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HomeMy WebLinkAbout2012_1116_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 12/21/12 Board/Committee: BOARD OF ETHICS Meeting Date I November 16, 2012 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:31 p.m. End of Meeting: 4:18 p.m. Present Chair Kurt Akamine; Vice-Chair Mark Hubbard; Secretary Warren Perry; Members: Calvin Murashige; Paul Weil Also: Deputy County Attorney Mona Clark; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Paula Morikami Audience Members: Tim Bynum, Councilmember; JoAnn Yukimura Council Vice Chair; Mauna Kea Trask, Deputy County Attorney; Ken Taylor; Rob Abrew; Glenn Mickens Excused Members: Kathy Clark; Brad Nagano Absent SUBJECT DISCUSSION ACTION Call To Order Chair Akamine called the meeting to order at 1:31 p.m. with a quorum of 5 members present. Chair Akamine stated following the approval of the minutes he would like to go into Executive Session to allow Special Counsel to give a status report to the Board. Following that report the meeting will return to Open Session. Mr. Ken Taylor asked what agenda item(s)the Special Counsel was there for. Chair Akamine stated it was for Executive Session and that was all he was able to say. Approval of Regular Open Session Minutes of October 12, 2012 Mr. Perry moved to approve the minutes as Minutes circulated. Mr. Hubbard seconded the motion. Motion carried 4:1 (abstain-Weil Executive Attorney Clark stated that the Board would be Session going into Executive Session for items ES-2, ES-3, and ES-8 as fully described in the posted agenda. Chair Akamine asked if there was public testimony on the 3 items the Board would be convening in Executive Session to discuss. Board of Ethics Open Session November 16, 2012 Page 2 SUBJECT DISCUSSION ACTION Ken Taylor—Mr. Taylor stated he would speak on ES-3 and with all due respect to Deputy County Attorney Mona Clark, this item should not be discussed with the County Attorney. Mr. Taylor believes there is a conflict of interest with that office and the Board should have special counsel to deal with this item. When a potential or perceived conflict of interest exists the best ethical and moral way to deal with it is to absent one's self. In our situation,we had the County Attorney and the Council provide the Prosecutor's Office with special counsel to deal with a particular issue and the hearings lasted over 15 hours. The County Attorney was not only asked to give opinions and public comments on the meeting but they also went into closed session. Mr. Taylor said this was the crutch(sic) of the matter. If there was a conflict and a need to hire outside counsel for the Prosecutor's Office then the County Attorney behind that hiring has to look at all of the activities. Mr. Taylor said he does not have a problem with someone supporting a candidate. That is their choice but when they are in a decision making position or giving opinions as to what the law should or shouldn't be then it becomes a real problem. Mr. Castillo should have removed himself. Chair Akamine clarified that for this particular Executive Session the Board would be addressing agenda item ES-3 and not his complaint which is item ES-33. The Board will resume later in Executive Session to discuss item ES-33. Mr. Weil explained that item ES-3 is listed in the agenda as a letter Mr. Perry moved to go into Executive Session at dated November 25, 2011. 1:46 p.m. Mr. Hubbard seconded the motion. Motion carried 5:0 Return to Open The meeting resumed in Open Session at 2:08 p.m. The question arose as to whether the Board needed to ratify actions taken in Executive Session on agenda items ES-2, ES-3 and ES-8. Mr. Perry said there was discussion on these items but no official action was taken and they are on-going so there should be no need to ratify actions taken in Executive Session. Attorney Clark suggested returning to Executive Board of Ethics Open Session November 16, 2012 Page 3 SUBJECT DISCUSSION ACTION Session for the members to discuss their questions. Mr. Perry said this was more a procedural thing and does not have anything to do with the substance of the Executive Session. Executive Mr. Murashige moved to return to Executive Session Session at 2:11 p.m. Mr. Perry seconded the motion. Motion carried 5:0 Return to Open The meeting returned to Open Session at 2:14 Session with a recess called. The meeting resumed at 2:19 p.m. Request for An RAO 12-010 Letter dated 10/15/12 from Tim Bynum, Councilmember, Advisory Kaua'i County Council requesting an n expedited review and Advisory Opinion Opinion relating to his participation in Council agenda items/Council issues involving the Office of the Prosecuting Attorney Mr. Bynum said he has again been challenged as to whether he has a conflict, which he does not believe he does. He stated that everything he does and says at the County Council is public record; he can be held accountable to those statements and the community can decide if there is any bias. Mr. Perry stated that the Board also received a copy of the Federal District Court complaint. Attorney Clark said she provided that information because Mr. Bynum references it in his letter as to whether it causes a conflict. Mr. Bynum said in his letter he recognizes circumstances have changed somewhat by the filing of the complaint and the complaint is public record and speaks for itself. Mr. Bynum does not feel this puts him in a different position in regard to whether he has a conflict at the County Council. Ken Ta for—Mr. Taylor noted that Mr. Bynum did step down after another Board of Ethics Open Session November 16, 2012 Page 4 SUBJECT DISCUSSION ACTION person recently questioned whether Mr. Bynum had a conflict of interest. Mr. Taylor believed there were two conflicts of interest, Mr. Bynum and Mr. Castillo, at the October 17 meeting and therefore he is uncomfortable having County Counsel representing these activities when there is this conflict. Mr. Taylor suggests special counsel be brought in to deal with this project and his complaint. Mr. Bynum did step down a couple of times and then claimed there were no decisions being made,just discussion. Decision making is not just the vote; a very important part of the decision making is the discussion and opinions before voting. With the lawsuit Mr. Bynum has against the County and the Prosecuting Attorney there is a potential or a conceived(sic) conflict of interest. For the betterment of the community it would be best for him to absent himself from any discussion until that lawsuit is gone. Mr. Murashige asked Mr. Taylor what happens with Mr. Bynum's role in the County Council when there is a new Prosecuting Attorney sworn in on December 4th. It would appear the conflict that is being addressed has to do with the present Prosecuting Attorney so will there still be a conflict? Mr. Taylor said Mr. Bynum's lawsuit does not go away on the 4th and as long as there is a lawsuit against the County and the Prosecutor, there is a conflict for him to participate in any discussion. Mr. Murashige commented that Mr. Bynum would be paid just to hold an elected position but not to participate. Mr. Taylor said on any item that is in front of the Council that deals with the Prosecuting Office. Mr. Murashige commented that Mr. Bynum is suing the County as well so he cannot act on any County business. Mr. Taylor said he had not thought about that but it may be another issue and it is a difficult situation. Given a hypothetical situation of a councilperson's family member is struck by a County vehicle and a lawsuit is filed against the County, should that councilperson recuse themselves from all County dealings? Mr. Taylor claimed it was a h othetical situation that they have not talked about but they would have Mr. Perry moved that the Board advise Board of Ethics Open Session November 16, 2012 Page 5 SUBJECT DISCUSSION ACTION to look at it very seriously and make a good judgment call on what is the Councilmember Bynum that there is no conflict proper thing. of interest. Mr. Murashige seconded the motion. Mr. Hubbard said he was in favor but it needs to be worded as such to answer his question that there is no conflict with his considering OPA's request to apply for,receive, or expend State...............funds for the POHAKU program, which he did; he recused himself. Mr. Hubbard wants the Board of Ethics to say there was no conflict there but any items involving OPA he did not know. There might be a conflict on other items because we don't know what items are going to come up so we should not say there is no conflict ever between Mr. Bynum and OPA. There is no conflict with this request. Mr. Perry said that was basically what his motion addresses. Mr. Perry cited 20.04 B any elected official.........who possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority,.........shall have a conflict or shall not participate. When you sue someone you have a conflict. In some ways there is a conflict and yet the reality of the situation and given the duties of the councilmember and the prevalence of lawsuits Mr. Perry said there is no conflict. Attorney Clark said 20.04 and the matter that is before the body and the matter that would be before the body would be a specific agenda item such as the budget or POHAKU. Does the lawsuit create a conflict as far as that; it is not clear that it does. Chair Akamine said he does not see how Mr. Bynum's participation would violate the Code of Ethics, §3-1.6 Fair Treatment. Board of Ethics Open Session November 16, 2012 Page 6 SUBJECT DISCUSSION ACTION Mr. Bynum said he hopes there is a presumption that there is no conflict because if a situation arises where someone could question it he would be back at square one. Also, Mr. Perry's characterization of going after someone Mr. Bynum's frame would be holding people accountable to his civil rights. Mr. Weil thought Mr. Bynum did understand or certainly should understand that if this motion passes it is not a blanket get-out-of-jail-free card; it refers Mr. Perry restated his motion that there is no specifically to the matters in the motion as other situations may arise where conflict relative to the request from Mr. Bynum it would be incumbent upon him to recuse himself. for an Advisory Opinion on this matter. Motion carried 5:0 RAO 12-009 Letter dated 10/2/12 from JoAnn A. Yukimura, Council Vice Chair, Kaua'i County Council, requesting an Advisor,Opinion related to a campaign donation from an applicant for a zoning amendment that will come before the Council for decision-making in the next two months JoAnn Yukimura—Ms. Yukimura said this is an important issue with all the back-and-forth in Honolulu regarding campaign contributions from people that may have a stake in issues that would come before the winning candidate. One aspect of this issue is the Citizen's United Decision which allows unlimited spending but on Kaua'i there is an ethics provision in our Charter which could allow this Board to give some guidelines for the whole issue of campaign donations from those who may have items coming before the Council. The item which Ms. Yukimura referenced in her letter is before the County Council right now. It is within a month after the election and the County Council is being called upon to make a decision affecting the donor of these campaign monies. If this is a potential conflict of interest, how many months before or how many months after the election does it apply? If the Board does choose to say it is a potential conflict of interest it would remove any appearance of conflict and the Board could set u idelines more broadly through the rule-making process which would Board of Ethics Open Session November 16, 2012 Page 7 SUBJECT DISCUSSION ACTION also take a lot of pressure off of developers. It would clear the air to say within so many months of the election, before and after, it is a conflict of interest to have contributions made by people who are coming before the elected body. Ms. Yukimura said in the past she has made her own decision not to accept these checks but it might be time for actual rulings and guidelines. You might be able to define an amount but it would be simpler to say no contribution. Chair Akamine said the request before the Board is to make an Advisory Opinion relative to this matter. Whether there will be any action taken to make it clearer can be taken up later. Mr. Perry said he would rather see a request for an Advisory Opinion at this time rather than a complaint filed after the Council takes action on this zoning amendment. Mr. Weil asked if one of the real considerations isn't the public perception and one of this Board's functions must be to protect officers of the County, members of the Council, etc., with regard to public perception. Ms. Yukimura agreed; the whole trust and confidence in government operations is potentially affected by this. Ken Taylor—Mr. Taylor said Ms. Yukimura has been around government a long time and should know and understand the answer to the question being asked. The perception is what is being dealt with and a conflict dealt with properly is not a problem. While the money may have been given in good faith that individual will come with a request for a decision and Ms. Yukimura should remove herself from that decision making process. Tim By in—Mr. Bynum said the Hawai'i State Campaign Spending Board of Ethics Open Session November 16, 2012 Page 8 SUBJECT DISCUSSION ACTION Commission has rules and all of the (donations) are public record. Certain companies that don't make donations, particularly A&B and Grove Farm, have a number of things that come before the Council in a given year because their activities are in our community. If this was pretty broad there would be very few members who could vote. Mr. Bynum said donations do not influence his vote and everything is disclosed where people can make their own judgments. Ms. Yukimura is saying this is a specific donor that has a specific item forthcoming. If Mr. Bynum were ruling he would keep it fairly narrow because if it is broad it has significant implications for the way it has been and the way it will be in the future. Rob Abrew—Mr. Abrew said if it can reasonably be inferred that the gift is intended in the performance of his duties or intended as a reward, only that person can make the decision when the issue comes in front of them. A board cannot decide that for them. It is an individual's decision. The consequence after, if someone has a complaint, is they bring that to the board. Ms. Yukimura, bringing this to the board,thinks she has a reasonable inference that this could be shown as a gift or received as a compliment. Attorney Clark said when talking about being reasonably inferred, the Charter sets up a reasonable person standard, which would be an objective standard rather than a subjective standard. It should be evaluated not only by the person and by what they feel but also by an objective standard based on the facts and circumstances surrounding the situation. JoAnn Yukimura—Ms. Yukimura said that comes from a huge body of law and if this was just to be determined by the receiver you would not need an Ethics Board; and those who perceive one way get to act one way and those who perceive the other way get to act the other way. It makes no sense as a law. Ms. Yukimura said the remedy is not to recuse herself from actin on Board of Ethics Open Session November 16, 2012 Page 9 SUBJECT DISCUSSION ACTION a very important matter she has been elected to act on; the remedy is to not accept the gift. Clear rules are needed that consistently govern behavior. Disclosure in the Charter is very different than what is before the Board. It is the Board who determines what those circumstances are in which it can be reasonably inferred. The wording in the Charter tries to delineate or preclude circumstances where there might be an influence in the decision from a gift so that decision makers can be objective. Mr. Murashige asked if the decision makers would not be objective regardless of whether there was a gift or not. Ms. Yukimura replied not necessarily; there is no assurance that it is an objective decision. In isolating this instance only, Mr. Weil asked Ms. Yukimura if she should now accept this donation, and if the answer is she should not accept it now, attenuated to that is should Ms. Yukimura be able to accept it in the future. If limiting the future, how long? While Ms. Yukimura is still in office? While the matter is still before the Council? It can always be inferred if given later it was a reward for her vote. It is not a simple problem. Ms. Yukimura said there is a certain period and amount that is defined for disclosures in elections. The influence is lessened as the time increases either after or before. Chair Akamine said there are campaign spending laws that govern contributions and wouldn't that be another body that would make the rules clearer. This Board will take action on the Advisory Opinion before them but it might be clearer for another body to determine if further actions are needed. Ms. Yukimura said if the Board feels it comes under the ethics ruling in the Charter, the Board has the leeway to define it for the County of Kaua'i based on ethics laws. Campaign spending laws govern contributions and their main philosophy is disclosure. This contribution is from a whole Board of Ethics Open Session November 16, 2012 Page 10 SUBJECT DISCUSSION ACTION other angle. It is whether the Board as well as the interpreter of the rules thinks campaign contributions will or could influence decision making. Glenn Mickens—Who, except the person, is going to know if a contribution is influencing them to do something. That would be a tough decision for a Board to make. Because Ms. Yukimura is here she must be saying in her heart that there could be a conflict here. Chair Akamine asked that everyone keep to the request on the agenda item and not go beyond the bounds of that. Tim Bynum- The current Hawai'i State laws about disclosure and limits are sufficient to address this issue. When the Charter talks about receiving gifts, Mr. Bynum thought that meant to items such as pound cakes, calendars, and cookies from people who do business with the County. Mr. Bynum stated he did not think that section of the Charter addressed campaign contributions; it is addressing gifts that go directly or indirectly to the elected official. Ken Taylor—It was said earlier that one of the ways to remedy the problem is not to accept the funds. The intent of everything that has taken place is there so whether the money is accepted or not creates perceived problems. Mr. Perry moved that there is a conflict relative to Ms. Yukimura's request for an Advisory Opinion. Motion dies for lack of a second. Mr. Hubbard moved that there is no conflict for Ms. Yukimura's campaign organization, JoAnn Yukimura's Many Friends to receive a check of $250.00 from a corporate land owner that has applied for a zoning amendment that will be before the County Council in the next two Board of Ethics Open Session November 16, 2012 Page 11 SUBJECT DISCUSSION ACTION months. Motion dies for lack of a second. JoAnn Yukimura—Ms. Yukimura said she was looking for guidance as to whether she could accept the donation or not. Will it be a conflict of interest to accept the check? Ms. Yukimura said she wanted advice to govern her actions. Mr. Perry moved that the Board find that there is a conflict relative to the request for an Advisory Opinion on RAO 12-009. Mr. Weil seconded the motion. Mr. Perry said 20.02 states no officer or employee of the county shall........receive anything, anything (emphasis by Mr. Perry)under circumstances in which it can be reasonably inferred that the gift is intended to influence future actions or past actions. But for the position in dealing with these members as a county employee or officer, they would not have received the fruitcake. The County Council played with the Code of Ordinances §3-1.4 and said an occasional non pecuniary gift, insignificant in value, or an award publicly presented but that is contradictory to the clear wording of the Charter which is.....do not receive anything (emphasis by Mr. Perry)under the circumstances where it can reasonably be inferred. The $250.00 can be reasonably inferred to either reward Ms. Yukimura for actions that have been taken or to influence her in actions that will be taken. No one can tell how someone else perceives things. Mr. Perry said he will not put himself in a position to tell how people perceive things, much less public perception, and will not be held to that standard sitting as a member of the Board of Ethics. Mr. Perry said he would sit and apply the Code of Ethics to any situation that is appropriately brought before the Board. Mr. Weil did not fully agree with Mr. Perry but thought the Board could reasonably perceive that public perception will frown upon acceptance of gifts at a time when a matter is pending on which the receiver is going to act so it is not difficult to see what public perception would be. Board of Ethics Open Session November 16, 2012 Page 12 SUBJECT DISCUSSION ACTION Mr. Hubbard stated he was opposed to this motion. The campaign spending laws guide campaign spending. If the Board says this is a conflict then it would seem someone could donate to a candidate but not to an incumbent because their stuff might come before the County Council. Mr. Hubbard said they should depend on the campaign spending laws to guide them and did not think there was a conflict. Mr. Murashige tended to agree with Mr. Hubbard. Each elected official should vote his or her conscious in terms of matters coming before the Council. The public will perceive things the way the public wants to perceive but it is up to the official to decide whether or not having received a campaign contribution is impacting his or her vote. Mr. Perry said this Board has the Charter and the Code of Ordinances to interpret. The Code of Ordinances changes the intent of the clear wording of the Charter. The Charter says you do not receive anything under circumstances where it can be reasonably inferred that it will be for future actions or past actions. Right now the issue is a campaign committee receiving money only because of Ms. Yukimura's position as a County elected official. That presents a reasonable inference that it was intended to affect future decisions or past decisions. Roll Call Vote: Hubbard—Nay; Murashige— Nay; Perry—Aye; Weil—Aye; Akamine—Nay Motion failed 2 ayes; 3 nays Mr. Hubbard moved that there is no conflict relative to Ms. Yukimura's request for an Advisory Opinion. Mr. Weil seconded the motion. Attorney Clark said one of the things the Board is going back and forth with is whether there is a question of preemption by the election laws for this matter. That is something that could be researched if the Board wishes to Board of Ethics Open Session November 16, 2012 Page 13 SUBJECT DISCUSSION ACTION defer this request. Roll Call Vote: Hubbard—aye; Murashige— Aye; Perry—Nay; Weil—aye; Akamine—aye Motion carried 4 ayes; 1 nay RAO 12-011 Letter dated 11/2/12 from Deputy County Attorney Mauna Kea Trask as legal counsel for the Kaua'i Fire Department as to whether a revised request for a proposed reality show based on the 2013 Kaua'i Junior Lifeguard quad and the attendant areas of support being requested to be provided by the County are allowable under the County of Kaua'i Code of Ethics Deputy County Attorney Trask said he took the prior advice of the Board and scrubbed the request to make it clear what the County's involvement is. The production company will do anything and everything on their own without any remuneration or compensation to the County of Kaua'i or the Kaua'i Lifeguard Association. Notwithstanding they will rely on the County to provide them with information, help identify content for their series, help prioritize the message that will reach their audience and give them advice when needed. Attorney Trask said that was important given the Ocean Safety Bureau is in charge of ocean safety for the County of Kaua'i and they have an unparalleled knowledge in that aspect. There is no need for commitment of materials, funds, manpower and/or technical expertise. The production company is happy with this and understands the Mr. Perry moved that the Board find there is no discussion. conflict relative to the request RAO 12-011. Mr. Hubbard seconded the motion. Motion carried 4:1 (Weil—abstain) Mr. Weil explained that he did not have the opportunity to hear the discussion at the last meeting and did not feel qualified to vote on the issue. Business BOE 2012-17 Discussion and possible decision-making of f adopting Robert's Rules of Order Newl y Revised for matters of procedure g2ypmin Board of Ethics Open Session November 16, 2012 Page 14 SUBJECT DISCUSSION ACTION the conduct of Board meetings not addressed by the Board's Rules. (Deferred from 10/19/12) Chair Akamine said after some of the proceedings at previous meetings he recognized that the Board does follow parliamentary procedures but this Board has never adopted the Robert's Rules of Order, which leaves a lot of power or discretion to the Chair to run the meeting. Chair Akamine thought it would be prudent for the Board to adopt Robert's Rules. Mr. Weil moved to adopt Robert's Rules. Mr. Perry seconded the motion. Attorney Clark said to adopt Robert's Rules the Board would need to go through the rule-making procedure. Motion carried 4:1 Hubbard—na Executive Attorney Clark stated that the Board would be Session going into Executive Session for items ES-32, ES-7, ES-16 and ES-33 as fully described in the posted agenda. Mr. Perry moved to go into Executive Session at 3:26 p.m. Mr. Murashige seconded the motion. Recess: 3:27 p.m. The meeting resumed at 3:32 p.m. Chair Akamine asked for public testimony on those items specified for this Executive Session. Attorney Clark noted to any members of the audience who will be testifying in Open Session on item ES-33 that she will be recusing herself from that matter. Attorney Clark also stated that she did not think she should review ES-33 of the Executive Session minutes. Glenn Mickens—Mr. Mickens stated that Mr. Castillo used his position to secure a special benefit to obtain political advantage for his Deputy Count Board of Ethics Open Session November 16, 2012 Page 15 SUBJECT DISCUSSION ACTION Attorney Justin Kollar. A calculated political vendetta has been waged against our Office of the Prosecuting Attorney. Mr. Mickens stated that Mr. Castillo has every right to freedom of speech and to vote for whomever he wants but when his position has even the appearance of a conflict he should recuse himself. Ken Taylor—Mr. Taylor explained that after they asked for clarification, the County Council referred(Mr. Mickens and Mr. Taylor) to the Board of Ethics. Additional information received since filing the complaint shows possibly that due diligence that should have taken place between Mr. Castillo and the Prosecutor's Office before settlements were made did not take place. That is part of the problem. When asked what the conflict is, there are a number of them but the picture included with the documents is certainly one of them. Additional information gathered also sheds light on the activity. Mr. Taylor stated it was imperative that the Board get outside counsel to look at this and other documents they have available. Mr. Murashige noted that Mr. Taylor had mentioned the Hawai'i Rules of Professional Conduct which governs the conduct of attorneys and asked if they had filed a complaint with the Office of Disciplinary Council. Mr. Taylor said they were in the process of discussing that now. Mr. Perry added that was the Office to take care of this type of complaint and not this Board. Chair Akamine explained that when complaints are brought to the Board of Ethics they are treated as a confidential matter. However, it came to Chair Akamine's knowledge that everyone knows about the complaint through media blogs. Chair Akamine asked if Mr. Taylor and Mr. Mickens held this complaint in confidence or did they make the complaint public knowledge. Not understanding the question, Chair Akamine rephrased it by asking if they made the complaint public. Mr. Taylor said after he filed the document with Barbara's office, this file was given to others; yes. Motion to go into Executive Session at 3:46 p.m. Board of Ethics Open Session November 16, 2012 Page 16 SUBJECT DISCUSSION ACTION carried 5:0 Return to Open The meeting resumed in Open Session at 4:16 Session p.m. Ratify Board of Ethics actions taken in Executive Session for items: ES-2, ES-3, ES-7, ES-8, ES-16, ES-32 and ES-33 Mr. Perry moved to ratify the Board's actions taken in Executive Session. Mr. Murashige seconded the motion. Motion carried 5:0 Announcements Next meeting: Friday, December 21, 2012— 1:30 p.m. Adjournment Chair Akamine adjourned the meeting at 4:18 p.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.