HomeMy WebLinkAboutMIN PC 2021/04/06 2020-2022 Committee on Planning
6th Session
Hawaii County Building
25 Aupuni Street
Hilo, Hawai i
April 6, 2021
CALL TO The regular meeting of the Committee on Planning was called to order at
ORDER: 3:30 p.m., in the Council Chambers, Hilo, by Ms. Ashley L. Kierkiewicz, Chair.
ROLL CALL:
Present: Ms. Ashley L. Kierkiewicz, Chair
Ms. Rebecca Villegas, Vice Chair
Mr. Aaron S. Y. Chung, Member
Ms. Maile Medeiros David, Member
Mr. Holeka Goro Inaba, Member
Mr. Matt Kaneali`i-Kleinfelder, Member
Ms. Heather L. Kimball, Member (came in later)
Ms. Susan L. K. Lee Loy, Member
Mr. Herbert M. "Tim" Richards, III, Member (came in later)
STATEMENTS The Chair directed the Committee to proceed to the next order of business,
FROM THE Statements from the Public on Agenda Items.
PUBLIC ON
AGENDA ITEMS: The following individuals registered to speak and came forward when
called by the Chair:
Tiffany Edwards Hunt: Comm. 183, in opposition.
Janice Palma-Glennie: Comm. 183, in opposition.
Cory Harden: Comm. 183, in opposition.
Diane Blancett-Maddock: Comm. 183, in opposition.
David Blancett-Maddock: Comm. 183, in opposition.
Keith Unger: Comm. 183, in support.
Ken Van Bergen: Comm. 183, in support.
Kristi Van Pernis: Comm. 183, in opposition.
Carolyn Pellett: Comm. 183, in opposition.
PC-6 April 6,2021
Mike Vitousek: Comm. 183, in support.
Nancy Carr Smith: Comm. 183, in support.
Charles Flaherty: Comm. 183, comment.
Barbara Defranco: Comm. 183, in support.
CHR KIERKIEWICZ: I believe that concludes public testimony, so I'm closing
public testimony at this time and moving on to the business of the day. Mr. Clerk,
if you could please read in the communication?
COMMUNI- The Chair directed the Committee to proceed to the next order of business,
CATIONS: Communications.
Comm. 183: RECOMMENDS REMOVAL OF MARK VAN PERNIS FROM THE LEEWARD
PLANNING COMMISSION
From Mayor Mitchell D. Roth, dated March 29, 2021, requesting the Council's
review and approval.
CHR KIERKIEWICZ: Can we have a motion to recommend removal of
Mark Van Pernis from the Leeward Planning Commission.
Motion to Approve: Mr. Inaba moved to recommend removal of
Mr. Mark Van Pernis from the Leeward Planning
Commission. Seconded by Ms. Lee Loy.
(Note: At this time, Mayor Mitchell D. Roth came forward to address the
members of the Committee.)
CHR KIERKIEWICZ: Mayor Roth, great to see you. If you'd be so kind as to
state your case.
MAYOR ROTH: Thank you everybody, Chair Kierkiewicz, and members of
the Council. You know,this is not something that I would have hoped to have
done. I actually called Mr. Van Pernis to talk to him and it was not a very
pleasant conversation. I'm bringing this resolution, this motion in front of the
Council to set a standard of conduct on how we as government officials treat
people. How we need to treat each other with respect and aloha.
You know, the State of Hawaii has the Aloha Spirit Law that talks about how
we treat people. Our Code of Ethics has the Fair Treatment Law that talks
about treating people fairly, giving them a chance to talk, not bullying them.
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This is not about any decisions that Mr. Van Pernis have made; it's not about
any of his opinions. You know, I was listening to Chair Vitousek of the
Planning Commission and I agree with him, you know, actually almost
everything he said. Mr. Van Pernis can make some really good points, but his
behavior is what we're talking about here. And you know, unfortunately over
the course of his career, Mr. Van Pernis has shown a pattern of blatant
disrespect for others in his professional capacity.
I know former Chair Unger read the disciplinary suspension, but I think it's
worth reviewing again. His conduct where he was suspended from the practice
of law for three months where he harassed a court appointed Foreclosure
Commissioner in violation of the Rules of Professional Conduct. And he used
means that had no substantial purpose other than to embarrass, delay, or burden
the commissioner in violation of another rule of professional responsibility.
Now in 2003, and I know that's 20 years ago, you may say that's been a long
time, the court found that the Office of Disciplinary Counsel had warned him
on several occasions going back to 1979, also 20 years from that time to that
time. In March of 1987, he was admonished. And again in February of 2000.
And I know Mr. Chung is an attorney, and I've asked other attorneys. I don't
know of any attorney that has been suspended for this kind of bullying
behavior.
You really have to ask yourself, how far would the court have to go to do that?
And the answer is pretty far. His actions back then set a precedent of how
lawyers shouldn't act in our State. And that's not something to be proud of.
The Supreme Court said this is not okay. And really, what I'm asking is that
you have that decision. Is this the way we want to treat people?
Since becoming Mayor I've received numerous complaints about his rude,
insubordinate, unruly, unprofessional—that's the majority of what kind of
complaints I've had, but his behavior. This is about behavior. It's not about
the questions that he's asking. It's not about the positions that he's taken. It's
about his behavior.
His behavior on the Leeward Planning Commission has been such that not one,
not two, but three of your former Chairs of that commission are brining those
concerns in front of you. How he treats people, and not just the people who
come before the commission, that's the public that we all represent,the other
commissioners are County employees. And that's not okay.
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You know, what he has created is a hostile work environment. And I'll just
remind you that as employers, and we are employers even though he's a
volunteer, we have a duty to act when we see a hostile work environment and
take action.
I hope that you've all had a chance to see the video that was put together. That
wasn't just one hearing. That was several hearings and we gave you the longer
versions so you had context as well. I know it's over an hour of different
meetings where Mr. Van Pernis is acting poorly to various people. The last
two Chairs had to turn off his mic because he wasn't following directions.
Now I ask, you're all Council Members. If your fellow Council Members, as
you're the Chair, kept on interrupting you, that would not be okay with you. It
shouldn't be okay, you know, as we move forward. Again, what you guys do
on this, that's going to be up to you. But I think it's incumbent upon all of us
to set a standard of how County employees and County representatives treat
people.
We live in the Aloha State. There's a reason for that name. Aloha is the way
we treat people or how we don't treat people. Again, this is all about behavior
not about substance of what he's asking. I agree with Chair Vitousek. He has
the ability to ask some really good questions, but it's not okay to harass and
bully people. So I leave you with that. It's your decision. The Charter gives
me the ability to ask it and your decision is to decide whether that's going to be
how you treat people.
CHR KIERKIEWICZ: Thank you, Mayor Roth. Will you be here for the
remainder of our deliberations?
MAYOR ROTH: I actually have another meeting upstairs. I'm running a little
bit late.
CHR KIERKIEWICZ: Okay, if we have follow-up questions, we'll direct
them to Planning Department.
MAYOR ROTH: That's fine. Thank you.
CHR KIERKIEWICZ: Thank you. Aloha, Mr. Van Pernis. I see you are
joining us from Kona. I do want to provide you an opportunity to address this
body.
(Note: At this time, Mr. Mark Van Pernis came forward to address the
members of the Committee.)
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MR. VAN PERNIS: Okay, staff has turned the machine on. All applications
have been received favorable recommendations. Ms. Carr Smith and I usually
voted the same. She's no longer a commissioner and Mr. Vitousek is Chair.
Mr. Unger is long gone and was Chair for maybe my first meeting
two-and-a-half years ago. The Chair controls the meeting, not commissioners.
Now with Zoom muting, lots of people are muted not just me, because it's a
Zoom meeting. This spliced up video shows short portions, mostly long ago
hearings before I learned the ropes and moderated under Chair Vitousek in which
questions and statements of commissioners; long presentations of applicants,
consultants and attorneys, planning testifiers, (inaudible) and votes. And the tape
excludes the dozens of applications and hearings that were approved where I was
not actively involved, such as with the airport hotel. Particularly unfair is a short
excerpt from DPM's (DPM Acquisition LLC, dba Diamond Resorts
International—Amend Special Management Area Use Permit No. 388)two-day
hearings seeking delay of 1998 permits into the 2020's without public input.
The commissioners reshaped the application that resulted in a Vitousek motion
that DPM agreed to which included (inaudible)points. Yes, I most certainly
tried to have the conflict matter heard (inaudible), but I with courtesy retreated to
the April agenda. It's important to note, I repeat that it's important to note,that
now I write out those portions of statements for more clarity and shortened time.
This is why you have my two writings in lieu of all of those (inaudible).
A fair decision requires a thorough reading of my two writings. I'll bring you
the commission information it wouldn't otherwise get. The community trusts me
and shares the mana`o with me knowing I put the people of West Hawaii first in
working with the applicants.
The only negative toward me is a Facebook posting by Mrs. Richards. I don't
know her. You will remember that Councilman Richards voted against my
confirmation because of an unnamed developer speaking to him against me.
Why now, two-and-a-half years in? Why now, after an issue of Sunset rule,
which is only at the power of the director, was raised by Mr. Vitousek and me.
Why now? After I raised a possible conflict of the director and his staff at the
request of some constituents.
Come to a commission meeting. See for yourselves in the presence of the
Mayor, and affects it has on Chair Vitousek's control. Those who already have
should take the lead here, perhaps a(inaudible) is appropriate. I have the
transcripts here and you can see them, they're not totally represented in that tape.
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There should be room on the commission for different styles and philosophies,
and for the diversity, tediousness and compromise of democracy; or read a
current or previous transcript.
I want to serve and have the qualifications and public trust to serve. A public
confirmation for the Eighth District, my district, should be honored. I have for
the first time heard Mr. Vitousek and Ms. Carr Smith. Ms. Carr Smith is no
longer a member of the Commission, nor is Mr. Unger. I am very willing to
moderate my behavior and be more reasonable in every respect, and I ask for the
chance to do that. Perhaps I'm too lawyer-like in my examination of people who
don't want to give information.
I'd also would like to discuss the disciplinary matter. I don't know Mr. Roth,
and Mr. Roth doesn't know me. I do know Mr. Kern and he knows me. As you
know, the disciplinary matter of about 20 years ago was certainly presented
before the County Council at my confirmation hearing, and was found irrelevant
to the confirmation of my commissionership.
Again, these are the facts, I told a relatively inexperienced Foreclosure
Commissioner in the (inaudible) case, that she could only sell (inaudible) and not
personal property, being a koa canoe. She took it to Disciplinary Counsel, and I
took the hit. And the client later on, during an appeal of the (inaudible) case,
among other things the appeals court ruled I was right, that personal property
couldn't be sold in foreclosure. But by then the suspension was pau and I had
been fully reinstated.
The other disciplinary matter was many decades before that, before I was
married which is a long, long time ago. And to my best recollection took place
very early in my career. One knocking on the door entering with a uniformed
police officer (inaudible) client's child wasn't being returned to the mainland at
(inaudible). Eventually, the Family Court ordered the child returned and
awarded my client her cost and fees. The losing attorney referred the matter to
the Disciplinary Counsel before she left Hawaii for Arizona. For me it was
easier and cost effective to accept the minor admonition letter than to go through
the whole lengthy process.
The adverse party in that ancient matter was Frank Sayer who became my friend.
He wrote a letter endorsing me and telling the County Council in 2019 he
supported my nomination to the committee. To my recollection, the other matter
was also decades ago and involves someone who called me to try to settle a case.
And I talked to him and referred him to his attorney. That attorney complained
that I should not have taken the call or talked with the caller at all. But it was
only the attorney since I knew he had an attorney. That turned out to be right.
And again, at that early age I took the cost effective route of the minor
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admonition. The attorney became my friend too, and they have that supported
my viewpoints in West Hawaii Today.
I don't see how there's any relevance in these matters to my continuation as
commissioner on behalf of West Hawaii. The tape selected shorts is not
representative at all of my commissionership. I can give some examples, some
(inaudible) that I had which are more recent. If this matter can be deferred and
you will come to commission meetings or read the transcripts, you can read the
recent transcripts even, not the real old first ones that are on the tape. But if this
matter can be deferred, you'll see that my activity will be very much moderated
and I will no longer act as an attorney, but try to satisfy the other commissioners
and developers.
I feel that my actions under Commissioner Vitousek are much more conducive to
progress. We joined in many motions together now. So, I think I have a lot to
bring to the Commission and that a lot of people support me, and I would hope
that you would act accordingly. Thank you.
CHR KIERKIEWICZ: Thank you, Mr. Van Pernis. Before I call up members
of the Planning Department and launch into deliberations, I'm going to take a
five-minute recess for us to get refreshments and refresh ourselves. So we are in
recess for five minutes. Thank you.
Recess: At 4:33 p.m., the Chair called for a recess.
Reconvene: The meeting reconvened at 4:38 p.m.
CHR KIERKIEWICZ: We are back on the record. I do see Planning Director
and Deputy Director here in the audience. If you guys want to come forward and
provide us your thoughts on this recommendation.
(Note: At this time, Planning Director Zendo Kern and Deputy Director
Jeff Darrow came forward to address the members of the Committee.)
MR. KERN: Good afternoon Madam Chair, Zendo Kern, Planning Director.
Good afternoon members of the Planning Committee.
MR. DARROW: Good afternoon, Madam Chair and members of the Planning
Committee. Jeff Darrow with the Planning Department.
MR. KERN: Thank you for the opportunity to come forth. I find myself in a bit
of an interesting situation because I was on the other side of the desk as a
consultant working with Commissioner Van Pernis, and now I'm on the other side
of the desk as the Director. I'm going to try to keep it really simple and straight
forward as best as possible. And happy to answer any questions.
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We fully support the request of Mayor Roth. It's not about the votes. As
Commissioner Van Pernis said, that generally, you know, there's favorable
recommendations. Generally, the commission votes succinctly for the most part.
So it's never about that. For me this is about, you know, how we treat people and
how staff's treated, members of the public, people that are testifying. And it's
been consistent across the board that it's not what I would think we would want
for our County. And there's other questionable elements, but at the end of the
day, I mean think the actions and the behavior do speak for themselves quite
clearly.
And I just think it's the wrong fit. I don't think it's about votes. I don't think it's
about anything that this is being misconstrued to. I think it's a necessary element,
though. It's a tough one. I don't think any of us want to be here. This isn't a
happy, fun time; but it's necessary. Jeff, would you like to add to that?
MR. DARROW: Well, you know, as Zendo said, today's a sad day. In the years
I've been working with the County, I've never seen this happen. And hopefully,
we'll never see this happen again. Unfortunately, as Mayor Roth had mentioned,
he has received numerous complaints regarding the behavior of one of our
commissioners. We've experienced this behavior on a regular basis. It's been
extremely difficult for both the members of the public, for the staff, as well as the
Planning Commission members. It's unprecedented that three Chairmen call in
support of this movement. And you know, regardless if they're no longer on the
commission at this time, their testimony is very relevant because they experienced
what has happened in this process.
And you know, Commissioner Van Pernis says, "I will change." There has been
warnings as Chair Carr Smith had mentioned. There have been a number of
warnings. There were warnings that were given even at the hearings to the point
that our first meeting, he was threatened that if he doesn't stop, he would be
removed. One of the testifiers, and again, this was our first meeting. And this
was only a little over one year ago. That testifier said, "I consider him hostile,
this man is hostile." And that's where Malia Hall, our Corporation Counsel had
to stop Commissioner Van Pernis and said, "If you don't stop we're going to ask
you to leave."
And again, there are countless examples of this type of behavior, if you take the
time to look at the examples presented. And as Chair Vitousek mentioned, as
Mayor Roth mentioned, it does not have to do with content. It does not have to
do with the questions being asked. It has to do with the behavior. And given
your circumstances here, if somebody on the Council or Committees acted in that
manner, I'm sure that you folks would take action against them.
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It's really, really a tough situation. We're asking that you support this. Not only
for the Planning Department's staff, but for the members of the Planning
Commission that have asked for this to be passed. As well as the members of the
public that have filed complaints. Thank you.
CHR KIERKIEWICZ: Thank you Director and Deputy. At this time, I'm going
to be opening it up to questions, comments, deliberation from my colleagues.
Mr. Inaba, you have the floor.
MR. INABA: Okay, let's see. So I had a chance, since being in office to watch
some of the commission meetings, and I will agree that Mr. Van Pernis has
interrupted, has been brash, and maybe counterproductive to a flowing and
efficient meeting. And I think that really is troubling for any of the bodies on
boards and commissions in our County. We do need to have things run
smoothly. People do need to be respected.
So I'm glad that Mayor Roth has brought this forward because I'm not sure what
has been done so far. HasI don't know who can answer this question, who
has the Chair of the Commission asked for help with this? Is this something
Corporation Counsel has given advice on? Is this something that has repeatedly
been brought up to the Mayor's Office, even prior to Mayor Roth? What is
going on here?
MR. KERN: I know that there was, according to my knowledge and Jeff correct
me if I'm wrong, but under Carr Smith, there was a disciplinary request that was
sent to J Yoshimoto at Corporation Counsel. That was then sent to
Commissioner Van Pernis. I can't speak to what was happening during the
previous Administration because I wasn't part of that. I'm not sure if you have
anything to add as far as the previous Administration goes?
MR. DARROW: Again, the Chair at that time, Chair Carr Smith was having a
very difficult time with Commissioner Van Pernis. She had drafted an email that
she wanted staff as well as our Corporation Counsel to review, but she wanted
that email to be sent to Commissioner Van Pernis to bring him back in line. And
so as part of that,there was also discussion in-house to have the Director speak
to Mr. Van Pernis.
What ended up happening is they felt it was more appropriate that the
Corporation Counsel approach Commissioner Van Pernis, which Corporation
Counsel J Yoshimoto did speak with him on the matter, as well as forward the
email from Chair Carr Smith.
MR. INABA: And when did this take place?
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MR. DARROW: I believe it was in October of 2020.
MR. INABA: Okay, do we not have anybody from Corporation Counsel here
today? Hi Renee, thank you for being here. Being that you're the representative
here today, what specifically have you folks advised? Was it more than one time
or has been continuous advice or communication to Mr. Van Pernis regarding his
behavior at the commission meetings?
Note: At this time, Deputy Corporation Counsel Renee Schoen came
forward to address the members of the Committee.)
MS. SCHOEN: You know, I can't speak to the specifics. But I can tell you that
I understand that Nancy Carr Smith did ask that our office provide an email
that an email be provided to Mr. Van Pernis. So I cannot speak to the specifics
or exactly what was said.
MR. INABA: Was that more than one time or has this been an ongoing, like
your office has had to send communication regarding behavior?
MS. SCHOEN: I can't tell you if it's an ongoing thing. I can say I believe it
was once with Nancy Carr Smith, as she has testified to. And there might have
been another request later on. But, you know, if you need that information I can
get back to you on specifics.
MR. INABA: Okay, yeah. Thank you for that answer. It is very concerning that
three commissioners have testified today regarding the struggles that they're
facing in the Commission. And like that body or any body, we do need some
kind ofI guess we have rules for how we conduct ourselves in these meetings
and something needs to be done about this. And like Mayor Roth said, setting
precedence on what we will and won't allow in these meetings is really
important.
I didn't get a chance to watch this video that was sent, and I do want to say this
for the record. This link was sent to us last Thursday individually as Council
Members from the Mayor's Office. And I do think that we need to follow
protocol. I thought that was, I'll say this for the record, not in compliance with
our standard practices and protocol.
Usually we get things to our Council staff, things are numbered so that it's part
of the public record. And that's not what happened, and I had to go back and
forth with the Mayor's Office via email to ask for that information to get
numbered as a communication. I only got it last night. I didn't have time last
night between last night and today to watch an hour-twenty-minute video.
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So moving forward, I'm going to ask that Administration follow protocol and get
things numbered, which I think is part of the public having access to that
information. Is that correct?
MS. SCHOEN: Yes, and I wasn't aware of the video or anything being sent to
you folks directly. But I would say, generally yes, that anything that is submitted
to the Council for consideration and part of an agenda item, should be sent
through the proper channels.
MR. INABA: Thank you. And sorry, not directing that frustration at you, but I
am very frustrated that I had to go back and forth about that. Last question for
now, who put this video together? Mr. Kern. Okay, you put this video together
of the different, I believe it's commission meetings that people have been talking
about?
MR. KERN: Yeah, trying to demonstrate a fair just, this is what's been
happening on a consistent basis. That's probably why it came out to be
somewhere around an hour and 40 minutes, to actually try to get some context
within it. I think it's been said, I mean, some of the points that Commissioner
Van Pernis makes, their good and it's not all bad. It's just the consistent
behavior.
And to add a little bit to your question about the request for say, disciplinary. I
would say that that occurred verbally on the floor every single Commission
meeting, multiple times. "Please stop, please wait your turn." "Please," you
know,just over and over, "This can't be done this way." So I think if that wasn't
happening, there probably would be more written correspondence, I'm assuming.
But when it happens every single time, it's pretty obvious what you're asking
for; treating people right.
MR. INABA: Okay, thank you Chair. I yield at this time.
CHR KIERKIEWICZ: Thank you. Ms. Schoen, I'm wondering if
J Yoshimoto and/or Malia Hall are available to maybe join us via Zoom or here
if they're still around? It's likely that we may have more questions from my
colleagues come up for Corporation Counsel. Could you check for us? Thank
you so much. Mr. Richards, you have the floor.
MR. RICHARDS: Thank you Chair. I want to start by first of all correcting an
inaccurate statement that was made about me. Mr. Van Pernis stated that I voted
against him because of a statement that was made to me by a developer. And
that is inaccurate, Sir. And we discussed this at your confirmation.
The concerns were brought to me by people in the community of your talking
over, being combative, and a tend to bully people. That was a concern that I
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saw. Excuse me, that was brought to me and that was a concern that I saw
during the confirmation. So your statement about a developer swaying my vote
is inaccurate. I just want to clarify that for this Council. There was no
conversation of that whatsoever.
I did vote against you, and for the reasons that we are here today is for those
reasons. I have discussed with quite a few people about this. And everyone has
stated that your thought process and your opinions are very valid that you bring a
lot of wealth of knowledge to the table, but that's not the concern. The greater
concern is how people are being treated as we go through the process. And we
have a decorum that we must adhere to. We can vehemently disagree, but still
be agreeable. And I'll use this, Council Chair David and I have disagreed
vehemently on some aspects, and then we go and have a meal together because
that is what we do and that's what we're elected to do here.
I'm bothered by a statement that the Mayor made, and we're talking about a
hostile work environment. And that's what we're facing here. We cannot accept
that and we have to take a stand. Mr. Inaba you pointed that out that there's very
concerning statements that have been made here. The fact that we have three
Leeward Planning Chairs making a statement of problems is very concerning
going forward. I don't argue that Mr. Van Pernis has a knowledge base. What I
do argue is that we have a problem with managing people, and there's an
expectation. We as County Members need to support the public and seek a way
forward and not be combative.
I did watch the video and I took offense to the statements referring to the people
before them as witnesses. And they're not witnesses, these are applicants. This
is not a courtroom. This is a hearing to seek a way forward and how we can
manage things. And so I'm going to be very clear about this. We have a chance
to make our County better. And it's going to start with how we're going to treat
each other, back and forth.
And so I do applaud the Mayor for bringing this forward. I don't enjoy this at
all. But by the same token, we need to treat each other with respect that is
accorded down to our applicants, down to the public, because we're here to help
them go forward. So I'm going to stop now because I want to hear from my
other colleagues as well.
But like I said, I wanted to correct that up front that it was brought to me by
concerned members, kama`aina families, long time here. They're concerned
about going forward that have been in the community for generations. Chair,
thank you, I yield.
CHR KIERKIEWICZ: Thank you, Mr. Richards. Mr. Chung.
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MR. CHUNG: Zendo or Jeff, you know, there's been some suggestion that
Mr. Van Pernis was disrespectful to staff. I mean, I may have missed some of
the testimony when I was out, maybe I missed two or three but, to whom was he
disrespectful on the staff level?
MR. KERN: I'm going to refrain from saying any names for fear of retribution.
But generally if there's a planner associated with it, it can get very disrespectful.
MR. CHUNG: We haven't heard from them, though.
MR. KERN: No, I've talked to staff. We talked about it, but again for fear of,
you know, retribution or retaliation.
MR. CHUNG: By whom?
MR. KERN: Mr. Van Pernis.
MR. CHUNG: Physically or verbally?
MR. KERN: I don't think there's anything physical. I mean this is a situation
that depending on how this vote goes. He's obviously a member of the
community as one, but I think as a commissioner, you know, this is a vote that
you folks are going to talk about and you guys are going to decide. So by no
means is this, you know, on the other side of the equation right?
And when you're in your jobs, and it's different for me. You know what I mean,
I'm appointed, I'm here, I'm doing the very best that I can, but when you're in
the department it's different. And so that's one of the reasons that I'm here, is to
provide the support for them.
As you folks may have known, when I represented folks, I tried my best to, you
know, protect folks from being treated poorly. I do the same with the staff.
That's who I am. And so that's why I'm here and they're not here.
MR. CHUNG: Well, you know, on the one hand, I did support I voted for
Mr. Van Pernis when his appointment came up, and that was largely in deference
to the Council Members from Kona. I'm not saying I will totally defer, you
know, to people in the districts from where an applicant may be coming from,
but we knew what the risks were. It's not like we, you know, I went in not
knowing what the risks were. But I still voted for him.
And, you know, I'm really torn on this thing because for one thing, I don't know
what—you know, Mr. Richards just mentioned something about Mr. Van Pernis
making a misstatement about his reason for voting against him. I don't know
what the truth is on that. But if Mr. Van Pernis was lying to discredit
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Mr. Richards for the purpose of discrediting him, then that's not a good
reflection, but I don't know what the truth is on that. I really don't, I can't say.
But, you know, Zendo as with your appointment, I think I said I like to give
people a chance. My feeling is this: Mr. Van Pernis said that if we deferred this
matter he would moderate his behavior. I don't know why he has to say that,
quite frankly, but and become more reasonable, which should be a given, right,
being reasonable. But I'm willing to give him a chance. I wouldn't mind
deferring this matter to see if his alleged behavior on the board improves as he
said it's going to.
You know, if it goes that direction or if Mr. Van Pernis' role on the commission
is secured by a negative vote, I guess, right? I would just ask him to please,just
follow the instructions or the directions of the Chair. I mean they're the ones
who have to maintain decorum. They maintain order in these types of
proceedings. And whatever impulse he may have to try to do certain things, and
if he could just temper them somewhat.
You know, he is an advocate, I understand that. And he has, in the past, made
good points. But sometimes it's all in the delivery. That's all I've got to say
right now. I'm just hoping that maybe we can defer this and give him a chance.
Thanks.
CHR KIERKIEWICZ: Ms. David, you have a floor.
MS. DAVID: Thank you Chair. You know, along the same lines, when I
listened to Commission Chair Vitousek in his testimony, what I sensed and what
I got from him was a cry for help in trying to resolve this so that, in a way, that is
doesn't have to take this drastic measure of having someone removed in this
manner. I think, from whatever I've heard, either—and I'm not sure if this was
done for Mr. Van Pernis—if he took, I mean most of us are going to have some
sort of background in parliamentary procedures when we sit on a board or
commission like this, okay. I'm not sure whether he had one. It seems like he
has his background as an attorney that pretty much takes over his actions when
he sits in that commission. And so, separating those two things—it's kind of
difficult if you're just coming into this sort of arena. I know the judicial part is
different from parliamentary procedures that we have to abide by. But more
importantly, I think as long as Mr. Van Pernis has been here, I would like to see
him behave.
I mean, I know Mr. Van Pernis for a long time, and whatever you folks are
saying, his personality, that's accurate. But I don't believe that this route that
we're taking is a route that we should use in a disciplinary measure. I think he
needs to be given some sort of instruction, whether it's a parliamentary
procedure, the Chair is the boss, no matter what. And if you don't comply with
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the Chair's request, then there's certain things that can happen. I don't know if
he's been removed before, but I really think he needs to have an opportunity to
change his behavior to an appropriate interaction with the people that he's
dealing with and the commission members.
I cannot imagine that kind of behavior because like, I think it was Mr. Richards,
it doesn't happen here on most boards and commissions, and before this body
because we depend on the Chairperson to take control and maintain decorum. So
I'm not sure if Mr. Vitousek needs some help from Corp. Counsel. Whether
Mr. Van Pernis is given a probationary period and say given what everyone has
brought up right now, these things have to change, and see how he does. At least
you've implemented a process where he's aware. I'm not sure why he would not
be aware according to what you folks are saying, but there has not been a formal
process except this one to just get him out. I'm just talking about maybe a
probationary period. See how he interacts given everything that's being said
here, and then it's up to the body. I feel it's up to the commission, the Chair of
the commission and its members, to discipline if that's the route this has to take.
I've never seen this removal action before and it's not for me, it's the precedence
of it all. That means that nothing on the Commission level is available to resolve
this. And so you're looking at another level of authority, which to me, is
premature at this point. So, I'm really hoping that the Commission can get some
assistance from Corp. Counsel.
And Mr. Van Pernis, I would urge that given everything that's been said, I know
you have the community's best interest at heart. But along with the
responsibility is your responsibility to treat people the way you want to be
treated. And I'm going to say it again, everyone talks about aloha, but it goes
both ways. You don't get it if you don't give it.
So, that's my two cents. I don't believe we on this body is a disciplinary body. I
really think that it belongs in the commission. In that body, whatever help they
need, I believe they can get it and they can resolve their issues. It'll be good for
everybody on that level, if it works. If it doesn't work then you take the next
step. He needs an ultimatum, that's all I think. So I think I'm done, but that's
my two cents and thank you, I yield.
CHR KIERKIEWICZ: Thank you, Ms. David. And I just want to note for the
record that Deputy Corporation Counsels J Yoshimoto and Malia Hall are here if
anybody has questions for them. I'm sorry, Jeff, did you have something you
wanted to share with us?
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MR. DARROW: If that would be okay, I'd appreciate that. Just to respond to
Chair David. You know, I read the testimonies provided; response from
Commissioner Van Pernis as well as his wife. One of the statements made was,
"without the benefit of instruction on procedure." Every new commissioner that
is appointed to the Windward Planning Commission, the Leeward Planning
Commission, the Cultural Resources Commission, Banyan Drive, all of them.
They all go through an extensive training process.
Corporation Counsel Malia Hall and myself drove out to Kona, met with
Mr. Van Pernis. Went through the very same training that we provide to all of
them which cover the topics of duties and responsibilities;parliamentary
procedures review, which covered the provisions in Robert's Rules on how you
act as well as in the general rules of the Planning Department or the Planning
Commission rules; Sunshine Law review; ethics review; and then we open up for
dialogue and answer any questions that they may have. We also provide them
with quite an extensive amount of material, including the rules for the Planning
Commission.
You know, I hear what you're saying, give him a chance. The problem is that
we see is this has been ongoing behavior for over a year. There has been no
change whatsoever. And what I would ask you to do is take a look at the last ten
minutes of the last hearing and just look at that. And see if you see any change.
Chair Vitousek was having a very difficult time. They had to mute him because
he would not stop. And that's sad, you know. Now we're at this point, you
know, the question is well, what do we do here? Is it the responsibility of the
Council or is it the responsibility of the commission? Commissioner Vitousek,
very concerned about this one situation, responds with an email asking, "What
do I do if a commissioner gets out of hand? Please provide me with that
information. Can I remove him?" And he wanted to talk about that more today.
He said, "Look,three minutes isn't enough." He wanted to be able to expound
on the issues. But you know,just like anybody else, they're only given three
minutes.
It would be good, I think that if you do continue this matter to another date,to
allow the Chairs to come and speak on this matter. I think that would be really
good to be able to ask them the questions, because they're really the key players
in this. But I appreciate that, thank you.
MS. DAVID: Thank you for that, Mr. Darrow. And that's a great suggestion,
but it's totally up to the Chair. So I yield, mahalo.
CHR KIERKIEWICZ: Thank you. And maybe staff can confirm, I think the
commissioners might be in the Zoom waiting room. So they may be available to
answer any questions from this body. Ms. Kimball, your light was on.
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MS. KIMBALL: Thank you Chair. First question, how many meetings were
actually held since Mr. Van Pernis was added to the commission?
MR. DARROW: His first meeting was February of 2020, and there has been as
far as I know, a meeting once a month.
MS. KIMBALL: Probably around eleven.
MR. DARROW: Eleven, yeah.
MS. KIMBALL: You described the on-boarding process. I'd like more detail
on the component with regard to parliamentary procedure and the Board of
Ethics. I was on-boarded for the Appeals Board, and actually do not recall
parliamentary procedure training as a part of that. So please tell me a little bit
more about what the on-boarding process is with respect to that specific area?
MR. DARROW: As far as the parliamentary procedures?
MS. KIMBALL: Yes.
MR. DARROW: So it basically touches upon Robert's Rules of Orders, mainly
about the authority of the chair. That's kind of what it's talking about is, the
chair runs the show. You have to respect the authority of the chair. Both in
Robert's Rules of Order as well as in Planning Commission Rule 1, which is are
general rules, which talks about this process that the Chairs were asking, about
"What authority do I have as Chair and what options do I have if somebody gets
out of hand?"
As far as ethics, it touches upon the Code of Ethics, but it focuses on, I mean this
is one of the main things is that, "All persons shall be treated in a courteous, fair
and impartial manner." We do have a PowerPoint that takes us about an hour to
go through, and there's a number of slides. I can provide that to you for your
review. But again, it basically goes through all of these different areas that
affects the Commission.
Sunshine Law. When do you, you know, get to a point that you might be
violating the Sunshine Law? And again, the simple duties and responsibilities of
a commission member.
MS. KIMBALL: During the on-boarding process with respect to parliamentary
procedure, are the members advised on their ability to make a point of order if
someone on the Commission is not following the guidelines of Robert's Rules?
MR. DARROW: I don't think it goes to that level.
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MS. KIMBALL: Okay, thank you. What accommodations were made for
Mr. Van Pernis with regard to switching to remote meetings using WebEx, I
believe is the main platform that you use and the clear challenges he has with
regard to his speech impediment?
MR. KERN: Mr. Van Pernis attends the meetings generally from the Kona
Conference Room. So all the technologies' set up and he has the microphone
and everything right there. So basically, it's preset.
MS. KIMBALL: Okay. Chair Carr Smith mentioned an email. I think that's
been brought up a couple of times. Is she still on the line that she can read that
into the record or provide that in a more detailed way?
CHR KIERKIEWICZ: I see her in the waiting room. Do we have the ability to
admit her into the discussion? I believe Deputy Brown is taking a look at that.
We can come back to that.
MS. KIMBALL: I'll move on. Since we have Corp. Counsel here, could you
elaborate on, apparently there was a meeting, you provided some training. Could
you provide some details on that training that was provided to
Mr. Van Pernis?
Note: At this time, Deputy Corporation Counsel Malia Hall came forward
to address the members of the Committee.)
MS. HALL: Good evening, Malia Hall, Deputy Corporation Counsel for the
Windward Planning Commission now. Yes, so on January 30'', we met in Kona;
we provided a training. Just as Jeff said, basically we start with your basic roles
and responsibilities per the Charter, the Code, we go through that. Then the next
step is Robert's Rules of Order. And he's correct,we do kind of go into the
authority of the chair, but we also go further than that of making sure that you
stay on the merits of the application; making sure that you're not addressing
other commissioners by name.
You know, you give everybody courtesy in the sense of, like, you can make your
argument. You don't have to attack somebody and to make that argument. We
then move on to Sunshine Law, basically everything from notices, to minutes, to
agendas, to permitted interactions. I'm sure you guys are all familiar. And then
after that we kind of go into, Jeff gives a spiel about the actual applications and
the difference between rezones and applications, and the authorities of the
Commission.
MS. KIMBALL: I actually want to just pause you because my question was
specific to the mention, I believe it was by Chair Carr Smith, that there was a
conversation between Corp. Counsel and Mr. Van Pernis as a warning. What
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I'm trying to get is some of the process that Chair David alluded to as well as the
warning processes. Can either of you speak to that particular interaction?
MS. HALL: I can speak to that. I gave him a warning on the record at his first
commission meeting, but I was not the Corp. Counsel that spoke with him.
Following that I was on maternity leave.
MS. KIMBALL: Okay. Was that you J that spoke to him? Can you elaborate
on that,please? Thank you.
Note: At this time, Deputy Corporation Counsel J Yoshimoto came
forward to address the members of the Committee.)
MR. YOSHIMOTO: Good afternoon Committee members. J Yoshimoto,
Deputy Corp. Counsel. I'm sorry, Council Member Kimball, so you had a
question regarding ?
MS. KIMBALL: Yes, there was a comment made, I believe by Chair Carr Smith
that there was a conversation with Corp. Counsel that happened as a warning
about his behavior. I'm looking for information about what that conversation
actually entailed.
MR. YOSHIMOTO: Okay, so Council Member Kimball, I'm not able to
disclose or discuss the content of that conversation because that was done in my
capacity protected under the attorney-client privilege. So the substance of that is
privileged between my position as a Deputy Corporation Counsel and
Mr. Van Pernis as an officer of the County. But I can confirm that a
communication did occur.
MS. KIMBALL: Okay, thank you, I understand. So you were, at that time
representing Mr. Van Pernis in that conversation?
MR. YOSHIMOTO: Well, in that, to clarify our office advised at that time the
entire commission. So it's similar to the Council Members having conversation
with our office but our office still advises the entire Council as well.
MS. KIMBALL: Okay, thank you for that. Zendo, I'll ask you, Director Kern,
since you compiled the video set. My observation was thatI agree that Mr.
Van Pernis was frequently rude and condescending and belligerent even and
often out of order. But the one thing that I did not see was the other commission
members calling points of order or the Chair actually taking the opportunity to
limit debate would that have been within her right. That component of it in
terms of the Commission being advised that all members have the ability to.
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MR. KERN: Sure. In my general experience of being a commissioner and being
in front of the commission, both Windward and Leeward, it's quite different than
the Council where you folks will get into the points of order. It's generally a lot
friendlier and it's kind of, you know, roll with it. And if someone is going off
they pretty much leave it to the chairperson to handle those things, that should be
demonstrated in the videos as well as the other videos that you could, you know,
that you'd watch there. So I think while it still follows the same general, you
know, format of Robert's Rules as the Council would. It's just always been a
little different on the commission that way. And you just don't see that as much.
MR. DARROW: I can also add to that, Chair Carr Smith had spoken about that
directly out of the rules. She had said that the Chairperson does have the ability
to limit testimony, especially if it is irrelevant, abusive, disruptive, and unduly
repetitive. And so, there are times as you will observe watching the videos that,
you know, they're trying to limit and they're not having success. And so that's
where you'll hear statements such as, "Mute the microphone." It has to come to
that point.
MS. KIMBALL: Thank you. I have more questions, but in the interest of time,
I'm not going to go into them now, because I concur with where the conversation
is leading from Council Member David and Council Member Chung that this, I
think is appropriate to defer at this time. Because as much as I did see, like I
said, rude behavior, frequently being out of order, asking questions that were
repetitive, I also saw a man that was frustrated with his ability to communicate.
And I feel like when we talk about aloha and the kind of behavior we want to
see, it includes decorum, which I think is critical obviously for all these bodies to
function, but it also includes a certain level of compassion. And I think that
Mr. Van Pernis has shown himself to be contrite, whether or not that actually
follows in terms of a genuine change of behavior, I think he deserves the
opportunity to demonstrate that he has heard this conversation, that he has
understood that his style and approach is not effective or conducive to good work
of the commission and truly benefiting his community.
I feel that this was the nuclear option, and I feel like there are stages that could
be taken if the Council were to defer it today. For example, seeking mediation,
additional training that could not get us here so quickly. I think this was a very
serious step to take where some of the intermediate steps just were not addressed
first. So with that Chair, I'll yield. Thank you for your time.
CHR KIERKIEWICZ: Thank you. Ms. Villegas.
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MS. VILLEGAS: Thank you for sharing that. I'll agree. In watching the
videos, the mutual interruptions, the mutual disrespect and disregard for someone
who is operating under special circumstances. You know, when you asked about
any special accommodations related to some of the challenges that Mr. Van
Pernis has with his speech. And your statement was, everything is just set up
there. The way that it's set up is set up for any person that would walk in there.
There are no extra considerations.
I had concerns about liability for the County when looking at this bomb and how
it was presented to all of us in such aso intensive in, you know,the potential
for there to be more accommodations for Mr. Van Pernis. Whether or not it's
him writing or, I by no means am an expert if ADA (Americans with Disabilities
Act)things like that, but humans when we're trying to get an idea out, and we
get interrupted—and I witnessed this many times and I watched these meetings
prior to having this video put together, and have seen it a number of times when
Mr. Van Pernis is trying to get to a point. He gets interrupted or essentially
"pooh-poohed"which then creates more frustration which creates more him
acting out, which it's not conducive to a productive meeting in general.
I spoke with Mike Vitousek the other day, and I do want it for the point of record
because it's continued to being said here today, that three Chairs have asked for
his removal. And I'd like to correct that and say that only two of the prior chairs
said they agreed with this communication. But Mike Vitousek said he did not
support it either way, and he asked for help. And that's what I heard from him
when I talked to him the other day, was asking for help. How do we line this up
for the greatest success for everyone there?
I have serious concerns. My constituents are on high alert right now regarding
the Leeward Planning Commission, regarding the Kona CDP (Community
Development Plan) Action Committee. There are too many things lining up that
are causing people to be in high alert.
Mr. Van Pernis sent a long email that he very specifically outlined the dates of
the different things that have happened, and then this is happening to him. And
it calls into question, you can sit here and say all you want. It has nothing to do
with the way that he's voted or the things that he's called forward, it's how he
talks to people.
Based on the circumstances for how this has all come forward, that's
questionable. And I have sit here and represent those in my district and the
constituents who have worked with Mr. Van Pernis for decades. Even himself,
you know, humbly admitting to his orneriness. And his wife, and we know those
things. I mean most of here on this dais, we all live in a glass house too.
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So I just wanted to correct that. I really appreciate the recommendations of
deferment and of working with Mr. Van Pernis on some of these issues and
providing support for Mr. Vitousek. And looking into other special
accommodations that might be made that would make it easier for Mr. Van
Pernis to get his ideas across more succinctly and with better flow, because I've
seen him trying to get there and get shut down so many times, that of course he
ends up getting more frustrated. And also I want to caution what I'm hearing
people throw out, "a hostile work environment,"because I wouldn't go so far.
That's a pretty steep and far place to go.
So I'll be supporting a motion to defer this and to further work with
Mr. Van Pernis and our Leeward Planning Commission. And I would encourage
the Planning Department and this Administration to take into consideration what
happens when things like this get thrown forward in this capacity in light of all
the other things going on and how they're affecting the Leeward side of the
Island and the questions that they bring up. So with that I yield.
CHR KIERKIEWICZ: Thank you. Mr. Chung. I'm Sorry, I thought your light
was on. Mr. Richards. I'm sorry, Mr. Richards. Mr. Kaneali`i-Kleinfelder
didn't have a turn yet, I'm going to let him go. Matt, go ahead.
MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I think there's been a lot
of good discussion. Lot of good points were raised. My interest is as falling into
different areas of this and the way it was brought forward. So as we stated, it
was bad behavior that brought this forward, that's why we're all here. Is that
correct? And we had, looks like one notice of bad behavior being sent to
Mr. Van Pernis. Is that correct so far?
MR. KERN: One written notice and continual notice at every single meeting.
MR. KANEALI`I-KLEINFELDER: But no harassment, no verbal harassment,
no police charges, nothing brought forward besides that. Just some verbals, you
need to stop, being muted. But only one written document supplied to
Mr. Van Pernis to date.
MR. DARROW: As I mentioned during our first hearing, the applicant said that
this man is hostile to her. That was our first meeting. And then shortly after that
Corporation Counsel said, "If you don't stop what you're doing, we're going to
ask you to leave." That was our first meeting, and it just continued throughout
the remainder of the meetings all the way to our last meeting.
MR. KANEALI`I-KLEINFELDER: But only one written document. You had
some verbals. Okay we had verbal warnings. I'm a restaurant owner. You have
verbal warnings and you a written warning. So you've had one written warning
so far.
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MR. DARROW: There's no process in the rules that lays out a warning system.
It's removal. You know, you follow the Chair or the Chair can ask you to be
removed.
MR. KANEALI`I-KLEINFELDER: So we have no rules of conduct.
MR. DARROW: Correct.
MR. KANEALI`I-KLEINFELDER: That doesn't sound right.
MR. DARROW: There's no warning process that's spelled out in the rules.
MR. KERN: There's rules of conduct, but there's not a process in what you
follow, as far as you've got to give one warning; you, got to give two warnings;
you got to give three warnings, and then something happens. There's nothing
laid out like that, but there's definitely rules of conduct as well as Code of
Ethics.
MR. KANEALI`I-KLEINFELDER: And we don't like his behavior, so we're
saying that's breaking the rules of conduct.
MR. KERN: It's not about liking or disliking someone's behavior. It's about
how people are being treated. And if you're going to treat people poorly, if
you're going to bully people, whether it be across the board—if it was just one
grouping it'd be one thing. Okay, you got an issue with applicants. You got an
issue with testifiers. But when it's staff, applicants, testifiers, it's a pattern. It's
straight-up bullying.
MR. KANEALI`I-KLEINFELDER: Okay.
MR. DARROW: And again to also add to that, the authority within the
Commission is the Chair,just as we have with the Council. If a member of the
Commission does not follow that authority what do you do? If there rules that
the Council has that you get a warning? Do you have a warning process in
place?
MR. KANEALI`I-KLEINFELDER: I have to go back and check. I'm not sure.
Okay, thank you, thank you. Next. Mr. Van Pernis, if you can please. If you're
willing to answer, your speech impediment is due to what?
CHR KIERKIEWICZ: Mr. Van Pernis, we can't hear you.
MR. KANEALI`I-KLEINFELDER: Thank you, Scott.
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MR. VAN PERNIS: Now can you hear me?
MR. KANEALI`I-KLEINFELDER: I can hear you now.
MR. VAN PERNIS: Let me respond to a number of things here that have been
presented. First, my only recollection of speaking with J Yoshimoto, the
attorney, was in regards to the Palamanui application that has been presented in
my writing.
Secondly, the tape that you heard is primarily the very first couple of hearings.
This was when Mr. Yee was the Director and Mr. Kern was a consultant. One of
the repetitive questions, or what's been called repetitive questions, is when
people will not answer. The consultant would not answer. Mr. Kern was one of
those consultants, and it's on that tape.
MR. KANEALI`I-KLEINFELDER: Mr. Van Pernis, I'm sorry, I appreciate
what you're saying, but I had a couple of questions for if you don't mind
answering. It's up to you if you want to answer.
MR. VAN PERNIS: Fine.
MR. KANEALI`I-KLEINFELDER: What causes your speech impediment?
MR. VAN PERNIS: A genetic. It's called hemangioma. It's a genetic thing.
It's something I inherited. It's a blood vessel in my brain disability.
MR. KANEALI`I-KLEINFELDER: Is it a disability?
MR. VAN PERNIS: Well, I don't like to think of it as a disability, but it does
affect my speech recently.
MR. KANEALI`I-KLEINFELDER: Because my grandpa had a condition where
he started to lose his eyesight. I think it wasI forgot the name of it, but it
slowly closed down what he could see to the point where he needed a screen to
blow up the image he was looking at so he could actually read it. But, you know,
it really hindered his ability, and he was an engineer.
MR. VAN PERNIS: Well, my condition, and the doctors have thoroughly
reviewed it over the last 20 to 25 years, and has not changed. And in fact, in
many ways, it's improved and I've had no further deterioration. It affects my
speech and then it affects my epiglottis. So I have to chew rice very carefully,
etcetera. That's pretty much it. Sometimes it affects, well I don't know if it
affects my balance, but it just might be old age.
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MR. KANEALI`I-KLEINFELDER: Thank you. Thank you for answering that.
MR. VAN PERNIS: It does not, other than speech, it does not interfere at all
with Planning Commission activities. But I'm writing things out these days.
MR. KANEALI`I-KLEINFELDER: Your emails are very concise. But I have
to admit it is hard to understand you sometimes, especially given the Zoom style
meeting and it's online and the audio quality is not amazing. The reason I'm
asking is do you need something that can help you translate what you're thinking
and what you type. So I've seen your letters,there's very concise, to the point
and detailed. But that be helpful in going forward that you'll have an ability to
type and have that processed in an audio version for everyone else?
MR. VAN PERNIS: Yes, it'll be helpful if I'm presenting anything, but there's
a lot of things in writing, such as questions, and I can do that. I am doing it. I
look at the applications, study them, ask questions; and beforehand have the
questions written out before the meetings usually. And I like to present those
questions to the applicants and the Planning staff in writing, and I can answer
them verbally if I submit the writings.
Now, I also want to point out that I never received any letter from Ms. Carr
Smith that is being talked about here. I don't see it before you, (inaudible) in
evidence, but I've never received any letter. I never received a complaint from
Mr. Darrow, who works for Mr. Kern. That's why I ask the staff consisting of
Noriko Sauer if there had been any complaints at all. And she has been at every
meeting with me. She is the secretary of the commission and she said, "No,
there have been no complaints." So all these complaints that are here today have
not been communicated to me.
MR. KANEALI`I-KLEINFELDER: Thank you for clarifying that. I'm just
looking for solutions going forward really. And if it would be helpfulI don't
know if anyone's ever offered to provide that for you, but something for you to
help your typed responses to any questions that came forward, or things that you
needed to convey to everyone so they can fully understand and grasp what
you're saying, has been given to you, or could be given to you in the future.
And then for now, I'm going to switch questioning back to here in Hilo, if you
don't mind, Sir. The video that was made, so you made that Mr. Kern? And
then it was supplied to every Council Member individually before it became an
agenda item I think by Pomai and from the Mayor's Office?
MR. KERN: I submitted, I supplied the video to the Mayor's Office.
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MR. KANEALI`I-KLEINFELDER: So you supplied it to the Mayor's Office.
You went through hours of footage and pulled out the clips so we could
understand what was going on, what the frustrations were.
MR. KERN: Yeah, with the intention of labeling the area, so anybody could go
back and further watch, you know, the entirety of the hearing. It was, you know,
kind of trying to be laid out, lineal, given enough time in there. That's why it
was quite a bit longer than anybody would want.
MR. KANEALI`I-KLEINFELDER: Procedure-wise, is that proper procedure to
be supplied a document to each individual Council Member before it becomes
public agenda? Is that a normal procedure? Is that an okay procedure? No, I
think Corp. Counsel
CHR KIERKIEWICZ: Ms. Bartolome, can you come forward and maybe
Corporation Counsel?
MR. KANEALI`I-KLEINFELDER: I think Corp. Counsel would be best to
answer this question. And it was brought up earlier by Mr. Inaba, but I'm hoping
for an answer for that.
(Note: At this time, Executive Assistant to the Mayor Pomaika`i
Bartolome came forward to address the members of the Committee.)
MS. BARTOLOME: Aloha, Pomaika`i Bartolome, Executive Assistant to
Mayor Roth. I do want to comment on that, Mr. Kaneali`i-Kleinfelder because
when I initially had contacted County Clerk's Office, I was told in order to
remove a commissioner from a commission, the Mayor just would have to write
a letter and have them removed, which according to our Charter, Section 134(b),
"A commissioner may be removed upon recommendation by the Mayor and
approval of the Council."
And so when I had contacted the Clerk's Office to read them this from our
County Charter, it was then brought to my attention that there was no protocol.
And so you would think the natural protocol and procedure would be like the
regular boards and commissions when I nominate someone, they do their normal
procedure. And that wasn't the case. And so, I was told that with the video that
we had that was an hour-and-twenty-minutes long, that it would be too long if
that was something that we would use for Council, for Committee review.
Therefore, it was okay to send out the video individually to the Council Members
as long as I put in the subject field that it was regarding Comm. 183. And so
that's what I did. And I also consulted with Corp. Counsel about that as well.
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MR. KANEALI`I-KLEINFELDER: Okay, Corp. Counsel, you guys want to add
to that question? I felt that it was a good question raised by Mr. Inaba, and I just
want to follow-up with you guys on whether—because we've had questions
about that in the past. Thank you.
(Note: At this time, Deputy Corporation Counsel Renee Schoen came
forward to address the members of the Committee.)
MS. SCHOEN: So, I'm going to reiterate what I said before. So if it is a matter
on the agenda and a document, video, whatever needs to be reviewed by the
Council, it should go through the proper procedure. I cannot speak to what
Pomai just said because I didn't talk to her about that, but the proper procedure is
normally to submit it to the Clerk's Office who will then submit it to all of you.
MR. KANEALI`I-KLEINFELDER: And then, if not following that procedure,
what is that?
MS. SCHOEN: I don't know if you folks, the Chair will disregard it; not
consider it. I mean I've seen occasions where you have considered something.
Say a communication from a member of the public who, you know, says, "I have
this testimony I want you to consider." So, I don't know.
MR. KANEALI`I-KLEINFELDER: Items for consideration for the Council,
though, submitted before a meeting to individual council members, but not
submitted as public agenda items is problematic.
MS. SCHOEN: It can be.
MR. KANEALI`I-KLEINFELDER: I think if not, it can be. Yes or no?
MS. SCHOEN: It can be.
MR. KANEALI`I-KLEINFELDER: It can be. Okay, okay, but, I mean for me
I'm looking at thisI think Mr. Van Pernis, although you may not want to call it
a disability, I think it may be. You know, disabling you in some aspect. Not that
it affects your ability to serve on a commission, but I think it definitely requires
us to give you a little bit more options at your disposal to get your point across
and to have a good discussion and not feel frustrated.
As far as the way this is brought forward and listening to some of the comments
from the Council Members, and the concerns and feelings of the Council
Members and seeing where this vote is going—you know, I don't know what the
purpose of this communication was, if this was a way to correct a behavior or to
actually have you removed. I mean I can't really tell at this point. I do defer to
my Kona Council Members. If the Kona Council Members feel that this should
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be more of a learning moment, you know, as we come to call these then let it be
that.
But from what I'm hearing today, you know, if this was any other position,
you've had a written warning and you go from there. Verbal warnings are great,
but until you write something down, I think we're all pretty aware of that when it
comes to bargaining union contracts or private industry.
You've had one written warning. I think you need to correct whatever behavior
is being addressed today, but I do think we on the County side need to take some
steps to make your ability to communicate with members of the public or your
commissioners easier for you. And not make it harder, especially given the
circumstances and we all deal with as far as having these meetings. Be careful
with your documentation going forward and the way that trail is handled. I
would just say that, and then you know, I appreciate the conversation today.
Thank you, Chair, I yield.
CHR KIERKIEWICZ: Mr. Inaba.
MR. INABA: Thank you. I'm going to keep this short. Mahalo to Council
Member Chung for sharing the idea of deferment. I'm going to support that.
Mr. Van Pernis, I think we've come to this point and I'm hoping that you're
hearing the concerns of some of the public, of our Planning Department, of my
colleagues here. At the same time, there's a lot of he said/she said with regards
to the training. And I think this is an opportunity for us as a County to maybe
standardize our training for boards and commissions and even for ourselves.
Because depending on who from Corp. Counsel goes, who from whatever
department goes to train a commissioner, we might be having different trainings.
And that might be something of a training module that we can create where we
know it's going to be consistent and commissioners sign that they have reviewed
and understand our rules, our procedures, Sunshine Law, basic Robert's Rules of
Order, and hopefully, that's something that we can consider, so moving forward
we don't have this kind of he said/she said. So I'll be supporting a deferment,
and I hope that we can have a little bit more respect amongst commissioners in
the Leeward Planning Commission and increase our overall efficiency and
effectiveness there. Chair, I yield.
CHR KIERKIEWICZ: Ms. Lee Loy, you had your light on.
MS. LEE LOY: I did. Clearly I can see where this is going and we're affording
Mr. Van Pernis a lot of latitude for what was bad behavior. And I'd just like to
see that however this body moves forward, if we're providing a lot of latitude to
a commissioner, we should be providing the same safeguards and guardrails for
the staff who are speaking up to their bosses to ask for help.
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We heard Mr. Vitousek ask for it, but two individuals, our Director and our
Deputy Director are here today shielding employees who are also asking for
help.
I saw a lot on the video, and earlier today somebody mentioned, it can go both
ways, right? I actually honed in on commissioners raising their hands because
they didn't want to interrupt Mr. Van Pernis. I saw a lot of monkey faces on top
of which people shutting off their cameras, because perhaps they just knew that
their reaction just was conduct unbecoming.
So, however we decide to move this forward I think it has to be fair to not only
the commissioners, but that the staff that is being impacted, have the same safety
net. That's all I'm asking for. If this is going to be fair and objective, it has to
be on both sides. Whatever that looks like, I'm willing to support a deferral, but
there needs to be consequences on both sides. There has to be, if not, the
behavior is not going to change.
And I'm a little alarmed that Chair Carr was consistently asking, but it wasn't
until Mr. Vitousek came along, in which now Mr. Van Pernis is saying, "Give
me another chance." He was willing to grind and grind on one particular Chair
Woman and now he's asking for a lot more latitude from a Chairman. And I will
leave it right there.
So my suggestion is, I think the Director and the Deputy Director of Planning
really needs to articulate what staff is asking for also, because enough is enough.
I am disappointed that we're here. And there are no mechanisms or processes. I
think there are, they're just not articulated in the Planning Department rules.
There's a lot within Robert's Rules of Order. And Mr. Van Pernis has been a
practicing attorney, and so these things are very much available to him.
Those are my thoughts and I'm looking at Chair David, who really is looking for
some balance here, which is why the deferral, but I think it has to be consistent.
Not just defer to the Call of the Chair. Thirty-days, measurable movement;
60-days, written letter of apology. Just something where on both sides people
are demonstrating the willingness to become passionate and show aloha on both
sides. Thank you, Chair, I yield.
CHR KIERKIEWICZ: Thank you, Ms. Lee Loy. Director Kern, you have your
light on?
MR. KERN: Yeah, thank you. Just, I want to make a couple comments. I do
feel like we have given a lot of accommodations. We're always happy to give
more. If you watch the videos, there's a lot of time given to allow the
communication more than any other commissioner, probably five time, ten times
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than anybody else. So I feel like the Chair people in my experience have been
very accommodating. Even the Planning Department always trying to be
accommodating.
I want to cautionI see where this is going, pretty clear. Do not put it on the
Commission. Do not put it on volunteers to make this happen. I think you as the
Council, with all due respect from the bottom of my heart, you guys knew this
could be tricky when he was originally confirmed. There was testimony and
such. It wasn't the easiest confirmation. We're here with the exact concern of
that testimony. That is time.
Furthermore, this isn't an individual who just came onto the scene. This is a
smart individual. This is a trained attorney for many years. They know these
things. This isn't a Robert's Rules situation. This is a behavioral situation, and
it's your folk's choice to do it. But I will say this, the kids who grew up getting
bullied, getting picked on, getting called haole, F-ing haole, all the time. It's not
right to allow people to be treated poorly, even if we disagree, period.
I don't have any further say in that. I'm going to continue to do my best that I
can. This is you're folk's say. This is your folks. How do we want our
community to be treated, kindly, politely or not? Thanks.
CHR KIERKIEWICZ: Mr. Inaba, you had your light on? I have you next on
my list. No? Okay. Ms. David. I'm sorry, Mr. Richards, you have been so
patient. You have the floor.
MR. RICHARDS: I was trying to practice decorum.
CHR KIERKIEWICZ: Noted for the record.
MR. RICHARDS: Couple of questions here, and I appreciate it Chair, thank
you. And I'm not sure if this is a question for Corp. Counsel. But authority
governing this? You know, Mr. Kern what you just said about, "Don't put this
on the commission." I'm very sensitive to that. We're the ones that approved,
so we're the ones that should make a decision on that, and I believe that.
But first of all, is there a precedence? It's my understanding there has been a
commissioner removed from something at some point. Or do I not have that
understood correctly? And I'm looking to Corp. Counsel, I have lots of
attorneys in the room. I'm not sure who to ask that question. Okay, Planning
not sure.
MR. KERN: I'm not sure.
MR. RICHARDS: Aloha, Renee. Thank you.
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MS. SCHOEN: I can only speak from the time that I've been with the County,
and I don't recall a removal being in this type of proceeding. There have been
requests in the past, but the commission member or board member would usually
leave on their own.
MR. RICHARDS: Okay, alright. And this is procedural, Chair, I'm trying to
figure this out. And so sure we have a precedence, and we're not sure of a
procedure other than the fact that it's logical that it would come to Council
approved the nomination. Jeff, how long you've been with Planning?
MR. DARROW: Over 22 years now.
MR. RICHARDS: How many commissioners have you dealt with in 22 years,
best guestimate?
MR. DARROW: Over 100 at least.
MR. RICHARDS: I'm bothered by the fact that, I think what Ms. Lee Loy said,
is we have the Director and the Deputy very concerned. We have three Chairs
very concerned. And we have a problem that we're facing. Now, I'm listening
to the Council, and I'm hearing what people are saying, but it comes back again,
how we're going to treat people going forward?
And I am not supportive of a deferment, because I think we need to make a
statement going forward. We have to do something going forward. Interesting
conversation that Ms. Lee Loy just said about having a letter of apology. I like
that because I think that's a public admittance of things have not been
functioning well up to this point.
But I think we need to make a stand in this is Leeward Planning. I am
concerned about all Planning, Leeward, Windward, and all and making a
statement. You know, what the Mayor said about how we plan on treating
people going forward. And we can disagree agreeably, but I don't like the
reference that, again I stated this before, that these are witnesses. They're not,
they're community members.
And I think this is here and I think, Heather, you made the comment,the nuclear
option. I think we're here because we don't have any other procedure in place,
realistically, to address this. And I think we don't have it because we haven't
had to ever address this. So that is problematic. But that being said, we still
need to address it and not pretend that this isn't a problem.
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And what Ms. Lee Loy said is we have Director and Deputy before us, but they
are here because rank and file is coming to them saying, "We've got a problem,
and we got to fix this problem." So I will, you know, we work in a democratic
environment here, I will support the decision of what this Council makes going
forward, but I think we need to be very firm. And my thoughts would be, this is
a Committee, this is not a Council. We go from here to Council, and we can
defer it in Council, but I think we should move it out of Committee. When
would the next Leeward Planning meeting be?
MR. KERN: The third Thursday of every month. One second.
MR. RICHARDS: We all grab our calendars. So we are talking the 22nd is that
correct?
MR. KERN: That's correct my bad, it's the third Thursday, because the correct
date, yeah, we got to do the 15d'.
MR. RICHARDS: Okay. My thoughts would be is that we'd move this from
Committee to Council. We will have a Leeward Planning meeting in-between
there and we can see how things run and then we can go from there. So that's
my thoughts on it going forward.
And one other question is that we keep talking about the video and how it was
presented and all. Is it being considered to just put the video up and let it run for
an hour-and-twenty minutes, and let the public watch this? So I would ask Chair
if that's something you would like to do. I throw that out as a possibility. Just
again, so everything's transparent above board, etcetera, etcetera. So with that,
thank you, and I yield.
CHR KIERKIEWICZ: Thank you Mr. Richards. Ms. David.
MS. DAVID: Thank you, Chair. And I'm not going to comment on the
deferment, because I think I've already stated my position on that. But I did
want to clarify something. Ms. Bartolome, about the submittal of the video.
And she did, actually, get instructions on how to submit it.
I did not get copied on her actual submission to the Clerk's Office, because for
some reason that email to me—copied to me went to my icloud email address. I
didn't know it even existed. And so when I found that, I saw it on, I believe it
was Thursday. Ms. Bartolome correct me if I'm wrong, that you had
acknowledged the instructions that you received from Clerk's Office on how to
submit it. But I think it was already sent out the other way also, you know,to the
individuals.
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But you did get the memo or the instructions and it did come to us and processed
according to how it was supposed to be. So I just wanted to make that note for
the record. I didn't know that because it went to icloud so I blame icloud.
Alright. I yield.
CHR KIERKIEWICZ: Thank you. Mr. Chung.
MR. CHUNG: Yeah, Madam Chairman, I'm going to make a motion to defer
with the proviso that this matter can be brought back to Committee and
agendized upon the request of any person who has voted in favor of the deferral.
That's my motion, and I'll speak on it if there's a second.
CHR KIERKIEWICZ: Great, I'll recognize it after I ask my questions. Thank
you Mr. Chung.
MR. CHUNG: Oh yeah, sorry, go ahead. I'm really, really sorry. No, go ahead,
go ahead.
CHR KIERKIEWICZ: Thank you. Yeah, I am Chair, I know I can go ahead,
thank you. I had a question for Corporation Counsel. Yes, J, or anyone.
Mike Vitousek mentioned concerns of Sunshine Law violations. Can you
elaborate?
(Note: At this time, Deputy Corporation Counsel J Yoshimoto came
forward to address the members of the Committee.)
MR. YOSHIMOTO: Madam Chair, could you elaborate?
CHR KIERKIEWICZ: During his testimony, I made note of a number of things
he mentioned. And one of them was, he was concerned about Sunshine Law
violations.
MR. YOSHIMOTO: In what context? I don't understand.
CHR KIERKIEWICZ: You're not sure, so I'm wondering if he reported any of
those concerns to you or maybe Jeff, Zendo are you folks aware? I think it's
pertinent to the discussion considering they get training around this. So,just
would like to know.
MR. YOSHIMOTO: Yeah, for the record, I didn't field any questions from
Mike Vitousek regarding Sunshine Law. I just got reassigned recently so I don't
know.
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MR. KERN: I think Mr. Vitousek should be asked directly on that, but I know
that there's issues regarding the Sunshine Law violations as far as, you know,
decorum and what you're discussing; as far as what's on the agenda, very similar
to how the Council operates.
CHR KIERKIEWICZ: Is he contacting applicants?
MR. KERN: I don't know, but I do know that
CHR KIERKIEWICZ: Because it's unlike Council where we are able to speak
to applicants prior to something coming before the body.
MR. KERN: Correct. And I would venture to say though, even discussing a
subject matter in depth that's not agendized is a Sunshine Law violation. And
the Chairs have always been very good about trying to stop that. Just like, you
know, Chairs on the Council and Committees do. And then when being pushed
further, and further, and further, I think that raises a lot of concern around that.
I'm not sure if there's more on his side. I keep a separation, you know, from the
Commission.
CHR KIERKIEWICZ: Okay, thank you. J, anything to add?
MR. YOSHIMOTO: I do recall a situation where there was some concerns in
the way in which the conduct—basically, when you're a commissioner, you're
supposed to review the evidence that's presented. Specifically, you're not
supposed to go outside and do your own research. Otherwise, that, you know,
would be considered a violation because you're going beyond the scope of your
meeting, right?
So, as I recall, that issue did come up when I was covering one of the meetings.
I'm try to remember when. It doesn't come to me directly, and I believe
Mr. Van Pernis did acknowledge that concern, but I don't know what
Mr. Vitousek is referring to. It might be another incident as well.
CHR KIERKIEWICZ: Yeah, I wish him and Nancy were available to us right
now.
MR. YOSHIMOTO: Right. So I believe, I mean, Mr. Van Pernis would
remember that incident because I think that happened on the record.
CHR KIERKIEWICZ: Okay, thank you. I have a question about Comm. 50.1,
and this is the transcripts for the Leeward Planning Commission related to the
Palamanui projects.
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You know, I Chair the Committee, so I want to make sure I'm reading through
all the minutes for the Commission meetings because they do provide really
great detail and context that's very relevant to our discussion here at Committee
level. What was really concerning to me was earlier in the discussion, Chair
Carr Smith and I believe the applicant felt as if there needed to be a disclosure or
there was a conflict of interest on the part of Commissioner Van Pernis.
I'm just curious if you have any insight into that, and here's why. Commissioner
Van Pernis made a number of amendments to the bill, but I found it to be so
interesting that at the end, once all those amendments were transmitted and voted
upon, he tried to kanalua out of voting on the actual bill. And kanalua is not an
actual vote. Kanalua is, you're going to wait to the end to see how everybody
votes and then you vote. And then he recused himself, and I just thought that
was really odd. Can you provide any insight into that?
(Note: At this time, Deputy Corporation Counsel Malia Hall came
forward to address the members of the Committee.)
MS. HALL: Sure, yeah, I mean, it was kind of unprecedented. We try to give
the commissions a little latitude to make amendments. But usually the
amendments come with the original motion. At that point, I thought he was
going to make the original motion, and it got really muddy, and so we were
giving him the latitude to kind of go in the direction that he wanted to go. But,
yeah, upon further review, I feel like, I probably should have stepped in and said
that he should have made the first motion. Then they could have amended, you
know, the initial approval or denial motion. Or actually, sorry, it's a
recommendation, so favorable or unfavorable recommendation.
The Chair did talk to me afterwards and so we've had that discussion, and it was
corrected. The next meeting we did make the correction of, you know, you have
to make the initial motion first and then you can make the amendments upon that
motion. But to make the motion and then recuse from the overall motion was,
yes, very suspect.
CHR KIERKIEWICZ: Was there a conflict of interest that we're not aware
about? I mean does he live near the project?
MS. HALL: I do not know where Mr. Van Pernis lives. We could ask him
where he lives, but if he wants to speak to that.
CHR KIERKIEWICZ: Mr. Van Pernis,just trying to get a little bit of insight
into a prior meeting you had on the commission related to the Palamanui project.
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MR. VAN PERNIS: If you read the entire transcript, you'll see that my vote
ended up as an abstained. The kanalua meant that you had to come back around
again and vote. It was not to see how the amendments went, because we all
knew the amendments would pass because we do things on a quorum basis, here.
So, now I will go along to get along and I will do much better, but I want to point
out that I did not receive the kind of training that Mr. Darrow and Counsel
referred to. It was just the paperwork and short presentation of Robert's Rules of
Order.
CHR KIERKIEWICZ: Yeah, thank you, Commissioner, I'm just trying to get a
better understanding as to why you put forward a number of amendments to a
bill that you ended up not voting on. And at the beginning of the meeting there
were a number of individuals that urged you had a conflict of interest. And so
I'm just looking to understand how things played out.
MR. VAN PERNIS: The matter of the alleged conflict of interest is in the
transcript for everybody to read it. The point of the conflict of interest was the
fact that I had deposed one of the applicants years and years ago as an attorney
when he claimed he had no interest in any royalty, and then when the application
came forward, it was situation where he allegedly did have an interest in the real
estate being the real estate on the application. I would also like to point out that
in that proceeding which was the Pua`a Development
CHR KIERKIEWICZ: I'm not talking about the Pua`a Development. Thank
you. Director Kern, do you have something to say?
MR. KERN: Yeah, I believe that the concern for conflict was where the
commissioner resided.
CHR KIERKIEWICZ: I'm sorry, what did you say?
MR. KERN: I believe the concern for conflict was where the commissioner
resided where his home is, where he lives.
CHR KIERKIEWICZ: But that wasn't disclosed during the meeting.
MR. KERN: Correct.
CHR KIERKIEWICZ: And he lives in near vicinity of the project?
MR. KERN: Makalei Estates.
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Point of Order: MS. VILLEGAS: Can I just, Point of Order. I don't understand how this
line of questioning on this topic relates directly to what we were talking
about for the communication. To me it feels very uncomfortable. And it
starts to feel like a witch hunt. So I'm just going to ask that
CHR KIERKIEWICZ: The communication that's before is regarding the
removal of a commissioner. And I'm looking at every piece of evidence that is
before us relating to his behavior as a commissioner on the body.
MS. VILLEGAS: I think it's interesting then that the term "evidence" is being
used, when the term "witness"was just said to be uncomfortable.
CHR KIERKIEWICZ: This whole conversation is uncomfortable. I feel like
I'm eating glass right now. I don't want to be doing this.
MS. VILLEGAS: Well a motion was already made.
CHR KIERKIEWICZ: I did not recognize it. Thank you. And I'm just trying
to explore, because as I said, this is not something that should be a surprise to
any of us here. We had a very, very robust uncomfortable conversation last year
regarding this appointment to the body. And everything that we were concerned
about has played out.
And staff is coming to us,pleading, "Please do not subject us to this any longer."
Chances have been given at every single Commission meeting, and we are at this
point where we make a decision, go, no-go. There's a motion on the floor to
recommend removal of this commissioner. We're going to vote on it today. We
are going to vote on that today. I think enough time has elapsed. This shouldn't
surprise anyone. This should insense you. The callousness, the combativeness,
the aggressiveness on the commission. No one should be subjected to that. No
one. Mr. Kern.
MR. KERN: To add to the former, earlier question, I believe one of the
Sunshine Law violations, or potential Sunshine Law concern, was an email sent
to the commissioners, basically a memorandum to Leeward Planning
Commission from Mr. Van Pernis. I'll read it real quickly. Sorry, this is the RE
(Residential) applications of Suffolk Development, LLC and Pua`a
Development, LLC, REZ (Rezoning) 04-24 and 04-25 from Commissioner Van
Pernis, dated July 31, 2020. "Some commissioners may wonder why I sought
bankruptcy information from the applicants Mr. Cooke at the February meeting
of the commission. Sometime ago I was an attorney conducted a sworn
deposition on Mr. Cooke concerning a longstanding foreclosure judgement my
client had against Mr. Cooke. He testified under oath that he had no money
other than social security income; that he had no interest in the various entities
where his name appeared . . ." and blah, blah, blah, blah. I can continue to read
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the rest of it if you'd like, but you get the gist of it. This is going way outside
any commissioner should do. So there's obviously multiple layers of concern.
CHR KIERKIEWICZ: There's the behavior. There's the concerns about
Sunshine. There's the Code of Ethics and behavior. I'm concerned about the
nondisclosure of residence when deliberating on a bill for a project near your
residence. Okay, thank you. There's a motion on the floor. Mr. Clerk, I'd like
to take a roll call vote.
MR. INABA: Chair, motion to postpone. Well, Mr. Chung, do you want to
make the motion? Okay.
Motion to Postpone: Mr. Inaba moved to postpone Comm. 183. Seconded
by Ms. David.
CHR KIERKIEWICZ: Any discussion?
MR. INABA: Well I think that we've had a robust conversation regarding a
postponement and with the idea that Mr. Van Pernis really needs to—for lack of
better words, shape up. This has been over, what, over three hours on one topic.
But this is your opportunity. Mr. Van Pernis, this is your opportunity and yeah,
that's kind of my mana`o on this. If you don't shape up, I'm sure this body is not
going to be tolerant of any further disrespectful or rude behavior in the
Commission. So that's my mana`o on a request for postponement.
CHR KIERKIEWICZ: Mr. Chung, your light's on.
MR. CHUNG: Yeah, thank you. And you know, Madam Chairman, you
touched upon it. You know,there were some warning signs when the
appointment came up. And in minds of some, maybe not all, you know, those
fears were realized.
You know, Mr. Kaneali`i-Kleinfelder spoke about, he was trying to get to some
point as to whether Mr. Van Pernis' speech impediment was a function of some
kind of disability. Yeah, I understand Mr. Van Pernis perfectly. I don't think he
has, I mean, you know, he's got some speech issues but he comes across very
clearly and very articulately.
The more pressing question is this, whether: One, he has a disability? And he
said no, so okay, I'll take him for that. But if he does have a disability, it's not
whether it affects his speech. It's whether it affects his understanding or his
ability to control his impulses. I don't know that, but Mr. Van Pernis, I'm going
to support this, and it's for the purpose of again, giving you a chance.
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I've done that in other cases, and I'm going to do it here, not in this kind of
specific case, of course. But, you know, I like giving people a chance to prove
themselves. But you're going to have to really change your delivery, okay. I
think your message is good and you're certainly entitled to vote however you
want, but you cannot be an impediment to the process.
I think, you know, you owe a responsibility to the public. You're in a very
responsible position. So you have to carry that out responsibly. You already
heard what Mr. Inaba said. You know, he's kind of like—he's giving you fair
warning. And I'm going to give you the fair warning as well. I'm telling you
this, and I don't want to talk down to you because, you know, you are a
respected member of the legal community.
But your behavior is really going to determine whether you stay on this board or
not, because if I'm counting correctly, if this kind of behavior continues, you're
at serious risk of being removed. And I don't want that to happen really, I really
don't. So could you just please do what you said, moderate your behavior and
your delivery and become more reasonable, which is what you should be doing
anyway. But could you please do that? That's all I ask. But I'm going to be
supporting the motion, thank you.
CHR KIERKIEWICZ: Ms. Lee Loy.
MS. LEE LOY: Thank you Chair. I'm actually going to be voting against the
deferral. I really wanted some guardrails to protect our employees. You know,
the liability that comes with a hostile work environment,just what
Mr. Van Pernis is presenting, I'm concerned about the exposure it causes
to the employees.
Like Ms. Kierkiewicz, I had raised some issues around his appointment. But I
also had the opportunity for the last year to read the transcripts. So for me, none
of this, the video, none of this is a surprise. Because if you read the background
report and the transcripts, you saw this behavior. And I really feel for staff
who's had to sit there and even relisten to this and feel that angst all over again.
I cannot support the deferral unless there is some actionable items behind it.
Whether it is 30 days of training; a letter of apology, or any request by an
employee that this is enough for them. And I listened to Director Kern who's
had his fair share of bullying. We have staff he's protecting because they're
feeling bullied. Bullied. And that's not what I want for our community. Where
employees feel that when they raise concerns to their superior, asking for help,
and the bully gets the exception. So that's where I stand on the deferral. I yield.
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CHR KIERKIEWICZ: Thank you. Anyone else?
MR. BROWN: Madam Chair, if you don't mind, in reviewing the Council's
rules, this is in terms to the motion that's on the floor right now. There are
definitely you guys have the option of postponing this item as well as other
agenda items. However, in your Council Rules it states that you guys either
postpone to a certain time or you guys could postpone to the call of the Chair.
So those are the motions, thereto, which shall be.
So, you guys are in discussion on a motion which is a little outside of your
Council Rules right now. But the body has to make a decision, but I wanted to
lay that out for you guys to decide on how you want to move forward.
CHR KIERKIEWICZ: Well it sounds to me based on the reading of the Rules
that our motion is counter to our rules. And I want to make sure that it is
something that is recognized. I don't want to be called out on a faulty motion.
Withdraw Motion Mr. Inaba withdrew his motion to postpone.
to Postpone:
Motion to Postpone: Mr. Inaba moved to postpone Comm. 183 to the call of
the Chair. Seconded by Ms. Villegas.
CHR KIERKIEWICZ: Any discussion on postponement? Ms. Kimball.
MS. KIMBALL: I just want to speak to Council Member Lee Loy's
recommendation about actionable items and ask the Clerk if you could
provide guidance. Is there the option for us to provide some conditions at this
point? What would be the mechanism for that?
MR. HENRICKS: Jon Henricks, County Clerk. It's really up to you folks as
a body. But I would caution against making things too complicated or
creating situations that could be left to somebody's judgement. Keeping
things as simple as possible, especially under these circumstances is probably
most advisable. You have a motion on the floor that you recognize is valid,
it's been seconded. Again, I would caution against adding qualifiers to it that
could present further complications.
MS. KIMBALL: Thank you, Mr. Clerk for that advice. No further comments
at this time. Thank you, Chair.
CHR KIERKIEWICZ: Thank you. Mr. Richards.
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MR. RICHARDS: Thank you Chair, and thanks Clerk on that one. I think I
agree with you, keep it simple. I'm going to fall back on what Ms. Lee Loy
said about our people and being mindful of them, and what they are reaching
out for. And I come back to our Director and Deputy Director from Planning.
Moving forward, again I can't support a deferment because we can move this
to Council, and then we can hold it at Council if we want to do that. But in
the meantime, though it's not a condition, we can ask for some sort of thing,
whether it be a letter, Chair, or something along those lines of an apology.
I'm concerned about the function of our County going forward. We keep
talking about wanting to go forward. We have to have everything functional.
We're talking about moving our Building Permit process, expediting it, and I
see roadblock, roadblock, roadblock right now. So I want to get this thing
done, whichever way to take it, so I'm not going to support a deferment. I
think we should take it to Council and we can hold it at Council if that's what
we need to do. But in the meantime, ask for an accommodation. And we can
ask the commissioner for what do they want to do to rectify the situation.
So that's where I am, because once again I come back. I'm concerned about
our people. These are our people and we need to be mindful of that. They're
taking care of the County Government, which is taking care of us. So with
that, I yield.
CHR KIERKIEWICZ: Thank you Mr. Richards. Ms. Kimball.
MS. KIMBALL: Thank you Chair. Given some of the comments, and I
certainly appreciate the impacts on the staff and the need to not let this linger.
My preference is to let it sit, though, here in Committee instead of going to
Council. So I would like to make a motion to amend the motion in the floor to
defer to one month or 30 days to the Council meeting, I guess it would be the
first Committee meeting in May.
CHR KIERKIEWICZ: Mr. Inaba, please withdraw your former motion?
MS. KIMBALL: I made a motion to amend the motion Chair.
CHR KIERKIEWICZ: My preference is for him to withdraw and let's just do a
brand new motion.
MS. KIMBALL: Sure.
CHR KIERKIEWICZ: Less complicated.
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Withdraw Motion: Mr. Inaba withdrew his motion.
Motion to Postpone: Ms. Kimball moved to postpone Comm. 183 to
May 4, 2021. Seconded by Mr. Inaba.
CHR KIERKIEWICZ: Any discussion?
MR. CHUNG: Yeah, I'd just like to know what the rationale is behind the
one-month deferral as opposed to the Call of the Chair. And the reason—I'll
state, you know, my reason for asking that. So what could happen is, you
know, I don't want to pick on Mr. Van Pernis, I'm supporting him actually,
right, in a kind of roundabout way. I hope he understands that. But what
could happen is, he could be on good behavior for one month, and then we
come back and because he was on good behavior, we vote down the request.
And then he starts doing stuff again. I mean that's why I'd rather kind of keep
it open. I'm more supportive of Mr. Inaba's motion, but you know, I'll do
whatever sees fit.
MS. KIMBALL: If I may, Chair?
CHR KIERKIEWICZ: Go ahead.
MS. KIMBALL: My reason for putting the time limit on was actually in
response to the comments made by Council Member Lee Loy and Council
Member Richards. And while I recognize what you're suggesting is possible,
that doesn't preclude—if we revisit this in a month after another hearing has
happened, potentially some other efforts have been made to accommodate or
mediate the situation, having that discussion then and making a decision at
that time doesn't preclude another request from the Mayor coming at a later
point if the behavior goes off the rails.
I'm with you and Holeka that this is a warning. Three hours plus, I can't
imagine a more solid warning in terms of the expectations of this body. And
whether it is, we defer to a month and at that time we make the decision to
follow through with the request of the Mayor, fine. But then there's no reason
that the Mayor can't actually request again if we decide not to make the
decision at that time. There were clear gaps and questions, I think, that the
Council Members put forth to some of the folks that were providing
information today that we don't have the complete picture. I'd rather have
that sooner than later. Thank you Chair, I yield.
CHR KIERKIEWICZ: Mr. Chung.
MR. CHUNG: Yeah, well. You know, I mean, following up on what
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Ms. Kimball said, you know, we have gone three hours here. If we go with
Mr. Inaba's motion, which is now off the table, but we may never see this
again. With yours we will see it again and if we vote it down, we may see it
another time. So, you know, I'll probably vote against this motion. Thank
you.
CHR KIERKIEWICZ: Ms. Lee Loy.
MS. LEE LOY: Thank you Chair. I'd like it to a certain date because there's
two sides to this, right? There's some relief to staff that it's just not hanging
out there, or they have to make a complaint to their supervisor to then bring it
up and go to the Chair to bring it forward. It's actually a nice backstop for
both parties.
And so I actually will be supporting the deferment to a date. However, I do
like Mr. Richards' idea, because at Council we're trigger ready. Whereas
Committee, it's like honeymoon period as Mr. Chung talked about, right?
We're going to have staff a little hypervigilant with, "Did I feel offended?"
But at least there's a certainty for everyone involved, including
Mr. Van Pernis. So I actually will be supporting the postponement to
the May 4 1 agenda. Thank you, Chair, I yield.
CHR KIERKIEWICZ: Thank you. Anyone else? And I know it's been a
long day, so just going to reiterate for the record,the motion on the floor
is to postpone our main motion, which is to recommend removal of
Mark Van Pernis from the Leeward Planning Commission. So just want to
make sure that everyone is crystal clear that when we come back on May 41h
that it's still on the table. And we're going to have to make a decision as to
what we're going to do. Okay? Just so we're all clear. So motion before us,
postpone this matter to the May 4 1 Planning Committee meeting.
MS. DAVID: Chair?
CHR KIERKIEWICZ: Go ahead.
MS. DAVID: I'm sorry,just a clarification. So if we postpone this to the day
certain, come back to Committee, at that time if someone wants to entertain a
motion to postpone again, that doesn't preclude us from doing that, right?
CHR KIERKIEWICZ: Correct.
MS. DAVID: Thank you. Just want it to be clear. I yield.
CHR KIERKIEWICZ: Mr. Clerk, roll call vote.
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Vote on Motion The motion to postpone Comm. 183 to May 4, 2021,
to Postpone: was carried by the following roll call vote.
(Approved)
Ayes: Committee Members Chung, David, Inaba,
Kaneali`i-Kleinfelder, Kimball, Lee Loy,
Richards, Villegas, and Chair Kierkiewicz—9.
Noes: None.
Absent: None.
Excused: None.
ORDER OF The Chair directed the Committee to proceed to the next order of business, Order
RESOLUTIONS: of Resolutions.
(There were none.)
BILLS FOR The Chair directed the Committee to proceed to the next order of business,
ORDINANCES: Bills for Ordinances.
(There were none.)
CHR. KIERKIEWICZ: Can I have a motion to adjourn?
ADJOURN- There being no further business, at 6:37 p.m., Ms. Lee Loy moved to adjourn the
MENT: meeting. Seconded by Mr. Inaba and carried by the following voice vote:
Ayes: Committee Members Chung, David, Inaba,
Kaneali`i-Kleinfelder, Kimball, Lee Loy,
Richards, Villegas, and Chair Kierkiewicz—9.
Noes: None.
Absent: None.
Excused: None.
Appro -d:
1
. shley L. Kierkiewicz, Chair (Date)
Planning Committee
AK/dt
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