CITY AND COUNTY OF HONOLULU
Date and Place: September 13, 2010
Standard Financial Plaza
Conference Room, Suite 211
Present: Susan S. Heitzman, Chair
Patricia Y. Lee, Esq.
Charles Gall, Esq.
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 434th 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
AUGUST 18, 2010 OPEN MEETING
The minutes of the open session of August 18, 2010 meeting were unanimously approved.
III. OLD BUSINESS
A. Setting the dates and times for the August and September, 2010 meetings
The EC rescheduled the date and time of the October 13, 2010 meeting to October 11, 2010 at 11:30 a.m., and scheduled the date and time for the November, 2010 meeting for November 22, 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 September 2, 2010 regarding the following agenda items:
A. Administrative News
The EDLC introduced the EC's new intern, Eric Irwin, to the Commission.
New attorney position for the EC
The EDLC reported that the Ethics Commission's attorney position is still moving along. As soon as the position description classification has been approved, the EDLC will immediately post an advertisement regarding the position.
The EDLC reported that the Commission budget will be reduced 2%.
COGEL Conference held in Washington, D.C.
The EDLC reported that due to budget constraints, the city is not allowing any travel, except in emergency situations. However, the EDLC is attempting get the city to approve payment for the GOGEL registration fee, which amount to approximately $530. The EDLC stated that he would be willing to travel on his accumulated bonus miles and will stay with relatives.
The commissioners were concerned that the city administration understand that the COGEL conference offers the Commission a unique opportunity to observe and discuss the best practices in ethics regulation. Up-to-date ethics information and guidance is especially important now because the EC has 4 new members, the term of the longest serving member ends on December 31, and the Commission will soon have a new Chair and Vice Chair. The Commission also noted it would be fair for the city to release Commission funds to pay for the EDLC's travel.
The EC moved, seconded and unanimously carried that the EDLC should request the city release funds for the EDLC's attendance at the COGEL conference.
B. For decision: Report and recommendation regarding a procedure for the release and publication of formal advisory opinions
The EDLC reported that two issues the Commission faces when it renders a formal advisory opinion are under what circumstances and to whom the opinion may be disclosed. The Commission's opinions inevitably contain personal information about the work conduct of city officers and employees.
The EDLC stated that the Hawaii open records law establishes that a government officer or employee has a limited personal privacy right in work conduct and performance records. Therefore, before disclosing personnel information, the Commission is required to take certain steps under the open records law. As such, staff has drafted a Policy and Procedure for the Release and Publication of Formal Advisory Opinions for the EC review and consideration.
The EDLC stated that the draft procedure is intended to clarify the steps the Commission takes in publishing and transmitting formal advisory opinions, and to incorporate the relevant legal analyses that are required.
After reviewing the draft procedure provided by the Commission's staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to accept the draft procedure state that, if the Commission finds that information identifying the violator may be released, it shall do so in the published opinion without a request from any person.
The Commission further moved, seconded, and unanimously carried that the draft procedure also include language that would reflect that the subject of the advisory opinion will be informed 10 days prior to the actual publication of the advisory opinion.
C. Informational: Report on Resolution 08-232, CD1 (Charter amendment to prohibit voting by councilmembers who have conflicts of interest) and Resolution 09-336, CD1 (Charter amendment to prohibit pre-employment conflicts of interest)
The EDLC reported that with the exception of councilmembers, city officers and employees who have a conflict of interest may not participate in the matter that creates the conflict. The Charter allows councilmembers to vote on all Council matters. However, when councilmembers have conflicts of interest, but vote any way, it undermines the public's trust in the councilmember and the integrity of government processes.
The EDLC stated that over the last 3 years, the Commission has been working with the Council on a resolution for a Charter amendment to prohibit councilmembers from participating in or voting on bills or resolutions where they have a conflict of interest. Resolution 08-232, CD1, was held in committee in August because Chair Todd Apo wanted to develop the law through the Rules of the Council rather than a change to the Charter. The EDLC stated that staff will work with the Council to draft reasonable rules regarding conflicts of interest.
The EDLC stated that Resolution 09-336, CD1, was a result of concerns that a department director who has recently arrived form the private sector may have a conflict of interest between the former employer and his/her current city duties. To that end, the Council has passed Resolution 09-336, CD1, which will be on the fall ballot.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the August 18, 2010 meeting
The minutes of the executive session meeting of August 18, 2010 were approved. (Commissioner Gall abstained from the vote).
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The EDLC referred to his memorandum dated September 2, 2010 regarding the following agenda items:
B. For Decision: Report and recommendation regarding probable cause of a violation of RCH Sec. 11-102(c) (financial conflict of interest) and by a city officer
The EDLC reported that the Commission received a complaint alleging that a city officer used his/her city position to oppose a business seeking a liquor license. The city officer had drafted and signed a letter in opposition using his/her city title and city letterhead. The city officer also attended the HLC hearing on the licenses request and stated his/her objections to granting the liquor license.
The EDLC stated that the city officer's family business owns and operates an apartment building less than 500 feet away from the licensed property. The HLC presumes that property owners within 500 feet of an address for which a liquor license is sought has an interest in the license and, therefore, notifies those owners of the hearing on the license application. The city officer's most recent financial disclosure statement shows that he/she owns 50% interest of the family business.
The EDLC stated that looking at the facts of this case, the city officer has a financial interest in a family business that is worth at least $500,000 that may be affected by the granting of the liquor license. The family business includes the ownership and rental of apartments. Those apartments are within the 500 foot radius that the HLC uses to notify residents and businesses whose business interests or living conditions may be changed by the approval of the liquor license. The potential impacts from a liquor licensee could lower the value of the apartment building and, therefore, reduce the value of city officer's family business. As a result, he/she should have not participated in the liquor license issue.
Therefore, the EDLC stated that staff believes there is sufficient evidence to establish probable cause that the city officer violated RCH Sec. 11-102(c) by taking official action in a matter where he/she had a financial conflict of interest. As such, staff recommends that the Commission move for and require that a Notice of Possible Violation of the Standards of Conduct (NOPV) consistent with the analysis above be transmitted to the city officer.
After reviewing the information provided by the Commission's staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to accept staff's recommendation, and instructed staff to issue a NOPV to the city officer.
C. For Decision: Report and recommendation regarding probable cause of 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 case.
The EDLC reported that at the August 18, 2010 meeting, the Ethics Commission Outside Counsel (ECOC) reported that the case is now in the probable cause determination phase, where the Commission is being asked to determine whether there is probable cause to believe that city officer has committed a violation of the city's ethics law. The Commission deferred this issue pending additional information from the staff.
After reviewing the additional information provided by the Commission's staff, and discussing the matter, the Commission moved, seconded, and unanimously carried to find that there is insufficient evidence to find probable cause of a violation at this time. However, the Commission will draft an advisory opinion regarding the gift issues that have arisen in this case in order to be transmitted to the public and transmitted to city officers and employees.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:50 p.m.