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HomeMy WebLinkAbout09/21/2011 Regular Council MeetingCOUNCIL MEETING September 21, 2011 The Council Meeting of the Council of the County of Kaua'i was called to order by the Council Chair at the Council Chambers, 3371 -A Wilcox Road, Lihu'e, Kaua'i, on Wednesday, September 21, 2011 at 11:10 a.m. Council Chair Furfaro: I also would like to point out to the audience and to the viewers that this is our last meeting in this temporary location. The Historic Building was blessed with a soft opening today and we will be returning next week to the oldest active county building in the State of Hawaii, which is the Kauai Historic County Building. So this is our last meeting. On that note, Mr. Clerk, could you please do the roll call? The following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable KipuKai Kuali`i Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro, Council Chair APPROVAL OF AGENDA. Mr. Chang moved for approval of the agenda as circulated, seconded by Mr. Rapozo. Council Chair Furfaro: Any discussion from members? I am going to ask that we take, Mr. Clerk, item 2011 -271 first as we have members that are here to represent the grant for the planning department who also have a departure time from Kauai County. If there's no further discussion, all of those in favor, signify by saying aye. The motion for approval of the agenda as circulated was then put, and unanimously carried. MINUTES of the following meetings of the Council: Special Council Meeting of August 17, 2011 Special Council Meeting of August 24, 2011 Public Hearing of September 7, 2011 re: Bill No. 2411 Mr. Chang moved to approve the minutes as circulated, seconded by Mr. Kuali`i, and unanimously carried. Council Chair Furfaro: For the record I also want to note, before we go into the Consent Calendar, in the future going forward when we do call for an executive session meeting, I'm going to ask for a roll call vote from the members, just as a new practice. But on that note, we will go to the Consent Calendar. COUNCIL MEETING - 2 - September 21, 2011 CONSENT CALENDAR: C 2011 -266 Communication (08/04/2011) from the Deputy Director of Finance, transmitting for Council consideration, two proposals amending Chapter 5A of the Kauai County Code 1987, as amended, relating to real property tax, as follows: The first proposal amends the requirements for those who receive a home exemption, including raising the exemption for those with a limited income, altering what is necessary to obtain the income exemption, repealing the circuit breaker credit, and changing the tax limit for those with permanent home use; advances the deadline dates for several provisions for tax year 2012 in anticipation of major date changes in the 2013 ordinance; increases the Director of Finance's ability to compromise claims; standardizes a three -year statute of limitations for errors both for and against a taxpayer and the County. This proposal would take effect immediately. The second proposal advances the date of assessment from January 1 to October 1 and advances the deadline for appeals, exemptions, dedications and other tax - related matters; clarifies the process by which the Council calculates and sets tax rates; classifies a property for tax rate purposes based on actual use while the value of the property remains based on highest and best use and requires a parcel to be valued as a whole instead of with separate land and building values; reduces the percent needed for an owner to show himself aggrieved by an assessment and raises the fee required in order to appeal to the County's Board of Review; and gives those who provide long -term affordable housing the tax rate of a homesteader and the same tax limitation as those with permanent home use. This proposal would be implemented in the 2013 tax year. C 2011 -267 Communication (09/01/2011) from the County Engineer, transmitting for Council consideration, a proposal to amend Ordinance B- 2011 -733, Relating to the Fiscal Year 2011 -2012 Capital Improvements Budget (CIP) as follows: (1) From the General Fund, a $200,000.00 transfer from Puhi Road Construction and appropriation to the following projects in the General Fund: (a) Kapa`a Baseyard Structural Renovation (new) $20,511.00 (b) Pi`ikoi Retrofit -FEMA (match) (new) $159,000.00 (c) K61oa Road Safety Improvement (new) $15,000.00 (d) Hanap6pe Bridge Pedestrian Walkway Rep. $5,489.00 (match) (2) From the Bond Fund, a $905,821.00 transfer from the following projects: (a) K5ke'e Road Resurfacing (match) $34,821.00 (b) Pi`ikoi Building Renovation $871,000.00 and appropriation to the Kapa`a Baseyard Structural Renovation in the Bond Fund. (3) From the Highway Fund (CIP), a $405,963.00 transfer from Islandwide Resurfacing project and appropriation to the following project in the Highway Fund (CIP): (a) Maluhia Road (match) (new) $125,000.00 (b) Kamalu Bridge Stream Erosion (match) (new) $30,000.00 (c) Resurfacing Various Collector Roads FHWA $176,452.00 COUNCIL MEETING - 3 - September 21, 2011 (d) Hanapepe Road Design (match) (new) $50,000.00 (e) Hanapepe Bridge Pedestrian Walkway Rep. $24,511.00 (match) (new) Mr. Chang moved to approve the items on the Consent Calendar, seconded by Mr. Kuali`i. Council Chair Furfaro: Thank you. Okay, in our new rules before we go any farther, it is the opportunity posed to the audience on the consent calendar to take testimony from people in the audience who choose to speak in advance of the meeting. I also would like to share with you that if you choose to speak in advance now, we will not take testimony when the actual item comes up later in the day. Is there anyone in the audience that chooses to give testimony on the consent calendar? Seeing no one, may I ask all members if there are no further comments, may we move to accept? Mr. Rapozo: We just need to vote. Mr. Kuali`i: It was moved and seconded. Mr. Nakamura: (Inaudible.) We just need a vote. Council Chair Furfaro: That's what I just called for. We just sang Hawai i Aloha, let's try and do this in concert. All in favor signify by saying aye. The motion to approve the items on the Consent Calendar was then put, and unanimously carried. Council Chair Furfaro: Outstanding. Okay, Mr. Clerk, you heard my request earlier at the start of the meeting to take an item out of order because of travel plans. Could you please read item 271, I believe? There being no objections, communication C 2011 -271 was taken out of order. COMMUNICATIONS: C 2011 -271 Communication (09/14/2011) from the Interim Director of Planning, requesting Council approval for the following: (1) To apply for, receive, indemnify and expend a Fiscal Year 2011 U.S. Housing and Urban Development (HUD) Sustainable Communities Regional Planning Grant; and (2) To enter into a multi - jurisdictional "Memorandum of Understanding" as required by HUD. Mr. Bynum moved to approve C 2011 -271, seconded by Ms. Yukimura. Council Chair Furfaro: Thank you very much. I would also like to point out in the audience before we go further, we have Kim and Christian here from Maui County. I believe they are here for the Hawaii Conference on Planning. They are part of the Maui delegation. They're in the audience. I just want to welcome you to Kauai and acknowledge your presence from the beautiful island County of Maui. Thank you for being here. COUNCIL MEETING - 4 - September 21, 2011 On that note, I'd like to suspend the rules, ask Mr. Crowell from our planning department as well as his guest, I think is the individual administering the grant to come up and give us some background and be prepared for some questions. Do we have another chair, Scott? Thank you so much. There being no objection, the rules were suspended. DEE CROWELL, Deputy Planning Director: Good morning, Councilmembers. Councilmembers: Good morning. Mr. Crowell: Dee Crowell, Deputy Planning Director. With me today is Felipe Zubia, a principal in the firm of ReSEED Advisors out of Phoenix, Arizona. I'll describe his role in this whole grant process in a minute. But what we are applying for or hope to apply for is a grant from the Department of Housing and Urban Development's Regional Sustainability Planning Program. And this is the same grant source that we applied for last year. Last year Kauai was the whole region. This year, with the help of Felipe, we're applying as a state with all four counties and the University of Hawaii, along with the Governor's Office that has provided support for this program. So the pot of money that Kauai will get is still the same, but the overall total amount of the grant will be larger because of the other entities involved. And Felipe has been very instrumental in getting all the counties together and getting the University of Hawaii onboard. So with that, any questions? Council Chair Furfaro: Could Felipe further expand on his role? Felipe, may we ask you to further expand on this? Mr. Chang: Excuse me, also can we get your last name again? FELIPE ZUBIA, ReSEED Advisors: Yes, again, Felipe Zubia, z- u- b -i -a, and I am a principal with the planning and engineering design firm ReSEED Advisors. My role is to help coordinate with the university and gain the support of the partners that are going to be required to administer the grant. As Dee explained, it's the same grant program that the County of Kauai had applied for last year and that is through the Sustainable Communities Planning Grant Program through HUD. I am actually working on another one of these grants that was awarded during the first round in the State of Arizona. In my experience and my relationship in working with HUD and knowing that Dee had filed the first time, we had talked to them about the possibility of Hawaii receiving a grant. They did know that Kauai had submitted a grant. One of the concerns, however, was that the grant program itself is for a region, a larger area, not just one county. So their concern was that you were raising one county and leaving the other three behind. So again, one way to overcome that was to develop a consortium that included all the counties and in fact the County of Maui has been very supportive through their deputy director, Michelle, as well. So my role is to help bring the experience from my experience in working with HUD through these grants and help to develop the partnership at the consortium level. Council Chair Furfaro: Okay, thank you very much. I'm going to recognize Vice Chair Yukimura, then Mr. Rapozo, then Mr. Bynum. So the floor is yours, Vice Chair. Ms. Yukimura: Yes, thank you. So deputy director and Mr. Zubia, what are we getting out of this grant. I mean what's going to be the end results. COUNCIL MEETING - 5 - September 21, 2011 Mr. Zubia: The overall grant, as Dee had mentioned, has a total amount of $5 million. What is going to happen... Ms. Yukimura: $500,000? Mr. Zubia: No, $5 million. Ms. Yukimura: $5 million total grant, okay. Mr. Zubia: The bulk of the grant is going to be utilized for statewide planning. Each of the counties, however, is going to get a sub -grant of $500,000. As Dee mentioned that is the amount that was applied for last year as well. Ms. Yukimura: What kind of statewide planning? I've seen statewide planning and it hasn't gotten anywhere. Mr. Zubia: Well, I understand. It's actually going to be a sustainability plan. A plan that develops the integration of land use planning at the state level along with transportation planning and housing, as well as economic development. So it'll be more of a comprehensive look at how all these pieces fit together, not just land use, not just coastal protection, but all these different elements. Ms. Yukimura: That's a really great approach and I can see ... I mean that's certainly what has been talked about and advocated at the Smart Growth conferences, the new partners for sustainability. Can you give us more detail about what our county grant is going to do, the half a million? Council Chair Furfaro: Excuse me, may I just intercede? Could you expand on that question to include the period of time we have to spend the money too? Mr. Crowell: Okay, if awarded, the grant would be for three years and as Felipe said, the amount would be for $500,000. Ms. Yukimura: Can you speak into the mike so that everyone can hear you because I think the audience is having a hard time. Mr. Crowell: Oh, okay. Ms. Yukimura: Thank you. Mr. Crowell: The grant amount is for $500,000.00 and it's for three years. We hope to use it to update our General Plan. We've had a lot of plans swirling around the county, but I think we need the general plan to kind of put it together as a cohesive whole. So that would be where we see this money being directed. Ms. Yukimura: So how will this new general plan be different from the existing general plan? Mr. Crowell: Well, having worked on the existing general plan, that plan was focused on developing a vision of preserving our rural communities. Now this general plan, we'll probably take it one step further in the sense that the COUNCIL MEETING - 6 - September 21, 2011 sustainability component will come to the front, so not only in planning, but in transportation. You know, we were already working with the transportation agency in developing their plan. We have the important ag land study being developed as we speak, trying to fold that in and see if we can make a cohesive whole out of this, all of the planning being done. Ms. Yukimura: Well, based on the charter amendment growth issue that's before the council right now, the general plan really didn't work. It didn't seem to really control growth or even define clear targets for the community. So will this new general plan based on sustainability principles, which I presume is going to be the goal, we're going to have our general plan based on sustainability principles? Mr. Crowell: Well, the thing on Smart Growth is it's about growth. So that being said, yes, sustainability principles, we have to see how sustainable even our current TAU bill is, whether that allows for any level of growth. I think that's one of the areas that has been earmarked in the last budget was for this kind of study to determine the growth rate actually. Ms. Yukimura: Well, the situation that is being allowed is allowing at least another 4,000 to 5,000 units above the 9,000 units that we have, so it's not a no- growth plan. And so the question is what's sustainable and how do you determine sustainability. Is that going to be addressed in the general plan? Council Chair Furfaro: Dee, before you answer that, I want to make a clarification. The general plan did not earmark 4,000 units. The general plan acknowledged 3,700 units that were actually zoned prior to this last general plan. I just want to make that correction being that I was a citizen who sat on the last general plan update. So just to correct it, it wasn't the general plan that earmarked that potential density. It was the zoning that went as far back as 70s, 80s and even the 90s. So just for a moment I wanted to clarify that. Ms. Yukimura: Thank you for that correction. The thing, though, is that the general plan, it seems to me, did not look at what kind of infrastructure we have to support growth and what kind of growth we wanted in terms of social and economic factors and then how we wanted to shape that growth, which has different implications. That's a key sustainability issue, concentrated growth or spread out growth. So it seems to me that the general plan did not take into account some key sustainability principles and I'm thinking if we're going to get these moneys to do a sustainability plan, will we be doing that? Will we be doing a general plan that is different from the past in that it is really grounded in sustainability principles? Mr. Crowell: Well, one thing I will say about the existing general plan, any general plan, it's not a regulatory document, so it doesn't set a level of growth. What the existing general plan said, this is what's already in the pipeline, this is the zoning we already have, this is the kind of growth we can expect and given that, we need to upgrade the infrastructure. Ms. Yukimura: I think that's one way of looking at a general plan. I think there are other ways to do it. Mr. Crowell: Well, that's the way we did it 10 years ago. Ms. Yukimura: That's correct. Is that how we're going to do it again? COUNCIL MEETING - 7 - September 21, 2011 Mr. Crowell: think so. Well, do we want to do it that way again? I don't Ms. Yukimura: Well, you're the one proposing a plan, to use this money, the sustainability moneys to use it for our general plan. So I'm just asking, how are we going to incorporate the purpose of these moneys into how we do our general plan? Mr. Crowell: Well, I think we have to dig down a little deeper, that's all. Again, we're not setting regulatory kinds of standards in the general plan. I think that's one of the problems with this whole charter amendment. It's saying that the general plan stated a regulatory standard, which it didn't. Ms. Yukimura: So it may not be regulatory standards, but I think it's... my understanding of a general plan is it can set some very good growth targets and then it may be implemented in a regulatory document. But in the case of the existing general plan, it did not set any targets based on sustainability principles and that's ... I mean what I hear is the philosophy, well, we're going to look at how much growth we're likely to have and we're going to figure out how to accommodate it, and I think the citizens of this community are saying that is not what we want. And I'm really concerned if we're going to do a general plan without clarity about what this general plan's going to do for us because that's where I think the problem came up with the charter growth amendment. Citizens had one idea of what they thought the general plan could do and in fact in talking to our staff, the planning director, and long -range planner, it's clear to me that there are ways to create a general plan that can be much clearer about our growth targets, much more well grounded in terms of what infrastructure it's going to take to support it, and so I guess I'm looking for some assurance that that's how we're going to approach this. Mr. Crowell:. Well, I mean that was what we tried to do 10 years ago, but until you get the other agencies involved with infrastructure and—unless you get the agencies involved with infrastructure development, it's hard to tell them what to do. Ms. Yukimura: Well, isn't this the opportunity that you're having at the federal level you have HUD working with EPA working with DOT. So how are we going to do that? Mr. Crowell: This is the right opportunity, but again I don't want to over promise. We just have to see how it plays out, I think. Council Chair Furfaro: Mr. Crowell, I understand your point and we can put a new item on the agenda to have this discussion prior to getting to the general plan. I hear what you're saying. You don't want to over promise and under deliver, but perhaps the item that's in front of us now is about being part of this grant for an opportunity to expand the work that we are going to start on the general plan. So I'm going to ask the Vice Chair if I can put another item in Councilwoman Nakamura's committee to have this philosophical discussion. But in the meantime I would ask if you could yield the floor for questions from Mr. Rapozo. Ms. Yukimura: Absolutely, yeah, thank you. Council Chair Furfaro: Okay. COUNCIL MEETING - 8 - September 21, 2011 Mr. Rapozo: Thank you, Mr. Chair, and thank you folks for being here today. I kind of want to bring it back to this communication here. The moneys, should we be awarded, would be to supplement the moneys that we already approved in the budget. Mr. Crowell: Right or in place of. Mr. Rapozo: You need to talk into the mike, Dee, because I'm having a hard time hearing you and I'm sure they are too. Mr. Crowell: We have a general idea of how much it will take to do the general plan. This can be in place of what was already... Mr. Rapozo: Right and that's the direction of my question. I don't want to debate the general plan because we did that in the budget. What I want to know is should we get $500,000 that frees up the $400,000 or whatever we put in for other uses. That's kind of the direction I want to go with this. You know we have an opportunity for some federal money, HUD money that we can use to replace the taxpayers' money, the local taxpayers' money and free up that money for something else. The budget has been approved. The general plan, as far as during the budget hearings, your department came up and did the presentation of how you plan to proceed. So I'm going to support this obviously because I think it's a wonderful idea. If we can partner up with the other counties for once and get access to some moneys that typically we would not get ... because the general plan is the direction. I think that it's an appropriate use of these funds. But as far as what you're going to do with it, I mean I think that discussion has been had already, so I'm prepared to support this and I'm hoping we can get the funding. The only other question is when do you anticipate the release of the funds? Mr. Zubia: Of course as you can imagine that's pretty hard to track. The deadline for the grant is October 6, 2011 and typically through this program we'll get word within 45 to 60 days. We suspect probably beginning to mid - December they'll make the announcement, and the only requirement with regard to the start is we're required to be able to start within 90 days. So really what we're looking at is beginning of calendar year 2012. Mr. Rapozo: So, Dee, that would fall into our existing current fiscal year? Okay, thank you very much, Mr. Chair. Council Chair Furfaro: Okay, Mr. Rapozo, just to clarify for everybody before I give the floor to Mr. Bynum, our CIP Budget, the administration asked for $1.4 million for the general plan update. We put in $800,000 this year with the intent of putting the other $600,000 in the next budget year, so just to reflect on our budget process. Mr. Bynum, you have the floor. Mr. Bynum: I have a comment and then a lead to a question. I went to the Smart Growth conference when Ray LaHood and Shaun Donovan and Representative Lisa Jackson took the stage and said, everything is interrelated and under the Obama Administration, Transportation, EPA and Housing are going to collaborate and encourage communities to collaborate on their general plans, our sustainability plans. I thought it was a really exciting presentation. I came back to Kauai. I talked to planning folks and KPAA was already kind of onboard with this, and we all encouraged the administration to apply and you indeed did. And I want to really say that that had some foresight. Unfortunately we didn't receive the grants, but now you're here saying we learned from that process. Is that correct? COUNCIL MEETING - 9 - September 21, 2011 Mr. Zubia: That is correct, Councilmember. Mr. Bynum: And so now it's more of a ... because we all knew that we had to explain the political subdivisions in the State of Hawaii because it's so different than the mainland, an obstacle to that grant. We had to argue in essence that Kauai is a region because we don't have city government, right. Have I got this right? Mr. Zubia: That's exactly right. Mr. Bynum: And so now you're saying that part of that lesson learned was if we apply as a statewide, we're going to have a better opportunity. Is that correct? Mr. Zubia; Absolutely correct and the idea is to in fact get the other counties onboard as well as the Oahu Metropolitan Planning Organization in concert with the governor's office as well. Mr. Bynum: So I think this is an exciting potential and it was very encouraging to come back to Kauai and see that we were thinking the same way and that the federal government was onboard. I've been responding to emails in the last three weeks that the Office of Sustainable Communities that the EPA is under threat from the republicans on the mainland, so this is like this great effort that's occurred over the last couple of years and it's in jeopardy. But these grants will go through, right? It's just whether there will be that future collaborative effort at the federal level. Is that right? Mr. Zubia: Yes and no. There was a threat to that program, but I'm happy to report that as of yesterday the senate preserved that funding and in fact it will be renewed for a third round in 2012. Mr. Bynum: Great, so all of those letters I was sending maybe helped. Mr. Zubia: I think so. Mr. Bynum: That's really great news because we had this similar thing with transportation enhancements this month that were under threat and they got reauthorized. So I just want to say this has my wholehearted support and I want to commend the state and the planning department for pursuing it for the second time. It's a very noble effort. Thank you. Council Chair Furfaro: Okay, Planning Chair Nakamura, you have anything? Okay, Councilmember Kuali`i. Mr. Kuali`i: Aloha and mahalo for being here, just one quick question. In your opening remarks you mentioned all the counties, but in our correspondence from our interim planning director, it only mentions Maui and Hawaii County. Is the City & County of Honolulu also a partner? Mr. Crowell: We had hoped to get the City & County onboard, but they applied for and got a grant last year for the Challenge Grant. So they had reservations about performing on two grants. So we got the Oahu Metropolitan Planning Organization onboard and willing to participate. Mr. Zubia: If I may supplement that. COUNCIL MEETING -10- September 21, 2011 Mr. Kuali`i: Please. Mr. Zubia: As Dee mentioned they got a Community Challenge Grant last year and they're really struggling with making sure that they get all the reporting requirements done with that and they hesitated taking on more responsibilities. With that being said, they did tell the Oahu MPO that in fact they support their application and encouraged them to apply, and so the Oahu MPO will be representing the interest of the whole island. Mr. Kuali`i: Can you repeat the name of the Oahu organization. Mr. Zubia: The Oahu Metropolitan Planning Organization. I think they used to be called OMPO. I met with the director earlier this week and he said they're trying to rebrand themselves as Oahu MPO. Mr. Kuali`i: Thank you, Mr. Chair. Council Chair Furfaro: Thank you, Councilmember. I'm going to allow the Vice Chair another opportunity to ask you some questions, but we have a full agenda today and the item on the table today is about applying for a portion of this grant as a joint activity. So Vice Chair Yukimura, you have the floor. Ms. Yukimura: Thank you, I only have one question. I was thrilled when I heard that we were applying for these moneys and I really applaud and thank Councilmember Bynum for bringing back to Kauai the opportunity. But I want to see it make a difference. I don't see these moneys as just supplementing our needs for a general plan. My focus is on the words sustainable communities and I want to know how we're going to move towards sustainability, which I believe is the intention of this grant. So could somebody please tell me how we're going to use these moneys to move our community toward a sustainable community? Council Chair Furfaro: Before you answer that question, I just want to clarify something. The intent of this opportunity is based on ... it will help us address programs that are in action now, for example the important ag lands, water, transportation, housing, some of the things that Mr. Bynum shared that he wrote in his letter. Those items that I've just summarized will help us gather that in one collective plan. Am I making the right assumption here? Mr. Crowell: Yes, well, yeah. Because this is a sustainability grant, yes, the focus... although it could replace some of the money that the council has allocated for the general plan, the focus is going to be on sustainability. Now how we get there still has to be decided, I think. We didn't sit down and talk about and investigate where the deficiencies are in each plan and then see where we need shoring up. Council Chair Furfaro: Okay. Vice Chair, I just wanted to summarize that because 10 years ago, people who were on the general plan, we didn't recognize that if we practiced sustainability it's the Hawaiian kapu system, right? I mean that's the buzz word in the last 10 years, but our Hawaiian ancestors have been practicing you don't harvest he`e from the reef unless it's two pounds. You going make one big luau in the mountain, you only take the ti leaf you need. You only fish for what you need in Kalihiwai Bay, okay? So you leave an abundance of items so that it can be replenished. So, the Polynesians and Hawaiians in particular had been practicing COUNCIL MEETING - 11 - September 21, 2011 sustainability which we've just recently in the last 10 years have really become enlightened to. It's not kapu, no trespassing. That's the real estate terminology for that. It's sustainability. Ms. Yukimura: Yes, Mr. Chair, I appreciate those specific examples of how you apply sustainability principles to natural resources and what I've been looking for is how we're going to apply sustainability principles to land use, planning, transportation and so forth. We always bring all those aspects together in our general plan, but how is it going to be different this time? So that's my question and if the answer is not yet clear, I don't know how it can be clear because it seems to me we need to talk about that in our grant application, but then if it's not clear yet, I look forward to the time when we will be able to really show how this is going to be a different kind of general plan because it's going to be built on sustainability principles. Council Chair Furfaro: And for all the members, I hope you heard me earlier that I do plan to put an overview or some strategic thinking together as an agenda item to hear from the planning department on those specific types of questions, Dee. Ms. Yukimura: Thank you. Council Chair Furfaro: That will happen at the request from Vice Chair Yukimura to put it in Councilmember Nakamura's department as a new item. Mr. Crowell: Just as a way to not answer the question, 10 years ago when we were doing the general plan, we had a person from the Oregon Progress Board talk to some people on Kauai. He said they don't try to use the word sustainable anymore because nobody can agree as to what it means. I think 10 years later, I still think although there are many definitions out there, I don't think we have an agreed upon definition of the word sustainable. Council Chair Furfaro: Thank you. There is a different level of .. it's not clearly objective and it is subject to some subjective views. Thank you for that. On that note, members, I'm going to take some public testimony, if I can. Gentlemen, thank you. Dee, please share my approach with the planning director on having more discussion on this maybe in October. Thank you very much, gentlemen. Is there any members of the public that would like to testify on this item? Seeing no one, I will call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: We have a also looks like we have a date to move on application deadline of October 4, I believe. Ms. Yukimura: Felipe? motion to approve and a second, and it . I thought I heard from Francisco an Council Chair Furfaro: The application date, we have a deadline here of October 6. Okay, thank you very much. Okay, any further discussion from the members before I call for a vote? No, thank you. Okay, can I ask for a roll call vote, please? COUNCIL MEETING -12- September 21, 2011 The motion to approve communication C 2011 -271 was then put, and carried by the following vote: FOR APPROVAL: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. C 2011 -268 Communication (09/01/2011) from the Fire Chief, requesting Council approval to accept a donation from the Kauai Lifeguard Association, of an All Terrain Vehicle (ATV), valued at approximately $8,577.30, for the Ocean Safety Bureau: Mr. Kuali`i moved to approve C 2011 -628 with a thank you letter to follow, seconded by Ms. Yukimura. Council Chair Furfaro: The ending of that was Vice Chair Yukimura indicating we need to send a thank -you letter. Is there anyone that wants to testify on this item? If not, all those in favor, signify by... Mr. Kuali`i: Mr. Chair, can I? Council Chair Furfaro: Yes. Mr. Kuali`i: I just think we should mention that the Kauai Lifeguard Association, their president Monty Downs and Andy Melamed, Roberta Charles and David Rullo, mahalos to all of them. Council Chair Furfaro: Thank you for giving that recognition to that board. Any further discussion? If not, all those in favor, signify by saying aye. The motion to approve C 2011 -268 was then put, and unanimously carried. C 2011 -269 Communication (09/02/2011) from the Executive on Transportation, requesting Council approval, to receive, indemnify and expend additional Federal Transit Administration (FTA) Section 5311 grant funds awarded for operational, administrative and training expenses for the County Transportation Agency in the amount of $268,840.00: Ms. Yukimura moved to approve C 2011 -269, seconded by Mr. Kuali`i. Council Chair Furfaro: Thank you. Anyone in the audience that wishes to testify on this item? Seeing no one, members, discussion? Vice Chair Yukimura. Ms. Yukimura: I just want to say these are really important federal moneys to support our Kauai Bus and so we're really glad to receive them and appreciate the application that went through. Council Chair Furfaro: Yes and I also want to thank Celia in our transportation and bus system for her work on getting this grant. Ms. Yukimura: And actually, Chair, I think my comments and probably yours also apply to the next item, when I won't make any comments. Thank you. aye. Council Chair Furfaro: All those in favor of 269, please signify by saying The motion to approve C 2011 -269 was then put, and unanimously carried. COUNCIL MEETING -13- September 21, 2011 C 2011 -270 Communication (09/02/2011) from the Executive on Transportation, requesting Council approval, to apply for, receive, indemnify and expend Federal Transit Administration (FTA) Section 5311 and 5311(b)(2) Rural Transit Assistance Program (RTAP) grants for operational, administrative and training expenses for the County Transportation Agency in the amount of $589,394.00 and $10,795.00, respectively: Mr. Chang moved to approve C 2011 -270, seconded by Ms. Yukimura. Council Chair Furfaro: Thank you very much. Is there any discussion from the audience? If not, members here at the table, I'll entertain further discussion on this item. Again, our compliments to Celia and the transportation department. All those in favor, please signify by saying aye. The motion to approve C 2011 -270 was then put, and unanimously carried. Council Chair Furfaro: Thank you very much. Next item 271, we already took as an agenda item. So we will... Mr. Nakamura: Council Chair, on communication C 2011 -272, if we could ask that the council to move this to the end of the agenda until after the executive session briefing? C 2011 -272 Request (09/15/2011) from the Office of the County Attorney for authorization to expend funds up to $75,000.00 to retain special counsel to represent the County of Kaua'i in County of Kaua'i, et al. vs. Michael G. Sheehan et al., Civil No. 11 -1 -0206 (Fifth Circuit Court) and related matters. Council Chair Furfaro: Okay, the clerk is suggesting that we move item 272 to the end of the agenda, having an executive session first. Mr. Rapozo: Can we have some discussion before? Council Chair Furfaro: Go right ahead, Mr. Rapozo. Mr. Rapozo: Mr. Chair, I don't have and I did submit a request and maybe it's here —I didn't see it —the copy of the actual complaint that was filed. I'm kind of looking for the date that it was filed and I guess my concern is that the complaint was filed in circuit court without any consultation, I believe, with this county council. The complaint was filed and then the request for funds is being made. So I guess I'm interested in seeing a copy of the complaint, more importantly when in fact that complaint was filed with the court. You know I would have much rather been briefed prior to the lawsuit being filed because now it seems we have committed to proceeding in litigation and that this county council really doesn't have ... I mean we don't have an opportunity right now, we really pretty much have to approve the funding. So we'll see and I'm assuming we'll have copies of that before executive session. You have it there? Okay. There being no objections, the rules were suspended. ALFRED B. CASTILLO, JR., County Attorney: Council Chair? Council Chair Furfaro: Yes, for the county attorney. COUNCIL MEETING -14- September 21, 2011 Mr. Castillo: Yes, County Attorney Al Castillo. Just for clarification and before we go into executive session where I can discuss this more thoroughly. A resolution was requested of this council and the council passed a resolution a few months ago, so that's in direct response and pursuant to the resolution to this council. Mr. Rapozo: So I guess with that, Mr. Chair, is this the complaint for condemnation? Is this the condemnation proceeding? Is that what this is? Okay, then I stand corrected. Council Chair Furfaro: Let the record show that the county attorney acknowledged that a resolution had been presented to this council and subsequent councils during the break that Mr. Rapozo had, but also let the record show that he acknowledged Mr. Rapozo's question. Okay? Mr. Rapozo: Can I see, Peter, real quick? Council Chair Furfaro: Okay, while Mel is getting consultation from our legal analyst, I'm going to suspend the rules. Mr. Sheehan, you're welcome to come up. MICHAEL SHEEHAN: Thank you, Council Chair, Members of the Council. I think if you read that complaint, you'll see that... Mr. Chang: Mike, you want to introduce yourself? Council Chair Furfaro: You have to introduce yourself. Mr. Sheehan: Oh, sorry, Michael Sheehan. I'm the unfortunate owner of a boatyard on the Hanalei River and I'm never going to do that again, at the request of Mayor Kunimura, bless his soul. I saw his wife today and it was good to see her; I thought of him. Anyway as I read that complaint delivered to me, what it is it's a declaratory judgment basically affirming the revocation of all of my operating permits for the boatyard. It doesn't have anything to do with... it's kind of a backdoor way of condemning my property because if you take my permits, basically what you've finally completed is my federal takings claim. That was the one thing that was missing when I had to sue the county in 1993. Judge Ezra said, Mr. Sheehan, until the county finally takes your permits you don't have a completed takings claim. The operation of the planning commission and this lawsuit is the final taking and so my words to you are you're not going to expend only $75,000.00 on this exercise. You probably better put aside $750,000.00 and you better put a contingency aside for a potential damage award. So when you go into executive session... thank you very much. I might make some comments later on when you're done if it's appropriate. But being forewarned is being forearmed, I think, and I'm very concerned about the expense of taxpayers' money on this continuing ... I don't know what it is. I mean we should be able to negotiate this thing. I mean if it was up to you and me today, us seven/eight people, I think we could solve this thing. I don't know why we have to go back to court again and spend half a million dollars in taxpayers' money with a potential of forcing me to have to go seek damages against the taxpayers. I don't want to do that. So, thank you, sir. Council Chair Furfaro: Mr. Sheehan, I am not going to allow other questions for you until we have some discussion with the county attorney. I do want to say at this time your words of caution are well received and we need to have our advice from our county attorney when we do meet in such session. COUNCIL MEETING -15- September 21, 2011 Mr. Sheehan: Certainly and I thank you for the opportunity, sir. Council Chair Furfaro: I am encouraged, as a Hanalei boy, to know that you're ... I'm hearing your willingness to have some discussion with the county attorney. But at this point, I would like to leave it at that. Mr. Sheehan: No, I understand that, but I just wanted to share with you I think that comment was misleading and you need to look at it sort of with a jaundiced eye. That's all. Thank you very much. Council Chair Furfaro: Well we'll look at it with the legal counsel that we have in executive session and again, thank you for the flags of caution that you shared with us. Mr. Sheehan: Well, thank you for the opportunity to share that as a taxpayer basically, so thank you. Council Chair Furfaro: Okay, thank you very much. Let me address this to the county attorney. You can use the mike that's on your table, Al. Is there anything more that we need to indicate your desire for us to pursue this in executive session? Mr. Castillo: I don't want to add anything more on the open floor. I would... Council Chair Furfaro: Thank you, I just wanted to give you that courtesy. Mr. Castillo: Thank you very much, Chair. The meeting was called back to order, and proceeded as follows: Mr. Rapozo: Mr. Chair? Council Chair Furfaro: Yes. Mr. Rapozo: The complaint that was handed to me, the condemnation complaint, is not the complaint that is in the request. The condemnation complaint, Civil Case No. 11 -1 -0098, that's the condemnation report that the resolution is attached to. The complaint that the funds are being requested for is Civil No. 11 -1 -0206. That is what I want to see. I know about the condemnation. I know that this wasn't a condemnation complaint. I want to see the complaint that's on the agenda, not the condemnation complaint, and I think it's a reasonable request that's not... Council Chair Furfaro: And I will address that complaint when we get into executive session, sir. Mr. Rapozo: Okay, but I believe that some of the discussion is not in executive session. I think the fact ... I want to know when it was filed. Council Chair Furfaro: And I will allow you to challenge the county attorney when we are in executive session and you may ask him why are some of these items not in the public arena and I will allow you to ask that question. COUNCIL MEETING -16- September 21, 2011 Mr. Rapozo: But Mr. Chair, the question when Civil No. 11 -1 -0206 was filed is not an executive session matter. That is _a public matter. I can go to my computer now and pull it up. I just don't have the time right now. I'm asking the county attorney. I'm assuming he has it. It's his communication. When was it filed? Because this is going to determine whether or not I... Council Chair Furfaro: Oh, I haven't changed my mind. I haven't said that we wouldn't make this back as a public agenda item. I mean we can go back on many items here, but let's make sure when the information is shared that we understand what needs to be public will be public. Mr. Rapozo: Mr. Chair, with all due respect, my vote to go into executive session is going to be based on my questions to the attorney before we go into executive session. If we end the discussion, I will not support going into executive session. Council Chair Furfaro: I understand and it will take us five votes to go into executive session, so we will take a five- minute recess and you can meet with the county attorney. There being no objection, the meeting was recessed at 11:57 a.m. The meeting was called back to order at 12:03 p.m. Council Chair Furfaro: Okay, we're back in session and after having some more in -depth review of the particulars here with the county attorney as well as with Councilmember Rapozo. I want to share with the county attorney, item 11 -1 -0098 is the condemnation piece that will request from the council a money bill. Item 11 -1 -0206 is the injunction on the boatyard and Mr. Rapozo is seriously correct in raising that question. It takes time to compare the numbers with the actual complaint, thus the recess. But I want to also say to our staff, as well as to the county attorney's staff, there is a little more diligence that we need to do here to make this thing happen when sending over the injunctive narrative with the condemnation numbers. And therefore before I call the county attorney up, I'm going to ask that we can receive these items for today and I want to make sure that the appropriate due diligence is done when these items come over for executive session the next time around. I want to also say that I appreciate Mr. Rapozo catching this in the 12th hour here at the table, but I also want to make sure my staff realizes that there is expectation of them to work with the county attorney's office to make sure the numbers are correct, whether it's the condemnation or the injunction, before we move into executive session. So to the county attorney, I'm going to ask —you can speak from there (inaudible). I'm going to ask you to receive these items and have them reposted in two weeks. Mr. Castillo: Council Chair Furfaro: Chair, can I... Yes, you can come up. There being no objection, the rules were suspended. Mr. Castillo: Good afternoon, Council Chair, Councilmembers, for the record Al Castillo, County Attorney, and my sincere apologies because prior to today we had numerous requests regarding these subject matters; however, we are not coming in for request on the injunctive relief component and it is a mistake COUNCIL MEETING -17- September 21, 2011 of myself. I accept personal responsibility that I made this mistake. However, we do want to return in two weeks with the correct Civil Number, which would be the condemnation. Council Chair Furfaro: Okay, to the county attorney, I do want to say that whether we had this discussion in executive session and immediately came out of the session to say, move to receive or we do it now is at Mr. Rapozo's request, which obviously there is excitement at this table for the purpose of all of the work, the effort that has gone in including past dialogue when Mr. Rapozo wasn't on the council from Mr. Sheehan exchanging thoughts with this council, and I hear a new exchange of thoughts from him today. But I do expect that everyone will not depend on councilmembers to identify the posting numbers as being incorrect. And on that note I'll turn the floor over to Mr. Rapozo with my apologizing for raising temperament on the procedure that I wanted to do in executive session and come out if we were wrong to say it was wrong versus him requesting somewhat forcefully to have that done now. So Mr. Rapozo, the floor is yours. Mr. Rapozo: Thank you and Al, you are correct. I did request a briefing on 11 -1 -0206. That posting is correct. Mr. Castillo: Yes. Mr. Rapozo: So I'm not asking that we receive that item. Are you prepared to go into executive session for that today? Mr. Castillo: No, I am not prepared to go into that and ... I can go offline and discuss with you the reasons why, but... Mr. Rapozo: No, no, no, that's fine. I just wanted the record to reflect that I did request an update on that item. Mr. Castillo: Yes. Mr. Rapozo: On the new complaint, not the condemnation complaint. Mr. Castillo: And why I put that number in there, heaven knows. Mr. Rapozo: Okay, that's fine. Then I will definitely await your new communication for an update briefing on 206 in executive session as well as your request for funding for 0098. Mr. Castillo: Yes. Mr. Rapozo: Thank you. Mr. Castillo: You're welcome. Council Chair Furfaro: I want to thank Mr. Rapozo for yielding that, but Al, I have to tell you it should not be the councilmembers matching numbers with injunctions versus condemnations and so forth. We depend on your office. We have a question from Mr. Bynum. COUNCIL MEETING -18- September 21, 2011 Mr. Bynum: Just real briefly. The only thing on this posting that's an error are those numbers.- The title is correct. Everything else is correct, right? Mr. Castillo: Yeah. Mr. Bynum: Okay, so it's just the numbers., Apology accepted. Mr. Castillo: Thank you. Council Chair Furfaro: Okay, Mr. Castillo, I don't want to make it any softer from Mr. Bynum there. I expect your office to get the right numbers. Mr. Castillo: What can I say? Council Chair Furfaro: I want to make sure we understand this. Mr. Castillo: Council Chair Furfaro: Yukimura. I take personal responsibility. Thank you very much. Council Vice Chair Ms. Yukimura: Yes, thank you. I appreciate you taking personal responsibility and perhaps some good can come out of all of this because we've heard Mr. Sheehan say that he's actually willing to talk to the county attorneys and I hope he means that because perhaps in two weeks the report can be not for more money for court proceedings but can be for some agreed upon price for acquisition of the lands. That would be really nice. And I think that's at least... personally, I think that would be the best policy decision and approach for the county to take with respect to the future of Black Pot Beach Park and the recreational opportunities for our people. So maybe something good can happen in the next two weeks. We can all try. Mr. Castillo: Yes. Ms. Yukimura: And I have to say for the record, I'm the one who wanted the update on the hopefully friendly condemnation proceedings and it looks like we'll have to wait for two weeks, but maybe good things can happen before then. Thank you. Mr. Castillo: Thank you. Council Chair Furfaro: Mr. Castillo, thank you. You heard my point of view. We'll see you in two weeks. Mr. Castillo: Thank you. The meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Okay, members, we had a motion to approve and a second. .I guess we need to have that withdrawn and look for a motion to receive. Mr. Rapozo: Move to receive. Mr. Kuali`i: Second. COUNCIL MEETING -19- September 21, 2011 Mr. Nakamura: Council Chair, there was no motion. Council Chair Furfaro: There was no motion? Mr. Nakamura: So Councilmember Rapozo's motion is in order. Mr. Rapozo moved to receive C 2011 -272 for the record, seconded by Mr. Kuali`i, and unanimously carried. Council Chair Furfaro: We'll see this item in two weeks, both items in two weeks. Mr. Clerk, we'll go to the next item. C 2011 -273 Communication (09/15/2011) from Councilmember Chang, requesting that the Council reconsider its rejection of the Salary Commission's Resolution No. 2011 -1. Council Chair Furfaro: Thank you. Is there a motion to approve the reconsideration and a second. Mr. Chang: I make a motion to reconsider. Mr. Bynum: Second. Mr. Chang moved to to reconsider the council's rejection of Salary Commission Resolution No. 2011 -1, seconded by Mr. Bynum. Council Chair Furfaro: Okay, we have a motion to reconsider this particular item. I do want to make clear to the audience that this will probably go up to a point of the lunch break and then probably continue after that. What is on the table right now is testimony that needs to be based on the motion to reconsider. If the vote for reconsideration happens, we will then be able to take testimony dealing with the process. So on that note, is there anyone in the audience that would like to speak regarding the motion of reconsideration for the Salary Commission? Come right up, Mr. Stoessel. There being no objection, the rules were suspended. Council Chair Furfaro: While Mr. Stoessel is taking the chair, I want to remind members that although Mr. Stoessel was a member of the Salary Commission, this testimony is about the reconsideration and I have made it clear to the administration I expect to hear the appropriate questions answered that you have from the deputy mayor, from the county attorney's office. So let's take Mr. Stoessel's testimony first. HORACE STOESSEL: Thank you, Mr. Chair. Good afternoon, Councilmembers. Two weeks ago I heard a claim that a decision to approve Resolution 2011 -1 would implicate the council in violating the charter. I did not hear anyone claim that a decision to reject this resolution would be an unlawful action. If anyone is planning to make that claim today, I remind them that the charter gives the council unqualified authority to reject the salary resolution in whole or in part within 60 days. The charter does not require the council to give reasons for rejecting the resolution, nor does it require those who vote to reject to agree on the reasons for rejecting. Personally, I would expect councilmembers to give reasons for voting to reject and I believe every councilmember would agree with that. But the point is that the authority to reject is unqualified, which means that by definition the decision to reject Resolution 2011 -1 was a lawful decision. The COUNCIL MEETING -20- September 21, 2011 decision to reject in no way prevents the salary process from going forward. In fact, I believe that it facilitates the process - going forward. The decision to reject also does not prevent any person who feels an injustice has occurred from taking the matter to court. As to process, every councilmember had an opportunity to express their views about what action the council should take and the floor was open to the public and anyone in government to express their views. In the end, the council voted 6 -1 to reject the resolution. In light of these facts, what grounds are there for approving the request to reconsider? I urge the council not to approve the request to reconsider and to get on with doing its part to correct the other flaws in the salary process and I thank you for your time. Ms. Yukimura: I have a question. Council Chair Furfaro: Thank you, Mr. Stoessel, and I do want to make a couple points here. Mr. Stoessel, your testimony is very much appreciated. But as the chairman of the council, if I know that there is an attempt by one member to want to reconsider something that they've voted with the majority on, I will always practice allowing them to have at least a voice at the table for that reconsideration. I think that is good leadership practice. Mr. Stoessel: Your point is not an issue as far as I'm concerned. Council Chair Furfaro: No, it is an issue, sir, when you spoke that you felt it shouldn't be reconsidered. I'm talking about k6kua and courtesy. If a member came to me and asked to have something on the agenda, I will do so. I'm just answering that part of your comment. Mr. Stoessel: And I'm not objecting to its being on the agenda. Council Chair Furfaro: Thank you, sir. Now, along the same lines, I want all the members to know and I have prepared for you my own summary of what has happened over the last four years with 12 requests that have come to this council from the salary commission, and I'll be passing that out before we break for lunch. I'll make sure I give you a copy so that you can see how I believe it was reconciled. And you are correct, that salary recommendation was rejected 6 -1 by this council. So I need to have a second from somebody who voted with the majority. The second piece I do want to say, and I hope you concur with me, if the fact of the matter was that the administration did not follow the recommendations made by the salary commission, they at least had the requirement of at least budgeting for those items because the recommendations were accepted by the council. Could you agree with that? Mr. Stoessel: I'm not sure I want to get into that particular discussion. Council Chair Furfaro: Very good. I just wanted to pose that. Now, again, this discussion is about the rejection of the last salary recommendation that came to US. Council Vice Chair Yukimura, I'd like to keep this only directed at Mr. Stoessel's questions so that we can and we'll learn from this for the future that the administration or the county attorney or the boards and commissions administrator should be present to answer questions. I also want to let you know, Mr. Stoessel, just for clarification here that the director of boards and commissions is serving as a communications liaison between the boards, commissions and the various county departments, offices and agencies that such boards and commissions may interact with his office to help ensure that various boards and commissions' COUNCIL MEETING -21- September 21, 2011 information is communicated and addressed in a timely fashion. That is in the scope of Mr. Isobe's job description. I concur with you on your concerns about the other narrative that came across from other than boards and commissions. Vice Chair Yukimura? Ms. Yukimura: Thank you, Chair. Mr. Stoessel, thank you for your testimony. I just had a question about what you said. You said that rejecting the resolution does not stop the process from going forward. Mr. Stoessel: Yes. Ms. Yukimura: And I wanted to understand what you mean by "the process going forward." Mr. Stoessel: Well, the first thing I mean is that the salary commission can foresee as it deems necessary and everybody else proceeding depends on what they may or may not do. Albeit, the only point I'm making is that there is nothing in this rejection that hinders the salary commission from going forward with its business and/or bringing it to the council and the administration. Ms. Yukimura: Okay, well, it's still too general for me. Going forward with its business, does that mean that as far as the salaries that were set or recommended in the resolution that we're looking at... Mr. Rapozo: Mr. Chair, Point of Order real quick, Point of Order because I want to make sure and you raised it at the beginning of your... Council Chair Furfaro: And I was almost about to raise it again. Mr. Rapozo: This discussion should only be on the motion to reconsider. Ms. Yukimura: Exactly, but we need to understand the ramifications of it if we vote to reconsider or if we don't. Mr. Rapozo: No, this is to get the motion to reconsider, to bring the item back on. Ms. Yukimura: That's correct. Mr. Rapozo: Right now, Mr. Chang has an opportunity to explain to us why the... what the reasons for the motion to reconsider. Ms. Yukimura: Right. Mr. Rapozo: Robert's Rules and I have it right here is quite specific. We do not debate the issue of the original motion until the motion to reconsider passes and I make that a Point of Order, Mr. Chair. I'll leave it up to your discretion, but that is my point. Council Chair Furfaro: As soon as I relieve myself of this cramp, I will take the floor, okay and I think that's a very good point that I pointed out earlier, it's a long drive at 5:30 in the morning from Hanalei, so we will stick to that and I also want to remind the members that it is imperative that we have legal questions about procedures directed at our legal staff, who are here today for that purpose. COUNCIL MEETING -22- September 21, 2011 Ms. Yukimura: Yes, so Mr. Chair, Mr. Stoessel has made appropriate testimony on this motion of reconsideration. I'm asking him to explain his testimony because I think it's important for us to understand the consequences of voting against reconsideration. If we vote against reconsideration, it will mean the rejection will stand and Mr. Stoessel has said with the rejection standing, then the process can still go forward and I need to understand that. I think it's very relevant to the question of reconsideration. Council Chair Furfaro: Understood. We have his testimony, but I think that is a question more reserved on the consequences and procedures to the county attorney's office. That is my position. Ms. Yukimura: Well, Mr. Chair, just for me to just ... I need to know what Mr. Stoessel means by going forward with its business and that is not a legal matter. It is his opinion about what it means to go forward. And my question is does that mean that they can go forward with respect to salaries not for this year but for the subsequent years. Mr. Stoessel: That's one of the things that... Council Chair Furfaro: Before you answer, Mr. Stoessel, I want to say that I'm going to allow that question to be limited in the response. But Mr. Stoessel, I want you to know that we have a procedure. If the chairman's request is not followed, then the majority of the council can vote over my request. I would like legal questions to be focused on the county attorney. But now, sir, you can answer Councilwoman Yukimura's question. Mr. Stoessel: Thank you. As far as the council is concerned, rejection of the resolution means that the prior resolution is now in effect and the council has to proceed with what it's going to do in relation to the prior resolution. And that's part of what I was referring to when I said I'd like to see the council get on with things rather than getting bogged down in connection with a decision that was made two weeks ago on very solid grounds, in my opinion. Ms. Yukimura: Thank you very much. Council Chair Furfaro: Thank you for that answer. Mr. Bynum? Mr. Bynum: Thanks for being here, Mr. Stoessel, and I think... would you agree with me that this whole situation has gotten rather convoluted? Mr. Stoessel: Yes. Mr. Bynum: Good, I thought you would, and so do you understand that if the council votes to reconsider, then we can have discussion and we still may choose to reject it. Mr. Stoessel: Yes, I understand that. Mr. Bynum: If we move to reconsider, it doesn't mean that we're going to accept the resolution. It just allows us to re- engage in a dialogue and the outcome could still be rejection, correct? Mr. Stoessel: Oh yes. COUNCIL MEETING -23- September 21, 2011 Mr. Bynum: Okay. Mr. Stoessel: May I follow that up? Normally when someone asks for reconsideration, they want the original vote to be changed. And that doesn't mean that if there is a reconsideration the original vote will be changed. But in this case, the only option the council has other than to sustain the rejection is to approve the resolution, which would involve a violation of the charter. Mr. Bynum: So Mr. Stoessel, I understand that contention. Last week I did a ... when this was here last, I did a review of my memory of the history of this. Mr. Stoessel: Yes. Mr. Bynum: And I said my reason for rejecting was not that the motion was illegal. I didn't know the answer to that because the attorneys weren't here, right. And so I intend to support the motion to reconsider so we can continue this dialogue and my sincere hope is that we end this ongoing convoluted situation and come to some conclusion. But I have not made a determination about whether I would vote to accept or reject the resolution. And so you're correct that often when members ask for a reconsideration it's because they want to change their vote. I think, just speaking for myself and I think perhaps for Mr. Chang as well, we're asking for the reconsideration in order to continue the dialogue and to continue the due diligence and make sure that we make the proper decision. So I'll speak just for myself. Mr. Stoessel; I understand. Mr. Bynum: I want to have a dialogue in public with yourself and the county attorney to see if we can finally or at least move more towards resolving this, what has become a rather convoluted situation over a period of several years. So I just wanted to explain that and so you understand that if I vote to reconsider, it doesn't mean I've made up my mind about the resolution. Mr. Stoessel: I made no such assumptions. Mr. Bynum: Okay, I just wanted... Council Chair Furfaro: Thank you for making no decisions, Mr. Stoessel, but I do want to break for lunch, but before I do, I will share and although Mr. Bynum has thought and reflected on the past process, I've actually put it to paper so that everybody can have it at lunchtime to review while we break here and I'll give you a copy as well as others. But here is a salary commission chronology of what has happened and the last thing I want to do, members, before we break for lunch is to allow Mr. Chang time to explain his rationale for considering a reconsideration and sometimes it's done not by what was just explained as they want to change their vote. It's in Kauai and on Kauai sometimes it's just wanting to hear more dialogue because we try to live aloha and I'll give Mr. Chang that time. But I'll have a copy of this for you, Mr. Stoessel. Members, if you can take a copy and pass it down. You have some lunchtime reading. Here we go. Mr. Chang: May I go? Council Chair Furfaro: Mr. Chang, the floor recognizes you and your motion to reconsider. COUNCIL MEETING -24- September 21, 2011 Mr. Chang: Thank you, Chairman. Mr. Stoessel; are we saying... its stow -sell not stau -sel, right? Mr. Stoessel: Yes, thank you. And first of all, Mr. Chang: Anyway, thank you for all your testimonies. I've read through all your testimonies and I've never had any motion to reconsider anything on the agenda since I've been here, and it was in all due respect not to change my vote, but if you remember and I'm just reading off of some notes here, if you remember two weeks ago, we had our first deputy, Amy Esaki, here. Our county attorney was not present and handling this agenda item was deputy Mona Clark. And the last thing that we did and we recapped and I wrote a couple of notes was that there needed to be three questions answered. First deputy Amy Esaki wrote them down, confirmed that she had the questions, and these were the questions that I wanted to get answered, which didn't get answered. I don't want to say verbatim. This is just my notes and if somebody can correct me if I'm wrong, but (1) can salary caps that are established be reduced after the July 1, 2011 date; (2) can resolutions that have been vetted through the charter process 2010 resolution be amended subsequently, and the last question was (3) does the mayor or other elected officials have the authority to reject their raises. Mr. Stoessel: I remember those questions, yes. Mr. Chang: Okay, thank you very much and those were the questions that I had expected and I had hoped to get answered and consequently that was my reasoning to reconsider and to bring this back on. Another question that I have when we resume back from... Council Chair Furfaro: Mr. Chang, may I say since those questions are questions, I'm going to give you the floor for the county attorney, not for Mr. Stoessel. Mr. Chang: No, no, I was just explaining to him. Council Chair Furfaro: I understand, but for Mr. Stoessel, he would possibly be in the audience. Those questions are the ones that are being directed to the county attorney. Mr. Chang: Which is why I had asked to bring this back into discussion. Council Chair Furfaro: That's correct. Mr. Stoessel: Council Chair Furfaro: Mr. Chair? Yes, Mr. Stoessel? Mr. Stoessel: May I make one more comment going back partly to what Mr. Bynum had to say? Council Chair Furfaro: Yes, surely. Mr. Stoessel: But also in connection with what Mr. Chang just said, I see a real possibility here of trivializing the legislative process and I would ask the council to consider... are you prepared to set a precedent where after having COUNCIL MEETING -25- September 21, 2011 had testimony, discussion and a vote to come back then and say, hey, let's reconsider this? Let's talk about it some more? I'll just leave that as a question. Council Chair Furfaro: And I'll encourage you to read what was my view of a very convoluted process which has been, in four years, reviewed 14 different times, which is in my narrative. And this council has no desire to dissolve any of its role in the salary commission process and making recommendations and so forth. And on that note, I hope I answered your question and please, my staff has a copy of my comments for you. Mr. Rapozo: Mr. Chair, I just had one. Council Chair Furfaro: Hold on. Mr. Rapozo: No, not for Mr. Stoessel. Council Chair Furfaro: Did you need Mr. Stoessel? Mr. Rapozo: No, I don't. Council Chair Furfaro: You can leave and I'm going to let Mr. Rapozo have a moment before we break for lunch. Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you. No, it was really a follow on to—it wasn't a question that's why I didn't need Mr. Stoessel there, but it was a comment. Because there was one more question that was asked that we did not get an answer for and my question was simply, is the county attorney's office the appropriate office for a legal opinion on a resolution that includes the county attorney as well as all of the deputies? That was my question and that was not answered. I believe that there is a conflict because they are named in the resolution and that was my question that was not answered. Is, in fact, that agency the appropriate agency to offer a legal opinion on a resolution that could affect their office and that's all I wanted to close with. Council Chair Furfaro: And I'll remind members, we have at my request and kind of reminding the administration, we have very direct questions that we needed answered from last time and I think they are here to do that this time, and I would like to make sure that they recognize the role of oversight from the council and when we ask them to come, it's not an RSVP and in French that's repondez, s'il vous plait, okay? Please be here. We're going to break for lunch. There being no objection, the meeting was recessed at 12:35 p.m. The meeting was called back to order at 1:50 p.m., and proceeded as follows: Council Chair Furfaro: Aloha everyone, we are back from our luncheon break. We all went over to participate in the recognition with the prosecutor's office for the month of trying to resolve domestic violence and recognition in the month of October. So my apologies for us being late. When we broke, I believe it was my intention, now that I see that Mr. Isobe is in the audience, the county attorney is here, Mr. Isobe is here, that we have an opportunity to field some questions from them and also let Mr. Chang have an opportunity to redirect his five questions to the county attorney's office. So it is my desire, first, to resolve the legal questions. And are we having that the county attorney speaks to us or are we having someone from his office speak to us? You'll come up? COUNCIL MEETING -26- September 21, 2011 Mr. Rapozo: Mr. Chair? Council Chair Furfaro: Yes. Mr. Rapozo: I'll raise that Point of Order again as to the Robert's Rules that in fact the only thing we're able to discuss on this matter is actually the reasons for the request for reconsideration and I just want to make that note made for the record, thank you. Council Chair Furfaro: Yes. Mr. Kuali`i: Mr. Chair? Council Chair Furfaro: Yes. Mr. Kuali`i: I also wanted to add that if Councilmember Chang was done making his... Council Chair Furfaro: He's not. Mr. Kuali`i: ... argument of why we need to reconsider, then we should have a chance to discuss why or why not. Council Chair Furfaro: Yes. And so I'm calling up the county attorney, so that the questions that were directed at Mr. Stoessel can really be directed at the county attorney. So to the county attorney's office, we had five questions that were delivered for a period of about two weeks ago to first deputy Amy Esaki, and those are the questions because Mr. Chang made the motion for reconsideration that I want to deal with first. But before you go there, let me ask Council Vice Chair Yukimura, who's raising her hand, if she had a question? Ms. Yukimura: Yes, Mr. Chair, I think Councilmember Rapozo raised a threshold question about whether we can go to those questions. I actually believe, like I said in questioning Mr. Stoessel, that understanding the answers to the legal questions will help us understand the ramifications of whether we should reconsider or not. Mr. Castillo: Yes. Ms. Yukimura: As the one vote who voted against rejecting the salary resolution last time, I said I might end up voting to reject it, but because I didn't have the answers to the questions, which would have given me some sense of whether the resolution was a violation of the charter or not, I needed to have this information, and I think a good reason for reconsideration is that there is new information that we didn't have at the time of the original vote. But I think we have to answer that threshold question first before we go to the legal question. Council Chair Furfaro: First of all, I'm struggling here. What Mr. Rapozo has repeated now twice I started at the beginning of the meeting. What Councilwoman Yukimura has asked you is what I called you up for. So are we all square on that or do I need to speak in a different mode? Mr. Kuali`i: Mr. Chair? Council Chair Furfaro: Yes. COUNCIL MEETING -27- September 21, 2011 Mr. Kuali`i: I'm not square, as you put it, at this point. On a vote to reconsider, we should only be talking about why do we need to reconsider or why do we not need to reconsider. If we start answering the questions, then we are talking about the original motion, and we had all of these questions when we last discussed and we voted knowing those questions were out there, and the reason we did that was because we said this is not the end of it, that the salary commission can come back to us with a new resolution, the attorneys can come back to us with the administration with their concerns. It should all come to us well in advance so that all the legal questions are out there. If we begin to address some of the legal questions today and not the others, then we're going to be making decisions not based on all the information. And the last time we voted to reject, we said this is not the end of all. We can get more information, and maybe there is some more information today, but I haven't seen the letter that asked the legal questions. We haven't all agreed that all our questions were included. We don't know that the attorney is prepared to answer all the questions today. And I just think if we start talking about answering the questions, then we're back on the original motion, and we're not just saying why we should reconsider and why we should not. Council Chair Furfaro: Okay, let me take it from here folks because quite frankly, I am believing that I am very much speaking from the very beginning on this reconsideration position. I don't need it to be echoed by Vice Chair Yukimura; I don't need it echoed by Councilman Rapozo. There were five questions that were left about the reconsideration, and so what I'm going to do, I'm going to exercise with some direction from the county clerk your opportunity to override me, okay? Mr. Clerk, I guess I could call for a vote, if there are four people here that do not wish to hear from the county attorney on the reconsideration, let me hear the vote now. Mr. Rapozo: I have a question. Council Chair Furfaro: Go ahead. Mr. Rapozo: I guess I'm not clear on your question. You're going to ask the county attorney to come up to address the five questions that we have here? Okay. And then I would say that that belongs in a discussion should the motion to reconsider pass and not the discussion for it, so I would not support that. Council Chair Furfaro: Very good. I am just exercising our rules for all of you. I would hope that you could appreciate the fact that as the Chair, with four votes you can override me. Would you ask the question, Mr. Clerk? Mr. Nakamura: Council Chair, I believe we're in the council rules, when there's a ruling ... I'm just looking (inaudible) right now. Ms. Yukimura: Question, please, Mr. Chair. Council Chair Furfaro: I want to hear what the rules say, first and then I'll give you the floor. Ms. Yukimura: Okay. Mr. Nakamura: Council Chair, this is Council Rule No. 6 0)(1) When the Chair or any member thinks that the rules are being violated, the Chair or member can make a Point of Order (or "raise a question of order "), thereby calling upon the Chair for a ruling and an enforcement of the regular rules. Such COUNCIL MEETING -28- September 21, 2011 question shall be decided by the Chair, without debate, subject to an appeal to the Council. In addition, the chair may call for the sense of the body on any question of order. Council Chair Furfaro: Okay, so we have an appeal of the position that I've taken to have the county attorney's office answer the five questions that we sent over that have not been addressed and I will honor the majority of the body indicating that this approach that I have taken can be appealed. Mr. Rapozo: Mr. Chair, as the person that brought the Point of Order, I believe I need to make the point and then you can make your ruling. And my point is simply under Robert's Rules and let me read this and maybe the county attorney can chime in, but it says, "The motion to reconsider is debatable to the extent that the motion being reconsidered is debatable. Under the standard code, the motion is debatable only as to the reasons for reconsideration and the original motion is opened for debate only if the motion for reconsideration passes." That's Robert's Rules, that's what we operate under. So that would be my Point of Order and Mr. Chair, again, I would leave it up to your discretion. Council Chair Furfaro: No, and I guess I was wanting those five questions answered because I believe that's the condition that Mr. Chang had based his motion to reconsider. But, Mr. Bynum, you have a question? Mr. Bynum: I have a comment, if that's okay? Council Chair Furfaro: I'm looking for questions before I have... Mr. Bynum: Questions to the county attorney? Council Chair Furfaro: No, questions to the table. Mr. Bynum: I'm sorry, I already gave my... that I want to have a dialogue about those questions. That's why I'm going to support a motion to reconsider. But what's before us is really about a process and I tend to agree with Councilmember Rapozo about the process. That's why I'm encouraging members to vote for the reconsideration fully understanding that once we have the dialogue, we still may vote to reject it. So I would hope we would support reconsideration, but I think in at least my reading of it that Mr. Rapozo is correct that the process should be ... that we shouldn't go into that dialogue, because as Councilmember Kuali`i says, then we're going back to the motion that we discussed two weeks ago. I want to get there, but I think we have to do it in the right way is my best reading at the moment. Now if the county attorney can instruct me I'm wrong, I'm open to that too. Council Chair Furfaro: The county attorney is not open for questions. So your position you would vote no on having the county attorney at my request to respond to questions. Mr. Bynum: Council Chair Furfaro: Yukimura? At this time, unfortunately. Okay, very good, very good. Council Vice Chair Ms. Yukimura: Yes, Chair, because we seem to be on the issue of appeal of the Chair's decision, I just want... COUNCIL MEETING -29- September 21, 2011 Council Chair Furfaro: from Mr. Bynum. That that is the only issue now, not the comments Ms. Yukimura: I'm going to vote to support the Chair because I believe that taking the threshold question that Councilmember Rapozo has raised, we are allowed to hear the answers. It's relevant to the question of whether to reconsider or not. Councilmember Kuali`i said that many, I think, of you voted to reject this resolution on the assumption that you could actually have the salary commission introduce a new resolution and you could get to the goal of this resolution that was rejected in another way. I'm not sure that's the case and I think we need to know what the consequences of our vote are, both on the vote to reconsider, as well as on the merits of the vote if we do reconsider. We need to know the consequences of those votes and therefore, the Chair is right in allowing more information to come in on the question of reconsideration. And I think if the county attorney were asked about the threshold question, he would say the same supporting the Chair's point because ... yes. Mr. Castillo: Council Chair, if I may. I think... Council Chair Furfaro: Let me suspend the rules. Yes. There being no objection, the rules were suspended. Mr. Castillo: Thank you Council Chair, I think that this body does need guidance on the threshold for the motion for reconsideration and No. 1, yes, you do need more information regarding the effect of rejecting 2011 and you absolutely need to know about the March 15 date that is in the charter because that in itself may set a precedent that this body will be very interested in. So based on those two reasons alone would be... and it's up to this legislative body. If you want to hear it, then it's up to you. And if you don't, but ... your due diligence, I would say that you should at least ask those questions. Council Chair Furfaro: Well, that's why I'm asking the body if they would like to appeal the direction I'm going in. Councilmember Rapozo? Mr. Rapozo: Thank you, I have a question. So Al, you're saying that under Robert's Rules, it is okay to discuss the substance of the motion? Mr. Castillo: No, I'm not saying that. What I'm saying... Mr. Rapozo: What are you saying? Mr. Castillo: What I'm saying is all of you as independent legislators, as you discuss this motion for reconsideration, you can blurt out what the reasons are, and there may be more than one reason. It can be I just want to hear it and this body will vote on the motion for reconsideration. Mr. Rapozo: Right. Mr. Castillo: In addition to whatever you feel may be that supports your desire for the reconsideration: (1) you should be informed regarding the consequence of 2011 because you had not been given that opportunity last time. And you should be forewarned about this March 15 precedent that you are setting. So I'm just saying this in general, upon a motion for reconsideration where all of you agree, then I can go in -depth in saying, okay, these are the reasons why and go into it and give you the legal analysis. COUNCIL MEETING -30- September 21, 2011 Mr. Rapozo: And I just have one more question, Mr. Chair, and it ties into the request and I don't know if you were here. I know Amy was here at the last meeting where I did ask for an opinion on whether or not your office could properly opine on these issues because of a potential conflict because your office is on the resolution itself. Mr. Castillo: Yes. Mr. Rapozo: I don't have that on this list here. Mr. Castillo: I'm ready to opine in public on what your county attorney basically says what the call is. First of all, the rules of professional conduct does not prohibit my duty and obligation to this council to give you legal opinions on this matter. As far as I'm concerned, this matter does not affect my loyalty to you. I can be fair and impartial. What I will be giving you is my legal opinion, the best legal opinion that I can give you regarding the charter, the laws, and the process involved. You know, your positions are also included in this salary resolution and if you were to carry it even further to say that I'm in a conflict position, then that would mean that you are in a conflict position if you were to vote on your own salaries. Mr. Rapozo: Let me correct you. Let me correct you right there because I don't want the public to get the wrong impression. We are not allowed to vote on our salaries. We are the only positions in that resolution that we cannot affect. There is none of us here and they set it up that way because of the conflict. So there is a huge difference between your office on that resolution and ours, and I need that to be clear to the public. If you read that resolution, we cannot change that. This council cannot change that. Mr. Castillo: Yeah, but you vote on the budget. Mr. Rapozo: Correct. Council Chair Furfaro: Mr. Bynum? Mr. Bynum: And I'm just on the procedural issue about this. Are you in essence saying in your opinion it's okay to support the Chair on this, that we're not violating Robert's Rules? Mr. Castillo: Yes. Mr. Bynum: Okay. I just think it would be a lot cleaner if we just voted to reconsider and then had that full dialogue. I'm really torn on this procedural issue. I'm not torn on the concept that we should go there, but I'm torn on this procedure. Council Chair Furfaro: Well, then you vote when I ask the question. That's why I'm giving everybody the opportunity to respond. If you choose not to have the county attorney address the five questions that I believe queried Mr. Chang's request for reconsideration, you vote no. Mr. Kuali`i: It's not a question for the attorney. It's just a statement. Council Chair Furfaro: Go ahead. COUNCIL MEETING -31- September 21, 2011 Mr. Kuali`i: So Mr. Chair, I would put forward that your statement about having the county attorney there to question regarding a councilmember's proposal to reconsider would be like allowing Councilmember Chang to have the attorney make his case for why it should be reconsidered, and if that's the case, then I should have another attorney that's there to help make the case why we shouldn't reconsider it. And that's why I think this discussion, just on the process about whether we reconsider or not should be just us. Council Chair Furfaro: Okay. Councilwoman Nakamura. Ms. Nakamura: I'm also having a difficult time because as important as this reconsideration is and the information that was provided to help us in our deliberation process, we only received this five -page memo from the county attorney's office this morning at 9:22 a.m. and I don't believe anyone around this table had the opportunity to clearly review it and to read it and to understand your rationale. So it's unfortunate because I believe that having this information and digesting it would help me to make a better decision on whether or not to reconsider. So I'm very frustrated that I personally did not have the time to review this information, and yet we're having to make a decision on whether or not to hear your testimony. So I just wanted to mention that. Mr. Castillo: Well, yes, and when first deputy Amy Esaki was here, she said that she could give you an opinion in two weeks and something would be... and there were... actually, what happened was, in my review of the video, there were three questions that were asked from Councilmember Yukimura and I intended to come here and answer the three questions on September 8 and September 15. I had an email question from the Chair, and Councilmember Nakamura, I got an email from you on Sunday, and I answered that email regarding your questions and then yesterday I had questions posed to me by Peter Morimoto. And so I'm prepared to answer those questions. I understand that you would like the answers sooner, but I did answer your questions on the day that you asked, but I was prepared to come here and answer the three questions that were posed by Councilmember Yukimura. And I'm prepared to go through the whole analysis on the floor for the public. Council Chair Furfaro: Vice Chair. Ms. Yukimura: I just want to say for the record that the implications of rejection are related to whether to reconsider because if we don't reconsider the rejection, it will stand and we need to understand the consequences Of letting that rejection stand. That's why I believe it is okay to talk about the implications of rejection in the discussion about whether to reconsider. Council Chair Furfaro: Mr. Rapozo? Mr. Rapozo: Then you vote to agree with the motion to reconsider. But if you don't have the necessary votes, it doesn't go and that's the democratic process, JoAnn. I mean because you may not have the votes to ... I'm just saying... Ms. Yukimura: I'm going to vote how I will vote. Mr. Rapozo: Exactly, but what I'm saying... Ms. Yukimura: But we're talking about whether to accept... COUNCIL MEETING Mr. Rapozo: Council Chair Furfaro: -32- September 21, 2011 Hey, hold on, I have the floor. I have the floor. Mr. Rapozo has the floor. Mr. Rapozo: All the discussions on these items can be had if the motion passes. But I've read the opinion, I've read it all and I may disagree with one or two of them, but I have had the opportunity to read them. I'm prepared to vote. And unfortunately, I'm not going to support the motion to reconsider, but if I get outvoted, then we'll have the discussion. If the votes... if we don't pass, then we won't, and it stands. That's the democratic process, but we shouldn't be manipulating the processing and say, hey, we want the information because now you are dictating or debating the issues of the original motion. And that is against Robert's Rules. Ms. Yukimura: Not when it has implications for the motion to be reconsidered? Mr. Rapozo: Where does it say that in Robert's Rules, JoAnn? Tell me, please. Ms. Yukimura: It says, you shall discuss the reasons for reconsideration. Mr. Rapozo: Correct. Ms. Yukimura: And I believe that the information that we're trying to have put on the table is relevant to the decision about whether or not to reconsider. And all I'm doing is encouraging people to vote to allow that information in so that we can make the right decision about whether to reconsider and then make the decision if we vote to reconsider about whether to reject or not. Mr. Rapozo: I heard the request and it was basically what I'm hearing around the table is we need to reconsider because we need more information. Ms. Yukimura: No. Mr. Rapozo: No, that's what I'm... Ms. Yukimura: No, I'm saying that the information is important to our vote to reconsider. Mr. Rapozo: I am already ... I read the information and what I'm saying... Ms. Yukimura: You don't understand it. Mr. Rapozo: Oh really? Ms. Yukimura: And that's why we're trying to have a discussion. Mr. Rapozo: Oh- h -h -h. Council Chair Furfaro: Members? COUNCIL MEETING -33- September 21, 2011 Ms. Yukimura: Council Chair Furfaro: I don't understand it either. Members, we're in recess. There being no objection, the meeting was recessed at 2:16 p.m. The meeting was called back to order at 2:24 p.m. and proceeded as follows: Council Chair Furfaro: I'm going to recognize Council Vice Chair Yukimura first. Ms. Yukimura: Yes, thank you, Mr. Chair. During our break and presently right now I would like to apologize to Councilmember Rapozo. When I said that he didn't understand, I really only meant that none of us, I don't understand either, the opinion that was given to us this morning or this afternoon until we really are able to discuss it with the attorneys. That's really what I meant. And what I've been hoping for was a discussion of the attorney's opinion. But Mr. Chair, Mr. Rapozo also suggested and I think perhaps that would be a better process if maybe we go directly to the vote to reconsider and hopefully that'll pass and allow us to get to the information that we need. Council Chair Furfaro: Okay, first of all thank you for sharing with our colleagues at the table your apology and Mr. Rapozo had the floor. I thank you for that. I'm following this discussion here and I want to make sure we understand that I had sensed that there were questions that were left unanswered the last time around and I felt that ... I wanted to at least throw that offer out on top of the fact which I was also going to give the members an opportunity to participate in that decision over the Chair's rule. But I think what I've seen is these comments from Mr. Rapozo that really indicates his desire to the limitations of debate on the consideration for this piece and he brought that out as a reminder of about a Point of Order. I just wanted to at least expand the discussion with the county attorney with some of the questions that went unanswered, but at the same time I'm hearing on the table that the vote for reconsideration should be really limited to the discussion that is listed as the agenda item in that if we get to a reconsideration, we can have other substance by calling the county attorney back, okay. So for the county attorney, I'm going to excuse you, okay. And for the body, I just want to point out to you I think in this process of a leadership participation, I won't do this too often, but I was going to allow you to override my suggestion of hearing the county attorney, but I've subsequently removed that and will concur to the limitations of the debate as represented by Mr. Rapozo. So with that item, I believe Mr. Clerk, we're going to go right to the vote on a reconsideration. Mr. Kuali`i: So are we discussing (inaudible). Council Chair Furfaro: I'm going to let the clerk read that item on the reconsideration. Mr. Nakamura: Council Chair, we're on communication C 2011 -273, which is a communication from Councilmember Chang, requesting the Council reconsider its rejection of Salary Commission's Resolution 2011 -1. There was a motion and a second for the reconsideration, Mr. Chair. Just for clarity, it takes a majority vote for the reconsideration. Council Chair Furfaro: Four votes? Mr. Nakamura: Four -vote majority, yes, simple majority. COUNCIL MEETING -34- September 21, 2011 Council Chair Furfaro: Okay. Mr. Rapozo: Were we going to have discussion before you take the vote? I think Mr. Kuah'i was asking if we were going to have some. Council Chair Furfaro: Again, I may... at 63 I may move a little slower than some of you, but I wanted to make sure that we were really clear that I recognize Mr. Rapozo's question about the limits on the debate and having the legal questions answered. Now, we're going back to the motion which was made by Mr. Chang with a second and we can now have discussion on the reconsideration. Who wants to speak first? Don't rush to the mike. Mr. Kuali`i. Mr. Kuali`i: I think it would be appropriate to hear from Mr. Chang as to what are the reasons for asking this Council to reconsider. It's his motion, it's his communication. Council Chair Furfaro: Okay, very good. Mr. Chang, you have the floor. Mr. Chang: I'm so glad you asked and I'm so glad I have this opportunity because it seems like it's been a long, long time and we've been going around and around in circles. Council Chair Furfaro: No, I don't think we've been going around in circles. I think we clarified some points. Mr. Chang: Well, we clarified some points, but I'm glad I get to recap this because I'm ready to vote. The reason, just to let the members of the viewing audience and the table once again, when we last ended this meeting, I believe it was two weeks ago, we had our first deputy attorney Amy Esaki here sitting in place of our county attorney Castillo, who was not here, and this salary commission item really involved Mona Clark, who happens to be here. But at the end of the day there were three questions, which I can briefly say it talked about the salary caps that are established or reduced after July 1, 2011, can salary resolutions that have been vetted through the charter process 2010 resolution be amended subsequently, and does the mayor or other elected officials have the authority to reject their raises. And I also had a question regarding the significance of that March 15 date and I understand through further memory because it was several hours ago that Councilmember Rapozo also had asked the question that I don't believe was answered. So my reasoning for reconsideration was that I do feel that it's important that we hear the answers to those questions and that's the real reason and the only reason. And just to recap everything, I'm not here to automatically change my reasoning or my vote for how I voted two weeks ago, but I do feel that it's important and I feel that we left it unsolved and that's the reason for my reconsideration. So thank you for once again for allowing me to recap why I and what I requested as I requested. So I thank this body for allowing me to at least have this item for discussion. Thank you. Council Chair Furfaro: Okay. Members, you have any questions of Mr. Chang? Go right ahead. Mr. Kuali`i: So that alone is your concern and it's your concern today, but it wasn't your concern two weeks ago when we voted because we all spent the whole morning, two or three hours worth of discussion. We got what we got out of the county attorney's representative, Amy Esaki, and we determined, based on this October 4 deadline, that the rejection was appropriate and that we could hear COUNCIL MEETING -35- September 21, 2011 from the salary commission again. All you're saying is between those two weeks what did you learn that made you concerned to put this forward that it had to be reconsidered because we knew on that day what the questions were. We had these questions. We didn't have the answers. We decided even without having those answers we could make that decision because of the deadline and because we knew it wasn't set in stone, that this is ever evolving. The salary commission can come back to us. So what changed besides that? Anything? Mr. Chang: I believe what changes I think I ... I'm trying to understand a little more. I'm just asking for a reconsideration. If you don't want to accept the reconsideration, just say you don't want to accept it. I might not accept it, but I just don't want to dust say for the benefit and I'll say this maybe I didn't know as much as I should have known, but the communication that Chair Furfaro gave to us chronologically, we're going from November 2006, 14 different ... I mean we can go from March/April 2007, June 2007, June 2008, January 2009, April 2009, all the way till... all the way 14 communications thereafter to October 4 heading on into the 60 -day deadline. So whatever my rationale is, I'm sorry, I apologize if I had to go and ask for further questions. Mr. Kuali`i: I don't know why you're apologizing. There's no reason to apologize. Mr. Chang: Well, I was asked a question, so... Mr. Kuali`i: How about this other question? Council Chair Furfaro: Gentlemen, I just had a recess for this. You talk to the body, not across the table at one another. So did you have a question for Mr. Kuah'i? Mr. Chang: I have no questions. I would be happy to answer the question, but I would hope that we can vote thereafter. So however it is, if we're going to go forward, we go forward. If we're not going to go forward, we're not going to go forward. Next agenda item. So if you have a question, if I can answer it, I'll try my best. Mr. Kuali`i: I still have the floor and I still have a question. Council Chair Furfaro: I'll give you the floor again. Mr. Kuali`i: Don't you feel that this council still has the opportunity for reconsidering this issue by working with the salary commission and hearing from them further on any future resolutions of what is pertinent and important and pressing and needs to come before us without voting on the reconsideration today? Mr. Chang: I feel that we can and if I'm not mistaken at the last meeting Councilmember Rapozo had requested and/or asked if a salary commission board member would be present and I haven't seen any of those board members this morning, this afternoon, or at this particular minute itself. I believe we can, but for whatever the rationale that Councilmember Rapozo had asked to have a salary commissioner here, had the salary commissioner been here, hopefully they could have ... I don't know and I don't believe that they can speak on behalf of the body, but individually I believe that they are able to give their own individual COUNCIL MEETING -36- September 21, 2011 opinions. So as I mentioned a little earlier, I am ready to call for the vote and I would encourage -those of you on the table that want to support, support. If you don't want to, don't, then we move on. Thank you. Council Chair Furfaro: Okay, Vice Chair Yukimura. Ms. Yukimura: Yes, thank you. I'd like to speak to voting for the motion for reconsideration. I did not vote to reject the salary resolution in the last vote. I was the one of the 6 -1 vote. And I didn't do it because I didn't have the answers to the questions that we posed to the county attorney. I thought it was important for us to have those answers before we voted and we had time. We had 60 days, so we didn't have to reject it at the last meeting. Now Councilmember Kuali`i keeps saying that we knew that it wasn't set in stone. One of my concerns was that by rejecting we have one shot at the resolution. We can reject portions of it or all of it. And that's it pretty much for that resolution. And I didn't know whether you could really bring up anything more during this next year or whether it would have to be for the next round of salaries. And I felt that this resolution that was proposed was better than the one passed in November and that it gave us the chance to reflect in the department heads' salaries some of the line item cuts that our line employees had to make. And so I thought we were maybe throwing away that option, actually foreclosing that option by voting to reject before we had all the answers to the legal questions. And so back then and today, I feel that we really need to do our due diligence to understand the ramifications of our vote in rejecting the salary resolution and we really need to have this discussion with our attorneys before we make the vote. If we vote against reconsidering, that's pretty much it, as I understand with the resolution. And it may be setting the system for the rest of the year and I am not sure that we want to do that. I would like to have the option of some other options. But without consulting with our attorneys, I don't know and that is why I am going to vote to reconsider and I hope that my colleagues will also. Council Chair Furfaro: Mr. Bynum. Mr. Bynum: I will try to be brief. I think I have made it very clear I want to vote to reconsider today because it will allow us to have more discussion. I supported Mr. Rapozo in the procedural issue because I think we should have that vote first before we go into that discussion and I'm glad the Chair had the wisdom to call for the question here because that may be moot. But I also agree with Councilmember Chang. Hey, more information isn't going to hurt us and I agree with Councilmember Yukimura. I may have made a mistake. I may have foreclosed further input from the council on this issue, but I need to hear from the attorneys to find that out. So I am going to vote to reconsider. Council Chair Furfaro: Mr. Rapozo? Mr. Rapozo: Thank you. Well, I'm not going to be supporting the motion to reconsider. I think we have had the discussion. I will tell you that I'm very concerned. I still believe that there is a conflict with the county attorney's office because of the purpose of the resolution. I will be requesting an interpretation of that through the Board of Ethics because I believe because the county attorney, as well as every deputy, is listed on the resolution that in fact we should have requested an opinion from special counsel or from maybe the attorney general. That is not meant with any disrespect for the county attorney's office. I'm just looking at what's the cleanest way. Obviously if you are on the resolution, I believe that there could be an issue with a potential conflict. COUNCIL MEETING -37- September 21, 2011 The other thing that I want to make note of is if in fact this will pass and I believe it will, that I would as soon as we get into the discussion I am going to be making a motion to release this county attorney's opinion to the public today and I'm hoping we can get the support because I want the public to see this opinion. You know, I need to make a comment that in this county council we have seven individuals, and we don't always get our way. I mean there is a process that we must follow and, JoAnn, you found out last week or two weeks ago, 6 -1. That's how it works, the way it's built. The democratic process is built that way. But we have to get over it and get to the votes, so we can move on as opposed to trying to figure out who is right and who's wrong. Everybody is right; everybody has their own opinion, and at that point I think everybody has an opportunity to voice their opinion. But at the end of the day, the votes will be taken and the majority will prevail. I will have a presentation if this passes and we get to the salary commission resolution. I am disappointed that the salary commission representative is not here. I did request their presence. It's kind of disturbing that they're not here and I can understand if they couldn't make it. But I will reserve my comments as far as the process on that aspect if, in fact, we get to it if this should pass. With that I will not be supporting the motion to reconsider. Thank you. Council Chair Furfaro: Anybody else wishes to speak before I speak? Go right ahead. Mr. Kuali`i: Mr. Chair, I too will not be supporting this reconsideration for many of the reasons Councilmember Rapozo has stated. I too believe that there is a conflict of interest with the county attorney and if we're going to hear from the county attorney himself to tell us whether he has a conflict or not, that's kind of wrong. We should hear it from somebody else, some uninterested party. Mr. Stoessel said earlier, what's wrong with, there's nothing illegal about this rejection remaining in place. I would have hoped that Councilmember Chang putting this forward could have at least made a case for and Councilwoman Yukimura seems to be saying some of it, but he put it forward, so make the case of why it's so necessary. Mr. Stoessel, and I agree with his comments, what is wrong with what the council voted on in November of 2010 remaining in place? Now it's already been in place since July 1, so we're going after the fact, trying to undo something that has been done. So it seems wrong. When Councilmember Bynum said, what is wrong with hearing more information? More information can't hurt us. However, when we get this document, when I get this five -page document, like Councilmember Nakamura stated, here in front of me when I sit down to participate in this meeting, I really don't have time to study this, you know, and participate in this meeting. So the rush, the time, where is that? More information to me, what is important about more information is if we get more information from one side of the argument and we don't have enough time because the questions didn't come forward or the attorney is not prepared to answer those questions because it's just by the seat of their pants because it wasn't prepared in advance, then it's still not enough information. So unless we can get all the information, and why don't we have the participation of somebody from the salary commission? At least the chair, maybe? We have participation currently from a former salary commission member. So much is missing as to why this is so necessary to undo what we diligently did two weeks ago, spending two or three hours, all of our morning, all that discussion. These seven brains here, you know, we can make decisions. We don't always have to rely on the attorney. We all have our positions and we are the elected officials. We are charged by the people to make these COUNCIL MEETING -38- September 21, 2011 important decisions and I thought we did that two weeks ago. I applaud Mr. Stoessel for supporting us and what we did and I have to vote no on the reconsideration. Council Chair Furfaro: Mr. Bynum, you want to speak a second time? Mr. Bynum: Yeah, I've already made my position on the upcoming vote. I just want to say that I appreciate the honor to second the motion to release the county attorney's opinion. That's something that I have advocated for for a long time in many instances, but I also want to just comment that I don't have concerns about conflicts of interest with the county attorney's office because I think what we may discover is that leaving what we did last week in place would allow for raises at the mayor's discretion or the police commission's discretion right now and what passing the motion would preclude that until 2013, and I want to get that clarity. But I don't think opining on something that's going to make sure you don't get a raise is going to be a conflict. So thank you for letting me make those comments. Council Chair Furfaro: Okay, Councilwoman Nakamura? Ms. Nakamura: I may be in the minority, but I also will vote to reject the motion mainly because two weeks ago and I feel the same way about how I felt two weeks ago, which is that the March 15 deadline in the charter, I strictly interpret that, and I think the people who worked on the charter commission at that time put a lot of thought into that date. I don't think it was randomly chosen. It was a date that is very relevant to the budget process. This information was to be fed into the budget process so that the budget that comes from the administration to the council reflected the opinion of the salary commission. And I have not waivered from that position two weeks later. And even though we may not have followed this process in the past, I still think it's a good chance for us in going forward to follow this process and to hold the salary commission to this process. And I believe that the budget we received from the administration, the budget that we approved as a council may have not been consistent with the salary commission's recommendations. So I just wanted to lay that out. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: I totally agree with Councilmember Nakamura. As I said in the previous meeting that I think that the March 15 date is quite strong. But I guess as an attorney, I didn't want to second -guess the attorneys and I wanted to find out what their position is. So that's why I would like to have the discussion with them. Council Chair Furfaro: Is there anybody else who wishes to speak before I speak? Mr. Chang, did you want to speak again? Mr. Chang: I'm fine. Council Chair Furfaro: Thank you. First of all, I put my homework in paper for all of you to look at. I've been the Chair eight months and I have been on the council going on my 10th year. But I want to say to you that I'm extremely concerned that in a matter of four years we have had 17 changes to the salary commission, whether it's rates reflect the pay scale, change the positions, add the positions, remove the positions, all of those are very, very concerning because the March 15 date is the date that we are supposed to submit and review the budget from the mayor, okay. That comes over from the administration. COUNCIL MEETING -39- September 21, 2011 The piece that I am also very concerned with is, as I read earlier, some comments made that dealt with the fact that John Isobe is participating as the head of the boards and commissions. As far as I'm concerned if you read item B dealing with boards and commissions administration, he has the ability to interact with all boards and commissions. I do have an issue when someone other than Mr. Isobe interacts with the boards and commissions from the administration because that authority is left here with the council. It is the council that has the final approval on the budget. And most concerning for me is this budget. I said it two weeks ago, I'm going to say it again, the budget should have reflected what the council approved, not what the administration chose to pay. Let me say that again. If the council approved the salaries recommended by the salary commission, they should have been in the budget, not the amount that the mayor negotiated with his people, and quite frankly, not taking any credit for what amounts to $173,000 of savings that is going to go to the surplus. But since we're not having feedback from the county attorney, I couldn't get that answer for myself. I also want to say that having good information is important for this body to make good decisions and I don't want you folks to think you're going to visit my ability to say let's reconsider the motion from the Chairman by having a popular vote because leadership isn't run that way and that's why camels, some have one hump, some have two humps. They may have been designed by a committee, but at the end of the day somebody needs to make that decision, okay. So I have made my point to the administration by saying those three things concern me and therefore, I will most likely support this reconsideration. But I want you to bring your attention to the process that I have identified. On August 28, 2009, the salary commission recommends, underlined, that Section 3 -2 -1 and repeal the section that would result in the salary commission having no authority over positions to exercise their authority over. Based on that, why have a commission? How did that come over to us? And so that concerns me. The commission makes salary recommendations. The salary recommendations get approved, denied, rejected in whole or partially accepted by the council. Those are the numbers that we should use for the budget. For the salary commission to remove that section gives them no authority. And their authority is separate from the administration. It is separate from the council. They make a recommendation, we choose to approve it or not. So I want to make sure that I thank Mr. Chang for his willingness to explain his reconsideration and I will probably vote for this reconsideration, but for completely different reasons. The salary commission cannot be giving up their authority. If the council approves the salary recommendations, then I'm telling the administration to show the positions in the budget, not what you finally agree to without taking any credit for reducing payroll and salaries. So we have some work cut out for us and I'm ready to call for the vote, but I want to make sure that the administration, to -date I do not understand the request that came to us from the salary commission unless it's about adding some positions that quite frankly, currently, aren't even on the salary commission list and all of those positions should be on. So members, I know I'm going in a little more different direction to you folks, but without getting some answers from the county attorney's office, these three things have raised concerns with me. So on that note I would like a voice roll call for the matter to reconsider. COUNCIL MEETING -40- September 21, 2011 The motion to reconsider the rejection of Salary Commission Resolution No. 2011 -1 was then put, and carried by the following vote: FOR RECONSIDERATION: Bynum, Chang, Yukimura, Furfaro TOTAL — 4, AGAINST RECONSIDERATION: Kuah'i, Nakamura, Rapozo TOTAL — 3, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: So we have a 4 -3 vote. Mr. Nakamura: 4 -3 vote. Council Chair Furfaro: Thank you. Mr. Rapozo: Can we take a 10- minute recess? Council Chair Furfaro: We certainly can. I think we need it. There being no objection, the meeting was recessed at 2:54 p.m. The meeting was called back to order at 3:14 p.m., and proceeded as follows: Council Chair Furfaro: I believe since we had taken the most recent vote, there are some members that would like to have a little bit more dialogue on this subject matter and obviously even for myself, I failed to point out one of my other concerns is the salary recommendations as they relate to the planning director and the planning commission who sets that by review, the fire chief and the fire commission that sets that, the police department has a commission with the police chiefs salary being reviewed. There are many other pieces in there that are not subject to any more than the commissions that represent those department heads being able to decide on a range but not to exceed the cap that's recommended. So on that note, Mr. Rapozo may want to give a presentation, but does want to have a little more dialogue. Mr. Nakamura: Correct, Mr. Chair. Since the council took the vote on communication C 2011 -273, we are now back to communication C 2011 -249 which is reconsidered. ITEM FOR RECONSIDERATION: C 2011 -249 Communication (08/18/2011) from the Chair of the Salary Commission, transmitting for Council consideration, Salary Commission Resolution No. 2011 -1, relating to the salaries of certain officers and employees of the County of Kaua'i, which was adopted by the Salary Commission at its August 5, 2011 meeting. • Salary Commission Resolution No. 2011 -1 Council Chair Furfaro: Thank you. Mr. Rapozo: Well, let me start off by making a motion to reject in entirety the salary commission resolution. Mr. Kuali`i: Second. COUNCIL MEETING -41- September 21, 2011 Mr. Rapozo moved to reject Salary Commission Resolution No. 2011-1, attached to communication C 2011 -249, in its entirety, seconded by Mr. Kuali`i. Council Chair Furfaro: So we have a motion on the floor, and a second, to reject the recommendation by the salary commission. Mr. Rapozo: Mr. Chair. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Would it be appropriate at this time to make a motion to release the county attorney's opinion, tracking number 11- 0952A, to the public? Mr. Bynum: Second. Mr. Rapozo moved to release the county attorney's opinion relating to the salary commission resolution (Tracking No. 11- 0952A, dated September 20, 2011), seconded by Mr. Bynum. Council Chair Furfaro: There is a second on the floor, so we are open to some discussion now. Council Vice Chair Yukimura? Ms. Yukimura: Just a technical question. There's no sunshine problem with doing this? Mr. Rapozo: Yeah and that's why I asked if it was appropriate. I'm not aware of the process, but I believe... Mr. Bynum: That's related to this agenda. Mr. Rapozo: Yeah, I believe it's just... Ms. Yukimura: It is related to this agenda and it's not something that the...well, I guess the public would need notice on? Mr. Rapozo: They got notice of the meeting. They know that the discussion was going to be had. Ms. Yukimura: They didn't know there was an opinion, though. Council Chair Furfaro: Okay, may I ask the county attorney to come up? There being no objection, the rules were suspended. Mr. Castillo: Good afternoon, Council Chair, Councilmembers. Council Chair Furfaro: Mr. Castillo, a question has been raised and seconded about the possibility of releasing the county attorney's opinion on subject matters related to the salary commission role and recommendations. I would like to hear from you. Mr. Castillo: Okay, Council Chair, Councilmembers, for the record Al Castillo, county attorney. What would be at issue here or what would be applicable would be your council rules. Rule No. 2 and Rule No. 18. I don't believe, COUNCIL MEETING -42- September 21, 2011 right now, that there are any objections regarding the sunshine law. As far as the application of Rule No. 2(a)(4), it basically says after consultation with myself. I really have no objections to the release of this county attorney opinion. Council Chair Furfaro: Thank you. Members, as you may have heard from the county attorney, he has no objections on the motion made by Councilman Rapozo, seconded by Councilmember Bynum to release the county attorney's opinion dated September 20, 2011 regarding issues pertaining to the salary commission and salary resolutions. Is there any further discussion here amongst the members or questions directed at the county attorney? There seems to be none. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Mr. Clerk, I guess we would like to take a vote on the release of this opinion dated September 20, 2011. The motion to release the county attorney's opinion relating to the salary commission resolution (Tracking No. 11- 0952A, dated September 20, 2011) was then put, and carried by the following vote: FOR RELEASE: Bynum, Chang, Kuah'i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST RELEASE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you very much. Should we have copies of that available? Okay, we're going to give you two more minutes to make some copies, maybe three. The question was posed by Council Vice Chair Yukimura that while we're waiting for copies of the county attorney's opinion, are there other items we can take up because some of us are attempting to get to the State Conference on Planning this evening. I already gave up my opening comments at 5:30 p.m. I told them I couldn't make it, so I'm not in as much of a rush as some others. So Mr. Rapozo, do you mind while we make copies if we take another item? Mr. Rapozo: Sure, I mean could I continue? Council Chair Furfaro: Oh yeah, sure. Mr. Rapozo: I just want to again and I mentioned it in a prior item that in fact I would challenge the attorney's opinion simply because of a potential conflict and again I mean no disrespect to the office of the county attorney, that I do intend to submit a request for a review of .. and more so going forward whether or not in fact our county attorney's office should be opining on matters that involve their office and the salaries. So I wanted just to make that note for the record that in fact I want the members to take that note. I do have a presentation that I will make later. It's a very short one, I believe four, maybe five slides, really about the process. But I do want to see where the discussion will go. Obviously I made the motion to reject in entirety, so I think that makes my position clear and if I feel that my presentation will add more information for the other members, then I'll go ahead and do that at a later time. Thank you. Council Chair Furfaro: Any further discussion on this item? If not... KipuKai? COUNCIL MEETING -43- September 21, 2011 Mr. Kuali`i: Mr. Chair, I just had one question and I don't know if this is the appropriate time to bring it'up or a little bit later. But in looking at these questions and the responses from the attorney, this opinion, and in looking at my notes from the meeting two weeks ago, those aren't the main questions. Some of it was relatable, but it's not. So I'm curious as to is there documentation of the questions that were presented to the attorney or was it just the questions that were asked at the meeting two weeks ago? Council Chair Furfaro: I believe there was documentation in the form of three different memorandums that went over. We can attempt to collect those for you. Mr. Kuali`i: Yeah, because I took pretty good notes and Councilmember Yukimura asked some really good questions that I was interested in knowing the answers as well. And this only partially answers those questions, not directly. Council Chair Furfaro: Well, again, I do know with our move I was without email for almost four days, but the reality is I think this is only the first series of questions that went over that were answered to this point. That's my best offer to you at this point, but I will ask the staff to gather all the questions that went over and appropriately wait for those answers. Any more questions here while we're making copies? If not, can I just ask that we just put this agenda item on the side and find out if we can do some business to clean up the rest of the calendar? We could actually start with claims. Pua, may I ask you to read that for us? CLAIMS: C 2011 -274 Communication (09/06/2011) from the County Clerk, transmitting a claim filed against the County of Kaua'i by Joseph Stave for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kaua'i: Mr. Rapozo moved to refer C 2011 -274 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Ms. Yukimura, and unanimously carried. C 2011 -275 Communication (09/06/2011) from the County Clerk, transmitting a claim filed against the County of Kaua'i by Waste Management Hawaii for damage to their equipment, pursuant to Section 23.06, Charter of the County of Kaua'i: Mr. Rapozo moved to refer C 2011 -275 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Ms. Yukimura, and unanimously carried. BILLS FOR FIRST READING: Proposed Draft Bill (No. 2416) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUA'I COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX (For the Tax Year 2012): Ms. Yukimura moved for passage of Proposed Draft Bill (No. 2416) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for October 19, 2011, and that it thereafter be referred to the Finance /Parks & Recreation/Public Works Programs Committee, seconded by Mr. Bynum, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. COUNCIL MEETING -44- September 21, 2011 - - Proposed Draft Bill (No. 2417) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUA'I COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX (For the Tax Year 2013): Mr. Kuali`i moved for passage of Proposed Draft Bill (No. 2417) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for October 19, 2011, and that it thereafter be referred to the Finance /Parks & Recreation/Public Works Programs Committee, seconded by Ms. Yukimura, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Proposed Draft Bill (No. 2418) — A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B- 2011 -733, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2011 THROUGH JUNE 30, 2012, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE BOND, GENERAL (CIP), AND HIGHWAY FUNDS (CIP): Mr. Kuali`i moved for passage of Proposed Draft Bill (No. 2418), that it be ordered to print, that a public hearing thereon be scheduled for October 19, 2011, and that it thereafter be referred to the Finance /Park & Recreation/Public Works Programs Committee, seconded by Ms. Yukimura. Council Chair Furfaro: Any discussion? The rules are suspended. Mr. Mickens, come right up. There being no objection, the rules were suspended. GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. It's been an interesting session so far, interesting for the public too. Council Chair Furfaro: They're all interesting. Mr. Mickens: More interesting today, though, Jay, okay? Council Chair Furfaro: Oh, superlative degree. Mr. Mickens: Yes, thank you. I just want to comment on this Bill 2418 and, Jay, I know that you've arranged a meeting with me and Larry. So some of this will be decided at that stage of the game, but I just wanted to ask a few questions about it. I'd appreciate clarification of this Bill 2418, particularly part C. To understand this correctly that $405,963.00 is being taken from the Roads Resurfacing budget in 2011 -2012 to take care of the five items that are so designated in this bill. We have never heard how the administration has accumulated $8.8 million in this budget from previous budgets. If resurfacing stopped for those three years to accumulate this sum and if so, why? I have copies of resurfacing budgets going back to 2000 and all were about $1.6 to $1.8 million per year, as you know, Jay. One year, I believe it was 2007, Jay, you found another $2 million to do more resurfacing, but if we can believe the $8.8 million accumulated balance, then Jay's additive was never used. The biggest question I have with this bill, if I understand it correctly, is why are we taking any money from our islandwide resurfacing program for some other purpose when we are basically on course to resurface our 300 miles of county roads on a 30 -year or longer plan. Unacceptable for me. Cost per mile to resurface is about $200,000 and going up with the cost of oil. Since we use one ton of AC to pave 90 sq. ft., not the one ton COUNCIL MEETING -45- September 21, 2011 per 108 sq. ft. used by most contractors, the numbers show that it will take us 30 or more years to pave all our 300 miles of roads. In other words, we need every dollar we can find if we expect to get our roads paved into a respectable condition. And since Tim introduced this bill, maybe he can answer my questions, about that one part of it anyway or maybe I shouldn't address it to Tim, you're the Chair, Jay. Council Chair Furfaro: No, I can certainly answer it as Chairman of the whole council on this first reading item. First of all, as I shared with you earlier, Mr. Dill has graciously agreed to meet on Tuesday with you and me to answer some of your questions. The exact time is not defined yet. Mari is working on it, but I reconfirmed with Mr. Dill when I saw him earlier today, okay. So that is forthcoming and I will make contact with you. The amounts that they are redirecting are based on the fact that they have — and I'm sure Larry can give you more detail— secured additional grant money to cover those particular roads. Plus, I believe, he's going to add two roads to the whole list and that's what he's going to be coming back to us when we have that public hearing. Mr. Mickens: Oh, so the $405,000 he's not taking out of the resurfacing program. He's got a grant or addition that he's putting in there. Council Chair Furfaro: He's got a grant equal to that amount plus some. Mr. Mickens: Right, okay. Council Chair Furfaro: So he's reshifting that money to other project engineering pieces. But the money that he's found in grants will also add an additional two roads. So there's no new money from the county coffers and we're going to get the same work from the grants plus another two roads. He'll cover that as we get closer to this. Mr. Mickens: Okay, thank you, Jay. Council Chair Furfaro: So I'll keep you informed for Tuesday. Mr. Mickens: Appreciate it. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Okay, members, this will be in Mr. Bynum's committee and I guess we should take a roll call vote if there's no further questions. Ms. Yukimura: I just have a comment. Council Chair Furfaro: Yes. Ms. Yukimura: Mr. Chair, I'm voting in support of this and I think it represents an effort by the public works administration to really maximize our road moneys by finding federal funds that are going to be an 80/20 match? Council Chair Furfaro: Yes. Ms. Yukimura: And so it's really going to allow us to cover more roads than we had originally thought. COUNCIL MEETING -46- September 21, 2011 Council Chair Furfaro: Thank you again for re- summarizing what I just said. We're going to get at least two more roads. The details are forthcoming, but thank you again for that summary. Mr. Bynum, did you have something to say? Mr. Bynum: This is good management. It will result in more repaving and I know... and you know, Glenn, doing it right. So this is good news, good management. Council Chair Furfaro: Yes, so again I'll be in touch with you, Glenn, for Tuesday. Now on that, Mr. Clerk, no further discussion. May I have a roll call. The motion for passage of Proposed Draft Bill (No. 2418) was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Thank you. Have we finished copying the material from the county attorney? Mr. Nakamura: We have, Mr. Chair. Council Chair Furfaro: Okay, so let's make that available to those that want it and can we go back to that item because I'm going to recognize Mr. Rapozo. There being no objections, the discussion on C 2011 -249 was continued. Mr. Nakamura: Council Chair, we're back on item C 2011 -249, which has been reconsidered, which is a communication regarding the Salary Commission Resolution No. 2011 -1. Council Chair Furfaro: Okay, Mr. Rapozo, is there any narrative that you would like to cover and I'm going to give you the floor to make a presentation if you'd like. Mr. Rapozo: I really don't have... not ready to do the presentation unless you want me to do it now. I can do it now. Council Chair Furfaro: No, we can have it another time. Mr. Rapozo: I just kind of wanted to see the discussion as it moves forward. My position has not changed from the last time we voted on this and contrary to what the attorney's opinion says, which basically says that the March 15 date in the charter is directory rather than mandatory and it states some cases that provide that explanation. I simply disagree. I believe that the charter language of March 15 is a mandate. I don't believe that the charter is a guideline. I think we all anticipate or we all expect to follow the charter. I mean it's quite clear, I think the legislative intent for that charter is to make sure that everything is done by March 15. And so we can agree to disagree and I disagree with that. That is the most, I think the most glaring reason for my non - support or for my support of rejecting the salary commission resolution. I think it is really, really clear and it was made clear at the last meeting that the salary commission resolution as it stands today provides the opportunity for the reduced salaries by the mayor. I COUNCIL MEETING -47- September 21, 2011 mean it's there. It basically is a salary cap. So rejecting the salary commission resolution really does nothing to disrupt the operation of this county. I think it is really unnecessary to have to go in and amend this resolution. I believe it's not proper. I think it's illegal and again, I will be requesting from the Ethics Commission a review of today's proceedings because I believe that not just the conflict, but I do disagree with the... and of course, we're not attorneys, well most of us aren't. But I do disagree that the March 15 deadline that the "shall" in the charter is not a mandatory deadline. So I'm sure we'll have that discussion shortly. I do have a short PowerPoint I think because I also have some real serious concerns about how the process was done, how, in fact, from November 3, 2010 from the minutes that I can find on the website there is really no activity of the salary commission until July 15 when they get a letter from the mayor basically saying, hey, please fix this. July 15 is the communication from the mayor and then on July 26, the meeting is held and in fact on July 26, the request from the commission is for Mr. Isobe to do the resolution. I have some real serious concerns about Mr.Isobe's role in this because I believe as the boards and commissions administrator, the whole purpose of the salary commission is to be an independent body. The boards and commissions administrator is an appointed position of the mayor and I don't believe and I'll share my observations later on the PowerPoint, but I don't believe that the charter provides for that authority for, in fact, the administration to have such a key role in this process. I think the salary commission is tasked with setting the salaries. That's their function. That's their responsibility. And if you look at the duties of the boards and commissions administrator, it's quite clear as to what he can and cannot do and what he should and should not do. In this case, I believe that the influence from the administration was much more than what the charter allows or provides for. I think it really takes away from the mission and the purpose of the salary commission. And again, I'll explain it more when I have my PowerPoint. But I just wanted to put that on the table as my reasons for rejecting this in its totality. Number one because I believe the deadline had passed and number two, I have some serious, serious concerns about the process that was used to get that salary commission resolution to the county council. Thank you, Mr. Chair. Council Chair Furfaro: Thank you, Mr. Rapozo. At this time, I'd like to ask the administration if you're prepared to share any additional information with us on some of the questions that were raised? I too I might say to the county attorney's office, to me it's very clear that the budget process is tied to our biggest single payroll item, which is salaries and wages. Salaries and wages need to be estimated, identified and submitted in the first run of the budget, which is tied to the date March 15. Further on if you read through the pieces of dialogue, it also makes reference to "or no later than May 1" and May 1 is the date that references the supplemental revisions or what we call the reforecast of the budget. So I think there's a very clear reason for the March 15 date and I really haven't heard during the reconsideration motion the answers to those. So is there someone from the administration that's going to help me understand the dates that appear? They seem very clearly tied to some of the processing of information that is solely the responsibility of the budget. Mr. Castillo: Council Chair, excuse me. Council Chair Furfaro: Yes. There being no objection, the rules were suspended. COUNCIL MEETING -48- September 21, 2011 Mr. Castillo: For the record, Al Castillo, county attorney. I think maybe it would be fruitful because there are more questions that have been posed to the county attorney's office and we do have an opinion on the March 15. I do have an analysis that I would like to present to all of you and maybe after I go through my presentation then if you have any questions... because embedded in my presentation to you, I have the questions that were sent to me and our answers. So that might be helpful. I'm just throwing it out there as a suggestion. Council Chair Furfaro: Are you prepared to make that presentation on behalf of your office now? Okay. Well, we're back to having a presentation from the county attorney's office that might answer some of those dates. So Mr. Castillo, should I take a few minutes break? You have a PowerPoint? You have a narrative? What are you going to give us? Narrative? Okay. Let me ask you to come up and I'll suspend the rules. Mr. Castillo: Good afternoon everyone, Council Chair, Councilmembers, Al Castillo and Mona Clark, county attorneys. First of all I wanted to share with you I don't have a PowerPoint because I'm of the old style. I have my notepad and I'm just going to give you what I have here. I request your indulgence and patience and could you wait until I get through. Council Chair Furfaro: We'll wait until you do your presentation and then we'll ask questions. Mr. Castillo: Thank you very much. First of all, what I'd like to say is that because the questions will be regarding 2010 -1 and 2011 -1, right now the operating resolution is 2010 -1 that was adopted on November 3, 2010. As you all know because you all were there, these were based on the recent implementation of the furloughs, that on the resolution it recognized the current economic climate, the state's transient accommodation tax, the real property tax and then it asked to proceed with caution. And at that time, Councilmember Bynum basically said, I think it's important for the public to know that this does not mean that there will be increases in July. It would allow them, but the Mayor still has the prerogative to keep the salaries at their current level. Councilmember Kawakami at that time said that these are measures that are being done in light of the upcoming challenges in the legislature. Little did I know that he would be the new representative. Now, the motion for ... and that was presented to you ... it was adopted November 3, 2010 and it was passed by all of you on November 24, 2010. Now as you all know in July of this year the salary caps took effect and the way that the ... in salary resolution 2011, again, if you look at the whereases, it's again based on the economic times, but then it also talks about the supplemental agreement with the Hawaii Governmental Employees Association, the HGEA, which called for 0% increase. The resolution itself basically provides justification that says it's consistent with the supplemental agreement and it is an effort to remain consistent with the 2012 budget. Now as you all know, 2011 -1 does move the effective date of the specified salary increases from July 1, 2011 to July 1, 2013. And it also corrects Section 2, which freezes specified salaries until such time that the delayed salaries are able to catch up. What I'd like to point out is that if Salary Resolution 2011 does not pass, additional funds may be required to supplement the budget to account for any pay increases that are contemplated in the 2010 resolution as of July 1, 2011. Council Chair Furfaro: Excuse me, I know I said that, but I have to tell you. That's what I just said earlier. COUNCIL MEETING -49- September 21, 2011 Mr. Castillo: Yes. Council Chair Furfaro: It was the administration's responsibility to include $173,000 into salary requirements when they submitted the budget. Whether they pay less or not has nothing to do with what the council accepted from the salary commission. Mr. Castillo: I'm just doing a legal review and you as legislators... all I wanted to say, Council Chair, is that right now the budget does not contain the amounts that may be required should the respective appointees go through the process and obtain any salary increases. Council Chair Furfaro: I understand that, Al, and that is the administration's responsibility to submit an amendment to their budget. It was the administration that showed the lower amounts than what we approved and you didn't get to take the credit for it. Mr. Castillo: I'm just running down my answers to my legal analysis to all of you. I'm not here to debate. I'm just going down my rationale. Anyway, three questions were posed to First Deputy County Attorney Amy Esaki on the 7th and when she got up here and Councilmember Yukimura asked the questions: (1) Can salary caps that are established be reduced after July 1? The legal answer to that is yes, but the method of doing it is the salary commission could adopt a new resolution. (2) Can a salary resolution that has been vetted through the charter process, 2010 resolution, be amended subsequently? The legal answer to that is no because the operative word is amended. The council, pursuant to the charter, has the various choices. If it's a rejection, then the salary commission does have the prerogative to submit a subsequent resolution. (3) Does the mayor or other elected officials have the authority to reject their increases? The legal answer to that is no. However, Section 7.03 of the Kauai County Charter allows for a reduced salary for the incumbent mayor. I just wanted to point that out. So those are the three questions that were posed to us. Now let me get to questions posed to me by Councilmember Nakamura and this was sent to me on Sunday and I replied to her. Questions: (1) Is the timing of the salary commission's recommendation consistent with the county charter? My answer to that was that the March 15 date does not have any relevance to the proposed 2011 -1 Salary Resolution. Now, as I go further down I will be answering the reasons why, okay. (2) If the July 2011 salary caps remain, what is the legal salary pf the mayor as of July 1, 2011? And the answer to that is the cap amount. (3) Must the county annual budget reflect the salary caps established by the salary commission? Ms. Yukimura: Can you read the question again? COUNCIL MEETING -50- September 21, 2011 Mr. Castillo: (3) Must the county annual budget reflect the salary caps established by the salary commission? I saw it as a tricky question and I'm not trying to be tricky, but the best way for me to answer that is if the council anticipated pay increases, then the funds should have been implemented to allow for the pay increases. (4) Can the salary commission delegate the setting of specific salaries to appointing individuals and commissions? I can only answer that by saying that the salary commission appropriately designated a cap granting the respective appointing authority the ability to set salary amounts lower than the cap. I have questions sent ... I'm sorry ... I have questions sent by the Council Chair that I can answer. (1) Should the council be budgeting the recommendation made by the commission? If there was a reasonable expectation to fund the increase as anticipated, then the council could have. That's the best way that I could answer that. (2) Is it possible that going forward the salary commission will recommend a range of salaries for a number of appointed positions giving them the most flexibility on performance? The answer that I have for that is the charter and the salary commission through the established resolutions already establishes a range by allowing the appointing authority to set a lower salary amount. Questions sent by your legal analyst, Peter Morimoto, yesterday morning. (1) Is salary resolution 2011 -1 valid? The answer to that is yes. (2) Did the salaries in the November 2010 salary resolution previously considered by the council take effect on July 1, 2011? The caps did, but the increases did not. (3) If the salaries in the November 2010 resolution did go into effect on July 1, 2011, does the salary commission have the authority to defer those salaries to a later date? It would be no if it's to defer, but yes through the council if upon submitting a proper resolution. (4) Is the Salary Resolution No. 2011 -1 timely or should it have been submitted prior to March 2011? My answer to that is the March 15 date is really not relevant and especially not relevant for 2011 because it doesn't increase any salaries. Now, let me talk about Section 29.03 of the county charter because that's where the focus of this discussion is. And a comment was made before that if we remove the political process we remove the people. Well, basically the county charter and especially this amendment in August of 2006 was presented to the people and is the will of the electorate, and the entire language that is added starts from that March 15 date. What's problematic in terms of legal interpretation is that the charter amendment did not contain discussion on implementation of the March 15 date. The charter amendment as you read it now does not add or include qualifying language. That means that it is subject to interpretation. I tried my best going back to 2006 to find language of any legislative intent regarding March 15, but I couldn't find any discussion that would be helpful to this body. And that is the reason why I cannot opine to you that the March 15 date does 100% focus on the budget. However, it does ... because you have two or three other March 15 dates in COUNCIL MEETING -51- September 21, 2011 the charter and those dates do coincide with the budget, one can make a reasonable assumption or a reasonable argument that the March 15 date that is contained in the charter was contemplated to mean that this has to be tied in with the charter. If there is no qualifying language, if there is no written intent that I could find way back in August of 2006 when the charter commission members met, then what I look towards is precedence. And I look towards precedence set by prior resolutions, prior commissions, prior councils. I look at the 2007 and 2008 writings that the salary commission came out with that extensively portrayed their position, their understanding, and their intent. I looked at Chair Allan Smith's resolution of 2008 which was adopted on June 24, 2008 by the salary commission, after March 15. I looked at 2009 -1, the resolution of Chair Gini Kapali. That was adopted on April 28, 2009, after the March 15 date. I looked at the 2009 -2 resolution, the Gini Kapali era. That was adopted on August 25, 2009, after the March 15 date. It was August 29 that that resolution was presented. The agenda item was C 2009 -308. It was approved about a month later by the council on September 23, 2009. There was no discussion at that time regarding the March 15 date. I looked at 2010 -1 resolution, Charlie King, adopted November 3, 2010. This resolution is agenda item C 2010 -308, yeah the same number, approved by the council on November 24, 2010, again after March 15. The 2011 -1 and the 2009 -2, both were adopted in August of their respective years. The 2009 -2 was approved by the council a month later. The resolution of 2011 -1, August of this year, was presented to the council about the same time as 2009 -2. Had it been approved, it would have been adopted about the same time as the last. I want all of you to be extremely cautious about the precedent that you want to establish and this is the reason why. Section 8.04 of the county charter designates me as your county attorney or designates the county attorney as your chief legal advisor and legal representative, okay. That's the charter. Five of you confirmed me as your legal representative, including Councilmember Derek Kawakami, at that time. You know I take that confirmation very seriously and I always present to you the best possible legal advice that I can. But I have to caution you that I am your legal advisor and the reason why I caution you is this: that I give you my legal opinion as your legal advisor. It's up to you to take that legal advice or not. And if you reject that legal advice, the shield that you get from the legal advice that I give you is a shield. If you reject that legal advice and you go out on your own, then there may be a question on whether or not you have subjected yourself to personal exposure. I'm just telling you guys what the law is. The reason why I tell you this is if you hold fast to each March 15 or March 15 of 2011, March 15 of 2010, March 15 of 2009, you might be raising a legal question of the propriety or the impropriety of the past salaries. At risk would be the nullification of other salary increases. Essentially we would be retreating backwards to 2007. I cannot find any legal precedent, and we looked, that says the March 15 in the charter means the March 15 of this year. So based on that, I ask you to not make a big issue of the March 15 and not set a precedent. Now, the agenda item that was presented to you two weeks ago, I would like to say for the audience out there it had nothing to do with anyone writing a letter to the editor. It had everything to do with the salary commission in every instance along the way from 2007, when they came with the adoption of their resolution. They did their transmittal to the council and this is what it is. Just like 2009 -2, the same thing that occurred here. If there are any challenges or complaints, then this council maybe shouldn't be the ... I'm of the opinion that if there are any challenges or complaints about this process, then those complaints should be aired at the proper forum. COUNCIL MEETING -52- September 21, 2011 I would like to thank Chair Furfaro and Councilmember Chang for giving me the opportunity to address these issues which are important issues that you have to decide upon. Thank you. Council Chair Furfaro: Mr. Castillo and to other members, I would like to summarize a few things as I see it, not as an attorney, but as a seasoned manager because the County of Kauai is a corporation. The chief executive officer is the mayor, but within our charter, there are certain guidelines that are focused on the responsibilities of this body. (1) The responsibility of the body is the budget. Do we have any disagreement? Mr. Castillo: No disagreement. Council Chair Furfaro: (2) The commission that is responsible to set the tone for salary compensation packages is two -fold: (1) It's with an independent body called the salary commission; and (2) for all of the boards and commissions who are responsible for hiring their own department heads need to have guidelines and caps when they do reviews of those department heads, i.e., police commission, planning, fire commission, okay. They need to see in the budget the ranges of salaries acknowledged as fair and reasonable caps on compensations as recommended by the salary commission. First and foremost, the administration does not have that authority to set those salaries for those individuals that they hire for the commissions, nor does the council. It lies with the fire commission. The one thing they need to get from the salary commission is what the cap is. The performance review is done by them. They reward good performance based on the cap, not on what is submitted in the budget. The administration chooses to submit that in the budget. The administration should be choosing to submit a budget that has the recommendations made by the salary commission so that the boards and commissions associated with planning, fire, police can have some leeway as to rewarding a department head and retaining a department head who is responsible to their commission. That is how you retain people. The council has the ultimate authority to do that, but it's very specific in the charter that our authority is tied to a budget review of March 15 with a reforecast due no later than the first day in May. I cannot say to you that the mayor has done a very, very appropriate thing in these economic times today by holding some of those amounts in his budget, but they should have budgeted the amount approved by the salary commission, no different than this body of which I think three of us are still here which approved the recommendations back in 2007 for incremental raises. Why? So that we could get the best people for the right price and be able to retain them. So I don't agree with your assumption on March 15. I have to tell you I believe it is specifically tied to a budget process which is this body's responsibility. On the 2007 date, we had no idea of the economic downturn and even the possibility of implementing furloughs. We were dealing with the prior years of establishing salaries that were competitive to retain people. The administration chose not to put those amounts recommended by the salary commission and I do not think they have the jurisdiction to basically say, this is what we budgeted for the police chief, this is what we budgeted for the ... they needed to show the recommendations made by the commission so that they could have independent reviews of those directors of those departments for that purpose. Now, will it contribute to the surplus at the end if we don't play it? Yes. Thank you very much, everybody's recognizing the economic climate, so we have a surplus at the end. But currently right now we are short $173,000 for the purpose COUNCIL MEETING -53- September 21, 2011 of fairly representing what this council voted on in 2007 over a four - increment salary raise, okay. You know, that's my first piece that had to be done in advance because I do believe it is very clear what the March 15 date is about. Now, if the administration wants to come up and massage something or so forth, guess what? They come to the council with a budget amendment for specific salaries and the rationale behind it is based on performance. Whether it's controlling cost, doing better performance based on controlling staffing levels, completing projects and so forth. But you have no room for any of the commissions to reward good performance for those that may have come in say with only three years' experience, okay. Now, here's the bottom line to that. If you drag out what the salary commission had presented to us, by our charter the liability exists. The liability for what we approved in the charter recommendations for salaries exist. If the police chief wanted to appeal his salary based on knowing what the salary recommendation is, he can do it. Whether he wins or not, he can do it. The exposure is there is my point. MONA CLARK, Deputy County Attorney: (Inaudible.) Ms. Yukimura: Can you speak into the mike, please? Ms. Clark: Sorry. There are conditions precedent for the salary caps to go into effect. They're not automatic. Mr. Chang: Mona, for the record, you want to just... Ms. Clark: Oh, I apologize. Mona Clark, deputy county attorney. The salary caps are just that. They're not automatic. You could have somebody do a stellar performance and still not give them an increase. Council Chair Furfaro: I understand that. Ms. Clark: (Inaudible) no obligation. Council Chair Furfaro: But what you're not understanding in the legal office is the potential to give them more is in the resolution from the salary commission and it wasn't budgeted. You know, you're talking... Mr. Castillo: Yeah, but the contents... Council Chair Furfaro: We have to make assumptions about potential exposure. Mr. Castillo: Okay, but the contents of both salary resolutions, we know what the contents are. What I'm saying is in the 2011 resolution, the mayor does in the whereases of the resolution through the salary commission does state his position regarding recognizing economic climate and the ... I don't want to get in-between ... I don't want to be a wedge between the policy considerations regarding this year's budget on the wisdom of the mayor sending over the budget and this council approving the budget. What I'm dealing with is the legal implication, which is an observation of .. an objective observation where we do not have the moneys in the budget presently to account for the July 2011 increases. COUNCIL MEETING -54- September 21, 2011 The arguments, policy considerations about that is ... I'm outside of that. I'm just saying we don't have it. If you don't pass 2011, then what will happen is then if the increases do occur, then there's going to be more moneys. Council Chair Furfaro: I have to tell you, Al, you have now gotten to the crux of this whole bad sore that's on the piece. There's not enough money. So come in with an amendment. It was that budget that required it and I'm going to say to you right now that's my whole point. Mr. Castillo: Yes, but... Council Chair Furfaro: It isn't about penalizing these people with a two - year deferral. If you know the budget is short, submit a budget amendment. Mr. Castillo: Well, then, yeah, but I guess the way that I look at it is I don't ... for me it's like which came first the chicken or the egg. And in November of last year, the council approved the salary increases, but when we ... because I'm here. When we went through the budget process, the salary increases that were contemplated or approved by the council didn't occur during the budget process and I'm not in a position to opine on who's to blame. Council Chair Furfaro: Understood and I was Vice Chair then, but I'm going to say to you in November if you gave us the opportunity to make approvals for people's salaries, we're back to the March 15 deadline. Why didn't the budget come over reflecting those? Mr. Castillo: I cannot answer that. Council Chair Furfaro: That is the bottom line: Why the budget didn't come over reflecting the actions and the recommendations that we voted on? Ms. Yukimura: Mr. Chair? Council Chair Furfaro: No, I'm sorry. I want to hear the answer. Mr. Castillo: The answer to that would be the way that I read the resolution, the answer to that would be recognition of the economic times, recognition of what we were going through with the legislature, the recognition of doing the collective bargaining with HGEA. I don't want to speak for the salary commission, but that's what I read into here. Council Chair Furfaro: Thank you. That's what you read and I will hold that for Mr. Isobe because that is the bottom line here. We went from November to March 15 and nobody caught this and said, hey, we have an error, we need to amend the budget. Mr. Castillo: It could be looked at ... I always try to tend to be positive. An error for some, rubbish for some may be treasures for others. An error for one, it might be compassion for the people that don't have and that's the reason why there's no salary increase, so I don't know. Council Chair Furfaro: That's not the issue here, Al. Listen to me again, one more time. First of all I'm confirming the March 15 budget deadline. You had two opportunities to resubmit. The original draft from March 15, the action on this salary took place the previous November. COUNCIL MEETING -55- September 21, 2011 Mr. Castillo: Council Chair Furfaro: Mr. Castillo: Council Chair Furfaro: Mr. Castillo: I understand that. They had an opportunity to reforecast on May 1. Yes. Okay. I understand the timelines. Council Chair Furfaro: Let's talk not about the issues of compassion of which we need plenty of in our county right now with the economic time. Let's talk about a budget process of which I have real questions about our ability to show the maximum possible exposure for salaries and wages other than what was negotiated with the union based on the recommendations given to us from the salary commission and approved by this council. And that is what should have showed up in the March 15. Mr. Castillo: And I think, you know, because we have the managing director here that he would be able to answer those questions. Council Chair Furfaro: And I said I'm going to hold that question for either him or Mr. Isobe. But what you did with answering my questions, you got us to what the real issue is. The budget needs to be amended. Mr. Castillo: Okay, thank you. Council Chair Furfaro: Okay, let's see if we have other questions. Mr. Kuali`i: Chair, a Point of Personal Privilege. Before we go further with the questions, when the county attorney made his presentation, we were feverishly trying to take notes. He was reading off of several documents several groups of questions that was presented to him. I would like ... I think it would helpful to have a copy of all of that. Council Chair Furfaro: Could you submit the summary of your statements at a later date? Mr. Castillo: Council Chair. Mr. Kuali`i: Before ... I mean as we go forward. Mr. Castillo: Council Chair, if you don't mind, I don't want to violate any privileges. What I'll do is I'll just go down the line and not show the emails, but just... Council Chair Furfaro: Just the answers to the questions. Mr. Castillo: Answers to the questions. Council Chair Furfaro: Because I gave the courtesy here to the administration by summarizing all the changes which amounted to 16 of them. Mr. Kuali`i: Chair, what got confusing for me was that we have this documentation to you from Mona W. Clark, deputy county attorney, and there's three questions that are answered there, but it's not the questions that we asked at COUNCIL MEETING -56- September 21, 2011 the meeting two weeks ago. So it's nice to have this in writing, but it's not very helpful. What I need in writing is what the county attorney presented to us today: four questions here, five questions there, three questions there. I feverishly took the best notes I could, but... and he did give some short answers, but I got the yeses and the noes, but I didn't get the justifications and maybe he just wants to make his point again, but that's important to have, not just yes or no but what the justifications for those answers are. So it would be helpful. Council Chair Furfaro: Okay. I'll make that request on that note. Thank you very much, I'm going to ask a few questions of other members, but you stay right there. I'm trying to point out the importance of March 15, the importance, as I said two weeks ago, if we have a problem, let's amend the budget, okay? And then let's make sure that we honor all the other boards and commissions that have their own windows of opportunity to review the performance of those department heads. That, to me, is right. That is a reasonable assumption. Mr. Castillo: Yes because this body can reject the salary resolution for any reason. Council Chair Furfaro: We understand that. Mr. Castillo: But to say it is for this particular reason does set a precedent, which I already opined on. Council Chair Furfaro: And you didn't hear that from me. You heard from me getting to the real crux of the problem. Mr. Castillo: Yes, yes. Council Chair Furfaro: You have to have a budget amendment. Mr. Castillo: Understood. Council Chair Furfaro: Vice Chair Yukimura, then Mr. Bynum. Ms. Yukimura: First with respect to Councilmember Kuali`i's question, as far as my questions are concerned, I really expected the answers in writing because they were public. There was no privilege and I think we all wanted them. And I'm guessing that the others who sent emails would release any confidentiality and it would be very helpful since you've already publicly answered them and in many cases identified the person in the email, if we could get all of that in writing. Mr. Castillo: Okay. Ms. Yukimura: And Chair, as a matter of efficiency, if we could have either managing director Gary Heu or John Isobe up here also so that if the question is a non -legal question we can get an answer because we have a combination of both. And since the Chair is busy, I'm going to take the prerogative as Vice Chair. Chair, can we have either and/or Gary Heu and boards and commissions administrator John Isobe up there too? Council Chair Furfaro: At the same time? Ms. Yukimura: Yes, so that whatever the question may be... COUNCIL MEETING -57- September 21, 2011 Council Chair Furfaro: Ms. Yukimura: Council Chair Furfaro: Ms. Yukimura: Council Chair Furfaro: At the same time. If that's possible, I think it could be more efficient. Mr. Attorney... Yes, same time. At the same time, yes, so help with the chairs. Ms. Yukimura: And while they're coming up then, my question ... I guess I'll wait. So gentleman, if I can ask my questions now, we have a timeline and I'd like... Council Chair Furfaro: Since you had asked them, I have one summary question if you could yield the floor to me for one moment. Ms. Yukimura: Go ahead, sure. Council Chair Furfaro: Mr. Isobe, my point that I was making with the county attorney was that in fact it is between boards and commissions, Mr. Heu as the deputy mayor, and so forth that from the time we had approved in November and until the time we had a final budget, I feel you folks should have amended the budget then. That's what I'm saying. It is the responsibility of the mayor to have a reasonable idea, when he submits a budget, what he's planning to pay to the department heads. I don't need an answer. I just want to say that's the thrust of my discussion. Now, Vice Chair Yukimura. Ms. Yukimura: Yes, thank you. So in the 2010 resolution, it shows salaries for the mayor at $114,000 as of December 1, 2008. And that went into effect arguably on July 1. Now, the salary commission has proposed another resolution amending the December resolution showing that that $114,000 and similar increases all the way down through the department heads, but that would be deferred to July 1, 2013, except that the $114,000 the mayor has rejected or has he accepted that up till now? JOHN ISOBE, Boards and Commissions Administrator: It's (inaudible). Ms. Yukimura: It's correct till up to now. So he's proposing... okay, sorry. Let's see, the December resolution showed salary increases for the mayor and all department heads as caps as of July 1, 2011. But this amendment shows that to be deferred to July 1, 2013. And that is key to the negotiations and everything that happened in terms of our line employees, the fact that they're not getting any raises in these years and in fact have to pay more for their health coverage. And so as a policymaker, I agree with this policy and I want it to take effect. Now, there is some testimony that this resolution should be rejected. And if so, if it's rejected with the idea that we can do it in some other way, so my question for the county attorneys is is there another way to do this or is it pretty much if this 2010 resolution stands, then there's really no way to change that effect? County attorney, that's a legal question. Mr. Castillo: I'm sorry, when you were talking to the managing director, I was giving him the information... COUNCIL MEETING -58- September 21, 2011 Ms. Yukimura: what I was saying. I noticed, you guys weren't paying attention to Mr. Castillo: No, because you addressed him and so I was giving him the 2011 and 2010. I'm so sorry. Ms. Yukimura: Okay, let me repeat it again. The 2011 resolution attempts to effect a policy of delaying the pay raises for administrative heads to 2013... Mr. Castillo: Yes. Ms. Yukimura: ... instead of taking effect July 1 of this year and they are capped, so you have said that they actually haven't taken effect until the appointing authorities act. Mr. Castillo: Correct. Ms. Yukimura: Except as to the mayor. Mr. Castillo: Yes. Ms. Yukimura: But possibly if you could effect this 2011 resolution, then it would be a pay reduction for the mayor. Okay, now and I as a policymaker would like to effect this policy because I believe that's a fair policy especially given what our line employees have been asked to sacrifice. So my question is if we reject this today, is there another way because I believe that's been an assumption of a lot of people around this table, there's another way to effect this? And the reason I did not vote to reject it is because I thought maybe this salary resolution was the only way to effect it and if we could legally accept the resolution, then we would do so, we should do so. Mr. Castillo: Right now, we have the status quo. Ms. Yukimura: You have a what? Mr. Castillo: The status quo right now. Ms. Yukimura: Except as to the mayor. Mr. Castillo: Yeah, but the 2011 -1 attempts to continue the status quo. The question that you have is can we do this in another way? Ms. Yukimura: Yes, if we reject this 2011 resolution or if it is somehow defective and not legal, is there another way we can effect this policy? Mr. Castillo: I don't see a way that you can do it. Yeah, I don't see any way that you can do it and it's not because ... I'm not a proponent or an opponent... Ms. Yukimura: I'm asking you a legal question, so you don't have to be an opponent or a proponent. Mr. Castillo: Yeah, so I just wanted to say, but I don't see any. COUNCIL MEETING -59- September 21, 2011 Ms. Yukimura: Okay, then why don't you see any way? Okay, if it's our policy decision to reject or not reject, then we're okay and we just have to make that policy decision. If this is somehow illegal because the March 15 is a mandatory deadline and this missed the mandatory deadline, then we're out of any options. So then will you address the issue of whether March 15 is mandatory or not? Mr. Castillo: As your legal attorney, in writing and on the floor, I did tell you that I couldn't find any precedent; I couldn't find any language that specifically said that March 15 is an absolute deadline. I did explain to you my reasons why; I have it in writing. Ms. Yukimura: Okay. Mr. Castillo: And there are dangers if this council would recognize this as an absolute deadline. By doing so, it might put into play or it might create a risk of the propriety or impropriety of the past salaries. So that's the reason why my opinion is right now don't recognize March 15 as a deadline because you don't need to in rejecting this. Ms. Yukimura: Okay. So your legal conclusion is that March 15 is not a mandatory deadline, therefore, a salary resolution that's passed after that date is legal. Mr. Castillo: Yes, especially when the 2011 -1 resolution does not affect the budget. It allows for the status quo because you don't have to put in the budget moneys because nobody is going to ... only if you go back to 2010, then you create the requirement for... Ms. Yukimura: But that doesn't impact the legality of this issue. Sure, it's a bad consequence if you have ... I mean we'd be stuck if this is in effect; we'd have to go to the budget, this meaning the 2010 one. So if the 2011 is legally okay, then it's up to us as a policy matter to either reject it or to allow it to go into effect. Mr. Castillo: That's correct. Ms. Yukimura: Okay and if we don't allow it to go into effect, then the 2010 will be in effect. Well, the caps will be affected, the administrative appointing authorities will still be able to not give the raises, but the mayor's raise will be irreversible. And the council's decision...I mean the last time we didn't take the discretion to implement or to negate the salary increases and therefore, we gave the salary increases. And therefore, we have these salary variations that are difficult to deal with in terms of a formal salary policy. Council Chair Furfaro: I have to tell you, Councilwoman, I'd very much say that that responsibility to put the correct budgets in there is in fact ... I'm sorry Mr. Bynum, it's my committee and I'm just saying I have to say... Ms. Yukimura: Chair, I understand. Mr. Bynum: So listen, Chair, Point of Order. Is it okay for you to interject when somebody else has the floor but no other councilmembers can interject? COUNCIL MEETING -60- September 21, 2011 Council Chair Furfaro: You know, I think you have a good point there and I'll behave myself. Mr. Bynum: I just. Ms. Yukimura: So Chair, I agree with you, we still have budgetary powers. Nothing that's been said today negates that. I believe that the salary setting is through the salary resolution process. It's not through the budget and therefore, if we don't... the only way to impact what the salary caps will be is through the salary resolution process. Once we settle that, our policy as to what the caps should be, then we have to ... if it is our policy to set budgets at the cap level, then we should do that. I don't have any objections to that. But to me the matter before us today is more the issue of where do we want to set the salary caps and the mayor's salary because that's irreversible. The only way we can affect it is through... okay, so if I'm wrong, then maybe we can have more discussion about other ways that we can effect that? I'd like to know that. Council Chair Furfaro: Okay, Mr. Bynum. Mr. Bynum: Thank you. Council Chair Furfaro: And I promise not to correct you on anything, okay. Mr. Bynum: Thank you. I think holding the floor is important at least for me because I've thought about questions I want to ask. I have it outlined and when I lose that train of thought I often lose that train of thought and then I don't (inaudible). I often want to interject so badly and it's something where we have to constrain ourselves. So I'm going to start with budget. I think the Council Chair has made a policy statement that I tend to agree with that if the salary commission sets these caps, that's what we should budget for. I do think the council had the opportunity to do that when we reviewed the budget and I think going forward that that is a good policy statement, but it's really kind of separate in my mind from what we're here discussing today. But I do agree with it because right now, if I understand this correctly, the police commission with the existing salary could move in their next meeting to increase the chiefs salary and it wouldn't be in the budget. So the first is the budget. I think that's a good thing. Then I want to talk about March 15 because I said last week that I wasn't voting to reject this because I believed it was illegal because of the March 15 deadline because I didn't know that. I heard a member of the public state that. I heard councilmembers state that as a fact, but I didn't know that that was a fact because I've been here long enough to know that I need to wait for the analysis and indeed what you gave us and it's very important and it's also great that we released this today. I want to commend our current county attorney for not being afraid to have his legal opinions released and scrutinized by the public and the council, and to be in this public forum having this discussion. It's something that I longed for in my first two terms on this council. So that's an aside, thanks for letting me say that. But when I read this very closely, you're citing Hawaii State Supreme Court. I'd almost like to read this into the record because we don't make this an attachment to the minutes that the public could get on the internet next week. I think that's something we should look at. But I do want to read this quote from the Supreme Court: "The court noted that `seemingly absolute time periods for administrative action on the other hand are often considered mere guides for the conduct of business with dispatch and for orderly procedure.' The court stated that COUNCIL MEETING -61- September 21, 2011 statute requirements have generally been characterized as directory." And then you go on to give a much further analysis about when is "shall" absolute and when is it not and it has things like the negative (inaudible) concerning the exercise of authority no unjust results occur, there's no injurious effect to public rights or private interest, so I think this is a really thoughtful analysis, which helps me understand that March 15 deadline better. The conclusion is that hey, it's tied to the budget for budget purposes. This is a good idea. This is a standard we should achieve, but indeed the salary commission has modified this a number of times over the last few years and nobody has questioned whether they have that authority and Al went through, I looked for precedent, I looked for these things. And I've come to understand that that's the kind of legal analysis we need to say whether something is set in stone and we can stand by what appears to be or is there nuance because in law there's nuance. And so the March 15 ... you know it says to me that if we choose today to adopt this new resolution that it would be legal, that's consistent with your opinion. Is that correct? Ms. Clark: That's correct and I think... Mr. Chang: Mona, can you talk into the mike, please? Mr. Bynum: I heard "that's correct." Ms. Clark: I think the court made a large point of talking about cases /situations where you have litigants and contested cases, court cases, where dates are final because there are due process considerations involved. And when you have administrative actions, there aren't the due process considerations involved. You have management of the county at stake, but there's no individual rights that are involved. So that's a very different sort of situation. Mr. Bynum: So bearing that in mind, I just want to say how great it is to have this discussion finally on the council floor after four or five years because the public can get educated along with us about the nuances of the law and these aren't some secret documents that exist over in a corner. But then getting very specific, my understanding because clearly the administration has discretion to not, even though they have a cap, to not exercise that, okay. But they don't have that discretion with the fire, police, personnel, and planning, right. And those caps are higher than what the administration ... currently those commissions can do this. So I think that the intent of the salary commission was to say, you know what, let's not allow that latitude in this era, in this fiscal climate. Let's delay any of those considerations until 2013, not this year, but till 2013, and I agree with Councilmember Yukimura that that's a good policy statement for this council to endorse, to say right now when we're negotiating cuts in pay or level pay and increased medical benefits for our employees, we shouldn't be talking about giving the highest paid people in the county increases. So now, however, that's kind of difficult with the mayor because you've opined that basically in my view, the mayor should be taking that new increase that was approved in 2010. Ms. Clark: And I think you have an opportunity with the new resolution to correct that. Mr. Bynum: To correct that and that was part of the motivation for the mayor to approach the commission. Correct? COUNCIL MEETING -62- September 21, 2011 Ms. Clark: That's correct and I think the mayor is the only one that really has standing to contest whether he's paid the higher amount and if he wants to forego that. There's really no one else in the county that has standing to contest that. Mr. Bynum: Right, he's in a unique situation. Ms. Clark: That's correct. Mr. Bynum: And there may be another section of the charter that addresses that and I won't go into that. Ms. Clark: Well, the 7.03 addresses that (inaudible). Mr. Bynum: Because we'll get into nuance, but not everyone is getting pay reductions because some high paid department heads did get increases last year and are actually making more than the mayor right now, but I won't go there right now either because that's not in this resolution. So basically, if we leave what's in place, some of these folks could get increases if their appointing authorities decide to and the mayor's situation is kind of unresolved or not real clear. And so those, I assume, are the reasons that the mayor said to the salary commission, will you bring clarity to this. I want there to be clarity that nobody's getting a raise until at least 2013 and maybe not then, right. But we have time to deal with that. Personally, I wish the resolution would have said in 2013 they're going to stay the same and if the economy gets better, then... But either way, basically the real impact of rejecting this is to leave open the possibility of raises and to leave the mayor's situation cloudy. Accepting the resolution makes it clear that none of these people will get increases until at least 2013 and it will clarify the mayor's situation. Have I got that right? Ms. Clark: That's correct. Mr. Bynum: Okay, so the last thing I want to say at this point is what the general public sees is the headline, the thing is rejected. Good, right? And maybe they'll see a headline "Council Sticks By Rejection" or they'll see "Council Changes Its Mind and Approves the Salary Resolution" and a bunch of people out there are going to say, oh man, what are they doing? They approved this without understanding what we just went (inaudible), that approving this new salary resolution, the effect of it is keeping the salaries at their current level and not allowing any circumstance that they could be raised short of another resolution from the salary commission. And so I hope the paper gets that nuance when they write this that we don't see a headline because given this legal opinion, the discussion we're having now, I'm inclined to accept the salary resolution. I want to hear more discussion, but why would we say yeah, go ahead commissions, give the raises if you like when we have an opportunity to agree with the mayor and the salary commission and say no, let's be clear, these increases are not going to occur right now; they're going to have to wait. So I hope whatever the vote is that that choice is what's clear. Now we've gone into budget stuff, I agree with the Chair. Going forward I think whatever that cap is that's what we should budget because we just finished the fiscal year with a $16 million variance. We didn't spend $16 million that we appropriated, right. And so it's common for us to ... our budget versus actual is very COUNCIL MEETING -63- September 21, 2011 different. So putting that, agreeing with the Chair in saying we should budget according to the cap, I think is a good practice because there are many instances where we don't spend all of the authorized money, right? Ms. Clark: I think that's right. But I think that it's important to note that budgeting that way is a policy decision. It's not mandated. Mr. Bynum: Right and I kind of agree with the chair that that would be good policy and going forward we can apply that and see if that's the majority opinion of the council. But this really has been a long and convoluted... but some of these changes we made a big point of making 13 changes or something. Some of these changes are things that I think the community and we all agreed with. Let's establish a performance criteria to allow these caps to go or these raises to go. I think generally people agree with that. And this is a fairly new process, the charter happened, this was the first one. I think we've learned that in retrospect and I did this whole summary last week, so I won't do it again, that I applaud the work of the salary commission. They have said, hey, we want to pay our department heads a competitive rate so we track quality and retain quality people. We want to address that over a period of years and yeah, we think it's a good idea to have some performance evaluation criteria as a criteria for getting these high salaries. And so thanks for letting me ask these questions and get the clarity. I think Leo's still here, so Leo... anyway, thanks. Council Chair Furfaro: Okay, before I recognize Mr. Rapozo, I just want to make sure I make my point again to this body right here. The budget process is a philosophy that says here are our reasonable expenses going forward. Mr. Heu, I do not intend every year to be adding up salaries four months after we've passed a resolution to make sure the number is correct. That's not my intent, okay. I still think you're going to need to come in for an amendment here if some of these numbers are incorrect because as Mr. Bynum had reconfirmed with me, some of these reviews are subject to the boards and commissions, not the numbers that you folks put in the budget and therefore, we should be putting the caps in the budget. Mr. Rapozo, you have the floor. Mr. Rapozo: I have a question and it's for Al. Al, you mentioned earlier, you cautioned us about basically going against your opinion and I guess that concerns me because I was always told here on the council that we have legislative immunity and I want you to tell me what my immunity is because I don't think that because I disagree with you and I get sued that the county's going to say, sorry, Mel, we're not going to represent you. I don't think that's an accurate statement. I think as a legislator and I make a decision here based in good faith, I believe that the county will represent me and I'm just kind of concerned about what you said earlier. Mr. Castillo: Well, yeah, and that's why I said may. I didn't tell you that this will happen because if ..I just wanted to caution you that in the realm of possibilities I cannot guarantee you what will happen tomorrow. I don't have a crystal ball. Mr. Rapozo: I understand, but I think I'm more interested in what legislative immunity we have because again, I've been led to believe that unless we do something really drastic ... but the mere fact that we disagree with the county attorney would not rise to the level that I'm on my own. Mr. Castillo: No, no. COUNCIL MEETING -64- September 21, 2011 Mr. Rapozo: That's how it came across. I just want to let you know. Maybe others got it differently, but that's how I -got it and I want to make sure that I understand, eh, as a legislator, I'm protected by some level of immunity and just because I disagree with you doesn't mean I'm on my own. Mr. Castillo: No, I've worked with you for many years. Mr. Rapozo: I just got a little worried there. Mr. Castillo: Yeah and all I'm saying is that anytime that you go against your legal counsel's advice, there is that potential. Now, I cannot anticipate and guess how any challenge will come through, so that would be speculation on my part. But it is my obligation as your attorney to give you that type of warning because if I didn't, then I wouldn't be doing my job just to be cautious, and then if you really wanted to go in -depth about legislative immunity, when it applies, when it doesn't apply, then you do have legal analysts working for you. We could also look more at that, but I just wanted to throw it out there that just be cautious, that's all. Mr. Rapozo: Got it, thank you. Council Chair Furfaro: Mr. Rapozo, I would like to add to the county attorney, I think you need to know I too did not appreciate that comment that was given. I thought it was, perhaps, inappropriate. And for Mr. Heu, my earlier comment about having to add to the budget was a statement. I didn't pose a question for you. So I'm sorry if you felt you wanted to respond, but I just wanted to let you know I don't plan to add every line item in the budget in the future. GARY HEU, Managing Director: And I appreciate that, Chair, and I know the issue of what was represented in the budget or what wasn't is a concern for you. I think we've heard that message as we've gone through the afternoon. I just wanted to say on the record that there are a number of things that play in terms of why we saw the budget on March 15 the way we did relative to the salaries. And probably the most ... part of the guidance that we were using relative to submittal of the budget was the actual resolution that is currently in place right now, which is the 2010 resolution by the salary commission. And in Section 2 it states that the mayor with the approval of the county council is hereby authorized through the county's annual operating budget to limit the funding and thereby reduce the salary for any non - elected officer or employee to an amount lower than the figure established for the position in this resolution. Now subsequent to going through the budget process, it was determined that in fact that was an improper delegation of authority through this resolution. And so that's why you are in fact seeing resolution 2011 before you to in fact correct in part that section. So it wasn't that we were trying to ignore the law or the resolution or the intent or desire of the salary commission. It was that we thought we were operating on the correct assumption that what was in the resolution provided adequate guidance and authority for us to submit a budget that we did on March 15. Council Chair Furfaro: And I think you got my point, okay. I'm not arguing any of the points. What Mona had read about the courts, quite frankly I don't intend to entertain amendments during the year every time we have a budget change. I would like us to have a budget policy that shows the exposed liability whether we use it or not, whether we cap it or not. For me, the liability needs to be part of the assumptions in the budget. So thank you, Mr. Heu. Mr. Chang, did you have something? COUNCIL MEETING -65- September 21, 2011 Mr. Chang: No, no. Council Chair Furfaro: Nothing? Okay, Councilwoman Nakamura? No? Councilmembers? Okay. Thank you to the... Mr. Kuali`i: Mr. Chair? Council Chair Furfaro: Oh, you did have something? Okay. Mr. Kuali`i: I just ... you know there's this nice like a page worth, maybe two pages worth of what "shall" means and I just think that it's good that you've found all of this and educated us on what's legal and what's not legal, but with the charter stated as it is, is it right? Council Chair Furfaro: Before they answer that question, he's waving at me for a second time. They have to stop to change the tape. (Inaudible.) Council Chair Furfaro: Okay, Mr. Kuali`i, we're back to you. Mr. Kuali`i: Is it what's in the best interest of the people? Is it what's right? Is it what's appropriate for how we serve the people and how we work together and how we formulate this budget and how we get to the place that when the budget is adopted that it all works together? Ms. Clark: (Inaudible) means possible, but I think that the Supreme Court of the State of Hawaii has the best interpretation of when "shall" is mandatory and when it is directory, and I think that it is in line with the Supreme Court's interpretation of when it can be directory... Mr. Kuali`i: But what do you think was intended when it was worded this way in the charter? Ms. Clark: I think that there's some problems... Mr. Kuali`i: That if you can do it by March 15, do it. Why didn't they just use the word may? Ms. Clark: I think it's a goal to be strived for, but I would say that there are problems... Mr. Kuali`i: So don't we want to meet our goals? Ms. Clark: Let me ... could I finish my statement? Mr. Kuali`i: Mm -hm. Ms. Clark: There's a problem with the way that it's worded and it says you could submit it before March 15. So for example, you submit the resolution on January 1, it becomes effective 60 days later, March 1, and that's the date it's effective. It's effective in the current fiscal year, not the next fiscal year. It's not drafted in the best way. It could be revised to be much more clear about what is to happen, whether there are any consequences. And the Supreme Court discusses it in its decision. What are the consequences of not meeting the deadline? COUNCIL MEETING -66- September 21, 2011 And they look to whether the statute or the ordinance states consequences. And they're not stated here. And for that reason, I do believe that it's directory. And you could go back and change it. Mr. Kuali`i: What should it be? So, you're saying the date should not be March 15. Ms. Clark: I'm saying that that's a guideline. But obviously if it's going to be used by the administration in putting together its budget, being on March 15 is not optimal. It's a guideline. Mr. Kuali`i: I guess you just still did all the legal thing and that's expected because you're an attorney. But I guess what I was saying is for operational... Mr. Castillo: Excuse me, Councilmember Kuali`i. I object to that. We give you the best possible legal advice. Whether or not you like it, it's your prerogative. But to come back at us and treat us in that manner, I take offense to that. Mr. Kuali`i: Okay, I just thought that the county charter was a legal document and then if it put a date in there of March 15 and with the word shall that it would be, but you're saying legally not. So let's clean up the county charter and make it say what it needs to say so that the average citizen can understand it to be what it is. That's it for now. Council Chair Furfaro: Before we break here, I do want to share that I'm looking for the most efficient process and one of the things that I want to make sure you also understand, the budget process has a Phase II to it. It's called developing the revenues, the tax rates and so forth. And that's why this floating date really concerns me. There is a clear purpose to understand our expense cycle and then work on our revenue cycle, of which 80% comes from this council setting the property tax piece. So it's very, very much a moving schedule of deadlines and I just want us to appreciate that. Now, on that note, we are going to be able to take a tape break here, if we can. We're going to take a caption break at the same time. And when we come back, I just want to ask one real question about the salary commission, did we ask these questions of the attorneys that sat on the commission and then I will give Councilwoman Nakamura the floor. We're on a 10- minute caption break. There being no objections, the meeting was recessed at 4:59 p.m. The meeting was called back to order at 5:21 p.m., and proceeded as follows: Council Chair Furfaro: Okay, we're back in session. I do have a housekeeping note later tonight. We are intended to have two executive sessions. One, as you know, is going to be deferred for the number reallocation to the appropriate items that's in ES -500, and then ES -498, I'm going to ask to defer that until October 5 because there are people who have some conflict with schedules, okay. Now when we went for a break, Mr. Isobe came up to me and indicated he needed to depart, but I think Mr. Heu is still here. Mr. Heu is still here? I'd like to get him back up. I think after this item then we've covered all the agenda items for COUNCIL MEETING -67- September 21, 2011 today. He was double- booked with another group at 6 o'clock. Mr. Heu and the county attorney, I'd like you gentlemen to come up. I'm going to recognize you, Nadine. Okay, I'm going to recognize you, Mr. Rapozo. There being no objections, the rules were suspended. Mr. Rapozo: Yeah, I had hoped to ask Mr. Isobe some questions, but apparently he had to leave. So I guess I'm trying to understand more of the process of... and that's why I had asked for the salary commission to be here and they're not here either. I guess while you're here, what is the process of the salary commission, Gary, if you know? As I follow the minutes of the meetings which I could get off of the internet, it seemed that this all got initiated from a letter from the mayor basically asking the salary commission to correct this resolution and then the meeting ensued and I guess what concerns me is that the actual resolution was drafted by Mr. Isobe. That's what the minutes reflect and I'm not comfortable with that. I think it's a concern because as all commissions are they are supposedly independent and it's a concern that in fact in this specific case the resolution was drafted by the boards and commissions administrator, which I don't believe that's the administrator's job, and more so because in that resolution was an increase of his salary. So I think there are some concerns and I guess what I want to hear from you is how influential is the administration or the boards and commissions director on the activities of the commission? And if you cannot answer, Gary, that's fine. And that's why I wanted John here. I wish I had known he would have left, I would have asked to have him come up earlier. And is it in your opinion legitimate for the boards and commissions administrator to be an active participant in the commission's duties? Mr. Heu: Well, I think, again, I'll let the attorneys get into what's provided for in the charter and that sort of thing. But as a practical matter, John Isobe and his staff provide support to all the various boards and commissions. John assists in writing communications when requested by the commissioners that express their desires, their intents. In the same way, I believe he was asked to provide them a draft resolution which in essence laid out what their intent was. My understanding, I had a brief discussion with John regarding the draft resolution and he said, in fact they did go in and make amendments to the draft that had been originally developed by Mr. Isobe based on input from the commission. So if you were to go back and track the original draft that John provided them with what was actually transmitted to this body, you would see that there were differences based on discussions that they had. Mr. Rapozo: Not very much. I mean they may have been added because of Councilmember Yukimura's suggestion about the amendment. There was a clarification on that. And there may have been a few, but I guess my concern and it's really that's a decision that your guys' side whether or not you're going to allow that to happen, but I'm having a real serious concern because as I follow the minutes of both July 26 and the subsequent meeting in which the resolution was adopted, it seems that it just flowed from the mayor's letter to the resolution done by Mr. Isobe. There was a little bit of discussion and there were some, mostly clarifications, and then a vote was taken. And I just don't know if that was what the intent of the salary commission was. If that's going to be an acceptable activity, then I have to live with it, but I just figured that the commission should act independently and in fact if they have a resolution to be drafted up that, in fact, should... the assistance, in my opinion in that case, should be done by the county attorney's office. Ms. Clark: (Inaudible.) COUNCIL MEETING -68- September 21, 2011 Mr. Heu: Just one second before the deputy jumps in there. I think you referred to the mayor's letter which was the July 15 letter and I guess the way we view it is that the mayor, just like a councilmember, can provide input to any board and commission relative to a testimony being provided before that commission whether it's appearing and providing verbal testimony at a planning commission meeting or whether it's providing a written communication. And I think that's what the mayor did based on his knowledge of certain things that were going on relative to things that maybe needed to be taken a look at. But again, it merely expressed his desire, his input for consideration by that independent body. Mr. Rapozo: My concern is not with the letter from the mayor. That is not my concern at all. The letter from the mayor is very appropriate in my opinion. It's not the letter from the mayor of July 15. It's after the mayor's letter got in, then the concerning parts occur for me because shortly after that the salary commission meets and it's interesting how they just ask Mr. Isobe who's the boards and commissions administrator, who as I read the charter duties of the boards and commissions administrator, I don't see that in there that his duty is to actually... it's almost like in this case he acted as the 8th member of that commission and I think that is the troubling part for me, not the communication of the mayor. I think that was appropriate. And the bigger fact and concern for me is that this resolution in fact adds in a salary increase for Mr. Isobe. I think the appearance is a concern. It's a salary freeze for everybody else, but for the boards and commissions administrator it's a salary increase. And it's ironic that the person that's going to get the salary increase is the person that drafted the resolution. And I think in this whole county in boards and commissions with the county attorney staff, we probably could have found someone else to assist in drafting that resolution and not Mr. Isobe. And again, I believe it's outside the scope of his charter duties, but again, I'll defer to that apparently to you guys, but... Ms. Clark: I was just going to comment that if you look at Charter Section 7.06 Boards and Commissions Administrator, it says "The administrator shall assist in providing administrative and operational support to the various county boards and commissions." And I think the very fact that they don't have a staff places them in that... Mr. Rapozo: I'm sorry, try read that again. Ms. Clark: It's 7.06 Boards and Commissions Administrator. Mr. Rapozo: Okay, try read. Ms. Clark: Part B just says, "The administrator shall assist in providing administrative and operational support." Mr. Rapozo: Okay, you're going to read more? Ms. Clark: Well, it goes through and (inaudible). Mr. Rapozo: It further clarifies... Ms. Clark: It provides additional (inaudible). Mr. Rapozo: If you stop there, then it seems like it's okay. But if you read further down... that'll be on my PowerPoint, so we don't have to discuss that now. But it encompasses a whole bunch of things. COUNCIL MEETING -69- September 21, 2011 Ms. Clark: to" (inaudible).. But it does say, "it shall include but not be limited Mr. Rapozo: I understand and that's why I'm asking Gary if that is going to be the direction of the administration that in fact we're going to allow the administrator to actually actively participate in the commission, then maybe I have to pursue a charter amendment resolution because I don't think that's right. I think the commission needs to be operating independently with no ... other than clerical support, communication support. I mean as I read this charter duty description, it basically said if the commissions need assistance in getting information from departments, if they're working on a salary resolution that they need information from finance or from the police department and they're having problems, they can go to administrator and he can assist. But I don't believe the intent, I don't think the people voted for a boards and commissions administrator that was going to be an influence on the commission. I think that is where I'm kind of concerned right now. But, again, it's a call that you guys will make. I'm just voicing my concerns because I think that we really take away... and if you read these minutes you can really see that the commission is really not as independent and they're very strongly influenced by the administration and I think that shouldn't be the case. Mr. Castillo: You know the charter does call for the assistance of the administrator and to what extent was this assistance? Was this assistance to the point where there was some impropriety? And that is... this is one of the reasons why if there's any complaint, then make a complaint to the proper forum. But what I'd like to add too is that Mr. Charlie King is the chairperson for the salary commission and the way it worked is... It's good that you have the minutes and it's good that you have everything open there and sunshined. And when you read that, it does look like, hey, John, Mr. Isobe, go write this up for us so that we can have something to massage, and that is exactly what happened here, where you have someone doing something at the request of the chair and then you let the chair and the rest of the salary commission members look at it, discuss it, tweak it, and then it becomes the work of the commission. So I cannot tell you whether or not there was any impropriety done here. If you do have a question about the propriety, then do the proper questioning, but I cannot speak on behalf of Mr. King. It might have been beneficial for Mr. King to be here because I'm pretty sure that John Isobe did not tell Mr. King what to do. Mr. Rapozo: That's why I had requested the salary commission here. I was hoping to have ... the problem is we cannot defer this. Because of timing, there's an issue with the timing. With the motion to reconsider, this original motion actually hangs in limbo and nothing happens and the time keeps moving. So we don't have the luxury of deferring this, so we basically typically, we're going to have to do a decision and make a vote today and that's unfortunate, but. Mr. Castillo: And I'm sorry, Councilmember Rapozo, and the problem with having a member of the commission here is that member, whoever it may be, unless you had in advance written questions, cannot speak for the board, would only be able to speak on a limited basis. Whether or not the limited basis would have been sufficient for this body, I cannot speculate. Mr. Rapozo: Yeah, thank you. Council Chair Furfaro: Okay, I believe Mr. Bynum had a question. COUNCIL MEETING -70- September 21, 2011 Mr. Bynum: I just want some clarification. I mean my understanding that we created boards and commissions to be the staff for the boards and commissions and I've found Mr. Isobe to be a competent administrator, but I think Barbara, Mercedes, and Pua ... I mean who would write this resolution other than staff? I don't think we ... I know I don't write a resolution. I meet with our staff and I say, here's my intent, here's what I want, and then I get a draft, and I read it. Isn't it the same with boards and commissions? Mr. Castillo: To me, I can only answer that is that would be my understanding. If something else happened, I cannot speculate, but that is the normal course of conduct. So like I said if somebody here wants to launch an investigation, then you have every right to do so. Mr. Bynum: Yeah, I know Mr. King pretty well and I don't think anybody will say that he's not an independent guy that wasn't going to assert himself. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: Oh, no. Council Chair Furfaro: No? Okay. Mr. Rapozo. Mr. Rapozo: I just want to say that I'm not insinuating or accusing anyone of wrongdoing. I did say earlier today that I will be submitting the minutes of this proceeding, both items, to Ethics for some review. But I'm not accusing anyone, please don't get me wrong. I know Mr. King. I know Mr. Isobe. I'm just asking if in fact that was going to be a standard policy of the administration then I would be interested in making sure the charter's tight enough so that we eliminate that perception that something may have been amiss. That's all I'm saying. Mr. Castillo: And you have every right to do so. Mr. Rapozo: Thank you. Council Chair Furfaro: Councilwoman Nakamura. Ms. Nakamura: I just wanted to say that I agree with the intent of this resolution, I do agree with the intent. In these economic times when the private sector is suffering, state workers are on furlough, this is not the time to be increasing the salaries of our appointed officials. The problem that I have is just with the process, the legality of the process. And I just have to respectfully disagree with some of the opinions raised by the county attorney's office and it's just based on my personal insight and discussions with someone who was on the charter commission at the time that was very committed to this charter amendment dealing with the salaries of county employees. And so I think in my discussions with this person, it became very clear that he and the intent of the group at the time was to tie it into this March 15 deadline and there may not... it may not be in writing, you may not have that in front of you, but this is just in personal conversations with this person. So, I guess my question is that while I agree with the intent of what you're trying to accomplish here —that makes a lot of sense -would a long -term fix to this situation to prevent this in the future would be to have a charter amendment that allows the salary commission to amend the resolution at other times during the year following the adoption of the budget? COUNCIL MEETING -71- September 21, 2011 Mr. Castillo: Two things that come to me from your statement and your questions, maybe three. The first is I do not take offense if you don't agree with the opinion because we try to give you the best opinion that we can. We had two weeks and I didn't know that I had other resource persons to go to because I'm looking for writings. Now that I have a lead as far as who may be I can contact, then that might be beneficial to a change. I terms of a charter amendment, there are at least two trains of thought. One is that the charter is near and dear to us. It's like the Bible; don't touch it. The other end of the spectrum is we should change the charter through the changing times. So it is your prerogative as a legislator. Ms. Nakamura: Okay and if we reject the increases, excuse me, the decreases, then a commission, let's say the planning commission or the police commission has the prerogative to increase or maintain the status quo of the salary. So do we need to change the budget line item? Mr. Castillo: You would need to change the budget to account for the increases. Ms. Nakamura: Whether or not... Mr. Castillo: Yes. Ms. Nakamura: Whether or not the commission chooses to? Ms. Clark: No, I don't think so. I think that's a policy call when... Mr. Chang: Mona, sorry, can you speak in the mike, please. Ms. Clark: I apologize. I think it's a policy call whether you want to include it in the budget. I think once it's actually allocated by the board or the commission and the salary is increased, at that point you would have to have a budget amendment. Ms. Nakamura: So a commission has the prerogative, if we reject, to keep it the same or increase, but they would need to come up with... if they choose to increase the salary and I would question their judgment if they did, but if they did choose to, couldn't they take that additional increase out of their existing budget? Ms. Clark: That's quite possible, yes. Ms. Nakamura: And so they would not necessarily have to come to the council. Ms. Clark: That's correct. Ms. Nakamura: Is that correct? Ms. Clark: If there was sufficient funds in the budget, they wouldn't have to come to you. COUNCIL MEETING -72- September 21, 2011 Ms. Nakamura: Okay, because many departments, as Councilmember Bynum has mentioned, do not spend all the funds in their budget. So they could reallocate within their budget line item. Ms. Clark: Yes. Ms. Nakamura: Okay, thank you very much. Council Chair Furfaro: Okay, well we got that question answered, but then it's going to lead to another question next budget round. If you have things in your budget that you are going to reallocate from a specific item to a salary line, boy, I'm going to raise a few questions about your budget mechanics. Just wanted to share that with you. Seventy percent of our expenses are related to payroll and benefits, and we have very specific staffing guides. If we're going to talk about removing items or transferring items and so forth for PT &E and salaries, then I would. caution them on that, but it was an outstanding question. Any other questions for the group? Mr. Kuali`i? Mr. Kuali`i: If the county attorney could repeat one question and answer that he gave a while ago and that was the second question from Councilmember Yukimura which was, can the salary caps resolution be amended subsequently after it has been fully vetted and gone through the process. I believe the county attorney said no, but I didn't get what else he said after no. Ms. Clark: I think simply that you're not going through an amendment process, you're coming up with a new resolution and you can have a new resolution and that's what 2011 is; it's a new resolution. Mr. Castillo: And I believe, if my memory serves me right, I know it's almost 6 o'clock, that I did say the operative word was amend. Mr. Kuali`i: Okay, so this is not an amendment; it's a new resolution that is amending an old resolution that the old one was in November, which if it's in November of a particular year, we can assume it's for the coming year's budget. So it got approved by the council in November and then it came through the whole budget process. Whether it was budgeted for or not, it took effect on July 1 and now we're making a new resolution in a new year to amend an old resolution that was already in place. Does that seem correct? Does that seem like the thing we should be doing? Are we not in a new year where we're making a new resolution for the next year? Otherwise, you can call it a new resolution, but all it is is amending the old resolution to fix what you feel needs fixing because it appears that you want all of the salary decisions to be the decisions of the salary commission confirmed by the council rather than the decision that was already made for this fiscal year in November not meet with what the mayor's wishes are, which is all our wishes because this argument about the economy, there's no argument there. We all agree that it wouldn't be right for the highest paid county employees to get any kind of raises when the rest of the staff is taking zero pay increases and paying more for their health benefits, 60% now instead of 50. I forgot what my question was, but you hear what I'm saying, so your response to that? Council Chair Furfaro: It's late, it's late. Mr. Castillo: Councilmember Kuali`i, could you please articulate your question because in there you had posed a question, scenarios, statements and comments. So what is exactly your question, please? COUNCIL MEETING -73- September 21, 2011 Mr. Kuali`i: Yeah, okay, I'll simplify. It gets back to you saying that you cannot amend the resolution after it has been fully vetted, you know the resolution that was passed in November. It was passed in November; you're not amending that. You're making a new resolution that amends that. That new resolution is in this new fiscal year. That old resolution was intended, obviously, because it had a July 1 implementation. So even though you're calling it a new resolution, all you're doing with this new resolution is amending the old resolution so that you can defer its implementation from July 1, 2011 to July 1, 2013. Even though technically that might be legal, do you think that's appropriate and that's the right thing to be doing in the process that we go through with budget and with serving the people? Mr. Castillo: Taking and answering your question and your proposition or your supposition, what you've done is basically describe what has happened from 2007 to the present. So whether or not you've amended or changed and whatever you termed it, the original question was whether or not it can be amended, and the answer to that is because the operative word was amended, 2011 -1 is not an amendment. It is a new resolution that would correct the older resolution. Mr. Kuali`i: The last thing, so isn't the new resolution in the new year for the coming deadline of March 15 in 2012. Ms. Yukimura: Can I chime in because this is my question? I think... the way I was asking the question... Council Chair Furfaro: Thank you for asking Council Vice Chair. Ms. Yukimura: Oh, I'm sorry. Council Chair Furfaro: No, no, no, I mean we had a lot of that earlier and then I was reminded when I did it once, but thank you for asking. Ms. Yukimura: May I? Thank you. When I asked the question, I was asking whether basically resolution 2011 was legal because you are amending the first resolution via the vehicle of the second resolution. So actually if it's like that, can a salary caps resolution be amended by a subsequent resolution, now after it has been fully vetted? What I meant by that was after the date came July 1 and we had gone through the process. Your answer might have been... actually is yes and that's why we're confused when you said no to this question, but maybe you misunderstood the asking of the question or the wording of the question. Ms. Clark: Whether you're talking about an amendment or a new resolution, the end result is a change. (Inaudible.) Ms. Yukimura: And you can do it if you do it through the right process and you're saying that a subsequent resolution even though it's after March 15 is okay legally based on your legal research, which is hard for a layperson to understand that "shall be done by March 15" is actually "may be done by March 15." And yet the practical results, if we're going to try to amend this charter provision is that it would be good to allow for the union negotiations to happen before the salary resolution has to be submitted because they're related to each other. And what the administration did, taking advantage of this directory rather than mandatory concept, was to allow the collective bargaining process to be completed before you made your recommendations as to the executive salaries and that has a logic to it that I think we all see. So if we're going to amend this to COUNCIL MEETING -74- September 21, 2011 clarify it and if we should choose to make a mandatory deadline and there are ways to do that, as you said, we need to take into account this process of union negotiations and budget so that we can make it all work better. Okay, thank you. Council Chair Furfaro: Thank you, Vice Chair. You know, I'm going to share something with you. There's nothing that says the salary commission needs to evaluate the bargaining unit increases and contracts in part of their recommendation. That responsibility is the administration's when they know they can pay under the amount recommended by the salary commission depending on the economic condition at the time. Show me somewhere that this whole process is tied to that and I'll reconsider my comment. The salary commission's responsibility is about getting good people, retaining them, having them do performance review and being measured against the performance review without paying them over the recommended ceiling. The mayor can do that. The council approves the amount, it should be somewhat reflected in the resolution and then reflected in the budget. You know, I appreciate you folks really giving us the legal overview, but I think what this council deals with, and I disagree about the March 15 date, I think that's a critical date because as I said, we need to get to a point that we also are responsible to having sufficient funds to cover the expected pieces. So I'm coming from a standpoint of hey, we need a clear policy statement. What you're giving to me is legal opinions. In managing a corporation, we need to have clear policy decisions for this body which has the responsibility for this. So I appreciate your comments, but for me I want to clarify it. There's legal opinions and then there's policy statements, and for us to meet our expectations in the budgets scenario, we need to have clear statements about policy and we get dates from the charter commission that says, hey, we should have a review by this date. And we have salary commission recommendations that said, salaries for these positions should not exceed these numbers. The interpretation of a not -to- exceed number to me is the mayor can clearly make a judgment about paying under that number. The boards and commissions that (inaudible) can clearly make a decision to pay under that number. That's their policy of which we shouldn't have any influence on. But anyway, I just wanted to share my concern because on the flipside I understand where you're coming from. There is zero increases for some of our bargaining unit people and I also want to recognize that we worked hard with the administration to make sure that we had a different approach to any furloughs or anything because we value the fulltime status of our people. So I'm taking this as you're coming from hey, there's zero recommendations for them, but please do not say that that has influence over the exercise of what the salary commission is going to do. They determine the caps. The mayor can submit in hiring, in processing, in reviewing people that he could pay under those caps. Any other questions here? Thank you for the legal interpretation. Thank you for listening to me make a policy statement. Okay, I will excuse you folks and see if there's anyone else that would like to testify on this. Prosecutor Iseri - Carvalho. SHAYLENE ISERI- CARVALHO, Prosecuting Attorney: I guess it's good evening, Chair. Thank you for the opportunity to speak, Shaylene Iseri - Carvalho, prosecuting attorney. I had spoken here a week ago because I was concerned with, again, the process as has been indicated by several councilmembers. We had requested an opportunity to receive all of the agenda items from the salary commission as well as the minutes that discussed this issue. We just received it. As we all know we've been busy with trying to get the Domestic Violence Awareness activities underway because I am actually leaving tomorrow for. the Hawaii State Law Enforcement Officers conference on the Big Island, where the four police chiefs and the four prosecutors with the US Attorneys do an annual conference. And that's an important one for the county, especially with APEC coming on in COUNCIL MEETING -75- September 21, 2011 November. But this is also an important issue. The concern I have is I, again, in talking about the flawed process, we were not notified with respect to this item. I know Mr. Isobe had commented... there was a blanket email that said if you want to come to testify at the salary commission, do. But I, of course, was under the correct impression as I believe today sitting here that March 15 was the deadline to effect any kind of salaries. And given the circumstances of us being in the middle of a murder in the first degree trial, it did not seem important to testify at the salary commission because it would not have affected not necessarily my salary but also every other deputy that was present and working under my administration. I testified extensively in the early part of 2009 because it was very important that the prosecutor's office retain and have the ability to provide salaries of experienced employees in light of the fact that it is a statistic across the country that when the economy goes down, crime increases astronomically. There had not been an increase in employees at the prosecutor's office, attorneys for over a decade, despite the fact that there has been astronomical increases every year since I have been there and I had shown the increases at both budgets that I had testified at previously. In effect, my concern really is with Section 2 and whatever the decision of this council is. I would ask that that section be totally eliminated because what it does is that for my employees it definitely sets a tone that for four years despite the fact that there may be a great surge in the economy or not, or in the private sector if there are opportunities that they will not see a change and increase in salaries, and I ask myself the question, why is it so important for this resolution to affect the prosecuting attorney's office four years earlier before it even takes effect and that is definitely a concern. I have absolutely no indication from the minutes when it was very clear that they knew that we had lobbied extensively with the past salary commission. They had received absolutely no input, which is the concern that they raised at the time to Mr. Isobe and asked, "Shouldn't we get input from the prosecutor's office ?" "Well I guess I can ask them if you guys want for the next meeting." Mr. Nakamura: Three minutes, Council Chair. Ms.Iseri- Carvalho: Well, then again that's when we got a blanket statement. There is definitely an indication that there was some inequity that was going on despite the fact that there was a unilateral decision by the mayor to withhold the increases that the salary commission had recommended. And when we look at the minutes of August 5, 2011 from the salary commission, Mr. Dahle asked, "There is no law or policy that says that this inversion..." And they were discussing the fact that there were some elected and appointed officials that were making more money than the mayor because the mayor unilaterally decided that he was not going to take his 7% increase. I think that's illegal. I think it usurps the power of the salary commission. I think that the mayor must take the salary that is given by the salary commission. He can decide to donate it back if he wants to to the county, but the proper process to recognize the validity and legitimacy of an independent salary commission means that he needs to do what the salary commission says because that was a commission that was specifically created by charter and it was to take out the politics in it so that none of us, whether it's the county council, the prosecutor's office, or the mayor, has the ability to overstep its authority in determining what is the appropriate salary. And so what, in effect, the mayor did was really, to me, usurp the power of the salary commission by deciding that he was unilaterally doing something that was, in my opinion, illegal for him to do. Now, that was very gracious of him to do that and he can definitely still do that. He can still take the money that the county gives him and return it back to the people if that's what he so desires. That is not prohibited. But to unilaterally not COUNCIL MEETING -76- September 21, 2011 budget for it and not take it is clearly, in my opinion, against the law. And it again violates what the people's will was was that the salary commission be the sole authority to determine what the salaries of the county officials are going to be. And so likewise for myself when I argued before or provided our position before the salary commission where Gini Kapali was the chair at that time, there was definitely an interest because there is absolutely really nobody here that knows the operations of the prosecuting attorney's office. The mayor has never been to the prosecuting attorney's office. The boards and commissions chair never been to the prosecuting attorney's office. No member of the salary commission has ever been to the prosecuting attorney's office or has ever inquired as to the operations of the prosecuting attorney's office and I think it's irresponsible to make decisions on freezing salaries in any office without knowing anything about that office, its operations, and not even submitting an inquiry as to the operations of the office and why there is a difference between the operations of the prosecuting attorney's office versus the county attorney's office. First of all, clearly the prosecuting attorney's office is elected by the people and it has one of the most highest power ever because it is the only office that has the authority to take away the liberty of an individual. There is nobody else that can do that. And so there are very specific differences between our office and the county attorney's office and that was articulated by Mr. Finlay, who was a member or who is a member and was actually, I believe, appointed that day of August 5, where he spoke and this was his recollection of when he was before a different commission. He was on the cost control commission. I had not made any representations to him. He was talking about Mr. DeCosta and Mr. Finlay says, "You know, so when I was sitting on the cost control commission, the prosecuting attorney came to testify and I think it was during a time when he was lobbying to hire and retain some attorneys. I believe that a prosecuting attorney is worth a little bit more than a county attorney. Based on their skills, there should be a disparity between the positions." So that was articulated, but it was never followed up. And definitely again, had that been the concern about trying to establish the differences, I don't necessarily use the word disparity, there are different kinds of operations that go on in the different agencies and clearly that is something that the commission appeared to recognize or a commissioner appeared to recognize. Again, I don't know why time is of the essence. I think Councilmember Rapozo had articulated that and I'm not sure if he's talking about the entire resolution that's present, but clearly there is nothing that is so pressing, with respect to Section 2, that has to be decided any time and I would ask whatever action that the councilmembers take that they completely delete that entire section so that the council ... if that is the position of the salary commission that it needs more information about the operations of our office, then we'll be able to provide that information to them. And so again, that would be my recommendation. I have sat here for several hours now on this item, whether it had been the last week or the last time this was on and now. There was, though, some indication from the boards and commissions administrator where they asked, "Do we have to discuss this inversion process? I mean why is that so important." And Mr. Dahle says, "There's no law or policy that says that this inversion requires that the salary be changed." But Mr. Isobe then comes back and says, "There is no law, but there is a policy stated in the charter and the policy is the overarching guidelines under which the commission should be making its decision." And he talks about the overarching guideline which says on page 11, please keep in mind that because now they're talking about moving the salary freezes to 2013, "Please keep in mind that there is no legal requirement which says that they should change the resolution other than it being an overarching policy which states that salaries should be set COUNCIL MEETING -77- September 21, 2011 fair." Clearly by that statement, there was an indication by the boards and commissions administrator that the salaries were somehow unfair and that it had to be addressed and I think that's unfortunate because again he has not been at our office and really did not give us the opportunity to provide any testimony really in substance to the commission despite the comments. And there's a lot of comments that are stated here. Again, my concern is the fact that if this language is stated the way that it is about freezing salaries for the next four years, I may not be here, I'm talking in principle that that policy can later be addressed or that issue can later be addressed at a time when we do know what the economic forecast is going to be. But to have that on paper really suggests to the employees that I currently have that if there's a job offer that pays them a little bit more, they should consider it because there is absolutely no opportunity for them to get paid what they may be worth despite their merit, despite an evaluation that says that they did an excellent job. It's despite the fact that they get 90+ convictions on sex assaults. My hands are tied and I have to tell this employee, I'm sorry, I cannot pay you what you deserve because they set four years ago a freeze on your salary and that's unfortunate. And so I hope that this council will consider my testimony and reject in totality the statement made in Section 2. And that is really the only item that I am testifying on. Council Chair Furfaro: Thank you. Ms. Iseri - Carvalho: And there hasn't been any discussion throughout the whole morning with respect to that section. Council Chair Furfaro: Thank you. Is there any questions of the prosecutor's office, Prosecutor Iseri - Carvalho? No? Ms. Iseri - Carvalho: Again, if it means that we have to remove that and have my salary taken away, I am more willing to do that than to have my restriction on having the ability to compensate somebody fairly if they do an excellent performance. And that really is, in fact, what this will prevent me from doing. Thank you very much. Council Chair Furfaro: Thank you. Okay, members, I'm going to call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Perhaps the prosecutor's office was not in attendance as it relates to Section 2 of this piece, but I had mentioned it earlier in the day where I do have a question that deals with the authority that rests with the council versus the recommendations that rest with the commission. For example, to take out Section 2, and I made reference to this several times about the budget, is the mayor with the approval of the county council is hereby authorized through the county's annual operating budget to limit the funding and therefore reduce the salaries for any non - elected officer or employee to the amount lower than the figure established for those positions. So the salary commission establishes the range and the cap. When we address our people, our recruitment and so forth, and I can tell you we practice that right now, we have people on our staff that are being paid less than the cap at our review, at our interview (inaudible). This deals with the clerk's position, the deputy clerk, the county auditor, and it also deals with the prosecutor's office. And that whole section has been taken out, okay. And I'm saying for me, I have a problem with that because I have the responsibility of the budget and as I've COUNCIL MEETING -78- September 21, 2011 been saying, we should take the salary commission's recommendation. We should leave it to the different boards and commissions, including the council as a board, to realize the economics of paying zero for certain people because we've had no increase for maybe the staff that they supervise and so forth, and that happens at the budget time, okay. This now reads that the salary commission finds the current salaries of those offices and I'm saying, that's what the whole budget process is about. The salary commission makes a recommendation on the cap. We encourage fair and equitable reviews knowing that we can't pay over the cap, but also knowing that if we have a marginal performance or if we have a staff or a department that a person supervises that can't hit the ... or shouldn't hit the cap, then that should be left to our discretion. This piece takes all of that out. And I want to read again what it says, "The mayor with approval from the county council is hereby authorized through the annual budget," they take that out. I personally ,have a problem with that, so anyway. Any commentary? Mr. Rapozo? Mr. Rapozo: Just a comment because I think what's interesting is the salary commission basically has set a standard of administrative counterparts. So I guess they're comparing the prosecutor with the county attorney. Who do they compare the auditor to? I don't understand... if you look at Article 1, it's like saying the police and fire should be paid the same. I mean they're on both individual contracts. They have different job duties and I'm not sure you can... especially hearing from the prosecutor that no one ever visited her shop. So how could you even come up with an administrative counterpart and say that these two positions should be paid the same. You know the whole purpose of the salary commission back when they formed a while back to determine what was a fair and accurate salary so we could hire and retain people was to do exactly that. Find out what the private sector is doing. What's our counterpart in the government? In other words, if you had a prosecuting attorney's office, a prosecuting attorney, you would compare them with a defense attorney, someone that runs a law firm, that has 10 attorneys under that person, and they prosecute or defend criminal cases. I mean that's the counterpart. When you're talking about the prosecutor versus county attorney, like I said I'm not sure who they associated the clerk and the auditor with. I just don't know because there is no counterpart in Article 1, so I have a serious concern about that and definitely would not support that being in there, but... Mr. Castillo: Council Chair, excuse me. Council Chair Furfaro: Yes. There being no objections, the rules were suspended. Mr. Castillo: Al Castillo, county attorney. Mona wrote ... I believe she wrote an opinion regarding why Section 2 is not legal, why the salary commission cannot delegate their authority. So maybe... Ms. Yukimura: Do you have a copy of that opinion? Ms. Clark: I don't have it on me, but I'd be happy to go (inaudible). Council Chair Furfaro: Please come up. Regardless of the comparisons by positions by Mr. Rapozo, I want to make sure you understand my piece. Ms. Clark: That was the part I wanted to address. COUNCIL MEETING -79- September 21, 2011 Council Chair Furfaro: This council has the ultimate approval for the budget. Seventy percent of the budget is made up of payroll taxes and benefits along with salaries. This basically says, the council is lined out. Ms. Clark: What this section would do, this Section 2 if it were left in there, it would make the council one of the appointing authorities in setting the salaries and that authority is delegated under the charter to the salary commission. And so it's not appropriate for the council to be acting as the appointing authority through its budgeting process. Council Chair Furfaro: I understand your point of view from a legal standpoint. I'm telling you in private practice, if I hired an executive chef, I budget a range of salary. It doesn't mean the general manager then determines we're going to pay him more than what was budgeted. We determine what we feel is the appropriate compensation, okay? This says that the salary commission is now the authority for capping certain positions and the fact that they are saying and no further increases. Ms. Clark: Well, the salary commission does cap the salaries. Council Chair Furfaro: That's not what it says. We're talking about cap. This is saying that with the annual budget the council is removed. Ms. Clark: It's saying that the council would have authority to reduce the salaries and the charter says in 29.03 that the appointing authority has the authority to reduce the cap. So yes, in fact, it is allocated and yes, in fact, the council has been removed. Council Chair Furfaro: And I have a problem with that. Ms. Clark: In private situations... Ms. Yukimura: But then we have to change the charter. Ms. Clark: Right. The charter trumps what happens in private organizations. Private organizations aren't bound by it. And so the process is different. Council Chair Furfaro: I understand that. I want to make sure we're really clear. So why did we remove that as the authority lasting with the council? Why is it removed? Why is it lined out? Ms. Clark: Because that's what 29.03 does. 29.03 states that the appointing authority is the one that has that authority to reduce it, not the council. Council Chair Furfaro: Okay and who appoints the county clerk? Not the mayor. Ms. Clark: This was an across - the -board statement. Council Chair Furfaro: I'm just trying ... who appoints the auditor? Not the mayor? COUNCIL MEETING -80- September 21, 2011 Ms. Clark: Yes and if you limit the statement, you could redraft it perhaps and limit it to those parties that you have appointing authority over and that would not be a problem. But to do it as an across - the -board statement and give you control over administration personnel is not appropriate. And that's what the broad range (inaudible). Council Chair Furfaro: But we have authority ... we have the ultimate authority over the budget, which reflects all salaries in the county, whether it's appointed, elected, bargaining units. That authority for the budget lies with the council. (Inaudible.) Ms. Yukimura: charter provision regarding & Council Chair Furfaro: Ms. Yukimura: Council Chair Furfaro: done by them. But the setting of the salaries is done via the ilaries? The setting of the cap is done by them. That's right. Okay, let's be very clear. The setting of the cap is Ms. Yukimura: But the council cannot set the salary for the planning director. Council Chair Furfaro: I understand that. I'm reading the positions that are our responsibility. Ms. Clark: You could revise the section to limit it to those positions over which you have authority. I mean that could be done by the salary commission and approved by you. Council Chair Furfaro: Now we're making some progress. Ms. Clark: And you may make that suggestion to the salary commission that you would like to do that. But you probably don't ... for those that you have authority over, you don't want to delegate to the mayor authority to set those. You don't want to be doing that in tandem... Council Chair Furfaro: Absolutely do not want to. I agree with you. But I'm saying that regardless of what positions the mayor puts in the budget, they are still subject to review by this council. The ultimate budget authority for the County of Kauai rests with the council. Ms. Clark: The budget authority rests with the council and the salaries rests with the appointing authorities. Council Chair Furfaro: The salary recommendations rest with the commission, yes. Ms. Clark: The salary caps rest and the appointing authority has the authority to set it lower. Council Chair Furfaro: Okay, Mr. Bynum? COUNCIL MEETING -81- September 21, 2011 Mr. Bynum: I think I understand why this has to come out because under this —and you correct me if I'm wrong —if the mayor and the council agreed, we could reduce the deputy county attorney's salary to $32,000. Ms. Clark: Right. Mr. Bynum: And we can't do that because in this area and the Chair said earlier we need to budget what the cap is to give that authority, right? So I understand and I read your opinion and I understand why this is inconsistent with the charter and inconsistent with the intent of establishing the salary commission. They're saying... everywhere else I think the Chair is correct, everywhere else in the county if they say we want to pay park workers $32, we can say nope, we want to pay them $10 a year, right? We wouldn't do that, but... Council Chair Furfaro: Oh, thank you for saying that because you just pointed out that I might do that, but thank you for saying that. Mr. Bynum: Of course we wouldn't ... I'm just being facetious, but for these areas where the salary commission has authority, they have authority and this would take it back, away from them. Ms. Clark: That's correct. Mr. Bynum: And so I'm sure the prosecuting attorney doesn't want the mayor and the council to agree that her deputies should be paid $50,000. She wants to pay them up to the cap and if I understand her testimony, she maybe thinks that cap should be increased, right? Ms. Nakamura: Call for the question. Council Chair Furfaro: Wait, I want to respond to one thing here. The bargaining unit agreements prevent this council from making a recommendation about the $10 pay. Let's be very clear on that, okay. I'm talking about our authority when... and the pay is tied to the staffing levels, like at Lydgate Park that was (inaudible). That's what we approved. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Nakamura: Call for the question. Council Chair Furfaro: Okay, there's been a call for the question. Could you repeat the... Ms. Yukimura: Question, please? We have several options I think. One would be to reject. (Inaudible.) Ms. Yukimura: Oh, the motion on the floor is to reject. Okay, so that's the question. Thank you. I'm sorry. Mr. Rapozo: Mr. Chair, I know a call for the question has been made, but I have sat back patiently and haven't been able to really speak. And if I may, I just would like three minutes. I won't do the PowerPoint presentation. COUNCIL MEETING -82- September 21, 2011 Council Chair Furfaro: We didn't get a second on the call for the question, SO. Mr. Rapozo: I really want to say that I think this resolution needs to be rejected. Rejected, we take care of the Section 2 issue. Obviously that needs to be cleaned up and the salary commission can do that. But I think more importantly and I've heard it several times from Mr. Kuali`i and Mr. Furfaro, as well as Ms. Nakamura, that the charter is clear. The 15th is there, that's no doubt. I think for us to ignore that, whether legal or illegal, I don't know. I disagree with the attorney's opinion, but I think you asked it first, Mr. Furfaro, what is right. It may have been Mr. Kuali`i, I'm sorry. But the bottom line is the 15th, there's a reason why that's in the charter and there's a reason why it says shall. I did mention some concerns about how the process was done and I will seek my review of the process because I believe that I think that the boards and commissions administrator needs to do just that. On the PowerPoint I did want to reflect what the duties are and let me just read it real quick, "shall assist in providing administrative and operational support... shall include, but not limited to: assisting in the recruitment, orientation, education, and training" of the duties and functions under the charter; helping to educate members about state and county ethics laws and the state's sunshine law; assisting the mayor to fill vacancies; "being a resource to assist various county boards or commissions in gathering such information, documents and data as such boards or commissions may deem necessary to perform its functions "; and this is the key, "serving as a communications liaison between boards and commissions and the various county departments, offices, and agencies that such boards and commissions may interact with, to help ensure that the various boards' or commissions' information needs are addressed in a timely fashion." I don't read that as to go ahead and be part of the commission and I think that's where we have to make a decision and determination, in fact, what is the administrator's functions. Because if it's going to be to be part of the commission, then I think we take away some of the integrity and independence, which is a very, very strong concern of mine because the commissions are set up to be non - political. They are set up to be the unbiased, the third party, the people that look at things with their own pair of glasses and that's not happening. I don't think it happened in this case. It's obvious that the action of this commission was driven by the communication from the mayor. But at that point the salary commission needs to be allowed to do their job. They need to be allowed to go meet with all the different divisions and departments. That's their function. If they need clerical help, the charter is real clear. It says in Section 29.06, "The mayor and council shall provide an annual appropriation sufficient to enable the commission to secure clerical assistance and pay any other operational costs in the performance of its duties." So if they need to go do a redraft of a resolution or legal research, they have access to the attorneys or in fact if they want to even hire special counsel, they can do so, and we shall provide that for them. That is quite clear. That hasn't been done and I take "shall" seriously. I don't care what I heard today. I take "shall" seriously. And again, the part that I'm concerned about is the fact that the boards and commissions administrator was the only one in this resolution that actually had a pay increase. So the appearance is not a good one in my eyes and I would hope that we can rectify that going forward. I just want to say I'm hoping we can get the five votes to reject. I have no idea where it's going to fall, but I tell you, if we don't reject this, we basically say that the charter is flexible. We can disregard dates. I think it's a wrong approach. I think it's a wrong precedent to set because if we're going to let March 15 go, COUNCIL MEETING -83- September 21, 2011 believe me there are many other dates and deadlines in that charter that we can go find a legal opinion to say, yeah, we can be flexible, and I think it's a wrong, wrong precedent to set. I think it's the integrity, of the charter that's at stake here. I think we need to uphold that and that's what we all took the oath to do. March 15 is March 15 and I really, really hope that we can get the five votes and send a message back to the salary commission where they can go back to work. They can call for another meeting and start having dialogue to fix, once and for all fix the salary process that's flawed. And I'm hoping that we can get the necessary votes and that's really all I have. Thank you. Ms. Nakamura: Call for the question. Council Chair Furfaro: Before we go, I have to say this, okay. The administration is not here. My bigger question is still tied to what if the rejection is approved. No one answered my earlier question as to will they come back for an amended budget number. Secondly, I personally haven't had the time to study the question that I asked of Mona, but I'm very concerned about anything that removes some of the basic authority that the council has without understanding or connecting all the dots. And I guess the third option is, since there's nobody here from the administration to call for a special meeting to get more clarification. That's all I wanted to say. Mr. Bynum and Yukimura, you have one opportunity to speak because we have a motion to call for the question. Mr. Bynum: It's the last one, yeah? Council Chair Furfaro: Yup. Mr. Bynum: I think today was a really important day and regardless of the outcome of this vote, it's clear to me that we needed to reconsider this and have the discussion we did today. The bottom line of this is if we reject this, then several areas, boards and commissions that we don't have control of can give increases of salaries and the question about the mayor's salary is still muddled. If we allow this to go forward, then we know that these positions will be frozen until 2013 or some subsequent action from the salary commission. The other thing that's very significant that happened today is we had a county attorney's opinion that was released to the public. I hope in the future that we would do that as an attachment to our minutes so that people can read them when it comes out. But you can get this county attorney's opinion by requesting it because it's now a public document and the county attorney had dialogue with the council that the public got to watch; and that's a sea change from the way it was here a few years ago and I think it's a very appropriate thing that I'm going to celebrate. I'm going to not vote to reject this. I think it's clear that it's appropriate to accept it. It doesn't mean the end of the dialogue, but I'm very appreciative of the dialogue and having a county attorney who's willing to have public scrutiny of their opinions, good or bad. I think that's a very positive thing. Ms. Yukimura: I Thank you. I'm not going to discuss the substance of the issue. I'm ready to vote and I'm going to vote against rejecting the salary resolution. But I do hear what you're saying, Chair. I don't think we have to approve the resolution right now and we might want to take more time to see ... to COUNCIL MEETING -84- September 21, 2011 understand better. There may be parts of it we may want to reject and maybe have a special meeting on the 28 or sometime before October 5, which is the final deadline. item. Council Chair Furfaro: Anyone else wants to speak? Mr. Rapozo: Well, if you're going to give me, I did forget one Council Chair Furfaro: I'm going to let you speak again, Mr. Rapozo. Mr. Rapozo: Thank you, thank you, sir. I did want to cover, because I had our staff, on the advice of our county attorney, go pull the legislative immunity and they were gracious enough and I just want to read what the Supreme Court has said. "The Supreme Court has long held that state and regional legislators are absolutely immune from liability under 1983 for their legislative acts." And they have four areas that would basically consider an action legislative and I'm not going to go into that, but I just want to say that I'm comfortable that in fact we do enjoy absolute immunity from liability under Chapter 1983 and that's been upheld by the Supreme Court. So I feel a lot better. Thank you. Council Chair Furfaro: I have a question for the county clerk, if you folks would bear with me. You heard me earlier talk about the possibility if we got together to look at making a couple amendments to this. Do we have enough time either in a special meeting or I know the council calendar is pretty full on September 28. I think everybody's heard my three concerns with this at this point. Could I ask you to come up front, Mr. Clerk? There being no objections, the rules were suspended. Mr. Nakamura: Council Chair, Peter Nakamura, county clerk for the record. I think in terms of... Council Chair Furfaro: Can you try your mike, Peter. Mr. Nakamura: Oh, I'm sorry, Council Chair. I think in terms of the alternatives that you were discussing, I think the motion on the floor is to reject the salary commission's 2011 -1 resolution. That is the motion. Whether that motion succeeds or fails ... or if it fails, the option still rests with the council to reject portions of the salary commission's resolution. As I think both Vice Chair Yukimura and yourself pointed out, the salary commission's resolution will take effect 60 days after the time that the salary commission approved it, which was August 5, and by our count the 60th day is October 4, which is the day before the October 5, next scheduled council meeting. Not to beat that deadline, but to avoid that deadline automatically kicking in, the possibility of scheduling a special council meeting prior to October 4 would be another option, Chair. Council Chair Furfaro: So if I support this resolution here and I ask you tomorrow morning to post a special meeting on the 27th so we don't fill up our calendar, that's six days. Do we make the cut? Mr. Nakamura: No, we'd have to post today for the 27th. We'd have to post Wednesday for a Tuesday meeting, that would be the 6th day. Council Chair Furfaro: Is there a time limit on when we have to post? Is it... COUNCIL MEETING -85- September 21, 2011 Mr. Nakamura: clock on the... Council Chair Furfaro: tonight? Mr. Nakamura: By previous attorney general opinion, it's a 24 -hour Okay, so we could post that special meeting Yes. Council Chair Furfaro: Okay. That means we would have a special council meeting on Tuesday, the 27th, okay. That's important for me because it makes up my decision about supporting this resolution with the fact that we're going to have a special meeting on that item. Is there something that you're looking at with the calendar that might change what you shared with me? Okay, so for the members, I want to let you know that I'm prepared to support this with the fact that we're going to have a special meeting on the 27th, six days from tonight, okay? I think that's also along the lines that you indicated, you would be able to consider, Vice Chair? Ms. Yukimura: Yes, I think it's worth not making a final decision today and giving us some time to think about whether we want anything (inaudible). Mr. Kuali`i: No decision we make is final as long as we can put it on the agenda and still make amendments. Ms. Yukimura: No, we have a six (inaudible). Council Chair Furfaro: Yeah, that's correct along with the deadline. Mr. Kuali`i: So the decision we're making today under that instance where you're saying a special meeting in a week regardless wouldn't be final because the next decision we make will override this decision because it's still making the deadline. So we should reject. Council Chair Furfaro: Clarification from the county clerk, please. Mr. Nakamura: Yes, I think, Council Chair, to address Councilmember Kuali`i's concern, I think what the council would have to do is not act on the motion and the second to reject and in fact refer this matter to a special council meeting on the 27th and barring that, if the council is going to take action, we'd probably move into another scenario of reconsideration, which I don't think we want to go to. So, if the council's wish was to act on this at a later date, say for example Tuesday, the 27th, it would be to refer this matter to a special council meeting on Tuesday, September 27. Council Chair Furfaro: You have a question for the county clerk? Mr. Bynum: No. Council Chair Furfaro: Okay, you have a question for the county clerk? Mr. Chang: Yeah, just as an option. Mr. Clerk, would October 4 also be a possibility? Mr. Nakamura: That would be the 60th day. COUNCIL MEETING -86- September 21, 2011 Mr. Chang: Okay, okay, just for clarification. Thank you. Council Chair Furfaro: So I'm not sure procedurally, we have any motions on the floor right at the moment? Mr. Nakamura: commissions... Mr. Rapozo: Mr. Nakamura: defer may be a privile€ You have a motion and a second to reject the salary And the question was called. And the question was called. I think a motion to ,,ed motion, though. I think it ... I'm just ... without checking... Ms. Yukimura: I have a question for the clerk. Council Chair Furfaro: You have a question for the clerk? Go right ahead. Ms. Yukimura: Yes, Mr. Clerk, if we vote on the motion to reject and it fails, then we can refer it to committee, right? (Inaudible.) Mr. Nakamura: This gets... Ms. Yukimura: Why not because we haven't done anything to it. Mr. Nakamura: Yes, I think that was getting to probably where we're going to next, Council Chair, is that if the motion to reject, because five votes are necessary, fails, then we would recommend that a motion to receive the matter as long as... Ms. Yukimura: Or you can move to refer, right? Mr. Nakamura: Correct. Or if the motion to reject failed and the council just stopped at that, it would just be a matter of the deadline kicking in on the 60th day. Ms. Yukimura: Or we can move to set up another council meeting and have that item on the agenda, can we not? Mr. Nakamura Ms. Yukimura: Council Chair Furfaro: Mr. Bynum: be the cleanest way to do it. Mr. Nakamura: final... Yes, I would say at this point. Yes, we could. Yeah. Okay, Mr. Bynum. So we could move to defer to the 27th. That would Because at that point it would still be pending that Mr. Rapozo: I'm not sure you can do that when a call for the question has been made. I think when you call for the question, you have to go for the vote. COUNCIL MEETING -87- September 21, 2011 Ms. Yukimura: Mr. Rapozo: ' No you don't. I don't know. Mr. Nakamura: I think the only question would be whether the deferral or referral would take precedence over the call for the question and that I'm not certain about. Mr. Rapozo: It just seems that then it's a useless call. Ms. Yukimura: Until there's a vote... Mr. Rapozo: That's what a call for the question is to take the vote. If the vote fails, then you can make another motion. Ms. Yukimura: The call for the question is an informal request to vote on the matter. If you move the previous question, then you have to vote and then there's a council vote that says we have to make a decision. Mr. Nakamura: Chair... Council Chair Furfaro: Mr. Clerk, you have the floor. Mr. Nakamura: If it's okay with the council, if we could have five minutes to check on the privilege of the motions. Council Chair Furfaro: We're in a five- minute recess and no more because we're coming close to (inaudible). There being no objections, the meeting was recessed at 6:39 p.m.. The meeting was called back to order at 6:59 p.m., and proceeded as follows: Council Chair Furfaro: Okay, we're back in order here and Mr. Clerk, I would like to ask you if you've had some time to chat regarding the motion that was on the floor and give us some clarification. Mr. Nakamura: Council Chair, Peter Nakamura, County Clerk, for the record. I believe Councilmember Rapozo is correct in terms of calling for the previous question, but in order to get to the call for previous question, Robert's Rules considers calling the question or also known as previous question, considers it a motion to end debate. And as a motion to end debate, it needs a second and a two - thirds vote. So, correct on that you have to get to the question, but to get there, there needs to be a second to Councilmember Nakamura's and I'm not sure I heard a second to Councilmember Nakamura's motion, and then a two - thirds vote to close debate. Council Chair Furfaro: Okay. Ms. Yukimura: So right now there's a motion to reject on the floor. Mr. Nakamura: Correct. COUNCIL MEETING -88- September 21, 2011 Ms. Yukimura: And there was maybe some efforts to make a motion to end debate, but there was no second, so presumably those died. They can be remade again. Mr. Nakamura: Yes, correct. Ms. Yukimura: So we can either go straight to the ... or just at the chair's initiative we can vote on the motion to reject. If it gets five votes, then that's it, right? Mr. Nakamura: Correct. Ms. Yukimura: If it fails, then we can just leave it at that... Mr. Nakamura: And wait for the deadline. Ms. Yukimura: Because 60 days will come and that resolution will go into effect. Mr. Nakamura: Correct. 4th? Ms. Yukimura: Or we can schedule another meeting and before the Mr. Nakamura: Before the October 4, 60 -day deadline. Ms. Yukimura: And refer that matter to that meeting or we can do nothing and the chair, on his own initiative, can set a special meeting and put it on the agenda if he wants to. Council Chair Furfaro: I think we have to vote on Mr. Rapozo's motion. Mr. Nakamura: Yeah and then I think the cleaner way, Vice Chair, would be, dependent on the outcome of the vote on the previous question and whether it gets to a vote on the main motion to reject, if that fails, then it would be to postpone this action on Salary Commission Resolution 2011 till next week Tuesday, where we post a special council meeting. Ms. Yukimura: Move to postpone to a Special Council Meeting scheduled for the 27th. Mr. Nakamura: Councilmember Nakamura's motion, I'm not sure, Chair, you may want to see if there was a second to the previous question first. I apologize. Ms. Yukimura: I don't think anybody disagrees with ending debate. I don't think we need a motion to end debate. We're all in favor of ending debate. Mr. Rapozo: question. I second that motion. That means we call for the Ms. Nakamura moved the previous question, seconded by Mr. Rapozo. Mr. Nakamura: And ending the debate will take you to the main motion to reject, yes. COUNCIL MEETING -89- September 21, 2011 Ms. Yukimura: (inaudible). That's fine. I don't think it's necessary, but Council Chair Furfaro: Okay, do you want to get back to your station or do you want to do it from there? You can do it from there? Thank you, Mr. Nakamura. Council Chair Furfaro: Okay, Mr. Rapozo, would you restate your (inaudible). Mr. Nakamura: Yes, Council Chair, my apologies, if I may, if we can go back to Councilmember Nakamura's motion and Councilmember Rapozo's second. At this time the call for the previous question is on the floor, so I believe a voice vote from the council would be sufficient to bring you to the voting on the main motion. Council Chair Furfaro: We have Councilwoman Nakamura's piece and seconded by Mr. Rapozo. Mr. Nakamura: Correct and the vote is on calling the previous question. So I think... Council Chair Furfaro: The vote is for calling for the previous question. A voice vote is all we need. All those in favor, signify by saying aye. Councilmembers: Aye. Ms. Yukimura: Can you also call for the no vote just so we're clear? Council Chair Furfaro: Okay, may I ask for the no votes? The motion to move the previous question was then put, and unanimously carried. Council Chair Furfaro: Thank you. Okay, now we have Mr. Rapozo's motion. Mr. Nakamura: We're back to the main motion to reject. Council Chair Furfaro: Okay. Mr. Rapozo: And I would ask for a roll call, Mr. Chair. The motion to reject Salary Commission Resolution No. 2011 -1 in its entirety was then put, and failed by the following vote: FOR REJECTION: Kuah'i, Nakamura, Rapozo TOTAL — 3, AGAINST REJECTION: Bynum, Chang, Yukimura, Furfaro TOTAL — 4, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Okay, now I'm looking for the possibility of having a special council meeting. Mr. Kuali`i: Can I have another motion? The motion is to reject Section 2 in its entirety on page 5. Mr. Rapozo: Second. COUNCIL MEETING _90- September 21, 2011 Council Chair Furfaro: I guess what I was looking for, just so everybody knows, I was looking for a motion to have a special council meeting to talk about those particulars and in general overview, I want to make sure and for the benefit of the county attorney, that Section 2 that I have the question on —I want to make sure we know —is the language that we are proposing to delete in Section 2 contrary to the authority provided by the charter to the salary commission. And this will be on that special meeting question. I also want to point out that we need to make sure that the council maintains its ability to review any funding, especially when it comes to adding positions such as executive assistants, which are not covered by the salary commission. So I'm looking for a motion to go to a special meeting regarding this matter in the afternoon of September 27. Mr. Chang: Ms. Yukimura: Mr. Kuali`i: second. Council Chair Furfaro Ms. Yukimura: not a motion. So moved. Second. Chair, I had a motion on the floor and had a Okay. But until it's recognized by the chair, I think it's Council Chair Furfaro: I took the time to explain why I wanted that so we can have that kind of discussion. Your questions along those lines are the ones that concern me. Mr. Kuali`i: But I would just say that we had a lot of discussion today and we had a lot of discussion two weeks ago. We had the prosecutor here testifying before us two weeks ago and again today, and yes, there are all these other concerns about your very same concerns. If there is something else that should be in Section 2 that would more appropriately address your concerns, Chair, that could still happen at a future meeting. But there's no guarantee that the same councilmembers that are sitting at this table today will be at that meeting or that the ... the prosecutor has already indicated that she will not be here to testify any further and she has testified today and two weeks ago. We've spent hours and hours and hours on this and I'm just limiting my motion to the rejection of that particular section and I had a second. Council Chair Furfaro: Why don't you restate your motion, get a second, we'll take a vote on that, and then if somebody would consider what I'm asking, we'll go to the next move. Mr. Bynum? Mr. Bynum: I'm sorry, I'm confused. I thought we just rejected the ... I mean we just voted on the main motion. Mr. Kuali`i: To reject everything in its entirety. Now I made a new motion to reject Section 2 on page 5, which is that limited section, that one small section which has about 10 lines which we had a lot of discussion on. The chair had concerns, the attorney had concerns, the prosecutor of course had concerns, and had asked that even if we were unable to reject this in its entirety that we would consider to reject Section 2. COUNCIL MEETING -91- September 21, 2011 Council Chair Furfaro: Okay, I don't want you to make the same mistake I did by recognizing Mr. Bynum and then I recognized Ms. Yukimura, and then I interrupted her. Mr. Bynum, you still have the floor. Mr. Bynum: Thank you. Mr. Kuali`i: So I was discussing the motion and the second. Council Chair Furfaro: Let him have the floor and then I'll come back to you, sir. You have the floor. Mr. Bynum: Three things. One is I thought we had just finished with this item by the last vote. If we didn't and we're talking about Section 2, there are two separate items in Section 2, right. One of them is the language that's being deleted, which I believe is clear, is in violation of the charter because the council does have a limit on those specific positions that are covered by the charter amendment by the salary commission. The whole point was to take the council's authority out of that other than to reject or accept. In the bigger question, I agree with the chair completely that on every other salary in the county we have that authority and we should exercise it and do it, but I think to establish that is a separate discussion, not that portion of Section 2. The other portion of Section 2 is language that the salary commission put in regarding the prosecuting attorney. Currently the prosecuting attorney has authority to pay her deputies up to $101,000 and the county attorney has the authority to pay his deputies up to $94,000. And so there already is a differential on the ground right now that allows the prosecuting attorney to pay her deputies up to $101,000. It is different than the county attorney the way it is right now. So I think that's okay the way it is. So I wouldn't support rejecting Section 2, either of those two items. Council Chair Furfaro: Okay, I understand your opinion and I understand it is your opinion, not mine and I want to get some clarification now that I've taken the time to clarify to the county attorney's office, you know, we've got four executive assistants in the county of which none are covered in the salary commission. I want to make sure I'm not giving up any of my authority as a member of the council who has the ultimate decision about the budget. So I don't know how much more plain I can make it. The other questions I talked about was certain parts of this I want to discuss on the 27th as it relates to making certain amendments about certain positions. Unfortunately, the prosecutor's office won't be available, but the reality is we have a clock that's ticking and that's what I'm asking for. Mr. Kuali`i: Chair, maybe I could restate my motion because what's in here is a deletion of the language that the attorney said was in conflict with the charter. So by stating my motion to reject the entire section, then it's rejecting that deletion and putting it back in, which I didn't intend to do. So rejecting not the deletion of Section 2, the first long sentence that's in brackets, but rejecting the second part where "The Salary Commission finds that current salaries of the Prosecuting..." So Chair, that is my motion. Council Chair Furfaro: Okay and you did get a second. And Mr. Clerk, I think everybody understands my intent. Should we extend the courtesy to call for a vote on that motion since we had a second? Okay. COUNCIL MEETING -92- September 21, 2011 Mr. Kuali`i moved to reject the underlined portion of Section 2 in the Salary Commission Resolution No. 2011 -1, seconded by Mr. Rapozo. Ms. Yukimura: Discussion? Council Chair Furfaro: Yes, go right ahead, Vice Chair. Ms. Yukimura: Yes, I believe that that section that is being added to Section 2 which Councilmember Kuali`i is proposing to be rejected is an attempt by the salary commission to have some equity among attorneys in the county. And it could be true that prosecuting attorneys deserve higher pay, but I think that really ... that is something that should be in the research and ... I mean if we're going to reject it, we should do all the research too ourselves and I think the salary commission was set up and I believe they did look at private sector work. They did talk to different department heads. It may not have been when the present prosecutor was in office, but this effort to actually get executive salaries in the county up sufficiently because they were depressed has been, I think, about an 8- to 10 -year process and they went through a rational analysis. So I don't feel it's appropriate for us to second guess and they are trying to get lateral salaries in line. However, all it does is freeze the cap, which at present is higher with the prosecuting attorney than it is with the county attorneys. So as Councilmember Bynum pointed out, the prosecuting attorney's office is already at a bigger advantage than the present county attorney's office. And so I think we need to keep this here so that there can be some equity and it's not freezing the salaries; it's freezing the cap. So if some of the salaries in the prosecutor's office are not at the cap level, they can be raised, but they cannot go beyond the cap level, which I believe is higher right now than the county attorney's office. Council Chair Furfaro: Okay, Mr. Rapozo. Mr. Rapozo: Thank you. I think we're comparing apples and oranges. I think if you look at the pay scale that was put out by the salary commission, they did not say that the county attorney shouldn't get paid more than the prosecutor. In fact, they should be getting paid the same right now if you look at the chart. It was the administration that voluntarily stopped taking the increases. So that shouldn't diminish the value of our prosecuting attorney, the auditor, and so forth. If in fact the economy turns around at some point, then you advance the county attorney's salaries because remember it was a voluntary freeze. It wasn't a salary commission freeze. It was a freeze that was requested by the administration that said we didn't feel that it was appropriate; we're going to hold back our raises. But that doesn't diminish the value of the position. So don't penalize the positions that are at the scales that they are. If in fact you want to raise the county attorney's position later, go ahead if the economy turns around. But why punish and I think the prosecutor's comments were well taken. You're trying to retain a staff and all of a sudden you cannot because you have to tell them, sorry, we're limiting your advancement possibilities. If you look at the chart, county attorneys right now today should be paid exactly the same as the prosecuting attorney if you look at the salary resolution. But it was because of the freezing, if you want to call it, the freezing or the voluntary stoppage of the increases, that's where the disparity occurred. But it was at no fault of any department. So I want to caution us that eh, we don't want to stop the progression because these positions deserve it and because somebody failed to take their raise doesn't mean the other departments are not entitled to it. I think that's ... the analysis was done. It was determined that this is the accurate pay for that positions and I think we need to honor that as well. So I'm going to support it, but obviously we can count and look forward to your meeting. COUNCIL MEETING -93- September 21, 2011 Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: In fact, the salary commission by this provision is agreeing with the mayor's voluntary hold back saying it is appropriate to delay these increases. I think everybody wanted to bring up the depressed salaries, but they're also saying in light of the economic conditions, it's appropriate to delay the increase in executive salaries. It's a major policy decision, but I think we all said we agree with it. And so this is not punishing anybody, it's just trying to keep some equity and the policy applicable to everyone. Council Chair Furfaro: Okay, on that note I was going to call for the vote, but I'll let you speak again. Mr. Kuali`i: Just one quick comment. The statement Councilmember Yukimura made about a thorough or rational analysis, I'm just saying we don't see that and we haven't heard from anyone, so we just have to assume that. But we've heard from the prosecutor that she wasn't even contacted, she wasn't able to contribute herself or in writing, and if this thorough analysis was done three years ago or four years ago, is it really still pertinent? I mean is it appropriate to consider it still or should there be a current analysis. And this whole idea about freezing one group so another group can get caught up without the justification of should they be equitable to begin with and that, I think, is what the prosecutor stated. I have to disagree with Councilmember Yukimura at this time. Council Chair Furfaro: Okay, I do want to call for the vote on this item and then everybody also understands that I'm looking for a special council meeting notice to post so we can have more discussion on the three items that I discussed. But let's vote on this item first and let's do it by roll call, Mr. Clerk. Mr. Nakamura: Council Chair, just to be clear, Councilmember Kuali`i's motion was to delete the entire Section 2. Mr. Kuali`i: To reject in part the section that is underlined so is intended to be added and not affect the section that is the deletion. So it begins with "The Salary Commission finds," then it ends "Article 1 have caught up." Mr. Nakamura: So my understanding, Council Chair, is... Ms. Yukimura: You're amending your original motion? Mr. Kuali`i: I made that correction early on, Chair, and you recognized that and the second. Council Chair Furfaro: Okay, Mr. Clerk, are we clear on that? Mr. Nakamura: My understanding is Councilmember Kuali`i is rejecting the underlined section. Council Chair Furfaro: Yes. Mr. Nakamura: Just a question of clarification, Council Chair. So the deletion of that first section. Mr. Kuali`i: Would stand. COUNCIL MEETING -94- September 21, 2011 Mr. Nakamura: You would want that deleted? Mr. Kuali`i: No, the deletion would remain. All of my motion was to reject the underlined section. "The Salary Commission finds" all the way to "Article 1 have caught up." Council Chair Furfaro: Okay (inaudible). May I have a roll call vote. The motion to reject the underlined portion of Section 2 of the Salary Commission Resolution No. 2011 -1 was then put, and failed by the following vote. FOR REJECTION: Kuali`i, Rapozo TOTAL — 2, AGAINST REJECTION: Bynum, Chang, Nakamura, Yukimura, TOTAL — 5, Furfaro EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Now I'm looking for the discussion on the three points that I made earlier. I'm looking for a motion for a special meeting at 2 o'clock on the 27th to discuss some of these questions that I raised. Mr. Chang: I'd like to make a motion to move the meeting to September 27, Tuesday at 2 o'clock p.m., special meeting. Ms. Yukimura: Would that be to refer this matter to a special meeting? Mr. Nakamura: It would be to refer. Ms. Nakamura: Second. Mr. Chang moved to refer communication C 2011 -249 to the Special Council Meeting on September 27, 2011 at 2 p.m., seconded by Ms. Nakamura. Council Chair Furfaro: Thank you. The motion is to refer this item to a special meeting at 2 o'clock on September 27 and we will be back in our new old historic county building on that date. Yes? Ms. Nakamura: Chair, I was wondering whether we could specifically ask the salary commission to be present at that meeting to discuss the salaries of the prosecuting attorney and county attorneys to discuss the variances and their thinking about whether there should be a variance moving forward in the future based on their analysis of the job demand. Council Chair Furfaro: Okay. Excuse me, the county attorney raised their hand. There being no objections, the rules were suspended. Mr. Castillo: Council Chair, thank you, county attorney Al Castillo. It would be beneficial to this council if somebody can write those questions because the answer that you want, I would assume, would come from the salary commission, so that they all can vote on the answer rather than each person's own opinion. So I think that would be beneficial. (Inaudible.) COUNCIL MEETING -95- September 21, 2011 Council Chair Furfaro: the rules, you have the floor. Excuse me, excuse me, please come up. Suspend MONA CLARK, Deputy County Attorney: Mona Clark, deputy county attorney. I think you might have some problem as far as getting the salary commission together to have a meeting so that they can vote on the responses to your questions in time for your six -day deadline. I think you're going to run into timelines there. Ms. Nakamura: That would be impossible? Council Chair Furfaro: Oh, it might be impossible, but you know there's nothing wrong with just asking if somebody can appear. So we'll send over a request. Vice Chair? Ms. Yukimura: And I am presuming that all of the oral input from the county attorneys on the questions that were asked and answered today will be put in writing and given to us way before Tuesday, like maybe by Friday at the latest. Mr. Castillo: I'm sorry. I can only say that we can try to get it to you by Monday at noon. Ms. Yukimura: Oh you just... Council Chair Furfaro: Monday, the 26th at noon? Mr. Castillo: Yes. Council Chair Furfaro: Is that what I'm understanding? Mr. Castillo: Yes. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: That's the best we can do, that's the best there is. I'm going to hold you to that date. That only gives us 26 hours to review it. Okay, again, you heard my three points whether it's regarding Section 2, my question about salaries that don't appear on the salary commission for people that get appointed to positions and in fact what is the actual process if we want to amend certain sections as they portray to us so that we can vote on a, maybe an amended recommendation. So I... did I actually get a motion for a special meeting? Ms. Yukimura: Yes, you did. Mr. Nakamura: Yes and a second. Council Chair Furfaro: Oh, I did, okay. Ms. Yukimura: One more question, Mr. Chair. On that issue of inviting someone from the salary commission, I'd like it to be somebody who knows the history of the salary commission. We're not looking for somebody's opinion. We're looking for what the salary commission has done and the rationale and the bases for its decisions that have come forth. COUNCIL MEETING -96- September 21, 2011 Council Chair Furfaro: Okay. We understand as such and so again, we have a motion for a 2 p.m. special meeting at the historic county building at 2 p.m. on these items and tomorrow I'll work with the clerk to make sure those four points get sent over. We have a motion and a second. May I ask on this referral to a special council meeting, all those in favor, signify by saying aye. Any noes? The motion to refer communication C 2011 -249 to the Special Council Meeting on September 27, 2011 at 2 p.m. was then put, and unanimously carried. EXECUTIVE SESSION: ES -498 Pursuant to Hawaii Revised Statutes Sections 92 -4, 92- 5(a)(4) and (8), and Kaua'i County Charter Section 3.07(E), the Office of the County Attorney requests an executive session to provide Council with a briefing regarding legal issues related to the implementation of Kaua'i County Charter Section 3.19 and Bill No. 2410. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Ms. Yukimura moved to defer ES -498, seconded by Mr. Chang, and unanimously carried. ES -500 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kaua'i County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the retention of special counsel to represent the County of Kaua'i in County of Kaua'i, et al. vs. Michael G. Sheehan, et al., Civil No. 11 -1 -0206, (Fifth Circuit Court) and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Chang moved to receive ES -500 for the record, seconded by Ms. Yukimura, and unanimously carried. Council Chair Furfaro: Thank you and I'm going to close the gavel here, but before I do, I want to thank all the members today for a lot of discussion that's made available to the public and some of the passion that was expressed brought us to a good time to have a five - minute recess. But no five- minute recess here, we are adjourned for the day. ADJOURNMENT. There being no further business, the meeting was adjourned at 7:28 p.m. /wa