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HomeMy WebLinkAbout2012_0210_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 3/9/12 Board/Committee: BOARD OF ETHICS Meeting Date February 10, 2012 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 a.m. I End of Meeting: 10:17 a.m. Present Chair Kurt Akamine; Vice-Chair Mark Hubbard; Members: Kathy Clark; Calvin Murashige; Brad Nagano; Paul Weil Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Councilmember Tim Bynum Excused Secretary Warren Perry Absent SUBJECT DISCUSSION ACTION Call To Order Chair Kurt Akarnme called the meeting to order at 9:00 a.m. with a quorum of 6 members resent. Approval of Regular Open Session Minutes of January 13, 2012 Mr. Hubbard moved to approve the minutes as Minutes circulated. Mr. Nagano seconded the motion. Motion carried 6:0 Communication BOE 2012-04 Memorandum dated January 5, 2012, from Jay Furfaro, Council Chair, regarding Possible Conflict of Interest with the Planning Commission Mayoral Appointee Jan Kimura Mr. Hubbard moved to receive the communication and order it filed. Mr. Nagano Mr. Hubbard said Mr. Furfaro had noted there may a possible conflict of seconded the motion. interest but he did not state that he would recuse himself or would not discuss the matter. Chair Akamine said Councilmembers obligation was to disclose whether they recuse or not. Mr. Hubbard said the Charter states that if you disclose there is a possible conflict of interest then you must recuse yourself. Ms. Morikami advised the Board that she was present at that meeting and Mr. Furfaro did recuse himself from this matter. Board of Ethics Open Session February 10, 2012 Page 2 SUBJECT DISCUSSION ACTION Mr. Murashige said this communication was after the fact. Council had already acted upon the nomination. Mr. Hubbard noted that Jan Kimura was a landscape contractor for the Princeville Community Association of which Jay is a member. If Jay was a member of the Board there might be some issue but if he was just a member of the Association there should not be a conflict but that was for him to disclosure. Motion carried 6:0 Request for RAO 12-001 Letter dated 1/30/12 from Councilmember Tim Bynum Advisory requesting an opinion from the Board of Ethics as to whether conflicts of Opinion interest exist with his,participation in Council budget hearings that relate to funding for the Office of the Prosecuting Attorney, the annual budget which would include funding for the Office of the Prosecuting Attorney and other matters that appear on the Council agenda that involve the Office of the Prosecuting Attorney Councilmember Bynum stated that he likes being a public official and there are public records which illustrate that for more than 3 years Mr. Bynum has had concerns about the Victim Witness Program and changes that happened there. The public record will show there has been a concerted effort to keep Mr. Bynum from having discussions on these concerns using the rationale of the Sunshine Law. The Office of Information Practices offered an opinion that Mr. Bynum should have been allowed to have his discussion. Prior to being elected Prosecuting Attorney, the current Prosecutor was a Councilmember who repeatedly had intense dialogue in every aspect with the then Prosecutor about the operation of their office. That is the Council's responsibility and a routine that Councilmembers perform,particularly when there are concerns expressed by members of the community. Last month there was an agenda item about Victim Witness which resulted in 3 challenges from Councilmembers, one of which has an Board of Ethics Open Session February 10, 2012 Page 3 SUBJECT DISCUSSION ACTION active contract with the Prosecutor and another who works for the YWCA and is a recipient of these particular funds, about Mr. Bynum's conflict of interest. The County Attorney met with those individuals and said Mr. Bynum did not have a conflict of interest. The Prosecutor came onto the floor and told Council that she had sent them a letter just a few minutes ago about a conflict that Councilmember Bynum had but Mr. Bynum was not copied on that letter. Mr. Bynum went into session with the County Attorney who advised that Mr. Bynum did not have a conflict in their opinion but it was up to Mr. Bynum. In an over abundance of caution, Mr. Bynum told the Council he would not participate on that agenda item but did not want this to set a precedent since it was his belief that there was no conflict. The 3 page letter from the Prosecuting Attorney basically said because the Prosecutor was criminally prosecuting Mr. Bynum for alleged zoning violations that involved having a rice cooker on the counter of his family room, he could not speak at the Council. It also made unfounded allegations about conversations,which were hearsay and misconstrued, that Mr. Bynum had with two people he had known for many years. Mr. Bynum did not think he had any conflict of interest and he did not think a Prosecutor could bring charges on a Councilmember and then say they could not speak on agenda items involving the Prosecutor's office. Mr. Bynum pointed out he is held accountable because everything he does and says is on public record. The voters of Kaua'i can determine if Mr. Bynum's demeanor or questions are out of line or if he has some ulterior motive. Mr. Bynum said his motives are pure and he continues to have serious concerns about changes that he thinks are not in compliance with State law about the County's to provide outreach to all victims of crime, not just the ones the Prosecutor chooses to prosecute. Mr. Bynum said he would like to participate in the budget process that is coming up along with any other items that come forward regarding the Office of the Prosecutor. He thought he had demonstrated that he does that with respect and calm and reasonable dialogue expected from public officials. Mr. Bynum thanked the Board of Ethics Open Session February 10, 2012 Page 4 SUBJECT DISCUSSION ACTION Board for their consideration. Mr. Weil asked if there had been any other incidents where the Prosecuting Attorney has filed claims, whether justified or not, against other Councilmembers and, if so, was there any indication such prosecution was being used to prevent those people from participating in Council decisions. Mr. Bynum said it was very tempting to go into that area but he did not see that as an agenda item. This situation is over 2 years old and it was after the Planning Department had looked at the same violations and said no violation occurred that the Prosecutor filed these 4 charges. Mr. Bynum said he was not aware of other members of the County Council being similarly charged. Mr. Hubbard asked Deputy Attorney Clark if she could confirm what the County Attorney advised Councilman Bynum at that Council meeting. Attorney Clark thought that §20.04 of the Kaua'i County Charter was put into place to address financial interests. However, it was broad enough that it could also deal with bias or prejudice as a result of a personal relationship. The standard, legally, for bias and prejudice on a personal level is pretty high because in politics there is a lot of animosity. Basically it is not the type of thing where the Councilperson acquired the interest, which is what we have here. The Councilperson has a duty to represent his constituency unless there is a reason for him to recuse himself. Reasonable minds could disagree that this is not the situation where recusal is required Mr. Hubbard moved that the Board find that but it is a judgment call which has to be made by the Board of Ethics. Councilman Bynum could participate in and vote on matters that appear on the County Council agenda that involve the Office of the Prosecuting Attorney, which should answer all 3 questions in his request for an Advisory Board of Ethics Open Session February 10, 2012 Page 5 SUBJECT DISCUSSION ACTION Opinion. Mr. Murashige seconded the motion. Mr. Murashige said when they deal with conflicts of interest, the Code of Ethics was fairly specific in terms of what the Board's responsibility was but it should be more of a personal matter where that person had to decide whether or not he could be fair and unbiased. If he could, he should be able to participate unless there was a challenge raised by someone else that he recuses himself. The basic belief has to be: can I be fair? Can I be impartial? Can I do what I am supposed to do? The fact that everything would be done publically should also be a check against someone using his or her position in government to gain a particular advantage. Chair Akamine raised the question of whether the motion should include that the Board finds no conflict of interest. Mr. Hubbard did not want to say it was not a conflict because something else could come up that was closely related that created a conflict but, under these circumstances now Mr. Bynum could participate. Attorney Clark asked if the Board wanted to specify that there was no conflict of interest based on the misdemeanors that had been filed against Mr. Bynum by the Prosecutors Office which was the issue before the Board Mr. Weil moved to amend the motion to provide now that based upon the information available and the filing of the misdemeanor complaints that there was no conflict of interest. Mr. Hubbard seconded the motion. Motion carried 6:0 on the amended motion. Motion carried 6:0 on the original motion as amended. Chair Akamine suggested the order of the agenda be amended to go into Executive Session to accommodate a member of the public and then return Board of Ethics Open Session February 10, 2012 Page 6 SUBJECT DISCUSSION ACTION to Open Session to review the Disclosures. Mr. Hubbard moved to amend the agenda to go into Executive Session. Mr. Murashige seconded the motion. Motion carried 6:0 Executive Deputy County Attorney Clark cited the Hawai'i Session Revised Statutes that would take the Board into 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-6: Executive Session Minutes of January 13, 2012 Pursuant to H.R.S. §92-4 and H.R.S. 92-5 (a) (2) and(4), the purpose of this executive session is to consider the evaluation, dismissal or discipline of an employee or officer of the County in which charges have been alleged against an employee or officer where consideration of matters affecting privacy will be involved 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-2: BOE 11-003 Letter dated 11/25/11 requesting the Board of Ethics to initiate an investigation into an allegation that an employee or officer of the County has improperly used County resources a. Resolution 2011-1 defining the scope for an investigation into an allegation that an employee or officer of the County has improperly used county resources (ongoing) Board of Ethics Open Session February 10, 2012 Page 7 SUBJECT DISCUSSION ACTION ES-3: BOE 11-004 Complaint dated 11/28/11 alleging that an employee or officer of the County has improperly disclosed information and used their position to secure a benefit, privilege or exemption for themselves or others a. Resolution 2011-2 defining the scope for an investigation into a complaint alleging that an employee or officer of the County has improperly disclosed information and used their position to secure a benefit,privilege or exemption for themselves or others (ongoing) ES-7: BOE 12-001 Complaint dated 1/12/12 alleging that an employee or officer of the County is operating a private business in conflict with their position with the County of Kaua'i. ES-8: BOE 12-002 Letter dated 2/1/12 requesting the Board of Ethics to initiate an investigation into an allegation that an employee or officer of the Coun . has improperly used CogM prope!V for other than public activity Mr. Hubbard moved to go into Executive Session or purpose at 9:24 a.m. Mr. Murashige seconded the motion. Motion carried 6:0 Return to Open The meeting resumed in Open Session at 10:07 Session a.m. Disclosures a. John Lydgate (Public Access & Open Space Commission) b. Paula Morikami (Administrator, Office of Boards & Commissions) c. Clifford Nakea(Liquor Control Commission) d. Charles King (Salary Commission) e. Donald Okami (Police Commission) £ Jan Kimura(Planning Commission) g. Russell Kyono (Board of Review) h. Calvin Murashige (Board of Ethics) i. Hartwell Blake (Planning Commission Board of Ethics Open Session February 10, 2012 Page 8 SUBJECT DISCUSSION ACTION j. Gary Pacheco (Liquor Commission) k. Jesse Fukushima (Fire Commission) 1. Sandra Sterker (Cost Control Commission) m. Arryl Kaneshiro (Cost Control Commission) n. Catherine Adams (Civil Service Commission) o. Carol Suzawa(Charter Review Commission) Mr. Murashige moved to receive disclosures a. though o. and deem them complete. Ms. Clark seconded the motion. Motion carried 6:0 Ratify Board of Ethics actions taken in Executive Session for items: ES-2, ES-3, ES-6, ES-7 and ES-8 Mr. Hubbard moved to ratify the actions taken in Executive Session. Mr. Murashige seconded the motion. Motion carried 6:0 Announcements Next Meeting: Friday, March 9, 2012—9:00 am Adjournment Chair Akamine adjourned the meeting at 10:17 a.m. Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Kurt Akamine, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.