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HomeMy WebLinkAbout08-07-17 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Monday, August 7, 2017 11:00 a.m. to 12:30 p.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 Rick Robinson, Member Gary Murai, Special Counsel J Yoshimoto, Deputy Corporation Counsel Renee Lawrence for Emily Hirayama, Secretary 1. CALL TO ORDER(11:00 a.m.) Ms. Kahakalau: My name is Ku Kahakalau and I'd like the members of our board to introduce themselves before we get started. Mr. Robinson: Rick Robinson. Mr. Goodenow: Ken Goodenow. Mr. Adams: Doug Adams. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: Wonderful. We almost had a...statement from the public but that was withdrawn. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF JULY 11, 2017. (11:02 a.m.) Ms. Kahakalau: -And so we're going to go right into the approval of the regular session minutes of July 11. Mr. Adams: I move approval and acceptance of the minutes of the regular session of July 11, 2017. Mr. Robinson: Second. 1 J Ms. Kahakalau: Do I hear any discussion in regards to the minutes? Mr. Goodenow: No...only we should probably discuss the dates off the record before we...there was a lot of minutes talking about the dates. Mr. Adams: I don't think we get the opportunity to do that. Mr. Goodenow: Well maybe we could do a consensus off the record no...alright...no comments. Ms. Kahakalau: I just had a minor thing on page 14...that's the Marquesas Island...that's just a minor spelling. Alright if there's no further discussion...I'll call for the question...all in favor of approving the minutes of the regular session for July 11 say aye...any opposed? That motion is carried. Thank you. Motion and Vote: Mr. Adams moved to approve the minutes. Mr. Robinson seconded the motion. All members voted aye. 4. NEW BUSINESS (11:02 a.m.) 11:03 a.m. a. Petition No. 2017-07: Initial review of a petition alleging that a County officer or employee is in violation of Sections 2-80 (Interpretation of article), 2-83 (Fair treatment), and 2-91 (Appointing authority's power to discipline) of the Hawaii County Code. Ms. Kahakalau: And we're moving on to new business. New business is Petition number 2017-07. We have our Kohala...can you hear us? Ms. Sweeney: I can hear you. Ms. Kahakalau: Great. Is the petitioner there? Ms. Sweeney: Negative. Ms. Kahakalau: Okay. Thank you very much. We do have...do we have anybody here that would like to say or add anything to this petition? No? Okay. Mr. Murai: Actually Madame Chair if I may just for the record...Special Deputy Corporation Counsel Gary Murai. Ms. Kahakalau: Thank you...yes I should have introduced you...I'm sorry we switched so fast...thank you very much for identifying yourself. 2 Mr. Goodenow: Did Mr. Hyland ask to be excused or did he send any message as to his whereabouts? Ms. Sweeney: Chair...I do have some information from a testifier...last week Mr. Hyland fell and broke his hip and I believe they were gonna ship him to Oahu...that's not confirmed by me so that's the only information I can offer. Mr. Goodenow: In any event...then I suggest maybe we should move to continue this matter...I mean I don't know out of fairness to the...people who are here....but... Mr. Murai: If I may Madame Chair...I was copied on some of the correspondence that Mr. Hyland was exchanging with the board secretary and the last communication I saw indicated that he would be appearing in Kohala...remotely by video and he was the one to make sure that the connection was setup...if the board has not received any request to continue...then...of course it's up to the board how it wishes to proceed...but...at any rate...if the board wishes to proceed...well I leave it to the board whether it wants to continue or to call the matter. Ms. Kahakalau: Thank you very much. I would say in general...when a petitioner isn't there...it is sort of their responsibility to inform us...unless this happened last night you know kind of thing and he really couldn't do it...I'm not too sure when the accident occurred and we truly are sorry about the accident. One of the issues is that we have special counsel flying in all the way from Maui at a cost of the County i.e. myself as a tax payer...so I think that's one thing that we should think about as well. Mr. Goodenow: I don't know if...I didn't make a motion...where are we on...are we on discussion? Ms. Kahakalau: Right now we're...I'm looking for a motion...I'm kind of entertaining... Mr. Goodenow: I won't make it yet but I...I feel maybe...you know if I read what the petitioner has put....right there's no doubt in my mind that...these are not violations...I mean...even if I...although I thought it might be a waste of time...the fact that he's not here maybe to supplement it for reasons beyond his control...the only thing is if he comes back...I guess he could refile and then we're all back here again...I just don't know if the person has any more information as to his...if he's currently...I mean...in the hospital...or...that's just my...I have a hesitation because are we 3 really gonna expedite it by ruling on just what we have before us which I agree to me is clear how I would vote...I leave that...bring that up for discussion. Ms. Kahakalau: Would it be possible for somebody perhaps to do a motion then we can discuss it further or I mean it's up to you folks. Mr. Robinson: Madame Chair I'd like to make a motion that we deny Petition 2017-07...I've reviewed it and I don't see where there's any violation of ethics. Mr. Adams: Point of order Madame Chair. Ms. Kahakalau: Yes. Mr. Adams: We haven't even brought the petition up for us to be able to even deny it. We haven't accepted this petition yet. Mr. Robinson: Okay. Ms. Kahakalau: So...we need to restate the motion? Mr. Adams: I would move that we...I would move that we table this...motion to the next meeting...if that's the correct term...it maybe it's continued...whatever the right term. Mr. Goodenow: I would support that...that's what I've been... Ms. Kahakalau: Okay. Mr. Goodenow: I feel the frustration...I know why it's seems like and Mr. Murai has to be paid to fly over here again...I...but...if the representation has been made...who...the person that came to testify...are they there in Kohala? Ms. Kahakalau: Yeah...but... Ms. Sweeney: Negative sir...there's nobody here...this was a testifier from last week's committee. Mr. Goodenow: Oh. Ms. Sweeney: We normally give Mr. Hyland a ride. 4 Ms. Kahakalau: Thank you...so we have one motion that was made earlier but that may not be the correct motion so you may want to...do you want to do anything? Mr. Robinson: No. We have two motions... Ms. Kahakalau: Yeah. Mr. Robinson: I think Mr. Adams stated that we haven't even brought the petition up...I was under the impression that we had... Ms. Kahakalau: Okay. Mr. Robinson: We go into this petition on the agenda. Mr. Murai: Well just to keep some order here...I've heard two motions but no seconds.... Ms. Kahakalau: Yes. Mr. Goodenow: Right. Mr. Murai: So... Ms. Kahakalau: So I wanted to start with the first motion and see if there was a retraction perhaps of that motion... Mr. Goodenow: Before we make the decision on continuing... Mr. Robinson: My motion's out there...there's not a second? Mr. Goodenow: I'd like to hear from maybe...the respondent. Mr. Murai: If you're either gonna hear from the respondents or you're gonna continue it because it would be unfair to hear from them if the all know...I m a periodic petitioner is not present. Now I...as you visitor here and I defer to how you folks normally process your petitions but in my mind I would suggest the board consider Rule 4.5 of your administration rules which allows the board to consider whether to even accept a petition for hearing before having the hearing. Ms. Kahakalau: Alright so...to review again we have two petitions but no official second on either...two motions I'm sorry...but no second on either motion...so... 5 • Mr. Goodenow: I think the appropriate motion to make would be to start...to dismiss or...you know a main motion and then if someone wants to continue we can make a secondary motion...so for the purpose of discussion I'm going to make a motion that we do not accept it based on...the allegations that Mr. Hyland is not here to supplement his petition and.... Mr. Murai: Well... Ms. Kahakalau: That's not. Mr. Murai: Board member Goodenow...I'm not sure whether your rules require supplementing of a petition. General speaking the way I look at your rules...the petition should be able to stand on its own. Mr. Goodenow: Right and I'm saying...we're saying it is and in addition he's not here to supplement it. Ms. Kahakalau: Mr. Goodenow first of all you need to turn on your mic but be recognized before....please. Mr. Goodenow: Sony. Ms. Kahakalau: Before you speak...so the thing is when we talk about the rejection of a request which is kind of what I'm hearing...then we got to follow 4.5 of the rules and I would say if it's a...it would be (b)...the request either one...the request is speculative or purely hypothetical and does not involve an actually situation or number two which is the request is frivolous or number three the request does not substantially comply with the requirements set out above. So if somebody wants to make a motion in terms of rejecting the request based on one of those or any other...but it needs to be...so 4.5 (b)(1)(2) I would say is a possibility. Mr. Goodenow: Could you read it one more time Madame Chair. Ms. Kahakalau: Sure...in 4.5(b)(1) it says that the request is speculative or purely hypothetical and does not involve an actual situation or (b)(2) would be the request is frivolous...if those are reasons then we can use those particular reasons to reject the request. Mr. Adams: I'm kind of lost...do we have a motion and a second? Ms. Kahakalau: No. We're still looking for a motion...but the motion that was made when we say we're gonna reject the request...we can reject it based on the fact that the petitioner is not present...that's not a 6 reason for rejecting the request...we have to have another reason to...that follows the statutes so... Mr. Goodenow: That it would be frivolous and he's not here...I mean that's irrelevant yes. Ms. Kahakalau: Alright so do I hear a motion? Mr. Goodenow: I'm not sure what the definition of frivolous would be exactly...that's where I'm...I mean I would say these are without merit...but he's a non-lawyer...corp. counsel care to give us advice? Ms. Kahakalau: Yes. Mr. Murai: What specific advice are you asking for? Mr. Goodenow: What constitutes being frivolous? Mr. Murai: Well...I'm not prepared to give you a definition of frivolous however...you could consider the fact that this regards a matter that's already in federal court...and perhaps the board might consider abstaining for that reason...the board could consider whether this even alleges a violation of the Code of Ethics...and I would say that if some...if a petition does not allege a violation of the Code of Ethics then it is frivolous. Mr. Goodenow: Right the violation...I mean it's alleged of course that...although it was at the same time perhaps...contempt of court or something else and of course I'm not saying it is...but that... Mr. Murai: You don't want to speculate as to what happened in federal court because we don't know. Mr. Goodenow: Well I'm just reading what his petition is...his petition is saying that...she did not treat him in a fair, courteous manner and because she...I don't know...I'm just stuck on whether there's grounds to not accept it...that's where we're at. Mr. Adams: So Madame Chair I'm just...I am...I continue to be uncomfortable that we're having any discussion when we're not actually operating under any type of motion...and so... Mr. Murai: I'm sorry I believe the Chair did call...did you call the two petitions? 7 Ms. Kahakalau: I called for a motion multiple times on Petition No. 2017-07 and we've had all kinds of ideas on the table but not a real motion and certainly not a second to discuss it any further. Mr. Murai: Why don't we do this then...in light of board member Adams' concern...Madame Chair I suggest you call the two matters by petition number and invite the respondents to the table and we can note for the record that Mr. Hyland the petitioner is not present. Ms. Kahakalau: That I would entertain that in the absence of nobody else making a motion but I still feel uncomfortable without a motion on the table. Mr. Adams: I think what Counsel is saying Madame Chair if I may...is that you have the ability to call the respondents to the table when you call forward the petition to the attention of the board...then you can then call for the petitioner to testify noting that there is no petitioner...you can then call for the respondents to testify. Ms. Kahakalau: And then... Mr. Adams: That's part of the normal rules where we would operate and then we can have questions if we decide to...we can make a motion that point if we decide to...the fact that you're calling the petition...that means that we've now accepted the petition for consideration. Ms. Kahakalau: Okay. Well I believe that the very beginning of the meeting when checked if Mr. Hyland was in Kohala...I also asked if...if anybody is here that would like to speak to this petition and there was nobody responded. Mr. Adams: As a petitioner. Mr. Robinson: Or respondent. Ms. Kahakalau: Or respondent... I thought I said if there's anybody here that would like to respond to the petition and I can ask that question again...is there anybody here that would like to respond to the petition...but it doesn't seem like... Mr. Adams: It doesn't seem like it either. Ms. Kahakalau: Okay...so we don't have a petitioner that's here and we don't have anybody that from the audience that would like to respond at this point to the petition so we have a number of options...one is to obviously the rejection part and one is a continuation part. 8 Mr. Robinson: So at this point we can have a motion...and so Madame Chair I'd like to make a motion that we reject this petition on the bases of it is a frivolous petition. Mr. Goodenow: For purposes of discuss...I'll second that. Ms. Kahakalau: Okay so we have a motion to dismiss and we have a second...can I...any further discussion in regards to the matter. Mr. Adams: Yes...thank you. I would...respectfully disagree...I think that the process here is both for protection of the petitioner and for the respondent...without the petitioner being available...for whatever reason...our practice has been...whether it's written down frankly...our practice has been to allow at least one meeting and so I would encourage us to do that...I am well aware of the logistics associated with that and that that...it would be far preferable to have us acknowledge...to know that this was going to happen particularly because of the time of lots of important people having to take time out of the day...spend money...tax payer money and all that...I get all that...but this is a process and the process allows for the petitioner to make a petition...if there is...if as we understand potentially there was some type of reasonable...there was a reason that we would acknowledge is not intentional for that petitioner not to be here...then we would typically move it to the next meeting with an understanding that we're checking out...you know is there a plan for that individual to be here so I just would...indicate that that's been our practice...as I understand it in the past and so I would vote no on this particular motion. Ms. Kahakalau: Thank you Mr. Adams. Mr. Goodenow. Mr. Goodenow: Thank you Madame Chair. Based on what Mr. Adams had said...I'm going to make...I'm not sure if it's incidental or subsidiary...I think it's incidental motion to continue the motion and discussion...agenda item to the next meeting where Mr. Murai is available...that's my motion. Ms. Kahakalau: Thank you. Mr. Adams: Second. Mr. Murai: For the sake ofclarity...we're clarit ...we're moving to continue the motion to reject the petition. 9 Mr. Goodenow: So it will be on another agenda and we're gonna pick up where we left off which will be the motion will be pending which will be to reject the petition... Mr. Murai: Petitions...rather. Mr. Adams: We're only talking about 07 at the moment. Mr. Goodenow: Oh yes. Ms. Kahakalau: We're only talking about 07...that's the only one that I read. Mr. Goodenow: So we're on 07 only. Ms. Kahakalau: So we have a second to that incidental.... Mr. Goodenow: Motion to continue. Mr. Robinson: Madame Chair if I may...what bothers me about this petition is it is all based upon what he reads in the paper. If I stayed at home and every time I read something in the paper that I thought was wrong...and then I filed an ethics violation...I'd have to hire somebody to just file these for me because every time you read the paper and every time you see something you don't like...I've been violated ethically...you know the whole bases of this petition is what's been read in the paper...it's just ridicules...anyway I wanted to say that...it's sitting inside me if I don't get it out...I'll explode. Ms. Kahakalau: Thank you and I have to say I feel the same way...I've been miss- quoted in the papers more than quoted correctly you know...personally...and even if the statement that was quoted is such a vague statement...it's not an absolute statement so I feel very strongly too that you know at one point we have to look at when is it a waste of the tax payer's time and money and I feel sometimes very...almost upset that there is nothing in the code that prevents people from filing or at least sanctions them if it is found out that these petitions are in fact wasting tax payer's money which we currently don't have in our statute. Mr. Adams: So Madame Chair if I may...may I? Ms. Kahakalau: Yes please. Mr. Adams: So I appreciate both of those viewpoints...I don't agree with them...part of why we have this process is to,allow for citizens that 10 have really no other way to make their concerns known is to be able to come to us...is it always fun and games? No. Does it...is it something that we would see in a court somewhere? No. Not necessarily...but that's the...that's my view...that's the function of this...that's one of the functions of this board is to allow for those petitions... Mr. Murai: I'm sorry memberAdams...I want to point out this is matter in federal court right now. Mr. Adams: Did I say anything that is going to affect that? Mr.Murai: No...no...I think you had commented on something about not having a support.... Mr. Adams: It was a general comment counsel. Mr. Murai: Yeah. Ms. Kahakalau: Yeah. Mr. Adams: Thanks. Ms. Kahakalau: And if I felt that the petition stated that there was an actual violation of the code...I would feel exactly the same...I feel that you know this is why we're here...is so that when violations to the code occur that people can come and petition but I really don't see this petition being...having any information in there that points to a violation of the code from the way I read the code and so that's why I'm in support of the motion. Mr. Robinson: And you know if I could Mr. Adams...Iagree with you about having a process...going thru the process...submitting the petition and that's what we do but we also have the leeway to reject a request whenever it's considered frivolous so we've given him his...ability to apply. Mr. Murai: Madame Chair if may. A corner note for the record that in the gallery are Deputies Corporation Counsel Amy Self and Kaena Horowitz who are both respondents in the matter. I see that...Ms. Self has kind of indicating that she may want to address the board...I'm not sure whether the board's inclined to hear from Ms. Self but.... Ms. Kahakalau: Thank you counsel. The offer was made multiple times...it stands so if you would like to come and address the board...I'm perfectly 11 fine with that...thank you and I'm sorry if I didn't see it and if you could make sure you turn your microphone on please....and identify yourself Ms. Self: Good morning Madame Chair....this Deputy Corporation Counsel Amy Self and I believe that I am...the one in Petition No. 2017-07 is concerning...I just wanted to point out that...I was actually shocked that there was an ethics complaint against me...I've worked for the County in my current position for 13 years and I've never had an ethics complaint against me. As far as this particular complaint...I don't know Mr. Hyland...I've never met him before...I've never spoken to him...I've never corresponded with him...I've had absolutely no contact with him whatsoever. So I don't know how I would be discourteous or unfair and the other things that are spelled out in the ethics code because how can you do that if you've never even communicated with the person. I don't control what the reporter puts in the paper...she almost got it right but it wasn't even my quote if you notice it was her quote....so you know I have no reason to believe at all that I did anything that was discourteous to Mr. Hyland or anyone else. I'm just doing my job as the Deputy Corporation Counsel for this County. Ms. Kahakalau: Thank you. Are there any questions?No. Thank you. Is there any further discussion in regards to the matter? Mr. Goodenow: Are we still on just number.... Mr. Murai: Right now there is a pending motion to continue the motion to....2017-07 and I note that there's been no second to the motion. Ms. Kahakalau: No...it was seconded. Mr. Murai: So Madame Chair what we're discussing now is the continuance. Ms. Kahakalau: Yes I'm aware of that...Mr. Goodenow. Mr. Goodenow: You know I...I am as much as I feel this to be...I mean...especially for 2017-07...I mean...I don't think yes this is going to turn out to be anything but being dismissed...no question...that being said though I think part of our function is not only to...look at what when wrong or looking at alleged violators right...the other half of our job is to interact with the public so that they feel...that their concerns were looked into...that they...you know...and part of the process even though we've dealt with Mr. Hyland before...I think should be to afford him the opportunity to 12 hear what is being said so he can hear it...and he can understand when we tell him...you know...it's being dismissed...now I might make it sound even more academic than I really mean because...procedurally if we look at not accepting it...I don't know if any other time this board has not accepted an application except maybe if there you know was some real flaw in it...this is a- big step and I'm not sure exactly...I don't feel comfortable saying something is frivolous or not without more legal guidance...and so for all those reasons I would...I support continuing. Ms. Kahakalau: So do we have any further discussions? If not then I call for the question...so okay...the motion is that we continue the motion to dismiss for the next meeting so that our petitioner can be here and can add further information to his original petition. Mr. Goodenow: And to hear and I hate to have you guys come back...but...I think he should hear it...I mean I don't know I leave that you all. Ms. Kahakalau: Okay...so everybody's clear on the motion? Then all in favor in the motion say aye...any opposed? Mr. Robinson: Opposed. Ms. Kahakalau: Motion is carried with on opposition. Okay thank you very much and then we're moving on... Mr. Murai: Madame Chair wait a minute...there's a four members present and the board is entitled to five...the motion would have to...you'd need three votes to carry the motion so Madame Chair I think you need to vote... Ms. Kahakalau: I did. Mr. Goodenow: She did yes. Mr. Murai: You voted in favor of... Ms. Kahakalau: I voted in favor....so there is three of us in favor and we one opposition. Motion and Vote: Mr. Goodenow moved to continue the motion to dismiss to the next meeting where Mr. Murai is available so that petitioner can be present and hear added information to original petition. Mr.Adams seconded the motion. Members Kahakalau, Goodenow and Adams voted aye. Member Robinson opposed. 13 11:31 a.m. b. Petition No. 2017-08: Initial review of a petition alleging that County officer or employee is in violation of Sections 2-80 (Interpretation of article), 2-83 (Fair treatment), and 2-91 (Appointing authority's power to discipline) of the Ilawai`i County Code. Ms. Kahakalau: So we're moving on to Petition No. 2017-08. The same status goes for our petitioner Mr. Hyland is the same petitioner is not here due to an emergency...we do have...my understanding is we do have...the respondent in the audience so if the respondent would like to say something...that is our practice and you're more than welcomed to come...if not then I would like to entertain a motion. Mr. Goodenow: I move that we continue it to run concurrently or whatever with the previous petition...be placed on the same agenda with the previous complaint. Mr. Adams: Second. Ms. Kahakalau: Okay so for this one...we're just calling for a continuation... Mr. Goodenow: Yeah. Ms. Kahakalau: Of this initial review until the petitioner.... Mr. Goodenow: Sorry can I take that back...do you might withdrawing your second. Mr. Adams: Sure I withdraw the second. Mr. Goodenow: I want to move to dismiss and then after we can do that the motion on the floor can get continued...just so it's like the other one. Ms. Kahakalau: Do we have a second for our motion to dismiss? Mr. Robinson: I'd second that. Ms. Kahakalau: Now we have some discussion in regards... Mr. Goodenow: And at this point I'm gonna move to continue. Mr. Adams: Second. Ms. Kahakalau: Okay so we have...it's the same situation again...do we have any further discussion? 14 Mr. Robinson: Madame Chair if I may...the one thing that bothers me about this is it we're continuing these on the basis of hearsay...we don't really know if anything happened to Mr. Hyland...we have somebody who may have said that they heard that maybe this is what it is...so that bothers me...we don't really have a written request or anything and admittedly the circumstances maybe such that you know something happened and he was not able to inform us but still it just bothers me so I wanted to be sure we understood. Mr. Goodenow: Yeah. Ms. Kahakalau: Yeah...I'm not very comfortable with it either but I do hear our other two members sort of saying you know that we are here to serve the public and even when my Na`au tells me that you know I don't personally don't understand Petition 2017-08 at all...I don't know what the grounds of it is...I really don't get it...and maybe that's just my limited understanding but I don't understand you know what the purpose...on what the specifics are supposed to be...I see a lot of what the Code of Ethics in question...I see a lot of County Codes here but I don't see what the specifics are so I'm a little bit...upset in a way that people can make a petition that to me just don't spell out what the issue is...but again I do also understand the importance of allowing the public to come if they think their rights have been violated and so in this case...I would also...therefore vote the same way I voted for the last one to give Mr. Hyland an opportunity to further explain his very, very in my opinion unclear petition. Any further discussion? Then I call for the question all in favor say aye...any opposed? Mr. Robinson: Opposed again. Motion and Vote: Mr. Goodenow moved to continue the motion to dismiss to the next meeting to run concurrently with the previous petition. Members Kahakalau, Goodenow and Adams voted aye. Member Robinson opposed. Ms. Kahakalau:. So we have again three in favor and one opposed so that motion is carried...so both of these petitions...and this is my question now counsel....because when he files the petition then obviously you know we expect him to be there...but now it's continued...does he...will he know that we are expecting him to be there...what kind of communication will there be to assure us that if he can't be there that we're gonna be informed about it because I would not want to have the same scenario repeating itself a month from now. 15 I Mr. Murai: Well Madame Chair first of all...you know with the Chair already noted that we set up a remote connection to Kohala...Mr. Hyland is not present...staff at the remote site has confimied that he's not present...normally when you continue a matter...you would give all parties notice of the continued date...in this case I suppose...you could instruct the board secretary to send a letter to Mr. Hyland indicating the continued date and time of the next hearing. Ms. Kahakalau: Can it include that we expect him to confirm that he's going to be there? Mr. Murai: Yeah you could instruct Mr. Hyland to please confirm that he'll be appearing at that date. Ms. Kahakalau: So did we get that Renee? Yeah...so please he needs to confirm either per phone call or in writing you know couple days before the meeting that he will be there. Mr. Murai: I would suggest sooner than that because you want to know whether to put it on the agenda or not. Ms. Kahakalau: On the agenda...yeah. Mr. Murai: And the agenda would be posted at least six days prior so I'd say to notify the board at least ten days prior and if he does not notify the board within ten days...it will be up to you Madame Chair to instruct the staff whether to place it on the agenda or not. Ms. Kahakalau: Put it on the agenda or not. Mr. Adams: Madame Chair if I may...part of the...at least the initial motion was to make sure that our counsel would be available as well... Mr. Goodenow: Right. Mr. Adams: And so... Mr. Murai: Well if I'm not available...we're fungible goods...I can be replaced by somebody else. Mr. Adams: Got it. Mr. Murai: But...what are we looking at? Mr. Adams: September 12th I think. 16 Ms. Kahakalau: Yes. Mr. Murai: Yeah I could be here. Ms. Kahakalau: Yeah our next meeting is scheduled for September 12th but then we would have to change it to 11 o'clock again as well...because of the Maui... Mr. Murai: It kind of depends you know...I appreciated the accommodations starting at eleven because they've changed...Hawaiian has changed it's flights and now the first flight out of Maui arrives at 10:07...it used to arrive at 9:45...normally what I would ask if there's lots of things on the agenda...that we take those matters first and then pass on the petition until I get here...like this morning I got here about 10:15 so it shouldn't...we could still set it up for ten and for all we know Mr. Hyland may not respond and Chair you may decide to take it off or whatever the case may be. Ms. Kahakalau: So I'll work with the board's secretary in terms of looking at what other agenda items will be...if there will be other agenda items because this last time we didn't have any either and then we'll decide on the time...but we will send you an extra reminder if we do change the time from 10 o'clock and I apologize for that lack of an extra reminder for this time around. Thank you....go ahead. Ms. Self: I just wanted to let the board know that I'll be out of the country during September's meeting. Ms. Kahakalau: Okay...so September 12th you won't be here? Ms. Self: No. Ms. Kahakalau: Okay...so to me I mean that's a valid you know if we're waiting for the petitioner then we also need to be making sure that the respondent is here...giving both of them...if you're gonna be courteous to one when need to be courteous to the other...so then that will mean that we would have to send...we would have to postpone it then to our October meeting. Mr. Adams: Well I would ask...is there any intention...I'm sorry counsel...is there any intention on being represented...if you're not here...do you plan on having a representative here. Ms. Self: Yes. I can have a representative here...I just will not be here to answer/respond to any questions that... 17 Mr. Adams: Although your representative could do that. Ms. Self: Yes. Mr. Adams: Okay. Ms. Kahakalau: And you feel comfortable about that because if not I don't have any problem with moving it to October...would you be back in October? Ms. Self: Yes. Ms. Kahakalau: Do we have any comments from the board? Okay. Then I'll make...let's...is there any problem counsel with moving it...continuing it to October? Mr. Murai: When. Ms. Kahakalau: Certainly nothing... Mr. Murai: We're trying to find out if it works. Ms. Kahakalau: Yeah and then what that would mean. Mr. Adams: We haven't decided the date for October .et for this meeting. g Ms. Kahakalau: And then the other issue would be...then we would have to...do we separate the two opinions because for both of them...we need a non-County of Hawai`i counsel present...so would that mean that we postpone both of them? Mr. Murai: I'm sorry. Ms. Kahakalau: If we're going to postpone.... Mr. Murai: That's your call...If you want to break them up and hear the 08...2017-08 in September...that's your call. Ms. Kahakalau: Okay...so because to make it easier on Mr. Hyland who obviously has lots of physical concerns...we would keep the two together and I would...I'm gonna say that we postpone them to October...if that's alright with both of you...whichever you prefer...it's your preference. Ms. Self: Well if you...if the board would rather hear it in September...Kaena could actually represent me. 18 Ms. Kahakalau: I won't be here in September either so doesn't matter to me at all. Mr. Goodenow: Move it to October. Ms. Kahakalau: We'll go for October...it's cleaner you know if we already did this you know to accommodate and lets be as clean about it as we possibly can under the circumstances so we're going to inform Mr. Hyland that this is going to be continued until the October meeting. Thank you very much. 5. UNFINISHED BUSINESS (11:42 a.m.) Ms. Kahakalau: We don't have any unfinished business so our next item is to go into executive session. Mr. Robinson: Motion for executive session. Ms. Kahakalau: Do I have a second? Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? All in favor say aye. Motion and Vote: Mr. Robinson moved to go into executive session. Mr. Goodenow seconded the motion. All members voted aye. 11:43 a.m. The Board moved into executive session. 12:05 p.m. The Board returned into regular session. Ms. Kahakalau: So we've just returned from executive session where we reviewed the executive session minutes of July 11...one confidential disclosure form and also a memo from our Deputy Corporation Counsel regarding the powers and duties of the Hawai`i County Board of Ethics under the Hawai`i County Charter and Hawaii County Code. 6. VOTING ON EXECUTIVE SESSION MATTERS 've session minutes of 2017. 12:07 p.m. a. Review of the executive July11, Ms. Kahakalau: Do I hear a motion in regards to the executive session minutes? Mr. Adams: I would move that we approve the executive session minutes as reviewed...I'm sorry for July 11, 2017 as reviewed in our executive session today. 19 Mr. Robinson: Second. Ms. Kahakalau: Any discussion? All in favor say aye... Motion and Vote: Mr. Adams moved to approve the amended executive session minutes. Mr. Robinson seconded the motion. All members voted aye. 12:07 p.m. 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: We also reviewed and approved the one confidential financial disclosure form...do I hear a motion to file? Mr. Robinson: Motion to file Madame Chair. Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? All in favor say aye. Motion and Vote: Mr. Robinson moved to file the on confidential financial disclosure form. Mr. Goodenow seconded the motion. All members voted aye. c. Memo from Deputy Corporation Counsel J Yoshimoto regarding powers and duties of the Hawaii county Board of Ethics under the Hawaii County Charter and Hawai`i County Code. Ms. Kahakalau: Do we need to do anything in regards to memo? Mr. Adams: No...it's attorney-client privilege. Ms. Kahakalau: Okay... 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII. (12:07 p.m./12:14 p.m.) Ms. Kahakalau: So we're moving on... Mr. Adam: Madame Chair...I would move that we move to agenda number/item eight so we can take care of that for...make sure that Maui counsel is good with whatever date that we come up with in October. Ms. Kahakalau: That sounds good...do I hear a second? 20 Mr. Robinson: Second. Ms. Kahakalau Any discussion? All in favorr say aye. Motion and Vote: Mr. Adams moved to take up agenda item eight first. Mr. Robinson seconded the motion. All members voted aye. Ms. Kahakalau: We're coming back to number seven. Mr. Adams: Madame Chair if I may... Ms. Kahakalau: Yes please. , Mr. Adams: So in the process of looking at our Rules of Practice and Procedures...I've had the opportunity to take a look at some of our other County...you know the City and County of Honolulu...Kauai County and Maui County...looking at their rules as well...I must say that Maui County's rules are about as substantive...f fty pages worth of Rules of Practice and Procedure...as recently as...I guess Kauai 2013...that's pretty reasonable but pretty recent...so they go into a great deal of detail in terms of the...rules that they have particularly of procedure...but when I take a look at...when I take a look at their County and I haven't done it in detail but when I have scanned their County ethics statutes...they have a little bit more detail and what they do then what we have as a part of ours interestingly...it's not a carbon copy for example...so when I take a look at that then that kind of...you know I wanted to see if there's something that they're doing that would be advantageous for us to pay attention to and all those kinds of things...so that's great...I also had the opportunity and decided I wonder if there's something else out there...somebody else out there that would be interested and so I was able to pull up the Denver Board of Ethics...they had amendments thru October of 2016...and so there was something that was interesting in the Denver Board of Ethics • that I wanted to kind of get...since we're in discussion here an idea about...they have the ability for a current, former prospective officers to submit a written request for a waiver of any provision of the Code of Ethics...so that they can bring a waiver into the...they can submit a request that some particular action that they're I guess proposing to take or in some cases might have already taken that potentially would be considered a violation of the code that the Board of Ethics for their city would have the ability to...for good reason...for good cause...issue.a waiver...I found that interesting...I need to go back and see whether or not there's something that's in there statutes...I don't see it our statutes 21 necessarily...but that was...that was an interesting because typically...you know...the...the idea that there are exemptions to policy is always you know...part of you know how we operate...but...we're dealing with statute and that's different often times...so just your thoughts on the idea of going down that rabbit hole...seeing if there's something that makes sense for us there but I think that if I'm thinking about it and the last couple of years we had a particular...the travel case and by our public officials and that...had that waiver capability been available...that might have been...a way to maneuver through that at least for me...so... Mr. Goodenow: That sparks my interest...putting it that way. Mr. Adams: Anyway...I just...I guess I would...get your initial thoughts on whether that's something that...one we can do or we...you know if we're not given that authority then we probably can't do that necessarily because these Rule of Practice and Procedures...you know we're authorized to...set our own Rules of Practice and Procedure right...it's part of the board...what boards can do and it's in our...it's in the code also and they then have the force of law...you know obviously County Council ordinance takes precedence kind of idea but they have the force of law for the purposes of procedures so...that...it's pretty serious business this whole rules deal...so I've done enough talking about that...your thoughts on the idea of looking at being able to consider waivers. Ms. Kahakalau: Well I know from Hawaiian prospective we always have that out you know because there's always a possibility that something doesn't fit you know...the ideas all there and the intent is there but there's just this one aspect that just doesn't fit it even though if you would technically interpret it...it would fall under it but it doesn't quite kind of thing so I'm actually in support of that just because that's a traditional way and a way that we operate and from a Hawaiian world view...and I also think that it applies in law also you know that there's just sometimes when there's just when it just doesn't fit...and then for myself not being a lawyer...I'm definitely a little bit more flexible but I can see where people that are lawyers you know are really so bound by that that you couldn't make up another decision except for the one that's a very literal interpretation where I would you know so to me a waiver in that...in those kind of rare exceptions you know because that's really what it would be rare exception would be something that may be of benefit for the people that are coming or that are being accused of something. Mr. Adams: Okay. Y 22 Mr. Goodenow: Pardon me...I'd like to get a waiver for us to write to the State Ethics Commission protecting us from any liability...just kidding...but it's a good...Doug I'm gonna take a look at Denver...I think that's a good thing...I like the idea.... Mr. Adams: Okay. Mr. Goodenow: Thank you for the cultural prospective as well. Mr. Adams: Okay...couns el? Mr. Yoshimoto: Yeah I think it's worth exploring...I have comments over the entire Ethics Code so I guess when the time is appropriate...I'll make those comments as well because...there's a lot we can recommend...fixing to the Council...that's one of our functions and...I think it's a lot that can be done basically restructure at least...what's the word...solidify what we really want to do with our Ethics Code because you know it...there's been some...sometimes when I know the board's thought about wanting additional specificity that allows you to do the things that you want to do...we talked about one today I think you know it's a very valid thing and if the code allowed it...it would be something that...would be helpful....but I have a lot to say about...your waiver yeah...I mean that would be a good idea to explore. Mr. Adams: Since we're having this discussion...and you've indicated that you have some ideas on that and may be you're having these conversations with the Chair already...I would be interested in seeing those because if...whatever...you know whatever is going to be proposed for the Rules of Practice and Procedure...it's going to be based on the existing code and if we're gonna change....recommend changes to the code then that's gonna potentially have changes to the rules...so the backwards way of this would be to do it the way I'm doing which is to come in with rules and then we're gonna submit code changes later on so...I would be interested in hearing about those suggestions but that's just me so... Mr. Yoshimoto: So the example is I guess you know member Adams what you're looking at is you're looking at Maui...see how...basically see how they do it...so they're very similar I think in our...approach to ethics complaints...you know the contrast would be how the State Ethics Commission pursues their complaints or how Honolulu City and County I think they take a more....for lack of a better term...prosecutorial.... Q 23 Mr. Adams: They do. Mr. Yoshimoto: Type of approach right...so what I mean by looking at what we have here and what we want to do is...this might be a good opportunity for the board to consider what we've seen...what we want to fix and where we want to go...I mean that's just the thought process...cause we have examples out there and you know there's merits to both of them...well both meaning...I guess I'll use Maui and Oahu as the example of the spectrums right of what we can do and we're kind of like Maui you know in the sense of how approach it but...is that what the board wants based on what you've seen and done...I mean that's the question you should be asking yourselves. Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: You know it might make things simpler...I mean if we had a permitted interaction group...actually we don't really need one because that would be two members right...permitted interaction group...you can't have a quorum where five...so there would be two and two can talk anyway...right...so this could be something maybe corp. counsel and the Chair along with Mr. Adams I think would be the natural grouping to get around Sunshine Law we wouldn't talk about it until you came to the board...but you kind of had a meeting just about this to come up with stuff together and then when the time is appropriate you bring it to the board...I mean just as a way to work it...I don't know how you feel about that. Mr. Adams: I'm fine...it's really your schedule. Mr. Goodenow: I do think the Chair should be on it. Ms. Kahakalau: Yeah...if this could be something that can happen after September...that would be really good because I'm going to be gone for three weeks which means I have to do a lot of things prior to that but...you know we've been kind of working on this slowly but surely for quite a while... Mr. Adams: Slowly... Ms. Kahakalau: Well we got something today so that's good...no so I would...I could definitely look on to my calendar for the month of October you know to see that we could something also just because we are gonna be here on our October meeting at 11 am....you know if we wanted to spend let's say come here at 9 am...something like U 24 that...since we're going to be here already that might also be a suggestion if that would work or...afterwards.... Mr. Adams: Madame Chair if I may...I'm feeling the pressure of time...my last meeting will be December... Ms. Kahakalau: I see okay. Mr. Adams: And so as I look at this...if it's possible on your schedule to meet earlier in October.... Ms. Kahakalau: Okay. Mr. Adams: And then depending on what we have we may be able to bring this to our October meeting. Ms. Kahakalau: Okay...let me just get to October month... Mr. Adams: We just know that we can't do it during the 9th to the 13th. Mr. Robinson: When you say bring it to the October meeting...that means we can meet earlier than October 9th .have our regular meeting.... Mr. Adams: No what I mean is that if the Chair and I are meeting with counsel...as a part of this...smaller group to talk about these potentials...bringing it to the October 23rd meeting would be possible as long as we are... Ms. Kahakalau: Okay. Mr. Adams: Have something to provide and if we're meeting earlier enough in October then we can develop that so that it becomes part of the agenda ten days before hand or whatever. Mr. Robinson: My point was instead of waiting to 11 am...we could actually start at 10 am...to deal with this... Ms. Kahakalau: That's a good point too...because we can put that on... Mr. Adams: I miss-understood. Ms. Kahakalau: I'm good the first week of October...I mean busy but I can do almost any day at this point and time and once I put it down then...so whatever days would work for you folks on that first week...2nd thru the 6th. 25 Mr. Adams: Yeah...I'm kinda looking at counsel to see what counsel... Ms. Kahakalau: J whatever works. Mr. Yoshimoto: I'm free the 2"d to the 5th looks completely open so...Monday thru Thursday but... Ms. Kahakalau: What about the 3rd because usually Monday's seems to be a little.... Mr. Yoshimoto: Third is good. Ms. Kahakalau: Third...whatever time is fine with you folks. Mr. Adams: Right so I have the morning... Ms. Kahakalau: Okay. Mr. Adams: And I have the afternoon so you tell me...what makes sense for you...I'm five minutes away from J's office so.... Ms. Kahakalau: I'm more of a morning person so on the 31d is good for me...let's say 9 a.m.? Mr. Yoshimoto: Okay. Mr. Adams: 9 a.m. works. Ms. Kahakalau: Alright and we're meeting in your office J? Mr. Yoshimoto: Yes...Lagoon. Mr. Adams: In the conference room because his office is a cubby hole...good view. Ms. Kahakalau: Can we get a little...what do we need...anything...once we find the conference room then would it be possible to give me...shoot me an email wherever...I have it done for 9 a.m. at this point on...on the 3`d...we just don't know where yet so I'll leave that part open and then once we have one then you can shoot me not a reminder but just a location. Mr. Yoshimoto: Our office is available and the conference room is also available...so confirmed. Mr. Adams: Just come to the...just come thru the front door. 26 • Mr. Yoshimoto: Yup. Mr. Adams: Okay. Ms. Kahakalau: What's the room number there? Ms. Lawrence: 325. Ms. Kahakalau: 315... Ms. Lawrence: 325. Ms. Kahakalau: 325 got it...lagoon....you have thoughts already you have something... Mr. Adams: We'll have some things there and we bring those together... Ms. Kahakalau: I'll just bring my binder with the codes. Mr. Adams: Okay. Ms. Kahakalau: Fabulous...so we had a very productive discussion...do we need to make any motions in regards to agenda item#7? Mr. Adams: We wouldn't be able to...it's just a discussion on agenda item. Ms. Kahakalau: Alright... **Move to back Announcements ** 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (12:08 p.m.) Ms. Kahakalau: So we're on agenda item number eight...and this will concern the meeting scheduled for October since we already have our September one scheduled. Mr. Adams: So October 11th would be the standard date that we would do that second Wednesday... Mr. Robinson: Second Wednesday or second Tuesday? Mr. Adams: So second Wednesday is what's the required date that's why we have this conversation every month to talk about two months down the road...so October 10th is what we had been moving to...and 27 really the question is whether or not that meets with our colleague gue whose on the Campaign Spending Commission. Mr. Yoshimoto: Well back tracking when we were talking about this previously...we talked about conflicts so that entire week of October 9th I'm not available so we had talked about either going before or after the first week or the third week and then we just kind of decided well let's just decide later...that's my recollection. Mr. Adams: Oh. Mr. Yoshimoto: So...so that week is...I mean if it's all ossible...I m not going to be available and I thought someone else was traveling during October. Mr. Goodenow: October l lth is my Campaign Spending meeting. Mr. Yoshimoto: So we had ruled out the second week is my recollection... Mr. Adams: Okay. Mr. Yoshimoto: We had talked about the first or third...meaning weeks. Mr. Adams: Right and so typically Wednesdays are a problem because that's Council meetings...right...so then the question is Tuesday...the third as a possibility...not a good possibility... Mr. Goodenow: That works for me. Ms. Lawrence: Council's meeting here so we could move it to another location. Mr. Yoshimoto: We can move to another location...I don' know if we can get video anywhere else. Mr. Goodenow: Oh you're right. Mr. Yoshimoto: I don't know if we can get.... Ms. Lawrence: The 24t1i there's nothing on the Council calendar now. Mr. Adams: Oh cause the 17th and the 18th they were not good? s. Ms. Lawrence: 17th and 18th are Council and Committee meetings. Mr. Goodenow: October 24th works for me. 28 Ms. Kahakalau: Yeah that works for me too...I'm in Montana the week before. Mr. Robinson: October 24th is fine for me. Mr. Adams: I would not be able to be here...I have another board meeting that I'll be running so...but that way you get done like in two minutes. Mr. Robinson: How about the 23rd? Mr. Adams: The 23rd is okay with me. Mr. Yoshimoto: Yep. Mr. Adams: Yep. Ms. Kahakalau: The Maui...October 23? Mr. Murai: Let me check. Ms. Kahakalau: So we're looking at October 23rd Mr. Murai: I'm available on the 23rd Mr. Kahakalau: Okay. Twenty-three it is. Mr. Yoshimoto: Eleven? Ms. Kahakalau: Eleven just to make it easier for Gary and if we can just have a little reminder out there that... Mr. Robinson: Yeah. Ms. Kahakalau: It will be at eleven....yes. Mr. Murai: Madame Chair if I may... Ms. Kahakalau: Yes. Mr. Murai: Since it is more than two months off...October 23rd...earlier I suggested giving Mr. Hyland requiring him to respond ten days prior...since we have so much time...maybe you could make the response date earlier and that way we know for sure whether...County expense of flying me over...assembling this board again and also for...even for the respondents... 29 Ms. Kahakalau: I'm fine with that but then we can put another...early that he can make it and if there is any change like a last minute anything to make sure that he contacts us you know within a day or...just at least so we have that...if there's medical...cause he has had multiple medical emergencies in the past...this is not his first medical emergency that has changed our agenda and our...so that would be another part to just put that into the memo you know that earlier date in terms of telling us if he can make it based on what he knows now but if there's any other last minute medical emergencies to please you know inform us even if it's you know the day of because we can call Amy folks so that they don't have to take off either...thank you....so we got that. Mr. Adams: I would move that we schedule the October...that we make the change from the...I'm sorry...I would move that suspend our rules and that we change the date of the October meeting from the 2nd Wednesday in October to October 23rd Ms. Kahakalau: Do I hear a second? Mr. Goodenow: Second. Ms. Kahakalau: Any discussion? All in favor say aye. Motion and Vote: Mr. Adams moved to suspend the rules and change the proposed regular scheduled meeting date to October 23. Mr. Goodenow seconded the motion. All members voted aye. **Move back to agenda item 7 ** 9. ANNOUNCEMENTS (12:29 p.m.) Ms. Kahakalau: The announcements are that the next monthly meeting is going to be scheduled for September 12, 2017 at 10:00 at the Hawai`i County Council Building and I've already noted that I won't be able to be with you folks so we have our Vice-Chair running the meeting and I hope everybody will be asked to be recognized before they speak... 10. ADJOURNMENT .m.12:30 ( p.m.) Ms. Kahakalau adjourned the meeting at 12:30 p.m. Respectfully submitted: Emil Hi;ayama, '>- '� etary 30