Loading...
HomeMy WebLinkAbout06-12-18 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Tuesday, June 12, 2018 10:03 a.m. to 11:53 a.m. Hawaii County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Kenneth Goodenow, Vice -Chair Rick Robinson, Member Nan Sumner -Mack, Member David Wiseman, Member J Yoshimoto, Deputy Corporation Counsel Emily Hirayama & Maria Pagala, Secretaries 1. CALL TO ORDER (10:03 a.m.) Mr. Goodenow: I'd like to call the meeting of Hawaii County Board of Ethics to order. My name is Ken Goodenow, I'm the Vice -Chair. Our Chair apologizes, she can't be here. I did excuse her though. We have a new member, if he would please introduce himself. A very distinguished, retired Federal Judge. Mr. Wiseman: Good morning, my name is David Wiseman, I am a retired Judge. I've been retired in Hawai`i for last two years but I've lived in Pahoa in 1975. So I'm not a stranger to the Big Island and I look forward to participating in this Board of Ethics. Thank you. Ms. Sumner -Mack: I'm Nan Sumner -Mack, I'm fairly new on the Commission. Mr. Robinson: I'm Rick Robinson, Commission Member. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:03 a.m.) Mr. Goodenow: Ms. Novak: We'll move on to the first item on the agenda after the call to order that would be public statements. We have one person who signed up, that would be the petitioner in 2018-04, Ms. Layne Novak. Thank you. Good morning everyone! I know that you are an attorney, so you look for evidence. I tried to gather evidence through OIP and unfortunately was unsuccessful. Based on what I did get, I did get an email through an anonymous source who wants to remain 1 anonymous. Once again, a lot of people that support me do not want to come forward and do not want to have their name brought out for fear of retaliation by the administration. This email came out in 2016, the latter part of 2016 and in it they look at the hierarchy of this project, this EnerGov project. I'll just read it. "Each department should have a designated user representative." It says "personnel should have an understanding of the business process for their department". For IT it was Rand Otsu. Who is, by the way, still an employee of the County and with IT. Departmental business leads, each department should have a business lead appointed for the entire life cycle of the product in IT's position in IT, it would be Sheila Cadaoas, who has the contract right now that I'm disputing and Rand Otsu who is currently employed. For our Public Works, it would be the program manager, which they recently hired for that position. Technical Lead, typically a network or IT administrator responsible for infrastructure support during implementation and during the life cycle of the product. For IT, the recommended lead is Kevin Norris. Kevin is a manager and he is currently employed with the County. The last thing was project steering committee. Suggested names by department are IT Sheila Cadaoas and Don Jacobs. Don Jacobs is still with the County of Hawaii, IT Department. I'm looking at this email, everybody is still with the department, with the exception of Sheila. Her name appears because in 2016, she was thinking about retiring, but she was still undecided so the department head just proceeded forward and included her in this EnerGov project. I want to bring to your attention that Randall has been in the department for a long time as well. He knows the intricacies of the EnerGov project. Yes, he is a busy man. He's a developer and he's a...database administrator. He does a lot of things, but that doesn't mean that he cannot be a program manager for this particular project. Aside from Sheila, he's probably the only other person in the County, except for people in the building department, that know the intricacies of the current permitting system. Another thing that I wanted to bring up was in HRS 76-77 No. 7, "positions filled by person employed by contract, where the personnel director are certified that the service is special or unique". Who determines that? Again, we have a lot of people that know the intricacies of the current and the previous building permitting system. So what is considered special or Mr. Goodenow: Ms. Novak: Mr. Goodenow: unique? And it says which is essential to the public interest and that because of the circumstances surrounding its fulfillment, personnel to perform this service cannot be recruited through normal civil service procedures. It was never decided. Somebody made an arbitrary decision to not go through Civil Service. We have and audit analyst exempt position that just came out...April 22, 2018. An exempt position. I still don't understand why this program manager position could not have gone out for competitive recruitment. I have another thing, according to Exhibit "B" of the contract of Sheila Cadaoas' contract. No. 5 "manages and oversees contracts with vendors...checks for contractor compliance with contract provisions". I was told, I know, you like evidence.... Well you know this is the public testimony portion. We usually limit it to three minutes but I want you to feel that you really have your say and since you're the only person I figured my fellow Board Members are okay with that so take your time. I was told that the project is over budget by 700 hours and $130,000. That's all I have to present. Do you have any questions? We'll move on it when we move to the agenda but thank you for waiting and we'll get to that soon, I hope. We did have a question. They wanted a copy of your email the email. Ms. Sumner -Mack: Can you get that? So we have it when we get to your case. Ms. Novak: Sure. I redacted everything...the dates, who it came from, who it went to, again, for security. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF MAY 7, 2018 Mr. Goodenow: Next on the agenda. Approval of the Regular Session Minutes of May 7,2018. Mr. Robinson: Motion to approve the minutes of Regular Session of May 7, 2018. Ms. Sumner -Mack: I'll second that. Mr. Goodenow: Is there any discussion? 3 Ms. Sumner -Mack: I did cite an incorrect figure cause I misheard it and the exceptions that were cited in the minutes. I misheard and I thought it was exemption 13 and it was 16 that they were referring to. Mr. Goodenow: Do you know what page that's on? Ms. Sumner -Mack: No. Mr. Goodenow: I misspeak all the time when I read and I don't bother to change things. Mr. Wiseman: Mr. Chairman, I'm going to pass on participating. I'm not that privy to the minutes. I did scan them but I just returned from a trip and I didn't have time. Mr. Goodenow: We'll just mark you down as abstaining. Thank you. Any further discussion? If not, all those in favor please say aye. Any opposed...seeing none. The vote is three with one abstention. Motion and Vote: Mr. Goodenow moved to approve the minutes. Vote is 3 ayes with 1 abstention. 4. COMMUNICATION (10:13 a.m.) a. Letter from the public received on May 10, 2018, reporting unethical behavior from a Court Judge, District Attorney and Criminal Defense Attorney while the case was ongoing. Mr. Goodenow: Moving on to next item of business 4a. I guess if we could have a motion to file. Mr. Robinson: Mr. Wiseman: Mr. Goodenow: Mr. Yoshimoto: Motion to file this letter. Second. It has been moved and seconded. Discussion...ask our Corp. Counsel to refresh us on our procedure when receiving a letter that appears to...should be directed to another agency. Thank you Mr. Chairman. The recommendation...the options...there's several options for the Board to consider. One of the options is to forward the letter to the appropriate agency so in this matter would oversee attorney's conduct as well as Judge's conduct. That would be on the State level. I think it's the Office of Disciplinary Counsel and I believe the Judges also have some kind of Board overseeing them. I think that would be the appropriate 4 Mr. Goodenow: Mr. Wiseman: Mr. Yoshimoto: Mr. Robinson: Mr. Yoshimoto: course of action and then of course responding to this person as well, letting him know that this is what the Board decided to do with it as far as letting him know that it is being forwarded on. I guess maybe I should have just filing but is everyone okay with that course of action or do you want discussion on it? Yes, I will second that. I believe it should go to the Chief Justice or the Disciplinary Counsel of the State Bar Association...or the Court system...the Court does have an Office of Disciplinary Counsel...and they would have direct jurisdiction over all these alleged violators. So then that the Board could authorize a letter being signed by the Chairman...basically setting forth what we just talked about. So...empower you to sign the letter transmitting. You need a motion to that effect? Yes. Ms. Sumner -Mack: I have a question just...I want to make sure it will come from us...from this Commission...but also that the petitioner will receive a copy of that? Mr. Yoshimoto: Ms. Sumner -Mack: Mr. Yoshimoto: Ms. Sumner -Mack: Mr. Robinson: Mr. Goodenow: Yes. But also we'll forward his petition at the same time...is that right... when we send our letter... so it goes directly... so he doesn't have to go through rigmarole. Exactly...yes. Very good. I so move. I second. Alright it has been moved and seconded. Any further discussion? Seeing none. All those in favor please say aye...any opposed...motion carries four to zero...thank you. Motion and Vote: Ms. Sumner -Mack moved the motion to file. Mr. Robinson seconded the motion. All members voted aye. 5. NEW BUSINESS (10:14 a.m.) 5 Mr. Goodenow: Alright...next item...new business...there was no new business...so moving on to unfinished business. 6. UNFINISHED BUSINESS (10:15 a.m.) 10:15 a.m. a. Petition No. 2018-04: Continued 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 Hawaii County Code. Mr. Goodenow: I...I'm sorry...maybe I didn't do my homework but I don't think we have a pending...there was a pending motion...it was move to continue so we're back on the main motion which is...on no my motion failed. Mr. Yoshimoto: Correct. Mr. Goodenow: And then we continued so we would need a new motion at some point but I'm willing to be a little loose on that if you want some discussion...ask any of the parties forward...I defer to all of you. Ms. Sumner -Mack: It was my understanding, that we lacked certain key information in order to proceed with this and render some sort of opinion and that...that we would continue in order for us to receive that information. Mr. Goodenow: Thank you for reminding me...okay...I leave it...does someone want the floor? Ms. Sumner -Mack: I'm wondering...anticipated that some people would be here to...to provide information and I don't know these...whose in the audience but I don't know if...can we call some individuals? Mr. Brilhante: Bill Brilhante from HR. Ms. Sumner -Mack: Okay. Anyone from IT? Ms. Ung: I'm the director of IT, Jules Ung. Ms. Sumner -Mack: Anyone from the Public Works Department? Mr. Brilhante: Allan Simeon. Ms. Sumner -Mack: Thank you. 6 Mr. Robinson: Maybe if we could I'd like to go back and just kind of refresh where my concerns were from the last meeting before we start and that is when we got the presentation for Ms. Novak regarding the contract and having worked for a trust at one time that had about as many employees as the County has and participated several migration projects one migrating mainframes to initializing new software for accounting and new software for property management...both of which are quite complex and involves teams of people and then when I heard this presentation that one person was in essence the deciding or the managing person for this entire institution of this new accounting or not accounting but new management software it was a concern to me because in my experience its always you want a team of people working on software institution not one person because the perception with one person is that you have someone so much in control that they cannot be replaced yet they get hit by a bus or something like that. So that was a concern for me and then also...second thing was...just I think as we brought up how many of these kind of special contracts does the County have in existence to hire people and is something that fits within the process for getting new employees into the County so that you can have that continual replacement of people to keep your employees fresh and up to date or if we get to a point where people want to retire but then they can come back on special contract. Such in this case it looks like they can keep all the same benefits that they had as a prior employee but be on a special contract and not really working for the County so those were my concerns. Ms. Sumner -Mack: I'd like to ask one question that's important to me. And that refers to Ms. Novak can you repeat...we didn't get copies of everything so can you repeat the over budget figure. Ms. Novak: Yes, it was my understanding...its 700 hours over budget and $130,000 over budget. Ms. Sumner -Mack: Okay, thank you. Ms. Novak: You're welcome. Mr. Robinson...just a clarification, she's not the only one on this project...there are many people from Public Works as well as planning...involved in this project...no one from IT is. Mr. Robinson: You said...there's many people involved in the project? Ms. Novak: From Planning and Public Works. 7 Mr. Robinson: Ms. Novak: Mr. Robinson: Ms. Novak: Mr. Robinson: Ms. Sumner -Mack: Ms. Novak: Ms. Sumner -Mack: Ms. Novak: Ms. Sumner -Mack: Ms. Novak: Ms. Sumner -Mack: Ms. Novak: Okay I understand that part. As far as I know...there's not anybody assigned to the project from IT...maybe Randall...but I don't know. So from IT...what you're saying is she dismissed Cadaoas...is the sole representative for IT in this progress of...instituting this software. She reports to Ms. Ung...but she currently is being paid...her contract is being paid by Public Works. Okay. Excuse me but...the Exhibit "D" that she presented initially was signed by someone...Aaron... Aaron Brown. Brown...is he still with the department? Aaron Brown is with...he is the...I guess the account manager or accountant for Department of Public Works. And yes he is with the County. He's still there? Yes. Still his position...and I noticed that exhibit was originally dated July 7, 2017. Do you have any idea why it took so long to finally sign it? I do not. Ms. Sumner -Mack: Because it...I don't know how long the civil service process takes but... I does take a very long time. Okay thank you. Ms. Novak: Ms. Sumner -Mack: Mr. Goodenow: Okay. Any other member? I don't know...I mean...I kind of made my opinion clear last time as to...that we need to look at this narrowly and does it actually violate the Board of Ethics provisions but at the same time I appreciate...kind of looking at maybe the 8 Mr. Yoshimoto: Mr. Goodenow: Mr. Okabe: Mr. Goodenow: Mr. Okabe: Mr. Robinson: Mr. Okabe: Mr. Robinson: bigger picture so to speak...it does impact ethics...I'm not saying it's completely irrelevant or not germais...so I appreciate that...but I'm really leaving it up to you all...how you want to proceed at this point. So Mr. Chairman...I'm going to let the record reflect that Mr. Okabe is also here from the Mayor's Office. Yes. Thank you Mr. Okabe...would you like to speak? Okay well... up to you. I'm just here because I was told to come here for the ethics meeting. Is that in relation to this matter? Well I don't know if either of you have any questions...my only question is...this type of procedure... is done in other departments... it's been vetted by Corp. Counsel as far...being a legal procedure. What happens is that...by the time it comes to my office...and the Mayor's Office...it has gone through all the different departments to sign off on it...so my signature on behalf of the Mayor is that's this last, last step...so it doesn't come to any kind of...whether it's a promotion or job...by the time it gets to my office...it's a...it goes to various steps. Mr. Okabe...I'm just curious. How many of these types of contracts does the County have...where people have retired but then they are called back for additional work? There's not that many but I know that there are some for 89 day hire...mostly 89 day hires. Those are the ones when they retire from the County...or from the State or something you know they have a contract. This one is a little bit more than 89 days this one is a nine month if I believe...nine month contract. Ms. Sumner -Mack: Year. Mr. Robinson: Mr. Okabe: Mr. Robinson: Or a year contract. Mm hmm. (Inaudible) Okay...one year contract...is that normal as well? 9 Mr. Okabe: No...that...that is not...I don't think that's really normal...but I know that there are contracts that are made...that's all I know... yeah. Because even for our... some of our positions... it's 89 days...but it depends on the department...on the need...you know if there's a need in the department...then they can extend and do the contracts...but it will go to Corp. Counsel to see if its legal or not to do...it's not something that...it wasn't deemed illegal. Mr. Robinson: So just...for the 89 day contracts...do they have accrual for seniority...do they have accrual for length of time for retirement. Mr. Okabe: No. Mr. Robinson: Do they have vacations days and sick leave days and...the ability to work in overtime like this contract does...or those are just specific to 89 days with eight hours a day for five days a week and then no time and service or other extensions for retirement. Mr. Okabe: I'm not sure...maybe you can ask Deputy Counsel in regards to that because...I think they do accrue some kind of benefits though right by working with the County. I don't know if they're exempt from all the...I don't know. Mr. Yoshimoto: That would depend upon the type or classification. I think Mr. Brilhante touched upon that the last time in this particular case I think...his representation was...was that this type of position allowed for benefits. Mr. Okabe: Yeah. Mr. Yoshimoto: But I do understand there are some positions that do not. Mr. Robinson: The 89 days would not allow for the benefits? Mr. Yoshimoto: That I don't know. Mr. Goodenow: Unless it got extended right...that's why it's 89 days... Mr. Yoshimoto: Right... right... yeah. Mr. Goodenow: Is my understanding...but I'm not a witness sorry. Anything else? I hope your throat is not from all the vog or the lays or oh my gosh. Mr. Okabe: I just went there...on the chopper this Saturday so...I'm pretty sure. 10 Ms. Sumner -Mack: Mr. Okabe: Ms. Sumner -Mack: Mr. Okabe: Ms. Sumner -Mack: Mr. Okabe: Ms. Sumner -Mack: Mr. Okabe: Perhaps this isn't a question that should go to you...but I'm just wondering...my understanding is and I think it's reflected in the contract that...there was to be an evaluation of the project at the end of 6 months...and...last time we discussed who was supposed to evaluate...the performance...of...according to this contract...no one seemed to know exactly who was... going to evaluate the performance... and also I believe that the second half of the contract was contingent upon approval from the director of finance deciding about whether the budget would tolerate having the project go forward after July or after June...so could you speak to that or do we need to ask someone else. Well I really don't think I'm the person that's going to be evaluating that particular employee...because it's coming from another department. I think DPW isn't it...I think it's DPW...so but I will not be evaluating that particular process. And the other question was...in regards to? With regard to the Director of Finance is not here is that right? Yeah...well she was just in a meeting with the Mayor's Office just a while ago but she had to go somewhere but that particular situation...I mean...you know the budget is very... we're going to some situation with the budget right now so...I believe we still have funds...to be able to fund after July...but I guess it's based on need...you know what I mean...Its needed from the Department of Public Works for this particular position...and that's what we'll do to try to fund it as much as possible. Is this something you discussed with the Director of Finance? No. I didn't discuss anything in regards to this particular situation. But when it comes to budget...like I said...it's same thing...what happens to any kind of procurement or any contract or anything to do with employees...it'll go to the process...it'll go to the Department of Finance...it'll go to all the necessary departments...and it'll come to my desk and I'll just review it and I'll sign it...as long as everything is all signed prior to...and if I have any questions I'll call the directors responsible to give me clarification before I sign. I'm just concerned because somethings have changed about the County budget in the last couple of months. Yes. 11 Ms. Sumner -Mack: Mr. Okabe: Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Mr. Robinson: Mr. Robinson: Mr. Okabe: Also we...we have extraordinary expenses and we also the council just passed a I think it was a quarter percent increase and to get taxed to cover some of the problems with financing necessary services and so I'd like to hear from the Director of Finance if possible...about what they would decide should take place at the end of June with regard to the next fiscal year and whether this project was essential...that makes it essential expenditure so it's no reflection on you but I just...thank you. Thank you. Mr. Corp. Counsel if you could refresh my memory...I thought that...there was the complaint...the respondents are the Department of Public Works and the Mayor's Office at this point. Is that correct? We also noticed the Human Resources and IT. But as far as the petition...I guess they're all respondents then at this point. Right...I believe Ms. Novak...intended...and you can ask her...but she intended for the Mayor's Office to be primary in terms of responsibility. Right and I guess maybe that's why you're here so we appreciate you coming and I don't know if there are any more questions for the Managing Director. I do...just one Oh sure...Mr. Okabe...I'm curious we talked about these types of contracts and you said there's some but no definite answer... and then with talked about the 89 day contracts and that there's some...but who keeps track of that...do you know...who keeps...I mean like we have these contracts that are for a year or nine months which are longer than the 89 days. Normally I would expect someone would be keeping track of this at each department has you know... Public Works has four. Yeah. Usually any time of employment I would think that the Department of Human Services HR would be keeping tabs on regards to some kind of employment. So Human Services is a check and balances in case of any kind of employment so they'll go to all the qualifications in regards to jobs and then they'll go 12 Mr. Robinson: Mr. Okabe: Mr. Robinson: to... if they meet the specifications...they meet the requirements for the particular position so they'll be the ones to actually to advise me if there was a question...in other words...and says hey...Will...this is a 89 day hire...but so and so...then I would have to you know discuss it with the HR before we hire anybody. So there is a way of tracking the employment contracts. Yeah... yeah... HR... yeah. And then the second thing I was really curious I heard today...somebody said or I think Ms. Novak said...that that EnerGov contract is significantly over budget...I just curious that that raises a red flag with anyone or that would be an IT question maybe... but that's.... Ms. Ung: I can speak to that. Mr. Robinson: Okay. Mr. Yoshimoto: Just a reminder Board Members...we are focused on the Code of Ethics and Mr. Chairman as you can just make sure we're within our... Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Ms. Ung: I appreciate that...I have been giving leeway but I...I have a revolution on my hand I think I'd be disposed if I didn't. Cause you know I've made myself clear on that and we're not the counsel and we're... I understand. But I...thank you. I'll return to being quiet now thank you. Good morning. I'm Jules Ung from Department of IT. I'm part of the Executive Committee that oversees the implementation of EnerGov as well as Sheila Cadaoas's contract. So...although it was written and signed off by DPW the executive committee manages Sheila and the implementation of the software system. In regards to the claim from the software provider...Tyler Technologies...that we are you know how many hours over budget which equates to a dollar figure...that's currently in dispute...so with every major project...project management is so critical because you will run into disputes. I recently spoke to the CIO of Honolulu, City and County Oahu and he says...because of so many disputes you know...they are required to have a consultant coordinate every major IT project. Maui County is implementing 13 Mr. Robinson: Ms. Ung: the same system...it's Tyler Technologies...it's EnerGov...we're kind of partners in this...and we're allies. So they have a consultant gardener... you know who is with them every step of the way guiding the implementation...making sure that they are not getting stepped on by the software provider...Hawai`i County doesn't have that...and we saw that as a big disadvantage. So to retain an employee...a former employee that has 20 something years of experience...who participated in writing the RFP...who is on the vendor selection committee...that's already halfway of the project right there...you know that planning and that insight and that experience...and then once the contract with the software provider is signed and accepted...that begins the second half...so that second half began right as she was trying to decide...am I gonna stay... am I gonna quit... am I gonna retire. I saw it as a huge advantage to Hawaii County to retain that experience and that participation in the project. So that's where I'm coming from. Yes...the software provider is saying we are 700 hours over budget...but we can dispute that and that's what we are doing right now. We're trying to protect the County and Sheila is leading that charge. So if I could in your opinion then...the participation of Ms. Cadaoas is not incidental to the creation of the software but rather the implementation of it so that as the County goes forward other people will be utilizing it she won't be the sole gate keeper. Oh absolutely...and what Ms. Novak may not realize is that is every single application staff member in DIT along with system support staff are fully participative in the implementation process we are maxed out and in the light of this eruption...it is a blessing that we have someone like Sheila...and we have that contract to oversee and make sure that we're not dropping balls despite day to day operations that have to go on. Mr. Goodenow: Further discussion anyone? Ms. Sumner -Mack: Just to follow-up on my earlier question. Is it...have you been involved in evaluating the performance to date so that... has anyone asked you to evaluate. Ms. Ung: That's actually in our court...we should be crossing the T's and dotting the I's as following the terms of the contract. Mr. Goodenow: I'm sorry...I hate to interrupt...I really do...but you know Corp. Counsel looked at me and I do feel a...you know that the question might be the relevancy to the...to our charge as the Board of Ethics 14 Mr. Yoshimoto: Mr. Goodenow: Mr. Richardson: Mr. Goodenow: Ms. Sumner -Mack: and are we kind of overlapping into other areas that are best left to...it's assigned to other...agencies...so but like I said I appreciate in the sense it kind of we're looking at this big ethical picture of not just a specific incident...the Corp. Counsel I believe you have a comment on that. Yeah I have...I would caution again the Board to delve beyond the Code of Ethics because if we're talking about someone's job performance...that's not the subject of this petition...the subject of this petition is ethical violations as indicated in the petition so while that's part of the contract...I don't feel comfortable in the Board moving forward on job performance because Sheila's not here...she's not the subject of this...this is for the administration to answer so...I just have... I don't know if there are other legal concerns...should we go into executive session? We don't want to jeopardize the County in any way. Wait...wait before we do that...I'd like to disagree...I believe that the presentation with her originally was at this...this contract was a gift for Ms. Cadaoas...not knowing Ms. Cadaoas...not knowing the background of how this project was going along...we decided...last time we decided we couldn't make a decision on that...now this time we are hearing more information regarding project performance...regarding Ms. Cadaoas's performance within the creation of that and we're hearing that this is not a gift but we're hearing that she is incidental to this project going forward. In my opinion, that's definitely speaks to the ethics of this...that is not a gift...it is performance related. So I would disagree with that. Alright...Corp. Counsel if you could step in if you feel we're violating any laws but I'm okay with that...I'm willing to go along with that. Well I wanted to say that I did not intend to ask for the performance evaluation... so I was only asking whether...Ms. Ung had been asked for a performance evaluation prior to the deadline of I think is June 15 or something when the contract is scheduled to be either terminated or renewed...I was not asking for a performance evaluation. Thank you. Ms. Ung: Sure...sure. That would be our responsibility to make sure we follow the contract. Since we are... 15 Ms. Sumner -Mack: Have you been asked for that? Ms. Ung: No. I have not been asked. I am part of the executive committee...so we should be asking. Mr. Goodenow: Okay. Thank you. Anyone else... .or Mr. Robinson: Mr. Brilhante: Just one more question...but not for Mr. Okabe or Ms. Ung. For Mr. Brilhante...I'm just curious how many contracts like this exist? Good morning. William Brilhante. County of Hawai`i HR Director. Thank you very much. Commissioner Robinson, thank you for allowing me the opportunity to come up and give some input. Right now we have 14 employment contracts within the County...County wide you know out of our 2,700 employees we have 14. Out of those 14 besides this current contract we're discussing...there's two other individuals who previously worked for the County... so total of three. It's not wide spread. It's not rampant. The reason these contracts are in place is cause often times we have employees with significant years of institutional knowledge. They've been with the County for two maybe some of them even three decades working full time with the County...and when we lose them... we lose that knowledge base...we lose that experience...and we lose that ability to have a firm understanding of you know what it takes to specifically engage in a particular project. All of these 14 employment contracts a number of them are for consultative services...which is kind of the basis that we engage Ms. Cadaoas as well...you know with the migration to EnerGov...you know from the previous software program. And again it was a very fortuitous situation for the County. Ms. Cadaoas had significant years of service... she was working on the project previously...she submitted a notice to the County that she was going to be retiring. In lieu of her retirement we're able to come up with a system to maintain again her institutional knowledge and knowledge base for this particular project cause she was assigned to it. She agreed to take a cut in pay... in accordance with the reduction in the amount of hours that she was required to work...so she went from a full time employee...to a three quarters time employee...because she needed the additional time to take care of her personal issues...that arose...and necessitated her request to resign. In the way were any promises made or grants provided to her...special privileges...it was just a win-win for both the County and Ms. Cadaoas. Going forward, I'm just going to caution and Mr. Corp. Counsel, Deputy Corp. Counsel Yoshimoto brought it up is...when we're discussing an 16 evaluation of employee's performance...that's very tenuous ground...that's protected information and it's up to the employee themselves to determine whether or not they consent to that discussion be made in public. Under the Law...that's a private discussion. The contracting party here is Department of Public Works so going forward it would be the Director of the Department of Public Works to make the evaluation assessment as to whether or not the contractee is performing you know up to their expectations...if they are...then great we go forward but if they're not...we have various steps and procedures in place to either...the employee to have the opportunity to increase their output or if the department head makes a determination that is just not beneficial for the County moving forward then we have a provision in the contract that we can allow that contract to terminate. The final thing I just wanna say is the justification or the rationale for the reason as to why the Finance Director has to reevaluate the contract...is specifically related to the availability of funds...when the County enters into a contract we only the County can only guarantee funds for that particular fiscal year. County fiscal year runs from July 1 to June 30th of each year. In this case, the contract in question, supercede or went beyond the June 30th deadline...so come July 1, there's no guarantee that funds will be available...so it's at that time by law...by operation of law...the Finance Director has to look at all those multiyear contracts and make a determination as to whether or not the funds are available. And that's the process and that's why that language is specifically stated in the contract. I hope I was able to answer some of your questions. Mr. Goodenow: Okay. Any other...I guess we still need a motion technically...but any other questions? Ms. Sumner -Mack: Mr. Brilhante: I just have a couple ball questions if you don't mind. Thank you very much for your testimony...you've answered in part one of the questions I had which was how many years of this employee was...what was her seniority status? It was my understanding at the time she submitted her resignation she can qualify for retirement... so she met the minimum requirements for retirement at the time. Ms. Sumner -Mack: Oh but you said you didn't know the number of years...maybe that's privileged information as well. Mr. Brilhante: As to how many specific years? 17 Ms. Sumner -Mack: Mr. Brilhante: Ms. Sumner -Mack: Mr. Brilhante: Ms. Sumner -Mack: Mr. Brilhante: Ms. Sumner -Mack: Mr. Goodenow: Mr. Brilhante: Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: How many years had she worked for the County? You know I'm not sure what her position would...would qualify...what the qualifications would be for her specific position...but I know she met the minimum qualifications to be able to retire with full her retirement benefits. Her reduced salary was in consideration of the reduced reduction in hours. That's correct. So it was not an actual...reduction in the hourly rate or monthly rate that she was receiving it was based on the reduction of hours. Correct. Thank you. Any other questions for Mr. Brilhante? One for the record here since at some point we'll have to have an order but...Ms. Novak has alleged the violation of the fair treatment provisions but also the contract provisions section 285 with says the County agency shall not enter into a contract with any person or business which is represented by a person who was employee of the agency within the preceding two years and who participated while in County office or employment in the matter with which the contract is directly concerned or personally participated in the decision making capacity, etc. Could you address that? I'm going to defer that to Corp. Counsel that yeah I think you're looking for a legal opinion. Okay...I just thought...I didn't know... Did you want to go into executive session or...? Maybe we...any preference on that we don't even have any motion yet. We got a motion we're just continuing discussion from last time. No...the motion failed so we need a new motion at some point to approve or I mean... 18 Mr. Robinson: Mr. Goodenow: For purpose of moving this forward...I'll make a motion that we find that there's been no violation of the Ethics...rules regarding the awarding of this contract to Ms. Cadaoas. Okay. Thank you. Can I have a second on that? I'll second it if that's permitted. Okay... it's been moved and seconded... so now we are in the discussion phase...you can still ask questions if you want to of anyone but we are in discussion. Ms. Sumner -Mack: Can we still go into executive session to discuss this? Mr. Goodenow: Oh sure...right. You just say I want to go into executive session. Ms. Sumner -Mack: I request that we go into executive session to discuss this motion. Mr. Robinson: Second. Mr. Goodenow: Right to consult with our attorney Mr. Yoshimoto. Ms. Sumner -Mack: Without question. Mr. Yoshimoto: The purpose of the executive session is to consult with the Board's attorney re his powers, duties, and liabilities. Mr. Goodenow: Thank you. It's been moved and seconded. Any discussion? If not...all those in favor please say aye...motion carries four to zero. Thank you...we'll take a recess to go into executive session. Thank you. Motion and Vote: Ms. Sumner -Mack moved to go into executive session. Mr. Robinson seconded the motion. All members voted aye. 10:50 a.m. The Board took a short recess. 10:51 a.m. The Board moved into executive session. * * * * * 11:12 a.m. The Board returned from executive session. Mr. Goodenow: Mr. Robinson: Calling the meeting back to order. We are in open session again. There is a pending motion on the floor to find that there's been no violation of the Ethics Code in reference to this petition. We are still on discussion. Anyone care to add to the discussion? When we heard the petition last time from Ms. Novak...I understood her concerns clearly. Today we've heard further information from Mr. Brilhante and Ms. Ung regarding how the 19 Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Yoshimoto: contract was established and what the work is going forward on the EnerGov...which has been extremely helpful I think that we had that last time we could have addressed it a lot better. I do have concerns on the contract itself specifically the reference to the 76- 77 (16) I feel that that doesn't address this but does it rise to the level of an ethics violation...I'm not sure but I really think that that section of the contract is incorrect but that's just my feeling. But has been really helpful for me today to have the other presentations from Mr. Brilhante and Ms. Ung. Anyone else before voting? I think we need to think of how we're going to you know...we can vote and then discuss what we want to include on the order could we do a second motion...or should we... I think we should do it initially right. Alright I don't know to me I of course agree that this really is...you know we need to strictly look at the ethics code...the question is whether there's been probable cause and an ethics violation has been committed and while I agree that you know especially that exception subsection 16 or whatever it is right. It's not our job and though we have concerns...the bottom line is there's not enough evidence to meet the threshold finding that there's been an ethics probable cause with an ethics violation has been committed...it's my feeling and I think and I think we should put that in the order. I think we can...and it's okay to put in some admonitory language or you know expressing of our idea about how the these contracts work and what we feel you know that's fine but again I agree with the conclusion bottom line as far as the ethics code...we find that there's no violation and that the order be drafted to reflect that. Any other discussion before we vote. Yes. If I could. I hope you don't mind. The part that Ms. Novak appeals on the 2-86 contracts...we read that carefully...I don't see where that would apply this situation had the person who is Ms. Cadaoas had she left the County and come back in some way to represent a company that would be a concern. But in this case it was a continuation of her current employment with the County and so didn't feel that that was a violation in that regard. Thank you for reminding us of that...right I mean...I think when you have to you read the code together with a section 91... 2-91.2 (c) I think is what you're referring to. 20 Mr. Goodenow: Right...when you read it in connection with that it...there... is clear that people can be hired post -employment right that so the correct interpretation would be that the 2-85 really refers to contracts for goods and services and is separate from employment. Any comment on that particular point anyone? Mr. Yoshimoto...we're okay? Mr. Yoshimoto: Yes. Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Thank you and I guess as far as 2-83 which is finding that while there has been some evidence do we want to say irregularities or it doesn't necessarily provide sufficient evidence to show that the department, the Mayor's Office, or whatever. With whatever...all the parties specifically violated the fair treatment provision...is that sufficient? I wonder if we can instead of saying we have found...we could say it appears from what we've heard today that there was no violation of the Code of Ethics...just that it appears. I think we ought to say something thoughtful about sole source contracts...which Mr. Wiseman pointed out...seems to be the classification for this contract...and so we need to caution that a sole source contract needs to have a sufficient and documented rational...in detail from those and that's all. Maybe just add to that...to be clear that there's no appearance of impropriety...right...maybe something like that. Mr. Yoshimoto? Is that...are we all in agreement with that...you understand how to translate that into our order? Mr. Yoshimoto: I appreciate as much guidance as the Board can give me so whatever the Board wants me to put in the opinion I will. Nan? Ms. Sumner Mack: Just one more thing we did discuss that...the exception...No. 16 cited in the contract...may not apply to this contract...well should not have been cited as justification for this. Mr. Yoshimoto: So the Board questions the application... Ms. Sumner -Mack: The application of the exception...exemption 16. Mr. Goodenow: Right but maybe we could add...but in and of itself is not evidence of a violation of the Code of Ethics or something like that. Alright. Anything else? 21 Mr. Robinson: Ms. Sumner -Mack: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Mr. Wiseman: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Ms. Novak: Mr. Yoshimoto: Ms. Novak: Well if I could Ms. Novak...I understood why you brought this and I thank you for bringing it to us and letting us have this discussion...it's been very helpful for us to understand...in the full context and has helpful today for Mr. Brilhante and Ms. Ung to come and give presentations too to help us understand from their side...what the context of the contract being issued and why it was issued. I can understand that it's always a concern but I think we've heard a lot of information on this...and understand the situation a lot better this time around. I wanna express my thanks too. I admire your courage too...and I hope that if there is any retaliation which is a...maybe a fear...that you will report it immediately...that is a violation of the Code of Ethics...without question. Okay. Seeing no further discussion...all those in favor of the motion which is to find no violation as discussed please say aye. Aye. Any opposed? And I believe... I abstain. Right. We have one abstention from David. Thank you. So the vote is three in favor. With all of the items that we done. Right. With all the...warnings...caveats...that we included. Okay. Thank you...moving on to the next item of business. Will I get a copy of that...decision order? Yes. Thank you. Thank you. Motion and Vote: Mr. Robinson moved for a motion finding no violation to the Ethics. Mr. Goodenow seconded. Mr. Wiseman abstained. Vote is three in favor. 11:21 b. Petition 2018-05: Review draft 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 Hawaii County Council. 22 Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: I don't know if the staff...if anyone's here to testify on that...did we ask... That's just the informal opinion. Oh the opinion right...I don't...I know we had it...I misplaced my copy...I mean I stuck it in here. Any issues with that? You can sign my copy. I have no issues with it at all. Alright. All those in favor please... Oh do I need a motion to approve. I make a motion to approve the informal advisory opinion regarding Mr. Richards. Do we have a second? Ms. Sumner -Mack: I'll second. Mr. Goodenow: Mr. Goodenow: Mr. Wiseman: Mr. Goodenow: Okay. Any discussion. All those in favor please say aye. Any opposed say no. I take it we have one abstention. Yes I abstain. Okay so three ayes and one abstention. Motion and Vote: Mr. Robinson moved for a motion to approve the informal advisory opinion regarding Mr. Richards. Ms. Sumner -Mack seconded. Mr. Wiseman abstained. Three Members voted aye. 7. VOTING ON EXECUTIVE SESSION MATTERS (11:22 a.m.) 11:22 a.m. a. Review of the executive session minutes of March 19, 2018. Mr. Goodenow: Moving on to the next item of business...Executive Session. With reference to the agenda items listed...the executive session minutes of March 19 and the confidential financial disclosure form... we anticipate...we're going to consider the evaluation dismissal or disciplining of an officer, employee or consideration of matters affecting privacy will be involved and so that we may consult with her attorney on questions and issues pertaining to her powers, duties, privileges, immunities and liabilities...these items...may I have a motion that we go into executive session on those grounds. 23 Mr. Robinson: Motion for executive session. Mr. Wiseman: I second. Mr. Goodenow: Okay. It's been moved and seconded... all those in favor please say aye. Mr. Goodenow: Any opposed? Motion carries four to zero. We'll recess to go into executive session. Motion and Vote: Mr. Robinson moved to go into executive session. Mr. Wiseman seconded. All members voted aye. 11:29 a.m. The Board moved into executive session. 11:47 a.m. The Board returned into regular session. Mr. Goodenow: Calling the meeting back to order. We are now in open session. We are still on item 7a. May I have a motion to approve the Executive Session Minutes of March 19. Mr. Robinson: So moved. Ms. Sumner -Mack: Second. Mr. Goodenow: It's been moved and seconded. Any discussion? All those in favor say aye. Mr. Goodenow: Any opposed. We have an abstention? Mr. Wiseman: Yes. I abstain. Mr. Goodenow: Okay. Motion carries...three ayes...one abstention. Motion and Vote: Mr. Robinson moved to approve Executive Session Minutes of March 19. Ms. Sumner -Mack seconded. Three members voted aye. One member abstained. 11:48 a.m. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. 24 Mr. Goodenow: Next matter. Review of Confidential Financial Disclosure Forms. Can I have a motion to accept...oh I guess we need to know which forms aren't...can we get the numbers for that please Madam Secretary. Ms. Hirayama: Items 8 and 13 were not approved. Mr. Goodenow: Okay. So can I have a motion to approve all the items except for No. 8 and 13. Mr. Robinson: Mr. Wiseman: Mr. Goodenow: So moved. Pass. Okay. It's been moved and seconded. Any discussion...seeing none...all in favor please say aye...any opposed...motion carries four to zero. Motion and Vote: Mr. Robinson moved to approve all the items except for No. 8 and No. 13. Mr. Wiseman seconded. All members voted aye. 8. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII. (11:50 a.m.) 11:50 a.m. a. Correspondence dated May 7, 2018 from Vice -Chair Goodenow. Mr. Goodenow: Mr. Wiseman: Mr. Goodenow: Mr. Richardson: We are next on Item 8. For our new member...we have been...I don't know if you've seen some our communications on this subject but at the last meeting...we passed out a...regarding rules 2 and 3...we're on No. 3. And we kind of go through um...make notes and then I usually pass out for the next meeting...I believe we'd be doing 4 and 5 or...But unfortunately I didn't complete it...so this one time I'd like to get a pass on that but we could either...but as far as 2 and 3...these are pretty straight forward. Unless our newest member would like to get up to speed. We got these binders...I don't know I sent them out... it's got all the codes from all the counties and I don't believe you have that yet. I'll go through it with the members. Okay. But we'll be sure to get one of these binders for next time. So what you're saying is...this discussion regarding the amendments is...we're gonna continue it next time. 25 Mr. Goodenow: We could cause I didn't do the ones for next time or we could do 2 and 3 and next time I'll just pass out and not have one next time. Mr. Richardson: Mr. Goodenow: Ms. Sumner -Mack: Mr. Yoshimoto: Ms. Sumner -Mack: Mr. Robinson: Ms. Sumner—Mack: Mr. Goodenow: Ms. Hirayama: Mr. Goodenow: Mr. Goodenow: Ms. Hirayama: Mr. Goodenow: Mr. Richardson: I'd rather just do them all at one time. Yeah so could be continue this to the next meeting? If we have it while I'm here. Otherwise it's not fair. Yeah that's the next question. That's the next decision. Are you going on vacation Nan? Yeah I 'm going to be away from the 10th of July until August, the first of August. When is our meeting currently scheduled for? There wasn't a meeting date selected since you had to leave before you could get to that portion. Oh so we don't have June or July selected. Oh this is June...we don't have July or August? No not yet. I do have dates so...if you folks want to review them. Well we should finish this item. And that would give you more time to review it so let's...I'm just going to continue as Chair to the next meeting. This correspondence dated May 7th and I'll also send out another communication regarding the other rules. We can do it at one time. Yes do it all at one time. Motion: Mr. Goodenow moved to continue discussion regarding amendments to next session. 9. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (11:51 a.m.) Mr. Goodenow: Alright...moving on to No. 9 then discussion regarding changes to the Board of Ethics monthly meeting schedule...because the rules say that we have to meet the second Wednesday and I'm on the 26 Ms. Sumner -Mack: Mr. Goodenow: Ms. Hirayama: Mr. Goodenow: campaign spending commission and they meet always the second Wednesdays...we usually have to suspend the rules and pick a date...but if we have it June 11 is the. July 11 thank you would be the 2nd Wednesday...but we wanna move that too...and that's not the campaign spending commission by the way...they moved it...but if we want it before the 10th ...would we be looking at what July. It could be the 9th or could be the first week. Any openings do you think for that? Normally it would be on the second Wednesday which would be July 11th...however Council is holding their meeting in this area. So right now I tentatively have it for that Thursday, July 12 in this conference room. But we wanna see it if we can do it before... Ms. Sumner -Mack: Can we do it the 9th or... Ms. Hirayama: Mr. Wiseman: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Robinson: Ms. Sumner -Mack Mr. Robinson: I would have to double check with County Parks if the room is available. Why don't we select a tentative date subject to conversation? Well I'm available on the 9th I'm available on the 9th also...just that at 12:30 I gotta do actually next door for a foreclosure auction...that's not until 12:30 so I'm good. In the morning so as long as it's not a long meeting. Could I suggest that... To get a twofer. Do a what? Foreclosure sale. Ms. Sumner -Mack: Oh and you get paid to come over. Mr. Robinson: Twice...I have two for twice. 27 Mr. Goodenow: Mr. Yoshimoto: Mr. Goodenow: Mr. Robinson: Mr. Goodenow: Mr. Wiseman: Mr. Goodenow: Ms. Sumner -Mack: Mr. Goodenow: Mr. Goodenow: So that sounds like a good date if...if it doesn't work out though...the Chair can just set the meeting right? We just say or the call of the Chair as our back up. You have a second date since we're all here. Plan B just in case. I'm not available the 5th...I have...I mean all the court piles up I guess from the holiday...but I could do it on the 6th after if we had it at 10...I have 8 o'clock court. 6th is fine for me too. So I guess the motion is to have it on July 9 or if that's not available...July 6....or if that's not available at the Chair's discretion as long as they do the proper legal notice and all that. Okay if that's the motion if someone could move that. Yes, I'll move. And a second. Second. And again we're suspending the rules so we need a two-thirds vote and we'll just do one motion to suspend the rules and improve it...any discussion? Seeing none. All in favor? Said motion carries unanimously four to zero. Motion and Vote: Mr. Wiseman moved to suspend the rules and change the regular scheduled meeting date to July 9 or July 6. Ms. Sumner -Mack seconded. All members voted aye. 10. ANNOUNCEMENTS (11:53 a.m.) Mr., Goodenow: We're on the next... announcement...does anyone have an announcement? Ms. Sumner -Mack: I was just wonder if you want to try to set... Mr. Goodenow: Okay. Ms. Sumner -Mack: Since its vacation time. Mr. Goodenow: It's a good idea. 28 Mr. Robinson: It's summertime and the living is easy. Ms. Hirayama: I have the date set for August 14th...which is a Tuesday. Mr. Goodenow: Tuesday. That's good for me. Ms. Sumner -Mack: It's good for me. Mr. Wiseman: Good. Mr. Goodenow: Okay so just a quick vote to suspend the rules and it makes August 14 the August date. If I could get that motion. Mr. Wiseman: So moved. Mr. Goodenow: Second? Ms. Sumner -Mack: Second. Mr. Goodenow: Any discussion? All those in favor please say aye...alright motion carries four to zero. Any announcements? Okay seeing none. Motion and Vote: Mr. Wiseman moved to suspend the rules and scheduled meeting for August 14. Ms. Sumner -Mack seconded. All members voted aye. 11. ADJOURNMENT (11:53 a.m.) Mr. Goodenow: Moving adjournment. I guess if I could have a motion to adjourn. Mr. Wiseman: So move. Ms. Sumner -Mack: Second. Mr. Goodenow: Alright... it's been moved and seconded. All in favor say aye...motion carries four to zero. Meeting is adjourned. Motion and Vote: Mr. Wiseman moved to adjourn. Ms. Sumner -Mack seconded. All members voted aye. Respectfully submitted: Maria Pagala, Secretary 29