CITY AND COUNTY OF HONOLULU
Date and Place: July 15, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan S. Heitzman, Chair
Wayne T. Hikida
Patricia Y. Lee, Esq.
Geri Marullo (NOTE: Was excused at 1:45 p.m.)
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 432nd meeting of the Ethics Commission (Commission or EC) was called to order at 11:20 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
MAY 5, 2010 OPEN MEETING
The minutes of the open session of May 5, 2010 meeting were unanimously approved.
III. OLD BUSINESS
A. Setting the dates and times for the August and September, 2010 meetings
The EC scheduled the date and time for the August, 2010 meeting for August 18, 2010 at 11:30 a.m., and scheduled the date and time for the September, 2010 meeting for September 14, 2010 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 June 4, 2010 regarding the following agenda items:
A. Administrative News
Matt Viola, Ethics Commission Outside Counsel
The EDLC reported that the EC’s outside counsel, Matt Viola, has been appointed as a District Judge to the Hawaii Family Court.
New attorney position for the EC
The EDLC reported that the City Council has approved funding for another attorney position for the Ethics Commission.
The EDLC reported that the EC budget will probably be reduced by 2% for the fiscal year 2011.
B. Report and recommendation regarding a policy and procedure for the release and publication of formal advisory opinions
The EC decided to defer this matter until the next meeting.
C. Report and recommendation regarding including Whistleblower information on the Commission’s website
The EC decided to defer this matter until the next meeting.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the May 5, 2010 meeting
The minutes of the executive session meeting of May 5, 2010 were unanimously approved.
* * *
The EDLC referred to his memorandum dated June 4, 2010 regarding the following agenda items:
B. Request by complainant for review of determination of no probable cause by Commission staff
The EDLC reported that a city employee submitted a complaint to the Commission because of the delay in a city agency’s investigation and because he/she was not interviewed by the investigators and was not allowed to give a list of witnesses to the investigators (who were also not interviewed). The Complainant described in some detail the concerns about misuse of city work time by a city supervisor.
The EDLC stated that he reviewed the information in the complete investigative file, talked with the city employee on several occasions and interviewed one of the witnesses on the city employee’s list. The EDLC stated that the witness did not have significant information regarding the alleged misconduct. Therefore, the statements of the witness, added to the fact that surveillance and other witnesses did not support the city employee’s complaint, led staff to conclude that there was insufficient information to find probable cause of a violation of the ethics laws. The EDLC stated that staff reported its opinion to the city employee. The city employee later submitted a request to the have the Commission members review staff’s findings and opinion. The city employee attended the July 15, 2010 meeting to address the Commission.
After reviewing the information provided by the Commission’s staff, and the comments of the city employee, and upon discussing the matter, the Commission moved, seconded, and unanimously carried to find that there is insufficient evidence to show probable cause. However, the Commission will be requesting that the city agency evaluate its list of investigators, and instructed staff to inform the city employee that, should she receive additional evidence regarding this issue, the Commission would be willing to review this issue at that time.
C. Report and recommendation regarding subpoena of a city officer’s records
The EDLC reported that at its last monthly meeting, the Commission passed a resolution authorizing the issuance of a subpoena to obtain financial records from an ex-city officer’s financial institution.
The EDLC stated that staff will not issue the subpoena at this time, but instead with provide the Commission with a draft of a Notice of Possible Violation to the ex-city officer at the next meeting for the Commission’s review and decision.
D. Report and recommendation regarding subpoena of city employees’ records and presence for interviews
The EDLC reported that the Commission has been asked by a city agency to investigate whether a former city employee or current city employee violated the ethics laws in connection with a theft.
The EDLC stated that a defendant recently pled guilty to theft. The EDLC stated that there is reason to believe that the ex-city employee and the current city employee may have steered the contract to defendant’s employer, a violation of RCH Section 11-104. The EDLC stated that both men admitted receiving Christmas gifts from defendant, and may have also received prohibited gifts, cash or sexual favors from defendant. As a result, there may be a violation of RCH Section 11-102.
The EDLC stated that, although staff has not contacted either the ex-city employee or the current city employee, staff believes that the ex-city employee will not respond to a request for an interview because after his initial interview with police he invoked his 5th Amendment right not to incriminate himself. Staff does not know what the current city employee’s position will be.
The EDLC stated that a subpoena to attend a staff interview would create a formal record of whether they will respond to questions about their involvement with defendant, and would allow staff to determine if either man received cash from defendant. In addition, allowing staff to subpoena their bank records for the relevant time period would allow staff to determine if there were any unusual financial transactions. Therefore, staff recommends that the Commission adopt staff’s resolution to allow staff to subpoena witnesses and records.
After reviewing the information provided by the Commission’s staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff’s recommendation to adopt the resolution to issue subpoenas to the ex-city employee and the current city employee to attend interviews and to issue subpoenas duces tecum.
E. Report and recommendation regarding probable cause of a violation of RCH Secs. 11-103 (failing to disclose a conflict of interest) and 11-104 (misuse of city resources) by a city officer
The EDLC reported that this case involved whether a city officer’s appearance before city and state agencies and failure to disclose his/her additional non-city employment as a possible conflict of interest before he/she introduced resolutions and a bill constituted violations of the city’s ethics laws.
The EDLC stated that the city officer sought to intervene as a party in a city agency proceeding. Although the city officer’s petition to intervene as a party was denied, the city officer was called to testify as a witness.
The EDLC stated that traditionally RCH Section 11-102(e) has been applied to ban city officers and employees from requesting discretionary permits or otherwise appearing before city agencies on behalf of others because of the potential that special treatment may be sought by or afforded to someone who works within the government.
The EDLC stated that there is no dispute that the city officer’s testimony at the public hearing as a witness and his submission of his petition to intervene constituted an appearance before a city agency. The city officer attempted to intervene and personally testified at the hearing with the stated intent of persuading the city agency to deny the city’s permit application. And, there is also no question that the city officer appeared before the agency as a city officer. However, the critical question, therefore, is whether the city officer’s appearance before the city agency was “in behalf of private interests.”
The EDLC stated that in previous advisory opinions, the Commission has defined “private interests” rather expansively, essentially deeming all interests that were not “governmental” as “private.” The EDLC stated that the subject matter of the hearing and the city officer’s testimony involved a matter that was of pressing concern to the community at large and to the city officer’s non-city employer in particular. Because the city officer’s testimony clearly addressed a matter of community concern it would, therefore, be permissible under RCH Section 11-102(e).
The EDLC stated that staff believes that the city officer’s non-city employment created a potential conflict of interest with respect to his/her introduction of the ordinance and resolutions. The substance of the ordinance and resolution were consistent with the city officer’s non-city employer’s position. Therefore, a reasonable person could view the city officer’s employment with the non-city employer as potentially affecting his/her decision-making on the ordinance and resolution. Under RCH Section 11-103, he/she was required to disclose his/her potential conflict of interest before he/she introduced the ordinance and resolutions. Because he/she did not do so, there is probable cause to believe that he/she violated RCH Section 11-103.
The EDLC stated that staff recommended that the Commission find that there is probable cause of an ethics violation of RCH Section 11-103, and issue a Notice of Possible Ethics Violation (NOPV) to the city officer, outlining the basic facts and law potentially violated and give the city officer an opportunity to request a hearing on the matter or to submit his/her position or objections in writing.
After reviewing the information provided by the Commission’s staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff’s recommendation, and instructed staff to draft an NOPV to the city officer.
D. Annual performance review of the Executive Director and Legal Counsel
The EC reported that the “EDLC was doing a great job” and submitted the review forms. The Commission requested that the meeting memoranda be transmitted for their review seven days before the meeting.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 2:05 p.m.