Loading...
HomeMy WebLinkAbout2013_0920_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 10/25/13 Board/Committee: BOARD OF ETHICS Meeting Date I September 20, 2013 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. I End of Meeting: 2:36 p.m. Present Chair Kathy Clark; Vice -Chair Calvin Murashige; Secretary Warren Perry; Members: Mark Hubbard; Brad Nagano; Paul Weil Staff: Deputy County Attorney Nicholas Courson; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura Also: Deputy County Engineer Lyle Tabata, Council Chair Jay Furfaro; Director of Communications Beth Tokioka; Audience Member Rob Abrew Excused Member: Kurt Akamine Absent SUBJECT DISCUSSION ACTION Call To Order Chair Clark called the meeting to order at 1:00 p.m. with 6 members present. Approval of Regular Open Session Minutes of July 19, 2013 (Deferred 8/23/13 for lack of a majority vote) Minutes Mr. Perry moved to approve the minutes as circulated. Mr. Nagano seconded the motion. Motion carried 5:1 (abstain -Weil) Regular Open Session Minutes of August 23, 2013 Mr. Perry moved to approve the minutes of August 23`d. Mr. Nagano seconded the motion. Minutes deferred to 10/25/13 meeting due to 3 abstaining votes and lack of a majority vote. Request for RAO 13 -006 Request dated Julv 29, 2013, from Lvle Tabata, Deputy Countv Engineer for the Department of Public Works, as to whether there is Advisory a conflict of interest for him to act as the RME for a local General Opinion Contracting firm while acting in his current capacitv for the Department of Public Works (Deferred 8/23/13 for lack of a majoritv vote) Chair Clark advised the Board she would recuse from voting on this request. Mr. Murashige asked if RME stood for Responsible Managing Employee to which Mr. Tabata replied yes. Asked if in that capacity he was an employee of the local general contracting firm to which Mr. Tabata said he Board of Ethics Open Session September 20, 2013 Page 2 SUBJECT DISCUSSION ACTION will be, yes. Mr. Weil asked if the firm contracts with the County. Mr. Tabata said they will not be contracting anything with the County if he is allowed to act as the RME. Chair Clark called for a motion in order for the Board to continue discussion. Mr. Hubbard moved that the Board of Ethics find no inherent conflict of interest in this situation. Motion failed for lack of a second. Mr. Murashige requested permission to raise a question to Counsel asking if there is any provision in the Charter prohibiting an employee from having another job. Attorney Courson said not that he is aware of as long as it does not touch on your County work and you are not performing that job during County hours. Mr. Perry moved that the Board find there is no conflict. Mr. Hubbard seconded the motion for discussion purposes. Mr. Perry thought they were dealing with two sections of the Ethics Code. The first is an officer or employee cannot use his official position to acquire special benefits, privileges or exemption for himself or others (Charter §22.02 E), and the reason why Mr. Hubbard made the motion as such that there is no inherent conflict. The second provision says any elected official, appointed officer, employee, or any member of a board or commission who possesses or acquires such interest as might reasonably tend to create a conflict (Charter §20.04 B), and in Mr. Tabata's role as a County officer or employee working for the Department of Public Works, someone could say it may reasonably tend to create a conflict, ( ... ) in any matter pending before him shall make full disclosure of the conflict ( ... ) and shall not participate in said matter. That is the reason, in and of its self, Mr. Tabata's dual positions do not create a conflict, but if he does something that gives special benefit to him or someone else or he is deciding on something that Board of Ethics Open Session September 20, 2013 Page 3 SUBJECT DISCUSSION ACTION may reasonably tend to create a conflict then the Board of Ethics has problems. There is no information relative to Mr. Tabata using his official position to gain a special benefit nor is there information relative to a matter pending before him that he has not made full disclosure. That is why relative to this there is no conflict and the reason for this motion. Mr. Murashige asked the other Board members if it would be different if the person seeking the Advisory Opinion was an employee as opposed to a Department Head or Deputy Department Head. Mr. Hubbard said it makes him think twice because it is a Department Head, but he comes to the same conclusion. With an employee, inherently it would not be a conflict. Mr. Weil said any opinion in matters like this must include a reference to not only the fact that further activity might raise a conflict and might require disclosure, but that the opinion is specifically subject to those conditions. Mr. Nagano asked what the hours of employment would be at the General Contracting firm. Mr. Tabata said the hours would be outside of whatever he needs to do for the County, but if he would need to take time off during normal work hours it would be taken as vacation. Motion that the Board finds no conflict carried 5:1 abstain -Clark Mr. Perry moved to receive items RAO 13 -008 and RAO 13 -009. Mr. Murashige seconded the motion. Motion carried 6:0 RAO 13 -008 Letter dated August 13. 2013, from Jav Furfaro. Countv Council Chair, requesting an advisory opinion as to whether or not a conflict of interest exists with respect to a position that he has been offered on the Board of Directors of the Kauai North Shore Communitv Foundation ( "KNSCF ") Mr. Furfaro stated that he has been asked to participate in this Foundation and is concerned because this Foundation will be dealing with "gifted" Board of Ethics Open Session September 20, 2013 Page 4 SUBJECT DISCUSSION ACTION items for the North Shore community, which might include expansion of the North Shore bike path; it might include improvements to playground facilities, ballparks; it might possibly contribute to activities in a leadership role in which he was already exempted from once due to the fact that he had a position on the County Council. This is a new Foundation and there might be a possibility that something comes before the County Council, especially in the way of gifts, and if it is simply recusing himself from voting on that items that is probably the best approach. If the Board has challenges with that he would like to hear directly from them. Mr. Hubbard moved that the Board find no inherent conflict of interest for Jay Furfaro to be on the Board of Directors of Kaua'i North Shore Community Foundation providing he recuses himself in the event of gifts or grants to or from the County Council. Mr. Perry seconded the Mr. Perry said they have nothing that shows any special benefit or working motion. on something in which there may be a conflict. Mr. Furfaro's statement that he would recuse himself, or using the language from the Charter, "not participate" in the matter; that is totally fine; disclosure and not participate. Mr. Furfaro stated that he has been very consistent in updating his disclosure within 30 days after accepting work as a consultant in the resort business or anything else. Motion that the Board finds no conflict carried 6:0 RAO 13 -009 Letter dated August 27. 2013, from Bernard Carvalho. Mayor, requesting an advisory opinion on whether he can accept invitations to the manv island events, as a guest in his official capacity as Mavor Mr. Hubbard moved that the Mayor may accept invitations to the many island events as a guest in his official capacity as Mayor without it being inherently a conflict of interest or a violation of the Code of Ethics. Mr. Na ano seconded the Board of Ethics Open Session September 20, 2013 Page 5 SUBJECT DISCUSSION ACTION motion. Mr. Furfaro said it was more a matter of continuity and consistency on these disclosures. If someone receives a trip to the mainland, Mr. Furfaro said whether it is promoting Kauai as the County Chair or not, he would disclose it. It may not be a gift, but this is something that is worth having some continuity. When contributions are made or gifts are given, we who serve the public, have an option within 30 days to update our disclosure. Mr. Furfaro asked if the Board was waiving the need to do that disclosure. Chair Clark said no. There was a previous request in which the Board voted that the person did have a conflict, and so the Mayor wanted to double check that it is okay for him, in his role as the Mayor, to accept gifts in the form of being invited to attend functions as a guest. Mr. Furfaro said he has turned down invitations across the line in his twelve years on the Council. Mr. Furfaro asked if the Board was waiving for political candidates the simple disclosure of a gift. Chair Clark said the Board has not waived anything. Chair Furfaro asked if he received plane tickets, in his official capacity as a Councilmember, to Molokai for a canoe race would not he disclose that. Mr. Weil stated of course. Attorney Courson said he was not sure where it says gifts are required to be disclosed on the disclosure form. Board members agreed that it was not. The requirements of the Disclosure is a list of all real property within the County in which he or she has any right (...) Mr. Furfaro stated he has always listed gifts. Mr. Weil said the way to distinguish this is in the case of the Mayor, if he is attending a function to deliver a proclamation or otherwise pursuant to his Board of Ethics Open Session September 20, 2013 Page 6 SUBJECT DISCUSSION ACTION duties as the Mayor, it is not a conflict. Accepting tickets to attend an event where he is just a guest in which he is being treated rather than paying his way, to the extent that it is not part of his duties as Mayor or part of Mr. Furfaro's duties as Council Chair, then it is receiving a gift. Mr. Hubbard said the use of the term "gift" and "disclosure" is inappropriate. You cannot accept any gift that is significant if it is reasonably construed that it might influence your actions as a Councilmember. That is what was ruled on before with a different County employee; it was a gift and he could not accept it. You don't have to disclose it; you just can't accept it. What the Board is talking about is an official action, and if the Mayor is being asked to do something it is not a gift so no disclosure. The Board is just clarifying this for the Mayor's Office who became concerned. The Mayor is the one who does most of the official activities and the Council Chair does some so the Board is saying that is okay for the performance of official duties. Chair Furfaro said he heard the Board clear and it should not matter how much one does; it should be consistent. Chair Clark said the roles are different. Chair Furfaro stated the roles are not different; we are all politicians and held to the highest standards possible, and he gets no exception because he is the Mayor. Mr. Perry said there are two sections of the Code of Ethics the Board is dealing with. One is relative to an affirmative act on the part of the employee or official which says "use his or her official position"; use (emphasis) it — something affirmative. The other is a passive sort of thing — because (emphasis) of your official position, you can't accept something. To influence where it could reasonably infer that the gift or benefit could influence you in the performance of your official duties or as a reward for what you have done. Mr. Furfaro said he wanted to make sure the Board understands they cannot Board of Ethics Open Session September 20, 2013 Page 7 SUBJECT DISCUSSION ACTION make an exception for a Mayor and other politicians with this interpretation. Mr. Perry informed the Chair that he was not finished speaking and he was going to relate the two provisions the Board is stuck with applying relative to the Mayor's request. This is more or less in a passive role; people come to the Mayor and say they want or need him to participate. If it is a passive role, the only question is whether the acceptance of whatever gift is going to influence future work or to reward him for past actions taken. Mr. Perry said they all need that analysis in order to be consistent in the future. Relative to this specific request, the duties of the Mayor and representing the County of Kaua'i in these type of functions, Mr. Perry said he did not see a blanket thing that it is a reward for actions taken or to influence his performance in the future, and he would rule in favor of the motion that there is no conflict. Mr. Furfaro said he wished the Board good luck dealing with this because he did not think he got a clear definition of when you are objective and when you are subjective. Chair Clark suggested Mr. Furfaro look at the Board's record, and he would see they are very consistent in how these issues are addressed. Mr. Abrew said his first issue is the Administrative Code and how the County is set up; the Mayor is the top of the County but the Mayor answers to the electors with the electors at the very top. Numerous times in the last ten years the public has been asked about gift giving and disclosure; every time they have applied the strict Charter to those conditions. Our Charter has an area about gifts and disclosures; the Code has the same thing - all these documents specify anything of a value that can reasonably be inferred. In the Mayor's letter he asked if this is part of the scope of his duty; Mr. Abrew asked if anyone on the Board can point to where in the scope of the Mayor's duty it allows him to go to private interests and accept valuable gifts. If the Mayor asks to go to their fundraiser, be given free tickets to their fundraiser, and be a part of their table —this is a private interest; it is not a government function. The Mayor has a choice and it is only the Board of Ethics Open Session September 20, 2013 Page 8 SUBJECT DISCUSSION ACTION Mayor's choice, but he can decline the invitation because there is a value and it could be seen as taking sides for a non - profit organization or a private enterprise or it could influence him in the future. If the Mayor accepts an invitation and someone files a complaint, then the Board can deal with it. The Board does not give the Mayor the wide opportunity to go to all the events of the island and have the "free get out of jail" card that this Advisory Opinion came to. This body is not the only body that functions as the keeper of disclosures; there are three entities in this County — it is this Board, it is the Council and it is the Mayor —they all oversee disclosures; not just this body. Mr. Murashige said the County Charter and the sections pertaining to Ethics were not written by this Board; the Board is authorized, empowered and responsible for enforcing it. If the Mayor and the Council sign a more stringent provision the Board will apply more stringent requirements. As it is written right now the Board sees whether or not the situation falls outside the provisions and acts accordingly. Mr. Perry told Mr. Abrew that he appreciated his comments but the way the Charter and the Code of Ordinance reads has nothing to do with value. You don't receive anything (emphasis) ( ... ) under circumstances where it can reasonably be inferred ( ... ) The Board has to look at the circumstances as to whether it was something to influence official action or reward for official action. Politicians do receive these types of requests, and it is their responsibility under threat that the Board will review it to see whether it could have been reasonably inferred that it was to influence official action or as a reward for official action. Mr. Abrew wanted to know if they have to disclose it on their official disclosure. Mr. Perry repeated again that the test is can it reasonably be inferred that it was to influence official action or as a reward for official action; the Board is not giving carte blanche to the Mayor or an one to receive anything. Board of Ethics Open Session September 20, 2013 Page 9 SUBJECT DISCUSSION ACTION Ms. Tokioka wanted to clarify what was being asked when the Mayor made his advisory request. When the Advisory Opinion for Mr. Trask came out the situation the Board ruled on is very similar to something the Mayor deals with every day, which is invitations he receives from community organizations primarily to attend their various functions. Many times it is a dinner and there is a charge associated with the dinner; he is invited to attend and sit with the host table or to give a proclamation or something along those lines. These are not things the Mayor is necessarily seeking out; they are invitations that come in to him. The Mayor feels very strongly because they are from the residents of the County of Kaua'i, and for the most part are non - profit organizations that do good things for the community. He wants to be there to show support, and if asked to give a proclamation he is happy to do so. Many times he does not stay for the dinner as he is off to the neat event or two in the same evening. That is the concern as to how it would apply to him after seeing the Advisory Opinion. Mr. Hubbard said he sees a very distinct difference between the Board's previous ruling and the current motion on the table. The previous person was not acting in his official capacity; he was just invited to sit at the table. The Mayor very often gets invited in his official capacity, which is the big difference. It is not a get out of jail free card, and it is not just because he is the Mayor; the Board has to think of the official capacity in addition to reasonably inferred. Mr. Weil asked Mr. Hubbard if he was saying official capacity means that he is there to perform an official duty such as presenting a proclamation or just there to have dinner. Mr. Perry asked if giving a proclamation isn't an official action performance to be taken. Motion that no conflict be found for the Mayor to accept invitations in his official capacity as Mayor carried 6:0 Board of Ethics Open Session September 20, 2013 Page 10 SUBJECT DISCUSSION ACTION Business BOE 2013 -11 Discussion and possible recommendations regarding the County Council's proposed Bill No. 2497 amending the Kaua'i County Code as relates to the registration and regulation of lobbvists Mr. Hubbard questioned the reason this item was placed on the agenda. Staff advised the Board that this is on the County Council's agenda for a public hearing on September 25, and because it affects the Board of Ethics the Boards and Commissions Office felt they should at least be aware of it. Chair Clark said in some counties this duty resides with the Board of Ethics and in others it is with the County Clerk. Asked who the writer of this Bill is, Mr. Furfaro said he was the writer and it comes from a situation where people had been secured as lobbyists, but were not qualified for their registration as lobbyists. Chair Clark asked when he wrote this, how Mr. Furfaro envisioned that the Board would be able to police this. Mr. Furfaro said practicing some safety in the sense that the piece had been reviewed by the Board of Ethics before it went into dialogue on the floor in Committee. Staff explained to Mr. Furfaro that Mona Clark drafted a proposal just before she retired, but it got into Council's hands before the Board saw the proposal. Mr. Furfaro said it just came out of Committee and goes to public hearing this week and then goes back to the full Council. This is an opportunity for the Board to provide feedback to the Council. Mr. Perry felt the Board needed more time to study the proposed Bill. Mr. Hubbard noted that the purpose of this Bill was so the Council decision makers and general public would have the right to know upon whose behalf an individual is presenting testimony, and he asked if that is a problem. Mr. Furfaro said it could be if they select someone only to find out they also represent someone like Sygenta in the current GMO issue. Board of Ethics Open Session September 20, 2013 Page 11 SUBJECT DISCUSSION ACTION Mr. Hubbard asked if there are rules requiring lobbyists to register now. Mr. Furfaro said it is very clear there are rules for them to be registered as official lobbyists, and unfortunately there was an incident where a company was secured, not by the Council, to represent the County of Kaua'i and had some of their credentials expire on them. Mr. Hubbard said he started reading the proposed Bill, but did not know where the Board of Ethics fit in or why. Attorney Courson said there are rules on lobbyists' disclosure on the State level. The Hawai'i Constitution requires all political subdivisions to have rules on lobbyists in their Code of Ethics, and it appears Kaua'i does not have anything even though we are required to. The State Constitution does not say the Board of Ethics has to be responsible; it just says it needs to be in the Code of Ethics, and the Board of Ethics administers the Code of Ethics. Chair Clark said from her perspective it is the Staff who become the police for this, and asked how they would know who is a lobbyist. Mr. Furfaro said this is an ahahana koko lele (shame on you) moment. These people were not exactly clear to the administration when they were secured as our lobbyists. The discussion we had with Mona before she left was that we wanted to tighten this up. Chair Furfaro then apologized to the Board that this did not come to them in its earlier draft after it got through the first reading with the Council. He noted this is the opportunity for the Board to comment before it goes through public hearing, and asked if there is something the Board would like to see. Mr. Furfaro said he thought the enforcement comes through the fact that obviously if the County Attorney's Office knows that Administration has secured a lobbyist that all their credentials are in order first of all, and that is where the responsibility starts. If something is done unethically and someone wants to file a complaint, it Board of Ethics Open Session September 20, 2013 Page 12 SUBJECT DISCUSSION ACTION would be filed with the Board of Ethics. Chair Clark said she may have missed the point that this is only for County lobbyists and not every lobbyist who lives on Kauai. Mr. Weil said he sees the information gap is that the Board does not know who the registered lobbyists are, they have no means of checking on that, and somehow are to be made responsible for it. Mr. Furfaro said when we enter into an agreement or a contract with a lobbyist company that contract is reviewed by the County Attorney's Office. They will be the first point of checking for flaws, things that are expired. If someone brought a complaint and everything was in order then it would come to the Board; that is the intent. Mr. Murashige asked when the statute was first passed requiring the counties to have their own provision regarding lobbyists. Attorney Courson said it looked like it was added in 1978. Ms. Morikami told the Board that when she was a lobbyist in the late 1980's and early 1990's she was required to file a lobbyist form with the County Clerk's Office who provided the form. She stated she is unaware what has happened from that point on. There was an article in Civil Beat saying that Kauai County is the only county in the State that is not abiding by the Hawaii State Constitution and that lobbyists do not have to register in the County. We are trying to correct the problem, which is why there is this draft Bill. Mr. Murashige said he would feel more comfortable reviewing the provisions in the other counties' charters and how they address it. He did not know if this copied what others have done or if it is different, but it would help to have something to compare. Mr. Furfaro said when this Bill goes to public hearing the Council does not Board of Ethics Open Session September 20, 2013 Page 13 SUBJECT DISCUSSION ACTION interact, they just take testimony. If the Board would like the Council to defer the Bill they should send a letter to Mr. Furfaro asking for a deferral until the Board has an opportunity to review it. Ms. Morikami said in reference to Mr. Murashige's question, she did check with the other three counties. The City and County of Honolulu and Maui County, their Ethics Board or Commission handles the applications, the filings and any violations; for Hawaii County it is the County Clerk's Office. This information will be included in the neat Board packet. Mr. Murashige moved to send a letter to the Council Chair asking them to defer action on this Bill. Mr. Nagano seconded the motion. Mr. Furfaro said it is the Council's hope that between the County Attorney's Office and the Ethics Commission you will accept that responsibility. Mr. Hubbard said he saw no reason to defer. A violation will come to the Board of Ethics with or without this law and it needs to be deliberated by the County Council. Motion carried 5:1 (nay- Hubbard) Mr. Weil said he could not find a cross reference in this Bill to compliance with the State Law. Mr. Furfaro said he heard the query and would send the question to the County Attorney and hopefully he will get it to the Board by the October 18th meeting. Mr. Furfaro said he could on his own defer Council action for four weeks and not take any action until after October 26. Disclosures a. George White (Deputy Prosecuting Attomev) b. Richard Jose (Civil Service Commission) c. Anne Schneider (Historic Preservation Review Commission) d. Gerald Ranozo (Director of Liquor Control) e. Joel Guy (Charter Commission Board of Ethics Open Session September 20, 2013 Page 14 SUBJECT DISCUSSION ACTION f Stephen Hall (Deputy Countv Attomev) Mr. Perry moved to receive Disclosures a. through f. and deem them complete. Mr. Nagano seconded the motion. Motion carried 6:0 Executive Mr. Perry asked Attorney Courson how specific the Board has to be on Session identifying why they are going into Executive Session. Attorney Courson said the Board should be as specific as they can be without giving anything away that defeats the lawful purpose of going into Executive Session. The public can make a UIPA (Uniform Information Practices Act) request, which would be analyzed by the assigned attorney to determine if the lawful purpose for confidentiality still remains. In many cases the minutes may never be releasable such as when consulting with your attorney about your liabilities or when there is an ethics complaint against a person unless that person chooses to have an open hearing. The two main reasons this Board goes into Executive session is for personnel issues /complaints and to confer with the attorney. Mr. Perry moved to go into Executive Session at 2:19 p.m. and to invite staff and guests as required into the meeting. Mr. Murashige seconded the motion. Motion carried 6:0 Attorney Courson read the purpose for the Board to go into Executive Session for items ES -012, ES -013, ES -014, ES -002, and ES -011 as fully described in the posted agenda. Return to Open Ratify Board of Ethics actions taken in Executive Session for items: The meeting resumed in Open Session at 2:33 ES -012, ES -013, ES -014, ES -002, and ES -011 Session p.m. Mr. Weil moved to ratify actions taken in Executive Session. Mr. Murashige seconded the motion. ES -012 — Approved as circulated ES -013 — Approved as circulated Board of Ethics Open Session September 20, 2013 Page 15 SUBJECT DISCUSSION ACTION ES -014 —Deferred to October ES -002 — On -going ES -011 — Board to refer findings to appropriate agency Announcements Neat Meeting: Friday, October 18, 2013 Chair Clark stated she would not be available to attend the meeting on the 18th. Mr. Murashige noted he would not be returning to Kauai until 12:00 p.m. on the 18t. Staff to check date and room availability to reschedule October meeting Adjournment Chair Clark adjourned the meeting at 2:36 p.m. 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