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HomeMy WebLinkAbout12-12-18 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Wednesday, December 12, 2018 10:02 a.m. to 11:32 a.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice-Chair Nan Sumner-Mack, Member David Wiseman, Member Amy Self, Deputy Corporation Counsel Maria Pagala, Secretary 1. CALL TO ORDER (10:02 a.m.) Ms. Kahakalau: Okay. It's 10 o'clock and so I call the Board of Ethics meeting of the County of Hawaii for December 12, 2018 to order. I'd like to do introductions first. Aloha kakahiaka...good morning. My name is Ku Kahakalau and I'm the Chair for two more minutes... Mr. Goodenow: No. Ms. Kahakalau: One more meeting today and I want to turn it over to my colleagues here now. Mr. Goodenow: Ken Goodenow, Vice-Chair. Ms. Sumner-Mack: Nan Sumner-Mack, Member. Mr. Wiseman: David Wiseman, Member. Ms. Kahakalau: Thank you very much...we have one statement from the public on agenda item...which is Armon Coltman. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:02 a.m.) Ms. Kahakalau: If you could please come to the front sir and tell us what business item...agenda item to which you are speaking to...and introduce yourself. 1 • • Mr. Colima: Good morning and it's not actually not an agenda item. It's a comment that I wanted to make at the last meeting but counsel advised against it because you were in recess at the time. Ms. Kahakalau: Can you please state your name for the record please...thank you. Mr. Collman: Yes...Armon Collman. My comment is...is that I'm very appreciative that you're going through this review process for the ethics commission. As I can tell from Mr. Goodenow's work at trying to make this very simple for most people to be able to understand the legalese that's involved with it as well. I only have one question for you though is...is that in all of the ethics rules that are available worldwide and nationwide...I'm curious as to why you limited your vision to the islands? Mr. Goodenow: That's a very good question...and I think there's two points regarding that. One is that...we are confined by our charter and our code. And at least as far as the charters are concerned our counties are similar in that respect. I can't just come out with rules and that's why I said we have to stop if you...you know my memo I sent out. Because wait the code doesn't give...we'll get into that later right but that's one reason cause it has be in those confines. But the other reason too is that there is a body of case law or published opinions is better to say...not case law but their published opinions from the other counties and because a lot of the language is similar. Especially is to the fair treatment and that those provisions right. It kind of makes...you know we have that to look at. But I hear what you're saying. To be honest...our goal for revising the rules...there are two goals really. One is to allow us to do civil fines as ordered by the County Council and 08-57 the ordinance right? So...it wasn't our goal to come up the...maybe the very best...that's really the policy of the County Council...right and the members of the charter commission. We're really just trying to fashion our rules to follow the code. But at the same time our other goal was Mr. Tucker came in he felt, he didn't have a fair shake at this thing. And to be honest...because under our current system in the code...it's like we have an informal hearing right...then you have a formal hearing and then the employee has a chapter 91 hearing in the department which is closed and there's no mechanism for someone who felt a grieve to take it to the next level. So that is our other goal, is to at least have a process where both the respondent who's being accused and the complainant who is making the complaint have equal due process...a hearing where there can be a decision that at least comports with due process and chapter 91. So that's my long and convoluted answer. But I think it's a good one and I 2 hope the charter commission and the county council take a step back and say hey...maybe we should allow the board of ethics to impeach elected officials if they find a violation right. Maybe we should have a system where... I mean there's a lot of options that's just one example I throw out without saying I'm for or against it cause that's not really our job to set the policy on that but thank you very much for your question. Ms. Kahakalau: I'd also like to quickly respond. One of the best practices is also to review you know our kuleana our responsibility is on a regular basis. And that means that you know we went through that process now because it hadn't been done for a little while and we certainly hope that it will continue in the future that every so often that the board looks at the...the charter looks at what our responsibilities are and then looks at you know making amendments if necessary that will fit the times and the situations. Also you know with new laws being implemented as we had last summer. There's always a need to adjust. Mr. Collman: Thank you. That, I think, satisfies my question. But I only have one other suggestion or one other request and that is I see that you're going into executive session as usual so would you set the next month's date for meeting before then. Ms. Kahakalau: I think...I don't have any objection if one of the members would like make a motion to move the number 8 agenda item...number 8 prior to going in to 6. executive session. Ms. Sumner-Mack: I will move. Mr. Goodenow: I'll second. Ms. Kahakalau: Okay we have a motion and we have second. Any discussion? Motion and Vote: Ms. Sumner-Mack moved to go onto agenda item 8. prior to the executive session. Mr. Goodenow seconded. All present members voted aye. 8. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (10:09 a.m.) 9. ANNOUNCEMENTS (10:09 a.m.) Ms. Kahakalau: Alright then next month's meeting schedule...Maria do we have anything there? Ms. Pagala: January 7. 3 Ms. Sumner-Mack: January 7 which is a Monday isn't it. Ms. Self: Excuse me there's a motion on the table right? Ms. Sumner-Mack: We're discussing right? Ms. Self: I'm just making sure. Mr. Goodenow: Thank you. I have 9:30 court on January 7 but hopefully I won't be too late. Ms. Sumner-Mack: Seventh...it's right here on the announcement. Mr. Goodenow: January 7`h right? Ms. Sumner-Mack: It's scheduled for January 7`h. Ms. Kahakalau: Yeah. Mr. Goodenow: Okay. At? Ms. Sumner-Mack: At 10 o'clock. Mr. Goodenow: Right. I might be late. I just looked at my calendar and went. Mr. Collman: That's why I ask cause I know there's always conflict so. Thank you very much though. Mr. Goodenow: Are we gonna keep that date? Ms. Kahakalau: If everybody's fine with that, I am. Mr. Goodenow: Yeah. Ms. Sumner-Mack: I am. Ms. Kahakalau: Yeah, okay so as far as the schedule is concerned for January we're keeping the January 7`h date, 10 o'clock here. Mr. Goodenow: Thank you. Ms. Self: You guys had a motion on the table. Ms. Kahakalau: Oh...I'm sorry. 4 Ms. Self: And there's nothing else. You have a first and a second. Ms. Kahakalau: The motion was to confirm the monthly meeting for January 7`h Mr. Goodenow: I seconded. Ms. Kahakalau: And you seconded it. We discussed it. Any other discussion? All in favor say aye. Any opposed? So that motion is carried. I apologize. Motion and Vote: There was a motion to set the next scheduled meeting date to January 7. Mr. Goodenow seconded. All present members voted aye. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF NOVEMBER 13, 2018 (10:11 a.m.) Ms. Kahakalau: Our next item on the agenda is item 3. approval of the regular session minutes of November 13, 2018. We've had a chance to review those minutes. Mr. Wiseman: And moving to adopt the minutes. As you know I wasn't here, I was absent last meeting but I did get a copy of the transcribed minutes. And first of all, after at least two hours of reading them, my compliments to number 1...the staff in transcribing these without one single typo in about 50 pages. Job well done. And it was a very thorough discussion and detailed discussion...so with that I move to adopt. Ms. Kahakalau: Thank you. Mr. Goodenow: Second. Ms. Kahakalau: Any further discussion in regards to the minutes? None. Are you okay? Ms. Sumner-Mack: Okay. Ms. Kahakalau: Yeah. Then I will call for the question. All in favor of approving the minutes of the November 13 meeting say aye. Any opposed? Motion is carried. Thank you. Motion and Vote: Mr. Wiseman moved to approve the regular session minutes of November 13, 2018. Mr. Goodenow seconded. All present members voted aye. 4. NEW BUSINESS (10:13 a.m.) 5 a. Election of Officers (Chair and Vice-Chair) Ms. Kahakalau: New business is election of officers, chair and vice-chair. So I need to get some.lelp from counsel here in regards to what's happening and-how the Sa: ty decided whose term is up when or if you know I'm just very unclear as to who, if my term expired and Ken's didn't. Or where we are with the status of the Board at this point and time. Or are we just doing regular yearly new appointments or elections and everybody stays on the board...so that's kind of my question. Mr. Wiseman: I don't think the last list I saw about the expiration of terms. I don't think anyone's term is near expired...and as you know Nan and I just came on. Mr. Goodenow: My understanding from the past was that both Ku and I would be off in June. Though I understand that is a little odd cause they're staggered. But when I looked on the website the other day on the fact sheet, it had Ku's term expiring today or the 31' which I thought was odd and a surprise. Ms. Self: I'm not the regular attorney for this Board but there's a letter from former Mayor, Billy Kenoi and it says that if confirmed, she will serve a term to expire on December 31, 2018. So I have a feeling that, that's probably because she was completing the term of someone that left before the end of their term. That's all that comes to mind. Ms. Kahakalau: Okay. Thank you. We just wanted to confirm it...you I made a commitment for five years...I was certainly willing to serve my five years but I'm also perfectly fine if that is the case and my term expires at the end of this month...I will gladly turn over my seat to somebody else. I just want to apologize officially then that I wasn't more proactive in seeking replacement. Because that was a big issue for a long time when Ken and I first came in that we couldn't get a quorum because we couldn't find members and I had made it one of my personal goals you know to make sure that whenever somebody's term expired that I would make sure that there was at least a replacements in the pipeline. And maybe during this administration it might not take as long...we don't quite know that but as I said this comes as a surprise to me...it's fine. I'm not objecting or anything but I do want to apologize for not having been proactive in terms of seeking somebody...that was something that was on my agenda for early next year so that by June, for sure we would have you know people in the pipeline. 6 Mr. Wiseman: Well I'm objecting to you leaving. If this was my court, I would issue a court order extending your term. Ms. Sumner-Mack: I have a point of order if you don't mind. I think we should introduce Amy as part...be on the record. She's serving in place of... Ms. Kahakalau: I apologize we should have done that right at the beginning and maybe she can do that. Ms. Self: I don't know how the term was. How long have you been on this Board? Ms. Kahakalau: It hasn't been five years. It would five years in June...yeah. Ms. Self: Because you can stay on for...what is it...90 days? Ms. Kahakalau: Well to me, if that's what the letter says that's when my term expires. I'll be fine with that. I just did want to apologize for not being more proactive in that case of finding a replacement but I will help in terms of you know just asking some people if they were interested and to submit their resumes which is usually what we do and I would also like to ask the rest of the Board Members to please consider...you know if you know somebody that you think would be a good person to serve on this board. To ask them to submit a resume to the Mayor with the request of you know that they're interested in serving on the board. Ms. Sumner-Mack: I know such a person and he...sat in last time and he's applied formally but he hasn't heard anything so. But again I'd like to have Amy introduced or introduce herself. Ms. Kahakalau: Yes. Ms. Self: Deputy Corporation Counsel, Amy Self. What I will do is I will bring this up to J. J didn't mention this to me so I'm gonna bring this up to him and maybe he can work with the Mayor's office to...would you be willing to serve...if you serve...if you've served... If you come in and you're filling...serving out the rest of someone else's term which I believe is what happened here. As long as it hasn't been two years or more...they can appoint you to a five year term. But if it's been more than two years, the charter says... Ms. Kahakalau: It has been. 7 Mr. Wiseman: There is no restriction on term limits is there? She could be the appointed if we nominate her. Ms. Self: That's what I'm saying...the charter says if..she has served no more than two years. Ms. Kahakalau: Which I have. It's been definitely more than two years. And did have the discussion with J and he would look into it further because we were just...I was really surprised with the date but as I said if that's what the letter stated at that point...I said I am fine with this term and I can always apply again you know if that's something I have time for. Mr. Goodenow: If I could just ask quickly. I mean as far as our terms and Rick's term...because it does say in charter...like it's staggered every year. When are...I guess I'm December 315`of next year. Is that correct? Do you have the fact sheet on that? I then I think Rick would be December 3151 of the next year. But I don't know about you two. Ms. Sumner-Mack: Oh I've only been a year. Mr. Wiseman: We're 2021 somewhere. Mr. Goodenow: Yeah cause you're filling a term though right a five year term. Mr. Wiseman: Notwithstanding the term was two years or five years for you. You know I would consider making a motion too...for the Board to the Mayor to have her renominated. Mr. Goodenow: I would agree with that however... Ms. Self: I've got it here. I can read from the charter what it says. New members shall be eligible for a second appointment to the same board or commission prior to the expiration of two years, however members of any board or commission appointed for a term of two years or less shall be eligible to succeed themselves for an additional full term. Ms. Kahakalau: Well no...I'm perfectly fine and I'm perfectly fine with leading the election of officers, new chair and vice-chair elections at this point and time. Ms. Self: And there is a holdover period. Mr. Goodenow: Yeah...read that. 8 Ms. Self: That's the 90 days I was referring to. Mr. Goodenow: Ninety days. Ms. Self: Where is it...I just had it. It says that if their successor hasn't been appointed and confirmed, the member shall continue to serve for ninety days or until a successor is appointed and confirmed whichever comes first. So you can continue until the find a successor...if you wish. Mr. Goodenow: But only up for ninety days, is that right? Ms. Self: Well it says...to continue to serve for ninety days or until a successor is appointed and confirmed, whichever comes first. Mr. Goodenow: First. Well ninety days is three months. Sorry...you know I don't know as far as finishing the rules and...just I know we don't have a motion or discussion ...I mean... Ms. Self: Okay...she has the...here are the terms current members. Ku is 12/21/18, Mr. Goodenow yours is 12/31/19, Rick Robinson 12/31/2020, Nan Sumner-Mack 12/31/22. Mr. Goodenow: So you're 22, you're 21. Ms. Kahakalau: But then the Judge isn't on there? Ms. Self: Who? Mr. Goodenow: He is. Ms. Pagala: I have to update the list. Ms. Self: Oh she has to update the list. Mr. Goodenow: So which of them goes first? Ms. Self: You, I think right? Mr. Goodenow: I mean between Sumner-Mack and... Ms. Sumner-Mack: I've just been on for one year so I should be ending in 22 and he should be ending in 23 cause he just came on. Mr. Goodenow: It's the term, not how long you've been on...but the term. 9 Ms. Self: Her term expires 2022. Mr. Goodenow: And his is 21. Ms. Self: I don't know which term he... Ms. Kahakalau: No Rick Robinson was 21. Mr. Goodenow: No he's 20. Ms. Self: Did he get appointed for a full 5 year term? Mr. Goodenow: Yeah, whose term did he take? That's the question. Mr. Wiseman: I had a four year term I think. Ms. Kahakalau: I don't think he took anybody's term. We didn't have any... Mr. Goodenow: There was a vacancy...he filled a vacancy. Ms. Self: So in other words if somebody resigns...then they appoint somebody to finish that term...so it depends on that person's term when that ended. Mr. Goodenow: Alright. Ms. Self: So that's what needs to be determined. Mr. Goodenow: Well just for future...maybe we could get an update on all our statuses. Ms. Kahakalau: As a best practice maybe I would suggest that a like a month or two prior to anybody's expiration date maybe just to kind of either via email or just a quick during one of our board meetings or putting it in the agenda just so that we're not as surprised as we are today. Because I asked J to look into it and he didn't get back to me and since I had been traveling...I just came home last night. And so I wasn't sure at all today where we were at. And either way it's fine with me. I enjoyed serving. But I'm also happy to pass on the gavel to somebody else. Ms. Sumner-Mack: I wonder if I might move that we ask Ku to stay on for another three months while we work out the proper procedure. Maybe there's not...if there's a set length of term and so on and an order of assuming that a chairmanship that maybe we shouldn't have an 10 election...we should just announce a process. But in the meantime, if Ku could stay on because Ken has gotten a lot of work on his plate already with these so anyway. Mr. Goodenow: Oh yeah. Mr. Sumner-Mack: Just a suggestion or a move. Ms. Self: There's no need for a motion. She can...it's just if she wants to continue she can until they find a replacement. So it's entirely up to... Mr. Goodenow: You thought it was June...so this is even...this is only half way. Ms. Kahakalau: The question I have then...are we going to be doing elections of offices. Is that a separate thing that has to happen every December? Is that what it is? Ms. Self: Yes...that's a separate issue. That's also in the charter. A chairperson shall be elected from its membership annually. Ms. Kahakalau: Okay. Mr. Goodenow: We still could elect Ku the Chair though. Even though her terms not expiring soon...for the three months and then we have to...well there'll be a vacancy for the chair. That would work huh? Ms. Self: Yes. If that becomes vacant then you would just elect another chair. Mr. Goodenow: I would support that. I don't know, we don't have a motion yet but I'll make a motion then that we... I move that Ku Kahakalau be elected Chair. I'll put myself forward as Vice-Chair. Ms. Self: Well I think we should do those separately cause you have to... Mr. Goodenow: I'll just move for that Ku be the Chair. Ms. Sumner-Mack: I'll second that. Ms. Kahakalau: So we have a motion. Thank you very much Mr. Goodenow. I had a second and do we have any discussion in regards to this matter? 11 Mr. Goodenow: Yeah. I do have some discussion and you know I was trying to talk before the meeting with Mr. Wiseman. We never really were able to talk and one of the things I wanted to talk about was my main goal is for these rules. I think we have a seriously flawed ethics process and we'll go into that when we talk about amending our rules and the way the code has everything set up. Ms. Self: Is this on the motion? Mr. Goodenow: Yes it is. Ms. Self: You're kind of getting far... Mr. Goodenow: It'd appreciate a little leeway your honor on the...but I will narrow my scope here. But so that's gonna require someone to testify at the charter commission most likely to represent us, the Board. It's gonna require perhaps working with the counsel chair...testifying at the county council. Now we see that this is what this is going to entail. Now I'm really happy you know and I've done the work and but I think...you know I'm going off in December as well and after the code is changed then they'll be spearheading the rules. I was going to ask Mr. Wiseman...I mean no offense Ms. Sumner- Mack...but since he's a retired Federal Judge...if he would be willing to be the Chair. Because this is a lot of work and I think the second set of eyes also you know looking at... And the experience involved so that's what I was planning to do today but since Ku is remaining...I think that's a good... I'll focus on that and I appreciate Ms. Self s guidance and limit it at that. I think you've done a great job. I think you should continue. Let's carry this through till we send it to the council and they get it. And then the rest of us can decide later where to go from there but that's my feeling at to where we are. Ms. Kahakalau: Thank you. Any other discussion? Could you make sure your mic is on? Thank you. Mr. Wiseman: I just express appreciation for your confidence in me for future. Ms. Sumner-Mack: I'm just wondering...I guess we have a quorum but where is Rick? Ms. Kahakalau: Oh he's excused today. Mr. Goodenow: If I may, I think that's a good reason that we have Ku stay in. Ms. Sumner-Mack: Absolutely. 12 Mr. Goodenow: And then we can look at the big picture after. I mean so Ku you'll give us time...and I hope you will stay on...that will be better and yeah... Mr. Wiseman: I agree. Ms. Kahakalau: As I said, it's been an honor to serve on the board and I'm generally a person who finishes what I start and so the rules...it would be important to me as well to finish the rules and that's why it was quite a surprise when all this happened so unexpectedly because as I said based on my timeline...it wasn't December of this year. So yeah, I'm fine with this nomination if the Board should vote in this manner. Any further discussion? Any further discussion? All in favor say aye. And I shall abstain. Okay motion is carried with one abstention. Next order of business is to elect the Vice-Chair. Do we have a nomination there? Ms. Sumner-Mack: I nominate Ken Goodenow. Mr. Wiseman: Second. Mr. Goodenow: I'll accept. He seconded. Ms. Kahakalau: He seconded. Okay just making sure. Is there any discussion in regards to that? No I think we have discussed why that is very important and I completely agree...call for the question...all in favor say aye. Any opposed. Mr. Goodenow: Abstain. Ms. Kahakalau: Okay so we have also the motion is carried with one abstention. Motion and Vote: Mr. Goodenow moved for Ku Kahakalau to serve as Chair. Ms. Sumner-Mack seconded. 3 members voted ayes. Ms. Kahakalau abstained. Ms. Sumner-Mack nominated Ken Goodenow as Vice-Chair. Mr. Wiseman seconded. 3 members voted ayes. Mr. Goodenow abstained. 5. UNFINISHED BUSINESS (10:30 a.m.) Ms. Kahakalau: Then we have no unfinished business. And so we will go into executive session once I get a motion. Mr. Goodenow: Sorry if I may make a motion that we move the discussion regarding amendments to the rules and practice out of order so the 13 common cause person. I mean if you're planning to stay...if you were just going to leave anyway...to hear our discussion on that. Ms. Sumner-Mack: He's league of women voters. Mr. Goodenow: League of women voters...I'm sorry. We'll just take it out of order. Ms. Kahakalau: So we have a motion to take agenda item 7. out of order. Any... Mr. Wiseman: Second. Ms. Kahakalau: A second. Any discussion? All in favor say aye. Motion is carried. So we are on agenda item 7. Motion and Vote: Mr. Goodenow moved to go onto item 7 on agenda. Mr. Wiseman seconded. All present members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE HAWAII COUNTY CHARTER AND COUNTY CODE. (10:31 a.m.) Ms. Kahakalau: We will start with the correspondence if it's okay dated December 4, from Vice-Chair Goodenow. If you would like to speak to that please. Mr. Goodenow: Sure...I move that we file it. Ms. Kahakalau: Okay. Did everybody have a chance to read that December 4th communication? Mr. Goodenow: I'm just moving to file then we can have discussion. Ms. Sumner-Mack: Which communication are we talking about? Mr. Goodenow: It's December 4th letter. It's this one right here. Ms. Kahakalau: Okay we have a motion to file this. Mr. Wiseman: And I will second the motion. That makes sense cause the county charter should come first yeah. Ms. Kahakalau: So now comes the discussion. 14 Mr. Goodenow: Yeah. Discussion. I'm gonna...look I'm really sorry I'm a little embarrassed to say that...in my defense when I took on this project...it had already gone on for some time...there had been discussion right and I had inherited it. And when I got it...I said look the way I'll do this is I'm gonna chapter by chapter...right and we do our revisions chapter by chapter. So it wasn't until I got to chapter 7 regarding the issuance of a formal opinion. When I went to compare it to the code. Cause you know I always look at the code to make sure it's alright. If you look I attached it to my letter kind of the last...second to the last page right. Yeah this position after formal opinion. Well it turns out that the way our code works is that...and I'll just read you know there's for elected officers and just regular officers so I'm reading for regular officers employees right? So if there is no compliance of a formal opinion against an employee and officer other than an officer removable only by impeachment...the board shall issue a complaint and refer the matter to the appointing authority having the power to discipline the employee. The complaint must contain a statement of the facts alleged to constitute the violation. Hearing shall be in accordance with chapter 91 Hawaii Revised Statutes except that every hearing shall be private etc., etc. I asked corp. counsel, well when I read this that means the department has the chapter 91 hearing. Not the board...and in that meeting when Mr. Yoshimoto and myself were there they concurred that yes. When you read it, that's what this means and because of that, the ordinance requiring fines if you look at also in the packet. Ms. Kahakalau: Its ordinance 08-57? Right. Mr. Goodenow: It say's...any county officer who violates a provision of this article shall be subject to an administrative fine imposed by the board of ethics. And it says we can't do that until requirements of chapter 91 of the Hawaii Revised Statutes are implemented...but the problem is...it's not us that has the chapter 91 hearing in the code. It is flawed...and that's why to be honest...it probably never was actually codified...it's just an ordinance freestanding. So because of that I have...and I'm sorry. You know when we got to rule 7...I was a little demoralized maybe. Like I was up how many hours doing this. So on rule 8 and 9, I kind of did it just...I just threw it in there. I didn't do the rule comparison. That'll have to be changed because under financial disclosures there's also a language about we giving a fine. That's gonna have to be inserted in there. I apologize. I just got this and the settlement...oh my God. So we gonna have to return to this. Hopefully at the next meeting and I will do some additional work on it and you guys can look at it too. And again the thought was once the substances is in 15 here. I'll also look at the minutes that we just got. Cause I...make sure everything's in there...but then Board Member Sumner-Mack and Wiseman will look at the form of it and the language and that aspect. Ms. Sumner-Mack: Well I thought...I mean I read carefully and compared with the minutes about our discussion. I thought.you did an excellent job of getting most of that in there. I had very few picayune comments to make. I just want clarification now as to whether you're suggesting that we just table this for the moment and come back to it in January? Is that what you mean? Mr. Goodenow: No. Very good question. So the key question for corp. counsel which I was gonna ask. It was that...so where we're at now...we have these rules...yes...these have to be put on hold. I think we come back in January. I can fix um up some more. You can make...you know we all can put something in for January. But...would a charter amendment be required to allow us to move forward with amending the code and our rules to allow for administrative fines. The charter language is a little here and there but I have asked corp. counsel to look at that and I'm hoping their opinion is going to be...it is not a bar to proceeding...that we can propose code amendments today send them to the counsel. And hopefully when those get passed we'll have finished our review of the rules. And we can proceed. But I did make proposed charter language amendments as well...but I'm hoping they're not really required for the next step. Ms. Sumner-Mack: So we would just have to double check if we can go ahead with this. Double check to make sure we don't violate any of the new language or whatever in the code...in the new code. Mr. Goodenow: If the charter...if there's language in the charter that is too restrictive to what we're doing but I...I think corp. counsel...they informed me they would be able to make a decision on that and I don't know Amy if you have any comments on that. I mean I did have discussion...some discussion about it...but with Mr. Yoshimoto and Ms. Self but I was waiting to hear what they had to say today. Ms. Self: So I'm looking at section 14-5 of the charter. Mr. Goodenow: That's the board of ethics provision. And if you look at the hand out I just gave you just now for the meeting. It's there, I just added some things...this...the civil fines. So that...but you can see what's there originally. I know charter section 14-1 right and the 16 standard...more stringent provisions...I'm sorry section 14- 1...more stringent provisions may be enacted. So my feeling is right the charter is the minimum... Even though it'd be clear to put in they can do civil fines...it's not really required as long as the code is clear. I'm hoping that would give us assurance to move forward with the code proposals that I just passed out. Mr. Wiseman: Alright, is there any authority implementing the fines...civil fines for ethics violations now? Mr. Goodenow: Not in the charter. But it does say in the charter right that... Ms. Self: I'll ask the county council too...to adopt more stringent provisions...that's referring to the county council. Section 14-1. And that's what they did in that ordinance 08-57. It looks like...it still looks like under 14-5 that...that it would go the recommendation from the board of ethics who'd get it at county council. Cause if you look at...you guys would hold the hearings, conduct the investigations...publish opinions with such deletions as may be necessary...involves... Ms. Kahakalau: Proposed revisions right? Ms. Self: Proposed revisions to code of ethics where not inconsistent with this charter. So you are the...you render advisory opinions to county officers, employees with respect to the code of ethics pursuant to written request by officers and employees. Receive and initiate complaints of violations of code of ethics and transmits such complaint to the council or the appropriate appointing authority along with any pertinent advisory opinions thereto. Mr. Goodenow: Right and that's the sticking point is well if it's only an advisory opinion. As opposed to saying well...well we're going to have chapter 91 hearings...we're going to issue a civil fine...and then now it's up to appointing authority to impose it...but they would be the ones to have the chapter 91 hearing. And I'm afraid... But my feeling is we could finesse this a little. Ms. Kahakalau: And so basically...I think we clearly being tasked to propose revisions to the code of ethics...where not inconsistent...where inconsistent right? But where not inconsistent with this charter. If there are issues with the charter then to meet at something we should be able to propose also in general. But the idea that we were really gonna propose revisions to the county council. That was the point right? 17 Mr. Goodenow: Right. Ms. Kahakalau: And then it's up to them. Mr. Goodenow: But the point kind of is that look...if we have to do a charter amendment before they can pass the code amendment. We're going to have to wait for the election next year. I mean not next year right. The following year. The 2020 November election and then the charter would be amended...then we could change the code. My question is do we really have to wait to November to do what we're trying to do in changing the code. The only issue that gives me a little hesitancy is the fact that it calls for...along with any pertinent advisory opinions. Cause you know. Ms. Sumner-Mack: Where's that? Mr. Goodenow: On 14-5 (c). Oh and sorry one other thing, there's a typo on this first page of the first paragraph, the second to the last sentence should be underlined as new material. The board shall adopt its rules of procedure having the force and effect of law as will be necessary to provide for the enforcement of the code of ethics. That is a new sentence. Ms. Sumner-Mack: Is that... Mr. Goodenow: The first paragraph in section 14-5. There this document here. The board shall adopt its rules. That sentence is new. So my thinking is well if the charter say advisory well are we violating the charter but I think the answer is no because. It says the council shall adopt by ordinance a code of ethics shall provide as a minimum standard the provisions of this article. More stringent provisions may be enacted which would include giving a fine and therefore also a formal hearing...chapter 91 hearing process and could transmit that to the appointing authority it's not going to be appointing authorities power to make the ultimate decision. It'll be the board of ethics. I'm hoping corp. counsel would agree with agree with that...otherwise we gotta wait till November of 2020. Ms. Self: I honestly don't see the authority is spelled out in under 14-5. And although you're looking at what section 14-1 is pertaining to the council...that the council shall adopt by ordinance and a minimum the standard provisions in this article in more stringent provisions may be enacted. Mr. Goodenow: i.e. fines. 18 • Ms. Self: So that's the council's authority. Mr. Goodenow: They can do the fines. Right. Ms. Self: Right. But under 14-5 I think you can...this does not give the board itself the authority to impose fines. You have the authority to issue or render advisory opinions which could, in turn, recommend those fines because you have the ordinance it's been passed. So that would have to be...you'd have to amend the code which is much faster than the charter but I don't see the authority for the board itself to impose the fines. Mr. Goodenow: Then what that means is to me...that we're gonna have to...because the process now is that we only give advisory opinions... So you have the informal hearing...you request...and only the respondent not the petitioner request the formal hearing. They don't like that...but it doesn't matter...they can't appeal us chapter 91 cause we don't make the ultimate authority. It's just we send a letter to the department saying employee X appears to have violated the ethics code. We are recommending suspension. Maybe even a fine we recommend. But the department then, do they have authority to issue the fine and two...if they have a Chapter 91 hearing and process...what does that do for the person that made the complaint? They have no right to appeal anything... they have no...I mean. So my suggestion then is if what you say is true and I'm willing to accept that...we have to shut down our whole process...we don't propose code amendments at this time...though I did draft some...and we just have to wait two years till the charter is amended. Ms. Sumner-Mack: I don't get that at all Ken. I read this very carefully and it looked...it was clear to me that we issued an advisory opinion from an informal and then a formal but that the ninety whatever came into effect that was the department. We don't have anything to do with that. Ms. Self: That's correct. Mr. Goodenow: So why do we have 3 sets of hearings? What is our role? We don't have the power to do anything. So and I thought the goal...what the council wanted...the intent of the council...was for the board...not the department...to impose the fine. So we're just gonna have to tell the council...sorry. Ms. Sumner-Mack: Why? 19 Ms. Self: Well that's what you said that's why this probably has not been codified yet because they understand that... Mr. Goodenow: Sorry Ku...even though you want to see the rules done we're gonna have to wait till 2020. Cause the only thing we...we might as well keep our old rules. Ms. Sumner-Mack: No...no. Mr. Goodenow: Our old rules mimic the code that say we only issue advisory opinions. Ms. Self: Mr. Goodenow how would you interpret advisory opinion. Cause this is the theory. Mr. Goodenow: My interpretation is we say that we can give advisory opinions but the council is giving us the authority by ordinance to give formal opinions. Because that's an expansion as allowed under 14-1 the council can do that. We can do that as long as it's clear in the code. It's an addition to this. Mr. Wiseman: My understanding...advisory opinion...would be someone requesting in advance of doing something wrong or some violation. Mr. Goodenow: How would the new rules are drafted? Mr. Wiseman: A concern with a...someone files a complaint...then the board will be issuing a decision on a complaint. It wouldn't be so much an advisory opinion. Mr. Goodenow: I agree. Ms. Kahakalau: Yeah. I agree as well. Mr. Goodenow: But that's why...we can't change that. The code has to be changed. Mr. Wiseman: And then the county has that authority right...the council? Mr. Goodenow: Yes. Well...that's the big question for corp. counsel here. Would the council have the authority to do that...given the language in our charter? I say...I believe it does. If it comes from the code...but if you're gonna read the charter to mean....that we only 20 can give advisory opinions...there's no way we can issue a fine until that is changed. Ms. Sumner-Mack: A fine for what types of infractions so to speak? Infractions of a...missing a deadline for your financial disclosure form. I mean that seems to me a cut and dry thing that could be...we could handle but...but to issue fines for other things...theoretically we're allowed to issue fines for up to a thousand dollars but I don't think...I don't think anyone on this committee feels a qualified to do that or empowered to do that. So why don't we...we've done so much work and I think you've done excellent work of inputting this situation...inputting the suggestions. One of the things that we talked about the last meeting was whether we should make consistent language. For example...is it a complaint or is it a petition...for example. That's not a matter of semantics or grammar...that's a policy issue. And if we decide we should treat all people coming forth as petitioners rather than complaints...then we get rid of this wishy washy uncertainty...ambiguity in the language we're using. So excuse me for going on so long. Mr. Goodenow: No I agree. Ms. Kahakalau: Yes. Mr. Goodenow: I agree. Unfortunately state law requires that in order for any fines...even if it's cut and dry you know missing a disclosure...that there is a chapter 91 process so that someone can appeal the decision. Ms. Sumner-Mack: But we don't have to decide on a...anything about fines at this point...we can just finesse that for now and just go with the changes that we did feel that were important and we can say we can't implement them yet until we're sure that they don't conflict with the charter. Mr. Goodenow: I understand but that means amending the rules twice and Mr. Tucker is going to ask these revisions...you know the thing like complaints and informal advisory...all of those terms come from the code or the charter. So it's very hard to modify the rules. To go very from the process that is here. Now I hear what you're saying...let's just forget the fines. Though that was the whole point of us doing this. Was cause the council wanted us to impose fines that said we had to...we were ordered to implement amendments to our rules to comply with chapter 91...that was the purpose. I agree with you...I...here we could make some modifications but you're still dealing with the structure that to me 21 is flawed. So it's best we either change the charter then change the code. Or in my opinion its's appropriate to just go for it with changing the code. Make suggestions to the charter to make it clear. But if corp. counsel is telling us now that they don't believe the code changes are appropriate given the language and the charter...then we have no choice but to wait. They can do the minor revisions...I'm okay with that...but I... Ms. Sumner-Mack: Couldn't we submit what we...what we've worked out so far? Mr. Goodenow: Oh no it's illegal. Ms. Sumner-Mack: To the corp. counsel...to the corp. counsel for them to review. Mr. Goodenow: The rules? Ms. Sumner-Mack: To review the...what you've put together. Ms. Self: Excuse me. At this point...because I'm not your regular corp. counsel...I think you should get a formal opinion from your... Mr. Goodenow: Alright. We'd like to request one. Thank you. Ms. Self: Yes...okay. Mr. Goodenow: Thank you. Mr. Kahakalau: Do we need to have a formal motion for that or is...its fine? Ms. Self: It's up to you guys. Mr. Goodenow: I guess so. I move that we get a formal opinion from corp. counsel regarding whether current charter language prohibits code revisions to allow the board of ethics to impose civil fines. Mr. Wiseman: I would second that. Ms. Kahakalau: Any further discussion in regards to that motion? Mr. Wiseman: Yeah...and I would just like to say that what conveys the issue...any good attorney could create a Pandora's box out of this if they were defending against a fine. And a simple question is...your honor...what authority do you have for this fine? And then it goes down the line in...if it's not clear cut and solid...it's not good...so I'm in favor. 22 Ms. Sumner-Mack: I just hate to see...a lot of the suggestions that were proposed for these rules changes were to be done for the benefit of the public for...to provide better service to those who come before us. And I hate to see it just dropped for two years to wait for authority. The council asked us to do these revisions so I think...I agree we should postpone until J is here. But I don't think we should just wash our hands of the whole thing and say we're gonna have to wait. Thank you. Ms. Kahakalau: And I don't think this particular motion indicates that...it's just saying let's get clarity from corp. counsel in regards to our status and our authority and so if there is no further discussion. Mr. Goodenow: One last thing. Despite what we all talked about was whether the code right could be done without the charter. But there's nothing that prohibits us now because the timeline for the charter commission is...there's not enough time to meet their agenda for their next meeting. So it will have to be on their January meeting which is really their deadline...their internal deadline to have all of the proposals in. So I would like...I move... Ms. Kahakalau: No, no we are not moving right now. Mr. Goodenow: No, no. Ms. Kahakalau: We're still discussing. We have a motion on the floor. Mr. Goodenow: Oh, oh. I'm the vote...sorry. Ms. Kahakalau: So if there's no further discussion in regards to the motion to get the clarification from the A.G...I'll call for the question...all in favor say aye. Alright...that motion is carried. Thank you very much. That way it's official and part of the record and we do understand you know that you are here today and that... Ms. Self: I just rather that you get a formal opinion...cause then you know that it's safe to move forward. Ms. Kahakalau: Exactly. Alright. Now Mr. Goodenow would you like to make a motion? Mr. Goodenow: Yes. I move that...this is only in regards to the charter...the code amendments we are putting on hold till the next meeting right? So it'd only be that the board votes to request the charter commission to consider the following changes to the board of ethics...I mean the code of ethics in the charter...specifically...and I'll just make a 23 quick. Oh well I'm making a motion, sorry. In specific...section 14-5...right you'll see the underline....it adds a sentence...the board shall adopt its rules of procedure. That's the one I left out the underline, right. And then subsection (d) right consider and if appropriate impose civil fines established by ordinance against an elected and appointed officials and employees...you know what I'm sorry...I think we have to cross out and employees. We'll leave it in okay. Then finally...just adding formal when it says pertinent advisory and then add or formal opinions. Ms. Kahakalau: That's in (f)? Mr. Goodenow: Yeah (f) and (c). Sorry. Mr. Wiseman: What's with the...if I may? What's the distinction of a male perspective of an advisory opinion in a.formal opinion? Unless a formal opinion relates to a decision we make on a complaint? Mr. Goodenow: Yes. Mr. Wiseman: Okay so that's... Mr. Goodenow: That's really what it is. Mr. Wiseman: I see...okay. Mr. Goodenow: We could call it something else. Ms. Self: Mr. Goodenow, aren't the advisory opinions when employees come and ask for an opinion? Mr. Goodenow: Yes. That's what it should be only. But the code is so muddled and the current rules are so muddled...everything's called an advisory opinion. So that's something we want to clarify. Ms. Kahakalau: And Judge Wiseman just articulated that earlier. Mr. Wiseman: Yeah. I mean a formal opinion is really...to me that's when we hear a complaint and make a decision...ruling on it. A formal ruling maybe. Advisory opinion is...cause I've sought advisory opinions when I first took the bench I think I told you this story. I was awarded two round trip tickets at a little event the week after I • took the bench and from my wife's company and so on. Anyway, I sought advisory opinion and I couldn't accept them. You know so I turned in that...but that was in advance and that's where advisory opinions usually come in. In advance of 24 something...that's going...anticipating something that's going to happen. Mr. Goodenow: To be honest...I tried to make this as minimal as possible right. And so I used what language they had but the other issue regarding advisory or formal opinions is under the informal hearing...the informal advisory opinion is also sent to the department. Then if they request a formal then the formal is sent. And then penalties...the section here that I passed out...those are the two sections. Ms. Kahakalau: Yeah. Mr. Goodenow: I move that we adopt those changes. Ms. Kahakalau: Okay so we have received from... Mr. Goodenow: A second? Ms. Kahakalau: Do we have a second first? Ms. Sumner-Mack: Second. Ms. Kahakalau: Okay. Discussion so we are speaking about our proposed charter amendment for 12/12/18 board of ethics meeting that we all got. It's a handout by Mr. Goodenow. Refer to section 14-5 of the board of ethics. So it's just that first page with the revisions that he stated. Just to be clear. Mr. Goodenow: Thank you. Yes. Ms. Sumner-Mack: Only the first page? Mr. Goodenow: No...cause the rest are code. Ms. Kahakalau: Code amendments. Mr. Goodenow: So we gotta wait to hear from Amy Self...I mean J Yoshimoto regarding their opinion about... Ms. Kahakalau: So we just looking at the proposed charter amendments on 14.5 and 14.6. The first one board of ethics and the second one penalties and.... Mr. Goodenow: Again I'm sorry that there's one line that I failed to underline but I did bring up during the meeting right. The second to last sentence 25 • in the first paragraph. The board shall adopt its rules of procedures, having the force and effect of law, as will be necessary to provide for the enforcement of the code of ethics. That's added material that would be added. Ms. Kahakalau: So that should be underlined. Mr. Goodenow: Thank you, sorry about that. Ms. Kahakalau: Okay do we have any further discussion in regards to this motion? Ms. Self: Excuse me for the motion, are you going to include the whole thing, is there other sections? Mr. Goodenow: Just the charter amendment. The first page and not... Ms. Kahakalau: Minus. Mr. Goodenow: Just section 14-5 and 14-6. Ms. Self: Oh I see what you mean. Mr. Goodenow: The code stuff will have to wait till next time. Ms. Self: I thought this was all charter... Ms. Kahakalau: So we're just talking about the first page...of the proposed charter amendments. And we have an amendment in the first paragraph, we have an amendment in (d) also in (f) and then in the section 14- 6 penalties. Mr. Goodenow: And (c) has a small... Ms. Kahakalau: Or formal...I'm sorry yeah...(c) also. So several additions and then a change in the penalties. Do we have any further discussions in regards to this? Mr. Goodenow: The only thing that I'd bring up is I put and employees in (d). I don't...you know an officer is you know we don't have the same collective bargaining rights and I...we could just leave it in. But it may be that somewhere else they're gonna say well you can't do employees. It's clear you can do elected and appointed officers. Mr. Wiseman: Yeah...let's just leave it in and it'll take its course. Mr. Goodenow: Yeah...they'll think about it. Okay great idea thank you. 26 Ms. Kahakalau: And they can have their...and figure it out. Alright is there any further discussion? If not I call for the question. All in favor say aye. Any opposed? Okay so that motion is carried. Thank you very much Mr. Goodenow for your work. I do also really appreciate it...cause I know it takes a lot and especially when it is so incongruent you know it makes it just so much harder to look at multiple documents and try to make sense of things that weren't developed side by side obviously. Thank you so much. Ms. Sumner-Mack: Could I ask for a recess? Ms. Kahakalau: Yes...we will have a short recess before we go into executive session and we'll come back after recess and then have a motion for executive session. Thank you very much everybody. Motion and Vote: Mr. Goodenow moved to get a formal opinion from Corporation Counsel regarding whether current charter language prohibits code revisions to allow the Board of Ethics to impose civil fines. Mr. Wiseman seconded. All present members voted aye. Mr. Goodenow moved to adopt changes on the first page of the Proposed Charter Amendments for 12/12/18 Board of Ethics Meeting handout. Ms. Sumner-Mack seconded. All present members voted aye. 11:05 a.m. The Board took a short recess. 11:19 a.m. The Board returned from short recess. Ms. Kahakalau: We shall proceed. We are finished...we had moved some items up and so we're back on number 6. executive session and can I have a motion to go into executive session. Mr. Wiseman: So moved. Mr. Goodenow: Second. Ms. Kahakalau: So we have a motion and we have a second. Thank you. All in favor say aye. Motion and Vote: Mr. Wiseman moved to go into executive session. Ms. Goodenow seconded. All present members voted aye. 27 11:19 a.m. The Board moved into executive session. 11:30 a.m. The Board returned from executive session. 6. VOTING ON EXECUTIVE SESSION MATTERS (11:30 a.m.) a. Review of the executive session minutes of November 13, 2018. Ms. Kahakalau: We are back from our executive session of the board of ethics, December 12`h and we'd like to have a motion in regards to the minutes please. Mr. Goodenow: I move that we approve the executive session minutes for November 13, 2018. Ms. Sumner-Mack: I'll second that. Ms. Kahakalau: Any further discussion in regards to the minutes? All in favor say aye. So those minutes have been approved... Motion and Vote: Mr. Goodenow moved to approve executive session minutes. Ms. Sumner-Mack seconded the motion. All present members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Ms. Kahakalau: And then for information we have also reviewed seven confidential financial disclosure forms and all of them have been reviewed and filed. 10. ADJOURNMENT (11:32 a.m.) Ms. Kahakalau: So we are finished already with 7. we move that forward. We have also discussed 8. and so our announcement is that our monthly meeting of the board of ethics is scheduled for January 7`h at 10 o'clock right here and then the other announcement I just want to make is that I will proactively through Maria remind the Mayor that we have an opening coming up as soon as possible and to move forward since we know for sure there's at least one resume already in the pipeline. But I do encourage the members, if you do know anybody else that would love to serve on this fabulous board, to please ask them to submit their resume to the Mayor so that just 28 in case you know we have people that are willing to serve in case there should be an unexpected opening for any reason. Ms. Self: Point of contact for that would be Rose Bautista in the Mayor's office. She's the one that works on getting vacancies filled for boards and commissions. Ms. Kahakalau: Thank you. Great. And I'll get the email from somebody there. Thank you and other than that I wish everybody a fabulous holiday season and I'd like to adjourn this board at 11:32 am. Respectfully submitted: r j1/4 r a 1 4t £agal , cretary% 29