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HomeMy WebLinkAbout2012_0713_Agenda_MeetingPacket Kurt Akamine Members: Chair Kathy Clark Calvin Murashige Mark Hubbard Brad Nagano Vice-Chair Paul Weil Warren Perry Secretary COUNTY OF KAUAI BOARD OF ETHICS NOTICE OF MEETING AND AGENDA Friday, July 13, 2012 9:00 am. 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 June 8, 2012 REQUEST FOR ADVISORY OPINION RAO 12-003 Email dated 6113112 from Councilmember KipuKai Kuall'i withdrawing his request for an advisory opinion as to whether he has a conflict of interest if he participates in County Council agenda items as relates to the Office of the Prosecuting Attorney's VOCA program, and the Office of Economic Development. Request to be resubmitted to the Board of Ethics for the August 10 meeting. DISCLOSURES for review and examination by the Board of Ethics 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 Nagano, (Fire Commission) g. Jay Furfaro (Candidate for County Council) h. Stephen Long (Historic Preservation Commission) i. Nadine Nakamura (Candidate for County Council) j. Tim Bynum (Candidate for County Council) k. Dick Chang(Candidate for County Council) I. Ross Kagawa(Candidate for County Council) in. Jo Ann Yukimura(Candidate for County Council) n. Luke Evslin (Public Access, Open Space Commission) o, Gary Hooser(Candidate for County Council) An Equal Opportunity Employer 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-17: Executive Session Minutes of June 8, 2012 ES-21: BOE 2012-15 Confidential communication from the County Attorney providing the Board of Ethic with a copy of a report raising significant concerns about potential misappropriation and use of County resources 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-, provided that if the individual concerned requests an open meeting, an open meeting shall be held; 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 11/25111 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, adopted January 13, 2012, defining the scope for an investigation into an allegation that an employee or officer of the County has improperly used county resources (ongoing) ES-3: BOE 11-004 Complaint dated 11/28111 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 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 11121'12 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. a. Resolution 2012-3, adopted March 9, 2012,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 (ongoing) 2 i P a g e Board of Ethics--July U, 2012 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, adopted March 9, 2012, 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(ongoing), ES-16: BOE 12-004 Complaint dated 5/10/12 alleging that an employee or officer of the County is improperly using County property for other than public activity or purpose(deferred 6/8/12) ES-18- BOE 12-005 Complaint dated 6/1/12 alleging that an employee or officer of the County has used discriminative and or biased decision making regarding benefits ES-19: BOE 12-006 Request from an employee or officer for an opinion from the Board of Ethics dated 6/3112 as to whether conflicts of interest exist in actions taken by another officer(s) or employee(s) of the County. ES-20: BOE 12-007 Complaint dated 6/12/12 alleging that an employee or officer of the County improperly disclosed information not available to the public and acquired in the course of their official duties RETURN TO OPEN SESSION Ratify Board of Ethics actions taken in Executive Session for items: ES-17, ES-18, ES-2, ES-3, ES-7, ES-8, ES-15, ES-16, ES-18, ES-19 and ES-20 ANNOUNCEMENTS Next Meeting: Friday, August 10, 20122 —9:00 a.m., Mo'ikeha Building, Liquor Conference Room ADJOURNMENT 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 3 1 P a g e Board of Ethics—July 13, 2012 PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior to the meeting indicating: I. 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 L-1hu'e, HI 96766 Email: bdavis@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. 4 i P a g c Board of Ethics—July 13, 2012 n ByeA��iiroused COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee BOARD OF ETHICS Meeting Date I 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 Akaminc; 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 Aka mine 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 meeting. 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 I 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 Hawaii 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- Board of Ethics Open Session June 8, 2012 Page 2 -SUBJECT DISCUSSION ACTION — 8, ES-15 and ES-16. 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 am. 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-1 Ci 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. Board of Ethics Open Session June 8, 2012 Page 3 _-SUBJECT DISCUSSION ACTION 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 County Council. (Received at the 5111/12 Board of Ethics Meeting) Mr. Hubbard moved that the Board of Ethics finds that Councilmeniber KipuKal 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 Ktial-N. As an employee of the YWCA, any money the County Council gives to the YWCA would be direct and Councilmember Kuaft'i is an employee of the YWCA. But if the Office of the Prosecuting Attorney gives discretionary money to the YWCA can Councilmember KuaIN discuss budget items concerninp,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 violatinp,relative to the YWCA if the County Council gives money directly to the YWCA where Councilmember KualN 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 bud Tet as whole. Board of Ethics Open Session June 8, 2012 Page 4 SUBJECT DISCUSSION ACTION 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 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, Board of Ethics Open Session June 8, 2012 Page 5 SUBJECT DISCUSSION ACTION Mr. Hubbard said be 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 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 Opittion 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 RACE 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 11, who filed suit against the individual Commissioners over a previous denial of a different liquor Board of Ethics Open Session June 8, 2012 Page 6 --SU-13JECT DISCUSSION ACTION 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 Honina or the individual Liquor Commissioners to hear Mr. Jasper's 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 Homna 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 Board of Ethics Open Session June 8, 2012 Page 7 SUBJECT DISCUSSION --- ACTION 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 Nagano (Fire Commission) 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 Mectin :. 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 Approved as is. Approved with amendments. See minutes of meeting. Barbara Davis XNNWMNNNNMMN� From: Kipukai Kualii Sent: Wednesday, June 13, 2012 5:13 PM To: Barbara Davis Co; Paula Morikaml; Teresa Tamura Subject: Re: Advisory Opinion Follow Up Flag: Follow up Flag Status: Flagged Please notify the Board that I request to withdraw my request for the Advisory Opinion dated 5/25/12. 1 will then, by July 30, resubmit my request with the inclusions as I have already submitted which will then be placed on the agenda for your August 10 meeting. As Long as nothing unforeseen comes up, I will plan to attend the August meeting. MAHALO 111 Sent from my Whone On Jun 13, 2012, at 1:49 PM, "Barbara Davis" <,bdavis@kauaig > wrote: 6/13/12: Hi KipuKai, I have not received your response to how you would Like the Board to handle your request for an Advisory Opinion. If I do not hear from you by 9:00 a.m. tomorrow (Thursday), I will schedule the special meeting and advise you of the date and time accordingly. Please let me know if you have any questions. Mahato, 13"b"c� The information contained in this e-mail message is intended only for the personal and confidential use of the recipient(s) named above. If you are not the intended recipient you are hereby notified that you have received this document in error and that any review,dissemination,distribution or copying of this message is strictly prohibited. If you have received this communication in error,please notify the sender(s)immediately by e-mail and delete the original message. Good Morning, As you are aware, I cannot divulge what takes place in Executive Session. I do, however, need a response from you as to whether you wish to withdraw and resubmit your request for an Advisory Opinion for the August meeting when you are able to be present. RAO 12-003