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HomeMy WebLinkAboutCOM 0044.135 2020-2022 PtCou11&. CORM.q� COMM.44 - Written Testimony - David Blancett-Maddock, 01/15/21 My name is David Blancett-Maddock. I am a Kona Resident home owner in opposition. First, I want to thank you for your careful deliberations and decision not to confirm Zendo Kern for Planning Director. My wife and I and the many opposition testifiers have been here with you through this difficult and unusual confirmation process. I want you to know that we are proud of you for standing up for the people of this island and our County Charter. This has been extremely difficult and stressful for us, and we know how difficult it has been for you to stand up against the unprecedented intimidation and bullying. rri L0 It is time to stop allowing the administration to move the goal posts. I 21.4 Second, I have spent the vast majority of my working life in government service accumulae� a»`= '. extensive background in government, law, planning and administration. Seven years of tha'fwas`" in planning for major municipalities including the City of Los Angeles, Allegheny County, and the City of Pittsburgh. I am a licensed Hawai'i attorney. I am former Hawai'i County Deputy Prosecutor in the Appellate Division of the Prosecutor. I am the primary person that former Prosecutor Roth chose to represent the Hawaii Prosecutor's Office before the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court of Appeals. Appeals were what I did for this County Mitch chose me based on my qualifications. I have clerked in the two Pennsylvania intermediate courts of appeals, both the Commonwealth Court and the Superior Courts of Pennsylvania. I served as an Appeals Referee for the State of Pennsylvania for over a decade, taking testimony, ruling on the admissibility of evidence, making findings of facts and conclusions of law and issuing appealable decisions of law in thousands of cases. I am still licensed there and in Hawaii, and in the United States Supreme Court as well as several Federal Courts. I present my credentials and experience because it matters. Page 1 of 6 Comm. No. ��-- '('I 9 Ref. To: p. e Ref. nate FEB - 3 2021 I can relate to the barriers that Mr. Kern faced growing up poor. I was the first in the family to attend college. I came from a very poor family. My father was a disabled minister and we lived on Social security and his $45 a week salary plus a rent-free parsonage. I know what it was like to have clothes that were handed down or came from discount stores like K-mart. My parents didn't understand college but they knew that it meant something. So, we sacrificed, and I worked five jobs to get through college And I worked in government until I had accumulated the experience and training necessary to qualify me to take on greater responsibilities, not only for myself, but for the people who ultimately worked under me, and for the government and institutions that stand as a fragile but essential protection to all of our freedoms and rights. I wanted to be able top ractice law. So, I went back to school. I worked full-time as a Senior Planner for the City of Pittsburgh, and attended law school, full-time at night. Five days a week for 4 years, I got up early in the morning and finished my day riding home on a bus at midnight, after a full day of professional work and a full-time graduate workload. There were no special allowances for my conditions. My wife and I sacrificed our time, finances and recreation. I then clerked for judges, training and gaining experience researching, preparing bench briefs and drafting decisions. I worked at a law firm. I accepted pro bono representation of our local community in appeals. When I came to work for Mitch as his Assistant Deputy Prosecutor for Appeals — I was qualified. And I needed to be qualified. The job required a qualified Attorney. Someone trained, licensed and experienced in the law. People's lives and freedom, and the integrity of the institution hang in the balance. When so much is at stake, society expects minimum qualifications. But rarely do we accept the minimum, when important matters are on the line, we seek out the best... at least the best we can afford. We never accept the unqualified. Page 2 of 6 And the people expect training and experience that is directly relevant. Not only do I go to a doctor when I need one, I go to the most qualified physician for the job. If I need surgery, I go to a surgeon. If I have broken bones, I go to an Orthopedic Surgeon. Heart — a cardiologist. Education, training and experience matter when so much is at stake. This confirmation is a political process. You, as members of the legislature, are the persons qualified to determine whether this nominee is qualified or appropriate to fill this important position. The Mayor has made this confirmation adversarial at every turn. But it is not. It is a political process. Your decision to confirm or not confirm is a political question under the law. A political question is a matter within the exclusive domain of the independent branch of government. The courts will generally defer to and even expect the political branch to exercise its interpretation and political judgement. Your judgment is really only subject to a constitutional violation or violation of the law. So, I tell you, as a matter of professional opinion as a licensed and experienced appellate attorney, that a lot of what you've been hearing is a lot of kohu If a court were to review your decision to deny confirmation, it would be looking to see if you broke the law, not whether you applied careful and deliberate consideration to the interpretation of your Charter. Corporate Counsel was called in to tell you that it raised what in layman's terms would be called a "red-flag". She disagreed with your discretion. She told you that in her opinion that, "you can use just whatever administrative experience." Yet the Charter provisions governing your decision powers are broad. Charter provision specifically requires that "[n]o 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 Page3of6 of that office or position. Section 13-3. Appointments. (1990, Prop. 6, sec. 1 and Prop. 14, sec. 1; 2000,Prop. 2, sec. 11,Prop. 3, sec. 2, and Prop. 7,sec. 12.) Corporate Counsel's interjection seems disingenuous and a non-sequitur. The Charter is clear that you cannot "use just whatever administrative experience"you choose. As you can see, you are charged with determining whether the "experience" qualifies the nominee "to perform the duties of that office or position." Experience, including administrative experience must be administrative experience that support the specific abilities of the nominee "to perform the duties of" the Director of Planning. Further, the qualification provisions of the Charter establish the minimum criteria for possible qualification. Just because a nominee meets those minimums does not mandate confirmation. Such an interpretation reads too much into the statute. The Statute only limits - this body must NOT confirm a nominee who possesses less than the minimum qualifications. You do nothing wrong by voting to follow the Charter. The statute precisely calls for you to be properly "satisfied". Your decision to deny confirmation shows your diligence in enforcing your oath and upholding the Charter. Your decision is firmly grounded in authority. The National Center for Education formally acknowledges the proper scope for training, education and experience in this field. It provides an authoritative definition for Public Administration that provides an objective standard for evaluating the administrative experience at issue. It defines Public Administration education as follows: Detail for CIP Code 44.0401 Title: Public Administration. Definition: A program that prepares individuals to serve as managers in the executive arm of local, state, and federal government and that focuses on the systematic study of executive organization and management. Includes instruction in the roles, development, and principles of public administration; the management of public policy; executive-legislative relations; public budgetary processes and financial management; administrative law; public personnel management; professional ethics; and research methods. National Center for Educational Statistics. (01/15/2021, https://nces.ed.gov/) Page 4 of 6 As I pointed out in previous written and oral testimony, the "red-flags" are raised by those who seek to install a nominee based on standards and criteria that fall below the mandate contained in the charter.1 1 In these hearings, you have heard various arguments in support of this nominee, some from the Mayor, some from developers and some from council members themselves: 1. The First argument was that you know what the charter says, but we need change and you want to support the mayor—let him try things his way, give him the chance to see if it works. There is no provision or exception in the law for this. 2. Another argument was that we need change and that you can't have change doing things the same old way. That using the same old standards will get the same old results, and we need to move on to a new way of doing things. We need to make it easier for development and business in the community to thrive and prosper. There is no provision or exception in the law for this 3. Another argument is that That there is a precedent for not strictly following the Charter. That you have confirmed a nominee before who didn't have these education or other qualifications under the Charter and it turned out to be a success. That Education and experience aren't really all that important. Maybe the nominee needs the chance to prove himself. I've heard this very argument from Nominee Zendo Kern on behalf of his client with a non-conforming illegal use in zoning matter in this county. He argued that the zoning body had been convinced to let someone break the law before and let them have their admittedly illegal use. He argued that established a precedent—and thus, the body was free to continue to ignore the law. Ignoring the law is not a precedent—it is just breaking the law. There is no court precedent for this body ignoring the provisions of the charter or violating their oath and duty. 4. The third argument came from the Mayor who said something to the effect that "this council has made me certain promises and I know that you will keep them." (paraphrasing) Any promises between anyone on this Council and the Mayor to agree to purposefully violate our Charter not only violates the Charter, but violates both the Mayor's and that council person's oath of office and their ethical duty to represent and disclose. If this is true, I object and call for disclosure. This Council's promises are to us,the people of the Big Island. 5. The fourth Argument for confirmation, was to the effect that, "I've heard the nominee testify about how he has handled specific situations, and I am convinced that he has the proper judgement and experience to handle this position. The Charter does not have any provisions for substituting a council member's opinion for anything less than the requisite number of years of combined education, training or experience. Even if you are personally impressed with the nominee,you must find the requisite objective specified number of years required by the Charter or Vote NO to confirm. (See 01/15/21 COMM.44 Testimony David Blancett-Maddok). Page 5 of 6 • What we did not hear was Corporate Counsel intercede to juxtapose or even mention the over- reaching of arguments of those proponents on this body who read-in qualifications that directly conflicted with the minimum Charter requirements on its face. Instead, it is those top-five arguments, made by the proponents, that would form the basis for a legitimate judicial review on appeal to a political question decision — not your diligent efforts to "satisfy" yourselves that this nominee "is fully qualified by experience and ability to perform the duties of"planning director. It is time to stop letting the administration move the goal posts. You made the right decision to vote NO on confirmation of Zendo Kern for Planning Director. We are proud to have a strong County Council who listen to the people, uphold our laws and protects us. Thank you. Page 6 of 6 COMM.44 — Supplemental Written Testimony - David Blancett-Maddock, 02/03/21 My name is David Blancett-Maddock opposition to Zendo Kern confirmation comm.44 I submitted a lengthy written testimony for today and I ask you to read my testimony disputing Corporate Counsel's legal conclusions at the last hearing. I submitted a lengthy written testimony and came here today to make two points. • First to thank those of you who voted against recommending the confirmation of Zendo Kern, and to thank for standing up for enforcement of our charters and laws and for honoring your oath to represent the people of this island and protect and serve our best interests. • Second, to summarize my written testimony disputing Corporate Counsels legal conclusion at the last hearing. Because of the events today, I was unable to expand on that testimony adequately. I had only 3 minutes I protest to this unfair restraint on testimony. I feel compelled to address the alarming written testimony that was introduced into today's record on behalf of Zendo by Nancy Carr-Smith. Nancy's written testimony is in the record, but I believe it warrants repeating. Nancy stated, in pertinent part "I am mostly speaking to those of you who have shown opposition during the previous meetings." "Corporation Counsel has advised you that the minimum qualification have been met. Are you comfortable going against the legal advice given to you?" "What kind of legal consequences may you face, personally or otherwise for going against the legal advice given you?" "The Mayor wants the appointee to be his Planning Director" Page 1 of 4 "By voting against the Administrations wishes, do you risk consequences for your district? " "Will your district be given less than it otherwise deserves if you are the one representing it?" "I wonder how your constituents will feel about that?" That ends my quotation The question we will be asking is why our Mayor condones unethical threats and intimidation in his name. This is not just some random constituent. Correct me if I'm wrong, but I believe it was Nancy's husband who testified about his key role in the vetting and selection of at least one nominee in the Mayor's secret committee selection process. The Mayor should denounce this testimony from people so close to his administration. • Threatening to sue is unethical and illegal. • Threating to use the power'of the Mayor's office to retaliate against the legislative branch or the electorate is appalling. All of this conduct has a chilling effect on the legislative decision-making process. I urge the Mayor to denounce outrageous behavior and withdraw his tainted nominee. And if the Mayor doesn't, I urge you to stand by your decision not to confirm Zendo. That was not the only new matter that has to be addressed. Only this morning, Today's Newspaper Headline Reads "Lawyer sues County over Sunshine Law, seeks to stop Zendo Kern Confirmation Vote." In my first written and oral testimony I objected to attempts by the Mayor's office to enlarge or reduce the 60-day time limit available to Council under Section 13-8 of the Charter. I did this because the Mayor's Office took actions that could unfairly force the trigger automatic confirmation provision. In particular, the Mayor sought retro-active application of the secret nomination petition and the Mayor's Office did not present the nominee to appear before the County Council. Page 2 of 4 According to today's paper a private citizen attorney favoring Zendo's nomination has filed a Sunshine Law Suit specifically designed to seek injunctive relief to prevent the final vote on confirmation. This suspiciously coincides with an accusation and demand at the first hearing by the Mayor that the Council was speaking off-microphone. If these acts were part of a concerted plan to derail the legislative process, it has serious constitutional implications. The citizen suit is not likely to be granted by the court because it would trigger the automatic confirmation provision, mechanically reversing the current council vote not to recommend confirmation. Thus, interfering with the legitimate legislative process Even so, this suit places a chilling effect on the legislative decision-making process and may need investigation from a higher level. I object to any motion to postpone the hearing as a postponement would derail the legislative process and would trigger the automatic provisions for confirmation and confirm a candidate already found not to be recommended by Council. Do not postpone or you will reverse the stated intent of this body. It is time to stop letting the administration move the goal posts. You made the right decision to vote NO on confirmation of Zendo Kern for Planning Director. We are proud to have a strong County Council who listen to the people, uphold our laws and protects us. We cannot permit our process to be undermined by gamesmanship that will derail our important legislative confirmation process or undermine our laws. I also ask you to please review incorporate and append this to my full written testimony already presented in advance for today's. Please make sure that the record contains both the previously submitted written testimony as submitted in a timely manner prior to the hearing and this supplement—two separate documents). Page 3 of 4 In my pre-hearing submitted written testimony, I provided you my opinion, at length, why I disagree with Corporate Counsel's legal conclusion that, "you can use just whatever administrative experience,"to meet the charter requirements. I have earned the right to give my opinion on the law. I am a licensed experienced attorney and my testimony expert testimony that is permissible to counter the expert testimony of Corporate Counsel. I am a former Hawai'i County Deputy Prosecutor in its Appellate Division. I was the primary person that former Prosecutor Roth chose to represent the Hawaii Prosecutor's Office in appeals before the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court of Appeals. Appeals were what I did for this County. Mitch chose me based on my qualifications. I clerked in both Pennsylvania intermediate courts of appeals, where I researched and prepared bench briefs for the judges and wrote draft decisions for the bench. I served as Appeals Referee for the State of Pennsylvania for over a decade, taking testimony, ruling on the admissibility of evidence, making findings of facts and conclusions of law and issuing appealable decisions of law in thousands of cases. I am still licensed in Pennsylvania and in Hawaii, and in the United States Supreme Court as well as several Federal Courts. I present my credentials and experience because it matters. Page 4 of 4