CITY AND COUNTY OF HONOLULU
Date and Place: July 11, 2006
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex R. Smith
Raymond H. Fujii
Susan S. Heitzman
Matthew H. Kobayashi
Wayne T. Hikida
Cynthia M. Bond
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
Also Present: Wynde Yamamoto, Administrative Deputy Corporation Counsel (COR), Joe Lum, COR Administrative Services Officer, and Wendy Tanaka, Budget Analyst, Department of Budget and Fiscal Services only for Agenda Item V.C.
I. CALL TO ORDER
The 397th 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 MAY 16, 2006 OPEN MEETING
The minutes of the open meeting of May 16, 2006, were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time of the July 25, 2006 meeting and setting the date and time for the August, 2006 meeting
The EC cancelled the June 27, 2006 meeting, and moved the July 25, 2006 meeting to July 11, 2006. The EC set the date and time for the August 22, 2006 at 11:30 a.m. meeting and the September 19, 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 June 22, 2006, outlining the ethics training conducted to date in fiscal year 2006.
The EDLC reported that over the past 5 years, the EC staff has conducted mandatory ethics training for over 2,800 city officers and employees from every agency in the city. The EDLC stated that the EC now needs to determine when retraining should occur under the mandatory ethics training law. The majority (about 2,300 out of 2,800) was trained before July 2003. Since then, the EC decided several new opinions and published revised guidelines, and there have been some changes to the law. The EDLC stated that a 2-hour class that functions as an update on the important ethics issues of the last 5 years, as well as a refresher on the basics regarding conflicts of interest and misuse of city resources is timely now.
After discussion, the EC agreed with the EDLC’s recommendation to have the EDLC prepare a refresher course, including the changes to the ethics laws and opinions. The Commission requested the EDLC to review and report the training practices used in other jurisdictions.
B. Report regarding comments by Councilmember Rod Tam as to requests for general ethics advice from the news media.
The EDLC reported that during the Council hearing on the nomination of Wayne Hashiro as Managing Director, Councilmember Tam commented that he thought the EC staff should not talk to the news media about a matter under investigation by the Commission. He was under the misapprehension that the staff comments noted in the article by reporter Jim Dooley were made after the EC had opened an investigation.
The EDLC stated that he informed Councilmember Tam that the law and Commission policy does not allow staff to discuss any case that is under investigation, and that the EC’s practice is to offer general ethics advice to anyone, including members of the media, who requests general information about the ethics laws.
The EDLC stated that Councilmember Tam seemed satisfied with this explanation.
C. Publication of the Commission’s opinion finding no ethics violation by Wayne Hashiro, Acting Managing Director
The EDLC inquired if the EC would like to publish this opinion, which was approved by the Commission at the last meeting. The EDLC stated that he believe it would be useful to agency heads and others officers and employees who have similar concerns about how involved they should get in work projects that affect their family or friends.
The EC moved, seconded, and unanimously carried to approve the publishing of the Commission’s opinion regarding Wayne Hashiro.
D. Proposed three-year operating plan for Ethics Commission
The EDLC brought to the attention of the Commission a draft copy of staff’s comprehensive operating plan for the Commission for FY07 through FY09. After reviewing, the Commission requested that the EDLC prepare a prioritized version of the operating plan that contains a more thorough review of the priorities.
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 May 16, 2006 meeting
The minutes of the executive session of May 16, 2006 were unanimously approved.
B. Report and recommendation regarding the Commission’s case procedures
The EDLC stated that his report responds to questions raised by members of the Commission over the last few meetings regarding the process, policy and practices in handling requests for advice and complaints.
The EDLC reported that with regards to a request for advice, staff reviews a request and makes an informal written or oral opinion on all requests by applying the Charter, ordinances, and the Commission’s prior advisory opinions to the specific facts of the case. If one of the following factors exists, staff brings the request to the Commission’s attention:
1. The case raises an important issue of first impression, that is, the Commission has
not taken a position on the issue in a formal advisory opinion;
2. The case raises a new or difficult policy issue;
3. The opinion is likely to set precedent for a number of similar cases;
4. The requester asks for a formal advisory opinion from the Commission; or
5. There are other unique aspects to the case of which the Commission should
The EDLC reported that with regards to a complaint, the Commission must respond to a written complaint and, in its discretion, may respond to an oral complaint. The complaint process generally follows these steps:
1. Receipt of complaint.
2. Staff determination that the matter described in the complaint is within the
jurisdiction of the EC.
3. Staff determination that alleged conduct, if true, would constitute probable cause
that the subject of the complaint (“Subject”) violated an ethics law.
4. Investigative phase: More information is gathered to determine whether the facts
support a finding of probable cause that the Subject violated an ethics law.
The EDLC noted that, if staff finds that there is not enough evidence to find probable cause that the Subject violated an ethics law, the case is closed with a letter to the Complainant explaining the results of the investigation and noting that, if the Complainant disagrees with staff’s analysis, the Complainant may ask the Commission to review staff’s conclusion and determine probable cause.
The EDLC stated that if staff finds that the evidence supports a finding of probable cause, the matter is referred to the Commission for its determination of probable cause. If the Commission finds no probable cause under the facts available, an advisory opinion is rendered stating the reasons for the finding. If the Commission finds probable cause that the Subject’s conduct breached an ethics law, the Commission issues a Notice of Possible Violation of the Standards of Conduct (“NOPV”), which describes the misconduct and the specific laws violated.
The ELDC advised that the Subject may respond to the NOPV by explaining his/her conduct and/or by requesting a hearing (contested or investigative) before the Commission. If the Subject fails to respond to the NOPV, the Commission is authorized to render an advisory opinion based on the information available to it. After a hearing or upon a recommended settlement from staff and the Subject, the Commission renders an advisory opinion. If the EC recommends discipline, the appointing authority must state what action it will take on the Commission’s recommendations.
The EDLC reported that with regards to an anonymous complaint, because the motivation of the complainant cannot be observed or tested, one needs to proceed cautiously in such cases. Also, without a complainant, the investigator is likely to have insufficient leads to track. The complaint must provide sufficient information on its face so that the investigator may determine its truth or falsity through corroborating witnesses or documents. If there is insufficient evidence to corroborate the anonymous complaint, it will be dismissed.
Upon discussion, the EC moved, seconded and unanimously approved having staff prepare a policy statement regarding the Commission’s case procedure regarding requests for advice, complaints and anonymous complaints.
C. Request for salary increase for the EDLC
The EDLC reported that at the April 18, 2006 meeting, the Commission granted him a raise subject to whether the raise would significantly impact the Commission’s budgets for FY06 or FY07.
The EDLC noted that there were sufficient funds for the FY06 portion of the raise. The FY07 budget, however, would be affected by the amount of the EDLC’s raise. Specifically, the salary hike would reduce the Commission’s ability to send participants to the COGEL conference in December 2006. The Commission has usually sent 2 or 3 people to COGEL, although in one year only 1 person attended and in another 4 traveled. Most commissioners find that the conference usually presents an opportunity to educate themselves on current ethics issues and to network with staff and commissioners from other jurisdictions.
The EDLC stated that our budget analyst, Wendy Tanaka, recently produced four FY07 budget projections, which were submitted to the Commission. The four projections vary in the amount of the salary paid to him so that the EC may see the affect on the Commission’s operations.
The Commission allowed the comments of Wynde Yamamoto, Administrative Deputy Corporation Counsel (COR), Joe Lum, COR Administrative Services Officer, and Wendy Tanaka, Department of Budget and Fiscal Services.
Ms. Yamamoto stated that, she and Mr. Lum are attending the EC meeting on behalf of Carrie Okinaga, Corporation Counsel, and wanted to make it clear that they are not attending the meeting to interfere with the Commission’s internal business, and that COR does not take any position for or against the proposed EDLC salary increase. Ms. Yamamoto stated that Ms. Okinaga desired the Commission to understand that it is administratively attached to COR and Ms. Okinaga is responsible for defending the administrative actions taken by the Commission.
Mr. Lum stated that since the Commission is administratively attached to COR, and Ms. Okinaga is COR’s appointing authority, Ms. Okinaga would have to approve the salary increase. Any additional salary expense for FY07 that was not included in the Commission’s budget would come out of the Corporation Counsel’s FY07 budget.
The Commission discussed the salary/budget projection, which was dated July 11, 2006, and submitted at the meeting by Ms. Tanaka. Ms. Tanaka explained that this pay increase should keep the FY07 expenses within the budget.
Several Commissioners noted that the salary for the EDLC was within the discretion of the EC to set, as long as it was justifiable, was within the range required by ordinance and was within the budget.
Commissioner Bond noted that civil service employees in the excluded management 7 (EM-7) range had been provided a 3.5% pay increase in October 2005 and would receive another 3.5% hike in October 2006. She commented that the EC is required to set the EDLC’s within the EM-7 pay range. Therefore, the EC should consider at least the same increases to the EDLC that were given the EM-7 range. Commissioner Bond also stated that it was her understanding from personnel at the Department of Human Resources that “within range progressions” were also paid to the EM-7 range and that the Commission should also consider “within range progressions” in setting the EDLC’s pay.
After further discussion, it was moved, seconded and approved that: (1) Mr. Totto be given the salary increase beginning October 1, 2006 as shown in Ms. Tanaka’s July 11, 2006 projection and (2) the Commission determine a salary for Mr. Totto for FY08 that would take into account the salary increases (percentage increases and within range progressions) received by the EM-7 range in FY06 and FY07, but that he had not received.
D. Recommended response to comments from Corporation Counsel regarding the salary increase for Executive Director/Legal Counsel and other matters
The EDLC suggested that, because Chair Smith would send a letter to Ms. Okinaga regarding the Commission’s proposed salary for the EDLC, no response to the other comments were needed.
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 1:08 p.m.