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HomeMy WebLinkAboutPlanning CCC 101017 MinutesKAUA'I PLANNING COMMISSION CONTESTED CASE CALENDAR October 10, 2017 The contested case calendar of the Planning Commission of the County of Kaua'i was called to order by Chair Keawe at 9:33 a.m., at the Lihu'e Civic Center, Mo'ikeha Building, in meeting room 2A -2B. The following Commissioners were present: Chair Kimo Keawe Ms. Donna Apisa Mr. Wade Lord Mr. Sean Mahoney Absent and Excused: Vice Chair Roy Ho Ms. Kanoe Ahuna Ms. Glenda Nogami Streufert The following staff members were present: Office of the Prosecuting Attorney — Deputy Prosecuting Attorney Ramsey Ross; Planning Department — Commission Secretary Leslie Takasaki; Office of Boards and Commissions — Commission Support Clerk Darcie Agaran Discussion of the meeting, in effect, ensued: Chair Keawe called the Contested Case Calendar to order at 9:33 a.m. CALENDAR Hearin on n Objection to County Attorney as Legal Advisor to Planning Commission pertaining to: Kirby B. Guyer and Milton Searles' Application for a Use Permit, Special Management Area Permit and Class IV Zoning Permit on Property Situated at Hd'ena, Kauai, Hawaii identified by Kauai TMK No. (4)5-8-012:22 containing a total area of 11,827 sq. ft. [Deferred 12/13/16, deferred 2/28/17.1 John R. Hoff Trust and Lorna E. Hoff Trusts' Appeal Decision of Planning Director Relating to the Notice of Violation and Order to Pay Fines Related to Use Permit U- 2015-28, Special Permit SP -2015-9 and Class IV Zoning Permit Z -IV -2015-29 on Property Situated at Lawa`i, Kauai, Hawaii, identified by Kauai TMK No. (4) 2-5-005: 080 CPR Unit 1 containing a total area of 1.032 acres (contested case files CC -2015-18, CC -2016-7) [Deferred 12/13/16, deferred 2/28/17.1 Llovd R. Fischer and Shirlev E. Fischer's Petition to Appeal Decision of Planning Director Relating to the Forfeiture of Non -Conforming Use Certificate TVNCU #5003 for Property Situated at Kekaha, Kauai, Hawaii, identified by TMK No. (4)1-3-001:88 containing a total area of 12,453 sq. ft. (contested case files CC -2016-9, CC -2016-10) [Deferred 12/13/16, deferred 2/28/17.1 Todd Schirm's Petition to Appeal Decision of Planning Director Relatingto o the Forfeiture of TVNCU # 5138 (Hale Cook) for Failure to Renew for Property Situated in Wainiha, Kauai, Hawaii, identified by Kauai TMK No. (4)5-8-009:8 CPR Units 1 and 2 containing a combined total area of 11,250.0 sq. ft. (contested case file CC -2015-24) [Deferred 12/13/16, deferred 2/28/17.1 Brysone K. Nishimoto and Catherine J Nishimoto's Petition to Appeal Decision of Planning Director Relating to the Forfeiture of TVNCU #1171 (Ivy's Place) for Failure to Renew for Property Situated in Wainiha, Kauai, Hawaii, identified by Kauai TMK No. (4) 5-8-004:26 containing 8.343 acres (contested case file CC -2015-23) [Deferred 12/13/16, deferred 2/28/17.1 Michael Chandler's Petition to Appeal Decision of Planning Director Relatingto o the Forfeiture of TVNCU # 4222 (Hale O Lani) Related to Special Permit SP -2012-1 for Failure to Renew for Property Situated at 3239 A Kalihiwai Road, Kilauea, Kauai, Hawaii, identified by TMK No. (4)5-3-003:45 containing an area of 74,923 sq. ft. (contested case file CC -2016-4) rDeferred 12/13/16, deferred 2/28/17.1 John Wark and Shannon Wark's Petition to Appeal Decision of Planning Director Relating to the Forfeiture of TVNC #4219 (`Anini Kai) related to Special Permit SP - 2011 -13 for Failure to Renew for Property Situated at 3525 `Anini Road, Kilauea, Kauai, Hawaii identified by TMK No. (4)5-3-004:29 containing an area of 13,608 sq. ft. (contested case file CC -2016-5) [Deferred 12/13/16, deferred 2/28/17.1 Parnell H. Kaiser and Michele L. Kaiser's Application for a Use Permit, Special Management Area Permit and Class IV Zoning Pen -nit on Property Situated at Hanalei, Kauai, Hawaii, identified by Kauai TMK No. (4)5-5-004:15 containing a total area of 6,046 sq. ft. (contested case file CC -2015-15) [Deferred 12/13/16, deferred 2/28/17.1 Michael Levy and Alexis Boilini, Trustees of the Levy-Boilini Living Trust's Petition to Appeal of Planning Director; and Application for a State Special Permit, etc., TMK No. (4)26001091, Lawa`i, (Consolidated Cases) by (contested case CC -2015-14, CC -2016-1) [Deferred 12/13/16, deferred 2/28/17.1 Steven and Eddi Henry Petition for Appeal of Decision of Planning Director; and, Application for a State Special Permit, TMK No. (4)49011038, Moloa`a (contested case file CC -2016-11) (Deferred 12/13/16. deferred 2/28/17.1 William L Cowern and Catherine F. Cowern's Petition to Appeal Decision of Planning Director; and, Application for a State Special Permit, etc., TMK No. (4)25002037, Lawa`i (Consolidated Cases) (contested case files CC -2015-17, CC -2016-2) [Deferred 12/13/16, deferred 2/28/17.1 Anthony S. Bardin's Petition to Appeal Decision of Planning Director Relating to TVRNCU #1225 for Property Situated in Hanalei, Kauai, Hawaii, identified by Kauai TMK No. (4)5-5-010:39 containing 5,654 sq. ft.) (contested case file CC -2013-83) [Deferred 12/13/16, deferred 2/28/17.1 Grez Allen, Sr., and Greg Allen, Jr. 's Petition to Appeal of Violation and Levy of SMA Fines Involving Property Situate in Kilauea, Kauai, Hawaii, identified by Kauai TMK No. (4)5-3-007:14, and containing a total area of 16,552.0 sq. ft. (contested case file CC - 2015 -4) [Deferred 12/13/16, deferred 2/28/17.1 Thomas J. Brooks and Jennifer S. Brooks' Petition to Appeal Decision of Planning Director Relating to the Forfeiture of Non -Conforming Use Certificate TVNCU #4291 (Pohaku), TMK No. (4)58008021, Hd'ena, Kauai. (contested case file CC -2017-1) jReferred to Hearings Officer 1/24/17.1 Alexandra FalkLiving Trust's Petition to Appeal Decision of Planning Director Relating to the Forfeiture of Non -Conforming Use Certificate TVNCU #4298 (Hale Mahana), TMK No. (4)5-8-010:15(3), Hd'ena, Kauai. (contested case file CC -2017-2) Petitioner Alexandra Falk Livinz Trust's Petition to Appeal Decision of Planning Director Relating to the Forfeiture of Non -Conforming Use Certificate TVNCU #4299 (Lihi Kai), TMK No. (4)5-8-010:15(1), Hd'ena, Kauai. (contested case file CC -2017-3) Chair Keawe: I would like to state for the record that Commissioners Donna Apisa, Wade Lord, Sean Mahoney, and Kimo Keawe are present. Attorneys, we are here on the calendared matter regarding the item on the September 12, 2017 Contested Case Hearing Meeting Agenda where an objection raised by Mr. Chun was agreed to by all parties to be considered a motion whereby the Appellants were asked to brief the objection and the Department was asked to submit their opposition. Commissioners, do you have the documents? I understand that there are some new filings that just came in this morning. The first one was the September 15th [sic] joint filing by Misters Chun, Edwards, and Kugle. The second one was the October 6th joint filings by the County Attorneys representing the Department. And then we have two (2) new filings. Number one is Hearing on Objection to County Attorney as Legal Advisor to Planning Commission. This has to do with ... where is Mr. Chun? Mr. Chun, can you come forward quickly, please, so you can explain what this is? Unfortunately, we are not attorneys. This was the Alexandra Falk withdrawal of motion to disqualify. Mr. Jonathan Chun: Oh, yes. On behalf of Alexandra Falk, we made a motion to disqualify; just like all the others. Chair Keawe: Right. Mr. Chun: But then subsequent to that, the County Planning Department appointed Nadine Ando as the Hearings Officer, not Mr. Kimura. So based upon that, we withdrew the motion because it had nothing to do with Mr. Kimura anymore. Chair Keawe: Alright. Mr. Chun: And that was filed back in August, I think. Chair Keawe: Okay. Mr. Chun: So I just made a point to say, you know, on all these hearings regarding that, Ms. Falk has withdrawn her motion to disqualify Harlan because he is not the Hearings Officer for her. That's what it is. And I think the Commission or the Department just amended the agenda to snake sure that it was taken out because I did not want anybody confused, like, I thought Ms. Falk withdrew her motion, why is this— Chair Keawe: It is confusing enough, Mr. Chun. Alright, so— Mr. Chun: So that's what is going on, Ms. Falk— Chair Keawe: And this was a result of the new appointment on a Hearings Officer. Is that right? Mr. Chun: Yes, Ms. Falk's Hearings Officer is Nadine Ando, not Mr. Kimura. Chair Keawe: Alright, thank you. Commissioners, the next item is a stipulation requesting reassignment of cases to a new Hearings Officer, which is what Mr. Chun was alluding to. Can I have someone from the County come up, please? If you can identify yourself. First Deputy Attorney Matt Bracken: Matt Bracken, First Deputy County Attorney. Chair Keawe: Okay, Mr. Bracken, go ahead. Can you tell us what we are looking at? Mr. Bracken: This is a stipulation for only three (3) of the cases of the many cases that are before you today. But in three (3) of the cases, the Planning Department and the Petitioners in those cases have agreed to reassign those cases, or we are going to request that the Commission reassign those cases to the new Hearings Officer, which would essentially take them out of this process; you would not have to... Chair Keawe: Alright. We still have several more that are still in the process, if I understand. Mr. Bracken: Correct. This would only be just for three (3) of them. Chair Keawe: Alright. E Mr. Bracken: The other ones remain. Chair Keawe: Okay, thank you. Mr. Bracken: Thank you. Chair Keawe: Commissioners, you all got that? Alright. Counsels, can you come up and have a seat and introduce yourselves, please? All of you. Mr. Barry Edwards: Good morning. I am Barry Edwards and I am the person who signed the stipulation to reassign the cases to Nadine Ando. Because of that, this morning's proceedings — assuming you would approve the assignment — our participation in this morning's proceedings, the motions, and so forth would no longer be in effect. They would be, what is called, moot. Chair Keawe: Right. It is moot because of the assignment of a new Hearings Officer. Is that correct? Mr. Edwards: Yes. Chair Keawe: Now, is that only for the clients that you represent, Mr. Edwards? Mr. Edwards: Yes, just those three (3) cases. Chair Keawe: Alright. Okay, Mr. Kugle, can you introduce yourself and tell me who you represent? Mr. Greg Kugle: Yes, Chair. Thank you. My name is Greg Kugle and I represent two (2) of the cases before you this morning; the Allen case and the Bardin case. Chair Keawe: Alright. And that is still moving forward this morning. Mr. Kugle: It is. Chair Keawe: Alright. Mr. Chun. Mr. Chun: Thank you. Jonathan Chun on behalf of my clients who are still going and that would be the Hoff s, Fischer's, Schirm, Mr. Nishimoto, Kirby Guyer, Chandler, Wark, Kaiser, and — Sutherland, I think, is off now — so those are my clients that I have right now. Chair Keawe: Alright, thank you. Ms. Tumbaga. Deputy County Attorney Teresa Tumbaga: Good morning. Teresa Tumbaga, Deputy County Attorney on behalf of the Planning Department for the Steven Henry and Eddi Henry Case No. CC -2016-11. Chair Keawe: Okay. Mr. Bracken. Mr. Bracken: Matt Bracken for the Planning Department. I represent the Planning Department in the Hoff case, the Allen case, and the Cowern case. Chair Keawe: Okay. And you are? Deputy Attorney Sinclair Salas-Ferguson: Deputy County Attorney Sinclair Salas- Ferguson and I represent the Planning Department for Item No. 3 -Fischer, Item No. 4 -Todd Schirm, Item No. 5-Nishimoto, Item No. 6 -Chandler, Item No. 7-Wark, Item No. 9-Boilini, No. 12-Bardin, and No. 14 -Jennifer Brooks. Chair Keawe: Okay. Go ahead. Deputy County Attorney Mark Bradbury: Good morning. Deputy County Attorney Mark Bradbury. Chair Keawe: Mr. Bradbury, yes. Mr. Bradbury: I am here on behalf of the Planning Department on No. 8 -Kaiser. Chair Keawe: Okay. County Attorney Mauna Kea Trask: Aloha, Honorable Chair and Cominission Members. For the record, County Attorney Mauna Kea Trask on behalf of the Department in the Guyer matter; Guyer and Searles. Chair Keawe: Okay. Are there any additional exhibits that we have not received that you would like to present at this time? If none, let's proceed. Counsel, I will give the Appellants collectively fifteen (15) minutes to speak. Now, I need to... Are you individually speaking for each of your clients? Meaning, are we going to try to consolidate some of that, as far as arguments are concerned? Mr. Edwards. Mr. Edwards: Chair Keawe, it is my hope that you will approve the reassignment that we have asked you to approve and I can be on my way. (Laughter in background) I do not need to argue these cases. Chair Keawe: Well, let's get that out of the way. (Laughter) Okay, Commissioners, let's see. We have Exhibit No. 2, which is the stipulation requesting reassignment of cases (to) a new Hearings Officer. Do you all have that? At this point, I would entertain a motion to receive and approve the stipulation. Ms. Apisa: I would move to approve the stipulation. Chair Keawe: Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded. Any further discussion on this particular exhibit or item? If not, can I have a roll call vote, please? Deputy Prosecuting Attorney Ramsey Ross: Lord. Mr. Lord: Aye. Mr. Ross: Mahoney. Mr. Mahoney: Aye. Mr. Ross: Apisa. Ms. Apisa: Aye. Mr. Ross: Keawe. Chair Keawe: Aye. Four (4) votes. Motion carries 4:0. Mr. Edwards: Thank you, Mr. Chair. Chair Keawe: You are on your way, Mr. Edwards. Thank you. Mr. Edwards: Thank you very much. Mr. Chun: Mr. Chair, if I may, you were asking— Chair Keawe: Yes. Mr. Chun: Before you guys took that action, I think the question you asked is whether we are representing individual clients or collectively. I think, at this point in time, we are representing individual clients and so I would think, as far as Kirby Guyer, I would need to have that fifteen (15) minutes because if you look at the County's memo in opposition, they spend most of their time on Kirby Guyer's case and very little, if any, on my other cases. Chair Keawe: I guess my question, Mr. Chun, is are you going to need to make separate arguments for each of your clients and does Mr. Kugle have to make separate arguments for each of his clients? I am trying to manage the time. Mr. Chun: I think for Kirby it would have to be separate. Everybody else — (the) other clients would probably be wrapped up into just one (1) argument for them. Chair Keawe: So you will make two (2) separate arguments? Mr. Chun: Well, I am going to try to make as many in common, but I just wanted to let you know that for Kirby, they were picking on Ms. Kirby Guyer in their memo and I need to spend a VII little bit more time as to that, and then my other points I make will apply equally to the other clients. But I just wanted to give you a heads up that, as far as the Kirby Guyer matter, d would have to spend more time on that. I will, then, segue into common arguments for all of them, but I just wanted to let you know how that is going to— Chair Keawe: Okay. My point is I want to try to consolidate as much as we can. Mr. Chun: Yes, and I will try to do that. Chair Keawe: So I ask (for) your efforts in trying to do that. Mr. Chun: Yes, I will try to do that. I do not want to repeat the same thing for other clients after Kirby. Chair Keawe: Yes. Mr. Chun: So, like I said, at a point in time when we are finished with Kirby, I can just say, this will apply to everybody. Chair Keawe: Alright. Mr. Kugle. Mr. Kum Yes, thank you, Chair. We had always wanted to do this process as streamlined as possible and to avoid duplicative arguments. Chair Keawe: Right. Mr. Kugle: So we will simply follow Mr. Chun and incorporate everything he said by reference with respect to my two (2) clients. To the extent I need to say anything, it would be both brief and would be dedicated to any factual differences that the Planning Department raises with respect to each of those two (2) — Mr. Bardin or Mr. Allen — in which case I would address that specifically. But otherwise, I think there are some overarching legal arguments that apply to everybody. Chair Keawe: Alright. Mr. Kugle: And I do not intend to repeat everything that Mr. Chun says. Chair Keawe: Alright. Mr. Trask. Mr. Trask: Thank you, Chair. On behalf of the Department for Guyer, like Mr. Kugle said, we have always tried to streamline this as efficiently as possible and work with the Petitioners as well as the Commission; however, apparently in doing so, we found ourselves in this situation today. So in order to make things more clear, given the way that the Department's consolidated opposition is fashioned, I believe the first argument talks about the applicability of the alleged due process violations— Chair Keawe: Right. Mr. Trask: —could be removed or only should apply to one (1) case and that is the Guyer case. So I would request on behalf of the Department that the other cases be handled first; the other deputies can talk, Mr. Kugle can talk, Mr. Chun can talk. And then we handle Guyer separately and whatever overarching arguments apply in the other cases, given that they haven't started yet, given that they have less of a record, they can be applied to the Guyer case which will follow singularly after the remaining, I believe, ten (10) cases at this point proceed first. Chair Keawe: Alright. Mr. Trask: I'm sorry. Also, for the record, I would like to note Deputy County Attorney Morimoto is not here and you are not being advised— Chair Keawe: I'm sorry. I couldn't hear you. Mr. Trask: At this point, I just want to note for the record that Deputy County Attorney Morimoto is not advising you at this hearing and that you are being advised by an attorney who is not an employee of the County Attorney's Office. Chair Keawe: Okay. So we agree to the process. Anyway, we are talking about fifteen (15) minutes. I will give the Appellants an additional five (5) minutes for rebuttal. Subject to the call of the Chair, counsel will not be allowed to reserve time. I will, then, allow for commissioner questions. If everyone is in agreement, we can go ahead and proceed. Mr. Chun: Would that be fifteen (15) minutes between both of us? Chair Keawe: That was my question, Mr. Chun. Initially, that is what I was getting at. Now, each of you are going to have fifteen (15) minutes for each of your clients. I would like to try to consolidate that so we don't have three (3) hours for eight (8) clients or whatever it is. Mr. Chun: No, for myself, Mr. Chair, fifteen (15) minutes for ... I mean, I would agree with Mr. Trask suggesting we just take everything else but Kirby first. Fifteen (15) minutes would be more than enough time for all of my clients. Chair Keawe: Alright. Mr. Chun: That would be fine if we do it as Mr. Trask suggests, which I think would be a good way of handling it; do everybody else first and then do Kirby Guyer later on. Chair Keawe: Alright. Mr. Kugle, do you agree? Mr. Kugle: I agree with that, yes. Chair Keawe: Alright. Okay, let's proceed. 0 Mr. Chun: Are we going to do the motion first? The motion on the disqualification of the County Attorney's Office; the objection, I guess. Because there were two (2) matters and I think the County's memo addressed that one. Correct me if I'm wrong, Mauna Kea, whether we would do separate arguments for that motion and then separate arguments for the arguments to disqualify Harlan Kimura. Mr. Trask: For the record, Mauna Kea Trask, County Attorney. It is our belief that we are only addressing the due process objection argument that was raised in the June 30th letter— Mr. Chun: Okay. Mr. Trask: —today. Chair Keawe: That was my understanding, Mr. Chun; we are only addressing the objection that was raised at the last meeting. Mr. Chun: Are we going to address the overall motion? Mr. Trask: I think, given that Mr. Edwards has left, I would think no. Mr. Bracken: He is no longer a part of that. Mr. Trask: Oh, okay. Mr. Chun: Yes, he is not part of that. But after that objection is finished, are we going to, then, argue the Harlan Kimura issue? Later; I am not saying now, but later. Mr. Trask: I don't know. I would defer to the Commission. I mean, it is your agenda. Mr. Chun: That is why I am just asking. Chair Keawe: I would prefer to defer that portion of it. Mr. Chun: Oh. Chair Keawe: I (would) rather just hear the objection that was raised at the last meeting now. Mr. Chun: And then defer to a later date? Chair Keawe: Right. Mr. Chun: Okay. Understood. Chair Keawe: Okay. Who wants to proceed first? Mr. Chun or Mr. Kugle? Mr. Chun, go ahead. 10 Mr. Chun: (Laughter) The fingers are pointing to me. The Appellants have raised a question of whether or not the County Attorney can both advise the Planning Commission and also be an advocate in front of the Planning Commission. We have cited a very clear case — the Hawaii Supreme Court case "In re Water Application Permit" — which the Supreme Court severely questioned that practice by the State Attorney General and questioned whether or not, when that happens, whether it is a violation of due process and conflict. In that case, if you guys did read through that, the court said that the due process and the conflict of interest issues were resolved when the State Attorney General — at that time it was Margery Bronster — dismissed and withdrew her office's advice to the, at that point in time, the Water Commission. We have a similar situation over here and that is we had Mr. Trask argue, on behalf of the Department, all the motions in front of the Planning Commission and cross-examine all the witnesses on behalf of the Planning Department. So he was an advocate in front of the Planning Commission and now he has appointed or he had, at one point in time, appointed a Deputy County Attorney to advise the Commission; that is the same situation as the Supreme Court questioned in re Water Application. Now, that sets the table. What has happened now, and I have understood, is that another attorney is advising the Planning Commission. I want, for the record, I believe — and I don't know because I have never seen him, haven't introduced him — but I gather, according to the filing, that he is a Deputy Prosecuting Attorney, and I will assume that. But I wanted to point out that that does not solve anything and the reason why is that the Prosecuting Attorney's Office has a very clear authority to do certain things and it does not include advising the Planning Commission. That kind of question was asked years ago and answered by the Intermediate Court of Appeals in a case called Marsland versus Pang. In that case, Charles Marsland was the Prosecutor, tried to do a civil case; he had his Deputy Prosecuting Attorney file a civil case in court because ... for whatever reason. The parties objected to the Prosecuting Attorney's Office taking on authority or cases that didn't involve a criminal case and it went all the way up to the Intermediate Court of Appeals. The Intermediate Court of Appeals in Marsland versus Pang clearly stated that the Prosecuting Attorney's Office's authority and the Deputy's authority from that are limited to whatever the Charter says. In other words, they cannot do things beyond what the Charter authorizes them to do. Just remember, the Intermediate Court of Appeals very clearly stated that the Prosecuting Attorney's Office can only do what the Charter says they can do, expressly. Second point — years after that, in a case decided by the Hawaii Supreme Court in 2007, another prosecutor — Peter Carlisle at that point in time — tried to do something different, also. He wanted to have his deputies and his office money — his funds — used to support a ballot provision in front of the City and County of Honolulu. Taxpayers appealed. The Supreme Court held that the prosecutors don't have the authority to spend that kind of funds for non -criminal cases. Again, citing to the cases that the Prosecutor's Office can only be limited to what the Charter provides. I want to read to you what the Kauai County Charter provides for what the Prosecuting Attorney's Office can do, and that is found in Article IXA of the Kauai County Charter. The prosecuting attorney shall: (1) Attend all courts in the county and conduct on behalf of the people all prosecutions for offenses against the laws of state and the ordinances and regulations of the county; B. Prosecute offenses against the laws of the state under the authority of the attorney general of the state; C. Appear in every criminal case where there is a change of venue from the courts in the county, and prosecute the same in any jurisdiction to which the 11 same is changed or removed; D. Institute proceedings, or direct the chief of police to do so, before the district judge for the arrest of persons charged with or reasonably suspected of public offenses; and E. Draw all indictments and attend before and give advice to the grand jury whenever cases are presented to it for its consideration. That's all. There is nothing in here that says the Prosecuting Attorney has the authority or ability to advise a County Commission on other matters. Now, in their brief, in their Memo in Opposition, the County Attorney's Office opines that they are doing it under the authority of 23.14 of the County Charter which I will read to you. (Section) 23.14 says, "Coordination of Work. The mayor shall devise a practical and working basis for the cooperation and coordination of work by the various departments, eliminating duplication and overlapping of functions, and shall have the various agencies cooperate with each other in the use of employees, land, buildings, quarters, facilities, and equipment. The head of any department may empower or require an employee of another department, subject to the consent of the head of such department, to perforin any duty which such department head might require the employees of his or her department. Whenever in this charter power is vested in a department to inspect, examine, or secure data or information or to procure assistance from any other department, a duty is hereby imposed upon the department upon which demand is made to render such power effective." Now, the important part — if you want to look at 23.14 — is where it says, "The head of any department may empower or require an employee of another department, subject to the consent of the head of such department, to perform any duty which such department head might require the employees of his or her department." In other words, he can only require his employees to cooperate if it is within the powers of his department. The Prosecuting Attorney's Office's power is to do criminal prosecution. He cannot empower his employee to do something else. He cannot say employee, you be mayor for the day; employee, you be finance director for the day; employee, you be county attorney for the day. That is not what 23.14 says. It has to be within the powers of the Department Head to begin with, which he does not have. So when you combine what the Charter says, combine it with the Prosecuting Attorney, and combine it with the very clear instructions from the Intermediate Court of Appeals and the State of Hawaii Supreme Court — because this issue has come up before — the Prosecuting Attorney can only do what the Charter says he can do. He cannot go beyond that. So if you are going to be taking advice from the Prosecuting Attorney, be aware that that does not solve the problem; that just raises another question. Final question on that one is the Prosecuting Attorney is prosecuting, or is open, or being prepared to prosecute my client, also. I want to raise — for the record — that my clients, the Hoff s, were prosecuted by the Prosecuting Attorney's Office. The Prosecuting Attorney's Office did not follow through on that prosecution; a motion by the Hoff s criminal defense attorney was made to dismiss the entire case with prejudice. The Prosecuting (Attorney)'s Office, then, came in and filed their own motion to dismiss it without prejudice; meaning, they wanted to reserve the right to (inaudible) against my client again. So my client, now, is exposed to being prosecuted by the very office that is now advising you; another conflict of interest, another due process problem. So I believe the potential solution suggested by the County Attorney's Office is not a solution. It just raises more questions. One, they don't have the authority. Two, even if they did have the authority, they have their own conflicts because they are in preparation to suing my clients again in a criminal matter and that will be improper; having an advisor of your office then taking a turn and prosecuting my clients. 12 Chair Keawe: Okay. I think that is fifteen (15) minutes, Mr. Chun. Mr. Chun: hes, and that's (inaudible). Chair Keawe: Now, procedurally, I don't know. Is this where you rebut now from the County's side? Or do we wait until both arguments are done? I'm asking. Mr. Kugle: Chair, I probably can, in about two (2) minutes or maybe two (2) seconds, finish on behalf of my folks. Chair Keawe: Alright. Mr. Kugle: And then we can hand the ball off to the County Attorney. Chair Keawe: Alright. Go ahead, Mr. Kugle. Mr. Kugle: On behalf of Bardin and Allen, I am not going to repeat what Mr. Chun argued. We adopt his arguments. I would point out, also, for the record that my client Greg Allen is also ... has criminal charges pending against him by the County of Kauai Prosecuting Attorney's Office, so we have the same concerns as Mr. Chun expressed. Chair Keawe: Okay. Thank you. So the County — Mr. Bracken. Mr. Bracken: Matt Bracken. I represent the Planning Department in the Hoff and the Allen cases currently. Those two (2) cases, as highlighted by Petitioners' counsel, were prosecuted by the Prosecutor's Office. The interesting thing about conflicts of interest is conflicts of interest follow attorneys, not necessarily offices. So they are trying to impose a conflict based on the Prosecuting Attorney's Office on to your legal advisor today, which doesn't exist and they haven't shown any evidence that it does exist. Specifically to the Allen (case), my understanding is that the Allen that was prosecuted was Greg Allen Sr., not Greg Allen Jr. Okay, so it was ... I apologize. So there was a Greg Allen that was prosecuted by the Prosecutor's Office; that case is still pending is my understanding. As to the Hoff case, that one was dismissed, but if there was any conflict, it would have been with the conflict ... the conflict would be with the prosecutor that prosecuted the case, not to your legal advisor today. The other thing I want to point out is Mr. Chun reads a lot into what the County Charter says. Section 23.14 says, "The head of any department may empower or require an employee of another department...", and essentially what happened in this circumstance, the County Attorney communicated with another department head, which is the Prosecuting Attorney, and essentially empowered their employee to advise you today. There hasn't been any showing of any actual conflict of interest. They just kind of throw things around, like, my client has been prosecuted. They haven't shown that their clients are being prosecuted by your legal advisor today. The other thing I would like to highlight is most of this — their entire argument — isn't applicable to my cases. They are asserting a due process violation that does not exist to my cases. We stipulated to a hearing procedure. I represent the Planning Department in those cases and they are essentially saying that the County Attorney has this conflict. I am not the County Attorney. 13 Their argument is wholly inapplicable to my cases. I don't have the legal authority to ... and so that is what the water case talks about. It talks about the Attorney General having the power over the legal advisor of this Commission. I didn't have that power over your former legal advisor Deputy County Attorney Peter Morimoto. He serves at the leisure of the County Attorney. I am not the County Attorney. So this whole conflict of interest that they are trying to assert is wholly inapplicable to my two (2) cases and that is really all I have to say (inaudible). Chair Keawe: Okay. Mr. Ferguson, I believe. Mr. Salas-Ferguson: ug son: Yes, Deputy County Attorney Sinclair Salas-Ferguson. Again, this is for the Fischer, Schirm, Nishimoto, Chandler, Wark — the Boilini case is no longer part of this motion — the Bardin case, and the Brooks case. I will adopt what First Deputy County Attorney Matt Bracken just said and I won't go over what was said in the opposition to the Petitioners' motion. I will rest on the pleadings as submitted on that, but I would like to point out one thing that Mr. Chun said. He referenced the Waiahole case. He said that the issue between the superior arguing a case in front of a commission being advised by an appointed superior in the Waiahole case was rectified once the AG withdrew. In this case, Peter Morimoto, Mr. Trask's appointee, is no longer advising the Commission so the issue would be resolved if we were to follow Mr. Chun's reasoning in the Waiahole case. It is my position that the issue has been resolved according to the Kauai County Charter. My interpretation of Section 23.14 regarding work sharing in the County is different from Mr. Chun's. I think the issue has been cured. Regarding what was raised just now for the first time, the prosecutor... your new advisor, Mr. Ramsey Ross, potentially prosecuting one of the petitioners; that is the first I have heard of it and as Mr. Bracken said, there is no evidence that Mr. Ramsey Ross has prosecuted any of the petitioners. It is an allegation that was just made right now, so I would ask the Commission not to consider that as it is not evident. It is an allegation that is unsubstantiated and it is not on the agenda to be considered today. I just want to point out again and real specifically that Mr. Chun, in the hearings before, he waived this issue regarding Mr. Morimoto advising the Commission. He said it was okay for Mr. Morimoto to ask questions that the Commission had, so that is one (1) issue waived and then it has been cured with Mr. Ramsey Ross advising the Commission. And again, as Mr. Bracken said for himself, regarding the cases that I represent the Department in, I have no conflict. I did not appoint Peter Morimoto and I certainly did not appoint Mr. Ramsey Ross, so there is no issue between an appointee and the person who appointed them. And that is all. I rest on everything. Chair Keawe: Okay. Mr. Bradbury. Mr. Bradbury: Yes. On the Kaiser matter, the Kaiser's will adopt everything that has been argued by Mr. Bracken and Mr. Sinclair Salas. Chair Keawe: Okay. Mr. Trask. Mr. Trask: Thank you, Chair Keawe. For the record, Mauna Kea Trask, County Attorney. I would just like to be clear, have we finished the argument on the first group of cases to the 14 exception of Guyer and Searles? And if so, will the Commission be ruling on those matters and then taking up Guyer? Or are we going to argue Guyer now? Because, again, I am not sure how we are involved anymore and I do not want to assume anymore. I want to do what is right. I definitely do not want to hear another tertiary or quaternary, or whatever the word would be at this point, argument regarding this matter so I would request that the Commission rule on the first ten (10) or so cases and then address the Guyer case entirely separately of which I am the only attorney in that case for the Department. Chair Keawe: Okay. Mr. Chun, is that acceptable? Mr. Chun: Yes, and I think we agreed to that earlier. I think the last thing that needs to be ... I thought the process that you outlined when we first started was fifteen (15), fifteen (15), and then we get five (5) minutes to rebut. Chair Keawe: Right, five (5) minutes for rebuttal. Mr. Chun: So that is where, I think, we are right now. Chair Keawe: Okay. So who wants to go first? (Laughter) Mr. Chun: No, I agree with Mr. Trask regarding... Chair Keawe: Did we finish the rebuttal period? Mr. Chun: Not yet. Chair Keawe: Not yet, right? We haven't even started yet. (Laughter in background) Mr. Chun: Whenever the Chair wants, you know, we can start. Chair Keawe: Yes, well, go ahead. Mr. Chun: Okay. Chair Keawe: Are we in the rebuttal period? Then go ahead, Mr. Chun. Mr. Chun: Okay. Quickly, rebutting the arguments raised by the County over here — (1) Mr. Bracken raises that he is not the County Attorney and he has no authority to hire or fire Mr. Peter Morimoto and that is one (1) reason why the motion should be denied. The motion we made was the fact that Mr. Mauna Kea Trask argued and represented the Department in these proceedings on behalf of the Department against all the applicants, not just Mr. [sic] Guyer. If the Commission goes through the hearings and the minutes, it was very clear the only one that was asking questions, the only one that was arguing on behalf of the County was Mr. Trask. (He) cannot un -ring that bell. He cannot come back and say no, that wasn't me. It was. Our objection raised was Mr. Trask was the attorney for the Department in front of the Commission 15 for all of the cases, so we were not attacking or questioning Mr. Bracken at all because that is correct; Mr. Bracken is not the County Attorney, Mr. Trask is. Second question raised by Mr. Sinclair was well, Mr. Chun waived. Yes, we talked about Mr. Morimoto asking questions and Mr. Morimoto, on his insistence, said I got authority from the Commission to ask questions. Okay. We are not questioning whether Mr. Morimoto asked questions. We are questioning his advice, which we are not privy to. We are not privy to whatever advice he gives to you. That objection was not waived. Third thing is about this not being on the agenda. Of course it wasn't on the agenda because, of course, the Planning Department only put in the Prosecuting Office just a couple days ago. So on one hand they are trying to be smoke and mirrors with us and saying we are not going to tell you how we are going to resolve this, but we are going to resolve it now by the Prosecuting Attorney, and then when we object to that, they say well, it's too late, you didn't object earlier. We didn't know earlier. That is why it is not on the agenda. It was just forced upon the Commission this morning. I don't think you guys had any understanding. It is properly before the Commission and the Department has not addressed any of the legal arguments we have raised regarding the Supreme Court and the Intermediate Court of Appeals' clear decisions that the Prosecuting Attorney's Office cannot get involved on matters that are not within their jurisdiction. Chair Keawe: Thank you. Mr. Chun: They have not addressed it at all. Chair Keawe: Alright. Mr. Kugle. Quickly. Mr. Kugle: Yes. I have nothing to add onto what Mr. Chun said. I won't repeat it. We adopt it. I will say —just to be clear — that I talked to Mr. Ross before the hearing and he informed me that he is not involved in the prosecution of my client Greg Allen and does not know anything about it. I want to be upfront about that. Otherwise, I think we stili have the concerns that Mr. Chun argued earlier. I did want to reiterate the fact that I think the Planning Department's brief was filed on October 6`h and we got it a day or so later, so we didn't actually find out about this switch until Friday or yesterday. We could not have addressed it and there was not a briefing opportunity to do so, so we raise it today. Thanks. Chair Keawe: Alright, thank you. Who wants to speak for the County? Mr. Bracken: Chair— Chair Keawe: Mr. Bracken. Mr. Bracken: Yes. Mr. Chun: I thought the rebuttal is limited to just this side because it is our burden of proof. 16 Chair Keawe: Well, you both made your arguments and now each side gets a rebuttal, don't they? Mr. Chun: Generally... and, again, you would check with your advisor. (Laughter) But generally, if I may — and the County could correct me if I'm wrong — but generally, you have one side giving the case, the other side presenting their arguments against, and the rebuttal is usually reserved for the side that has the ultimate burden of proof, which is us; that is why we get the last say, not back and forth, back and forth, back and forth, back and forth. Chair Keawe: Well, it was not going to go back and forth. It was just one time. Mr. Chun: Right, but it is to the Chair's discretion. Chair Keawe: Yes. Alright. Mr. Bradbury. Mr. Bradbury: I have nothing to add. Chair Keawe: Okay. Mr. Bracken: Chair, if you will allow me, I just want to correct one (1) misstatement. Mr. Chun said that Mr. Trask represented the Planning Department in all of our cases and Chair, that is not accurate. We stipulated to a procedure and Mr. Trask has never represented the Planning Department in the Hoff or the Allen case. We stipulated to a specific procedure in the evidentiary portion of the hearing and now that is complete. We are into the argument portion of the hearing where I represent my clients. I have always represented my clients. We didn't have each attorney stand up and ask questions because we were trying to expedite the process and that is something we stipulated to. The only other thing I want to address, Chair, is our opposition was emailed to opposing counsel the day it was filed and I emailed it myself. (Inaudible). Chair Keawe: Alright. Thank you. I guess the decision we have to make at this point — if I hear this correctly — is we would take all of the cases with the exception of Guyer and argue that separately. Was that what I heard? Mr. Trask? Mr. Bradbury? Mr. Chun? Mr. Bradbury: Yes, that is correct. Chair Keawe: Is that it? So we can go ahead and make a decision on all other cases except Guyer, and then we will go and do Guyer separately. Is that correct? Mr. Chun: That is my understanding, Mr. Chair. Chair Keawe: Okay. Alright, Commissioners, it is your opportunity to ask questions of any of the attorneys with regard to any information that has been presented. Again, for those in the audience, we are not attorneys so a lot of this is very difficult for all of us to deal with, but we 17 will do the best we can to make sure that we cover the salient points in the case(s). Are there any questions? Commissioner Mahoney, anything? Mr. Mahoney. Well, you know, some of the issues that Mr. Chun brought up about our present advisor here, you know, that might be another possible conflict. We are trying to resolve one conflict and then another one immediately pops up about somebody else here. We went through a lot. I haven't been before this many attorneys in a long time, or ever. (Laughter in background) But to try to resolve it, I thought everybody was working towards a resolution. Now, at the beginning statements, it is like we are already working towards something else — another conflict — and that whoever is sitting here is not a proper person to be here. Different laws and Charter cited, and so forth, so to determine what our next step is, it is becoming a little more difficult. We start to resolve one matter, then we're stuck ... well, we have another conflict here, so I am not sure if the person that we do have representing us is the person we should have here or not, or is that a conflict? I don't know. That is where I am kind of stuck at right now. Chair Keawe: Okay. Commissioner Lord. Mr. Mahoney: Excuse me, Chair. Through the rebuttal ... or the County feels that it's not, then maybe that's — this is probably more than a question — that we have to decide that ourselves, I guess. Chair Keawe: Yes, I think that is the issue, Commissioner Mahoney. Mr. Mahoney: Yes, okay. Well, that is what I wanted to— Chair Keawe: Whether we agree with what the County has done or if we agree with Mr. Chun. Mr. Mahoney: Okay. Chair Keawe: I think that is the core issue of what we have to resolve. Commissioner Lord. Mr. Lord: Yes, a question for Mr. Chun. Mr. Chun, I guess I am at a loss to understand why ... your motion was filed on what date? Regarding a conflict. Mr. Chun: Regarding Mr.— Mr. Lord: Was that June? Mr. Chun: The objection was made on June 30, 2017 when the proposed Findings of Fact, Conclusions of Law were submitted and it was only done as an objection. It was not a motion. Just an objection, like, when you are hearing, you just object and move on, you know? Mr. Lord: Okay. Mr. Chun: At the time in which the Planning Commission, then, decided to put on the agenda to adopt a Findings of Fact, Conclusion of Law — and you can check the minutes — I believe the 18 County Attorney's Office came back and said they were going to treat my objection as a motion, which is proper. Under the rules, they can do that and I did not object to that. So that is why we are here today. Based upon that, the Commission asked for briefs on the motion; not the objection, but the motion. In essence, the objection is the same as the motion and so forth, but it was initially brought out as just an objection, not a motion. Mr. Lord: So why didn't you object to him sooner? Mr. Chun: We did object. Mr. Lord: Sooner than that. Mr. Chun: Well, we objected from the time Mr. — if you recall —well, you weren't here, sorry. But the first meeting of the Planning Commission in which Mr. Morimoto was advising, I raised an objection or concern in front of the Planning Commission saying Mr. Morimoto had maybe a week or so earlier sent me a letter and I characterized it as a way to try to disqualify me. Mr. Morimoto and I got into it. He raised objections as to that, but that was the first time the concern was raised by myself on behalf of my clients about Mr. Morimoto's participation, and I think some of you were here on that one. That calmed down after a while — and I am not going to say what happened afterwards — and then we started calling witnesses, if you recall. At that second hearing before the Planning Commission, Mr. Morimoto got— Mr. Lord: Can I interrupt? Mr. Chun: Yes. Mr. Lord: What was the date of that first... Mr. Chun: I don't recall. I don't have it right now. Mr. Lord: Or just generally; throw a dart. Mr. Chun: It was probably April or May, somewhere. Mr. Lord: Okay, thank you. Mr. Chun: And that was the first meeting in which they set this matter up for. Mr. Lord: Okay, thank you. Mr. Chun: And the second one — if you recall what happened after that — is when we called witnesses. Mr. Morimoto stepped in and started, at that point in time, asking questions. I, myself, raised on behalf of my clients (inaudible) Mr. Morimoto asking questions as that he is an advisor, not an advocate. Mr. Morimoto ... and I don't want to go into detail, but Mr. Morimoto — and I'm putting words in his (mouth) — basically took the position that he was requested or he was doing that on behalf of the Commission. And I think — I'm not quite sure — but he said he 19 was doing it on behalf of the Commission. At that point in time, you know, I might have said "fine" because at that point in time I think he was being very litigious and so he finished asking his questions and that went on. At another witness, Mr. Morimoto again started asking questions of that witness and I believe the second time, another attorney — either Mr. Kugle or Mr. Edwards — objected to Mr. Morimoto's getting involved and asking questions. So throughout these proceedings there were objections raised, from the very first day up until Mr. Morimoto not being here, of his participation; what we thought was an appearance. And that is one reason why we raised — in June — that there is an objection to the County Attorney's Office advising. From my point of view — and I can't speak for the other attorneys — but the concern was not as to Mr. Morimoto. I mean, that was one concern; the objections were raised. But the concern raised in the Water Commission case was the appearance of impropriety of a subordinate basically advising the Commission in which his boss is arguing, so the inference is obvious that he is going to support his boss if he wants his job, and that was the crux of the objection in that Hawaii State Supreme Court case. In that case, the Attorney General at that point said basically — I can't speak for her — but at that point in time, dismissed the attorney. So they said there is no conflict because that attorney is no longer here. That is how it was raised. I know, Mr. Lord, you weren't there at least the first two (2) hearings. Mr. Lord: Right. Thank you. Mr. Chun: Or Ms. Apisa; I don't think she was here either. Chair Keawe: Commissioner Apisa, any questions for any of the attorneys? No? Mr. Chun, I was not here for that May 91h meeting, which was basically the meeting where witnesses were called, and I think there was a Mr. Unebasami who was one of your witnesses or experts in that thing. Correct me if I'm wrong— there was no objection to him — "him" meaning Mr. Morimoto — asking Mr. Unebasami questions. Mr. Chun: I think— Chair Keawe: The record ... well, go ahead. Sorry. Mr. Chun: There was. I think that was the witness that Mr. Morimoto was questioning when the objection was first raised. Chair Keawe: And was there a specific objection noted in the minutes on that particular issue? Mr. Kugle: Chair, if I could answer that question. Chair Keawe: Mr. Kugle. Mr. Kugle: Greg Kugle. Thank you. I believe some of this was actually quoted in the brief that the County submitted last week, but specifically, we did. When Mr. Morimoto — and this is in the minutes on the May 91h hearing — when Mr. Morimoto began to ask questions of Mr. Unebasami, I stated an objection. I said, "Could I, Chair, just object that I think Corp(oration) Counsel is stepping out of the chair of advisor and into the chair of an advocate. I think Mr. K11 Trask did a fine job cross-examining and I think I would stand on that objection." And then Mr. Morimoto explained that he was asking questions on behalf of the Commission and I just rested on my objection. I made the objection there because I thought he was being an advocate; in essence, adopting the Corporation Counsel's position on things with his questions. So that was the objection that was made for the record; however, he did proceed to ask the questions. Chair Keawe: Right. So he did proceed to ask the questions? Mr. Kugle: Yes. Chair Keawe: Okay. Mr. Trask? Mr. Bradbury? Mr. Trask: Yes. For the record, Mauna Kea Trask, County Attorney. I would just like to point out that the Department is the only party who is actually showing you copies of the minutes, who is actually showing you ... provided copies of the minutes for this direct issue. If you look, there was no objection to any other witness. There was only an objection to Mr. Unebasami. Petitioners in the pleadings provide no minutes. All they say is that, essentially, Peter Morimoto was asking questions. Petitioners did not like the questions and so that must mean that the County Attorney and/or Deputy County Attorney Morimoto is ... the crook is in. There is absolutely no evidence. There is just an allegation. If you look at page 112, after coming out of a 3 -minute executive session with their own attorney, Vice Chair Ho says "Mr. Morimoto". And then Mr. Morimoto proceeds to ask questions. Mr. Kugle is correct. Mr. Kugle is the only attorney who actually— Chair Keawe: Okay. Mr. Trask: —states what the exhibit says. Chair Keawe: Alright. Mr. Trask: And then Morimoto clarifies the following: The Commission had questions; they asked me to clarify, so if you have objections, let us know. Mr. Kugle states, as he correctly stated, "I stated my objection." Then Morimoto says I am raising these objections [sic] on behalf of the Commission. After, Mr. Chun essentially raised an appearance of impropriety, although he does not do it articulately. He just kind of makes his way through. And then he says, "And that's fine. I just—" Morimoto says, I have not consulted with the Department or any of the county attorneys representing the Department. I have no idea what their thoughts are, except for what they have put on paper. Mr. Chun — "That's fine. We just ... so we can put it on the record." Mr. Morimoto — "And neither does the Commission, so we are just trying to get some clarification here. Is that okay?" Mr. Chun — "Yes. Based upon your representation that these are based upon questions from the Commission members, fine." Mr. Morimoto — "Do the Commission members have any objection to my asking Mr. Unebasami questions?" Parentheses — Unanimous voice approval to ask questions. There are no further objections to the line of questioning. And we would just like to note for the record ... I mean, there is no end in sight to these things. Under 91-14(g)(3), a decision made upon unlawful procedure is a grounds for appeal at the Circuit Court level. This argument belongs in the Circuit Court; not to get stuck in 21 a never-ending limbo out in front of the Planning Commission. Because what we thought the Petitioners wanted to do was get to the merits; that is why we agreed to their own proposed procedure. That's all. Thank you. Chair Keawe: Thank you. Alright, Commissioners, if I understand our choices this morning, (1) we can sustain the objection, which would be agree with the Appellants' position; (2) we can overrule the objection, which means we disagree with the Appellants' position; or, we can take it under advisement and schedule for a future meeting, subject to the potential of more infonnation coming out; however, as has been mentioned, I think this process has dragged on for quite a while and... Oh, Mr. Chun, I had a question. Mr. Chun: Sure. Chair Keawe: The question is, under your argument, there would be no one within the County employ that would be qualified to advise us legally. Mr. Chun: No. The County Attorney is authorized to appoint properly— Chair Keawe: Appoint properly? Mr. Chun: Properly appoint a special county attorney and do that. The County Attorney has done that. In the past, the County Attorney has appointed and put on contract other private attorneys to act as a special deputy county attorney. He did that numerous times. There is a process for that. They didn't follow the process in this case, but there is a process for that. Chair Keawe: Okay. So that reverses back to your original argument where we started with regard to the appointment of the Hearings Officer. Mr. Chun: Yes, that is one of the— Chair Keawe: Well, that's it, but— Mr. Chun: There is a process. I mean, I don't want to go through what the process is, but there is a process for the County Attorney to appoint a special deputy county attorney. Chair Keawe: And they haven't done that in your eyes. Mr. Chun: They haven't done it— Chair Keawe: And ... well, it leads back to the question — is there anyone here, or is there a special process for that, that would allow someone employed by the County — a legal, licensed attorney — to represent us? Mr. Chun: There is a process in the County Attorney's Office for them to appoint a special— Chair Keawe: And what is that process? 22 Mr. Chun: They can go out and ... correct me if I'm wrong. The County Attorney can correct me if I'm wrong and I don't want to speak for them, but there is a process in which the County Attorney's Office can solicit proposals for private counsel— Chair Keawe: But that does not answer my question. My question was with a legally licensed attorney that works for the County. Mr. Chun: Oh, works for the County. Chair Keawe: Yes, that was the initial question. Not someone that is appointed or going for an RFP and say okay, we need this legal work done. Somebody that is licensed legally to practice law that works for the County, is on the County payroll. Mr. Chun: Not that I know of. There might be one, but I can't think of any attorneys ... and the reason why (is) because I don't think there are any attorneys in the County other than the County Attorney's Office and the Prosecutor's Office. Chair Keawe: That's why my question— Mr. Chun: That's why I'm saying I don't think there is any right now. Chair Keawe: Alright. Mr. Lord: I have a follow-up on that. Chair Keawe: Commissioner Wade. Mr. Lord: Thank you, Chair. So Jonathan, to that argument you are making, though— Mr. Chun: Yes. Mr. Lord: Wouldn't it, then, be the same argument for a contract attorney whereby a deputy county attorney that is beholden to — in your argument — that is beholden to the County Attorney? Wouldn't the contract attorney also, in theory, be beholden to the County Attorney because he is getting awarded RFPs? Mr. Chun: Technically not because it would depend on what the ... the reason why — and I can't speak for the Supreme Court because I am not a Supreme Court Justice — but one of the concerns of the Supreme Court had to do with appointed attorney generals, and in this case appointed county attorneys, is that they serve at the will, the total will and pleasure of their boss. They can be hired and fired at any time. Contract employees are different. As long as they follow the contract and perform the contract, they are... basically that is their term of their employment. So in answer to your question, no. If you are a contract employee and you are following the terms of your contract, you cannot be terminated just because I don't like you or what you are saying. That is a big difference from appointed county attorneys or appointed prosecutors. 23 Chair Keawe: Thank you. Mr. Trask. Mr. Trask: Well, Your Honor, I think not only did ... I'm sorry. First off, we think that any procedure of special counsel under 8.05, I think, or 8.06 of the Charter, the County Attorney will be paying this attorney and it seems like the same argument because Harlan Kimura is a licensed attorney, he was procured, he's following the terms of the contract and yet, because he was paid by the County, Petitioners are saying he was not appropriately ... or one of things is he is getting paid because of his rulings. However, right now, I think Jonathan Chun just said well, if we appoint a county attorney per a contract and he follows the contract, then it is okay. So it appears that everything is moot, Harlan Kimura is appropriate to preside over these hearings, and that you should just rule on this thing and we will be alright. However, I am so turned upside down and all around by everything I have heard today; both the mischaracterizations of Supreme Court cases, the gross generalizations and overstatements and understatements of the facts in this case, the failure to reference anything, with the exception of Mr. Kugle — he did read the minutes — by other petitioners, (inaudible) counsel in this case. I think if I heard Mr. Chun right, then this specific motion is rendered moot and he has also successfully argued our opposition to his own motion on the underlying recusal. Chair Keawe: Mr. Chun, you've got the last say before we decide what we are going to do. Mr. Chun: I am just going to say I think Mr. Trask mixes apples and oranges to his liking. Chair Keawe: Alright. Mr. Kugle, anything more? Mr. Kugle: No, other than to say that I don't think, as the Commission indicated earlier, that it is prepared today to rule on the proposed Findings of Fact that were (inaudible) by both sides on the merits, so I just respond to Mr. Trask with that. I have nothing else to add on the issue that is before the Commission. Chair Keawe: Alright, thank you. Commission, again, our issue this morning is ruling on the objection. There is a lot more to be done with regard to all of the cases going forward. We are just trying to address this objection. Again — I will reiterate — we can sustain the objection, which means we agree with the Appellants; we can overrule the objection, which means we disagree; or we can take it under advisement for a future time to do that. So I will leave it at that. Ms. Apisa: Just a comment. It seems that if you look deep enough, there is always going to be a conflict in anything. (Laughter) There will always be a conflict. I mean, I know Mr. Trask has suggested letting a court decide. Is that an option? Chair Keawe: Well, I think eventually that will be the option after this plays out for however long it is going to take, but I think prior to getting there, these are all steps that need to be done to be able to get there. Are we ready to— Mr. Mahoney: Yes. Chair Keawe: —do something? 91 Mr. Mahoney: I am ready to make a motion. Chair Keawe: Go ahead. Mr. Mahoney: I move to overrule the objection from what we've heard today. Chair Keawe: Okay. Ms. Apisa: I will second. Chair Keawe: Second the motion. except Guyer. Okay? Is that right? we have a (roll call) vote? Mr. Ross: Mr. Lord. Mr. Lord: Aye. Mr. Ross: Mr. Mahoney. Mr. Mahoney: Aye. Mr. Ross: Ms. Apisa. Ms. Apisa: Aye. Mr. Ross: Mr. Keawe. Now, just to be clear, this motion is strictly for those cases, Okay. Any further discussion on this motion? Ramsey, can Chair Keawe: Aye. Motion carried; four (4) votes, 4:0. Alright, let's take a break for about fifteen (15) minutes and then we will come back and reassemble for Guyer. Thank you. Mr. Kugle: Thank you. The Commission recessed this portion of the meeting at 10:35 a.m. The Commission reconvened this portion of the meeting at 10:49 a.m. Chair Keawe: Session back in order. Alright. Mr. Chun, please go first. Mr. Chun: Good morning, Mr. Chair. Jonathan Chun on behalf of Kirby Guyer. I believe, in light of the Commission's earlier ruling on the other cases, I don't have anything else to add for Ms. Guyer because there is no, really, fact difference between Ms. Guyer's objection to the Deputy County Attorney representing or advising the Commission because it all happened at the hearing. Chair Keawe: Okay. 25 Mr. Chun: And the Commission already heard the objections from the minutes. Chair Keawe: Right. Alright, thank you. Mr. Trask. Mr. Trask: Thank you, Chair. Just real briefly on some of the legal points raised in the previous argument — the Planning Department would submit that according to the case cited Waiahole I, also known as "In re Water Use Permit", the County Attorney's Office did take appropriate action to rectify this. I believe the term was ... the County Attorney's Office also has a statutory duty, among other things, to provide legal counsel to the Commission and that the County Attorney's Office, in this case, comply with its ethical obligations to recommend the retention of other counsel to represent the Board and take such other action as, in her opinion, the circumstances required; that was done in this case. Again, per the proposed procedural process as articulated by Mr. Edwards who ... his petitioners are not part of this motion anymore, I submit that it is clear, from the procedure and the records in this case, I did not argue any part of this motion. Argument has not occurred on the underlying motion as of yet; that is to be set in the future. We just presented evidence and then we will streamline in economic fashion if possible. The Charter provision 23.14 does provide a sharing of personnel, which is appropriate in this case. The cite of Marsland v. Pang — in Marsland, the Prosecuting Attorney Mr. Marsland filed a civil nuisance complaint to enjoin a nuisance; I believe it was a gambling house in that case. The court said the Prosecutor was not authorized to bring such action for nuisance abatement. That is not what is happening in this case. This is an ethical obligation and in light of the history, I mean, use basic inductive reasoning. If applying the arguments of Petitioners to the Hearings Officer, applying arguments of the Petitioners regarding the Deputy County Attorney, it is fair and logical for myself to think that to procure special counsel, to pay for that out of my department's own money, would also bring a similar objection. The Prosecuting Attorney's Office is a separate elected office under (the) Kauai County Charter. They are not subject to any orders by myself or the Mayor or the Council. The Prosecuting Attorney's Office is answerable only to the people of the County of Kauai. So we argue it is totally appropriate in that case. And we would just like to note ironically, for the record, the only true potential conflict in this case is found in Petitioner Counsel's partner, Ex -Deputy County Attorney Ian Jung. Ian Jung advised this commission on January 13, 2015 in the Guyer case when it was set for a hearing. Ian Jung is the one who did the procurement and signed the assignment agreement that was provided before you in the underlying motion. Ian Jung is now a partner at Belles Graham Proudfoot Wilson & Chun. So, for those statements... and the conflict of Mr. Chun is not before you today. So we would just submit what is fair, what is right, and what is obviously just according to law. The case law of the County Charter is to overrule Petitioner's objection today and set for final argument on the underlying issue regarding the Hearings Officer. Chair Keawe: Okay. Mr. Chun, you have (the) final word. Mr. Chun: I would just object (to) Mr. Trask's attempt to besmirch Mr. Jung's name in this case. It has nothing to do with the motion regarding ... or the objection regarding the County Attorney's advice and now the Prosecuting Attorney stepping in to fulfill a role of the county attorneys. I 26 just object to bringing in Mr. Jung at this point in time. It has nothing to do with this. It is totally uncalled for. And that is all I have to say. Chair Keawe: Okay, thank you. Okay, Commissioners, this case was taken out specifically, separately, but I think it is still the same issue with the exception of a few differences than the first group. So, anymore comments or questions that need to be asked of any of the attorneys? If not, are we ready to make a motion or make a decision? Mr. Lord: I make a motion that we overrule the Petitioner's objection. Chair Keawe: Do I have a second? Mr. Mahoney: Second. Chair Keawe: It has been moved and seconded. Any further discussion on this issue and motion? If not, Mr. Ross, can we take a roll call vote? Mr. Ross: Mr. Lord. Mr. Lord: Aye. Mr. Ross: Mr. Mahoney. Mr. Mahoney: Aye. Mr. Ross: Ms. Apisa. MS.Apisa: Aye. Mr. Ross: Chair Keawe. Chair Keawe: Aye. Motion passes 4:0. Okay, let's see. Mr. Chun: If I may, Mr. Chair. Chair Keawe: Yes, Mr. Chun. Mr. Chun: Just scheduling. I am just talking about scheduling. Chair Keawe: Yes, I think that is the—the next issue is scheduling. I think the next meeting we are looking at, Mr. Trask, (is) November 14th. Does that work for you guys? Mr. Trask: I believe so. I think what we have done in the past in order to make sure is tentatively agree to a date today and then - 27 Chair Keawe: Yes, and then work on scheduling together and see if you can (inaudible). Mr. Chun, is that okay with you? You will guys work together and try to come up with that. Mr. Chun: Yes. Right now I have nothing on November 14`h. I don't know Mr. Kugle— Chair Keawe: Mr. Kugle. Mr. Kugle: That is okay with me, too, Chair. Chair Keawe: Alright. So we will go ahead and tentatively schedule for November 14th at 9:00 a.m. if it is acceptable to all parties. Is there anything more to bring before this body? If not, we stand in adjourrunent. ADJOURNMENT Chair Keawe adjourned this Contested Case Calendar at 10:57 a.m. Respectfully submitted by: (I)Vrcie Ag n, Commission Support Clerk ( ) Approved as circulated (add date of meeting approval) ( ) Approved as amended. See minutes of meeting. 28