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Home My WebLink AboutCOM 0044.133 2020-2022 �/Cort COHb,4y Thomas C. Bierlein 76-4397 Leilani Street Kailua-Kona,HI 96740 Via email: cowicilrestimonv(a)hawaiicounrt'.eov and to each Council Member February 1, 2021 cac County Council County of Hawai'i Hawai'i County Building , c--w 25 Aupuni Street .. Hilo, Hawaii 96720 Re: Comm. 44 Appointment of Zendo Kern as Director for the County of Hawai'i Planning Department Zoom Hearing Date/Time: February 3,2021 a 9:00 AM Dear Council Members: In the midst of all the pressure being applied on you to defer to His Honor the Mayor, I respectfully invite you to independently focus on the undeniable fact that Mr. Zendo Kern cannot lawfully, ethically, or practically serve as Director of our Planning Department. Confirming I-Iis Honor's appointment will have long-term, costly, and irreparable consequences. As I have said in the past, I have supported our Mayor and do not oppose Mr. Kern's appointment for personal reasons. If this were a matter of hiring a"goodguy" or someone with an amiable personality, I would certainly support Mr. Kern's appointment. But, this is not a matter of personality. It is a legal matter fraught with insurmountable ethical and practical issues that oblige the Council to reject His Honor's appointment. Your decision on the appointment is of utmost significance for several reasons, not the least of which is that the position is perhaps the second most powerful in our county, second only to the mayor. It is a position that can and will impact our island for generations. The candidacy must not be taken lightly. Because of its significance,you are duty bound to apply the utmost scnitiny. A mere "rubber stamping" of His Honor's appointment will be a serious misfeasance and breach the trust you must legally and ethically uphold by virtue of your position on the council. Despite arguments to the contrary, the law is clear on the mandatory minimum qualification requirements for the position. Our Charter is not ambiguous. It plainly states that the candidate shall meet certain specific requirements in terms of education and experience. As repeatedly shown at the previous Council and Ethics Board hearings, Mr. Kern does not meet the clearly stated mandatory minimum requirements. Acting Mayor Lee E. Lord recently authored a letter attaching Mr. Kern's addendum to his resume. Unfortunately, Mr. Kern's "Supplemental Information and Explanation"provides neither"Information"nor"Explanation"relevant to the legal issue before the Council. It provides only his arguments and those arguments fail in the face of the legal issue at hand. Comm. No. 114'14" Ref.To: ?WAWA( Ref. Date- FEB 9(131, From the desk of Thomas C. Bierlein The legal issue before you is whether Mr. Kern's experience meets the requirements of our Charter. By Mr. Kern's own statements, they do not. He has identified no person or entity that provided him with any formal training and experience in a responsible planning position. He has identified no employment from which he would have been able to gather no less than three years of experience in an administrative capacity. Mr. Kern has been self-employed since the age of 24 when he created Superior Development Group. (See attached report from DCCA State of Hawai'i re: Superior Development Group, LLC, with registration date of June 28, 2004. Compare to Mr. Kern's Resume attached to His Honor's letter of December 11, 2020, wherein Mr. Kern represents to you and the public that he created his company in 2003.). Regardless of whether.Mr. Kern's misrepresentations have been accidental or intentional, the fact remains that "self-employed"means that for at least the past 16 years he has been his own employer. It was therefore impossible for him to be trained or educated by another person as his employer. Mr. Kern highlights his involvement with the Ulupono Center project. It is interesting and curious that Mr. Kern fails to disclose the fact that he was contemporaneously co-named in Foster Kern, LLC, the owner and developer of the Ulupono Center property. The above examples of the confusion surrounding Mr. Kern's training and experience as he argues it to be and as we find it to be in the public records is further confounded by the fact that he has created involved in no less than fourteen(14) different companies doing busines in Hawai'i County. They are listed below with their respective status in parenthesis. 1) Wara Contracting, LLC, a Hawai'i LLC, (Terminated) 2) The Wara Group, LLC, a Nevada LLC, (Revoked) 3) Mind Mastery, Inc. a Nevada corporation, (Permanently Revoked) 4) Ulupono Development, LLC a Hawai'i LLC, (Adm. Terminated) 5) Superior Development Group,LLC, a Hawai'i LLC, (Adm. Terminated) 6) SDG Contracting(Adm. Terminated) 7) 30th HPP, LLC, a Hawai'i LLC (Adm. Tercninated) 8) The Wara Group, LLC, a Hawai'i LLC, (Inv. Revoked) 9) Zendo Kern Enterprises,LLC, a Hawai'i LLC (Adm. Terminated) 10) Internet Terminals Hawai'i, LLC, a Hawai'i LLC, (Terminated) 11) Zendo Kern Planning Consultant, LLC, a Hawai'i LLC, (Active Registration) 12) WKL Enterprises, LLC, a Hawaii LLC (Active Registration) 13) Kern-Kuwahara Ventures, LLC, a Hawai'i LLC (Active Registration) 14) Taialoha Co., Inc., a Hawai'i Domestic Profit Corporation(Active Registration) Mr. Kern's resume and subsequent addendum do not contain full disclosure regarding his "employment" because he identifies only four(4) of the fourteen (14) companies he has owned and operated. He failed to provide you and the public with information regarding the licenses for three (3) of his companies that were revoked, two (2) that were terminated, and five (5)that were adm. terminated(presumably "administratively"). Mr. Kern should be compelled to present independently verified information regarding the revocations,terminations and his current • Page--2 From the desk of Thomas C. Bierlein involvement with his companies that remain active. Please be mindful that the Board of Ethics recently required Mr. Kern to produce an "exhaustive list" of his former and current clients. (To my knowledge that list has not been produced, at least not made public). I encourage you to require he likewise produce an exhaustive list of his companies and employers both here and on the mainland. Mr. Kern testified to the Board of Ethics that his only current involvement was opreating a "Planning and Project Management firm (Kern &Associates)" and had ceased any involvement with that single entity. The public records suggest he remains active in four(4) additional companies: Zendo Kern Planning Consultant, LLC; WKL Enterprises, LLC; Kern-Kuwahra Ventures,LLC; and, Taialoha Co., Inc. Please recall that it was his company, Taialoha Co., Inc., that recently applied for and was paid $60,500 to cover the company's payroll. Mr. Kern has adamantly denied any involvement with the company, that he was an employee, or benefitted in any way from the free money loan. Current public records suggest otherwise: License.ID: Actin/Inactive: Status Expire Date: CT-11.277 ACTIVE CURRENT,VALID&IN GOOD STANDING> 09/30/2022 L ;;rel License !ante: Jrx.de/Prefa.a rsnal Name: Entity. Original I.F_ensI t')aa, TAIALOHA CO INC` -- CORPORATION , 11/06/1981 toss Prefix Specii i Prsv'ileeo: Re.t ctten: _ Education Code: Bu vte.ssCo e: Gnat-1410/1S imitation Diisixtess•tdrress:` -- - 194 WIWOOLE ST HILO'H1 96721) EMPI._OYEE_S Ifie,14.6C9TakkeltF:ake," `ss coiuci t&oPShoW "l j. ;Wel mauts Position Status -Employee Name -. Dual.Rine Position: Lic ID: Lit Status4' e, Effective RESPONSIBLE MANAGING PRINCIPAL KERN ZENDO CT'6035 CURRENT,VALID 8,IN 0000 0€127/2016 EMPLOYEE STANDING Page-- 3 From the desk of Thomas C. Bierlein 411.:PPLidan data: 4 TaaIo is Co I he£;;Fir Ht. a , Taialoha Co., Inc. Entity: C.orpQ,ra.tion Industry: Commercial and Institutional Building Construction Location: Hilo, HI Tweet This•Search All PPP Data Taialoha Co.,Inc.is a corporation located at 101 Aupuni St Ste 165 in Hilo.Hawaii that received a Coronavirus-related PPP loan from the SBA of$60,500.00 in April.2020. There are the myriad of ethical implications involved when a person with absolutely none of the qualifications required by our County Charter for an Executive position in our government has longstanding personal and financial relationships with off-island and on-island developers on whose behalf he has been lobbying the Planning Department for more than a decade to permit his clients to develop our island. The appearances of impropriety are overwhelming and cannot be ignored. I respectfully ask you to independently inquire of Mr. Kern regarding his disclosures, acts and omissions as they relate to his zealous pursuit of this public service/trust director's position and his ethical fitness to fulfill the requirements as Director of the Department of Planning. I submit that the facts require his disqualification. Lastly, from a practical perspective, Mr. Kern's appointment would result in a downstream hobbling of his employees' ability to perform their jobs independently and ethically. Mr. Kern has publicly admitted that he is forced to recuse himself from all contact with his department employees regarding all pending applications and future communications with his current and former clients, their successors, and all the properties involved. He has not yet identified how he and the department can reliably effectuate that process. One night go so far as to assert that the entire department could not ethically process any matters relating to Mr. Kern's clients, former clients, or their successors because by virtue of his executive position his subordinates could not independently, fairly, or ethically be involved. In conclusion,because the law and ethical considerations disqualify Mr. Kern, and because his service as Director would practically hinder the department's ability to perform its duties,I strongly urge the Council to reject the appointment of Zendo Kern as Director of the County of I-Iawai'i Planning Department. Sincerely, /s/ Thomas C. Bierlein Page--4