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HomeMy WebLinkAbout2019-12-11 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Wednesday, December 11, 2019 10:00 a.m. to 12:56 p.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Rick Robinson, Chair David Wiseman, Vice Chair Nan Sumner-Mack, Member Lawrence L. Heintz, Member Angelic Malia Hall, Deputy Corporation Counsel Maria Pagala, Secretary 1. CALL TO ORDER (10:00 a.m.) Mr. Robinson: Okay, we'll call ourselves to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:00 a.m.) Mr. Robinson: Are there any statements from the public on agenda items? No one signed up Maria? I don't think so. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF OCTOBER 9, 2019. (10:00 a.m.) Mr. Robinson: Okay, approval of the regular session minutes of October 9, 2019. Has everyone had a chance to review those? Is there a motion to approve the minutes, as presented? Mr. Heintz: I wasn't present, but I'll make a motion to approve. Mr. Robinson: Is there a second? Ms. Sumner-Mack: Second. Mr. Robinson: Okay, it's been moved and seconded that we approve the minutes of October 9, 2019. Any further discussion. If not all those in favor say aye. Contrary minded. Motion and Vote: Mr. Heintz moved to approve the October 9, 2019 minutes. Ms. Sumner-Mack seconded the motion. All members voted aye. 1 4. COMMUNICATIONS (10:01 a.m.) a. Letter from a member of the public dated September 30, 2019 requesting an investigation into an alleged assault incident outside of the County Building. Mr. Robinson: Has everyone had a chance to see that? Mr. Wiseman: Yeah. Mr. Robinson: So we'll just note this and file it. Mr. Wiseman: Yeah. Because, I mean it should be reported to the police not to us. Mr. Robinson: Right. It's unsigned and we have no idea. Mr. Heintz: Do we know if it was reported to the police? Mr. Robinson: I don't think anyone knows. Did you hear? Mr. Wiseman: No indication. Mr. Robinson: No. Mr. Heintz: Would this be a matter that would go to the Police Commission? Ms. Hall: It would only go to the... Police Commission is...jurisdiction is over alleged misconduct of officers or employees of the police department so... Probably not. Mr. Wiseman: We were one of the several recipients of that anonymous letter which also went to all the media...including TV so. Mr. Robinson: So we're assuming that it went to the police commission. Mr. Wiseman: Well, I don't think it's within our parameters to make an assumption or take any action on it. Just to note it. Mr. Robinson: It's unsigned. Mr. Wiseman: And just for clarification, there is another anonymous letter right? Ms. Sumner-Mack: Yes. Mr. Robinson: Yeah. We'll get to that one, a little bit further. 2 b. Letter from Hawaii County Council Chairman dated October 9, 2019 regarding Hawai`i County Board of Ethics request to appear at County Council meeting. Mr. Robinson: And the next item on our agenda is the anonymous letter... Oh I'm sorry. Item b. letter from Corporation Counsel...to me. We had send a letter to the Corp. Counsel. This is from Aaron Chung. Ms. Hall: Sorry, you mean, County Council. Mr. Robinson: County Council. Ms. Hall: Yeah. You said Corp. Counsel. Yeah. County Council. Mr. Robinson: Too many counsels, I get confused. Asking as the Board had indicated to present to them...you know the results of our first conference that we went to on the ethics as well as you know I figured that that would lead into a discussion with the County Council regarding the recent ethics complaint on Council person Kierkiewickz. And this is a letter back from Aaron Chung as Chair of the Council. And it more or less stated that there were certain requirements...that they wanted to have fulfilled prior to going to the County Council. I didn't think that there was really any response that was needed. We had indicated a willingness to present to the Council and I just wanted to get the thoughts of my four board members. Mr. Wiseman: Would discussion on this matter be appropriate for executive session. Ms. Hall: Yeah. If you guys are wanting to take further action, then maybe we would like to discuss it with me first in executive session. Mr. Wiseman: I'm gonna make a motion then, this be deferred to for executive session. Ms. Sumner-Mack: I'll second that. Mr. Robinson: Okay it's been moved and seconded that we defer discussion regarding the letter of October 9, 2019 from Hawai`i County Council Chairperson Chung to executive session later in the meeting. Any further discussion? If not, all those in favor say aye. Contrary minded. Okay, we'll defer this to later. Motion and Vote: Mr. Wiseman moved to defer matter to executive session to discuss with Counsel. Ms. Sumner-Mack seconded the motion. All members voted aye. 3 12:53 a.m. The Board returned into regular session. Mr. Robinson: Back into regular session. Response to Chung. I think we're very clear. I'll respond to Mr. Chung regarding his letter and then I will address the two points that we wanted to make. So we'll be good on that...on the formal written disclosure...we don't do those. And that we wanted to know if Ms. Kierkiewicz did perform as required on the informal advisory opinion. Ms. Hall: You just have to...a motion for the records request and then a response. Mr. Robinson: Yeah. So is there a motion to provide the response to the County Council? Mr. Wiseman: So moved. Mr. Robinson: Is there a second? Ms. Sumner-Mack: Second. Mr. Robinson: Okay so moved and seconded. All those in favor say aye. Okay. Motion and Vote: Mr. Wiseman moved to provide a response to the County Council and submit a records request. Ms. Sumner-Mac seconded the motion. All members voted aye. c. Anonymous letter dated November 14, 2019 with comments and questions regarding the law and various issues. (10:05 a.m.) Mr. Robinson: And then item c. on the communication. This also deals with an accusation against Ian Lee Loy and wanted to know why there's no action.. .sweeping it under the ruff...which I think was the same statement that was used in the other... Mr. Wiseman: Yeah. It's almost the same except, the first one we discussed was referenced an alleged assault outside the building here. This one alleges some type of assault in the workplace. Mr. Robinson: Right. Mr. Wiseman: That's the distinction in that and I would take the same action which is just acknowledge it and we don't... We can't do anything. This is not within our parameters I don't think. Mr. Robinson: Right. 4 Mr. Heintz: I have a question about that. Do we know? What agency is addressing this? Ms. Hall: Well, all I have is the information that's in these letters. I don't have any further information. Mr. Wiseman: And if it's a workplace incident. I mean. There's recourse in the workplace. Ms. Hall: Yes. Mr. Robinson: But it doesn't have a date or a time. Mr. Wiseman: No. Mr. Robinson: It just...outside of couple of months ago. Mr. Wiseman: Yeah. Mr. Robinson: So it's really... Ms. Sumner-Mack: And there's no way to reply. Because we don't know who...who sent it. Mr. Wiseman: So I move we just...we just file it. It's acknowledged and we just file it. No action. Mr. Robinson: Is there a second? Mr. Heintz: I have a question. Mr. Robinson: Okay. Well. let me get a second before we... Ms. Hall: And then you can discuss. Mr. Robinson: And then we can discuss. Ms. Sumner-Mack: Second. Mr. Robinson: Okay so moved and seconded. Any further discussion. Larry? Mr. Heintz: I'm gonna vote against this motion and here's the reason. When we have our two letters that are raising an issue that's...of professional misconduct...and that's why one...and against the police officer...apparently, allegedly...by a police officer against an employee. We don't know who's raising this issue but...I mean 5 there's like a six weeks or...there are two letters. 1 mean that's why I asked, is this being raised by the...possibly the Police Commission? But if... Ms. Hall: No complaints have been filed with the Police Commission at this time. Mr. Heintz: One of the charges to the ethics committee is to investigate...also to investigate when issues are brought forward. And I'm concerned that this is...shouldn't at least...shouldn't go...simply go away. It's a serious allegation. Mr. Wiseman: I think while Mr. Roth is here, incidentally this letter referred...mentioned your name in here too. Mr. Heintz: Did you receive this letter, Mr. Roth? Mr. Roth: [Inaudible] Mr. Heintz: That's a September 30th letter and a November 14th letter. Both letters I believe use your name. Ms. Sumner-Mack: I'm wondering if it's appropriate to...to bring this up to him. He's here for a different...a totally different person...reason. Mr. Roth: So I don't think I received either of these letters. However...I can't talk on this case. But you should know that it's not uncommon for cases to be under investigation and the public doesn't really have any information. Mr. Heintz: Right. Mr. Roth: It's inappropriate for the Police or the Prosecutors Office to make comments on those cases because it has... It could have a chilling effect of changing testimony or around or anything like that and so. Without saying more, if you just have the parameters and I think the Judge realizes this too. Is that sometimes it takes us a while to charge this cases. Right now we're getting cases from about three, four months ago into our office. Those cases get assigned to a deputy. Our screening unit...those deputies have you know over a hundred case each and so...during those periods of time...no information will be given out about any of those cases. And so looking at this letter...you can't tell what is going on. Mr. Wiseman: It is very possible the system is working. 6 Mr. Roth: It's very possible that the system is working. Very possible. Mr. Robinson: Okay. Mr. Wiseman: Thank you. Mr. Robinson: Okay, thank you. Mr. Heintz: Thank you. Mr. Robinson: Any further discussion? I'll call for the vote. All those in favor of filing this correspondence. Okay. Anybody opposed? Okay we'll move on then. Motion and Vote: Mr. Wiseman moved to file correspondence. Ms. Sumner-Mack seconded the motion. All members voted aye. 5. NEW BUSINESS (10:12 a.m.) Mr. Robinson: The next item, new business. We have no new business. 6. UNFINISHED BUSINESS (10:12 a.m.) a. Petition 2019-04: Continued review of a petition from a former County officer or employee to determine compliance with Section 2-91.2(b) (Post-employment) of the Hawai`i County Code because his current employer wants to include him in projects involving the Hawaii County Wastewater Division, his former employer. (11:14 a.m.) Mr. Robinson: I think at the last meeting that we had had an action on that after we came out of executive session. And we have an...if I can find it. Informal advisory petition or opinion that was issued and it found that there was a potential for conflict of interest. Ms. Hall: Sorry Chair. Just need to correct. We don't have an informal advisory opinion at this time for Mr. Bailey because when you guys took it under advisement, you advised him that it would be pushed to the next meeting or so... Mr. Wiseman: We have one on the other issue. Ms. Hall: Yeah the other one that you guys actually motioned for no conflict on that one yeah. So at this time we just need to ask further questions if the commission...I mean if the Board has any more questions. 7 Mr. Robinson: Sorry I was incorrect. Ms. Hall: And clarifications, yeah. Mr. Robinson: So does anyone have any further questions on that regard for the petitioner who is here today? Mr. Heintz: Is Mr. Bailey here? Ms. Hall: Yeah. Mr. Robinson: He's right here. You want to come up Mr. Bailey. Mr. Heintz: Actually I have no further questions, I simply wanted to say that I have read the minutes and I agree with the motion that was made on page 9 of the minutes. Ms. Hall: I just needed a little bit more further clarification. Chair, if I may? Mr. Robinson: Please go ahead. Ms. Hall: Mr. Bailey, which projects did you actually work on? Not just involved with procurement, but which projects were you actually involved with during your time here at the County? Mr. Bailey: So. All of them listed under 3.d., i. through iv. Ms. Hall: So you worked on all of those in some capacity? Mr. Bailey: In some way or another. Ms.. Hall: Okay. Ms. Hall: That's all I had Chair, sorry. Mr. Robinson: Okay. Does anyone else have any further questions for Mr. Bailey? Ms. Sumner-Mack: It appears that you...in your new capacity you will have no involvement in decision making, contracting and so on. You will just be handling projects, ongoing projects in your...with your expertise technically and so on. Mr. Bailey: Right, working at the level of a project manager. So just coordinating and managing the project itself. That's correct. 8 Ms. Sumner-Mack: Thank you. Mr. Wiseman: But these are projects that you also wcre...worked in for the government? Mr. Bailey: Correct. I think...to me there's a distinction between the projects that I worked on...because those are... If you go to the code...it talks about the word...use the word...contract. And so I think, items i. through iv. were under contract when I was at the County. So now...post-employment...there are respective contracts...future possible contracts that I also would like to be involved with. So is there a distinction between these future contracts that we could potentially get versus the items i. through iv. were already under contract. Or is it all the same or is it? Mr. Robinson: Are you saying, is it specific to the prior contracts you were involved in? Mr. Bailey: Right. Is it... Mr. Robinson: County in general. Mr. Bailey: For example...item i...Kealakehe Wastewater Treatment Plant Recycled Water Improvement Project. So that's a design contract that I believe is still under design so it hasn't gotten far enough to go to construction yet. So when that project goes to construction, we would be interested in managing the construction of that project. So that'd be a new management contract to manage the construction. It hasn't been awarded yet. So would that...would pursuing that contract kind of be considered the same as if I was working on item iii, Papaikou, Kulaimano Wastewater Treatment Plant Improvements which is a...current design project that was under contract when I was working at the County? Mr. Robinson: I don't know if that's a level of specificity that we have within our prevue. I mean to say okay well this... Mr. Bailey: Like I said, I'm going back to the word contract. There are certain things in our contract that I might have had or not had influence on and... Whereas the construction management would just be managing a design project for the County. So it would be a separate contract. I guess that's the... I don't know if there's a distinction there that could be drawn or if it doesn't...like you were saying it's all just... 9 Mr. Robinson: Yeah I don't know if we can sit here and write an informal advisory opinion if the Corp. Counsel can write an opinion. It says well you can work on these but you can't work on these,but you can work on this one. Mr. Bailey: Oh so it's all or nothing. Yeah, okay. I just wanted to make sure that... Mr. Robinson: That's really a question for Corp. Counsel. Can we write an informal advisory opinion that's that specific? You can work on this, but not on that, I mean... Ms. Hall: It would come down to your findings. So if you have findings that he was directly... So the language in here is right...had been directly concerned...had under active consideration or had obtained information which by law is not available to the general public. So if you guys find on any of those...a violation...then you could technically go into more specifics on which projects you felt... If you feel like he's...let's just say...what's in his petition right... If you feel like he's directly concerned with i. and ii. but not with iii...you could be then be specific in that sense of... I don't think...it doesn't appear in your...in the Code of Ethics to restrict you to...just all or nothing. If you guys really wanted to get detailed...I don't see anything holding you back from that. Mr. Robinson: Okay. Mr. Heintz: Mr. Bailey, are there others... I noticed that somewhere in here. I wasn't at the other meeting but...that Kennedy Jenks is asking you to be working on projects having do with the Department of Water Supply, right? Mr. Bailey: Wastewater Division, yeah. Mr. Heintz: Right. Wastewater Division. And there are other people at Kennedy Jenks who could do that instead of you? Mr. Bailey: They are right now, correct. Mr. Heintz: Okay. Mr. Bailey: I'm not involved with projects...in any of these yet. Right at this time. Mr. Heintz: And you will reach the twelve month separation on May... 10 Mr. Bailey: May. Yeah. Mr. Heintz: In about five or six months. Mr. Bailey: Yeah. Mr. Heintz: Thank you. Mr. Robinson: Alright. Is there any further discussion or questions for Mr. Bailey? Is there a motion? Mr. Wiseman: I move we end the hearing in this matter. Mr. Robinson: Okay. And is there a motion regarding disposition of this? Mr. Wiseman: What was the motion made the last hearing? Mr. Robinson: Yeah, I forget what it was. Do you have that? The motion from the last hearing? Ms. Hall: Yeah, we'd have to remake that motion today. Mr. Robinson: Yeah. Do you have the motion from the last hearing? Mr. Wiseman: It's on page 9. Mr. Robinson: Page 9. "That we find a violation of..did we find that ethics violation in the petition of Curtis Bailey. Is there a second?" That's what I read there. Was that correct? Mr. Wiseman: We making a motion again? Mr. Robinson: Right. Oh here it is...Mr. Wiseman. "That we find conflict to some extent and violation of..." That we'd ask legal counsel to prepare a draft and see if there's any violations to the code. And then we had a second on that. So was that the motion? Ms. Hall: We would need a new motion... Mr. Robinson: We would need a new motion. Ms. Hall: Stating the section. Mr. Robinson: Could you make that motion Mr. Wiseman, since you made it the last time? 11 Mr. Wiseman: And the specific section? Mr. Robinson: Right. Mr. Wiseman: Could I ask Counsel for the specific section? Ms. Hall: Yeah. It's in 2-91.2(b), is the section number. Mr. Wiseman: I make the same motion that was made last...October 9. That we find the petitioner in violation of the Code 2-91.2(b). Specifically there was a time element after leaving the Government, I believe. Mr. Robinson: Correct. Ms. Hall: Yeah. Twelve months. Mr. Robinson: Twelve months. Is there a second? Mr. Heintz: Second. Mr. Robinson: It's been moved by Mr. Wiseman. Seconded by Larry. Any further discussion? And then of the opinion that Corp. Counsel will write and address those questions regarding different items. All those in favor say aye. Contrary minded. Okay thank you. Thank you very much. Sorry it took so long. By the time we get it drafted, you'd be already be out of the dog house. It would be twelve months. Mr. Bailey: Thank you. Mr. Robinson: Okay. Motion and Vote: Mr. Wiseman moved that the Board finds Petitioner in violation of Code 291.2(b). Mr. Heintz seconded the motion. All members voted aye. b. Petition 2019-06: Review draft informal advisory opinion regarding a petition from a County officer or employee to determine whether she would have a conflict of interest to serve on the Hawai'i County Police Commission under Section 2-84 of the Hawai'i County Code. (11:26 a.m.) Mr. Robinson: Okay item b. The draft informal advisory opinion is here. Does anyone have any questions regarding that? Mr. Wiseman: I like the draft opinion. I would suggest an offer a comment that the County of Hawaii is fortunate to have a person of such decades of experience. Something to that effect. 12 Mr. Robinson: To say that in the petition? I mean in the opinion. Informal advisory opinion. That we're fortunate to have her. Mr. Wiseman: Yeah. The County is fortunate to have someone with such a wide history of experience in that field. Mr. Robinson: Could we add that in? Let's see would be...findings of fact... Ms. Hall: Where would you like to add it? Mr. Wiseman: It could be a footnote perhaps. Ms. Hall: Okay. Mr. Robinson: Because we say...if we state this in here...31 years...Bergen County...New Jersey...retired as the Chief Maybe within that at some point we could say that...where we put petitioner is a resident of the County of Hawai`i. Petitioner worked. At some point we could say that the... Mr. Wiseman: Perhaps a footnote would be appropriate. Mr. Robinson: Yeah. Ms. Hall: Okay. So footnote on number 3, maybe? Mr. Robinson: Yeah. Ms. Hall: Yeah, okay. Mr. Wiseman: Other than that, I'm in favor of the draft. Mr. Robinson: Okay. Do we need to vote on this again or...? Malia, do we need to vote on this again? Ms. Hall: Are there any objections to adding that? Mr. Robinson: Any objections? Alright. So we'll get this one moving. Mr. Wiseman: Do we need a motion to final it or? Mr. Robinson: I don't think so. Cause that way you voted on it. Mr. Wiseman: Right. 13 Mr. Robinson: Just the petition we accepted it. We had discussion. We made one addition and I don't think we need to redo the motion. Do we Malia? Ms. Hall: No. Mr. Robinson: Okay. We're good. Mr. Robinson: Next item on the agenda is executive session. Do we want to deal with item no. 8 before going into executive session? Mr. Wiseman: What was 8? Mr. Robinson: I think that we had asked to have that placed on the agenda back in September and we have and now everyone is available here. Mr. Wiseman: Does that petition spell it out. Mr. Robinson: It's not a petition. It was just a request for discussion by the Ethics Board. And so we can move that up and actually take that now. And then go onto executive session afterwards. If the Board is okay with that. c. Petition 2019-07: Continued review of a petition from a County officer or employee to determine whether there is a conflict of interest under Section 2-84 of the Hawai'i County Code for his office to prosecute cases involving a protest site on Hawai'i Island. (10:12 a.m.) Mr. Robinson: And we do have some unfinished business. I would like to move item... Mr Heintz: c...6.c. Mr. Robinson: Yeah. Up and take that item first. Does anyone have any concerns about that? Okay. So item c. And I think that everyone remembers our discussion from the prior meeting. Mr. Heintz: Mr. Chairman? May I....I was not here at that meeting. I would have really liked to have been participant. I was in Tallinn, Estonia, in the basement of the KGB building and visiting the prison there. They have a very different judicial system than ours. But in any case, I would like to...ask a few questions and participate. I have read the minutes. I've read the court case...I mean the article from the Missouri that you'd provided us and also the opinion of the counsel. 14 Mr. Roth: Corporation Counsel. Mr. Heintz: So I just want to share that with you. Mr. Roth: Thank you for doing that. Mr. Heintz: So if I may proceed. Mr. Roth: Oh please, go ahead. Mr. Heintz: I supplied you with a copy of the minutes and I'm gonna refer to the minutes and there certain points that I want to raise. But before I do that...since we're talking about the question of our... You're raising the question about conflict of interest, appearance of impropriety and with basically a third issue...we might say is a...what is the prudent thing to do in this circumstance for your office? And all of those need to I think be based on a few facts that I want to clarify. I'm not clear in my mind. The first one...it's material fact about your wife's employment. Mr. Roth: Mmhmm. Mr. Heintz: She works for RCUH and/or Subaru? Mr. Roth: So she works at Subaru. Mr. Heintz: Yeah. Mr. Roth: But Subaru is interesting the way they hire their employees. And you have Subaru which is under government of Japan. But they hire employees through RCUH. So all of her work is with Subaru. But T guess the easiest way for me to think about this is kind of like an Altres Staffing...kind of thing that they're in charge of hiring those employees but her supervisor works for Subaru and does all that work with her. Mr. Heintz: So is her job dependent upon like grants and... Mr. Roth: I don't think so. Mr. Heintz: Is it a temporary position or a permanent position? Mr. Roth: I believe it's a permanent position. I think she's been there for over ten years. 15 Mr. Heintz: Over ten years so usually that's a permanent position and... Would you say that her...I mean...since her position precedes the whole issue of the TMT...that if TMT were not built...it wouldn't have any effect on her continuing work for Subaru and the foundation. Mr. Roth: That's correct. It would not have any effect on them. Mr. Heintz: Thank you. Second with regard to your son's employment. He works for JPL Nasa on the Mars Rover. Mr. Roth: Correct. Mr. Heintz: And he worked there since 2015, is that right? Mr. Roth: No. He just got that job. He graduated in May and I believe he started in June. Mr. Heintz: Oh. So he's not a senior executive at JPL Nasa? Mr. Roth: No. He just got published. Mr. Heintz: Okay. But is he an astronomer? Mr. Roth: No. He's a computer scientist. He works on the camera systems for...right now...the Curiosity Rover. So they program the pictures to be taken on Mars and they also bring those pictures down because it's...! guess there's like 20 minutes between what's going on. So they play on the day before. They take the pictures down and link them to the team to decide where the Rovers gonna go and everything like that. Mr. Heintz: Okay. So he is not really involved in astronomy and/or telescope work in any direct way? Mr. Roth: No. Mr. Heintz: Thank you. The next question I have is...in your remarks, you indicate that you are a board member on NexTech? Mr. Roth: Correct. Mr. Heintz: And can you tell us a little bit about what NexTech is. I understand it does stuff with kids with STEM. 16 Mr. Roth: Right. So NexTech provides STEM activities for kids in high school and middle school and actually grade school. So they have day camps where the kids are not charged anything to go out there. They learn about technology. We just had a three day camp where they do robotic stuff. We give them problems. We're teaching them problem solving methods. And I'll just share this cause it's a really kind of cool thing. They went up to the National Park. National Park gave them a problem. And the problem was little fire ants. And one of the problems in that was that some of the trees have fire ants but you can't get up to the trees and you can't bring a ladder and you can't... And so one of the teams of kids came up with a solution to create these little balls with a gel inside with the poison. Put them in at paintball gun and shot um up there. So I mean, that's the kind of cool stuff and the other thing we're doing now is... It's right now so it's a good time, people want to enter into our fish tank. It's a competition kind of named after the "Shark Tank". It's a competition for kids solving real world problems. And the kids will get funds, prizes and funds that can go to a charity of their choice or their schools or things like that. Mr. Heintz: Okay. You said that you were on the Board of NexTech, right? Mr. Roth: Yes. Mr. Heintz: Does NexTech take positions on public issues? Mr. Roth: No. Mr. Heintz: Now has the board ever taken a position, to your knowledge, on the TMT? Mr. Roth: No. Mr. Heintz: Have you ever voted on an issue...I mean...is it that kind of board? That it takes positions... Mr. Roth: No. You know the idea is we want to create opportunities for kids to succeed in life. We want to create opportunities for kids to make mentors here in the STEM industries. We want to make opportunities for those industries, the engineers and other industries...including...it could be, you know, the telescopes. To bring those kids back to Hawai`i rather than having our kids living on the mainland kinda like what's happening with my kids right now. 17 Mr. Heintz: Thank you. The point of my questions on all these matters is...the question of conflict of interest or appearance of impropriety or what is the prudent thing to do? These questions might be involved with what would a reasonable person think? That standard depends on people being somehow objective and knowing the objective facts. And it seems to me that what you're saying for the record, is that there's no connection, no implication of involvement with TMT and your wife, your son or your own involvement in NexTech. Mr. Roth: Yes. Mr. Heintz: So I wanted just to add, declare that that's what my point was. Mr. Roth: Right. And I want to be clear cause you know I...last time I was reading in the article that came out. One of the things that does happen with NexTech is they went to the think fund, which I understand does have some money from TMT and so part of their support for the prizes for the camps and stuff like that. That being said, no one... Well I am not paid a penny. Mr. Heintz: It's my understanding that the TMT has been contributing nearly a million dollars a year...if the public reports are correct for STEM educations and student's education on the Big Island. The next thing I want to do is I...I really would have liked to have been present at your last session. I thought the discussion was really good, some very good and interesting things. And I just want to mention a couple of things. The Missouri Law School article that you referred to...applying the appearance of impropriety to the standard, standard. To prosecutors...I think it was an interesting article. And it starts out with a premise that, in order, and I'm quoting: "To be successful, a justice system must appear to be fair and just to the public." And that depends upon the...this notion of appearance...depends upon other reasonable, standard of a reasonable, what would a reasonable person think. So I thought that was quite interesting and the article of course is advocating for that standard to be applied to prosecutors not just judges. But I take it, that hasn't happened. But I think it's very germane to our discussion. I want to refer you to the minutes. Mr. Roth: Okay. 18 Mr. Heintz: The minutes...the relevant minutes start at page 15. That's of the one I provided. Mr. Roth: Right. Mr. Heintz: This is the October 9th minutes that we just approved. Mr. Roth: Is there a page you would like me to look at particularly? Mr. Heintz: Well I just...we've just looked at...1 was just clarifying on the bottom of page 17. Your connection with... Mr. Roth: 17? Mr. Heintz: 17. With NexTech so I can move beyond that. But I also want to just note...the last couple of sentences on page 18 of your remarks...before Judge Wiseman talks. You say, and I'm quoting, the last four lines really: "What you come up with", you're talking to this board. "What you come up with here will probably... Mr. Roth: On page 18? Is that right. Mr. Heintz: Yes, page 18. Mr. Roth: Okay. Mr. Heintz: The long paragraph. The last three lines of the first long paragraph. Mr. Roth: Okay. Mr. Heintz: "What you come up with", what you the ethics commission, "come up with here will probably be discussed in law schools around the country when you deal with ethics". I guess I'm pointing this out to my fellow board members as much as you. And I think what that does is point out the significance of a very careful determination on this case. The next thing that I want to point out is on page 19. Towards the bottom of page 19. The last...not the last but the second last time that you're speaking. There's a long paragraph, "You might... Oath of Office..." that particular one. Towards the end of that paragraph...it seems that we're talking I guess about a...building a Chinese firewall... 19 Mr. Wiseman: Chinese wall. Mr. Heintz: A Chinese wall between you and the rest of your office. Am I right about that? Mr. Roth: That's correct. Mr. Heintz: So that there would be a way for your office to deal with these cases but not with you supervising the office. Is that right? Mr. Roth: That's correct. And just to let you know, the first set of cases...those are the ones that most people are dealing with...and I think there may be one or two other case...I'm not sure. Those all went to the Attorney Generals. Just an abundance of caution. We've decided that if there were any other cases that happen during that time...that we would put that fire wall in place and you know...the Chinese wall...and have my first deputy handle that them and take me out of the equation. And that was done for a couple of reasons...for several reasons. Mr. Heintz: So you're at least considering that and temporarily that's a way to resolve this issue from your perspective? Mr. Roth: Right. The legal grounds that we'd have to conflict ourselves. I feel completely, 100% safe in handling those cases. But that article, you talked about the appearance, there's also another part and that's procedural justice. Mr. Heintz: Yes. Mr. Roth: And so we don't only want to think that you know we're doing things right. We want to do things...I guess the Hawaiian word to say is pono...the right way. And you know give people that voice...that hey...this is something that's out there. And in an abundance of caution...we're gonna be as transparent as possible. Because I think that's needed in government. Mr. Heintz: If you were not supervising these cases... Mr. Roth: Mmhmm. Mr. Heintz: I mean so there are two alternatives. One is that you just carry on and supervise the cases or we build this Chinese wall. And they're supervised by... Mr. Roth: My first deputy. 20 Mr. Heintz: Your first deputy. Mr. Roth: And we've done that before for other cases. Mr. Heintz: Okay. Mr. Roth: The reason I didn't do it in the very beginning...because this was such a public matter that...I wanted to be...as fair as possible. I guess is a...and that's why we did it. Mr. Heintz: I mean if we assumed and hypothetically...I'll just go on record that I believe that there is no conflict of interest. And to determine that there is an appearance of a conflict of interest...involves us invoking this reasonable man standard or something like that or reasonable person standard. This traditionally the way it's done. Then the question becomes...that's why I ask the questions I did about the...about your wife's employment...about your son's employment and NexTech. That there a reasonable person would determine that...that there is no conflict and there's no appearance of conflict. But the reasonable man or the reasonable person standard is somewhat notorious because when one gets involved in the discussion of it...who is the reasonable person? Is it the person in the back of the Clapham omnibus? Or is it the person on the street of Downtown Hilo? Or is it the person from Cincinnati? I mean, I'm trying to think...Ohio is pretty innocuous. But the idea here is... But the problem with this is ethics is not just a matter of public opinion. It's not a public opinion contest. The question is what principle...what reason does a person have. The idea here is with a reasonable man or person standard is to come up with something subjective not objective. And you're always going to have, in the State of Hawaii a 20% of the population for sure...maybe more...that's going to find an appearance of a conflict. Mr. Roth: And just, you know, I guess maybe I should caution in... I don't know if..anybody else would want to comment on this. I think the parameters or the decisions that you have are...kind of limited to really the rules that you have in front of you as far as you know the conflict in everything too. Mr. Robinson: You know and if I could, Larry. Mr. Heintz: Yeah. 21 Mr. Robinson: I thought we were just gonna ask him questions and we kind of got into the deliberations. So if we could have any more questions for Mr. Roth? Mr. Heintz: I just wanted to share with you some of my thoughts about this whole business about how undetermined whether there's an appearance of... That was part of that earlier discussion. Mr. Robinson: Right, right. Mr. Heintz: So I think that'll do. Mr. Roth: Thank you very much. Mr. Robinson: Judge? Mr. Wiseman: I don't have anything further. Mr. Robinson: Nan? Ms. Sumner-Mack: I'm just wondering if there's...if you see any drawbacks from the system that you seem to have worked out where you absent yourself from the process of these cases. This particular set of cases. If your deputy is handling them now and you're...is there any problem with doing it that way that you perceive? Mr. Roth: That is kind of the standard in Judge Wiseman brought that up the last time. So we're clear...at the current time...most of the cases are being handled by the Attorney Generals. Because we conflicted out of those. The big drawback of course is it's expensive to fly those people over and... I don't see any drawbacks of my first deputy supervises these people and I'm not in the picture. I would just hope that the public realizes too that you know the fact that I'm willing to come here and put this out there. Then I am good to my word that I don't have any...! wouldn't have any influence on the deputy. Ohh you gotta do this...you gotta do that. Ms. Sumner-Mack Thank you for clarifying that. Mr. Roth: Thank you. Mr. Robinson: I just...if everybody's... I just have one question. This is State land...yet the people seem to be occupying it and the need to remove them is really a function of the County or the State? I'm not clear. I mean, if I were to go down and pitch a tent at the 22 entrance in the Keahole Airport and block the roadway. I would be arrested by the local police department. Correct? And prosecuted by the local prosecuting. Mr. Roth: Possibly. You could be arrested by DLNR. And DLNR— DOCARE officers have been in charge of most of these arrests. However, even though they make the arrest, the Charter puts the hones on the County prosecutor to prosecute the laws of the County and the State. So actually most of the laws that we prosecute are State laws...but most of the times it's by a County officer making arrest. We do a lot of cases like if someone's at the park over here and they broke the law. Generally it's gonna be the DOCARE officers that will be making the arrest at the State park. And it will be our office that will be prosecuting. Mr. Robinson: Okay. I understand. Okay, great. Ms. Sumner-Mack: So if you were to... Is there any other system that you could use? To prosecute if without your intervention with this Chinese wall. Could your deputy prosecutor or other officials handle these cases? Mr. Roth: Absolutely. My deputy prosecutors would be prosecuting this... It was never the intent that I would go into court and handle any of these cases. I mean, everybody should realize that. Generally, at the misdemeanor and petty misdemeanor level, I give my deputies in court a lot of discretion to make decisions. You know, we have about 17,000 cases come through our office and in a year. So there's no way I could look after and make decisions on all of those cases. And so generally what I'd do is...on the felony cases that are serious or... Well the serious felony cases...like sex assaults, murders and things like that...they'll come and they'll ask me about plea agreements. There's some other cases that they'll ask...but on the felony level...I have a rule that you first...you go out and you talk to your victims and the police officers. And you know if they are going along with that...then you don't need to come to me. But if there's some other issues...there's just times when they'll have to come to me. But most of these cases...I wouldn't get involved with anyhow. They're just coming through our office. Ms. Sumner-Mack: So the next question is...why are they now being referred to the Attorney General's office? How did that come about? Mr. Roth: That came about because of the article that started this. In there was the assumption that was the appearance of impropriety and there was like conflict. Actually they claim that there was conflict 23 and like I said there was no conflict. We tried to get the opinions from the Attorney General. We tried to get opinions from ODC. Both the Attorney General and ODC...well they didn't say there was any conflicts or appearance. They both recommended I come to the local ethics and put it to you guys as well. Ms. Sumner-Mack: Okay, thank you. Mr. Heintz: I just have one more point. On pages 28 and 29 in your interaction last...at that meeting. Bottom of 28. Top of 29. You're interacting with Mr. Robinson about appeal. That there's going to be appeal or a lawsuit if you deal with these cases. And it seems like...by it separating using the Chinese wall by taking yourself out of these cases...might avoid the...a lawsuit or... Mr. Roth: Every time we win, there's gonna be an appeal. Generally there's gonna be an appeal. It's another issue that they could argue. It's impossible. But I think with the Amano case that I furnished you...actually Joe Kamelamela furnished. I don't think that they have a very good shot of winning. Mr. Heintz: Right. Thank you and I mean it seems to me that this becomes just a question of prudence or good judgement. You might avoid an appeal by simply separating yourself and letting your deputy do it. Mr. Roth: Any time when we expect appeals. Mr. Heintz: Thank you Mr. Chairman. Mr. Robinson: Okay, is there any further questions for Mr. Roth? Thank you for your time Mr. Roth. Mr. Roth: Thank you. Mr. Robinson: We will deliberate on this and anyone has anyone has any further discussion or items they'd like to bring up. Was there a motion regarding this? Mr. Wiseman: I move we resume our discussion in executive session. Mr. Robinson: Okay. Ms. Sumner-Mack: I'll second that. Mr. Robinson: Okay, it's been moved and seconded that we resume our discussion regarding this matter in executive session. Is any 24 further discussion on that? If not, all those in favor say aye. Contrary minded. Okay at this point we'll move to executive session. We'd like to ask everyone to leave and just wait and we'll call you back in when we're through. Motion and Vote: Mr. Wiseman moved to go into executive session to resume discussion. Ms. Sumner-Mack seconded the motion. All members voted aye. 10:12 a.m. The Board moved into executive session. * 11:06 a.m. The Board returned into regular session. Mr. Robinson: Okay we'll go back into regular session. And we're still on item c., which we moved up under unfinished business and that was regarding a Petition 2019-07. Is there any further discussion? Or a motion? Is there a motion regarding this matter? Mr. Wiseman: I'll make a motion. I move that the Board find no conflict of interest, pursuant to the Code of Ethics. And I further move that the...based on the testimony received...and other factors that in the interest of prudence...and maintaining the public's confidence in the system of our Government, that Mr. Roth established a wall or barrier within his office. And he will not handle any cases, administratively or otherwise with respect to any prosecutions involving the persons that may be at issue here. Mr. Robinson: Okay, there's a motion before the Board. Is there a second? Is there a second to that motion? Mr. Heintz: I will second that motion,just so that we can act on it. Mr. Robinson: Okay. So it's been moved and it's been seconded that we find that there is no conflict of interest. That Mr. Roth will establish within his office, a barrier, to allow the prosecution of these cases to go forward by the County Prosecuting Attorney. However without Mr. Roth's direct involvement in those cases. Is that a correct summation? Mr. Wiseman: Direct or indirect. Any involvement. Mr. Robinson: Any involvement whatsoever. Ms. Sumner-Mack: I would be in favor or of this with change of wording from wall to barrier. Mr. Robinson: Okay so instead of a wall, we would say barrier? 25 Mr. Wiseman: Yeah. Mr. Robinson: Okay. Mr. Wiseman: That's fine with me. Mr. Robinson: Okay. So moved and seconded. Movement by Judge Wiseman, seconded by Larry. Discussion? Regarding this matter? Before the vote? Mr. Heintz: I believe our motion should also involve or talk about appearance of conflict of interest. Which I believe the record shows that there isn't an appearance either. But if Board doesn't...inclined to do that...I will simply file a dissenting opinion which will address that part of the question. And Mr. Roth asked that we address that as well. Ms. Sumner-Mack: I think we'd already mentioned that wording could be further discussed and worked out. So perhaps that could be addressed at that point but otherwise I think the motion should be voted on. Mr. Wiseman: We're gonna see a draft. Mr. Robinson: Correct. Mr. Wiseman: Have that first and then we can... Mr. Robinson: Correct. We'll have a draft of the informal advisory opinion that will be circulated. We'll have the opportunity at that point to insert anything into it that we would like to insure that is addressed in that informal advisory opinion. And if we do not address what someone feels or they want to file a dissenting opinion, they can do that as well. Mr. Wiseman: There's also a concurring opinion. Concur but you can register your dissent. Mr. Robinson: Correct. Mr. Heintz: Thank you Mr. Chairman. Mr. Robinson: So is there any further discussion then? So the motion is that we find no conflict of interest based on testimony that we heard prior. That with the respect to Mr. Roth's construction of a barrier within his office. That there would be so he would have no direct or 26 indirect involvement with prosecution of these cases. But the Corp. Counsel...oh the County Council...I mean the Prosecuting Attorney's Office...excuse me...would then be able to go ahead and prosecute those cases. That's correct. Okay. Is there any further discussion? If not, all those in favor say aye. Dissenting? None. Okay. Motion passed. Alright that's item c. which was moved up. Motion and Vote: Mr. Wiseman moved that the Board finds there is no conflict of interest, under Section 2-84 of the Hawaii County Code. Mr. Heintz seconded the motion. All members voted aye. 7. VOTING ON EXECUTIVE SESSION MATTERS (10:55 a.m.) a. Review of the executive session minutes of October 9,2019. (10:55 a.m.) Mr. Wiseman: I just want to...so it doesn't get lost. I want to make a motion to amend the minutes of the executive session as discussed. Mr. Robinson: Is there a second? Ms. Sumner-Mack: Second. Mr. Robinson: Okay, it's been moved and seconded that we approve with the subject amendment, the executive session minutes of October 9, 2019. Is there any further discussion? If not, all those in favor say aye. Contrary minded. Okay. Motion and Vote: Mr. Wiseman moved to approve executive session minutes. Ms. Sumner-Mack seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees,where personal matters will be reviewed. (12:50 p.m.) Mr. Robinson: The next item on the agenda was... Was there another one? Ms. Sumner-Mack: Schedule? Mr. Robinson: Oh, schedules. Ms. Hall: You want to accept the...motion to accept the financial disclosures. Mr. Robinson: Yeah. Motion to accept financial disclosures as reviewed. 27 Mr. Heintz: So moved. Mr. Robinson: Is there a second? Ms. Sumner-Mack: Second. Mr. Robinson: All those in favor say aye. Okay we're done on that. And what was the other one Malia? Ms. Hall: And then the schedule. Motion and Vote: Mr. Heintz moved to approve and file financial disclosure forms. Ms. Sumner-Mack seconded the motion. All members voted aye. 8. DISCUSSION REGARDING THE POTENTIAL OF THE HAWAPI COUNTY BOARD OF ETHICS TO FILE AN ETHICS VIOLATION APPEAL WITH THE STATE ETHICS BOARD IN REGARDS TO LACK OF ACTION IN ENFORCING THE RULE OF LAW FOR THE CONTINUING BLOCKING THE INGRESS AND EGRESS OF THE MAUNA KEA ACCESS ROAD. (11:27 a.m.) Mr. Heintz: I guess since that's in connection with my general concern that I expressed at the conference in Honolulu. Let me just make a remark or two. This is a continuing concern and it's now showing up on a fairly regular basis. I noticed at least three letters to the editor and let me just read one. Paragraph from a letter to the editor. In...I believe yesterday's paper with regard to the blockage of the road up on Mauna Kea. The pertinent part of the letter is: "Why are they being allowed to remain? Why haven't they been removed as the protestors to the wind farm?" Apparently referring to protestors being removed in wind farm in Oahu. Mr. Robinson: Right. Mr. Heintz: "They are clearly and even more contempt of the law and I am sure have caused far more serious damage to the flora and fauna. Has Hawaii become so lawless that it's citizens must fend for themselves because the rule of law does not apply to some groups. What are we to do, when the Governor, Mayor and agencies, etc. no longer enforce the law?" 28 And the letter goes on. The issue here is...the question that the letter writers are raising and that of this general concern is... Does the ethics committee at some point have a role in asking the question of...is the Mayor upholding his office to enforce the laws of the State and County? When it's prima facie obvious that the six months have passed and the roads are still blocked. That's the issue. Thank you. Mr. Robinson: Correct. Mr. Wiseman: I'm not so sure it's the Mayor's responsibility as opposed to the Governor. Mr. Robinson: That's...yeah. Mr. Wiseman: I think it's really a State issue. Mr. Heintz: And if it is a State issue then the question might be raised to the State Ethics Board. I mean who is it that raises the question about failures of public officials to uphold their Oath of Office. Mr. Robinson: That's why I asked the question of Mr. Roth when he was here. He referred specifically to the County Charter as requiring the Prosecuting Attorney to enforce the laws of the State of Hawai`i even if it's on State land. Mr. Wiseman: Yeah. Mr. Robinson: So it's the obligation on the County Charter. That's... Pardon me. Ms. Hall: To prosecute. Mr. Robinson: To prosecute? Ms. Hall: Yeah. Not enforce. But prosecute. Mr. Robinson: Yeah. So is that an obligation of the Mayor? Cause that's one of the things I had Maria get was the Oath of Office. And this Oath of Office is taken by all politicians and us as Board Members and everyone. It says..."do solemnly swear affirm that I will support and defend the Constitution of the United States of America. Constitution of the State of Hawaii and I'll faithfully discharge my duties as a member of'...in this case...Board of Ethics...but it would be...you know Mayor as County Council person...whatever. It's an Oath of Office that everyone takes. So is there a violation of that Oath of Office if you don't enforce the 29 roles of this, you know, Constitution. If you just become... You really got me thinking about that, Larry, last time when you brought that up. Mr. Heintz: Well the issue has been raised to me by a couple of people...citizens who've said...well who is it that raises this question...and haven't I taken an Oath of Office? That to raise the question of failure of public officials in fulfilling their own oaths. Ms. Sumner-Mack: Do we even have standing as members of the Board of Ethics? Mr. Wiseman: That was my... Ms. Sumner-Mack: To raise an issue. I mean do we only have the right to...or the obligation to address things that are brought to us. Or do we have authority or standing to raise issues independently? Mr. Wiseman: That was a concern I was going to raise...similar to that. I'd be very curious to know if there's any precedent for County Board of Ethics going to the State Board of Ethics. Ms. Hall: Yeah. It's beyond the jurisdiction in the sense that you guys have prevue over this Code of Ethics in the County setting. In the State setting basically if you wanted to do it as a private citizen, you're more than welcome to, you know, file an ethical petition with the State Board of Ethics. But as an actual Board, there's no... It would be the first time I believe... Mr. Wiseman: And it might just be thrown back if they can't respond to our petition. Ms. Sumner-Mack: Well could the writer of that letter ask ns or ask the State Board to take a stand on this. There haven't been many letters published in the paper...finding fault or...with the level of law enforcement at Mauna Kea. Mr. Wiseman: If a letter came to us and it would be my position. And I would move that perhaps to forward it to the State Ethics. Mr. Heintz: May I just... Section 2-86 (b). The alleged conduct of someone other than the inquirer. Any person or the board itself may petition the board...okay itself...for an informal advisory opinion on the alleged violation of the code of ethics by an officer or an employee. So we could do that with regard to the Mayor, the County Prosecutor. And what we cite is Section 14-1 (b). An elected and appointed officers and employees shall demonstrate the 30 highest standard or ethical conduct so that the public may have trust and confidence in the integrity of the government. And they're not exercising the highest standard of conduct if they're failing to uphold the laws...their oath...which says they're supposed to uphold the law. Ms. Sumner-Mack: I'm...to oppose that as a motion now. I mean I think we should be... Mr. Robinson: Proactive. Ms. Sumner-Mack: Proactive. Exactly. Ms. Hall: I would also caution that you have to attach it to the code. Not just a Charter section. But you'd actually have to look for the code. In which section is it. Is it fair treatment? Is it a conflict of interest? You know, that kind of thing so. It might be something you guys might wanna look at more closely. You can't just say that it's a broad, ethical violation. It has to actually be within the code of ethics that you guys are looking at. Mr. Robinson: You just read from the? Mr. Heintz: Article 14...Section 14-1 (b). Ms. Hall: That's the Charter. Mr. Heintz: And the other is Section 2-86 (b) of the County Code of Ethics. Ms. Hall: Yeah. That's your authority to initiate but you'd still need to... Just as if somebody came here and filed a petition. It would still have to he a section attached to that petition that says; you know, there is a possible violation of this section of the Code of Ethics. Mr. Robinson: I remember you asked that question, Larry, at the... You asked that. Mr. Heintz: Yes. At the State Ethics conference. Mr. Robinson: And it was my impression that people were saying...well that's an interesting... Mr. Heintz: They said it was an interesting and good question and then everybody ducked. 31 Mr. Robinson: Yeah. Everybody ducked. But I mean, you know, sometimes you gotta break ground if you wanna get somewhere. And if you don't ask a question... I mean if the State Ethics Board wants to punt it back to us and say they have no authority or whatever. We could at least ask. That's my... Cause it just seems that there is no rule of law. It's just kind of ignored and looked the other way. And the person stopped at the traffic light and the lights changed but nobody's gone...so nobody says a word. Ms. Sumner-Mack: So we would become a petitioner? Mr. Robinson: We'd become a petitioner. Ms. Sumner-Mack: But should we petition straight to State Board? Mr. Robinson: State Ethics Board and that's Rey Graulty. Ms. Hall: Again. If you wanna petition the State Board, you'd have to do that as a private citizen. Not as a board. If you wanna initiate a petition to your own board, then you guys can do that as a board. But that's two separate procedures. Mr. Robinson: If we initiate that request to our own board and we put it on our agenda. They issue an informal advisory opinion that there is a... Or do we want to issue a formal advisory opinion? What do we want to do? That's a good question. And if we find that there is a violation...lack of enforcement of the rule of law. I mean. What is our option? To find... Mr. Heintz: Well I think that the counselor is telling us we have to find a section to stick this under. And of the Ethics Code...and the Ethics Code is very limited. T mean I guess you could start saying...well you can looking under fair treatment and say we're not all the citizens of the County are being treated fairly because some of them are able to violate the law and not be hauled away others are not. But I mean, the specific language it's a real stretch to get it to fit under any of these...that I could see. Mr. Robinson: So you're saying under fair treatment? Mr. Heintz: Yeah. I mean they're not enforcing the laws of the County and State of Hawaii equally. There's a group of people who are blocking roads and are not being stopped from blocking roads. There are people who are trying to build a telescope and they are not being allowed access to the building site. I mean those are the questions. 32 Ms. Sumner-Mack: But there are thousands of cases already of people being... Mr. Heintz: Arrested and dealt with. Ms. Sumner-Mack: Arrested and charged with...with these thousands of cases. So they could come back and say...well we are...we are...applying the laws. They're just not...they're just not looking at a bigger picture apparently. But it was in the paper this morning, you know. Listing how many thousands of these, and these and these. Mr. Wiseman: It's nothing to do with the road though. Ms. Sumner-Mack: It's not taking on the larger issue of access to State land...which should be the purview of the State. Shouldn't it? Mr. Wiseman: The arrest record I observed was mostly traffic violations and... Mr. Heintz: That's right. Mr. Wiseman: And a few minor violent crimes maybe, perhaps. But nothing related directly to the road. You know you have to think, the analogy. What if a sacred land was discovered on Inouye Highway and they blocked the highway? Anywhere. Take Honolulu. If they blocked Kealakekua...the main street. Mr. Robinson: Yeah. Mr. Wiseman: So the law should not be indiscriminately applied. Mr. Robinson: It is using County property facilities, equipment, time, or personnel for private husinecs, campaign purposes, or any other purpose other than for public purpose. So if you're using County resources to control people that are denying access...is that really the County's purpose? Mr. Wiseman: It's not a public purpose to me. Mr. Robinson: It's not a public purpose. I mean is that a fair treatment...a lack of fair treatment? Ms. Hall: Well technically that would be the question you guys would take up if you guys initiated a petition. But I'd also wanted to remind the Board that in order to do that, you would have to pass a resolution. Which basically will give the scope of the investigation 33 and all that kind of stuff so... Before... It's on Rule 5.2 just so you know. Mr. Robinson: Under? Ms. Hall: On your board rules. So when initiated... Mr. Robinson: Rules of practice and procedure. Ms. Hall: Yeah. Page 13 in the rules of the board. 5.2. It's basically speaking to when a board initiates its own investigations...that you shall make a formal resolution to conduct such a hearing or investigation. It shall define the nature and scope of the inquiry to be made so. Mr. Robinson: So under Power to Conduct. In accordance, the Board may subpoena witnesses, administer oaths, take testimony relating to matters before the Board, require the production of examination or books or records. Its exercising in the powers authorized in the Charter or HCC, respect to any investigation or hearing. Make a formal resolution to conduct such a hearing or investigation. It will be supported by a majority of the members. And it may authorize a three-member committee, the Board as a whole or a single member of the Board to conduct any or all or part of the investigation or hold an investigatory hearing. Ms. Sumner-Mack: Yes but there's one...thing...on point that the... In accordance with Article 15, the Board may subpoena witnesses, administer oaths and take testimony relating to matters before the Board. But there's nothing before the Board on this matter. Mr. Robinson: 1 finless we hid the resolution. Ms. Sumner-Mack: The resolution by us? Mr. Robinson: By us. We would have to pass the resolution. Ms. Hall: The Board would have to initiate the petition. Mr. Robinson: The resolution and initiate a petition. And then we can could call people to testify as to how this is not, you know. Ms. Sumner-Mack: Why? Why things aren't being done? Mr. Robinson: Yeah. Why things aren't being done? I mean, how is this not... Why is the rule of law not being enforced? 34 Mr. Heintz: So do you want a motion that we do that? Mr. Robinson: No. We need at resolution. So it's a motion for a resolution? Correct, Malia? Yeah. Motion for a resolution to conduct an investigatory... Mr. Heintz: Investigation. Yeah. Mr. Robinson: Investigation okay. Ms. Hall: And initiate a petition. Mr. Robinson: And initiate a petition. Correct. Okay. Mr. Heintz: So moved. Ms. Sumner-Mack: Second. Mr. Robinson: Okay. It's been moved and seconded that the Board initiate an investigatory or pass a resolution to define the nature and scope of the inquiry. We're going to define the nature and scope of the inquiry which will be resolution to conduct an investigatory hearing as to how...why the rule of law...is not being enforced on that Mauna Kea...on the access road. Mr. Wiseman: I'd like to make an amendment to the motion. The motion is to have a draft resolution for us to review and adopt if so desired. Mr. Heintz: Seconded. Mr. Robinson: Okay. Ms. Sumner-Mack: Okay. Ms. Hall: Yeah. I would also say that I would like the Board since its initiating to also either state now or state at the next meeting which code section you guys are using. Whether it's fair treatment or conflict...which one you are applying at this point. Mr. Robinson: Okay. Do we need to do that at the next meeting or we can do that in drafting this...have it ready for... And in my mind it would be the fair treatment. But we'll look and see if there's others and then we can communicate with you in drafting that resolution for the next meeting. 35 Ms. Sumner-Mack: That won't happen until the 29°i of January. Ms. Hall: Cause then we would still... Mr. Heintz: Can we do that by email...giving you input? Can we like interact with Mr. Robinson as Chairman? Mr. Robinson: Right. Ms. Hall: I would advise against that. Mr. Heintz: Can he pass around such a... Mr. Robinson: Well I think under the Sunshine Law, that's what Malia's concerned about... Ms. Hall: That would be a violation. Yeah. Mr. Robinson: I can have discussions with you, one on one. Correct? Ms. Hall: You're not supposed to use it serially either. So you're not supposed to talk to one person, then the next person, then the next person. That's also considered a... Mr. Heintz: Can we simply trust his judgment and let him provide you with the sections? Because what he's giving you is material for a draft which we're all gonna see. Mr. Robinson: Yeah. It may have further amendments at the next meeting too. Ms. Hall: I just want you guys to know too, this isn't gonna happen quickly in the sense that_yeah_.hasically the draft will have to come back to the entire Board. The Board will then rule on it. Whether you guys are still interested in initiating or not. And then from there you'd still have to give notice to the parties, the next meeting. So this is probably at least a two to three month process. Mr. Robinson: Well if we vote on this on the 29`h...we accept it...we want to move forward...we can give notice to the parties from that hearing correct? This will be the people that we're going to have, that we want to give notice to. We want to know why the rules are not being enforced. And so that would go out the 29`h and we would ask them to come to the next meeting which would be... We had the sheet that went out a little earlier. Ms. Hall: Sometime in February. 36 Mr. Robinson: Sometime in February. Ms. Hall: Yeah. Mr. Robinson: So we would be conducting that then. Ms. Sumner-Mack: We couldn't have a special session, could we? Mr. Robinson: We could. Could have a special session. Or we could just do it in February. Mr. Wiseman: I don't see any, in view of the situation, I don't see any real urgency. If we just schedule it as we were going to schedule it. I wouldn't be in favor of a special session for this. Mr. Robinson: Yeah. We just do it in February when we have our meeting schedule which is... Mr. Heintz: February 12. Mr. Robinson: Oh, I'm not going to be here. How lucky is that. Ms. Sumner-Mack: I'm not going to be here either. Mr. Robinson: Oh. Mr. Wiseman: We are meeting January 29th right? Mr. Robinson: Yeah January 29`h. Ms. Sumner-Mack: We don't meet again until the end ofJanuary. Mr. Wiseman: Yeah. Mr. Robinson: So we could do it March 17. Well at least we would move it forward. Ms. Sumner-Mack: Well maybe we could meet a different time in February, couldn't we? Mr. Robinson: We could meet the latter part. If we could discuss that a little bit later when we start doing our scheduling. Ms. Hall: Also for further clarification. Is the motion specific to the Mayor? 37 Mr. Robinson: I don't think it's specific to all. Ms. Hall: When you say all, you mean? Ms. Sumner-Mack: The Mayor, the Governor? Mr. Wiseman: The government. Mr. Robinson: Well I don't think we're going to get the Governor but... The Mayor...police chief...whoever else...is involved in enforcing the law. I don't think we'd call Mr. Roth. Mr. Wiseman: I think it's the Governor's...the State's responsibility. Mr. Robinson: Yeah. Mr. Wiseman: Yeah. As opposed to the County. Mr. Robinson: And you know they seem to be pointing like this but... Ms. Sumner-Mack: So State officials have to sign this too? This Oath of Office? Ms. Hall: I do not know what State officials... I don't know if they have an oath. Sorry. I don't work for the State so...I am unsure. Mr. Robinson: We're assuming that when the Governor stands up there, that... Ms. Hall: Yeah, he has his own but I don't know what it says...if it's the same or not. Ms. Sumner-Mack: Well this particular one just says the County of Hawaii so. Ms. Hall: Yeah that's ours. That's... Mr. Heintz: It is a comparable one. Ms. Hall: Yeah. Mr. Robinson: Well I'll work with...would it be you or J, drafting the resolution? Ms. Hall: J most likely, yeah. Mr. Robinson: Okay. Alright. So it's been moved and seconded. Is there any further discussion? If not, all those in favor say aye. 38 • Motion and Vote: Mr. Wiseman moved for a resolution to conduct an investigatory hearing as to why the rule of law is not being enforced on the Mauna Kea Access Road. Mr.'Heintz seconded the motion. All members voted aye. Mr. Robinson: Is there a motion to go to executive session? Ms. Sumner-Mack: I so move. Mr. Robinson: Is there a second? Mr. Heintz: Second. Mr. Robinson: Okay, all those in favor say aye. Okay. Motion and Vote: Ms. Sumner-Mack moved to go into executive session. Mr. Heintz seconded the motion. All members voted aye. 11:54 a.m. The Board moved into executive session. 12:50 p.m. The Board returned into regular session. 9. DISCUSSION REGARDING CHANGES TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. (12:50 p.m.) Mr. Robinson: The schedules. So Maria put out these schedule for the rest of the year for the year of 2020. Pivotal year. February the 12`h. That's not going to work. Is that the only time, Maria? Ms. Sumner-Mack: I'm gonna be in San Diego on the hot seat. Mr. Robinson: So that's not going to work. Ms. Sumner-Mack: Or maybe not. Ms. Pagala: I can check with the Clerks if the 13th or 17th is available for the Council Chambers? Mr. Robinson: Since we're meeting on January the 29th, would it be possible to do it later in February. If not, we could just... Ms. Hall: The 17h is President's Day so. Mr. Robinson: So latter part of February. Could we look at that? Maybe and see if you can find that. Ms. Pagala: Okay. 39 10. ANNOUNCEMENTS (12:52 p.m.) Ms. Sumner-Mack: What about March? Mr. Robinson: And then March we've got the 17`h, correct? Ms. Sumner-Mack: The 17`h? Mr. Robinson: Is that right, Maria? Ms. Pagala: That's an alternative date. March 11th, Council is using the Council Chambers. March 11. Mr. Robinson: So we said the 17th or 18th? Ms. Pagala: Yes. Mr. Robinson: So which one of those two days would it be? Either one? Ms. Pagala: It's up to you to decide. Ms. Hall: Which one do you want? Mr. Robinson: Okay. Which one would you folks... Mr. Heintz: What day of the week are those? Ms. Hall: Tuesday and Wednesday. Mr. Robinson: I like the Tuesday because I play golf on Wednesdays. Ms. Sumner-Mack: The 17`h is St. Patrick's Day. You don't want to play golf on St. Patrick's Day do you? Mr. Heintz: Either's okay with me. Mr. Robinson: Either's okay with me. Mr. Heintz: I'll move my golfing. Ms. Sumner-Mack: 18th is fine. Mr. Robinson: 18`h. Okay we do it the 18th. Ms. Pagala: Okay. 40 Mr. Robinson: So March 18. April. The 9th or 13"'? Mr. Heintz: And what date are these. Mr. Robinson: April the 9`h is a Thursday. April the 13`h... Ms. Hall: It's Easter so it's probably not available. Mr. Robinson: 13th is Monday. Ms. Sumner-Mack: You want April 13`h, why? Why not 8th or the 9th? Mr. Robinson: Easter Monday. We don't celebrate Easter Monday do we? Mr. Wiseman: I prefer any day except Monday. Mr. Robinson: Well then April the 9th, it will be. Ms. Hall: They want April the 9th . Ms. Pagala: Okay. Mr. Robinson: So May 13, June 10`h, July is either the 14th or 15`h Ms. Sumner-Mack: 13th is fine. Mr. Robinson: July... Ms. Sumner-Mack: What's June? June 10`h? Mr. Robinson: June 10t1' and then July 14`h or 15'h? Ms. Hall: Tuesday and Wednesday. Mr. Robinson: We'll do Tuesday, the 14`h. And then August 12`h, September 9, October 14. November 11`h...Veteran's Day...important day. 12`h or 16`h? You wanna do the 164h? Mr. Wiseman: We just passed November, right? Mr. Robinson: Yeah. Ms. Sumner-Mack: August 12? 41 Mr. Robinson: Next year. So then December 9t. We're on for December 9'. So those will be the dates. Ms. Sumner-Mack: All these are okay on here except December? Ms. Pagala: What was November? Mr. Robinson: November the I6th. Ms. Pagala: 16th. Okay. Mr. Robinson: Okay, any further items? 10. ADJOURNMENT (12:56 p.m.) Mr. Wiseman: Move to adjourn. Mr. Robinson: Okay, motion to adjourn. Mr. Heintz: Second. Mr. Robinson: Okay moved and seconded. All those in favor, say aye. Motion and Vote: Mr. Wiseman moved to adjourn. Mr. Heintz seconded the motion. All members voted aye. Respectfully submitted: ✓v1 Pew Maria Pagala, Secretary 42