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MINUTES

ETHICS COMMISSION

CITY AND COUNTY OF HONOLULU

 

 

Date and Place:            March 22, 2005

                                    Standard Financial Plaza

                                    Conference Room, Suite 211

 

Present:                        Robin D. Liu, Chair

                                    Lex R. Smith, Vice Chair

                                    Susan S. Heitzman

                                    Raymond H. Fujii

                                    Matthew H. Kobayashi

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

                                    Matthew J. Viola, Outside Counsel

Stenographer:               Norm Fisher 

 

I.          CALL TO ORDER

 

           The 383rd meeting of the Ethics Commission (Commission or EC) was called to order at 11:30 a.m. by the Chair.

 

II.                 APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE FEBRUARY 22, 2005 OPEN MEETING

 

           The minutes of the open meeting of February 22, 2005, were unanimously approved.

 

III.       OLD BUSINESS

 

A.        Confirming the date and time of the April 19, 2005 meeting and setting the date and time for the May 2005 meeting

 

            The EC confirmed the April 19, 2005 at 11:30 a.m. meeting and set the date and time for the May 24, 2005 at 11:30 a.m. meeting, in the Standard Financial Plaza Conference Room, Suite 211.

 

IV.       NEW BUSINESS

 

A.        Administrative news

 

            The EC reported that he performed ethics training for 96 appointees of the new administration.

 

            The EC reported that Lawrence Tseu, DDS, rescinded his nomination to be a member of the Ethics Commission.

 

B.                Report regarding Senate Bill No. 1548 relating to county ethics commissions

 

            The EDLC reported that this bill would require that the process for selecting members of the ethics commissions assure impartiality and independence, including ensuring minimal involvement in the process by persons over which the commission has oversight.  The bill also states that each commissioner shall be selected on the basis of integrity, impartiality and independence as shown among other things by an absence of potential conflicts of interest.

 

The EDLC reported that this bill was introduced by Senator Les Ihara and is supported by the Hawaii State Ethics Commission (HSEC).  The EDLC stated that the supporters of the bill state they are not casting aspersions on any sitting county commission members, but suggest there is a better process by which to ensure the impartiality and independence of ethics commissioners.  The EDLC stated that 1548 has passed readings in the Senate and is likely to be referred to the House.  The EDLC stated that he does not believe any of the counties have testified in favor or in opposition to the bill.  The EDLC stated that he feels there is no reason to attend and provide a testimony on the bill. 

 

C.             Request to the Corporation Counsel for an opinion whether the Council or  
    Ethics Commission has authority to administer and enforce the lobbying laws

            The EDLC reported that the Hawaii Constitution appears to require the Commission to handle lobbying matters.  Under current law, the Council and the City Clerk manage lobbyist registration and restriction.  The EDLC stated that in order to have an independent analysis of the issue, he made the request to COR.

 

            The EDLC stated that the EC should discuss this matter when the EC receives the opinion from the Corporation Counsel

 

D.               Report on request by Council to investigate and determine whether members 
     of the past administration violated the ethics laws in the production of the
     “Renaissance of Honolulu,” EC Nos. 05-001 (w), -002 (w), –030 (w) and –
     021 (o)

 

The EDLC reported that the Commission received inquiries regarding whether the process for and expenditure of about $108,000 in creating the Renaissance of Honolulu book, authored by Mayor Harris, violated any ethics laws.  Additionally, at the request of Council, Corporation Counsel is reviewing whether any procurement laws were breeched.  Because of the Council’s interest in the matter, this has been given a high priority.

 

E.         Report and recommendation regarding whether investigators of the Department of Prosecuting Attorney should be allowed to have outside employment as process servers, EC No. 04-083(w)

 

            The EDLC turned over the discussion for this topic to outside counsel, Matt Viola.

 

            Mr. Viola reported that in August 2004, a supervising investigator requested an advisory opinion as to whether an investigator for the Department of the Prosecuting would be able to serve civil process on his/her time off or have any role in an immediate family member’s business of process serving.

 

            Mr. Viola reported that the Ethics Commission has not formally addressed this issue to date.   On one occasion in the past, the Commission received an oral inquiry from an investigator from the Honolulu Prosecutor’s Office asking whether he could serve process during his off-duty time.  The Commission’s staff informally advised the investigator that the city’s ethics laws and the Commission’s precedent did not automatically preclude such outside employment.

 

            Mr. Viola reported that in the past, the Commission has received a few inquiries from members of the Honolulu Police Department (HPD) as to whether HPD officers could moonlight as process servers under the city’s ethics laws.  In the course of responding to those inquiries, the Commission was informed by HPD that HPD has a provision in its contract with SHOPO that prohibits its officers from working as process servers when off-duty.

 

            Mr. Viola reported that unlike the HPD, the Prosecutor’s Office does not have its own internal policy prohibiting its investigators from working as private process servers.   In connection with this inquiry, the Commission staff asked the Honolulu Prosecuting Attorney, Peter Carlisle, if his office had a position on the question of whether its investigators were permitted to work as private process servers and whether his office had any policies or standards on the question.  Mr. Carlisle’s response stated in part:  “This office does not have any policies or standards that either permit or prohibit investigators from acting as private civil process servers.  Our past practice involved allowing investigators to engage in such activities provided they filled out the appropriate disclosure form.”  The fact that the Prosecutor’s Office does not prohibit its investigators from working as private process servers suggests it does not consider the risk that its investigators might misuse their official positions as particularly great.  Because the Prosecutor’s Office is probably in a better position than the Commission to assess that risk, the Commission could reasonably defer to its assessment. 

 

            Mr. Viola stated that while there is some risk that Prosecutor’s Office investigators might misuse their official positions if permitted to work as private process servers, the risks are probably not great enough to depart from the Commission’s normal practice of addressing alleged violations of the ethics laws on a case-by-case basis.   Thus, the staff recommends that the Commission not adopt a blanket prohibition against Prosecutor’s Office investigators working as process servers during their off-duty time, but instead follow its normal case-by-case approach – with one minor modification.

 

            The modification would be that Prosecutor’s Office investigators would generally be permitted to work as private process servers under the city’s ethics laws, as long as they submit to the Prosecuting Attorney a signed statement attesting that they have read, understood and will abide by the mandates of RCH §§ 11-102, 11-103, and 11-104.  If they do not submit such a signed statement, they would be prohibited from acting as private process servers. This approach would be consistent with the approach the Commission recently took in generally allowing city personnel with the authority to take official action to enforce the laws to hold active real estate licenses, in Advisory Opinion No. 2005-1. 

 

            After discussion, the EC moved, seconded, and unanimously carried to adopt the staff’s recommendations.

 

V.        EXECUTIVE SESSION SUMMARY

 

            There was no executive session agenda for this meeting. 

           

VI.       ADJOURNMENT

 

            The EC moved, seconded, and unanimously carried to adjourn the meeting.  The meeting was adjourned at 11:47 a.m.

 

Last Reviewed: Wednesday, April 20, 2005