2020-12-17 Leeward Exh C (Discussion re recusal of a commissioner)

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CARR SMITH: A lot more work for who? VAN PERNIS: Make a lot more work for us. We're going to have to decide all these things. CARR SMITH: Got it. Okay. Mike? VITOUSEK: Just in a continuation of Commissioner Van Pernis' discussion about bias, again, I think that the key with these proceedings is whether or not the personal bias affects the commissioner's ability to be impartial. So, if we're using the example of somebody who opposes development because of traffic, and who states that they will not approve any permit ever that will lead to more traffic, that's displaying an ability, a lack of ability to be impartial, and I could understand why that person would be recused. Now, if somebody says I have concerns about traffic, but I will review each application on the merits of that application and weigh the benefits and detriments of that application, then they're showing an ability to be impartial and weigh that. So, to me, the, the presence of bias is the preconceived ideas of, of what bias is. I think we need to focus on whether or not that individual has the ability to be impartial and including language in our rules that allow the commission to determine that in the event that the individual commissioner won't. And keeping us in line with the other boards and commissions is appropriate. We're not here voting on any specific wording of that today, we're just discussing this, it's agendized for discussion only. So, I, I wanna say again that I think that it is appropriate to have some language about when a commissioner should either recuse, be recused, and then procedures for how the commission can vote for the removal of the commissioner. But I don't think it needs to be tied to the legal definition from criminal law of bias, I think it has to be included in there that the ability of the commissioner to remain impartial and fairly review the merits of the application are, are important. And, and you know, as in your previous example, Commissioner Van Pernis, about the time when you were requested to be recused based on a letter that came back years ago and you said, "I don't believe that that letter affects my ability to be impartial," and the commission agreed with you and we continued. So, I think that having that procedure in place isn't harmful and we're still at the end of the day relying on the, the reasonable judgement of the commission to determine whether or not the bias affects the commissioner's ability to be impartial. CARR SMITH: Thank you, Mike. Malia, did you want to add anything more? HALL: No, I'm just saying I pulled up those definitions because I was asked to pull up legal definitions, but they aren't necessarily tied to these board rules. Just as a clarification. Every, the bias and the prejudice is basically, from these board rules, they don't have definitions linked to them within the, within those board rules so, therefore it's left up to the discretion of the board members, which probably would be the same with you guys if we left that to your discretion as commissioners to view the situation case by case, and judge on whether that person can be or cannot be impartial. KEALOHA: Is there a point where a person's partiality is clear and obvious, and where corp. counsel would step in and say a person should recuse themselves? 6 EXHIBIT C