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CARR SMITH: Yeah, I understand. I mean, most people do see when it's time to do that, but
<br /> when, when you have people who don't necessarily see that then it causes you to feel like you
<br /> need to have guidelines to help you decide what the situation is. Barbara, what's your opinion?
<br /> DEFRANCO: Well, I think it's a good idea to have general guidelines. I think all of us have a
<br /> strong moral compass and we know if we're, when we step into a commission like this, that we
<br /> should step in looking at all the facts and trying to make a decision that's based on what we're
<br /> being presented with and not our own personal agendas. When our own personal agendas are
<br /> there, then we either need to announce them, or we need to recuse ourselves, and I think a simple
<br /> set of guidelines that maybe isn't associated with criminal law would be good. I'm thinking that
<br /> maybe it would make more sense to put it in something that had to do with commissions, but I
<br /> think it's a good idea that we, we all can read it what it means when we need to step out.
<br /> CARR SMITH: Well, at the commission level we, we basically have contested cases. That's
<br /> what this is, it's not a formal contested case, but it's what Board of Appeals is and that's the
<br /> language that they use as well, so.
<br /> DEFRANCO: Yeah.
<br /> CARR SMITH: Staff, do you have
<br /> DEFRANCO: But I - - - so it's sort of came up because if someone who's appearing before us
<br /> that's presenting material ask that one of us be recused because of whatever it is, I think this is
<br /> why this is sort of on the table right now, and I think that we as a commissioner should be able to
<br /> respond, "no, I don't have that bias anymore, that happened 20 years ago, I don't even feel that
<br /> way now," I mean, you know, I think we all look toward the integrity of the commission itself. I
<br /> think we just have to understand that.
<br /> CARR SMITH: Yes Mark?
<br /> VAN PERNIS: Before I get into the procedural problems, we'll use Faye as an example. Faye
<br /> has a bias against a lot more traffic in Kohala, does that mean an applicant from Kohala, where
<br /> the project in Kohala is going to generate traffic moves to disqualify her because she has a
<br /> feeling, or a bias, or experience with the traffic? I don't think so. Now, procedurally, I've already
<br /> mentioned the problem with a bias or prejudice, and prejudice is better defined, arriving after the
<br /> five days when these rules would first [inaudible] even during hearing. I think that there should
<br /> be some time limit, better than five days, by which an applicant has, has to allege somebody
<br /> should be recused and submit an affidavit so that the parry accused has an opportunity to
<br /> respond. Also, I think there should be time limits, and in my case, I wrote a letter, they never,
<br /> four or five years ago, which they allege was biased. Well, it wasn't but, I think that's not
<br /> relevant to the feeling now, or the situation now. And also, procedurally, what if a recusal results
<br /> in a lack of a quorum? What happens then? I think this proposal will only have some merit if to
<br /> very generally say in which to [inaudible] so as to not cripple the commissioner, commissioner. I
<br /> think that it needs a lot more work and a lot more generality. It's going to generate more work
<br /> and give the applicant more tools to pick and choose who he wants to resolve his application, and
<br /> as I said it's going to make a lot more work for us.
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<br /> EXHIBIT C
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