A single small tree in front of the parking lot of what is now known as Joe Lukela Beach Park, on the Koko Head end of Maunalua Bay Beach Park in Hawaii Kai, is at the center of a simmering controversy that’s drawing increasing public attention.

The issue recently emerged publicly when the Honolulu City Council voted at its Nov. 1 meeting to accept a gift of installation of decorative lights on the tree and run electricity to the site to power them. The gift was valued at $40,000.

The lights have already been installed on the tree over the past two weeks, apparently by the private donor, and are being turned on at night.

A gift declaration form filed with the city in support of Resolution 17-278 identifies the donor as Makana Pacific Development. It was signed for the firm by Mike Miske, using the title of “partner.” The company was registered to do business in Hawaii in February 2017.

Miske initially offered to donate the lights along with solar panels to power them (a total value of $58,000), but the offer was later revised to drop the solar panels and a trellis where they would be mounted.

In testimony before the Honolulu City Council Committee on Parks, Community and Customer Service earlier this year, Miske acknowledged stringing lights on the same tree during the Christmas holiday season in 2016 without official authorization.

One of those who noticed the lights at that time was Natalie Iwasa, now chair of the Hawaii Kai Neighborhood Board.

“When I drove past, I said to myself, wait a minute, why was that tree lit up?” she said.

But Iwasa said the neighborhood board was on vacation and had no meeting during December. By the time of its next meeting, the lights had come down and the matter was not formally raised at that time.

Miske was eventually asked by the city to remove the unapproved decorations, but turned to Trevor Ozawa, who represents the area on the City Council, for assistance. Ozawa then worked with the parks department to obtain approval for Miske’s plan.

While questions about the tree lights started with their unauthorized appearance last year, they have continued to the present, along with a sense among a number of community leaders and organizations that they have been bypassed during the nearly year-long discussions of the lights.

There are additional questions about privatizing parks by turning over their care and control to private parties, no matter how well intentioned.

Critics also cite environmental concerns, noting that the designated tree is located just feet from the high water mark, where electrical power could create unanticipated safety hazards. They also note that installing lights so close to the ocean could run afoul of laws restricting shoreline lighting, and run counter to efforts to protect the dark night sky from further light pollution.

And the Office of Information Practices is reviewing a complaint that lack of public notice of the council’s final vote to accept the gift violated the state’s Sunshine Law.

“It’s a tough issue for something that seems so small, lighting a tree,” commented Kenny Amazaki, senior advisor and chief of staff for council member Ozawa.

The Man Behind The Lights

Mike Miske is also the man behind two better known companies, Kamaaina Termite and Pest Solution and Kamaaina Plumbing and Renovations, along with several other companies registered to do business at the same 940 Queen Street, Unit B, address.

He has a bit of a checkered past.

He was a co-owner of the former M Nightclub in Honolulu, which was closed in November 2016 and reopened under new management following news of the latest in a string of alleged assaults of patrons by nightclub staff.

In May 2017, the Honolulu Liquor Commission fined the club’s owners $8,250 for what the commission termed “serious” violations of commission rules, including failing to prevent or suppress violence, and having bouncers and some bartenders who were not registered as employees.

Miske has a criminal history that includes felony convictions dating to the 1990s for theft, kidnapping, assault and fraudulent use of a credit card. He was convicted of misdemeanor assault in 2006.

He made news in January 2013 when he allegedly hit an NFL football player in the head with a champagne bottle in a confrontation with the player and his brother at the M Nightclub. Miske was charged with second-degree assault, but the  criminal case against him was dismissed when the victims declined to return to Hawaii for the trial.

“It’s a tough issue for something that seems so small, lighting a tree.” — Kenny Amazaki, Councilman Trevor Ozawa’s chief of staff

The victim of another alleged assault in 2012 described the violent attack involving Miske and security guards in a chilling account republished on the Hawaii News and Information blog.

In testimony before the City Council’s parks committee back in May, Miske said the tree lights were initially meant as a memorial for his son, Caleb-Jordan Miske-Lee, a 2012 Mid-Pacific Institute graduate. Miske-Lee died in March 2016 of injuries received in a two-vehicle traffic accident in November 2015.

Miske said he later learned that many people have scattered the ashes of relatives in Maunalua Bay near the park, and he now says the tree lights are meant for all of them.

He was supported when the issue came before the parks committee by William “Buzz” Hong, former executive director of the Hawaii Building and Construction Trades Council, and Nate Lum, a longtime leader in the ILWU. Hong has been a familiar face in city government in recent years, having served on the board of the Honolulu Authority for Rapid Transportation, the agency that administers Honolulu’s controversial rail project, from 2011 until earlier this year, when he resigned to take a seat on the Honolulu Fire Commission.

Real estate records show Miske and Hong both own homes in the Portlock area.

A lawsuit filed on Miske’s behalf last week blames his son’s death on the driver of the other vehicle, the company that owned it, and a man in the same car as Miske-Lee, who the lawsuit says was the driver. The lawsuit alleges each was grossly negligent and contributed to or caused Miske-Lee’s death. It seeks unspecified damages.

One person named in the suit is Jonathan Fraser, a close friend of Miske-Lee, who the lawsuit says was driving the car. Fraser survived the accident, but suddenly went missing in July 2016. Broadcast news reports indicate HPD homicide detectives and the FBI have been involved in the investigation of his disappearance.

Clarification: This story has been updated to reflect that the lawsuit contends Fraser was the driver. The autopsy cites medics as reporting that Miske-Lee was found pinned in the driver’s seat wearing a seat belt.

Several messages seeking comments left for Miske at the Makana Pacific Development telephone number provided on his gift declaration form, were not returned.

Sidestepping The Community?

After the unauthorized lights were removed earlier this year at the city’s request, Miske turned to Ozawa for suggestions on how to go through channels for approval to light the tree in Joe Lukela Beach Park.

Ozawa initiated discussions with the parks department, but could not reach an agreement with the administration.

In response, Ozawa prepared and introduced Bill 40, which would have established an “Adopt-a-Tree” program allowing Miske’s lights to be approved, along with similar efforts in other city parks. The measure drew continued opposition from Parks Director Michele Nekota, who expressed concern that opening the door to a program of wholesale installation of lights by private parties could cause damage to trees, interfere with regular maintenance and exceed the resources of the department to administer.

“With over 200,000 trees in our inventory and the use of private contractors as well as in-house crews for tree maintenance, it is impractical to contact and coordinate maintenance of each adopted tree,” Nekota wrote in testimony submitted to the committee.

Ozawa’s bill was deferred, but the councilman explained this was part of a “deal” he made with the administration.

“We reached an agreement … with some of the nearby residents who are planning to adopt the nearby Lukela Park and take care of the park,” Ozawa told the Hawaii Kai Neighborhood Board in May, according to an archived recording of the meeting

“They are lighting the tree in honor of those who have passed away,” he said.

Ozawa told the neighborhood board he had met a lot of resistance, and used the proposed “Adopt-a-Tree” bill as leverage to pressure the parks department to approve Miske’s tree lighting plan.

“The city didn’t want my bill to move forward, so they worked out a deal with this community group,” Ozawa.

Iwasa, the neighborhood board chair, said she was asked after the meeting to monitor Bill 40 so that the board could have the opportunity to take a position on it later, if desired. However, the bill was deferred by the council, and so it was not discussed further by the board.

The tree lights reappeared several months later when the parks department submitted Resolution 17-278 to accept Miske’s $40,000 gift of lighting.

The resolution was quickly approved by the council’s parks committee on Oct. 24. In a meeting of the Hawaii Kai Neighborhood Board that same evening, the resolution was not mentioned by Ozawa or his staff.

And when Res. 17-278 did finally come to the City Council for a final vote a week later, it did not appear on the meeting agenda. Instead, it was added on at the last minute without any advance public notice.

“I don’t think the way this was done was proper,” said Iwasa. “It was done in a stealthy manner.”

Amazaki, Ozawa’s chief of staff, defended the way the tree lights issue was handled.

“The person putting up lights is not popular with others who use Maunalua Bay,” Amazaki said. “But he came to us as a constituent, just like the people now questioning the lights came to us to rename the park for Mr. Lukela.”

“The council member (Ozawa) thought, ‘this isn’t hurting anything, and its not costing the city anything,” Amazaki said.

“Lighting up areas cannot be a bad thing,” he added. “It becomes safer because people can’t hang out in the dark. Maybe we have less illegal activity.”

The Office of Information Practices, acting on an anonymous complaint, wrote to Honolulu City Council Chairman Ron Menor on Nov. 9, seeking additional information about the council’s handling of the resolution. The council’s answer was due last week.

According to the complaint, a copy of which was forwarded to the council chair: “This lightning of the tree is in a highly visible area in Hawaii Kai right near the ocean. This proposed action is of major importance to the community. It not only affects the City Park in Hawaii Kai and our community but City parks throughout the island. It sets a precedent for similar actions throughout the island.”

Enter The Sunshine Law

The Sunshine Law is meant to assure that meetings of government agencies are as open to the public as possible. And that means that in most cases, the public is allowed to attend and to participate with questions or comments on any agenda item.

One key element is that a meeting agenda must be substantive and complete enough so that someone will be able to know whether the meeting will deal with anything of interest to them.

So the term “sunshine” is usually understood to be related to public access and transparency.

But the Honolulu City Council apparently has its own interesting variant.

In council speak, a “sunshine item” is something that doesn’t appear on the public agenda but is being added on at the last minute without any advance notice to the public. It is, really, the opposite of sunshine.

State law does allow new agenda items to be added after a meeting agenda is published, “provided that no item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons.”

“I don’t think the way this was done was proper. It was done in a stealthy manner.” — Natalie Iwasa, Hawaii Kai Neighborhood Board chair

And that’s what happened with Resolution 17-278. The measure was added to the agenda at the last minute as a “sunshine item” taken up at the tail end of the council’s Nov. 1 meeting.

Archived video shows that the council never tried to determine whether this item would affect “a significant number” of people or whether it was “of reasonably major importance,” factors which should have precluded its addition to the agenda.

Instead, Menor, the council chair, asked vice-chair Ikaika Anderson to introduce the resolution. Anderson read the title, and then stated that it involved the lighting of a tree at Maunalua Bay.

Menor then went through the motions, first asking whether there was any opposition from council members to adding the item to the agenda, then dutifully asking, “Any testifiers with regards to this sunshine item?”

But of course there wasn’t anyone there to testify.

There were many individuals and organizations that would have likely wanted to testify if they had an opportunity, but they had absolutely no way of knowing the measure to be voted on involved a tree in their neighborhood that had been a topic of discussion for many months.

How Many Is ‘Significant’

The Sunshine Law’s language is admittedly somewhat vague when describing those items that cannot legally be added to a meeting agenda. What is “reasonably major importance” or a “significant number of persons”?

In a 2013 decision in the case of Kanahele v. Maui County Council, considered a major Sunshine Law decision, the Hawaii Supreme Court tried to answer these questions.

“Determination of whether an item ‘is of reasonably major importance’ and when board action thereon will ‘affect a significant number of persons’ is fact-specific and must be made on a case-by-case basis,” the court said, quoting from a 2006 opinion of the Office of Information Practices.

However, and perhaps more to the point, the high court cited a 2003 University of Hawaii Law Review article by the late Honolulu attorney Jon Van Dyke.

“A matter is of reasonably major importance if it is of interest to any sector of the community, and an agenda item would affect a significant number of persons if it would concern more than a handful of individuals,” Van Dyke wrote.

There appears little doubt that if these criteria had been applied, given the year-long background of the controversy over the tree lights, the matter of the gift would not have qualified as a last-minute addition to the council’s agenda.

But while the community’s questions are just now getting a formal, although after-the-fact, hearing at the neighborhood board, the new lights have already been strung on the tree and are being lit at night.

The issue of the Joe Lukela Park tree lights is on the agenda for the meeting of the Hawaii Kai Neighborhood Board scheduled for Tuesday at Hahaione Elementary School. The meeting starts at 7 p.m.