CITY AND COUNTY OF HONOLULU
Date and Place: December 20, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan Heitzman, Chair
Geri Marullo, R.N., Dr.PH, Vice Chair
Patricia Y. Lee, Esq., Commissioner
Charles W. Gall, Esq., Commissioner
Rachael Wong, MPH, Commissioner
Stephen Silva, Commissioner
W. Jeffrey Burroughs, Ph.D., Commissioner
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Laurie A. Wong, Associated Legal Counsel (ALC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 437th meeting of the Ethics Commission (Commission or EC) was called to order at 11:45 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
NOVEMBER 22, 2010 OPEN MEETING
The minutes of the open session of November 22, 2010 meeting were unanimously approved, as amended.
III. OLD BUSINESS
A. Setting the dates and times for the January and February, 2011 meetings
The EC confirmed the January 24, 2011 meeting at 11:30 a.m., and scheduled the date and time for the February, 2011 for February 21, 2011 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 December 13, 2010 regarding the following agenda items:
A. Administrative News
Ethics Commission minutes format
The EC requested that the minutes be "gender neutral" in any minutes were there is a need to maintain the confidentiality of identity.
The EC requested that staff prepare a "pie chart" that indicates the types of complaints investigated.
B. Informational: Report on the COGEL Conference
The EDLC reported that the COGEL Conference he attended in Washington, D.C. from December 5-8, 2010, was one of the best COGEL Conference that he attended.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the November 22, 2010 meeting
The minutes of the executive session meeting of November 22, 2010 were approved, as amended.
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The EDLC referred to his memorandum dated December 13, 2010 regarding the following agenda items:
B. For Decision: Report and recommendation regarding violation of RCH Sec. 11-103 (failure to disclose conflict of interest before voting) by a city officer
The EDLC reported that at the last meeting, a councilmember discussed two issues with the Commission in response to his/her Notice of Possible Violation of the Standards of Conduct. The first issue was whether RCH Sec. 11-103 requires a councilmember to file the conflict of interest disclosure when he or she becomes aware of the possible conflict or only before the councilmember first votes on the measure. The second point was the impact of the Commission's decision on timing issue on the practice of the Council.
The EDLC stated that the councilmember believed that the disclosure law is confusing because, on the one hand, disclosure is required for each city officer and employee when the conflict "becomes apparent," but, on the other hand, a councilmember's disclosure must be made public before a vote on the measure. The EDLC stated that if the councilmember had a question about the meaning of RCH Sec. 11-103, he/she could have contacted the Commission for advice. However, the councilmember did not contact staff about the issue until after he/she was made aware of the complaint.
The EDLC stated that the councilmember admitted that he/she failed to timely file his/her disclosure in this matter. The EDLC stated that the fact that the councilmember did not file his/her conflict disclosure until after he voted on the bill raises a question about whether he/she had much concern for the consequences of not properly disclosing the conflict. As a member of the legislative branch of city government, he/she had a responsibility to the public, his/her constituents and the other councilmembers to ensure he/she performed his/her duties with the highest ethical standards.
The EDLC stated that staff recommends that that the Commission issue a formal advisory opinion, and impose a civil fine on the councilmember between $100 and $500. The advisory opinion will be to all councilmembers, which reaffirms and clarifies the Commission's previous opinion that the disclosure must be made when the conflict becomes apparent. The councilmember would be given notice 10 days before the opinion is made public.
After reviewing the information provided by the Commission's staff and discussing the matter, the Commission moved, seconded, and unanimously carried to assess the councilmember a fine of $500, identify him/her in the public advisory opinion, combine all the components of this matter in one advisory opinion, and provide a copy of the advisory opinion to the Honolulu City Council.
The Commission also moved, seconded, and unanimously carried to adopt a policy of automatically sending copies of any formal advisory opinions that would relate to councilmember ethical issues to each councilmember.
C. For Decision: Report and recommendation regarding possible violations by a former city officer for violations of RCH Sec. 11-102(c) (conflict of interest between city duties and private business activity); RCH Sec. 11-104 (use of city time for personal benefit), RCH Sec. 11-104 (special treatment benefiting an employee and his private company); and RCH Sec. 11-104 (permitting an employee to misuse city property)
The EDLC stated that he requests that the Commission allow staff to close this case against a former city officer, except in one area that needs additional investigation. Staff will continue to investigate whether some city employees received outside compensation. Staff believes the case against the former city officer should be discontinued because of the significant change in circumstances between the time of the probable cause decision and now.
The EDLC stated that witnesses now corroborate the former city officer's statements that, although she/he worked on private matters during city work time, she/he more than made up for the lost time and there was no harm to the city. Also, some charges have been shown to have no basis in fact or will be very difficult to prove. Others are relatively minor and may be corrected by management controls.
After discussing the matter, the Commission moved, seconded, and unanimously carried to allow staff to close the case against the former city officer except in the one area that needs additional investigation.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:30 p.m.