Resolution of Charges 2015-1- State Employees’ Acceptance of Free Golf

Hawaii Ethics Commission, February 2, 2015 (excerpts)

The Hawaii State Ethics Commission (“Commission”) investigated a number of state employees for accepting golf from contractors, consultants, vendors, and/or other entities that had contracts or other business relationships with the State of Hawaii. The golf in question included both charity golf tournaments and recreational rounds of golf. The Commission also examined whether the employees failed to report the golf that they appeared to have accepted on gifts disclosure statements. As part of its investigation, the Commission reviewed records from certain golf tournaments and from businesses that appeared to have paid for the employees’ golf. The Commission also interviewed employees, golf tournament organizers, and representatives of the businesses.

Based on the information gathered through its investigation, including information provided by the employees, the Commission issued formal ethics charges against nine employees (hereinafter, “Respondents”) for violations of the State Ethics Code, Chapter 84, Hawaii Revised Statutes (“HRS”), relating to their acceptance of the free golf and, in certain instances, their failure to report the golf as a gift. Based on the totality of the facts and circumstances, the Commission believed that it was appropriate and in the public interest to resolve the charges against the Respondents without further proceedings. To resolve the charges, each Respondent paid an administrative penalty to the State of Hawaii, filed a gifts disclosure statement, and agreed that the Commission could issue a public document describing his alleged misconduct.

The Commission has not made any findings or conclusions that any of the Respondents, in fact, violated the State Ethics Code. The Commission renders such findings and conclusions after an administrative hearing, which has not been held. Instead, this “Resolution of Charges” is being issued pursuant to the Commission’s agreement with the Respondents to resolve the charges without further proceedings.

The Commission also resolved the cases of 21 other employees without issuing formal charges against them, where each employee paid an administrative penalty. Those cases are described in Resolution of Investigation No. 2014-1 and are not the subject of this Resolution of Charges.

I. THE COMMISSION’S INVESTIGATION

The Commission initiated an investigation after learning that a number of Department of Transportation (“DOT”) employees appeared to have played in charity golf tournaments on teams that were sponsored by DOT contractors, consultants, and/or vendors. The Commission’s investigation was narrow in scope. The Commission had sufficient information to suggest that DOT employees had played in eight specific golf tournaments and obtained records from those tournaments (“Tournament Records”). The Commission did not review records from other golf tournaments. Based on the Tournament Records, the Commission obtained records from 15 businesses (“Business Records”) that appeared to have paid for teams on which DOT employees played. The Business Records also revealed that sponsored_ teams included employees from the Department of Accounting and General Services (“DAGS”), the Department of Land and Natural Resources (“DLNR”), the Department of Agriculture (“DOA”), the Department of Education (“DOE”), and the University of Hawaii (“UH”). Based on the information contained in the Tournament Records and Business Records, the Commission opened investigations relating to 49 employees to examine whether they may have violated the State Ethics Code by accepting free golf. The Commission did not expand the scope of the investigation to include employees of all state agencies. At the time the Respondents allegedly accepted golf, they were employees of DAGS, DLNR, DOA, DOE, DOT, and UH.

The Commission’s investigation yielded sufficient information to support formal ethics charges against the Respondents for accepting golf. A charge commences formal proceedings against an employee that may result in a public hearing.

The Respondents appeared to have accepted free golf from contractors, consultants, vendors, nonprofit organizations, and/or other entities (collectively, “Firms”) that had contracts or other business relationships with the Respondents’ state agencies or were significantly affected by, or involved in, the Respondents’ official action. Some of the Respondents appeared to have accepted free golf on numerous occasions over a period of years from the same Firms. The free golf included golf tournaments and recreational rounds of golf. Typically, golf tournament entry fees included green fees, cart fees, food and beverages (including, in most cases, a dinner banquet after the tournament), gifts given to all participants, and prizes. The cost to play in the golf tournaments ranged from approximately $88 to $800 per player per tournament. In determining the value of a golf tournament, the Commission included the golf and all tournament-related gifts, prizes, and other benefits that the Respondents received. The cost of a recreational round of golf ranged from approximately $35 to $85 per person per round. In determining the value of a recreational round of golf, the Commission included the golf and all gifts that the Respondents received as part of the golf outing, including food and beverages.

Some of the Respondents admitted that they had played in golf tournaments and/or recreational rounds of golf; admitted that they did not pay for the golf; and provided information regarding other golf tournaments and recreational rounds of golf in which they may have played for free that were in addition to those instances uncovered by the Commission’s investigation.

Based on the Commission’s investigation, including information provided by the Respondents, it appeared that the Respondents collectively accepted free golf from the following Firms: (Rail contractors highlighted in yellow)

1. Akinaka & Associates; 
2. Ameron Hawaii; 
3. Awa & Associates; 
4. Bert S. Mitsunaga; 
5. Bowers + Kubota; 
6. Cement and Concrete Products Industry of Hawaii; 
7. Central Construction; 
8. Community Planning & Engineering; 
9. Design Partners; 
10. Grace Pacific; 
11. Hawaiian Cement; 
12. Island Ready-Mix Concrete; 
13. KAI Hawaii; 
14. Kihei Gardens and Landscaping Company; 
15. KSF; 
16. Masonry Institute of Hawaii; 
17. Mitsunaga & Associates; 
18. Next Design; 
19. Okahara and Associates; 
20. Parsons Brinckerhoff; 
21. R. M. Towill Corporation; 
22. Ronald N. S. Ho & Associates; 
23. S. Nakagawa Mechanical Consultants;  
24. Sodexo; 
25. SSFM International; and 
26. TM Designers.

It also appeared that additional Firms paid for the Respondents’ golf; however, the names of those Firms were not known.

...

the Commission’s investigation indicated that the Firms that appeared to have paid for the Respondents’ golf had ongoing, or were interested in developing, business relationships with the Respondents’ state agencies. It appeared that Respondents took official action directly affecting or involving the Firms that appeared to have paid for their golf. Depending upon the positions the Respondents held in their agencies, the Respondents’ official action directly affecting or involving the Firms included a wide range of discretionary action, including but not limited to: 

1. Reviewing contract and project proposals; 
2. Participating in the review, evaluation, and/or selection of consultants, contractors, and/or other vendors for the award of contracts, or otherwise participating in the contracts award process; 
3. Reviewing, overseeing, managing, supervising, or monitoring contracts and projects for the agency; 
4. Planning, budgeting for, and coordinating new construction, renovation, improvement, repair, maintenance, and other projects for the agency; 
5. Overseeing and/or participating in the planning and design of agency projects; 
6. Developing the scope of work for agency projects; 
7. Participating in project management or construction management, which may have involved having direct oversight of the Firms’ work, approving payments to the Firms, and/or considering change orders under which the Firms were entitled to additional payments;  Overseeing and/or participating in the inspection of agency projects; 
8. Overseeing, managing, or supervising other employees who had official interactions with the Firms; 
9. Approving project inspection and project completion notices; 
10. Developing, reviewing, testing, and/or evaluating specifications for products and materials, used in agency projects, that were promoted by a Firm; 
11. Officially interacting with a Firm regarding products and materials promoted by the Firm or other industry related matters affecting the Firm’s interests; 
12. Approving fiscal and procurement transactions affecting the Firms; 
13. Performing administrative functions to implement capital improvement projects and other projects; 
14. Having broad oversight or authority over matters affecting the Firms; and 
15. Making decisions and recommendations and taking other discretionary action affecting the Firms.

...the Commission examined whether there was a substantial “state benefit” associated with the Respondents’ acceptance of the golf to offset the reasonable inference that the golf was offered to influence or reward the Respondents in the performance of their official duties....

Although the Commission has no jurisdiction over the Firms that appeared to have paid for the Respondents’ golf, the Commission strongly urges those Firms and others doing business with the State to consider the State Ethics Code before offering gifts to state employees, including invitations to play golf....

III. RESOLUTION OF CHARGES AND ADMINISTRATIVE PENALTIES

The Commission and the Respondents agreed to resolve the charges without further administrative action on the part of the Commission. Under the terms of the resolution, each Respondent paid an administrative penalty to the State of Hawaii for accepting free golf that appeared to be prohibited by the State Ethics Code. In determining the penalty amount for each Respondent, the Commission considered the Respondent’s specific circumstances, including his state position; his official duties, including any official duties he had with respect to the Firms that appeared to have paid for his golf; the number of times he appeared to have accepted free golf; the number of times it appeared that he failed to report the golf; and other facts and circumstances specific to each case.

The following tables summarize the golf that appeared to have been accepted by each Respondent in violation of the gifts law and/or the fair treatment law; and the golf that each Respondent allegedly failed to report in violation of the gifts reporting law. The agencies listed for each of the Respondents are the agencies they worked for when they were believed to have accepted the golf in question. The positions listed for the Respondents are the positions they held at that time. The tables do not necessarily reflect a Respondent’s current employment status, state agency, or position. The charges were based on golf that the Respondents appeared to have accepted during the time period covering 2008 through 2013.

1. MARSHALL ANDO Department of Transportation, Harbors Division Engineering Branch, Design Section Head Administrative Penalty: $7,500
2. GEROBIN CARNATE Department of Transportation, Highways Division Materials Testing and Research Branch, Structural Materials Section Head Administrative Penalty: $6,000
3. BRIAN KASHIWAEDA University of Hawaii Community Colleges Facilities and Environmental Health Office, Director Administrative Penalty: $3,200
4. BRIAN MINAAI University of Hawaii Associate Vice President for Capital Improvements Administrative Penalty: $3,000  (NOTE: According to his LinkedIn page, Minaai retired from UH in December and is now a 'consultant'.  Fat pension, for sure.)
5. ERIC NISHIMOTO Department of Accounting and General Services Public Works Division, Project Management Branch Chief Administrative Penalty: $5,600
6. ALVIN TAKESHITA Department of Transportation, Highways Division Highways Division Administrator Prior: Engineering Program Manager (Traffic Branch Head) Administrative Penalty: $5,750
7. DAVID TAMANAHA University of Hawaii-Maui College Vice Chancellor for Administrative Affairs Administrative Penalty: $1,750
8. JADINE URASAKI Department of Transportation Deputy Director for Capital Improvement Projects Prior: Department of Education Facilities Development Branch, Public Works Manager Administrative Penalty: $1,500 (Now back at work as DOE Facilities Development Branch Public Works manager.)
9. 'ENGINEER' Department of Agriculture Prior: Department of Land and Natural Resources Administrative Penalty: $1,500

read ... The Rest of the Report including pgs 11-19 with details of which contractor paid for free golf for which violator and how often

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Minaai and Free Golf:  Recent Coverage

• Feb, 2013: Mitsunaga Names Names (Minaai), Slams UH for Favoritism Towards Kobayashi
• March, 2013: UH Contracting: Minaai Career Begins With 1982 Election Fraud
• Sept, 2013: Man (Minaai) at center of university procurement scandal back on the job
• July, 2013: Ethics Investigation: Legislators Accepting "Significant Gifts and Prizes" from State Contractors
• Dec, 2013: Ethics Comm: Mitsunaga Showers DoT Engineer with Free Golf, Flights, Oakleys and Rolex
• May, 2014: Honolulu Ethics: 100 Building Permits, Free Golf, Prizes for 40 City Employees
• Sept, 2014: Ethics: Contractors Give Free Golf to Dozens of State Employees

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Ethics violations prompt gift disclosure reminder

News Release from UH, February 3, 2015

Three University of Hawaiʻi employees charged with State Ethics Code violations have accepted full responsibility for their actions and paid fines ranging from $1,750 to $3,200. The charges stem from the employees accepting free rounds of golf and related amenities from businesses that work with UH and for not disclosing the gifts.

The UH employees, along with six other employees from other state agencies, were charged with violating State Ethics Code Chapter 84 (PDF) of the Hawaiʻi Revised Statutes.

• February 2015 State Ethics Commission report (PDF)

In September 2014, seven other UH employees were investigated for the same types of violations but were not charged and agreed to pay fines ranging from $500 to $1,500.

• September 2014 State Ethics Commission report (PDF)

All UH employees are bound by the State Ethics Code and are instructed to annually review the code and make any pertinent disclosures. Students and other UH stakeholders are also encouraged to review the policy to understand what is expected of UH employees in terms of ethical behavior....