HomeMy WebLinkAbout02-28-20 Regular Session Minutes1
HAWAI‘I COUNTY BOARD OF ETHICS
MINUTES – REGULAR SESSION Friday, February 28, 2020 10:00 a.m. to 3:01 p.m. Hawai‘i County Building 25 Aupuni Street Puna Conference Room and
County Council Chambers Hilo, Hawai‘i 96720 Members and Staff Present: Rick Robinson, Chair
David Wiseman, Vice Chair Nan Sumner-Mack, Member Lawrence L. Heintz, Member J Yoshimoto, Deputy Corporation Counsel
Maria Pagala, Secretary
1. CALL TO ORDER (10:00 a.m.) Mr. Robinson: This is for the February 28th meeting of the Board of Ethics for
the room that the County Council uses that we usually use. We had not been able to use it. It just became available yesterday. So if I can have a motion to adjourn and then reconvene.
Ms. Sumner-Mack: I so move.
Mr. Robinson: Is there a second? Mr. Heintz:
Mr. Robinson: Moved and seconded. Okay all those in favor say aye. Mr. Yoshimoto: moving the meeting across the hall, approximately 20 feet. Notice
will be posted on this door, staff will be present for half an hour to
notify the public that anyone that comes here will be directed across the hall. So that safeguards are in place to make sure the public is aware.
Mr. Robinson: be notices posted here so that anyone who will be available... I think
confused. So all those in favor say aye.
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Mr. Wiseman And this is called beyond transparency.
10:08 a.m. The Board moved the meeting from the Puna Conference Room into
Council Chambers. Mr. Robinson: Reconvene the meeting of the Board of Ethics. I want to thank
fortunate that this opened up at the last moment. The next item on
here. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:08 a.m.)
Mr. Robinson: The next item on our agenda is statements from the public on agenda items. I have quite a few here and Maria has a phone with
minutes and we ask you to acknowledge and try to cooperate as far
as when her phone rings on the limitation of the time. Also I want be clear that the item on our agenda is not about Mauna Kea and …the fair application of the rule of law for all citizens of the State of
Telescope or anything else.
I understand he has another appointment so I have a Hanalei
Fergerstrom. And Hanalei, if you could and all other people
And if you could, mash that button so that the red light pops on like that on microphone so that we can have it recorded…our
minutes. Thank you. Alright.
Mr. Fergerstrom: am the spokesperson for Na Kupuna Moku O Keawe which is the kupuna organizations that has organizations at all six districts of
discussion regarding the drafting of a resolution to conduct an investigatory hearing as to why the rule of law is not being enforced on the Mauna Kea Access Road and review of related emails received from members of the public regarding Mauna Kea.
A considerations for this discussion, I provided some definitions of
principal of general application sanctioned by the recognition of
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authorities. Authority is of course is a permission, a right to
exercise power and to implement and enforce law, control over or jurisdiction. Jurisdiction. It is the authority by which courts and judicial officers must take cognizance of. It is the rule of law that before any manner of enforcement can be implemented, that
jurisdiction must be established. The Mauna Kea Access Road is
nor the State of
sits on lands that set aside by the Hawaiian Homes Commission Act of 1921. Answer to the question why is the rule of law not
the County assert a jurisdiction on these lands that are in an inventory of Hawaiian Homes Commission Act of 1921. A question of ethics, the real question of ethics is how ethical… How is it ethical if the
County of uses County tax dollars to enforce laws on
lands that the State or the County has no jurisdiction on? Thank you very much. Mr. Robinson: Thank you, Mr. Fergerstrom.
Mr. Fergerstrom: Mr. Robinson: Yes please. Thank you. You know before we start the next person for testimony. I forgot to introduce my fellow Board Members.
So if I could start on my left.
Mr. Heintz: Larry Heintz. Mr. Wiseman David Wiseman.
Ms. Sumner-Mack: Nan Sumner-Mack. Mr. Robinson: And myself Rick Robinson as the Chair. The next person is Piikea Stafford? Piikea Stafford? Did somebody sign you up Piikea? No
need? Okay. The next is Jody Payao. Okay. No need. The next
person is Noe Kaawaloa. No need. Okay. Thank you. The next person is Julien Lozi. Good morning. Mr. Lozi: at the Subaru
Telescope on the m
ere on a Visa but I still pay my taxes and I have to follow some rules. Being here I have to follow the State laws and U.S. Laws and I hope it applies to
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een on the mountain more than 500 times. I follow the
law when I go on the mountain. I was so respect the mountain very much…so very sacred place for everyone. I just wish that the State would help in this matter so we are not regarded as bad people whe
against the science but when we hear kids that want to go in
astronomy and they are not gonna do that anymore because their
me. Anyway, this is not about the law but… Yeah…the situation has been really
count anymore. And I wish the law was followed so that the
through a lot of steps to get approval from the public and from the State could actually build here and not anywhere else where it
testimony.
Mr. Robinson: Thank you. Mr. Wiseman: Mr. Chair. Sir.
Mr. Robinson: Just a second. Mr. Lozi. Mr. Lozi: Yes.
Mr. Wiseman: What is your position up there?
Mr. Lozi actually building an instrument for the telescope at Subaru. And so I am fortunate to actually look at the stars but also do a lot of
engineering things on the telescope.
Mr. Wiseman: One question in your expertise. Last night was what they called kissing the moon, Venus, the brightest time of the year close. Does it happen again?
Mr. Lozi
a…around the sun and just comes back the same place once in a while so it gets bright and dimmer and brighter.
Ms. Sumner-Mack: I have a quick question. Subaru is operating mostly by…. Mr. Lozi: By Japan.
Ms. Sumner-Mack: Japan.
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Mr. Lozi: So Subaru is only operated by Japan right now. And yeah, most of a lot of American, Hawaiians working at the telescope and also people like
really…
Ms. Sumner-Mack: Merci beaucoup. Mr. Lozi: A lot of international…
Mr. Wiseman: Do you drive a Subaru? Mr. Lozi:
Mr. Wiseman: Do you drive a Subaru?
Mr. Lozi: Mr. Robinson: Okay, well mahalo and merci. Carolyn Pellett.
Ms. Pellett: Hawai i Island for over 20 years. And although I want to speak to number 7 later, right now I am speaking to unfinished business part b. Continued hearing
regarding request for an informal advisory opinion from a former
County officer or employee to determine blah, blah, blah. Mr. Robinson: Right.
Ms. Pellett:
Mr. Robinson:
Ms. Pellett: , but what is it in regards to? Is that
someone who has gone against the State and the Board of Ethics and revealed some information? Or what is it about? Mr. Yoshimoto: Just for information purposes. The court allows for closed
hearings when privacy
closed hearing. Ms. Pellett: No. I understand that but I think that the public should be entitled to know exactly what the hearing is about. You know. Who
ken injustice.
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eview of a petition alleging that that a County officer…who is that? And the
County Board of Ethics is in violation of sections 2-83
but I have been to my dictionary and I am here in general to discuss ethics, justice…things that you people are representing. So, ethical is moral, noble, principle, righteous, rightminded,
virtuous upstanding. Code of Ethics is called the science of ethics.
been called the ideal of human nature. A group of principles or moral values. complex of ideas, beliefs, or standards that characterizes or pervades a group community or people.
Mr. Robinson: Is that…? Ms. Pellett: The people I am concerned about are the people that even though this is not a TMT hearing, I am concerned about the native
Hawaiians. And they have a lot of supporters that are not native
been justice and equality and anti-panel with no representation from the other side of any of these
defense probably cause you are more prosecuting in sections under
people right?
Mr. Robinson:
Ms. Sumner-Mack: Could I say just one thing? I believe that these…the confidentiality protect the employees or managers involved. They had the right to
issue Ms. Pellett: a page of…
Ms. Sumner-Mack:
matters of pay and so on that not…
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Ms. Pellett: Are they matters of ethics in terms of the access road or in terms
of… Ms. Sumner-Mack: issues as far as I know.
Mr. Robinson: Correct. Ms. Pellett:
determine that issue that is not…
Ms. Sumner-Mack: Issue 7 pertains to the access road, yes. Mr. Robinson: Actually, item 7…
Ms. Pellett: Can I discuss that later? Mr. Robinson: about the application of the rule of law.
Ms. Pellett: s justice, ethical or unbiased. Mr. Robinson: Okay.
Mr. Wiseman: Mr. Chair. Mr. Robinson: Sure.
Mr. Wiseman: the items of 5. a.,
b., and c. These are of public record. Those are petitions. We
welcome to go and do your own research and find the petitions. These are not confidential. These are not secret. These are public
hearings and those petitions represent that. Furthermore, we do not
prosecute. We are not all pro bono, public servants here. Ms. Pellett:
about c. then.
Mr. Robinson: Okay. Ms. Pellett: Which I assume is Judge Roth, who is running for a Mayor now.
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Mr. Robinson: Your time is up.
Ms. Pellett:
Mr. Robinson: Okay.
Mr. Wiseman: If I may Mr. Chairman. Mr. Robinson: Yes.
Mr. Wiseman: different sessions. And the public notices were out there. If you had something to say about Mr. Roth, that was the time.
Ms. Pellett: Why is it on the agenda?
Mr. Wiseman: evidence, the input is all finished.
Ms. Sumner-Mack: And open to the public.
Mr. Robinson: Yeah. Ms. Sumner-Mack: On the record.
Ms. Pellett: Mr. Robinson: Thank you for your input. We appreciate it very much. Okay.
Mr. Yoshimoto: Now Mr. Chairman, so just to clarify for the record, members of
the public can testify in each agenda item. And normally the protocol is three minutes per item. So, if as you go along if you
things.
Mr. Robinson: Now we know. Mr. Yoshimoto: Thank you.
Mr. Robinson: Okay, thank you. Jarrett Silva-Hanohano. Okay. Maxine. Is it
Kahaulelio? Ms. Kahaulelio:
Mr. Robinson: Okay.
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Ms. Kahaulelio: Since you guys introduced yourselves to us. May I approach you and introduce myself? Mr. Robinson: Absolutely.
Ms. Kahaulelio: because I want you guys to know why I shaked your hand. Mr. Robinson: Okay.
Ms. Sumner-Mack: I Ms. Kahaulelio: Oh come on.
Mr. Robinson:
Ms. Kahaulelio: Hey, shake my hand. Okay. Now remember whose hand you guys wen shake.
Mr. Robinson: Okay.
Ms. Kahaulelio: My last name is Kahaulelio. The man who fell off the horse.
Mr. Robinson: Kahau.
Ms. Kahaulelio: Mr. Robinson: Lelio.
Ms. Kahaulelio: I get three minute? Mr. Robinson:
Ms. Kahaulelio:
Mr. Robinson: Alright. Ms. Kahaulelio: Here we go. Taking our rights. Why I shaked your hand is
because on July 17th, I was one of the kupunas that got arrested on
the access road of the Department of Hawaiian Home Lands. So now you know and you felt my hand as being an arrestee. So your rule of law, does not apply to me nor any Hawaiian on our homestead land. So whatever resolutions that you folks did not make, that you assume to make…feel my hand yeah. 38 of us got
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arrested for desecration of our Mauna A Wam.
so called rule or resolution, it does not apply to us. Like Hank to Hawaiian Homes. I am on Hawaiian Homes and that road belongs
desecration of our water that contains in Mauna A Wakea. That
here for. So if you guys come up with some kind of resolution or
whatever you may call it. Remember who shaked your hand. One of the kupunas who got arrested on July 17th at 8:35 in the
criminals which is unconstitutional. We always only had a
remember whose hand you shaked. Mahalo, anui loa kakou. My name again is Maxine Kahaulelio. Mahalo nui loa. Mr. Robinson: Thank you. Jim Albertini.
Mr. Albertini: of the group Malu Aina. For the record, I was one of the 38 elders arrested on July 17th on Mauna Kea Access Road. On charges of obstruction. I also was one of many arrested on the Mauna in 2015 on charges of
obstruction. My case and many others were dismissed in 2016 for
that 2015 arrest. I have filed a pro se motion for dismissal based on the defense of necessity. Which is to say that I obstructed the roadway of TMT construction equipment heading up the Mauna that was going to cause a greater harm than obstructing the
roadway. The construction equipment would be desecrating
most sacred temple. Let me provide another analogy of the defense of necessity on the rule of law that is perhaps easier to understand. A house is on fire and a child is screaming for help within the burning building. A person breaks in the front door of
the house and saves the life of the child but is arrested under the
rule of law for breaking and entering and trespassing. Case dismissed for the defense of necessity. Breaking a door to prevent a greater harm, the death of a child. Let me say a few things more about the rule of law. In 2016, following our arrest, the
Supreme Court ruled that the permit issued for TMT construction
was granted improperly. It was issued before the contested hearing on the permit for construction was held. The court ruled that this was improper. Illegal. It was putting the cart before the horse. If we had not acted to obstruct that roadway, the greater permanent
harm of continued desecration of the mountain would have been
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done. History teaches us the horrible crimes that have been
committed under…committed legally under the rule of law. To name a few. In Germany, the holocaust was legal. Hiding Jews was criminalized. In the U.S., slavery was legal. Freeing slaves was criminalized. In the U.S., segregation was legal. Protesting
racism was criminalized. In , let me ask you this question.
Was the 1893, U.S. overthrow of the Kingdom of legal? By what rule of law. The arrest of July 17th have not yet come to trial. In , it remains to be seen how the court will rule.
acting to protect the sacred be criminalized. Meanwhile, there was
Hawaiian Home Lands for the building of Mauna Kea Access
contested case hearing on TMT wastewater.
Mr. Robinson: Is that time. Ms. Pagala: Yes. Mr. Robinson: Yeah, your times up.
Mr. Albertini: My ques Mr. Robinson: Please.
Mr. Albertini: Where has the Hawai i County Board of Ethics been on these
Hawaiian people to protect Mauna Kea. Mahalo. Mr. Robinson: Thank you.
Mr. Wiseman: Mr. Chairman. So just one question. Is a date set on your motion hearing? Mr. Albertini: Which are you referring to?
Mr. Wiseman: You said you filed a pro se motion. Mr. Albertini: Well that was concerning the 2015 arrest…
Mr. Wiseman: Oh I see. Mr. Albertini: Which dismissed the case. Based on the defense of necessity. Mr. Wiseman: Not for this case?
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Mr. Albertini: grinder. My trial is set for April 24th on the July 17th arrest. Mr. Robinson: . I hope I have this right. I have a
corrected. Good morning. that were arrested on July 17 th. It seems like you have a few of us here today. Commenting on Item 7 on the agenda. Ethics are defined but a moral principles
in your review of Governor I actions relating to Mauna Kea kurge you to search your conscience and render and honest and authentic response. First of all when repeating the narrative
following the rule of law, I would like to understand what specific . When Governor Ige presented his budget proposals in December, he declined to say how much money he had set aside to defend TMT but acknowledged he tucked away money in the budget of various
departments. And those amounts were huge. So is it ethical for the Governor to hide 80 million tax payer dollars in funding for TMT, a private corporation in the State operating budget. Is it ethical for the legislature to play sleight of hand games with the public by being complicit in hiding and the then rejecting the $80
million requested for TMT? And then appropriating $15 million
ethical for Governor Ige to use his executive privilege to be the spokesperson for TMT exclusively? And his taxpayer funded trips to Japan? Is it ethical for the Governor to use his taxpayer funded
social media accounts to promote TMT exclusively? Is it ethical for Governor Ige to deceive foreign dignitaries by leading them to on and private discussion with kethical for the Governor and his administration to be so
disingenuous and so duplicitous? They legislated HCR 37, the reconciliation commission on February 10th. Lied about the disposition of the access road on February 14th. Traveled to Japan on February 15th to promote the development of TMT and to lie to
the Japanese government about reconciliation with k
such things are included
80 million in TMT…for TMT and the State budget. Is it ethical for the Governor to take sides? Is it ethical for the Governor to
employ the violence of systemic racism by launching a sustained
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black propaganda campaign against kanaka maoli funded with
taxpayer dollars that were strategically meant to demean, dismiss, criminalize and demonize us…who are also his citizens? Destroying our credibility as practitioners, by delegitimizing our cultural practices on the mauna. The PR spin is directly
responsible for desensitizing law enforcement and the public to
justify State sponsored destruction of not only our way of life but is also gone as far as to promote State sponsored violence against us personally and collectively. And in closing, I again, urge the commission to search your conscience and render an honest and
authentic response to these things. Thank you.
Mr. Wiseman: Mr. Chair. Mr. Robinson: Thank you. Yes, just a moment.
Mr. Wiseman: Ethics Commission and they govern all State employees such as
nominee. Yeah, we just deal with County employees.
law. Y ying the
Ms. Sumner-Mack: The resolution is still in draft form. Mr. Heintz: Governor.
Ms. Sumner-Mack:
Mr. Heintz: We have no jurisdiction… Well if you have no jurisdiction, then why would you…
Ms. Sumner-Mack: Our request is to investigate. Investigate.
Ms. Sumner-Mack: Our suggestion is to try to clarify and investigate and get the facts
hearing…initial hearing that could be part of that process. Okay, we are not here to advocate any side at all.
Mr. Wiseman: And no decision at this time.
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Well an
would need to investigate all of it and not only one aspect of it. And t
Mr. Robinson: Okay. Ms. Sumner-Mack: Thank you.
Mr. Robinson: We understand. Noe Wong-Wilson. Oh, here we go. Good
morning. Ms. Wong-Wilson: -
again to address number 7 on the agenda item. I want to just make
a couple statements. One is I find it very challenging that this phishing expedition is still going on when we have no draft to
putting an agenda item on your agenda that calls for a resolution or
a possible resolution regarding perhaps ethics violations, what you
call the rule of law and you expect citizens to come in and just sort of shoot at a wall. Provide you with what? I have absolutely no
Mr. Yoshimoto: Mr. Chairman, if I can help.
Mr. Robinson: Yeah. Ms. Wong-Wilson: You gonna explain to me?
Mr. Yoshimoto: Yeah. To clarify. My…. No Ms. Wong-Wilson: Is it part of my time?
Mr. Yoshimoto: No. Stop her time.
Mr. Robinson: Ms. Wong-Wilson: All right.
Mr. Yoshimoto: So to clarify discussion phase as far as the drafting of a resolution. So if or when the Board decides to pass a resolution, that draft will be available for the public for comment at a future hearing. So today,
l in the discussion phase and the Board welcomes input
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hearing from the public, as far as what it wants to put in the
yet -drafted. So there will be another opportunity if the Board decides
to move forward.
Ms. Wong-Wilson: Mr. Heintz: Mr. Chairman. May I add one more thing?
Mr. Robinson: Yeah. Mr. Heintz: At the last meeting, I specifically asked Mr. Robinson to read the first draft and it was read to the public at the last meeting. And we
have been working on trying to correct the draft. So the draft that
Ms. Wong-Wilson: So the draft that you read is available to the public?
Mr. Heintz: being modified. Okay, thank you. Ms. Wong-Wilson: Thank you. Okay, thank you. Well the process that you made out
th ink people really understand how to testify specifically for what may or may not be in your draft. And
few points okay. One is to please make sure as Ana Nawahine just
mentioned that you indicate exactly what statute or ordinance or law is being violated by this ethics inquiry. And secondly, if
in your jurisdiction than the State. I would ask you to also look at
the way your own officers were treated on the day that we were
arrested on July 17th. And this is probably along the personnel issues of being provided adequate food, adequate restroom facilities. They were urinating in bottles because there were no facilities for your own employees who were stationed there for a number of hours. While we…I was one of the kupuna…was
being arrested. The subsequently…officers who were perhaps on the mauna for months doing nothing but spending…getting paid overtime…for harassing the general public. And the kind of facilities that they were provided…cause as you know…there are very few, if any public facilities up there. So I think your own
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employees were treated rather harshly and I find it kind of
interesting that we, Mauna Kea protectors, would be sitting here
enforcement, over this issue. Which I think is kind of a waste of time, to tell you the truth.
Mr. Robinson: Okay. Ms. Wong-Wilson: And spending of County funds and County resources for this phishing expedition is really a waste of time and you should
consider just letting it go. And going onto your other more
important business. But thank you. Mr. Robinson: Thank you.
Ms. Wong-Wilson: I heard that.
Mr. Robinson: Thank you. Alright. Okay next is Keala Leong. Keala Leong? Here we are. Maybe we can move that microphone over for you, Ms. Leong. Thank you
Ms. Leong: Can you hear me? Mr. Robinson:
Ms. Leong: Aloha kakou.
Mr. Robinson: Aloha. Ms. Leong: My name is Donna Keala Leong and thank you for letting me
speak today. And I was just concerned about this particular issue
confused because jurisdiction of this particular of this particular commission is County and not State. And we seem to have drifted together and the vision of what is very succinct is not clear. And
so when we talk about the rule of law, to me the rule of law is
based on standards and codes and ethics and so forth which we live
about if your County people are doing their right things in what
they say and do in their duties as a County employee, then it had
me to think about then, why is this resolution so necessary…what
kupuna that were…was arrested. And so when we were arrested, was it underneath the State that we were arrested? Or the County?
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then is that when you talk about the rule of one, what you want to
do. What you wanna do? Please make sure that the sides of
Then we all had equal time to display what we believe in. Thank you.
Mr. Robinson: Thank you very much. Anyone have any questions? Thanks Ms. Leong. Public member: [Inaudible]
Mr. Robinson: Katherine Roseguo? Good morning. You can move that a little bit.
Ms. Roseguo:
present part Katherine Roseguo. I grew up in Manoa. My mother was a poet, my father was a geophysicist.
i
i
i
i i luna.
encampment at the…the top of Mauna Kea and treating everyone the same. There was a time when the employees to the telescopes had to go through and kind of get permission from the protestors to go up. The County brought up gravel to spread for the kupuna. And there are still
kind of investigation into looking… How are we treating everyone
Mahalo.
Mr. Robinson: Okay. Ms. Roseguo: Any questions? Mr. Robinson: Okay.
Mr. Wiseman: Are you working up there by any chance?
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Ms. Roseguo: No. Mr. Wiseman: Thank you.
Ms. Roseguo:
Mr. Robinson: Thank you. What is that microphone for? Public member:
Mr. Robinson: Oh, for the news. Okay. The fourth branch of government, right? Okay. Next is Mary Haaheo. Good morning. Ms. Kok: Aloha. You know, when I read this and we first came in here you
said this has nothing to do with the road and TMT. But it seems
some emails okay. How many emails did you get over this?
Ms. Sumner-Mack: 24. Ms. Kok: 24.
Mr. Robinson: Ms. Kok: How many?
Ms. Sumner-Mack: What?
Ms. Kok: How many? Ms. Sumner-Mack: About 24 emails plus the testimony session afterwards.
Ms. Kok: Well, you must get emails from all kinds of people and different s issues all over this island about things that are not done correctly and the rule of law and about favoritism.
law. You know . But
have the jurisdiction. And here we are again wasting our time. So
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I think you guys need to go back and do some homework after this
Mr. Robinson: Thank you. Juergen Canda. Good morning.
Mr. Canda: Good morning. Aloha. Mr. Robinson: Aloha.
Mr. Canda:
because I have actually disciplined County employees for that section…for fair and impartial treatment.
understand that but… I want to talk about this rule of law topic xactly what I was…been enforcing for the past 25 years before I retired. And
been a rule of law on Mauna Kea for 50 years. Alright. Since
1968, the State itself has been undermining and making a mockery of the rule of law by not following the laws to give it advantages to a special interest group. Their primary method of operations is simply to ignore the laws until they are caught. Beginning with the
stealing of the lands to build an unauthorized access roads. Lands
that are held in a federally created trust. So even the State itself has now acknowledged that they only own the asphalt and not the ground underneath it. And the Chair of DHHL describes it as an illegal structure in his Senate testimony. So in preparation for…
Yet they arrested 38 people on it without establishing that
did…they arrested people anyways. So in preparation for a second attempt, they began a massive, targeted enforcement campaign to
amendment activity. And in the process, violated fourth and
fourteenth amendment protections to generate statistics to criminalize the movement. They did so against the native population that the States own study has shown that native Hawaiians have historically received disparate and unfair treatment
by the criminal justice system. Exacerbating and perpetuating that
systemic racism. I made my complaint about this and this was published in the press. It was also reviewed by the ACLU and they concurred. A video and it was in the press of alleged police misconduct. They also deliberately withheld the details of the
police reimbursement cost…frustrating the County Council up
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until when they brought in the pre-signed agreement…in violation
of the law…to hold them hostage. To take… In a scandalous attempt to hold them hostage for the reimbursement costs predicated on that they accept more money for unspecified law enforcement uses over a five year period. So what I find kind of
outrageous is, despite the ethics and legal issues, what is all
occurred. You specifically see on this article by a member of the public who writes an opinion letter ignoring all these other issues and try to create one. It was most likely an unprecedented proactive action that you even questioned that there was past
precedence. An uniformed opinion gets preference in committee
action. An opinion articulated by a person who describes herself as recently just moving here from the mainland to retire gets more weight than what the native population has suffered. And as it happens, this rule of law is a pro TMT and State militant theme
that has been projected for months. And they collapsed it when
desk lieutenant, I would have thrown those arrest reports out. I are nuts. W hat did you do? But how is it that everything that the government does in regards to Mauna Kea
is to a special interest advantage and disadvantages the native
Hawaiians. I believe given the totality of these circumstances, that this action is not consistent with Section 14-4(c) of the ethics code. That all persons need to be tboth sides. Instead of flipping the spirit of this County Code on its
head to further compel…further prosecution of native Hawaiians
which creates an advantage for TMT. consistent with 14-2(b) of standards. As this action can give
gonna wrap this up right here.
Mr. Robinson: Okay, thank you. Mr. Canda: The previous… The December hearing, Mr. Wiseman stated that all laws…that law should not be discriminately applied. But that is
exactly what the 50 year history of Mauna Kea is literally all
enfo
demanding
. Public member:
Mr. Robinson: All right thank you. Rocky Thurston.
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Ms. Thurston: Mr. Robinson: Rocky Thurston.
Ms. Thurston:
good, so. Mr. Robinson:
Ms. Thurston:
Mr. Robinson: kala mai.
Ms. Thurston:
Mr. Robinson: Aloha. Ms. Thurston: My name is Becky Thurston and I live in
Pu
been here 55 years and I love this island. I love the people. I love
grandchildren. I was here at your last meeting and at that time I questioned your knowledge base to properly form a resolution
m hopeful…that you now have a better understanding of the issues behind this. It is very complicated, as I am sure you know. The question that you seem to be asking is why is the rule
State itself has undermined the rule of law by not adhering to it for
gonna go over the past 50 years in this testimony but just let me lated.
the Department of Hawaiian Homes Land, the Department of Land
over and over again. And the bottom line is, people are sick of it.
to be fair and impartial, you have to look at the history. I know
imagine drafting a resolution without looking at the total history. Finally I want to
a moral obligation to peacefully protest TMT and to protect our
aina. Acting out of moral obligation can be ethical. Look at the
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moral responsibility. Let me finish with this. When the rule of law has been repeatedly manipulated, rewritten, and wrongly enforced. When it does not protect cultural values. When it does
not respect the aina. We have a moral obligation to peacefully
protest. In return, I believe you have an ethical responsibility to look at the whole issThank you.
Mr. Robinson: Thank you very much. Drena Rodrigues.
Ms. Rodrigues: Aloha mai kakoudo these things, but…
Mr. Robinson: Neither do I.
Ms. Rodrigues: They speak way better than me about this. My thing is, throughout
ied to do…pull the
they been pushing for the State to come in strong handed against us. And they talk about fair and equitable justice under the law. Yet when you look at it, how fair was it for the State to
pave…illegally pave a road and claim a land that did not belong to
them? And they arrested our kupuna on their own lands. So when
falsified and took out the cultural impact…what was it…the cultural impact…not statement…assessment out of the
ethical. You know they talk about ten years of trying to get permits and all of that. There was a lot things that was done that was not ethical. When you go and look at the… If you guys really do the research, you can find so much of the things here that
money for law enforcement to harass us and ticket us on Mauna Kea
his
people to protect speaking out…nobody thought it was gonna turn out as big as it
against us.
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way to get us out of there. They started putting, implementing more rules which the Governor signed. And I mean none of us
first amendment rights. And so if you talk about laws and fairness,
equitable s the State doing. We
all there.
Mr. Robinson: Thank you. Larry Sinkin. Lanny Sinkin. Good morning. Mr. Sinkin:
receiving a lot of mail
what exactly is going on. So we have a statement in the beginning
we have a statement that there was a resolution read in full at the
last meeting. Ms. Sumner-Mack: A draft.
Mr. Sinkin: A draft resolution, read in full with the last meeting. The people
would have an opportunity to comment on. Only now there is no resolution that people have an opportunity to commen
that the prosecutions that are happening right now are being done
authority over any State officials. It was pointed out this morning,
against State officials. You cannot tell the Attorney General of the State of
just not your authority and not your jurisdiction. By the way, I
would just point out, the road is open. In case anybody noticed.
what the purpose of a resolution is at this point because other people have handled this matter in a way that was appropriate for
their authority and their jurisdiction. It was not appropriate for
struggling with the idea of creating this resolution. The question is actually not whether the rule of law is
being enforced or not. The question is whether your Board has
24
jurisdiction to punish public officials for exercising the jurisdiction
that they legally have. So the Attorney General has the legal jurisdiction to decide who to prosecute and who not to prosecute.
officials responsible for law enforcement by saying who should be
prosecute
And decide that this is not really your authority or your jurisdiction. It has no place on your agenda. You have plenty of
other important things to deal with. Thank you.
Mr. Robinson: Thank you. Mr. Wiseman: Mr. Chairman.
Mr. Robinson: Yes. Mr. Wiseman: I just like to clarify one thing. We only meet once a month. And
present.
Mr. Sinkin: Right. Mr. Wiseman: So. The fact that the resolution comes up again in a draft form,
meetings and… Mr. Sinkin:
Mr. Wiseman: Correct.
Mr. Sinkin: I understand, but how do we have a resolution that was read in full at the last meeting…but by the time we get to this meeting there is no resolution?
Mr. Robinson: Mr. Heintz:
Mr. Sinkin:
Mr. Wiseman: Yeah. Mr. Sinkin: You were the one that said there was one read in full at the
meeting.
25
Mr. Heintz: Yes. But, the misunderstanding is, what there is before us is that
earlier draft that was read. There were amendments made. There
are amendments still being processed. And then there will be a final resolution. That will be read Mr. Sinkin: Maybe I do misunderstand. Can you clarify for me when this
Board took testimony on the draft resolution?
Mr. Heintz: The last two meetings. Mr. Robinson: Yeah.
Ms. Sumner-Mack: Last meeting. Mr. Sinkin: Testimony on the resolution? There was a resolution available to the public to read?
Mr. Robinson: not a resolution available. Ms. Sumner-Mack: It was that many people assumed that it had already passed and they came to testify to express their views on it and that was very
valuable but we had not worked out the final working of that
resolution. So passing it out would give people the wrong idea entirely. But it was wonderful…it was wonderful…I think personally. It was wonderful for people to come out to the session because usually we have about three people in here okay. So we
got lots of input and
an opportunity to work further on that resolution. Mr. Robinson: Yeah. So we thank you for your time Mr. Sinkin.
Mr. Sinkin:
and I appreciate the fact you do this. Mr. Robinson: Yeah. We welcome more people to apply and serve on the Boards and Commissions of the County of
looking for good folks. We have an opening. Next would be a
David Prager. Mr. Prager: I
26
Mr. Robinson: Yeah, alright. Thank you. The next would be Gardner DeAguiar.
Good morning. Mr. DeAguiar: years old. Native Hawaiian
the history as far as the rule of law and ethics, people forget that
we had a huge tsunami back in the day, 1960 I believe it was, and the astronomy program helped Hilo get bac
telescopes on the mountain. Regarding ethics in the rule of law up
there, when the protesters protested, they did at first legally. Cause
f speech and all of that. Once they broke the
And he did at first, but then somewhere along the line, it stopped.
resulted in a tent city up there. Which in my
opinion is not the greatest thing to have up there. And yeah, for a while they were just disregarding…people work up there. They
supporting that.
Mr. Robinson: Please. Please. Mr. DeAguiar: The rule of law was supporting their right to work. As well, the rule of law is not supporting the projects right. They went through
all the protocols of getting their permits acquired. Where is the
rule of law supporting that? So I think that needs to be addressed.
worship
and science can coexist on the mountain. Just gotta share it. Thank you. Mr. Robinson: Okay. Sandra Kirkpatrick. Okay. Here we go. No worries. Good
morning.
Ms. Kirkpatrick: Good morning and aloha. And thank you for coming. Thank you for being here. I appreciate your efforts. I know this is a voluntary thing that you do. So thank you for doing it. It sounds to me like
see and hear and feel. And to me it seems that the rule of law has
people who took an oath of office to uphold it. The Governor and
27
that happened. I understand at the time it started to be enforced
and then they decided it was a too overwhelming job. All I can do is look at Oahu, where they were protesting wind turbines. And surprise, surprise. When they got out there and took care of it. It went away. There was no more problem. I would like to see, this
be no more problem, because it seems to me and I think a lot of
people that we have been fighting with this for a long time. And
treated fairly because up until a month and a half or a month
up to the mountain. I have been up to the mountain many times in
saddle road all the time. I look forward to seeing the big horned
forward to see the Hawaiian tradition of navigating by the stars continued by the telescopes that will be looking at the stars. And looking for guidance and looking for help and expressing their
positive and good. And I think it is carrying forward Hawaiian tradition of th
saw something on the news today about the Chandra telescope
of astronomy with the telescope. It will give people jobs. It will
that. And if people have the ability to go up and look at the
t
Mr. Robinson: Time please. Ms. Kirkpatrick: Thank you so much.
Mr. Robinson: Thank you. Appreciate it. Mr. Kirkpatrick: Thanks for being here.
Mr. Robinson: Aloha. Lisa Malakaua.
Ms. Malakaua: Yes. I just wanted to address before I start. Mr. Robinson: Please. Please.
28
Ms. Malakaua: There has been question as to whether or not Ige…if you guys are
responsible for the State employees. I actually called the State Board of Ethics to file a complaint against Ige. And I was told that they actually are the ones that support the State employees. So it looks like this is gonna be dropped back on you guys because they
was trying to raise and kind of get your attention a little earlier so we could have had nipped this earlier but…
Mr. Wiseman: Mr. Chair.
Ms. Malakaua: Just so you know. Mr. Robinson: Yes.
Mr. Wiseman: Yeah I do Ms. Malakaua: Right.
Mr. Wiseman: Board, has 15 members, former judges, other people. And they handle all State employees for ethical violations for advisory opinions. It parallels a lot of the County Board of Ethics. But they
support any side.
Ms. Malakaua: Yeah. They said that they were for the employees specifically, unless there was a conflict of interest.
Mr. Wiseman: I think you got some misinformation.
Ms. Malakaua: Wrong. Yeah. Somebody was giving me wrong in
be calling on the agenda number 7 for no conservation, district
permit, trash debris. And once again, just wanna thank you for
extending me the courtesy. I also would like to approach the… Mr. Robinson: Can you…
Mr. Wiseman: Yeah.
Ms. Malakaua: With a handout. If I could just before I get started. If you wanna just pass on and then…
Mr. Robinson: Please sit so we can record this. Oh, Free Press.
29
Ms. Malakaua: And as you can see on the first page of my handout. A poll was taken that basically asks voters if a two month extension should be granted on the access road. And as you can see there is overwhelming support from the voters who were in favor to
p
with anymore extensions. We have an overwhelming turnout at
the need to impress others by dramatic performances. But I can assure you that the support is definitely there as you can see. The
last two pages are photos of the encampment site taken on
did not even send out a call to clean up the opala until after we had sent out our photos and videos to everyone who would listen and/or pay attention. I also submitted video coverage of the illegal
dumping to your office, earlier this week. And just for the record,
there is a huge difference between legal desecration of the aina that naturally occurs anytime a structure or an infrastructure is build versus desecration created by illegal dumping and/or squatting. Basically Ige and Kim have enforced the law on the same land for
different reasons. By allowing illegal protesting versus legal
permitting to occur. Even unpermitted structures and camping on Kauai was removed from the lands but not in . Basically all their decisions have been inconsistent and an ethical violation. In January, we explained how the County and State Government
were violating our rights by failing to enforce the law at the TMT
protest site to everyone in the community, both equally and fairly.
blamed their illegal dumping on the weather, even though the
debris and pulling weeds nearby. DLNR has documented
environmental damage on parcels that have been designated on conservation lands. DHHL has also removed structures on their lands regardless whether or not they have a conservation district
saying they are protecting their religious rights. However, the first
amendment in the U.S. Constitution says that everyone has the right to practice his or her own religion or no religion at all. Mr. Robinson: Time.
Ms. Malakaua: It guarantees a separation of church and state. Public members: Time.
30
Ms. Malakaua: Excuse me. I would just like to give a little more time here since
minutes. Therefore… Public members: Time.
Ms. Malakaua: Therefore, yet failing to enforce the rule of law is exactly what the government is allowing to have. And the question is…do we really want to leave the next generation with more debt. No we
the DHHL immediately issues notices to vacate…
Public member: Time. Time. Mr. Robinson: Please. Please.
Ms. Malakaua: DLNR to place a moratorium, a new additions to the TMT protest site. Public member: Time.
Mr. Robinson: Please. Ms. Malakaua: And I will give you this for you to continue. Thank you.
Mr. Robinson: Go. Go. Lisa.
Ms. Malakaua: submit it.
Mr. Robinson: Michael
Nathaniel. Please this namunamu is not really helping anybody. Mr. Nathaniel: Thank you for allowing me to speak today. My name is Michael Nathaniel. I was born and raised here and proud to be a
descendant of Kekuhaupio. I was raised in a generation where
great respect of the aina and our culture was mandatory. My parents were loving but very strict. I was raised to know the difference between the difference right and wrong. So I had limited freedom when growing up. I was also taught to always to
treat others with love and respect, no matter who you were.
Military took me from my home of aloha. But when I returned the actions and term aloha no longer existed and I wanted to see it return. One key rule I learned as a child was to always leave a place better than how you found it. And that trashing the aina is
form disrespecting the land, discourtesy towards others and simply
31
disgraceful. So if you decided to leave your opala for somebody
way I was brought up nor many others. Mauna Kea has always been a place for our ohana to go spend the day, have fun and play. I was never told at any time that the mauna was actually
considered sacred. This is now a claim that the protestors are
making. That is lacking in both facts and legal support. The protestors are also claiming that we are all trespassing over DHHL lands to get to the mauna. However, they failed to recognize that they must travel over DOT highways to get to the access road.
And well is their need to travel State Route 200 in order to ascend
all the way up to the mauna. Without these highways, the DHHL portion of the access road would be useless. Yes, I understand you had a vision to restore land and dignity to our people and that the process has been slow in fulfilling this vision as well as promises
broken. I understand that. But to block a public road and trashing
over our mountain is not gonna speed up the process to undo the
individuals who have been held little to pay for their unlawful
act with a sense of urgency to correct the wrongs that our State
leaders have refused to do. Our elected officials have allowed for our rights to be violated and clouded by a gray area. Mr. Robinson: Time please.
Mr. Nathaniel: They have not been acting in the best interest of everyone in the community equally and fairly. And that should be closely
investigation into our complain
the people that create the behavior that causes the reaction. Mahalo. Mr. Robinson: Thank you. Thank you. Jo-Ann Lei Kalamau.
Ms. Kalamau: Finally. That was a long wait, man. Mr. Robinson: Believe me. We sympathize with you.
Ms. Kalamau: Oh me too with you.
Mr. Robinson: Yeah. Ms. Kalamau: Okay, wait eh. Okay.
32
Mr. Robinson: Good morning.
Ms. Kalamau: Good morning. I consider myself retired and I stay in my house for 24 hours if I want to. But today, this meeting brought me out of that house. And it takes an effort
for me to get ready as you can see how I wen walk over here. But
this investigation has
alternative is lie down and look up and I going learn just from doing that. What God has created for all of his children on this
been spending my time reading the scriptures okay.
I want you to put on record what I found in one of the verses. And I going read it rather than memorize it cause it was kind of confusing to memorize. This is from our scriptures we use as church. “Let no man break the laws of the land. For he that keep
it the laws of God had no need to break the laws of the land.” And
his name throughout this July protesting as to invite him to help smiracles that I would love to share with other people. But the key
is…we all get iniquity. We must take this iniquity out of our lives
and invite him to help us individually and collectively. Bnever did that. And I swear that if we fast and pray for all of our
all come together and ask him to help us. Cause he own that
mountain. He created that mountain, Mauna Kea. And he can
make that lava come out of Mauna Kea, okay. So let him come and help us because this I memorized. In the scriptures. “I the Lord am bound when ye do what I say. If ye do not what I say, ye have no promise.” So what does that say?
Mr. Robinson: Ms. Kalamau: Keep the commandments. Thank you.
Mr. Robinson: Thank you, thank you.
Ms. Sumner-Mack: I have a question, please. What book were you reading from? The Bible, but which book of the Bible?
Ms. Kalamau: member of the Church of Jesus Christ of Latter Day Saints
and our scriptures include the Holy Bible, which is the Old Testament and the New Testament. The Book of Mormon, the Doctrine and Covenants where I read this from and the Pearl of Great Price. All of that is our scripture.
33
Ms. Sumner-Mack: Thank you.
Mr. Robinson: T Mr. Cumming:
regards to agenda item number 7. My concern is that there will be
a determination of this Board that this is not a County issue and therefore not the kuleana of this Board. It is clear that the law is…is not being enforced. This is such a dangerous precedence that the rule of law is meaningless. This cannot stand. According
to news reports, it was a Police Department that made the
call to stop enforcing the law, due to the possibilities that the protestors may become violent. Not enforcing the law due to the threat of violence is really, really bad precedence. If I was to go out and protest and block the road, I would expect to get arrested.
Bernie Sanders in 1963 famously was arrested during a civil rights
protest. Jane Fonda recently was arrested five times for protesting climate change because she was doing so illegally. It is expected to get arrested if you are doing something illegal, even during a peaceful protest. Yet the saddle road at Mauna Kea Access Road
and adjacent lands fall under multiple jurisdictions, including
State, DLNR, and others. Because our Police Department is subcontracted by the State for law enforcement, it could be
enforce the law in this instance. Because of the confusion, who is
responsible for the potential…and the potential for finger pointing
Board to determine who is responsible for lack of enforcement. It is however the responsibility of the Board to make a determination that the law was not equally…equitably enforced and we need this
bog this Board down and we need a determination now, not later. I also remind this Board that agenda 7 only addresses the issue regarding why the rule of law is not being enforced on Mauna Kea Access Road. That is not to say there are other potential issues
outside the lack of the law enforcement. Those issues require their
own separate investigation. I beg this Board to make a determination regardless who is responsible. A determination that is solid based on indisputable facts. Then based on this determination, we can make choices on how to proceed and
assuredly ethics violations will not be repeated.
Mr. Robinson: Thank you. Thank you Mr. Cumming. I appreciate it. Ms. Sumner-Mack: May we have a copy of what you just read.
34
Mr. Robinson:
Ms. Sumner-Mack: t get it… If you have an extra. Mr. Robinson:
Akiona. I remember you from last time Mr. Akiona.
Mr. Akiona:
Mr. Robinson: Oh well.
Mr. Akiona: Members, Deron Akiona. Here to testify on item 7. I think honestly, the Members of the commission answered the question today. Who has jurisdiction? If you go back to the July 15th
meeting of the County Council, about two rows back sat the Mayor
and the Police Chief. And both of them stated you can check the record, they…both of them stated…the County does not have jurisdiction. Both of them stated that at that meeting. When asked, both the Police Chief and the Mayor said we have no
two days before the arrest took place.
now, 38 plaintiffs first six. And those who believe that the County was involved in what happened, the testimony of the DLNR officer there said, the
the record of the testimony. So essentially this idea that the Police Chief or the Mayor had jurisdiction or you the County ethics commission has jurisdiction, has in my opinion has been cleared.
DHHL director has said, it is DHHL property. The attorney
general has said, oh no, it belongs to the Department of Transportation. Make this more fun. Call the Department of Interior, which I did. Who has jurisdiction over that road? Department of Interior said DHHL. Who the trustee of DHHL?
has jurisdiction over DHHL? Department of Interior. If you want an opinion on who has jurisdiction of that road…in your search…in your idea of drafting a resolution, a law enforcement and why is it happening or not. I suggest the commission takes
your staff and go do a research on chain of title of that road. I
think you not going like what you find. Honestly. You not going like what you find because if you take that chain of title all the way back to 1893, you going see a mess. An utter mess. In fact, I will guarantee you that if you do the title search and you go back to
1893, you going find out that no title company would ever insure
35
hopcoming to Hilo on a rainy day. But… You know, if you gonna
issue is…nobody wants to say what they really believe. Attorney
General sidetracks it. The Mayor sidetracks it. The Governor sidetracks it. The Department of Transportation sidetracks it.
Public member: Time, time, time.
Mr. Robinson: Would you stop? Would you stop please? Mr. Akiona: Aunty.
Public member: … Mr. Akiona: Aunty, aunty, take it easy.
Mr. Robinson: Deron.
Mr. Akiona: Mr. Robinson: Yeah you did. Excellent.
Can Okay. Donna Grabow. Morning.
Ms. Grabow: Good morning. Aloha Board and Chairman. My name is Donna
Gracourse to sum it up in hundred years of land being swindled from kanaka maoli. And the media is part of the blame. We see a lot of biased. Any influenced
by the foreign entity…you know…Thirty Meter Telescope has a…
entity. But I do want to thank David Coy again over here from Big Island Video News. Responsible journalism. And
heard
also a fe
some of those. Just… But please take this with your
resolution to
freedom of speech. Just throw it out. Throw this direct out please.
36
Why are only Board Members can review the draft? I think you
maoli serving
presented to us have any rule of law over Mauna Kea Road when
but this ethics committee…who pressured you to make a…to do
branch? Is it coming and then the…then you were talking, s just confusing to me, where…where the pressure is for this resolution…this item 7 to
remove protesters. Not just on Mauna Kea but it goes on all the
then written by Sam King? Ken Conklin? Lisa Malakaua? Mr. Robinson: Time.
Ms. Grabow: Okay. Thank you. Mr. Wiseman: Excuse me. I have one…
Mr. Robinson: One question.
Mr. Wiseman: Just a statement. With respect to our former Chairman, Chairperson, Chairwoman who just…whose term expired…a prominent kupuna so.
Ms. Grabow: Yes. Mr. Wiseman: Yeah.
Ms. Sumner-Mack: I would like to comment to that…there was no pressure. It
emerged out of a meeting of the Board. There is no pressure being placed on. Because if there were, I would be not here anymore. Ms. Grabow: It was from the 24 emails.
Ms. Sumner-Mack: From the what? Ms. Grabow: The 24 emails. That helped bring this committee together and it was…
Mr. Robinson: There was no pressure. It was just an expression of concern and so consequently we took action on expression of concern. Ms. Grabow: Okay.
37
Mr. Robinson: And you brought up no kanaka maoli on this Board. We have an
.
on the Board to serve.
Ms. Grabow: Who? Kalakalau was the Chairman last… Mr. Robinson: Ku Kahakalau.
Ms. Grabow:
Mr. Robinson: Her term was up. We only serve five years. This is the fourth
Ms. Grabow: And well, thank you, mahalo for your…
Mr. Robinson: have people. The County needs people to serve on boards.
Ms. Grabow:
Mr. Robinson: And if yo
more than happy to welcome everyone.
Ms. Grabow: people…for Hawaiians. I cannot speak but… Mr. Robinson: maoli
happen to trust…
Ms. Grabow: Mr. Robinson:
kala mai.
Ms. Crutcher: rule 7 too. Mr. Robinson: Okay.
Ms. Crutcher: Okay. When you talk about rules of law, I think you know,
side. I mean. When is the United States Government going to constitutional?
law of the land and takes priority of…over any other conflicting
38
State law. So and I sent
timeline of what Mauna Kea and all the other actions they took. All the manipulation and control. They broke a lot of laws to do this. They manipulated, they did everything. Okay. What am I protecting? The whole top of Mauna Kea is a temple and it goes
this planet. And if you want to desecrate it with what they have up
thing that can happen. Hawaiian from the beginning said, they will not listen too. The reason why it looks like
breaking the laws, is cause nobody listens. There are protectors up
law and I hope you guys start doing that too. You know its… They not only have the Constitution…we have Federal laws…the AIRFA. And you have copies of this and that letter I sent you.
The NAGPRA, the State Law are Article 12 (7). Affirms
and shall protect all rights customarily and traditional exercise by subsistence, cultural and religious purposes. The religious been abused. And I hope at some point that gets corrected. I
mean, Jim brought up a point about how the things that are not
ethical are made laws. And the things that are ethical are ignored
are keeping people from going to the mauna. The Governor made
a law. Made an edict
people that could go up there were the people that worked up there. So they had nothing to do with us. Our purpose of being there is to to support you folks in checking that one out. I also would like to suggest…
Y
my family that spoke Hawaiian…my age. Only the old folks auna Kea
Mr. Wiseman: I have one question Mr. Chair.
Mr. Robinson: Yes please. Mr. Wiseman: Do you know during the ten years of…approximately 10 years or
so of court hearings and administrative hearings, do you know of
all these concerns of religious and spiritual… Ms. Crutcher:
39
Mr. Wiseman: Okay do
interest and religious interest and the sacred concept of the mountain were ever presented to the courts or… Ms. Crutcher: Oh my gosh. Okay. Every letter I write to the Mayor, the
Governor, to DLNR mentions the lanunu umauma. Every single
report is done for University of . It is in the Mauna Kea Management thing. Mr. Wiseman: Alright. Thank you.
Ms. Crutcher: Mr. Wiseman: Thank you.
Ms. Crutcher:
Mr. Wiseman: Mr. Robinson:
so
Ms. Landt: E ho mai. E ho mai. E ho mai. E ho mai. [Doing meditative
wife in the State of and in the Earth. And I am here to
remind everyone that we come from the same place and we are
of our continuation. It is what is happening. Our continuation.
created a great confusion be
between mother, baby and aina. And when mother and baby are not separated at birth and the aina is what they identify withtheir first mother. TWhen there is disturbance in the land, it creates war. Creates
unrest. Peleke. It creates illusion. So just like everyone else right
now, you are digitally moving through tons of stuff. But you know wnight in the dark. And then you realize, wait a minute, you know
been
would
40
ou
The truth is…
Mr. Robinson: Time. Ms. Landt: We are one with this land.
Mr. Robinson: Time.
Ms. Landt: With this elements. Give thanks and praise it. Mr. Robinson: Thank you very much. Okay. The last, Ronald Fujiyoshi. Kahu.
I remember you from last time.
Mr. Fujiyoshi: Aloha, County Board of Ethics Members. Again, my name is Ronald Fujiyoshi. I hope you remember that I testified on January 29th, 2020. My main conclusion was that you take no
action until the judicial process is completed. Only then will what
you have called the rule of law become clear. In other words, I and the majority of those who testified were questioning your assumption that the rule of law was not being enforced on the Mauna Kea Road. Thus, I am surprised that this Board is
proceeding to draft a petition that you will send to the State Board
of Ethics. I really want to see the content of your revised draft. Without the advantage of seeing the wording of your petition, I want to submit further testimony. I tried to be very polite when I testified last month. I shared my long history of residing in
and on this island. I shared that I attended the University
of Hawa , here in Hilo and graduated from University of . Then attended the Chicago Theological Seminary and graduated after five years with a degree in theology, specializing in Christian ethics. I shared that I served as a missionary in Asia for 20 years
working with people of various faiths and returned to in
1988 where I have lived since. I raised two points. First, learning that the Board…members of this Board of Ethics have taken an oath to uphold the Constitution of the United States of America and the Constitution of the State of . I read you Article 12,
Section 7 of the State of Constitution that Kupuna Nohea
Crutcher again gave to you. I will not return it on because I might run out of time right. The basis of the law in the State of is the State Constitution. The kblocking the Mauna Kea Access Road only to the construction of
the TMT are exercising their constitutional rights. The second
41
point I made was to remind you that our democratic form of
government has three branches that hold each other in check. The Administrative Branch, the Legislative Branch and the Judicial Branch. The Judicial branch for us is the court system. The 38 kupuna who were arrested on July 17, 2019 are still in the process
of being tried in the courts of law. Until their cases are completed
in the judicial system, there is not a definite rendering of what the rule of law means for this issue related to Mauna Kea. Mr. Robinson: Kahu, time.
Mr. Fujiyoshi: Is it time over? Mr. Robinson: Yeah. You just had your three minutes.
Mr. Fujiyoshi: So I expect this Board of Ethics of the County of to
represent the majority of us who are testimony. And I see that Public member: Time, time, time.
Mr. Robinson: Please stop. Public member: Time.
Mr. Robinson: Anyway Kahu.
Mr. Fujiyoshi: Can I just finish. I have two more sentences. Mr. Robinson: If you can make um fast.
Mr. Fujiyoshi: There is not one of you who is a member of the host people here in . Have you all majored in the customary and traditional rights and religion of the native Hawaiiansdoing. It smells of an action by settlers with a racist attitude
towards the host people of . Like I suggested last time. I
suggest you go up to the mountain and talk to the kupunas on the saddle road and discuss more about their beliefs. Public member:
Mr. Robinson: Okay that was item 2 of our statements from the public. No I
Mr. Yoshimoto: You want to testify?
42
Mr. Shot: Mr. Yoshimoto: You let him testify.
Mr. Thompson: I would also like to testify.
Mr. Robinson: Ah, okay. Just come up and three minutes okay. Because we have a lot of business. Other business to do today.
Mr. Shot: Aloha, my name is Richard Shot. So I understand this meeting is
about the rule of law. But my question is…confusion is…who is international , the United Nations has a law like United States, the Federal Government
might not like their laws and make their own laws down in
the County. And then [inaudible] law. But I understand you guys are bound to the County of , correct? S on the Police Department law enforcement
code of ethics. Since as a law enforcement officer, my
fundamental duty is to serve mankind, to safeguard lives and property, to protect the innocent against deception, and weak against oppression and [inaudible] and the peace against violence and disorder. And respect the constitutional of all men. To liberty,
equality, and justice. I was on Mauna Kea Access Road, July 14th
at 6 A.M. and I was there for nine straight days. And I watched as the Attorney General of the State, the DLNR… Mr. Robinson:
Mr. Shot: with pepper spray, battalions I watch as the County of Maui sent the ninja turtle ride squad. And during this entire time arrested our kupuna. I never saw the County of , offer the State officers
[inaudible] our citizens of the County of the island of from
[inaudible] from the state. Because hundreds of officers [inaudible]. They brought an LRAD on to Mauna Kea Access Road with women, children, families on the road, peacefully
offensive move and yet the State and other [inaudible] of the State,
sent hundreds of officers, millions of dollars and not once did I see the officers of the County of [inaudible] us. If you want to look into ethics but on the website it says their protected from deception [inaudible]…
43
Mr. Robinson: Not so close.
Mr. Shot: Mr. Robinson:
Mr. Shot: So if as a County Board of Ethics look into you know if not taking any action…Mayor Kim and the office of protect the people of . And there was hundreds of armed men coming from off different islands. For what? Who is law?
Thank you.
Mr. Robinson: Thank you. Thank you. I think one more person and then… Oh my gosh. We have so much work.
Mr. Thompson: believe in the
equal protection… Mr. Robinson: First your name.
Mr. Thompson: Oh my name is Ryan Thompson and I live in Puna. So I just
rights…specifically were violated by the protesters when I tried to
closed. They denied me access. So when I went and talked to the
police down the road, the police said talk to Mayor Kim, talk to
my rights that day on December 14th. So I believe in that and I also wanted to say as a business owner of 25 years that I have just recently started a
will protect my rights as a business owner, seeing what they have done to not protect the rights of Thirty Meter Telescope. So I feel
have a conflict. They [inaudible] license. They went through the due process. It went through the courts. But they have not had the
rights protected. I have not had my rights protected. I know a few other people over here who have also not had their rights protected. And so I feel like the equal protection of the law is it a constitutional right that we should all enjoy? But it seems like not
live here. I still pay taxes here. But I will not be paying business taxes here. And I will not be generating GDP for the State of . My job, my company is in biometrics and automated pharmacies. And without the Mauna Kea…without the Thirty
44
be able to source proper qualified candidates for jobs. And so
there will be no way that my business could be successful here.
have. So I mean, that just for me, as a person, that. In that capacity as a business owner. So thank you.
Mr. Robinson: Ms. Lee Loy: Good morning. First of all, thank you so much. I know that this
being here. My name is Bridgette Lee Loy Bales
say is that, my parents, specifically my father for over fifty years ago, was here trying to protect the mauna. Okay. My father, fifty years ago. Over fifty years ago. So here I am today, his daughter,
siblings, sitting in the kupuna tent, still trying to protect the mauna.
I have children. An attorney. A professor. Standing with us. Still trying to protect the mauna. I have grandchildren. A National Honor Society senior at Sacred Hearts Academy. A junior at Punahou. A seventh grader at Stevenson Honor. An elementary
student at Noelani. All standing with us. I [inaudible] that they
are not gonna be in the kupuna tent some years down the road. So I think eventuaEventually, you will determine, that this does not fall within your
away. We are not going away. We will be here for future
generations to ensure that our resources...Mauna Kea…including…Mauna Kea are protected. Thank you. Mr. Robinson: i tem 2 of our
Yeah so please. Mr. Wiseman: Yeah but probably yours will probably be warm. Ours is cold.
Mr. Robinson:
12:09 p.m. The Board took a recess for lunch.
* * * * *
12:45 p.m. The Board went into executive session
* * * * *
1:00 p.m. The Board returned from recess and executive session.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF JANUARY 29, 2020. (1:01 p.m.)
45
Mr. Robinson: Okay. Mr. Wiseman: I make a motion to approve those minutes.
Mr. Robinson: Is there a second?
Mr. Heintz: Second. Mr. Robinson:
that we approve the minutes of January 29th, 2020. Any further
discussion? If not, all those in favor say aye. Contrary minded. Okay. Motion and Vote: Mr. Wiseman moved to approve the January 29, 2020 minutes. Mr.
Heintz seconded the motion. All members voted aye.
4. NEW BUSINESS (1:01 p.m.)
Mr. Robinson: There is no new business. We received nothing but a lot of… We received no filings. 5. UNFINISHED BUSINESS (1:02 p.m.)
a. Petition 2019-02: Continued review of petition alleging that a County officer or employee and the Hawai'i County Board of Ethics is in violation of Sections 2-83 (1:02 p.m.)
Mr. Murai: And Mr. Chair, this is Deputy Corporation Counsel, Gary Murai.
appearance and that Mr. Yoshimoto has stepped down. And I do note that same parties, same Board Members are present from…as when we recessed.
Mr. Robinson: Okay.
Mr. Robinson: I had to recuse myself so Mr. Wiseman will do this. Mr. Wiseman: As you recall this is continuation of the informal hearing from
January 29th, which we continued for the main purpose of allowing you to review the respondentpetition. Mr. Tucker: I understand. My I ask a question?
Mr. Wiseman: Yes.
46
Mr. Tucker: As my understanding at what we involved in at the last meeting
was an initial hearing. Did we transition from an initial hearing to an informal hearing at some point, Mr. Wiseman: it was an informal hearing.
Mr. Murai: Mr. Vice-Chair, was always set for informal hearing. And which was had at the last meeting. And my recollection, and I stand to be corrected if misstated. But because... In other words, the Board had heard
from you and from Mr. Yoshimoto. But because the Board could
until the hearing itself, the matter was continued so that you may
written r
purpose of wrapping up that informal hearing, by giving you an
opportunity to respond. If you have any response to Mr.
Board will go into… Well the Board has already made certain findings on the record previously but you
on. Mr. Wiseman:
comment that you want to comment on.
Mr. Tucker: Well, as I recall, I was agendized as an initial meeting. Mr. Wiseman: an informal
hearing and this is a continuation of that. And we continued it due
here today to hear any comments you may have on that document.
Mr. Tucker: Okay. And as I recall from the notes that we took at the last
meeting, with the minutes not being available on line yet. There were some investigations that you were gonna make or check in through some facts that I wouldpoint. But let me proceed. So I have had an opportunity to review
Approximately 60 pages with documentary things. And it was my understanding in his response was… Trying to make this as succinct as possible. That the primary defense that is presented is the fact that there are different levels of hearings. And in those
levels of hearings which was discussed in January 9th of 2018 at a
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lengthy hearing with the Board of Ethics. There are multiple levels
of hearings involving a formal hearing. An informal hearing, an
far through section 5 is something called investigatory hearings d to like four potential terminologies for
hearings. And that the defense is, that in my original complaint of
2016-16, 2016-17, that I was not entitled to cross examination or discovery due to the fact that it was an informal hearing. And that the rules of formal hearings did not apply in informal hearings. Now as a simple kind of response to that and being unaware of
they may or may not be at any given time. I would say that I was operating under the impression in 2016-16 and 2016-17 that I was participating in a formal hearing. That the Board of Ethics failed to notify me of anything different to that effect. And that in fact,
the only notice I had received from Corporation Counsel of the
Board of Ethics, prior to the hearing of 2016-16 and 2016-17 was that the respondents of my complaint had responded in writing within the time allowed. And that was not available to me due to confidentiality. But to enhance my confusion and to create
say enhance my confusion by the Board of Ethics, apparently
respondents are not required to respond in writing within 20 days,
Yoshimoto.
Mr. Wiseman: But you now have the response.
Mr. Tucker: I do but it was not even required. Mr. Wiseman:
Mr. Tucker: Mr. Wiseman: defer. I have to do my own check on that and check with counsel
Mr. Tucker: No, no, no. Well these are issues that we need to explore. Mr. Wiseman: Okay, continue…
Mr. Murai: sorry Mr. Vice- wanna make sure that no one else is similarly confused. Mr. Wiseman: Okay.
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Mr. Murai: Mr. Tucker, I just heard you mention that you… When you say
when you had mentioned something about lack of appropriate
for this matter, your complaint or back in 2016?
Mr. Tucker: talking about 2016-16 and 2016-17.
Mr. Murai: hearing we held earlier in the month.
Mr. Tucker: the Board did fail to give me proper notice regarding these proceedings. Mr. Murai: Okay. Because all of this is being recorded and has to be reduced
to minutes. Please do our Board secretary a favor and make clear
Mr. Tucker: -16 and 2016-17 are the basis upon which I have claimed I was denied discovery and cross
examination and in such, my civil rights I have claimed that were
being violated. Mr. Murai: Alright. Thank you.
Mr. Yoshimoto: Mr. Chairman.
Mr. Wiseman: Yes Mr. Yoshimoto. Mr. Yoshimoto: If I may. My understanding of the Board rules is that respondents
And so I believe that applies to when someone is the subject of a petition. So just to clarify for the record. Mr. Wiseman: Thank you.
Mr. Tucker: Okay. And it seems to my reMembers to correct me. That at the last meeting we had last month, the reason that I received no written response from the
complaint, was… Can someone fill in the blank? Mr. Wiseman: Yeah. Because they were former commissioners. They were former members of this Board of Ethics. And the only one that
49
still exist…that was at issue at the time was Mr. Yoshimoto, who
did file a response. Mr. Tucker: So they were exempt from responding to the complaint…
Mr. Wiseman:
members are not subject to the jurisdiction of this Board. Mr. Tucker: And Mr. Richards is recusing himself because?
Mr. Wiseman: Mr. Robinson.
Mr. Tucker: Mr. Yoshimoto: Yeah. My understanding is Mr. Robinson was serving on the
respondent. Mr. Wiseman: .
Mr. Tucker: So the only surviving respondent from that hearing is exempt from
responding to my complaint because…? Mr. Wiseman:
Mr. Tucker: So under the code, that would be taken as a default?
Mr. Wiseman: No. Mr. Murai: If I may, Mr. Chair? You know Mr. Yoshimoto just cited Rule 4.7.
Which is a rule that allows the respondents to a third party
complaint an opportunity to respond. It gives the respondent the opportunity but it does not refile a response. It says you shall have the opportunity to file a
response with a default, when there is not requirement that a
response be filed. Mr. Wiseman: If you were in a court of law, it might be different. You may be correct in that. Mr. Yoshimoto.
Mr. Yoshimoto: One more thing to point out. When I wrote the response dated August 28, 2019, my arguments pertain, not only to myself, but to the Board as well. If you look at the memo.
Mr. Wiseman: Okay. Anything else Mr. Tucker?
50
Mr. Tucker: Well. So if you could clarify for me, the members of a Board of Ethics or any board are not subject to the rules and regulations of rules and procedure
Mr. Wiseman: Mr. Tucker, at this point, the only two people at…issuing at petition is Mr. Yoshimoto, who filed a response for himself and for the Board and Mr. Robinson.
Mr. Tucker: Okay.
Mr. Wiseman: Anything else? Mr. Tucker: So I was limited in my ability to file a complaint accurately by the
information I was provided in a meeting with Mr. Yoshimoto.
Mr. Wiseman: Well that would call for some to give you.
Mr. Tucker:
Mr. Wiseman: Mr. Tucker:
Mr. Wiseman: Mr. Tucker:
Mr. Wiseman:
Mr. Tucker: m not asking you to. Now we had a meeting on October 31, 2018 with Mr. Yoshimoto prior to…to predicate to having a discussion with the Board of Ethics regarding structural changes
that can be made in the code in the future and it was well received
at the time we had that discussion. But in meeting that I had with Mr. Yoshimoto, which we recorded, he recorded, I recorded. I reviewed the recording and in that meeting I was told by Mr. Yoshimoto and I quote, “There is nothing to prevent you from
filing a complaint against the Board.” So that was untrue?
Mr. Wiseman: Mr. Tucker:
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Mr. Wiseman:
agenda. Mr. Tucker: I understand that. Well then, perhaps we could go to item 2 of this
Mr. Wiseman: Mr. Tucker: No I refer…it was agendized as correspondence dated September
23, 2019 received from the petitioner that was me.
Mr. Wiseman: Item 2 in section of the code provided.
Mr. Tucker:
correspondence dated September 23, 2019 received from the petitioner. That was me. Mr. Wiseman: And what are you asking about that? What do you want to say
about that one?
Mr. Tucker: Well on August 1st of last year. Six months ago. I submitted what became Petition No. 2019-02. Now subsequent to that, I was informed that if I had any questions to please contact Ms. Pagala,
the secretary for Board. I did have some questions, I contacted
Ms. Pagala as the letter indicated. And I received a response
questions. Now at that moment I was left with nobody to correspond with. Now subsequently another attorney from the
Corporation Counsel office let me know that the County was in the
process under a Bill No. 258 at the Council to acquire funding to hire Mr. Murai from Maui. And that I would have address my questions to Mr. Murai, which upon finding out that 258 had been approved. The funding had been aliquoted. Mr. Murai had been
contacted and informed. I got in touch with him on the September
10th which was a day before my scheduled hearing of September 11th. And that was the first moment which I found out that my hearing which was scheduled for the next day was actually had been postponed, cause nobody had bothered to notify me of that.
Now also in our email correspondence, I mentioned the fact that I
believed the 20 days had expired and there had been no response from the…that I was aware of…from the respondents. Mr. Wiseman:
52
Mr. Tucker:
Mr. Wiseman: How is that at issue to your complaint against being denied the right to cross examination and discovery?
Mr. Tucker: Well it has to do with the fact that testimony given and on record
from a previous counsel or previous Board Members and J Yoshimoto has…or especially Ken Goodenow has been that when Gary informed me that the respondents did not have a need to respond because it was an informal hearing. He said if I had a
complaint about that, I should submit an objection to the Board of
Ethics. And I submitted a written objection on September 23 through the Board of Ethics stating my reasons for the objection and requesting a formal hearing. Now in January of 2019, in our discussions with the Board, it was Mr. Goodenow who went at
some length in our transcripts, we had 37 pages of transcripts
explaining that a petitioner had a right to ask for a formal hearing. That was what he had said on record. That the petitioner had a right to request a formal hearing. So I made that request on
Mr. Murai: Excuse me, Mr. Vice-Chair if I may. Mr. Tucker, with all due
respect.
Mr. Tucker: Yeah.
Mr. Murai: What we have to remember now is the only reason… This is
heard your prior testimony from the last hearing. I just want to remind
Yoshi
Mr. Tucker: your agenda.
Mr. Murai: What second agendized item?
Mr. Tucker: It was a correspondence dated September 23, 2019 received
from…
Mr. Murai: th agenda?
Mr. Tucker: Yeah.
Mr. Murai: th.
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Mr. Tucker: It never came up on January 29th.
Mr. Murai: But not on todays…
Mr. Tucker: is meeting.
Mr. Murai:
time speaking of things that are not responsive, then the Chair
may…preclude you from…
Mr. Tucker: Okay, well then let me…let me try to wrap this up for you…
Mr. Wiseman: Yes, please.
Mr. Tucker:
your day. Or mine. Now, at the last meeting, Mr. Yoshimoto offered to review the record and to find out what recommendations were being made and to adjust the code based on our lengthy meeting with the Board of Ethics back in January of 2018. And
you had mentioned that you would look into it as well because
there were subjects so that we could have avoided all this by. If the Board of Ethics was proceeding in a manner to improve the code, to reduce the number of opportunities for these conflicts improvements along the line
of adding truthfulness or discovery here, enhancing discovery or to
cross examination or other lack of opacity. But J has given me an email yesterday, which I received, pointing out that three things. Was that it? You gave me the three things. Three things were being amended…offered from this…from the Board of Ethics to
be amended. One of which was to add one word to a title in the
section. Another recommendation was to make that word that was added to be in bold. And then the third thing was to reduce the statute of limitations on ethics violations from a period of six years to two years. So I would like to close and say in that I left the
hearing in January 9th, 2018 saying I reserve the right to file a
complaint in a later date. But… Dependent upon seeing how the Board performs on trying to make improvements in the code. From what J informed me of yesterday, the Board not only failed to make any improvements with the code no matter how much happy talk they gave me in the hearing. That they actually made
an effort to reduce and reverse progress in the code by reducing this statute of limitations to two years. Now I have spent six months just getting to a hearing for this petition. And for the Board to be looking at a situation where they want to reduce the period for complaints to two years is just really moving backwards.
54
Mr. Wiseman: Let me just interject here. The period is a statute that runs from the
complaint…not to petition. Not to have your whole hearing within those two years.
Mr. Tucker: I understand that. But six to two is a substantial reduction of the
window in which a citizen can operate.
Mr. Wiseman: But six years Mr. Tucker. You have to realize, see, the only statute in a civil world that has a six year statute of limitations is contracts.
, six years later and to be able to file a petition against a government
employee. There are hardly any statutes in U.S. jurisdiction that
goes six years for something like that.
Mr. Tucker: But there is one here.
Mr. Wiseman: that.
Mr. Tucker:
Mr. Wiseman: In the efforts to change a code, depend on the Charter Commission which one.
Mr. Tucker: Okay.
Mr. Wiseman: So okay, continue.
Mr. Tucker: So anyway, as near as I can determine that the Board of Ethics is abandoning any consideration or interest in improving the communications with petitioners such as myself. Improving the opportunities for discovery by having a mutually redacted
documents going back and forth. By allowing for waivers of
investigatory process or a clarifying the level of formal, informal investigatory and initial hearings to the point that can be
interest is p
nearly the end of it all.
Mr. Wiseman: Well…
Mr. Tucker: And I will close…
Mr. Wiseman: I will close by saying your statement is totally without merit,
Mr. Tucker: welcome.
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Mr. Yoshimoto: Mr. Chairman. Briefly in response. What I did provide to Mr.
Tucker was, what was agendized on a previous meeting by the Board. So that part is accurate. What is not accurate is that the
As I mentioned the last time, the Board is waiting for the Charter
amendment to be voted upon by the voters. And it is at that time,
Board has already gone through a rule amendment process as the done. I canno
record. The Board has spent considerable time working on those rules that addresses the concerns to make sure this clarity. In
say for sure, the Board will also look at making sure that the code
is consistent with the Charter, as well as the [inaudible].
Mr. Wiseman: Indeed we have spent considerable time on it. Okay. Thank you…
Mr. Tucker:
Mr. Wiseman:
advisement.
Mr. Tucker: I know you will. Thank you.
b. Petition 2019-05: Continued hearing regarding request for an informal advisory opinion from a former County officer or employee to determine compliance
with Section 2-91.2 (Post-(Closed hearing
requested) (1:27 p.m.)
Mr. Robinson: that one as well.
Mr. Murai: Yes, I am.
Mr. Robinson: Okay. So we would need to have a closed hearing to discuss this matter. I to do this, we would need to continue as a closed hearing, correct?
Mr. Wiseman: Mr. Murai: advisory opinion had requested a closed hearing and the matter
was continued to today because we were presented…the Board
56
was presented with some voluminous information. And Board
Member Sumner-Mack had suggested… Mr. Wiseman: Right the whole package.
Mr. Murai: That we should take some time digest all that material. So the only
deliberation and render a final decision. Now because we started the matter in a closed session… Although Mr. Jung is not present today, I would recommend to the Board that we continue this
matter in a close session because there were items that Mr. Jung
had presented to the Board that he wished to keep private. Mr. Wiseman: Right.
Mr. Murai: isk of disclosing something he may
have wanted to keep private in an open session. Mr. Wiseman: I make a motion we continue the matter in a closed session.
Mr. Heintz: I second.
Mr. Robinson: say aye. Okay we will have a closed session. So we have to ask you folks
Motion and Vote: Mr. Wiseman moved to continue matter in a closed hearing. Mr. Heintz seconded the motion. All members voted aye. 1:28 p.m. The Board moved into closed hearing. * * * * 1:50 p.m. The Board returned into regular session.
c. Petition 2019-07: Continued review of draft informal advisory opinion regarding a
petition from a County officer or employee to determine whether there is a conflict of interest under Section 2-84 of the Hawai'i County Code for his office to prosecute cases involving a protest site on Hawai'i Island. (1:50 p.m.)
Mr. Robinson: J, I think you emailed that to us.
Mr. Yoshimoto: I did and I do have hard copies if the Board Members want to look at it again.
Mr. Robinson:
Mr. Wiseman: Are we open to discussion in this matter?
57
Mr. Robinson: Okay, go ahead. David. Mr. Wiseman: Now after, with respect to the draft opinion…advisory opinion. After my review of several items such as…in particular…our
dissent, as well as the transcript in my notes in the matter. I have a change I would like to make in this opinion. And my concern is that, with respect to the issue of appearance of impropriety, I do believe that notwithstanding the code absence of that item. I do
d I
would either concur with him in part or offer an amendment to this draft decision which I can read in for you. If you can go into the
Law. Based upon the evidence presented and the
whether petition has a substantial financial interest in RCUH is moot and was not addressed.” “Petitioner also asked about the appearance of impropriety, however, the appearance of ode. Thus,
the Board does not opine about the appearance of impropriety
directly but did find in the interest of prudence in maintaining the tablish a barrier within his office and stay away from those cases. And I would, if I could find my notes and at that point, I would offer to include…
So going back to the draft opinion…in the conclusion where it
states, “Further, Petitioner also asked about the appearance of impropriety, however the appearance of impropriety is not a
following language be added after that sentence…notwithstanding,
such fact, the Board believes it has an inherent right to consider
and opine on the appearance of impropriety. In furtherance of this concept, we must acknowledge the fact that the Petitioner queried on this specific issue in his petition. It was debated and discussed for some time during the heari
scope transcends the Code of Ethics when
dealing with issues of ethics and morality. And we affirm our right to consider…our right and obligation to consider the issue of an appearance of impropriety when appropriate. And I would…
Mr. Robinson: And so would that be the new last sentence or would that be in
addition to? Mr. Wiseman: No, that would be inserted after…
Mr. Heintz: Four lines up from the bottom.
58
Mr. Robinson: Ethics Code…and then it would continue after that. Thus, the Board does not opine about the appearance of… Mr. Wiseman: Yeah. So that would be stricken.
Mr. Robinson: Oh, that would be stricken? Mr. Wiseman: Yeah. And to revise…a Petitioner shall establish at wall or Mr. Heintz but
I would find an appearance of impropriety.
Mr. Robinson: Okay. Let me try this again. Okay, four lines up from the bottom. “Further, Petitioner also asked about the appearance of impropriety, however the appearance of impropriety is not a
Mr. Wiseman: Right there would be my insert. Mr. Robinson: That would be your insert and then after your insert would
start…thus, the County Board does not opine about the appearance
of? Mr. Wiseman:
Ms. Sumner-Mack: What do we take out then?
Mr. Wiseman: We would take out…thus the Board does not opine… Mr. Robinson: The appearance of impropriety directly but did find…
Mr. Wiseman: Yeah. We would take out… Mr. Robinson: That next…
Mr. Wiseman: Thus, the Board does not opine about the appearance of
impropriety. Period. And then I would add on that. In addition, the Board does find in the interest of prudence…and that can stay the same.
Ms. Sumner-Mack: But directly…comes in later?
Mr. Wiseman: Ms. Sumner-Mack: What do we not mark out?
59
Mr. Wiseman: about the
appearance of impropriety directly but… Mr. Robinson: Period. You take that section out.
Ms. Sumner-Mack: Take “but” out too?
Mr. Robinson: Yeah, take “but” out too and then it would start…did find that in the…
Mr. Wiseman: In addition or however…
Mr. Robinson: But you would say the Board did find? Mr. Wiseman: Yeah.
Ms. Sumner-Mack: Did find that in addition… Mr. Robinson: Did find…okay.
Mr. Heintz: Wait a minute…did find what?
Mr. Robinson: confidence in the government, that Petitioner shall establish a wall or barrier. So we take out, that one and add that…the Board did
Mr. Wiseman: pect
when it comes to ethics and morality. To offer this…to be able to
consideruling on it and I would add to that and the Board does find that there was an appearance of impropriety.
Ms. Sumner-Mack: So where would you put that in exactly?
Mr. Wiseman: At the end of my statement. Mr. Robinson:
would like to have us…
Ms. Sumner-Mack: I wanna be certain what… Mr. Robinson:
60
Mr. Wiseman:
Ms. Sumner-Mack: Furthermore… Mr. Wiseman: So all my stuff would go in here, right.
Ms. Sumner-Mack: Okay and then it comes down to… Mr. Wiseman: And then I would add. Perhaps, J, I would defer to you furthermore... The Board did find or finds an appearance of
impropriety.
Mr. Heintz:
position is just the opposite. There was not only was there no
conflict of interest, there was not even an appearance of a conflict
of interest. Because the way in which one determines whether or
utilize a standard. And that standard is an objective standard…the reasonable person standard…and that standard we talked about
over to find some group of people
[inaudible] law or in the court of law.
Mr. Wiseman: We decided there was conflict. Mr. Heintz: We decided there was no conflict and we dodged whether or not there was an appearance. And I held the view that there was not an
appearance. Nan held a view that there is an appearance of a
conflict of interest. What David is doing, I actually agree with, but I would still say I would still need my dissent. Because what David is doing, is opening the door part of the way which I totally agree with. We must, as the Board of Ethics, be more than
concerned, simply about the letter of the code. Ethics and the
importance of this Board is greater than any codified code. Because as I indicated in my dissent and opinion, that is an anemic view of ethics. And I object to an anemic view of ethics.
Ms. Sumner-Mack:
Mr. Heintz: Because, because what he is adding, indicates that we need the first
rarely, but sometimes. And this is one of those times. Because he
was being criticized in the press…including some legal
61
people…
actually what he was more concerned about. And we punted on
in his version. But at least he goes far enough to say that we should
says that we find an appearance of conflict of interest or
discussion.
Mr. Wiseman:
Ms. Sumner-Mack: Do you cut it? Mr. Wiseman: Yeah.
Mr. Heintz: So we can leave that out… Mr. Wiseman: Yeah, the problem I have with us making decisions and perhaps is
Sunshine Law, we can discuss this and look over another draft is
during this meeting which is once a month. Mr. Robinson: Yeah.
Mr. Wiseman: I mean we gotta do something about that. Because, ideally, this
would be like J could send us a new draft sometime next week. We could all put in our input and have a final version. I mean this is going on and on. And thioffice before we make a decision. You know…
Mr. Heintz: So, if I can expedite just a little bit. Mr. Robinson: Please do.
Mr. Heintz:
And ththe prudence business. Mr. Yoshimoto:
with?
Mr. Wiseman: Okay so. Going back to the conclusion section. Mr. Heintz: Four lines from the bottom of the page.
62
Mr. Wiseman: “Further, petitioner asked about the appearance of impropriety,
however the appearance of impropriety is not a standard within the
following language notwithstanding such fact, the Board believes it has an inherent right to consider and opine on the appearance of
impropriety…and appearance of impropriety. In Furtherance of
this concept, we must acknowledge the fact that petitioner queried this particular issue in his petition and it was fully debated and
position that the scope of… I would add here…the scope of our
duties and obligation transcends the Code of Ethics when dealing
with issues of ethics and morality. And we affirm our right to…and obligation and consider the issue of appearance of impropriety when appropriate.
Mr. Heintz:
Mr. Wiseman: Okay. Mr. Heintz: So if he stops there, I will agree with that.
Mr. Wiseman: Mr. Heintz: But I still have my dissenting opinion.
Mr. Robinson: Still agree to dissenting opinion but…
Mr. Yoshimoto: from there…furthermore, the Board did find that in the interest of prudence…
Mr. Heintz: Right.
Mr. Wiseman: Yeah. Mr. Heintz:
Mr. Yoshimoto: motion to amend? Mr. Wiseman: Right. I would move to amend the language just submitted...
Mr. Robinson: As noted. Mr. Wiseman: As amended.
Ms. Sumner-Mack:
63
Mr. Robinson: Okay so moved and seconded that we approve this informal
agreement.
Mr. Yoshimoto: As well as including…
Mr. Robinson: Mr. Heintz:
Mr. Robinson: Mr. Heintz: In part…
Mr. Robinson: And dissenting in part opinion.
Mr. Heintz: Yes. Mr. Robinson: Okay. Is there any further discussion? If not, all those in favor say
aye. Contrary minded. Okay.
Mr. Wiseman: So again, this is next month. Mr. Yoshimoto: No.
Mr. Robinson: Mr. Heintz:
Mr. Yoshimoto: Rick will sign off on it.
Mr. Wiseman: Oh great. Okay. Mr. Yoshimoto: Once I make changes.
Mr. Robinson:
Motion and Vote: Mr. Wiseman moved to accept the informal advisory opinion with noted amendments. Ms. Sumner-Mack seconded the motion. All members voted aye. Mr. Robinson: move that executive session
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and do the executive session which will be really quick cause all
we have to do is discuss the minutes. And so item number 7. 6. VOTING ON EXECUTIVE SESSION MATTERS (2:57 p.m.)
a. Review of the executive session minutes of January 29, 2020. Mr. Robinson: there a motion to approve?
Ms. Sumner-Mack: I motion. Mr. Robinson: Is there a second?
Mr. Wiseman: Second.
Mr. Robinson: all is approved. Motion and Vote: Ms. Sumner-Mack moved to approve the executive session minutes. Mr. Wiseman seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawai‘i County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. (3:00 p.m.) Mr. Yoshimoto: The financial
Mr. Robinson: Mr. Wiseman: I gotta go.
Mr. Robinson: Okay so, there was only one…
Ms. Pagala: Number 49. Mr. Robinson: Okay. All of the financial disclosure forms with the exception of
Item 49 which was referred back for further completion. Okay.
Okay so all those in favor say aye. Motion and Vote: Mr. Robinson moved to file all financial disclosure forms with the exception on Item 49. All members voted aye.
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7. DISCUSSION REGARING DRAFTING A RESOLUTION TO CONDUCT AN INVESTIGATORY HEARING AS TO WHY THE RULE OF LAW IS NOT BEING ENFORCED AT THE MAUNA KEA ACCESS ROAD. REVIEW OF RELATED EMAILS RECEIVED FROM MEMBERS OF THE PUBLIC REGARDING MAUNA KEA. (2:09 p.m.)
Mr. Robinson: of those. And we heard a lot of presentation earlier this morning. Mr. Wiseman: So are we open for discussion?
Mr. Robinson: We are open for discussion at this point. On Item 7. And there had been some wordage of a possible resolution that had been discussed. Mr. Heintz: Let me just say… So we have three drafts before us. Mine, the
oncur with everything Nan did in hers. Except I had, if you noticed, the only significant difference is that I had three questions instead of one that the committee would deal with. I would wanna stick with the three
sure if Nan was objecting the other two questions I added. Or if she would concur with the other two. Which are in the original version. Thank you.
Mr. Yoshimoto: So. Board members actually, before we get into the substance of
the resolutions, it might be a good idea if we have an executive session so we can talk about the legalities of…the legal issues. Mr. Wiseman: Yes, indeed.
Mr. Heintz: Okay. Mr. Robinson: Is there a motion for executive session?
Mr. Wiseman: Yeah, I move for executive session.
Mr. Robinson: Is there a second? Mr. Heintz: Second.
Ms. Sumner-Mack: Mr. Robinson: Okay so it was moved and seconded. Is there any discussion before we took a vote on going into executive session?
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Ms. Sumner-Mack: Well I just wonder if the subject is so volatile, shall we say. Would it be better to be as transparent as possible? Mr. Wiseman: I understand what McCully is coming from but I would say that
our legal counsel wants to give us some legal concerns about it.
And that has to be in executive session. Ms. Sumner-Mack: Okay.
Mr. Robinson: Okay.
Ms. Sumner-Mack: But I wanted to bring that up cause I think we should be sensitive to that.
Mr. Wiseman: I agree with you.
Mr. Robinson: Okay. All those in favor of executive session say aye. You know
Motion and Vote: Mr. Wiseman moved to go into executive session. Mr. Heintz seconded the motion. All members voted aye. 2:11 p.m. The Board moved into executive session. * * * * 2:58 p.m. The Board returned into regular session. Mr. Robinson: Then we re still back on discussion regarding drafting a resolution.
Mr. Wiseman: Mr. Chairman, I make a motion to defer any further action in this matter, pending inquiry. Mr. Robinson: Pending inquiry?
Mr. Wiseman: Pending further inquiry. Mr. Robinson: Further inquiry.
Mr. Heintz: From an independent source right?
Ms. Sumner-Mack: Requesting… Mr. Yoshimoto: Special counsel.
Mr. Robinson: Special counsel.