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HomeMy WebLinkAbout2018_0921_BOE OP Minutes LA (APPROVED)COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Auuroved as circulated on 10/19/18 Board/Commission: BOARD OF ETHICS Meeting Date September 21, 2018 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. End of Meeting: 3:15 p.m. Present Chair Michael Curtis. Secretary Mia Shiraishi. Members: Susan Burriss, Mary Tudela, Dean Toyofuku, and Ryan de la Pena. Also: Deputy County Attorney Mark Bradbury. Boards & Commissions Office Staff. Administrator Nicholas R. Courson and Support Clerk Darcie Agaran. Excused Vice Chair Maureen Tabura. Absent SUBJECT DISCUSSION ACTION Call To Order Chair Curtis called the meeting to order at 1:00 p.m. with six members present which constituted a quorum. Request for an RAO 18-003 Request for an Advisory Opinion dated August 28, 2018, from Arr I Kaneshiro relating to a possible conflict of interest relating to Bill No. 2719 Advisory Opinion With no objections, Chair Curtis took the agenda out of order to accommodate Councilmember Arryl Kaneshiro. Councilmember Kaneshiro stated that his request for an advisory opinion was a precautionary measure. He recalled a previous time when he requested an advisory opinion as a precautionary measure that helped because he was asked at Council if he went to the Board of Ethics and if he should be sitting in on the item, and he was able to say yes, the Board said he could sit in on the item, and the Council meeting resumed without interruption. Councilmember Kaneshiro noted that in this particular case, it is a Planning Committee item and he is not on the Planning Committee; however, he would be able to vote on it when it goes before the full Council. He stated that the item deals with Agricultural land and Important Agricultural Lands (IAL), but he didn't think he had a conflict because it is an island -wide policy that splits out Ag land and really de si nates IAL as Ag land and any other Ag land as Ag land. Councilmember Board of Ethics Open Session September 21, 2018 Page 2 SUBJECT DISCUSSION ACTION Kaneshiro reiterated that he would not get to vote on it at the Committee level, but he would get to vote at full Council. He added that the public hearing was coming up in the next week, so he wanted to get ahead of it. He wants to be able to sit through the whole process and not have to recuse himself. Chair Curtis asked Councilmember Kaneshiro to explain how IAL affects Grove Farm. Councilmember Kaneshiro stated that they already have lands that are designated as IAL, which was a State initiative. He noted that Grove Farm has regular Ag land as well. It was his understanding that Planning was attempting to tighten up some of the restrictions on IAL and be more flexible with things you can do on Ag land, such as having fruit stands on Ag land that the fruit is being grown on. Councilmember Kaneshiro restated that it was an island -wide policy that is not specific to Grove Farm. He added that Grove Farm was not the only landowner with IAL. He believed that Gay & Robinson, Alexander & Baldwin, as well as Kamehameha Schools had IAL. Ms. Tudela noted that Councilmember Kaneshiro's request stated that Grove Farm was not the subject of the proposed amendment, and asked if she heard correctly that the decision would not impact Grove Farm. Councilmember Kaneshiro replied that it would impact IAL and Ag land. Ms. Tudela followed up by saying that Grove Farm had IAL, and Councilmember Kaneshiro confirmed that that was correct, adding that it was similar to any councilmember sitting in on a tax increase for residential, or even Ag land, as it does not target a specific company; taxes are island -wide. Out of all the lands designated as IAL on Kauai, Ms. Shiraishi asked Councilmember Kaneshiro to provide an estimated percentage of those lands owned by Grove Farm. He said it was difficult, but he thought that they had over 10,000 acres of designated IAL. Councilmember Kaneshiro stated that they are a big landowner and added that Grove Farm voluntarily designated their land as IAL. Chair Curtis asked if Grove Farm stands to significantly benefit from this action to Board of Ethics Open Session September 21, 2018 Page 3 SUBJECT DISCUSSION ACTION which Councilmember Kaneshiro replied that he didn't think so. Councilmember Kaneshiro stated that the bill would restrict density on IAL, and with regard to Ag lands, the bill would make it easier for farmers to farm and sell their goods. He noted that Grove Farm doesn't farm; they lease their land to farmers, so the bill would actually benefit the farmers. With no further questions, Chair Curtis called for a motion. Ms. Burriss moved that the Board finds no conflict. Mr. de la Pena seconded the motion. Motion carried 6:0. Chair Curtis invited testimony from the public. Mr. Ken Taylor noted that he would have liked to comment before the Board voted. He stated that it's very seldom that anyone would be in front of the Board with a true conflict of interest, adding that most people that come before the Board come with perceived conflicts. Mr. Taylor said that the problem was that Councilmember Kaneshiro is in management for one of the largest Ag landholders on the island, and questioned whether Councilmember Kaneshiro receives a bonus at the end of the year. Mr. Taylor added that it wasn't wrong that Councilmember Kaneshiro had a perceived conflict, but it was the nature of the situation with his employment and being on the County Council and dealing with certain issues. Mr. Taylor stated that he thinks it is imperative that the Board understands the difference between conflicts of interest and perceived conflicts of interest, which he believed was the case here. He noted that it had to be dealt with and not ignored. Mr. Taylor pointed out that Councilmember Kaneshiro was part of the decision -making process at the County, as well as Grove Farm, and involved in making rules and regulations that would apply to Grove Farm. Mr. Taylor stated that because of the fact that there is a perceived conflict, the Board has to ask Councilmember Kaneshiro to step away from the issue. Chair Curtis asked if there were any questions for Mr. Taylor or if any of the members Board of Ethics Open Session September 21, 2018 Page 4 SUBJECT DISCUSSION ACTION wanted to reconsider the decision that was previously made to which there were none. Approval of Open Session Minutes of August 31, 2018 Minutes Hearing no corrections to the minutes, Chair Curtis entertained a motion to accept the minutes as circulated. Ms. Tudela moved to accept the Open Session minutes of August 31, 2018, as circulated. Ms. Burriss seconded the motion. Motion carried 6:0. With no objections, Chair Curtis moved on to the Disclosures. Disclosures 1. Ana -Lucia d.1.C.M. Des Marais — Candidate for Mayor 2. Lyle M. Tabata — Acting County Engineer 3. Susan H. Burriss — Board of Ethics Ms. Tudela stated that the Board was reviewing a disclosure statement that they previously reviewed and had a question on. She added that the individual submitted a letter explaining why there were no changes to the original disclosure statement. Ms. Tudela noted that the original disclosure statement was notarized, but the clarification letter was not. She wanted to ensure that the Board wasn't missing a legal step and asked if the clarification letter needed to be notarized. Ms. Tudela presumed that it was fine, but she wanted to verify. Deputy County Attorney Mark Bradbury stated that it should be fine. Chair Curtis entertained a motion to receive and approve Disclosures 1 and 3. Ms. Tudela moved to receive and approve Disclosures 1 and 3. Mr. de la Pena seconded the motion. Motion carried 6:0. Ms. Tudela stated that Ms. Burriss should have abstained from voting on Disclosure 3 as that was her own disclosure statement. Board of Ethics Open Session September 21, 2018 Page 5 SUBJECT DISCUSSION ACTION Chair Curtis noted for the record that Disclosures 1 and 3 were approved with Ms. Burriss abstaining from the vote on Disclosure 3. Chair Curtis stated that it was his understanding that Ms. Jade Fountain-Tanigawa requested to comment on Disclosure 2 regarding Lyle Tabata, and called Ms. Fountain- Tanigawa to the table. Ms. Fountain-Tanigawa thanked Chair Curtis for the opportunity to submit testimony regarding Mr. Tabata's disclosure statement and his apparent late filing. She explained that Mr. Tabata was sworn in as the Deputy County Engineer in 2010 and filed his first disclosure statement on January 18, 2011. He was later reappointed in 2014 and filed a disclosure statement on December 19th, so he had filed two disclosure statements up until that point. Ms. Fountain-Tanigawa further explained that on February 19, 2016, upon the departure of Larry Dill, the former County Engineer, Mr. Tabata was named Acting County Engineer, which is his current position. She added that as the Acting County Engineer, Mr. Tabata assumes full responsibility for the Department of Public Works. She noted that Mr. Tabata, as the Acting County Engineer, did not file a new or amended disclosure statement until the one that appeared on the current meeting's agenda. Ms. Fountain-Tanigawa pointed out that Kauai County Code, Section 3-1.9 Requirements of Disclosure, is very clear that any changes — including changes to Mr. Tabata's employment, job title, and responsibilities from Deputy County Engineer to Acting County Engineer — would require the submittal of a new or, at the very least, an amended disclosure statement. She noted that failing to submit a new disclosure statement was a direct violation of the Code of Ethics and, therefore, the law. Ms. Fountain-Tanigawa referred to Section 3-1.9(g), which states, "Any violation of any of the provisions of this Section shall constitute cause for fine, suspension or removal from office or employment." She stated that in her discussion with the State Ethics Commission, staff confirmed that anyone who files a late disclosure statement on behalf of the State is fined, noting that everyone is subjected to the same treatment and same Board of Ethics Open Session September 21, 2018 Page 6 SUBJECT DISCUSSION ACTION fines, and that no one is treated any different. Ms. Fountain-Tanigawa added that staff further stated that once they began to actively levy fines, everyone began to comply, and that was the most efficient method that they came across for compliance. She noted that excuses are not entertained as they feel that those were highly -paid individuals who are very capable of filing disclosure statements on time. Ms. Fountain-Tanigawa proposed that the Board, at the very least, fine Mr. Tabata for submitting a very late disclosure statement as he clearly violated the Code of Ethics. She stated that department heads in the County of Kauai and throughout the State set the high moral standards that the County expects their employees to follow. Upon speaking with staff from Maui County and Hawaii Island, Maui County confirmed that they have also fined department heads and employees for submitting late disclosure statements; she couldn't confirm with Hawaii Island as they were in an Ethics Commission meeting. As the County Clerk, Ms. Fountain-Tanigawa noted that she often administers oaths and as part of the oath, you swear to uphold the laws of the land, essentially — the State Constitution, the Charter of the County of Kauai, and the Kauai County Code. She felt that if the Board wanted to see compliance, a fine would probably be the most effective way. Ms. Fountain-Tanigawa stated that the State fines their employees $75 plus $10 for every day that it's late. She provided some examples of fines, which included the Executive Director of DCCA having to pay an $820 fine, the Superintendent for the Department of Education having to pay a $1,500 fine, and the Chairperson of the Board of Ag having to pay a $130 fine. Ms. Fountain-Tanigawa stated that she believed the Board had the ability to levy fines, and she hoped that they would take it under advisement and choose that route. Chair Curtis thanked Ms. Fountain-Tanigawa for her testimony and asked the Board if they had any questions. Board of Ethics Open Session September 21, 2018 Page 7 SUBJECT DISCUSSION ACTION Ms. Tudela stated that Ms. Fountain-Tanigawa mentioned a few dates in her testimony; January 18, 2011, and a December 19th date, but a year was not provided. Ms. Fountain- Tanigawa restated the dates she mentioned, which were January 18, 2011 (Mr. Tabata's 1st disclosure statement), December 19, 2014 (Mr. Tabata's 2nd disclosure statement), and September 4, 2018 (Mr. Tabata's current disclosure statement). Ms. Tudela asked if the County of Kauai currently has a fine schedule. Chair Curtis requested for that information to be documented to the Board and placed on the next meeting's agenda. Ms. Burriss also requested documentation that included the history of fines in the last five or six years. Chair Curtis stated that that would be part of their investigation and asked Ms. Fountain-Tanigawa, as well as the Office of Boards and Commissions, to provide a record of past fines for the next meeting. Chair Curtis asked if there was any further public testimony or if Mr. Tabata had anything to offer the Board regarding his disclosure statement. Hearing none, Chair Curtis entertained a motion to accept Mr. Tabata's disclosure statement. Mr. de la Pena moved to accept Disclosure 2. Ms. Burriss seconded the motion. Motion carried 6:0. Business BOE 2018-12 Discussion and possible decision -making on distributing reminders to update disclosure statements pursuant to Section 20.04 of the Charter of the County of Kauai In light of the Board's investigation at the next meeting, Administrator Courson suggested to defer this item as there might be some very pertinent information to share with all of the department heads. Chair Curtis asked if it was due to the recently received information to which Administrator Courson replied yes. Board of Ethics Open Session September 21, 2018 Page 8 SUBJECT DISCUSSION ACTION Administrator Courson stated that November will be the end of his time with Boards and Commissions and a new administrator may or may not know a lot of things, but if the Board was prepped and ready to send out a reminder to not only the current department heads, but to all of the new political appointees in December, he thought that would be great. Chair Curtis stated that it was a good idea. Ms. Tudela asked if a motion to defer was needed to which Mr. Bradbury replied that it wouldn't hurt. Administrator Courson stated that it was best practice. Ms. Tudela moved to defer BOE 2018-12 to the next meeting. Ms. Burriss seconded the motion. Motion carried 6:0. BOE 2018-13 Discussion and possible amendment or revocation of a prior advisory opinion, RAO 13-006 Chair Curtis asked Administrator Courson or the Board's counsel to share the complexity of the advisory opinion and its applicability to the Board. Mr. Bradbury asked if the Board was considering the revocation of the advisory opinion to which Chair Curtis replied that the Board was readdressing it. Mr. Bradbury stated that the Board could ask him any questions regarding the item. Ms. Tudela noted that she didn't have any questions for counsel, but recalled that the reason the item was on the agenda was because there was a question on whether or not the advisory opinion should be amended due to a shift in the subject's role and responsibility, and suggested to start with a discussion or dialog with Mr. Tabata regarding that. Board of Ethics Open Session September 21, 2018 Page 9 SUBJECT DISCUSSION ACTION Chair Curtis read Advisory Opinion RAO 13-006. Ms. Tudela stated that the reason it came up was because, in a prior case that the Board heard, the County awarded work to that particular firm. Chair Curtis asked if the Board wanted to reconsider and readdress the advisory opinion. Ms. Shiraishi stated that it was her understanding that there may have been a question about whether the opinion of no conflict was based upon Mr. Tabata not contracting with the County, so her direction would be to follow up on that and perhaps have a discussion about the meaning of the opinion. She asked if it meant that there was a blanket "no conflict" even if Mr. Tabata contracts with the County. She also questioned how the sentence regarding the private employment and not contracting with the County affects the Board's decision. Chair Curtis read the "Background" section of the advisory opinion and stated that there has been a case where the "Background" was violated, which causes the Board to reconsider and readdress the advisory opinion. Ms. Burriss stated that the Board received some testimony regarding when the RME License comes into play and believed that they heard testimony that the particular contract in question did not require that license. She added that there were discussions about whether or not the prohibition on County contracts would be applicable if the RME was not vital to the contract. Ms. Burriss stated that she thought that was why the discussion to either clarify or amend the previous advisory opinion came up because they did, in fact, find no conflict. Ms. Tudela added that the Board did not find that the advisory opinion was violated. She noted that Chair Curtis said that they had a case that violated the advisory opinion and wanted to clarify that the Board did not decide that. She suggested that it would be Board of Ethics Open Session September 21, 2018 Page 10 SUBJECT DISCUSSION ACTION helpful to review the minutes. Administrator Courson cautioned the Board that there was a lot of discussion about some points that were in Executive Session and noted that it had to be completely separated out. Mr. Toyofuku stated that he had the same thought process as Ms. Shiraishi. It was his understanding that the advisory opinion was binding to the current Board. He questioned the importance of the "Background" information in the advisory opinion. Mr. Toyofuku asked if it provided the basis or review of the information that the opinion was based on. He noted that it could be generalized either way. He stated that the statement, "...to act as RME for his General Contracting firm that his firm will not be contracting with the County," doesn't specifically state for licensed jobs only or jobs that require a contractor's license, so it could be easily argued that it wasn't specific enough. Mr. Toyofuku added that if it's read for what the words are worth, then the situation has changed and the firm has had a contract with the County. He asked counsel how important the "Background" information was in the advisory opinion, noting that he has never experienced writing an advisory opinion during his time on the Board. Mr. Toyofuku said that if the opinion is based on the "Background," then the situation has changed and he felt it was the Board's responsibility to revisit it. He added that he would like to either find documentation or have something that says exactly what an RME stands for and their responsibilities. Chair Curtis pointed out the confidentiality of Mr. Tabata's employment and entertained a motion to go into Executive Session to openly continue the discussion. Mr. de la Pena asked if it needed to be on the agenda to which Administrator Courson replied that an Executive Session for the specific item was not on the agenda; however, there was a catch-all Executive Session item. Board of Ethics Open Session September 21, 2018 Page 11 SUBJECT DISCUSSION ACTION Administrator Courson read the Notice of Executive Session, which states, "Pursuant to Hawai `i Revised Statutes §92-7(a), the Board 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)." He explained that the privacy of an employee is one of the items listed in HRS §92-5(a), but it didn't mean that anything to do with an employee is secret. Administrator Courson suggested to start by going into Executive Session with the understanding that that was one purpose, but the more primary purpose might be to seek legal guidance. He noted that Mr. Bradbury could help define what privacy really means, what has to be protected as privacy in Executive Session and what doesn't, and what should really be in Open Session. Noting that he didn't think the Board could fully discuss the item without going into Executive Session, Chair Curtis asked what the Board's pleasure was. Ms. Tudela moved to go into Executive Session for the purposes as stated by Administrator Courson. Ms. Burriss seconded the motion. Discussion: Chair Curtis stated that the Board is inviting Mr. Tabata into their Executive Session. Chair Curtis asked if there was any further discussion or advice from counsel. Mr. Bradbury asked if the question was whether they could go into Executive Session to which Chair Curtis replied yes. Mr. Bradbury stated that they could. With no further discussion, Chair Curtis called for the vote. Motion carried 6:0. The meeting recessed at 1:45 p.m. to convene in Executive Session. Board of Ethics Open Session September 21, 2018 Page 12 SUBJECT DISCUSSION ACTION The meeting reconvened in Open Session at 2:09 p.m. Chair Curtis asked the Board if they had any questions for Mr. Tabata. Ms. Tudela stated that she thought Mr. Tabata answered her question, which was, "how many more of these do you perceive happening?" She believed that his answer was that he did not know of any more planned work and asked if that was correct. Mr. Tabata stated that it was in reference to rescinding the opinion and that Ms. Shiraishi clarified that he could still be the RME. He added that any work that gets done would not entail any County oversight or review, noting that he needs to make disclosures to determine if there is a conflict. Chair Curtis called for public testimony. Mr. Taylor reiterated that perceived conflict was very real. He said he was really appalled after reading the action that took place in 2013 that the Board at the time didn't address the fact that the perceived conflict was a major issue. Mr. Taylor noted that he didn't see the minutes for that meeting, so he wasn't sure if there was any discussion about it, but it wasn't included in the opinion. He stated that he thought the advisory opinion should be revoked, especially now that Mr. Tabata is the Acting County Engineer. Mr. Taylor added that Mr. Tabata is a good man and he didn't think Mr. Tabata would intentionally do anything out of line; however, if they were to make a list of the possible conflicts of interest issues, the list would probably be double or triple the length of an arm. He noted that it was better to not have the perception of a conflict, especially in top management of County government, adding that it doesn't look good. Mr. Taylor stated that it was nothing personal against Mr. Tabata, but it's just what the facts are. He restated that he thought it was imperative to revoke the advisory opinion and leave it at that. Chair Curtis called Ms. Fountain -Tani awa to the table and asked if she was actin Board of Ethics Open Session September 21, 2018 Page 13 SUBJECT DISCUSSION ACTION personally, individually, or in a professional capacity to which she replied her professional capacity as the County Clerk. Ms. Fountain-Tanigawa stated that prior to the meeting, she was on the phone with an attorney for the National Labor Relations Board (NLRB) and they had expressed concern regarding the relationship between Mr. Tabata, the Acting County Engineer, and the firm who he is the RME for. She noted that there were currently four cases before the NLRB, and the attorney was surprised to hear that Mr. Tabata was the RME for the company. Ms. Fountain-Tanigawa mentioned that the attorney wanted more information, but she couldn't get into the specifics as to his responsibilities. They also spoke about information that the attorney obtained from the State's Contractors Licensing Board on Oahu regarding what an RME is and should be doing. Ms. Fountain-Tanigawa explained that the RME is responsible, by law, to assume direct management of the contracting entity that he is employed by. Direct management means the general supervision of the construction projects, the control of technical administrative decisions, personnel management, review of construction contracts, and enforcing compliance with all laws and rules affecting the construction business. Ms. Fountain-Tanigawa further explained that an RME is also held equally responsible, along with the licensed entity, for any violations of the Contractors Licensing Law, any Board rules, including failure to maintain financial responsibility. She added that an RME, technically, is considered the one who is principally employed by the contracting entity and who qualifies the contracting entity for licensure. Ms. Fountain-Tanigawa stated that although the firm that Mr. Tabata is the RME for, Kauai Veterans Express, obtained the contract through the suspension of 103D, which is the procurement law, and although the contract was let by the Parks Department, the Department of Public Works had or could have had involvement in the process because that contract involved hauling debris from the ponds, which would include things like trees, green waste, and other rubbish. She noted that the hauling of those materials — een waste itself — falls under the Department of Public Works. Ms. Fountain- Board of Ethics Open Session September 21, 2018 Page 14 SUBJECT DISCUSSION ACTION Tanigawa added that in the event something occurred, Mr. Tabata would have the sole responsibility of making that call. She stated that it was an interesting, yet somewhat confusing, situation because from what she was told, as the RME for Kauai Veterans Express, Mr. Tabata is responsible for anything going on with Kauai Veterans Express and the contract in the eyes of the DCCA. Ms. Fountain-Tanigawa questioned what would happen if he was operating in the capacity of the RME but needed to make calls relating to green waste and other issues related to Public Works, noting that Mr. Tabata does not have a deputy. Ms. Fountain-Tanigawa referred to Mr. Tabata's request for the advisory opinion in 2013 and noted that Mr. Tabata stated that he would be working for a general contracting firm. However, from her understanding, Kauai Veterans Express was not a general contracting firm; they were a hauling firm. Ms. Fountain-Tanigawa believes Kauai Veterans Express is still considered a hauling firm, but with Mr. Tabata as the RME, they can bid on other jobs. She referred to another part of Mr. Tabata's request where he stated that as the Deputy, he does not have any regulatory oversight and he does not have direct supervision. She noted that it was misleading to say he doesn't have direct supervision. Ms. Fountain-Tanigawa explained that he is responsible for the Department of Public Works, so she would say that he has complete supervision of everyone in the Department. She added that Mr. Tabata started handling or signing regulatory letters, which she believed was a concern and different from what was represented in 2013. Ms. Fountain-Tanigawa noted that the NLRB attorney asked her to convey their concern of what was happening. She guessed that it was a large case, but wasn't familiar with it. Ms. Fountain-Tanigawa mentioned that there must be much, much more than what it looks like superficially to rise to that level. Chair Curtis asked if the Board had any questions for Ms. Fountain-Tanigawa. Board of Ethics Open Session September 21, 2018 Page 15 SUBJECT DISCUSSION ACTION Ms. Tudela asked if there was an NLRB case currently open with the County to which Ms. Fountain Tanigawa replied that it involves the county of Kauai, not the "County of Kauai" itself. She noted that it involved Kauai Veterans Express and the operating engineers. Ms. Tudela asked Ms. Fountain-Tanigawa how many cases she was aware of to which she replied four. Ms. Tudela noted that Ms. Fountain-Tanigawa brought up a concern regarding regulatory letters and asked Ms. Fountain-Tanigawa to explain what the concern was. Ms. Fountain-Tanigawa stated that a situation was brought to their attention a few months ago on the council floor that involved Po`ipu Beach Park and the repairs that the Parks Department was handling. She explained that she believed the Parks Department went in to the Department of Public Works, Engineering Division to get an after -the -fact Special Management Area (SMA) Permit. Subsequently, the Parks Department was denied the permit because the value exceeded the threshold, so they couldn't get the permit as easily. Ms. Fountain-Tanigawa stated that she thought there were other steps that needed to be taken and apologized for not knowing the specifics. Noting that it was hearsay, she mentioned that the Parks Department was really upset and contacted Mr. Tabata. Since that time, Mr. Tabata took over drafting or signing regulatory letters, which would include instances where, for example, he would say to approve the permit. Hearing no further questions, Chair Curtis thanked Ms. Fountain-Tanigawa for her testimony. Chair Curtis asked if there were any comments from the Board regarding RAO 13-006. Ms. Burriss stated that it was her opinion that they could not void an advisory opinion that was rendered back in 2013 on facts that were pertinent at the time, noting that the advisory opinion should stand. She added that if there was a need for a new advisory Board of Ethics Open Session September 21, 2018 Page 16 SUBJECT DISCUSSION ACTION opinion based on updated facts and other concerns, then it should be requested. Ms. Shiraishi noted that there was an opinion of no conflict, but, as Mr. Toyofuku mentioned earlier, she questioned how facts in the "Background" section apply to the "Opinion" section, asking if it was part of the opinion or just an aside. She stated that she thought their purpose was to figure out the scope of the advisory opinion, what it means, and what it was based upon. Ms. Shiraishi also thought that they were there to give clarity to the future Board of Ethics in the event it comes up again, as well as give clarity to Mr. Tabata. Ms. Burriss suggested doing what she tried to do in law school, which was to go back into the legislative history if you don't understand a piece of legislation. She believed that the Board needed to look at the facts as the background for the opinion itself and what the body had in mind at the time. Ms. Burriss added that the "Background" information helps the Board to understand how the particular advisory opinion was rendered. Chair Curtis asked if it was the consensus of the Board that RAO 13-006 could not be revoked at the present time. If so, he asked to rescind the review and acceptance of Mr. Tabata's disclosure and that it be reconsidered. Ms. Burriss asked why to which Chair Curtis replied because of the perception of a conflict of interest with Mr. Tabata as the Acting County Engineer and as the RME for Kauai Veterans Express. He suggested that the Board readdress the apparent appearance of a conflict at a future meeting. Chair Curtis asked if there were any suggestions on another way to approach the issue. Mr. Bradbury stated that there might have been a misunderstanding as to what the advisory opinion does; it immunizes Mr. Tabata from committing an ethical violation. He noted that revoking the advisory opinion now wouldn't affect anything prior; however, it would stop him from going forward with any future contracts. Board of Ethics Open Session September 21, 2018 Page 17 SUBJECT DISCUSSION ACTION Administrator Courson noted that Ms. Burriss used the word "void" and he agreed that it would not void the prior opinion. He explained that "void" has a really specific meaning, which is that it wouldn't have existed in the first place. Administrator Courson pointed out that the word "revoke" is used in the Charter, and he heard different interpretations of what it means amongst the current board members, so he suggested that the Board either amend or revoke the opinion because he didn't think it was serving its purpose. He stated that it was not very clear guidance to Mr. Tabata. Administrator Courson noted that something needed to be done when even the Board can't agree on what it means. Ms. Tudela noted that she heard a suggestion that another letter from Mr. Tabata was needed in order to render another advisory opinion. She asked if the Board needed to do something with the current advisory opinion prior to issuing another one, and if so, who should initiate the opinion moving forward. Assuming the advisory opinion was revoked, Mr. Bradbury stated that Mr. Tabata would need to submit a new request if he intended to proceed the way he had in the past. Chair Curtis noted that that was his suggestion with regard to addressing Mr. Tabata's disclosure. Chair Curtis asked what the Board's preference was on addressing RAO 13-006. Ms. Tudela stated that she had a question about fines. Chair Curtis noted that that was a different issue that would be discussed at a later time. Chair Curtis asked if the Board wanted to take any action with regard to RAO 13-006. Ms. Burriss suggested taking no action and questioned what the Board would do if they did take action. She further asked if the intent was to revise the advisory opinion based on the fact that Mr. Tabata was now the Acting County Engineer. Chair Curtis agreed, stating that it should stand as history. Board of Ethics Open Session September 21, 2018 Page 18 SUBJECT DISCUSSION ACTION Chair Curtis suggested that Mr. Tabata's disclosure statement be received, subject to further discussion. He didn't think that the Board should accept the current disclosure statement of Mr. Tabata, the Acting County Engineer, as it stood, and he thought that it required additional exploration. Ms. Burriss added, "with regard to the nature of the RME." Chair Curtis stated yes, the apparent conflict. Ms. Tudela stated that it was her understanding that the Board's responsibility, as it relates to disclosure statements, was to review them and deem them complete. Chair Curtis added that it was also their responsibility to identify and address conflicts according to the ethics laws of the County of Kauai. Ms. Tudela noted that they were trying to keep the matters separate, and that was where she was confused. She pointed out that Mr. Tabata submitted a disclosure statement that was complete, noting that that was what they did for every other disclosure statement, and questioned whether she was correct or not. Administrator Courson explained that Ms. Tudela was reiterating advice from the Office of the County Attorney under Al Castillo, which was the standing advice of the County Attorney for many, many years. He noted that it might be worth revisiting to see if it continued to be the advice of the current County Attorney. Administrator Courson pointed out that Chair Curtis was referring to the language in the Charter — Section 20.05(D)(4) — that says, "To examine all disclosure statements filed and to comment on or advise corrective action to any matters that may indicate a conflict of interest." He stated that Ms. Tudela was citing advice from the County Attorney from some time ago, which was the source of her confusion. Ms. Tudela thanked Administrator Courson for the explanation and stated that she was fine with following Section 20.05(D)(4). She noted that in her experience on the Board, they never had a situation where there was a question; however, she agreed with the Chair that there was a question on Mr. Tabata's disclosure statement based on previous decisions. Ms. Tudela noted that she was in support of the Chair's recommendation. Board of Ethics Open Session September 21, 2018 Page 19 SUBJECT DISCUSSION ACTION Chair Curtis stated that the Board would readdress Mr. Tabata's disclosure statement and the apparent conflict of interest that the disclosure statement reveals at the next meeting. He entertained a motion to reexamine Mr. Tabata's disclosure statement and explore the conflict of interest between being the RME for Kauai Veterans Express and his current position at the County. Ms. Tudela stated that that meant they were rescinding the decision that was made an hour previous. Chair Curtis stated that they received it and identified a perceived conflict that will be addressed at the next meeting. Ms. Tudela noted that the Board received three disclosure statements at the meeting and voted on them, separating out one (Mr. Tabata's). She stated that they voted on it like they have in the past, so she thought they needed to be explicit in what they were going to do with the previous vote. Chair Curtis entertained a motion to reconsider Mr. Tabata's disclosure statement after discussion of that prior advisory opinion. Ms. Tudela stated that they would essentially be putting two things together so they could be discussed as one item. Chair Curtis replied yes. Administrator Courson explained that a motion to reconsider was a specific procedural thing. Anyone who voted in the majority could make that motion and it would take them back to square one. He also noted that a motion to receive was not the same thing as a motion to approve. A motion to receive acknowledges that the Board received it. Chair Curtis entertained a motion to reconsider the approval of Mr. Tabata's disclosure statement recently received and approved. He stated that the motion would prompt Mr. Tabata to return at the next meeting and explain the perception of a conflict of interest, and the Board would offer their opinion regarding its condition. Ms. Burriss moved to reconsider Board of Ethics Open Session September 21, 2018 Page 20 SUBJECT DISCUSSION ACTION the approval of Lyle Tabata's disclosure statement recently received and approved. Motion failed for lack of a second. Chair Curtis entertained another motion. Ms. Tudela moved to reconsider the approval of Lyle Tabata's disclosure statement recently received and approved referring to Charter Section 20.05(D)(4) as the Board continues to examine and advise corrective action as it relates to a potential conflict of interest. Ms. Burriss seconded the motion for discussion. Discussion: Administrator Courson stated that, procedurally, they were mixing two things. He explained that the motion should just be to reconsider the original motion, and if that motion passes, then that would be an appropriate time to do a new motion. If the motion to reconsider fails, then the original motion stands. Chair Curtis stated that Board action was required to withdraw the motion on the table and called for the vote. Motion carried 6:0 to withdraw the motion. Chair Curtis entertained a motion to rescind the receipt and approval of Mr. Tabata's disclosure statement. Ms. Burriss asked if that was previously where the Board was to which Chair Curtis replied yes. Administrator Courson clarified that the previous motion to reconsider had an additional action in it. He explained that an action took place — either to receive or approve Mr. Board of Ethics Open Session September 21, 2018 Page 21 SUBJECT DISCUSSION ACTION Tabata's disclosure statement — and if the Board wanted to reconsider that action, they would need to make a motion to that effect. Chair Curtis entertained a motion to rescind the prior receipt and approval of Mr. Tabata's disclosure statement. Ms. Burriss moved to rescind the prior receipt and approval of Mr. Tabata's disclosure statement. Motion failed for lack of a second. Chair Curtis stated that Mr. Tabata's disclosure statement was received and approved. Ms. Tudela asked to verify Chair Curtis' statement by reviewing the record. Administrator Courson requested a recess to give the clerk time to review the recording. Chair Curtis called for a five-minute recess. The meeting recessed at 2:49 p.m. The meeting reconvened at 3:01 p.m. Chair Curtis noted that the motion (projected on the wall) that passed was to accept Mr. Tabata's disclosure statement offered to them that day. He asked if anyone wanted to make a motion. Ms. Burriss asked if it was accepted as complete to which Ms. Tudela replied yes. Chair Curtis stated that the question was whether the Board wanted to rescind their earlier action, and then they could address it however they would like to. Ms. Burriss stated that she thought it should be in the record that Mr. Tabata, in fact, submitted his disclosure statement. Ms. Tudela added, "...and it was complete" and Ms. Burriss said yes. Board of Ethics Open Session September 21, 2018 Page 22 SUBJECT DISCUSSION ACTION Ms. Tudela asked what the next step was after a disclosure statement was accepted by the Board to which Administrator Courson replied that it is filed. Ms. Tudela asked if anything is sent back to the individual to which Administrator Courson replied no, and explained that has never been the practice, unless the Board was seeking clarification. Ms. Tudela stated that Mr. Tabata submitted his disclosure statement, the Board has accepted it, and it is complete; now they have a subsequent issue. Ms. Burriss noted that the motion may be to place the perceived conflict issue as it appears from the review of Mr. Tabata's disclosure statement in light of the 2013 opinion on the next meeting's agenda. She explained that by looking at the 2013 opinion and Mr. Tabata's disclosure statement, there was a question because of his role as the RME and his role as the Acting County Engineer. Mr. de la Pena stated that the previous advisory opinion was outdated based on the background information. Chair Curtis read Section 20.05(D)(2) of the Charter. Ms. Burriss pointed out that there are no charges, there was nothing to bind the Board, and the facts were different, referring to it as apples and oranges. Chair Curtis stated that the advisory opinion was binding until revoked or amended. Ms. Burriss noted that that was how she saw it and asked if Administrator Courson agreed with her to which he replied that he did. Administrator Courson noted that there has been a question and a split between the Board as to whether the validity of the advisory opinion was predicated on the "Background." He stated that Ms. Burriss' opinion was that the facts are different and it's apples and oranges, but if other people don't have the same opinion, then it doesn't provide clear guidance to Mr. Tabata or the public. If someone else thought that the facts were pretty similar and they were covered b the advisory opinion, Administrator Courson stated that that was the heart of his Board of Ethics Open Session September 21, 2018 Page 23 SUBJECT DISCUSSION ACTION concern. He added that he would like to see more clarity for everyone. Ms. Burriss stated that she thought it would require a request for an updated advisory opinion in light of Mr. Tabata's duties as they are presently described. She asked Mr. Tabata if he was willing to submit that request to which he replied yes. Mr. Toyofuku asked Administrator Courson if he was saying that the current advisory opinion was binding, and he replied yes. If the Board renders an advisory opinion based on the new information, Mr. Toyofuku asked if the current advisory opinion would be voided automatically or if the Board needed to officially say that it is revoked. Administrator Courson stated that the word "void" meant that it never existed at all. He noted that the current advisory opinion is good for the time that it was good and even if it was revoked going forward, anything that happened while the advisory opinion existed was binding on the Board. Mr. Toyofuku restated his question and asked what the correct process was if the Board wanted to render a new advisory opinion. He asked if they would amend the current advisory opinion, or if they would need to revoke it prior to rendering a new opinion. Administrator Courson stated that it was at the pleasure of the Board; however, the advice from the Board's counsel was that it would be cleaner to revoke the current advisory opinion and issue a new one. Hearing no motions or further discussion, Chair Curtis stated that they would move on to the next agenda item. Ms. Tudela stated that she was confused and asked if Chair Curtis was saying that the Board decided not to do anything with the agenda item because there was no motion. Chair Curtis asked if Ms. Tudela wanted to make a motion. She replied that she was t in to tie up the conversation and asked if the next step was to wait for Mr. Tabata to Board of Ethics Open Session September 21, 2018 Page 24 SUBJECT DISCUSSION ACTION request a new advisory opinion which would be placed on the agenda and taken up in normal order. Chair Curtis stated that they've discussed the perception of a conflict of interest in Mr. Tabata's disclosure statement and asked if Ms. Tudela wanted to make a motion with regard to that, and she replied no. Mr. de la Pena stated that Ms. Tudela was wondering what they were going to do with the agenda item. Chair Curtis stated that he will continue it to the next meeting. BOE 2018-14 Discussion and possible decision -making on amending the Disclosure Statement to include a "date" field Ms. Burriss stated that she said what she was going to say at the prior meeting and she wrote the date on her disclosure statement without a "date" field, so it worked for her. Chair Curtis noted that the notary dates the disclosure statement, so it was kind of redundant to have a "date" field. Mr. de la Pena agreed. Hearing no further comments from the Board, Chair Curtis called for any public testimony. Ms. Fountain-Tanigawa asked for clarification as to what the Board needed from her to which Chair Curtis replied that they needed the documentation of the disclosure statements, the potential for fines, and the statewide ethics practices and procedures that she mentioned. Chair Curtis asked Ms. Fountain-Tanigawa to submit the documentation to the Office of Boards and Commissions to be included on the next meeting's agenda. Ms. Fountain-Tanigawa asked if the Board needed any information regarding the RME and what the RME does to which Chair Curtis replied that it would be part of the discussion on the amendment of RAO 13-006. He encouraged any additional information that she would like to offer to the Board. Board of Ethics Open Session September 21, 2018 Page 25 SUBJECT DISCUSSION ACTION With no further discussion, the Board moved on to the next agenda item. Communication There was no communication. Executive ES-008: Executive Session Minutes of August 31, 2018 With no objections, Chair Curtis Session deferred the Executive Session Minutes of August 31, 2018, to the next meeting. Announcements Next Meeting. Friday, October 19, 2018 — 1:00 p.m., Mo`ikeha Building, Liquor Conference Room 3 Adjournment Ms. Tudela moved to adjourn. Ms. Burriss seconded the motion. Motion carried 6:0. Chair Curtis adjourned the meeting at 3:15 p.m. Submitted by: Darcie Agaran, Staff Support Clerk ( X ) Approved as circulated. ( ) Approved with amendments. See minutes of Reviewed and Approved by: meeting. Michael Curtis, Chair