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HomeMy WebLinkAbout2011_1101_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Special Meeting OPEN SESSION Approved as amended 12/9/11 Board/Committee: BOARD OF ETHICS Meeting Date I November 1,2011 Location Mo`ikeha Building,Liquor Conference Room 3 Start of Meeting: 2:00 p.m. I End of Meeting: 3:41 p.m. Present Chair Paul Weil;Vice-Chair Mark Hubbard; Secretary Warren Perry;Members: Kurt Akamine;Kathy Clark Also: Deputy County Attorneys Mona Clark and Jennifer Winn;Boards&Commissions Office Staff. Support Clerk Barbara Davis; Administrative Aide Paula Morikami Testifiers: Mayor Bernard P. Carvalho,Jr.;Boards&Commissions Administrator John Isobe;Councilmember Mel Rapozo; Councilmember Tim Bynum; Salary Commissioner Charlie King; Salary Commissioner Bill Dahle. Members of the Public: Jose Bulatao;Horace Stoessel;Phyllis Stoessel;Ken Taylor;Lonnie Sykos Excused Member: Brad Nagano Absent jFr SUBJECT DISCUSSION ACTION Call To Order Chair Weil called the Special Meeting to order at 2:00 p.m. with a quorum of 5 members present. The Chair noted the meeting had been duly noticed and posted and having heard no changes or comments,the Board would proceed with the agenda as submitted. Request for an RAO 11-006 Request from Bruce Pleas, Chairman of the Kekaha Host Advisory Community Benefit Community Action Committee(KHCBCAC) Opinion requesting a decision(Advisory Opinion)on whether KHCBCAC members are required to submit a financial Disclosure Statement to the Board of Ethics(Deferred from 10/14/11 meeting) Jose Bulatao said with only 4 Board of Ethics members present at the last meeting,he was prepared to do a summary of his concerns to bring the other members up to date. Mr.Hubbard moved that the Board of Ethics offer an Advisory Opinion that the Kekaha Host Community Benefit Action Committee members were not required to file a financial disclosure statement. Mr.Akamine seconded the motion. Board of Ethics Open Session November 1, 2011 Page 2 SUBJECT DISCUSSION ACTION Asked to explain the basis for this motion,Mr.Hubbard considered this Community Benefit Action Committee to be an advisory committee. Attorney Clark said it was an advisory committee deemed similar to a board by OIP(Office of Information Practices). Mr.Hubbard said there were many other advisory committees not required to file financial disclosure statements and the Charter states that members of boards and commissions must file disclosure statements. Mr. Hubbard said they should not require for one(advisory committee)what was not required of others even though it had been stated that KHCBCAC was a slightly different advisory committee. Chair Weil asked if OIP had made any determination regarding financial disclosures for this kind of organization. Attorney Clark responded no;when OIP made this ruling they were dealing with the Sunshine Law as to whether they had to have open meetings and what that required. They looked at a situation where there were vision teams set up by the Mayor of Honolulu and each given$2 million apiece to advise on the distribution within their area. OIP said for the ose of Sunshine rules that it was a county board. Motion carried 5:0. RAO 11-007 Letter dated 10/21/11 from John Isobe,Boards& Commissions Administrator,requesting an opinion from the Board of Ethics as to whether he and/or the Office of Boards and Commissions acted improperly or violated anv provision of the code of Ethics in assisting the Salary Commission with the adoption of Resolution No. 2011-1 as detailed in Councilmember Rapozo's letter dated 9/27/11. Attorney Clark recused herself from this item on the agenda. Chair Weil believed the information that was received from the County Attorney's Office said this was a matter which could only be considered in Board of Ethics Open Session November 1, 2011 Page 3 SUBJECT DISCUSSION ACTION Executive Session. Attorney Winn said the complaint filed by Councilmember Rapozo was advised to be a complaint rather than an advisory request. Mr.Isobe's letter was a request for an Advisory Opinion which according to the Board's Rules could be held in Open Session. Horace Stoessel said he had previously submitted written testimony and asked the Board if they had any responses or questions to that testimony. Mr.Hubbard had one question regarding Mr.Isobe and not the Salary Commission in which Mr. Stoessel stated that Mr.Isobe improperly accepted the task of preparing a draft resolution for the reasons outlined in the previous two paragraphs. Did Mr. Stoessel consider it a violation of any Code of Ethics? Mr. Stoessel said he considered his response was to the question Mr.Isobe had raised in whether or not he had acted improperly. What was implicit in Mr. Hubbard's question was what was the scope of the Board of Ethic's responsibility as well as the Code of Ethics and part of the Code cited in Mr. Stoessel said his testimony was the stated purpose of the Code which is to establish a high standard of integrity and morality in County government. Based on that Mr. Stoessel reminded everyone that Ethics was about doing what was right;doing what was right was not confined to any particular provision within the Code of Ethics which is an open-ended document. Chair Weil asked for a motion to receive Mr. Stoessel's testimony and order it filed. Mr.Akamine so moved. Ms. Clark seconded the motion. Motion carried 5:0. Ph llis Stoessel said each board and commission is intended to be Board of Ethics Open Session November 1, 2011 Page 4 SUBJECT DISCUSSION ACTION independent m carrying out its responsibilities and exercising its powers; this is implicit in the Charter. If the Board issues an Advisory Opinion finding Mr.Isobe's actions in assisting the Salary Commission with the adoption of Resolution 2011-1 to be ethical,the Board of Ethics will be extending the responsibilities of the Boards and Commissions Administrator beyond those authorized by the Charter. After having not met for almost 9 months,the Salary Commission was to consider a draft resolution deferring the Mayor's salary increase in accordance with the Mayor's communication but the resolution drafted by Mr.Isobe at the request of the Salary Commission Chair extended beyond that request Proper procedure would have been for the Salary Commission to first determine if a resolution was needed and what that resolution should include. The staff at the Boards and Commissions Office would then prepare the resolution based on instructions from the Commission. There was an implied interference in the independent actions of the Commission when the Administrator presented a draft resolution before it had been deliberated by the Commission and broader in scope than the issue before the Commission. Mayor Bernard P. Carvalho, Jr., conveyed his sincere thanks to the Board members for their service to the people of Kaua'i and for undertaking ajob that is not easy. The Mayor said that even though he is an ex officio member of all boards and commissions,over the span of 35 months his appearances before the boards and commissions have been mostly to share his vision for either the department that the board or commission oversees or to share his vision in general. Very rarely has he had to appear to provide testimony on an agenda item that boards or commissions may be considering. The issue before the Board of Ethic relates to a letter that the Mayor had written to the Salary Commission asking for their assistance in assuring that if our union employees were not to receive a pay raise this ear,that he,likewise,would not receive a pay raise. There were no Board of Ethics Open Session November 1, 2011 Page 5 SUBJECT DISCUSSION ACTION hidden agendas;there was nothing for the Mayor or anyone who works for the Mayor to gain in asking for that consideration. If extending a simple four paragraph letter to that effect asking for consideration,not issuing an order, and taking no further action than that was deemed to be interfering with the matters of the Salary Commission then he may be guilty as charged. The Mayor sent a similar letter to the Salary Commission in 2009 and no one raised a concern at that time that he was exerting undue influence over the Commission or that they were acting as an arm of the Administration or that there was any kind of conflict of interest on the part of the Commissioners. The Mayor was not sure how his testimony or actions were any different from the testimony provided by other elected officials before the Salary Commission or any other county board or commission. Members of the County Council and the Prosecuting Attorney have provided testimony on any number of issues in the past and have they been accused of interfering? A companion issue that the Board of Ethics had been asked to consider was whether our Boards and Commissions Administrator has acted in an unethical manner in his actions to support the Salary Commission in their consideration of the Mayor's request The Mayor said he found that allegation to not only be baseless but apparently without regard for the very reason the Administrator's position exists. The Office of Boards and Commissions was set up to support the various bodies in the work they need to do. It was recognized that a much higher level of support was needed than what was historically provided and this Office was established via a successful charter amendment—the will of the people. Mr. Isobe and his staff take very seriously their mission to support our volunteer boards and commissions to the best of their ability. Mr. Isobe submitted his testimony in response to these allegations and the Mayor supports him one hundred percent. If there was anything improper in the way Mr. Isobe proceeded in this matter he would be the first who would want to know and he would ensure that an recommendations the Board might make for his operations in the Board of Ethics Open Session November 1, 2011 Page 6 SUBJECT DISCUSSION ACTION future would be taken seriously and implemented immediately. The Mayor repeated that he had no intent to unduly influence the Salary Commission to take an action but it was important to ask them to consider the salary freeze for the position stated. The Mayor or any citizen should not feel restrained or inhibited from sharing their point of view with any board or commission when the issue is imperative to the successful operation of that board or commission or to the County of Kaua'i as a whole. In fact, it is the Mayor's obligation and duty. Secondly,you will see John Isobe's actions in this matter as not improper but as the actions of a professional who is doing his job to the best of his ability as directed by those who he serves. The Board of Ethics can draw upon its own experience with Mr. Isobe in reaching a conclusion of whether or not his actions were an intentional breach of his duties,were intentionally improper or were proper in his role as an administrator. Mel Rapozo said it was not the Mayor's letter that triggered any of the questions. The question was the process. The Mayor did the noble thing by submitting that letter to the Commission about his own salary,not the rest of the department heads and appointed officials. That was what was on the agenda and the real question here. The Mayor's letter was dated July 15 and on July 26 it showed up on the agenda;the Commission had not even met prior to the 26s'. How would Mr.Isobe know what to put on that draft resolution? One can only assume there had been some sort of discussion prior to the July 26 meeting, otherwise how would the content of the resolution be put on paper? On that final draft of the resolution was Mr.Isobe's position which had his salary that was not on the prior resolution and raises a question. That salary was more than what Mr. Isobe had been getting which would raise an ethical question. Typically the Commission would meet in public, address the agenda item and then the direction given as to what was to be done. In this case the draft resolution was pr esented at the meeting. How did the information get to Board of Ethics Open Session November 1, 2011 Page 7 SUBJECT DISCUSSION ACTION Mr. Isobe and to the resolution to be presented at the meeting unless there was a meeting that was not posted? Mr.Hubbard asked Mr.Rapozo if this was related to a definition of a resolution or was it about any item that is brought before a board or commission. If a councilman submits something to the Council is there lots of discussion or does one Councilman submit it and how is this different for a resolution? How is this different from asking the Chair to put something on the agenda? Mr. Rapozo said if a member of the Salary Commission introduced the resolution or asked the Chair to put a resolution on the agenda that would not be a problem as it was originated out of that individual member. This was a request that came externally from outside,placed on the agenda and there was no discussion by the Commission to address the agenda item. Mr.Rapozo's concern was that it was a member of the Administration that brought the resolution, drafted by the member of Administration who was appointed by the Mayor. That was different from asking to put something on the agenda. Mr. Rapozo said he drafts his own bills and when it is put on the agenda it is his bill. In this case,the resolution had already been done and ready for introduction prior to any discussion with the Commission. How would Mr.Isobe know what to put on the resolution without having met with the Commission? That indicated prior discussion which is a violation of the Sunshine Law. The question is should the administrator be allowed to be part of the Salary Commission process or leave the process up to the Salary Commission,who should be an independent entity. When asked by Mr.Hubbard if it would be a problem for a Salary Commission member to ask Mr.Isobe to daft a resolution,Mr. Rapozo said he did not know how the information would get from the Salary Commission member to Mr. Isobe. Mr.Rapozo said his opinion was that Mr. Isobe's duties and responsibilities were not to be part of that Board of Ethics Open Session November 1, 2011 Page 8 SUBJECT DISCUSSION ACTION Commission and draft resolutions for that Commission. That Commission would have had to meet first to discuss the Mayor's letter. Tim Bynum said he had testified in person and in writing before the Salary Commission and these issues have been ongoing for a number of years. If a commission member asked Mr.Isobe or one of the Boards and Commissions staff to prepare an amendment to include what the Mayor said along with other items the Commission had under consideration that is what the staff was for—to help draft those things. Mr.Bynum did not see any difference between the Council Services staff which he uses a lot along the way. Mr.Bynum said he trusted the independence of the Salary Commission to come to their ownjudgment and understand the Sunshine Laws. That is what Mr. Isobe and his staff are for,to provide that assistance and draft those types of documents at the request of a member, whether it is the chair or an individual member,and then it goes before the board. Chair Weil said one of the problems they face was those duties are not spelled out in theirjob descriptions. Mr.Bynum asked what else were the boards and commissions' staff for and thought they were similar to the staff at Council Services. Charlie King stated he was the current Chair of the Salary Commission and said if the issue was how the resolution got drafted it was because he asked Mr.Isobe to draft it during a pre-meeting in anticipation of what had been asked for by the Mayor. Mr.King felt it would be best to present to the Commission something other than a blank piece of paper and had wanted a resolution they could all discuss and take part in. Asked the nature of the pre-meeting,Mr. King explained it was between Mr.Isobe and himself but could not remember if staff member Ms.Morikami was present. When Board of Ethics Open Session November 1, 2011 Page 9 SUBJECT DISCUSSION ACTION asked by Mr.Akamine if it was unusual for the Chair or the Salary Commission to request the Boards and Commissions Administrator to draft a resolution or a document,Mr.King said it was not unusual for him to have meetings before hand with Mr.Isobe and could not recall asking Mr. Isobe to draw up a resolution before this because it simply had not been necessary. Mr. Akamine asked if Mr.Isobe had put any pressure or exerted any undue influence on Mr.King or the Salary Commission on this resolution to which Mr.King responded no. Mr. Akamine asked if the Salary Commission acted on its own free will regarding this resolution and Mr.King said there was active discussion over the resolution so he would have to say they did. Ms. Clark asked if Mr. King felt the resolution he received was what he had discussed with Mr.Isobe;Mr.King said yes. Bill Dahle explained that there were some new members to the Salary Commission who had never gone through the Salary Commission process. According to the Salary Commission minutes of July 26,it included communications from the County Personnel Director,the Council Vice- Chair JOAnn Yukimura and the March opinion from Deputy County Attorney Mona Clark. The Chair was given the authority to set the meeting agenda and asked the Boards and Commissions Administrator to prepare a draft of a proposed resolution for that July 26 meeting. The issue about the Chair being the person in charge of arranging an agenda also extends to the Board of Ethics,the Board of Water Supply,the Board of Appeals,the Charter Review Commission,the Fire Commission,the Committee on the Status of Women,the Board of Review,the Cost Control Commission;that same responsibility is already written into their Rules. At the Salary Commission meeting on the 26h there was strong evidence that members of the Salary Commission were able to come to an agreement with several related subjects to be included in the proposed resolution that was drafted by Mr. Isobe,including one that would reco nize the Boards and Commissions Administrator,Mr.Isobe,under an Board of Ethics Open Session November 1, 2011 Page 10 SUBJECT DISCUSSION ACTION Ordinance 907 of Bill 2395,Draft 1 that was approved by the County Council and signed by the Mayor on April 25. However,no salary was established for that position;that meant by basically approving the Boards and Commissions' Administrator he goes from an executive position to become a member of this Ordinance which includes all people headed by the Mayor and appointees of the Mayor and deputies. John's position was now on that list but there was no salary assigned to it. The Salary Commission Chair led the discussion to establish a salary to be included in a formal resolution which would be submitted to the Council along with the Vice-chair who was also involved in that discussion. The Boards and Commissions Administrator, John, also suggested that several of Councilperson Yukimura's points in her letter,which was on the agenda, also be considered in assembling language for the final product for the Resolution. Essentially it improved that Resolution. At the Salary Commission meeting of August 5s'when the Resolution was finally approved,according to a draft of the minutes,the members approved the Resolution along with the changes proposed and voted upon July 26, and moved it on to the County Council as a recommendation. Once it left the Salary Commission we have had nothing to say about it and we have not had another meeting since. Asked by Mr. Akamine if in regard to Resolution 2011-1,did Mr. Dahle feel any pressure or undue pressure given by John towards him or his fellow Commissioners toward passing that Resolution,Mr.Dahle replied not at all. John Isobe stated he had submitted his written comments(which were received and ordered filed at the last meeting)and wished to clarify some points raised. Some of those points revolve around the appropriateness of how the draft resolution came into existence. Everything that Commissioner King did,as the Chair of the Salary Commission,was appropriate and correct. Under the Rules of the Salary Commission,the Chair has the authority to set the agendas and also to guide the meetings. Board of Ethics Open Session November 1, 2011 Page 11 SUBJECT DISCUSSION ACTION Commissioner King and Mr.Isobe had a conversation about how to do this especially because the Commission had not met for several months. There were also a lot of items before the Commission that needed to be considered, one of which was an ordinance that was adopted by the County Council that had placed the Boards and Commissions Administrator position onto the Salary Resolution or a future Salary Resolution. Another item in the Ordinance also adjusted the title of the former Administrative Assistant to Managing Director. Another thing that came up was the Mayor's letter and the Mayor did state and ask that his salary be frozen. One thing that has been overlooked was that the Resolution that was sent over by the Salary Commission to the County Council had a provision in it that said that the Mayor and Council,by virtue of the budget, could in fact set salaries lower than those established by the Salary Commission in their Resolution. It is important to note that the County Attorney's Office opined that was, m fact,an improper delegation of authority by the Salary Commission. When the Mayor transmitted the budget over to the County Council,he said very clearly in his budget message that he did not in fact appropriate any salary increases for his cabinet and the budget that went over did not contemplate increases for the Administration. The Council,in their adoption of the budget,did not fund increases for the Administration or for the cabinet. As a result of those two actions,Mr. Isobe determined in discussions with Commissioner King that the intent of both the Mayor and the County Council was in fact to freeze the salaries. Not because of what the Mayor had said but given the actions that were taken, Commissioner King and Mr.Isobe discussed how to present this to the body. It was decided that those salaries would be deferred. There was no undue pressure given or placed on anyone to act. The draft Resolution that was presented to the Salary Commission at the July meeting was merely that—a draft In that draft the salary for the Boards and Commissions Administrator was blank, simply because Mr. Isobe did not know what sal was su osed to be included since that salary had not been Board of Ethics Open Session November 1, 2011 Page 12 SUBJECT DISCUSSION ACTION established. It was not anyone's intention to put undue influence and/or tell them what they should be doing. The Resolution was intended to focus the discussion because there were several items that needed to be considered. The Salary Commission did not act on the resolution when it was first presented. The discussions of the Salary Commission revolved around the communications that were listed on the agenda. The draft Resolution merely consolidated the information. That Resolution was properly noticed on the August 5 agenda and the Sunshine Law was followed. In addition, every member of the County Council,the Mayor, the Prosecuting Attorney and some of the staff members were informed that this item had been placed on the agenda for discussion and decision- making. The point of raising this is about transparency. The Office of Boards and Commissions and the Salary Commission followed the Sunshine Law and in fact went beyond the requirements of the Sunshine Law to ensure that everyone was well informed. Mr.Isobe believed that the Office of Boards and Commissions,the Salary Commission,the Chair of Salary Commission Commissioner King nor he had acted improperly nor did anyone place any undue influence on anyone. The Salary Commission had full and unbridled ability to discuss this matter. Mr. Isobe stated that the Office of Boards and Commissions conducts itself no differently from the work the Council staff puts out. Mr.Isobe pointed out that he was very clear as to the role and responsibilities of the Office of Boards and Commissions and they are consistent with those responsibilities. Chair Weil felt this all came back to something he had discussed with Mr. Isobe a long time ago and that was the issue of public perception. A much better job could have been done with reference to public perception by making some of the facts clearer and better known to the public. Since there was a question of the authority of the Office of Boards and Commissions to provide an equivalent to Council Services,those duties or Board of Ethics Open Session November 1, 2011 Page 13 SUBJECT DISCUSSION ACTION responsibilities should be clarified by a proper amendment to either the job description or the description of the duties and responsibilities of Mr. Isobe's office. Mr.Isobe explained there are two parts to the duties and responsibilities. There are general duties and responsibilities outlined in the Charter. There is also an official position description for the position of Boards and Commissions Administrator. In that job description part of Mr. Isobe's responsibility, as well as the responsibility of the Office, is to provide technical support to all the Boards and Commissions. The total staff of the Office of Boards and Commissions is 5 people where Council Services have positions in the budget for 22 people. Horace Stoessel said his interest was in getting the executive salary process straightened out and he had no interest in accusing anyone of their intentions or being held accountable for some mistakes they have made. Since the first of July,the salary process has been a disaster zone. If the Mayor wanted his salary increase to be deferred,he should have asked before July 1 as that is when it went into effect. The County Attorney's Office, 7 or 8 months after the illegal provision was put in the salary resolution last November, apparently got around to telling people it was illegal. There was a lot of confusion around that...... Mr.Akamine called for a Point of Order and said this statement should relate to the agenda item for an Advisory Opinion rather than a statement regarding the process. Chair Weil overruled the Point or Order and asked Mr. Stoessel to continue. Horace Stoessel did not consider it the responsibility of the Board of Ethics Board of Ethics Open Session November 1, 2011 Page 14 SUBJECT DISCUSSION ACTION to fix the executive salary process. Mr. Stoessel was concerned that if the Board simply said to Mr. Isobe everything he did was fine the Board would be giving a blank check for a future process for which Mr.Isobe was not at all responsible. From the beginning in 2007 a kind of cozy relationship has been in place between the Mayor's Office and the Salary Commission and it began when the chief advisor to the Commission was an executive assistant to the Mayor;that was passed on to the Office of Boards and Commissions Administrator. Mr. Stoessel's said the same thing happened at the meeting of April, 2009 that happened with regard to this current resolution. Mr. Isobe prepared what he called an in-house resolution and brought it to the Board;you can read for yourself what happened after he brought it to the Board. There has been no deliberate, conscious attempt to maintain the proper separation between the Office of the Mayor and this independent board and commission and that was Mr. Stoessel's concern. Mr. Stoessel's said his interest was in getting this process straightened out and the Board can make a small contribution to that by assessing what is going on at this point where the Salary Commission and the Office of the Mayor intersect in the person of the Boards and Commissions Administrator. Chair Weil responded that Mr. Stoessel's testimony was much appreciated, however,he did not think as was suggested that whichever way the Board ruled that Mr.Isobe or the Mayor would think the Board has given them a blank check because the message has been clearly delivered. Phyllis Stoessel said when the Office of Boards and Commissions was established, it was set up to be under the section of the Charter that dealt with Boards and Commissions but it was ruled that it needed to have an administrative connection and was therefore moved to under the Mayor's Office. Mrs. Stoessel said she was very much concerned about all boards and commissions having the possibility of influence into their Board of Ethics Open Session November 1, 2011 Page 15 SUBJECT DISCUSSION ACTION independence. Mrs. Stoessel said she has commended Mr. Isobe personally and his staff for the work they do,but the possibility of putting a resolution into a commission that was already formulated before that commission had determined what it ought to be constituted interference. Ken Taylor said it was not appropriate for Mr. Isobe to write a resolution for a commission but if this was done during a period in time when the Salary Commission had not met in 9 months then there was something terribly wrong. There should have been a board meeting to discuss this and then move forward with the resolution. Boards and commissions should operate independent of the Administration and doing due diligence on activities that they are charged with. Chair Weil pointed out that was not the issue the Board of Ethics could consider. As the Board of Ethics,they could only consider whether there had been an actor omission which constituted an ethical violation. Some of the other problems that had been raised in the testimony,which were very valid,are in part the problem of the County Council. Mr.Rapozo said an obvious question he hoped one of the Board members would ask was at what point did the discussion or the intent for the resolution go from the freezing the Mayor's salary to include all the other department heads and why was that not posted on the agenda. If it had been discussed at a pre-meeting that agenda should have reflected the fact that the resolution would be discussed and the resolution would include a lot more than the Mayor's freeze;that was where the concern was. On page 8 of the August 5s'Salary Commission minutes the perception from the last statement from Mr.Isobe is `if you are in agreement with my recommendations,I will draft the Resolution prior to your signing'. If you are in agreement with my recommendations—there was a fine line between advisory and doi the recommendations and that is what this body has to Board of Ethics Open Session November 1, 2011 Page 16 SUBJECT DISCUSSION ACTION look at. At what point does the Boards and Commissions' Office offer support versus a part of the discussion, debate and in essence the actions. That statement pretty much summed it up. There were many recommendations and, in fact,they were carried through and that was Mr. Rapozo's concern. Mr. Rapozo said he would respect the Board's decision. Lonnie Sykos said the question was whether or not the process was proper and not an issue about Mr.Isobe. Is it proper for a government official to wear two hats at the same time which could be a conflict of interest? It is one thing to provide technical assistance but another to have the technical assistance start entering in to the conversation that develops policy. Bringing Administrative policy directly to the Board is not the problem. The problem is when there is a mechanism that allows political influence to enter into our Boards and Commissions with no public scrutiny and no public record. This is not personal about Mr. Isobe;he is doing his job and a goodjob of it. This is about whether the process is flawed. Pressure or undue influence is irrelevant if all of the members are either party to the violation or unaware there is a violation occurring. John Isobe stated for the record that most of the boards and commissions are appointed by the Mayor and confirmed by the Council which allows the Administrative and the Legislative branch to have a say in the selection or confirmation process. The second point is the reason the meeting for the Salary Commission was delayed was because up to that point there was an assumption that through the budget process,the salaries would in fact be established; albeit we received an opinion that could not occur. Finally,Chair King and Mr.Dahle,who are both members of the Salary Commission, stated that Mr.Isobe did not place any undue influence on the Commission. Mr.Isobe did not agree with Mr. Rapozo's interpretation of the statement excerpted from the Salary Commission minutes that it was Board of Ethics Open Session November 1, 2011 Page 17 SUBJECT DISCUSSION ACTION Mr.Isobe's intention to say the Salary Commission should adopt his recommendations. The Board needs to understand the whole picture and not take those statements out of context Chair Weil declared the hearing closed at 3:20 p.m. Mr.Perry moved that it be the decision of the Board of Ethics that Mr. John Isobe and/or the Office of Boards and Commissions did not act improperly or violate any provision of the Code of Ethics in assisting the Salary Commission with the adoption of Resolution#2011-1 as detailed in Couucilmember Rapozo's letter dated ___________________________________________________ September 27,2011._Mr. Akamine seconded the Deleted:Nk wa said he voted no because he _ ------ thought it was mishandled.¶ motion. Motioncarried4l (nay__Weil)______ ------- ----- Pen,verbatim from transcript and corrected as follows Deleted: tamahe did not rhi�awas Chair Weil: I voted no. I really think it was mishandled. mishandled. Mr.Perry: Mav we have discussion on that? Chair Weil: No. I have expressed mvself Mr.Perry: I thnk it was not mishandled. Chair Weil: Well,vou said that by making the motion. didn't vou? Thank vou. Anv further on this issue? The meeting moved on to the next business item BUSINESS BOE 2011-21 Letter dated 10/21/11 from the Office of Information Practices(OIP)requesting a detailed explanation,including any relevant legal citations, setting for the Board's position on why the Board of Ethics did not allow Mr.Rapozo to read his testimonv at the 10/14/11 meeting as detailed in Mr. Rapozo's complaint filed with OIP on 10/17/11. a.Draft letter for Board of Ethics' review and approval dated 10/23/11 from Paul Weil,Board of Ethics Chair,responding to the Office of Information Practices OIP request for a detailed explanation rey ardm Board of Ethics Open Session November 1, 2011 Page 18 SUBJECT DISCUSSION ACTION Mr. Rapozo's complaint filed with OIP on 10/17/11. b. Letter dated 10/31/11 from Deputy County Attorney Mona Clark responding to the Office of Information Practices(OIP)request for a detailed explanation regarding Mr.Rapozo's complaint filed with OIP on 10/17/11. Chair Weil said he had drafted his own response since the letter from OIP was addressed to him as Chair and submitted it to the Board for comments and to authorize Chair Weil to sign and send the response on behalf of the Board. Mr.Perry moved to approve and send Chair Weil's letter to OIP. Mr.Hubbard seconded the motion. Motion carried 5:0 Executive Mr.Perry moved to go into Executive Session Session for items ES-8: RAO 11-005 and ES-9: BOE 2011-12. Mr. Akamine seconded the motion. Councilmember Rapozo requested to address ES-8: RAO 11-005 before the Board moved into Executive Session. RAO 11-005 was placed in Executive Session by the County Attorney's Office because they ruled that Mr.Rapozo's request for an advisory opinion was in fact a complaint. Mr. Rapozo said he made it quite clear at the last meeting that he did not intend to file a complaint. To have a complaint,there needs to be a complainant. The process outlined in the Charter and the Rules of the Ethics Board requires Mr. Rapozo to fill out a complaint form before it can be a complaint. Having heard the previous discussion which was the same issue as Mr. Rapozo's that the Boardjust ruled on in Open Session,Mr. Rapozo stated he did not file a complaint. He submitted a request for an Advisory Opinion. The Board ruled through Mr.Isobe's request on the open floor and Mr.Rapozo said he would accept that ruling and stated there was no reason to move forward with the Executive Session item (RAO 11-005). For the record,Mr.Rapozo again stated he was not filing a Board of Ethics Open Session November 1, 2011 Page 19 SUBJECT DISCUSSION ACTION complaint and if the Request for an Advisory Opinion was inappropriate, he would accept that ruling and requested the Board to take no further action at this time. Chair Weil said for the record,Deputy County Attorney Mona Clark had recused herself on this issue because of a conflict of interest since she also served the Salary Commission. Counsel for the Board would be provided by Deputy County Attorney Jennifer Winn. Chair Weil told Mr. Rapozo that because of the way his letter had been phrased,even though he did not agree with it,the County Attorney had delivered the opinion that it was a complaint in the matter of substance over form. Chair Weil asked Mr. Rapozo if he was asking for his letter to be withdrawn or to have the County Attorney's Office reconsider whether or not the matter has to be heard in Executive Session as a result of the statement that Mr.Rapozo did not intend his request as a complaint against any officer or individual. Mr.Rapozo said after hearing whatjust transpired it would make no sense as he could not imagine anything being any different and disagreed that his request belonged in Executive Session. Councilmember Rapozo said he would not withdraw his request for an Advisory Opinion and if the Board wanted to go into Executive Session to respond to him on an Advisory Opinion that would be fine. Chair Weil said if it was only a request for an Advisory Opinion,the Board did not have to go to Executive Session. Deputy Attorney Winn said it was substance over form;Mr.Rapozo was not requesting an Advisory Opinion but was complaining against Mr. Isobe. Mr.Isobe then put a request for an Advisory Opinion which the Board heard in 0 en Session. At this point,the issue has been decided so Board of Ethics Open Session November 1, 2011 Page 20 SUBJECT DISCUSSION ACTION it appears Mr. Rapozo does not require any further action from this Board. Councilmember Rapozo requested that he receive a response from the Board stating there was no violation in order to close this matter out and if the Board needed to go into Executive Session to discuss that it would be fine. Since the issue was the same from the previous agenda item,Deputy Attorney Winn asked if that would suffice because Mr.Isobe did attach Mr. Rapozo's request to his own. Councilmember Rapozo said that would suffice. Mr.Akamine noted that Mr.Rapozo said he was not withdrawing his request for an Advisory Opinion but it also was not a complaint Mr.Perry said they were hung-up on whether it was an Advisory Opinion or complaint He stated it was a communication dated September 27, 2011 and asked if Mr.Rapozo wished to withdraw his communication dated September 27, 2011. Mr.Rapozo agreed to withdraw the communication dated September 27, Motion carried 5:0 2011. Mr.Hubbard moved to invite Ms. Morikami to remain for the Executive Session. Mr.Akamine seconded the motion. Motion carried 5:0 Return to Open The meeting resumed in Open Session at 3:36 p.m. Session Ratify Board of Ethics actions taken in Executive Session for items: • ES-8: RAO 11-005 • ES-9: BOE 2011-21 There were no actions taken in Executive Session. Mr. Hubbard moved to receive the letter dated Board of Ethics Open Session November 1, 2011 Page 21 SUBJECT DISCUSSION ACTION 10/21/11 from the OIP and ordered it filed. Mr. Perry seconded the motion. Motion carried 5:0 Announcements Next Meeting: Thursday,November 10, 2011 Chair Weil noted there was a question as to whether the Board needed to hold a meeting on November 10. Mr.Perry asked if the Board needed to accept Mr.Rapozo's withdrawal of his September 27h letter. Chair Weil did not think it was needed. Ms. Davis noted that Mr.Rapozo had said that a copy of the response to Mr.Isobe's request for an Advisory Opinion would suffice. Mr.Perry said if Mr.Rapozo withdrew his letter there was no response needed. Chair Weil said there was nothing further for the Board to do. Mr.Hubbard asked if they could send a copy of Mr.Isobe's Advisory Opinion as a courtesy. It was noted that since the Advisory Opinion was a public document,it could be made available upon request. As of the conclusion of this meeting,the Board had no future items for consideration in November but the window of opportunity to meet the posting date was 3 days away. Ms. Clark moved that the Board go up to the Sunshine Law posting date (November 4) to determine if a meeting was needed for November 10 and if no business was received by that date the meeting would be cancelled. Mr. Hubbard seconded the motion. Motion carried 5:0 Adjournment Chair Weil adjourned the meeting at 3:41 p.m. Board of Ethics Open Session November 1, 2011 Page 22 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.