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HomeMy WebLinkAbout2015_0116_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 2/20/15 Board /Committee: BOARD OF ETHICS Meeting Date January 16, 2015 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. End of Meeting: 2:36 p.m. Present Chair Warren Perry; Vice -Chair Maureen Tabura; Secretary Ryan de la Pena. Members: Kathy Clark; Calvin Murashige; Brad Nagano; Mary Tudela Staff: Deputy County Attorney Stephen Hall; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Paula Morikami. Also: Councilmember Arryl Kaneshiro; Councilmember JoAnn Yukimura Excused Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, Council Administrative Assistant Eddie Topenio gave the Oath of Office to reappointed Board members Mary Tudela and Calvin Murashige Call To Order Chair Perry called the meeting to order at 1:00 p.m. with 7 members present. As the new Chair, Chair Perry shared some of his thoughts saying the first thing he concentrates on is whether the process to get something before the Board is right. Once it is determined the process is right then the Board goes through the substance — is it within the purview of this Board to look at. Secondly the minutes are so very important because if it is not there, it did not happen. If it is there that is what happened. If any of us approve the minutes, not only do we approve the minutes as far as what each of us individually said, but also what the others said. Approval of Regular Open Session Minutes of December 19, 2014 Mr. Murashige moved to approve the minutes as Minutes circulated. Mr. Nagano seconded the motion. Motion carried 7:0 Communication BOE 2015 -01 Notice to the County Council from Councilmember Yukimura of a possible conflict of interest regarding Bill No. 2569 — a bill for an ordinance amending Chapter 17, Kauai County Code 1987, as amended relating to electric vehicle charging stations Mr. de la Pena moved to receive the communication. Mr. Murashige seconded the Board of Ethics Open Session January 16, 2015 01M SUBJECT DISCUSSION ACTION motion. Motion carried 7:0 Request for an RAO 15 -001 Request of 12/9/14 from Councilmember Kaneshiro as to Advisory whether there is a conflict to participate in budget hearings relating to Opinion rg ants provided to EKSWCD; if he cannot participate in budget hearings related to rg ants provided to EKSWCD, can he vote on the annual budget which may include funding to EKSWCD RAO 15 -003 Request of 12/17/14 from Councilmember Kaneshiro if there is a conflict to participate in Council hearings and vote on items related to real property tax legislation and other matters not specific to HMI or Grove Farm, but which may affect these companies. Councilmember Kaneshiro noted this is his first time before the Board of Ethics, and was not sure how specific or how broad he should make his requests, and stated he would accept guidance from the Board. Mr. Kaneshiro pointed out that he is a Director for the East Kauai Soil and Water Conservation District (EKSWCD) although the communication incorrectly states he is on the Board of Directors. The Hawaii Soil and Water Conservation Districts were created by State law, and appointments are by the Board of Land and Natural Resources of which Mr. Kaneshiro has been a member since mid -2013. The County provides a grant to the EKSWCD every year. His specific question is whether he can be in on the grant approval or not. The second request is broader. As the Budget and Finance Chair for the Council he would like to be able to approve the budget, but does not want anything to hold him back that happened within the budget. Mr. Kaneshiro said this is where the controversy is, and everyone wants him to claim a conflict of interest on everything. Mr. Kaneshiro stated he is an employee for Haili Moe, Inc. (HMI) from whom he gets his paycheck. He is also an employee of Grove Farm, and at the end of the year receives a small bonus Board of Ethics Open Session January 16, 2015 01M SUBJECT DISCUSSION ACTION check and a W -2, which is listed on his Financial Disclosure. His percentage of ownership in Haili Moe is .207183% and is valued at $12,000. He asked where they draw the line. The County Council will be doing a lot of general policy stuff and the agronomics bill is a general policy; the same as any other real property tax items the Council does. Grove Farm has a big land holding with almost 37,000 acres of land, which includes commercial property, industrial property, and ag property. The Council adjusts tax rates, and if it is a general policy he would like to be able to sit in on it. The distinction is between general policy and specific policy. If Grove Farm has a lease with the County which comes before the Council that would be a direct conflict. If Grove Farm wants to up -zone land that it something he would step off on, but if for some reason the Council wants to decrease the commercial rate he does not want it to be said he is decreasing it because he has commercial property. Mr. Kaneshiro stated he takes his position at Council very seriously, and will not do anything to jeopardize his position or the Board's decisions. When issues come up he looks at it to see if it is a general policy, or is it something specifically related to Grove Farm; if only Grove Farm land is being taxed then that is something he would recuse himself on. Mr. Kaneshiro asked if the Board wants him to come in with every specific instance, or if they want him to use his judgment on whether he is in direct conflict or not. Chair Perry pointed out that the Code of Ethics is in the Charter and the Charter is our Constitution, and there is also the County Code. In the Charter §20.02 C states no County person shall acquire financial interest in business enterprises which he may be directly involved in official action to be taken by him. The only problem is that it seems like something you would do while you are a County officer, an employee, and not so much something that was with you at the time of your becoming a County Board of Ethics Open Session January 16, 2015 0_ . . SUBJECT DISCUSSION ACTION employee. Charter §20.02 E - use his official opposition to secure a special benefit and that addresses the thing about real property taxes — a special benefit. §20.04 B, Disclosures, any elected official, appointed officer, employee ........ who possesses or acquires such interest as might reasonably tend to create a conflict with his duties or authority, or who is an owner, officer, executive director, etc ... ... shall make full disclosure ........ and not participate. Chair Perry said there are three different things here, but if they are talking about a special benefit he would say there is no special benefit. If they are talking about 20.02 C it was an interest that was acquired prior to being a (council) member. The one that troubles Chair Perry the most is 20.04 B. Ms. Clark moved that there is a conflict. Ms. Tudela seconded the motion. Ms. Tudela expressed appreciation for the clarity of the communication but does agree there clearly is a conflict to participate in council budget hearings that relate to EKSWCD. The prudent thing to do is recuse himself because he is a member of the board of directors of EKSWCD and a member of the Council. Deputy Attorney Hall expressed something that Deputy Attorney Courson had written in regard to this in which he referenced an opinion this Board issued in 2012 to then Councilmember Kuali`i, who of course is now again on the Council, in which he was the director of operations of the YWCA and he wanted to know if there was a conflict with the issue of receiving grant funds from the Office of the Prosecuting Attorney and the Office of Economic Development. The Board held there was a conflict of interest for Councilmember Kuali'i to participate in matters involving funding for the YWCA from OPA, funding from OED and the VOCA grants, which in part are allocated to the YWCA. The Board found that Councilmember Kuali'i's recusal at a departmental level was not required on the budgets of either OED or OPA. Motion carried 7:0 Board of Ethics Open Session January 16, 2015 01M SUBJECT DISCUSSION ACTION Mr. Murashige moved that there is no conflict on RAO 15 -003. Mr. Nagano seconded the motion. Motion carried 7:0 Ms. Morikami asked the Board to clarify their decision on RAO 15 -001 which consisted of a two -part question. Chair Perry called for a motion to reconsider the first vote. Ms. Tudela so moved. Mr. de la Pena seconded the motion. Chair Perry pointed out the first part of the question had to do with budget hearings related to grants, and would we have a situation where it is not special privilege. Ms. Clark moved that there is a conflict. Asked what was before the Board, Chair Perry clarified it was a motion to reconsider the first vote which did not separate the two requests. Although Ms. Clark thought they had the other members noted they discussed the grants before moving on to 15 -003. Motion to reconsider carried 7:0 Mr. Murashige thought at a budget hearing the committee determined whether or not to make a recommendation to Council. That would be a conflict more so than the annual budget, which includes everything. The key would be more to whether Mr. Kaneshiro should participate in the budgetary hearings because he would have a more vested interest in seeing that item pass out of committee for the Council to act on than the actual Mr. Murashige moved that the Board find a global budget. conflict as to participation in the Council budget hearings related to grants specific to the EKSWCD. Ms. Tudela seconded the motion. Motion carried 7:0 Mr. Nagano moved that there is no conflict in participating in the annual budget. Ms. Tabura seconded the motion. Motion carried 7:0 Board of Ethics Open Session January 16, 2015 01 • SUBJECT DISCUSSION ACTION Mr. Kaneshiro asked the Board if they preferred he continue sending in requests for Advisory Opinions item by item, or if he should use his own judgment as long as it is not a gray area. Ms. Tabura said if he has to ask that question then he should come to the Board. Ms. Tudela suggested he also talk with his attorney as the role of this Board is to look at the requests that come in to the Board. Where there is a conflict he must recuse himself, and those areas that are gray she would suggest he talk to his counsel on whether or not he should recuse himself. Deputy County Attorney Hall said the advice given was good, and when he has questions he should bring it up before this body. RAO 15 -002 Request of 12/23/14 from Planner Laureta from the Planning Department if there is a conflict to run for a Board Position on KIUC Staff stated Mr. Laureta may not come to the meeting as he has indicated he may not run for a board position, but that it would still be beneficial to have the opinion. Mr. Murashige moved that the Board find there is no conflict. Mr. Nagano seconded the motion. Motion carried 7:0 RAO 15 -004 Request of 12/22/14 from Councilmember Yukimura if there is a conflict as a lessor of an electric vehicle which utilizes charging stations at the County for her personal vehicle to participate in a Bill relating to electric vehicle charging stations Councilmember Yukimura said this issue came up because there is a bill before the County Council and a request from the Office of Economic Development to provide for free charging services for electric cars that use the County chargers. As a Councilmember, Ms. Yukimura has recused herself thus far, but would like to get a formal opinion from the Board as to whether there is a conflict, which there may be since she does use the chargers for her personal car. She is more concerned whether it will be a blanket ruling that wherever electric cars are involved or chargers are Board of Ethics Open Session January 16, 2015 01M SUBJECT DISCUSSION ACTION involved that there would be a conflict of interest. If there is a distinction between County chargers being free, and a public policy about all chargers, she would like to see a distinction made, if there is a distinction. The Kauai Energy Sustainability Plan, the funding of which Ms. Yukimura introduced, makes it a clear public policy that we encourage electric cars. There are a lot of issues that will be required to be addressed if we are to encourage electric cars to which Councilmember Yukimura further shared some of the problems thus far. If it is the Board's collective decision to distinguish between the issues of fees versus the issue of regulating chargers and how they are to work on this island she would like to have that distinction in the ruling. If the Board feels there is a conflict of interest in both situations, she will abide by that. Mr. Murashige moved that based only on what is before the Board there is no conflict. Ms. Tudela seconded the motion. In response to a question, Councilmember Yukimura said she is not advocating free fuel cells or not because there is no policy on fuel cells. The technology has not advanced enough for it to become a practical option yet. Mr. Nagano asked who pays for the elimination of the user fees. Councilmember Yukimura said it is before the County Council to make a determination. She thought the energy office under the Office of Economic Development was proposing a free system until they develop a more detailed policy and find a more economical route. It is believed to charge now would cost the County more. Ms. Clark said the reason Wilcox Hospital does not charge a user fee is because of the cost to administer it. Ms. Tudela noted that when she seconded the motion she presumed Councilmember Yukimura had no financial interest, and was not a legal counsel or advisor, consultant or representative or had anything to do with the actual charging stations. Councilmember Yukimura said she has absolutely nothing to do with the vendor. Motion carried 7:0 Executive Deputy Attorney Hall stated that pursuant to Session H.R.S. §92 -4, H.R.S. §92 -5 (a) (2) (4) the Board Board of Ethics Open Session January 16, 2015 01M SUBJECT DISCUSSION ACTION is going into Executive Session for item ES -001: BOE 15 -001 as fully described in the posted agenda. Ms. Clark moved to go into Executive Session at 1:43 p.m. Mr. Murashige seconded the motion. Motion carried 7:0 Return to Open Ratify Board of Ethics actions taken in Executive Session for items: The meeting resumed in Open Session at 2:04 p.m. Session ES -001 Ms. Tudela moved to ratify the Board's actions. Mr. Murashige seconded the motion. Motion carried 7:0 Disclosures a. Arryl Jordan Kaneshiro (County Council) b. Andrea Aiko Suzuki (Deputy County Attorney) c. Harold Daniel Brown (Fire Commission) d. Jodi Akemi Higuchi Sayegusa (Deputy County Attorney) e. Ian Kawika Murray Jung (Deputy County Attorney) f. Adam P. Roversi (Deputy County Attorney) g. Stephen Francis Hall (Deputy County Attorney) h. JoAnn Ai Yukimura (County Council) i. Nicholas R. Courson (Deputy County Attorney) j. Kirk Isao Saiki (Manager & Chief Engineer, Dept. of Water) k. Ian K. Costa (Deputy Director of Parks & Recreation) 1. Michael Alejandre Dahilig (Planning Director) m. Lyle Mikio Tabata (Deputy County Engineer) n. Matthew Martel Bracken (Deputy County Attorney) o. Allan Harold Parachini (Charter Review Commission Board of Ethics Open Session January 16, 2015 I'._-' SUBJECT DISCUSSION ACTION p. Donald G. Kolenda (Board of Review) q. Julie Black Caspillo (Board of Review) r. Mary Elizabeth Tudela (Board of Ethics) s. Louis Edmund Abrams (Planning Commission) t. Mason Kamalani Chock (County Council) u. Melvin F. Rapozo (County Council) v. Ross Kiyoshi Kagawa (County Council) w. Gary Lee Hooser (County Council) x. Ricky R. Watanabe (County Clerk) y. Jade K. Fountain - Tanigawa (Deputy County Clerk) z. Ernest William Barreira (Assistant Chief Procurement Officer /Budget Chief) aa. Kipukai L.P. Kualii (County Council) bb. Stephen W. Long (Kaua`i Historic Preservation Review Commission) cc. Nadine Kuniko Nakamura (Managing Director) dd. Robert Frank Westerman (Fire Chief) ee. Frederick Kamuela Cobb -Adams (Housing Agency) f£ Sally Ann Motta (Deputy Director of Finance) gg. Victoria Lea Wichman (Kaua`i Historic Preservation Review Commission) hh. Gerald Shigemi Matsunaga (Liquor Control Ms. Tabura moved to accept the disclosures and Commission) deem them complete except for f, n, t, u, and cc. Mr. de la Pena seconded the motion. Motion carried 7:0 Announcements Next Meeting: Friday, February 20, 2015 — 1:00 p.m. Adjournment Chair Perry declared the meeting adjourned at 2:36 p.m. Board of Ethics Open Session January 16, 2015 Submitted by: 0I 1 Barbara Davis, Staff Support Clerk O Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Warren Perry, Chair