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HomeMy WebLinkAbout08-12-20 Regular Session MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION Wednesday, August 12, 2020 10:10 a.m. to 3:40 p.m. Hawaii County Building 25 Aupuni Street County Council Chambers Hilo, Hawaii 96720 Members and Staff Present: Rick Robinson, Chair David Wiseman, Vice Chair Nan Sumner -Mack, Member Lawrence L. Heintz, Member Denise Nakanishi, Member J Yoshimoto, Deputy Corporation Counsel Maria Pagala, Secretary 1. CALL TO ORDER (10:10 a.m.) Mr. Robinson: Okay, calling to order the Board of Ethics meeting, Wednesday, August 12 at 10:10. We're a little late today, but these are extraordinary times that we have to comply. So, I hope you don't mind. Before we go to statements from the public, I'd like to read a statement that has ground rules for the testimonies today. Testifiers will be taken in the order of when the registration was received. The meeting monitor will call each testifier's name and ask them to speak. Once it's confirmed that audio is functioning, the monitor will announce the start of your time. Those wishing to testify will be allowed three minutes to make their statement. When there are thirty seconds remaining, a chime ... there it is....that chime will sound, at which time testifiers should summarize their statements. The second chime will sound at the end of the three minutes at which time the Chair will provide instructions. At the end of each statement, the testifier's mic will be muted and the monitor will move on to the next speaker. If the audio fails to come through, the monitor will move on to the next speaker and your name will be called again after the last testifier. In regards to the agenda, and the different items we have on the agenda today, I wanted to add that three of these items are closed hearings and those will be collected and grouped at the last on the agenda. So we can get ... to do a closed hearing is a little bit more steps involved. And so we will do those, the last on the agenda. So if I may. The next item is statements form the public. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:13 a.m.) 1 Mr. Robinson: And I think our public testimony, I have a list. The first via WebEx is Michael Last. So Michael? Ms. Aiello: Mr. Last, can you hear us? Mr. Last can you hear us? Please say something. Mr. Last: Yes, I can. Ms. Aiello: Your time starts now. Mr. Last: Okay, my comment is in regard to the Mauna Kea lack of enforcement. I'd like to point out that almost 20 years ago, I was subject to arrest by the Department of Land and Resources. Let me make it quite clear, the Department of Land and Resources is not under the County's jurisdiction. It is the State Department. So with that said, I'd like to say that at the pier, it's Kailua-Kona Pier, I was waiting for my brother and his family. I was carrying three signs. First sign with only two words on each sign. First sign said cock fights. The second sign said lottery tickets and the third sign said nude beaches. I did not interact with anybody in any of these ... signs that I had. People would come up to me and say ... oh where can I go to the nude beaches ... my reply was I'm sorry I cannot help you. And I did this in all three cases. And what I want to say is that the DLNR, the DOCARE Department of Conservation and Resource Enforcement, they arrested me and cited me. And I thought that was totally inappropriate. I had to go to court, if thrown out, but yet, the officers insisted I was to be charged with disturbing the peace. And that's all I have to say, as far as this. It affected me, why doesn't same level of effectiveness are enforced on the Mauna Kea protestors? Thank you very much. Mr. Robinson: Thank you Mr. Last. The next public testimony is from Jerome Warren. Ms. Aiello: Chair, Mr. Warren did not join the meeting. Mr. Robinson: Alright, Mr. Warren did not join the meeting. Okay. The next testifier is Noenoe Wilson -Wong. Ms. Aiello: Dr. Wong -Wilson, can you hear us? Ms. Wong -Wilson: Yes. I'm here. Thank you. Ms. Aiello: Okay, your time starts now. Thank you very much. 2 Ms. Wong -Wilson: Yes thank you for this opportunity to provide testimony. I have provided written testimony as well. But I want you to note that my written testimony based on the title only of the petition 2020-04 and that is because when I called for a copy of the petition, so we would understand, public could understand what the issue was. I was told that it was not available, I did receive it finally at nine o'clock this morning. So I have, two things to say. One is, I don't believe that your commission has provided ample public notice to give the public an opportunity to actually testify on the items before you. I think that is clearly unethical and I'm not sure, I don't believe it was a clerical mistake. I believe that was by someone's order or a procedure. So I believe that, that issue should not taken up today. You should agendize it and make sure that it gets out to the public. Secondly, I want to point out, that because I've only had less than an hour to review what appears to be thirteen pages, certainly not ample to review the legal... legalese that is included in this document and the previous speaker had mentioned it as well. I don't believe without even understanding all of the appoints of the complaint. That the Department of Land and Natural Resources or Hawaiian Home Lands comes under the purview of this County so it baffles me what I ... what we public have to constantly be on alert to be able to testify for things like this which just doesn't make sense. I don't see it as being within your purview. So that's my comments for today and thank you. Mr. Robinson: Okay, thank you very much. You'll still be joining the meeting on the WebEx right? Ms. Wilson -Wong: Yes, I'm going to remain for your discussion if you have one. Mr. Robinson: Okay. Next is Nawahine Kaho`opi`i. Has camera and mic. Did she sign in? Ms. Aiello: Mr. Chair, I do not see her on the list. I do not see that participant on the list. Mr. Wiseman: Mr. Chairman, I have a comment to make with respect to her last statement. Mr. Robinson: Go ahead. Mr. Wiseman: Yes. Ma'am, by the Board of Ethics is very consistent with issuing it's public notices of hearings. The very competent staff we have assure that that's done meticulously. And in that notice, the petitions that are to be considered at the hearing are listed as well as a notice that any member of the public, who has a concern about it can come and review the petitions. So the notice is there. I just want to make that very clear. Mr. Robinson: Thank you Mr. Wiseman. Okay. Is there any other public testimony? Ms. Aiello: That's the last person on our list Mr. Chairman. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF FEBRUARY 28, 2020. (10:20 a.m.) Mr. Robinson: Okay. Thank you. All right the next item is the approval of the regular session minutes of February 29th, 2020. Has everyone had a chance to review those? Mr. Wiseman: I have. I make a motion to approve the minutes and along with my motion I'd like to offer a note of commendation to staff who prepares this more than 67 pages of transcript... more than 40 pages which involve the numerous testimony from the public. A very detailed testimony and the minutes were transcribed without any error. So I'd like to commend the staff of the Board of Ethics, in particular, Maria. Mr. Robinson: Absolutely. Is there a second? Okay it's been moved by Mr. Wiseman and seconded by Larry that we approve the minutes of February 281h. This is not the executive session minutes, but the regular session minutes. Is there any further discussion? Other than to note that Maria does an excellent job coordinating all of this. If not, all those in favor say aye. Contrary minded. Alright. Motion and Vote: Mr. Wiseman moved to approve the February 28, 2020 minutes. Mr. Heintz seconded the motion. All members voted aye. 4. UNFINISHED BUSINESS (10:23 a.m.) a. Petition 2019-02: Decision making in petition alleging that a County officer or employee and the Hawai'i County Board of Ethics is in violation of Sections 2-83 (a)(b)(c) (Fair treatment) of the Hawaii County Code. Mr. Robinson: We have one, two, three, four, five petitions today. And three of those petitions are for closed hearings. So what I would like to do and those are in new business and unfinished business. So what I'd like to do is do the first two petitions that are not closed hearings and then when we close a hearing, we're gonna ask everyone to leave. Then we'll do the last three petitions. If that is okay with everyone. So the first petition that we have is petition 4 2019-02. And that's from Mr. Tucker. And I think J and I have to recuse ourselves. So with that I'll... Mr. Wiseman: Mr. Chairman, as I recall, at the last hearing Mr. Tucker finished his testimony, we finished and we it was to be taken under advisement. So that's ready for decision, discussion and I don't know if that's to be in executive session or not. I defer to counsel. Mr. Mural: Chair Robinson? Mr. Robinson: Yes. Mr. Murai: This is a special Deputy Corporation Counsel Gary Murai. Mr. Robinson: Correct. Mr. Murai: Just want to note my presence. And Board Member Wiseman is correct. When we left off on February 28th, which seems like forever ago. We concluded the hearing of course. Mr. Chair, you had a conflict. Board Member Wiseman acted as Chair for that meeting. My recollection is that everything was for that matter was held in ... I believe it was open session ... so what we're going to do figuratively is you know Judge Wiseman will be the Chair. Mr. Robinson: Right. Mr. Murai: Mr. Yoshimoto and I will figuratively change seats and acting Chair Wiseman will liberation and the decision making on the matter. I do note that the record was closed at the February 281h hearing, so there's no other evidence or argument to be heard. The only thing left is for the Board to consider a record and render it's decision. Mr. Robinson: Correct, so I'll step out of the way. Mr. Wiseman. Mr. Wiseman: Yes, thank you. Mr. Murai, it's a ... is it my position correct that we would discuss this decision in executive session. Mr. Murai: That's your choice. You know, the Board has the option of deliberating in a closed session. Mr. Wiseman: Yes and I would entertain a motion to deliberate this decision in closed session. Mr. Murai: Now this question is for the Board's secretary. Maria, do we have a separate link for a closed session on this matter? 9 Mr. Wiseman: It would be executive session. I'm preferring in executive session to deliberate and come out with decision. Mr. Mural: Not to split hairs, but the Board may exercise it's adjudicatory functions in a closed session. But executive session is a kind of a term of art that has very specific reasons for going into executive, one of which is to consult with the counsel. Mr. Wiseman: Right. Mr. Murai: To do things like evaluate the performance of employees... That sort of thing. I don't mean to split hairs with you but we could close the meeting for deliberation. This should be different than an executive session. All the... Mr. Wiseman: Well whichever way you perceive is fine with me. Mr. Murai: Functionally, they're the same. Mr. Wiseman: So are we going to... Do we want to do that now in a closed session? Ms. Aiello: Pardon me, this is Jeanette, I'm helping the Board of Ethics with the technical things about the meeting. My recommendation to be ... would be ... if we're going into an additional executive session that we hadn't planned for, kinda table this matter and take it up during the executive session that's already been placed on the agenda with the other items. And then take the vote after that executive session is pau. Mr. Murai: Mr. Chair. I think that's a good suggestion. Mr. Wiseman: Yes, I agree. So let's do that. Okay, this matter will be tabled and we'll address during the executive session. Mr. Murai: Okay so I'll step aside and you can turn the gavel back over to Chair. Mr. Wiseman: Rick, Mr. Chairman. It's all yours. Mr. Tucker: And what does later mean? Mr. Robinson: Mr. Tucker, what we'll do is we've moved the other items over to closed session to the ... towards the end of the agenda. And the only thing left for your matter is a deliberation as to render a 2 decision. And so the action there was to deliberate this in a closed session... executive session. And so what we'll do is... Mr. Tucker: So my presence here is moot? Mr. Robinson: I'm sorry but yes. It would be now and all of the evidence would have been presented previously. And so the only thing remaining for the Board is to deliberate and so then the action was there was to deliberate in executive session. Mr. Tucker: How convenient. Mr. Robinson: Which I apologize for. Mr. Tucker: Okay, well I have some decisions I'll be making too. But you all proceed and go ahead and make yours and then I'll make mine. Mr. Robinson: Okay. Mr. Tucker: So we're finished? Mr. Robinson: Yes. Sorry. Mr. Tucker: Okay I would like to make a brief comment that I would also like to commend Maria for her work over the years as I've observed her. She's quite competent. Mr. Robinson: We're blessed with Maria. Mr. Tucker: Okay. Thank you. Mr. Robinson: Alright. Thank you Mr. Tucker. Ms. Sumner -Mack: That's Mr. Tucker, right? Mr. Robinson: Yes. * * * * *Continued at 3:34 p.m.* * * * * Mr. Robinson: Okay, we're gonna go back into regular session. The next item on the agenda I will call which I have to recuse myself. J and I both. But that's Petition 2019-02. And Mr. Wiseman, if you could? Mr. Wiseman: Now what's the name on this petition? Mr. Robinson: 2019-02. Page 1. It's on the first page. 7 Mr. Wiseman: Like you said, there's so much paperwork here. Mr. Robinson: I know. Mr. Wiseman: Without a secretary which I've had for forty years. I'm sort of at a loss sometimes. So that's 2019-02. Is that it? Mr. Robinson: Correct. Ms. Aiello: Mr. Wiseman, the motion was made by Larry and seconded by Nan to... Mr. Wiseman: Is this the case that was ... we moved to continue ... is that right? Ms. Aiello: No. It's not. Can I say what it was? Mr. Wiseman: Yes. Ms. Aiello: To decline with advisory opinion explanation. It was that first one we had this morning when J and the Chairman left the room and you assumed the Chair. Ms. Sumner -Mack: I cannot hear. Mr. Wiseman: And this was the one where Mr. Murai is gonna write... Ms. Aiello: Right. Mr. Wiseman: Decline the petition and write an advisory opinion? Ms. Aiello: Correct. Mr. Wiseman: I'm sorry ... and write an explanatory opinion. Is that right? Ms. Aiello: That is correct. And Larry made the motion and Nan seconded it so all we have to do is vote. Mr. Wiseman: Okay. We're voting on the motion... Can you repeat the motion, please Larry? Mr. Heintz: To decline and give a reason. That was exactly the motion. Ms. Sumner -Mack: What was the motion again? 8 Mr. Heintz: We're declining consideration of the ... of mister's.... case. Mr. Wiseman: Yeah. Alright. Motion was made to decline consideration and counsel will write the order declining and with the explanation therefore. So all in favor say aye. Any opposed. Motion passed. Mr. Robinson: Okay. Mr. Wiseman: I'll switch the Chair over to Chairman. Mr. Robinson: Thank you. Motion and Vote: Mr. Heintz moved to dismiss the petition with an explanatory opinion. Ms. Sumner -Mack seconded the motion. Two members voted aye. Member Nakanishi abstained. 5. NEW BUSINESS (10:30 a.m.) b. Petition 2020-04: Initial review of a complaint regarding the lack of enforcement and/or unequal enforcement of state laws at the Thirty Meter Telescope protest encampment at Mauna Kea Access Road. (10:30 a.m.) Mr. Robinson: The next item on the agenda that is not a closed hearing. Let's see. Mr. Jung, that's a closed hearing. Ms. Demoruelle, that's a closed hearing. Gomes and Azevedo, that's a closed hearing. The next one is Petition 2020-04. And that is Lisa Malakaua. Ms. Malakaua: Okay. Mr. Robinson: Hang on a second. We got so much work here, I wanna get your paperwork out. Ms. Malakaua: Alright. And before we get started, whatever the outcome is here today, thank you. I know you guys had a really difficult decision to make and I just want you to know whatever the outcome is, you're not our enemy. We know you've been here for us. So thank you. I just want to say that before we get started while you're playing around getting your papers. Mr. Robinson: Okay I think this is the right one. Okay Ms. Malakaua. Please go ahead. Ms. Malakaua: Thank you so much. Mr. Robinson: And you can take your mask off, it's fine. Ms. Malakaua: Thank you. Well the protesting and the writing occurring around our nation clearly demonstrates that it's time for a new and improved system. Designed to remove social and racial inequalities, political corruption and a few affluent wanted to control humanity by removing as farther away from our natural and moral rights. Elector power and lively hoods. Our complaint was very simple. The County and State have not impartially enforced their own laws. We have submitted to this Board various testimonies. Photos, videos and articles in support of our claim. And our newest testimony only further supports it. The protest camp is illegal regardless of who owns the road. Because permits were never issues. And why is it that the State and County are able to enforce these same laws everywhere else for the same thing but not in this situation? We have also addressed these same concerns with DHHL and DLNR, pleading with them to enforce the law but to no avail. We hope that the Board of Ethics sees the State and County's response for what it is. Turning a blind eye to an illegitimate act of defiance for the rule of law. The allegations we have brought forth are very serious. And for our elected officials to hope that this conflict will just all go away. It not only reckless and dangerous, but unethical. If the County and State of Hawaii are unable to fairly enforce the law, then we cease to have a functioning government that can safeguard our Constitutional Rights and therefore should be placed under a Federal mandate until they are about to properly govern themselves. And elected officials who disregard their sworn responsibilities and undermine the Constitution by condoning illegal activity should be held accountable. The people have awoken and they are now starting to realize what's going on and where we are all heading, so they are retaliating because leadership is no longer in touch with their communities and no longer a voice for the people. However, those that are abusing their power gained leverage and control over others or inflicting economic damage to force political change eventually loses their currency when the people are no longer in fear of them or giving into their unconstitutional demands. What are the overall lessons here? Well, that nothing good ever comes from dancing with the devil. And the patriotic Americans will never forfeit their rights voluntarily. Mahalo. Mr. Robinson: Can I just. I read your, what you submitted and I can see that a lot of this addresses DLNR and DHHL and enforcement there. But from a County perspective, with us being just the County Board of Ethics, I didn't see where you referred to any particular section of the County Ethics Code that has been violated here. And so I didn't know which way to address this back to you. 10 Ms. Malakaua: Okay. Well we also have other witnesses that are going to be coming before you today that will be explaining exactly what those violations are. So if you'll give them an opportunity to do so. That would help us all a great deal. Mr. Robinson: Okay. Ms. Malakaua: I just believe that it doesn't matter whether you're County, State or the Federal Government. The law is the law. We uphold the law. This is America and we honor a President. And to ask any of us to participate in actions of treason is unconstitutional in itself. So whether you're DHHL, whether you're part of the DLNR or any part of any County, State or Federal Government, the rules must be upheld equally and fairly. Look where we are at now. We are at the beginning of a war and we need to wake up because the people are speaking and they're not liking what's going on out there. So to be fair, this is on every level. Mr. Robinson: Right, right. So there's a County Board of Ethics. There's a State Board of Ethics and there's even a Federal Board of Ethics. Ms. Malakaua: Correct. Mr. Robinson: Yeah for Federal violations. So that was my thing in reading this. You didn't point to any particular portion of the County Code of Ethics and I just didn't not how address that. Ms. Malakaua: Okay. Mr. Heintz: I just have a question. Ms. Malakaua: Sure. Mr. Robinson: Go ahead Mr. Heintz. Mr. Heintz: Have you made a petition to the State Board of Ethics as well? Ms. Malakaua: Actually, I had attempted to do so but I was told that they represented the State employees so it was a conflict of interest. I do believe this was brought up in the last meeting and that I was not given proper information. So yes, we did address this. I've also even gone as far as going to the U. S. Department of Justice. So the fact that we're not getting any kind of closure here and the people aren't hearing. Even to this stage and to this point, is quite concerning. Because what's going on all over our nation will eventually end up here in Hawaii if we start being selective on 11 how we set our laws. We can't be prejudice and we cannot be biased. It's that simple. And all patriotic Americans will not tolerate their rights just being taken from them at the convenience of a few out there. It's just not gonna happen. Mr. Heintz: So to clarify. So you have petitioned to the State Board of Ethics as well. Ms. Malakaua: Once again, I did not petition them because I was blocked at doing so when I called to ask what it was that they needed in order to get something started on their end. Mr. Heintz: Okay. Mr. Wiseman: Mr. Chairman. Mr. Robinson: Yes, Mr. Wiseman. Mr. Wiseman: Yeah. First off, my compliments on your well prepared informative, detailed submission to the Board. Very well done. I think I mentioned that the last hearing. With respect to the Ethics Commission which governs our State employees. They're non- partisan. So a phone call sometimes to a staff member may give you the wrong information but, in reality, they can entertain any petition and it is not partisan. They are all from different walks of life there. Including the Chief Justice, who chairs the commission. And I'm sure she called his secretary if she would give you the right information. Are you aware of...? I'm sure you are. Of the lawsuit that's been filed, with respect to jurisdictions in this matter. Ms. Malakaua: Yes. I am. Mr. Wiseman: Alright. Do you know the status of that or is it still pending. Ms. Malakaua: It's still pending. But there was a hearing. But yes, there was supposed to be a decision made with... Mr. Wiseman: I see. Ms. Malakaua: Yeah. Mr. Wiseman: Okay. Thank you. That's all I have, Mr. Chairman. Ms. Malakaua: Thank you. Mr. Robinson: Thank you. 12 Ms. Sumner -Mack: May I ask again, so these additional witnesses... The witnesses 13 we're about to hear from ... will be addressing specifics as to the County Board of Ethics? Ms. Malakaua: Yes, I do believe so. Thayne Currie is gonna address that portion. Mr. Robinson: Okay. Ms. Sumner -Mack: Okay. Thank you. Just wanted to clarify. Ms. Malakaua: Thank you. Mr. Robinson: Alright. Well would you like to call your Mr. Currie as your witness? Ms. Malakaua: Mr. Currie, yes. Thayne Currie. And he will be Zoom video, yeah? Mr. Robinson: WebEx. Ms. Malakaua: Now do I leave or... Mr. Robinson: No, you stay. Ms. Malakaua: Stay. Okay. Ms. Aiello: Mr. Currie, can you hear us? Mr. Currie: Yes I can. Ms. Aiello: Please go ahead. Mr. Yoshimoto: One moment. Lisa. Just to make sure. I know you indicated in the beginning that you wanted this to bean open hearing. I just want to make sure that that's true. Mr. Robinson: Yeah. Mr. Yoshimoto: Okay. Just making sure. Ms. Malakaua: Thank you Ms. Sumner -Mack: Just a matter of courtesy. I want to ask. Now some of us are wearing masks here, would you feel more comfortable if we all wore our masks. I mean I have mine. I don't mind wearing it. 13 Ms. Malakaua: I think we're all distanced enough. Mr. Robinson: Mr. Currie. Mr. Currie: Yes. Mr. Robinson: Would you please go ahead. Mr. Currie: Sure. This is my testimony. My name is Thayne Currie. I currently have a dual appointments at the NASA Ames Research Center and also has an affiliated researcher at the Subaru Telescope on the Big Island. To be very clear, Mauna Kea is personally very special to me. Requires care when I believe it's resources should be protected. And I also believe very strongly in due process and equality of the law for everybody. And It's for these reasons, I support Lisa Malakaua and Mike Nathaniel's effort to show the truth which is that the State and County of Hawaii have committed severe ethics violations by allowing an unpermitted environment damaging and habitually trash-shrewn TMT protest site to persist. And also by not enforcing TMT safe legal access to it's construction site even though they enforced they law at different locations or on the same plot of land for different issues. So Attachment A which you should have, demonstrates in a crystal clear way, why the campsite is illegal, irrespective of the ownership of the road. [Inaudible] the County and State are in ethical violation by not enforcing the law. It took many community members who personally petitioned their elected officials and other orders of the State and County to enforce the law. Do something. So Lisa and Mike did this with DLNR and DHHL. Attachment B recounts my effort with the Mayor to do this, the meeting. Specifically I communicated to the Mayor that the non -enforcement of the law was doing tangible damage to the community. And how it undermines their role off for everybody. In both cases with the State and with the County, no action was taken. And finally I think I wanted to underscore that the lack of enforcement or non -enforcement of the law with respect to protest activities on Mauna Kea is a chronic problem. Not an isolated incident, and it dates back years. The many examples in Attachment C gives a vivid example. Where someone disinterred remains in Ka'u and placed the bones in an ahu on the TMT site in effort to falsely demonstrate that Thirty Meter Telescope was built on a gravesite. This effort was performed with a clear knowledge and tacit approval of dozens of protestors. Aside from being a clear violation of the State law, this act was denounced by experts as an act of cultural terrorism as the attachment demonstrates. 14 Unfortunately though, the State's normally never file charges against this person but even stymied efforts of the public to know about criminal acts. So summary, the evidence, I believe supports Ms. Malakaua's and Mr. Nathaniel's contention of ethic's violation by the County and State. So I think the question for the Board is ... why is it particularly important with this Board to find the State and or the County in violation of ethical principles. I think it's very simple. In a couple months, we'll have a new Mayor. We'll have a new County Council members. We'll have new State elected officials. Each one of them will take an oath to uphold the law. If we don't, the State and County's accountable for past transgressions, kind of hard to see how that oath will be taken seriously. So I'd be happy to answer any questions you have. Mr. Robinson: Okay, Board Members, anyone have any questions for Mr. Currie? Hearing none. Ms. Nakanishi: Mr. Currie, I have a few questions. I'm sorry, I have a question. Mr. Robinson: Who is this? Ms. Nakanishi: This is Denise Nakanishi. I am a new member. Mr. Robinson: I don't see you up there on the thing Denise. Ms. Nakanishi: Here I am. Mr. Robinson: Oh, there you are. Okay, go ahead. Ms. Nakanishi: I was just and not maybe specifically [inaudible] but I am just curious if anybody knows who is maintaining that road and historically maintaining the road? Ms. Sumner -Mack: I didn't hear that. Ms. Malakaua: What was the question? Mr. Robinson: Who's maintaining the road? Who maintains the Road? Mr. Currie: My understanding, Department of Transportation. Ms. Malakaua: Department of Transportation. Mr. Heintz: Department of Transportation. I guess they... The Department of Transportation is State but the Governor requested that the Mayor be involved and to take... To participate in trying to deal with this 15 issue. And also. And he agreed to and he has a proposal and all sorts of things and had been... And also the County Prosecuting Attorney Mitch Roth, the cases were in his jurisdiction and so we have both the State and the County. And so we're concerned about the County part and that's why we had questions and inquiries. So I think that is appropriate but it's both jurisdictions and that's why I asked if you'd also made a request with the State Board of Ethics. Ms. Malakaua: Mmm hmm. Mr. Heintz: We have... I think Thayne's concerns as well. Is we have the Mayor's Office and the County Prosecutors Office and they are under our jurisdiction. And they are involved and have been. Ms. Malakaua: Correct. Mr. Currie: And just also to clarify, I gave several examples of enforcement on the same TMK map. I'm sorry TMK regions for the protest site and then elsewhere. And one of those was a removable library. And there had been other law enforcement actions there too. ACPD was involved in some way with those actions. So there was County involvements with law enforcement. Or they supposed to be. And again, you know just to really reiterate and [inaudible]. What I believe and what Ms. Malakaua and Mr. Nathaniel believe are ethics violations in the State and County are case regardless of who owns the road. Now if you were to include ... if we're going to assume that the road is owned by the State and run by the Department of Transportation. Then yeah. [Inaudible] blocking of the road itself is an initial violation. Ms. Nakanishi: The reason for my question is not so much the ownership cause that's a bigger [inaudible] than we or as I understand it. But more so, if we've assumed the duty that ... looks like the County has assumed the duty to help enforce the laws on that road so. Mr. Currie: Yeah. Ms. Nakanishi: That was the reason for my question. Mr. Currie: Yeah. Well not only road but also the specific plots of land. Ms. Nakanishi: Yeah. Mr. Currie: You know. And the reasons why action was taken against some activities on the lands for [inaudible]. First is they do not have the permission of the land owner. Which in most cases was DHHL. 16 And the other case is that ... those lands are zoned as restrictive or protected Conservation District Lands. This is the same designation as the observatories. The Observatories that required an EIS, a Conservation District permit and then TMT's went through a decade of legal ramble. In this particular case, you had a bus cited, you had a car leaking oil into the ground. You had numerous tents all on these same plots of land without any permits. Mr. Robinson: You know Mr. Currie... Does anyone else have any questions for Mr. Currie? You know Mr. Currie, in the course of your testimony, you seem to imply that this Board is not taking action because we have a new mayor coming and it's just kick the can down the road. And I took exception to that. The reason I take exception to that is this Board has specifically asked for... In fact, it's going to be a little bit later in our testimony today. The Corp. Counsel to retain special counsel to investigate this matter. And so when you say in your testimony that we're kicking the can down the road, that's not correct. And either you misstated or I did not understand correctly what you had stated. But second, I don't want to get into a debate. And second item with you, is you referred to an Exhibit A, in which I'm assuming you referenced certain sections of the County Code, Ethics Code that were being violated in the course of this matter. And I didn't see that. So I mean I looked through all the material and I didn't see it. So can you maybe tell us which sections of the County Code have been violated in this matter? Mr. Currie: Sure. Okay so. Sure. Is it okay to answer both questions? Mr. Robinson: I'd prefer you deal with the latter one. I think we've already finished with the first one. Mr. Currie: Sure, sure. Okay. With the latter one, I think the Attachment was mostly focused on the violations of the law, not on the Ethics Code. But if you want the reference to ethics code, I thing one of the closer things that may be applicable would be Section 2-83 (a) and (b) which focuses on fair treatment. You know all that should be treated as public trust. And it sort of broadly speaking beyond any particular letter of the code. Sort of undergirding all Ethics Code, I think would be due process and the 14`" Amendment, equal protection of the law. But also to the first point. What you were saying is not what I was intending on and I apologize if I may have been [inaudible]. I wasn't trying to say that the Board was kicking it down the road. It'd be far from it. I appreciate to the Board, it's taking this under advisement. What I was saying is that, even if you know, why is ... from sort of a moral stand point ... what do I 17 personally believe is important for the Board to take action. That's all I was saying. I apologize if there was a ... sort of misunderstanding. Mr. Robinson: Okay. Anything else for Mr. Currie? Mr. Wiseman: Yes, I just have a general statement Mr. Chairman. Mr. Robinson: Yes. Mr. Wiseman: From time to time, we see misconceptions about what the Board of Ethics is. What the function is and direction is and mandate is. Not first off, we're all pro bono members here. And secondly, the Board of Ethics is not a... The misconception I see among many members of the public, is that, we are some type of entity that is established to ... for enforcement or regulatory or investigation purposes. And we are not. The fair treatment referred to ... fair is a fact situation. And those facts have to be determined by an entity which in most cases, is not the board of semantics. I just want to put that out there. We are here to look at ethical violations in many things, it's not just a wide open when it comes to ethics violations. It's a very confined field. Thank you Mr. Chairman. Mr. Heintz: I'd like to make a comment, Mr. Chairman. Mr. Robinson: Please. Mr. Heintz: I disagree with my colleague Mr. Wiseman on this point. The Code of Ethics, I mean, there is a problem here about whether our responsibility is simply to deal with specific items within the code. But the Code of Ethics talks about... Now let me read from it. Section 14-1(b). Elected and appointed officers and employees shall demonstrate a highest standard of ethical conduct so that the public may have trust and confidence in the integrity of the government. And that's the enactment of the policy for the Code of Ethics. And so, Mr. Currie's concern about the County officers or not keeping their oath of office, it's this. It's in also the question of fair treatment and also under the Code of Ethics. It specifically says in Section 2-80. That this article shall be liberally construed to promote the highest standards of ethical conduct. Now so, there may not be specific issues that the Mayor or the County Prosecutor have violated, but there are these general concerns. And my own feeling about this ... and I have expressed this view on this Board ... is that an Ethics Board and Ethics Commission has responsibilities wider than the specific items in the code. 18 Mr. Robinson: And just following up on that. Ms. Malakaua... Ms. Malakaua: Like King Kalakaua. Mr. Robinson: What you're have filed your appeal on has basically the reason that we're gonna be hearing from Corp. Counsel a little bit later today about our request for a special counsel to do an investigation of this matter. So when I read your petition, I thought this is following along exactly on the petition that we had previously that was initiated by our Board. And I should say petition, but a discussion that was... Ms. Malakaua: Yeah. Mr. Robinson: You know, by our Board and consequently why we've asked Mr. Kamelamela to come talk to us about the retention of special counsel for an investigation of this matter. Dealing with just the items that you've pointed out in your petition. Ms. Malakaua: Appreciate that. Mr. Robinson: Yeah. So, having your petition and then at the same time, the Board going ahead with what it's doing. I can only say that your petition ... we can't really make a decision until we get the special counsel and do the investigation. And come up with parameters. Ms. Malakaua: I certainly understand that. Take your time. No one's in a rush. Mr. Robinson: Okay. Just understand that... I think maybe the Chair would entertain that we hold your petition at abeyance pending completion of our request for special counsel with Mr. Kamelamela. Ms. Malakaua: Certainly. Well I appreciate your time and your efforts and your service, cause I know this was not an easy task. So again, thank you. Whatever the outcome is, we appreciate you and you guys definitely are not the enemy. Mr. Robinson: Yeah. Ms. Malakaua: So thank you. Mr. Robinson: Yeah. Ms. Malakaua: Okay, are we through here? 19 Mr. Robinson: Well no. We haven't taken action on your petition yet. Ms. Malakaua: Oh we have one more witness. Mr. Robinson: Oh you have another witness. Ms. Malakaua: Nathaniel please. Mr. Robinson: We'd like to hear your other witness. Ms. Malakaua: All right. One moment. Mr. Robinson: Would you state your name for the record? You can take your mask off. Mr. Nathaniel: Michael Nathaniel is my name. Mr. Robinson: Michael Nathaniel, you've been here before? Thank you for your service. I see you're a veteran. Mr. Nathaniel: Thank you for the Board's due diligence to this matter as well as allowing us to present our testimonies. As you already know, I am a Military Vet that feels truly honored to have served this country. I was encouraged by my loving grandfather, George Manoa, Sr. to go into this Military and make something out of my life. And in this life, I was able to experience the world and life lessons that came along with it. So as a veteran, my oath will never expire. This is part of the reason why I'm so compelled to be included in this awesome duty today. We have laws in place for a purpose. They are to protect our general safety and to protect citizens against abuse of power, harassment and retaliation. The Constitution that I also defended, mentions nothing about having to be a particular race or color, in order to benefit from these laws. Nor was it created to be used as a discriminatory or retaliatory tool to be used against our right to express oneself. The rule of law is a principal under which all persons, institutions, and entities are held accountable. And if our State and County officials find it difficult to be impartial when acting out their duties, then they have no business being there. This is not the wild, wild, west or some third world country, this is the United States of America. As evident in this case, the rule of law was only applied and enforced when it was convenient and/or not convenient for elected officials. Our leaders also failed to make a hard decision to provide for a clear and safe passage way on a public road. Instead they allowed lawlessness for one group of people while penalizing the rest. So 20 they must be held accountable for their unethical and dishonorable conduct. I serve my country for many reasons. One of which was to defend the right and voice of any protestor, just as long as the laws were still upheld fairly to everyone else. Without justice, there will be no peace. I want to thank our fellow abiding citizens who stood up and expressed a need to right the wrongs done here. To our State and County officials at the highest level, like me you took an oath that is supposed to represent truth, faith, and allegiance. So please start honoring that. Mahalo. Mr. Robinson: Thank you. I'm also a veteran, so thank you for your service. Mr. Nathaniel: Thank you sir. Mr. Robinson: Does any Board Members have any questions for Mr. Nathaniel? Ms. Sumner -Mack: Excuse me, I don't know if this is appropriate to your testimony, specifically. But, there was a statement in materials your group submitted to us and I read carefully. It said that among the institutions that became part of the blockage of the road was something that was ... that said it was a branch of the university. I've forgotten the name of it. But they were offering classes with credit at the university or the community college. And I wonder if you realize that that was going on or you knew that had happened or can confirm that report. Mr. Nathaniel: While the road was blocked, ma'am? Ms. Sumner -Mack: Yes. That was called the University of... I forgot what it was called, Pu`u... My Hawaiian is not... It had a Hawaiian name and they claimed to be giving credit at the University for participating in the blockage of the sit in. So I just wondered if you knew and had heard that and could confirm that. Mr. Nathaniel: Now is that right to hold class right in the middle of a public road. Is that ethical? Ms. Sumner -Mack: I don't know where it was meeting. There was a group shelter of some kind and perhaps they had a classes in there. Mr. Nathaniel: Tents, people blocking the road, a public road. Mr. Robinson: Yes Ms. Malakaua. Ms. Sumner -Mack: I'm sorry. 21 Ms. Malakaua: The only thing that I recall that was being taught up there was some of the Hawaiian culture by the kia`i. But as far as having classes or having people that are basically supporting these organization and these protesting, I think that what they're basically referring to is the organizations meeting by institutions is like basically DLNR and DHHL. You know them being you know basically... And OHA. OHA was very much in part of this. And I think that there was some question even there that OHA was able to support those that protested it against the TMT. They supported all of their beneficiaries but where were they to support the pro TMT beneficiaries. So again, we're looking at another inequality and if this continues, we're all going to have a real problem. And we're just trying to be proactive. And say hey you guys, this is God's country. We all live together. Can't we all just get along? You know. But it has to start with our leadership. Our leadership has failed us and it's apparent by what's going on around the nation right now. We're not the only ones dealing with this obviously. Ms. Sumner -Mack: I apologize that I didn't mark the spot, but I will find it. But I think if we did investigate, that is something we might want to consider investigating. Ms. Malakaua: Certainly, who was supporting this, you know this illegal action? Should very well be looked at. Mr. Robinson: Yeah, if we're able to get our special counsel, we can... Yeah. Ms. Malakaua: That would be wonderful. Well again we appreciate your time and look forward to hearing from you again. Mr. Robinson: Wait but before you leave. So the Chair would entertain a request to hold this petition in abeyance pending our discussion with Mr. Kamelamela and selection of special counsel. Ms. Sumner -Mack: I so move. Mr. Heintz: Second. Mr. Robinson: So moved and seconded that we hold Ms. Malakaua... okay... Kalakaua. Ms. Malakaua: Queen Malakaua is fine. Mr. Robinson: Yeah. Queen... 22 Ms. Malakaua: Queen Malakaua is fine. Mr. Robinson: Oh. Okay, okay. You got promoted. I'm sure he knows. Ms. Malakaua: Yeah, he knows. Mr. Robinson: So we'll hold this in abeyance pending our further discussion with Mr. Kamelamela later today. Any further discussion on that matter? Ms. Malakaua: I don't believe there is. Mr. Robinson: Well I have to ask the Board Members. If not, all those in favor say aye. Contrary minded. Okay we'll hold this in abeyance until we get word as to where we gonna go with our special counsel request. Mr. Yoshimoto: And then so, they'll be notified as far as what for the action, if any the Board will take, right? Mr. Robinson: Correct. Mr. Yoshimoto: Okay. Mr. Robinson: Correct. So we'll keep you informed. Okay. Maria will keep you informed. Mr. Yoshimoto: So Mr. Chairman, for the record, all five members voted in affirmative to make sure. Mr. Robinson: Yes. Mr. Yoshimoto: Okay. Motion and Vote: Ms. Sumner -Mack moved to hold petition in abeyance pending discussion with Corporation Counsel regarding request for special counsel. Mr. Heintz seconded the motion. All members voted aye. Mr. Robinson: Now we go to the closed hearing section. We've dealt with Mr. Tucker. We pushed that to executive session. So we'll deal with Mr. Jung and so we have to close the hearing at this point. So we'll just keep it closed for Mr. Jung, Petition 2019-05, for Demoruelle, Kucharski... WebEx: Sandra Demoruelle has left the meeting. 23 Mr. Robinson: So it will be awhile so we would have to go contact the different petitioners separately because the hearings that are doing closed ... one by one. So how would we do that? Ask them to standby? Mr. Yoshimoto: Mr. Chairman, I recommend that the Board either set a time certain for when we'll reconvene... WebEx: Michael L. Last has left the meeting. Mr. Yoshimoto: For the regular session to see who else wants to join back into the regular session. Or we can contact them if they give us their contact information and let them know. We gotta give them notice as to when we're going to go back in. Mr. Robinson: Okay we will deal with these closed hearings. We will be finished with these by 12 o'clock for to go back into open session. You don't think so? Mr. Yoshimoto: No, it's okay. So that's the minimum time frame. So then at that point you know they can try and re -log back in but we can't guarantee that we'll be done by twelve. But that gives them you know some reasonable notice as to when we would go back in. Right because... Mr. Robinson: So I'm saying 12 o'clock we'd go back into open session. Mr. Yoshimoto: So maybe we can pull the members... Excuse me the people who are viewing this meeting, just to make sure that they understand what the procedures are. Ms. Aiello: Mr. Chairman and Mr. Yoshimoto. Ms. Demoruelle has left the meeting. Mr. Robinson: So Petition 2019-05, that should take us about 10 minutes, you think? No I mean, I'm just saying because within this, each petition, they're closed and so then the other people have to contacted back. So Petition 2019-05, we will say we will be through that by 10, by 11:20 okay. Mr. Murai: Mr. Chair, this is Gary again. I believe that matter is just for review and approval of the draft order so unless there's any significant changes, it should not take longer than a few minutes. 24 Mr. Robinson: Okay. So we'll say we'll be through with that by 11:20 and then we'll start on Petition 2020-01 which you also are involved in Mr. Murai. Mr. Murai: Yes, that's correct. Mr. Robinson: And we'll start on that one at 11:30 Ms. Pagala: Rick, that one is Sandra, she's gonna be separate. Because she's Mr. Wiseman: on the WebEx phone. So we had her separate. Mr. Robinson: What do you mean separate? Petition 2020-02, why don't we start Ms. Aiello: that one at 11:45 Ms. Aiello: This is Jeanette, again, I'm helping with the technical aspects. We have two separate closed meetings scheduled via WebEx. We have to do them separately so in order to function properly today, we have to take Ms. Dem... I don't know the number of that one. Petition 2020-01 separately. So I would recommend that we take that one up first and then all the rest we gonna do in one single session. Or take that one up last and do all the others first. Mr. Robinson: Okay so we'll take Petition 2020-01 up at 12 o'clock okay and we'll take 2020-02 up at 11:30 okay. And then we'll go back to open session at 1:00 o'clock. Okay. This is battlefield commission here, we learn as we go. Mr. Wiseman: I guess I'll cancel my swim today. Mr. Robinson: Okay, at this time we'll go to a closed meeting to deal with Petition 2019-05. Mr. Wiseman: Mr. Chairman, at the outset, I'd like to extend a... Mr. Robinson: Wait just a moment. Ms. Aiello: Ladies and gentleman, we're going to leave this current session. We're going to close it. We're going to turn off the meeting. We're going to log into the executive session meeting that Maria has sent you the credentials for. So it's titled executive session. So that's the one that you're going to be logging into next. And then following that, we're going to log into the closed session that Maria has sent you. And then we'll go back into regular session. Do you understand? 25 Mr. Murai: Okay understood, this is Gary. I'm going to log off now and log onto the closed meeting. Ms. Aiello: Mr. Wiseman, do you understand what we're doing next? Mr. Wiseman: Yes. Ms. Aiello: Okay Ms. Nakanishi, do you understand what we're doing. Ms. Nakanishi: Yes. Ms. Aiello: Okay we're gonna leave the meeting now. Thank you very much. 11:04 a.m. The Board moved into a closed hearing. 3:34 p.m. The Board returned into regular session. d. Review of Gift Disclosure Statement received from the following County officers or employees. 3:37 pm Mr. Robinson: The next item we had, the review of the gift disclosure statements. Does anyone have any issues with the gift disclosure statements that were sent? Mr. Wiseman: Yes I do. I think we discussed this before. Why does someone have to file something? Mr. Robinson: It's just in the code. Anything over a hundred bucks, they have to disclose. Mr. Wiseman: I understand that but if there's two or three that just say no gift and there's one that was filed, didn't say anything. Mr. Robinson: I know. That's what I thought was kind of a waste but. Anyway so, I think as long as we just say review them, nobody has any issues, we need to accept them. Mr. Yoshimoto: Yeah. Mr. Wiseman: Yeah. I don't have any issues. Mr. Robinson: Motion to accept and file. Is there a second? Oh somebody make a motion to accept and file. Mr. Wiseman: I second. 26 Ms. Sumner -Mack: I'll make a motion to accept and file. Mr. Robinson: And there's a second. All those in favor say aye. Motion and Vote: Ms. Sumner -Mack moved to accept and file the gift disclosures. Mr. Wiseman seconded the motion. All members voted aye. 6. VOTING ON EXECUTIVE SESSION MATTERS (3:36 p.m.) a. Review of the executive session minutes of February 28, 2020. Mr. Robinson: Okay. Next item on the agenda is the approval of the ... in executive session we reviewed the executive session minutes from February 28. Does anyone have any...? I guess now we're looking for a motion to approve those executive session minutes. Mr. Heintz: I'll move to approve the minutes. Mr. Robinson: Okay. Is there a second? Ms. Sumner -Mack: Second. Mr. Robinson: Okay moved and seconded. All those in favor say aye. Okay those are done. Motion and Vote: Mr. Heintz moved to approve the executive session minutes. Ms. Sumner -Mack seconded the motion. All members voted aye. c. Review of the closed session minutes of February 28, 2020. Mr. Heintz: There was also a closed. Mr. Robinson: Closed session. So is there a motion to accept the closed session minutes of February 281h Mr. Wiseman: So moved. Ms. Sumner -Mack: Second. Mr. Robinson: Okay. Moved and seconded. All those in favor say aye. Mr. Yoshimoto: Just for the record. So the agenda was a typo. It says February 91h for both of those motions. But just to make clear, it was 281h of February, yeah. Mr. Robinson: February 281h 27 Motion and Vote: Mr. Wiseman moved to approve the closed session minutes. Ms. Sumner -Mack seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Mr. Yoshimoto: And then the confidential disclosures that are listed on the agenda will be reviewed again at the September meeting, we'll hold on until at that time. So they'll be postponed till then. Mr. Robinson: Correct. Mr. Yoshimoto: Okay, I believe that's it. Mr. Robinson: Okay so do we need a motion to adjourn? Ms. Sumner -Mack: I make a motion to adjourn. Mr. Heintz: I second in the motion. Mr. Robinson: All those in favor say aye. Ms. Nakanishi: I hate to make a problem but, what is this one about 2020-03. Mr. Robinson: 2020-03 Ms. Nakanishi: It says 3 a petition number. It was emailed to me yesterday. Mr. Robinson: That one was withdrawn. Ms. Nakanishi: Okay. Mr. Robinson: 2020-03 was withdrawn. It's not on our agenda. Ms. Cook -Lauer: Excuse me Board. Nancy Cook -Lauer here. Whatever happened to your attorney... whether you were hiring an outside attorney to deal with the Mauna Kea parameters of your jurisdiction? That was also on the agenda. Mr. Robinson: Yes it was and we had a presentation by Mr. Kamelamela. And we are now being furnished with that opinion and we'll be reading it and taking it up at our next meeting. Ms. Cook -Lauer: Thank you very much. I appreciate that. 28 Mr. Robinson: Sure. No problem. 7. ANNOUNCEMENTS The next monthly meeting of the Board of Ethics is scheduled for September 9, 2020. 8. ADJOURNMENT (3:40 p.m.) Mr. Wiseman: Okay, I'm signing off Mr. Chairman. Mr. Robinson: Thank you. Mr. Heintz: Goodbye. Mr. Robinson: Meeting's adjourned. Respectfully submitted: ,awu�. P Maria Pagala, Secretary w