Maui Planning Commission sneaks Hawaiian burial group’s motion onto agenda, hears arguments without allowing public testimony

by Larry Geller

Maui Planning Commission, Chapter 201, Rules of Practice and Procedure

12-201-14 Meetings. (a) All meetings of the commission  shall be conducted in accord with the [rovisions of chapter 92, HRS, as amended.
…
(d) Except as provided in section 92-6, HRS, as amended,  the commission shall allow all interested persons an opportunity to  submit data, views, arguments or present testimony on any agenda
item.

Sunshine law on agendas

With some exceptions, Section 92 HRS requires that:

No less than six calendar days prior to the meeting, the board shall post the notice on an electronic calendar on a website maintained by the State or the appropriate county and post a notice in the board’s office for public inspection
…
If the written public notice is electronically posted on an electronic calendar less than six calendar days before the meeting, the meeting shall be canceled as a matter of law and shall not be held.

Background articles on this issue:

Pandemic no excuse for government hostility to sunshine laws

Disappeared News part of media group seeking to open Maui Planning Commission deliberations to public scrutiny

The issue behind the Grand Wailea Resort contested case proceedings: desecration of sacred gravesites

Grand Wailea Resort redevelopment contested case proceedings

Hawaii Supreme Court orders Maui Planning Commission to answer petition on media access

The Maui Planning Commission appears to have violated both the Sunshine Law and its own rules by failing to give the public required notice of a hearing item.

By amending the agenda only two days before its hearing Tuesday on two motions filed by the intervening Hawaiian burial groups seeking to overrule rulings of the hearings officer and to recuse her, the Commission blindsided the public. Six days notice is required and expected. [See box at right]

Those who follow public meetings are used to checking six days before the meeting to learn what is on the agenda. If there’s nothing of interest, they may skip. Or they may be on the lookout, as in this instance, for notice that an item of interest to them will come up.

Two motions filed by Hawaiian burial groups seeking to overrule rulings of the hearings officer and to recuse her were entertained at this meeting. Since the motions for the Grand Wailea Resort expansion were not heard until around 4 p.m. in a meeting that started at 9 a.m., those who did not have the revised agenda in hand would not be expected to have endured the grueling proceedings that wore out even Commission members, who were down to only five men by the time the matter came up
.

The hearing on the motion

No public testimony was accepted for this agenda item.

The first motion involved the Hawaiian burial groups seeking to have the hearings officer recused for a long list of erroneous decisions and other decisions exceeding the authority of the hearings officer.

The argument by the groups was that this long list of errors demonstrated a pattern of prejudice against the groups or bias for the developer.

The Commissioners expressed concern and appeared troubled over specific individual decisions and sought assurances that everyone could, in fact, work together. There was extensive legal argument and at one point, the developer's attorney, Bill Meheula, and the Hawaiian group's attorney, Bianca Isaki, entered into a civil but direct legal debate which was eventually cut off by the Commission's attorney, deputy corporation counsel Michael Hopper, noting that the attorneys should be directing their statements to the chair and not each other.

It appeared that the Commissioners were putting the Hawaiian groups on one side and the hearing officer and developer together on the other. After going through a number of the individual decisions of the hearing officer and finding room for “compromise,” they denied the motion for lack of satisfying the burden of proof for recusal.

The denial appeared to leave an open question whether the Commission was suggesting that the hearing officer was being biased or prejudiced but not to the level of recusal. The motion was to recuse the hearing officer, but it may be that the five remaining commissioners were treating the hearing officer and developer as being part of the same side and available to “compromise.”

The commissioners then denied the second motion after hearing each side, having established that the hearing officer can still compromise with the Hawaiian burial groups. Commission Kawika Freitas did express continuing concern that the Hawaiian burial groups have not been treated fairly in the proceedings from the beginning although based on the assurances of the hearing officer that she would do better, voted with the others to deny the motion.

What next

Disappeared News and the other media groups’ petition for mandamus to reopen the proceedings was only briefly mentioned by the parties during the motions and the matter returns to the hearing officer with her still-standing order to keep the proceedings closed.

The Grand Wailea Resort's attorney was adamant that the proceedings’ decision to close them to the public was correct.

Documents associated with the two motions, which are available from links on the agenda, give a glimpse into what is going on behind closed doors.