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HomeMy WebLinkAbout2020-12-17 Leeward Exh C (Discussion re recusal of a commissioner) LEEWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT DECEMBER 17, 2020 A regularly advertised discussion on CREATION OF A NEW RULE RELATED TO RECUSAL OF A COMMISSIONER was called to order at 1:27 p.m. via live-stream online meeting, with Chairperson Nancy Carr Smith presiding. COMMISSIONERS IN ATTENDANCE: Nancy Carr Smith, Barbara DeFranco, Perry Kealoha, Max Newberg, Mark Van Pernis, and Michael Vitousek ABSENT AND EXCUSED: Faith"Faye" Yates ALSO IN ATTENDANCE: Malia Hall, Esq. (Counsel for the Commission), Zendo Kern (Planning Director), John Mukai, Esq. (Counsel for the Planning Director), Jeff Darrow (Planning Program Manager), Jessica Andrews (Planner), Tracie-Lee Camero (Planner), Rachelle Ley (Secretary to the Planning Director), and Noriko Sauer(Leeward 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 indiscernible speech due to internet/technical difficulties or simultaneous talk. CARR SMITH: Okay, we'll move to Agenda Item number three, the discussion of creation of a new Planning Commission rule of practice and procedure related to procedure for recusal of a commissioner. HALL: Hello. CARR SMITH: Oh, hi, Malia. HALL: Jeff will be putting it up on your screen, but we sent it ahead of time because it's, you know, a big block of text, and so, what I did was kind of just look through all the different boards and commissions and see what they had. I thought Council had one, but I was mistaken. So, what you got was basically from the Merit Appeals Board, the Board of Appeals, and the Board of Ethics, which is their rules on disqualification of a commissioner, or a board member. I don't know exactly you can just go to the first slide, Jeff. DARROW: Okay, are you able to see the screen? HALL: Yup. 1 EXHIBIT C DARROW: Okay. Oh, what happened there? HALL: Well, here's the definitions, if you like, oh, did you go backwards? DARROW: You know what happened, I think a slide jumped, so I'll come back to that when you deal with that, but this is the first one. HALL: Okay. Basically, it says what I, I just told you guys. I don't know exactly where they got this rule from, but if I had to guess, I would say that it's modeled after the rule for judges based on bias and prejudice that there is a similar rule in our Hawaii Revised Statutes that, if somebody coming before the court thinks the judge has a bias or prejudice, they can submit an affidavit just like it says in these rules, and the judge will have to declare that impartiality or if whether or not they have a bias or prejudice. So, I just present this to you guys, again with the reminder that in order to adopt any of these, it would have to go to a joint commission as Jeff said, so even if you guys were all for it, if Windward isn't, it needs to be adopted by a majority of both, both commissions. So, I believe that is eight members would have to approve to adopt something to this matter. So, I don't know if there's any questions; I can entertain that. Included in here is also legal definitions for bias and you can just jump to that slide. CARR SMITH: Oh. HALL: Oh sorry, go ahead. CARR SMITH: No, that's what I was wondering, what's the legal definition of, of bias or prejudice. HALL: Yeah, we can jump to bias first. It's kind of small print in, small and big at the same time, but I think--can I get it double spaced here Jeff? No,just joking. DARROW: I know, I wanted to fit it all on one screen. [Laughs] HALL: I know. DARROW: Sorry. [Laughs] HALL: I think the point of the matter is basically through all of this, having an inclination or being bent, or it's basically, do you have a pre judgement on this matter, and basically no matter what they say to you, you're already going to approve or deny, right? No matter what the evidence says, this is what I'm going to do. And so, we all have biases in a certain way, but is that bias so huge that it's going to affect your ruling and how you look at this matter without giving the applicant a fair shot. So that's--when I think about bias, I think that's in a legal term, that's what it is, can you be impartial even with what you know about certain things, or if you have a bias about, on certain matters; can you still come to the table and be impartial and not pre- judge a matter before even hearing what they have to say and their evidence that they presented? And then if you go to prejudice, Jeff, it's pretty much the same, I mean it's the same but different, right? I mean, it's, there's a thin line between the two but the idea is kind of the same 2 EXHIBIT C where, you don't wanna make a pre judgement or fore judgement as they say here. You shouldn't be leaning to one side, you should be listening to everything and then after the whole record has been created, reflecting on the entirety of that record everything that's been presented, the public testimony, the applicants, what they have presented, and the discussion that you guys have and then a decision should be made. Not before that happens, right? Not before you've received all the information that has been put forth before you. So, I know that's a lot of words to look at, but I think in a nutshell, that's pretty much what it is, is that when you guys walk into this, if you can—if you don't feel like you can walk into this impartially then you should recuse yourself in that sense. On the other side of that, if we're talking conflict of interest, that's a whole different thing. That involves having financial, possible financial benefit to you or a family member. So, those are very separate issues. If you guys wanted to include language like that, I haven't found anything beyond the Board of Ethics, which is where most people would go if you're a County officer to, to see if you have a conflict of interest. That's within their jurisdiction. So, I hope that kind of, kind of sheds light on the disqualification or possible recusal of members or commissioners. And if you guys have any questions, I'm here to answer them. CARR SMITH: Alright, thank you. Could you drop down the presentation please? Thank you. Great, that was helpful, and the extra definitions were helpful as well. I had asked for this because I do feel like the commission should have a rule on this so that we have something, a guideline to go by. How do the other commissioners feel? Mr. Van Pernis? VAN PERNIS: Because of a, an attempt to disqualify me in an earlier proceeding, as a lawyer I did a lot of research on this and I spoke with Ms. Hall. First of all, we all have bias', Mr. Vitousek, regarding archaeological features, Max regarding employment and local people taking jobs, myself regarding extensions of judicial conditions. This is a bias. It sounds as if the accused person, if they state I can wait till I hear all the evidence is described, that's all it takes to defeat any sort of attempt at disqualifying somebody from prejudice or bias. I'm not comfortable with the definition of bias obtained from the legal dictionary. I know that the case law that is referred to in there is all over a hundred years old. There's nothing current, and if somebody can be disqualified for a bias after they say I can be objective, and listens to all the evidence first, I think that's all it takes to defeat an attempt to disqualify. The other thing I'm concerned about is what if the alleged prejudice or bias appears at the hearing itself? For instance, somebody discloses one thing or another that might raise a question of bias or prejudice that occurs in this commission. So, when you say when somebody's got to file something beforehand, five days or whatever,what happens if the alleged bias or prejudice appears during the hearing, or arises during the hearing? I think the orders that were shown as, or the rules that were shown as examples don't really cover everything and apply to the Planning Commission. For instance, some of these orders may apply to a bias or prejudice against a person appearing before that board, rather than an issue or an application. So, I think a little more time and discernment are needed on this issue. CARR SMITH: Thank you. Commissioners, any other commissioners have comments about this or want to weigh in so that we know how you feel? Go ahead Max. 3 EXHIBIT C NEWBERG: Thank you, Madam Chair. I, you know, I echo that. For me it's more of a learning process. You know, what constitutes the definitions, so I do appreciate, one, the request for a little more learning on this, and also, for myself being involved in such a broad industry within the state, and being part of a large organization, it sometimes is dismaying of do I mention everything, a conversation three years ago? To my knowledge, looking into this initially, it was more the conflict of interest, which would be, you know, do you have anything to financially gain, what have you. Just as full disclosure, I'm paid on salary; I'm paid like every other carpenter within our organization. Yes, it's my job to monitor every construction project on the west side of Hawaii Island, but initially our involvement in all of that is just that all contractors, whether they would be a part of our organization or not, that they follow the law. It's not anything whether a project is partnered with us or not, but more so we feel we are in a good business climate in the State of Hawaii and beyond, that if every contractor that's working is soon to follow the letter of the law within the state, then we feel that all the more better that business conducts itself fairly and aboveboard. So, I, I'm going to be more towards the point of what constitutes something and what doesn't since any time somebody starts pushing around dirt, I'm normally on the phone trying to see who may be involved and what's coming up next. CARR SMITH: Understood. Yeah. Mike, go ahead. VITOUSEK: So, correct me if I'm wrong or don't understand, but it seemed like a lot of the definitions are kind of pertaining to criminal law. Is that right? HALL: Yeah, the, the law dictionary has, the majority of them are criminal cases, yeah. VITOUSEK: So obviously there's a pretty big difference between a criminal proceeding and a commission hearing, and rules of evidence, and that kind of thing. So, to me, it's kind of apples to oranges, when you're considering the letter of the law on bias and prejudice in a criminal case versus whether or not that bias or prejudice affects your ability to make a fair and impartial ruling during this commission proceeding. I feel like language is needed to make us similar to the other boards and commissions, but the idea being that it's not tied to that strict definitions in the criminal, legal proceedings but rather that we have the opportunity to review whether any bias or conflict of interest prevents you from being fair and impartial and discharging your duties as a commissioner. CARR SMITH: Very good. Perry? KEALOHA: I guess my position is, like the others, we're all employed within the community, I work for Kamehameha Schools, who is the largest private landowner, so there is a lot of issues that come up with Kamehameha Schools and I automatically expect to recuse myself from any, you know, any agenda item that would pose a benefit or challenge for Kamehameha Schools. So, for me it feels pretty cut and dry. I think we know, again, I think we all should know when they should step out, and it behooves us to recuse ourselves before we need to be recused, so I don't see a huge problem. 4 EXHIBIT C CARR SMITH: Yeah, I understand. I mean, most people do see when it's time to do that, but when, when you have people who don't necessarily see that then it causes you to feel like you need to have guidelines to help you decide what the situation is. Barbara, what's your opinion? DEFRANCO: Well, I think it's a good idea to have general guidelines. I think all of us have a strong moral compass and we know if we're, when we step into a commission like this, that we should step in looking at all the facts and trying to make a decision that's based on what we're being presented with and not our own personal agendas. When our own personal agendas are there, then we either need to announce them, or we need to recuse ourselves, and I think a simple set of guidelines that maybe isn't associated with criminal law would be good. I'm thinking that maybe it would make more sense to put it in something that had to do with commissions, but I think it's a good idea that we, we all can read it what it means when we need to step out. CARR SMITH: Well, at the commission level we, we basically have contested cases. That's what this is, it's not a formal contested case, but it's what Board of Appeals is and that's the language that they use as well, so. DEFRANCO: Yeah. CARR SMITH: Staff, do you have DEFRANCO: But I - - - so it's sort of came up because if someone who's appearing before us that's presenting material ask that one of us be recused because of whatever it is, I think this is why this is sort of on the table right now, and I think that we as a commissioner should be able to respond, "no, I don't have that bias anymore, that happened 20 years ago, I don't even feel that way now," I mean, you know, I think we all look toward the integrity of the commission itself. I think we just have to understand that. CARR SMITH: Yes Mark? VAN PERNIS: Before I get into the procedural problems, we'll use Faye as an example. Faye has a bias against a lot more traffic in Kohala, does that mean an applicant from Kohala, where the project in Kohala is going to generate traffic moves to disqualify her because she has a feeling, or a bias, or experience with the traffic? I don't think so. Now, procedurally, I've already mentioned the problem with a bias or prejudice, and prejudice is better defined, arriving after the five days when these rules would first [inaudible] even during hearing. I think that there should be some time limit, better than five days, by which an applicant has, has to allege somebody should be recused and submit an affidavit so that the parry accused has an opportunity to respond. Also, I think there should be time limits, and in my case, I wrote a letter, they never, four or five years ago, which they allege was biased. Well, it wasn't but, I think that's not relevant to the feeling now, or the situation now. And also, procedurally, what if a recusal results in a lack of a quorum? What happens then? I think this proposal will only have some merit if to very generally say in which to [inaudible] so as to not cripple the commissioner, commissioner. I think that it needs a lot more work and a lot more generality. It's going to generate more work and give the applicant more tools to pick and choose who he wants to resolve his application, and as I said it's going to make a lot more work for us. 5 EXHIBIT C CARR SMITH: A lot more work for who? VAN PERNIS: Make a lot more work for us. We're going to have to decide all these things. CARR SMITH: Got it. Okay. Mike? VITOUSEK: Just in a continuation of Commissioner Van Pernis' discussion about bias, again, I think that the key with these proceedings is whether or not the personal bias affects the commissioner's ability to be impartial. So, if we're using the example of somebody who opposes development because of traffic, and who states that they will not approve any permit ever that will lead to more traffic, that's displaying an ability, a lack of ability to be impartial, and I could understand why that person would be recused. Now, if somebody says I have concerns about traffic, but I will review each application on the merits of that application and weigh the benefits and detriments of that application, then they're showing an ability to be impartial and weigh that. So, to me, the, the presence of bias is the preconceived ideas of, of what bias is. I think we need to focus on whether or not that individual has the ability to be impartial and including language in our rules that allow the commission to determine that in the event that the individual commissioner won't. And keeping us in line with the other boards and commissions is appropriate. We're not here voting on any specific wording of that today, we're just discussing this, it's agendized for discussion only. So, I, I wanna say again that I think that it is appropriate to have some language about when a commissioner should either recuse, be recused, and then procedures for how the commission can vote for the removal of the commissioner. But I don't think it needs to be tied to the legal definition from criminal law of bias, I think it has to be included in there that the ability of the commissioner to remain impartial and fairly review the merits of the application are, are important. And, and you know, as in your previous example, Commissioner Van Pernis, about the time when you were requested to be recused based on a letter that came back years ago and you said, "I don't believe that that letter affects my ability to be impartial," and the commission agreed with you and we continued. So, I think that having that procedure in place isn't harmful and we're still at the end of the day relying on the, the reasonable judgement of the commission to determine whether or not the bias affects the commissioner's ability to be impartial. CARR SMITH: Thank you, Mike. Malia, did you want to add anything more? HALL: No, I'm just saying I pulled up those definitions because I was asked to pull up legal definitions, but they aren't necessarily tied to these board rules. Just as a clarification. Every, the bias and the prejudice is basically, from these board rules, they don't have definitions linked to them within the, within those board rules so, therefore it's left up to the discretion of the board members, which probably would be the same with you guys if we left that to your discretion as commissioners to view the situation case by case, and judge on whether that person can be or cannot be impartial. KEALOHA: Is there a point where a person's partiality is clear and obvious, and where corp. counsel would step in and say a person should recuse themselves? 6 EXHIBIT C HALL: I have been asked for my advice and I will give it, like if a commissioner comes to me prior to or during a commission and asked me, "hey, this is my situation, what do you think I do?" I will give them advice on an individual basis. If it seems like, yeah, I mean basically, if they make a statement like Mike has stated where they're like I don't care what they present, you know, I'm denying, then you know, there's a possibility that I would step in at that point, but for the most part, you know, I let you guys self-police in that way, but if it's so blatant that I would know that, you know, approve or deny would be an automatic appeal, then yeah, most likely I would have to step in at that point, but luckily we haven't gone there so, let's not do that now. CARR SMITH: Jeff? DARROW: You know I've been kind of doing this for a while and in all the years that I've been working with the commissions, most commissioners are hypersensitive in the sense that if there's any hint of bias or conflict, they will either make it known and request to their fellow commissioners whether they feel they can continue in an impartial manner, they will make a statement that they can, or they will recuse themselves on their own. In all the years I've been doing this, I've never seen it to where the recent incident happened where it was brought up that somebody should be recused, a particular commissioner. So, I think that's why we're here. It made us take a look at whether or not there are any rules for this particular situation, and we don't have rules for that. In looking at the different rules that, for the boards that Malia provided, it seemed like a reasonable rule, you know, it doesn't appear to be a rule that is brought up by a fellow commissioner, but by an applicant. So, if an applicant feels there's a particular bias, or impartiality on a particular commissioner, they can file an affidavit and that can be addressed by the commission as well as the particular commissioner that the affidavit is geared towards. So, I mean, staff can try to put something together if the commission wants us to present back to the commission to look at, it doesn't seem like it needs to be complex, it can be as simple as what we're seeing, a simple rule that we can add into the general rules for the Planning Commission. So again, I, you know in all the years that we've been doing this, I, I believe 99.9 percent of the time everybody has been super aware of their, their connections that are going on and have made them known. CARR SMITH: Thank you very much. Director Kern, would you like to weigh in on this topic, if you've been able to listen, and then we'll move on. Just wanted to give you an opportunity. KERN: Yeah, I'll, overall, I'm just listening and absorbing. Jeff is on it, John Mukai, and to be honest I'm also simultaneously doing a bus hub meeting at the same time getting ripped apart so, doing my very best in all directions. CARR SMITH: No problem. MUKAL I think I would echo Jeff's CARR SMITH: John, do you want to say something? 7 EXHIBIT C MUKAL Yeah, I would echo Jeff's comments on this matter that, you know, generally, generally the board members themselves have a pretty good sense of what's fair. So, and I don't think there's ever been problems that I've ever seen in any of the other boards that I've advised. CARR SMITH: Alright. Thank you very much. So, with that I'd like to ask you, Jeff, to go ahead and have staff put something together for our review. Appreciate that, I know it's another thing, but DARROW: No problem. CARR SMITH: Thank you very much. DARROW: Thank you. The hearing was adjourned at 1:56 p.m. Respectfully submitted, Kim Tanaka Secretary to Boards and Commissions 8 EXHIBIT C