Former Mayor Harry Kim violated the county code against unfair treatment when he allowed protesters to close the Maunakea access road to some people but not others, the Board of Ethics said Wednesday in a unanimous vote.
The 5-0 vote, which followed a years-long board discussion, came less than 48 hours after Kim left office, taking him out of reach of any county penalties.
The vote was based on a petition from Lisa Malakaua, who said she was denied access to the mountain three consecutive days last December. Malakaua, who filed the complaint along with Mike Nathaniel, said she had initially filed a complaint with Gov. David Ige, but he sent it to Kim.
The road was blocked from June 16 to Dec. 26, 2019, by protesters, who call themselves “kia‘i,” or “protectors,” opposed to construction of the Thirty Meter Telescope on Maunakea. The kia‘i allowed some vehicles, such as those of maintenance workers, to proceed up the mountain. But tour groups and others weren’t allowed access. The protesters agreed to stand down, at least temporarily, while negotiations continued.
The vote was based on three factors: that some people could use the road and others could not, that the county used public resources and staff to clear land for the protester’s use and that Kim promised to alert the protesters before construction of the telescope resumed.
“Those that take oaths of office to enforce the laws and uphold the laws; it is their legal and moral responsibility to do that,” said Ethics Board member Larry Heintz, who drafted the motion.
Kim, who wasn’t at the meeting, said afterward that he was surprised by the ruling. He said he had no authority over the road until the governor notified him the state was pulling back because the telescope construction consortium was holding off construction temporarily.
“It was the only time we were given any authority,” Kim said. “I thought the world knew that.”
At that time, Kim said, he negotiated with the kia‘i in order to reopen the road, and the clearing of a small parcel of land for them to move their operations and his assurances they’d be notified when construction commenced were part of the negotiations.
“I needed to open it up to prevent confrontation, which we had months of,” he said.
The Board of Ethics, which had been considering its own complaint against the county administration, advised Malakaua to file a complaint with the Hawaii State Ethics Commission, after the local board was told by one of its attorneys it didn’t have jurisdiction because the road to the mountain is a state issue.
Malakaua read a letter Wednesday signed Nov. 23 by Dan Gluck, executive director of the state Ethics Commission, telling her the commission considered her petition and voted to dismiss it. The case is closed, the letter said, adding that state law made the commission’s deliberations confidential.
“I want to know — who’s going to take ownership?” Nathaniel asked.
Heintz was sympathetic to Malakaua’s and Nathaniel’s efforts.
“We’ve been playing ping-pong here for 11, 12, 13 months,” Heintz said.
Board Chairman Rick Robinson also understood the petitioners’ frustration.
“They have a valid concern and where do they address it?” he asked. “They must have some place that can address their concerns.”
Board members, who last month heard testimony from Kim, came to the conclusion that both the state and the county had oversight on the road because Kim had said the county resumed jurisdiction July 31, 2019.
“I believe the mayor had very good intentions. He may have overestimated his ability and skills to get the road open,” Heintz said. “I believe that is clear from the record. … I believe it was clear the road was not open to all citizens … and some citizens took it upon themselves to close that road.”
The board also voted 4-0, with Vice Chairman David Wiseman abstaining, to send a letter to the state Ethics Commission with a copy of corporation counsel’s 10-page letter stating the state had jurisdiction, along with the minutes from the November meeting where Kim told the board Ige was calling the shots until July 30, when he turned the controversy back over to the county.
Wiseman said the county board has no legal standing in the state case.
