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HomeMy WebLinkAbout05-09-17 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Tuesday, May 9, 2017 10:00 a.m. to 11:21 a.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai`i 96720 Members and Staff Present: Kenneth Goodenow, Vice-Chair Douglass Adams, Member Rick Robinson, Member J Yoshimoto, Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Mr. Goodenow: Its 10:00 and I'm going call the meeting to order. Gentlemen...I guess we have Board member Doug Adams present. Our Chair was unable to make it and then we have our other member Rick Robinson present. So I'm going to call the meeting to order. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Mr. Goodenow: Do we have any statements from the public on any of our agenda items? Seeing none...let's move on to new business. Petition No. 2017-06. Sony, I've been corrected here. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF MARCH 15, 2017. Mr. Goodenow: Number three...approval of the regular session minutes of March 15. Do I have a motion? Mr. Adams: So moved. Mr. Robinson: Second. Mr. Goodenow: Okay it's been moved and seconded. Any discussion? Seeing none all those in favor of approving the minutes of March 15, 2017 please say aye. All opposed say no. The aye's have it...the minutes are approved. Motion and Vote: Mr. Adams moved to approve the minutes. Mr. Robinson seconded the motion. All members voted aye. 1 4. NEW BUSINESS a. Petition No. 2017-06:Request for an informal advisory opinion from a former County officer or employee, to determine if he would be able to work on the development of a park which he was involved with during his employment with the County. Mr. Goodenow: Now moving on to new business. We have the applicant here...are you requesting a closed hearing or open is fine? Mr. Van Bergen: Open. Mr. Goodenow: Alright. Would you care to come forward then? Usually before we make the motion...I guess our procedure is to have you make a statement and see if any of our members have any questions. So if you could...if you have anything to add to your written submission...this is the time. Mr. Van Bergen: So mainly I would like to answer any questions...I did submit some documentations. Mr. Adams: Sorry. You can start with your name and... Mr. Goodenow: Thank you. Mr. Van Bergen: I should know that by now...I've done that enough. Ken Van Bergen...petitioner. So...I don't know if you guys had a chance to review the material I sent in so I'm open to any questions...as far as the statement goes...just to kind of summarize the situation and what I'm looking for you guys to approve or comment on is....back in 2014...I was moved to...appointed to parks...deputy director from my finance job and I was given a list of probably fifteen priority projects to help the Parks Department with. One of them was...a proposed park development on La`aloa...on some YMCA owned land and the YMCA got this parcel from Towne Development back in 2001 I believe. Towne Development build about 600 homes in the La'aloa area and instead of building a park...they worked out a deal with the County and Y to donate the parcel to the Y in the hopes that...and the plan was the Y was going to build a nice facility...a public facility and so...Towne was alleviated of their...any fresh air commitment. The donation covered that and unfortunately the Y went bankrupted and so the park never got built. So when I got to the Parks Department...it 2 was brought to my attention there was a developer on a nearby parcel...parcel 121 about a half mile...quarter mile away that was proposing to build his fair share park on this La'aloa parcel. So it was a really good fit...it made sense...the County would finally get a park...a public park. It's a better location for the park in his subdivision which is right off Ali`i Drive with very little access. He has eleven acres of parcel that he's going to build 61 homes on. The PUD's been approved and the SMA has been approved and so that's moving forward and in the ordinance for that rezoning for that parcel...eleven acre parcel the rezoning ordinance said in Condition C which I submitted to you that he could put a three...minimum three acre park within half/quarter mile of the development that would be okay as far as the rezoning ordinance. So...it made sense for him...made sense for the County so my main role on this parcel was working on the subdivision cause at the time that...YMCA still owned the parcel and the County had had two agreements with the Y....one in 2001 and then one in 2008...it got extended and the agreement basically said the Y had so much time to build the park or the County could take the whole ten acres back for a dollar. So...I met with the Y and the current administration didn't just want to take the whole parcel back cause the Y still wanted to do something eventually so we worked out an agreement with the YMCA that they...we split the ten acres into two parcels...6.3 acres and a 4.2 acre parcel. The Y kept the 4.2 and the County was deeded about two years ago the 6.5 acre parcel with the intent that the developer would be able to put that three to four acre park there...okay. So my role basically was just to do the subdivision. I'm the one that met with the Y...worked through the you know my land experience...worked out the subdivision...got it approved and that's was pretty much it. When I left the County...December 5...twelve noon. I went back into private practice...I have a real estate/broker's license and commercial real estate brokers...I've had it since 2003 and I was approached by the developer to help him with this subdivision. So I'm consulting for him on his 61 homes...he wants to build and a part of that project is this park. So...which I did have some involvement with when I was at the County a couple of years ago before I went to housing...from parks I went housing about a year and a half ago and that's where I ended my County employment as assistant administrator...but...so that's kind of the situation...I don't have 3 any ownership in the project...I don't have any equity in the project...I'm just a paid consultant to help the subdivision which will be 99% of my efforts to build the 61 homes...there's a lot of work to do there. However, there will be some work to be done when they get the park developed. Mr. Goodenow: Alright any questions members? Mr. Adams: Sure I'll start with some questions. Forgive me for being a novice...actually I'm less than a novice but fortunately we have an expert over on the other side...so...you worked on the park when you were in Parks & Rec? Mr. Van Bergen: Yes. Mr. Adams: Okay...and your work now is to help consult as you say here "consult and project manage the 61 lot subdivision" which includes that parcel...that parcel not actually within that subdivision but it's meeting the conditions for the rezoning ordinance...is that right? Mr. Van Bergen: Yeah it's Condition C of the rezoning ordinance that allows for the developer to put his fair share park commitment on a parcel outside of his development and when I was at Parks and I worked on the project...mainly it was the subdivision to get the land back to the County cause it wasn't at the County but also the developer had Michael Reem his architect...met with Planning and so Planning already approved it and Parks already signed off on it...it would be a fit because they need a park and... Mr. Adams: That all happened while you were at Parks? You were in the County employ when that happened? Mr. Van Bergen: Part of it...part of it I was at Housing. Mr. Adams: And your involvement during that time other than as Deputy Director because it was one of your pilot projects you had some visibility of what was happening...you were actively engaged? Mr. Van Bergen: I was aware of the park...yes. Mr. Adams: Yeah okay. 4 Mr. Van Bergen: I also was...I also at the time...I live in Waimea now but at the time I lived in Ali`i Heights and so I was very familiar with the parcel. I stared at that YMCA sign for fifteen years as it decayed. Mr. Adams: The work that's being done now...that includes the parcel...how much connection...explain if you would for me...the work that you're doing...does that involve...communicating with the County? In any way? Mr. Van Bergen: Yes. So for instance...the subdivision for the 61 lots. I'm working on as far as you know I hired the Wes Thomas...the survey company and I coordinated the subdivision...I've talked to Planning Department and things like that yes. Mr. Adams: Okay. That's what I have right now. Mr. Goodenow: Any question or... Mr. Robinson: If I could. When did you start working on this project? Mr. Van Bergen: I started working on the subdivision...right around...well probably February...January/February. Mr. Robinson: January/February Mr. Van Bergen: Yeah and all that entailed at that particular time was...review the SMA that was submitted...and...mainly looked at some of the history...road map work...what needs to be done next type of thing...because the developer is on the mainland so he's never developed in Hawai`i before. Some of the things...but things are gonna start getting real busy on the subdivision part and so I guess...I just need to know is....what I can do with the park part of it...do I need to have somebody else work on that while I do work on the subdivision only or....because right now as far as the park goes. The Parks Department already approved the plan that the owners architect drew for the park. I think I gave you guys a letter in your packet and so at this point it's just a matter of coordinating...somebody's got to coordinate the EA and the building permits and that type of stuff. Mr. Robinson: So your prior employment with the County...may I continue? Mr. Goodenow: Please. 5 Mr. Robinson: Your prior employment with the County was just in the Parks Department and not in the anything dealing with Planning. Mr. Van Bergen: I never worked for Planning. My first five years I was a Property Manager for the County which is the Finance job in the Property Management Division and then I spent about a year and a half or so at Parks and then I moved over to Housing my last year with the County. Mr. Robinson: The County Code is very clear. It says...post-employment...you can't disclose any information which is not available to the general public. I mean that's just pretty obvious but say no former officer or employee shall within twelve months after the termination of the former officer or employee's employment with the County...assist or represent any person or business for a fee, compensation or other considerations...I'm kind of skipping along here. Pending legislation or anything...with anything that you've had official...your official duties were involved...where you were directly concerned...had under active consideration or obtained information by law which is not available to the general public. So if you left the County...I think you left it says in your thing here...February of 2016... Mr. Adams: December of 201... Mr. Van Bergen: December 5. Mr. Robinson: Oh December... Mr. Van Bergen: When Mayor Kenoi...when the cabinet...when the new administration came in we left yeah... Mr. Robinson: December 5`h of 2016. Mr. Adams: Right. Mr. Van Bergen: Correct. Mr. Robinson: Why did I think February 2016...I don't know? Mr. Goodenow: That would have made it easier. Mr. Robinson: That would have made it easier. Yeah right. You've got the County Code says you can't do it for a year after you leave. 6 Mr. Van Bergen: For...the park? Mr. Robinson: For the park...right. Mr. Van Bergen: Yeah so I'm not working on the park I'm working on the subdivision. Mr. Goodenow: I'm gonna interrupt here because I think that should come under discussion. Mr. Robinson: Oh. Mr. Goodenow: We're just here to ask questions at this time and then we'll have a discussion. Mr. Van Bergen: Yeah...And so just if I...my premise is or is that I'm working on the subdivision...61 lot subdivision which I had no prior access to or involvement when I was at the County...but...this park is part of that subdivision and I'm just seeing...can I help coordinate the park efforts or do I need to have a hands off and just work on the subdivision only. Mr. Adams: Right....1 understand the question. Mr. Van Bergen: Yeah okay. Mr. Robinson: Got it. Mr. Goodenow: I have just a question that you may have already answered but as far as moving forward with the subdivision...you have I guess a...tentative subdivision approval for the lots and all that...that's been done? Mr. Van Bergen: No actually the survey is being done now...it should be completed any time now...there's been a PUD that was submitted by the owner's architect in the past that got approved for the...on the project but the subdivision application...we're just now submitting for 61 lots. Mr. Goodenow: And so a part of that...I mean you said the plan for the park right has already been...the Park's Department signed off on that... Mr. Van Bergen: Michael Reem...the architect hired by the consultant on both...on his project did...did some park plans in consultation with the 7 park's planners with the County and got approval on that latest plan so yeah the... Mr. Goodenow: So that's your current employer right the...Michael Reem works for them...that's part of the current subdivision not the prior subdivision. Mr. Van Bergen: What's the prior subdivision? Mr. Goodenow: I mean the one that were they gave the land to YMCA...that project...they satisfied that condition.... Mr. Van Bergen: Yes that project....yes. Mr. Goodenow: So this is part of the new project... Mr. Van Bergen: Correct. Mr. Goodenow: That's the plan. Mr. Van Bergen: Yes. Mr. Goodenow: You weren't in the Parks Department when that got approved... Mr. Van Bergen: No...back in 2008. Mr. Goodenow: So...the...there will need to be one more...I mean you need final subdivision approval...that would be...I guess the Planning Department would do that.. Mr. Van Bergen: Yes and that's gonna take some time. Mr. Goodenow: And...as part of that...the Parks Department would have to again sign off or is their involvement over? Mr. Van Bergen: No...there will be some coordination with Parks as far as...if you look at the letter that they wrote...they're gonna have to...as the architect...as the developer and the architect hire vendors to design the civil and the mechanical and the structural on the park build...Parks Department has got to approve all those drawings...because they can approve a plan but they got to make sure the plan meets specific County requirements because it is for a park....certain materials are used, certain codes are followed but.. Mr. Robinson: You got to fulfill all the conditions. 8 Mr. Van Bergen: Yeah. Mr. Robinson: Of which the park is for. Mr. Goodenow: So there would be some...interaction with the Parks Department about these conditions like well did we do the EA right or did we...I don't know...we put a swing set here... Mr. Van Bergen: Absolutely. Mr. Goodenow: We want to move it here...is that okay... Mr. Van Bergen: Someone's got to interact with the Parks Department as it moves forward and if it's me great if it's not it probably be Michael Reem or James Leonard. Mr. Goodenow: When do you anticipate that process really to move forward as far as the park development? Mr. Van Bergen: It's going to take some time because they need to...they need to you know... Mr. Goodenow: Get the approval of... Mr. Van Bergen: The vendors just got hired to start designing the park...so that's gonna take several months...there's discussions with...the Planning Department as far as the SMA and so forth so it's gonna take you know a year or more you know to move to get it going. Mr. Goodenow: So I mean you could very well be out of the time period...in any event but... Mr. Adams: Let me just say...as I were moving into... Mr. Goodenow: May I have a motion maybe and make it easier... Mr. Adams: I'm not sure if I'm ready for a motion... Mr. Goodenow: Okay I'll wait. Mr. Adams: That's my concern...so let me just ask Chair...for my edification...really it matters not as I read the code that...if something's coming up before just the Parks and Rec Department in this situation...it's any County agency and so the fact that he worked for the County...the issue of where he worked and what he did and what he had direct contact...that's relevant. The fact 9 that...that any of that has connection to any County agency...it doesn't have to be just who he worked with...it's any County agency...that's the relevant part as well. Mr. Goodenow: True. Mr. Adams: So it's a broader understanding at least in my view is a broader view on the representation to...it's the narrow view on what he was engaged in you know when he was working for the County. In your work...did you have anything to do...was there any work at all that was being done by the Parks and Rec Department with the subdivision? I would assume not...I would assume they'd only be focused on the park? Mr. Van Bergen: Yes. So when you say subdivision...there's two subdivisions. There's the project which is lot Lapukahi Makai which is the 61... Mr. Adams: 61 acres. Mr. Van Bergen: Lot. Mr. Adams: Right. Mr. Van Bergen: Yeah okay and it's Hawai`i One 1 LLC. Mr. Adams: Right. Mr. Van Bergen: And then...so no Parks had nothing to do... Mr. Adams: With that. Mr. Van Bergen: With that. Mr. Adams: Right. Mr. Van Bergen: With the development of that...and the ordinance was passed in 2008 that allowed them to actually do the park. Mr. Adams: Okay. Mr. Van Bergen: But the subdivision I worked on was dividing the YMCA land...parcel 30... Mr. Adams: Parcel 30 into two. Mr. Van Bergen: and the two acres....yes. 10 Mr. Adams: So that was all that...that's the only thing that you really had any involvement in right there. Mr. Van Bergen: Yes...correct. Mr. Adams: Got it and then the...and so the subdivision work so I understand so the subdivision work for the Hawai`i One 1 piece... Mr. Van Bergen: Yes. Mr. Adams: 61 lot piece...that's right...that is currently moving forward and will be the County in some sense will see something from Hawai`i One 1...sometime this year? Mr. Van Bergen: The subdivision application will probably be in this week. Mr. Adams: And you're expecting that you will...well that won't matter...in my view that wouldn't matter...okay got it...but the park would normally be a part of that...would the park be a part of that? Mr. Van Bergen: With the subdivision application? No. The park...the park...yeah it will be part of the final subdivision because the park commitment has to be... Mr. Robinson: Is a condition. Mr. Van Bergen: Condition but it's not part of the subdivision application. Mr. Adams: Okay. Mr. Van Bergen: Yeah the application is just basically the map. Mr. Adams: So once...so he asked this question and I didn't understand the answer so I'll ask it again. When will the...when's the next time something to do with the park will be seen by the County? Mr. Van Bergen: The first of the EA being drafted... Mr. Adams: Right. Mr. Van Bergen: Which the...the owner hired Ron Terry to do or the...Michael Reem the architect hired the consultants or vendors for the drawings for the park. Whatever comes first will be submitted to Parks for...because Parks gotta approve both of those. Mr. Adams: Right and that will be done whenever that's done. 11 Mr. Van Bergen: Several months from now...probably three to six months. Mr. Adams: Alright...still within the window though. Okay. Mr. Goodenow: As part of that though the EA process right...you submit it then the County...they send it out to departments for review. They don't make an actual decision about it. Mr. Robinson: The OEQC sends it out. Mr. Goodenow: Right the EOQC sends it out right. When would the County being making a decision? Mr. Van Bergen: Well Parks is the accepting agency and it would be after...the FONZI...you know whatever...after the final report...they'd have to accept that. Mr. Goodenow: So that would be considerable amount of time from now maybe...more than six months. Mr. Van Bergen: It could be yes. Yeah these things take time. Mr. Adams: I'm prepared. Go ahead. Mr. Robinson: Can I ask...So February 2016...going back to that again... Mr. Van Bergen: Year and a half ago. Mr. Robinson: Yeah you were working for the Parks Department up until February 2016...that's what it said in your... Mr. Van Bergen: Yeah and then I went to Housing. Mr. Robinson: Then you went to Housing. Mr. Van Bergen: Correct. Mr. Robinson: So at Housing you had no involvement with this whatsoever. Mr. Van Bergen: No. Mr. Robinson: Okay. Mr. Van Bergen: No...and it was one of probably thirty projects that I was working on at Parks. It wasn't...the Waimea Park, Pahoa Park...the big parks that we were building at that time...that was my ninety percent of my focus. 12 Mr. Robinson: Then you left the County in December 2016 after being in Housing. Mr. Van Bergen: Yeah...my appointment expired yes. Mr. Robinson: You know one thing if I could correct you is I was on the YMCA board...the Y didn't go bankrupt they just ran out of money. They didn't file bankruptcy. Mr. Van Bergen: Thank you for that...yes. It was unfortunate cause I know you guys had a really nice plan at least the one I saw. Mr. Robinson: Just ran out of money. Mr. Van Bergen: Yeah...yeah and bankruptcy not the right term...you're correct. Thank you. Mr. Goodenow: They still have the other parcel. Maybe they'll do something else. Mr. Van Bergen: They got the 4.2 acres... Mr. Goodenow: Alright maybe it's time to move on to discussion if we could have a motion. Mr. Adams: So I would move that...that we approve the petition with the caveat that the work that is...that any work that's going to be done on the park...that there needs to be a firewall between what Mr. Bergen is able to do regarding that at least thru December 4, 2017. That make any sense? Mr. Goodenow: Yeah but we could always clarify it after we get some discussion in... Mr. Adams: Okay. Good. Mr. Goodenow: That would be...do we have a second? Mr. Robinson: Let me hear the motion again. Mr. Adams: Let's go back to the petition right. Mr. Robinson: Right. Mr. Adams: The petition essentially ask that the Ethics Board authorize Mr. Bergen to continue to work on getting the park developed on parcel 30 as part of the 61 lot development. It's not a denial of the 13 petition...but I think that there is a...there needs to be firewall in terms of his...I don't see where he can work on...so maybe this is a no...I don't see where Mr. Bergen can work on the park until December 5, 2017. So he needs to be precluded from working on the park... Mr. Robinson: Okay. Mr. Adams: In connection to anything having to do with the County...right. Mr. Robinson: So even though he left the County Parks Department in February 2016...it's the employment with the County as well. Mr. Adams: The phrase is within twelve months after the termination of the former officer or employee's employment or term of office with the County. Mr. Robinson: Okay I got it...I'11 second that. Mr. Goodenow: Alright so...discussion? Mr. Adams: Yeah so let me just.... Mr. Van Bergen: Can I ask a quick question on that? Mr. Goodenow: Please. Mr. Van Bergen: Term of office? Is that term at Parks office or term of Housing office? Mr. Adams: It's employment or term of office with the County. Mr. Van Bergen: So either one...doesn't matter? Mr. Goodenow: It will come up in discussion. Mr. Adams: Term of office would have to do if you were an elected official. You were employed by the County. Mr. Van Bergen: Correct. Okay got it. Mr. Adams: So...if you were following in the papers...you would know that I would like to make...I'd like to be able to have the statute support...the petitioner's when they come in but I also think we have to follow what the statute says...we don't write the statute...that's done by the Council...we need to apply it. This 14 is...the way this is written is that you have...anyone that works for...any officer or employee who works has twelve period right...when it has...when you have...when that individual had official duties that have...you're directly connected with something...been under your active consideration or you had obtained information which by law is not available to the general public. That I don't think applies here necessarily but the other two do. When you are a Director or Deputy Director...that puts you in a broad expand of things that fall under your purview even if you had specific duties you have the whole... Mr. Van Bergen: Yes correct. Mr. Adams: Nature of what's happened within the department as well. Given the information that you've applied to us here...it seems to me that the park and actually even your direct involvement with the subdivision of the parcel into the 6 acre and 4 acre portion...there's a specific...that's active consideration...I don't think we can run away from that and as a result...that means that you have...that was something you had direct connection with and you were directly concerned with according to using the term in the statute and so that triggers then that twelve month requirement to me. So the fact that you have...frankly I'm happy to hear that you had the ability to firewall yourself off from that so that whatever actions being taken by your employer for that...you're able to...that's an option for you...I just think that...for me that that...even if that wasn't unfortunately I would still have to come down on the fact that it's triggered therefore there's a twelve month rule in place on this particular situation...not excited about that because I think that the consequences of something like this is that we take good people...qualified people...they come in and then they go back to what they were doing and we're telling them they can't do what they were doing before they were coming in for twelve months. I'm not sure that's the desire of this but that is how I read this. Of course, I'm always open to hearing Counsel's wisdom on this. Mr. Yoshimoto: In terms of which question Board member Adams? In terms of your interpretation of the code or... Mr. Adams: What I just talked about...yeah. 15 Mr. Yoshimoto: That's consistent with my reading of the code. Mr. Robinson: From my perspective, if you want to be an employee of the County or take an appointed position...it precludes you from practicing your profession for a year afterwards. Mr. Adams: Right. Mr. Robinson: So it's...anyways it's difficult but I appreciate you coming in and being forthright about this...making the application and you know coming in...appearing before this Board because a lot of people just want to kinda skirted the issue...some people would and that's not good so... Mr. Van Bergen: Yeah and I want to do what's right so... Mr. Robinson: It's good that you do it that way. Mr. Adams: Is it okay if I ask the petitioner... Mr. Goodenow: Sure. Mr. Adams: Given our conversation about this and our understanding of this statute and your situation... Mr. Van Bergen: Yeah. Mr. Goodenow: Maybe I should ask...make my position first before you go into that line of questioning. You know it's troubling me and I'm trying to sort my thoughts out...I'm not totally there yet... Mr. Adams: Okay. Mr. Goodenow: So no former officer or employee within twelve months...okay so after termination of the former officer's employment or term of office for the County...that is clear to me that your last day with the County was December...that's the key time so I think we all agree with that. Assist or represent any person or business or act in any representative capacity...right...that's kind of what you're doing...you're employed by these people to really to get the...more like the...with the Planning Department right I mean it's...but this park is part of that...in relation to any specific case preceding contract application or pending legislation...with which the former officer or employee in the course of former officer or employee's duties with the County had been directly concerned. 16 Now you weren't directly concerned with the subdivision approval and the fact that this park is a requirement you know for that. You're only concern before was getting the property back from the Y...that was it. Mr. Van Bergen: Correct. Mr. Goodenow: That's all you did was we don't have this...this is before this whole new subdivision application came about right? You just wanted to get the part of the park back at that time. Mr. Van Bergen: Correct. Mr. Goodenow: Okay so...that's all he did...now... Mr. Adams: No no....that's not necessarily so. What they did is...is that they took that part...they got the parcel back but then they subdivided it so that it would be useable as a park for this lot 61... Mr. Goodenow: No.... Mr. Adams: That's what it says here...right here....right you divide...that you were involved in that subdivision of the park. Mr. Van Bergen: So the YMCA owned the 10 acres. Mr. Adams: Right. Mr. Van Bergen: And so the YMCA had to subdivide the park as the owner of the parcel. Mr. Adams: Right. Mr. Van Bergen: And so what I did was I worked with...the Y...Wayne Kamataki specifically because he was their representative to help them subdivide the parcel. Once they subdivision was approved...the Y still owned both parcels. Mr. Adams: Right. Mr. Van Bergen: And then they went ahead and deeded the 6.2 acre parcel to the County. Mr. Goodenow: This is before this new guy said I'm gonna use this to fulfill my requirement for my project. When does that timeline come in? 17 Mr. Van Bergen: Okay so...I don't want to repeat myself but I'm gonna repeat myself just so I'm clear. I just want to make sure I explain it correctly so as far as the timeline goes okay...lot 121...Hawai`i One 1 LLC developer...where the 61 lots are gonna be...in 2008...ordinance 9 of 2008...he got his rezoning subdivision went from I think AG 5 to RS 7.5...that was 2008...if you look at the ordinance I'm not sure how it was negotiated back then...I wasn't with the County at the time but they got this Condition C put in where he as an option could put a 3 acre...minimum 3 acre park...you know soccer field...it spells out what he needs to do within a quarter mile or so of the sub thing. Mr. Goodenow: Right so that's... Mr. Van Bergen: Somewhere along the lines before I got to Parks...he had approached Parks or it was on discussion...it was on this list of things I had to work on...frnd out you know and so...so the YMCA...my involvement specifically when I was at Parks was simply meeting with Wayne Kamataki...discussing how we could subdivide it...how much he needed to keep...what we need to keep and helping them subdivide it and then helping with the paperwork to go to Corp Counsel for the deed to get you know conveyed to the County and so forth. It was a land project. Mr. Goodenow: Sure and to me that's totally separate from this development of the new park...call it new but...when did...but the letter here.... Mr. Adams: The November 9, 2015 letter yeah? Mr. Goodenow: Is that the date on it I think. Mr. Adams: That's the date of it. Mr. Goodenow: Right okay...wait sorry this is...Hawai`i One 1 investors is the.... Mr. Van Bergen: Developer. Mr. Goodenow: The developer now? Mr. Van Bergen: They've been the developer always. Mr. Adams: Since 2008. Mr. Goodenow: Yeah okay...not though the previous ones that gave the land to... 18 Mr. Adams: That was Towne and now its... Mr. Goodenow: Okay so thank you. November 9, 2015...Hawai`i One 1 has asked Parks I mean the Planning Department...could we use this parcel that now...and to satisfy our requirement. Mr. Adams: They did before that this letter is the... Mr. Goodenow: The approval. Mr. Adams: Right. Mr. Van Bergen: Okay so what we have...what we have here in November 9th is you have a letter from Clayton Honma...the Director of Parks...Director of Planning and a memorandum basically saying the subdivision has been finalized...you can write this letter to tell the County actually had some land...kind of notifying that the Parks would like to yeah allow this developer to put the park there. Mr. Goodenow: At this time...where were you working November 9`h9 Mr. Van Bergen: I would've been at Parks...I think went in February... Mr. Goodenow: Oh it's on the letterhead. So...when you did the subdivision...so this is part of what you were doing at the time November 9`h...this is the plan...Hawai`i One 1 is going to develop this park on this parcel...okay. Well that makes it clear for me...I just wanted to make sure of that component. Mr. Adams: I saw where you were going with that and the issue for me was he actually was working on the parcel...the movement of the parcel...the idea that we were going to take this parcel...we're going to subdivide it...part of that's gonna then serve to be used as the condition in...Condition C...it's gonna be Condition C in this. That whole process...he was involved. Mr. Goodenow: I'm sorry I just had trouble with the date. Mr. Adams: Right and so that's the...that becomes the connection unfortunately that establishes the trigger for the twelve months. Mr. Goodenow: Right...so you were actively involved with...all be it...it's the beginning but it was the specific park development by Hawaii One 1. 19 Mr. Van Bergen: Yes. The purpose for subdividing the 10 acres was to get the County to get acres back in its name that it could...have this developer do Condition C on that parcel. Mr. Goodenow: I see. Well that does make it clearer for me that given that...you know...you weren't directly concerned and... Mr. Robinson: It's unfortunate but that's the way it is. Mr. Goodenow: Yeah I guess that is...so you can go and ask your next question. Mr. Adams: So right...so...just to make sure that there isn't some...you know...so when we say as we may hear shortly...that... I think that the way that we'd like to articulate it...this always looks great in the minutes cause I stumble all over myself it's wonderful...we...the way it looks is the parcel that is going to be used as...it's gonna be used as Condition C for this public park. That...your involvement in that in a representative capacity before any County agency is precluded until December 5, 2017. Mr. Robinson: Right. Mr. Adams: Is there some other way you can see around that given our...given the limits that we are operating within...in the statute? Mr. Van Bergen: Yeah...so as far as...the mindset I had coming here today was basically to say I'm working on this subdivision for 61 homes...the park is part of the subdivision...do I have permission to facilitate the park or do I need to let another vendor do the park portion and I'll just focus on the 61 homes and to make sure there is no issue with me working on the 61 homes.... Mr. Adams: Right. Mr. Van Bergen: Even though this park...cause this park is a small part of it but it is a condition for this...for these homes yeah. Mr. Goodenow: Right. Mr. Adams: I think that the...the fact is that the 61 homes at least you tell me...I'm not the expert in this stuff..that's not...I was concerned about that but that's not up for...that's not within my concern here...you weren't involved in...you didn't have an active consideration...you weren't directly concerned...you don't have any information which by law is not to...available to the general 20 public...none of those things gets triggered by your work with the 61 homes. The park is another issue so that I think is where we have to create the firewall in terms of your involvement with the park in a representative capacity in front of any government...County agency. Mr. Robinson: Right. Mr. Goodenow: Right yeah. Mr. Van Bergen: So just as an example...just so I'm kinda clear. If I'm in a meeting with Planning Department on SMA for the homes...design of the homes and then the park comes up because it's part of the overall thing...should I just be quite or do I need to leave the room...what... Mr. Adams: You need to tell...whether or not you are...I leave that to you frankly...the deal is that they need to know that you are precluded from representing Hawai`i One 1 in the considerations of that park you know until December 5, 2017. Mr. Van Bergen: Okay. Mr. Adams: So however you do that.... Mr. Van Bergen: Yeah. Mr. Adams: You're not able to speak to anything with the County in that regard. Mr. Van Bergen: Okay. Mr. Adams: I do want to ask a question though since we're talking about this. This is just so I make sure...of course the County can contract with a former officer or employee to act on matters on behalf of the County...but this is the opposite side...you're on the opposite side of the County in these conversations...you're dealing with the County not for the County. Mr. Van Bergen: That's correct. Mr. Adams: Okay. Mr. Yoshimoto: Board members before you make a decision though...I would like to go into executive session just to address one matter. 21 Mr. Adams: Okay. Mr. Goodenow: Alright I think that's a good idea...I'd like that...can I have a motion to go into executive session. Mr. Robinson: So moved. Mr. Adams: Second. Mr. Goodenow: For the purposes of consulting with the Board's attorney over liabilities and other such legal matters. Mr. Robinson: Absolutely. Motion and Vote: Mr. Robinson moved to go into executive session. Mr. Adams seconded the motion. All members voted aye. 10:41 a.m. The Board moved into executive session. 10:52 a.m. The Board returned into regular session. Mr. Goodenow: Alright. We're back in open session...proceeding with discussion Mr. Corp Counsel. Mr. Yoshimoto: Thank you Mr. Chairman. I would suggest that we ask the petitioner one particular question just to make sure we address everything. Mr. Goodenow: I think the honor should be Mr. Robinson's. Mr. Robinson: One particular question regarding... Mr. Goodenow: It was the date...was he terminated...break in service... Mr. Robinson: When you moved from the Parks Department to the Housing Department...did you have a break in service or were you terminated or did you just lateral change? Mr. Van Bergen: It was a lateral change. Mr. Robinson: So you didn't get...they're wanting a termination point...it was just that you went from Parks to Housing and you were still employed with the County the whole time...there was never like break in service? 22 Mr. Van Bergen: That's a good question. I don't...it might have been a short break...I don't recall if I had a couple days off or not but... Mr. Robinson: These are appointed positions correct? Mr. Van Bergen: Yes...I was appointed then de-appointed and then appointed again. Mr. Adams: So were you not employed then by the County for a couple days? Mr. Van Bergen: It's possible...I don't remember...honestly it would have been very short...I can't remember if HR coordinated or as one day off or one day was on or if I actually had...do you remember J? I don't recall...yeah so I don't want to say yes because I don't...it might have been...it would've been quick. Mr. Robinson: We're just going on the assumption that.... Mr. Adams: It's significant. Mr. Van Bergen: I don't think I was to be honest with you...but I...it could have been a day or two break but I don't recall. Mr. Adams: So any...so I would then...I would then suggest that within the motion we include the ability for petitioner to come back...that whatever we do is gonna be without prejudice anyway that the petitioner has the opportunity to come back and say you know I went back...looked at the records...I went back to HR and looked at the records I in fact my employ...actually it wouldn't matter... Mr. Goodenow: Well here's the... Mr. Adams: It wouldn't matter. Mr. Goodenow: What we were discussing and I... Mr. Robinson: It wouldn't matter... Mr. Goodenow: When we look at the code right...it's says no former officer or employee shall within twelve months after termination of the employee's term of service or what not right...the way this is written...you finished at Parks in February so just intuitively you know one might think hey that should be the year from February but the plain and simple language of the code says after termination it doesn't make a distinguishment right...so like I was saying well hey I could have been the Finance Director and then change jobs cause I wanted less stress...I became a janitor and 23 worked as a janitor for three years and then quit right and then got hired by a bank. That would make a difference as opposed to being the Finance Director...quitting...waiting three years right and then getting the job. It doesn't seem totally equitable to me...I think the code should be clarified but we're left with the plain and simple reading. Mr. Adams: As a matter of fact,just to make it even more ridicules. We actually have a situation where we have folks that were out of potentially out of government for eight years...are back now and will then be in government for however long...when they leave government this time...are they then liable for everything they did twenty years ago. Mr. Goodenow: Yeah...you know it doesn't... Mr. Adams: According to this... Mr. Goodenow: Yeah...that's a real conundrum that we have and we don't...I personally to be honest...I don't think there's a problem because hey that was over a year ago...it was minor but we got to follow the code...so at this point...but if you had a break...that would make a difference for me. Mr. Van Bergen: Okay I...if you want to...Mr. Adams suggest then I can go look...I don't...I might have had a couple days...I don't recall...would've been very short. Mr. Adams: I'm not sure it makes a difference actually. Mr. Goodenow: It would for me. Mr. Adams: He still...his termination of employment was still December 5`h even though he had the break back in February it was still December 5th . Mr. Goodenow: But he no longer did any work for the Parks Department...I think that you would have a...there would be issues of...well I don't want to talk about legal issues I guess in open session...so but I guess...assuming that you didn't...or should we...are you ready to move forward? Mr. Adams: Let's move forward. Mr. Robinson: Yeah because in the motion if he's in discussions with the Planning Department and the subject of the park comes up...he 24 just recuses himself...not participate in the discussion and picks up on all the other items regarding the subdivision ordinance. Mr. Goodenow: Right but come December... Mr. Robinson: Come December... Mr. Goodenow: Then you can talk about the park all you want. Mr. Adams: December 5'h noon time. Mr. Van Bergen: Okay. Mr. Goodenow: Alright well then if we're all clear on the motion...I don't know if you want to restate it or we're good with it... Mr. Adams: I was hoping to have it read back. Mr. Goodenow: Well we're.... Mr. Adams: Alright I'll try this again. Mr. Goodenow: Thank you. Mr. Adams: I move that the petition be denied and that it request the... Mr. Goodenow: I thought the petition was to accept the petition with the caveat that there would need to be a...that the petitioner could not... Mr. Robinson: Work on the portion dealing with the park but he could go ahead and continue what he's doing. Mr. Adams: So the specific request to the petition... Mr. Robinson: Right. Mr. Adams: The phrase here is...he'd like the Ethics Board to authorize him to continue to work on getting the park developed on parcel 30 as a part of the 61 lot development...so that portion is denied. Mr. Robinson: Denied. Mr. Goodenow: So you're gonna restate...we're gonna withdraw the earlier motion... Mr. Adams: We'll withdraw...we're restating it...we're amending it... 25 Mr. Yoshimoto: So let me clarify. Mr. Adams: I would love for you to clarify. Mr. Yoshimoto: I thought the original words were...motion to approve the petitioner with the caveat he cannot work on the park until after December 5th, twelve noon, 2017. Mr. Robinson: Right. Mr. Yoshimoto: I thought it was simple like that I thought. Mr. Robinson: Specific to the park. Mr. Yoshimoto: Yeah. Mr. Adams: Great. Mr. Goodenow: Alright. Mr. Yoshimoto: Is that... Mr. Goodenow: That's the original one were... Mr. Adams: Thanks for reading it back. Mr. Goodenow: Thank you. Okay so that is the motion... Mr. Robinson: And I seconded. Mr. Goodenow: Any last discussion about anything you want included in the order or are we ready to vote? Mr. Robinson: Ready to vote. Mr. Adams: I just want to make sure that there's isn't any confusion on your part on what we're talking about here. Mr. Van Bergen: My understanding is...I can work on the 61 lot subdivision with all that it entails and then any portions of that project that entertains the park...talking to Planning Department...Parks Department...coordinating contracts...whatever...I will refrain from until after December 5th of 2017. Mr. Adams: That's the deal. 26 Mr. Robinson: That's right. Mr. Goodenow: Okay. Mr. Van Bergen: We have other consultants that can pick that part up. Mr. Goodenow: Great. Alright so all in favor say aye...any opposed...seeing none...the motion carries. Mr. Van Bergen: Thank you. Mr. Goodenow: Thank you. Motion and Vote: Mr. Adams moved to approve the petition with the caveat. Mr. Robinson seconded the motion. All members voted aye. 5. UNFINISHED BUSINESS a. Petition No. 2016-20: Review draft order dismissing petition by Edward Underwood alleging that Prosecutor Mitch Roth was in violation of Sections 2-83 (Fair Treatment) and 2-84 (Conflict of Interest) of the Hawaii County Code of Ethics because he used his position to influence further private interest regarding a contested case hearing. Mr. Goodenow: As Mr. Adams has already recused himself...we're not able to move forward so this matter will be placed on the next agenda. Mr. Adams: By operation of law. Mr. Goodenow: By operation of law. Mr. Robinson? Mr. Robinson: Right. I just...I'm really bothered by this whole thing...I'm bothered by the fact that Mr. Underwood appeared before us after saying he filed his petition and saying that you know everything all over his original petition all had his State email address, State phone number...everything else and then in the course of the discussion tells us that he's doing it on his own time and then further in the course of the discussion...when we started asking him questions says well I've been able to work it out with Susan Case...and I'm bothered by the fact that you know what does that mean when he said I worked it out with Ms. Case that she is condoning his actions...does it mean that DNLR is condoning actions of Ed Underwood to what appeared to be intimidated people as well as intimidate Mr. Roth...is that what that means...I mean I think that we as the Ethics Board for the County of Hawai`i really should ask the Ethics Board of the State of Hawai`i to 27 because I don't think that it's fair for Mr. Roth that he flies there on his own time and you know we all heard the petition...does all of this and Mr. Underwood files against him...and starts off on this pretext of well I'm doing this on my own time but I mean it just...it's not right and I think that we have an obligation to ask the State Ethics Board to look into this matter because if Mrs. Case is condoning this then you know the people need to know that DLNR...Board of Natural Resources needs to know and the governor needs to know that this kind of action is being condoned and I know that there's investigation going on now...we've read in the paper about investigation going on about all of this but you know it's just that whole matter going after Mr. Roth I thought was so bad and I just think that we need to ask the State Ethics Board to look into it. Mr. Goodenow: Well I certainly agree your sentiments Mr. Robinson...I think if anything we would have to put that on a future agenda. Mr. Robinson: Okay. Mr. Goodenow: I mean to be fair to the Chair that she be here as well. Mr. Robinson: Okay. Mr. Goodenow: And technically we just have the draft order and we can't do anything without Mr. Adams anyway but I think you raised so very valid points. Mr. Robinson: Thank you for allowing me...it's been bothering me for a while and I wanted to get it out. Mr. Goodenow: I think we could put something on the next agenda...I'll talk to the Chair about that and let her know. Mr. Robinson: Great. Thank you. Mr. Goodenow: Alright. Next we have executive session...may I have a motion appropriately worded so that we can move into executive session. Motion and Vote: Mr. Adams moved to go into executive session. Mr. Robinson seconded the motion. All members voted aye. 11:05 a.m. The Board moved into executive session. 11:13 a.m. The Board returned into regular session. 28 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of March 15, 2017. Mr. Goodenow: Do I have a motion to approve the executive session minutes of March 15, 2017. Any discussions...all in favor say aye...any opposed...no. Motion and Vote: Mr. Robinson moved to approve the executive session minutes. Mr. Adams 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. Goodenow: For the financial disclosure forms we reviewed six. Do I have a motion regarding those six? Mr. Adams: I assume all of them are good. Mr. Goodenow: All good right. Mr. Adams: Then I moved that they be accepted and filed. Mr. Robinson: Second. Mr. Goodenow: All those in favor say aye...any opposed...motion carries. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure forms. Mr. Robinson seconded the motion. All members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII Mr. Goodenow: Any discussion? Mr. Adams? Mr. Adams: No. Mr. Goodenow: Alright...this will stay on our agenda for next time. Mr. Adams: Thank you. 29 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. Mr. Adams: Yes I would ask us to consider...we actually did not talk about our June meeting...there was a tentative schedule here but we only went through May when we met last in March...so I would ask that we make sure that we're good with the June 13`h date and that we also consider our July date. I assume that you have your Wednesday meetings which is why... Mr. Goodenow: Yes. Mr. Adams: So that's why moving these then to...so June 13th is a Tuesday...July 11`h is a Tuesday...those would be the next two months. Mr. Goodenow: Any comments from staff or anyone else? Alright...no discussion? If not...we need a motion to suspend the rules...can I have a motion to suspend the rules. Mr. Adams: So moved. Mr. Robinson: Second. Mr. Goodenow: All in favor say aye...any opposed...hearing none...that motion carries. Motion and Vote: Mr. Adams moved to suspend the rule. Mr. Robinson seconded the motion. All members voted aye. Mr. Adams: So I would move that we...identified June 13`h and July 11`h as the tentatively scheduled next meeting dates for the Board of Ethics...locations to be determined. Mr. Goodenow: Alright. Mr. Robinson: Second. Mr. Goodenow: All those in favor June 13`h and July 11`h be our meeting dates say aye....any opposed....hearing none...motion carries. 9. ANNOUNCEMENTS Mr. Adams: I do have a question...this will be in the minutes. In the...I'm not sure where we would include this so...I'm concerned...Counsel that with the change of administration that whereas between 30 March, April and November we were seeing a fairly regular number of folks that were bringing in their conflict of interest petitions associated with the new ordinance that went into effect in July...since the beginning of the year...I think we've seen one and that was from somebody who's used to doing and I just want to...I just...it might be worth sending a follow-up to the Corp. Counsel's...last Corp. Counsel's letter that went out to all the...that went out to at least Public Works and whoever else docs these RFP's to make sure that they are aware of the fact that...there is this ordinance and that their RP boards need to take that into consideration. For it to dry up like that...I'm kind of surprised. Mr. Goodenow: Mr. Adams...I mean one thing we could do if you wanted to...I don't know if it's really needed...just have Mr. Yoshimoto follow- up...but if you wanted to I think we would be allowed to amend the agenda...it's not a significant impact on...we could amend the agenda and put in that we request the Chair to send a letter out...I don't know if you want do that...just throwing it out there. Mr. Adams: Whichever the Vice-Chair thinks makes more sense...I just think...I'm a little...we have no way of monitoring this...we're completely dependent on the departments to do this...and if they're not checking for some reason...it could be that nobody's applying but with all the work that's being done in construction and all the stuff that's out there...I just...it's hard for me to believe that all a sudden...just like that we don't have anybody that has potential conflicts of interest...but... Mr. Robinson: I agree with sending a letter...sending a letter to the Mayor just pointing out you know it's gotten awful quiet. Mr. Goodenow: Yeah. Just put it out like that. Mr. Robinson: Be sure that you let all your cabinet know.... Mr. Adams: I leave it to the discretion of the Chair. Mr. Goodenow: We gotta amend the agenda. Mr. Adams: I don't know if we can actually...we'd have to for certainly...I don't know that we can amend the agenda...we're under Sunshine rules. Mr. Goodenow: I think its fine...what is the standard Mr. Yoshimoto? It's a... 31 Mr. Yoshimoto: Does not significantly impact I think a large amount of people... Mr. Goodenow: Significant...I think we're fine with amending. Mr. Yoshimoto: It's tenuous language I mean right you just gotta say it's not gonna be a big deal if people don't get notice of it. Mr. Goodenow: It's not like we're taking action on something that has any real... Mr. Yoshimoto: Right...it's Board's discretion right it's not... Mr. Goodenow: Would you care to make such a motion? Mr. Robinson: I make a motion that we send a letter to the Mayor and just indicate that we would like to insure that he informs all of his cabinet to inform their staff. Mr. Adams: But I would ask before we take that up that we...amend the agenda...the current agenda for the purposes of making a motion to send a letter to the Mayor. Mr. Yoshimoto: But when I sit here and think about that whether we can meet that standard and considering the fact that you know that we usually media coverage...if...I recommend against it. Mr. Goodenow: Alright. At the Campaign Spending we amend the agenda all the time. Mr. Adams: We'll just include this on the next agenda...to deal with it on the next agenda I guess. Okay. Mr. Goodenow: Yeah let's do that. I think on the agenda...could we put down though requesting the Mayor exactly as Mr. Robinson's said...I like that...that's what I'd like to see on the agenda. A letter to the Mayor informing his cabinet about the fact that we haven't... Mr. Robinson: Adherence to the... Mr. Adams: And this would be...right I assume there'd be a motion so it wouldn't just be a discussion item...right... Mr. Goodenow: Yeah. Mr. Adams: Okay. Mr. Goodenow: Alright...with that do I have a motion to adjourn.... 32 • Mr. Robinson: Motion to adjourn. Mr. Adams: Second. 10. ADJOURNMENT Mr. Goodenow adjourned the meeting at 11:21 a.m. Respectfully submitted: \CL, Emily Hiray ❑ Secretar 33