CITY AND COUNTY OF HONOLULU
Date and Place: February 23, 2004
Standard Financial Plaza
Conference Room, Suite 211
Present: Robin D. Liu, Chair
Lex R. Smith, Vice Chair
Lolinda D. Ramos
Raymond H. Fujii
Robert J. Fishman
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Esq., Staff Attorney
Stenographer: Norm Fisher
I. CALL TO ORDER
The 372nd 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
JANUARY 20, 2004 OPEN MEETING
The minutes of the open meeting of January 20, 2004, were unanimously approved.
III. OLD BUSINESS
A. Setting the date(s) and time(s) of the March and April meetings
The EC scheduled the meetings for March 22, 2004, at 11:30 a.m., and April 20, 2004 at 11:30 a.m. 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 report on opinions, and the Commission’s website in his memorandum of February 17, 2004.
David Arakawa of Corporation Counsel (COR) attended the meeting and introduced Don Kitaoka, deputy Corporation Counsel, who will be in charge of matters presented to the EC by COR. Greg Swartz will continue to be available for advice should the EC request it.
It was moved, seconded, and unanimously carried to move into executive session to pursue confidential matters and seek the advice of its attorney.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the January 20, 2004 meeting
The minutes of the executive session of January 20, 2004 were unanimously approved.
B. Report regarding a request for advice whether a city officer may claim a door prize, the value of which is over $200, under RCH Sec. 11-102(a) and ROH Sec. 3-8.8(b) (gift cap), EC No. 03-252(o)
At the last meeting, the Commission voted to inform the city officer that, despite the opinion rendered by Corporation Counsel that the gift would not violate the gift cap law, the acceptance of the door prize would at least raise an appearance of a conflict of interest or impropriety. Therefore, the gift should not be accepted.
However, concerns were raised regarding the decision. Upon discussing the matter further, the EC confirmed its decision to recommend that the city officer not accept the door prize.
Due to the possibility of a conflict of interest, Chair Liu and Vice-Chair Smith recused themselves from the discussions on this matter.C. Report regarding request for advice whether department officers, acting on behalf of a private non-profit association, may solicit contributions from vendors with whom the department contracts for the purposes of a conference without violating RCH Sec. 11-102(a) and ROH Sec. 3-8.7(b) (soliciting or accepting gifts) and RCH Sec. 11-104 (fair and equal treatment policy), EC No. 03-210 (o)
Recently a non-profit organization held its annual conference at a Waikiki hotel. In order to defray the costs of the hotel conference rooms and other conference expenses, the department mailed a written request from a department officer to various businesses seeking monetary donations to support the conference. The solicitation letter is on department head stationery and requests that the solicited businesses and individuals become conference sponsors at levels of contribution ranging from $250 to over $2500. The department received about $15,000 in money and in-kind services from 26 donors. Pursuant to the department officer, at least half of the contributors are past, current or likely future vendors to the department. Vendors were also allowed to set up exhibits and were charged for the space by the hotel.
The question presented is whether a city officer with significant discretionary authority to affect the interests of donors, who is acting in his private capacity as an officer of a non-profit organization, may solicit donations from past, present or future vendors to his city department.
The EDLC stated although there are no city cases right on point, the Hawaii State Ethics Commission (HSEC) has decided a very similar matter under its gift statute, which is virtually identical to the applicable city law. The state advisory opinion is consistent with the cases in which this Commission has permitted city officers to raise funds for private, nonprofit groups, as long as certain conditions are followed. The EDLC stated that the city officer and the non-profit association appear to comply with the safeguards employed by past state and city advisory opinions.
The EDLC recommended that the EC determine whether the safeguards employed by the city department are sufficient to remove a reasonable inference that the gifts were made to reward or influence the city officer in discharging his official duties. The EDLC also suggested that the non-profit association add to its solicitation a disclaimer stating that a contribution, or lack thereof, will not be taken into account should vendors offer services or products to the city department.
After discussing all the issues it was moved, seconded, and unanimously carried to accept the recommendations of the EDLC.
D. Report regarding a third-party request for advice whether a city officer has appeared before a city agency on behalf of private interests in violation of RCH Sec. 11-102(e), misused city funds in violation of RCH Sec. 11-104 (fair and equal treatment policy) and failed to fully disclose the officer’s financial information in violation of ROH 3-8.4(c), EC No. 03-100 (w)
The EDLC reported that the EC received a third-party request for advice asking whether a city officer is in violation of the city ethics laws, specifically, RCH Secs. 11-104 or 11-102(e) and ROH Sec. 3-8.2(c), by acting as a “permit expediter” for private interests before a city agency.
The EDLC stated that upon completing his investigation, regarding the allegations that the city officer used his city position to obtain special treatment for his clients in violation of RCH Sec. 11-104, he recommends that the EC find that there is insufficient evidence to show a violation.
The EDLC stated that there is no dispute that the city officer violated RCH Sec. 11-102(e) and ROH Sec. 3-8.2(c) by representing his clients before the city agency, and thereby recommends that the EC determine that the city officer violated RCH Sec. 11-102(e) and ROH Sec. 3-8.2(c).
It was moved, seconded, and unanimously carried to inform the city officer that his actions violated RCH Sec. 11-102(e) and ROH Sec. 3-9.2(c), and that the EC strongly urges the city officer not to repeat the violations by continuing to represent clients before city agencies.
It was moved, seconded, and unanimously carried to return to the open session.
The meeting was adjourned at 1:02 p.m.