adverse effects one way or another in the outcome is the same...it's going to be part of the record but there's gonna be no action taken because you know on their side now there is no issue anymore. So unless we have any other advice from Counsel or any further discussion...then I'd like to call the question...I'11 you time here J 7 to say anything...no. Alright...then all in favor of approving Petition No. 2017-04 say aye... Mr. Adams: I'm sorry. Ms. Kahakalau: I'm sorry 05. Mr. Yoshimoto: We just need to make clear for the record that the Board acknowledge receipt of the letter from Mr. Koshiba. Mr. Goodenow: I move that we file the related correspondence we received. Mr. Yoshimoto: March 13, 2017 from James Koshiba regarding 2017-05. Mr. Goodenow: My old professor and dear friend. Ms. Kahakalau: Yes...so that is...we will... Mr. Yoshimoto: Receive it. Ms. Kahakalau: Receive it yeah and file that. Mr. Yoshimoto: So the records clear that the Board considered that and considered petitioner's request and in light of that made its decision. Ms. Kahakalau: Yes...and so... Mr. Adams: Second. Ms. Kahakalau: We need to do an official vote on receiving it? No? Mr. Yoshimoto: Yeah. Mr. Adams: Yeah we just had a motion and a second. Ms. Kahakalau: Okay...so all in favor say aye and now do we vote separately now one more time on the petition? Mr. Yoshimoto: Right. There's a pending motion right... Mr. Adams: There's a pending motion with a valid second. Ms. Kahakalau: Yes...and so we've discussed the matter and now all in favor of approving Petition No. 2017-05 say aye...any opposed? So that motion is carried. Motion and Vote: Mr. Goodenow moved to file correspondence. Mr. Adams seconded the motion. All members voted aye. 8 Motion and Vote: Mr. Adams moved to accept the informal advisory opinion. Mr. Goodenow seconded the motion. All members voted aye. Motion and Vote: Mr. Adams moved to go into executive session. Mr. Goodenow seconded the motion. All members voted aye. 10:28 a.m. The Board moved into executive session. 10:44 a.m. The Board returned into regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of February 14, 2017. Ms. Kahakalau: So we're back from executive session where we reviewed the executive session minutes as well as the confidential financial disclosure forms. Do I have a motion? Mr. Adams: I move that we approve the executive session minutes as reviewed February 14, 2017. Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? All in favor say aye. So that motion is passed. Motion and Vote: Mr. Adams moved to approve the executive session minutes. Mr. Goodenow seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Ms. Kahakalau: As far as the confidential financial disclosure forms. We reviewed twenty-one of them and approved twenty of them except for number 12. That will just need another person...Board member in order for it to be approved. It's not going back, it's just held for another Board member. Alright. Mr. Adams: I move filing of said... Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? All in favor say aye. 9 Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure forms. Mr. Goodenow 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: I did some work but it's not enough that we...probably what happened is that when I went in to take a look at some of the other Counties rules of practice and procedure. The difference was pretty astounding so that made me rethink some of the things that I wrote down. Mr. Goodenow: Thank you for your work. Mr. Adams: Yeah...so... Ms. Kahakalau: So thank you very much. 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. Ms. Kahakalau: I believe we have it scheduled at this point for April 10. So if everybody could just double check. Mr. Goodenow: April 10. Mr. Adams: That was a Monday...that was based on the fact that all the budget hearings and stuff were going on but I think what we're talking about is May. Ms. Kahakalau: Oh okay. Mr. Goodenow: Oh April 10...I have court in Waimea at 10 but.... Mr. Adams: Yeah you said you might be able to do it from there or not. Mr. Goodenow: By phone or I might be a few minutes late...right....okay. Mr. Adams: So we're talking about May right... Ms. Kahakalau: More than a few minutes late...oh I see. Mr. Goodenow: Phone from here...I'11 try but there's no guarantee I'll make it on the tenth. 10 Mr. Yoshimoto: You're talking about April? Mr. Goodenow: Yeah. Ms. Kahakalau: Yeah. Mr. Goodenow: But I think that was the only date we could get...you know I'll to move it. Mr. Adams: Okay. Mr. Goodenow: So we're looking at May? Mr. Adams: May now. So right now...normally we would be on May.... Mr. Goodenow: 10`h. Mr. Adams: 9th . Mr. Goodenow: Right. 10`h being the Wednesday but I have Campaign Spending. Mr. Adams: I'm sorry yeah that's right normally it would be on the 10`h Mr. Goodenow: The 9th would work for me...the 10th I am planning to be in Honolulu for the Campaign Spending Commission. Ms. Kahakalau: Okay the 9th works for me as well. Mr. Adams: 9th is fine. Ms. Kahakalau: Then can we schedule Emily please the 9th of May for that meeting and...that's number 8`h. 9. DISCUSSION REGARDING ELECTIONS OF CHAIR AND VICE -CHAIR. Ms. Kahakalau: I'm very excited about this discussion. Mr. Adams: I know. I would move that the election of Ku as Chair for the year 2017. Mr. Goodenow: I'll second. Mr. Adams: Discussion? Ms. Kahakalau: Do we have any discussion...yes. 11 Mr. Adams: Mr. Goodenow: Mr. Adams: Mr. Goodenow: Mr. Adams: Ms. Kahakalau: Mr. Adams: Ms. Kahakalau: Mr. Goodenow: Ms. Kahakalau: It turns out that there is an annual requirement in the...it turns out it's not in ours...it's actually in the code having to do with Boards and Commissions...and it's actually a vote for the Chair but because we have a Vice -Chair position we do that the same time as well. So that's part of why this election is necessitated. You know with your vast knowledge of these rules and procedures... Well I saw it here and I know I'd seen it somewhere so I went back to the Boards and Commissions portion of the code which is where it was at. I think you should be rewarded by being Vice -Chair. We're not voting on Vice -Chair right now. And I am totally open to you know anybody else wanting to take on the leadership. Alright...any further discussion? You're doing a great job. Okay. Do I have to vote in order for it to pass? You're gonna stymie this and move it to the next.... To the next...no. Assuming that Mr. Robinson is also gonna be alright with that decision...I will yield to your superior knowledge of his opinion there and I call for the question. All in favor say aye. Motion and Vote: Mr. Adams nominated Ms. Kahakalau as Chair for 2017. Mr. Goodenow seconded the motion. All members voted aye. Mr. Adams: Ms. Kahakalau: Madame Chair I would move the election of Vice -Chair Goodenow as Vice -Chair for 2017. You're going to have to second that. Okay. I'm gonna second that motion and as far as discussion is concerned...we want to thank you for doing a wonderful job and also you know I think it's a good balance you know with what Mr. Adams does which is finding all these rules and whatever. I think we're nicely balanced here so...any further discussion. Mr. Goodenow: I guess we have to free him up to have the time to do all that so.... 12 Ms. Kahakalau: Yes. Mr. Goodenow: So I accept. Thank you. Ms. Kahakalau: Alright. So all in favor say aye. Alright so that motion is carried unanimously and we now have the same old Chair and Vice -Chair but after an election and thank you for keeping the procedures. You know I think it's really important that if we don't follow rules...how can we expect other people to follow them so thank you a) for pointing it out and b) for making sure that it came on the agenda and that we're in compliance. Mr. Goodenow: Absolutely. Motion and Vote: Mr. Adams nominated Mr. Goodenow as Vice -Chair for 2017. Ms. Kahakalau seconded the motion. All members voted aye. 10. ANNOUNCEMENTS Ms. Kahakalau: The announcements are that the next monthly meeting is going to be scheduled for May 9, 2017 at 10:00 at the Hawai`i County Council Building but we will find out what the specific location is going to be. 11. ADJOURNMENT Ms. Kahakalau adjourned the meeting at 10:50 a.m. Respectfully submitted: 13