MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:            February 22, 2005

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

Present:                        Robin D. Liu, Chair

                                    Lex R. Smith, Vice Chair

                                    Susan S. Heitzman

                                    Raymond H. Fujii

                                    Matthew H. Kobayashi

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

                                    Matthew J. Viola, Outside Counsel

Stenographer:               Norm Fisher 

I.          CALL TO ORDER

             The 382^nd  meeting of the Ethics Commission (Commission or EC) was called to order at 11:36 a.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE JANUARY 31, 2005 OPEN MEETING

            The minutes of the open meeting of January 31, 2005, were unanimously approved.

III.       OLD BUSINESS

A.        Confirming the date and time of the March 22, 2005 meeting and setting the date and time for the April 2005 meeting

            The EC confirmed the March 22, 2005 at 11:30 a.m. meeting and set the date and time for the April 19, 2005 at 11:30 a.m. meeting, in the Standard Financial Plaza Conference Room, Suite 211.

IV.       NEW BUSINESS

A.        Administrative news

            The EC reported that Lawrence Tseu, DDS, has been nominated to be a member of the Ethics Commission.

            The EC reported that he will be conducting mandatory training for cabinet and appointed staff in mid-March 2005.

B.                 Report and recommendations on Charter amendments to propose to the Charter Commission

The EDLC presented a description and recommendation of the four matters the EC reviewed at the December 2004 meeting that may be submitted to the Charter Commission.  

1.        Whether the EC should have the power to impose civil fines on those who violate the ethics laws.

            The EDLC reported that, if the authority to fine is to be a useful regulatory tool, it needs to be a part of an effective process.  The approval by voters of an amendment to the Charter and a change in state law are needed.  State law will have to be modified to remove the requirement that a fine may only be imposed for ethics violations that occur after notice of the original violation.  In addition, there is no reason to create another city agency to hear the appeals from the EC when a fine is imposed.  Appeals should go to court.  Finally, additional funding ($30,000 to $60,000 annually) to support EC resources to handle fine cases will be needed.

            The EDLC stated if the Commission is willing to commit the resources, in the long run, it will make for a more complete menu of regulatory alternatives and, in turn, a more effective Commission.  Therefore, staff recommends pursuing the issue with the Charter Commission.

2.        Whether the city impeachment laws affecting elected officials should be amended.

The EDLC reported that if an elected official violates an ethics law, he or she is subject to impeachment.  However, staff's research shows that the impeachment process stated in RCH Sections 12-201 through 12-203 are invalid because they require the Hawaii Supreme Court to hear the impeachment case and only the state legislature, not a county, may set the jurisdiction of the courts.  The EDLC stated that the Corporation Counsel agrees with the staff's analysis that the impeachments laws are invalid and will be submitting an opinion to that effect.

The EDLC reported that staff recommends that the EC inform the Charter Commission that the current impeachment process is flawed, request it to determine if a change to the Charter should be sought and, if so, to recommend to the voters language for an amendment.  If the Charter Commission does not act, the EC may then evaluate other options.

3.         Clarification that the Corporation Counsel does not have the authority to withhold or transfer money from the EC's budget or control personnel actions.

The EDLC reported that staff is conducting further research regarding a provision that would set a minimum floor for the Commission's funding.

4.        Whether members of the Charter Commission and the Reapportionment Commission should be considered officers for purposes of the ethics laws only.           

              The EDLC reported that members of these two commissions become involved in
significant policy issues for which the public would reasonably expect that the fair and equal treatment policy and the limits on conflicts of interest should apply.  However, this is not the case under the current Charter.  Under current law, the members of the Charter and Reapportionment Commissions are not deemed officers of the city.  Because the ethics laws apply only to city "officers" and "employees," the ethics laws do not apply to members of the Reapportionment or Charter Commissions.

              The EDLC stated that the Commission approved having the members of the Charter and Reapportionment Commissions subject to the standards of conduct when this matter was before the EC on October 28, 2003.

            The EDLC reported that the staff recommends that the EC propose a simple and effective change to the current language of RCH Secs. 3-103.2 (reapportionment) and 15-105 (Charter review) to add language so that the members would be deemed officers for purposes of the ethics laws only.  

            The EC moved, seconded, and unanimously carried to adopt staff recommendations to the Charter Commission.

            The EC moved, seconded, and unanimously carried to go to the executive session.

V.         EXECUTIVE SESSION SUMMARY

A.       Approval of the minutes of the executive session of the January 31, 2005
                       meeting

The minutes of the executive session of January 31, 2005 were unanimously approved.

            The EC moved, seconded, and unanimously carried to return to the open session.

VI.       ADJOURNMENT

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