Totto meeting memo


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Totto meeting memo

  1. 1. ETHICS COMMISSION CITY AND COUNTY OF HONOLULU 715 SOUTH KING STREET, SUITE 211, HONOLULU, HAWAII 96813-3091 Phone: (808) 768-7786 ∙ Fax: (808) 768-7768 ∙ EMAIL: Internet: KIRK CALDWELL MAYOR CHARLES W. TOTTO EXECUTIVE DIRECTOR & LEGAL COUNSEL November 14, 2013 TO: CHAIR CHARLES GALL, VICE CHAIR RACHAEL WONG AND MEMBERS OF THE ETHICS COMMISSION FROM: CHARLES W. TOTTO, EXECUTIVE DIRECTOR AND LEGAL COUNSEL, AND LAURIE A. WONG, ASSOCIATE LEGAL COUNSEL SUBJECT: AGENDA ITEMS FOR THE NOVEMBER 18, 2013 MEETING, OPEN SESSION I. CALL TO ORDER II. NEW BUSINESS A. For Decision: Request for a Motion for a Letter to be Sent from the Commission to the Administration Advocating for an Increase to the Commission’s Fiscal Year 2015 Budget. At the last meeting, staff explained that budget independence is required to maintain an independent, credible agency. The Commission decided that the base pay for the ALC and EDLC for FY15. According to Donna Leong, any increase in our budget must be approved by her, the Department of Budget and Fiscal Services (BFS) and the MD. 1. The Difference in Budget Amounts between Commission Staff and COR Our workload in FY 13 increased by 27% for requests for advice and 25% for complaints investigated over the FY08-12 average. Unsurprisingly, this trend continues because of the mandatory ethics training for all employees. As a result as of November 7, we were on track for another 18% increase in requests for advice and a 21% gain in complaints investigated over FY13. Here is a summary of the difference between what COR proposes and the EC staff recommendation for the FY15 budget. 1. EDLC salary: EC = $108,000; COR = $104,000. Difference = $4,000.
  2. 2. 2. ALC salary ($74,000); computer ($1675), bar dues ($480), Westlaw legal research ($1800): EC = $77,955; COR = $0. Difference = $77,955. 3. Assistant EDLC: EC = $79,000; COR = $79,000. Difference = $0. COR will not support the Assistant EDLC as a new position, but will support it if we reallocate our current Associate Legal Counsel position. This means that we would lose the ALC position. I had hoped to retain the position, even if it was unfunded, to make it easier for us to add another attorney or investigator in the future. A new position of Assistant EDLC was requested, in addition to the ALC, because of the increase in requests for advice and complaint investigations that have occurred over recent years, even before the city instituted mandatory ethics training for all 8,500 of its current employees. As detailed in OPEN-1, the Commission’s workload increased by over 25% in FY13 when compared to the average for FY08-FY12. Without the additional position, the Commission staff resources will once again be outstripped in FY15. 4. Legal Clerk I with a salary of $27,756 and a computer at $1675, total $29,431; COR = $29,431. Difference = $0. 5. Office space expansion for LCI and AEDLC: EC = $9,500; COR $7,000. Difference = $2500. The build out cost is unknown at this time. COR supports this increase because it relates to the new legal clerk position. If we have an additional lawyer, we will need to add another $2500 annually for office space. 6. Reallocate Investigator II position to an Investigator IV position. Given the number and complexity of the complaint investigation cases, having an Investigator IV on board is necessary. An Investigator IV “performs the most complex investigations,” as described in the Class Specification. See, OPEN-1, p.3 and attachments. (OPEN-1 is a memo from Letha DeCaires to me discussing the investigative needs of the office.) An Investigator II salary is on a range of $45,576 to $67,488; an Investigator IV salary is currently $55,500 to $82,128. The difference between the lowest pay for a II and the highest pay for a IV is about $36,500, so the difference between COR’ recommendation and the staff’s = $36,500. On November 14, COR emailed us that it would approve the contract for Ms. DeCaires for another 3 months, although contract will likely be delayed because it was held by COR. 7. Investigator funds for ORI. As detailed in Item B, COR is withholding its investigative reports under a claim of attorney-work product. Staff has asked COR to bring the issue to the MD to allow the EC to use the investigative reports, allocate sufficient funds to the EC to conduct the investigation or work on some other solution. We have received no response from COR or the MD. Staff estimates it may need another $40,000 if it has to hire outside investigators for this case. Recommendation: Staff requests that the Commission state its support for the increased budget recommended by staff above in a letter to the Mayor and the Managing Director. 2
  3. 3. B. For Discussion: Corporation Counsel’s Lack of Response to certain Commission Staff Requests. Since September, Donna Leong (Corp Counsel) and other cabinet members have failed to provide responses in several significant outstanding EC matters. As described below, the information requested is central to conducting the work of the EC, such as investigating alleged misconduct, taking positions on bills at Council, budget and case planning or other Commission matters. This is unique in my experience at the EC, requires significant effort to bring before the Commission and delays and detracts from doing the Commission’s primary work. On October 10, 2013, I sent a reminder email to Corp Counsel, below. The italics are my comments for your review. Because similar problems continue to arise, I have included them after the discussion of the email. Dear Donna, I would appreciate COR responding to the following matters that continue to outstanding with COR: 1. The Commission's Request for Approval and Authorization: Electronic Files, dated September 26, 2013 to Mark Wong [Director Department of Information Technology (DIT)], Carolee Kubo [Director of the Department of Human Resources (DHR)] and Ember Shinn [the Managing Director (MD)]. The requests appear to have been sent from either DHR or MD to COR. Status: An email was sent to you on October 3 asked for immediate action, but there was no response. On October 7, I asked Ardis for help to locate them. As of yesterday, she hadn't been able to locate them. These requests are needed to conduct investigations of alleged misconduct. These Requests for Approval and Authorization to review electronic files are regularly used by various agencies to obtain electronic information like emails on city computers. We use a form provided by the Director of the DIT. Much of the factual basis in the Patty Teruya case was provided for by our use of this process. Advisory Opinion No. 2011-8 (Ms. Teruya accessed over 2,000 websites not related to work and sent almost 200 emails unrelated to work from her city computer in a few-month period.) In the three cases for which we sent Requests, we asked only for emails. Under RCH Sec. 11-104 and the city’s computer use policy, city personnel are prohibited from using city email access to send non-city related emails. There is no privacy protection for the emails because they are supposed to relate only to city work. When we did not receive approval or responses to the September 26 Requests, we sent another set of Requests for the same information October 11. A redacted copy of our Request is attached as OPEN-2. Unfortunately, no response was received from DHR or COR. Calls and emails asking for a response from DHR went unanswered. The delays have slowed the investigation of 3 cases and impeded our preparation for a witness in the contested case hearing that was heard last month. 3
  4. 4. Finally, on November 5 we received the attached memorandum from DHR denying the EC’s requests. OPEN-3. The response muddies the water. No legal objection to producing the records is made, only a vague request for “more background and justification.” Of course the Commission is not allowed to provide more factual background and justification because the investigations are confidential under personnel law, ROH Sec. 3-6.12(a)1 (the EC’s confidentiality provision) and the state’s open records law. The Request amply states the Charter and ordinance sections and other legal justifications that require the city agencies to produce the information. In contrast to our Request, which was denied, look at OPEN-4. This is a July 18, 2013 request approved by COR, DHR, DIT and the MD that gives no background and justification for the complete computer records of a city employee. On its face, DHR appears to be using a different standard for our Requests. Options: (1) Meet with the DHR director and/or the MD. The DHR director has said she is too busy to meet. Discussions with the Managing Director on this and other issues may be useful, but will result in further delay. (2) The EC could keep channels open with the administration, but simultaneously subpoena the requested records. That would compel the administration to either produce the information or state the legal reasons, if any, why the EC should not be provided the information. (3) Staff is prepared to inform the Commission of other legal options the Commission may take in executive session. 1 Sec. 3-6.12 Confidentiality of commission records. (a) All advisory opinions, files, records, reports, writings, documents, exhibits, electronic records and other information prepared or received by the commission or its staff or consultants relating to a request for advice or a complaint shall be held in confidence and no information as to the contents thereof shall be disclosed, unless such disclosure is: (1) The result of the information being presented to or received by the commission at a hearing or meeting that is open to the public; (2) Ordered by a court of competent jurisdiction; (3) Reasonably required by the commission, its staff or consultant to investigate or otherwise discharge its duties regarding the request for advice or the complaint, including but not limited to providing information to the appointing authority or council, in the case of a councilmember, in support of the commission's advisory opinion and recommended disciplinary action, unless otherwise protected by law. If disciplinary action is taken against an employee, the employee's exclusive representative shall also be entitled to the information, unless otherwise protected by law; or (4) Allowed or required by applicable law. (b) Any commission member, commission staff member or consultant who discloses information related to a request for advice or complaint, unless disclosure is allowed pursuant to subsection (a), shall be subject to the applicable provisions of Section 11-106 of the Revised Charter and Section 3-8.5. (c) The disclosures of conflicts of interests as provided in the Revised Charter shall be made matters of public record at any time that such a conflict becomes apparent. 4
  5. 5. 2. My September 26 email to you asking you to inform the MD regarding the ORI ethics investigation (EC Nos. 12-218 and 13-239) that the Commission needs the COR investigative reports or sufficient resources to conduct an independent review. Status: No response. Complaints and requests for the EC to examine possible ethics violations by city officers and employees regarding ORI were submitted from various sources, one of whom was the Managing Director on behalf of the city. As reported at an earlier meeting, COR will not share its ORI investigative reports with the EC. Nor has it committed to any funding for our review. So, we asked Corp Counsel to take the matter to the MD, but we have had no response over the last 2 months. Without sufficient resources, it will be very difficult for staff to do a reasonable review. Options: (1) Meet with the MD and Corp Counsel; (2) Request an additional sum budgeted to FY15 for use in the investigation. 3. Email requests dated September 6 and 26 and phone call on October 9, 2013 to Paul Aoki for electronic documents in the ORI investigation, EC Nos. 12-218 and 13-329. Status: No response. We received a response from Mr. Aoki, but have not received the discs. 4. The Commission's Amended Request: Scope of Representation of City Personnel by Council in Ethics Matters, dated September 6, 2013. Status: No response. This was initially asked of COR in early 2013. An amended request was made to the Corp Counsel on September 9. COR responded on October 25. 5. Reminder -- FY15 budget information for Commission's November 4, 2013 meeting. Status: Information due on October 18. Some, but not all, of the requested information was provided by COR on October 25. For example, COR did not provide the COR deputies’ salaries that it had promised the EC and upon which it based its recommended salaries for EC staff. I'd appreciate a response. Chuck There are two other matters that have resulted in delays or denials. 6. Our request dated September 20, 2013 for access to electronic data files used by investigators (at COR, the Department of the Prosecuting Attorney, the Liquor Commission and the Department of Attorney General) that allow for background checks of investigation 5
  6. 6. witnesses and subjects regarding their history of violence and drug use, and other information. This is critical to for the personal safety of our investigator and staff, as well as to obtain other relevant information in the course of an ethics investigation, as detailed in OPEN-1, pages 6-7. On November 4, COR denied the request. OPEN-5. 7. Our repeated requests since June 1 to discuss Bill 32 (ethics coverage for bus transit provider) with COR, DTS and/or Oahu Transit Services have been denied. However, COR did send a copy of the proposed OTS ethics policies in mid-September. Executive Matters and Legal Affairs Chair Councilmember Menor has shared the EC staff’s comments with the various stakeholders. But after several weeks the DTS director, Michael Formby, has still not responded fully to basic questions about how DTS monitors ethics issues that arise at OTS. Two points are clear, (1) we have not had these types of problems with COR or administrations in the past, and (2) the various actions and inactions combine to seriously interfere with the Commission carrying out its duties for the public. An overall resolution is necessary or the Commission will be placed in a position where it will have to replace cooperation with the administrative agencies with legal demands, which will benefit no one. C. For Discussion: Request by the Star Advertiser to have a Question and Answer Interview with the Executive Director/Legal Counsel. A brief report will be made at the meeting. D. For Information: Corporation Counsel’s Response to the Commission’s Amended Request Re Scope of Representation of COR in Ethics Matters, dated September 6. 2013. This matter was deferred from the November 4, 2013 meeting. EXEC-7 and EXEC-8 are the Commission request and COR’s response, respectively and are included in Dropbox for November 4. Should you have any questions or comments, please contact Laurie or me. 6