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HomeMy WebLinkAbout2012_1012_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 11/16/12 Board/Committee: BOARD OF ETHICS Meeting Date October 12, 2012 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 9:00 a.m. End of Meeting: 11:00 a.m. Present Vice-Chair Mark Hubbard; Secretary Warren Perry; Members: Kathy Clark; Brad Nagano Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Deputy County Attorney Mauna Kea Trask; Lt. Robert Craddick, Kaua'i Fire Department Excused Chair Kurt Akamine; Calvin Murashige; Paul Weil Absent SUBJECT DISCUSSION ACTION Call To Order Vice-Chair Hubbard called the meeting to order at 9:00 am with a quorum of 4 members present Approval of Regular ar Open Session Minutes of September 14, 2012 Mr. Perry moved to approve the minutes as Minutes circulated. Mr. Nagano seconded the motion. Motion carried 4:0 Special Open Session Minutes of September 19, 2012 Mr. Perry moved to approve the minutes as circulated. Ms. Clark seconded the motion. Motion carried 4:0 Request for an Deputy Attorney Trask requested the Board to consider RAO 12-008 as the Advisory first request since Lt. Robert Craddick of the Fire Department was present Opinion for that agenda item. The Board granted permission. RAO 12-008 Letter dated 9/28/12 from Deputy County Attorney Mauna Kea Task as legal counsel for the Kaua'i Fire Commission as to whether there is a conflict of interest for Mike Nagano to sit as a Fire Commissioner while being employed by National Fire Protection, Inc., and interacting with Fire Department personnel to witness his inspections and to receive guidance regarding fire codes and fire standard interpretations Attorney Trask asked Lt. Craddick to explain what he does since he is s ecificall y the person who deals with Mr. Nagano. Board of Ethics Open Session October 12, 2012 Page 2 SUBJECT DISCUSSION ACTION Lt. Craddick stated he is the one who examines the plans, does public education and fire investigations. The Department deals with Mr.Nagano the same as with any other fire protection company for scheduling of acceptance tests for new hood systems, suppression systems, and alarm systems. If the Department is doing routine business inspections it is possible to run across Mr. Nagano's company's tag on existing systems that are annually inspected. On occasion Mr. Nagano will call asking for code interpretation or an overview of what the Fire Department thinks he should be doing in regard to the standards and code that regulate what they do. Ms. Clark thought Mr. Nagano's knowledge through the National Fire Protection, Inc. would be a benefit to sitting on the Fire Commission. Attorney Trask said the Fire Commission's duties, responsibilities and obligations include ensuring the honest and effective administration of the Fire Department generally, without getting involved in the day-to-day administrative operations as well as hiring and firing the Fire Chief. They are the appointing authority for the Chief and they field complaints from the public regarding the Fire Department. Mr. Hubbard asked Lt. Craddick if he thought Mr. Nagano had a conflict in working for the National Fire Protection, Inc., and being a member of the Fire Commission. Lt. Craddick responded no;not at all. It is just like any other person who is an architect or an engineer and whose plans come across our desk for stamping the plans. Lt. Craddick said he interacts with Mr. Nagano in the same way as any other business or professional person. In response to Ms. Clark's question, Mr. Nagano likewise would not get work from his being on the Fire Commission. Att orne Clark asked what type of presentations Mr. Nagano makes to the Board of Ethics Open Session October 12, 2012 Page 3 SUBJECT DISCUSSION ACTION Fire Department. Lt. Craddick said Mr. Nagano would call for a new system to be commissioned for a suppression system at a restaurant and Lt. Craddick assigns one of the inspectors who will fail or pass the system according to the standards and codes. Asked if Mr. Nagano would be present as the inspection occurs, Lt. Craddick said typically yes. Mr. Nagano's company also has people come in from Honolulu for different systems they install. They do fixed suppression systems which require an acceptance test that has to be witnessed by an inspector. Mr. Hubbard asked how long Mr. Nagano had been a Fire Commissioner and employed by National Fire Protection. Attorney Trask said Mr. Nagano was appointed earlier this year to the Fire Commission and his career is in the fire inspection industry but Attorney Trask did not have knowledge of how long that has been. Lt. Craddick stated that he has been dealing with Mr. Nagano for around three to five years. Attorney Clark directed the Board to the County Code, Section 3-1.7, Conflicts of Interest, which lists what employees can do. Employees are defined as including members of Boards and Commissions which says no councilman or employee shall assist any person or business or act in a representative capacity for a fee or other compensation............before the agency of which he is an employee. Mr. Hubbard said that is similar to 20.02 D of the Charter which says no employee shall appear in behalf of private interest before any county board, commission or agency. What the Deputy Attorney cited is narrower and has to do with a transaction if you appear or assist a business. Mr. Hubbard said there are firefighters who are employed by private interests that deal with the Fire Department and who received approval from a prior Board of Ethics. Mr. Hubbard said on the surface it appears that just the fact that Mr. Nagano is a Fire Commissioner and is employed by a business that has Board of Ethics Open Session October 12, 2012 Page 4 SUBJECT DISCUSSION ACTION some transactions with the Fire Department violates this section. It is not necessarily a conflict of interest but it violates 20.02 D and he questioned whether they were being too broad in letting others go. Attorney Trask said that was a good point and that is why this question arose. Some of our Boards and Commissions do require that industry individuals be on the board. Unlike the Planning Commission or other commissions that review permits and process such things, the Fire Commission does not get involved in the day-to-day operations or the decisions regarding situations like Mr. Nagano deals with. That is a distinguishing factor between the Planning Commission versus the Fire Commission. It is complex issue but if Mr. Nagano gets advice from this Board and follows it he is protected. Mr. Perry said the Chief is in charge of the entire Fire Department and he has subordinates of which some are inspectors who once in a while will inspect Mr. Nagano's work. The Fire Commission sits above the Fire Chief, there might be a conflict and he asked if Attorney Trask or Lt. Craddick could address that. Lt. Craddick said the inspectors are also members of the IAAI (International Association of Arson Investigators) and they have a canon of ethics that the Department is strictly held to, whether or not it is Mr. Nagano's work. The Department inspects on behalf of the Chief, who is like the fire marshal for the County. Although the staff is subordinate to him, they are independent of him in that they have to follow the strict standard according to the National Fire Protection Association Standards and the fire code that is the law through a legislative act at the State level as well as the County ordinance. Does it make a difference that Mr. Nagano is a Fire Commissioner, not at all? Lt. Craddick said it was just recently he read in the Fire Commission minutes that Mr. Nagano was a Commissioner. Board of Ethics Open Session October 12, 2012 Page 5 SUBJECT DISCUSSION ACTION Mr. Perry said he understands the need for the expertise of some people on the Fire Commission. Mr. Perry said he also understands there are two codes of ethics; the international one to which the inspectors comply as well as the County's code and this Board must apply the County's code. Attorney Clark interjected that the Board was not dealing with a subjective standard but an objective standard and the Board is not sitting in judgment of whether he believes he is doing something wrong or whether he is in fact doing something wrong. The Board is just being asked to apply the Code Mr. Perry moved that under RAO 12-008 there and the Charter as you see applicable. is a conflict of interest with regard to Charter §20.02 D and KCC §3-1.7 D relative to Mr. Mike Nagano sitting as a Fire Commissioner and being employed by the National Fire Protection. Mr. Nagano seconded the motion. Motion carried 4:0 RAO 12-007 Letter dated 9/10/12 from Deputy County Attorney Mauna Kea Trask as legal counsel for the Kaua'i Fire Department as to whether there is a conflict of interest for the 2013 Kaua'i Junior Lifeguard squad, Fire Department employees including Water Safety Officers, CountYpark employees, technical support staff and use of County resources, property and equipment in filming a proposed reality based television show currently entitled"Saving Lives" Mr. Perry noted on page 2,paragraph 2 the letter stated According to the current proposal 4Dventures will rely on the County to provide the following support services: (1)Information—no problem (2) staffing and (3) the use of resources and equipment,for example ATVs,jet skis, boards, buoys,flags, etc. Mr. Perry asked Attorney Trask to help him address why that would not be a special benefit to 4Dventures as opposed to what any other individual could acquire. Attorney Trask said the production company's proposal does read a certain way but in talking with them, Board of Ethics Open Session October 12, 2012 Page 6 SUBJECT DISCUSSION ACTION specifically about staffing and logistical support, they say they just want to film the Jr. Lifeguard program and be able to go on the jet ski to take some shots. The park personnel would be more for safety type things. Attorney Trask was not sure if the production company knew what they meant by that but he needed to present all the information to the Board. This project addresses an educational piece that the Fire Department and Ocean Safety Bureau (OSB) are always promoting so this would be an avenue to spread the message wider if this program is picked up and all the other contingencies are satisfied. Mr. Perry said the County does cooperate with people when they are doing movies but he does not know if the Board has ever looked into this special benefit. Attorney Trask did not think it was a special benefit because when you read what they say and listen to what they say it seems more benign. Attorney Trask thought the Fire Department/Ocean Safety Bureau would be happy to comply with some kind of modified decision by the Board if it is found appropriate to say the production company can film but not allow the County to provide certain things. In response to the question of who runs the Jr. Lifeguard Program, Attorney Trask said he thought it was a relationship between the Kaua'i Lifeguard Association (KLA),which he believes is a non-profit, and the Ocean Safety Bureau, which is a County agency. Attorney Trask thought that Kalani Vierra, the head of the Ocean Safety Bureau, may sit on the KLA Board but there is no formal relationship even though there may be a very large informal relationship. Mr. Perry asked why couldn't there be a contract between the Jr. Lifeguard Program and the 4Dventures people. Attorney Trask said reality television is a novel thing and the Kaua'i Jr. Lifeguard squad is highly decorated; this production company wants to touch it. The KLA is very passionate about what they do and in getting the water safety message out; aside from that the don't know much about contracting. Attorney Trask did tell Board of Ethics Open Session October 12, 2012 Page 7 SUBJECT DISCUSSION ACTION 4Dventures he needed to bring this before the Board of Ethics for an opinion and then talk with the union after that and ultimately get the County Council to sign off to have that protection for the County. Mr. Hubbard said that lifeguards do volunteer their time to do certain things; however when they run the Jr. Lifeguard Program the lifeguards who train the kids are all paid by the County because this is a state-wide program during the summer. It is worth it for the County to put in money, time and effort because the lifeguards do train and provide ocean safety awareness. This project does not seem to be too dissimilar from KLA's efforts and being non-profit they could work with this production company. Whatever they would do would be their own deal since the Board does not have any control over a non-profit. The question is can the County put in time, effort and money into this production, which is what 4Dventure is asking for with staffing, riding on the jet ski, etc., when there is no emergency involved. The question the Fire Department is asking is will this benefit the County? Will this advance our ocean safety awareness? If it does and the Chief is willing to put in a certain amount of money and a certain amount of staff, then they would like to do this. Will that be a special benefit? It could be a special benefit to the production company but it also benefits the County by advancing their goal of ocean safety awareness. Would that be a reasonable statement? Attorney Trask said that is exactly the client's (the Fire Department) position in this whole thing. The Department is very big on education in this area and they advocate safety films on airplanes and work with the rescue tubes. Their big thing is the best way to stop a drowning is to prevent a drowning. Mr. Hubbard asked Attorney Clark if when there are other production companies filming on the island do they have a contract with the County Board of Ethics Open Session October 12, 2012 Page 8 SUBJECT DISCUSSION ACTION and pay the County for use of whatever. Attorney Clark said the contracts that she has seen involve the right to go on to specific properties and film that property. They haven't involved the use of County employees or equipment. There is a provision in the Kaua'i County Code that deals with the licenses and what can be provided for in those instances. Attorney Clark thinks there is a distinction between a County supported event which would occur if someone went to the County Council and got their support in approving it as a County event. Attorney Clark did not know if an individual, the head of the Ocean Safety Bureau or the head of the Fire Department, can make that allocation himself. Mr. Nagano said he sees one as a County run program for the lifeguards teaching the kids safety and the other as a private firm which is not a County program and finds the two different. Mr. Hubbard asked Attorney Trask if the Kaua'i Lifeguard Association was the main sponsor of the program or was it actually the County's Ocean Safety Bureau. Attorney Trask said his understanding is that it is a joint program because the kids have to sign waivers and there is an involvement by the County in that they are trained by lifeguards. Attorney Trask did not know if the lifeguards were paid time or time and a half. Mr. Hubbard asked if the production company would pay any of the county employees to be actors or pay them while they are being paid by the County. Attorney Trask said the last sentence of the first page of the communication states that 4Dventures is not requesting financial compensation from the County of Kaua'i and does not intend to compensate the County for its collaborations. They are there to film the product and sell it to the networks and the County gets nothing beyond that. Mr. Perry said the problem as he sees it, OSB will guarantee staffing and Board of Ethics Open Session October 12, 2012 Page 9 SUBJECT DISCUSSION ACTION will guarantee the use of the ATVs and there is where the special benefit comes in. Giving them information, giving them some access rights is not a problem because that is the thing the general public can get a hold of but to guarantee them staffing, technical support including use of ATVs and jet skis is the problem. If OSB just has 4Dventures filming the event and does not guarantee them they will provide any equipment it should not be a conflict. The production company should get their own jet ski, board and equipment. As the request is stated right now, however, there is a problem with special benefits. Attorney Trask said Mr. Perry brought up a good point and as a matter of background, the Fire Department and KLA were approached by 4Dventures. In the general discussion, Attorney Trask advised 4Dventures that the potential issues are ethics, union, and ultimately the County Council. Attorney Trask requested a detailed written request in order to start the process with the understanding that it could stop at any given time. 4Dventures is not the County's client and we have not advised them of anything. Attorney Trask said if the Board does see a problem, on behalf of the client(Fire Department/OSB) who wants to realize this, they would be happy to follow an amended recommendation that the production company could film but without request#2, #3, etc., and they will comply. Ms. Clark said it seems on the surface there is a different relationship needed with the whole thing. Has Attorney Trask considered going before the County Council and asking them to give permission to do something like this? Attorney Trask said §3.18 of the Charter says the Council shall not interfere with the administrative processes of the County. The question is what does that mean? This Board is the arbiter of ethics, not the County Council and not the County Attorney. Before anyone can be asked for their authority, Board of Ethics Open Session October 12, 2012 Page 10 SUBJECT DISCUSSION ACTION ethics has to win. Mr. Perry said that since Attorney Trask had suggested an amended request, he would suggest Attorney Trask withdraw this request and discuss it further with the Fire Department/OSB and fashion it so there is no ethical question. Attorney Trask asked the Board to give him their recommendations so he can tailor the request accordingly. Mr. Perry suggested Attorney Trask review a copy of the draft of this meeting's minutes and the comments from the Board members which could assist him in limiting the discussion with OSB and 4Dventures. Mr. Perry said if the Board rules there is a conflict, Attorney Trask is stuck with that decision. It hamstrings OSB in dealing with 4Dventures. Attorney Trask said he understands the conflict to be questions that arise as to page 2,paragraph 2, item 2, item 3 and maybe item 4 and if that is the pleasure of the Board, he will withdraw the request at this time. Mr. Hubbard said Mr. Perry used the word guarantee but the 3rd paragraph seems that word is not appropriate and is a perfect out for the County. Since there is some concern and it appears there not will be a unanimous decision of the Board, maybe if 4Dventures went to the Kaua'i Lifeguard Association and let the Kaua'i Lifeguard Association deal with the County, which they do already on this program,we would not have a problem because they are a non-profit. Let the non-profit deal with 4Dventures. Mr. Perry said as it is written it is OSB, a County agency, who is asking if there is a conflict. Attorney Trask said he would withdraw the request at this time in order to further discuss it with his client to amend any potential arrangement they mi ht have with 4Dventures and KLA and will probably bring back a Board of Ethics Open Session October 12, 2012 Page 11 SUBJECT DISCUSSION ACTION different schematic to the Board. Vice Chair Hubbard said it is the Board's understanding that the request for RAO 12-007 is bein withdrawn Recess Vice Chair Hubbard called a recess at 9:52 a.m. The meeting was called back to order at 9:55 a.m. Business BOE 2012-17 Discussion and possible decision-making of adopting Robert's Rules of Order, Newly Revised for matters of procedure governing the conduct of Board meetings not addressed by the Board's Rules Ms. Clark moved to defer this item to the next meeting. Mr.Perry seconded the motion. Motion carried 4:0 Disclosures a. Ernest Barreira(Budget&Purchasing Director) Mr. Perry moved to receive Disclosure a. and deem it complete. Mr. Nagano seconded the motion. Motion carried 4:0 Executive Attorney Clark stated that the Board would be Session going into Executive Session for items ES-30, ES-31, ES-2, ES-3, ES-7, ES-8, and ES-16 as fully described in the posted agenda. Mr. Perry moved to go into Executive Session at 10:00 a.m. Ms. Clark seconded the motion. Motion carried 4:0 Return to Open The meeting resumed in Open Session at 11:00 Session a.m. Ratify Board of Ethics actions taken in Executive Session for items: ES-2, ES-3, ES-7, ES-8, ES-16, ES-30 and ES-31 Mr. Nagano moved to ratify the Boards' actions taken in Executive Session. Mr. Perry seconded the motion. Motion carried 4:0 Announcements Next Meeting: Friday,November 16, 2012— 1:30 p.m. Ms. Clark will be off island in November Adjournment Meeting was adjourned at 11:00 a.m. Board of Ethics Open Session October 12, 2012 Page 12 Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Mark Hubbard, Vice Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.