HomeMy WebLinkAbout01-29-20 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS
MINUTES—REGULAR SESSION
Wednesday, January 29, 2020
10:00 a.m. to 3:38 p.m.
Hawai`i County Building
25 Aupuni Street
County Council Chambers
Hilo, Hawai`i 96720
Members and Staff Present:
Rick Robinson, Chair
David Wiseman, Vice Chair
Nan Sumner-Mack, Member
Lawrence L. Heintz, Member
J Yoshimoto, Deputy Corporation Counsel
Maria Pagala, Secretary
1. CALL TO ORDER (10:00 a.m.)
Mr. Robinson: We call ourselves to order. The Board of Ethics County of
Hawai`i, January 29, 2020.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:00 a.m.)
Mr. Robinson: I think I have nine requests for public statements and each person
will have three minutes. And so the first person is Lisa Malakaua.
Ms. Malakaua: Aloha and thank you for allowing me to present my testimony here
today. I don't believe I need to go too much into the United States
Constitution. Other than the first three words of that Constitution
starts with "We the People". And those same people are
guaranteed equal protection under the law. Even before Hawaii
became a part of the United States, the Hawaiian Kingdom
Constitution also stated that each member of society has a right to
be protected by it. Equal protection of the laws is phrase in 14th
amendment requiring that states guarantee the same rights,
privileges, and protections to all citizens. And other words, the
law is the law, regardless of who you are. They are to be fairly and
equally applied to protect our general safety and protect our rights
as citizens against abuse by other people, organizations and by the
government itself. A government that fails to equally enforce such
laws, violates the rights of all their citizens. I think we would all
agree the TMT has brought to the forefront, decades of
longstanding resentment, bitterness and salt and immoral practices
that have not been properly addressed. For instance, like the State
not fulfilling it's obligation to fully fund DHHL. Which in turn
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has only created distrust and poor relations with the United States
by the Native Hawaiians. So yes. This is about so much more
than a telescope. But blocking a public access road will not solve
any of these problems. Nor it is a valid reason to prevent any
project from moving forward that has a legal and or vested interest
in Hawaii. Those protesting the 30 meter telescope challenge the
project at the State level and lost. They were given ample time and
opportunity to appeal the final Hawaii Supreme Court's ruling but
fail to do so. The TMT project has the legal right to move forward,
yet Governor Ige, Hawaii County Mayor Harry Kim, DHHL, and
DLNR have failed to equally enforce the law regarding the
protesting which has only created a racial divide and unnecessary
upheaval. It's bad enough that the State and County are allowing
protesters to block and occupy a State highway to stop construction
equipment of this fully permitted project. But it's even worse for
Ige and Kim to place the community in an uncompromising
position with their request that we support these unlawful actions.
What do you think would happen if a group of individuals blocked
access to Waipio Valley or a church or a school? We would all be
immediately arrested and thrown in jail with no explanations given
or the opportunity to talk ourselves out of it. Furthermore, the
State and County have also turned a blind eye to violations
occurring at the protester's campsite. We have visited the
campsite many times where we provided photos and videos of the
camp that has been littered with damaged and abandoned tents and
abandoned bus, food containers, bottles, cans and piles of trash,
partially or loosely covered up by tarps. DLNR has already
documented the damage to the rare plants as a result of the protest
encampment. In other words, if you or I did this on another side,
we would undoubtedly be fined and or faced with severe penalties.
Mr. Robinson: Okay your time...
Ms. Malakaua: Finally the protest camp should not even be allowed up there in the
first place. Much of it is actually on conservation district land,just
like TMT. However, TMT went through a decade long process
including two contested case hearings and three Hawaii Supreme
Court decisions before they gained their permit. The protesters
should just... The protesters just showed up without a permit for
anything. If we did the same thing, we would be fined and have to
pack up and leave immediately. Our request is simple, the State of
Hawaii and Hawaii County should fairly and equally uphold it's
own clear laws. So far, the State and County have failed in their
fiduciary duties. This needs to change. Therefore, we are
respectfully requesting and counting on you, the Hawaii County
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Ethics Board to be a voice for us. To be a voice that helps compel
State and County officials to uphold their oath to office. Mahalo.
Mr. Robinson: Okay, thank you. I'd like to ask the other people, please levy
yourself to three minutes. We only have so much time to get
through things. Okay the next person is Lanny Sinkin. Mr. Sinkin,
please. Go ahead.
Mr. Sinkin: Earlier I sent in to the Board a memorandum that I prepared about
this whole situation. I hope you've had a chance to read it. If you
have any questions, I'd be happy to address them. But from my
remarks, I want to focus on just two concepts. One is discretion
and the other this morality. I think when you considered
substituting your judgement for the judgment of law enforcement
officials as to whether someone should be arrested or not, that
you're beyond the scope of your authority. And that you're
making a decision on discretion that is normally left to the law
enforcement personnel. When a policeman stops you for speeding,
he has the option of giving you a warning ticket or even letting you
go. And he exercises that discretion in his position. I don't see
that this Board has the discretion to override decisions by law
enforcement agencies as to who should be arrested and win. On
the morality side of things, I think that the previous speaker, well
obviously opposing with what the folks are doing up on the
mountain, highlighted the fact that the...there's a long history here.
That's the context through what you're thinking about doing. And
that history says that there's a...an immoral act that has been
committed starting with the overthrow of the kingdom. And that,
that has been repeated over and over again in different context
where things are done that are wrong and everybody knows they're
wrong. We all know the kingdom is overthrown. That's no secret.
But we act as if it wasn't and that this government has the absolute
right to do whatever it wants on lands that belong to the crown and
the government of the Kingdom of Hawai`i. So I would encourage
you to really,just back off in this situation. I don't think there's a
real role for the ethics commission. There's nothing unethical
about a law enforcement official deciding not to arrest someone.
So I think your appropriate position would be that you've looked at
the issue, we've considered it and it's beyond your jurisdiction. If
you do consider a resolution, I'm assuming this resolution hasn't
been drafted yet. Is that correct?
Mr. Robinson: It has been drafted.
Mr. Sinkin: It has been drafted. Is a draft available to the public?
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Mr. Robinson: No.
Mr. Sinkin: Not yet. Okay. Do you know a schedule for that?
Mr. Robinson: No. After we deal with it today.
Mr. Sinkin: After you...today. Okay. Well maybe we'll have another chance
to visit on this issue when the resolution comes out.
Mr. Robinson: I'm sure we will.
Mr. Sinkin: I appreciate your time. If you have any questions, I apparently
have a minute or so left.
Mr. Robinson: Does anyone have any questions for Mr. Sinkin? No.
Mr. Sinkin: Okay, thank you.
Mr. Robinson: Okay, thank you Mr. Sinkin.
Mr. Heintz: I have a question for the Chair. Are we supposed a copy of Mr.
Sinkin's earlier... It's in the newest packet?
Mr. Robinson: Yeah.
Mr. Heintz: Thank you.
Mr. Robinson: Okay, the next person is Michael Nathaniel.
Mr. Nathaniel: I pledge allegiance to the flag of the United States of America, and
to the Republic for which it stands, one Nation under God,
indivisible with liberty and justice for all. My name is Michael
Nathaniel.
Mr. Robinson: And thank you for your service.
Mr. Nathaniel: Thank you for allowing me to speak today. We are blessed. We
are not only blessed to have such a majestic mountain in our
presence, we are also fortunate that Mauna Kea sits on free soil.
Whether you like it or not, this is America. If you look back at our
history, this soil that we proudly stand on, very well could have
been another country that is not free. I have served my time in the
military and have been to other countries that are not free. I took
an oath to support and defend the Constitution of the United States
against all enemies, foreign and domestic. To say that we are
illegally occupied, to say that this is a fake State, is an insult. Not
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only to me. It is an insult to others who are sacrificing and who
have selflessly served to protect this free land and to protect the
right to protest. Blocking the Mauna Kea Public Access Road to
prevent construction of a project deemed lawful is illegal. I pay
taxes and if a judge rules it legal for the TMT, then I demand that
my taxpayer dollars be spent, not on blocking the public road for a
stalemate. At the least, it is absurd, wasteful, and abusive. Tax
season is upon us. One has to question if our elected
representatives have the voters and tax payers in mind. That our
taxpayer dollars are being spent fairly, equally, and without
discrimination. To our elected representatives, you also took an
oath to support and defend the Constitution of the United States.
Demonstrate the initiative, moral, will and courage to do what we
elected you to do. Your job. We as a free people pay your salary.
Earn your pay. Enforce the rule of law. I believe in my heart, that
if King Kamehameha the Great was alive today, he would enforce
the rule of law without question because he would want this
amazing instrument to be built on Mauna Kea. He would want us
to move forward and not backward. So gather your thoughts and
emotions. Take inventory because this is not okay. This is out of
control. And if not, we will find ourselves in a society that is not
free but defeated.
Mr. Robinson: Time please.
Mr. Nathaniel: Please don't be so narrow minded and so tunnel vision that you
forget that there is a whole world out there. I stand with the
famous, Kalepa Babayan, whose vision is to share the Mauna. In
conclusion with prospects and expectations that we can live with
aloha and live with peace. Let us continue to be blessed that we
live on this amazing island. Continue to be very fortunate that we
live in a free society and thankful that we live in the United States.
To Governor Ige and Mayor Harry Kim, shame on you for
allowing your oath to expire. My oath does not expire and neither
should yours. Thank you.
Mr. Robinson: Thank you.
Mr. Wiseman: Mr. Chairman, one comment. I believe the speaker was referring
to government employees with respect to "earn their pay".
Mr. Robinson: Correct.
Mr. Wiseman: And for clarification, the Board Members here are all pro bono.
Who are volunteers. We don't get paid. Just the attorneys. Thank
you.
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Mr. Robinson: And the next is Luella Crutcher. Good morning.
Ms. Crutcher: My name is Luella Crutcher and I'm here to review. I mean the
number 8. The review the draft and it's regarding the rule of law.
And I question this because I believe there's kind of like...there's
laws that are more important and the constitutional laws to me,
come before what the County does. And the constitutional law
grants us the right to worship. And what is has happened here in
Hawai'i is from the beginning from long, long time ago, back in
1968. That did not happen. Our kupuna, since the beginning, have
told them how holy that mountain is. And the royal recognizes as
the most sacred. It is the tallest mountain from the bottom of the
ocean to the top. That alone gives the world. And if you come up
there and see all the flags, those are for people that are
acknowledging that sacredness. I question whether the TMT could
be in there, in spite of that. And what I found was, it is also a
lalanu'u mau mau. It's considered the highest level of Hawaiian
temple. That has three levels. So it's 3,000 feet down and the lala
is the bottom one. Which means that, that's the way people can go
and visit. The middle section is where the prayers occur. So if you
look at the mountain, that's where properly where all the ahu are,
that they worship. The top is left for Akua. That's where the piko
is. That's where God's energy is. It is so sacred, that on Mt. Fuji,
their top of the mountain you can't drive up there in a car. The
people who really acknowledged this, and there are very many that
exist. You go up there only during special times. You don't go up
there any time. You don't drive the car all the way up there. And
it's special times, according to protocol. Prayers are done
according to protocol. I'm not even able to do that. So as much as
I love the mountain, I don't go up there. Okay that's one thing. So
to me, that's a law that should have been recognized. And that's
what I'd like for you folks to address. Why hasn't this happened?
Why is it that when a Hawaiian speaks about that holiness, it's
ignored? And the people that want the TMT, get the right of way.
I realized that we've had some very intelligent Hawaiians speak.
But they're not. See, I really Christian okay, because I'm from
that generation that we lost the language. So I don't know the
language. And when I ask my father about the old stuff, he said
we're Christians now, we don't talk about it. So I'm learning
about it up there and when I'm learning, it's the Hawaiians didn't
have Gods. They were elemental beings. Tutu Pele is an example.
The lava is Pele. She's not a spirit. The lava is Pele. So the
mountain is special and I would like you folks to start looking at
all the views which I've included in that letter that I gave today.
These are the...
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Mr. Robinson: Time please.
Ms. Crutcher: In 1968. The things...not laws but the things that have happened
up there, that were manipulated by the government to make sure
TMT's got put in. They ignore and to me that's not pono. Nothing
with Mauna Kea, as far as I'm concerned, has been pono with this
government and that is so sad. Because if they had been pono, this
island, you wouldn't be having all this contamination...
Mr. Robinson: Your time please.
Ms. Crutcher: That's the main thing I wanted to say. Yeah.
Mr. Robinson: Thank you very much. We really appreciate you coming and
testifying today.
Ms. Crutcher: There is one other thing though. You know. I believe it's like a
church. And if you listen to other churches, nobody else gets to
talk about what happens to their church. How come all of a sudden
my church gets picked on? Thank you.
Mr. Robinson: Thank you. Okay. Becky Thurston.
Ms. Thurston: Aloha, my name is Becky Thurston. I live in Waimea, here on the
Big Island. I've lived here for over 50 years. This is home. This
is home to my children and grandchildren. We love this place.
We love this island. We love the culture. We love the mountain.
We love everything about it. I'm here on their behalf. I want to
express my concern about this petition or this document that you're
proposing. I watched the video of your last meeting. And I was
not entirely convinced that you have done your homework on this
stand that this occurring up on the mountain. I could be wrong.
Maybe you have. But at that meeting, it wasn't really clear. If
your intention is to examine ethical violations, then I hope that
you'll look at the issue with an open mind. Hopefully you'll
understand that there's been ethical violations for over 50 years in
the mismanagement of the mountain. By the County, the State,
Department of Hawaiian Homes Land, Department of Land and
Natural Resources, the University. Okay and these are the things
that have led to this stand-off. It didn't just happen out of the blue.
So if you're gonna open this can of worms, which I wouldn't
advise. Do it fairly. Don't go into it assuming that we're just a
bunch of rebel rousers that enjoy going up on the mountain...you
know disrupting things. We're a group of people, a very large,
group of people, who are here out of moral obligation. Right. If
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we're gonna open this can of worms, then think about it. We feel
moral obligation to peacefully protect the mountain, the culture,
our island way of life. There's many examples in history where,
when people act out of..moral obligation, it can be ethical. It can
be ethical. Not always, but it can be. So when the rule of law is
designed and manipulated, which it has been to benefit a huge
corporation from other countries. We have the right and the
responsibility to protest that, okay. I feel that many of us do. If
the rule of law is designed to not protect cultural values, does not
protect and respect the aina, then we have a moral obligation to
protest. We're there for a reason. So I guess I just wanna finish
saying that the bottom line here is we're really here for, of course
ourselves but for our children, our grandchildren, for this island
life that I think all of us here really appreciate. And I feel like if
we don't do it, I'm not sure anyone else will. So I hope you'll be
respectful of the history behind this alright. Thank you. That's all
I have to say.
Mr. Robinson: Thank you very much.
Ms. Thurston: Thanks for the opportunity.
Mr. Robinson: Ana Na Wahine Kaho`opii.
Ms. Kaho`opi`i: Aloha, good morning.
Mr. Robinson: Aloha.
Ms. Kaho`opi`i: I could be here for hours discussing this issue as you know. But
I'll try to keep it short and I also watched the video of your
previous meeting and I also question if this is within the prevue of
your stated purpose. I'm not gonna go over your purpose but I
question that to begin with if you can even bring this up internally.
It was my understanding that you're here really for public
deliberation and to hear public complaints. But anyway moving
forward. I felt a little concerned when you decided to use the
Mauna Kea issue to set a precedent and also to use that issue to
suddenly to become proactive by launching an investigation and by
going ahead and creating a resolution. Seeing that you've gone
ahead with that anyway, I'm really hoping that you're fair and that
you represent all sides. So not only... And we can agree on what
is lawless I think and what has not been enforced but I think where
we differ is...what those things are and those are the things that I
would like to discuss today. So you're deciding to do this because
you've received emails and you've read some letters to the editor.
I also would like to remind you that tens of thousands of your
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citizens continue to hold vigil. Not only on the mountain, but also
around the world. Volumes of expert testimony from leaders and
international scholars, tenured professors, across the globe have
also weighed in on this issue. Ignoring communications from
entities as far reaching as the United Nations has specifically
weighed in on the Mauna Kea issue and I have a copy of that letter
for you. I'll leave it. But quoting United Nations, their statement
was that they urged the Federal Government as well as the State
Government of Hawai`i to honor their obligations on human rights
and in particular, indigenous people's rights to practice their
culture in religious traditions which preclude their preservation of
Mauna Kea. Moreover, take into account the rights of indigenous
people to be represented appropriately. United Nations urges the
media and the State of Hawaii to communicate responsibly and to
avoid biased reports that demonize indigenous people and
represent them as a hindrance to science and progress. And thus
encourage hatred and discrimination and I think this issue with
Mauna Kea has really brought that to the forefront. It's been in all
of the struggles that I've been in, it's been absolutely vicious, in
terms of how the Hawaiian people have been, not only represented,
but treated. So your actions and the way that you decide to go on
this, are really going to either add to that or defuse it. And I'm
really hoping that this continued disenfranchisement of the kanaka
from systems of justice in our own homeland can be brought or
brained in through your actions here today. I also want to remind
you that being disenfranchised is a feature of institutionalized
racism that has again identified itself. I feel without knowing more
about what you're doing but possibly could be happening in this
body by your neglecting to do your due diligence. By scrutinizing
the behavior of Governor Ige and Mayor Kim, not only with not in
enforcing the law as you see it by removing us from the access
road. But by all the other things that have happened in the course
of these last six months. I think the administrations of Governor
Ige and also Mayor Kim have resulted in some criminal actions
that fall under your Section 3-83 of County Code for fair treatment.
I want to just want to go over that. There's not even really a
decision on the disposition of the access road yet. And if you're
not clear about that, the access road right now, which was
Hawaiian homelands and there's a lot of, in my opinion, crazy
ideas that have been concocted by the State. That the pavement
belongs to the Department of Transportation but the land belongs
to Hawaiians and so therefore, it's still the inventory of Hawaiian
Homes but it's under the jurisdiction of the Department of
Transportation. To me, that's just stuff that's been concocted
lately. And if you don't know that the disposition of the access
road is being litigated at this point. So that's not settled. There
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hasn't even been a beneficiary consultation on the disposition of
the road yet.
Mr. Robinson: Time please.
Ms. Kaho`opi`i: So that's up in the air. We've wasted millions of dollars doing
this. Including paying for the EIS. My other thing I really want to
bring up is how State... Some of things I'm gonna agree with our
group on. The State and the monies that were allocated. Media
PR. Law enforcement. The purchasing of combat level
enforcement tools, specifically to come after kanaka and the people
that are fighting on the access road. Grant money being used to
fund TMT legal fees that included the contested case. And that
included also the Supreme Court case. The abuse of executive
powers. Declaring a false state of emergency. Targeting and
harassing citizens on the Saddle Road. Bartering the destruction of
property on Department of Hawaiian Homelands by destroying the
classroom and the guard shack. If you don't know the laws of
Hawaiian Homelands, you can...you can...build a structure as
long as there's not a kitchen or a bathroom. And if you are going
to take that property down, you have to give the people 30 days if
it cost over$6,000. So the destruction of that was illegal...of the
classroom. And then my last thing is the black propaganda
campaign that was paid for by tax dollars. That was launched from
the Governor's Office and I have insight into the PR firm that
specifically did that. But it funneled through State institutions and
really it demonized. It humiliated and it disenfranchised the
Hawaiian people on the mountain by presenting us as alcoholics,
drug addicts, EBT people. Not that I have an issue with that. But
most of us are educated professional people that have served our
communities...all of our adult lives. So in closing...
Mr. Robinson: Please.
Ms. Kaho'opi'i: I'm asking. I know. But it's very important to us. In closing, if
you're gonna go ahead and move through this with this resolution,
I'm gonna stand guard and hope and demand that our issues also
be part of the resolution that you're bringing forward. And it's not
only people who think we should be removed from the mountain.
Thank you.
Mr. Robinson: Thank you. There's a question.
Ms. Sumner-Mack: Excuse me. The letter that you mentioned. You referenced...
Ms. Kaho`opi`i: United Nations.
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Ms. Sumner-Mack: That you would like to share with us. I'd like to see that. I would
very much like to see that if you would be so kind. Thank you.
Ms. Kaho'opii: Yes. Okay.
Mr. Robinson: Thank you.
Ms. Malakaua: [Inaudible]
Mr. Robinson: Excuse me but... Not in the course of our hearing. Juergen
Canda.
Mr. Canda: Aloha.
Mr. Robinson: Aloha.
Mr. Canda: I'm Juergen Canda. I recently retired from the Hawaii County
Police Department a little over a year ago. And I served as a
Supervisor, Patrolman, Lieutenant, and sometimes as an acting
Commander. South Kohala. North Hilo. Hamakua. And I was a
Patrol Commander in the South Hilo District as well as a
Lieutenant. And I watched your...the video of the last hearing and
honestly, it confounded me. I just don't even really know where to
start so I think I'll just... Other than the issues that the previous
testifiers brought up. I'll stick to the central issue which is using
an ethics regulation to compel somebody to take action in doing
their job which...normally you know in ethics, with police ethics,
it guides you. It constrains you from abuses of power. Right? So
if you read the purpose of the ethics in article 15. It prescribes a
standard of conduct and it's there. The spirit of that is to be sure
that people aren't persecuted or treated unfairly and that they're all
given equal treatment. It's not normally used in a proactive
manner to prosecute people. I had a hard time wrapping my mind
around that one but... I made a complaint against the police
department. And it was said in that meeting...in your last meeting
that there was no complaints about enforcement. And it was all
over the news, that they were using a military type strategy that's
been used throughout America that is found to be unconstitutional
like too many civil rights abuses. With this enhanced enforcement
traffic, was just a component of that...that strategy employed by
the State. So where there up there writing 2,000 more tickets than
the Puna police that services 50,000 people. They write 2,000
more tickets than the Puna police would write in a year. It
just...was just appalling. I couldn't believe what was going on.
On this little narrow road, that runs through...it threads through
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Hawaiian Home Lands. With the native Hawaiian issue, and
you're carpet bombing this place with citations to criminalize a
civil movement. In the minds of the public. And if anybody has
any question about that... When I testified about that at the
County Council hearing...
Mr. Robinson: Time
Mr. Canda: What they were doing. I'm sorry did you say time?
Mr. Robinson: Time. Yeah, if you could wrap it up.
Mr. Canda: The next day, the Governor was asked if he... If there was a safety
issue on Mauna Kea and his response was...yes, look at all the
citations we have. What's central to this is issue is that...in the
recent hearing for Chairman Aila...they determined that it's an
illegal structure. The Mauna Kea access road. They've never paid
for it, they stole it. That's the problem. And it's not the
jurisdiction of the County. The police are allowed to go on there
through the MOA...to assist with emergencies. But it's not their
jurisdiction. So they have been trying to clear that road. They 38
arrests to prove it. They have 8,300 citations. They allow the
DUA fatality rate to rise by 80% while neglecting general safety of
the public. Running fake road blocks up there. Screening people
to check their papers and asking them, not if they were drinking,
but are you going to the Mauna. And then pulling them over and
writing tickets. Okay so, this is not that they were dereliction of
duty. It's whether... It's a performance of duty issue if you wanna
look at it that way. Cause they have been trying to clear the road.
They spent four months writing 8,300 tickets to prepare the
grounds for a clearing. To debilitate and to trick the people that
are up there. So they have been trying to clear the road. That's
part of the strategy. So it's whether...if they're being competent of
that... I've had to do discipline for County officers before. Over
dereliction of duty type things and there is no...there's nothing in
the County on performance of duty.
Mr. Wiseman: Is it your contention that the access road is State jurisdiction or a
County.
Mr. Canda: It's not a... It is the County...or the State. That's why we have an
MOA. We have an MOA.
Mr. Wiseman: Also, could you tell me the status of the complaint you filed? Was
that with the County?
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Mr. Canda: With the Police Commission. And they heard it and they didn't
accept it or they accepted it but they didn't open it up. But they
immediately terminated the enhanced operation. So I guess that
the quid pro quo there.
Mr. Wiseman: Thank you.
Mr. Robinson: Okay thank you.
Mr. Canda: It's not the County jurisdiction.
Mr. Robinson: Right. Okay next person and we're still trying to keep our three
minute schedule. Geronimo. Is that right? You have a last name?
Mr. Lluberas: Lluberas.
Mr. Robinson: Lluberas?
Mr. Lluberas: Lluberas. Yes.
Mr. Robinson: How do you spell that?
Mr. Lluberas: L-L-U-B-E-R-A-S
Mr. Robinson: Oh okay. Go ahead.
Mr. Lluberas: Thank you. So I'm here on behalf of the Mauna as well. If that's
not apparent. If you look behind you, there's a seal. On that seal
is the Mauna. Now the previous mention of the police boy, so I
myself received several citations while protecting the Mauna. I
believe that funding should go to other things. For example, the
previous person that the spoke was a firefighter, I myself am a
volunteer firefighter. Multiple volunteer firefighters had lost their
funding to their stations. I have a huge area to cover, all the way
Ainaloa to Kalapana. That area of the island has a higher crime
rate. If you're gonna try to use money to get sex trafficking, drugs,
carjacking, things of this nature...that would be the place to go. So
I urge you to use the money and your position of influence to
better situate our island for a better lifestyle. I believe that
throwing money on the Mauna to help international corporations
waste billions of dollars when there's already telescopes out there.
Some derelict that haven't been removed. That's just a waste of
money. So as an ethical committee, please take that into
consideration. Thank you.
Mr. Robinson: Thank you. Michele Prevost.
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Ms. Prevost: Aloha.
Mr. Robinson: Aloha.
Ms. Prevost: My name is Michele Prevost and I oppose this petition. Well, you
do not own the access road because of unpaid debt. You can hear
me right?
Mr. Robinson: Right. It's fine.
Ms. Prevost: You do not own the road because of unpaid debt on the road for 30
years. And did you get permission from the Hawaiian
beneficiaries who own the land to even build this road? And then,
you arrest the Hawaiians that are on Hawaiian Home Lands who
are only protecting their Mauna. Wow. Why do you not listen to
Hawaiian's, the protectors? They deeply care for the aina. I am a
protector by the way. I got arrested five years ago. And I will get
arrested again if I have to. Mauna Kea is sacred to many people.
So many telescopes already. So much man made EMF,
electromagnetic fields, that are not healthy and not pono or on that
Mauna. The tallest mountains hold the natural balance of this
planet. That's what the Hawaiians believe. Telescopes disturb this
balance. Also disturbing prayer on the Mauna. The highest alter
of the Hawaiians. When you go to the top of the Mauna, you let
go of all pilikia to pray. The telescopes do not belong up there. To
me, they are pilikia. No more. Take them down. Honor the
Hawaiians. Mahalo.
Mr. Robinson: Thank you. The next person is Herbert Dorsey.
Mr. Dorsey: Well, today we heard a lot of conflicting opinions. It's always
good to hear the other side of the story than what we might believe
is true. But when we get right down to it, we live in a
constitutional country. And the highest law of the land is the
Constitution. And the Constitution specifies a separation between
church and State. The church cannot tell the State what to do. The
State cannot tell the church what do. Okay. Now we have this
situation on Mauna Kea where a certain...what we call religion.
The Hawaiian kahuna religion okay. Is telling the State that they
cannot go ahead and build a building which is already past 10
years of lawsuits. All kinds of EIS hurdles and everything
else...because of their religion. Okay now, let's talk about the
Hawaiian religion for a minute. Hawai'i was first invaded not by
Europeans, Hawaii was invaded by the Tahitians. And when the
Tahitians invaded Hawaii, they brought their false religion with
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them. This false religion believed in human sacrifice and believed
in slavery.
Mr. Wiseman: Why do you call it a false religion?
Mr. Dorsey: Anyway, I'm making some historic points. I'm a historical
researcher and writer myself so...
Mr. Robinson: Go ahead and finish up and we'll ask you some questions.
Mr. Wiseman: Sorry Mr. Chairman.
Mr. Robinson: Yeah.
Mr. Dorsey: Okay so, we have a false religion coming to Hawaii and taking
over. They had the ali`i and the kama'aina. The kama'aina were
worse than most of the peasants. And Europe at the time, they had
no right to life, liberty or the pursuit of happiness. They were
confined to their own ahupua`a. They could not travel from there.
The ali`i were like the aristocratic class and they could collect
taxes from the kama'aina. And they didn't even [inaudible] had
human feelings. They had no rights to life, liberty and pursuit of
happiness. They're ruled by a very strict bunch of kapus, which if
the kapus where violated, they were immediately killed. So it was
not a very good religion. I have to point out. The kama'aina were
never allowed on Mauna Kea. Only the highest of the ali`i could
go there. And this was true right up to the reign of King
Kamehameha II. Now Kamehameha II had already brought in the
missionaries, the Christian missionaries and had been affected by
Christian beliefs. And he realized the great in justice of many of
the kapus. So he started breaking these kapus.
Mr. Robinson: Time please.
Mr. Dorsey: Okay so anyway. What I want to point out to all these people now,
I respect the fact that they worship the mountain and so on. But I
also want to point out that some of their beliefs are based on a false
religion. And King Kamehameha I and every heiau he built, he
had sacrificed a human being, a living human being and placed
them inside the corner stone of each of the heiaus. So don't tell me
that this religion should be respected that much. Okay.
Mr. Robinson: Okay.
Mr. Dorsey: Okay, another statement.
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Mr. Robinson: Thank you. Wait, I think Mr. Wiseman had a question for you.
Mr. Wiseman: I have a comment rather than a question.
Mr. Robinson: Okay.
Mr. Wiseman: When we talk about religion, isn't religion the selection of an
individual to worship the omnipotent powers, spiritual powers?
And how can you call that false? Certain standards?
Mr. Dorsey: Yeah.
Mr. Wiseman: I don't intend to get into an ideological discussion here, cause
that's not our purpose. But that's just my statement.
Mr. Dorsey: Believe me, I've been through a lot of indigenous peoples'
ceremonies. I've lived in Sedona, Arizona for ten years. I used to
go to the hopis all the time. I know medicine men there. Okay.
And I respect that they worship the Great Spirit as I do too. I
worship the Great Spirit as well. But when you sacrifice human
lives, that's a false.
Mr. Robinson: Thank you, thank you, thank you. Okay. No comments please.
Let's stay on what we're doing here. Alright, Daron Akiona.
Mr. Akiona: Aloha Commissioners. My name is Deron Akiona. When I saw
this agenda come forward, actually I applauded because maybe this
commission can add some light as to who has jurisdiction on that
road. And the reason why I say that is, I sat here on July 14th when
our Mayor and our Police Chief said, "The County has no
jurisdiction. It's a State operation." Okay. I've heard... I went,
there's a trial going on for the first five arrestees on the mountain.
In that trial, the engineer for the Department of Transportation
said, "It's a State road". Then he said after being cross examined
and they showed him the official website of the Department of
Transportation. Then he said it's a County road. Okay. So we
started off here and maybe your legal counsel can somebody can
write one actual legal memo that says who has jurisdiction.
Because until we determine at least that minor issue, everything
else is irrelevant. Okay and I say irrelevant because if it's
determined that, that road still belongs to the Department of
Hawaiian Home Lands, which I'm a graduate of the University of
Hawai`i Law School. K, contract 101. You sign a contract, you're
expected to perform. The contract, the alleged contract that was
made between the State and the Hawaiian Homes was in 1994.
They was supposed to be exchanged for money. For the access
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road. That money was never delivered. Till today. In fact, the
Chairman of Commission of the Hawaiian Homes Land, at his
hearing last week said...we hired an attorney to figure out the
value of the road. 25 years later, no transfer. And yet we seen
people come up here and say...the law enforcement should do
this...the law enforcement should do that...the not enforcing
this...they not enforcing that. Let's see what has gone on since
July 15. The Attorney General of the State of Hawaii subpoenas
Hawaiian Airlines for records of mileage of Hawaiian Airlines
members who contributed miles to the kia`i on the mountain. If
that is not legal harassment, I don't know what is. Then, last week,
the Attorney General subpoenas the tax records of kahea. Which
just happens to be involved with activities up on the mountain.
This is blatant harassment by government. Our beloved police
department gives out 8,000 plus citations on Hwy 2000. 8,000,
within two months. Is that harassment? At least, if you ask me,
that's unethical, what's going on here. So if the commission wants
to get involved, and I say jump in. Jump in two feet. And go
ahead and express an opinion. Why the law enforcement is not
doing it's job. But try and determine who has legal jurisdiction of
that mountain and that road. Because until that issue is addressed
and completed, everything else becomes just...eh, what you wen
open. So I ask you, Chairman Robinson and the Members of this
commission to go ahead. Step in. Jump in because it's getting
more exciting every month, as this goes on. And as somebody
who went to law school, and I watch the legal opinions be
expressed and God knows just watch the Trump impeachment and
you going get one constitutional lesson, you neva, eva going get in
law school. And express a view of what this commission believes
is going on, on that mountain because those of us who go up there
and those of us who go to legislative hearings and County, County
Council hearings, we still in the cloud about the situation. I think,
so is our Police Chief and our Mayor. Thank you.
Mr. Robinson: Thank you.
Mr. Wiseman: I have one question Sir. The subpoenas you've mentioned, are
they pursuant to some ongoing litigation?
Mr. Akiona: No, those subpoenas that has been handed out by the Attorney
General. One was quashed by the court, which was the Hawaiian
Airlines subpoena. The court said it's too broad and Hawaiian Air
[inaudible]. The current one now, I believe the hearing is today or
tomorrow.
Mr. Wiseman: It's in a case, ongoing case?
17
Mr. Akiona: It's an ongoing case, I think it's today or tomorrow they're going
before the court. Today.
Mr. Wiseman: Okay. Thank you.
Mr. Akiona: You're welcome.
Mr. Robinson: Thank you very much.
Ms. Sumner-Mack: I'd like to just make a comment, generally that, I believe our
resolution is to...
Mr. Yoshimoto: Mr. Chairman, I would... Excuse me for interrupting. I would
finish the public testimony first and then we can get into...
Mr. Robinson: Okay. Next is Ronald Fujiyoshi. Thank you.
Mr. Fujiyoshi: Aloha, Hawaii County Board of Ethics Members. My name is
Ronald Fujiyoshi. I became a resident of Hawaii in 1941. And in
this County of Hawaii in 1958, '56 when my father became the
Pastor of the Church of the Holy Cross. I attended the University
of Hawaii here in Hilo when it was only two year school in 1958
to '59. I graduated from the University of Hawai'i at Manoa,
married a Hilo girl, studied at the Chicago Theological Seminary.
Graduating in 1968 with a degree in theology. Specializing in
Christian ethics. I served as a Missionary with the United Church
of Christ in Asia for 20 years. Working with people of various
faiths and returned to Hilo in 1988 where I've lived since. Partly
because my specializing in Christian ethics, I was shocked when I
viewed parts of a video of your meeting of December 11, 2019,
discussing the possible adoption of a resolution addressing the rule
of law for the continuing blockage of the ingress and egress of the
Mauna Kea Access Road. Wasn't the pass Chair of this Board of
Ethics, Dr. Ku Kahakalau? In respect for her, clearly a native
Hawaiian leader, why weren't you inviting her to comment on this
issue? What I've heard are the words, the rule of law. I want to
say basically two things about the rule of law. First, I heard on the
video that Members of the Board of Ethics say that they have taken
an oath to uphold the Constitution of the United States and the
Constitution of the State of Hawai'i. I am a believer that the
overthrow of the Kingdom of Hawai'i was illegal and immoral.
And that justice calls for a full reckoning with this history. I don't
expect everyone to believe the same way that I and others do.
However, I expect you, the Members of the this County of
Hawai`i, Board of Ethics, to uphold article 12, section 7 of the
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State of Hawai`i Constitution. This article on traditional and
customary rights reads...the State reaffirms and shall protect all
rights, customarily and traditionally exercise for substance,
subsistence cultural and religious practices and possess by
ahupua'a tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the right of
the State to regulate such rights. This is the basis of law in the
State of Hawai`i. The State Constitution. You should be
supporting the protectors on Mauna Kea. The native Hawaiian
cultural limerick, religious factitioners who believe that Mauna
Kea is sacred. Second. We all have been taught that our
democratic form of government has tree branches that hold each
other in check. The administrative branch, the legislative branch
and judicial branch. The 38 kupuna who arrested on July 17, 2019
are being tried in the courts of law.
Mr. Robinson: Time please.
Mr. Fujiyoshi: Until the cases are completed in the judicial system, you cannot
claim that you know what the rule of law means for this issue
related to Mauna Kea. I was among the protectors four years ago,
who arrested for the exact same charge of obstruction. Those that
were arrested were found not guilty and there were some...won on
the argument of the lessor of two evils meaning that they were
found innocent of the charge of obstruction because they were
protecting the greater evil of the desecration of a sacred mountain.
In conclusion, I suggest that the County of Hawaii Board of
Ethics, take no action until the judicial process is completed. Only
then, will what you have call the rule of law, become clearer. In
the meantime, I suggest you learn more from the native Hawaiian
cultural and religious factitioners by going to the kupuna tent on
the side of Mauna Kea Access Road and take the time to dialogue
with them to learn more about the rights of native Hawaiians that
you have pledged under oath to uphold. Thank you for the
opportunity to testify.
Mr. Robinson: Thank you Kahu. Next we have Sylvia Dolena.
Ms. Dolena: Aloha.
Mr. Robinson: Good morning.
Ms. Dolena: I'm Sylvia Dolena and I'm speaking for myself and for my farm,
Pele Lani Farm which was covered by lava in Kapoho. Where I
lost my home, my business and the beautiful land, 10 acres, close
to the ocean. I'm also speaking for indigenous people. I'm Native
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American from South Texas and I moved to Hawai'i because
Hawai`i feels like my home. Not Texas, where I was persecuted
and discriminated against. My cultural rights were taken away and
a lot of my family reside on reservations. I do not want to see that
happen here. The Mauna is a public trust. It is sacred land. And
as people have testified, there are protections for cultural and
spiritual practices. Those must be protected or they will be gone
forever. Have you ever been to Native American reservation? Not
pretty. Have you been to the ghettos here in Puna? Not pretty.
The Mauna has sacred energy. I've visited there many times and
the energy was beautiful because the people there were committed
to protect the sacred land, the sacred mountain, their culture, and
their beliefs. That should not be taken away, ever. This is above
the law. This is really above the law. It goes to a higher power
and a higher law. Please consider that. Mahalo.
Mr. Robinson: Thank you. Nelson Ho.
Mr. Ho: Aloha everybody. My name is Nelson Ho. I have been since 1995
actively opposing the land use mismanagement of Mauna Kea.
Often on behalf of the Sierra Club. But I'm here today on my own
behest and as a kia'i, one of the protectors of the mountain. I think
the investigation of the ethical behavior of the County is properly
within your purview. I don't think that the wording of the
resolution is correct, however. And one of them was brought up
by my friend, Ron Fujiyoshi. The rule of law is still deciding on
whether that road is properly or improperly being challenged by
the protectors and the elders, the kupuna. So I don't think you can
rule on that. However, I would like you to investigate the ethical
behavior of the County and maybe even the State. Are they
participating in unethical behavior against the Hawaiian people and
the Hawaiian culture? I think that is something you should take a
look into, cause not enough people have, Statewide. Not enough
people have and that's why we're in this divisive situation where
the Hawaiian people and local residents won't take it anymore. I
have given up going through the judicial system, personally. And
I'm willing to commit my person to stop the desecration...for the
desecration of the mountain. Because I don't know of any other
recourse available to me as a person. So broaden your view if you
take this issue on. Do not participate in the ongoing institutional
racism of the State administration and the University of Hawai'i,
specifically. I challenge them to change their racist behaviors with
regards to their mismanagement of Mauna Kea. Early in 1995
when I became visible and I brought to the public's attention, the
rubbish being blown into a ring of shrines that surrounds the whole
mountain. There was construction debris that was blowing off the
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summit, into the area where the Hawaiians traditionally worship
and built shrines and alters. And when I became visible, one of the
kupuna, Aunty Pelehonoa of Ka`u, called me up and said...Nelson,
I've been complaining for years earlier about the unlined cesspools
that are being used at the summit. And that's a huge affront to the
Hawaiian people to have their most sacred landscape desecrated by
human feces. Sure, it's in a hole, but that hole is not lined. It's
not a plastic septic tank. It goes directly into the land and what
many believe, into the water system eventually of the Big Island.
I'd like you to include that in your view of the ongoing and those
online cesspools are being used today. Okay. They're not closed.
The University did not stop them. And as we are talking about
decommissioning the first telescope, I am asking University to
completely dig it up. For two reasons.
Mr. Robinson: Time.
Mr. Ho: And I'll summarize. The first reason is to find out exactly what
went into it because Sierra Club believes they were improperly
disposed chemicals that could contaminate the ground. And
secondly, the University always denies any connection between the
summit of Mauna Kea and aquafers, waters in the lower elevations.
And they say because we don't know the geology. One way to
know the geology is to dig it up and find out exactly how far the
pollution has gone down rift.
Mr. Robinson: Okay.
Mr. Ho: So thank you.
Mr. Robinson: Thank you Mr. Ho. Next Tanya Aynessazian. Close enough.
Greek?
Ms. Aynessazian: It is not, it's Persian.
Mr. Robinson: Persian. Okay.
Ms. Aynessazian: Thank you for this opportunity to come here today. So it's clear
from the testimony today even that facts are still being debated at
this time in regard to who and what agencies have jurisdiction over
the access road. So I'm not sure why you'd want to voluntarily get
involved in this. It's certainly a can of worms. So I took off work
today here to voice my concerns about the questions and topics
that come in front of you guys. You know we have specific real
ethical concerns. The public does not trust...even our local
government you know. And you guys have this opportunity in
21
front of you to really change that through the topics that you
discuss and the things not just the decisions you make but the
things you initiate and the things you work on here. You know we
have institutionalized racism and ignorance, as well as,
institutionalized cronyism. And in in some cases they affect
commissioners like yourself and other boards. So you mentioned
Sir that this Board is pro bono and not getting paid and I know you
mean being paid directly and financially for your service. This
Board...but we can't deny that through position and being privy to
matters behind closed doors sometimes appointed and volunteer
commissioners do stand to personally gain from personal
relationships through their business. Non-disclosure and
transparency is clearly unethical so... For example, I see a
commissioner who is up on your agenda. He's on the Windward
Planning Commission, a Mr. Gilbert Aguinaldo and I read about
him in the paper. He's a Council Member's uncle who stand to
potentially make $900,000 in a real estate transaction with the
County. And a fast tracked approval for the bus hub in Pahoa. A
hub that I've definitely support but this was not...neither disclosed
by the Council Member nor by the Commissioner. $900 for
commercial property next to the most recent lava flow in
residential homeowners property values have declined
excruciatingly. And the County is losing money on the
tax...property taxes from the Kapoho loss, right, in the Leilani
losses. And yet we're gonna pay$900,000 in this fast tracked
approval. Anyway, it's those types of specific ethical and moral
concerns I would hope to see you discuss. And maybe even
initiate, rather than initiate getting involved in issues of judgment
and discretion that are clearly still at debate and in courts. So you
know you have the opportunity to help us all gain further trust in
our local government. I do support you guys on what you do and I
think there's a lot of people here today who come and have you
know supported ethical concerns that would love to get involved.
So when you guys think that there's openings and stuff, make sure
the public finds out about it. Cause we're not gonna be you know,
it's really hard. And we want to work together. So thank you for
your time.
Mr. Robinson: Thank you. Okay. Noe Noe Wong-Wilson.
Ms. Wong-Wilson: Aloha.
Mr. Robinson: Aloha.
Ms. Wong-Wilson: I'm Dr. Noe Noe Wong-Wilson. And I wanted to thank you for
allowing us to testify this morning on these issues. First let me
22
say, it really is a challenge to testify on a draft resolution that is not
written yet. So I hope you're just kind of open... That wasn't me
was it?
Mr. Robinson: No.
Ms. Wong-Wilson: Okay.
Mr. Robinson: Go ahead please.
Ms. Wong-Wilson: Open to the wide range of comments that you're receiving. It does
appear though that your intent is to investigate the fact that the
Hawai`i Police Department didn't come and arrest all of us. I'm
one of the kupuna on the Mauna and we do invite you to please
come and visit us because then we can get into a real conversation.
You can come and see exactly why we're there and where we are
on the side of the road right now. As you know, we left the road
on December 26 when after the Governor declared the road open
so I remind you first of all that the Governor declared the closed on
July 15th. And so we took to the road on the 16th and were arrested
on the 17th of July, sitting on a closed road. We had never stopped
the public from going up the road. Although it was admittedly,
you couldn't drive through our tent. But the...all the vehicles were
directed around us to the cattle guard where the DOCARE officers,
the State officers, sat. And they kept people from traveling further
up the mountain. The general public, which included our own
people as well as hunters and tourist. So the people that did have
free access to the Mauna through this whole time...this whole
period of time about approximately five months was all the
astronomers and all the their staff support, all of their contractors
who continue to go up to the summit area to work on the facilities
up there, all of the employees that work up on the Mauna and of
course all law enforcement. And at one time there were quite a
number of law enforcement officers from all agencies who were up
on the mountain for any length of time. So we were arrested, but
not by the Hawaii Police Department. We were arrested by the
Department of Land and Natural Resources, by the DOCARE
officers, by the State sheriffs. The Hawaii Police Department I
believe was somewhere. I don't know where though. They
weren't readily visible to us. They weren't in the front rows. The
only time in this five month period that I ever encountered the
police, Hawaii Police Department directly...because I'd been
residing on the Mauna continuously since the beginning...were the
two nights that I called for police assistance because we had an
individual who was acting out on the Mauna. And we wanted
some assistance. So two times, I had direct contact with the Police
23
Department. And although they were occupying space, about five
or six miles down the road at Pohakuloa, both times it took almost
an hour for them to come in and respond to our calls. Mainly
because they waited until they had about 14 cars, 14 officers
gathered from who knows where. Other parts of the island waited
for them to come up so they could come in for us. And both times
they refused to be of assistance to us because no one was
physically attacked or physically hurt. So because we were
threatened but not actually shot or stabbed or punched, they felt
that they had nothing to do with it and they left. So those are the
only times that we, on the Mauna, those of us in the encampment
ever physically worked directly with the Police Department. So
here's my formal testimony. I do support the words of Lanny
Sinkin and Ana Na Wahine Kaho'opi'i and their testimony. And I
don't believe the authority of this committee includes...should
include second guessing law enforcement decisions. However if
you venture into this area, you really should be looking at the
expenditures of nearly five million dollars in overtime that was
incurred by the Hawaii County Police Department in purchases.
Not only overtime but purchases of weapons and supplies to
militarize themselves in preparation for, I suppose, what they
considered to be our insurgent acts. But we're, I remind you, very
peaceful people. We have no weapons. Although my
understanding is our bamboo flutes that we use in our ceremony
was considered to be a potential weapon by an officer. You would
have a hard time damaging anything with a small bamboo flute.
But in their descriptions of us, those are the kinds of things racist
things that they said about us in our stand. I'd also like you to look
at the fact that road blocks were created under the guise of DUI
checkpoints. And the roadblocks were often using State equipment
and managed in a manner that is not appropriate or not customary
for the normal DUI roadblocks. By using the highly qualified
authority instead of you know the entry level police officers. And
often giving tickets to motorist who were citizens traveling back
and forth between East and West Hawaii, tourists. And
sometimes going three miles over the speed limit or stopping them
for such things as tint violations which have no rules attached to
them. So there's no way to determine whether a tint is appropriate
or not. And remind you that many police vehicles also have tinted
windows. We had one kupuna who was stopped. A woman,
elderly woman, driving by herself who was stopped. Asked to get
out of her car, frisked by a male police officer and investigated as
if she were carrying contraband. She had a cooler in her backseat
of her car with water and ice in it. She come from camp. The
intimidation practices caused citizens like that to be fearful to not
want to file a report with the Police Commission because it would
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expose them. So it's very, very challenging. This is most certainly
an ethical issue relating to the harassment of citizens and visitors.
Because frankly, any of us in camp who have a registration sticker
that was outdated or a safety sticker that was outdated, were given
fines in the first week or two. We reminded everyone every day to
make sure that their registration was up to speed and they're safety
inspections were up to speed. And all of us drove five minute
miles below the speed limit to just avoid any confrontation with
police. But if you do move forward with this resolution, I want
you to widen your scope. Because civil disobedience is a moral
act. It is a very act that has historically changed laws to become
more ethical and even handed for all people. And I remind you
that at one time in the laws of the United States, slavery was legal.
Discrimination against blacks, gender choice, woman's rights were
all issues that were challenged by civil disobedience. And it was
because of that, that those laws were changed. So as you move
forward, widen your scope if you choose to do so, to include
those...all those issues mentioned by Ana Kaho`opi`i in her
testimony. So that you can understand the root cause of this
movement. Why we sit on the road. And I won't even mention
some of the previous testimony that just doesn't sit well with some
of us. You will also have to investigate the State of Hawai`i and
the Governor and his direct involvement. These decisions were
not made only by the Hawai`i Police Department, not at all. The
law enforcement effort was under a unified command. So in police
talk, there's a structure, and the top of that structure was the
Attorney General of the State of Hawaii who I know was in
contact and communication with law enforcement every day, twice
a day. And directed every move that was made. So a myopic view
of the decision by Hawai`i County law enforcement to cease arrest,
we will not properly serve this committee or the people of this
County. If you have the jurisdiction to widen your scope and to
look at the Governor and Attorney General and all of the law
enforcement facilities that...organizations that participated and
their unified command structure and how the decision was made,
then you will have a much better look at what happened. And I
also review a testifier said...we are in court, I was one of the
kupuna that was arrested, I am in what they call group 1. Our case
has been delayed a number of times. It was supposed to go to
court last Friday. It has been delayed until March because the
State was not actually able to come to produce the evidence of the
Governors proclamation closing the road so we're not even there
yet. But part of the issue is about what happened on that day on
July 15Th and how arrest were ceased. Who gave the command and
the confusion that ensued? So you know perhaps your resolution
is a little premature and you might want to wait until all of that is
25
revealed before you make a final decision on whether to move
forward. So mahalo. Thank you.
Mr. Robinson: Thank you. Thank you very much. Okay, that's all the statements
we have from the public. At this point, I'm going to call a short
recess so we can have a restroom break. And then we'll reconvene
and start with the approval of our regular session minutes from
December 11`h. So five minute recess.
11:19 a.m. to 11:30 a.m. The Board took a recess.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF DECEMBER 11, 2019.
(11:32 a.m.)
Mr. Robinson: Okay so we'll go back to our agenda and we have a lot of items in
our agenda so we'll start working through those. The first is the
approval of the regular session minutes of December 11, 2019.
Has my fellow Board members had a chance to review those?
Ms. Sumner-Mack: Yes.
Mr. Robinson: Is there a motion?
Mr. Wiseman: Yeah. I move we approve the minutes.
Mr. Heintz: Mr. Chairman. I have a couple of minor amendments.
Mr. Robinson: Okay, but I need a second first before.
Mr. Heintz: Second.
Mr. Robinson: Okay. So moved and seconded. Any further discussion? Mr.
Heintz?
Mr. Heintz: Just a couple of editorial changes. One on page 21. Line 11. The
third word on line 11 is someone and that should be somewhat.
And then the second change is on line 20 on the same page. The
second word is subjective and that should be objective.
Mr. Robinson: Oh, good catch.
Mr. Heintz: Thank you.
Mr. Robinson: You got that Maria? Any further changes?
Mr. Heintz: No, the rest of them are insignificant.
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Mr. Robinson: Okay. It has been moved and seconded. And we approve the
minutes with the noted two changes from Mr. Heintz. Any further
discussion? If not, all those in favor say aye. Contrary minded.
Alright, item approved.
Motion and Vote: Mr. Wiseman moved to approve the December 11, 2019 minutes. Mr.
Heintz seconded the motion. All members voted aye.
4. NEW BUSINESS
a. Petition 2019-02: Initial review of a petition alleging that a County officer or
employee and the Hawai'i County Board of Ethics is in violation of Sections 2-83
(a)(b)(c) (Fair treatment) of the Hawaii County Code. (11:32 a.m.)
Mr. Robinson: Now we'll go to new business and the first item on our agenda is
Petition 2019-02. And as I was on the Ethics Board at the time, I
am not able to participate and that... So I will turn the running of
that appeal to Judge Wiseman.
Mr. Wiseman: Thank you Mr. Chairman. Is the petitioner here? You wanna have
a seat up here?
Mr. Tucker: Good morning.
Mr. Wiseman: Yes, state your name please.
Mr. Tucker: Robert Tucker.
Mr. Wiseman: Okay. Alright and this is your petition and you claimed... The
petition is actually... Well first of all, we're here for an informal
hearing, however before we commence that proceeding, there's
some things we need to clarify here as far as jurisdiction and
subject matter. Your petition claims that the Ethics Commission
individually and en toto...and those are your words. First of all,
the Ethics Commission cannot be petitioned against. It's a Board
of the County and the Code of Ethics only allows petitions against
government employees...I'm sorry County employees appointed,
nominated and others. Not Boards or Commissions. So I'm gonna
strike the petition with respect to petitioning, claiming an
evaluation of your rights against the Ethics Commission.
Individually is proper, however former members of the
commission are not subject to your petition. Mr. Robinson was the
only member of that commission at that time. And also just
so...claiming the record...you used the term Ethics Commission.
Ethics Commission is what the State has. The State of Hawai'i has
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an Ethics Commission. We are the County Board of Ethics,
County of Hawaii. Secondly, the words en toto means as a whole.
And again, that goes back to the Ethics Commission which can't
be challenged. So you are claiming against the Board's attorney,
Mr. Yoshimoto who will not participate in this hearing. And Mr.
Robinson, the only former member that was present at the time of
your grievance. So we have two individuals, that you are claiming
that they violated somehow your rights.
Mr. Tucker: Excuse me, Your Honor.
Mr. Wiseman: Go ahead.
Mr. Tucker: And those individuals are Mr. Yoshimoto and Mr. Robinson?
Mr. Wiseman: Yes. And Mr. Yoshimoto will not participate in this proceeding.
We have another Corporation Counsel here...
Mr. Murai: Mr. Vice-Chair, excuse me. If I may. Just to clarify the record.
I'd like to make an appearance. I'm Deputy Corporation Counsel
Gary Murai from the County of Maui. Because Mr. Yoshimoto is
named as a respondent, I'll be serving as Special Deputy
Corporation Counsel to the Hawaii County Board of Ethics. And
for the record, I understand that the Chair Robinson is recusing
himself because he too is also a respondent to this matter and that
the balance of the Board consisting of yourself and Board
Members Sumner-Mack and Heintz do for a sufficient quorum to
hear the complaint.
Mr. Wiseman: Thank you Mr. Murai.
Mr. Murai: Thank you.
Mr. Wiseman: Alright. Continuing that. There's another matter of significance
that needs to be discussed and that's your position or contention is
that the Ethics Commission. Again in Mr. Yoshimoto violated
your procedural due process and civil rights. We do not determine
civil rights here. So that's off the petition. We are not considering
your civil rights.
Mr. Tucker: May I comment.
Mr. Wiseman: Go ahead.
Mr. Tucker: I'm referring to my civil rights as represented by the Ethics Code
itself. Which provides for certain rights and performance and
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procedure of the Ethics Commission. And in the violation of these
procedures. Specifically my right to cross examine in the
execution of the hearings for 2016-16 and 2016-17. I was denied
cross examination. Cross examination is specifically provided for
in the Ethics rules and procedures. And so it would seem to be
quite appropriate to operate an issue regarding rules and
procedures of the Ethics Commission or Board of Ethics as you
may state. Within the Ethics, Board of Ethics.
Mr. Wiseman: Well, I disagree with that position. The cross examination is
allowed specifically for formal hearings...not for informal
hearings.
Mr. Tucker: I'm discussing...
Mr. Wiseman: Neither is discovery.
Mr. Tucker: No but I'm talking about the formal hearing of my petitions 2016-
16 and 2016-17.
Mr. Wiseman: Yeah. They have been ruled on and we are not going to open the
door to the content of those hearing 2016, 2017. The burden of
proof is on you to somehow show that Mr. Yoshimoto and Mr.
Robinson violated the Ethics Code that caused you some
detrimental...some detriment.
Mr. Tucker: I understand the burdens on me, yes sir.
Mr. Wiseman: So...
Mr. Tucker: May I ask a couple of questions?
Mr. Wiseman: Go ahead.
Mr. Tucker: Now apparently it's been determined that this will be an informal
hearing?
Mr. Wiseman: Yes.
Mr. Tucker: Who made that determination?
Mr. Wiseman: I'm making it. I have the discretion.
Mr. Tucker: Okay. I'm just...for clarity. Now under the code also... I mean I
considered my filing of a complaint on August ls` to be a formal
act of making a complaint. And under the code, there's a term
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called respondent, who respond to my complaint. And those
respondents under the code are allowed 20 days to respond in
writing. I'm not aware of any responses having been made and
that would appear to be a violation of Ethics Code. So is there a
proper legal term for respondents who do not respond? Cause the
code says failure to respond is a default. That's one question.
Mr. Wiseman: Well in certain proceedings, I'd have to defer to legal counsel on
that matter. Well let's put in a very brief summary what your
petition involves. It involves going back...you as a contractor on
the island for many years. Is that right?
Mr. Tucker: As a vendor.
Mr. Wiseman: As a vendor. And you had problems with the government agencies
in charge of issuing permits and clearances. In 2016, you filed a
complaint based on that.
Mr. Tucker: No.
Mr. Wiseman: Wasn't that the basis of your complaint in 2016?
Mr. Tucker: It did not concern any perm...concern any permits and application
whatsoever.
Mr. Wiseman: Alright, but it was your treatment by an agency that deals with
your...
Mr. Tucker: It was treatment of me and the general public by the agency
misrepresenting the code and making statements to with the effect
of the code was on property owners that was untrue.
Mr. Wiseman: In the 2016 petition was ruled on and then you filed one in 2017,
along within the same general area.
Mr. Tucker: No.
Mr. Wiseman: What was that one?
Mr. Tucker: The petition in the execution of the hearing for the petition in 2016
and 2016-16 and 2016-17. I had my claims for the miss-
performance of building officials as I claim. And they...and I got
up and I sat here and I made my presentation.
Mr. Wiseman: Right.
30
Mr. Tucker: Subsequent to that, the respondents sat down and they made their
presentation. Now the next moment that happened was the
Chairwoman said, "Are there any questions?" At that point I stood
up and I said, "Yes, I do have questions." And it was in my
intention to challenge and cross examine the statements made by
the County officials. Which I had evidence of, and I could dispute.
I was told that my time to ask questions was in my opening
statement and I was not allowed to cross examine. Now cross
examination both under Federal, State and County code is
specifically allowed. And I felt that I was seriously...this act...in
disallowing my cross examination was a very prejudicial to my
case.
Mr. Wiseman: Well, again Mr. Tucker, it's a...the Board's position and the
opinion of the Board that the Code of Ethics...although it doesn't
state...it doesn't say you cannot cross exam under informal
hearings. It specifically states it's available in a formal hearing.
Not in a...
Mr. Tucker: I'm referring to a formal hearing. 2016-16 and 2016-17 were
formal hearings combined because of the relationship. It was a
formal hearing. It was not an informal hearing. I was denied cross
examination and my case was prejudiced by that fact. And it cast
doubts upon the authenticity of the decision it was made in that
case.
Mr. Murai: Mr. Chair may I?
Mr. Wiseman: Yes. Please.
Mr. Murai: Of course I wasn't here when Mr. Tucker's initial complaints were
held, so I cannot based on my own memory tell you whether it was
a formal or informal hearing. I do want to point out however that
under the Hawai'i County Board of Ethics' rules, a formal hearing
must necessarily follow an informal hearing. And as I understand
your rules, will only be set if the respondent in to an informal
hearing, you know continues to violate the Code of Ethics or does
not conform his or her behavior to the Code of Ethics if there was
an underlying finding that there was any kind of violation.
Mr. Wiseman: Thank you Mr. Murai.
Mr. Murai: So I believe you are correct in that...cross examination is
specifically provided for in a formal hearing. But a formal hearing
may not be set from the get go. It can only be set by the Board
after the rendering of an informal advisory opinion.
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Mr. Wiseman: So I meant that is my understanding. So Mr. Tucker, at this time,
the gist of your complaint or what you must prove is that somehow
you were treated...that you were not treated fairly and impartially
by Mr. Robinson or Mr. Yoshimoto.
Mr. Tucker: Well, essentially my response to that would be yes. Except I don't
see how Mr. Robinson himself would be singled out in this
instance.
Mr. Wiseman: Because the code does not allow former members of this
commission to be subject to your petition.
Mr. Tucker: And is he the only informal member of the commission?
Mr. Wiseman: No, he's the only one that was here at that time.
Mr. Tucker: And what about the ones that were here at that time?
Mr. Wiseman: Their terms have expired. They are no longer commissioners.
Mr. Tucker: I see. Now I had anticipated, quite frankly, that on this August 1
petition I filed that we're responding to now. That in the course of
this, I would get responses from the respondents which would give
me some latitude in deciding who I might feel was more culpable
than others in this complaint. And I, in not getting a response from
the respondents as code requires, I feel like I've been denied the
opportunity to withdraw some portions of my complaint from
individuals that were concerned. So we're dealing with some
procedural matters here and procedural justice where my complaint
is founded on. And I think that the damages that I have incurred
by acts of the County, in that I have disputed in the past and the
prejudicial manner in which I was not allowed to press my case on
record, in transcript, was followed up. Now I would like to ask
Mr. Murai or the Board itself if you could please cite the section of
the code that covers informal hearings. Cause I've never found the
words informal hearing anywhere in the code or in the procedures.
Mr. Wiseman: Well it is there. I'm familiar with it and will provide it in...1 don't
intend to go into the code sections at this time now. At this time
we're not here to ask your questions about specifics and the code.
We're here to see how you were treated...not treated fairly or
impartially in those hearings by Mr. Robinson or Mr. Yoshimoto.
I'm keeping it to that narrow window because that's where we are.
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Mr. Tucker: Following your guidance sir. I'd understand then that if this is an
initial hearing as we're covering these issues.
Mr. Wiseman: It's an informal hearing.
Mr. Tucker: This is an informal hearing. And I will await the citation at some
point. But we...this could lead to a formal hearing on the issues
with Mr. Yoshimoto as regards to my lack...
Mr. Wiseman: It would lead to a formal hearing only in the event that the
informal advisory opinion... And Mr. Murai, correct me if I stand
to be corrected on this. Only if the informal advisory opinion is
not followed. In other words, if we found someone... Well in this
case, Mr. Yoshimoto or Mr. Robinson, somehow that you were
deprived of...you were not treated fairly or impartially during your
previous hearings. If we found that and they did not follow any
advice or any guidance in that opinion, then you'd be entitled to a
formal hearing. Mr. Murai? Can you clarify?
Mr. Murai: Mr. Chair, that's correct. Under Section 2-87 of the Hawai`i
County Code. Under the heading formal opinions provides if the
officer or employee fails to comply with the informal advisory
opinion, the board may in its discretion institute proceedings for a
formal opinion. So what you'd have to have is number 1...an
advisory opinion directing the County officer or employee to do or
not do something. And if the County officer or employee fails to
comply with the Board's instructions or direction, then the Board
in its discretion may take the matter to a formal hearing.
Mr. Wiseman: Thank you. And you know the Board of Ethics is not an
enforcement agency...it's not a...we don't make declarations of
enforcement. We just...it's more or less...Board of Ethics is to
provide guidance or education on certain ethical issues.
Mr. Tucker: I understand. I would hope...it would have been my hope and this
County could surely use you know an ombudsman office in this
County to resolve issues that come up. Such as the ones that I've
had. Lacking that, when I was faced with the problems I was
presented by the building department. I took the next most natural
step and I wrote to the director of Public Works, seeking a meeting
to see if we can resolve these issues. Now in my seeking that
meeting, I was ignored and I was stonewalled and I was
unresponded to. Following months of no response from the
County, Department of Public Works, I felt I had little or no choice
except to go to...turn to the Board of Ethics to try and find some
resolution. Now I was ultimately able to get some resolution to the
33
issues but it took a year and a half, in which customers of mine
were being deflected and then misinformed about what the codes
were. I now have on my website a letter signed by the Corporation
Counsel, it's deputy attorney that cites what the true facts of the
code were. And have completely, is in conflict with all the written
correspondence I have for these building officials. Now following
my hearing which was...in which my complaint was dismissed, I
did approach Mr. Yoshimoto on the subject of my lack of cross
examination and in that personal meeting with him and another
attorney of Corporation Counsel's office, he suggested that it
would be best to have an informal hearing with the Board of
Ethics. Which we then scheduled without a written complaint on
file and we had about a two hour hearing here in this room
discussing the very issues that we're discussing now. Now in that
hearing, having expressed my opinions and getting what I felt to be
at the time a lot of sympathy from the Board over some of the
issues I was raising. I was told that this is a very opportune time
for you to be talking to us Mr. Tucker. They said we are in the
process of making some changes and edits to the...ethics code and
if we can find ourselves a path by which we can make it more
equitable you know for the public in their dealing with the Ethics
Code and make some adjustments then would that be satisfactory
with you. And I said well of course, I'm not here just trying to
make trouble for the rest of my life. I have other things to do. But
if we can make some changes that would guarantee that people in
my position would be allowed cross examination...in these formal
hearings. And if we could make some changes in the code that
would make it possible to enjoy discovery, which is provided for in
State code and Federal code. But apparently not in the County.
And if we could address the issue that there's nothing in the code
whatsoever, in the Ethics Code of this County, that requires public
employees or officials to be truthful and accurate in the statements
they make to the public. I got a lot of, quite frankly, very happy
smiles and talk back in response from the Ethics Board, here in this
room as we sat there. Now subsequent to that, with my
councilwoman in my district, we put a bill in to the County
Council asking that a language be amended to the Ethics Code
which would require public employees and officials to be
accurate...truthful and accurate in their statements to the public
regarding facts of law.
Mr. Wiseman: I do recall that when we were going over the code revisions. I
don't know of the status of that now.
Mr. Tucker: Right. Now this, talking with my councilwoman, this devolved to
the point and Council that she came back to me and said well...we
34
want to edit this...they want to make the code regarding truthful
and accuracy in public officials to be...they should be truthful and
accurate to best of their ability. Now from my point of view as a
tax payer, I had to respond to my councilwoman and say...well I'd
have to oppose that amendment myself,just from where I sit. I
don't have a vote but I would oppose it. When I get a tax bill, I'm
not asked to pay my taxes to the best of my ability. When I'm
filling out a building permit form and signing under penalty of
perjury, that the facts in these applications are true and accurate.
I'm not being asked to sign these to the best of my ability. But
when I'm making decisions for my family and my business and my
community about how I invest my time and money in this island. I
have to rely on what I'm told by the building officials. And when
they're giving me and my customers false and inaccurate
information, it has a serious negative effect. And its had an effect
on my family...with daughters in college. And I'm trying to make
a living and I'm running up against people making up code out of
the thin air.
Mr. Wiseman: And of course we don't support that and we're...
Mr. Tucker: Well by my attempting to challenge that fact in the hearings on
2016-16 and 2016-17, I was prevented in effectively challenging
that fact by my lack of cross examination. Which is why we are
here right now following a two hour of informal on this subject
that we had a year or so ago. Now when I left that hearing and
when the Board of Ethics said that they would be making sincere
efforts to see this code change, they got pretty limp wristed support
at the Council. They started going...well you know the best of
their ability...they'll tell the truth to the best of their ability. Now I
don't know any public venue,judicial venue in which testifying to
the best of...or being truthful to the best of their ability, passes
muster.
Mr. Wiseman: Well, no. Given testimony in any judicial venue requires taking
the oath.
Mr. Tucker: I understand. But there's nothing in the code that requires...
Mr. Wiseman: The oath was the first public law of the United States.
Mr. Tucker: Excuse me sir?
Mr. Wiseman: The oath was the first public law in the United States. In point of
trivia.
35
Mr. Tucker: And there's good reason.
Mr. Wiseman: By the Continental Congress. In any event, Mr. Tucker, I do recall
the issue of...and statement being accurate and truthful. I do recall
this Board did spend considerable time. And that was one of the
issues in the considerable time spent on revising. Putting out
proposed revisions to the code. I do not know the status, but I
would definitely look into it with my colleagues.
Mr. Tucker: Well may I ask further question.
Mr. Wiseman: Yes, go ahead.
Mr. Tucker: In the course of my application from August 1", there have been a
number of events which have taken place. Which I have found
rather questionable and interesting. Now one of them involves
Resolution 258, which was approached to the Council in order to
obtain funds by which Mr. Murai was hired to come here from
Maui because according to the statement made by Joe
Kamelamela, the head of the Corporation Counsel, they were
declaring that broad and general conflict of interest. You
know...because of my listing of Mr. Yoshimoto as a respondent in
my complaint, I assume. Now, under the code, Section 9, very
brief if you wanted to review it. Anybody declaring a conflict of
interest on any issue before the County, on any level, is required to
submit a letter explaining the conflict of interest, in submitting it
both to the Board of Ethics and to the Council. No I don't know
how many members of the Corporation Counsel were being
covered by this broad and general declaration of conflict of
interest. I suspect their might be more than ten. Might be less than
20, I don't know.
Mr. Wiseman: Well, that's not an issue that's before the Board at this time.
Mr. Tucker: Well it is a public record. Can I ask...
Mr. Wiseman: Since you put it on record, I have to...discuss it in executive
session and look into it.
Mr. Tucker: Well should I make my request for those letters of conflict of
interest from the County Clerk then and not bother you with it?
Mr. Wiseman: I'm not going to give you any advice on what you should do. But
you know, anything else beside that. Cause that's not an issue
before us.
36
Mr. Tucker: Okay. Well from what I understand from Mr. Murai's reading of
the code and as far as informal hearings go, it would be my
position to your Board to consider that we have already had an
informal hearing on this subject and it's specifically on this
subject. And that in follow up, my formal complaint should be
followed up as a formal complaint to continue against at least Mr.
Yoshimoto and perhaps Mr. Robinson. If I had, had the benefit of
a written response from a respondent, I might have the opportunity
to consider letting Mr. Robinson not be...
Mr. Wiseman: Mr. Murai?
Mr. Murai: Mr. Vice-Chair. Mr. Tucker, according to my files, Mr.
Yoshimoto did file a written response. I believe in August 28.
Mr. Tucker: And am I privy to that?
Mr. Murai: You should have been provided a copy with it.
Mr. Tucker: I have not.
Mr. Murai: If you were not, than I would suggest Mr. Chair that we take a
recess, provide Mr. Tucker a copy of that response and give him an
opportunity to review that. I don't know when this Board would
normally take a lunch break, but I... I would suggest that, is that if
Mr. Tucker has not received it, that he receive a copy and maybe
review it over the lunch hour.
Mr. Wiseman: We don't take an hour for lunch and...
Mr. Murai: Or however much...
Mr. Wiseman: It is our lunch time but we have a very full agenda today. We have
numerous items to review and also there's people waiting on the
agenda.
Mr. Murai: Okay.
Mr. Wiseman: We'll provide Mr. Tucker by the letter by all means and you can
review it and we'll perhaps put this on the back of the calendar or
defer to it to another reschedule for another hearing. But again.
Notwithstanding what the response is...I'm not sure what you are
looking for...what you are seeking from this Board with those two
narrow issues against Mr. Yoshimoto or Mr. Robinson...you know
with... Are you looking for a declaration that you...that they did
not provide you with fair and impartial procedures? Cause that's
37
the only thing that narrows down from your complaint...from your
petition after I...dismiss the other...
Mr. Tucker: Shall I respond?
Mr. Wiseman: Yes, please.
Mr. Tucker: Well I think my goal here...one of my underlying goals...to be
frankly honest with you. And I was an old Eagle Scout, I don't try
to be funny and make things up but. One of my overriding goals
here...underlying goal...is to determine whether the code as it
exists...County code be it Ethics code or building code or planning
code or any code that it is not a buffet from which people get to
pick and choose what they want to enforce or decide which are
distasteful and they don't want to enforce. So if I'm a citizen and
I'm trying to deal with my government here, which I partially fund
with my taxes, not that it's a big deal, but I want to know that
when I walk into a department, I'm going to be hearing...getting
facts from people. And I'm not going to treated differently than
others are. I want to know that if I file a complaint against
something, that it's going to heard in a reasonable manner. I want
to know that when I go into that hearing and I'm not going to be
denied cross examination and a true determination of the facts of
the issue. Which I feel, I was certainly denied. If you want to
review the transcript, going back to those days, I think you would
have to...
Mr. Wiseman: I have.
Mr. Tucker: Oh you have? Very good.
Mr. Wiseman: I'm going through it.
Mr. Tucker: So, then you're aware of the fact that I...I had questions and I was
not allowed to ask them...I assume. But I don't want to hear...
I'm not here to question you but my underlying thing...is to try to
overcome the fact that as a citizen of this County, I am not treated
equally as everybody else and many others are not as well. That
we're dealing with a rather capricious form of government here.
That treats the code like a buffet, as I say. They can pick the tasty
things they want and enforce them when they want and then they
don't... If they don't want to hear about the, oh, they don't have to
respond. Or they've filing letters of conflict of interest don't really
matter. If the code is the code, then the code is...it should be equal
code. And 5.3.1 should be the same as 10.7.6. If you violate the
38
code, you violate the code. It's not a question of Manini codes or
not.
Mr. Wiseman: From what I...my proposal will be...I'm gonna let my colleagues
ask any questions and comments. But I would... What I see is
a...what I would propose as a possible conclusion to this hearing is
that you have made the Board aware through your previous
petitions in this one of the awareness of what you just stated...the
fair and impartial treatment. When you go in before any
government agency and we would writing an informal advisory
opinion and it would be matters of discussion within that. I don't
know where else we can go however. Nan, did you have any
questions?
Ms. Sumner-Mack: Yes, I just... I fairness to Mr. Tucker, I think the Section 2.86 has
about informal advisory opinions. But I'm wondering how...if
you didn't get the response...how long would it take him to review
the response? Is it a long response? We don't have to take an hour
just for him to read the response if he...if it's a short response.
Mr. Wiseman: It's about seven, eight pages.
Mr. Tucker: Well, if I may?
Ms. Sumner-Mack: Excuse me?
Mr. Tucker: If I may.
Mr. Wiseman: Go ahead.
Mr. Tucker: The lack of access to this response affects my performance here, as
I sit here,just the same as my lack of cross exam affected my
performance in the hearings on 2016-16 and 2016-17. It did not
affect the informal hearing we had with the Board in which we
discussed these issues. But these lacks of responses wouldn't
allow me...I am not in a huge hurry. It's not... If we were to
continue this...that would be fine with me.
Mr. Wiseman: Okay. I think that may be a most feasible.
Mr. Murai: Mr. Chair, if I may. I'm not totally conversant in the procedure for
this Board. As you know I'm here maybe once a year, every
couple of years. But I understand from the Board's Secretary that
typically...you know...and I understand that there's a rule that
makes all documents or communications that the Board receives
confidential until it is received by the Board in an open session.
39
Mr. Wiseman: That's true.
Mr. Mural: And that's why, you know, it may seem to the Petitioner to be
unfair but then is the rules.
Mr. Wiseman: Yeah.
Mr. Mural: So I have with me, a copy of the memo and it even is
entitled...there's a little note at the top...R. Tucker copy. Mr.
Yoshimoto's response is about five pages long. The rest of it is a
transcript of the proceeding which I presume...
Mr. Wiseman: I have seven pages.
Mr. Murai: Okay. There abouts. So if...
Mr. Wiseman: I overlook that fact, that we don't release documents such as that
until the hearing to maintain the confidentiality...
Mr. Tucker: May I comment on that?
Mr. Wiseman: Yes.
Mr. Tucker: This issue came up in the 2016 complaints. Now as I understand,
there was not confidentiality as my complaint was forwarded to the
respondents. And that they were privy to who was complaining
against them and made their written responses back. Now later on
when J told me...well we have a confidentiality issue and we
cannot release the responses to you prior to the hearing...I said
well why can't you just... And if you're gonna...you say you
redact things...well why don't you just redact? Now there's no
problem with redacting the confidential issues. All I'm interested
in are the legal issues. But there seems to be a confidentiality
seems to be an issue by which discovery is denied and it leaves a
person like myself showing up hearing after weeks or months pass
by since August 1, in this example, and I'm left to try and struggle
with what the legal response is, you know in a short...to
short...amount of time.
Mr. Wiseman: Because the letter...the attachments...it's a thick file. It would
take some time to review it so.
Mr. Tucker: Yeah, so I would be content to postpone this and continue this
hearing to another day and give me time to respond. And I'm not
trying to be difficult.
40
Mr. Wiseman: No, we don't see that. Okay for good cause, we can continue this
matter.
Mr. Yoshimoto: Mr. Chairman, does the Board want to hear from me today? Since
I'm here.
Mr. Wiseman: Okay, very well. Let's do that. But again, he hasn't seen your...
Mr. Yoshimoto: Oh, okay. I just want to clarify a few things.
Mr. Wiseman: Okay.
Mr. Yoshimoto: So for the record, on August 28, 2019, I submitted a response to
the petition. So that's within the time frame that's provided for by
our Board rules. In a nutshell, what the letter contains is...the
relevant law...the relevant rules applicable to the question. And
the main issue seems to be the right of cross examination, right?
So for the record, if you look at the minutes, you'll see that the
hearing that was held on the petition 2016 and 2017 was an
informal hearing and our Board rules specifically provide for a
cross examination as a right in a formal hearing. So that's the
distinction there. In terms of the right to cross examination,
hypothetically speaking, if someone wanted to request a formal
hearing, someone could if they were not satisfied with an informal
hearing. So that's still hypothetically is something that could be
done. But in that sense here, you know we are here to talk about
the allegations in the petition and it's my position and I am
confident that the record reflects that. Is that basically we had an
informal hearing, there was an extensive question and answer
session by the Board because in an informal hearings, the Board
directs the discussion. The Board asks the questions. You'll also
see in the transcript that there were some question that the
petitioner wanted to ask and did so through the Board Members.
Now granted, it wasn't the so-called right of cross examination but
again, that right exists in formal hearings and that hearing at that
time was not a formal hearing. That was an informal hearing.
Let's see, with respect to the Board Rules as far as confidentiality,
as the Chair and the Board Members are aware, documents that are
presented to the Board are confidential until presented to the Board
in an open hearing. Presented and received. So normally, what the
Board will do is they'll basically acknowledge we have
communication ABC, XYZ. We are going to accept this and the
Board's going to review it. And then it can be disseminated. Mr.
Tucker is correct, that at the time of his petitions 2016 and 2017,
that same procedure was followed. He was treated fairly and
41
impartially because that's what we do with all of our informal
hearings. That's our procedure. That's our rules. Now, in terms
of following up on his concerns, subsequent to his 2016, 2017
petitions, we did have a meeting. I thought it was a productive
meeting and the Board did institute some procedural changes in the
way in which we notify petitioners and respondents. So those
positive changes were made. In addition, the Board will be
amending its rules to basically refine it because as you can tell this
was from, I don't know, 20 some odd years ago. And the Board is
basically waiting for the Charter Commissions issues, as far as,
what changes... Whether the vote is gonna approve these
proposed changes, so once that issue is decided...whether the voter
say yes or no...then the Board of Ethics will proceed to update it's
rules. While either to conform with the changes in the charter or
if its not approved, then to just basically to look at those changes
that the Board feels necessary and appropriate to move...to make
sure our rules are current basically. Cause as we all know, notices
change, technology has changed, so it's a lot of things that we need
to update as well as the fine provisions that was passed back in
2008. So this is a lot of things on board. But I'm probably
digressing. But anyway so I wanted to be clear for that record. So
if Mr. Tucker wants a continuance, I am fine with that. The record
is clear, it's there, it's not going to change.
Mr. Wiseman: Mr. Yoshimoto. It is my recollection that we spent many hours on
revising our code suggestions for revisions. And what Mr.
Tucker's concern of our employees making accurate and truthful
statements. And that was a main item in our discussion, as I recall.
Mr. Yoshimoto: Okay.
Mr. Wiseman: Did that get finalized in a revised draft?
Mr. Yoshimoto: I'm not sure if that's in our proposal or if that was in
Councilmember Ohara's proposal. I thought it was in...was it
Eileen's proposal. Was...
Mr. Robinson: Eileen had a bill.
Mr. Yoshimoto: She had a bill which I think the Council modified and so that's my
recollection. I can check our records to see what the...
Mr. Wiseman: Okay. Mr. Tucker. You heard Mr. Yoshimoto's statement and
you will get his written statement with the exhibits. And...
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Mr. Heintz: Mr. Chairman. I have a question. At any time did Mr. Tucker
or... Was this ever a formal hearing? Did it ever move to a formal
hearing? So this has always been an informal hearing?
Mr. Wiseman: Yeah.
Mr. Tucker: I was under the impression that our hearing for 2016-16 and 2016-
17 was a formal hearing. Nobody ever informed me about
anything about informal hearings preceding formal hearings and I
would appreciate [inaudible] to get this citation as it defines
informal hearings and however it applies to informal hearings
cause I haven't found it in the code. And maybe I missed it but,
somebody point...find it and point it out to me please. Mr. Murai,
perhaps, you're hired for research purposes so I would appreciate
that.
Mr. Heintz: Yeah, under the standards section, it distinguishes between the
two. And the cross examination is only applicable to formal
hearings.
Mr. Tucker: Well cross examine...excuse me...
Mr. Heintz: This was never at the level of a formal hearing then I don't
understand that compliant.
Mr. Tucker: Well, all I get is a letter that says...doesn't say an informal hearing
has been schedule for January 29`h. I get a...a hearing has been
scheduled for January 29th and the difference between the two has
not been made clear to me in the last three and a half years of
process I've been on. So I'll admit, I'm on a learning curve all
along here. But I'm also on the purpose of trying to be a little bit
of teaching curve because there's issues going on here that affect
people in their lives in a negative way. And I would like to see
them not continue rampantly into the future.
Mr. Wiseman: Okay.
Mr. Heintz: I guess the other... Maybe Mr. Yoshimoto can address this. Isn't
it the case that we always ask people when they make a petition,
whether they're requesting a formal or informal hearing? Or is
that the same as asking whether the hearing is open or closed?
Mr. Tucker: Are you asking me?
Mr. Heintz: I'm asking J, Mr. Yoshimoto.
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Mr. Yoshimoto: Yes. So the normal procedure and it was also done in the 2016
petition. Is when we initially appeared, that's the initial hearing.
Mr. Heintz: Right.
Mr. Yoshimoto: And then many times with the parties consent, we'll just proceed
into the informal hearing. If the Board has enough information to
move forward right? If it doesn't have enough information, and
you remember other petitions we had last year, where we had to
continue it because of the reasons that Mr. Tucker had pointed out
that, that the respondents just got the response from... Excuse me
the petitioners got the response at the day of the hearing. But
that's our rules. That's what we follow. So, that's the normal
process, that if the Board decides at the initial hearing to move
forward with everyone willing to move forward. In other words,
there is no request for a continuance, no request for a formal
hearing, then that's normal procedure for that. And that was done
in 2016...it's on page 18.
Mr. Heintz: So the point is that initially, the question was put...do you want an
informal or formal hearing?
Mr. Yoshimoto: In this particular matter, it was not posed in that specific words but
you can look at the records. I don't want to paraphrase what the
record says but you can look at the transcript right? And so...
Again, normally...
Mr. Heintz: Thank you.
Mr. Yoshimoto: Yeah there's a request for a formal hearing, then we adhere to the
formal rules of discovery...and so it's all in the rules. I mean I can
go through it but...
Mr. Wiseman: You will be provided with his response with the exhibits. We can
make a...we can schedule a continuance and then you can just
notify the Board, based on what you receive...review. If you still
intend to pursue it or rather if you would take it off calendar to
just...not go any focus. Again, I don't, I think your concerns are...
Mr. Tucker: My concerns are partially addressed in new business item a.2. The
first rumor of an informal hearing which I got from nobody except
for Mr. Murai. Corporation Counsel's Office and the
commission's office was stonewalling me for a month. I did not
even know that the September 11`h hearing date had been changed
until September 10`h. That's how little communication I was
getting from these departments. But Mr. Murai informed me that
44
he didn't think respondents had to respond in writing because it
was an informal hearing. So I immediately filed a...an objection
to an informal hearing in my letter of September 23, 2019. Which
I'm assuming you've all seen. It's the next item on your agenda.
Mr. Wiseman: Yes, I reviewed that.
Mr. Tucker: Yeah. Now and I gave two legitimate reasons I felt for why I an
informal hearing would inappropriate today. I got no response to
that. So I sit here right now trying to understand where
we're...how we're proceeding.
Mr. Murai: Mr. Vice-Chair, if I may?
Mr. Wiseman: Yes.
Mr. Murai: You know, as I understand the Board's rules. I don't believe the
Board has a discretion to... I don't know that the Board can waive
an informal hearing and go straight to a formal hearing. It appears
to me that the Board's own rules require that. Again, you know
my understanding of the purpose of having a Board of Ethics and a
Code of Ethics is for the...so that the Board may educate and guide
County officers and employees in their conduct. Therefore we
have this informal advisory opinion structure so that County
officers or employees may be guided in their conduct. And only if
they refuse to conform their behavior, does the Board have the
discretion to set a formal hearing. Wherein formality such
as...you know....witness and exhibit lists, examination, cross
examination, pre-hearing conferences are provided for. In other
words a more court-like setting. These are meant... And this is
just my opinion but the reason why I believe that cross
examination is not allowed or provided for rather in an informal
hearing setting is because each side will make their presentation to
the Board and the Board would choose whether to ask follow up
questions of the other party. So in a sense, although not directly
considered cross-examination. What the informal hearing is, is
also referred to you know elsewhere in the...in your rules is...this
is also called an investigation. So it is the Boards opportunity to
hear what the issues are and follow up with asking whatever
questions of the opposing party they feel is appropriate. So I can
appreciate that Mr. Tucker feels that he was denied the right to
cross examine. But and I again I'm not familiar with what
happened in 2016. But that would have been the Board's
opportunity to pose questions to the planning department based on
the issues that the complainant may have raised at the time.
45
Mr. Wiseman: Thank you Mr. Murai. Mr. Tucker.
Mr. Tucker: Yes sir?
Mr. Wiseman: Do you want a continuance?
Mr. Tucker: I would agree to a continuance, yes sir.
Mr. Wiseman: Alright. And then again after you review of Mr. Yoshimoto's
response, if you feel that there's no need to pursue this further in
view of the fact that you have made your petition and previous
petitions have made the Board very aware of your concerns. And
again they were taken up in the proposed revision of the County
Code of Ethics that we have or the Board of the procedural...the
Board's procedural rules. And again I need to see where that is,
cause like I said, I know we spent a lot of time on that as far as
government agent's employees...make it fair and truthful and
accurate statements when they represent something.
Mr. Tucker: I think it's vital.
Mr. Wiseman: Yeah. Of course. And we did spend a lot of time in that and so we
will review the status in that. And perhaps that will be in our
informal advisory opinion as well.
Mr. Tucker: Could I make a request?
Mr. Wiseman: Sure.
Mr. Tucker: I would like to make a request that Mr. Yoshimoto could point out
to me the improvements that have been suggested in the codes
since our hearing. When we started out with a pre...pre-meeting
that I thought was productive as well. We had a long and in-depth
informal hearing on this. Which is why I'm a little puzzled about
why we're not formal at this point but...nevertheless if you could
inform me about those points that you feel alleviated the concerns
that I had presented. That would be great. I would also like to get
a citation on the informal hearing status from the Code that I've
been unable to find myself. If somebody...if Mr. Murai could
send me that citation. I'd be happy to take a look at it.
Mr. Wiseman: Okay so...
Ms. Sumner-Mack: Is it appropriate to move to...give him a continuance and move
on?
46
Mr. Wiseman: Yeah.
Ms. Sumner-Mack: I so move that we continue this case another time and subject to
further revision if necessary. But to give you continuance right
now.
Mr. Heintz: Second.
Mr. Wiseman: Second. Our motion has been make to continue this matter for an
informal hearing. All in favor say aye? All opposed? Alright we
will continue this matter to...could I have a date?
Ms. Pagala: At the moment we have February 12 but our Chair is not available
that day. So I'm not sure if we have quorum. There's an
alternative of February 28 but the meeting would be at the Puna
Conference Room.
Mr. Wiseman: Puna Conference Room? Where is that? Over there? Alright. So
February 28?
Ms. Pagala: Yes.
Mr. Wiseman: Okay. February 12th is President Lincoln's birthday. Even though
they move it around to make it a three, four day weekends. So Mr.
Tucker we'll continue this matter to February 28`h. In the
meantime you will get a copy of Mr. Yoshimoto's response and
perhaps you can provide him the Code section he was curious
about.
Mr. Yoshimoto: I can provide him the Code section. Also to clarify for the record,
the improvements were made in the procedures in how we notify
the respondents. The Code provisions have not been implemented
yet because we're waiting for the Charter provisions to move
through. So the Board has it's draft rules that are still in draft form
so I'm not able to share that because that's still in the deliberative
process as far as the Board. So I show him how our letters have
been improved in notifying the parties. But I can't show him the
proposals cause that's attorney-client privilege at least at this point
so.
Mr. Wiseman: Right. Okay. Thank you Mr. Tucker.
Mr. Robinson: At this time we always use our lunch period. We have 55 financial
disclosures to review today. So if it's okay with my fellow Board
members, I propose that we take a...say 45 minute lunch period
and we can eat lunch and review all of those financial disclosures
47
at the same time. And then we will reconvene at 1:15p.m. Is that
okay?
Mr. Wiseman: Yeah. It's fine with me.
Mr. Robinson: Meeting adjourned until 1:15p.m. I guess we can consider that
executive session.
Motion and Vote: Ms. Sumner-Mack moved to continue informal hearing to next meeting.
Mr. Heintz seconded the motion. All members voted aye.
12:25 p.m. to 1:00 p.m. The Board took a recess for lunch
1:00 p.m. The Board moved into executive session.
1:24 p.m. The Board returned into regular session.
b. Petition 2019-05: Request for an informal advisory opinion from a former
County officer or employee to determine compliance with Section 2-91.2 (Post-
employment) of the Hawaii County Code. (Closed hearing requested) (1:24 p.m.)
Mr. Robinson: We are reconvening. So if we conduct a closed hearing then
everyone has to leave. Sorry, you folks came back and now you
have to...sorry. E kala mai. So come forward Mr. Jung. And we
will ask everyone to vacate. Unless you want to have an open
hearing. If you have an open hearing we just conduct like...
1:24 p.m. The Board moved into closed hearing.
2:57p.m. The Board returned into regular session
Mr. Robinson: Okay we'll go back to open meeting. And at this point is there a
motion regarding the closed hearing?
Ms. Sumner-Mack: I move that we go into a regular public session...and terminate the
closed session.
Mr. Robinson: Yeah. But I mean...we needed to accept the request to have a
closed session and vote on it as a Board.
Ms. Sumner-Mack: I move that we accept the request for a closed session with that
petition.
48
Mr. Robinson: Okay. Is there a second?
Mr. Wiseman: Second.
Mr. Robinson: Alright, it has been moved and seconded. All those in favor say
aye.
Mr. Murai: And for the sake of clarity, the reason for holding a closed meeting
was because there were sensitive matters being discussed that may
affect the other matters in litigation.
Mr. Robinson: Other matters in litigation, correct. Sorry about that.
Mr. Robinson: So we are in open session now. The next item on our...unfinished
business.
Mr. Murai: I'm sorry. And with that Mr. Chair, I will excuse myself and allow
Mr. Yoshimoto to step back in.
Mr. Robinson: Thank you very much Mr. Murai. It's always a pleasure to see
you.
Mr. Heintz: Thank you Gary.
5. UNFINISHED BUSINESS
a. Petition 2019-04: Review draft informal advisory opinion regarding a petition
from a former County officer or employee to determine compliance with Section
2-91.2(b) (Post-employment) of the Hawaii County Code because his current
employer wants to include him in projects involving the Hawaii County
Wastewater Division, his former employer. (3:00 p.m.)
Mr. Robinson: Okay the next item on our agenda is Petition 2019-04. Has
everyone had a chance to review that Informal Advisory Opinion?
We had previously voted on this. We just need to put it in the
final.
Mr. Wiseman: I make a motion, the opinion be accepted.
Mr. Robinson: Is there a second?
Mr. Heintz: Second.
49
Mr. Robinson: So moved and seconded. All those in favor say aye. Contrary
minded.
Motion and Vote: Mr. Wiseman moved to accept the Informal Advisory Opinion. Mr.
Heintz seconded the motion. All members voted aye.
b. Petition 2019-07: Review draft informal advisory opinion regarding a petition
from a County officer or employee to determine whether there is a conflict of
interest under Section 2-84 of the Hawaii County Code for his office to
prosecute cases involving a protest site on Hawaii Island. (3:01 p.m.)
Mr. Robinson: Alright. Next on the agenda, 2019-07. And that's in regards to
Mr. Roth. Has everyone had a chance to review that one?
Mr. Wiseman: I reviewed. I have a couple comments but I'd like to...I need to
refresh myself. I have a couple of minor comments on it.
Mr. Robinson: Okay.
Mr. Wiseman: Changes I would like to make.
Mr. Robinson: Okay. Go ahead. I think and advise me if I'm correct, J. We need
to have a motion to accept and a second before we go to
comments. Correct?
Mr. Yoshimoto: Yes.
Mr. Robinson: Is there a motion to accept the Informal Advisory Opinion as
written.
Mr. Heintz: So moved.
Mr. Robinson: Is there a second?
Ms. Sumner-Mack: Second.
Mr. Robinson: Okay, it's been moved and seconded. Discussion?
Mr. Heintz: Mr. Chairman, I have a concurring opinion that I... And I guess
you could also call it dissenting in some respects...that I'd like to
have appended to this Informal Advisory Opinion. I have copies
of that for the Board.
Mr. Robinson: Oh. Okay. J, is it possible for us to accept this Informal Advisory
Opinion and then have his separate... Would you call it...?
50
Mr. Heintz: I guess it's a concurring...
Mr. Wiseman: It would be a concurrence where...in general he's going along with
it but...
Mr. Heintz: I'm voting for the motion but I am explaining some objections to
parts of it or a lack. I'm gonna let the language stand. I just want
to add my portion.
Mr. Robinson: I know we've had that before.
Mr. Heintz: I was told at the last meeting that I could... I had a choice. I could
dissent, vote against and add it as a member of dissenting opinion.
Or I could concur and explain. Because I agree with the overall
what is said but I...what I'm pointing out is, I disagree with the
fact that we did not address and the important issue of an
appearance of impropriety or an appearance of a conflict of
interest. Which I think was the most important matter. And so
that's what the minutes reflect. And so I was understanding that I
could express that difference and still vote for the motion.
Mr. Robinson: Right.
Ms. Sumner-Mack: We had all this and then executive session later?
Mr. Wiseman: The appearance of impropriety which we had discussed is referred
to in the conclusion.
Mr. Heintz: And it's inadequate.
Mr. Robinson: Yeah.
Mr. Heintz: So as a Board Member, I'm exercising my right to express a
disagreement with the overall.
Mr. Yoshimoto: The only question I have is... Well one of the questions I have is
though...that wasn't presented yet to the Board...yet. Right? We
haven't seen it yet.
Mr. Heintz: That's right and I don't want to continue to delay and hold up the
resolution for Mr. Roth. I'm essentially concurring with what the
Board is saying. And only I am expressing this opinion.
Mr. Yoshimoto: Yeah.
51
Mr. Robinson: He can present that and we could take it up at the next meeting,
correct?
Mr. Wiseman: Well I have a problem with delaying this for another month.
Mr. Robinson: I don't think it would delay our informal advisory opinion in
regards to Mr. Roth. I think it would just...his name would be
separate. You could actually still vote for this and submit that.
Correct?
Mr. Yoshimoto: Right. We can do that.
Mr. Heintz: But this is part of that.
Mr. Yoshimoto: Well that's the question right? Because the Board Members
haven't seen it yet so you know we need to see. Right?
Mr. Heintz: May I show it to them?
Mr. Yoshimoto: Yes.
Mr. Robinson: But we're not going to read it today.
Mr. Yoshimoto: Yeah.
Ms. Sumner-Mack: Thank you Larry.
Mr. Wiseman: But I'd ask the legal counsel concurring opinion as counsel knows
is very common in court decisions, appellate court decisions where
there's more than one judge. Usually a three judge panel. Or
Supreme Court, nine justices and some will issue a concurring
opinion which is...I agree with the ultimate decision but for the
other reasons are...etc. So I'm querying Counsel whether we
could just have this as a concurrence...concurring opinion.
Mr. Yoshimoto: I mean that would be appropriate, assuming that's what this is. It's
just that I haven't seen it yet either, so...
Mr. Heintz: What David is saying is exactly what this says. You'll find this
sentence...I agree with the Informal Opinion of the Board as far as
it goes and then I say but it needed to go further and didn't. And
that's my view as one Member of the Board.
Mr. Robinson: We could... Couldn't we accept this Informal Advisory Opinion
with regards to Mr. Roth? Then that could be presented in our next
meeting and we could accept it and file it. Correct?
52
Mr. Yoshimoto: Yeah. We can do that.
Ms. Sumner-Mack: I mean I move that we take it...take this under this concurrence
under advisement and talk about it...
Mr. Robinson: At the next meeting.
Ms. Sumner-Mack: At our next meeting.
Mr. Heintz: I have a question. Does that imply, that if the Board as a whole,
takes an action not to accept a concurring dissenting opinion?
Ms. Sumner-Mack: No. It means it gives us chance to add it if we want.
Mr. Robinson: Or add it or actually just file it along with this Informal Advisory
Opinion. We would file that and they would be there together.
Mr. Heintz: I'm concerned with the...if we want. I'm concerned that the Board
then would be denying a Member of the Board to express his
dissent.
Mr. Robinson: Okay.
Mr. Yoshimoto: We're overthinking this. It's pretty simple. We're here to approve
the opinion drafted by Deputy Corporation Counsel Malia Hall,
right? So we can make changes at this point and time cause it's
still in draft form, right? And the concurring opinion that the
Board Member Heintz wants to file...that's his prerogative if he
wants to. But it's...the Board should be at least able to look at it
too. Like Ms. Sumner- Mack said, perhaps add to it too as well.
So I don't see an issue really.
Mr. Heintz: Then that's your sense than fine.
Mr. Yoshimoto: Okay.
Mr. Robinson: So in regards to Petition 2019-07, does anyone have anything else
they would like to add? Question?
Mr. Wiseman: Again I haven't had the chance to focus on the one or two
comments I would make. They were minor but just inform... So I
would submit those since we're not going to finalize this today.
Mr. Robinson: Oh, we are.
53
Ms. Sumner-Mack: We are.
Mr. Robinson: We already had a motion to accept and a second.
Ms. Sumner-Mack: Take under advisement, any...
Mr. Robinson: And then we've had Mr. Heintz tell us that he has a concurring
opinion that he wants to put on record as well.
Mr. Wiseman: Yeah. Procedurally, I mean if we are adopting this resolution to
this opinion today...that means it can be issued today.
Mr. Robinson: Correct.
Mr. Yoshimoto: That's [inaudible]
Mr. Wiseman: And we're gonna come out with a subsequent concurrence.
Mr. Robinson: No.
Mr. Yoshimoto: No. See the issue is...we only got this today.
Mr. Robinson: Yeah.
Mr. Wiseman: Yeah.
Mr. Yoshimoto: Right. So the Board can either...if it wants to move forward with
this Informal Advisory Opinion with amendments...we can do
that. Right? Or the Board can just wait and package this for next
time. But I understand the Board doesn't want to wait any longer
so.
Mr. Robinson: Yeah. We wanna get this issued.
Mr. Yoshimoto: It's up to the Board. So we could just issue this and then address
that...the concurring opinion the next time.
Mr. Robinson: Yeah.
Mr. Yoshimoto: I guess is the question.
Mr. Wiseman: So again that'd be a separate issuance. I'm concerned with the
public's perception of this.
Mr. Yoshimoto: Yeah.
54
Mr. Wiseman: It's confusing. Didn't they issue a decision on this already...now
what is this?
Mr. Yoshimoto: So the cleanest thing would be to package these together.
Mr. Wiseman: Of course.
Mr. Yoshimoto: For the next time. So that would be still the preferred route.
Mr. Robinson: Okay. There's been a motion and a second to accept the Informal
Advisory Opinion regarding Mr. Roth. There's also been
discussion regarding clarification which will be separate. So all
those in favor of accepting this Informal Advisory Opinion as
written, say aye. Opposed?
Mr. Heintz: Aye. I'm opposed.
Mr. Robinson: You're opposed.
Ms. Sumner-Mack: I'll withdraw the motion.
Mr. Heintz: Cause they're separating them.
Mr. Robinson: Okay.
Mr. Heintz: I mean David and I are both saying don't separate the motions.
Mr. Wiseman: Motion withdraw and I second it.
Mr. Robinson: Okay. So we'll kick it to the 28"' and then we'll leave it up to J to
take Larry's comments and merge them into this.
Mr. Heintz: Staple it on the back.
Mr. Wiseman: I'd like to request and I don't think it's in the form of a motion.
But I'd like to request that we get the draft final. The draft opinion
we're gonna act on...well in advance of the next hearing...so we
don't have to have this late again.
Mr. Yoshimoto: Okay.
Mr. Wiseman: I would like it at least like a few days before.
Ms. Sumner-Mack: Are you gonna get your comments in too before then.
Mr. Wiseman: Absolutely.
55
Mr. Yoshimoto: Yeah. So the draft is available...I believe Malia said she emailed
it...yeah.
Mr. Robinson: She emailed it like two days ago.
Mr. Yoshimoto: Two days ago.
Mr. Robinson: It wasn't a lot of time.
Mr. Yoshimoto: Right.
Mr. Wiseman: If we can get it a few days before.
Mr. Robinson: Alright. So motion withdraw and there was a second. All those in
favor of withdrawing pending resolution on the 28th say aye.
Okay.
Mr. Yoshimoto: Postponed to the next hearing?
Mr. Robinson: Yes. Okay.
Motion and Vote: Ms. Sumner-Mack moved to withdraw motion to accept draft
informal resolution and to continue item to the next hearing. Mr. Wiseman seconded the
motion. All members voted aye.
6. COMMUNICATION (3:12 p.m.)
a. Email from members of the public dated January 16, 2020 regarding ethics
complaint for the lack of enforcement of state laws at Mauna Kea Access Road.
Mr. Robinson: Next item on the agenda, communication. Email from members of
the public regarding ethics complaint. We had quite a few of those
actually. So we just note those and file. Correct?
Mr. Yoshimoto: Yes.
Mr. Robinson: Yes. Okay.
Mr. Yoshimoto: And if you have...want any discussion...that's...
Mr. Robinson: Anyone have any discussion on those particular items that we
received.
Mr. Yoshimoto: So this particular email is dated January 16.
56
Mr. Robinson: Which particular email?
Mr. Yoshimoto: I'll get you...
Mr. Robinson: There were so many of those. Yeah we already had that one.
Michael Nathaniel. He was here earlier. He testified. And then
we had a whole bunch more. Correct?
Mr. Yoshimoto: Yes.
Mr. Heintz: Ten or twelve.
Mr. Robinson: We just note those and file. Yeah. Okay. Anything on those
emails we got in Mr. Heintz?
Ms. Sumner-Mack: I had a question about why we suddenly had this spate of emails on
this topic. I don't find any fault with that but I just wondered if
people really read the newspaper that carefully. And then come
down and view the videotape and everything. Is that common.
Mr. Wiseman: The videotape was a news broadcast, I believe. I saw it.
Mr. Robinson: I think it means that West Hawaii Today and the Tribune Herald
are doing their job. Keeping the public informed.
Mr. Heintz: I have one question. Now we're referring to those emails but are
you also referring to the Michael Nathaniel and Lisa Malakaua.
Mr. Robinson: Yeah that one particular email...but then there's all these...
Mr. Heintz: Okay are we gonna treat that one differently? As though it's
actually a petition? Because, it seems to use that language.
Mr. Robinson: Actually you're right. Thank you for bringing that up. You are
right. They did request.
Mr. Yoshimoto: Right. So this particular communication is agendized under
number six because of the wording right. It basically says we
which to submit an official ethics complaint.
Mr. Heintz: Yes.
Mr. Yoshimoto: But it was not agendized as a petition because it did not meet the
requirements to file a petition with the Board. In other words it
didn't have...it didn't name a respondent. We require a
respondent because someone needs to be answering the petitioners
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concerns, right, so. So we agendized it as a communication so the
Board can take whatever action it feels appropriate. Whether...
Mr. Robinson: I think what we do is to go back and say if you want to file a
petition, here's the form you fill out and how you direct it. If they
want to file that petition. But it's really consistent with what
we've talked about...with our resolution as well.
Ms. Sumner-Mack: Whose responsibility is it to tell them that?
Mr. Yoshimoto: I can advise them if that's the direction the Board wants me to
advise them. I can.
Ms. Sumner-Mack: Yes.
Mr. Heintz: I think they should be...so directed.
Ms. Sumner-Mack: Please.
Mr. Yoshimoto: So then okay. As well as the other filing requirements cause we
have a... I can address the procedural issues and then the Board
can take it from there.
Mr. Robinson: Right.
Mr. Robinson: Item number 7 is executive session. I'm gonna move that to the
end because we've already addressed a lot of those items and we
signed those 55 forms and so item number 8 on the agenda.
7. VOTING ON EXECUTIVE SESSION MATTERS (3:36 p.m.)
a. Review of the executive session minutes of December 11, 2019.
Mr. Robinson: Do we need to go into executive session or can we just approve the
minutes of the executive session from December 11, 2019? Has
everyone had a chance to review those? Is there a motion to
approve?
Mr. Heintz: I, motion to approve.
Mr. Wiseman: Second.
Mr. Robinson: Alright, moved and seconded. All those in favor say aye.
Contrary minded. Okay I think that's all on our agenda for today.
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Motion and Vote: Mr. Heintz moved to approve executive session minutes. Mr. Wiseman
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.
Mr. Yoshimoto: So for the record, the financial disclosures, that has been voted on?
But that's going to be continued till next time?
Mr. Robinson: No the financial disclosures, everyone had a chance to review
those.
Mr. Wiseman: I signed all of them.
Mr. Robinson: So we approve all of those. Correct. Okay.
Mr. Wiseman: Okay Rick.
Mr. Robinson: Alright. Thanks David.
8. REVIEW DRAFT RESOLUTION TO CONDUCT AN INVESTIGATORY
HEARING AS TO WHY THE RULE OF LAW IS NOT BEING ENFORCED AT
THE MAUNA KEA ACCESS ROAD. REVIEW TEN EMAILS RECEIVED
FROM MEMBERS OF THE PUBLIC REGARDING MAUNA KEA. (3:16 p.m.)
Mr. Robinson: On there, it says review ten emails received from members of the
public regarding Mauna Kea and those are all there. But I think
the most important thing for us to do is to discuss the resolutions
which I'm assuming everyone's had chance to read and understand
and review.
Mr. Wiseman: I want to make a motion in view of the...several persons testifying
this morning...offering comments on it and the letters...that we
defer action on that until next meeting.
Mr. Robinson: Now in deferring action... I'm sorry, is there a second? Is there a
second to that motion? Okay. Motion dies for lack of second.
Ms. Sumner-Mack: I would like to ask if it would be appropriate to say something
about the general tone of the emails that we received because they
were very positive about our motion or our movement toward
investigating the possible ethical issues. It was not a resolution
that we're going to do something about it...but was a resolution
that we thought we should pay attention to that and check on
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possible ethics violations. To study it. And so 1...that was the
general tone of all the emails that came in...as far as I could see.
Mr. Robinson: I agree with that 100%. That's what I read to it as well. So people
were supportive of investigating as to if there is a violation to the
rule of law and if there is an ethical violation that's occurring.
Mr. Heintz: Mr. Chairman. Is someone going to read this resolution?
Mr. Robinson: I can read it if you would like for me to.
Mr. Heintz: Thank you, yes.
Mr. Robinson: A resolution authorizing that County of Hawai'i Board of Ethics to
conduct a hearing and/or investigation for the purpose of issuing an
informal advisory opinion as to whether the Code of Ethics is
violated when a county officer or employee does not enforce the
law at a protest or other public sites such as near the Mauna Kea
Access Road.
Whereas, a question had arisen as to whether the Code of Ethics is
violated when a County officer or employee does not enforce the
rule... I mean not enforce the law at a protest or other public sites
such a near the Mauna Kea Access Road on the Island of Hawai`i;
and
Whereas, pursuant to Hawaii County Code Charter Section 13-5.
Oath of Office, before entering upon the duties of their office, each
officer elected or appointed shall subscribe to the oath or
affirmation to support and defend the Constitution of the United
States of America and the Constitution of the State of Hawai`i and
faithfully discharge their duties; and
Whereas, Chapter 2, Article 15, Section 2-83 (a)(3), states that all
persons shall be treated in a courteous, fair, and impartial manner.
And whereas, the Hawai'i County Board of Ethics ("Board")
questions whether this particular provision of the Ethics Code may
be violated by a County officer or employee when they do not
enforce the law at a protest or other public sites such as near the
Mauna Kea Access Road on the Island of Hawai'i; and
Whereas, pursuant to Hawaii Charter Section 14-5 and Section 2-
86 (b) of the Hawaii County Code, the Board may initiate
complaints for violations of the code of ethics; and
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Whereas, the Board has not previously opined on this issue and
pursuant to Rule 5.2 (a) of the Rules of Practice and Procedure of
the Board of Ethics, the Board may on its own accord through
formal resolutions initiate a hearing and/or investigation into
questions that necessitate an informal advisory opinion; and
Whereas, the Board deems it prudent to consider this issue in order
to clarify and if necessary, enhance the meaning of the rule of law;
and
Whereas, the Board resolves that the proposed informal advisory
opinion is prospective only, and is not prepared for the purpose of
criticizing or penalizing previous conduct of County officers or
employees; and
Whereas, based on the present record before the Board, the Board
is able to define the nature and scope of the inquiry to be made;
and
Be it resolved by the County of Hawaii Board of Ethics that
pursuant to Rule 5.2 (a) of the Rules of Practice and Procedure of
the Board of Ethics, that a hearing and/or investigation be held by
the Board of Ethics to determine whether the Code of Ethics is
violated when a County officer or employee does not enforce the
law at a protest or other public sites such as near the Mauna Kea
Access Road on the Island of Hawai'i; and
Be it further resolved that the Board as a whole shall be designated
to conduct the aforementioned hearing and/or investigation; and
Be it further resolved that the nature and scope of the inquiry shall be
limited to the following question:
(1) Whether the Code of Ethics is violated when a County officer or
employee does not enforce the law at a protest or other public
sites such as near the Mauna Kea Access Road on the Island of
Hawaii?
Be it further resolved that the Board of Ethics, upon completion of
the hearing, shall render an advisory opinion pursuant to Rule 4.9 of
the Rules of Practice and Procedure of the Board of Ethics, unless
the Board determines it is necessary to conduct a formal hearing
prior to rendering an advisory opinion.
Be it finally resolved that a copy of this resolution be forwarded to
the Mayor Harry Kim; to the Corporation Counsel Joseph
Kamelamela; and to the Police Chief Paul Ferreira.
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Dated this day, introduced by... And that's it.
Mr. Heintz: Mr. Chairman, I'd like to suggest some amendments.
Mr. Robinson: Okay
Mr. Heintz: On the fourth whereas. That we could omit the phrase "the Hawai`i
County Board of Ethics ("Board") questions whether". Just omit
that so the whereas would read...whereas this particular provision of
the Ethics code may be violated by a County officer or employee
when they do not enforce the law at a protest site.
Mr. Robinson: Okay.
Mr. Heintz: So on. Just simply omit that phrase.
Mr. Robinson: Alright.
Mr. Heintz: On the second page. The third whereas. Simply omit the word
"and" at the end. The last word.
Mr. Robinson: Oh, okay.
Mr. Heintz: And then. Under the "be it resolved sections". The third "be it
resolved"...make "question"...plural to questions. Just add an "s".
Mr. Robinson: "to the following questions".
Mr. Heintz: Yes.
Mr. Robinson: Okay
Mr. Heintz: And then the questions that are provided there...the first
one...simply omit "such as near the Mauna Kea Access Road on
the Island of Hawaii". I think this is just redundant. It's being
mentioned over and over again.
Mr. Robinson: So we just line all that out.
Mr. Heintz: Just line that out. And then put "and"...and here's the second
question that I'd like to be added. Which says, "Which County
officers or employees have the authority to enforce the law at the
protest or other public sites?"
Mr. Robinson: Officers or employees?
Mr. Heintz: Yes.
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Mr. Robinson: Have the authority...?
Mr. Heintz: To enforce the law at protest or other public sites, and question 3.
Mr. Robinson: Just a second. To enforce laws at protest sites.
Mr. Heintz: And then question 3 would be, "That those officers or employees
explain the basis of their decisions and actions or lack of actions
regarding the protests on Mauna Kea.
Mr. Robinson: Explain...those officers and employees explain...
Mr. Heintz: The basis of their decisions and actions.
Mr. Robinson: Okay.
Ms. Sumner-Mack: Are you finished Larry?
Mr. Heintz: That's all my questions. I can explain why I'm making these
amendments if necessary.
Ms. Sumner-Mack: Well, I had a number of questions and other reactions when I read
this which is a draft of a resolution that I did not see until couple
days ago. I guess. But I have a number of suggestions to make
and I also think that this morning session of public comment might
give rise to additional refinement of this resolution and address
certain things. I don't think that...I mean the rule of law is
important and that a lot of issues that are important but it shouldn't
just... I don't think we should limit it. Several people this
morning called for slightly broader things. Like the behavior of
the...the manner in which the law is enforced might be called into
question or investigated. So that's my only comment. It's a draft
and like any draft, it's subject to refinement and involving more
heads.
Mr. Heintz: I was trying to capture some of that in the third question where
those who are enforcing or not enforcing the law...explain and the
reasoning.
Mr. Robinson: Yeah...why.
Mr. Heintz: Why or why not. I mean there might be good reasons not.
Mr. Wiseman: I have a couple issues. Taken the smallest, easy stylistic one first.
I disagree with Larry's suggestion that the"and" on the third
whereas be deleted. In a resolution whenever there's a whereas to
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be followed by another whereas, it's a common and it's customary
drafting and formatting that the"and"be placed after the
semicolon at end of a whereas...to be followed by another whereas
so. Number one.
Mr. Heintz: But its followed by a resolution.
Mr. Wiseman: Oh that's the third one.
Mr. Heintz: I know the last one. I only was talking about the last one.
Mr. Wiseman: Okay. I'm mistaken. Okay, I agree with Larry. It's followed by a
"Be it resolved".
Mr. Robinson: Okay. So we're with that then.
Mr. Wiseman: But my other issue is with respect to Larry's second question, in
which I had raised at the last meeting. With respect to the standing
of the...of the Board to go into this area without first establishing
the jurisdiction of that access road. Whether it's State or whether
it's County. And if it's State, does the County still have an
obligation to enforce it? If it's County, does the State have any
obligation to enforce it? And that seems to be a...something of
issue. I would not want to proceed in full, in an investigation only
to be held back that we don't have jurisdiction cause it's a State
issue.
Mr. Robinson: I drive on the Queen Kaahumanu Highway which is a State road
and a County guy is giving me a ticket. I drive on a County road
and I get a ticket from a County guy. So it seems to be that...
Mr. Wiseman: That you should drive more carefully.
Mr. Robinson: Yeah. No I'm being facetious when I say that. I'm a law abiding
citizen. I'm kidding. I've had tickets.
Mr. Heintz: And our Prosecuting Attorney Mitch Roth adds...his prosecuting
or his office is prosecuting folks who have been arrested. In
fact...noticed this section is...these are questions we're asking.
And one of the questions is...who has jurisdiction up here? And
how complicated is this and that's why I'm asking for people to
explain what they're doing and why. And I am not...1
mean...there are all kinds of questions here.
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Mr. Wiseman: I'd be in favor of a question...perhaps modified somewhat in
what... Larry's...second question. They're going to the
jurisdiction issue.
Ms. Sumner-Mack: Right. Jurisdiction is important and that's why an investigation
that... Our investigation could begin with that. One of the emails
appended a series of photographs and graphs showing what they're
interpretation is of who owns or controls or supposed to control
which pieces of that property around the intersection and I think.
And that was very interesting. I think we need to find out more
facts about that among other things. So focusing just on enforcing
the law, I think might lead to more answers about jurisdictional
problems and I think that's all to the good.
Mr. Robinson: Yeah.
Ms. Sumner-Mack: To shed light on what has happened and to make sure everyone is
heard.
Mr. Robinson: Right. Okay. So we're going to make these amendments okay?
And we'll take this up on February 28 with all the amendments
made. Correct?
Mr. Heintz: And yeah, and can we get these ahead of time.
Mr. Robinson: Ahead of time so that we can. And J, it won't take you that long to
wordsmith on this and then we go forward.
Mr. Wiseman: Mr. Chair as I informed the Board, I have to leave 3:30.
Mr. Robinson: We're trying to get this done right now so if you can bear with me
for a moment. So we had a motion. We had a second to accept
this. We've made amendments. We are now going to have that
motion die for lack of support. Or no, we had the amendments so
we have to amend the motion...to... So we need to amend the
motion to have the motion...have this heard at the February 28`h
meeting. And then with the noted amendments that we've made.
And hopefully getting it in enough time so we can review and
prepare to take action.
Mr. Yoshimoto: So to be clear then, so then these amendments... This is what the
Board wants to go forward at this time but is this still gonna be in
draft form because it's going to be my suggestion to that we still
go into executive session so we can talk about this issue further.
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Mr. Heintz: Is it possible for a draft form to come to the members like say in a
week or two so that others might want to add further amendments
and those all can be incorporated. And so at our next meeting we
can have all those amendments incorporated and then vote on
whether we...and take those amendments piece by piece.
Otherwise we will be doing this in after TMK is being built in the
Canary Islands.
Mr. Yoshimoto: So, the answer is yes because...well we have the starting document
right. And again this is a draft form. That's why it's still being
drafted. It's like ever changing right. So, yes, I can do these
changes right now. But my question is, does the Board want to
consult with me today or would it be at the next meeting?
Mr. Robinson: Next meeting.
Mr. Yoshimoto: Next meeting.
Mr. Robinson: Okay we had a motion and a second. Could someone amend the
motion to provide that we review this at the February 28 meeting?
Mr. Heintz: So moved.
Mr. Robinson: Is there a second?
Mr. Wiseman: Second
Mr. Robinson: Okay. Moved and seconded that we amend this document and
review it at the February 28th meeting. Hopefully with us getting
drafts ahead of time so we can... And is there any further
discussion? If not, all those in favor say aye. Thank you.
Motion and Vote: Mr. Heintz moved to amend draft resolution and for continued review
at next meeting. Mr. Wiseman seconded the motion. All members voted aye.
9. ELECTION OF CHAIR AND VICE-CHAIR FOR 2020. (3:35 p.m.)
Mr. Robinson: Okay, David I know you have to go. The only thing we really
have left is election of chair and vice-chair for 2020.
Mr. Wiseman: Oh I'll stay for that.
Mr. Robinson: Okay.
Mr. Wiseman: Are we ready?
Mr. Robinson: Yeah.
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Mr. Wiseman: I nominate Rick Robinson as the Chair.
Ms. Sumner-Mack: I second.
Mr. Robinson: Oh thank you.
Ms. Sumner-Mack: All in favor?
Mr. Heintz: Aye.
Mr. Robinson: Vice-Chair?
Mr. Heintz: I nominate Judge Wiseman. David.
Mr. Robinson: Is there a second?
Ms. Sumner-Mack: Mr. Wiseman.
Mr. Heintz: Mr. Wiseman. The Honorable Mr. Wiseman.
Mr. Wiseman: Thank you.
Ms. Sumner-Mack: I second that.
Mr. Robinson: Okay, moved and seconded. All those in favor say aye.
Motion and Vote: Mr. Wiseman nominated Rick Robinson as Chair. Ms. Sumner-Mack
seconded the nomination. All members voted aye.
Motion and Vote: Mr. Heintz nominated David Wiseman as Vice-Chair. Ms. Sumner-
Mack seconded the nomination. All members voted aye.
10. ANNOUNCEMENTS (3:36 p.m.)
Ms. Sumner-Mack: The announcement has changed. The date for the meeting is
changed now.
Mr. Robinson: Yes the next meeting will be February 28, 2020. We'll be across
the hall. Correct?
Ms. Pagala: Yes.
Mr. Robinson: Across the hall.
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11. ADJOURNMENT (3:38 p.m.)
Respectfully submitted:
A/f 401.44H P `
Maria Pagala, Secretary
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