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HomeMy WebLinkAbout2012_0810_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as clarified 9/14/12 Board/Committee: BOARD OF ETHICS Meeting Date August 10, 2012 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 a.m. End of Meeting: 12:14 p.m. Present Chair Kurt Akamine; Vice-Chair Mark Hubbard; Secretary Warren Perry; Members: Kathy Clark(exited 11:11 p.m.); Calvin Murashige; Brad Nagano; Paul Weil Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura Audience Members: KipuKai Kuali'i, Councilmember; Glenn Mickens; Renae Hamilton, YWCA; JoAnn Yukimura, Council Vice- Chair; Jake Delaplane, First Deputy for the Office of the Prosecuting Attorney; Mark Marshall,Administrator with Civil Defense Agency; Ken Taylor Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Akamine called the meeting to order at 9:00 a.m. with 7 members present. Chair Akamine said if there were no objections, he would like to amend the agenda to review the Disclosures after the Executive Session out of respect for the audience members. Approval of Regular Open Session Minutes of Julyl3, 2012 Mr. Perry moved to approve the minutes as Minutes circulated. Mr. Hubbard seconded the motion. Motion carried 7:0 Request for RAO 12-005 Letter dated 7/25/12 from Councilmember KipuKai Kuali'i Advisory requesting an advisory opinion from the Board of Ethics as to whether he Opinion has a conflict of interest if he participates in County Council agenda items as it 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 VOCA program, and the Office of Economic Development of which both fund some level of the YWCA's programs. Board of Ethics Open Session August 10, 2012 Page 2 SUBJECT DISCUSSION ACTION a. Letter of testimony dated 7/31/12 from Council Vice-Chair Yukimura on whether conflicts of interest existed in actions taken by an officer(s) employees) of the County. Mr. Kuali'i provided the Board with his job description, the organizational chart for the YWCA, and a specific request regarding his participation in specific funding decisions that the County Council makes with regard to any funding that goes directly or indirectly to the YWCA. Mr. Kuali'i said the first thing he did when he got on the County Council, in addition to the required Disclosure Statement, was to send an email to all the Boards he participates on and the organizations he works with as a volunteer or employee asking very specific questions about what their relationship is with the County, whether they get any funding from the County and if they do how did that come about in the past and what they anticipate to happen in the future. When he reviewed the Code of Ethics with help from the County Attorney, Mr. Kuali'i said his interpretation was that he was not the Director of the YWCA, he was not the Executive Director, he was not on the Board, and he does not play a role in the funding decisions or the program decisions. The question would be on the three potential sources and decisions made on the funding with the Office of Economic Development, which actually provides direct funding from the OED to the YWCA for the shelter and the sexual assault programs as they have year after year, and as they do to many other different organizations. The Administration puts those amounts forward and the County Council approves, denies, or adjusts the amounts. The other two decisions in the budget are somewhat indirect. One is the Federal monies that come through the State to the Office of the Prosecuting Attorney as the Victim of Crimes Assistance grant. That grant does many different things in the Office of the Prosecutor and someone from that office could explain how it breaks down. For many years some part of that grant has gone to the YWCA. In one of the documents submitted, there is a letter to the editor Board of Ethics Open Session August 10, 2012 Page 3 SUBJECT DISCUSSION ACTION from the Board President Emiko Meyers and the Executive Director of the YWCA where they talk about the long history of the YWCA being the sole agency that meets the State's standards in providing these specialized services for the Kaua'i community. It is somewhat of a given that some funding would go to the YWCA because they are the only providers of those specific services when it comes to those grants and VOCA funding. The other grant was the SPF-SIG alcohol prevention grants that go through Theresa Koki's department for youth prevention programs, which has run its course. When the County Council looks at the decision on both of those pieces of funding, the County Council is not deciding how much money or whether they should get the money or not. The Office of the Prosecuting Attorney and the drug program go before the County Council to ask for the approval to apply for, expend and whether they can go after these funds to supplement the County's funds to provide these programs. Those are the three very specific decisions. Mr. Kuali'i has recused himself in each of those instances when the decision came up to approve those funding. Mr. Kuali'i did not believe he had to but it is the decision of the Board to tell him if he has to or not. Even if the Board says he does not have to, he may still do so because of the perception and the dark cloud that is already out there. The information is before the Board as far as what his position is. Mr. Kuali'i said he does not own the YWCA. There have been other instances that have been clearer such as Councilmember Chang who owns Wala`au Productions and contracts work to publicize County related events like the Kaua'i Marathon, which is clear and direct. Councilmember Rapozo owns MMP Investigations and had a contract where he had some work directly through the Prosecuting Attorney. Mr. Kuali'i again said he does not own the YWCA, he is not on the Board of the YWCA, he is not the Executive Director of the YWCA and he does not make any of the decisions as far as how the programs are implemented or funded. Mr. KualN works there; it is a small island and he has to work somewhere. Mr. Kuali'i stated that he loved his job on the County Council and wished he Board of Ethics Open Session August 10, 2012 Page 4 SUBJECT DISCUSSION ACTION could do that full time but there is no real job security. The YWCA has been very flexible in allowing Mr. Kuali'i to do his County Council work. His job responsibilities are in his job description and also listed in the letter from the Executive Director bulleting some of the basic facts. Mr. Weil confirmed that Mr. Kuali'i was in a management position which is the Director of Operations. Mr. Weil asked if he managed any programs that are funded in whole or in part by the County Council; Mr. Kuali'i responded no. Mr. Weil asked where the funding comes from for the activities Mr. Kuali'i manages. Mr. KualN said the YWCA is a struggling non-profit that pieces together the funding from many, many sources such as different Federal and State grants,private donations, and fund raising. Mr. Weil verified it is Mr. KualiTs statement that none of the programs he administers are funded in whole or in part through monies from the County Council. Mr. Kuali'i said from the County, no. Mr. Kuali'i said he does not actually administer programs. As the Director of Operations he handles the human resources function of hiring and assisting the supervisors that do the hiring and firing and making sure the benefits are all right. Mr. Kuali'i said the YWCA has a funding and development Director who takes care of writing the grants and working with the Board. Mr. Kuali'i said he does not work directly with the Board on programs or policy but more with the maintenance side. Mr. Weil said he shares Mr. KualiTs concern over appearances and perception. Short of requiring that he recuse himself, what can be done about those perceptions and appearances? Mr. Kuali'i said the Board's participation in looking at the facts and providing their analysis of what it all is. Mr. Kuali'i said there is no guarantee the Board would rule the way he would like them to but at least it is all out there. The newspaper published a lot of misinformation, so maybe they can put some accurate information out there. Mr. Weil said since Mr. Kuali'i has stated that he has been recusing himself and likely will recuse himself in the future, and since that has a substantial effect on public perceptions, why shouldn't he Board of Ethics Open Session August 10, 2012 Page 5 SUBJECT DISCUSSION ACTION continue to recuse himself and end all of the speculation. Mr. Kuali'i said the only reason he was before the Board is because a fellow Councilmember put the complaint forward. He probably would have continued to recuse himself and none of this would have been necessary. He had no choice but to come before the Board and give all the information. Mr. Perry said the material the Board has with which to evaluate this request is: Mr. KualiTs testimony; his July 25, 2012, letter with his written job description; a letter of clarification or position from Vice-Chair Yukimura dated July 31, 2012; a May 17, 2011, letter to the editor from the Board President and the Executive Director; a letter dated June 7, 2012, from the Executive Director of the YWCA along with their organizational chart. Chair Akamine wanted clarification that the funding for Mr. Kuali`i's position as Director of Operations does not in any part come from funds provided to the YWCA from the County. Mr. Kuali'i said that was correct. Chair Akamine asked if the programs that the County funds to the YWCA have a shortfall, would operational funds that fund his position then be used to fund those programs. Mr. Kuali`i said he would not know the answer to that question; he would have to ask the Executive Director or the Board. Chair Akamine said they also had a letter of testimony from Council Vice- Chair Yukimura. Glenn Mickens said he completely supports KipuKai and whatever his role is in the YWCA. If he has a conflict, Mr. Mickens said he was sure it was not a conflict that would give Mr. Kuali'i a personal benefit but what he does is for the benefit of the YWCA organization. Mr. Mickens said after watching Mr. Kuali'i for two years he saw nothing that he would ever do that would have an advantage for him personally. Board of Ethics Open Session August 10, 2012 Page 6 SUBJECT DISCUSSION ACTION Renae Hamilton, Director of the YWCA, referenced the written testimony from Vice-Chair Yukimura and wanted to clarify under item I on the second page where she indicates it appears possible for him to be involved in writing the VOCA grant; that it is not possible as the YWCA does not write the VOCA grant. It is not originated within our agency and never has. It always comes through the Office of the Prosecuting Attorney. From Ms. Hamilton's understanding, the process is when the Office of the Prosecuting Attorney receives whatever funding they receive they contact the YWCA Office and say they have allocated a certain amount. Ms. Hamilton directs her Chief Financial Officer to create a budget for that amount and that is all that is involved. The YWCA is not directly involved in writing any grant involving VOCA. The other clarification was the question that VOCA funding may not be the only funding the YWCA receives through the Prosecutor's Office as noted on page three. It is the only money the YWCA receives directly for direct services through the Prosecuting Attorney's Office. VOCA money is very restricted and it always has been; it is Federal money and that money is directly related to services for victims of crime. The only administration cost is a small amount for the Chief Financial Officer and the supervision which is with the Clinical Director in our organization. The Clinical Director supervises the sex assault treatment programs, the crisis programs, and the domestic violence shelter. JoAnn Yukimura said her correlating request for an investigation or at least for a decision about the conflict of interest arose because Councilmember Kuali`i did not recuse himself and did not make a request for a decision before he voted on many issues dealing with the Prosecuting Attorney's Office. Ms. Yukimura personally asked Mr. Kuali'i to recuse himself, not in the public. But when he refused to and could not produce a ruling from the Board of Ethics that is when Ms. Yukimura asked the Board to investi ate because, under the Charter, the Board is the body to make these Board of Ethics Open Session August 10, 2012 Page 7 SUBJECT DISCUSSION ACTION determinations. Ms. Yukimura said Mr. Micken's point that Mr. Kuali'i will do the very best for the YWCA is the very reason there might be a conflict of interest. It is not bad to be for the YWCA but when it might be in the interest of the YWCA to not alienate the Prosecuting Attorney because they get money from her or to not talk about the VOCA grants because of the dismissal of a VOCA counselor in which the money from that might go to the YWCA, there is a potential for a conflict of interest. Ms. Yukimura asked the Board to look at that as the Board is the only one who will give the answer. Mr. Kuali'i is a core part of the YWCA's daily operations; he is the Director of Operations. He would have concerns about the budget and in his job description he has something to do with grants. He has already said it is a struggling organization; non-profits are struggling. If they lose money from one place it is a problem for him as a Director of Operations or for the core body that oversees the operations. His work, the work of the YWCA will be affected and in that respect there is another interest he has to look out for in his work and that is not wrong. But when he is also before the Council and having to do the work of a Councilmember, there could be a conflict of interest. The Board of Ethics is the holder of the standards of ethics for this County and ethics is a slippery slope. If it is not clearly stated that you should recuse yourself and get a decision from the Ethics body before you make a decision then that needs to be clarified; there needs to be a determination before the decision. Jake Delaplane, First Deputy Prosecuting Attorney,wanted to expound on a couple of things Renae Hamilton mentioned and to verify the voice of our agency today. The VOCA funding that goes to the YWCA is severely restricted. It can only be used for very specific categories like direct victim services. Mr. Kuali'i has no involvement with that grant process. Councilmember Yukimura mentioned that it is in his job description to deal with grants but it is not about the VOCA grant. The VOCA grant comes through the Office of the Prosecuting Attorney. We handle that solely Board of Ethics Open Session August 10, 2012 Page 8 SUBJECT DISCUSSION ACTION within our agency. Ms. Hamilton stated he has no direct involvement with that; he has no involvement with those funds at all. Our grant coordinator, Jamie Chong, me and Prosecutor Iseri-Carvalho are responsible for applying for those grant funds and it is within our discretion where we send those grant funds. The YWCA is one of the agencies that we do send money to but Mr. Kuali'i's involvement with that is none. He has no involvement whatsoever. The touchstone in the Charter is that the provision is a financial interest and Mr. Kuali'i has no financial interest at all in the VOCA funding provided from the Prosecutor's Office. Mr. Weil respectfully suggested it was not just a financial interest, it goes far beyond that to any benefit and asked Mr. Delaplane not to restrict it in that fashion. Mr. Delaplane thanked Mr. Weil for that comment and said that was why he worded it as the touchstone saying he thought that was one of the central areas but obviously there are other considerations. Ms. Yukimura wanted to point out that in her first submittal to the Board she showed the VOCA grant monies that changed by decision of the Prosecuting Attorney and gave extra money to the YWCA. Through the dismissal of a VOCA position, that money doubled the money that the YWCA received. Ms. Hamilton responded to Ms. Yukimura saying that long before there was an Executive Director and through many Administrations, the YWCA received additional funding for many years. The reason they did not get other grant funding is because they have worked with the Prosecuting Attorney's Office for many years. Often, at the end of the fiscal year„ whoever was managing the grant in the Office of the Prosecuting Attorney would tell the YWCA that they had additional money that could be expended and asked if the YWCA could use the extra funding. There is a long history in YWCA books which are public record of where the YWCA Board of Ethics Open Session August 10, 2012 Page 9 SUBJECT DISCUSSION ACTION has gotten additional money through the Office of the Prosecuting Attorney VOCA funds. It is not out of the ordinary. Chair Akamine asked if the additional funding they have received through the Office of the Prosecuting Attorney was specifically for VOCA funding. Ms. Hamilton said it is VOCA funding; that is the only funding the YWCA gets through that office. Mr. Kuali'i had two comments for the Board. As far as grants at the YWCA, as a Director of Operations he is responsible for the facilities such as Camp Sloggett which is old and run down and for example had to replace the wood burning stove. In his interest in taking care of the property he may go to the fund development director and say he needs a $5,000 or $10,000 grant but that is his only involvement; not for the funding of programs and services. As far as being a core part of the YWCA in the sense of the struggling non-profit and needing funding, that is the role of the Executive Director and the Board, and perhaps the funds development. Mr. KualN plays no role in that. As an employee and as a community member Mr. Hubbard moved that the Board find that he wants all of the non-profits to be successful in finding different funding Councilmember Kuali'i does have a conflict of so they can provide the services. interest with regard to matters on the Kaua'i County Council's agenda relating to OPA VOCA funding or the appropriation to Office of Economic Development. Simultaneously seconded by Mr. Murashige and Ms. Clark. Mr. Perry asked the maker of the motion if the reason for this was based on the YWCA getting a special benefit or privilege. Mr. Hubbard responded that contrary to what Ms. Hamilton or Councilmember Kuali'i say, it is his belief that any action that the County Council takes to increase or to allow going for a VOCA grant, some of that Board of Ethics Open Session August 10, 2012 Page 10 SUBJECT DISCUSSION ACTION interest does flow to the YWCA. Even though Councilmember Kuali'i does not receive that pay, as an employee of the YWCA there is benefit; it is indirect. Mr. Hubbard said he normally is not too excited about indirect benefits but in this case Mr. Kuali'i is an employee and while he doesn't make decisions with regard to the grants, he felt there is a conflict. Mr. Weil added to those remarks that the perception given by the fact that the Councilmember is in a management type position breeds the perception in the public's mind of a conflict. The Board should protect the Councilmember and the agency against negative public perceptions; that is one of our jobs and Mr. Weil concurred with Mr. Hubbard. Mr. Perry looked at the Charter and said they were dealing with 20.02 E (uses official position to secure a special benefit, privilege, or exemption for himself or others) or 20.04 B (an elected official who possesses such interest as might reasonably tend to create a conflict with his duties or authorities). From Mr. Perry's perspective, whatever decision is made today falls in line with those two provisions: special privilege or benefit or reasonably creates a conflict of interest. It seems a little bit on the attenuated side because you have an employee, not a director as fits under our Rules, and that is what the testimony has been so far and evidence we have in our materials for today's meeting. You have an employee who is also a member of the County Council who votes on budget items for the Office of the Prosecuting Attorney. The Office of the Prosecuting Attorney, as one of its budget items, has funding to this employee's employer and none of the funding goes to this employee or the program that he supervises for his employer. If given all those facts it boils down to a special benefit or privilege or it can be reasonably interpreted as interfering with his official duties as a County Councilmember, then I am for it but I want to make sure the Board says it fits where it is supposed to fit. Board of Ethics Open Session August 10, 2012 Page 11 SUBJECT DISCUSSION ACTION Mr. Murashige said it did not bother him that Mr. Kuali'i is not a managing director. The fact that any elected official who is an employee of an organization that needs benefit is sufficient to bring it within the Code of Ethics. Mr. Murashige would not go as high as to say a director or managing director, it can just be an employee that can see a benefit indirectly going toward the company he or she works for. Mr. Weil added to Mr. Murashige's comment and pointed out that Mr. Kuali'i is more than an employee, he is a manager and he supervises programs which was the swing thing for Mr. Weil. Mr. Perry said in §20.04 B, there are three or four different things to consider. Number one: possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority. Does Mr. Kuali'i have that interest that might reasonably tend to create? Or (emphasis placed)who is an owner, officer, executive director or director of an organization and Mr. Perry did not think they had that as Mr. Kuali'i is an employee. That is for the first part. Or (emphasis placed)whose member of his immediate family, which includes parents, siblings, spouse or children, is an owner, officer executive director or director of an organization. Mr. Kuali'i just being an employee falls under the first portion of that provision. The real determination is as an employee, does he possess such interest as might reasonably tend to create a conflict with his duties or authority. If it is all of the members' positions that reasonably tend to create a conflict, then Mr. Perry would not have a problem but from his perspective that is a little attenuated. Chair Akamine asked for clarification that Mr. Perry was saying as an employee that he may receive a benefit or may benefit. Mr. Perry said no; if they were going to go under that provision that Mr. Kuali'i possesses or has ac uired such interests as might reasonably tend to create a conflict Board of Ethics Open Session August 10, 2012 Page 12 SUBJECT DISCUSSION ACTION with his duties or authority as a Councilmember, given all the discussion, Roll Call: Clark—Aye; Hubbard—Aye; Mr. Perry thought that was where the Board was at. Maybe not a special Murashige—Aye; Nagano—Aye; Perry—Aye; privilege or benefit under 20.02 but just a conflict under 20.04 B. Weil—Aye; Akamine - Aye Motion carried 7:0 The maker of the motion and the Board concurred to clarify the motion by adding a comma between OPA and VOCA and qualify that the conflict exists as it relates to the YWCA. RAO 12-006 Letter dated 7/24/12 from Mark B.L. Marshall, administrator with the Kaua'i Civil Defense Agency, requesting an advisory opinion as to whether he has a conflict of interest if he teaches courses for the University of Hawai'i's National Disaster Preparedness Training Center for the County of Kaua'i professionally. Mark Marshall said his job title was Emergency Management Officer for the Agency of Civil Defense. He is a permanent civil servant with the County of Kaua'i and has been in that position since January 2000. These courses have been taught, not by him, to the County of Kaua'i in the past. Carl Kim, the Director of the National Disaster Preparedness Training Center, asked Mr. Marshall to be an instructor. Mr. Marshall has taught this course nationally which is a cadre of courses he is certified to teach given his expertise in emergency management. As an employee, when he does teach for the County he takes vacation for that time period so as not to be paid by two sources. Mr. Marshall said he was asking for an opinion from the Board that he could continue to teach these courses to the County of Kaua'i. Mr. Hubbard asked if Mr. Marshall was an exempt salaried employee for the County. Mr. Marshall said his status is an exempt manager 5 (EM 5) which allows him to receive overtime. The only thing that requires his exemption is under Civil Service rules overtime is voluntary; in his case it Board of Ethics Open Session August 10, 2012 Page 13 SUBJECT DISCUSSION ACTION is not voluntary and he can be disciplined for not accepting overtime. He is paid overtime. Mr. Hubbard noted that Mr. Marshall had taught courses nationally and asked if he had not taught courses before to the County employees. Mr. Marshall said on August 3 he taught social media in disaster preparedness and response to the County professionally. He received permission from his supervisor and disclosed he would be taking vacation for that day. They routinely have offerings such as this and the Plans and Operations Officer, Elton Ushio, is the one that advertises the courses to the County staff. The delivery to the participants is free. These are FEMA (Federal Emergency Management Administration) monies that go to the consortium at the University of Hawai'i. Mr. Hubbard asked if Mr. Marshall also took vacation when he taught the courses nationally. Mr. Marshall said yes. Mr. Hubbard asked if he paid on his own to be certified to do this training. Mr. Hubbard said you take the basic course through the University of Hawai'i and pass with a score high enough to warrant certification as an instructor and then you teach back that course. They are always taught in cadres of two instructors and you get evaluated and then certified. Mr. Hubbard asked if Mr. Marshall could teach the course as a County employee and not take vacation. Mr. Marshall said he assumed he could do that. Mr. Hubbard asked if he were paid overtime would he be paid more than he gets from UH. Mr. Marshall said no; deliveries are typically 8 hours so there is rarely any overtime involved. Mr. Perry asked who taught the course on August 3, 2012. Mr. Marshall said Bert Lum and he taught the course and Mr. Marshall took vacation that day under a contract with the University of Hawai'i. Mr. Perry said relative to it being a possible conflict, it might be retroactive to August 3rd. Mr. Marshall said correct and the Administration advised him to get this Board's deliberation on a possible conflict of interest. Chair Akamine asked Mr. Marshall if his credentialing to teach these Board of Ethics Open Session August 10, 2012 Page 14 SUBJECT DISCUSSION ACTION classes was because of his employment with the County of Kaua'i. Mr. Marshall said the selection is based on his lifelong training and experience so it is certainly the 12 years he has spent on Kaua'i and the 16 years on the Big Island as an Ocean Safety Administrator. All of the experience certainly did weigh into getting the job. Chair Akamine asked who initiates the requests when these classes are offered. Mr. Marshall responded that it is Elton Ushio and he advertises the courses to County employees and then Federal, State, and then non-governmental and volunteers. Chair Akamine asked who decides where the classes are held. Mr. Marshall said the venue is the conference room in the Civil Defense Office. Chair Akamine asked if it was part of Mr. Marshall's job duties or responsibilities to teach the classes. Mr. Marshall said no. Mr. Hubbard moved that Mr. Marshall does not have a conflict of interest if he teaches courses for the U.H. to the County of Kaua'i so long as he is on vacation or in some other way excused. Mr. Weil seconded the motion with the proviso that it read that"we find that". Mr. Hubbard restated the motion that this Board finds that Mr. Marshall does not have a conflict if he teaches courses for the U.H. National Disaster Preparedness Training Center for the County of Kaua'i so long as he takes vacation when he does Chair Akamine said if Mr. Marshall's employer is the County of Kaua'i, as so. Mr. Weil seconded the motion. an employee of the County, his interest outside of that employment is benefited and is it a similar situation that was voted on in the prior Request for an Opinion because there is some benefit. Mr. Murashige said the Board has had cases before where employees have outside jobs and as long as County equipment is not utilized and it did not conflict with the person's duties it was not a problem. Mr. Murashige said he saw this different from what was discussed earlier. Board of Ethics Open Session August 10, 2012 Page 15 SUBJECT DISCUSSION ACTION Mr. Hubbard said one could try to connect those or say there is some interest but Mr. Marshall does not have to do this. An opportunity was given to him to train and it was based on the experience he gained while employed at the County but he could have said no. Mr. Weil felt this enhanced the service to the community. Chair Akamine said if Mr. Marshall's employment with the University of Hawai'i pays more according to what he disclosed and that same class can be taught in his capacity in the County of Kaua'i, there is a potential personal benefit by this outside employment. In a matter of procedure, Chair Akamine said he did not give the public the opportunity to provide testimony on this. Ms. Clark stated she did not get the connection between the two things at all. His job is not teaching this course and to be consistent in where the Board has found other employees can have outside work that is unrelated to what they are doing and they do it while they are off work then there is no conflict. Chair Akamine said one's duties as an employee of the County may include teaching a course,which that employee is qualified to do so,but he chooses not to do it through the County employer but rather through the State. Ms. Clark said the County did not ask him to do that; the U.H. did. Chair Akamine asked if it cost the County anything for Mr. Marshall to teach these classes. Mr. Marshall said it does not and added that as soon as he was hired by U.H. he disclosed that to the Civil Service Administrator because that is what the rules say but he does not disclose his farming activity because that is self-employment and he does not have to disclose himself as his own employer when he does his farming. When he works Board of Ethics Open Session August 10, 2012 Page 16 SUBJECT DISCUSSION ACTION professionally there is a proviso that he needs to disclose to the employer through the Civil Service Administrator which was done as soon as he was hired. Under 20.02 A, B, C, D, or F using County property, gaining a special benefit, receiving a gift that may tend to influence his actions, disclosing information, Mr. Perry did not think that Mr. Marshall's situation fit into any of those categories. Mr. Perry did not see any action that Mr. Marshall had taken based on any interests he might reasonably tend to have which may tend to create a conflict and speaks in favor of the motion that there is no conflict on the part of Mr. Marshall. Motion that there is not a conflict of interest carried 7:0 Business BOE 2012-15 Memorandum dated 7/16/12 from Council Chair Jay Furfaro requesting the Board of Ethics to conduct an investigation of the P.O.H.A.K.U. Program County Council Open Session Minutes and other resource information on file with the Office of Boards & Commissions) Glenn Mickens was asked by Walter Lewis to read testimony supplemental to his August 1 and 8 written pieces of testimony. The Charter says it is the function of the Board to investigate complaints of violations of the ethics code. There is a vital difference between a request where no assertion is made about whether a violation has occurred and a complaint that does make such an assertion. This has the earmark of an election year vendetta and unless and until the County Council provides the Board with a document that clearly meets the legal standards of a complaint, Mr. Lewis urged the Board to suspend the investigation that has been initiated on the POHAKU program. Mr. Mickens felt there was definitely politics involved here and said he did not think anyone disagreed that this was not a good program. Mr. Weil moved to receive the written testimony of August 1 and 8, 2012, from Mr. Lewis. Mr. Mr. Hubbard said he was going to carefully word his request that Mr. Perry seconded the motion. Motion carried 7:0 Board of Ethics Open Session August 10, 2012 Page 17 SUBJECT DISCUSSION ACTION Mickens reassure Walter Lewis that it is Mr. Hubbard's opinion that there is no investigation of POHAKU that was initiated at the request of the County Council. Ken Taylor said he was completely confused in light of Mr. Hubbard's statement. The agenda item lists a memorandum dated 7/16/12 requesting an investigation of the POHAKU program which is different from what was just stated. Chair Akamine said the agenda items states a memo was received from Council Chair Furfaro requesting the Board investigate but there has been no decision whether that investigation will take place or not. Mr. Taylor asked if the document stated in Mr. Lewis's document was incorrect that in May there was a request. Chair Akamine said there was a request but no decision has been made as to the action to be taken on that request. Mr. Taylor asked if the Board had not been granted Special Counsel to represent them on this matter. Chair Akamine said the Board has not made any decision on this item. Mr. Taylor said he too was concerned because the Charter says it is the function of the Board of Ethics to investigate complaints, violations of the ethics code. Back in May the Board was asked to investigate the POHAKU program. That is a far cry from the request to investigate a complaint of a violation. You should stop this action until a complaint of a violation is filed. Mr. Taylor said it is his understanding that the Board has been given Special Council to deal with this matter; if that is the case, it is his understanding that the Prosecutor's Office does not have Special Counsel to defend themselves in this matter and nothing more should be done until Special Counsel is also given to them. This action should be stopped until a complaint of violation has been filed. Jake Delaplane echoed the concerns Mr. Mickens read into the record that was raised by Walter Lewis. One of the things the Board has to look at is roceduraIly whether this type of request from the County Council is the Board of Ethics Open Session August 10, 2012 Page 18 SUBJECT DISCUSSION ACTION proper way of initiating action from this body. An investigation by this body is triggered by a complaint that is filed and there is a process the Board goes through. Questions have been raised as to whether there is something already going on and Mr. Hubbard made a very careful statement that there is no investigation into the POHAKU program that was initiated by the County Council. That decision is before the Board today to make a decision on whether there is to be an investigation that was initiated by the County Council. There was a press release from the County Attorney, Al Castillo, which seemed to insinuate that there was already an investigation underway by this body into the POHAKU program. Right or wrong, Mr. Castillo has made that statement in the public. Complaints to this body, until they are acted upon, are confidential and not provided to anyone that there is a complaint that exists out there. The way this comes through is unprecedented in this sort of manner; you have a request from the County Council to conduct an investigation without a complaint even being filed. There is no allegation of a violation of any particular section of the Charter. It has been stated publically by the County Attorney that there is an investigation that is ongoing but that investigation is proceeding through its due course. To adopt this today and to take action to initiate another investigation would be duplicative to the effort that is already ongoing. Mr. Weil said to be sure the record is clear and Mr. Delaplane's understanding is clear, this body can also initiate an investigation without a formal complaint. Mr. Perry said the Board has the authority to investigate complaints, also to initiate complaints. As far as the Charter goes a minor technicality not to initiate investigations. The Board can initiate complaints; the Board can investigate complaints but not so sure about initiating investigations. If information comes before this body that affects what the Board's authority is, they can initiate a complaint, they can investigate that information. Board of Ethics Open Session August 10, 2012 Page 19 SUBJECT DISCUSSION ACTION Mr. Delaplane said that was his initial reading of it but he did not believe there was evidence contained within the communication from Council Chair Furfaro although there were attachments to that communication. Attorney Clark said if the Board proceeds to investigate or to initiate a complaint, the matter would have to be considered in Executive Session. Mr. Hubbard moved to receive the memorandum dated 7/16/12 from Council Chair Furfaro. Mr. Perry seconded the motion. Motion carried 7:0 Executive Deputy County Attorney Mona Clark read the Session Hawai'i Revised Statutes as described on the agenda that would take the Board into Executive Session for items ES-14, ES-24, ES-25, ES-2, ES-3, ES-7, ES-8, ES-15, ES-16, ES-19, ES-20 and ES-22. Recess called at 10:27 a.m. Meeting called back to order at 10:34 a.m. Mr. Perry moved to go into Executive Session at 10:35 a.m. Mr. Murashige seconded the motion. Motion carried 7:0 Return to Open The meeting resumed in Open Session at 12:10 Session p.m. Ratify Board of Ethics actions taken in Executive Session for items: ES-14, ES-24, ES-2, ES-3, ES-7, ES-8, ES-15, ES-16, ES-19, ES-20, ES- 22, and ES-25 Mr. Hubbard moved to ratify the Board's actions taken in Executive Session. Mr.Nagano seconded the motion. Motion carried 6:0 Mr. Hubbard moved to request County Attorney Clark prepare the Advisory Opinions for Mr. Board of Ethics Open Session August 10, 2012 Page 20 SUBJECT DISCUSSION ACTION Kuali'i(RAO 12-005)and Mr.Marshall(RAO 12- 006). Mr. Perry seconded the motion. Motion carried 6:0 Disclosures a. Jo Shimamoto (Salary Commission) b. Kai Lawrence (Deputy Prosecuting Attorney) c. Charles Foster(Deputy Prosecuting Attorney) Mr. Hubbard moved to defer the review of Disclosures to the September meeting. Mr. Murashige seconded the motion. Motion carried 6:0 Discussion was held on whether further action for BOE 2012-15, Memorandum dated 7/16/12 from Council Chair Furfaro was warranted. Chair Akamine asked this item be placed in Executive Session for September to determine if further action is required. Announcements Next Meeting: Friday, September 14, 2012—9:00 a.m., Mo'ikeha Building, Li uor Conference Room Adjournment Chair Akamine adjourned the meeting at 12:14 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Kurt Akamine, Chair ( ) Approved as is. O Approved with amendments. See minutes of meeting.