Zendo Kern represented clients as a consultant before the Leeward Planning Commission on a rezoning application, and then as planning director, signed off on a plat map for the same project, records show.
The action was an apparent conflict of interest for Kern, and runs counter to assurances he made during County Council confirmation hearings that he would stay far away from projects he was involved in as a consultant prior to his appointment by Mayor Mitch Roth to the powerful Cabinet position.
Kern won council confirmation by a 5-4 vote Feb. 3, with some members of the public as well as dissenting council members citing among their concerns that his years as a planning consultant would create conflicts of interest with his duties as director.
As planning director just after the Dec. 7 inauguration of the mayor, but prior to his confirmation, Kern on Dec. 10 signed off on the tentative approval of a preliminary plat map, listing conditions that would have to be met for approval to be finalized, according to county documents.
Kern on Feb. 20, 2020, had represented the client, Jean K. Campbell Trust and Jeffrey S. Clapp Trust, before the Leeward Planning Commission, official minutes show.
“The tentative subdivision approval letter for Jean Campbell’s subdivision was inadvertently signed by me three days into my new position — prior to having all conflict protocols in place. Our amazing staff later caught the mistake, and a letter was issued last week, rescinding the subdivision’s tentative approval,” Kern said Tuesday.
“As promised, I am committed to recusing myself from any possible conflict, and this situation is no different. I take full responsibility for the mishap and applaud my staff for their diligence,” he added.
The paperwork is now being redone by other officials in the Planning Department.
When asked Wednesday if council members’ concerns about conflicts of interest were justified by the subsequent disclosure, Roth replied “absolutely not.”
He said it wouldn’t be unusual for an administrator to review a stack of documents and sign off on them without noticing the property owner’s name. Who owns the property is irrelevant in an administration that treats everyone equally, he said.
The mayor maintained that the disclosure of the apparent conflict showed that the system the administration put into place worked.
“I really see it as a non-issue,” Roth told West Hawaii Today. “You’re going to make it an issue after the fact. … This was different than other situations that people get caught and they fix it. We fixed it as quickly as we found out about it.”
The property came under greater scrutiny after it was recommended for consideration to the Public Access, Open Space and Natural Resources Preservation Commission for possible purchase in order to preserve the Kaloko public trail. The PONC Commission discussed the issue March 8, and documents were obtained by the newspaper later that week.
North Kona Councilman Holeka Inaba, who represents the district where the property is located, said he contacted Kern after learning about the issue.
“I’m happy that he is rescinding the approval notice and the process is being redone,” Inaba said.
Inaba, who had voted against Kern’s confirmation, said the possibility of conflicts of interest was one of his reservations about the appointment.
“I think it was a concern for everyone,” Inaba said, adding “I always hope for the best. … I hope that people are doing the right thing and that we’re following the law.”
Kern early on asked the county Board of Ethics for advice on how to handle potential conflicts, but that board hasn’t yet formulated an opinion on how potential conflicts should be handled.
It’s not known if other projects could have been signed off before protocols were put into place. The newspaper Feb. 8 requested a copy of the client list Kern provided board members that was discussed at its meeting but was told by ethics staff the list is “not available to the public as it was requested that it be kept confidential and the Board has not made a ruling on it yet.”
Roth said he’s confident the breach was a “one-off.” He doesn’t expect further problems.
“We have a process to keep those things out,” he said. “At the time we didn’t.”
