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7/22 Council Hearing: Preferential treatment of Yoshimoto over Hoffmann; Ashida's Recommendations; Yoshimoto Affidavit

County Council Hearing on June 22, 2009 Agenda Item Comm. 439 UPDATE OF THE STATE OF THE CURRENT LAWSUIT (WEST HAWAII TODAY V. COUNTY COUNCIL OF THE COUNTY OF HAWAII) RE COUNCIL MEETING HELD ON JUNE 16, 2009
[Note Council member Pete Hoffmann has been encouraging that this update discussion be carried out in public view and not in Executive Session; thereafter other Council members and Corporation Counsel supported this open meeting position. In order to hold an Executive Session, a 2/3rd vote of the Council is required. ]

ROUGH TRANSCRIPTION OF THE COUNCIL DISCUSSION OF COMMUNICATION #439; FOLLOWING THIS TRANSCRIPTION IS A COPY OF YOSHIMOTO'S AFFIDAVIT SUBMITTED BY CORPORATION COUNSEL TO THE COURT: There are holes in this especially towards the end, so suggest you watch one of the rebroadcasts scheduled on TV channel 52 -- see schedule at bottom of page.

Chair Yoshimoto (hereafter “Y”): Ordinarily I might now entertain a motion to for executive session. [recommending in open session]

Y: Do any council members want to request an executive session? [no council members responded]

Ashida (“A”): Thanks for scheduling this matter:
It is important to let you know where things stand vis a vis the West Hawaii Today Lawsuit.

A: If there is any issue regarding conflict of interest we need to deal with that first?

A: Do all council members have the information passed out by Corporation Counsel? We need to discuss the options.

Mr. Ikeda: no I do not have. [Council takes break for Ikeda to read]

Y: Now all Council members have read the information.

A: First we need to resolve the issue of representation by Corporation Council: Do you have a personal interest in the outcome of this suit – not just a personal view or opinion, but an interest that is not consistent with the interest of the County.
I represent the the County and the Council, not the majority and not the minority, but the Council. So if any of you have a problem -- a conflict of interest we need to discuss that.

Hoffmann (“H”): I still have questions about what is meant by “personal interest”. I received your 139 pages of what was submitted to the Court. We had an email exchange yesterday about the meaning of those words, and how that affects whether there is a conflict of interest. So I can not answer you for sure if I have a conflict of interest with your representation based on whether I have a "personal interest" versus a "personal view".

[MWille clarification note: I believe what Ashida is getting at by differentiating between a "personal interest" in the reorganization vote and a "personal view" of the reorganization is whether any Council person believes he has a due process right that could be at stake, in other words "personal interest" would be a property interest that would implicate certain due process rights, but if the Councilmember only had a person view -- then no property interest is at stake... ????]

Yosh: Mr. Ashida, can we proceed with this discussion even if Mr. Hoffmann is still unclear about whether he as a "personal interest" here.

A: Yes we can.

Hoffmann: What bothers me is that you submitted an affidavit by J Yoshimoto to the Court about what happened at our meeting in Waimea [Yoshimoto's affidavit contradicts Hoffmann’s statements of what happened at this meeting] .... yet you did not give me the opportunity to submit an affidavit. { A COPY OF THE AFFIDAVIT IS PROVIDED BELOW]

A: I only put into the Court records – statements that were made by one Council member and corroborated by another and
And Yoshimoto is an attorney and he understands the implications of filing a sworn statement.

H: I have a problem with you submitting one side and not the other.

A: Today the only determination is the TRO.

H: So that affidavit has nothing to do with the TRO? It doesn't affect the TRO ?

A: My responsibility is to defend the Council that there was not a willful violation. WHT is making an assertion that there may have been a willful violation......(.??) And in my heart I don't believe the Court will find any willful violation.

H: You have an untenable position defending this the Council. I do want to have the opportunity to state my position about what happened. As to whether you can adequately represent me that is one thing (?) – BUT I do want to have opportunity to state what happened at a meeting I did not initiate.

Yagong (“Yag”): I can accept what you say about no conflict of interest for me. But I am concerned when you say you don’t represent the majority or the minority – but represents the Council as an entirety. I am disturbed that only one person has the opportunity to present his position-Yoshimoto- and the other involved-Hoffmann- on this critical point was not given the opportunity to submit his affidavit. This is wrong where there is a document on an important issue and where there is a direct conflict in the positions –this is very upsetting. I think Mr. Hoffmann is being too much of a gentleman about this. He should have had that same opportunity . It is preferential treatment. I would feel the same way if it were Yoshimoto who did not have this same opportunity. If it were me and Ms. Naeole with different positions, I would feel the same. And it is Not the same allowing Hoffmann to submit an affidavit later in the case. This is preferential treatment, and I would feel the same no matter who it would happen to.

A: (with irritation) I needed to respond to West Hawaii Today’s assertion that Mr Yoshimoto said he had five votes. I NEED to represent my client (Ashida points to Yoshimoto while saying this)

Yag: You just pointed to Mr. Yoshimoto when you said “my client”. . . that HE is your client.

H OR Yag: I did not have the opportunity to have my position represented.

H: Who initiated including the affidavit, you or Yoshimoto.

A: Yoshimoto.

Naeole (“N”): Dominic I don’t want you to use me in your examples. Don't mention my name for anything. Dominic you are so hot (or hot tempered?) and emotional, I just want to stay cool with you.. Try to stay positive...and move on This morning when I woke up at 6:30 and I pulled my prayer box out. And I called a prayer warrior.…

Yag: I will oblige your request. Emily when you go on one of your tirades we allow you to do so; we all allow you to do so, so please do not stop me from expressing my opinions and emotions. It is inappropriate for you as Vice Chair to call me out about my emotions in discussing the affidavit.

A: To succeed at getting a TRO one of the requirements is to show you are likely to prevail on a claim, and one of the claims is that there was a willful violation of the Sunshine law – so I need to oppose that. [more statements about what is required to get a TRO] WE can wait and see if the Court rescinds the Resolutions or the Council can rescind the votes. Then if you want to do reorganization must give notice and vote it up or down. Doing nothing is not a good and waiting for the lawsuit will not do the Council any good. The WHT did a favor by saying the Resolutions were void and so these issues are moot if that vote is rescinded. This will bring the claims to a head ....

H: What about the statement during public testimony there is a 90 day filing period from the action to file in Court.

A: Well I think that is 90 days from when the OIP makes its determination. In this case WHT may be doing us a favor so that we address these issues right away. And then the idea is that if there were any filing by another party the claims would be final as res judicata (you can not hear the same issue again).

Ford (“F”) :What will it take to go back to the way we were – and proceed from there.

A: That is one of the options that we can discuss now: that is a very viable possibility. We could do a vote at the next meeting around August 5. When is the deadline for filing any agenda item with the Clerk’s office?

Clerk Goodenov (Clerk Good): I think that is this Friday. But Yoshimoto could change that.

A: we can do that. And then after that someone could propose revoting for reorganization.

A: I asked the Dept heads if there are any major problem with redoing votes previously taken two weeks from now, and the answer was no.

Greenwell (“Gr”): Can we do that vote now now.

A: Sunshine law requirements like Notice need to be observed.

Gr: If we accept the legal position is “that it didn’t happen”, can’t we go forward at this point and redo those votes.

Clerk Good: better to have notice: can’t do today

Yag: Is this a forum where we can discuss whether to go back to the leadership status pre-organization versus whether to try to make –argue- the current status legal.

A and Clerk Good: Yes that can be discussed – there was sufficient notice to the public.

Yag: Important to put ourselves into a position to continue county business. At very least we should be in position to continue the County’s business and we are not going to let the people’s business (stop).

Onishi (“O”): Our business is to discuss the lawsuit and decide whether to go into executive session?

A: no, the issue is not whether to go into Ex session, the horse has left the barn on that already.

Onishi: The court will decide the TRO today? What will that do?

A: It stops us from conducting our meetings and taking any actions based on the reorganized state. No official business would be permitted under the reorganized status. As to exactly what could be done … we would ask the Court to write a specific findings so we know what we can do.

(??)Ford: so when can we vote?

Clerk Good: I suggest we switch the Council date and the committee dates. [so can undo the reorganization resolutions first]

Ford: If we voted today to go back to pre-organized status, would we be permitted to do so under a suspension of the rules – like suspending the requirement that a motion be in writing.

A: I am not a fan of suspension of rules. Your rules exist for a purpose.

Ford: At this point can we take this issue under reconsideration – can we do that?

A or Clerk G: no it is too late for a motion for reconsideration.

F: Can any member of the Council write a reversal and not just those in the majority on that vote. Can we assign someone to do. Can we designate one councilmember to do this reversal resolution, so we don’t have up to nine members writing a reversal resolution.

(who ?: Ford? ) I want to move for a dismissal.
Ford: Reverse those two resolutions and rehear the matters that were voted on before – we should do that

Y: Yes that would take care of points 2 and 3 of the lawsuit)

F: I Suggest that the Chair write these reversals and reagendize the matters that have been taken up that we need to revote on....?. In an abundance of caution I think that's the only reasonable course of action. It's the safest course of action . . . at least we can clean up what we can clean up. It's not more legal or less legal but nice if [reorganization]held off for two weeks -- [to next council session].

A: If those council proceeds void, I am not sure how this would affect where someone has been voted against – in a nomination (a North Kohala CDP nominee was voted down in a vote taken after the Organization Resolutions.) Any nomination that is not voted on within a certain amount of time is considered automatically approved so we may have to do something about that.

Naeole: Does the reversal have to come first or can we simply revote for the reorganization? .....
If someone wants to do reorganizing we can do on the Council day (August 5)

As: I think Ford made a good point let’s undo what was done before.... it is cheap insurance as we lawyers would say. [that would give us a clean slate; if it is void it is like it did not happen]

N: If I write the [reversal] resolution I will not talk to nobody. I think we are talking too much.

Hoff: So we would first reverse the Reorganization Resolutions?

A: there is also the possibility of the Court finding an intentional violation. . . that is the worst case scenario.

Hoff: Let’s wait for the next Council session to vote and not do it today.

A: You can do the reorganization reversals on August 4 or 5 and not make reorganization resolutions on that same day but then wait until later in the month to make any proposals for reorganization.

Greenwell: I am concerned about immediacy. What are our options as to immediately moving forward to rescind the reorganization resolutions. Let’s go back to pre 6/16 organization and continue that way and let the Court work out its business separately.

A: The WHT case ….. The court can sui sponte raise issues not raised in the lawsuit. We don’t want to prolong any litigation.

Green: I am not sure we should proceed with proposing

Ikeda: I don’t see any reason for a reversal vote; [we can just redo the reorganization vote]

A: Today’s motion before the Court would stop the business of the Council immediately. But the lawsuit still goes on… it will still proceed to decide about the Sunshine Law violation. Ms. Ford suggested we do the reversal resolution– go back to the “clean slate” . I agree her.

Ikeda: [??I am getting mixed messages. You are saying that the other vote can be void like it did not happen ?]

A: Just move forward and ignore the lawsuit is not a good idea.

Yoshimoto: I agree with Ms Ford – do the reversal and go back to “clean slate”. IN an abundance of caution, we should re-agendize the items that were already voted on.

Y: This process has been a difficult one. .. We all have the best intentions. Building relationships is what is important. The key point to me is how we disagree [but still have respect to disagree]. Even adversaries can be allies. There may be something we can learn from this experience--something to grow from.. We need to be able to express our ideas and disagreements in a professional matter. Being Chair is not always easy. … as I am sure Mr. Hoffmann can tell you.
I look forward to putting this matter behind us and moving forward.

Ashida ‘s Recommendations:

1. First get a Clean slate: Go back to the Leadership configurations before 6/16.

Defer these agenda items scheduled for today (“cheap insurance” action and no big harm in doing so)

Ikeda: There is one resolution that was passed over in committee, and I think we should hear that in Council today.

F(?): Suggest a “Special Council” meeting on the 3rd or 4th –to do the reversal; then revote on the old committee matters and the new committee matters. ......

A or Yosh?: On the 4th we do a reversal of the reorganization resolutions, and then proceed with committee meeting items. After that someone could introduce a new motion to reorganize after that.

F: Special meeting early am. On our Committee day and do the previous votes item by item.
Then on the 5th have our council meeting--- can list on the agenda the committee items and assume they will pass as before. We can revote all those matters. That will complete all of the business that had to redo.

Onishi –I think we should schedule for Aug 3rd the special special council meeting (for the reversal resos)
-- then on the 4th have committee meetings
-- and on the 5th have regular council meeting [MW note – and presumably on the 5th the reorganization votes would take place again]

Ford: I want to stay with the 4th for the Special meeting – may take only take15 minutes
I thin we should consider the Cost of those traveling for that extra day. Where would that meeting be held

[someone says Hilo]

F(?): We can Agendize for the meeting on the 5th.

 Ashida’s recommendation:

1. In abundance of caution you should revert to pre 6/16 organization … schedule that vote for next Council session
So File this communication we are addressing here and accept my recommendation.

Ford: shouldn’t we take a vote on this recommendation

Y: let him finish with his recommendation

A: 2. then you can rehear the votes taken in committee [we are not conceding anything was improper ... but in abundance of caution, you rehear those matters.

Yagong: I accept Mr. Ashita’s recommendation

Council then proceeded to vote unanimously to
8 votes in favor… adjourn.

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Here is a copy of Yoshimoto's affidavit (which in effect says that what Pete Hoffmann said was false.)
MW COMMENT: I see the Yoshimoto affidavit being used to challenge one of the criteria for obtaining an injunction -- trying to show that WHT is unlikely to prevail in the case. THe problem is Ashida is representing as true what Yoshimoto claims as true and not even allowing Hoffmann the equal opportunity to state the contrary facts he believes are true. Although Ashida does not say this ... I think his point is that Yoshimoto is more at risk here, which puts the County more at risk, so he needs to defend Yoshimoto over Hoffmann. It seems to me there is a conflict of interest.

IN THE CIRCUIT COURT OF THE THIRD CIRCUIT STATE OF HAWAI'I .
Civ. No. 09-1-279K
(Declaratory Judgment and Injunction) (Kona)

WEST HAWAII TODAY, Plaintiff

vs.

COUNTY COUNCIL OF THE COUNTY I AFFIDAVIT OF J YOSHIMOTO OF HAWArl, J STANLEY YOSHIMOTO,
DONALO IKEDA, GUY ENRIQUES. DENNIS "FRESH" ONISHI, EMILY I. NAEOLE, DOMINIC YAGONG. BRENDA
FORD, KELLY GREENWELL, PETE HOFFMANN. in their official capacities as members of the Hawai'i County Council
of the County of Hawai'i, JOHN DOES 1- 10. JANE DOES 1-10. DOE CORPORATIONS, PARTNERSHIPS.
GOVERNMENTAL UNITS OR OTHER ENTITIES 1-20, Defendants.

AFFIDAVIT OF J YOSHIMOTO

COUNTY OF HAWAIl )
STATE OF HAWAII )

I, J Yoshimoto, Council Member representing District 3 in the County of Hawaii,
State of Hawai'i, being duly sworn and under oath, do hereby solemnly swear and
affirm to the following:

1. I am a resident of the County of Hawai'i, State of Hawai'i
2. I am a licensed attorney in the State of Hawai'i
3. I am the Council member representing District 3, in the County of Hawaii,
State of Hawaii.
4. I met with Pete Hoffmann at his Waimea office on June 10, 2009 for the
purpose of discussing reorganization of the Council chairs.
5. At the June 10, 2009 meeting with Mr. Hoffmann, I specifically told Mr. ~
Hoffmann that Council Member Onishi and Council member Enriques were
each introducing resolutions that could change some Chair assignments.
6. At the June 10,2009 meeting with Mr. Hoffmann, I cautioned him to not
speak with other Council Members about this issue, because he was the
fourth Council Member in the discussion, and he agreed.
7. The Complaint filed by the West Hawaii Today dated July 10, 2009, contains
an allegation by Mr. Hoffmann that I apparently told Hoffmann that I "had five
votes to make the measures pass" even without Hoffmann's support is
completely and absolutely false.
8. I did not tell, suggest, imply, or infer to Mr. Hoffmann that I had five votes to
pass the subject reorganization resolutions.

Further affiant sayeth naught.

Dated: Hilo, Hawai'i, July 22, 2009.
Subscribed and sworn to before me this-- day of July, 2009.

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I suggest you watch the channel 52 tv broadcast to watch this Council session:
Wednesday, July 29, 2009 at 6:00 p.m.;
Friday, July 31, 2009 at 12:00 noon;
Sunday, Aug. 2, 2009 at 9:00 a.m.;
Wednesday, Aug. 5, 2009 at 6:00 p.m.;
Friday, Aug. 7, 2009 at 12:00 noon; and
Sunday, Aug. 9, 2009 at 9:00 a.m.