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HomeMy WebLinkAboutBOE_2022_0812_Notice_Agenda_Packet.pdf BOARD OF ETHICS SUSAN BURRISS, MEMBER ROSE RAMOS-BENZEL, MEMBER DEAN TOYOFUKU, MEMBER KELLY GENTRY, CHAIR JOHN LATKIEWICZ, VICE CHAIR RYAN de la PENA, SECRETARY Meetings of the Board of Ethics will be conducted as follows until further notice: • Meetings will be publicly noticed pursuant to HRS Chapter 92. • Minutes of meetings will be completed pursuant to HRS Chapter 92 and posted to the Commission’s website upon completion and approval. Public Comments and Testimony: • Written testimony will be accepted for any agenda item herein. o Written testimony indicating your 1) name, and if applicable, you position/title and organization you are representing, 2) the agenda item that you are providing comment on, and 3) contact information (telephone number and email address), may be submitted to asegreti@kauai.gov or mailed to the Board of Ethics, c/o Office of Boards and Commission, 4444 Rice Street, Suite 300, Lihue, Hawaii 96766. o Written testimony received by the Board of Ethics at least 24 hours prior to the meeting will be distributed to all Board of Ethics Members prior to the meeting. o Any testimony received after this time and up to the start of the meeting will be summarized by the Clerk of the Board during the meeting and added to the record thereafter. o Any late testimony received will be distributed to the to the members after the meeting is concluded. o • Oral testimony will be taken during the public testimony portion of the meeting. o It is recommended that anyone interested in providing oral testimony register at least 24 hours prior to the meeting by emailing asegreti@kauai.gov or calling (808) 241-4917. Any request to register shall include your 1) name, and if applicable, your position/title and organization you are representing, and 2) the agenda item that you are providing comment on, and 3) contact information (telephone number and email address). o Per the Board of Ethics’s and Chairs practice, there is three-minute time limit per testifier per agenda item. o Individuals who have not registered to provide testimony will be given an opportunity to speak on an agenda item following the registered speaker. SPECIAL ASSISTANCE IF YOU NEED AN AUXILIARY AID/SERVICE, OTHER ACCOMMODATION DUE TO A DISABILITY, OR AN INTERPRETER FOR NON-ENGLISH SPEAKING PERSONS PLEASE CONTACT THE OFFICE OF BOARDS AND COMMISSIONS AT (808) 241-4917 OR ASEGRETI@KAUAI.GOV AS SOON AS POSSIBLE. REQUESTS MADE AS EARLY AS POSSIBLE WILL ALLOW ADEQUATE TIME TO FULFILL YOUR REQUEST. UPON REQUEST, THIS NOTICE IS AVAILABLE IN ALTERNATIVE FORMATS SUCH AS LARGE PRINT, BRAILLE, OR ELECTRONIC COPY. BOARD OF ETHICS SUSAN BURRISS, MEMBER ROSE RAMOS-BENZEL, MEMBER DEAN TOYOFUKU, MEMBER KELLY GENTRY, CHAIR JOHN LATKIEWICZ, VICE CHAIR RYAN de la PENA, SECRETARY REGULAR MONTHLY TELECONFERENCE MEETING NOTICE AND AGENDA Friday, August 12, 2022 1:00 p.m. or shortly thereafter Līhu`e Civic Center Pi`ikoi Building, Suite 300 4444 Rice Street, Līhu`e, HI 96766 Microsoft Teams Conferencing Information Click on the link below or enter the url in your network browser to join on your computer or mobile app by VIDEO: https://bit.ly/3QcwIf7 Or Dial phone number and enter conference ID to call in and join by AUDIO: Phone: +1 469-848-0234 United States, Dallas Phone Conference ID: 882 884 828# This meeting will be held in-person and via Microsoft Teams conferencing only. Members of the public are invited to join this meeting by attending the meeting in-person at the address above or using the link above or calling the number above with the conference ID information. You may testify in-person or by video conference during the meeting or submit written testimony in advance of the meeting via e-mail or mail. To avoid excessive noise/feedback, please mute your microphone except to testify. A. CALL TO ORDER B. ROLL CALL C. APPROVAL OF AGENDA D. MINUTES of the meeting of the Open Session 1. July 15, 2022 E. PUBLIC TESTIMONY F. COMMUNICATION PAGE 2 BOARD OF ETHICS – August 12, 2022 G. REQUEST FOR AN ADVISORY OPINION RAO 2022-02 Request for an Advisory Opinion from Chief of Police Todd Raybuck received July 28, 2022, relating to outside employment requests from four Officers to work as Private Security Guards. H. BUSINESS BOE 2022-18 Discussion and possible action on report of 2022 candidate disclosure filings. I. DISCLOSURES Volunteer: 1. Jerry Ornellas, Planning Commission Candidates: 2. Mitchell McPeek, Mayoral Candidate 3. Denis Megeso-William, Mayoral Candidate 4. Addison Bulosan, County Council Candidate 5. Fern Anuenue Holland, County Council Candidate 6. KipuKai Kuali’i, County Council Candidate 7. Rachel Secretario, County Council Candidate 8. Lila Metzger, County Council Candidate 9. Ross Kagawa, County Council Candidate 10. Felicia Cowden, County Council Candidate 11. Luke Evslin, County Council Candidate Employee: 12. Michael Gibson, Fire Chief J. EXECUTIVE SESSION ES-009 Pursuant to Hawai’i Revised Statutes §92-4, §92-5(a)(4), §92- 9(a)(1-4) and (b), the purpose of this Executive Session is for the Board to approve or amend the Executive Session Minutes of July 15, 2022, and to consult with its attorney on issues pertaining to the Board’s powers, duties, privileges, immunities, and /or liabilities as they may relate to this item. ES-002 BOE 2022-01 Pursuant to Hawai‘i Revised Statutes §92-4 and §92-5 (a) and (2) and (4), the purpose of this Executive Session is for discussion and possible action on a notarized formal complaint received February 8, 2021, charging that an employee or officer of the County has breached the Code of Ethics as set forth in the Kaua’i County Charter section 20.02 B, 20.02 E and 20.02 F. No officer or employee of the county shall: PAGE 3 BOARD OF ETHICS – August 12, 2022 B. Disclose information which, by law or practice, is not available to the public and which the officer or employee acquires in the course of the officer or employee’s official duties or use such information for the officer or employee’s personal gain or for the benefit of anyone. E. Use the officer or employee’s official position to secure a special benefit, privilege, or exemption for the officer or employee or others. F. Use county property for other than public activity or purpose. K. RETURN TO OPEN SESSION Ratify on Board actions taken in Executive Session. L. ANNOUNCEMENTS Next Meeting: Friday, September 16, 2022, at 1:00 p.m. M. ADJOURNMENT NOTICE OF EXECUTIVE SESSION Pursuant to Hawaii 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). Discussions held in Executive Session are closed to the public. cc: Aaron Larrimore, Deputy County Attorney in COUNTY OF KAUAI Minutes of Meeting OPEN SESSION . Board/Commission: BOARD OF ETHICS Meeting Date July 15, 2022 Location Boards & Commissions Conf. Room/Teleconference Start of Meeting: 1:01 p.m. End of Meeting: 1:27 p.m. Present Chair Kelly Gentry, Secretary Ryan de la Pena. Members: Susan Burriss, Dean Toyofuku. Also: Deputy County Attorney Aaron Larrimore. Boards & Commissions Office Staff: Administrator Ellen Ching, and Support Clerk Anela Segreti. Excused Vice Chair John Latkiewicz, Rose Ramos-Benzel. Absent SUBJECT DISCUSSION ACTION A. Call To Order B. Roll Call Chair Gentry called the meeting to order at 1:01 p.m. Roll call: Member Burriss: present Member Ramos-Benzel: excused Member Toyofuku: present Secretary de la Pena: present Vice Chair Latkiewicz: excused Chair Gentry: present Four members present, which constituted a quorum. Board of Ethics Page 2 Open Session July 15, 2022 SUBJECT DISCUSSION ACTION C. Approval of Agenda Chair Gentry asked if anyone wanted to testify on this item. Hearing none Chair Gentry entertained a motion to approve. Secretary de la Pena moved to accept the agenda as submitted. Member Burriss seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 D. Approval of Minutes Chair Gentry asked if anyone wanted to testify on this item. Hearing none Chair Gentry entertained a motion to approve. Secretary de la Pena moved to accept the minutes of 6/17/22 as submitted. Member Burriss seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 E. Public Testimony None F. Communication None G. Request for Advisory Opinion None H. Business BOE 2022-18 Discussion and possible action on report of 2022 candidate disclosure filings. Chair Gentry asked if anyone wanted to testify on this item. Hearing none, she asked for the report. Anela Segreti, staff, went over her report on candidate disclosures submitted to the Board as part of the agenda packet and noted that two candidates for mayor and ten candidates for council have not submitted disclosure forms. Board discussed that there is no penalty for not disclosing. Deputy County Attorney Larrimore suggested that a courtesy notice be sent to the Member Burriss moved to have staff send a reminder email to candidates needing to file disclosures. Secretary de la Pena seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 Board of Ethics Page 3 Open Session July 15, 2022 SUBJECT DISCUSSION ACTION candidates to remind them to file their disclosures. Ms. Segreti stated that she could email the candidates with a link to the online disclosure to complete. Chair Gentry entertained a motion to send the candidates a reminder email. Chair Gentry entertained a motion to accept the report. Secretary de la Pena moved to accept the report. Member Burriss seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 I. Disclosures Volunteers: 1. Gerald Matsunaga, Liquor Control Commission 2. Tom Shigemoto, Board of Water Supply 3. Lauren O’Leary, Civil Service Commission 4. John Venardos, Salary Commission Candidates: 5. Michael Roven Poai, Mayoral Candidate 6. Bernard Carvalho, County Council Candidate 7. Rachel Secretario, County Council Candidate 8. Roy Saito, County Council Candidate Chair Gentry asked if anyone wanted to testify on this item. Member Burriss disclosed that she signed the nomination papers of one of the candidates that submitted a disclosure. She did not think about the fact that as a Board Member she is not allowed to campaign for a candidate, and she doesn’t perceive this as campaigning. She feels that if someone wants to run for office that’s fine and it doesn’t mean she is voting for them. She stated that she will recuse herself from the vote for that disclosure. Deputy County Attorney Larrimore stated that the Board needs to decide on that, if she wants an Advisory Opinion if that would be seen as using her position on the Board of Ethics helps someone is a violation. Member Burriss stated that at that point the candidate was not campaigning, and she does Member Burriss moved to approve disclosues 1-6, and 8. Secretary de la Pena seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 Board of Ethics Page 4 Open Session July 15, 2022 SUBJECT DISCUSSION ACTION not feel it was a violation of her duty as a member of the Board. Administrator Ching clarified that if she recuses herself from that candidate it can be deferred. Chair Gentry entertained a motion to approve disclosures #1-#6, and #8. Chair Gentry entertained a motion to defer #7. Secretary de la Pena moved to defer #7. Member Toyofuku seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 J. Executive Session Chair Gentry asked if anyone wanted to testify on any executive session item. Hearing none she asked Administrator Ching to read the Board into Executive Session. ES-008 Pursuant to Hawai’i Revised Statutes §92-4, §92-5(a)(4), §92-9(a)(1-4) and (b), the purpose of this Executive Session is for the Board to approve or amend the Executive Session Minutes of June 17, 2022, and to consult with its attorney on issues pertaining to the Board’s powers, duties, privileges, immunities, and/or liabilities as they may relate to this item. ES-002 BOE 2022-01 Pursuant to Hawai‘i Revised Statutes §92-4 and §92-5 (a) and (2) and (4), the purpose of this Executive Session is for discussion and possible action on a notarized formal complaint received February 8, 2021, charging that an employee or officer of the County has breached the Code of Ethics as set forth in the Kaua’i County Charter section 20.02 B, 20.02 E and 20.02 F. No officer or employee of the county shall: B. Disclose information which, by law or practice, is not available to the public and which the officer or employee acquires in the course of the officer or employee’s official duties or use such information for the officer or employee’s personal gain or for the benefit of anyone. E. Use the officer or employee’s official position to secure a special benefit, privilege, or exemption for the officer or employee or others. F. Use county property for other than public activity or purpose. Member Burriss moved to go into executive session at 1:16 pm. Member Toyofuku seconded. Voice vote: 4 ayes, 0 nays Motion carried 4:0 Board of Ethics Page 5 Open Session July 15, 2022 SUBJECT DISCUSSION ACTION K. Return to Open Session The Board resumed in Open Session at 1:23 p.m. Ratify on Board actions taken in Executive Session. Secretary de la Pena moved to ratify the actions taken by the Board in Executive Session. Member Burriss seconded. Voice Vote: 4 ayes, 0 nays. Motion carried 4:0 L. Announcements Next Meeting: Friday, August 19, 2022, at 1:00pm Administrator Ching reported that there are changes in law that require that testimony being asked before every agenda item. She also shared that “hybrid” meetings will be able to be held. Board corrected date of next meeting to August 12, 2022 due to holiday on August 19, 2022. M. Adjournment Chair Gentry adjourned the meeting at 1:27 p.m. Submitted by: Reviewed and Approved by: Anela Segreti, Administrative Specialist Kelly Gentry, Chair ( ) Approved as circulated. ( ) Approved with amendments. See minutes of ^& ^POLICE DEPARTMENTCOUNTY OF KAUAIDEREK S.K. KAWAKAMI, MAYORMICHAEL A. DAHILIG, MANAGING DIRECTORTODD G. RAYBUCK, CHIEF OF POLICESTAN R. OLSEN. DEPUTY CHIEF OF POLICEJuly 28, 2022Keliy Gentry, Chairand Members of the Board of Ethicsc/o Office of Boards and CommissionsBy Email only: aseRreti(a)kauai.govRE: Request for an Advisory Opinion Regarding Sworn Law Enforcement Officers Working as PrivateSecurity GuardsDear Chair Gentry and Board Members:One of my Assistant Chiefs recently received four requests from officers for outside employment assecurity guards/officers. It appears there may be a conflict of interest in this type of outsideemployment and I would greatly appreciate an advisory opinion from the Board of Ethics on whetherthose concerns are well founded. For reference I have attached the requests for outside employmentsubmitted by the officers.The SHOPO Collective Bargaining Agreement ("CBA") Article 45, Outside Employment, and KPD Policy22.2.4, Outside Employment, address outside employment requests and the types of approved outsideemployment. The CBA allows officers to engage in outside employment as security guards subject to theconditions and limitations created by the employer.MRS §436B, HRS §463, and HAR Title 16, Chapter 97 regulating Private Detectives and Guards requiresfirms providing guard and private detective services to be licensed. A review of three of the fourrequests for outside employment lists the potential employer as Anuhea LLC. State records indicate thatAnuhea LLC is a foreign limited liability company based in California. Its agent in Hawaii is Harvey LCohen, who holds real estate licenses. Neither Cohen or Anuhea LLC appear to hoid licenses for guard orprivate detective services. According to KPD Policy 22.2.4, "[o]fficers may be employed by firms offeringsecurity services"^'as long as the criteria set forth in this policy are met" (Emphasis added). Anuhea LLCand Mr. Cohen do not appear to be authorized under state law to employ security/guards andconsequently do not meet the Department's definition of "firms offering security services."The remaining request for outside employment lists the potential employer as Eagle Eye ProtectiveServices, a firm that is licensed in Hawai'i as a guard agency. The job responsibilities listed on thisrequest for outside employment includes/ "to secure premises/ monitor access to properties/ identifyingand reporting suspicious activities/'Although KPD Policy 22.2.4 authorizes an officer to work as a security officer/guard under certainconditions (22.2.4/402.00) "[i]n accordance with provisions of the union contract", department policyalso requires officers to comply with various rules/ laws/ and the Code of Ethics (22.2.4/100.03).3990 Ka'ana Street, Suite 200 • LThu'e, Hawai'i 96766 • (808)241-1600 (b) • (808) 241 -1604 (f)An Equal Opportunity EmployerRAO 2022-02 MRS § 463-7(a) requires individuals engaged in security officer/guard services to obtain a license fromthe Board to Private Detectives and Security. And Hawaii Administrative Rule 16-97-8(b) provides that:'/[a]n employee or a reserve officer of any law enforcement agency shall not maintain or be eligible forany license issued under chapter 463." That section of the HAR is entitled "Conflict of Interest" andcompliments Article 20 of the County of Kaual Code of Ethics. Under Article 20 of the Charter, Section20.02(E) prohibits any officer or employee of the County from //us[ing] his official position to secure aspecial benefit/ privilege or exemption for himself or others." As discussed more below, having swornofficers act as security guards places those guards in a difficult position of possibly obtaining thosepositions based on their official County employment. Therefore, it appears state law/ Hawai'iAdministrative Rules, and the Charter of the County of Kauai prohibit officers from outside employmentas security officers.Department Policy 22.2.4/100.03 requires officers working in outside emplovment to take proper policeaction on any offense requiring police attention/ which could include criminal trespass, theft, and otherviolations of law. Even so, employees are restricted from outside employment that/ "would require theapplicant to appear in the police uniform; or conduct investiQations or avai! themselves of official policeequipment, records, documents, files or police services, or involve service of civil process/' (Emphasisadded).The performance ofsecurity/guard duties (i.e., securing premises, monitoring access to properties; andidentifying suspicious activities) are highly likely to result in the direct identification of illegal activity(i.e., Criminal Trespass/ Theft/ etc.) resulting in the need to conduct investigations to validate or dispelsuspected illegal activity. The policy requirement to take police action would reasonably require officersto "avail themselves" of police equipment, records, and so on. Whereas/ taking no direct action couid beconstrued as a violation of department policy and/or dereliction of duties as a security/guard.Depending on the advice of this Board, the apparent contradiction in this policy may require revision.Finally, Department Policy 22.2.4/402.00 states employees will "not use their police status/ eitherdirectly or indirectly/ to influence the outcome of any business transaction" (Emphasis added).Department policy does not define "business transaction." However/ Merriam-Webster defines atransaction as/ "an exchange or transfer of goods, services, or funds" and, /'a communicative action oractivity involving two parties or things that reciprocally affect or influence each other." An officerretains "police status" (authority) both on and off duty/ therefore it could be argued that the officercould indirectly or directly influence the outcome of a situation or services (business transaction) whilebeing employed as private security/guard.Despite prior policies of our Department and provisions in the CBA, I am concerned that this type ofoutside employment by officers creates a conflict of interest for the reasons listed above. As theauthority on whether a conflict in fact exists, I would greatly appreciate the assistance of this Board viaan advisory opinion. Thank you in advance for your assistance.Sincerely,TODDG.RAYBUCKChief of PoliceTGR/SH