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HomeMy WebLinkAbout2018_1019_BOE OP Minutes APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Annroved as circulated 12/7/18 Board/Commission: BOARD OF ETHICS Meeting Date I October 19, 2018 Location Mo`ikeha Building, Liquor Conference Room 3 Start of Meeting: 1:00 p.m. End of Meeting: 2:24 p.m. Present Chair Michael Curtis. 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 and Secretary Mia Shiraishi. Absent SUBJECT DISCUSSION ACTION Call To Order Chair Curtis called the meeting to order at 1:00 p.m. with five members present which constituted a quorum. Approval of Open Session Minutes of September 21, 2018 Mr. de la Pena moved to approve Minutes the Open Session minutes of September 21, 2018, as circulated. Ms. Tudela seconded the motion. Motion carried 5:0. Business BOE 2018-13 Discussion and possible amendment or revocation of a prior advisory opinion, RAO 13-006 Chair Curtis noted that BOE 2018-12 would be deferred to later in the meeting and moved on to BOE 2018-13. Chair Curtis asked if any of the Board members wanted to amend or revoke RAO 13-006. Administrator Courson explained that there were two items on the agenda: one was in regards to the prior advisory opinion and the other was the Acting County Engineer's new request for an advisory opinion. He stated that if the Board felt that the item regarding a possible amendment or revocation of the prior advisory opinion was moot iven the new request, a motion could be made to that effect. Board of Ethics Open Session October 19, 2018 Page 2 SUBJECT DISCUSSION ACTION Ms. Tudela asked if a motion was needed if they were going to deem it moot to which Chair Curtis replied that if they weren't going to do anything, then they didn't need to do anything. Hearingno desired action from the Board, Chair Curtis moved on to RAO 18-004. Request for an RAO 18-004 Request for an AdvisoryOpinion dated October 9, 2018, from Lyle Tabata irm to act as the RME for a local ,general contracting firm Advisory Opinion Ms. Tudela asked if the documents identified as BOE 2018-13.a. and b. could be used as information for RAO 18-004 to which Chair Curtis replied yes. For discussion purposes, Ms. Tudela moved to find no conflict with Mr. Lyle Tabata's request to be an RME. Ms. Burriss seconded the motion. Discussion: Chair Curtis asked if Mr. Lyle Tabata wanted to comment. Mr. Tabata, Acting County Engineer, explained that the second letter — from Stanley Morinaka — was submitted to specifically clarify which parts of the company he was involved with and the type of work he would be involved with. Ms. Tudela thanked Mr. Tabata for providing that documentation. Mr. Toyofuku asked if Kauai Veterans Express Company, Ltd. ("Kaua`i Veterans Express") was the company Mr. Tabata was the RME for to which Mr. Tabata replied yes. Mr. Toyofuku noted that Mr. Tabata's license was with the construction side of the company, and Mr. Tabata confirmed that was correct. Mr. Toyofuku asked if the previous Lydgate contract was done by the trucking operations to which Mr. Tabata replied yes. Mr. Toyofuku asked if the trucking operations was a separate operation or division under Kauai Veterans Express to which Board of Ethics Open Session October 19, 2018 Page 3 SUBJECT DISCUSSION ACTION Mr. Tabata replied that it was a separate section of the company that he was not involved with, but he noted that it has since been separated out from Kauai Veterans Express. Mr. Toyofuku asked for the entity's name of trucking operations, but Mr. Tabata didn't have it on hand. Chair Curtis noted that the entity's name was mentioned in a prior meeting. Mr. Tabata stated that he also provided the minutes of the Contractors License Board meeting of August 16, 2018, to explain that a contractor's license was not required for the Lydgate project. Mr. Toyofuku stated that Kauai Veterans Express would not be bidding on any contract jobs with the County of Kauai if Mr. Tabata was allowed to be the RME, and Mr. Tabata said that was correct. Mr. Toyofuku asked if the Board was voting to say that there is no conflict to which Chair Curtis replied that that was the motion. He stated that he wanted to be real clear because there was a question on the previous opinion and Mr. Tabata stated that while he is the RME, Kauai Veterans Express would not have any contracts with the County of Kauai. Mr. Toyofuku asked if the Lydgate contract was under Kauai Veterans Express to which Mr. Tabata replied yes. Chair Curtis noted that the first contract was, but the subsequent contract was with the separate entity. Mr. Toyofuku wanted to reconfirm that Mr. Tabata would act as the RME for Kauai Veterans Express and the contractor's licensing part of the company would not bid on County contracts to which Mr. Tabata said, "Correct." Mr. Toyof iku noted that Kauai Veterans Express no longer has trucking operations and the separate entity for the trucking operations could bid on County contracts. Mr. Tabata stated that that has happened, adding that he was not affiliated with that separate entity. Board of Ethics Open Session October 19, 2018 Page 4 SUBJECT DISCUSSION ACTION Ms. Tudela noted that the letter from the Contractors License Board clearly stated that a contractor's license was not required for the clearing of debris at Lydgate Beach Park. Mr. Toyofuku explained that the reason for his questioning was because Mr. Tabata previously stated that Kauai Veterans Express would not have any contracts with the County, but they did (for work that did not require his contractor's license). Moving forward, Mr. Toyofuku stated that if the trucking operations were to bid on County jobs under Kauai Veterans Express, he would perceive that as a possible conflict of interest. Ms. Tudela agreed, stating that as long as Kauai Veterans Express and the trucking entity were separate entities, then there was no conflict; however, it's a problem as soon as they crossover either line. Mr. Toyofuku asked if it was safe to say that Kauai Veterans Express would not be bidding on jobs on the trucking side for the County of Kauai to which Mr. Tabata replied yes. Ms. Tudela suggested to amend the motion to include language that differentiates the two entities because if Kauai Veterans Express and the trucking entity are combined in the future, it would be perceived as a possible conflict. Ms. Tudela moved to find no conflict with request by Mr. Lyle Tabata, while an employee of the County of Kauai, to be the RME as long as Kauai Veterans Express Company, Ltd. will not contract with the County. Ms. Burriss seconded the motion. Discussion: Mr. de la Pena asked if Mr. Tabata was okay with the motion to which Mr. Tabata replied yes. Board of Ethics Open Session October 19, 2018 Page 5 SUBJECT DISCUSSION ACTION Chair Curtis reiterated that the motion implied that Kauai Veterans Express cannot contract with the County of Kauai, period. Ms. Tudela noted that they were building a big, bright wall around Kauai Veterans Express, and Mr. de la Pena commented that it was quite a wall. Ms. Burriss stated that it was okay because as it was understood, Kauai Veterans Express has never contracted with the County anyway. With no further discussion, Chair Curtis called for the vote. Motion carried 5:0. RAO 18-005 Request for an Advisory pinion dated October 9, 2018, from Jason Kagimoto to attend an international trade fair, ECOMONDO, paid for by the Italian Trade Commission Chair Curtis asked for the Board members' thoughts to which Ms. Tudela stated, "For every give, there's a get." She added that it was a highly unusual situation that she has never experienced in the mainland, and asked for assistance in understanding why the Italian Trade Commission was paying for his expenses. Mr. Jason Kagimoto, Chief of the Wastewater Management Division for Public Works, explained that the Italian Trade Commission was hosting a big environmental conference focused on the different environmental fields; i.e. solid waste, wastewater, air, etc. He noted that they were offering to pay for air fare, room and board, and the conference fee. Mr. Kagimoto stated that it was his understanding that the purpose of the offer was to bring people together to have a better idea of the different worldwide situations for the different fields; specifically to the Wastewater Division, the environmental challenges that they face, how they are trying to attack them, and the opportunity to learn what other people in similar situations — i.e. an island or have a tropical climate — are doing and find out how they address their environmental regulations. He noted that it sounded like there would be business collaboration meetings to share information to ensure that the attendees are aware of the types of Board of Ethics Open Session October 19, 2018 Page 6 SUBJECT DISCUSSION ACTION technologies that were out there and for the attendees to share the challenges they face as far as trying to run their utility and ensuring that environmental regulations are being met. Ms. Tudela stated that she didn't question the fact that it would be valuable, noting that she visited the website and that it was very prestigious. She understood and noted that the County might need it, but she questioned where the reciprocal was. Ms. Tudela asked if Mr. Kagimoto could tell her how many other people's expenses were being paid for across the world to which he replied that he was not sure. Ms. Tudela asked how he received the invitation and how it came about to which Mr. Kagimoto replied that there was a point of contact who works for a private company that knew of this opportunity and that person had the ability to suggest people to attend the conference. Ms. Tudela asked if the County had plans and the budget to purchase systems, software, or intelligence in the Wastewater field to which Mr. Kagimoto replied that it was his understanding that the County has never purchased from any of the Italian companies. He added that the County was not aware of any of the technologies to implement, so there were no future plans to do any purchasing of any kind. Ms. Tudela questioned if it was in the County's budget to make any purchases for next year. Ms. Burriss stated that Mr. Kagimoto didn't know the extent of which other people have been extended invitations and asked if that was correct to which Mr. Kagimoto replied yes, that was correct. Ms. Burriss asked if she could assume that he also did not know whether other people have been given specific grants from government agencies to reach out and get the least likely (to attend the conference) to which Mr. Kagimoto replied yes, he was not sure. Board of Ethics Open Session October 19, 2018 Page 7 SUBJECT DISCUSSION ACTION Chair Curtis asked who recommended him for the conference to which Mr. Kagimoto replied Mark Vanderbeken, whom works for a company that sells equipment. Chair Curtis asked if the County purchases equipment from Mr. Vanderbeken's company to which Mr. Kagimoto replied no. Chair Curtis noted that attending the conference was an opportunity to learn new technologies, products and vendors, and asked if the County would benefit from his participation. Mr. Kagimoto nodded his head and stated that there was a U.S. version of the conference called WEFTEC, which is a water/wastewater conference. He explained that there was a multitude of different technical sessions at those conferences where engineers, scientists, or vendors talk about their products or projects. Mr. Kagimoto noted that in addition to the U.S. and worldwide conference, there's a statewide conference that is held on Oahu. Each conference has a different magnitude and a different amount of people, but as far as the benefit, Mr. Kagimoto stated that there was no doubt that it would be an opportunity to learn a lot and get exposed to different companies or problem solutions that they wouldn't be able to get being on Kauai. Mr. de la Pena asked if anyone from Kauai has attended the statewide or U.S. version of the conference and asked if it was paid for by the County to which Mr. Kagimoto replied yes. Chair Curtis asked if Mr. Tabata had any comments. Mr. Tabata stated that he suggested Mr. Kagimoto attend this conference because it was an opportunity that is very timely in this day and age when the industry is rapidly changing, and looking for new opportunities to improve their operations to be more effective, efficient, and become more sustainable was something they needed to jump into. He expects Mr. Kagimoto to at least go and look into the different opportunities that are out there, adding that the European technology has outpaced the U.S. With the County trying to site a new landfill, Mr. Tabata stated that there were tremendous opportunities out there for technical advancement that they don't have the ability to encounter being as isolated Board of Ethics Open Session October 19, 2018 Page 8 SUBJECT DISCUSSION ACTION as they are. He acknowledged that they attend the national conferences, but this conference would be a more European -focused environment. Mr. Tabata explained that the conferences include technical sessions for engineers, operators, and manufacturers that bring their collective minds together to present different opportunities. It was Mr. Tabata's understanding that there was zero obligation to make any purchases, but for him, the obligation was to bring home the knowledge. He stated that he expected the employee to return home with the knowledge gained so that they could look at something to employ to make them better. Acknowledging the Department of Health's reports regarding the need to clean up the hot spots on the island and to get out of septic and cesspools, Mr. Tabata mentioned that if Mr. Kagimoto could bring back one or two things that could help the County move forward, then that would be a huge accomplishment. Mr. Tabata stated that he understood the concerns, but for him, it was the trust in the employee that he will spend the time wisely, and he expects nothing less from the people he works with. Ms. Tudela asked what prohibited the County from making a decision to have Mr. Kagimoto attend the conference because of all the benefits that was just described without someone else paying for it to which Chair Curtis replied the cost. Ms. Tudela agreed that it was the cost, and she didn't argue with the value or anything Mr. Kagimoto and Mr. Tabata have said; however, the stickler for her was the expected reciprocal nature of having the expenses paid for, noting that she was personally uncomfortable with it. Mr. Toyof iku asked if Mr. Tabata was aware of other employees or departments that were sent to these types of conventions where the expenses weren't paid for by the County to which Mr. Tabata replied no, not during his almost eight years with the County. Mr. Toyofuku stated that he saw the value and the concerns, noting that the County was Board of Ethics Open Session October 19, 2018 Page 9 SUBJECT DISCUSSION ACTION not really expected to purchase anything. He added that Mr. Tabata was correct in that the trust would be placed in the employee that he would be attending the conference and not using the trip as a vacation. Ms. Tudela noted that that was not the concern and that she thought they would be setting a dangerous precedent if the County has never accepted vendors paying the expenses previously. She stated that it was not necessarily unusual for a vendor to extend this type of invitation when you have a private relationship with them, but in this case, there was no relationship. Mr. Toyofuku asked what Mr. Kagimoto's timeframe was to which Mr. de la Pena pointed out that the conference is from November 6th to the 9th. Mr. Kagimoto noted that it was a last minute invitation and they were lucky to get it. Ms. Tudela stated that she understood why the Italian Trade Commission would offer to pay the expenses as it is economic development and that she wasn't necessarily against that type of thing. But in this case, it involved a county, not a private company. Chair Curtis stated that it was an exchange of information in technology, noting that Mr. Kagimoto would share his expertise if he got the chance to go. Ms. Tudela stated that all the information that is needed is available via the internet, telephone calls, etc. She didn't think that the Board should support an exchange where the County was not paying for the expenses of the employee. Ms. Tudela added that if the County thought it was so valuable, then the County should pay for the expense of the employee. She noted that she was not comfortable with having something paid for. Ms. Burriss commented that she would love to see Mr. Kagimoto take advantage of the opportunity and attend the conference. She asked if there was any way, shape, or form that Mr. Kagimoto would, in the future, be involved with the purchase of anything being sold by the people at the conference; both Mr. Tabata and Mr. Kagimoto replied no. Ms. Burriss noted that it would be subject to review, bidding, and other processes. Mr. Tabata stated that there would have to be a public bidding process. Chair Curtis Board of Ethics Open Session October 19, 2018 Page 10 SUBJECT DISCUSSION ACTION commented that the County had a strict procurement process. Ms. Burriss stated that she was less concerned than Ms. Tudela. Chair Curtis stated that he felt the opposite of Ms. Tudela, noting that he saw it as an opportunity. He added that Mr. Kagimoto will benefit as far as his experience and knowledge, but he would bring that experience and knowledge back in his position as a County employee. Chair Curtis didn't think that Mr. Kagimoto stood to benefit financially, other than the experience of the trip. Ms. Tudela reiterated her concern and asked if the County has ever done this before and if a precedent was being set to which Mr. Tabata replied that he believed that the County has never been afforded this opportunity. Chair Curtis called for a motion. Mr. de la Pena moved to find no conflict. Ms. Burriss seconded the motion. Hearing no further discussion, Chair Curtis called for the vote by a show of hands. Motion carried 4:1 (Nay -Ms. Tudela). 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 [deferred 91211187 Chair Curtis noted that Ms. Fountain-Tanigawa mentioned penalties for failing to file timely disclosures at the previous meeting. He asked Administrator Courson for the Board's process to define and set parameters for penalties for late/improper filings of disclosure statements by those required to file to which Administrator Courson replied that he wasn't sure if the Board's counsel agreed with him, but he would recommend administrative rules pursuant to HRS 91. Administrator Courson clarified that Items a. through £ came from him, not the County Board of Ethics Open Session October 19, 2018 Page 11 SUBJECT DISCUSSION ACTION Clerk, so there might've been some duplication. Chair Curtis stated that the Board received Ms. Fountain-Tanigawa's letter dated October 11, 2018, and asked her to share her wisdom with the Board. Referring to Administrator Courson's comment, Ms. Fountain-Tanigawa asked if he said that he felt administrative rules were necessary to which Administrator Courson replied no, he would recommend them. He added that he wouldn't make the argument that administrative rules were, strictly speaking, necessary. Ms. Fountain-Tanigawa noted that administrative rules were not necessary. She stated that she strongly believed that a violation of The Charter was a violation of The Charter, which shall constitute cause for fine, suspension, or removal from office or employment. Ms. Fountain-Tanigawa added that the Board could discuss the basis of a fine as they have the ability to impose it. She noted that there was a default provision in The Charter that a violation shall be subject to a fine not to exceed $1,000. To clarify, Chair Curtis asked if the Board had the authority to fine up to $1,000 for a violation per Ms. Fountain-Tanigawa's read of The Charter to which she replied yes, citing the default provision as Section 23.10. Ms. Fountain-Tanigawa stated that it sets the tone as to how serious the Board is and why disclosure is necessary. Chair Curtis concurred. Chair Curtis asked for counsel's opinion related to fines and the definition of fines to which Deputy County Attorney Mark Bradbury replied that he reviewed the other counties' rules and saw that the requirements for disclosure statements were different amongst the counties. Mr. Bradbury stated that the other counties file annual disclosures that are tracked, so if an individual hasn't disclosed, a 10-day notice to submit a disclosure would be sent to that individual. If the 10 days pass and the individual still has not submitted a disclosure, then the fines would be implemented. Board of Ethics Open Session October 19, 2018 Page 12 SUBJECT DISCUSSION ACTION Whereas, for the County of Kauai, there was no grace period and, more importantly, the onus was on the individual to determine whether or not an amended disclosure was necessary. With regard to Mr. Tabata, Mr. Bradbury stated that the duties of Mr. Tabata have not changed; the change was in the name of his office. Referring to the disclosure statement requirements, Mr. Bradbury noted that the information that must be disclosed are interests in real property, interests in business(es) in contract with the County, places of employment, sources of income, etc. He added that the only relative item was the officer and director position(s), and he didn't believe that pertained to Mr. Tabata's position at the County but positions in the private sector. Mr. Bradbury stated that he found it vague with regard to whether or not anything changed, noting that he didn't know what duties Mr. Tabata brought on as the Acting County Engineer. Chair Curtis stated that it was his understanding that the only change on Mr. Tabata's disclosure statement was the change in his position with the County, adding that it was not a substantive change as his duties remained the same. Chair Curtis noted that he wanted to have a discussion on the ambiguity that Mr. Bradbury pointed out, which was that the other counties have an annual disclosure requirement, whereas the County of Kauai required an updated disclosure within 30 days of any change in the required information to disclose. Chair Curtis also noted that the other counties have specific timelines to determine the fines related to a failure to disclose. If the Board was interested in tightening up their rules or specifying reasonable fines and requirements for disclosures similar to the other counties, then he suggested to ask staff for proposed rules and regulations that the Board could consider. Ms. Tudela asked who had the authority to make those changes to which Administrator Courson replied that the required update within 30 days was a Charter -based requirement, so a change in that would require a Charter amendment. With regard to rules to implement fines, Administrator Courson stated that the Board had rule -making Board of Ethics Open Session October 19, 2018 Page 13 SUBJECT DISCUSSION ACTION powers to do so within the purview of the Code of Ethics. Chair Curtis asked if they would be limited to a $1,000 fine to which Administrator Courson replied that the Clerk was referring to a catch-all penalty in The Charter. Administrator Courson noted that he would resort to the catch-all when there was not a specific penalty. He stated that there was a specific penalty for disclosures, which is a fine, so the catch-all penalty didn't apply to disclosures. Administrator Courson added that he didn't think the Board was limited to $1,000, and that they could possibly exceed $1,000. Chair Curtis asked for Ms. Fountain-Tanigawa's thoughts and she suggested an imposition of a fine. Ms. Fountain-Tanigawa asked if a statement was made that the duties of the Deputy County Engineer were different from those of the Acting County Engineer to which Chair Curtis replied that that was what he said but it might not be true. Ms. Fountain-Tanigawa stated that she was always under the belief and impression that the department head had significantly more responsibilities, noting the fact that Mr. Tabata did not have a deputy was an odd situation. She personally would suggest a penalty because it was a Charter violation. Ms. Fountain-Tanigawa added that she thought the State's fine of $75 plus $10 for every subsequent day the disclosure was late was reasonable, and that it would really stress the importance of disclosure and make it that much more important. She felt that sometimes people didn't view disclosures as being very important or necessary, but Ms. Fountain-Tanigawa stated that disclosure statements say a lot and provide the public with the necessary transparency that is expected from government. Ms. Tudela stated that she was not in support of a fine for Mr. Tabata because of the concern for equal treatment countywide. Her concern was whether there were other department heads or other County officials that were potentially in the same situation that the Board wasn't aware of because they hadn't appeared before the Board. Ms. Tudela noted that she supported what the Chair said in that Mr. Tabata's new disclosure Board of Ethics Open Session October 19, 2018 Page 14 SUBJECT DISCUSSION ACTION reflected a position title change. It was her understanding that in reviewing disclosure statements, it was the Board's responsibility to look for and determine conflicts in relationships outside of the County. Ms. Tudela suggested to implement a process to notice those required to disclose with a penalty and fee schedule attached so that everyone would be noticed appropriately. Chair Curtis stated that in discussions with Administrator Courson, there was an upcoming election and a change in administration which presented an opportunity to require new disclosures and specify the fines for non-compliance — a significant violation of The Charter as Ms. Fountain-Tanigawa pointed out. Ms. Tudela noted that she was in support of an annual requirement for disclosures as it places the onus on the individual. Administrator Courson explained that the 30-day requirement was a provision in The Charter, so the Board would need to propose the annual requirement to the Charter Review Commission or Council to float a Charter amendment in 2020. Ms. Tudela moved to send to staff and to ask for an explicit recommendation on the steps to be taken at the Charter level and the administrative level to improve the existing countywide disclosure requirement coupled with a fine schedule for non-compliance. Ms. Burriss seconded the motion. Discussion: Ms. Fountain-Tanigawa asked if the Board was implying that some Charter violations were not as important as others or that different violations should be treated differently to which Chair Curtis replied that they were discussing disclosures and that a failure to disclose is a Charter violation. Chair Curtis stated that there were other Charter Board of Ethics Open Session October 19, 2018 Page 15 SUBJECT DISCUSSION ACTION violations other than failure to disclose, but the Board was not addressing any other Charter violation. Ms. Fountain-Tanigawa noted that her concern was that a precedent would be set and that a Charter violation might not be taken seriously. Chair Curtis commented that he thought Ms. Fountain-Tanigawa was suggesting that some disclosures, or lack thereof, were more significant than others. Ms. Fountain-Tanigawa said no, that her concern was a Charter violation with regard to disclosures would be seen as not as important as violations of other parts of The Charter. Chair Curtis stated that he didn't think the Board was headed in that direction. He noted that he was sure there were other violations of The Charter that were more significant than failing to disclose. Ms. Fountain-Tanigawa stated that that was where she was confused because her feeling was that a Charter violation was one in the same. Chair Curtis compared an individual paying his/her brother to do something with an individual failing to disclose, stating that they were both Charter violations but of different gravities. Chair Curtis asked that the discussion be limited to disclosures and defining the ambiguities that Ms. Fountain-Tanigawa brought to the Board's attention, which was appreciated. With all due respect, Ms. Burriss commented that she didn't think it was fair to ask the Board to weigh one violation against another as there could be mitigating circumstances. Ms. Fountain-Tanigawa asked how late disclosures would be handled moving forward to which Chair Curtis replied that the Board would be defining that, noting that things would remain consistent until there were rules that could be shared with everyone affected by those rules. Chair Curtis asked if Mr. Bradbury could develop the rules to which Mr. Bradbury replied yes. Mr. Bradbury noted that it was very simple to do at the Board's level as opposed to the Charter level. Board of Ethics Open Session October 19, 2018 Page 16 SUBJECT DISCUSSION ACTION Mr. Toyofuku questioned whether "the Charter level" needed to be removed from the motion. Ms. Burriss commented that the Board didn't have to implement both at the same time, and Chair Curtis stated that the Board was requesting for guidance on making changes to The Charter, but if they don't need to go down that route, then they won't. With no further discussion, Chair Curtis called for the vote. Motion carried 5:0. BOE 2018-15 Review and possible approval of Meeting Schedule for 2019 Mr. Toyofuku moved to approve the Meeting Schedule for 2019. Mr. de la Pena seconded the motion. Motion carried 5:0. BOE 2018-16 Election of Chair and Vice Chair for Calendar Year 2019 Administrator Courson noted that the Board of Ethics was unusual in that there was a Secretary position that needed to be filled as well. Mr. de la Pena nominated Mr. Toyofuku for the position of Chair for 2019, Ms. Shiraishi for the position of Vice Chair for 2019, and Ms. Burriss for the position of Secretary for 2019. Mr. de la Pena moved to close the nominations. Ms. Tudela seconded the motion. Motion carried 5:0. Disclosures 1. Elesther Calipjo — Planning Commission 2. Michael C. Curtis — Board of Ethics Ms. Tudela asked if they needed to go into Executive Session to discuss imposing a fine on a particular individual because she believed it was a loose thread that was not handled in the last discussion. Chair Curtis stated that the Board has asked staff to provide a recommendation to define the fines that will be imposed for violations of the disclosure requirement. Administrator Courson noted that the question could be Board of Ethics Open Session October 19, 2018 Page 17 SUBJECT DISCUSSION ACTION answered as part of the recommendation. Ms. Tudela noted that it was implied in the conversation, but it wasn't explicit, and thought that the Board owed Mr. Tabata a decision. Chair Curtis stated that an action to initiate a fine would occur if they found a violation, but the Board decided that there was no violation. Ms. Tudela stated that she didn't think the Board's decision was explicit. Chair Curtis asked if the Board approved Mr. Tabata's disclosure statement. Administrator Courson explained that his understanding was that the Board accepted Mr. Tabata's disclosure statement, and subsequent to that, the Chair asked if the Board wanted to reconsider the acceptance, but the motion failed (for lack of a second). So the status of Mr. Tabata's disclosure statement was that it was accepted by the Board of Ethics and there was no other item pending. Ms. Tudela asked if Mr. Tabata had that understanding to which Administrator Courson replied that he could clarify it with Mr. Tabata if that was the Board's pleasure. Mr. Bradbury asked Administrator Courson how to address Ms. Fountain-Tanigawa's request. Administrator Courson stated that the Board could respond saying that her letter was received, the Board didn't see it as a Charter violation, and inform her that the Board would be looking into implementing administrative fines; noting that the Board could do whatever they wanted. Chair Curtis mentioned that Ms. Fountain-Tanigawa shared with the Board that they had the authority to fine up to $1,000 for a Charter violation. Ms. Tudela stated that she believed there was an implicit recommendation by Ms. Fountain-Tanigawa that a violation was a violation, so she heard in that inference that the Board should be considering whether or not to fine Mr. Tabata. Chair Curtis stated that their action implied that they chose to ignore that. Ms. Tudela noted that she would like to be more explicit on the record. Administrator Courson stated that the Board shouldn't be getting to the question of whether they were going to impose a fine unless Board of Ethics Open Session October 19, 2018 Page 18 SUBJECT DISCUSSION ACTION they were considering the question of whether there was a violation. He noted that the Ms. Fountain-Tanigawa was assuming there was a violation, but the Board never found one. Chair Curtis stated that was correct and the Board's lack of action was their statement. And because there was no action on the specific case, Ms. Tudela commented that Mr. Tabata might have walked out of the room thinking that there was no resolution and that he may be fined in the future, and that was why she thought they should have the discussion in Executive Session. Administrator Courson noted that the Board could move into an unanticipated Executive Session if they wanted to have a conversation regarding disclosures. Ms. Tudela stated that she would be comfortable if someone communicated to Mr. Tabata that his disclosure was accepted and there was no further action on it. Chair Curtis noted that he was fine with that. Administrator Courson stated that he would inform Mr. Tabata that the Board accepted his disclosure at the September meeting and there was no pending consideration of a violation against him. Chair Curtis mentioned that Administrator Courson was welcomed to do that informally if that was reflected in the minutes. With no further discussion, Chair Curtis entertained a motion to accept Disclosure 1 for Elesther Calipjo. Ms. Burriss moved to accept Disclosure 1 as complete. Ms. Tudela seconded the motion. Motion carried 5:0. Chair Curtis entertained a motion to accept Disclosure 2 for Michael C. Curtis. Mr. de la Pena moved to accept Disclosure 2. Ms. Burriss seconded the motion. Motion carried 4:0:1 (Abstention -Chair Curtis). Mr. Bradbury noted that he wanted to point something out regarding the disclosure statement. Referring to the instruction sheet, he pointed out that it says "WHO MUST Board of Ethics Open Session October 19, 2018 Page 19 SUBJECT DISCUSSION ACTION FILE," which referred to someone in a position like Mr. Tabata. Further down the sheet, Mr. Bradbury noted that it says "WHAT TO FILE" and then there was a list of items that required disclosure. He then stated that disclosures must be updated within 30 days of any change in the information that requires disclosure, which was noted under "AMENDMENTS." Mr. Bradbury commented that Ms. Fountain-Tanigawa was arguing more form over substance, stating that the substance was to give the public and the Board the information to determine whether a conflict exists, which was why he didn't feel that Mr. Tabata failed to disclose. Chair Curtis noted that the Board didn't feel that way either. Mr. Bradbury commented that the heading was the confusing part and posed a question of whether he would need to submit a new disclosure statement if his position changed from Deputy County Attorney to First Deputy County Attorney, noting that his duties don't change. Administrator Courson stated that as First Deputy, he would have supervision over the other deputies. Mr. Bradbury asked how that would present a conflict and Ms. Tudela asked what else would change on the form to which Administrator Courson replied he did not know, but he just wanted to mention that there was a distinction. He noted that he filed a disclosure when he transferred from Deputy County Attorney to Administrator, and that wasn't to satisfy the "what to file" but the "who to file." Chair Curtis asked for it to be considered in the "when to file" with Mr. Bradbury's review of the information. Mr. Bradbury stated that he will look at everything. Referring to the "General Information" section of the disclosure statement, Ms. Tudela pointed out that the position title is on the form. Mr. Bradbury stated that that was correct, but that it informed the Board that the disclosure statement was for an individual that needed to disclose, and the subsequent items were the items that needed to be disclosed. Ms. Tudela stated that she followed the logic and agreed with Mr. Bradbury. She noted that she wasn't sure if a title change needed to be disclosed, adding that if she was elected to the Board of Grove Farm, then that would be a change that would need to Board of Ethics Open Session October 19, 2018 Page 20 SUBJECT DISCUSSION ACTION be disclosed. Administrator Courson asked if the public would be curious about an individual that transferred from the Board of Ethics to the Planning Commission to which Chair Curtis replied yes. Administrator Courson pointed out that the individual would be an official either way, and it was their title that was changing. Mr. de la Pena and Chair Curtis added that the person's capacity, responsibilities, and authority would change as well. Administrator Courson stated that it might be better to hone in on that and not simply say that titles don't matter, but the underlying work would need to be done to figure out if the responsibilities have changed. He noted that Mr. Bradbury's example of Deputy to First Deputy might not have a lot of changes, but the Planning Commission wields tremendous power over zoning and the Board of Ethics is a completely different bailiwick. Chair Curtis agreed. Mr. Bradbury stated that they might have to revise the instruction sheet to include a change of position in the "what to file" to make it clear. 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 [deferred 91211181 Session ES-009: Executive Session Minutes of September 21, 2018 Hearing no discussion on the Executive Session minutes, Chair Curtis entertained a motion to approve the minutes of August 31, 2018, and September 21, 2018. Mr. de la Pena moved to approve the Executive Session minutes of August 31, 2018, and September 21, 2018, as circulated. Ms. Tudela seconded the motion. Motion carried 5:0. Announcements Next Meeting: Friday, November 16, 2018 — 1:00 p.m., Mo`ikeha Building, Liquor Conference Room 3 Board of Ethics Open Session October 19, 2018 Page 21 SUBJECT DISCUSSION ACTION Ms. Tudela noted that she will be on the mainland in November and will not be attending the November meeting. Adjournment With no objections, Chair Curtis adjourned the meeting at 2:24 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