HomeMy WebLinkAboutCOM 0001.001 2004-2006 tV Of y
FRED G I IOLSCI{UH, M.D. ~y Phonc: (808) 961-8264
Cnwi~iGne,nh~,. E:BX: (808) 961-8912
~'«•N'~
HAWAI `I COUNTY COUNCIL
County of Hawaii
/(aeai'i ("ounN Building
ZS dupuai Street, Suite ?09
Hilo. Hawaii 96:7,0
December 3, 2004
To: Councilmember James Arakaki
Councilmember Stacy Higa -
Councilmember Peter Hoffmann
Councilmember Donald Ikeda
Councilmember Virginia Isbell _ ,
Councilmember Bob Jacobson
Councilmember Angel Pilago
Councilmember Gary Safarik
Re: Legislative Auditor Appointment
I received, and have read the attached information sent to me from Lincoln
Ashida, Corporation Counsel, at my request, regarding non-privileged communications
with Mr. David Kimo Frankel. From my personal observation of Mr. Frankel's behavior
and these communications, I am very disturbed by his hostile and unprofessional behavior.
The Legislative Auditor position, in my opinion, requires a mutually respectful interaction
between the Legislative Auditor and staff, Council members, other County employees
and the public.
I must, therefore, with regret, raise the question with all of you as to the suitability
of this appointment .
Resp ctfully,
ti
`~~l~ti -
Fred C. Holschuh, M.D.
Att.
Comm. No.
Ref. Ta:--Pr--eseu~~•
;.~,f, L~ate_UC~_Z~Da
Nawai'i County is an Equa! Opportunity Provider and Employer
Xc ~ a u a-~I,~ .
.P='•~~c~'~,'a Phone: (808)961-8264
FRED C. HOLSCHUH, M.D.
Councilmember {-i~l.? FaX: (808) 961-8912
ti•a•N~+
2004 NOU 1 Pfd 2 13
HAWAI `I COUNTY COUNC~~,
county ofHawar'r
Hawaii ('aunty Building l~'-. _
25 Aupuni Street, Suite 209
Hilo, Nawai'i 96720
October 28, 2004
Mr. Lincoln Ashida, Esq.
Corporation Counsel
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Dear Mr. Ashida: N--~ ~ ~
It was announced in today's paper that David Kimo Frankel has been asked to be
the legislative auditor for the county council. I have had some concerns about Mr.
Frankel's behavior in various interactions with the council.
Pursuant to the Government Records Law, I respectfully request that you send me
any and all correspondence between your office and Mr. Frankel, to my home address at
P.O. Box 2004, Honokaa, Hawaii 96727.
Sincerely yours, /
Fred C. Holschuh, M.D.
J7,7~~
Lincoln S.T. Ashida
`p'~S" Corporation Counsel
Harty Kim
MBy°` Gerald Takase
.r Assistant Corporation
~'ei r?+' Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 • (808) 961-8251 Fax (808) 961 A622
November 5, 2004
Honorable Fred C. Holschuh
Councilmember, District I
c/o P.O. Box 2004
Honokaa, HI 96727
Dear Dr. Holschuh:
RE: Your Records Request of October 28, 2004
Our Entry No.: WRK 04-8750
This letter responds to your records request dated October 28, 2004,
received by our office on November 1, 2004.
After receiving your request, our staff printed out the attached summary of
correspondence received from David Kimo Frankel, inventoried in our records
management system. Please note our computerized records system went on
line in 2001, so any correspondence prior to that date is not contained in this
electronic record.
Please review the attached summary, and let us know which particular
documents you would like to see. We will produce to you the non-privileged and
non-confidential records you seek.
I also queried our attorneys on any correspondence they may recall
receiving from Mr. Frankel. Based on their independent recollection, we have
attached these non-privileged and non-confidential records.
We understand our obligation under the Uniform Information Practices Act
is a continuing one. To this end, upon discovery of any additional records that
are responsive to your request, we will notify you.
Very truly yours,
lA V "
LINCOLN S. T. ASHIDA
Corporation Counsel
Encls.
S: DeparfinentslCorp CounseVLSA Misc. Corresp.ILeder to F. Holschuh re Frankel records 11-5-04/LSAmr
Hawaii County is an Equal Opportunity Employer and Provider
a~a~~I
CoRespondence Log -Selected EnMes: update
Entry No. Oates
d/SeM~FTe)Number Case N (Fran/io) AMY
Sub)ect
Addressed To Routed To Routed Date Resp Date Postage
923 03/14/01 ~ ~ - ~
IN Fr. Paul Johnson Park 8 Niles David Kimo Frankel
To
Pacific Star-Sierra Club 8 Frankel's Memo in Opp to Pacific's Motion to Supplement the
ROA
OToole ~ ~ $0.00
1380 oa/ttrot
IN Fr. Paul Johnson Park & Niles David Iona Frankel
To
Pacific Sfar-Sierra's Objections to Proposed Findings, Contusions and Order Submitted by
LUC
OToole ~C~ 50.00
tso9 oanaro~ 0?-~~
IN Fr. Paul Jottruart park 8 Niles David IOrno Frankel
To
Patfic Star-Siena & FrankePs ObJedions to proposed Amended Findings of Fad
Conclusions of Law and Order SubmiCed By Appellant Patfic Spar
~ OToole C ~ $0.00
2058 05/24/01 ~ ? - L--J
IN Fr. Paul Johnson Park 8 Niles David Kirta Frankel
To
Pacific Star-Order Denying Pacifcs Motion to Supplement the ROA
OToole C~ $0.00
~ 4817 09/25/01, ~ ? - ~
IN Fr ~Legai Aid Society of hawaii ~~l David Frankel __I
To _ --J~--~
In the Matter of the hearing on theproposed termination of Housing assistance for mary
Goldson Motion in limine to prevent the county from introducing any informationinto th~
irecord of any alleged viloations prior to november 13, 2001; exhibit; draft order _ws- _
l
-I ~OToole - - ~ - $0.00
Page I of l1
11I3I2004
Correspondence Log -Selected Entries: update
Entry No. Oats Redd/Sent Fpe Number Casa Number Altomey
Company (FronJTo) Person (Fran/io)
Subject
Addressed To RaAed To Routed Dale Resp Date Postage
5035 10/03/01 O ? - 0
IN Fr. Paul Johnson Park & Niles David Frankel
To
Padfic Star vs. The Sierra Club et al., civil no. 00-1-0209K -Notice of taxation of costs;
exhiNt"A";cos
o~oole --~0~ $o.oo
5522 10/23/01 ~ ~ - LJ
IN Fr. Legal Ald Sodety of Hawaii David Frankel
To
In the Matter of the Hearing on the Proposed Tennina0on of Housing Assistance for Mary
l;oldson -Memo bt response to Countys opposition to motbn In IlrNne; exhibit "B"; cos
OToole $0•~
5650 10/29/01 ~ ~ -
IN Fr. l-egai Aid Sodety David Frankel
To -
RE: Mary Goldson -Have heron varbus waiting lists such as sedbn 8, Haili etc.
OToole ~ E0.o0
9199 04/05/02 ~ ? - ~
IN Fr. Legal Aid Sodety of Hawaii David Kimo Frankel
To
Wayne Leslie v. Yuen, BOA 02-03 and 02-04-Affidavit of David Kimo Frankel Regarding
Service-
Akama ~ $0.00
9265 04/08/02 ~ ? -
IN Fr: Legal Aid Society David Kimo Frankel
To ~ _ ~ -1
Wayne Leslie v. Yuen BOA 02-03 8 04-Affidavit of David Kimo Frankel Regarding Service
r_~- ~ Ishado _ _ ~ _ _ _ - __$0.00
- - - fir---- ~ ~'r-
11/3/2004 Page 2 oj/1
Correspondence Log -Selected Entries: update
Entry No. Dale ReCd/Sent Fib Number Case Number Allomey
Canpany(FronJTo) Person(From/fo)
A~
dd eased To Routed To Rarted Dale Resp Dale Postage
9803 05!01/02 ~ ~ - 0
IN Fr. Legal Ald Society rFranke~l
To I
Letter re Olivia Ayala County Housing
OToole ~ ~ SO.00
9856 05/02/02 ~ ~ - ~
IN Fr. Legal Aid Society David Kimo Frankel
To
Letter re Olivia Ayala County Housing
OToole ~ ~ ~ 50.00
10254 05/17/02 ~ O - 0 0
IN Fr. Legal Akt Socety David IOmo Frankel
To
Wayne Leslie-Leslie's Memo' In Opp to Appellee's MoOon to Dlsmiss
r~ ma & Kagami ~ ~ 50.00
11690 07/19/02 O ~ - 0 ~
IN Fr. leg! Aid Society David Frankel
To
Wayne Leslie BOA 02-03 & 04-letter requesting participation In preheadng conference by
telephone
Colin Love ~ OToole & Akama ~ r~50.00
11840 07/29/02 ~ ~ - 0 i I
IN Fr. Legal Aid Society David Kimo Frankel
To ~
Wayne Leslie-outline of relevant information re pre-hearing conference
Colin Love ~ Akama 8 OToole ~ ~ ~ ~ 50.00
11/312004 Page 3 of /1
Correspondence Log -Selected Entries: update
Fstry No. Dab ReCd/Sent Flb Number Case Number Attamey
Corn{>any (From/io) Person (From/To)
Subied
Addressed To Routed To Routed Dab Rasp Data Postage
12486 08/22/02 ~ ~ - ~0 r-~
IN Fr. Legal Aid Society of Hawaii David K.Frankel, Esq.
To
Leslie vs. Yuen, et al.; BOA 1102-03 8 02-04 (cover Itr.w/ unfiled Appellant Wayne Leslie's
Memo Re the Scope of Contested Case Hearing)
Kagami-~ Kagami~ 08/22/02 O 50.00
12576 08/23/02 ~ ? -
IN Fr. Legal Aide Society David Kimo Frankel, Esq.
To
Wayne Leslie vs. Christopher Yuen, et al., BOA Nos. 02-03 and 02-04; Appellant Wayne
Leslie's Memorandum Regarding the Scope of Conseestad Case Hearing
~ma%Kagami AkamalKagami 08/23!02 ~ $0.00
12843 09l09I02 O Q - I~-~
IN Fr. Legal Akf Sodety. David Frankel
- _
To
Kiilei Estates-Schedule Chris Yuen's testimony on a separate day. Kagami to gat C~eplic to
testify at hearing. Schedule in writing at the pre-hearirtg conference.
Akama Akama 09/09/02 ~ $0.00
12853 09/10/02 ~ ? - ~
J ~ ~
IN Fr. Legal Aid Socety of Hawaii David K. Frankel, Esq.
To
Mr. Yuen's testinony
Kagami Kagami 09/10/02 ~ $0.00
12982 09/13/02 ~ ~ -
IN Fr: ~egal Aide Society David Frankel, Esq.
- -
-
To L _ ~ - - -
Wayne Leslie v. Christopher Yuen, BOA No. 02-03 and Protect Keopuka v. Christopher
(Yuen, BOA 02-04; Appellant Wayne Leslie's Memorandum Regarding The Planning
,Department's Legal Duties; C/S _ _ _ _ _ _
Akama - --,,Akama--- _ - ~i - _ ,I $0.00
09/13/02,,
1113/2004 Page 4 of l2
Correspondence Log -Selected Enures: update
Entry No. DaOa Redd18erd Fps Number Case Number Altomey
company (FrorrJTo) Person (FraNio)
Addressed To Routed To Routed Date Rasp Date Postage
12997 09/13/02 ~ ~ - 0 0
IN Fr. Legal Ak1 Society of Hawaii David K. Frankel, Esq.
To
Leslie vs. Yuen, et al.; BOA #02-03 & 02-04 (Appellant Wayne Leslie's Memo Re the
Planning Dept's Legal Duties)
Kagami/Alcama Kagami os/1sro2 ~ SO.oo
13075 09/18/02 O ~ - O ~ 0
IN Fr. Legal Aide Socety David Frankel
To
Kiilae Estates, BOA 02-03; Appellant Wayne Leslie's Memorandum in OpposNion to
Appellee IOllae Estates Motion to Dismiss appellants' Gaims Under HRS Chapter 205A and
Conceming Alleged Native Hawaiian Riglrts; GS
AkamaflCagami maACagami 09/18/02 ~ 50.00
13117 09/19/02 O ? - ~ ~
IN Fr. Legal Aide Society David Frankel, Fsq: -
To
Wayne Leslie vs. Christopher Yuen, et al., GWI No. BOA 02-03 and 02-04; Appellant Wayne
Leslie's Memorandum In Oppositbn to Appellee Kiilae Estates Motion tb Dismiss Appellants'
Gaims Under HRS Chapter 205A and Concerning Alleged Native Hawaiian Rights; GS
Akamall(agami Akama/Kagami 09119/02 ~ 50.00
13288 09/25/02 O ~ -
IN Fr. Legal Aid Society of Hawaii David Frankel
To
Leslie vs. Yuen, et al.; BOA #02-03 & 02-04 (transmittal w/Appellant Wayne Leslie's Motion
in Limine for an Order ExGuding Evidence re the Planning Dept's Past Practices of
Approving Subdivision Applications)
Akama/Kagami Akama/Kagami 09/25/02 ~ $0.00
t i/3f2004 Page 5 of /2
Correspondence Log -Selected Entries: update
Entry No. DaEa Rec'd/Sent fAe Number lase Number ACaney
Comparry (FroMio) Person (FrortJTO)
Addressed To Routed To Routed Date Resp Date Postage
13389 10/01 rot ~ ~ - 0
IN Fr. Legal Aide Sudety David Kimo Frankel
To
Kiilae Estates; Michael Moore and David Frankle undear as to how the hearing will proceed.
Wants to take a break after Chris Yuen and Ed Cheplic's depos on 10/8 to review testimony;
Frenkel's witness Gary Gill will be available via telephone conf on 10/15 at 1:30 for cross
examinafbn. Another of his wXness will be availabe on Thursday, 10/17
Akama/Kagami Akama/Kagami ~ 10/01/02 ~ $0.00
13390 10ro1 rot ~ ~ - 0
IN Fr. Legal Aid Sudety David King Frankel, Esq
To
Wayne Leslie vs. Chris Yuen, BOA 02-03 and Prated Keopuka Ohana vs. Chds Yuen, BOA
02.04; PreBmnary Witrless and Exhibit List: GS
Akama/Kagami~ maACagami 10/01/02 ~ S0.00
13392 10!01/02 ~ ? - 0 ~ ,
IN Fr. Legal Aide Society David Kirta Frenkei, Esq.
To
Wayne Leslie vs. Chris Yuen, BOA 02-03 and Prated Keopuka Ohana vs. Chris Yuen, BOA
02.04; Appellant Wayne Leslie's Motion in (Jmine for an Order Exduding Evidence
Regarding the Planning Department's Past Practices in Approving Subdivision Applications;
GS
ma/Kagami Akama/Kagami ~ 10/01/02 ~ $0.00
13aos osr~oroz 0 ~ - 0 0
IN Fr. Legal Aid Sudety of Hawaii David Kimo Frankel, Staff Atty.
To
BOA 02-03 & 02-04• Leslie vs. Yuen, et al.
Kagami/Akama Kagami/Akama 10/01/02 ~ ~L $0.00
~ 13615 10/10/02 ~
IN Fr: Legal Aide Society David Kimo Frankel, Esq.
To j
_
'.Wayne Leslie vs. Christopher Yuen, et al., BOA 02-03 and 02-04; Appellant Wayne Leslie's
,Interrogatories to Ed Cheplic; C/S
Akama LAkama/Kagami ~ 0110/0 ~ _ ~ ~ $0.00 I
11/3/2004 Page 6 ojl2
Correspondence Log -Selected Entries: Update
Entry No. Date ReCdrSent FNe Number Case Number Attorney
CwrwaM' (FronJTo) Person (From/To)
Add~rcssed To Routed To Routed D-ate~Reslp Date Postage
14223 11!08/02 ~ ? - 0 I
IN Fr. Legal Aide Sodety David Kimo Frankel, Esq.
To
Wayne Leslie vs. Christopher Yuen, BOA 02-03 and 02-04
Surretwttal to Rebuttal Dedaratbn of Robert Techtman; Declaration of Francis Howarth; GS
Akama/lshado Kagami (Akama/Ishado) 11!08/02 ~ 50.00
14410 1 t /19/02 ~ ~ - lJ 0
IN Fr. Legal Alde Society David Kimo Frankel, Esq.
To
Wayne Leslie vs. Christopher Yuen, BOA Nos. 02-03 and 02-04; Second Surrebuttal fo
Rebuttal Dedaradon of Robert Rechtman; Declaration of Paul Rosendahl; GS
Akama ma/Ishado 11/19/02 ~ 50.00
15181 01/02/03 0
IN Fr. Legal Aide Sodety David i0rta Frankel, Esq.
To _
Appellant Wayne Leslie's Exceptions/ObJections to Appellee Kiilae Estate LLCs Proposed
Findings of Fad and Condusbns of Law and Order, GS
Appellant Wayne Leslie's Exceptbns/ObjecBons to Appellee Planning Directors Proposed
Findings of Fad and Conclusions of Law and Order, GS
Akama ~~ma/Kagami 01/02/03 ~ $0.00
15747 01/31/03 ~?-01 0
IN Fr. Legal Aid Sodety of Hawaii David Kirta Frankel, Esq.
To
Appellant Wayne Leslie's Exceptions to the proposed Findings of Fad, Conclusions of Law
8 Recommendations of the Contested Case Hearing Officer (Re: Leslie vs. Yuen, et al.;
BOA #02-03 8 02-04)
~kama/Kagami Kagami ~ 02/05/03 $0.00
16610 r 03/25!03 ~ ? - 0 ~ ~ _ _
IN Fr: ILegal Aid Society of Hawaii David Frankel
To ~
Housing-Donald and Melanie Lee; Itr re mtg with Taira. Requests help with Mr. Taira's
declaration. Should Mr. Frankel deal directly with Mr. Taira or will dToole help.
~OToole ~ O'Toole ~ ~ 03/25/03 , _ _ $0.00
11r/3rzooa Page ~ of u
Correspondence Log -Selected Entries: update
Entry No. Date Rec'd/Senl FXe Number Case Number Attorney
Comparry (FrarYio) Person (FrortVro)
Addressed To Routed To Routed hale Resp Date Postage
17415 05/20/03 LIT 03 - 263
IN Fr. Legal Aid Socety of Hawaii David Frankel
To
Leslie v BOA, Civi INo. 03-1-0050K; hr re proposing to stipulate to a briefing schedule.
Frankel plans to file opening brief on June 24. August 4 would be ddln for us to file our
answedng brims; and his reply brief by August 14. Oral argument for sometime after that.
Original Proposed Stipulation is attached for signatures. OToole to forward to Ishado,
Ishado to forward to Moore, etc.
OTOOIe 1 OToole 05/20/03 ~ $0.00
17444 05121/03 LIT 03 - 297
IN Fr. Legal Aid Society David King Frankel
To
Leslie v BOA/Civ. No. 03-1-0050K-Propose to stipulate W a briefing schedule
Ishado Ishado 05!21103 ~ 50.00
17743 06/12!03 LIT 03 - 263 ~ _
IN Fr. Legal Aid Society of Hawaii David King Frankel
To
Itr asking County td submit additioNcorrection to record. Second copy of 10/14/2002
transcript was sent to all parties, and would like coneded copy submitted to Court as he
could not find the corrected copy In the Reoord on Appeal. Plans to submk opening brief
around June 30. Asks that we donY file an answer while he's on vacation (July 14th through
August 1).
OToole -~rOTcole 06/12/03 O $0.00
19372 09/11/03
IN Fr: David Frankel
To _
Comments on positions taken. _ _
Leithead-Todd ~ Leithead-Todd _ ~ 09/11/03 $0.00 j
19374 i
0
/19 1/03 ~i
IN Fr: David Kimo Frankel _ _ _ _ David Kimo Frankel _
To :I- - --i~
RE: Bobby Jean's position on a planning issue
Leithead-Todd (c: As~ Ashida _ ~ L_. _ 09/11/03 L- _ J $0_00 J
11132004 Page 8 of !1
Correspondence Log -Selected EnMes: update
Entry No. Date ReCd/Sent File Number Case Number Attorney
Company (FrarVrc) Person (FraMoj
dressed To Routed Ta Routed Date Resp Date Postage
19463 09H 7/03 O ? - 0
IN Fr. David Kimo Frankel
To
Ltr of regret of sending previous letter. Believes he has First Amendment right and civic
obligation to communicate with government offidals. tt represents a dient on a matter, he
will clot communkate In manner he prevbusry did.
Leithead-Todd Leithead-Todd^~ 09/17/03 ~ $0.00
19648 09/29/03 LIT 03 - 297 0
IN Fr. Legal Aid Socety of Hawaii David IOmo Frankel
To
l.tr requesting copies of the 3CC dedsbn be provided to each of the members of the Board .
of Appeals; cotin Love and Chris Yuen. Let Mr. Frankel know M atlie b do so.
LeitheadTodd and OT Leithead-Todd 09/29/03 ~ $0.00
19650 09/29/03 ~ 03 - 263
IN Fr. Legal Aki Sodety - David Frankel
To
Requesting copies of Third Grcult Court's dedsbn and to distribute to all Board of Appeals
members, Colin Love and Chris Yuen
OToole OToole 09/29/03 O $0.00
21204 01/05/04 LIT 03 - 297
IN Fr. Legal Aid Sodety of Hawaii David Frankel
To
Leslie v. Board of Appeals. Letter re FO'ilae Estates submitting new subdivision apliration
(SUB 2003-0148). Will prepare further comments on application next week.
Leithead-Todd Leithead-Todd 01/05/04 ~ $0.00
21306 01/09/04 LIT 03 - 297
IN Fr. Legal Aid Society of Hawaii David Frankel _ _ J
To ~ ~
(Request that copies of January 2, 2004 Itr and this one be placed in Ping Dept's files for 'I
subdivision application SUB 2003-0148. Despite application with more info submitted to
Ping Depl, does not comply w/ info requirements of subd. Control code. Asks that staff
examine final subd map for Sub. 7459 (approved by Yuen on 10-11-01. Map shows
~~Kauleoli below high is one lot.
_ r _
Leithead-Todd ~ Leithead-Todd ~~Ot/09/04 ~~L $0.00
11 /3/2004 Page 9 of 12
Correspondence Log -Selected Entries: update
Entry No. Data Rec'd/Sant file Number Case Number Altomey
Company (FronJro) Person (From/To)
pressed To Routed To Routed Date Resp Date Postage
21616 01/28/04 LR 03 - 283
IN Fr. Legal Alde Sodoty Oavid Frankel
To
Appeal process
OToole ~ OToole 01/28!04 ~ $0.00
22275 03/01/04 LIT 03 - 297
IN Fr. Legal Aid Sudety of Hawaiti David Frankel
To
tir ratidng 21 days prior notice to filing motion per Rule 2.1 HRAP. Will file Rule 11 motion
for sanctions H COH makes appeal of an appeal of chap 19 contested case dedsbn to
Intemrediate Court of Appeals or Supreme Court
Leilhead-Todd Leithead-Todd 03/01/04 ~ $0.00
22276 03/01/04 ~ 03 - 297
IN Fr. Legal Aid Sudety of Hawaii David Frankel
To
Disappointed to find that his January 2, 2004 and January 8, 2004 letters not part of the
Planning Dept Subd Apps 2003-0148 fib. WIII send those letters to Planning Dept on AAarch
4, 2004. Would like to be notified when dedsbn made re application.
Lelthead-Todd Leithead-Todd ~ 03/01!04 O $0.00
24114 06/08/04 LIT 03 - 297
IN Fr. David Kimo Frankel
To
General Petition for appeal of Subdivision Dedsion by Planning Director.
I Leithead-Todd ~ ~ $0.00
24328 06118/04 ~ ~ - ~ C ,
IN Fr: ~ ~ David Kimo Frankel - -
To ~ . _ - - -l~ - - --1
cc Itr re discussion of BOA hrg dates. Ping dept asked that he fill Ping Dept's general
pelilion form (attached). Requests that when hrg is scheduled to inform him of what mtg will
!include.
O'Toole ~~Leilhead-Todd 06/18/041 $0.00
1 11312 0 0 4 Page 10 of 12
Correspondence Log -Selected Entries: Update
Entry No. Ogle Red'd/Senl File Number Case Number Attorney
Company (Fran/io) Person (From/To)
Sub)ea
Addressed To Routed To Routed Date Resp Date Postage
24356 06!18/04 LIT 03 - 263
IN Fr. David Kimo Frankel
To
Letter w/completion of new Board of Appeals Petition
OToole OToole ~ 06/21/04 ~ $0.00
25045 07/20/04 LIT 554
IN Fr; David Kimo Frankel
To
Requesting the Board of Appeals hearing set for August 13, 2004 be moved to the month of
September 2004
OToole OTOOIe 07/20/04 ~ $0.00
® 07/20!04 Lfr ® 0
IN Fr. David Kimo Frankel
To
Assumes BOA Intends to consolidate BOA 04-014 and 04.013. Request that August 13 hrg
be postponed until Sept 13.
OToole Leifhead-Todd 0720/04 ~ $0.00
25375 08/09/04 LIT 554
IN Fr. David Kimo Frankel
To
Informing them of BOA meeting set for Friday, August 13, 2004
Pace Investments Liml OToole ~ 08!09/04 ~ $0.00
25405 08/10/04 LIT 543
IN Fr: David Kimo Frankel
cc Itr re BOA hrg appeal OF Leslie and PKO. One issue is whether ping Director properly
designated lot Pace Investments purchased as pre-existing legal lot. Suggests intervening
hearing_ BOA has authority to allow intervention in spite of late date.
- -
~Pace Investments Limi ~Leithead-Todd it 08/10/04 I~ -~i $0.00 ,
11/3/2004 Paga 1 / oj12
Correspondence Log -Selected Entries: update
Entry No. ()a0e ReCd/Sent PNe Number Case Number Attaney
company (Frortvio) Person (FrortJTo)
Sub)act
Addressed To Routed To Routed hate Resp Date Postage
25515 08!16/04 LIT ® - 543
IN Fr. David t0mo Frankel
To
cc IV re 2 concerns. Need b Incorporate record from prior hrg. Wants topoint out that Itrs
conceming detemdnatbn of pre~xis8ng bts was not in file. Feels Rrs are relevant and
shoukl be considered in appeal. Can Issues be discussed while awat8ng appt of hrg officer
or wait?
OToole ~Leithead-Todd 08/16/04 ~ $0.00
25517 08/16/04 LIT 554
IN Fr. David Kimo Frankel, Esq.
To
The Index b Record or1 Appeal compiled by iha Planning Department is ndssing the record
from the prior appeal and second b letters cotweming detenrdnatbn of pre-existing bts
OToole ~OToole 06/16/04 ~ 50.00
25552 08/17/04 LIT 612
IN Fr. David 10na Frankel, Esq.
To '
Alan Konishi, County C Kamelamela 08/17/04 ~ 50.00
26241 09/21/04 ~ ? - 0
IN Fr. David IOmo Frankel David FOmo Frankel
To
Response to LSA's letter of 9/14 re Frankefs behavior at Court
Ashida Ashida 09/21/04 ~ $0.00
Total Entries: 58
11/312004 Page !2 oj12
4r,, l'mcoln S.T. Ashida
;t~ Corporation Counsel
Harty Kim
Mera Gerald Takase
~ Assistant Corporation
Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL.,
jai arou~i strew suxe 3zs . ww, HawaA 9672o•426z . ceosl as~.aast Feu (EO8) ast~2z
September 14, 2004 ,
David Frankel, Esq.
P.O. Box 1185
Volcano, HI 96785
Dear Mr. Frankel:
On September 10, 2004, I returned to my office at 3:30 p.m. from a Police
Commission meeting, and departed for Circuft Courtin an effort to observe part
of the hearing on the request by the plaintiffs for an injunction in the Clark v.
Arakald case.
When I arrived at Court, the hearing had just conduded, so 1 did not have
the opportunity to see any of the proceedings..
I went to the Chambers of Division 1 to discuss some rfirelated business
with Judge Nakamura's dertc. When I emerged about 20 minutes later, you
accosted me outside of Judge Glenn Hara's courtroom.
You immediately began pointing your index finger at me, and shouting at
me in an aggressive and angry voice. You were apparently upset the Deputy
Corporation Counsel assigned to this case had taken a position consistent with
Hawaii County Coundl Chairman James Arakaki's defense that-the term limit
Charter amendment may be invalid altogether, as it contained no effective date.
When I asked you to calm down and not point your finger at me, you said,
"Okay!," brought your hands down, and continued to step forward towards me
while continuing your shouting.
You were apparently fixated on berating me. One person I recognized
who was present was Jason Armstrong, a reporter from the Hawaii Tribune-
Herald. As you persisted in your conduct, I turned and walked away. I was
unsure of what your next action would be, so I walked into the District Court
office so as to avoid any further confrontation with you.
At the time, I did not know what Judge Hara had ruled, nor what was
argued in Court during the hearing on the Motion.
Hawal'1 County /s an Equal Opportunky Employer and Provider
' David Frankel, Esq.
September 13, 2004
Page 2
Suffice it to say I was appalled by your conduct. Earlier, you had
contacted me via telephone to complain the Corporation Counsel had an
affirmative obligation to defend ail laws of the County as being constitutional.
When I asked you during this telephone call what legal authority bound the
Corporation Counsel to such an unwavering obligation, you were unable to
provide me any such authority. You asked me during this telephone call that I
speak with Joseph Kamelamela concerning this matter. I subsequently
discussed this legal issue with Mr. Kamelamela.
Robert Kim, Esq., followed up with a letter expressing similar concerns.
Mr. Kim further pointed out in his letter that it was not appropriate for the
Corporation Counsel to join Mr. Arakaki's argument the Charter amendment may
be invalid, since my predecessor in office had "approved as to form and legality"
the Coundl ordinance authorizing the Charter amendment.
Immediately after receiving Mr. Kim's letter, I sought an opinion from the
Office of the Disciplinary Counsel as to whether the Corporation Counsel was in
conflict. A copy of Mr. Kim's letter was sent to the Disdplinary Counsel in order
to assist them in analyzing this issue. To date, we have not received a written
opinbn from their office.
1 followed up with a letter to Mr. Kim, asking whether he had located any
authority which placed an affirmative obligation on the Corporation Counsel to
defend the constitutionality of all County laws, irrespective of whether the
Corporation Counsel believed there was a legal defect You then left a voice
message saying Mr. Kim would be sending me a letter on Tuesday,
September 7.2004, which would provide me this authority. You also left the -
dtations of two cases on my voice mail, which stand for the general proposition
that the government should not be allowed to argue inconsistent positions. To
date, I have not received the letter you promised Mr. Kim would send me.
I can only imagine your rage was the result of your mistaken belief the
Corporation Counsel had acquiesced in your demand that we not join Mr.
Arakaki's argument that the Charter amendment may be invalid altogether. In
any event, the conflict issue is one we take very seriously. That is why we
sought the advice of the Disciplinary Counsel.
What we also take very seriously is the need for attorneys to conduct
themselves in a civil and cordial manner. What concerns me is the Court hearing
had concluded at least 20 minutes earlier. When you confronted me, you were
enraged. At first I thought you were perhaps grandstanding in front of the media.
I soon realized your rage was real, and I felt you were either unwilling or unable
to have a civil discussion concerning the merits of your concern.
David Frankel, Esq. \
September 13, 2004
Page 3
You and I do not know each other very well. In fact, I believe we have
previously met only on one occasion very briefly, when I appeared before the
County of Hawai'i's Environmental Management Commission. I was thus taken
aback by your aggressive and violent outburst.
As stated earlier, we are still awaiting word from the Disciplinary Counsel
concerning any conflict of interest.
When the Disciplinary Counsel responds, we will notify all counsel and the
Court of their opinion. Until then, please consider this a request by our office to
adhere to the rules of civility expected of all attorneys in our State.
Very truly yours,
LINCOLN S. T. ASHIDA
Corporation Counsel
S: UtlgatioNClaAc v. ArakakUCorrespondenceft.elter WFrankel &13-04/LSAmr
P.O. Box 1185 FiE%Fi`!i_.n
Volcano, HI 96785
2009 SEP 21 R(911 55
September 17, 2004
CG~:
Lincoln Ashida Cam.' - ~
101 Aupuni St. #325 til'-
Ii'ilo, HI 96720
Dear Lincoht,
Thank you for your letter of September 14, which I received today. If I had gotten it earlier, we
could have discussed it at yesterday's hearing on O'otna- or shouted at each other (that's a joke
by the way). Let me respond to your letter in three ways.
Characterizations and Civility
Generally, I agree with your chronology of eves. I disagee with your characterizations of
them, however. What you say that I "accosted" you, I would say that I "hailed" you. What yrou
characterize as "aggressive and angry,° I describe as "aealous and passionate." What you
characterize as "shoutiag,° I describe as "talking." (I have a loud voice, as does my son and my
father.) What you characterize as "bexating,° I describe as "arguing." What you characteize as
a "confroctation,° Idescribe as an "exchange." What you characterize as`cage," I desenbe as
"disgust.° What you characterize as "an aggressive and viola outburst,° I describe as an
"argumeat.° (Another person who was them was Peter Serafin of the Honolulu Star BullGia) - .
My mother never taught me that pointing - or gesturing -while talking is rude. I do not consider
it uncivil. Also, I generally approach people ("step forward towards' when I am talking to them
from a distance of over ten feet or so.
While you were appalled by my conduct, I was appalled by the rude mariner in which you simply
walked away in the middle of a conversation
Defining civility is no easy matter. I leave the toilet seat up. I burp. I don't think such behavior
is uncivil. Some disagree. The United States launches unilateral, unprovoked wars, killing
innocent civilians. The United States reduces taxes on the wealthy while cutting programs for
the poor. I believe such behavior is uncivil. Others disagree. Passive acceptance of injustice is
uncivil in my mind.
I think it is fair to characterize my siyle as "haole" I may be born and raised here, but I know
that my style is haole. But it is not uncivil. Robust debate is the hallmark of civility. If you
were offended by my conduct outside of court, I would hate to think how you would react if you
came over to my house for dinner when we were discussing literature, art and politics.
[ do think it is hilarious to attempt to imply that you felt physically threatened when I'm clearly a
wimp. My physique is Exhibit A in my defense.
~lta4~
yonr Office's Position in this Case
Your office in this case has taken an "outrageous° position. Apparently, You have not read any
of the memoranda filed in the case. Please do.
Your office "approved as to form and legality" ordinance 95-20 to initiate a charter amendment
limiting the terms of county councihnembers to four consecutive two-year terms prior to its
adoption. Then in 1998, your office concluded that the charter amendment went into effect in
1996, and never questioned its validity. In July 2004, you opined that "there is no question
c~indidates not already in office as of November S, 1996 would be forthwith limited to eight
consecutive years of service." On February 10, 2003, your client Al Konishi opined, "Although
none of these omissions [regarding the lack of an explicit effective date) would appear to
jeopardize the validity of the term limit, they do create a doubt relating to the amendment's
applicability prior to the 1998 General Election.° He furtherconcluded'"The term limit
contained in Section 3-2, Article III, Hawai i County Charter, should be construed to begin
counting temrs to which persons were eleexod beginning with the 1998 Primary and General
Election." Konishi then imrited the public to challenge the official position he was taking that
the charter amendment did act take effect uMi11998. He wrote to Michael Matsukawa: "It is
i that by taking a position at this time on the issues raised and nwiewed in the attached
5ndings, all interested parties wr71 have adequate opportunity to obtain judicial guidance." In .
your office's Answer to our complaint, you raised thirteen defenses. You did not, however,
plead that the charter amendment was not valid. Only aftex your office filed an Answer in this
case -and read ourmemoranda-did your office reverse its previously held positions and
suddenly argot that the charter amendmect is invalid. Furthermore, your office previously
"approved as to form and legality" another bill to amend the county charter that did not include
what you call an explicit effective date, Ordinance 94-50.
Now, Brian De Lima, on behalf of James Arakaki, has filed a Cross Claim against the County to
declare that the charter amendment is invalid. And the Corporation Counsel is, apparently,
failing to defend the !Aunty's own charter. So who is going to defend the County against
Arakald's Cross Claim??7
The memoranda we filed -particularly the Reply to the County of Hawaii's and Alan Konishi's
Memo in Opp. to Plaintiffs' First Motion -lay out the legal arguments as to why your office
cannot abandon the county charter. Please review them.
By the way, you, in fact, assured me in one of our telephone conversations that you were going
to let De Lima argue that the charter amendment was invalid while your office argued about its
effective date. You pointed out that the benefit of having De Lima in the case was that your
office would not have to make that argument.
The Comoralion Counsel's Office
1 was very critical of the Corporation Counsel's Office in the Yamashiro administration. I was
elated when Harry Kim became Mayor, and have been overjoyed by the changes brought to the
planning Department and Environmental Management Department I had great hope that you
would change things in the Corporation Counsel's Office. I understand that your office is
uaderstaffed and overworked. I hope that the level of legal analysis brought to bear will improve
with your new staff.
But I am too often appalled by the quality of work generated by your office. I could provide too
many examples. Far too often, the Corporation Counsel's Office has demonstrated its ignorance
of basic land use law and bent over backwards for developers at the expense of the public and the
environment And the legal analysis provided by your office in this case is simply embarrassing.
Maybe we can discuss it (or shout about it!) after this case is resolved.
I hope that you are able to look beyond whatever offense you felt And.I look forward to the day
when the Corporation Counsel's Office consistently serves the public. Isn't that what Harry
would want?
Sincerely, _
David o Frankel
P.S. Let's have a beer sometime ead argue about the law. I'Il buy.
From: Noda, Diane
Sent: Wednesday, November 03, 2004 8:25 AM
To: Ashida, Lincoln
Subject: FW; Punalu'u (TMK9-6-01)
-.~kO~riginal Messa e-
rt1cC ~ t/
d. r-,
Sent: Sunday, June 13, 2004 2:57 PM
To: 'David Kimo Frankel'
Cc: Engelhard, Patricia; Mizuno, Pamela; Kim, Harty; Kuba, Galen; Matsumura, Ronnie;
Takahashi, Ron; yakasone, Stanley; Noda, Diane
Subject: RE; Punalu'u (TMK 9-6-01)
Hi Mr. Frankel,
Allow me to introduce myself, I'm Bruce McClure, Director of the Department of Public Works and
I got a copy of your e-mail to Pat Engelhard. Our Highways Division is responsible for road
maintenance and the removal of sand when it covers the "government road," which is what it is
plied on TMK: 9-6-01. You raise an interesting point, which I would phrase as,' At what point
does a road along the ocean cease to be a road bepuse it is periodiplly cover by the wash of
ocean waves?" We will look into this with both our staff, our corporation counsel and DLNR staff.
Aloha,
Brice
Hawal'i County is an Equal Opportunity Provider and Employer
--Original Message-
From: Engelhard, Patricia
Sent: Friday, June 11, 2004 3:17 PM
To: 'David ICimo Frankel'
Cc: Mizuno, Pamela; McClure, Bruce
Subject: ItE: Punalu'u
Aloha Mr. Frankel,
Thank you for the information you provided. Although ours is not the department that clears
the road along the beach, we will check into the need for the permits and EIS.
I do not think that the visits by tourists to Punalu'u have the magnitude yet of those to
beaches on Oahu, so it is unlikely that we will consider banning tourists on weekends and
holidays.
My grandparents lived next the Kailua Beach Park since the 1940's and I visited countless
times, especially after my family moved to Kailua in the 60's, just down the road from them.
I think the reason for keeping buses out of the park has more to do with the width of Kailua
Road and the fact that condemning the land to widen the road may have severely impacted
residents along the road, including the Mahoe family as well as the reknowned Kalapawai
Market. But that is just an opinion- I don't know it to be a fact.
In the meantime, we will look into the need for the documents listed in your letter.
Sincerely,
Pat Engelhard
----0riginal Message--
From: David ICimo Frankel Imailto:davidkimofrankel at?.verizon.netl
Sent: Tuesday, June 08, 2004 9:16 AM
To: Santos, Nathalie
Subject: Punalu'u
June 7, 2004
Patricia Engelhard,
Director, Department of Parks and Recreation
101 Pauahi Street, Suite 6,
Hilo, HI 96720
Dear Ms. Engelhard,
have been disappointed that the county has. neglected Punalu'u Beach
Park for so long. As you know, the beach has been the subject of much
concern for a long time.
We camped there this weekend and had a great time. I was pleased to
see that the county "road" was closed because the waves had swept the
sand across it. But I realized that this pleasure would be short-lived. Your
department will likely bulldoze the road clear of sand shortly.
Please don't.
Doing so not only destroys a public recreation area, but also violates the
law.
This "road" is in the conservation district and is on state land. I know this
to be true because the high wash of the waves reaches across the "road."
On Saturday, June 5, 2004 shortly after 6:30 p.m., I witnessed a number
of waves washing over the county "road." This was not the first time I
have witnessed waves washing across the road. When I camped a1r
Punalu'u in March or perhaps it was last fall I saw the same thing
occur. And it should be obvious that waves are pushing sand from the
beach over the road (hence the county's desire to bulldoze the road free
of sand).
The conservation district includes all lands makai of the shoreline, HAR §
15-15-20(6), which extends to the upper washes of the reach of the
waves, HRS § 205A-1. Any land use in the conservation district requires
a permit or other approval from the Board of Land & Natural Resources.
HAR § 13-5-30(b). A "land use" inGudes "grading, removing, or
extraction of any material or natural resource on land " HAR §13-5-2. I
very much doubt that the county has any sort of approval from the BLNR
to bulldoze this 'road" -which now lies on state land.
In addition, Chapter 343 provides that an environmental assessment be
completed proposes to use state or county lands or funds, HRS § 343-
4(a). While it is true that certain classes of actions are exempt from
needing to prepare an environmental assessment, the exemption does not
apply "when an action that is normally insignificant in its impact on the
environment may be significant in a particularly sensitive environment."
HAR § 11-200-8(b). You may also note the significance criteria of HRS
chapter 343. In most instances, an action shall be determined to have a
significant effect on the environment ff it affects a beach. HAR § 11-200-
12(b)(11). And please don't forget about the green sea and hawksbill
turtles in the area.
Please let me know as soon as possible that the county will not be
bulldozing/grading/ clearing the "road" uritil it has received a conservation
district use permit from the Board of Land & Natural Resources and
completed an environmental impact statement. I'm sure that you would
like to avoid having your department thrown into court.
In the long-term, I look forward to the county receiving the road that is
mauka of the homes from the private developer (who, in the past, has
offered to give it to the county). This mauka road will be cheaper to
maintain. The county may need to condemn some land to ensure that all
the homes there can be accessed.
I also hope that after the election, the county will prohibit tour buses and
other vehicles with PUC licenses from disgorging passengers at Punalu'u
on Saturday, Sundays and holidays. The City & County of Honolulu
prohibits tour buses from Kailua Beach everyday. Sure, let the tour buses
go there when us working people can't get to the beach. But when we can
get to the beach, give us some peace and quiet. We shouldn't have to
deal with tour bus after tour bus vomiting out another set of tourists every
few minutes. If tour buses can be banned from county beach parks on
Oahu, they can be banned here on weekends and holidays.
Sincerely,
David Kimo Frankel
copy BLNR Chair Peter Young
Mayor Hany Kim
OEQC Director Genevieve Salmonson
Senator Russell Kokubun
Andy Levin
Counservation Council of Hawaii
Earthjustice
David Kimo Frankel
P.O. Box 1185
Volcano, HI 96785
(808)985-8822
6~b- 2`~u:~lP4^"/~A~t ~ ~N+vv~l 1... . +x tr.~' AWP Y+ fin.. ~~1"~!*-,+"'
From: Noda, Otane
Sent: Wednesday, November 03, 2004 8:36 AM
To: Ashida, Lincoln
Subject: FW: Punalu'u (TMK 9-6-01)
Message Flag: Follow up
Due By: Friday, October 08, 2004 6:00 PM
Flag Status: Flagged
FWD
-Original Message-
From: McClure, Bruce
Sent: Thursday, October 07, 2004 2:57 PM
To: 'David Kimo Frankel'
Cc: Noda, Diane; Nakasone, Stanley
Subject: RE: Punalu'u (rMK 9-6-01)
Hi Kimo-
We are still reviewing the situation. We will let you know once we decide what we're going to do.
Aloha,
Bruce
--Original Message--
From: David Kimo Frankel (mailto~davidkimofrankel(a~verizon.netl .
Seat: Wednesday, October 06, 2004 8:31 PM
To: McClure, Bruce -
Subject: Re: Punalu'u (1'MIC 9-6-01)
Just checking in to see if there has been any progress on this issue. When we were
at the beach this weekend, it looked like the road had been cleared off in parts, but
that could just as easily have been done by cars driving over it as by bulldozers.
BMCCLURE(ilco hawaii.hi.us wrote:
Hi Mr. Frankel,
Allow me to introduce myself, I'm Bruce McClure, Director of the
Department
of Public Works and i got a copy of your e-mail to Pat Engelhard.
Our
Highways Division is responsible for road maintenance and the
removal of
sand when it covers the "government road," which is what it is
called on
TMK: 9-6-01. You raise an interesting point, which I would
phrase as, At
what point does a road along the ocean cease to be a road because
it is
periodically cover by the wash of ocean waves?" We will look
into this with
both our staff, our corporation counsel and DLNR staff.
Aloha,
Bruce
Hawaii County is an Equal Opportunity Provider and Smployer
-----Original Message-----
From: Engelhard, Patricia
Sent: Friday, June 11, 2004 3:17 PM
To: 'David Kimo Frankel'
Cc: Mizuno, Pamela; McClure, Bruce
Subject: RE: Punalu'u
Aloha Mr. Frankel,
Thank you for the information you provided. Although ours is not
the
department that clears the road along the beach, we will check
into the need
for the permits and EIS.
I do not think that the visits by tourists to Punalu'u have the
magnitude
yet of those to beaches on Oahu, so it is unlikely that we will
consider
banning tourists on weekends and holidays.
My grandparents lived next the Kailua Beach. Park since the 1940's
and I
visited countless times, especially after my family moved m
Kailua in the
60's, just down the road from them. I think the reason for
keeping buses
out of the park has more to do with the width of Kailua Road and
the fact
that condemning the land to widen the road may have severely
impacted
residents along the road, including the Mahoe family as well as
the
reknowned Kalapawai Market. But that is just an opinion. I
don't know it
to be a fact.
In the meantime, we will look into the need for the documents
listed in your
letter.
Sincerely,
Pat Engelhard
--Original Message-----
From: David Kimo Frankel [ mailto:davidkimofrankel~verizon.net)
Sent: Tuesday, June O8, 2004 9:16 AM
To: Santos, Nathalie
Subject: Punalu'u
June 7, 2004
Patricia Engelhard,
Director, Department of Parks and Recreation
101 Pauahi Street, Suite 6,
Hilo, HI 96720 -
Dear Ms. Engelhard,
i have been disappointed that the county has neglected Punalu'u: -
Beach Park
for so long. As you know, the beach has been the subject of much
concern
for a long time.
We camped there this weekend and had a great time. I was pleased
to see
that the county "road" was closed because the waves had swept the
sand
across it. But Z realized that this pleasure would be short-
lived. Your
department will likely bulldoze the road clear of sand shortly.
Please don't. -
Doing so not only destroys a public recreation area, but also
violates the
law.
This "road" is in the conservation district and ie on state land.
I know
this to be true because the high wash of the waves reaches across
the
"road." On Saturday, June 5, 2004 shortly after 6:30 p.m., I
witnessed a
number of waves washing over the county "road." This was not the
first time
I have witnessed waves washing across the road. When I camped at
Punalu'u
in March or perhaps it was last fall I saw the same thing
occur. And
it should be obvious that waves are pushing sand from the beach
over the
road (hence the county's desire to bulldoze the road free of
sand).
The conservation district includes all lands makai of the
shoreline, HAR §
15-15-20(6), which extends to the upper washes of the reach of
the waves,
HRS § 205A-1. Any land use in the conservation district requires
a permit
or other approval from the Board of Land & Natural Resources.
HAR 5
13-5-30(b). A "land use" includes "grading, removing, or
extraction of
any material or natural resource on land." HAR 513-5-2. i very
much doubt
that the county has any sort of approval from the BLNR to
bulldoze this
"road" - which now lies on state land.
In addition, Chapter 343 provides that an environmental
assessment be
completed proposes to use state or county lands or funds, HRS 5
343-4(a).
While it is true that certain classes of actions are exempt from
needing to
prepare an environmental assessment, the exemption does not apply
"when an
action that is normally insignificant in its impact on the
environment may
be significant in a particularly sensitive environment." HAR 5
11-200-8(b).
You may also note the significance criteria of HRS chapter 343.
in moat - -
instances, an action shall be determined to have_a significant
effect on the
environment if it affects a beach. HAR 5 11-200-12(b)(11). And
please
don't forget about the green sea and hawksbill turtles in the
area.
Please let me know as soon as possible that the county will not
be
bulldozing/grading/ clearing the "road" until it has received a
conservation
district use permit from the Board of Land & Natural Resources
and completed
an environmental impact statement. I'm sure that you would like
to avoid
having your department thrown into court.
In the long-term, I look forward to the county receiving the road
that is
mauka of the homes from the private developer (who, in the past,
has offered
to give it to the county). This mauka road will be cheaper to
maintain.
The county may need to condemn some land to ensure that all the
homes there
can be accessed.
I also hope that after the election, the county. will prohibit o
tour buses and -
other vehicles with PUC licenses from disgorging passengers at
Punalu~u on
Saturday, Sundays and holidays. The City & County of Honolulu
prohibits
tour buses from Kailua Beach everyday. Sure, let the tour buses
go there
when us working people can't get to the beach. But when we can
get to the
beach, give us some peace and quiet. We shouldn't have to deal
with tour bus
after tour bus vomiting out another set of tourists every few
minutes. If
tour buses can be banned from county beach parka on Oahu, they
can be
banned here on weekends and holidays.
Sincerely,
David Kimo Frankel
copy BLNR Chair Peter Young
Mayor Harry Kim
OEQC Director Genevieve Salmonson
Senator Russell Kokubun
P:ndy Levin
Counservation Council of Hawaii
Earthjustice
David Kimo Frankel
P.O. Box 1185
Volcano, HI 96785
(808) 985-8822
~3~LT`
P.O. sox 11ss RECEIVED
Volcano, HI 9678s
September 9, 2003 ~ SEP 11 PPI 12 12
Bobby JeanLeithead-Todd CORF'Oiv,ntr ~ ~_ll'uiJSEI
Deputy Corporation Counsel ppl)NTr C,F w4wa,
County of Hawa? i gy
101 Aupuni St.
Hilo, HI 96720
Dear Bobby Jean,
We represent opposite sides on a particular case. Therefore, it is nahual that we will disagree on
particular issues. I am happy to agree to disagree.
But I am also a resident and a taxpayer. I am disturbed when on behalf of the county, you argue
positions that may not be in the long-term interest of the coumy. As a deputy corporation
counsel, it is incumbent on you to defend the county rather than let your personal political
convictions color your argumems.
Yesterday, you took a number of positions that could ua~ieimine-the county's abr7ity to govern
For example, you argued that if a developer spends a lot of money attempting to-get an
entitlement, then they earn vested rights (prior to the approval). I urge you to take some time to
read the relevant Hawai i case law on this subject You also argued that the Planning Director
was bound by prior interpretations of the law and could not change them (even if he believed
prior interpretations contravened the law). Your position is contrary to that of your client.
In your role as a County Councilmember, you frequently took the side of developers and
deferred to their interpretation of the law. As a deputy corporation counsel, it is imperative that
you take some time to research land use law; to understand that David Callies' interpretation of
the law has been frequently rejected by the courts; to understand takings law from a local
government perspective rather than a developer's perspective; and to defend the county from the
county's perspective -not from the perspective of developers.
Sincerely,
C•
C/
David Krmo rankel
copy Lincoln Ashida
Chris Yuen
Mayor Kim
I g37z
t2u,~ -
RECFI\iED
P.O. Box 1185
volcano, HI 96785 Zp03 SEP_ 17 PIS 12 35
September 1S, 2003
(,'pRF'Olv,~iulJ ;:;)Un~EL
Bobby Jean I,eithead-Todd COON r ~ r'it Fin~v;~e
Deputy Corporation Counsel -
County of Hawaii
101 Aupuni St.
Hilo, HI 96720
Dear Bobby Jean,
Upon lengthy reflection, I regret sending my previous letter to you I believe that I have a First
Amendment right to communicate with government officials as well as a civic obligation to do
so. But it is probably better for the adversarial process that I do not do so in the manner that I
did. As long as there is an appearance that I am representing a client on a matter, I will not
communicate in the manner that I did.
Sincerely,
Davt
4~(P3
'r.plt dead= obby~sa
~ ~
r~.. i~ .
From: David Frankel (DaFrank@LASHAW.ORG]
Sent: Friday, October 03, 200312:18 PM
To: 'bjtodd@co.hawaii.hi.us'
Subject: RE: Leslie case
1 apologize for my general obnoxiousness.
I hope you can at least understand my general fnistration with the
advice that the Corp. Counsel has been giving its clients for the past decade.
Every single land use decision that has been appealed (of which I'm aware) has
been won by the environmental community:
PASH (standing)
Citizens for the Protection of the North Kohala Coastline (lack of
EA)
Curtis (special permit required for cell tower)
Red Road (inadequate EA)
Yuen (cell tower views)
Hokulia (205)
Ki'ilae
I'm probably forgetting a couple.
It is frustrating to me that we have to keep battling the county, when it should be
on our side. Md we see little evidence of change:aftereach,deasion.
--Original Message- -
;from: CO.H;:(~orp:~Cou)el~
Sent: Friday, October 03, 2003 11:41 AM
To: 'David Frankel'
Subject: RE: Leslie case
I replied to your letter in the spirit of being cordial. But frankly, how we
communicate with our clients is our kuleana and not yours. Once its on an
agenda, then it becomes open to public scrutiny. For your reference, you might
want to keep an eye on future BOA meetings since the counsel representing the
BOA usually "debriefs" the BOA at subsequent meetings and I expect that Ki'ilae
will be on the agenda.
-----Original Message-----
From: David Frankel [mailto•DaFrankna LASHAW.ORGI
Sent: Friday, October 03, 2003 11:42 AM
To: 'bjtodd@co.hawaii.hi.us'
Subject: RE Leslie case
So, what needs to happen to make sure that the members of the Boarcl of
Appeals and Colin Love, who were reversed, get an opportunity to read the
court's decision?
-Original Message-
From: COH Corp. Counsel (mailYo.-tijfodiJla~ao~ti' waiitFfiprts9
Sent: Tuesday, September 30, 2003 9:20 AM
To: 'David Frankel' .
Subject: RE: Leslie case
Separate issue. Will you be at the hearing this afternoon regarding CPRs? I am
somewhat unhappy about the attempt to get around legislation at the state and
county level that I busted my butt for. CPRs are a tremendous problem and have
really impacted infrastructure, particularly in North and South Kona. Chris
mentioned you might be doing some work in this area. May be I'll see you at the
hrg.
--Original Message-
Sent Tuesday, September 30, 2003 9:07 AM
To: 'bjtodd@co.hawaii.hi.us'
Subject: RE: Leslie case
That's great. Can we get copies to the Board of Appeals members as well as Mr.
Love?
-Original Message-
F,fpm: COH Corp., Courisel;,jmaiito;b~itbf'l~ti~'~d`aG~~T ~wA,,;~,~'„~
Sent: Monday, September 29, 2003 4:26 PM
To: dafrank anlashaw oro
Subject: Leslie case
Mr. Yuen already has a copy.
From: David Frankel [DaFrank(a~LASHAW.ORG]
Sent: Wednesday, October 29, 2003 426 PM
To: Leithead-Todd, Bobby Jean
Subject: RE: Leslie case
Would you please send me a copy of the Civil Appeal Docketing Statement? I
don't believe I have received a copy yet.
David Kimo Frankel
Staff Attorney
Legal Aid Society of Hawaf i
305 Wailuku Dr. Hilo, HI 96720
(808) 961-2851 x 102
e~a~?.~aa,~8bphy,~]~.~ ter.
From: Dawd Frankel [DaFrank@LASHAW.ORG]
Sent: Thursday, January 29, 2004 9:53 AM
To: Leithead-Todd, Bobby Jean
Subject: RE: Leslie appeal
I did not get a copy of any paperwork re: the extension and new deadlines. Can
you ask your secretary to send me that info.? thanks.
and please keep me up-to-date regarding 1) any decision to drop the appeal; and
2) the status of the new application. I have left a message for Ed Cheplic to let
me know what is going on with the new subdivision application.
Finally, I sent Pat O'Toole a letter regarding the Board of Appeals litigation
posture and concerns related to Chun v. Board of Trustees, 87 Hawaii 152.
David Kimo Frankel
Staff Attorney
Legal Aid Society of Hawaii
305 Wailuku Or. Hilo, H196720
(808) 961-2851 x 102
-Original Message-
_F„rom; . _ bJtoddCa~ot ~ i~us~mafltY~`f~`t3ri'tlii~'chY~ilt#t"ii'rld's~1p
Sent: Wednesday, January 21, 2004 4:15 PM °
To: dafrank@lashaw ora
Subject: Leslie appeal
Sorry I haven't acknowledged your letters sooner. Drowning in work. Ivan
Torigoe got assigned Hokulia so I inherited all of the Environmental Management
stuff (as well as bankruptcies and foreclosures in the past couple of weeks) and
we are in the middle of responding to the comments on the DEIS for the sort
station.
I'll be in touch with you shortly regarding your proposal for the commission. I like
the idea of giving them the appeals.
I asked fora 30 day extension on Leslie so I can sort out where we are.
The deadline for my opening brief is now March 3, 2004.
bt;l f
Legal Aid Society Telephone: (808) 961-2851 x102 • Fax: ~ 969-3983 • e-mail: dafrank@lashaw.org
Mailing Address: 305 Wailidcu Drive, Hilo, Hawaii 96720
~ECr-r ~r:1
David J. Reber, Esq.
2004 14flfl 1 P(412 23 "°`"`°4 Boad of D1"`°rs
M. Victor Gcininiani, Esq.
C:zxutive Director
- of Hawaii - CU•: ~
cc~ui~. , ~
February 26, 2004 - -
Bobby Jean Leithead-Todd
Deputy Corporation Counsel
County of Hawaii
101 Aupuni St.
Hilo, HI 96720
Deaz Bobby Jean,
RE: Leslie v. Board of Appeals of the County of Hawaii
As you know, I have a problem with tone. So, let me start off by saying that this letter is not
being sent to be mean, or to intimidate. I am writing this letter to protect my client's interests. I
am hopeful that by writing this letter, we oan avoid fighting over the appropriateness of certain
statements.
Rule 2.1 of the Hawai i Rules of Appellate Procedure (HIZ.AP) provides that the Hawaii Rules of
Civil Procedure (HRCP) aze adopted as apazt of the HRAP whenever applicable. I assume that
includes Rule 11, HRCP. This rule provides that I must give you 21 days notice prior to the
filing of such motion in order to give you an opportunity to correct the challenged contention.
This letter provides you with notice.
Both in oral argument before Judge Ibarra and in your Civil Appeal Docketing Statement, you
have stated that the failure to require all the information set forth in the subdivision code has
been the practice of the planning departments of all four counties.
I am not asking ou to correct the statements you made in oral argument before Judge Ibarra.
Nor am I asking~jpu to correct the statement in the CADS since I do not view the CAD5 as being
material to the d cisionmaking process. But I am concerned that you may wish to repeat these
claims in your Opening or Reply Briefs.
Plrisc realize that this is an appeal of a chapter 91 appeal. This means that
;i) the 13~~aiJ uf:Appcals' decision Baas limited to the f~icts ui the rccuid itself, IIIZS 91-9;
h) th~ Circuit Court's decision was limited to the evidence in the record Crom the agency
AUNITED WAY AGENCY
aa~7s
February 26, 2004
Page 2
hearing, HRS 91-14(d), HRCP Rule 72; and
c) the appellate court's review is confined to the record on appeal, which cannot at this
point be supplemented, HRAP Rule 10.
The claim that all four counties process incomplete subdivision applications is not supported by
anything in the record. It is not a legal claim; it is a factual claim. It is unsupported -and you
may not attempt to support such a claim with an affidavit given the nature of the proceeding (an
appeal of an appeal of a chapter 91 contested case decision). If you make this azgument to
Intermediate Court of Appeals or the Supreme Court, I will file a Rule 11 motion for sanctions.
I apologize for being so insistent.
Sincerely,
r ~~.,~-z
David Kimo Frankel
StaffAttomey
A UNRED WAY AGENCY
From: Leithead Todd, Bobby Jean
Sent: Tuesday, March 02, 200410:10 AM
To: Yuen, Chris
Subject: FW: your letter
FYI. I received a letter from Mr. Frankel in my in tray yesterday morning. He threatened to seek
Rule 11 sanctions against me 'rf I made any reference to our practice on prelim plats being
statewide. He alleged that I had misrepresented the record in court last September and in my
CAD sheets. 1 wrote him a short email response. The following is his response to me.
-Original Message-
From: David Frankel [mailto:DaFrankCrilLASHAW.ORG1
Sent: Monday, March Ot, 2004 4:24 PM
To: Leithead-Todd, Bobby Jean
Subject: RE: your letter
ouch) touche! although of course I don't read the testimony as you do; nor do I think that their
testimony establishes the counties' practice to ignore the word "shall
David Kimo Frankel
Staff Attorney
Legal Aid Society of Hawaii
305 Wailuku Dr. Hilo, HI 96720
(808) 961-2851 x 102
--0riginal Message-
~ko,m: told co.hawaitihiEus ihailto" 'f'at]B~Ys'3'iff~IVS~i_i r -3ns:~'-
Sent: Monday, March 01, 2004 2:21 PM
To: dafrank(a~lashaw orc
Subject: your letter
Since 1 do not consider the new subdivision application to be a matter in litigation at this point,
you can contact the department directly.
Whiie I didn't reference the other counties, after your letter I am tempted to do so. Please refer to
the testimony of Martin Quill where he says that he has been involved in development for 20
years in many different states and 8 years in Hawaii and has never been involved with prelim
plans that required detailed construction plans. Similarly refer to the testimony of George
Yoshimura where he refers to his experience in all four counties and that based upon his
experience he helps clients do prelim. In Mr. Yoshimura's case his testimony read as a whole
indicates that his practice does not entail doing all the work up at the prelim stage and he
practices in all four counties. You may read the testimony differently, but I certainly see enough
to indicate that this is the practice throughout the state.
From: David Frankel [DaFrank@LASHAW.ORG]
Sent: Thursday, March 04, 20041:51 PM
To: Leithead-Todd, Bobby Jean
Subject: RE: Your 1/?J04 and 1/081etters
Ok, I also faxed copies on Tuesday and spoke with Darcen today, who said that
they are now in the file. I look forvvard to reading and responding tc your~brief.
David Kimo Frankel
Staff Attorney '
Legal Aid Society of Hawaii
305 Wailuku Dr. Hilo, HI 96720
(808) 961-2851 x 102
--Original Message-
~ y
t._
• l ~
Sent: Thursday, March 04, 2U04 1:32 PM
To: dafrank lashaw.ora
Subject: Your 1/2/04 acid 1/08 letters
After reviewing our files, your letters were faxed to the department. The first
letter went out on January 6, 2004. The second letter was faxed on January 12,
2004. I think the problem is that I sent them over as copies for the Director and
did not instruct the department to put them in the file. I will correct that and make
sure that a copy is put in the subdivision file.
e dsT dd B ~..-,~c.~,;~.o~ea~i~,iatic~~, .
~1tbl,,.a.._ ..R. , ~,..,obbY:J. e
From: David Frankel [DaFrank@LASHAW.ORG]
Sent: Monday, March O8, 2004 9:27 AM
To: Leithead-Todd, Bobby Jean
Subject: the appeal
now that's weird. I thought you had already got the record docketed.
hey, how did you go about figuring out the new page numbering system in
referring to the record?
David Kimo Frankel
Staff Attorney
Legal Aid Society of Hawaii
305 Wailuku Dr. Hilo, HI 96720
(808) 961-2851 x 102
Lelthgad-Toad...Bo , b ,;Jea 5>~'" ;
~t~, >.~a: .
X ....s,,:
From: David Frankel [DaFrank@LASHAW.ORG]
Sent: Friday, April 30, 2004 3:47 PM
To: Leithead-Todd, Bobby Jean
Subject: Ki ilae
Yesterday I mailed two copies of the Answering Brief for you and Pat since you
filed one brief together. If for some reason you or Pat want more copies, please
let me know. Thanks.
David Kimo Frankel
Staff Attorney
Legal Aid Society of Hawaii
305 Wailuku Dr. Hilo, HI 96720
(808) 961-2851 x 102