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Memo re ethics jurisdiction draft

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  • Politicians tend to appreciate the usefulness of related but independent entities that somehow skirt the rules that hinder them: Indian tribes, sovereign, running gambling, can help campaigns in an unregulated way; consultants, engineers, architects, public-private partnerships, transportation & harbor authorities, grant-funded non-profits -- all of these, if you look closely, rely in one way or another on discretionary approvals from politicians, and find ways to fund the politicians' campaigns or do 'independent' expenditures on their behalf. Witness the huge boondoggle of Honolulu Rail with taxpayer funded propaganda, bait and switch voter approval language, a bid award in direct disregard of contractor laws, a winning bidder fronted by local insiders, and nationwide funding support for the local politicians behind it. The solution is not obvious, but part of it is have the government DO LESS and let competing private companies do more. The less governments do the fewer opportunities for graft and nepotism and special favors for the insiders. Private companies are held in check by competitors and by the free choices of buyers with options. Public entities, especially in a one party state, are scarcely checked by anyone.
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  • 1. ETHICS COMMISSION C I T Y A N D C O U N T Y O F H O N O L U L U 715 SOUTH KING STREET, SUITE 211, HONOLULU, HAWAII 96813-‐3091 Phone: (808) 768-‐7786 Fax: (808) 768-‐7768 EMAIL: ethics@honolulu.gov Internet: www.honolulu.gov/ethics KIRK CALDWELL CHARLES W. TOTTO MAYOR EXECUTIVE DIRECTOR & LEGAL COUNSEL MEMORANDUM DATE: APRIL 29, 2014 TO: KIRK CALDWELL, MAYOR ERNIE MARTIN, CITY COUNCIL CHAIR CITY COUNCIL MEMBERS CC: DAN GRABAUSKAS, EXECUTIVE DIRECTOR & CEO, HONOLULU AUTHORITY FOR RAPID TRANSPORTATION EDWIN YOUNG, CITY AUDITOR DONNA LEONG, CORPORATION COUNSEL, DEPARTMENT OF CORPORATION COUNSEL MICHAEL FORMBY, DIRECTOR, DEPARTMENT OF TRANSPORTATION SERVICES ROGER MORTON, PRESIDENT & GENERAL MANAGER, OAHU TRANSIT SERVICES, INC. FROM: CHARLES W. GALL, CHAIR, HONOLULU ETHICS COMMISSION RE: EC No.13-527, ETHICS COMMISSION JURISDICTION ________________________________________________________________________ This memorandum addresses the administration of Article XI, Standards of Conduct, Revised Charter of Honolulu in order to foster and maintain ethical conduct. pursuant to ROH Sec. 3-6.3(f). We ask for your support in anticipation of the Commission introducing legislation this year which will include amending the definitions -101 or ROH Secs. 3-6.11, 3-8.1, to expand the applicability of the ethics laws to individuals that are currently not within the DRAFT
  • 2. ethics laws only apply to elected or appointed officers or employees of the city.1 We ask for your support in expanding the applicability of the operations and how tax payer dollars are spent, but have minimal or no accountability under the ethics laws for their actions. Such individuals include: Employees of an instrumentality to the city such as Oahu Transit Service 2 ; Secunded employees3 that provide city staff augmentation such as those 4 and 5 ; and Individuals who are not city employees that have significant involvement with city works, fiscal authority, and discretionary power such as the HART subcontractor who used inappropriate political and editorial content in his pro-rail blogs6 . Over the last several years, the Ethics Commission has faced an increase in complaints of unethical conduct by these individuals (collectively referred to as . Complaints include unauthorized access to confidential city information, nepotism, and use of taxpayer dollars for political purposes. Commission staff usually performs at least a preliminary investigation into these allegations to determine if there were city officers or employees who contributed to the misconduct. Despite finding probable ethics violations committed by these uncovered individuals, the Ethics Commission staff is unable to bring these matters before the Ethics Commission because of a lack of jurisdiction. 1 See RCH §§ 11-102.1(c), 11-103; 11-104. 2 ROH Sec. 13-8.3(a) provides: In accordance with Sections 13-8.1, 13-8.2, 13-6.2, and 13-4.1, Department of Transportation Services shall contract with the private, nonprofit corporation to manage, operate, and maintain the city bus system and special transit service on behalf of the city and shall be an independent contractor in relation to the city and shall be deemed an instrumentality of thecity for appropriatepurposesother than for labor and employment purposes. 3 Office of the City Auditor, Audit of the Honolulu Authority for Rapid Transportation (HART) Public Involvement Programs, Report No. 13-03 (Dec. 2013) at 25. Report No. 13-03, Appendix B (see discussion of InfraConsult II and InfraConsult III contracts). 4 See Memo to N. Koyanagi from L. Kahikina re ROH Sec. 2-18.6 Line Item Details - Operating Budget for Fiscal Year 2014 (Feb. 22, 2013) (Object Code No. 3006 - Staff Augmentation $100,000; Object Code No. 3049 - Staff Augmentation $2,500,000) 5 Report No. 13-03, Appendix B (see discussion of InfraConsult II and InfraConsult III contracts). 6 Office of the City Auditor, Audit of the Honolulu Authority for Rapid Transportation (HART) Public Involvement Programs, Report No 13-03 (Dec. 2013) at 17-19. DRAFT
  • 3. These uncovered individuals should be held accountable to the public because they are being paid for by millions of tax payer dollars, function as if they were city employees, and have significant influence over city operations.7 The enforcement and administration of the s ethics laws will protect the public against conflicts of interest, self-dealing and preferential treatment influencing government decisions. To that end, we look forward to discussing these matters with you in the near future. 7 See Memo to N. Koyanagi from M. Formby re Budget Communication No. 1 Operating Budget for Fiscal Year 2014 (Feb. 18, 2013) (Object Codes for OTS items 3070 et seq. is over $66 million); Office of the City Auditor, Audit of the Honolulu Authority for Rapid Transportation (HART) Public Involvement Programs, Report No 13-03 (Dec. 2013) at 24-25, 29-30. DRAFT