HomeMy WebLinkAbout2014-09-10 Board of Ethics Minutes
HAWAI‘I COUNTY BOARD OF ETHICS
MINUTES – REGULAR SESSION
Wednesday, September 10, 2014
10:00 a.m. to 10:47 a.m.
Hawai‘i County Building
25 Aupuni Street
Room 1501
Hilo, Hawai‘i 96720
Members and Staff Present:
Bernard Balsis, Chair
Ku Kahakalau, Vice Chair
Douglass Adams, Member
Arnie Henricks, Member
Renee N.C. Schoen, Deputy Corporation Counsel
Renee K. Lawrence, Secretary
1. CALL TO ORDER
Mr. Balsis called the meeting to order at 10:00 a.m.
2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS
Cynthia MacDonald signed up to testify on agenda item 4a, Petition No. 2014-09.
Ms. MacDonald: My name is Cynthia MacDonald and I’m a resident of Hawaiian
Acres subdivision. They were planning to have a market, a
farmers market. Unfortunately, the County has never followed up
with any of the permitting processes so the building is not
permitted. Our fire station is torn apart, there are a lot of issues
that needed to be settled prior to them doing a variance to have the
market. So Ms. Tita had filed a complaint. We attended the
Windward Planning Commission hearings. These people were just
really out of line. Not only did they take testimony prior to even
giving her standing, because she did have an attorney, that’s Jamie
Yamaguchi \[sic\]. So the first several hearings were just about
whether or not Mrs. Yamaguchi \[sic\] could have any kind of
standing. It wasn’t anything about Mrs. Tita or the issue. Once it
got down to the issue they had already made a decision is what I
feel, but they took testimony before they gave her standing. So we
were both a little confused about what is going on here. Mr.
Henkel was exceptionally out of line. He was very rude during his
hearing, and he was saying that she had taken up enough time with
the community, and that they need to push this permit through.
But there are all these other things that need to be fixed before this
variance goes through. So I don’t know where the County was
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coming from and don’t know where that Commission was coming
from. But I was there, that’s my read and I’ll turn my paper into
you okay.
Mr. Balsis: Thank you very much.
There were no further statements from the public.
3. APPROVAL OF THE REGULAR SESSION MINUTES OF AUGUST 13, 2014
Motion and Vote: Mr. Adams moved to approve the minutes. Ms. Kahakalau seconded
the motion. Mr. Balsis, Ms. Kahakalau and Mr. Adams voted aye. Mr. Henricks
abstained as he was not present at the August 13, 2014 meeting.
4. NEW BUSINESS
a. Petition No. 2014-09: Initial review of Petition alleging that County officers or
employee are in violation of Section 2-83(a)(3) because, inter alia, Respondent
“questioned the actions and behavior of” Petitioner’s attorney and Respondent’s
“lack of decorum and disregard for public decency has embarrassed and
humiliated me in front of the public eye.”
Mr. Balsis: I believe the petitioner is Susan Tita. Please come forward. We
have the petition in front of us, and so at this point in time we
give you the floor.
Ms. Tita: I had been attending the meetings with the Windward Planning
Commission, and I had some issues where I felt that perhaps little
rough around the edges with the Windward Planning Commission,
but on that one particular meeting that I attended, Mr. Henkel
became what I considered, unprofessional and improper in his
handling of me as a citizen and an interested party in the
intervention of Hawaiian Acres Farmers Market. He spoke to me
as if I were, bluntly put, a piece of dirt. I didn’t think it was
proper. It was out of line when he began to call Ms. Jamae
Kawauchi a liar. She was not in attendance at that particular
meeting. She was also having to come before this commission on
an ethics violation that was not valid. He repeatedly, in front of
the public, referred to her as a liar, that she been, no one on that
commission seemed to stop him. It was, they allowed that, was
humiliating. So as a tax payer and a person who is first time ever
attending these meetings to be treated like that, it’s inappropriate.
He then said to me you have caused enough discomfort and harm
to the community of Hawaiian Acres, and it is time to push this
issue forward. It hadn’t even gone for, if I had standing. Ms.
Kawauchi was not in attendance, who was my attorney, and he was
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a little bit belligerent about it, and I just think that is not how a
person on a Commission that is hearing people’s testimony should
treat someone who’s there to make testimony or to make a point.
He’s supposed to be a professional. He already had formed an
opinion, he made that very clear. So I felt that he had serious bias,
and this was not the first time this happened at a hearing, but I’m
going to tell you, for me, it was the last time. So the last hearing
we attended which I was there with my attorney, he once again, we
asked him to recuse himself until this Commission, this Ethics
Commission could hear the complaint against him. He said no I’m
not going to recuse myself. Not only did he not recuse himself, he
made two motions against me and voted on behalf of those
motions against me. So it was as if he really dug his heels in, and
then told me as the hearing came to an end, I don’t want to hear
any more from you, we’ve heard enough. Yet he was very liberal
at listening to everyone else’s testimony. So I think that if you
have an individual on a commission, they must remain fair and
impartial, and what he did was not fair and impartial, it was bias, it
was rude, and I was humiliated when he was referring to Ms.
Kawauchi as a liar. I mean it just, it was totally improper.
Mr. Balsis: Okay, at this point in time the Board, or the Members of the Board
will have perhaps some questions and comments so please be
there. Are there any comments from other member of the Board
at this time, or you need a moment to take a look at things? I do
have one question while people are taking a look. You mentioned
that there were other people who spoke on the same issue and just
out of curiosity, were there people who were speaking pro and
con to the, I don’t need the details, I’m just looking to see if there
was a variety of people speaking.
Ms. Tita There were several people that spoke on behalf. They were not
property owners, they did not own a property inside Hawaiian
Acres.
Mr. Balsis: Okay, but they were, that were people who spoke against it as well
as yourself, or were you the only one?
Ms. Tita: I was the only one that spoke against it. That last hearing went on,
I think we left it was seven or eight o’clock at night. We were last
on the agenda.
Mr. Balsis: Okay. I just, I was just wondering about that in looking at the
balance.
Ms. Tita: People are afraid. To be honest, people are afraid to come forward
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because I’ve had a lot of issues. My properties been vandalized.
The locks were cut on my gate to release my livestock. They cut
my fences. They threw dead animals in my yard. They defaced the
County, our water tank at the Community Center. Vulgarity you
cannot imagine. So people are afraid to come forward.
Ms. MacDonald: May I speak for just a second? I did, although I did not personally
testify, I did submit a letter.
Mr. Balsis: Okay.
Mr. Adams: Just to clarify. The items, the activities that you just spoke about,
you’re not bring that in as issues against Mr. Henkel? Those
things that occurred.
Ms. Tita: The damages to myself. No, no I’m just going to tell how
contentious and how afraid people are to come forward.
Mr. Adams: Okay.
Ms. Balsis: The reason that I had asked the question about people, the people
who were speaking, was to get an idea if you were singled out or
something like that.
Ms. Tita: I see.
Ms. Schoen: Mr. Chair, just for the record, the respondent did correspond
with our office, and said that he was unable to attend today’s
hearing because he is on Planning Commission business, and he
did submit a response which you all should have in your
packet. Margaret did you want to say anything to the Board?
Margaret Masunaga is the attorney for Planning Commission or
I’m sorry, or Planning Department? Planning Commission.
Ms. Masunaga: Planning Commission.
Ms. Schoen: So also for the record, and the Petitioner’s information, what the
Board does today is it is doing an initial review of the petition, and
deciding whether or not, what it wants to do with the petition,
whether it will go forward or not. So that’s what they are doing.
Mr. Balsis: You mentioned that Mr. Henkel had stated that Ms. Kawauchi was
a liar.
Ms. Tita: That’s correct.
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Mr. Balsis: First of all, I apologize this is the first time I’ve been able to see
the minutes of the meeting. It says here, so Ms. Kawauchi was
sworn in to tell the truth and is obvious she wasn’t. Is that
something that should be brought before the Board? It’s obvious
she wasn’t. Is that what you’re referring to? Or did he come out
and actually say.
Ms. Tita: He stated openly, she’s a liar, she’s lied to us, she’s lied to this
Council. She was not at that hearing because she was barred from
attending until she got a clearance from the Ethics Commission,
and he continued on to berate her and the women was not there. It
was totally inappropriate. He doesn’t know what she’s doing
with this Commission. He didn’t know what document she
submitted. Yes sir.
Mr. Henricks: Were you aware of the series of correspondence between this
Board and the Commission? Are you aware that there is a series
of correspondence from the February until July between this Board
and the Commission? Did you know that they were corresponding
with each other?
Ms. Tita: Not…
Mr. Henricks: Not at all?
Ms. Tita: Not completely aware.
Mr. Henricks: Would you like copies of that correspondence? Because we have
them and it pertains to Ms. Kawauchi and what she was doing.
Ms. Tita: It would probably be helpful, but sir, I would like to point out it
doesn’t excuse Mr. Henkel’s behavior at that meeting.
Mr. Henricks: I’m just saying, I’m not arguing with you. I’m just asking you do
you want a copy.
Ms. Tita: I would like copies of that.
Mr. Henricks: If you get a copy, do you want a continuance of this hearing to
allow you to look at those copies? Because it may have relevance
upon this hearing.
Ms. Tita: I would like to see the copies and then respond to them, because
I’m not familiar with everything.
Mr. Henricks: You understand what I’m trying to get at? She should know what
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we know, we’re privy to information she does not have. We
know what the fights been about for the last five months because
we’re getting correspondence and we’re responding to those
correspondence. Our secretary responded to every one of those
correspondence. You don’t know about anything about what’s
going on here?
Ms. Tita: I’m not familiar with all that.
Mr. Henricks: You don’t know why Mr. Henkel said what he said. You have no
reason to have believe why he said it right? Would it help you out
if you read this correspondence?
Ms. Tita: It might help me out.
Mr. Henricks: Okay.
Ms. Tita: But I’m still not forgiving of a public official.
Mr. Henricks: I’m not asking you that. You’re asking us to make a ruling here.
We’re not asking you whether you’re forgiving or not, you
understand. We make a ruling based on what all the circumstances
are.
Ms. Tita: I respect that, but I am.
Mr. Henricks: And you should know about what all there is.
Mr. Balsis: Mr. Henricks is helping you to know everything.
Ms. Tita: Yes, and I would like to know that, and will still stand by my
position as a taxpayer and a citizen that no public official in
a meeting like then, an open meeting, should attack or come after
an individual who has filed a petition like I did.
Mr. Henricks: You realize we have a transcript of that particular hearing?
Ms. Tita: I also have just received in my email a copy of the video of
that meeting.
Mr. Henricks: Okay, we need that too.
Ms. Tita: That would be very helpful because I’m under the assumption that
it’s going to come down to he said she said.
Mr. Henricks: Alright. No it isn’t, because it’s going to be the video of that
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hearing, of July 3 that you’re pointing to, we would like, I think it
would be helpful for us to see that video don’t you?
Mr. Adams: I think it probably would be. I would only point out, I’m not
sure that the petitioner necessarily has seen the Respondent’s...
Ms. Tita: I’ve hadn’t seen any of it.
Mr. Adams: …response right? Because we’re just in the process of deciding
what…
Mr. Henricks: I just wanted to let you know we do have a transcript of that
hearing.
Mr. Adams: Several hearings. It’s actually three hearings in there.
Mr. Henricks: Okay what I’m going to do is, I’m going to make a motion that
she be supplied all correspondence that we received from the
Commission and the other parties that’s on the Commission,
which would be the Planning Director, and Ms. Kawauchi also
corresponded with us, so she’ll be included in that request. Also,
all replies we made to those correspondence. Alright. That’s
my motion at this time.
Mr. Adams: Second.
Mr. Henricks: The motion includes being turned over to the Petitioner, alright.
Along with that, I’m going to make a second motion. I’m going
either motion for continuance or set this for one more hearing
the next time.
Mr. Balsis: Let’s do that after we take care of the documentation.
Mr. Henricks: Okay.
Mr. Balsis: With regard, there is been moved and seconded for the Board of
Ethics to provide the correspondence back and forth with the
Planning Commission with regards to their inquiry concerning
Ms. Kawauchi’s ability to represent someone to the Planning
Commission. Is there any discussion on this?
Mr. Adams: Yes. This is all public forum material at this point, that’s what this
is that we’re providing, but sometimes it’s difficult for the public
to understand what’s there, and so the judge is making sure that
Petitioner has access to the things that we are familiar with. But I
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would just point out, it’s not anything other than public forum
material that we’re talking about.
Ms. Schoen: And we’ll been more than happy to provide her with all
correspondence, and I’m going to include also the minutes
too of our meetings, so that she can see what’s happened at
these meetings in response to all of the correspondence
that has been coming to the Board of Ethics from the
Planning Director and the representations that were made
before this Board.
Mr. Henricks: The reason I made that available to you is cause I wanted you to
know, I use the word privy. We are privy to this information, it’s
in our minds. If we make a ruling maybe something in our minds
is working on our ruling you wouldn’t know about it unless we
let you know what we’re using. So you must have all the
information we have before you can understand what we’re doing.
You understand?
Ms. Tita: Yes.
Mr. Henricks: So therefore, that, as you say, you can reply to anyway you want
to, but you should have it anyway.
Ms. Tita: I would appreciate that.
Mr. Balsis: Okay it’s been moved, seconded and it’s also been discussed.
Any further discussion? We’ll call for a vote. All those in favor of
the motion say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye.
Mr. Balsis: The vote is unanimous. I believe Mr. Henricks you have another
one?
Mr. Henricks: Yes. The second motion is since we have supposedly the video of
this particular hearing. Do we have a video Ms. Masunaga? Do
you know about a video being involved?
Ms. Masunaga: I would have to see if it’s available through the Planning
Department because sometimes once they finish the transcripts it
might not be available. I would have to check.
Mr. Henricks: I would like to see that video because as she says I’ve been
involved in meetings where the transcript shows one thing and
what happens at the tenure of the meeting is a different thing. So
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you know in case this had happened, because right now I tell you,
this transcript is pretty clean.
Ms. Tita: Cut and dry, I figured that.
Mr. Henricks: So I’m going to have to give you the benefit of the doubt and say
if there’s a video involved I would like to see it, and I think it’s
fair to her that we do see it. So therefore, I’m going to have to
make a motion to send this to a formal hearing at this time.
Ms. Masunaga: Excuse me.
Ms. Schoen: Can you come forward and state your name for the record.
Ms. Masunaga: Hi I’m Margaret Masunaga. I’m the attorney for the Windward
Planning Commission, I’m a Deputy Corporation Counsel.
The County of Hawai‘i does not videotape, so the video that
you are referring to is not an official record. I will go and check
with the Planning Department if they have a video, but to my
knowledge, we never videotape any meetings. So if there is a
videotape out there, it’s not part of our official Windward Planning
Commission proceedings.
Mr. Henricks: Alright I’ll ask Ms. Tita. Do you know about a video?
Ms. Tita: Yes, Ms. Kawauchi has obtained it by the same videographer that
attends every County hearing in the interest of the public. She
videotapes these and then she puts them on the internet.
Mr. Henricks: Okay since the County didn’t have it, why she didn’t bring out
as evidence then? You bring it forward then.
Ms. Tita: I will bring it forward.
Mr. Henricks: Okay I’d like to make a motion to set for a formal hearing and that
she brings forth her evidence from the video, and since we’re
going to have to continue it anyway you might as well postpone
the hearing and not begrudge it any further.
Mr. Balsis: There is a motion on the floor to move this petition to a formal
hearing.
Mr. Henricks: Just a minute before we go that far. Do we have to go to formal
hearing or just go to another preliminary hearing?
Ms. Schoen: You can do informal. So your options are you can dismiss the
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matter, you can continue this initial review, you can set it for
informal or you can set it for formal.
Mr. Henricks: Let’s go for informal. Alright, I’ll make a motion for an informal
hearing at the next hearing. At that time we will request that Ms.
Tita bring forward her video so we can look at it whether it’s
official video, it doesn’t matter it’s still evidence.
Mr. Adams: Second.
Ms. Masunaga: I’m sorry, I’m going to reserve my right to object to the video
because I haven’t seen it.
Mr. Henricks: Well you will see it the same time we do then, because we haven’t
seen it either.
Mr. Balsis: It’s been moved and seconded that we go into an informal hearing,
and Ms. Tita would need to provide the video that she is aware of
that was taken during…
Ms. Schoen: I’m sorry Mr. Chair can we just, so that it’s cleaner, can you just
do a motion on whether or not to have an informal hearing and
then we can talk about who brings what after that.
Mr. Balsis: It’s been moved and seconded that we have an informal hearing
at the next meeting regarding Petition No. 2014-09. Is there a
second to this motion?
Mr. Adams: Second.
Mr. Balsis: It’s been moved and seconded. Is there discussion with
regards specifically to having an informal hearing? Hearing
no discussion. I call for a vote. All those in favor of the informal
hearing say aye.
Mr. Balsis, Ms. Kahakalau, Mr. Henricks, Mr. Adams (simultaneously): Aye.
Mr. Balsis: The vote is unanimous to have an informal hearing.
Mr. Henricks: Alright, Ms. Tita since you are going to provide the video for us
to see if the hearing is available on…
Ms. Tita: I will have the transcripts of that.
Mr. Henricks: …I will request that you make a copy available to Ms.
Masunaga before you bring it to the hearing, will you do that?
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Ms. Tita: Yes.
Mr. Henricks: Ms. Masunaga any objection to that?
Ms. Masunaga: No.
Mr. Balsis: I don’t think we need to move with regards to Ms. Tita
bringing the video.
Mr. Henricks: If she does, she does. If she doesn’t, we don’t have it, that’s all.
Mr. Balsis: At the next meeting we will have an informal hearing on this.
Ms. Tita at this time I’d like to thank you for coming in and
we’ll see you next month.
Ms. Tita: You will notify me by…
Mr. Henricks: Yes and try to give them a little bit of time to see that, but
don’t hand it to them when you walk thru the door.
She’ll give you an address or something where you can.
Ms. Tita: I would like to take the time off the record to just personally
thank this Commission for being fair. I do.
Mr. Henricks: You may not thank us later though.
Ms. Tita: It doesn’t matter, at this point sir, I have a sense of fairness.
Mr. Henricks: Because we’re pretty tough.
Mr. Adams: If I might Mr. Chair, just a comment so the Petitioner’s aware
there is no off the record while we’re here in session. What I was
going to say was just, so you have an understanding that the
process we just went through is the process. You presented a
petition, and we then had, we took your testimony. We had the
opportunity to hear from the Respondent, but would not
necessarily be something you would see initially because this was
part of that petition process, and we also had the Respondent’s,
well we have the Planning Commission’s attorney from the County
here as well, who had the opportunity to provide some evidence.
All that goes into the decision making that we have, then what to
do with the Petition. In this case we’re going into an informal
hearing, one of three or four things that we have the option to do.
It’s at that next informal hearing where we’ll be able to then
determine, listen to evidence that specific to the issues that are
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being presented to petition, as well as hear from the Respondent in
a specific way. So that’s where that, if you will, in a judicial sense
the hearing is.
Ms. Tita: That seems fair, thank you.
Ms. Kahakalau: You mentioned earlier that it’s posted on the internet, It’s a
YouTube? Is that what you were saying?
Ms. Tita: What this individual does, the videographer, she video’s every
hearing and then she posts those on the internet, and I’m not
exactly sure where it is on the internet, but I have heard from
other Hawaiian Acres residents that they were able to preview
the hearing on the internet, what was discussed, what was said.
Ms. Kahakalau: So I’m just suggesting for efficiency, say maybe all you
would have to provide is the link, go to the Planning Department
and us rather than for her to have to download and copy whatever
else. If it is a public thing.
Mr. Balsis: That is if we have access to internet.
Ms. Kahakalau: And then we have the link, then we could even watch it prior to,
or whatever, or certainly it could be forwarded to the Planning
Department.
Ms. Tita: Ms. Kawauchi informed me this morning that she did have it and
that she had sent it to me thru email, but I didn’t want to be late.
Mr. Adams: I would caution that our ability to review any evidence outside of
these meetings is, we’re prohibited from doing that. So we really
now cannot actually go and take a look at that Youtube stuff. We
have to wait for the evidence you presented to be presented here.
Mr. Balsis: Thank you very much Ms. Tita.
Ms. Tita: Thank you very much.
Motion and Vote: Mr. Balsis moved to go into executive session for the purpose of
reviewing executive session minutes of August 13, 2014, and to consult with legal counsel, if
necessary. Ms. Kahakalau seconded the motion. All members voted aye.
10:29 a.m. The Board left regular session.
* * * * *
10:30 a.m. The Board returned to regular session.
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5. VOTING ON EXECUTIVE SESSION MATTERS
a. Review of the executive session minutes of August 13, 2014
Motion and vote: Mr. Balsis moved to approve the executive session minutes of
August 13, 2014. Ms. Kahakalau seconded the motion. Mr. Balsis, Ms. Kahakalau and
Mr. Adams voted aye. Mr. Henricks abstained as he was not present at the August 13,
2014 meeting.
6. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND
PROCEDURES OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAII
Mr. Balsis stated that at the last meeting, it was briefly mentioned about looking
at the Rules of Practice and Procedures of the Board of Ethics. He also stated that Ms.
Kahakalau had comments in regards to this matter.
Ms. Kahakalau suggests the Rules of Practice and Procedures of the Commission
be reviewed on a regular basis either by the entire Board or by a representative of the
Board. The review of the Rules of Practice and Procedures would be done to see if it’s
current, applicable and if any changes need to be made.
Mr. Adams stated that he volunteered to take on the task.
Mr. Balsis stated that with his present work load, he is unable to take on the task.
Mr. Adams asked if the review should take place in executive session or as an
open forum. Ms. Schoen stated that it needs to be in an open forum and to agendize the
review. Mr. Adams would like to prepare a report on the review of the rules of practice
and procedures and present it to the Board for discussion. Mr. Balsis suggested that
when the report is done that it be given to Ms. Schoen or Ms. Lawrence for circulation to
the Board members. Ms. Schoen indicated that she has some ideas regarding the review
for the board to think about. Mr. Adams asked if while preparing the report, he would be
able to confer with Corporation Counsel without violating the sunshine law. Ms. Schoen
said that Mr. Adams can call her anytime to talk about anything.
Mr. Balsis asked if comments coming from a board member need to go thru Ms.
Schoen so the sunshine law is not violated. Ms. Schoen suggested that the matter be
agendized so the board members can openly discuss the matter and not have it go thru
her.
Motion and vote: Mr. Balsis moved that Mr. Adams be appointed to do a formal
review of the Board of Ethics rules of practice and procedures and report back to the
board for open discussion. Ms. Kahakalau seconded the motion, and all members voted
aye.
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Mr. Balsis asked if there’s any discussion on the motion. Mr. Adams asked if the
review is on the rules of practice and procedures dated January 12, 1990. Mr. Balsis said
yes and Ms. Kahakalau added that the executive session procedures dated August 16,
2001 should be included in the review.
7. ANNOUNCEMENTS
Mr. Balsis announced the Board’s next meeting on October 15, 2014 at 10:00 a.m. at the
Hawai‘i County Building at 25 Aupuni Street, Council Chambers.
8. ADJOURNMENT
Mr. Balsis adjourned the meeting at 10:47 a.m.
Respectfully submitted:
Renee K. Lawrence, Secretary
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