MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

Date and Place:            November 23, 2004

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

Present:                        Robin D. Liu, Chair

                                    Lex R. Smith, Vice Chair

                                    Susan S. Heitzman

                                    Robert J. Fishman

                                    Raymond H. Fujii

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

                                    Matthew J. Viola, Outside Counsel

Stenographer:               Norm Fisher 

I.          CALL TO ORDER

            The 379^th meeting of the Ethics Commission (Commission or EC) was called to order at 11:55 a.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF
            THE SEPTEMBER 21, 2004 OPEN MEETING

            The minutes of the open meeting of September 21, 2004, were unanimously approved.

III.       OLD BUSINESS

A.        Setting the date(s) and time(s) of the December 2004 and January 2005
                        meetings

            The EC scheduled meetings for December 14^th, 2004, at 11:30 a.m., and January 18^th, 2005 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211.

IV.       NEW BUSINESS

A.        Administrative news

            The Executive Director and Legal Counsel (EDLC) referred to his open session memorandum of October 19, 2004.

            B.                 Preliminary report on the Ethics Commission's responsibility to regulate
                        lobbyists

            The EDLC reported that Article 14 of the Hawaii Constitution states that each county shall adopt a code of ethics to be administered by the county's ethics commission.  The EDLC stated that Article 14 goes on to require that "[e]ach code of ethics shall include, but not be limited to, provisions on gifts, confidential information, use of position, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restriction." 

            The EDLC stated that city law currently requires that lobbyists register with the City Clerk's office and that the Council has the power to suspend a lobbyist.  This structure appears contrary to the state Constitution.

            The EDLC stated that the issue for the Commission is whether it would like staff to continue to review the lobbying regulation in the city to determine: (1) the legal and policy reasons, if any, why lobbying was not placed in the EC's jurisdiction; (2) the cost expended by the City Clerk's office to ensure registration and compliance with lobbying laws; (3) what laws would need to be changed should the Commission want to examine the option of assuming jurisdiction over lobbyists; and (4) other relevant issues.

            After discussion, the EC instructed the staff to continue to review the issues involving the lobbying regulation in the city.

C.        Report and recommendation regarding whether firefighters should be considered as city personnel who have the authority to enforce the law for purposes of gift restrictions, EC No. 03-121 (o)

            The EDLC referred the EC to a Confidential Memorandum dated September 27, 2004 by Matthew Viola, Esq., regarding Gifts to Firefighters, and turned this topic over to Mr. Viola for discussion.

            Mr. Viola reported that the issue presented is whether, as a result of the firefighter's inspection duties, they should be classified as city personnel with the "authority to enforce the law."  If so, they would be prohibited from accepting any gifts under the Gift Guidelines.

            Mr. Viola stated that there is no question that firefighters have some authority to enforce the fire code.  The HFD's own "Company Inspection Program Procedural Manual" recognizes this fact.  However, there is no question that enforcing the law through his/her role in conducting inspections is not a firefighter's primary duty in the same sense that enforcing the law is the primary responsibility of a police officer or a Liquor Commission inspector (or even a full-time member of the HFD's Fire Prevention Bureau).  Mr. Viola stated that out of the 240 hours per month that a firefighter is typically on duty, he or she is required to conduct inspections for only 10 hours – only about 4% of on-duty time.

            In concluding, Mr. Viola stated that the staff recommends that the EC issue an advisory opinion that the Gift Guidelines ban on the solicitation or acceptance of gifts by officers or employees with law enforcement authority should not be applied to firefighters working out of station houses.

            After discussion, the EC moved, seconded, and unanimously carried to adopt the staff's recommendation.

             D.                 Appointment of additional commissioner

            The EDLC reported that Matthew Kobayashi had been nominated to be a member of the Commission, and that the confirmation hearing by the City Council is scheduled for December 1, 2004.

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the September 21, 2004
                        meeting

The minutes of the executive session of September 21, 2004 were unanimously
approved.

B.         Report and recommendation regarding possible violations of RCH Sec. 11-104 (use of city position or resource for special treatment) by an officer of the Department of Prosecuting Attorney, EC No. 04-028 (w)

The EDLC reported that the EDLC received a request for advice regarding whether an officer of the Department of Prosecuting Attorney ("PAT") violated the city's standards of conduct. 

The EDLC stated that the Commission must inform the officer of the allegations and the facts supporting those allegations.  This is done through a Notice of Possible Violation of the Standards of Conduct (Notice).  The Notice describes the alleged misconduct and gives the officer the opportunity to respond to the allegations in writing and/or in a hearing before the EC.

The EDLC stated that there is credible information showing the officer may have violated the ethics laws.  Therefore, staff recommends that a Notice, along with the letter requesting advice, be transmitted to the officer.

            After discussion, the EC moved, seconded, and unanimously carried to adopt the staff's recommendation.

            C.            Request for salary increase for the EDLC

            After discussion, the EC moved, seconded, and unanimously carried to provide the EDLC with a 5% pay raise as required for all civil service excluded managerial employees by Mayor's Directive No. 2004-4.

            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 12:20 p.m.