MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:      January 8, 2009

                             Standard Financial Plaza

                             Conference Room, Suite 211

Present:                 Lex Smith, Esq., Chair

                             Susan S. Heitzman, Vice Chair

                             Matthew H. Kobayashi

                       Patricia Y. Lee, Esq.

                       Geri Marullo

                             Charles W. Totto, Executive Director and Legal Counsel (EDLC)

Stenographer:        Norm Fisher

Excused:               Wayne T. Hikida

I.       CALL TO ORDER

         The 419^th meeting of the Ethics Commission (Commission or EC) was called to order at 11:45 a.m. by the Chair.

II.             APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE NOVEMBER 13, 2008 MEETING

          The minutes of the open meeting of November 13, 2008 were unanimously approved.

III.     OLD BUSINESS

A.      Confirming the dates and times for the February and March 2009 meetings

         The EC scheduled the dates and times for the February, 2009 meeting for February 17, 2009 at 11:30 a.m., and the March, 2009 meeting for March 17, 2009 at 11:30 a.m., and scheduled the date and time for the April, 2009 meeting for April 16, 2009 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211. 

IV.     NEW BUSINESS

         The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated January 5, 2009 regarding the following agenda items:

         A.      Administrative news

        The EDLC outlined the number of cases pending and the ethics training conducted to date in fiscal year 2008. 

        The EDLC stated that the COGEL Conference he attended in December was one of the better Conferences.  The EDLC also stated that for Fiscal Year 2009, the travel funds have been eliminated.

B.      Report and recommendation regarding bill to authorize the Commission to impose civil fines on certain city officers and employees

          The EDLC reported that the Commission previously approved submitting a bill through Council to implement the imposition of civil fines on those officers and appointees who are exempt from civil service.  The EDLC stated that now that the EC will once more have power to impose fines on elected and appointed officials, the law needs to be brought up to date.

          The EDLC stated that staff recommends that the Commission ask the Council to go back to the pre-2007 law.  The old law required the Commission to impose fines of $100 for the first violation, and $200 for the second.  The set fines would then be imposed on anyone required to file whose financial disclosure is late or incomplete. As such, the EDLC has submitted proposed changes to ROH Sec. 3-8.4(f) for the EC review and approval, which sets forth the penalties for failure to file timely or complete financial disclosure statements with the Commission, based on the pre-2007 law.

          Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept the draft proposed legislation, and that the draft be sent to Corporation Counsel for further review.

          C.      Proposed Fiscal Year 2009 through Fiscal Year 2011 Operating Plan

          The EDLC presented the Commission with a proposed Operating Plan for the FY09 through FY11 period, and the FY06 – FY08 Operating Plan, which includes brief statements as to status of the major goals under that plan.

          The EDLC stated that the draft FY09 – FY11 Operating Plan provides an outline of priorities for the Commission and its staff to follow and to measure accomplishments.  The Operating Plan includes projects and issues from all facets of the Commission’s work. It is unlikely that all the projects may be completed because of new issues, changing priorities and limited resources.

          D.      Introduction of a bill at the Legislature to make the civil fine process fair and efficient         

          The EDLC reported that currently, Sec. 46-1.5(24)(A), Hawaii Revised Statutes (HRS), requires that a county ethics agency must inform the ethics violator to cease and/or correct the misconduct.  Only if the conduct continues after this notice may the board fine the violator. Also, HRS Sec. 46-1.5(24)(F) requires that the counties must set up an appeals agency before a fine may be imposed on an ethics law violator. 

          The EDLC stated that staff has been working with the Senate Judiciary Committee to submit a bill to remove ethics agencies from the state mandate.  The bill will be identical to that submitted last year that did not pass because of HGEA opposition.  The EDLC stated that because civil fines do not apply to civil service employees, staff does not anticipate public employee union opposition. 

V.      EXECUTIVE SESSION SUMMARY

               A.      Approval of the minutes of the executive session of the November 13, 2008 meeting

         The minutes of the executive meeting of November 13, 2008 were unanimously approved.

       The EDLC referred to his confidential memorandum to the EC members dated January 5, 2008.  

          B.      Report and recommendation regarding probable cause to find violations of RCH Sec. 11-104 (misuse of city resources for political campaign activities) by various city officers and employees, EC No. 08-137(w)

          The EDLC reported that, when Councilmember Ann Kobayashi entered the 2008 mayoral race, it left her Council position open.  Former councilmember Duke Bainum and State Representative Kirk Caldwell filed their respective nomination papers for the vacant Council seat on the last day to do so.  Also, Mr. Caldwell’s running for Council left a vacancy in State House District 24, for which Chrystn Eades filed nomination papers.

          The EDLC stated that the Commission received a complaint that certain city officers or employees used city time or other resources to support the political campaign of Mr. Caldwell and/or Ms. Eades, each of whom needed the requisite number of residents from the relevant districts to sign their nominating petitions.

          The EDLC stated that staff interviewed all the city personnel who signed either petition or were otherwise involved in the process of finding those eligible to sign.  Each city officer or employee who should have taken vacation time in order to conduct political activity did so.  In addition, they were careful to avoid using city telephones, equipment and other resources in their political activity.  The city personnel did so because they knew that by signing or helping other sign the nominating petitions they were conducting political business and did not want to violate the ethics law.  None of the officers or employees involved felt required or coerced to sign the petition and all felt that they could have declined without any negative repercussions.  Overall, the investigation showed that city administration officials at all levels understood the prohibition against the use of city resources for political purposes and were very careful to avoid such misuse of government resources.

          The EDLC reported, however, that staff believes that there is sufficient information to find probable cause that city resources were misused in one minor instance.  Three city officers or employees had a brief discussion in private city offices in support for one of the candidates.  As a result, staff recommends that the Commission transmit a Notice of Possible Violation of the Standards of Conduct (Notice) to each of the city officers or employees, along with a draft advisory opinion.

          Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff’s recommendation to issue the Notices and to include a draft advisory opinion that would describe generally the issues that arose and to restate and clarify the proper steps taken or that should be taken to avoid supporting political activities with city resources.

C.      Report and recommendation regarding probable cause to find violations of RCH Section 11-104
(misuse of city resources for political campaign purposes) by certain city officers; EC No. 08-153(w)

          The EDLC reported that, when Councilmember Ann Kobayashi entered the 2008 mayoral race, it left her Council position open.  Former councilmember Duke Bainum and State Representative Kirk Caldwell filed their respective nomination papers for the vacant Council seat on the last day to do so. 

          The EDLC stated that the Commission received a complaint that certain city officers or employees used city time or other resources to support the political campaign of Ms. Kobayashi and/or Dr. Bainum, each of whom needed the requisite number of residents from the relevant districts to sign their nominating petitions.

          The EDLC stated that staff interviewed all the city personnel who signed either petition or were otherwise involved in the process of finding those eligible to sign.  Each city officer or employee who should have taken vacation time in order to conduct political activity did so.  In addition, they were careful to avoid using city telephones, equipment and other resources in their political activity.  The city personnel did so because they knew that by signing or helping other sign the nominating petitions they were conducting political business and did not want to violate the ethics law.  None of the officers or employees involved felt required or coerced to sign the petition and all felt that they could have declined without any negative repercussions.  Overall, the investigation showed that City Council officials at all levels understood the prohibition against the use of city resources for political purposes and were very careful to avoid such misuse of government resources.

          The EDLC reported, however, that staff believes that there is sufficient information to find probable cause that city resources were misused in one minor instance.  Four city officers or employees stopped into private city offices to sign the petition for one of the candidates.  As a result, staff recommends that the Commission transmit a Notice of Possible Violation of the Standards of Conduct (Notice) to each of the city officers or employees, along with a draft advisory opinion.

          Upon discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff’s recommendation to issue the Notices and to include a draft advisory opinion that would describe generally the issues that arose and to restate and clarify the proper steps taken or that should be taken to avoid supporting political activities with city resources.

D.      Setting a hearing for a city employee for violations of RCH Section 11-104 and RCH Section 11-102(d), EC No. 07-005(w)

          This matter was reported by the Commission’s outside counsel, Matt Viola.

          Mr. Viola reported that the issue in this case is whether a city employee, who was subpoenaed to testify at a trial in which the city was a defendant, is required to return the $44.00 witness fee that accompanied the subpoena if she was not required to testify.  The city employee has taken the position that she is not required to return the witness fee.

Mr. Viola stated that several months ago, the Commission found that there is probable cause to believe that the city employee, violated RCH §§ 11-104 and 11-102(d).  Therefore, it authorized the issuance of a Notice of Possible Violation of the Standards of Conduct (NOPV), informing the city employee of the allegations and potential violations.  The city employee was served with the NOPV and has requested a hearing before the Commission. 

Mr. Viola stated that under the Commission’s Rules of Procedure (Rule 6.1.a.(2)), the Commission can hold a formal hearing when it determines that charges should be brought for a violation.  Thus, in order to initiate the formal hearing that the city employee has requested, it is necessary for the Commission to issue a Charge to him/her, setting forth the basic allegations and bases of the potential violations.  Also, the Commission can choose to designate its legal counsel as the complainant or co-complainant.  

          Upon discussing the matter, the Commission moved, seconded, and unanimously carried to:  (1) designate the EDLC as the complainant, and (2) instruct the EDLC to sign and serve the city employee with the Charge and with a Notice of Hearing which notifies the city employee of the date and time the Commission has set the hearing for.

VI.     ADJOURNMENT
          The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 1:46 p.m.