HomeMy WebLinkAbout2011_1101_Agenda_MeetingPacketSP 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 SPECIAL MEETING AND AGENDA
Tuesday, November 1, 2011
2:00 p.m. or shortly thereafter
Mo'ikeha Building, Liquor Conference Room 3
4444 Rice Street, Lihu'e, HI 96766
CALL TO ORDER
REQUEST FOR AN ADVISORY OPINION
RAO 11-006 Request 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. (Deferred from
10/141111 meeting)
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 any 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 9/27.122.
BUSINESS
BOE 2011-21 Letter dated 10121/11 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 testimony at the 10,`14/11 meeting as detailed in
Mr. Rapozo's complaint filed with OIP on 10/171/11.
a. Draft letter for Board of Ethics' review and approval dated 10,123/11
from Paul Well, Board of Ethics Chair, responding to the Office of
Information Practices (OIP) request for a detailed explanation
regarding Mr. Rapozo's complaint filed with OIP on 10x`17/11.
An Equal Opportunity Employer
EXECUTIVE SESSION
Pursuant to H.R.S. §92-4 and H.R.S. 92-5 (a) (2) (4) (8), the purpose of this executive session is
to consider the evaluation, dismissal or discipline of an employee or officer of the County
relating to a complaint filed against the employee or officer, to deliberate or make a decision
upon a matter that requires the consideration of information that must be kept confidential
pursuant to a state or federal law, or a court order and to consult with the Board's legal counsel
on issues pertaining to the Board'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-8: RAO 11-005 Request for an opinion from the Board of Ethics as to whether conflicts of
interest exist in actions taken by an officerts) or employee(s) of the
County.
Pursuant to Hawaii Revised Statutes §§92-4 and 92-5 (a) (4) the purpose of this executive
session is 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-9: BOE 2011-21 Letter dated 14121/11 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 testimony at the 10/14/11 meeting as detailed in
Mr. Rapozo's complaint filed with OlP on 10/17/11.
RETURN TO OPEN SESSION
Ratify Board of Ethics actions taken in Executive Session for items:
o ES 8: RAO 11-005
o ES 9: BOE 2011-21
ANNOUNCEMENTS
Next Meeting: Thursday, November 10, 2011 —9:00 a.m., Mo'ikeha Building, Liquor
Conference Room ')
ADJOUR-LAMENT
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
2 1 P
Board of Ethics—November 1, 2011
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 position 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.
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
Uhu'e, HI 96766
Email: bdavis ctkauaigov
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
Board of Ethics— November 1, 2011
Barbara Davis
From: Bruce Pleas
Sent: Tuesday, October 04, 2011 10:04 AM
To: Barbara Davis
Cc: Beth Tokioka,- Diane Zachary
Subject: 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
RAO 11 -006
C LE
`ut
October 21, 2011
BOARDS & COMMISSIONS !
The Honorable Paul Weil, Chair
&Members of the County of Kauai Board of Ethics
c/o Office of Boards &Commissions
4444 Rice Street,Suite 150
Lihu'e, HI 96766
Dear Chair Weil and Members of the County of Kaua'i Board of Ethics:
SUBJECT: REQUEST FOR BOARD OF ETHICS ADVISORY OPINION
At its meeting on October 14, 2011, the Board of Ethics deferred agenda item 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 and
Commissions Administrator and the Kaua'i County Charter duties and responsibilities of
the Salary Commission", to a special meeting with the date and time to be established by
the Office of Boards and Commissions after consultation with all the Board members.
Having been present at the meeting, it is my understanding that the Board's decision to
defer this agenda item was based on the legal guidance and advice from Deputy County
Attorney Mona Clark' that Councilmember Rapozo's request was improper and should
have been filed as a complaint rather than as a request for an advisory opinion.
Ms. Clark cited Rule 5 (a) ADVISORY OPINION of the Kauai County Board of Ethics Rules
and Regulations- Part 1, which reads:
"(a) Applicability. Advisory opinions may be requested by officers
or employees to assist them in the proper performance of their official
duties and responsibilities in accordance with the Code of Ethics."
(Emphasis added)
Ms. Clark advised the Board that Councilmember Rapozo's request was not intended to
assist him in the proper performance of his official duties and responsibilities but rather
questioned the actions of the Boards and Commissions Administrator, the Mayor, and the
Members of the Salary Commission. Therefore, this matter should have been filed as a
complaint pursuant to Rule 6 of the Kauai County Board of Ethics Rules and Regulations -
Part 1.
' Kauai County Charter-Article XIII County Attorney
Section 8.04 Powers Duties and Functions. The county attorney shall be the chief legal advisor and legal
representative of all agencies, including the council,and of all officers and employees in matters relating to their
official powers and duties,and he shall represent the county in all legal proceedings. He shall perform all other
services incident to his office as may be required by law.
C? 11-007
The Honorable Paul Weil, Chair
&Members of the County of Kaua'i Board of Ethics
Page 2
October 21, 2011
Ms. Clark further opined that because proper notice was not provided to those individuals
who were named in Councilmember Rapozo's letter, there would be "a violation of due
process" if the Board of Ethics proceeded to deliberate and act on Councilmember Rapozo's
request for an advisory opinion.
I would like to point out that even if this procedural flaw is corrected as advised by Deputy
County Attorney Clark, someone publicly released a copy of Councilmember Rapozo's letter
to the media immediately after it was filed with the Office of Boards and Commissions as
evidenced by the The Garden Island Newspaper front page article that was published on
September 28, 2011 and posted on its website on September 27, 2011 (See Exhibit A). For
this reason, my right to confidentiality was already breached2 even prior to the Board
making this item public via the posting its October 14, 2011 meeting agenda pursuant to
the State Sunshine Law, Chapter 92, Hawaii Revised Statutes.
Based on the above and to expeditiously resolve the issues raised in Councilmember
Rapozo's letter of September 27, 2011 (attached as Exhibit B), I would like to request that
the County of Kaua'i Board of Ethics render an advisory opinion on whether, 1,as Boards
and Commissions Administrator and/or the Office of Boards and Commissions acted
improperly or violated any provision of Article XX, Code of Ethics, Kauai County Charter,
and Chapter 3,Article 1, Code of Ethics, Kaua'i County Code, in assisting the Salary
Commission with the adoption of Resolution No. 2011-1.
Thank you for your timely consideration of this request.
Sincerely,
Job Administrator
Office of Boards and Commissions
copy: Mayor Bernard P.Carvalho,Jr.
Gary Heu,Managing Director
Alfred B.Castillo,Jr.,County Attorney
Salary Commission Members
Councilmember Mel Rapozo
2 Kauai County Board of Ethics Rules and Regulations—Part 1
"6.1 COMPLAINTS INSTITUTED BY A MEMBER OF THE PUBLIC
(d) Open Session, The respondent may request that the hearing be held in open session. Otherwise,
the hearing shall be held in closed session,"
Leo Azambu a - The Garden Island Posted: Tuesday,
September 27, 2011 11 :45 pm (7) Comments
i
Dennis Fujimoto/The Garden Island
Kauai County Council Chair Jay Furfaro calls the first
meeting of the council in the renovated chambers at the
Historic County Building,Tuesday afternoon.
Councilman Rapozo files ethics complaint
Leo Azambuja - The Garden Island
I_IHU'E — Kauai County Councilman Mel Rapozo on Tuesday afternoon filed a complaint with
the county Board of Ethics, requesting an advisory opinion on the actions of Boards and
Commissions Administrator John Isobe and the county Salary Commission.
"I would request that the County of Kauai Board of Ethics render an advisory opinion on
whether any of the actions taken by the Salary Commission in adopting Resolution No. 2011-1
contain conflicts of interest between the administration and Salary Commission," Rapozo said
in the complaint.
Rapozo said Commission Chair Charles King had asked Isobe to submit prior to the July 26
commission meeting a draft of Resolution 2011-1. The resolution was adopted during the
commission's Aug. 5 meeting.
At the July 26 commission meeting there was also a request by Mayor Bernard Carvalho Jr.,
dated July 15, to defer his salary raise which took effect July 1.
Also on the agenda that meeting was Ordinance 907, which incorporated Isobe's position under
the commission's salary-setting authority.
Exhibit A
Rapozo said rather than independently establishing the basis for its salary-setting decisions in
public meetings, the commission "appears to be functioning as an arm of the mayor's
administration."
Since the commission's authority includes elected and appointed officers in the administration,
Rapozo questioned if there is a conflict of interest for having Isobe draft a salary resolution to
the commission with no prior guidance from such commission, rather with information and
guidance reflecting the administration's salary-setting objectives — including Carvalho's July 15
request to defer his July 1 raise.
A second concern puts in question a potential conflict of interest in the relationship between
Boards and Commissions and the Salary Commission — the resolution also incorporated a
salary schedule for Isobe.
Exhibit A
COUNTY COUNCIL OFFICE Of THE COUNTY CLERK
JAY IFLRFARO.CHAIR Divisfoo
MANN A. YUKIMURA. VICE CRAIR Elections Division
TIM SYNUM PETER A. INAKAIMURA, County Clerk
DICXIE CHANG EDUARDO TOPENIO.JR.. Deputy County Clerk
KIPUKAI KUALI*I
NADINE K. NA"MURA 0 Telephone: f$08}241-4188
MEL RAPOZO 43%RICE STREET. SUITE 209 Facsimile: Mg)241-6349
LIMPE. ICALWI. HAWAVI %766
E-mail.cokcouncilakAttai.gov
September 27, 2011
S& 272011
The Honorable Paul Weil, Chair
& Nlembers,of the County of Kaua'i Board of Ethics BOARDS&COMMLS NS
c/o Office of Boards &Commissions
I I1.1 Rice Street, Suite 150
Llhu'e, HI 96766
Dear Chair Weil and members of the County of Kauai Board of Ethics:
SUBJECT: REQUEST FOR BOARD OF ETHICS ADVISORY OPINION
During the Kauai County Council's("Council's") deliberations, on the County of
Kauai Salary Commission's("Salary Commission's") Resolution No. 2011-1, questions have
been raised in testimony about whether conflicts of interest exist with the role of the
Boards& Commissions Administrator("Administrator")and the Kaua'i County Charter
("Charter') duties and responsibilities of the Salary Commission.
In the case of Salary Commission Re-solution No. 2011-1 ("Resolution No. 2011-11,
the public record of the Salary Commission's consideration and adoption of Resolution No.
2011.1 indicates that the Administrator was asked to submit a proposed draft of Resolution
No. 2011-1 at the request of the Salary Commission Chair before the July 26, 2011, Salary
Commission meeting. Resolution No. 2011-1 was subsequently adopted at the Salary
Commission's August 5, 2011. meeting. It was also noted in testimony that the Salary
Commission had not met since November 2010.
At this same July 26, 2011, meeting a request by Xtayor Bernard P. Carvalho. Jr.,
dated July 15, 2011, to defer his salary increase scheduled to have taken effect on July 1.
2011 (as previously authorized by Salary Commission Resolution No. 2010-1) was on the
Salary Commission's agenda for discussion. Also on the Salary Commission's July 26, 2011,
agenda was Ordinance No. 907 (listed as Bill No. 2395, Draft 1, A Bill for an Ordinance to
Amend Chapter 3, of the Kaua'i County Code 1987, as Amended. Relating to the Salaries of
County Officers and Employees), which had incorporated the Administrator's position
under the Salary Commission's salary—setting authority,
Kaua'l County Charter,Section 29.03. Resolution.The commission's salary findings shall he adopted by
resolution of the commission and forwarded to the mayor and the council on or beloreSlarch 15.Subject to
Section 29 05.the resolution shall take effect without the mayors and council's concurrence sixty days after its
adoption unless rejected by a vote tit not le.4s than five members or the council. The council may reject either the
entire re4oluotin or any portion of tt,The resperrive appointing authority may qet the salary of anappotnter at a
figure lower than the figure established by ordinance for the position.
AN FQVAL OPPORTUNITY WMPLOYFA RAO 11-0055
Exhibit B
September 27, 2011
Page 2 of 2
Testimony submitted to the Council during its discussions on Resolution No. 2011-1
raised concerns on whether the actions taken by the Salary Commission might involve
various conflicts of interest.
First, rather than independently establishing the basis of its salary—setting
decisions in public meetings, the Salary Commission appears to be functioning as 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 a draft of Resolution No. 2011-1 to the Salary Commission with
information and guidance reflecting the Administration's salary—setting objectives
(including the Mayor's July 15, 2011, request to defer his July 1, 2011, salary increase) with
no prior guidance from the Salary Commission would involve a conflict of interest.
Second, the appearance of a conflict 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 at the request
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 of Kaua'i Board of Ethics render an advisory opinion on whether any of the
actions taken by the Salary Commission in adopting Resolution No. 2011-1 contain conflicts
of 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 timely consideration of this request.
Sincerely,
'&r2r
Mel Ra�pozo
Councilmember
copy: Councilmembers
Office of Boards & Commissions
Mayor Bernard P. Carvalho, Jr.
Alfred B, Castillo, Jr., County Attorney
I Kaua'i County Charter.Section 20.05 D. It shall be the function*[the board:
(2)To render advisory opinions or interpretations with respect to application of the code on request.All
requests for advisory opinions shall be answered within forty five(45)days of its filing and failure to submit an
advisory opinion within said forty five(45)days shall be deemed a finding of no breach of the code.Opinions
rendered or deemed rendered shall be binding on the board in any subsequent charges concerning the officer or
employee of the county until said opinion is amended or revoked by the board.
Exhibit B
BM5861412 10:35:45 10-21-2011 2!3
NEIL ABERCROMME
GiWERNOP STATE OF HAWAII
BRAN S C HATZ OFFICE OF THE LIEUTENANT GOVERNOR CHEftYL 9AKAZJ PARK
UEUTENANT COVERNOR OFFICE OF INFORMATION PRACTICES
NO- 1 CAPITOL DISTRICT BUILDING
250 SCtjJT4 HOTEL STREET,SUITE 107
HONOLULU HAWAYI 95813
7elepl,,Dne: (908i�586-1466 FAX: (808)586-1412
E-MAIL:
WVVW_1-A--Wi0v—ccvlolp
October 21, 2011
VIA FACSIMILE: 808-241-5127
Mr. Paul Weil, Chair
Kauai County Board of E'thics,
Re: Request for Investigation (S INVES-P 12-5)
Dear Chair Weil:
The Office of Information Practices(OIP) has received a complaint from Councilmember
Mel Rapozo concerning the County of Kauai Board of Ethics' (the Board)meeting,held on
October 14, 2011. Specifically,Mr. Rapozo asks whether the Board violated part I of chapter
92, Hawaii Revised Statutes(the Sunshine Law),by not allowing him to read his testimony at the
meeting. A copy of Mr. Rapozo's complaint is enclosed for your information,
We ask for your assistance in our review of this complaint. Please provide us with a
detailed explanation, including any relevant legal citations,setting forth the Board's position on
this matter and any other ;information you deem relevant to this inquiry. We request that the
Board provide this response to OIP no later than ten business days from receipt of this letter.
Thank you for your attention to this matter. If you have any questions or would like to
discuss this matter,please do not hesitate to contact the undersigned attorney.
Very truly yours,
ln44— /alf1f,?"-
Loma L. Aratani
Staff Attorney
LIA:drris
Enclosure
cc: The Honorable Mel Rapozo,Councilmember (w/o enclosure)
BOE 2011-21
mM5861412 �oa5:Ss 10-21-2011 3o
October I7, 2QlI
Office mf Information Practices
No. l Cupinm|District Building
25O South Hotel Street, Suite 107
Honolulu, Ill 0G8l3
He: Complaint vf Sunshine Law 'Vlomdun
To Whom, It May {baneru:
I am filing this complaint as an individual member of the Kaua'i County Council. 1
previously served 3 terms nm the Kaom'i County Council from 2UO2'28A8. and was elected to
my A"u term inthe 2010 election,
Atao open County of0�zou'i Board mf Ethics meeting on October 14, 2011, lwas
prevented from providing public testimony noa properly posted agenda item regarding
events that transpired at� m Special County Council Meeting mo September 2?. 20ll. The
posted agenda item was a communication from myself to the Board of Ethics requesting an
advisory opinion on a possible conflict of interest involving the Boards and Commissions
Administrator. After the Roll Call and before ozy item was called, Deputy County Attorney
Mona Clark advised the Board of Ethics that if they allowed me to testify on the posted
item, they would be in violation of the Kaua'i County Charter and subject to sanctions.
After much debate and discussion, noy written testimony was received however T was not
allowed to present my testimony, even after I informed them that I felt that the Sunshine
Law was 6eima violated. One of the Board members actually asked rne why l6a|t that I
needed to read my testimony as they had already received it in writing. The Board
eventually decided to defer the item to a future special board meeting of which a date was
not dismlosmd' l was never allowed to present ruytestimony.
l have enclosed the October l4. 2Ull Board oY Ethics agenda, ao well uomy written
testimony that was received by the Board of Ethics. Within my testimony you will find
other potential violations of the Sunshine Law that occurred at the July 26, 2011 Kmna'i
Salary Commission meeting and I may be submitting a separate complaint regarding those
violations at a later date. A video of the October 141h meeting will be available at the end of
this week.
Io all zoy years of serving uothe Kaoa'i County Council, I have never witnessed a
County Attorney, or Deputy County Attorney, attempt tu quell public testimony during a
zueetio�. I find tb� tubeextr*u�e}vdi disruptive and disturbing. l believe that this��asu
flagrant violation mf the Sunshine Law and request a review 6y your office.
Please feel free to contact roe at(8O8) 645-Q248if you have any questions, nrifyou
require further information.
Sincerely,
&8elRapmco
Cooncilmemler
PAUL M. WEIL
P.O. Box 218
Anahola, HI 96703
Phone: (808) 821-1288
Fax: (808) 8214299
email: nmwIL&,bawan.rr.com,
October 23, 2011
Office of Information Practices DRAFT
No. I Capitol District Building
250 South Hotel Street, Suite 107
Honolulu, Hawaii 96813
Attention: Loma L. Aratani, Staff Attorney
Re: Request for Investigation (S INVES-P 12-5)
Dear Ms. Aratani:
I write in response to your letter to me dated October 21, 2011 in the above-captioned
matter.
I have read and reviewed Mr. Rapozo's Complaint letter and note that he has omitted or
misconstrued a number of salient points:
1. The Board has only six duly appointed and acting members. Of these, only four were
present at the meeting, providing a quorum to meet but insufficient to move to
Executive Session and insufficient to take actions on some of the matters on our
published meeting notice and agenda.
2. Even though Deputy County Attorney Mona Clark had advised the Board that
allowing Mr. Rapozo to testify would be a violation of the County Charter, the Board
voted to receive Mr. Rapozo's written testimony. In other words, he was not denied
the opportunity to provide a statement in support of his request and his position.
3. As Chair, I made the decision to decline to allow Mr. Rapozo to read his testimony
aloud, The Board members present had all acknowledged receiving and reading his
testimony. I had publicly thanked Mr. Rapozo for providing his testimony in advance
and in writing. There were citizens present regarding another agenda matter. It did
regarding
not appear that there would be any constructive or useful benefit to be had from Mr.
Rapozo reading aloud the testimony we had already read and formally received and
was now part of the public record.
BOE 2011-21 a
4. Further, the notice of meeting included a reference to the Board's rules which provide
in relevant part: "The length of time allocated to persons wishing to present verbal
testimon-v may be limited at the discretion of the chairperson or presiding member
I reasonably exercised that discretion since Mr. Rapozo's written testimony had
already been formally received by the Board as part of the record; no action could be
taken on his request at the meeting; and we had agreed to defer this matter to a
special meeting to provide Mr. Rapozo a proper opportunity for his matter to be
considered and acted upon.
5. We could not announce the new date at that time but asked Staff to check with the
absent members of the Board regarding their availability as well as the availability of
a meeting room. We also asked staff to avoid Wednesdays in order to accommodate
Mr. Rapozo, since that is the day the County Council holds its regular meetings. To
try to set the deferred meeting without these actions would likely be an exercise in
futility.
Every effort has been made to give Mr. Rapozo every proper opportunity. The
deferred meeting has now been set for Tuesday, November I at 2:00 p.m. This date
appears to be a date when, I understand, most of the members of The Board could be
available.
I submit that there is no real substance to this Complaint for the reasons set forth above.
Please contact me if you have further questions regarding this matter.
Sincerely,
PAUL M. WEIL
PMW:om
cc: Board of Ethics members
Mona Clark
Jolmlsobe
Councilman Mel Rapozo