Loading...
HomeMy WebLinkAbout2015_0320_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved with corrections 4/17/15 Board/Committee: BOARD OF ETHICS Meeting Date March 20, 2015 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. I End of Meeting: 3:04 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 Nicholas Courson; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Paula Morikami; Support Clerk Darcie Allianic. Also: Councilmember Arryl Kaneshiro; Councilmember JoAnn Yukimura; Audience Member Ken Taylor Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Perry called the meeting to order at 1:00 p.m. with 7 members present. Approval of Minutes Regular Open Session Minutes of February 20, 2015 Following comments from Mr. Taylor on his testimony, Chair Perry Ms. Tabura moved to approve the minutes as circulated. Mr. de la Pena seconded the motion. Motion carried 7:0 requested that a copy of Mr. Taylor's written testimony on file with the office be attached to the minutes for the record. Page 7, line 4 change "prospective" to perspective Page 10, last line insert ovinion following the word "standing„ Page 11, line 19 insert a comma following no and before anymore Communications BOE 2015 -03 Communication dated February 20, 2015 to the Chair of the Ms. Tudela reluctantly moved to receive the communication. Mr. de la Pena seconded the motion. Motion carried 7:0 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 Ltihu`e Plannin Board of Ethics Open Session March 20, 2015 Page 2 SUBJECT DISCUSSION ACTION District Mr. Murashige moved to receive the communication. Mr. Nagano seconded the motion. Motion carried 7:0 BOE 2015 -05 Notice to the County Council from Councilmember Ms. Clark moved to receive the communication. Ms. Tudela seconded the motion. Motion carried 5:0 Kaneshiro of a possible conflict of interest regarding Bill No. 2576, relating to establishing regulations, procedures, zoning, development plans, and future areas for the South Kauai Planning District, and ,growth 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 Ms. Tabura moved to receive the communication. Mr. Nagano seconded the motion. Motion carried 7:0 Chair Ka ag wa 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 Request 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 communityl2lan amendments and other matters not specific to HMI but that Council action may have an effect on these companies Chair Perry noted for the record that Councilmember Kaneshiro was requesting a reconsideration of the action taken by the Board at the last meeting. Additionally there is a letter dated March 19, 2015, from Michael Dahilig, Director of Planning. Councilmember Kaneshiro apologized for missing the February meeting Board of Ethics Open Session March 20, 2015 Page 3 SUBJECT DISCUSSION ACTION due to being in Washington, D.C., attending aNACo (National Association of Counties) legislative conference. Mr. Murashige noted there was a statement in Mr. Kaneshiro's letter that it is his belief that sitting and voting on areas of general interest is within the ethical standards of this County. Mr. Kaneshiro said that was correct. Mr. Murashige noted that was his belief in the second question as well to which Mr. Kaneshiro said correct. Mr. Murashige asked if he also felt it within the ethical standards of the County in the third question to which Mr. Kaneshiro again said correct. With that belief Mr. Murashige asked why Mr. Kaneshiro submitted a request for an Advisory Opinion from the Board if he felt he was within the ethical standards of the County. Mr. Kaneshiro said when he was campaigning he said if there was any talk of him possibly having a conflict of interest he told people he would go to the Board of Ethics for an opinion. With the current request there might be confusion on what a community plan is or does and he did not think it would be good to try to justify it at Council; he stated he felt more comfortable bringing it to the Board for an opinion. Knowing there will be more issues in the future regarding general interest issues he would like a decision now to guide him. Mr. Murashige pointed out that the Board reacts to questions posed at the time; there is not a blanket approval of something. Mr. Murashige said if Mr. Kaneshiro felt question number 1 was within the ethical standards why he felt it was necessary to bring it before the Board. Mr. Kaneshiro said he is questioned a lot about his working for Grove Farm and having a conflict of interest on a lot of items. People have drawn big circles to connect him to things and he wants to narrow it down to a particular item and whether he has a conflict of interest. People have said he has a conflict of interest even on general items that affects the entire island, and not directed just at Grove Farm. If the Council is ruling on something that Board of Ethics Open Session March 20, 2015 Wom SUBJECT DISCUSSION ACTION is affecting everybody, and not just in particular to Grove Farm, he believes he could sit in on it. It would be just like the real property taxes. Grove Farm has industrial property, residential property, commercial property, and ag property. The County Council needs to look at the real property taxes and just because we may adjust those rates people could say he has a conflict of interest because Grove Farm has those types of properties. Mr. Kaneshiro said he feels it is a general item; it is not just increasing the rates for Grove Farm properties but as a general policy for the entire island. Ms. Clark stated that Grove Farm was the 600 pound gorilla and it does make people question. She continued saying he does not believe he has a conflict under Section 20.02 with regard to subsection 20.02 C in that he does not have a financial interest in Grove Farm and the interest he has in HMI was not acquired while he was a Councilmember. Her question is what is HMI; it does look like he has a connection and while the interest is not necessarily financial it may be he wants improvements for Grove Farm or HMI. On the surface it does appear to have a lot of conflict. Mr. Kaneshiro said when the County sets general policy such as increasing industrial rates, that would affect Grove Farm, but it is not being done to specifically affect Grove Farm as it is an island -wide policy. Mr. Kaneshiro distributed an organizational chart for the company. Haili Moe is Mr. Kaneshiro's employer with the sole owner of the company being Steve Case who also owns Grove Farm, Mahaulepu Farn, Visionary, and Haupu Land Company. Haili Moe is the managing company for all of these companies, and it is confusing because they call themselves Grove Farm since that is what people know with all of the land holdings. Ms. Tudela asked if the 93.25 percentage was the percentage of the revocable trust of Haili Moe to which Mr. Kaneshiro said yes and his percentage is .21. Ms. Tudela said she wanted to understand the Board of Ethics Open Session March 20, 2015 Page 5 SUBJECT DISCUSSION ACTION ownership portion because he said he is an employee of Grove Farm, but does not have any interest in Grove Farm which is very confusing. Mr. Kaneshiro said the value is around $12,000. Asked if he had two employers Mr. Kaneshiro said he did not know how to consider it but he does get a discretionary check at the end of the year from Grove Farm, which is like a bonus check along with a W -2 for it. Chair Perry asked the Board to look at what the issue is before it. Is it the interest he has, whether there is special benefit being bestowed by this man — the different portions of the Code of Ethics the Board has to make decisions on? Deputy Attorney Courson pointed out that the Attorneys often get requests about what the Code of Ethics means and they are willing to give their opinion, but we always caution people that the Board of Ethics is the final arbitrator which is why people come to the Board. Ms. Clark said looking at the Charter if a Councilmember thinks they may have a conflict then usually there is a reason that they think they have a conflict. It may not be something the Board knows but if they come to the Board to ask and then the Board gets a lot of pushback about the opinion she wonders why they are getting that pushback. Does he feel he does not have any conflict and if so why did he come to the Board in the first place. Councilmember Kaneshiro said it is the public's perception that he has a conflict of interest. For him to say he does not have a conflict of interest does not do him any justice and if he was to do that someone could file an Ethics complaint and he would still wind up before the Board. He wanted to be more proactive and come in for things he thinks people would say there may be a conflict. As for the reconsideration it is his understanding that there may have been some questions that weren't answered the last Board of Ethics Open Session March 20, 2015 Wom SUBJECT DISCUSSION ACTION time and because of the deadline the Board had to make a ruling. Chair Perry said what this Board has to do is to apply, interpret and make decisions regarding the Code of Ethics. In Mr. Kaneshiro's letter of March 10 he has a couple of citations to the Charter that the Board discussed at a prior meeting. Section 20.02 C, D, E and 20.04 B from his point of view these are the applicable provisions that should be applied relative to him. Councilmember JoAnn Yukimura said she did not think one could trust the person who is in a potential conflict of interest to make the decision. Ms. Yukimura wanted to make it clear she did not oppose Councilmember Kaneshiro as he does want to serve the people of Kauai. The question is whether the circumstances are such that a person called to act in the public interest will be in circumstances requiring the impossible task of serving two masters. Ms. Yukimura talked about community plans and their significance, and pointed out it is not only about whether a person should vote on parcels owned by his employer because he will also be acting on competitor's land. Decision makers sometimes make a decision based on appearance of conflict and other times actual conflict where the person voting has a financial stake and a salary or a bonus is a financial stake in the interest that is potentially in conflict. Section 20.04 B is not whether he is an owner, officer, executive director of an organization, but it is the first part of that section that any official who possess or acquires such interest as might reasonably tend to create a conflict with his duties or authority; that is the relevant question the Board has to determine. Mr. Murashige said that Ms. Yukimura had noted that we do not know what is in a person's mind and we are being asked to guess what is in a person's mind. Ms. Yukimura said no that is why they should not make their decision based on what is in the person's mind. The question should be whether the circumstances reasonably create a situation where the Board of Ethics Open Session March 20, 2015 Page 7 SUBJECT DISCUSSION ACTION person has to answer to two masters. Mr. Murashige noted he was confused because she had talked about the importance of developing this plan, how it could impact a variety of people or businesses and so it becomes a matter the Board needs to look at from that,perspective that it could have an economic impact. The planning itself is just as important as further actions down the road. We are being asked now whether someone who has a fractional interest in a company, which may be impacted by this plan, has a conflict. Ms. Yukimura said the question is whether the circumstances are such that there is a possibility that the decisions will be made not based in the public interest but for other reasons because of the circumstances of his employment and financial interests. Chair Perry said it was a good point about serving two masters — that is what conflict is. The questions Mr. Kaneshiro has posed from his perspective deals with matters that affect the whole community not specifically Grove Farm or his other employer. 20.04 B is the provision for serving two masters. There is a differentiation between 20.02 C and 20.04 B. 20.02 C says while you are an employee or officer you cannot acquire financial interest in business, enterprises, etc. 20.04 B says if you presently possess a vested interest that may tend to create a conflict with your duties, you declare it and not participate. Mr. Kaneshiro has such an interest either by being an employee of Haili Moe, Steve Case or Grove Farm which reasonably might tend to create a conflict with his duties and authority. Mr. Kaneshiro said he did not know if the Board wanted to go through each of his questions separately but question 1 deals with basic general interest items, which he brought up again because the first opinion was he could sit on real property tax voting but got voted no on this question which seems to counter the same opinion. General interest items are island -wide policy, island -wide discussion, not particular to Grove Farm, Deleted: prospective Board of Ethics Open Session March 20, 2015 Wom SUBJECT DISCUSSION ACTION and although it may affect Grove Farm it is not centered with them. If you read the rules strictly and own a house you definitely have a financial interest in real property taxes. Mr. Kaneshiro went on to talk about the community plans. Ms. Tudela commented that she is personally not comfortable supporting an opinion that says they will give anyone a blanket or broad opinion on conflict of interest; that is the objection. For that reason she hesitates with question number 1 because of its broadness. Ms. Tudela says she struggles as to when any councilmember would not be making a decision that is in the general interest of the public, whether it is specific to a particular project or generic in terms of a plan or a particular tax law. It is a presumption that whatever Council does will always be in the general interest of the public. It is the broadness of the question and she is not comfortable supporting particular decisions about very broad undefined questions. From a planning perspective a community plan has to be approved and if it is complicated, multi- faceted, etc., then she would personally lean toward suggesting that might not be a conflict if the plan is general in scope, all- island. Ms. Tudela had no comments on number 3 and number 4. Ms. Yukimura interjected that the plans are not all- island; they are in specific areas. In the Lihu`e plan, Grove Farm is the major landowner. It is not true to say it is of no consequence. Ms. Tudela said she did not hear herself say something was of no consequence; she is concerned with specificity of request because if the Board is asked to make an opinion on whether or not something is a conflict the more specific the request the easier it will be to make a determination on whether something is a conflict. Ms. Yukimura suggested dividing it up to say Mr. Kaneshiro has a conflict if it is on specific properties owned by Grove Farm but he can vote on other things. That does not always divide conflicts of interest Board of Ethics Open Session March 20, 2015 Wom SUBJECT DISCUSSION ACTION because everything is connected to everything else. Chair Perry asked Mr. Kaneshiro for comments on serving two masters relative to his masters being Grove Farm and the general public. Mr. Kaneshiro said he does not see himself on the Council as serving two masters; he is serving the island and what is best for the island. He stated he has recused himself from things he felt he had a conflict of interest on on such as right of entry for the landfill. Mr. Kaneshiro feels people voted him in because they have confidence that he is here for what is best for the island and they knew he worked for Grove Farm. Mr. Kaneshiro further explained he made his request broad because they only see the agenda the week before and there is no time to put in a letter and come back before the Board. He would be comfortable if the Board wanted to say island -wide policy, but to have to come in all the time he would miss a lot of the issues because of the timing. Mr. Kaneshiro went on to talk about plans versus entitlement. Chair Perry said there is nothing in the Rules or Code of Ethics that mentions plans versus entitlement. The question is can he serve two masters? Mr. Kaneshiro said there is a CAC (Community Advisory Committee), which Mr. Dahilig also touched on in his letter, as well as mentioning there is good community participation in the CAC. Besides the CAC who else is involved in putting forth together this recommendation that the Council would be voting on. Mr. Kaneshiro said it is the Planning Department that put together the group with the Mayor appointing the CAC committee who then go out to the community and help come up with a plan. From there it went to the Planning Commission where the public could comment and changes could be made before it went to the Council. Chair Perry asked what Mr. Kaneshiro's role was in the CAC. Mr. Kaneshiro said he was part of the South Shore Plan as the Oma`o representative. As the Oma`o representative there was not much he Board of Ethics Open Session March 20, 2015 Page 10 SUBJECT DISCUSSION ACTION could do as it has already been developed out and they wanted to keep it rural. Mr. Kaneshiro also stated he was not a member of the County Council while he was a member of the CAC, which started about two years ago. Ms. Yukimura further explained the Council's role in determining what the Community Plan says. Mr. Ken Taylor offered his comments on potential conflict of interest in that one cannot serve two masters (testimony on file with office). Ms. Clark said it is not about Grove Farm per se, it is about being employed by someone who has heavy interests in things Mr. Kaneshiro has to deal with. Ms. Clark used an analogy of the difficulty she would encounter if Hawaii Pacific Health, her employer, were involved in similar situations because she has loyalty to them and where her issues come from. No one wants to make this about Grove Farm; it is about having two masters. Chair Perry asked if there was a motion to reconsider the Board's decision. Deputy Attorney Courson said he thought Councilmember Kaneshiro had a good point in that there is a bit of conflict between the opinion the Board issued in January and the opinion issued in February. Board Member Tudela touched on it when she said she was not comfortable with giving a broad answer, but because the Board had time constraints the last time and they did not want to give a broad answer they gave the answer no. It is affirmatively a conflict which maybe we reconsider by withdrawing that answer and not give an answer until he comes back with specific questions. Right now Mr. Kaneshiro is in a position where no general interest is the standing opinion and Deputy Attorney Courson is concerned with that as he sees the conflict in the opinions even though he was the one who wrote Board of Ethics Open Session March 20, 2015 Page 11 SUBJECT DISCUSSION ACTION the opinions. Ms. Clark said she thought that saying real property tax was specific and does not think the Board's answer was in conflict in which we said he could deal with real property tax but what he is presenting now the answer is no. Deputy Attorney Courson said the way it is phrased question number 1 is general but the opinion went out for general matters — conflict of interest — is the way it is worded. Across the board all four inquiries were deemed a conflict. Ms. Tudela said essentially what the Board has decided is that all four points are conflicts and he must recuse himself to which Deputy Attorney Courson said yes. Around the question of broadness the Board has restricted Mr. Kaneshiro in his role as Councilmember based on the decision in those four particular areas. Deputy Attorney Courson said that would be a fair interpretation the way it was written. It could have been interpreted that the general matters there was intimately tied to the Community Plan so no on general matters as to the Community Plan. That may have been what the Board intended, but Ms. Tudela moved that the Board reconsider the based on the minutes and the way he wrote the opinion it seems a very decisions for 1, 2, 3, and 4 but noting the motion broad blanket ruling to which he did not think the Board wanted to give goes with a member who was present at the last blanket rulings a no, anymore than they want to give blanket rulings a yes. meeting and voted with the majority, Ms. Clark Ms. Tudela asked if the appropriate action is essentially to move to accept exercised that right by moving for reconsideration. reconsideration of the Board's decisions on items 1, 2, 3, and 4. Mr. de la Pena seconded the motion. Motion carried 6:1 (abstain — Murashige) Ms. Tabura asked what was said on the first opinion that is now conflicting with the second opinion. Deputy Attorney Courson said the first opinion which was very narrow said he could deal with real property tax; on the second opinion as to subpart 1 it was said areas of general interest there is Board of Ethics Open Session March 20, 2015 Page 12 SUBJECT DISCUSSION ACTION a conflict. The taxes is an area of general interest, but that was okay but now there is an area of conflict with general interest. Maybe a more fair reading would have said that the general interest only pertains to the Community Plan. Deputy Attorney Courson did not write it that way because he did not want to overstep, but if the intention was that generally the Community Plan was the conflict, fine; but there does appear to be a conflict — taxes yes, general stuff no and yet taxes are part of general stuff. Chair Perry suggested that number I is too broad and they are not going to render a blanket opinion on it one way or the other. Ms. Tudela said Mr. Kaneshiro is asking the Board if they will support his belief that sitting and voting on areas of general interest is within the ethical standards of this County — that is not a question that should come before this Board so we take it off the list. Deputy Attorney Courson said §20.05 D (2) says the Board is to render advisory opinions or interpretations with respect to application of the code on request and that is not an application of the code. Chair Perry asked what did the Board want to do with item 1 to which Ms. Tudela said they need to refuse to render an opinion based on support from legal counsel. The Board understands the question but it does not seem to be within the purview of the Board. The Attorney said he did not think it was not within the purview it is just so broad. Chair Perry said that is what he said — it is too broad and they are not going to render a decision one way or the other. Ms. Clark said in speaking to the 4 requests looking at number 4 that might be the answer if all the other items are too broad, but if he is dealing with anything directly related to the HMI /Grove Farm those are areas he should recuse himself. Mr. Nagano asked if it Ms. Tudela moved that item 1 is too broad in its were possible to amend the opinion to narrow it. Deputy Attorney verbiage and the Board will not render an Courson suggested the cleanest way is to issue a new Advisory Opinion. opinion either way. Mr. Murashige seconded the Ms. Clark noted the Board did vote to reconsider. Chair Perry said his motion. Motion carried 7:0 suggestion was to do motions for 1, 2, 3, and 4, but they jumped to item 4. Board of Ethics Open Session March 20, 2015 Page 13 SUBJECT DISCUSSION ACTION Ms. Tudela moved that on item 2 the Board affirm its original decision of a conflict of interest with the Liihu`e Community Plan. Ms. Ms. Tudela asked a clarifying question of Mr. Kaneshiro as to what Clark seconded the motion. Motion carried 7:0 percentage does Grove Farm own land as relates to the Lihu`e Community Plan. Mr. Kaneshiro confirmed it is a large land owner. Ms. Tudela had the same qualifying question of Mr. Kaneshiro for the South Kauai Community Plan to which Mr. Kaneshiro did not know what the percentage is but they do have land in the South Shore Plan. Mr. Kaneshiro said there is a lot of land and some land is not getting rezoned so it is difficult to answer the question, and he should have also said that Ms. Tudela moved that on item 3 the Board with the Lihu`e Plan. Grove Farm has a lot of land in both the Lihue and affirm its original decision of a conflict of the Koloa area but the actual area that the plan is going into, Grove Farm interest with the Lihu`e Community Plan. Ms. percentage is very small. As far as the whole plan it is hard to say because Clark seconded the motion. Motion carried 7:0 there may different zoning within the Lihu`e area and then the outskirts. Ms. Tudela moved that on item 4 the Board find there is a conflict of interest. Ms. Clark seconded the motion. Motion carried 7:0 Chair Perry questioned whether a motion is needed to cite the Code provisions relative to these 4 motions. Ms. Tudela said in her motion that they reaffirm the decisions made at the last meeting which identified those code references. Deputy Attorney Courson was asked if the Board needed to elaborate on items 1, 29 3, and 4 to which Deputy Attorney Courson said Ms. Tudela affirmed it so he will cite the same reasons except item 1 Board of Ethics Open Session March 20, 2015 Page 14 SUBJECT DISCUSSION ACTION which will say the Board refuses to opine on it. Ms. Clark asked if they needed to add a comment that the Board would rely on Mr. Kaneshiro's good judgment to know when to recuse himself or not. Deputy Attorney Courson said they could do that; he forms the basis of the opinions off the essence of the minutes. Executive Ms. Tabura moved to go into Executive Session Session at 2:31 p.m. Mr. de la Pena seconded the motion. Motion carried 7:0 Deputy Attorney Courson cited that the Board would go into Executive Session pursuant to the Hawaii Revised Statutes for Es -004 and ES -005 as fully described on the posted agenda. Return to Open Ratify Board of Ethics actions taken in Executive Session for items: The meeting resumed in Open Session at 2:57 p.m. Session ES -004 and ES -005 Mr. Nagano moved to ratify the actions taken in Executive Session. Mr. Murashige seconded the motion. Motion carried 7:0 Disclosures a. Shaylyn Kehaunani Kimura (Public Access /Open Ms. Tudela exited the meeting. 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 Stiplmeier (Charter Review Commission) Ms. Clark moved to accept Disclosures a through f f. Nadine Kuniko Nakamura (Managing Director) and deem them complete. Mr. Murashige seconded the motion. Motion carried 6:0 Announcements Next Meeting: Friday, April 17, 2015 — 1:00 p.m. Adjournment Chair Perry declared the meeting adjourned at 3:04 p.m. Board of Ethics Open Session March 20, 2015 Submitted by: Page 15 Barbara Davis, Staff Support Clerk Reviewed and Approved by: ( ) Approved as circulated.. (X) Approved with amendments. See minutes of 4/17/15 meeting. Warren Perry, Chair