CITY AND COUNTY OF HONOLULU
Date and Place: August 22, 2006
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex R. Smith
Raymond H. Fujii
Susan S. Heitzman
Wayne T. Hikida
Cynthia M. Bond
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
Also Present: Wynde Yamamoto, Administrative Deputy Corporation Counsel (COR), Joe Lum, COR Administrative Services Officer, and Wendy Tanaka, Budget Analyst, Department of Budget and Fiscal Services only for Agenda Item V.C.
I. CALL TO ORDER
The 398th meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE MAY 16, 2006 OPEN MEETING
The minutes of the open meeting of July 11, 2006, were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time of the September 19, 2006 meeting and setting the date and time for the October, 2006 meeting
The EC reset the time for the September 19, 2006 meeting from 11:30 a.m. to 10:00 a.m., and set the October 17, 2006 at 11:30 a.m. meeting in the Standard Financial Plaza Conference Room, Suite 211.
IV. NEW BUSINESS
A. Administrative news
The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated August 17, 2006, outlining the ethics training conducted to date in fiscal years 2006 and 2007.
The EDLC handed out a packet of graphs and charts outlining staff's workload and Commission statistics. The EDLC reported that, in part, as a result of the increased amount of complaints received by the EC over the past few years, the EC would require more resources to be able to efficiently and promptly investigate and resolve these complaints.
After discussion, the EC instructed the EDLC to provide the EC with an estimate of the complaint resolution time.
B. Proposed FY08 Budget
The EDLC directed the EC's attention to a copy of staff's proposed budget memorandum for the Commission for the period July 1, 2007 through June 30, 2008 (fiscal year 08). The EDLC stated that in summary, the budget memorandum requests an increase of $72,752 in the current expense budget, not including the EC's proposed adjustment to the EDLC's salary.
The EDLC reported that there are several reasons why the Commission needs additional funding. First, the Commission is currently unable to prepare and hold a contested case hearing while also managing its other work. This inability will result in either the Commission failing at its compliance and enforcement role or failing to ensure due process for city officers and employees accused of ethics violations. Second, the Commission experienced a 75% growth in the number of complaints filed in FY06, as well as increasing complexity of the complaints. Third, the Commission is obligated to begin ethics retraining for city decision makers, which will reduce the amount of time the EDLC can spend on casework. Fourth, recent changes in the Commission's jurisdiction (e.g., lobbying) and other anticipated law changes will add significant new duties to the Commission's role. Finally, the Commission has set proactive goals and objectives to accomplish its mission. All of these factors have dramatically increased the Commission's workload to the point where it outstrips the resources of its two full time employees and its outside attorney's contract services.
After discussion, the EC moved, seconded and unanimously carried to approve the proposed budget increase as recommended by staff. The EC also instructed staff to schedule a meeting between commissioners representing the EC and the Director of the Department of Budget and Fiscal Service to discuss the Commission's budget request.
The EC moved, seconded, and unanimously carried to go to the executive session.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the July 11, 2006 meeting
The minutes of the executive session of July 11, 2006 were approved. Chair Smith excused himself from the meeting only for the approval of the executive session minutes.
B. Report regarding litigation where discovery has been sought from the Commission
The EDLC reported that a former city employee filed a complaint with the Commission alleging, among other things, that a city supervisor violated the ethics laws by hiring a city employee who he supervised to work for the supervisor's family business. The former city employee also filed a civil suit in federal court claiming that the city supervisor and other city personnel retaliated against him for filing the complaint with the EC. The federal case is scheduled to go to trial this fall.
The EDLC stated that the former employee's attorney requested via discovery all Commission records regarding our investigation of this and all other matters involving these parties. The EDLC stated that thus far he has had his deposition taken for a day and is scheduled for another.
The EDLC stated that he objected in the deposition and argued to the federal court that the Commission's investigative records are protected from discovery by: (1) ROH Sec. 3-6.3(g) prohibiting disclosure of information by Commission members and staff, (2) attorney work product protection (the observations and evaluations of an attorney may not be discovered without a showing of substantial need), (3) the attorney client privilege, and (4) the deliberative process privilege (evaluations presented to the Commission members and their discussions may not be disclosed). The EDLC expects a decision from the federal court very soon. Once the court issues a ruling, he will be able to assess the impact on current and future Commission cases.
C. Salary issue
Commissioners Bond and Fujii met with the Director of the Department of Budget and Fiscal Services and Councilmembers Kobayashi and Dela Cruz and explained the increase in the EDLC's FY07 salary.
Wynde Yamamoto, Administrative Deputy, COR, stated that COR will start the necessary paper work to implement the EDLC's FY07 pay raise.
The Commission discussed the salary amount for the EDLC that should be requested for FY08. Based on the discussions in recent Commission meetings, the need to bring the EDLC's salary closer to salaries of excluded managers (range 7) and the EDLC's work product and responsibilities, Commissioner Bond suggested a salary of $90,000 beginning July 1, 2007.
The EC moved, seconded and unanimously approved that the EDLC's salary be $90,000 annually beginning July 1, 2007.
The EC moved, seconded, and unanimously carried to return to the open session.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:08 p.m.