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HomeMy WebLinkAboutCOM 0044.007 2020-2022 C COUNTY CLERK '1 COUNTY ,OF HAWAIII RECEIVED COMM.44 - Written Testimony �d'5i Date—JAN 0 3 2021 My Name is David Blancett-Maddock, I am a full-time permanent resident homeowner in Kona, Big Island. I am here today to offer my expert opinion in opposition to the confirmation of Zendo Kern as Planning Director as part of the public hearing process. I am a licensed attorney and a former Deputy Prosecutor for Hawaii County_ I have spent the vast majority of my working life in government service accumulating an extensive background in government law, planning and administration. Seven years of that was in planning for major municipalities including the City of Los Angeles, Allegheny County, and the City of Pittsburgh. I also consider myself a close personal friend of our Mayor Mitch Roth. While Mitch is my friend, he is also our Mayor. And, No one is above the law, not even the Mayor. Before we go further, I must address the Mayor's letter of nomination. By letter dated December 11, 2020, the Mayor presented his nomination of Zendo Kern to Council for confirmation to the position of Director of County Planning, retro-actively to be "effective at 12:0 noon on Monday December 7, 2020. That is significantly before the date or the delivery of his nomination letter to this Council. Although the Mayor may use secret advisory panels to try to add a dubious legitimacy to his choices, there are no secret appointments under our Charter. The Mayor is not above the law. Under our Hawaii County Charter: « Mayor Roth cannot secretly appoint and place Zendo Kern in control of the confidential information of the Planning Department prior to the delivery date of his December 99, 2020 nomination letter. Coom . o `t Ref. To: W& Ref. Mote J - 5 2021 • Mayor Roth cannot compel this Council to pay Zendo Kern for his services under a secret appointment. • Mayor Roth cannot claim a secret appointment to cut short the 60 days statutorily provided period for this Council to review this nomination. Section 13-8. Term of Office of Department Heads. (1990,Prop_ 9, sec. 2.)' This Council must nullify the scope of nomination in all or part as an unconstitutional abuse of power. It must not convey retroactive pay, retirement rights or access or truncate the allowable time for this Council's review of a nominee under the Charter. Regarding the merits - During his campaign for Mayor, Mitch Roth used his own extensive qualifications in administration of a government department and his post- graduate education to argue that his Hawaiian born opponent was not qualified to administer the duties of a complex government during these critical times. He promised an administration that would be the best educated, and trained in government administration possible. A superior administration, experienced in government administration and ready to hit the ground running. As my mentor Virginia Isabell told me, don't listen to what they say, watch what they do. This weekend the Mayor disrespected the voters and insulted this Council in a West Hawaii newspaper interview when he accused us of making this about personality. Do not be confused by the spin of a politician. The Mayor has created this problem by putting forth his grossly unqualified close personal friend and campaign contributor. 1 Section 13-8. Term of Office of Department Heads. The term of office of department heads, deputies and assistants shall be co-terminous with that of the appointing authority; provided,that where a successor has not been appointed, a department head, deputy or assistant, as the case may be, shall continue in office pending such appointment. The council shall confirm or deny confirmation within sixty days of the appointment of any department head. If the council does not act within sixty days,the department head shall be deemed to be confirmed. The department head shall take office upon appointment but shall not continue in office if the council denies confirmation. (1990, Prop. 9, sec. 2.) (emphasis added)(sixty days clock for review did not begin until notice of appointment by letter was delivered and incumbent or prescribed successor continued in office until appointment notice was perfected). Well Virginia, this nomination is a disrespectful embarrassment. The mayor rushed to retroactively give this $150,000 executive position with benefits to a close friend who is unqualified and cannot even be here for his own confirmation hearing because he is already on vacation. And he's already removed the qualified woman from the deputy director position and replaced her with a man. The new Deputy Director is also on vacation. This is reminiscent of the old attorney's cardinal rule for representation of a criminal defendant — if your client's guilty, don't put him on the stand— put the burden on the other side. Do not be confused. It is not this Council's burden to prove that Zendo Kern is not qualified or unfit for this position - It is the Mayor's burden. If this Council does not find that it has been demonstrated that this candidate possesses the requisite qualifications or fitness under our Charter, this council must deny the nomination.2 The Charter clearly calls for very specific advanced education and years of public institutional administrative experience: Section 6-7.2. Planning Director. (a) The planning director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. The planning director shall have had a minimum of five years of training and experience in a responsible planning position, or a degree in planning, engineering, architecture,geography, or another planning-related field and three years of experience in a responsible planning position. No less than three years of experience shall have been in an administrative capacity. (b) The director shall be the chief planning officer Section 6-7.2. Planning Director. (emphasis added) ' Section 13-3.Appointments. No appointing authority shall appoint any person to any office or position which is exempt from the civil service laws until satisfied by proper investigation that the person to be appointed is fully qualified by experience and ability to perform the duties of that office or position. (1990,Prop. 6,sec. 1 and Prop. 14,sec. 1;2000,Prop. 2, sec. 11,Prop. 3, sec.2, and Prop. 7, sec. 12.) Mayor Roth comes before you today with a nominee who has virtually none of the statutorily required qualifications necessary for you to confirm. In a nut shell, Zendo Kern simply does not meet even the bare educational, training and experience minimums under the Charter. In my opinion, he would likely not even qualify for employment in most or all rudimentary level County Planning positions that he will be expected to oversee and manage. Positions held by qualified educated experienced hard-working professionals paid half his salary. I cannot imagine this nominee's resume even passing the application stage for a non-entry level planner. The Charter expressly recognizes the necessity of relevant advanced education and institutional administrative experience and places express requirements for this position.3 Mayor Roth has not demonstrated how this nominee holds these requisite qualifications under the Charter. Zendo Kern simply does not have them. Zendo Kern lacks the advanced education, specialized training and institutional experience required under the Charter. Zendo Kern presents no post-high school degree or training, for a position in a profession that warrants post-graduate education and training_ Zendo Kern did not complete his public-school education, according to the disclosures, but only attained his high school degree through home schooling after 10th grade, It is unheard of for a senior level municipal planner not to have been educated beyond the high school level and the charter requirements reflect this. 3 Section 6-7.2. Planning Director. (a) The planning director shall be appointed by the mayor, confinned by the council and may be removed by the mayor. The planning director shall have had a niffilmum of five years of training and experience in a responsible planning position, or a degree in planning, engineering, architecture, geography, or another planning-related field and three years of experience in a responsible planning position. No less than three years of experience shall have been in an administrative capacity. (b) The director shall be the chief planning officer i I 1 I { S f Zendo Kern has never been employed in public administration nor ever administered any public administration function or its equivalent. Zendo Kern does not evert have any formal training in municipal planning. It is unheard of for a Planning Director to have no public administration experience. It is certainly unheard of for a Planning director to have no advanced education, training or public administration experience. Zendo Kern has never had to budget, supervise or administer a public department_ He has no experience with union grievances, governmental day to day operations, or civil service progressive discipline. He has no experience upholding the public trust or our laws. Look beyond any eloquently crafted rhetoric you may hear today. Instead, look to the substance of the issue and evidence before you today. The function of municipal planning is an institutional function of this government for which proper education, training and experience are essential. A planner must be well educated versed and experienced in the area of planning. In this profession, a bachelor's degree represents only the lowest base educational minimum, with post-graduate degrees preferred and generally replaced only by extensive and clearly equivalent work experience. It is unheard of for a senior level municipal planner not to have been educated beyond the high school level and the charter requirements reflect this. A senior level planner must have extensive institutional training and experience in the function of professional municipal planning. Mr. Zendo has never been employed in public administration nor ever administered any public administration function or its equivalent. It is unheard of for a Planning Director to have no public administration experience. Mr. Zendo has never had to budget, supervise or administer a public department. He has no experience with union grievances, governmental day to day operations, or civil service progressive discipline. The Municipal Planner is charged with upholding the rules, regulations and laws of the municipality, both in spirit and to the letter. While Zendo Kern claims self-taught experience from challenging and attacking these foundations of social order, he has no i 3 i accredited or institutional training or experience in the fundamentals of municipal planning function. It is one thing to tear our institutions and laws down on behalf of developers and private clients, It is another to protect the public and its trust. But a director must have even more. A director must have proven and specific education, training and experience with administration of a government department. They must understand and have established applied skills, training and experience in matters peculiar to the administration of government. First-hand experience in government budgeting, contracts, grants management, fiscal controls, employee progressive discipline, and bargaining units; departmental policies and procedures; governmental rules and regulations-, and institutional ethics are essential to the structuring, maintenance, supervision, management and administration of a planning department and its civil service employees. This Nominee fails to demonstrate any of these. And what does this nomination say about fitness and accountability — a rushed retroactive appointment and a week later the nominee is already away from the office on vacation and not even present at his own confirmation hearing. No qualified planning director would act this way. It is disrespectful to the position. A $150,000 salary may not mean much to this candidate, but to the men and women who must work for him and have struggled to achieve their advanced degrees yet earn half of that amount after long years of training and experience and hard-earned service to their community in their chosen profession, it is demoralizing. This lack of demeanor and judgment speaks to fitness for duty. And bestowing such a high position to an unqualified candidate has serious long- term consequences on the institution. It undermines not only employee confidence but public trust. The public sacrifices in order to provide our county government with a pay scale that can attract the best and most highly qualified candidates. $150,000 is a lot of taxpayer money and a big chunk of the already small and stressed county budget, especially when so many of our people are out of work. I 1 S 4 But most importantly, placing an inadequately educated, untrained and inexperience j captain at the helm of the ship on the most treacherous seas of our lifetime is reckless. Under the express provisions of the Charter, unless this Nominee has the required qualification, you must not confirm the appointment.¢ i Finally, there are serious independent issue of fitness for duty. I believe that this candidate has extensive conflicts of interest because of his long history of representing developers, illegal non-conforming uses and other parties, many of whom will come before him in his new position as planning director. Full and adequate disclosure for this nominee will be problematic and will need to be publicly disclosed and monitored. Because the decision to recuse from conflicted decisions will be at the nominee's own discretion, this opens the door to a serious risk of litigation and will cause serious harm to the public trust. The expense of litigation will land squarely on this County and the taxpayers. Conclusion It is my opinion, that any retroactive appointment is prohibited by the County Charter on its merits as this nominee does not meet the Charter requirements for qualifications. It is also my opinion that the Mayor's attempt to install this nominee and confer the power, access and benefits of this office on him retroactively constitutes an abuse of power and is invalid exercise of executive power under the Charter. I urge this Council to decline retroactive appointment, vote NO to confirmation, and encourage our new mayor to choose a qualified candidate from the many qualified properly trained, educated and experienced Big Islanders, who have demonstrated their dedication to our government and the people of our island. 4 Section 13-3.Appointments. No appointing authority shall appoint any person to any office or position which is exempt from the civil service laws until satisfied by proper investigation that the person to be appointed is fiilly 3 qualified by experience and ability to perform the duties of that office or position_ (1990,Prop. 6, sec. 1 and Prop. 14,sec. 1,2000,Prop. 2,sec. 11,Prop. 3,sec.2,and Prop. 7,sec. 12.) i I 3 ff 3