MINUTES
ETHICS COMMISSION
CITY AND COUNTY OF HONOLULU

Date and Place:

August 21, 2001
Standard Financial Plaza
Conference Room, Suite 211

Present:

Lolinda D. Ramos, Chair
Lorene K. Okimoto, Vice-Chair
Susan S. Heitzman
Robin David Liu
Charles W. Totto, Executive Director and Legal Counsel

Excused:

Ke-ching Ning

Stenographer:

Donalyn K. Keli'ipule'ole

The 351^st meeting of the Ethics Commission (Commission or EC) was called to order at 11:34 a.m. by the Chair. She welcomed Corporation Counsel David Z. Arakawa and Cheryl K. Okuma-Sepe, Director, Department of Human Resources (DHR). She remarked that agenda items would be addressed out of order with matters to be discussed by Mr. Arakawa and Ms. Okuma-Sepe presented first.

OPEN MEETING

OLD BUSINESS

1. Ordinance 01-35, mandatory ethics training

The Executive Director and Legal Counsel (EDLC) stated that the Commission is eager to begin providing mandated ethics training. The Chair noted that the media has already inquired about the start date of that training. Mr. Totto requested information from Mr. Arakawa and Ms. Okuma-Sepe on how the EC should proceed. Mr. Arakawa apologized for the delay in responding to the Commission on this matter. He explained that the EDLC's inquiries to Ms. Okuma-Sepe and her answers had been forwarded to him for a response which he did not provide until August 16.

Although there had been some discussion on this issue between Mr. Arakawa, the EDLC and Ms. Okuma-Sepe, Mr. Arakawa believed that some clarification was needed. He explained that DHR would be handling the logistics of arranging the meetings (i.e., obtaining facilities) and offered to routinely brief the Commission on the status of coordinating and providing the training. Mr. Arakawa noted that the city provides other mandatory training: prevention of sexual harassment (POSH), workplace violence, and substance abuse. POSH training is offered every two years. Workplace violence is a newly offered topic. He indicated that he provided POSH education and offered to assist with developing content materials for the ethics trainings.

DHR also provides a quarterly managers' forum at which Mr. Totto did a brief presentation this morning. It is not mandatory that all managers attend. However, the city's mandatory training programs covers all employees. The Commission should be able to provide training at DHR sponsored sessions with a minimal cost. Mr. Arakawa stated that Ms. Okuma-Sepe provided a schedule of DHR's training events, but it was unclear which sessions could be used for ethics training.
The Corporation Counsel stated that Ms. Okuma-Sepe was excited about the possibility of delivering training with streaming video via the internet. The article, "The Training Channel," by Michele Mariani (Governing. July 2001. p. 38-9.) was distributed. Mr. Arakawa acknowledged that the development of internet training, however, was still in its infancy. In response to the Vice-Chair, Director Okuma-Sepe stated that all training would not be offered on the internet. Training topics would be evaluated to determine the best delivery method.

Mr. Arakawa believed that a standardized training video is important. The city offers some POSH training by video. He thought that attendees might be less likely to ask questions at a live presentation given the sensitive nature of ethics issues than attendees of other types of training.

Mr. Totto stated that his recollection was that Ms. Okuma-Sepe had indicated that DHR would not assist the EC in providing training. Therefore, he had sent an email dated July 19, 2001, to Ms. Okuma-Sepe requesting information so that the EC staff could begin arranging the training on its own. He noted that the Commission had already lost two months to provide training for this fiscal year. The law mandating ethics training took effect on July 1, 2001. The EDLC restated to Mr. Arakawa and Ms. Okuma-Sepe that the content of the training had been developed for some time now. Training would be based upon the EC's Plain Language Guide.

Ms. Okuma-Sepe denied refusing assistance and stated that she had only expressed concern about the demands any DHR assistance would place on her staff. Again, Mr. Arakawa offered to regularly brief the EC on the status of training to avoid any misunderstandings and accepted responsibility for the delayed response to Mr. Totto's questions. He added that Penelope Chu, Chief, DHR Personnel Development and Training Branch, had been removed as the contact for the EC because of concerns raised by an attorney representing a party whom Ms. Chu had filed an ethics complaint against. Although no improper actions may have occurred, it was decided that the coordination of the training would be handled by the DHR director.

In response to Mr. Totto on the date of the next DHR training at which the EC could jointly provide its own training, Ms. Okuma-Sepe reported that five training sessions have been scheduled for the remainder of the year, although it was unclear which of those sessions were available for ethics training. Two sessions have been set for September 11 and 24, 2001. The Corporation Counsel explained that he did not forward the training schedule provided by DHR to the EC because it did not indicate which sessions were intended for managers. He said that a segregated list would be provided later.

The Chair explained that meeting materials are mailed to the commissioners two weeks before a meeting and requested that Mr. Arakawa provide any new information for the EC's review to the EDLC by that deadline. The Vice-Chair expressed her thanks to Mr. Arakawa for his offer to regularly brief the Commission. However, she noted that those briefings would not preclude the authority granted to the EDLC to act or solicit information on the Commission's behalf.

2. Further report regarding potential violations of RCH § 11-102(c) and ROH § 3.8.2(c) (city officer prohibited from appearing before city agencies on behalf of private interests) by an officer
The Corporation Counsel thanked Mr. Totto for his efforts in proposing an amendment to ROH § 3.8.2(c) relating to this issue. The EDLC noted that this matter is on the executive session agenda and cautioned to generally discuss this case during the open meeting without mentioning identifying facts of the case. The Vice-Chair questioned why the EC's efforts (to resolve the apparent conflict in law that restricts certain volunteer officers from appearing before city agencies and solicit input from affected professionals) seemed to have taken on a negative aspect. Approval of the EC's proposed amendment by the city administration has been deferred until after it meets with the EC and representatives of professional groups who may be affected by the change. A meeting has been set for Thursday, September 6, 2001, at 2:00 p.m. at Honolulu Hale.

Mr. Arakawa responded that the usual process is to first meet with the affected parties to flesh out the issues before submitting a proposal to the Council. He suggested a committee of no more than a quorum (four commissioners) be created to address this issue. Otherwise, no more than two members may attend any meeting without violating the law governing board and commission meetings. He would like to see the proposal set for first reading at the Council meeting set for October 17, 2001. Mr. Arakawa said that Council Chair Jon C. Yoshimura's presence at the meeting should also be considered since the Council appoints and confirms board and commission members, too.

3. Photo session
The Corporation Counsel said that he would like to arrange a photo taking session of commissioners at the next EC meeting. Photographs are usually displayed in the lobby of the administrative department or may be displayed at the Commission office.

4. New commissioners
In response to the Vice Chair, Mr. Arakawa reported that Mayor Jeremy Harris and Managing Director Benjamin B. Lee are reviewing candidates and hope to appoint new commissioners by the end of this year. The Chair requested that the Corporation Counsel accelerate the process, if possible. She observed that the EC currently has two vacancies and that the Vice Chair and Commissioner Ning are anxious to be replaced. Their terms will expire at the end of the year. Director Okuma-Sepe excused herself from the meeting at this time.

5. Further report on the request for advice regarding possible violations of RCH § 11-103 (disclosure of conflicts of interest) by two officers
Since the denial of a request for non-city legal representation was publicly disclosed at a recent Council meeting, the EDLC asked the status of the appointment of counsel for Councilmembers Rene M. Mansho and John F. DeSoto. Mr. Totto clarified that the EC was not opposed to representation by the city. Mr. Arakawa stated that he had believed that the Commission did not want the Department of the Corporation Counsel (COR) to represent city officers and employees before the EC. Remarks such as "Whose side are you [COR] on?" and the possibility of his becoming a witness on a case represented by COR led to the request for outside counsel. He indicated that he would not disclose in anymore detail his reasons for the request. Mr. Arakawa added that COR deputies would be appointed by the end of next week. There had been a delay in the appointments because of personnel shortages and changes at COR.

Mr. Arakawa excused himself from the meeting at this time. The EDLC responded to a few of the issues raised by Mr. Arakawa. Mr. Totto stated that the EC would not be able to complete its training of approximately 1,600 people based on the timetable of DHR's current training schedule for this year. Since two months for this fiscal year has already been lost, the EC's timetable for training has had to be readjusted from one biweekly training session to one every 1½ weeks to complete training within two years as mandated by law. Furthermore, most of DHR's training is only for new employees. The target group of EC's training includes current and new employees. Lastly with regard to the Corporation Counsel's offer to assist with the development of training materials, Mr. Totto reported that no response was ever received from COR on the Plain Language Guide which had been referred for comments before its distribution to city officers and employees in April 2001 and again by email in June 2001.

The Commission unanimously adopted the open meeting minutes of July 17, 2001.

6. Confirming the date and time of the September meeting
The Commission rescheduled the next meeting from September 18 to Friday, September 28, 2001, at 11:30 a.m. in the Standard Financial Plaza, Conference Room of Suite 211.

NEW BUSINESS

1. Setting the date and time for the October meeting
The Commission voted to tentatively set the following meeting for Friday, October 19, 2001, at the same time and place as the September meeting.

2. Administrative news
Mr. Totto referred to his memoranda of August 8 and 15, 2001, on the agenda items for this meeting and emphasized or provided an updated report on certain items.

a. Requests for advice
The EDLC noted that a 35% increase in the number of requests for advice received for fiscal year 2001 had been reported by the media (KGMB). He noted that there were many pending cases.
Commissioner Heitzman indicated that she would like to learn more about the EC by volunteering at the EC office after next month. The EDLC welcomed her offer.

b. Website
Mr. Totto reported that visits to our site has doubled since last year at this time. There no longer are advertisements by private businesses on the website because the contract between the city and the agency that managed the city's website which included such advertising has expired.

EXECUTIVE SESSION SUMMARY
The EC moved into executive session to pursue confidential matters and seek the advice of its attorney. The minutes of the executive session of July 17, 2001, were unanimously approved.

The EDLC reported on a recent visit he had by a council legislative aide regarding how to strengthen the ethics laws. Mr. Totto discussed his suggestions with the EC.

In a second matter, he referred to a request for reconsideration of an advisory opinion regarding the possible violations of RCH § 11-102(c) and ROH § 3-8.2(a) (conflicts of interest) and RCH 11-101 (apparent conflicts of interest) by an officer and related matters. The Commission unanimously approved the draft of a letter which advises the officer of its decision to deny the officer's request for reconsideration. The officer's request not to publish the advisory opinion was also denied. However, the EC agreed to provide the officer with the opportunity to review a proposed version of the opinion for publication, suggest changes or resubmit the request for non-publication with supporting factual and legal analysis.

In a third case, the EDLC referred to violations of RCH § 11-102(e) and ROH § 3-8.2(c) (city officer shall not appear before city agencies on behalf of private interests) by an officer. As previously discussed in the open session of this meeting, Mr. Totto suggested that the Commission create a committee to address the issues arising from the EC's efforts to amend the law on this matter. The Commission unanimously voted to form a committee consisting of the Chair and Commissioner Heitzman. They will attend the aforementioned meeting set for September 6, 2001, at Honoluu Hale with the city administration and representatives of architect and engineer professional groups to discuss the proposed amendment.

Another matter regarding a request for an advisory opinion regarding potential apparent or real conflicts of interest under RCH § 11-101 and RCH § 11-102(c) by an officer in handling personnel matters of union-member employees within the officer's department was postponed to allow the EDLC more time to obtain additional information. The Vice Chair excused herself from the meeting at this time.

Three other matters continued to be postponed. The appointment of new legal representation in the matter concerning possible violations of RCH § 11-103 (disclosure of conflicts of interest) by two officers is still pending. A response to the EC's request for an opinion (dated November 9, 1998) to the Hawai'i Office of Information Practices (OIP) has not been received. Finally, information on a personnel matter is still being collected. By unanimous vote, the Commission returned to the open meeting.

ADJOURNED
The meeting was adjourned at 1:30 p.m.