HomeMy WebLinkAboutBOE_2022_0916_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, 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 MEETING NOTICE AND AGENDA
Friday, September 16, 2022
1:00 p.m. or shortly thereafter
Līhu`e Civic Center
Pi`ikoi Building, Suite 300
4444 Rice Street, Līhu`e, HI 96766
A. CALL TO ORDER
B. ROLL CALL
C. APPROVAL OF AGENDA
D. MINUTES of the meeting of the Open Session
1. August 12, 2022
E. PUBLIC TESTIMONY
F. COMMUNICATION
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 2022-19 Update on Candidate disclosure filings.
I. DISCLOSURES
Volunteer:
1. Jerry Ornellas, Planning Commission
2. Mai Shintani, Public Access, Open Spaces and Natural
Preservation Fund Commission
3. Shelley Konishi, Civil Service Commission
Candidates:
4. Shirley Simbre-Medeiros, County Council Candidate
PAGE 2
BOARD OF ETHICS – September 16, 2022
J. EXECUTIVE SESSION
ES-010 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
August 12, 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-011 RAO 2022-02 Pursuant to Hawai’i Revised Statutes §92-4, §92-5 (a) (4), the
purpose of this Executive Session is for the Board to consult with
its attorney on questions and issues pertaining to the Board’s
powers, duties, privileges, immunities, and /or liabilities as they
may relate to RAO 2022-02.
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.
K. RETURN TO OPEN SESSION
Ratify on Board actions taken in Executive Session.
L. ANNOUNCEMENTS
Next Meeting: Friday, October 21, 2022, at 1:00 p.m.
M. ADJOURNMENT
PAGE 3
BOARD OF ETHICS – September 16, 2022
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
COUNTY OF KAUAI
Minutes of Meeting
OPEN SESSION
.
Board/Commission: BOARD OF ETHICS Meeting Date August 12, 2022
Location Boards & Commissions Conf. Room/Teleconference Start of Meeting: 1:02 p.m. End of Meeting: 2:13 p.m.
Present Chair Kelly Gentry, Vice Chair John Latkiewicz, Secretary Ryan de la Pena. Members: Susan Burriss, Rose Ramos-Benzel, Dean
Toyofuku (joined at 1:10pm). Also: Deputy County Attorney Aaron Larrimore. Boards & Commissions Office Staff: Administrator
Ellen Ching, and Support Clerk Anela Segreti. Testifier: Todd Raybuck, Chief of Police
Excused
Absent
SUBJECT DISCUSSION
ACTION A. Call To Order
B. Roll Call
Vice Chair Latkiewicz chaired the meeting for Chair Gentry who was present.
Vice Chair Latkiewicz called the
meeting to order at 1:02 p.m.
Roll call:
Member Burriss: present
Member Ramos-Benzel: present
Member Toyofuku: tardy
Secretary de la Pena: present
Vice Chair Latkiewicz: present
Chair Gentry: present
Five members present, which
constituted a quorum.
Board of Ethics Page 2
Open Session
August 12, 2022
SUBJECT DISCUSSION
ACTION
C. Approval of
Agenda
Vice Chair Latkiewicz asked if anyone wanted to testify on this item. Hearing none Vice
Chair Latkiewicz entertained a motion to approve.
Secretary de la Pena moved to accept
the agenda as submitted. Member
Ramos-Benzel seconded.
Voice vote: 5 ayes, 0 nays
Motion carried 5:0
D. Approval of
Minutes
Vice Chair Latkiewicz asked if anyone wanted to testify on this item. Hearing none Vice
Chair Latkiewicz entertained a motion to approve.
Member Burriss moved to accept the
minutes of 7/15/22 as submitted.
Secretary de la Pena seconded.
Voice vote: 5 ayes, 0 nays
Motion carried 5:0
E. Public
Testimony
None
F. Communication None
G. Request for
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.
Administrator Ching asked if anyone wanted to testify on this agenda item, hearing none
she noted that no one stepped forward.
Chief Todd Raybuck went over his presentation (on-file) regarding his concerns and
issues to review and provide an opinion on. He reviewed that he received four outside
employment requests from police officers to work as private security guards. He found
no record of previous practice where KPD has authorized individuals to work in outside
employment as security. He addressed that both the collective bargaining agreement and
department policy does allow it, but it must follow the law, the policy and the code of
ethics. He went over the specifics and other documents that he provided for the board to
review. He pointed out Chapter 463-7 that covers private detectives and guards states
that a license is required. He then noted that HAR Title 16 Chapter 37,page 97-4 under
Board of Ethics Page 3
Open Session
August 12, 2022
SUBJECT DISCUSSION
ACTION
subsection 1697-2 describing a guard, and under page 97-9, section 1697-8, conflict of
interest. He is requesting whether KPD sworn officers should be approved as private
security guards, his interpretation is that they are not permitted based on that they cannot
obtain a license.
Member Burriss asked if there had been any officer approved before.
Chief Raybuck answered that he could not find an official record of an approval for
outside work as a security guard. He added that he had heard anecdotally that some
officers years back may have engaged in that activity.
Administrator Ching informed the Board that if they had any legal questions they wanted
to ask they could do so in executive session.
Vice Chair Latkiewicz called for a motion.
Deputy County Attorney Larrimore expressed to the board that they may want to discuss
in executive session ramifications of any decision based on the collective bargaining
agreement.
Member Burriss asked Chief Raybuck if he expected to have any “blow out” regarding
his decision to deny the request.
Chief Raybuck answered that the collective bargaining agreement does allow for this, but
it and the policy does say that it complies with the rules and laws. So should the
commission determine that there is a conflict of interest that would prohibit him from
approving the outside employment. He went on to say that they do have a grievance
process that would go to the Police Commission. He also stated that he checked with his
counterparts across the state and the Chiefs of Honolulu and Hawaii County Police
Departments do not allow their employees outside employment as security guards.
Secretary de la Pena asked if the board should meet with the Deputy County Attorney in
executive session and if they can carry the motion into the executive session.
Deputy County Attorney Larrimore suggested that the motion be withdrawn if the board
Member Burriss moved to deny the
requests for security employment.
Chair Gentry seconded.
Member Burriss withdrew her
motion. Chair Gentry withdrew her
second.
Board of Ethics Page 4
Open Session
August 12, 2022
SUBJECT DISCUSSION
ACTION
wants to move into executive session.
Board moved into executive session at 1:17pm.
Board resumed in open session at 1:45pm.
Vice Chair Latkiwicz called for a motion.
Administrator Ching asked Chief Raybuck if he would allow the board extra time.
Chief Raybuck affirmed and stated he was not expecting a decision today.
Member Burriss moved to go into
executive session to consult with
counsel on agenda item RAO 2022-
02. Secretary de la Pena seconded.
Motion passed 6:0
Member Burriss moved to defer
RAO 2022-02 pending board further
looking into the circumstances.
Secretary de la Pena seconded.
Motion passed 6:0
H. Business BOE 2022-18 Discussion and possible action on report of 2022 candidate disclosure
filings.
Vice Chair Latkiewicz asked if anyone wanted to testify on this item. Hearing none, he
asked for an update from Anels Segreti, staff.
Anela Segreti, staff, updated the Board on candidate disclosures. She reported that all
candidates have filed except two candidates for County Council, Jakki Nelson and Jeffrey
Lindner.
Board discussed sending a second email to the two candidates and noted that the primary
election is on Saturday and the candidates may not advance to the General election.
Administrator Ching noted that the response was an improvement over the last election.
Member Burriss moved to have staff
send a second email to the candidates
still needing to file disclosures.
Secretary de la Pena seconded.
Motion passed 6:0
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
Board of Ethics Page 5
Open Session
August 12, 2022
SUBJECT DISCUSSION
ACTION
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
Vice Chair Latkiewicz asked if anyone wanted to testify on this item. Hearing none he
moved forward with the twelve disclosures.
Members discussed disclosures and determined that disclosure #1 did not have source of
income and should be returned.
Member Burriss recused herself from Disclosure #7.
Vice Chair Latkiewicz entertained a motion to approve disclosures #2-#6, and #8-12.
Vice Chair Latkiewicz entertained a motion to approve disclosure #7.
Vice Chair Latkiewicz entertained a motion to return disclosure #1 for source of income.
Secretary de la Pena moved to
approve disclosures #2-#6 and #8-
#12. Member Toyofuku seconded.
Motion passed 6:0
Secretary de la Pena moved to
approve disclosure #7. Member
Toyofuku seconded.
Motion passed 5:1(recused)
Member Burriss moved to return
disclosure #1 for source of income
and have staff send letter. Chair
Gentry seconded.
Motion passed 6:0
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:
Board of Ethics Page 6
Open Session
August 12, 2022
SUBJECT DISCUSSION
ACTION
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.
Secretary de la Pena moved to
go into executive session at
1:59 pm. Member Toyofuku
seconded.
Motion passed 6:0
K. Return to
Open Session
The Board resumed in Open
Session at 2:13 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 Toyofuku seconded.
Motion passed 6:0
L. Announcements Next Meeting: Friday, September 16, 2022, at 1:00pm
M. Adjournment Member Toyofuku moved to adjourn
the meeting. Secretary de la Pena
seconded.
Motion passed 6:0
Vice Chair Latkiewicz adjourned the
meeting at 2:13 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