CITY AND COUNTY OF HONOLULU
Date and Place: November 13, 2008
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Esq., Chair, except for item V-C
Matthew H. Kobayashi
Wayne T. Hikida
Patricia Y. Lee, Esq.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
Excused: Susan S. Heitzman, Vice Chair
I. CALL TO ORDER
The 418th meeting of the Ethics Commission (Commission or EC) was called to order at 11:44 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
OCTOBER 16, 2008 MEETING
The minutes of the open meeting of October 16, 2008 were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time for the December 17, 2008 meeting at 11:30 a.m. and setting the date and time for the January, 2008 meeting
The EC confirmed the date and time for the December 17, 2008 meeting at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211 and scheduled the date and time for the January, 2009 meeting for January 8, 2009 at 11:30 a.m.
IV. NEW BUSINESS
The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated November 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.
The EDLC stated that the Commission received 46 complaints this year, and that the Commission website received 1/3 more hits this year than last year.
B. Updating the Guidelines on Campaign Activities
The EDLC reported that once the pending political activity cases are resolved, staff will present proposed changes. This will permit the Commission to review possible changes as a group rather than on a piecemeal basis.
C. Report regarding Council Resolution 08-232, regarding conflicts of interest
The EDLC reported that this resolution would require an amendment to the Charter in 2010 mandating any councilmember who has a "direct financial conflict of interest" to recuse themselves from participating in the discussion or vote on the matter creating the conflict.
The EDLC stated that he offered oral testimony in general support of the intent of the measure to the Executive Matters Committee on October 29, 2008, and suggested that the Council consider redrafting the resolution so that councilmembers and other city officials would have the same standard for disclosure and recusal. The ELDC stated that the committee will consider options in 2009.
D. Report regarding the redrafting of certain ordinances and sections of the Commission's Rules of Procedure
The EDLC reported that he and Matt Viola are in the process of redrafting certain procedural ordinances and Commission rules. The intent is to create a system of laws that will better reflect how the Commission procedures should work.
The EDLC stated that this project will likely take several months, especially if the complaint work load remains high.
E. Report regarding Charter amendments on 2008 ballot
The EDLC reported that both Charter amendments supported by the Commission – (1) impeachment cases handled in circuit court and (2) authority for Commission to impose civil fines on those with significant discretionary or fiscal authority – passed by wide margins.
F. Report and recommendation regarding bill to authorize the Commission to impose civil fines on certain city officers and employees
The EDLC presented the Commission with an attorney-client privileged memorandum which discussed the legal issues and staff recommendation on this matter.
Upon reviewing the memorandum, the Commission moved, seconded, and unanimously carried to accept the draft proposed legislation, and that draft be sent to Corporation Counsel for further review.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the October 16, 2008 meeting
The minutes of the executive meeting of October 16, 2008 were unanimously approved.
The EDLC referred to his confidential memorandum to the EC members dated November 10, 2008.
B. Report regarding a complaint against a Commission staff member
The Complainant attended the meeting, presented her views and concerns, and answered questions from the Commissioners. Chair Smith will write a letter to the Complainant on behalf of the Commission, acknowledging her concerns.
C. Report and recommendation regarding possible violation RCH Sec. 11-104 (misuse of city resources for political activities) by a city officer, EC No. 08-083(o)
The EDLC reported that while attempting to reach a city officer's city web site, the user was linked to a web site that contained political campaign material, including solicitations for votes and information related to why the officer would be the candidate of choice.
The EDLC stated that after the Commission found probable cause of a violation, a Notice of Possible Violation of the Standards of Conduct (Notice) was transmitted to the city officer, who responded.
The EDLC stated that the city officer does not take issue with the allegations in the Notice, and his/her staff immediately removed the questionable material from the web site. The city officer explained the misconduct by noting that he/she is unfamiliar with computers and, therefore, relied on his staff and Department of Information Technology (DIT) personnel to set up the web site.
The EDLC stated that there seems to be no evidence that linking the political web site to the city web site was intended to circumvent the ethics laws. Also, the city officer and his/her staff, once notified, promptly took corrective action, and were forthcoming and cooperative in the investigation.
The EDLC stated that staff recommends that an advisory opinion be issued to the city officer that describes the facts and analysis in the case, concluding that there was a violation of RCH Sec. 11-104. However, staff does not believe that the case warrants a recommendation of discipline because the violation appears unintentional and the city officer and his/her staff understand the misconduct.
Upon discussing the matter, Commission moved, seconded, and unanimously carried to adopt staff's recommendation, and instructed staff to draft a proposed advisory opinion in this matter for the Commission's review and approval.
D. Report regarding case status as to a possible 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 the two city employees decided to wait until they received the Notice of Possible Violation of the Standards of Conduct before submitting their responses. The Notices were mailed on November 3, 2008.
E. 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 a city employee; EC No. 08-129(w)
Chair Smith has recused himself from this matter because of a conflict of interest.
The EDLC stated that at the last meeting, the Commission requested that staff draft a proposed advisory opinion for the Commission review and approval. The EDLC presented the Commission with a proposed draft advisory opinion in this matter.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt the draft proposed advisory opinion as written.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:40 p.m.