CITY AND COUNTY OF HONOLULU
Date and Place: October 31, 2006
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Chair
Raymond H. Fujii, Vice Chair
Susan S. Heitzman
Wayne T. Hikida
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
Also Present: Ms. Inge Werner, only for Agenda Item V.B.
I. CALL TO ORDER
The 400th meeting of the Ethics Commission (Commission or EC) was called to order at 11:37 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE SEPTEMBER 19,
The minutes of the open meeting of September 19, 2006 were unanimously approved as corrected.
III. OLD BUSINESS
A. Confirming the date and time of the November 28, 2006 meeting and setting the date and time for the January, 2007 meeting.
The EC confirmed the date and time for the November 28, 2006 at 11:30 a.m. meeting and set the date and time for the January 10, 2007 at 11:30 a.m. meeting in the Standard Financial Plaza Conference Room, Suite 211. (NOTE: There is no meeting scheduled for December 2006).
IV. NEW BUSINESS
A. Administrative news
The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated October 26, 2006 outlining the ethics training conducted to date in fiscal year 2007.
B. Proposed FY08 Budget
The EDLC directed the Commissionís attention to a copy of a memorandum from Mary Pat Waterhouse, Director, Department of Budget and Fiscal Services (BFS), to Chair Lex Smith stating that the EC will be informed of BFSís position regarding its budget request in mid-December and will be able to discuss the budget with the Managing Director in January 2007.
C. Status report regarding the memorandum of understanding (MOU) between COR and the Commission regarding their organizational relationship
The ELDC reported that the MOU was agreed to by COR and the Commission at the last meeting. It also required approval by BFS and the Department of Human Resources (DHR). On October 18, the EDLC met with the directors of COR, BFS and DHR. The EDLC stated that DHR had no issues with the MOU, but BFS would not sign-off.
The EDLC stated that this year BFS permitted the Commission to submit its budget directly to BFS. However, after Fiscal Year 2008, BFS will require that COR review and take a position on our budget request. If COR and the Commission agree on the ECís budget request, the joint recommendation will go to BFS. If COR and the EC disagree on the proposed budget, the recommendations from both agencies will be transmitted to BFS for its consideration. BFS would not agree to the MOU because it did not reflect the foregoing process.
The EDLC stated that BFS will treat the budgets for COR and the EC as being independent from one another only in years where there is no ceiling placed on the budget. Such independence would not be considered in years where a budget ceiling is used.
The EDLC stated that COR has agreed to enter into a redrafted MOU that is consistent with the BFS position stated above. After discussion, the EC instructed the EDLC to redraft the MOU consistent with the BFS position.
D. Status report regarding the implementation of a city fraud, waste and abuse hotline
The EDLC reported that several agencies (the EC, BFS, COR, Managing Directorís Office, DHR and the Department of Customer Services) are interested in having the city roll out a hotline to capture employee and public complaints regarding fraud, waste and abuse in government. The types of complaints will be quite diverse including conflicts of interest, misuse of city resources, insurance fraud, discrimination, sexual harassment, other labor relations matters, etc.
The EDLC stated that staff has received a proposal from one company that has been supplying interview and tracking services to city, state and federal agencies, as well as private corporations in Hawaii and around the world, for over 20 years. The company also offers help in promoting the new service.
The EDLC stated that staff has contacted ethics agencies in Atlanta and San Diego, which started using this companyís services over the last year. They find the services to be useful in fielding and resolving complaints. They have used the information to track and correct specific problems in different agencies. It has not dramatically increased the number of ethics complaints, but sexual harassment and discrimination charges have significantly increased. The EDLC stated that these latter issues are handled by DHR in Honolulu.
The EDLC stated that staffís current task is to find out what the departments see as their roles in and concerns about the hotline process. The unions will also need to be informed of the project.
The EC moved, seconded, and unanimously carried to go to the executive session.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the September 19, 2006 meeting
The minutes of the executive session of September 19, 2006 were approved as amended to reflect corrections.
B. Report regarding complaint of possible violation of RCH Sec. 11-104 (unlawful special treatment) by certain city officers, EC No. 06-067(w)
The EDLC reported that Ms. Inge Werner complained that four city officers violated the ethics laws when they denied her negligence claim against the city. The EDLC stated that COR personnel denied the claim when Ms. Werner failed, after several requests by COR personnel, to submit her medical records and bills so that COR could determine the nature of the injury and the potential cost to the city. The city officers met with Ms. Werner and reiterated the reasons why the city could not process her claim. Ms. Werner believes these officers treated her unfairly and rudely.
The EDLC stated that, after investigating the complaint, Ms. Werner was informed by letter dated June 27, 2006, that the EC staff found no evidence of an ethics violation by any of the city officers. The EDLC stated that after meeting with Ms. Werner once more in July 2006, staff conducted further investigation, and responded to Ms. Werner by letter dated September 18, 2006, again informing her that staff still was unable to find any evidence of an ethics violation. In addition, staff requested that Ms. Werner inform the Commission whether she desired to address the Commission.
Ms. Werner presented herself at the October 31, 2006 meeting without providing prior notification. Nevertheless, the Commission decided to hear Ms. Wernerís comments and concerns.
Ms. Werner explained the difficulties she had in pursuing her negligence claim against the city, which was denied by COR. Although she stated that she did not produce the medical bills and reports required by COR before the claim could be analyzed, she felt that at each meeting with the four city officers she was treated unfairly and rudely as further described in her letters, which had been submitted to the Commission.
Chair Smith explained to Ms. Werner that the EC had no power to accept or deny her injury claim and that the purpose of hearing her complaints and concerns was to determine whether any of the four city officers had violated an ethics law. He also noted that the city ethics laws are narrow, especially when contrasted with the broad meaning of ďethicsĒ as used in common speech, and that the EC must focus on specific instances of misuse of city resources or conflicts of interest.
Commissioner Heitzman asked Ms. Werner what she would like to see happen as a result of her ethics complaint. Ms. Werner replied that she was not seeking money for her injury because Medicare had covered past expenses. Ms. Werner stated that the public should not be treated in the way she had been. To prevent such treatment, she suggested that minutes or tape recordings of meetings with city officers be used and that all members of the public should be treated with respect.
Commissioner Bond, as well as the other commissioners, expressed concern that Ms. Werner felt she had been mistreated in her dealings with the city officers.
Ms. Werner was then excused from the meeting in order that the Commission could deliberate.
After discussion, the EC moved, seconded and unanimously carried to respond by letter to Ms. Werner, thanking her for bringing her concerns to the Commissionís attention, commiserating with her that she was treated disrespectfully, but informing Ms. Werner that the EC has no factual or legal basis to find that any of the city officers committed any ethical wrongdoing.
C. Proposed resolution for subpoenas regarding possible violations of RCH Sec. 11-104 (use of city position or resources for private gain) by a city officer, EC Nos. EC 116(w) and 06-143(w)
The EDLC reported that staff requests that this matter be continued as the issues may soon be resolved.
D. Proposed resolution for subpoenas regarding the possible violation of RCH Sec. 11-104 (misuse of city position or resources for personal benefit) by a city employee, EC No. 05-169(w)
The EDLC reported that the Commission received a complaint that a city employee was making unnecessary work-related trips for which he was compensated by wages and mileage reimbursement.
The EDLC stated that during his investigation he offered to work with the departmentís administrative services officer and other staff at the department to investigate this case. The EDLC stated that he thought this might be a good case to experiment having the EC staff monitor the investigation being conducted by the department, as departmental expertise would be needed to determine whether it was reasonable for the city officer to make the trips; expertise which the EC staff lacked.
The EDLC stated that the department has completed its investigation and is in the process of working with DHR to recommend discipline to the departmentís director. The EDLC stated that when he requested to review the investigative report, he was told by DHR that the EC would not be permitted access unless approved by COR. This led to a discussion with a representative of COR to permit the ECís review. The EDLC was informed that until COR opines on the Commissionís legal right to review the investigative files of another department, the Commission may have to subpoena documents and witnesses. Staff presented a written resolution defining the nature and scope of the investigation and the need for the subpoenas.
After discussion, the EC moved, seconded and unanimously carried to approve the resolution defining the nature and scope of the investigation and to subpoena documents and witnesses. However, the Chair requested staff to exercise all alternate avenues to obtain the documents and witnesses before issuing subpoenas.
E. Proposed resolution for subpoenas regarding possible violations of RCH Sec. 11-104 (use of city position or resources for private gain) by city employees, EC Nos. 06-101(w) and 06-146(w)
The EDLC reported that a complaint was filed against a city employee alleging that he used his city work time, city personnel and city resource to perform personal business activities. The complaint against another city employee alleges that he received pay for work hours where he was not doing his job.
The EDLC stated that staff has begun its investigation into the allegations. However, based on CORís informal opinion that the Commission may have to issue a subpoena as stated in agenda item V.D, above, staff requests that the Commission pass the proposed resolution defining the nature and scope of the investigation and to subpoena witnesses and documents in these two cases.
After discussion, the EC moved, seconded and unanimously carried to approve the resolution defining the nature and scope of the investigation and to subpoena witnesses and documents in these two cases. However, the Chair requested staff to exercise all alternate avenues of obtaining the documents and witnesses with COR prior to issuing the subpoena.
The EC moved, seconded, and unanimously carried to return to the open session.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 2:20 p.m.