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HomeMy WebLinkAbout2012_0608_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 7/13/12 Board/Committee: BOARD OF ETHICS Meeting Date June 8, 2012 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 a.m. End of Meeting: 11:22 a.m. Present Chair Kurt Akamine; Vice-Chair Mark Hubbard; Secretary Warren Perry; Members: Brad Nagano; Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura Excused Members: Kathy Clark; Calvin Murashige; Paul Weil Absent SUBJECT DISCUSSION ACTION Call To Order Chair Akamine called the meeting to order at 9:00 a.m. and declared that if there were no objections he would like to change the order of the agenda to go into Executive Session immediately following the approval of the Minutes to accommodate testifiers present at the meetin . Approval of Regular Open Session Minutes of May 11, 2012 Mr. Perry moved to approve the minutes. Mr. Minutes Hubbard seconded the motion. Mr. Perry questioned why the vote listed for the motion to receive the communications on page 3 was shown as 4:0 when only 1 Board Member had exited the meeting at that point. Ms. Davis noted that subsequent votes reflected 6 members voted and so it would appear that 4:0 was a typographical error. Mr. Perry moved to accept the minutes with a correction showing the vote as 6:0. Mr. Hubbard seconded the motion. Motion carried 4:0 Executive Session Deputy County Attorney Mona Clark read the Hawai'i Revised Statutes as described on the agenda that would take the Board into Executive Session for items ES-14, ES-2, ES-3, ES-7, ES- 8, ES-15 and ES-16. Board of Ethics Open Session June 8, 2012 Page 2 SUBJECT DISCUSSION ACTION Mr. Hubbard moved to go into Executive Session at 9:10 a.m. Mr. Perry seconded the motion. Motion carried 4:0 Return to Open The meeting resumed in Open Session at 10:45 Session a.m. Ratify Board of Ethics actions taken in Executive Session for items: ES- Mr. Hubbard moved to ratify the actions taken by 14, ES-2, ES-3, ES-7, ES-8, ES-15 and ES-16 the Board in Executive Session for those items as listed. Mr.Nagano seconded the motion. Motion carried 4:0 Communications BOE 2012-13 Memorandum dated May 7, 2012, from Nadine Nakamura, Councilmember, regarding a Possible Conflict of Interest for the Mayor's Office—Boards and Commissions Budget(All Line Items) in Bill No. 2431 BOE 2012-14 Memorandum dated May 9, 2012, from JoAnn Yukimura, Council Vice-Chair, regarding a Possible Conflict of Interest with the "Boys and Girls Club—Waimea" Line Item Contained in "Special Projects" (account No. 001-0101-512.35-00) in Bill No. 2431 Mr. Hubbard moved to receive and file the communications. Mr. Perry seconded the motion. Motion carried 4:0 Request for an RAO 12-003 Letter dated 5/25/12 from Councilmember KipuKai Kuali'i Advisory Opinion requesting an advisory opinion from the Board of Ethics as to whether he has a conflict of interest if he participates in County Council agenda items as relates to the YWCA of which he is an employee as well as to recent and future budget matters involving the Office of the Prosecuting Attorney's VOCA program, and the Office of Economic Development of which both fund some level of the YWCA's programs. a. Letter dated 5/8/12 from KipuKai Kuali'i noting his intent to request an advisory opinion and copies of his Conflict of Interest notification to the Board of Ethics Open Session June 8, 2012 Page 3 SUBJECT DISCUSSION ACTION County Council. (Received at the 5/11/12 Board of Ethics Meeting) Mr. Hubbard moved that the Board of Ethics finds that Councilmember KipuKai Kuali'i does have a conflict of interest if he participates in County Council agenda items as relates to the YWCA and he does not have a conflict of interest in matters involving the Office of the Prosecuting Attorney's VOCA program. Mr. Perry seconded the motion. Mr. Hubbard feels that the VOCA program is a second step away from Councilmember Kuali'i. As an employee of the YWCA, any money the County Council gives to the YWCA would be direct and Councilmember Kuali'i is an employee of the YWCA. But if the Office of the Prosecuting Attorney gives discretionary money to the YWCA can Councilmember Kuali'i discuss budget items concerning the Office of the Prosecuting Attorney. That is one step beyond as it is the Prosecuting Attorney making the decision and therefore it is not a conflict. Mr. Perry asked what provisions of the Charter or Code of Ordinances would Councilmember Kuali'i be violating relative to the YWCA if the County Council gives money directly to the YWCA where Councilmember Kuali'i is an employee. Mr. Hubbard cited the first sentence of Section 20.04 B, who possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority. He should recuse himself from his duties and authority to discuss or vote on the line item involving monies from the County to the YWCA since he is an employee, but he should be able to vote on the budget as a whole. Attorney Clark responded to Mr. Perry's question that there could be a couple of sections implicated such as Section 20.04 B which has already Board of Ethics Open Session June 8, 2012 Page 4 SUBJECT DISCUSSION ACTION been mentioned but also Section 20.02 E as to whether he is using his official position to get a special benefit for himself or others. When the Board responds to any request, if it is done solely on the information transmitted by the person, the Board has to be careful to tailor their response to respond only to what is being asked and to make it clear in the opinion as to what the Board is addressing. Mr. Hubbard said the hope of doing an opinion is to give guidance so the Attorney advising the County Council can say something at that time (during the budget hearings) rather than addressing that question after the fact. Attorney Clark said in past County Council budget proceedings, it was made very clear in Open Session what procedure was being followed and if there was a line item conflict that person would recuse themselves. Obviously they cannot recuse themselves from the entire budget and no one has recused at the departmental level. That was on the advice of the County Attorney and the Councilmembers left the Council Chambers if an item they were involved in was raised on a line item basis; they did not participate in any discussion or have any influence over it. Other questions can arise as far as budget issues such as the potential for a situation where funds from one operating item get transferred to some other entity in which there might be other issues involved other than a line item issue. It might have broader impacts and whether the Board addresses that in the Advisory Opinion or separately, they need to be very clear about what they are doing. Mr. Hubbard said he would like to be somewhat broad in the wording on any County Council agenda items as relates to the YWCA. File Note: Track on flash drive quit recording at this point. Further Board of Ethics Open Session June 8, 2012 Page 5 SUBJECT DISCUSSION ACTION minutes are a compilation of notes from the meeting) Motion failed 2:2 (nays: Perry; Akamine) Mr. Perry said he did not know the aspect of Section 20.02 E on line items. Under Section 20.04 B he did not think there was a conflict with the YWCA or the Office of the Prosecuting Attorney. Mr. Hubbard moved to defer the Request for an Advisory Opinion to the next meeting. Mr. Perry seconded the motion. The 45 day timeline to render an opinion does not allow for deferring the Motion failed 3:1 (nay: Akamine) request. Mr. Hubbard moved that the Board ask Councilmember KipuKai Kuali'i to withdraw his request and resubmit it for the August meeting when he can be present to answer questions. Mr. Perry seconded the motion. If Councilmember KipuKai Kuali'i does not wish to withdraw and resubmit his request, the Board will need to schedule a special meeting before the end of June. Motion carried 4:0 RAO 12-004 Letter dated 5/23/12 from Deputy Attorney Mauna Kea Trask as legal counsel for the Liquor Control Commission ("Commission") on whether there is a conflict of interest for the Commission or Commissioners to consider and take action on a new liquor application from James Jasper II, who filed suit against the individual Commissioners over a previous denial of a different liquor application. Mr. Hubbard moved that the Board of Ethics issue an Advisory Opinion stating they do not find a conflict of interest for the Liquor Commission, Director Honma or the individual Liquor Commissioners to hear Mr. Jasper's Board of Ethics Open Session June 8, 2012 Page 6 SUBJECT DISCUSSION ACTION request on a new liquor application and it would not be proper for individuals to recuse themselves voluntarily from hearing the new application. Mr. Perry seconded the motion. Attorney Clark cautioned the Board that it had jurisdiction over whether there was a violation of the Code of Ethics. If an action did not constitute a violation of the Code of Ethics, and the action was not alleged to be a violation, it was outside the Board's jurisdiction. Mr. Hubbard said it would not be proper for the Commissioners to recuse themselves for the reasons listed in the request but they could recuse themselves for other conflicts. Mr. Hubbard withdrew his original motion and made a new motion that the Board of Ethics issue an Advisory Opinion stating they do not find a conflict of interest for the Liquor Commission, Director Honma or the individual Liquor Commissioners to hear Mr. Jasper's request on a new liquor application. Mr. Perry withdrew his original second to the motion and seconded the new motion. Motion carried 4:0 Mr. Hubbard moved that County Attorney Clark draft the Advisory Opinion on behalf of the Board of Ethics. Mr. Perry seconded the motion. Motion carried 4:0 Disclosures a. Shaylene Iseri-Carvalho (Candidate for Prosecuting Attorney b. Jane Gray(Historic Preservation Commission) c. Danita Aiu (Historic Preservation Commission) d. Benjamin Lizama, Jr., (Board of Review) e. Jimmy Miranda(Fire Commission) f. Michael Na ano Fire Commission Board of Ethics Open Session June 8, 2012 Page 7 SUBJECT DISCUSSION ACTION g. Jay Furfaro (Candidate for County Council) Mr. Hubbard moved to defer review of the Disclosures to the July meeting. Mr. Perry seconded the motion. Motion carried 4:0 Announcements Next Meeting: Friday, July 13, 2012—9:00 a.m. Adjournment Chair Akamine adjourned the meeting at 11:22 a.m. Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Kurt Akamine, Chair O Approved as is. ( ) Approved with amendments. See minutes of meeting.