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HomeMy WebLinkAbout2016_0617_AgendaPacketRyan de la Pena Chair Mary Tudela Vice -Chair Maureen Tabura Secretary COUNTY OF KAUAI BOARD OF ETHICS NOTICE OF MEETING AND AGENDA Friday, June 17, 2016 1:00 p.m. or shortly thereafter Mo`ikeha Building, Liquor Conference Room 3 4444 Rice Street. Lihu'e, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of April 15, 2016 Members: Michael Curtis Calvin Murashige Brad Nagano REQUEST FOR AN ADVISORY OPINION RAO 16 -004 Letter dated 6'1 '16 from Kanani Fu, Housing Director, requesting an Advisory Opinion on whether there is a conflict with her position and being a participant in the Homebuyer Loan program administered by the DISCLOSURES Housing Agency 1. Jo Ann Shimamoto (Salary Commission) 2. Russell M. Wong (Charter Commission) 3. Juno -Ann A. Apalla (Candidate for County Council) 4. Gary A. Pacheco (Liquor Control Commission) 5. Chad K. Pacheco (Fire Commission) 6. Michael T. Martinez (Fire Commission) 7. Richard S. Fukushima (Candidate for County Council) 8. Ross K. Kagawa (Candidate for County Council) 9. Melvin F. Rapozo (Candidate for County Council) 10. Arthur J. Brun (Candidate for County Council) 11. Wallace G. Rezentes (Managing Director) 12. Arryl J. Kaneshiro (Candidate for County Council) 13. Gary L. Hooser (Candidate for County Council) 14. Mason K. Chock (Candidate for County Council) 15. Ashley S. Uyeno -Lee (Deputy Prosecuting Attorney) 16. JoAnn A. Yukimura (Candidate for County Council) An Equal Opportunity Employer ANNOUNCEMENTS Next Meeting: Friday, July 15, 2016 — 1:00 p.m., Mo`ikeha Building, Liquor Conference Room 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 to: Board of Ethics Attn: Barbara Davis Office of Boards & Commissions 4444 Rice Street, Suite 150 Uhu`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. Board of Ethics — June 17, 2016 COUNTY OF KAUAI Minutes of Meeting OPEN SESSION IMIT1'�UR, a* pro�u,Efi Board /Committee: I BOARD OF ETHICS Meeting Date I April 15, 2016 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:01 p.m. End of Meeting: 1:30 p.m. Present Chair Ryan de la Pena; Vice Chair Mary Tudela. Members: Michael Curtis; Calvin Murashige; Brad Nagano (1:04 p.m.); Staff. Deputy County Attorney Nicholas Courson; Boards & Commissions Office: Support Clerk Barbara Davis; Administrator Jay Furfaro. Councilmember Mason Chock (1:10 p.m.) Excused Secretary Maureen Tabura Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, County Clerk Jade Tanigawa gave the Oath of Office to new Board Member Michael Curtis. Call To Order Chair de la Pena called the meeting to order at 1:01 p.m. with 4 members present. Approval of Regular Open Session Minutes of March 18, 2016 Mr. Murashige moved to approve the minutes as Minutes circulated. Ms. Tudela seconded the motion. Vote on the motion postponed pending arrival of Mr. Nagano to establish a quorum of members who were in attendance at the March meeting. Communications BOE 2016 -02 Possible Conflict of Interest and Recusal dated 3/10/16 from KipuKai Kualii related to Resolution No. 2016 -30, Kauai County 2016 Action Plan (Community Development Block Grant) Mr. Murashige moved to receive the communication. Ms. Tudela seconded the motion. Motion carried 4:0 O BOE 2016 -03 Possible Conflict of Interest dated 3/16/16 from KipuKai Kualii relating to Bill No. 2625, the Mayor's Proposed Operating Budget ' V * S Ms. Tudela moved to receive the communication. Mr. Murashige seconded the motion. Motion carried 4:0 for Fiscal Year 2016 -07 — Appropriations for the YWCA u� � Board of Ethics Open Session April 15, 2016 Page 2 SUBJECT DISCUSSION ACTION BOE 2016 -04 Possible Conflict of Interest dated 3/16/16 from Arryl Mr. Curtis moved to receive the communication. Mr. Murashige seconded the motion. Motion carried 4:0 Kaneshiro relating to Bill No. 2625, the Mayor's Proposed Operating Budget for Fiscal Year 2016 -2017, Appropriations for Grove Farm Company, Inc. in the Fiscal Year 2016 -2017 Mayor's operating Budget Submittal BOE 2016 -05 Possible Conflict of Interest dated 3/16/16 from Arryl Kaneshiro relating to Bill No. 2625, the Mayor's Proposed Operating Mr. Murashige moved to receive the communication. Mr. Curtis seconded the motion. Motion carried 4:0 Budget for Fiscal Year 2016 -2017 and the Appropriations for the East Kauai Soil & Water Conservation District BOE 2016 -06 Possible Conflict of Interest dated 3/16/16 from Mason Ms. Tudela moved to receive the communication. Mr. Curtis seconded the motion. Motion carried 4:0 Chock relating to Bill No. 2625, the Manor's Proposed Operating Budget for FY 2016 -2017, Appropriations for Leadership Kauai BOE 2016 -07 Possible Conflict of Interest dated 3/17/16 from JoAnn Mr. Curtis moved to receive the communication. Mr. Murashige seconded the motion. Motion carried 4:0 Yukimura relating to Bill No. 2625, Mayor's Proposed Operating Budget for Fiscal Year 2016 -2017 and Appropriation for the Boys and Girls Club BOE 2016 -08 Possible Conflict of Interest dated 3/17/16 from Arryl Mr. Murashige moved to receive the communication. Mr. Curtis seconded the motion. Motion carried 4:0 Kaneshiro relating to Bill No. 2625, the Mayor's Proposed Operating Budget for Fiscal Year 2016 -2017 and the Appropriations for the Kauai Economic Development Board (KEDB) Food &Agriculture Program Mr. Nagano entered the meeting at 1:04 p.m. Board of Ethics Open Session April 15, 2016 Page 3 SUBJECT DISCUSSION ACTION With a motion and second pending on the floor to approve the minutes of March 18, the Motion carried 4:1 (abstain- Curtis) Request for an RAO 16 -003 Request from Mason K. Chock, Councilmember, as to Advisory whether there is a conflict for him as president of Kupu`ae, dba Kauai Opinion Team Challenge, to provide leadership training to managers and supervisors for the County of Kaua`i's Department of Human Resources under the County's Procurement Process While awaiting Mr. Chock's arrival Attorney Courson said staff from the County Council's Office did check with the Attorney's Office and the head of Purchasing (of which a copy of Ernie Barreira's email is included in the backup) and Councilmember Chock was advised by the Attorney's Office that under the procurement code it appears it was competitive bidding. It was not an RFP because the amount was so small, but they did call 3 people and get 3 bids. Attorney Courson said how they went about calling he was not sure. That style of procurement when the amount is low you can just call 3 people, get the bids, and go with the lowest one. Chair de la Pena said it looked like the bids were in writing and addressed to each of the vendors. Attorney Courson thought the question that comes up of whether that is or is not competitive is who determines which 3. Mr. Murashige said that is a question he had. Attorney Courson said the Code of Ethics could be different than the Procurement Code, but read that way it would be a disadvantage to County workers who do side things because it was competitive in so far as the Procurement Code doesn't ask for anything more. If HR (Human Resources) procured this and used this method and we read the Ethics Code to require competitive in that it is open to everyone then someone who otherwise works for the County is precluded even though it was a perfectly valid method for HR. Our read on Board of Ethics Open Session April 15, 2016 Page 4 SUBJECT DISCUSSION ACTION it is given that it is competitive in the context in which it was procured that was sufficient. Mr. Murashige then asked why it was before the Board of Ethics. Attorney Courson thought it was out of a surplus of caution from Councilmember Chock. Attorney Courson said as far as the Code of Ethics, the Board of Ethics is the final word. Attorneys are willing to say what we think, but we do not have the power to bind. You can see from Ernie's point of view that it is competitive in this context and in talking with my colleagues we also thought it was competitive. Ms. Tudela said as she reads the request it is regarding whether his participation in Council's deliberation and decision- making on the budget as it relates to HR....... Councilmember Chock entered the meeting and apologized for being late as he was working with students at Waimea High School. Councilmember Chock said he thought it was pretty common knowledge that his interest in helping our County to get healthy and efficient is one of his priorities. He said he is a leadership development consultant, coach, and facilitator and has been for many years. HR has been looking at different ways to increase their training capacity and have enlisted different vendors. They recently inquired about a specific program that he delivers and his company did submit an application proposal and was selected. There were concerns from the get -go because of my role at the County on whether or not there would be some issues, so we vetted it with our procurement officers and they may have sent something over in writing to support the process that we looked through to ensure that everything was legal and done appropriately. Mr. Chock wanted to take it a step further on his end with Council Services and ask for an opinion on what he can do to make sure there is full disclosure and therefore the request to submit a request for an advisory opinion from this body. The training is scheduled Board of Ethics Open Session April 15, 2016 Page 5 SUBJECT DISCUSSION ACTION for later this month and in May. Mr. Murashige said he was not questioning the procurement process, but if it were important to avoid the appearance of any conflict with the budgeting process he may want to consider recusing himself so that no one can say he is voting on something from which his company is benefiting. Mr. Murashige said he realized the procurement process has already taken place and seems to be above board so why would he need the blessing of Ethics to say he can or should be able to participate in the budget vote. Mr. Chock said he realizes they are talking about the existing budgetary year and those funds have been procured as well. Whether or not looking forward for future continued training might be something in question. His perspective was more or less to ensure that anybody or commission that was responsible for oversight of ethics decisions should be made aware of his interest. Mr. Chock said he personally did not see a direct conflict to the budgetary process, but perhaps there is a conflict looking forward to next year's budget and the budget before them right now if training is being discussed or in making a decision on the current training budget for HR. That could be something viewed as a need for him to recuse himself from. Mr. Murashige expanded his question saying working on a budget for the future there are a certain amount of unknowns. It is unknown whether there will be a RFP that his company would be interested in participating in, but the budget itself in general Mr. Murashige would think just to avoid the appearance he may want to consider not participating in a specific matter that involves teen challenge. Mr. Chock said absolutely and he would concur. The budget comes to Council in different ways and typically when there is a decision to be made, in this case training, then I would probably err on the side of safety and recuse myself but would like Board of Ethics Open Session April 15, 2016 Page 6 SUBJECT DISCUSSION ACTION to get feedback from this Board as well. Ms. Tudela noted she was confused as to the process. She said Mr. Chock was involved as a councilmember approving expenditures for this year that may have included training expenses, but were not specific to this particular request to which Mr. Chock said that was correct. Ms. Tudela continued saying after the fact his company became the selected vender for this particular expenditure to which Mr. Chock again said that was correct. Currently he has not knowingly voted to support his own involvement with supplying services to the County with the response again being correct. Ms. Tudela said, like Mr. Murashige, she was a little confused as well because in this particular case there seems to be no action that the Board is being asked to decide on. Mr. Chock said to clarify, the request for an opinion is on the future but because he now is a current vendor regardless of whether or not he gets future bids is the question. Further his interest was in full transparency and disclosure and while he is not required to do so he wanted it out there as public record. Councilmember Chock exited the meeting. Ms. Tudela moved that the Board find there is no conflict. Mr. Curtis seconded the motion. Ms. Tudela said she also did not think the question should have come to the Board. Mr. Murashige agreed and said it is an effort in trying to ensure that it wasn't rigged, but if it is an open procurement, competitive bidding that is not a problem. The fact that he acted on the budget last year without knowing what would be open for bidding is nothing else but a coincidence. Mr. Nagano said common sense he should recuse himself if he thinks they will be involved in it. Mr. Curtis said the ones they just passed - disclose they have a conflict of interest in the current budget process including Leadership Kauai that we have received already and effectively giving Board of Ethics Open Session April 15, 2016 Page 7 SUBJECT DISCUSSION ACTION them our blessing that it is okay to participate in the budget process having disclosed that conflict of interest. (Over - talking) Mr. Curtis clarified that they can participate in the budget process having disclosed their conflict on specific line items, so Mr. Chock is doing this retroactively/proactively. Ms. Tudela said she has not heard anything to change her opinion; it does not belong before us — he participated appropriately last year approving budgets with this unknown and the facts in this case will speak for themselves on whether it was competitive or not. We don't know what is going to come next. Attorney Courson explained that the officers and employees of the County often anticipate your confusion like why are we being asked, but they would rather you be confused than having you say why didn't you come ask us. The Attorneys used to be more willing to say yes or no, but now we say the Board of Ethics is the final say. Motion to find there is no conflict carried 5:0 Disclosures 1. Catherine A. Adams (Police Commission) 2. William Floyd Gibson (Liquor Control Commission) 3. Matthew Aaron Bernabe (Candidate for County Council) 4. Michael Gerald Perel (Charter Review Commission) 5. Norma Doctor Sparks (Candidate for County Council) 6. Heather Kanoe Ahuna (Planning Commission) 7. Lawrence John Dill (Board of Water Supply) 8. Kanani B. Fu (Housing Director) Mr. Curtis moved to accept Disclosures 1 through 8 and deem them complete. Ms. Tudela seconded the motion. Motion carried 5:0 Announcements Next Meeting: Friday, May 20, 2016 —1:00 pm Ms. Tudela noted she would be off island for the May meeting. Mr. Furfaro reminded everyone of the board and commission volunteers event scheduled for Board of Ethics Open Session April 15, 2016 Page 8 SUBJECT DISCUSSION ACTION Tuesday, April 19. Adjournment L Chair de la Pena adjourned the meeting at 1:30 p.m. - - -- Submitted by: Barbara Davis, Staff Support Clerk () Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Ryan de la Pena, Chair June 1, 2016 Kanani Fu 4972 Laukona Street Lihue, HI 96766 County of Kauai Board of Ethics C/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Lihue, HI 96766 Dear Members, i Since 2012, my spouse and I were participants in the Homebuyer Loan program administered by the Housing Agency. In 2014, my spouse and I were approved for a home loan to purchase our primary residence. The terms of our loans is consistent with the Administrative Rules established for the Homebuyer Loan Program. In March 2016, 1 became the Housing Director of the Housing Agency. In my capacity as the Housing Director, I oversee and approve administrative facets pertaining to the Housing Agency and its programs. The Homebuyer Specialist directly oversees the Homebuyer Loan Program, however, I oversee all of the Housing Agency's staff. I am requesting an advisory opinion on whether I have a conflict of interest under the Code of Ethics in holding the position as the Housing Director for the Kauai County Housing Agency and having my home loan for my primary residence being administered by Kauai County Housing Agency. Thank you for your consideration. Sincerely, ,I)e4, �- Kanani Fu P,,AD /6 - 6 6 �,