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HomeMy WebLinkAbout2013_0823_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 10/25/13 Board/Committee: BOARD OF ETHICS Meeting Date I August 23, 2013 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. End of Meeting: 2:15 p.m. Present Chair Kathy Clark; Secretary Warren Perry; Members: Kurt Akamine; Paul Weil Also: Deputy County Attorney Nicholas Courson; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura, Deputy County Engineer Lyle Tabata Excused Vice -Chair Calvin Murashige; Members Mark Hubbard and Brad Nagano Absent SUBJECT DISCUSSION ACTION Call To Order Chair Clark called the meeting to order at 1:00 p.m. with 4 members present which constituted a quorum. Approval of Minutes Regular Open Session Minutes of July 19, 2013 Deferred to 9/20/13 meeting due to Mr. Weil's abstention and lack of a majority vote. Request for Advisory Opinion RAO 13 -006 Request dated Julv 29, 2013, from Lvle Tabata, Deputv Chair Clark recused herself on this item and requested a deferral to the September meeting for lack of a majority vote. County Engineer for the Department of Public Works, as to whether there is a conflict of interest for him to act as the RME for a local General Contracting firm while acting in his current capacitv for the Department of Public Works RAO 13 -007 Letter dated August 12, 2013, from Wavne Katavama, Planning Commissioner, requesting an advisory opinion regarding whether he may accept a request from the County Clerk (on behalf of Councilmember Gary Hooser) to appear before the County Council's Economic Development (Sustainability /Agriculture /Food /Energy) & Intergovernmental Relations Committee regarding Bill No. 2491 to answer questions related to the possible impact the Bill may have on Kauai Coffee Company and for his input as stakeholder on the island Board of Ethics Open Session August 23, 2013 Page 2 SUBJECT DISCUSSION ACTION Deputy Attorney Courson stated that Mr. Katayama sent his apologies for his absence. Attorney Courson said that Section 20.02 D of the Charter states that officers shall not appear in behalf of private interests before any county board, commission, or agency. Mr. Katayama is technically an officer since he is a Planning Commissioner. County Attorney opinions in the past have consistently been that the Charter has to be read in conjunction with the Ordinances because the Charter says the Council shall by ordinance adopt and make from time to time, revise, and amend such complimentary provisions as may be necessary to supplement the Code of Ethics (Section 20.04 D). Section 3 -1.7, County Code, covers conflicts of interest. Mr. Katayama has been asked to speak on the GMO bill and government employees do give up some of their rights to the First Amendment protections, even an unpaid volunteer who is an officer of the County. Traditionally even a government employee is allowed to speak on matters of public concern that do not relate to his job. The GMO bill is certainly a matter of public concern on this island and Mr. Katayama's job, as far as the government goes, is a Planning Commissioner and the two do not intersect. It is the opinion of the County Attorney, to apply this rule against a Planning Commissioner in this context is a possible Constitutional violation but that advice puts this Board in a difficult position because if the vote is that it is not a violation, it technically is. To do a motion based on Counsel's advice the Board would not render an opinion. Attorney Courson explained that there was nothing nefarious going on or any real gain with this request. If we allow that to be the rule we run into some Constitutional problems and practical problems where you get absurd results; you volunteer to be on a board or commission and you cannot speak. Private interest can be defined quite broadly. Mr. Weil asked what Constitutional interests were being violated. Attorney Courson said the First Amendment right to freedom of speech. Mr. Weil said no one was stopping him from speaking; it is a limited appearance in Board of Ethics Open Session August 23, 2013 Page 3 SUBJECT DISCUSSION ACTION which he carries the imprimatur of being a County employee. Attorney Courson said, in general a public employee or not, just because you became a public employee does not mean you are not allowed to speak publically. There is no de facto rule that says public employee — no right to speak. Mr. Weil said he reacted because Counsel used that phrase as if it was all encompassing and overpowering. Based on Counsel's advice, Chair Clark asked for a motion that the Board would not be rendering an opinion. Mr. Perry made the motion that there was no conflict. Motion died for lack of a second. Mr. Akamine made the motion that the Board of Ethics does not render an Advisory Opinion on the matter of RAO 13 -007. Mr. Weil seconded the motion for the purpose of discussion. Mr. Akamine asked what the ramifications would be for the Board of Ethics or the County if an Advisory Opinion is not rendered; is there anything that requires the Board to render an Advisory Opinion. Attorney Courson said not that he was aware of. If an Advisory Opinion is not rendered it would be a finding of no breach in this instance; it would not be setting a precedence. Attorney Courson said if the Board votes that this is a conflict, but Mr. Katayama appears anyway and says he is not resigning from the Planning Commission, and the Board has to deal with this as a Charter violation it could be raised that he has freedom of speech and counters with a 1983 lawsuit in which it becomes a real problem. The downsides of allowing him to speak when the Council has specifically twice requested him seems to be nil versus what the Board risks. As a fallback position he can get by the conflict rules but he can't get by the over - arching "you can't talk if you happen to be a County employee ". Mr. Akamine said if the Board may be at risk if they go one way or the Board of Ethics Open Session August 23, 2013 Page 4 SUBJECT DISCUSSION ACTION other should this be put as an Executive Session to hear from the Counsel for the Board. Attorney Courson said they could but he would only be expounding on what has already been said. Mr. Weil did not think the Board would get anything different from what has already been said. Mr. Weil asked what doors they were opening as to future requests if the Board does not render an opinion. Attorney Courson did not believe there would be any because if a request lapse for any number of reasons then it lapse; there is no opinion and that particular action is valid, but there is no precedential value so it is not opening a door. Mr. Perry pointed out it was not a matter that Mr. Katayama wants to speak in front of the County Council. He is being asked to share whatever information he has as a professional for the benefit of the County Council. In looking at the provision "appear" Mr. Perry said he looks at "in behalf of private interest ". He is not appearing in behalf of private interest; there is no representation, there is no advocacy on the part of Kaua'i Coffee. Mr. Perry does not see any conflict when any member of a board or commission is requested by the County Council to provide information. He would not be violating appearing in behalf of private interest. Mr. Perry said the Board should not duck their responsibilities; they have the Code of Ethics, the ordinances and the Rules of Practice and Procedure. Mr. Akamine said this particular Bill (No. 249 1) does affect Mr. Katayama's place of employment. Based on that argument there is a conflict of interest, not directly, but indirectly based on his testimony, which may influence how the Council votes on this matter. Attorney Courson asked if the conflict was within Mr. Katayama's capacity as a Planning Commissioner because it has to be viewed from that nexus, Board of Ethics Open Session August 23, 2013 Page 5 SUBJECT DISCUSSION ACTION not that he is Kaua'i Coffee. Mr. Akamine pointed out that several years ago the Board issued an Advisory Opinion on the same issue that no employee or officer of the County can appear. Mr. Akamine said he understood that as related to or unrelated to their capacity. Attorney Courson said he did see that opinion, but believes that rule is too broad and will run afoul of first amendment protections because government workers do not give up all their rights; particularly on matters of public concern. Mr. Perry said any legislation passed by our County affects each and every single one of us —the budget bill, taxes. This piece of legislation may affect Kaua'i Coffee, but it will affect anybody who is in the (inaudible). The question is whether Mr. Katayama is advocating, representing, or appearing in behalf of; he is not, he is providing information, given his expertise, and therefore Mr. Perry did not see a conflict. Mr. Weil said what Mr. Perry said raises the question of why does Council want Mr. Katayama's opinion if not because of his involvement with Kaua'i Coffee. Mr. Perry said the letter requests Mr. Katayama's presence to answer questions related to the possible impact the Bill may have on Kaua'i Coffee Company and his input as a stakeholder on the island. Motion that the Board of Ethics does not render an Advisory Opinion on the matter of RAO 13- 007 failed 3:1 (nay - Perry) Attorney Courson said the issue with deferring this matter in terms of avoiding a possible lawsuit, Mr. Katayama has been requested to speak September 9. Mr. Katayama will not have an answer and be forced to choose either to appear and possibly fact a conflict or quit the Planning Board of Ethics Open Session August 23, 2013 Page 6 SUBJECT DISCUSSION ACTION Commission) and remove the conflict. If he is forced to quit that is an issue as well. Mr. Weil stated for the record his vote was based solely upon Counsel's expressed opinions and no other basis because he thinks there is a conflict. Mr. Akamine suggested that if there is a matter of public and County importance that the Chair considers scheduling a special meeting before September 9 to address this request. Disclosure a. Hugh A. Strom (Board of Water Supply) Mr. Akamine moved to receive Disclosure a. and deem complete. Mr. Perry seconded the motion. Motion carried 4:0 Executive Attorney Courson read the purpose for the Board Session to go into Executive Session for items ES -012, ES -013, ES -7, ES -002 and ES -011 as fully described in the posted agenda. Mr. Akamine moved to go into Executive Session at 1:24 p.m. Mr. Perry seconded the motion. Motion carried 4:0 Mr. Akamine moved to invite staff and guests as required into the meeting. Mr. Perry seconded the motion. Motion carried 4:0 Return to Open Ratify Board of Ethics actions taken in Executive Session for items: The Board resumed in Open Session at 2:11 p.m. ES -012, ES -013, ES -7. ES -002, and ES -011 Session Mr. Perry moved to ratify the Board's actions taken in Executive Session. ES -012 and ES -013 — Executive Minutes of 6/21 and 7/19 deferred to September for lack of a majority vote Board of Ethics Open Session August 23, 2013 Page 7 SUBJECT DISCUSSION ACTION ES -7 — Informal hearing concluded; findings to be issued ES -002 — On -going ES -011 — On -going Mr. Akamine seconded the motion. Motion carried 4:0 Announcements Chair Clark noted that on advice from Council, the Board should look at a special meeting to reconsider the Katayama issue. Staff to check availabilities and schedule a meeting accordingly before September 9 Neat Regular Meeting: Friday, September 20, 2013 — 1:00 p.m. Adjournment Mr. Perry moved to adjourn the meeting at 2:15 p.m. Mr. Akamine seconded the motion. Motion carried 4:0 Submitted by: Barbara Davis, Staff Support Clerk O Approved as is. O Approved with amendments. See minutes of Reviewed and Approved by: meeting. Kathy Clark, Chair