CITY AND COUNTY OF HONOLULU
Date and Place: January 8, 2008
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Chair
Susan S. Heitzman, Vice Chair
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 411th meeting of the Ethics Commission (Commission or EC) was called to order at 11:37 p.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
NOVEMBER 6, 2007 MEETING
The minutes of the open meeting of November 6, 2007 were unanimously approved.
III. OLD BUSINESS
A. Setting the date and time for the February and March, 2008 meetings
The EC set the date and time for the February, 2008 meeting for February 13, 2008 at 11:30 a.m. and set the date and time for the March, 2008 meeting for March 13, 2008 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 4, 2007 regarding the following agenda items:
A. Administrative news
The EDLC outlined the number of cases pending and the ethics training conducted to date in fiscal year 2008.
B. Report and recommendation on Council Resolution 07-391, calling for a Charter amendment to prohibit certain types of conflicts of interests
The EDLC reported that this resolution would place on the ballot in 2008 the question whether, for a 1-year period, a new city officer should be prohibited from participating on behalf of the city in any matter in which the new officer was involved while privately employed during the 12 months preceding his/her city service. This concern is highlighted because of the officer's ability to return to the prior employer after his/her service with the city is completed.
The EDLC stated that Resolution 07-391 is designed to foster public confidence and trust in government officials who become department or agency heads, as it is intended to remove the new head from dealing with his/her prior employer in matters that the new agency head participated in during the last year of private employment.
The EDLC stated that staff suggests the Commission support the intent of the resolution to limit conflicts of interest, but defer to the Council to determine if prior employment is an issue that needs a safeguard. However, the commissioners were concerned that the EC should take a more proactive stance. Therefore, the EDLC was directed to offer a process for requesting a waiver of the conflict for consideration by the Council and Administration.
Upon discussing the matter, the Commission moved, seconded and unanimously carried to support the intent of Resolution 07-391, with an additional recommendation to add a waiver provision.
C. Report and recommendation on Council Resolution 07-384, calling for a Charter amendment to authorize the Ethics Commission to impose civil fines on all city officers and employees who violate the ethics laws
The EDLC reported that this resolution would place on the 2008 ballot the questions whether the EC should have the power to impose civil fines on a city officer or employee who violates the ethics laws. The current law permits the Commission to impose fines only on the city's 11 elected officials. The EDLC stated that from the viewpoint of developing an enforcement component to the EC's work, the authority to impose civil fines is the next logical step.
The EDLC stated that the vast majorities of states, now including Hawaii, and many municipalities, including Kauai County, empower their ethics agencies to levy civil fines. However, there are practical reasons to be cautious about the use of civil fines. The EC's resources will likely be taxed further. Because of the possibility of fines, some officers and employees will be more prone to hire attorneys or use union representation to defend against staff investigations. This will likely require additional resources in the Commission's budget, which is always a tough sell. In addition, effective use of the fine option may require a change in state law.
The EDLC stated that staff recommends that the Commission should continue its cautious support to be entrusted with the power to levy fines against any city officer or employee who egregiously violates the ethics laws.
Upon discussing the matter, the Commission moved, seconded and unanimously carried to adopt staff's recommendation to support Council Resolution 07-384.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the November 6, 2007 meeting
The minutes of the executive meeting of November 6, 2007 were unanimously approved.
B. Report and recommendation regarding request for advice from three city officers as to conflicts of interest, EC No. 07-070(w)
The EDLC referred to his confidential memorandum to the EC members dated January 4, 2007.
This matter was reported by the Commission's outside attorney, Matthew Viola. Mr. Viola reported that the Commission considered this matter at its meeting on November 6, 2007. A decision on this matter was deferred from the last meeting so that the commissioners could review a draft advisory opinion.
Upon reviewing the advisory opinion, the Commission moved, seconded, and unanimously carried to accept the advisory opinion as drafted.
C. Report and recommendation regarding possible violation of RCH Section 11-104 (misuse of city time for private purposes) by a city employee, EC No. 06-146(w)
This was reported by the Commission's outside counsel, Matt Viola.
Mr. Viola stated that the basic allegation against the city employee is that during city work hours, the city employee had been spending a considerable amount of time at home and running personal errands.
Mr. Viola stated that during his investigation, he found that, although there were unusual circumstances, including facts indicating that the city employee's conduct was condoned or even authorized by his supervisors, his investigation has corroborated the basic allegations against the city employee.
Therefore, staff recommends that the Commission consider a range of discipline for his violation of RCH § 11-104, and that the Commission take the opportunity in issuing an advisory opinion to pointedly admonish the city employee's department for its failures, as this entire situation could very easily have been avoided, had the city employee's department followed up more diligently on the complaints from the public and exercised supervisory control over the city employee.
Upon discussing the matter, the EC instructed staff to draft an advisory opinion that reprimands the city employee and the city employee's department, and noting that the EC would recommend discipline for the city employee's supervisor (at the time of the violation), if he had not retired before the complaint was submitted.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:45 p.m.