Advisory Opinion No. 2014-5
From Honolulu Ethics Commission June 26, 2014 LINK: Unredacted version
The Honolulu Ethics Commission found that a City supervisor misused a City cellular phone for personal use. The larger underlying issue is that this case arose out of allegations of nepotism and preferential treatment that could have been mitigated if the Department had implemented the Commission’s instructions from a prior investigation of the same situation. The Commission reminds all City agencies that they should avoid having one spouse directly supervise the other.
II. FACTUAL BACKGROUND
On or about [date], Ethics Commission staff received a complaint that [Employee A], Supervisor,  Section,  Division,  Department, gives preferential treatment to his/her subordinate and [spouse], [Employee B]. Specifically the complaint alleged that: (1) Employee B is given more overtime (“OT”) than anyone else in the section; (2) Employee B is never held accountable for missing section meetings; and (3) Employee B is the only one in the section that has been issued a departmental cellular phone and Employee A allows Employee B to use it for personal use.
Employee B is a [position description]. Employee A has worked for Department since [year]. Employee A and B were married in [year]. At that time, Employee B was a contract hire with the Department and was not under Employee A’s supervision. Since [year], Employee B was promoted as [position]. Employee B’s job duties include, but are not limited to: [description of job duties].
Employee A has been Employee B’s direct supervisor since [year]. [Further description of Employee A’s position in the Department].
A. PRIOR ETHICS COMMISSION INVESTIGATION
An earlier investigation into similar allegations of preferential treatment by Employee A in giving Employee B excess OT (EC No. ) resulted in insufficient evidence for any ethics violations based on preferential treatment. At that time, the organizational make-up of  Division required Employee A to supervise Employee B because there was no other supervisor in that division. The Ethics Commission staff made a written recommendation to Department administration to implement additional monitoring to prevent actual and perceived preferential treatment. Department administration at that time only verbally informed the Division Head to monitor workloads and ensure workloads were equitable.
The current Division Head was unaware of staff’s prior monitoring recommendations between Employee A and Employee B. As such, the current Division Head had not taken any preventative measures.
Staff received confirmation that, for calendar year 2013, Employee B received more OT by [number] hours than any other supervisor at Employee B’s level in the  Division. However, staff also received information from several witnesses that there had been a problem with the  Division staff not wanting to return “on call” requests for help after hours, which would have allowed the other staff members OT.
C. MISSING MEETINGS
Approximately eight witnesses all confirmed that Employee B did not regularly attend mandatory weekly staff meetings, and did not appear to face any consequences for his/her absences. Employee B admitted that he/she did not attend the weekly meetings, although he/she should and agreed that he/she would start attending meetings in the future. Because there were no meeting minutes or attendance sheets, the Commission has been unable to verify the number of meetings in which Employee B was absent.
D.  CELLULAR PHONE ISSUANCE AND PERSONAL USE
On or about [year], Employee B was authorized to use and was issued a  cellular phone ( “Phone”) to [job duties]. Since that time, Employee A reissued and replaced the  Phone for Employee B to continue using it to [job duties].
Staff verified that Employee B is the only  Division employee other than Employee A to be issued a  cellular phone. Staff obtained AT&T invoices from December 10, 2012-February 9, 2014 for the  Phone. Employee B admitted that he/ she does use the  Phone for personal use and was cooperative in identifying calls forwarded to this  Phone that were personal. Employee B stated that it was his/her understanding that the city phone had a “block” account payment so that it would not create an additional cost to the city if he/she used it for his/her own personal use. Employee B was willing to reimburse the cost of the personal use of the  Phone which was $97.40 for the time that was analyzed.
Department’s policy on Department issued cellular phones requires that the phones only be used for authorized  purposes. [citation] (“Policy”). Employee B was held accountable to this Policy and was aware of this Policy at all relevant times.
Further, the  Policy states that employees shall reimburse the department for all unauthorized calls made and received on department-issued mobile telephones. Reimbursement shall be made in accordance with the current rates listed in the city telephone contract or price schedule.
E.  DEPARTMENT  DIVISION REORGANIZATION
EC Staff learned that the  Division was now undergoing a reorganization . Under the reorganization it was possible that Employee B could be moved so that he/she would no longer be under Employee A’s supervision. Employee A and  Department Administration were amenable to moving Employee B from Employee A’s direct supervision.
III. PROCEDURAL HISTORY
In light of the current  Division reorganization, [other factors], Commission staff determined that it would not be in the best interest of the public to pursue allegations of preferential treatment.
As such, on May 30, 2014, staff brought this case before the Ethics Commission to determine if there was sufficient evidence to show probable cause only for the misuse of the  Phone. The EC unanimously found that there was probable cause of an ethics violation under Revised Charter of Honolulu (“RCH”) Sec. 11-104. The Notice of Alleged Violation (“Notice”) was served on Employee B.
On June 12, 2014, Complainant issued an amended Notice to clarify certain facts. After good faith negotiation, the parties came to an agreement that Employee B reimburse the city the amount of $97.90 for the cost of his/her personal phone calls on the  Phone in exchange for Complainant’s recommendation of dismissal of the case and a formal advisory opinion issued by the EC.
On June 26, 2014, Employee B and staff in their capacity as Complainant in this matter appeared before the EC requesting approval of the settlement agreement. The EC unanimously approved the Settlement Agreement.
IV. ANALYSIS AND DISCUSSION
Employee B admitted to violating the Revised Charter of Honolulu (“RCH”) Sec. 11-104 for using the  Phone for personal use. The Commission recognizes that there is a “reasonable personal use” exception to the general prohibition against using city resources for non-city purposes. The reasonable personal use exception allows personnel to use a city resource for personal convenience that is: “(1) for a brief time; (2) does not interfere with the productivity of the employee; (3) does not create an additional cost to the city; and (4) is not for business financial or commercial purposes.” Guidelines on the Use of City Resources (Oct. 9, 2007) (“Guidelines”).
Employee B’s use of the  Phone for personal use does not fall within the “reasonable personal use exception” because there was an additional cost to the city of approximately $100.
While Employee B clearly violated Revised Charter of Honolulu Section 11-104 when he/she misused the  Phone for personal calls, the more troubling issue that the Commission wanted to highlight in this opinion is the perception of preferential treatment when one spouse directly supervises the other. The Commission also wants to take this opportunity to provide recommendations to assist city officers and employees in eliminating this type of situation city-wide.
Interviews with witnesses in this case generally resulted in the same sentiment: that having one spouse supervise the other was “inappropriate”, “unhealthy”, and created a “fear of retaliation” for others to bring issues about Employee B to Employee A. In addition to the complainant, many witnesses also perceived that Employee A gave Employee B preferential treatment including: more resources and support than any other supervisor, more flexible hours, more opportunities for OT, leniency in regard to dress code, leniency in not attending staff meetings, issuance of a  cellular phone, leniency in using the  Phone for personal calls, bolstered support of project evaluations and work performance, and Employee B’s subordinates receiving opportunities for internal promotions not available to others.
This case has shown that situations where spouses, or those with close personal relationships, who supervise each other create havoc on the morale and efficiency of the Division. There is no doubt that there was perceived preferential treatment in this case, which can be just as damaging as actual preferential treatment. In addition, avoidance of this type of situation can protect spouses from being unfair targets of misplaced allegations of preferential treatment. The Ethics Commission has consistently recommended that this type of supervisor/subordinate situation be avoided for these very reasons.
read … The Rest of the Report LINK: Unredacted version