CITY AND COUNTY OF HONOLULU
Date and Place: October 28, 2003
Standard Financial Plaza
Conference Room, Suite 211
Present: Robin D. Liu, Chair
Lex R. Smith, Vice Chair
Lolinda D. Ramos
Raymond H. Fujii
Robert J. Fishman
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Esq., Staff Attorney
Stenographer: Norm Fisher
I. CALL TO ORDER
The 369th 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 AUGUST 27, 2003
The minutes of the open meeting of August 27, 2003, were unanimously approved with the following amendments: 1) "Councilmember Fishman" should read "Commissioner Fishman" wherever present; 2) Commissioner Lolinda D. Ramos was present at the August 27, 2003 meeting; and 3) Agenda item IV-C; ninth paragraph: "The EC unanimously approved Councilmember Djou's submission of the resolution to the City Council" should read "The EC approved the concepts included in the resolution to be presented for submission to the City Council by Councilmember Djou."
III. OLD BUSINESS
A. Setting the date(s) and time(s) of the November and December meetings
The EC set the next two meetings for Tuesday, November 25, 2003, at 11:30 a.m. and Tuesday, December 23, 2003, at 11:30 a.m., in the Standard Financial Plaza Conference Room, Suite 211.
IV. NEW BUSINESS
A. Administrative news
1. Request for Advice
The EDLC reported that the current filings of requests and complaints are keeping up with the normal pace of the past two years.
The EDLC reported that the August and September totals were not in the 300 most often contacted City and County of Honolulu websites.
3. Education and Training
The EDLC reported that the mandatory ethics training is continuing. With the help of Commissioner Fujii, the EDLC will be compiling a list of contractors, vendors and consultants to see if they would be interested in basic training in what ethics constraints face city employees.
B. Appointment of additional commissioners
The EDLC reported that he has not heard anything from the Mayor's office, although the Mayor's office is aware of Commissioner Ramos' December 31, 2003 term expiration date.
C. Annual Report for FY 2004
The EDLC directed the EC's attention to the FY 2004 Annual Report.
D. FY 2005 Budget
The EDLC directed the EC's attention to the FY 2005 Budget. The EDLC reported that the EC is asking for approximately $20,000 more in operating expenses than in the past year. The EDLC stated that whether the EC receives the request in additional operating expenses is problematic, as the EC already received a $5,500 cut.
The EDLC reported the budget seeks more money for outside services, especially attorney's services, a raise that would be conditioned on the reallocation of the Legal Clerk III position, and an increase in the budget of about $3,700 so that some of the Commissioners can attend the GOGEL Conference.
Commissioner Fishman stated it is his belief the Legal Clerk III position is not civil service, and the only requirement is that the position be part of the compensation plan. As such, Commission Fishman is of the opinion that changes to the Legal Clerk III position should not require the approval of the Corporation Counsel.
E. Report on Resolution No. 03-240, which would amend the Charter to give the Ethics Commission the authority to fine violators
The EDLC reported Councilmember Djou's resolution regarding the authority to fine has not been heard yet. The EDLC stated that he asked Councilmember Djou's staff about the status of the resolution. Apparently there are five resolutions dealing with charter amendments and all five will be heard at the same time.
F. Report and recommendation on Resolution No. 03-232 – to amend the Charter to require members of the Charter and Reapportionment Commissions to be subject to the ethics laws
The EDLC reported that the major issue in this resolution is whether the Council, as opposed to the Mayor, may remove a city officer for certain law violations. A more narrow issue affecting the application of the ethics laws may also be handled through the resolution.
The EDLC directed the EC to the confidential memorandum dated October 22, 2003. The memorandum notes that under the current law, members of the Charter and Reapportionment Commissions shall not be deemed officers of the city. Because the ethics laws apply only to city officers and employees, the ethics laws do not apply to members of the Reapportionment or Charter Commissions.
The EDLC further reported that members of the 1972 Charter Commission were concerned that certain otherwise qualified members (then and in the future) may be disqualified from serving by various laws.
1. RCH Sec. 13-119 prohibits a city officer or employee from holding more than one office or position in city government. As a result, any city officer or employee would be precluded from membership on the two commissions.
This is still a valid concern. However, if Charter and Reapportionment Commission members were deemed officers only for the purposes of the ethics laws, this restriction would not limit membership because RCH Sec. 13-119 is not a part of the ethics laws.
2. RCH Sec. 11-102(e) used to prohibit officers from representing private interests before city agencies. The 1972 Charter Commission's concern was that many qualified professionals (e.g., architects, engineers, lawyers, etc.) would be excluded from serving on either commission because they routinely represent private interests before city agencies.
However, this restriction was lifted by the passage of Ordinance No. 02-11. ROH Sec. 3-8.2(c) now allows a commission or board member to represent private interests before city agencies, except for the board or commission upon which he or she serves.
After discussing the matter, Commissioner Smith moved that, if there is a hearing, the EC support making members of the Charter and Reapportionment Commission subject to the ethical standards for officers of the city. The EC unanimously approved this motion.
The EC moved into executive session to pursue confidential matters and seek the advice of its attorney.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the August 27, 2003 meeting
The minutes of the executive session of August 27, 2003, were unanimously approved.
B. Policy regarding offering ethics advice when no request for advice has been made to the Commission or a request has been made to another city agency
The EDLC stated that he is seeking discussion and direction from the EC as to how far the staff should reach out to become involved in various types of cases where no direct request for advice has been made to the EC.
Commissioner Fishman stated that he thinks the EC should refer to its powers under the Charter, and stated that he is concerned about the EC becoming the grand inquisitor.
Commissioner Smith stated that he believes it is not the job of the EC to seek out ethics law violators, and feels that the EC should act when somebody follows the procedure of filing a request with the EC.
Chair Liu stated that he believes the EC should represent the public at large, to a great degree, to help the city operate in a manner that best fosters trust by the constituents.
After discussing the matter, the EC decided that this was a subject that it should continue to consider and discuss.
The meeting was adjourned at 1:15 p.m.