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MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

 

 

Date and Place:      February 28, 2011

                             Standard Financial Plaza

                             Conference Room, Suite 211

 

Present:                 Charles W. Gall, Esq., Chair

                             Rachael Wong, MPH, Commissioner

                             W. Jeffrey Burroughs, Ph.D., Commissioner

                             Stephen Silva, Commissioner

                             Jeffrey S. Portnoy, Esq., Commissioner

                             Michael A. Lilly, Esq., Commissioner

 

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

                             Laurie A. Wong, Associate Legal Counsel (ALC)

 

Stenographer:        Norm Fisher

 

Excused Absence: Geri Marullo, R.N., Dr.PH, Vice Chair

 I.       CALL TO ORDER
           The 439th meeting of the Ethics Commission (Commission or EC) was called to order at 11:36 a.m. by the Chair.

 

II.                APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE

JANUARY 24, 2011 OPEN MEETING

         The minutes of the open session of January 24, 2011 meeting were approved.  Commissioner Portnoy abstained.
III.     OLD BUSINESS

A.      Resetting the date and time for the March 2011 meeting and setting the date and time for the April 2011 meetings

 

         The EC rescheduled the March 25, 2011 meeting to March 21, 2011 at 11:30 a.m., and scheduled the date and time for the April 2011 meeting for April 25, 2011 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211.

B.                For Decision: Commission position on House Bill 468 and Senate Bill 214 to regarding the selection of county ethics commission members


         The EDLC stated that due to
concerns that the members of the ethics commission may not be sufficiently independent from those who select them, identical bills were introduced in the House and Senate that would require each county to change the way that ethics commissioners are selected.

The EDLC stated that the current approach of having the mayor appoint, and the Council confirm ethics commissioners would be substituted with an approach that would have an independent body select a list of potential ethics commission nominees. 

The EDLC stated that he submitted testimony neither supporting nor opposing the bills, but informing the lawmakers that the bills did not solve the concerns of the current selection system.

After further discussing the matter, the Commission moved, seconded, and unanimously carried that it would not take a position on the bills.

IV.     NEW BUSINESS

          The EDLC referred to his memorandum dated February 24, 2011 regarding the following agenda items:

A.               Administrative News

                   Complaints

          The EDLC reported that the EC continues to receive complaints at a high volume.

V.      EXECUTIVE SESSION SUMMARY

A.      Approval of the minutes of the executive session of the January 24, 2011 meeting

          The minutes of the executive session meeting of January 24, 2011 were approved.  Commissioner Portnoy abstained.

*                   *                   *

          The EDLC referred to his memorandum dated February 24, 2011 regarding the following agenda items:

B.      For Decision: Report and recommendation for a formal advisory opinion regarding violation of RCH Sec. 11-103 (failure to disclose conflict of interest) by former city officer

 

          The EDLC directed the attention of the EC to a draft advisory opinion that describes the Commission’s findings, analyses and recommendations regarding a former city officer’s failure to timely file his disclosure of conflict of interest.  The EDLC stated that Chair Gall reviewed the draft, and staff recommends that the draft opinion be adopted by the Commission.

          After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt the draft advisory opinion as written.  Commissioner Portnoy abstained.

  C.      For Decision: Report and recommendation regarding transmitting a charge and notice of hearing to a former city employee for acceptance of a gift in violation of RCH Sec. 11-102.1(a) and ROH Secs. 3-8.7(b) or (c) or, in the alternative, acceptance of compensation from an outside source for doing his/her city work in violation of RCH Sec. 102.1(d), and for misusing his/her city position and city funds in violation of RCH Sec. 11-104

 

          The EDLC stated that in April 2002, a city employee was given approximately $1,300 through the course of his/her duties.  The money was placed in the city employee’s department safe, which the city employee had regular access to.  In February 2004, without informing anyone, the city employee took the $1,300.00 and used it for personal purposes.

          On July 8, 2009, the Commission transmitted a Notice of Possible Violation of the Standards of Conduct (“NOPV”) to the city employee.  On July 23, 2009, the city employee submitted a written statement alleging that it was lawful for him/her to accept and use the money because it was done pursuant to instructions from the donor.  The EDLC stated that the city employee also asked for a hearing before the Commission.   

          The EDLC directed the EC’s attention to a draft Charge and Notice of Formal Hearing against the city employee for violating the gift laws, or, alternatively, for violating the prohibition against accepting outside compensation for doing his/her city work, and for misusing city funds and his/her position for his/her personal benefit for the Commission’s review and approval.

          After discussing the matter, the Commission moved, seconded, and unanimously carried to authorize the EDLC to prepare a complaint against the city employee as the Commission’s Executive Director and Legal Counsel.  As such, the EDLC will be the individual initiating the charge, and thus will have the sole authority to prepare and initiate the Complaint without further review and/or approval from the Commission.

          The staff recommended and the Commission agreed that staff prepare a memo briefing the Commission on whether presentation of a case to the same EC members at the probable cause stage and later at a contested case hearing violates due process.

          D.      For Decision: Report and recommendation for a finding or probable cause that two lobbyists violated ROH Sec. 13-3(a) and 13-6 (lobbying without registering with the Commission)

         

          The ALC reported that a councilmember requested that the Commission investigate the lobbying activities of two lobbyist related to Bill 34, banning consumer fireworks.  The ALC stated that from approximately June through September 2010, the two lobbyists were seen having discussions with councilmembers, going into councilmember offices, and testifying multiple times regarding Bill 34 at Council meetings.  During this entire time neither of the lobbyists were registered lobbyists with the Commission.  As such, the lobbyists violated ROH Secs. 3-13.3(a) and 3-13.6.

          The ALC stated that as a result of the lobbyists’ actions, staff recommends that the Commission move for and find probable cause that the two lobbyists failed to properly register as lobbyists before lobbying the Council, and require staff to issue NOPVs to the two lobbyists.  The ALC directed the Commission’s attention to a copy of the draft NOPVs for its review and approval.

          After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff’s recommendation and authorized staff to issue the NOPVs as written to the two lobbyists.

          E.      For Decision: Report and recommendation for a finding of probable cause that a city employee violated RCH Sec. 11-104 (misuse of city position, email, computer and other city resources)

 

          The ALC reported that the Commission received numerous complaints and has discovered several other probable violations during the investigation of the complaints regarding a city employee.  The ALC stated that in addition to his/her full time employment with the city, the city employee is also involved in many other community activities.

          The ALC stated that in June 2010, Ethics Commission contract attorney, Matthew Viola contacted the city employee regarding two complaints the Commission received alleging that the city employee misused city resources by sending emails related to non-city matters from his/her city email address while on city time.  The city employee admitted using his/her city email for his/her non-city employment activities. 

          The ALC stated that in his August 24, 2010 email Mr. Viola advised the city employee that he/she had violated RCH § 11-104 by using his/her city email for his/her non-city employment activities. He noted that city resources, including his/her city email, may only be used for city purposes within the scope of his/her city employment.      

          The ALC stated that in February 2011, staff discovered that from approximately August 2010 through December 2010 the city employee continued to use his/her city computer and email address hundreds of times for non-city purposes even after Mr. Viola had advised him/her that such conduct was prohibited under the ethics laws.

          The ALC stated that due to the city employee’s actions, staff recommends that the Commission move for and find probable cause that the city employee may have violated RCH Sec. 11-104 as described above.  In addition, the Commission should move for and require that staff issue a NOPV to the city employee consistent with the above-analysis.  The ALC directed the Commission’s attention to a draft NOPV for its review and approval.

            After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff’s recommendation and authorized staff to issue the NOPV as written to the city employee.

VI.     ADJOURNMENT
          The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:50 p.m.

 

 

Last Reviewed: Wednesday, October 19, 2011