HomeMy WebLinkAbout09/27/2011 Special Council MeetingSPECIAL COUNCIL MEETING
September 27, 2011
The Special Council Meeting of the Council of the County of Kaua'i was called
to order by Council Chair Furfaro at the Council Chambers, 4396 Rice Street,
Suite 201, Lihu'e, Kaua'i, on Tuesday, September 27, 2011 at 2:03 p.m.
The following members answered the call of the roll:
Honorable Dickie Chang
Honorable KipuKai Kuali`i
Honorable Nadine K. Nakamura
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro, Council Chair
EXCUSED: Honorable Tim Bynum
Council Chair Furfaro: Aloha and welcome everyone to the Historic County
Building and our first official meeting in this facility. I want you to also make
special note that Mr. Bynum is on his way to a family meeting on the mainland as
his father recently passed away and he needs to be there with his family. So I have
accepted his notice of not being able to attend this special meeting. On that note, I
also want to let you know that the new audio system on the podium requires the
touching of a blue light to turn the equipment on and then I also want you to know
that this audiovisual equipment is probably more sensitive than anything we had in
the past. So I would like to beg the indulgence of the people in the back to recognize
when we have a speaker at the podium, please note that your voice in the back can
be picked up and if you'd like to be able to continue your conversation, you need to
do that outside. So for this special meeting, Mr. Clerk, could I have you read the
agenda item.
APPROVAL OF AGENDA.
Mr. Chang moved for approval of the agenda as circulated, seconded by
Mr. Rapozo, and unanimously carried.
COMMUNICATION:
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 Kauai, which was adopted by the Salary Commission at its August 5, 2011
meeting.
• Salary Commission Resolution No. 2011 -1
Mr. Rapozo moved to reject Salary Commission Resolution No. 2011 -1 in its
entirety, seconded by Mr. Kuali`i.
Council Chair Furfaro: I would like to imply that perhaps since we had
dealt earlier in a previous meeting with the motion to reject, I cannot entertain that
motion again. That is quite obviously covered in our rules. I will share with you,
SPECIAL COUNCIL MEETING - 2 - September 27, 2011
though, my intent is to go around the table and have each councilmember have an
opportunity to speak on their position on this item. But if I need some clarity for
you, I will be glad to call the county clerk up to expand on that item.
Mr. Rapozo: I would ask that, Mr. Chair.
Council Chair Furfaro: You may have that privilege. Mr. Clerk, for the
purpose of answering this rule position.
There being no objections, the rules were suspended.
PETER A. NAKAMURA, County Clerk: Council Chair, Peter Nakamura,
County Clerk for the record. I think, Chair Furfaro, what we are asked to look at in
terms of what happened at the September 21 council meeting is the motion for
reconsideration was made; it was approved. The Salary Commission Resolution
No. 2011 -1 was brought back to the floor subject to the approval of the
reconsideration motion. At that time there was a motion to reject and a second to
that motion. In short that motion to reject was lost. There was a vote of 3 in favor
and 4 against the motion to reject. At that point in time, there was a second motion
that was made to reject Section 2 of the Salary Commission's Resolution No. 2011 -1
and that motion was also lost on the vote of 2 in favor and 5 against. At that point
in time, the salary commission resolution was subject to a motion to refer it to a
special council meeting which was scheduled for today, Tuesday, September 27,
2011. At that point, we were asked to make sure in preparing for this meeting to
look at various scenarios that may occur. And one of the scenarios that we ran
through was what's called under the Robert's Rules of Orders a renewal of the
motion and as best as we can ascertain from what's in Robert's Rules on a renewal
of a motion that was previously made and voted on and in this case, which motion
was lost, that this provides the Chair with a certain amount of discretion of whether
to entertain the motion again even if there was a proper motion and a second made.
At this time also one of the things we looked at was Council Rule No. 60)(1), which
Council Rule No. 6 deals with Motions of the council. And under that Council Rule
No. 60)(1) and this is a subsection on Points of Order, and what it does allow the
Chair to do is it allows the Chair, the position of the Chair to actually call a Point of
Order on a motion that was made. Once the Chair, in essence, calls a Point of
Order on any proceeding or motion that was made, Rule No. 60)(1) allows the
Council Chair to call for a sense of the body on any question of order and I think
this is what, Council Chair Furfaro, I think this is what you were referring to, at
this point on whether to properly entertain a renewal of a motion that was
previously voted on. I think what you are asking, I believe, is for the body to
discuss to get a sense from the body of how and where they want to proceed on this
matter.
Council Chair Furfaro: That is the correct assumption as I referenced
Rule 66). I do in fact want to have some discussion at the discretion of the Chair to
in fact get a sense of the body on these particular questions. I believe Mr. Rapozo
may have a question for you.
Mr. Rapozo: Well, I guess the way I read Robert's Rules was
that whenever a main motion gets adopted, rejected or a main motion has been
postponed and I'm reading straight from the book, it says it cannot be again brought
before the assembly at the same session except by a motion to reconsider or to
rescind the vote, but it may be introduced again at any future session. I interpret
that as obviously I could not renew my motion last week, but this allows me to
SPECIAL COUNCIL MEETING - 3 - September 27, 2011
restate my motion because I read it as if this is a future session, so I don't know.
It's an interpretation issue I guess, but I will obviously honor the direction of the
Chair.
Mr. Nakamura: I believe, Council Chair, that's why in essence you
asked for a Point of Order and a discussion of the sense of the body on this. What
Councilmember Rapozo read from, that piece is correct. There's also a section in
Robert's Rules that makes or that could define the motion to reject again as a
renewal of a motion, and in that case that's where the discretion is. While Robert's
Rules is not, well to me anyway, is not entirely clear on it, I think calling the Point
of Order and asking for discussion around the table of where this will ultimately go,
I believe that's an order in terms of how the council rules are set up.
Council Chair Furfaro: Thank you, Mr. Clerk, and that is my intention as
Roberts's Rules of Order is referred to when our rules are silent. Our rules in
Section 6 are not silent on this matter and I can ask for the body to have some
discussion. Mr. Rapozo, did you have a second question?
There being no objections, the meeting was called back to order, and proceeded as
follows:
Mr. Rapozo: No, but I guess we would or someone would need to
make a motion of some sort to get this on the table for discussion.
Council Chair Furfaro: Mr. Kuali`i, I will recognize you.
Mr. Kuali`i: So Chair, I would just like to say that it is not
something that you must do, it is just at your discretion. And if we remember we
were just here last Wednesday arguing whether we should reconsider this or not
and much of the argument and you, Mr. Chair, made the argument very clear that
we should allow getting more information. I think this motion will allow us to get
the discussion and to get to more information. It may be that this was the motion
that we've been dealing with all along. We've dealt with originally we passed it, we
dealt with it and we reconsidered it and it didn't pass. And why would we now start
entertaining a different motion if potentially where we would end up is in a worse
place? And I think that information that we may be able to provide today will be
information that the council really needs to consider and that the only good result
for this council in doing the right thing would be to reject. So if we only get to make
our arguments and share this information with another motion, it's still possible,
but it wouldn't necessarily get us to where we may ultimately need to be at the end
when we get additional information. So ultimately we may need to go there anyway
is what I'm saying, to the motion to reject, based on the information that we're
going to get today.
Council Chair Furfaro: Well, I can say this, that this is at the discretion of
the Chair and I'm asking you to let me portray an opportunity for each
councilmember to restate their positions for some clarity here at the body. I've been
very generous with the rules. In fact at our last meeting I had to recess the meeting
twice for the purpose that I had to remind individuals that when the Chair
identifies a particular councilmember to speak, that councilmember has the floor.
No one then is therefore recognized unless the Chairman then acknowledges them
through a request. So I would like to have a round of discussion at the table to
entertain where the body would like to go and I would like to hear from various
members. But I need a motion to do that and I think that's the fair approach to
this. Also I want to make sure that we're all very clear on some of the motions that
SPECIAL COUNCIL MEETING - 4 -
September 27, 2011
could be made that a rejection today of this would require a super majority of
votes. Am I correct Mr. Clerk? Just acknowledge. So to reject this, we do also
need five votes. On that note, Mr. Rapozo?
Mr. Rapozo: Well, I guess my question is, so is the motion to
reject an option.
Council Chair Furfaro: I would think after our discussion it could be.
Mr. Rapozo: But we need a motion to get to discussion.
Council Chair Furfaro: I'm looking for the motion to get to discussion.
Mr. Rapozo: And what motion are you looking for? Anything
but a motion to reject?
Council Chair Furfaro: I'm looking for a motion that would allow us to
have a roundtable discussion with each member speaking one time on their
position. If you can hold on that I have the clerk wanting to speak.
There being no objections, the rules were suspended.
Mr. Nakamura: My apologies, Council Chair. Peter Nakamura,
county clerk for the record. I don't think I was clear enough. I think to answer
Councilmember Rapozo, I think the motion under which the Chair is holding this
discussion is he, in essence, has called a Point of Order as allowed by the rules. So
on the Point of Order that's what this discussion is. The sense of the body
discussion is taking place under the Point of Order that has been raised.
Council Chair Furfaro: Mr. Rapozo, then Vice Chair Yukimura.
Mr. Rapozo: The Point of Order is to discuss the point, is to
discuss the rule. We cannot discuss the substance of the agenda item in a Point of
Order.
Mr. Nakamura: Correct. I think what the Point of Order is whether
the motion that was made by Councilmember Rapozo and seconded by
Councilmember Kuali`i, if that is a motion that the Chair should entertain. And I
think Councilmember Kuali`i's discussion was artful in terms of how he stated the
reasons why the motion to reject should be renewed or reconsidered at this point in
time.
Council Chair Furfaro: Vice Chair Yukimura.
Ms. Yukimura: So Mr. Clerk, do I understand then that the Chair
can initiate a Point of Order under this particular rubric, and so he has in fact done
that or do we need a raising of a Point of Order by other councilmembers, by
another councilmember?
Mr. Nakamura: I believe, Council Chair, Rule No. 66)(1) allows the
Chair to make or call a Point of Order, to call a Point of Order just ... if I may read it,
"When the Chair or any member thinks 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 enforcement of regular rules."
SPECIAL COUNCIL MEETING - 5 -
September 27, 2011
Ms. Yukimura: Okay, so are you saying that we can have a
discussion about whether the Chair should exercise his discretion and allow or
disallow the motion to reject through this Point of Order process?
Mr. Nakamura:
question of order.
Ms. Yukimura:
a motion is not necessary?
Mr. Nakamura:
Ms. Yukimura
Council Chair Furfaro:
answer to that is yes.
Through the calling for the sense of the body on the
Is the Chair thus raising the Point of Order so that
I believe so.
Okay.
Well, let me clarify that for everybody. Your
Ms. Yukimura: Thank you. So then Chair we are at a place where,
assuming we're through with questions for the clerk, for a discussion about whether
or not to allow the motion to reject?
Mr. Nakamura: The motion to reject, yes.
Ms. Yukimura: Is that right?
Council Chair Furfaro: That's right and that is where the Chair has asked
that I want to call for a sense of the body on the question of order and I would like
to hear from you folks. Vice Chair Yukimura?
There being no objections, the meeting was called back to order, and proceeded as
follows:
Ms. Yukimura: Yes, Mr. Chair, I'm thinking that because this
committee already dealt with it in the past session that there might be a more
appropriate motion that could allow discussion. I'm not at all looking to cut off any
discussion. I think that was the purpose of this meeting. I think we have members
from the salary commission here. And so to me I think there are other motions that
we could have besides the motion to reject since we've already acted on it once
before. We can still come to that later on after we have a discussion, but I am not
clear, should you decide not to proceed with the motion to reject, what motion you
would like, I'm not clear.
Council Chair Furfaro: Thank you. Mr. Rapozo.
Mr. Rapozo: Well, as the maker of the motion it's clear in my
mind that that's the only option we have and obviously that will be the discussion
we have after a motion is made. I don't have a problem if another councilmember
wants to make a motion to receive, motion to do whatever they want as long as we
can get it on the floor to start the discussion. I think it's a waste of time to be
discussing why we... any motion will get it on the floor and I would yield to a
councilmember if you would like to make another motion and get that seconded. I
don't have a problem with that to get the discussion started. I don't have a problem.
Ms. Yukimura: Chair, I'm happy to do that. I would like to consult
with the clerk on what our options are for a motion and what the implications and
consequences are of any motion.
SPECIAL COUNCIL MEETING - 6 - September 27, 2011
Council Chair Furfaro: Okay, well, as everybody knows I am a very flexible
Chair. I want to remind you that I gave you all an opportunity to state clearly a
position before we went around the table, but if you would like to speak directly to
the clerk, I will take a five- minute recess, and we are in recess.
There being no objections, the Chair recessed the meeting at 2:22 p.m.
The meeting was called back to order at 2:24 p.m., and proceeded as follows:
Council Chair Furfaro: We are back in session after providing an
opportunity for the Vice Chair to speak directly with the clerk. Vice Chair you have
the floor.
Ms. Yukimura: Yes, thank you. Just so I can share with everybody
what I learned, among the options we have is a motion to receive and if that passes
and I understand it requires 4 votes, what it will do is, if nothing else happens, in
60 days the resolution will take effect. We also can make a motion to postpone to
any day before October 4 and have another session, but I don't think any of us
wants to do that. We can make a motion to approve, although a motion to receive
would have the same effect. We could make motions to reject certain parts of the
resolution and then allow the resolution to go into effect except for the rejected
portions. I believe and I hope Mr. Clerk that you've been listening and that I've
stated it accurately, but those are our options.
Council Chair Furfaro: Mr. Clerk, is there anything that you would like to
add to the comments made by Vice Chair Yukimura?
There being no objections, the rules were suspended.
Mr. Nakamura:
clarify. I'm sorry, did
certain portions o£..
Ms Yukimura:
Mr. Nakamura:
Ms. Yukimura:
Mr. Nakamura:
Ms. Yukimura:
My apologies, Council Chair, and I just wanted to
the Vice Chair mention that there could be a motion to reject
Yes, I did and we didn't talk about that.
Yes.
Yes.
That's correct.
I thought of it after our discussion. Am I incorrect?
Mr. Nakamura: I think, Chair, that if it was a motion again to
reject Section 2, which is the same section that went to vote last time, I think we
would run into the same issue that we're on currently, but if there was a motion to
reject, say Section 1, I believe that's something that hasn't been dealt with.
Council Chair Furfaro: If my memory serves me right we had a motion to
vote and reject Section 2 and it was a 5 -2 (sic) vote.
Mr. Nakamura: Correct, yes.
SPECIAL COUNCIL MEETING - 7 - September 27, 2011
Council Chair Furfaro: So as I stated in the beginning, it would be the
same process. So I'm still back at my original opportunity to allow ... Mr. Taylor,
would like some ADA equipment? We can make it available to you. We're going to
take a recess.
There being no objections, the Chair recessed the meeting at 2:26 p.m.
The meeting was called back to order at 2:28 p.m., and proceeded as follows:
Council Chair Furfaro: Before we took that last recess I did imply that I
will allow each member to speak as we go around the table. We have another
question for the clerk. The chair recognizes Mr. Rapozo.
There being no objections, the rules were suspended.
Mr. Rapozo: Thank you, I guess I'm confused, Peter. You said
that the motion to reject Part 2, like the motion to reject in totality, you're saying
your interpretation is that those motions cannot be made?
Mr. Nakamura: No, I'm saying... my apologies, I don't think I was
clear enough, Council Chair. What I was saying was that those motions were
already made and so we would run into the same issues that we're running into
with the motion to reject in totality, where it could possibly be considered a renewal
of a motion that was previously done and the Chair, again, has the discretion at
that point in time. So it's that same issue.
Mr. Rapozo: Okay, I understand, thank you.
Council Chair Furfaro: Okay and Mr. Clerk, I want to make sure
everybody is clear on my position. I could entertain a motion to reject. That is
solely at my discretion. But before I get there I would like to have an opportunity
for all members to speak. That's what I'm saying.
Mr. Nakamura: I think pursuant to the council rules, yes.
Council Chair Furfaro: That is at my discretion. Okay, Mr. Chang?
Mr. Chang: Thank you and this is for the clerk. Of the options
Vice Chair Yukimura mentioned and chatted with you in the back, was there an
option of motion to discuss?
Mr. Nakamura: No, hopefully that's where we're going to go now,
councilmember.
Mr. Chang: By making a motion to receive?
Mr. Nakamura: Any motion that's properly made and that the
Chair recognizes, I think that's where your discussion will come in.
Mr. Chang: Thank you, Mr. Chair.
There being no objections, the meeting was called back to order, and proceeded as
follows:
SPECIAL COUNCIL MEETING - 8 - September 27, 2011
Council Chair Furfaro: Okay and now I'm asking before I entertain a
motion at the discretion of the Chair, may I allow dialogue amongst the
councilmembers. I will recognize you around the table. You can so state some of
your concerns or your support so that we can all hear what we've gone through since
September 7 until where we're at now. That's what I would like to do. Vice Chair
Yukimura.
Ms. Yukimura: Mr. Chair, with your permission and with
Councilmember Rapozo's support, if he would withdraw or you decide not to allow
the motion to reject, I would like to make a motion to receive so that we can then
properly have discussion. I'm not making the motion right now. I'm just letting you
know that I'm willing to make the motion under the circumstances I've outlined. Is
that okay?
Mr. Rapozo: That's fine.
Council Chair Furfaro: You have the floor, Mr. Rapozo.
Mr. Rapozo: My motion was never recognized, so you don't need
a withdrawal you just need a second.
Mr. Kuali`i: I think the Chair was saying he wanted to...
Council Chair Furfaro: Sir, I didn't recognize you, okay. I will clarify that.
I did not accept that motion as Mr. Rapozo so stated. Vice Chair Yukimura, do you
mind if I give Mr. Kuali`i the floor?
Ms. Yukimura: Go ahead.
Council Chair Furfaro: Mr. Kuali`i, we recognize you.
Mr. Kuali`i: I wasn't convinced yet to take back my second, well,
I wasn't asked, but also I thought, Mr. Chair, the discussion was on you utilizing
your discretion to recognize the motion or not, and that you wanted to hear from all
the councilmembers on whether you should recognize it or not. I don't know that
we've heard that and maybe we won't and then you'll just make a decision, but until
we get to that point, I don't think we should be making other motions. Either the
motion is going to be recognized by you at your discretion or not. That's all.
Council Chair Furfaro: Okay, so at my discretion as the Chairman, I'm
calling for discussion from the individual members regarding their questions,
particular positions, and so forth on this bill where we're at right now.
Ms. Yukimura: May I move to receive then, Chair?
Mr. Chang: Second.
Ms. Yukimura moved to receive C 2011 -249 for the record, seconded by
Mr. Chang.
Council Chair Furfaro: Now, may we have some dialogue? Mr. Rapozo, the
floor recognizes you.
Mr. Rapozo: Mr. Chair, would it be appropriate to have public
testimony up front?
SPECIAL COUNCIL MEETING - 9 -
Council Chair Furfaro: Would you like to have that?
September 27, 2011
Mr. Rapozo: I would request that the public testimony be taken
up front so we can include any questions that they may have into our dialogue.
Council Chair Furfaro: I have no problem with that.
Mr. Rapozo: Thank you, sir.
Council Chair Furfaro: Do we have people that have signed up? Okay, can
I leave that with you so you can call out the names? Who might have that? Thank
you. So we're going to go in... can I see a round of hands of people who intend to
testify today? Okay, very good.
Council Chair Furfaro: Who is that individual that signed up?
Mr. Nakamura: Council Chair, we have Horace Stoessel as a
registered speaker.
There being no objections, the rules were suspended.
Council Chair Furfaro: Thank you. Mr. Stoessel, you have the floor.
Mr. Stoessel, would you make sure you have the blue light on. Scott, will you make
sure that the blue light is on for the mike?
HORACE STOESSEL: I think there are probably some kinks in this sound
system, but I'm no authority, I'm hard of hearing. It's hard for me to tell. I've had
some trouble so far hearing what's being said. Anyway, my name is Horace
Stoessel. Good afternoon, Councilmembers. The last written testimony I sent I told
you I wouldn't be here today. I changed my mind because there are a couple of
pieces of information that have not made it to the table or into the record that I
think are important and I want to mention them.
The first one is that the 2007 salary commission, the very first one after the
charter amendments, obviously felt that March 15 was a mandatory date. Even
though they had only met for a little longer than a month, they submitted a
preliminary report on March 15. Their advisor at that time was Lani Nakazawa,
the mayor's executive assistant, who had previously been the county attorney when
the 2006 amendments were being considered. And I know, by being present myself,
that she was very active in that process. That commission is the only one that has
made a conscious decision to adhere to a March 15 deadline or I should say a
deadline that fits in with the budget process, other than the 2004 commission of
which I was a member. We were the first ever to bring in a salary recommendation
in such time as to be dealt with in connection with the budget process and that
commission also produced the first draft of the 2006 charter amendments. That
draft went to the council, which passed it on to the charter commission. There was
a great deal of concern at that time to be sure that the process would be aligned
with the budget process because the 1990s were nothing but uproar. I'm sure you
remember, Mel. There were occasions when people almost came to blows. On one
occasion, councilmembers were being threatened that they'd be voted out of office if
they approved the recommendation of the salary commission and that was because
all these recommendations were coming in toward the end of the year around
election time.
Mr. Nakamura: Three minutes, Mr. Chair.
SPECIAL COUNCIL MEETING -10- September 27, 2011
Mr. Stoessel: So in 2004, we were very concerned to fix that
problem and the way to fix it was to align...
ALFRED B. CASTILLO, County Attorney: Council Chair; excuse me, Al
Castillo, county attorney.
Council Chair Furfaro: Excuse me, one moment.
Mr. Stoessel: Was to align the process.
Council Chair Furfaro: One moment, Mr. Stoessel, please. May I ask your
rationale for this interruption.
Mr. Castillo: Yes, Council Chair, if I may, Mr. Stoessel says, we
were concerned. He cannot speak for any body. He can speak for himself. He can
say how he felt, not for the body because I don't think he has permission and he is
not recognizing what body he is speaking on behalf of. So I think it's improper for
him to use the word "we" because it gives the misimpression that he's speaking for
any prior salary commissions.
Council Chair Furfaro: Okay, I will recognize your comments and I will
indicate that Mr. Stoessel will give us testimony based on being a member of that
committee and I, in fact, was a member of the council at that time as well. So, sir, if
you could reference yourself as a member of the salary commission and the history
that you're giving us, you may continue.
Mr. Stoessel: I did that. I resent the interruption. I was not
pretending to speak for anybody. I was describing a process that was going on and
we were concerned.
Council Chair Furfaro: The Chair so notes. You may continue with your
testimony.
Mr. Stoessel: Thank you.
Council Chair Furfaro: And you were speaking as the first person plural,
we were concerned. Please continue.
Mr. Stoessel: I don't like these interruptions of my train of
thought. The first draft of the 2006 charter amendments that we came up with
went through the council to the charter commission and then to the voters. The
charter commission made various changes in the draft that we had proposed and as
I mentioned to you in one of my written testimonies, our plan was modeled on the
Honolulu plan. I believe I provided you a copy of that. Our proposal differed in
various ways. For example, Honolulu required the commission to assemble by
February 1 and required it to produce a recommendation by May 1. In our case, we,
the commission, recommended April 1 and the charter commission changed that to
March 15. There's no question that the purpose in both Honolulu and Kauai was to
align the salary recommendations with the budget process. And the reason for that
is utterly simple. It is the only procedure that makes sense and that's especially
true because by charter the council is also required to appropriate the salaries in
those resolutions unless they are rejected. That's all I wanted to say.
Council Chair Furfaro: Mr. Stoessel, thank you very much for the clarity
and the history from 2004 through 2007. Let me see if any members have any
questions for you. Mr. Rapozo.
SPECIAL COUNCIL MEETING - 11 - September 27, 2011
Mr. Rapozo: Thank you. Mr. Stoessel, so it is your belief as you
sit here today that in fact while on the commission it was clear that March 15 was
the deadline.
Mr. Stoessel: Of course.
Mr. Rapozo: And that in fact the purpose for that was to align
yourself — that's what I heard you testify—with the budget so that the council could
incorporate the recommendations of the salary commission into the operating
budget of the following year.
Mr. Stoessel: Yes and the negative side was we wanted to get
away from all that uproar that had been going on for years towards the end of
years.
Mr. Rapozo: Because at the end of the day, the process should
really be a non - political process.
Mr. Stoessel: Yes.
Mr. Rapozo: It should be a third- party, if you will, looking at the
salary structure of the county.
Mr. Stoessel: Independent process, yes.
Mr. Rapozo: Thank you very much.
Mr. Stoessel: You're welcome.
Council Chair Furfaro: Any further questions of Mr. Stoessel? Mr. Kuali`i.
Mr. Kuali`i: I'm not sure if I have my question fully developed,
but I'll try to articulate it as best I can. So when you said that it's the only
procedure that makes sense especially since the council sets the budget based on
those recommendations. So if the recommendation was back in November, was
approved by the council and that made the March 15 deadline and then it became
law and went into effect on July 1. That seems all appropriate that it's moved
along, right?
Mr. Stoessel: Yes, I would think so.
Mr. Kuali`i: According to what the charter intended.
Mr. Stoessel: Yes.
Mr. Kuali`i: Where we then have a problem is trying to go back
now and undo what was appropriately done by the right deadline and put into place
as a law basically, that took effect. The new higher salary caps went into effect on
July 1. Now whether any of the appointing authorities set salaries at that cap,
actually gave somebody that increase, didn't necessarily happen and doesn't need to
happen. If that was to happen, then that throws everything off and it no longer
makes sense and it's just... what's your opinion on that?
SPECIAL COUNCIL MEETING -12- September 27, 2011
Mr. Stoessel: If I understand your question, let me say first that
November resolution also established not a cap, but the actual salary of the mayor
and that's the only body that has the authority to do that. I tried to emphasize that
the charter also requires the councils by ordinance, to enact these salaries. So if you
get away from the budget process, then somewhere in the middle of the year you are
required to come in with a money bill to pay for those salaries. That is not a very
sensible procedure, in my opinion.
Mr. Kuali`i: Thank you, Mr. Stoessel. Thank you for all the
insight you've provided me with all your testimony over time.
Mr. Stoessel: My pleasure.
Council Chair Furfaro: The Chair recognizes Mr. Rapozo.
Mr. Rapozo: Thank you, Mr. Chair. I just have one question.
While you served on the salary commission, was it and is it your understanding
today that the salary resolution, the salary commission resolution isn't law? What
was your impression of that resolution? Is it that that becomes law or that becomes
the vehicle for the council to enact the legislation to create that law?
Mr. Stoessel: Well, while I was serving on the commission, of
course, was a very different situation. The salary commission did not bring in
resolutions. It brought in recommendations and the council made the final decision
about everything. Speaking for myself, the language that is currently in the charter
amendments uses the word "establish" for what the salary commission can do. It
establishes salaries. The council, by charter, is required and expected to legislate
those salaries by ordinance and the claim that if after 60 days what the commission
submitted is not rejected, it becomes law, that is not an accurate statement. It
becomes established. And at that point, the council becomes responsible for putting
that into law.
Mr. Rapozo: Okay and thank you because I think that's a
misconception, I think, by many that I have spoken to over the last week was the
fact that the resolution in and of itself becomes the law and that's not true because
we all know resolutions cannot have legislative power and that in fact it's only the
act of this council through an ordinance that we can enable that recommendation or
initiate that recommendation that is supposedly established after 60 days. I
wanted to know if you were told otherwise while you served and I understand we
had a different system back then. It wasn't a resolution, it was a recommendation.
So thank you very much, Mr. Stoessel.
Mr. Stoessel: May I follow up with one comment.
Council Chair Furfaro: Mr. Stoessel, you may, but I will allow you the
three minutes to do a follow up. Go right ahead.
Mr. Stoessel: Thank you, sir. Let's see if I can remember the
comment now. I don't, so I will (inaudible).
Council Chair Furfaro: Let me summarize it this way. Section 3.10 and
we're referencing the budget ordinance. The annual budget and the capital expense
program. The council shall enact the annual budget. That budget should be
considered the ordinance. That is the ordinance, okay, which shall include both all
operational costs and capital expenditures for the fiscal year and the method of
SPECIAL COUNCIL MEETING -13- September 27, 2011
financing the same. That burden shall be on the council to provide the significant
revenues to assure that this county has a balanced budget. That's the budget
ordinance. Thank you for revisiting us on that, sir.
Mr. Stoessel: Thank you.
Council Chair Furfaro: Next speaker, please.
Mr. Nakamura: Next speaker is Gary Nelson.
- GARY NELSON, Law Clerk, Office of the Prosecuting Attorney:
Councilmembers, good afternoon. My name is Gary Nelson and I'm speaking on
behalf of the Kauai County Office of the Prosecuting Attorney. Our main position
is that the only legal action this council can take is to wholly reject Salary
Resolution No. 2011 -1. We further believe that the Kauai County Charter's use of
the word "shall" means that its directions must be complied with and that the
March 15 deadline is an absolute deadline. I have a couple of main points that I
want to make.
Mr. Castillo: Council Chair, Council Chair.
Council Chair Furfaro: Yes, county attorney.
Mr. Castillo: I think this an violation of the county charter
where the deputy prosecuting attorney wants to opine on the law when the charter
provides that the county attorney's office is the legal counsel for this body and for
him also. So I caution this deputy and I think he's a new deputy because I haven't
seen him before that he may be stepping over bounds on this one by providing legal
guidance to this council. That's not authorized by the charter.
Council Chair Furfaro: Well, thank you for your caution and let me make a
statement to that point. First of all, I'm going to let you continue with your
testimony, but I want to make sure we all understand at the council level here, that
is your testimony and that is your opinion, and I have made it a very strong
statement that what this council deals with is a proficient policy to set budget and
that budget is only under the jurisdiction of this council. Now, the charter specifies
the rules that we need to follow. I want to make myself clear. I'm not looking for
legal opinions in your testimony because I certainly understand my role for policy
and policy direction. So you may have the floor and continue, but I caution all
members as shared by the county attorney that this is solely your opinion.
Mr. Nelson: Understood, Mr. Furfaro. Thank you.
Mr. Castillo: And may I?
Council Chair Furfaro: Excuse me, one minute.
Mr. Castillo: Council Chair.
Council Chair Furfaro: Yes.
Mr. Castillo: This deputy prosecuting attorney is usurping the
powers of the county attorney by coming before this board and contradicting the
legal opinion that we published last week. I want to caution this deputy
SPECIAL COUNCIL MEETING -14- September 27, 2011
prosecuting attorney again. Should he proceed in this manner there may be
consequences and I hope there's another county attorney available to advise him
before he goes any further.
Council Chair Furfaro: Okay, Mr. Castillo, I am going to take a 10- minute
recess so this young man can think through the statement made by the county
attorney only for the purpose to give you that time. I've already stated my position
as Chairman of the council and our role is about budget and the policy that gets us
to and the responsibility assigned to this council.
Mr. Rapozo: Mr. Chair, before we go into recess, just to make
one comment real quick.
Council Chair Furfaro: Go ahead.
Mr. Rapozo: That I believe our rules require us to take
testimony from everyone, anyone that wants to testify. I'm not going to get involved
with the inner workings between the attorneys' offices, but I believe that anyone
has the opportunity to testify at this forum and I don't believe that we can restrict
anyone from testifying and I appreciate you allowing him to continue.
Council Chair Furfaro: I want to make sure you understand. I did not
intend to take this recess to have dialogue about restricting anyone's testimony.
That is not the role of this council or as Chairman. I restate my position that,
excuse me, I didn't get your first name again.
Mr. Chang: Gary Nelson.
Council Chair Furfaro: Gary, let's take a 10- minute break so you can digest
what was said, but certainly I have no problem in continuing with your testimony.
Mr. Nelson:
Thank you, Mr. Furfaro.
Council Chair Furfaro: We'll take a 10- minute recess.
There being no objections, the meeting was recessed at 2:55 p.m.
The meeting was called back to order at 3:02 p.m., and proceeded as follows:
Council Chair Furfaro: So Gary, before you go on any further, let me just
say that we are more than receptive to hear your testimony. You have the floor
and I do understand you are not offering us a legal opinion, but you're offering us
testimony from the prosecutor's office. Thank you. You have the floor, young man.
There being no objections, the rules were suspended.
Mr. Nelson: Thank you, Mr. Furfaro. Your generosity and
courtesy is very appreciated. I want to make a couple of things clear at the outset
in response to the county attorney's statements. First of all, I'm not a deputy
prosecuting attorney. I am a law clerk. I graduated from UH Law School in May. I
took the bar in July. Those results have not yet come back. Secondly, I'm here
today as an agent for Shaylene because she's in Chicago.
Council Chair Furfaro: We understand that.
SPECIAL COUNCIL MEETING -15- September 27, 2011
Mr. Nelson: I would not be here if she were able to be here. I'm
speaking on behalf of her. And what we have to say is our opinion on a matter that
we believe concerns us. If I may continue with my statement I will. First of all to
begin I would like to bring to the attention of the council a Hawaii Supreme Court
case that we feel is directly on point and the holding of which clearly demonstrates
that the Kauai County Charter Section 29.03 must be complied with, not can be
complied with or may be complied with. In the Matter of Fasi, the Hawaii Supreme
Court held that where mandatory and directory verbs are used in the same statute,
especially where the words "shall" and "may" are used in close proximity to each
other, the Supreme Court infers that the legislature realized the difference in
meaning and intended that the verbs used carry with them their ordinary
meanings.
In the Matter of Fasi, the court saw that the drafters of Hawaii Revised
Statutes 246 -6 used both shall and may in the same section and rationalized that
since both words are being used, the drafters know the difference between the two
and intended each word's plain and ordinary meaning. The issue there was
whether the word "shall" require the mayor to appeal an assessment or exemption
of real property. The court held that such close proximity of the contrasting verbs
"may" and "shall" requires a mandatory effect for the term "shall." This settles the
question of whether the term "shall" in Section 29.03 is mandatory or directory.
Fasi directly applies to the Kauai County Charter, which states the
commission salary findings shall be adopted by resolution of the commission and
forwarded to the mayor and the council on or before March 15. And then two
sentences later says, the council may reject either the entire resolution or any
portion of it. It is clear to anyone that the use of the contrasting words "may" and
"shall" are even more closely placed in the matter at hand than they were when the
Supreme Court considered Matter of Fasi. The Supreme Court of Hawaii in Fasi
applied common sense and convincing logic to set forth a rule of interpretation that
applies to our county charter in a manner that leaves no doubt. In this case "shall"
really does mean shall.
Council Chair Furfaro: Excuse me, I'm going to interrupt you just for a
second. Is that his first three minutes? I'm going to give you your second three
minutes. Go ahead, continue.
Mr. Nelson: Thank you, Mr. Furfaro. Later the Intermediate
Court of Appeals in Aspinwall versus Tanaka held that if a provision is mandatory,
the failure to follow it will render the proceeding to which it relates illegal and void.
The Matter of Fasi is the law of Hawaii as mandated by the Hawaii Supreme
Court. In approving Salary Resolution No. 2011 -1, which was issued by the salary
commission after the mandated March 15 deadline, is contrary to its holding and
will subject this council to liability for acting beyond the scope of the county charter.
What is left is county Resolution No. 2010 -1, which was adopted in accordance with
the county charter on November 3, 2010 and became law 60 days later on
January 2, 2011 because it had not been rejected either by the mayor or the county
council. Right now as I am speaking, Salary Resolution No. 2010 -1 is the
controlling legal authoritative document binding this council to act in accordance
with its provisions. Aspinwall makes clear that the courts will find the terms of the
county charter mandatory and enforce them by voiding any action that fails to
follow it.
My next point is to address the Perry opinion that's been brought to the
attention of the council. With the proper scope of the salary commission in mind, it
is the position of the Kauai County Office of the Prosecuting Attorney that the
SPECIAL COUNCIL MEETING -16- September 27, 2011
Perry exception, if applied to this situation, will extend the salary commission
beyond its aforementioned scope of authority. We must be careful that the
incredibly narrow exception created by the court in Perry is not interpreted as if it
were the rule. It is true that the court in Perry created an exception where the
word "shall" can be read as being directory rather than mandatory in nature. But
examination of the surrounding cases and of Perry itself reveals that this exception
is a severely limited one. The Perry court adopted the exception because strict
application of this statute would have been unjust to the very party the statute was
meant to benefit. The main holding in Perry was that the word "shall" will not be
read as mandatory when an unjust result is reached by using the provision against
the very parties it was intended to benefit. No such situation exists here. No such
situation exists by enforcing Section 29.03 and its effect on Salary Resolution
No. 2011 -1.
Most recently the Hawaii Supreme Court in 2010 in Dejetley v.
Kaho`ohalahala addressed the word "shall" as it was used in the County Charter of
Maui. In that case a councilman had moved out of the district and citizens... sorry.
Council Chair Furfaro: How much more do you have?
Mr. Nelson: Just one more page.
Council Chair Furfaro: Well, I'll tell you what, I'm going to let you go
ahead and summarize for a little while here. So go right ahead.
Mr. Nelson: Okay, thank you. Most recently the Supreme Court
in 2010 addressed the word "shall" as it was used in the County Charter on Maui.
In that case, a councilman had moved out of the district and citizens within the
district moved to enforce Section 3 -3 of the County Charter on Maui, which stated
that if a councilmember ceases to be a resident of the county or ceases to be a
resident of the councilmember's residency area during the councilmember's term of
office, the councilmember shall immediately forfeit office and the seat shall
thereupon become vacant. The court enforced Section 3 -3 and the seat was indeed
vacated by holding that shall is the mandatory sense that drafters typically intend
and that courts typically uphold.
Now I have here a list of other cases all holding that "shall" really means
shall. I won't go through them because of time constraints.
Council Chair Furfaro: Gary, will you be giving us a copy of your
testimony?
Mr. Nelson: Absolutely.
Council Chair Furfaro: Thank you, continue, go ahead.
Mr. Nelson: The subject matter of Perry dealt with the use of
the word "shall" to require that the planning commission hold a hearing within
120 days of application for a Special Use Permit. In Perry a Special Use Permit was
applied for and granted, but the hearing was held after the 120 days. The
complainants were just adjacent landowners that didn't want the Special Use
Permit granted. Therefore, the injustice would have resulted because with the
statute the 120 days was intended to benefit the applicants for the Special Use
Permit and not people that are trying to oppose it. Perry went on explain that the
word "shall" may be held to be merely directory when no advantage is lost, when no
right is destroyed, when no benefit is sacrificed either to the public or to the
SPECIAL COUNCIL MEETING -17- September 27, 2011
individual. Times of economic hardship invariably lead to an increased crime rate,
and an extended pay freeze on the Kauai Prosecutor's Office will make it even more
difficult to procure and retain quality employees, thus sacrificing perhaps the only
vital public benefit of all, the most vital public benefit of all, justice. The crime rate
may rise, but our office's salaries will not increase to meet that increased caseload
because the salary commission will be bound by Resolution No. 2011 -1 and unable
to reevaluate the county's situation and make appropriate salary adjustments.
Finally, Perry stated that a crucial difference between statutes considered
directory and those mandatory arise from the consequences of noncompliance. If a
failure to follow the former is unattended by serious consequences, a neglect of the
latter may invalidate a transaction or subject the transgressor to legal liabilities.
Council Chair Furfaro: Does that end Judge Perry's summary? Right
there, did that end it?
Mr. Nelson: That was in the Perry case.
Council Chair Furfaro: That was on the Perry case. Did that end it right
there?
Mr. Nelson: My testimony?
Council Chair Furfaro: No, the statement because I've given you an
abundance of time.
Mr. Nelson: Yes, I understand.
Council Chair Furfaro: And I wanted you to complete the Perry case.
Mr. Nelson: Yeah, that was the Perry case.
Council Chair Furfaro: Okay, now I'm going to ask you if you could submit
that in writing and I'm going to ask if there's other questions for you from the
councilmembers.
Mr. Nelson: Absolutely.
Council Chair Furfaro: Staff, would you please take his testimony? Thank
you very much. Vice Chair Yukimura has a question for you, Gary.
Mr. Nelson: Sure.
Ms. Yukimura: Hi, Mr. Nelson. So on the issue ... what was the
case before the planning commission case that you brought up? Oh, the districting,
the voting, the candidate in the district, I think?
Mr. Nelson: Oh, yeah, moving out of the...
Ms. Yukimura: Right, the framework that I understood was the
shalls could be mays but not if it affects rights or there's some due process
violations where parties would have severe disadvantages. And I think that was
one of the main reasons the county attorney opinion says that it's okay in this case
to interpret it as may. And you brought up the disadvantage that would come to the
prosecutor's office, but the way I look at the resolutions, the prosecutor's office is not
going to be disadvantaged. In fact, the salary commission decided to maintain the
SPECIAL COUNCIL MEETING -18- September 27, 2011
increases that were given to the prosecutor's office in 2009 and not give it to other
attorneys or department heads of relative equivalency. So I don't understand how
you can argue a disadvantage or negative impact to the prosecuting attorney's
- office:
Mr. Nelson: I think ... I could dig it out, but from memory
Section 2 of that resolution stated that the salary of the prosecutor's office and its
employees would be frozen until either 2013 or until the salaries manage to balance
out their administrative counterparts.
Ms. Yukimura: I believe the caps will stay frozen, but there's
leeway unless the prosecuting attorney takes everything up to the maximum. But
nobody else is going to be able to go beyond the maximums and the maximums in
the prosecuting attorney's office are higher than the maximums in the county
attorney's office. So I still don't really understand that there's any disadvantage to
the prosecutor's office.
Mr. Nelson: Yeah, okay, in response I would just say that the
way that it's written in Salary Resolution No. 2011 -1 where it says "shall remain
frozen on 7/01/13 or until such time that the salary levels paid to comparable
administrative officers and employees listed have caught up under Article 1." That
"or" places a completely indefinite time period. We have no idea when that might
happen or when it might not. It's completely within the control of...I don't know
who's control it's in? Other salary commission?
Ms. Yukimura: Yeah, I can see your...
Mr. Nelson: And that's the concern of our office.
Ms. Yukimura: Okay, so yes, I see here that the word "salary" is
used rather than salary caps, although it's used interchangeably in the resolution.
It doesn't specify cap when it in fact means it. And I was interpreting it to mean
that the caps would be frozen and that's not clear.
Mr. Nelson: That's the problem. That's the problem is that it's
not clear and we don't know what could happen, how it could be interpreted in the
future.
Ms. Yukimura: Okay, thank you very much.
Mr. Nelson: Thank you.
Council Chair Furfaro: Gary, we have another question from Mr. Rapozo.
Mr. Rapozo: Gary, can you explain the Fasi case again?
Mr. Nelson: A Matter of Fasi?
Mr. Rapozo: A Matter of Fasi, yeah.
Mr. Nelson: Okay, a Matter of Fasi basically if I were to
paraphrase what I've said already, it just uses simple logic to say that the drafters
meant what they said and intended the plain meanings of the words. The plain
meaning of the word "shall" is it must happen. The plain meaning of "may" is it can
happen. In Fasi the Supreme Court there said when they're using both words when
they're drafting a section, using both words shows, it's evidence, that they meant
SPECIAL COUNCIL MEETING -19- September 27, 2011
what they said. You see now if they had said shall throughout the entire document,
there would be an ambiguity because "shall" can't possibly apply everywhere. But
when you have "may" so close, if they wanted to use may, they wouldn't have used
"shall." That's what the Supreme Court said. And that's good law. That's the law
of Hawaii.
Mr. Rapozo: Okay and you referenced in your testimony, "shall"
and "may" used in the same, basically in the same paragraph. Okay, thank you.
Mr. Furfaro: Mr. Chang.
Mr. Chang: Gary, thanks for being here and welcome to Kauai.
Good luck to you in your career.
Mr. Nelson: Thank you.
Mr. Chang: You know, I think it's no secret that we all know
during tough economic times, the crime rate will come up and the crime rate will
escalate. So did you say in your testimony that not necessarily unless you get your
raises, the office will not be able to attract good attorneys and/or retain the
attorneys?
Mr. Nelson: It's a fear. We can't say that for certain, but we
have that fear and it's in the future, so we can't project with certainty what's going
to happen. But yeah, that is something that is a concern of the office.
Mr. Chang: Because like for myself; like with good public
policy, we've asked our rank and file to take many cuts, many medical ... they don't
have the medical assistance as they once had. Everybody is paying a lot more.
We've been asking them to tighten their belts and the problem I have is I believe
that the office did have, and many others had, their raises. So they're already up
there. And the rank and file is the ones that suffered and before you came here, we
asked people to go on furloughs. Many of the union members were ... they didn't get
any salary increases and we were going through really, really tough times. There
was a point in time that the Transient Accommodation Tax, we didn't know
whether we were going to retain that till the last minute and I believe it was in
2010, and pins and needles in 2011. Our lawmakers and the legislators are looking
at Kauai like how are they contributing? How are they tightening their belts. So
we didn't know if we were going to get zero. You know if got half, that would have
been great, but we were just fortunate through our legislative teams to be able to
retain all of our TAT money for many of our county facilities. So I don't disagree
that people all deserve raises, but I think the salary commission was able to
understand where we're coming from and what we're doing and these are the
findings of the commission itself that I do respect. So on one hand I do agree that
maybe there is a fear that you cannot attract qualified people or they might not
want to stay, but the salaries that they're getting now, in my opinion, really
supersedes other departments. And like I said going back to my original thought is
prior to you coming here, we've asked our rank and file to take a cut and I don't
know if that's good public policy to show them, like okay, well here you are, you're
here, but let's go here. It's like for myself, I'm a private small business person, I
wouldn't ask my people to take a cut and somehow find out how I can get a raise.
So that's just the problem I tousle with in regards to this. So I just wanted to give
you my opinion.
SPECIAL COUNCIL MEETING -20- September 27, 2011
Mr. Nelson: In response to that and I do understand where
you're coming from. I actually was affected by furloughs. Just last summer I was
clerking at the Honolulu Prosecutor's Office and my pay was cut two Fridays a
month for three months. So I do understand exactly where you're coming from and
I want to make it clear this isn't all about money. This is about what's legal and
what's not and what the law says and it's plain as day. I don't have all the statistics
about how our office compares with other departments. I've only been here a
month. I'm a law clerk.
Council Chair Furfaro: Okay, on that note, I'm going to stop your
testimony because Mr. Chang didn't pose a question, okay.
Mr. Nelson: Oh, okay. I thought there was a question
somewhere. Thank you, Mr. Chang.
Council Chair Furfaro: We had narrative on his feelings.
Mr. Nelson: Oh, okay.
Council Chair Furfaro: And here's my feelings. The salary commission
does not exclusively tie to the bargaining units. The bargaining units have their
own negotiation process. The salary commission is required to evaluate in the
municipalities of this state and other like areas a competitive salary. That's what
they're charged with.
Mr. Nelson: Okay.
Council Chair Furfaro: Okay and furthermore they are charged to telling
us what the cap is. All of the discretions that Mr. Chang has talked about are
within the mayor's jurisdiction. He doesn't have to pay the cap. He pays for
performance and for reviews. He just cannot exceed the cap. So there was no
question posed. I just wanted to clarify the role of the salary commission, which
does not encompass bargaining units. They have their own contractual process
through the State of Hawaii of which the County of Kauai has one vote. And on
that note, I just wanted to brief you, I thought you did Kaho`ohalahala very well in
your terminology of Hawaiian language.
Mr. Nelson: Thank you.
Council Chair Furfaro: So Mr. Kuali`i, you have the floor.
Mr. Kuali`i: Hi, Gary, thank you for being here. I'm just looking
at the document and in your conclusion you conclude on Perry and the Matter of
Fasi„ but you also talk about Gray versus Administrative Director of the Court and
Queen versus San Tana. Can you tell us about that?
Mr. Nelson: Absolutely. Basically in my conclusion I was just
saying that the Hawaii Supreme Court in Gray recognized the frustrations that
we're all having now with interpreting the word "shall." The court in Gray said,
how can shall be so slippery, one may ask, when every lawyer knows that it denotes
a mandatory action. Well, it continued, perhaps every lawyer has heard that it's
mandatory but very few consistently use it in that way. And as a result courts in
virtually every English- speaking jurisdiction have held, by necessity, and that's
important because they only do it when it's necessary, that shall means may in
some contexts and vice versa. Sometimes they even make "may" mean shall. That's
what the court in Gray was saying. The holdings have been necessary primarily to
SPECIAL COUNCIL MEETING -21- September 27, 2011
give this effect to slipshod drafting, that's what the court in Gray said. I've
personally read our county charter thoroughly when I was preparing for this
hearing and I didn't see slipshod drafting. I don't think it's necessary right now to
change the meaning of "shall" to may. That's basically what I was saying with that
case.
Mr. Kuali`i: And the Queen versus San Tana.
Mr. Nelson: Oh yeah, so it wasn't always that we had to do this.
In 1893 in the case of Queen v. San Tana, the Supreme Court of the Republic of
Hawaii stated that we cannot change the language of the statutes, supply a want or
enlarge upon it in order to make it suit a certain state of facts. We do not legislate
or make laws (this is the court). The courts have made clear through its decisions
that it will not depart from the plain meaning of the word shall in this instance and
neither should we. That's all I was saying with that case.
Mr. Kuali`i: And then the last question I have has to do with
earlier you were answering about what effect or impact it would have on the Office
of the Prosecuting Attorney and my thoughts have somewhat to do with any office.
But since you're here representing the Office of the Prosecuting Attorney, wouldn't
one of the effects be that the prosecutor, herself/himself, would be denied the
opportunity to hire and offer a salary level other than the highest cap if that's
already in place and so that limits her ability to ... if she interviewed a group of
people and there was somebody with all this experience and at a certain level and
would not take that capped frozen salary that would be frozen for four years or even
longer, that means she would be denied that opportunity to hire that person.
Mr. Nelson: Mr. Furfaro, have I been asked a question? I'm not
(inaudible) funny.
Council Chair Furfaro: Here, let me pose a question for you real quick and
the answer is what we're looking for. If the prosecuting attorney's office had an
opportunity to hire somebody, but the salary they were desiring was higher than
the cap established by the salary commission, would they then not be able to offer
that position because it exceeded the cap?
Mr. Nelson: Just looking at the resolution, I would say
absolutely not. They wouldn't be able to hire that person.
Council Chair Furfaro: You answered the question.
Mr. Kuali`i: So I'm just saying that the prosecutor herself now
is impacted because she no longer has the opportunity to hire the best person
because of this cap and this cap is frozen in place for four years and possibly longer.
Mr. Nelson: Right, we don't know when it could possibly be
lifted. The way it's worded, we have no idea. And that's probably the biggest fear.
We do understand the financial situation, but we just don't know when (inaudible).
It has no definite deadline.
Council Chair Furfaro: Okay. Mr. Kuali`i, I have two other
councilmembers that want to...
Mr. Kuali`i: I'm fine for now.
SPECIAL COUNCIL MEETING -22- September 27, 2011
Council Chair Furfaro: I will recognize Mr. Rapozo. I will then recognize
Vice Chair Yukimura. At the same time, Vice Chair, I need to step out for a
moment, if you can run the meeting while I'm absent. Mr. Rapozo, you have the
floor:
The Chair was noted as excused.
Mr. Rapozo: Thank you, Mr. Chair. Gary, you did all your own
research for this testimony?
Mr. Nelson: Yeah, I was doing it over the weekend when I
would have rather been watching football.
Mr. Rapozo: Yeah, you cite several cases. I know when I
Googled interestingly "shall" versus "may" and there's quite a bit of cases out there,
but you cite quite a few Supreme Court cases and apparently that's really in line
with what we're experiencing right now.
Mr. Nelson: Right.
Mr. Rapozo: One of the things I noticed in here, you cap locked
"ON OR BEFORE MARCH 15." Is there a reason why you capitalized... this would
be on your first page and actually your second point "on or before March 15."
Mr. Nelson: Right, right.
Mr. Rapozo: Can you explain?
Mr. Nelson: Absolutely. The reason that we were bolding and
capitalizing "on or before March 15" is because even if "shall" was read as may here
you can't read "on or before" as after. That's just absolutely... there's no law for
that. There's no precedent for that. On or before March 15 means on or before
March 15. There's no way that you can interpret it to mean August or September.
You can't read it that way. It's clear as day.
Mr. Rapozo: So you're basically saying that in addition to
"shall," that the "on or before March 15" makes it very clear that the intention of the
legislative body was to have that resolution to the council before March 15.
Mr. Nelson: Right, I mean they went out of their way to make it
clear that it's on or before that date, not just that date. "On or before" has meaning
of its own.
Mr. Rapozo: Right,. in addition to "shall," which could be, I
guess, misinterpreted. But then when you look at "on or before" that basically
clarifies the intent.
Mr. Nelson: Yeah, if there were any questions.
Mr. Rapozo: And I think the Fasi case... to me I think the most
intriguing thing here, in addition to the "on or before March 15," the Fasi case
clearly states that if the authors used "shall" and "may" in the same paragraph, in
the same section, that it was clear that they knew the difference and they wanted
one to mean shall and one to mean may.
Mr. Nelson: Right.
SPECIAL COUNCIL MEETING -23-
Mr. Rapozo: Thank you, Gary.
Mr. Nelson: Thank you, Mel.
September 27, 2011
Mr. Rapozo: You have passed the test for your first time here
testifying, appreciate you being here today. Thank you.
Ms. Yukimura: Councilmember Kuali`i.
Mr. Kuali`i: So following up on my earlier question about hiring
and making a job offer and being limited by the salary cap, isn't it true that that
would also come into play with retention? If there was a deputy prosecutor, even
the first deputy that's been with the prosecutor a long time and was at the cap, now
that cap wasn't just an annual cap, but it turned into four years of being frozen and
then possibly beyond that, couldn't it be that that would prevent the prosecutor
from being able to offer that first deputy or deputy prosecutor even a minimal raise
just to recognize their good work and their productivity and...
Mr. Nelson: Right and once they've reached the cap, it's the cap
until the cap goes away. We don't know when it's going to go away. So if the first
deputy was working under the prosecuting attorney for X number of years, doing a
great job, receiving all positive evaluations, there's no way to reward that positive
service.
Mr. Kuali`i: So it impacts, it harms, it affects the prosecutor
and her ability to do her job at the very top, but it also would impact the coworkers
because if they lost one of their most senior members because for four or five years
his or her salary was maxed and they decided they're not going to not be rewarded
even in the smallest way for their accomplishments year after year and they leave,
then the whole department suffers. And in fact, you would even say the people
suffer because the best and the most effective folks that are maxed out, we may not
be able to retain them.
Mr. Nelson:
Mr. Kuali`i:
Absolutely.
Thank you.
The Council Chair was noted as present.
Council Chair Furfaro: Vice Chair, you didn't have a chance?
Ms. Yukimura: No.
Council Chair Furfaro: Okay, I just want to say one thing. It's a personal
moment of privilege here.
Ms. Yukimura: Go right ahead.
Council Chair Furfaro: For the IT people, I just went to look at the
webcast, it's coming out very well, not choppy (inaudible). So you have the floor,
Vice Chair.
Ms. Yukimura: Thank you. Gary, in your research, did you look at
the case State versus Shannon.
SPECIAL COUNCIL MEETING -24- September 27, 2011
Mr. Nelson: Yes, I did.
Ms. Yukimura: That's a 2008 case, so a very recent case. The
county attorney's opinion says that it set out three criteria. Do you disagree with
that understanding of the court?
Mr. Nelson: No, I believe it cited Perry and basically used the
same criteria that Perry used. When I read it, it looked like it was just bringing
back Perry and saying exactly what Perry had said. The criteria that he used
allowed for a narrow exception to the word "shall."
Ms. Yukimura: That it shall not be read as mandatory when unjust
consequences result?
Mr. Nelson: Right.
Ms. Yukimura: And that it may be directory where no advantage is
lost or no right is destroyed.
Mr. Nelson: Yes.
Ms. Yukimura: Okay, so you don't feel that it allows for an
interpretation in the case of the charter as a "may'?
Mr. Nelson: Absolutely not, no.
Ms. Yukimura: Because?
Mr. Nelson: Because it affects the rights of a lot of people. It
affects the rights of a lot of public servants for this county.
Ms. Yukimura: There's no vested rights at this point because
there's a second step in terms of authority setting the salaries. So arguably, the
rights are not vested and therefore not taken away.
Mr. Nelson: Right. I would just caution you, too, when using
Shannon to understand that Shannon did not apply that exception. Shannon felt
that that exception didn't apply to, I believe it was just going off the top of my head,
but I believe it was a notice requirement.
Ms. Yukimura: Yes, of course, a notice requirement is quite ... would
affect rights quite dramatically, I'm thinking.
Mr. Nelson: Right.
Ms. Yukimura: Although I'm sorry I don't know the details of the
case.
Mr. Nelson: When I read the case, I took away from it that that
exception is a very narrow one and it's meant for situations much more...I would
say drastic than this. It's meant for places where it's affecting the rights of other
people. When interpreting the word "shall" as may would ... when interpreting the
word "shall" as shall would affect the rights of other people negatively. See, you're
asking me if interpreting the word "shall" as may would hurt anybody basically.
But that's not what the law wants to know. It wants to know is we're going to use
"shall" as shall unless it hurts somebody badly, unjustly.
SPECIAL COUNCIL MEETING -25- September 27, 2011
Ms. Yukimura: Well, if I use Councilmember Kuali`i's reasoning,
then I would say that it does affect the county adversely when we're giving
executive pay raises and we're forced to give executive pay raises. The
interpretation of shall would force us to five executive pay raises which are not
appropriate at a time when the rank and file are taking pay cuts. I mean you can
make that policy argument either way.
Mr. Nelson: Right and I don't want to go into that.
Ms. Yukimura: Yeah, right, right and I don't think we have to, but
I mean when you asked me how I would apply it and see that there were some
negative effects, in fact I can find some arguments.
Mr. Nelson: Right, okay, I mean I understand that, I'm sure.
Ms. Yukimura: But thank you very much.
Mr. Nelson: Thank you.
Council Chair Furfaro: Gary, thank you very much for your testimony.
Mr. Nelson: I'm done?
Council Chair Furfaro: As far as I'm concerned.
Mr. Nelson: Thank you.
Council Chair Furfaro: You are more than done.
Mr. Nelson: I'm glad to be done. Thank you all for your time.
Council Chair Furfaro: Before I go any further, because there was such a
discussion about the prosecutor's office and the county attorney's office, I'm going to
go to Mr. Castillo, if he wants to add anything to this discussion.
ALFRED B. CASTILLO, JR., County Attorney: Good afternoon, Council
Chair, Councilmembers, Al Castillo, county attorney. I think it's...
Council Chair Furfaro: Excuse me, Al, did you want to have Mona join you?
Mr. Castillo: Yeah, please.
Council Chair Furfaro: Okay.
Mr. Castillo: Chair, Members of the Council, we don't want to
restrict anyone from coming up here and exercising their right to say something.
But I just want to add, it must be pretty daunting for a young law clerk who is
aspiring to get his law license to come up here and address all of you. But that
being said, it's quite clear that there is a lot of research, a lot of case law out there
regarding what "shall" means. Councilmember Rapozo basically said, I Googled and
I saw quite a bit of cases and that is true. But really the question before this
council is basically, county attorney, give me guidance on what the charter means in
the term where it says "shall" and where it's applicable to March 15. And some of
the councilmembers spent a lot of time on this case saying that and this case saying
this, and yes, it is a matter of interpretation. But the truth of the matter is and I go
SPECIAL COUNCIL MEETING -26- September 27, 2011
back to what I said the last time before this body. As your legal counsel, we look for
guiding language. We look for cases that can help and we look for the specific
wording and how the words are phrased within the charter. And that's our starting
point: We look for qualifying language that basically says what March 15 _means.
And like I said before, there is no qualifying language that says that March 15 has
to be within the same budget year. However, I did say to all of you that one could
make a very good argument that it is because you can find within the charter other
language regarding March 15 that is tied in to the budget.
Deputy County Attorney Galen Nakamura shared this with me because he
guided the salary commission and basically he said that at that time they did not
put wording into the charter revision that made qualifying language and
acknowledged that the "shall" does not necessarily mean in this case that it has to
happen that way. And I just didn't want to call him just to have him repeat our
discussions. But this charter amendment... I'm sorry, the salary commission, that
subject matter was near and dear to him. That I know. But to read into the charter
something that is not there, he says basically it's not there. There's no qualifying
language and there's no timeframe as to which the salary commission is prohibited
from sending a resolution from that body.
If you'd like to hear, go through the cases with Mona Clark in terms of how
this opinion of ours came about, she's right here. But like I said, we gave you the
best legal opinion that we can. My 15 years of being a prosecutor, my 12 years of
being a defense counsel, our entire office, your county attorney's office is a big law
firm, amount to I would say over 100 years of experience. We try to provide you the
best possible advice we can and that's what we've given you. So Mona Clark is here
if you want to ask her questions.
Council Chair Furfaro: Okay, Councilwoman Nakamura, then Mr. Rapozo.
Ms. Nakamura: Good afternoon. I have a question. Since you have
served as a prosecutor in the past and now as a county attorney, I wanted to pick
your mind a little bit, your brain about the requirements of both of the jobs and
whether you feel that the attorneys in the prosecutor's office should have a higher
cap than the county attorney's office?
Mr. Castillo: The way that I look at it is that being a prosecutor,
being on the defense side, and now being a county attorney, the roles that we play
are very important for this county. And it is a responsibility that I take to heart.
One of the things that I always focused on when I was a deputy prosecutor and I
was the first deputy prosecutor for about 10 years, pay was always an issue. The
prosecutor's office has their share of challenges. The county attorney's office, we
have our share of challenges. If you look at the Hawaii Revised Statutes, the
volumes, the criminal law deals with basically volume no. 7 and traffic. Civil law
runs the spectrum for 15, 16, 17 other areas of law. It's rather comprehensive,
rather complex. I am not here to denigrate the prosecutor's office because my time
with law enforcement was near and dear to me and Councilmember Rapozo knows
that we work really hard. So I'm not going to say who's better.
Ms. Nakamura: I wasn't asking that. I was just asking whether the
pay should be higher for one office than the other.
SPECIAL COUNCIL MEETING -27- September 27, 2011
Mr. Castillo: Well, put it this way, there are advantages to
working for government and there are advantages in working private practice. To
me it's a matter of choice because for me ... well, if it was money you were interested
in then you would be in private practice and you can make more money. So I cannot
say that...
Ms. Nakamura: I meant between the prosecutor's office and the
county attorney's office.
Mr. Castillo: Well, there is a disparity and I don't ... there is a
disparity. I can say for a fact that the members of the county attorney's office have
a lot more experience. So if you want to pay for experience, then you pay the higher
wage.
Ms. Nakamura: Okay, thank you.
Mr. Castillo: You're welcome.
Council Chair Furfaro: Mr. Rapozo, would you mind if I have a moment
before I give this to you?
Mr. Rapozo: Sure.
Council Chair Furfaro: You know, Al, this is a message for the salary
commission and we have salary commissioners here. The whole goal for them is to
find the best possible competitive price that is fair and reasonable for the size of our
municipality. The disparity that I think Councilwoman Nakamura was getting to
was between the prosecutor's office and the county attorney's office. I mean at
minimum we should ask the question, why were they not both equal in our
recruitment process because one's dealing with about three chapters of the law and
the other is dealing with about seven chapters of the law, and all we're saying is the
goal of the salary commission is to offer us a salary cap range that we could get the
best possible people for the price we budgeted for our municipality. And it's not
equal.
Mr. Castillo: Well Chair and that's the reason why the law clerk
comes up here and he's the agent for the prosecutor. The prosecutor has the
advantage in the way that the present law is written to bump up the salaries of
each of the deputies at, I would say, $101,000. Myself, as the county attorney, I
don't have that ability and that's where the disparity should be addressed.
Council Chair Furfaro: That's my whole point, Al.
Mr. Castillo: Yes, and for the law clerk to come up here and say
what he said, then it does neglect the hardworking members of their counterparts
because we are behind and the law ... the resolution from the salary commission
basically says let's wait and let the other county members catch up.
Council Chair Furfaro: And you weren't the county attorney in 2007 when
I was the finance chairman of the council and the whole rationale in moving in this
direction with the recommendation of the salary commission was for us to be able to
get the best possible people, right, with a reasonable salary grade. You've just
answered the whole piece. The salary commission is handling your office different
than the prosecutor's and that's all I wanted to say.
Mr. Castillo: Yes.
SPECIAL COUNCIL MEETING -28- September 27, 2011
Council Chair Furfaro: I'm going to give the floor to Mr. Rapozo, but I'm
glad some members of the salary commission can hear what I'm saying.
Mr. Rapozo, you have the floor.
Mr. Rapozo: Okay and I don't think the clerk came up to
disparage the county attorneys. I think he came up on behalf of his office and
defending his office, and I think if you look at the history of the salary commission,
the county attorney's office and the prosecutor's office should be the same today. It
was done over the years that they froze, but that was the mayor's call. The mayor
had requested that everybody freeze their raises and that's how come we have the
disparity today. But that is something that unfortunately happened and do I think
you should get paid more? Yeah, I think you should get paid more. I do. I think
the attorneys should get paid the same. But I think and my disclosure is that I did
work for the prosecutor's office and they do work hard, like I'm sure your office does.
But I tell you what the prosecutor's office doesn't have. They don't have the ability
to hire special counsel like you do. You have nine hundred, almost a million dollars
in an account that you can come up here and ask for special counsel. They don't
have that luxury. They have to do all of their cases in- house. You guys, when a
case comes in that you cannot handle, you just go out and hire. So that's a
difference in the two... and that's why I don't want to get into this who's better, who
should get paid more and who should get paid less.
I think the discussion on the table today is really is the resolution legal? Is it
a valid resolution? I mean I don't think we should be debating the moneys that the
salary commission supposedly did their analysis. But there's arguments for all of
them. Should the civil defense coordinator who oversees four people get paid the
same as a county engineer that oversees several hundred? I mean that's not for this
table to discuss because we only have two options, adopt or reject. That's all we
have. We can't amend the numbers. We cannot do that. We cannot go in and say
no, I think that your attorney's office should be ... we can't do that. We can either
accept or we can reject. And I think that's where the dialogue should be going
today.
Mr. Castillo: Well, speaking as a prior first deputy for the
prosecutor's office and as the county attorney, there are similarities in the premise
regarding going out and getting special counsel. I think I've demonstrated to this
council for the past two - and -a -half years how we have screened going out for special
counsel. Because when I came in we had 32 special counsels onboard and we have
drastically reduced that. However, the prosecutor also does the same. The
prosecutor also does the same in the fact where the prosecutor conflicts out and
cannot do the case, goes out and asks other jurisdictions. I, myself, as a first deputy
prosecuting attorney, was asked to prosecute many cases in other jurisdictions, the
Big Island, Kona, Maui, Honolulu and that is how it's done. So the notion that we
have that ability, yes, we do, and so does the prosecutor, but that's for another
discussion.
Council Chair Furfaro: That is for another discussion and I wanted just to
point out that my comment was to take advantage of members of the salary
commission who are in the audience, okay. Mr. Rapozo, you still have the floor.
Mr. Rapozo: No, I'm done, thank you.
Council Chair Furfaro: You're done. Vice Chair Yukimura.
SPECIAL COUNCIL MEETING -29- September 27, 2011
Ms. Yukimura: Yes, on the question of whether this resolution
before us is legal or not legal and on the issues of "shall" and "may," I just wanted to
ask our deputy county attorney, who did write the opinion, to give a response in
light of the presentation that was made by the prosecutor's office.
MONA CLARK, Deputy County Attorney: Mona Clark, Deputy County
Attorney. I think there are different rules of construction and how you apply them
depends on the facts in the case. When you look at 29.03 and you look at the second
use of "may" there, obviously the council's not obligated to either accept or reject the
resolution, so the use of the word "may." That doesn't address whether it's directory
or mandatory. So Fasi really isn't applicable in this case.
You go back to Perry versus the Planning Commission and the criteria that's
set out there. And I think if you looked at some of the suggestions that have come
before the council, people have said, why don't we just do a salary resolution for one
year, just a one -year period. We won't have anything stated about what was in the
past. We won't have anything stated for next year. We confine it to one fiscal year.
That's been proposed. It hasn't been done. But say we did it and you had it only for
one fiscal year. And then a new salary resolution wasn't submitted by March 15.
Does that mean nobody gets paid? That would be directly in conflict with the
purpose of having a salary commission. We would have just done away with all
salaries and that would be a potential result if you held that that was a mandatory
date. That is something that could very easily happen. So it would confound the
whole purpose of the Section 29.03. So you have to read it as directory, not
mandatory.
Council Chair Furfaro: Excuse me, Mona, the Vice Chair has another
question (inaudible).
Ms. Clark: Sure.
Ms. Yukimura: Now what was the language you used? If there
were qualifying language or other language that made it clearly mandatory?
Ms. Clark: Right, if there were negative consequences and
they were stated, then you would know that that had to be a mandatory date. But
it's not. There are no negative consequences stated for not getting it in by that date.
Ms. Yukimura: Well, is that what you mean by qualifying language
when Mr. Nakamura said he didn't put in? I mean because what I'm getting at is
that you could get to a very intentional situation if in fact the salary commission in
its wisdom said one year only and then did because it is possible to do a mandatory
shall, right, by how you write it in the charter and then you would be stuck though.
Ms. Clark: Right. If it said if you don't submit a new salary
resolution by March 15, the prior year's salaries will apply. But they didn't state a
negative consequence like that.
Ms. Yukimura: Is that what you ... is quali ... what is the word?
Qualifying language? Is that what you used? Okay, all right.
Mr. Castillo: Excuse me, when we discussed... when
Mr. Nakamura, who's a private attorney now, and I discussed qualifying language,
it was meant to ... we were talking about you have March 15 and there wasn't any
language within the charter provision that qualified exactly what this March 15
meant.
SPECIAL COUNCIL MEETING -30- September 27, 2011
Ms. Yukimura: Right, right.
Mr. Castillo: Because he said basically...
Ms. Yukimura: Making it clearly mandatory.
Mr. Castillo: Yeah, to make it clear because he said if we did
qualifying language we would have specifically said March 15 of the same year that
your budget took place or something like that. But they left it out because it wasn't
their intent to limit the salary commission.
Ms. Yukimura: Or as Ms. Clark pointed out, you could also say
that if the deadline is not met, then such and such and such will happen.
Mr. Castillo: Yes.
Ms. Yukimura: Either to mitigate not meeting the deadline or to
say that you better meet it or else, kind of. Okay, I appreciate that. Thank you
very much.
Council Chair Furfaro: Councilmember Nakamura.
Ms. Nakamura: I also had a chance to speak to my husband about
this and bent his ear, but my interpretation of what he said is that although they
wanted to tie it into the budget process that they did not contemplate, anticipate
that a salary resolution would come after the fact, after the budget was approved.
So there is actually ... I believe the charter is silent on this and so I think that's why
we're having these discussions. But I just wanted to clarify that.
Mr. Castillo: And I totally agree. The charter is silent on that
and that's the reason why I said earlier that we cannot come up here and say to all
of you this is a definite read and the fact that we look at precedence and then even
Mr. Stoessel said only in 2007 did they follow the March 15.
Council Chair Furfaro: Well, thank you very much for that feedback. I see
it completely different. And I've said it to you before, this council is charged with
the budget. The salary commission is charged with a recommendation. We have
very explicit dates to meet a budget projection and so does the administration. And
if you don't meet the date that says "you shall provide the appropriate revenue," the
same budget goes into effect with a 5% increase. That's what the charter says. So,
oh, it's not clear and so forth, but what I'm saying, when we're looking at financial
responsibility for this council, to me, the council shall enact an annual budget
ordinance. It shall include all of the operating costs, including payrolls and the
capital expenses for the fiscal year. We know what the fiscal year date is. We know
what the calendar is. We know what the planning time is. We did a resolution in
November for a budget that needed to be submitted in March. If we didn't agree on
the budget, last year's budget applies and the council has a 5% variance in the
previous year's expenses. So you've given me all the legal stuff. I'm just sharing
with you as a 38 -year businessman working in third world countries, working with
other governments, whether it's Rarotonga, French Polynesia, and so forth, if you
say to the Prime Minister, we'll have your operating budget for you on your hotel
and we will have it to you at this date, it's kind of understood the guideline is to
meet the projected deadlines. That's all I'm saying. It's a policy statement and I
SPECIAL COUNCIL MEETING -31- September 27, 2011
think if this is what Galen Nakamura said, they never understood it to cause this
kind of confusion because it was silent, I can buy that. Council Vice Chair
Yukimura.
Ms. Yukimura: So basically it's subject to interpretation as
something that's silent and it's not outright illegal as a mandatory "shall."
Ms. Clark: No, I think that's clear. The Supreme Court has
stated that in certain circumstances you can read "shall" as may, and I think that
this is one of them and that's clearly consistent with the Supreme Court's opinion.
Council Chair Furfaro: Let me ask you this question, if I may? So can I
read "shall" in the 60 days as being may? No, I'm serious. If you guys are going to
make those kinds of interpretation, hey, I'm not in violation if I don't move on this
by October 4.
Ms. Clark: But they do tell you a result if it does not have...
Council Chair Furfaro: And what is that result?
Ms. Clark: It becomes law. So there is a stated consequence.
Council Chair Furfaro: That's all we needed to know. So I could say to you
right now there is a consequence if I don't move on that "shall."
Ms. Clark: On that "shall," yes.
Council Chair Furfaro: Thank you. Mr. Rapozo.
Mr. Rapozo: And how would that become law?
Ms. Clark: It will become law...
Mr. Rapozo: How?
Ms. Clark: By no action.
Mr. Rapozo: A resolution cannot become law.
Ms. Clark: The way it's set up in Article 7 of the Constitution
of the State of Hawaii is that there's delegation of local power and in Hawaii
government... let me grab the case name, so I can go directly...
Mr. Rapozo: I guess my question is the charter says the only
way you can pass legislation is through ordinance and the only people that can pass
an ordinance is the county council.
Ms. Clark: That's not correct, though, because it says unless
otherwise stated in that section.
Mr. Rapozo: Okay and where would that be stated that that
resolution would become law?
Ms. Clark: In Section 29.03 it states that it will become law.
Ms. Yukimura: It shall take, it shall take...
SPECIAL COUNCIL MEETING -32- September 27, 2011
Council Chair Furfaro: Excuse me, JoAnn, Mr. Rapozo still has the floor.
Mr. Rapozo: And then I had some questions about the Perry
case as far as relevance to this case, and I know people chuckled when Jay asked a
question about the 60 days, but what about the number of commissioners? There
shall be seven commissioners.
Ms. Clark: Why, you know, that would be also a case of a
directive because if you have a commissioner resign, then you no longer have seven
or the requisite number. So it's directory. It doesn't prevent them from being a
commission.
Mr. Rapozo: So they can... they can actually... they can run a
commission without seven members.
Ms. Clark: Yes, you have commissions without the necessary
number of members.
Mr. Rapozo: On the Perry case, I guess I'm trying to tie in the
relevance. I read that case over the weekend and it's brutal to read, but I read that
and I also spoke to a friend of mine on Oahu who's an attorney and trying to help
understand it, but I'm trying to figure out the relevance because obviously Perry
had nothing to do with a charter or a constitution. It had something to do with, I
guess, the CZMA. But where is the relevance as far as the tie -in from Perry to this
case, the charter?
Ms. Clark: Just that it's setting out three sets of criteria that
need to be looked at and those criteria have been repeated by the Supreme Court,
not only in Perry and Shannon, but in other cases and that's where they delineated
them.
Mr. Rapozo: Perry, I think, one of the ... what I read what the
court said was that one of the reasons for it being directory was that time was not of
the essence. And in this case it is because the intent, again, was to get it tied in
with the budget. There is a definite intent to get the salary recommendation to the
council before the budget. So time was of the essence. In this case it wasn't.
Obviously it was a permit that had already gone, it's a 120 -day deadline and it had
gone past. But it was a case where they mutually agreed on the extension. And in
fact ... I mean no one suffered because the applicant benefited. But in this case,
there was a definite... time was of the essence because March 15 was tied and unless
Galen Nakamura is here, I hate to hear anybody say what he said because I mean
Mr. Stoessel got interrupted because he was saying what the commission was
saying and if Mr. Nakamura is not here and although I trust his wife, I'd much
rather not talk about what he said unless he was here. But I think it was clear
what the intent was. I don't think there's a dispute that the intent was to get that
salary recommendations to the council so that the council can incorporate the
findings into the budget.
Mr. Castillo: Precisely my point. Your premise right now is a
conclusion that time is of the essence. What we're saying to you is we cannot come
to that conclusion because there is no qualifying language that says time is of the
essence. If the qualifying language said that time is of the essence, that you must
do this in this fiscal year or that fiscal year, then it would be of the essence. So
that's reconciling and distinguishing your premise.
SPECIAL COUNCIL MEETING -33-
Mr. Rapozo: Okay, well, I
It's common sense that in fact why would
subsequent year budget. It makes no sense.
September 27, 2011
guess, I don't know, it makes sense.
they do a March 15 deadline for a
Mr. Castillo: And I agree with you totally when I said before that
one could make a very good argument for that assumption because in the other
areas in the charter March 15 is tied in to the budget.
Mr. Rapozo: And then I have just a couple more.
Council Chair Furfaro: You still have the floor.
Mr. Rapozo: Okay, thank you. Shannon, when I read Shannon,
the Shannon case comes out with a statement or a comment from the court that it
says, "It is a well established tenet of our statutory interpretation that the use of
the word shall generally indicates the legislature's intention to make a provision
mandatory as opposed to discretionary." But that wasn't in your opinion, although
that was in the case. I just wondered why wouldn't that be in the opinion.
Mr. Castillo: Councilmember Rapozo, let me, I guess, for the
audience out there also is when you do legal research what you look for is you look
for the general law regarding the situation. It would be very nice if you could find
the law and you could find a case specific to your set of circumstances. When you
talk about the other cases, even the other case, the Fasi case that the clerk brought
out and the other case that you talked about, those are like zoning cases. The Fasi
one is you didn't file your appeal on time.
Mr. Rapozo: Well, I'm asking about Shannon now.
Mr. Castillo: Yes, yes, yes, but those cases are...
Mr. Rapozo: I'm not asking you guys about those. I'm asking
about your opinion. I'm asking about Perry and Shannon. I'm not referencing
theirs in this questioning.
Mr. Castillo: The problem is, yeah, we're trying to reconcile
cases, but then we don't have case specific that we can marry the same set of facts
here, then we would be able to give you the exact law for the same set of facts. We
can give you what the general law is.
Mr. Rapozo: Al, I guess what I'm concerned about is you folks
are our attorney.
Mr. Castillo: Yes.
Mr. Rapozo: You're our attorney.
Mr. Castillo: Yes.
Mr. Rapozo: And I guess what I expect when an opinion comes
across, it needs to cover, even if it doesn't support the resolution that we're
considering. I would like to be told and I guess my question is in Shannon the
general rule, I mean they clearly set it out as the general rule, but that wasn't in
our opinion. Now I guess and this would be a question for the other
councilmembers is if in fact that was part of our opinion, which it said, "It is a well
established tenet of our statutory interpretation that the use of the word shall
SPECIAL COUNCIL MEETING - 34 - September 27, 2011
generally indicates the legislature's intention to make a provision mandatory as
opposed to discretionary." That's out of the Shannon case, but it was not in our
opinion.
Mr. Castillo: Yeah, but see what's happening here,
Councilmember Rapozo, is we're not bootstrapping this entire conversation on what
Shannon says. If you really want to know what Shannon says and give us the time
to brief it and whatnot, we can do that. But the point is and you said it yourself,
you tried Googling and there are quite a bit of cases. And we are giving you what
the case law says and the case law, the basic premise is there are times when
"shall" is shall and "shall" may mean may. And that's the premise of all of the
cases.
The second part to this is the fact that we have no qualifying language in our
charter which would have been helpful. So that is the importance of the legal
opinion that we gave you that would give you the leeway to say this 2011 is legal;
it's not an invalid document. And that's the basis for the legal research we did. Not
to go ... because in litigation and in briefing cases, you're always going to have one
side take this, one side take that, and we come in with our cases and we go before
the judge and we say this case did this, this case said that, and then the judge will
decide. Well, the proposition for this council is that there are cases that say that
"shall" does not necessarily mean you gotta. That's all we're trying to say. And
there are cases that support that. And that's all.
Mr. Rapozo: Okay, I have one question, one last question,
Mr. Chair.
Council Chair Furfaro: You have the floor.
Mr. Rapozo: And it's that because there are differing opinions on
"shall" versus "may" and I think there's tons of it throughout the Supreme Court
and state courts throughout the country, is there a process that this county ... I mean
is there a process where this county could seek a judgment from the court on this
matter? Is there ... I understand there's a complaint for declaratory judgment, which
I'm prepared to move forward on if this rejection doesn't pass. But is that
something the county attorney's office could initiate?
Mr. Castillo: Then I suggest that you first start off with your
legal analyst and work from there and then I'll go look at that because... frame the
question and then I will assign a deputy county attorney to do the research on that.
Mr. Rapozo: I don't know what the time limit is on filing an
action for declaratory review, I'm not sure. But do you know offhand? I don't know.
Mr. Castillo: I'm sorry.
Mr. Rapozo: Okay, that's it. That's all I have.
Council Chair Furfaro: Thank you. Al, I was very appreciative how you
explained both sides and everything like that and so I mean the bottom line there is
lawyers only have a 500% batting average. One side win, one side lose, that's it.
That's how Glenn Mickens would measure it in baseball. You win some, you lose
some.
Mr. Castillo: My batting average was a little better than that.
SPECIAL COUNCIL MEETING -35- September 27, 2011
Council Chair Furfaro: Okay, listen, I'm having a real problem with this
long interpretation of shall and I'm applying it from a business standpoint. We
have sections in this resolution that talk about my jurisdiction to give performance
reviews, okay. But then there may be no wiggle room to reward people, okay. We
have sections in here that talk about who the appointing authority is for certain
positions in the council. But the way the salary commission wrote this, they're
making my appointing authority subservient to when the administration gives
raises. Those are a couple of my points and that's what ... you know I'm really
rationalizing because it's like the salary commission is starting to take away some
authority from this council for the people that have authority. By the wording in
here, I still should have that authority and I also might have to find myself every
time I come across the word "shall," I better get a legal interpretation. Hey, what is
this referencing? And yet I know my responsibilities are very clear in the oath of
office that I took. The primary responsibility for the budget lies with the seven
people right here and for us to have a very cohesive and appropriate budget review
and so forth, we need to deal with some dates and those dates have to ... I know what
I would say in the public process and I did it as a manager for 38 years. When the
chief engineer didn't make a date we agreed on to forecast the utility cost, I simply
said to him, "Would I miss you if you were gone ?" And that's why some of these
things apply here. We have a process for meeting deadlines to get to a very
comprehensive operating budget that reflects the mayor's mission, the things that
he wants to accomplish, the capital improvements that are there, the type of people
he wants to recruit, the kind of authority he has for people that report directly to
the mayor just as I have the authority for the people that report to me. And so I'm
having a challenge in the sense of really understanding that. To me, it's very clear
in 3.10 what my authority is and getting these things done on a timely basis. And
the dates are reflected in the charter. And guess who took an oath of office for the
charter? Right here. That's what the charter says, these dates. And if we don't
comply to those dates, other mechanisms go into place, and I want to thank Mona
for pointing that out because if we don't get five votes today to reject this, here's my
bottom line, this becomes the law. Am I right, Mona?
Ms. Clark: That's correct.
Council Chair Furfaro: That's exactly what happens today. And yet some
of the things that I feel as a seasoned manager I have some say on for the purpose
of the salary commission is about the non - bargaining unit people. The purpose of
the salary commission is about keeping our recruitment options, whether it's the
prosecuting office, the auditor's office and so forth, keeping us at least in a
competitive profile because they did the research on the salary grades. And here's
their recommendations of which we can't exceed, but we certainly should be able to
recruit people and be able to reward them incrementally for achieving certain goals.
But if this council doesn't get five rejection votes today, it's done and I have to look
at all this other stuff that I just pointed out to you. I think as chairman of the
council I'm losing some authority for the people that I supervise. I'm not meeting
certain oaths that I applied to when it comes to my responsibility for the budget.
And I just want to make sure you understand why I probably won't support this
today, but if we don't get the five votes, it's law. Am I right?
Ms. Clark: Yes.
Council Chair Furfaro: It's law. You can say that loud.
Ms. Clark: It will be the law.
SPECIAL COUNCIL MEETING -36-
September 27, 2011
Council Chair Furfaro: It will be the law even if I vote to reject it, so. I do
think we have some other people that want to testify. May I bring them up? We
need to take a break here in ... is it 4 o'clock? Where's the clock? I'm such a bad
habit after 10 years. Okay, right after this question we're going to take a break and
then I think we have Mr. Auna. Go right ahead.
Mr. Kuali`i: Aloha, Mona, thank you for being here. A moment
of privilege, I want to apologize for getting overly passionate at the last meeting and
maybe cutting you off at times and I apologize for that.
Ms. Clark: No problem.
Mr. Kuali`i: So I heard you make a statement that because of no
qualifying language, time is not of the essence. You had to have this language to
make it that time would be of the essence. But wouldn't you think that it's
understood that as a government operation and being that it's tied to the budget
that that's the intent of March 15 and time is of the essence whether additional
language... so you're saying it would require additional language to make the
timeliness legal, but ... is that what you're saying?
Ms. Clark: I think it's clearly directory. It's saying that this is
the goal that you should be striving for for the March 15 and I think that's probably
with reference to the budget.
Mr. Kuali`i: But you're saying if there was qualifying language,
maybe another sentence that says, it needs to be timely.
Ms. Clark: If there was a negative...
Mr. Kuali`i: So it's just lacking qualifying language in the
initial charter language.
Ms. Clark: Right, I think it could be more explicit, yes.
Mr. Kuali`i: But we do realize that salaries is a big part of the
budget and that the budget has a timeline.
Ms. Clark: That's a separate section.
Mr. Kuali`i: I'm getting off on non -legal questions again, sorry.
That's it. I'll talk later.
Council Chair Furfaro: Before we go on a break, I want to thank
Councilmember Kuali`i for extending an apology as well as I think everybody
realized that off the record I extended by authority as chair and I do want you to
know that in the future I will only recognize one councilmember at a time and we
will be trying to live more aloha when it comes to posing questions. And thank you
for all your work, but we're going to take a 10- minute recess.
There being no objections, the meeting was recessed at 4:23 p.m.
The meeting was called back to order at 4:36 p.m., and proceeded as follows:
Council Chair Furfaro: Okay, if you can introduce yourself, we'll open and
take testimony. Go right ahead.
SPECIAL COUNCIL MEETING -37-
There being no objections, the rules were suspended.
Vice Chair Yukimura was noted as excused.
September 27, 2011
JARED AUNA, Deputy Prosecuting Attorney: Mahalo, Members of the
Council. `O Jared Kamakakulani ko`u inoa. `O Hilo mai `oe. Deputy Prosecutor for
the Office of the Prosecutor, County of Kauai. It wasn't originally my intention to
testify today; however, there are a few points that have moved me today to come
here and testify on a personal life experience, and I also have copies of the two cases
that were talked about, Perry and Fasi, for the members of the council to review
because I know we've talked about it or they have talked about these two cases
today. And our position of the county prosecutors is that "on or before" has never
meant after. And I really think that it doesn't really matter, you don't need a legal
analysis of this for persons to understand that "on or before" will never mean after.
You know growing up in Hilo as I've stated earlier, if you didn't turn your
homework in on time, then you get an "F." And today as a prosecutor, if you don't
have your case prepared and your witnesses prepared, and you go to case, a person
walks free who commits a crime. So "on or before" it could never mean after and
whether it is coming from a local boy, Hawaiian growing up in Hilo or coming from
a prosecutor or anyone else, members of the council or public. That is the
interpretation. I don't think we really need Supreme Court info to analyze whether
"on or before" is going to mean after. And that is my testimony here today. I have
the cases for members of the council to review.
Council Chair Furfaro: Mahalo, Jared. Let me ask if there's any questions
for you. Members, do you have any questions?
Mr. Rapozo: I actually have a question for the captioner. Did
you get his name? No, no questions. Thank you.
Council Chair Furfaro: He was also saying that he's from the town of Hilo.
Am I correct?
Mr. Auna: Yes.
Council Chair Furfaro: Thank you. Okay, no additional questions.
Mr. Auna: Mahalo nui loa.
Council Chair Furfaro: Thank you. Can I see a raise of hands of anybody
else that wishes to testify. Mr. Mickens, come up. Mr. Taylor, are you intending to
testify? Not today, okay.
GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. So,
this is different, no mike. The two confusing items in this resolution for me on
page 2 are the words "shall" and the "March 15" date, which seems to be what this
whole thing is about. Paragraph three says, "first shall can be read in a non -
mandatory sense when a statute's purpose conflicts with the probability of a
compulsory statutory design." My question is if "shall" is not mandatory, then what
word or words could be used to make it mandatory. And if a date is put in the
charter that this reso now says is also not mandatory, what's the purpose of putting
any date in the charter or any document if one wants the date positive? I don't
know, it's just a little common sense. I thought the young man pretty much made
that case about turning your homework in or anything else. If something is a date
positive, I think it's going to have to be that way. It can't be, well, you're late so
SPECIAL COUNCIL MEETING -38-
September 27, 2011
we'll give you another day or two or something, unless it's a death or something
that ... but I suppose there could be something arbitrary there. But anyway, those
are just my two questions, Jay. Thank you.
Council Chair Furfaro: Any questions for Glenn? Having none, okay, is
there anyone else that wishes to testify? If not, I'm not going to take any more
testimony. But before I take a motion to vote on this, I would like to have the
councilwoman that made the motion. So we're back on recess, but we'll take a vote
when she gets back.
There being no objections, the meeting was recessed at 4:41 p.m.
The meeting was called back to order at 4:42 p.m., and proceeded as follows:
Vice Chair Yukimura was noted as present.
Council Chair Furfaro: Okay, we're back in session. Before we went into
session I indicated that it was my intent to have some dialogue on the motion and
call for the vote. So we've heard testimony from everyone that we had intended. I
would like to have the clerk here, for the purposes of having some dialogue about
the various outcomes of various votes as a reminder at this point. A motion to
receive will require four votes and that in fact will approve the item. If I then as
chair choose to take a second motion, which might be to reject, it will take five votes
to reject. I also want to say if the outcome is split, based on the fact that we just
have six voting members today, then the reality is the item gets deferred to the next
council meeting. But the next council meeting is on October 5, which is a day after
the deadline, so then the resolution goes into effect. And I think if I had it stated
any different way, the clerk would have corrected me. Did I get that pretty much
the same understanding, Mr. Nakamura?
Mr. Nakamura: Yes, Mr. Chair.
Council Chair Furfaro: Four votes to approve. If that fails, then I
entertain a second motion to end it, that would take five votes. And if neither pass,
we will not make the deadline for the next meeting until after the 4th and it would
automatically go into effect. So I am open to dialogue starting with Mr. Rapozo.
Mr. Rapozo: Thank you, Mr. Chair. Let me start off by saying,
this is nothing personal. It's unfortunate that at times we disagree, but I just want
to go on the record as saying this has, in my opinion, it has really nothing to do with
salary caps or salary ranges or how much who gets, and who's not in line with their
counterparts. For me it's really the integrity of the charter. This is a very
important document when you consider that our charter is really our constitution.
It is. It's the constitution of the County of Kauai. It's not just the charter. It's no
different than the State Consitution. It's no different than the U.S. Constitution.
And so I think our job as councilmembers when we take the oath to uphold the
charter, I think it means we have to protect that charter because she's not here to
speak for herself today.
This matter had been rejected by a 6 -1 vote on September 7, rejected because
at that point in time six members of the council felt that the March 15 deadline was
the deadline, that in fact "shall" was shall. A week later we get a motion to
reconsider because there was a county attorney's opinion that said "shall" wasn't
shall in Section 29.03. So the matter came to the floor and unfortunately the
rejection didn't pass. The rejection failed 3 -4 based on the attorney's opinion. Of
course, I didn't agree with the opinion of the county attorney and sought my own
SPECIAL COUNCIL MEETING -39- September 27, 2011
attorney's advice out of Honolulu and I spent the last four days in communication
with a constitutional law attorney up on Oahu who was quite familiar with the
"shall" versus "may" argument because it is one that has been used a lot. And there
are many cases that surround "shall" versus "may." And today we hear from the
law clerk from the prosecutor's office, who as well did his own research and
ironically his research, his findings and the findings of my attorney on Oahu are
similar, almost identical. They cited the same cases of Fasi and I understand our
county attorney, the deputy is saying it's irrelevant. I just happen to disagree. I
believe with all my heart that in fact Chapter 29, Section 29.03 was clearly written
to coincide with the budget process. And what's disturbing is that it appears that
we are really advocating and again, please don't take this in the wrong way,
Mr. County Attorney, but it's like we have no opportunity. We have legal analysts
in our office, but by charter they are not our legal advisors. We do not have a legal
advisor that could say, hey, Mel, let me go form some opinions on your side, how you
feel. Obviously there are because we have a lot of examples, but I don't have that
ability because the county attorney's office has already taken a stand. I could ask
for special counsel, you know, Mr. Chair, let's go get five votes and let's go hire an
attorney so we can go battle our county attorney. That's not appropriate in this
case. Why would we spend money? Again, if you look at the substance of the
resolution, it sets a salary cap that the department heads can pay less. Whether or
not this passes or not, nothing will change. The salary cap will still be there and
the department heads and the appointing authorities will be able to set the salary
below that, except for the mayor. So the only real issue we have here today is will
we fix the salary of the mayor at the amount in the resolution. I think it's about
$8,000. If the mayor doesn't want to take it, he can write a check back to the
county, donate it back, and that, I think, would be in compliance with the charter.
But again, that is just my opinion. Unfortunately I'm not an attorney. But I also
can read English and I also can read case law and I've had a really good education
over the weekend.
My hope is that Councilmember Yukimura will withdraw her request for the
receipt and Mr. Chair, you'll allow me to make my motion to reject in totality. I
think that is the only option we have today and I know Mr. Castillo and I had a
little dialogue about a complaint for declaratory judgment. That is the only place
that, in fact, a court can address this issue and come out with a finding out of court.
And I know Mr. Castillo did suggest we go through our legal analyst and go through
that process. Well, I feel uncomfortable doing that simply because the county
attorney's office has already established their position as far as this opinion. So for
me it would be fruitless to go to the county attorney that doesn't agree to go help me
get this in front of a judge. So my only other option at this point, Mr. Chair, is
really if in fact the motion to reject does not pass, we do not get the support for the
motion to reject should I even be allowed to make that motion, but even if the
motion to receive passes and this resolution is allowed to take effect, then I will
have no choice but to file an action in civil court and I'm prepared to do that. And
as an individual councilmember I'll do it and I won't ask for special counsel funds.
I'll do it at my own expense because that's how strongly I feel about this charter.
This is our constitution. This isn't a coastal zone act, this isn't an
ordinance... vacation rental ordinance. No, this is our charter and we must ... we
must keep that standard, the integrity of that charter at the highest standard. And
I am prepared to take this to court and I am prepared to file in two weeks. I don't
say that to threaten anybody, but I want you guys to understand how serious I take
it. And as awkward as it seems back in `ohana tax days where we sued ourselves, I
hate to do that, but I believe that strongly. I've never felt more strongly about an
issue on this council floor than I do about this charter because it is an attempt to
really weaken and make this charter flexible. And the charter, in my opinion, is the
steadfast document that guides this county and I'm going to ask Councilmember
SPECIAL COUNCIL MEETING -40- September 27, 2011
Yukimura that you withdraw your motion and I would ask, Mr. Chair, that I could
be allowed to make my motion to reject, and we'll let the votes fall where they fall.
Thank you.
Council Chair Furfaro
Ms. Yukimura:
Council Chair Furfaro:
Ms. Yukimura:
of the sequence of voting.
Okay.
Mr. Chair.
Vice Chair, the floor recognizes you.
Yes, I'd like to know the wish of the Chair in terms
Council Chair Furfaro: Sure, I've not been a man of many secrets, so let me
tell you what my wishes are. I wish to move forward on your vote, on your motion.
If you do not get four votes, then I will grant Mr. Rapozo the opportunity to make a
new motion to reject. That is within my authority.
Ms. Yukimura: Okay, then I think that is the better sequence
unless someone who doesn't vote... unless there's someone who'll vote for the motion
to receive if we go through the motion to reject first and it loses.
Council Chair Furfaro: Okay, I want to remind us again and I think I was
not corrected by the county attorney nor by the clerk, your motion to receive will
require four votes. The motion to reject will require five votes. And either way, if
we end up split down the middle, the reality is our rules say at our next regular
scheduled meeting, which is the 5th, the 5th is one day after the 60 -day allocated
time, so it would automatically go into effect if it doesn't get four votes in the
receiving or five votes in the rejection.
Ms. Yukimura: Okay, then I would ... I will not withdraw my motion
to receive so that we can vote on that first.
Council Chair Furfaro: Okay and I believe we had a second from
Mr. Chang. Am I correct?
Mr. Chang: Yes.
Council Chair Furfaro: Okay. You have the floor.
Ms. Yukimura: Will we have a chance for discussion now on the
motion to receive?
Council Chair Furfaro: Yes, we will.
Ms. Yukimura: And I have the floor.
Council Chair Furfaro: You have the floor and this is discussion time.
Ms. Yukimura: Okay, so after listening to both legal
interpretations, it's my personal conclusion that the resolution is not outright
illegal. So the only reason I would reject the resolution is for policy reasons and I
don't see any good reason to reject it. That means I will, as I have moved, I will vote
to receive because I think it's important to support the salary commission's
conclusion that the executive pay raises which amount to approximately $7,000 per
SPECIAL COUNCIL MEETING -41- September 27, 2011
year, in that range, for. mayor and department heads, is not appropriate when the
rank and file are being asked to take cuts in their compensation. And so I think it's
important for us to allow this resolution to take effect.
I, too, in the process of going through the history of the salary commission
and all the gyrations that we have gone through in order to understand what was
happening, I think it's been educational and good. I see the county struggling to
find an appropriate way to set executive salaries and I recognize that in 2004 when
the salary commission first met, they were very troubled by the pay inversion, that
is the depression of executive salaries, which was not allowing us, as the Chair has
said, to attract the kind of qualified people we needed, and they embarked on a
series of raises to correct that. We've accomplished most of those raises. The last
one, because of the economic circumstances, the commission has said we can afford
to defer it for awhile because in fact in the private market the disparity between
private and public salaries has been narrowing, and so the problem is not as great.
We are on our way to correcting it as we are able to and to allow the resolution the
stand will keep us on track, I believe, and is a fair way in addressing the gamut of
salaries that we need to look at. So for those reasons I will be voting to receive.
Council Chair Furfaro: Okay, Mr. Chang.
Mr. Chang: Thank you, Chairman. I was originally one of the
councilmembers that voted to reject this resolution and I was also one that was very
concerned because I believed that there were a lot of legal questions that were not
answered at that time and I was extremely concerned with that March 15 date and
I think we heard every argument about shall and may and shall is shall, may
is may, "shall" is not you have to, "on or before" not after. So thinking this thing
over, I have to respect the salary commission. I think I know most of the salary
commission members. Two of them were here today. One needed to leave. But I
never talked to any one of them, but I do believe that they are all upstanding,
they're very professional. I think that there was a very, very good thought process
and I've heard discussion that many departments are not being visited, if you will,
by the mayor or the administration, but I think it's maybe a good idea that maybe
the salary commissioners should actually take a workshop or an excursion to
actually find out what the various departments do and how you can better
compensate them for their needs.
In regards to the March 15 date, the shalls and the mays and what have you,
I think we got that clarification and I agree with Councilmember Rapozo that our
charter or she is not here, but if I'm not mistaken, Charter 8.04 Powers, Duties and
Functions, the county attorney shall be the chief legal advisor and legal
representative of all the agencies included in the county. So for myself, I need to
adhere to the advice of our county attorney and I will respect that.
Last week we had our opening, our blessing, our soft blessing for this
building and whenever in the days of the past I used to always hear elected officials
or those that have served the county say what a privilege and a pleasure it is to
work for the county. And this afternoon I sat and just marveled and made mention
that we are blessed and honored to be able to be elected officials here working for
the County of Kauai and I think that in the private sector many benefits, many
health benefits, even the payscale in the private sector has actually dropped down.
So for myself, I do believe that everyone deserves a raise, everyone works extremely
hard, but a lot of people are ... if you think to yourself a salary of $110,000 or
$105,000 or what have you, that's about twice the average worker and again I go
back to the rank and file. I just have to say that there were extremely troubling
times. We all got furloughed, including us. Many people did not get raises and as I
SPECIAL COUNCIL MEETING -42- September 27, 2011
mentioned, there were a lot of questions out there regarding whether we're going to
retain our TAT tax. I mean it was very, very difficult times. Tourism was down. A
lot of people weren't working. And many people weren't making their hours. So I
just have a very hard time ... you know, we all have car payments, we all have
mortgages, we're all trying to make ends meet. I mean food is a lot more expensive
now. When you travel abroad and you see what people can get for $50 versus what
we can get for $50, I'm just feeling that to me it's a pleasure and a privilege, and we
have choices where we want to work. And I believe that there's a lot of people that
have suffered out there and those are really the people that I think need the most
help, those that are on the bottom tier versus the top tier.
So I am going to be supporting this resolution and from being able to
reconsider and get a lot more clarity, I'm glad that I did get clarity because a
question was why are we reconsidering, shouldn't we have hashed that out. And
perhaps I should have learned or knew a little bit more, but based on the past
meetings that we've conducted, it's been like a full meeting and a halfday meeting
because there were so many questions that I think were left up in the air and I'm
comfortable where I'm at from what I've gathered as far as fact finding. So that's
just what I wanted to say, that I am going to support to move this salary
commission resolution on. Thank you.
Council Chair Furfaro: Okay. Mr. Rapozo already spoke. Councilwoman
Nakamura.
Ms. Nakamura: Yes, the past two votes I voted to reject this
resolution and part of the reason why I did so was because I was not clear about
the legislative intent. I recently grilled one of the primary authors of this salary
commission charter amendment and I am now very comfortable voting to receive it
mainly because I learned that the charter commission or this one person who sat on
this charter commission never contemplated a salary resolution coming before the
council subsequent to a budget approval. So while the intent was always to tie it
into the budget, this scenario was never contemplated. It was never seen as a lock.
So really what I would like to focus on is what we do moving forward knowing
that there is this gap in intent. Listening to all of the different sides, what I think
that we need to do is collectively learn from this as a body and move forward in a
way that's going to make it more efficient and more productive. And so what I
would like to recommend, I'm really glad to see members of the salary commission
here, really glad to see the managing director here and the boards and commissions
administrator, because I believe that we really need to have the salary commission's
recommendation prior ... before the budget deliberations begin on the administrative
side. I believe that March 15 is too late in the process and that if we can have the
salary commission's general recommendations by the end of the year, then during
the January to March period when the administration is getting firmer numbers,
budget numbers, that's the time where there should be some deliberation between
what's desired and the actual economic state of this county. So I think that's really
important, so that's what I would recommend. That's my learning from ... my
takeway from this process.
And I think that given the economic conditions that the mayor should have
the opportunity to state their case to the salary commission. I think the council can
state their case to the commission, but ultimately that salary commission's
recommendation should be made to the administration and that those numbers are
included in the budget that's forwarded to the county council. And I think we both
SPECIAL COUNCIL MEETING -43- September 27, 2011
made mistakes in this one process and let's just accept that responsibility and when
we move forward, let's just do it right next time around. So that's all I have to say.
So I will be voting to receive.
Mr. Kuali`i: Thank you, Mr. Chair. I'll have to vote against
receipt of the motion at this time because I, too, feel it's our duty and obligation to
protect the integrity of the charter and I feel very strongly that it is our
constitution. I also think that without respecting the deadline of March 15, then
different branches of government are not supporting the council in our obligation to
set the budget and to put things in place in a timely ... put the budget in place in a
timely manner. And clearly when the salary commission did their work in
November and this council, except for me with Councilmember Kawakami at the
time, either took action or did not take action within the 60 days, then it was
established; it went into place. That that happened and that became, so I don't
think the economic conditions changed in the last six months. So all this talk about
the economic conditions that we all agree upon, that it's been difficult for many
years now and that no one should be getting raises at this time. But the salary
commission recommended these increases and the council approved them either by
taking action or not back in November and that went into play in the last budget
cycle, which on July 1 went into effect. Now whether the money was put into the
budget, that resolution then became law, I guess, and it took effect on July 1. So
now we're passing another resolution and it appears that because there's no
qualifying language about the timeliness and I guess no qualifying language on
when the salary commission can make resolutions. They can make resolutions all
year round which impacts the budget, but doesn't support our work, our most
important work as the council, with the most important line item of our work, the
budget and salaries. I mean clearly I think we're going to a place that is only going
to create more problems and I just cannot support that because it would be wrong. I
feel strongly that this was intended to be part of and to coincide with the budget
process, and that in the future if it requires additional language to make it so, then
I would work towards that with a charter amendment, if that's even necessary, if
that's what it takes.
And then another point was, too, I think throughout this process I think that
I was disappointed with the county attorney not representing me, like
Councilmember Rapozo had mentioned, and coming in with only one side of the
argument. And I saw clearly that Deputy County Attorney Clark was here to give
the argument for the salary commission, but I expected some information from our
county attorney and it was information that was numerous. I found a lot of
information myself with different case law and hearing everything that was
presented, I didn't think it was necessary to present additional information.
And then also I was very uncomfortable with the numerous cautioning by the
county attorney and I think it had the effect of making me step back and be a little
bit fearful and I thought I witnessed that again with the young new attorney with
the county attorney interjecting twice and stopping him and saying, are you sure,
you're really sure now, you'd better go check if you want to do this. And all he was
doing was testifying and giving us additional information and this council has
argued just last week how important it was to get more information. And I had
argued that yes, of course, but with more time we can get even more information.
So what ended up happening in this last week and I appreciate that opportunity is
that we were able to get more information and this information makes me even
more convinced that my obligation is to vote no on the receipt at this time.
Council Chair Furfaro: Okay. I'll give a you a second short time before I
speak. Go ahead.
SPECIAL COUNCIL MEETING -44- September 27, 2011
Mr. Rapozo: Because I think it's important that I wanted to
clarify that the salary commission did their job and I really appreciate what the
salary commission does. My no vote, by no way, shape or form is to be construed as
dissatisfaction of the salary commission because I believe you guys do a heck of a
job and I'm very happy with what you guys do.
The other thing I want to clarify is and I hope the paper can get this because
the resolution, if passed, doesn't raise the salaries. I mean if rejected. If the
resolution is rejected, it does not raise the salaries. The mayor's salary will be
increased, but all of the rest, the department heads will have an opportunity to
keep it at status quo. But I don't want the perception, the public perception to be,
oh, he rejected it because he wants to give everybody a raise. That's not what it is.
I said earlier in my testimony, this ... my whole purpose in this issue has nothing to
do with the substance of the resolution, but the charter. We have to remember this
process, this process that occurred after March 15 was initiated by the
administration. It was initiated by the mayor via a communication to the salary
commission. The salary commission met based on the receipt of that letter and
their meeting resulted in the administration drafting the resolution, not the
commission. And that resolution came back to the salary commission and it got
approved or adopted and then it came to us well after the March 15 deadline. So
just that, Mr. Chair, I wanted to clarify those two things that in fact the salary
commission is not at fault. They did what they were instructed to do and the fact
that the rejection of this resolution would not increase salaries. I want that to be
perfectly clear for the record because I can see the hate mail tomorrow and it's just
not the case. Thank you.
Council Chair Furfaro: Since Mr. Rapozo wanted to speak a second time, I
just want the members to know that I was going enforce our rule. Now three other
people have wanted to speak a second time. No? You may have your second time.
You may have your second. You may have your second time. No more after that. I
need to speak. Vice Chair Yukimura.
Ms. Yukimura: Thank you, Mr. Chair. I just have three points.
We all agree, I think, that the process must take into account the effect on the
budget. Ironically by allowing the resolution to go into effect, we are aligning it
with the present budget and if we reject the resolution that will produce
discrepancies and a deficit in the budget. I just wanted to point that out.
Number two is this infamous Section 2 in the resolution, I believe, could be
clarified. I think Mr. Nelson made a good point. But with the "shall" being
directory, the salary commission could do another resolution to clarify that the
freeze is on the cap, if that is what they mean. They may have some other
information that I don't know about, but anyway that's one other point I wanted to
make.
And my last point, I really am sorry that I have to make this, but I have to
make it for the record. I believe that the clerk's 2009 pay increase was not proper or
legal, that the charter was not followed. And the resolution before us accepts the
2009 increase for the clerk as a given. I thought about making a move to reject,
which we can do, reject in part this resolution to indicate my disagreement with it,
except that the 2010 resolution then stands and by circumstances the original
salary stands. So there's really no use to make a motion to reject. But I have to, for
the record, say that my receiving of this resolution and my failure to move to reject
as would normally be the way to indicate my position is... none of that indicates that
I accept this provision, this particular part of the resolution.
SPECIAL COUNCIL MEETING -45- September 27, 2011
Council Chair Furfaro: Okay, Councilmember Nakamura.
Ms. Nakamura: If the motion to receive passes, I would agree with
Councilmember Rapozo that the period between July 1 and October 6, 2011, during
that period of three months and six days, that the mayor's budget, I think we need
to take a close look at what his salary should have been and to follow the charter.
Council Chair Furfaro: Councilman Kuali`i.
Mr. Kuali`i: Like Councilmember Yukimura, I had concerns
about Article 2 and my concern has to do with the... and I think I even read it in
minutes of the salary commission meetings, the concern over what's being put into
effect and the justifications for the freezing of the prosecutor's salaries for four years
or longer is based now on information from four or five years ago and then we did
hear from the prosecutor that she never was approached, she was never a part of
that decision making. In the last week or so when I requested documentation
for ... the support for why things are the way they are, I didn't really get anything
and in reading the minutes, I didn't get ... because I thought at least in the minutes I
would be able to read about all the discussion and surmise how they came to those
decisions. So I'm ... the way I want to participate on this council is to have the
information so that I know that the decisions I'm being recommended to make is
based on ... that's not saying that the people in the past haven't done a thorough job
or anything, but if you did a thorough job, feel free to share the information and I'll
skim through it and then that'll help me support that and I would have had a lot of
questions based on maybe what I would have had. But all I received was a couple of
job descriptions and then I looked at the agendas and didn't find a thorough
discussion and it may have happened four years ago. That's the other thing. In the
recent minutes I did see some salary commission members mention that, that it
was... is that should we be doing that all over again. Thank you, Mr. Chair.
Council Chair Furfaro: Mr. Chang would you like to wala`au a second
time? Okay, I guess I would like to speak now. And first of all the message to the
salary commission is a really important one. You know the difference between deja
vu and deja veau. One is we've seen it before and the other one is the baby cow
sees. It's like shall and may, you know, these interpretations. But I want to say,
contrary to what you might think, Mr. Kuali`i, there's two of us that were here back
in November, okay. And we got a salary resolution in November for the purpose of
preparing the council for the budget on March 15. Would you come back with a new
one April 18 and a new one on August 3 and so forth? Please recognize our need to
have some continuity. So this was a real deja vu. We've seen this before. Oh, I
thought we had an understanding about the need to have the date in preparation of
preparing the budget.
The next thing I want to say is this continuity is extremely important and the
salaries that you establish is the cap. The mayor has the privilege of recruiting
people and paying them less than the cap, okay. He has that authority. But in this
piece over here, the salary commission is basically saying that the council now
cannot exercise its performance reviews with our people until the mayor's people
catch up. So all of a sudden what you've done is you've transferred the ability of
this council for the handful of people that we review, it's now subject to a second
criteria which is we've got to wait until the mayor moves forward.
The role of the salary commission is to establish competitive salaries for
managers. We understand the economic time that's here for our rank and file, but
the only vote we have in the labor negotiations is the one vote the mayor has on
SPECIAL COUNCIL MEETING -46- September 27, 2011
that. This council can convey to him that we do not approve of furloughs, that we
do not want people to be on holiday, that we do not want to take a 5% pay cut, and
we have made that statement and in full credit to the mayor, he has successfully
negotiated those supplemental agreements with the bargaining unit. The role of
the salary commission is such that you're making us recommendations about
finding the best people we can within a competitive salary ranges for the skill level
that they have. I think a primary piece of that is in fact the difference between the
prosecutor's office and the attorney's office.
I feel that some of the verbiage in Section 2 actually removed the authority
that this council has by saying we now have to wait to do anything with
performance based on the mayor getting salaries caught up. I don't think that's the
appropriate jurisdiction for the salary commission to be getting into and I'm only
taking this time to share my concern on that note. There's verbiage problems with
the terms "to be frozen on July of 2013." Now I went to public school in Waianae.
Let me tell you, if you tell me on that date, that's in the future. That's not in the
current piece. And that's where I have my challenges. I want to reiterate that I
believe the mayor has the authority to pay his staff accordingly to the salary caps
authorized by the salary commission and we should have the same when it goes to
our staff. We shouldn't be subject to the status quo of the mayor's moves. This
council has some important tasks and it is the council's authority for the budget.
Therefore, I'm asking the salary commission people to consider that in our second
request, when only Dickie and I were on the council, that please get us your salary
recommendations in ahead of the March 15 deadline. Because on the flipside, if you
start making salary adjustments after that, then you folks have to come in with a
budget amendment. You have to amend the budget. We're working on a clock.
I think I read 3.10 in the charter a number of times that references the
council's authority given in the charter. I think the charter is... that's the
constitution of the County of Kauai. The legal people in front of us today were
reading things that dealt with case law here. I never heard one of them say how it's
interpreted in the constitution or the charter. I took an oath to the charter, not to
the variances and the laws and the ordinances and so on. I took an oath to the
charter that said I was going to follow this procedure.
And so I want to say I appreciate everybody's work. I just look at it from a
management standpoint that there's some good practices that we need to fall on
here and start practicing. And Councilmember Nakamura talked about earlier
than March 15. We've had that discussion. That's how we got the November 3
piece for this year.
Now I also have to let you know that I made an interpretation that I thought
I could go back and respectfully honor another option with Mr. Rapozo's piece, but
the clerk pointed out to me after researching the charter that because we have an
absentee here, at the council meeting if its members are evenly divided, in other
words if we get to 3 -3 tie here, on the main motion and there are insufficient votes
to carry any main motion because of the absence of a member, then the item shall
be made and get the attention of a Special Order for the next regularly scheduled
meeting. So if we end up at a 3 -3 here and our next regularly scheduled meeting is
not until October 5, we have missed the deadline for the action. And therefore, the
recommendation by the salary commission will be approved. I can certainly count
votes at the table here, looking at statements from Mr. Chang, Councilmember
Nakamura, and Councilwoman Yukimura. So obviously I have shared my concerns
with this resolution and we may actually end up in a 3 -3 tie and it can only be in
our next scheduled meeting and therefore, it will be implemented. So on that note,
may I call for a vote since I have a motion and a second.
SPECIAL COUNCIL MEETING -47-
September 27, 2011
The motion to receive C 2011 -249 for the record was then put, and failed by
the following vote:
FOR RECEIPT: Chang, Nakamura, Yukimura TOTAL — 3,
AGAINST RECEIPT: Kuali`i, Rapozo, Furfaro TOTAL — 3,
EXCUSED & NOT VOTING: Bynum TOTAL —1.
Council Chair Furfaro: Thank you very much. This special meeting is
over.
ADJOURNMENT.
There being no further business, the meeting was adjourned at 5:
Respectful ttede-,i
lc /wa Deputy County