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HomeMy WebLinkAbout2011_0909_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 10/14/11 Board/Committee: BOARD OF ETHICS Meeting Date I September 9, 2011 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 a.m. I End of Meeting: 10:15 a.m. Present Chair Paul Weil; Vice-Chair Mark Hubbard; Secretary Warren Perry; Members: Kathy Clark; Brad Nagano Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator John Isobe Assistant Chief Roy Asher, KPD; Captain Kaleo Perez, KPD: Gina Kaulukukui, Domestic Violence Coordinator, KPD; Mark Marshall, Emergency Management Officer, Civil Defense Excused Member Kurt Akamine Absent MW MMM%4 SUBJECT DISCUSSION ACTION Call To Order Chair Weil called the meeting to order at 9:00 a.m. with 5 members present. Hearing no comments on the agenda, Chair Weil noted they would follow the agenda as submitted. Approval of Regular Open Session Minutes of August 12, 2011 Mr. Perry moved to approve the minutes as Minutes circulated. Mr. Nagano seconded the motion. Motion carried 5:0 Communications BOE 2011-15 Anonymous communication dated 7/29/11 to County Auditor Ernie Pasion regarding the use of County vehicles for personal use by the County Prosecutor's Office Mr. Perry moved to receive and file the communication. Ms. Clark seconded the Mr. Hubbard asked who would be the direct supervisor of the Prosecuting motion. Attorney. Mr. Perry thought it was the Attorney General. Mr. Hubbard followed up by asking if the Prosecuting Attorney's Office has to comply with policies and rules set by the Administration or Mayor's Office. Board of Ethics Open Session September 9, 2011 Page 2 SUBJECT DISCUSSION ACTION Mr. Isobe said "simply put, yes". Mr. Hubbard asked if there is a policy regarding use of County vehicles by certain people. Mr. Isobe said that is his understanding. Mr. Hubbard said he would like to refer this to the supervisor of the County Prosecutor to see if they are following the policy. Mr. Isobe said the vehicle policy currently in place might be more generic rather than specifically written to cover agencies such as the Prosecutor's Office. Motion carried 5:0 Attorney Clark said the Prosecuting Attorney is elected and therefore does not have an appointing authority as a supervisor but is bound by the Charter. BOE 2011-16 Memorandum dated August 16, 2011, from Jay Furfaro, Council Chair, Regarding a Possible Conflict of Interest with the Edward J. Byrne Memorial Justice Assistance Grant, County Council Agenda Item C2011-237 Mr. Perry moved to receive and file the communication. Mr. Hubbard seconded the motion. Motion carried 5:0 Request for an Letter dated 8/31/11 from Darryl D. Perry, Chief of Police, requesting an Advisory opinion from the Board of Ethics as to whether there would be a conflict of Opinion interest for the Police Department to submit a request for an exemption from Chapter 103 D, FIRS,to the Finance Director on behalf of Life's Bridges, a volunteer emergency support team. Mr. Hubbard said he is not sure how the exemption for Chapter 103 D Board of Ethics Open Session September 9, 2011 Page 3 SUBJECT DISCUSSION ACTION would work since they did not have a completed form to look at. However, Section 20.03 A of the Kaua'i Charter might be more relevant as it states "the county shall not enter into any contract with an officer or employee or with a firm in which the officer or employee has a substantial interest involving services or property of a value in excess of a $1,000 unless a contract is made after competitive bidding". The Charter does not define competitive bidding and the Board has had issues with the term competitive bidding in the past. Unless the Police Department undergoes competitive bidding,they should not have a contract with Life's Bridges because an employee of the Department, Gina, has a substantial interest in Life's Bridges. Ms. Kaulukukui explained that Life's Bridges received one grant when they started four years ago and they just received monies for a second grant they had applied for. Chair Weil asked why they were requesting an opinion from the Board of Ethics. Captain Perez replied that when they were seeking an exemption through the Purchasing Department, they were instructed to ask the Board of Ethics for an Advisory Opinion since members of the Department were also on the Board for Life's Bridges. Mr. Perry questioned if the catchall in the Code of Ethics that Purchasing is looking at is "use his official position to secure a special benefit, privilege or exemption for himself or others". Mr. Perry said given the program, he did not see any violation with asking for an exemption. The Chair reminded the Board that the request is to determine if there is a conflict of interest for the Police Department to apply for the exemption. Board of Ethics Open Session September 9, 2011 Page 4 SUBJECT DISCUSSION ACTION Attorney Clark commented that there is a direct conflict of interest under §20.03 in that Gina is acting as the Executive Director and clearly the amount is in excess of what was set forth by the Charter. Mr. Hubbard asked if there is an existing contract with Life's Bridges because the letter indicated they were owed $50 per call out for the last year or so. Assistant Chief Asher said there was no contract in place but they were looking for a mechanism in which that payment could be made. A.C. Asher is a board member(Life's Bridges) and a police officer (Kaua1 Police Department) where, in essence, the money would come from and that was where the conflict came from. Gina's role is an employee of the Police Department as well as the Executive Director of Life's Bridges but she has no control over the payments to Life's Bridges. That is solely A.C. Asher's responsibility. Ms. Clark said the conflict deepens in her mind because A.C. Asher is also on the board. Chair Weil said Attorney Clark expressed his direct concerns with this request. Objectively there has to be a conflict. While he did not want to deny them the opportunity to have the funds, his leanings were towards the fact that there has to be a conflict. A.C. Asher said he is prepared to resign from the board. The reason there is a police officer representative on the board is that the majority of the referrals to Life's Bridges is the nature of the Department's work, which is untimely deaths. When Life's Bridges was formulated as an organization, there was representation from the Police Department, the Fire Department Board of Ethics Open Session September 9, 2011 Page 5 SUBJECT DISCUSSION ACTION and various other agencies. When they first started this program, Ms. Kaulukui was not an employee of the Kaua'i Police Department. She is in the process of mentoring another Executive Director. She further explained that the monies go directly to the program and not to her, even though she has been on call 24/7 for the past four years without compensation. Ms. Clark said Life's Bridges is a tremendous asset to this island and she would like to find a way around it but did think there was a conflict there. Mr. Marshall stated he is Vice-President of Life's Bridges. The reason they were asking for the exemption is if they have to bid it outright when there are no other agencies offering this service, it would incur additional resources and monies. The exemption allows them to forego that process. Chair Weil agreed there would probably be no other bidders but there might be, which is why there is a provision for requesting public participation and bidding. The suggestion that they go back and follow the rules as outlined is proper even though it means delay and some additional expense. Mr. Hubbard agreed that the solution would be competitive bidding and asked if the Board of Ethics could agree on the definition of"competitive bidding"would they find any conflict in the Police Department making a contract with Life's Bridges. Mr. Perry said while the Department did budget for support services, what the Ethics Board should be deciding is if it is a conflict for the Police Department to apply for the exemption; not whether the contract would be illegal. Board of Ethics Open Session September 9, 2011 Page 6 SUBJECT DISCUSSION ACTION Chair Weil thought they would be looking to those members of the Board of Life's Bridges who are employees of the Police Department to recuse themselves from participation in setting the criteria for the contract. Attorney Clark thought they were setting into motion a process that is going to cause a conflict. What Purchasing is actually coming to this Board for is a request on the conflict issue, not just the simple request on the exemption issue. It is overly technical to say it is just the exemption issue. Mr. Hubbard said if there is a motion made that there is no conflict in applying for an exemption, he was fine with that. On the other hand,they need to be aware of§20.03 which says the County cannot make a contract with an employee that has a financial interest. If they go through this exemption it might well be a violation. Attorney Clark said there is also the issue about whether the Police Chief would be using his authority to get something that would not be available under the normal rules. This is clearly a violation of the procurement procedures because the payment request is not for a contract going forward. This is for services that have been rendered without contract and without any expectation of repayment. It sounds like a wonderful organization and if there is a way outside of the procurement code where they could get the funds, it would be well worth pursuing. Clearly the procurement code does not allow this sort of contract or exemption and this would be a situation where the Police Chief would be using his authority to get something that would not be available in the normal procedures. Mr. Perry declared for the record that the Police Chief is his brother. Also, Board of Ethics Open Session September 9, 2011 Page 7 SUBJECT DISCUSSION ACTION Mr. Perry is not speaking so much in favor of the application but rather to the contents of the application and the duties of the Ethics Board. Mr. Perry said they should concentrate on whether there is a violation to apply for an exemption rather than the procurement code itself. Attorney Clark said clearly Purchasing is asking for something more than that and the decision rendered by this Board is how it will be judged. Mr. Hubbard moved that the Board of Ethics find no conflict of interest for the Police Department to submit a request for exemption from Chapter 103D to the Finance Director on behalf of Life's Bridges volunteer emergency support team however the Board of Ethics notes that if such an exemption were granted there might be a violation of the Charter Section 20.03 A. Mr. Perry seconded the motion. Motion failed—Ayes (3): (Nagano; Perry; Hubbard) Nays (1): (Clark) Abstain (1): (Weil) Mr. Hubbard reminded the Board that they needed to do something with this request because if the Board did not render an opinion within 45 days, it is tacit approval. Attorney Clark was not sure if Board Member Perry wanted to participate in the discussion since the request came from his brother. Chair Weil said he could submit the motion in a slightly different form but did not think it would help in that it would say the Board finds a conflict of interest if a contract were to be granted to Life's Bridges without competitive bidding but there is no conflict of interest to submit a request for exemption. The second suggestion would be for the Police Department to withdraw its request at this time to enable them to proceed with Board of Ethics Open Session September 9, 2011 Page 8 SUBJECT DISCUSSION ACTION competitive bidding. Chair Weil noted the Police Department wished A.C. Asher said they would withdraw their request. to withdraw their request for an Advisory Opinion without prejudice. Business BOE 2011-17 Memorandum dated 8/23/11 from the Kaua'i County Charter Review Commission to the Chair and Members of the Board of Ethics requesting Comments and/or Recommendations as relates to the Kaua'i County Charter Article XX, Code of Ethics Mr. Hubbard said Advisory Opinions have caused the Board to question the definition of competitive bidding. Professional services goes through the process of qualifying the people and then selecting a panel to agree on the best deal; it is not a sealed bid. Mr. Hubbard said he is not looking to change the Charter but is looking for a definition for competitive bidding. Chair Weil agreed in large part that they should raise the issue of competitive bidding. Mr. Perry said Section 20.04 D which allows the Council to amend the Code of Ethics is listed under the Disclosures section. It should be a separate and additional section that allows Council to amend the Code of Ethics. Mr. Perry moved to submit to the Charter Review Commission a request to define competitive bidding and to provide for a separate section to allow Council to make amendments. Mr. Hubbard seconded the motion. Motion carried 5:0 Mr. Perry cited §20.05 of the Charter and asked for a clarification on what constitutes a quorum with regard to the powers of the Board and what constitutes official action by the Board. Is the majority based on those present or those to which the Board is entitled? Board of Ethics Open Session September 9, 2011 Page 9 SUBJECT DISCUSSION ACTION Attorney Clark said the ruling would come from H.R.S. §92-15 which deals with the majority and would take precedence. When it is not specified in the law or ordinance a majority of the members to which the board or commission is entitled shall be quorum. Mr. Perry felt that should be clarified in the Kaua'i Charter. Mr. Isobe pointed out that §23.02 J, General Provisions of the Charter, specifies that a majority of the members to which the board or commission is entitled constitutes a quorum. This Board could ask the Charter Commission to consider changing §29.05 C to be consistent with the General Provisions section and the H.R.S. Disclosures for review and examination by the Board of Ethics a. Joseph Figaroa(Public Access, Open Space Commission) b. Maurice Nakahara(Public Access, Open Space) c. Jodi Higuchi (Deputy County Attorney) d. Wendel Crutchfield (Deputy Prosecuting Attorney) Mr. Nagano moved that disclosures a. through d. were deemed complete and ordered to be filed. Mr. Perry seconded the motion. Motion carried 5:0 Executive Mr. Perry moved to go into Executive Session at Session 10:14 a.m. Mr. Nagano seconded the motion. Motion carried at 5:0 Mr. Perry moved to invite Mr. Isobe to remain for the Executive Session. Ms. Clark seconded the motion. Motion carried 5:0 Deputy County Attorney Clark cited the Hawai'i Revised Statutes that would take the Board into Executive Session. Board of Ethics Open Session September 9, 2011 Page 10 SUBJECT DISCUSSION ACTION 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 August 12, 2011 Return to Open The meeting resumed in Open Session at 10:14 Session a.m. Ratify Board of Ethics actions taken in Executive Session for item: ES-7: Executive Session Minutes of August 12, 2011 Mr. Hubbard moved to ratify the actions taken in Executive Session as relates to the Executive Session Minutes of August 12, 2011. Mr. Perry seconded the motion. Motion carried 5:0 Announcements Next Meeting: Friday, October 14, 2011 —9:00 a.m., Mo'ikeha Building, Liquor Conference Room 3 Adjournment Chair Weil adjourned the meeting at 10:15 a.m. Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Paul Weil, Chair O Approved as is. O Approved with amendments. See minutes of meeting.