CITY AND COUNTY OF HONOLULU
Date and Place: August 18, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan S. Heitzman, Chair
Patricia Y. Lee, Esq.
Charles Gall, Esq.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Ethics Commission Outside Counsel (ECOC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 433rd meeting of the Ethics Commission (Commission or EC) was called to order at 11:42 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
JULY 15, 2010 OPEN MEETING
The minutes of the open session of July 15, 2010 meeting were unanimously approved.
III. OLD BUSINESS
A. Setting the dates and times for the August and September, 2010 meetings
The EC rescheduled the date and time of the September 14, 2010 meeting to September 13, 2010 at 11:30 a.m., and scheduled the date and time for the October, 2010 meeting for October 13, 2010 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 August 11, 2010 regarding the following agenda items:
A. Administrative News
Matt Viola, Ethics Commission Outside Counsel
The EDLC reported that the EC's outside counsel, Matt Viola, will be sworn in as a District Judge to the Hawaii Family Court on August 26, 2010.
New attorney position for the EC
The EDLC reported that the Ethics Commission's attorney position is still pending approval by the Department of Human Resources.
The EDLC reported that the EC's new intern, Eric Irwin, will start on August 19, 2010.
B. For decision: Report and recommendation regarding a procedure for the release and publication of formal advisory opinions
The EC decided to defer this matter until the next meeting.
C. Informational: Report regarding including Whistleblower information on the Commission's web site
The EDLC stated that an integral of the Commission's work is reporting by city officers and employees of possible ethical misconduct. Unfortunately, an officer or employee may be subjected to reprisal or retaliation by coworkers or supervisors for reporting misconduct or cooperating in an investigation. In recognition of this problem, federal and state law prohibit retaliation against any one who in good faith reports or cooperates in an investigation of a violation of law by a government agency such as the Commission. This is called the Whistleblower Law.
The EDLC stated that to help employees understand their rights and, therefore, be more willing to help in investigations, the Commission may want to consider adding to its web site information describing the Whistleblower Law along with links to the appropriate government reporting agencies. The web page could act as a clearing house for employees who want to obtain more information.
The EDLC stated that the EC may obtain more information about the Whistleblower Law at the following web site: http://www.seattle.gov/ethics/wbpub/wbov.htm. The EDLC stated that after it has reviewed the Whistleblower Law, should the Commission like to further examine the idea of including Whistleblower information on the EC web site, please let staff know and staff will present it at a future meeting. The Commission informed staff that it would like to further examine the Whistleblower information.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the July 15, 2010 meeting
The minutes of the executive session meeting of July15, 2010 were unanimously approved.
* * *
The EDLC referred to his memorandum dated August 11, 2010 regarding the following agenda items:
B. For Decision: Report and recommendation regarding probable cause of a violation of RCH Sec. 11-104 (misuse of city resources) by a city officer
The EDLC reported that the Commission received a complaint alleging that a city officer misused city resources by seeking and receiving reimbursement from taxpayer funds for the cost of attending an unofficial event.
The EDLC stated that besides the unofficial expense listed in the complaint, staff reviewed other expenses made by the city officer in FY 2010. The EDLC stated that there were a total of 11 groups of expenses, which appeared unrelated to or insufficiently explained by the city officer to justify reimbursement from the taxpayer fund. The list of items was presented to the city officer to provide an explanation for the charges.
The EDLC stated that in reviewing the city officer's responses, staff believes that the city officer has justified several of the 11 expenses. However, the other expenses have not been sufficiently justified by the city officer. As such, there is sufficient evidence establishing that the city officer spent taxpayer funds on expenses that were not directly related to official issues or his duties as a city officer, in violation of RCH Sec. 11-104. Therefore, the Commission, through a motion, should direct staff to issue him a Notice of Possible Violation of the Standards of Conduct (NOPV) based on the reimbursements he received for the items there were not justified expenses.
After reviewing the information provided by the Commission's staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to instruct staff to draft an NOPV to the city officer as to items 2, 3, 4, 7 and 10 of the 11 groups of expenses that were reimbursed to the city officer from taxpayer funds.
C. For Decision: Report and recommendation regarding probable cause of a violation of RCH Sec. 11-102(a) and RCH Sec. 3-8.8 (prohibited gifts) by a city officer
NOTE: Commissioner Charles Gall recused himself from the discussions on this case.
This case was reported by the EC's outside counsel, Matt Viola (ECOC).
The ECOC reported that the case is now in the probable cause determination phase, where the Commission is being asked to determine whether there is probable cause to believe that a city officer has committed a violation of the city's ethics law.
The ECOC stated that whether there is probable cause to believe that the city officer violated the gift laws is a close call in staff's opinion. The key factual questions are whether the city officer knew that he had received a gift. There is evidence, largely circumstantial, that would support an affirmative answer on both of these questions and that would support a probable cause finding.
The ECOC stated that at the same time, the Commission would also be justified in finding that there is not probable cause to believe that the city officer violated the city's gift laws. The Commission could determine that, despite the circumstantial evidence, it did not believe that the city officer actually knew he had been given a gift. This determination could be based on the Commission's assessment that the inferences from the circumstantial evidence were too weak and/or that the city officer's statements that he did not know he had been given a gift were credible.
After reviewing the information provided by the Commission's staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to defer this issue to the next meeting pending additional information from the staff.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 2:35 p.m.