HomeMy WebLinkAbout2014-06-25 Board of Ethics Minutes
HAWAI‘I COUNTY BOARD OF ETHICS
MINUTES – REGULAR SESSION
Wednesday, June 25, 2014
10:00 a.m. to 12:38 p.m.
Hawai‘i County Building
25 Aupuni Street
County Council Chambers
Hilo, Hawai‘i 96720
Members and Staff Present:
Bernard Balsis, Chair
Ku Kahakalau, Vice Chair
Arne Henricks, Member
Glen Hisashima, Member
Douglass Adams, Member
Renee N.C. Schoen, Deputy Corporation Counsel
Renee K. Lawrence, Secretary
1. CALL TO ORDER
Mr. Balsis called the meeting to order at 10:02 a.m.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS
Dan Cole signed up to testify regarding Petition No. 2014-04.
Mr. Cole: Good morning Board.
Mr. Balsis: Good morning.
Mr. Cole: I’m here to speak on Petition 2014-04. This petition is in knowing and knowingly
act in criminal violation of the Hawai‘i Revised Statues 707-764 for extortion by a government
body by a person, i.e. a candidate running for elected office. Therefore, this is an extortion of a
political elected official. You have been warned under United States Code, subsection 18-4,
Misprision of felony, so be that. Petition 2014-04 reads Initial review of Petition alleging that a
candidate for the County Council is in violation of the Code of Ethics because she comes to
Pāhoa Senior Center to announce she is running for County Council seat and gave 20 tickets to
the site manager. Article 15 Code of Ethics, Section 2-81applicability states this article shall
apply to every officer or employee of the County. For the purpose of this article, any person
nominated for elected office or appointed but not confirmed as administrative head of any
agency or as a member of any board or commission shall be considered an officer. I put
emphasis on nominated. Black’s Law Dictionary states, an individual seeking nomination,
election or appointment is a candidate. Therefore, a political candidate, a female political
candidate separated by gender in violation of the Civil Rights laws was filed a petition against.
A candidate for election becomes a nominee after being formally nominated, so says the Black’s
Law. Okay, so we got that. Proposed Rules of Practice and Procedure of the Board of Ethics of
the County of Hawai‘i, your Rules of Ethics and your Procedures, the rules and regulations have
the effect of law. Rule 3, Declaratory Rulings, 3.2 Form and Content of Petitions, Section 3 a
designation of the specific statute, ordinance, rule or order of the question is required. The
petition filed lists no violation of the Code of Ethics, therefore, it is in violation your own rules
and procedures. It is against a candidate who is not an employee or official of the County of
Hawai‘i, and therefore, you do not have jurisdiction over it. This Board minus Mr. Adams there,
is in knowing and knowingly violation of this, for they state in Petition 2011-05, Mr. Balsis, on
Petition 2011-05, the complaint here specifically targeted an attorney. I understand that the
status of the ethics committee or the status and also court law does not have jurisdiction over a
former employee. Former employee, non-employee, okay. Ms. Schoen goes on to enforce this
fact and give state law. There are three pages here. If you go into all of the times I have sat
before this Board, in testimony, representation, you will find that I read into the record quite a
bit. This is for the very purpose that you will have no excuse to not know or should have know
the violations you are incorporated in. The violations that you are being accused of as filed with
the Hawai‘i County Clerk, the Chief of Police and the Federal Bureau of Investigations yesterday
at 2:37 identify that you have been charged or have been informed of a political violation to
intimidate and extort a political official, in violation of Hawai‘i Revised Statutes 707-764
Extortion. A person commits extortion if the person does any of the following, (i)…
Mr. Balsis: Mr. Cole…
Mr. Cole: …I request an extension to finish this out for five minutes as this important to the
very nature of this cause.
Mr. Balsis: We need to finish things up so I’ll give you one minute, you need to sum it up
right now.
Mr. Cole: Fine. The extortion, is take or withhold action as a public servant, or cause a
public servant to take or withhold such action. You are public servants, you are taking,
withholding action. Here’s the killer, section l, do any other act that would not in itself
substantially benefit the defendant that is calculated to harm substantially some person with
respect to the threatened person’s health, calling, career or reputation. The petition filed states or
impugns that a person, candidate, female, did in fact commit a violation of a threshold of law that
a petition would be filed for in order to impugn her nature, in order to extort her and have control
over an electoral process. Thank you very much.
Mr. Balsis: Thank you Mr. Cole. Having no other notifications of statements from the
public…
Ms. Naeole: Yes, kalamai. My name is Emily Naeole and I’m here because of what Dan Cole
is talking about.
Mr. Balsis: Yes, and when it’s time for the petition we will be discussing that with you.
Ms. Naeole: Alright, thank you.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF MAY 14, 2014
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Motion and Vote: Mr. Adams moved to approve the minutes. Ms. Kahakalau seconded
the motion. All members voted aye.
4. NEW BUSINESS
Petition No. 2014-04: Initial review of Petition alleging that a candidate for County
Council is in violation of the Code of Ethics because she “comes to Pāhoa Senior Center
to announce she is running for County Council seat” and “gave 20 (twenty) tickets to the
site manager for distribution”.
Mr. Balsis: I know that there is a question, and it was a question even prior to Mr. Cole’s
testimony, to decide whether or not the Board has jurisdiction over a candidate for public office
and I think this should be discussed here at the Board even before we continue to hear the
petition. Are there any comments about this from any of the Board Members? Legal counsel,
Renee, you have any comments?
Ms. Schoen: No, unless the Board has any specific questions. I can direct you to, just a
minute…Mr. Chair, I can direct you to…
Member of the Public (from the gallery): I can’t hear you back here.
Ms. Schoen: Can you all hear me? Apparently our system is not working.
Mr. Balsis: Do you want to take a break for a moment that way everybody can hear?
Ms. Schoen: Sure.
Mr. Balsis: She is going to double check on this. We’ll just pause for a moment or two. Can
everybody hear now? If people can move up a little closer, it would be a lot easier for everybody
to hear what’s going on because we’re having technical difficulties. We need to continue with
the meeting rather than delay for a long time, so the first two rows, if possible, there’s enough
seats. That’ll be great. Counsel you were saying something.
Ms. Schoen: Yes. Mr. Chair, I just wanted to direct the Board to the applicability section of
the Hawai‘i County Code which is 2-81. That provision does say “This article shall apply to
every officer or employee of the County. For purposes of this article, any person nominated for
elected office or appointed but not confirmed as administrative head of any agency or as a
member of any board or commission shall be considered an officer.” I think the Board should
look at the fact that the term “candidate” is not specifically defined within the definitions section.
The term “candidate” does not come under the exact definition of employee or officer. The only
place that the term “candidate” is mentioned is in the financial disclosure section. I interpret that
to mean that candidates are only subject to the Board’s jurisdiction in terms of whether or not
they file financial disclosures. There was a question as to the definition of what it means to be
nominated to office and trying to tie that together as meaning a candidate. In that situation, I
think when 2-81 speaks to “nominated for elected office” it’s talking about situations where the
County Council will appoint a successor to fill a vacant seat, so they’re nominated for an elected
office, but not yet confirmed.
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Mr. Balsis: So what you’re saying is that it’s not necessarily a nomination by a party, you’re
looking at a nomination by a government body.
Ms. Schoen: Correct. The section that I’m referring to is our County Charter and that’s 3-4, it
speaks to vacancies in office and prescribes how the County Council goes about nominating
somebody for elected office should there be a vacancy.
Mr. Balsis: Is there any discussions or questions on this?
Mr. Adams: Mr. Chair, just a quick question…
Mr. Balsis: Go ahead.
Mr. Adams: …for counsel, there’s nothing in HRS, Hawai‘i Revised Statutes that speaks to
this definition issue either, is that right?
Ms. Schoen: The HRS does define what a candidate is, but my position is that within your own
Ethics Code there is no definition for candidate as falling under an officer or an employee and
therefore, subject to the Board’s jurisdiction.
Mr. Adams: And so the phrase here “nominated for elected office” there’s nothing specifically
associated with that in the HRS as well, it’s only your understanding of how the practice is here
in the County?
Ms. Schoen: Correct.
Mr. Adams: Thank you.
Mr. Henricks: I’m just playing devil’s advocate here, what I would be concerned about if we
should rule according to your statement, that would make two classes of people running for
office, because it would have one class of a candidate who is not in office and one class who is
an incumbent. So that would make two different rules involving here. One would apply to the
person running, who is not in office and one applies to an incumbent who would come under the
County Code, would that be fair?
Ms. Schoen: Yes. I mean, are you asking me would that be a fair statement, or would that be a
fair result?
Mr. Henricks: A fair result in making two classes of candidates.
Ms. Schoen: No, of course not.
Mr. Henricks: So how can we get around that?
Ms. Schoen: The other thing is that the financial disclosure provision which identifies
candidates provides a penalty provision, whereas our Code would not provide a penalty
provision should there be a violation of the Code of Ethics by a candidate.
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Mr. Balsis: That would be a question on the Code, not necessarily on this specific situation?
Ms. Schoen: Correct.
Mr. Henricks: Alright. That question was me merely being the devil’s advocate, the only thing I
could clarify it with is it’s maybe something that should be taken up with the State Commission,
not us, if they want to make a fairness doctrine out of it. So therefore, I’ve answered my own
question.
Mr. Balsis: Are there any further comments about the question on whether or not we have
jurisdiction over this? Is there any motion as to, or is there any thought of proceeding with a
hearing, or should we…
Mr. Adams: I have a motion Mr. Chair.
Mr. Balsis: Go ahead.
Mr. Adams: I move that we dismiss this petition for lack of jurisdiction over the subject of the
petition.
Ms. Kahakalau: Second.
Mr. Balsis: A motion has been made and seconded to dismiss Petition 2014-04 as the Board
does not have jurisdiction in this particular specific situation. Is there any further discussion on
this? Hearing no further discussion, I call for a vote. All those in favor of the motion say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: All those opposed. Hearing no opposed, the motion is passed.
Ms. Naeole: Kalamai.
Mr. Balsis: Yes.
Ms. Naeole: I need to say something.
Mr. Balsis: Okay.
Ms. Naeole: You know you did this but, you know I need to tell you something. This thing
has affected me. Yeah, last night I couldn’t sleep. I been having anxiety. This morning I called
the Corporation Counsel office. I was in tears talking to the secretary lady. So you cannot wing
somebody’s life together and then just kinda call it quits. I really, you know, have issues. And so
you guys gotta hear me, at least I when drive over here from Pāhoa with hardly any gas in my car
so I can come speak out for my rights, yeah. I have a right as an American citizen. So you need
to at least hear what I have to say. I don’t want to come all the way over here so then you going
just call it quits. Bull liar. I no think so. I’m sorry, but I said I called couple people this
morning, I barely get gas, Aunty get your butt over there. Yeah, to cover your grounds, to make
sure that whatever they’re accusing you of is not right. So that’s why I cannot just go home and
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say, oh forget it, they when just cancel the whole thing so that’s why I need to speak yeah. This
has affected me. For this last two weeks since I got that letter, from Renee, it has affected me.
I’m trying to run a campaign and then I feel like somebody is trying to put me down and make
me look bad. That’s why I been trying to recover for the last three and a half years because some
of this kind of shit that I have to go through. I hate to speak like this but its reality. I been trying
to recover for three and a half years. I was stepping back out and this is the kind of stuff I have
to put up with, yeah. So I need you guys to know from my own voice to all of you here, yeah,
and I see somebody that I highly respect on your Board of Ethics. So for me to drive down here
with barely any gas in my car to come for stand up for my rights as an American citizen living in
Hawai‘i nei, so I need you guys and that’s why I need you hear what I have to say. This is not a
game. Playing games with people’s lives is not pono, yeah. Pono means righteous. So I do not
want to step into something, you know to me, my community is so important to me. September
make 58 years I live in my community, that’s when my mother drop me. So, for me to step back
into the realm and then I never ever, barely even two months before I’m campaigning and this is
the kind of stuff I gotta deal with.
Mr. Balsis: Excuse me, Emily. Before the, before we started we called for statements from
the public and we only had one. In this particular matter on which you’d like to speak, I do
understand. But the issue you have I don’t think is with the Board of Ethics, I think the issue you
have would be with the petitioner, because it’s the petitioner who has brought something before
us.
Ms. Naeole: Well, who’s the name. You never give me no name, everything was blocked out.
How can I deal with anybody if everything is all black? I cannot deal with nobody.
Mr. Balsis: We also have confidentiality rules that we have to abide by.
Ms. Naeole: ‘Ae, hiki no, hiki no. So the thing is if you had no authority to do what you guys
just try to do to me now, and then now you just dropped it and you going just drop in thin air.
No, that’s why you know, I have rights too.
Mr. Balsis: Actually…
Ms. Naeole: You guys think everybody else have rights, what about me?
Mr. Balsis: Actually we’ve dismissed the case so there’s no longer any case against you.
Ms. Naeole: Yeah, well the thing is that’s why I needed to speak, because like I said ‘a‘ole ke
kakalina that means no more gas. But I drove over here on a wing and a prayer because I had to
come over here stand up for my rights, Renee, yeah and that’s why I came here this morning.
And so I thank you for dropping it, but I needed to share my peace, yeah. I’ve had anxieties for
the last two weeks cause of this situation. And God bless to whoever did this petition, and you
know, it’s not her fault, whoever’s fault it is. But, thank you for giving me an opportunity to
share my mana’o. Thank you very much.
Petition No. 2014-05: Initial review of Petition alleging that County officers or
employees are in violation of Section 2-91.3(6) of the Code of Ethics by, inter alia,
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“creating, expanding, and propagating PONC” and “made several personal suggestion
each for PONC purchases . . . .”
Mr. Balsis: As we continue discussing this particular issue there is a question on whether or
not the Board has jurisdiction over these individuals and over the issue raised. PONC is for
those that did not know, I was unaware until recently, stands for the County’s Public Access
Open Space and Natural Resource Committee. I’m going to ask our counsel of any thoughts she
has on us continuing or not continuing with this case, and I’d like to have a little discussion here
amongst the Board.
Ms. Schoen: Mr. Chair, I think the Petitioner is here, I’m not sure if the Respondents are here
at all. I did not speak with, I’m sorry, I did speak with Ms. Hecht and she said she was unable to
attend as well as Ms. Byrne-Baber, she was also not able to attend. I believe you have it in your
packets, their responses.
Mr. Balsis: In that regard we will continue.
Ms. Schoen: Their responses are to the petition.
Mr. Balsis: Okay.
Ms. Schoen: There are allegations which the Board may want to ask the Petition as to whether
or not these allegations arose in 2006 or not. I don’t know. It seems like it, but since the
Petitioner is here you may want to inquire and if so, the Board does have a statute of limitations
of six years. So with that, I’ll leave it to the Board.
Mr. Balsis: We’ll continue?
Mr. Adams: Yes.
Mr. Balsis: The Petitioner Mark McNett.
Mr. McNett: Yes, that’s my name. No middle name, no confirmation name.
Mr. Balsis: Please come forward.
Mr. McNett: Alright.
Mr. Balsis: You have a petition here. Please you have the floor for a few minutes to discuss
your petition.
Mr. McNett: Okay. It’ll only take a few minutes. There’s plenty of evidence already presented
to you and plenty more yet to be presented but not necessarily today. I just would like to go on
the record on two things. First of all at, anyone that might be concerned, you know the County
will still be able to acquire any and all the lands it so desires. And I’m sorry I didn’t, I just
picked this out of the files this morning Ordinance No. 05-85, Bill 78, Draft 3, Public Access
Open Space and Natural Resource Preservation Fund. That’s all this PONC Commission is, was
just an expansion by a factor of quite a few of this original law. And I’m told by a former
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Councilman, a future Councilman that the signer of this law, the former Mayor, he would like to
have this whole park thing repealed. I believe that’s the purview of your kuleana, maybe not.
Now this item is four pages of State records that I submitted 19 to 20 hours ago and I had just got
it in that very hour that I’ve been trying to get for eight years ever since these ads that are part of
the Petition for the first Respondent Ms. Hecht. So, as far as I can tell and one gathers, the State,
Hawai‘i Revised Statutes and Administrative Rules are all of a sudden unproblematic, or some
20 hours or less ago or so. But still again, there’s a bright side for me, not for the Respondents
and for the County, I mean it’s a plus to the County that this information has finally been
revealed after 8 to 7 years. And it shows the amount of money that was spent or in kind
donations to get a bare 6% majority to create this thing and every time I’ve read the County’s
lobbyist laws, it’s like $275 in a six month period and this is a grand total of $30,392.91 in a six
month period. I’m pretty sure they’re not on the lobbyist log, the TPL Trust for Public Land did
have at least one, possibly two lobbyists registered and on the expense reports zero. Now when I
talk to Ms. Hecht on the phone I asked her about these ads and she said TPL paid for them. As I
understand that now, from these records and from talking to TPL several years ago, the
conservation campaign and also from checking their website, that’s a 501c4, which they are
allowed to do this. But yet, if it’s so legal why not report it to the County. So anyway you have
that information, I feel that’s really enough to schedule a formal hearing, that’s up to you to
make it formal or informal and as far as I’m concerned, this thing should go straight to the
Prosecutor’s. But I may need to work through these protocols and procedures. Now, this is just
something, I presented all this stuff to County Council over the years and now I’m sorry I just
pulled this out of the file this morning and I did not have time to make copies for you, but it’s
October 10, 2006 HTH article on a lobbyist by Jason Armstrong and according to the County
Clerk at the time, I believe it was Connie Kirio, Kiriu rather, a lobbyist that doesn’t register or
meet all the requirements shall be guilty of a misdemeanor, shall be guilty of a misdemeanor the
law states. Well, I did the math on that one figure, it was the lower figure, it was like 24,000 a
little bit more. I didn’t do it on the thirty something thousand. The lower figure came out to be
89 times the limit. So I just don’t see how they can get a free pass on that. Now, as to the
second Respondent Ms. Byrne-Baber, now this I didn’t give you because I didn’t notice this until
just the other night when I was reviewing this thing, this page 6 of 6 on the suggestions for the
properties that have already been purchased, right between Pohoiki Bay and the Kahuku Coastal
property, Ka‘ū, there Kaiulena South, North Kohala and then the TMK Nos. 76.65 acres. It says
in red (see list under Kaiulena North). So in other words instead of just duplicating the page or
pages of suggesters that were for Kaiulena North, it was the same exact suggesters for Pao‘o
purchase. So if you look at that and I will, I’ll even go through the extra expense to make a
colored copy so you can see this was the information I was given and if it’s available on the
internet that’s usually blue, you can click on it to a link or if it’s red, something similar I guess.
Any kid would know, I don’t. I guess that was to like save a page or two of paper. But to me
when you’re spending these millions and millions on each of three different properties, I think
the names of the people that suggested it and supposedly were able to persuade the Commission
to buy this for the County, that those names should be listed. But if it were three lists all
identical, many suggesters and they’re all entered on the same date if you notice so it looks like I
believe it was Ms. Byrne at the time before she was a Commissioner, gathered the suggestions
and you know maybe very legal and innocent, but you know, I’m not an organization man, I’m a
sole operator. But I have in television production become involved in groups that might have
dozens or scores of people. And to get 100% compliance is fortunately unheard of. Because I
would always get talent releases from every person appearing on the screen. But, I mean they’re
claiming they had these many, many suggesters and you can see a lot of these suggesters, I mean,
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okay, there’s a minority that were listed with DCCA, Department of Commerce and Consumer
Affairs Business Registration. There was a very minority. And I just started doing internet
searches and so forth and I immediately saw that that, yes, some of these dupes do exist even
though they’re not registered with the State. I haven’t found any in the County lobbyist logs and
I found typically on these groups in Hawai‘i a lot of them be 501(c)(3) so they can offer a tax
deduction, and some of them just lie about it and say they’re a 501(c)(3), they figure they’d
never get caught, I don’t know how. But anyway, to me there’s a preponderance of the evidence
that this is something that needs attention, it needs to be looked in to. As far as your synopsis,
just in closing on the agenda, you know I don’t have the multi page letter I wrote or a copy of the
petition with me but I never use the term “inter alia” and I’m dying to know exactly what that
means. I hope that’ll be explained when I get off this mic in a moment. So anyway, like I said, I
feel that there’s plenty to call for a formal hearing on this and under the contested case rules and
so. I probably forgot quite a few things but I’m pretty sure we’ll have a chance to revisit this at
least, I hope. I hope it won’t be one of these quick dismissals because this isn’t a matter of
someone throwing a ballpoint pen on the floor or, you know, some administration aide
supposedly misleading a member of the public. This is a thirty plus million program and it
averages to about five million dollars a year that the County does expend. Plus, the real, and just
in closing, the real bad part of this is the State money and the Federal money grants, which is
actually most of that thirty thousand I believe. If this turns out that those suggestions were
falsified and Ms. Hecht’s ongoing in several election cycles, she had these that you can
download off of her website and she uses the same website for campaigns for County Council
and to me that’s a consideration and that’s what the County lobbyist law says for other
consideration. Well, when she got nominated to this Commission she was waived through
Finance Committee from Brenda Ford her friend according to Brenda Ford, and former
employer, and under the County. And she’s continued and if that’s all the reporting she did was
to the State this one time that’s like what 8 years of unregistered lobbying and she just refuses to,
I mean Donald Ikeda asked her when she was at County Council meeting what about your
lobbying and she just smiles and says I’m not a lobbyist. Well hey, I can say I’m not a man, I’m
not a human being but you know, I am. So anyway, you’ve been very patient and I just kinda
been expecting a little, could you, you know.
Mr. Balsis: Actually before you leave, does anyone here have any questions for Mr. McNett?
Mr. Adams: Mr. McNett, if I might, I just want to clarify a couple of things that are in your
petition. There’s two individuals you’re speaking about, Ms. Hecht and Ms. Byrne-Baber,
correct? Is that right? And the second is the date, the timeline of the situation that you’re
referring to in the petition is the 2006 election, is that correct?
Mr. McNett: Well, that’s when it started, okay. Because without this thirty something
thousand dollars, I don’t believe they ever would’ve got to 50% of the vote. But you know, only
God knows that right, but as I said in my last minute of testimony sir, she has continued with
this, unreporting for all of these years and years and years and years. And she just refuses to.
And I think it’s clear that she has done it for considerations and considerable considerations and
you know, this thing has the potential to become like Arkansas Clinton Whitewater scandal if
say, other, more serious transgressions were committed. So, as far as the first respondent you
said, yeah, it’s for the whole 8 years. And maybe I didn’t quote every chapter, verse of the
County Code that’s been broken but I mean it’s hard to tell from that newspaper article but just
not registering is a misdemeanor and then all of these other things and if it turns out those
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suggestions are falsified, which I believe they are, it’s clear just from reading it, I don’t know if
that would be a felony, a misdemeanor, or a summary offense with only a citation. So, I hope I
answered your question Mr. Adams.
Mr. Adams: Thank you.
Mr. Balsis: Are there any other questions for Mr. McNett from anyone here? Thank you very
much. At this point in time I’ll ask if there’s any discussion here on the Board on this petition.
Mr. Adams: If I could Mr. Chairman. I think that we have two individuals, Ms. Hecht and Ms.
Byrne-Baber. Ms. Byrne-Baber, as I understand it is no longer a County official and therefore,
does not fall under the jurisdiction of this Board, and so if you’re looking for motions, I would
move that we would remove Ms. Byrne-Baber from consideration in this petition.
Mr. Henricks: I second the motion.
Mr. Balsis: There has been a move and it’s been seconded to remove Ms. Baber from this
petition because she’s not longer employed with the County as an official. Is there any
discussion on this?
Ms. Kahakalau: I just have a question if there is any kind of policy in place that, you know,
past violations, if there was a violation that they automatically are not considered when the
person is no longer an employee. I don’t know the Code of Ethics to that accustom.
Mr. Balsis: Counsel.
Ms. Kahakalau: Sorry.
Ms. Schoen: That’s correct. There is a state law which provides that if an officer or employee
is no longer employed then the Ethics Commission has no jurisdiction or authority to prosecute,
charge and proceed with the case.
Ms. Kahakalau: Thank you.
Mr. Balsis: Just out of curiosity. Does someone have another avenue through the legal
system?
Ms. Schoen: I’m not sure. Certainly you’d have to look at it on a case by case basis to see
whether or not there are other remedies.
Mr. Balsis: Okay.
Mr. McNett: Mr. Chair, if I just may quickly say that I’m aware of plenty of other avenues so
thank you for your concern.
Mr. Balsis: Well, there’s been a move and second to remove Ms. Baber, did I pronounce that
correctly from the petition. There’s been discussion, any further discussion? Hearing no further
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discussion, I’ll call for a vote for a motion to remove Ms. Baber from the petition. All those in
favor.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: All those opposed. Hearing no oppose, the motion is passed. The question I have
for discussion here is regarding Ms. Hecht. Does anybody have any questions here on how you
would like to proceed?
Mr. Adams: Mr. Chair.
Mr. Balsis: Yes.
Mr. Adams: There’s an element in our Article 15 Section 2-86(b), 2-86(b) refers to Alleged
Conduct of Someone Other than Inquirer. Under the informal advisory opinions and about three
lines down in there it refers to the petition shall be filed within six years of the alleged violation.
That was the purpose addressing that particular point was my purpose for asking Mr. McNett
about the situation, the violation that he was referring to in his petition and the date, the timeline
associated with that. And although Mr. McNett identified that this is in his view something
that’s an ongoing situation, the petition does not refer to that. The petition refers to a timeline
associated with the 2006 election which is 7 to 8 years…
Mr. Balsis: Yes.
Mr. Adams: …which would be outside the statute of limitations here, and having heard nor
seen that there was any indication cause you go down further, nothing herein shall bar
proceedings against a person who, by fraud of other device, prevents the discovery of a violation
of the code of ethics. I haven’t heard or seen anything that’s been presented to us that indicated
that that discovery of that violation or alleged violation has, that there was anything that
prevented that discovery. As a result, I think then we’re back to the statute of limitations on this
particular matter being six years and so it would appear to me that this petition is now waning in
terms of being presented within the statute of limitations timeline.
Mr. Balsis: Thank you. Are there any further comments about this? Do you have a motion?
Mr. Adams: I move that we dismiss the petition for not being filed timely.
Mr. Henricks: I second.
Mr. Balsis: There has been a motion and it’s been seconded to dismiss the petition because it
is outside of the, because it’s not filed timely within the six year period, our statute of limitations.
Is there any further discussion on this matter? Go ahead.
Ms. Kahakalau: I just wanted a point of clarification because I don’t understand inter alia
either. If we could please get a little bit of…
Ms. Schoen: I’m sorry for using it. What it means is “among other things”. So just for the
Board’s information, when we received petitions we try to articulate as best as possible what the
11
petition is alleging and the Code violations stated. There were many allegations and so I styled
the agenda as meaning there were other things alleged in the petition other than creating,
expanding and propagating PONC.
Mr. Balsis: Is there any further discussion or questions for clarification? Hearing no further
discussion, we’ll call for a vote. There is a motion on the floor to dismiss Petition No. 2014-05
because it was not filed in a timely manner within our statute of limitation. All those in favor of
this motion, say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: All those opposed. There are no opposed. The motion has been passed. We
would like to thank the petitioner for bringing this matter up.
Mr. McNett: You’re welcome.
Mr. Balsis: The third item on today’s agenda is Petition No. 2014-06. Initial review of
Petition alleging that a County officer or employee is in violation of Section 2-83(a)(3) due to the
physical deterioration and attitude at Kona Aquatic Center and how I was treated on May 17,
2014. The petitioner Gail, are you present? Gail Ranfranz, did I say that correctly? Gail you
have a few minutes to discuss your petition.
Ms. Ranfranz: Thank you and good morning to all of you.
Mr. Balsis: Is the other person present? Let me see here, Derek Lee.
Ms. Schoen: Mr. Chair, I don’t believe he’s here but he did provide a response which should be
in your packet.
Mr. Balsis: Yes, I do have that here. Okay. Please proceed.
Ms. Ranfranz: Okay. I am here basically because I feel I was unloaded on in a phone
conversation that I am just a volunteer at the pool. I do not know this man. Second of all, I’m
really here in regards to the disrepair and the condition of the Kona Acquatics pool. Under
Derek’s leadership there’s no maintenance. He never cleans any of the stainless pool, any of the
stainless throughout the pool, the lifeguard stands at the bottom needs scraped and rustproofed.
Starting blocks are cracked, plastic grading around the pool is moldy and all of this could be
cleaned by the lifeguards when there’s low attendance at the pool. The pool hours have been
changed from 6 in the morning to 6:15 which is a hardship for the public, especially my husband
and other parents that have kids that need to get to school. And the reason for him closing it
until 6:15 is all he has to do is chlorinate in the morning, check the chlorination of the pool, that
takes 5 minutes. If he could check the chlorination of the pool and open the gates as soon as he’s
finished with this, 5 minutes, it would be acceptable, but he insists on opening it at 6:15 because
most of the parents have to get their kids to school and they come to the pool in the morning to
swim before they start their day. The pool also closes midday on the weekends for lunch so the
lifeguards so can have a lunch. So that means in the middle of a Saturday when the pool is full
of kids everybody has to get out of the pool for an hour to an hour and a half while the lifeguards
have their lunch, and then they can get back in. The pool is closed when the kids need it the
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most. Lately we’ve been having a lot of, Derek says its scheduling problems where he closes the
pool early. His lack of ownership and pride in the workplace, lack of supporting employees with
a positive attitude, lack of knowledge of pool operations and maintenance. He has demonstrated
he cannot be courteous, fair or impartial to the public. He should be removed or replaced with
new leadership that is certified in pool operations, exhibits pride of workplace in this facility and
sets a positive attitude for his lifeguards and public.
Mr. Balsis: At this time are there any questions for Ms. Ranfranz?
Mr. Henricks: Before we go forward, I’d like to state to the Board, she asked for a closed
hearing.
Mr. Adams: That’s what this says.
Mr. Henricks: She’s asked for a closed hearing, you better go forward and ask her…
Mr. Balsis: Oh, I’m sorry. I apologize, you had asked for a closed hearing and I started this
with an opening hearing.
Ms. Ranfranz: Well we can have an open.
Mr. Balsis: Okay, fine. Thank you.
Mr. Henricks: First I’d like to comment to the Board before we proceed that, at this time I think
we should be careful and limit this hearing, or the inquiry of this hearing to the telephone
conversation alone and nothing else. Any agreement on that matter?
Mr. Balsis: I’m in agreement. I had read the petition myself and, in my opinion a lot of the
things that were just discussed were performance issues, rather than ethics issues. There were
issues during the telephone conversation which would be under the jurisdiction of the Code of
Ethics.
Ms. Ranfranz: Yes. I had assumed you read my letter so I didn’t go through all the ethics
violations but I have those if you’d like.
Mr. Balsis: Are there any questions or comments by the Board at this time?
Mr. Henricks: Then let’s agree that we’ll stick to that, we’ll limit our inquiry to the telephone
conversation alone. Is that correct?
Mr. Balsis: That is correct.
Mr. Henricks: Do you understand what we’ve just done?
Ms. Ranfranz: You’ve taken the pool maintenance out of it?
Mr. Henricks: Yes.
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Mr. Balsis: That is correct.
Mr. Henricks: Anything else? Because those are not questions for an Ethics Commission.
We’re not saying he didn’t do any of these things, we’re saying that we’re not looking into them
because they’re not in our purview. It’s probably his employer who should look into that or
whoever supervises, but definitely not us.
Ms. Ranfranz: Okay.
Mr. Henricks: But we can look into the area of whether he was disrespectful or unfair to you,
that we can look into and that alone. That’s what I’m saying, that’s why I’m trying to limit this.
Okay, let’s move forward.
Mr. Balsis: Do you have any comments specifically on fairness or rudeness?
Ms. Ranfranz: Well, he accused me of stealing money, that was the first thing. I mean, I walked
into the office, the lifeguard in the office told me to call him cause I was no longer allowed in the
office. I walked outside, I called him on my phone and the first thing out of his mouth was he
told me I stole money out of the office in December at a state meet when I was not even there. I
was appalled. He had no space for his lifeguards, if he let me in the office his lifeguards needed
a place for a break. He accused me of using the County’s trash bags and not our own trash bags.
He told me that I left the pool area trashed or the whole event left the pool area trashed, he told
me if I wanted to use the office I should get a permit, and he could not supply me a place to do
my ribbon labeling as he only had to supply one table to the public. He had reports from the
lifeguards that morning that kids were in the storage area, which they were not because I was
around the pool during setup and all the kids were with their teams warming up, and there was
probably around 300 kids at the pool on this morning and there were none in the storage area.
And then he accused me of stealing items from the storage and never returning them. I don’t go
in the storage. I am not on the team. I know that there are kids that do go in the storage, which
is the polo team, which they were going in to get whatever they need to play water polo and the
other team that practices at the pool, they go in and get their kickboards and everything so I do
know that there are kids in the storage, but not the morning of the meet, which he accused me of.
Mr. Balsis: Any questions?
Mr. Henricks: Yes. First of all you realize that we have nothing to do with his employment at all,
we cannot even, we don’t even recommend or not recommend whether he be employed or not.
You understand that?
Ms. Ranfranz: Okay.
Mr. Henricks: It’s way beyond our capacity.
Ms. Ranfranz: Okay.
Mr. Henricks: Because you’re asking us to see that he’s fired, we don’t have nothing to do with
that. You understand that?
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Ms. Ranfranz: Okay. What can you do?
Mr. Henricks: All we can do is recommend to his authority that if he violates the Code, that he
has violated the Code and they should punish him in the manner they choose to.
Ms. Ranfranz: Okay.
Mr. Henricks: It’s very limited, you understand?
Ms. Ranfranz: Yes, I understand that…
Mr. Henricks: Secondly, you understand also that this isn’t the only hearing we’re going to have
on this matter, that if we find that there’s enough evidence to show that there may be a violation,
we hold a full hearing the next time we come up, where he will be involved with whatever
evidence he wants to bring forth, you understand that.
Ms. Ranfranz: Okay.
Mr. Henricks: So if we feel that there’s enough to go forward, there will be a second hearing.
Ms. Ranfranz: Right.
Mr. Henricks: What I’d like to ask first of all…
Mr. Balsis: Oh, by the way, these are now working, they’re working now (referring to
microphones).
Mr. Henricks: Thank you. What I’d like to ask first of all, you went to the pool and asked to use
the office? How many different lifeguards did you ask at that time?
Ms. Ranfranz: One, there was only one located in the office.
Mr. Henricks: And he said that you could not use the office, is that correct?
Ms. Ranfranz: Yes. And the officials from the meet had already placed the ribbons in the office.
He had already accepted them.
Mr. Henricks: Alright. But you said he wasn’t going to allow you to use the office right?
Ms. Ranfranz: That is correct.
Mr. Henricks: How did you get the phone number from him?
Ms. Ranfranz: The lifeguard gave it to me, he told me…
Mr. Henricks: You asked him politely for it, or did you demand it.
15
Ms. Ranfranz: No I did not. I asked him where could I work in the office because we’ve been
doing this for 17 years, he had already accepted the ribbons and that’s when he told me he would
not let me work in the, that he was told he could not let me work in the office, his boss’s name
was Derek Lee and this is his phone number, if you have any problems, call him. So I walked
outside and I called him.
Mr. Henricks: So he volunteered that to you?
Ms. Ranfranz: Yes he did.
Mr. Henricks: Alright. When you called Mr. Lee, were you angry at the fact that you had been
turned down?
Ms. Ranfranz: No. I called him and identified who I was, why I was calling, and why I was not
allowed to work in the office that we have done 17 years prior, what was his reasoning behind
this.
Mr. Henricks: You’ve actually done it 17 years prior?
Ms. Ranfranz: I have not, but my, the group Kona Acquatics has. Yes. For 17 years.
Mr. Henricks: Okay, this is my last question, it bothered me quite a bit. You said that he
accused you of stealing…
Ms. Ranfranz: Yes.
Mr. Henricks: …and he accused you of something else too, of doing something else, taking his
trash bags. I think there are 3 things he accused you of doing, how could he do that if he didn’t
know who you were.
Ms. Ranfranz: Exactly, I’ve never met the man.
Mr. Henricks: That’s what I’m saying…
Ms. Ranfranz: I’ve never met the man.
Mr. Henricks: …if you’ve never met each other, how can he accuse you specifically. Did he say
someone did that or did he say you did that?
Ms. Ranfranz: No he specifically identified me.
Mr. Henricks: He specifically said you did that.
Ms. Ranfranz: And this conversation went on for 5 minutes where he was unloading on me and
accusing me.
Mr. Henricks: You notice my dilemma though, you see what I’m…
16
Ms. Ranfranz: I understand, and this has boiled down to a he said, she said. I understand that.
Mr. Henricks: No, my dilemma is that when I read both sides, I couldn’t understand how he
could accuse you specifically of doing something when he didn’t know you.
Ms. Ranfranz: Exactly.
Mr. Henricks: I have no further questions, thank you.
Mr. Balsis: Anymore questions? Go ahead.
Mr. Adams: Ma’am, when you said this was the first time that you’d done this but the
organization’s done it for 17 years, is this a once a year deal where they get together and do this
or how often during the year do these meets happen where you had these ribbon activities.
Ms. Ranfranz: When Kona Acquatics or the Dolphins, Kona Dolphins hosts a meet for all the
swim teams on the island then, that’s when we as the host team are responsible for doing all the
ribbons for the kids, whether it be Kona Acquatics or Kona Dolphins but that’s our pool that we
practice at. Usually we host a meet once a year, once a season, there’s long course season and
there’s short course season and both run for 6 months. So during the long course we’re there
once and during the short course we’re there once. But the meet that he referred that I stole
money from was the state championships where all of the whole state was there.
Mr. Adams: That’s the December 2013 time period.
Ms. Ranfranz: Yes, that was the state meet where everybody from all the other islands came to
Kona Aquatics for the state meet.
Mr. Adams: Thank you.
Mr. Balsis: Any further questions?
Mr. Hisashima: Can we have clarification from the Board? This is another case that I’ve
sat in again, we talked about investigations, the Director of that Department should be the first
person to do this. See if there’s a violation, if there’s a violation it becomes a grieveable item.
That person can also check for the ethics. If he did violate the ethics, then he refers that violation
to us. But to me, here we go again and this is the second time I’ve been pushing this, to me the
Department Head is responsible first, finds the truth, talks to the complainants, see everybody’s
side, makes a decision, renders a decision, let’s say, you’re guilty, now that’s a grieveable item
with the employee. Now, he says there is a possible ethics violation, that comes to us for a
formal or informal opinion. And that’s how I look at this. The Department Head is not doing
anything on this. They’re all coming to us, the Ethics Board. To me, the Department Head
should be number one on this because Mr. Lee is his employee. Coming from a manager’s
standpoint, I want to know what my employees are doing to upset the community.
Mr. Balsis: May I ask, have you gone to…
17
Ms. Ranfranz: Yes, I have, and no response from Mr. Honma. Nothing. And that is why I’m
here.
Mr. Adams: Let me just give my perspective on this. I think from a procedural way that that’s
probably an efficient method. But, in my understanding of the article, members of the public
have every right to come to us and we take a look at their petition and determine whether or not
there’s anything there and we can move forward. And it’s not the most efficient way but it’s just
part of what the public has the authority, has the right to do.
Mr. Balsis: Go ahead.
Mr. Hisashima: I agree, however, I disagree. And the disagreement part is this, the County
hires people to run the pool. As management they are responsible for their employees, their
interaction with the community. Number one, we don’t have that authority. That’s why again
from the last hearing we had and I’m always going to push this, let the Department head do it. If
can’t do it, find somebody else. We’re like the last resort because if she’s not accepting what the
Department Head says and she still yet pushes the violation of ethics, then yes, by all means
come to us. But give the Department Head that opportunity to address this issue because how
many more issues, we don’t know about. And as part of management that is good management,
that’s why they’re getting paid to do what they do.
Mr. Balsis: In this particular case, quoting Ms. Ranfranz, she did…
Mr. Hisashima: I understand.
Mr. Balsis: …go to the supervisors and so she is using us as a place of last resort.
Mr. Hisashima: Well I didn’t know.
Mr. Balsis: I didn’t know until you just asked. With that in mind I’m going to ask the
members of the Board do we want to go further into a informal or formal hearing or dismiss the
matter?
Mr. Adams: It seems to be my day for making motions. So I move that we proceed with an
informal advisory hearing…
Mr. Henricks: I second that.
Mr. Adams: …on this petition.
Mr. Balsis: It’s been moved and seconded to go into an informal advisory hearing, that’ll be
at the next Board meeting, I believe. Is there any further discussion on this?
Mr. Hishashima: Can we have our participants here? Director, Mr. Lee.
Mr. Balsis: I don’t see why not. Go ahead counsel.
Ms. Schoen: If the Board wants to order it, then you can.
18
Mr. Balsis: I think it would be wise to have the…Derek would need to be here and I would
believe his, at least his immediate supervisor, if not the Department Head should be here.
Mr. Henricks: I disagree totally because I don’t think there’s any reason for a Director to be
here. If you’re going into work performance like he wants to do, it’s true, but I already discussed
the fact that we’re going to limit it to the telephone conversation. Under the Ethics Code that’s
what we’re limited to, the telephone conversation.
Mr. Balsis: Okay.
Mr. Henricks: If it were performance, the Director would have to be here.
Mr. Adams: And not to speak necessarily for Commissioner, but I think also what he’s talking
about is not a performance issue…
Mr. Balsis: The ethics issue.
Mr. Adams: …it’s the ability to deal with the ethics issues and whether or not the Department
Head has done that. Is that what you’re talking about? That’s why you would have them here.
Mr. Hisashima: For one thing, as a manager he should be, well maybe not the Director, but
his immediate supervisor. I don’t know if Kona has a supervisor over him?
Ms. Ranfranz: No, he is the head lifeguard.
Mr. Hisashima: He is the head lifeguard?
Ms. Ranfranz: He is.
Mr. Hisashima: Who does he fall under?
Ms. Ranfranz: Honma.
Mr. Hisashima: Honma. Well, I’ll let the wishes be of the Board.
Ms. Schoen: Okay, so just for clarity and for Renee’s help, you do have a motion and a second,
I think you’re discussing whether or not you want to go into informal and these other issues we
can talk about that, should the motion pass.
Mr. Balsis: Okay, so right now let’s vote, is there any further discussion on the motion itself,
and the motion itself is to go in to informal advisory hearing, been seconded, is there discussion
on that specific item? Hearing no further discussion, all those in favor of going in to informal
hearing at the next meeting say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
19
Mr. Balsis: We’ll be going into informal hearing. Now just to discuss the details, I’d like to
mention that I do agree with Mr. Henricks and that is, it is specific of the Code of Ethics, we’re
not discussing performance. I wish his supervisor had gotten involved, that would have been the
appropriate way to go, but he has not gotten involved so we’re going to be looking specifically at
the ethics issue. We will not be looking at the condition of the pool or any of those items. It’s
going to be specific to your discussion that you had with him.
Mr. Henricks: And also, if we should start ordering supervisors before the Board every time an
employee does, we’d be setting a bad precedent because it’s not in the County Ethics Code.
Mr. Balsis: So noted. Any further discussion on that? So we’ll be moving forward, thank
you very much. We’ll be moving on with the agenda. I’d like to take a short break before we go
into unfinished business for 5 minutes or so.
Mr. Ranfranz: Question.
Mr. Balsis: Yes.
Mr. Ranfranz: Could this informal meeting be held in Kona, because Derek is over there, and I
don’t know where his supervisor is. Could that be held in Kona?
Ms. Schoen: It’s something we can talk about and we can let them know.
Mr. Balsis: We will discuss that and let you know.
Mr. Ranfranz: Okay.
Mr. Balsis: Thank you for the suggestion. So we’re going to take a break for 5 or 10 minutes
and we’ll be right back.
The Board was in recess from 11:14 a.m. to 11:20 a.m.
* * * * * *
Mr. Balsis: We’re going to move on to unfinished business. Petition No. 2014-01, review
draft informal advisory opinion regarding the Petition by Michael Drutar on whether the
Department of Finance may find a violation of the Code of Ethics and sanction on the basis
thereof. That particular informal advisory opinion has been circulated. I know I’ve reviewed it,
it looks okay with me. Is there any other discussion?
Ms. Schoen: Mr. Chair, I believe this morning the Board was provided with a letter from Ms.
Noda requesting that Findings of Fact number 2 be amended. I’m not sure if everybody got a
chance to look at that.
Mr. Balsis: I did not. That’s okay. Oh, there is it. There was one small change that was
noted by Ms. Noda are there any problems with having that change done by anybody here? In
that case, the Chair will move that the draft informal advisory opinion be accepted with the
20
modification of changing Finding of Fact number 2, there is one section where it said 2 weeks
and changing that to 10 work days. Is there a second to that motion?
Mr. Hisashima: Second.
Mr. Balsis: Is there any further discussion on this motion? Hearing no further discussion,
we’ll call for a vote. All those in favor say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: All those opposed. Hearing no opposition, the motion is passed that Petition No.
2014-01 the draft informal advisory opinion is approved with the one small modification. Next
item on the agenda is Petition No. 2014-03, informal hearing of petition by Duane Kanuha,
Planning Director, requesting an informal opinion from the Board as to whether legal
representation of a person before the Planning Commission by a former County employee, in a
proceeding before the Windward Planning Commission, would violate Section 2-91.2 of the
Hawai‘i County Code. Is Duane here?
Ms. Schoen: Mr. Chair he is not. I did speak with Mr. Kanuha this morning. He apologized to
the Board that he was unable to be here. He did express that the issue before the Planning
Commission was whether or not Ms. Kawauchi was allowed to represent a party before the
Planning Commission because there was a question of her last date of employment as a County
Clerk and also as a Prosecutor. We did receive email from Ms. Kawauchi stating that she would
provide the Board a written response but we have not received anything from Ms. Kawauchi.
Mr. Balsis: At this point in time I’m going to ask members of the Board if they have any
opinions on continuing this or letting it go away.
Mr. Adams: It’s my opinion we should continue it. I think this is a matter that is in our
wheelhouse but I’m not prepared to make a decision without at least seeing or hearing from
somebody.
Mr. Balsis: Is that the consensus?
Mr. Henricks: I guess the only other opinion is that it’s been here three times now and nobody’s
done anything and I don’t, I think they should make the next move to put it on, and put it on
formally, next time instead of by letter.
Ms. Schoen: Whatever the pleasure of the Board is. I believe Mr. Kanuha was here the last
two times, it’s just this morning he was unable to be here and then I think what we were looking
for is a response from the Respondent because she had represented at the Planning Commission
that she filed something with this Board but she did not, so it’s really a matter of the Planning
Commission not feeling comfortable with moving forward. That’s all the information I have Mr.
Chair.
Mr. Balsis: Does anyone want to make a motion or should we have more discussion? How
about a motion?
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Mr. Henricks: Has anyone contacted Ms. Kawauchi?
Ms. Schoen: We did. We sent her a letter and she emailed us twice.
Mr. Henricks: And what did she respond?
Ms. Schoen: She said that she was going to provide a written response to the Board.
Mr. Balsis: And we have not received that response?
Ms. Schoen: Nothing. Nothing right Renee?
Ms. Lawrence: No.
Ms. Schoen: Nothing.
Ms. Adams: The last time, the last contact was when?
Ms. Schoen: I can give you the exact date, but I think it was May 23.
Mr. Adams: Okay.
Ms. Schoen: And we asked, she said she was going to be providing a lengthy response so
Renee Lawrence told her if you’re going to do that please provide it to us one week, we would
appreciate it if you’d provide it one week before the Board’s set hearing so that they have time to
review it and we haven’t received anything.
Mr. Balsis: The Chair will move for the purpose of discussion, we will move to continue this
one more time requiring a response from Ms. Kawauchi and we want both of them present for an
informal hearing. Is there a second to that motion so we can have discussion?
Ms. Kahakalau: Second.
Mr. Balsis: The motion has been made and seconded to continue the informal hearing to the
next meeting. What discussion do we have? There is no discussion. Go ahead.
Ms. Kahakalau: What are our options as far as requiring both parties to be present?
Ms. Schoen: Your rules do allow you to request the presence and/or subpoena people. In the
past though, when the Board asks, I simply call or write and say the Board is requesting you
appear, and usually people comply just by a request from the counsel to the Board.
Mr. Balsis: I do have one question. What is the 2 year rule, I believe it’s a 2 year rule on
being an employee and then coming back and representing people or something along those
lines?
Mr. Hisashima: 12 months.
Mr. Balsis: How much? 12 months?
22
Mr. Hisashima: 12 months.
Ms. Schoen: The applicable rule would be 2-91.2(b), and there’s actually a…
Mr. Henricks: We have to realize also, it’s not a total ban, it’s a limited ban.
Mr. Balsis: Yeah, I was wondering what the limitations were.
Ms. Schoen: It’s actually 12 months after termination and the Board has to find that if they
prohibit the representation, that the employee, it was over something that the employee had
directly been concerned, had under active consideration, or has obtained information which by
law is not available to the general public. So there is a analysis or inquiry, not only the 12
months prohibition, but there’s an analysis to go through.
Mr. Balsis: Okay. And that’s actually something that has not been directly related to us
whether or not it is directly related to her past employment.
Ms. Schoen: Nothing has been relayed to us and I think that’s what the Planning Director’s
inquiry is. He doesn’t know either so he’s just asking the Board for help.
Mr. Balsis: Well, we have a motion on the floor, we’ve had some discussion, is there any
further discussion? In that case, I’m going to call for a vote and there is a motion to having an
informal hearing at the next meeting, all those in favor of that say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: All those opposed. Hearing none opposed, Petition No. 2014-03 will be
postponed, deferred to the next meeting. Moving on with the agenda, Petition No. 2013-10,
informal hearing of petition by Chris and Annette Pickens, is Chris and Annette Pickens
available, please come forward, alleging that County employee Robert Northrop, Robert if you
could come up in the front, is in violation of Section 2-83 of the Code of Ethics because he “has
not treated us in a courteous, fair and impartial manner” and “used a County vehicle for other
than a public activity or purpose. This young lady is volunteering to bring a chair for you.
Member of the Public: I’m the Sergeant at Arms.
Mr. Balsis: Very well. We’re running an informal hearing so I’m going to ask the support of
counsel and the Board to make sure that I do this correctly. I’m going to give the floor first to
Mr. and Ms. Pickens. Did I say that correctly?
Ms. Pickens: Yes.
Mr. Balsis: Please, I know that we spoke on the phone briefly with Mr. Pickens but we need
to resolve this issue and so you have the floor.
Ms. Pickens: Thank you Mr. Chairman, Ms. Vice Chairman and the entire Committee for
allowing us to present our case today. I just want to let you know first of all, we have, I’ve been
23
hearing your frustration when you were talking about the other case about trying to work with
the immediate supervisor or Department Head of the Department and when this particular
incident happened I did contact the supervisor, Department Head, Kiran Emler, who is his
immediate supervisor, Ben Ishii, who oversees the Engineering Department here in Hilo and
Wally Lau, so, all with no response. I just want to let you know I did try to go through all the
avenues so we wouldn’t have to be here today. But with no response, this was my last resort and
I know I heard you Mr. Chairman, in the last call, request that his direct supervisor be here today,
and I don’t see him here. I don’t know what happened, so I’d like to know why he’s not here.
Mr. Balsis: I think that we’ll be fine. We’re going to be looking specifically at the ethics
issue, not a performance issue…
Ms. Pickens: Yes.
Mr. Balsis: …and I think in light of the discussion that we had earlier up here at the Board
level, I think it’ll be just fine.
Ms. Pickens: Well, he’s not here.
Mr. Balsis: No, but…
Mr. Henricks: He doesn’t have to be.
Ms. Balsis: Its okay that he’s not here, but we have the…
Ms. Pickens: No, I was just hearing some frustration on why the managers aren’t handling this
before getting to this level.
Mr. Balsis: But then that becomes a performance issue and we’re going to leave that aside
and we’re going to deal with it specifically as an ethics issue.
Ms. Pickens: Okay. So going back to the incident that occurred in December of 2012. Mr.
Northrop has already confirmed the statements he made that are in direct violation of the Board
of Ethics and I’m just curious, I’d like to ask Mr. Northrop a question, if that’s okay?
Ms. Schoen: No, it’s you guys that conduct the hearing.
Mr. Balsis: We’ll be conducting the hearing so if you have questions, you know, or concerns,
voice them and then we’re going to give this young man an opportunity to speak.
Ms. Pickens: Okay. We just don’t know what we did to him that caused him to make these
comments about our personal business to the neighbor. What did we do to him and what did he
get out of making these comments against us. And this is not the first time he has made
comments about us. He made the comment this time, in this particular incident about us to the
neighbor but back in May of 2011, I have no business knowing anybody’s neighbor’s business,
but he approached me, Mr. Northrop approached me and told me the neighbor’s violations.
Where I didn’t need to know that and I had never asked what the neighbor’s violations are. He
continued to go on to tell me that the neighbors were in violation of this and this and this. This
24
was in May of 2011 that he did his investigation on our property and the neighboring property,
and again, I didn’t ask what violations the neighbors were involved in. But yet, 10 months later
he goes to the neighbor and tells him I have filed a complaint, with my name on it. You
mentioned earlier on the other case about confidentiality laws, what happened to that in this case.
There was none. He went directly to the neighbor, gave them my name and had a list of
violations. I’ve never been into neighbors’ properties. That’s not my business. That’s not
something I would ever do. I have no business knowing what other neighbors’ business is. So,
again it’s going back to him talking to other neighbors about neighbors’ business. That’s not
what we’re here for. I mean, that’s not part of his job from what I understand. You know, he’s
to address things that are specific to what his job is. When he came in to do our initial
investigation to our property May 26 of 2011, I simply inquired to him, why were we be given
this violation. Simple question on the facts. His response to me, and forgive me, his words, not
mine when I asked why Kiran Emler was giving us this violation, his words, not mine, and I’m
embarrassed to say this, he said “he just needs to get laid”. It still embarrasses me to say this. I
had nothing to do with what the present issue was, and I don’t understand why he makes
comments like this. Why does he talk like this, so it just continues.
Mr. Pickens: And to refresh the memory of the first meeting that we had on the phone, just to
relate what was said then, Mr. Northrop, I spotted him driving up our private access road to the
neighbors up above us and when I seen the car I immediately ran to my back part of my house to
listen to see what was going on because I know he went to the neighbors up there and I heard
him very clearly up there, and he told the neighbors that the Pickens down there, that the County
has got a lien against their property and they’re going to take their property from them. That the
Pickens, they have no aloha, and that you, talking to the Thompsons above us, you guys should
get together with the other neighbors and form a coalition to go against these people. This is
what he said. And for, to say something like that in a County vehicle, I was just, you’re on duty,
you’re getting paid to come up here to, and I still don’t understand why he doesn’t like us.
What’s his reasoning?
Ms. Pickens: He also told me, at another time, that he has gotten in trouble in the past for things
he has said.
Mr. Balsis: Any questions for Mr. and Mrs. Pickens?
Mr. Henricks: Okay, one question I have is in the readings that I did, I noticed that there was a
complaint against your neighbors, several complaints. And the complaints said that you made
the complaint, but the complaint name on it was Mark, no, what was it, Frank.
Ms. Pickens: Yes.
Mr. Henricks: Okay, so how did that come about?
Ms. Pickens: Exactly, very good question. So Frank is Frank DeMarco, who works in the
County Public Works Department here in Hilo. And I questioned Frank DeMarco on why only
we were being picked on. Why Mr. Northrop came out in May 26, 2011, was well aware of
other neighbors’ violations, because he told me of them, and why weren’t the other neighbor’s
being addressed. I didn’t feel it was fair that we were only the ones being picked on. And he
said well, do you want to file a complaint, and I said I just want to know why the County has not
25
done a thorough investigation. Why they’re only picking on us and Frank filled this out without
my knowledge, that’s why it says by Frank and he typed my name in here. I was not aware he
was doing this because this was not my intention to file a complaint against the neighbors at all.
I’m not even aware of these violations.
Mr. Henricks: But at no time did you authorize Mr. DeMarco to file a complaint on your behalf.
Ms. Pickens: No. Not this type of complaint. My complaint was why the County investigation
was not investigating the neighboring properties and why they were only picking on us so that
was my complaint.
Mr. Henricks: And that discussion when you’re asking DeMarco these questions, did you
enumerate what complaints you were concerned about?
Ms. Pickens: I said that Mr. Northrop had made me aware of some neighbor’s violations and
that’s all I knew. I knew, because he had told me, these neighbors.
Mr. Henricks: But you didn’t enumerate any violations at that time to Mr. DeMarco?
Ms. Pickens: Again, I don’t go into the neighbor’s property.
Mr. Henricks: The reason I ask that is because if you saw the complaint, then the violations are
enumerated on the complaint. So he must have gotten that information somewhere.
Ms. Pickens: From Bob Northrop. From Mr. Northrop. Mr. Northrop made me aware of the
violations.
Mr. Balsis: So, just to clarify, you did not relay any specific violations to anyone, or you did
relay them?
Ms. Pickens: When I spoke to Mr. DeMarco I told him from what I could recall of the
violations Mr. Northrop had told me.
Mr. Henricks: So you did?
Ms. Pickens: But I have never witnessed any violations myself.
Mr. Henricks: But you did enumerate some to him so he had something to go on?
Ms. Pickens: I told him he could talk to Mr. Northrop, that’s where he could get clarification on
what the violations were. But I was not personally filing a complaint, and no way wanted to file
a complaint against the neighbors.
Mr. Balsis: Anymore questions? Anybody need clarifications? Moving on, Mr. Northrop
there are, there are some questions as to what was said in the process that came about. The first
thing I’m going to ask if you can comment on some of the things that you had said such as a
certain person needing to do other things, and then I’d also like to ask about the complaint if you
were involved in giving details so that the complaints that have the Pickens name on it, did you
26
assist in giving all that information. So if you could make some comments on these things
please.
Mr. Northrop: Yes, I’d be glad to. Thank you Chairman. Regarding the comments that I relayed
to Annette, I was doing something that is referred to as good cop bad cop. My immediate
supervisor Ki Emler had asked me into his office that morning, he had already prepared a Notice
of Violation that he wanted me to witness being submitted to the Pickens regarding a grading
violation. That initial violation that my boss was pursuing was an elevation change that had
happened on their property that would require Chapter 10, needs to be filled and that would be to
have an engineer grading plan submitted to the County. He was alerted to possible problems at
their parcel because of a submittal for a pool permit. So, while we were there at the property, we
went into the backyard where this pool would be and it was shown to be at basically what we call
zero lot line. Well because of the original topo in this area and the fact that their, that property
line was adjacent to a 60 foot wide piece of property that included, that included, excuse me
Arnie, that included a FEMA zone, the Hōlualoa stream, I’m going to get to it, you folks get to
hear this. Okay, so because of that when we went into the backyard we found a more serious
violation over Chapter 10 and also even including our Chapter 27 Flood Management
Ordinances. We could see a tremendous overfill on their property and incumbering a flood zone,
a FEMA, federal controlled zone.
Mr. Balsis: Okay.
Mr. Northrop: So, I was ordered then, after we submitted the Notice of Violation to the Pickens,
I was ordered to go back and down on the actual County property and that edge of that stream
parcel, I was taking pictures of that overburden all the material that were beyond their property
line. And again, violation of a couple, three different ordinances. At that time I actually ran into
Annette, I think she had come down there because she saw me in that stream and, you know, we
were cordial. I actually helped her over the rocks. I explained that it was pretty dangerous fill
that I was climbing on and taking pictures. I had been involved in an investigation a while back
on tress that were growing down in that stream parcel that was something that was still in
question and that was something I made her aware of, of a neighbor. If it’s under investigation I
can appreciate that it was again, a good cop bad cop thing. Well, you know there’s other things
going on here in this stream, but nothing to the degree that you folks have as far as a violation of
ordinance. After again, Annette’s petition with Frank DeMarco regarding other violations and I
have noted, I kinda made a joke of one thing, and these guys right below you here, they got a
couple of pot plants sitting there on the edge of the stream parcel and I was called on that later,
you know, it’s not my jurisdiction, it’s none of my business. The other thing was a correction
that had been made to a rock wall by a prior owner, excuse me, of a property that was down
below the Pickens. These were all things that did get resolved through investigations. I didn’t
create that investigation document. I didn’t let any neighbors aware of who the petition was.
I’ve always been carefully schooled, hey if it’s anonymous, it’s anonymous. There’s been
activity in this neighborhood that the people that I’ve had to touch base with in regards to these
investigations haven’t said anything kind about the Pickens. There has been threats by the
Pickens with their neighbors that...
Mr. Balsis: Can I ask a couple questions?
Mr. Northrop: …yeah, sure.
27
Mr. Balsis: First of all, did you say that, as it says here, Kiran just needs to get laid?
Mr. Northrop: I’m sorry.
Mr. Balsis: There’s a statement here that it was inquired as to why the Pickens were given the
violation and you stated, oh, Kiran just needs to get laid.
Mr. Northrop: I did not.
Mr. Balsis: Okay. And was there any discussion about, from you with other neighbors as was
overheard about, oh, maybe you all should get together and do something about the Pickens,
because you had just mentioned that others in the area were perhaps not happy with the Pickens.
Mr. Northrop: I was aware of a Notice of Violation that had a series of ordinances that had been
violated.
Mr. Balsis: Okay, but the question is, were you involved in that specific discussion that I had
mentioned?
Mr. Northrop: No sir, not in that manner.
Mr. Balsis: In what manner?
Mr. Northrop: I will elaborate sir. I was aware of a Notice of Violation again with a series of
ordinances that had been violated on that parcel and that was given to the Pickens by Warren
Lee, our Director of DPW and it was he that was going to be fining the Pickens at a rate of $500
rd
per day after the 3 of December 2012. I had two purposes that morning when I drove up the
private road and one was to see if they had started removing the material that they didn’t, it
wasn’t, we weren’t requiring that they got a grading permit. For the volume of material it would
normally be a requirement if you were to move that much material around to get a grading
permit, but we wanted that stream cleared so at that point I was going by to see if they had
started that work. As I turned around in the cul-de-sac there was a dog in the way and I came to
a stop. Mrs. Thompson had indicated roll your window down, and whatever, and I said well,
move the dog, and she said, well hey, we just put on a cup of coffee had you had, you want to
come in for a cup of coffee, and I said well, I haven’t had a break yet so I parked my car and
went in. When I was in their house, I was asked very pertinent questions regarding, they were
aware of the overburden that had happened on the Pickens parcel. They had concerns that had
been brought up to my Department’s attention regarding blocking of flood drainage way and
they asked me pointed questions about that. When is the County going to take effect? I said
well, we’re doing the best we can. We’ve been trying to work with the Pickens and at this point
because it is public knowledge that they had been issued a Notice of Violation. It’s in our record
and our records can be easily attained. Then it was a matter of understanding ordinance. They
said, well, you know, if they, evidentially these people aren’t willing to move that material out of
the way and stop the blockage of the floodway then what can be done about this? And I said
well, as it says in the ordinance, then the County would be obligated to come in and/or get a
contractor to come in, at that point at the County’s expense to get that flood channel cleared.
28
Mr. Balsis: Okay.
Mr. Northrop: Now, I’m not done sir. When, then the discussion went to well, are the taxpayers
going to pay for that? And I said no, the County would have to bill them and then the, well how
about if they don’t want to pay? I said well, then the County would have to lien the property for
payment, and again that’s all in our ordinances, that’s all law, that’s how the County gets money
back for people that won’t pay attention to violations. Plain and simple. Now, they then had,
because evidentially there had been some friction in that community that I was made aware of. I
was told at one time when the Pickens were invited to a brunch that Chris had, about one of the
first things out of his mouth, and more than one person had testified to this, or told me about it,
well, you’ve just met the biggest a-hole in the neighborhood. That can, you know, that can upset
a person. I can’t believe that, you know that’s a shame that somebody would say that about
themselves. In the meantime then, these Thompsons, they were very concerned about the
Pickens coming after them as far as a community trust broken. So I said, well, you’re not the
only one in the community if you feel that you’re going to be singled out you need to talk to your
neighbors. It’s as simple as that.
Mr. Balsis: Are there any questions or comments from the Board here?
Mr. Adams: Mr. Northrop, quick question. You indicated that these violations, I assume that
when we talk about the violations, you’re talking about the Notice of Violation and DPW Form
No. 39? When you talk about those that those are easily obtained? What does that mean, that
you can go, anyone can go down to, as a matter of fact, why don’t you walk me through how
easily these things are obtained by say, if I wanted to acquire something how do I go get them?
Mr. Northrop: You could get it through the website, the County website, and obtain those
ordinances and review the wording.
Mr. Adams: Can I see these individual violations?
Mr. Northrop: I have Chapter 10, Chapter 22, and Chapter 27 of the County…
Mr. Adams: I’m not looking for ordinances Mr. Northrop. You indicate, what you said in your
testimony just now was these violations are easily attained by any member of the public. I’m
trying to find out…
Mr. Northrop: You’re talking about the Notice of Violation that was issued to the Pickens that
was…
Mr. Adams: I’m talking about any Notice of Violation.
Mr. Northrop: Yes, it’s public knowledge once it’s signed by the Director of Public Works.
Mr. Adams: And where is that? Where could I go get that. If I wanted to go get a violation
that’s been signed off by the Director where would I go to get that?
Mr. Northrop: I believe in the website, the County website.
29
Mr. Adams: Thank you.
Mr. Balsis: Are there any other questions or comments?
Mr. Hisashima: Mr. Northrop, can you explain to me what good cop bad cop is?
Mr. Northrop: Yes, I would be glad to. Here comes my boss with the Notice of Violation. He’s
the Engineer. I’m merely the Construction Inspector so in a manner of, maybe it’s even a
psychological energy, I would’ve much rather he had addressed me and then I approach the
Pickens. I’ve had excellent history of presenting violations and having compliance. Ki doesn’t
necessarily have social skills that work that way and ….
Mr. Hisashima: Tell me what is your definition of good cop bad cop. How do you use that
in context?
Mr. Northrop: Well let’s say 2 policemen confront you. You have a policeman that’s more of a
strict policeman, we’re both trying to get to the same place, these 2 policemen and one would
appeal to more a personal nature and that’s the reason I said anything about the neighbors to
Annette, ah, there’s little stuff here and there and I felt comfortable doing that with Annette. I
thought everything was on a good energy at that point.
Mr. Hisashima: Okay. Are you a public servant?
Mr. Northrop: Yes sir I am.
Mr. Hisashima: What is your duty as a public servant?
Mr. Northrop: My duty is to protect the community.
Mr. Hisashima: And? That’s it?
Mr. Northrop: Treat everyone fairly.
Mr. Hisashima: Okay. As a public servant, because I’ve been one for 28 years, whatever
we can do to assist the public is our responsibility, not to come out and cite right away.
Mr. Northrop: I know. I appreciate that.
Mr. Hisashima: Communication is the biggest thing.
Mr. Northrop: I appreciate that sir and recent education in Notice of Violations.
Mr. Hisashima: Let me finish. Let me finish. I know the good cop bad cop scenario. We
did it before. The biggest part I see is if you’re not trained in it, it can go way awry. You pick
up and send out wrong information and everything. To me, a public servant, as I look at it, to
serve the public. Do you have a cease and desist order for them to stop what they were doing?
Mr. Northrop: That’s correct.
30
Mr. Hisashima: Do you have one? Was one issued?
Mr. Northrop: Yes. That first day that we went to their property.
Mr. Hisashima: And who was it issued to?
Mr. Northrop: It was issued to the Pickens by my engineer.
Mr. Hisashima: And what was the next result after that? Did they continue or did they
stop?
Mr. Northrop: Oh no, it continued because they hadn’t appreciated the violation.
Mr. Hisashima: Yeah, but the cease and desist is not a violation. It’s just you will stop
what you’re doing period.
Mr. Northrop: It was a Notice of Violation.
Mr. Hisashima: So not cease and desist.
Mr. Northrop: It was a Notice of Violation to cease and desist and to correct the violation.
Mr. Hisashima: Okay. Thank you.
Mr. Balsis: Any other questions or comments? Go ahead. Mr. Henricks.
Mr. Henricks: Mr. Northrop we had a lengthy conversation the last time correct.
Mr. Northrop: Mmhmm.
Mr. Henricks: I’d like to continue that conversation if I may.
Mr. Northrop: You may.
Mr. Henricks: When you went in the neighborhood you know there were bad feelings among the
neighbors in that neighborhood didn’t you?
Mr. Northrop: I did sir.
Mr. Henricks: And you knew that the object of that bad feelings were the Pickens, correct?
Mr. Northrop: I did sir.
Mr. Henricks: Alright. Those things were in your mind at the time you went into that
neighborhood, correct?
Mr. Northrop: They could not be.
31
Mr. Henricks: But they were in your mind, you knew that, you had knowledge?
Mr. Northrop: Yes, sir I did.
Mr. Henricks: Alright and with that knowledge you went up into the neighborhood and actually
went by invitation into the neighbors house that they were having a bad time with and had coffee
with them right?
Mr. Northrop: That’s correct sir.
Mr. Henricks: And while you were having coffee with them you discussed your neighbors’
business with them didn’t you?
Mr. Northrop: Because of questions presented to me.
Mr. Henricks: No, I just asked you, you did discuss that?
Mr. Northrop: I’m just telling you how it happened, Arnie. Thank you.
Mr. Adams: Careful.
Mr. Henricks: Don’t call me Arnie, call me Mr. Henricks.
Mr. Northrop: Mr. Henricks.
Mr. Henricks: Yes, thank you.
Mr. Northrop: Excuse me Mr. Adams.
Mr. Henricks: Alright, knowing that there were bad feelings involving the neighborhood you
went in to one of those neighbors’ homes and discussed their business.
Mr. Northrop: I was invited.
Mr. Henricks: But you went in. You could’ve denied, you could’ve said I’m sorry I choose not
go in. You could’ve said no thank you, couldn’t you.
Mr. Northrop: Mr. Henricks we learn lessons every day.
Mr. Henricks: I’m asking you a questions, I’m not asking what you learned. You could’ve said I
should go into your home.
Mr. Northrop: Correct. I had know the Thompsons way before I had met the Pickens and they
were very compliant when they did their property there…
Mr. Henricks: Do you realize…
32
Mr. Northrop: We have an obligation to the Federal Government to keep these floodways clear
sir.
Mr. Henricks: You do realize by going in to the neighbor’s home and discussing all of their
business to their neighbors that you are violating their right to privacy.
Mr. Northrop: I did not because I considered it public record sir.
Mr. Henricks: Yeah but even if it’s a public record the neighbors would have to go out and get
that information on their own. Why were you there giving them that information?
Mr. Northrop: They also had a questionable, two 4 foot by 4 foot by 4 foot composting bins that
were on the edge of the streambed and there was no evidence of one more property pin to show
whether it was on their property or on the edge of the County.
Mr. Henricks: My last question to you Mr. Northrop, do you normally tell the people when you
go and check a violation on their property, do you normally tell those people who filed the
complaint against them?
Mr. Northrop: No sir.
Mr. Henricks: But you did tell the Thompsons didn’t you?
Mr. Northrop: They already knew from talking to their other neighbor. I have no idea sir.
Mr. Henricks: But you told them that didn’t you.
Mr. Northrop: No I did not.
Mr. Henricks: You told some other neighbors you did. That these people filed a complaint
against them.
Mr. Northrop: They had asked me pointed questions.
Mr. Henricks: But you told them that they did, didn’t you?
Mr. Northrop: What do you expect out of this Mr. Henricks?
Mr. Henricks: I’m asking a question. I asked, if you told their neighbors…
Mr. Balsis: We’re just asking for the truth.
Mr. Henricks: …that they filed a complaint against them, didn’t you, didn’t you?
Mr. Northrop: I refuse to answer.
Mr. Henricks: Alright, that’s good enough for me.
33
Mr. Pickens: Can I say something?
Mr. Balsis: Yes.
Mr. Pickens: Thank you. What happened was we hired some pool contractors to build a pool in
our backyard and Juan was the pool contractor and his partner was Hank Shrute who also owned
a pool company and Hank Shrute after talking to him for a while and speaking to other
subcontractors about him we found out that he’s bad news to be on the jobsite so I had a
conversation him and talked to him around 12 noon and he was completely intoxicated and he
told me over the telephone, because I was questioning what kind of plumbing were you going to
put in the pool, I wanted particular pumps, and you know, quiet ones and what have you. And he
said Chris, I’m going to put the cheapest stuff I can find here. So I, and I just looked at the
phone going, I haven’t even paid you any money yet. I go you’re fired, you’re off the jobsite,
you’re done. So Juan, his partner calls me up the following day telling me hey, Shrute called
him up and says the Pickens are never gonna get a pool permit because he went down to his
buddies at the County, his drinking buddy, and informed them of violations, so called violations
and that I’ll never get a pool permit. The following day Kiran Emler showed up at our property
without doing an initial investigation of the property and handed us a Notice of Violation for a
grading permit. Didn’t even look at our property yet. So…
Ms. Pickens: I think you’re well aware that Mr. Northrop refused to answer that last question. I
think that should give you sufficient evidence that he’s aware that he violated our right to privacy
when he mentioned that he has an excellent history following through with violations and
communicating with people, yet, he found violations May 26, of 2011 but yet he didn’t file those
until 10 months later, 10 months later it took him to file those violations that he had made me
aware of 10 months earlier and when he says, oh it was the little stuff, growing marijuana in
County property, I think we all know that’s a Federal violation. I don’t consider that little stuff.
He had also told me of a neighbor that built rock wall stairs into County property. That’s not a
little tree so I think that that’s all I need to say.
Mr. Northrop: To rebut that please.
Mr. Balsis: Go ahead and then we’re going to have our own discussion.
Mr. Northrop: Thank you. We’ve been instructed not to pursue violations until there’s a
complaint against that party. That’s how I’ve been instructed by my superiors.
Mr. Balsis: Thank you.
Mr. Pickens: May I say one final statement?
Mr. Balsis: Yes.
Mr. Pickens: We are currently in talks with the FBI and we found out the FBI actually has a
whole department for public corruption. So this, I understand that as far as the point about Hank
Shrute getting fired and him going to meet with his drinking buddy and getting this violation put
against us, that’s all going to go down as for them to deal with.
34
Ms. Pickens: And I understand that your position here is just to look at the ethics violation,
we’re not requesting…
Mr. Balsis: Correct.
Ms. Pickens: …that he be removed from his job or anything like that. We’re here specifically
for this ethics violation.
Mr. Balsis: Correct.
Ms. Pickens: He’s already admitted that he wasn’t aware that he violated our rights to privacy,
which he has. He clearly has, and he’s done it in the past, he’s going to do it again. And
unfortunately as long as he’s in a position with Public Works, this will continue to happen.
There’s a lot of good folks out there that work for Public Works that it’s unfortunate that one
person can give a bad example to the Department.
Mr. Balsis: Thank you very much. With those comments are there any questions from the
Board for either the Pickens or Mr. Northrop? Go ahead.
Mr. Adams: Yeah, if I might for the, for Mr. and Mrs. Pickens. In your petition you identify
the sections of the Code as 2-83 Fair Treatment 3 and 5, actually, there are 3 sections a, b and c
and unfortunately there’s two 3s and I’m assuming if I might that you are actually talking 2-83
bravo, b 3 and 5, which talks about using County time, equipment or other facilities for private
business or campaign purposes, and 5 is using County property or personnel for other than a
public activity or purpose. Is that what your purpose is at a part of this?
Ms. Pickens: Yes.
Mr. Adams: The part of b, I just want to make sure that we’re clear as to what we’re doing…
Mr. Balsis: Okay.
Mr. Adams: …so when I look at b, it says no officer or employee shall use or attempt to use
the officer’s or employee’s official position to secure or grant unwarranted privileges,
exemptions, advantages, contracts or treatment for oneself or others, included but not limited to
the following and then 3 and 5, using County time and using County property. I’m having a little
bit of difficulty here because it doesn’t appear to me that, well let me ask the question this way,
if I take a look at the wording using the officer’s or employee’s position to secure or grant
unwarranted privileges, you’re not necessarily, exemptions, etcetera, you’re not necessarily
saying that that’s for Mr. Northrop’s advantages, are you saying that this is for the neighbors
advantages. I’m trying to sort through what you’re talking about here.
Ms. Pickens: Well, we know that he was on company time, using a company vehicle when this
occurrence happened. And that was my question when I first started, what did he get out of this,
because this was clearly a violation of our privacy and us not being treated fairly so I didn’t
know what he was getting out of this or how he benefitted from his position in making these
comments against us.
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Mr. Adams: Thank you.
Mr. Balsis: Are there any other questions at this time? I’m going to ask that you just stay
there just in case we do have some questions that we can ask. Is there any discussion at this time
at the Board? Would you like, please.
Mr. Adams: Sure. It’s, as I take a look based on the continuation of my question there, as I
take a look at this section…
Mr. Balsis: Yes.
Mr. Adams: …first of all I should say that any decision, as my understanding, any decision
that we make can be based on any section of the article that we decide it needs to be based on if
that’s the case. But of course the petition comes forward and it needs to be based on a particular
section or sections. I’m not aware, necessarily as I take a look at the sections that have been
identified for this particular petition that he, that 2-83(b) (3) and (5) necessarily fit here. If I was
going to say, and so that’s my first point. The second point though is if I take a look at
2-83(a)(3) where it says all persons shall be treated in a fair, courteous and impartial manner,
based on the testimony and the evidence we’ve had placed before us, I would consider that the
section that there may be decision we would make on it.
Mr. Balsis: Actually I agree with you and that was, well they talked about sections 3 and 5,
but they do just talk about fair treatment. So I do agree with you. Are there any other comments
or questions at this time?
Mr. Henricks: I’d like to comment.
Mr. Balsis: Go ahead Mr. Henricks.
Mr. Henricks: The reason I put my question in that area because that’s the area that I was
stressing in the first place, and that’s, I think, the area that we’re concerned about today. What I
was trying to show is that any of these things acting alone may not be a violation of the Code of
Ethics, but taken together and you draw a big picture here you have a County official going into
a residential area to make an inspection. He knows that the neighborhood is unfriendly to each
other. He knows that these people don’t like each other. What does he do, he does the worst
thing possible, he goes into one of their homes and has a coffee break with one of the opposing
parties. And while in the home he discusses the other party’s violations and infractions. And to
make it even further worse, and exacerbate the situation, and as it was said, he tells the other
party that these people have filed a complaint against them. Which he says he normally does not
do. He telling me himself, I don’t usually tell the other party who the complainant is. In this
case, he did. Why? I have no idea, but all I know is it’s making a bad situation worse. And he
was the cause of it and in doing so, he violated this particular section of the Code.
Mr. Balsis: Thank you for those comments. Are there any further comments? I’m going to
ask do we go with a motion or how do we move forward with this at this point in time counsel.
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Ms. Schoen: Whatever you want to do. Your option is to make a motion on for a decision
because this is an informal hearing, the other option is to move to a formal hearing, it’s up to
you. So those actually are your options or dismiss, you have three options.
Mr. Adams: If I might, for counsel…
Mr. Balsis: Yes.
Mr. Adams: …if we given this is an informal advisory hearing, so obviously we can move to
dismiss, we can move to move the proceeding to a formal hearing or if we move to an opinion
it’s an advisory opinion on the conduct that we would find in violation of the Code, is that
correct?
Ms. Schoen: Correct.
Mr. Balsis: And one other question. If we find that there is a violation and we have the
opinion at this point in time how is that notified to the supervisor of the employee?
Ms. Schoen: Anytime there is any action against any officer or employee resulting in some sort
of finding of a violation your opinion is forwarded to the appointing authority, whoever that may
be. If it’s a Council Member in the past you have forwarded your opinion to the Council Chair,
regardless of whether it was a formal opinion after formal hearing or whether it was after an
informal hearing.
Mr. Balsis: With that in mind, I think we’re at a situation where we’re going to make a
decision on whether to issue an informal opinion or move to a formal hearing. Am I correct in
looking at the, most of the people, I mean that’s my opinion, my thoughts.
Mr. Adams: Mr. Chair, I’ll make the motion.
Mr. Balsis: Go ahead.
Mr. Adams: Unless, Vice Chair…
Ms. Kahakalau: Go ahead. That’s fine.
Mr. Adams: …I move that the Board find a violation of Section 2-83(a)(3) by Mr. Bob
Northrop in the situation has been provided, presented to us in Petition No. 2013-10.
Mr. Henricks: I second the motion.
Mr. Balsis: There is a motion and it’s been seconded to issue an opinion that Mr. Northrop
has violated Section 2-83(3)…
Mr. Adams: (a)(3).
Ms. Schoen: (a)(3).
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Mr. Balsis: …(a)(3) by virtue of all the discussion that has happened earlier today. Is there
any further discussion on this motion? All those in favor of this motion say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
Mr. Balsis: The decision is unanimous.
Ms. Schoen: All those opposed.
Mr. Balsis: All those opposed.
Ms. Schoen: Thank you. I’m just trying to help Renee.
Mr. Balsis: The reason I didn’t ask that was because I heard everybody say aye. The motion
is passed.
Ms. Schoen: So Mr. Chair, as usual I will be preparing an opinion for the Board’s review for
next time.
Mr. Balsis: Correct.
Ms. Schoen: And then I will provide it to the Board prior to the meeting.
Mr. Balsis: And I’d like to thank the Pickens and Mr. Northrop for being here today.
Mr. Northrop: You’re welcome.
Ms. Pickens: Thank you.
Mr. Balsis: The next point on the agenda is that the Chair moves that we go into executive
session with the objective to review executive session minutes from May 14, to review 5
confidential Financial Disclosure Forms and as needed we would consult with legal counsel. Is
there a second to that motion?
Mr. Hisashima: Second.
Mr. Balsis: Any discussion? All those in favor.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Hisashima, Mr. Adams (simultaneously): Aye.
The Board left regular session at 12:19 p.m.
* * * * * *
The Board returned to regular session at 12:28 p.m.
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6. VOTING ON EXECUTIVE SESSION MATTERS
a. Review of the executive session minutes of May 14, 2014.
Motion and vote: Mr. Balsis moved to approve the executive session minutes of May 14,
2014. Mr. Hisashima seconded the motion, and all members voted aye.
b. Review of Confidential Financial Disclosure Forms filed pursuant to Section
2-91.1(d), Hawai‘i County Code, by County board and commission members and
designated County employees, where personal matters were reviewed.
Mr. Balsis noted that 5 Confidential Financial Disclosures were reviewed, two
disclosures, numbers 1 and 5 were incomplete.
Motion and vote: Mr. Balsis moved to approve the 3 remaining Confidential Financial
Disclosures. Mr. Hisashima seconded the motion, and all members voted aye.
7. ANNOUNCEMENTS
Mr. Balsis announced the Board’s next meeting on July 17, 2014 at 10:00 a.m. at a
location to be announced at a later date.
8. ADJOURNMENT
Mr. Balsis adjourned the meeting at 12:38 p.m.
Respectfully submitted:
Renee K. Lawrence, Secretary
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