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Home My WebLink About2016-10-11 Regular Session Minutes HAWAII COUNTY BOARD OF ETHICS MINUTES—REGULAR SESSION Tuesday, October 11, 2016 10:05 to 2:47 p.m. Hawai`i County Building 25 Aupuni Street County Council Chambers Hilo, Hawai`i 96720 Members and Staff Present: Ku Kahakalau, Chair Kenneth Goodenow, Vice-Chair Douglass Adams, Member Rick Robinson, Member Darnel Kalele, Member J Yoshimoto, Deputy Corporation Counsel Emily Hirayama, Secretary 1. CALL TO ORDER Ms. Kahakalau called the meeting to order at 10:05 a.m. Board members please go ahead and introduce yourselves. Doug Adams, Pili Kalele, Rick Robinson and Ken Goodenow Thank you. 2. STATEMENTS FROM THE PUBLIC ON AGENDA ITEMS Ms. Kahakalau: We're gonna start with statements from the public on agenda items so when I call your name if you could please come up...introduce yourself and tell us to what specific agenda item you're speaking. We are starting off with Bruce Hansen. Mr. Hansen if you could please come up, state your name and the agenda item you're speaking. 1) Bruce Hansen (Hilo) signed up to testify on agenda item 4d, Petition No. 2016-17. Mr. Hansen: I didn't get the agenda item because I didn't know I was needing to write it...it's on my form though yeah? I believe it was "d" pertaining to County employee...the Neil Erickson...yeah....that enough? Okay. I'm just here as a character witness for Neil. I'm a general contractor...I had my license since 1989 here in Hilo. I've worked with Neil...probably since that time or I'm not sure when we first met each other. He was an architect...he did projects that I built...I actually hired him as an architect to do design build projects that we did. Also as a good friend...when Neil first applied for the job working for the building department...I kind of advised him against it...why would you 1 want to put yourself in that spotlight through all of the stuff building permit goes through when you're a good architect. He said I want to do some good...I think I can make some positive changes there. I'm retired by the way so I have nothing to gain from supporting Neil. Neil's prospective on the building department is to try and help people. We talk a lot about...as I've retired so now we talk about the codes in the department and relations and things going on there. His prospective is always been to try and help people and that's why he took the job. I've never seen him show favoritism...I've never gotten favoritism from Neil even though we've worked together for a long time. It's not who he is...he's here to help and to enforce the code which I happen to believe is important as a contractor...I see a lot of people who don't go by the code and a lot of things that shouldn't be built be built. So again this is just a character reference for Neil. He's an honest person, he's a good person and he has high integrity. That's it. Any questions? Ms. Kahakalau: Thank you Mr. Hansen. Mr. Hansen: Thank you. 2) Leonard Marzigliano (Hilo) signed up to testify on agenda items 4c and 4d, Petition Nos. 2016-16 and 2016-17. Ms. Kahakalau: Our next person is Leonard Marzigliano. Did I say that correctly? Please come up sir. Again if you could tell us your name and what item you are testifying to. Mr. Marzigliano: Hi...I'm Len Marzigliano, I am a referring to Petition 2016-16 and 2016-17. I'm assuming maybe some of these might be related...might be some other items, but essentially the building code that's...I have been on the island for seven days...l'm from the east coast...from outside Washington D.C. I don't know too much about construction, but I know a great deal about compliance. I work for a defense logistics agency back home doing compute security compliance...I am allowed to come out and yell back at the generals and have given speeches at the pentagon and inside the Rayburn House building on computer security compliance. So on the other hand...my wife is a local and we're looking to kind of move back and homestead out here...find some land and build a farm and what not. That's here dream and I'm lucky enough to be able to work from home and do what I do. So we're able to start early and actually came out here not to just visit relatives and what not...but we also have been scouting about the island for land or a place to settle and homestead here. We 2 heard about some of this that was happening with the building codes especially in the research that we were doing ourselves. Part of what we learned was how the County had adopted the international building codes four years ago...but in a blanket in total without any customization...without any amendments and I see similar things happen back home where we want to crack down on the folks who want to put up systems without doing the security...and they just maybe thru...maybe not necessarily thru what their motives are...but essentially they blankly throw down a thousand security control...a thousand building codes and here you go you guys have to do all this stuff and everything needs to be resistant to Category 7 hurricane. I always preach to the government the same thing...if you gold plate everything...you're not doing it right...you need to silver and bronze and gold plate everything in the right places to get it right. On the other hand...you can't just go and say I can afford this compliance so I'm just gonna do this way or I can get away with it so I'm gonna do it this way...so there's a middle ground and I'm kind of taking a centrist view here where you know in all of these things where we're talking about the building codes themselves or the enforcement of the building codes...Yes we can't just go wee willy nilly and build anything we want and sneak it past and hope we don't have a visit inspection. We also can't just blankly leverage everything and then what it comes down to is those enforcement bits of how these things are enforced and what codes are referred to in an inspection or an audit whatever it may be. That becomes very...that becomes very important and precise...it becomes a perception that's out there and I always learned in my travels in twenty-five years in IT that perception is everything and if there's a perception out there that this building stuff isn't for the little guy and you need to be billionaire or a contractor...you know the contractor and if you're just a little guy trying to homestead or build a farm or build a business and you just can't do that because you can't fight city hall if the perception gets out there...and it becomes a thing...you know the reason why I'm able to shout back at the generals about security compliance is because I know all the dirty tricks because earlier in my career I did them all and I learned how to get a system passed the auditors...you go to this one and this one and you do this and this and you wait. Now I'm hired to beat those tricks and to learn how to stream line the system and that's what we aim for is a middle ground...and especially when it comes to this enforcement...some of that may be a result of the building codes being adopted so broadly and then enforcement becomes selective. All of a sudden there's an architect...engineer...civil engineer who can pull out line items from this large library of requirements and say you're supposed to 3 do this one and over here you're supposed to do this one and it becomes inconsistent. I see this all the time in security compliance and it's a warning sign. My intent in coming to the island especially with my wife and my family is to the first thing I did was go up to Mauna Kea and visit at the Heiau. The message I got was that these people need help and that's part of why I'm here is to be part of the community and help give back and help give back what I know about things and what not. I think the only other law I wanted to cite out here is something my wife tutu showed me was a piece of paper she found years and kept and she gave me a copy of it...it's a reference to the aloha spirit law. I couldn't quote the code or something,but I'm sure you know what it is...you know when we go about these types of things...we need to consider not just the big construction companies and the folks who make five- hundred thousand dollars and can do whatever they want. I make a hundred and fifty thousand dollars a year and I'm barely able to navigate this and put this together...and what would it be like if I failed to come out here and homestead and play by the rules and what not. How's it like for someone who makes twenty thousand dollars a year...how's it like for some of these...some of the natives you know...that's my statement. Ms. Kahakalau: Thank you Mr. Marzigliano. Mr. Marzigliano: Mahalo. Ms. Kahakalau: I think that concludes our statements from the public on agenda items. 3. APPROVAL OF THE REGULAR SESSION MINUTES OF September 13, 2016. Ms. Kahakalau: So we're moving on to the approval of the regular session minutes of September 13. Do I have a motion to approve? Mr. Goodenow: So moved. Mr. Robinson: Second. Ms. Kahakalau: Alright. It's been moved and seconded...do we have any discussion? Seeing none. All those in favor say aye...any oppose? The motion passes. Motion and Vote: Mr. Goodenow moved to approve the minutes. Mr. Robinson seconded the motion. All members voted aye. 4 4. NEW BUSINESS a. Petition No. 2016-14: Request for an informal advisory opinion from a County officer or employee, to determine if there would be any restrictions in regards to Section 2-91.2 (Post-Employment) of the Hawaii County Code. (Closed Hearing requested) Ms. Kahakalau: Based on the agenda here...there's a closed hearing request. Is the petitioner here? Am I wrong? Mr. Yoshimoto: Madame Chair one second. Ms. Kahakalau: Okay. Mr. Yoshimoto: Madame Chair as to Petition 2016-14...the petitioner is not here...I received a message asking that the Board could hold off on hearing the petition. The petitioner will arrive soon. I believe the other petition...petition 2016-17...excuse 2016-18...there here. As to 2016-14...I got a message asking that the Board hold off until they arrive. It's up to the Board. Ms. Kahakalau: Alright. Mr. Goodenow: I move that we postpone 2016-14 to the Call of the Chair to later in the meeting. Ms. Kahakalau: Do we need...I'm fine with that...do we need to do a formal motion? Mr. Yoshimoto: Yes. Ms. Kahakalau: You made the motion and we need a second. Mr. Adams: Second. Ms. Kahakalau: Any discussion in regards to that? All favor say aye any oppose. Alright we're tabling petition 2016-14. Motion and Vote: Mr. Goodenow moved to postpone 2016-14 until the Call of the Chair. Mr. Adams seconded the motion. All members voted aye. **Continued at 2:00 pm** Ms. Kahakalau: Am I correct that you requested a closed hearing? Yes which is just as well since you're the only person in here but if somebody should come. Mr. Adams: I would move then that we go into a closed hearing. 5 Mr. Goodenow: Second. Mr. Yoshimoto: And for the record the Board state the reasons why so we have a clear record. Mr. Goodenow: Pursuant to our rules...a closed hearing was... Mr. Yoshimoto: Right...was requested by the petitioner and the Board finds that there is a basis to go into a closed hearing. Mr. Goodenow: Alright. Mr. Yoshimoto: We also need a motion to remove this from the table for procedural matters. Mr. Goodenow: Okay. Mr. Adams: We never actually did that...I asked at the beginning...we never really moved it...well I guess we did... Mr. Goodenow: We continued it to the Call of the Chair. Mr. Adams: Yeah we tabled it to the Call of the Chair...I move that we bring it back to the agenda. Mr. Goodenow: Alright second. Ms. Kahakalau: Second...any discussion? All in favor say aye. Okay so we're on Petition No. 2016-14 and then can somebody make the motion about the closed hearing and the justification there of. Mr. Adams: I move that we move into a closed hearing to hear testimony associated with 2016-14 for the purpose of in accordance our rules that allow for a closed hearing at the request of the petitioner. Mr. Robinson: Second. Ms. Kahakalau: Alright any discussion in regards to that motion? All in favor say aye. Any oppose. Motion and Vote: Mr. Adams moved to go into a closed hearing. Mr. Robinson seconded the motion. All members voted aye. 2:00 p.m. The Board moved into executive session. 2:20 p.m. The Board returned into regular session. 6 Mr. Goodenow: Sony one procedural question. It was okay that we voted in the closed session right....it wasn't like an OIP thing we have to vote in public. Mr. Adams: That's a really good point. Mr. Goodenow: Or do we have to now vote now. Mr. Adams: That's a good point. I think we have to. Mr. Yoshimoto: You have to vote in open session. Mr. Goodenow: So I move that we defer Petition No. 2016-14 to the December meeting. Mr. Adams: To continue it. Mr. Goodenow: Continue it. I move to continue it to the December meeting. Mr. Adams: Second. Ms. Kahakalau: That has been seconded. Any discussion? All in favor say aye. Anybody oppose. Motion and Vote: Mr. Goodenow moved to continue Petition No. 2016-14 to the December meeting. Mr. Adams seconded the motion. All members voted aye. b. Petition No. 2016-15: Request for an informal advisory opinion from a County officer or employee, to determine whether there would be any conflict of interest with him bidding as a general contractor for a project with the Dept. of Environmental Management, Solid Waste Division. Ms. Kahakalau: Is that petitioner here? Alright, could you please come forward? Thank you...my first question is going to be whether you're okay with an open hearing? Mr. Andrade: Yes. Ms. Kahakalau: Yes. Okay so if you could please state your name and then give us anymore Mana`o...anymore...a statement before we get into the actual discussion. Mr. Andrade: My name is Kendrick Andrade. I'm a current contract hire employee at the Parks and Recreation Division. Basically...I'm here to get an advisory opinion on bidding as a general contractor 7 myself This is a request that was done prior to the bid opening date and at this point the bid has been opened and apparent low bidder is myself so...this is basically just to get the advisory that there is no conflict of interest. I've been here several months back with more an open general question as far as bidding on any County project...and it was advised that the...it would not be a conflict as long as it's done outside of Parks and Recreation Division. So basically this is just a clarification to make sure that everything is still okay and that I won't jeopardize losing the bid. Ms. Kahakalau: Thank you Mr. Andrade and we appreciate you coming because as we all know this is a new statute and there is still things that we're just kind of learning as we go along so thank you for asking for clarification. Do we have any questions from the Board? Mr. Adams: Thanks for coming in. Just quickly...as a contract hire employee...since I'm not sure the terminology...is that an independent contract or is that something different? Mr. Andrade: It's...as far as I understand it...it's a little different. So I'm hired essentially as a contract hire from a specific time frame to basically manage the new projects that Parks and Recreation is brought forth. For instance...Pahoa Park in the guava fields and stuff. I project manage those jobs... Mr. Adams: Your hire is done by Human Resources.... Mr. Andrade: Yes. Mr. Adams: Okay got it. Thanks. In the nature of your job in Parks and Recreation as project coordinator...what does that you were about to say...so let me ask the question...what does that entail? Mr. Andrade: Basic project management...I deal with the contractor themselves as far as the start of the projects being built to the end. I work with the project managers and the foremen and everybody else involved with the construction companies. I also work hand in hand with the design team if there is things that comes up within the construction time frame...I basically make sure that the job gets done on time. Mr. Adams: When there are bids done for Parks and Recreation projects...are you involved in any of the determination of the proposals? Determine you know looking at the bid or anything like that? 8 Mr. Andrade: No...not first hand. In my job description...I basically come into play after contractors have been elected...have won bids and what not. Mr. Adams: Got it. And then this current...the bid that you provided for this job SW4316 has nothing to do with Parks and Recreation? Mr. Andrade: No. Mr. Adams: Okay. Thank you. Ms. Kahakalau: Go ahead Mr. Robinson. Mr. Robinson: Okay Madame Chair I don't understand contract hire...does that mean you're not like permanent civil service? Mr. Andrade: Yes. Mr. Robinson: You're just hired for a like a specific period of time? Mr. Andrade: Yes. Mr. Robinson: For a specific project? Mr. Andrade: Yes. Mr. Robinson: Okay I understand now then. Okay. Thanks. Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: I move that we find no conflict...no ethics issue...no conflict with this petition to approve it. Ms. Kahakalau: Do we have a second? Ms. Kalele: I'll second. Ms. Kahakalau: Thank you. Any further discussions in regards to this? Mr. Adams: I would just point out...actually it's a question for counsel. When I took a look at definitions under 2-82 and we look at employee. It says that the term shall not include an independent contractor. So my question is...do we have a definition of that? Who an independent contractor is related to...is that a separate...is that a separate designation from these other designations that we find? When Mr. Andrade talked about being a contract hire and that 9 being handled by Human Resources...I'm assuming that if it's Human Resources driven...then that means that the County sees each of those individuals whether it's someone with benefits and full-time or somebody who is as in this situation...a limited period of time for project coordinator kind of thing or anything that Human Resources handles...that that individual then is an employee in this definition and that it would need to be someone who's not in...handled by Human Resources perhaps is handled as a project or professional services situation under procurement...that would be an independent contractor...I'm assuming that...but I don't know that. Mr. Yoshimoto: So my understanding is that Mr. Andrade is an employee of the County...hired as a contract hire...is that your understanding Mr. Andrade? Yeah so for the purposes of our code interpretation...this applies to him and I think we can move forward. Ms. Kahakalau: Any further discussion? If not I call for the question. All in favor... Mr. Adams: I'm sorry Madame Chair. For the purposes of counsel and the preparation of the order...again the key is that we created a firewall...the firewall in this situation is that the individual is...that Mr. Andrade here is working...is a contract hire in Parks and Recreation...the work that he's...the bid that he's doing is in the Department of Environmental Management Solid Waste Division...that's where the contract would be held...there is no connection between his job as an employee of the County and his work as a contractor for the County but in the Department of Environmental Management. I think that...that creates a firewall that we're looking for in the code. Mr. Yoshimoto: Madame Chair if I may. Thank you member Adams for providing that basis for the opinion. So basically there's no conflict of interest resulting from the officer or employees positon with the County as per Section 2-83. Also board members I know we've talked about this before in the past...as far as the scope of this opinion because Mr. Andrade has been here before...he asked a general question...we told him to come back with a specific situation...he's here now...as far as other contracts that he might be interested in bidding...I don't know if he is...I'm just throwing it out there because he has been here twice. Does the board have any guidance it wants to offer Mr. Andrade for the future? Ms. Kahakalau: Mr. Robinson? 10 Mr. Robinson: Well just for me I mean it's very clear...it says it depends on the nature of the relationship is disclosed when you provide the bid. That you disclose that you're a contract employee and that you've gotten the opinion from the Board that there's no conflict of interest. It appears to me that requires that every time and if you're doing contracting with the County that gets to be laborious. I don't know how...we've talked about that before...if he has to come back every time he submits a contract. Ms. Kahakalau: Yeah it's difficult the way it's currently written...it really is very, very difficult to us to do any kind of standard...Carte Blanc kind of an approval and that's not because we don't want to...it's just that the way the code is written...it's just not clear...that's my understanding I don't know...I'm not a lawyer but... Mr. Yoshimoto: So for the purposes of this opinion, this opinion will cover any bids in the future that Mr. Andrade would have with Environmental Management...would that be safe to say? That's my question to the Board...because if we establish that there is no conflict of interest regarding this particular bid...that's within the parameters of Environmental Management...Mr. Andrade is that what you would want the Board to... Mr. Andrade: Yes...that would be great...like you said the way that the code is written as if you need to show up for every project that I want to bid on as long as I'm a County employee. It may be ridiculous, but it needs to happen and that's the way it's written...I mean again with what you're saying as far as waste management...yes I would love to hear that I won't have to come back if I bid on another waste management project and maybe some other department I would have to get the decision...but I would agree with that. Mr. Adams: I would offer that...the ordinance says that the officer or employee has to obtain an opinion from the Board that there's no conflict of interest resulting from position with the County...right...and so that continues as long as there's no change or until there is a change in these variety of things including the financial interest or role in the business or undertaking with what the contract is concerned. Number one in there is that the nature, relationship is provided in full disclosure...so if there's a bid made...as long as that disclosures made and as long as there continues to be an opinion that's in compliance with the fact pattern that we have now...then I don't see that that...there's a change associated with that...that would be my view on this...so I would be supportive of the opinions saying that this has to do with bids associated with the Department of Environmental Management. Again we need to 11 make sure that there's an understanding that this has to do with that until there is a change in the fact pattern...if there's a change in the fact pattern...meaning there's a change in your situation either in the County or maybe you have a new position and all of a sudden its Department of Environmental Management...that's a change that changes all of this for example. Ms. Kahakalau: I'm good with that as well...so as long as it's for the Department of Environmental Management then we can say this ruling kind of covers that as long as you do full disclosure like you have done in the past and if anything does change...and it's a new situation basically then you would have to come back. Alright...do we have any further discussion? Then if not I call for the question...all favor say aye...any oppose? Motion it carried. Thank you Mr. Andrade. Mr. Andrade: Thank you board. Motion and Vote: Mr. Goodenow moved that there is no conflict. Ms. Kalele seconded the motion. All members voted aye. c. Petition No. 2016-16: Initial review of a petition alleging that County officers or employees are in violation of Section 2-83(a)(3) and 2-83(b) (Fair treatment) of the Hawai`i County Code due to the unfair treatment by the building department. Ms. Kahakalau: I think the response letter is in your packet. I do have two copies of a letter dated October 11 as well. Mr. Adams: I think that's for 17. Ms. Kahakalau: That's for 17...you're right. Okay. So do we have our petitioner here? Mr. Tucker: Yes. Ms. Kahakalau: Could you please come up sir. Again I would like to ask you if you would like to have a closed hearing. Mr. Tucker: No. I prefer an open hearing. Ms. Kahakalau: Okay. So could you please tell us your name and give us a statement please. 12 Mr. Tucker: Yes I'm happy to. May I ask a question about procedure before Chair? Now my petition was filed on September 19 and this is now October 11. I have not had the benefit of seeing a written responses from a...the respondent. Mr. Yoshimoto: So Madame Chair as a procedural matter...all documents that are received by the Board are confidential until it's presented in an open hearing so today is that open hearing. So what I recommend to the Board is that the Board make a motion to receive the response letter dated September 27, 2016 received from the Department of Public Works...to accept and file that and make that part of the record and then at that point that response letter can be provided to the petitioner as well as a letter from Daniel Lee response which is undated, but received on October 6, 2016. 1 believe that should be in you packet as well Board members. No? Ms. Kahakalau: Do I hear a motion? Mr. Goodenow: So moved here Madame Chair. Mr. Robinson: Second. Ms. Kahakalau: Seconded. Alright any discussion in regards to that specific motion? Mr. Adams: I'll just ask one question. When is the appropriate time in this process...we have...we're receiving the petition and then we have testimony. At what point is it...we do this now...do we do this as part of the discussion. What's the normal course...normal part of the process where we're receiving the additional correspondence? Mr. Yoshimoto: In terms of receiving the correspondence...that needs to be again presented to the Board at an open hearing which is today...and therefore at that point then the other party in this case the petitioner can receive that copy. That's per our rules so I do recommend that we do that now. That way the petitioner can receive the response from the respondents. Mr. Adams: Hence forth as far as our normal part of our procedure we should be receiving any correspondence that is attached to the petition. Mr. Yoshimoto: Right...so you should have the response letter dated September 27, 2016 in your packet as well behind that is also the other response that was received on October 6 so it's...Board members if you could check and see. 13 Ms. Kahakalau: I have the first one...I have the first one, but I don't have the second that you're talking about J. Ms. Hirayama: I sent it to you via email. I got it after I sent out the packet. Ms. Goodenow: I would note that however that there would be nothing to prohibit the department in writing their response to have copied Mr. Tucker so he could had it beforehand. Mr. Yoshimoto: That would be accurate if they knew who the petitioner was. Per our rules...because the documents are confidential until presented to the Board...names and confidential information are redacted prior to... Mr. Goodenow: So even if they had wanted to...they couldn't until today the way our rules are written. Mr. Yoshimoto: Right...it's...yes. Mr. Goodenow: Well that should be looked at in the future... Mr. Tucker: May I comment? Ms. Kahakalau: Go ahead...Sure...that's fine. Mr. Tucker: As I proceeded with this petition...I was...I assumed the respondents would have a copy of the complaint and they have...they apparently have received that copy which according to your confidentiality clause should be protected information...but I don't object to them knowing...we should all walk into this hearing prepared to save you time and me time...but in due process I would have expected to receive a copy of the response so that I could have the opportunity to see what legal underpinnings they may be relying on...have some time to research and present myself on that matter. Now I'm not here to say let's shred everything I'm prepared to proceed...however...the confidentiality code 4.13 in the Ethics Code doesn't mention anything about redacting anything. That would have been fine if they wanted to redact to the who the response was you know coming back to me. I mean it gets a little silly can and I understand... but nevertheless after some weeks of preparation on the building department...I'm sitting here with settle seconds to try to see what the response is...but I'll go ahead with my opening statement if you'll allow me. 14 Ms. Kahakalau: I'm sorry, but we need to vote first...we didn't finish procedure...just a moment please. Alright so all in favor of our motion? Mr. Adams: Can I have the motion read again. Mr. Goodenow: The motion was to receive these two documents...to file them and by doing that we're releasing them to the petitioner. Mr. Yoshimoto: So those two documents are dated September 27, 2016 and received October 11, 2016. Ms. Kahakalau: Alright any further questions? All in favor of that motion say aye...any oppose? Alright...Thank you. Go ahead Mr. Tucker. Motion and Vote: Mr. Goodenow moved to accept receipt of the two documents. Mr. Robinson seconded the motion. All members voted aye. Mr. Tucker: I have two complaints here today based on the County of Hawai`i building department. Based on the building department becoming from me and others the consistent source of bad information...that building officials have failed to meet their obligations under the Ethics Code to provide fair and impartial services to myself and other County residents and to avoid undertaking unwarranted privileges upon themselves. Incorrect and misleading information has a great negative effect on local business and personal lives. The building department in my opinion is acting to suppress economic activity in this County. Architects are telling me their shutting down their offices. Contractors and their crews are out of work. Some are moving away because the inefficiency of getting permits and being able to schedule their business affairs. In one of my cases, the department is illegally requiring permits for small projects specifically exempted from the permit process by act of County Council. While I understand the Ethics Board job is not to decide technical issues, it is my purpose today to examine the ethical issues of County officials denying equal and partial service to County residents and taking upon themselves the role of the County Council in determining codes under which all our citizens operate. To a degree...the two petitions today have some overlap and perhaps if Mr. Lee is here we can deal with him jointly and get him...allow him to get back to his office...I'm willing to consider that...Mr. Warren Lee I mean. Now this is slightly off topic...well I'll let that go for now. The...has the Board members had an opportunity to read my complaint? Mr. Goodenow: Yes. 15 Mr. Tucker: Have you had an opportunity to review the attached documents and exhibits? Mr. Goodenow: Yes. Ms. Kahakalau: Yes. Mr. Tucker: So procedurally what would we do next? Shall I...answer questions? Mr. Adams: So we're in charge of the procedure right... Mr. Tucker: Right. Mr. Adams: So we'll let you know...right... Mr. Tucker: Right. Mr. Adams: So are you done with your testimony? Mr. Tucker: My testimony? Well essentially how this 2016 launched forward...started out with a conversation I had with the building department...Mr. Erickson and in that conversation on the phone I was complaining about taking ten months to get a permit and that's just a tortuous process...it was taking twice as long to get a permit as it takes to build a house. And...Mr. Erickson was you know pretty alarmed at what I told him and actually denied well that doesn't go on...that doesn't happen here. So I told him to look up the file. He got on the computer and he looked it up and he said to me this is exactly what's not supposed to happen. And...to his credit Mr. Erickson started looking through it and he went the plan checker who's Daniel Lee...and basically told him either sign this permit or I will and the permit got signed. It then proceeded to get lost for another three weeks...but...it was eventually issued to my customer and I was the draftsman for this project...and going from ten to eleven months to get a permit is an experience that I don't think serves our County well...It's just a huge economic suppression on our economy to keep things in abeyance for so long...but part of it...my basis for...one basis of my complaint on sixteen is that...in the normal procedure and perhaps Mr. Erickson can confirm this if you'd like to ask. When you submit a set of plans to plan check...it goes to planning department...they approve it...goes to the building department for review...and then they issue a letter of corrections...and we get that letter of corrections...then we respond to it...make changes in our plans and resubmit. Now in the process we encountered on this job we 16 ultimately having five letters of corrections and the inefficiency and ineptitude of a plan checker looking at a set of plans and coming up with here's one thing I want corrected...you send it out...I want engineering...we have to find an engineer. That can take weeks cause they're all very, very, very, very busy. Then we have to get on a schedule...then we have a thousand...two thousand dollars of expenses...then we have to make corrections in plans...reprint...resubmit. Now going thru that once is fine...I have no...I'm not here to complain about the codes especially...I'm here to complain about the process and then when you get another plan check back saying well we want more engineering. Just vaguely saying engineering is not a very efficient answer to anybody submitting a plan. There's load engineering, lateral engineering all kinds of engineering goes on...so they're not saying what kind of engineering...give us engineering. And then two and half months later you find out oh that's not the engineering we want...we want something else. Then a month or so goes by and then they oh we need some other stuff. I mean this just went on and on and on...it's cost my client thousands and thousands of dollars...when you're renting a home to shelter your family while you're waiting to build a house...the impact is substantial and for many customers can be the difference between being able to build a home or not...because they figure their budgets very tightly. Now the second aspect that I will be bringing evidence in involves impartiality on the part of Daniel Lee who's the plan checker...and in that regard I'd like to at some appropriate point...question his intentions as an engineer as he applies the code equally and impartially and fairly to all County residents. Now when these issues came to ahead after some time and consideration...I did what I thought was the proper service of sending a...Warren Lee...which you have a copy of my letter to him indicating the nature of my complaints and my intentions to file an ethics complaint. It was my simple expectation as a taxpayer in this County...that being a...made aware of complaints pending against his departments that....I'm sorry about the phone I thought I turned it off..the...the head of the public safety public works department contacted me to see if we could resolve this without having to take up your time. Now that letter was delivered on August 22...to this date I have not received response from one...from the Department of Public Works. And I'm of the opinion that there's a responsibility under the Ethics Code to be responsive...to matters brought to their attention. Now perhaps it's not in the duties of Mr. Warren Lee to do this...perhaps he delegates it to somebody else I don't know who that might be...but whoever he may or may not have delegated it to...didn't respond. And on the subject of trying to get a copy of the written responses 17 here...I contacted the building department and asked them if I could have a copy...and I got no response. Now this lack of responsiveness...does not serve this process...does not serve your process...we're taking up a lot of your time here perhaps only because...County department heads and County employees were completed unresponsive to what I feel are some legitimate complaints and with that I'll end my statement. Ms. Kahakalau: Thank you Mr. Tucker. Mr. Robinson: You talked about a letter you wrote to Warren Lee. Mr. Tucker: Correct. Mr. Robinson: I don't see that from what I have. Mr. Adams: If I may...we are...it's important to understand that we're dealing with two separate petitions. Mr. Tucker: Correct. Mr. Adams: 2016-16 and 2016-17. Mr. Tucker: The letter to Warren Lee is in seventeen. Mr. Adams: That's right. So we're dealing with 2016-16 at the moment. Mr. Robinson: Right...that's right. Ms. Kahakalau: Counsel? Mr. Yoshimoto: So board members we have yet to hear from the respondent...this is the initial hearing so what should be explained to the parties is that the board can do one of several things...since this is an initial hearing...the board can of course hear the initial statements and can refer this of another hearing...for an informal hearing or it can schedule a formal hearing or it can other things such as dismiss the petition. So the board is free to of course to ask questions with the petitioner, but we shall also hear from the respondent as well. Mr. Adams: Did Mr. Robinson have more questions? Mr. Robinson: No. I'm good...thank you. Mr. Adams: In the...in the document that you provided your petition...specifically 2016-16...you address the section as 2- 18 83(a)(3)...all persons shall be treated in a courteous, fair and impartial manner. Giving us then the dictionary definitions for fair and impartial. As I look as this and then I reviewed the plan review comments letters that were included...and then I looked at the notes with Mr. Daniel Lee...I was trying to find out where in here...where in any of those documents was anything that talked to unfair and not being impartial...where was that included in the documents? Mr. Tucker: The process itself is intended to supply one letter of corrections and one response as an expeditious treatment of all building permits. So by expanding it out to multiple letters and multiple request and by statements made to Mr. Lee in these two meetings that the notations are there along the lines of well you should be building with wood...we understand wood...we don't like this metal stuff...why are you doing this. That act actually was moving into what could be called restraint of trade where you're favoring one method of construction and one building material supplier over another. And...I'm not trying to sit here and argue about the intentions of the code as far as it's been adopted under 2006 IBC...but the process itself just went off the rails and I don't think that our treatment under the code and procedures of the building department was equal and impartial to the intended in general procedure. Mr. Adams: When you say equal and...it was not equal and impartial...are you assuming fair and impartial? Mr. Tucker: Right. Mr. Adams: That's usually relative to other situations...right...in other words not...what are you...what are you making the relative nature of this procedure to? To some specific ideal? Mr. Tucker: I guess specifically what I would say if a plan checker should do a corrections letter...he should thoroughly go through the plan...make a thorough list of corrections...submit it for...back to the applicant and then take in the response. That process was abandoned and it was done piecemeal over the course of ten months. Now additional since then...while we have...I had the burden of meeting the County's burden of..being required engineering which is an usual moment over the past fifty years for single family single story home and we met that burden by producing engineering as requested. I have come across evidence of which I'd like to submit if may that would demonstrate that Mr. Lee himself as a structural engineer working for the County...was 19 producing engineering for free...for some clients. Now I and many others have to walk out the door, find an engineer, get on the schedule and spend thousands of dollars and resubmit over a course of months...but Mr. Lee's been producing on occasion at least engineering from his desk for the benefit of applicants that aren't me or my clients. Now that's a benefit and privilege and he uses the word privilege that he's applying to people...arbitrarily... or on some basis which I would have to call bias. He has a bias in favor of some...a bias against others and I'd like to submit this if I may. Mr. Adams: Thank you. Madame Chair those were my questions. Thank you. Ms. Kahakalau: Thank Mr. Adams. Do have any further questions for Mr. Tucker? Go ahead. Mr. Robinson: You said earlier something about only one letter of response to engineering plans...I mean...are you saying that you would only need one letter or that there should only be one? Mr. Tucker: For the past twenty-three years...all of my submissions and all of those all of my compatriots in the business...you submit your plans...it goes to plan review...you get a letter back with a detailed list of items that they want corrections of You fulfil those corrections and you resubmit them and that would be...it that would should be the end of it. However, the letter of correction from Mr. Lee...the first letter requesting engineering just said well we don't understand the SIP building material or we don't know SIP building materials...we just know engineering. Well...we provided engineering...that you engineering is kind of a vague term actually you know...it was unspecific and vague and that's something that I have a lack of appreciation for is for somebody trying to proceed with my clients plans an expeditious manner...and then when we submitted that engineering from the factory engineers then they came back a month or so later and they wanted more engineering of a different type and other corrections...and then we went thru another whole process over a few months meeting those expectations and providing that information. In the course of this...Mr. Daniel Lee required...wanted some data and we ended up providing him with a five hundred page binder of technical data and much of this technical data was already on his bookshelf involved loan and spend charts for steel which any engineer should be able to deal with. Now I'm not objecting to the request for engineering, but I am objecting to the fact that in our process of trying to produce 20 engineering to his expectations...he's providing engineering for free to other clients...other applicants. Mr. Robinson: So you're saying twenty-three years you've been dealing with the County of Hawai`i? Mr. Tucker: Right. Mr. Robinson: On engineering plans and this is the first time you've had all these letters coming back to you asking for additional information which I read in your... Mr. Tucker: It's the first time we've had expectations of engineering period. Mr. Robinson: Okay. Mr. Tucker: But that's fine. Mr. Robinson: Is it...you think it could be due to the fact that you submitted plans with a new building product that was not in use? Is that what I understood? Mr. Tucker: No...well it's a building product that's been in use for twenty years. Mr. Robinson: Oh so it has been in use...so you're not submitting plans for something unique or different or.... Mr. Tucker: No...we did our first building with these materials in the year two thousand. Mr. Robinson: Okay. Mr. Tucker: Bringing new building technology into a jurisdiction is something that in the trade is known as pioneering...you come into a department...you have some new technology you want to bring forth and usually you have to go thru some hoops you know to demonstrate to the building department that this is well built and certified and appropriate stuff. Now I've pioneered maybe fifteen or twenty County jurisdictions in my life and in every jurisdiction where I've ever pioneered these materials from west coast to here...once we've pioneered the department and we've got a foot print especially a sizable foot print under our belt you know we're known quantity and we move forward. Now suddenly on this job...we're suddenly treated as though somebody you know came in off of the boat and you know what the hell is this and I was a 21 little surprised with that so now we gotta go back to pioneering again. So we supplied five hundred pages of technical data...we had the engineering calcs done and then we ask for more engineering and I'm...sorry to say but if a person is a professional engineer...as a builder which I've been for years...it should not matter to my professionalism if I'm building with wood...concrete block like a steel SIP panels you know or whatever...I'm a builder...I take what I got and I build. If I'm an engineer...I can't imagine sitting there and saying we don't understand steel. Mr. Robinson: I understand...yeah I just wanted to be clear about that. So was there any point in these...all these different letters that you submitted...are they responses that you submitted that you're actually sat down with Mr. Lee and were able to go thru these in a discussion. Mr. Tucker: The last two pages of hand written or typed up notes from two different meetings occurred because we had to get off the page of sending letters to take months and go back and forth...try to get to the source of the questions and ask specifically just what do you want. Now...Bill the client...Mr. Kerr is here who was in those meetings with Daniel Lee and has told me he's sitting there going thru a long lengthy meeting and often sitting there going just tell me what you want. Stop talking about the birds and woods...stop talking about how your house is not as well insulated as you wish it might be just tell me what you want. Mr. Robinson: Okay. Thank you. Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: Just if you could clarify for us on the letter you just passed out...the email dated March 17. It's addressed to Mr. Bona. Mr. Tucker: Correct. Mr. Goodenow: Could you just give us what this email is...to who is Mr. Bona and... Mr. Tucker: Mr. Bona is another designer...architect...he does a lot of work for Artist Building Materials...he's been in a similar round of frustration...in fact I've talked to a number of architects that are more livid than I have been...and he voluntarily provided me with some of this correspondence he's had and I'd like to point out on page one of this letter...item three where I've underlined it and I mention that...where Mr. Daniel Lee says to Mr. Bona...you had 22 the privilege not the right to obtain unique help from me since I performed independent calculations on several of your projects. From time to time, I perform engineering calculations on projects as the needs demand. Now several projects...I mean we're talking about tens of thousands of dollars' worth of engineering production here. On County dime... Mr. Adams: If I may...Madame Chair I have difficulty with this...engaging in any discussion with this evidence. This is being provided not as a part of the initial petition... the individual that is being addressed here...the respondent here has not had the opportunity to respond to it. It's not that I don't want to consider it...but this...I think that it's not the place...this particular consideration the petition to consider it and so I would just ask the Chair to cease more conversation...it's about this particular correspondence. Ms. Kahakalau: I agree with Mr. Adams so at this point and time we won't be considering what you just passed out. We do have the other documents that we have received... Mr. Tucker: Could I speak to that before you vote on the motion? Ms. Kahakalau: I don't think we need to vote on the motion. You know you gave us a piece of paper and it's our prerogative correct me if I'm wrong to accept it as part of the...of this current discussion. Mr. Yoshimoto: Right you're correct and Mr. Adams is correct. The Board has not received as evidence yet so it's not...so we're going the process...it doesn't mean that's the Board's decision yet...we just still at the initial stages of the process so... Ms. Kahakalau: Mr. Goodenow? Mr. Goodenow: Well I mean you're just bringing this up to show that your case is being handled differently from other cases...that's the intent of producing this? Mr. Tucker: It's not meant to be fair and impartial to me. Mr. Goodenow: Well with that said I think we could move on at this time to...l don't know if you want the respondent to speak at time... Ms. Kahakalau: Yes I would like to have...I'm not too sure if Mr. Daniel Lee and Warren Lee are here or...who's speaking...okay. Could you please come to the front please and introduce yourselves. 23 Mr. Robinson: Neil Erickson.... Mr. Adams: We're not on seventeen yet unless we're gonna decide to take them together. Mr. Robinson: Okay. Mr. Adams: I'm just making that point...I'm saying no I'm just...not my prerogative to say no It's just we've not joined these together. Mr. Tucker: Could I speak to Mr. Adams point? Ms. Kahakalau: No at this point we're asking the respondents to come up please and give them an opportunity... Mr. Tucker: Shall I retire? Ms. Kahakalau: Only because there's two of them and we have only two chairs there. Mr. Tucker: Okay. Ms. Kahakalau: Thank you. Mr. Tucker: I get to read this for the first time. Ms. Kahakalau: Aloha...if you both could introduce yourselves and then speak to...we're speaking to Petition No. 2016-16 at this point. Mr. Lee: Yes I'm Daniel Lee and I'm a structural engineer with the County. Mr. Gonzalez: Good morning. Brandon Gonzalez, Deputy Director, Department of Public Works here on behalf of the Department of Public Works and the Director. Ms. Kahakalau: You're free to make any statement at this point and time. Mr. Lee: I just want to make sure that you have received and have had a chance to read my response. Ms. Kahakalau: That's the one dated September 27? Mr. Lee: Unfortunately it's not dated...but it has re and a petition number. Ms. Kahakalau: 2016-16? 24 Mr. Lee: Yes. Ms. Kahakalau: Yes. We do have that as well. Mr. Lee: Have you had a chance to read it? Ms. Kahakalau: Yes. We got those ahead of time. Thank you. Mr. Lee: First of all thank you so much for giving me this opportunity to be here and I'm just so thankful for Mayor Kenoi who hired me as the County Structural Engineer...and I understand that maybe it's been decades since the County has hired...this is a new position that has been opened by the Mayor...and I'm so thankful that I'm able to be a part of this team and I realize that having a structural engineer on board is not a very welcomed...you know there will be bumps along the way. So with that being said in regards to this case...my understanding is he...Mr. Rob Tucker...have we met before? Mr. Tucker: No. Mr. Adams: If we could keep the testimony to the Board please. Mr. Lee: Okay sure. Mr. Adams: Thank you. Mr. Lee: So there's a number of...there's a number of inaccuracies in terms of the statement that was made and hopefully I can address some of those inaccuracies...but I understand putting myself in Rob's shoes...I understand that there is a lot of frustrations because it took ten months for him to finally get a building permit. I realize that a person submits their plans...it's kind of a black box...maybe not so much for Rob...but I know for many people it's a black box...and really the person that is being...that person that the applicant is able to meet a lot of times the feeling is that you're to blame for the ten months...but I just want to let you know that in that response I've highlighted a chronology that actually took place. So the plans did come in on October 2 of last year. The plans came to my desk before plans come to me it goes thru the Department of Planning, Department of Engineering...it goes to the Board of Health...and then it goes to the...Public Works Building Division. Under the building division, there's two reviews...a life safety review and a structural review. I got wind of this project on March 1, 2016. That's when the plans arrived on our shelf and as I am able...you know this is not the only job that...only project that I'm working on...but there are many 25 others...there's a whole stack of projects depending on the busyness that we happen to be in. So...my understanding is that the plans from this...from the research I have done...the plans arrived on that shelf on March 1. I completed my review...I completed my review one month later on April I. Now I just want to highlight to you that when we look at these dates we think oh one month has gone by...how is it that it took one month for Daniel Lee to perform his reviews...but in that response I made note that I was out of town from March 4 through March 10. That particular month by the way...the month of March is a very busy time because of the Merrie Monarch Festival and during that time...on the particular week of March 21...our plans examining manager Neil Erickson was on vacation. So because I'm the next in line...I was asked to be on temporary assignment for his position. Additionally, the other plan reviewer...keep in mind in the Hilo office...there are three potential plan reviewers...myself, Jessica and Neil Erickson. During that time, I was quite pre- occupied with this Merrie Monarch Festival...imagine there was some issues with the Naniloa Hotel...I won't get into that detail...but basically it was a rush to get rooms approved so that people could actually be there...but anyway I was very much pre- occupied and could not spend time on doing any of my other typical duties of plan review...from three twenty-one thru three twenty-four. Also during that time, the month of March I had been reviewing forty-seven other projects. So I just want to highlight that yes when we look at the calendar it shows the plans came into my responsibility from March 1 and I completed my plan review in April 1...but in actuality...taking out...excluding the weekends...the County holiday...vacation that when I was out of town and the temporary assignment for Neil Erickson. Actually there was only twelve working days that I had an opportunity to work on this project. Now keep in mind that this is not the only project that I'm working on. As I've shown there... I also have to review forty-seven other projects. On April 8...that's when I met for the first time Mr. William Kerr. I have never had any contact with Rob. So I'm not sure how he got his information...but I have never met him. So my understanding is...he's getting his data...his information by hearsay if that counts for anything...but anyway on April 8 after reviewing his plans...completing his review on April 1. I met with Mr. William Ken on April 8 and I spent ninety minutes with him as best as I could to explain to him what was needed...cause basically when a person submits his plans...plans go thru the process very quickly if the plan reviewer doesn't have to connect the dots. I shouldn't have to connect the dots when plans are submitted...because I had to connect the dots for Mr. Ken that's why some time was taken. Actually I have to 26 state at this point that after our meeting on four eight...plans were informally handed over to Mr. Ken. It wasn't officially given to him...plans were unofficially given to Mr. Kerr. At that time, I told him that this particular product that he's using is not commonly used because it was a proprietary item and yes I've been with the County only for about a year...but I have thirty years of experience as a structural engineer and I have worked for other jurisdictions in Southern California...all total as a plan reviewer I've been doing this for about seventeen years. It's not the first time I've seen different products...but because this particular product is not commonly seen in residential construction here in Hilo...it was my obligation for the safety and welfare of the people who'll be in that home to...for me to do my job...and my job is basically to check plans to make sure that it is safe...it is safe and that the code is being followed. So anyways I met with Mr. Kerr and there were a number of issues on his plans which I made known to him and he took the plans back...then I met with Mr. Kerr again over the counter. He was in possession of these plans from April 8 and we met again on May 3. At this point I want make it clear that the plans did not...were not accompanied by the calculations that were necessary for this type of submittal. Although this is a one story building...I don't get excited about a one story building...I want to approve a one story building. The building was unique in the sense that it involved structural steel...structural steel. Now...Rob made it clear and I agree with him that typically if it involves just wood...you can look at a table in our code and you can get the proper size within reason...but if you're talking about structural steel. That's a whole different ball game and there's no tables that are readily accessible...sure they're out there...but that's not part of the code and as a building department...it's not our job to do design...it's not our job. Unique occasions or unusual occasions depending on the need and the circumstance I may actually do some calculations...but because there were no calculations submitted for the steel beams...now keep in mind this whole structure one story building...every single post and every single beam was a steel beam. Did not have any calculations whatsoever and I said to him we need to have calculations. So when we met the next time...on April 3...excuse me on May 3...again we went over some items and at that time...still Mr. Kerr could not produce the calculations that were requested of him. Now keep in mind these calculations were requested in my first plan review that I performed. To conclude what I'm saying...on July 7`h...I approved the plans because I in fact as I've shown...as I've written in that response...I just felt very burdened from Mr. Kerr...I felt very burdened and you know someone coming to the islands and having this kind of 27 bad experience. I actually performed the calculations for him. I performed very rarely calculations for people because that's not my job and it's just out right foolish for me to be doing calculations...but I tell you this island doesn't have enough licensed professionals who are qualified to do calculations especially for steel columns and steel beams...and knowing that it will be incredible burdensome for him and just...I just felt very burden about his situation so I just opted to do it myself..I did for some of his major beams and columns and that is how I was able to approve his plans on July 7°i. You know I'm...it's really difficult for me to swallow...you know there have been times as I said where for similar reasons I have done calculations for individuals and only basically to get stabbed and it just really unfortunate that this happens. The bottom line is I approved his plans. The bottom line is I did not personally deal with Mr. Rob Tucker...and in terms of being inept...keep in mind that the total time...practical time that I can provide concrete evidence that I had spent...I basically had twelve days to review his plans. After that point...the plans were in Mr. Kerr's hands for two months. Plans were in his hands for two months and when he submitted the plans within six working days...six days...I approved his plans. So that ten months...I understand...Mr. Rob Tucker doesn't quite understand the full process and this black box is a black box to him...but that's the charges are being railed against me for being inept. That's all I have to say...Thank you for your time. Ms. Kahakalau: Thank you Mr. Lee. Do we have any questions for Mr. Lee? Mr. Adams: I'd like to hear from Mr. Gonzalez first if that's okay. Ms. Kahakalau: Yes. Please go ahead sir. Mr. Gonzalez: Good morning...thank you for the opportunity. Mr. Warren Lee is not available because he is on leave of absence off island. I'm here on his behalf and for the Department of Public Works. In the Director's absence...the Deputy Director assumes the responsibilities and duties. To begin with...up until this morning when this hearing began...the Department of Public Works...Mr. Daniel Lee...myself...even Mr. Erickson for 2016-17 did not know who the petitioner was. I think you can get that sense from the response that drafted by the department and by Mr. Daniel Lee in that because it was redacted. With that being said...I don't recall the petitioner actually giving his name on the record this morning when asked...but we can all agree now that it's Mr. Rob Tucker. So Mr. Tucker brings to this body...very good questions. It's our position though that a lot of the questions and a lot of the issues at 28 the heart of this deals with the building code and how it's applied and its process with...there's a disagreement with how the building codes is applied...how does that disagreement get resolved? We've touched upon it on the technical requirements and you got to keep in mind that the building code as we say it...is more than just Hawaii County Code, Chapter 5. It's a myriads of laws and regulations and technical requirements that can be found in our County Code...in a document that the County has adopted in part with amendments as of 2006 International Building Code. By reference we also apply the international residential code for residential construction. There's a plumbing code...there's a national electrical code...there's a national fire protection code...in addition to State laws that may be applicable for land use and building. So if you look at this...if you give me a moment...from a bigger prospective. The process itself starts with...my I build to simply it. From a land use prospective in Hawaii...the first question and this is why the applications go to the planning department. Do you have the right approvals or are there special requirements for the land you're gonna build on before you even sink money into designing what you want to build. The first question the threshold question is may I build...am I in a special management area...am I in a coastal area...am I in a flood plain...right. Are there special considerations tied to the land that meet design...that restrict my design dreams. Okay. So when I look at the comment letters and ideally there would be one comment letter listing all the corrections necessary for an application...but we have to remember that the application for the building permit process is not just an approval from the building department. It is a multi-agency review that involves not only the County...but also the State of Hawaii. Okay...and that multi- agency review starts with the land use...May I build. After you get that cleared...then we get into this phase that I like to call...How may I build. It's not the County telling you how you have to build it. The applicant chooses the materials and the methods and what they want to build with. If it is an established method of construction...in our various building codes there are tables and charts that can be referred to with calculations and proof that a building will be safe. If an applicant chooses to use alternative materials and new method of construction and those accepted tables or calculations do not exist in our County...then we ask them to supply the calculations with their application. From our prospective...as our data base of tables and calculations that are acceptable to us grows...that's a benefit not only to the County...but to future applicants if the design professionals wish to share their calculations with other design professionals. It's like the library gets bigger if more approvals come through. So it's a 29 two...it's a partnership really and it's really hard to expect one side or the other to carry the full burden and I think the approach that our building division employees have taken is to be reasonable and consistent in the application of the various codes and reasonable to the applicants. Working with them to find solutions that can fit the method of construction and the design that they want. Now...the drawback here is...and this the rock in the hard place for the frontline workers is if the County worker were to say I can't do that for you or I'm not going to give you a name of somebody that can do the work for you. They can face a complaint for lack of service or lack of customer service even though we have got guidelines in place not to refer specific contractors or designers because that could be perceived as favoritism...right...or referring to specific individual. So every day the County employees especially for the building division are put in this position of balancing good customer service and maintaining a level of service that does not compromise or put them in situations where they can be cast in a negative light. So for this case and looking at the plan review comment letters...the first plan review comment letter was from the planning department saying the description of what you want to do is incomplete so we can't figure out if you can build. So that goes back to the applicant right from the beginning because it's a threshold matter...May I build on the land. That's the first step. After it passes the land review use and the engineering reviews for you know like grading plans or drainage plans if it's in a special district. Then it gets into the plan review for the technical building requirements. The materials...are the members strong enough...is there adequate shielding. So if you take a look at the second comment review letter...the comments were that calculations were required. Very broad very general...but the subsequent plan review letter gave more clarity and that's actually when Mr. Daniel Lee became involved in the process rather than just a general building plan reviewer...right. This is the first time that the County...in a long time...has had someone with the credentials and the CV as Mr. Daniel Lee. He has done structural plan review across the nation and we have been...the department has been criticized in the past for not having that type of expertise on hand to go and explain to the design professionals that the calculations don't seem to be supporting what is required. If you got to think of calculations as more than just math. I like to simplify is...it's the proof that whatever you're building with and building is gonna be safe. It will withstand whatever factors and variables we have here in Hawai`i whether its wind...whether its earthquake...whether it's poor soil. So when we get to that point...the training that the structural engineer go through...they learn when they get their engineering degree...statics...how forces 30 act on each other. They also learn how the different elements of different materials that are used in construction and if you combine different materials...how does that make things stronger or how does it make things weaker. Right. All of this is part of the process that our structural engineers go through...so it gets very technical and it involves math. So if you take a look at it from that process and what the record show...Mr. Daniel Lee in this case...if you decide to keep the case actually...stuck to what was a technical requirements in the code...because the materials for construction did not have established tables and calculations for their strengths in our County...we asked the applicant to provide those. When the applicant had trouble providing those...Mr. Lee...Daniel Lee sat with him at least twice to go over what was needed and actually work with him to come up with the calculations. And now the permit was issued...yes the permit could have been issued faster...but ideally for this system...if an application comes in with everything necessary...all the documents...all the drawings...all the calculations...the review is relatively fast. The review can be relatively fast...the approval can be relatively fast...but as you can see here from the paper documents with Mr. Kerr...there was just too many gaps of things that were needed. And once those questions and gaps were filled...the approval was able to go on. This isn't the only project that our building division had to go and review...besides dealing with special inspections or events...unplanned events that come up. There are other plans in the review process because everybody's applying everyday which is great. We are cognizant of the industry. We are cognizant of the design professionals' timeline to get the projects done...but we're also cognizant and we are also fair to the owner builders. That's another sector of our customer that come in and maybe only building their house one time...right...they don't do it as a profession...for a living and so each type of customer requires certain levels of service depending on the situation. And in looking at this...this case...I think if it comes down to an issue of the technical requirements and how the building division...the administration of the County...the administrative branch of the County...enforces and applies the laws. I think that it can either sent to the Board of Appeals for the technical requirements or if it goes further for formal hearing or informal hearing...that there was no violation of the Board of Ethics...because the legislative body for our County...the County Council adopts the laws. Our administrative branch enforces them and that is all Mr. Lee...Daniel Lee was doing in this case and then if there's a dispute...normally it would go to the judicial branch...right...over the enforcement and in this case if there is a dispute over the requirements whether calculations were 31 required...whether this building material is appropriate in the County etc. That is handled by the Board of Appeals which has special jurisdiction to officiate over disputes regarding decisions by the Department of Public Works director who is designated by the code in our County as the building official or the authority having jurisdiction and that power is delegated to the structural review and the plan reviewers and the building inspectors for various functions. So that is my statement for the Department of Public Works, Mr. Daniel Lee and Mr. Warren Lee. If you have any questions at this time we'll be available. Thank you. Ms. Kahakalau: Thank you. Do we have any questions? Mr. Adams: I would ask Mr. Lee. Thanks for being here. When you receive the reviews...receive the packets that need to be reviewed...how do you determine the priority of looking at them? Which ones do you look at first...first come first serve or is there a priority that you go through in determining the way that you look at them? Mr. Lee: Typically...I know that that particular time for some reason was a very busy time of the year. I'm not sure if it because specifically because of this Merrie Monarch thing but...to answer your question. On our shelf where the plans are stacked for the plan reviewers to review them...there's a certain order in which they are placed. So out of just fairness to people...we tackle ideally tackle the ones that are you know the oldest obviously. Mr. Adams: Okay. Do you have a process for when you decide to do engineering calculations for process or how do you make that determination of when it's appropriate to do that? Mr. Lee: When it's appropriate. Actually calculations are required for all projects. Mr. Adams: So let me make sure I miss-understand my question. When you do the calculations? Mr. Lee: When I do? Mr. Adams: Right. How do you make that determination that it's appropriate to do it? Mr. Lee: Well...I recall there's been times past where again...you know my experience is such where I've done a lot of these things...I've been consulting engineer for about fifteen years prior to my being a plan reviewer for sixteen...seventeen years...but...basically it's...you 32 know I don't think there's any particular formula to it. If I happen to have the time and I can...I don't like to see plans backing up...I don't like to have to see were people are going back and forth back and forth and quite frankly I see many times where because there's such a lack of structural engineers on this island...that...I'm kind of sympathetic of the need that some people need help...there's certain unique situations where I can help people...and that's why I help people when I can...but that is very rare that I can and so it's kind of a case by case objective situation you know. Mr. Adams: In your...in the process of approving the plans...your piece of that...is there any concern that you have that you're reviewing the calculations that others have done as a part of your approval process...but when you're doing the approval...when you're doing the calculations...are you having anybody else look at those as a part of that process or are you approving your own calculations as a part of that process. Mr. Lee: Yeah. Nobody else is qualified especially on this case to do steel and you know structural steel and structural steel columns and beams. No one in our office is qualified to do that. That's why actually I have to admit it's a very...it's not a good thing actually to be doing that so that's why I'm highlighting that Mr. Kerr received preferential and bias treatment in that regard because I actually helped him...I actually helped him. That's why today I'm sitting here wondering what's going on. Mr. Adams: Thanks Mr. Lee. Mr. Gonzalez...just to ask if 1 may about the...response letter that we received from the Department of Public Works dated September 27. You have a copy there with you? Mr. Gonzalez: Thank you...yes I do. Mr. Adams: So in the first paragraph...you make the comment that the Board of Appeals has exclusive jurisdiction to conduct hearings review or review the decisions of the planning director or director of public works regarding matters within their respective jurisdictions. Of course that comes from the Charter 6-9.2. When I go to the Charter...I don't see the term exclusive listed as a part of...regarding exclusive jurisdiction. It's clear that the Board of Appeals is responsible for hearing and determining appeals for final decisions are the planning director or director of public works regarding matters within prospective jurisdictions and conducting hearings in accordance with Chapter 91 of the HRS and the Charter and they are a part of the planning department for 33 administrative purposes etc. Of course would you agree that the Board of Ethics of the County has responsibility for matters that may be part of the chapter that we have responsibility for Chapter 15 when it comes to ethical procedures within the County? That was actually a question...would you agree with that? Mr. Gonzalez: So you're referring to Chapter 15 of the Hawai`i County Code. Mr. Adams: Yeah. Mr. Gonzalez: I believe that I agree with you that the Board of Ethics has its areas of jurisdiction... I think what is the blurred line is where that jurisdiction may overlap with other Boards and Commissions especially if it involves disagreements over...certain technical requirements and application of the laws regarding those requirements. Mr. Adams: That was my question. Thanks. Ms. Kahakalau: Okay. Do we have any other questions? Mr. Goodenow: I don't have a question, but at this time...the email that was submitted by Mr. Tucker...I mean he's given it to us...I guess I have to move that we accept it and file it so they can get a copy of it. I don't think it really is relevant...but I think it is offered to show that there's some extra engineering done on projects so at this point I think we should just file it then give it to Mr. Lee and as a procedural matter. So I will so move. Mr. Adams: Second. Ms. Kahakalau: Okay we have a motion and a second. We have any discussion in regards to that matter? Okay all in favor say aye. Any oppose? Motion and Vote: Mr. Goodenow moved to accept and file email received from Mr. Tucker. Mr. Adams seconded the motion. All members voted aye. Ms. Kahakalau: So we are putting that into the record...that's the email basically. Mr. Robinson: Madame Chair could I ask Mr. Lee a question? Ms. Kahakalau: Go ahead. Mr. Robinson: Good morning Mr. Lee. Mr. Lee: Good morning. 34 Mr. Robinson: Thanks for being here. My mother was an electrical engineer so I grew up with plan specifications all my life. I kind of understand but...do we have many structural engineers on the island of Hawai`i? Mr. Lee: We don't. Mr. Robinson: So when you send these items back with a request for calculations regarding the structural stability of the steel that's being specified...chances are you'd have a hard time finding somebody on the island of Hawai`i to do those calculations for you. Mr. Lee: We are available...and we're just backed up a bit... Ms. Kahakalau: Mr. Lee could you please turn on your microphone. Thank you. Mr. Lee: Just to back up...on the other side of the island...on the west side...there's vast expansions of land and there's you know very big projects...eight ten million dollar residential houses...single story and exactly similar type of construction...little heavier members but structural steel columns and roofs and all of them without exception are being designed by a licensed structural engineer. Structural engineers are available it's just that because of the cost...I think the main issue on this matter is in relation to time and money. It's in the time frame that I know you know Mr. Kerr had waited long enough and plans were in his hands for a while and realizing that it'll be very burdensome financially burdensome to him knowing that getting a structural engineer who probably doesn't want to get his hands involved in something small...factoring that all into account...that's reality but they are here but very few as compared with Oahu....as compared to Oahu. Mr. Robinson: I live in West Hawai`i and I'm very familiar with the homes that you're speaking about and I just I can't think of a structural engineer in West Hawai`i I think not that I'm aware of...but I knew a lot of those are designed by off island firms and yeah in many cases...mainland firms...mainland based firms. So they would have their own structural engineers doing the designs...but in West Hawai`i I mean East Hawai`i where this project is...are there any structural engineers in East Hawai`i that practice? Mr. Lee: Yes there are. Mr. Robinson: Okay. So they could've gone to that person...please review this...provide the calculations and stamp the plans. 35 Mr. Lee: Yes. Mr. Robinson: Okay. Thank you. Ms. Kahakalau: Do we have any further questions? Mr. Goodenow: Mr. Gonzalez wanted to add a comment. Mr. Gonzalez: Thank you. In response to Mr. Robinson' question...I'd like to point out that in the Department of Public Works we have several structural engineers on staff. Mr. Daniel Lee is one. Our Deputy Building Division Chief Jai Ho Cheng is also a structural engineer. Our director Warren Lee also has a structural engineer license. I have two other engineers in our projects section dealing with bridge and road construction that also have structural engineer training and license. So they are here and I believe there was a question earlier about whether or not there was anybody on staff that could review the determinations of Mr. Daniel Lee. If there are issues and this has come up...the building program manager Mr. Neil Erickson supervised the review. The building chief...Deputy Building Chief and even the Director and myself...have the ability to check and vet the conclusion and the work of any of the employees within the division including Mr. Daniel Lee. So we have that expertise on hand...may not be for residential construction...but they have familiarity with structural engineering principles. So we have that in the County...luckily. Thank you. Mr. Adams: If I may...just to follow up. May I follow up? Do you do that as...identifying all those folks as structural engineers' thank you. Do you have a normal procedure for any those folks reviewing and taking the approval...making the approval of those plans...that normally would fall underneath Mr. Lee's purview or in that section's purview when he in fact has involved in conducting the calculations for you know the person providing the packet...whoever that person's called. Is that... is there a normal process there or is it just...when does that happen? Mr. Gonzalez: The circumstances would require it I think. On the one hand...most times...we're not in the business of designing for the public. Our role is to check...that puts us back to my point earlier in a very difficult place not me...but the people in the front line that have to answer to the person at the counter or on the phone when they ask why can't you help me...you're not helping me...you know...that is not our primary responsibility. I know of situations where there's been disagreements over the methodology 36 applied and at that point a group is convened consisting of the proper subject matter experts to see whether or not we are being unreasonable in our application of the code requirements...That's our process and usually that usually comes in before or when someone goes to the Board of Appeals to see if they should get...they can get variance or if the director's being unreasonable in the application of the requirements. So that's the process that exist for us and if we are unable to resolve it at that level between the applicant and the department...we make our case to the Board of Appeals. Thank you. Mr. Adams: Just to follow...when you are identifying as a part of the response to Mr. Robinson's questions about structural engineers...when you're identifying all those folks that have those credentials that are part of the County. I just want to clarify...you weren't saying that those folks were then available to private citizens in that regard because they're County employees right? Mr. Gonzalez: Thank you for that clarification. Yes, I'm not saying that they are available...I just wanted to illustrate that there are structural engineers on the island. Thank you. Mr. Goodenow: At this time I would like to move to dismiss the petition...and I can give my comments after...but just start the discussion...I would like to move to dismiss. Mr. Robinson: Madame Chair I'd like to second that motion as well. Ms. Kahakalau: Alright...then we'll discuss the matter further now that... Mr. Goodenow: So I made motion...I mean Mr....on the basis that the section of the code in question is identified in the petition is limited to 2-83. Now I can understand you know there's questions of whether someone's inept or whether the department is doing things properly or whether or not the calculations are right or wrong. Those are for others not us...we are really limited and I haven't seen any evidence brought forward regarding a lack of courtesy...a lack of fairness. If anything...it seems that maybe the department gave a little extra benefit right...! mean if anything you'd say the impartiality came cause you know...they kind of helped out by providing the calculations. So I really appreciate Mr. Tucker...I mean...all of the public...this is been a big issue in our County. The efficiency of getting building permits and so I do appreciate it...I don't want to say that that's not an important issue...but really we're here as to 2-83 and I haven't seen anything to indicate that there was violation. 37 Mr. Tucker: (inaudible) Ms. Kahakalau: Sir this is discuss at this point. Mr. Goodenow: I'd be willing to let him comment if he wants to make a comment, but this is a discussion. Ms. Kahakalau: We'll continue with our discussion, then we can make that determination. Mr. Adams? Mr. Adams: Is there...just a question for Vice-Chair who made the motion. Is there a rational...is it on the substance of the petition that you are making a motion to dismiss? Mr. Goodenow: Yes. Mr. Adams: Okay thanks. Mr. Goodenow: Strictly based on the petition. Mr. Adams: Right and I just want to highlight that it's not because of a lack of jurisdiction that the motion is being made because I would disagree with that. I think that we do have the jurisdiction to consider issues that are within our jurisdiction and that has been brought up as part of the petition...and so I would have if it had come up and it did not...but if it had come up I would have not agreed with the motion to dismiss for lack of jurisdiction in this situation. I think I would also would if may...I do have a question for Mr. Tucker but I don't want...if we're still in the middle of discussion I'm not...I'm ready for that discussion to continue but I do have a question for Mr. Tucker when it's appropriate. Ms. Kahakalau: Okay that's perfect fine. Mr. Adams: If I could ask Mr. Tucker... Mr. Tucker: Thank you sir. Mr. Adams: If you could for the purposes for the record restate your name please. Mr. Tucker: Robert Tucker. Mr. Adams: Thank you. In this petition...we talked about the petition including the information associated with your petition that you prepared and then the plan review comments letter that were 38 associated with Mr. Kerr as the owner and then the comments dealing with the notes that occurred in conversation with Mr. Lee on eighth April three May and four May as a part of the petition as well...and now that we've included...we're also including I guess the email from Mr. Lee to Mr. Bona that was dated three seventeen two thousand sixteen. Your relationship with Mr. Ken? Mr. Tucker: I was hired to draft his plans for him under the supervision of an architect. Mr. Adams: Okay. I miss understood when the...I had the impression and I clearly I missed understood. The notes that occurred in the meetings that were held with Mr. Lee...were you part of that? Those meetings? Mr. Tucker: No...I was not a party as to the application...Mr. Ken himself was the applicant and as such the processing of the plans through the department is on the applicant. Mr. Adams: Okay. So those meetings were held with Mr. Ken and Mr. Lee? Mr. Tucker: Mr. Ken is here. Mr. Adams: Okay. According to...just so we're clear as I understand our code...the presentation of a petition can be done by...in 2-86(b) any person or the Board itself my petition the Board for an informal advisory opinion on an alleged violation by an officer or employee. It doesn't require that it be done by someone who has been harmed...it can be done by any person...and so in this case clearly Mr. Tucker's that person. I think it's also important to recognize that in section 2-91.3 which is our lobbyist registration...it does talk about lobbying and lobbyist and it provides a definition here. And...I would just identify this for future consideration that the lobbyist definition...I guess...let me rephrase. Counsel if I could ask you about this...when I look at the definition for lobbyist...any individual engaged for pay or other considerations...spending more than five hours in a month or $275 in a six-month period for the purpose of attempting to influence legislative or administrative action by communicating or urging others to communicate with public officials. In the past...has someone who has represented somebody in front of this Board...for a fee being considered a lobbyist in that definition...do you know? Mr. Yoshimoto: Not to my knowledge...no. 39 Mr. Adams: Okay...so.... Mr. Yoshimoto: It doesn't mean it hasn't happened but not to my knowledge. Mr. Adams: Okay. I understand. Okay...so the idea that you're representing somebody...are you being paid for the representation here? Mr. Tucker: At this moment? No. Mr. Adams: Okay. Mr. Tucker: Procedurally...I believe I'm allowed to ask some questions. It's my understanding of the procedures. Mr. Adams: Well...actually when you provided your testimony you had that opportunity but...Mr. Tucker what are your questions? Mr. Tucker: Well first of all Mr. Gonzalez I believe it is...is that correct...deputy director. He did not address my complaint about lack of response from the building director when they were made aware of my complaint over the course of several weeks...that's one. Second of all I would like to ask if the calculations...Daniel Lee provided for this job are attached as a record to the plan because normally those calculations are stapled to the plan and accompany the plan in its life as a building plan. Third of all I would like to state that this build...many builds all over this island are built with steel. Steel load and span charts are not esoteric pieces of information in the world of engineering or construction. So trying to pretend that there's something usual and farfetched to mind is just a little hard to accept and I would like to ask about that and fourth of all...I would like to say that it's my understanding that the International Building Code has a certification project for code compliance and I have asked and I have had no response from the building department if any of their staff are code certified by the IBC. Mr. Adams: Okay. Thank you. Mr. Tucker: Thank you. Mr. Goodenow: Could I follow just briefly on that. I thought that the letter that you submitted...that you didn't get a response to was in the other case 2016-17 not 16. Mr. Tucker: It made reference to other issues in that letter which would have been this if I had gotten a response. I didn't want to... 40 Mr. Goodenow: I just wanted to make it clear that was in that matter not this matter. Mr. Tucker: I didn't want to send them a ten page...a big lengthy one...I just wanted to get a dialogue going...something which never occurred and in my mind is an ethical violation to not be responsive to a complaint. Mr. Goodenow: That can be taken up then...alright thank you. Mr. Robinson: Madame Chair if I may. Ms. Kahakalau: Yes. Mr. Robinson: I seconded this motion and the reason for my seconding is you know we've all had our issues with getting plans approved. It's just ubiquitous to the process and you know it's always a question of whose responsibility is it...but in seconding this I really didn't see anything in the course of this that really showed that there was unfair treatment or there was partiality involved in the process. If anything it just seemed that the process could've have speeded up if we just got a structural engineer outside of the County to do the calculations and submit those to the County. So that was my reason for seconding that and I just wanted to throw that out there so we're clear because it's really based on as Mr. Tucker has written fair and impartial...and that's where I think this all lies. Ms. Kahakalau: Do we have any further comments or discussions...Mr. Adams? Mr. Adams: Yes I do. Thank you Madame Chair. I apologize. I'm in agreement with my colleagues...I asked specifically about the petition and the elements of the petition that talked about being unfair and impartial. What I heard were responses that had to do with things that were technical in nature belong in my opinion in the Board of Appeals jurisdiction that they need...that Board of Appeals needs to take up if in fact there isn't any resolution to these concerns within the two departments or the Department of Public Works. That's the way that it goes when you're dealing with the technical elements associated with the approvals associated with plans and buildings. When it comes to the fair and impartial...I have to say I am concerned that we don't have some process within the Department of Public Works...we're only talking about that department right because that's what we're talking about. For oversight or a follow on approval when in the...with the intent frankly to help the packet moving forward...a 41 member of the County...County employee or officer engages in support for that individual to try and help them move forward. We have seen this in a recent case as a matter of fact where there are customer service implications associated with providing information. The idea is not favoritism...it's to try and help the member of the public coming to the County and the County trying to do...provide customer service. This is similar to that...but there's a step that's in my view where we have moved beyond...we're providing service...the idea for that service is to try to help the packet going forward and all hats...my hats off for the intent to do that...but because there's an implication...because there's no process for making the determination of when to do that...there is therefore the perception of favoritism...and that perception then can be mitigated in my view if there is another individual in the County that has responsibility within the department for approval in that situation....at least that gives us some way of mitigating what is intended to be clearly a support for the public for the citizen providing the packet moving forward...looking for approval. I hope I'm not being too confusing here. I just think that there needs to be a process. Otherwise...it's a I tried to help somebody and then it's backfiring on me....the idea is not to have it backfire on the individual...the idea is to make sure that we are following the law as it's written and also doing it in a way that's fair, courteous and impartial. Ms. Kahakalau: Mr. Robinson...do you have comment. Mr. Robinson: No. Ms. Kahakalau: So Mr. Adams are you suggesting that we make a suggestion to...I'm just not too sure what to do with the... Mr. Adams: I'm making my comments as a part of the minutes. I'm going to vote for the motion to dismiss in 2016-16...but I think that the department has heard me. Mr. Goodenow: I just add I think that's good advice...but as far as this petition is concerned...maybe we should move forward. Mr. Yoshimoto: Board members just to be clear then...what does the Board want the opinion to say? If someone can summarize it for me so that it becomes crystal clear to everyone here. Mr. Adams: In my view...I'm not the one that made the motion...but my view I would dismiss for lack of an alleged violation. 42 Mr. Robinson: Absolutely. Mr. Goodenow: That works for me. As alleged in the petition. Ms. Kahakalau: Alright do we have any further discussion...so we have a motion and a second to dismiss Petition No. 2016-16. If there's no further discussion...I'11 call for the question. All in favor say aye...any oppose? So the motion is carried. Thank you. Motion and Vote: Mr. Goodenow moved to dismiss petition due to lack of an alleged violation. Mr. Robinson seconded the motion. All members voted aye. d. Petition No. 2016-17:Initial review of a petition alleging that County officers or employees are in violation of Section 2-83(a)(3) and 2-83(b) (Fair treatment) of the Hawaii County Code due to the unfair treatment by the building department. Ms. Kahakalau: Here we have a response letter dated September 27 as well from the Department of Public Works and since we have both or similar group here. Mr. Tucker? Mr. Tucker: Yes. Ms. Kahakalau: If you would mind stepping forward and just again please for the record state your name and any additional information in regards to that petition please. Mr. Tucker: My name is Robert Tucker. Additional information? Ms. Kahakalau: If you would like to say anything or as you know now if you have any questions this would be the time to ask or to state anything else beyond what you have submitted in writing on September 19. Mr. Tucker: Okay. Well some of this maybe familiar, but on August 22 is sent a notice of intent to file an ethics complaint to the director of public works. I have had no response from that over the course of several weeks. I've considered lack of response to a written communication to be discourteous and unfair treatment under the Ethics Code number one. Number two...is to background this issue on number seventeen is facing as a vendor of building materials which is what I am and draftsman. Facing increasing months and months of delays in building departments. I took a look at the code under then code exemptions that are referenced in my letter to Warren Lee. Unique to the Hawai`i County Code and it's not in the 2006 IBC or anywhere else and it's not even in other 43 County codes. A new code section was adopted by Council a couple of years ago which exempted accessory structures on agricultural land of 600 square feet or less. Now with that knowledge in hand over the new code and appreciating it's impact on agricultural lands and for my business...I spent considerable funds and traveled to China where I had agricultural utility buildings designed to my specification that I thought would provide a good value to the citizens of this community and I invested in them and brought them in. Now out of the blue for me in July...early July I get a call from Mr. Neil Erickson...I think his call was well intended. I think Neil was...wanting to be of service to me and in his call he said to me that he's seen the advertising for my buildings making reference to the code and permitting exemption...and he wanted to let me know that I was...he felt I was misrepresenting the code in my advertising. So that was a preemptive move from the building department to me without any application in place. I just got a call. Now I...my response to Mr. Erickson on that call was well I don't want to be misrepresenting the code...I mean...what are you talking about and he explained to me a number of different implications in what was written in this code. Now I've been dealing with building codes for forty something years...I speak English and read it pretty well and when I read a section of code that says...as you can read it in your file that accessory structures on agricultural land...less than 600 square feet are exempt from code. I take it to mean what it says pretty much and I invested a hundred thousand dollars on that purpose. So Mr. Erickson explained to me that accessory structures means implies that there must be a residence on the property or permit for one. Now in my mind I'm like well there's already an exemption for a hundred and twenty square foot buildings on agriculture...residential land. If the County Council in its wisdom is expanding that minimum to 600 square feet for agricultural land...how does it become necessary that there be a residential purpose...but in addition he said well there has to be commercial agricultural operations and he's also said that there has to be a minimum of two acres on the land...and a residence and I'm going well listen I said I have a sixty-five acre farm and it's a mile from my house. So you're telling me that I have a house over here on one parcel and I have sixty-five acres of farm land over here and I can't put up a utility building or a chicken coop or something and he goes no no you can...but everybody else has to have a residence on the property and that confused me...but my ultimate response to Mr. Erickson...you know was reasonable and polite. I said listen Neil if your interpretation of these things is true and correct...just show me where in code it says that and I'll be perfectly happy. I'm not trying to change the code...I'm not trying to appeal the 44 code. If I was...I'd be before the appeals board. So from that point we moved into a series of written communications in which I kept asking him where does it say this...where does it say that. He would say well it's in the Hawai`i County Code...it's clearly there. I would take my time to search the code for stem to stern...luckily on the internet these days you can put in search terms...reasonably go thru things in multiple variations of words...couldn't find it in the code. These communications takes a week or so to get back and forth most of them not all of them...but response time there's some lag in written communications and the County...and Mr. Erickson's not required to respond in minutes...the code...you know the County employees have a certain amount of reasonable amount of time to respond in written communication. So we went through a series of communications...I kept saying where is it? Show me where it is and then after the HCC Code Chapter 5 he said well it's in the IBC. So I go through the IBC...I go over it from top to bottom and I can't find the definitions and references he's talking about. Now what I did find in researching the Hawai`i County Code was that when the code uses a term like accessory structure...Neil is saying that implies that there must be a residential permit for residence on the property. Now I couldn't find any definition of that in the code book...but what I did find and I can have exhibits of that in your papers was in the Hawai`i County Code...I think it's section 3-12. It makes a list of utility buildings purposes about twelve or fourteen of them and two of the fourteen it says in relation to residential single...one or two story property. So when the code wants to have a subject in relation to a residential building...the code clearly says so. There not trying to save ink you know by not saying it...they have a section 3-12 that list utility buildings...agricultural buildings...barns...stables... aircraft hangers...you know various things. On two out of the fourteen...it clearly says in relation to residential use. So I proceed to go back to Neil and say listen Neil you haven't answered these other questions very clearly...but I really want to know if...I willing to respect you opinion on this and I do not feel that I'm misrepresenting the code in my advertising when I say these 600 square foot or unless utility buildings are exempt...permit exempt on agricultural land...but you have to show me where does it say this. So ultimately in page...email number ten...there's a lot of emails there and there's a lot of slow reading...but number ten is the pertinent one when which he interjects in my email that he basically starts relying on state code. Well there's state law that says that reinforces the things I'm talking about and so that gave me a reference point...Okay I want to find out...I want to do right...I'm trying to obey the law and the code and I do not want to be...I'm an eagle scout...I do not want to be somebody who's 45 misrepresenting things to anybody especially my clientele. It would be very hard for me to misrepresent things like that to my clientele. So anyway he makes reference to HRS 46-88...state statute which covers a number of utility buildings. I here have a copy... Mr. Adams: I didn't hear that. I'm sorry. Mr. Tucker: HRS 46-88...it's in your paperwork that I provided and HRS 46- 88...let me find it here.... Mr. Adams: I just didn't understand the phrase...you made a phrase and I lost it. Mr. Tucker: Now this is section 3-12 and you have a copy of this...and here's a whole list of utility and miscellaneous structures and two out of the fourteen say...accessory to a one or story family residence or accessory to residential occupancy. So in the moments when the code wants to have something dependent upon a residential use...the code says so. So when Neil is telling that it's implied by just using this term accessories structure I'm not willing to accept that. So anyway look as we go into email number ten...he refers to 46-88...nowhere in 46-88 does it make reference to two acres minimum except greenhouses of 5000 square feet. Completely different subject then 600 square foot utility structures. If you look at 46-88...and the last page which is "e"...the state statute 46-88 says and I'll quote..."This section shall not apply to buildings or structures otherwise exempted from building permit or building codes requirements by applicable County ordinance. Now the County of Hawai`i has a specific ordinance which says as is quoted in my paperwork..."That accessory structures on agricultural lands of less than 600 square feet are exempt". So I have been finding myself inhibited in my business by being accused of misrepresenting the code and I don't think I am...and I think I have documented evidence that I am not...and I am inhibited by the fact that my customers and prospective customers having been going down to the building department and saying that they'd like...they're interested in buying one of my structures. I'd like to have a product that doesn't take ten months to get a permit so I can help support my girls in college and I can selling something off the shelf..you know agricultural uses and not have to have wait a year to see if I can make a profit...but anyway to this date...we're ninety days down the road now. Nobody in the building department has yet to show me any evidence that accessory structures implies that there must be a residence which I think would be in conflict with the intention of an agriculturally based 46 exemption. Or that it needs to have a minimum of two acres...cause it says that nowhere in anything that's been provided to me over these months and...this consistent delivering of bad information causes confusion...it causes doubt in my clients you know that I'm offering the product on an ethically sound basis. I mean I'm basically being accused of misrepresenting the code which I cut and paste into my advertising and I have been completely unable in the course of these months to have anybody provide me with any documentation that refutes my position. Now it's one thing to say you're implying something...something is implied...I'm not aware of any instances in the law where they really...they really execute on impliedness. I mean the laws very specific...the codes are very well written...millions and millions of dollars and millions and millions of man hours have gone into very precisely you know writing and defining and vetting you know this code language. Now...Neil expressed to me and it may be true and I think he was well intended when he's trying to tell me about this...but I believe what he's representing to me is not law and it's not code and it's not adopted by the Council...it's kind of low in policy and that over the years the building department people get hired and they come in and nobody sits around and memorizes the code unless they want to get certifred...code certified and the elders in the department and the ones that have been there fifteen or twenty years say oh this is the way it's done. This is our policy and this is how we're doing it...but they don't offer that new employee a factual basis to give them assurances that like me aren't offering my clients accurate information. So I have been losing business to people who are interested in putting my less than 600 square foot little structures on their Ag land by misinformation being provided by County to me and others. So this is causing harm...this is not a place where I can file a claim...you can't award me any judgment on that...but I need and I expect and I'm here to try and enforce the fact that the building department on the subject of this permitting exception which is adopted by the Council be applied fairly and evenly and accurately to anybody who walks in the door and ask about it. Now it's my understanding perhaps that Neil has indicated to me to a degree that he may have been involved in writing this unique piece of code in consultation with the...whatever Council person submitted the bill for the amendment...and that may be true and I think as an architect...and I don't know if he's code certified...but as an architect with an architectural history...I think his intention were...I don't know what his intentions were because if you're gonna do an exemption...expand a hundred and twenty foot residential exemption to 600 square foot for agricultural lands...why would you require a house...a residence. We have 47 thousands and millions of acres of land here that have farming on it...but don't have a residence on it. I got sixty-five acres...I don't have a residence on it...my residence is somewhere else. You think everybody has a papaya field out here...lives on it. So there's something going on verbally and in my case in writing on this email chain that's telling people...we won't allow you to exercise this exemption and they do not have a basis that they've been able to demonstrate to this date to base that on. Now I can give you my instincts are and what my suspicions are is that as somewhat forgotten as it may be...in 1959...the County board of supervisors basically illegally subdivided eighty thousand lots on this island. Mostly in Puna...some elsewhere and they called them Ag land. Now Helene Hale told me personally...we never expected anybody to move here. This was supposed to be a tax mind. People would buy them...pay taxes...they'd never come...they'd never want any services. So I'm thinking their minds somehow in the policy of this department...what we have going on is there's a mental policy not an official policy not a code policy that wants to treat one group of agricultural land owners differently than another group of agricultural land owners...and their taking this as intention perhaps a policy passed down by generations...but not in the code to spread this information...you have to have a residence or permit for one on the property to have an exempted utility building. That you have to two acre minimum...that you have to have commercial agricultural operations on the way and that don't apply to me...I'm okay...Mr. Tucker it's okay you can put one on your property...they can't. Though I'm flattered to think that I would be privileged enough that the County building department would allow me to put something up on my property without a permit. Unfortunately in this situation...my business...the way I feed my kids and pay their college educations depends on profitably selling products that people want and if the County of Hawaii building department is informing my potential customers that they can't buy my product and they cannot demonstrate in the code where that lies in law then we have an ethics complaint. Now let me see as I said accessory to a one or two story residence or residential occupancy is clearing stated in the Hawai`i County Code where it intends it to be. It's right here from your code. The references made to fending themselves on Hawaii Statute 46-88 under state statutes...and I don't know if this is English is clear enough for me to understand...I'm just a humble guy you know what I mean...I just a humble businessman with a high school degree. This section shall not apply to building or structures otherwise exempted from building permitting or building code regulations by applicable County ordinance. So why I am called and told that I am 48 misrepresenting the code as it's published and printed is a mystery to me. Now I had a few questions and so yeah I get to ask my question at the beginning and not in the process let me see what I got here. I am curious about code certification. We bought in new building codes and they are remarkable more strenuous than the past building codes. So having plan checkers and building officials that are intimate with these codes would seem to me to be a worthwhile go at this department and this County. I have asked the building department if they have any code certified people in their department and I have been denied an answer. They do not respond. I think it's a reasonable question. I have asked the building department to provide me with an organizational chart so I can know who supervises who...who shall I talk to. I do not get an answer...I don't get no response. Now I'm wondering if Mr. Erickson in this regard having I believe he's intoned to me that he was in consultation with Council when they drafted this code. Had intents in his mind or he did not put on paper or they did not translate into the final language. One of my positions here...one of the basis of my complaint is that by misrepresenting these issues to the public...Mr. Erickson however with no ill purpose in his mind and heart...I don't want to suspecting of ill intentions in any of this and other individuals in the planning department other than the individuals in the building department are repetitiously telling people facts that are not true and influence the progress of their life and business in ways that are costing me money at least and possibly them intentions and their future...but what I'm coming at you from my complaint and the basis of my complaint is that by the act of going to the counter and somebody ask says well there's this exemption in the code for 600 square feet and I'd like to put a little utility shed up or stable or barn or something on my property and they say you can't do that because you need at least two acres. What they are doing at that moment is taking on the job of the County Council. I am not aware of any legislation that's been passed or any legislation that's been adopted that allows building officials to make up code. Those codes require a legislative process which has been duly done and results in the language which I'm relying on in my business. And when an individual comes in and they say well you have to...they give you one objection after another...you walk up to the counter and they tell you no and you say what about blah blah blah and then they say well there's another reason why you can't because ....and then you say well what about...well you can't do it because there has to be you know a residence on the property. And I walk up and I say well what about me and my property and you say oh you can do it. Now I'm privileged to feel that I can do it you know that's great...I can do it...I just can run my business and in this act I 49 actually think that this starts to cross the line in what could be called restraint of trade. Anybody familiar with that term? Restraint of trade is illegal and it's actionable. It's not my goal to go there...what I want to do is run my business ethically, honestly and openly. I want to do it in full knowledge and awareness of what the code is and want this department to recognize that they're making serious mistakes and it's an ethical flaw and their taking upon themselves...their duties and responsibility to Council when they make up stuff no matter where it came from. Like I said I think it's passed down by the generations. I think that enough of a statement. Ms. Kahakalau: Thank you Mr. Tucker. Mr. Goodenow: Brief question for Mr. Tucker. Ms. Kahakalau: Go ahead. Mr. Goodenow: Mr. Tucker you said that you asked about whether people were code certified and you asked for organizational charts. Could you give us kind of a time frame...when did you do that...how did you do it and how often. Mr. Tucker: Ultimately I had to file an OIP request...another OIP request has been filed...there were seven different issues that I wanted to get specific information on and I made a written request from the OIP laws. Now some of them could've been responded to on the spot...but they got back to me and said well we need ten days to try access how much the questions...we need ten days to figure out if any of this needs to be redacted and then once our ten days are up and we can figure out what it is we might be willing to tell you...we need to make an estimate of what the cost would be to do that...and once we do that which is some date in the future...we have twenty more days to respond. Mr. Goodenow: Have you gotten a response yet? Mr. Tucker: No...but I believe the last moment of their calendar of delay is tomorrow. I had hoped to have some of this information by the time I came here and I don't think it was unreasonable questions. Mr. Goodenow: So that is part of your complaint though that... Mr. Tucker: The OIP request? 50 Mr. Goodenow: No...well you requested this information and you didn't get a response. Mr. Tucker: Well part of my complaint is whenever I...as soon as I become somewhat annoying or questioning of what they are doing...they go blank...they don't respond...they don't respond...non responsive...unresponsive. Mr. Goodenow: Alright thank you. Mr. Tucker: Sure. Ms. Kahakalau: Thank you Mr. Tucker. So if we could please have Mr. Erickson and Mr. Lee or actually his representative come up here. Thank you and again if you could please for the record state your name and any comments. Mr. Gonzalez: Good afternoon Brandon Gonzalez, Deputy Director for the Department of Public Works. Mr. Erickson: Neil Erickson, Plans Examining Manager for the Department of Public Works, Building Division. Mr. Gonzalez: I would like to start off by addressing Mr. Tucker's two points. First being a lack of responsive, discourteous under the Ethics Code in relation to getting an answer for this accessory dwelling. It became clear that once this issue on what is an accessory dwelling and what can qualify for an exemption became more complicated and involved multiple reference points including State law and the County code. That more agencies needed to be involved in drafting a response because we wanted make a good, concise answer to address Mr. Tucker's question. Would his structure be exempt from a building permit and what is a definition of accessory? Now that task...I take some of the responsibility for that because I had asked our building plans examining manager, our building division chief and even the planning department...what are the implications of considering our interpretation of what accessory dwelling or structure means or Mr. Tucker's application of accessory structure and so the lack of response for that isn't because of any ill intentions. It was because we were trying...we were still trying to work out what is the best answer to address Mr. Tucker's concerns and the concerns of the population at large who may have the same question. If I could characterize this whole situation...I do agree with Mr. Tucker in one sense is that there's just been a lot of miscommunication and so this is where the aspect of me thinking that really this is...when 51 it gets into the definitions and the building code or the State law that applies to the building code and the IBC again I would submit respectfully that that is a matter for the Board of Appeals to officiate. Okay that's the second part. So this is the thing...the miscommunication...if we were to get into the nuts and bolts of the technical aspect...what we have here is a situation where Mr. Tucker has a structure up that apparently had a sign saying it would not require a building permit. The disconnect here is whether or not the building itself if it were sold to someone else would require a building permit. Our problem is at this point...if he wants to advertise it as not requiring a building permit...that's his choice...but every buyer needs to be aware that from the County's stand point...the starting point is everything that is built requires a permit. I'm sorry that's our land use regulator structure like I explained previously. May I build and how may I build. So you start that as your premise. Then if you meet certain factors or criteria...you don't require a permit so the dialogue and email exchange that has been going on has really been trying to find if this building for Mr. Tucker falls within the exemption for permit. So I in reading in the emails and talking with Neil and trying to find a solution for this and he's been working on finding a solution. Is....are we saying that every building that Mr. Tucker's gonna sell will require a building permit which I think is his arguments saying we are restraining his trade or gonna impact on how he can market his building. I don't think we're saying that. What we are saying in this case is the actual use of the structure he has currently erected does not fall under within an agricultural use because it is being used as like a show model. That in and itself with checking with the planning department and with our building department triggers permit requirements. It doesn't fall within our exemption language for accessory structure. Now...if someone were to buy a structure and put it on an appropriate lot that meet the criteria...yeah it may not require a permit. The County can't make that general blanket statement though. Cause it does come down to the characteristics of the land where it's placed and circumstances surrounding it. So you know I think in that regard that should clear somethings up for Mr. Tucker in regards to his business...but as for the structure that's up now that's what we've been saying is it would require a permit. When I look at Hawai`i County Code section 5-19. That is the section in our code that requires a permit for any structure and within section 5-19 there are a dozen exceptions. 5-19 subsection exceptions number eighteen says one story detached accessory structures used as tool and storage sheds, play houses and similar uses, provided the floor area does not exceed (a) spans one hundred twenty square feet and (b) does not exceed 600 square feet for agricultural zoned lands. 52 Building cannot be located within the building setback as required by zoning. Verify setback requirements with the planning department. So that's the realm that Neil was looking at for the exemption because when you go up to 5-19. The starting point for any analysis on whether a permit is required...it actually says one permit may be obtained for dwelling and its accessories such as fence, retaining wall, pool, storage and garage structures. So what Mr. Erickson was initially interpreting and applying makes sense to him. Now the strange interplay with this is how you have an Ag lot and you don't live there...it's just your Ag lot...your farm lot. So what if I just want to put a shed to store my tractor or feed or fertilizer. Would it be reasonable to interpret the applicable laws to say no you have to have a house in that situation and that has been the discussion amongst myself, the building chief, Mr. Erickson...even the planning department on whether that would make sense and if that would be a reasonable application. The analysis at that point is what is the use of the land? If the use of the land...if it's zoned agriculture and the use of the land is agriculture...taking a look at State law exempting from permit requirements and the use of the land. Would it make sense to have a broader definition for accessory and that's what we have been trying to analyze and make sure that we are comfortable with an interpretation. And at this point...just from a common sense stand point it kind of makes sense that you would allow that type of accessory use to be done because if you take a look at the legislative history for HRS 46-88. Exemptions from building permit requirements for agriculture zoned lands...you that was one of the things to give the farmers and the ranchers relief from some of the regulator controls of government because the ability for them to survive and the profit margin are so slim of that type of operations. So...and I'm really getting into the technical stuff..but...that's where we're at at this point and it's just a matter of us vetting that analysis and reasoning to see if we're comfortable with it. And getting back to Mr. Tucker on that. So...when it comes to this thing about we would need at least two acres for the exemption...that was part of the analysis that is taken right out of how the State agriculture exemption language is worded. So we are looking for some consistency there and the unfortunate thing too is in Mr. Erickson's position...he's expected to be kind of like the jack of all trades....semi-expert on everything...the thesaurus and encyclopedia. So there's a lot of knowledge in there...some of it may be useful...some of it might not be...but what we also got wind of recently this summer from the State Department of Land and Natural Resources is that the Federal Government has informed the State of Hawai`i that we have to amend HRS 46-88 or else we jeopardize National Flooding 53 Insurance program eligibility for everybody in Hawai`i. So that complicates the analysis a little bit more on how we interpret the exemptions. So that is just additional information on that aspect. So we have been working on a response...the fact that there was....nothing lately...was an oversight on our part and when it comes down to being unfair in applying the exemption. The exemption applies to everybody that fits within the exemption requirements. We want people to able to utilize the exemption when possible and so it's not...it has nothing to do with a preferred method of construction or a type of company in this case. It just really focuses on the issue of the case by case analysis if something qualifies for the exemption and that's what I have to offer on this...so thank you for your attention. Ms. Kahakalau: Does anyone want to ask questions now or do we want to wait for Mr. Erickson.... Mr. Adams: Just a simple quick question if I might. Just real quick. Is there any type of policy in the County that you're aware of for response time to private citizen correspondence? Mr. Gonzalez: Okay. Yes...so in general when we have citizens requesting information and records...we follow the State guidelines from the Office of Information Practices. Now if we...and we also utilize the form and documents they provide. So if there is a request that is big for lack of a better term and it would take more time and effort for us to search, review and segregate then we notify the requestor on the form and then we can do incremental disclosure if possible. Sometimes we try and do one time disclosure....so yes we have that process. Ms. Kahakalau: And so did you follow that process...did you send Mr. Tucker that information? Mr. Gonzalez: I can follow up on that because I'm not too aware of his request for information in this case. Mr. Goodenow: Kind of related...there was this...well before I go there. I think we should accept the additional document and that we received in this matter. I believe there was Mr. Erickson had submitted something...October 11 and I don't know if this already...this petitioner's reference document. Mr. Adams: That's part of the petition. 54 Mr. Goodenow: That's already in there. So if I can ask Corp. Counsel...it's only Mr. Erickson's submission. Mr. Yoshimoto: As well as the response letter submitted by the Department of Public Works dated September 27. Mr. Goodenow: The most recent letter. Mr. Yoshimoto: Once we do that then we can give a copy to... Mr. Goodenow: I move that we accept those and file them so that they can be distributed appropriately. Ms. Kahakalau: Do we have a second? Mr. Adams: Second. Ms. Kahakalau: Okay. Any discussion in regards to that? If not I call for the question...all in favor say aye. Any oppose? Alright so we're making that part of the public record and we can distribute those. Motion and Vote: Mr. Goodenow moved to accept and file the documents. Mr. Adams seconded the motion. All members voted aye. Mr. Goodenow: Thank you. I would like to ask you know on the letter...besides the request for information type of letters...there is this email dated August 22 to public works...a copy to Warren Lee...addressed to Mr. Lee. It says intention to file an ethics complaint...have you reviewed that? Mr. Gonzalez? Mr. Gonzalez: The item that was attached to the petition? I can see it now. Mr. Goodenow: And so I mean that...was a response ever made to that email? Or did you feel a response not necessary or.... Mr. Gonzalez: Actually this email...I became aware of it prompted me to have the broader discussion with the building division, planning department and myself in crafting a response to Mr. Tucker. Not just a response saying don't file...but a substantive response to address his concerns. Mr. Goodenow: So you're still working on that? Mr. Gonzalez: Right and I think what Mr. Erickson filed today kind of gets to some of the aspects of what Mr. Tucker is raising and clarifying whether what our position is...it's not every structure that he's 55 selling requires a permit...it's just the structure he has up now requires a permit due to its use....and then I think too from there that is a good spring board for future discussion between DPW and Mr. Tucker so that we can resolve this matter. Mr. Goodenow: Just kind of...you know Mr. Adams asked about procedure for...letter...request from the public...I mean outside of request for information on OIP...I mean is there a policy as far as responding to letters from the public. I mean personally I don't respond to every letter I get....but is there some kind of policy in the department? Mr. Gonzalez: The...our inspection division for DPW has a frame work for responding to complaints regarding building code violations...and everyone else is just on time available basis to respond as quickly as possible. Usually when we have complaints regarding a specific division...that is actually referred to the division head to address first...but in this case I do recall sitting down with the division chief and Mr. Erickson and actually contacting planning department to find an answer to some of the questions that were raised in the email dated August 22, 2016. Mr. Goodenow: Alright. Thank you no further questions. Ms. Kahakalau: If we don't have any further questions Mr. Erickson. Mr. Erickson: Good morning. I'm actually looking forward to this because it's something that comes up frequently and your opinion matters as much as anybody else's and it's getting this out of the weeds is really hard. In going there into the code gets deep really quickly and I don't know if that's something you want me to do...right as far as whose role it is to interpret this or whether or not it's something that's published in the codes. So...Mr. Tucker is talking about the definition of accessory structures...whether or not they would be considered permit exempt and what it the definition of an accessory structure...what is the definition of a detached one story you know structures used for tool and storage sheds. That's all part of our building codes and the definition of accessory structure only shows up in the International Residential Code. The definitions of what we call accessory or u-occupancy are in the building code...but generally they just give us guidelines to find the closest reference. So I don't make this up...I research a lot...this box is full of codes and commentaries that we rely on to make our decisions right and give people guidance...and in general yes I do try to help people find exception if they comply and meet the sections of the codes. So in the case of Mr. Tucker...there 56 seems to be a disconnect like Mr. Gonzalez says...his building that's advertising for sale open for the public to view and any others that he sells are two different matters really. Mr. Tucker: It's not my building. Mr. Erickson: So...I'm not sure how to address that but in any rate. The structure that has the advertising on it...maybe correct. Maybe you'll be able to buy one of these structures and put it up on a property and it may be permit exempt...but like Mr. Gonzalez says you know the premise is you start with the building permit and if you meet all the qualifications...yeah it could be exempt and I actually have no objection to that and this never would've been brought up to the property owner who Mr. Tucker if someone hadn't called and asked me the very question. Is this building in fact possible to exempt from our codes? Yeah it's possible...I don't know anything about it...why don't I make a couple phone call. So there's no violation in place...you know I haven't done anything to help...but we're trying to help craft and understand what the use of this building is and the possible use of other buildings that might be exempt of the code. I'm not making this up...this is the same answer I give everybody and I'm not generating any income from this...I don't have competing interest in this...I don't promote lows or cider sheds...I treat everybody the same...I don't care if it's a six panel or a wood frame construction. It's irrelevant to me...I treat everybody the same and my staff is pretty much follow in suit. So there also seems to be confusing between our State codes and our local building codes and they both run simultaneously...but again this is a matter of interpretation right for the Board of Appeals where there's a dispute in my application of the code. By the way we get applicants come to the counter every day asking about structures that might be exempt and misconception is that you can live in these structures. It's never the case right and so a lot of times we try to help these people understand what might apply...but in general a permit is required unless you fall within the exception of the code. It's pretty plain and simple. I think I outlined all the other arguments in the section of the code that give us authority to do this in my letter to you Madame Chair so I hope that stands. If you have any questions of course I'm here. I'm not as eloquent as Mr. Gonzalez. Ms. Kahakalau: Thank you Mr. Erickson. Do we have any questions for Mr. Erickson at this point? Ms. Kahakalau: Mr. Robinson? 57 Mr. Robinson: I do. I know that we have Ag one half acre...we have Ag one acre. Where do the two acre definition come in? Mr. Erickson: Straight out of the State HRS 46-88 that provides exemptions to farmers and ranchers. Mr. Robinson: And that's where it comes from? Mr. Erickson: Yup. Mr. Robinson: Okay. Ms. Kahakalau: Any other questions? How frequently is it or is it at all that these kinds of...like that you get emails let's say from somebody that has questions in regards to that and in general what is the response time or how does that...how is the process determined? Mr. Erickson: I get emails everyday all day long regarding sections of the code and so I respond to design professionals and homeowners and people planning to move here. All day long...and the responses are usually cut and paste right out of the sections of the code that apply and if they need some additional clarification...I encourage them to get a design professional on board and bring their proposal to us for review. Ms. Kahakalau: And so would you then agree that the correspondence that you had with Mr. Tucker as far as the various emails going back and forth that would be a normal or a usual type of correspondence going back and forth. Mr. Erickson: I try to respond frequently or daily if I can and the correspondence between Mr. Tucker and I...at one point I had to apologize...it seems as though I wasn't making myself clear and so the differences between our County exceptions from the permits and the State exceptions for permits and the definitions. They come from multiple places and yes when we are adopting this code the exception number eighteen out of the code was drawn straight out of the International Residential Code and expanded to include agriculturally zoned properties and I did talk to Brenda Ford and Pete Hoffman about it at the time. Ms. Kahakalau: Thank you. So I'm wondering if we're gonna have a motion or... Mr. Adams: I would move to dismiss 2016-17 for lack of alleged violation. Mr. Goodenow: Second. 58 Mr. Adams: If I might as the mover...I do have a question for Mr. Tucker. Thanks Mr. Gonzalez. In your petition Mr. Tucker.... Mr. Tucker: Yes sir. Mr. Adams: 4b identifies...your statement is that Neil Erickson has been violating 2-83(a)(3) which is the courteous, fair and impartial manner that element by placing requirements and demands on my company which have not been made of other vendors of utility building kits i.e. Home Depot, Sears, Lowe's. Could you expand on...could you expand on that position...you have any evidence of that? Mr. Tucker: Just from our verbal discussions. I'm not aware of any other vendor of utility buildings being called and told we're in violation of anything. It's something of some concern to me because there are a number of vendors of utility buildings out there including Sears, including Lowe's, including Home Depot and as a small scale local vendor I feel a little picked upon perhaps. I would like to correct some statements made earlier that the building that came to the attention of the...of Neil and the department is not my building...it's on another person's property and that person has been spending six years trying to make a farmers market on that location and they are growing pumpkins and papaya's and lychee on the property and they feel that...they're being picked on. Mr. Adams: Thank you Mr. Tucker. Mr. Goodenow: Could I just follow up on that with one quick question. Mr. Erickson have you gotten calls about people saying...hey I bought this shed at Sears or some other place and do I need a permit? Mr. Erickson: That seldom happens no. I can't recall one. Mr. Goodenow: And if I went and bought a shed from Sears...would it under all circumstances...would I need a permit? In any circumstances would I need a permit? Mr. Erickson: You'd have to tell me more about where you intend to put it. I mean a friend of mines has a Sears shed...he put it up adjacent to his garage and it blocks the garage to the fence line where that's supposed to be open space according to the planning department. So I said probably should move it or get a permit. 59 Mr. Goodenow: In theory...there's no difference between Mr. Tucker's products say and another product. There's no difference as to what may or may not be permitted? Mr. Erickson: No difference at all. Mr. Goodenow: Thank you. Mr. Tucker: May I ask for your indulgence? Mr. Goodenow: If it's alright with the Chair... Ms. Kahakalau: Yes go ahead sir. Mr. Tucker: Now Mr. Gonzalez and Mr. Erickson here...Neil. Have made statements on relying on HRS 46-88 which I've exhibited now shown you you have a copy of it clearly says at the on the third page of the document that this section does not apply and they've also made references to the IRC which has not been adopted by the Council. Now in my research I have found language which exhibits precisely the points Mr. Erickson has represented to the public over time and it's in the State of Wisconsin. Mr. Goodenow: If I may...I mean you may be absolutely right...but our job really is only to weight your complaint in regards to the Ethics Code. It's not to make a legal determination as to whether this applies or not. Mr. Tucker: But if you're misrepresenting information to the public...I consider that to be a serious ethical issue. Mr. Goodenow: If you are purposely doing it perhaps. If it just...and I'm not saying you're inept of course....but those other issues if you're wrong or whatever that's...we're not the forum for that if you of course doing something that violates the Ethics Code then yes if you're purposely.... Mr. Tucker: Well stating this code things that have not been adopted by Council would not be considered an unpermitted privilege? Mr. Goodenow: If you disagree with the determination...I would say the Board of Appeals. If you get a written determination that says something you don't agree with it...that's independent of ethics. Now if he purposely lied or did something like that or picking on you...well then sure that's the Ethics Code...but there's no evidence of that that you're being treated differently as I can see. 60 Mr. Tucker: I have submitted evidence of that. Mr. Goodenow: What specifically? Mr. Tucker: When Mr. Erickson told me that there was a requirement for a permitted house or structure on the property. That there was a requirement for agricultural on the property and that there was a requirement for two acre minimum on the property. That applied to everybody...but me. Mr. Goodenow: Do...Mr. Erickson make a response? Mr. Erickson: I think you have copies of all of the emails correspondence and it's clear that there's a disconnect between our County code permit exceptions and the State exceptions right and the fact that the building that he erected on....that he claims is not his building but advertises his buildings for sale on that building is not used for the intended purpose...it's an advertising purposes and it's not exempt from the code right. So there's three different things going on here so it's hard for me to help him understand that when I'm clearly not even to do to you or for you rather. Mr. Tucker: For the public. Mr. Goodenow: That's fine...I support the motion to dismiss on the grounds stated. To me this was borderline like the previous case...you know we would expect you know courteousness in responding to emails quickly and all that...but the big picture issue...is really this issue about whether it's permitted or not and that's not really what...you know...you need a permit or not. That's not what we're here for. Mr. Adams: So let me if I could...if I may. We go to your petition...right... that's what we do and in the petition you have four elements a, b, c, and d. So let me just address my view of those. In a...that Mr. Erickson been violating 2-83(b) by inventing code language that has no basis in the published code in the act and in that act granting himself an unwarranted privilege reserved for the County Council. So when go to unwarranted privilege because you're talking about 2-83(b). That 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. Then it has included but not limited to following phrases beyond that. The use just so that you understand...the use of unwarranted privilege in the code has to do with identifying privileges for oneself or for others not in accomplishing one's official duty in interpreting the code as 61 they're supposed to do...right...you have the ability to go and disagree with that interpretation and that's through the Board of Appeals process...right...or ultimately if there's a final decision by them to court of law...but unwarranted privileges in the Ethics Code refers to taking advantage of somebody else. That's clearly not what's happening here. 4b...violating 2-83(a)(3) by placing requirements and demands on my company which have not been made on other vendors of utility building kits. It sounds like that this was a complaint driven system. It often is when we're doing...when the County is taking a look at enforcing potential violations. In this case it wasn't necessarily even a violation necessarily...but it was still complaint driven. That's pretty standard practice so to me there's nothing fair or....there's nothing unfair or on the other side of impartial from this...it's a standard way the County goes about obtaining its information. So I just...I don't see that where you are being held to a different standard than the other vendors of utility building kits. And then c...Mr. Lee violating 2-83(a)(3)by failing to respond...I think we've understood where they are on that process right now and he's violating 2-83(a)(3)by supporting the actions of Neil Erickson by or failure to act or supervise. There's been no evidence to my view that he's one not supervising Mr. Erickson and then two that there's a violation there particularly in terms of the courteous, fair and impartial manner. So when I take a look at the petition that you provided to me...those are the ways that I'm looking at that which is part of the reason why I have made the motion to dismiss...not voted on yet...but the reason that I made the motion so that you understand. When we take a look at these petitions...you know...you can provide them and you can present them...you've done so in a very articulate way with lots of information and I want to thank you for doing that and thank you for coming here and discussing this in a very forward and frank manner and I'm just responding to that. Ms. Kahakalau: I concur with Mr. Adams...however I do would like to say that as far as the administration is concerned...you know sometimes we can be proactive and even just the short responses...we're working on that I think would go a long way to make the public feel that that's something is happening because it's very hard for us when we're out there and we do have legitimate concerns you know he's a businessman and he has invested in this etc. To just no hear anything for months is hard you know when you're sitting on the other side and even just knowing that you're working on it I think would alleviate a lot of stress and a lot of unknown variables kind of things so I would make that a suggestions even if it's just a very brief you know...we're working on this matter. I think that would 62 really help the public to feel more confidence that their issues are being looked at versus just no response whatsoever. So that would be just a suggestion. Do we have any other comments in regards to this motion? So we have a motion on table to dismiss 2016-17 and we have second. Call for the question all in favor say aye. Any oppose? So that motion is carried. Thank you very much. Motion and Vote: Mr. Adams moved to dismiss the petition due to a lack of alleged violation. Mr. Goodenow seconded the motion. All members voted aye. Mr. Tucker: Thank you. Mr. Goodenow: Thank you. Ms. Kahakalau: It's 1 o'clock now...do we want to break for lunch? Yes...Do we need an official recess? We will take a brief recess until 1:20 p.m. Thank you. 1:03 p.m. The Board took a lunch recess. 1:19 p.m. The Board returned from recess. Ms. Kahakalau: Our next item on the agenda if everybody...just a quick question...we're still holding on 2016-14 right? Mr. Yoshimoto: Yes. He was here but he went upstairs. I should make sure he's on his way. So we're gonna take this one first and then the other one. Ms. Kahakalau: Okay. That sounds good. e. Petition No. 2016-18:Request for an informal advisory opinion from former County employees, to determine their ability to provide professional services to the County of Hawaii in regards to Section 2-91.2(b)(c) Post-Employment of the Hawaii County Code. Ms. Kahakalau: This is a...there's a closed hearing requested so that's still the case? Mr. Adams: I would move...yeah go ahead...I'm sorry. Mr. Patel: You can just waive it. Ms. Kahakalau: Alright. Okay. So if you folks would like to introduce yourselves and just add anything in addition to that petition please go ahead. 63 Ms. Ng: Good afternoon I'm Jennifer Ng and this is Danny Patel. For the last several years we've served the County as Deputies Corporation Counsel. As of July of 2016...we left the office in order to start our own law firm and in doing so It's our intentions and our hope to serve the County or perhaps at a later date appear in front of the County...so in an abundance of caution we wanted to come before the Board in order to get an opinion an informal opinion as to what we can do on behalf. we!! in our private practice. So we submitted our petition, but we're happy to answer any questions that you might have. Ms. Kahakalau: Thank you. You have anything else to add there?No. Mr. Patel: Nothing else to add. Ms. Kahakalau: Thank you. Do we have any questions? Mr. Adams: In the attachment...you provide the copy of the Notice to Providers of Professional Services and I think I know why you did that. Why did you do that? Mr. Patel: Just to give you an idea of what kind of services we're looking at providing for the County. Mr. Adams: Okay. Mr. Patel: If we're to provide a little more specificity...at this point I think we're looking at hearings officers for Planning Commission and possibly appearing in front of Planning Commission as well. Mr. Adams: What does a hearing officer do? Mr. Patel: The hearing officer is basically appointed by the Planning Commission through the planning department...and when a contested case comes up for the Planning Commission...the Planning Commission... Mr. Adams: We have two though right. Two Planning Commissions. Mr. Patel Windward and Leeward. Mr. Adams: Okay. Mr. Patel: So for either...it works the same. If someone files a petition to intervene in an applicant's application...so someone is applying to 64 Planning Commission for example for a special permit...someone could intervene...outline a reasons why they don't think the application could be granted. If intervention is granted by the Commission...they set it for contested case hearing. So it's much like you the TMT case. Mr. Adams: You're the officer hearing the contested case hearing. Got it. Mr. Patel: Right. So the role of the hearing officer is simply to hear the case...make a proposed findings of fact, conclusions of law and decision an order to the Commission. The Commission ultimately decides. Mr. Adams: That's the questions I have. Ms. Kahakalau: Okay go ahead. Mr. Goodenow: I see you also plan to submit a...you know your notice to Corp. Counsel...under the variety of issues...I mean like you could be a mediator...appointed to mediator that type of thing...but some of these...my question....maybe I should make a motion...but I mean in general right there is a prohibition from appearing before a body where you've made a decision right or...had decision making authority...I mean...for a period of...I'm sorry I don't have in front of me. It used to be one year...still is one year. Mr. Adams: Twelve months after termination of the employment. Mr. Goodenow: So is it your intention though...I mean...you weren't like say a Council member or something like that. Are you applying...planning to apply immediately for these position? Mr. Patel: As far as the Professional Services to apply to be on the Professional Services list...yes we are. As far as bringing applications before the Planning Commission for example...nothing concrete at this point...but it is a possibility which is why we came here to seek the opinion. Mr. Goodenow: You're lawyers.... Mr. Patel: Yes. Mr. Goodenow: I mean I don't think it's unfair for me ask...but in your interpretation of the law...would...is any prohibition on you to do 65 that to...well let's say in the case of..represent clients before the Planning Commission. Mr. Patel: The prohibition would be with regards to the three specifically delineated items under 2-92.2(b). So sum it all up and the way we summed it up in our petition is basically anything that touched or considered by us...that twelve month prohibition would apply...anything outside of that would not. Mr. Goodenow: So if you were...not that you would be providing...being bond counsel or something...but theoretically right...if... you could be higher than that capacity. There would be no prohibition as bond counsel. Mr. Patel: Right. Specifically for us because neither of us toucher or went anywhere near those... Mr. Goodenow: Can I ask what you did specifically when you were in Corp. Counsel? Mr. Patel: I advised the Planning Commissions...both Windward and Leeward, Fire Department, R&D and I also did Labor& Employment litigation. The cases I worked on...on the litigation side came out of DEM and DPW. Mr. Goodenow: Alright...Ms. Ng... Ms. Ng: So I handled litigation matters and I also advised the Department of Public Works, Fire Commission and Liquor Department. I think those were my main assignments. Mr. Goodenow: I guess in addition...I mean...there's conflict of interest issues...but those are separate from what we're dealing with...but of course those would apply as well right... Mr. Patel: Yes. Mr. Adams: You mean in a bar sense... Mr. Goodenow: Yes...in a sense of you know a client that you know may have been presented. You had adverse proceeding against the County and now you're suing the County or something like that are. Ms. Ng: Right. 66 Mr. Goodenow: I can't think of any other questions. Mr. Robinson: Madame Chair I'd like to make a motion that there is no finding of conflict of interest in what they're proposal to do with their law firm is. Ms. Kahakalau: Thank you. Do we have second? Mr. Adams: Second for the purposes of discussion. Ms. Kahakalau: Alright. Thank you very much. You'd like to go ahead? Mr. Adams: Rick made the motion. Mr. Robinson: No further. Mr. Adams: I'm concerning about a couple of things...so this is an informal process. I'm concerned about the fact that as members of the Corporation Counsel...essentially a law firm and for the purposes of thinking about the Corporation Counsel...I think I have to think about it as a law firm and so in particular b3 becomes an issue for me...because I had obtained the information which by law is not available to the general public and so because you are a special...you deal in a specialized area as attorneys and you have these specialized rules...your access to information is not just necessarily associated with what you personally were on but also what you...what your firm had connections to which makes it difficult. So I think that for the purposes of the ethics opinion. We have to be really specific. I mean we have to be specific to the point of identifying the things that you worked on so that we can...we can make sure that you guys are protected in dealing with those...only those things that are outside the daily work of the areas that you did work in. You know this is very...very specific language...it doesn't mean that you can't deal with anything for example having to do with the Planning Commission...but it does mean anything that the Planning Commission is considering that you had in terms of being a specific case or proceeding or contract or application or pending legislation. So making sure that...and that would be...because there's two pieces to this right? There's the piece where you are representing a government agency and that's pretty clear and see that you can contract to act on matters on behalf of the County so that's easy right...but representing private citizens...private persons let me use that term. That's a different 67 issue right? That becomes more of the potential problem. So I am interested in having seen something from you all that would allow us to couch it ethics opinion...advisory opinion that is very specific that takes into account the things that you did while you were in the employ of the Corporation Counsel so that we get it right and then you then have the advisory opinion that you need for dealing with any questions that may come up over the next...we're in October...nine months now...nine and half months. I would ask Counsel...am I seeing this idea you know looking at the Corporation Counsel as a law firm is that not really a good idea...is that a....what's your thought on that? Mr. Yoshimoto: I think that's a good description of your proper approach. It is a law firm right for the County so...but I think the code is also clear in what areas are prohibited and based upon the petitioners fact pattern...they should be okay. Mr. Adams: Right. As long as we take into account the things that you worked on and we do understand...I'm sure you do understand...but I'll just say it for the record. It's not just the last twelve months of your employ where you worked on something. It's that entire period that you worked on accounts for that twelve month period. Would you agree? Ms. Ng: Yes. Mr. Adams: Okay. So I would suggest for the purposes of discussion that we ask our petitioners to come back so this would be probably a suggestion of a continuance...but that we ask our petitioners to come back with a specific delineation of those areas that they should not be in and that we then can use that for the purposes of formulating the advisory opinion. Mr. Goodenow: I agree with that though I don't know if there's any particular thing that's pending now...I mean obviously right if you want to apply to be something on this list there's not a problem. Mr. Adams: Right because you're working for the government. Mr. Goodenow: Because you're working for the County. Mr. Adams: Right. 68 Mr. Goodenow: So I don't know if you had some client in mind or you need some kind of answer soon or is continuing okay? Mr. Patel: No we have no client in mind...no specific case. Mr. Goodenow: I would note though that if they did apply here for a provider of professional services just to make it clear. That is not covered by the current change to having a contract right...would they have to come... Mr. Adams: As it turns out it doesn't matter because they're not employees anymore. Mr. Goodenow: Oh they're not employees of course so there's no problem with that. Mr. Adams: That's correct because I did think about that. Mr. Goodenow: I don't feel so dumb. Mr. Adams: That's why I had an immediate answer for it. Mr. Goodenow: So here's an added thing to throw out for the discussion. So let's say that you worked with...I can't remember what you said even now but say something with Environmental Management right...you didn't...so you're partners...but could you represent someone before Environmental Management right...I mean to be honest I mean after I left being County clerk I went to work for Carlsmith and while I clearly couldn't come before the Council on a rezoning...the opinion was maybe I should take the fifth but the opinion was there would be nothing wrong with me talking to Steve Lim...my boss and giving him my thoughts. Mr. Adams: As I...so as I review this...this has to do with individuals...it's not a bar...it's not a professional responsibilities kind of issue. That's a separate deal that they have to be concerned about right...but this has to do with their individual activities. So we're not being asked to be the bar here...we're just being asked to manage their post- employment conflict of interest. Mr. Goodenow: So would we do two separate opinions...one for each one or if we put them together would we have to clarify that while he can't do planning department she can. 69 Mr. Adams: Right...If we...right can't in the terminology I was suggesting...it's a matter that they're not these...he can't do this part and she can't do this part because that were the agencies that they dealt with kind of idea or the things that they dealt with...agencies not the right term...but the things that they dealt with and so that can be in the single one or whatever but I think it makes it easier for them to identify specifically those areas that they individually worked with. Mr. Goodenow: Alright. Would that being said then unless there's further discussion I'll move to continue? Mr. Patel: If I can. Before we go there. Ms. Kahakalau: Go ahead. Mr. Patel: For intensive purposes we're treating this the way we would under our professional rules of conduct. So regardless of the Ethics Code says as far as conflict come into play...while the Ethics Code limits us to the twelve month period post-employment...for all practical purposes that twelve month period is meaningless in terms of the Rules of Professional Conduct so it would be forever. Mr. Adams: That's true. Mr. Patel: With that said and going back to what you're inclination was as far as delineated the specific areas...I think it's our position that that would in a sense be futile because regardless of what particular departments we made have directly advised...everything office touched while at Corp. Counsel is imputed to us much like it would imputed to a law firm if Corp. Counsel was a private law firm while we were there. Mr. Adams: In the Rules of Professional Conduct. Mr. Goodenow: Right. Mr. Patel: Right so what I'm getting at is because those rules would more restrictive than this...we cannot anything that would run afoul of those rules. Likewise and because that's the case...there's...I guess no point in delineating what we specifically worked on and making it specific because everything that that office touched Corp. Counsel touched during our time there is imputed to us. So it would be a blanket provision basically. 70 Mr. Goodenow: Well could I ask then I mean what would you like...I mean we could tell twelve months you can't do any business that involves the County or you can't be a lobbyist...you can't do all these things. Mr. Patel: Right so in our mind...what I guess our position would be as to the correct result in this case would be...I think it sounds like everyone's on the same page as far if we were to contract with the County to provide services to the County that's a non-issue basically...but if we're talking about appearing in front of County boards...so for example the Planning Commission representing private citizens...anything that came before the office for example right...up until the date of...we resigned which would be July 22 we wouldn't be able to touch. So beyond that though...beyond that...anything that comes to office after July 22...we still have a duty and we couldn't even if you told us we could...we couldn't take on those cases as that would be conflict under our professional rules. Mr. Goodenow: I mean are you saying then...I mean you could never do a rezoning for the rest of your life? No? Mr. Patel: No that's not what I'm saying. Mr. Goodenow: I mean...well what you want as an outcome is for us to say that there's no problem providing services to the County number one. Mr. Patel: Yes. Mr. Goodenow: Number two...after the one year period...there's no problem with you representing someone before a Board/Commission or... Mr. Patel: Actually before the one year period because the code as written already limits itself to a one year period. Mr. Goodenow: Right so... Mr. Patel: So if we're talking about outside of the one year period...then under the code it's a non-issue. Mr. Goodenow: Right. Mr. Patel: So I guess the result we're seeking is that we could represent within the one year period. 71 Mr. Goodenow: So you're saying...so say if I wanted to hire you to do a rezoning for my property...you're saying you before the one year is up...you should...you're allowed to go to the planning board...Windward Planning Commission and say oh here's our proposal...he's gonna do this and we want approval. Mr. Patel: Yes as long as it's something that meets the criteria of 2-91.2. Basically in a nutshell... Mr. Adams: That's correct. Mr. Patel: It's something we did not touch. Mr. Adams: But we still need...but for us to do that we still need the specifics because regardless of what Rules of Professional Conduct say...that's not our job here right here so you have to take a look at that and you have to measure those the cases that you take against that right but as far as the code 2-91.2(b) talks about...those are specific not...those are specific case related...not agency specific right so it's not like it's not client specific maybe the best term right there case specific not client specific. So that's why we need the specifics so we can articulate...so yeah it's important to have...for us to have who your clients were while you were in the Corp. Counsel...but the way that the wording will work is that it's going to allow us to articulate that it's the phraseology here specific cases, proceedings, contracts, applications or pending legislation within the context of representing those clients that you had responsibility for inside...right...so that allows us to say okay and then you can very clearly say if you have one where you are representing somebody before Windward Planning Commission for example you are...You know but something that's come up after and you never had anything to do anything that has to do with the specific case or proceeding well then you just have to make that known to the...you'll follow Rules of Professional Conduct on that and within...and because this is within the twelve months...you know you say this...I didn't have any connect with this. This is an entirely new situation so the representation...I haven't been directly...and the opinion would allow you to say you know...you weren't directly concerned with any of that...it wasn't under active consideration and you didn't obtain information not available to the general public because frankly it wasn't available 72 to anybody because it hadn't started yet. Still need to have...am I making... Mr. Goodenow: I agree and I think you're right though I'm a little concerned and maybe I'm just nitpicking here or maybe it's not really a problem but for example. You know...information which...it's not...which is not available to the general public by law...I mean the term by law is funny...but I mean there are internal memorandums in the planning department regarding water variances for example...you know I remember there's always one by Chris Yuen we would always have to look to about getting a variance to a...catchment and the rainfall thing totals that...I don't know if it's restricted by law...but it certainly not available and I mean is there a problem with that...I mean...you...you know in representing the Planning Commission...you've dealt with a lot of other cases...information of other...in other cases that you know may have some kind of precedential value maybe or these types of internal memorandum in the department. Could that be an issue if you do it before one year after year of course not? After one year its clear...do what you want. Mr. Patel: Exactly...so I guess let me step back...so with regard to twelve month issue...what we're specifically asking is...it's more of a clarification. So we're asking for clarification that as long as the criteria in 2-91.2(b) are met... Mr. Goodenow: Meaning one, two and three or.... Mr. Patel: And the rest of it...all of it basically...as long as that subsection b...as long as the criteria are met...it's not an absolute the twelve month provision is not an absolute bar to us to representing anyone by virtue of twelve months having not yet expired. Mr. Adams: Twelve months is a threshold. Right. Twelve months is our timeline right in this case it's still July 22, 2017 now right. Mr. Patel: Right. Mr. Adams: So it's less than that... Mr. Patel: Right. Mr. Adams: But that's just the timeline that these things have to be...met within. 73 Mr. Patel: Right. Mr. Adams: So as long as you're doing "b" you know 2-91.2(b) you know just continue doing that until July 22. Mr. Patel: Right...exactly so it seems a little weird that we're asking if you know...so I see where the confusion on our part...might have been provided is if you look at that subsection...it seems clear right. As long as you meet the criteria...at twelve month bar does not apply as long as you meet the criteria. After twelve months it doesn't matter right that section doesn't apply. Mr. Adams: Right because you no longer subject to... Mr. Patel: Exactly. Mr. Adams: The Board of Ethics jurisdiction. Mr. Patel: So the reason we're seeking the informal opinion and clarification is in an abundance of caution we don't want to put ourselves or you know any future potential client in the position to where someone comes in...looks at this provision and says regardless of what subsection these says as accepting the twelve month prohibition...the fact is and I'm saying hypothetically if someone were to argue...they would argue that the twelve month prohibition is absolute bar in and of itself. Mr. Adams: Yeah which it's not. Mr. Patel: Right so with regard to the twelve months...that's all we're asking for as far as clarification. Mr. Adams: Okay I get it. You don't need all that stuff that I was saying. What you want is you just want us to make sure that...we just need say that...that you will....the opinion is as long as you abide by the provisions of 2-91.2(b)(c) that you're able to practice law in accordance with laws and rules of the State of Hawai`i and our State Bar Association. Mr. Patel: The code...yeah. Mr. Adams: July 22, 2017. Mr. Goodenow: I guess do you really need us...we're just gonna quote the code back right. 74 Mr. Adams: That's what we're gonna do...I mean.... Mr. Robinson: That's why we have five lawyers in room and now we can't.... Mr. Goodenow: Well... Ms. Kahakalau: But it would just provide that extra... Mr. Patel: Just the clarification that that twelve month provision is not an absolute bar. Mr. Adams: Right. Mr. Goodenow: Right. Ms. Kahakalau: I think that there is a reasonable...there's a reasonable piece there because people could very...you know it definitely says general twelve month prohibition and when somebody just reads that part...they could very easily just to the conclusion that there is an issue...but. Mr. Adams: See we got this piece of paper. Ms. Kahakalau: Having the opinion will immediately just take that off the table kind of thing. Mr. Goodenow: Right...but it still would be a case by case basis for you to determine. Mr. Patel: Exactly. Mr. Adams: If I could just ask...in that last line before...in the last line of 2- 91.2(b)...former officer or employee may assist a governmental entity in relation to such matters meaning the matters above right...if requested by authorized governmental personnel for official purposes. You're understanding of authorized governmental personnel...that's not for example...I'm not an authorized government personnel right...but Ku is right as Chair...right...okay. Mr. Patel: Right and then for our purposes that would be more akin to if a department had asked us and the department head had authorized our input basically. Mr. Adams: Right. 75 Ms. Kahakalau: Do we have any further comments or questions if not... Mr. Adams: I'm sure we have attorneys on board so I'm sure we do...better for us to keep moving forward. Mr. Goodenow: It sounds pretty straight forward if all we're doing is... Mr. Adams: Is abiding by"b" and "c"...right. Mr. Goodenow: Now then do we have a motion pending... Mr. Adams: We do. Ms. Kahakalau: We do...we have a second so then if there's no further discussion... Mr. Adams: No it wasn't to dismiss. Mr. Robinson: It wasn't to dismiss...there would be no finding of... Mr. Adams: Conflict of interest. Ms. Kahakalau: Conflict of interest. Mr. Goodenow: If they provide or.... Mr. Adams: Would you be amenable to a friendly amendment? Mr. Robinson: Yes...absolutely... Mr. Adams: See if I can get this straight. I move that the Board finds that Jennifer Ng and Danny Patel former employees of the County of Hawaii until July 22, 2016 may conduct their business as attorneys within the State of Hawai`i as long as they abide by section 2-91.2(b)(c) through July 22, 2017. Mr. Goodenow: Maybe you could say that one that there is no prohibition of them providing services for the County or government agency and two there's no prohibition for that time period as long as... Mr. Adams: As long as they abide by section 2-91.2(b). That's fine. Got that Emily? Ms. Kahakalau: Yeah I was gonna ask if we have that...amended motion. Ms. Hirayama: Yeah I have it recorded. 76 Mr. Adams: I spoke very loudly into my mic. Ms. Kahakalau: Go ahead J. Mr. Yoshimoto: So Board members in the findings I will make clear that the twelve month timeline mentioned is not a standalone basically... Mr. Goodenow: Absolute. Mr. Yoshimoto: It works together with provisions one, two and three in subsection "b" of 2-91.2. Mr. Goodenow: Thank you. Mr. Adams: Thank you. Mr. Adams: So that would be the friendly amendment. Ms. Kahakalau: Yes. So we're good then with the second... Mr. Adams: We haven't seconded yet. Ms. Kahakalau: Okay. Mr. Goodenow: I'll second it. Ms. Kahakalau: Alright so we have it second...we have any further discussion. Mr. Adams: We voting on the amendment? Mr. Goodenow: No as is. Ms. Kahakalau: No it was a friendly amendment we're letting it stand as the original motion. Mr. Adams: Okay. Ms. Kahakalau: If that's alright and we have a second...do we have any further discussion? If not I'll call for the question...all in favor say aye...any oppose? So that motion is carried. Thank you. Mr. Adams: Thank you for allowing us to figure this out. Motion and Vote: Mr. Adams moves that the Board fmds that Jennifer Ng and Danny Patel former employees of the County of Hawaii until July 22, 2016 may conduct their business as attorneys with no prohibition of them providing services for the County or government agency during that tit time period within the State of Hawaii as long as they 77 abide by section 2-91.2(b)(c) through July 22, 2017. Mr. Goodenow seconded the motion. All members voted aye. **Review of Petition No. 2016-14 ** 5. UNFINISHED BUSINESS a. Petition No. 2015-10: Review of petition alleging that a County Officer or employee is in violation of Sections 2-83 (Fair Treatment), 2-84 (Conflict of Interest), 2-91.3 (Lobbyist Registration), and 2-91.4 (Gifts) of the Code of Ethics because he was influenced and accepted gifts by an unregistered lobbyist organization. (Continued) Mr. Adams: The reason this is been returned by the Call of the Chair I assume is that the last time we dealt with this...we had a vote on...we had a motion...we had a vote on a motion...that we deadlocked and so we had two and two and a recusal and that left this issue in...we didn't dismiss it and we couldn't move forward. It was in bureaucratic purgatory. Mr. Yoshimoto: That's correct. So Board members as preliminary matter. The parties are not here even though they were notified. There was a mix up in the dates as far as the date of today's hearing so we notified everyone of that situation because one of the parties could not be here due to travel previous scheduled travel so the parties are not here so the Board has several options...the Board could of course continue this the next hearing which would be November or as member Adams just mentioned we kind of know where we're at so...but the parties do actually I mean have a right to be here and... Mr. Adams: Was there a desire to be here? Ms. Kahakalau: My understanding was that they were both planning on being here...as far as this for future discussion and one would've been here today...but the other one because of the date...we sent the wrong dates couldn't be here so in fairness to both parties...I would say...I would favor continuation until they both can be here and we can resolve it. Mr. Robinson: Just for me if could. The questions really becomes is anyone gonna change their vote more than anything unless they have 78 additional evidence to present that would influence us in either direction and do either one of them have any additional evidence? Mr. Yoshimoto: Well no...they don't have any additional evidence...but as this issue was novel to me and to this Board. I remember when we talked about the motion to dismiss and a tie tie motion to dismiss...the dismissal fails right...but in doing the research...if there was a motion to sustain the petition and vote ties in a two tow then the petition fails because the motion isn't carried so that's just the interpretation of Robert's Rules and this has happened before in the past were when the Board has tied and a motion to sustain and the petition fails or... Mr. Adams: We didn't vote it that way... Mr. Yoshimoto: Correct. That was yes. That was the problem with the motion to dismiss...but that's something the Board can decide when it comes up again. Mr. Robinson: Okay. Mr. Adams: I would only if I might. I would point out that there may be some change as well that occurred at the judicial level in consideration of...what's a gift. Mr. Goodenow: Right. Mr. Adams: So that's a potential conversation when we bring it back up. Okay. Ms. Kahakalau: So do we have a motion to continue. Mr. Goodenow: So moved. Mr. Robinson: Second: Mr. Goodenow: Shall we just say the next meeting? Mr. Adams: We want to say November? Mr. Goodenow: Or shall we say December? Mr. Adams: November's gonna be...we'll need dinner too. Mr. Goodenow: I move that we continue this matter to the November meeting. Ms. Kahakalau: Do I have a second. 79 Mr. Robinson: Second. Ms. Kahakalau: Any further discussion? Any opposed. Motion and Vote: Mr. Goodenow moved to continue this matter to the November meeting. Mr. Robinson seconded the motion. All members voted aye. b. Petition No. 2016-13: Request for an informal advisory opinion from a spouse of a County officer or employee, to determine whether there would be any conflict of interest with him being able to bid for County of Hawaii projects because his wife is employed as a Contracts Tech in the Department of Public Works. (Continued) Mr. Adams: And our...she wasn't able to get off work or we don't know. Ms. Kahakalau: And there's also a continued... Ms. Hirayama: They were notified of the date. I sent them a letter again. I did not receive any notifications via email or letter that they weren't going to appear or withdrawing the petition. Mr. Adams: I would move that we continue this to our next meeting. Mr. Robinson: Second. Ms. Kahakalau: Any further discussion? All in favor say aye. Any oppose. Mr. Adams: Just let them know...I mean if they don't show up next time that won't be my motion. I get that things can happen...but at least communication. Ms. Kahakalau: Communication. I agree. Motion and Vote: Mr. Adams move to continue the petition to the next meeting. Mr. Robinson seconded the motion. All members vote aye. c. Petition No. 2016-12: Review draft informal advisory opinion regarding a petition from a County officer or employee, to determine compliance with Section 2-83 (c)(1) of the Hawai`i County Code because her husband is an independent contractor who would like to submit an invitation for bid for Parks & Recreations Project No. 3453. Mr. Robinson: So we need a motion to accept the advisory opinion. I make a motion to accept the advisory opinion as written. Mr. Adams: Second for the purposes of discussion. 80 Ms. Kahakalau: Okay...any discussion. Mr. Adams: I do as a matter of fact. So as I look at paragraph 9, 11 and our conclusion of law...it occurs to me that Mark O'Dell is not the County employee. So there isn't a conflict of interest for Mark O'Dell because he's not the County employee. It's Naomi O'Dell who's the County employee so I think maybe and I went back and looked at the minutes and we were not clear. So...maybe something that phrases it so that there's no conflict of interest Naomi O'Dell if Arborist Services, LLC which is the business that her husband owns she does the books for I guess. How do it say it...for Naomi O'Dell...if and when Arborist Services, LLC submits a bid with the County of Hawaii, Department of Parks & Recreation under the County code of ethics. Now I understand that they've contracted so maybe we also need to have some type of comment in there they submitted a bid and contract for goods and services if the bid winner. Something that gets both the bid piece and the contract piece in there is the thought. So and 11 should say essentially the same thing cause that's the motion. The Board finds no conflict of interest for Naomi O'Dell if and when Arborist Service, LLC submits a bid with the County and contracts for goods and services if bid winner. And then the conclusion of law...reiterate the same phraseology. I think it's just...it's cleaner...it also identifies who the conflict of interest is with. Mr. Robinson: As it relates to the County employee...right. Mr. Yoshimoto: That makes sense. Ms. Kahakalau: So what I'm hearing then is we're gonna send it back and then review at the next month's agenda with the revisions. Mr. Goodenow: I move that we continue it to the next meeting. Mr. Robinson: Second. Ms. Kahakalau: Any further discussion? All in favor say aye. Any oppose? Alright. Motion and Vote: Mr. Goodenow moved to continue order to the next meeting. Mr. Robinson seconded the motion. All members voted aye. Ms. Kahakalau: We're going into executive session to review the executive session minutes of September 13 and also to review some of the confidential financial disclosure forms. We have four of those. 81 Mr. Yoshimoto: We need a motion to get in to executive session. Mr. Goodenow: I moved that we go into executive session for the reasons stated by the Chair. Mr. Robinson: Second. Motion and Vote: Mr. Goodenow moved to go into executive session. Mr. Robinson seconded the motion. All members voted aye. 2:35 p.m. The Board moved into executive session. 2:43 p.m. The Board returned into regular session. 6. VOTING ON EXECUTIVE SESSION MATTERS a. Review of the executive session minutes of September 13, 2016. Ms. Kahakalau: If we could have a motion to approve or... Mr. Robinson: Motion to approve the executive session minutes. Mr. Goodenow: Second. Ms. Kahakalau: Any further discussion...executive session minutes? Motion and Vote: Mr. Robinson moved to approve the executive session minutes of September 13, 2016. Mr. Goodenow seconded the motion. All members voted aye. b. Review of Confidential Financial Disclosure Forms filed pursuant to Section 2-91.1(d), Hawaii County Code, by County board and commission members and designated County employees, where personal matters will be reviewed. Motion and Vote: Mr. Adams moved to accept the confidential financial disclosure form as reviewed. Ms. Kalele 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 HAWAII Mr. Adams: Seeing that it's 2:45...1 would suggest that we dispense with discussion and move any discussion to whatever time we have reminding in November which would be none and probably will be in December. 82 Mr. Robinson: I agree. Mr. Adams: But it should stay on the agenda for November. Mr. Goodenow: Alright. Ms. Kahakalau: Do we need a motion for that anyway? Just keep on going. 8. DISCUSSION REGARDING AMENDMENTS TO THE BOARD OF ETHICS MONTHLY MEETING SCHEDULE. Ms. Kahakalau: Changes to the monthly meeting schedule. Mr. Adams: So right now we have in December...because that's what we're looking at is gonna be on Tuesday? I had mine scheduled for Tuesday because I assumed Kenny will be busy on Wednesday. Tuesday the thirteen....December the thirteenth. Mr. Goodenow: December the thirteenth. Mr. Adams: We've already decided on it. Mr. Kahakalau: The ninth... Mr. Goodenow: You know what I may be at the conference of governmental ethics....the State pays a commissioner....campaign spending commissioner to go...but really it deals more with ethics issues so I hope I can provide some material for you all and let me double check that...I believe I leave on the tenth of December. I will be gone on the thirteenth. I return on the fifteenth... Mr. Yoshimoto: Did you want to do it on the seventh? Or the sixth? Mr. Goodenow: I'm free on the seventh or the sixth. Ms. Kahakalau: I think it would have to be the Tuesday...the sixth. Mr. Goodenow: Maybe better to have earlier in case there's some unfinished business we have to attend to. Mr. Adams: The fifth is when they'll do the...But the sixth should be clear reasonable clear day. Ms. Kahakalau: That's a Tuesday. That works for me. Sixth for our December meeting and November 9`h for our upcoming meeting next month. 83 Mr. Goodenow: Could I ask just procedural question if another date in November is needed...that would be what a special meeting? And then we could announce it at the November 9`h meeting and that would fulfil all our notice requirements? Is that correct? Ms. Kahakalau: It would probably have to be within a certain amount... Mr. Yoshimoto: The seven days to post. Mr. Goodenow: Seven days to post. Mr. Yoshimoto: We would need that lead time... Ms. Kahakalau: But since it's early in November that wouldn't be a problem...if we had to do it lets say... Mr. Adams: We could always hold it on the fourth Thursday of the month. No problem...they should be wide open... 9. ANNOUNCEMENTS Ms. Kahakalau announced the Board's next meeting on December 6, 2016 at 10:00 a.m. at the Hawai`i County Building, Council Chambers, 25 Aupuni Street, Hilo, Hawaii 96720 or at another location to be determined. 10. ADJOURNMENT Ms. Kahakalau adjourned the meeting at 2:47 p.m. Respectfully submitted: F., Emily Hi a, Secreld 84