CITY AND COUNTY OF HONOLULU
Date and Place: October 16, 2008
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Esq., Chair
Susan S. Heitzman, Vice Chair
Matthew H. Kobayashi
Wayne T. Hikida
Patricia Y. Lee, Esq.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
Excused: Geri Marullo
I. CALL TO ORDER
The 417th meeting of the Ethics Commission (Commission or EC) was called to order at 11:46 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
SEPTEMBER 9, 2008 MEETING
The minutes of the open meeting of September 9, 2008 were unanimously approved.
III. OLD BUSINESS
A. Setting the dates and times for the November 7, 2008 and December, 2008 meetings
The EC rescheduled the date and time for the November 7, 2008 meeting for November 13, 2008 at 12:00 a.m. and scheduled the date and time for the December, 2008 meeting for December 17, 2008 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211.
IV. NEW BUSINESS
The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated October 10, 2008 regarding the following agenda items:
A. Administrative news
The EDLC outlined the number of cases pending and the ethics training conducted to date in fiscal year 2008.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the September 9, 2008 meeting
The minutes of the executive meeting of September 9, 2008 were unanimously approved.
The EDLC referred to his confidential memorandum to the EC members dated October 10, 2008.
B. Report regarding a complaint against a Commission staff member
Chair Smith reported that he spoke with the complainant at length by telephone. Chair Smith stated that the complainant will not be attending the October 16, 2008 meeting, but reserved the right to attend the November, 2008 meeting. Chair Smith stated that the complainant agrees with the policy adopted by the Commission that only hypothetical questions should be used in training, and no claim should be made during training that the hypothetical is the same as an actual case.
C. Report and recommendation regarding probable cause to find a violation RCH Sec. 11-104 (misuse of city resources for political activities) by a city employee, EC No. 08-119(w)
The EDLC reported that at the last meeting the Commission did not find probable cause that the city employee had violated RCH Sec. 11-104 under the facts presented. The EC requested staff to draft a memorandum to the city employee that would convey the EC's rationale while also reiterating the seriousness of misusing city resources for non-city related matters.
Upon reviewing the draft memorandum to the city employee, the Commission approved the memorandum as written, and instructed staff to transmit the memorandum to the city employee.
D. Report and recommendation regarding Agreement Regarding Notice of Possible Violation of the Standards of Conduct ( RCH Sec. 11-104: misuse of city position, parking lot and vehicle) by a city employee, EC No. 08-091(w)
The EDLC reported that at the last meeting the Commission found sufficient evidence to find probable cause that the city employee violated RCH Sec. 11-104.
The EDLC presented the Commission with a proposed agreement between the city employee and the EC to resolve the Commission's portion of this case, and a draft advisory opinion in this case.
The EDLC stated that the draft agreement describes in detail the city employee's misconduct and reflects his waiver of certain rights such as having a hearing and having his union agent or attorney review the draft agreement. The draft opinion restates the facts of the agreement.
The EDLC stated that staff contacted the personnel officer for the city employee's department and asked what the likely range of appropriate discipline would be given the facts of this case and the practice of the department in similar matters. The ELDC stated that the personnel officer informed him, that under similar circumstances, the department would normally require 3 to 5 days suspension without pay. The EDLC stated that based on the department's past practice and the facts in this case, staff made the recommendation in the draft opinion.
The EDLC stated that staff recommends that the Commission adopt the draft proposed agreement and the draft advisory opinion.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt the draft proposed agreement and advisory opinion, and instructed staff to transmit the documents to the city employee and the director of the city employee's department for disciplinary action against the city employee as deemed appropriate by the director.
E. Report and recommendation regarding probable cause of a violation of RCH Sec. 11-102(d) (receiving compensation for city work from a non-city source) and RCH Sec. 11-104 (misuse of city position) by two city employees, EC No. 07-005(w)
The EDLC reported that at the last meeting the Commission found probable cause of a violation by two city employees who received witness fees in anticipation of their testifying in a court proceeding related to their employment.
The EDLC stated that the Department of Corporation Counsel ("COR") submitted a memorandum to the Commission describing legal issues COR believes the EC may want to consider in this matter.
After reviewing COR's submission and that of the EDLC and discussing the matter, the Commission found no reason to modify its finding of probable cause of a violation by the two employees.
F. Report and recommendation regarding probable cause of to find violations of RCH Section 11-104 (misuse of city resources for political activity) by certain officers and an employee; EC No. 08-129(w)
Chair Smith recused himself from this matter because of a conflict of interest.
The EDLC stated that this report stems from complaints received by the Commission alleging that certain city officers and employees may have misused their city positions, paid time and other resources in support of campaign activities. The agency where the officers and employee work had a practice that was ethically questionable.
The EDLC stated that the issue in this case is whether there is sufficient evidence to find probable cause that the city officers and employee used her/his city position, paid time or other city resources to support a political campaign activity in violation of RCH Sec. 11-104.
The EDLC stated that, upon concluding its investigation, staff does not believe that there is sufficient evidence to support probable cause that any of the three knew or should have known that the questionable practice amounted to the use of city resources. The practice was intended to be neutral and to further the purposes of the agency.
The EDLC stated, however, that the practice could be subject to abuse because there is no way to ensure that each person receives fair and equal support. Therefore, staff recommends that the practice be discontinued.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation. The Commission instructed staff to draft an advisory opinion stating that the practice be discontinued, but that there is no probable cause to believe an ethics violation occurred.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:40 p.m.