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Home My WebLink About05-07-18 Regular Session Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Monday, May 7, 2018 10:07 a.m. to 12:23 p.m. Hawai‘i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai‘i 96720 Members and Staff Present: Kenneth Goodenow, Vice-Chair Rick Robinson, Member Nan Sumner-Mack, Member J Yoshimoto, Deputy Corporation Counsel Jennifer Kualii for Emily Hirayama, Secretary 1. CALL TO ORDER (10:07 a.m.) Mr. Goodenow: I’m now calling the May 7, 2018 meeting of the Board of Ethics of the County of Hawai‘i to order. For the record we should introduce ourselves...sorry I’m not used to chairing all the time so…I’m Ken Goodenow…Vice-Chair…acting Chair as Ms. Kahakalau is excused from the meeting… Ms. Sumner-Mack: I’m Nan Sumer-Mack…I’m new on the Council…Commission. Mr. Robinson: I’m Rick Robinson…board member. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:08 a.m.) Mr. Goodenow: Thank you…members first order of business…statements from the public on agenda items…we have one person who signed up to testify…Ms. Layne Novak…Petition No. 2018-04… Mr. Yoshimoto: She’s the petitioner… Mr. Goodenow: She’s the petitioner…mame you can testify now and make a statement or you can wait until we call the matter…since you’re the petitioner…we’ll call you up…you’re decision you’re do it now or later…your choice… Ms. Novak: (inaudible) Mr. Goodenow: Okay great…. 1 Ms. Novak: (inaudible) Mr. Goodenow: Yes please be at ease…thank you as a citizen for coming forward… Mr. Yoshimoto: Push the button…. Ms. Novak: The reason…. Mr. Goodenow: Oh mame…I’m sorry…you have to push button so there’s a red light… Ms. Novak: My name is Layne Novak and…I am the petitioner of…Section 2- 83 of the fair treatment section b-1…Section 2-85 of contracts….in December 14 which was a Thursday…Ms. Sheila Cadaoas of the Information Technology Department…was a manager at the time…she went into a contract for employment…to be…a project manager for the building permits system…at the time…I found it suspicious that she supposedly quit the next day which was a Friday…December 15 of 2017…and then…on Monday, December th 18 became employed as contractor for the County of Hawai‘i…from what I understand…she could not retire because according to the Code of Ethics…she would have to wait for a period of I think two years…you see I’m so nervous…I can’t not even think… Mr. Robinson: We’re with you…. Mr. Goodenow: We can look up the code…. Ms. Novak: Okay…so I believe she went into this contract in violation of the Ethics Code…since…being a “contractor”…I found out through the HGEA via email…that she is not a contracted employee…she is an exempt employee and she is entitled to benefits and inclusions of the Bargaining Unit 13 contract…however these benefits and rights under the contract are not exclusive so yet she is a contractor/employee with full benefits…I don’t understand that and I have been questioning my manager and trying to dig up some information regarding this and I am not sure how this works and how this got pushed through…now having said that…and…I have to have a disclosure saying that I am and analyst five with the Department of Information Technology…hence I know about this contract…I’ve spoken to everybody within the….almost everybody within the department…we have people in the department that can fill this role…they are full-time employees and I think I personally think that this contract is taking away from our 2 duties as civil service employees…I also want to know…I also want the board to know that…I have requested a number of my fellow co-workers and non-co-workers to come and sit in support of me and they were afraid to because they were afraid of retaliation either by the Mayor office or by our own department or some other department…so I stand alone in front of you…thank you… Ms. Goodenow: Thank you very much…okay…we will come back to the petition when the…when it’s up on the agenda… 3. APPROVAL OF THE REGULAR SESSION MINUTES OF MARCH 19, 2018. (10:13 a.m.) Mr. Goodenow: So the item for business is the approval of the regular session minutes of March 19, 2018…do I have a motion to approve? Mr. Robinson: Motion to approve. Mr. Goodenow: Thank you…second… Ms. Sumner-Mack: Second. Mr. Goodenow: Okay it’s been moved and seconded…all those in favor say aye…and opposed…hearing none said measure…said motion passes three to zero… Motion and Vote: Mr. Robinson moved to approve the minutes. Ms. Sumner-Mack seconded the motion. All members voted aye. 4. NEW BUSINESS (10:14 a.m.) a. Petition No. 2018-04: Initial review of a petition alleging that a County officer or employee is in violation of Section 2-83(b)(1) (Fair Treatment) and Section 2-85(Contracts) of the Hawai‘i County Code. Mr. Goodenow: Next item…new business…Petition No. 2018-04…okay members we’ve already heard from the petitioner…unless there’s something you want to add to what you just said…maybe we could call…the…I don’t know if the respondent wants to go first or the department where I’m open… Mr. Yoshimoto: So Mr. Chairman…Mr. Brilhante I believe is here representing… 3 Mr. Goodenow: Okay…great Mr. Brilhante…thank you for coming…we appreciate where…if maybe you could help enlighten us…understand what we’ve been informed of here… Mr. Brilhante, Jr: Good morning Chair and fellow ethics commission members…William Brilhante…I’m the Human Resources Director for the County of Hawai‘i…you know this request was first brought to our attention back in November 2017…and the request was that due to the fact that the County of Hawai‘i is…implementing a new program called Energov…it’s a new software program for plans review and permitting process and that you know was a significant endeavor involving you know several million dollar…financial obligation as well as the coordination for transitioning of you know all the…the information and documentation from the current Planning Department and Building Departments software which I believe is called Magnum to this…Magnet to this current system…so that process was…taking place and…there was a need identified to us for a project manager…they wanted…the County wanted to bring in a project manager to oversee the transition and that project manager you know had to have significant computer background not only with the County system because anytime you do a transition…you’d need knowledge of the system you’re working with as well as sufficient knowledge of the system that you’ll be bringing on board to make the transition and I believe it’s called migration smoother so it was…during the discussion with IT Department…it was identified that Sheila Cadaoas an employee in you know the….individual involved in the contract…was at that time desirous of submitting retirement…you know retirement papers…she…you know she was…she qualified for retirement and she wanted to retire but I believe the IT Director…had a discussion with her and you know kind of was able to…I guess reach an agreement which Sheila that if she would be able to come back as a part-time employee…no more than you know 80% of her full- time basis…so three thirds employee…come back and be the project manager for that migration of the new computer software for the Building Department…so they entered in…Sheila submitted her resignation…because she didn’t meet the six month requirement under the ERS entitlement…she wasn’t…she didn’t qualify to receive any retirement benefits but in exchange for that…Sheila signed a…employment contract…consulting program manager contract with the County of Hawai‘i and that was incorporated you know in this…and it’s actually called employment contract and that’s exactly what we’re doing when the County does that over and over again when there’s a…when there’s a specific need for a…you know for expertise and for 4 somebody with you know specific knowledge…the County has the options under the HRS…well the government entity has the options under the HRS…HRS 76-77-16 where there’s a project and it’s limited in scope not to exceed one year…the expected amount duration of time for that expertise is no more than one year…the County can identify that and select an exemption on the civil service code…so that’s the exact exemption the County used and they contracted with Ms. Cadaoas to you know as a contracted employee going forward because the position was for more than twenty hours a week and it was for a duration of longer than three months…again it was a one year contract…by law the County is required to provide benefits to the individual…so we provided…and the language specifically stated in the contract…we provided…the employee was entitled to…let me get that for you…the employee shall be a member of Bargaining Unit 13 and that was the correct information that HGEA provided to Ms. Novak…the petitioner…the employee shall be a member Bargaining Unit 13 and entitled to all rights and benefits as made…be prescribed under the collective bargaining agreement for the bargaining unit…so even though this individual wasn’t a “normal employee” because she’s under employment contract…we’re required by law to still provided the same types of benefits that a regular bargaining unit employee would obtain although she’s an exempt employee…so that’s the standard practice…there’s been you know no violation of any…up rules or you know ethics consideration…I think the code section that the petitioner was referring to in the Code of Ethics is for an individual who leaves employment with the County and takes that significant confidential information or specific knowledge of a particular item that they working on and they take it to the private sector and then they…you know they’re able to us that information you know to their advantage…you know I think that’s the section of the code that provision you know address…here it’s not the case because….because of Ms. Cadaoas’s education understanding and you know experience with the system…she provided a benefit to the County by agreeing to the employment contract so that’s not similar to what the code…the Ethics Code is prescribing…you know the situation there…so just to make that clear…. Mr. Goodenow: Okay….any questions members for Mr. Brilhante… Mr. Robinson: Yeah I do….Ms. Cadaoas was originally a County employee…so she’d been hired to work for the County….how long did she work for the County? 5 Mr. Brilhante: I don’t know the specific number of years…but it was sufficient enough that she could qualify for retirement through the County retirement system… Mr. Robinson: So she worked long enough that she could qualify for retirement. Mr. Brilhante: Correct. Mr. Robison: But she decided not to retire…. Mr. Brilhante: She…my understanding was…the offer of reduced…less than full- time position…because I think there was some personal you know matters that she needed to tend to was…attractive to her and that’s why she decided to accept the employment contract…. Mr. Robinson: So she terminated her employment…preserved her rights under the retirement system to retire and accepted this contract which required her to still be a member of the union and make her union payments and yet be bound by…is exempt from civil service…so she would’ve accrued the time under the contract as to her…retirement benefits… Mr. Brilhante: She would’ve done with…the amount of time she actually worked would have been credited back to her retirement because she never drew from her retirement… Mr. Robinson: Okay so the one year would’ve been added to what she had before… Mr. Brilhante: Correct…on a…the 80% basis… Mr. Robinson: Right… Mr. Brilhante: Which is you know normal…you know either the employees you know continue to you know work with the County and as long as they work with the County they draw their…you know they’re able to contribute to their retirement system…but…jut to let you know the retirement system is…you know we’re talking apples and oranges…the retirement system requirements are through the ERS and that’s separate from the rights and privileges under the collective bargaining agreement and just so that were clear that those are two separate items… Mr. Robinson: Right…so had she retired and taken this contract…she would’ve been eligible for retirement pay and the contract payment as well… 6 Mr. Brilhante: No the provision in the HRS is that if a State or County employee retires….there’s a six month waiting period before they can…you know…six month waiting period before they could…seek re- employment with the County or the State you know…before they can start drawing their retirement so because she didn’t have that six month waiting period…she could not start her drawing so she couldn’t double dip is I think your question is what you’re asking… Mr. Robinson: So if somebody were to retire…wait for a certain period of time and take a position with the County…they could double dip in essence… Mr. Brilhante: Well…under the current you know State law…there’s that six month waiting period… Mr. Robinson: Waiting period…. Mr. Brilhante: So as long as they meet that requirement then they can and we see that quite often…we see that you know retired police officers or alike where they come back…they wait their six months and then you know they come back as a special duty officer or something like that…and the reason is and the rational is because the individual employees…they gain so much knowledge and historical you know knowledge and institutional knowledge from their you know 25 – 30 years of you know serving in their capacity with the County…you know often times we hate to just see that…all that knowledge you know wasted so that’s why there’s that provision is…you know they’re beneficial and they’re valuable you know going forward and especially a situation like this where you have a position which is such limited in duration and require such a specific knowledge based that you know we’re…we’re fortunate to be able to take advantage of something like that where we bring somebody in on a part-time basis… Mr. Robinson: Yeah…. Mr. Brilhante: You know and benefits the County…. Mr. Robinson: Yeah I fully understand that part…so if somebody were to retire from the County and decide to run for public office…. Mr. Brilhante: Public office is a little different because they’re an appointed or elected official…. Mr. Robinson: So they’re under a different…. 7 Mr. Brilhante: So that’s an exemption…that’s an exemption under HRS 89-6… Mr. Robinson: So they could double dip at that point… Mr. Brilhante: Well I hate to use the term double dip but they serve the community in that capacity…. Mr. Goodenow: Two sources of income but it’s not like you’re getting anything extra…well… Mr. Robinson: Okay whatever….so just…may I go ahead…? Mr. Goodenow: Please…it’s all you… Mr. Robinson: I’m curious why she decided to just take the contract rather than just ask for a reduced hours…. Mr. Brilhante: There was that discussion where part of that discussion for reduced hours and…the IT Department felt that there was significant enough work and a strong enough you know need and demand for a full-time employee to serve in that position…that’s why they went for it so once you know Sheila resigned…then the department could I think in this case they TA an individual up to perform those duties of the old position…and that’s what they did…they freed up that position for someone to come and work on a full-time basis cause there was the need for a full-time employee… Mr. Robinson: So even though she was working thirty hours…it was considered full-time… Mr. Brilhante: No…no…she was working thirty hours for the department…Public Works…she wasn’t working the same…she wasn’t working in the same capacity or same department…she was contracted through the Department of Public Works… Mr. Robinson: Right so this was separate from where she was before… Mr. Brilhante: Originally…correct…. Mr. Robinson: That was what drew her to this contract…. Mr. Brilhante: Correct. Mr. Robinson: Okay…I understand…. Ms. Sumner-Mack: May I ask… 8 Mr. Goodenow: Yes please. Ms. Sumner-Mack: Could I ask if there were other employees…who could have performed these duties for Energov… Mr. Brilhante: You know that you would have to check with…the Department of Public Works Director or the IT Director…I’m not sure what the specifics you know requirement was for that…filling that position… Ms. Sumner-Mack: Do you have any idea what the…process of selection was…was there a competition….were several employees asked if…asked to apply for this… Mr. Brilhante: You know when it comes to contracted employees…again…you know I want to make clear that you not dealing with a civil service recruitment…you’re dealing with a contract employee and for contracted employees…you don’t have to go through that full you know recruitment and vetting process you know that you would with a civil service position because the term is limited in nature…you know in this one it’s not to exceed one year and you know the department head in those situations have discretion and latitude to you know hire somebody you know to fill the contract seat without having to meet all of the other…you know recruitment requirements of a civil service recruitment…but here…if you look at the scope of work…the individual has to meet…has to be able to meet and perform you know at that level of you know expertise going forward… Ms. Sumner-Mack: But that’s why I’m asking…if she was about to retire…whether other employees were considered….and I also wanted to ask if you’ll forgive me…was this compensation for the…contract or the contractor…a great deal more than she was getting…as an employee… Mr. Brilhante: No…and again to clear the record…Ms. Cadaoas didn’t retire…she resigned…she submitted her resignation and to this contract amount…total contract amount is less than what she was making on her previous position and in here previous position with the County… Ms. Sumner-Mack: $6,000 a month…. Mr. Brilhante: Yes…that’s less than she was an EM5 I believe with the County which is significantly more pay… 9 Ms. Sumner-Mack: Forgive my ignorance here…but I still…I’m confused because why was she…hired as the contractor and allowed to continue all the benefits of…employment…under…as an employee…I don’t understand that…confluence…. Mr. Brilhante: It’s because…the Hawai‘i…in Hawai‘i…collective bargaining units have a strong foot print in the makeup of the employment environment in the State of Hawai‘i and under HRS 89-6…the County is required to provide those types of benefits for employee who continues their…or enters into a contract situation and they would qualify for the benefits through HGEA whatever…she came in specifically as a unit 13…she was identified as a unit 13 member although she was coming in under an employment contract and you know that’s just the rules that you know we have to comply with…we don’t make the rules we just have to make sure that we follow them…if we…I can assure you if we didn’t provide the benefits…we’d be having another discussion in front of another entity who would be questioning why we didn’t provide her the benefits and I think we would lose that one… Ms. Sumner-Mack: Thank you. Mr. Goodenow: Okay…any further questions for the Director… Mr. Yoshimoto: Well board members…Sumner-Mack asked about Public Works…Mr. Simeon is the Director of Public Works…he’s present if you wanted to ask him questions… Mr. Goodenow: Right…do you want to make a statement…or…you don’t have to…you’re welcome to make a statement and members do you have any questions…. Ms. Sumner-Mack: Yeah maybe he has answers to the questions…. Mr. Goodenow: Alright…you know I would like to just state that I really appreciate the questioning because I think as the Board of Ethics we’re regular public members right…we smell something right…we want to investigate to…that’s part of our role and I welcome that…as far as the violation of the code however right if they’ve…it’s not a…we have to look at that in and of itself and our decision but I welcome how this meetings been going so I want to thank our new member and that too thank you. Mr. Simeon: Allan Simeon…I just wanted to add to what they said…Public Works…we do get a lot of complaints about building permits and having this Energov program…will…hopefully help us in getting 10 the processes better…that’s our part in this matter…basically we need somebody there to help us get this Energov done so that it will help us with our permitting…with building permits and I believe Ms. Cadaoas has been involved from the beginning so this one here will provide continuity…not to further delay…the delivery of the Energov system for our building permit process…thank you. Mr. Goodenow: Questions… Mr. Robinson: That speaks to the reason for the contract and I…all in favor of you hurrying up building permits…we just want to be sure that…it was done correctly…we refer to Mr. Brilhante that his opinion it was done correctly…you have other folks in your department that have been retained under this type of contract… Mr. Simeon: Not that I know where of…for this…yup and also for this program here…it’s a comprehensive program that will not only help DPW but also other departments such as Finance…Planning and DEM…so it’s more comprehensive than the one that we currently have right now as Magnet…okay…. Mr. Robinson: So this one is the only contract that you have contract for employment in your division…. Mr. Simeon: I’m not aware of anything…any other…yeah…basically I’ve just been in for the position for not a long time and I’m not aware of the other or have had any other contracts in the past… Mr. Robinson; Okay… Mr. Simeon: Thank you….. Mr. Robinson: Thank you…. Mr. Goodenow: I have one question if you’re done…sorry…just a…before I forget…sorry…you know when Sheila…Cadaoas…when she came to…sign the contract for employment right and there’s a provision in there about the Code of Ethics but did the department give her any advice I mean since she’s kind of the respondent here…did they give her any advice as to…yeah this is okay…this is normal…this is…legal…we’re gonna do this…I mean…what did you tell her…. Mr. Simeon: I’m sorry but I wasn’t really involved much in that discussion and I’m not aware that somebody said that to her…yeah… 11 Mr. Goodenow: Mr. Brilhante maybe you could come forward on that point and I should have asked you for the record…could you please state the nature of your representation of Ms. Cadaoas…just kind of you know so we have it clear on the record and…she apparently is…the…respondent…is that correct Mr. Yoshimoto… Mr. Yoshimoto: No…right now the respondents are…the HR Department…Public Works…and the Mayor’s office…because those are the signatories to the contract… Mr. Goodenow: So there’s no complaint about Ms….. Mr. Yoshimoto: That’s how I took the petition to mean…. Mr. Goodenow: Is that correct from the petitioner… Mr. Yoshimoto: You might want to clarify with her… Mr. Goodenow: Yeah maybe just so we all have that clear….she’s nodding here head yes…so it’s only the departments so I’m glad that’s clear…I’ll strike my last question…but…the HR Department…you were advised before the contract was signed…do you review these documents… Mr. Brilhante: You know for all these employment contracts…they all review through the Office of the Corporation Counsel going forward and they review the document for form and legality and that’s execution is a part of the contract…page two of the contract…so…you know we’ve had…we had a discussion…you know with the Office of the Corporation Counsel prior to you know going forward with this…and it was a determination that was made that you know the provisions and procedure was all you know above board you know going forward and it met the legal requirements…. Mr. Goodenow: So you were both advised by your attorneys that this was appropriate… Mr. Brilhante: Quite honestly…you know employment contracts is something that you know happens quite often in the County you know because often times like I said…you know unique situations may arise where a specific skill set is needed to that and like what Director Simeon has said is…here we wanted to maintain continuity…we’re in the middle of a transition and migration process you know Sheila had that historical knowledge with the program and I think if we you know if Sheila were to resign then 12 we lost that benefit of her knowledge…it would have significantly delayed you know the migration going forward and the enhancement and the ability to bring this program you know on board you know sooner it would have been much later.. Mr. Goodenow: Alright…thank you…I have no questions… Ms. Sumner-Mack: I’d like to ask the man from Public Works now…what was the…the basis was…what selection process was done in order to select this candidate…this person for this special assignment…I mean the duties are very nicely spelled out…was…were there other people in the department that could have performed these duties… Mr. Simeon: Not that I know of…yeah… Ms. Sumner-Mack: Not that you know of…how many employees are in the department that she came from…do you know… Ms. Novak: There is a total of twenty-one including the Director…. Ms. Sumner-Mack: Twenty-one… Ms. Novak: Yes…. Ms. Sumner-Mack: And so…who picked her…for this contract…. Mr. Brilhante: In response to your earlier question…you know I didn’t know the specific numbers…I was gonna said approximately twenty but if you look at you know Sheila…she’s one of only two EM5’s in the department and so she’s a higher level manager and there’s only…she’s one of two and they only…the people above her is the actual Director of the Department of IT…so she has a significant knowledge base and she was the employee primarily assigned to this project initially so you know I think and she…the only other EM5 manager oversaw completely different section of the IT Department…so if you’re saying was there I guess if the assumption or the information you’re trying to gather is was there somebody else who could do the job…I would say just based on the…you know the organizational structure of the IT Department I would say Sheila was by far the highest skilled candidate who would’ve have been considered for the job…. Ms. Sumner-Mack: Well it just seems as though without any process of selection that’s demonstrated at least in front of us about how…what skills she had 13 specifically…her experience…it kind of looks as though there may have been discrimination involved and that’s the concern here…. Mr. Brilhante: I think we have to be very careful when we say…when we make statements to the public again this is a public meeting that there may have been discrimination involved you know going forward I think that’s a very dangerous…assumption to place on the record…here all the requirements for employment contract was followed…you had somebody who had historical knowledge with the program with the project…she was looking to leave the County…she had a request because of personal reason…she didn’t want to continue to you know to work with the County on a full- time basis…so in order to obtain the most qualified and take advantage of here experience and knowledge with the project…an offer in you know substitute of working full-time was you know found and you know was negotiated and we’re able to you know maintain this individual going forward…again for the benefit of the entire public…the situation you’re referring to is when the County performs you know open competitive civil service recruitment…that’s not the case here…we’re just dealing with a one year contract you know which the HRS…the State laws specifically affords the Counties and the State to do and often times we do take advantage of that you know it’s just for the general operation you know to keep government functioning properly and efficiently and effectively…we have to be able to take advantage of those types of situations… Mr. Goodenow: No… Ms. Sumner-Mack: I didn’t mean to assume anything or assert anything…I’m just…but you know Ben Franklin said it’s not good enough to do the right thing…you need to be sure that it looks okay and maybe there should have been something in the contract that explained…why…it was handled the way it was or pointing out the laws that permit this kind of…because if it’s so unusual…that in it’s self looks rather suspicious…so anyways thank you very much…. Mr. Goodenow: Just to follow a little bit on that Mr. Brilhante…you know you said…sounded like you support the policies that the legislature has in their wisdom decided to do…how to do it…but really that is a policy call for the legislature as to these contracts right…the chapter whatever they’re called the…exemptions 89…contracts right…the…we see them quite a bit I know Mr. Levin…I don’t know if it’s ended right…he’s lobbying for the County…it’s the same type of contract as that…is that correct… 14 Mr. Brilhante: That’s correct and we use it…the County uses this type of contract employment quite often and then you gave a great example of former Senator…Andy Levin you know who is the…State legislature liaison and you know the Mayor has you know identified him to come in on a you know temporary basis to you know represent the County in front of the State legislators and you know again for the benefit of the County of Hawai‘i…you know when you look at these types of contracts…generally the contracts is for a limited term you know limited term in nature…here less than…no greater than twelve months…the other type of contracts we often see is the 89-day contract and the value with those contract is because it’s for 89-days…we don’t have to pay the benefits and you know all other you know issues that were afforded you know in this contract…but we knew this contract that…we knew that this project…the computer software migration was going to take longer than 89-days so to be clear and to be transparent…we didn’t want to engage in like three or four 89-day contracts you know going forward…to me that would’ve been more of a questionable practice…here…the HRS 76-77-16 specifically affords the County the option to enter into an employment contract as long as that contract is for no greater than one year and no greater than $750,000 and you know we met those requirements and we do it quite often…. Mr. Robinson: What section was that again…? Mr. Brilhante: 76-77-16…. Mr. Goodenow: HRS… Mr. Brilhante: HRS… Mr. Goodenow: Well we appreciate…I appreciate that…I don’t know if there’s further questions if not we can…I can go into…we’ll take a motion… Mr. Robinson: I can see where the confusion is because when we look in the County code…and we see the contracts on 2-85…and it says County agency may enter into a contract involving services, property, procure or dispose etc….the contract is awarded by competitive bidding and the contract is…pursuant to State public procurement code…so you’re saying then this contract state procurement code which was 76-77-16… Mr. Brilhante: That references to a different type of contract…that’s a purchase contract…here we have an employment contract… 15 Mr. Robinson: In a contract involving services…so a service would not be an employment contract it would called be a contractor services…. Mr. Brilhante: Correct. Mr. Goodenow: Right…. Mr. Robinson: So if you look at that and read that…it’s a little confusing as to whether or not…employment contract would be exempted… Mr. Brilhante: Right. Mr. Robinson: But you say for services…contract for services as opposed to a contract for employment…a contract for employment is specific to that item HRS 76-77-16… Mr. Brilhante: Well the…specific reference in the HRS is 76-77 and there’s a series 16 exemptions that you know afford the County to move forward with employment contracts… Mr. Goodenow: Alright…any further questions…seeing none…I will need a motion for a disposition of Petition No. 2018-04…thank you…as Chair I don’t think I can make one…I see the petitioner…I mean…I’ll be flexible here…you had a question or you want to make a statement… Mr. Robinson: Yeah please. Ms. Novak: I have…I have more comments…I’m really disappointed with what Mr. Brilhante had to say…the IT Director…is another story and I will not go into it at this time but…we’ve made multiple complaints against Sheila regarding this contract to the Director…the Director claims that we have no one else that can fill her shoes…we have no one else that knows anything else about the Magnet system…we don’t have anybody else that is qualified to handle to become the project manager…the program manager for this Energov project…I’ve been on multiple projects for various agencies…not necessarily with the County or with government…I’ve been in the private sector…I have come in at the middle of projects…at the tail end of projects because other employees have left abruptly…it’s not had to figure out what needs to be done…and I resent the fact that our Director is telling us we’re stupid…we’re so stupid that we can’t figure this out…we have another person in our department that knows the ins and outs of the Magnet system…he would be excellent for this project…we don’t need another person…we don’t need to spend $6,000 a 16 month for someone that…anybody else in our department can do…it’s not that hard…it’s not that difficult and I want to know exactly what she has been doing from December 18 on because there’s no…as far as I know…she’s putting in thirty hours but what is she doing in those thirty hours…no one knows…I have no idea…and I want…I want the departments to be transparent and by the way the contract was signed by Wil Okabe so it was initiated by the Mayor’s office not by Public Works…it was initiated by the Mayor’s office…why is the Mayor’s office getting involved with the Public Works department contract…I’m sorry I’m getting irritated but… Mr. Goodenow: I understand…. Ms. Novak: I’m just furious about this…I can spend $36,000 on equipment that we desperately need in the department but we’re spending it on…we’re doing wasteful spending as far as I’m concerned… Mr. Goodenow: Okay…thank you for that and as I kind of suggested earlier…part of the process I mean we’re really here at the narrow question of was the Ethics Code violated but it’s also important a broader sense for people to feel they can talk about issues and it’s a public meeting so you get to say it…I see Ms. Cook-Lauer there so the press gets to hear it…that’s part of this whole process all be it to you know…we’re really here only on the Code of Ethics but thank you…. Ms. Novak: And I think the Code of Ethics was violated… Mr. Goodenow: Okay…well we’ll move on to that now…we will need a motion though before further discussion…if I may get one….we can propose one for the sake of discussion and I might get after discussion you might want to vote down your own motion…I’ll allow that I mean…it would either be approve right or dismiss or we have options we should ask our counselor here…. Mr. Yoshimoto: Maybe we want to take a break so we can kind of gather our thoughts…sounds like no one’s ready to make a motion I think we should yeah…hold off on it… Mr. Robinson: I want to read HRS 76-77-16… Mr. Yoshimoto: Why don’t we take a break…. Mr. Goodenow: Well we could continue this matter or…. 17 Mr. Yoshimoto: Well that’s up…. Mr. Goodenow: Well I’ll call…five minute recess…thank you… 10:50 a.m. The Board took a short recess. * * * * * 10:56 a.m. The Board returned from recess. Mr. Goodenow: I will call this meeting back to order. Now as Chair…I’m supposed to not really participate in much of the you know let everyone speak first…I’m not supposed to make motions but if no one has a motion to make I’m willing to make one if we would suspend the rules…it would Robert’s Rules in this case and I will make a motion if you want to go that route or if someone has a motion but we or it can be a motion to continue but we need to move forward… Ms. Sumner-Mack: I have a comment. Mr. Goodenow: Sure. Ms. Sumner-Mack: I’m wondering what…the petitioner would like to result from this…I’m reading this contract which says that…continuation of a contract beyond the close of business on June 15, 2018 shall be subject to the availability of funds and re-certification of such funds by the Finance Director…what is it that you want…. th Ms. Novak: I would like the contract terminated on June 15 so as it stands now…she has a month to prepare someone else in that position and th have the contract terminated on June 15… Ms. Sumner-Mack: On what grounds…. Ms. Novak: We no longer need her…she has been hoarding the information…the information is not like I said in my previous testimony…the responsibilities of the project manager or the program manager are not difficult…anybody can do it…anybody in our department can step up and become a program manager…what it…what that position essentially does is facilitates dialogue between the vendors and County employees…County staff…anybody can do that…you don’t need intricate…detailed knowledge of the current Magnet system…the new Energov system…yes this is going to be a sizable project because it will involve multiple agencies…it’s not just Public Works…it will involve Planning…it will involve Environmental Management…so 18 on and so forth…but…to pay someone $6,000 a month to just get on the phone and say okay we need to have a meeting…get on the phone to staff…okay we need to have a meeting on this day…this day working for you okay fine…that’s silly… Mr. Goodenow: Anymore questions for the petitioner…if not then I would either like someone to make a motion or move to suspend the rules so I can… Ms. Sumner-Mack: I move to suspend the rules so you can make a motion. Mr. Goodenow: Alright… Mr. Robinson: Second. Mr. Yoshimoto: You need to vote on that… Mr. Goodenow: Okay so there’s been a motion…second to suspend the rules to allow the Chair to make a motion…discussion…seeing none all those in favor say aye…any opposed…the vote passes three to zero… Motion and Vote: Ms. Sumner-Mack moved to suspend the rules to allow the Chair to make a motion. Mr. Robinson seconded the motion. All members voted aye. Mr. Goodenow: Okay as the rules have been suspended…I am going to make a motion and again this is for discussion so we can…I move that we find that there’s been no violation of the Code of Ethics and therefore that the petition be…what’s the property language…denied/dismissed whichever it is…which do you prefer… Mr. Yoshimoto: Your choice… Mr. Goodenow: Well I’ve been doing this now for some time…you’d think I’d know but I’m blanking out…well let’s just say dismissed. Mr. Yoshimoto: Are you going to cite any code provisions so we can… Mr. Goodenow: During the discussion I think that can all come out…. Mr. Yoshimoto: Okay. Ms. Sumner-Mack: Will there be other discussions or that’s it… 19 Mr. Goodenow: Yes…that’s before…no we’re gonna have the full discussion on all the merits now…but we need a second…discussion can only come after the motion been made. Mr. Robinson: I’ll make a second for the purposes of discussion. Mr. Goodenow: Great…okay…so we’re on discussion… Mr. Robinson: Okay….I have one question for Mr. Brilhante…this HRS 76-77 and the 16 exemptions that are there…in reading through those exemptions they talk about you know positions in the office of the Mayor…provide the positions shall be included classification etc…its got 17 exemptions…item 7 says positions filled by persons employed by contracts were the personnel director and I assume that would be considered you…has certified that the services special or unique is essential to the public interest and because of the circumstances surrounding it’s fulfillment…personnel to perform the service cannot be recruited through normal civil service procedures provided no contract pursuant to this paragraph shall be for any period exceeding one year…so with that be what you’re certification was that this position was unique and no person could be recruited through the civil service system and it’s essential to the public interest and it would not last more than one year… Mr. Brilhante: You know…looking back and my recollection was that that exemption was considered and you know it was vetted…as far as you know moving forward with the contract but I think ultimately the determination was made that…there have been in the pass programs that were supervised or were managed by somebody from the IT Department if you…if we look back immediately the most recent was that Sheila was actually supervising the program you know the Energov migration program before her resignation so for us to say that the job was so unique it wasn’t historically performed by a civil servant would not have been accurate so that exemption would exemption 7 would not have applied to this situation… Mr. Robinson: Okay…then exemption that would have applied…exemption… Mr. Brilhante: 16…and you know in the contract…we specifically request that an attachment describing the validation for the exemption be made part of the contract and we here in the document… 20 Mr. Goodenow: You know you keep referring to the document…did we get that…do we…I’m not sure we have that…was it included with our agenda…I don’t think so… Mr. Yoshimoto: All we have is what was provided to us by the petitioner… Mr. Goodenow: Right…that’s a two page only document…that does not…oh no it does exhibit a…so this is the contract…I don’t see the part that he’s talking about… Mr. Brilhante: It should have been labeled as attachment “d” as in delta… Mr. Yoshimoto: We don’t have that… Mr. Goodenow: No…we don’t have that…it would help us if we could get a full copy if you don’t mind for our records and for our members to review…any other questions for Mr. Brilhante or discussion…I’m sorry Mr. Robinson… Ms. Sumner-Mack: I have a question…. Mr. Goodenow: Go ahead… Ms. Sumner-Mack: Is it anticipated Mr. Brilhante that…the Finance Director will…decide to continue that there are funds available…. Mr. Brilhante: You know…just again for clarification and for you know for everybody’s edification…the reason that that provision was incorporated in this contract that language specific provision was incorporated into this contract was because this contract is somewhat unique and that it involves a time period that transcends the fiscal year of the County and the County is not allowed to encumber fund that would be used for a future fiscal year in their current budget…the County has to balance their budget on an annual basis so since this contract involved the time period that would extend beyond the June 30, 2018 deadline…then the Finance Director has to make a determination at the time of the end of the fiscal year as to whether or not there are sufficient funds available to continue the contract… Ms. Sumner-Mack: Okay I understand that…thank you very much…but I’m just…I’m still wondering whether any type of evaluation was anticipated at the end of the first six months to see…how the project was…going whether it was performing as anticipated…she was making the contact…she was you know fulfilling the obligations…is there going to be any evaluation at in June… 21 Mr. Brilhante: That would be a question for the department who’s actually oversee the contract and my assumption and I would hope that the you know the department who is supervising or overseeing this contract would perform regular you know job performance reviews like any other employee in the County and you know they would have you know a regular you know assessment as to whether or not you know this individual is performing appropriately…there’s provisions in the contract that says you know sets forth the proposition for if an individual is not performing up to expectations then the County can terminate the contract so you know I’m sure that the department you know is managing the contract as you know reasonably fit… Ms. Sumner-Mack: So who would do that evaluation...? Mr. Brilhante: You would have to discuss that with the department head…I’m not sure you know through their management how who’s specifically… Ms. Sumner-Mack: Is the department head here….the Public Works Department…okay… Mr. Brilhante: Correct. Mr. Simeon: We are actually working with IT as far as the performance evaluation or making sure that…. Ms. Sumner-Mack: Excuse me I didn’t understand… Mr. Simeon: We are working with the Department of Technology as far as evaluation and making sure that Ms. Cadaoas is performing what is required yeah… Ms. Sumner-Mack: Okay…so it’s your opinion or your that if you found it…to be…either inadequate or virtually completed and that you decided that the contractor was no longer needed that you would feel comfortable terminating the contract at the end of June or middle June… Mr. Simeon: With…of course we would have to discuss with whoever’s involved with the contract and making sure that the (inaudible) were done and…because what we don’t want to do is to prematurely cancel the contract and we need more services yeah… Ms. Sumner-Mack: Thank you very much… 22 Mr. Simeon: Thank you. Mr. Goodenow: Okay any further questions…seeing none I’ll just make a brief statement here and then I’d like to ask the petitioner to come forward…you know…like I said…I’m really…grateful to the line of questioning we’ve had and I am grateful to the…both directors for the ability for the public to know kind what goes in behind the scenes…this kind of system…but I really feel what we’re dealing here…I mean…you’re looking at employment issues…you’re looking at contracting issues…all of this…being legal right…you make question the policy…we might think wow was it really worth it once they pay the vacation…time and did they really know when they signed up that you know…that’s all policy issues…as far as strictly looking at the Code of Ethics…I would like the petitioner to come forward so we could go…look at…the specific sections that are being alleged there’s a violation and…if I may I’d like to suggest that we look at…post-employment…which is…where is that… Mr. Yoshimoto: 2-91.2 Mr. Goodenow: Thank you… Mr. Yoshimoto: Also Mr. Chairman before I forget…if we could acknowledge for the record that the board members have received that attachment “d” as in dog so that’s under review as well… Mr. Goodenow: Thank you for that…Mr. Yoshimoto…so…looking at the post- employment right…what I see here though is that…this doesn’t really apply someone who’s being employed by the County right…if they went…from County to a private job…right…that would cover…I don’t know if you want to specifically point out any provisions here or anything you want us to think about solely on the post-employment language in the code… Ms. Novak: The only thing that I looked at which is what Mr. Robinson pointed out is under contracts involving services…she has providing a service… Mr. Goodenow: Okay so you’re looking under not…post-employment that she worked…she got another job with less than year…that’s not an issue for you….I mean speaking as far as your complaint…right… Ms. Novak: No… 23 Mr. Goodenow: Okay right…thank you…and so we go to 2-85…that’s the contract section…and…right…a County agency may enter into a contract involving services or property or procure, dispose of goods or services or construction with an officer or employee or a business in which an officer or employees immediate family has a controlling interest…so to me that sounds like we’re talking about a situation where…I’m an employee and my brother owns a company and we’re gonna do a contract right or vice-versa my brother’s the employee and I’m doing the contract…so it doesn’t really fit maybe your situation and…but I want to make sure I get it straight from you what you feel in 2-85 has been violated so we can really address it to be sure that you’re satisfied with our decision…. Ms. Novak: The…in that section it says…it’s by any contract for services but it also says…provided that any…provided that in any action to avoid a contract pursuant to this section…the interest of third parties maybe damaged…I’m a third party…I’m going to be damaged…I’m a tax payer…I’m going to be damaged… Mr. Goodenow: Sorry…you want to respond to that… Mr. Robinson: I just want to go back and…you’re right you’re a tax payer like all are tax payers but you know in 2-85 contracts…where it says may not enter into a contract involving services or property etc…with an officer, an employee or business so it’s…not just a corporation…it would be or employee or with an officer, an employee or a business…. Mr. Goodenow: Right with an officer or employees immediate family has a controlling interest but she’s not an employee… Mr. Robinson: With an officer, an employee or a business and then the business that part is in the entirety or business in which an officer or employee or the officer’s immediate family has controlling interest…but it talks about an officer, an employee or a business and so in this case it’s talking about an employee and in her mind…correct me if I’m wrong but you’re saying this being with an individual so you’re saying this contract with the individual… Ms. Novak: With an individual employee… Mr. Robinson: Right so as I understand… Ms. Novak: That’s how I’m looking at it… 24 Mr. Robinson: So as I understand Ms. Cadaoas gonna resign and the County says don’t resign… Ms. Novak: No…that’s incorrect…she was going to retire and they told her not to retire to resign instead so that she could continue working without the six month period.. Mr. Robinson: Okay…. Ms. Novak: That she would not be allowed to work for the County… Mr. Goodenow: Right but that would be not be allowed and collect retirement…it’s not that she’s not allowed it’s just to qualify…. Ms. Novak: Correct. Mr. Goodenow: To receive retirement she would have to wait six months…but there’s no prohibition on someone resigning and being hired the next day…there is no prohibition on that… Mr. Robinson: Right. Mr. Goodenow: But and again I think that the issue and Mr. Brilhante or our Corp. Counsel correct me if I’m wrong…right that’s the whole thing about this being a contract for services is different from an employment contract which is I think a well-recognized…I don’t know term right I mean in HR employment contract is not a contract for services right…this only says contract for services but even if it were…you were saying well this is her…even if it had been…it’s not like she’s anyone’s relative…I don’t see that so unless there’s anything else on 2-85 I think we should look at fair treatment… Mr. Robinson: Which is… Mr. Goodenow: Which is…2-83…and here’s something I didn’t understand fully that I wanted to ask you about…your allegation of about fair treatment is…that…Public Works employed her just cause she was there or…could you tell us exactly what you mean by violating fair treatment… Ms. Novak: I’m going on assumptions…someone from the Mayor’s office contacted her asking we could employ their son to work for the department and I believe based on what I see in this contract…this is why the Mayor’s office got involved and signed this contract…now it had nothing to do with Public Works…Public 25 Works suddenly said…was told by the Mayor and again this is all hearsay…but I’m hearing it not just from one person but multiple sources that Public Works had to scramble to find money to pay for this contract…to me that is not fair treatment…you’re getting…like hey how about…hiring my kid and I’ll give you this…I’ll get you this contract…to me that’s not fair treatment… Mr. Goodenow: Well… Ms. Novak: Why did it get…you know again…anybody can…if you read the description of responsibilities…it’s very generalized…it’s very generic…and like I said I’ve worked at multiple companies where I’ve had to be a project manager…get involved in the middle…not from the very beginning…not from day one but from the middle…sometimes from the very end where we are ready to implement a software application and I’ve had to get up to snuff and get up to speed in order to figure out what the you know what the intricacies are of the old system and the new system…it wasn’t hard but it was time consuming….can people that in our department yes…yeah they can… Mr. Goodenow: Thank you… Ms. Novak: Sorry. Mr. Goodenow: No no…and I didn’t mean to interrupt but I’m sorry I’m just trying to focus on the fair treatment…now the information that you’ve brought forward about the son and this…none of that’s in the petition… Ms. Novak: No…cause I don’t have evidence…. Mr. Goodenow: So…you know we can’t really use that okay so I’ll gonna set that aside…but…the real…you know the department from what I hear from them and please correct me if I’m wrong…department and Mr. Brilhante is…yeah they wanted her because of her expertise…there’s nothing wrong in trying to recruit her…right… Ms. Novak: No. Mr. Goodenow: That’s not…like you’re favoring her…it’s just you want her and that’s kind of their position and…yours is again I don’t know where you got to look at the code…where exactly did a violation take place of the code and I know you’re not a lawyer but if you want time to read again… 26 Ms. Novak: No. Mr. Goodenow: If you want to show us the language…the sections… Ms. Novak: Seeking other employment…this section 2-83(b)(1)…seeking other employment or contract for services for oneself…now how she did that was… Mr. Goodenow: Can I read this full…so it’s “b”… Ms. Novak: Yes…. Mr. Goodenow: No officer or employee shall use or attempt to use the officers or employee’s official position to secure or grant unwarranted privileges, exemptions, advantages, contracts, or treatment for oneself or others, including but not limited to the following…seeking other employment or contract for services for oneself by the use or attempted use of the officer’s or employee’s office or position so… Ms. Novak: What she did was…she knew she was going to retire…she knew what she either gonna retire or quit…she…wanted this contract and so for a whole year she was the only person involved in this project…this Energov project…we…I mean everybody knew she was gonna go one way or the other…so she specifically allowed herself because she had no one else to…report to so she went to all the meetings…she got involved in this project to the point where everybody thought oh we need to keep her on because she’s so valuable to this project…no she isn’t… Mr. Goodenow: Do you dispute though Mr. Brilhante statement that actually the department or actually sought her and it wasn’t really her idea but it was the department’s idea to do it…again the issue here is she is not the respondent…it’s only…did the department use it’s position right but that doesn’t really fit…I’m sorry I respect what you’re trying to do and say…but it doesn’t really fit the code here that it’s not really a violation…that’s just how I see it…I don’t know if there any other questions or…I’m fulling encourage further discussion…I don’t know too if our Corp. Counsel wants to chime in on this but…I mean you gotta find a provision and again it’s not that she used her position because she’s not the party…is did the department and that doesn’t apply…their not an employee right…it would be maybe because the director is her friend or something and you have some evidence you really…we don’t really have that… 27 Ms. Novak: I have no evidence…I have no evidence… Mr. Goodenow: Yeah…alright… Ms. Sumner-Mack: What about the Mayor’s office…why did they…did they initiate…was… Mr. Goodenow: Well…you’re allowed to make any…I mean discussion and when it’s no longer board business we can at it but for now…I guess we just have to struggle on here…that’s my position any other comments…motion is to find no violation and dismiss the petition… Ms. Sumner-Mack: With caution… Mr. Goodenow: Well…but you know what I like is cause this is really where the public has a chance to say hey we don’t like this right how else would anyone know so I think it’s appropriate you’ve come forward…hey the department’s gonna be looking when it comes time to renew you know they’re gonna looking I think it’s served it’s purpose even if it’s not really a violation…I feel good about that… Mr. Robinson: I have ultimate respect for you for bringing this I mean it takes a lot to do that… Ms. Novak: Yeah… Mr. Robinson: Yeah so…. Ms. Novak: Yes it did… Mr. Robinson: I really have a lot of respect for you for doing that… Ms. Novak: I hope there’s no retaliation by anybody… Mr. Robinson: If there is…you be sure to let us know… Ms. Novak: Oh I will… Ms. Sumner-Mack: Retaliation would definitely be a violation of the Code of Ethics… Ms. Novak: Yes…. Mr. Goodenow: Okay there you go…. 28 Ms. Novak: But you know it’s…it’s sneaky stuff… Mr. Goodenow: Alright… Ms. Novak: Thank you for your time…I really appreciate it…and I understand the dismissal… Mr. Robinson: We haven’t voted yet… Ms. Novak: Oh sorry. Mr. Goodenow: Yes right now…so any further discussion…seeing none…all those… Mr. Yoshimoto: So we’re making clear for the record so the order’s clear…can you restate what the board is finding… Mr. Goodenow: The board is finding that there is no… Ms. Sumner-Mack: Appears…that’s a good word…. Mr. Goodenow: To be no violation by the department of…who’s the respondent here again…the Mayor’s office…Public Works…or the Department of Human Resources…of the Code of Ethics…regarding the County contract where Sheila Cadaoas… Mr. Yoshimoto: Cadaoas and you’re also citing Section 2-83(b)(1) as not being violated specifically…. Mr. Goodenow: Yeah and specifically and 2-85 for the reasons in discussion… Mr. Yoshimoto: Right and 2-91.2 right… Mr. Goodenow: Yes… Mr. Robinson: So what were the ones that you were citing…? Mr. Goodenow: That would the fair treatment code 2-83(b)(1) and the 2-85 contracts section and what was the other one… Mr. Yoshimoto: 2-91.2 Mr. Goodenow: 2-91.2 Mr. Yoshimoto: You’re talking about post-employment right… 29 Mr. Goodenow: Post-employment right…thank you…so and thank you before we have any final vote we should always ask Corp. Counsel…. Mr. Yoshimoto: Just so it’s clear… Mr. Goodenow: If they have anything they want to add because he’s gotta write the order and anything you feel we should… Mr. Yoshimoto: As long as you’re ready to vote and as a reminder so we would need a unanimous vote for the motion to carried if it does not then you know I recommend that we continue this matter to another hearing.. Mr. Goodenow: Alright…well anyway I’ll take my chances…all those in favor say aye… Ms. Sumner-Mack: Aye I guess… Mr. Goodenow: Do we have Kanalua…you’re gonna be a no… Mr. Robinson: I’m gonna be a no… Mr. Goodenow: Alright well then… Ms. Sumner-Mack: Well I’m going to be a no too…I don’t agree with that…I think we should continue…. Mr. Robinson: I think we should continue… Mr. Goodenow: Alright…so we already had the vote though right… Mr. Yoshimoto: What is the vote? Mr. Goodenow: The vote was to dismiss…its one to two in favor… Motion and Vote: Mr. Goodenow moved that there was no violation of Sections 2-83(b)(1), 2-85 and 2-91.2 of the Code. Mr. Robinson seconded the motion. Vice-Chair Goodenow voted aye. Mr. Robinson and Ms. Sumner-Mack vote no. Motion does not carry. Mr. Yoshimoto: Okay. Mr. Goodenow: So it’s not dismissed so now may I have a motion to continue to our next meeting…I would advise that to give Corp. Counsel, HR and other people adequate opportunity to provide their input. Mr. Robinson: I’ll make a motion to continue. 30 Ms. Sumner-Mack: I’ll second that… Mr. Goodenow: Okay…any discussion…seeing none… Mr. Yoshimoto: Hold on…so you have parties here now…is there anything in particular the board would like to receive for the next meeting whether it’s other information…people… Mr. Goodenow: Good question…. Mr. Yoshimoto: No would be a good time to… Mr. Robinson: Can I say what I’d like to request… Mr. Goodenow: Yes…just some clarity on HRS…76-77-16…clarity on how that… th Ms. Sumner-Mack: 13… th Mr. Robinson: 13…how that really applies and then also…on 2-83(b)(1)...just some clarity there…if there was any…you know what the reasoning there…that’s the only two things for me that I just like clarity on… Mr. Goodenow: Okay…anything else….and I’d just also liked to…you know remind petitioner right that technically if we go forward with a hearing right the burden of proof is on you regarding proof that it was violated so though we do have some ability to investigate on our own at this time but just putting that forward…okay… Mr. Yoshimoto: Okay…so…just in the discussion purposes to I know Mr. Chairman you mentioned…something about who the respondents are right so the respondents right now as I saw from reading the petition…was the three departments that were noticed… Mr. Goodenow: Yes. Mr. Yoshimoto: Right…just so the petitioner understands that because you had talked about 2-83(b)(1) as applying to an officer or employee but that can be subject to amendments as well… Mr. Goodenow: Yes. Mr. Yoshimoto: Right just so that it’s clear…. Mr. Goodenow: You understand that…it’s not Sheila Cadaoas it’s only Department of HR, Department of Public Works and the Mayor’s office… 31 Ms. Novak: Actually my petition is only against the Mayor’s office… Mr. Goodenow: Oh… Ms. Novak: It did not include HR or DPW. Mr. Yoshimoto: That’s good for the record then okay… Mr. Goodenow: So…we’re going to keep it…it’s not amended…it’s just the Mayor’s office… Mr. Yoshimoto: That’s because it wasn’t clear from looking at the petition…I know it may… Mr. Goodenow: How do you want it… Ms. Novak: I don’t care…if you want Human Resources here…if you want Public Works here…that’s fine with me… Mr. Goodenow: Sure either way they’ll be here but… Mr. Robinson: Well Human Resources has to be here…they’re the administrative body for the employment of the County so they would need to be here even if it was…. Mr. Goodenow: You know they don’t actually have much to do except give advice right as far as whether it’s legal or not…it’s really the department I would say right…that should be the respondent…not HR…but it’s good that he comes… Mr. Robinson: Oh absolutely… Mr. Brilhante: (Inaudible) Mr. Goodenow: So at your request…we’re gonna add the department…we’re gonna have the Mayor’s office and Department of Public Works… Ms. Novak: That’s fine… Mr. Goodenow: Great…okay… Ms. Novak: The reason why I made the original petition against the Mayor’s office is because they signed the contract…and that was the only reason why I brought it in the Mayor’s office because I question the reason for them to even be involved a contract that had nothing 32 to do with the Mayor’s office but had everything to do with Public Works… Mr. Goodenow: Alright…Mr. Brilhante you want to respond to that… Mr. Brilhante: Yes…thank you very much…William Brilhante…you know just again for our own edification…the Mayor is the only entity in the County who can bind the County under a contract…so every contract whether it be services, employment, goods or whatever…has to be executed by the Mayor and in this case my understanding is the Managing Director who has the power under…thru delegation you know sign this contract but if you look here on the left…generally the department requesting approval of the contract is identified here as recommended approval and that’s where you see Allan Simeon’s name, Director of Public Works…so that’s the department who actually requested the contract and thru… Mr. Goodenow: Thank you… Mr. Brilhante: Action of law…that’s where the Mayor gets involved… Mr. Goodenow: Okay… Mr. Brilhante: Thank you. Mr. Goodenow: We have a pending motion on the floor… Mr. Yoshimoto: One more thing to be complete… Mr. Goodenow: Sure. Mr. Yoshimoto: Did the board want somebody from IT to be here too as well…are there any relevant issues that…I just ask the question because IT…yeah… Mr. Goodenow: I see our member here at the end…so let’s do that… Mr. Yoshimoto: So we’ll send a notice to the Director of IT for the next meeting. Mr. Goodenow: Thank you. Mr. Yoshimoto: Okay. 33 Mr. Goodenow: Any other things…any request for the next meeting so the motion is that we continue this matter to the next regularly scheduled meeting of the Board of Ethics… Ms. Sumner-Mack: Which is when…do we know yet…. Mr. Goodenow: I believe it’s June…. Ms. Sumner-Mack: June 12 Mr. Goodenow: Ten o’clock….June 12…ten o’clock…our secretary request the IT Department to come as well and that Mr. Brilhante if you would please come as well as Director of Public Works…anything else…okay all those in favor say aye…any opposed…motion carries three to zero…thank you… Motion and Vote: Mr. Robinson moved to continue matter to the next meeting. Ms. Sumner-Mack seconded the motion. All members voted aye. 11:33 a.m. b. Petition No. 2018-05: Request for an informal advisory opinion from a County Officer or employee, to determine whether there would be a conflict of interest by participating in legislation before the Hawai‘i County Council. Mr. Goodenow: Moving on the agenda Petition No. 2018-05. Council member Richards thank you for coming...Please have a seat…if you’d like to make a statement that would be great… Mr. Richards: Thank you board for the opportunity to come before you…my name’s Tim Richards…I am a sitting Councilman from District 9 and I do appreciate this opportunity to come before you and pose a question…being born and raised in the County and specifically in District 9…I’ve wondered when this might come before me…what I’m asking about a potential or even an illusion of conflict of interest…had been born and raised here…own private business for almost thirty years…with my families connections and backgrounds and just being part of the community for quite some time…I’m not surprised that there would come a situation where I’d have a question on this…and having the conversation with another Council member from another County…we’re talking about and that Council member has faced the same concerns going forward that with the business relations with the community 34 relations at some point some time…there may be a raise a question of whether or not there’s a conflict of interest…apologize…fighting off a little cold here…so with that…before us now specifically Bill 108 which as it pertains to the vacation rental and this poses a good question for our County…we’re the only County that so far hasn’t regulated and put oversight on vacation rental…personally…my wife and I do manage a vacation rental but also comes up a bigger question concerning the whole agtourism or tourism in agriculture coming forward and that’s conversation that goes back at least a decade of further I’ve been involved with that…one of the big concerns with agriculture and I got into politics to speak on behalf of and for agriculture and a lot of different aspects cause my background is agriculture and one of the things that and again this goes back…probably early 2000…the question is how do we have cash flow in agriculture businesses that maybe we can forgive the pun…harvest some of the tourism dollars coming in and I think Peter Meriman has probably the most iconic demonstration of that…the farm to plate program and protocol that he’s had…following suit with that…the…entities whether it be ranching or farming…whatever the case may be…we have a lot of visitors here…we’ve seen double digit growth of visitors in our County for the last couple of years…it’s projected to continue…agriculture is tough…we had an initiative in our State and in our County to be more food self-reliant so there’s a lot of good reason to try and include the tourism into agriculture in some capacity…this question was asked like I said probably 15 years ago…we’ve yet to answer that…I have a lot to contribute in that cause I’ve been working on that for so long…the vacation rental thing is a part of it and it’s interesting question coming before us without question we need oversight…without question we need some sort of regulatory process for this…this is part of the conversation but again…this is just probably one of the first things I may be back before you again…I’m asking for this…this is not something that was brought up and needed to come before you…I’m asking because I don’t want any misconceptions about what we’re trying to get done…like I said we’ve been here a long time…I’ve been here a long time and I know a lot of people and I work with a lot of people and I serve on a lot of different boards 35 over the years…and there’s always that concern for conflict so I’m very sensitive to do that so thus I’m before you…questions… Mr. Robinson: Just so I understand…you’re here today to ask if there’s a conflict of interest for you to participate in legislation regarding bed and breakfast operations on the island of Hawai‘i because you and your wife own and operate a bed and breakfast operation…is that correct…. Mr. Richards: That’s correct…actually we don’t own it…it’s on Kahua Ranch… Mr. Robinson: On Kahua Ranch… Mr. Richards: Yeah but we manage it…that’s correct… Mr. Robinson: You derive income from that management… Mr. Richards: That is correct. Mr. Robinson: Okay…you disclosed that in your financial statement… Mr. Richards: That is correct. Mr. Goodenow: Do I hear a motion… Mr. Robinson: I’ll make a motion that there’s no conflict of interest for Mr. Richards to participate in discussions in legislation regarding bed and breakfast operations on the island of Hawai‘i…. Mr. Goodenow: Right…second… Ms. Sumner-Mack: I’ll second…I didn’t see any… Mr. Goodenow: Discussion…you know we just went over this with Council member Eoff and I think a lot of the language that we talked about in that is applicable here… Mr. Robinson: Absolutely…the only difference I see is that she did not disclose on her… Mr. Goodenow: Right we don’t have to put that in or about….Mr. Yoshimoto you weren’t clerk when Mr. Richards….so nothing like that so except for those things we could pump out…I mean excuse my language we could craft from our great department of Corporation Counsel we craft a…informal advisory opinion… 36 Mr. Yoshimoto: Okay so for the record…what code sections are we looking at…is it 2-83 as well as in particular… Mr. Goodenow: Yeah 2-84, 2-83…especially you know what is that subsection‘ d’ there… Mr. Yoshimoto: Yeah I’m going to need something for the record from the board members so it’s just not referring back to other ones so… Mr. Robinson: The other one…. Mr. Goodenow: Right it’s…I mean I think just the same discussion we had with Ms. Eoff…the fact that he has…an interest right…he has to do his duty as an officer and as long as he complies with rules of the Council… Mr. Yoshimoto: Right that part you need that in the records… Mr. Goodenow: Yeah we need that on the record… Mr. Yoshimoto: So he’s gonna…he’s gonna provide like for example in 2-83(d) it talks about every officer shall file a full and complete public disclosure of the nature and extent of the interest or transaction which the officer believes may be affected by legislative action… Mr. Goodenow: Yeah we should put that in… Mr. Yoshimoto: Right… Mr. Goodenow: Yeah… Mr. Yoshimoto: Okay… Mr. Goodenow: And it’s our understanding or his representation…he’s done that as of today…he has…he’s good. Mr. Yoshimoto: He’s done that with the Council…you have…yup… Mr. Richards: I disclosed to the Chair that I have…yes… Mr. Yoshimoto: Okay… Mr. Richards: Last committee meeting…when we took public testimony…it was a long day…but I did disclose before the conversation…I said we do manage one and I will recuse myself from any vote until I had…an opinion from this board I said but asked to participate in 37 the conversation and my colleagues agreed that I can participate in the conversation… Mr. Goodenow: Did you file the written annual disclosure…did it include this information… Mr. Richards: I did…I was… Mr. Goodenow: So…thank you for that… Mr. Robinson: Yeah…I mean it’s…it can get ridiculous after a while you know the disclosures as to what legislation involves like we have the Mayor proposing to the County Council that they increase taxes and the County’s gonna have to fund this…under-funded liability with a pension system which is huge which he’s subject to getting his pension from the State I mean are from the same retirement system…would that be a conflict of interest for the Mayor…I don’t know but I guess he’s disclosed on his financial disclosure that he’s a recipient of pension from the State ERS employment…retirement system so I think the disclosure on the financial statement is the most important part which I know for us here we get disclosures from County employees in certain positions and all the other board members…I’m assuming and I asked J about this the other day that the financial disclosures are then held by the County Clerk over next door to make available for public viewing by anyone so the public can go in and see if you know you’re not disclosing and that was the case with Ms. Eoff…that she had not disclosed and she corrected that I think…had she disclosed that initially…we wouldn’t have had that to deal with last time…but you’ve taken it one step further and not only disclosed you’ve disclosed it on your financial disclosure but then you also come and asked for us to acknowledge and give you a you know… Mr. Goodenow: Right…. Mr. Robinson: A blessing… Mr. Richards: And I thank you…again another Council member from another just station…their families tied in to a lot of things too and they said you know just get an opinion…it keeps it nice and as clean as we can keep it so…that’s why I’m here… 38 Mr. Richards: Tikiti boo as they say in Australia… Mr. Goodenow: Okay…any other discussion… Mr. Robinson: No. Mr. Goodenow: Corp. Counsel…any other thing you feel we should address I mean…right…I mean…the…rules eleven of the County of Hawai‘i…I mean he’s already made an appropriate disclosure…he said…but he’ll continue to comply as long as he complies with the right that…there’s no problem… Mr. Yoshimoto: Okay… Mr. Goodenow: I think that covers us…okay…all those in favor say aye…any opposed…seeing none motion carries three to zero….thank you… Mr. Richards: Thank you very much for your time. Motion and Vote: Mr. Robinson moved that there’s no conflict of interest for you to participate in legislation regarding bed and breakfast operations on the island of Hawai‘i. Ms. Sumner-Mack seconded the motion. All members voted aye. 5. UNFINISHED BUSINESS (11:42 a.m.) 11:43 a.m. a. Petition No. 2018-01: Review draft Informal Advisory Opinion regarding a petition from a County Officer or employee, to determine whether he can start an engineering firm to serve outer islands. Mr. Goodenow: Moving on to unfinished business…2018-01…this was a closed hearing…and Mr. Richards…it was an open hearing…you did want an open hearing right…just putting that on the record…you wanted it open…okay this one however was a closed hearing so should we just…can we pass it until… Mr. Yoshimoto: We vote in public, but if you have any… Mr. Goodenow: Comments… Mr. Yoshimoto: Comments…we should go into executive session… Mr. Goodenow: Anyone move to approve as written… Mr. Robinson: Motion to approve…. 39 Ms. Sumner-Mack: Second. Mr. Goodenow: Okay it’s been moved and seconded…we approved the draft submitted by Mr. Yoshimoto…all those in favor say aye…any opposed…motion carries three to zero… Motion and Vote: Mr. Robinson moved to approve the informal advisory opinion. Ms. Sumner-Mack seconded the motion. All members voted aye. 11:44 a.m. b. Petition No. 2018-03: Review draft Informal Advisory Opinion regarding a petition from a County Officer to determine whether there is a conflict of interest by introducing certain legislation before the Hawai'i County Council. Mr. Goodenow: Moving on then to Petition No. 2018-03…may I have a motion to approve… Mr. Robinson: Motion to approve… Mr. Goodenow: Second? Ms. Sumner-Mack: I’ll second it… Mr. Goodenow: It’s been moved and seconded that we approve the informal advisory opinion…put forward in the matter of the petition by Karen Eoff…is there any discussion…seeing none…all those in favor please say aye…any opposed…motion carries three to zero… Motion and Vote: Mr. Robinson moved to approve the informal advisory opinion. Ms. Sumner-Mack seconded the motion. All members voted aye. Mr. Goodenow: Moving now onto executive session with reference to agenda items, but…would you mind…since we have our…guest here that we take number 7 out of order regarding the amendments to the rules so that they can… Mr. Robinson: I make a motion to amend the agenda and take number 7 out of order… Mr. Goodenow: Okay…. 40 Ms. Sumner-Mack: Yes I approve… Mr. Goodenow: We need a 2/3 vote but doesn’t look like a problem…all those in favor please say aye…okay…second…motion passes three to zero.. Motion and Vote: Mr. Robinson moved to amend the agenda and take number 7 out of order. Ms. Sumner-Mack seconded the motion. All members voted aye. *** Moved to agenda item 7 *** 6. VOTING ON EXECUTIVE SESSION MATTERS Mr. Goodenow: We’re back to executive session I guess. Mr. Robinson: Motion to go into executive session…. Mr. Goodenow: To consult with the board’s attorney…. Mr. Robinson: To consult with the board’s attorney… Mr. Goodenow: Okay…do I have a second… Ms. Sumner-Mack: Second. Mr. Goodenow: Okay…all those in favor say aye…motion carries three to zero… Motion and Vote: Mr. Robinson moved to go into executive. Ms. Sumner-Mack seconded the motion. All three members voted aye. 12:20 p.m. The Board took a short recess. 12:21 p.m. The Board moved into executive session. Mr. Goodenow: Calling the meeting to order…can I have a motion rescind going into executive session… Mr. Robinson: Second… Mr. Goodenow: All in favor…okay thank you….we’re still in open session…you know I’m sorry…we’re running out of time and take responsibility for this…but I’m going to ask for a motion that we defer the remaining items of business until the next meeting set for June 12… 41 Motion and Vote: Mr. Goodenow moved to rescind going into executive session. Ms. Sumner-Mack seconded the motion. All three members voted aye. Ms. Sumner-Mack: I so move…. Mr. Robinson: Second. Mr. Goodenow: Any discussion Mr. Yoshimoto…discussion all in favor say aye…any opposed…motion carries three to zero…therefore I’m going to declare that the meeting is adjourned… Motion and Vote: Ms. Sumner-Mack moved to defer the remaining agenda items to the next meeting. Mr. Robinson seconded the motion. All three members voted aye. Deferred a. Review of the executive session minutes of January 9, 2018. Deferred 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. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURES OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAI‘I (11:46 a.m.) 11:46 a.m. a. Correspondence dated March 12, 2018 from Vice-Chair Goodenow. Mr. Goodenow: You got my memo the last time…I have some comments about it but I don’t have to go first and I thought we’d start with Mr. Yoshimoto…any comments on the Chapter 91 process that he would like to share with us…how we go forward with that… Mr. Yoshimoto: Okay…really briefly…board members…so whenever…we introduce or propose rules…there’s public notice required…there’s a thirty (30) day notice of public hearing where the public will have an opportunity to review and comment on any proposed changes that the board is gonna propose…so in terms of timeline…that’s just something to consider…I would probably allow a few weeks ahead of time for publication and looking at hopefully…from the time we’re ready to go with our proposed rules…I would say two months before we can get something for it…of course it depends upon if the public makes suggestions that 42 the board feels is beneficial then we would make appropriate changes as well… Mr. Goodenow: Okay great… Mr. Yoshimoto: That’s the short version. Mr. Goodenow: Any questions for Mr. Yoshimoto…I only add how I see this process working…so I gave you at the last meeting right for rule 1…but we could go thru that and then make recommendations…any recommendations I would write up for Mr. Yoshimoto to review and submit his opinion on…so it’s not like we’re gonna vote on anything till the end but for now…that was the idea…anyone have comments…if not I’m just gonna start going thru what I have…no...okay...first regarding Chapter 91…your know looking at… *** Microphones were not turned on – no audio *** Mr. Robinson: You’ve made a decision…I don’t agree with your decision…you don’t have an intermediate court of appeals but you do have the ability to do a contested case hearing… Mr. Goodenow: Right…I think that’s how it works in Maui and the other kinds of boards and I think that’s we should do that but our code if you look at the language in the code right it says…formal hearing can be initiated when the person doesn’t do what we tell them that they’re supposed to do… Mr. Robinson: What they’re supposed to do… Mr. Goodenow: Corp. Counsel if you want to add anything…I don’t think we have to resolve this today but… Mr. Robinson: But I thought we had the ability for people to ask for a contest case hearings if they didn’t agree with our decision… Mr. Goodenow: Yeah… Mr. Yoshimoto: Right so the code is not helpful in that regard because our rules specifically provide for if you want to just jump straight into the formal hearing…our rules provide for that so you’re correct Rick...we… Mr. Goodenow: Right…and that’s how it should be… 43 Mr. Yoshimoto: Right so we would…yes…that is correct we are…yes…the rules are better than the code yes… Mr. Robinson: The formal hearing is a lot more extensive then what we… Mr. Yoshimoto: What we…yes…so we would adhere to the rules of evidence and you know there would be…yeah more…more formal basically I mean that’s I think Mr. Goodenow is trying to explain at one time in the past but that’s the simplest way to do that right I mean… Mr. Robinson: Because I know on the (inaudible) service commission we did that and that was a lot more rules of evidence back and forth….it was a lot more extensive… Mr. Goodenow: You know I still think we would have the informal part first but there has to be this clear…mechanism… Mr. Robinson: And somebody says…I don’t want to hear your informal…let’s just go right into the formal… Mr. Goodenow: Right… Mr. Robinson: They have the ability to ask for that… Mr. Goodenow: I think under the law they really do… Mr. Robinson: Yeah…okay… Mr. Goodenow: So…moving on from that unless you want to talk more about that so my recommendation is…I think if we stick kind of how the rules have it…we can make it work…we can make Chapter 91 work…we may have to request though the Council to make an amendment but we’ll deal with that later when we get to it…as far as our structure on how we’re gonna do this…we follow Maui and us and how we have this process…we don’t deviate too much from that… Mr. Robinson: Right…so if we want to make amendments…the processes we go to the County Council…and ask them to adopt… Mr. Goodenow: Amend the code yes… Mr. Robinson: Amend the code…okay… Mr. Yoshimoto: So the interesting part is…we may need to put in our rules that the effective date of the rules…are contingent upon code approval 44 because they need to work together cause if they’re…not…then how could you enforce something that’s conflicting right so yeah…just for food for thought as you… Mr. Goodenow: Yeah I think we should gloss over this for now and move forward but just to let you know that that…so as I was looking at Rule 1 right…1.1…okay…it’s pretty much all the same right…so I think we’re okay with current language unless someone wants to add something…it’s all pretty much the same…Honolulu put in…they show…be liberally construed to secure the just…swift and inexpensive determination of every proceeding…I don’t know if you want to add that but that was…out there…any thoughts on that or just keep it the same…keep it okay…authority…that’s just standard I think we just keep it…1.3…it’s identical…that’s easy…now the definitions are where…they start to change a bit and…you know…I discussed this with Corporation Counsel and my feelings is well Maui puts in a lot of…definitions for like advisory opinion…you know different…it’s taken straight from the code right and we already have this in our code so why would we put the same thing in our rule…right I mean…you should read the code before you read the rules or you’re in big trouble…right…so…I don’t think we should just be sticking all these definitions…I don’t think we have to… Mr. Robinson: Yeah… Mr. Goodenow: I think the ones we have now like County and code well it does help you just to read it right where cause we just put County…well that means County of Hawai‘i…so I have no problem leaving in a lot of these…the only thing that was different from that to me was…we might want to consider Honolulu puts in probable cause…that’s “k” there on the chart…means that there’s facts and circumstances that would persuade a reasonable person to believe that there’s been a violation…they put the standard of conduct…ours would be…you know…we’ve have to put the right language…code and article something of the charter right… Ms. Sumner-Mack: So you want to add that to… Mr. Goodenow: Well that’s a thought…cause it would…that is the standard right…Mr. Yoshimoto…any thoughts on that…I mean it’s a legal standard every lawyer knows…but…maybe this is something…let’s say we’re going to add it but then you can review it and tell us if you think it’s a bad idea…but for discussion purposes let’s put it in… 45 Mr. Robinson: A reasonable person… Mr. Goodenow: Yeah and reasonable person… Mr. Robinson: Yes reasonable person… Mr. Goodenow: That actually is a…I think Kauai or Maui has that…I think we should add that cause it puts in reasonable person so we’d add that…that’s “m” under Maui’s…reasonable means fair…proper…moderate…under the circumstances according to reason…maybe Mr. Yoshimoto can think of a better definition than that… Ms. Sumner-Mack: Would it be redundant to suggest refer people to the…to the code for additional definition… Mr. Goodenow: Oh that’s a good idea… Ms. Sumner-Mack: If we’re not putting them all…we could… Mr. Goodenow: You know I’ve never seen that but I like that or from the very start…all definitions in the County code…you know are incorporated by reference and made part of the rules or something… I think our… Ms. Sumner-Mack: That’s better legal talk… Mr. Goodenow: But Mr. Yoshimoto…maybe I’ll draft something with that in it so add that catch-all…okay any other… Ms. Sumner-Mack: Some people (inaudible) their loss if they don’t find it here…they have another place so… Mr. Goodenow: Right and it tells them right where to go…that’s a great idea… Mr. Yoshimoto: What are we saying…are we saying that the County code prevails over our definitions…just in case they amend the code…and our rules are different…you need to state which would…I mean clearly the code would trump… Mr. Goodenow: We’ll put that in…I’ll put that in the language…thank you… Mr. Yoshimoto: Because you either put…you could either copy the code which is one idea or you can like you said just make it an incorporation by reference so you don’t have to put anything arguably although they’d have to look at both to navigate our rules but… 46 Mr. Goodenow: Yeah…I’ll think about that…thank you…okay anything else for definitions….if not…moving to 1.5…disqualification of board member…bias…it’s very similar I mean almost identical to Maui…Honolulu… Mr. Robinson: About time it is… Mr. Goodenow: Yeah…so…it’s a little different…Kauai right…you got this affidavit and filed ten days and shall answer the affidavit…but there’s similar…I don’t see any reason to really change it unless…consolidation is pretty identical…I don’t think we need to change that… Mr. Robinson: Rules of evidence… Mr. Goodenow: Rules of evidence…now this one is funny because…I agree I like our…the board shall not be bound by the strict rules of evidence but that really is more for the…I mean that’s correct…but I think for our contested case hearings we should put something more like Honolulu has right… Mr. Richards: Well for contested case but just for these informal hearings that we have…I think you know it’s more of a mom and pops kind of…yes how do you really feel… Mr. Goodenow: Right… Mr. Robinson: Yeah… Mr. Goodenow: Well why don’t we shred them out…Kauai does this… Mr. Robinson: Yeah…. Mr. Goodenow: They have a special rule of evidence for the informal section they put it and under the formal they put…their own section… Mr. Robinson: Yeah…. Mr. Goodenow: So I’ll just…shred that out… Mr. Robinson: That would be better… Mr. Goodenow: Okay…any other… 47 Mr. Robinson: That would be my opinion like today when she said oh you know we have this and I feel this way and I heard this well do you have any evidence…no… Mr. Goodenow: Alright… Mr. Robinson: You know you really can’t bring that up…so it’d be better we differentiate for the informal versus the formal… Ms. Sumner-Mack: So what do you mean shred that out? Separate it? Mr. Goodenow: Yeah…sorry we’ll put…. Ms. Sumner-Mack: Legal term of art…. Mr. Goodenow: No…so under…I can’t remember the rule number but the rule for informal advisory opinions for whatever it is…it will have a separate provision about the rules…it will say the board shall not be bound by the strict rules of evidence….but when we under the formal section we’ll put all evidence shall conform to the rules of evidence as provided under Section 91-10 HRS…irrelevant…immaterial or unduly repetitious information shall not be admitted into evidence…you know the other language here.. Mr. Robinson: Right…. Ms. Sumner-Mack: Sounds good… Mr. Robinson: So our informal would be really informal… Mr. Goodenow: Yeah… Mr. Robinson: And formal hearings would really comply to court room settings… Mr. Goodenow: That’s good. Mr. Robinson: Yeah…. Mr. Goodenow: Okay…so that moves us along to 1.8 right to appear…they’re all identical so might as well keep it… Mr. Robinson: Yeah… Mr. Goodenow: If all four us…must work…1.9…similar but I don’t know if the board wants to think about…or if Corp. Counsel has anything 48 about you know…this is our minutes…our files…our records…if there’s anything we want to add from a practical you know operational stand point… Mr. Robinson: I mean this thing in Maui…you gotta keep hard copies for six years…I mean if you got an e-copy…just throw the hard copies away… Mr. Goodenow: I like that… Mr. Robinson: Yeah… Mr. Goodenow: Okay…no Maui… Mr. Robinson: No Maui… Mr. Goodenow: Alright any other comments on that…authentication…I don’t know Maui…I mean… Mr. Robinson: Yeah…to be signed by three or more…they do it by three or more members… Mr. Goodenow: I say keep our own…okay any other comments on that one…staff opinions…this is weird…only we have something like this…the legal counsel may give an opinion over the telephone or in writing at the direction of the board...records shall be kept of all advice giving under this rule and shall be available to the board members at the board meeting following the date in which the advice is given…what is that… Mr. Robinson: Is that like if I call up J and ask for advice on something…J has to provide a written record to everybody that… Mr. Goodenow: I told him it wasn’t a violation…but should he be doing that…I don’t know… Ms. Sumner-Mack: Yeah that seems highly questionable… Mr. Robinson: Yeah… Mr. Yoshimoto: Yeah maybe take that out because that hasn’t been utilized so I don’t know how what purpose that would service… Mr. Goodenow: Okay take that out…confidentiality…we had a lot discussion about this in regards to Mr. Tucker right and you know not being able to… 49 Mr. Robinson: Tommy Tucker…. Mr. Goodenow: No…what’s his name… Mr. Robinson: What was his name…? Mr. Yoshimoto: Rob… Mr. Goodenow: Rob Tucker… Mr. Robinson: Rob Tucker… Mr. Goodenow: Right and the fact that they couldn’t share his name with…respondent or…they couldn’t provide his letter…the respondent’s letter to him… Mr. Robinson: Yeah… Mr. Goodenow: They couldn’t provide respondents response… Mr. Robinson: Yeah… Mr. Goodenow: To him in advance… Mr. Robinson: So he couldn’t get it until he actually got here then he got the information at the day of the hearing so he had no time to prepare… Mr. Goodenow: So…I mean…I don’t know if how we want to… Mr. Robinson: In theory…in my mind…like in the case of Mr. Tucker…he should’ve been given that information ahead of time….so he would’ve had the opportunity to prepare…since he did not receive it…he wasn’t able to prepare and we had to continue until the next time…that really I think led to a waste of our time and his time too… Ms. Sumner-Mack: Yeah…. Mr. Robinson: So I’d much rather it be that any information provided ahead of time is communicated to the…what do you call them….the… Mr. Yoshimoto: Respondent… Mr. Robinson: Respondent…yes… 50 Mr. Goodenow: You know it’s interesting I mean… Mr. Robinson: Don’t you think that’s fair… Mr. Goodenow: Yes…I do…you now…Honolulu has some language in here right about…see all records…files…reports…shall be held in confidence…no information as to the contents thereof shall be disclosed unless such disclosure is: (1) the result of information being presented to and received by the commission at a hearing or meeting that is open to the public; (2) ordered by a court; (3) reasonably required by the commission or its staff or designee to investigate or otherwise discharge its duties regarding the request for advice or the complaint…including but not limited to providing information to the appointing authority or council or in the case councilmember…well that doesn’t…we may have to work more on this provision… Mr. Yoshimoto: You’re looking for the rule about the board documents… Mr. Goodenow: Yeah… Mr. Yoshimoto: That’s like 4.13 I think… Mr. Goodenow: So we can wait for that…this is just in general… Mr. Yoshimoto: Right… Mr. Robinson: Well in my mind…if we receive information from the departments or whatever it was in the case of Mr. Tucker…he was not able to get material until he got here…consequently you wined up having to carry over to the next…it would be better if in the course of that…would we just communicate that to him or send him a copy of whatever it was provided so he’s prepared ahead of time… Mr. Yoshimoto: With the exception of maybe of personal information whether it be cellphone…home address…things of that nature I mean because that’s protected under HRS right so… Mr. Robinson: Redacted… Mr. Yoshimoto: But as far as their name…you know they would have to…understand that their name’s gonna be provided to the respondents…some kind of acknowledgement right so that it’s clear….Kenny so the other Counties must have addressed that too right… 51 Mr. Goodenow: Yeah…I think you’re right though it comes up later… Mr. Yoshimoto: Okay…. Mr. Goodenow: So that’s not really for this section…this is kind of the general…confidentiality provision…but I think that…ours is bit short…I don’t think it matters as far as Chapter 91 purposes but I mean we could keep it or if you want something more detail we could go with say Maui but I…I think we’re fine with the way it is…we’ll address that other issues later…thanks I forgot that it’s addressed later… Mr. Robinson: Yeah…okay… Mr. Goodenow: Any other comments…we just keep that the same I guess…may we ask Corp. Counsel to think about it…on that one…keep that one semi-open for review next time…okay and then…we’re almost done…availability of board documents…this is more an operational thing so I kind of defer to Corp. Counsel what they feel is best….do we provide all opinions to the public to review and inspect our opinions…we do right… Mr. Yoshimoto: If they want a copy…as long as…yes…as long as it’s not a closed opinion… Mr. Goodenow: Right…so if…let’s say I went in to Corp. Counsel…I said I want see and index of all your opinions…do you have that… Mr. Yoshimoto: I don’t know if we an index but if they want a specific opinion… Mr. Goodenow: What if they say want to just read through them all…would they be allowed to… Mr. Yoshimoto: Yes as far as the non-confidential documents… Mr. Goodenow: Right… Mr. Yoshimoto: Yeah… Mr. Robinson: Let’s go down to item “f’ there…availability of board documents…public financial disclosures filed with the office of the County clerks shall be available for public inspection…that’s something that we have purview over… Mr. Goodenow: No…we do not… 52 Mr. Robinson: So why is that in there…? Mr. Goodenow: That’s a very good point…I think we should take it out…I mean it’s just letting the public know…we do ours right…. Mr. Robinson: But the ones that we review…those are not disseminated to the public…there only on…if there’s a need for that… Mr. Goodenow: Yeah…I agree… Mr. Robinson: So all of those are not held there…we don’t have purview over the public financial disclosure… Mr. Goodenow: We don’t… Mr. Robinson: I think we should get…a courtesy copy of the financial disclosure form…cause it’s what the politicians…the certain office directors or directors…I forget who is in that…in the… Mr. Yoshimoto: I think it’s regulatory employees…supevisors…yes… Mr. Robinson: And so we don’t really see those but it’d be nice if we just passed them by…we don’t have to initial them or anything… Mr. Yoshimoto: So that’s something if the board is considering as far as the amending the code if the board would like to review those public financial disclosures…we could ask for that authority because we’re looking at confidential ones… Mr. Goodenow: Right… Mr. Yoshimoto: Anyway…but that’s up to the board as a policy… Mr. Goodenow: I think it’s a good idea…I mean it is a Kuleana… Mr. Robinson: Yeah… Mr. Goodenow: I mean… Mr. Robinson: Somebody brings up a question…I’ve had people question me and I go I don’t know you have to go look… Mr. Goodenow: Yeah… Ms. Sumner-Mark: What are you x-ing out…. 53 Mr. Goodenow: You know the disclosures that… Ms. Sumner-Mack: I’m just looking at what you’re x-ing out… Mr. Goodenow: Oh “e” and “f”…that’s not really our business right about the County clerk having the disclosures on file…so he’s saying take them out and I agree with that…but in addition to that he’s saying…we should introduce a code maybe amendment requiring or ask the Council to do it…requiring that those be reviewed by us as well… Mr. Robinson: Just that same as everybody else’s… Mr. Goodenow: Just like everybody else’s… Mr. Robinson: Except the ones…J calls it regulatory…the regulatory folks those go out to the public whereas the other we have are held… Mr. Yoshimoto: The regulatory is the guys that happens…I sorry that’s confidential…it’s the…the public financial disclosures are for elected officials…the Mayor…the department heads…the deputy directors…those are all public… Mr. Robinson: Those are all public… Mr. Yoshimoto: Yeah… Mr. Goodenow: But I think we should review them… Mr. Robinson: We should review them…so if someone questions us on an ethical item was oh wow you know…that’s available for public review and when I looked at it…it said this… Mr. Goodenow: We may not need a code change…we could just maybe ask if they would always send it to us and we agendize it but…let me… Mr. Robinson: We did this on the agenda already… Mr. Goodenow: Yeah we just add it on there… Mr. Robinson: And we can have these are confidential and we have public… Mr. Goodenow: It’s public…we just have Corp. Counsel go pick them up…put it on our agenda… Mr. Yoshimoto: Okay… 54 Mr. Goodenow: This is what we’re doing…we’re not voting on anything…I’m gonna summarize our meeting and that’s gonna be one of the things to put there to consider… Mr. Robinson: Okay… Mr. Goodenow: So and I’m gonna ask Corp. Counsel to vet everything that we put on there so that’s one thing I’m adding… Mr. Robinson: When was it that they changed the State law…that certain boards and commissions…? Mr. Yoshimoto: That was about…3 or 4 years ago…right… Mr. Goodenow: Right… Mr. Yoshimoto: Yeah… Mr. Robinson: And that was only certain boards and commissions…not all boards and commissions… Mr. Yoshimoto: They basically made them public right… Mr. Goodenow: Yeah… Mr. Robinson: So how did they select which ones were made public and which ones were not… Mr. Yoshimoto: I don’t recall… Mr. Robinson: The ones were you had a decision or something like that… Mr. Goodenow: Yeah… Mr. Yoshimoto: If they did that then that’s basically everything…right…so... Mr. Goodenow: It was pretty wide spread…I just remember everyone resigning from…I mean like the board of regents and all these things people were bailing out… Mr. Robinson: Yeah… Mr. Goodenow: That’s a thought though…we don’t have to…do that but I think we should amend the public one…review the public ones so I’ll add that…anything else on 1.13.. 55 Mr. Robinson: No. Mr. Goodenow: Okay…1.14…operations…any thoughts…I mean the…we’re not…that’s outdated though right 25 Aupuni Street….c/o Office of the Corporation Counsel… Mr. Robinson: Just update that… Ms. Sumner-Mack: That’s not the… Mr. Goodenow: Is that right…what should we put J…just put the offices of the board or at the office of corporation counsel…at such address where the…well…I don’t know…how do you want to put that…I guess in the old days right…Corp. Counsel was in this building…do we want to put an address… Mr. Robinson: No I wouldn’t put an address… Mr. Yoshimoto: Yeah… Mr. Goodenow: So we just say the Office of the Corporation Counsel… Mr. Yoshimoto: Okay… Mr. Goodenow: Alright…fix…alright…and the office of the board shall be open 7:45 to 4:30…I mean that’s Corp. Counsel…they okay with that… Ms. Sumner-Mack: We don’t govern that… Mr. Goodenow: I mean we don’t really…we could put the office of the board or…to be set by Corporation Counsel…and shall be reasonable…no…leave it… Mr. Yoshimoto: Yeah…leave it… Mr. Goodenow: Okay…1.15…board shall hold its regular meetings on the second Wednesday of each month… Ms. Sumner-Mack: Have we ever done that… Mr. Robinson: No… Ms. Sumner-Mack: I don’t think we’ve ever done that since I’ve been on… Mr. Goodenow: Not since I’ve been here… 56 Mr. Robinson: Not since I’ve been here either…you want to change the Wednesday to Tuesday… Mr. Goodenow: No…we could…no… nd Ms. Sumner-Mack: This is Tuesday the 2… Mr. Goodenow: And I’m not sure…I don’t think…there’s nothing in the Charter right…it just says it has to meet…quarterly or what’s the rule on that…I have it right here…five members…it doesn’t really say anything…. Ms. Sumner-Mack: Doing on Mondays…. Mr. Goodenow: Well I think we should keep it flexible… Mr. Robinson: Just write it so it says flexible… Mr. Goodenow: That we should meet at least quarterly…maybe we shouldn’t even put that…shall meet as needed… Mr. Robinson: Well…I like it…a little bit more certainty… Mr. Goodenow: What ethics problems…we haven’t had one for three years…oh sorry… Ms. Sumner-Mack: We did meet one Tuesday…that was Mardi Gra… Mr. Goodenow: Oh right… Ms. Sumner-Mack: In February…but all the other ones…I think have been on Mondays…since I’ve been on… Mr. Robinson: Monday or Tuesdays works for me… Mr. Goodenow: Well I would say we should keep open so there’s no waiving of the rules we just say… Mr. Robinson: Well I know in the past we’ve had folks tell us that we need some degree of certainty to… Mr. Goodenow: Okay… Mr. Robinson: Meeting dates to comply with calendars for the multitude of different… 57 Mr. Goodenow: Alright… nd Mr. Robinson: Items that are out there so I would just like to see it maybe the 2 Tuesday of each month…unless we have a reason to amend it but…we have some certainty to it…no reason I don’t like Wednesdays…it that the day I play golf…being honest… Mr. Goodenow: The only downside I see is if we do that and then all of a sudden the Campaign Spending Commission… Mr. Robinson: Changes… Mr. Goodenow: Amends its rules…. Mr. Robinson: But you guys have been on Wednesdays… nd Mr. Goodenow: To be the 2 Tuesday…yeah I don’t know… Mr. Robinson: Let’s just try Tuesday… Ms. Sumner-Mack: Keep it Tuesday… Mr. Goodenow: What would you…any comments J… Mr. Yoshimoto: You can say Tuesday and just put in some flexible language or as scheduled or set by the… Mr. Goodenow: Or otherwise set by the… Mr. Yoshimoto: By the board…. Mr. Goodenow: By the Chair or the board… Mr. Yoshimoto: Yeah… Mr. Goodenow: Okay… Mr. Yoshimoto: So you don’t have to suspend the rules all the time… nd Mr. Goodenow: So we’ll do…on the 2 Tuesday of each month… Mr. Robinson: Yeah… Mr. Goodenow: Or as… Mr. Robinson: As needed… 58 Mr. Goodenow: As otherwise determined…okay great…next one…I don’t know if you want any of this other stuff…look at…special meetings…you gotta have Chairperson or two more commissioners…and then… Mr. Robinson: I think all that applies… Mr. Goodenow: Yeah I think ours is pretty good but…Robert’s Rules Maui mentioned that…I don’t know if you… Mr. Robinson: Their Maui… Mr. Goodenow: I understand but you know it’s nice to have something to fall back on if our rules don’t cover it…if our rules are silent right…at least then you can say well under Robert’s Rules…you know…I don’t know just a thought…and then also…Maui put in…stuff about social informal gatherings of two or more members you know shall not be considered board meeting…I don’t know if we need that… Mr. Robinson: No. Mr. Goodenow: Okay…anything else then…we just leave it the way it is…that’s the consensus…except for the Tuesday…. Mr. Robinsons: Two of those items that were… Mr. Goodenow: Yeah…okay…that’s it… Mr. Robinson: Alright…and then number two and three we’ll do next time right… Mr. Goodenow: Yeah and I passed that out so you got that…we’ll put that on the agenda…okay so…moving on to the next item of business… *** Moved to back to agenda item 6 *** Deferred 8. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (11:46 a.m.) 9. ANNOUNCEMENTS (12:22 p.m.) Mr. Yoshimoto: You gonna announce next meeting too… Mr. Goodenow: The next monthly meeting of the Board of Ethics is scheduled for June 12, 2018 at 10:00 a.m. 59 10. ADJOURNMENT (12:23 p.m.) Mr. Goodenow: May I have a motion to adjourn… Mr. Robinson: Motion to adjourn. Ms. Sumner-Mack: Second. Mr. Goodenow: Okay moved and seconded…all those in favor say aye…any opposed…motion carries three to zero…meeting is adjourned…thank you. Respectfully submitted: Emily Hirayama, Secretary 60