HomeMy WebLinkAbout 12/11/2013 Committee of the Whole minutes MINUTES
COMMITTEE OF THE WHOLE
December 11, 2013
A meeting of the Committee of the Whole of the Council of the County of
Kaua`i, State of Hawai`i, was called to order by Jay Furfaro, Chair, at the Council
Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday,
December 11, 2013, at 5:49 p.m., after which the following members answered the
call of the roll:
Honorable Tim Bynum
Honorable Mason K. Chock, Sr.
Honorable Gary L. Hooser
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro
Excused: Honorable Mel Rapozo
Honorable Ross Kagawa (excused at 5:54 p.m.)
Minutes of the August 20, 2013 Special Committee of the Whole Meeting.
Upon motion duly made by Councilmember Bynum, seconded by
Councilmember Chock, and carried by a vote of 5:0:2 (Councilmember Rapozo
and Councilmember Kagawa were excused), the Minutes of the
August 20, 2013 Committee of the Whole Meeting was approved.
Minutes of the November 13, 2013 Committee of the Whole Meeting.
Upon motion duly made by Councilmember Bynum, seconded by
Councilmember Chock, and carried by a vote of 5:0:2 (Councilmember Rapozo
and Councilmember Kagawa were excused), the Minutes of the
November 13, 2013 Committee of the Whole Meeting was approved.
The Committee proceeded on its agenda item, as shown in the following
Committee Report which is incorporated herein by reference:
CR-COW 2013-20: on Resolution No. 2013-72 RESOLUTION TO IMPLEMENT
AN ENVIRONMENTAL AND
PUBLIC HEALTH IMPACTS
STUDY (EPHIS), VIA
FORMATION OF A PESTICIDE
AND GENETIC ENGINEERING
JOINT FACT FINDING GROUP
(JFFG) [Approved as Amended]
There being no objections, the Committee recessed at 7:24 p.m.
The Committee reconvened at 7:27 p.m., and proceeded as follows:
Bill No. 2497 A BILL FOR AN ORDINANCE TO AMEND
THE KAUAI COUNTY CODE 1987, AS
AMENDED, BY ADDING A NEW ARTICLE
TO CHAPTER 4, RELATING TO THE
REGISTRATION AND REGULATION OF
LOBBYISTS [This item was Deferred.]
COW COMMITTEE 2 DECEMBER 11, 2013
Mr. Bynum moved to approve Bill No. 2497, seconded by Ms. Yukimura.
Mr Hooser moved to amend Bill No. 2497 as circulated, as shown in the Floor
Amendment which is attached hereto as Attachment A, seconded by
Ms. Yukimura.
Chair Furfaro: Mr. Hooser, you have the floor.
Mr. Hooser: There is one (1) main amendment and then
there is another one. The first one has the regulation on the cover.
Ms. Yukimura: We only got that one.
Mr. Hooser: Maybe staff has consolidated them all into
one. Let me walk through it.
Chair Furfaro: Let me see if we can get clarity. Were the
amendments consolidated into one?
PETER MORIMOTO: Yes.
Chair Furfaro: Okay.
Mr. Hooser: You put the second one in it too?
Mr. Morimoto: Yes.
Mr. Hooser: Okay, good. These amendments come from a
combination of suggestions from Common Cause, a public interest organization
dealing with good government issues, discussions I had with staff, and my own
research. I will walk through them, if I may. Many of them are housekeeping. On
the first page, change registration and restriction to registration and regulation of
lobbyist. Second page, we changed the word individual to person. Persons defined
as basically everybody. Persons defined in number ten (10) on that same page.
Appropriations, individual, so the work person is all inclusive. Item number nine
(9) on that same page, includes the preparation as part of the definition. Lobbying
activity is also preparing to lobby, doing the research as well as the actual lobbying
itself. The next on down we specify it is five (5) business days. We specify that it is
a business mailing address. Next page, page three (3), this is one would argue a
substantive amendment on "C," it says prior to testifying before the County Council
or administrative agency, a lobbyist shall disclose his or her status as a lobbyist and
I am testifying on behalf of"X company," they would say "I am a registered lobbyist
and I am testifying on behalf of"X company." So it differentiates employees or just
friends of the company from actual lobbyist. Business days, is just a clarification.
Moving down the page are mostly housekeeping. Administrative agency was
included on the bottom.
Moving to page four (4), this is a substantive amendment. We have
non-profit organizations come in and request grants, for example and we fund
non-profits and most of them are 501C3 non-profits. According to definition of
lobbying, they would be lobbying but if they register as a lobbyist, they risk
violating their federal tax status. So this basically says that if you are coming in a
501C3 asking for a grant, you do not have to register as a lobbyist but you still have
to disclose the expenditures that you are using but you just do not have to say that
"I am a lobbyist." Legally, it gives them an opportunity to come in and talk about it.
That is if they are looking for a grant. If they are here to influence legislation, I
COW COMMITTEE 3 DECEMBER 11, 2013
mean some of the largest non-profits in the world are heavy lobbying. So if they are
here to influence legislation and they lobby, they have to register as a lobbyist.
But if they are here just for their grant to fund "whatever organization" then
they do not have to register. Moving down, number two (2) in the middle of the
page, 4-5.5 number two (2) just includes the disclosure items to include but are not
limited to print, electronic, broadcast or other media. Just to make it clear that is a
part of the expense of lobbying, it has to be disclosed. Down at the bottom of the
page, we deleted this section where it starts at number one (1) and then it replaces
it with one (1), two (2), three (3) four (4) which you can see it is all underlined.
Basically just restating what was stated before but making it a little clearer. It was
sort of difficult to understand the language but this is an itemization of the items
that have to be disclosed which include both the expenditures as well as the income
from lobbyist.
Number five (5), the subject area of the legislative and administrative action
has to be disclosed but instead of just saying "I lobbied on smoking," they would
have to say "I lobbied on Bill No. so and so limiting smoking in public areas" or
something like that so that there is more definition. On "D" that is a substantive
change. This is actually kind of interesting because it says "the receipt of money
intended for the influence of election or defeat of the candidate." So if a lobbyist
spends money to influence an election, they have to disclose that under this. The
existing version had that excluded. I do not know why but it was excluded and this
tightens that up and requires it to be included, specifically included. The manner of
filing records is housekeeping. We will flip to page six (6). Requires it to be posted
to the website within ten (10 ) days, which I think is a really good thing and then it
adds in "B," "no person shall serve on any County advisory committee or task force
while engaging in any lobbying or lobbying activities related to the matter being
discussed." I believe that is the substance the amendment. There is one (1) other
that I did not talk about but it is in here. The original language had excluded travel
costs and this language includes travel cost. If you are a lobbyist and you are flying
someone from the mainland it may be a couple thousand dollars in travel cost and
they volunteer their services and so this does not exclude travel cost. This includes
travel costs. We just deleted. It is a deletion that is why it is not highlighted in
yellow. It is a deletion that is not highlighted in yellow because we did not add
anything. This should be highlighted in yellow. It says at the end of the sentence,
"provided that any amounts expended for travel costs shall not be included," that
has been deleted. Now we are including travel costs. I compliment County staff,
Peter and Yvette, particularly with Common Cause. We had some good discussions
and made significant improvements. We had some good discussions. I think it is a
really, really significant improvement. I believe the core of this was taken off the
State existing and so we have improved upon that, I believe, so I highly recommend
a vote in support and I will open questions.
Chair Furfaro: I have a question for the County Attorney
when we get a moment but, Mr. Bynum you have the floor.
Mr. Bynum: I will try to be brief. I am in full support of
this Bill. I am particularly happy about the amendment about travel. We are in
Hawai`i and when I ran a business I got a lot of people to come here and do stuff for
traveling so this is a good move. Thank you.
Chair Furfaro: Mr. Hooser or JoAnn, do you mind if I ask
the County Attorney to come up? Al, will you come up for a second?
There being no objections, the rules were suspended.
COW COMMITTEE 4 DECEMBER 11, 2013
ALFRED B. CASTILLO, JR., County Attorney: Council Chair,
Councilmembers, good evening, Al Castillo, County Attorney.
Chair Furfaro: Al, I made a visit when we had first drafted
this. I went to speak to the Ethics Commission. Do we have a clearer
understanding of who will be keeping the bonified list of registered lobbyist in our
County? Is it your office? Is it the Board of Ethics? How does that happen?
Mr. Castillo: It is my understanding that the Boards and
Commissions and I do not know if the Board of Ethics themselves.
Chair Furfaro: Gary, did you have a.....
Mr. Hooser: The Bill says the Board of Ethics. There is
one (1) other amendment that I did not mention but it says it takes effect upon
ninety (90) days. So that gives time.
Chair Furfaro: Those two (2) things came out of the first
amendment that I sent you when I spoke to them. I went to the Board of Ethics.
They asked for the ninety (90) days but they were not clear that it was their
kuleana to keep that list. I just wanted to make sure now we are saying "ninety
(90) days, and Board of Ethics." Can we make sure we convey that to them, should
this pass the full Council?
Mr. Castillo: I am not privy to what occurred in the Board
of Ethics. I am sorry.
Chair Furfaro: Paula was present.
Mr. Castillo: Yes, I know she was but I know for a fact
that she always keeps track.
Chair Furfaro: I will do a follow-up.
Mr. Castillo: In will follow-up with our attorney at the
Board of Ethics.
Chair Furfaro: It is coming out of the Committee of the
Whole. It originally was something Mr. Hooser and I talked about. I have been to
the Ethics Committee to make those clarities and that is the feedback I got. We
have some good amendments here. I just want to make sure that when we are
saying to these bonified lobbyist, we know there is a list being maintained through
Boards and Commissions and the Board of Ethics Commission understands their
responsibility.
Mr. Castillo: I will pass on the message.
Chair Furfaro: Thank you.
Mr. Castillo: Thank you.
Chair Furfaro: Thank you, JoAnn, for giving me an
opportunity in front of you. You have the floor.
Ms. Yukimura: Question Councilmember Hooser. On page
two (2), I just wanted to understand the implications of adding in "preparing to
COW COMMITTEE 5 DECEMBER 11, 2013
communicate and preparing to solicit." I just have not really dealt with these
issues, so I am just learning here.
Mr. Hooser: And I also. Those suggestions, and Peter can
correct me if I am wrong, came out from the Common Cause. It is my
understanding that it means not just showing up because it is allocated on how
much money you spend and how much time, so the definition of being a lobbyist
spending "x" number of hours and "x" amount of money and so it is not just showing
up in front of us for five (5) minutes but it is the time you spend preparing to show
up for us and preparing to solicit us and the money you spend preparing that kind
of thing. This is the intent.
Ms. Yukimura: If there is no urgency in passing this, could
we take one (1) more Committee meeting to look at it and fully understand it and
also have the public have an opportunity to give input in Committee?
Chair Furfaro: Sure. I have no problem with that. Paula
did indicate it to me that she would be available to comment when we moved it into
full Councilo or if we kept it in Committee either way.
Ms. Yukimura: I know she was here earlier.
Chair Furfaro: She has been here all day waiting for certain
parts but I have no problem with carrying it over one (1) more time.
Ms. Yukimura: I really appreciate the proposed amendments
and the intention to make it more erective in terms of its purpose. I am not
questioning he basic thrust of the amendments but it is fairly detailed and I just
wanted to be able to understand each provision or each proposed change and just
understand the implications like Councilmember Hooser just explained to me which
makes a lot of sense on the definition of lobbying or lobbying activites and things
like that. I the interest of time....
Chair Furfaro: I have no problem with that as the
introducer of the original Bill. I have shared my comments with the Board of Ethics
and with Mr. Hooser. These are Mr. Hooser's amendments, after that feedback, I
think we can go one (1) more time.
Ms. Yukimura: If it is alright...
Mr. Hooser: If I may, my goal, our goal, I think is to have
a opportunity to have a model piece of legislation and set an example for other
places and so I am perfectly open and accept taking the time and needs to
encourage all of the members to look at it.
Chair Furfaro: And I think that there are two (2) or three (3)
other members in the public that do want to give testimony but have left already for
the day. We need to defer this to a date specific in January.
Ms. Yukimura: Or the next Committee meeting?
Chair Furfaro: Next Committee meeting is next year. I do
not have the date.
Ms. Yukimura: January 8th the staff is telling me.
Chair Furfaro: That is why I said date specific.
COW COMMITTEE 6 DECEMBER 11, 2013
Ms. Yukimura: If there is no more discussion, I will make a
motion.
Chair Furfaro: JoAnn is making a motion to defer.
Upon motion duly made by Councilmember Yukimura, seconded by
Councilmember Chock, and carried by a vote of 5:0:2 (Councilmember
Kagawa and Councilmember Rapozo were excused), Bill No. 2497 was
deferred.
CR-COW 2013-21: on Bill No. 2510 A BILL FOR AN ORDINANCE
APPROVING A COLLECTIVE
BARGAINING AGREEMENT FOR
BARGAINING UNIT 13 BETWEEN
JULY 1, 2013 AND JUNE 30, 2017
[Approved.]
There being no further business, the meeting was adjourned at 7:52 p.m.
Respectfully submitted,
Lori L. Marugame
Council Services Assistant I
APPROVED at the Co I. ' tee Meeting held on January 22, 2014:
JAYF RFe 'O-I�
Chair, i ••. —itighprio
r
Attachment A
•
(December 11, 2013)
FLOOR AMENDMENT
Bill No. 2497, Relating to the Registration and Regulation of Lobbyists
Introduced by: GARY L. HOOSER
1. Amend Bill No. 2497, by amending the title and Section 4-5.1 in Section 2 to
read as follows:
"ARTICLE 5. REGISTRATION AND [RESTRICTION] REGULATION
OF LOBBYISTS
Sec. 4-5.1 Declaration of Intent.
The County Council hereby declares that the operation of responsible
democratic government requires that the fullest opportunity be afforded to
the people to petition their government for the redress of grievances and to
express freely to appropriate officials their opinions on legislation and
governmental operations; and that, to preserve and maintain the integrity of
the governmental decision-making process in this county, it is necessary that
the identity, expenditures and activities of persons and organizations
retained, employed or designated to influence the passage or defeat of any 1
legislation by county council, the approval, or veto, of any legislation by the
mayor and attempts to influence administrative action by the executive
branch, be publicly and regularly disclosed."
2. Amend Bill No. 2497, by amending Section 4-5.2 in Section 2 to read as follows:
"Sec. 4-5.2 Definitions. When used in this Article, the following
words or phrases shall have the meaning given in this section unless it shall be
apparent from the context that another meaning is intended.
(1) "Administrative action" means the proposal, drafting,
consideration, amendment, enactment, or defeat by any administrative
agency of any rule, regulation, or other action governed by Hawai`i Revised
Statues (HRS) Section 91-3.
(2) "Administrative agency" means a commission, board, agency, or
other body, or official in the County government that is not a part of the
legislative branch.
(3) "Board of Ethics" means that board established by Section 20.05
of the Charter of the County of Kaua'i.
(4) "Contested case" shall have the meaning defined in
HRS Section 91-1.
(5) "Contribution" includes a gift, subscription, forgiveness of a
loan, advance, or deposit of money, or anything of value and includes a
contract, promise, or agreement, whether or not enforceable, to make a
contribution.
1
v • v
(6) "Expenditure" includes a payment, distribution, forgiveness of a
loan, advance, deposit, or gift of money, or anything of value and includes a
contract, promise, or agreement, whether or not enforceable, to make an
expenditure. "Expenditure" also includes compensation or other consideration
paid to a lobbyist for the performance of lobbying services. "Expenditure"
excludes the expenses of preparing written testimony and exhibits for a
hearing before the County Council or an administrative agency.
(7) "Legislative action" means the sponsorship, drafting,
introduction, consideration, modification, enactment, or defeat of any bill,
resolution, ordinance, amendment, report, nomination, appointment, or any
other matter pending or proposed in the County Council, including the
approval or veto of such .
(8) "Lobbyist" means any [individual] person, who for pay engages,
or is engaged, in lobbying or lobbying activities in excess of five (5) hours in
any month or spends more than seven hundred fifty dollars ($750) in any
reporting period described in Section [3-1.5-5] 4-5.5 except such persons as
specifically excluded by Section [3-1.5-3 (e)] 4-.5.3 (f) from the application of
this Article. A person who accepts membership dues or contributions made,
or a fee or salary paid, with the understanding that the person accepting the
same intends to devote a portion of the funds contributed or the time for
which the salary is paid to lobbying activities shall be deemed to be "engaged"
to conduct such activities.
(9) The term "lobbying" or "lobbying activities" shall mean
preparing to communicate or communicating, directly or through an agent, or
preparing to solicit or soliciting others to communicate, with a County officer
or employee for the purpose of attempting to influence any Legislative action
or Administrative action.
(10) "Person" means a corporation, individual, union, association,
firm, sole proprietorship, partnership, committee, club, limited liability
company or any other organization or a representative of a group of persons
acting in concert."
3. Amend Bill No. 2497, by amending Section 4-5.3 in Section 2 to read as follows:
"Sec. 4-5.3 Registration of lobbyists, requirements.
(a) Every lobbyist shall file a registration form with the Board of Ethics
within five (5) business days of becoming a lobbyist.
(b) The registration form shall require the lobbyist or appropriate officer
of lobbyist if a corporation or appropriate manager or member if the lobbyist is a
limited liability company, to provide and certify under oath as true and correct the
following information:
(1) The name, business mailing address, and business telephone
number of the lobbyist.
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(2) The name and principal place of business of each person by
whom the lobbyist is retained or employed or on whose behalf the lobbyist
appears or works and a written authorization to act as a lobbyist from each
person by whom the lobbyist is employed or with whom the lobbyist
contracts.
(3) The subject areas on which the lobbyist expects to lobby.
(c) Prior to testifying before the County Council or administrative agency,
a lobbyist shall disclose his or her status as a lobbyist and the person on whose
behalf the lobbyist is appearing.
(d) A lobbyist shall report any change in any of the information contained
in the registration statement within ten (10) business days after the change has
occurred.
(e) A lobbyist shall file a notice of termination within ten (10) business
days after the lobbyist ceases the activity which required the lobbyist's registration.
The lobbyist and the employer of the lobbyist shall remain subject, however, to the
requirements of Chapter 97 for the period during which the registration was
effective.
(f) This Article shall not apply to:
(1) Any individual who represents oneself and not any other person
before the County Council or administrative agency; provided that such
individual must nonetheless file a statement of expenditures if the individual
meets any of the provisions of Section [3-1.5-5(a)(2)-(3)] 4-5.5(a)(2) or (3);
(2) Any federal, state, or county official or employee acting in the
official's or employee's official capacity;
(3) Any newspaper or other regularly published periodical or radio
or television station (including any individual who owns, publishes, or is
employed by a newspaper or periodical or radio or television station) while
publishing in the regular course of business news items, editorials, or other
comments, or paid advertisements, which directly or indirectly urge the
passage or defeat of legislative or administrative action;
(4) Any attorney who advises the attorney's clients on the
construction or effect of proposed legislative or administrative action;
provided that such attorney must nonetheless file a statement if the attorney
meets the reporting statement requirements set forth in Section [3-1.5-5(a)(2)
or (3)] 4-5.5(a)(2) or (3); [and]
(5) Any person who possesses special skills and knowledge relevant
to certain areas of legislation, whose skills and knowledge may be helpful to
the County Council, administrative agency and executive branch of County
government, and who makes an occasional appearance at the request of the
County Council or an administrative agency, even though receiving
reimbursement or other payment from the County Council or administrative
agency for the appearance[.]; and
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(6) Employees of non-profit organizations exempt from paying
federal income tax under Section 501(c)(3) of the Internal Revenue Code
seeking direct funding from the County of Kaua`i shall not be required to
register as a lobbyist, but shall be required to comply with Sections 4-5.5 and
4-5.6 of this Article."
4. Amend Bill No. 2497, by amending Section 4-5.4 in Section 2 to read as follows:
"Sec. 4-5.4 Renewal of registration.
Each registered lobbyist shall renew the lobbyist's registration
biennially by filing a registration and authorization form with the Board of
Ethics by January 31, [2013] 2015 and on every odd-numbered year's session
thereafter."
5. Amend Bill No. 2497, by amending Section 4-5.5 in Section 2 to read as follows:
"Sec. 4-5.5 Contributions and expenditures; statement.
(a) The following persons shall file a statement of expenditures with the
Board of Ethics on July 31 and January 31 of each year:
(1) Each lobbyist.
(2) Each person who spends seven hundred fifty dollars ($750) or
more of the person's or any other person's money, including, but not limited
to, amounts spent on print, electronic, broadcast or other media in any six-
month period for the purpose of attempting to influence legislative or
administrative action or a ballot issue by communicating or urging others to
communicate with public officials[; provided that any amounts expended for
travel costs, including incidental meals and lodging, shall not be included in
the tallying of the seven hundred fifty dollars ($750)].
(3) Each person who employs or contracts for the services of one (1)
or more lobbyists, whether independently or jointly with other persons. If the
person is an industry, trade, or professional association, only the association
is the employer of the lobbyist.
(b) The July 31 report shall cover the period from January 1 through the
last day of June. The January 31 report shall cover the period from July 1 through
December 31 of the previous year.
(c) The statement shall contain the following information:
[(1) The name and address of each person with respect to whom
expenditures for the purpose of lobbying in the total sum of twenty-five
dollars ($25) or more per day was made by the person filing the statement
during the statement period and the amount or value of such expenditure;
(2) The name and address of each person with respect to whom
expenditures for the purpose of lobbying in the aggregate of one hundred fifty
dollars ($150) or more was made by the person filing the statement during
4
the statement period and the amount or value of such expenditures;
(3) The total sum or value of all expenditures for the purpose of
lobbying made by the person filing the statement during the statement period
in excess of seven hundred fifty dollars ($750) during the statement period;
(4) The name and address of each person making contributions to
the person filing the statement for the purpose of lobbying in the total sum of
twenty-five dollars ($25) or more during the statement period and the
amount or value of such contributions; and]
(1) The name and address of any person receiving lobbying
expenditures from the person filing the statement in the amount of $25.00 or
more per day and the amount or value of such expenditure;
(2) The name and address of any person receiving lobbying
expenditures from the person filing the statement in the aggregate amount of
$1.50.00 or more per statement period and the amount or value of such
expenditures;
(3) If the lobbying expenditures made during the statement period
exceed $750.00, the total sum or value of all such expenditures and an
itemized list containing a general description of all expenditures;
(4) The name and address of each person who, during the statement
period and for the purpose of lobbying, contributed $25.00 or more to the
person filing the statement; and
(5) The subject area of the legislative and administrative action and
the title of the bill, resolution, permit, or action which was supported or
opposed by the person filing the statement during the statement period.
(d) The receipt or expenditure of any money for the purpose of influencing
the election or defeat of any candidate for an elective office or for the passage or
defeat of any proposed measure at any special or general election is [excluded from]
included in the reporting requirement of this section."
6. Amend Bill No. 2497, by amending Section 4-5.6 in Section 2 to read as follows:
"Sec. 4-5.6 Manner of filing; public records.
All statements required by this Article to be filed with the Board of Ethics:
(1) Shall be deemed properly filed when delivered or deposited in an
established post office within the prescribed time, duly stamped, registered,
or certified, and directed to the Board of Ethics; provided, however, in the
event it is not received, a duplicate of the statement shall be promptly filed
upon notice by the Board of Ethics of its nonreceipt; [and]
(2) Shall be preserved by the Office of Boards and Commissions for
a period of four (4) years from the date of filing; and shall constitute part of
the public records of the Office of Boards and Commissions[.] and
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(3) Shall be posted on a website maintained by the Office of Boards
and Commission within ten (10) business days of receipt by the Board of
Ethics."
7. Amend Bill No. 2497, by amending Section 4-5.7 in Section 2 to read as follows:
"Sec. 4-5.7 Restricted activities.
(a) No lobbyist shall accept or agree to accept any payment in any
way contingent upon the defeat, enactment, or outcome of any proposed
legislative or administrative action.
(b) No person shall serve on any County advisory committee or task
force while engaging in any lobbying or lobbying activities related to the
matter being discussed, studied, analyzed or evaluated by such committee or
task force."
8. Amend Bill No. 2497, by amending Section 4-5.8 in Section 2 to read as follows:
"Sec. 4-5.8 Administration.
(a) The Board of Ethics shall administer and implement this Article, and
shall have the following powers and duties:
(1) Initiate, receive, [and] consider and respond to charges
concerning alleged violations of this Article, and investigate or cause to be
investigated on a confidential basis, the activities of any person to determine
whether the person is in compliance with this Article;
(2) Prescribe forms for the statements and reports required by
Sections [3-1.5-4 and 3-1.5-5] 4-5.4 and 4-5.5, and establish orderly
procedures for implementing the requirements of those provisions;
(3) Render advisory opinions upon the request of any person subject
to this Article. If no advisory opinion is rendered within forty-five (45) days
after the request is filed with the Board of Ethics, it shall be deemed that an
advisory opinion was rendered and that the facts and circumstances of that
particular case do not constitute a violation of this Article. The opinion
rendered or deemed rendered, until amended or revoked, shall be binding on
the Board of Ethics in any subsequent charges concerning the person subject
to this Article who sought the opinion and acted in reliance on it in good
faith, unless material facts were omitted or misstated by the person in the
request for an advisory opinion;
(4) Issue subpoenas, administer oaths, and exercise those powers
conferred upon the Board of Ethics by Section 20.05(E) of the Charter of the
County of Kaua`i;
(5) Adopt rules, not inconsistent with this Article, as in the
judgment of the Board of Ethics seem appropriate for the carrying out of this
Article and for the efficient administration of this Article, including every
matter or thing required to be done or which may be done with the approval
or consent or by order or under the direction or supervision of, or as
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prescribed by, the Board of Ethics. The rules, when adopted as provided in
Chapter 91, HRS shall have the force and effect of law; and
(6) Have jurisdiction for purposes of investigation and taking
appropriate action on alleged violations of this Article in all proceedings
commenced within three years of an alleged violation of this Article. A
proceeding shall be deemed commenced by the filing of a charge with the
Board of Ethics or by the signing of a charge by three or more members of the
Board of Ethics. Nothing shall bar proceedings against a person who by fraud
or other device prevents discovery of a violation of this Article; and
(7) Report suspected violations of law to the appropriate law
enforcement authorities.
(b) Charges concerning the violation of this Article shall be in writing,
signed by the person making the charge under oath, except that any charge
initiated by the Board of Ethics shall be signed by three (3) or more members of the
Board of Ethics. The Board of Ethics shall notify in writing every person against
whom a charge is received and afford the person an opportunity to explain the
conduct alleged to be in violation of the Article. The Board of Ethics may investigate
such charges and render an informal advisory opinion to the alleged violator. The
Board of Ethics shall investigate all charges on a confidential basis, having
available all the powers herein provided, and proceedings at this stage shall not be
public. If the informal advisory opinion indicates a probable violation, the person
charged shall request a formal opinion or within a reasonable time comply with the
informal advisory opinion. If the person charged fails to comply with such informal
advisory opinion or if a majority of the members of the Board of Ethics determine
that there is probable cause for belief that a violation of this Article might have
occurred, a copy of the charge and a further statement of the alleged violation shall
be personally served upon the alleged violator. Service shall be made by personal
service upon the alleged violator wherever found or by registered or certified mail
with request for a return receipt and marked deliver to addressee only. If after due
diligence service cannot be completed successfully in accordance with the above,
service may be made by publication if so ordered by the circuit court of the circuit
wherein the alleged violator last resided. The Board of Ethics shall submit to the
circuit court for its consideration in issuing its order to allow service by publication
an affidavit setting forth facts based upon the personal knowledge of the affiant
concerning the methods, means, and attempts made to locate and effect service by
personal service or by registered or certified mail in accordance with the above.
Service by publication when ordered by the court shall be made by publication once
a week for four (4) successive weeks of a notice in a newspaper of general circulation
in the circuit of the alleged violator's last known state.address. The alleged violator
shall have twenty (20) days after service thereof to respond in writing to the charge
and statement.
(c) If after twenty (20) days following service of the charge and further
statement of alleged violation in accordance with this section, a majority of the
members of the Board of Ethics conclude that there is probable cause to believe that
a violation of this Article has been committed, then the Board of Ethics shall set a
time and place for a hearing, giving notice to the complainant and the alleged
violator in the same manner as provided in subsection (b). Upon the Board of Ethics'
issuance of a notice of hearing, the charge and further statement of alleged violation
and the alleged violator's written response thereto shall become public record. The
hearing shall be held within ninety (90) days of the Board of Ethics' issuance of a
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notice of hearing. If the hearing is not held within that ninety-day period, the
charge and further statement of alleged violation shall be dismissed; provided that
any delay that is at the request of, or caused by, the alleged violator shall not be
counted against the ninety-day period.
All parties shall have an opportunity to:
(1) Be heard;
(2) Subpoena witnesses and require the production of any books or
papers relative to the proceedings;
(3) Be represented by counsel; and
(4) Have the right of cross-examination.
All hearings shall be in accordance with Chapter 91, HRS All
witnesses shall testify under oath and the hearings shall be open to the
public. The Board of Ethics shall not be bound by the strict rules of evidence
but the Board of Ethics' findings shall be based on competent and substantial
evidence.
All testimony and other evidence taken at the hearing shall be
recorded. Copies of transcripts of the record shall be available only to the
complainant and the alleged violator at their own expense. All fees collected
under this Article shall be deposited into the general fund.
(d) A decision of the Board of Ethics pertaining to the conduct of any
person subject to this Article shall be in writing and signed by three or more of the
members of the Board of Ethics. A decision of the Board of Ethics rendered after a
hearing together with findings and the record of the proceeding shall be a public
record.
(e) A person who files a frivolous charge with the Board of Ethics against
any person covered by this Article shall be civilly liable to the person charged for all
costs incurred in defending the charge, including but not limited to costs and
attorneys' fees. In any case where the Board of Ethics does not issue a decision or
final conclusion in which the Board of Ethics concludes that a person has violated
this Article, the Board of Ethics shall, upon the written request of the person
charged and after a contested case hearing, make a finding as to whether or not the
charge was frivolous. The person charged may initiate an action in the circuit court
for recovery of fees and costs incurred in Board of Ethics contested case proceedings
within one (1) year after the Board of Ethics renders a decision that the charge was
frivolous. The Board of Ethics' decision shall be binding upon the court for purposes
of a finding pursuant to HRS Section 607-14.5."
9. Amend Bill No. 2497, by amending Section 4-5.9 in Section 2 to read as follows:
"Sec. 4-5.9 Penalties; administrative fines.
(a) Any person who:
(1) [Willfully fails] Fails to file any statement or report required by
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this Article;
(2) [Willfully files] Files a statement or report containing false
information or material omission of any fact;
(3) Engages in activities prohibited by Section [3-1.5-7] 4-5.7; or
(4) Fails to provide information required by Sections [3-1.5-3, 3-1.5-
4 or 3-1.5-5] 4-5.3, 4-5.4 or 4-5.5;
shall be subject to an administrative fine imposed by the Board of Ethics that
shall not exceed five hundred dollars ($500) for each violation of this Article.
All fines collected under this section shall be deposited into the general fund.
The Board of Ethics may suspend or revoke the certificate of registration of a
lobbyist who has been found to have violated any provision of this Article.
The suspension or revocation shall not exceed two (2) years from the date of
the sanctions imposition.
(b) No fine, suspension or revocation shall be assessed unless:
(1) The Board of Ethics convenes a hearing in accordance with
Section 3-1.5-8(c) and Chapter 91, HRS; and
(2) A decision has been rendered by the Board of Ethics."
10. Amend Bill No. 2497, by amending Section 5 to read as follows:
"SECTION 5. This ordinance shall take effect [upon] ninety (90) days
after its approval."
(Material to be deleted is bracketed. New material is underscored.)
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