HomeMy WebLinkAbout2009-09-23 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS
MINUTES — REGULAR SESSION'
Wednesday, September 23, 2009
10:00 a.m. — 12:27 p.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
Mary E. Crosson, Secretary for the Board
Also present: Joyce Folena, Gregory Smith, Emily Naeole, Michael Udovic, Jon
Olson, Leana Gloor, Tim Rees, Shelley Stephens, Raymond Beason, Anne
Marsh - Johnson, Cherish Alameda, James Weatherford, Jason Armstrong, Nancy
Cook - Lauer, Dave Corrigan, Wendell Ing, Kenneth Van Bergen, Levi Hookano,
and several other members of the public.
1. CALL TO ORDER
10:00 a.m. The Chair called the meeting to order.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS
The Chair announced that the Board needed to consult briefly with counsel regarding
how to handle the public testimony on the agendized items.
Motion and vote: Ms. Gentry moved to go into Executive Session, Mr. Martin seconded
the motion, and all members voted aye.
10:02 a.m.: The Board left Regular Session.
10:08 a.m.: The Board returned to Regular Session.
1 Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech.
CHAIR: Okay, this meeting is back in order. Okay, thank you, everybody. We are now
on agenda item number 2, Statements from the Public on Agenda Items. I will be calling
up the people who have signed up, and this portion is limited to three minutes, so please
make your point so we can fit everybody in. One more thing I'd like to ask as Chair.
We've got a lot of people here today if we could make sure that we're respectful and
courteous to the Board and to the folks giving testimony today. Call up first Joyce
Folena. And if you could state your name. Thank you.
FOLENA: How close do you want this microphone to be?
SECRETARY: Right there is fine.
FOLENA: About like that? My name is Joyce Folena. I'm a resident of Puna District.
I've lived in Hawaii nearly 26 years, and I'm speaking in favor of the Board adopting
Ordinance 08 -57 into your rules of procedure, giving you the power to impose and
collect fines that you would decree of not more than $1, 000 per each violation committed
by a officer of the County of Hawai `i. This ordinance has been languishing for sixteen
and a half months. I've spoken to Renee Schoen about it. I've spoken to Mary Crosson
about it. They've been very helpful and very courteous. I'm not an attorney, so I don't
really understand the ins and outs of the legal standards necessary to adopt this
ordinance. I do understand from the newspaper that Mayor Billy Kenoi is in favor of
penalties being imposed by the Board of Ethics, and most of the people that I've spoken
to are saying well, why do we have a Board of Ethics if all you guys do is vote and give
your opinions but you don't give penalties? So that makes you, in a lot of people 's
minds, dysfunctional. I would hope that with the adoption of 08 -57 into your rules of
procedure and I understand that there has to bean agency of appeals created so that
and that's all in fairness and that's within our law within our United States ofAmerica.
If you're found guilty of something, you have the right to appeal it, so I'm wholeheartedly
in approval of this, and I think that enough time has gone by that I think the County can
get it together to create this agency of appeals. There's something else going on in HRS.
Mrs. Schoen would have to explain the details of what the County is lobbying HRS to
lighten up some kind of restrictions, or some kind of legal details, making it easier for
you to adopt this ordinance 08 -57 into your rules of procedure. I understand that there
are also —there are two bills that are going to run through again in the next legislative
session, and one bill which was defeated last year, which will probably be given a new
number. I don 't know if it will or not. ButMrs. Schoen is the lady that I think, and I do
request, say into the record, exactly what needs to be done, because Mrs. Schoen
understands it, being an attorney. That's it.
CHAIR: All right, thank you.
FOLENA: Thank you.
CHAIR: I'll call up next Gregory Smith.
SMITH: My name's Gregory Smith. I reside in the district ofPuna, and I'm very much
in favor of adopting fines and for councilmembers or any other public official that goes
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against the Board of Ethics rules. And I do agree with Mayor Kenoi that it should come
forth. It's along time past. Apparently, you know, I've heard some Council people and
others say that the Board of Ethics is not really effective at all because they cannot levy
fines and penalties against people that have broken the rules of ethics. So anyway, that's
it, and mahalo.
CHAIR: Thank you. And Jon Olson?
OLSON: Yes, good morning. My name is Jon Olson, and I'm here to speak to 2009 -6
and 2009 -7. I was present during some of the incidents that were cited in this petition.
As the chairman here has just pointed out, our process relies on civility to make it
function. I have taken up directly with the Council chair the issue ofEmily's
discourteous demeanor to people who come and testify. He has refused to deal with the
issue, and therefore it's on your desk. There is a disc of all of this, so the issue is really
not the question of whether she did it or not. What we 're down to is what are going to be
the rules of engagement, and apparently it's fallen to you to make that decision. Is this
the way we're going to conduct the government's business? I'm a child of the sixties,
and I've dealt with government out of control, and I can do that and I will do that if that
becomes the rules of engagement. If she can do it, I can do it, and many, many more of
us will do it. I don't want to go there. Been there, done that. But if that's what it takes
to get things back under control, we will. Thank you for your time.
CHAIR: Thank you. And next we have Leana Gloor.
GLOOR: My name is Leana Gloor. This is in correspondence this is regarding
correspondence 2009 -66, letter from Mayor William Kenoi regarding proposed
amendments to the Ethics Code. I am concerned about Proposal 1, relating to Section 2-
83, fair treatment. The stated purpose of the proposal is to prohibit County employees
and companies in which County employees hold a controlling interest from contracting
with the County. This seems reasonable and appropriate. However, the language of the
amendment as it is presented in point Sc stipulates that, and this is quotes, no officer or
employee, or any business in which an officer or employee or the officer or employee's
spouse or dependent children has a controlling interest, shall contract for goods or
services with any County agency. The way it is worded suggests that the intent is to
prevent an employee from using a spouse or dependent children as a cover so as to enter
into contracts with the County while essentially hiding their role as the contractor.
However, the language as proposed would seem to prevent a spouse of a County
employee, who may otherwise qualify on their own merit, from contracting with any
County department simply due to their marital status. I do not know how many
individuals this amendment might affect, but I would suggest that it could potentially
unfairly diminish the pool of qualified contractors and vendors. This amendment would
mean that a business owner that sells goods or offers services and is married to an
employee of the County would be unable to provide such goods and services, regardless
of the price or qualifications. It is easy to imagine many instances where an employee's
role in the County has nothing to do with the selection of contractors or the goods and
services to be provided by such contracts. This affects me personally, because I am a
community planner currently performing a small contract with the County of Hawai `i
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Planning Department. My spouse is employed by the County Department of
Environmental Management. My husband has nothing to do with my County contracts
with Planning, nor does he perform any of the duties of my contracts. However, under
the wording of Proposal 1, (5) (c), it seems that the fact that my spouse is an employee of
the County would now exclude me from qualifying from any future County contracts with
any department. I do not believe that was the intended purpose of the amendment.
Furthermore, Proposal 2, Section 2 -85, seems to allow for a County agency to contract
with an employee under certain stipulated criteria. I am unclear how the amendment in
Proposal 2 relates to the amendment in Proposal 1. I feel that Proposal 1, (5) (c), is
worded in such a way that these amendments does not allow for any further
consideration. I ask that when the Board consider these amendments, it reconsiders the
wording of Proposal 1, (5) (c), so that it will not arbitrarily exclude all County spouses
from contracting with the County if the contract is deemed to be awarded fairly and
without a conflict of interest. There are various methods this could be achieved, and I
trust that with minor rewording the amendment would achieve the desired intent to
ensure fair treatment in awarding of contracts. I recognize the value of transparency in
government, and I welcome ethical reforms that will ensure the public monies are spent
wisely and contracts are awarded fairly to qualified contractors. Thank you for your
consideration.
CHAIR: Thank you, Ms. Gloor. And just to point out, my intention for this Board is to
look at this communication from the Mayor closer at our next meeting, so you're
welcome to come back next meeting or submit your public testimony to the Board.
GLOOR: Okay, thank you.
CHAIR: Next up, Mr. Tim Rees.
REES: Good morning, Ethics Commission.
CHAIR: Good morning.
REES: Sir, I made a mistake on that thing, too. I wanted to list one of the items I
wanted to speak on, I should have listed it as 5. d. (2), the moot petitions.
CHAIR: Okay.
REES: The first one I wanted to testify on this morning, though, is Communication 2009-
66, Mayor Kenoi 's letter, and I speak against this. Most of the provisions in his letter
one problem was trying to locate that letter. I had a hard time. And I'm glad to hear
you're going to be looking into it more at your next meeting. Hopefully I don't know if
you folks can do the hyperlinks on your website, if you're capable, like the County
Council does it. That's extremely helpful so people can be informed about what you're
discussing here today. However, I did acquire it, and there's some misstatements in here.
And generally he the part that I'm against is this giving you folks adjudicatory powers.
There's a lot of philosophical problems with that. I question whether any of you have
been properly trained, except perhaps maybe Ms. Schoen, in evidentiary law, and even if
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any of you would know which particular evidentiary rules or guidelines would apply in a
ethics board setting. So there are very strong considerations, it really needs to be looked
in carefully. Primarily what I'm going to say is this. I testified extensively when Brenda
Ford initiated this ballot initiative at the Council level, and for the Council to now try to
pretend as if they weren't aware of the consequences in the language in HRS statute 46-
1.5, section 24, subsection (a), is preposterous. That is ridiculous on the face of it. I can
show you reams of pages of my testimony to them, explaining to them precisely the
problem they were heading towards, where a person who wishes to fight an
administrative assessment can drag it on for at least a year. And I suggest that they stick
with the earlier provision in the Charter as it was, which said that all violations shall be
prosecuted it didn't say they were misdemeanors, but it said as a misdemeanor. And I
would like to point out that the County itself has many opportunities to seek injunctions.
For instance, if you have a County employee that is not obeying the Code of Ethics,
there's nothing that stops the County from going and seeking an injunction against that
person to stop that particular behavior. You open a can of worms, and when I say you,
I'm meaning the County Council of Hawai `i opened a can of worms when they went to
go to this administrative fines situation. The truth of the matter is, 26 HRS 46 -1.5,
section 24, applies to all administrative fines, such as if a planning director wants to hit
somebody with zoning violations, again, one of their strongest moves is to go right to the
Circuit Court and seek an injunction while all of the proper procedures 46- 1.5(24), as
they exist, are in operation, are in play. The truth of the matter is that the Planning
Director and all the County departments I don't think they've ever gone after anybody.
There may be one to three cases in the past three years where they've actually gone to
seek administrative fines. So this thing is becoming an issue here. In reality, how often
do you think this Board will actually exercise its fining functions rather than giving
people warnings, advising them, and other proper venues and avenues are open to the
County of Hawai `i to stop improper behavior. And of course your Board is very
important in notice notification to a person and allowing a person to request, a County
employee to request from you. So I feel there's a little bit of humbug going on here, the
County acting and the Mayor acting as if we need to change this law now, as if they
weren't aware of the consequences of that section 24 that I referred to. So I'll be looking
at this closely. There are very strong matters to be considered here. Thank you on that
one. On Petition
CHAIR: --Mr. Rees, just to point out, you're four minutes, and we're limiting this to
three minutes. We have a stack of people wanting to testify on this. So you already have
four minutes.
REES: What does that mean?
SCHOEN: Mr. Rees, though, you were going to testify on another item on the agenda.
REES: I was, and I'm sorry I went long. I didn't realize I was over the limit.
SCHOEN: Were you going to testify on other matters?
REES: Yes, I was.
SCHOEN: Okay, then you can allow him another
CHAIR: - -Okay, all right. Another three minutes? All right, I'm sorry. Go ahead.
REES: I wish to also testify on three more items, and I'll make it as fast as I can.
CHAIR: Okay, thanks.
REES: I believe that your New Business, number S on your agenda these petitions are
insufficiently agendized. And why I'm saying this is that what has happened in this state
is, we have a one party system, and it's led to quite a bit of corruption in this state on all
levels. What happened was, years back we had university law professors that were
engaging in sexual conduct with students. They have a strong union. We also have
SHOPO police officers have a very strong union. They lobbied the State Legislature to
put in a provision in the Uniform Information Practices Act which our state, low and
behold, puts parentheses after and says, modified. The uniform was not so uniform I
guess it was uniform and good enough for all the other states. Hawaii needed to modify
it for its own intents and purposes. What they did do, if you look at the open information
laws and the UIPA chapters, they started out very well. They had good intentions. They
had great provisions in there. What they did was they took the actual first amendment
balancing test of where privacy rights were being unduly affected or jeopardized, and
they took the right to know of the public, which the right to know has been considered a
first amendment constitutional right. The unions stepped in and said, we need to exempt
government employees and police officers from having their names and complaints about
them mentioned. And so this is why you don't see this in your thing right now. People
always refer to the SHOPO case. The SHOPO case was actually kind of ridiculous. It
missed so much. What the Ethics Board should consider is UH Law Review, Volume 18,
where a university student went into the I don't have it in front of me right here the
page citation I could give you. It is here somewhere in my papers. But with the time
limits I'm just going to have to tell you. He points out how the U.S. Supreme Court has
ruled on these matters, not for specifically ethics boards, but for judicial review
commissions where the language is synonymous with the language you folks use. It says
it is silly, when you're trying to present an open and fair ethics process in a review
process of government employees, not to name them. Now I want to relate that very
quickly to the insufficiency of this agenda. If I read New Business 5.a., I could just as
well think that this complaint is against yourself, Mr. Dill. Or Ms. Gentry. So has it
sufficiently generated the knowledge that persons of interest need to decide whether they
will come down here and try to interact with our government? We need to know what's
happening. So my loss here the violation to my constitutional right is perhaps I would
want to speak in support if the violation is against you. Perhaps I would want to speak in
support of the complainant. But because the violator and the complainant are not named
here, for silly reasons that have been adopted under this SHOPO ruling, I don't know
who this is about or what's going on. I don't know if I could trust my paper, everything
they print. If I ask politicians, they say well, you can't trust everything the paper says.
So I should be able to get it off a government document. And if I went long, I would
include those too already. The last issue I wanted to speak on is moot petitions. This is
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S. d., subsection (2) there, Counsel's Report Regarding Matters and/or Inquiries Received
by the Board, including incomplete and/or moot petitions filed with the Board, if any.
Well that's really a loaded gun right there, this concept of moot petitions. And if this
Board gets into sticky territory, I can see how there 's just so much political pressure to
declare something moot and be done with it, and have it over with. Though it depends
how you're using the word here ifyou're trying to draw a legal conclusion and say that
issue is legally moot, that's a big, powerful thing to do there. And I think that the public
really needs to be careful about that, that we don't have an Ethics Board that ends up
dismissing matters using the buzzword it's moot, the matter is moot. And thanks, that's
all.
CHAIR: Thank you very much. Up next we have Shelby Stephens. Ethical sales of
lands.
L tW.-
CHAIR: Ethical sales of lands. Ms. Stephens? If you could make sure that your
testimony relates to the agenda items.
STEPHENS: Okay. All right, is it on? Okay, I believe I can relate this to Petition No.
2009 -8, because it involves sales of any lands within Hawai `i. And I just wanted to make
sure, when it comes to property in Hawai `i and I'm going to actually relate this to
Hamakua sales, as the first speaker had talked about that I just want it on record that
the County of Hawai `i must not sell stolen property that they know is stolen, nor should
they purchase property for open space and other things on their agenda that is also
stolen and cannot prove clear title. The title search should have raised major ethical
issues and red flags concerning stolen property but was ignored until citizens pointed out
discrepancies. The sale auction ofMahele lands, especially those proven to be stolen
while the queen was in prison, is unethical on behalf of the Corporate Counsel, the
County Council, and the Mayor, because it perpetuates the belligerent occupance of the
Hawaiian people's land base, subsistence, and traditional cultural properties. Royal
patents, kuleanas, and other Mahele lands are not actually subject to illegal taxation,
and
CHAIR: Excuse me, sorry to interrupt. We don't have that issue on our agenda. I know
you're trying to relate it to Petition No. 2009 -8, but you're speaking specifically of the
Hamakua land sales
STEPHENS: - -Well, I'm actually speaking specifically for ethical transactions within the
County Council, and that it's unethical for any member of the County to sell stolen
property. That is my main point.
CHAIR: I hear you, but it doesn't relate to anything on the agenda. What you said can
go on record
STEPHENS: - -Okay, thank you.
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CHAIR: And if that does come on our agenda, you're welcome back to testify.
STEPHENS: Okay.
CHAIR: Okay?
STEPHENS: And then
CHAIR: -Js there anything else regarding the agenda?
STEPHENS: Yes, I had signed on to do—for Petition No. 2009 -6 and 2009 -7.
CHAIR: Okay.
STEPHENS: So far as so for the first one, County officer violated the Ethics Code
regarding fair treatment. I just want to go on the record saying that the police in general
have a bad habit of doing improper handcuffing on the Big Island. I believe it's
unethical, so that while in the police's care there are people that suffer great injury
because of unethical treatment, and that I'm asking the Ethics Board to consider some
sort of ordinance, statute, some sort of recommendation so far as proper handcuffing
CHAIR: Again, you've got to relate it to the petition on hand
STEPHENS: - -Okay. And I'd like to join the overbearing reference to religion, racist
remarks, and insulting gestures. First of all, I want to say I'm not sure, but I believe
that today this is all about something that Emily Naeole may have done. And I just want
to say that I've known Emily Naeole a long time, and to look at me, you probably think
I'm a white person, I'm a haole. And that I've been insulted left and right because of
how I look, and that actually, after being insulted and being called an F -ing haole one
day, I actually cried on Emily Naeole's shoulder. And she did her best to try to remedy
the situation, and we talked about things like the kumulipo, where there's people of all
different races inside the Hawaiian creation chant. But the thing is and I've heard
rumors, I don't really know, I haven't talked with her personally about what the gesture
was, but that I took a class at UH, and it was all about insulting gestures in foreign
countries, because we had no idea that like this means peace, and this means something
very different, very insulting, in a certain country. And we didn't know that, so we had to
learn all these different ethical things about gestures. And so that's where I'm saying
maybe people need more training as to what is considered a now I have a sore thumb,
okay, and sometimes I know the thumbs down thing, but sometimes I sit there and I go
like this and I hold my sore thumb, okay. That's only because my thumb is sore, not
because I'm trying to insult anybody. And it's not because well, I don't even know that
that would be insulting. So, so far as public officials, I believe they need more training
and actual consultation with other because we're a multi - racial community here. And I
believe that Emily Naeole does not have a prejudiced bone in her body. That's what I
believe. Thank you.
CHAIR: Thank you very much.
STEPHENS: Oh, I'm sorry. I needed to, just for the record, I just want to say that the
geothermal plant has no emergency response plan and that they are dumping catalyzed
sulfite into the water table. And that is unethical business in Hawaii. Thank you.
CHAIR: Okay, up next we have Raymond Beason.
BEASON.- Good morning.
CHAIR: Morning.
BEASON.- My name is Raymond Beason, and Petition No. 2009 -6 Emily and I are
going to get married October 24`h
CHAIR: -- Congratulations.
BEASON.- Thank you, sir. And I've been with Emily for quite a period of time since I
been here, and I went allover the place with her. I've seen people come to her with
tears, all types of races, and all she does is show love. And what she says, that's what
she does. And she helps people. I've seen this with my own eyes. And Emily, she is not
prejudiced. She loves everybody, `cause I've seen this with my eyes. And that's what I
got to say. And what I say is the truth.
CHAIR: Thank you very much.
BEASON.- Thank you.
CHAIR: Up next we have Anne, Anne Marsh Johnson.
MARSH - JOHNSON: Good morning.
CHAIR: Good morning. Let me just point out again, like to Shelby, we need to have this
relevant to the agenda items.
MARSH - JOHNSON: I think that these are really good. I think it should be passed. I
think the proposals are very, very good.
CHAIR: What are you referring to? I'm sorry.
MARSH - JOHNSON: All the proposals, all the proposals that are in this
CHAIR: - -the Code changes
MARSH - JOHNSON: - -Yeah, the Code changes. I think it's really good.
CHAIR: Okay.
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MARSH - JOHNSON: I wanted to talk about the ethics of the County of Hawaii in land
sales, though. And it's really important. I've been doing some investigative work on the
actual boundary lines of the Hamakua Forest Reserve, and I'm finding out that these
boundary lines are far larger than what you have now. And is it ethical for the County of
Hawai `i to withhold documents from the State of Hawai `i and lands from the State of
Hawai `i that belong to the State of Hawai `i? Is it ethical? We right now are in a
situation where I know that we have endangered species of plants and animals on this
island. The Department of Land and Natural Resources has a map. They know about
that. But we are allowing the County of Hawai `i to continue with these land sales and
CHAIR: -Fm sorry to interrupt. We have to have it specific to something regarding the
agenda. You're welcome to file a petition --
MARSH - JOHNSON: --I'm sorry
CHAIR: - -No, no, you're welcome to file a petition
MARSH-JOHNSON: - -But I do think that this is very good.
CHAIR: Okay.
MARSH - JOHNSON: I think that we should pass it, but ethics wise, I think that there
needs to be more transparency and more ethics done. I think it's very good.
CHAIR: Okay.
MARSH - JOHNSON: I think it should be passed, I think the whole thing should be
passed.
CHAIR: Thank you very much.
(UNKNOWN FEMALE VOICE): All land sales go through the County.
MARSH-JOHNSON: Yeah, the land sales do go through the County, and it's not ethical
for the County to sell something that doesn't belong to them.
CHAIR: Okay, thank you.
MARSH - JOHNSON: Thank you.
CHAIR: Okay, Cherish Alameda.
ALAMEDA: Good morning.
CHAIR: Morning.
ALAMEDA: I am here on behalf of, I believe it's Petition 2007 and 8, dash -8.
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CHAIR: 2009 -6 and 7.
ALAMEDA: Oh, 9 and okay. Regarding the ethnic of Emily Naeole. I have known
Emily for about ten years, and I live in her district and I've had the option and the
wonderful opportunity to be not only apart of her life, but apart of many lives that she
surrounds and who surround her. And when this first came up, I was shocked, and I
could not believe it. This lady goes out on a limb for her district and everyone who lives
within it, and those who don't live in her district. It doesn't matter what your creed,
color, race, is. Emily, I don't believe, has any form of what we call in Hawaiian pilikia
against anyone. She will give the shirt off of her back if she sees someone walking in the
rain and needs a shirt. This lady, she holds a great standard of who she is. And I know a
lot of the time people feel that her beliefs interfere with what her job is, but I believe
that and I know that she knows that she believes this also —that she stands on who she
is, and that's who she is has gotten her to where she is today. And through every life
experience she has experienced, every person she has met along the way has made her
into the woman she is today. And not because she has a certain belief or because she
has that she's different from others. Should she be constantly condemned for that? You
know, a lot of people, they use her especially in her job realm they use, oh, Emily uses
God all the time, all the time. Well, you know what? All of us use God all the time.
Every time we reach in our wallets to grab apiece of money, to grab money to pay for
something in this country, we are using God, `cause printed on every currency that we
have, it says in God we trust. And that's what Emily lives by. And I love her dearly, and
I know that she loves her job dearly, because the way she 's able to interact and make a
difference in many people's lives. And I just would like you folks to take that into
consideration today. Thank you.
CHAIR: Thank you. Up next we have Joyce.
FOLENA: Mr. Dill, I'm going to speak on my own petitions, my and Greg's petition. Is
that acceptable?
CHAIR: Yeah, you'll have an opportunity later, of course.
FOLENA: Okay, I'll be brief.
CHAIR: Okay.
FOLENA: This is I'll use the six minutes up, maybe, maybe not. Petitions 2009 -6 and
2009 -7. We are not criticizing or faultingMrs. Naeole for her religious belief. We are
very adamant that during the County Council meetings, which are secular by nature,
legislative by nature, called to conduct business the legislative business of the County of
Hawai `i that it is a violation of the Code of Ethics for any council member to single out
their own religion and use that religious principle as a lever to try to sway the politics,
the votes, of the County Council, to try to affect the legislation of the County Council of
the County of Hawai `i using skin color. There was a quote by Mrs. Naeole. She said, is
it because I'm kind of dark, or what's the problem. And this is a racial slur. The
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religious test in our country is illegal for anyone holding any position in our government,
and that reference is the government can't give a religious test to someone as a criteria
for that person to hold office or to be appointed to any position in our government. I
think it's a semi permeable membrane. I think that it's a violation of Section 2- 83(a)(3),
which states all persons must be treated in a courteous, fair, and impartial manner.
There are many people in our County that do not accept Jesus Christ as their lord and
savior as part of their religious or spiritual belief. We have Muslims, Hindus, Buddhists,
Christians. We also have atheists and agnostics and many other sects and beliefs of
which I'm not familiar. So we have to respect with impartiality all persons. We have to
be courteous to all persons. We cannot allow our County representatives to use their
own religious construct during the legislative debates and discourse of the County of
Hawai `i. This is not to fault Mrs. Naeole in her private business of her religion. We are
saying Mrs. Naeole does not have the right to bring her religion to the table during the
legislative business of the County of Hawai `i. Thank you.
CHAIR: Thank you. Next we have Gregory Smith.
SMITH: Yes, I'm going to comment on our petitions 06, 07. Again, my point is, is it
apparently Mrs. Naeole does not understand how she has wounded some people's
sensibilities by her constant references to her god, or the fact that she has said that Akua
told her to do this, Akua told her to do that, right. This I'm sorry, I don't hold those
beliefs. Now I am a firm believer in separation of church and state for the very simple
reason that I am sure that if I express my views of Pentecostal or evangelical Christians,
I would actually hurt Mrs. Naeole's feelings and her sensibilities, all right. And that's
the problem. This behavior, if you notice if you go to a Council meeting, you'll notice
that nobody in that room except Mrs. Naeole refers to her god, refers to Akua, refers to
Jesus Christ. They keep silent, not because they keep silent because it's respect for all
people's religions. We are in the business if we 're in the County Council testifying, or
whatever business we are discussing in that body, we're not here I don't want to hear it.
I'm sorry. I just don't want to hear it. I don't burden her or anybody else in that room
with my religious or spiritual beliefs. I do not appreciate that. And then of course, tome,
what was most grievous was her racial slur, which we have recorded in our petition. And
this is not some isolated incident with Mrs. Naeole. Again, if you notice, other council
people do not reference their ethnicity or their race in their general discussions, unless of
course you say, oh, we have a Hawaiian issue or we have a Filipino issue, or something
specific to what is on the agenda. The problem here is that, again, her reference to her
skin color after Kelly Greemvell had given her a sharp you know, a sharp it was a
sharp discussion on her qualifications to be vice chair, okay. And the problem is that she
comes in, obviously angry and frustrated. Nobody likes to take criticism. But you know,
that's part of being a County Council person, you know. And if you can't take criticism,
in my opinion, get out of the kitchen. What she did in that one comment and I was
involved in civil rights in the sixties. I've been put in jail for it, and to have somebody
come up in this day and age, 2009, to make some stupid comment like that is to me
that's not acceptable. I'm sorry. Anyway, that's it. Thank you.
CHAIR: One more. James Weatherford, speaking on the two petitions.
12
WEATHERFORD: Thank you, Mr. Chair, and specifically I want to address an issue
that Ms. Folena had asked me if I was present when a particular incident occurred at the
County Council. That was the incident in which Ms. Naeole was praying over the witness
at the time that Ms. Folena was testifying before Council. And it is true, that my
observation was that Ms. Naeole was holding her hand out and was audibly having
something to say to someone during the time that Ms. Folena was testifying.
CHAIR: Okay, thank you.
WEATHERFORD: Thank you.
CHAIR: Okay, moving on to agenda item number 3, Approval ofMinutes.
3. APPROVAL OF MINUTES
Minutes of the August 12, 2009, Regular Session.
Motion and vote: Ms. Nicholson moved to accept and file the minutes, Ms. Gentry
seconded the motion, and all members voted aye.
4. COMMUNICATIONS
a. Communication No. 2009 -64: Hawaii Police Department Annual Report
Fiscal Year 2007 -2008.
The Chair requested delaying the acceptance and filing of this communication until the
Board had more time to go through it. The other members agreed.
b. Communication No. 2009 -66: Letter from Mayor William Kenoi dated
9/14/09 regarding proposed amendments to the Ethics Code.
The Chair said that since no one was present from the Mayor's Office and more time was
needed for the Board to review the proposals, he would like to continue the matter to the next
meeting. In the meantime, he asked that each member come up with a list of questions and send
them to Renee Schoen. He said someone from the Mayor's Office would need to be present at
the next meeting to answer their questions.
Motion and vote: Mr. Martin moved to defer the matter to the next agenda, Ms. Gentry
seconded the motion, and all members voted aye.
5. NEW BUSINESS
a. Petition No. 2009 -6: Petitioners allege that a County officer or employee
violated Sections 2- 83(a)(3) and 2- 83(b)(5) of the Code of Ethics (regarding
13
fair treatment) and "needs to be instructed to stop being discourteous and
unfair to the public, and needs to understand our First Amendment Rights,
in stopping ... racist remarks and overbearing references to religion."
CHAIR: Before we start these petitions ahead of us, I just want to remind everybody that
this is an informal meeting, and the way I'd like to work it is to bring up the petitioners to
give their side of the story first. Then Ms. Naeole and whoever's representing her can
then give their side of the story. And you guys can take ten, fifteen minutes, whatever you
want to take, but just try to keep it to the point. You guys tell your side of the story for the
frrstpetition, and then I think Mr. Udovic, are you representing Ms. Naeole?
UDOVIC: I am.
CHAIR: And then after that, I'd like the Board to ask questions. We will discuss if we
need more time, more information, whatever, and possibly, if everything's fine with us,
we 'll make a motion to issue a decision on this today. So petitioner first, and then Mr.
Udovic andMs. Naeole next. So petitioners for Petition 2009 -6, Joyce Folena and
Gregory Smith.
FOLENA: Do you want us to proceed?
CHAIR: Yes, please.
FOLENA: Okay. Petition 2009 -6 contains I'm sorry
CHAIR: - -Wait, I'm sorry, I think we have some disclosures first for the Board, before
we move forward on this.
FOLENA: You want me to wait now?
CHAIR: Yeah, sorry.
GENTRY: Mr. Chairman, I would disclose that I worked in a temporary position under
Ms. Naeole more than a year ago, but I feel that I can sit on this case based on the merits
of this case.
CHAIR: Okay. Anybody have a problem with that? Yes, Arthur?
MARTIN: I'm an ordained minister in the United Church of Christ. I don't know it this
would have a bearing, as there's a religious part to this.
CHAIR: Okay.
SMITH: Absolutely no problem with that.
FOLENA: It doesn't bother us, Mr. Martin.
14
CHAIR: Any of the Board members feel that they can't have any issues with these
disclosures? Ms. Naeole's side, any issues with these disclosures?
UDOVIC: I have none.
CHAIR: Okay. And then before I proceed, just a reminder to everybody that this Board
deals directly with the County of Hawai `i Board of Ethics and the codes therein.
Constitutional issues are out of our scope, but you referred to the Board of Ethics, or the
Code of Ethics, in your petitions, so let's look at that. Please proceed. Sorry.
FOLENA: That's okay. I understand that the I want to say this formally into the
record, that I understand that the Board of Ethics of the County of Hawai `i deals with
issues pertaining only to the Code of Ethics of the County of Hawai `i, Chapter 2, Article
15, Section 2 -83, in this case subsection (a)(3) and (b)(5). My first two addendums and
I'm not an attorney, and I'm not a professional, and my typing's pretty darn bad, so I
apologize for the poor typing had to do with constitutional law and case histories that
I'd researched doing Google. I do understand that now, that this is just background and
that's why I did enter and file the Summary Addendum, which is more to the point of how
you people do rule, and how you vote. The Summary Addendum contains verbatim
listings of a total of 14 violations to the Code of Ethics on the part of Mrs. Emily Naeole.
Thirteen of these violations and they're in chronological order thirteen of these
violations on the part of Emily Naeole occurred on 16 June 2009 during the County
Council meeting held in Kona, videoconferenced Waimea and Hilo. Mrs. Naeole was the
only council member present in Hilo at that time. Mr. Smith and I were present in the
Hilo room along with quite a few other testifiers and members of the public who did not
testify. I think just about everybody that sat there did testify. During that time, Mrs.
Naeole expressed herself in ways that we find completely in violation of the Code of
Ethics which, by the way, does follow HRS, Hawai `i Revised Statutes, which in turn
follow federal law. And this subsection here, Section 2- 83(a)(3), says all persons shall be
treated in a courteous, fair, and impartial manner. And I'm going to do my best to be
brief so that you will understand why we think this is serious enough to bring it to the
Ethics Board. We don't want to go into a court of law with this. We want this nipped in
the bud. We want your vote and your opinions in the direction and in agreement with our
petitions so thatMrs. Naeole will be confined, we hope, by verbiage from the chair, J
Yoshimoto, after your opinions are given to the chair, which I believe they are, are they
not?
CHAIR: Um hmm.
FOLENA: Correct, okay to confine her comments to a secular, within a secular nature,
and to please stop mixing church and state. There are two very good reasons for that.
When church interferes with government, it opens the door for government to interfere
with church. I don't I said this before in my testimony I don't faultMrs. Naeole for
her Christian belief. I don'tfault anyonefor anyone's belief, because I'm a universalist
in nature. I feel that people walk their own path and as long as they do that with respect
to everyone else's path in our country, the United States ofAmerica, everyone is
empowered to do so, so this all persons shall be treated in a courteous, fair, and
15
impartial manner I think the key word here is impartial. The impartiality demanded of
every County Council member in the direction of religion means that no council member
can use his or her religion as a bludgeon, politically speaking, as apolitical tool, or as a
political lever in order to influence the legislative, secular vote of the County Council
and also cannot be used as this religious thing cannot be used by a council member in
order to intimidate or try to affect the thoughts and the testimonies of the public, which in
turn affect the vote of the Council. When Mrs. that's in the 16 June 2009 meeting. I'm
going to refer to the fourteenth violation of Petition 2009 -6, and that occurred on the S
August 2009 County Council meeting. This is held in Hilo. At that meeting, I was giving
my public testimony in very definite opposition to Mrs. Naeole being vice chair, and I will
sit here and say to all of you that to this day I feel that Mrs. Naeole isn't qualified to be
the vice chair of the County Council. And I feel by her aforementioned violations that
she's continuing to prove my point, but that's a matter for the Council. Now during my
very definite testimony in opposition to Mrs. Naeole being the vice chair, a position that
Mrs. Naeole wants very dearly, Mrs. Naeole extended her let's see, I think it washer I
don't know which hand it was at this point. I think it might have been her left hand, or
right hand, don't know. And she started, barely audibly I could hear some words
coming from her praying over my I'm using a gesture, but this isn't teleconferenced
nor is it recorded visually, but she extended her hand in my direction. I'm sitting at the
table. She's sitting about where Diane Gentry is sitting in angle to me. And it was
disruptive to my thought process, and I was infuriated that that occurrence was being
conducted during this secular meeting. I mean, the meeting is not a church meeting. It's
a secular meeting. The doctrine of church and state in our country has been upheld
100% of the time by the Supreme Court, and so as such I think that doctrine is carried
over I'm very sure it's carried over into the Code of Ethics. All persons shall be
treated in a courteous, fair, and impartial impartial, underline, bold print, impartial,
manner. Please, ifMrs. Naeole wants to pray during the County Council meetings, that's
her right, as long as she does it silently. She can read her Bible during County Council
meetings. But we strongly oppose Mrs. Naeole using God told her that it was okay and
she should step up and be the County vice chair. Frankly, I don't believe that. But Mrs.
Naeole believes that, and it's her right to believe it, and it's my right not to believe it.
You can't bring your own personal religious belief in as reasons why you're sitting in
that chair as a representative, and as reasons why you think you should be elevated.
Neither can you bring in your ethnicity as a reason. Now I have a dual feeling about
Mrs. Naeole using ethnicity, skin color, Hawaiians have to come up because Hawaiians
have been put down. I will be the first to admit Hawaiians have been suppressed, and
Hawaiians do need to step up. I'm very supportive of this, but you can't you meaning
Mrs. Naeole or any council member can't use any one ethnic group or ethnic reason as
a an opinion or as being qualified to hold any office in our United States government or
our state government, i.e., our County government. We're prohibited bylaw from using
racial bias, racial reasons, religious reasons, for hiring and voting, electing anybody in
our government. I think I've covered it. Thankyou. And there's also 2009 -7, so I didn't
cover that one yet, sorry, sir.
CHAIR:
FOLENA: I'm only speaking on 6
16
CHAIR: Yeah, right now.
FOLENA: Sorry, sir.
CHAIR: Mr. Smith, you want to add a few words?
SMITH: Not really much. If you folks have any questions, certainly I'd be
CHAIR: - -We'll hold our questions till after we hear their side. I'm sure we'll have
some.
SMITH: All right, very well. Thank you, sir.
CHAIR: Thank you. So why don't we call up right now Councilwoman Naeole, Mr.
Udovic.
UDOVIC: Good morning, Mr. Chair and members of the Board of Ethics. I've provided
correspondence with the Board which I think outlines our position fairly succinctly. I
don't think that this Board has the, quite frankly, the authority or the power to determine
what people can say, think, feel, hear, or speak about during council meetings, quite
frankly. And the real issue I think that we're involved within this particular case I think
was brought up by I think it was Mr. Smith, Gregory Smith, the last person who was
present, when he said that what in his public testimony that what they're really talking
about was that Ms. Naeole, by her statements, were wounding their sensibilities, and they
don't appreciate that kind of comment. Well, I don't think that's a violation of the Ethics
Code of the state or for the County of Hawai `i, and I think that's what we're here for.
Remember that council members are elected because they have opinions. They're elected
because of who they are. The members of her district elected her because of who she is,
and she's there to represent them. And if you start restricting how she represents them,
then quite frankly I think that we've really gone and taken a step backwards. I don't
think we have anything else to add.
CHAIR: Okay. Board members, do you have any questions for why don't you stay
therefor a second any questions for Ms. Naeole, Mr. Udovic? Yes, Arthur?
MARTIN: The petitions seem to be based on 13 statements supposedly Mrs. Naeole said.
Are those accurate or not?
UDOVIC: We didn't determine whether they were accurate or not.
CHAIR: Yes?
GENTRY: I was wondering, when you took office, Emily, was there an orientation for
proper decorum of office? Did they provide new council members an orientation on what
you can and cannot do during the course of a in conducting council business?
17
NAEOLE: Not really.
UDOVIC: Not really.
NAEOLE: And so the thing is, you know, I been in office almost three years. I've done
the same thing from day one. So almost three years later, I'm being criticized for things
I've done for almost three years. That's alll have to say. I haven't changed. I'm the
same when I walked in till today.
CHAIR: Well, in our deliberations, my feeling is, like Mr. Udovic pointed out, that
council members, politicians, are elected for who they are. I think the expressions that
Ms. Naeole had brought forth in the course of public service is basically expressions of
who she is. If Ms. Naeole or a counterpart of hers was a Muslim, something of that
nature, or environmentalist, dressed a certain way, with a turban or with a however an
environmentalist dresses I think they would be expressing who they are to everybody
that looks at them. I myself find it hard for us to limit the expression of who we are and
why we act the way we do in the course of civil service. One of the problems one of the
issues in Section 2- 83(a), subsection (3), as Joyce brought up, is the impartiality. And
that I'm having trouble trying to comprehend and wrap my mind around. If nobody else
has any questions for Ms. Naeole do you? We have some questions for --
UDOVIC: - -Thank you
CHAIR: - -I have some questions for Joyce. Ms. Folena, at the 16 June 2009 County
Council meeting
FOLENA: - -Um hmm, I'm right here
CHAIR: --you had mentioned that you were in the Hilo videoconference room, right
FOLENA: -- correct-
CHAIR: - -and there were about five other people there with Ms. Naeole
FOLENA: - -No, there were more than five.
CHAIR: More than five.
FOLENA: There was a room full.
CHAIR: Okay. Let me ask you this, if you know the answer to it. The people that wanted
to give testimony, did they all give testimony? Did any of them not give testimony
because of the way the behavior was from Ms.
FOLENA: - -I can't answer that question because I didn't ask them all, sir. And I have a
point that I'd like to make up to you, or give to you. There was a question of authenticity
of our quotes and our summary addendum asked by Mr. Martin, or Reverend Martin.
W.
Mr. Martin, sorry. These quotes are verbatim in chronological order from discs three
and four of the DV disc recordings of that meeting, sir. So you can validate them at your
will, at your time.
CHAIR: All right.
FOLENA: Thank you.
CHAIR: My question was, I heard something during --
FOLENA: - -Sorry
CHAIR: --your presentation, saying that I think we all gave testimony that day in that
room, so I just want to see if there was any kind of impediment because of the way
Councilwoman Naeole was acting if anybody did not give testimony.
FOLENA: I couldn't answer that, because I didn't speak to anyone. So for me to say yes
or no would not be a valid answer.
CHAIR: Okay. Board members, do you have any other discussions,
questions?
GENTRY: I guess maybe just a comment, because if whether or not county council
members are given an orientation, and have these types of rules, like if they're not
trained or if they're not it's at least not brought to their attention, that all persons shall
be treated in a courteous, fair, and impartial manner, then it's subjective, you know.
What is courteous, fair, and impartial? And that's why I asked my question, to see if they
had covered
CHAIR: - -Well, I think it's obvious to the petitioner that the petitioners were offended
by what was said and what was done
FOLENA: -- You're right
CHAIR: - -and felt that it was a violation. What gets me is the person sitting next to you
might not feel that way, or might feel ten times worse. Just because she's expressing who
she is, is really we live in a pluralistic society. Our society is very diverse in belief, and
I think you mentioned that in your public statements.
FOLENA: I did.
CHAIR: So I think one of the requirements of us living in this pluralistic society is to be
tolerant, or to at least recognize the fact that there are many people that are different
than us, and that's
L UM: - -But the other side of that, of course, is that all of us have to try, attempt, and
grow to recognize particularly when it's important to be sensitive and try to be nobody
19
can totally be impartial but to be sensitive, and I think people in public office, people
who deal with our the public interaction with our government, are perhaps held to a
stronger standard of impartiality and held to attempt to be more sensitive to the public,
perhaps to put our own feelings down a little bit so that the public can be made
comfortable, and to be in an environment where they are comfortable to express their
opinions. So that I think that we have to all I think that's why this rather troublesome
section (3) remains in our Code. The other items don't necessarily have that, but this
item, we've chosen that, that all persons shall be treated this is now talking to all of
our County people, that we're supposed to treat all people courteously, fairly, and
impartially. It's tough, but we have to work to do that, and sometimes we do it better
than other times. And I think that's why people end up in front of the Board of Ethics,
because it reaches a point with some people where they feel a line has been crossed, and
so they go to the trouble to make a petition. And I think we have to listen to that.
FOLENA: Mr. Dill?
CHAIR: Yes, ma'am.
FOLENA: I think included (b)(S) in the Section 2- 83(b)(5), so I'd like to please have
you consider (b) (5) too, using County property or personnel for other than a public
activity or purpose.
CHAIR: Right, I recognize that, and I reviewed all your documents.
FOLENA: Okay.
CHAIR: I'm assuming your reference to (b)(S) is that Councilwoman Naeole was using
County property for religious activity?
FOLENA: Right. That's private.
CHAIR: And one of the problems that I have with that as chair is that it goes back to the
constitutional issues and arguments and questions, and I think it was more in this case
it was more of an expression of who she is and why she votes the way she does and why
she does the things she does. I don't think she was technically holding a religious
ceremony or ritual, and that's the problem I have with (b) (5).
FOLENA: Okay.
CHAIR: Let's see how it applies to (a) (3).
FOLENA: Okay.
CHAIR: Does the Board have any other questions, or are we ready to file for a formal
opinion?
LCM: One point. Praying over someone is probably a religious ritual.
20
CHAIR: Okay. I guess I should say
LUM• -- especially with the motion
CHAIR: - -a formal
L UM: --yeah, not a formal service, but I do think it is a ritual.
CHAIR: Again, I think it's an expression of who she is. I think she made it clear she was
just expressing who she is. But I think the question comes down to, is offensive behavior
to one person in violation? Is it discourteous, is it impartial, is it not impartial? And
that's what we need to decide here.
GENTRY: I don't have any questions.
CHAIR: Do you have any comments, questions?
NICHOLSON: I have no questions, no.
GENTRY: I don't have any questions for Joyce or Greg, but maybe a question for Emily,
another question for Emily.
CHAIR: Go ahead.
FOLENA: Okay.
SMITH: Thank you.
GENTRY: My question is this. At the time that the petitioner was submitting testimony
before the Council, were you indeed praying over her?
NAEOLE: You know, I think I was praying for myself, so I could keep my act together,
yeah, because I remember what I was doing, but nobody knew what the word was coming
out of my mind and my heart. Only me knows. And I got to pray for myself sometimes.
When people call you stupid, and people put you down a lot, what you supposed to do?
I'm a human being. And you know the word stupid it's a hard word for me, because
when I was growing up as a child, that word was used upon me a lot. And so when I hear
people calling me that, sometimes I try to believe it, but I know I not. I know I pretty
smart. And so, that's all I have to say.
GENTRY: So at the time this was occurring, you were not actually your intention was
not praying over the petitioner?
UD0VIC: No.
NAEOLE: No. I had to pray for myself.
21
GENTRY: You were exercising yeah, you were praying for yourself.
NAEOLE: I have to, but my hand was out.
GENTRY: Okay. That's all I have.
CHAIR: Okay. Anybody want to entertain a motion, or anything of that nature for
discussion? Okay. Why don't we take a five- minute break. You can use the restroom,
freshen up, and then the Board will reconvene and deliberate on this issue, and hopefully
we can come to some sort of formal opinion on this. So five minutes
UM -- Informal opinion.
CHAIR: Informal opinion.
NICHOLSON: Informal.
(The Board recessed from 11:18 a.m. to 11:26 a.m.)
CHAIR: Okay, why don't we call this meeting back in session. Okay, just to recap this
informal hearing, we've heardfrom both sides regarding Petition 2009 -6 Does the
Board have any discussion between itself, any questions for petitioners or responders?
NICHOLSON: I would just like to —since I haven't said anything, I would like to at least
state how I feel about this. And I feel that the if I were the one sitting in that chair or
listening to this, I think I would find the behavior somewhat inappropriate and maybe
somewhat offensive, but do I think it raises to a real ethical violation? And I would
probably say no. I think that there is definitely some inappropriateness here, but again,
I'm applying my own my own standards, and we all tend to do that. But is there a real
ethical violation here? And I guess I'm not seeing that the strength of a real ethical
issue.
CHAIR: Okay. I agree.
GENTRY: I would tend to agree with Board member Nicholson, and that's the reason
why I asked Councilmember Naeole, to come up and ask well, what were you thinking?
Were you really praying for the petitioner? And the answer was no. There's so much
about public perception, especially in the area of ethics, that it can be misconstrued. In
the public purview, so many things, even if you scratch your nose that could be
misconstrued as I'm scratching my nose at somebody particular. And that does not seem
to be the intention here, at least not from the reading of it. But I can understand where
so much of what we do —even sitting here, whether we smile or not, frown or not, can be
discourteous to someone. And that was never our intention to do. But as a public officer
or elected official, we could try to mind our p's and q's a little bit better, too. That's it.
22
CHAIR: I'd like to call for a motion for an informal advisory opinion from the Board
regarding Petition No. 2009 -6, finding that Councilwoman Emily Naeole was not in
violation ofHawai `i County Code Section 2- 83(a)(3) or (b) (5).
MARTIN: I so move.
NICHOLSON: I second.
CHAIR: Any further discussion? All in favor say aye.
MARTIN, GENTRY, NICHOLSON, CHAIR (simultaneously): Aye.
CHAIR: Opposed?
L W: No.
b. Petition No. 2009 -7: Petitioners allege that a County officer or employee
violated Section 2- 83(a)(3) of the Code of Ethics (regarding fair treatment)
by making "insulting gestures during the time of testifiers exercising their
constitutional First Amendment rights to free speech."
CHAIR: All right. Moving on to Petition No. 2009 -7, we're going to handle this in the
same way. It is in reference to the same section of the Ethics Code, Section 2 -83, except
it is isolated to Section (a) (3), correct?
SMITH: Yes.
CHAIR: Okay, Joyce, Gregory, please come up.
FOLENA: Mr. Dill, I have a question about your ruling just now?
CHAIR: Yes.
FOLENA: Since 2009 -6 had a list of a total of fourteen violations
CHAIR: I see, I see. Yeah, I see what you're saying.
FOLENA: Yeah, what about the rest of them?
CHAIR: We are
FOLENA: - -the rest of the violations?
CHAIR: - -what we're doing is referencing the petition, which includes all those
violations. You included this in your addendum, right?
23
FOLENA: Yeah, right. Did you just rule on all fourteen violations?
CHAIR: Yes, because we ruled on the petition, it ruled on all fourteen violations, yeah.
Okay?
FOLENA: Okay.
CHAIR: So now we are at 2009 -7.
FOLENA: Dash -7, okay. That has to do with I'm going all the way back to Mr.
Azevedo, Mr. Buzzy Azevedo, Buddy sorry, Lionel Buddy Azevedo's letter to you
concerning the thumbs down gestures ofMrs. Naeole during the 16 June 2009 meeting,
which was held in Kona, teleconferenced in Hilo. Mrs. Naeole was the only council
member present in Hilo. And also teleconferenced in Waimea. Mr. Buddy Azevedo's
letter is in front of you as part of the petition, as a witness to that particular event. Mr.
Jon Oleson testified earlier. He was a witness to that event. During the first part of the
teleconferencing, as we were sitting in Hiloso from our view the teleconferencing was
Kona and Waimea Mrs. Naeole used the thumbs down gesture. And thumbs down
means your thumbs go down. Your hands are in a fist position. And you are
gesticulating up and down with your thumbs pointed down. I don't think any group of
people I'm referring back to Shelley Stephens' testimony, that some gestures mean some
things to some people and some gestures mean other things to other people but the
thumbs down gesture was used way back in Roman times, and it doesn't mean that any
more, thank goodness. That meant off with their heads, or thrown to the lions during the
arenas there, the gladiators and etcetera. But in today's time, thumbs down is a definite
negative gesture, and in anybody's language, I think, in anybody's culture or country.
And so for Mrs. Naeole to do this, and as she did this she actually glared at everybody
sitting in the Hilo room the Hilo room had a lot of people in it, and she only did this
when the camera was off of her and when the camera was on other people in Waimea
and Kona, so she couldn't be seen on DVD doing this, of course, because she was off -
camera. But it was I think a very discourteous thing to do, and I am underlining in this
instance (a) (3), the word courtesy. And I think also underlining the word fair. I think it
was unfair to the testifiers to receive that kind of what we perceived as an intimidation of
the rest of our testify and again, the testifiers were, round figures there were fifty of
them, testifying in all three locations against Mrs. Naeole being the vice chair of the
County Council. So this response on the part ofMrs. Naeole I feel was completely
discourteous and completely unfair to everybody.
CHAIR: Thank you.
FOLENA: You're welcome.
CHAIR: Mr. Smith?
SMITH: Yeah, just for the record, and I think the DVDs can actually prove this that
Mrs. Naeole 's statement that someone in the audience called her stupid is totally untrue
and ingracious, just for the record. And that can be proven. The point of the matter is,
24
again, I hark back to the behavior of the other council people. Now I've been going to
council for 20 years on various issues in my community. In fact, I Joyce and I have
actually been active in the community, at least at the council level, a lot longer than Mrs.
Naeole. And fifteen years ago the council was a virtual battleground of
discourteousness. We've had female council members that were verbally abused by male
council members. I don't know if the Board of Ethics was inexistence at the time. But
the point is that we've come along, long way. I mean, what aggravates me is the fact
that we myself, Joyce, and other members of this community have pushed to get this
council for years to treat the public with courtesy and respect, and you know I mean, I
have not seen an individual that is as badly behaved in council as Mrs. Naeole, except for
maybe Jim Rath. And I mean I'm sorry, this is not I understand your logic, but I don't
understand Mrs. Naeole 's behavior in the face of how the other people behave themselves
in the council, all right. I just don't understand that. Oh, it's an expression of herself.
Well, you know, if I if she gave me a thumbs down gesture, should I give her a middle
finger up gesture? I mean, this is stupid. This is dragging the council into nothing more
than a little circus, or a little school yard, behavior. No. I'm sorry, this is not acceptable
to me. And this is not a single incident. This is something that she has done from, as she
pointed out, from day one. Again, why should a council member or anybody going in
office have to be taught how to conduct herself or himself in a civil manner? Again, we
have to sit there and verbally abuse each other in council? That's nonsense. And
because most of the people did not feel comfortable with Mrs. Naeole taking a position of
higher responsibility, and she makes a racial slur excuse me I'm sorry, I'm sorry, but
I mean, what I'm talking about is this is not a singular incident. So thank you, anyway.
CHAIR: Thank you very much. Just to clarify real quick. The thumbs down gesture took
place on June 16 or June 18?
SMITH: 16th
FOLENA: 16th. There was nothing happening on the 18th
SMITH: - -on the 18th, I'm sorry.
FOLENA: on the 18th
SMITH: I'm sorry, 16th
LCM: You were at that meeting, true?
SMITH: All day, the 16th.
FOLENA: All day long, from morning till night, though it seems incredible.
LCM: People do that, don't they?
SMITH: Yes, they do.
25
LUM: I'm looking at Mr. Azevedo's letter, and I'm not clear if he was the only one
where that signal was noted, or was it noticed that there were others
SMITH: - As far as we know, no --
FOLENA: No. No. Mr. Jon Oleson testified that he had seen but he wasn't specific to
this. He didn't say I saw her do the thumbs down in his testimony. He said he had
witnessed the violations of Mrs. Naeole, so if you want to contact him again and ask
him—
L UM.• - -oh, the gestures, okay
FOLENA: --yeah, that's what he meant
LUM: --Now who was it?
SMITH: Jon Oleson.
FOLENA: Jon Oleson. He testified earlier. Mr. Azevedo —the reason that you folks I
want to go on record, just so that the public reviewing this can understand what we're
talking about. Mr. Azevedo had written to you on June 18`h and you had read his letter at
your meeting. But Mr. Azevedo had not quoted the section of the Code ofEthics. He
didn't file a petition, and so I contacted Mr. Azevedo. I encouraged him to refrle with a
petition, and he was just too busy to do it. He drives a truck. So I asked his permission,
although I didn't really need to ask his permission, because now it's public record, to use
Mr. Azevedo's letter as a witness.
CHAIR: I understand what the question is, and as chair I don't have a problem with this
in terms of specifics and who it was gestured to. Mr. Azevedo specifically says that the
thumbs down gesture was to the first couple of speakers that day, and it was apparent to
many more people in that room. So I don't have a problem with the fact that it's not from
him, that the petition is not from him.
FOLENA: Thank you.
SMITH: Thank you.
CHAIR: Mr. Udovic, Mrs. Naeole?
UDOVIC: You know, as I indicated in my correspondence to the Board, quite frankly, as
unfortunate as it is, council members are elected specifically because they hold opinions,
and specifically because they represent their clients. And when they hold an opinion,
they could shake their head in a negative manner. They could make a thumbs down
gesture, or something of that nature. And I don't think this Board should be governing
the behavior, quite frankly, of the council members. I mean, it's just incredible that you
would expect every council member to sit at a council session with an impassive face and
not have any kind of passion in their commitments for who they represent. And whether
26
she did it or not, quite frankly, I think that she's allowed to express her opinion and to
say no, I don't agree with you. And she can say it no, I don't agree with you in this
way, or she can say no, I disagree with you. But either one of them I don't think have
raised to the level of ethical violations. They may once again be inappropriate
behaviors, maybe not something we'd like to see our council members do, butt don't
think it's an ethical violation.
NAEOLE: Yeah. I just want to say that my people in my district love me for who I am,
not who I going act to be. I not on one movie show when I'm at my meetings. I'm a real
person, very passionate. And so I think that's why Puna loves me, because I going do
what I got to do, and it's to mdlama all the people. Mahalo.
CHAIR: Mrs. Naeole, so you don't deny the fact that you gave the thumbs down gesture
during a meeting on the I e of June?
NAEOLE: You know what, I don't remember doing it. ButMr. Rodney Oshiro, he was
the county clerk assistant. He was there with me that day. I remember specifically, the
rest of my colleagues was in Kona. I was in Hilo by myself, and Rodney was there with
me. I don't remember doing it.
CHAIR: I don't understand what Rodney has to do with it. So you don't deny it, or
NAEOLE: - -Well the thing is, if anybody was the proof to working with the County that
day, was Rodney Oshiro. And soI don't remember doing it. But maybe if I did, like my
lawyer told me and just told all of you, that's not your kuleana. I do whatever I got to do.
It's not to make disrespect to anybody, you know. And so maybe if I did do thumbs down,
it's I no agree with your mana `o.
CHAIR: Exactly, and
NAEOLE: - -but you can still say it. Anybody can say anything. I agree with some
things. I no agree with everything. And like, you know, our last Greg said that that
word stupid wasn't oh, it was said over and over, and over and over. And so I don't
appreciate that, because as a native person, and being suppressed in my childhood, that
word irritates me, because people think I not smart enough, that's why somebody else
should be in my seat. No, I don't think so. I'm pretty smart. Thank you.
CHAIR: Okay, Mrs. Naeole, like I just refrained from interrupting you in the middle of
what you were saying, the problem I have with this is that when somebody's giving
testimony, and a gesture like this, which is clearly interpreted as disagreement with what
they're saying it's the same thing as interrupting them in the middle of what they're
saying and telling them that you disagree. I think it kind of rises to the level of
discourteousness, and not only that. I think what I really have the big problem with is
that it shows a lack of respect for the system that you're apart of, the legislative process
that you got elected to serve. What frightens me is that gestures such as this while
someone's giving testimony might discourage somebody who's sitting in the audience,
who's nervous as all get -out but believes passionately about something hold on it
27
might discourage them from wanting to come up and testify how they feel about a certain
subject. If they feel they're going to be treated like that by going up there, what it will do
is limit the participation of the process. That's what I have a problem with. I'm not
saying it's wrong for you to disagree with somebody giving testimony, but what I fear is
you're discouraging people from being part of the process and hearing equal sides and
voices.
NAEOLE: All right. So I need to tell you back, a mana `o back to you. Nothing she
said there's nothing on video. And I say I no remember doing it. And I just told you that
Mr. Oshiro was in that room with me, when I was there by myself, as the County worker.
So with all of that calculation, they got somebody to say that that happened. But I just
feel in my heart that my mana `o is just as good as their mana `o. So they have
CHAIR: -Fm not questioning that, I'm not questioning that. I'm just questioning the
process, and threatening the process by those gestures.
NAEOLE: All right, thank you.
CHAIR: Anybody else have any questions, please
GENTRY: I was wondering. Have people from your district, or even not in your district,
approached you about what they perceived as inappropriate behavior on your part, or is
this the first time?
NAEOLE: No. You know what, it seems like to me, there's certain people that come to
our council a lot, and maybe they might not have anything else to do. My people in my
district love me. When you follow me around, just like Raymond Beason said, the people
love me. Igo anywhere. They're all flocking over me, kissing, hugging, loving. That's
the kind of daily walk I have in my community not only in my community, the rest of this
island, wherever Igo. So there's certain people that no like me, and that's their right.
That's their right. And so that's all I have to say.
LUM: I wonder, Ms. Naeole you know, it is obvious thatpeople have very warm
feelings for you and that you're a very generous, kind of loving person. So I, too, am
having problems, because to me you're the kind of person who would want to hear from
everybody, whether they agreed with you or not, and that I, too, am afraid that maybe
this little bit too passionate, lack of control, maybe does discourage people. We on this
Board have had situations where people try to intimidate us by threats or whatever. It
does make you very uncomfortable, and it maybe surprises me that I would think that
you would want to be encouraging to everybody, no matter whether they agreed with you
or not, to have their say. And I'm afraid that gestures, or this interruption which I think
a gesture interrupts would be like you speaking out, would be discouraging to people
and make them feel like you say, make them feel maybe a little stupid for what they're
trying to say, or make them say, oh, I don't want to go up there, what if she does that to
me?
NAEOLE: Okay, so I need to say something. If you check the track records for almost
three years, there's other of my colleagues that has been massively rude to people. I'm
not going to name nobody's name, but people 's been rude to people around this whole
island. And I never see them come before the Board of Ethics. Nobody else but Emily
Naeole come before this Board of Ethics. I need to remind you guys about that. I been in
this office almost three years, and I only see one person getting slandered and slam -dunk
here in this ethics meeting. Nobody else, butpersonally myself. I've watched my
colleagues, certain ones of them, slam -dunk people all the time. That's the natural habit,
right? And it's all good. Everybody's all good but only Emily Naeole. I just need to
say this, because it's reality. And so only me come before the Board of Ethics. Nobody
else.
CHAIR: Ms. Naeole?
NAEOLE: Yes?
CHAIR: I speak for the whole Board where
NAEOLE: - -You had other people in here?
CHAIR: No, when I say that we would much prefer not seeing you. You have a lot of
work to do.
NAEOLE: Thank you. Even me, I get choking work to do.
CHAIR: Unfortunately, we only can deal with the petitions that are provided to us.
Frankly, if you had told the person giving testimony that you disagreed with them, and
told them directly after they're done giving testimony I disagree with what you said
I'd have no problem with it. But in the middle of their testimony, to give thumbs down
not only sends a message to them, but it also sends a message to everybody in that room
who can see on the videoconferencing. And I think it discourages them
NAEOLE: - -Yeah, but only if that was real, yeah? You wasn't there, so you never see it.
CHAIR: No, but I can only take what was said on the petition, right?
NAEOLE: Yeah, and I got to say what I got to say on my end. She says what she says. I
got to say what I say. Mahalo. Thank you. Lawa. Any more questions?
CHAIR: You guys got any questions, or you want to deliberate?
GENTRY: I have a question for the petitioner.
CHAIR: Okay.
NAEOLE: Thank you.
29
FOLENA: Ms. Gentry?
GENTRY: Yes. So my question is this. Realizing that you've observed Councilperson
Naeole's behavior over all this time
FOLENA: - -Yes
GENTRY: - -wait, one moment. Did you approach her and say hey, what you did was
offensive to me, and perhaps it didn't have to come this far?
FOLENA: No, I did not.
GENTRY: Okay. That's the only question I had.
FOLENA: May I tell you why I did not?
GENTRY: Yeah, sure.
FOLENA: I approached Mrs. Naeole at a public meeting, when Mrs. Naeole had called
the public meeting because she did not support the West Side Civic Center. The public
meeting was held in Pahoa. After the meeting was over no, sorry, it was during I
think it at the intermission of the meeting, or after it was let me think back. Hold on, it
was quite awhile ago. During the after the meeting was over, we approached Mrs.
Naeole and we wanted to express to her our reasons why we had supported the civic
center, and Mrs. Naeole refused to talk to us. She just turned away from us, and we
waited till she turned back. And we approached her again. She got up and she walked
away. So we felt okay, it's difficult for us to talk to her because she knows that we
oppose her. Now there was a second instance where we went into Mrs. Naeole's office to
talk to her about the traffic problem atMdlama Market, where Mdlama Market exits into
a small side street, and then that side street exits into Pahoa Road, Old Government
Road. There area lot of traffic problems there. So we didn't know that was actually
State jurisdiction. We thought it was County. So we went into her office, and she treated
us very cordially. It was very nice. And we told her of our concerns, and Mrs. Naeole at
that time decided to talk to us about the Bible and God, which is okay.
UD0VIC:
FOLENA: But the reason sorry, counselor, I'm right on track. And the reason that
UDOVIC: I would object. I think we're going well beyond
CHAIR: - -Well, hold on, if you could just wrap it up
FOLENA: - -The reason that we did not, we did not, we did not approach her is that we
felt that it wouldn't do any good. That's why we came here instead. Thank you,
counselor.
30
CHAIR: Board members, do you have any other questions, comments? Good? If I could
call for a motion for an informal advisory opinion that Councilwoman Emily Naeole, as
referenced in Petition No. 2009, and the actions therein, was in violation ofArticle IS,
Section 2 -83(a) (3), County Code of Ethics.
L UM: Courteous, fair, and impartial.
NICHOLSON: All right, I'll speak again. I again, I feel that if this behavior did take
place, it was inappropriate, should not have happened, and I'm sure that there are other
council members who have also done things that are inappropriate to the public and to
each other but this is the petition we have before us. And even though I feel like it is
inappropriate I personally would find it offensive again, tome, I don't think that we
can find it as an ethical violation. I think we could provide a note of caution, as we have
in the past. But to me this does not rise to the level of an ethical violation.
CHAIR: Okay. One of the things that in Section 83, all persons shall be treated
courteous, fair, and impartial. The petitioner emphasized courteous and fair, and frankly
I'm my thinking is that I don't think the behavior was impartial at all. I think she was
making it extremely clear that she disagreed with the person giving testimony. And I
think by doing that it really threatened the full participation of everybody involved and
may have discouraged others who want to give testimony
UM -- That's what worries me
CHAIR: -- because of the lack of impartiality there. And so that's where I see the
violation.
LUM: There's an intimidation aspect to it, facet to it, an appearance of intimidation.
CHAIR: And like I said earlier, I would have had no problem if she stated that she
disagreed with the testimony, given after the testimony was given. But to give kind of a
blanket disapproval of what was being said during the testimony is a clear lack of
impartiality.
NICHOLSON: I think part of the problem I have is that we have a difference of what this
was. We didn't see it. So we don't know the context of exactly how this happened, and
we have people that can tell us what they saw and what they witnessed, but we didn't see
it. So I have a little bit of a problem for us censuring someone for something that we
ourselves have not seen the evidence of. And because it was not captured on a tape,
there's noway we can view it, so I thinkwe can the most we can do is caution, give
some cautions and some warnings. But I don't know that we could particularly cite that
gesture. And some of these things are involuntarily. I think sometimes you do—you
frown, you squirm in your seat, and so she might not have even been aware that she was
making that gesture, if she did. Again, I think if she did, it was inappropriate. But I don't
feel like we can justify censuring something that we cannot verify and that we can't see in
the context that it happened.
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L UM: We did have
CHAIR: - -the letter from Buddy Azevedo.
LUM: We had the letter, and we had the testimony, the public testimony
CHAIR: - -as well as Joyce Folena's witness, right, and Gregory Smith.
LUM: Yeah, we did have that, which is all we go on anyway. I still think that the fact
that it happened during testimony and other people could see it I don't thinkpeople are
lying here. There 's that aspect of an appearance of trying to control the testimony that
really bothers me that intimidation, those kinds of things, that appear to try to limit
testimony. And I do think that that wiggles over into ethics when you try to control
what's being said or not being said.
NICHOLSON: And I do agree with that. I do agree that it's inappropriate. I just don't
know that we can really get a finger on it well enough.
CHAIR: Could we get a motion
LUM: - -Do we have a motion?
CHAIR: No.
LUM: I will move
GENTRY: --There's no motion, except that this could this appears to be, from different
people, that this pattern of behavior is consistent.
LUM: I will make the motion that we frndMs. Naeole in violation of 2- 83(a) (3) for not
treating the testifiers in a courteous, fair, and impartial manner by making gestures,
negative gestures, during the testimony in view of others,
CHAIR: Is there a second?
GENTRY: Second.
CHAIR: Any discussion? All in favor, say aye.
LUM, GENTRY, MARTIN, CHAIR (simultaneously): Aye.
CHAIR: Opposed?
NICHOLSON: Aye.
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MARTIN: John, you know something I've been thinking about, is a comment was made
earlier, a question was asked earlier, whether or not new council people are given some
kind of
CHAIR: -- training
MARTIN: -- training when they first get in, and it sounds to me like the council has never
done anything like that. Maybe it's something that the County Council ought to think
about, how to conduct itself in front of the public.
CHAIR: Yep. I think the chairman sets the tone for the meetings, and we're all adults
all adults at the meeting, and hopefully act as such. But that's a good idea, and it's a
recommendation that we might want to make later.
L UM: I think that that, too, even just procedurally, if you're going to disagree, hold your
disagreement until it finishes. That just might even say that you have the right to
disagree, but how you do it and when you do it is what becomes important.
CHAIR: Hold on, counselor wants to say something. Yes, ma'am?
SCHOEN: Mr. Chair, just in response to Mr. Martin's question. The Corporation
Counsel's Office does provide training in OIP, in ethics, to all new newly elected and
appointed government officials. So that does happen. I also wanted I thinkMary had a
question about your vote, and so just so the record is clear, could you guys state your
vote on the record, just soI don't think she heardMr. Martin's vote.
CHAIR: You're in favor of the motion?
MARTIN: Oh, yes.
GENTRY: It's four to one, yeah.
C. Petition No. 2009 -8: Petitioner is seeking an opinion from the Board on
whether his employment as a property manager with the County of Hawaii
is in conflict with his ownership of a small real estate company which will
have no transactions with the County.
CHAIR: Okay. And we move to Petition No. 2009 -8, petition from Kenneth Van Bergen.
VAN BERGEN: Ken Van Bergen, Property Manager, County of Hawai `i.
SCHOEN: Mr. Chair, if I may interrupt again, I'm sorry. The petitioner, Mr. Van
Bergen, didn't indicate on his petition whether or not he wanted an open or closed
meeting, so maybe, if I might take the opportunity to advise him that he may ask that the
Board consider this matter in a closed hearing outside of the presence of the public if you
believe that personal matters, financial matters will be discussed. If you choose if you
want to have a closed hearing, the Board will nevertheless have to vote upon the matter
33
and decide that the hearing should be held in closed fashion, closed to the public. So it's
up to you if you want to have an open or closed meeting. Everybody's leaving the room,
but Mary does take minutes. The minutes are published. So what's your pleasure?
VAN BERGEN: Open 's fine.
CHAIR: Okay. If you can just briefly summarize your petition.
VANBERGEN: I started with the County of Hawai `i five weeks ago, and about my
second week or so on the job I asked Nancy Crawford, the director that I report toI
have a broker's license, an active Hawai `i's broker's license, and own a small LLC in
Kona. We manage one building that my wife takes care of and is that okay? She said
probably, but I should petition the Board of Ethics just to get and to make
sure it's okay. So in summary, I do own Trask Commercial Realty, LLC. It's a two -
member LLC that my wife and I are the two members. At this point I manage one
building in Kona. It's not a very active business at this point because I'm full -time with
the County, but I'd like to keep the income that we do have from it, managing that
building, and have other opportunities to maybe add some more buildings if that comes
across. It's something that I won't do personally, but my wife would do.
CHAIR: What department are you in, I'm sorry?
VAN BERGEN: Department of Finance, Property Management Division.
CHAIR: So just to clarify, you have no direct contracts with the County of Hawai `i?
VAN BERGEN.- No, and I think in my letter I stated nor will I, as long as I'm property
manager, ever have any County contracts.
CHAIR: Yes?
NICHOLSON: What does the County of Hawai `i property manager do? I don't have a
clue.
VANBERGEN: Ask mein a few months. Our primary role is to—we deal in all
acquisitions and sales of County real estate. We deal in any leasing activities the County
might engage in. We are involved with the PONC, or the Open Space Commission and
represent the County with that. We also are in charge of the personal property
accounting system and any public auctions we might have, whether it be vehicles, real
estate, or any other type of County possessions that they want to dispose of.
NICHOLSON: And another question. When you were hired, were you hired in part
because you have areal estate background? Was that part of the qualifications that you
had?
VANBERGEN: Absolutely. Yeah. We've owned Trask Commercial we moved to
Hawai `i six years ago and started it back in 2003. Last couple of years I actually worked
34
for Merrill Group Development and Resort Properties, and I think my whole real estate
endeavors helped me get the job with the County, with my commercial background and
my development background.
NICHOLSON: And I have yet another question.
CHAIR: Sure.
NICHOLSON: So what kind of conflict do you think could arise? In what kind of activity
that the County might engage in would you feel you might have a conflict with your - ?
VANBERGEN: If Trask Commercial Realty were to, for instance, get a listing on a
building to lease. Obviously, I pick who we I negotiate the leases on behalf of the
County, so to have me representing the County and my wife representing Trask
Commercial would not be appropriate. So that would be one, if we got a listing, or
owned a building we do at time to time buy real estate. Any kind of sales to or from the
County represented by Trask Commercial Realty would probably be a conflict. And I
have no intention of working with the County at all. I'm just simply it's a business that
we own, we have income from, and I'd like to keep it. So I have no interest in working
with the County with Trask Commercial Realty. That would be a conflict if that were to
happen. Is that clear?
NICHOLSON.- Yes.
VAN BERGEN: Okay.
LUM: So ifyou were let's say day after tomorrow you buy a building. And three years
from now you're in the job and the County says oh, I'd really like to use that space. You
really couldn't do it.
VAN BERGEN: No. No. I have no interest in doing that, for obvious reasons.
CHAIR: Okay. Any other questions?
SCHOEN: Can I ask one real quick?
CHAIR: Sure.
SCHOEN: So you're asking basically that you be able to keep your license active
VAN BERGEN: - -Yes
SCHOEN: - -while employed with the County
BERGEN: - -Yes. I am the broker's license. My wife has areal estate license. So my
broker's license is what allows us to transact brokerage business. So I'm just asking to
35
keep my license active with the understanding that in no way will my company have any
dealings with the County of Hawai `i as regards to real property.
SCHOEN: told you whether or not your retention of your license would
be a violation of the Code of Ethics?
VANBERGEN: That's correct. And just to know, we have no agents. It's a very small
LLC, and we're not looking to grow the business, so to speak.
MARTIN: I don't see a problem, unless your broker's license did something with the
County, but like you said you won't do it anyway.
VANBERGEN: No.
MARTIN: I think that's a decision you'd have to make.
CHAIR: Well, it would be in violation of the County Code, so
VANBERGEN: Yeah.
CHAIR: All right, does anybody have a problem with Mr. Van Bergen keeping his
broker's license?
GENTRY: No.
CHAIR: Can I have a motion
LUM: --As it stands now I don't see there's a violation.
GENTRY: I don't see any. I move that there is no violation at this time on this particular
petition, that the petitioner can maintain his broker's license, especially since he was
hired based on his real estate expertise.
NICHOLSON: I'll second.
CHAIR: Okay, all in favor?
ALL MEMBERS (simultaneously): Aye.
CHAIR: Opposed? All right. Thank you, sir.
VANBERGEN: All right, thankyou.
CHAIR: Okay, moving on to d., Counsel's Report Regarding Matters and/or Inquiries
Received by the Board.
36
d. Counsel's Report Regarding Matters and /or Inquiries Received by the
Board, including:
(1) Gift Disclosure Statements received from Brian DeLima (Merit Appeals
Board), Searle Grace (Salary Commission), Patricia Provalenko (Salary
Commission), and Henry Silva (Merit Appeals Board).
(2) Incomplete and /or moot petitions filed with the Board, if any.
Ms. Schoen explained that this is a new agenda item and would be a way for her to report
on miscellaneous inquiries and documents received which did not need to be acted upon by the
Board. It would provide a way for her to inform the Board on various happenings on her end.
She understood Mr. Rees' comments and concerns about moot petitions during today's
public testimony. However, in some situations a petition will be filed regarding a person who no
longer works for the County. The Board would therefore have no jurisdiction, and the petition
would be moot. Petitions which are incomplete or unclear are also sometimes received.
For the four Gift Disclosure Statements on today's agenda, each was reporting that no
gifts were received, so they were not required to be filed and the Board did not need to review
them.
Motion and vote: Ms. Gentry moved to accept Ms. Schoen's report on the four
disclosures and for them to be filed. Ms. Nicholson seconded the motion, and all members voted
aye.
For the occasional incomplete or unclear petitions which are received, Ms. Schoen asked
the members whether they preferred her to request more information or clarification from the
petitioners before presenting them to the Board, or whether they preferred to have the petitions
agendized as they were received for the Board's review and determination. The Board members
said they preferred that Ms. Schoen determine the sufficiency of petitions and communicate with
petitioners for clarification before agendizing them.
6. UNFINISHED BUSINESS
a. Further discussion /update on clarifying lobbyist registration requirements,
including Communication No. 2009 -63 (9/2/09 letter from County Clerk
Kenneth Goodenow regarding recommended changes to the Lobbyist
Registration Form and accompanying instructions).
Ms. Schoen said that at the last meeting, the Board voted to adopt Levi Hookano's
suggested changes to the forms, and this communication had the new form and instructions
attached.
Mr. Hookano said that the new form removed the reference to attorneys being exempt
from filing.
37
Motion and vote: Ms. Gentry moved to accept and file the communication, Mr. Martin
seconded the motion, and all members voted aye.
Motion and vote: Ms. Lum moved to go to Executive Session, Ms. Gentry seconded the
motion, and all members voted aye.
12:15 p.m.: The Board left Regular Session.
12:26 p.m.: The Board returned to Regular Session.
7. EXECUTIVE SESSION (voting)
a. Approval of August 12, 2009, Executive Session minutes.
Motion and vote: Ms. Lum moved to accept and file the Executive Session minutes,
Ms. Gentry seconded the motion, and all members voted aye.
b. Review of Confidential Financial Disclosure Forms filed pursuant to Section
2- 91.1(d), Hawaii County Code, by County board and commission members
and designated County employees, where personal matters will be reviewed.
Motion and vote: Mr. Martin moved to accept Sherman Warner's confidential financial
disclosure, Ms. Gentry seconded the motion, and all members voted aye.
8. ANNOUNCEMENTS
The Chair announced the next meeting as being scheduled for October 14, 2009, at 10:00
a.m. at the same location.
9. ADJOURNMENT
Motion and vote: Ms. Gentry moved to adjourn, Ms. Nicholson seconded the motion,
and all members voted aye.
12:27 p.m.: The meeting adjourned.
Respectfully submitted:
Mary E. Crosson, Secretary