CITY AND COUNTY OF HONOLULU
Date and Place: November 22, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan Heitzman, Chair
Patricia Y. Lee, Esq., Commissioner
Charles W. Gall, Esq., Commissioner
Rachael Wong, MPH, Commissioner
Stephen Silva, Commissioner
W. Jeffrey Burroughs, Ph.D., Commissioner
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Laurie A. Wong, Associated Legal Counsel (ALC)
Stenographer: Norm Fisher
Excused absence: Geri Marullo, R.N., Dr.PH
I. CALL TO ORDER
The 436th 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
OCTOBER 11, 2010 OPEN MEETING
The minutes of the open session of October 11, 2010 meeting were unanimously approved, as amended.
III. OLD BUSINESS
A. Setting the dates and times for the August and September, 2010 meetings
The EC confirmed the December 20, 2010 meeting at 11:30 a.m., and scheduled the date and time for the January, 2011 for January 24, 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 November 15, 2010 regarding the following agenda items:
A. Administrative News
The EDLC reported that he will be attending the COGEL Conference in Washington, D.C. from December 5-8, 2010.
B. Election of Officers
The Ethics Commission elected Commission Charles Gall as Chair, commencing January 1, 2011, and Commissioner Geri Marullo as Vice Chair, effective immediately. Each person will serve in this capacity through 2011.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the October 11, 2010 meeting
The minutes of the executive session meeting of October 11, 2010 were approved, as amended.
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The EDLC referred to his memorandum dated November 15, 2010 regarding the following agenda items:
B. For Decision: Report and recommendation to fill the Associate Legal Counsel position
NOTE: Commissioner Rachael Wong recused herself from the discussions and vote on this matter.
The EDLC reported that 12 attorneys applied by the November 1, 2010 cut-off date. Out of the 12 applicants, 5 were to be interviewed; however, two accepted other employment before they were interviewed.
The EDLC stated that after interviewing the selected applicants, staff recommends that the Commission hire Laurie Ann Wong, Esq., as the Associate Legal Counsel for the Commission. The EDLC stated that Ms. Wong has 4 years of civil litigation experience, which also includes some administrative law matters. She has an outstanding academic record and her writing samples were the best of all the applicants. In addition, Ms. Wong was given high praise by her prior employers, who noted she combines maturity and independence with a very collegial approach to her work.
After reviewing the information provided by the Commission's staff, hearing from Ms. Wong, and discussing the matter, the Commission moved, seconded, and unanimously carried to approve staff's recommendation to hire Ms. Wong.
Ms. Wong was present at the meeting and was informed by the Commission of its approval of Ms. Wong's employment as a Associate Legal Counsel with the Honolulu Ethics Commission.
C. For Hearing and Decision: Response of city officer to Notice of Possible Violation of the Standards of Conduct, RCH Sec. 11-103 (failure to disclose conflict of interest)
The Commission moved, seconded, and unanimously carried to change the characterization of "Hearing" to "address the Commission."
The EDLC reported that the city officer was served with a Notice of Possible Violation ("Notice"). The Notice alleges that the city officer violated RCH Sec. 11-103 by not filing a disclosure of his/her conflict of interest. The EDLC stated that the facts are undisputed that the city officer violated RCH Sec. 11-103. However, the EDLC stated that staff believes it would be prejudicial to provide a recommendation on the issues of whether the city officer should be fined for the failure to disclose his/her conflict of interest, and whether the advisory opinion in this matter should identify the city officer, until the city officer has been heard by the Commission. The EDLC stated that the Commission should be aware that it found the city officer in violation of RCH Sec. 11-103 on virtually identical facts in a previous advisory opinion.
The city officer addressed the Commission and answered the Commission's questions.
1. The city officer stated that he/she wanted to address the Commission and have a discussion because this issue had once come up before, and therefore, he/she wanted to make sure that he/she as well as Council understands what the Commission's view and concern was. In addition, the Notice raised some questions for him/her as to what exactly is expected with regards to filing disclosures.
2. The city officer stated that RCH Sec. 11-103 was unclear as to when the disclosure must be filed. The city officer thought RCH Sec. 11-103 did not require him/her to file the disclosure until the legislation was voted on after first reading. The city officer admitted however, that the Commission's AO No. 2007-1 stated otherwise. AO No. 2007-1 states that once it was known that the measure contains a landfill issue, the city officer should have disclosed his/her conflict with the issue.
3. The city officer stated that he/she has tried to abide by AO 2007-1.
4. The city officer requested the Commission to clarify the trigger for RCH Sec. 11-103's disclosure filing requirement. Specifically, he/she wants to know he/her should have filed a disclosure at the time that he/she introduced the legislation or before he/she voted on the legislation.
5. The city officer stated that he/she believed that he/she was required to file a disclosure before he/she voted on legislation. He/She did not realize that merely introducing the Resolutions and the Bill required him/her to file a disclosure. Further, since there was no vote taken on the Resolutions, he/she did not believe he/she had to file any disclosures regarding them.
6. The city officer stated that AO 2007-1 provided that: "The city officer was required to file a disclosure before he/she voted on it." The city officer also stated that RCH Sec. 11-103 appeared to provide two trigger points for conflict of interest disclosure: "… such a disclosure shall be made a part of public record prior to taking a vote on any proposal" or "… at any time that such conflict become apparent."
7. The city officer agreed that he/she was late in filing the Bill disclosure under any interpretation of RCH Section 11-103 because he/she filed his/her disclosure after he/she voted on the Bill.
8. The city officer stated that it is not the normal practice of the Council to file a disclosure at the time legislation is introduced. The Council practice does not require their members to file a disclosure at first reading. Instead, all bills and resolutions on the agenda are voted out as a single group.
9. The city officer stated that, if it is the Commission's opinion that a disclosure should be filed prior to the introduction of legislation, it should inform the Council of this because this is not the current practice of the Council.
10. The city officer stated that he/she wanted to appear to the Commission to make sure that the Commission understood that it was not his/her intent to ignore or skip AO 2007-1. He/She believed that he was currently in compliance with the ethics laws.
After reviewing the information provided by the Commission's staff and the city officer, and discussing the matter, the Commission decided to continue its discussions on this matter before making any recommendation or decision. The Commission will address this matter at the next scheduled meeting.
D. For Decision: Adoption of draft formal advisory opinion regarding violation of RCH Sec. 11-102(c) (financial conflict of interest) by a city officer
The EDLC presented the Commission with a draft of Advisory Opinion 2010-5 per the Commission's request at its last meeting.
After reviewing the draft opinion and discussing the matter, the Commission moved, seconded, and unanimously carried to approve Advisory Opinion 2010-5, as amended.
E. For Decision: Proposed advisory opinion regarding a violation of RCH Sec. 11-102(a) and RCH Sec. 3-8.8 (prohibited gifts) by a city officer
NOTE: Commissioner Charles Gall recused himself from the discussions on this matter.
The EDLC reported that at its last meeting, the Commission did not find probable cause that the city officer violated the gift laws.
The EDLC stated that the Commission asked for a draft advisory opinion covering the two major concerns in the case. The first issue is one of gift reporting and process. Because the city agency did not keep records and receipts of the actual expenses paid by an outside vendor, the Council did not know the actual cost and, therefore, could not be sure it complied with the city's gift policy. The EDLC stated that he spoke with the chief of the Internal Control Division of the City and County of Honolulu, and he thought that the recommendation proposed in the advisory opinion was the right thing to do from an auditing viewpoint.
The second issue is a legal one. Since the city officer did not know he/she had received the alleged gift, he/she could not have violated the gift laws.
The EDLC stated that the draft advisory opinion was written generally and did not identify the city officer since the intent is to have city agencies change their gift monitoring practice and obtain the receipts for all expenses paid by donors.
After reviewing the draft opinion and discussing the matter, the Commission moved, seconded, and unanimously carried to approve Advisory Opinion 2010-4, as amended.
F. For Decision: Report and recommendation to respond to complainant as to his/her complaint against all Councilmembers regarding allegations of misuse of the Council's Annual Contingency Allowance by all councilmembers
The EDLC reported that a complainant submitted a letter to the Chair and Commission members asking the Commission to investigate all the councilmembers, besides Rod Tam, regarding the use of their Annual Contingency Allowance ("ACA"), the discretionary fund available for expenses related to their Council duties.
The EDLC stated that normally, staff would not bring the issue to the Commission's attention at this time, but in this case the complainant suggests that staff is targeting Councilmember Rod Tam as to his use of the ACA funds.
The EDLC noted he drafted a letter in response which points out that, before the Commission investigates alleged misconduct, it requires facts to support an investigation. In this case, the complainant has not provided any facts regarding the other councilmembers.
The EDLC stated that staff recommends that the letter be signed by the Chair to show that the Commission is reviewing and ensuring proper investigations are conducted.
After reviewing the draft letter and discussing the matter, the Commission moved, seconded, and unanimously carried to approve the letter to the complainant, as amended.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 1:45 p.m.