CITY AND COUNTY OF HONOLULU
Date and Place: November 3, 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.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Ethics Commission Outside Counsel (ECOC)
Stenographer: Norm Fisher
Excused: Matthew H. Kobayashi
I. CALL TO ORDER
The 426TH meeting of the Ethics Commission (Commission or EC) was called to order at 11:45 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE
SEPTEMBER 22, 2009 MEETING
The minutes of the open meeting of September 22, 2009 were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time for the December 1, 2009 and setting the date and time for the January, 2010 meeting
The EC confirmed the December 1, 2009 meeting, and scheduled the date and times for the December, 2009 for December 1, 2009 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 October 30, 2009 regarding the following agenda items:
A. Administrative news
The EDLC informed the Commission on the number of cases pending and the ethics training conducted to date in fiscal year 2010.
The EDLC informed the Commission that furloughs for city employees will begin on July 10, 2010.
B. Legal services for the Ethics Commission
The EDLC reported that in its administrative role for the Commission, the Department of Corporation Counsel (COR) has asked the Commission to consider whether there are ways to provide excellent quality legal services to the EC other than using an outside attorney. The EDLC stated that in working with COR, staff has developed the following options that the EC may want to consider:
1. Status quo: legal services provided by contractor based on a
general scope of services.
2. Legal services provided by contractor for each specific case or project
assigned to the contractor.
3. Personal Services Contract: half-time.
4. Personal Services Contract: less than half-time.
5. Create a paralegal or investigator position.
The EDLC stated that staff will be obtaining more information from COR to allow the EC to weigh the options.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive sessions of the September 22, 2009 meeting
The minutes of the executive sessions of September 22, 2009 meeting were unanimously approved.
The EDLC referred to his memorandum dated October 30, 2009 regarding the following agenda items:
B. Report and recommendation regarding probable cause 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 Commission received a complaint along with documentation supporting allegations that a city officer misused city funds for his/her personal benefit. During the course of the investigation, several other areas of misconduct were revealed, including conflicts of interest, failure to disclose the conflicts of interest, failure to state required business and fiduciary interests in his/her annual financial disclosures and acquiring a financial interest in a business that he/she may have to take official action on.
The EDLC stated that the question at this time is whether there is sufficient information for the Commission to find probable cause that city officer violated the ethics laws.
The EDLC stated that staff reviewed each written reimbursement request for expense charges for the FY2005 through FY 2009 period. From its investigation, staff has discovered the following discrepancies:
1. The city officer paid less for some expenses than he/she charged the city.
2. The supporting documents failed to show that the charges were related to a specific official issue or the city officer's duty. For example, many of the reimbursement requests related to generic topics.
3. The city officer often noted on his/her requests for reimbursement the names of the persons who he/she met with. After reviewing the businesses for which the city officer was or is an officer or director, it became apparent that he/she charged the city for expenses with his/her business associates.
4. The records show that the city officer charged the city for expenses relating to his/her family members.
5. Beginning in 2002, the city officer failed to report on his/her financial disclosures that he/she was an officer or director in 10 businesses and non-profits and failed to report the names of the other officers and directors.
The EDLC stated that based on the foregoing, staff recommends that the draft Notice of Potential Violation presented to the Commission for its review and approval be transmitted to the city officer.
Upon reviewing the draft Notice, the Commission moved, seconded, and unanimously carried to accept the Notice, and instructed staff to issue the Notice of Potential Violation to the city officer.
C. Report and recommendation regarding complaints of misuse of city
resources for political purposes by city officers, EC No. 08-194(w)
The EDLC stated that at the last meeting, several questions were posed by the commissioners related to this matter.
Upon reviewing additional memorandums submitted by staff, the EC decided to discuss this matter further, and continued this matter to the next meeting.
D. Report and recommendation regarding request for advice whether a city officer, may receive a witness fee under RCH Section 11-102(e) (no non-city compensation for doing city work) for providing testimony directly related to his/her city work duties, EC No. 09-073(o)
This matter was reported by the Matt Viola, the Ethics Commission Outside Counsel (ECOC).
The ECOC reported that a city officer is often subpoenaed to testify because of his/her knowledge of relevant city policies and procedures. When he/she is subpoenaed to testify as a witness, in either a deposition or at trial, he/she is ordinarily provided a witness fee, which is required by law. When the city officer receives a witness fee in a matter that is related to his/her official city duties, he/she turns it over to Corporation Counsel, who deposits it in the city's general fund. Corporation Counsel has requested guidance as to whether the city officer and other similarly situated city employees are obligated to turn over the witness fees checks to Corporation Counsel and, if so, what Corporation Counsel should do with the checks.
The ECOC stated that the main question in this matter is whether the city officer is entitled to keep the witness fee, particularly if he/she is actually required to testify in a deposition or at trial.
The ECOC stated that in Advisory Opinion No. 2009-3, the Commission found that the retention of the witness fee constituted a violation of Revised Charter of Honolulu (RCH) § 11-102(d), because the employee's obligation to testify was part of her official duties and therefore she could not receive additional compensation for performing a work-related duty. The ECOC stated that Advisory Opinion No. 2009-3 clearly establishes that a witness fee paid in connection with testimony that a city officer or employee is required to provide as part of his/her official duties constitutes "compensation for such person's services as an officer or employee of the city" and it therefore cannot be retained under RCH § 11-102(d). Therefore, if the Commission's decision in Advisory Opinion No. 2009-3 applies to this case, the city officer would be prohibited from retaining the witness fees she receives to testify in matters that are work-related.
The ECOC stated that based on the Commission's analysis of RCH §11-102(d) in Advisory Opinion No. 2009-3 and the COR opinion that conflicting provisions in Collective Bargaining Agreements cannot supersede the city charter's ethics provisions, staff believes that the city officer, who testifies in a proceeding as part of his/her official duties, is prohibited from retaining a witness fee.
The ECOC stated that based on the foregoing, staff recommends that the draft Advisory Opinion presented to the Commission for its review and approval, be accepted.
Upon reviewing the draft Advisory Opinion, the Commission moved, seconded, and unanimously carried to accept the Advisory Opinion, and instructed staff to issue the Advisory Opinion.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:50 p.m.