Posted 04/02/2012
To “avoid even the appearance of impropriety,” the state Board of Land and Natural Resources last week dismissed Steven Jacobson as the hearing officer in the contested case over a Conservation District Use Permit for the proposed Advanced Technology Solar Telescope on Haleakala. It also struck from the record his proposed and final findings of fact, conclusions of law, and decision and order.
In its March 29 minute order, the board authorized its chair to appoint a new hearing officer, who must issue a new recommendation within 60 days of being appointed. The officer may hear testimony from witnesses during that time, so long as it stays within the scope of each witnesses’ prior testimony.
Last month, shortly after he had recommended that the Land Board deny the petitioner, Kilakila o Haleakala, standing in the case, Jacobson emailed counsel for the University of Hawai`i’s Institute for Astronomy (IfA), asking them if they had anything to do with “inappropriate” pressure he says he received from the offices of Sen. Daniel Inouye and Gov. Neil Abercrombie to issue a quick decision.
In its order, the Land Board suggested that even if the IfA had urged a third party (i.e. Inouye’s or Abercrombie’s offices) to ask Jacobson about his progress, “such communications would be considered permitted ex parte communications under Hawai`i Administrative Rules … which permits requests for information with respect to the procedural status of a proceeding.”
The board found that Jacobson’s email to the IfA’s counsel, however, was an unpermitted ex parte communication.
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