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HomeMy WebLinkAbout2015_0320_AgendaPacketWarren Perry Chair Maureen Tabura Vice -Chair Ryan de la Pena Secretary COUNTY OF KAUAI BOARD OF ETHICS NOTICE OF MEETING AND AGENDA Friday, March 20, 2015 1:00 p.m. or shortly thereafter Mo`ikeha Building, Liquor Conference Room 3 4444 Rice Street, L-ihu'e, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of February 20, 2015 Members: Kathy Clark Calvin Murashige Brad Nagano Mary Tudela COMMUNICATIONS BOE 2015 -03 Communication dated February 20, 2015 to the Chair of the Board of Ethics from Kathy Clark resigning her position on the Board of Ethics effective April 1, 2015 BOE 2015 -04 Notice to the County Council from Councilmember Kaneshiro of a possible conflict of interest regarding Bill No. 2571 relating to the development plans, and future growth areas for the L-1hu`e Planning District BOE 2015 -05 Notice to the County Council from Councilmember Kaneshiro of a possible conflict of interest regarding Bill No. 2576, relating to establishing regulations, procedures, zoning, development plans, and future growth areas for the South Kauai Planning District, and establishing exceptions, modifications, and additions to Chapter 8 and Chapter 9, Kauai County Code 1987, as amended (South Kauai Community Plan) BOE 2015 -06 Communication dated March 5, 2015 from Council Vice Chair Kagawa requesting the Board to review its determination on the finding of a conflict of interest as relates to Councilmember Kaneshiro Grove Farm and Haili Moe An Equal Opportunity Employer REOUEST FOR AN ADVISORY OPINION RAO 15 -007 Request of 3/10/15 from Councilmember Kaneshiro for a reconsideration of the Board's decision on RAO 15 -006 that there is a conflict of interest for him to participate in Council hearings and voting as relates to community plan amendments and other matters not specific to HMI but that Council action may have an effect on these companies DISCLOSURES a. Shaylyn Kehaunani Kimura (Public Access /Open Space Commission) b. Robert Crowell (Salary Commission) c. Shirley T. Akita (Liquor Control Commission) d. Stephen Francis Hall (First Deputy County Attorney) e. Cheryl Ann Stiglmeier (Charter Review Commission) f. Nadine Kuniko Nakamura (Managing Director) EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes § §92-4 and 92 -5 (a) (2)(4), 92 -9 (a)(1 -4) (b), the purpose of this executive session is to receive and approve Executive Session minutes and to consult with the Commission's legal counsel on issues pertaining to the Commission's and the County's powers, duties, privileges, immunities, and/or liabilities as they may relate to this item, deliberate and take such action as appropriate. ES -004: Regular Executive Session Minutes of February 20, 2015 Pursuant to H.R.S. §92 -4 and H.R.S. 92 -5 (a) (2) and (4), the purpose of this executive session is to consider the evaluation, dismissal or discipline of an employee or officer of the County in which charges have been alleged against an employee or officer where consideration of matters affecting privacy will be involved; provided that if the individual concerned requests an open meeting, an open meeting shall be held; and to consult with the Board's legal counsel on issues pertaining to the Board's and the County's powers, duties, privileges, immunities, and/or liabilities as they may relate to this item, deliberate and take such action as appropriate. ES -005: BOE 15 -001 Complaint received 12/8/14 alleging an employee or officer of the county has breached the Code of Ethics as set forth in the Kauai County Charter and the Kaua'i County Code 1987 in the performance of his/her duties (on- going) RETURN TO OPEN SESSION Ratify Board of Ethics actions taken in Executive Session for items: ES -004 and ES -005 ANNOUNCEMENTS Next Meeting: Friday, April 17, 2015 —1:00 p.m., Mo`ikeha Building, Liquor Conference Room 2 1 P a g e Board of Ethics — March 20, 2015 ADJOURNMENT NOTICE OF EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92 -7 (a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92 -4 and shall be limited to those items described in HRS §92 -5(a). c: Nicholas Courson, Deputy County Attorney PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24 -hours prior to the meeting indicating: 1. Your name and if applicable, your position/title and organization you are representing; 2. The agenda item that you are providing comments on; and 3. Whether you will be testifying in person or submitting written comments only. 4. If you are unable to submit your testimony at least 24 hours prior to the meeting, please provide 10 copies of your written testimony at the meeting clearly indicating the name of the testifier; and While every effort will be made to copy, organize and collate all testimony received, materials received on the day of the meeting or improperly identified may be distributed to the members after the meeting is concluded. The length of time allocated to persons wishing to present verbal testimony may be limited at the discretion of the chairperson or presiding member. Send written testimony tw. Board of Ethics Attn: Barbara Davis Office of Boards & Commissions 4444 Rice Street, Suite 150 Lzhu`e, HI 96766 Email: bdavis@kauai.gov Fax: 241 -5127 Phone: 241 -4919 SPECIAL ASSISTANCE If you need an alternate format or an auxiliary aid to participate, please contact the Boards & Commissions Support Clerk at 241 -4919 at least five (5) working days prior to the meeting. 3 Page Board of Ethics — March 20, 2015 ;' COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee: BOARD OF ETHICS Meeting Date February 20, 2015 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:01 p.m. End of Meeting: 2:03 p.m. Present Chair Warren Perry; Vice Chair Maureen Tabura; Secretary Ryan de la Pena. Members: Kathy Clark; Brad Nagano (1:12 p.m.) Staff: Deputy County Attorney Nicholas Courson; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Paula Morikami Excused Members: Calvin Murashige; Mary Tudela Absent SUBJECT DISCUSSION ACTION Call To Order Chair Perry called the meeting to order at 1:01 p.m. with 4 members present. Approval of Minutes Regular Open Session Minutes of January 16, 2015 Ms. Tabura moved to approve the minutes as circulated. Mr. de la Pena seconded the motion. Motion carried 4:0 Communication BOE 2015 -02 Notice to the County Council from Council Chair Rl of Mr. de la Pena moved to receive the communication. Ms. Tabura seconded the motion. Motion carried 4:0 a possible conflict of interest regarding the Salary Commission's Resolution No. 2014 -1 as relates to salaries of certain officers and employees of which his brother is one of the officers or employees who may benefit from the proposed salary increase Request for an Advisory Opinion b RAO 15 -005 Request of 1/7/15 from Council Chair Rapozo as to whether there is a conflict for him to participate in deliberation and decision - making on the Salary Commission's Resolution 2014 -1 of which his brother may benefit from the proposed salary increase Ms. Tabura pointed out that a page was missing from the Resolution provided by Council Chair Ra ozo's office which makes it hard to render a d Lh Board of Ethics Open Session February 20, 2015 0M SUBJECT I DISCUSSION I ACTION decision. Ms. Clark was not sure it was significant because the question was whether or not he should be involved in his brother getting a raise, but Ms. Tabura was unsure since she did not know what was missing in the Resolution. Ms. Tabura noted the Resolution as presented does not show any conflict because there is no listing for the Director of Liquor. Staff explained the page was missing from the original submittal, but the salary is in the same range as others listed and the position is part of the Salary Resolution, Ms. Morikami explained all of the positions that the Salary Resolution covers totals 57 positions. Chair Mel Rapozo's brother is the Director of Liquor and is one of the 57 positions listed. Chair Perry said if there is or is not a conflict they need to nail down where it falls in the Code of Ethics, and he does not see it. 20.02 E: uses official position to secure a special benefit, but is it a special benefit when there are 56 others including himself. Ms. Tabura questioned how the Council can pass a Resolution when it benefits themselves. Chair Perry thought the name of the game was "special benefit" Ms. Clark asked how they get to vote on their own pay raise. Staff explained that Council used to set their own salaries, but they do not do that anymore. It is done by the Salary Commission but increases for Council could not be enacted for another two years. Ms. Clark stated she has no problem with people getting raises but voting to give myself or my brother a Ms. Clark moved that there is a conflict of interest. Ms. Tabura seconded the motion for discussion purposes. Board of Ethics Open Session February 20, 2015 Page 3 SUBJECT DISCUSSION ACTION raise isn't the best way to do it. Ms. Tabura said they all have to vote for themselves, and this makes it hard even though she did not think it was a real conflict. Ms. Morikami said an increase in the Salary Resolution for Councilmembers would not take effect until after the next election so they would not necessarily be voting for themselves and it does not affect the current sitting Councilmembers. Motion failed 0:4 Ms. Tabura moved that there is no conflict. Ms. Clark seconded the motion. Deputy Attorney Courson asked if the Board wanted to address the Council's Rules 5 and 8 mentioned in Chair Rapozo's request. Chair Perry said there was no opinion on the Council Rules. Chair Perry asked if it would be okay with the Board for clarification purposes that they render an opinion that it is not a special benefit. Ms. Clark stated that was not Mr. Rapozo's question so should they render an opinion about something they are not asked. Deputy Attorney Courson said he would find it useful in writing the advisory opinion versus just saying there is no conflict, and the opinion may benefit other County employees and serve as precedential value. Ms. Morikami further clarified that the Salary Commission only sets the maximum allowed and it is up to the appointing authority whether they want to give the maximum allowed salary. Gerald Rapozo, Director of Liquor Control, is appointed and hired by the Liquor Commission so they determine whether or not he gets an increase and how much. Motion carried 4:1 recusal -Na ano RAO 15 -006 Request of 1/12/15 from Councilmember Kaneshiro as to whether there is a conflict of interest for him to participate in Council hearings and voting as relates to community plan amendments and other matters not specific to HMI but that Council action may have an effect on these com ames Board of Ethics Open Session February 20, 2015 SUBJECT DISCUSSION ACTION Chair Perry noted that an updated letter from Councilmember Kaneshiro was received at the start of the meeting. Deputy Attorney Courson pointed out that however they frame the motion Councilmember Kaneshiro did set out four questions in his letter. Ms. Clark moved that there is a conflict on nos. 1, 2, 3, and 4. Mr. de la Pena seconded the motion for discussion purposes. Ms. Clark stated she does not know what Haili Moe is and she does not know Mr. Kaneshiro's total relationship to it so it is difficult to figure out what type of impact there may be on this whole thing. Deputy Attorney Courson thought Councilmember Kaneshiro might have explained it a bit more at the previous meeting. Mr. Nagano noted from the minutes of January 16 that Mr. Kaneshiro's percentage of ownership in Haili Moe is .207183 %. Ms. Clark again said she does not know what Haili Moe is or what it does and did not feel Mr. Kaneshiro described it very well because he talks mostly about Grove Farm. Mr. Nagano said Grove Farm is a major owner of HMI. Ms. Clark said Mr. Kaneshiro indicated he is also an employee of Grove Farm so it is not very clear; is he getting paychecks from the same company twice? Ms. Clark noted she was not clear on this at the last meeting and is even less clear this time because of the Community Plan which she does know something about; the Community Plans project long term business relationships, but she does not understand the impact here. Ms. Clark asked if they should table this request until Mr. Kaneshiro can explain it. Deputy Attorney Courson reminded the Board that the Charter requires an opinion be rendered within 45 days. If the Board passes on this question then it is understood to be acceptable. Deputy Attorney Courson said maybe they could do an interim opinion that has an express disclaimer based on what information is available that this appears to be a conflict. If Councilmember Kaneshiro wants to come back and supplement that the Board of Ethics Open Session February 20, 2015 mom SUBJECT DISCUSSION ACTION Board is open to changing its position. Chair Perry noted that the motion is that Councilmember Kaneshiro is in conflict with all 4 inquiries. Ms. Clark said assuming the motion passes would they want the motion to say there appears to be a conflict with the information they have, which opens the door for him to come back. Deputy Attorney Courson said.that would be his suggestion if the Board can provide some discussion that justifies writing wiggle room into the Advisory Opinion to invite him to come back. There was something very similar to this previously that was ruled no conflict. Ms. Clark said her point is that she does not know enough about this. Ms. Tabura agreed that she would need to better know what his company does and to better understand how it could potentially impact his role. Chair Perry asked if it would assist Mr. Kaneshiro or anyone looking at the Opinion to cite the provisions. Deputy Attorney Courson said it would be very helpful to say this is a conflict under which provision(s) and allow him to address the Board's concerns directly. Ms. Clark suggested the provisions could be §20.02 C, D, and E. Chair Perry said §20.04 B: any elected official, appointed officer....... who possesses, not as much as someone who goes out and acquires, and that is the problem with §20.02 C. It seem like while you are an officer or employee you acquire that financial interest. Meanwhile §20.04'B says if you possess that financial interest. §20.02 C seems to be prospective, after you are employed then you acquire the financial interest. Chair Perry did not know if Mr. Kaneshiro was appearing on behalf of special interest ( §20.02 B); he might be wearing his County Council hat and not appearing on behalf but taking action that might reasonably infer that he has a conflict. Chair Perry asked for an amendment Board of Ethics Open Session February 20, 2015 SUBJECT DISCUSSION ACTION to the motion to nail down provisions that appear to make it a conflict. Ms. Clark amended the original motion to include §20.02 C, D, E and §20.04 B in support of the conflict. Mr. de la Pena seconded the amendment. Motion to amend carried 5 :0 Motion on the original motion as amended carried 5:0 Disclosures a. Lawrence John Dill (County Engineer) b. George K. Costa (Economic Development Director) c. Dee M. Crowell (Deputy Planning Director) d. Jan Hashizume (Cost Control Commission) e. Charles G. Kin (g (Salary Commission) f. Janine M.Z. Rapozo (Director of Human Resources) Mr. de la Pena moved to receive all the disclosures and deem them complete. Ms. Clark seconded the motion. Motion carried 5:0 Executive Deputy Attorney Courson stated that pursuant to Session. H.R.S. §924, H:R.S. §92 -5 (a) (2) (4) the Board is going into Executive Session for items ES -002 and ES -003: BOE 15 -001 as fully described in the posted agenda. Ms. Tabura moved to go into Executive Session at 1 :40 p.m. Mr. de la Pena seconded the motion. Motion carried 5:0 Return to Open Ratify Board of Ethics actions taken.in Executive Session for items: Mr. de la Pena moved to ratify the actions taken in Session ES -02 and ES -003 Executive Session. Mr. Nagano seconded the motion. Motion carried 5:0 Announcements Next Meetin : Friday, March 20, 2015 Adjournment I Chair Perry adjourned the meeting at 2:03 p.m, Board of Ethics Open Session February 20, 2015 Page 7 Submitted by: Barbara Davis, Staff Support Clerk O Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: Warren Perry, Chair meeting. f l Reviewed and Approved by: Warren Perry, Chair meeting. d y FEB 2 0 2015 i �'�y /� d U V l"1. February 20, 2015 Warren Perry, Chair Paula Morikami, Administrator Board of Ethics Office of Boards and Commissions 4444 Rice Street, Ste. 150 Lihue, Hawaii 96766 Dear Chair Perry and Ms Morikami, It is mixed emotions I write to let you know that I will be resigning my position on the Board of Ethics on April 1, 2015.1 will be retiring and relocating to the mainland. It has been an honor and a pleasure serving the County of Kaua` i. I will miss all of you and wish you the very best while you continue to do your good work. With aloha, Ka y Clark, RI�1, BSN, MBA, FACHE 45 COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura Council Services Division 4396 Rice Street, Suite 209 Llhu`e, Kauai, Hawaii 96766 MEMORANDUM February 26, 2015 OFFICE OF THE COUNTY CLERK Ricky Watanabe, County Clerk Jade K. Fountain - Tanigawa, Deputy County Clerk TO: Mel Rapozo, Council Chair and Members of the Kauai County Council FROM: Arryl Kaneshiro, Councilmember Ay, RE: POSSIBLE CONFLICT OF BILL NO, 2571 RELATING TO AND FUTURE GROWTH AREA S DISTRICT Telephone (808) 241 -4188 Fax (808) 241 -6349 Email cokcouncil@kauai.gov d5 p � 1 INTEREST REGARDING THE DEVELOPMENT PLANS, FOR THE LIHU`E PLANNING Pursuant to Section 20.04(B) of the Kauai County Charter, Section 3 -1.6 of the Kauai County Code, and Rule Nos. 5 and 8 of the Rules of the Council of the County of Kauai, I hereby provide written disclosure on the record of a possible conflict of interest relating to the Bill No. 2571 relating to the development plans, and future growth areas for the Lihu`e Planning District. On Friday, February 20, 2015, during their regular scheduled meeting, the Board of Ethics responded to my inquiry advising that a conflict may exist. For this reason, I am recusing myself from discussing or participating in the decision making regarding this matter. Thank you for your attention and consideration of this matter. Should you have any questions, please feel free to contact me. CNT:lc cc: March 11, 2015 Council Meeting Agenda County of Kauai Board of Ethics ✓ Nadine K. Nakamura, Managing Director Michael A. Dahilig, Director of Planning Mauna Kea Trask, County Attorney Council Services Staff AN EQUAL OPPORTUNITY EMPLOYER COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura TO: FROM: Council Services Division 4396 Rice Street, Suite 209 LViu`e, Kauai, Hawaii 96766 MEMORANDUM March 2, 2015 OFFICE OF THE COUNTY CLERK Ricky Watanabe, County Clerk Jade K. Fountain - Tanigawa, Deputy County Clerk Mel Rapozo, Council Chair and Members of the Kauai County Council Arryl Kaneshiro, Councilmember gIC Telephone (808) 2414188 Fax (808) 241 -6349 Email cokcouncil@kauai.gov RE: POSSIBLE CONFLICT OF INTEREST RELATING TO BILL NO. 2576, RELATING TO ESTABLISHING REGULATIONS, PROCEDURES, ZONING, DEVELOPMENT PLANS, AND FUTURE GROWTH AREAS FOR THE SOUTH KAUAI PLANNING DISTRICT, AND ESTABLISHING EXCEPTIONS, MODIFICATIONS, AND ADDITIONS TO CHAPTER 8 AND CHAPTER 9, KAUAI COUNTY CODE 1987, AS AMENDED (SOUTH KAUAI COMMUNITY PLAN) Pursuant to Section 20.04(B) of the Kauai County Charter, Section 3 -1.9 of the Kauai County Code 1987, as amended, and Rule Nos. 5 and 8 of the Council of the County of Kauai, I hereby provide written disclosure on the record of a possible conflict of interest relating to Bill No. 2576, relating to Establishing Regulations, Procedures, Zoning, Development Plans, and Future Growth Areas for the South Kauai Planning District, and Establishing Exceptions, Modifications, and Additions to Chapter 8 and Chapter 9, Kauai County Code 1987, as amended (South Kauai Community Plan), On Friday, February 20, 2015, during their regular scheduled meeting, the Board of Ethics responded to my inquiry advising that a conflict may exist. For this reason, I am recusing myself from discussing or participating in the decision making regarding this matter. If you have any questions, please feel free to contact me. Thank you for your attention to this matter. JA:lc cc: March 11, 2015 Council Meeting Age da County of Kauai Board of Ethics Nadine K. Nakamura, Managing Director Michael A. Dahilig, Director of Planning Mauna Kea Trask, County Attorney Council Services Staff AN EQUAL OPPORTUNITY EMPLOYER '5067 2° !,6�" 0,5' COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura Council Services Division 4396 Rice Street, Suite 209 LIu`e, Kauai, Hawaii 96766 March 5, 2015 Calvin Murashige, Chairperson Board of Ethics c/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Lihu`e, Hawaii 96766 OFFICE OF THE COUNTY CLERK Ricky Watanabe, County Clerk Jade K. Fountain - Tanigawa, Deputy County Clerk Dear Chair Murashige and Members of the Board of Ethics: Telephone (808) 2414188 Fax (808) 241 -6349 Email cokcouncil @kauai.gov I Oi At the Board of Ethics ( "B.O.E. ") meeting on February 20, 2015, the B.O.E. addressed Councilmember Arryl Kaneshiro's inquiry as to "Whether there is a conflict of interest to participate in Council hearings and voting as it relates to community plan amendments and other matters not specific to HMI but that Council action may have an effect on these companies." The B.O.E. made a determination that a conflict exists. I would like to inquire as to when the B.O.E.'s written response advising of Councilmember Kaneshiro's conflict will be available. I am anxious to review the reasoning that determined the existence of his conflict, as I disagree with the B.O.E.'s findings. To my knowledge, the community plan amendments do not give Councilmember Kaneshiro, Grove Farm, or Haili Moe any financial benefit or advantage, and in fact, such plans simply serve as the framework or guideline for future development. I humbly ask that the B.O.E. review its determination, and that Councilmember Kaneshiro be included in the discussion so that he may respond to any questions as to his perceived conflict. As time is of the essence, please consider placing this item on your next meeting agenda or possibly scheduling a special meeting for this purpose. The B.O.E.'s findings of a conflict directly affects our Council and Committee meetings as the absence of Councilmember Kaneshiro's participation reduces the number of members available to vote on the specific community plan amendments. Without Councilmember Kaneshiro's participation, there is a likelihood of a tie vote which could stall the community plan amendments for an unreasonable amount of time. Thank you for your consideration. Should you have any questions, please feel free to contact me at 241 -4094. Sincerely, ROSS KAGAWA Councilmember, Kauai County Council CNT:mn <�F C °p 0 e-5 AN EQUAL OPPORTUNITY EMPLOYER COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura Council Services Division 4396 Rice Street, Suite 209 Lihu`e, Kauai, Hawaii 96766 March 10, 2015 Warren Perry, Chair Board of Ethics c/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Iahu`e, Hawaii 96766 Dear Chair Perry and Members of the Board of Ethics: OFFICE OF THE COUNTY CLERK Ricky Watanabe, County Clerk Jade K. Fountain - Tanigawa, Deputy County Clerk MR Telephone (808) 241 -4188 Fax (808) 241 -6349 Email cokcouncil @kauai.gov I ask that the Kauai County Board of Ethics ( "BOE ") review and reconsider the decision regarding my letter that was rendered at its February 20, 2015 meeting. In Advisory Opinion RAO 15 -003 rendered at its January 16, 2015, the Board of Ethics (BOE): concluded that Councilmember Kaneshiro's employment by HMI and Grove Farm did not reasonably tend to create a conflict with his responsibilities to participate in Council hearings and voting that relate to real property tax legislation and other matters. meeting on At its next meeting on February 20, 2015, the Board of Ethics (BOE) was asked to render an opinion on the following questions: 1. I would ask the Board to support my belief that sitting and voting on areas of general interest is within the ethical standards of this County? 20 It is my belief that sitting and voting on the Lihu`e Community Plan is within the ethical standards of this County? 3. It is my belief that sitting and voting on the South Kauai Plan is within the ethical standards of this County? 4. If a particular amendment or change to the Lihu`e or South Kauai draft plans come up that is directly related to HMI, or is at HMI's request, is my belief that sitting and voting on these amendments or changes will be a conflict of interest? The Board opined that a conflict existed with regard to each item based on Kauai County Charter provisions §20.02 C, D, E and §20.04 B. kjqo (5 -del AN EQUAL OPPORTUNITY EMPLOYER Warren Perry, Chair, Board of Ethics Re: Reconsideration of February 20, 2015 meeting March 10, 2015 Page 2 I ask that the Board of Ethics (BOE) reconsider its ruling for the following reasons: L It appears that the Board of Ethics (BOE's) ruling in RAO 15 -003 conflicts with its ruling made at its February 20, 2015 meeting with respect to the first matter under consideration. RAO 15 -003 allows me to participate in matters that are not specific to HMI and Grove Farm, but may affect those companies. However, the Board of Ethics (BOE) then prohibited me from sitting and voting on matters that are of general interest. I ask that the Board of Ethics (BOE) reconsider its vote on item number one in light of its ruling in RAO 15 -003, 2, Section 20.02 of the Kauai County Charter, Section 20.02. of the Kauai County Charter reads in pertinent part as follows: No officer or employee of the county shall: C. Acquire financial interest in business enterprises which he may be directly involved in official action to be taken by him. D. Appear in behalf of private interests before any county board, commission or agency. E. Use his official position to secure a special benefit, privilege or exemption for himself or others. I do not believe that I have a conflict under Section 20.02. With regard to subsection 20.02.C., I do not have a financial interest in Grove Farm and the interest that I have in HMI was not acquired while I was a Councilmember. With regard to subsection 20.02.D., I am not appearing on behalf of Grove Farm or HMI. Both community plans are before the Council after being reviewed by the Planning Department, as required by Chapter 8 of the Kauai County Code 1987, as amended. I had no role in initiating or presenting either plan to the Planning Commission or the Council, and am not representing Grove Farm or HMI with regard to either plan. With regard to subsection 20.02.E., I again had no role in initiating or presenting either plan to the Planning Commission or Council. The plans impact the Lihu`e and South Shore areas and not just properties owned by Grove Farm or HMI. It seems overly broad to prohibit me from participating in discussing or voting on both plans in their entirety and I ask that the prohibition be limited to any Council proposed amendments or modifications that would affect Grove Farm or HMI properties. Warren Perry, Chair, Board of Ethics Re: Reconsideration of February 20, 2015 meeting March 10, 2015 Page 3 2. Section 20.04 of the Kauai County Charter. Subsection 20.04.B. of the Kauai County Charter reads as follows: B. 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 with his duties or authority, or who is an owner, officer, executive director or director of an organization, or whose member of his immediate family, which includes parents, siblings, spouse or children, is an owner, officer, executive director or director of an organization in any matter pending before him shall make full disclosure of the conflict of interest and shall not participate in said matter. Under this subsection, I do not believe that I have a conflict of interest because Grove Farm owns lands impacted by either plan. I do not have an interest in Grove Farm and neither I nor any member of my immediate family are owners, officers, executive directors or directors of Grove Farm. With regard to HMI, I have a .21 percent interest in HMI. Neither I nor any member of my immediate family are officers, executive directors or directors of HMI. Again, the plans impact the L3hu`e and South Shore areas and not just properties owned by Grove Farm or HMI. I ask that the prohibition be limited to any Council proposed amendments or modifications that would affect Grove Farm or HMI properties. Given the foregoing, I respectfully request that the Board of Ethics (BOE) review and reconsider the decision rendered at its February 20, 2015 meeting and limit the restriction to any Council proposed amendment or modification to the plans that would directly involve those properties owned by Grove Farm or HMI. Thank you for your attention to this matter. I am attaching my previous correspondence for your review. I will attend your next meeting and am willing to answer any questions that you may have. Sincerely, OJI**j aw ARRYL KANESHIRO Councilmember, Kauai County Council PM:lc Attachments COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura Council Services Division 4396 Rice Street, Suite 209 Lilde, Kauai, Hawaii 96766 January 12, 2015 Calvin Murashige, Chairperson and Members of the County of Kauai Board of Ethics c/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Lihu`e, Hawaii 96766 Retards OFFICE OF THE COUNTY CLERIC Ricky Watanabe, County Clerk Jade K. Fountain- Tanigawa, Deputy County Clerk Dear Chair Murashige and Members of the Board of Ethics, Telephone (808) 241 -4188 Fax (808) 241 -6349 Email cokcouncil@kauai.gov This letter serves to follow my previous request to the Board of Ethics ( "B.O.E. ") seeking clarification and guidance concerning my participation in voting as a Member of the Kauai County Council. Much attention has been called to my employment at Haili Moe, Inc. and its landholdings ( "HMI"). HMI is one of the largest landowners in the County which makes it an easy target for conflict of interest inquiries. However, as mentioned in my earlier request to the B.O.E., I am neither an officer nor do I hold a significant financial interest in the company. Rather than seeking an issue by issue determination from the B.O.E. concerning each potential conflict of interest, I would like clarification concerning my participation in deliberating on measures that relate to the general interest of the public as compared to those measures directly affecting my employer. I am clear that if a specific request for action directly involving HMI or its landholdings are brought before the Council, I would recuse myself. For example, in situations where a land lease between the County and HMI is brought for approval or a HMI initiated zoning amendment is presented as a bill, I would recuse myself. However, my impression is that in areas of general interest where the general public or community would be affected by a proposed law (including my employer), I may weigh -in on the subject matters. These would be areas, relating to the setting of tax rates and County - initiated community plan amendments, as examples. As mentioned above, I am not an officer nor do I hold a significant financial interest in HMI, yet the Company will feel the effect of most laws passed by the Council due to its significant landholdings. If this causation was the rationale for determining a conflict of interest, I would need to recuse myself from virtually every proceeding before the Council. Under such a strict reading, every Councilmember who owns a home would need to recuse themselves from approving tax rates. AV WIT T A T AP1PA1t TT TWrrV PAXPT nVPP A &Vkt. lat rn Calvin Murashige, Board of Ethics, Chairperson Re: Seeking Guidance Concerning my Participation January 12, 2015 Page 2 I hereby request that the B.O.E. provide me with an advisory opinion regarding my participation in Council hearings and voting, that relate to community plan amendments and other matters which are not specific to HMI but that Council action may have an affect on these companies. Should you need additional information, you may contact me at my Council Office. The number there is (808) 2414188. You may send any correspondence to me at the Office of Council Services, whose address is listed above. Thank you for your attention to this matter. Sincerely, a,r j 0 ARRYL KANESHIRO Councilmember, Kauai County Council PM:mn Camissicos Administrator COUNTY COUNCIL Mel Rapozo, Chair Ross Kagawa, Vice Chair Mason K. Chock Gary L. Hooser Arryl Kaneshiro KipuKai Kuali`i JoAnn A. Yukimura Council Services Division 4396 Rice Street, Suite 209 LYhu`e, Kauai, Hawaii 96766 February 17, 2015 Warren Perry, Chairperson County of Kauai Board of Ethics c/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Lihu`e, Hawaii 96766 Dear Chair Perry and Members of the Board of Ethics: OFFICE OF THE COUNTY CLERK Ricky Watanabe, County Clerk Jade K. Fountain - Tanigawa, Deputy County Clerk Telephone (808) 241 -4188 Fax (808) 241 -6349 Email cokcouncil@kauai.gov I want to express my sincere apologies for not being able to make my upcoming hearing on Friday, February 20, 2015 as I will be attending the National Association of Counties (NACo) Legislative Conference in Washington D.C. Due to my absence, I thought it would be helpful to write a supplemental letter to further clarify my position on the upcoming County - initiated community plans. There are two (2) community plans (Lihu`e Community Plan and South Kauai Community Plan) that will be coming before the County Council. These plans were put together in collaboration with the County of Kaua`i's Planning Department, sub - consultants, and members of the community. A community working group /community advisory committee was formed to assist each plan. These groups were picked by the Mayor to represent diverse stakeholders from different geographic areas within the planning area and to provide early and ongoing input to the community plan. The public was also welcome to attend meetings and participate in the planning. The purpose of the plans is to shape and guide the future growth, development, and character of the designated communities for the next twenty (20) years. For example, the plan looked at the current housing inventory of an area and projected what it would need to be in twenty (20) years to accommodate population growth. The group was then tasked with formulating where the growth would be located, what it would like, etcetera. I would like to emphasize that these community plans were developed by a community driven process, then approved by the Planning Commission, and although it sets the framework for future growth, it does not provide the owner with entitlements. Land entitlements will need to be vetted through the regular County process. AN EOUAL OPPORTUNITY EMPLOYF,R , "&94k y Warren Perry, Chairperson, County of Kauai Board of Ethics Re: Conflict of Interest for the Lihu`e Community Plan and South Kauai Community Plan February 17, 2015 Page 2 The Lihu`e Community Plan incorporates land owned by Haili Moe, Inc. and its landholdings (HMI). I was not a member on their community working group, but HMI did have a representative from our office. The planning for the South Kauai Community Plan began mid 2013 and also incorporates land owned by HMI. HMI had a representative from our office as a member of on the community advisory committee and I was picked by the Mayor to serve as the Oma`o community representative. I was born and raised in Oma`o and my family still resides there. As mentioned in my previous letter, I am not an officer nor do I hold a significant financial interest in HMI, yet the company will always feel the effect of most laws passed by the Council due to its large landholdings. I am seeking guidance from the Board to provide a balanced approach and guidance toward evaluating when a conflict exists, while I maintain my private employment. To further clarify my questions, I am seeking an opinion on the following: 1. I would ask the Board to support my belief that sitting and voting on areas of general interest is within the ethical standards of this County? 2. It is my belief that sitting and voting on the Lihu`e Community Plan is within the ethical standards of this County? 3. It is my belief that sitting and voting on the South Kauai Plan is within the ethical standards of this County? 4. If a particular amendment or change to the Iahu`e or South Kauai draft plans come up that is directly related to HMI, or is at HMI's request, is my belief that sitting and voting on these amendments or changes will be a conflict of interest? Thank you again for your time and consideration. Should you need additional information, you may contact me at the Office of the County Clerk, Council Services Division at 241 =4188. You may send any correspondence to me at the Office of the County Clerk, whose address is listed above. Sincerely, ARRYL KANESHIRO Councilmember, Kauai County Council PM:cy IZI I BOARD OF ETHICS COUNTY OF KAUAI '15 FEB 24 P12 :30 ADVISORY OPINION RAO 15 -003 VF F4Ce E Q F THF Nl � FY CLERK The Kauai County Board of Ethics (the "Board' �, having reviewed a request for�'oiy opinion from Councilmember Arryl Kaneshiro, and having obtained all the information deemed necessary by the Board to make a proper determination regarding the subject request, renders this Advisory Opinion (RAO 15 -003) pursuant to Section 20.05 (D) (2) of the Charter of the County of Kauai and Rule 5, of the Kauai County Board of Ethics Rules and Regulations. The Board received a request dated December 17, 2014, from Councilmember Kaneshiro, in which he disclosed that he is employed by both Haile Moe, Inc. ( "HMI') and Grove Farm Company, Inc. ("Grove Farm's as a project specialist. Additionally, Councilmember Kaneshiro has a stock ownership of about .21 % in HMI. Finally, Councilmember Kaneshiro made clear that he is not an officer or director of either HMI or Grove Farm. Counciltnember Kaneshiro specifically requested that the Board provide him with an advisory opinion regarding his participation in Council hearings and voting that relate to real property tax legislation and other matters which are not specific to HMI or Grove Farm, but may affect those companies. On January 16, 2015, the Board convened in regular session to consider providing an advisory opinion on the above referenced request. The Board was advised that Councilmember Kaneshiro was in attendance at the meeting to respond to any questions. . 1.W With regard to this request, the Board considered the following provisions of the Kauai County Charter in rendering this Advisory Opinion: Section 20.02. No officer or employee of the county shall: C. Acquire financial interest in business enterprises which he may be directly involved in official action to be taken by him. E. Use his official position to secure a special benefit, privilege or exemption for himself or others. • . L Section 20.04B. 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 with his duties or authority, or who is an owner, officer, executive director or director of an organization, or whose member of his immediate family, which includes parents, siblings, spouse or children, is an owner, officer, executive director or director of an organization in any matter pending before him shall make full disclosure of the conflict of interest and shall not participate in said matter. OPINION Based on the foregoing Code of Ethics provisions contained in the Charter and the County Code of Ordinances, the Board concluded that Councilmember Kaneshiro's employment by HMI and Grove Farm did not reasonably tend to create a conflict with his responsibilities to participate in Council hearings and voting that relate to real property tax legislation and other matters which are not specific to HMI or Grove Farm, but may affect those companies. The Board suggested that Councilmember Kaneshiro consult with counsel regarding gray areas and that he request additional Advisory Opinions if necessary in the future. Inasmuch as the Board's discussions and deliberations concerning this matter were conducted in a duly noticed open meeting of the Board of Ethics, no redacted version of the Advisory Opinion shall be prepared. With a quorum being present and voting, this opinion was rendered by the Board at its meeting on January 16, 2015. Members present and voting. Concurring: Warren Perry, Calvin Murashige, Brad Nagano, Kathy Clark, Ryan de la Pena, Maureen Tabura, and Mary Tudela. Dissenting: None Abstaining: None Excused: None Board of Ethics: Warren Perry, Chairperson 2