MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:            June 12, 2008

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

Present:                        Lex Smith, Chair

                                    Susan S. Heitzman, Vice Chair

                                    Matthew H. Kobayashi

                                    Wayne T. Hikida

                                    Patricia Y. Lee

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

                                    Matthew J. Viola (Outside Counsel)

Stenographer:               Norm Fisher

Excused:                       Cynthia M. Bond

I.          CALL TO ORDER

            The 414^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 APRIL 15, 2008 MEETING

            The minutes of the open meeting of April 15, 2008 were unanimously approved.

III.       OLD BUSINESS

           A.        Setting the dates and times for the July and August 2008 meetings

           The EC scheduled the date and time for the July, 2008 meeting for July 8, 2008 at 11:30 a.m. and scheduled the date and time for the August, 2008 meeting for August 14, 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 May 9, 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.  

            The EDLC stated that Ms. Geri Marullo was confirmed as a Commissioner.

            The EDLC provided the EC with an updated 3 year operating plan for its review.

B.         Report on a resolution to conform the city Charter to Act 107 conferring jurisdiction on the circuit courts to try impeachment cases of county officers

 HB 660 has been passed by Legislature and signed into law as Act 107.  There were no objections or opposition at the legislature.

            C.        2008 COGEL Conference

            The EDLC reported that COGEL's 30^th Annual Conference will be held in Chicago, Illinois, December 7^th through 10^th at the Westin Chicago River North.  The EDLC stated that the budget will allow approximately three individuals (two Commissioners and himself) to attend the conference.

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the April 15, 2008 meeting

            The minutes of the executive meeting of April 15, 2008 were unanimously approved.

            The EDLC referred to his confidential memorandum to the EC members dated May 9, 2008. 
 

B.         Report regarding dismissal of a complaint against a city officer, EC No. 07-093(w)

The EDLC reported that there was a recent article in the Honolulu Advertiser entitled "Complaint against Djou Dismissed – Ethics panel determines councilman didn't violate Charter rules."

The EDLC stated that the article misstates that the Commission found no violation.  The complaint was closed, subject to receipt of additional information, because the complainant failed to respond to repeated requests for information needed to pursue the case.  The EDLC stated that staff informed the complainant in writing that we would close the case if he did not respond.   When the deadline expired without a response, the EDLC informed Councilmember Djou in writing of the staff action.

C.        Report regarding a complaint against a Commission staff member

            The EDLC reported that in developing the 1-hour retraining program that began last fall, staff blended several cases from the Ethics Commission's files to use as case studies for group discussion.  One of these case studies focused on a supervisor hiring a subordinate to work at the supervisor's private business on off-duty time. This case study exemplifies the issues that arise whenever a supervisor and a subordinate have a significant private financial or business activity.  

            In the retraining classes, the EDLC described how this type of financial interest may create concerns among staff about favored treatment to the subordinate who works in the supervisor's private business and concerns about misuse of city resources for a private benefit. 

            Without revealing the name of the individuals, division or department in retraining, the EDLC also noted in retraining that this particular case resulted in a claim of retaliation against an employee for filing an ethics complaint, ultimately resulting in a six-figure settlement by the city.  This point underscored how an ethics issue that could have been easily avoided may result in a much more serious problem.

            The EDLC stated that complainant claims that the staff member implied that the defendants in the lawsuit were "guilty."  The staff member stated that, although he does not agree with the complainant's comments about the presentation, he apologized to her and removed the examples that raised the controversy from the retraining packet.

            However, although the complainant acknowledged that changing the case study was a step in the right direction, she also requested that something be done to remedy what she termed "false information" conveyed in prior training sessions.  The staff member does not believe that any "false information" was conveyed and no further remedy is needed.

            After discussing the matter, the EC instructed the EDLC to check with the Corporation Counsel to see what her position is.  Once the EC receives the position of the Corporation Counsel, staff will draft a letter to the complainant outlining the position of the EC.

D.       Report and recommendation regarding possible violation of RCH Sec. 11-104 (misuse of city position) by a city employee, EC No. 07-163(w)

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

            Mr. Viola stated that the Ethics Commission received a written request for advice from a city department involving the conduct of one of its employees.      Mr. Viola stated that the gist of the request was an incident that occurred in which the city employee's son was arrested by HPD.  In connection with this incident, two of the HPD officers at the scene wrote in their reports that the city employee, who came to the scene with her husband, used her position with the city department to demand that the officers conduct their investigation in a certain way and that she threatened legal action against the officers involved.   In addition, she allegedly said that she knew people "higher up" that she would call.   One of the HPD officers involved submitted an Intimidating a Witness report against the city employee, which matter was being reviewed by the Attorney General's office.

            Mr. Viola stated that upon making a thorough investigation in this matter, staff does not believe there is probable cause to believe that the city employee violated the fair and equal treatment policy with respect to her interactions with police officers.

            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 draft a letter to the complainant for the Commissioner's review at the next meeting, explaining the reasons for the Commission's finding, as well as a statement advising the employees of the city department to be cautious when using their city position or title. 

E.                  Request for salary increase for the Executive Director/Legal Counsel.

The EC moved, seconded, and unanimously carried to increase the annual salary of the EDLC to $95,774.00.  The EC instructed staff to draft a letter for Chair Smith signature to Corporation Counsel outlining the EDLC's salary increase.

VI.       ADJOURNMENT

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:25 p.m.