CITY AND COUNTY OF HONOLULU
Date and Place: June 4, 2007
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Chair
Susan S. Heitzman
Cynthia M. Bond
Wayne T. Hikida
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola (Outside Counsel)
Stenographer: Norm Fisher
Excused: Raymond H. Fujii (Vice Chair)
Matthew K. Kobayashi
I. CALL TO ORDER
The 405th meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 p.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
APRIL 25, 2007 MEETING
The approval of the minutes of the open meeting of April 25, 2007 was deferred to the July 11, 2007 meeting.
III. OLD BUSINESS
A. Setting the date and time of the next regular meeting for July, 2007 and setting the date and time for the August, 2007 meeting
The EC scheduled the date for the July 11, 2007 meeting at 11:30 a.m. and set the date and time for the August 8, 2007 meeting at 11:30 a.m. 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 May 31, 2007 outlining the number of cases pending and the ethics training conducted to date in fiscal year 2007.
B. Report regarding Senate Bill No. 755
The EDLC reported that SB 755 passed the Legislature and is awaiting action by the Governor. The EDLC stated that he will contact the Governor’s office to inquire about the status of the bill.
C. Report regarding a proposed ordinance to establish the process by which the Commission may impose civil fines on elected officers who violate the ethics laws
The EDLC reported that pursuant to the requests of Council Chair Marshall, staff added a statute of limitations of 6 years from occurrence of the infraction to the bill. The EDLC stated that the bill should be introduced in June by Council Chair Marshall with Council hearings to follow.
D. Report regarding the processing of employee complaints
The EDLC reported that the pilot for the Integrity Hotline Project has been given the green light by the Mayor.
The EDLC stated that staff is currently waiting for input from the public employee unions, cabinet and the managers who will be most affected by the likely increase in work load.
E. Resolution regarding mandatory ethics re-training for management and supervisory officers and employees
The EDLC directed the Commission’s attention to a proposed resolution prepared by staff to begin mandatory ethics re-training of management and supervisory officers and employees who are required to have ethics training and who were last trained in the period July 2002 through June 2004.
The EDLC stated that the training law requires retraining at intervals set by the Commission. Re-training is appropriate now because the Commission has clarified many areas about which officials should be informed and because personnel need to be reminded of ethics issues that can affect them and their staff.
After reviewing the resolution, the EC moved, seconded, and unanimously carried to have staff issue the resolution requiring mandatory ethics re-training for management and supervisory officers and employees.
F. Elections of officers
The EC decided to defer this topic until the next meeting.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the April 25, 2007 meeting
The approval of the minutes of the executive session meeting of April 25, 2007 was deferred to the July 11, 2007 meeting.
B. Report and recommendation regarding the opinion of the Office of Information Practices that the identity of the ethics law violator in Advisory Opinion No. 2005-5 should be disclosed to the public
The EDLC reported that after rendering Advisory Opinion No. 2005-5, the Commission was asked by a news reporter for a complete version of the opinion, including the name of the employee who violated the ethics law.
Because the Commission was concerned about balancing the privacy interests of the employee with the public’s right to know about the misconduct of government employees, it asked for advice from the state Office of Information Practices (OIP). OIP responded in Opinion Letter No. 07-09 that the EC must make the complete unredacted opinion available to the requester and the public.
After considering the OIP opinion, the EC moved, seconded, and unanimously carried that (1) it would follow the advice of OIP, and (2) 10 days prior to publishing the Advisory Opinion No. 2005-5 in full, by letter staff shall inform all the employees named in the opinion of the EC’s intentions and provide those employees with a copy of the EC advisory opinion and the OIP opinion letter.
C. Report and recommendation regarding probable cause that a city employee violated RCH Sec. 11-102(c) (business activity affecting discharge of work duties), RCH Sec. 11-102(d) (receiving compensation from non-city source for doing city work) and RCH Sec. 11-104 (misuse of city equipment, personnel and work time), EC No. 06-101(w)
The EDLC reported that the Commission received a written complaint on August 23, 2006. The complaint alleges that, during his city work time, a city employee used city resources to conduct non-city activities during city work hours.
The complaint was also sent to the city employee’s department. The city employee’s department is awaiting the EC’s investigation and advisory opinion regarding the allegations raised in the complaint and other misconduct.
The staff investigation is ongoing. To date, information has been discovered supporting reason to suspect that the city employee violated RCH Secs. 11-104, and 11-102(c) and/or 11-102(d). As a result, staff recommends that a Notice of Possible Violation consistent with this report should be transmitted to the city employee.
After considering the information provided by the staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to accept the recommendations of staff, and instructed staff to issue a Notice of Possible Violation to the city employee informing him of his possible violations of RCH Secs.11-104, and 11-102(c) and/or 11-102(d).
D. Report and recommendation regarding a resolution to subpoena witnesses and documents regarding alleged violations by a city employee, EC No. 06-101(w)
The EDLC directed the Commission’s attention to a proposed resolution for subpoenas regarding this case. The EDLC stated that an informal approach to discovery is not producing timely results. The EDLC stated that a subpoena to a witness removes the appearance of volunteering information. Also, the city employee’s immediate supervisor has failed to appear at two mutually agreed upon meetings for an interview and to produce documents showing when the city employee should have been working. This supervisor’s information is critical to the case.
The EDLC stated that based on these reasons, and those stated in the resolution, staff recommends that the Commission pass the resolution so that staff can subpoena witnesses or documents as needed.
After considering the information provided by the staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to pass the resolution to allow staff to subpoena witnesses or documents as needed.
E. Report regarding cases pending more than six months
The EDLC reported that the last “old case” report, from June 2006, showed 11 complaints that were more than 6 months old. To date, staff has 4 requests for advice and 12 complaints which were submitted more than six months ago. The EDLC stated that the Commission’s increased budget for FY08 should help to catch up on the backlog.
F. Annual job performance review for Executive Director/Legal Counsel
This was deferred to the next meeting.
G. Report regarding the Fiscal Year 2008 salary of the Executive Director/Legal Counsel
The EDLC reported that in its meeting of August 22, 2006, the EC voted to raise his annual salary to $90,000 from $85,458.
The EDLC stated that although BFS was informed of the EC’s decision to raise his pay to $90,000, BFS recommended $88,876 to be in line with the 4% average increase that COR deputies would receive under the FY08 budget.
After discussing the subject, the EC requested the EDLC to prepare a letter on behalf of Chair Smith to Carrie Okinaga and Mary Pat Waterhouse to discuss the salary issue.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:50 p.m.