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HomeMy WebLinkAboutCOM 0183.056 2020-2022 COUNTY CLERK COUNTY OF AI'l RECEMD Time 11:58d-01- Aloha Committee Members, Dat L 2021 1. Pattern of Behavior-Commissioner Van Pernis has long and well documented history of problematic behavior. Please review the order of suspension from the State of Hawaii Supreme Court Office of Disciplinary Council that describes three letters of admonition, as well as a suspension for pattern of inappropriate behaviors and professional misconduct between 1979- 2003: Office of Disciplinary Counsel v. Tian Pernis ORDER OF SUS'PENS'ION (By: Moon, C.J, Levinson, Nakayama, Acoba, and Duffy, JJ) Upon consideration of(1) the Disciplinaty Board's report and recommendation for the suspension of Respondent Mark Van Pernis (Respondent Van Pernis)from the practice of law for a period of three months, (2) the briefs that the parties filed pursuant to Rule 2.7(d) of the Rides of'the Supreme Court of Hawaii (RSC:H), and (3) the record, we conclude that Petitioner Office ofDisciplinat3' Counsel (Petitioner ODC)proved by clear and convincing evidence that Respondent Ilan Pernis (a) harassed a court-appointed foreclosure commissioner in violation ofRule 3.5(h) of the Hawaii Rules of Professional Conduct (HRPC), and (b) used means that had no substantial purpose other than to embarrass, delay, or burden the commissioner in violation of HRI'C Rule 4.4. In so doing, Respondent Tian Pernis demonstrated a pattern of recidivism in his professional misconduct, as evidencedhy the three previous letters of informal admonition that Petitioner UDC issued to Respondent Van Pernis in ODC 388 (July I6, 1979), ODC 1943 (March 30, 1987), and ODC' 5544 (February 23, 2000). Therefore, we adopt the Disciplinary Board's recommendation. Accordingly, ITIS HEREBY ORDERED that Respondent Ilan Pernis is suspended ftfom the practice of'law in this.jurisdiction for a period of three (3) months, effective thirty (30) days cfter entry of this order, as provided by RSCH Rule 2.16(c). DATED: Honolulu, Hawai'i, July 11, 2003. 2. Appointment to the Leeward Planning Commission-Commissioner Van Pernis faced heavy scrutiny when he was first appointed.The Planning Committee gave him a negative recommendation 5-2 and then the full council reversed its course with a 6-3 vote in favor of his appointment. In spite of the concerns about his behavior,The County Council saw the potential of a having a land use attorney with a lot of experience in Kona as an asset to the commission and where willing to give him a chance. I can absolutely understand why the Council was wiling to give him the benefit of the doubt. Comm. No. ID . Ref. To: P1 K! Ref. Date MY 0 4 2-021 3. Behavior on the Commission-I also decided not to prejudge Commissioner Van Pernis based on his past transgressions but allow him the opportunity to show the type of commissioner that he is through his actions. Having served with him for over a year, 1 have enough information to allow me to make my own determination. I believe that his tenure on the Planning Commission has been filled with discourteous and possibly unethical behavior. Previous LPC Chairperson Nancy Carr-Smith, and Deputy Corporation Counsel Malia Hall made multiple verbal and written attempts to address and correct his behavior. Please see the letter from Commissioner Carr- Smith dated October 9 2020: Aloha Mark, As a Commission, it is our job to read and listen to the Planning Department presentation, read and listen to the Applicants position and request, read and listen to the testimony from the public, and then apply the rules of the Commission, and make a decision. We are not there to make any person or party feel inferior, we are not there to make people feel like we have already made up our minds, and we are not there to be mean or condescending to anyone. When I have to scold a Commissioner for bad behavior, which i have had to do a every meeting that we have had since February, 1 feel the need to bring this to the attention of the Planning Department, and Corp. Counsel because it's just not right, and 1 think something has to change so that this does not continue. 1. Line of questioning is sometimes not appropriate. a. Asking testifiers questions and causing them to feel uncomfortable because they don't know the answer to the question is inappropriate and made me uncomfortable. While we encourage all Commissioners to ask questions, this must be done with proper courtesy and respect. b. The way that questions are asked is disheartening. it makes you sound mean, and the applicant and testifiers felt this and commented. I don't like having that happen, it's just not right and that is why I cut you off. I don't feel good about having to do that, but i will as Chairperson because it is my duty to maintain order and decorum during our meetings. c. During the September 29, 2020 meeting when the presentation and applicant went long, and we had many testifiers, we needed to stay on point, ask questions that we really need to know the answer to in order to help us make an informed decision, and not waste valuable time. 2. Interrupting people that you are questioning, and myself; was done several times, and then I have correct you, which is ridiculous, but I insist on maintaining order, and kindness throughout the process. Not to mention the nightmare it creates for the person that needs to write the transcripts of the meeting. I understand that your background as an attorney gives you a different perspective. But if you cannot leave that perspective at home and come to the meetings with your Community hat on, having an open mind and heart, then i am not sure what else to say. We are all volunteering our valuable time to sit on this Commission in order to support the County government, and the Community at the same time. If we cannot be fair and impartial then we should reconsider our position on the Commission. I hope that going forward, questioning and etiquette can improve so that we don't have to spend time disciplining, and so that our applicants are not uncomfortable. We need to respect all parties involved. Thanks for your understanding, Nancy Nancy Carr Smith, Chair Leeward Planning Commission In addition, please review the following instances problematic behavior prior to the April 6, 2021 Planning Committee meeting That were documented in a letter to Commissioner Van Pernis Dated April 12, 2021: 1. March 18, 2021: You requested to discuss an item that was not on the posted agenda for that meeting.As the Chair, I informed you that we could not discuss that item at that time due to Sunshine Law requirements, but that we could work with Planning Department staff to include it on a future agenda. You repeatedly attempted to discuss the issue despite my consistent and polite requests to cease, In order to maintain order and decorum I had to request that your microphone be muted multiple times. 2. March 18,2021: You mischaracterized statements from other Commissioners by stating that"we shouldn't do nothing"as Commissioner's Carr-Smith and Kealoho are proposing. The minutes reflect this is not an accurate representation of what the Commissioners stated. You are entitled to state your opinion, but it is discourteous to falsely characterize the opinions of your fellow Commissioners. 3. March 18, 2021: When Deputy Corporation Counsel interceded on your line of questioning to inform you that you were not in compliance with Sunshine Law you said, "don't interrupt."The Corporation Counsel was visually disturbed by your response and replied, "excuse me". The Chair informed you that it is the duty of Corporation Counsel to maintain compliance with Sunshine Law and to intercede when Commissioners run astray of the requirements. 4. October 15, 2020: The Applicant Palamanui Global Holdings LLC requested that you recuse yourself from the proceedings and you declined. You failed to disclose that you reside in the Makalei Estates Subdivision, which abuts with the Polamanui Project area on the east boundary. You requested multiple changes to the language of the application,such as removing a requirement to construct a University Drive to Makalei Drive and replacing Makalei Drive with the eastern boundary of the property(Condition S), which ensured that University Drive could not be constructed to connect to your neighborhood.As well as requesting amendments to language on access to Makalei Estates for work on the water system (Condition Y). You then abstained from voting on the matter. Your failure to disclose the fact that you live in a subdivision affected by the ordinance that you were reviewing, as well as your use of your position on the Leeward Planning Commission to remove language from the ordinance directly relating to the subdivision in which you reside gives a strong appearance of conflict of interest and is a possible ethics violation. This potential conflict of interest was revealed at the April 6,2021 Planning Committee meeting of the Hawaii County Council during questioning by Chair Kierkiewicz. This matter has been be forwarded to the Board of Ethics for review. (See attached Letter to Board of Ethics dated April 22, 2021) 3 3 5. Prior to the August 20, 2020 meeting you provided a Memorandum to the Leeward Planning Commissioners dated July 31,2020. In this Memorandum you state that the reason you questioned the applicant about his personal bankruptcy at the February 2020 meeting was because you had previously served as an attorney for on individual that had been awarded a foreclosure judgment from the applicant and that the applicant had quote: "escaped paying the judgement". This raises a question as 3 whether or not you utilized your position as a Commissioner to gain information on a legal matter in which you had been involved in, and whether you should have recused yourself to avoid the appearance of conflict of interest. I 6.Also included in the Memorandum dated July 31,2020 you state in writing that you personally contacted individuals associated with the ongoing Pua'a/Suffolk application, and questioned them on details of ownership and conditions of the ordinance outside of a duly agenized commission meeting. You j then and presented the findings of your independent investigation in writing to the commission. Sunshine law requires the Leeward Planning Commission receive information as group, you may not conduct your own investigations into applications outside of scope of duly agenized meetings. 7.August 20, 2020:Applicant's representative Mr.Sidney Fuke relayed the Applicant's believe that you have a personal bias against the applicant and requested that your comments be limited to topics that are germane to the application. Later in the meetingyou conducted what appeared to be a personal attack on Sidney Fuke who was acting as a Planning Consultant for an applicant stating that representing Pua'a/Suffolk was a "blight on his record"and"he should be embarrassed." 8. August 20,2020:Your questioning of traffic engineer Randall Okaneku was deemed to be unduly repetitious by Chair Carr Smith. You became combative with the Chair when she tried to hear from other i Commissioners. E 9. September 21,2020:Cross examination style questioning of members of the public testifying in support of the Hickey special permit application. For example, "are you aware that this application violates state land use regulations?"The applicant stated they believe that you were asking leading questions that prevented a fair and impartial discussion. 10. February 2020:Personal attack on Applicant Brian Cook asking if he had ever personally declared bankruptcy.Applicant asked, "why so personal?" 11. February 2020:Repeated interruptions and hostile questioning of applicant led Corporation Counsel to state that "If you are not going to act in a civil manner, we are going to ask you to leave."You responded by telling Corporation Counsel"I think you are out of order." 4. April 6,2021 Planning Committee Hearing-The Hawaii County Council Planning Committee met to discuss the Mayor's communication 183 that requested the removal of Commissioner Van Pernis from the Leeward Planning Commission. At that meeting I think we all recognized that Commissioner Van Pernis behavior on the commission is problematic. However, in understanding the potential upside of having a commissioner with his experience,the Committee and many members of the public in support of Commissioner Van Pernis offered suggestions about how to accommodate Commissioner Van Pernis in order to improve his behavior. It was suggested that he needed training, or that he needed alternative forms of communication to address a potential speech disability. It was not formally defined at the committee meeting, but it was suggested by multiple Committee members that the deferral of action on the removal of commissioner Van Pernis would serve as a sort of probationary period in which commissioner Van Pernis would have the opportunity to show that he can improve his behavior. I was with You. I was concerned about his behavior,but I was not in support of his removal from the commission at that time. I wanted to give Commissioner Van Pernis every opportunity to moderate his behavior as he offered to do at the Committee Hearing. I wanted to give him another chance to let his experience enhance the commission rather than have his behavior diminish it. 5. Efforts to Address Behavior and Accommodate Communication-One of the takeaways that I got from watching the April 6, 2021 Committee Meeting was that the Committee wanted me as Chair to take a more active roll in trying to address the concerns surrounding Commissioner Van Pernis behavior. As a volunteer board member, I did the best that I can to work with the Planning Department Staff and the corporation Council office to facilitate an environment where Commissioner Van Pernis can be successful. I hope that the efforts that we made were in line with what the committee wanted to see. I provided Commissioner Van Pernis with the following formal correspondence: April 12,2021 Mark Van Pernis P. O. Box 2156 Kailuo-Kona, Hl 96745 Aloha Commissioner Van Pernis, i am writing this letter in my capacity as Chair of the County of Hawaii Leeward Planning Commission. The purpose of this correspondence is to document, and to provide a written warning with respect to behavior that you displayed at the March 18, 2021 Commission meeting and as well as other behavior that you have displayed at times throughout your tenure on the Leeward Planning Commission.Specifically,you have displayed behavior, which is unnecessarily argumentative, adversarial, and disrespectful to members of the public who have appeared before the commission, Commission and Planning Department staff, and your fellow commissioners. This includes but is not limited to speaking in a discourteous, accusatory and condescending manner, questioning applicants or others about matters not relevant to the pending application not listed on the Commission agenda, conducting your own personal investigation into matters before the Commission,refusing the chairs requests to limit your questioning to relevant matters and/or to conduct your questioning or speaking in a civil and respectful manner, and refusing to disclose information about your personal interest in applications that you are reviewing. These behaviors, with reference to specific examples are further described in the subsequent attachment. By this letter, I make clear that these behaviors will not be tolerated. Your behavior reflects ' poorly on all of us as a Commission and detracts from the public perception that this body can represent our community in a fair, orderly, and respectful manner. On April 6th, 2021, the Hawaii County Council Planning Committee met to discuss Communication 183, Mayor Roth's recommendation that you be removed from the Leeward Planning Commission.At this meeting, the majority of Council members, including those opposed to your removal from the commission, recognized that your behavior on the Commission is problematic. One of the concerns raised by the County Council was whether you had been received adequate training for your role as a Planning Commissioner. You denied having received training.As Chair of the Leeward Planning Commission, I request that you refrain from attending anyfuture Leeward Planning Commission Meetings until you have completed training or re- training on Planning Commission Rules of Practice and Procedure, Roberts Rules of Order, Code 3 of Ethics, and State of Hawaii Office of Information Practices "Sunshine Low". This training will be conducted by the County of Hawaii Corporation Counsel at a mutually agreed upon time and place. If there is anything 1 can do to help facilitate your getting this training as soon as possible and before our next Commission meeting,please let me know. Also, at the April 6, 2021 Planning Committee meeting members of the Hawai'i County Council recommended that you provide a written apology to your fellow Commission members and planning department staff for the discourteous behavior that you have displayed in the past.As Commission Chair I ask that you provide the requested written apology and that you confirm the commitment you made at the April 6,2021 Howai'i County Council Planning Committee Meeting to moderate your behavior and to operate within the parameters of the Planning Commission rules prior to rejoining the Leeward Planning Commission. Once you rejoin the Leeward Planning Commission following the completion of your retraining, and the receipt by the Commission of your written apology, I sincerely hope that you will work with the me as the Chair and with Planning Department staff to implement any needed procedures and protocols that would improve your ability to effectively and respectfully convey your opinions and perspective.Again, we will gladly assist in anyway we can help. After the completion of your re-training, in the event there are recurrences of behaviors disruptive to the order of the Leeward Planning Commission meetings or which fail to extend appropriate courtesy and respect to any applicant, County of Hawaii staff person, member of the public or your fellow commissioners,please understand that 1 will not hesitate to exercise authority as chair pursuant to County of Hawaii Rules of Practice and Procedure Rule 1-5(j)to address these behaviors and, if necessary, to remove you from the meeting. I will provide you with one verbal warning, if you do not heed this warning, I will call a recess and give you a second verbal warning. If there is any further disruptive, disrespectful, or discourteous behavior following the recess, you will be removed from the meeting. It is important that we mutually understand the procedures that will be put in place to maintain decorum. 1 will apply the same standards and protocols to all members of the Commission. If you are to continue to serve on the Leeward Planning Commission under my Chairpersonship, we will not allow your behavior to diminish the importance of our collective responsibility to represent the people of Hawaii County with respect, with fairness, and with aloha. It is my sincere hope that you will take this under consideration and reflect on the personal responsibility that you have to the community that you represent. f believe that if you can conduct yourself in a manner befitting the Leeward Planning Commission, and avoid conflict of interest, you will be able to effectively contribute your knowledge to the goals of the Commission in maintaining the qualities that make our home island unique. Mahalo, Michael Vitousek, Chair County of Hawaii Leeward Planning Commission County Planning Staff and Corp. Council Staff worked with me diligently to follow up with every aspect of the letter in order to provide Commissioner Van Pernis with the needed training and accommodations prior to the next Commission meeting so that he could meet the terms that had been set out for his participation. On very short notice, Deputy Corporation Counsel J Yoshimoto provided re- training with Commissioner Van Pernis on April 13, 2021, Although Commissioner Van Pernis Stated he does not think of himself as having a disability effort were made to accommodate his potential speech disability. Planning Department Manager Maija Jackson coordinated with the county of Hawaii ADA compliance specialist who informed us that even if an individual does not claim a disability accommodation can me made based on an apparent disability. We offered the use of a special head set and offered for Commissioner Van Pernis to provide his questions in writing in advance if he would like. 6. April 15,2021 Planning Commission Meeting-For the majority of the meeting, Commissioner Van Pernis was able to moderate his behavior as he had offered. Even when his behavior was appropriate,the questions that he provided in writing were unduly repetitious or unnecessary and had to be limited by the chair.The questions were read by planning department staff,so there is no verbal miscommunication that can that can account for the content of the questions that take on the nature of a cross-examination. These repetitive cross examination-like lines of questioning by themselves create an unnecessary environment of conflict that members of our community should not have to face.The leading questions presented here could easily be replaced by a simple and direct discussion of Commissioner Van Pernis Concerns. It seems unnecessary to pry an admission to the fact that there is traffic in Kona out of the applicant (Mrs. Koizumi)when it is well known that there is traffic in Kona. Please review a sample of the written questions provided on the following page: Front: tett# rr cot utile t: KoliE t Rd a appb ation, KY tr star;Applicant j Date; Apol 14.2021 at 8:07 ek _ l To,, test Mupvvt-n hawai,:rcom i I- Have you aajdrapplied for or rrtce v d a aTVR ( t n Terra Vacation Rentall for this property If sty wn t was the resat°? Naas there a 8&B operation on this propedy b6tota Itne Appiio6tion? rt so,for what pats of time did it operate? And J so.Baas there any penafty assessed t sir,what Was the penalty' 3.Do you know hmv many 0+fir Os and STVF ,both li ttsed or permitted arunlicamed or unperrratted,are within rn few utiles of than pr Ky?{Don't give naris at locations,aunt the number}° If you kmw,what's Wri number? l .wonI poor coming to your proposed S 4 5€rorn the airport use two lane,Kai'mvirtarri Drive and iherr two lana l maiafroa Witowayl I . ori'l Kona oaatview,Rolla Hhlands,university Heights,Matt i f�atatat Kclo o Mauxa wibdivirions, other subdivisions,and many,marry properties,as well as traffic to and from Waikafoaand the Mtireea wen„use the two lane Marnalahoa Highway near this properly? I 6.Hasn't the traffsc on Matnal hoa greatly iricreased in the last few yearn,such that sometimes it ba6s up and sometimes its very stoat/or stip! d i 7 H&s fl re been any traffic s~ludy or enter Ivor&that yoLire aware of than measures what the traffic is in both lanes of tvtar atahcra arid measures yrdlcts what effect the trat#i e�arsaFttahotfi the mop 8&f3 old t � 8_How do you pfopose to keep access traffic to the &8 on Le6momi West,whrOtho Applicatirwr says needs work,+ g,is then Applicant willing to agree to a['ordibon that all a o and Worn th crr��rr tFie€�&F�s ��l�usi qty be on and from Leimomi Street'? �lu,t � t � �� f ��� ttrrsu�ta.�tLt�,tttt y�sur ria , . . itks ;itkt�u-w;tt' iut t.�."ii�`� '? � While Commissioner Van Pernis was able to moderate his behavior for much of the meeting, he was unable to do so throughout the entire meeting. Commissioner Van Pernis in a conflict with the applicant that became very personal,very discourteous and entirely inappropriate for a Planning Commissioner. I do not have the transcript available but I understand that a video of the interaction is available to be viewed by planning Committee members. To the best of my recollection the issue started when the applicant,who is herself an attorney,stated her legal opinion that anyjudge worth their salt would throw out a case where someone was seeking damages against their neighbors for actions relating to their permit application. Commissioner Van Pernis stated that according to the applicant, he may not be wort a salt but he disagreed with her legal opinion. It is fine to disagree with an opinion but it must be done in away that does become a personal conflict. Commissioner Van Pernis went onto mischaracterize the testimony from applicant in a discourteous manner stating that the applicant thinks the neibors shouldn't be listed to because they are just rich people living in big houses, and had to be 1 verbally warned by the chair that he was welcome to express his opinions but he could not state the applicants' opinions for them. The interaction literally brough the applicant to tears. This was a difficult agenda item and the Commission ultimately voted to reject the application. The applicant has since filed a formal ethics complaint against Commissioner Van Pernis Based on the treatment that she i I i 3 'l received from him and provided the following statement of her position in her ethics complaint that was filed on April 29, 2021: 1. Provide a statement of your position or contention: In our case, there are flour main areas ofconcern at issue witli t:(iminissioner Van Pernis's conin eats, behavior and conflicts of`interest. i. His unprofessional, a weleomin , rude,and sometimes hostile comments and behavior towards myself as the applicant and the testifiers who testified in sul)port of our application. ii. His clear Bias against our application from the start Of the proceedings in the /21 hearing,Before lie had beard all testitno:ny or even seen our entire presentation it was clear that he had made up his mind, iii. His non-disclosure of a relationship with the neighbors in apposition to our application.A non-disclosure which, if it had been disclosed,ww ould have caused cis to ash: that he abstain.and would have chanced the outcome of our application. Iv. He has either a poor working understanding of the Hawaii County Adininistrative Code or an opposition to the code as lie has stated, numerous times.,that he makes his decisions lased on what lie feels is"best for West Haw-aii"rather than lased an I interpretation and application of the Administrative Code. as written. in the legal world this is referred to as "legislating from the bench"and it is a mark of a poor fudge and someone who cannot he trusted to be impartial. For example, he states his apposition numerous times to the existence of SUPs in principle can important agricultural land - a clear use which is allowed by tlwe Hawaii County Adrninistrativ Code_ By having a difficult decision made by the commission marred by an ethic complaint as a result of the behavior by Commissioner Van Pernis during the period of time that he is supposed to be proving to the committee that he can moderate his behavior is a clear indication that he simply cannot behave in a respectful and courteous manner. I am so so disappointed by this outcome. We made every effort to provide an environment where commissioner Van Pernis could be successful and provide his opinions without being disrespectful. Honestly, I felt like I had personally let down the applicant, my fellow commissioners, and the County of Hawaii by allowing this type of behavior to happen again. E I realize now that there is nothing that any of us can do to change the pattern of abusive, discourteous, disrespectful and potentially unethical behavior that Mark Van Pernis Pernis has displayed throughout 'E his entire career and throughout his tenure on the Leeward Planning Commission. To the committee members, It is not our fault that we gave him the opportunity to improve his behavior and he could not. However, It would be our fault, if we allow him to stay on the commission knowing that there is nothing that we can do to improve this behavior. It is with great regret that I now fully support the Mayor's request to remove Mark Van Pernis from the Leeward Planning Commission. I see it as the only viable option for maintaining a professional, courteous,and ethical environment wherein the decisions of the commission will not be challenged on the basis of Commissioner Van Pernis Behavior. The members of the Planning Commission have volunteered for this responsibility in order to make our community a better place. In my opinion, Mark Van Pernis presence on the commission will always create hostility,tension and will always dimmish the kuleana of the commission. I am afraid that his continued presence on the commission would cause me to have to reevaluate whether this is something that is worth the time that I put into it. I don't want to be a part of anything that that leaves people feeling as though they have been disrespected, mistreated, or not given a fair chance. Mahalo or your consideration, Mike Vitousek 4aJ�ZYaOo y��4 Mitchell D.Roth Michael Vitousek,Chair Mayor ' Max Newberg,Vice-Chair Nancy Carr Strath Lee E.Lord +al Barbara DeFraneo Managing r9rt K g Director _Q.• , Clement"C7"Karmha III Mark Van Pernis County of Hawaii Faith"Faye"Yates LEEWARD PLANNING COMMISSION Aupuni Center • 101 Pauahi Street,Suite 3 • Hilo,Hawaii 96720 Phone(808)961-8288 Fax(808)961-8742 April 22, 2021 Chair David Wiseman Board of Ethics County of Hawaii 101 Aupum Street, Suite 325 Hilo,HI 96720 Aloha Board of Ethics, I am writing in my official capacity as Chair of the Leeward Planning Commission to receive guidance from the Board of Ethics as to whether or not the actions of one of the Leeward Planning Commissioners potentially constitutes an ethics violation. The issue was identified at the April 6, 2021 Planning Committee meeting of the Hawaii County Council where the Committee met to discuss Communication 183, Mayor Roth's recommendation that Commissioner Mark Van Pernis be removed from the Leeward Planning Commission. During questioning, it was suggested that at the November 19, 2020 meeting of the Leeward Planning Commission, Commissioner Van Perris may have used his position on the Commission to influence proceedings that have an effect on the subdivision in which he resides. The items that were discussed are as follows: APPLICANT: PALAMANUI GLOBAL HOLDINGS LLC (AMEND REZ 05-000010) Application to amend Condition V (Scope and Timing of Road Improvements) and Condition S (Scope and Timing of Park Improvements) of Ordinance No. 09-132, which amended Ordinance No. 06-105, which rezoned 725 acres from an Agricultural-3 acres (A-3a) and Open to a Project District zoning district for a mixed-use development known as the Palamanui Development_ The property is located northeast of the Kona International Airport at Keahole,between Queen Ka`ahumanu Highway and Makalei Estates Subdivision, Kau,North Kona, Hawaii, TMK: (3) 7-2-005: Portion of 001. Hativai`i County is an Equal Opportunity Provider and Ewphoyer Chair David Wiseman Board of Ethics County of Hawaii Page 2 April 22, 2021 APPLICANT: PALAMANUI GLOBAL HOLDINGS LLC (AMEND REZ 09-000094) Application for a time extension to Condition E(Secure Final Subdivision Approval) of Ordinance No. 09-131, which rezoned 29.92 acres from the Project District (PD) to Industrial- Commercial Mixed-20,000 square feet(MCX-20) zoning district in 2009. The property is part of the proposed Palamanui development located northeast of the Kona International Airport at Keahole, between Queen Ka`ahurnanu.Highway and Makalei Estates Subdivision, Kau,North Kona,Hawaii, TMK: (3) 7-2-00.5: Portion of 001. Prior to the onset of the meeting,the applicant Palamanui Global Holdings LLC requested that Commissioner Van Pernis recuse himself from the proceedings due to previous opinions that he had publicly shared in the newspaper that were critical of the Palamanui Development. Commissioner Van Perris declined to recuse himself During the discussion, Commissioner Van Perris requested multiple revisions to the rezoning ordinances that affect the Makalei Estates Subdivision. The following excerpts in italic are from the minutes of the November 19, 2020 Leeward Planning Commission meeting: VANPERNIS: There are several references to Malzalei Drive in your presentation and in the proposed ordinance.I agree that you do note that Malclei Drive is private. I'm suggesting, as Mr. Fake has, as Kent[sic] has, that the reference to connections of any Palamanui roads be deleted since Makalei Drive does not abut Palamanui's property.,, and that the boundary be, or- the end of the Palamanui roams, whatever they may be, be, as Mr. Ftrke said and the proposed ordinance refers to one point, the boundary of the Palamanzri property. Otherwise, the implication is that they, there should be condemnation or trespass onto the Malfalei property to connect with the improved road, which does not go to the boundary. CHAIR CARR S'MITII: Okay. Mr. Tran Pernis, VANPERNIS: Yes. I am quite knowledgeable about the Makalei roads. It's private, gated top and bottom. There is no waterline easement under it; the waterline easement is to the north. And there is no possibility in my opinion of connecting that road up to Mamalahoa with the Palamanui's road, and that is because first of all there is going to be another connector road, and secondly, JUdkalei Drive is substandard with upgrades to beg, and even more importantly, if they were going to condemn, the county or somebody, if they were going to condemn the private i t t i E Chair David Wiseman Board of Ethics County of Hawaii Page 3 April 22, 2021 Makdlei road into a public road, they had to pay huge damages to the people on that road, and that's not going to happen. Since this application was originally approved and subsequently amended, that road has been deeded in fee simple to the association, so it's off the table as far as the conmy and the Pdlamanui is concerned. VANPERNIS:And then also there is a provision-, I believe Idon't know within the golden copy—where access is allowed on Mdkalei Drive to construction vehicles ofPdlamonui for woi* on the waterline. Now, that's a private road, so that—and I assume the county or Pdlamanui is not going to pay,for damages or the bond that the Palamanui[sic] association requires. And also, the easement, I believe, goes along the northern edge of the property riff the Milkalei properly, not down Makdlei Drive. Makdlei Drive is not on eastern edge, so there is, there is � various side roads, which have names. So, that particular provision should be deleted because there is no access from Mak%rlei road to the area of the easement. And in addition, there is improved lots adfoining the easement so that if they tried to get construction vehicles over there, assuming they had the same information, they'd have to destroy some of the improvements. So that provision should be deleted as well. That concerns the water. Commissioner Van Perris requests to remove a requirement to construct University Drive to Makdlei Drive by replacing the term Makdlei Drive with the eastern boundary of the property (Condition S), as well as requested amendments to language on access to Mdlcalei Estates for work on the water system(Condition Y)were incorporated into the final language of the rezone amendment that was voted on by the Leeward Planning Commission. However, when it came time to vote on the recommendation to be forwarded to the County Council, Commissioner Van Perris abstained: VANPERNIS:I clarified this with Mr. Darrow, and my position is abstain. 'HAIR CARR SMITH.Abstain, okay, on both of those agenda items. Is that correct? VANPERNIS:I voted in,favor of Mr. Vitousek's amendment, but I abstain on the recommendation. At the time, the changes to delete Makdlei Drive, and to limit work in the Makdlei Subdivision to the existing water system easements seemed harmless and were included in the rezone language in the interest of moving forward. Commissioner Van Pernis abstaining from the vote that included conditions that he had put in place seemed unusual at the time. But it was not until it was revealed that Commissioner Van Perris resides in the Mdkdlei Estates Subdivision and did not to disclose the fact that he lives in the Makdlei Estates,were questions raised that require an opinion from the Board of Ethics. Chair David Wiseman Board of Ethics County of Hawaii Page 4 April 22, 2021 The changes that were made to the ordinances may not be substantial, but the Commissioner's failure to disclose the fact that he lives in a subdivision affected by the ordinance that he was reviewing, as well as the fact that the Commissioner used their position on the Leeward Planning Commission to remove language from the ordinance directly relating to the subdivision in which they reside has raised questions about a possible conflict of interest. Therefore, I request that the Board of Ethics review the incident in question and provide a determination as to whether or not this action constitutes a violation of the County Code of Ethics. Sincerely, J Ally, � ' 4 l.hael it. M4n,Wr z3,2:r71?.G 15" Michael Vitousek, Chair Leeward.Planning Commission a Ethics Letter "M�� Final Audit Report 2021-04-23 Created: 2021-04-23 By: Melissa Dacayanan(mdacayanan@hawaiicounty.gov) Status: Signed Transaction ID: CBJCHBCAABAAAgox5nBODdyhi7LH4b3g5fgLAIDRWkiO "Ethics Letter" History 'i Document created by Melissa Dacayanan (mdacayanan@hawaiicounty.gov) 2021-04-23-7:52:35 PM GMT-IP address:173.197.89.164 �3 Document emailed to Michael Vitousek(mvitouse@gmail.com)for signature 2021-04-23-7:52:58 PM GMT Email viewed by Michael Vitousek(mvitouse@gmail.com) 2021-04-23-8:20:43 PM GMT-IP address:66.249.84.87 Document e-signed by Michael Vitousek(mvitouse@gmail.com) Signature Date:2021-04-23-8:21:13 PM GMT-Time Source:server-IP address:67.52.67.186 Agreement completed. 2021-04-23-8:21:13 PM GMT LeAdobeSign