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HomeMy WebLinkAbout12-09-20 Regular Session Minutes1 HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, December 9, 2020 10:01 a.m. to 12:27 p.m. Hawai‘i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai‘i 96720 Members and Staff Present: Mr. Robinson:, Chair David Wiseman, Vice Chair Nan Sumner-Mack, Member Lawrence L. Heintz, Member Denise Nakanishi, Member J Yoshimoto, Deputy Corporation Counsel Liza Osorio, Secretary 1. CALL TO ORDER (10:01 a.m.) Mr. Robinson called the meeting to order at 10:01 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS (10:01 a.m.) Mr. Robinson: Are there any statements from the public on agenda items?....Are there any statements from the public on agenda items, other than the ones that we received in the mail? We received numerous correspondence. It’s so many that we’ll just enter them into the record. We don’t need to read them all into the record, I don’t think. But everyone received the correspondence that was sent to us via email…Yes ma’am? Ms. Aiello: Mr. Chairman, I understand that we might have one person signed up to testify that’s on our screen. Sandra Demoruelle. Sandra can you please confirm that you wanted to make testimony this morning? Mr. Robinson: Ms. Demoruelle? Ms. Demoruelle: Yes this is Sandra Demoruelle. I also have Jerome Warren here to give testimony as well. Mr. Robinson: Okay. So anyway, I’m just noting that we received numerous correspondence. None related to your matter Ms. Demoruelle, but mostly related to other items on our agenda. So we’ll provide you 2 now with time to make you statements and we ask that they be limited to three minutes. So, please go ahead. Ms. Demoruelle: Thank you Chairman. I wanna begin again by thanking the Board for considering my citizen complain of the Department of Environmental Management’s Ethical Laws violation of falser sewage spill to avoid State Department of Health enforcement penalties. Although dismissed, it is my hope that it will be an encouragement to Alika DeMello to give accurate descriptions of all sewage spills to the State Department of Health in the future. However today I’d like to provide the complainants view of your proposed new rules. Simply the changes make sense in general and after due consideration I think the Board should adopt them. But new rules will not be an improvement if the Board does not follow them better than you have the current rules. Respectfully, in this regard I bring to your attention, the harm caused to me personally when the Board adopted a kill the messenger (?) in the September meeting which was illegally closed when considering my petition and the Board maintained this attitude when it allowed Director Kucharski to what he called “vent” at the last meeting was an ad hominem attack on me, the messenger. But another example of disregarding the rules, is when you were advised you could immediately move to a hearing without observement of HRS Chapter 91, that requires hearings have proper notice along with other specific rules. I encourage the Board to rely less on the advice of Counsel and instead please read and understand the applicable administrative rules for yourselves. You can do this of course when you’re considering the new rules. So once more, I thank you for your attention to my concerns. Here’s Jerry Warren. Mr. Robinson: Thank you Ms. Demoruelle, I think we heard you very clearly what you had to say and we appreciate your testimony. Now is there someone else with you that wanted to testify as well? Mr. Warren: Yes sir, I’m Jerome Warren here in . Mr. Robinson: Okay Jerome Warren, you’re also on the phone with Ms. Demoruelle correct? Mr. Warren: Yes sir. Mr. Robinson: Okay, go ahead you have three minutes please. Mr. Warren: In regard to the same petition. The Board of Ethics did not follow your own rules when you first allowed Director Kucharski to have 3 a closed hearing. Consequently, I was forced to leave the meeting. I stood in the garage, while my neighbor, Sandra Demoruelle, was being interviewed. You violated her free speech rights because free speech implies the right for her to heard by the public. You censored her. You violated my right to assemble because I could not listen in. This malfeasance destroys the Board’s credibility. It diminishes a citizen’s faith in County government. I lost more faith at your November meeting when Board member Ann Sumner- Mack implied that the State Attorney General Office helps citizens. I called them and found out that they do not. At your November meeting Director Kucharski bragged about his integrity. If he is so proud of his integrity then he would’ve welcomed an open meeting in the beginning. People judge their government not only by what it does, but also by how you do it. Your closed hearing gives you a bad image. This leaves the County vulnerable. Opportunists see Hawai‘i County as easy prey. The costly ongoing wastewater boondoggle in is the result. In summary, the Board of Ethics has exposed the tip of the iceberg. Now it is up to the new mayor to either change course or keep rearranging deck chairs. Mahalo. Mr. Robinson: Thank you very much…Is there any other testimony? Other than the written testimony we received? Ms. Aiello: Not to my knowledge Mr. Chairman. Mr. Robinson: Okay… Mr. Yoshimoto: Is Mr. Currie on the line? Ms. Aiello: Thayne can you hear me? Mr. Currie: Yes I can hear you. Ms. Aiello: Were you queued up to make testimony today? Mr. Currie: Yes I was. I believe so. Mr. Robinson: Are you gonna make verbal testimony, I think you had written correspondence to us as well correct? Mr. Currie: That’s correct. So the verbal testimony would summarize on that and sort of clarify some issues. Mr. Robinson: Okay, so we have your written testimony so you want to summarize that for the Board is that correct? 4 Mr. Currie: That’s correct yes. Mr. Robinson: Okay you have three minutes Mr. Currie, please go ahead. Mr. Currie: Okay so we sent in a document that summarizes our response to testimony by former Mayor Kim, and portions of the core counsel opinion that obliquely refer to the merits of this case. To put it simply, nothing in Mayor Kim’s statement, nor in some of the statements of the core counsel do any damage at all to Petition 2020-04. They fundamentally misconstrue the scope of this investigation. They’re (?) contradicted by the evidence and misapply legal rulings of Hawai‘i State Constitution and U.S. Supreme Court President. For example, one of the key statements, throughout, is that Mayor Kim lacks jurisdiction, within any portion of the Mauna Kea Access Road region of relevance to the TMT protest. That is simply false. We give the reference to that from Article 11 from the Hawai‘i State Constitution which places an affirmative obligation on both the State and County to enforce land use regulations. And the Memorandum of Understanding between the County and DHHL, which reiterates this point, and also explicitly gives law enforcement authorization to the County. Two, the points that added in our response, when we go through the legal filing, so the legal opinion from the Core Counsel, show why it misconstrues precedent. In addition to that, we bring up two additional points. One is that the Mayor effectively tipped off, or agreed to tip off the protestors to tell them in advance of any eminent construction. The prodigal consequence of that would be to aide a segment of the population in flouting State and County law. Specifically the laws against obstructing public highway. The second portion being that we believe that the County, who the Mayor used unauthorized funds with the explicit benefit of the protestors, using both man power and equipment to be able to grade lava rock off the highway. It had nothing to do with direct access. This is against the law because this flaws State environmental review and it shoes unfair treatment. So that’s my summary of, this kind of bird’s eye view summary, of this statement. I hope that the Board was able to read that and I thank them very much for allowing me to summarize these points. Mr. Robinson: Thank you Mr. Currie. We appreciate your interest and your participation. Mr. Heintz: Mr. Chairman? Mr. Robinson: Yes? 5 Mr. Heintz: I have a question. I think maybe both for Mr. Currie and for J, our Corporation Counsel. Mr. Robinson: Go ahead. Mr. Heintz: Mr. Currie, with regard to the Memorandum of Agreement that you site, on page 4 of your written testimony, that was executed in 2002. Do you know if that memorandum has a time limit or is it still effective? Mr. Currie: Sure, very good question. There is no time limit to my knowledge. And to be extremely clear, as I believe I referred to them in the testimony, if I didn’t I apologize. I believe I referred to the testimony, Mayor Kim himself cited that memorandum in a letter to Bill Aila to explain why the library at the TMT site must move. So even if there was any question at all about the status of that memorandum, the Mayor used that as justification to remove some structures on the Site. Okay. So he cannot have it both ways and so our feeling is that this sort of token law enforcement step, token land regulation step misses the bigger picture. That same justification holds for the entire encampment. And this is one of the reasons why in our original submission, we went through such pains to explain why tents and other structures count as a land use that require a board permit. It’s not just building a library or a house, it’s much more, the land use regulations are much more encompassing than that. Mr. Heintz: Thank you…and the Mayor’s citing of this memorandum was in the Fall of 2019 right? Mr. Currie: That is correct. It was in the Fall 2019 when he claimed he didn’t have jurisdiction but obviously he tried to exercise it there. It was also around the same timeline which community members and other citizens specifically petitioned him to uphold the laws. In fact I referred this exact same requirement from the HRS and HAR standards in my meeting with him. So he knows, or had to have known his obligations. Mr. Heintz: Thank you, J did you wanna add anything to this? I mean, my questions was both to you and Mr. Currie. Mr. Yoshimoto: In terms of the 2002 Memorandum of Agreement? Mr. Heintz: Yes and whether it’s still operative. 6 Mr. Yoshimoto: I don’t have any specific knowledge as to any changes to that memorandum and I haven’t reviewed the 2019 letter. Mr. Wiseman: Mr. Chairman I can hardly hear you or J speaking. Can you turn the volume up a little? Mr. Yoshimoto: Is this better? Mr. Robinson: You might wanna try the volume on your side too David. Mr. Wiseman: I did, it’s up to the max. Ms. Nakanishi: I’m having the same issue. Mr. Yoshimoto: So basically with reference to the 2002 memorandum, I don’t know if it’s still current or not or if it has been superseded so, no I have no information other than that. Mr. Heintz: Thank you…Thank you Mr. Chairman. Mr. Robinson: Okay. Anything else for Mr. Currie? Alright… Mr. Currie: Yeah (?) add just one more thing just to reiterate. We do, we would like the Board to consider the additional two pieces of evidence, these are items 7 and 8 in our filing. And just to be very clear, one of these, in terms of improper use of County funds, for the advantage of the protestors, I believe the evidence will show that, that particular complaint was given to the Board back in January. So this not a sort of Ad Hoc addition in response to the core counsel opinion or what Mayor Kim said, this has been here all along. I guess I don’t know why, we hadn’t thought of including it before because some of the other violations were just so much more obvious to me, and to others, but we just wanted to re- emphasize that. Mr. Robinson: Thank you Mr. Currie. Mr. Heintz: Mr. Chairman? Mr. Robinson: Yes. Mr. Heintz: Is it, am I correct in understanding that Mr. Curries addition will also be part of their petition to the State Board of Ethics? Mr. Robinson: Is that correct Mr. Currie? 7 Mr. Currie: Well so, just to be clear, we did try to petition the State Board of Ethics. Now as Ms. Malakaua, communicated to you earlier, she has had a, I guess you can say, a very poor experience with the State Board of Ethics personnel. And effectively they ignored her complaint and I, we can take from that what we want, there was no justification given. My own person interpretation from seeing the notes and the email trail before is that they just simply didn’t do their job. You know, and that’s, I thank this Board for giving the issue the attention it needs. Mr. Robinson: Well Mr. Currie as you’re aware, from Mayor Kim’s testimony to this Board, last time, last meeting, which kinda came about last minute, he did say that everything that he did was at the direction of Governor Ige. And so it would seem to me that your method of complaint should be with the State Board of Ethics and I’m surprised to hear that they are not giving it the attention that we have. Mr. Currie: Yeah, well, again to reiterate, thank you for your attention with that. I guess I could disagree that the State Board is the focal point for this. In article 14 of the constitution it says that the proper jurisdiction for the Ethics Board is the State employees for the State, County employees for the County and there, it’s very clear that the County itself, the memorandum of understanding, the County itself has an obligation, irrespective of what the State does. And in the letter that Mayor Kim sent, where he cited that memorandum, there’s no evidence at all that he did that under the direction of the Governor, or anyone at the State level. In fact it seemed, in fact his message seemed to be showing (?) with the State, asking them ‘Guys,’ you know, ‘get your act together’ in that particular case. So I guess, respectfully I would disagree… Mr. Robinson: Okay I hear you, did you read Mayor Kim’s testimony from the last meeting? Mr. Currie: Yes I did and I mean, he’s a charming guy, but I, in all honesty, I mean no disrespect it just seemed like a Jedi mind trick attempt, to me. Mr. Robinson: Okay well, Jedi mind trick it is. Mr. Heintz: Mr. Chairman, I’m sorry I keep…my mind is racing this morning. Mr. Robinson: No, this is good, this is good. 8 Mr. Heintz: Have, does Mr. Currie…maybe this should be directed to Ms. Malakaua…but my question is, have they received a written response to their petition to the State, Board of Ethics. Mr. Currie: Yes, it was simple. It was like, hey we received your petition, we’re not gonna do anything about it. Done. Mr. Heintz: Could a copy of that be submitted to the Board in our request that the Board consider interacting with the State Board of Ethics? Because in a large extent we are deferring to the State Board. And if the State Board isn’t going to take this up, then the citizens of Hawai‘i are not being served. Mr. Robinson: That’s correct. Mr. Currie: Thank you, yeah. I’d have to ask Lisa about that. She’s the one driving the force behind that but I’ll ask her about that and I – if she agrees then we’ll send it, I can’t imagine a problem with that. Mr. Robinson: Alright, anything else Mr. Currie. Mr. Currie: I just thank the County Board for giving this matter the seriousness that it deserves. I just see this situation as crystal clear that the County does have an obligation to enforce land use, it does have law enforcement obligations. And not only did it not do that, in this particular case, but it did it in an unequal way. And I just see, if this is allowed to stand without any response from the Board, that kind of message I think is a chilling one. It’d be like no different from that person who’s at the park in Hilo, able to block a planned parenthood clinic. And some Mayor just saying well it’s a political issue, we can’t do anything…So I thank the Board again for its consideration. Mr. Robinson: Thank you. One hand you’re telling us we’re not doing our job, then the other hand you’re telling us thank you for doing our job. So we appreciate it. Mr. Currie: Sorry about that. Mr. Robinson: We appreciate getting slapped on both cheeks Mr. Currie. Thank you very much. Mr. Currie: Thank you. Mr. Robinson: Is there any other statements from the public? 9 Ms. Aiello: Not to my knowledge again. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF November 16, 2020 (10:19 a.m.) Mr. Robinson: Next item is the approval of the November 16 meeting minutes. Has everyone had a chance to review those? Mr. Heintz: Mr. Chairman, I have a question. We will be discussing the content of those meetings in our discussion of the petition 2020-04 later is that right? Mr. Robinson: Correct. Mr. Heintz: So all we’re doing is approving that these are, these reflect accurately what happened with Liza’s transcriptions correct? Mr. Robinson: Correct. Mr. Heintz: Thank you. Mr. Wiseman: I move to approve the minutes of the meeting of November… Ms. Sumner-Mack: Wait, I have one question about this. On page 40--- Mr. Robinson: Let’s, before we have a discussion, let’s get a second on the motion. Is there a second to that motion? Mr. Heintz: I’ll second. Motion and Vote: Mr. Wiseman moved to approve the minutes. Mr. Heintz second the motion. All members voted aye. Mr. Robinson: Okay it’s been moved and seconded that we approve the minutes of November 16. Now let’s have discussion. Ms. Sumner-Mack: My question relates to page 40 when it said, at the top of the page “Motion to vote, Ms. Sumner-Mack moved to continue the petition, Mr. Wiseman seconded the motion…” and it was my recollection that Mr. Heintz seconded that motion. A minor point but, on page 39 it has Mr. Heintz saying ‘I second’. So that’s just a correction, minor correction. Mr. Robinson: Okay, is that your recollection as well Mr. Heintz? 10 Ms. Sumner-Mack: I remember cause usually I second him, and this time he seconded me so…so anyway but it does say on page 39 that Mr. Heintz seconded. Mr. Robinson: Okay. Mr. Yoshimoto: And Mr. Chairman I have one more correction on page 45, one, two, three, fourth paragraph down, where I’m speaking…Instead of ‘order’ in the beginning of the first sentence, it should be ‘or the’. ‘We usually do that at the beginning or the end of the calendar year…’ Mr. Robinson: Okay Mr. Yoshimoto…’We usually do that at the beginning…’ Mr. Yoshimoto: ‘Or the’… Mr. Robinson: ‘Or the’… Mr. Yoshimoto: So ‘order then’, should be deleted, and then inserted should be ‘or the’. Mr. Robinson: Okay. Okay any further discussion? Mr. Heintz: Mr. Chairman? Mr. Robinson: Yes. Mr. Heintz: Mr. Chairman, on the same page 45, this is not really a correction. But it’s rather a concern. The last part of the meeting where Mr. Heintz begins speaking…Mr. Robinson says ‘Okay anything else?’ And I asked if we’re going to revisit Mr. Kamelamela’ s letter?, that conversation. I think the minutes are accurate, so I’m not contesting the minutes. But what I’m concerned about is that we can put on the agenda or at some point we need to revisit this letter. And the reason we need to revisit this letter is, as I indicate, some things don’t die with a single cut. This Board needs to express that it does not agree with Mr. Kamelamela’ s advice because that’s gonna come back and bite us because that’s being referred to by the legal case. Mr. Chairman you’re quoted as conceding that, and going along with the Corporation Counsel’s judgment. In the thing we received to just, the last thing that J sent us. The court case… Mr. Robinson: This? Mr. Heintz: Uh yes. 11 Mr. Robinson: With the opinion? Mr. Heintz: Yes. You’re quoted in his statement, and I think the Board, and I guess I also have a question to J. The Corporation Counsel’s 10-page memo. Does it simply go in our record and has no standing or advice? Or it’s an opinion that stands? Because if it is, then I think we need to express that we do not agree with the opinion. Mr. Robinson: Yeah I’d…where. Mr. Wiseman: Mr. Chairman? Mr. Robinson: Just a second. Where am I quoted as going along with this? Is it in the minutes? Mr. Heintz: The material we received… Mr. Yoshimoto: We should focus on the minutes, rather than… Mr. Robinson: Right…but I just wanna be clear on this part. Mr. Yoshimoto: Okay. Mr. Wiseman: Mr. Chairman. Mr. Robinson: Just a moment Mr. Wiseman. Mr. Wiseman: Okay. Mr. Heintz: Okay…The court case, by the Native Hawaiian Legal Corporation. And the letter that was attached to it. Aloha, from… Mr. Robinson: Yeah, from Eddie Ayau. Mr. Heintz: The long quote? Mr. Robinson: Right. Mr. Heintz: That is highlighted. That long quote is quoting the Chair, Mr. Robinson states, and that entire thing is you, from our minutes. Mr. Robinson: Okay, well I just got this last night, so… Mr. Heintz: Yeah so did I, and I read this… 12 Mr. Robinson: Actually I got this, this morning. Mr. Heintz: I just wanna suggest that if we don’t disassociate with the Corporation Counsel’s opinion then this kind of thing is gonna go in, I mean this is attached to his court case. Mr. Robinson: Right well… Mr. Heintz: And I just, that’s all. Mr. Robinson: Yeah, I appreciate you bringing that up and let’s discuss that today in our agenda item when we deal with this because, that’s very important. Yes, Mr. Wiseman? Mr. Heintz: Thank you. Mr. Wiseman: Yeah, just a matter of formality. We’re discussing that minutes. Mr. Heintz’s concern is valid of course but I think that should be under New Business or Old Business. But right now, it’s just a formality to approve the minutes as transcribed. So I don’t think that’s, it’s a proper time to discuss that issue. Mr. Robinson: Right. So we’re gonna discuss it when we have that item on the agenda, later. Mr. Wiseman: Yeah, we can discuss it later but right now it’s just approval of the minutes and we can move on. Mr. Robinson: Okay so, then the minutes. We’ve had two corrections to the minutes. Is there any further discussion to the minutes? If not all those in favor of approving say Aye. Contrary minded. Okay, alright. Minutes approved. 4. NEW BUSINESS (10:26 a.m.) 10:26 a.m. a. Discussion of the 2020 Hawai‘i County Charter Amendments. Mr. Robinson: Did everyone get a copy of that? In their packet. And that’s, the Code Amendments are ones that we worked on, two-three years ago? Mr. Yoshimoto: Yes so Mr. Chairman, did you want to take any items out of order since we have Ms. Malakaua waiting outside. Or the other matter the unfinished business that Mr. Murai might be available for? 13 Mr. Robinson: Is Mr. Murai on the phone? Mr. Murai I am Mr. Chair. Mr. Robinson: Would anyone have any problems with us moving that up and taking that now? Which is Petition 2020-01 and 2020-05… Mr. Heintz: No objection. Mr. Yoshimoto: Make a motion to amend the agenda, please. Mr. Heintz: Make a motion to amend the agenda, having the entire unfinished business section 5a,b, and c all moved up. Mr. Robinson: Is there a second? Mr. Wiseman: Second Mr. Robinson: Okay, it’s moved and seconded that we move the entire unfinished business, which is 20-01, 20-04, 20-05. 20-01 and 20-05 are . We’ll take those first , and then 20-04 we’ll do after that. So we’ll move that up on the agenda and put that before New Business. 10:27 a.m. The Board voted to amend the Agenda. Motion and Vote: Mr. Heintz moved to amend the agenda. Mr. Wiseman second the motion. All members voted aye. Mr. Yoshimoto: So Mr. Chairman if the record can reflect that Mr. Murai is advising the Board and I’m gonna be stepping aside. Mr. Robinson: Yes, the record will show. 10:28 a.m. The Board moved to Agenda item 5a and 5c * * * * * 11:59 a.m. The Board returned to Agenda item 4a Mr. Robinson: I think we have sent out the memorandum from Kenneth Goodenow, regarding all the amendments he worked, like a stalwart on this. He put a lot of time on this. So J could we ask your input on these at this point? 14 Mr. Yoshimoto: Okay so Mr. Chairman, my understanding is the Board wanted to discuss the Charter amendments from the 2020 election. Mr. Robinson: Correct. Mr. Yoshimoto: Specifically Article 14, section 14-5 of the Charter was amended to allow, specifically allow the Board to impose civil fines, there were some other minor housekeeping matters, but the main focus of that Charter amendment addressed the penalty provision. And just as a refresher for everyone else, back in 2008 the Council passed some Code amendments that were subject to the rules being amended that also allowed for civil penalties. And so that Charter amendment that was imposed and passed now is consistent with the Council. Mr. Robinson: Correct. Mr. Yoshimoto: So, I mean if the Board members have any questions, I’d be happy to answer them but moving forward, that ties into the rule amendments that the Board will continue to work on, as well as the code changes to make sure that everything is in sync with each other. Mr. Robinson: So the Code amendments that were previously accepted by this Board and you passed that previously, we would then have to take action as a Board to incorporate those into our rules, correct? Mr. Yoshimoto: Correct, right. So how, yes, so both the rule amendments and the code amendments should be looked at together to make sure again that they’re consistent with each other. So I do have like I mentioned, thoughts and changes, and I think there’s items of discussion with respect to the rules as well as the code that I recall being brought up by different Board members in the past. So I think now would be an opportune time, or when the Board has time to do that. As well as consider changes that I believe Mr. Heintz has as well. Mr. Heintz: I have a question for J. J, in the authorization for, that we can have penalties, was there any kind of schedule or guidance on what those penalties could be. I know that from the stuff I’ve been reading. I think there was a limit of $1,000 per charge or offense. And I was wondering if there was something further than that. Mr. Yoshimoto: Yes, there is. Sorry I passed it out to the members before. I just have one copy with me now. But you are correct, the 15 administrative fines shall not exceed $1000 for each violation. So Mr. Heintz I can pass that to you if you wanna look at it right now. Mr. Heintz: No hurry, no I just wanted to know cause I can’t quite imagine, I mean, to just come up with numbers out of our heads. Mr. Yoshimoto: Right, and part of the process is, this ordinance was passed back in 2008, the amendments that have are being considered by the Board to the Code, actually affects this ordinance. So we need to make sure again, because this ordinance goes into effect upon approval of the Board passing rules pertaining to Chapter 91. So what I’m saying is, is that we have to be careful cause there’s all these moving parts. And so, I don’t believe the memo that was distributed amended this ordinance. Wish it should, I think it amended the existing code language which is subject to change. So this springs to life once we do our rules. But then again we need to make sure that everything is consistent. Mr. Robinson: J can you draft for us these amendments, and have it for our next meeting? Mr. Yoshimoto: I can. I wanted to make sure that we have an opportunity to talk about thoughts that other Board members have as far as issues they see outstanding, and so, that way we can, we can speed things up along I guess is what I’m trying to say right. Because as an example, well, we can start with Mr. Heintz since he has some proposals but I can make amendments as well, suggestions. Because like I said the proposals that were drafted I have changes in addition to those. RR; Okay. Mr. Wiseman: You’re talking about Mr. Ken’s proposals right? Mr. Yoshimoto: Yes, correct. Mr. Wiseman: Yeah, and as some of us will recall, we spent a great deal of time in that. And like the Chair said, Ken did amazing work on it. He came through with detailed analysis from all the different counties and I remember, I used to question how in the world he was able to find time to do all of that. But in any event, we had a lot of discussions, and I had a lot of input on some of them, some changes. So yeah we need to schedule this and have a discussion. Mr. Yoshimoto: So yeah, this is gonna take some time. I mean just to give you an example, you know there’s an amendment here that talks about 16 consideration of a petition not to exceed 90 days. That would not have allowed us to continue with the petition we had just before us today. So that’s something that I think should be amended because you know circumstances to change and some things do take additional time. There’s changes as far as the definitions of officers, there’s a six year statute of limitations that the Board may wanna consider as far as whether that’s still appropriate or not. Mr. Wiseman: I had great concern with that one, I remember that was a subject of a lot of discussion. Mr. Yoshimoto: Yes, so – Mr. Wiseman: Six year is yeah, I’m totally against six years. Mr. Yoshimoto: Yeah I think Maui has 2 years, so that’s something the Board – again so there’s a lot there, but I actually wanted to hear from the Board members initially today if they have any comments and I’ll incorporate those and I’ll put it into a package that the Board can review. Mr. Robinson: Maybe we can do that at our next meeting cause we kinda used a lot of our time this morning dealing with those other petitions that we had and just make that a major part of the agenda for the next meeting and give J some time to draft up something to send out to us. Mr. Yoshimoto: So if the Board members communicate proposed amendments to me directly and not to everybody else then I can incorporate those changes, that works. Mr. Heintz: I mean, I was not a member when Ken did this. I’ve gone through it and I have lots of questions, not so much changes but sometimes I don’t understand the significance of some of the changes, the advantages, the implications. But for the most part, I like what I’m reading but I do have a lot of comments to make. And of course I have the one change, that additional section to the code and to Chapter 14 that has been provided to everybody. Mr. Wiseman: Mr. Chairman, as some of us know I have a file cabinet drawer, filled with all sorts of drafts and everything that Ken did (?) lot of information on these amendments. Mr. Robinson: Yeah I kept those too David and they’re voluminous. I kept asking how he could practice law and do that at the same time. 17 Mr. Yoshimoto: So Larry if you would like those drafts. Cause I think as I recall he went through one or two sections at a time, and so that’s available if you want that emailed to you or… Mr. Heintz: I have enough…Just the two that you sent us, I believe that if we’re gonna go through it page by page, just what you sent. Then things would be explained and I think most things would be handled that way. No need to kill more trees… Mr. Robinson: Yeah we can just put it on January and hopefully we’ll have enough time on the agenda to get through it. So that would take care of a, c and d cause that will all be consolidated and continued... Mr. Wiseman: Mr. Chairman, I have to take off about 2 minutes, I have someone, a worker he’s ready to leave… Mr. Robinson: Right so the only other item remaining before we go in executive session is the selection of the Board of Ethics Chair and Vice Chair for 2021. Today’s my last meeting. Mr. Heintz: I nominate Mr. Robinson: for Chair. Mr. Robinson: Unfortunately, David I’m termed out. Ms. Sumner-Mack: Can he extend for 90 days? Mr. Heintz: Is there a, do you know what your status is, can, I think Nan is serious, is this your last meeting or are you gonna be extending for 90 days? Mr. Robinson: You know I said if asked, to extend, of course that’s the decision by the Mayor’s office. And we’re still waiting on that. I called and asked for a replacement for Nan, for myself I haven’t heard back but hopefully she’ll call me at some point. We no longer have the new person, is Pomai…Bartolome. She is the new person in the Mayor’s office. We had Bautista, what’s her first name? Rose Bautista and when I called the other day, Ms. Pomai, Bartolome is the new person that handles Boards and Commissions. Mr. Yoshimoto: So, would the board like to defer this then until the next meeting? This selection of Chair and Vice Chair? Or address today? It’s up to the Board. Mr. Heintz: Well I think we should address it today, unless… 18 Mr. Robinson: I mean I’ll stay on, but at some point you have to select somebody. Mr. Wiseman: I move to defer to the next meeting. Mr. Robinson: Okay. Mr. Yoshimoto: So upon that deferral then Rick you’ll continue to serve as chair and Mr. Wiseman as Vice Chair. Mr. Robinson: Okay. Alright with that we’re going to go into executive session. So is there a motion? Do I need to read all of these again? Mr. Wiseman: I move we move the session to executive session. Mr. Robinson: Is there a second? Ms. Sumner-Mack: I’ll second. Mr. Robinson: Okay all those in favor say Aye. Motion and Vote: Mr. Wiseman moved to go return to executive session. Ms. Sumner-Mack second the motion. All members voted aye. 12:11 p.m. The board returned to executive session * * * * 12:20 p.m. The board returned to regular session and moved to Agenda item 6a 5. UNFINISHED BUSINESS (10:28 a.m.) 10:28 a.m. a. Petition 2020-01 (Combined with 2020-05): Review draft informal advisory opinion dismissing a petition alleging that a County officer or employee is in violation of Sections 2-83 (Fair Treatment) and 2-84(a) (Conflict of Interest) of the Hawai'i County Code. c. Petition 2020-05 (Combined with 2020-01): Review draft informal advisory opinion dismissing a petition alleging that three County officers or employees are in violation of Section 2-83 (Fair Treatment) and 2-84(a) (Conflict of Interest) of the Hawai'i County Code. Mr. Robinson: Okay Mr. Murai, we’ll start with 20-01 and 20-05, you have given us a draft, informal advisory opinion. Mr. Murai Yes Mr. Chair, and I understand what this matter is on the agenda 19 for is for a review and approval. If the Board has any corrections, well if the Board accepts the draft as presented then I would suggest the Board authorize you to execute the informal advisory opinion. Of course if the Board has any corrections, or edits, I’ll be glad to make them and (?) that they’re approved by the Board. Mr. Robinson: Correct and I think that there’s already been some corrections to this previously. Mr. Murai Right, as you may recall at the last meeting, Board member Wiseman had asked to, had wanted to add some comments, which we’ve had the opportunity to incorporate. So this was initially reviewed and now it’s available for the full Board. Mr. Heintz: Mr. Chairman? I’d like to move that approve the draft. Mr. Robinson: Approve the draft, is there a second? Ms. Sumner-Mack: I’ll second that. Mr. Robinson: Okay it’s been moved and seconded that we approve the draft informal advisory opinion. Is there any further discussion? If not, all those in favor say Aye. Motion and Vote: Mr. Heintz moved to approve the draft informal advisory opinion. Ms. Sumner-Mack second the motion. All members voted aye. Mr. Murai So Mr. Chair, with that I believe I’m pau and if that is the case, I will excuse myself. Mr. Robinson: Are you dealing with 20-04? Mr. Murai No, not as far as I know. Mr. Robinson: Oh, J’s dealing with that. Okay, Mr. Murai, Thank you very much for all your help. Mr. Murai You’re welcome, my pleasure. Take care everybody. Mr. Robinson: You’re a stalwart, and we wish you a Merry Christmas. Mr. Murai Thank you, same to all of you. Take Care. Mr. Robinson: Okay, aloha. 20 10:31 a.m. The Board took a recess. * * * * * 10:39 a.m. The Board returned from recess 10:39 a.m. b. Petition 2020-04: Continued 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. Mr. Robinson: So the next item, under unfinished business which we moved up to be before new business, is petition 2020-04. Continued 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. We have Lisa Malakaua and, my mind just went blank. Ms. Malakaua: Mike Nathaniel. Mr. Robinson: Michael Nathaniel. Sorry Michael…so would you folks like to add anything? I’m assuming by this time you’ve had a chance…Last meeting we had a last minute request from the Mayor to come down and speak to us, which he did. Ms. Malakaua: Correct. Mr. Robinson: He’s no longer the Mayor now but he wanted to get that done and I think you folks were supplied a copy of his testimony… Ms. Malakaua: We were. Mr. Robinson: Okay. Ms. Malakaua: And so I do believe Thayne Currie has already addressed what our response would be, cohesively on that. And I guess one of my questions is, he’s not part of our formal complaint, or filing. So can Thayne be added to that now or is it too late to add people to this? Mr. Robinson: I don’t know the answer to that… Ms. Malakaua: Okay… Mr. Yoshimoto: That’s up to the Board. It’s a procedural matter. I don’t see any problem so long as you’re stating on the record that either…so you have maybe a couple options, tell me which one’s better. You can either have his submission be included as part of your petition or if 21 you wanted to formally add him as a petitioner, you could do that as well, with the approval of the Board. Either way is fine. Ms. Malakaua: Okay, yeah. Well both actually…so, okay great. Mr. Heintz: Mr. Chairman? Mr. Robinson: Yes? Mr. Heintz: I move that Mr. Thayne Curry be added as a petitioner and thus all his testimony is considered formally part of the petition. Ms. Malakaua: Yes. Mr. Yoshimoto: Just so that everyone’s clear, so what that means that is that he will be noticed for, in any further proceedings that occur, and both of you are okay with that? Ms. Malakaua: Absolutely. Mr. Yoshimoto: Yes? Okay. Mr. Robinson: Okay so is there a second to that motion? Mr. Yoshimoto: And Mr. Currie is okay with that? Mr. Robinson: Mr. Currie are you still on the line? Mr. Currie: Yes, I’m okay with that. Mr. Robinson: Okay. Is there a second to that? Ms. Sumner-Mack: I’ll second it. Mr. Robinson: Okay it’s been moved and seconded that the Board of Ethics allow the petitioner Lisa Malakaua and Michael Nathaniel to add Thayne Currie as, what would he be called, a respondent? Mr. Yoshimoto: Petitioner. Mr. Robinson: Petitioner…as a petitioner. Is there any further discussion? Ms. Sumner-Mack: I’d like to suggest that we include in this as per the request of the original petitioners. So it’s clear that they approve of that. I think that should be in the motion. 22 Mr. Robinson: As per their request. Ms. Sumner-Mack: Yes. Mr. Heintz: That’s fine. Mr. Robinson: So the motion is to add Thayne Currie as petitioner with the approval and at the request of the Lisa Malakaua and Michael Nathaniel. Ms. Malakaua: Correct. Agreed. Mr. Robinson: Any further discussion? If not, all those in favor say Aye. Motion and Vote: Mr. Heintz motioned to add Thayne Currie as petitioner with the approval and at the request of the Lisa Malakaua and Michael Nathaniel. Ms. Sumner- Mack seconded. All members voted Aye. Ms. Malakaua: Okay and also I just forwarded to you J, a copy of the letter that we received from the state. Mr. Yoshimoto: Okay. Ms. Malakaua: I didn’t realize you would need a copy of that until you spoke to Thayne just a few minutes earlier. So I don’t know if you can forward to the rest or not. But the State has decided not to touch this case, at all. They don’t believe there’s a problem here. Mr. Yoshimoto: Would you like to read that into the record if you have it on your phone? Mr. Robinson: Yeah if you have it on your phone. Ms. Malakaua: Okay, I have it on my phone. Sure, I can read it into the record. Mr. Yoshimoto: If it’s not too long or… Ms. Malakaua: No, it’s not too long… Mr. Yoshimoto: And for the record I’ll forward that to the Board members. Ms. Malakaua: Okay. Should I start? Okay: “Dear Ms. Malakaua and Mr. Nathaniel, the Hawai‘i State Ethics Commission received the charge you filed against Attorney General Claire Connors, Governor David Ige, Department of Hawaiian Home Lands Chair 23 William Aila and Board of Land and Natural Resources Chair Suzanne Case, thereinafter respondents, on October 13, 2020. By statute, the Commission is permitted to investigate any charge and any such investigation shall be kept confidential. Hawai‘i Revised Statute 84-31(b). The Commission reviewed this matter at its meeting on November 19, 2020. After considering this matter, the Commission voted to dismiss the charge. This matter is now closed. Because the ethics code requires confidentiality in Commission investigations, I apologize that I am unable to give you additional information about this matter. However, I appreciate you bringing this matter to the Commission’s attention and if you have questions regarding the Commission or it’s process, please feel free to contact us again. Daniel Gluck, Executive Director and General Counsel.” Mr. Yoshimoto: What was the date of that? Ms. Malakaua: Okay so the date that they sent it, okay well the actual letter is dated for November 23rd, 2020. And it was actually sent to me on November 24th, via email. Mr. Heintz: Mr. Chairman, just for a matter of clarification. May I ask a question of Ms. Malakaua? Mr. Robinson: Please, go ahead. Mr. Heintz: So what they’re responding too is what you supplied us, namely, this is the submission they rejected? Ms. Malakaua: Correct. Mr. Heintz: Which included Thayne Currie’s earlier testimony? Ms. Malakaua: Correct. Mr. Heintz: Thank you. Ms. Malakaua: And I also had submitted on October 7th, it was almost like a final submission with some additional information and content to be added and I know when we were here at the Board in October, that that wasn’t before you, so I’m not sure if you guys have gotten that since that time or not, but that was also included with the state. So they’ve got, they’ve got everything pretty much you guys should’ve gotten. So… 24 Ms. Sumner-Mack: So, excuse me, their response did not refer to any problem with it being a political issue rather than an ethical issue… Ms. Malakaua: Yeah they didn’t say either way. Ms. Sumner-Mack: I’m quite uncomfortable with our earlier decision to just…I think, I think our Board of Ethics might consider writing directly to the State Board of Ethics about this matter…because to render an opinion, a decision with no information at all? Mr. Wiseman: I’m sorry can you speak louder please? Ms. Sumner-Mack: I think it should be public information and if they see fit not to deal with it, there should be a reason why. But anyways, it might be helpful for us as a Board to say, you know, really we’ve meant to turn this over to you because you seemed to have jurisdiction. Ms. Malakaua: Correct. Mr. Heintz: Mr. Chairman, I have a question for J. Mr. Robinson: Please, go ahead. Mr. Heintz: I know earlier at one point on another matter there was a question about what we can do as a Board writing to, for example, the State Board Commission or as individuals. I don’t think that you gave us that consultation but it was another substitute Corporation Counsel person. A lady I forget her name. But the question I have is, I think I’m with Nan, that this Ethics Board needs to write to the commission, need to gather our thoughts and put together a formal statement about this dismissal of this case. By the time we’re done today it should become evident that the State and the County are in tandem responsible for this and both need to address this. So my questions is, is that appropriate for the Board to do that? Mr. Yoshimoto: Is it appropriate for the Board to write a letter to the State Ethics Commission regarding this matter? In terms of, ok so, the best way to answer the question is, you know, you asked the question of what this Board is authorized to do right? The powers of this Board come from the County Charter and the County Code, and those powers address, or that authority addresses the interpretation of the Board of Ethics, right? So in the past, I have advised the Board that with respect to state matters, you know this Board has no jurisdiction. Now, if the Board is writing, it depends what the letter says I guess is what I’m trying to say because we can’t tell the State Ethics Commission…we have no authority to tell them what 25 to do. Expressing an opinion is different. An opinion is, right? Now, so yeah it depends, but as for as an authorized Board action, there could be some concerns about the Board stepping beyond its authority and that’s why I’m here to advise you and it’s…just to make it clear for the record, whatever the Board decides to do is strictly up to the Board. My advice is just to you as your legal counsel. Now, someone could arguably say you’re acting beyond the scope of your authority, because again your authority comes again from the Charter. This matter is complex because it does as we see involve interaction between a State and a County agency in this matter. And without getting into the details of how that came about or what happened or what didn’t happen. You know, my thought is that the State Ethics Board did render a decision but due their rules, I’m not intimately familiar with what their rules say, but just based upon what Ms. Malakaua stated today. It basically said that due to their rules they’re not able to explain their decision, but they’re able to say that they dismissed it. And so, while we could write a letter, I don’t know what that letter would say and I don’t know what effect it would have. So again, it kinda depends, I’m sorry to give you a depends answer but it does depend because one, we’re not a party to your petition there, right? And two, we have no authority over them. So I hope that helps you because… Mr. Robinson: Yeah it does. Mr. Yoshimoto: Okay. Mr. Robinson: Mr. Wiseman? Mr. Wiseman: I’d like to add. Yeah in writing a letter, I don’t see think it’s appropriate. Because what we’re looking at is a quasi (?) decision that dismissed the case and if you’re an attorney in court I mean, you would ask the court to maybe to reconsider or you would appeal their decision. But for us to write a letter and again like J said we don’t know the facts, we don’t know the details, we don’t know the grounds for their dismissal. I don’t think it’s appropriate at this time. Let’s remember it is the court (?), they’re awaiting a decision on some judgment with respect to the jurisdiction over, the Hawai‘i Home Commission Act in Mauna Kea Access Road. Mr. Robinson: Okay anyone else have anything? Yes Nan. Ms. Sumner-Mack: I think…did you just give me permission to speak. Mr. Robinson: Yes. 26 NMS: Okay. I like J’s wording of what he mentioned, we might consider. We certainly, by writing a letter we’re not asserting authority but calling attention to the complexity of the jurisdictions involved and that we have received testimony from former Mayor Kim, about his feeling on who was responsible when and so on. I think it’s a perfectly reasonable thing to write diplomatic letter and just ask them, ‘we just heard that you’ve dismissed this case and we wondered if you might give some more consideration to that.’ And send along Mayor Kim’s testimony and whatever else you want send… Mr. Wiseman: Well, Mr. Chairman, again, like J said, we are not a party to the case, so we would not have standing to ask them to take any action with respect to the dismissal on the case. Ms. Malakaua: Probably something that we would need to do. Go back and re- address it. Mr. Robinson: Yeah. Anyone else have anything? Just for me, Ms. Malakaua, did you include this Corporation Counsel opinion that we have… Ms. Malakaua: No because those didn’t come until after we had already served the State. Mr. Robinson: Right. And you didn’t have the testimony of Mayor Kim either? Ms. Malakaua: No. Mr. Robinson: So those two items in themselves I think would be something that the State Ethics Board should be aware of and know. And I think since we have a petition before the County Board of Ethics regarding this and you filed, in essence, a parallel with the State Board of Ethics, while Mr. Wiseman points out we don’t have standing or we’re participants in that, I think it would be advised for the State Ethics Board to be aware of those two items. And while they may have already rendered a decision, they should be aware of and know these two items, and see…cause it’s very clear in Mr. Kim’s testimony that he did everything at the behest of Governor Ige. Ms. Malakaua: Correct. Mr. Robinson: So is it just that there’s no place for you to address your concerns? And if so, that concerns me. So I would entertain a request to write a letter to the Board of Ethics and include those two items, State 27 Board of Ethics, and let them know of our concerns. We’re not asking to enter into the case.. Ms. Malakaua: Correct. Mr. Robinson: We’re not asking to join with you. Ms. Malakaua: Correct. Mr. Robinson: We’re just sharing with them information that we have that they may not have been aware of. Ms. Malakaua: Right. Mr. Robinson: And asking them to be aware of it. Mr. Wiseman: Mr. Chairman, one tactical matter of the State Board of Ethics is actually legally – the legal title is the Ethics Commission, State Ethics Commission. Mr. Robinson: Oh Ethics Commission. Correct Mr. Yoshimoto: So Mr. Chairman, just to be clear then so, is the recommendation that this Board of Ethics write a letter to attempt to supplement the record in regards to Ms. Malakaua and Mr. Nathaniel’s petition? Mr. Robinson: Correct. That we are providing information to them that we have, that became subsequent to their request and we just want them to be aware of it. Mr. Yoshimoto: Okay, understood. And with the understanding that again, I don’t know if it’s gonna be accepted… Mr. Robinson: They can throw it away… Mr. Yoshimoto: I just wanna make sure you understand our limitations in terms of what we can do so there’s no misunderstanding as to that. You know, as Vice Chair Wiseman mentioned too, we’re not, we don’t have standing or any status in that particular petition. But again if you want to provide it, that’s up to the Board. Mr. Robinson: Right. Mr. Heintz: May I just add one thing further. What we’re providing the State Commission is the minutes that start on page 32, Mr. Kim’s testimony and Mr. Kamelamela’ s 10 page missive. And are we 28 going to comment about that? Because, or make some comments about it because at least Mr. Kamelamela is, his advice to this Board says that this is a State matter, we do not have jurisdiction but jurisdictions with the Governor, and Hawaiian Home Lands, and Department of Transportation, and he goes through and says it’s theirs, not ours. Mr. Robinson: Right. Mr. Heintz: So, these folks have been here, and I’ve been here since last November and we’ve been playing ping pong here for 11, 12 13 months. And… Mr. Robinson: And they have a valid concern, where do they address it? And they address it with us…I just think we should make the State Ethics Commission aware of all of that. Ms. Sumner-Mack: Cause when we came to our conclusion, we did it with the understanding that it should be in the State ballpark. And, you know if there’s a way to say it, we’re dismayed that the State isn’t taking it on. Or we’d like to know more about why they are not feeling responsible. Anyway, something to that effect. Mr. Heintz: Can I just clarify? There were two things before us. One was, conducting our own investigation and then you folks came up with your own petition, which was actually, had many of the parallel concerns. So we gave in to the Corporate Counsel by not conducting our own. But we proceeded with, and we are going to intend to proceed with conducting yours as a County one. Thank you…as a regular petition. Mr. Robinson: I mean, but you know, they must have some place that they can address our concerns and somebody that can respond to them. It’s only fair. Ms. Malakaua: Yeah. And I think that’s what the general public is wanting to know to you know, this is kinda why we took a lot of this on was to figure out how this system is working and is it working for everybody or is it just working for you know the top heads and the elites you know? And so, we just wanna get a little clarity on that you know everybody should be treated fairly and equally and laws applied fairly and equally and as you can see you know, we’re all going through the fraudulent elections right now you know makes us wonder why we’re still democrats and all that… Mr. Heintz: Mr. Chairman, may I ask… 29 Mr. Robinson: Wait, wait, wait. Let’s let Mr. Nathaniel. Mr. Nathaniel: Oh I’ve just got a question on who’s gonna take ownership. Mr. Robinson: That’s what we’re trying to figure out. Ms. Malakaua: That’s what they’re tryna figure out… Mr. Nathaniel: Instead of going back and forth, back and forth… Mr. Robinson: We don’t want it to keep going back and forth. We wanna get to an ends… Mr. Heintz: Well I take it that we’re taking ownership of addressing your petition to the County. Ms. Malakaua: Correct. Mr. Heintz: But there’s another petition that’s gone to the state that they’ve dismissed and we’re going to comment to them providing them some additional information, in hopes that that might stimulate them to take it as well. Mr. Robinson: I would hope that if we draft this letter, if I draft this letter with J that we all get a chance, cause we have a lot of good thinking heads on our Ethics Board and we can add into it so we address it correctly. Ms. Malakaua: Right. Mr. Robinson: So having your letter back from the Ethics Board and that would help us to get started. Ms. Malakaua: Okay great. Mr. Heintz: May I ask some specific questions, rather than just having general testimony. Specifically about Mayor Kim’s statement and our interaction with him. His statement initially is about 15 lines long in our minutes and he is very, sort of non-specific or vague about several things and I just want to ask you if you can provide us with answers. For instance, he, now I have tried to suss out what some of these dates are but I’m curious if you have them. He talks about, he doesn’t know when it was that the…well he claims that the telescope, Mauna Kea issue in the regards to telescope, was, is entirely, or strictly, using his own words, a State issue. And when 30 the Governor pulled out of Mauna Kea and he didn’t, he said he didn’t know the date, but that date is I take it, the Governor’s proclamation, was July 17th. The stopping of the TMT machinery was on the 16th, and the Governor’s proclamation stayed in effect until he withdrew the proclamation or ended it on July 30th. So, that means it’s entirely a state issue until the 30th of July, at which point, and I’m reading now, the testimony of the Mayor, ‘he, Governor Ige, notified me that all representatives of County government, the access to Mauna Kea mountain was now,’ and I emphasize, ‘now to be opened, that the mountain was now to be opened was under the responsibility of the County Government of Hawai‘i. So from July 30th until it’s opened, and then he’s very vague about well, how long was he involved with it? Cause he says it’s the only time that it’s relevant, that he’s involved. One day? One week? Or until the newspaper says that the Governor’s standing down, which is December 20th. Ms. Malakaua: Right. Mr. Heintz: Which is 4 months and 19 days later. So does that mean that the Mayor is telling us that the road was obstructed or blocked for 4 months and 19 days and that during that time he was negotiating with and trying to get the road open and now it’s finally opened and everyone’s relieved. But that means, cause he does later in his testimony say, that it was closed for a considerable time. But he never tells us when and I’m just concerned if these are the dates you’re thinking. Was the road, I wasn’t there, was the road blocked for 4 months and 19 days? Ms. Malakaua: It was really, it started, the protesting had actually started on June 15th, they didn’t actually remove the protesting until a day after Christmas, which was December 26th. So had stood down, Ige, a week before that. And that’s when Kim supposedly was supposed to have taken over, and he put together some elaborate little kumbaya little brochure in hopes of what his vision was for the mountain, but as far as speaking with anybody, the kia’i or anybody else, opposing that…Nothing, we haven’t heard anything and this is why we’re kinda stumped, here we are in a moratorium. How long is this gonna last? You know we’re on lock down after lock down over here for God’s sake. Mr. Heintz: My question is just about the dates and I just wanted to make sure that everybody is on the same page. You know we’re talking about 4 months and at least 19 days, add 5… 31 Mr. Robinson: Well it looks like 6 months and 11 days if its June 15th to December 26th… Mr. Heintz: Well he doesn’t, he, the Mayor doesn’t take over until July 31st because it’s on the 30th that the Governor canceled his proclamation. Mr. Robinson: Okay so that.. Mr. Heintz: So it’s from July 31st to December, day after Christmas, 26th. Mr. Robinson: So that’s plus 45 days, yes so that’s yeah…okay. Ms. Nakanishi: I have a question when it’s time. Mr. Robinson: Yes, go ahead Denise. Ms. Nakanishi: So, before the Mayor, before he took responsibility, who was up there policing? Who arrested the Kupuna? Ms. Malakaua: That was the DOT. They started and then I believe we brought in the County Police Department after that. The Department of Transportation, their police officers actually made an attempt first and they were told to stand down. Back off. So they did, and then the County ended up going up there, the Police Officers went up there to provide basically like security and making sure that nobody else was gaining access up on that mountain. Ms. Nakanishi: But that was only after the Mayor, the Governor delegated responsibility? Ms. Malakaua: This was, this has been going on all along. I mean, it was pretty much right after the protesting started is when the officers went up there and started arresting the Kupuna. Mr. Currie: Board members, could I make a comment? And ask Lisa a question. Is that okay? Mr. Robinson: Denise are you finished? Thayne, you wanna ask your fellow respondent. Mr. Currie: Sure, just maybe this will be clarifying. So If I understand from the Board, you define July 30th as a date when the County started to assume responsibility, I just wanna make sure I understand that correctly. 32 Mr. Heintz: Yes that’s according to the Mayor. Mr. Currie: Okay, good. Lisa? When did you go up to the Mountain and get blocked for access? Was it before or after July 30th? Ms. Malakaua: It was December 11th. We went up on December 11th, 12th, 13th, and 14th of December that week. Mr. Currie: So the Mayor had assumed responsibility for the road when you tried to gain access but couldn’t. Ms. Malakaua: Yes he did, because he had already placed our police officers, our police force up there already by then. Mr. Robinson: Okay. Is there anything else? So do we need a motion to write a letter to the State Ethics Board? Yes, so the Chair would entertain a motion to write a letter to the State Ethics Board addressing these two items that we have, the opinion from Joe Kamelamela and also the Mayor’s testimony. Ms. Sumner-Mack: I move that we draft a letter to the State Board of Ethics, along the lines of what has been discussed here about sharing with them additional information and testimony and asking for more information or asking them to think about reconsidering the petition. Mr. Robinson: Okay, is there a second? Mr. Heintz: Would someone like to second the motion other than myself? I’ll be happy to but…I’ll second. Mr. Robinson: Okay so it’s been moved and seconded that we write a letter to the State Ethics Commission and address these various, address these two other items that we have. Any discussion? Mr. Yoshimoto: So Mr. Chairman I do have…oh go head Mr. Wiseman. Mr. Wiseman: Discussion again, we’re dealing with a legal government entity that is under confidential mandates. Again we don’t have standing to ask them to reconsider something, which is what we’re doing in that motion. Mr. Robinson: We’re not asking to reconsider; we’re just supplying them with information. 33 Mr. Wiseman: Well but the motion stated they want them to take another look at it or something. And I don’t see it happening. Mr. Yoshimoto: So Mr. Chairman… Mr. Robinson: Denise? Please go ahead. Ms. Nakanishi: So aren’t we really asking them to, based on what we have to…we’re informing them that we’ve been told we don’t have jurisdiction, they said they don’t have jurisdiction, who has jurisdiction. We’re not supplementing (?)… Mr. Robinson: That’s the point exactly Denise, if they say they don’t have standing and we’ve been told we don’t have standing… Mr. Heintz: We’ve been told that they have standing. Mr. Robinson: Yeah. Mr. Heintz: By our Corporation Counsel. Mr. Robinson: That’s, the Corporation Counsel points to them. So we have to, we’re just asking for clarity. Mr. Wiseman: I would suggest the motion be worded very narrowly to just reflect that request for clarity from their view point based on the Corporate Counsel’s statement. Mr. Robinson: Okay. Mr. Yoshimoto: So I have similar concerns with what Vice Chair Wiseman said. The motion as it was stated, did include a recommendation. Now if it’s just providing information, that’s one thing. But like I said, you know, we don’t have any standing, and so we don’t have that legal standing to provide input. But if it’s something that, like I said the petitioner, I don’t know what the State Ethics Rules says as far as whether you can request the appeal or reconsideration. I’m not sure about that. But for the Board like I said that’s a fine line because if you’re just providing information, you know, it is what it is. But so, the motion as worded did include recommendation, and I think that would go beyond the scope of your authority in terms of that. Ms. Sumner-Mack: I’ll withdraw anything that’s unclear about that.. Mr. Robinson: Just amend it so it’s not to seek a recommendation but just to provide clarity. 34 Ms. Sumner-Mack: I just, okay, I so amend. We’re just providing additional information for your consideration Mr. Robinson: Okay so it’s been moved and seconded. There was a brief amendment… Mr. Wiseman: Yeah can I hear the motion again? Mr. Robinson: Yes. Ms. Sumner-Mack: I wasn’t thinking of it as a specific wording but it was along the lines of what has been discussed that we have additional information, additional testimony that might be relevant to their decision… Mr. Robinson: That we should make them aware of. Ms. Sumner-Mack: We should make them aware of this new information and testimony. Mr. Robinson: Right. Moved, and I assume your second would stand then? Mr. Heintz: Yes.. Mr. Robinson: Any further discussion? Mr. Wiseman: Yes, I’m sorry to keep beating this but again, the decision’s been made. This is like asking, I mean if this new information would be given to them, It should be given under a new complaint. Not to try to open up the old one. I mean, we don’t have the standing to do so. If I’m a party to this case, then I would ask them for reconsideration based on the supplemental information but we’re not a party. So, yeah, I’m gonna yeah, that’s my point. Mr. Robinson: Okay, I understand. Okay, any further discussion? Mr. Yoshimoto: One second, so nothing prevents Mr. Nathaniel and Ms. Malakaua from providing that information. Cause that information is public record. Right, so I mean, just throwing it out there. Mr. Robinson: Right, but I think we need some clarity here as our Ethics Board, you know we’re being told by our Corporation Counsel that we don’t have any standing that, recommends that we go to the – it’s a County and it’s a State deal. So we need some clarity as well. So, 35 anyway, we just ask for a vote, all those in favor say Aye…Mr. Wiseman? Mr. Wiseman: I’m abstaining from this. Mr. Robinson: Okay, and then I’ll vote Aye as well so we have four Ayes and an abstention. Motion and Vote: Ms. Sumner-Mack motioned to provide additional information to the State Ethics Commission. Mr. Heintz seconded. Four members voted Aye, one abstained. Ms. Malakaua: So after you reach out to the State, you’ll just contact us for another meeting? Or are we just gonna be here again next month? Mr. Robinson: Well we’ll contact you, we’ll let you know. We’ll provide, actually we’ll provide you a copy of the letter that we send. Ms. Malakaua: Okay that’s great, awesome. And so, on that note then we’re not going to go ahead and provide any testimonies today. Mr. Robinson: Okay. Ms. Malakaua: So we’re through. Mr. Robinson: And we’ll just continue this to our next meeting as well. Mr. Yoshimoto: You wanna continue it or you wanna just wait and see until we get a response? If any from the – Mr. Robinson: Well we’ll put it on the agenda for the next meeting but if we’re not gonna get a response then we’ll just note that but hopefully we’ll get a response by then. And as soon as we get a response we’ll contact Mr. Nathaniel and Ms. Malakaua. Mr. Yoshimoto: Okay so it’s gonna be on the agenda, for the next time just so it’s – Mr. Heintz: Mr. Chairman may I join this discussion? I was hoping to discuss the Mayor’s response to the petition in our discussion further and I was, and I have a question to J. Because I have been, I feel like I’ve been on this now for at least 13 or 14 months and I’m ready to ask a question about this Board acting on this petition now. I have enough information to act and – but I have a problem, and that is should we, we could act, I guess I’m unclear exactly what our options are. One is, we could act on a declaratory judgment, or we could act to have a conducting investigation, which we backed off 36 from because of the Corporation Counsel. In other words, we could act under Rule 4 or Rule 5 is that right? Mr. Yoshimoto: Yes so, if you wanna talk in more detail about the legal options I would suggest we go into executive session and then ask them to wait outside so at least they’ll know what the outcome is, just in case you needed further information from – Mr. Heintz: Right, cause if we do one of the options, we may, at least as far as I’m concerned, we may be able to move to the point where we’re done with this issue today, with this petition. Mr. Robinson: Okay. Mr. Heintz: So maybe we should go into executive session. Mr. Yoshimoto: You guys have time to – Mr. Robinson: So is that a motion to go to executive session? Mr. Heintz: Yes I’m moving we go into executive session. Ms. Malakaua: So we just go step out? Mr. Robinson: Just wait, so is there a second to that? Ms. Sumner-Mack: I’ll second it. Mr. Robinson: Alright so moved and seconded that we go into executive session to discuss the legal implications of 2020-04 and confer with Counsel. All those in favor say Aye. Okay, executive session. Sorry to keep running you back and forth like that. Motion and Vote: Mr. Heintz motioned to enter executive session to discuss the legal implications of 2020-04 and confer with Counsel. Ms. Sumner-Mack seconded. All members voted Aye. 11:23 a.m. The Board moved to Executive Session * * * * * 11:41 a.m. The Board returned to Regular Session Mr. Robinson: We’re still under discussion regarding petition 2020-04, we’ve already taken the action of writing a letter to the State Ethics 37 Commission and now we’re having further discussion after conferring with Corp Counsel. Anyone have anything they’d like to add at this point? Mr. Heintz: Yes, I would like to, I’d like to discuss the Mayor’s exchange with us a bit more and then I believe I may well have a motion with regard to the disposition of this particular petition. Mr. Robinson: Petition 2020-04. Mr. Heintz: Yes. Mr. Robinson: What page would you like to discuss? Mr. Heintz: Start on page 32. Mr. Robinson: Page 32, do you folks have this? Mr. Heintz: The minutes… Mr. Robinson: Here, take mine. Mr. Heintz: Part of what I’m going to say is already been stated but I wanna make sure we’re real clear exactly what we’re saying and it provides the basis for the motion that I wanna make. Mr. Robinson: Okay, go ahead. Mr. Heintz: The first thing I wanna say is, the Mayor’s response to the petition, the Board was not notified in advance, not the whole members anyway, that the mayor was going to show up. I was pleased that he showed up, but I didn’t not see anything, and did not have any reason to believe that he was going to show up to respond. I think the staff maybe found out the day he responded. And his response was 15 lines long, from which, as I understand it, he basically plays down his role and says it was all strictly the Governor, except once the Governor repealed the proclamation then the Governor basically assigned and he accepted the responsibility. And then, the discussion goes on for several pages and when, if one goes through it all, you’ll finally figure out that the Mayor also agrees that yes indeed, the road was closed for a considerable amount of time. And as I have established before, that considerable amount of time is the period from the initial protest all the way to July 30th it’s under the Governor’s responsibility. From July 31st until it finally opens up, after Christmas, it’s under the Mayor. And the Mayor unfortunately, I was hoping to interact why it took so 38 long, because I believe the Mayor may have had very good intentions, he may have overestimated his skills and ability to getting an agreement to get it open. But the fact is, for four months and 24 days under his authority, it wasn’t opened and I believe that that is clear from the record, that is clear, and I bought some newspaper articles, that is clear from Mr. Currie’s many citations of West Side and Hawai‘i Papers and correspondence. So I believe the facts are clear that the road is not, was not kept open for all citizens. And that some citizens took it upon themselves as a form of protest to close that road. And that I believe that people have a right to protest but once you begin to break laws, then we’ve reached this phase of civil disobedience and in our society, those who take oaths of office to enforce the laws and uphold the laws that it is their legal and moral responsibility to do that. And I believe the record is clear, the evidence is clear, that the Mayor did not succeed. I think he was trying but he did not succeed for four and a half months. And I guess, the people of Hawai‘i are very patient but we still have this terrible and unfortunate situation. So I believe the evidence is clear on that. It’s also clear, that the 2nd charge of your petition, or failure, or treatment impartially is having to do with a pad or an area that was created to make things easier and more efficient and less messy for the protestors. An area where they could work. And that also is clear that that happened and there’s no denying, I don’t think there’s any disagreement of fact that that happened. I don’t know how big a deal that is but, it did happen. And then there’s the third thing that’s in the record, and that is that the Mayor did indicate in his own words that, he was going to inform the protestors, and I think his was part of his way of getting the road open maybe, was to show good faith that he would let them know so they wouldn’t be caught unaware. So I think that’s also a concern that your petition raises. I don’t think that there’s a dispute that that happened, with his motivation and so on, this may actually have been a well-meaning point on his part, but it does treat the people of the State of Hawai‘i differently. By virtue of what roll they played in this event. And so, I’m willing and ready to make a motion that the petitioners charges are substantiated and support the evidence that there’s a violation of Section 283-(a)(3), that the people of the State of Hawai‘i, or the County of Hawai‘i are not being treated fairly and impartially and the laws are not being applied fairly and impartially to all members of the community. And this is a sad statement but I believe the Mayor has failed us on this this particular event. And I’m sad to see that officials that I supported did not perform as well as they should. Thank you. 39 Mr. Robinson: Okay would you like to make that in the form of a motion so we can have further discussion regarding that motion? Mr. Heintz: The…let the record show that, that long speech is the motion. Mr. Robinson: Okay. In the finding of the three violations… Mr. Heintz: The part, J that is relevant for the actual formal motion is that the Mayor has violated Section 283-(a)(3). And the reasoning, I mean, all the where as’s and stuff or all the citations of all the evidence, it’s in the record, it’s in newspapers, it’s in the petitioners. Mr. Yoshimoto: Right. Does motion also gonna include the fact that he’s no longer Mayor and not subject to the Ethics Code. Mr. Robinson: It should note that he’s no longer the Mayor. Mr. Heintz: Well yes, he’s no longer Mayor, and my, this motion just expresses dismay I guess and disappointment, that the, and a statement that the Mayor on those dates, during that time period, that was violating the Code of Ethics. This is a statement about the past, it’s not a statement about going forward. I’m not saying anything about the Mayor in the future. Mr. Yoshimoto: Okay. Mr. Robinson: This is just now, he’s no longer the Mayor, so not subject to, we understand that. Ms. Sumner-Mack: My question is why mention that at all, I mean everybody knows that. Mr. Robinson: Wait, wait. Let’s have a second so we can have further discussion. Ms. Sumner-Mack: I’ll second his motion. Mr. Robinson: Okay, go ahead. Ms. Sumner-Mack: But I don’t agree with the idea that we have to say Mayor Kim is no – it’s former Mayor Kim, we could say, finding is Former Mayor Kim but I wouldn’t call attention to that necessarily, everybody knows. Mr. Yoshimoto: Well, that’s not entirely correct, because for the record right, the Code and the Charter applies to all officers and employees of the 40 County. In other words all officer or employees of the County are subject to the Code of Ethics. As we stand here today he’s not longer and officer or employee of the County. So, it could be argued that he is no longer subject to the jurisdiction of the Board of Ethics since he’s no longer an officer or employee. So what the Board is actually doing then is issuing an opinion that is not legally binding upon him, right so I think that we need to make that for the record because it’s clear. Cause this Board has taken the position in the past that it has again, had no jurisdiction over people who are no longer officers or employees and just dispose of those other petitions in this particular way. I recognize the fact that this matter has gone on for a long time and so the Board wants to, my understanding is, and you correct me if I’m wrong, the Board wants to.. Mr. Robinson: Deal with it. Mr. Yoshimoto: Deal with it, in the best way that it can, given the circumstances that we have cause we can’t change the facts right. So the facts are is that the Code does not apply to someone who’s no longer an officer or employee, but it doesn’t change the fact that these things did happen which I think Larry articulates. I just wanna make sure that that’s there for the record. Ms. Sumner-Mack: I withdraw my objection. Ms. Malakaua: So, you’re stating that he’s no longer an employee however at the time of this petition he was. Mr. Robinson: Right, right. And that’ll be clear. Ms. Malakaua: Okay, and they’re gonna try to make --- okay. Mr. Robinson: Yes Mr. Wiseman. Mr. Wiseman: In other words, yeah along with what J said. Although the Code of Ethics does not apply to Mr. Kim at this time since he is no longer a Mayor, while he was mayor, something like that. But my concern is I can go along with the Motion as far as finding the unequal treatment by the authorities but I’m still not so clear that the Mayor the full responsibility for that, and that’s where, so my finding is that yeah there was unequal treatment and the authorities weren’t, you know fulfilling their obligations to protect everyone equal and enforce the laws equally. However I’m not, I just don’t have enough at this point to say it was the Mayor’s responsibility. 41 Mr. Robinson: Okay, any further discussion on the motion before the board? Ms. Nakanishi: Weren’t there other people named in the petition other than the Mayor, who are still around? Mr. Robinson: I don’t think so. Mr. Yoshimoto: No. Mr. Robinson: No, just the Mayor. Mr. Heintz: Can I ask that - David, this question is to you. I’m reading from the Mayor, the Mayor’s own statement says he notified me, the Governor notified me and all representatives of the County government, the access to Mauna Kea mountain was now to be open and was under the responsibility of the County Government of Hawai‘i. That’s the only time when we took any kind of authority at all for the project up there. So, he is saying that he took responsibility and that point, but the road remains closed for 14 months – 4 months so on, so these are the Mayor’s own words and then it goes on – Mr. Wiseman: I’m glad you pointed that out. So, in any, you know of course in any decision we would wanna quote what he stated – Mr. Robinson: Correct. Mr. Wiseman: As far as some basis for our findings. Mr. Robinson: Correct. Mr. Wiseman: Okay. Mr. Robinson: Okay. Any further discussion? Nan? Ms. Sumner-Mack: I think some of the uncertainty in this is that the Mayor talks about the road being open and his concern at that time seems to have been to make sure that it was open for the employees to go up if they needed to, but not the construction people and I don’t know what he meant about the general public. All I know is that I wasn’t, I was discouraged from trying to go up there. Even to drive saddle road. So, I don’t know what we’re really voting on, was it open or was it closed…For the general public? Mr. Wiseman: I think it was open subject to the protestors allowing it to be open. Not the authorities. 42 Ms. Malakaua: It was closed up until – Mr. Wiseman: You know, if they wanna let someone pass, they could do it. Mr. Robinson: Any further discussion on the motion?...Okay at this point, all those in favor of the motion say Aye? Mr. Wiseman: Could we restate the motion again please. Mr. Heintz: You want me to restate the motion? Mr. Robinson: Please. Mr. Wiseman: He could read it back from the record. Mr. Heintz: The motion was that the Board finds that the Mayor has violated the Code of Ethics, Section 283-(a)(3) and okay, and then, J will fill in what the actual language is of those, of that section. What it amounts to is, he has not treated the citizens of Hawai‘i fairly and equally. So he’s violated the fair and impartial section. Mr. Wiseman: Okay that good. Mr. Robinson: There are three points in there – Mr. Heintz: Yeah in all three of those, you need those again? I mean it’s all in the record, David. Mr. Wiseman: No, I don’t need those. Mr. Robinson: Okay, so moved and seconded. We’re asking for a vote, all those in favor say Aye. Did you say Aye Denise? Ms. Nakanishi: Yes. Mr. Robinson: Mr. Wiseman? Mr. Wiseman: Aye. Mr. Robinson: Aye. I’ll say Aye. So we have five Aye’s on that. So, that’s in regards to your petition. And then we’ll also write to the State Ethics Commission as well. 43 Ms. Malakaua: Appreciate it, and I thank you guys very much for speaking with Kim and Kamelamela too as well. Really bringing it a little bit more to light for everybody. Mr. Robinson: We just thank you for your patience. You folks have been stalwarts and we appreciate that. Thank you Mr. Nathaniel. Happy Holidays. Motion and Vote: Mr. Heintz moved to find that the Mayor has violated the Code of Ethics, Section 283-a3. Ms. Sumner-Mack seconded. All members voted Aye. 10:59 a.m. The Board returned to Agenda item 4a * * * * * 6. EXECUTIVE SESSION (12:20 p.m.) 12:20 p.m. a. Review of the executive session minutes of November 16, 2020. Mr. Robinson: Okay the next item on the Agenda is the approval of the Executive Session minutes. There’s one noted correction, that the minutes actually say November 9, that’s corrected to November 16. Other than that, is there a motion to accept the Executive Session minutes of November 16th. Mr. Heintz: So moved. Mr. Robinson: Is there a second? Ms. Sumner-Mack: Second. Mr. Robinson: Okay moved and seconded, all those in favor say Aye. Motion and Vote: Mr. Heintz motioned to approve the Executive Session minutes of November 16th. Ms. Sumner-Mack seconded. All members voted Aye. 12:21 p.m. The board moved to Agenda item 7. * * * * * 12:26 The Board returned to Agenda item 7. Mr. Robinson: Okay good. Got that done. 44 12:26 p.m. b. Re-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. c. 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. Mr. Yoshimoto: I’m sorry did we, approve the financial disclosures and gift Disclosures? Mr. Robinson: We did they all got signed off. Do we need to read those into the record? Mr. Yoshimoto: Just the motion to approve it. Whichever ones that were. Mr. Robinson: There were two that were not returned. Yeah Riley…ok. Oh yeah Michael Yee, he didn’t put anything in here… Mr. Yoshimoto: So the only thing we’re accepting or are we accepting anything? Ms. Osorio: No… Mr. Yoshimoto: So Mr. Chairman, my understanding is Board members Wiseman and Nakanishi would still have to review those so then you don’t have to approve them today. Mr. Robinson: Right, yeah okay, until they get done. Ms. Nakanishi: I did mine…don’t you see my little DN on there? Mr. Robinson: Yeah, but Mr. Wiseman has to…right that’s all then. 12:27 p.m. The board moved to Agenda item 9. 7. CONTINUE DISCUSSION REGARDING 2021 BOARD OF ETHICS MONTHLY MEETING SCHEDULE (12:21 p.m.) Mr. Robinson: Now the next item on the agenda, getting through all of this, is the continued discussion regarding the 2021 Board of Ethics Monthly meeting schedule. Now a schedule was circulated I think everyone got a copy correct? 45 Ms. Sumner-Mack: I had a question. Mr. Robinson: Okay. Ms. Sumner-Mack: When I was being considered for serving on this Board – Mr. Wiseman: Can you turn the mic on I can’t hear anything. Ms. Sumner-Mack: When I was being considered for service on this commission, I had to meet with the County Council on the west side and that was the only time I had to go to the west side for this. And I’m wondering if it would be appropriate to consider, informally at least, to have at least one meeting a year of the Council on the west side. Just to give people over there, who live over there a chance to not have to drive over here but also to give a sense to the west side that they could come to, when things open after COVID-19 people might wanna come in and sit in again. So just a suggestion. Mr. Robinson: But otherwise the dates are fine? Yeah? Mr. Heintz: Yeah the dates are fine. Mr. Robinson: Okay. Mr. Yoshimoto: So we need a February 10th, alternative right? Because that’s not available. Mr. Robinson: Oh the 8th is… Mr. Yoshimoto: Huh, we do? Oh we have a revised, sorry I missed that. Mr. Robinson: Yeah there was a…Liza got all these new dates. Mr. Wiseman: I like Nan’s suggestion and I think it’s almost obligatory almost to accommodate that once in a while. So I think that could be on a motion at one of the meetings. Mr. Robinson: Right. When you - Mr. Wiseman: I’ve been thinking about that. Mr. Robinson: Right, when you do the announcements at the end of the meeting, like you could announce where the next meeting will be located. Mr. Wiseman: Yeah, yeah.