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HomeMy WebLinkAbout2011-01-12 Board of Ethics MinutesHAWAII COUNTY BOARD OF ETHICS MINUTES — REGULAR SESSION1 Wednesday, January 12, 2011 10:02 a.m. to 11:25 a.m. 101 Aupuni Street, Suite 145 (Lagoon Centre Conference Room) Hilo, Hawaii 96720 Members and staff present: John E. K. Dill, Chair Arne T. Henricks, Member Bernard Balsis, Jr., Member David Heaukulani, Member Renee N. C. Schoen, Deputy Corporation Counsel Mary E. Crosson, Secretary for the Board Shanell Sarsuelo, Assistant 1. CALL TO ORDER The Chair called the meeting to order at 10:02 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE MINUTES OF THE DECEMBER 8, 2010, REGULAR SESSION Motion and vote: Mr. Heaukulani moved to approve the minutes, Mr. Balsis seconded the motion, and all members voted aye. 4. NEW BUSINESS a. Election of vice chair (due to the end of term of the former vice chair) Motion: Mr. Heaukulani nominated Mr. Henricks. However, Mr. Henricks declined, explaining that he is serving on a month -to -month basis and did not want to be locked in. Motion and vote: Mr. Balsis nominated Mr. Heaukulani. Mr. Heaukulani reluctantly accepted the nomination, stating that he had a full plate. Mr. Henricks seconded the nomination. 1 Minutes in italics are verbatim. Blanks indicate inaudible or indecipherable speech. Motion and vote: When the Chair asked if there were any further nominations, Mr. Henricks moved to close the nominations, and Mr. Balsis seconded. All members voted aye. b. Petition No. 2010 -10: Initial review of petition alleging that an officer did not treat Petitioner in a "courteous, fair and impartial manner" at Petitioner's confirmation hearing. CHAIR: Just so everybody's clear here, both Petition 2010 -10 and 2010 -11 are on the agenda today for an initial review only. We will not be holding a formal or informal hearing today. We will be deciding whether or not to move forward or to dismiss both petitions. So Mr. Lee, would you mind coming up here for a second? And do you have any representation or anybody with you? LEE: No, just myself. SCHOEN: Mr. Chair, if I may, just for the record. The respondent did provide the Board's secretary and myself an email stating that she could not be available to the hearing this morning. Something came up at the last minute, so just so the Board knows. CHAIR: Are there any representatives for Ms. Ford present? No? Okay. All right, thank you, counsel. Mr. Lee, could you obviously we have your petition here, but could you kind of give us a rundown quickly of what took place and the background on your petition? LEE: Okay, I was nominated for the Fire Commission, and I attended the Fire Commission hearing confirmation hearing at the County Council. At that hearing, Councilmember Ford asked me to—certain questions, and while I was explaining what happened, she said I'm incapable of telling the truth, in public. I never really I talked to her like three times before that, and she's I don't know what she's basing it on. But throughout the hearing she continually tried to single me out, intimidate me, and badger me. And after the hearing several people told me what happened was totally wrong. It felt like she was trying to intimidate me, so I filed a complaint. CHAIR: Okay, and just for the record, the section you're alleging was violated is 2 -83, fair treatment, paragraph (a) (3), essentially all persons shall be treated in a courteous, fair, and impartial manner, correct? LEE: Yes, sir. CHAIR: Do you know what compelled her to question your integrity? What was the specifics of her did she outright call you a liar? I haven't seen the video, so I just LEE: You know, in the video it's muted, so but she did say I'm incapable of telling the truth. On the part I responded to, where I said I'm not a liar, is when previous to that she said liar, but it's not on the video. But I responded that I'm not a liar. She was asking me to summarize what a previous conversation was, based on a previous public hearing that happened in Puna. 2 CHAIR: A completely unrelated issue to your nomination? LEE: It's totally unrelated to my nomination. CHAIR: This was on the November 4 1 council meeting, right? LEE: Yes. Yes, sir. CHAIR: Board members, do you have any questions for Mr. Lee? HENRICKS: Yes. Mr. Lee, you said that she did call you a liar, using that word specifically, is that correct? LEE: Yes. HENRICKS: All right. You say this was not on the video? LEE: No. I watched the video after, and it's not HENRICKS: --Do you know any reason why it wasn't on the video? LEE: Well, the council members that were present were in front of me, but she was in Kona. So it may not have been captured on the video. But my response is when she said it, my response is clear into the microphone, you know, I'm not a liar. HENRICKS: Well, the reason I question it is because that's a loaded word, you see. And I'm going to center in on that word, because and as the council chairman or anybody here would tell you, this is a very subjective type of call. I mean, sometimes you have a give - and -take, and sometimes you have to call them as being disrespectful or not disrespectful. It's very subjective. So when someone uses a loaded word, we'd like to look at that word and see if that's proper or not. So that's very important, that that word be in there. Is there anybody else hear that heard her call you that that you could bring forward or have a statement submitted to the council? LEE: Well, I have two people here, but I didn't ask them specifically if they heard that word used. HENRICKS: Okay, can you get anything for us that would show that she said this actually to you, called you that word? LEE: Okay, yes. HENRICKS: Okay, if you can get me something like that, or get the I think that would be very important to us, you understand? LEE: Okay. 3 HENRICKS: Okay, the second thing I want to ask you, and I'm not going to ask you anything more than that, because I think wed have a video to clarify it for us is was this a give - and -take situation? LEE: In what, what HENRICKS: - -You know, like give - and -take, if you 're going after her and she's coming back after you, this LEE: --Not, not at all. I mean, not at all. And that's why I feel like HENRICKS: -- You're completely innocent, you can completely innocent victim? LEE: I can completely HENRICKS: - -You didn't goad her or bait her in any way? LEE: Not at all. HENRICKS: Okay. LEE: In fact, in the previous hearing, and that's when - -I think when she had the previous hearings, people were coming after her and she targeted me as the representative of a company. HENRICKS: Well, the reason I ask that is because a lot of times when you go and look at public hearings, some people come forward in testimony and they'll actually try to get a reaction out of a council member. You know, they'll actually bait them to make a reaction. And so therefore I'm just saying that wed look for that, too, you understand. LEE: Well, you know, the video's very clear. The context of what happened was I mean, even after I've been through public hearings on Oahu, Maui, Kauai, Kona, and what I went through there, it was bad. I mean HENRICKS: So to find out what happened, we just really have to look at the video LEE: --Right, yeah -- CHAIR: - -Yeah, and just as a reminder to the Board and everyone here, we are just deciding whether to move forward on this. And speaking of subjectivity, this particular section of the Ethics Code is very subjective, but your claims that you felt it was in violation I feel is enough for us to take it further and to look into it further. LEE: Well, I appreciate it. I mean, just the context of the courteous and fair treatment, I didn't feel that was that happened. 11 CHAIR: Got any questions from any other Board members on this? Now again, another reminder is we'll need to decide whether or not to move this to a formal or informal hearing at a future date, if the Board does decide to move forward on this. So it's something to consider. Any discussion on that subject? HENRICKS: I move we go to a formal hearing. CHAIR: Okay, so we have a motion BALSIS: - -I'll second it. CHAIR: And a second. Discussion? SCHOEN: I'm sorry, did you say formal? HENRICKS: Yeah. HEAUKULANI: Discussion? CHAIR: Yes. HEAUKULANI: Is there any way we're going to see the evidence you're askingfor? CHAIR: Yes. HEA UKULANI: Okay. BALSIS: We're going to see the video of that thing? CHAIR: Yeah, and I will make sure we work something out with Mary to get the video. I don't think we have detailed minutes of that meeting, per se, but maybe we can get a summary of that as well. Okay, so we have a motion and a second to move this to a formal hearing. All in favor, say aye. HENRICKS, BALSIS, HEAUKULANI (simultaneously): Aye. CHAIR: Aye. Opposed? Thank you, Mr. Lee. We will let you know when that date is. LEE: Thank you for your time. CHAIR: Appreciate your help. All right, thanks. C. Petition No. 2010 -11: Initial review of petition questioning whether an officer had a conflict of interest when voting on Bill 283, and whether statements made by the officer caused the officer to violate financial disclosure requirements. CHAIR: Is the petitioner here? 5 CADAOAS: Here I am. CHAIR: Okay, could you come up and I had trouble deciphering your last name, sir. CADAOAS: My name's Michael Cadaoas. CHAIR: What's the last name one more time? CADAOAS: Cadaoas. CHAIR: Cadaoas. Okay. All right, and you are the section you're looking at here is can you help me out, counsel? What Ethics Code section are we looking at here? SCHOEN: Well your honor sorry, not your honor. Mr. Chair. Actually, there is no specific provision stated in the petition itself, but I read that there are three allegations. Actually, why don't you just look at page 2, statement of the position or contention of the petitioner. So the first sentence appears to be a question regarding whether or not Councilmember Yagong has any connection to Malama Market. So that is not specifically addressed to a specific Ethics Code section. The second sentence does request inquiry regarding conflict of interest. So that section would be 2 -84, and I would probably think it's (a)(1), no officer or employee shall take any official action directly affecting a business or undertaking in which that officer or employee has a substantial financial interest. And then lastly, regarding whether or not there was a violation of the financial disclosure requirements. But yet again, you might want to inquire with the petitioner since it's his petition. CADAOAS: Also I looked at section 2 -86, informal advisory opinion, (b). CHAIR: Yes? CADAOAS: Any person or the Board itself may petition the Board for an informal advisory opinion in an alleged violation of the Code of Ethics. CHAIR: Right. Yeah, that's the basis of your being here today, and that's why we're trying to figure out if we're going to move this to an informal, formal, or dismiss with cause, without cause or whatnot, okay. Well, thank you for taking the time and coming here. I did review your petition, your statement, as well as the minutes from the meeting, the August meeting, as well as the financial disclosure forms. One question I had for counsel and/or Mary. The financial disclosure forms that are attached for Mr. Yagong for 2008 essentially, the one I'm questioning is the last one, the front page, we have a received stamp there. It's got the it's crossed, it's 2010, correct? SCHOEN: Mr. Chair, I'm not sure what that is. As an elected official, Council Chair Yagong would file his financial disclosure with the Clerk's Office, so I don't know what that is. I CHAIR: All right, well, we can ask Mr. Yagong if essentially I think it's just the past few years' disclosure form. Mr. Yagong, have you seen that? YAGONG: Yes. CHAIR: Essentially your last, most recent YAGONG: - -Yes. All elected officials are required to file financial disclosures. CHAIR: Okay. Now a question for you, Mr. Yagong, is the one that is marked 2010, does show source of income as Food Pantry, Ltd. YAGONG: Yes. CHAIR: So your employment there began and ended when? YAGONG: I worked with Food Pantry 2000 to present. My employment never ceased at Food Pantry. CHAIR: Okay. On page 39 of the minutes, you're quoted as saying I am not affiliated with Kalama Beach Corporation, I no longer work for Malama Market, I haven't worked for them in over a year. YAGONG: Would you like me to expound on that? CHAIR: Sure, please. YAGONG: At that hearing for Bill 283, the developer, Paul Ogasawara, asked at the table that he wanted to ask Mr. Yagong a question, and his question was whether it was a conflict of interest because I worked for Malama. At that point, as you notice, the chair of the committee, Mr. Ikeda, at that time said that he would not hear that question, and he actually tried to move on. But what I did was I said I want to answer the question. CHAIR: Right. YAGONG: And if you see the my answer was that I'm not affiliated with Malama Market, that I haven 't worked with Malama Market for over a year, which is exactly correct. When I worked for Malama Market, I worked as a district manager prior to June I'm sorry, June 201h of 2009. At that point in time I went and I'm assigned to manage Whaler's General Store at the King's Shops in Waikoloa, as well as the Waikoloa Beach Shell. So that's actually where I work since June 20th of 2009. And that's there until the present time. The hearing on this thing took place on August 17`h I think, is the date in question. Iliad when I left, or when I did not I'm sorry, when I went to work for Whaler's General Store, I had not even stepped into a Malama Market until I think the 151h of August of 2010. And as district manager, I was in charge of personnel, sales, profits, service and so forth. I am no longer district manager, and I operate those two businesses in Waikoloa. So I have absolutely no dealing whatsoever with Malama Market. Malama Market is a separate division from Food Pantry. And I 7 know you said you folks didn't want to receive any information today, but I did bring information that shows you that the businesses are independent and separate. And I don't know, Mr. Chairman, if that would be appropriate at this time. CHAIR: Okay, yeah, sure. YAGONG: You can give all the commissioners a copy. CHAIR: Just for the record, the petitioner has also included some information on Kalama Beach Corporation as well. And, thank you, Mr. Henricks for reminding me that we are trying to decide whether to move forward on this or not. We're not trying to make YAGONG: - -I understand. But I think I'm willing to make a difference as to why to answer the petitioner's question of whether I'm affiliated with Malama Market and whether there's a conflict and of course, my disclosure. HENRICKS: Well, if I can jump on the chair a little bit and just try to get this done a little bit quicker. We're not even there yet. We don't care about your relationship with Malama Market. I want to ask you a question, sir. CADAOAS: Yes. HENRICKS: Why do you think that he's in conflict? CADAOAS: Why do I think he's in conflict? HENRICKS: Yes. CADAOAS: Because I think as my when I showed that papers on Malama Market, it says he 's not affiliated with Malama Market HENRICKS: --No. Why do you think he's in conflict? CADAOAS: Okay, I'm explaining. HENRICKS: No, why do you what is Malama Market's position on this? CADAOAS: They'll okay, he HENRICKS: -No, what is Malama Market's position? CHAIR: Wait a second, Arne. He's not working for Malama Market. He 's a private citizen. HENRICKS: No, no, what is their position, though? To be in conflict, we must know what Malama Market's position is. CADAOAS: Malama Market? HENRICKS: Yeah. Are they against the shopping center? CADAOAS: No, I don't know. HENRICKS: That's it. They've got to have a position for him to advocate it. If there is no position, he can't be advocating a position. CHAIR: Okay, okay, hold on, Arne, let's HENRICKS: - -You have to determine before you make a conflict of interest, you've got to need to remember what the interest is. CHAIR: Okay, calm down, number one. HENRICKS: Okay. CHAIR: Number two, okay, we have a petitioner here, and yes, he is alleging a conflict of interest, okay. Number three, we need to treat him with respect, and everybody here, okay. If you 're asking him HENRICKS: - -okay CHAIR: - -hold on, if you 're asking him what he thinks the conflict is, then allow him to answer. How do you think there was a conflict in Mr. Yagong voting on it? CADAOAS: Okay, in his statement, he says he's not affiliated with Malama Market. CHAIR: Correct. CADAOAS: Okay? Now in the other forms I sent, where he works at, and if you look, all three entities are clearly affiliated with each other. There is that's interest, right there. CHAIR: Okay. Because they're Kalama Beach Corporation, Food Pantry, these are the corporations that are either acting as agents or whatnot, you feel the conflict lies there CADAOAS: --yes-- CHAIR: -- because Mr. Yagong did vote on Bill 283 while employed for Food Pantry. CADAOAS: Yes. CHAIR: All right. Does that answer your question, Arne? HENRICKS: No, I'm trying I want a step before that. Before you can even get into the fact of whether he's with Malama Market or not, you must determine whether Malama Market has a position, an opposition to the shopping center. Because to advocate a 9 position, we have to know what position he's advocating, pro or against. At this point I don't know what Malama Market's position is as to the shopping center. Everybody's assuming that it was against the shopping center. CADAOAS: It's not against the shopping center. CHAIR: Yeah, let's get the facts straight. Malama Market was setting up a store out in Woodland area, right? CADAOAS: No, Malama Market is there already. Long's Drugs CHAIR: - -was setting up CADAOAS: - -Yes. CHAIR: All right. HENRICKS: Okay, maybe I can clarify it. Okay, when you have a conflict of interest, you have to determine what the interest is first, before you can decide whether there is a conflict with it. CADAOAS: Okay. HENRICKS: Okay. CADAOAS: The interest would be that with the delayment of Long's Drugs staying closed during the construction part of that road, it would benefit Malama Market. HENRICKS: Okay, that's what I wanted you to CADAOAS: Okay. HENRICKS: You think it would benefit Malama Market, but why would it benefit Malama Market? CHAIR: Because it would delay the opening of Long's Drugs, essentially. CADAOAS: Yes. HENRICKS: But why would that benefit them? CHAIR: They won't have competition. HENRICKS: No, the assumption YAGONG: - -Can I answer that? CHAIR: Sure, Mr. Yagong -- 10 HENRICKS: Wait, wait, wait, wait, wait. There's an assumption you're making. You see, you don't work on assumptions, you work on facts. You're assuming that Malama Market was against the opening of the shopping center, right? You're assuming that, right? CADAOAS: No. HENRICKS: You know that, for a fact? CADAOAS: What's that again? HENRICKS: Do you know for a fact that Malama Market was against the opening of the shopping center? CADAOAS: No, I don't. HENRICKS: Do you know that Malama Market was in fact trying to delay the opening of the shopping center? CADAOAS: No. I know that they sell a lot of the same products, and it's the people choice what store they want to go to. HENRICKS: All right. CADAOAS: And with the delayment of Long's Drugs being opened, Malama Market would benefit. HENRICKS: You think that, though. But that's your position. Is that Malama Market's position, though? CHAIR: Time out, time out, Arne. Okay. What we're looking at here is a petition alleging that Councilman Yagong had a conflict of interest in voting on a bill, okay? We're not analyzing the market strategies of HENRICKS: - -but you have to because CHAIR: - -hold on a second HENRICKS: --you have to understand the interest first. If there is no interest by Malama Market, how can he be YAGONG: Mr. Chairman, Mr. Chairman? CHAIR: Yes, sir. YAGONG: Being that it is my integrity that's being placed on the table here, saying that I used my position to benefit Malama Market because Malama had an interest, if Mr. 11 Chairman, it is so imperative to that question, that I really tell you what this issue is, very briefly, because it will show you that Malama Market has in fact, what I did was not in the best interest of Malama Market. It actually hurts Malama Market, and that's what I wanted to show you, Mr. Chairman, if I could. It will be very brief. But it's directly to the question by Mr. Cadaoas Mr. Cadaoas ? -- CADAOAS: - -Yes YAGONG: --Mr. Cadaoas bringing forth, because he's actually saying that there is a conflict of interest. It's so important for me to be able to tell the commissioners that when you take a look at the whole issue, and it's in your map but it's probably easier if you just look at this here, the whole issue is based on Highway 130, and I don't have to tell you that Highway 130 is one of the most dangerous roads in the state of Hawai `i. If you take a look at this section here, this is where Highway 130 meets the entrance to Malama Market. In order to go to Malama Market, you have to take a left or right in to this intersection to be able to go to the shopping center that has Malama Market. Malama Market only has one entrance to be able to go to that shopping center, only one. My contention on the Bill 283 was for the developer to build this right in, right out off of Highway 130 so that it'll alleviate the traffic off this intersection. By the way, of the ten most dangerous intersections in the state of Hawai `i, this is listed in the top three, this intersection here. So what we're trying to do was to make sure, before the applicant occupied the building, that we would actually have it in writing. What I meant was to have them have a certificate to get a certificate of occupancy, this safety improvement would have to be made. The problem and the reason for that was to be able to make it safer this is what the community was actually screaming for. But here 's to Mr. Cadaoas' question, commissioners, by advocating for the right in, right out, what that does is, it actually diverts traffic away from the only entrance to Malama Market. When you divert traffic away from a business, away from the area, you don't help them. It's like Hdmdkua Coast, when you had the old road that went through Pepe `ekeo and `O `okala and Laupdhoehoe, but you had all these small businesses along the way, then we built a highway through. All the businesses died, why? Because you diverted traffic away from the business. This decision or my action that I took had nothing to do with Malama. If I wanted to protect Malama, I would have never advocated for the right in, right out. Because this would make it safer for the people and by the way, not only for the people, but for the developer. Commissioners, I don't know if you folks know this, but in the end, when the final bill came out, I voted yes for the application. I don't want to assume that you folks knew that, but I did vote yes. And the reason I voted yes was at the last hearing, the developer told us, along with the State Department of Transportation, that the contractor was willing to work day and night to complete this before Long's opened. And just to let you folks know, although my amendment failed to have this done before they occupied the building, the construction was done before Long's opened up. They did exactly what I asked them to do, simply because it was the right thing to do, not to benefit Malama but to benefit the businesses there. In order to get to their without this right in, right out, in order to get to their shopping center, they would have to come to Malama and take this turn here. Long's couldn't even get a 40 foot container through this here without doing one of those zig -zag and trying to get in. They knew they had to get this opened to get their containers into their center. It benefited everybody. Most of all, it benefited the people of Puna, to make it safer at the most dangerous intersection in 12 the state of Hawai `i. Nothing to do with Malama Market. I would have withheld this requirement and not support the requirement if I had any interest in Malama Market. It was interest of public safety. Very simple. CHAIR: Okay, thank you, Mr. Yagong I think I think it's evident that for myself, I need to take a closer look at Bill 283. Again, I appreciate you explaining what the background and your motivations were on that. However, we still need to take a look at the allegations of the conflict here and take a closer look at Bill 283 as well as the corporate structure of Klama Beach and Malama Market and Food Pantry. I personally don't think it needs to be handled formally. I think an informal inquiry would be sufficient on our part, but I think the discussion here today shows that we do need to do a little bit more digging and clarify the facts. But I appreciate you trying to show what your motivations were. And sir, I appreciate you coming, too. Other Board members have any questions or comments? HEAUKULANI: I have a comment. I'm reading this testimony here from Sumada, Mits Sumada. Who is he? YAGONG: He's the director of the Department of Transportation. HEA UKULANI: Okay, thank you, sir. CHAIR: Jiro Sumada YAGONG: - -the deputy director. HEAUKULANI: I'm looking at this thing as a I'm an old traffic cop, okay? Traffic there's engineering, education, and enforcement. And I was on the enforcement side. But I think this is a traffic issue. The whole bloody thing here is a traffic issue, to help alleviate traffic, reduce the number of crash or potential crash so I don't know where this Malama Market has do to anything with this traffic safety for Puna. And if you make a motion to go informal, I will not vote on that motion. CHAIR: Okay, well again, the issue at hand is whether or not there was a conflict of interest by Mr. Yagong by voting on the HEAUKULANI: - -I hear you, Mr. Chair. I'm just telling you where how I see it. CHAIR: So did you make a motion, or like to make a motion? HEAUKULANI: My motion is how do we end this? CHAIR: Well, we gotta make a motion and decide whether we're going to move forward with the informal, formal, or are we going to dismiss it. HEA UKULANI: My motion is to dismiss. CHAIR: Dismiss it? Okay. 13 HEA UKULANI: You got that, Mary? HENRICKS: I'll second that motion. CHAIR: Okay, so we have a motion to dismiss it and we have a second. Any discussion? SECRETARY: Who seconded it? I didn't hear that. CHAIR: Arne. All right, any discussion? Again hold on, Arne. My discussion is that it just my feelings of digging further is just because I feel I lack the information here, so that's why. Do you have any discussion? HENRICKS: Okay, I hate to reiterate again, but I think the important thing here, and I don't want to discourage you in any way, but I think the important thing is we have to know whatMalama's position on this was before you can say that he advocated that position. And when you come to a point where I asked myself the same questions that I asked you. What did Malama want at that point, when you're saying that he's stalling I guess that's what you're saying he was delaying it. CADAOAS: Yes. HENRICKS: Did they want him to delay it? I mean, was it to their benefit for delaying it? CADAOAS: Well, all I show is that he has interest with Malama Market, Food Pantry. They're all affiliated. HENRICKS: But if he was advocating that interest, I could see. But the fact that if Malama had no interest in what was going on, how could he advocate something that they had no interest in? You know what I mean? CHAIR: Well, I think it's unfair HENRICKS: --If they didn't care, one way or another, whether there was a delay or not, how can he advocate something that they didn't care about? That's the only thing that bothers me. CHAIR: I think it's unrealistic to ask the petitioner to answer for somebody else, you know. He's here to answer for himself. Counsel? HENRICKS: Why? CHAIR: Because he's hereto answer for himself in the conflict of interest. And to put him on the spot and ask him what the motivations ofMalama Market are, it's kind of unrealistic. Counsel, you had anything? SCHOEN: I don't have anything to add, Mr. Chair. 14 CHAIR: Okay, so we have a motion and a second to dismiss this petition. All in favor, say aye. HEA UKULANI: Aye. HENRICKS: Aye. CHAIR: And I'll oppose. BALSIS: I'll abstain. CHAIR: Abstain? I'll oppose. SCHOEN: Okay, so the motion fails. CHAIR: Okay. SCHOEN: So you guys gotta decide what you want to do next, if anything. According to your rules let me just reiterate what your rules are. Whenever you have a petition before you, pursuant to Rule 4 you - -this Board- -may refuse to entertain a request for good cause, it can dismiss for the matter being speculative, frivolous, or you can vote to hold an informal hearing. If the motion to dismiss fails, you folks have to decide how you want to proceed. CHAIR: Okay. So we have two votes to dismiss, one opposed, and one abstained. BALSIS: If I recuse myself, that only leaves three. CHAIR: Right. BALSIS: I need to recuse myself. CHAIR: Okay. HEA UKULANI: Why? BALSIS: Why -- because I know Dominic and I've dealt with him when the Malama Market was opening in Ocean View. And I'm familiar with working with people at Food Pantry and Foodland. HEA UKULANI: Okay. BALSIS: That's why I didn't say anything. SCHOEN: So Chair Balsis I'm sorry, not Chair. Mr. Balsis, are you saying that you don't believe that you you need to disqualify yourself and you don't believe you can be fair and impartial in this matter? 15 BALSIS: That is correct. CHAIR: Okay. SCHOEN: Okay, so Mr. Chair, now you're down to three members. And you need three votes to make any action valid pursuant to the Charter. CHAIR: Right. Any new Board members coming in any time this year? HEAUKULANI: Do you want to delay this until we get a new member? SCHOEN: No. CHAIR: No? Okay. HEAUKULANI: Is there a statute of limitations on this kind of I'm a young chair here, so you've got to train me. CHAIR: Could we maybe discuss this quickly in executive session, what our procedural options are in this? SCHOEN: Well, you need to make a motion and have a two- thirds vote to go into executive session for that. HEA UKULANI: So moved. SCHOEN: And the motion sorry, you have to be specific about your motion. HEAUKULANI: I move that we move into executive session to discuss our options, procedures. SCHOEN: It's for the purpose of consulting with the Board's attorney on questions and issues pertaining to the Board's powers, duties, privileges, immunities, and liabilities. CHAIR: So moved? HEA UKULANI: So moved. CHAIR: Do we have a second? HENRICKS: Second. CHAIR: Okay, all in favor say aye. HEAUKULANI, HENRICKS, BALSIS, CHAIR (simultaneously): Aye. CHAIR: If you guys could give us a few minutes. Thank you. 16 10:40 a.m.: The Board left regular session. 10:55 a.m.: The Board returned to Regular Session. CHAIR: Mr. Yagong, did you provide a copy of that information to the secretary, by any chance? SCHOEN: -- That's okay, I have it. CHAIR: Okay, we got one. Okay, just to remind everybody where we're at. We had a motion to dismiss, two votes in favor of, one opposed, and one recusal. So we didn't have the three needed. If I could state for the record, my vote of opposition is simply motivated on the fact that I would like to gather a little bit more information on the Bill 283 and also allow for some time to review the map and the accompanying information that Mr. Yagong provided for us today. And that's the only reason why I voted against the dismissal. I will entertain a motion to continue this initial review till next month to allow for that time to review on my part. HEAKULANI: Second the motion. CHAIR: You've got to move it. HEA UKULANL• But you 're making the motion. CHAIR: Oh, okay. I move to continue the initial review again, just to clarify, not to move it into any formal or informal hearing, but just to continue the initial review to allow for me to review the information provided by Mr. Yagong and to review Bill 283. HEA UKULANI: Second. CHAIR: Any discussion? One question, if I may can you verbalize exactly what motivated you in the first place to file this petition? Obviously you felt there was some sort of conflict or potential conflict, but anything else? CADAOAS: I think what got me is when he proposed an amendment to hold the certificate of occupancy when they was willing to do the job, they were pushing it. It was like just adding pressure to it. That was not necessary. CHAIR: You're not employed by Long's or anything like that? CADAOAS: What's that? No, I'm not. YAGONG: Can I respond to that? CHAIR: Sure. 17 YAGONG: I really need to respond to that, because the only people in this whole County of Hawai `i that has the authority and opportunity to make conditions to any zoning amendment is the County Council. And when the County Council makes the decision, it's based on whether the condition is in the best interest and provide public safety for the community and for the area that that zoning affects. CHAIR: Right. YAGONG: No one else can do that, only the council. And the reason we put that in there was to make sure that we have what everyone said they were going to do —just have it in writing so that it would be done. And by the way, it was done. Even without the amendment, it was done. CHAIR: This part right here. YAGONG: Absolutely, that was done, and it's made peoples' lives so much safer there. So and that's why I voted for it at the very end. I did vote for the application at the end. But I just wanted to say that no one else would have that opportunity, and it's up to us as elected officials to make sure that we ask ourself, is the condition needed to make it safe for the people there? And that's exactly what we did, or exactly what I tried to do. And it happened, though, so I'm happy that it happened. CHAIR: And again, please understand, this continuance or this motion for a continuance is simply just for a little bit more analysis of what needs to be looked at. HENRICKS: Can I say one more thing? CHAIR: Yes. HENRICKS: Sir, he's going to continue this until next month so he can get more information, okay? For my benefit and I'm stuck on the first part of it, all right, that's my problem, mentally. If you can provide me any information CADAOAS: - -Did you read the whole minutes HENRICKS: -­I read all the minutes. If you can let me go here, okay. If you can provide me any further information to show that Malama had an interest in the outcome of this, either pro or against, I would be interested to see that. Because at this point, unless I can determine whether they had an interest in this, I can't even go any further than that, because how can you advocate a position for them when there is no position to advocate? And at this point I read everything, and I didn't see Malama involved in any way -- CHAIR: -- Okay -- HENRICKS: - -Other than being across the street, you understand? That's what I can't see. IN CHAIR: We have a motion on the floor and a second to continue this initial review till next month. Again, this is not to move it to any kind of hearing. Any further discussion? All in favor, say aye. HENRICKS, HEAUKULANI, and CHAIR (simultaneously): Aye. CHAIR: Opposed? And one recusal. All right, thank you for your time. YAGONG: Thank you. d. Counsel's report regarding matters and /or inquiries received by the Board, including (1) Gifts Disclosure Statement received from a member of the Workforce Investment Board. Ms. Schoen reported that a gifts disclosure statement was received from Wayne Higaki of the Workforce Investment Board, reporting no gifts. It was not necessary for the disclosure to be filed. The Chair asked whether it would be acceptable to write a letter of thanks to former Vice Chair Ann Lum on behalf of the Board, and Mr. Balsis and Mr. Heaukulani agreed. The Chair said he would prepare a letter. 5. UNFINISHED BUSINESS (NONE) There was no unfinished business. 11:04 a.m. to 11:10 a.m: The Board took a recess. Motion and vote: Mr. Balsis moved to enter into Executive Session for agenda item 6. Mr. Henricks seconded the motion, and all members voted. 11:10 a.m.: The Board left Regular Session. 11:22 a.m.: The Board re- entered Regular Session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Approval of the minutes of the December 8, 2010, Executive Session. Motion and vote: Mr. Heaukulani moved to approve the minutes, Mr. Balsis seconded the motion, and all members voted aye. 19 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. Heaukulani moved to approve all eight confidential financial disclosures. Mr. Balsis seconded the motion, and all members voted aye. 7. ANNOUNCEMENTS The Chair announced the next meeting for February 9, 2011, at 10:00 a.m., with the location to be determined. The Chair asked the secretary to look for another location, as the current one was dark and did not accommodate many members of the public. Ms. Schoen said she would need to draft letters to Ms. Ford and Mr. Lee, giving notice of the formal hearing and asking them to submit witness and exhibit lists. She would also be providing the Board members with a copy of the DVD for their review before the next meeting. 11:25 a.m.: The meeting adjourned. Respectfully submitted: Mary saw, !I=trbLrr 20