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HomeMy WebLinkAbout2021-07-15 Leeward Exh E (Comm 183) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII DISCUSSION TRANSCRIPT JULY 15, 2021 A regularly advertised discussion on COMMUNICATION 183 BEFORE THE COUNTY COUNCIL was called to order at 3:26 p.m. via live stream online meeting, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Shani Armbruster, Barbara DeFranco, Mark Van Pernis, and Faith"Faye" Yates, and Clement"CJ" Kanuha III(from 4:26 p.m.) ALSO IN ATTENDANCE: Dalilah Schlueter, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Zendo Kern (Planning Director), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Christian Kay (Planner), Tracie-Lee Camero (Planner), and Noriko Sauer(Leeward Planning Commission Secretary) Discussion and recommendation on the Mayor's request (Communication 183) to remove Mark Van Pernis from the Leeward Planning Commission, which will be discussed at the August 3, 2021 County Council Committee on Planning meeting. VITOUSEK: Moving on, agenda item 4, discussion and recommendation on the mayor's request, Communication 183, to remove Commissioner Mark Van Pernis from the Leeward Planning Commission, which will VAN PERNIS: I'd like to raise two points of order. VITOUSEK: One second, let me, let me finish reading the item—from the Leeward Planning Commission, which will be discussed at the August 3, 2021, County Council Committee on Planning meeting. Okay, so, as most people are probably aware that Mayor has requested that Commissioner Van Pernis be removed from the Leeward Planning Commission. VAN PERNIS: I had two points first. First is I believe that we need to decide that this matter is not within the jurisdiction of this commission. It's neither in the County Charter nor in this commission's authority, and I refer to the sections in my written testimony that this matter is not within the authority of this commission to make any decision or discussion or recommendation. And I would also point out that the letter itself that is referred to does not ask for any discussion, does not ask for recommendation, and in itself confirms only the County Council has jurisdiction in this matter, and the County Council has pointed to this earlier. 1 EXHIBIT E Shall I state my second point of order? VITOUSEK: Please do. VAN PERNIS: The point of order, second point of order, is that I believe this matter would require an executive session; it involves a personnel matter. And I think that also the corporation counsel should give some instructions and opinions on the first point of order. VITOUSEK: Are you making a motion to open executive session? VAN PERNIS: I am. VITOUSEK: Okay, is there a second? (No response) there is no second. SCHLUETER: So just to inform everyone the effect of no second, if there is no second, still doesn't come after the chair has requested a second, the motion is said to fall to the floor and simply does not come before the group, and if this happens, essentially you are going to continue to move on with business. So this question doesn't make it to a vote, if there is not a second. Seconding a motion does not mean you agree with it one way or another; it means that you are allowing it to move forward to discussion. VITOUSEK: Commissioner DeFranco, you are, you are on mute. DEFRANCO: Yeah, I'll second the motion so we can discuss this. VITOUSEK: Okay, is there a discussion on—this is to open an executive session. DEFRANCO: Yeah, I've got VITOUSEK: appropriate to me. Commissioner DeFranco, go ahead. DEFRANCO: Does it, does it seem appropriate to you, Mike, to do that? I mean—okay. VITOUSEK: —this is requesting a legal opinion from our corporation counsel. Yeah, it seems like it's appropriate. DEFRANCO: Okay. SCHLUETER: So as Mr. Van Pernis has indicated that he believes executive session is appropriate, as this, in his opinion, this is a personnel matter. Is that correct, Mr. Van Pernis? 2 EXHIBIT E VAN PERNIS: It appears to be a personnel matter. That's the only category I see that are put forward here because it allegedly involves a recommendation on membership and activity of a commissioner, which is me, which is personnel. And I also don't believe thatI think your opinion should also read that this matter is not within the board's authority to determine its membership and qualifications and discipline in that regard, that the matters stated in the mayor's letter and stated in the documentation SCHLUETER: So without getting too far into discussion, why I had just asked for that clarification,just to make sure that I'm understanding what you are asking. What I'm going to advise the commission is that if the commission has a finding that this is a personnel matter, then, yes, executive session would be appropriate. Executive session can be moved and, or can be moved upon and has been I believe by Mr. Van Pernis, and it needs to be approved by two-third vote to go into executive session. Second, as to the scope of the Planning Commission, pursuant to Hawaii, to Rule 6-7.5, the Planning Commissions' duties are advisory, you are an advisory commission, and the duties are to advise the mayor, council and the planning director on planning and land use matters pursuant to law and charter—and that's item 1. So for the commission to decide that it has authority to make this, have this discussion and recommendation, it's up to the commission to have a finding that this falls within your duties to advise the council, the mayor, etcetera. So at this time as moving forward, you know, it would be appropriate for the commission to make its findings as it's choosing to move forward. And just for confirmation—well, I'm going to, I'm going to leave it at that to the commissioner, or to the commission, to make their findings on whether, number one, this is a personnel matter that should be going into executive sessionas I said, if so, we need a two-third vote to go into executive session—and whether you believe this falls within your advisory duties on planning and land use matters. VITOUSEK: Thank you. I think that sort of clarifies my question on going into executive session. Would you please restate the purpose that you said about advising the mayor and the County Council? SCHLUETER: I'm quoting Section 6-7.5 of the Hawaii County Charter, which number 1 under that section states that the Planning Commissions are advisory commissions whose duties are to advise the mayor, the council, and the planning director on planning and land use matters pursuant to law and charter. I won't go into the other items because they are more specific to other land use items. VITOUSEK: And then the statement of law and charter are the Rules of Practice and Procedure — 3 EXHIBIT E SCHLUETER: That's correct VITOUSEK: (Indiscernible — simultaneous speech) SCHLUETER: that's correct, Chair. VIOTUSEK: "l.4(c) Membership. Each Commission consists of seven members appointed by the Mayor and confirmed by the Council," therein the purpose being we would be advising the mayor and the council on rules that pertain to the laws established in 6-7.5, I mean that we don't have the final say in this, we don't get to decide that any commissioner can be removed from the commission, but we do have the authority to advise. Okay. Thank you. Well, to me that alleviates my need for going into executive session. DEFRANCO: Right. VITOUSEK: Can we have a vote? Commissioner Van Pernis, for the discussion? VAN PERNIS: Yes. I think you, before this can proceed, you have to make a decision that this particular discussion or recommendation is part of your advisory duties on planning, land use, etcetera VITOUSEK: (Indiscernible—simultaneous speech) VAN PERNIS: that that is what the duties and functions of the commission; it's not membership but to advise on land use matters. VITOUSEK: Yep, I hear you at the time I believe, but right now we are discussing the executive session, which is the motion on the floor. Any further discussion on executive session? Commissioner DeFranco. DEFRANCO: Yeah, I don't think we need to do an executive session. I think it's, you know, we can discuss things, and I think that's important that we do. VITOUSEK: Okay. With that, I'll call for the vote. Is this a roll call? SCHLUETER: I think a roll call is appropriate at this time. VITOUSEK: Okay, roll call. JACKSON: Commissioner Van Pernis? VAN PERNIS: Aye. JACKSON: I'm sorry, who, who made the second? 4 EXHIBIT E VITOUSEK: Commissioner DeFranco. JACKSON: Commissioner DeFranco? DEFRANCO: No. JACKSON: CommissionerI'm sorry, I don't have a roll call sheet right in front of me Commissioner Armbruster? ARMBRUSTER: No. JACKSON: Commissioner Yates? YATES: What, I'm sorry, what is the vote? I mean what is the question? VITOUSEK: The motion on the floor is whether we need to enter into an executive session to consult with our attorney. YATES: Okay, no. JACKSON: And Chair Vitousek? VITOUSEK: No. JACKSON: Okay, the motion, motion carries to not go into executive session, I'm sorry, motion fails. VITOUSEK: Thank you. At this time I'd like to open up the floor to the commissioners to discuss what they would like to discuss. Commissioner DeFranco. DEFRANCO: Yeah, I SCHLUETER: Do we have a motion on the floor? We just moved not to go into executive session before discussion. Do we have a motion on the floor? Okay, sorry. VITOUSEK: I'm sorry, we need a, we need a motion on the floor now. DEFRANCO: Okay, so I'll make a motion. VITOUSEK: Yes, go ahead. DEFRANCO: I move that a favorable recommendation be forwarded to the County Council Committee on Planning on the mayor's request to remove Mark Van Pernis from the Leeward Planning Commission, which shall be adopted. 5 EXHIBIT E VITOUSEK: Okay, is there a second? YATES: I'll, I'll second just so that we can discuss. VITOUSEK: Okay, thank you. YATES: We are, Commissioner DeFranco, your, the motion is to submit this to County Council to remove Commissioner Van Pernis? DEFRANCO: Right, we have to make a motion so we can have a discussion YATES: Right— DEFRANCO: ightDEFRANCO: this isn't, right now we just need to discuss it, and that's why we are doing this is because YATES: Okay. DEFRANCO: Okay. YATES: Okay, so, discussion? VITOUSEK: Go ahead, Commissioner DeFranco. DEFRANCO: Yeah, I can start with the discussion, because I, I first want to sort of respond to Commissioner Van Pernis's letter that he sent out to all of us. And I felt like I just wanted to ask him—Commissioner Van Pernis, did you write this letter? Did you write this? Did you write this letter that— VAN hatVAN PERNIS: Just,just a minute VITOUSEK: It's on mute (indiscernible–simultaneous speech). There. No, you didn't get it. No,just once. VAN PERNIS: Okay, first of all, it's not a letter; as you may recall, I was granted privilege of writing testimony or writing questions, and that's what this is, is my written testimony. Secondly, I did write this testimony. DEFRANCO: Thank you. I, because I, in reading it, I just felt like maybe we were at different meetings, because some of the things that you talk about, especially paragraph IV [sic-V], you know, the council did not vote in your favor; it voted to defer to see how you would behave in the meetings to come. There was no deferral, I mean there was no agreement, and that it isn't without exception that you are supported by the communities. So maybe you feel that way, and I honor that, but that isn't how I see it. As you know, I testified at, complimenting you on all the years of service you'd given to Kona and helping everybody, and I appreciate that, but as you know, I feel that you are ill-suited to this position. I have found you in the past to be adversarial 6 EXHIBIT E and rude, condescending and not really on point with what is going on. And so I feel that, I feel that it's time to really discuss this, and I'm glad that we are discussing, because I don't have any idea how anybody else feels. Unless we put it here so all of us can understand it and hear what they think, I'm just speaking, these are just my opinions, and this is just what I see it and I have felt and I've experienced from you. I do, however, have a letter from Nancy Carr Smith who, had we been in a real session where we weren't on a Zoom meeting, would have been able to speak today. And she was our past Chair for the last years and certainly the chair during your whole term, and I watched her having to deal with you time and time again where you were disrespectful, and she had to ask you to stop talking, and she would even have to silence you. It was very difficult to have a meeting. And I have a letter from Keith Unger who was the chair before. He only went to one meeting with you, but based on that one meeting, he ended up writing to the County Council. And, yeah, so this is what Nancy has to say. She says I want to share VAN PERNIS: Point of order DEFRANCO: Excuse me VAN PERNIS: point of order. If this letter is not before submitted on this agenda item, I don't think it's proper to read it, testimony or another hearsay, into evidence. DEFRANCO: Okay, well, then I'll just— VAN ustVAN PERNIS: And including any summarization of it. DEFRANCO: Okay, I don't know that that's true or not. I think it's okay for me to do this. VITOUSEK: Pause,pause. Commissioner DeFranco is welcome to use her time to express any opinion that she wants whether it's hers or somebody else's that she has communicated with. Commissioner DeFranco, please proceed with your time. DEFRANCO: Yeah, "As commissioner"this is what Nancy says—"As Commissioners you are to come to the meeting with an open mind, listen to the Planning Department presentations, listen to the applicant's case, listen to public testimony, and kindly and with an open heart, make a decision based on the rules that govern the commission. Representing the Leeward side of the island doesn't mean you represent only some of the people, it doesn't mean that only the anti- growth, only the anti-business, or only the anti-developers should get your attention. You are there to represent all of the people. You get to be a part of planning the smart growth for our island. It's a privilege, an honor, and a tremendous responsibility. You don't get to be mean to applicants, their consultants, testifiers, or fellow commissioners. You don't get to push your own agenda. Your job is to be fair, impartial, and work together as a group, a group that doesn't always agree, but a group that has respect for one another, and a group that recognizes the kuleana before it. You are expected to have good behavior. You don't get free passes. You don't get to be caught with multiple ethics complaints and multiple reprimands, get to a point where your behavior is so bad, and your lack of listening and following directions causes 7 EXHIBIT E multiple Chairs to mute you time and time again, and then have no consequences simply because now you are going to change your ways. "When the Mayor has to ask the County Council to remove you, you should be humble and realize you screwed up. When three Chairs that you have worked with all think that your behavior warrants removal, as well as fellow commissioners who disapprove of you, former applicants and consultants who you have insulted time and time again, they support your removal. I would think that you would not want to be a part of that group. I certainly wouldn't push to be a part of a group that doesn't want me there. Sometimes you have to admit that it's not a good fit and take the high road and step down. "Mr. Van Pernis's response to the agenda item number 4 was full of misrepresentations, full of lies. He said that the mayor only asked for his removal when Mark questioned the planning director's potential conflicts of interest. Wrong. I can say as a matter of fact that eyes have been on this commissioner for most of last year. Bad behavior was trumped with worse behavior over and over. He said he was supported without exception by the community; well, there were many exceptions. He said that the County Council supported him to remain a commissioner; wrong, they voted to defer for three months. He said this agenda item should differentiate between the time before Mark was caught, and the time after Mark was caught. That's ridiculous; a true professional will always behave appropriately, not when asked to, but because it's the right thing to do. "With this agenda item, you have an opportunity to let the County Council know how you feel about having a fellow commissioner be such a disruption, how the time during meetings is dominated by one commissioner. Chairs shouldn't have to spend so much time and effort to control anyone's behavior or have to feel the need to protect fellow commissioners, applicants and staff. This is your opportunity to be heard on the matter. Please don't hesitate to admit and recognize that this commissioner is guilty of disgracing Planning Commission rules, guilty of violating code of ethics sections as well. It cannot continue. Mahalo for listening." So that was a letter from, that was a letter from Nancy. And I have one also from VITOUSEK: Commissioner DeFranco, you've got two minutes of your allowed 10-minute time left. DEFRANCO: Okay, so I, I do have one from, from Keith Unger: "Hi, my name is Keith Unger, and I served on the Leeward Planning Commission for seven years, the last five years of my term I had the privilege of serving as its Chair. I lobbied against Mr. Van Pernis's nomination to the Leeward Planning Commission and had concerns upon his confirmation. My last hearing as commissioner on the Leeward Planning Commission was Mr. Van Pernis's first hearing." The following is an email that he sent to the County Council. Anyway, he said: 8 EXHIBIT E "I'm hoping you've already heard about our Leeward Planning Commission hearing this past Thursday, but in case you haven't, I wanted to express my concern. Yesterday's LPC hearing was what I had anticipated. The Leeward Planning Commission struggled all day to move the agenda forward. Commissioner Van Pernis was unprofessional, rude, combative, got into arguments with applicants, spoke over applicants,pointed fingers and was not interested in working through the process to find common ground." Anyway, that's how Keith feels also. These are the, these are your Chairs. And I was on the CDP for many years and chaired it, and it's very difficult to run a meeting and have to manage someone the whole time where you are trying to have a meeting. So these are just some of the reasons why this is how I feel. But I am really looking forward to seeing how everybody else on the commission feels. So, thank you. VITOUSEK: Thank you. Okay, any other commissioners? Discussion? (No response) I'd like to say that when this originally came up for action by the corporation counsel [sic], I did not necessarily support the removal of Commissioner Van Pernis. I wanted to give him the opportunity to correct his behavior, and we initiated some corrective action, worked with him to accommodate any, any ADA issues, to give him the best chance for success. It wasn't until after we did the effort to provide retraining, to provide updated ADA compliance procedure where he can submit in writing, and he continued the behavior that many of us find inappropriate, that I thought, you know, I don't know what other recourse we have. In looking at the testimony from Commissioner Van Pernis, specifically, item VII says, "At no time did a previous or present Chairperson invoke Robert's Rules of Order to object for decorum, or rule any question or statement out of order, or use the rules to punish or discipline my 2020 and early 2021 activity." And that's just outright false, I mean, that's documented to be false. I provide a list of incidents where behavior was addressed: February 2020 meeting, repeated interruptions and hostile questioning of an applicant led Corporation Counsel Malia Hall to declare your questioning out of order and state that"If you are not going to act in a civil manner, we are going to ask you to leave,"to which you responded to Corporation Counsel, "I think you are out of order;" At the February 2020 meeting, there was a personal attack on an applicant, Brian Cook, when asked if he had ever declared, if he had ever personally declared, bankruptcy. The applicant asked, "Why so personal?" And the chair asked you to refrain from personal attacks; September 21, 2020, Cross-examination style questions of members of the public testifying on a Special Permit application. You asked, "Are you aware that this application violates state land use regulations?" The applicant stated they believed you were asking leading questions that prevented a fair and impartial discussion. And your questions were deemed unduly repetitious by Chair Carr Smith; On August 20'', Commissioner Van Pernis's questioning of traffic engineer Randall Okaneku was deemed to be unduly repetitious by Chair Carr Smith; 9 EXHIBIT E August 20, 2020, applicant's representative Mr. Sidney Fuke relayed the applicants believed that Commissioner Van Pernis had a personal bias against the applicant and requested that his comments be limited to topics that are germane to the application. Later in the meeting Commissioner Van Pernis conducted what appeared to be a personal attack on Mr. Fuke who was acting as planning consultant for the applicant, stating that Pua`a/Suffork was a"blight on his record" and"he should be embarrassed;" In a memorandum dated July 31, 2020, Commissioner Van Pernis stated in writing that he had personally contacted individuals associated with the ongoing Pua`a/Suffork application and questioned them on details of ownership and conditions of the ordinance outside of a duly agendized committee meeting, then proceeded to present his findings of the independent investigation in writing to the commission. Sunshine law requires the Planning Commission receive information as a group. As a result the Planning Commission voted to remove his presentation from the record; Prior to the August 20, 2020, meeting, Commissioner Van Pernis stated that the reason he had questioned the applicant about personal bankruptcy was because he had previously served as an attorney for an individual that had been awarded a foreclosure judgment from the applicant, and that the applicant had, "escaped paying the judgement." It raises a question as to whether Commissioner uses his position as a commissioner to gain information on a legal matter he had previously been involved in; Previously, your Planning Commission Chairman Carr Smith, Chairperson Carr Smith, and Deputy Corporation Counsel made multiple verbal attempts to address, correct his behavior. Commissioner Carr Smith wrote, Chairperson Carr Smith wrote him a letter on October 9, 2020, indicating that his lines of questionings are sometimes not appropriate, indicating that the questions that are asked can sound mean, to cut her off, and that interrupting people is not appropriate. Unfortunately, the behavior did not stop after this formal request from Commissioner Carr Smith; Even as recently as March 18, 2021, which was after that, you requested, Commissioner Van Pernis requested to discuss an item that was not posted on the agenda for the meeting. As chair, I informed him that we cannot discuss that item due to Sunshine Law. He repeatedly attempted to discuss the issue despite my consistent request to cease. In order to maintain decorum, I had to mute his microphone; March 18, 2021, he mischaracterized statements from other commissioners by stating that "we should," stating that"we shouldn't do nothing as Commissioners Carr Smith and Kealoha are proposing." And again, at the time the chair indicated that it would be discourteous to falsely characterize the opinions of your fellow commissioners; March 18'', Deputy Corporation Counsel interceded on your line of questioning to inform you that you were not in compliance with Sunshine Law, to bring the meeting back to order. Commissioner responded to Corporation Counsel by saying, "Don't interrupt." 10 EXHIBIT E After this, these factors precipitated the communication from the mayor requesting Commissioner Van Pernis's removal, which led to the discussion at the County Council Planning Committee where they offered possible suggestions on how to improve this behavior. As a result of this behavior, I wrote a formal disciplinary letter indicating that behavior displayed will not be tolerated and establishing procedures for how we will address inappropriate behavior in the future. This letter was sent to Commissioner Van Pernis on April 12, 2021. You also conducted training with Deputy Corporation Counsel J Yoshimoto on April 13, 2021, that county dropped everything in order to get the training done before the next agenda item [sic] so that he could indeed participate. Despite the training, despite the warnings, Commissioner Van Pernis's behavior was again inappropriate and resulted in an ethics complaint being filed against him by the applicant, "is unprofessional, unwelcoming, rude, and sometimes hostile comments and behavior towards myself as the applicant and testifiers who supported me in the application" for the reason for the ethics complaint. Recently as May 20, 2021, agenda item 3, Commissioner Van Pernis brought up a past agenda item, Palamanui, during discussion of the current agenda. As the chair tried to stop the discussion on Palamanui to avoid Sunshine Law, Commissioner DeFranco called a point of order, and Commissioner Van Pernis repeatedly interrupted the chair in my efforts to return the meeting to order so that we can discuss the duly agendized item. Pursuant to the disciplinary procedures established in the April 12, 2021, letter, Commissioner Van Pernis, to Commissioner Van Pernis I issued a verbal warning. This did not stop Commissioner Van Pernis interrupting, and a recess was called. During the recess Commissioner Van Pernis continued to be argumentative and continued to interrupt, so I warned him that although I don't want to remove him from the meeting, I, I will. And he stopped. All of these items, there are transcripts of, every single one of them is recorded. So, to claim that there has never been any attempt to object to your decorum or to use Robert's Rules to punish or discipline you in 2020 or 2021, is abjectly false and is an indication that you are willing to compromise facts for your own agenda. Any other commissioners would like to share? (No response) Okay, seeing none, I'll request to vote. Commissioner Van Pernis. VAN PERNIS: Can I be heard in this matter? VITOUSEK: Of course. You are a commissioner. VAN PERNIS: I would like to first of all point out that only those who were present during the alleged event, or the commissioners, should be voting on this subject matter. Secondly, I'd like to point out that all these matters raised by Ms. DeFranco, Carr Smith, Mr. Vitousek, all were heard completely by the County Council, and the County Council alone has jurisdiction in this matter, and I continue to take the point of view that this commission has no jurisdiction in this matter. All matters were heard by the council, and on both occasions the vote was in my favor, not to remove me, not to accept the mayor's letter recommendation. Ms. DeFranco may see it differently than I do, but I see it as vote in my favor, and everybody in my district uniformly without exception supports my position. Mr.you know, I don't know if I'm going to get cut 11 EXHIBIT E off timewise, but—Mr. Vitousek's characterizations of all of the events I've participated in were not correct. You'll note that most of them were long before I was schooled, as referred to in section VIII of my letter, you folks know me from my activities on the Planning Commission, and so you know since then I've been reasonable and rational in every aspect. For instance, Mr. Vitousek raises the issue of a recent meeting where he interrupted me—and let me reference transcript that he hasn't produced. I was discussing in the arguments or same as such that I was supporting for a particular subdivision, and that was going to use Ka`iminani and Mamalahoa as the source for traffic, and I brought up in my discussions, I said[Note: The quote is not verbatim from the original transcript], "There is no question that this subdivision will add traffic to Mamalahoa and Ka`iminani. There is a certain time of the day there is no question that the traffic on those two roads is terrible and dangerous, and there have been fatalities. Now, why is that? That's because the Planning Commission, have approved up to 25 delays to the bypass road, that Palamanui was supposed to build by 2005, which would alleviate,"that's when Mr. Vitousek interrupted me and called for an executive session. After the executive session, he allowed me to continue to indicate that the traffic improvements that were added—stop sign, mirror, speed bumps were all favorable—and I was going to vote in favor of it. The point I was trying to make was that Mamalahoa and Ka`iminani was congested, and Palamanui had agreed to build a road to relieve that condition, and this is a, then they asked for a deferral to do that 25a deferral I did not oppose but that meant the pressure on Mamalahoa and Ka`iminani would continue, and that would increase the problems for small developer applicants who relied on those promises for their developments. And I think Mr. Vitousek misunderstood my point and thought I was trying to bring up the Palamanui road deferral, which I did not oppose when it was heard. So I'd say that there was nothing wrong with that; I was trying to make a point. In regards to the Board of Ethics' letter, I've been before the Board of Ethics, and they found no, no conflict of interest, and they have not made any decision that's adversary at this point. The complaint brought before the Board of Ethics by Ms. Hickey, the unsuccessful applicant, was a motion; I made a motion to reject her prior request, and apparently, she took that to the Board of Ethics to try to reverse it. And let me say, this is what she objected to, this is the testimony in the transcript—and Ms. Hickey, by the way, withdrew her complaint for conflict of interest—this is what I said[Note: The quote is not verbatim from the original transcript], "And the other neighbors bought agricultural rural land and the peace and the quiet that goes along with it. What about them? You go a little bit here, sometimes here, a little bit commercial there, on ag land, and pretty soon it's gone. Isn't this a bad precedent? More and more Special Permits overcoming zoning is a bad precedent, will the, we are here, the commission is here, to represent West Hawaii, not the Hickeys. And we need to consider all of West Hawaii, not just the Hickeys." So I did refer to Ms. Hickey as part of West Hawaii. I think it's unfair to say that I was out of order; I was raising a valid point. By the way, even Ms.well, Ms. Carr Smith and I often voted the same way, but we didn't vote the same on that issue. So you folks know me, you see me act on this commission. The key thing is section VIII. The County Council voted to defer the matter and not accept the mayor's letter. Since this matter rose many months ago, mostly 2020, I've been schooled by Deputy Corporation Counsel Yamamoto [sic-Yoshimoto], by Planner Jackson, and been provided with some disability assistance by the county's person in charge of such things, and studied Robert's Rules of Order. 12 EXHIBIT E I've listened to the council and committee through its two hearings and spoken privately with council persons. I long ago provided the suggested written letter of apologyI hope you've already seen it as addressed to you as well to supplement my oral apologies on the record to the commissioners and Chair Vitousek. I know it says here Mr. Vitousek asked for a letter of apology but did not refer to, it didn't say it was here. I hope you've all read my letter, or my testimony—it's not a letter, it's my testimony—and I think you all know my activities. This is a matter that the County Council must decide, not this panel. And if this panel is going to go forward, I would say that there has to be a ruling from the chair that this concerns commission business of recommending land planning matters to the county. Ms. Yates, I know that you had your hand up. YATES: Yeah, I think VITOUSEK: Okay YATES: Oh, I'm sorry, go ahead, Mike. VITOUSEK: Is that it for testimony, Commissioner Van Pernis? YATES: I'm sorry? VITOUSEK: Commissioner Yates, go ahead. YATES: Okay. What I did want to say is that, you know, I have been the commissioner that sat in with Mark in most of the hearings because, you know, at that point in time we both didn't have Zoom, so we were in Kona. I do agree that, you know, sometimes that, you know, when Mark got on a tangent, it was like no stopping him from talking and, you know, being the kind of person that he is, he's very, being an attorney, I guess, he just goes on and on and on, and, you know, he has his point of view, and unfortunately,you know, he wouldn't stop when he should stop. And I know that for those, you know, like for Mike and for Nancy and for, oh gosh, the previous chair, that it gets really frustrating and, of course, then it seems probably combative. And of course, I have to agree with the complaints, because I feel that, you know, when he is asked to stop, he should stop, and, you know, and continue maybe later on. So all I'm saying is that, you know, fortunately, for me, you know, I just kind of sat there and just, you know, none of it was directed, but being longwinded is like, and getting on and on and on, we didn't get anywhere, spent a lot of time. And if we were not the ones who are going to be deciding what's going to happen to Mark, other than sharing our feelings, then I don't know what we are doing. You say we are recommending or what—okay, Barbara. DEFRANCO: Yeah, we are just sharing our feelings, and we are making a recommendation; we are not making any decisions. YATES: Okay. 13 EXHIBIT E DEFRANCO: Okay. Can I make one comment, Mike? VITOUSEK: (Indiscernible–simultaneous speech) DEFRANCO: Mike? Because that, because Mark brought up the Ethics hearing and that he was found okay, I—Mark, this isn't about your vast knowledge or who you are and all the good things about you. This isn't about that. It's about behavior and knowing how to behave here with us and respect each other, even if we disagree. That's what it's about. And, Mark, what happ- did anything, how did you behave at the Ethics commission? What was that like? Mike, what was that like? VITOUSEK: Board of Ethics? CommissionerI mean, there was a back-and-forth between Commissioner Van Pernis and the chair of the Ethics commission, and also the chair of the Ethics commission told him that he would have to be muted, if he wouldn't stop arguing. DEFRANCO: Right, so it's VAN PERNIS: That, that, that's not true. That's basically not true. And if you are asking about the prior commission, you are asking about the Kailua Village Design Commission where I was DEFRANCO: No, no, I'm not. I was asking specifically—excuse me, Mark—Mike a question because you spoke about being at the Ethics VAN PERNIS: (Indiscernible–simultaneous speech) DEFRANCO: I wanted to know, because we are talking about behavior, how you were in front of the Ethics committee, and Mike just responded. So now I'm going to ask another question and then move on. And I'm going to ask Shani: Did you watch any of the videos or are you familiar with any of this? Can you tell us? ARMBRUSTER: You know, I watched a little bit of old meetings, but I, unfortunately, I don't feel like I have enough knowledge to speak on this now. DEFRANCO: Okay. And then I also wanted to say that the County Council, when we went before them, they asked us why we had doubt with this as commission; they asked us why we, why this was, we asked them, but they asked us, and this is why we are putting it here between us, because why don't we clean up our own backyard, that's what they were saying to us, you know, what—and, and the other thing that came up is that Mark, it was decided he had a disability, which we had never heard about before. So then we get a lot to compensate for his disability of providing things for him to make it easier for him so it wouldn't be so frustrated, because it was felt that maybe some of his aggressiveness was because he was frustrated. So we did that. It didn't work. It just hasn't worked. And so today, all we are doing is making a recommendation. The vote, the thing that's on the floor is to recommend to the County Council 14 EXHIBIT E that they accept Mitch Roth's recommendation to remove Mark from the commission. That's what's on the floor, Faye. Thank you. VITOUSEK: Commissioner Van Pernis. VAN PERNIS: A number of things. There has been, the Board of Ethics specifically found no conflict of interest with the unsuccessful applicant, Ms. Hickey. Secondly, Mr. Vitousek's letter VITOUSEK: If I could, one second—did the Board of Ethics rule on Ms. Hickey? VAN PERNIS: They ruled on Ms. Hickey as far as—she had two complaints, one was conflict of interest, and they specifically ruled, as you know, that she had no conflict of interest, or I had no conflict of interest with her. Secondly, they took under advisement the matter of rudeness; they have not made any decision against me in that regard. Secondly, there was a letter from Mr. Vitousek asking for a ruling on whether or not the fact I lived two-thirds of a mile away from Palamanui in the adjoining subdivision, whether that was a conflict of interest VITOUSEK: It's getting (indiscernible–simultaneous speech) Hickey SCHLUETER: Excuse me, can I provide some information as counsel? The petition regarding the chair's letter was ruled upon by the Board of Ethics; however, the Hickey petition was continued, so there is no ruling by the Board of Ethics on the Hickey petition VAN PERNIS: I stand corrected SCHLUETER: (Indiscernible–simultaneous speech) VAN PERNIS: the Hickeys withdrew the matter SCHLUETER: Excuse me, the Hickeys, the Hickey petition, one portion as to conflict of interest was withdrawn. The rest of the petition was not; it is still on the, it's still agendized by the Board of Ethics and has not been ruled upon. VAN PERNIS: Mr. Vitousek's letter asking for whether or not living in the adjoining subdivision is a problem, was ruled not a conflict of interest. Is that correct? SCHLUETER: That's correct. VAN PERNIS: You, since I've been educated and provided with various documentation and procedural rules, you see me act I don't know the mayor, the mayor doesn't know me, he didn't attend these meetings, he has declined to give any name of any person who has complained, he has declined to this day. I point out this is a circumstance, not that it's decisive, but a circumstance where I complained about Mr. Kern's business conflict of interest in my 15 EXHIBIT E article in the newspaper about the same time, or approximately the same time, as this letter. Maybe just a coincidence, but that's the situation. Who's next? You guys, which one of you is next as far as your votes or your, the way you talk to people or question people? You've seen, since my schooling by Mr. Yamamoto [sic], my activities in front of you. Are they out of order? Of course not. No more than anybody else's. I believe that the council [sic] is supposed to ask questions of the Planning Department and of applicants, and that those questions aren't always going to be pleasant nor call for pleasant answers, but the questions have to be made. I don't think it's inappropriate to pursue them. If you make this recommendation as point of order, you are out of order because this concerns my role as a commissioner, not a land use planning matter. So I don't believe you have jurisdiction. VITOUSEK: Okay, question that I have for our newest commissionerwelcome to the commission—do you believe that you have enough information in order to make a vote or do you need additional time for you to consider the full scope of what's happening, in order to review the documentation? ARMBRUSTER: Sure, sure, you know, I, if I need to vote to make something move forward today, I think I would be to ask for more time, if you need my vote in that. SCHLUETER: Just to remind everyone, a quorum vote does need to be met to move forward, or to forward or to take any action, which means four votes are needed to take any action either direction. VITOUSEK: Okay, in that case I think it makes sense for us to defer this application until we have the full commission here to weigh in on it. Commissioner Yates. YATES: Who are we, I'm, who are we missing? VITOUSEK: We are missing CJ, Commissioner Kanuha. YATES: I'm sorry? VITOUSEK: Commissioner CJ Kanuha. YATES: Okay, oh, he's the only one missing? VITOUSEK: He's the only one missing, yep, and then that will give Commissioner Armbruster enough time to watch YATES: Right— VITOUSEK: ightVITOUSEK: previous minutes, to review the information. You know, for those of us who have been in there the whole time, the three, Commissioner Yates, Commissioner DeFranco, and I, we don't need a story from Commissioner Van Pernis about his behavior; we've lived through it 16 EXHIBIT E YATES: Right. VITOUSEK: —every month for the last two years. So, asking about hard questions, with conflict of interest, those of us who have been here, we don't, we don't need any of that because we've lived through it, but I would like to give our new commissioner, Commissioner Armbruster, and Commissioner Kanuha the opportunity to YATES: `Ae. VITOUSEK: fully consider the facts, to consider Commissioner Van Pernis's perspective. So I think that a deferral of this item would be appropriate. So I would SCHLUETER: So I'm going to just help in there. You may want to withdraw the current motion because of the fact that it's a motion to take action, and then make a new motion for the deferral. DEFRANCO: I withdraw. VITOUSEK: Okay, the motion was withdrawn. Would you make a new motion to defer this agenda item? DEFRANCO: I have one question. What—you know, the County Council is meeting when? And this is when they are going to, they've asked this to come back before them? Isn't it in SCHLUETER: The mayor's recommendation does come before the County Council on August 3rd DEFRANCO: So is there any YATES: (Indiscernible—simultaneous speech) they could—sorry. DEFRANCO: Go ahead. YATES: They could make a decision without us having to do anything? SCHLUETER: They, it will come before them, and it will be up to the County Council whether they are going to make, take action on that agenda item. YATES: Okay. SCHLUETER: Excuse me, it's the Planning, it's County Council Planning Committee,just to be clear. VITOUSEK: So no matter what, they have to take action twice; the Planning Committee has to forward a recommendation to the full council, and then the full council would have to have the final authority. So no matter what, we can get our comments in in a timely manner. 17 EXHIBIT E SCHLUETER: And just, if this is something that the commission is asking to do, I mean you can make a motion, the transcripts and the footage of this meeting is public, it's up to you whether—well, I'm going to stop right there because it's public record anyways. YATES: We need to make a motion as to our meeting this afternoon, if we want them to do whatever? DEFRANCO: No. YATES: Okay. VITOUSEK: Okay DEFRANCO: So we now need a motion to defer? VITOUSEK: Yep. DEFRANCO: Until, until the next meeting on August 15d' [sic]? VITOUSEK: Yep. YATES: Is that what you are doing? DEFRANCO: Yes. VITOUSEK: Is there a second? YATES: If the Planning Commission does whatever and moves DEFRANCO: They have to meet twice. YATES: Okay. DEFRANCO: So it's the subcommittee that's meeting first, and then they recommend to the whole council. So we will have an opportunity to meet before the whole council meet, so we will have an opportunity to send our recommendation to the whole council. Is that right? YATES: But isn't our meeting after theirs DEFRANCO: No, no, that's the subcommittee YATES: —isn't it on the 3rd? DEFRANCO: No, that's a subc-that's the Planning Committee of the County Council. 18 EXHIBIT E YATES: Because ours is not until the middle of August, right? DEFRANCO: Right. And then the whole council meets after that. VITOUSEK: Unless a special meeting is arranged YATES: Okay. VITOUSEK: Okay? DEFRANCO: So I need a second. YATES: I'll second. VITOUSEK: Okay, motion and second—[Note: Commissioner Kanuha joined the meeting on Zoom at this time, 4:26 p.m.] oh, we actually, look, we just got— DEFRANCO: otDEFRANCO: Oh YATES: He's back. DEFRANCO: Hi. KANUHA: (Inaudible—microphone on mute) DEFRANCO: Unmute, you have to unmute. KANUHA: Aloha, can you hear me? DEFRANCO: Yes. VITOUSEK: Yes. KANUHA: All right, sorry, it didn't let me log in on my laptop, so, I just, it's letting me come from my phone and I'm sitting here in my office. DEFRANCO: So I table (inaudible—microphone on mute) VITOUSEK: You are muted, Commissioner DeFranco. YATES: You are muted. DEFRANCO: —and I table that while CJ comes on? Or what do I do? VITOUSEK: You can withdraw that motion, if you'd like. 19 EXHIBIT E DEFRANCO: I withdraw the motion. VITOUSEK: Okay, Commissioner Van Pernis, you have a question there is no motion on the floor. Would you like to reinstate your original motion? VAN PERNIS: Let's discuss something as a new race. VITOUSEK: What was that? DEFRANCO: Are you asking me to put forward my original motion? VITOUSEK: I would like a motion so that we can have discussion, your original motion DEFRANCO: Okay, so I move that a favorable recommendation be forwarded to the County Council Committee on Planning on the mayor's request to remove Mark Van Pernis from the Leeward Planning Commission, which shall be adopted. That was the original—now we can continue the discussion YATES: Second. DEFRANCO: —Faye seconds it. VITOUSEK: Okay. YEATES: Okay. VITOUSEK: Commissioner Van Pernis, discussion. VAN PERNIS: Yes. You pointed out, Mr. Vitousek, that Mr. Kanuha and other commissioners, Ms. Armbruster and I believe Ms. Yates to some extent, were not present, and not commissioners, during the time that the mayor's letter refers to; therefore, if they are going to vote at all on this issue concerning the mayor's letter, which was prior to April of 19, of 2021, they need to review all of the transcripts before and after that date to get a fair and the complete review of the situation. Otherwise, they are voting not based on the mayor's letter but on something else. VITOUSEK: They would be voting on their experience serving on the commission with you. And I will ask Commissioner Kanuha the same question that I asked Commissioner Armbruster; Commissioner Kanuha, do you feel as though you have had enough experience in dealing with Commissioner Van Pernis to make a vote on the recommendation today? KANUHA: Yes. Can you guys hear me? VITOUSEK: Yes, we can. 20 EXHIBIT E KANUHA: Yeah, so,previously to even me joining the commission, I have watched all the commission meetings, so I have a fair grasp on what's going on. I've seen things that, you know, I've seen things that kind of went off of, I guess, went off of play of what we're supposed to be doing here as commissioners. So, yes, I do feel very confident that I'm able to vote on this. And, you know,just trying to, seeing what things have, you know, transpired lately, yeah, I do, I feel confident in my vote, yes, I do. VITOUSEK: Okay. I guess we've discussed this pretty clearly. I'd like to call a roll call vote. JACKSON: Okay, I believe the motion is to recommend to the Council Planning Committee the removal of Commissioner Van Pernis from the Leeward Planning Commission. Is that correct? Okay. Commissioner DeFranco? DEFRANCO: Aye. JACKSON: Commissioner Yates? YATES: Aye. JACKSON: Commissioner Armbruster? ARMBRUSTER: So, what isabstain, is that the nonvoting one? Abstain,please. JACKSON: Okay. Commissioner Kanuha? KANUHA: Aye. JACKSON: Commissioner Van Pernis? VAN PERNIS: No. JACKSON: And Chair Vitousek? VITOUSEK: Aye. JACKSON: Okay, the motion carries, four to one with one abstain. VITOUSEK: Thank you for your time. DEFRANCO: Thank you, Mike. Thank you, everyone. Thank you, Mark, for your service. I, you know, we'll see what happens next. VITOUSEK: Okay SCHLUETER: One more item. There should be a motion on how this recommendation will be transmitted to the committee, the Planning Committee, the Council Planning Committee. 21 EXHIBIT E VAN PERNIS: I don't think that it was on the agenda. SCHLUETER: This is the recommendation that was just voted on. Typically, a recommendation would either be that, it would either, if it's done in writing, then it would be continued so that the findings can be approved, or it can be done by, you know, essentially transmittal of your transcript and the recording today. But that needs to be up to you folks, and you guys need to decide how that's going to be done. YATES: I move that we forward the transmittal [sic] of our meeting of today to the VITOUSEK: Is there a second? DEFRANCO: (Raises hand to second the motion) VITOUSEK: Moved and seconded. Is this a roll call vote as well? SCHLUETER: I think that will be appropriate. VITOUSEK: Roll call. This is simply on how we are going to transfer the information. JACKSON: I'm sorry, Chair Vitousek, can you restate who made the motion and second? VITOUSEK: Motion was by Commissioner Yates and JACKSON: Thank you. VITOUSEK: second was Commissioner DeFranco. JACKSON: DeFranco? Okay. All right. Commissioner Yates? YATES: Aye. JACKSON: Commissioner DeFranco? DEFRANCO: Aye. JACKSON: Commissioner Armbruster? ARMBRUSTER: Aye. JACKSON: Commissioner Kanuha? KANUHA: Aye. JACKSON: Commissioner Van Pernis? 22 EXHIBIT E VAN PERNIS: Does this include the transcript? VITOUSEK: Yes. VAN PERNIS: Or just—yes? YATES: Yes. KANUHA: Yes. VAN PERNIS: I, I didn't hear that in the motion. I just heard the decision, not the transcript of proceeding. YATES: I said the transcript— VAN ranscriptVAN PERNIS: Okay YATES: of today's meeting. VAN PERNIS: if the transcript is included, abstain. JACKSON: Was that an aye? VITOUSEK: Abstain. JACKSON: Abstain, I'm sorry. And Chair Vitousek? VITOUSEK: Aye. JACKSON: Okay, the motion carries, five to zero. VAN PERNIS: Five to zero? JACKSON: Yes, because you abstained. VAN PERNIS: Well, then my vote wasn't counted then. SCHLUETER: That's correct, an abstention is not an affirmative vote or a negative vote; it's a nonvote. So for the purposes, it would technically be on your tally as a, as a negative since it was an abstention; it's a no vote. VITOUSEK: Okay, thank you, everybody. 23 EXHIBIT E This item was concluded at 4:34 p.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 24 EXHIBIT E