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Date and Place:            December 1, 2009

                                    Standard Financial Plaza

                                    Conference Room, Suite 211


Present:                        Lex Smith, Esq., Chair

                                    Susan S. Heitzman, Vice Chair

                                    Wayne T. Hikida

                                    Patricia Y. Lee, Esq.

                                    Charles W. Totto, Executive Director and Legal Counsel (EDLC)

                                    Matthew J. Viola, Ethics Commission Outside Counsel (ECOC)


Stenographer:               Norm Fisher


Excused:                       Matthew H. Kobayashi

                                    Geri Marullo



I.          CALL TO ORDER


            The 427TH meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 a.m. by the Chair.





           The minutes of the open meeting of November 3, 2009 were unanimously approved as amended.




A.        Confirming the date and time for the January 6, 2010 meeting and setting the date and time for the February, 2010 meeting


           The EC confirmed the January 6, 2010 meeting, and scheduled the date and time for the February, 2010 meeting for February 3, 2010 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211.




            The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated November 25, 2009 regarding the following agenda items:


            A.        Administrative news


            The EDLC informed the Commission on the number of cases pending and the ethics training conducted to date in fiscal year 2010. 


B.         Legal services for the Ethics Commission


The EDLC stated that at the last meeting, staff described the different options to help meet the Commission’s legal needs.


The EDLC stated that Corporation Counsel (COR) was concerned that the contract for the EC’s outside counsel, Matt Viola, might be questioned because the EC has used only his services since May 2003. 


The EDLC stated that each year COR publishes in the Bar Journal a request for statements of interest from those attorneys and firms that are interested in providing legal services to COR. At staff’s request, for the last two years, COR has included “government ethics” on the list.  So far, only Mr. Viola has applied, making the selection straight forward. 


The EDLC stated that since the last meeting, COR has stated that the contracts the EC has used for Mr. Viola are proper, especially in light of the fact that the EC does seek other lawyers interested in government ethics. This removes that significant concern. 


The EC instructed staff to also consider advertising for legal services at the end of every fiscal year.




                 A.        Approval of the minutes of the executive sessions of the November 3, 2009 meeting

           The minutes of the executive sessions of November 3, 2009 meeting were unanimously approved.


           The EDLC referred to his memorandum dated November 25, 2009 regarding the following agenda items:


           B.         Report and recommendation regarding stipulation to settle possible violations of RCH Section 11-104 (misuse of city resources), RCH Section 11-102(c) (financial conflicts of interest), RCH Section 11-103 (failure to file written disclosure of conflicts of interest), ROH Section 3-8.4 (failure to file complete financial disclosure statements), ROH Section 3-8.2(b) (acquiring a business or financial interest in which the officer may take official action) by a city officer, EC No. 09-042(o)


            The EC deferred this matter to the next meeting.


C.        Report and recommendation regarding complaints of misuse of city
resources for political purposes by city officers, EC No. 08-194(w)


            This matter was reported by Matt Viola, the Ethics Commission Outside Counsel (ECOC).


The EC was presented with a draft advisory opinion in this matter for its review and approval. 


The ECOC stated that staff recommends adoption of the draft opinion for the reasons stated in the case memos presented at the last two meetings.


The ECOC stated that staff’s conclusion is that there is no violation of RCH Section 11-104 because the brochure supporting rail transit did not amount to unlawful partisan advocacy of the ballot measure regarding rail transit.


            Upon reviewing the draft advisory opinion, the Commission moved, seconded, and unanimously carried to accept the advisory opinion (as amended by the EC), and instructed staff to issue the advisory opinion as amended.

D.        Report and recommendation regarding request for advice whether RCH Section 11-104 (city resources to be used only for city projects) prohibits the deputies of the Department of Corporation Counsel from providing pro bono legal services with city resources, EC No. 09-138(w)


            This matter was reported by Matt Viola, the Ethics Commission Outside Counsel (ECOC).


            The ECOC reported that the EC received a request for advice from Carrie K. S. Okinaga, Corporation Counsel, regarding the provision of pro bono legal services by deputy corporation counsels.  Specifically, Ms. Okinaga requested a formal advisory opinion from the Commission as to whether or not the Deputies Corporation Counsel may provide pro bono legal services in our community and, if so, what restrictions there are, if any, on their pro bono services.


            The ECOC stated that in Hawai`i lawyers are not mandated to perform pro bono work, but the Hawai`i Rules of Professional Conduct (HRPC) encourage lawyers to provide free or reduced fee legal services to individuals and organizations in our community whose access to legal services may be limited. The ECOC stated that the aspirational goals of the HRPC present certain challenges for city attorneys, because their status as city employees and concomitant obligations under the ethics laws impose restrictions that non-government lawyers do not typically face in providing pro bono legal services.  Notwithstanding these restrictions, it is possible for city attorneys to provide certain types of pro bono services that are consistent with their obligations under the ethics laws. 


            The ECOC stated that the ability of city attorneys to make these time commitments and to use other resources is constrained by the city’s ethics laws, which prohibit city employees from using city resources for non-city purposes.  However, the EC has recognized an exception to this general prohibition against the use of city resources for non-city purposes.  Under this exception, city attorneys would be permitted to use city resources to provide pro bono legal services to a non-profit or charitable organization or project that the mayor officially designates as an organization or project having a community-wide benefit.   Thus, for instance, were the mayor to officially designate an organization such as Volunteer Legal Services Hawaii (VLSH) as an organization having a community-wide benefit, deputy corporation counsels could staff VLSH’s legal clinic on city time and could use city resources (e.g., telephones, computers, copiers, email) with the approval of the corporation counsel in connection with their pro bono work.


            The ECOC stated that the ethics laws also impose general conflict of interest constraints on city attorneys who want to provide pro bono legal services (e.g., prohibiting them from appearing before city agencies, using confidential information, representing individuals whose interests conflict with the city’s).  These constraints, however, do not apply to pro bono work across the board and can be addressed on a case-by-case basis.


            The EC stated that they will continue to discuss the matter, and instructed staff to inform Corporation Counsel of the issues and to consider safeguards so that the project with a community-wide benefit exception would not be abused.


            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:35 p.m.

Last Reviewed: Monday, November 08, 2010