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HomeMy WebLinkAbout2014-10-15 Board of Ethics Minutes HAWAI‘I COUNTY BOARD OF ETHICS MINUTES – REGULAR SESSION Wednesday, October 15, 2014 10:03 a.m. to 10:59 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 10:03 a.m. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS There were no statements from the public. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF SEPTEMBER 10, 2014 Motion and Vote: Mr. Adams moved to approve the minutes. Ms. Kahakalau seconded the motion. All members voted aye. 4. NEW BUSINESS There was no new business. 1 5. UNFINISHED BUSINESS a.Petition No. 2014-09: Informal hearing of petition by Susan Tita alleging that Greg Henkel, a County officer, is in violation of Section 2-83(a)(3) of the Code of Ethics, because, inter alia, he “questioned the actions and behavior of “ Ms. Tita’s attorney and his “lack of decorum and disregard for public decency has embarrassed and humiliated me in front of the public eye.” Mr. Balsis: Just to make sure I have the process down, may I ask counsel, first we’ll hear from Susan Tita and then from the Respondent? 1 Blanks indicate inaudible or indecipherable speech. 1 Ms. Schoen: Yeah. Whatever the Board’s pleasure, but this is an informal hearing so that would seem acceptable. Mr. Balsis: Ms. Tita, and come on up with your counsel. Ms. Kawauchi: Actually she will be appearing on her own for now. Thank you though. Mr. Balsis: Ok cool. Ms. Schoen: But Mr. Chair while we’re waiting, the last, at the last hearing the Board had asked that we provide Ms. Tita with all of the documents, correspondence, meeting minutes that had taken place prior to our last Board of Ethics meeting, so we did do that. The Board had also asked that a dvd be provided by Ms. Tita, and that was not provided. So just for your information, the information the Board asked us to provide was done. Mr. Henricks: Did she get all the information that I requested that she be provided? Ms. Schoen: Yes. Mr. Henricks: Alright, at this time I would like to make a motion that all the information be incorporated into this record by reference. Ms. Kahakalau: I’ll second that motion Mr. Balsis: Any discussion? It’s been moved and seconded that the information provided Ms. Tita be incorporated in the record as reference. Mr. Henricks: Let me explain why I did that ok. Go ahead. Mr. Balsis: Go ahead, discussion. Mr. Henricks: Alright, I’d like to explain why I did that. The reason I incorporated into the record by reference is because I am going to use that in my findings as part of my material that’s why I wanted you to have it first, but before I could use all the information I must have it in the record before it can be considered. Just, you understand that of course. That’s why we’re doing it this way so that means all that material you, that was sent to you will part of the record. You understand, anybody else have any problems with that? Do you have a problem with it? 2 Mr. Henkel: Only that I’d like to specify that the complaint against me was rd specifically for the July 3 meeting and any material submitted for any other day would be dead just to let… Mr. Henricks: That is not what we submitted that for, you should have a copy of it. Mr. Henkel: I have not gotten anything. Mr. Henricks: Do you want to postpone this meeting until you get a copy? Mr. Henkel: No, I’m good to go. Mr. Henricks: You ready to go anyway? Mr. Henkel: Sure. Mr. Henricks: Ok let me explain what the materials were. The materials concern communications between the Board and the members of your Commission as to what was happening and trying to get a hearing before this Board, that is what those materials were. Do you understand that? Mr. Henkel: By the Board you mean you folks? Mr. Henricks: Yes. Your Board was communicating with us. You understand? Mr. Henkel: Sure. Mr. Henricks: And therefore you’re trying to tell us you were having a problem down there and you’re telling us that you’re trying to resolve it, so I’m saying is it was this communication going back and forth between us for those few months. So therefore, I want that part of this record so that I can look at it too. Mr. Adams: And I would only add that communication is already an open record, it’s not some specific communication that was… Everything that we had was in the open record already, all that was done was collated, collected and collated and provided. Mr. Henkel: And I have that information as it was announced to the Planning Commission by the Planning Department so yeah, I’m fine with it. I’m against any delays. Mr. Henricks: That’s what we’re referring to and I want to make sure she had it too before we… 3 Mr. Balsis: There is a motion for, there is discussion, Counsel? Ms. Schoen: I’m sorry, why don’t you deal with your motion. But I was just going to ask that I be allowed to just provide and read for the record the documents that were submitted. Mr. Balsis: So there is a motion on the floor, I don’t think I need to repeat the motion. There’s been discussion, any further discussion? All those in favor of this motion say aye. Mr. Balsis, Ms. Kahakalau, Mr. Henricks and Mr. Adams (simultaneously): Aye. Mr. Balsis: All those opposed? There are none. Counsel you had something you wanted to mention. Ms. Schoen: Yes, so Mr. Chair the documents that were provided to the Petitioner include: March 10, 2014 letter from the Planning Director to the Board of Ethics, April 9, 2014 minutes of the Board of Ethics meeting, April 21, 2014 correspondence from this Board to the Planning Director Duane Kanuha, May 2, 2014 letter from th Mr. Kanuha to this Board, May 14 minutes of the Board of Ethics meeting, May 28, 2014 correspondence to Ms. Kawauchi from the Board of Ethics secretary notifying her of an informal hearing, thth June 25 Board of Ethics meeting minutes and July 16 Board of th Ethics meeting minutes, August 13 Board of Ethics meeting minutes and then an informal advisory opinion from this Board th dated August 13. Mr. Balsis: Ms. Tita you did receive all this information? Ms. Tita: Yes I have. Mr. Balsis: Okay before I ask you some specific questions, have you had the opportunity to review those, that information? Ms. Tita: I reviewed most of it. Mr. Balsis: Okay, do you have any questions on what you reviewed? Ms. Tita: I keep notes at those meetings and I see and I understand and you know… Mr. Balsis: On the information that we provided. 4 Ms. Tita: Yeah it’s some things are not all entirely in there. Its, I understand that. Mr. Balsis: Okay. Ms. Tita: Yeah they can’t take it verbatim, they do their best. Mr. Balsis: At this point in time, do you have anything you’d like to say at this point? Also I believe we requested if there was any of the video that was available. Ms. Tita: Yes, I don’t see her she was in the room, the videographer. I had in my email what I thought was the actual taping of that particular meeting so then when I began to review it, I find out it was from the last meeting, the most current meeting. So then I requested from her again to have the video and from that this specific meeting that is in question and nobody seems to be able to provide that, but I do have a witness that was at that meeting with me who was willing to attest to what was said, what was discussed at the meeting to substantiate what I’m saying. Mr. Balsis: Okay go ahead. rd Ms. Kahakalau: At that meeting that you’re referring to, is that the July 3 meeting? Ms. Tita: Yes, the meeting, the meeting yes. Mr. Balsis: Mr. Henricks do you have any questions at this time? Do you have anything you would like to say at this time Ms. Tita or would you like to have your witness come forward? It’s an informal hearing so we’re not super structured. Ms. Tita: It’s not structured. It’s been suggested to me by Counsel that I ask for a hearing on this. Is that right Jamae is that what you… Mr. Balsis: This is an informal hearing now. Ms. Kawauchi: Yeah, I think that they are inviting you to bring the witness forward. Ms. Tita: Bring witness forward? Okay, yes. Mr. Balsis: Go ahead. As you come you’re here to help Ms. Tita? Ms. MacDonald: Yes. 5 Mr. Balsis: As you have a seat, please tell us who you are, your name, and then we’ll let you go ahead. Ms. MacDonald: My name is Cynthia, my last name is MacDonald and I attended the meeting with Ms. Tita. Mr. Balsis: Go ahead and speak up and then, and say what you want to say. Ms. MacDonald: Okay. I’m sorry I forgot this gentlemen’s name. Ms. Tita: Henkel. Ms. MacDonald: Mr. Henkel, that’s the issue. I was there, he was extremely obnoxious. There was some discussion and he got very upset, was saying that Jamie \[sic\] Kawauchi had lied, she had lied to the Commission and that they should hold her in contempt. He also made a remark about that Mrs. Tita had wasted, and I’m not okay, I’m not sure exactly if this is the way he put it, but he said that Mrs. Tita had wasted enough of the good people of Hawaiian Acres time, which lead me to believe that he had made up his mind you know, his decision was already made before she had standing. And another thing that bothered me about this is that they let people testify about this issue prior to ever giving Ms. Tita standing. So in my mind I don’t know what’s going on here, but the Planning Department pushed this through, Planning Commission gobbled it up, and Mr. Henkel was not at all happy about the situation to the point where in my mind he was threating repercussions against Ms. Tita’s attorney. Mr. Balsis: Okay. Any questions from the Board at this point? Mr. Adams: I do. Ms. MacDonald when you say that there was repercussions being threatened, do you have any specific anything specific about that? Ms. MacDonald: Well if I remember correctly he said that they were going to hold, was asking if they could hold her in contempt for lying to them. And like I said I may not have the exact wording, but that’s the jest of the conversation and those were the repercussions that I’m talking about that you know, there should be something done because he felt she had lied to them. Mr. Adams: Thank you. Mr. Balsis: You have anything further you would like to say at this time? 6 Ms. Tita: You know Mr. Henkel was quite aggressive in the way he spoke at that hearing and he repeated over and over that Kawauchi had lied, she had lied to the Commission, she, and it was, it just became where I felt like I was some kind of just a crumb that was there. He also, Mr. Henkel went on to ask me and I, you know, as I thought about this since I filed this complaint, he went on to ask me what have you done for Hawaiian Acres. Are you contributing anything to them? And I thought to myself now that this is all said and done, what’s the point of that question and I did respond to him and said yes, well I am doing something. I put my name to run on their Board and he was demeaning of me. He did not want to hear anymore from me and he said so, I heard enough from you and I actually, normally I behave, I try to behave responsibly as an adult and as a professional and I answered him back and said, yeah I get your point, I get your point. I mean it just was, it was not, I didn’t find it to be very professional at all. He wanted to push it through that day and he said I’ve heard enough of this I’m just, lets push it through and if it were not for not Duane, but the Planning person that had presented this in the beginning who said no, no, no, you can’t do that because we haven’t given her standing yet. And he just went on to rankle with it and say enough, you know, this has dragged on long enough and that’s when his remark came out and then told me you know you’ve caused the good people of Hawaiian Acres enough problems. I mean there’s, there was no absolutely no `I’m on the fence with the issue`, he had made up his mind and it was a done deal, just dispose of me and move this forward. And I had not been allowed to have Counsel, I found that odd too from day one. The minute Ms. Kawauchi opened her mouth she was stopped and I was dismissed, yet testimony continued to go on and they continue to take testimony as if the whole, it was to me, it’s bizarre there were no rules and I’m under the impression that every committee, every council there is rules, there were no rules. I had not been given standing or even standing was not considered, yet testimony was taken at every, every hearing. And so I don’t know what to do so sometimes I gave testimony and sometimes I didn’t because I didn’t know, but I did feel as though it was a defeated situation. So I am personally deeply disturbed by the behavior of the Windward Planning Commission as far as how they operate and more so disturbed that one of the members felt he had been empowered, and had the authority to belittle and humiliate me in public. Mr. Balsis: I’m going to ask you to stay there. Glen \[sic\] Henkel. Mr. Henkel: Greg. 7 Mr. Balsis: Greg, I’m sorry. Greg if you could come up there’s a chair here, and at this point I’m going to ask for your response to the accusations. Mr. Henkel: Yes, first of all I’m sorry I missed the last meeting, I was at a Planning conference on Maui. I couldn’t attend, but I submitted some materials. Did you get that? It was the minutes of this particular meeting that you’re talking about and my written response to her allegations and I was wondering if you got those. Mr. Balsis: We did, thank you. Mr. Henkel: Okay good. In response, well you know first of all I like to say I’ve served on a couple of voluntary board, commissions and I’d like to thank you guys because sometimes it’s a thankless job, but I know what you guys go through. So thank you for your service to the County and the people. As far as her allegations I got the rd minutes to the July 3 meeting here. I spoke four times at that meeting and in none of my statements that I’ve come anywhere close to saying what she, what Ms. Tita said that I, you know, uttered. My first one, well first of all a little background at the… th This all started in January. At the March 6 meeting we had Ms. Kawachi \[sic\] stated that she has submitted a request to the Board of Ethics for a ruling and this is after we asked her if she had gotten a reply. She said she hadn’t gotten a reply, she had submitted a request to you guys, but you guys were taking your st time and haven’t gotten back evidently. On April 21 we found out this was from the communication from Mr. Kanuha to us that the Board of Ethics never got a request from Ms. Kawachi \[sic\] th that she said she had submitted on March 6 that day. Mr. Balsis: Just to make a point there were some issues with mail and email at that time I recall. Mr. Henkel: Okay. Mr. Balsis: In the very beginning _____. Mr. Henkel: That was the information I had at the time so in the meeting when st we found out that on April 21 you guys hadn’t gotten her submission, I said so Ms. Kawachi \[sic\] is sworn in to tell the truth and obviously she wasn’t. Is that something that should be brought before the Board of Ethics in itself, other than the original issue which was her eligibility? That was the first thing I said. The next thing I said, I happened to believe that the farmers markets and 8 neighborhoods benefit the community and you mentioned all the litigation going on in Hawaiian Acres. I was wondering if the people of Hawaiian Acres had a venue where they could gather together weekly and discuss issues that possibly some of the litigation wouldn’t be necessary. So I was asking if the farmers market might help the situation there. The other thing I said was I’m a member of a community association where I live and it’s the ones that show up that do the work, that end up you know, participating. She said a group of twenty had taken over, I took it as a group of twenty are the ones that are stepping up and doing what needs to be done for the community. Then the next thing I said, is there any, is there any way we can allow the event to happen conditionally until it’s resolved, because I feel like the whole community is being punished for, by not being allowed to happen and that was a question for Corp Counsel. That’s all I said. Oh wait one more. To show that I wasn’t bias on the issue itself, I was, I felt that Ms. Kawachi \[sic\] was incorporating stalling tactics and that’s why it had dragged out since January because I was anxious to resolve the issue, and the last thing I said was I would say let’s try to resolve this one way or the other either for Ms. Tita or the Hawaiian Acres residents. So I don’t believe I was showing bias. Numerous people, probably a dozen or more, showed up to testify in favor of the farmers market from the beginning and Ms. Tita has been the only one that’s testified against it, so I was weighing the evidence, the testimony, my own experience with farmers markets and my own experience with my neighborhood association, which I’m a volunteering member, and I’ll stand by everything I said. Mr. Balsis: At this point I’m going to ask members of the Board if they have questions for either Ms. Tita or Mr. Henkel. Mr. Adams: Mr. Henkel how are the minutes taken? Is it like we see here where we have the microphone and we have it verbatim in a typing or… Mr. Henkel: Yes, there’s an audio record as well I believe. I don’t know how that is made available to people, but the published minutes are you know, they’re a matter of public record and they’re sent out to Board members and they’re online at the County website for everybody else to review. Mr. Adams: And that, but that wasn’t the question. The question is how were the minutes taken, they’re taken much as you’re seeing here? 9 Mr. Henkel: They’re yeah, first audio and then they’re transcribed I guess you’d say. Mr. Adams: Thank you. Mr. Balsis: Ku do you have any questions? Ms. Kahakalau: As far as the minutes, all the other statements in the minutes, as far as you’re concerned the ones that you have in front of you, are everything is accurate in those minutes? Mr. Henkel: Yes. Sometimes I think they’re too accurate because when I, when I, I don’t speak publicly very well and sometimes there’s a lot of mm, um’s and they even include those in there which makes me sound dumb. Ms. Schoen: Mr. Chair it’s just for the Board’s information, it’s my understanding that the minutes of the Planning Commission are taken verbatim, and the reason I say that is the secretary also prepares the Board of Appeals minutes for which I’m the counsel for and they’re all verbatim. Mr. Balsis: Okay, Mr. Henricks. Mr. Henricks: For the record I’d like to state, put on the record that Ms. Tita is communicating with her attorney by messages during this whole proceeding so that we have that on the record. Is that alright with you Ms. Kawauchi? That you presently are involved in this hearing. Ms. Kawauchi: I’m not, yeah. I’m not counsel of record for Ms. Tita. Mr. Henricks: But you are involved in this hearing my goodness, you realize that. Ms. Kawauchi: I’m not counsel of record for Ms. Tita, that’s all I’m going to tell you. Mr. Henricks: Then what are you doing? Ms. Kawauchi: I am …. Mr. Hendricks: What are you acting as? Ms. Kawauchi: I’m a participant as a member of the public. Mr. Hendricks: You’re a member of the public? 10 Ms. Kawauchi: Correct, I’m not counsel of record. Mr. Balsis: Go ahead Ms. Tita. Ms. Tita: You know ironically Ms. Kawauchi put a question that I’ve already have a question, I’m already going to ask that question. Where can I find those… the audio on that meeting? Where? Where can I find the audio on the meeting? I believe I’ve asked for that and I’m told there wasn’t an audio so I’m perplexed where can I find the audio on the meeting, and who transcribes or how do we know those… Ms. Schoen: So I can answer that. Mr. Balsis: Yes, please do. Ms. Schoen: Mr. Chair my understanding is the secretary will take an audio, she will transcribe it, and the Board will vote as to the accuracy and the acceptance of the minutes, and then after that the audio is destroyed. So the County is under no obligation to preserve the audio transcription, they use it merely for the secretary’s convenience. Ms. Tita: So that’s why I couldn’t find it, and I’m told that it doesn’t, it’s nonexistent. Ms. Schoen: And that’s probably because they don’t keep the audio. Ms. Tita: So it’s not put online for people to… Ms. Schoen: No they only, so if you, you know, you would have to talk to Noriko Sauer, but I can confidently say that they would not keep the audio. Ms. Tita: Yeah, so it’s not put online as suggested by Mr. Henkel, okay. Ms. Schoen: No. Mr. Henkel: I didn’t say the audio was put online, I said the minutes were put online, or if I said the audio, I was mistaken, I meant the minutes. Mr. Balsis: Do we have any comments or questions by the Board? At this time I’d like to thank both Ms. Tita and Mr. Henkel for being here, you may remain seated, the Board will go into their discussion. Go ahead. 11 Mr. Hendricks: Before you do that, can I comment? Mr. Balsis: Yes, please do. Mr. Henricks: Alright. I’ve gone over all the material on both sides, I’ve carefully gone over it. I been involved in the communication between the parties, between that Commission and this Commission, and the materials that you read. As to the accusations of improper conduct, Ms. Kawauchi that might have been a miscommunication, it might been a mistake I don’t know, but we’re not going into that, it’s not our problem at this point. There was some miscommunication going on anyway. We know that for about four or five months because we were hung up with this issue and we couldn’t move forward, alright. What I’m saying is Ms. Tita’s because I heard the transcript, her problem with Mr…, I can’t remember names… Mr. Adams: Henkel. Mr. Balsis: Henkel. Mr. Henricks: …Henkel, is probably she resents his attitude more than anything else, not what he actually said, but the way he was treating her. Okay, I’m going to try to make a distinction of what’s going on here, what I read and what was actually happening. By doing this I’m going to create a scenario for Ms. Tita. Alright Ms. Tita? You know what I mean by create a scenario right? Okay Ms. Tita you’re going home one day from work and you have your 10 year old daughter in the car and you say I’m going to stop at the supermarket and going to pick something up really quickly and go on home. So since you’re only stopping briefly, you leave your daughter in the car, alright. You go in the supermarket pick up your bread and your milk and you go and you see the counter says eight or ten express lane, eight or ten items or less, alright. You get into that lane, only one person in front of you, he’s only got two items, alright. You say I got it made, I’m going to get out of here I’m going right home. So you get into the lane and this person goes up and checks those two items in and you say I’m free, I’m out of here and what does he do, he stops and says wait I forgot something. So what he does, he goes out to the counter he goes looking around and he comes back and he brings back a bag of potato chips, he sets it on the counter and he says okay. You breathe a sigh of relief. Put the potato chips down and they check it through and he says wait I forgot something else. So he goes back out and gets some six pack of beer and he comes back and he 12 sets it there, and you say good grief and you’re shaking your head. And he passes the six pack of beer and you say okay now. He says wait I got one more thing on my list and he goes out again and he comes back with a loaf of bread, by this time you’re not very happy with what’s going on in front of you right. And you’re saying my goodness. So finally you say I’ve got to get out of this, it’s an express lane he’s right, eight or ten items or less he’s only got five items, but he stops again and he goes out again and gets a pack of cookies and he comes back a fourth time and you been standing there watching this all that time. So what do you say to him why aren’t you moving on man. Alright, were you being rude to him or were you just venting your frustration with the situation? See, now you see what I mean. You watch all what happens, he was, he was in his right he had eight items or less, but the way he did it, the way he did this whole thing created some degree of frustration upon him, upon you at that point so you said to him move it man, you know, get moving. Okay this degree of frustration is what I see in this case and that’s what I see. Ms. Tita: First of all if I may I would not say that to an individual. I have never done….. Mr. Henricks: It’s a scenario Ms. Tita. Ms. Tita: Oh it’s a scenario, but it I understand that there are problems and complications and not everything runs silky smooth in life. I deal with students day in and day out with every conceivable problem. I am extremely sensitive to words, when someone openly and viably insults me in front of people for no reason. Someone doesn’t know me, but sits on a committee as an individual who is to make a judgment over me one way or the other, is this right or is this wrong, what’s happening and not look at my side of the situation, yet call me every, every you know, nasty names. I am sensitive to the words. Mr. Henricks: Alright I’m trying to show you if there’s any impatience on part of Mr. Henkel based by… created by this situation that incurred at that time, which was a long delay over and over again and that being that’s the situation, I don’t think he was being discouraged at that point it was a reasonable amount of frustration on his part that I can see. Ms. Tita: I understand what you’re saying, but not everything runs silky smooth and it was after the Council that made that, created that problem itself by banning Ms. Kawauchi from representing me. I did not do that, I should have not been subjected to any name 13 calling or insults. I didn’t do anything, I had no idea that Ms. Kawauchi would not be permitted to represent me. Surely when I paid her the money to represent me, had I have known that I would have said whoa wait a minute here perhaps I should find someone else and once that she was in front of the Commission like that and they just stopped her dead in her tracks. It is the right thing, the fair thing, no matter how long it takes to resolve a situation for Ms. Kawauchi. And as a professional Mr. Henkel should be a professional and not take it out on me at these hearings and not jump to we’ve got to get this done because there are people that have attended those hearings way longer then me with different problems. I know I’ve attended enough hearings. I know one individual had a problem they actually took the whole Commission out to his site to show them what he had, what they liked or didn’t like about it. Even in court, court cases drag on for months it’s just part of life. Mr. Balsis: Are there any further comments or…go ahead Mr. Henkel. Mr. Henkel: I’d like to address that. Ms. Tita used terms like name calling, violence and nasty in describing my behavior and I’ve just got to reiterate that there’s absolutely nothing in the record that supports that, and it’s not true. Ms. Tita: I would say the records a bit sanitized. Mr. Adams: So let me just ask about that then because you’re pretty consistent Mr. Henkel, in addressing with your phraseology in the record. Do you have a recollection in your own memory of that particular meeting? Or you’re just relying pretty much on what the record… Mr. Henkel: No, I have a recollection being, 65 years old and missing probably a few brain cells. I have a recollection of the whole episode from January on. Mr. Adams: Okay. So when we talk about this specific one here, which was rd, July 3 that particular meeting of the Windward Planning Commission. Are you, are you also saying that in addition to what the record is saying that that’s also your memory of what occurred? Mr. Henkel: Yeah and I’d say the record is accurate. I’d say I probably was th somewhat frustrated and that stems from the March 6 meeting when, but it wasn’t with Ms. Tita or the issues of farmers market. It was my frustration lied with her attorney Ms. Kawauchi, and at th the March 6 meeting she said that she had, she hadn’t heard from 14 the Board of Ethics in response to her request. Later in that same meeting she was asked when did you submit the request, and she said this morning. Well of course she hadn’t heard from you then, she just then, she just told us that she only submitted it that very same morning. Then, then it was at the later meeting you know st that we found out about on the 21, the Board of Ethics said that they hadn’t even gotten the request that she had you know, told us that she had submitted. So I was, I was frustrated with the situation with Ms. Kawachi \[sic\] if, there was some kind of misunderstanding between the two Boards I apologize to you, but I wasn’t aware of that at the time. Mr. Adams: Thank you. Ms. Tita: So are we also to then say that Ms. MacDonald is not being truthful here in front of this Commission? Is she not being truthful? She’s a representative of the, of, in society here in good standing. Mr. Adams: Sure let me address that, alright. What we have here is we have the opportunity to listen to a variety of witnesses, right? We’re having an informal hearing so we’re having this conversation right? We already had the judge provide some of his thoughts on it and he even provided a scenario for us right? You won’t have any of us say, I think I can say this. You won’t have any of us say that anybody here is speaking untruthfully. I don’t believe anybody here is speaking untruthfully. Does that mean, so what does that mean? It means that everybody has their own specific perspective of what occurred right? Doesn’t mean that there are lies being tossed around, but does mean you have different perspectives. Part of our responsibility as a Board is then to try and address those different perspectives and see whether they fit into the ordinance that we have in front of us, the charter that we have in front of us and how that then plays out. So I don’t want you to go away from here or even being in here with the idea that we think that somebody told the truth and somebody didn’t tell the truth. Personally I think you’re all telling the truth as you know it. It’s our responsibility to try and figure that out. Mr. Balsis: Are there any further comments from the Board or questions? Okay at this point in time if you could just remain there just in case we have any further questions. The Board will go into discussion. I’m just going to go around the… Ms. Kahakalau: Yeah I think the… 15 Mr. Balsis: This is among the Board here. Ms. Kahakalau: The issue with the, the you know, lying had to do with the timing of the, of the, Ms. Kawauchi’s release from the County and therefore being allowed to be, to represent basically and that was all clarified. And so, so we know, we know now that didn’t happen, but Mr. Henkel at that time he didn’t have any of the understanding so he came from the perspective of what he had heard, which was that she was not allowed to represent at that time kind of. And that all has been clarified so I think that’s, I wouldn’t even put that out there anymore as an issue because it was somebody not having all the information and the information came out it’s obvious that, that was not the case. I can see where people came from different perspectives you know like Mr. Adams had said, but I don’t, I don’t see that there was the minutes certainly don’t show us that there was any kind of evidence of what is being stated, yet we can also sympathize and understand that when you’re trying to fight for a certain issue you know that you get personally very involved and also personally very sensitive, but I just don’t see where we have any kind of documentation that you know, that validates the accusation. And that’s kind of a really difficult spot I think. Mr. Balsis: Mr. Henricks. Mr. Henricks: Yes the reason I gave that scenario of that point is cause I wanted to show that my view point is that if there’s any irritation or impatience shown by Mr. Henkel it was directed at the situation and not at Ms. Tita as being a discourteous thing toward her, but he was addressing the situation with his impatience and that’s what I’m thinking of at this time. That’s my position. Mr. Balsis: Do you have any comments? Mr. Adams: I do and let me just follow up then with what the judge was talking about. I frankly concur with our Vice Chair in total of what she was talking about now so I don’t have to say it. I’ll go back to the ordinance that we’re talking about 2-83(a)(3), all persons shall be treated in a courteous, fair and impartial manner, and so when I go back and I listen to both Ms. Tita and Ms. MacDonald and also Mr. Henkel, to take Ms. MacDonald’s comments specifically it appeared Mr. Henkel’s mind was already made up. Frankly that may have been the case, there’s nothing that indicates, I mean if I take a look at the minutes I would probably concur as well, but that is not treating people in a, that’s not treating them in a non- courteous or impartial manner. That’s he made his mind up as a 16 part of the conversation. The idea of threating repercussions, holding in contempt for lying, repeating again and again those are the things that I’d have to go back to and see is, are there any, is there anything there in the impartial records that we have that’s why I ask the question about the minutes and how they’re taken. There is no indication that there’s any reason for the taker of the minutes the one that’s transcribing the audio to have any particular, what’s the phrase I’m looking for, to have any particular belief one way or the other in the situation, they’re just going to transcribe the minutes. So what we have is, a representation of what was said as we’re able to get. And when I take a look at that I don’t find, I find again a frustration with a situation that has since been resolved and is not actually part of the conversation here, but I don’t find where individuals were treated in a, in an incourteous and unfair or like a partial manner non-impartial manner. So I don’t, I don’t think I would find that the (a)(3) has necessarily been broken. Can Mr. Henkel be loud? Can Mr. Henkel be forceful? I think we can, I think he’s demonstrated that that’s the case here. Are, is the Windward Planning Commission as most planning commissions are dealing with issues where emotions can run high? Certainly and so I would, I’m sure Mr. Henkel will take this under advisement you have to be cautious when you’re dealing with matters of public concern and dealing with members of the public. We’re also going to have their own emotions perhaps running high in terms of specific things and their opportunity to be heard and I don’t necessarily find a violation here. Mr. Balsis: Mr. Henricks do you have anything further to say? Mr. Henricks: Nothing else. Mr. Balsis: At this point in time we’ve had discussion. Is there, is there any motions or as to what we would like to do with the petition at this point in time? Mr. Adams: If I could ask Counsel what are our options again in dealing with the petition? Ms. Schoen: You may at this point dismiss the petition or may make a finding of no violation. I’m sorry, in the past where you have entertained an informal hearing, have taken testimony, and I have seen you styled it more as a finding of no violation and then the informal advisory opinion will articulate in more detail what was discussed versus a dismissal, it’s you know, usually not after you have taken testimony and documentary evidence, but your rules allow you to do either one. 17 Mr. Henricks: Make a motion to dismiss. Mr. Adams: Yeah, I, alright why don’t you do that one. Mr. Henricks: Alright at this time I’d like to make a motion to dismiss based on the conclusions I came to in my scenario that Mr. Henkel, if he was impatient and frustrated it was directed at the situation and was not at any attempt to on anyway be discourteous to Ms. Tita. Mr. Adams: I would second that. Mr. Balsis: The motion has been made and has been seconded and so let’s have some discussion on this specific motion. Mr. Adams: Are we dismissing or are we coming up with a finding? Cause if we’re dismissing then there’s no reason for, there doesn’t have to be anything in reason for the dismissal. Right if you’re going…. Mr. Balsis: The motion is to dismiss. Mr. Adams: Right. I would, the only thing I would _____ without. My only concern is that the record, we know that there’s an audio version of this. We know that the transcription, that the minutes are transcribed version of those of that audio. We haven’t heard the audio necessarily we’re, I’m taking that the minutes are a fair representation on what’s on the audio and so that’s where I’m going to be. If there is, if the audio shows up and it turns out that’s not the case then I wouldn’t want this dismissal necessarily be prejudicial to any future, but it will only be in that situation that I would _____. You understand what I’m saying? Mr. Henricks: I don’t agree with it, but you can say it. Mr. Adams: I’m just saying that… Mr. Henricks: I’m dismissing period, with no conditions upon my dismissal. Mr. Adams: Without prejudice? Fair and that’s fine we can do that it doesn’t prevent anything else. Ms. Kahakalau: I would also go with Judge Hendricks because there’s nobody now that’s going to be following up, a, you know, it’s very well be that it has been erased already, but because it’s not a practice to keep it and because there’s you know, not even I think a clear guideline 18 that they’re allowed to get that and then compare it against the written notes. I would also go with the dismissal as is. Mr. Balsis: I would just like to add that while this is being dismissed, rather than having a finding, that the minutes of this meeting in itself will delineate the reasonings behind our decisions. Mr. Adams: At least our, our conversation about it? Mr. Balsis: That is correct. Is there any further discussion? In that case I call for a vote. The vote is to dismiss petition number 2014-09. All those in favor say aye. Mr. Balsis, Mr. Adams, Mr. Henricks, Ms. Kahakalau (simultaneously): Aye. Mr. Balsis: All those opposed. Hearing none, petition number 2014-09 has been dismissed. Ms. Schoen: So Mr. Chair, as our usual practice is I will draft an order for your review and then you guys can at the next hearing comment as to whether or not I’ve included everything you want or not. Mr. Balsis: That’ll be fine. I’d like to thank both Mr. Henkel and Ms. Tita for coming before the Commission. Ms. Tita: Yes, I only want to say that in the future for perhaps, the County consider very strongly not destroying taped hearings. That they would keep them for a certain period of time. Ms. Schoen: Well they’re transcribed, the transcription and the minutes are certified that they’re accurate, and then the Board approves them so you know there are several steps to assure that whatever happened at the meeting is accurately reflected in the minutes. Mr. Balsis: So noted. Mr. Henkel: As far as I know the young lady from Occupy Hilo records all the meetings, she was there at the meeting in question so I don’t know where that recording is, but there is a record somewhere. Mr. Balsis: We tried to actually obtain that because that would have been viewed today because that was something that we really wanted to take a look at because as we all know, as was discussed earlier. Ms. Tita I tried to get that record, it’s not available. 19 Mr. Henkel: Okay, can I go? Mr. Balsis: Yes. Mr. Henkel: Thank you all for your time. Mr. Balsis: Thank you. Ms. Tita: Yes they said it wasn’t available. Thank you. Mr. Adams: Thank you. Mr. Balsis: And thank you. Okay at this point in time. Let me see where are we? No this is the wrong agenda. Ms. Schoen: So in the dismissal you want me to be specific or just… Mr. Adams: No, that would have been in my view if we had a finding, that if we had a finding then you would identify the reason. Ms. Schoen: With the finding, it’s a no violation, I’m sorry that I mean… Mr. Adams: That’s right. Ms. Schoen: In essence it’s you’re dismissing because there is no violation. Mr. Adams: Right it was, to be honest with you I think that the Chair actually has leeway on that. The Chair wants… Mr. Balsis: I think in this particular case if I may, we are simply dismissing the petition and that the, because there is no findings and there’s no reason to discuss why we came up with findings the minutes of the meeting will articulate our discussion and the reasoning’s behind our dismissal. Ms. Schoen: I’m totally, I’m fine with that. Mr. Balsis: And I think that would be the track. Ms. Schoen: I don’t care one way or the other, but just… Mr. Adams: Let me just say this for the record also that right, that when we do a dismissal on a situation that is much like this one the idea of dismissing the petition allows for, allows us not necessarily to have to articulate more than just the conversation that we had about it. We are moving off of, in a situation like this, off of the legal 20 framework in my perspective and more to the evidence framework and so that the findings would be based on a legal framework and that’s great, we can do that, but when we’re just talking strictly our view of what the evidence is the dismissal is enough of it. Mr. Balsis: Was appropriate, lack of evidence. Ms. Schoen: I mean easy for me right. That’s only one paragraph versus five or six or seven or eight pages. Mr. Balsis: Yes, you are correct Counsel. Ms. Schoen: So I mean it matters to me what you guys want to do. Mr. Adams: But I think about this in terms of this is still a precedent setting Board. Ms. Schoen: Well it is. Mr. Adams: And so is there anything to be gained in the future from having taken my thought was, was there anything to be gained in the future from having this be a finding as opposed to no decision and I’m in concurrence that this is, this was primarily evidence, there just wasn’t really anything frame work wise that was going to be helpful. Ms. Schoen: Okay. Motion and Vote: Mr. Balsis moved to go into executive session for the purpose of reviewing executive session minutes of September 10, 2014, and to consult with legal counsel, if necessary. Ms. Kahakalau seconded the motion. All members voted aye. 10:56 a.m. The Board left regular session. * * * * * 10:57 a.m. The Board returned to regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a.Review of the executive session minutes of September 10, 2014 Motion and vote: Mr. Balsis moved to approve the executive session minutes of September 10, 2014. Mr. Henricks seconded the motion. All members voted aye. 7. DISCUSSION REGARDING AMENDMENTS TO THE RULES OF PRACTICE AND PROCEDURE OF THE BOARD OF ETHICS OF THE COUNTY OF HAWAI‘I 21 There were no reports or discussion. 8. ANNOUNCEMENTS Mr. Balsis announced the Board’s next meeting on November 12, 2014 at 10:00 a.m. at the Hawai‘i County Building at 25 Aupuni Street, Room 1501. 9. ADJOURNMENT Mr. Balsis adjourned the meeting at 10:59 a.m. Respectfully submitted: Renee K. Lawrence, Secretary 22