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HomeMy WebLinkAbout2013_0315_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 4/19/13 Board/Committee: BOARD OF ETHICS Meeting Date March 15, 2013 Location Mo `ikeha Building, Liquor Conference Room 3 Start of Meeting: 9 :00 a.m. I End of Meeting: 11 : 17 a.m. Present Chair Kathy Clark; Vice-Chair Calvin Murashige; 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; Imaikalani Ain Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Clark called the meeting to order at 9 :00 a.m. with a quorum of 7 members present. Approval of Regular Open Session Minutes of February 15. 2013 Mr. Nagano moved to approve the minutes as Minutes circulated. Mr. Akamine seconded the motion. Motion carried 6: 1 (abstain-Murashige) Communications BOE 2013-05 Memorandum dated February 27. 2013, from Jav Furfaro, Council Chair, regarding a possible Conflict of Interest regarding ES-602 on the February 27. 2013 Council Meeting Agenda Mr. Akamine moved to receive the communication. Mr. Murashige seconded the motion. Motion carried 7:0 Request for RAO 13-002 Request dated February 12. 2013 from Imaikalani Ain, Advisory Special Assistant to the Housing Director for an Advisory Opinion as to Opinion whether there is a conflict of interest with his Countv emplovment and an appointed volunteer position as a Department of Hawaiian Homelands Commissioner Mr. Hubbard asked Mr. Ain if he would anticipate any situation that might arise where he would have discretionary authority that would impact both organizations such that there might be a conflict of interest. Mr. Ain said in particular, things like legislative matters in which the Department of Hawaiian Homelands has supported legislation that requires housing Board of Ethics Open Session March 15, 2013 Page 2 SUBJECT DISCUSSION ACTION credits from the County and the County has thought those exactions were too extreme. Mr. Ain stated he does not hold any authority on the County side or speak for the County Housing Agency; that authority lies under the discretion of the Director, ultimately. Mr. Ain does not approve the legislative package but as commissioners they are responsible for accepting, endorsing, and making changes to the legislative package if needed. Ultimately that authority rests with the State Legislature and it is only the position that the Commission takes. In those matters, Mr. Ain does recuse himself. Attorney Clark asked Mr. Ain to provide more information about his statement that he has engaged with the County in discussions on various collaborations in his capacity as a commissioner. Mr. Ain said two in particular they are looking at is an inventory of lands that the County obtained from the State and is looking to partner with the Department of Hawaiian Homelands to develop a small agriculture project on one of those parcels. The other is in Anahola where they are looking to partner with DHHL to restore the irrigation systems in return for some agricultural use. That is still in the very conceptual stage but Mr. Ain has been engaged in discussions with the Department, acting on both hats. Mr. Akamine moved that the Board find there is no conflict of interest. Mr. Perry seconded the motion. Mr. Hubbard said in and of itself there is no conflict but there could be situational conflicts arising in which case Mr. Ain should recuse himself and Mr. Hubbard would like that caveat in the finding; however, holding two positions in itself would not be a conflict. Mr. Perry felt that was understood. Mr. Akamine pointed out that Mr. Ain did say on those occasions he would recuse himself. Attorney Clark asked for clarification noting for those occasions where there is a conflict, Mr. Ain said he would recuse himself but the paragraph Board of Ethics Open Session March 15, 2013 Page 3 SUBJECT DISCUSSION ACTION on page 2 of Mr. Aiu's letter indicates he is acting in both capacities and asked if he did not consider that as a conflict. Mr. Ain said no because those are engaging in or proposing partnerships that would be mutually beneficial to both entities or that is at least the goal. Attorney Clark said he would be representing both entities in those discussions to which Mr. Ain said yes. Mr. Hubbard thought Mr. Ain should not make decisions for either party but he could be a mediator for both sides. Mr. Ain said he understood. Mr. Ain further said when it comes to a formal vote he plans to recuse himself. Mr. Weil said unless the letter strongly states the views Mr. Hubbard expressed, and with which Mr. Weil agrees, he would vote no on finding no conflict. Chair Clark asked if Mr. Akamine wanted to amend his motion to include Mr. Hubbard's suggestion. Mr. Akamine said Mr. Ain had stated in some situations he would represent both parties and wondered if that would be a conflict. Mr. Ain said it is more in the moderation and facilitation capacity of knowing the interests of both entities of the County and the Trust and looking for opportunities to bring them together where they can help each other out. When it comes to actual action items put before a vote for the Hawaiian Homes Commission, Mr. Ain said he would have to recuse himself because he would carry an interest from the County side. Attorney Clark pointed out 20.04 B on matters that come before someone, the person shall make a full disclosure of the conflict and not participate. Whether there is an alignment of interest is going to be a question of fact and someone will have to determine that question of fact and you want the person who has the interest on both sides making that determination. Mr. Perry said there was no problem with all the hypothetical things that Board of Ethics Open Session March 15, 2013 Page 4 SUBJECT DISCUSSION ACTION could arise but the one problem he has is the Code of Ordinances in the Code of Ethics is very specific in talking about fee, compensation, financial interest and yet Mr. Perry said he has not heard one thing about this whole matter that says Mr. Ain has a fee or compensation or financial interest. For that reason, Mr. Perry supports the motion. Attorney Clark commented that it is true in the Ordinances but the Charter does not talk about compensation but an interest as might reasonably tend to create a conflict with the duties or authority. Attorney Clark reminded the Board of a prior discussion about non-profit organizations and if only talking about compensation there would never be a conflict if someone is with a non- profit organization. Mr. Perry said that takes him back to his original question when he was first appointed to this Board of what determines the Board's authority and do they apply the Charter's Code of Ethics or the County Code ,which Mr. Ain cited, or the Board's Rules of Practice and Procedure; which takes precedence or does the Board pick and choose. Mr. Hubbard said Mr. Ain mentioned he would have some authority as the Hawaiian Homes Commission but would he ever have any authority on the County side to make some agreement with the Hawaiian Homes. Mr. Ain said no. Mr. Hubbard said the Board needs to determine if there is a conflict on the County side; if he has no authority to make any decisions there is no conflict in and of itself. Mr. Akamine asked Attorney Clark in pointing out 20.04 B, if she was stating there appears to be a conflict. Attorney Clark said you cannot simultaneously represent two different bodies in an action that is before your agency and thought, per se, it was a violation of 20.04 B regardless of whether there is compensation involved and regardless in the grand scheme it might be beneficial to the County. You have to look at and apply the law if there is a conflict. Board of Ethics Open Session March 15, 2013 Page 5 SUBJECT DISCUSSION ACTION Mr. Weil asked if compensation was applied by Mr. Ain being a paid County employee and therefore the loyalty of compensation. Mr. Perry asked what interest Mr. Ain possessed or acquired such as it might reasonably tend to create a conflict with Mr. Aiu's County duties or authorities. Chair Clark pointed out that Mr. Aiu's letter states he is involved in project development, grant funding and legislative efforts. Mr. Perry said that as a member of the Hawaiian Homes Commission that is Mr. Aiu's duty and obligation. Chair Clark said that is actually his position with the Housing Agency. Mr. Perry said Mr. Ain is with the County and he acquires another interest but Mr. Perry said he takes interest as something for personal gain or something that benefits someone. Right now as a member of the Hawaiian Homes Commission that does not entail an interest that Mr. Ain has. Mr. Murashige noted in the example Mr. Ain gave on page 2 that he has engaged with the County in discussions on various collaborations and questioned who he was engaging with as a commissioner for DHHL. Mr. Ain said within the County it is the Office of Economic Development and within the Housing Agency leadership team. Mr. Murashige asked who Mr. Ain is representing to the leadership team, DHHL or the County. Mr. Ain said it is the County. Mr. Murashige asked if there was someone else from DHHL that he was engaged with. Mr. Ain said yes, with the mechanics of DHHL staff has to come into play. Mr. Murashige said in these situations Mr. Ain is acting in the capacity of a County employee. Mr. Ain said when DHHL staff is present, yes. Mr. Murashige said when DHHL staff is not there does he still have discussions regarding DHHL matters. Mr. Ain said yes, he will still say there is an opportunity with DHHL for a partnership and tell the County how he sees it. Mr. Murashige said in that situation where staff from DHHL is not present and Mr. Ain brings up the possibility of partnership, does he look at it from the perspective of the County. Mr. Ain said that he is looking at it from the Board of Ethics Open Session March 15, 2013 Page 6 SUBJECT DISCUSSION ACTION perspective of both; something that is beneficial to the County and to DHHL. Mr. Murashige said he had no problem when Mr. Ain says he works for the County and is looking out for the County's interest but when he says he is looking out for DHHL then it creates a potential conflict. If his discussions involve DHHL and he is looking out for DHHL,there is a conflict. Mr. Weil asked if it was a fact that the staff members report to him. Mr. Ain said no,they report to the Director. Mr. Weil asked through Mr. Ain; Mr. Ain said no. Mr. Weil asked what authority, if any, Mr. Ain has over any of the staff members. Mr. Ain said their authorities are to approve any type of land disposition, to approve budgets, to approve funding requests; they do not have any authority to hire, fire, or discipline any of the staff but they do work with the staff like any board does. All requests are required to go through the chair. Mr. Weil asked if Mr. Aiu's position was senior or junior to theirs. Mr. Ain said it is distinct in the same way the Council is distinct from the Administration or should be. It is the managing board whereas the department is the operations and administration. Motion failed 3 ayes (Hubbard; Perry; Chair Clark called for the vote on the motion of no conflict. Murashige):4 nays (Weil, Nagano, Akamine, Clark) Mr. Nagano moved that the Board find there is a conflict of interest. Mr. Akamine seconded the motion. Motion carried 4 ayes (Weil, Nagano, Akamine, Clark): 3 nays (Hubbard; Perry; Murashige) Attorney Clark asked if the Board wanted to define the areas of conflict or just that overall there is a conflict. Chair Clark said it is impossible to have 2 masters. Mr. Perry said for a matter of clarification and elucidation in Board of Ethics Open Session March 15, 2013 Page 7 SUBJECT DISCUSSION ACTION the future he would like to track the wording of 20.04 B and point out exactly where it is that this situation can give rise to a conflict. Mr. Hubbard asked if they could agree that it is the authority, not the County job, where Mr. Ain would have a conflict and he should not make a decision that benefits someone else in the conflict. Mr. Ain said he has no authority on the County side or the DHHL side. He did discuss this with the Attorney General and there are other employees of other State and other County agencies on the Hawaiian Homes Commission and the AG believes there is no conflict as long as they recuse themselves from motions which involve their agencies or their Counties. Furthermore there is State statute that governs time that a County employee spends with a State Commission so it is already an acknowledged practice by State Law. Attorney Clark said the Board should consider the statement of if it is dealing with your agency or the County that there is a conflict but there is not otherwise. Mr. Murashige said there may be a conflict if dealing with the agency but the County is too broad. Attorney Clark said the only thing before the Board now is the agency that Mr. Ain works for and his position with DHHL. Mr. Akamine said he seconded the motion that there is a conflict and it was stated in general and hence the discussion to clarify. The motion has been voted on and the Board can either ask for reconsideration or there can be another motion made as to the direction for the County Attorney on what was truly meant by the motion. Chair Clark said the motion has carried and thinks that is the answer unless it is brought back for reconsideration. Business BOE 2013-06 Discussion on whether to change meeting times and or dates to best accommodate all Board Members' schedules Morning meetings were preferred by Mr. Nagano and Mr. Weil but very difficult for Chair Clark's schedule with most of her medical staff meetings Board of Ethics Open Session March 15, 2013 Page 8 SUBJECT DISCUSSION ACTION occurring in the mornings. Staff offered the morning of the 3` Monday of each month, the afternoon of the e Thursday, or Friday morning or afternoon. Starting in April, the Board agreed to keep the meetings on the 3`d Friday of the month but move the time up to 1:00 p.m. BOE 2013-07 Discussion and possible decision-making on the Disclosure Statement for Section VII Real Property and whether filers need to disclose the address/TMK for property used for their personal residence Staff explained that concern has been expressed from a board and commission member with listing their personal residence address or TMK number because of sensitive matters they are working on. Staff asked the Board to consider a notation of"personal residence" in this area without identifying the actual location. Attorney Clark said Article XIV of the State Constitution says to list property interests but does not say how it has to be listed. Attorney Clark said another way to deal with it is to redact it as being a privacy interest if there is a request. Mr. Hubbard said under State Law now, a person does not have to disclose their personal residence. Attorney Clark said the way it reads is all financial disclosure statements shall include but not be limited to sources and amounts of income, business ownership, officer and director positions, ownership of real property so it is probably better to have the disclosure (of property) and then redact it for privacy interests than to not have the disclosure at all but it is not specific in that is says ownership of real property has to be disclosed. Mr. Murashige said the purpose of a disclosure is to disclose what interests you may have and to list `personal residence' makes the disclosure meaningless; it makes more sense if there is a need to redact when a request is made. Mr. Perry questioned what the term "list"means as stated in the disclosure Board of Ethics Open Session March 15, 2013 Page 9 SUBJECT DISCUSSION ACTION section of the Charter. Also there was a change to the State statute that filers are no longer required to disclose information about real property that is their personal residence. Mr. Hubbard also questioned Act 135. Mr. Akamine said when the Board receives the disclosure statements the action the Board takes is "to receive and deem complete" so any subsequent requests by the person completing the disclosure can be acted upon then. Mr. Akamine felt the disclosure should be left as it is and upon request check if there is a legal basis to redact it. Ms. Morikami explained that one commission member up for reappointment said when she was on a State board they changed the law where it is no longer required to give your personal address and the Hawai'i State Ethics Commission changed their disclosure form for item 6 and 7 which is interests in real property held/acquired, excluding personal Mr. Hubbard moved to change the disclosure residence(s). statement, item 7 to coincide with the State's disclosure statement specifically excluding personal residences. Mr. Akamine and Mr. Perry simultaneously seconded the motion. Motion carried 7:0 Disclosure a. Karen S. Matsumoto (Civil Service Commission) b. Amy A. Mendonca(Planning Commission) c. Savita Agarwal (Fire Commission) d. John K. Isobe (Planning Commission) e. Pauline D. Ventura(Liquor Control Commission) f Roy M. Morita(Civil Service Commission) g. Duane R. Curammeng(Board of Appeals) h. John H. Murphy (Deputy Prosecutor) i. Dorothea K. Hayashi (Open Space Commission) j. Michael C. Machado (Salary Commission) k. Josephine A. Sokei (Liquor Control Commission) 1. Lisa R. Arin (Deputy Prosecutor) Board of Ethics Open Session March 15, 2013 Page 10 SUBJECT DISCUSSION ACTION m. Kathleen A. Clark(Board of Ethics) n. James R. O'Connor(Police Commission) o. Jan W. TenBruggencate (Charter Review Commission) p. Mona W. Clark(Deputy County Attorney) q. Warren C.R. Perry (Board of Ethics) r. Mary Lou Barela(Charter Review Commission) Mr. Akamine moved to receive the disclosures (a.-r.) and deem complete. Mr. Nagano Mr. Hubbard stated he would like to delete the phrase and deem complete seconded the motion. because the Board does not know if the disclosure is complete but the Board is receiving it. Motion carried 7:0 Mr. Murashige said that while Disclosures were being reviewed he looked at the State's Disclosure form and it is a lot more detailed than Kaua'i's form. Mr. Murashige asked Ms. Morikami why Kaua'i has not copied the State form and she said because of our Charter, Kaua'i's disclosures are not confidential but the other islands, depending on the filer's position, are confidential. Mr. Murashige noted that the State does require a lot more detail than Kaua'i's disclosure. Executive Mr. Murashige moved to go into Executive Session Session at 10:02 a.m. Mr. Akamine seconded the motion. Motion carried 7:0 Attorney Clark read the purpose for the Board to go into Executive Session for items ES-003, ES- 2, ES-3, ES-7, ES-8, ES-002, ES-004 and Es- 005 as fully described in the posted agenda. Return to Open Ratify Board of Ethics actions taken in Executive Session for items: Session ES-003, ES-2, ES-3, ES-7, ES-8, ES-002. ES-004 and ES-005 Mr. Akamine moved to ratify the Board's actions taken in Executive Session. Mr. Hubbard seconded the motion. Motion carried 7:0 Board of Ethics Open Session March 15, 2013 Page 11 SUBJECT DISCUSSION ACTION Announcements Neat Meeting: Friday, April 19, 2013 —1:00 p.m. Mr. Weil advised the Board he would not be in attendance at the April meeting. Adjournment Chair Clark adjourned the meeting at 11:17 a.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.