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HomeMy WebLinkAboutCOM 0183.062 2020-2022 c July 30, 2021 Aloha Members of the Hawaii County Council, I will always believe in giving people a chance. To the council members who originally voted to confirm Commissioner Van Pernis I want to let you know that I think you made the right decision at the time. Sure, there were concerns, but I can see why we couldn't pass up on the opportunity to have a commissioner with that resume. You took a risk on him and gave him a chance. I respect that. But giving someone a chance means letting someone prove whether or not they are capable of accomplishing the goals set out for them and evaluating their performance. Mark Van Pernis has unquestionably proved to his fellow planning commissioners that he is not capable of maintaining the behavior needed top uphold the integrity of the leeward planning commission. Unfortunately, from his very first meeting his behavior created conflict that hindered his ability to add to the commission's purpose and duties. At his first meeting Deputy Corp Counsel had to threaten to remove him from the meeting. It didn't get better. He since carried on with personal attacks as well as discourteous, disrespectful and unnecessarily argumentative behavior directed to applicants,testifiers, other commissioners. I believe that he behaves differently when he has personal interest or personal history with agenda items or applicants and is willing to bend rules to serve his need. One example among many: July 31, 2020 An excerpt from a memorandum commissioner Van Pernis sent to the commissioners indicates his attempt to use his platform as a commissioner to get information on a legal matter that he had been personally involved in: Memorandum to Commissioners of Leeward Planning Commission Re:Applications of Suffolk Development LLC and Puaa Development LLC, REZs 04-24 and 04-25 From: Commissioner Mark Van Pernis Date:July 31st,2020 Some Commissioners may wonder why 1 sought bankruptcy information from the applicant`s Mr. Cook at the February meeting of the Commission. Some time ago, 1 as an attorney conducted a sworn deposition of Mr. Cook concerning a long standing foreclosure judgment of my client had against Mr Cook. 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 being several, including those of the present applications), that they were Mr. Schuler's entities, who paid all their costs, and Mr. Cook was named in them as a "front"for Mr. Schuler, that he was dependent on Mr. Schuler if and when any related income appeared, and he lived in Mr.Schuler's Kona residence. This contradicts what he testified to at the Commission's February hearing. He also testified in that deposition that his bankruptcy was of a date more recent than what he testified to at the Commission's February hearing. Mr. Cook thus escaped paying the judgement, and my client has since passed away. This raises a serious issue of Mr. Cook's credibility.) The consistent conflict and hostility created by this one individual during his first year(2020) on the commission had a huge effect on everyone involved with the planning commission. Communication Comm. No. Ref. T : �+ Ref. ate AUG - 3 2021 183, the request to remove Commissioner Van Pernis was not a sudden decision. It certainly was not the result of him "asking hard questions" or"pointing out a potential conflict of interest" as he would have you believe. It was the result of his behavior. It is the consequence of his actions during his entire tenure on the commission that led to requests from multiple commissioners, myself included, multiple county planning department staff members, who I have spoken to personally, and many applicants and testifiers to request that something be done to protect the integrity of the commission. I When we were seeking a solution,we didn't necessarily mean to go to the "nuclear option" of removal right away. I can absolutely understand the reluctance that many of the council members had when this request initially came in. Given what was presented at the first planning committee meeting on April 6, 1 get it why this was deferred.And I understand why it was referred back to the commission to be dealt with.This was giving commissioner Van Pernis another chance, as some would put it, his last chance. Commissioner Van Pernis apologized and he made a commitment to "moderate his behavior." Our volunteer board has done everything in our power to fill in behind communication 183 with a process to accommodate, educate, evaluate commissioner Van Pernis performance on the Planning commission. We provided him with a formal disciplinary letter dated April 12, 2021 that provided examples of behavior that will not be tolerated and established expectations for future behavior. We provided formal re-training on Planning Commission Rules of Practice and Procedure, Roberts Rules of Order, Code of Ethics, and State of Hawaii Office of Information Practices"Sunshine Law" Conducted by County of Hawaii Corporation Counsel and planning department staff. I believe that most rational people in commissioner Van Pernis situation where their behavior is being directly monitored and evaluated in a probationary period would be on their best behavior. However, in the commission meeting immediately following the corrective action procedures, and in every meeting since, his behavior has continued to disrupt the order of the meetings. This is documented in the ethics complaint filed against him by a member of the public for disrespectful discourteous treatment during the April 12, 2021 meeting and in points of order that were called in the May 20, 2021 and June 16, 2021 meeting. His behavior continues because he is not capable of changing it.The examples and documentation in meeting minutes and transcripts are as follows. 1.April 15,2021 Planning Commission Meeting-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 engaged in a conflict with the applicant that became very personal,very discourteous and entirely inappropriate for a Planning Commissioner. This conversation is presented below: K. HICKEY:...And also, any judge worth their salt would throw out a case that sued all of the neighbors if there was already a waiver in place saying that they could not sue the neighbors. So that's our plan.... I VAN PERNIS: ...And maybe I'm not worth salt, like you say, but arbitration clauses and the waivers are not guarantees that there won't be litigation, and that it can be limited to a certain amount. K. HICKEY: I mean, in that situ—sorry,first, Commissioner Van Pernis, I'm really sorry, I didn't mean to say anything disrespectful to you, I meant judges would throw out the case, not, not the attorneys. As far as buses go... 1 I a I I I s -continued- VAN PERNIS:Yes. You may recall that the applicant said that she wants to see ag property preserved.That's ag property other than hers... ...They say all the other landowners shouldn't be listened to because they are just rich guys living in big houses up there. Well, Wendy Mitchell worked for, as a social worker, and her husband worked, too, and they farmed on the side, so we shouldn't be talking stink about, about them just because these people choose, or try to work coffee and weddings, rather than else— VITOUSEK: Commissioner Van Pernis, let's try to avoid putting words into their mouths— VAN PERNIS: Okay— VITOUSEK: —you're welcome to state your opinion, but please don't try to state theirs. I a VAN PERNIS: ...More and more Special Permits overcoming zoning, pretty soon you destroy the ag zoning. We are here,the commission is here, to represent West Hawaii, not the Hickeys. And we need to consider all of West Hawai'i, not just the Hickeys.Thank you. Commissioner Van Pernis inability to adhere to agenda items, inability to respect the authority of the chair in maintaining order, and in ability to refrain from being unnecessarily argumentative were displayed at the may 20, 2021 meeting: 2. May 20,2021 Planning Commission Meeting Agenda Item 3#Commissioner Van Pernis brought up a past agenda item (Palamanui) during the discussion of the current agenda. As chair I tried to stop the discussion of Palamanui to avoid sunshine law violation. Commissioner DeFranco called a point of order and Commissioner Van Pernis repeatedly interrupted the chair in my efforts to return the meeting to order and return the discussion to the duly agenized item. Pursuant to the disciplinary procedures outlined in the April 12, 2021 letter to Commissioner Van Pernis I issued a verbal warning.This did not stop commissioner Van Pernis from interrupting and a recess was called. During the recess, commissioner continued to be argumentative and continued to interrupt until I informed him that I don't want to have to remove him from the meeting, but I will. Please find the transcript of the meeting: VITOUSEK: Second by Commissioner Carr Smith. Any discussion on this item? Commissioner Van Pernis. VAN PERNIS:There is no question that this subdivision will add traffic to Mamalahoa and Ka'iminani.There is a certain time of the day there is no question that the traffic on those two roads is terrible and dangerous, and there have been fatalities. Now, why is that?That's partly because the Planning Department, partly because the Planning Commission, have approved up to 25 years delay over the bypass road that goes,that Palamanui is supposed to build and was supposed to build by 2005, which would alleviate— VITOUSEK: Commissioner Van Pernis, Commissioner Van Pernis,that's not a topic of this agenda item— VAN PERNIS: It is on this agenda item. I'm just pointing out that we,the Planning Commission and the Planning Department, approved delays in the bypass road, and that that's why we have these traffic problems.And the Planning Department and the Planning Commission need to look at— DEFRANCO:This is a point of order. He is asking and answering his own question, sorry. VAN PERNIS: Let me finish. VITOUSEK: I'll give you a warning, verbal warning— VAN PERNIS: All right— VITOUSEK: (Indiscernible—simultaneous speech) VAN PERNIS: —let me point out that all of the— VITOUSEK: Commissioner Van Pernis, hold on— VAN PERNIS: —traffic mitigation— VITOUSEK: Okay, I'm going to call a recess, a short recess, and I'll have a discussion with Commissioner Van Pernis.Thank you, everybody, please resume in five minutes. Commissioner Van Pernis has taken a personal interest in the way that Time Extensions for zoning ordinances are processed. This topic was agenized at his request and discussed to the satisfaction of the other commissioners at the March 18, 2021 meeting.Over the next months, Commissioner Van Pernis made repeated requests to have his questions put on the agenda. He was repeatedly told that the issue had been discussed to the satisfaction of the other commissioners, and that his individual questions were not suitable agenda items when he could work directly with the planning department to answer his questions about planning department procedure. At the June 16, 2021 planning commission meeting during discussions on "Agenda Items for the Next Meeting" Commissioner Van Pernis attempted to have a discussion on the topic he had been told would not be on the agenda. Corp counsel in two separate instances stepped in to stop the discussion as it was outside the scope of sunshine laws. 3.June 16,2021 Planning Commission Meeting:There are no transcripts of the portion of the meeting that deals with agenda items for the next meeting. Here are the minutes that encapsulate i Commissioner Van Pernis effort to have his personal questions about planning commission practices 3 discussed on an agenda rather than having them answered outside of the meeting. 3 AGENDA ITEMS FOR NEXT MEETING The Commission took up this item at 2:25 p.m. Commissioner Van Pernis re-presented his point of order as follows and requested Chairman Vitousek's response: j 3 "Is the Leeward Planning Commission by any of its commissioners able to inquire as to the policies, procedures, rules, and/or authorities of the County of Hawaii Planning Department and/or planning i director and/or deputy planning director as to or utilized in processing and/or producing recommendations concerning applications that are considered by the Leeward Planning Commission? If the answer is in the affirmative, what is the procedure for such inquires, and where and under what category of agendas are such questions placed?" Chairman Vitousek acknowledged that he had received those questions in writing earlier. He said that he had already had Ms.Jackson answer them, as this type of questions does not have to be agenized for the Commission to discuss at a meeting, and that Commissioner Van Pernis was welcome to ask staff, if he had questions on county procedure. Commissioner Van Pernis said that Ms.Jackson had partially addressed four other questions that he had been trying to get agenized for months, but that she had not responded i to the point of order, which is rather the chairperson's duty. Deputy Corporation Counsel Schlueter advised that a point of order is a motion made on a breach of protocol and is generally not used for I inquiry purposes. Commissioner Van Pernis said that Ms.Jackson's response to his four other questions was helpful but inadequate, and so they should be placed on the agenda for the entire 3 Commission to discuss. Director Kern commented that the Planning Department as a government body is open to any questions from the public or commissioners, which the department tries to answer to the best of its ability, and that in this case Ms.Jackson had done so in his opinion. He questioned if this was the opportunity for Commissioner Van Pernis to leverage his position as a commissioner. He further said that the Planning Department, however, could engage in discussion, if the chairman and the a Commission wished to get into the topic. Deputy Corporation Counsel Schlueter pointed out that this section of the agenda is so that potential agenda items can be requested but not so that the content of those items can be discussed.She advised that those requests be itemized and the chairman then make the decision on whether or not to place them on the next agenda, since that is to the call of the chairman. Commissioner Van Pernis requested that his four questions be placed on the agenda,and proceeded to explain his reasons and concerns; however, Deputy Corporation Counsel Schlueter again cautioned against further discussion. Chairman Vitousek said that he would review the four questions and determine whether they can be placed on a future agenda. Commissioner Van Pernis suggested that Ms.Jackson's response be included in those items. 3 After this meeting my fellow planning commissioners requested the opportunity to discuss communication 183 in open session and give a formal vote on whether to recommend the removal of commissioner Van Pernis from the planning commission. The July 15, meeting had 2 agenda items in addition to the discretionary permit applications that were up for review and approval. Item 3 was a 3 request by Commissioner Van Pernis to discuss time extensions that we had framed in a way that would be suitable topic for the agenda. The other was agenda Item 4, which was the discussion/recommendation on communication 183. In his written testimony on his own agenda item 3. commissioner Van Pernis stated: July 2, 2021 "It is my position that the Leeward Planning Commission itself is not limited to merely making recommendations on zoning/subdivision matters, and can make inquiries of Planning, investigate and make recommendations for changes and additions to presently inappropriate Planning Department procedures, which changes could help Department and Council efficiency and clarity. Specific examples of the below stated issues and problems involving many recent applications can be presented upon request." However, his written testimony dated June 30, 2021 in response to the planning commission review of communication 183 which discussed the request to remove him from the commission has a very different message: "Mayor Roth' s letter did not direct any inquiries to or ask for any "recommendation" from the Leeward Planning Commission,The letter was considered in two Council Planning Committee hearings of long ago.Thus it appears that the agenda item is without authority or precedent, and outside of the Commission' s authority or jurisdiction, and is to be dealt with only by the County Council as the entity having jurisdiction.The Commission' s agenda item concerning Commissioner Van Pernis and Mayor Roth should be dismissed, tabled, or postponed indefinitely." I believe these two divergent opinions by the same person on the same subject (planning commission authority)only days apart are a clear indication that this individual believes that there is a different set rules for him than everyone else. To him, the planning commission's authority is limitless when used to serve his personal agenda, but severely limited when seeking recourse against the wrongs that he has perpetuated. Both of his statement cannot be true. I believe that he is willing to say anything to serve his own agenda even when it conflicts with his own statements. And I believe he is willing to outright lie if he thinks it will help him arrive at his desired outcome. i Item VII of Commissioner Van Pernis June 30, 2021 letter states regarding the planning commissions review and recommendation on communication 183 states: "VII. It is a Chair person' s authority to control a meeting. At no time did a previous or present Chair person invoke Robert's Rules Of Order,to object for decorum, (Art.V,Sec 34, Art. XII, Sec 62 c. of those Rules), or rule any question or statement out of order, or use the Rules to punish or discipline my 2020 and early 2021 activity as a Commissioner" This statement is demonstrably false.Commissioner Van Pernis received 2 formal disciplinary letters, one from Commissioner Carr-Smith dated October 9 2020, and one from me dated April 12, 2021. In addition, there were countless efforts to reel him in, object to his decorum, request points of order, that are all well documented in the disciplinary letters, and in the meeting minutes and transcripts. He is trying to tell the commissioners that there is no issue with his behavior as if we have not all been witnesses to the issue over the last 2 years. Commissioner Van Pernis went through his usual talking points about he's the only one asking tough questions and he's only being removed because he pointed out a conflict of interest by director Kern and who are they going to come after next. The commission understands that this defense is only intended to distract from the real issue. His behavior is not appropriate for the planning commission. And it was a unanimous vote among everyone not named Mark Van Pernis to send a favorable recommendation to the county council on communication 183 to remove him from the commission. I After the initial request by the mayor to remove a commissioner, and initial review by the planning committee we have put together a comprehensive process where Mark Van Pernis was given every accommodation, given every opportunity to improve his behavior, and given an evaluation of his behavior by his peers as to whether or not he belongs on this commission. In all honesty it would have been better served for all of us to have carried out this process in advance of the request to remove commissioner Van Pernis. But never the less,through consultation with and direction from the planning committee, we have completed this process and we have arrived at the same conclusion. k I I am humbly asking that you make the decision not to allow the behavior of one person to adversely affect the lives of so many. That this one person who is singularly causing all of this conflict be removed to allow the rest of us to focus on the merits of the applications before the planning commission.To step in and protect the county planning department staff and volunteer commissioners from a bully who only truly serves himself. j Mahalo, Mike Vitousek i t i JI t a i I i j