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HomeMy WebLinkAbout2021-01-07 Windward Exh D (Discussion recusal of a commissioner) WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JANUARY 7, 2021 A regularly advertised discussion on CREATION OF A NEW RULE RELATED TO RECUSAL OF A COMMISSIONER was called to order at 11:59 A.m. via live-stream online meeting, with Chairperson John Replogle presiding. COMMISSIONERS IN ATTENDANCE: Dean Au, Gilbert Aguinaldo, Joseph Clarkson, Thomas Raffipiy and John Replogle ALSO IN ATTENDANCE: : Malia Hall, Esq. (Counsel for the Commission), Jeff Darrow, Deputy Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Maija Jackson (Temporary Assignment Planning Program Manager), Rachelle Ley (Secretary to the Planning Director), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary) Discussion of creation of a new Planning Commission rule of practice and procedure related to procedures for recusal of a Commissioner. Secretary's Note: "—" indicates that there were technical and/or internet difficulties, which made the conversation inaudible. DARROW: Mr. Chairman Item Number 2 on Administrative Matters this is discussion of creation of a New Planning Commission rule of practice and procedure related to procedures of recusal of a Commissioner. There was a situation that arose in the Leeward Planning Commission and this matter came to light and the Leeward Commission asked that there be discussion at the Leeward Planning Commission. That was discussed at their last December meeting, I believe that's correct maybe it was January. But, we did mentioned that we were take both of the items that were placed on the Leeward agenda to the Windward Commission as well. So, Items 2 & 3 will be presented today, our Corporation Counsel Malia Hall will be addressing Item Number 2, I'm going to share my screen so that she can be able to present the training and discussion. Give me one sec I'll be right there. Okay. HALL: So, as he sets that up I'll just begin talking our rules of practice and procedure do not have anything about recusal. You've been doing it on a voluntary basis. If a Commissioner feels they have a conflict or even a perceived conflict or an appearance of a conflict they usually they will either ask me about it or they'll just recuse themselves. So, the Leeward Planning Commission was concerned that we would have an actual rule so that we could have some guidance and so I looked through all the other Boards and Commissions and I found the Merit Appeals Board (MAB), the Board of Appeals (BOA) and the Board of Ethics (BOE) all have a very similar rules and they put it under as disqualification of a board member. So, we'll show you their rules and this is all just a pre-discussion in a sense of you can think about it because of course we would have go to a joint Commission and you would have to vote on this and in order for it to be a majority of the joint Commission in order for it to become a rule. 1 EXHIBIT D Power point slide shows the Merit Appeals Board Disqualification of a Board member. I'm not going to read the whole thing you guys can go ahead and review it and we'll leave it up for a little bit. If you guys have any questions. The basics of it is an Applicant could if they thought that perhaps a Commissioner had a bias or prejudice they could send a petition to the Board and ask them that they review that and that the Commission members basically, this is Board members because they are a Board but the Commission to review that and then the Commission, if the Commission member decided that they didn't want to recuse themselves then the whole Commission would vote on whether they deemed that that Commissioner has a biased or a prejudice or not. So, as you see, before you they have to state all the facts and the reasons it can't just be there really has to be its set up to show what the perceived bias or prejudice would be. Can we move on to the next slide Commissioners or did you want to continue to read this one. It's pretty much really similar. Same one, this one is any party to the preceding basically can file an affidavit and bring it to question a Board member or a Commission members bias or prejudice about the application that you are reviewing. This would most likely only come into effect when you guys are reviewing actual approvals and denials. With recommendations I guess we can discuss that as a Commission if you guys want to move forward with developing a rule if this would apply to recommendations as well or just where you guys have the authority of approval. Next slide, this is the Board of Ethics which is very similar. The Leeward Planning Commission had asked for bias and prejudice definitions. These are actually from the Black's Law Dictionary and this is mostly geared to criminal law. So, those other rules that were included don't actually define bias or prejudice so it's kind of left to the discretion of the Board or Commission members to look at the situation case by case and decide on whether that Board member or Commission member has a reason to be recused or disqualified as they put in those rules. CLARKSON: Malia? HALL: Yes. CLARKSON: I have a question, you mean there is no State or County law already in effect governing bias or this issue among all these I mean County Council, any public decision maker should be subject to some law that requires their recusal if there is that obvious bias and isn't there, there's nothing out there that— HALL: When I said there is no rules the Planning Commission rules do not contain anything about the process of recusing yourself or anything like that. If you wanted to go through the whole conflict of interest or fair treatment those are contained in our Code of Ethics which would go to the Board of Ethics. But if we are looking at just our Commission members and what they are doing, you could as a Commission member if you had a question about whether you should appear or not you could as an Officer of the County go to the Board of Ethics petition them and say, hey, this is what I'm thinking about, I'm thinking of sitting for this application do you guys think that I have a conflict or any sort of bias or I don't think they use bias or prejudice in our Code of Ethics it's more of a fair treatment or conflict of interest terms. 2 EXHIBIT D So, that would be for County-wide officials and officers would petition the Board of Ethics for those kind of decisions. This is specifically just for the Commission, the Planning Commission when a Commissioner has or mostly basically in these ones unless you include other situations this is when an Applicant believes a Board member or Commission member has a bias or prejudice and they want that reviewed prior to the reviewing of the application. CLARKSON: Okay, I'm just surprised that there is no body of law that covers this sub-feeling and conflicts of interest that would already apply to Board members and Commissioners. HALL: Yeah, I mean if the biased, prejudice laws applies to judges like sitting judges. I'm guessing that's probably where they actually got these rules from because they are very similar to the Hawaii Revised Statutes rules on bias or prejudice as related to judges in courts. But, specifically for Commission members of the County, no. CLARKSON: Thank you, thank you. RAFFIPIY: Question, so, it's the Applicant that has to file the petition, what about let's say somebody that protests or in opposition to a certain project. Could they file a petition against a Commission member if they perceive that that Commissioner might have a prejudice or bias? HALL: Yes, if Jeff if you'll go back to the actual rule slide. It allows for any parry to do it, well these ones do. RAFFIPIY: For any person. HALL: Yes, no, any parry to the, like so if somebody intervened and made it a contested case then they could then submit an affidavit to question bias or prejudice. But if they are not a parry to the actual application like the Applicant or the person contesting the case than they wouldn't have standing to file this, but again these are other Board rules so if you guys would want to tweak that with yours you could. But opening up to a broader like to any person can file would be yeah, might create more issues. RAFFIPIY: I see. Thank you. HALL: Yep. AU: Malia, I have a question. HALL: Sure. AU: So, I served on the Board of Appeals for five years and I did read through this when I served on. Well, I guess I don't have a question, I just want to support this because we need to have a set of guidelines for us as Commissioners, I think all Commissions should have a set of guidelines. Every Commission should have something like this in their rules and that's something I didn't see when I got back on this Commission. But I support it, I think it's a great 3 EXHIBIT D idea, I like how it's written now, and I favor any type of tweaking that anybody would do to it, but we need a layer of rules for us Commissioners. I've said in the past too we're here and we are volunteering, everybody around us is getting paid everybody is getting paid except for us five on this call. So, we are volunteering, and we need a layer another layer to protect us and I support it. HALL: Alright, sounds good I don't foresee I guess Jeff could speak to when a rule change would come up, I don't foresee it happening anytime in the immediate future but, I'll let Jeff speak to that. DARROW: Thank you Malia. At the Leeward Planning Commission, they asked after the training for staff to work on a rule and bring it before to the Commissions to be able to add into the Planning Commission's rules. We will put together a rule and bring it forward what we will probably do is present it to the Commission's first just to review to make sure that they agree with it or if they have any concerns or suggested changes then when we come together as a Joint Commission, we can bring that forth. It would most likely be housed in the general rule which is Planning Commission Rule One. There are other changes that we are looking at shortly to the Planning Commission Rules and we can incorporate this particular change with those changes as well. One of the changes we are looking at is based on the recent Bill 20-60 which had to do with coastal zone management and SMA and shoreline setbacks so based on that change in law we are incorporating those changes into our rules and we'll be bringing that before the Commission. The one thing that I did want to mention that I mentioned at Leeward is the question why is this coming before us, we've never had an issue like this and I would agree in all the years I've been doing this I've never seen an issue come up comparably 99.9 percent of the time Commissioners are very sensitive to their connections outside of the Commission and if there's any type of conflict or perceived conflict they want to make it known and they want to ask their fellow Commissioners if they feel they need to be recused or if they may feel themselves it is a clear conflict I'm going to recuse myself from this application. But again, there need to be that clarity that if there is a perceived conflict or conflict and that particular Commissioner is not making that known or agreeing to recuse that there is a process available to be able to address that so that's what the rule is for. CLARKSON: I would like to ask that there be some guidelines also promulgated along with the rule that covers what kinds of conflicts, what kinds of evidence of bias or prejudice Commissioners should consider if an application for disqualification comes before the Commission. Because I think we need to have some pretty clear guidelines ahead of time, so we aren't thrashing it out just in the context of an ongoing application for disqualification. DARROW: Okay, we'll try to address that and put something together I think what we defer to is just what Malia had brought up is the definition of bias and prejudice and we have to look at that and make that determination. But we'll try to come up with some examples and guidelines on that. 4 EXHIBIT D CLARKSON: One other question was there something that happened at the Leeward Commission a Commissioner who a lot people thought should had obviously recused him or herself and they refused to do it? DARROW: I won't go into specifics, but an Applicant had submitted a request for a Commissioner to be recused based on previous submittals or letters that were written regarding the project and so that's what prompted the discussion of all this matter. There was apparently a perceived conflict but on the part of the Applicant. REPLOGLE: So, oh go ahead. DARROW: I'm sorry. REPLOGLE: No, I was just going to say I agree with what Malia said in regards to the people filing or bringing up these conflicts. Should the parties to whatever is going on like yeah not just everybody in the world can file these things and now your bogged down with that. Anyway, that's all. Anything else Mr. Darrow? DARROW: I think that concludes Malia did you have anything else to add? HALL: No, nothing further. Thank you, guys for your discussion and direction is helpful and Happy New Year. The hearing was adjourned at 12:16 p.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary Windward Planning Commission 5 EXHIBIT D