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HomeMy WebLinkAbout2008-12-10 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION' Wednesday, December 10, 2008 - 10:00 a.m. 101 Aupuni Street, Suite 230 Hilo,, Hawaii 96720 Present: John E. K. Dill, Chair Ann Lum, Vice Chair Marilyn Nicholson, Member Diane Gentry, Member Arthur Martin, Member Renee N. C. Schoen, Deputy Corporation Counsel Adrianne N. Heely, Deputy Corporation Counsel (Maui) Mary E. Crosson, Secretary for the Board Also present: Lincoln Ashida, Wayne Joseph, Joseph Kamelamela, Martha Rodillas 1. CALL TO ORDER The Chair called the meeting to order at 10:00 a.m. and welcomed Adrianne Heely, a deputy corporation counsel from the County of Maui, who was present to represent the Board on Petition No. 2008 -10. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS No one from the public was present. 3. APPROVAL OF MINUTES Minutes of the November 12, 2008, Regular Session. Motion and vote: Mr. Martin moved to accept and file the Regular Session minutes, Ms. Nicholson seconded the motion, and all members voted aye. Minutes of the November 12, 2008, Executive Session. Motion and vote: Ms. Nicholson moved to accept and file the Executive Session minutes, Ms. Gentry seconded the motion, and all members voted aye. 1 Minutes in italics are verbatim. 4. COMMUNICATIONS a. Communication No. 2008 -110: Letter from Renee Schoen to Dan A. Cole dated November 26, 2008, informing him that the Board is unable to hear his petition as submitted. b. Communication No. 2008 -113: Letter from Dan A. Cole to Renee Schoen dated December 1, 2008, in response to her November 26, 2008, letter. CHAIR: Renee, could you give us a quick synopsis of the background of this communication from Mr. Cole. SCHOEN: Sure. We received in our office a petition on or about November 5th. Upon reviewing the petition and after meeting with the Board Chair, the Board Chair asked that I prepare the letter, which is Communication 2008 -110. In response to that letter, Mr. Cole provided a response, which is Communication 113. CHAIR: And just to interject, Renee made the response at my direction according to Rule].]]. We looked at the communication from Mr. Cole, and his first communication was kind of broad, not very specific in terms of Code violations and who was violating the Code. So at my direction Renee wrote back to him, asking for a more specific description of violation, and which he responded with —which Communication? SCHOEN: 113. CHAIR: 113. So basically what I'd like to do -1 don't want to decide on this petition today. I just would like the Board to discuss whether or not this petition is concise enough to place on our agenda for next month's meeting, whether or not it's something that we can decide upon. Have you guys all got a chance to look at those communications? L UM: Yes. I'm still in confusion about who or what entity the petition is really about. In this kind of case, do they usually reftle the petition cover sheet, when you're asked to clarify, or do they just – SCHOEN: I don't think there's a particular procedure. In this case I asked Mr. Cole to resubmit an entirely new petition articulating more specifically the allegations and the person against whom the allegations were against. And that's what he submitted. And so pursuant to your rules, this Board can decide whether or not it has sufficient information to hear the matter, or you could also reject it. LUM: I would have trouble rejecting it, because I really don't understand it. So I would say that in my opinion, in order for our Board to hear a petition, it needs to be maybe —I hesitate to use the word simple, but— CHAIR: - -Well, I think- 2 LUM: - -it has to be understandable to us, because then it's not fair for us to try to act on something we don't understand. CHAIR: Well, that's why I think it's an argument to reject -- LUM: - -And maybe it's simplification— CHAIR: - -1 think that's an argument to reject it. That's one reason why the initial communication from Mr. Cole was sent back, asking for clarification. And his second, more detailed petition would seem to be also a little bit vague in terms of Code violations and who's violating the Code. I hesitate to have this Board act on something they don't understand. L UM: I – NICHOLSON: If I may say, the only thing I can see that's specific enough that we could possibly take an action on is on Communication 2008 -113, number 1, right here— L UM: - -But then where is that explained? NICHOLSON: Well, that's what I was looking for in the literature, is exactly where that statement was, because it just showed up in a newspaper article in West Hawai `i Today, so I'm not sure I even have enough to say, you know, did she really say that, what was the context of how it was said. But that's the only thing that I could get that was specific enough, and had enough detail, that- LUM: - -it comes under our purview. NICHOLSON: Yes. CHAIR: Yeah. That's the main concern I have, is that some of these accusations really don't fall under our jurisdiction. L UM: No. CHAIR: Well, let's stick to what we have to do here. We have to accept and file these two communications, 110 and 113, and then decide whether or not this warrants going forward and putting on our agenda for next month. LUM: So if we accept and file these particular communications, can we do that with, then, further ideas about action? CHAIR: Yeah. LUM: Okay. I move we accept and file the two communications. NICHOLSON: Second. CHAIR: All in favor? L UM, NICHOLSON, GENTRY and MARTIN (simultaneously): Aye. CHAIR: Okay. L UM- But I wonder, is there a way that Mr. Cole could be asked, could be advised, that we —the only thing that we found that was possibly something we could act on would be that, and if he would like to submit that as a separate petition? SCHOEN: Well, your rules provide that we can ask for more information from him, and I could do that on behalf of the Board, asking him to be more specific— L UM: - -More concise about what he- SCHOEN: I think it's going to be difficult, looking at what he submitted. LUM.• We need to give him the opportunity. We need to let him know that we're very constrained about what we can act on, and that if he would like to submit a petition— CHAIR: - -Why don't we do this, if I might make a suggestion. I think Marilyn has a good point about item 1, fair treatment, courteous, and fair and impartial manner with Ms. Naeole. Maybe we could direct a communication' to him, asking him to elaborate, saying that the Board thinks there might be a possible violation for this particular claim he's making in Communication 113, and if he would like to do so, elaborate on that and the specifics of that situation. LUM: I would not like to say we see a possible violation. I would like to say if we could see some —we're interested, we would be interested in hearing that. CHAIR: Okay. GENTRY. Afford him the opportunity to state his claims through the petition concisely. LUM.- Just one thing at a time. Not a whole bunch at a time, but just this —that we could see— CHAIR: Well, we want to point out this number 1, right? LUM.- Number 1, um hmm. SCHOEN: Okay, what are you guys referring to? CHAIR: Communication 113, number 1, under— L UM- -- Second paragraph from the bottom. M NICHOLSON: And that referred to something that was in West Hawai `i Today, that a newspaper reporter had put in West Hawai `i Today, but we don't have any back -up in terms of what the context was, and anything to give us enough information to know- LUM: - -I think it should go back to this. SCHOEN The concern I have is that if you look at all of the documents that Mr. Cole submitted, it's very confusing— CHAIR: Um hmm. NICHOLSON: Yes, very. L UM: Yeah. SCHOEN: And he lists numerous persons, and if you want me to focus on this, just this particular one, what I could do is communicate to him that the Board has decided that the remaining allegations in his documents will not be decided by this Board— L UM: - -No, it cannot be. SCHOEN: The only thing that the Board would possibly look at is this allegation contained in Communication 113. CHAIR: I'd like to make that clear in a communication to him, that we're not going to focus on— L UM: - -but just that part, not the whole 113, but just that one part, that one paragraph. SCHOEN Okay, so the Board is finding that all of these other allegations in the documents— L UM: - -are not things that we can- SCHOEN -- submitted by Mr. Cole, this Board does not have jurisdiction to hear it, and that this Board will not hear those other allegations. LUM: But we would possibly —we would possibly hear, if he would resubmit just that— GENTRY.- - -The petition is just limited to this, this particular situation. L UM: The others belong to somebody else. CHAIR: Okay, are we all in agreement with that? NICHOLSON: Yes. CHAIR: Okay. Do we need to vote on that? 5 SCHOEN: If everybody's in agreement, I can do that for you. CHAIR: Okay, thank you, Renee. Moving on to Communication 2008 -111. c. Communication No. 2008 -111: Open Line, a publication of the Office of Information Practices, November 2008. Motion and vote: Ms. Lum moved to accept and file'the communication, Ms. Nicholson seconded the motion, and all members voted aye. 5. NEW BUSINESS a. Petition No. 2008 -10: from Wayne Joseph, regarding whether Lincoln Ashida violated Hawaii County Code Section 2 -83. CHAIR: Again, we welcome Ms. Adrianne Ileely from Maui. Because of potential conflicts of interest, she will be representing the Board and serving as counsel for us during this petition. One thing I'd like to bring up first and foremost is disclosure of potential conflicts of interest for the Board between Mr. Joseph and Lincoln Ashida, and just elaborate on that a little. Ms. Heely? HEEL K Mahalo and good morning, Chair, Vice Chair, and fellow Board members. Per your rules, Rule 1. 5, that gives you specific guidance in terms of whether or not you should disqualify yourselves if there's potential bias or prejudice. Specifically, I want to cite to you the last sentence of your Rule 1. 5, which says Board members may disqualify themselves by filing with the Board a certificate that they deem themselves unable for any reason to participate with absolute impartiality in the pending proceeding. So —and assuming that no affidavit was filed by the petitioner or respondent in this case asking you folks to disqualify yourselves, that wouldn't apply here. So if you guys feel that you can't be impartial in your decision - making, then a certificate must be filed with your Board, stating that you cannot be impartial. But 1 would recommend that you disclose the relationship, and if that's not going to affect your impartiality in making your decision, then it'll be okay to proceed. CHAIR: Okay, just to clarify —Mr. Joseph, Mr. Ashida, did you file any kind of affidavit relating to that? (No audible response). CHAIR: Okay. L UM: And everybody understands that some of us served on the Board with Mr. Joseph, and Mr. Ashida was our legal advisor at the same time. CHAIR: Do either of you have a problem with us presiding on this? JOSEPH: Not if you don't. 2 CHAIR: Okay. Does anybody? Okay. All right, Mr. Joseph— JOSEPH.• - -Thank you. CHAIR: - -Thank you for coming this morning. JOSEPH: May I make an opening statement? CHAIR: Sarre. JOSEPH: Mr. Chair,, first of all it's nice seeing you again, Mr. Chair— CHAIR: - -Same here— JOSEPH- - -Miss Vice Chair, members of the Board. Nice to see two new members here and that we have a full seating Board, which is —has always been a problem with this particular Board, but thank you. And thank you for being willing to be open, honest, and impartial in this matter. I believe Mr. Ashida has agreed to stipulate that he did write those two letters- ASHIDA: -- Absolutely. JOSEPH: - -that the Board has, that he did write it during Corp Counsel time and that he did write it as the Corporation Counsel. Okay? So being as that —I believe you have both documents before you. CHAIR: Could you have a seat, and then— JOSEPH: - -If you don't mind, I prefer to stand. I mean, I spent 30 years in a classroom, and standing is how I think, and if I sit —it'll be much more difficult for me to think while I'm seated. CHAIR: Okay. JOSEPH: I'm much more relaxed and comfortable standing. CHAIR: Okay. And now your opening statement – JOSEPH: Yes, I'm getting ready to do that. CHAIR: Okay. Okay, while you're getting ready— JOSEPH: - -I am ready— CHAIR: - -Okay, wait, hold on a second. 1 just want to make it clear that the reason why we are here are for two rules that were specified in your petition in the Hawai `i County Code of Ethics, Rule 2- 83(6)(3), you may not use County time, equipment, or facilities for 7 private business or campaign purposes, and also Rule — Section 2- 83(3), which states that you may not use your County position to secure or grant unwarranted privileges or treatment for yourself or others. The Board today, if we can focus on those two items and whether or not there is a violation here. Okay, Mr. Joseph, go ahead. JOSEPH- Thank you, sir. Just to give you a chronological event of this, I was running with four other people for the County Council seat held by incumbent Emily Naeole, and in that race, former incumbent Gary Safarik was also running, and myself along with two others. I believe on September 6`h all of us were invited to do a debate at the Pahoa Community Center which lasted for two hours, from ten a. m. to noon, and during that debate it was filmed by —I'm not sure who it was, but it was filmed and later put on the website. And I think that's relevant, because I think Mr. Ashida wasn't at the debate, and I think he got his information from watching the video. And he can clarify that later. But on September 91h, Mr. Ashida submitted a letter to Hunter Bishop which was placed on Hunter Bishop's website blog, and in it he criticized me for my statements that I made during that debate. And I'm perfectly fine with that. I'm perfectly fine with his criticisms. We've discussed these issues before, and when I served as chairman of the Board of Ethics, I had difficulties with certain cases, believing that Corp Counsel may have been in a conflict of interest. I am quite aware of the Hawai `i Rules of Professional Conduct, which allows Corp Counsel to have many different defendants, including the Board of Ethics while defending someone on the Council. In that Mr. Ashida decided to criticize me ten days prior to the primary, that's perfectly within his right and scope as head of Corp Counsel. And that he was diligently doing his duties, I totally agree with that. He also criticized briefly Ms. Naeole as well, because Ms. Naeole agreed with me by making one short statement, one short sentence. I'm truly not sure if she agreed with me or not, but she's not a co plaintiff in this petition. I think where Mr. Ashida overstepped his boundaries was that when he referred to Gary Safarik, . and when he referred to Mr. Safarik, he singled out Mr. Safarik as being correct. He singled out Mr. Safarik in a political race that the three of its were the three leading contenders. By singling out Mr. Safarik, I believe he erred in judgment and stepped over the boundaries of fair treatment. And he also signed with his letterhead —if you notice on the second sheet, Corporation Counsel, County of Hawai `i. I don't believe 1 submitted —the following day, Mr. Hunter Bishop posted on his website a statement saying,, "Was Ashida Playing Politics? " And if you don't have a copy of that, may I- NICHOLSON: We have. CHAIR: We do, we do. We have copies. JOSEPH: You have a copy of this? CHAIR: Hm hmm. JOSEPH: Now, if you go down to the last paragraph on the first page – CHAIR: This is the first paragraph of— JOSEPH.- The last paragraph on the first page- CHAIR: "Ashida objects " -- JOSEPH: "Was Ashida Playing Politics? " L UM: I think it's a separate sheet. Here, last one. JOSEPH: I mean, it all makes for interesting reading, but 1 just want to get through— DILL: Okay, it's Exhibit S for those of you who —go ahead. JOSEPH: If you look at the last paragraph. DILL: Um hmm. JOSEPH: "It was surprising that Ashida would get into the issue with such vigor, which is why I posted his response immediately and in full yesterday. He certainly could have noted his disagreement with Joseph and Naeole without bringing Safarik into the discussion, which is the part that really politicized his response the most. " You know, I totally agree with that. He went from Corp Counsel to getting involved in apolitical race which he is not a constituent of He does not belong to County District 5. And I believe that's the entire issue that you need to examine this morning, is did he overstep his boundaries? Did he play politics? Was this fair, by playing politics? I would have had no problem at all had he done this as a member of the public, and wrote a letter to the editor as a member of the public. But by coming in as Corp Counsel, by using the letterhead and using his title as Corp Counsel, he put a slant on this. He prejudiced the race against Ms. Naeole and myself and took sides in this issue. CHAIR: Hold on- LUM: (inaudible) -- opening statement, he gets to finish it. CHAIR: Go ahead. JOSEPH: If I may -- CHAIR: - -Yes -- JOSEPH. -- continue. The next day, Mr. Ashida did write a letter of apology, and I know it's before you, and it's very short, so if you don't mind if I read it. It says, "I read your latest online entry, " which is the one I'm' referring to now, "concerning my comments regarding the Board of Ethics, and you are correct. The Corporation Counsel should not make any statement or provide any inference that may be construed that a particular candidate in a contested public election is favored over another. I apologize for my earlier email to you, the candidates in the Council District 5 race, and to the readers who follow your website. " And notice he simply signed it "Lincoln, " and he didn't sign it the way he signed this first letter. I believe this is the issue that's before you this morning, on whether or not Mr. Ashida did step over the boundaries. 9 CHAIR: Okay, to clarify, the debate took place September -5 th JOSEPH: I'm sorry, sir. CHAIR: September S`h is when the— JOSEPH- September 6`h CHAIR: September 6`h, okay. And then the video was posted the next day or something— JOSEPH.- - -It was posted close to midnight on the 7`h. CHAIR: Okay. And then —I'm just trying to get the timeline correct here. And then on the 9`h— JOSEPH: Mr. Ashida wrote his letter. CHAIR: Okay. And then what happened after that? JOSEPH: On the 10`h, Mr. Bishop— CHAIR: - -okay, wrote Was Ashida Playing Politics? " JOSEPH: Yes— L UM: - -wrote an editorial— JOSEPH.- - -and then on the 11 `h, Mr. Ashida apologized. CHAIR: Okay. When did you file your petition? JOSEPH: I waited till after the election was over. I did not want to draw anymore attention to this matter. CHAIR: Okay. Now, at some point— JOSEPH: - -and of course, I didn't want to use this as a political football. I didn't want anyone to get the impression that I was using this to get votes or to draw publicity. You know, I —as the former chairman of the Board of Ethics, I just think that sometimes we need to draw aline. And we need —we need to insist on a higher standard. And for those three of you that's been on the Board for awhile, you know I've consistently said that, and I've at times got into conflict with Mr. Ashida over these issues. CHAIR: Okay, then on the 12`h is when Hunter Bishop brought up the possibility of whether or not that letter was an -- 10 JOSEPH: - -No, sir. CHAIR: I have here Friday, September 12Th JOSEPH: On the— CHAIR: - - "Was Ashida's email an ethics violation ?" JOSEPH: Yep. L UM: Yes. CHAIR: Okay. I have it on the 12`h. JOSEPH: On the 9`h Mr. Ashida wrote his letter, on the 10`h Mr. Bishop wrote his "Was Ashida playi%politics ?" and on the 11 `h Mr. Ashida wrote his letter of apology, and on September 26` , six days after the primary election, I filed my petition with the Board. CHAIR: Okay, because I have something here that says from Hunter Bishop's blog, dated Monday, September 22 "d "Joseph hits Ashida with ethics complaint. " LUH: That was after he filed -- CHAIR: - -But he just said- LUM :: - -That was after he filed. He filed— CHAIR: - -on the 26Th -- JOSEPH: I thought I filed on the 261h L UH: 22nd. The petition is dated the 261h. JOSEPH.- Maybe 1 filed on the 22 "d. I stand corrected. CHAIR: Okay. And in that— JOSEPH: - -But it was after the —it was after the primary election. CHAIR: Okay, all right, so after, you filed it. JOSEPH: Yes. CHAIR: And then in that —one thing that concerns me is it says, "Joseph emailed me a copy of the letter he filed this afternoon along with his formal complaint to the Ethics Board, in which he wrote, " and then he quotes the petition. Under Rule 4.13 of our rules, it states that all communications, petitions, need to remain confidential. And serving as a 11 former chair of this Board, were you aware that those things —that those petitions and things of that nature are to remain confidential? JOSEPH: No, sir, I wasn't. CHAIR: Okay. LUM: I wonder, though, John, if that ruling of confidentiality only refers to us as Board members and that we really cannot control the confidentiality of the petitioner. I think that the rule says— CHAIR: Do we (inaudible)— L UM: It says the Board— CHAIR: - -I think it's all communications and petitions until it's presented to the Board, if I'm not mistaken. LUM: It's Code of Ethics number 90, I think CHAIR: - -4.13— HEEL Y.- If I may, Chair— CHAIR: - -Yeah, go ahead— HEEL Y.• - -Just to quote your rules. Rule 4.13, Confidentiality, states in subsection a: "All records, reports, documents, exhibits and other evidence received by the Board shall be held in confidence, and no information as to the contents thereof shall be disclosed unless such items are presented and received by the Board at a hearing or meeting that is open to the public. " CHAIR: So they're to remain —if I interpret it correctly, they're supposed to remain confidential until they're presented to the Board in a meeting. P HEEL Y.- Or the Board 's- LUM: - -But I still think it's only when it's received by us, so 1 don't think that we have control over the person who files a petition and would make that— CHAIR: Okay. LUM: Yeah, I really looked at that, because I was surprised— CHAIR: - -Well, regardless, you felt it necessary to share with Hunter Bishop the nature of your petition? JOSEPH.- It was Mr. Bishop that more or less instigated this whole issue- 12 CHAIR: - -Okay— JOSEPH. - -and along with many other people that thought I should file— CHAIR: - -Okay— JOSEPH: - -I should file, and if I erred, I did it innocently, but if the Board wants to bring me up on a petition— CHAIR: - -No— JOSEPH: - -I'd be happy to —I'd be happy to come back. I think the issue before us is not— CHAIR: - -Okay, to clarify —and this is what you went over in your opening statements. The main violation you feel is present here is that Mr. Ashida brought in Gary Safarik 'into this argument, that, quote, "Gary understood the issues " or understood what was the legal issue that was discussed in the debate, as opposed to Emily Naeole and yourself. JOSEPH: I don't think that was his exact words, but CHAIR: - -Yeah— JOSEPH: - -to that general idea, yes. You know, I can understand his wanting to defend Corp Counsel. It's important that he does that, and I respect him for doing that. And if the letter simply ended with his criticism of me, I wouldn't be here today. CHAIR: Well that's my main concern, Wayne, is that in a public forum, you essentially made accusations about an officer of the County and the rules and practices that— JOSEPH: - -Well, Mr. Dill, did you watch this video? CHAIR: Yeah, I did, and— JOSEPH. - -Did the Board watch the video? GENTRY.- Yes. JOSEPH: At whose insistence? CHAIR: Okay, let me finish, okay. Now the thing is, is that these accusations of conflict of interest were made in a public forum, okay, about a public officer and covering rules and — essentially rules that are covered under the County Charter —that Corporation Counsel is mandated to represent County officers and employees in a legal realm. Now Mr. Ashida, withoutgetting into the Gary Safarik business, defended himself on his County time, and defended his position and his employees and attorneys that work for him, against this public accusation. And that's —I think you were just saying that you 13 have no problem with that whatsoever, right, that he was defending himself and Corp Counsel? JOSEPH: I'm still surprised that the Board would have gone before this hearing and viewed a tape that was edited and cut and not shown in its entirety. I'm really surprised that- LUM: -- Actually, not all of us did. JOSEPH: I'm really surprised that you would have taken that step to review something that you did not know whether or not it was in its entire context, and I believe when you take an edited version of something —when you take an edited version of something, and you just watch the editorial version— CHAIR: --Okay— JOSEPH- - -In fact— CHAIR: - -Do you know what the Board JOSEPH. - -In fact— CHAIR: - -Do you know what the Board viewed— JOSEPH: - -I would like now to submit that those that did watch the video recuse themselves. CHAIR: Okay— JOSEPH: -- because they have prejudiced themselves. CHAIR: Do you even know what the Board viewed? JOSEPH. You just said.you viewed the video. CHAIR: Yeah, and you just said it was an edited version. JOSEPH: Because I know he did not put on the entire two hours. CHAIR: Who's "he "? JOSEPH: The person that did the video. CHAIR: Okay- LUM: - -Okay, our job here today is to— JOSEPH.- - -Miss Lum- 14 L UM: - -act on these two— JOSEPH: - -Miss- LUM: - -these two issues that you've brought— JOSEPH: - -Miss— CHAIR: -- Please allow the Board member to speak, thank you -- LUM: - -which I think is this letter that Mr. Ashida wrote—posted—wrote to Mr. Bishop, who then posted it. Now we're not here to talk about the editorial that Mr. Bishop wrote, or Mr. Bishop's opinions about how Mr. Bishop might have interpreted this letter. We have the letter. Now I think one way to look at this letter, which to me is what I'm concentrating on here, is that apparently there were comments made in a -1'm just looking at the letter —there were comments made in this forum that was videoed, and Mr. Ashida talked about his disappointment to hear these conflict of interest. All right, then — fine, I mean, he's defending his office, apparently, and that's his job. So 1 have no problem with him writing this letter on County time. So we get to the content of this letter, and I think in order to have an ethics violation really be strong, I really believe there has to be —if somebody is going to politicize something, there has to be some intent. But when I read this letter, and 1 read it at home, and 1 don't take pieces out, I don't editorialize the letter, I see that Mr. Ashida is referring to all three people —I don't know if there are others, it doesn't say whether there were others present or not —and 1 did not view the video that we're talking about here, any kind of video —he says —he almost seems to be making a capsule of what Mr. Joseph said and that Ms. Naeole— " Wayne said it all " —so Mr. Ashida is assuming that she's concurring with whatever Mr. Joseph— JOSEPH. - -Mr. Ashida's right here. We— L UM: - -Yes- JOSEH: - -don't have to make assumptions— L UM: - -and then— JOSEPH: - -He can tell us for himself— L UM: - -and then, the third one is, "Gary Safarik, having served as a Council member, understood'' past tense — "the legal issue discussed above. " And then he reiterates those —what our jobs are, volunteer boards and commissions. So 1 don't see any intent here to say you— that's different what people would have heard had they been in the district at this. There's nothing inhere that tells me that Mr. Ashida is saying you should make up your mind one way or the other, because if the people agreed with whatever you were saying, whatever Ms. Naeole was saying, whatever Mr. Safarik was saying- 15 CHAIR: - -Okay, before we move further on, Mr. Joseph, you asked that anybody who saw this video recuse themselves. JOSEPH: Yes. CHAIR: Okay, can I get a motion to move into Executive Session —we can discuss with counsel doing that? GENTRY: Moved. L UM: Move to executive session. CHAIR: Can I get a second? L UM: Second. CHAIR: All right. All in favor? GENTRY, L UM, NICHOLSON, and MARTIN (simultaneously): Aye. CHAIR: All right, thank you. At 10:35 a.m., everyone left the room except for the Board members, Ms. Heely, and the Board's secretary. The door was closed, and the Board went into Executive Session for attorney consultation. Regular Session was re- entered at 10:45 a.m. The door was opened and the parties re- entered the room. CHAIR: Okay, we are back in Regular Session. Mr. Joseph— JOSEPH. - -Sir? CHAIR: You stated before we went to Executive Session that you would like any members of this Board to recuse themselves who had saw the video on Hunter Bishop's blog, or the link to the video. Do you still hold that? JOSEPH: Yes. CHAIR: Okay. I'm asking Ms. Heely to read Rule 1.5 of our rules in its entirety for us to discuss after. HEEL Y.- Mahalo, Chair. Rule 1.5 ofyour Board's rules is entitled "disqualification of Board members, bias or prejudice. Any person, officer, or employee may file an affidavit that one or more of the Board members has a personal bias or prejudice. Such affidavit may be filed on any matter- before the Board affecting or involving such person, officer, or employee. The Board member against whom the affidavit is filed may answer the 16 affidavit or may file a disqualifying " — disqualifying — "certificate with the Board. If the Board member chooses to answer the affidavit, the remaining Board members shall decide whether or not that Board member should be disqualified from proceeding therein. Every affidavit shall state the facts and reasons for the belief that bias or prejudice exists and shall be filed at least ten working days before the date on which the matter will be considered by the Board, or good cause shall be shown for the failure to do so. Board members may disqualify themselves by filing with the Board a certificate that they deem themselves unable for any reason to participate with absolute impartiality in the pending proceeding. " CHAIR: Okay, there's two ways we can do this. Obviously we can have you file an affidavit objecting to us, anybody, on this Board who saw that video, saying that there is prejudice by seeing that video, and then we can respond and then have the Board deal with it —deal with the response that way. Or you can orally state again why you feel any of us who saw the video can't rule on this impartially, and then we can respond that way. How would you like to do it? JOSEPH: I'm fine with doing it orally. CHAIR: Okay. So again, can you state why you— JOSEPH.- - -Yes, I believe that you prejudiced yourself by looking at the video before hearing what I had to say concerning this issue. You went to a source that you knew had —may have had — relevancy in this case and viewed it beforehand. We know in court cases if a juror was to do such a thing in a court case, or even watch news concerning the case, they would have to recuse themselves. I don't see how members of this Board could prejudice themselves before hearing a case that was before them. Now, I would have had no problems if Mr. Ashida asked the Board to view the videotape during this hearing. That way, I would have had an opportunity to explain what may have been cut out of the video tape, I would have had an opportunity to respond to why I said what I said when I did, but you took it upon yourselves to begin this investigation prior to prior to this hearing. CHAIR: Okay— JOSEPH: - -By doing so— CHAIR: - -It's much like— JOSEPH: - -By doing so, you've prejudiced yourselves, and you must recuse yourselves. DILL: Am I prejudiced also? Because I found out about this petition that you filed from Hunter Bishop's blog as well, on the day you filed it, even though that was a violation of Rule 4.13 of confidentiality. So am I therefore prejudiced on this— JOSEPH: - -If you— CHAIR: -- because I found out? 17 JOSEPH.- - -have a problem with me, Mr. Dill, file a petition. CHAIR: Listen to me— JOSEPH: - -But I'm here with my petition — CHAIR: - -I'm saying JOSEPH: - -and I'm saying —and I'm saying that as Chairman of this Board, you have prejudiced yourself and should recuse yourself. CHAIR: Okay. GENTRY.- Mr. Chair, may I make a comment? CHAIR: Yes, please. GENTRY: It seems tome that -1 hear what you say about it being posted. The confidentiality, as I understand it, applies to all parties —the petitioner and the respondent. The reason for the confidentiality is to afford the respondent a chance to review or respond to a petition made against that person. In a sense, Mr. Joseph, you biased everyone by public —by putting into a public forum your petition before it was even submitted to the —to the Board of Ethics, in which case you just biased everyone who taps into that blog. So in regard to that, I think that viewing anything that is available in the public forum, we could have found all of that ourselves, which would have sideswiped everyone, especially the person that you're claiming ethical violations against. Because it happened the day that —when did you send your -- JOSEPH: - -Ms. Gentry— GENTRY: - -copy to Mr. Hunter? JOSEPH: - -Did you see my petition on the blog? GENTRY: I asked you a question. When did you send Hunter Bishop a copy of your petition? CHAIR: I think it's 9122, if I'm correct. GENTRY.- And technically, when did we receive the petition for review? L UM: Two weeks ago. CHAIR: Well, it's dated 9122. LUM: No, but when we —when I personally received it? 18 GENTRY- Yes. Asa Board member. L UM: Asa Board member— GENTRY- --for consideration. CHAIR: Receipt of the petition is dated September 22" , LUM: 1 don't think that's (inaudible). CHAIR: And the date of the letter is the 241h LUM: So is each one of us to respond to Mr. Joseph's request that we recuse ourselves? CHAIR: I guess anybody who saw the video, please let yourselves be known and respond. Arthur? MARTIN: For your information, 1 don't have email or anything— JOSEPH.- - -Good for you. MARTIN: And 1 wouldn't even know what was on it. CHAIR: Ms. Gentry? GENTRY.' I did view what was online. L UM: I did not follow that link to view it. CHAIR: Okay, what —while we're going down, why don't you state whether or not you feel it affected your impartiality in dealing with this. GENTRY- No. It's in the public forum. It doesn't affect my ability to sit on this case. CHAIR: I viewed it via the link that was provided to me, and I don't think that it would affect me. I think what was provided in the video points directly to the comments that you quoted in your letter and what was shared on Hunter Bishop's blog. Marilyn? NICHOLSON: I did view the link, and I don't feel like it�had any impact, because basically what was on the link was exactly what we have in the printed materials, so it didn't bias me in one way or the other. It was just sort of redundant with the existing information. CHAIR: Okay. Does any of the Board members have any problems with any of the other Board members ruling on this? No? Mr. Joseph? JOSEPH- If I may make a comment. I did not view the video. I only know that the video exists. I only know that the video was edited. I do not know the contents of the video. I 19 did not have a chance to view the video. I do not know what you saw. I do not know what you heard. I do not know the context in which it was said. I do not know whether or not what came before that may have been edited, what stimulated that portion of the discussion that may have been edited. I do not —I am not privileged to any of that information that the three Board members have. CHAIR: Would you still like to go through the route of filing an affidavit and postponing this till later, to allow us to respond? JOSEPH: Well— HEEL Y.- -- Chair, I believe — excuse me, if I may interject. I believe he said he did not want to go that route— CHAIR: Okay- HEELY: - -He was fine orally— CHAIR: Okay- HEELY.• - -and per your rules, you are able to state whether or not you can proceed with being impartial, and I believe you guys just have done that. Also, I want to just read 1. 7, Rules of Evidence, for the Board's convenience. "The Board shall not be bound by the strict rules of evidence. Any evidence which is relevant and material to the complaint may be admitted. Effect shall be given to the rules of privilege recognized by law. " I know Mr. —the petitioner stated the rules of court, etc., but the Rules of Evidence do not apply here. And in regards to your independent researching or preparing for your hearing, that's not an issue before the Board. It's not relevant, and 1 believe you guys stated your impartiality. CHAIR: Okay. Why don't we move on and focus on the two issues at hand here, the two rules pertaining to possible ethic violations. Mr. Ashida, could you come up and answer some questions for us, please. (Ms. Heely quietly spoke to the Chair.) I'm told I need to swear you guys in. ASHIDA: Okay. LUM: Who? SCHOEN: No. (Inaudible.) HEEL Y.• Do you guys usually put it under oath —no? No, I apologize. CHAIR: We're very trusting. L UM: Right now, we're informal. HEELY: We're informal, okay. 20 CHAIR: Mr. Ashida, you heard the chronological order, kind of what happened. Do you agree with the dates that were brought up? ASHIDA: I do. CHAIR: And were you present at the forum? ASHIDA: No. CHAIR: Okay. So your only knowledge of it came through the video that was posted. ASHIDA: Yes. CHAIR: Can you tell us exactly what prompted you to respond the way you did to Hunter Bishop's blog? ASHIDA: After I viewed the video, that's what prompted me. CHAIR: Okay. Was there any specific reason you felt it necessary to bring in the names of the – ASHIDA: Well, I think that —first of all, if you look at what —I know there's been some reference that I wrote a letter, you know, on our letterhead, and that's not the case. Actually, I emailed Hunter Bishop. Hunter Bishop and I have known each other for some time. He was a former reporter of the Hawai `i Tribune- Herald and I was you know, I served as a prosecuting attorney in this County for thirteen and a half years. And actually I first met Hunter, I think back in the late 80's, when I prosecuted Mynah Bird, Melvin Mynah Bird Medeiros, on some charges, and that's when 1 first met Hunter. He worked for the Tribune - Herald at the time, and he wrote stories, and since then we've had I'd say a pretty decent professional relationship, So I follow his blog, as well as other blogs, because I just want to get a —I just need to know what's being said out there about the County, not just my office but the County in general. So when I read his —this article, and he provided- -my recollection is he provided a link to the video, so I clicked on one of his links, and then I saw the video. And I didn't send a letter to Hunter —I sent this email to Hunter, and it wasn't my expectation at the time that he was going to print it verbatim, you know —it's addressed to Hunter. The thing about being signed "Lincoln Ashida, Corporation Counsel, County of Hawai `i, " that's one of those auto - texts. I put in LSTA, press enter, and all of that automatically comes up, so that's how that happened. And then after —I guess he got this, Hunter called me up and said hey Linc, did you intend for this to be public. And I told him yeah, you know —I stand by what I said. Then the next thing I know, he reprinted this verbatim, you know, as is. And I thought okay, that's fine. 1 didn't expect that, but that's fine. I stand by what I said So that's how 1 guess —talk about how Gary Safarik's name got interjected, it was really basically what 1 observed. If, my recollection serves, when I saw the video, after Mr. Joseph made his comments, they went down the line, and I think it was Kale Gumapac —my recollection is Kale Gumapac said he had nothing to add. I believe that Ms. Stocksdale also said nothing to add, or something like that. But I remember Emily saying, "No, Wayne said it 21 all, " and it was like an affirmation. And then what Safarik did was, he basically said what I recited in there, his explanation of why there's no conflict of interest —it is correct. It is factually correct. So basically I said what I saw. L UM: So, excuse me —Mr. Ashida, if you would just reiterate that. ASHIDA: Sure. L UM: What Mr. Safarik said, you're sort of requoting hereto Hunter Bishop as being — you were giving that, you were saying that to Hunter so he would understand what was- ASHIDA:. -- Right. 1 wasn't requoting, I was paraphrasing. L UM: Paraphrasing what we really are, and what boards really are, boards and commissions. ASHIDA: Right, and actually that's exactly what yeah, it's accurate. LUM: And so that Mr. Safarik —I didn't watch it —Mr. Safarik more or less was explaining what boards and commissions do? ASHIDA: I recall he said something like, as a board and commission —as volunteer boards and commissioners, you are the decision - makers. As a matter offact, if you look at the video, I think that Mr. Safarik was actually —I wouldn't go as far as say critical of our office, but 1 think he used a phrase like it's not the high paid lawyers who make the decisions, it's you make the decisions. You know, he didn't dump on my office or myself, but he kind of said —he empowered the board and commission members, said you make the decisions, you're not run by the hot— JOSEPH: I object to this— CHAIR: - -Hold on, let him finish— JOSEPH: - -only because the video, if you admit it as evidence, which obviously a few of you have seen, would say Mr. Ashida cannot speak for Mr. Safarik. I don't believe he can speak to what's on the video. L UM: I'm just trying to clarify —I'm trying to clarify this part of the letter. JOSEPH: Well, 1 think all he can testify to is why he wrote the letter. CHAIR: How about we let him testify, then. Please let him finish. Yes? HEEL Y.- If I may respond. As I said, the Hawai `i Rules of Evidence does not apply to this informal advisory hearing. CHAIR: Okay. All right, Mr. Ashida, sorry. Go ahead. 22 LUM: So you're more or less paraphrasing what you understood Gary Safarik was clarifying for that forum— "understood the legal issues discussed above "— CHAIR: - -This was in his letter to Hunter -- LUM: - -and it says "his comments " -- ASHIDA: Yeah. LUM: Okay. So you were just —all right. ASHIDA: Yes. LUM: Okay, thank you. CHAIR: Now, I understand your motive behind this was to defend — number one, was to defend the accusations against you and your office. ASHIDA: That's part of it. CHAIR: Okay, what else? ASHIDA: Well, you know, these are serious —well, first of all, I'm really sorry that I'm here, that I've had —it is embarrassing for me, I'll say that. And like I said in my letter, we are —I respect anybody who's willing to run for public office, because it's not easy, you know. And for that, Mr. Joseph, I'm sorry that you're here as well, and I apologize if you feel that I intended any ill will towards you or anyone, because that was clearly not my intent. But the other thing is that serious allegations have been made, and as we speak right now they're not resolved. We in Hawai `i are self - governing as attorneys. We as public servant government attorneys are held to a higher standard. Once the public loses trust in our ability, that we are above board, that we are ultimately highly above board in our ethical behavior and conduct, the whole system breaks down. Any time anyone makes any allegation of ethical wrongdoing -in this case, even possible criminal wrongdoing —and it involves attorneys of my staff, I am obliged to investigate it. I am obliged, because if I don't investigate it and I don't report it, I let it go, I can be disciplined. I can be disbarred for that. That's a big part of my motivation, Mr. Dill. CHAIR: Okay, that being said, one of the concerns I have, whether or not you stated that your intent was not to influence the election or to endorse one candidate or the other, but a lot of what we deal with here, especially in the world of ethics, is based on perception- ASHIDA: -- That's correct. CHAIR: And many things that we dealt with when Wayne was our chair had to do with the public perception and the higher standards that board members and County officers and employees are held to. I think just by doing this, you kind of went into that realm of giving the impression that you were endorsing or playing politics, like Hunter Bishop 23 said —but I'm just saying that the possible perception was there. And I think you know that because of your apology. You stated that, and I just want to point that out. ASHIDA: That is- LUM: - -1 think the apology politicized it. 1 think when you look at this letter, read paragraph (inaudible), three people in this letter whose opinions are reiterated, Mr. Joseph's, Ms. Naeole's, and Mr. Safarik's. The other two people aren't mentioned. As it stands in this little eddy that's going on here, it happens that you felt that in these three people, in these statements, that the one that was correct was Mr. Safarik's. You felt in this letter that the other two were incorrect in their — whatever they were saying. If a person, a voter, chooses to think that you are the person they're going to follow, then maybe that influenced them, but if they choose to feel that you're not the person, it's like— CHAIR: Well, he stated it. He says, "the Corporation Counsel should not make any statement or provide any inference that may be construed that a particular candidate "— LUM: -- Construed, yeah. That's true, yeah. ASHIDA: That's exactly why I submitted that unequivocal apology the next day, because when Hunter raised it as an issue, then- LUM: - -It's Hunter that raised it as an issue. ASHIDA: Right, but that's exactly what John is talking about — excuse me, Chairman Dill is talking about —is that we should be aware of even the appearance of impropriety So when Hunter says hey, what about this, then 1 thought I'd better make clear to everybody so it's— there's no ambiguity out there. LUM: But the situation here is —when I look at it, in my linear mind, Hunter Bishop is the person that politicized it. You wrote the letter, but it's Bishop's blog that raised the political —and you responded to that, I think Wayne is probably responding to that by sending Bishop the petition, if that's who did it. CHAIR: Well, I think he's done this in the past, where he's been the catalyst for certain— L UM: - -Well I don't read his blog, 1 don't— CHAIR: - -But regardless of how it got to our agenda here, we do have to rule on whether or not these are violations of the Code of Ethics, and I'd like to try and move to that. L UM: Does anybody else have anything to say? Just you and 1? CHAIR: Marilyn? 24 NICHOLSON: I would say that when I read the email that originally started this whole thing, I personally did not read it as being pro or con or in any way politicized. And in a way I agree with Ann, and then when there was a response, 1 started to look at it in a different way. But I certainly didn't read it in anyway that said that you were —Mr. Ashida —that that you were supporting or criticizing. I think you were just trying to clarify the issues. So I didn't see it that way at all. And 1 still don't see it as apolitical issue one way or the other. I think- LUM: -- (indecipherable) part of the political issue. NICHOLSON: Yes, I think it probably is, and 1 don't read blogs, either. So I think that probably that's how it got to be apolitical issue, is because not only what Mr. Bishop responded, but then all of the —we were provided with other comments from other people. You know, to me, it just says here are the facts, make up your own mind. It didn't endorse or criticize —it didn't criticize any candidates. Therefore, I didn't see it as a political issue at all. GENTRY. I would concur with Ms. Nicholson, but 1 would also add that the action that Mr. Joseph took in immediately sending his petition to Hunter in the public forum also created another storm of controversy, and it definitely in my purview violates the rules of confidentiality, because it was done long before this Board ever received any notion that there was any pilikia. CHAIR: Okay, how about, Board members, if we could address JOSEPH.- - -If I may respond to— CHAIR: - -Hold on a second, section 2- 83(b)(3), using County time, equipment, facilities; for private business or campaign purposes. We discussed the campaign purposes, and Ms. Nicholson shared her opinion on that. Do any of you feel that by Mr. Ashida using a County computer, he was in violation of Rule — Section 2- 83(b)(3)? GENTRY.- No. NICHOLSON: I would like to make a motion that we find there is no violation of Section 2-83(b)(3). L UM: I second. CHAIR: Okay, discussion? Okay, all in favor? NICHOLSON, L UM, GENTRY, MARTIN (simultaneously): Aye. CHAIR: Aye. L UM: Moving on. IN CHAIR: Now we discuss the Hawai `i County Code of Ethics Section 2 -83, which states you may not use your County position to secure or grant unwarranted privileges or treatment for yourself or others. Anybody feel that Mr. Ashida was in violation? L UM: Mr. Joseph wants to speak. CHAIR: Mr. Joseph, did you have a comment? JOSEPH- Yes, just a brief comment. I did not submit the petition to Hunter Bishop. Hunter Bishop called me and asked me if I submitted a petition, and I said yes, and he asked me about the petition. Now for clarification —I know it's been referred that I— you're making it sound like I wrote up a petition and then went over and handed it to him and said this is my petition. What I did say, ,I filed a petition. CHAIR: Okay. So these quotes that he has on Exhibit 8— JOSEPH.- I don't have that document before me. CHAIR: Basically it says Joseph emailed me a copy of the letter he filed this afternoon along with his formal complaint to the Board of Ethics, in which he wrote —and basically it's quoting the petition, essentially. JOSEPH: This is the letter I sent to Mr. Bishop. (He handed the Chair a document.) CHAIR: Here, you can take a look at this. Okay, so he's basically quoting that letter that was attached to the petition. L UM: Okay. CHAIR: Here, you can have it. JOSEPH.- That was the letter I submitted to Mr. And the date reads September 22 "d Y. LUM: Yeah, it does say September 22 "d GENTRY: The date reads September 22 "d so it appears that it was sent —it definitely happened before we got it. CHAIR: Okay. All right, thank you, Mr. Joseph, for clarifying that. Now on the table we're discussing Hawai `i County Code Section 2 -83, which states that you may not use your County position to secure or grant unwarranted privileges or treatment for yourself or others. Anybody on the Board here like to discuss this, whether or not Mr. Ashida was in violation? NICHOLSON: I would like to hear a statement from Mr. Joseph just clarifying what the unwarranted privileges are, because I don't really understand what this charge is here 26 for. So could you clarify why you brought up this for us, and what the unwarranted privileges or treatments are that you are referring to? JOSEPH.- It went to Mr. Safarik. It's referring to his favoritism of Mr. Safarik in his letter. CHAIR: In his comments about Mr. Safarik in his letter to Hunter Bishop? JOSEPH: Yes. NICHOLSON: If I may, I would reiterate I just didn't see that what Mr. Ashida had said in his email in fact was in any way favoring one candidate over another. I think it was just clarifying some facts. L UM: I agree. GENTRY.- Then I would move that the Board find no violation of Section —HCC Section 2 -83. NICHOLSON: I'll second it. CHAIR: Discussion? Arthur, you got anything? Want to make sure you're still apart. MARTIN: I'm right here. I've got to say this, though. This is only my second meeting, being on this Board. I got all this at the first meeting. That means it all happened before I even knew what was going on. So I'm just having difficulty assimilating. CHAIR: Any other discussion before we vote? All in favor of the motion? GENTRY, NICHOLSON, L UM, MARTIN (simultaneously): Aye. CHAIR: Aye. Okay. ASHIDA: Thank you. CHAIR: All right, thank you very much. L UM.• Thank you, Mr. Ashida and Mr. Joseph. Everyone but the Board members and staff left the room. It was 11:15 a.m. CHAIR: Moving on with the agenda. HEEL Sorry, before we move on, just to clarify if the Board per the rules wants to issue a written informal advisory opinion to both petitioner and respondent— CHAIR: - -We do. 27 HEELY: I'll be drafting one for your review prior to your next meeting. CHAIR: Yes, that's how we —thank you. Thank you very much. HEELY.• Thank you. b. Review of Gifts Disclosure Statement received from Councilmember Bob Jacobson and dated 11/12/08. The Board reviewed and initialed Mr. Jacobson's disclosure. Motion and vote: Ms. Nicholson moved to accept and file the disclosure, Ms. Gentry seconded the motion, and all members voted aye. 6. UNFINISHED BUSINESS a. Discussion on amending the Board's Rules of Practice and Procedure regarding the imposition of administrative fines pursuant to Ordinance 08 -57. Ms. Schoen had the Board review a draft of a proposed amendment to Rule 7 of the Board's rules, numbered Rule 7.3. It included the definition of "County officer," which was also included in the ordinance. The Board approved of Ms. Schoen's draft, and she explained that the next step would be for the secretary to publish a notice of the proposed rule changes in the newspaper, so that the public could attend and provide comment. Ms. Lum asked whether the Council needed to approve the new rule, so Ms. Schoen read aloud the last paragraph of the ordinance, which stated that it takes effect upon the date the Board adopts it pursuant to Chapter 91, Hawaii Revised Statutes. Afterrthe public hearing is held, the rule will be filed with the Office of the County Clerk, at which time it would become effective. If a Councilmember wanted input on the rule, he or she could attend the public hearing, and it is also possible that the Board, after hearing public comments, would amend the proposed rule in accordance with those comments. Motion and vote: Ms. Gentry moved to accept the amendment to Rule 7 as drafted, Ms. Nicholson seconded the motion, and all members voted aye. b. Ongoing discussion on the Sunshine Law. Ms. Lum brought up how Mr. Joseph's petition was released to the public before the respondent or the Board had a chance to see it, although it may not be relevant to the Sunshine Law. Ms. Schoen suggested that if the Board wanted to discuss this matter, she would recommend it be done in Executive Session, as it dealt with the Board's right, duties, powers, and privileges. 28 Motion and vote: Ms. Gentry moved to enter into Executive Session, Ms. Lum seconded the motion, and all members voted aye. Executive Session was re- entered at 11:23 a.m. 7. EXECUTIVE SESSION (closed to the public – separate minutes prepared) The Board returned to Regular Session to vote at 11:43 a.m. Motion and vote: Mr. Martin moved to accept and file the three financial disclosures which were reviewed. Ms. Lum seconded the motion, and all members but Ms. Gentry voted aye. Ms. Gentry abstained, since she had provided one of the disclosures. S. ANNOUNCEMENTS SCHOEN: Mr. Chair, before we adjourn, I would just like to seek clarification on this Board's instructions to me regarding this Board's response to Mr. Cole's letter dated December P. It was my understanding that this Board wanted me to communicate to Mr. Cole via letter that you will only look at a possible ethical violation with respect to the allegation against Councilmember Naeole, "in her official capacity, did not treat me in a courteous, fair and impartial manner, and is therefore in violation of Article 15, Code of Ethics, Section 2 -83, Fair Treatment, " subsection (a)(3), and I'm quoting from his communication dated December 1St. Is that correct? CHAIR: Yes. L UM: And only that one, and the backup materials for only that. SCHOEN And he —Mr. Cole references, I believe, Ms. Naeole calling him "whacky. " Is that the one- NICHOLSON: Actually, it's a quote from a newspaper article in West Hawai `i Today written by Quirk— L UM: Jim Quirk- NICHOLSON - -Jim Quirk, so we don't actually have anything other than sort of secondhand information. So I think we have no —even no evidence that that happened, so I guess in order for us to— L UM: - -the context or anything else- NICHOLSON - -to consider it.further, we would need some sort of verification that that happened and what the context that that happened is. 29 SCHOEN: Okay, so should I then advise Mr. Cole that the Board is seeking additional information— L UM: - -No, I- SCHOEN: - -or do you want me to say that the petition will be placed on the agenda at the next meeting, only with respect- NICHOLSON - -I think we don't have enough to even act on that. GENTRY: Yeah, insufficient informa —well, the petition is insufficient. SCHOEN Okay. NICHOLSON: But a question I have is, are any of these other very circuitous things that he has here —do you as our counsel see that these actually even fall under our jurisdiction? SCHOEN- Many of them do not. He —in some of the documents he submitted, he cites to stipulations and judicial notice, documents that were filed in other matters that he filed against the County. I do have —I am prepared to give the Board documents showing that those cases were dismissed, and even if they were not dismissed, they are matters outside of this Board's jurisdiction. NICHOLSON So other than that one which I thought really fell into our jurisdiction, are there other things here that it would be appropriate —that we need to respond to in some way? LUM: I don't think that it's our job- NICHOLSON: - -I didn't see it- LUM.• - -to try to figure this out. I think he should be —in my opinion, he should be advised that if he would like to submit a petition regarding Ms. Naeole and that little section one there, with the documentation for that charge only, we will consider it. CHAIR: Okay. L UM: We will consider hearing —we will look at the petition and decide, you know -- CHAIR: Okay -- NICHOLSON: - -if it falls within our purview. LUM: If it falls within our purview, if it's something that we can hear. CHAIR: So are you clear on that, Renee? 30 SCHOEN: So I will say something to the effect that the Board has considered the two communications that you've submitted, and based upon its review the Board —if you want to submit a petition regarding Ms. Naeole and whether or not she violated the Code provision on fair treatment, please submit documentation for- LUM: - -A petition stating that, including documentation to that effect, or however you say it. CHAIR: Okay. LUM.• I want another petition with only heron it. I don't want just more of this. I want a petition that has her name on it— GENTRY. -- Clean, concise— L UM: - -and back -up on it. 'And while we're at that, is there any place on this petition form, a place to put a name — there's no place on this form that says who is this against, really, just what is your interest. But it doesn't say – SCHOEN: It doesn't, but the rules state that you must name the person -- LUM.• - -So we might want to just clarify this, and make it a little bit easier for somebody who doesn't have the rules in front of him. SCHOEN: Okay. LUM.- Might make Mary's job easier. But anyway, I want a new, clean petition on just that one item, and how you're going to say that, I don't know. SCHOEN: Is that a decision by the Board, the entire Board, then? NICHOLSON: Yes. CHAIR: Make sure you include that we are not going to consider the other items in this communication. L UM.- Yeah, she said that at the beginning- SCHOEN: - -And what I will do, actually, is I'll draft a letter and then provide it to Mr. Dill for his review and autograph. CHAIR: Okay, sounds good. SECRETARY: So do you guys want the petition form —I'll put a blank for who it's about, but do you want one petition per person, like if it's about more than one person, like Bill Takaba and Wesley Takai were recently all on one— GENTRY.- - -It should be per person. Each person should be afforded an opportunity- 31 L UM: - -I thought they all —each one did get that. CHAIR: No, it's not separate petitions. SECRETARY.` But sometimes it lists more than one person on the petition. NICHOLSON It could be an issue that involves two people, but we don't know that. SECRETARY.- So just leave it- LUM: If it's two different things, two different people and two different things- NICHOLSON: - -A petition per issue, rather than per person, so if they're going to claim more than one issue- LUM: - -Now this one this morning from Mr. Joseph actually had two, but it's sort of the same issue, but two different— GENTRY- That's how he decided to submit it. L UM: But this is way beyond what I can handle. GENTRY.- See, he might have one —Cole might say one violation against twenty people. How does that get— CHAIR: Well, let's look— GENTRY: -- Because he's dragging in half the world with this thing. ` CHAIR: Let's write that letter and see what he comes back with, and then go from there. The Chair announced the next meeting as being on January 14, 2009, at 10:00 a.m. at the Department of Liquor Control's conference room in Hilo. 9. ADJOURNMENT. Motion and vote: Ms. Lum moved to adjourn, Ms. Gentry seconded the motion, and all members voted aye. The meeting adjourned at 11:50 a.m. Respectfully submitted: Mary ffjCrosson, Secretary WA 9