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HomeMy WebLinkAbout2015_1113_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 12/18/15 Board /Committee: BOARD OF ETHICS Meeting Date November 13, 2015 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. End of Meeting: 2:09 p.m. Present Chair Warren Perry; Vice Chair Maureen Tabura (1:23 p.m.); Secretary Ryan de la Pena. Members: Addison Bulosan; Calvin Murashige; Brad Nagano; Mary Tudela Staff. Deputy County Attorney Matt Bracken; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Jay Furfaro. Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Perry called the meeting to order at 1:00 p.m. with 6 members present. Approval of Minutes Regular Open Session Minutes of October 16, 2015 Mr. de la Pena moved to approve the minutes as circulated. Mr. Murashige seconded the motion. Motion carried 6:0 Communications BOE 2015 -23 Memo dated 10/9/15 from Councilmember Hooser to Mr. Nagano moved to receive both communications. Mr. Murashige seconded the motion. Motion carried 6:0 Council Chair Rapozo regarding possible conflict of interest and recusal relating to Bill No 2600 (Beneficial Tax Rate for Property Used for Long Term Affordable Rental) BOE 2015 -24 Memo dated 10/19/15 from Councilmember Yukimura to Council Chair Rapozo regarding possible conflict of interest C 2015 -266 . relating to the license agreement for the three portables and a portion of the grounds immediately surrounding the portables located at the Kauai War Memorial Convention Hall Chair Perry asked for a motion to receive both communications. Request for Advisory RAO 15 -011 Request dated 10/9/15 from Councilmember Hooser as to whether there is a conflict to participate in Council proceedings and vote Board of Ethics Open Session November 13, 2015 Page 2 SUBJECT DISCUSSION ACTION Opinion on Bill 2600 relating to beneficial tax rate for property used for long term erm affordable rental as a homeowner who might benefit from this tax saving if the Bill is amended and passed Councilmember Hooser was not present at the meeting. Chair Perry asked for a motion either indicating there is a conflict of interest or there is no conflict. Mr. Murashige moved that the Board find there is a conflict. Mr. de la Pena seconded the motion. Mr. Murashige said based on what he set forth in his request outlining the history and everything else, it appears that it is something Mr. Hooser had at one point in time, and if there are changes he would want to consider if he would want to avail himself of that opportunity as well, and so there is a conflict. Chair Perry indicated his only question was if this is a County -wide law, applicable to all people in the County, then he would have a problem seeing a conflict. If it is a special law relative to Councilmember Hooser then there would be a definite conflict. Referring to the October 9 letter, If the Bill were amended and passed to extend the application date for owners to apply for the program........ Chair Perry felt it had County -wide effects. It also was noted that Councilmember Hooser had previously recused himself on this Bill. The Chair called for the vote. Motion indicating there is a conflict carried 5:1 (nay-Perry) RAO 15 -012 Request from Public Works as to whether there is a conflict for John Harder, Solid Waste Division, to oversee the conceptual design contract for the proposed materials recovery facility for outside employment on a temporary /part time basis John Harder, MRF Project Manager for Public Works /Solid Waste, and Allison Fraley, Coordinator for Public Works /Solid Waste were present. Board of Ethics Open Session November 13, 2015 Page 3 SUBJECT DISCUSSION ACTION Chair Perry called for a motion. Ms. Tudela moved that there was no conflict. Motion failed for lack of a second. Mr. Nagano moved that there is a conflict. Mr. Bulosan seconded the motion. The rationale for Mr. Nagano's motion is Mr. Harder works for the County's Solid Waste Division and he will be doing consulting work for companies looking to do their projects. Chair Perry called Mr. Harder forward. Mr. Harder stated he works part time for the Solid Waste Division on specific projects. Chair Perry verified that Mr. Harder is an employee of the County and asked in what capacity. Mr. Harder said his title is Materials Recovery Facility Project Manager, semi - retired and brought back a few years ago to fill some gaps with the Division and currently working on a single specific project under a limited term contract of 89 days, basically to facilitate the project moving forward. He works about 8 to 10 hours a week. Chair Perry noted there are some companies that would like to do work for the County and Mr. Harder would like to make himself available to consult with these other companies to which Mr. Harder said yes. Mr. Murashige said the type of consulting work Mr. Harder would be doing would be related to the Materials Recovery Facility. Mr. Harder said no, currently the Public Works /Solid Waste Division has a Request for Proposal out for a company to do a waste composition analysis; an analysis out at the landfill of the material coming into the landfill and determination of the different quantities and types of materials. They randomly select loads and sort those loads then put the data together so the Solid Waste Division has a better idea of exactly what types of materials, what volumes Board of Ethics Open Session November 13, 2015 SUBJECT DISCUSSION ACTION are going into the landfill. Mr. Harder said he has not approached anybody as of yet but the way he envisions this is he would be, because most of the companies who have been solicited are mainland companies, he would be the point person on Kauai overseeing some of the sorting, the data collection, scheduling the visits to the landfill to make sure they are not in conflict with their operations. It would not have anything to do directly related with the Materials Recovery Facility because that is a future facility that is in the conceptual design right now. Chair Perry said if Mr. Harder makes an arrangement with CalRecovery in Concord, California, and he does the coordinating at the landfill at that time he would have the CalRecovery hat on. Chair Perry asked if at any time during that period of time would he have his County contracted employee hat on. Mr. Harder said not at the same time, no. Currently Mr. Harder is in the office 2 or 3 days a week for 3 or 4 hours at a time working on coordinating this project that is currently underway. That project probably still has another 8 or 9 months to go; the issue right now is the environmental assessment is in progress so he is coordinating the different processes within that — the traffic study, the archaeological study trying to help their consultants as they come on island get access to the site, talk to the right people and get the answers they need. During that time, on his off days when he is not working for the County, he could be putting on someone else's hat and going to the landfill to work with laborers who would be doing the sorting making sure they have access and thing are safe. That would happen during the same larger period of time, but he would not be doing two things at once. He would either be working on the MRF project or the waste composition project separately. Ms. Tudela said with the contract he is working with the County he oversees the concept design for a proposed Materials Recovery Facility; that is a design project for a future event to which Mr. Harder said yes. Board of Ethics Open Session November 13, 2015 Page 5 SUBJECT DISCUSSION ACTION Ms. Tudela said he also consults, given his expertise for that particular design, and coordinates things for that project for the County to which Mr. Harder agreed. Asked when he represents anyone else on the list of potential other contractors, what is his role for them. She noted he previously said he would oversee sorting data so he would coordinate their activities as constructed under their contract with the County to which Mr. Harder said yes. Ms. Tudela said she was not concerned that he would be doing things at different times and that he will not work on the project for CalRecovery versus the County, but questioned the tasks and would there be an overlap between what he does for the County and what he would do for the consulting. Mr. Harder said he could not envision any overlap; essentially one facilitates the conceptual design process and other environmental assessment while the other would entail overseeing some manpower of separating, sorting, weighing trash at the landfill. The only overlap is they are both dealing with refuse. Allison Fraley said she supervises Mr. Harder and agreed with everything he said about the tasks that he would be performing would not be overlapping or conflicting. Mr. Nagano said with the scheduling Mr. Harder would be overseeing the sorting, etc., and asked if that would not be a County function. Ms. Fraley said they would hire a contractor for the waste characterization and they would perform the work; the County would not schedule it. Mr. Harder would be facilitating the scheduling. Mr. Murashige said he was bothered that the attachment said Mr. Harder had currently contacted the following firms who had indicted interest in the project and offered his services. Mr. Murashige sensed he had done so because of his role in the County and no one was interested in the project, and so bothers him because in essence he is saying he is a consultant for the County and works only 16 hours a week and they are going to need someone here and on the off -time when he is not working at the County he will be helping with their business. Mr. Murashige said it bothered him Board of Ethics Open Session November 13, 2015 1 • SUBJECT DISCUSSION ACTION because of the relationship that seems to have come out from his role with the County and his proposed role with the successful bidder. Mr. Harder said he could clarify that saying it was a bit premature when he filled out and submitted the form to Larry Dill, and prior to actually making the contacts, which was what he was planning on doing. At a meeting with Mr. Dill, he had concerns about that same issue that by prematurely contacting these groups it could bias the evaluation process somewhat, so Mr. Harder has not contacted anybody. He will wait until a contractor is selected and then contact them. Chair Perry said looking at the role of a contracted employee of the County of Kauai he is basically doing the requirements and then a contractor will be hired to fill the requirements, so could he tailor the bid specs, or whatever, such that he would be the person. Mr. Harder said there are two different issues. One is the waste composition study and the other is his current work with the County, which is the conceptual design of the Material Recovery Facility. On the Material Recovery Facility side the next step after completing the conceptual design and the environmental assessment would be for the County to go out to bid for design and construction. Theoretically there might be a way for him to favor himself or somebody on the bid specs, but definitely not himself as he is semi- retired and wants to completely retire. Mr. Harder said he is doing a lot of what he is doing because Solid Waste Division is short- staffed and he was asked to come back to help with some specific projects. Mr. Harder said he enjoys it, and he is working hard, but it is not a burden. The work he does for the County is entirely under the review of Ms. Fraley and Mr. Tanigawa and the Public Works Division, and they will also have oversight on that. Mr. Harder pointed out he is already doing that work under the County and there really is no relationship to the waste composition analysis because that is separate from the design and operation of a civil works project. Board of Ethics Open Session November 13, 2015 Page 7 SUBJECT DISCUSSION ACTION Mr. de la Pena asked if there was a potential for any of the contractors to be bidders on the project Mr. Harder is working on, or is it totally different types of work. Mr. Harder said he would not envision it; these contractors are all solid waste planning and consultant service providers. The contract Mr. Harder is working on will be a civil construction contract and equipment supply. He is not totally familiar with everyone on the list, but the ones he does know would not be involved in a construction contract. Mr. Murashige asked for more specifics on what Mr. Harder is doing now for the County, and what he proposes to do as a consultant for the successful bidder. Mr. Harder said some specifics from the last 3 or 4 weeks or even further, the consultant as part of the conceptual design subcontracted with a structural engineering firm in Honolulu. Mr. Harder met with the structural engineer, walked him through the site, worked with our office in getting copies of the old plans, drawings, walked him through the history of both the transfer station and the resource center which is the site we are talking about, helped him understand and get the background and details and information necessary for him to do structural work. More recently we had a traffic engineer from Honolulu who was to establish traffic counts and traffic patterns at the facility, so Mr. Harder met him at the site and walked him through the operations, did research internally and gave him the data that was necessary for him to do his work. Asked the location of the facility, Mr. Harder said it is the facility in front of the Lthu`e transfer station on Ahukini Road, the Kauai Resource Center that they are looking at converting and expanding into a more adequate processing facility. In that sense Mr. Harder has been coordinating between the division and the department and the consultant to make sure they get the proper information, the proper background, and can make the proper contacts. He has had no or little input on the design itself, it has just been coordinating all the operations because there are things that Board of Ethics Open Session November 13, 2015 1 SUBJECT DISCUSSION ACTION would be County responsibility in overseeing the consultant. Dealing with this other project some of the activities would be somewhat similar except these are activities that were being generally handled by a contractor. When a contractor is brought in to do a waste composition analysis they would be establishing a crew of local workforce, making contact with the landfill operators, scheduling visits, and Mr. Harder's job would be to oversee some of that and make sure the local workers are performing; that they are following the specifications of the consultant. Mr. Harder said just like he was representing the County on the material recovery project, he would be representing the contractor and trying to facilitate things. He would have little or no input as to how the project is carried out because that would be the consultant's responsibility. His job would just be to make sure they did collect the data and everything went smoothly. Ms. Tudela recapped that he now represents the County as a project manager for the planning of a study — Mr. Harder interjected "of a facility" — and he would be working that same kind of role but working for outside third parties in overseeing and making sure that their plan is being implemented and asked if that was fair. Mr. Harder commented that in this sense he is project manager for the County; in the other sense he wouldn't say he had project management responsibilities but it would be more like project coordination or on site supervisor. Mr. Murashige said once a contractor is selected would Mr. Harder's job with the County still be necessary. Mr. Harder said yes; his job with the County is a completely different project. This project is developing a data base for future planning and activities whether collection activities, processing activities, manpower activities, all of the different things that need to be done. A lot of what this waste composition study will relate to is the design and operation of the new landfill that is planned up in Ma`alo. Mr. Harder would be assisting in getting that information for future Board of Ethics Open Session November 13, 2015 .,_.. SUBJECT DISCUSSION ACTION decision making by the Department of Public Works, but it would be separate from the specific construction project that he is overseeing the design on. Chair Perry thanked Mr. Harder for educating the members and expressed his own appreciation. Mr. Nagano said Mr. Harder mentioned earlier that other contractors had come in and done the structural engineering and traffic and asked if he had to be a consultant to them to which Mr. Harder said no he is working with the primary consultant. The primary consultant just contacted Mr. Harder about an archaeological study; they have a number of specialists within this broader project and as part of the environmental assessment you need to do an assessment of the site. They arranged for the subcontractor to them to visit the site and asked Mr. Harder to be there under his County hat. Asked why his contract is not amended to include this under his County hat, Mr. Harder said the primary work he is doing now is under the Capital Improvements Project and using CIP moneys; there are no operations money for a separate job there. The work he is assisting on the waste composition study is more normally considered the job of the consultant, not the job of the County. Ms. Tabura apologized for coming in late and said the information he becomes aware of as the coordinator for the consultant could that influence him in his role as the project manager for the County. Mr. Harder said he could not see how as they are two separate operations, and in actuality the project he is working on now has gotten through the conceptual design and now is primarily an environmental assessment type of thing looking at a specific site and making sure they meet all the protocols and regulations. Ms. Tabura said all the consultants are not hired and are going to put proposals in to do the project. Ms. Fraley said the current status of the waste characterization study is they went out for professional services, received resumes and have an evaluation committee that is reviewing the Board of Ethics Open Session November 13, 2015 Page 10 SUBJECT DISCUSSION ACTION resumes. Ms. Tudela said the attachment to the Outside Employment Form says the proposed waste composition study for the County, which she is thinking it is the same thing, but it is not the same thing based on what Mr. Harder described, so she needs clarification on the hiring of the consultant which seems more of an operations task that would happen while the facility planning thing is going on; they are mutually exclusive and that is what is not clear based on the documentation. It is now clearer that one is a planning design project and the other is essentially an operations coordination of work that the County needs to be done and they need someone to coordinate the consultant that will be hired that they will select. Chair Perry stated that the motion on the floor is that there is a conflict for Mr. Harder to do the outside employment as he proposed. Roll Call Vote: Nay - Bulosan; nay -de la Pena; nay - Murashige; aye - Nagano; nay - Tabura; nay - Tudela; nay - Perry. Motion fails 1:6 Chair Perry called for a motion to indicate there is no conflict. Ms. Tudela so moved. Ms. Tabura seconded the motion. Motion carried: 6:1 (na -Na ano) Business BOE 2015 -22 Memo dated 8/27/15 from the Charter Review Commission seeking input on Article XX for the Kauai County Charter (On-going Chair Perry noted that Attorney Courson had proposed a change to Section 20.02 (Use his official position to secure a special benefit, privilege or exemption for himself or others, or to impose an undue detriment on another.) but questioned what is meant by "undue ". Chair Perry called for a motion to submit the proposed change to the Charter Commission. Mr. de la Pena so moved. Mr. Murashige Board of Ethics Open Session November 13, 2015 Page 11 SUBJECT DISCUSSION ACTION seconded the motion. Mr. Nagano noted the Section says "to secure a special benefit, privilege or exemption for himself or others" and suggested changing to a gender neutral word. Staff advised that the Charter Commission is working on a measure to correct gender and non - substantive changes to the Charter, which has to go before the voters before any changes can be made. Motion carried 7:0 Disclosures a. Wallace Rezentes, Jr. (Board of Water) b. Roy Ho (Planning Commission) C. Gregory Gimenez (Deputy Prosecuting Attorney) d. Anne Kristin Clarkin (Deputy Prosecuting Attorney] Ms. Tabura moved to receive Disclosures a. through d. and deem them complete. Mr. de la Pena seconded the motion. Motion carried 7:0 Executive Attorney Bracken cited that the Board would go Session into Executive Session pursuant to the Hawaii Revised Statutes for ES -020 and ES -021 as fully described on the posted agenda. Ms. Tudela moved to go into Executive Session at 1:50 p.m. Ms. Tabura seconded the motion. Motion carried 7:0 Return to Open The meeting resumed in Open Session at 2:08 p.m. Session Ratify Board of Ethics actions taken in Executive Session for items: ES- 020 and ES -021 Mr. de la Pena moved to ratify the Board's actions. Mr. Nagano seconded the motion. Motion carried 7:0 Announcements Next Meeting: Friday, December 18, 2015 — 1:00 p.m. Adjournment Chair Perry adjourned the meeting at 2:09 p.m. Board of Ethics Open Session November 13, 2015 Submitted by: Page 12 Barbara Davis, Staff Support Clerk O Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Warren C.R. Perry, Chair