Certified Shorthand Reporters Maui Wells Street Professional Center 2145 Wells Street, Suite 302 Wailuku, Hawaii 96793 (808)244-3376 Reporters@Csrmaui.Com

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COUNTY OF MAUl, STATE OF HAWAII

BOARD OF ETHICS

REGULAR MEETING

Held at the Planning Department Conference Room,

250 South High Street, Wailuku, Maui, Hawaii, commencing at 12:38 p.m., on Wednesday, June 8, 2011.

Reported by: Tonya McDade, CSR, CRR Certified Shorthand Reporters Maui Wells Street Professional Center 2145 Wells Street, Suite 302 Wailuku, Hawaii 96793 (808)244-3376 [email protected]

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1 ATTENDANCE l stay here for the rest of my life. It's a nice place 2 BOARD MEMBERS PRESENT: 2 and I love being here. And my passion is I have been Michael Westfall, Chair 3 working lor years with Light Bringers. it's a nonprofit 3 Sheri-Ann Daniels, Member 4 over in Lahaina. Getting more involved in that. Thank Frank Moe. Member 4 Sydney Kikuchi. Member 5 you. Gene Viglione, Member 6 CHAIR WESTFALL: Thank you. And welcome to 5 7 the commission. STAFF PRESENT: 8 The next item is minutes of May II th. 20 II. 6 Gary Y. Murai. Deputy Corporation Counsel 9 They've been circulated. Do I have a motion to accept Adrianne Heely, Deputy Corporation Counsel 7 Angela Andrade. Executive Secretary 10 them? 8 ll MEMBER MOE: I move that we accept the minutes 9 12 of the May II, 20 II meeting. 10 13 CHAIR WESTFALL: Thank you. Memher Moe. Do J 11 14 have a second'' 12 13 15 MEMBER KIKUCHI: Second. 14 16 CHAIR WESTFALL: Second. Great. Thanks, 15 17 Sydney. All those in favor. please say "aye." 16 18 (A chorus of ayes.) 17 19 CHAIR WESTFALL: Any opposition? 18 20 (Silence.) 19 20 21 CHAIR WESTFALL: Seeing none, they pass 21 22 unanimously. 22 23 Do we have any public testimony? 23 24 MS. ANDRADE: We have no public testimony. 24 25 CHAIR WESTFALL: Old Business: Financial 25 Page 3 Page 5

1 (Wednesday, June 8. 20 I I. 12:38 p.m.) 1 Disclosures. we have none: Communication Items. we have 2 * * * 2 none. 3 CHAIR WESTFALL: We'll go ahead and get 3 Our next item is a report from the Rules 4 started. Thank you lor attending. We now have quorum. 4 Review Subcommittee. And what I'm going to ask the 5 We'll start the meeting of Wednesday, June 8, 201 I. the 5 commission, if I could indulge a little bit, we have, 6 County Board of Ethics. 6 under New Business. Item (d), a request lor an Advisory 7 In attendance: Chainnan Michael Westfall: 7 Opinion from a member of the public. What I'd like to 8 Member Sheri-Ann Daniels: Member Frank Moe: Member 8 do is move that up to now so that we can sort of 9 Sydney Kikuchi: and Mcmhcr Gene Viglione. Did I 9 accommodate Mr. Caires and let him go before we go into 10 pronounce that correct? 10 our Rules Subcommittee discussion. I'llneed a motion 11 MEMBER VIGLIONE: Whatever you say is fine. 11 to change the agenda. 12 CHAIR WESTFALL: Well. I'm not great with 12 MEMBER VIGLIONE: So moved. 13 names sometimes. so please correct me. 13 CHAIR WESTFALL: Do I have a second'1 14 MEMBER VIGLIONE: The correct Italian 14 MEMBER DANIELS: Second. 15 pronunciation is Viglione. but nobody understands it 15 CHAIR WESTFALL: All those in fi1vor, say 16 that way. 16 "ayc.r' 17 CHAIR WESTFALL: We want to welcome our new 17 (A chorus of ayes.) 18 member. And I'm going to give him a few minutes here to 18 CHAIR WESTFALL: Any opposition? 19 give us a little background and introduce himself 19 (Silence.) 20 MEMBER VIGLIONE: I first moved to Maui in 20 CHAIR WESTFALL: None. Great. 21 1972. and lived off and on the island since then. In 21 So we are moving to New Business, Item (d), 22 1985, I purchased Valley Isle Motors with Jim Faulke, 22 Request for an Advisory Opinion from a member of the 23 and have lived here ofT and on since then. I have 23 public regarding his status as a fimner board member of 24 children that live here. grandchildren and great the Cost of Government and his ability to participate in !24 25 grandchildren. We moved back last year. finally. to 25 a competitive bidding process from the County of Maui,

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1 pursuant to Maui County Charter, Section I 0-4. You have 1 situation, so he can give us some background. And then 2 his, I guess, letter to us, and he's also here. We also 2 if we need more questions, we can ask. 3 have some comments on this from Corporation CounseL 3 MR. CAIRES: You bet. 4 I think what I will do is I'll have -- 4 CHAIR WESTFALL: Go ahead, Gary. 5 Mr. Caires, if you can come to the podium. 5 MR. MURAl: Thank you. Members of the Board, 6 MR. CAIRES: Okay. 6 Mr. Caires is --my understanding of the facts is that 7 CHAIR WESTFALL: We'll let you give us a brief 7 Mr. Caires served on the Cost ofGovemment Commission 8 statement. 8 and his term ended over a year ago. 9 MR. CAIRES: I'd be glad to do that Good 9 Now, there are two provisions of the Code of 10 aftemoon. Thank you all for accommodating my request 10 Ethics that govern the activities of a former officer or 11 tor being here. My name is Leo Caires. 11 employee of the County ofMaui. And Mr. Caires is a 12 Congratulations to you folks who have been 12 fom1cr officer. And those two prohibitions are- 13 newly appointed to the-- to the commission. 13 number one, Section I 0-4.1. f --and to paraphrase-- you 14 Yes. So my request comes from a simple 14 may not receive compensation for service rendered on 15 respectful request tor a Advisory Opinion !rom the Board 15 behalf of a private interest after termination of 16 of Ethics regarding my ability to participate in a 16 service if any application the officer was directly 17 competitive bidding request for proposal bid. I have 17 concemed with or under his consideration or had access 18 served on the Cost of Government Commission as a 18 to information not generally available to the public 19 vice-chair tor a two-year term. And it was my 1 9 while his service to the County. So, in other words. 20 understanding that there is a mandatory required period 2 0 you have to be paid to represent a private interest 21 of time before a fom1er person who had volunteered on a 21 after you terminate your service on a matter that you 22 commission can come before any County department or 2 2 were directly concerned with or under your consideration 23 agency for any type of compensation. And that's what I 2 3 while you were an officer. 24 understood it to be. 2 4 It's my interpretation that this does not 25 So going forward, I was hoping that, if it's 2 5 apply to Mr. Caires because he intends, as I understand

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1 1 convenient for all of you. ifl could receive an .L it, Leo. to -- first. he has to submit a 2 opinion. being that there are some timelines that arc 2 pre-qualification letter to the Office of Economic 3 coming up shortly, that would allow me to have gone 3 Development. That's one level of scrutiny. Then, after 4 through this. As just being a prudent thing to do. 4 that, he has to submit a competitive bid on the project. 5 being open. and if there's any comments or questions. 5 And I understand that this project is to provide 6 that I thought this would be a great time to open that 6 photovoltaic -- I'm sorry-- to install, plan, maintain 7 up. I don't know. I wasn't familiar ifthis is 7 photovoltaic electric systems for-- you know. to sell 8 something I needed to do, but I think I wanted to do it. 8 energy to the County. 9 I felt it was the right thing to do going forward. 9 So my interpretation is that. welL there's 10 I think-- my position that I served. I felt 10 going to be two levels of review. that the application 11 in no way would gamer me any leverage on anything in 11 is not to the entity that he was an officer. In other 12 regards to any of these bids that are put f(Jrth in the 12 words, I believe that this rule would control any former 13 public arena. And I would again have to compete 13 Cost of Government Commission member coming before the 14 competitively with an at-large body of interested 14 Cost of Government Commission for some matter that he or 15 participants in the bid. 15 she had dealt with while they're a commissioner. 16 And so I think that's. basically, my summary, 16 Next. Section I0-4.2.b says that you may not 17 kind of what I'm requesting of you folks as a body. And 17 appear for compensation before a department or agency of 18 I guess I'II leave that. open up to any questions or 18 the County the officer served on within a period of one 19 comments that you folks may have. 9 year after tennination of service. So. in other words, 20 CHAIR WESTFALL: I think what I'll do here. 20 he could not appear, again. before the Cost of 21 just for clarity purposes-- if you can stay there for 2 Govcmmcnt Commission for a year. 22 just a minute. 22 And, number one. he's not seeking to go before 23 MR. CAIRES: You bet. 23 the Cost ofGovemment Commission. And it has been more 24 CHAIR WESTFALL: I'm going to have Corporation 2 4 than a year since the service ended. ? - 25 Counsel make some comments. lie's reviewed the I ~:J Of course, this is just my interpretation and 3 (Pages 6 to 9) Certified Shorthand Reporters Maui 808-2++-7776 Page 10 Page 12

1 my --you know. of course. the Board is free to pose any 1 one of the costs of government. was there anything that 2 questions to Mr. Caires. And, of course, my opinion and 2 was there that ever dealt with like power, electric 3 my recommendation would change should there be any 3 power, what you're, basically, getting involved in now'> 4 change of facts. 4 MR. CAIRES: Yeah. Pan of the mission of the 5 The only thing that-- I'm sorry. I had one 5 Cost of Government Commission is to solely derive to 6 other-- one other provision is that you may not use 6 recommendations that are put forward to the other 7 information that you may have gained. In this ca~e 7 officials of the County. And that inforn1ation is then 8 Mr. Caircs would have had to have gained confidential 8 -- it's up to the County whether or not they incorporate 9 intonnation that he's using, you know. in his 9 those recommendations into what they decide to do with 1 0 application. 10 it. At no point in time was any discussion of those 11 But, again, I point out that this is a matter 11 types of things that you're referring to. The 12 that's before an entirely different County agency and 12 recommendations are solely based upon, you know, areas 13 it's a matter that-- in other words. this RFP or this 13 that the County, we would recommend, have interest in 14 project that the County is undertaking. I'm assuming. is 14 evaluating that could benefit the County in tern1s of 15 not something that Mr. Caires actually worked on while 15 cost savings over-- over a period of time. whether it 16 he was a former commissioner. 16 be in fleet management, energy in this case. And so it 17 Mr. Caires. did I state it correctly? 17 was actually -- we found it -- we were delighted to hear 18 MR. CAIRES: That's absolutely correct. 18 it was a recommendation that was actually incorporated. 19 MR. MURAl: And in which ca~e. then, while it 19 And sometimes -- I guess, maybe some folks who have 2 0 is certainly the wish ofthe Board as to how they 2 0 served said, you know, sometimes those recommendations 21 ultimately decide on this, how they ultimately render 21 don't get included, but it was actually a delight for 2 2 their opinion, my interpretation is that there is no 2 2 everybody. And it was an important issue that everybody 2 3 applicable provision in the Code of Ethics pertinent to 2 3 was passionate about. 2 4 this request, or to this requester, rather. And that-- 2 4 But, again. just to reiterate, at no point in 2 5 so, in other words, you know. it's not as if the Board 2 5 time did we discuss any details of a recommendation that

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1 is saying, Mr. Caires, you got to do this, you got to do was rolled into the RFP in terms of cost of energy or 2 that; what we're saying is we have nothing to-- you 2 those types of issues. It was solely a high-level 3 know. we have nothing to tell you because your situation 3 recommendation. 4 does not-- there is no applicable rule that governs 4 MEMBER VIGLIONE: Very gc:neral? 5 your situation. 5 MR. CAIRES: Very broad-based, very general in 6 CHAIR WESTFALL: Thank you. Gary. Let's see. 6 nature. 7 I will open it up for questions for either Gary or Leo. 7 MEMBER VIGLIONE: And what you're doing now is 8 MEMBER VIGLIONE: The question that I sec is 8 on a competitive bid basis, anyway, right? 9 that when he was on Cost of Government. did at any time 9 MR. CAIRES: That's correct. And so. you 10 something come up that the cost oC you know. maybe 10 know. we would have to participate in a bid just like 11 these solar panel or whatever it is that -- 11 anybody else would. 12 CHAIR WESTFALL: Maybe we can direct that to 12 MEMBER VIGLIONE: Sure. 13 him. I don't know if Gary would know. 13 CIIAIR WESTFALL: The RFP is coming out of the 14 MEMBER VIGLIONE: Would that be-- was there 14 Public Works Department? 15 anything that ever came up when you were on the Cost 15 MR. CAIRES: The RFP is coming out of the 16 of-- in Cost of Government about. you know. what you're 16 Otlice of Economic Development. 1 7 going to be doing? 17 CHAIR WESTFALL: Okay. I guess germane to all 18 MR. CAIRES: The first part you mentioned. 18 of this is that. you know. you're well beyond the 19 something about costs'' I couldn't hear you. 19 prohibition of one year. Correct. Gary? 20 MEMBER VIGLIONE: Well, you're on the Cost 2 0 MR. MURAl: Yes. 21 of-- 21 CHAIR WESTFALL: Any other questions'' 22 MR. CAIRES: Government Commission. 22 (Silence.) 23 MEMBER VIGLIONE: --Government Commission. 23 CHAIR WESTFALL: We have a drafl of Gary's 24 MR. CAIRES: Uh-huh. 24 opinion. I guess, if I'm using the correct terminology. 25 MEMBER VIGLIONE: In the CostofGovemmcnt. 25 Should we circulate that''

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1 MR. MURAl: Well, we can do so. I did prepare 1 20 I 0. Mr. Caires is president of Maui Energy Company 2 a draft. 2 which develops renewable energy systems. Maui Energy 3 CHAIR WESTFALL: Maybe we should go back. I 3 Company wishes to respond to an RFP, or request for 4 think the Chaim1an's view is that there is nothing here. 4 proposals, issued by the Maui County Office of Economic 5 lie is well beyond the one year. So there's no reason 5 Development, seeking a proposal for furnishing, 6 that he can't bid and work with the County. And that's 6 delivery, installation, operation and maintenance of 7 essentially what the draft opinion says. And it cites 7 solar photovoltaic systems, selling electricity to the 8 the various prohibitions and whatnot. So we're 8 County under a power purchase agreement. Responses to 9 essentially sending you a letter which is an abundance 9 the RFP are subject to a pre-qualification review and a 10 of caution that, if anyone were to question you, you 10 competitive bid process. The Board considered Article 11 have gone through us, which is commendable on your part. 11 I 0 of the Code of Ethics in rendering this Advisory 12 MR. MURAl: Oh. I'm sorry, Mr. Chair. The 12 Opinion. With regard to the limitations of a County 13 only thing I'd have to ask of Mr. Caires is you can -- 13 officer's post-service activities, the Code of Ethics 14 this opinion can be a public opinion, in other words, 14 prohibits-- and I have already read Section I0-4.I.f 15 your name is on it, or it can be a -- or you can ask 15 and Section I 0-4.2.b. And that based on the foregoing 16 that a redacted version be published. In other words, 16 provisions of the Code of Ethics, and Mr. Caires' 17 deleting any identifying information. And I ask because 17 testimony, the Board finds that under the facts set 18 I have drafted an opinion that could go either way. with 18 forth above and after review of the limitations upon 19 a public opinion or a redacted opinion, whichever. And, 19 former officers set forth in the Code of Ethics, there 2 0 of course, the choice is Mr. Caires'. 2 0 is no applicable prohibition pertinent to Mr. Caires. 21 MR. C AI RES: Can I make a comment on that? 21 So if the Board is inclined to adopt that, 22 CHAIR WESTFALL: Sure. 22 then-- 23 MR. CAIRES: I think I'm open to whatever is 23 MEMBER VIGLIONE: I make a motion to adopt. 2 4 most convenient for you folks, but it sounds like both 2 4 CHAIR WESTFALL: Do I have a second? 2 5 versions are potentially prepared. I'm fairly open. As MEMBER MOE:. Do you need a vote?

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1 open as I can be is my request. So -- 1 MR. MUR/\1: Yes. 2 CHAIR WESTFALL: For the newer members, just 2 MEMBER MOE: I am acquainted with Mr. Caires. 3 as sort of background, normally these advisory requests 3 My wife was the Chair of the Cost of Government 4 come to us through Executive Session, so we have -- all 4 Committee when he served. And we had one business 5 of the confidentiality rules start to kick in. This is 5 dealing. It did not come to any fruition, but I did 6 a little ditlerent. because we're doing it in Regular 6 indulge in some business transactions with him. Whether 7 Session. so it's open to the public. 7 I should be recused or not, my opinion would be probably 8 MR. CAIRES: Yeah. 8 not, but-- 9 CHAIR WESTFALL: There's nothing here 9 MR. MURAl: My opinion is that-- well. we 10 particularly controversial. so that helps us. Do we 1 0 appreciate your disclosure, but I don't see any rci:lson 11 need a motion to accept your -- 11 why you should recuse yourself as long as you feel that 12 MR. MURAl: Well. actually, maybe what I 12 your relationship with Mr. Caires or your wife's 13 should do, then. just to clarity, is, for the sake of 13 relationship with Mr. Caires would prevent you from 14 the members and the record, just briefly -- it's a page 14 being fair and impartial in this matter. 15 and-a-half long. so if I can just read it into the 15 MEMBER MOE: Okay. Thank you. I will not 16 record. That the Board of Ethics has reviewed the 16 recuse myself: then. 1 7 request for an Advisory Opinion and the Board finds 17 CHAIR WESTFALL: Okay. We'll accept that as 18 these facts to be correct. That the request was dated 18 the disclosure remedying the situation. 19 May 18. On June 8. today, we convened in Regular 19 MR. MURAl: So there's a motion that needs a 2 0 Session to consider the Advisol) Opinion request. 2 0 second. 21 Mr. Caircs \\as present and provided all the written 2 MEMBER KIKUCHI: Second. 2 2 testimony. That we find that these are the facts, that 22 CHAIR WESTFALL: All those in favor') 2 3 Mr. Caires is a former otliccr of the County ofMaui. 2 3 (A chorus of ayes.) 2 4 having served as a commissioner with the Cost of 24 CHAIR WESTFALL: Any opposition') 2 5 Government Commission, from June 8. 2008 to March 31st, 2 5 (Silence.)

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1 CHAIR WESTFALL: Seeing none, the letter has 1 As a few of the veteran members know, that the 2 been approved. 2 Charter was amended by a question on the ballot 3 MR. MURAl: It's prepared, so what we can do 3 regarding the filing of financial disclosure statements 4 is, you know, maybe, later on, we can circulate it among 4 based on what was presented. A complaint was presented 5 the Board Members for signature. 5 back in 2009 or so. But the Charter was amended by the 6 CHAIR WESTFALL: Soyou'resortofgetting 6 ballot and the members ofMaui County voted to approve 7 verbal notification that it's okay for you to go ahead. 7 that Charter amendment. So the Charter was amended, the 8 MR. CAIRES: Great. 8 Maui County Code was amended, and now the next step 9 CHAIR WESTFALL: You will get a follow-up 9 would be to amend the Board's Administrative Rules in 10 letter or the actual opinion shortly. This was also. as 10 respect to that provision. 11 we've mentioned already. done in public session, so it 11 CHAIR WESTFALL: And. actually, just to 12 will be open to the public, too. 12 clarify, that provision was a provision that financial 13 MR. CAIRES: !understand. Perfect. 13 disclosures of candidates have to be filed at the same 14 CHAIR WESTFALL: All right. Thank you. 14 time as their other papers are filed. 15 MR. CAIRES: Thank you, everybody. for your 15 MEMBER DANIELS: Nomination papers. 16 time, and, again, for accommodating my request on short 6 MS. HEEL Y: Right, concurrently with the 17 notice and helping expedite it. Again. thank you. 17 filing of their-- 18 CHAIR WESTFALL: Thank you. Okay. Back to 18 CHAIR WESTFALL. Nomination papers. 19 the agenda, Item (c) under Old Business, Report from the 19 MS. HEEL Y: Of their nomination papers with 20 Rules Review Subcommittee. And, today, we're fortunate 20 the County Clerk's Oflice as well. But my slide after 21 to have a presentation from Adrianne Heely. 21 this talks about this as well. 22 Just as background. we've spent, I don't know, 22 CHAIR WESTFALL: Okay. Sorry. 2 3 the last year. year and-a-half, revising the rules. And 2 3 MS. HEEL Y: No, no, no. I just did this the 2 4 Adrianne was our former Corporation Counsel 2 4 other day. too. And correct me if I'm wrong and 2 5 representative. I don't know if that's the correct 2 5 misstating of your guys' goals, but I think Marti's goal

Page 19 Page 21 1 term. 1 was the first one, and I tried to get the gist of it 2 MS. HEELY: Yes. 2 through my notes. 3 CHAIR WESTFALL: Very involved in this. So 3 And the summary of work that has been done by 4 she's sort of stuck around to help us with this. So I 4 the subcommittee. In 20 I 0-- and I'm sorry the slide 5 will turn it over to you, Adrianne. 5 show is a little bit small font, hut I did print out a 6 MS. HEELY: Yes. Good aflernoon. And thank 6 hard copy for all you folks to follow along, if that's 7 you. Nice to see you all. A few new faces, a few faces 7 better. But in 20 I 0, the Board of Ethics voted to 8 from previous departments we advise. 8 create a subcommittee to review the Board's 9 I prepared a PowerPointjust to update the new 9 Administrative Rules and suggest revisions. The 10 members and give a status to the veteran members about 10 subcommittee members included the current Board of Ethic 11 where we arc at in the rules review. It's about I 0 11 Member-- or Chair Mike Westfall. the lorn1er Chair Nanc 12 pages. So the agenda/topics to be covered, Rules Review 12 Aluli. and Marti Wukelic. 13 Subcommittees goals that were discussed by them. the-- 13 Subcommittees arc required to have two or more 14 sorry -- the summary of work done by the committee, the 14 members of the Board, hut less than the number of 15 highlights of suggested revisions to your rules, and the 15 members which would constitute quorum. In this case. I 16 next step in the rule-making process. 16 believe your full Board is nine. So quorum would be 17 The Rules Review Subcommittee's goals were to 17 five. So the maximum you would need to have on a 18 make Board of Ethics Administrative Rules fair and just 18 subcommittee is four. This is for Sunshine Law 19 to all concerned. Secondly. to make rules that are 19 purposes. You don't need a posting of the agenda. you 20 clear in definition. rules that not only educate members 20 can talk about whatever you wanL you can meet whenever 21 of the public, but, also, to educate the Board as to the 2 you want, you can email each other. discuss ideas. The 22 Board's duties and responsibilities. so the Board can 2 2 only requirement, if you have a subcommittee, that you 23 use as a tool. especially as the Board is always 2 3 report back to the full Board. 24 evolving. And to update the rules to conform to changes 2 4 Since the makeup. the subcommittee met a 25 to the Charter and/or Maui County Code. 2 5 number of times. set out goals. divided up current Board

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1 of Ethics rules into sections where they wanted to 1 Like what is a conflict of interest, what is an advisory 2 concentrate. And I also provided them with Honolulu's, 2 opinion. what is MCC. Maui County Code. what is the 3 Hawaii County's, Kauai County's, and the Hawaii State 3 Charter. So it really expands that definition, thanks 4 Ethics Commission's rules. I'm not sure if Angela 4 to the research of your Chair Mike Westfall as well. 5 handed you guys out a chart, the one with the 5 Because he also went out of the state to look for other 6 highlights, but it kind of, basically, gives a 6 administrative rules that provides guidance, on 7 breakdown. And I did a chart comparing the various 7 conflicts of interest especially. 8 County's Administrative Rules, what kind of chapters and 8 And it makes operations the second chapter. 9 topics they have in theirs. And we used that when we 9 The second chapter it renames to organization and 1 0 discussed -- or proposed suggested revisions. And you 1 0 operations. 11 see on the second-- or the two last columns. that's 11 The third chapter is renamed communications. 12 Maui's current admin rules and the subchapters, and the 12 filing and service of documents. more procedural things. 13 last column on the right with the highlights are the 13 The fourth and lifth and sixth chapter. their 14 Subcommittee's suggested chapters and their revisions. 14 main duties. which involve the financial disclosure 15 which my slide show will talk about. 15 statements and advisory opinions and complaints. But 16 And they also did lots of homework. worked 16 these were-- these sections were amended to conform 17 with our office. Department of Corporation Counsel. to 17 with the Charter amendments and Maui County Code 18 incorporate their suggested revisions pursuant to the 18 revisions. especially with regard to the financial 19 Legislative Reference Bureau's Administrative Rules 19 disclosure statements. And it adds a new section. 2 0 Dratling Manual. So I don't know if you guys have your 2 0 penalty section, which is similar to Honolulu or State 21 current copies of your rules. but you see how certain 21 law which requires-- if there's a late posting, then 22 things need to be done and cited at the end. like when 22 your name could be published on the website. 2 3 the last time the rule was revised, what law it's based 2 3 CHAIR WESTFALL: Maybe I'll inject something 2 4 off of~ when the last time it was amended. all that kind 2 4 here. just so there's clarification. One of the 2 5 of stuff. So kind of complex legal review as well to 2 5 challenges is that while we're only focused on Maui

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1 compare. You can't just really-- you can't just-- 1 County Board of Ethics rules. which, on the list of laws 2 it's not a simple process when you revise rules. 2 and rules, this is the bottom of the totem pole, so to 3 So this next chart is kind of blurry on the 3 speak. So you have to incorporate everything from the 4 slide show, PowerPoint, but I just broke it down to 4 U.S. Constitution, Hawaii State Constitution, Hawaii 5 Maui's. the chart of the current Board of Ethics rules 5 Revised Statutes, and she keeps bringing up the Charter. 6 and the proposed revisions of the subcommittee. So you 6 and then the rules. One of the challenges is that the 7 see-- and I think you guys already got passed out the 7 language is not always consistent. The meaning is 8 Administrative Rules with the Ramseyercd format in 8 consistent. but the language wasn't always consistent. 9 previous meetings. but we just wanted to give you more 9 And it, I don't want to say confuses the issue. but. 10 of an opportunity to review them. But the main 10 unless you're trained in it. it's not clear. So just to 11 difference is. is the current Board of Ethics rules, we 11 make sure, we can only adjust the rules. we can't adjust 12 have seven subchaptcrs broken into General Provisions. 12 those other things. 13 the filing of documents. disclosure requirements, 13 MS. HEELY: Right. Thanks for mentioning 14 advisory opinions. complaints. petitions for adoptions. 4 that. Yeah, it was a challenge and a behemoth of a task 15 amendment or rules for dec. orders and lobbyist 15 that the subcommittee took on. And I commend you for 16 registrations. 1 6 that. 1 7 With the proposed revisions-- and my next 17 So the next subchapter is Advisory Opinions. 18 slides also go more in depth of highlights of certain of 18 It adds new sections, purpose. consideration. 19 these chapters where the subcommittee suggested major 19 disposition of advisory opinions and effect. I tried to 2 0 revisions to. And I also worked with them to make 2 0 add things in there to give you --give the Board. which 21 recommendations to accomplish the Board's goals. 21 is always evolving, kind of guidance, ifthcy have a 2 2 The proposed revisions in Subchapter I. 2 2 question. Like what do we do with an advisory opinion. 23 General Provisions. it divides up purpose, it adds 23 what kind of decision can we-- so you can sec in the 2 4 authority of the Board pursuant to the Charter, et 2 4 text of that subchapter of advisory opinions. you can- 2 5 cetera, expands definitions. which is really imp01iant. 2 5 it kind of helps out the Board. provides guidance.

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1 And that's what your Deputy Corporation 1 And this is similar to Hawaii County. Hawaii County has 2 Counsel is there for as well, too. 2 a statute of limitation period with their board's 3 And then complaints, it renumbers the section, 3 administrative rules. But there is a six-year time 4 it adds new section, and gives it -- de tines a purpose 4 limit. 5 and actually adds an extensive section on processing of 5 CHAIR WESTFALL: That's consistent with the 6 complaints and the disposition of complaints. 6 Police Commission? 7 And I compared this to all the other counties 7 MS. HEELY: I'm not sure. The Police 8 as well as other county boards and commissions. And I 8 Commission has about-- the Police Commission, if you 9 took a lot from the Police Commission's procedural rules 9 don't t11e a complaint with them within 90 days. They 10 in regards to how they process the complaints. And it's 1 0 have even a shorter time period. So one thing. when the 11 similar to how we're handling it now where it gets t11ed 11 Chair and the Deputy Corporation Counsel reviews the 12 with the stall but the Corp Counsel reviews it with the 12 complaint, when it comes in. they review it for that 13 Chair first and they make a recommendation to the Board 13 procedure thing. lias it been tiled in this time period. 14 at a meeting. so you don't have to keep on having 14 If not. they recommend to dismiss for that procedural 15 meetings and meetings. continue to try and expedite 15 matter. 16 things. 16 And lastly, it adds duties of the Board. And 17 What happened here? Sorry. I'm sorry. 17 let me see if I have this. And it just copies the 18 Angela, do you have a copy ofthat? 18 duties of the Board out of the Charter. which it's A. B, 19 MR. MURAl: Which page are you on? 19 C. D. E. live of them. You can render advisory 20 MS. HEEL Y: I don't know why it turned off 2 0 opinions, review financial disclosure statements. 21 here. Okay. Then I was on complaints. And then-- 21 administer Article I 0, initiate, receive, hear, 22 MS. ANDRADE: There you go. 22 investigate complaints, etcetera. So this is based on 23 MS. HEELY: Okay. Wejustgottokcepthis 23 the Charter and the State Constitution. So I just 24 moving. 24 wanted to add that in Chapter I, just so new members can 25 And our current Chapter 6 had a whole bunch of 2 5 get an idea what kind of stu IT does the Board do.

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1 stuff logged together: two things. petitions tor 1 Highlights ofSubchaptcr 4. We discussed this 2 adoption of amendment of rules and petitions for 2 brielly. It conforms-- this Chapter's related to the 3 declaratory order. which are few and far between. rarely 3 financial disclosure statements. It conforms to the 4 ever happen here. in our Board. But a great suggestion 4 Charter amendments. requires candidates for elective 5 by the committee was to break those two up-- break 5 office to file their financial disclosure statement 6 those two sections up. So there's one chapter for each 6 concurrently with the filing oftheir paperwork with the 7 ofthose. 7 County Clerk. And it also -- I also suggested-- 8 And then we moved Lobbyist Registration down 8 revised review of Board's Section and quoted-- I cited 9 to Chapter 9. 9 to that rule. And it adds the penalties section. So 10 So the highlights of Subchapter I. which I 10 this is similar to a State law and allowed pursuant to 11 wanted to point out tor the Board. is it adds authority 11 our Charter and Code. 12 ofthc Board and it's pursuant to the Hawaii State 12 So that penalty section. ba'iically. says if 13 Constitution. which Chair mentioned. revised Charter of 13 you file late-- let me just look at it right fairly 14 Maui. Maui County Code. Chapter 2.56. It also adds 14 quick. It's on Page I 0 1-25 of your Ramseycred rules 15 various definitions. which I explained earlier, Charter. 15 that you were handed out before. It says, tor public 16 Code, Advisory Opinion, connict of interest. 16 financial disclosure statements. failure of an appointed 17 Also, I thought this would be a great 17 or elected. appointed legislative department director 18 suggestion as \Veil. It adds a statute of limitation or 18 and/or first deputy director to file financial 19 time period for bringing a claim or complaint. So you 19 disclosure statement when due shall be assessed an 20 don't have a stale claim brought I 0 years after the 2 0 administrative fine of $50. And it goes into the 21 alleged violation of the Code of Ethics. 21 description of what the Board shall do. They shall 22 CHAIR WESTFALL: So that's something we're 22 notify the person, registered maiL etcetera. 23 adding? 23 And failure of a candidate for elective oftice 24 MS. HEELY: Yeah. we're adding. And I 2 4 to file a financial disclosure statement when due shall 25 suggested it be a year from the date of alleged conduct. 2 5 be assessed an administrative fine of$25. And I think 1 8 (Pages 26 to 29) Certified Shorthand Reporters Maui 808-24-+-7776 Page 30 Page 32

1 this -- it also has a clause for board and commission 1 the power now to fine somebody a thousand bucks? 2 members as well. And it also states something to the 2 Because I have heard contrary, that we have to rcter 3 effect that you can also-- names of those that are 3 them to the prosecutor. 4 delinquent filers can be posted on the website. 4 MS. HEELY: Right. And your rules say, after 5 This is kind of verbatim from the State law. 5 hearing and upon conviction, you can recommend a fine 6 And it's solely up to the Board if they want to do this 6 and that shall be forwarded to the Prosecuting 7 or not, but it gives the Board an option of how to deal 7 Attorney's Otl1cc for appropriate action. 8 with this kind of situation if it happens. 8 CHAIR WESTFALL: I'm a little lost here. 9 CHAIR WESTFALL: So the fine comes straight 9 MS. HEEL Y: Y cah. My reading of it, because 1 0 from the Board, we don't have to go through the 1 0 there is already a ordinance in the Maui County Code 11 prosecutor? 11 saying that violations of this could be tined up to 12 MS.HEELY: Right. Andladdedhowtheperson 12 maximum $1,000. 13 needs to pay for it, the procedure things. Like they 13 CHAIR WESTFALL: I guess my question is, is 14 have to write a check within the-- payable to the 14 that something the Board of Ethics-- I mean, I know we 15 General Fund and -- 15 can recommend to the prosecutor by way ofthc advisory 16 CHAIR WESTFALL: The Members might want to 16 opinion that. you know. we feel a fine should be-- is 17 note that. That's a big -- what am I trying to say -- 1 7 appropriate. but it's up to the prosecutor to collect 18 academically. that's a real departure from what we were and prosecute. 19 doing. It gives us some teeth, so to speak. We have MR. MURAl: I'm sorry, Mike. I think when we 2 0 not had the power to fine. All the rules say there can discussed that before, I think I was the one who was 21 be a fine. In order to get the fine. we have to refer talking about that. I think we're speaking of a prior 22 them to the County prosecutor. This eliminates that --well. that was the subject of a complaint against a 23 step. deputy tire chief Is that the one? 2 4 And I know that Honolulu has been pushing for CHAIR WESTFALL: I don't know if it was 25 this. I think they changed their rules to allow the specific. And it may be even before you.

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1 Board of Ethics to tine people for various violations. MR. MURAl: Could be. But I think with regard 2 So I'm sure we'll have a discussion on that. to that one, we referred it to the prosecutor and the 3 MS. HEELY: Yeah. So if you want to take a potential-- although we didn't say. you know. 4 look at that, that's on Page I 0 1-26 of your "Prosecutor. this is what we're doing, this is what we 5 Administrative Rules. want you to do," the thinking was that the actions of 6 CHAIR WESTFALL: We would be-- would it be the County employee. ifthey constituted theft the 7 available for us to incorporate that to other sections? prosecutor would follow up on it. 8 MS. HEELY: Possibly. CIIAIR WESTFALL: Okay. That's different. 9 CHAIR WESTFALL: I mean, this is specific to MR. MURAl: Yeah, that's a little different. 1 0 financial disclosure forms. 10 CHAIR WESTFALL: I'm sure the other members 11 MS. HEEL Y: Right. Because this is already an 11 arc not -- I may be boring everyone here, so we'll move 12 existing legislative act-- or rule that has been 12 on and I'll come back to that. 13 passed. 13 MS. HEELY: Because that was brought up when 14 CHAIR WESTFALL: Uh-huh. 14 we had previous complaints. Right? 15 MS. IIEELY: Hawaii Revised Statute with the 15 CHAIR WESTFALL: Yes. I mean. this goes back 16 set amounts and everything. But as-- as your current 16 several years. 17 Charter and Maui County Code and rules allow, is the 17 MS. HEEL Y: This recommendation is more to 18 penalty provision. violation of any Code of Ethics 18 give more specific guidance, because as your rules are 19 provision arc subject to a maximum possible penalty of 19 written now. it's kind of vague, and what happens next 20 $1.000. 2 0 with what. Because what your rules say in regards to 21 CHAIR WESTFALL: Right. 21 after the Board finds a violation and recommends a fine, 22 MS. IIEEL Y: So that gives us the authority to 2 2 they shall forward it to the prosecutors for appropriate 2 3 fine. in my opinion. So if you want to set a-- 2 3 action. It doesn't say for collection of fine or 24 CHAIR WESTFALL: I'm sorry, Members. I'm 2 4 anything. Because it may be a criminal conviction just 25 going to delve into this. So you're saying that we have 2 5 like how you sec our criminal arrests or--

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1 CHAIR WESTFALL: Sure. But in my-- 1 fines. 2 MS. HEEL Y: Yeah. 2 CHAIR WESTFALL: And the campaign finance 3 CHAIR WESTFALL: My discussion here is-- the 3 commission is out there fining people !ell and right. 4 issue that we had was, is the prosecutor going to go to 4 So it's not as though it isn't already happening. 5 the time and effort to go prosecute somebody for less 5 MS. HEEL Y: And it just gives more guidance to 6 than a thousand bucks. So -- 6 you folks how to handle those type of specific 7 MS. HEEL Y: Right. 7 situations. 8 CHAIR WESTFALL: So the argument from the 8 CHAIR WESTFALL: Okay. Thank you. I'm sorry 9 Honolulu attorney was give the power to the Board of 9 ifl confused the issues. 1 0 Ethics, don't even go to the prosecutor. It waul d be 0 MS. HEELY: Not at all. Three more slides. 11 within our realm. 11 MEMBER KIKUCHI: Could I just ask one 12 Any other Members have any comments on this. 12 question'! 13 any thoughts? Okay. 13 MS. HEELY: Go ahead. 14 MEMBER VIGLIONE: It would be good to put the 14 MEMBER KIKUCHI: Is there any situation 15 enforcement in that. 15 where-- let's say we do-- we're empowered to tine 16 CHAIR WESTFALL: Yeah. I mean, the academic 16 someone. Is there any situation where that will 17 issue is that the Board here doesn't have enforcement 17 conflict') Let's say we render a decision and there's a 18 powers. All we're doing is making recommendations. So 18 tine, we say there's a tine. Would it jeopardize a 19 at the end of the day, we could -- we just told him he 19 criminal proceeding that maybe came down, down the line, 2 0 could go do whatever, but we're just recommending it. 2 0 in any way? Like a double jeopardy thingry 21 He doesn't have to do anything, and we're not going to MS. HEEL Y: No. This would be a civil or 2 2 go follow up. administrative matter. Just like you see in the news 2 3 So the issue-- and this is coming up in other now, right. Rod Tam, Senator, he was -- he pled to his 2 4 jurisdictions-- do we get more enforcement powers. i.e. civil campaign spending things and he also had a 2 5 fining, other things. And in the other jurisdictions, criminal charge today that he pled to. So you can be --

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1 they tend to be shilling towards more teeth rather than MEMBER KIKUCHI: It wouldn't interfere with it 2 just advisory. They have fining abilities and difTcrent either way? 3 things. MS. HEELY: Right. 4 So the question for this Board. is that the 4 MEMBER KIKUCIII: Okay. 5 direction we want to take. That's. I guess. the issue. 5 MS. HEEL Y: But the opportunity that-- the 6 So, I'm sorry. I got into the nuances of this. 6 person that is subject to the dual prosecution and 7 And I didn't mean to confuse-- 7 whatever may have the opportunity to appeal to the 8 MS. HEEL Y: No. That's what it's for. to 8 Circuit Court of your administrative decision. say, 9 discuss the subcommittee's homework, too. 9 "Hey. I don't want to pay this $50 fine." So under 1 0 And I did a Iittlc bit of research. too. on 10 Chapter 91, it allows them to appeal to the Circuit 1 how many times the Board submitted recommended monetary 11 Court stating whether your decision was right or not. 12 tines to the prosecutor for necessary action. In the 12 but it still wouldn't interfere with the criminal side 13 past, I looked back 20 years, and there's once where the 13 of their investigation. Okay. 14 board tined $500 to a board or commission member that 4 Highlights to Subchapter 5. '~hich is Advisory 15 didn't tile his financial disclosure statement on time. 15 Opinions, tor the benefit of the Board and requester and 1 6 And they forwarded it and nothing happened with it. So 16 to provide guidance. Basically. three important 17 it kind ofjust --you know. 17 highlights. It adds a purpose section. it adds 18 So this suggested revision in the nnancial 18 consideration and disposition section and it adds scope 1 9 disclosure statement is a suggestion for the Board to 1 9 of advisory opinion section. I just wanted to-- that's 2 0 consider adopting or not. And it's more specific and I 2 0 really self-explanatory. And it just provides more 21 think. in my opinion. allowable pursuant to the already 21 guidance on how to handle those. So you can look at 2 2 established rules. 22 those sections that I quoted when you have time. 23 CHAIR WESTFALL: Sure. 2 3 The highlights to Subchapter 6. the complaint 2 4 MS. HEEL Y: The Hawaii State Ethics 2 4 section, is the same. to benefit the Board and to 2 5 Commission. they're already enforcing this. the $25. $50 2 5 provide guidance. It adds a purpose section. it adds

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1 processing of complaints section, and it adds a 1 complaint they filed against you. 2 complaint disposition/opinion section. So it, 2 CHAIR WESTFALL: We'll come back to this in a 3 basically, makes it more clear and provides more 3 minute. 4 guidance. 4 MS. 1-lEELY: And it also helps the staff. And 5 I looked at other counties as well as other 5 the staff is always evolving. too. so it kind of 6 boards and commissions, like the Police Commission, how 6 gives-- the proposed suggested revision gives the staff 7 do they handle when the complaint comes in. What 7 a guide or tool to look at to what do I do when a 8 happens, the staff stamps it, they forward it to the 8 complaint comes in. It goes as simple as to stamp it 9 Deputy Corporation Counsel to review with the Chair and 9 in, clock it in, give it a complaint number, and then 10 they, you know, try to-- just like Gary does now, he 10 forward it to the Deputy Corporation Counsel who can 11 tries to see if there's a relevant opinion on cite 11 discuss it with the Chair and handle it appropriately. 12 before the next meeting and advise you the same. But 12 Okay. What's next-- this is the last-- 13 it's still the Board's decision to make the decision and 13 CHAIR WESTFALL: I'm sorry. I'm just going to 14 take the recommendation or not. But it tries to give 14 add. Historically, what used to happen is we would get 15 more guidance in that section. 15 the complaint raw. Meaning you would get it in front of 16 MR.MURAI: lflmayadd,oneoftheagenda 16 you, nobody's looked at it. So we would spend --the 17 items is the discussion of the problem that our Board 1 7 first meeting. like today. we would spend the first 18 has had, you know, with complaints, where, you know, 18 meeting simply reading it. What we wanted to do is 19 when do we send it to the respondent, you know, when do 19 expedite the process so he could at least read the 20 we -- you know, when does the clock start running when 2 0 complaint. or whatever it was, and have the cites and 21 we review it. And what I saw that Adrianne and the 21 the rules. And iftherc was any testimony-- like we 22 subcommittee did was they looked at the Police and fire 2 2 had one where. as it turned out. what was being alleged 23 boards and kind of tracked what they do. Which is, you 23 was conduct in a meeting. Well, that's recorded. and 24 know, as soon as a complaint comes in, it's reviewed. 2 4 all we needed to do was get the transcript. Once we got 25 And if it's, you know, totally baseless, frivolous or the transcript, we realized it wasn't even close. So

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1 whatever. they can say. you know what. we're not going 1 we're trying to get all of that information to us at the 2 to review this any further, but that decision not to 2 first meeting so that we're not taking two. three 3 review it gets reviewed at the next meeting. Right. 3 meetings to make decisions that. in many cases, could be 4 Adrianne? 4 done-- like today. we did this quickly. 5 MS. HEELY: Yes. 5 MS. HEELY: Right. Because we all understand 6 MR. MURAl: And stuff like that. But the 6 that you guys arc high paid-- 7 biggest hindrance, I guess, that this Board has is that 7 CHAIR WESTFALL: I keep interrupting. 8 those other boards, they have paid staff investigators. 8 MS. HEELY: --workers with lots of time on 9 So once they decide there's something to it, the 9 your hands. 1 0 investigators start working on it even before the 1 0 CHAIR WESTFALL: Just for clarification. So 11 meeting. That's one advantage that they have that we 11 we're actually already -- in some respects. we have 12 don't have. But, you know. it's not a perfect world. 12 started that process with Gary doing some research on 13 So I'm sorry to interrupt you. Adrianne. but 13 these prior to the meeting. 14 what Adrianne's discussing now. in my mind. helps 14 MS. HEELY: Yeah. So I think we titled this 15 resolve, at least to some degree, the struggles that 15 in the rule the preliminary review. 16 this Board has been having with, you know, maintaining 16 CHAIR WESTFALL: Right. 17 confidentiality orthe complaint and, you know. having 17 MS. HEELY: Once again, it's not making a 18 either the complainant or members of the public coming 18 decision, but, preliminarily. getting all the facts. 19 to our hearings, testifying about something that's in 19 gathering all the information lor the Board to make the 2 0 Executive Session in the public portion of the meeting. 2 0 decision at the public meeting. which is important. 21 And I know that this Board has concern about fairness to 21 Because any decision-making has to be made at a public 22 the respondents in that, you know, we cannot tell them 2 2 meeting pursuant to Sunshine Law. 23 that there's a complaint being filed against them yet. 2 3 Okay. So what's next? This is my la~t slide. 24 but, yet. you know, they may hear about it from other 2 4 Pursuant to state law, in the rule-making process-- and 25 people that. hey, you know, people are talking about the 2 5 this wa~ discussed many times-- the notice of 30 days,

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1 public notice has to be given. And you can put this on 1 MS. HEEL Y: Thanks. For all their hard work. 2 your regular scheduled Board of Ethics meeting day. but 2 That's my status. 3 just have an agenda item of the notice of the 3 CHAIR WESTFALL: Any questions for Adrianne'l 4 rule-making review. 4 Questions in general on this'> Yes. 5 And I drafted that notice tor staff to 5 MEMBER MOE: I do, please. I think it would 6 publish. And so the publish would take place in "The 6 be appropriate to poll the Board, before you set that 7 Maui News" and on our County internet. It has to be 7 August hearing date, for attendance. I. tor one, will 8 posted tor 30 days to give the members of the public 8 not be in town on August 10. 9 notice and opportunity to submit testimony. if they 9 CHAIR WESTFALL: Okay. I would also mention, 10 want. at that public hearing. And after the hearing and 10 the charge of the Board of Ethics-- Adrianne, help me 11 upon Board approval. stall' will finalize the revisions 1 with this-- is making transparency within the County. 12 and transmit for mayoral signature and filing at the 12 So while we're revising the rules -- and Marti was 13 County Clerk's Office. And upon the 111ing. the rules 13 actually more involved in this-- a secondary thing that 14 will be revised. 14 we've been working on is the web page and how we 15 A huge feat to be commended to the 15 communicate to the public. There's significant, I'll 16 subcommittee. The last time the rules were revised were 16 call it, confusion. Maybe that's not the best 1 7 in 1996. 1999 and 2000. So over II or I 0 years. You 17 descriptiqn, but we work in kind of mysterious ways at 18 can understand the task that was accomplished here by 18 times because everything is done -- I should say much is 19 the committee and staff and everyone. 19 done in Executive Session. So there is a parallel 2 0 And most rules of administrative boards and 2 0 etlbrt to upgrade the website. We changed the complaint 21 commissions don't get revised. I fthey do, in a small 2 form. We're trying to be more descriptive in how the 2 2 section. and not comprehensive like this with every 2 2 process works, what the time frames are, what the 2 3 chapter. 2 3 outcomes are, that kind of thing. So there's sort of 2 4 But I think they are timely and important 2 4 dual things going on at the same time. Okay. 2 5 revisions that need to be made. And, hopefully. at the 2 5 The next item, (d), is a discussion of

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1 public meeting. the Board could approve the 1 confidentiality and notilication. This was actually -- 2 recommendations and then we can submit the Ramseycred 2 1 submitted this under a discussion of a report from the 3 version to the Clerk's Office, they'll okay that, and 3 Rules Review Subcommittee just as a topic for today. 4 then we submit the final. the final version to the 4 Most of the Members that had issues with this aren't 5 Clerk's Of'lice. And I 0 days afler the Clerk stamps it 5 here, so I'll just highlight it briefly. And we'll try 6 approved. then the rules will be effective. 6 to come back to it or discuss it at another time. And. 7 Totally up to you. I kind of guesstimated for 7 Gary, you can chime in if you want, but-- and this has 8 staff and your sake that the public meeting for this 8 to do with the complaint process. I guess I'll just go 9 agenda topic would be August. in your August meeting. 9 ofl' of my notes here. 10 So this gives you guys July. one more month, to review 10 One aspect that I found. or I recently 11 the proposed revisions, make suggested revisions, and 11 discovered. whistleblowcr status of an employee of the 12 August will be the public meeting where final approval 12 County who wants to remain anonymous in filing a 13 of the revisions could happen. In July, 30 days would 13 complaint, that status is not available to them through 14 be public notice pursuant to state law to give members 14 the Board of Ethics. There's other vehicles within the 15 of the public an opportunity to consider proposed 15 County. so it wouldn't even come to us. We haven't had 16 revisions and coming to the meeting to discuss the 16 it, but other jurisdictions. there was a lot in their 17 proposed revisions to the rules. 17 rules about it. Am I correct there. Gary? 18 But I think Chair Westfall and all the other 18 MR. MURAl: Uh-huh. 19 Committee Members-- and I was trying to get it to be 19 CHAIR WESTFALL: Okay. 20 accomplished before Nane's tenure ended, but I think 2 0 MS. IIEELY: And if! may, Chair'? 21 Chair Westfall, former Chair Nane Aluli, and current-- 21 CHAIR WESTFALL: Yes, go ahead. 22 Marti's still on it, right? 2 2 MS. IIEELY: Sorry. And that's the only 23 MR. MURAl: Marti's still on it. 23 suggestion I didn't take from the subcommittee's 24 MS. HEEL Y: And Marti should be commended. 2 4 proposed revision. The subcommittee wanted to add in a 25 CHAIR WESTFALL: As well as you. 25 whistleblower protection.

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1 CHAIR WESTFALL: That's before we found out 1 essentially that the allegations -- a reasonable person 2 that we don't even have it. 2 could assume that these might have occurred, but you're 3 MS. HEEL Y: Right. And I found out that 3 not saying that they occurred or there's any proof at 4 Honolulu has a portion of it, but it was based off of an 4 this point. The next one is if we find it's beyond a 5 act of legislation and an ordinance and a section in the 5 reasonable doubt, which means 50 percent. It's not 100 6 Honolulu Charter. I would suggest not incorporating 6 percent. 7 either a confidentiality or whistleblower revision as I 7 MR. MURAl: That's preponderance of the 8 think it may be exceeding the Board's authority. And we 8 evidence. 9 have other County policies against retaliation. And 9 CHAIR WESTFALL: Okay, preponderance of the 10 Office of lnfonnation Practices has commented on the 10 evidence. 11 right to remain confidential on the complainant, et 11 MR. MURAl: More likely than not it happened. 12 cetera. So your legal counsel could advise you if that 12 CHAIR WESTFALL: So that's the standard we 13 ever comes up on a question. 13 work under that, I guess, is found in the state 14 CHAIR WESTFALL: It hasn't. But we had 14 statutes. Again, we need to let the public know that 15 discussed it with the rules, and we later found out that 15 that's the -- that's the burden that they're under when 16 we don't even have that available to us. So that's 16 they --when they come forward with a complaint. 17 fine. 17 The issue that came up at our last meeting. 18 MS. HEELY: Yeah. 18 and Carolann has sort of championed -- and. 19 CHAIR WESTFALL: The second one, anonymous 19 unfortunately. she's not here-- is disclosure to the 2 0 complaints from the public and requests for 2 0 respondents. As practice -- and we have a memo, I 21 investigation. We get these quite often. Basically, 21 think, that you folks got, the Kristi memo, I'll call 2 2 unsigned complaints, making lots of allegations and 2 2 it -- is that as soon as the complaint comes in, we have 2 3 essentially asking us to do an investigation. The 2 3 been notifying the respondent. And there is some 2 4 process by way of the rules arc we can initiate an 24 question if that's appropriate. 2 5 investigation: however. three members have to sign off 25 The question stems from several perspectives.

~~~c"~C~'-~ Page 47 Page 4 9

1 on it. And I'm not-- as Gal)' mentioned. we don't have 1 One is that, technically, the Board of Ethics has not 2 staff to do an investigation. So I think that's 2 acknowledged the complaint at that point. So let's just

3 something we might want to discuss a little bit as \VC 3 assume that the complaint is frivolous. are we wasting 4 work into the rules. what is an investigation and at 4 someone's time by notit):ing them. So the example we 5 what point would we initiate something. I suspect that 5 used is I suspect that the Mayor's Office receives lots 6 the public is often quite frustrated because they do 6 of complaints and they must have -- I don't expect that 7 bring lots of allegations and then we don't communicate 7 they confront the Mayor with each and every one of them. 8 back to them that we really don't have authority to 8 On the other hand. the perspective is that if someone is 9 initiate things. 9 writing something that's, I guess. derogatory towards my 10 And Adrianne maybe can help me on this. State 10 position or what I'm doing, I probably want to know 11 statutes place the burden of proof on the complainant. 1 about it. And that's the position that the Board had 12 So the person who is writing the complaint has to be the 12 essentially taken by notifying the respondent right off 13 one bringing the substantiation and proving that 13 the hat. There's a di ffcrcnce of opinion amongst the 14 allegation. It's not for us to prove what they are 14 Board as to that process. 15 alleging. So, A. I think we need to maybe do a little 15 Would that be a fair? 16 better job in communicating that that's the process. 16 MR. MURAl: That's a fair statement. 1 7 And, you know-- 17 CHAIR WESTFALL: The rules are a little 18 MS. HEEL Y: We could possibly add a-- I know. 18 confusing because the rules don't talk about 19 in Chapter 91. it talks about the burden of persuasion 19 notification until the Board elects to go to an informal 2 0 in administrative hearings. And it does say that the-- 2 0 hearing. I call that sort of second base. First base 21 CIIAIR WESTFALL: We have several-- for the 21 is we acknowledge receipt of the complaint. essentially 2 2 Mem bcrs' education, I guess, there are several standards 2 2 the complaint is to form. Then we punt it up to this 2 3 that we work with. And Gary can tell me if I'm correct 2 3 informal hearing. The informal hearing section, the 2 4 or not. The first standard is just probable cause. And 2 4 rules have 15-day notification to the respondent. It 2 5 I know our police guys know these things, but it's just 2 5 talks about this as being the first opportunity for the

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1 respondent to, I guess, respond to the allegations 1 complaint. look at violations of policy procedure. And 2 directly to the Board. So there isn't anything that 2 at that particular point, they wouldn't be subject to 3 says that the Board needs to noli fy the respondent prior 3 the actual complaint. Because, like what maybe Gary 4 to forn1al hearing. So what we're doing in practice 4 does, he'll do a little background first and see if it 5 someone could conclude is a little contrary to that. 5 actually meets that criteria. And if not, then we don't 6 But I'm sure you can argue that -- 6 su~ject the guy to the complaint. But we'll let 'em 7 MR. MURAl: Well. the countervailing argument 7 know that somebody has made a complaint. 8 would be that if you have-- because the complaint-- 8 As far as the investigation is concerned, 9 unlike, say. a complaint to the mayor. which is somewhat 9 which is a little more serious, then we would ofticially 10 informal, because a complaint is made against-- made to 10 noti(y that employee and go through their whole -- their 1 a body that does have some adjudicatory function, that 11 rights and everything else that goes along with that. 12 just due process and fair play may-- you know, even if 12 And I think that's pretty fair, actually. 13 it's not explicit in the rules, you know, fair play kind 13 CHAIR WESTFALL: Yeah. I think we're talking 14 of dictates that the subject of the complaint should 14 sort of the tirst section, because by the time we get to 15 know that there is a complaint lodged against them. 15 informal hearing, you know. we're following a pattern - 16 MEMBER MOE: But is there a reason we couldn't 16 or a process for that. 17 redact the complainant's name on that tirst mailing? 17 MEMBER KIKUCHI: I think one of the 18 MR. MURAl: Yeah, you could. That is a 8 differences-- and maybe I mentioned before-- but 19 possible cure. 19 everything that we do is documented. I mean, it's 2 0 MEMBER MOE: I think that's part ofCarolann's 2 0 documented along the way. And there is an investigator. 21 concern. 21 which I understand we don't have. And that-- 22 CHAIR WESTFALL: I'll ask you a question 22 CHAIR WESTFALL: Well. we don't have an 23 because you have been in the County. One ofthe other 23 investigator. right, Gary? 2 4 arguments is that-- and we had this with Fire 2 4 MR. MURAl: Yeah. you don't. 2 5 Department, you know. internally we were getting 2 5 CHAIR WESTFALL: The investigator is you.

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1 complaints from employees against officers. So the 1 MEMBER KIKUCHI: Which is something, actually. 2 argument was if these complaints are frivolous. is this 2 the Board might consider proposing down the line

3 upsetting the day-to-day functions 0 r the department. 3 sometime. 4 And. you know. an argument that we don't need to inform 4 CHAIR WESTFALL: Yes. 5 them until we get to the latter stages. You know, I'm 5 MEMBER KIKUCHI: Because I would think it 6 not putting you on the spot. you don't have to answer. 6 would make it easier for the-- collectively for the 7 MEMBER KIKUCHI: I think just-- 7 Board to make a more in formed decision or opinion, then 8 CHAIR WESTFALL: You've been in that 8 we'll have whatever facts we can get instead of only the 9 position. 9 initial complaint about he said. she said, whatever. 10 MEMBER KIKUCHI: Personal opinion-- you know. 10 CHAIR WESTFALL: And other jurisdictions in 11 the commission-- the Police Commission and how they 11 Hawaii -- for instance, Honolulu, they have a fi.ill-time 12 handle complaints di fTers a bit on how the internal 12 paid staf[ Obviously. the State Ethics Board and the 13 investigation's done by the Police Department. They 13 Campaign Finance. they're all fi.1ll-time investigators, 14 have a different set of rules that they go by. 14 attorneys. So a little different animal than us. 15 I think. a personal opinion. that il'l was 15 MEMBER KIKUCHI: Yeah. 16 su~ject to a complaint, that I would want to know that 16 CHAIR WESTFALL: Adrianne, was there anything 17 somebody is complaining about me. 17 in the rules as far as notification to the respondent? 18 But, you know. there are some other issues, 18 MS. II EEL Y: Yeah. I just showed Angela that. 19 sometimes internally, from like the Police Department, 19 but, in your current rules. after the initial filing or 2 0 they would notify the employee, whoever it is. of the 20 the complaint-- it says after tiling of a complaint. 21 allegations and they would go through the whole 21 the Board or its staff shall provide respondent with a 22 complaint. I mean, they would do an investigation. 22 copy of the complaint and may request the respondent's 2 3 And I think one good thing about it. they had 23 attendance at an informal hearing. 2 4 two classifications. Inquiry. which is that they'll 24 CHAIR WESTFALL: Yeah. !mentioned that 25 look at a complaint. and this could be an inforn1al 2 5 earlier, that the first time that there's any mention of

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1 notification is in the intorn1al hearing stage. 1 name and number. 2 MS. HEELY: Right. 2 CHAIR WESTFALL: Yes. 3 CHAIR WESTFALL: So what we're concerned with 3 MEMBER DANIELS: Because, remember. we wanted 4 is prior to that. 4 to make sure it wa~ signed and so we had all that. 5 MS. HEEL Y: Yeah. So if you see the 5 MEMBER KIKUCHI: Yeah. We lefl the name on 6 Ramseyered version of our suggested revisions, it adds a 6 there, though, you know, because it is-- any complaint 7 whole section before that, and that's the preliminary 7 against any person is a big deal -- 8 review and where the recommendation may be made to 8 MEMBER MOE: Sure. 9 process the complaint or not. So maybe that section 9 MEMBER KIKUCHI: --you know. So they have 10 that I read earlier about after the filing of a 10 the right to know who is accusing them of whatever, 11 complaint, maybe it can be revised to after the decision 11 whatever it is. Bull ike I said, try to minimize that 12 by the Board to process the complaint, it shall be 12 in any way. Once again, to-- I know they had to either 13 forwarded to the -- 13 notarize it or swear to the complaint. And I know from 14 CHAIR WESTFALL: Okay. 14 the internal side, if the Board determined that there 15 MS. HEEL Y: And maybe, in the revised portion, 15 was -- it was a false complaint, then there's a 16 where it says the various reasons why it shall not 16 possibility that criminal-- a criminal complaint could 17 process the complaint, if it's untimely or speculative, 17 be made against that person making that complaint. 18 etcetera, or not within the jurisdiction of the Board. 18 initial complaint. 19 maybe in there, it can have a clause, if the Board 19 CHAIR WESTFALL: Okay. I think we'll have to 20 decides not to process the complaint, it can notify the 20 come back to this one. 21 respondent of the same. 21 MS. HEEL Y: Yeah. So maybe-- it's totally up 22 CHAIR WESTFALL: Maybe give us an option, I 22 to the will of the Board if they wanted to add- 23 guess. 23 whether the forwarding of the complaint-- afler the 24 MS. HEEL Y: Yeah. So it's all up to you how 24 decision to process it be forwarded to the respondent or 2 5 you want to be clear in your rules. But, right now, it 2 5 upon-- right now, your rules say upon tiling, it shall

Page 55 Page 57 1 currently reads, atler filing of a complaint, the Board 1 be forwarded to the respondent. 2 or its stati Which I think it currently happens now. 2 CHAIR WESTFALL: Do you have any comment? 3 I think once a complaint comes in, the stall' 3 MR. MURAl: You know, I personally-- this is 4 automatically sends it to the respondent before the 4 a personal view-- is that, you know. the respondent 5 setting of an informal hearing. 5 should be notified upon tiling. But atler looking at 6 CHAIR WESTFALL: Right. Mr. Sheridan-- 6 the rules revisions, atler having to look at how Fire 7 Member Sheridan was making comment with the Fire that 7 and Police Commissions do it, I think it's my opinion 8 the respondents had already been informed before we were 8 that that's probably the best way to go because we can't 9 informed, and he was not-- you know, was that a proper 9 make-- there's no such thing as a perfect system. And 1 0 process. 1 0 you can always lind an example or a case where the rules 11 MEMBER KIKUCHI. Can I mention somethingjust 11 seem to work in unfaimcss. We talked about the recent 12 to Frank's concern about the-- 12 complaints against, you know, firelighters, how certain 13 CIIAIR WESTFALL: Yes. 13 things turned out to be unfair. 14 MEMBER KIKUCHI: --other concems? That the 14 We were also concerned about protecting-- or 15 forn1that we had at the Police Department, I can't 15 discouraging members of the public from coming forward 16 remember if the Commission one was the same, but I know 16 and making complaints. 17 the intemal fonn, we wouldn't have any personal 17 And I think that the schemes that the Police 18 information about the person making the complaint, such 18 and Fire commissions have set up arc probably as fair as 19 as their phone number, address, anything where-- try to 1 9 it can get. The biggest puka for us as the Board of 2 0 minimize retaliation. 2 0 Ethics is we don't have the investigatory resources that 2 MEMBER MOE: Correct. 21 they do. So, you know -- 22 MEMBER KIKUCHI: Or contact. 22 And, or course. I spoke with the attorney who 23 MEMBER MOE: That's what happened in this Fire 23 advises the Police Commission. And he says-- well, I 2 4 Department thing we had a few months ago. 2 4 said, you know, in the police scheme, when does the 2 5 MEMBER DANIELS: That one had the person's 25 respondent or the officer find out about it. He goes.

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1 well, even though there may not be any formal service of 1 time-- 2 the complaint on him, as soon as the investigator 2 MR. MURAl: Youmcan the public session, the 3 contacts you, you know. So, you know, as a practical 3 public portion. 4 matter, they are put on notice as soon as that complaint 4 CHAIR WESTFALL: They're in here testifying 5 passes the initial review of not being frivolous, not 5 against something that we're going to hear. So the 6 being, you know, filed too late. And so once the 6 Board is actually in a di flicult position because we 7 investigator -- once it's sent lor investigation. then. 7 can't acknowledge anything to the public or to the 8 as a practical matter. the respondent learns of it. 8 newspaper, nonnally, about what is happening. So as 9 MEMBER MOE: But is there any necessity for 9 Chainnan, what I have done recently is if the respondent 10 him to know at that point in time who the complainant 10 or their representative is here to testify, which they 11 is? 11 always come at the first hearing, I have just asked them 12 MR. MURAl: Probably not. Probably not. 12 to stay back and testifY in Executive Session since 13 MS. IIEELY: And a suggestion-- if I may 13 they're representing somebody. So at least there's some 14 intc~ject -- is that the Board can decide in each 14 confidentiality with that. I don't know what we can do 15 specific complaint when they're deciding, the processing 15 there. I don't think there's anything. 16 of it. whether the name of the complainant shall be 16 MR. MURAl: And I'm waiting for someone to 17 redacted. Just leave in the alleged violation, forward 17 say, "No, I insist on speaking in public because it is 18 the complaint with the name of the complainant redacted. 18 my right." 19 Because as O!Tice of lnforn1ation Practices has ruled. 19 MS. HEEL Y: Leo. 20 the complainant has the right to confidentiality and 2 0 CHAIR WESTFALL: Leo did. 21 privacy and not to be known as well. and to just not 21 MS. HEELY: Gary, I'll forward a copy ofthat 22 discourage people from bringing the subject matter 22 to you. 23 before the Board for fear of retaliation. But maybe 2 3 CHAIR WESTFALL: For the Members' edification, 24 that's an option when you're reviewing the processing of 2 4 what that create~. we have a challenge because the 25 the complaint and decision to process, to forward a 5 media, if you will. they're only in the public session.

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1 redacted -- the complainant's name redacted in the 1 they're not in the Executive Session. So they're 2 complaint. 2 getting information that's not always accurate. And 3 But. then again. Member Kikuchi makes a good 3 they. on occasions. have written things that weren't 4 point. that if! had complaint filed against me. I would 4 accurate. And it creates not a great impression as to 5 want to know to be able to ask them questions. But that 5 what we are doing. 6 would come at the hearing stage. Right'1 6 So, anyway, we'll keep working on that. 7 MR. MURAl: Adrianne. iflmay clarify. OIP 7 Any other questions on any of that~ 8 says that the complainant has the right to privacy. Was 8 (Silence.) 9 that limited to just like when a member of the public 9 CHAIR WESTFALL: Thank you. Adrianne. 0 requests a copy of the complaint, or is it like with 10 MS. HEEL Y: Oh. thank you. 11 regard to even the respondent~ Because I do -- l did 11 CIIAIR WESTFALL: On to New Business. 12 have a recent reason to call the 01 P. And the request I 12 Financial Disclosures, none. Communication Items. a 13 was calling about was made by a member of the public who 13 memo from Joshua Stone. Chair of the Maui County Charter 14 is not a party to the complaint that said I want to see 14 Commission. for 20 II. It's been circulated. He's just 15 this complaint. So we did produce a copy to him, but 15 asking us if we have any Charter issues that we should 16 with the names redacted per 01 P's advice. 16 submit to them. Docs anyone have any thoughts or 17 MS. fiEEL Y: I think it was specific to 17 comments on Charter issues'' I don't suspect we would 18 providing it to the respondent because it specifically 18 have to have something by his cut-off date. 19 addressed the fear of retaliation and not coming forward 19 And as you will hear, the Charter 20 to address the conduct. 2 0 Commission --there's actually sewral ways to change 21 CHAIR WESTFALL: The last aspect of this. 21 the Charter. We did it recently with respect to those 22 which I guess we don't live in a perfect world. is our 22 disclosure forms. So we don't have to necessarily go 23 agenda. you know. we circulate the Executive Session 2 3 through them. 24 agenda. So what happens is people come to tcstitj: about 2 4 Lobbyist registration is none. 25 the complaint in the Executive Session. So half the :25 We took care of Number (d).

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1 Announcements, none. 2 Our next meeting is Wednesday, July 13th. 3 20 II. 4 Do I need a motion to go into Executive 5 Session? 6 MR. MURAl: Yes, you do. 7 CHAIR WESTFALL: Can I get a motion to go into 8 Executive Session? 9 MEMBER VIGLIONE: So moved. 10 CHAIR WESTFALL: Second? 11 MEMBER KIKUCHI: Second. 12 CHAIR WESTFALL: All those in favor, say 13 "aye." 14 (A chorus of ayes.) 15 (Regular Session concluded at I :56 p.m.) 16 17 18 19 20 21 22 23 24 25

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1 CERTIFICATE 2 3 4 I, TONY A MCDADE, Certified Court Reporter of 5 the State of Hawaii, do hereby certify that the 6 proceedings contained herein were taken by me in machine 7 shorthand and thereaflcr was reduced to print by means 8 of computer-aided transcription; and that the foregoing· 9 represents, to the best of my ability, a true and 10 accurate transcript of the proceedings had in the 11 foregoing matter. 12 I further certify that I am not an attorney 13 nor an employee of any of the parties hereto, nor in any 14 way concerned with the cause. 15 DATEDthis lstdayof.luly,2011. 16 7 18

19 Ccrti tied Shorthand Reporter #44 Registered Professional Reporter 20 Certified Realtime Reporter Certified Broadcast Reporter 21 22 23 24 25

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