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HomeMy WebLinkAbout2013_1025_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 11/15/13 Board/Committee: BOARD OF ETHICS Meeting Date I October 25, 2013 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. I End of Meeting: 1:44 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; Deputy County Attorney Stephen Hall 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 August 23, 2013 (Deferred on 9/20 due to Minutes a lack of a majority vote) Mr. Nagano moved to approve the minutes as circulated. Mr. Perry seconded the motion. Motion carried 6:0 Special Session Open Minutes of September 3, 2013 Mr. Hubbard moved to approve the minutes as circulated. Mr. Murashige seconded the motion. Mr. Perry requested a change to Page 1, Line 4 to read Kauai Coffee rather than Kauai County Motion and second were withdrawn. Mr. Hubbard moved to approve the minutes as amended. Mr. Perry seconded the motion. Motion carried 6:0 Regular Open Session Minutes of September 20, 2013 Mr. Weil moved to approve the minutes as circulated. Mr. Hubbard seconded the motion. Motion carried 6:0 Communication BOE 2013 -12 Circular No 13 -18 from Department of Personnel Services regarding Outside Employment Mr. Weil moved to receive and order filed. Mr. Murashige /Mr. Hubbard seconded the motion simultaneously. Board of Ethics Open Session October 25, 2013 Page 2 SUBJECT DISCUSSION ACTION Mr. Hubbard wanted to note that the circular only asks an employee to file if they feel their outside employment is inconsistent or incompatible with or interferes. He was under the impression that in the past the form was sent out every year and requested it be filled out if someone had outside employment. This circular seems to say there is no need to file, but if you want someone to check it then file the form with the department head. Mr. Hubbard said he would like to see yearly, or somewhat periodically, they ask everyone who has outside employment to fill out the form rather than if they feel there may be a question. Chair Clark suggested Mr. Hubbard attend a (Civil Service) Commission meeting and tell them his suggestions as this Board is only going to receive the communication. Mr. Hubbard said it was only a comment; he was not making a motion. Mr. Weil said he agreed with Mr. Hubbard. Motion carried 6:0 Business BOE 2013 -11 Discussion and possible recommendations regarding the County Council's proposed Bill No. 2497 amending the Kauai County Code as relates to the registration and regulation of lobbvists (On- going) a. Countv Codes regulating the registration of Lobbvists for Hawaii Island, Maui Countv and the Citv and Countv of Honolulu Mr. Hubbard moved that the Board have a discussion on this item. Motion failed for lack of a second. Mr. Perry moved that the Board have a discussion with the possibility of making recommendations relative to this agenda item. Mr. Hubbard seconded the motion. Mr. Hubbard questioned the many references to Section 3- 1.5 -5. Attorney Courson noted that while this was drafted by the County Council, he believed the 3 -1 was atypo and should be ignored; it should be read as 4- 5.4 and 4 -5.5. The 3 -1 refers to the Code of Ethics. Mr. Hubbard also Board of Ethics Open Session October 25, 2013 Page 3 SUBJECT DISCUSSION ACTION wanted to know if there is current law for actions by lobbyists in the County Code to which the response was no. There are Federal laws that apply to lobbyists but it is not known how those laws apply to lobbyists appearing before the County Council. Mr. Hubbard pointed out that on Page 2, Item (8) defines a lobbyist as a person but he thought a better definition is the company or firm who engages the lobbyist. Mr. Hubbard also said he was struggling on whether this belongs in the Board of Ethics since it seems to apply only to someone who is lobbying the County Council or the Mayor; it does not seem to apply to anyone who is lobbying the Planning Commission. It applies only when you are making legislation or vetoing or signing something, which is only the Mayor or the County Council. Mr. Murashige pointed out in (9) it references any Administrative action and is defined in 4 -5.2 (1) in conjunction with 4 -5.2 (2). Mr. Hubbard asked if people who lobby at the Planning Commission are covered by this. Mr. Murashige and Chair Clark thought they would be. Mr. Perry pointed out that the other action is noted as governed by Hawaii Revised Statutes (FIRS) Section 91 -3. Mr. Hubbard said as long as the Board is clear that it is all administrative agencies then it would fall within the Board of Ethics; if not, it should fall somewhere else. Mr. Murashige said a lobbyist is also someone who for pay engages, or is engaged, in lobbying or lobbying activities in excess of five hours, but how would the Board know that information; who keeps the records on this? Chair Clark said her biggest question is, is this Board up to policing this? Ms. Morikami shared that she did not think it was a matter of policing, but the Board would get involved if a complaint is filed. The Board would be the keeper of the records, but they would not be obligated to ensure everyone files a disclosure. It is similar to the requirement of when there is any change on a disclosure it is up to the individual to file an update within thirty days. Attorney Courson agreed with that interpretation, but also suggested that if that is a concern it should be sent to the Council as a Board of Ethics Open Session October 25, 2013 Page 4 SUBJECT DISCUSSION ACTION concern stating that the Board will not actively police this process; the burden will be on the people to come to the Board. Mr. Murashige cited the powers and duties of the Board of Ethics from Page 5, Section 4 -5.8. Attorney Courson said the crux of the issue is the word "Initiate ". Mr. Hubbard said filing a statement of expenditures, Section 4 -5.5 (a), once a year is more than enough; filing twice a year is not important. Attorney Courson referenced Section 4 -5.9 on Page 8 saying he had spoken with the State Ethics Commission who say they regret, and have tried to change three times now, the term "willfully ", which is a criminal standard in their opinion and a remnant from when it was a criminal penalty to violate the lobbyist law. Attorney Courson said the Board might want to suggest to the Council that they delete the term "willfully ". Ms. Davis brought up an issue that has gone before the Legislature before but never passed regarding fines and appeals. Normally when a fine is levied there is a method in which someone can file an appeal but this Board has no way to review appeals or collect fines. Attorney Courson says he does not read the law that the Board cannot do those things just because there is no enabling law. He thought the Ordinance was enabling enough, and they could set up something in the Rules on how to deal with it. Mr. Perry said Sections 4 -5.9 (3) and (4) do not use the term "willfully" and questioned what the standard was for those items. Mr. Perry said a fair comment to make to the County Council would be consistency. Page 5, Section 4 -5.8 (2) references Section 3 -1.5 -4 and Mr. Perry asked if that should not be 4 -5.3, which covers registration, and he further stated this Bill needs to be re- edited. Attorney Courson agreed that 5 -4 covers renewal. Mr. Murashige pointed out that Hawaii County uses "willfully" and treats any violation as a petty misdemeanor, which would take it out of the realm of this Board. Board of Ethics Open Session October 25, 2013 Page 5 SUBJECT DISCUSSION ACTION Mr. Perry recommended making Section 4 -5.9 (a) (1 through 4) consistent in the use of the word "willfully" by deleting it from (1) and (2) or including it in (3) and (4). Attorney Courson agreed with making it consistent but recommended a lower standard than "willful'. Chair Clark said that fines can be up to $500 and asked if that meant the Board would be determining the amount of the fines. Mr. Murashige moved that the Board return Draft Bill 2497 to the County Council along with the comments that are reflected in the minutes for their review and changes as appropriate. Mr. Nagano and Mr. Hubbard simultaneously seconded the motion. Motion carried 6:0 Disclosure a. Michael Dahilig (Director of Planning) Mr. Perry moved to accept the disclosure and deem it complete. Mr. Nagano seconded the motion. Motion carried 6:0 Executive Mr. Perry moved to go into Executive Session at Session 1:39 p.m. Mr. Murashige seconded the motion. Motion carried 6:0 Attorney Courson stated that the Board is going into Executive Session for items ES -014, ES- 015, ES -016, and ES -002 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 1:43 p.m. ES -014, ES -015, ES -016 and ES -002 Session Mr. Hubbard moved to ratify actions taken in Executive Session. Mr. Nagano seconded the motion. Motion carried. ES -014: Approved as circulated Board of Ethics Open Session October 25, 2013 Page 6 SUBJECT DISCUSSION ACTION ES -015: Approved as circulated ES -016: Approved as circulated ES -002: Deferred to November 15, 2013 Announcements Neat Meeting: Friday, November 15, 2013 — 1:00 p.m. Adjournment Chair Clark adjourned the meeting at 1:44 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