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HomeMy WebLinkAbout2013_0215_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 3115113 Board/Committee: BOARD OF ETHICS Meeting Date February 15, 2013 Location Mo `ikeha Building, Liquor Conference Room 3 Start of Meeting: 1 :30 p.m. I End of Meeting: 3 : 25 p.m. Present Chair Kathy Clark; Secretary Warren Perry; Members : Kurt Akamine; Mark Hubbard; 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, Deputy County Attorney Mauna Kea Trask Excused Vice-Chair Calvin Murashige Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, Council Administrative Assistant Eddie Topenio gave the Oath of Office to Board members Kathleen Clark and Warren Pe Call To Order Chair Clark called the meeting to order at 1 :30 p.m. with 6 members present which constituted a quorum. Public Hearing BOE 2013-01 Kaua'i County Board of Ethics Rules and Regulations (notice published January 16, 2013 in the Garden Island newspaper) Chair Clark called the Public Hearing to order at 1 :30 p.m. and asked for public comments on the proposed adoption of Parliamentary Authority to the Board's Rules. With no one coming forth to provide comments, Chair Clark closed the Public Hearing. Request to Chair Clark noted the receipt of a letter from Deputy County Attorney Amend the Mauna Kea Trask and asked for a motion to add the request for an Agenda Advisory Opinion to the agenda just before the agenda item Business. Mr. Perry so moved. Mr. Akamine seconded the motion. Motion carried 6:0 Approval of Regular Open Session Minutes of January 18. 2013 Mr. Perry moved to approve the minutes as Minutes circulated. Mr. Akamine seconded the motion. Motion carried 6: 0 Communications BOE 2013-02 Memorandum dated January 11 , 2013, from JoAnn Yukimura Councilmember, regarding a Possible Conflict of Interest C Board of Ethics Open Session February 15, 2013 Page 2 SUBJECT DISCUSSION ACTION 2013-44 Request for an Extension to the License Agreement between the Boys and Girls Club of Hawai'i and the County of Kaua'i BOE 2013-03 Memorandum dated January 22. 2013, from Nadine K. Nakamura, Council Vice Chair, regarding a Possible Conflict of Interest— January 17. 2013 Council Meeting Relating to the Agenda Item C 2013-46 (Kaua'i Island Utilitv Cooperative (KIUC) Interconnection Agreement) Mr. Perry moved to receive both communications. Mr. Akamine seconded the motion. Motion carried 6:0 Request for RAO 13-001 Letter dated February 1. 2013,from JoAnn Yukimura, Advisory Councilmember, requesting an advisory opinion regarding her role as a Opinion member of both the Kaua'i Countv Council and the Leadership Council of the Keiki to Career Kauai Project who will be presenting a progress report to the Countv Council on March 13, 2013 Mr. Weil moved that the Board find there is no conflict. Mr. Akamine seconded the motion. Mr. Nagano said read from the criteria of the Keiki program in which their fundraising efforts will be to "secure support for multi-year funding of the backbone function from public, private and corporate sources". Mr. Nagano questioned if"public"needs to be clarified because if that is the government there is a conflict as a Councilperson. Mr. Hubbard stated that he is also a member of the Leadership Council for Keiki to Career; however, he does not feel he has a conflict with regard to discussing this request. Mr. Hubbard said he liked Mr. Nagano's comments because the question always comes up about money. Mr. Hubbard said he would like to see the motion reflect the question "do I have a conflict of interest which would prohibit me from participating in a Council meeting as it relates to the progress report(emphasis stated by Mr. Hubbard)for the project". Mr. Hubbard's answer was no; there is no conflict. Mr. Hubbard said he suspects Ms. Yukimura might want a little more than that such as what if they ask the Council for money but the Board of Ethics Open Session February 15, 2013 Page 3 SUBJECT DISCUSSION ACTION Board should not answer that right now because the Board is not being asked to answer that. Mr. Nagano asked if the draft program was not also part of her letter to the Board. Mr. Akamine said the question that was asked is "do I have a conflict of interest that would prohibit my participating in the March 13, 2013 Council Meeting as it relates to the progress report on the Project?" Mr. Nagano's point is well taken but it was not about funding; she is asking about that one meeting as it relates to the progress report of that project. Mr. Akamine asked if the Board needed to clarify the motion to reflect Ms. Yukimura's question. Mr. Perry said he bounced off of the request from the ethics provision and it says any elected official (JoAnn Yukimura)who is an owner, officer, executive director or director of an organization who possesses interest and might reasonably tend to create a conflict with his duties or authorities but it does not specify what sort of things are coming before that person that may or may not cause a conflict. This (Leadership) Council does not have a Board of Directors, they have a Council so what does the Council analogous do. Mr. Hubbard said they act as an advisory board; they do not have the fiduciary. Mr. Perry said he looked at what a Leadership Council does, the purpose, the responsibilities and it smells like they have a chair, it smells like a board of directors. You can call it a member of a council but Mr. Perry sees it as members of a council who are members of a board of directors. In the Charter it says if you are a director;this looks like a director, smells like a director, makes noise and has responsibilities like a director and it does not specify which sorts of actions are or are not in conflict. Just given the clear wording and reasonable interpretation of ethics,there is a conflict because Mr. Perry thinks Ms. Yukimura belongs to a board of directors of a non-profit organization that will come before her for official action, so there is a conflict. Mr. Nagano said it also states that she is a member of the executive committee. Mr. Perry said Ms. Yukimura also says the executive committee takes direction from the Board of Ethics Open Session February 15, 2013 Page 4 SUBJECT DISCUSSION ACTION Leadership Council and she is a member of the Leadership Council and while not knowing what a Council is, it smells like a board of directors. Chair Clark said the question before this Board is is there a conflict with her sitting on the County Council when they receive progress reports and not recusing herself. Mr. Perry said that is the direct language from Ms. Yukimura's request but sitting on the Council also infers official action; not just sitting there doing nothing. Chair Clark said the Board needs to answer the question before them and there is a motion on the floor. Mr. Hubbard said if the Board wishes to expand and say there is a conflict he would tend to agree with Mr. Perry and Mr. Nagano. However, one could argue that these two functions, the Leadership Council and Keiki Career, are for public education and the interests are the same as the County Council. If the Leadership Council asked the County Council for a letter of recommendation, Mr. Hubbard thought there would be no conflict there because that is something the County Council can give lots of. If they ask for money from the County Council that is money that could go to someone else and even though the interests are very similar there is a conflict. Even though it is not a board it is very likely it will be a board in the future if they spin off and become their own non-profit. The conflict of interest definition in the State Ethics talks about advisory boards so if this is expanded, there is a conflict. Mr. Hubbard said he would say there is no conflict with a progress report on March 13 if they are very specific. But if it is expanded and the Leadership Council comes back and asks for money then Ms. Yukimura would ask for another opinion. Mr. Weil said that is what she would have to do. Chair Clark said this Board always tells her to answer the question before them. Mr. Akamine said what is before the Board today is the question of whether Ms. Yukimura has a conflict as it relates to the progress report on Board of Ethics Open Session February 15, 2013 Page 5 SUBJECT DISCUSSION ACTION that particular date. Chair Clark said if the Board agrees to that she would suggest the letter be very firm stating the response is for this particular question. Mr. Perry believed the letter could say as a director of an organization and a member of the County Council there is a conflict if one acts as a member of the County Council on something coming from that organization. Mr. Perry said he did not want to get caught in people asking for opinions where they state it so narrowly. Mr. Weil said the counterpoint is this Board's function is not to speculate on what other scenarios might become involved. Attorney Clark said the question of participation has something to do if, as a participant in the matter before the Board,the participant directs any of the questions or focuses the attention or somehow has an effect on what is coming before the Board. The general rule of when the Attorneys go to Council as far as if there is a conflict, the person recuses themself and does not participate at any level in the conversation concerning the item before the Council, not just whether they vote on the item. Mr. Perry agreed saying"shall not participate". Mr. Nagano asked if that same scenario would fit Mr. Hubbard as he is on the Leadership Council and he is discussing it or influencing this Board. Mr. Hubbard said he would agree if the request came from the Leadership Council that he would have a conflict. But the request came from Ms. Yukimura who happens to be on the Leadership Council and the decision is about Ms. Yukimura, not the Leadership Council. Mr. Akamine said in addressing this particular request the Board needs to be careful it not be interpreted to have a broader impact about other Council member's activities outside the Council. Mr. Akamine said the motion needs to be specific to the relative question that was given to the Board. Board of Ethics Open Session February 15, 2013 Page 6 SUBJECT DISCUSSION ACTION Mr. Weil said they have already said that the opinion letter, if the motion passes, should deal with the specificity of the motion which relates solely to the question raised by the inquiry. Mr. Akamine asked that the motion be restated. Mr. Weil said the motion is that the Board finds, with reference to the specific letter and question posed by Ms. Yukimura, there is no conflict. Roll Call: Akamine—Aye; Hubbard—Nay; Nagano—Nay; Perry—Nay; Weil—Aye; Clark —Aye. Motion failed: 3:3 Mr. Perry said if they make a motion to say there was a conflict the vote would probably also be 3:3. It was also noted that the neat Board of Ethics meeting is after the March 13 County Council meeting which precludes asking Ms. Yukimura to appear before the Board to answer questions. Mr. Akamine referenced Mr. Nagano's comment and asked the County Attorney to opine on Mr. Hubbard's participation in the decision on this matter given his capacity on the Leadership Council. Attorney Clark said they would still need a majority vote even if Mr. Hubbard did not participate. Chair Clark asked if they could respond to Ms. Yukimura saying the Board did not feel it had enough information to reach a majority opinion. Mr. Akamine moved to advise Ms. Yukimura that the Board did not have enough information to reach a majority opinion. Mr. Perry seconded the motion. Motion carried 4:2 (nays — Hubbard; Weil) Mr. Hubbard moved that the Board reply to the request for an opinion stating that the Board considers Ms. Yukimura as a director of an organization therefore under Section 20.04 B she would be in conflict if she participates in any meeting related to the Leadership Council before Board of Ethics Open Session February 15, 2013 Page 7 SUBJECT DISCUSSION ACTION the County Council. Chair Clark said that was an opinion and the Board just voted (that there was not enough information to make an opinion). Mr. Hubbard said his motion was a motion to make a decision. Attorney Clark asked if this was a motion to reconsider Mr. Akamine's motion. It was agreed that the last motion was not in order. Letter dated February 13. 2013,from Deputy County Attomev Trask requesting an advisory opinion on whether there is a conflict of interest if he attends the March 2, 2013, Humane Society Fundraiser as a guest of Grove Farm Senior Vice President Michael Tressler. Deputy County Attorney Trask thanked the Board for accommodating his request to be placed on the agenda. Mr. Trask stated he does not have any pending litigation cases against Grove Farm. They are a very large landowner on the island so there are a lot of issues including the sighting for the new landfill, the Puhi Metals issue and more recently the Planning Department's support of Grove Farm's petition to the LUC(Land Use Commission)for their self-designation of their lands as Ag lands. The decision was made totally by the Planning Department and Mr. Trask had nothing to do with that decision but he did represent the Planning Department in front of the Land Use Commission and there are a myriad of other issues involving Grove Farm. Mr. Trask stated he provides his client (the County of Kaua'i)with advice and counsel as well as representation but does not make any policy calls and would never make the ultimate call of whether to go right or left with Grove Farm or any one of its corporate subsidiaries. Mr. Trask stated he is involved in the process and does give advice to keep the client informed in order to make the decision ultimately. Mr. Trask said he did call the Office of Disciplinary Counsel, which is an agency on the arm of the Hawai'i Supreme Court that advises licensed attorneys in the State of Hawai'i and prosecutes charges under the Hawai'i Board of Ethics Open Session February 15, 2013 Page 8 SUBJECT DISCUSSION ACTION Rules of Professional Conduct and are the specific rules for attorneys. Mr. Trask received an oral opinion from Charlene Norris who referred Mr. Trask back to the Board of Ethics as there is nothing in the Attorney Rules. Mr. Akamine asked if the invitation was as a guest of Grove Farm via Mike Tressler or Mike Tressler personally. Mr. Trask understood it as Mike Tressler personally. With a lot of these fundraisers the people who are in and around town, they are giving, and choose to or have a need to attend these charities so they buy tables and invite people to join them. Mr. Trask again said he understood the invitation was as Mr. Tressler's guest but he did not think to ask further whether it was Grove Farm. Mr. Perry said the pilikia part was "guest of Grove Farm Senior Vice President Mike Tressler". You remove those words and leave only Mike Tressler you do not have a problem. Mr. Perry said that Mr. Trask stated he considered Mr. Tressler as a social friend, acquaintance, and questioned how that relationship developed. Was it as a member of the County Attorney's Office or as an individual prior to that because a lot of governmental workers do form those friendships and relationships. The Code of Ethics says no officer or employee of the County shall solicit, accept or receive directly or indirectly any gift, money, service, loan, travel, entertainment under circumstances in which it can reasonably be inferred that the gift is intended to influence him in the performance of his official duties or is intended as a reward for past actions; that is the pilikia part. Mr. Trask said he may have met Mr. Tressler throughout his life but the majority, if not 100% of that time, was through County work. Mr. Hubbard stated this was a gift, which is not insignificant, and Mr. Trask cannot accept it; it does not matter about any relationship. Mr. Trask said it all comes down to reasonableness and can it reasonably be inferred. Mr. Trask said he would not allow anything to influence him as far as advising his client but as arbiters of reasonableness he will follow the Board of Ethics Open Session February 15, 2013 Page 9 SUBJECT DISCUSSION ACTION Board's decision. Mr. Perry moved it would be a conflict for Deputy County Attorney Mauna Kea Trask to attend the March 2, 2013, Humane Society fundraiser as a guest of Grove Farm's Senior Vice President Mike Tressler. Mr. Weil seconded the motion. Motion carried 6:0 Business BOE 2013-04 Deliberation and possible decision-making on the proposed adoption of Parliamentary Authoritv of the Kaua'i Countv Board of Ethics Rules and Regulations Part I and Interpretive Rules Part II Mr. Perry moved that the Board adopt Robert's Rules. Mr. Akamine seconded the motion. Motion carried 6:0 Disclosures a. Eugene Keith Jimenez (Fire Commission) b. Theodore Kawahinehelelani Blake (Public Access, Open Spaces) c. Nadine Kuniko Nakamura(County Council) d. Ross Kiyoshi Kagawa(County Council) e. Gary Lee Hooser (County Council) f. Joseph Jay Furfaro (County Council) g. Tim Lee Bynum (County Council) h. Jade K. Fountain-Tanigawa(Deputy County Clerk) i. Melvin F. Rapozo (County Council) j. Ricky Watanabe (County Clerk) k. Frederick Kamuela Cobb-Adams (Director of Housing) 1. Tracy Jean Murakami (Deputy Prosecuting Attorney) m. JoAnn Ai Yukimura(County Council) n. Ginger Dania Grinpas (Deputy Prosecuting Attorney) o. Teresa F. Tumbaga(Deputy Prosecuting Attorney) p. Kevin Kenji Takata(First Deputy Prosecuting Attorney) q. Jenelle Renee Hughes (Deputy Prosecuting Attorney) r. Shauna Lee Cahill (Deputy Prosecuting Attorney) s. Henry Ramsey Ross, III(Deputy Prosecuting Attorney) t. Rebecca Ann Vogt Second Deputy Prosecuting Attorney) Board of Ethics Open Session February 15, 2013 Page 10 SUBJECT DISCUSSION ACTION u. Timothy John Tobin (Deputy Prosecuting Attorney) v. Gary Lee Nelson (Deputy Prosecuting Attorney) w. Melinda Kathleen Mendes (Deputy Prosecuting Attorney) x. Harold Daniel Brown (Fire Commission) y. Steven Ashley Hunt(Director of Finance) Mr. Hubbard asked if the Board requires every source of income be listed or only those sources over $10,000. Chair Clark said she thought you list the source of income and if it is less than $10,000 you do not have to say what it is and if it is more than $100,000 you list it as greater than $100,000. The form does say to list all your employers but that does not help if someone is self-employed. Based on what Mr. Blake submitted, Mr. Perry said the disclosure would be deemed complete unless the Board finds information otherwise where they can then go back to that person. Mr. Perry pointed out that Council Chair Furfaro stated he had not represented anyone since 2010 but the request is to list(representation)for the past 5 years. Chair Furfaro stated the Board does have his previous disclosure and he also did not list income under $10,000 so he is confused now. Mr. Perry suggested relative to the 2010 date Mr. Furfaro can list on his disclosure "for prior representation see prior submission". Mr. Perry also stated that he did not think Councilmember Yukimura's form was complete because there was nothing listed for the Youth Council for which she just sent a letter to this Board. Mr. Hubbard said it is not a Board,just an initiative. Mr. Perry asked how he could rule her disclosure as deemed complete when at this meeting he heard about the Youth Council. Chair Clark then read the request for Item V of the Disclosure. Mr. Hubbard said technically it is just an advisory board. Mr. Nagano said it is still an organization. Keiki to Career is an initiative, it is not an organization. KPA is an organization. Mr. Akamine moved to deem complete and receive disclosures a. through y. with the exception of m. Mr. Na ano seconded the Board of Ethics Open Session February 15, 2013 Page 11 SUBJECT DISCUSSION ACTION motion. Motion carried 6:0 Mr. Hubbard moved to deem complete and receive disclosure m. Mr. Weil seconded the motion. Mr. Perry stated Ms. Yukimura's letter refers to the attached Leadership Council Charter and she is a member of that organization and in so many words is a director of that organization. Mr. Hubbard withdrew his motion. Mr. Weil withdrew his second. Mr. Akamine noted it would be helpful to the Board if disclosures could be completed with either a zero or some indication of current annual income. Ms. Davis said the people could be called back in to complete the sections but keep in mind that disclosures are sometimes mailed in or sent via inter- office mail and the office does not always see the applicant. In the case of Mr. Blake, he was a County Council appointee and they forwarded the disclosure to our office. Mr. Hubbard said maybe this Board should review how to complete the form because in the past they had to write N/A but a previous Board got rid of that because everyone was leaving it blank and the forms had to be sent back. Mr. Hubbard said he was not saying either way was right or wrong. It was noted for the record that Mr. Furfaro was present at the meeting and clarified that he had resigned from all boards since 2010. Executive Attorney Clark read the purpose for the Board to Session go into Executive Session for items ES-001, ES- 2, ES-3, ES-7, ES-8 and ES-002 as fully described in the posted agenda. Mr. Perry moved to go into Executive Session at 2:41 p.m. Mr. Akamine seconded the motion. Motion carried 6:0 Return to Open I Ratify Board of Ethics actions taken in Executive Session for items: Board of Ethics Open Session February 15, 2013 Page 12 SUBJECT DISCUSSION ACTION Session ES-001, ES-2, ES-3, ES-7. ES-8 and ES-002 Mr. Akamine moved to ratify the Board's actions taken in Executive Session. Mr. Weil seconded the motion. Motion carried 6:0 Announcements Chair Clark asked if it would be agreeable for the Board Members to change the meeting time on March 15 to 9:00 a.m. instead of the scheduled 1:30 p.m. The Board agreed to meet at 9:00 a.m. on March 15. March agenda to include consideration of future meeting days and times. Adjournment Chair Clark adjourned the meeting at 3:25 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Kathy Clark, Chair O Approved as is. O Approved with amendments. See minutes of meeting.