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HomeMy WebLinkAbout10-23-17 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Monday, October 23, 2017 11:00 a.m. to 12:10 p.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice-Chair Douglass Adams, Member Rick Robinson, Member Gary Murai, Special Corporation Counsel J Yoshimoto, Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER (11:00 a.m.) Ms. Kahakalau: Good morning my name is Ku Kahakalau and I'd like the members of our Board of Ethics to please introduce themselves before we get started. Mr. Robinson: Rick Robinson. Mr. Goodenow: Ken Goodenow. Mr. Adams: Doug Adams. Ms. Kahakalau: Thank you so much. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (11:01 a.m.) Ms. Kahakalau: We usually start with statements from the public on agenda items, but I don't see any here so...is there anything in Kohala? Ms. Sweeney: Aloha Chair...I have no testifiers here in Kohala. Ms. Kahakalau: Alright...Thank you. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF AUGUST 7, 2017. (11:02 a.m.) 1 Ms. Kahakalau: Okay then we're gonna start with the approval of the regular session minutes of August 7, 2017. Mr. Goodenow: Move to approve. Mr. Robinson: Second. Ms. Kahakalau: Okay. Is there any discussion in regards to the minutes? Then I call for the question...all in favor of approving the minutes of August 7, 2017 say aye...any opposed? Thank you very much. Motion and Vote: Mr. Goodenow moved to approve the minutes. Mr. Robinson seconded the motion. All members voted aye. 4. NEW BUSINESS (11:03 a.m.) Ms. Kahakalau: And we're moving on to new business except that there is no new business. 5. UNFINISHED BUSINESS (11:03 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 Hawai`i County Code. Ms. Kahakalau: So we will go right to our unfinished business...petition number 2017-07. And we have our counsel in regards to that petition...if you could please introduce yourself. Mr. Murai: Good morning Madame Chair...Special Deputy Corporation Counsel Gary Murai. Ms. Kahakalau: Thank you very much. Do we have anybody that is here in regards to that specific petition? Mr. Murai: Madame Chair I see that the respondent Ms. Self is in the gallery...I don't know if you want to ask her to come up to the table or not. Ms. Kahakalau: Yes...I wanted to see first if the petitioner was here...Kohala? Our understanding was that they would join us live from Kohala. Ms. Sweeney: Yes Chair that was my understanding also, but right to this moment I see no one here. 2 Ms. Kahakalau: Thank you so much....Vice-Chair Goodenow? Mr. Goodenow: Point of information Madame Chair....my understanding from I saw an email that...Mr. Hyland had stated numerous times he was going to be there and...is that correct?...have we verified that he was going to appear? Ms. Kahakalau: That's my understanding as well...Emily can you please verify if that's correct that he mentioned multiple times or that you contacted him and he mentioned multiple times that he was gonna be there via a long distance from Kohala. Ms. Hirayama: We sent him a letter on August 17 notifying that we were changing or moving his petitions to October...and I included that...I sent it as U.S. Mail and via email. He responded on the same day...August 17 that he would be able to make the meeting...and I sent him a reminder email on October 10`h and replied back on October 13th also stating that he would be there on the 23rd at eleven. Ms. Kahakalau: Thank you very much. Mr. Goodenow: Madame Chair...point of information again. I'm just looking at the minutes from the last meeting and it looks like we had a motion to continue...a motion to dismiss that was...voted on and approved and so there's a pending motion on the floor to dismiss...is that correct? Ms. Kahakalau: That's my understanding as well yes. Mr. Goodenow: So...I mean we...you know last time I mean I...to err on the side of caution to give Mr. Hyland the ability you know to present his case...I think we all you know reluctantly provided that but if he's not here today I think he's had notice of the hearing...I'm ready to proceed with the vote and dismiss this matter...we can discuss the merits...we didn't do much last time but I think it was clear from all of us that we really just were continuing to give him an opportunity to be there...that's my thought. Ms. Kahakalau: Do we have any other thoughts on this matter....Doug? Mr. Adams: I would just ask that if the respondent desires to speak to us that we give her that opportunity. Ms. Kahakalau: I appreciate that thank you. Any other discuss from the board? So respondent if you would like to have any input or say anything 3 in regards to the matter then I'd ask you to please come and state your name. Ms. Self: Good morning Chair...Deputy Corporation Counsel Amy Self. I would...I would urge the commission to dismiss this...this is taking time out of my work...I mean I was working up to the very last minute I had to come over here...I have a lot on my plate and you know if this was something that was legitimate...I would understand but...you know this is taking a lot time out of my busy schedule and I would appreciate it if the commission recognized that it was based on hearsay to begin with and that it is...it should be dismissed. Ms. Kahakalau: Thank you...could you just please state your name for the record. Ms. Self: Deputy Corporation Counsel Amy Self Ms. Kahakalau: Thank you...yes are there any questions to Corporation Counsel at this point in time? Thank you and I personally can say that I totally agree with you...Thank you. Ms. Self: Thank you. Ms. Kahakalau: Alright...so do we have any further discussions in regards to this agenda item? Mr. Goodenow: I'd like to apologize to Ms. Self too and note that this is the only thing really on our agenda are these petitions correct? Ms. Kahakalau: Yes. Mr. Goodenow: So I mean we're all here too because of that....so I think it's incumbent upon members of the public...I mean we're here to assist them and serve them but they need to mindful of people's time and...you know...claims that...I'11 leave it at that. Ms. Kahakalau: So basically last time when it was on the agenda already...there was and we had expected Mr. Hyland to be there...we got a notice not verified necessarily but hearsay that he was unable to come due to an accident...and so that's the reason we postponed it...then we made extra effort to verify and to...for him to let us know that he would be here today...nobody got any information as to the contrary you know that something happened and he couldn't be here...and so at this point in time we have a motion to dismiss and if there's no further discussion then I'd like to vote on that 4 motion...Alright...all in favor of dismissing Petition No. 2017-07 say aye...any opposed....motion is carried. Motion and Vote: The motion to dismiss by Mr. Robinson and seconded by Mr. Goodenow from the August 7, 2017 meeting is agreed upon. All members voted aye to dismiss the petition. 11:09 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 Hawaii County Code. Ms. Kahakalau: Going on to Petition No. 2017-08. We're in a similar situation in that it's the same petitioner. Mr. Adams: Correct...same petitioner different respondent. Ms. Kahakalau: Yes...who is not here and therefore...yeah go ahead. Mr. Goodenow: Oh I'm sorry Madame Chair I think though in this one maybe we didn't have a pending motion...we just continued it...So I would move to dismiss at this time. Ms. Kahakalau: Alright do we have a second? Mr. Robinson: I would second. Ms. Kahakalau: Okay thank you. Same...opportunity again if the respondent would like to say anything...you're more than welcome to come...seeing that that's not the case...are there any other...is there any other discussion? Mr. Robinson: Madame Chair if I could...in addition to everyone's time here...Mr. Murai flies from Maui...we incur the expenses...uses up his entire day...it's you know...that just bothers me. Ms. Kahakalau: I agree and maybe perhaps as we're looking at you know our...guidelines and looking at policies and looking at the...code that we need to abide by that maybe we could look into you know the fact that when petitions are made that are already you know not really substantive in any way...and when there is ongoing waste really of the tax payers not just time but also money...that they could be some kind of ramification...I'm not too sure if that's even 5 possible but just to explore that fact I personally would like to see that but I'm not too sure if that's something...maybe our counsel can advise us. Mr. Murai: Madame Chair my read of the rules indicate that...the board really doesn't have the...authority to sanction frivolous filings...I think what...in my opinion the framework of your rules...do allow the board to weed out or screen frivolous complaints at the get go...you know the board can find that there...can make a finding of good cause and dismiss a complaint even without giving it a hearing...you know the board can also dismiss complaints because they don't you know they may fail to allege any facts upon which even if true would constitute a violation of the code of ethics so...you know I guess the thinking is you don't want to discourage people from bringing complaints by you know threatening them with sanctions but there's other...mechanisms by which the board may weed out complaints that maybe frivolous or may have some merit but simply not cover the subject matter that's within this board's Kuleana. Ms. Kahakalau: And in those cases so let's say you know if a petitioner brings something to the board that we feel is not...would that be just a...decision of the Chair...or is that something that we need to... Mr. Murai: You know I...my understanding of your rules Madame Chair is that that's something that the Chair can recommend to the board as a whole so in other words...when you...when a complaint is received...my understanding of your protocol is that you're usually the first one to see it and maybe that's...it would be appropriate for you to review it with the assigned deputy corp. counsel to formulate a recommendation for the board. Ms. Kahakalau: And then is it still agendized? Mr. Murai: Yes it would be. Ms. Kahakalau: Okay alright. Thank you I appreciate that and then in that case for example the respondent wouldn't have to be there when it's discussed? Mr. Murai: The respondent could be there...it's just that you know that may not be the...hearing in other words it might be a preliminary matter where the board is deciding to whether even...whether to simply 6 dismiss it at that point or give it a hearing. The board can review a complaint and based on the board's review find that it does...that there's good cause to simply dismiss it without having a hearing. Ms. Kahakalau: Again I'm thinking of the respondent's time as well right to have to come when it is a petition that really doesn't merit... Mr. Murai: I don't think that we would...we would need to be overly concerned that you're depriving a potential claimant or petitioner of a forum because it's obvious in these cases that they are other matters...specifically...federal court cases...that surround this matter. Ms. Kahakalau: Yes. Mr. Adams: Madame Chair if I could encourage us to move forward with the vote...we have the opportunity on agenda item 7 to continue to have this conversation. Ms. Kahakalau: Alright I appreciate that...thank you...is there any further discussion in regards to Petition No. 2017-08? If not, I call for the question...all in favor of dismissing Petition No. 2017-08 say aye...any opposed? So that motion is carried. Thank you. Motion and Vote: Mr. Goodenow moved to dismiss the petition. Mr. Robinson seconded the motion. All members voted aye. Ms. Kahakalau: Now we're going into executive session which means we have to clear the room. Mr. Adams: Madame Chair...1 would move that we move into executive session. Motion and Vote: Mr. Adams moved to go into executive session. Mr. Robinson seconded the motion. All members voted aye. 11:15 a.m. The Board moved into executive session. 11:28 a.m. The Board returned into regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS 11:29 a.m. a. Review of the executive session minutes of August 7, 2017. Ms. Kahakalau: We've just concluded the executive session. Mr. Adams: Madame Chair I move approval of the executive session minutes of August 7, 2017. Mr. Robinson: Second. Ms. Kahakalau: Any further discussion? All in favor of approving the executive session minutes of August 7, 2017 say aye...any opposed? Motion is carried. Motion and Vote: Mr. Adams moved to approve the executive session minutes. Mr. Robinson seconded the motion. All members voted aye. 11:30 a.m. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawai`i County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Ms. Kahakalau: We also reviewed eight confidential financial disclosure forms with one of them being returned for re-review? Mr. Adams: I would move.... Mr. Yoshimoto: Need to say the number....that's okay...that's fine. Mr. Adams: I move acceptance of the confidential...of the reviews of the confidential financial disclosure forms as identified by the Chair with the one number that is number two that is being sent back for additional information or review. Mr. Goodenow: Second. Ms. Kahakalau: Any further discussion? All in favor say aye...any opposed? That motion is carried. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure forms with one being sent back for additional information. Mr. Goodenow seconded the motion. All members voted aye. 8 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII. (11:30 a.m.) Ms. Kahakalau: We're moving on to number seven on our agenda. Mr. Adams: Madame Chair. Ms. Kahakalau: Yes. Mr. Adams: I'd like to take the opportunity depending on whether the members actually have a little bit of time for us to kind of walk through...be helpful to be able to go through the rules and...I had an opportunity once again to meet with our counsel in a separate meeting...we threw some things around actually that...I wanted to bring up to the board for their consideration so that as we begin to put together a written amended rules...have some ideas about how everybody kind of feels about it. So if we could turn to our...if you happen to have your rules with you... Ms. Kahakalau: Rules of practice and procedures. Mr. Goodenow: I was in court. Mr. Adams: The first thing I would point out is that...in the code...you'll notice that the last section is the section that talks about administrative fines. In 2008, the County Council passed an ordinance...808-57 I think it is that...allowed the...imposition of administrative fines following formal hearings...actually it didn't identify it'd be formal hearings but in our rules it would definitely have to be formal hearings...and that would take affect that particular ordinance would take effect and become part of the code when we redo our rules of practice and procedures. I did a little bit of more looking at it...the...back in 2009 then Mayor Kenoi actually had prepared a letter provided it to the board on a number of things that his administration asked the board to consider...that never really made it anywhere in terms of any of those suggestions being carried out by the Council...only later one of those actually came in and that was the ordinance that took affect back in July 2016...having to do with contracting but in there...the letter referred to a couple of issues turns out that we will have to...be concerned about when the...administrative fines section hits our code. A couple of those had to do with the HRS Sections that referred to the HRS Section 91 and HRS Section 46-1.5 specifically sub 24 and it turns out that those will require likely require some type of appellate process and so the concern is 9 whether or not that's an appellate process meaning that in another board or commission at the County level or some process that allows for the appealing of a final agency decision that would then go to potential a circuit court. Neither of those options currently exist in statute and so...at least according to the work that the corporation counsel did in 2009 in preparation of this letter from the Mayor's office...that's probably some...there's some legislative fix that would need to be made before we actually were able to see that particular ordinance go into effect. So as we move forward with this...that's something for us to take into consideration and be concerned about. A second piece of that also is the idea that as we develop our rules of practice and procedures we'll need to make sure that our formal hearing rules are...in this case because we will then have the ability to sanction that they will provide a level of due process that is appropriate for the ability to sanction. Not sure that currently exists....not particularly our rules of evidence or lack of rules of evidence as it turns out...so as we move forward...we'll need to...part of the idea is to make sure that the draft rules that will come forward for the board's consideration will include a little bit more stringency I think in the formal hearing process since that's where any sanctions if they were going to be levied would come from..questions on that? Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: Thank you Madame Chair. So Mr. Adams...I kind of heard correctly because of this need for an appellate process...they'll have to be some legislative action on the part of the Council before we could...even if we wanted to implement these you know higher due process procedures and all that...we still would have to come back to the Council taking some sort of action? Mr. Adams: I think we'd have to go back to the State legislature. Mr. Goodenow: State legislature. Mr. Adams: These are HRS provisions. Mr. Goodenow: So in reality...it's...I mean the...while the Council has expressed its legislative intent that we should be able to fine...they really have not made it possible? Mr. Adams: It's actually.... Mr. Goodenow: They couldn't make it possible because of the State law. 10 Mr. Adams: It's a catch 22...it's more than intent...they passed the ordinance.... Mr. Goodenow: Right they did pass the ordinance. Mr. Adams: And so but given the crossing of actions with HRS 91 and 46-1.5 where there is this need...see the ordinance doesn't consider the need for an appellate process. Mr. Goodenow: I see right. Mr. Adams: 91 and 46-1 do. Mr. Goodenow: Right...so...well I don't know if...we're not saying that it's a flawed piece of legislation but.... Mr. Adams: These things happen all the time. Mr. Goodenow: So but really I mean I don't know as far as our efforts we want to do in relation to that I think all we can do is let the Council know...you've passed this but...I mean I don't know how we should proceed. Mr. Adams: I think the way we proceed is we'll setup the rules of practice and procedure which within our authority to setup so that...we'll assume that sanctioning authority is valid and then...you then operating according to your County law...County ordinance right. Mr. Goodenow: True. Mr. Adams: And then at the point where there's a need if there is ever a need for some type of appellate action because someone who is sanctioned said I don't agree or for right of reason they want to...then...typically anything that is a final agency decision based on Chevron goes to the judiciary...so even if it's not included in...so the question then what the judiciary does with it but that's outside of our frame work. Mr. Goodenow: Well my only concern is like you're setting up a process that we know can be challenged successfully...cause someone's gonna say hey I didn't have a clear right to appeal...this thing is facially flawed and.... Mr. Adams: I don't see that we have an option...it's in ordinance...it is part of what they...Council has said we have...they didn't say you don't 11 get...you have this sanction...we need to setup procedures to be able to handle the sanctioning. Mr. Goodenow: So you did talk to corp. counsel...I mean do we need a written opinion from them...I mean we could be exposing ourselves to some liability perhaps...we make our rules that we know really can't be enforced...we make someone go through all this process and then they...it gets throw out because there was some flaw in the system and then we've got to pay their fees and cost...the County...I...maybe that's...I don't know...it's just food for thought there. Mr. Adams: Food for thought. Mr. Goodenow: But I do agree with you Mr. Adams that I think we should follow the highest level of safe guards to ensure due processes.... Mr. Adams: Right. Mr. Goodenow: I do agree with you there...we should do certain things anyway. Mr. Adams: That's right. Mr. Goodenow: But... Mr. Adams: Okay...consider it brought to the attention of the board...the second piece here has to do with something we were just talking about that...it has to do with petitions review...right...so we did talk about...counsel and I talked about...concerns about how do you manage the ability to review petitions that are coming forward to us...there's been some concern that...we have seen not just recently but in the past...petitions that might be considered frivolous...we tossed around the idea of do you have the ability to sanction...even that term was talked about today. I have personally don't see that we have sanctionable...sanctioning authority on the petitions...it's laid out pretty well it seems to me in the code who can petition and as a result who we have jurisdiction over. The only way we would have any jurisdiction over a petitioner...we would have to try and establish that and that would be pretty hard given the Charter and the code...okay...just so you hear that...however we do have within the rules the ability to decide to reject right so currently in our rules 4.5 we have the ability to refuse to entertain a request for an advisory opinion and then I think also we have that ability in our...I have to go back and check for sure but I think in our...it doesn't necessarily identify in the other hearings that the declaratory or the informal hearings 12 however I would be inclined to make sure that said ability to refuse or reject a request would not just be associated with rule 4...it be associated with any petition...right...and so in there it talks about except in the case of a written request by the elected or appointed officer or employee, former officer or former employee concerned, the board may for good cause refuse to entertain a request for an advisory opinion. Without limiting the generality of the foregoing, the board may refuse to entertain a request where...sub one...the request is speculative or purely hypothetical and does not involve an actual situation...sub two...the request is frivolous or sub three...the request does not substantially comply with the requirements set out above...and in no case shall the board entertain a request that is no in writing and not signed by the person making the request his or her representative. And so we already have within our rules the ability to consider petitions for acceptance or for rejection based on these good cause measures. The questions than becomes...because it's only the board that can make these determinations...these petitions will show up on our agenda...right...and the concern then becomes is there a way to try and prevent the use of petitions particularly...now drawing up a hypothetical situation...particularly where you may have candidates...candidates become...find themselves once they have frled...they find themselves subject to our jurisdiction and it can be potentially used by whomever...to provide...you know to use petitions as bad publicity for example. There's no way that I'm aware of right now under our rules where the board has the ability to see these petitions prior to a Sunshine Law appropriate meeting...right...now there are other commissions in other jurisdictions within the State where the staff has the authority to review petitions and not bring them to agendas. That's not my understanding of the staff's authority currently...and we would to take a look at the code...I don't think it's out of the question for us to ask the staff to be able to do that if we decided we wanted to provide that authority within our rules. We'd have to take and make sure the code allows that but I'm not seeing places in the code that prevents that which is two different things. So I would ask the board to consider whether or not they would like see the staff have authority that it currently doesn't have which is reviewing petitions prior to us receiving them here in a Sunshine Law agendized meeting and making decisions on whether or not we should see them or not. That's really a question. Ms. Kahakalau: I just wanted to mention that you know the scenario that you talked about initially with us having to be here and to review whether something has merit...I think for me the issue is again hypothetical situation since we've already kind of had where there is a Hawai`i 13 County officer or employee involved and therefore our counsel cannot advise us and therefore we need to bring a counsel from another island which is cost to the tax payer which would then probably have to be the case right in such a situation because we do...we would want to have counsel that is considered unbiased for all intensive purposes...so I like your second scenario because the first scenario we would be back in that same situation in way as far as cost is concerned and time is concerned as well. Were if the staff would be able to vet some of these in what we would consider frivolous or speculative types of petitions then that would...was something that could be avoided so I just wanted to kind of point that out.. Mr. Goodenow: Maybe there could be some...the only issue with that is...staff is gonna have to...if it's corp. counsel then they're gonna have to get Maui corp. counsel to review it to see if it's frivolous or not right I mean.... Mr. Adams: If they were involved...right. Ms. Kahakalau: Yes. Mr. Goodenow: If it's a County employee. Ms. Kahakalau: But it wouldn't have to be having to fly over here.... Mr. Adams: No just corp. counsel's situation...right...any County employee. Mr. Goodenow: So you know my feelings is I agree with you Madame Chair I mean because...but there should be some protection in place perhaps staff could make a recommendation and it be put on executive session saying hey here's we recommended that it not be....I don't know...food for thought...the only thing is we might not ever see anything right...if corp. counsel gets a petition...I guess it would go through the Chair though maybe...but...you know we might...it might totally go under the radar without a board member actually reviewing anything which is a little problematic to me but I think we could compromise and have some system where they review and if they're not gonna put it on the agenda...somehow it's communicated to us. Ms. Kahakalau: Yes...or as you had mentioned that the board Chair... Mr. Robinson: Discretion. 14 Ms. Kahakalau: Is informed and then if they both agree you know then it dies sort of thing where as if there is a question and or an uncertainty then you know it would be the Chair's purview to put it on the agenda anyway...it could go then into an executive session questioning...discussion with our counsel in regards to the merit of it etc....rather than it be officially agendized as a petition right I mean that would could be a possibility. Mr. Goodenow: I suppose someone who's aggrieved by your decision right could still come to a meeting even though it's not on the agenda during public testimony could say hey I filed this and it's not being heard if they wanted too. Mr. Adams: I'm not sure that they could currently. Mr. Goodenow: Well it's not on the...right. Mr. Adams: If it's not on the agenda I don't know that your public testimony is allowable. Mr. Goodenow: The same...there is the Sunshine Law case law...I mean it's up to the Chair to allow it or not but there's case law that they could talk about anything pretty much. Mr. Adams: Okay. Mr. Goodenow: As long you know it's.... Ms. Kahakalau: So far our practice has been that when there is a statement from the public that we ask what agenda item they're speaking to but that could be something that could be added into the rules as well right... Mr. Adams: Sure. Ms. Kahakalau: You're saying that...the public...because we're talking three minutes you know so if there is something that the public feels very strongly about and it's not on our agenda for whatever reason...that they do have that opportunity to you know have their three minutes of... Mr. Adams: Sure. Ms. Kahakalau: Stating their concerns. Mr. Adams: Okay. Clearing of the air opportunity... 15 Ms. Kahakalau: Yeah...and given the you know if we look at our historic public input and you know I don't think it's gonna...we're gonna have twenty people showing up that type of thing. Mr. Adams: Okay so what I'm hearing is that there is some...interest in seeing this vetting...the key is what the procedures would look like so that we have...some kind of middle road. We're not looking at the State Commission where the staff has essentially total authority to do whatever they want to do and then they'll ask...they'll tell the board what they want them to do as it appears to me....and then...but at the same time something in between that and where we currently are which is everything that shows up...we have to look at in open session essentially. Mr. Robinson: I myself would much rather... Ms. Kahakalau: Could you please turn on your mic. Mr. Robinson: I myself would much rather see counsel review what's been presented if it's the feeling that it's frivolous at that discussion with the Chair...the Chair concurs and not put it on our agenda because like in this case we just had today with these two...I mean we could have dealt with that quite a while ago but we gave it the full effort. Mr. Adams: So I would...I feel compel tough word...I should say that as I am...also trying to do...prepare this I should let you know that I default to the other side of that spectrum I think...I tend see us as an opportunity for folks that don't have any other opportunity to deal with the big bad government situations and so I get it...it seems like some of this is just reading the paper and being upset and deciding that they're gonna roll a petition and...to be honest with you...that's kind of why we're here... Mr. Robinson: Right. Mr. Adams: To be that board that listens to that stuff at least in my view...not everybody's view...kind of my view. Ms. Kahakalau: Mr. Goodenow: Mr. Goodenow: Maybe...you know I really...I think my sentiments are with agreement with Mr. Adams but I feel that as long as there's some way to...we have notice so it's not secret...then we would be alright I mean maybe there's a way where the Chair could make initial determination that...it's up for dismissal so the parties don't 16 have to show up right I mean so no County worker is wasting time that you know it's agendized a certain way...this is for you know dismissal by Chair or something...then it's out there...but then people don't have to take off work cause they know oh we're not really gonna do anything and if we change our minds and vote the Chair and we say no we want a hearing well then it would be on the next agenda under you know.... Mr. Adams: Right. Mr. Goodenow: Something I don't know...I'm open though but I do sympathize with your comments Mr. Adams. Ms. Kahakalau: Mr. Robinson you have mic on...is there... Mr. Robinson: No. Ms. Kahakalau: I'm certainly very much open to that as well and I do agree also that you know I'm here to serve and you know to give people the opportunity to have their concerns heard so that's not a question at all...I think we're all agree on that matter. I think it's been you know that since I've been on this board we've had a history you know not once or twice but a history of I think that the time of the board you know...us as members and counsel and staff and various other County employees etc....being not once or twice but multiple times just wasted our time and I really...I'm a little bit...that does concern me so I do feel that creating a level where we can prevent to the extent possible further waste of time and money because our time is worth some money also right...you know creating a process that would reduce for sure hopefully eliminate but reduce that possibility of wasting our time and wasting our money by the petitioners just bringing up things that just really are have no merit. Mr. Adams: Sure...and that's part of the reason why there are in...judiciary rules...counsel I'm forgetting the name...those things are called again...what rules of... Mr. Goodenow: Civil procedures. Mr. Adams: Thank you...civil procedure...that you know there...you take into consideration that you take into consideration the cost associated with doing things when you're talking about frivolous types of potentially frivolous lawsuit kind of situations. Okay so... Mr. Robinson: Don't they provide for vexatious litigants as well? 17 Mr. Adams: Yup that part of it too. Okay so I hear that and we'll work with that. A couple of other items if everyone's okay with continuing. Ms. Kahakalau: Yes. Mr. Adams: We have a...we have a total...number of board members of five and we have had difficulty at least over the last three years I think since I've been on the board of meeting quorum on occasion and that isn't necessarily gonna be...it doesn't necessarily getting better even if you are at full five...all it takes is one to be absent for some reason and then you can have an issue with such as we have recently with one who maybe...feels that they need to recuse themselves and all of sudden you're at three again. If we raise the number of members to say seven...I'm not talking about doing it on a district level necessarily but say you raise it to seven it's...you think with that wouldn't necessarily help except that...you may actually improve your ability to not run into the quorum problem...if you had say seven and you're just missing...say you're missing one or two...your numbers still at only four at that point right...your need to...your voting requirement would be four and you can meet that easier than...with seven than you can meeting three with five just because the volume...how do you all feel about suggesting that...this is not a rules issue...this is something that would probably end up going to the...I guess this is an initial thought we haven't had this conversation...but in the process of looking at our quorum issues...if we had a couple more folks that were part of this board that might help with the ease of moving through petitions. Mr. Goodenow: I think logically...you know that makes sense...however...you know it's just filling the spots right I mean... Mr. Adams: Yes it's always been that. Mr. Goodenow: And that's always been an issue and I so I'm not sure.... Mr. Adams: We might make the problem worse because all of sudden we need a quorum of four and you don't have enough to fill it. Mr. Goodenow: Yeah and we only have three willing people and...so that's a tough one...and it would require a Charter amendment right if were or is it just the Code of Ethics...I'm not sure. Mr. Adams: I think it's...I don't know the answer...good question. Mr. Goodenow: Regardless we have to go to the Council for them to take some... 18 Mr. Adams: That's correct. Mr. Goodenow: To initiate it...so...I don't know...I think you know I would like to hear from.... Mr. Adams: Charter. Mr. Goodenow: No from corp. counsel or....oh you're saying the Charter? Mr. Adams: Yes. Mr. Goodenow: So then they have to go to the either...well could be the council or the Charter commission but...I'd like to hear from the executive branch as far as what is the problem with filling positions right...is it just that they're not doing it or...I'd like to know more about that before... Mr. Adams: We all know that is an exciting place to be...we do gods work here.... Ms. Kahakalau: I have to echo that...I think certainly since I've been on the board the issue hasn't been so much that people that are on the board aren't here is that we didn't have people that filled the slots on the board and therefore we didn't have quorum. Mr. Adams: That's right. Ms. Kahakalau: And having tried myself unsuccessfully at one point at least for over a year to try and work...I mean really and staff thank you so much you know working extremely hard with the executive office unsuccessfully you know to get people to be...and then even then when people were recommended ended up being people with criminal records and all kinds of things...I really agree with you that issue is really to streamline the executive piece part of how do people get on to these commissions you know...what is the behind the scenes process or...and especially making it a consistent thing so that it's not just dependent on the Mayor...it shouldn't be just hey you have this kind of Mayor therefore that...it should be something that no matter who the Mayor is you know that there's a specific kind of process...there should be a job description somewhere within the executive you know that says your responsibility is advertise it in some way you know saying there are positions available you know rather than somebody calling somebody or whatever the process may be right now which as I said even trying very hard to push...I can say I am clear on how people are contacted and things like that and even people that 19 we've recommended you know not being contacted etc....so it's a very nebulous process from where I'm sitting and so I would rather...then looking at expanding the board...try and work with the executive office to create some kind of a procedure or at least you know some kind of a process so that we all know okay and we have the...scenario coming up now you know where we're gonna lose one of our favorite member here relatively soon and I'm already concerned you know I mean in terms of how long will it take for a replacement... Mr. Adams: Right. Ms. Kahakalau: When can we...since we do know exactly when people's terms is over I mean some people can decide earlier but in general you know so far everybody has fulfilled their terms when we know that already you know can we start a head of time to recruit so that the transition is as smooth as possible and as little time as possible is left open of this transition so those are the kind of things that I would prefer that we engage in with the executive branch to see if there's a way that we have a specific person you know on that side that we work with and they know our deadline...they know when this happens and there's some kind of a clear understanding of how members are quote on quote recruited or whatever you want to call it and then approve etc....that's something that I'm currently really not clear about. Mr. Robinson: I know that now that there is request for your social security number...they did do a background check on you so it could be some people were reluctant if you have to give your social security number and have a background check done...it's like oh my gosh you know there be something in their background that they're concerned about so... Ms. Kahakalau: Then maybe they shouldn't be on the ethics council if they have those kinds of concerns...that's well noted thank you. Mr. Adams: How we feel about as other boards do having meetings on the west side also? To me I think we should be. Mr. Robinson: For me it's six and one half dozen one way or the other. Mr. Adams: I mean we have the ability to have if you can't make it you had the ability to come to another location and participate in the meeting and we're doing it already with our petitioners...I would assume that we'd also make that available to the respondents...it seems to 20 me that wouldn't be outside the realm of possibility for board members too. Ms. Kahakalau: Go ahead. Mr. Goodenow: The only...you know I...I sympathize and I understand that though it would be kind of...making an unfunded mandate for the executive to pay for it right...right if we change our rules...I guess they're gonna have to accommodate the staff and...you know do that and that may be something we want to do on principle and but perhaps we should get some input from the...executive branch...you know administration sorry. Mr. Robinson: I know the case of the water board which I just you know spent five years on and we would have two meetings in Hilo and one meeting in Kona...kind of went back and forth and since they built the County building there it was a little bit easier you know with facilities in place to sit but staff did have to transport all of their equipment to do the recordation and all of their equipment to come back so it was a little problem there so... Ms. Kahakalau: For me...this is on a personal note...strictly personal...I was quote on quote recruited with the fact that it would be two hours in Hilo and that's why I serving on the board and because I take care of my mom...it would be personal hardship for me to have to go somewhere else but I would since I agreed to serve but that's something then that we would have to be very clear on also...all I'm saying is you know whoever we ask to be on the board...but that's transparent ahead of time and then I think it's certainly something that I think certainly from a philosophical perspective as far as having the other side also have an opportunity to come and voice their concerns and things like that...I definitely see where the logic of having it on both sides of the island...I'm just not quite sure if I would be able to...it would be a case by case basis. Mr. Adams: Okay and then finally for me at least...We'll see some updates because of the technology we have nowadays as opposed to what was available in January 1990 which is where our current rules are at...we'll be making some modifications to the rules and take that into account...we've already talked about that to some degree before so...I appreciate you all being able...being willing to chat about this and or in the proper parlance hold discussion on this and...we'll continue to work this and try and get you something that is actually in writing sooner rather than later. 21 Ms. Kahakalau: I wanna thank you Mr. Adams for your work on this and also counsel for meeting together and moving the process forward...you know as you just said 1990 you know that's quite a long time ago and so to update and to you know revisit whatever our current rules are I think is an important process you know to stay current in various ways including technology so I do appreciate your time and your efforts and on also counsel and staff...to look at amending the rules of practice and procedures...I'm assuming we don't have to have any motion because this a ongoing process. 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (12:09 p.m.) Ms. Kahakalau: And then we're moving on to the agenda item which is discussion regarding amendments to the board of ethics monthly meeting schedule. Mr. Adams: So we've already talked about November 21...we did that last meeting so this one would be in regards to December meeting correct? And our standard meeting date would be Wednesday, 13`h at ten? Mr. Goodenow: I left my phone in the car. Mr. Adams: It's probably important actually...is it nearby? Mr. Goodenow: I think it's in my car...shall I run and get it? Mr. Robinson: I marked my calendar December the 12`h for some reason. Ms. Kahakalau: I have the 12th right now too. Ms. Hirayama: It's tentatively set for the 12`h. Mr. Goodenow: Right. Ms. Hirayama: Based on what I got from you. Mr. Goodenow: I'm okay with that...it would be though the next year's schedule I know the March Campaign Spending Commission had to change...I wasn't available at that but maybe we could do that at the next meeting. 22 Mr. Adams: So December 12th is what we had decided...did we decide that last meeting? Ms. Hirayama: No...it's just... Ms. Kahakalau: It was just a...it was that moving it to the Tuesday part of it for the remainder of this calendar year was kind of it...so I have it for Tuesday the 12th at 10:00 a.m. as always...and if that looks okay for everybody then we'll keep our next meeting be the November 21st at 10:00 a.m. and then the following December one will be December 12th at 10:00 a.m....counsel? Mr. Yoshimoto: So Madame Chair you need to suspend the rules and I think Mr. Adams... Mr. Adams: I would move to suspend the rules and move our regularly scheduled meeting scheduled for December 13`h 2nd Wednesday of month to the 2"d Tuesday, December 12`h. Mr. Robinson: Second. Ms. Kahakalau: Any further discussion? All in favor say aye...alright. Motion and Vote: Mr. Adams moved to suspend the rules and change the regular scheduled meeting to December 12. Mr. Robinson seconded the motion. All members voted aye. 9. ANNOUNCEMENTS (12:09 p.m.) Ms. Kahakalau: I'm checking if there's any other announcements beyond the one that I had already mentioned that our next monthly meeting is scheduled for November 21th at 10:00 a.m. right here in the Hawai`i County building. 10. ADJOURNMENT (12:10 p.m.) Ms. Kahakalau adjourned the meeting at 12:10 p.m. Respectfully submitted: rr\ Emily Hirai a, Sec Gary 23