CITY AND COUNTY OF HONOLULU
Date and Place: September 9, 2008
Standard Financial Plaza
Conference Room, Suite 211
Present: Lex Smith, Chair
Susan S. Heitzman, Vice Chair
Matthew H. Kobayashi
Wayne T. Hikida
Patricia Y. Lee
Charles W. Totto, Executive Director and Legal Counsel (EDLC)
Stenographer: Norm Fisher
I. CALL TO ORDER
The 416th 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
JULY 8, 2008 MEETING
The minutes of the open meeting of July 8, 2008 were unanimously approved.
III. OLD BUSINESS
A. Setting the dates and times for the October, 2008 and November, 2008 meetings
The EC scheduled the date and time for the October, 2008 meeting for October 16, 2008 at 11:30 a.m. and scheduled the date and time for the November, 2008 meeting for November 7, 2008 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 5, 2008 regarding the following agenda items:
A. Administrative news
The EDLC directed the EC's attention to a series of graphs showing last fiscal year's statistics compared with prior years in the categories of Advice Requests and Complaints Received, Complaints Investigated, Formal Advisory Opinions, Mandatory Ethics Training, Voluntary or Specialized Ethics Training, New Employee Ethics Orientation, Mandatory Ethics Re-training, Financial Disclosure Statements Reviewed, and Web Site Hits.
The EDLC reported that 84 lobbyists registered with the Commission on behalf of 81 clients and staff reviewed 85 lobbyist annual reports. The EDLC also stated that staff had 3 articles in the Human Resources Newsletter, the Commission met 9 times, and staff testified on 5 bills at the Council and the Legislature.
The EDLC commented that although the number of requests declined in FY 2008, the number of complaints investigated held steady.
B. FY 2010 budget
The EDLC reported that barring unforeseen circumstances, the budget should be sufficient. The EDLC stated that the administration may request a 3% cut in operating expenses in both FY09 and FY10.
V. EXECUTIVE SESSION SUMMARY
A. Approval of the minutes of the executive session of the July 8, 2008 meeting
The minutes of the executive meeting of July 8, 2008 were unanimously approved.
The EDLC referred to his confidential memorandum to the EC members dated September 5, 2008.
B. Report regarding a complaint against a Commission staff member
The Commission deferred this matter to the October 16, 2008 meeting.
C. Report and recommendation regarding probable cause to find a violation of RCH Sec. 11-104 (misuse of city resources) by a city officer, EC No. 08-083(o)
The EDLC reported that he reviewed information made available by a city officer through his office that did not relate to a city project or purpose, but to a personal matter and, thus, created a possible violation of RCH Sec. 11-104.
The EDLC noted that the problematic information was promptly removed by the officer once it was brought to his attention.
The Commission noted that one of its ethical guidelines should be updated to clarify the prohibition on disseminating the information at issue in this case.
Upon further discussion, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation to issue a Notice of Possible Violation of the Standards of Conduct ("Notice") to the officer. The Commission stated that the Notice should inform the officer about the specific means by which the problematic information was made available to the public.
D. Report and recommendation regarding probable cause to find a violation RCH Sec. 11-104 (misuse of city resources) by a city employee, EC No. 08-119(w)
The EDLC reported that the Commission received an oral complaint that a city employee used city resources to produce a document containing information not directly related to a city project or purpose and, therefore, may been in violation of RCH Sec. 11-104.
The document contained the city seal, and had the city employee's city contact number, but is only three sentences in length. The EDLC stated that the city employee admitted that he used his city paid time and other resources, including a brief inquiry with a city officer, to generate the document. Requestors were insistent on getting the city officer's reaction and the city employee was trying to be responsive.
The EDLC stated that the city officer believes, in retrospect, that he should have directed the requestors to a non-city organization for a response because the questions were about a non-city issue, not a governance question.
Upon discussing the matter, the Commission instructed staff to draft a letter to the city employee for its review, informing the city employee of proper and improper use of city time, property, equipment, etc., and that the Commission will not take action on this particular matter, but reserves the right to do so in the future, should the need arise.
E. Report and recommendation regarding probable cause to find a violation of RCH Sec. 11-104 (misuse of city vehicle and parking privileges) by a city employee, EC No. 08-091(w)
The EDLC reported that the Commission received a complaint that a city employee would regularly take a former city employee in the city vehicle assigned to the city employee, despite receiving a written policy prohibiting such conduct. In addition, the city employee allowed the former employee to park his personal car in the city employee's parking lot during these lunches. The parking lot does not permit parking for other than city employees.
The EDLC stated that staff's investigation revealed that, about 2 to 3 times each month, the former city employee would arrive at the city employee's place of employment and park his car in the city employee parking lot. The city employee and the former city employee would then drive the SUV assigned to the city employee to another city yard, where they would meet the co-worker for a potluck. This practice began around June 2007 and was stopped by the city employee in May or June 2008, when he overheard another employee mention that the practice was being investigated.
The EDLC stated that the city employee and other witnesses confirmed these basic facts. Also, the city employee acknowledged that he had received a copy of the February 25, 2005 memo entitled "Use of City Vehicles" from his director to all division employees, and was aware that the memo had been posted on the division bulletin board since its transmission. The memo states the division's policy prohibiting the use of city vehicles for other than work related purposes, including personal errands or allowing anyone other than a city employee to ride in a city vehicle. The memo closes with a notice that use of city vehicles for non-city purposes will be investigated and appropriate disciplinary action taken. Furthermore, HRS Sec. 105-1(a) prohibits the use of government vehicles for personal pleasure or use in contrast to official use.
The EDLC stated that based on the information obtained from the city employee, the witnesses and documents, there is ample evidence to support a finding of probable cause that the city employee violated RCH Sec. 11-104 by (1) letting the former city employee park in the city lot, (2) by driving his city vehicle to meet for the potluck, and (3) permitting the former city employee to ride in the city vehicle. As such, the EDLC stated that it is staff's recommendation that the Commission transmit a Notice of possible Violation of the Standards of Conduct ("Notice"), to which the city employee may respond.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation to issue a Notice to the city employee, to which he may respond.
F. Report and recommendation regarding probable cause of a violation of RCH Sec. 11-102(d) (receiving compensation for city work from a non-city source) and RCH Sec. 11-104 (misuse of city position) by two city employees, EC No. 07-005(w)
The EDLC reported that this matter arises from a case involving allegations of retaliation against a former city employee. The former city employee's lawsuit was settled before trial. In preparation for the trial of the case, the former employee's attorney ("the Attorney") subpoenaed a number of city employees to testify as witnesses at trial. Per court rule, when the witnesses were served with the subpoenas, they were also given a witness fee check in the amount of $44.00.
The EDLC stated that none of the witnesses who were subpoenaed had to testify because the case was settled before trial. In January 2007, the Attorney submitted a complaint to the Commission, requesting that the EC look into why a number of the witnesses had not returned the witness fee checks to his office, since they had not been required to appear at trial.
The Commission staff sent emails to the witnesses and essentially asked them to reimburse the Attorney's firm for the $44 witness fee if they had cashed the checks, or to confirm that they had either returned or destroyed the checks if they were not cashed. Staff explained that the retention of the checks could constitute a violation of the city's ethics laws. After receiving this email, most of the witnesses confirmed that they had returned their checks. However, two city employees informed staff that they did not believe that they should be required to return the checks.
The EDLC stated that the two city employees were designated as witnesses as a direct result of their city employment and subpoenaed to testify. As such, they received the $44.00 witness fee. However, neither of the two city employees had to testify at trial and neither lost any city pay or was required to take personal time as a result of being subpoenaed. Consequently, the two city employees personally received $44.00 that they would not otherwise have received but for their city employment.
The EDLC stated that this constitutes a violation of RCH § 11-104 because it amounts to the securing of a personal gain, or the personal use of what would otherwise be a city resource, attributable to their city positions. Furthermore, the two city employees' retention of the witness fees can reasonably be construed as compensation from a non-city source for the performance of official services, which would constitute a violation of RCH § 11-102(d).
Therefore, the EDLC stated that staff recommends that the Commission find that there is probable cause to believe that the two city employees have violated RCH §§ 11-104 and 11-102(d) and that Notices of Potential Violation of the Standards of Conduct ("Notice") be issued to them.
After discussing the matter, the Commission moved, seconded, and unanimously carried to adopt staff's recommendation to issue Notices to the two city employees informing them of the allegations and basis of the violations, and informing them that they should return the $44 witness fees to the Attorney, or give the $44 witness fees to the city general fund.
The EC moved, seconded, and unanimously carried to adjourn the meeting. The meeting was adjourned at 12:53 p.m.