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HomeMy WebLinkAbout2012_0309_Agenda_MeetingPacket Kurt Aka mine Members: Chair Kathy Clark Calvin Murashiae Mark Hubbard Brad Nagano Vice-Chair Paul Weil Warren Perry Secretary COUNTY OF KAUA'I BOARD OF ETHICS NOTICE OF MEETING AND AGENDA Friday, March 9, 2012 9:00 a.m. or shortly thereafter Mo'ikeha Building, Liquor Conference Room 3 4444 Rice Street, L-ihu'e. HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of February 10, 2012 COMMUNICATION BOE 2012-05 Memorandum dated February 14, 2012, from Nadine Nakamura, Councilmember, regarding Possible Conflict of Interest with County Council agenda item C 2012-54 (Relating to the Grant of a Pedestrian Access Easement and Cancellation of Portion of Easement 16) DISCLOSURES for review and examination by the Board of Ethics a. Gary Nelson(Deputy Prosecuting Attorney) b. Ricky Watanabe (County Clerk) c. Mel Rapozo (Candidate for County Council) d. Kipukai KuaIT'i (Candidate for County Council) e. Alfredo Nebre (Police Commission) f Craig De Costa(Board of Review) g. Paul Weil (Board of Ethics) EXECUTIVE SESSION Pursuant to Ha-vvai'i Revised Statutes §§92-4 and 92-5 (a) (4), 92-9 (a)(I-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-9: Executive Session Minutes of February 10, 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 affectinc,privacy will be involved and to consult with the Board's legal counsel on issues An Equal Opportunity Employer 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 Z-� has improperly used County resources a. Resolution 2011-1, adopted January 13, 2012, defining the scope for an investigation into an allegation that an employee or officer of the County zl.� has improperly used county resources (ongoing) 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, adopted January 13, 2012, defining the scope for an investigation into a complaint alleging that an employee or officer of the t:, 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 1/112/12 alleging that an employee or officer of the County is operating a private business in conflict with their position with the County of Kauai. a. Resolution 2012-3, defining the scope for an investigation into a complaint alleging that an employee or officer of the County 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 County has improperly used County property for other than public activity or purpose a. Resolution 2012-1 amending 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 and or County property for other than public activity or purpose ES-10: BOE 12-003 Complaint of Harassment against an employee or officer of the County RETURN TO OPEN SESSION Ratily Board of Ethics actions taken in Executive Session for items: ES-9, ES-2, ES-3, ES-7, ES-8 and ES-10 P Board of Ethics—March 9, 2012 ANNOUNCEMENTS Next Meeting: Friday, April 13, 2012 —9:00 a.m., Moikeha Building, Liquor Conference Room 3 ADJOUIZNMENT NOTICE OF EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92-7 (a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92-4 and shall be limited to those items described in HRS §92-5(a). c: Mona Clark, Deputy County Attorney PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior to the meeting indicating: 1. Your name and if applicable, your 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_IQ: Board of Ethics Attn: Barbara Davis Office of Boards & Commissions 4444 Rice Street, Suite 150 Uhu'e. HI 96766 Email: bdavis(- ,(t�),kauai.gov Fax: 241-5127 Phone: 241-4919 SPECIAL ASSISTANCE If you need an alternate format or an auxiliary aid to participate, please contact the Boards & Commissions Support Clerk at 241-4919 at least five(5)working days prior to the meeting. 3 1 Pa - e al Board of Ethics--March 9, 2012 � � '� ll � �� �rou�d COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Cominittee: BOARD OF ETHICS Meeting Date I February 10, 2012 Location Mo'ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 an,_ End ot`Meeting: 10:17a.m. Present Chair Kurt Akarnme; 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 Morik,ami,- Councilmember Tim Bynum Excused Secretary Warren Perry Absent SUBJECT DISCUSSION ACTION Call To Order Chair Kurt Akamine called the meeting to order at 9:00 a.m. with a quorum of 6 members resent Approval of J�e _prcsi Minutes grnk��ession Minutes of January 13, 2012 Mr. Hubbard moved to approve the minutes as circulated. Mr. Nagano seconded the motion. Motion carried 6:0 Corninunication BOIL 2012-04 Memorandum dated January 5. 2012, from Ja y Furtfaro --—----- Council Chair, _regarding Possible Conflict of Interest with the Plannina C ommissio,nA4"ral App( inte,e Jan Kimura Mr. Flubbard moved to receive the communication and order it filed. Mr. Nagano Mr. I lubbard said Mr. Furtaro had noted there may a possible conflict of seconded the motion. interest but lie did not state that he would recuse himself or would not discuss the matter, Chair Akarnine 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. Board of Ethics Open Session February 10, 2012 Page 2 SUBJECT DISCUSSION ACTION Ms. Morikami advised the Board that she was present at that meeting and Mr. Furfaro did recuse himself from this matter. Mr. Murashige said this communication was after the fact. Council had already acted upon the nomination. Mr. I-lubbard 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 R O 12-001 better dated 1/30/12 from Councilinember Tim Bynum Advisory rccc tita an o ailiar� [ om the .3caaa d of Ethics as to whether conflicts of Opinion interest exist with his e to f'undir1g for the Office of the Prosecuting Attornev, the annual budget which yowl include f mdin) fg1,the Office of the Prosecuting Attorney and other matters that appear on the Council agenda that involve the Office of the i Prosectitng ttcar 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 r risibility and a routine that Councilmembe c rlorm,particularly Board of Ethics Open Session February 10, 2012 Page 3 SUBJE`CT DISCUSSION ACTION 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 Council members, one of which has an 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 fLw minutes ago about a conflict that Councilmember Bynum had but Mr. Bynum was not copied on that letter, N/Ir. Bynum went into session with the County Attorney who advised that Mr. Bynum did not have a conflict in their opinion but it was Lip to Mr. Bytium. 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 lie did not think a Prosecutor could bring charges oil.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 pore 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 ..p osecute. Mr. Bynum said he would like to participate in the budget Board of Ethics Open Session February 10, 2012 Page 4 SUBJECT DISCUSSION ACTION ------------------ process that is coming up along with any other items that come forward regarding the Office of the Prosecutor. Ile thought he had demonstrated that he does that with respect and calm and reasonable dialogue expected from public officials. Mr. Bynum thanked the Board for their consideration. Mr. Weil asked if there had been any other incidents where the Prosecuting Attorney has filed claims, whetherjustified or not, against other Councilmembers and, it'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. I lowever, 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 but it is a call which has to be made by the Board of Ethics. Mr. Hubbard moved that the Board Find that Board of Ethics Open Session February 10, 2012 Page 5 SUBJEC � DISCUSSION ACTION --—— . r.__. n_.W.__--- � --- ------______�. � _._. 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 Opinion. Mr. Mr. Murashige said when they deal with conflicts of interest, the Code of Murashige seconded the motion. 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 1 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. I lubbard 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 C'lai-k asked if the Board wanted to specify that there was no conflict of interest based on the misdemeanors that had been filed against Mr. Bym m by the Prosecutors Office which was the issue before the Board now Mr. Weil moved to amend the motion to provide that based upon the information available and the filing of the misdemeanor complaints that there was no conflict of interest. Mr. I-lubbard seconded the motion. Motion carried 6:0 on the Board of Ethics Open Session. February 10, 2012 Page 6 SUBJE C DISCUSSION ACTION ION amended motion. Motion carried 6:0 on the original motion as amended. ("hair tlkamr_ne suggested the order of the agenda be amended to go into Executive Session to accommodate a member of the public and then return 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 I lawai`i Session Revised Statutes that would take the Board into Executive Session. Pursuant to Ilawai`i Revised Statutes §§92-4 and 92-5 (a) (4), 92-9 (a)(14) (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, ininiunities, 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 II.R.S. §92-4 and 11.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: BO f 11 003 Letter dated 11/25111 r e(itiestin-,,the Board of Ethics to Board of Ethics Open Session February 10, 2012 Page 7 SUBJECT DISCUSSION ACTION initiate an'. officer of the Ctjpty_hAs� o _mp r_ used Count pgly im,_ ___ a. Resolution 2011-1 defining,the scope for an investigation into an 411cm,tion j that art employee or officer of the County has improperly used ES-3: B( H-004 Cot pAjtqint dated 11128/11 alleging that an employee -or officer of the County has improperly disclosed information and used tbcjj_p) ifion to secure a benefit, privilege or exemption for themselves or others a. Resolution 2011-2 detinim-Y the scope for an investigation into a e�(2", hujit-W disclosed information and used their position to secure a benefit, privilege or exemption for themselves or others (on loin)) 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 ,1.1()si ion with the County of Kaua'i. ES-8: BO E 12-002 Letter dated 2/1/12 requesting the Board of Ethics to initiate an invesfiVition into aqaIlqgation that an employee or officer of the _-Cpgrity h ix r d County property for other than public activity Mr. Flubbard moved to go into Executive Session at 9:24 a.m. Mr. Murashige seconded the motion. —------ ------- Motion carried Return to Open The meeting resumed in Open Session at 10:( Session a.m. ---—--__-—----- Disclosures a. John L _(Public Access & pci�j_Sp ace Commission} Board of Ethics Open Session February 10, 2012 Page 8 SUB EC DISCUSSION ACTION b. Paula Morikami (Administrator, Office of Boards & Commissions) c. Clifford Nakea(Liquor Control Commission) d. Charles King (Salary Commission) c. Donald 0kanii (Police Commission) f. Jan Kimura(Planning Commission) g. Russell Kyoao (Board ol'Review) h. Calvin Murashige (Board of Ethics} i. Hartwell Blake (Planning Commission) j. Gary Pacheco (Liquor Commission) k. Jesse Fukushinia (Fire Commission) 1. Sandra Sterker (Cost Control Commission) in. 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 ot'Ethics actions taken in Executive Session for items: ES-2, ES-3, 1?S-6, ES-7 and ES-8 Mr. Hubbard moved to ratify the actions taken in Executive Session. Mr. Murashige seconded the Motion carried 6:0 Announcements Next Meeting_ March 2012 -9:00 am Adjournment Chair Akainine aqjourned 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. COUNTY a t � OFFICE OF THE COOT\ Y CLERK Jav Furfaro,Chair ' JoAim A, Yukimura.Mice Chair f�� Ricky Watanabe.County Clerk- Tim BNnum Jade K. Fountain-Tanigawa,Deputy County Clerk Dickie Chang ` KipuKai Kuali' Bpi Telephone( 0 )241-41 SS Nadine K. Nakamura OF Fax (SOS)241-6349 1vSe1 Rapozo Email cokcouneil��kauai.�c�i� Council Services Division 4390 Rice Street,Suite 209 Ll u'e.Kauai,Hawai'i 9616 � 52 MEMORANDUM tl € February 14, 2012 BOARDS &C11 ) 1t-,.) To: Jay Furfaro; Council Chair and Members of the Kauai County Council From: Nadine K. Nakamura, Councilmember Re: Possible Conflict of Interest C 2012-54 (Relating to the Grant of a Pedestrian Access Easement and Cancellation of Portion of Easement 16) Pursuant to Section 20.04(B) of the Kauai County Charter, Section 3.19 of the Kauai County Code, and Rule 8 of the Rules of the Kauai County Council, I hereby provide written disclosure on the record of a possible conflict of interest relating to C 2012-54 because my husband, Galen Nakamura, provided legal consultation on this issue to the parties involved in this matter. For this reason, I am recusing myself from discussing or participating in the decision making regarding C 2012-54. If you have any questions, please contact me. Thank you for your attention to this matter. GG ds cc: February 29, 2012 Council Meeting Agenda Office of the Boards of Commissions Board of Ethics Gary 11eu, Managing Director B 0 E 2-01 2-5 All EQUAL OPPORTUNITY EMPLOYER