CITY AND COUNTY OF HONOLULU
Date and Place: March 21, 2011
Standard Financial Plaza
Conference Room, Suite 211
Present: Charles W. Gall, Esq., Chair
Geri Marullo, R.N., Dr.PH, Vice Chair
Rachael Wong, MPH, Commissioner
W. Jeffrey Burroughs, Ph.D., Commissioner
Stephen Silva, Commissioner
Jeffrey S. Portnoy, Esq., Commissioner
Michael A. Lilly, Esq., Commissioner
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Laurie A. Wong, Associate Legal Counsel (ALC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 440th 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
FEBRUARY 28, 2011 OPEN MEETING
The minutes of the open session of February 28, 2011 meeting were approved.
III. OLD BUSINESS
A. Confirming the date and time for the April 25, 2011 meeting and setting the date and time for the May 2011 meetings
The EC confirmed the April 25, 2011 meeting and scheduled the date and time for the May 2011 meeting for May 23, 2011 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211.
IV. NEW BUSINESS
The EDLC referred to his memorandum dated March 15, 2011 regarding the following agenda items:
A. Administrative News
The EDLC reported that the EC continues to receive complaints at a high volume.
B. For Decision: Report and recommendation regarding expanding ethics training to all city employees
The EDLC reported that the single most important Commission duty is to educate and train city personnel about the ethics laws. Over the last 10 years, the staff has annually trained hundreds of supervisors, managers, board and commission members and elected officers through mandatory training.
The EDLC stated that all-employee training has been a high priority for the Commission in its Operating Plans over the years. In survey responses, 95% of supervisors and managers would recommend ethics training to other employees. When asked about what the Commission should do to improve the city’s ethical culture, the most repeated request from supervisors and managers was to train all employees.
The EDLC stated that he discussed this with Doug Chin, the Managing Director (MD), and that the MD is very keen on starting training for all employees, believing it will reduce waste and improve efficiency in city government and boost employee morale. The EDLC stated that line employees have not been trained due to a lack of resources. There is a concern that the number of requests for advice and complaints submitted to the Commission and the departments will increase when an additional 6,000 employees receive training.
The EDLC stated that, when implemented, the training program would be conducted by groups of employees watching DVDs that describe basic ethics laws, with comments by the Mayor or MD and additional information from Commission staff about Commission procedures. Each employee would be given a self-graded test and pertinent handouts. The training would take between 45 to 60 minutes. Cost of the DVDs will be paid out of the Commission’s budget and/or departmental budgets. This technique has been used successfully for sexual harassment and workplace violence training throughout the city.
After discussing the matter, the Commission moved, seconded, and unanimously carried to approve a policy statement supporting mandatory ethics training for all city officers and employees. This policy should then be forwarded to the Mayor and the Council.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the February 28, 2011 meeting
The minutes of the executive session meeting of February 28, 2011 were approved.
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The EDLC referred to his memorandum dated March 15, 2011 regarding the following agenda items:
B. Informational: Report regarding proposed Rules of Procedure
The EC deferred this matter to the next meeting.
C. For Decision: Report and recommendation (1) regarding the role of Commission counsel in the contested case proceeding, and (2) request to set a hearing date in contested case against former city employee for acceptance of a gift
The EDLC reported that when this matter was before the Commission at the last meeting, there was a concern about what role the Legal Counsel and Associate Legal Counsel (“Counsel”) should take in presenting the case to the Commission. The EDLC stated that after researching the issue, staff found that in contested cases, the Commission’s legal counsel should not advise the Commission if counsel have been involved in investigating or prosecuting the case.
The EDLC and the EC determined that in this case and in future cases, the EC counsel should request a deputy from COR who had no part in the adversary hearing or investigation to provide legal advice in the Commission’s decision making functions, such as (1) when the EC has found probable cause; (2) when staff has negotiated a resolution in a matter, but the resolution was rejected and/or more information was requested by the EC; and (3) when there is a contested case hearing.
The EC has scheduled this contested case for hearing on June 27, 2011.
D. For Decision: Report and recommendation regarding the possibility of increasing the Commission’s authority to impose civil fines on all city civil service employees who have violated city ethics laws.
The ALC reported that at the end of the February 28, 2011, executive session, the EC discussed and decided that it would like staff to attempt to increase the EC’s authority to impose civil fines on city civil service employees given the new administration.
The EDLC stated that because this had inadvertently become a new agenda item, procedurally, the EC was required to have a 2/3 recorded vote of all members to add the new item to the February 28 agenda before voting on the matter. Because of this procedural problem, the motion could not be adopted. As a result, staff added the item to the agenda for this meeting.
After discussing the matter, the Commission moved, seconded, and unanimously carried to have staff review whether it is feasible to increase the EC’s authority to impose civil fines against all city employees.
E. For Decision: Report and recommendation for a formal resolution to issue subpoenas for witnesses and documents in EC No. 10-293
The ALC reported that a city agency has turned this case over to Ethics Commission staff due to inadequate internal investigation performed by the city agency’s personnel.
The ALC stated that Commission staff received a complaint and information alleging that a city employee, used his/her position to grant favorable treatment to a non-city employee in violation of RCH Sec. 11-104. Despite several attempts to contact him/her through his/her supervisor, the city employee failed to respond to a written request for an interview from Commission staff. Therefore, the ALC stated that staff recommends that the Commission move for and adopt a formal resolution to issue a subpoena for discovery in this matter because: (1) the Commission’s investigation and advisory opinion in this matter require information reasonably related to the issues stated above available from the city employee, who did not present himself/herself when requested; (2) other witnesses may also be reluctant to produce information without a subpoena; and (3) subpoenas for the attendance of witnesses and production of records will expedite the investigation in, and resolution of, this matter. The ALC directed the EC’s attention to a draft Resolution for the Commission’s review and approval.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff’s recommendation and authorized staff to issue the resolution as written. The Commission also moved, seconded, and unanimously carried to instruct staff to consult with the prosecuting attorneys office to determine if the city employee’s actions were also criminal.
F. For Decision: Report and recommendation for a finding of probable cause that a city employee violated RCH Sec. 11-104 (misuse of city position, email, computer and other city resources)
The ALC reported this is a request for the Commission to issue a Notice of Possible Violation of the Standards of Conduct to a city employee.
The ALC reported that the city employee used his/her city email and position for his/he personal benefit and for the benefit of others.
The ALC stated that RCH Section 11-104, which reflects the city’s fair and equal treatment policy, prohibits elected or appointed officers or employees from using their official positions to secure special treatment for themselves or any other person. “Special treatment” may be either to the advantage or disadvantage of another.
The ALC stated that due to city employee’s actions, staff recommends that the Commission move for and find probable cause that the city employee may have violated RCH Sec. 11-104 as described above. In addition, the Commission should move for and require that staff issue a NOPV to the city employee consistent with the above-analysis. The ALC directed the Commission’s attention to a draft NOPV for its review and approval.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff’s recommendation and authorized staff to issue the claims contained in the staff report in an NOPV to the city employee.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:25 p.m.