CITY AND COUNTY OF HONOLULU
Date and Place: January 24, 2006
Standard Financial Plaza
Conference Room, Suite 211
Present: Raymond H. Fujii
Susan S. Heitzman
Matthew H. Kobayashi
Wayne T. Hikida
Cynthia M. Bond
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Outside Counsel
Stenographer: Norm Fisher
I. CALL TO ORDER
The 392nd meeting of the Ethics Commission (Commission or EC) was called to order at 11:35 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
DECEMBER 13, 2005 OPEN MEETING
The minutes of the open meeting of December 13, 2005, were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time of the February 21, 2006 meeting and setting the date and time for the March, 2006 meeting
The EC rescheduled the February 21, 2006 at 11:30 a.m. to February 16, 2006 and set the date and time for the March 14, 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 January 20, 2006, outlining the ethics training conducted to date in fiscal year 2006. The EC approved that the staff should continue to forward electronically all EC meeting correspondence to the Commissioners.
B. Report on proposed Charter amendments regarding ethics matters
The EDLC reported that the Charter Commission (CHC) heard 10 ethics proposals on January 10, 2006. The EDLC stated that 5 ethics proposals remain, including 3 of the 4 submitted by the Commission. The EDLC stated that proposals that passed will go forward to public outreach sessions while those that were held are dead, and that a proposal will need to pass another vote of the CHC before being placed on the ballot this fall. The EDLC stated that there is a good possibility that the 5 remaining proposals will be placed on the fall ballot.
The EDLC stated that the Commission may want to take an active part in educating the public, or supporting or opposing some or all of the proposed amendments, and that he plans to request an opinion from COR as to whether the Commission, its members or its staff may use City resources to actively promote or oppose ballot questions.
C. Election of officers
The Commissioners moved this topic to the February 16, 2006 meeting.
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 December 13, 2005 meeting
The minutes of the executive session of December 13, 2005 were unanimously approved, as amended.
B. Report and recommendation regarding the publication of Advisory Opinion No. 2005-5; EC No. 02-037(w)
The EDLC reported that this case involved a manager of a city department who secured an unwarranted advantage for certain employees by implementing, without authorization, an overtime incentive plan intended to improve employee morale and operating efficiency at the city department which resulted in Advisory Opinion No. 2005-5. The EDLC stated that the issue at hand for the Commission is whether the public version of the advisory opinion should identify manager by name.
The EDLC stated that Section 3-6.3(h), Revised Ordinances of Honolulu (ROH), permits the EC to disclose the identity of an officer or employee who has violated the ethics laws as long as the disclosure would be consistent with the state Uniform Information Practices Act (UIPA). The EDLC stated that the Hawaii State Office of Information Practices (OIP) has informally advised staff that, under certain circumstances, the EC may make public through an advisory opinion the identity of one who violates the ethics laws, and that the UIPA requires all government records to be made available to the public, with certain exceptions. One exception is that the government need not disclose a record where disclosure of the records would constitute a clearly unwarranted invasion of personal privacy.
The EDLC stated that OIP recommends that, if the EC finds a city employee has violated the ethics laws, a balancing test should be applied before the employee's identity may be revealed in an opinion. The EDLC stated that the EC should balance the employee's reasonable expectation of privacy in his or her work related misconduct against the public's right to know whether (1) public employees are conducting themselves within the law and (2) the Commission is carrying out its duty to investigate and enforce the ethics laws.
The EDLC stated that although it is reasonable for a city officer or employee to believe that the conduct reflected in his/her personnel record is private, that expectation is negated by a serious violation of the standards of conduct. The EDLC stated that in determining the weight of the public interest in the disclosure of the identity of an employee, courts have looked at factors including: (1) the rank and level of responsibility of the employee, (2) whether there is a finding of serious misconduct against the employee and (3) whether the government's investigation was thorough and comprehensive.
The EDLC stated that, regarding rank and responsibilities, the manager was responsible for all the facility's operations. The EDLC stated that the manager was responsible for determining whether his employees met overtime requirements and for submitting overtime into the city payroll system. The EDLC stated that the manager's position gave him the opportunity to manipulate overtime for employees without supervision, and that the manager acted beyond his authority to create an incentive plan and failed to inform his supervisors of his plan until, as a result of a complaint to the EC, his supervisor questioned him. The EDLC stated that the manager's misconduct was severe as reflected by the Commission's recommendation of a 5-10 day suspension without pay, and that the EC's investigation and analysis included an in-depth review of overtime records for truck drivers and equipment operators, as well as interviewing several witnesses.
The EDLC stated that the purpose of the ethics laws is to foster the highest standards of conduct in government employees, so that the public may justifiably have trust and confidence in the integrity of government. The EDLC stated that the public is unlikely to trust government if it does not know that government can remedy the misconduct of its officers and employees.
Commissioner Heitzman recommended that the EC should establish steps to follow on all cases that may require the disclosure of an employee's identification due to his/her misconduct.
Commissioner Kobayashi suggested that the EC should request an opinion on disclosure in this case from OIP.
After deliberating, the EC instructed the staff to request an opinion from OIP regarding whether the EC may disclose the manager's identity to the public.
C. Report and recommendation regarding whether a former city employee would violate RCH Section 11-102(b) (prohibition against disclosing confidential information) may disclose confidential information obtained in the course of employment; EC No. 05-159(w)
The EDLC reported that an attorney represents a former employee in a City department in a lawsuit that the former employee has filed against the City and several of his former department supervisors. The EDLC stated that the former employee also filed a complaint with the Ethics Commission against his former supervisor, which substantially overlaps with his lawsuit.
The EDLC stated that the former employee's attorney has requested, on behalf of the former employee, advice as to whether the former employee would violate any standards of conduct or code of ethics of the City, if his testimony by written document/affidavit or otherwise were used.
The EDLC stated that finding an ethics violation under the facts of this matter might be problematic as there is a risk that it would violate the former employee's First Amendment rights. The EDLC stated that the Commission has recognized in the past that it must be mindful of constitutional free speech rights in interpreting and applying the City's ethics laws. The EDLC stated that the information that the former employee wants to disclose probably constitutes a matter of public concern, insofar as it involves alleged wrongdoing by City officials.
The EDLC stated that finding that the former employee violated RCH § 11-102(b) might also run counter to the state Whisteblowers' Protection Act, which generally protects employees (including public employees) who make reports of actual or suspected wrongdoing to their employers or government agencies.
The EDLC stated that if the Commission were to find that the former employee's disclosure of the information in his affidavit constituted a violation of RCH § 11-102(b), which would ordinarily subject him to discipline, he might have a claim under the Whisteblowers' Protection Act.
The EDLC recommended that the EC prepare a draft opinion stating that the EC conclude that the disclosure of the former employee's affidavit would not constitute a violation of RCH § 11-102(b). Also to make clear to the former employee in the opinion that: (1) this does not mean that the EC necessarily believes that the statements in the former employee's affidavit are true, but only that they are not knowingly false; (2) the opinion is limited only to the City's ethics laws and that the disclosure of the information in the former employee's affidavit might be prohibited by other laws; and (3) the opinion addresses only the disclosure of the specific information contained in the affidavit and that the disclosure of additional information or in other contexts is not necessarily permitted under the ethics laws.
The EDLC stated that Corporation Counsel and the former employee's attorney would like to make written and oral comments on the EC's proposed opinion. The EC moved, seconded, and unanimously carried to instruct the EDLC to submit the draft opinion to both parties, and to inform both parties to submit written comments to the EC's proposed opinion no later than February 7, 2006, and to inform both parties that they may make oral comments to the proposed opinion at the EC's February 16, 2006 meeting.
D. Report and recommendation regarding whether a City officer violated RCH Section 11-102(c) (financial interest that is incompatible with or may tend to impair officer's discharge of duties); EC No. 03-002(w)
The ELDC reported the parties are currently working on a settlement to this matter, and request that the EC move this matter to the February 16, 2006 meeting.
This matter was moved to the February 16, 2006 meeting.
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 12:35 p.m.