MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:            February 22, 2008

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

Present:                        Lex Smith, Chair

                                    Susan S. Heitzman, Vice Chair

                                    Matthew H. Kobayashi

                                    Wayne T. Hikida

                                    Cynthia M. Bond

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

                                    Matthew J. Viola (Outside Counsel)

Stenographer:   Norm Fisher

I.          CALL TO ORDER

             The 412^th meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 p.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE JANUARY 8, 2008 MEETING

            The minutes of the open meeting of January 8, 2008 were unanimously approved.

III.       OLD BUSINESS

           A.        Confirming the date and time for the March 13, 2008 meeting and setting the date and time of the

                       April 15, 2008 meeting

           The EC rescheduled the date and time for the March 13, 2008 meeting to March 18, 2008 at 11:30 a.m. and set the date and time for the April, 2008 meeting for April 15, 2008 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 February 20, 2008 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.
 

B.         Report on Council Resolution 07-391, calling for a Charter amendment to prohibit certain types of conflicts of interests

The EDLC reported that he and Corporation Counsel are in the process of redrafting this resolution in order to make the prohibition cover only preemployment conflicts that might tend to impair the judgment of the officer in discharging his/her city duties, rather than the current blanket prohibition from being involved in any matter regarding a prior employer.

C.        Report and recommendation on Council Resolution 07-384, calling for a Charter amendment to authorize the Ethics Commission to impose civil fines on all city officers and employees who violate the ethics laws

            The EDLC reported that this resolution was moved to second reading before the Council.  The EDLC stated that HGEA opposes the bill, and that the City Council may oppose the resolution if it effects the collective bargaining process.  The EDLC stated that, on behalf of the Commission, he testified in favor of this resolution.

D.        Report on the nomination of Patricia Y. Lee, Esq., to the Ethics Commission

            The Commission reviewed the personal and professional information provided by Ms. Lee.

E.                  Report on HB 660 and SB 960, conferring jurisdiction on the circuit courts to try impeachment cases of county officers

            The EDLC reported that the Commission submitted these bills to the Legislature last year, their purpose being to create legally valid jurisdiction in the circuit courts for impeachment of county officers.  The EDLC stated that the counties have tried to confer jurisdiction on the courts.  However, only the Legislature, not the counties, may define the jurisdiction of the courts.  There was no opposition to these bills, and there is a good chance one of the bills will pass.  The EDLC stated that, on behalf of the Commission, he testified in favor of these bills.

F.         Report on HB 3012 and SB 2937, removing the "cease and correct" requirement from HRS Sec. 46-1.5(24)(A) and (F) for civil fines imposed by county ethics commissions and providing for appeal of a civil fines to the circuit court

            The EDLC reported that, as was previously discussed by the Commission regarding its ability to impose civil fines, there is a loophole in state law that would actually prevent a county ethics commission from imposing a civil fine unless the fine was for misconduct that occurred after the violator had been notified to cease or correct the misconduct.

            The EDLC stated that these bills would correct this.  However, they are opposed by HGEA and are stalled in the Senate, but he hopes to have them heard in the House of Representatives.  The EDLC stated that, on behalf of the Commission, he testified in favor of these bills.

G.       HPD request to have its mandatory ethics retraining conducted by HPD staff or contractors

            The Commission deferred this matter to the next meeting.

H.                 Consideration of the Ethics Resource Center's "National Government Ethics Survey"

            The EDLC directed the Commission's attention to a proposed Ethics Survey to be given during his ethics training and retraining of the city's supervisor and managers.  The EDLC stated that this survey is based on the National Government Ethics Survey, which he believes is the first in depth survey of government ethics.  

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the January 8, 2008 meeting

            The minutes of the executive meeting of January 8, 2008 were unanimously approved.

B.         Report and recommendation regarding possible violation of RCH Sec. 11-104 (misuse of city time and vehicle) by a city employee, EC No. 06-146(w)

            The EDLC referred to his confidential memorandum to the EC members dated February 20, 2008.

            The EDLC directed the Commission's attention to a draft advisory opinion based on the report submitted at the last meeting and the comments of the commissioners.

Upon reviewing the advisory opinion, the Commission moved, seconded, and unanimously carried to accept the report and advisory opinion as drafted.

C.     Report and recommendation regarding possible violation of RCH  Section 11-104 (misuse of city time for private purposes) by a city officer, EC No. 06-118(w)

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

            Mr. Viola stated that upon making a thorough investigation in this matter, staff notified the complainant that they did not believe there was sufficient evidence to find probable cause that the city officer had violated an ethics law.  The complainant then requested that the Commission independently review the matter and decide whether probable cause exists.

            After reviewing all case documents outlining staff's investigation of this matter, and discussing the issues, the Commission moved, seconded, and unanimously carried to accept staff's recommendation that there was insufficient evidence to find that probable cause exists, and instructed staff to issue a letter to the complainant explaining the reasons for the Commission's finding. 

VI.       ADJOURNMENT

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:15 p.m.