MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:            November 6, 2007

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

Present:                        Lex Smith, Chair

                                    Susan S. Heitzman, Vice Chair

                                    Wayne T. Hikida

                                    Cynthia M. Bond

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

                                    Matthew J. Viola (Outside Counsel)

Stenographer:               Norm Fisher

Excused:                       Matthew K. Kobayashi

I.          CALL TO ORDER

             The 410^th meeting of the Ethics Commission (Commission or EC) was called to order at 11:35 p.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE

OCTOBER 8, 2007 MEETING

            The minutes of the open meeting of October 8, 2007 were unanimously approved.

III.       OLD BUSINESS

A.        Confirming the date and time for the December 6, 2007 meeting and setting the date and time for the January 8, 2007 meeting

             The EC confirmed the date for the December 6, 2007 meeting at 11:30 a.m. and set the date and time for the January, 2007 meeting for January 8, 2007 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 November 2, 2007 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.         COGEL Conference

            The EDLC reported that there were several topics that were covered at the COGEL Conference that he believed to be noteworthy.  The highlights of these topics were:

            1.         How Much Do We Know about Public Employees?  The EDLC stated that this topic focused on the amount of information that is available to the public regarding misconduct by government employees.  In Hawaii, we have to be mindful of collective bargaining agreements’ restrictions on disclosure of the specific discipline taken by an agency.  Essentially, misconduct resulting in suspension or termination may be disclosed once the grievance process has been concluded.

            2.         Developing and Maintaining Public Education Programs.  The EDLC stated that on this topic the speakers noted some programs, such as on-line training for non-supervisory personnel, “interested persons” meetings for policy discussions and brown bag lunches with EC staff and members.  The EDLC stated that one speaker revealed frightening statistics about adult education – 50% of the time people in training are not listening, retention is only 42% immediately after the training and declines to 17% after 7 days. The speaker suggested trying to assess the needs of government personnel who are being trained.

            3.         Leadership Development – Coaching.  The EDLC stated that this topic emphasized the need to listen emotionally and attentively.

            4.         Bridging the Ethics Gap: From Codes to Compliance.  The EDLC stated that there has been a schism between those advocating aspirational ethics training and those who believe that teaching the rules is more beneficial. This meeting reflected that almost everyone who conducts training has to combine both the public service principles behind the ethics laws and the basic legal requirements of those laws.

            5.         The Challenges and Benefits of Joint Federal/State/Local Efforts.  The EDLC stated that this topic emphasized keeping an open relationship and contact with state and federal agencies so that you’ll be able to handle cross-jurisdictional cases.  One speaker, an attorney who has been a prosecutor and defense counsel, noted that team work among agencies is what most worries the defense. He also offered several pointers about how to set up a joint force that shares resources and information.

C.        Report on Bill 60 (2007) regarding civil fines

            The EDLC reported that the Bill was signed by the Mayor.  The EDLC stated that there still remains the issue of the method of selecting an appeals board.

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the October 8, 2007 meeting

The minutes of the executive meeting of October 8, 2007 were unanimously approved.

B.         Report and recommendation regarding request for advice from three city officers as to conflicts of interest, EC No. 07-070(w)

The EDLC referred to his confidential memorandum to the EC members dated November 2, 2007.

          This matter was reported by the Commission’s outside attorney, Matthew Viola.

            Mr. Viola reported that Corporation Counsel submitted requests for advice on behalf of three city officers.  The issue presented for advice is whether the city officers have conflicts of interest relating to a contested case hearing involving the review of a decision of a city agency.  
 

            Following the city agency’s decision, a number of individuals filed a petition requesting a contested case hearing.  At a meeting, the three city officers disclosed to the parties that they would not be participating in the contested case hearing because they believed that they had disqualifying conflicts of interest.  That left too few members to hear the matter.  All three city officers submitted to the Ethics Commission Disclosure of Conflicts of Interest Statements requesting advice. 
 

            Mr. Viola stated that in its past advisory opinions, the Ethics Commission has generally taken a fairly cautious approach in analyzing conflicts of interest cases.  That is, where the facts present a “close call”, it has tended to find that there is a conflict of interest.   The rationale is that the purpose of the ethics laws’ conflicts of interest provisions – to protect the public’s confidence and trust in the integrity of government --  should override an individual officer’s or employee’s personal interests in close cases.  Stated otherwise, the Ethics Commission has taken the approach of liberally construing the conflicts of interest provisions to effectuate their purpose.
 

            If the Ethics Commission concludes that any of the three city officers have conflicts of interest, it must decide whether to recommend that they disqualify themselves from participating in the matter.  In its advisory capacity, the Commission has a longstanding practice of recommending disqualification in conflicts cases where the source of the conflict cannot be eliminated.  This approach acknowledges that, as a practical matter, the only way to avoid an ethics violation is removal from participation in the official action at issue.

            Mr. Viola stated that in this case, there does not seem to be any compelling reason to depart from the Commission’s practice of recommending disqualification.   It does not appear that any of the three city officers can take steps that would completely eliminate the source of the conflict.  Disqualification therefore appears to be the only way to prevent an ethics violation.  However, one of the consequences of recommending that all three city officers disqualify themselves from participation in the matter is that it might leave too few members to hear and decide the matter.   That consequence, and how to address it, are probably issues that should be left to the city officers’ appointing authority and its counsel.

            Mr. Viola stated that based on the foregoing, it is staff’s recommendation that the Ethics Commission:

            (1) opine that, under the ethics laws, the three city officers each have conflicts of interest with respect to their participation in the contested case hearing; and

            (2) advise the three city officers that they should recuse or disqualify themselves from participating in the matter.

            Upon discussing the matter, the Commission instructed staff to draft an advisory opinion for the Commission’s review, outlining the issues based on staff’s recommendation, and incorporating language to ensure that the opinion is narrowly drafted based on the facts of this case. 

VI.       ADJOURNMENT

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:07 p.m.