ETHICS COMMISSION, CITY AND COUNTY OF HONOLULU

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

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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 of "officer" or "employee" under RCH Sec 13-101 or ROH Secs. 3-6.11, 3-8.1, to, to expand the applicability of the ethics laws to individuals that are currently not within the jurisdiction of the city's ethics laws.

Currently, the city's 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 for "appropriate services" such as Oahu Transit Services (OTS)2; Secunded employees 3 that provide city staff augmentation such as those used for the Department of Environmental Services ("ENV")4 and Honolulu Authority for Rapid Transportation ("HART")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 blogs 6.

Over the last several years, the Ethics Commission has faced an increase in complaints of unethical conduct by these individuals (collectively referred to as "uncovered individuals"). 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.

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 Commission's enforcement and administration of the City's enforcement and administration of the city'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.

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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 the city for appropriate purposes other 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.

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.

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