HomeMy WebLinkAbout2011_1014_Agenda_Meeting Packet Paul Weil Members:
Chair Kurt Akamine
Kathy Clark
Mark Hubbard Brad Nagano
Vice-Chair
Warren Perry
Secretary
COUNTY OF KAUAI BOARD OF ETHICS
NOTICE OF MEETING AND AGENDA
Friday, October 14, 2011
9:00 a.m. or shortly thereafter
Mo'ikeha Building, Liquor Conference Room 3
4444 Rice Street, L-ihu'e, HI 96766
CALL TO ORDER
APPROVAL OF MINUTES
Regular Open Session Minutes of September 9, 2011
COMMUNICATION
BOE 2011-19 Memorandum dated September 14, 2011 from the Board of Ethics to the
Charter Review Commission providing input and comments regarding
specific areas of concern or issues related to Article XX, Code of Ethics
REQUEST FOR AN ADVISORY OPINION
RAO 11-005 Letter dated 9/27/11 from Councilmember Mel Rapozo requesting an
opinion from the Board of Ethics as to whether conflicts of interest exist
with the role of the Boards & Commissions Administrator and the Kaua'i
County Charter duties and responsibilities of the Salary Commission.
a. Communication dated 10/3/11 from Roy Morita testifying as an
individual regarding the role of the Boards & Commissions
Administrator and those duties and responsibilities to all boards and
commissions.
RAO 11-006 E-mail dated 10/4/11 from Bruce Pleas, Chairman of the Kekaha Host
Community Benefit Action Committee(KHCBCAC) requesting a
decision(Advisory Opinion) on whether KHCBCAC members are
required to submit a financial Disclosure Statement to the Board of Ethics,
a. E-mail dated 10/4"'ll from Jose Bulatao, Vice-chair of KHCBCAC
offering testimony as to why KHCBCAC members are not required to
submit a financial Disclosure Statement to the Board of Ethics and
requesting an opinion.
An Equal Opportunity Employer
BUSINESS
BOE 2011-20 Consideration of changing the November meeting date to Thursday,
November 10, 2011, at 9:00 a.m. to accommodate the November holiday
schedule.
DISCLOSURES for review and examination by the Board of Ethics
a. Nathaniel Childs (Public Access"'Open Space Commission)
b. Arryl Kaneshiro (Cost Control Commission)
c. Lance Kobashi-awa(Deputy Prosecuting Attorney)
d. John Isobe (Boards & Commissions)
EXECUTIVE SESSION
Pursuant to Hawaii Revised Statutes § 92-4 and 92-5 (a) (4), 92-9 (a)(1-4) (b), the purpose of
this executive session is to receive and approve Executive Session minutes and to consult with
the Commission's legal counsel on issues pertaining to the Commission's and the County's
powers, duties, privileges, immunities, and/or liabilities as they may relate to this item, deliberate
and take such action as appropriate.
ES-7: Executive Session Minutes of September 9, 2011
RETURN TO OPEN SESSION
Ratify Board of Ethics actions taken in Executive Session for items:
ES 7: Executive Session Minutes of September 9, 2011
ANNOUNCEMENTS
Next Meeting: Friday, November 18, 2011 —9:00 a.m., Mo'ikeha Building, Liquor Conference
Room 3
ADJOURNMENT
NOTICE OF EXECUTIVE SESSION
Pursuant to Hawaii Revised Statutes §92-7 (a), the Commission may, when deemed necessary,
hold an executive session on any agenda item without written public notice if the executive
session was not anticipated in advance. Any such executive session shall be held pursuant to
HRS §92-4 and shall be limited to those items described in HRS §92-5(a).
c: Mona Clark, Deputy County Attorney
PUBLIC COMMENTS and TESTIMONY
Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours
prior to the meeting indicating:
1. Your name and if applicable, your positiow I title and organization you are representing;
2. The agenda item that you are providing comments on-, and
3. Whether you will be testifying in person or submitting written comments only.
21112
Board of Ethics—October 14, 2011
4. If you are unable to submit your testimony at least 24 hours prior to the meeting, please
provide 10 copies of your written testimony at the meeting clearly indicating the name of
the testifier; and
While every effort will be made to copy, organize and collate all testimony received, materials
received on the day of the meeting or improperly identified may be distributed to the members
after the meeting is concluded.
The length of time allocated to persons wishing to present verbal testimony may be limited at the
discretion of the chairperson or presiding member.
Send written testimony to:
Board of Ethics
Attn: Barbara Davis
Office of Boards & Commissions
4444 Rice Street, Suite 150
LThu'e, HI 96766
Email: bdavis Cd,,kauai.gov
Fax: 241-5127 Phone: 241-4919
SPECIAL ASSISTANCE
If you need an alternate format or an auxiliary aid to participate, please contact the Boards &
Commissions Support Clerk at 241-4919 at least five(5) working days prior to the meeting.
3 P
Board of Ethics—October 14, 2011
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Paul Weil Members:
Chair Kurt Akamine
Kathy Clark
Mark Hubbard ti 9r r 4� Brad Nagano
Vice-Chair 0
Warren Perry
Secretary
COUNTY OF KAUA'I BOARD OF ETHICS
TO: Chair Sherman Shiraishi and Members of the Charter Review Commission
cc: Bernard P. Carvalho, Jr., Mayor
Gary Heu, Managing Director
FROM: Paul Weil, Chairperson
Via: John Isobe, Boards and Commissions Administrat r
DATE: September 14, 2011
RE: Comments Related to Article XX, Code of Ethics
The Board of Ethics, at its meeting on September 9, 2011, considered the Charter Review
Commission's request for comments and/or recommendations regarding specific areas of
concern or issues related to the existing language in the Code of Ethics that the Ethics Board may
have encountered during it deliberations.
In response to the above, the Board of Ethics recommends that the Charter Review Commission
consider the following:
Section 20.03 A—provide clarifying language or a definition for the term"competitive bidding".
Section 20.04 D—place the existing language into a new Section to clarify that the Council's
authority to adopt supplementary provisions is not only limited to the"Disclosures"provisions
of the Ethics Code.
The members also discussed the need to clarify Section 20.05 C, by specifying that, "...the
affirmative vote of at least a majority of all the members to which the board is entitled shall be
necessary to take any action." This proposed revision is consistent with the provisions of Charter
Section 23.02 J and HRS § 92-15.
Thank you for the opportunity to provide comments.
An Equal Qpportunity Emplqver BOE 2011-19
COUNTY COUNCIL OFFICE OF THE COUNTY CLERK
JAY FUBFA0u, CHAIR Council Services Division
|0ANINa. YU8OMURA. VICE CBaIR Elections Division
TlMurNUK& PETER A. NAKa0DRA, County Clerk
0[CK/F[BaNG EnUARD0T0PEN/8. JQ.. Deputy County Clerk
K/PUKAIKUAL|'l OF
NADINE K. NAKaNIVnA Telephone: (80m)24|-f/88
mELR»POzU 4396 RICE STREET, SUITE 2o9 Fac'/mde: (808)-141-6349
LJ8n'E. K-AUa1BavvmY'/ 96766
c'md|: comzouuoil(lkuvuinov
September 27, 2011
S& 2 12011
The Honorable Paul Well, Chair
8c Members uf the County ofl{auu'i Board ofEthics
c/o Office o{Boards J» Commissions
4144 Rice Street, Suite lGO
Ulho'e. 8l 967G6
Dear Chair Weil and members uf the County ofI[uoa'i Board nfEthics:
SUBJECT: REQUEST FOR BOARD OF ETHICS ADVISORY OPINION
DnriogtbaKauaiCouoty (3ouocil'a (`^C000cd`m'`) de{iberatioms/ ouLheCouutyof
I{uuu'i Salary Commission's ("Salary (]unozoieoioo`a'') Resolution No. 2011-1. questions have
been raised in testimony about whether conflicts of interest exist with the role of the
8nmrde &c Commissions Administrator (''z\dooioiotrutoc'') and the Kaoa'i County Charter
("Charter") duties and responsibilities of the Salary Commission.
lu the case ofSalacv Commission Resolution No. 2OII-I ('Beao|odaoNo. 201 1-l"),
the public record of the Salary Commission's consideration and adoption of Resolution No.
201I'1 indicates that the Administrator was asked tn submit x proposed draft oYResolution
No. 2011-1 at the request of the Salary Commission Chair before the July 26, 20 11, Salary
Commission meeting. Resolution No. 2011-1 was subsequently adopted ut the Salary
Commission's August 5. 2011. meeting. It was also noted iutestimony that the Salary
Commission had not met since November 20IO.
At this same July 2G. 2011. meeting request by Mayor Bernard P. (]urvalbo. Jr..
dated July 15, 2011, to defer his salary increase scheduled to have taken effect on July 1,
20ll (as previously authorized 6ySmlory Commission Resolution No. 2OI0'l) was oothe
Salary C000nuiomioo`m agenda for discussion. Also on the Salary Cooarniomioo'o Job/ 26. 20I1.
agenda was Ordinance No. 907 (listed as Bill No. 2305. Draft l, A Bill for an Ordinance to
Amend Chapter 3, of the Kaua'i County Code 1987, as Amended, Relating to the Salaries of
County ()O3cexn and fCmp!oyees), which had incorporated the Administrator's position
under the Salary Commission's salary—setting authority,
/ &auu'i County Charter;Section 29,03. Resolution.The commission's salary findings shall b^adopted by
resolution of the commissionand forwarded to the mayor and the council on or before Xfarch L5.Subject to
Section 2805. the resolution shall take effect without the mayor's and council's concurrence sixty days after its
adoption unless rejected by a vote of not less than five members of the council, The council may reject either the
oo,ure resolution o,any portion of it, The respective appointing authority may set the salary of an appointee at a
figure lower than the figure established byordinance for the position,
Aw EQUAL OPPORTUNITY EMPLOYER R/\O 11 -005
September 27. 2011
Page 2oy2
Testimony submitted to the Council during its J&ecuoaioaa no Resolution Nu. 20I1'1
raised concerns on whether the actions taken by the Salary Commission might involve
various conflicts o[interest,
Firet, rather than independently establishing the basis ofits salary—setting
decisions io public meetings, the Salary Commission appears t* be functioning uy an "arm"
of the Mayor's Administration. Since the Salary Commission's authority includes elected
and appointed officers within the Administration, the question raised is whether having the
Administrator submit u draft ofResolution No. 2011'1 to the Salary Commission with
io8urozutiuu and guidance reflecting the Administration's salary—setting objectives
(including the Mayor's July 15. 2011. request Co defer his July l. 201I. salary increase) with
no prior guidance from the Salary Commission would involve a conflict o[interemt.
SecooJ, the appearance of onufbut of interest in the relationship between the Office
of Boards & Commissions and the Salary Commission is further exacerbated by the fact
that Salary Commission Resolution No. 2011'1 (drafted by the Administrator atthe ceguomC
of the Salary Commission Chair) also incorporated a salary schedule for the Administrator.
Pursuant to Section 20.05 D.(2) of the Kaua'i County Charter2, I would request that
the County ofFCaoa`i Board of Ethics render ao advisory opinion ou whether any n{the
actions taken by the Salary Commission ioadopting Resolution No. 2Ull'1 contain conflicts
uy interest between the Administration and Salary Commission.
Please feel free to contact me if you may have any questions, or if you may require
further information. Thank you for your ticualv consideration u{this request.
Sincerely,
Councilmember
copy: Couocilroernberm
Office of Boards 66Commissions
Mayor Bernard P, Cmcval&o' Jr,
Alfred B. Castillo, Jr.. County �kttoroey
2 Kaua'i County Charter;Section 20.05 D. b shall he the function of the board:
(%)7o render advisory opinions^r interpretations with respect to application oy the code oorequest,All
requests for advisory opinions shall be answered within forty five 05)days of its filing and failure to submit an
advisory opinion within said forty fiww(45)days shall be deemed u finding vfmn breach nf the code, Opinions
rendered or deemed rendered shall be binding on the board in any subsequent charges concerning the officer or
employee^f the county until said opinion is amended or revoked 6y the board,
..............
3 2
October 3, 2011 9
Chair Paul Weil and Members of the Board of Ethics
4444 Rice Street, Suite 150
L-ihu'e, HI 96766
RE: Request for an Opinion by Council member Mel Rapozo
Dear Chair Paul Weil and Members of the Board of Ethics,
I am testifying as an individual and my comments are my personal opinions and not that of the
Civil Service Commission of which I am a member. Council Member Rapozo stated that each
board and commission should remain as an independent body. This statement was made in
response to Mr. John Isobe's assistance in drafting a salary resolution. My understanding is that
Mr. Isobe was asked by the Chair of the Salary Commission to draft a resolution so that the
Salary Commission members could review it and make whatever changes they wanted to.
As a member of the Civil Service Commission, I have on numerous occasions met with Mr.
Isobe to get his prospective on a number of issues. At no time has Mr. Isobe responded by saying
"this is the Administration's view". His response was always a neutral opinion and the final
decision was always left for the Commission as a body to decide.
If this Board finds that Mr. Isobe was in violation by assisting the Salary Commission,who will
assist the various boards and commissions should a question arise? Will the various boards and
commissions be mandated to be totally independent and not be able to get information/assistance
from the Office of Boards and Commissions other than secretarial support?
As a volunteer for the Civil Service Commission I strongly feel that we need proper guidance at
all times. If this guidance can no longer be provided by the Administrator of the Office of Boards
and Commissions. who will the various boards or commissions turn to get assistance?As
Council Member Bynum stated, "I don't write my communications, I have staff write them,"My
point is that boards and commissions should not be charged with the responsibility of writing
draft documents or communications of any sort that require a background in government laws,
policies and procedures.
According to § 7,06B of the County of Kaua'i Charter:
"B. The administrator shall assist in providing administrative and operational
T-�
support to the various county, boards and commissions. Such support shall
include, but not be limited to: assisting in the recruitment,orientation,education,
RAO 11-005 a.
and training of board or commission members regarding their powers, duties,
functions, and responsibilities under the charter, especially as such powers,
duties, functions, and responsibilities may relate to the particular board or
commission to which they have been appointed; helping to educate such
members about applicable state and county ethics laws and the State Sunshine
La,,v; assisting the Office of the Mayor to fill any -vacancies on any board or
commission,, being a resource to assist the various county boards or commissions
in gathering such information, documents, and data as such boards or
commissioms, may deem necessary to perform its farictions; serving as a
communications liaison between boards and commissions and the various
county departments, offices, and agencies that such boards and commissions
may interact with, to help ensure that various boards' and commissions'
information needs are addressed in timely fashion."
Thank you for allowing me to provide this testimony.
Sinceretv
Roy Morita
Barbara Davis
From- Bruce Pleas,
Sent: Tuesday, October 04, 2011 10:04 AM
To: Barbara Davis
Cc: Beth Tokioka,- Diane Zachary
Subjeict: From Bruce Pleas KHCBCAC Chair
Aloha Barbara,
The Kekaha Host Community Benefit Community Action Committee requests agenda time at the next Ethics
Board meeting for a decision on the following question,
Are the KHCBCAC members required to submit the County of Kauai Disclosure Statement(Disclosure Form
April 8, 2011)to the Board of Ethics?
Mahalo,
Bruce Pleas
KHCBCAC Chair
RACE 11 -006
Barbara Davis
Subject: FW-. FILING OF DISCLOSURES
From: Jose Bulatao, Jr. [mailto:
Sent: Tuesday, October 04, 20119:40 AM
To: John Isobe; Mayor; Gary Neu; Jay Furfaro; jyukimura@; Tim Bynum; Dickie Chang; Kipukai KuaIii; Nadine Nakamura;
Mel Rapozo; Bruce Pleas; RJack27; MEIIiott003; Diane Zachary; Thomas Nizo; Pauline Kupo
Cc: mary buzasims; Lola Cruz; Robert Sims; Dennis Eguchi; Pastor Manny; gregg holzman; Patrick Pereira; Bobbie
Franklin; Tanya Nitta; Herberta Hanakaulani Montgomery; Mary Manuel; Jimmy Torio; Millie Wellington; Jason-Yoshida/
Subject: Fw: FILING OF DISCLOSURES
Aloha,
We have shared responsibilities regarding the Kekaha HCB Fund allocation which has been
granted to this community because Kekaha is in closest proximity to the County of Kauai's
municipal landfill. With that in mind. I am requesting for the following excerpts to be forwarded to
the members of the Board of Ethics Commission for review and comment.
With regard to the work of the Kekaha HCB CAC, the question has been raised: Are members
appointed to Citizens Advisory Committees (CAC) regarded to be equivalent to members
appointed to Boards and Commissions (according to the Kauai Charter)?
The excerpts below may provide insights in response to that question:
Briefly, Charter Section 6.03 allows for the "creation of Advisory Committees." This is under Charter
Article VI, Executive Branch, and it states:
Section 6.03. Creation ofjdvisoa, Committees. The mayor or department heads, with the approval of the
major. may each appoint advif oo; committees. Such advisory corm trees shall not exist beyond
the term of office of the appointing authority. The members qfadvi.i o�y c-ommittee.f shall not be-paid,
but their authorised expenses shall be_paid_f rom ap prw_ n.a tz o lf to the appointin g .ulhori3i. AdTi sor y
conunittees shag have no employces but each a p oin lin g authority=Shall e au.ce efl�ployeej of the
p
de
partment to furnish sud).fervieef as mays be needed by the committees.
Under Charter Section 23.420, "members of all boards or commissions shall serve for staggered terms
of three years...7'
C The members of boards or conmVssions shag serve for staggered terms of three
years and untit their successors are appointed. I lovvver, no holdover lemishal,!extend beyond
ninety days.
RAO 11-006 a
a.
This is a clear area where differentiation between committee and cone-nission is noted.
Staggered terms do NOT apply to Citizens Advisory Committees.
Also, under Charter Section 23.02, all boards or commissions are "...vested with the power and
authority as provided hereunder which are not in conflict with the provisions of this Charter:
Section 23.02. Boards and Commissions. The council may create such otlger boards and ooflIfflifsionf, not
provided beran, by ordinance. -A//boards and to,-,vnviffions, including those x1Vd) are f t�l -ag
e- i ll ro ided for
P C -P V -
berein., shall be organized, appointed and vested with the power and authority as provided
hereunder which are not in conRict with the provisions of this charter.
This means that boards or commissions also have subpoena powers, as provided for under Charter
Section 23.02K:
K. All boards and commissions shall have lhepoxer to fu&poena xitneffes and administer oaths to witnesses as
In all matters mithin the scope of such boards or commissions.
Here is another clear differentiation. Boards and Commissions have subpoena powers. This is
NOT a power that is extended to citizens advisory committees.
Also, members of boards or commissions are considered "officers of the County." Charter Section
13.01 ("Definitions") states:
D. The term "officer" shall include the following:
(2) Any person appointed as administrative head of any agency of the county, or as a
member of any board or commission. fpm basis added_1
It appears that members of citizens advisory committees are NOT considered "officers of the
County." Therefore, since the "Disclosure" section of the Charter under Article XX ("Code of
Ethics") requires (among others) "members of boards and commissions" to file disclosures
,with the Board of Ethics, it is SILENT at best on members of advisory committees:
2
Section 20.04. Disclofure,
A. The mqj�or. cou&ioerf onf, all de
parlivent heads and ie. b of boardsand
117 deputies, Mern ers
conwVssions and the purchasing adminif trator. and delegated :ed
to ac/on behalf ql'
the director ref finance and the depu,t, director of finance i n their aki-ence shall n4thin thirty= (3Q dq qfaKutmiu
g
qff-ice,file with the board a list of all real_propel within the couqj�in xhich he has any right, title or interest, a
li.fl olfall b`ufinefs_#roif which contract'for couq,; bufineu in Which he has any interest and all their ace.f of
_pL
emplqj,ment, including pad-five em plo,, enl all sources and amounts ql"in
come, business oxnershp
, q#i
er and
directorpofitions, debts, creditor interests in in.oirent busineffe.�and the names of perfonf represented before
,gonernment a
,genaef. Amendments to Me list, * cludin g ad dilion , deletion or chagef i'n fili`e� i*n teref t i*n
propey
or of e)v
p lo�,,nienl, shall be made within thirty (30) dqjs of the occurrence of the amendment. The list shall be a
matter of public Pub" record. (14mended 2010
In light of the fact that I have served on other CAC's previously, I was NOT asked to fill a
disclosure form. Consequently, there is a consistency factor in making this a requirement for
the Kekaha HCB CAC.
It was also pointed out that the Kekaha HCB is "dealing with huge sums of County funds." In
"dealing with huge sums of County funds", the Kekaha HCB CAC only does so as a conduit
to encourage and empower the community of Kekaha to expend that fund through projects
and proposals that are deemed to be beneficial, appropriate, affordable, and approved by the
community. The mayor and council will have recommend and release the funds to those
projects and proposals that have been recommended and processed accordingly.
Consequently, the CAC, itself, does NOT handle any of the funding directly.
Furthermore, when this CAC was organized in April, 2009, NO ONE was required to provide
this information (which is standard procedure for all Boards and Commissions. Two and a
half years after this CAC was formed and in operation, we were asked to fin out this form
within 30 days of being notified that we had not done this at the beginning as "required".
This "requirement" is questionable. Therefore, I am requesting for an opinion from the
Board of Ethics regarding this issue with clear and concise explanations to support its
findings.
Sincerely,
Jose Bulatao,Jr.
Vice-chair, Kekaha Host Community Benefit Citizens Advisory Committee
3