CITY AND COUNTY OF HONOLULU
Date and Place: October 18, 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
Wayne T. Hikida
Cynthia M. Bond
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Matthew J. Viola, Outside Counsel
Stenographer: Norm Fisher
I. CALL TO ORDER
The 389th meeting of the Ethics Commission (Commission or EC) was called to order at 11:40 a.m. by the Chair.
II. APPROVAL OF THE MINUTES OF THE OPEN SESSION OF THE SEPTEMBER 28, 2005
The minutes of the open meeting of September 28, 2005, were unanimously approved.
III. OLD BUSINESS
A. Confirming the date and time of the November 15, 2005 meeting and setting the date and time for
the December 2005 meeting
The EC rescheduled the November 15, 2005 meeting to November 17, 2005 at 11:30 a.m. and set the date and time for the December 13, 2005 at 11:30 a.m. meeting in the Standard Financial Plaza Conference Room, Suite 211.
IV. NEW BUSINESS
A. Administrative news
The Executive Director and Legal Counsel (EDLC) referred to his memorandum dated October 11, 2005, outlining the total amount of web site hits and ethics training conducted to date in fiscal year 2006.
B. Report on Bill 52, changing the regulation of lobbyists from the Council to the Ethics Commission
The EDLC reported that the bill was passed out of the Executive Matters Committee last week. Chair Liu asked the EDLC if he felt that the current lobbyists regulations should be changed. The EDLC stated that it is his opinion the current regulations are unclear and should be made a little easier to understand.
C. Report on Fiscal Year 2007 operating budget
The EDLC reported that the ECís budget for FY07 is the same as the current budget. The EDLC stated that given the present number and types of cases, the budget should be sufficient.
D. Report on the meeting of the Commission staff with White Collar Crime units of HPD and
theProsecuting Attorneyís office
The EDLC reported that the three agencies met to discuss how each might work more effectively with the others to handle cases involving the misuse of city resources, especially time and property.
The EDLC stated that he learned a few things about how HPD operates as well as how the White Collar Crime Unit of the Prosecutors Office works. The EDLC stated that he does not expect to exchange a large number of cases between HPD, the Prosecutorís Office and EC, but was able to establish a better understanding when to exchange or recommend forwarding cases to one another.
The EDLC reported that staff intends to have a similar meeting with Corporation Counsel, the City Auditor, the Internal Control Division of the Department of Budget and Fiscal Services and the Labor Relations Division of the Department of Human Resources. The EDLC stated that, for cases with issues that cross the conventional agency boundaries, it should be useful for each agency to have a general understanding of the assistance available form other departments.
E. Report and recommendations regarding adopting Guidelines on Gifts to City Agencies
The EDLC requested that this topic be deferred as he has recently been informed that Councilmember Charles Djou will be submitting a bill that may have a significant impact on the ECís proposed guidelines. The EDLC reported that Councilmember Djouís bill stems from the Councilís resolution on gifts to the City and other issues regarding city officers and employees soliciting possible donors to the City.
The EDLC stated that it may be better to have an opportunity to fully review Councilmember Djouís bill before continuing with discussions of the ECís proposed City gift guidelines.
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 28, 2005 meeting
The minutes of the executive session of September 28, 2005 were unanimously approved.
B. Annual performance review of the Executive Director and Legal Counsel
Mr. Fujii reported that he took all of the commissionerís comments and compiled it into one evaluation of the EDLC. Mr. Fujii then circulated a copy of his final evaluation to each Commissioner for their review and/or comments.
Upon review, Chair Liu signed the final evaluation as the appointing authority, which was accepted by the EDLC.
C. Further report on miscellaneous legal issues arising if the Commission is authorized to impose civil fines
The EDLC directed the ECís attention to the memorandum on this subject from outside counsel Matt Viola dated October 9, 2005. Mr. Violaís memorandum summarizes four main legal issues relating to a Charter provision allowing the Commission to impose civil fines. Mr. Viola concluded by saying that the Corporation Counsel deputies who have expertise regarding all of the issues outlined above have offered to attend the next Commission meeting to discuss these issues and answer questions relating to the civil fines issue.
After discussion, the EC determined that it was not necessary to invite the Corporation Counsel deputies at this time.
D. Report and recommendation regarding the possible violation by a city employee of RCH
Section 11-104 (misuse of city position or resources) by increasing overtime payments to
employees; EC No. 04-118(o)
The EDLC reported that this case examines whether the supervisor secured an unwarranted advantage for certain employees by introducing an overtime incentive plan intended to improve morale and operating efficiency. The plan allowed 13 employees to earn $57,000 in allegedly unauthorized overtime pay.
The EDLC stated that the primary question is whether the supervisor knew or should have known that he did not have authority to implement the incentive plan. If he knew or should have known that he did not have the discretion to implement the incentive plan, he would be in violation of RCH Section 11-104. The EDLC stated that, should the Commission find that the supervisor violated the standards of conduct, it will need to decide what discipline to recommend to the department head.
Upon discussion, the EC moved, seconded, and unanimously carried to recommend a suspension without pay of 5-10 workdays for the supervisor.
The EC moved, seconded, and unanimously carried to recommend that the department should seek legal advice whether it may discipline the supervisor as recommended.
The EC moved, seconded, and unanimously carried to recommend that the department should: (1) review the role of management in failing to detect the unauthorized overtime, (2) work with the internal auditor to correct the payroll reporting process and (3) determine if a memorandum of understanding should be created between the union and the department.
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 1:50 p.m.