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MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

 

 

Date and Place:            March 17, 2009

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

 

Present:                        Lex Smith, Esq., Chair

                                    Susan S. Heitzman, Vice Chair

                                    Wayne T. Hikida

                                    Patricia Y. Lee, Esq.

                                    Geri Marullo

                                    Matthew J. Viola, Ethics Commission Outside Counsel (ECOC)

 

Stenographer:   Norm Fisher

 

Excused:                       Matthew H. Kobayashi

                                    Charles W. Totto, Executive Director and Legal Counsel (EDLC)

 

I.          CALL TO ORDER

            The 420th meeting of the Ethics Commission (Commission or EC) was called to order at 11:36 a.m. by the Chair.

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE

JANUARY 8, 2009 MEETING

           The minutes of the open meeting of January 8, 2009 were unanimously approved.

III.       OLD BUSINESS

A.        Confirming the dates and times for the February and March 2009 meetings

 

            The EC confirmed the date and time for the April 16, 2009 at 11:30 a.m., and scheduled the date and time for the May, 2009 meeting for May 14, 2009 at 11:30 a.m. in the Standard Financial Plaza Conference Room, Suite 211. 

IV.       NEW BUSINESS

            The Ethics Commission Outside Counsel (ECOC) referred to the Executive Director and Legal Counsel (EDLC) memorandum dated March 12, 2009 regarding the following agenda items:

           A.        Administrative news

           The ECOC referred to the EDLC's memorandum outlining the number of cases pending and the ethics training conducted to date in fiscal year 2009. 

B.         Report regarding 2008 annual financial disclosures

            The ECOC reported that the annual statements were due in the EC office by January 31.  As of today, 7 have not filed.  Memoranda have been sent to the Mayor's office and the City Council informing them of the names of the non-compliant individuals.

C.        Report regarding SB 531 and HB 626 to conform the county ethics process to the state ethics process

 

            The ECOC reported that SB 531 and HB 626 were introduced at the 2009 Legislature, which would have removed the state law requirement that counties may impose civil fines only for ethics violations that occur after the Commission has given notice to the violator to cease or correct the violation.  The ECOC stated that neither bill received a hearing.

            The ECOC stated that because it appears that this state law will not be changed in the near future, the Commission may want to seek advice of counsel to determine if there are any alternative reasonable interpretations of the law or procedures that would still permit the Commission to impose a civil fine without the necessity of having to give prior cease and desist notice.

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to authorize and instruct the staff to seek the advice of counsel.

V.        EXECUTIVE SESSION SUMMARY

A.        Approval of the minutes of the executive session of the January 8, 2009 meeting

           The minutes of the executive meeting of January 8, 2009 were unanimously approved.

           The Ethics Commission Outside Counsel (ECOC) referred to the Executive Director and Legal Counsel (EDLC) memorandum dated March 12, 2009 regarding the following agenda items:

B.         Report and recommendation regarding lack of probable cause to find violation of RCH Sections 11-102(c), 11-101 and 11-103 (conflict of interest) by city officers; EC Nos. 08-218(w) and 08-228(w)

 

            The ECOC reported that on November 30, 2008, the Ethics Commission received a complaint relating to a vote by a city commission ("Commission").  The vote was on the method for conducting the 2009 elections for a city board.

            The ECOC stated that the complaint questioned whether three of the commissioners who voted had conflicts of interest because they were also current members of the city boards.  The complaint stated that none of the three commissioners disclosed his/her alleged conflict of interest.  

            The ECOC stated that on December 15, 2008, the EC received a request for advice relating to the same issue raised in the complaint. 

            The ECOC stated that, based on the information that was presented to the staff, staff does not believe that there is a sufficient basis to conclude that the three commissioners had conflicts of interest relating to their votes, primarily because of the fact that none of the commissioners had actually filed to run for the 2009 board election at the time of the vote.  This meant that there was no objective basis to find any existing conflicting personal interests at the time of the vote.  

            The ECOC stated that staff also recommends that the Commission issue an advisory opinion in this matter to clarify when the inference of a personal interest affecting an officer or employee's official judgment is too speculative to create a conflict of interest.

            Upon discussing the matter, the Commission found that there was insufficient basis to conclude that the three commissioners had conflicts of interest, and the Commission moved, seconded, and unanimously carried to accept staff's recommendation to issue an advisory opinion in this matter to clarify when the inference of a personal interest affecting an officer or employee's official judgment is too speculative to create a conflict of interest.

            The EC also approved the draft advisory opinion that was submitted for the EC's review and approval.

C.        Report and recommendation regarding complaint of potential violation of RCH Sections 11-102(c), 11-101, 11-103 and 11-104 (conflict of interest and misuse of city position) by a city employee; EC No. 08-126(w)

                       

            The ECOC reported that On July 29, 2008, the Ethics Commission received a written complaint from a city employee. 

            The complaint alleges that a city employee has an undisclosed actual or perceived conflict of interest arising from his relationship with his significant other, who is a mid-level manager with a city contractor.   As such, the complaint alleges two potential ethics violations:  (1) prohibited conflicts of interest under RCH 11-101, 102(c) and 11-103; and (2) fair and equal treatment violations under RCH 11-104.

            The ECOC stated that the city employee is in a position where he has the potential of at least indirectly influencing his girlfriend's employment.  

            The ECOC stated that staff is hesitant to recommend that there is probable cause for a violation, because staff believes the Commission might be concerned about the precedent of finding an apparent conflict under these facts.

            The ECOC stated that the Commission would have to find a conflict of interest based on a personal relationship where: (1) the EC does not have direct evidence of any decisions being made that had a direct, tangible impact on the city employee's girlfriend; (2) the potential impacts of any decision by the city employee are likely to have only indirect impacts on his girlfriend; (3) The city employee does not have the power to make direct employment decisions regarding his girlfriend, because they do not work for the same employer; and (4) there are at least two layers of management between the city employee and his girlfriend. 

            The ECOC stated that staff therefore recommends that the EC find that there was not probable cause to believe an ethics violation occurred.  It was also recommended that it would be appropriate for Commission staff to sit down with the city employee and work through some recommendations about how he can avoid conflicts of interest and address his staff's concerns. 

            Upon discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation finding that there was no probable cause to believe a violation occurred, and instructing staff to meet with the city employee and to include the city employee's supervisor in the staff's recommendations.

D.        Report and recommendation regarding violations of RCH Section 11-104 (misuse of city resources for political campaign activities) by a city employee; EC No. 08-187(w)

 

            This matter has been continued to the next meeting.

  E.          Recommendation regarding proposed advisory opinion, EC Nos. 08-137(w) and 08-153(w)

 

            This matter has been continued to the next meeting.

VI.       ADJOURNMENT

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 12:15 p.m.

 

Last Reviewed: Monday, June 22, 2009