CITY AND COUNTY OF HONOLULU
Date and Place: January 24, 2011
Standard Financial Plaza
Conference Room, Suite 211
Present: Charles W. Gall, Esq., Chair
Geri Marullo, R.N., Dr.PH, Vice Chair
Susan Heitzman, Commissioner
Rachael Wong, MPH, Commissioner
W. Jeffrey Burroughs, Ph.D., Commissioner
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Laurie A. Wong, Associate Legal Counsel (ALC)
Stenographer: Norm Fisher
Excused Absence: Stephen Silva, Commissioner
I. CALL TO ORDER
The 438th meeting of the Ethics Commission (Commission or EC) was called to order at 11:32 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
DECEMBER 20, 2010 OPEN MEETING
The minutes of the open session of December 20, 2010 meeting were unanimously approved.
III. OLD BUSINESS
A. Resetting the date and time for the February, 2011 meeting and setting the date and time for the March , 2011 meetings
The EC rescheduled the February 21, 2011 meeting to February 28, 2011 at 11:30 a.m., and scheduled the date and time for the March, 2011 meeting for March 25, 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 January 14, 2011 regarding the following agenda items:
A. Administrative News
Additional Report on the COGEL Conference
The EC requested that the EDLC add additional information regarding his report on the COGEL Conference he attended in Washington, D.C. from December 5-8, 2010. The EDLC stated that the report will be incorporated by reference into these minutes.
The EDLC introduced Tiffany Tomei as a volunteer with the Ethics Commission.
The EDLC stated that the new Mayor has selected 2 new commissioners, Jeff Portnoy and Mike Lilly. The EDLC stated that both are very senior attorneys in Honolulu. The EDLC stated that it will take approximately 2 to 3 months before they are sworn in as commissioners.
Pie Charts Showing Case Statistics
The EDLC brought to the EC's attention a series of pie charts which reflected the EC's workload for fiscal years 2010 and 2011. The EDLC stated that the EC will essentially have the same workload in fiscal year 2011 that the EC had in fiscal year 2010, in terms of the number of request for advice and the complaints that have been filed. The EDLC stated that the percentage of cases dealing with misuse of position, misuse of government resources, and conflict of interest are roughly the same each year.
The EC stated that although the pie charts are informational, it would like the pie charts to further elaborate the cases by department, and explain what the EC is doing with the information (e.g., give feed back so both the public and the city understands that these trends need to come down), by either inputting the information on the website, or meeting with various department heads to discuss the amount and types of complaints within each department.
The Commissioners stated that they would like the pie charts to show complaints, violations, corrective actions, and discipline.
After further discussing the matter, the Commission moved, seconded, and unanimously carried that the EC receive staff's recommendation on: 1) matrix/variables they would like to track, 2) the frequency of the reporting; and 3) decision on the dissemination of that information, both internal and external, for presentation at the March 25, 2011 EC meeting.
The Commission also moved, seconded and unanimously carried to form a sub-committee of 3 Commissioners, Vice Chair Marullo, Commissioner Wong and Commissioner Burroughs, to assist staff in working on the matrix.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the December 20, 2010 meeting
The minutes of the executive session meeting of December 20, 2010 were approved.
* * *
The EDLC referred to his memorandum dated January 14, 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 a 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 the former city officer's failure to timely file his disclosure of conflict of interest. The EDLC stated that staff recommends that the draft opinion be adopted by the Commission.
The Chair informed the EC that because he will now be signing the opinion, he would like a little more time to review and edit the opinion. The Chair also stated that on all future opinions, the Chair and the EDLC will together first work on the draft and then present it to the EC for its review and approval.
After further discussing the matter, the Commission moved, seconded, and unanimously carried to take up approval of the final draft of the opinion at the February 28, 2011 EC meeting. Also, in future advisory opinions, a phrase indicating that one of the attorneys for the Commission has reviewed the advisory opinion will be inserted into the opinion.
C. For Decision: Report and recommendation regarding probable cause of violations of RCH Sec. 102.1(c) (financial or business conflict of interest), RCH Sec. 11-103 (failure to disclose conflict of interest) and ROH Sec. 3-8.4 (failure to file complete financial disclosure) by a city officer
The ALC reported that in May 2008, the Ethics Commission staff informed
a city officer, who is a member of a city Board, and who is also the president of a non-profit organization ("Organization") that received city grant money, that he/she had a conflict of interest based on the Organization's receipt of city grant money related to a city project ("Project"), and that the city officer should recuse himself/herself from all deliberation, decision making and hearings related to the Project.
The ALC stated that the city officer's Organization received over $150,000 in City grant money since 2007. The purpose of the grant money is related to the Project.
The ALC stated that from May through July 2009, the city Board heard numerous matters related to the Project. However, the city officer neither disclosed his/her conflict of interest nor recused himself/herself from these matters. The ALC stated that the city officer also failed to disclose his/her affiliation with the Organization and its receipt of city grant money on a form submitted to Council requesting the city officer's confirmation to the city Board.
The ALC stated that probable cause exists that the city officer violated RCH § 11-102.1(c) because he/she had a financial interest and business activity in the Organization that may have affected his/her participation in the Project matters at the city Board, but he/she failed to recuse himself/herself during the city Board meetings. Also, he/she did not disclose these conflicts of interest for the city Board meetings where the Project was an issue or in the form. The ALC stated that failures to disclose are violations of RCH § 11-103. Finally, during the course of this investigation, it was discovered that the city officer also failed to accurately complete his/her Financial Disclosure forms and therefore is in violation of ROH § 3-8.4.
The ALC stated that, based on the facts as stated above, staff recommends that the Commission move for and require that staff issue a Notice of Possible Violation of the Standards of Conduct ("NOPV") consistent with the above-analysis to the city officer. The ALC directed the EC's attention to a proposed draft NOPV for its review and approval.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt the draft NOPV as amended.
The Commission also moved, seconded, and unanimously carried to authorize staff to issue the NOPV to the city officer once staff has received the additional information from the city Board that was requested during staff's investigation.
D. For Decision: Report and recommendation to amend ROH Sec. 3-6.1, et seq., the Commission's procedural laws
The EDLC directed the EC's attention to a draft of new ordinances that will be proposed to the Mayor and ultimately to the City Counsel.
The EDLC reported that the revised Charter, ordinances and rules set forth the powers of the Commission, as well as the standards of conduct that each city officer and employee must follow. The EDLC stated that from time-to-time these laws should be updated to effectuate the Commission's primary goal – to improve the ethical conduct of city personnel. The EDLC stated that laws describing the Commission's powers and duties and those that city personnel must comply with should be clear, consistent and relevant to the ethical issues that the EC face.
The EDLC stated that staff's strategy to change the law is to phase in the modifications by breaking them down into topics that are easier to understand and focus on. Therefore, staff's proposed changes targets changes to the part of the ordinance that details the Commission's powers and duties, ROH Sec. 3-6.1, et seq. The EDLC stated that the highlights in the draft new ordinance include: (1) streamlining the Commission's subpoena process; (2) making the ordinance consistent with the Charter as to the form required for requests for advice and complaints; and (3) specifying when Commission records are confidential. The commentary in the attachment is intended to describe why the changes are needed and would be presented to the Council for ease of understanding. The EDLC stated that these changes in the ordinance will allow the Commission to amend its Rules of Procedure, so that the rules will contain the best practices available for the Commission's procedures.
The EDLC stated that the Commission's current Rules of Procedure are 26 years old and largely outmoded. The EDLC stated that staff has a redraft of the rules that will be presented at the next meeting. Both the new rules and the ordinance changes have been reviewed by Corporation Counsel. The EDLC stated that further down the road, staff will offer a set of rules on the standards of conduct.
The EDLC stated that staff recommends that the Commission direct staff to draft a bill that encompasses the changes in the draft of new ordinances and request the bill be introduced at Council.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation and authorizes staff to submit to the Council, the draft of the new ordinances as submitted.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:45 p.m.