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DRAFT – SPECIAL COMMISSION MEETING MINUTES
SANCTIONS HEARING RE: COMPLAINT NO. 2013-02
THURSDAY, JULY 18, 2013
CITY COUNCIL COMMITTEE MEETING ROOM 205
CALL TO ORDER: Chair Sylvia Young called the hearing to order at 6:49 p.m.
Members Present – Robert “
Members Absent – Jeanette Nekota.
Guests – Laura Yoshida (Deputy, Corporation Counsel), Nicole Velasco (Executive Secretary), Romeo Garcia, Bryan Mick, Marie Richardson (Neighborhood Commission Office staff).
ROLL CALL OF COMMISSIONERS, ESTABLISHMENT OF QUORUM: A roll call of Commissioners established a quorum of eight (8) present.
ADJUDICATION HEARING ON COMPLAINT NO. 2013-02 – SPREG VS. CULLEN: Tonight’s complaint hearing is being conducted in accordance with Chapter 18 of the Neighborhood Plan, which is posted on the
ROLL CALL OF COMPLAINT PARTY(S): Chair Young took a roll call of the parties: Thad Spreg was present. Troy Cullen was absent.
Chair Young called the contested case hearing to order on Thursday, July 18, 2013 at 6:52 p.m. The Commission will hear any reason(s) why the Commission should or should not issue sanctions on Complaint Number 2013-02 (filed on May 15, 2013) by Thad Spreg for alleged violations of the 2008 Neighborhood Plan, §2-14-116 Disclosure.
Chair Young noted the following:
· The Complainant and Respondents have received the proper notice for this hearing pursuant to Hawaii Revised Statutes Section 91-9 and 91-9.5.
· The procedures for a contested case hearing were followed as specified in Hawaii Revised Statutes, Chapter 91, and The 2008 Neighborhood Plan Sections 2-18-101 [Complaints], 2-18-103 [Hearings initiated by a board, board member, or the public], and 2-18-104 [Sanctions].
· Pursuant to HRS Chapter 91-10(5), the party initiating the proceeding or the Complainant, have the burden of proof. The burden or degree of proof shall be a preponderance of the evidence. Basically, the standard is met if the allegation is more likely to be true than not true. If the Complainant does not meet this burden, the complaint will be dismissed by the Commission.
· For purposes of this hearing, the formal rules of evidence do not apply; however, irrelevant, immaterial, or repetitious material will be excluded from evidence. Cross-examination will be allowed of witnesses who have presented oral testimony. There will be no rebuttal.
· The Commission may take notice of judicially recognizable facts. A judicially recognizable fact must be one not subject to reasonable dispute. If the Commission takes judicial notice of any fact, the Commission will afford the parties the opportunity to contest any facts so noticed.
· Pursuant to the 2008 Neighborhood Plan, as amended Section 2-18-102(c)(6), after the conclusion of presentation of the respondent’s case, the Commission shall deliberate and determine whether the respondent has violated the Neighborhood Plan, and if so, the Commission will determine whether sanctions are appropriate equal in measure or extent to the significance or seriousness of the violation(s). In accordance with the 2008 Neighborhood Plan as amended, sanctions may include, but are not limited to, suspension or removal of a board member.
· The Commission will issue a written final decision within forty-five (45) calendar days after the hearing. Any person aggrieved by a final decision and order in this contested case may seek judicial review in accordance with HRS Chapter 91.
As a reminder to those in the audience tonight, the Commission is acting in its adjudicatory capacity at this hearing. Therefore, pursuant to HRS Section 92-6, there will be no public testimony allowed. Only the parties and those designated as witnesses by the parties will be permitted to provide oral testimony.
Unless there is an objection at this time, all documents and written statements already submitted to the Neighborhood Commission and made available to the opposing party prior to the hearing will be made a part of the record in this case subject to the following reservation. No other documents or exhibits will be allowed and no witnesses will be allowed other than the complainant and respondents, per the Neighborhood Plan §2-18-103(c).
OPENING STATEMENTS: Chair Young asked if Mr. Spreg wished to make an opening statement at this time.
Complainant – Mr. Spreg represented himself, and noted that his opening statement will stand as noted in his original complaint; there was nothing more to add.
Chair Young verified the complaint received (time stamped) by the NCO on May 15, 2013. The complaint form was dated May 14, 2013. Mr. Spreg offered to read his complaint aloud for the record. Chair Young noted that copies were available for the Commissioners and therefore it was not necessary.
For the record, Chair Young noted that Mr. Spreg’s complaint has been accepted as his opening statement.
Respondent – Respondent Troy Cullen was not present, nor was there any representative on his behalf.
WITNESS FOR THE COMPLAINANT: Chair Young asked Mr. Spreg if he had any witnesses. Mr. Spreg noted none other than himself. Chair Young proceeded to administer the oath. Mr. Spreg was asked to state his name for the record: Thad Spreg.
Complainant – Mr. Spreg is a member of NB No. 34. The NB chair is Troy Cullen. His brother is Ty Cullen, a state representative for House District 39 of which portions of District 39 overlap the area encompassed by NB No. 34. Rep Ty Cullen is regularly on the monthly agenda of NB No. 34 as state representative. Rep Cullen has submitted written reports which the chair has read, has addressed the NB in person, and at no time during any meeting since Rep Cullen was elected has chair Cullen disclosed that the two of them were brothers.
This is a direct violation of the NP §2-14-116 Disclosure. Mr. Spreg read aloud that section, “Any board member who knows he or she has a personal or private interest, direct or indirect, in any proposal before the board shall disclose the interest either orally or in writing to the board. The disclosure shall also be made a matter of public record before the board takes any action on the proposal.”
Mr. Spreg asked that the agenda, minutes, and videotapes of the NB No. 34 meetings from December 2012 through June 2013 be accepted by judicial notice. Yoshida asked that the dates be repeated; Spreg did so.
Mr. Spreg contended that at no time during any meeting did chair Cullen ever disclose his relationship with Rep Cullen, and that is a violation of the NP (Spreg said he personally attended every one of those meetings, gavel-to-gavel). This was Spreg’s testimony, “chair Cullen never ever even once made that disclosure, and that’s what you’ll find in the tapes and the minutes of the meeting.” Spreg believes that it’s simple and he is not required to prove that chair Cullen benefited from the relationship or caused any harm to the community. He noted that the burden of proof is simply to establish that chair Cullen did not disclose that fact.
Chair Young questioned Mr. Spreg if he responded to the NCO to ask that this evidence be prepared for tonight’s hearing. Mr. Spreg said he looked at it. Chair Young asked did you respond, Mr. Spreg said no.
Mr. Spreg proceeded to explain that by the time he received his notice which was post marked July 3rd, the next day was July 4th, Independence Day, and he received the notice on Friday, July 5th. Ten days before the hearing date would have been July 8th which was the following Monday. He simply did not have time to submit to the Commission within the 10 days before the hearing.
Chair Young asked did you not contact the NCO to ask them to get that ready; Mr. Spreg said no because his had looked at other Findings of Fact, and disclosed that he was not a lawyer, but he believed that it can via “Judicial Notice.” He was not asking to sit through three hours of the videotaping. In addition, chair Cullen’s letter says, “Please feel free to review our past NB meetings.” So, chair Cullen apparently have no objection.
Questions from the Commissioners followed:
1. Pahinui asked if the NC is allowed to accept Mr. Spreg’s request. She remembered in the last hearing, someone had a similar request but was told it had to be submitted prior, and is assuming that it cannot be done. Chair Young asked if it were available. Pahinui would be able to easily access it up on her iPad. But she was really seeking direction on consistency in accordance with the NP.
Deputy Yoshida suggested if the NC would want to go into Executive Session. Pahinui moved to go into Executive Session. Ho asked to hear other question first.
2. Pahinui was not sure whether this was the appropriate timing. She too read the section of the NP relating to disclosure and questioned whether or not there had been any proposal or any interest before the board. Normally, a NB would look at whether someone has some kind of financial interest or financial gain of a proposal that is before the NB. Pahinui’s question was there anything at any time that his brother proposed to the NB No. 34 that he could have personally benefited from.
Spreg said he would answer that in a minute, and he went on to say, “In addition to the brother relationship, there was a member (Evelyn Souza) who worked for Tom Berg’s office, and she was required to disclose all the time. So, Spreg does not understand why chair Cullen would not be required to be upheld to the same standard to disclose.
Pahinui queried that it was a matter of being consistent. Spreg responded yes, but the answer to the question was that he does not read Rep Cullen’s newsletters nor is he aware of what he’s up to, so he could not make a statement one way or another. But he agreed with Pahinui that it’s a matter of being consistent.
Stubbs shared having the same concern of what specific proposal resulted in a conflict of interest.
3. Tamamoto asked what Mr. Spreg’s contention was. Mr. Spreg said it was obviously not his decision to say where he should make that disclosure, but something that would be reasonable to the community. Say if when the meeting got to that part Rep Cullen report that at that time he could give a full disclosure that “he (Rep Cullen) and I (chair Cullen) are brothers.” Spreg noted that would suffice.
Stubbs seconded the motion. The motion to retire into Executive Session was ADOPTED, 8-0-0 (Aye: Finley, Guiffre, Ho, Pahinui, Stubbs, Tamamoto, Young, and Zahn). The NC retired into Executive Session at 7:10 p.m. with eight (8) members.
Pahinui moved to reconvene; Stubbs seconded the motion. The motion was ADOPTED, 8-0-0 (Aye: Finley, Guiffre, Ho, Pahinui, Stubbs, Tamamoto, Young, and Zahn). The NC reconvened at 7:19 p.m. with eight (8) members.
Chair Young announced that the NC will take into account the judiciary notice and accepted the NB No. 34 meeting agenda, minutes and videotapes from December 2012 through June 2013, as requested.
Complainant Spreg – Offered no closing statement.
MOTION TO CLOSE:
Ho moved, Stubbs seconded to close the hearing. The motion to close was ADOPTED, 8-0-0 (Aye: Finley, Guiffre, Ho, Pahinui, Stubbs, Tamamoto, Young, and Zahn).
Chair Young announced that this hearing is now closed, and pursuant to HRS 91, the Commission will retire to deliberate on this matter. The parties will receive a written order of the Commission’s decision within 45 days.
ADJOURNMENT: The hearing adjourned 7:21 p.m.
|Last Reviewed: Wednesday, September 18, 2013|