CITY AND COUNTY OF HONOLULU
Date and Place: March 3, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan S. Heitzman, Vice Chair
Wayne T. Hikida
Patricia Y. Lee, Esq.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Ethics Commission Outside Counsel (ECOC)
Stenographer: Norm Fisher
Excused: Lex Smith, Esq., Chair
I. CALL TO ORDER
The 429TH 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 SESSIONS OF THE
DECEMBER 1, 2009 AND JANUARY 6, 2010 MEETINGS
The approval of the minutes of the open meetings of December 1, 2009 and January 6, 2010 were unanimously approved.
III. OLD BUSINESS
A. Setting the date(s) and time(s) for the April and May, 2010 meetings
The EC scheduled the dates and times for the April and May 2010 meetings for April 8, 2010 and May 6, 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 February 26, 2010 regarding the following agenda items:
A. Adminstrative News
The EDLC reported that sometime within the next few months, it is probable that the Commission will have to move its offices. The EDLC stated that the Commission is on a month-to-month sublease with the state Attorney General's office and the state offices are likely to move to Kapolei during the year.
Financial disclosures filed by city officers and employees
The EDLC reported that the annual financial disclosure filings were due January 31. Norm has been tracking down those who have not yet filed. The report to the Council regarding non-filers will be going out in the near future.
Collecting data on the number of complaints of ethical misconduct submitted to city departments
The EDLC reported that many of the less serious (and even a few substantial) ethics complaints are submitted directly to a department's management without the Commission being made aware of the case. Some departments are better than others at investigating and responding to these cases. No one really has a handle on the number or nature of ethics complaints filed in the city overall. The EDLC stated that staff has begun to collect information from each department about the types and number of ethical misconduct issues that are submitted to the departments and not to the Commission. The reports will be generated twice a year and should help the Commission to monitor ethics issues within city government. In turn, this information should help the Commission be more responsive to ethics matters through advice, training programs and investigations.
B. Report and recommendation regarding request for advice whether RCH Section 11-104 (city resources to be used only for city projects) prohibits the deputies of the Department of Corporation counsel from providing pro bono legal services with city resources, EC No. 09-138(w)
This issue was reported by the Commission's outside counsel, Matt Viola (ECOC).
The ECOC reported that at the previous meeting, the Commission instructed staff to draft an advisory opinion that incorporated the substance of staff's memorandums that were drafted regarding the provision of pro bono legal services by corporation counsel deputies, and regarding the scope and recommended limitations on the "project with a community-wide benefit" exception to the fair and equal treatment policy.
The ECOC stated that the Commission discussed the portion of the advisory opinion that required the city official who designates a project as having a community-wide benefit to file a statement with the Ethics Commission that verified that the project met the basic requirements of the exception. The ECOC stated that the Commission queried whether it made sense to require the statement to be submitted in writing or whether it was more appropriate to simply require the designating officials to be prepared to explain, if asked, how the basic criteria of the memo were met (mainly how the project provided a community-wide benefit).
The ECOC stated that staff recommends not requiring the written statement, but including in the advisory opinion a reminder that the designating official should be prepared to explain how a particular project meets the basic criteria of the exception.
Upon discussing the matter, and after reviewing the information provided by the Commission's staff, the Commission moved, seconded, and unanimously carried to accept staff's recommendation, and the advisory opinion as amended.
C. Report and recommendation regarding Resolution 08-232, requiring recusal from participation or voting when a councilmember has a conflict of interest
The EDLC reported that in 2008, the Council took up Resolution 08-232. The Resolution called for a Charter question on this fall's ballot whether a councilmember should be prohibited from voting on a matter in which he/she has a "direct personal financial interest." The EDLC stated that the current law requires disclosure by a councilmember and allows a councilmember to recuse him/herself if there is a direct personal financial conflict of interest, but does not require recusal.
The EDLC stated that in 2008 staff suggested to the Council that it may want to revisit the proposed language in the Resolution, as staff believed that there were several problems from an ethics viewpoint with the existing language. The Resolution could be rewritten to advance councilmembers' accountability and integrity in the eyes of the public.
The EDLC stated that the most straight forward approach is to use the conflict standards that already exist in the Charter -- RCH Sections 11-102 and 11-103. RCH Section 11-102 proscribes specific financial and non-financial conflicts of interest. RCH Section requires a councilmember with "a personal or private interest, direct or indirect, in any proposal before the council" to fully disclose the interest. Following the approach in 11-103 would leave room to interpret conflicts that have not been anticipated under the specific sections in 11-102. Furthermore, councilmembers are accustomed to disclosing the conflicts described in RCH Sections 11-102 and 11-103 and disqualification should not impose any extra burden on the councilmembers or their staffs.
The EDLC stated that staff recommends acceptance of Resolution 08-232 as amended by staff. The standard for a conflict of interest causing recusal should be as stated in RCH Section 11-103: a direct or indirect personal or private interest. This will make councilmembers more accountable for their conduct and should promote the public's trust in government.
Upon discussing the matter, and after reviewing the information provided by the Commission's staff, the Commission moved, seconded, and unanimously carried to accept staff's recommendation and to submit testimony to the Council consistent with the recommendation.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the December 1, 2009 and January 6, 2010 meetings
The approval of the minutes of the executive session meetings of December 1, 2009 and January 6, 2010 were unanimously approved.
The EDLC referred to his memorandum dated February 26, 2010 regarding the following agenda items:
B. Status report regarding hearing for violations of RCH Section 11-104 (misuse of city resources), RCH Section 11-102(c) (financial conflicts of interest), RCH Section 11-103 (failure to file written disclosure of conflicts of interest), ROH Section 3-8.4 (failure to file complete financial disclosure statements), ROH Section 3-8.2(b) (acquiring a business or financial interest in which the officer may take official action) by a city officer, EC No. 09-042(o)
The EDLC reported that the officer's attorney and staff have reached an agreement to settle this case. The EDLC presented the Commission with a Stipulation Regarding Alleged Violations of Standards of Conduct ("Stipulation") and draft advisory opinion for the Commission's approval.
The EDLC stated that the details of the investigation and the resulting violations are described in the draft advisory opinion.
The EDLC stated that after several discussions with the officer and his counsel, the officer agreed to repay the city, including a civil fine. As noted in the Stipulation, the officer does not admit wrongdoing, but understands that the Commission will render a public advisory opinion that will disclose his name and conduct. The EDLC stated that the officer also signed a promissory note obligating himself to make monthly payments until the debt is paid off.
Upon discussing the matter, and after reviewing the information provided by the Commission's staff, the Commission moved, seconded, and unanimously carried to accept the Stipulation, and the draft advisory opinion with the following amendments:
1. The summary and recommendations in the advisory opinion should be amended so that the EC recommends that the City agency create a process by which any reimbursement request may be denied if the request does not conform to the City agency's policy.
2. The advisory opinion should be amended to state that, as a result of this investigation, the Commission found that the officer did not file proper financial disclosures for the past 9 years.
C. Status report regarding notice of charge and hearing for violations of RCH Section 11-102(a) and ROH Section 3-8.7(b) (acceptance of prohibited gift), ROH Section 3-8.7(c) (acceptance of prohibited gift in excess of $200 in value), RCH Section 11-104 (misuse of city resources) and/or RCH Section 11-102(d) (accepting compensation from a non-city source for carrying out city duties) by city employee, EC No. 05-144(w)
The EC decided to defer this matter until the next meeting.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:25 p.m.