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HomeMy WebLinkAbout01-12-2011 Council Meeting with attachments COUNCIL MEETING January 12, 2011 The Council Meeting of the Council of the County of Kauai, was called to order by the Council Chair at the Council Chambers, 3371-A Wilcox Road, L3hu`e, Kauai, on Wednesday, January 12, 2011 at 9:06 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum (present 9:10 a.m.) Honorable Dickie Chang Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro, Council Chair EXCUSED: Honorable Tim Bynum Honorable Derek S. K. Kawakami Chair Furfaro: Thank you Mr. Clerk. Mr. Nakamura: Next matter is approval of the agenda. APPROVAL OF AGENDA: Mr. Chang moved for approval of the agenda as circulated, seconded by Mr. Rapozo, and unanimously carried. Chair Furfaro: Thank you. Mr. Nakamura: Next matters is approval of the minutes of the following meetings of the Council... Ms. Yukimura: Oh, Mr. Chair... MINUTES of the following meetings of the Council: Council Meeting of November 24, 2010 Inaugural Meeting of December 1, 2010 Council Meeting of December 8, 2010 Public Hearing of December 15, 2010 re: Bill No. 2385 Public Hearing of January 5, 2011 re: Resolution No. 2010-59 Ms. Yukimura: Mr. Chair? Chair Furfaro: Yes. Ms. Yukimura: May I ask that the Inaugural Meeting of December lst be pulled from this list, so that we can vote on it separately please? Chair Furfaro: Okay. There's been a request to pull the Inaugural minutes from this approval but I do need a second. Mr. Chang: Second. COUNCIL MEETING January 12, 2011 2 Chair Furfaro: Thank you. So noted, we'll handle it as a separate item at a later date. Ms. Yukimura: Alright, thank you. Chair Furfaro: You're welcome. Ms. Yukimura: Um. So what is the motion? Mr. Nakamura:' I believe Council Chair the motion may be to defer the minutes of the Inaugural... Ms. Yukimura: But there was no motion right? Mr. Nakamura: Yeah, there's no motion now because I believe the motion for approval was for everything except for the Inaugural Meeting December 1, 2010. Ms. Yukimura: Oh. Mr. Nakamura: So now. Ms. Yukimura: Okay. Mr. Nakamura: That's standing by itself Mr. Chair and may be the motion may be to defer it either to the next meeting or to the end of the agenda, depending on the... Mr. Rapozo: I have a question Mr. Chair. Chair Furfaro: Well let's get the motion cleared first and then I'll give you the floor. Ms. Yukimura: But before we defer... Mr. Rapozo: Yeah, I want to... Ms. Yukimura: I think. Mr. Rapozo: I guess my question is... Ms. Yukimura: Why? Mr. Rapozo: Yes. Ms. Yukimura: Yes. I can explain that. Mr. Rapozo: And I guess we can take each set of meetings individually but I'm just curious if you need more time to read them or... Ms. Yukimura: No, no, no. COUNCIL MEETING January 12, 2011 3 Mr. Rapozo: You had a problem? Ms. Yukimura: Actually, at that meeting both Councilmember Bynum and myself asked that written statements be incorporated as part the record and they are not part of the record at this point. So I would like to have them included as part of the record so that we could then approve them. Chair Furfaro: Understood. Ms. Yukimura: So, there is still a motion pending to approve... Chair Furfaro: I think we... Mr. Bynum was noted present in the Council Meeting. Mr. Nakamura: Everything... No I believe... Ms. Yukimura: No, we didn't get to a vote. Mr. Nakamura: Oh I'm sorry. Ms. Yukimura: Mr. Chair how about I do it this way that I move to approve all except the Inaugural Meeting at this point. Chair Furfaro: Sounds fair and reasonable and we have a second from Mr. Chang? Mr. Chang: Second. Ms. Yukimura: Thank you and we can act on that and then act on the Inaugural minutes so... unless there's any discussion, I guess we can vote on the... Chair Furfaro: Well let me get the clearance from a procedural standpoint, is that acceptable Mr. Clerk? Mr. Nakamura: Yes Mr. Chair. Chair Furfaro: Thank you. Okay so we are voting on all except the Inaugural Meeting, all those in favor please signify by saying aye. Ms. Yukimura moved for approval of the minutes as circulated, except the Inaugural Meeting of December 1, 2010, seconded by Mr. Chang, and unanimously carried. Ms. Yukimura moved to defer the Inaugural Meeting Minutes, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: On that note, before we go to the next item and our meeting isn't in order, the Vice Chair has asked me for a personal moment of privilege. COUNCIL MEETING January 12, 2011 4 Ms. Yukimura: Thank you. Chair Furfaro: And I will recognize you Council Vice Chair Yukimura. Ms. Yukimura: Thank you Mr. Chair, I just want to ask that we join the Nation for a minute of silence before we start our business in thoughts of a concern for Congresswoman Giffords who was critically wounded and for Judge John Roll and nine (9) year old Christina Taylor Green and the other four (4) that were killed and the thirteen (13) others who were injured or wounded and their families and our Country. So if we could just be silent. (Moment of silence) Ms. Yukimura: Thank you. Chair Furfaro: Thank you. Mr. Clerk, we'll go to the next item. Mr. Nakamura: Next matter Mr. Chair are communications, first communication is communication C 2011-24. COMMUNICATIONS: C 2011-24 Communication (1/05/2011) from Council Vice Chair Yukimura, requesting agenda time for Cisco DeVries, Creator of Berkeley's Property Assessed Clean Energy (PACE) program, to brief the Council on Berkley's experience with PACE. Chair Furfaro: Thank you very much. Councilwoman, I believe Mr. DeVries is in the stand there but I'll give you the floor first. Ms. Yukimura: Well Mr. Chair thank you, with your permission if we could suspend the rules. Chair Furfaro: Yes. There being no objections, the rules were suspended. Ms. Yukimura: Mr. Chair, members of the Council and friends in the public, we're very privileged to have Cisco DeVries who's on vacation, on our island but who has graciously given up some of his vacation time to tell us about the PACE program which is, which he helped to create in Berkeley, California, and it is a program that is recommended in our Energy Sustainability Plan. And so we're very privileged to have him here to tell us about how it was created and how it works and things to look for or... well lessons learned. So Mr. DeVries. CISCO DEVRIES: (Inaudible). Chair Furfaro: Excuse me a minute, the rules are suspended for this presentation, and for the audience, there are copies of this presentation on COUNCIL MEETING January 12, 2011 5 the podium. And we are delighted that you are here, the floor is yours, rules are suspended. Mr. DeVries: Thank you Mr. Chair and thank you... my name is Cisco DeVries, I'm the President of Renewable Funding and it's an honor to be here today, it's a real privilege to be here in Kauai and again for a visit, and I really appreciate that you chose today, my visit to this meeting, to have a really rainy blustering morning... and my family appreciates that as well. I'm here in... there's a presentation that should be coming up here and what I'll do is give an overview for... just ten (10) or fifteen (15) minutes of the PACE program and what's been happening around the Country both with programs and some of the regulatory issues in Washington and the path forward from there. As the Vice Chairwoman has mentioned that the Kauai Sustainability Plan does recommend PACE as one of the measures to (inaudible) sustainability on the island, and what I thought I would do today is briefly give a primer on property assessed clean energy, some examples from programs, talk about the regulatory issues, some issues around it, the lessons learned from PACE, and what's coming next. If there are any questions or issues that you'd like, please don't hesitate to interrupt me, of course, and at the end I'm happy to answer any questions or help with any discussion. Many of you are familiar but just in case you're not, I'll explain briefly what PACE is... Property Assessed Clean Energy is a program that allows property owners to place renewable energy or energy efficiency projects that are permanently fixed to their property, on their property, have it paid, the upfront cost paid for, and then repay the cost as a line item on their property tax bill. There are a variety of mechanisms and tools to do this under law in different States but the basic concept is the same. PACE is again here on this screen. City or County can create a type of. financing district, usually an assessment district or special tax district or something similar to that. Property owners voluntarily sign up for financing, they install energy projects. The proceeds from either revenue bond of some type or other financing and there are a variety of tools to bring money to this. There are private capital or public capital. The property owners then use those funds to pay for the project that was installed and then the property owner must repay the costs through their property tax bill for a period of time and that can be five (5) years, ten (10) years, twenty (20) years, depending on the nature of the project and the repayment period. Vice President Biden probably said it more eloquently than I did, but this announcement was from the White House in October 2009, launching a National effort to expand PACE programs across the Country and said basically the goal is to allow property owners to make it easier for people to borrow money for energy retrofits by encouraging communities to give you the option of paying the expense of retrofitting your home by paying it back on your property taxes. A couple of months later, Scientific American magazine... there has been a lot of media and press about it. But this one they listed their top changing I'd ideas and top of the list was PACE, the idea to allow property owners to pay for the cost as they are going over time, much the way you pay your utility bills now. I spent five (5) years as the chief of staff to the mayor of Berkeley, where the idea was born and one of the two communities to pilot PACE programs and the other was Palm Desert, California, and I like to mention both, because it's a conservative community in the desert area of southern California. And of course, Berkeley is well-known for not being like that at all. Both communities launched programs in i COUNCIL MEETING January 12, 2011 6 short order in 2008 and both were very successful, popular programs. I think what it speaks to is the program is not ideological, but an approach that governments around the country have used and that means that twenty-three (23) States have now passed legislation authorizing PACE, those come from Texas to Florida to California to Vermont, its a very broad swath. So let me talk about the programs. I briefly explained the concept of PACE. The program was put into operation in Berkeley. It launched as a pilot in November, 2008 and it was to test the model using entirely private capital. No public dollars were used and I can say having been there, I was required to find grant money to get the pilot going and then to find private capital for the program itself. They did forty (40) applications that were allowed, 40 slots. Those sold out in nine (9) minutes once the program went live. Quite interestingly a number of folks used the programs and you see the mayor with the second person to use PACE in front of her solar panels in Berkeley. One interesting thing that came out of the Berkeley program, a number of people used the program and financed with it and it was very successful, but it was successful in helping folks go solar or do energy- efficiency improvements even if they didn't finance through the program. 85% of the participants in the program did go ahead and get solar and said this was the program that was the reason that they went ahead and got solar, even though not all of them used the financing in the end. It was one of the more interesting and successful parts of the pilot and one thing we learned about a lot in the launch. Berkeley's program went to a statewide program that included 144 cities and counties, covering 12 million people, and we'll talk about that program that is on hold with some of the regulatory issue issues that I will talk about in a minute. The largest PACE program in the country is Sonoma County, California. It launched in March of 2010. It has dispersed $40 million to over 1300 properties. The benefits have been in both the county and around, about 330 jobs created. Three megawatts of clean energy produces and one stat I didn't put on there that was interesting, Home Depot reported that the Home Depot in Sonoma County saw 74% increase in the sale of energy-efficient equipment after the program launched. One of the most important things that this program has helped us to show there has not been any defaults on homes with PACE assessments on them. And, in fact, the tax delinquency rates for homes with PACE is 60% lower than the average in the county. So the underwriting tools and property owners participating have done a great job of making sure that the properties participating are repaying the costs and did get good projects. That program is still in operation today. San Francisco's program launched in April of 2010. I wanted to mention... the reason I'm mentioning Berkeley was the first, and Sonoma is the largest currently ongoing program and San Francisco's program was the largest program by population to launch at the time. San Francisco's program is interesting in that it moved away from allowing folks to choose any particular measure to install and instead, essentially required an energy evaluation be done on the properties, so that the appropriate measures were identified. So properties that would be good for solar could get solar or solar hot water or solar pv or energy-efficiency retrofits. For example, ceilings the ducts of homes or energy-efficient windows. This approach was taken to help property owners make the most cost effective choices for their homes. The program launched in April 2010. The first month of the program there was a set of marketing efforts; we could talk more about them if you're interested. We did a lot of targeted work on this program to make sure that we understood which property owners were most likely to participate, what the issues were that were driving demand, and sometimes in many cases, even in San Francisco, not COUNCIL MEETING January 12, 2011 7 what we expected. It was not necessarily an environmental message, but an economic message with specific property owner characteristics. About eighty (80) contractors approved into the program, nearly nine thousand (9,000) property owners contacted the program in the first month, and we had one hundred thirty (130) applications. It was quite remarkable to have a hundred and thirty (130) applications because you couldn't apply until you had done an energy evaluation and that meant folks had done their evaluations in preparation of the launch of the program. What happened after the first month is a great question and unfortunately, this is where I get into some of the more difficult parts. What happened was while PACE had got a green light from the federal government, the White House had issued a policy frame work and the U.S. Department of Energy issued $150 million in funds to support PACE development around the Country, there were some issues that have come up with Fannie Mae, Freddie Mac, and the federal housing financing industry, this is related to residential PACE not commercial but I can talk about commercial, in a few minutes. The issues are essentially this... Fannie Mae and Freddie Mac create the rules that most home mortgages use for around the Country and their regulator is FHFA. FHFA is a new organization, it was created in 2008 to watch over risk in the mortgage system; we all know what had happened leading up to that and what continued to... what the circumstances around the housing market even today. The question that had come up was this is a tax or assessment lien on a property. There are 37,000 special tax and assessment districts in the country that use senior tax liens in the same way PACE did, but as people were looking at things new, a lot of concern about the housing market and FHFA is a new program and they put forward a set of measures to say that we want PACE to be on hold with the senior lien entity rate on the residential properties, because we're concerned it might create risk in the system or create risk to the folks that own the properties. Now the data from programs said that is not a problem. The White House and the Department of Energy's efforts have been to create enough programs with data to show it would work or if there had been issues to allow the programs to stop. However, before the programs were able to fully get up to speed, these issues have come up with FHFA and most programs are on hold on the residential basis. Not everyone, Sonoma and a few others with disclosure are going forward, but for the most part because you could put a property owner at risk with default of mortgage, people have put these on hold. There have been a lot of efforts underway through Congress and the Administration and the Courts to resolve these issues and there are a number of lawsuits, including California that you see on the screen. They have begun their way through the courts and there will be twists and turns that will take some time. Litigation is both about PACE itself, but because it appears to be the first time that a federal regulatory agency or mortgage company have tried to regulate the use of a tax or assessment power on a local government and that is a concern that the Attorney General in California raised around PACE. There was legislation, bipartisan legislation was introduced to allow pace to move forward. It did not get through, but it will be reintroduced to allow PACE to go forward and negotiations and conversations continue, as well. At the moment my point is that there are serious issues with residential pace, particularly if you are using a first- position lien., which is what most programs do use.and we need to get these resolved for folks to come forward or there need to be work-arounds that allow for other types of lien priority which affect the ability for private capital to come in, but allow programs to go forward. COUNCIL MEETING January 12, 2011 8 Let me talk about a few lessons from PACE and then I will talk about what is coming next and that will be the conclusion of my brief presentation. The first thing is that the data indicates that PACE works and that it did in fact create demand, it was interesting, people were interested in it. We have done a lot of surveys and focus group work and it helps to get people over the upfront cost hurdle to doing energy-efficiency or renewable energy improvements. It brought private capital to fund projects and that we haven't had defaults yet. The data so far is very promising about defaults and delinquencies being far below what you would expect. Second, and I mention this with Berkeley, that PACE was very important beyond the financing. We have seen this in Boulder County's program, which is quite successful, and other programs that a lot of people found a PACE program helped them understand what to do with their home and got them mentally over the upfront cost issue. A number of things helped to spur people to move forward and find qualified contractors. So those things meant that a lot of demand was generated even beyond those that financed. And we're trying to now in other programs, as we're waiting for pace to hopefully come back, other programs are using some of the things that we learned to move forward with other financing and other tools that help people move forward with programs. For example, a program in California called energy upgrade for the State of California, which is an attempt to use a lot of work and lessons learned from pace and keep the momentum going, hopefully with other financing will be available and hopefully pace is available again. Third, this is a really key issue and there is nothing that you could do here about this, necessarily, but it's important to note that one of the key issues with pace was not the lien position, but when a home is underwritten they look at the cost of ownership as principal, interest, taxes, and insurance. So they see your tax go up, they see the assessment on your property tax as an increased cost of ownership of the property. However, there is no utility bill or energy cost in that model. So even if as a regulator or Federal Government or Fannie Mae or Freddie Mac, there are major costs, but they can't see them. They are invisible. So a home with $1,000 a month utility bill will be underwritten the same way as one that has a $50.00 a month utility bill. That means that PACE and these other works we're trying to do is a tough sell because their equation doesn't see it. So there is work underway in Washington to get energy costs into the underwritten system so at least it's visible and that should help people in resale of homes that have been made more energy-efficient. You can say there is some standard by which this home will be cheaper, less expensive to heat, cool, power, heat water, et cetera. The last is we learned a lot about effective communications; that even with folks who report being very environmentally minded, it's a big hurdle to get them to spend money on energy-efficiency. And talking about this and explaining the benefits and how people understood it was very important. So there were key pieces we learned and I will give you two that I found were interesting. People don't like the word "retrofit." They think of earthquakes and it's a term that I'm comfortable with, but it's not one that people generally understand. The second is "audit." In terms of energy audit, boy that was ever a bad idea; people think of the IRS or other things but they don't think of making my home a more pleasant place to be. So a couple of key language tools that I can share with you some of the things, if you are interested. What comes next? Commercial PACE is moving forward in a number of programs. It, too, held up and people waited to see. There are some potential regulatory hurdles with commercial pace, but so far, it is moving COUNCIL MErTING January 12, 2011 9 forward. This would allow for office buildings, hotels, retail to use pace as a financing tool. It has a particular advantage in the commercial sector in terms of doing a bit longer term repayment allowing passing some costs to tenants, potentially. So there are elements of commercial PACE that are interesting. San Francisco, Los Angeles, Washington, D.C. are some of the communities moving forward with commercial PACE programs. The federal government in the absence of PACE is trying to help put something else in place that will help on the margins. This is the federal housing administration power saver program, a partially government-insured home improvement loan. They are accepting from banks that want to service communities. They are accepting applications until the end of this month for their pilot program, which will go two (2) years. This is up to 90% guaranty of the loan amount for each property owner that would be part of the power saver loan. That is help from the federal government that could provide financing. Thirdly, unsecured a term you use if have a basic income or credit check used for financing and there is an effort underway to standardize unsecured financing and create a secondary market to allow for cheaper financing, in the same way credit cards and car loans. The hope is to get a lot of work going on to make that move forward over the next few months. So with that I will conclude my presentation. Again, I appreciate the opportunity to be here. It's a real pleasure and thank you for the leadership you have put forward in your sustainibility plan, which is quite impressive. If there are any questions or discussion, I'm happy to participate. Thanks again. Chair Furfaro: Mr. DeVries, thank you very much. We have some opportunities here, as the staff turns on the lights, I am going to allow the public to testify. So in case they have specific questions and then I'm going to ask you to come back, so that the Council can frame some questions for you. Mr. DeVries: Sure. Chair Furfaro: That way we've given the public an opportunity to get a little bit more familiar with PACE and if you don't mind and it is still rainy, so I'm sure the family might understand of us taking advantage of the bad weather and your visit. Because we are going to hopefully have a better day later. Mr. DeVries: I look forward to that. Chair Furfaro: Let me keep the rules suspended to see if there is anyone in the audience who wants to focus a question. If you could just take a seat, we certainly appreciate it. Diane, please come up, the rules are still suspended. DIANE ZACHARY: Thank you very much. Diane Zachary with the Kauai Planning and Action Alliance. I'm so appreciative to Mr. DeVries for sharing this information with us. I have been reading about PACE for a long time, and certainly saw its involvement in the energy plan and to hear how.it's working is what we really need to know and what the drawbacks are and what the barriers are. I have a couple of quick questions for him and probably others will emerge. One, if he could clarify "senior lien," so we're clear and also, a lot of people are used to getting tax credits if they put pv on their roof, there are State and Federal tax credits available as an incentive. What happens to those tax credits under the PACE program? COUNCIL MEETING January 12, 2011 10 Chair Furfaro: Thank you very much. We'll add that to our list when he comes back. Anyone else who would like to come up? Mr. Taylor? KEN TAYLOR: Chair, members of Council, my name is Ken Taylor. I don't so much have questions, but I have looked at this program for quite some time now and I believe it's a fantastic program and an opportunity to move the community forward with getting off of oil, which is something that we really need to do. And I think this is an opportunity to start the process of adopting this program here on the island to move us forward in this direction. I would also like to say that it's my understanding that this program is going to also be presented at Apollo Kauai tomorrow evening and if there are others in community who have questions or want to get more information on this, they should attend that meeting. I believe it's 6:00 tomorrow evening in the Planning Commission hearing room. So I just am really thrilled that we have this opportunity this morning and certainly thank the presenter for being here and taking time from his vacation time. But we benefit and I thank him for that. I hope that we can collectively move forward with putting this kind of project in place. Thank you. Chair Furfaro: Thank you, Mr. Taylor. Is there anyone else before I bring Mr. Devries back? Thank you very much. I also want to note for the record we have two (2) written testimonies. Mr. Devries, we pretty much had two (2) questions and one statement. If you could share that response, and again, the meeting with Apollo Kauai is tomorrow night, 6:00 p.m., at the Piikoi Building. Thank you for coming back, go right ahead. Mr. DeVries: My pleasure. The two (2) questions were both excellent and the first is related to what is a "senior lien?" I should have mentioned that, but thank you for the opportunity to clarify. As I'm sure you all know here in the Council, but it's not something that most folks spend their time with. When a government acts to pursue a public purpose, it has the authority to place an obligation on a property that is senior to all private debt, this is the way the property taxes and other things work that in the event that the property goes into default or foreclosure, the unpaid portion of property taxes get paid first, not the entire amount of future property taxes but those that have not been paid for the last year or two (2) years. And in the case of PACE, it adds an assessment or property tax increment and it goes on the roll in a similar way in most of the programs, but not all. It is placed on the tax roll in a very similar way in the event that the property does default, that the unpaid portion of the taxes over the last year or two will get add into the other unpaid property taxes and will be paid at the time the foreclosure goes through and the property is sold. Because of that, it does create an additional cost, not necessarily a large one, but an additional cost and that is why Fannie Mae and Freddie Mac raised concerns. A lot of analysis has been done to say that PACE lien for a variety of reasons, the actual risk is really small. The impairment is very small and we could talk about the math, but that is obviously part of the debate in Washington. The other question is what happens to the Federal and State tax credits? It's a matter of policy, because all the systems work differently. In States that have rebates or cash that is generally transacted at the time of installation of energy-efficient improvements, that is deducted from the pace amount. Generally you can't finance that amount... Tax credit often takes a year to eighteen (18) months to receive it and for many property owners for the federal tax credit it's large enough that you have to roll it over a couple of years to have enough income to receive the full credit. Because of that there are different COUNCIL MEETING January 12, 2011 11 approaches. One you can say we're not going to finance the credit and we'll just pay for the net amount after the tax credit. Or you can give people the option of financing the tax credit or not as part of the program. There are some other things you can do on that, but there is a policy choice that cities make when setting up a program. I should say by law, the property owner retains ownership, so the tax credits do float to the property owner in the case of PACE. Chair Furfaro: Thank you for those answers and now I will refer to questions coming from the individual Councilmembers. We'll have no more than two (2) rounds of this within the guidelines of our rules and we might forward those as well. Councilmembers, thank you for the presentation and we do hope the weather clears and we understand it will clear here first. On that note, Councilmember Nakamura. Ms. Nakamura: Thank you so much for describing the program, especially the regulatory barriers. That is what I have been following. I wanted to find out given the roadblocks presented by Fannie Mae and Freddie Mac, I was wondering what kind of advice you would give us in terms of starting/establishing a program here? Given what is going on in the litigation coming up. Mr. DeVries: My advice candidly this is not a good moment to start a senior position PACE program serving the residential community. It does present some risks to property owners, whether they participate or not and that is not something I would recommend a state or local government do, some local governments have chosen to continue with disclosure to the community, but I'm putting my public service hat on here. However, there are a number of things that one can do, and I mentioned a couple of them, but let me come back to those. The first is that there is an opportunity to service commercial buildings. Where they are not regulated by FHFA and there are a number of ways to approach that. The credit quality of individual commercial properties will matter a lot more than you think of a pool of residential properties. Some of the financing is more complicated, but there are some interesting ways to approach that and that is something that a number of things that communities are doing. The second is that there is an opportunity to be ready to do PACE and that comes in two flavors. The first is that obviously there is a discussion about whether the state law already enables this or whether there is an additional state legislation that would be necessary or appropriate. Again, I can't speak to it, but I know discussion is going on and I have met with the state about it. Having that resolved and having the opportunity that this is something that we would like to do is kind of a schematic of going forward with the program is something that could be done without a lot of effort and time. The other piece is that will are a lot of things about pace that turned out to be important separate from financing and also putting them together, as we talk about "a one-stop shop." That people have one place to go with information about contractors and financing options and tools and ways to go forward, some of these you can do as we have done with our program, social marketing tools where you can see what your neighbors,have done. There's a lot of ways to put together using the internet and community-based tools to allow for an infrastructure that allows for this and PACE becomes a valuable tool. Ms. Nakamura: And then once the litigation is settled, you are set to go? COUNCIL MEETING January 12, 2011 12 Mr. DeVries: That is correct. As we said and when the State of California hired us for the program that is similar to what I am talking about and I can send more information, if it's of interest, they used the term we're going to keep the seat warm for PACE, we're going to provide all the options we can for financing and all the other tools and when PACE become available, boom we can slide it in, it becomes another option for property owners. Ms. Nakamura: Thank you. Chair Furfaro: Thank you. Members? Mr. Rapozo: I have a quick question. Chair Furfaro: Go ahead, Mr. Rapozo? Mr. Rapozo: Thank you for being here. I have one question. Here on Kauai, we have the structure and infrastructure set up for community facilities district that pretty much runs the same way except for CFD the proceeds are used for public purposes, infrastructure, schools and the way I read your chart here, it looks like it's the same way, but in this process, the funds go to the homeowner, who basically signs the agreement and use the funds to retrofit their home. The real problem today I'm hearing is that the regulators and there is quite a bit of discussion online about California and how the fact that they consider it a loan is affecting those programs. And maybe you can answer this, but I am trying to figure out how can we implement? It doesn't really matter what the mechanism is in the county, because at the end of the day, the bankers or the FHFA are the ones that really dictate. And that is a federal organization? Mr. DeVries: Yes it is. Mr. Rapozo: That's pretty much in conflict with President Obama's policy right now? Mr. DeVries: It's an independent regulatory agency. Mr. Rapozo: Oh independent regulatory, okay. So I guess really simply, it's like our CFDs, except this is for public projects. This is for private projects, and homeowner projects versus a CFD, which is for a community project. It operates the same way. Property owners pay it in their property tax. Mr. DeVries: If I could... that is absolutely correct and let me sort of say a slight bit more about it. Community facilities district, your legislation is modeled on California's CFD legislation which is how Berkeley did their first program. They are similar programs, but vary somewhat because of the different states, but they are similar. The concept here in the community facilities district is that you have an opportunity to pursue a public purpose that benefits a particular property owner or property owners. The concept behind an assessment district or community facilities district, CFD, those who receive benefit from an improvement that serves a public purpose that provides a public benefit, sewer, or seismic improvements on properties, but those properties that receives the benefit also paid for the cost of that benefit on a somewhat prorata share; PACE is similar. In this case it's entirely on the private property rather than partially on public COUNCIL MEETING January 12, 2011 13 property and partially private or entirely public, but- you are pursuing a public purpose, and the property owners that receive a benefit are the ones that pay for the cost; of that benefit. So it's a very similar tool, used in a very similar way. I think one of the big questions in the litigation and discussion in Washington, is there any real legal difference between how a CFA is used traditionally and used now? There are assessment districts that look similar to pace as well. So that conversation is underway, but to answer your question, you are obviously right. They are very similar. The difference is that essentially you have a private property who the project is entirely on, rather than a larger project that benefits multiple properties at once. Mr. Rapozo: Right but yet the benefit is of a public benefit because of the conservation of energy. Mr. DeVries: That is right. Mr. Rapozo: And I'm thinking out loud, if there is a developer out there moving forward in the development of three hundred (300) units in a subdivision and I'm just wondering how that would affect a, them pursuing a CFD in a construction of or providing these funds for a new homeowner which is going to entirely fit their home with energy conservation and there's no opportunity for refinancing at that time, we're going to construct it as part of our financing plan. We want to fit every new construction with these energy-saving items and how that would fare with the mortgage companies is interesting. Mr. DeVries: It's an interesting question and I think it avoids many of the issues that they have raised, but I can't speak to that. Mr. Rapozo: I'm just thinking out loud, it's pretty interesting. Thank you. Chair Furfaro: Thank you very much. Any other questions? Mr. Bynum. Mr. Bynum: Thank you very much for the presentation. I have been tracking this since 2009 when I heard Berkeley was doing it and I think that local sentiment was let them pilot this and after all, it is Berkeley. But you know that looks like it was a wise decision. I basically hear you saying that we can get ready and prepare the legislation and start having a dialogue. In terms of superior issue, some communities are moving forward by doing a work-around of that. We have received testimony about Ann Arbor, Michigan, but your recommendation is don't go that route. There is an advantage to being that superior position, right? Mr. DeVries: I wouldn't necessarily say I'm arguing against going in a subordinate lien position. There are several challenges that come up with the subordinate lien position that people should be aware of and if you feel you have a comfortable.,way to resolve them. What happens when you go to subordinate lien position it's much more difficult to bring private capital, it would mean that the county in this case would be in a position of having to secure the delivery of funds in a much more proactive way that would probably involve some credit risk. That's one of the key issues that comes up or identify a pot of funds to be loaned out or what would be part of what would be loaned out. So there are COUNCIL MEETING January 12, 2011 14 other tools to get around that but there aren't a lot of examples of subordinate lien governmental programs that attract money from private sources. So that is one of the key issues. Other issue and this is a technical issue, the tax-collection system has no way to do that and what we have heard from tax collectors in multiple states, including California, but I could not speak to Hawaii. So it becomes an expense and complication issue with the tax-collection system. If those issues can be resolved it's absolutely a path to go forward and we're supportive of it. I just think it's important to be cognizant of those concerns. Mr. Bynum: My other question had to do with... you said know how to market it and use the right language, is that something that the county could enlist a non-profit to be the administrator/contact point and fulfill that role and has anybody else done that? Mr. DeVries: Many of the states, cities and counties utilize for-profit or non-profit organizations to assist, and they empower them to do that and I would say that is probably a more common approach. The question, I think is less who does it, whether it's the local government giving authority to another organization on their behalf. It's to make sure that the language is appropriate, regardless of who is doing it and that the goal and the lessons that we have learned from PACE so far are fulfilled in that but I think it could absolutely be a tool to go forward. Mr. Bynum: So back to my previous question for a second that part of the attractiveness is government's ability to secure financing at really favorable rates, staying in the superior position makes that easier is part of what you are saying? Mr. DeVries: I think being in the senior position allows the government to essentially be a conduit to secure better rates instead of putting the county's credit in the mix. Mr. Bynum: Got it. Mr. DeVries: As soon as you have a subordinate lien and the county says we'll stand behind this repayment no matter what, immediately that repayment is your credit rating; it is also your indebtness and if you want to avoid the county having its credit enmeshed in it, the senior lien becomes very important to that conversation. Those are the sort of double-edged swords here. If the county is interested, there are other ways that the funds can be used without doing too much risk but there is risk. Mr. Bynum: I got that. So it looks like the take away from this is because this is a recommendation that we can move forward with due diligence and be prepared, but we need to see the outcome of these negotiations and/or lawsuits are regarding the finance issues. Mr. DeVries: Yes. I would say if you want to move forward on the senior lien residential PACE program, my recommendation is exactly that. To the interest of pursuing subordinate lien, setting up systems to support PACE, once it's available again, knock on wood, then I think those are all very viable options. I would just caution against the senior lien on residential properties. COUNCIL MEETING January 12, 2011 15 Mr. Bynum: Thank you very much. Chair Furfaro: Thank you. Councilmember Yukimura, Ms, Yukimura: I want to thank Mr. DeVries and I have some questions, but I think given the time, I am going to just name them and then invite people to come to the Apollo Kauai meeting to talk more at length. One is administrative costs of the program. The other is quality control of systems that are installed, and the other is how you assess energy-efficiency effectiveness? And the effectiveness cost ratio to make sure what you are underwriting is actually helping you achieve your goals? So those are questions that have popped up for me, but I really want to honor our schedule as well. This whole section has been most informative. Thank you, Cisco. Mr. DeVries: It's my pleasure, thank you? Chair Furfaro: We appreciate your time and being here on the island of Kauai and thank you very much. You will be at the Apollo meeting tomorrow and I'm sure there will be more discussion? Ms. Yukimura: And Mr. Chair if I could just repeat what you have said the Apollo meeting is in the Piikoi Building at 6:00, Thursday the 13th of January. Chair Furfaro: Mr. Devries, thank you very much. Members, I'm going to call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: • I do want to point out that I thank you for focusing on the time that we allocated for this as when we suspend the rules, obviously the rules on timing depend on your cooperation and not by a specific rule but we would like to have a motion to receive this item. Mr. Chang moved to receive C 2011-24 for the record, seconded by Mr. Rapozo, and unanimously carried. Chair Furfaro: Mr. Clerk or do we have an individual to read the next item? Deputy Clerk? EDUARDO TOPENIO, JR., (DEPUTY COUNTY CLERK): Next matter is C 2011-25. C 2011-25 Communication (12/14/2010) from the Cost Control Commission, transmitting for Council information in accordance to Section 28.05 of the Kauai County Charter, the 2010 Annual Report of the Cost Control Commission relating to; (1) Expanding the Adopt-A-Park (Ho`olokahi) program (2) Additional training for the County Attorney's Office (3) Personnel and industrial relations trainings for County employees Mr. Rapozo moved to receive C 2011-25 for the record, seconded by Mr. Chang. COUNCIL MEETING January 12, 2011 16 Chair Furfaro: Are there members in the audience... Sorry, come on up... community members in the audience that wish to speak on this item? Rules are suspended, Mr. Mickens. There being no objections, the rules were suspended. GLENN MICKENS: Thank you Jay. For the record, Glenn Mickens. You have a copy of my testimony, let me please read it for the viewing public. I have the highest respect for the Cost Control Commission and for their Chair, Larry Chaffin. I believe that these people are taking their jobs seriously and are making some fine recommendations to reduce the cost of county government. However, with all due respect I do disagree with their recommendation to expand the Adopt-a-park program. I have absolutely no problem with soliciting the aid of volunteers to help in the upkeep of our sixty-three (63) parks that are in dire need of maintenance. But as you have heard me say many times, volunteers are only a supplement to any job and are not the solution. If this is truly the Garden Island then let's hire enough workers to maintain its beauty and not depend on volunteers to do this important job. Why don't we have a cleaning machine like Oahu on Waikiki Beach that thoroughly cleans the sands of our beaches, the crown jewels of our island? Or hire an as needed contractor to do this job? They have one here on the island. Sure volunteers can help clean up the mess in Lydgate Park after every storm. But that wonderful swimming and snorkeling pond remains closed for weeks hurting the tourists that could be enjoying it. We know that logs and debris will clog that pond when the heavy rains come so why aren't we building that rock wall higher around the pond to solve the problem? I do believe that some place they were talking about doing this, they were going to dredge the pond, it needs some serious help down there. The airport gateway beautification project did not work under a volunteer program but now that paid workers are maintaining it, the six (6) mile area is beautiful and those workers are to be congratulated. If a volunteer wishes to fine tune the job being done then that is icing on the cake and I salute them. But again going after volunteers is not the answer. Putting a band aid over a ruptured artery won't work but budgeting for more workers is the solution. And as Tim knows, I am in no way opposed to volunteers as I was one (1) for three (3) years. To those fine CCC workers, I say thank you and continue your fine work. Anyway again I know that they're trying to have this Adopt-a-park program but you can't fire a volunteer. A volunteer doesn't want to show up, the job is not going to get done period. This Adopt-a-Highway thing... you know the same thing, I don't see where... it's not working. You see thousand dollar fine sign on that thing for dropping debris, that's never been enforced that I know of, I don't think you have either Jay, you've been a lot longer than I have. But these volunteers programs are not the answer, I say that hey let's budget for, if we need more workers for these parks, beaches whatever... let's go out and hire these people. I know that in this time of budgeting but here again you know we're taking money out of that general fund, out of that forty-three million dollar surplus, so I think there's probably money to do that. Thank you very much Jay. COUNCIL MEETING January 12, 2011 17 Chair Furfaro: Thank you. Any questions of Mr. Mickens. If not, thank you very much for your testimony. Is there anyone else that wants to speak on this communication? Mr. Bynum. Mr. Bynum: You want to call the meeting back to order? There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Mr. Bynum: I just want to make some comments regarding the Adopt-a-park, we do have an Adopt-a-park program now and I think you know the hundreds of volunteers that work every week on behalf of the County of Kaua`i.., you know to get support now from the County, you know it's a great deal if you need to paint a pavilion and you have volunteers willing to give it, it's a real bargain the County provides the paint, the community provides the labor and you know at Lydgate Park, as you noted, as Glenn noted... the ponds frequently get recovered up with wood after large rains probably today and for volunteers for fifteen (15) years have cleaned that, those ponds usually within four (4), five (5) days and they do that collaborated with the County. Friends at Kamalani have maintained the Kamalani Playground for eighteen (18) years and so volunteers can be consistent and they do as Glenn says, put polish unto and give us a higher level of service. In terms of the roadway... you know and George is one of those volunteers, George Costa, our Economic Director who picks up trash along the highway. It's not the solution but every time you see the big pile of orange bags, those are volunteers who have made our place a better place to be. You know giving volunteers easy access and I know from working with volunteers for years, when they show up, they want to do work. And so to have the right tools, to have the right equipment, to ease that transition and the liaison between the County and those volunteers is great and I want to finally acknowledge our Parks Department that for many years has facilitated many community groups. Doing big projects and small, you know that enhance the quality of our parks so I'm glad the Cost Control Commission looked there because volunteers save us huge amount of money. Our RSVP program demonstrates that every year so I just wanted to make those comments. Thank you very much. Chair Furfaro: Thank you. Any other comments? Mr. Chang? Mr. Chang: Thank you Mr. Chair. I too would like to say mahalo to the volunteers. You know there's so much opala and so much work out there that we have people like the Lion's Club or the Rotary and a lot of different schools, the County of Kauai, these are many, many unsung heroes, you know recently of course we had our fireworks, we had employees of the Saint Regis, different places cleaning up Hanalei, different hoteliers and their staff and even visitors helping clean up Po`ipu Beach Park and the different parks so, I don't want to discourage any volunteers because they are out there, they work really hard and then community members help.,support them with gloves, water and sunscreen and even different restaurants providing,lunch. I mean, you know,if we can get these, people to do volunteer and free labor, I don't want to discourage anybody. I would like to say there's residents from the Westside to the North shore that do it on a daily basis and sometimes we always complain about driving on the side of the road and there's litter but you do see residents, all parts of the island doing their thing on a routine basis and so there are people that have figured it out and they know COUNCIL MEETING January 12, 2011 18 how to get the resources and they know how to get the people and I think it's a great value and I don't want to discourage anybody because I think when we're on the roll, we're on the roll... and you know there's been several pictures submitted within our Garden Island Newspaper of visitors that call Kauai their part time home, that they are some of the first people that step up to the plate to... for example clean up Lydgate Park and the logs and what have you. I just want to say Aloha out there to the people of Kauai that care about Kauai and who want to keep it so clean. Thank you Chair. Chair Furfaro: Thank you. Councilwoman Yukimura did you want to speak on this item? Ms. Yukimura: Yes. Yes, thank you. I think if we put a... if someone ever took the time to calculate the monetary value of volunteers on this island, it would be totally astounding and the benefits have been... the non- monetary benefits have been spoken here too so... I certainly concur and understand what contribution the volunteers of this island make in many walks of life. I think what Mr- Mickens was also talking about was the other part of the equation is government efficiency and proper management and supervision and I think the Cost Control Commission has touched on those matters too in terms of additional training and so forth. Though I feel like some of the training listed while important, and it wasn't exclusive but there's a lot more of other kinds of training that need to be done and we had some discussion yesterday in talking about that. But anyway I want to thank the Cost Control Commission for their work, it's always good to have a dedicated group of citizens reviewing what we're doing, some kind of outside perspective from people with really good backgrounds for this. And then I also I want to thank all the people who have facilitated our volunteers and to mention the Ho`olokahi program was actually was Mayor Baptiste idea and Eddie Sorita has really carried that forward as well, so they've been pivotal people in facilitating the volunteer component of the County. Chair Furfaro: Okay. Thank you very much. I'm looking for a motion to receive here. Ms. Yukimura: So moved. Chair Furfaro: Oh, we did. I'm sorry, thank you for reminding me that we already did. So we already have a motion to receive and a seconded and we had some discussion... all those in favor... The motion to receive C 2011-25 for the record was then put, and unanimously carried. Chair Furfaro: Before we go to the next item, I'm going to share... you know we're receiving communications here that also have a follow up on a Resolution later, I would like to go through the communications but I see a number of people here that would like to give testimony... and have traveled some ways especially with today's weather but I would like to take a five (5) minute break for myself to revisit something and then when we come back if you choose to speak on the communication, I'm assuming that you will not, you will not be speaking on the Resolution. So we're going to take a five (5) minute, no more than a five (5) minute recess. COUNCIL MEETING January 12, 2011 19 There being no objections, the Council recessed at 10:09 a.m. The Council reconvened at 10:15 a.m., and proceeded as follows: Chair Furfaro: Members in the audience, I think we're back from our five (5) minute recess. Mr. Clerk could you read the next item please? Mr. Nakamura: Mr. Chair, we're on the bottom of page one (1) of the Council's agenda, communication C 2011-26 for receipt. C 2011-26 Communication (12/29/2010) from Councilmember Rapozo, transmitting for Council consideration an amendment to Chapter 3 of the Kauai County Code 1987, as amended, relating to the Salaries of County Officers and Employees, to conform with Section 29.03 of the Kauai County Charter. Chair Furfaro: Mr. Stoessel? The rules are suspended, this is your item I believe. Members, you have written testimony from Mr. Stoessel. There being no objections, the rules were suspended. HORACE STOESSEL: Thank you Mr. Chairman. Good morning Councilmembers. Chair Furfaro: Good morning. Mr. Stoessel: My name is Horace Stoessel and I've submitted a written testimony and I want to make a brief statement in support of this bill. I do not anticipate being here when the bill is acted on later in the day. As I said in my written testimony, I believe the bill achieves its stated purpose of conforming the County's Salary Ordinance to Charter Section 29.03. I am interested in conforming the entire executive salary process to the 2006 Charter amendment that mandates major changes in the process. My written testimony points to changes that I believe need to be made in addition to the draft bill. I have been told and given a copy of an amendment that will be presented in connection with this bill and I would simply like to add the comment, I believe that if you add to the bill, as it now stands, the conditions in the salary Resolution No. 2010-1, you will essentially perpetuate confusions that have marked this process ever since 2007. I'm willing to discuss that if you want to talk about it now, I'm willing to come to the public hearing and make a case for what I am saying right now but I just wanted to make that note in passing. Thank you. Chair Furfaro: Thank you Mr. Stoessel. Do members have questions at this point for Mr. Stoessel? Councilwoman Yukimura, Ms. Yukimura: I actually haven't had time to digest your input, I just want to thank you for your constancy of attention to this matter and I do want to hear at the public hearing and (inaudible), out,the process some of your input. And I'm sorry that I don't have questions right now but1need to digest this. Mr. Stoessel: I'm sorry I didn't hear... Chair Furfaro: Let me restate that.., first of all Mr. Stoessel, you do intend to attend the public hearing? COUNCIL MEETING January 12, 2011 20 Mr. Stoessel: Public Hearing, yes. Chair Furfaro: And I think that was your question Councilwoman? Ms. Yukimura: Not my question... Chair Furfaro: Your statement I guess... Ms. Yukimura: My comment that I would like to receive that information and your input at that time. Mr. Stoessel: Thank you. Chair Furfaro: Anyone else? If not, thank you Mr. Stoessel. Is there anyone else that would like to testify on this item? If not, I'd like to call this meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to received C 2011-26 for the record, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: Next item Mr. Clerk. Mr. Nakamura: We're at the top of page two (2) of the Council's agenda Mr. Chair a communication for receipt, communication C 2011-27. C 2011-27 Communication (12/29/2010) from Mayor Bernard P. Carvalho, Jr., transmitting for Council consideration and confirmation the following appointees to the various Boards and Commissions for the County of Kauai: (1) Board of Review Jose Diogo —term ending 12/31/2013 (2) Board of Ethics Kathleen Clark— term ending 12/31/2012 (3) Board of Water Supply Daryl Kaneshiro—term ending 12/31/2012 (4) Charter Review Commission Charles Stack —term ending 12/31/2013 (5) Cost Control Commission Laurie Yoshida —term ending 12/31/2012 Brant Fuchigami— term ending 12/31/2013 Glen Takenouchi—term ending 12/31/2013 (6) Fire Commission Guy Croydon — term ending 12/31/2013 Darnney Proudfoot—term ending 12/31/2013 (7) Salary Commmission Randy Finlay—term ending 12/31/2011 Mr. Rapozo moved to receive C 2011-27 for the record and schedule Interviews on January 25, 2011, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING January 12, 2011 21 Chair Furfaro: Next item Mr. Clerk. Mr. Nakamura: Next matters on page two (2) are communications for approval, first communication for approval is communication C 2011-28. C 2011-28 Communication (12/3/2010) from Fire Chief, requesting Council approval to accept a donation of eight (8) advanced filtration/purification point of use drinking water systems valued at $996.60 from Bernard Frank, CEO, Global Water Filtration & Purification systems. These drinking water systems would be installed in each of the Kauai Fire Department's fire stations: Mr. Rapozo moved to approve C 2011-28 with a thank you letter, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: Next item. Mr. Nakamura: Next matter for approval is communication C 2011-29. C 2011-29 Communication (12/7/2010) from the Chief of Police, requesting Council approval to expend approximately $7,500.00 from asset forfeiture funds to purchase three (3) laptop computers which will be used by the Administrative and Technical Bureau for police recruitment, community relations, and taser maintenance: Mr. Chang moved to approve C 2011-29, seconded by Mr. Bynum, and unanimously carried. Chair Furfaro: Thank you. Next matter. Mr. Clerk. Mr. Nakamura: Next communication for approval is communication C 2011-30. C 2011-30 Communication (12/13/2010) from the Director of Parks and Recreation, requesting Council approval to accept a monetary donation of $200.00 from Les & Gigi Drent: Mr. Chang moved to approve C 2011-30 with a thank you letter, seconded by Mr. Rapozo, and unanimously carried. Chair Furfaro: Mr. Clerk, next item. Mr. Nakamura: Next matter for approval is communication C 2011-31. C 2011-31 Communication (12/21/2010) from the Executive on Aging, Agency on Elderly Affairs, requesting Council approval to apply for, receive, and expend $43,030.00 in Federal funds from the State Executive Office on Aging and to indemnify the State to sustain the implementation of the EnhanceFitness evidence- based, physical activity program which provides the opportunity for Kauai's older .adults 60+ to take charge of their health through participation in the EnhanceFitness program. This;award„will be for one-year period: , Mr. Chang moved to approve C 2011-31, seconded by Ms. Yukimura. Chair Furfaro: Any discussion? Ms. Yukimura: Yes Mr. Chair. COUNCIL MEETING January 12, 2011 22 Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: I just wanted to say this is a very forward looking program. As our community ages it's going to become more important than ever that we find ways to help our elderly stay healthy and I want to commend the Agency of Elderly Affairs for their initiative and their work in developing this program. And I also want to commend the wonderful instructors. Chair Furfaro: Thank you. Comments well taken. The motion to approve C 2011-31 was then put, and unanimously carried. Chair Furfaro: Next item please Mr. Clerk. Mr. Nakamura: We're at the top of page three (3) of the Council's agenda a communication for approval, communication C 2011-32. C 2011-32 Communication (12/03/2010) from the Director of Parks and Recreation, requesting Council approval to accept a donated painted picnic table to be located at Waioli Beach Park, with an estimated value of $900.00 from Andy Melamed: Mr. Chang moved to approve C 2011-32 with a follow up thank you letter, seconded by Mr. Rapozo, and unanimously carried. Chair Furfaro: Next matter. Mr. Nakamura: Next communication for approval is communication C 2011-33. C 2011-33 Communication (11/16/2010) from the Director of Parks and Recreation, requesting Council approval on a grant application from Kauai Senior Citizen Softball Association for $5,000.00 of County funding for the construction of various improvements to Kaumakani Park, funded under the General Fund CIP Kaumakani Pavilion (materials only): Mr. Bynum moved to approve C 2011-33, seconded by Mr. Rapozo. Chair Furfaro: Any discussion? Mr. Bynum. Mr. Bynum: I just wanted to take this opportunity to point out, this is a great example of the kind of volunteer and liaison between the County and the volunteer project, this is for construction... ongoing volunteer efforts at Kaumakani Park by the Senior Baseball people. We've had this in place for a long time that we set aside capital improvement money for community members to work with, they work with the... so in this instance if you read the grant application which is part of our packet today, you know they've done a lot of work already. They contribute all of the labor, seniors who have the talent, the expertise and the time and our parks ends up with a new pavilion. The pavilion at Kapa`a New Park that is used by many people was built by Senior Baseball in a similar project in the past and the idea of Adopt-a-park is to liaison, to make it easy for these community members, to get their hands on materials, to get their hands on the things they need, so when volunteers come to work, they're doing something really meaningful that last a long time. I think Mr. Mickens point that expecting volunteers to do the ongoing maintenance is a stretch and there are some examples COUNCIL MEETING January 12, 2011 23 where that does occur but most of these projects have to do with enhancements to the parks and it will, you know when this pavilion's built, it will be to the county's property and we'll have to maintain it but you know this is a great example. Chair Furfaro: And I do want to point out to members it is somewhat uncomfortable when after the fact of public testimony, we refer to somebody's testimony as being something that we would disagree with but at the same time I want to point out that we're all entitled to our commentary and that's what it is but I did not suspend the rules for Mr. Mickens to talk on this, he spoke on another item and that was his opinion so I do so acknowledge that and thank you for your comments Mr. Bynum about the fine work volunteers do. Mr. Bynum: Can I? I just wanted to take one (1) second to say that this grant application was written by Pat Baniaga and Steven Fujii from the Kauai Senior Citizen Softball and these are two (2) individuals who volunteer almost every day of their life. So thank you. Chair Furfaro: And I know there's members here in the Council that do volunteer work as well but thank you for pointing out those two (2) gentlemen and their efforts to consistently make improvements here in our County. No further discussion? All those in favor signify by saying aye. The motion to approve C 2011-33 was then put, and unanimously carried. Chair Furfaro: Next matter Mr. Clerk. Mr. Nakamura: Next communication for approval on page three (3) is communication 2011-34. C 2011-34 Communication (12/7/2010) from Councilmember Kawakami, requesting Council consideration and approval of the following: ® Councilmember Mel Rapozo to replace Daryl W. Kaneshiro as the Alternate Kauai Representative to the Hawaii State Association of Counties (HSAC) Executive Committee for the term ending June 30, 2011; ® Councilmember Mel Rapozo to replace Councilmember Dickie Chang as the Western Interstate Region (WIR) Board of Director, and • Councilmember Dickie Chang to be the alternate Kauai Representative to the Western Interstate Region (WIR) Board for the term ending June 30, 2011. Mr. Chang moved to approve C 2011-34, seconded by Mr. Bynum. Chair Furfaro: Any discussion? Mr. Rapozo: I have real quick. Chair Furfaro: Mr. Rapozo. Mr,, Rapozo; Thank you and thank you all,for supporting; well I hope you're going to support this... but I just wanted to clarify that the second bullet, Councilmember Mel Rapozo to replace Councilmember Dickie Chang... kind of looks like we booted him out... I just wanted to clarify that that's simply not the case. In my last terms of office I served as the HSAC President as well as the WIR Representative so I kindly asked Mr..., well I asked Councilmember Dickie Chang if COUNCIL MEETING January 12, 2011 24 he would be willing to allow me to return there because we had established quite a bit of relationships throughout the Country and he was very kind enough to let me get back to that seat, so that is the purpose, so it's not that he got booted. He's going to be the alternate and I expect him to be a very active part of the WIR which is the Western Interstate Region, so that's all my comment Mr. Chair. Thank you. Chair Furfaro: Thank you Mr. Rapozo and may I point out that this nomination was made by Mr. Chang so it certainly he gave it his stamp of approval. The floor recognizes Mr. Chang. Mr. Chang: Thank you. Thank you Mr. Rapozo. And I just wanted to say that I will continue to serve with our HSAC and I will continue to work with our relationship with the Western Interstate Region, it was definitely an honor to work with our counties and to work with our Western Interstate Region and of course with NACo and I just would like to say that our current President of our Hawaii State of Association of Counties, Councilmember Derek Kawakami is doing business in Honolulu and Kauai is very, very well represented and very, very well respected not only Statewide but certainly our Nation and again having someone with Councilmember Rapozo's experience as a past Hawaii State Association of Counties President, as well as the two (2) time board member for the Western Interstate Region, I felt that his experience and relationships will do us well here for the County of Kauai and Hawaii and our Nation. Thank you very much and thank you Mr. Chair. Chair Furfaro: Okay, we have a motion and a seconded, any further discussion? The motion to approve C 2011-34 was then put, and unanimously carried. Chair Furfaro: Shall we go now to claims? Mr. Nakamura: On page three (3) Council Chair, under claims communication C 2011-35 and C 2011-36. CLAIMS: C 2011-35 Communication (12/21/2010) from the County Clerk, transmitting a claim filed against the County of Kauai by Lyle S. Kobashigawa for damage to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Rapozo moved to refer C 2011-35 to the County Attorney's Office for disposition andlor report back to the Council, seconded by Ms. Yukimura, and unanimously carried. C 2011-36 Communication (12/22/2010) from the County Clerk, transmitting a claim filed against the County of Kauai by Alii Landscaping for damage to his trailer, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Rapozo moved to refer C 2011-36 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Ms. Yukimura, and unanimously carried. Chair Furfaro: Mr. Clerk? Mr. Nakamura: Next matter's are Committee Reports. COUNCIL MEETING January 12, 2011 25 COMMITTEE REPORTS: COMMITTEE OF THE WHOLE: A report (No. CR-COW 2011-01) submitted by the Committee of the Whole Committee, recommending that the following be received for the record: "COW 2011-01 Communication (12-23-2010) from Council Chair Jay Furfaro, requesting Council consideration of a proposed resolution to establish a Human Resources Sub-Committee to the Committee of the Whole to review and propose revisions to the personnel of the County Council and Council Services of the County of Kaua`i," Mr. Chang moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. A report (No. CR-COW 2011-02) submitted by the Committee of the Whole Committee, recommending that the following be received for the record: "COW 2011-02 Communication (12-23-2010) from Council Chair Jay Furfaro, requesting Council consideration of a proposed resolution to establish a Rules Sub-Committee to the Committee of the Whole to review and propose amendments to the Rules of the County Council of the County of Kaua`i," Mr. Chang moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. A report (No. CR-COW 2011-03) submitted by the Committee of the Whole Committee, recommending that the following be approved as amended: "Resolution No. 2011-04, RESOLUTION TO ESTABLISH A HUMAN RESOURCES SUB-COMMITTEE TO THE COMMITTEE OF THE WHOLE TO REVIEW AND PROPOSE REVISIONS TO THE PERSONNEL OF THE COUNTY COUNCIL AND COUNCIL SERVICES OF THE COUNTY OF KAUAI," Mr. Chang moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. (See later for Resolution No. 2011-04, Draft 1) A report (No. CR-COW 2011-04) submitted by the Committee of the Whole Committee, recommending that the following be approved as amended: "Resolution No. 2011-05, RESOLUTION TO ESTABLISH A RULES SUB-COMMITTEE TO THE COMMITTEE OF THE WHOLE TO REVIEW AND PROPOSE AMENDMENTS TO THE RULES OF THE COUNTY COUNCIL OF THE COUNTY OF KAUAI," COUNCIL MEETING January 12, 2011 26 Mr. Chang moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. (See later for Resolution No. 2011-05, Draft 1) A report (No. CR-COW 2011-05) submitted by the Committee of the Whole Committee, recommending that the following be approved on second and final reading: "Bill No. 2385 - A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B-2010-705, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($90,211-County Auditor)," Mr. Chang moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. (See later for Bill No. 2385) Chair Furfaro: Next item Mr. Clerk. Mr. Nakamura: Next matter on page four (4) of the Council's agenda are Resolutions, first Resolution is Resolution No. 2010-59. RESOLUTIONS: Resolution No. 2010-59, RESOLUTION AUTHORIZING THE ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED FOR PUBLIC USE TO WIT: AN ADDITION TO THE PUBLIC PARK SYSTEM, SITUATED AT HANALEI, DISTRICT OF HALELE`A, COUNTY OF KAUAI, STATE OF HAWAII, AND DETERMINING AND DECLARING THE NECESSITY OF THE ACQUISITION THEREOF BY EMINENT DOMAIN: Mr. Bynum moved to approved Resolution No. 2010-59, seconded by Ms. Yukimura. Chair Furfaro: Is there anyone in the public that wishes to speak on this Resolution? I see no hands I'll call the meeting back to order. Mr. Rapozo the floor recognizes you. Mr. Rapozo: I was hoping to make a motion to refer this to Committee or to defer this Resolution, simply because I have not been... obviously the action was taken in the prior term, so I wasn't able to have a discussion with the other members, with the County Attorney, so I'm not sure if it would require Executive Session or not. I did read the Executive Session minutes from the last Council and it wasn't very revealing but I mean there was some discussion and obviously I agree with the... that the direction that we want to purchase this property, I am also understanding that the landowner is willing to sell the property, the problem right now is that this property is involved in civil litigation and there is a trial or a hearing date, I'm sorry a hearing date set for February. The basis of the litigation is the value. I am not aware of any reasons to have to rush this through and I am hoping that I can get the Council's support to get a referral or a deferral, I don't believe it's time sensitive and if it is I would ask the Attorney to come up and explain that to us. I understand the motion is to approve, I will not support the motion to approve at this point simply because I'm COUNCIL MEETING January 12, 2011 27 quite concerned of the litigation that this property, properties are in and I'm just asking for that courteously. Chair Furfaro: Let me answer a couple of your questions at this time Mr. Rapozo before I go to other members, I have requested in the first week of February a Executive Session on this matter. I had that discussion with the County Attorney's Office for the purpose and briefing of all members. Now if we want to defer this, you know that is the body's choice but it is still my intention to have that Executive Session in the first week of February. You know this Resolution is about preparing the County Attorney, should we move for the purposes of eminent domain and public benefit but I still intend to have that Executive Session in the first week of February, so this query about a briefing and so forth is appropriate since I've already asked for the same. So I just wanted to share that information with all of you. Councilwoman Yukimura, you had a question? Ms. Yukimura: Well I appreciate your willingness to hold an Executive Session for briefing as I had asked you for one too and partly because I have not been at this table for awhile as well so I do agree with the idea of a briefing. I am concerned that it's the first week of February when I think at least two (2) of us will be at a Smart Growth conference, so if it could be scheduled so that we could be present, that would be helpful. I respect Councilmember Rapozo's desire to have... to be briefed... for my purposes, I think value could be determined by an appraisal which I think has been done and could be done again jointly with the owner but anyway, and if there is a willingness to sell then the owner should be talking to the County. An appraisal might be the way to get the value. Chair Furfaro: I would hope that the discussion about appraisal would be in that Executive Session but let me... Ms. Yukimura: I'm not discussing any... Chair Furfaro: No, let me... Ms. Yukimura: Details... Chair Furfaro: Let me reassert, I don't think we're at that point until after the briefing but what is your travel schedule look like for the ninth (9th) of February? Ms, Yukimura: We'll be back by then. Chair Furfaro: Okay. So let me say that my intention is then to schedule an Executive Session briefing on February 9th, does that fit well with everyone? Mr. Rapozo: That is the Council meeting? Chair Furfaro: Yes. Mr, Rapozo: I guess I would suggest that if we could have the Executive Session early then this matter could be deferred till that Council meeting, if that's not a problem. COUNCIL MEETING January 12, 2011 28 Ms. Yukimura: Yeah. Mr. Nakamura: Um Mr. Chair. Mr. Rapozo: I believe that... Chair Furfaro: Excuse me... go ahead. Let me just recognize the Clerk for a moment Mr. Rapozo and you may have additional questions, ask after that. The floor recognizes the Clerk. Mr. Nakamura: Mr. Chair, I believe we can in working with you... we can arrange the Executive Session earlier in the morning and have the Resolution come on later in the afternoon, if that's how it works out, that's something that we could arrange Mr. Chair. Chair Furfaro: So Mr. Rapozo is that acceptable to you? Mr. Rapozo: Yeah it is. I think... you know I guess for me, I'm just trying to figure out the Resolution of condemnation or eminent domain... is there... and I need to know if there is a time issue? There is no time issue? Okay, I just recognized the County Attorney saying there is no time issue, so I do understand that the landowner and he's present here today and I did have a chance to speak with his attorney that they are in communication and negotiations at the current time with the County. AMY ESAKI, DEPUTY COUNTY ATTORNEY: We are in communication but we need the Resolution to authorize this. Chair Furfaro: I think the question here for all of us... Ms. Yukimura: Oh wait, can you say that... Chair Furfaro: I will do that... the question here for all of us is the Resolution is the acknowledgment of that negotiation and so I'm now going to ask Amy if you can comment for the Councilmembers benefits. Ms. Esaki: Sure. We will need the Resolution to commence negotiation that would be the authority for the County Attorney's Office to commence negotiations. Although we have been in communication, we will need that Resolution. Chair Furfaro: Okay thank you Amy. The floor recognizes Mr. Rapozo then Mr. Chang. Mr. Rapozo: Then I would just... if after the discussion if you could suspend the rules and have the representative the landowner up, I have a " question for him. Chair Furfaro: Mr. Chang. COUNCIL,MEETING January 12, 2011 29 Mr. Chang: Thank you. I'm sorry Amy Esaki, I couldn't hear you and I'm not sure the gallery could hear either I couldn't hear your comments. Chair Furfaro: Let me restate what she said then... for the purposes of negotiating, beginning negotiations the County Attorney's Office has indicating to us... Ms. Esaki: We need... Chair Furfaro: They need approval of this Resolution for the purpose of beginning negotiations. Let me just clarify that statement first Amy and if you could talk to the group and if your mic is not functioning, let's use the County Clerks. Ms. Esaki: The Resolution will authorize the County Attorney's Office to enter into the negotiations... Chair Furfaro: I'm sorry we can't hear you Amy. Ms. Esaki: Oh. You still can't hear me? Okay... if you look at Section 2 of the Resolution it is clear that the Resolution authorizes and empowers to institute proceedings in the negotiations with the landowner. So that's why we need the Resolution in order to start the process; however, I believe there's been some communication between the landowner and the County. Chair Furfaro: Did that satisfy you Mr. Rapozo? The floor recognizes you for a question then Councilmember Yukimura. Mr. Rapozo: I guess for me I'm trying to determine what is that proceedings, what does institute proceedings mean, does that entail any kind of cost where we retain a Special Council for eminent domain... Ms. Esaki: No. Mr. Rapozo: This is a generic question. Ms. Esaki: We're attempting to do a friendly purchase... Mr. Rapozo: Right. Ms. Esaki: Yeah. Mr. Rapozo: And I understand that the negotiation has already begun. Ms. Esaki: Generally in the past as far as acquisition of land we've gone through this Resolution first. Mr. Rapozo: Yeah I know but I'm just saying what does the initiate proceedings mean? Ms. Esaki: Initiate... COUNCIL MEETING January 12, 2011 30 Mr. Rapozo: As you stated, you highlighted that in Section two (2). Ms. Esaki: Yeah. Mr. Rapozo: What does the County Attorney's Office intention if this gets passed? What institute proceedings mean? Ms. Esaki: Means to negotiate with the landowner in a friendly condemnation, in other words... Mr. Rapozo: What I understand and that's why I want representative to come up is I understand the negotiations have occurred and in fact are continuing. Ms. Esaki: Well I believe we have had discussion but I guess this will be the authority for us to enter into the final round of the negotiations. Chair Furfaro: Okay so before I ask them to come up and suspend the rules, again the County Attorney's Office is implying to us that this Resolution will actually trigger what is known as friendly condemnation and that they can begin entering into action other than unfriendly. Ms. Esaki: Right and again we generally don't this as far as... unless we have the authority, this will be the formal authority by the Council to our Office to proceed. Chair Furfaro: Okay and on that note, I will suspend the rules and ask... is that Mr. Wilson in the back, I'm sorry... Mr. Wilson would you like to come up to the mic and the rules are suspended. There being no objections, the rules were suspended. Chair Furfaro: Did you catch everything that our County Attorney? Mr. Wilson: I did Mr. Chair and members of the Council. We've actually, Mr. Sheehan as the landowner, has been in negotiations, not just discussions with the Mayor, the County Attorneys, Finance Director for probably the better part of a year. The Administration walked the property, we've received an appraisal. We've been requesting from the Administration a formal offer of the property. I think Councilwoman Yukimura brought up a good question about appraisals, what really is happening now in Circuit Court is that there was some proceeding before the Planning Commission, there's really two (2) layers of permits on Mr. Sheehan's property, one I think everybody's familiar with where the permits had allowed him to operate a boatyard, those permits at the Commission level were revoked, there's an appeal pending before presently before Judge Valenciano. I think it's scheduled for February 18, the import for that is obviously until you know what the uses of the property are it's difficult to give a valuation. Until that process goes through, it's not as simple as just pulling a property appraisal. What I understand obviously from Mr. Sheehan is this is not a time sensitive issue for him, COUNCIL MEETING January 12, 2011 31 I don't believe it's a time sensitive issue for the County. Mr. Sheehan is willing and thinks it would be a very good productive, beneficial transfer sale for people of Kauai especially on the North Shore because this property abuts Woke Road and Black Pot Beach Park. The problem is, it's going forward, I'm a little concerned in reviewing what the Resolution is because right now we are very friendly, my biggest concern with Mr. Sheehan is if this Resolution means the County is going to file a formal of proceeding for condemnation, we're going to be going a parallel track because obviously in condemnation you having an unwilling landowner and you have a dispute on value. Well in this situation you have a willing landowner, we're not at a dispute on valuation because quite frankly no one knows what that ultimate valuation is going to be until the Circuit Court action goes forward. Again I don't want to fine Mr. Sheehan and I don't think to the County's benefit doing a two (2) parallel tracks because of the increase in cost as Councilmember Rapozo mentioned. Because it seems we've already engaged in negotiations, it wasn't my understanding that any further action in this point in time until we get to a point where the County has made an offer, it's either accepted or there's... at the end of the day the rubber hits the road of negotiations because obviously you folks have the purse strings, it would come to you folks. I think that's kind of where we're are at this point in time and if there's any questions Mr. Chair, members of Council, I'd be more than willing to assist if I can. Chair Furfaro: Okay let me just summarize your statement here and make sure that we have an understanding. Based on the fact that the value in your opinion is based on some evaluation of the use, you are waiting for that opportunity. We're saying here that for us to conduct the next step and I have no problem either way, the next step we can initiate at the request of the County Attorney, this Resolution that the Council acknowledges that we've entered into a friendly agreement to negotiate a fair and reasonable price and they have our authorization or we can at the framework that we have now, do our session on February 9th to have an Executive Session in the morning to get some more particulars discussed by the Council and following in the later afternoon, review this Resolution again. Those to me are the options of this body who does control the financial matters of the County. Mr. Wilson: Mr. Chair, I think of the two (2) choices in terms of deferring it, if there are specific questions from any individual Council people it can be referred, I can... if the Council would want that, I can even appear back on the 9th for a regular session if there are additional questions but a deferral in light of, we have new people that have come back to the Council that may be the most appropriate... of course I'm not saying what you should do... Chair Furfaro: I understand your point too but my motion to have an Executive Session was exactly for that benefit to bring current and new members up to date on things that are yet in the public record regarding even the appraisal, we would do that in Executive Session. I'm just asking on your part, do you have anymore to add before we look at those two (2) options? A deferral until February 9th with an Executive Session in the morning, followed by this Resolution appearing:again on the agenda, or you know.us indicating now that we would take,a, vote on this Resolution which actually authorizes the County Attorney's Office that the Council is in favor of beginning dialog with the ownership. Mr. Wilson: In terms of those two (2) things I think taking a vote now might be cart before the horse, it's only a couple of weeks away COUNCIL MEETING January 12, 2011 32 and if there are any questions like I said, Mr. Sheehan or myself at least we can have the input so the full Council understands exactly what the ramifications of going forward as opposed going through negotiations which we've been engaging for the last year. If there's any questions Mr. Chair... Chair Furfaro: I will ask the members but I am fine either way. Councilwoman Yukimura do you have a question? Ms. Yukimura: No I don't but I do have some comments after you... Chair Furfaro: Okay. Ms. Yukimura: Thank you. Chair Furfaro: We have no more questions for you Mr. Wilson. Mr. Wilson: Thank you Mr. Chair. Chair Furfaro: And I will call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: I will at this point share with my opinion with the other Councilmembers... the caution here until we brief everybody about having discussion going further, that would be my comment right now, so on that note our meeting is called back to order, I would like the County Attorney to be very attentive to any questions to come up next. Councilwoman Yukimura the floor recognizes you. Ms. Yukimura: Yes Mr. Chair, thank you. Given everything I heard I have a sense that we should have a briefing as soon as possible and not wait until the 9th which is actually a month away because we need to hear from our Attorney in terms of time constraints and so forth. I think and so... I would like to ask that you schedule it as soon as possible and with advice from our attorney we can then decide where we should go. Chair Furfaro: Understood and I'm sorry my original intentions conflicted with you and Mr. Bynum's travel schedule but I understand... Ms. Yukimura: I'm thinking even before that. Chair Furfaro: I understand that. I clearly understand that perhaps if we could have something earlier in January... Mr. Rapozo. Mr. Rapozo: Thank you. I just wanted to make it clear that I fully support the effort. I think that this County's direction to acquire those lands are, should be a priority, I think that would really benefit the community but I don't think this tax payers should go through unnecessary cost... If there is a friendly discussion going on and from what I hear it's going on for well over a year, I think we should continue on that path and have that friendly discussion. You know COUNCIL MEETING January 12, 2011 33 I'm not very pleased with the result of the last friendly condemnation that occurred that we still don't know how much that final outcome was, the cost. I just think the people deserve to be informed and if there's going to be additional cost to this condemnation proceedings, which what is a proceeding is that means... and that's what I'm going to ask the County Attorneys, and I don't believe that should even be in Executive Session, I think if I want to know what is the County proceeding, I don't think that's Executive Session material. If we're going to hire Special Council that specializes in condemnation, I want to know. I want to know how much, I want to know what's the timeframe, that's not Executive Session material, that is material the public should know before we make a vote on something that really has no real information other than the wishes of the County Attorney. So that's all I'm asking for. The negotiation details, the facts and circumstances of litigation... that belongs in Executive Session but the fact that we're going to proceed with condemnation is a public matter, it's not an Executive Session matter. Chair Furfaro: Let me just answer that again... no one is talking about proceeding with an unfriendly condemnation here, what we're talking about exactly that is getting us to a point that we can enter into a negotiation. Negotiations are Executive Session material. Before I recognize you Councilwoman Yukimura... Ms. Yukimura: Yes sure. Chair Furfaro: We can put this in on the 26th of January. Ms. Yukimura: Is there any chance we can do it before that Council Meeting? Chair Furfaro: We're then a week away from having our County Attorney prepare the... Ms. Yukimura: Well Mr. Chair. Chair Furfaro: Background for us. Ms. Yukimura: Well I think the County Attorney's ready to . brief us at any time, he's just not here today and according to Mr. Wilson... what they're waiting for is a formal offer from the County which I know the County can't make without this Resolution. Chair Furfaro: Okay, I would caution us to going into any facts knowing that somebody has made a formal offer and so forth... Ms. Yukimura: Well I only based it... that's correct. Chair Furfaro: I want the whole body to be briefed Councilwoman. Ms. Yukimura: And that's why we need an Executive Session as soon as possible. Chair Furfaro: I have the 26th right now. COUNCIL MEETING January 12, 2011 34 Ms. Yukimura: Okay. Chair Furfaro: Looking at a date. Ms. Yukimura: Oh Mr. Chair maybe we can do it just like the 91h where we have something early, the briefing early? Chair Furfaro: Okay. Ms. Yukimura: Before it comes up on the agenda but we can... Chair Furfaro: Let me pose a question to the County Attorney's Office? Can we do the 26? Ms. Esaki: 26th9 Chair Furfaro: In the morning? Ms. Esaki: I believe so, we just have to check with our deputy's calendar. Chair Furfaro: Okay. Can we do the 19th9 Ms. Esaki: The 19th of January? Chair Furfaro: Yes. Mr. Nakamura: I'm sorry Mr. Chair that would be the 20th because of the 19th is the Opening of the Legislation. Chair Furfaro: Oh, that's right. Some of us are coming back from the Legislative Opening. Ms. Esaki: I believe so, that would be... Chair Furfaro: So that would be the 20th Ms. Esaki: Yeah the 19th or 26th, yeah. Chair Furfaro: 20th. Ms. Esaki: Oh 201h, I'm sorry... yes.. Chair Furfaro: Okay we have time to raise that on a question, first option is a briefing in the morning on the 20th, second option if that doesn't work because it's the date after the Legislature Opens, we'll go for the 26th. Mr. Nakamura: Mr. Chair just in terms of the calendar if we could... the motion would be to defer the Resolution itself to the 26th because the 20th would be a Committee Meeting so. Ms. Esaki: Yes. COUNCIL MEETING January 12, 2011 35 Mr. Nakamura: So the Executive Session briefing would be scheduled on Thursday the 20th during the Committee Meetings and the Resolution itself would be deferred to the 26th agenda. Chair Furfaro: Understood. Councilwoman Yukimura. Ms. Yukimura: Unless we find it in our briefing the time is of the essence. Well we haven't heard from our attorney. Chair Furfaro: Okay well we can go back here, the meeting is now called back to order earlier but I want to say that these are the options right, now that someone would introduce a briefing on January 20th in the morning by the County Attorney's Office and the Resolution cannot come back until the 26th, is that correct? When we have a full Council Meeting. Ms. Yukimura: Okay. Chair Furfaro: Now, I cannot propose that, I would need somebody to propose that. Mr. Rapozo: I believe my motion to defer would trump the motion to approve, right? Mr. Nakamura: Correct. Mr. Rapozo: Okay let me just make a motion to defer Resolution No. 2010-59 to January 26, with a Executive Session scheduled for this discussion on January 20th. Ms. Yukimura: Second. Chair Furfaro: Which is a Thursday. Ms. Yukimura: Second. Mr. Rapozo moved to defer Resolution 2010-59, seconded by Ms. Yukimura, and unanimously carried. Chair Furfaro: Next item Mr. Clerk. Mr. Nakamura: On page four (4) of the Council's agenda the next Resolution for approval is Resolution No. 2011-04, Draft 1. Resolution No. 2011-04 Draft 1, RESOLUTION TO ESTABLISH A HUMAN RESOURCES SUB-COMMITTEE TO THE COMMITTEE OF THE WHOLE„TO REVIEW AND PROPOSE REVISIONS TO THE PERSONNEL OF THE COUNTY COUNCIL AND COUNCIL SERVICES OF THE COUNTY OF KAUAI: Ms. Yukimura moved to adopt Resolution No. 2011-04, Draft 1, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, COUNCIL MEETING January 12, 2011 36 AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next item. Mr. Nakamura: Next Resolution for approval at the bottom of page four (4) is Resolution No. 2011-05, Draft 1. Resolution No. 2011-05 Draft 1, RESOLUTION TO ESTABLISH A RULES SUB-COMMITTEE TO THE COMMITTEE OF THE WHOLE TO REVIEW AND PROPOSE AMENDMENTS TO THE RULES OF THE COUNTY COUNCIL OF THE COUNTY OF KAUAI: Mr. Chang moved to adopt Resolution No. 2011-05, Draft 1, seconded by Ms. Yukimura. Chair Furfaro: Anyone in the audience wishes to speak on this item? Mr. Mickens. There being no objections, the rules were suspended. Mr. Mickens: Thank you again Jay, for the record Glenn Mickens. I appreciate your words asking the Council to kindly address members of the public while we sit here instead of calling the meeting back to order, going back to your seat and not being able to respond but I do appreciate that Jay, thank you. You have a copy of my testimony, it's not very long. In my opinion it appears that Rules 10(a) and 10(c) are inconsistent and need clarification. I believe that each member should be entitled to place a bill or a resolution on the agenda, so if 10(c) is interpreted to give the Chair a veto power, it should be modified. I have every confidence that Chair Furfaro would see to it the A is strictly enforced but in the event that a new Chair wished to use C in an inappropriate way then clarity must be made. If the situation Mel envisions should occur when the Chair should have the power to prioritize the submissions to avoid confusion, but each item proposed should be allowed on an agenda. I would suggest that all items be prioritized and placed on the agenda accordingly. But all items would have to be on the agenda say in 30 days or less with no exceptions eliminating any veto power by the Chair. He along with the County Clerk could be the ones to prioritize these issues with no problem. But (a) should always rule. And I would again respectfully request that these rules are amended to give the public a 15 minute period to speak on any government related issue they chose. Time would be allocated by the Chair for each speaker contingent on how many are present and wish to speak. I believe that this would truly open up the democratic process for the public. Thank you again Jay. Chair Furfaro: You're welcome. Any questions of Mr. Mickens testimony? Mr. Bynum. Mr. Bynum: Glenn I just want to respond to what you said earlier about I'm attempting to follow the rules. My understanding is that COUNCIL MEETING January 12, 2011 37 when the public testifies, the Councilmembers engage if they have questions of the public. If Counci.lmember wants to make a comment then we wait for the meeting to be called back to order and do the comments at that time, that's not the intention of testimony to engage in a... debate or dialog and so the practice that I've been trying to follow is that if you or any member in the public make comments that I want to comment on... like I am now, I see that as occurring after the meeting is called back to order and if I have questions... Mr. Mickens: But when you... Mr. Bynum: Do you understand the distinction? Mr. Mickens: Sure but when you or any member though makes the comment directly to the person, their name, I think that person should be here to be able to have some means to respond to what you're saying. I don't see any problem there. If you say as a general rule, that's your prerogative if the meetings come back to order but if you mention my name, one time with all due respect Kaipo did that, said Mr. Mickens is directly wrong, I wasn't wrong, I went back and got the minutes and showed him but I couldn't say that, I was sitting back there in the chair. So all I'm saying is you know if you want to mention my name or you have a problem with what I said, I'm not against volunteers Tim... not at all, I'm not saying that and this is was the impression I got from the three (3) people that testified, that's all. Chair Furfaro: Glenn, I gave you a little bit more liberty. Mr. Mickens: I appreciate that Jay. Chair Furfaro: I just want to say my comments were intended for all members to try to constantly make some improvements. Mr. Mickens: Right. Chair Furfaro: And be sensitive and let's leave it at that. Mr. Mickens: Okay, thank you very much. Mr. Bynum: So Glenn, I understand what you're saying and I'm thrilled that we are having this focus and dialog about our rules and I don't think anything other than good will come from that and I want to be respectful and so I'll continue this dialog with our current Chair about you know how do we meet the intention because I know we're supposed to respond with questions, if we have questions but if we have comments, that's not the intention. But in terms of what you're testifying on today, I appreciate it and I agree with you, not totally but and I believe there will be some proposals to clarify this rule. Clearly the Chair is the coordinator of our agenda and you know I'd be reluctant with time limits on when he place something but I agree with your intention that rule (a) is clear, consistent with democratic principles, that the minority have a voice. But the Chair needs the latitude to manage the agenda and if that means delaying thirty (30) days or six (6) weeks or you know but not indefinitely. That we want to give the Chair flexibility... Mr. Mickens: Sure. COUNCIL MEETING January 12, 2011 38 Mr. Bynum: To do that management. So let's see what comes up out of the Rules Committee, Sub-Committee right now we're just establishing the Committee so there'll be opportunity to discuss this further. Mr. Mickens: I appreciate dialog Tim and I do appreciate Chair Furfaro's continual dialog that you do respond to the public from time to time when it's appropriate but you do answer questions and I do appreciate that. Thank you Jay. Chair Furfaro: Is there anyone else who would like to speak on this item?Yes Mr. Stoessel. Mr. Stoessel: Thank you Mr. Chairman. I don't like prolonging this, I would like to observe that it appears to me that this entire conversation was out of order. The agenda item simply has to do with establishing this Sub-Committee, thank you. The meeting was called back to order, and proceeded as follows: Chair Furfaro: Thank you for that. And again we try to give the public a little bit more leeway but we all as members when we respond, we need to know what the parameters are. Thank you Mr. Stoessel. Okay, is there anyone else in the public that would like to speak on this item? If not, we have a motion and a seconded and this will be a roll call vote. The motion to adopt Resolution No. 2011-05, Draft 1, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: We're on page five (5) of the Council's agenda on Resolutions, Resolution No. 2011-06. Resolution No. 2011-06, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Brad R. Nagano): Mr. Bynum moved to approve Resolution No. 2011-06, seconded by Mr. Chang. Chair Furfaro: Mr. Chang. Mr. Chang: Thank you Chair. I just wanted to let the public know and the viewers know that yesterday we went through a process of probably a little over four and a half (4 %2) hours to ask questions and to talk with all these people that we are hopefully approving this morning, so I just wanted the general public and the viewers to listen to the names of these individuals because they are all very skilled, very professional, they know the subject, they know the Commission that they are involved in but I do think it's important for us to recognize the names and these people because again they are on a volunteer basis COUNCIL MEETING January 12, 2011 39 and they do a lot for the communities, so I just wanted to say that in advance Mr. Chair. Chair Furfaro: Thank you. Mr. Bynum. Mr. Bynum: And as we go through this list of individuals, I just also wanted to say upfront that we did have this great and I think meaningful and productive dialog and we've established the Boards and Commissions, Office of Boards and Commissions to give Commissioners support. If you go into their office in the round building, you see they've taken and have the pictures of the individuals on the wall with... who are involved in the various Boards and Commissions. I don't know what the total number is but it must be over a hundred people and it's very impressive, you look at that wall and say boy this is a real cross section, a diverse group of individuals in the community we are stepping up and giving their expertise and involvement. The Council's responsibility is to review those and to confirm those individuals. Speaking only for myself, I appreciate these individuals stepping up. I think they are a great group. I can't imagine too many circumstances where I wouldn't confirm a volunteer's willingness to voluntarily contribute to the governance of our community. There had to be some strong reasons not to do that but having said that the Administration, I think Jon Isobe and the Mayor, selected really good individuals and so I want to commend all of those people who are stepping up. I intend to vote on all of these favorably today. Thank you very much. Chair Furfaro: Thank you. Councilwoman Yukimura. Ms. Yukimura: Yes I want to second what both Councilmember Chang and Bynum have said, and I want to add that these Boards and Commissions do very, very important work for the County and affect hundred and thousands of dollars at least in terms of their oversight and their decision making about who leads our Departments and what kinds of permits are issued and what kind of oversight there is on a lot of our operations. So they form a very, very important part of County government and the Council does have a responsibility and I thought yesterday's discussions really helped bridge some communication because they represent the Administrative side, we represent the Legislative side. Have a check and balance in our confirmation power and also can give support in terms of budget and so forth to their work. So the dialog yesterday I felt was helpful and I appreciated the responses and the willingness to dialog. Thank you. Chair Furfaro: Thank you very much. Any further discussion on this item? If not, Mr. Clerk. We have a roll call vote. The motion to adopt Resolution No. 2011-06, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL 6, AGAINST ADOPTION:, , , . None TOTAL — 0,, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. COUNCIL MEETING January 12, 2011 40 Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-07. Resolution No. 2011-07, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE POLICE COMMISSION (Charles Chu Chun Iona): Mr. Rapozo moved to adopt Resolution No. 2011-07, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-08. Resolution No. 2011-08, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Dane K. Oda): Mr. Chang moved to adopt Resolution No. 2011-08, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-09. Resolution No. 2011-09, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CHARTER REVIEW COMMISSION (Edgar Sevier Justus Ili: Mr. Chang moved to adopt Resolution No. 2011-09, seconded by Ms. Yukimura, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-10. Resolution No. 2011-10, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CIVIL SERVICE COMMISSION (Gilbert F. Maerina): Mr. Chang moved to adopt Resolution No. 2011-10, seconded by Ms. Yukimura, and carried by the following vote: COUNCIL MEETING January 12, 2011 41 FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-11. Ms. Nakamura recused herself from voting on Planning Commission and Water Department appointees. Resolution No. 2011-11, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE PLANNING COMMISSION (James E. Nishida, Jr., (Environmental)): Ms. Yukimura moved to adopt Resolution No. 2011-11, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL — 1, RECUSED: Nakamura TOTAL — 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-12. Resolution No. 2011-12, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Kurt Seichi Akamine): Ms. Yukimura moved to adopt Resolution No. 2011-12, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Kawakami TOTAL — 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-13. Resolution No. 2011-13, RESOLUTION CONFIRMING MAYORAL. APPOINTMENT TO THE COST CONTROL COMMISSION (Lawrence Chaffin, Jr.): Ms. Yukimura moved to adopt Resolution No. 2011-13, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL- 1. COUNCIL MEETING January 12, 2011 42 Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-14. Resolution No. 2011-14, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF WATER SUPPLY (Leland K. Kahawai). Mr. Rapozo moved to adopt Resolution No. 2011-14, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1, RECUSED: Nakamura TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-15. Resolution No. 2011-15, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Mark S. Hubbard): Ms. Yukimura moved to adopt Resolution No. 2011-15, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL- 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-16. Resolution No. 2011-16, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BUILDING BOARD OF APPEALS (Michael S. Kano (Fire)): Ms. Yukimura moved to adopt Resolution No. 2011-16, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Kawakami TOTAL - 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-17. COUNCIL MEETING January 12, 2011 43 Resolution No. 2011-17, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BUILDING BOARD OF APPEALS (Miles Akira Tanabe (At-Large)): Ms. Yukimura moved to adopt Resolution No. 2011-17, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL- 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-18. Resolution No. 2011-18, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF WATER SUPPLY (Randall T. Nishimura): Ms. Yukimura moved to adopt Resolution No. 2011-18, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL — 1, RECUSED: Nakamura TOTAL — 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-19. Resolution No. 2011-19, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE SALARY COMMISSION (Robert Blair Crowell): Ms. Yukimura moved to adopt Resolution No. 2011-19, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL- 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-20. Resolution No. 2011-20, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE SALARY—COMMISSION (Sheri S. Kunioka-Volz): Ms. Yukimura moved to adopt Resolution No. 2011-20, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL—6, AGAINST ADOPTION: None TOTAL— 0, COUNCIL MEETING January 12, 2011 44 EXCUSED & NOT VOTING: Kawakami TOTAL — 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-21. Resolution No. 2011-21, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Shirley T. Akita): Ms. Yukimura moved to adopt Resolution No. 2011-21, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: Next Resolution for approval is Resolution No. 2011-22. Resolution No. 2011-22, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CIVIL SERVICE COMMISSION (Stephanie A.M. Lani Aranio): Ms. Yukimura moved to adopt Resolution No. 2011-22, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL— 1. Chair Furfaro: Next matter. Mr. Nakamura: On top of page six (6) last Resolution for approval is Resolution No. 2011-23. Resolution No. 2011-23, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (William F. Gibson): Ms. Yukimura moved to adopt Resolution No. 2011-23, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kawakami TOTAL — 1. Ms. Yukimura' Mr. Chair can we have... Chair Furfaro: Yes? Ms. Yukimura: Can we have a recess? COUNCIL MEETING January 12, 2011 45 Chair Furfaro: Actually I was going to do that next. Ms. Yukimura: Thank you. Chair Furfaro: We are going to take a ten (10) minute recess and a caption break at the same time. There being no objections, the Council recessed at 11:15 a.m. The Council reconvened at 11:35 a.m., and proceeded as follows: Chair Furfaro: We're back from caption break and Mr. Clerk can we go to the next item? Mr. Nakamura: Mr. Chair, we're on page six (6) of the Council's agenda on a bill for first 'reading, this is proposed draft Bill No. 2395. BILL FOR FIRST READING: Proposed Draft Bill (No. 2395) - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 3, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE SALARIES OF COUNTY OFFICERS AND EMPLOYEES: Mr. Rapozo moved for passage of proposed draft Bill No. 2395 on first reading that it be ordered to print that a public hearing thereon be scheduled for February 9, 2011, and that it thereafter be referred to the Committee of the Whole, seconded by Mr. Bynum. Chair Furfaro: Thank you. It has been moved and seconded and I will suspend the rules if there's public testimony at this time on this item. Mr. Rapozo: Mr. Chair if I may? I would ask that we introduce the amendments, there are two (2) floor amendments for this bill and in order for the public to be able to testify on the entire bill and it's going to move to the public hearing, I would ask that we do that first, if that's okay? Chair Furfaro: That's fine with me. Are these amendments that are going to be introduced now? Mr. Rapozo: Yes, if I may I would like to introduce an amendment as you can see, introduced by myself and it really is a housecleaning amendment we forgot to add in Director of Housing on the list, in the initial bill. So all it is, is an addition of Director of Housing into the Section 3-2.5 defined jobs or positions, so I would move to amend as circulated. Mr. Rapozo moved to amend Proposed Draft Bill No. 2395 as shown in the Floor Amendment attached hereto as Attachment 1, seconded by Ms. Yukimura. Chair Furfaro: We would probably make sure there's copies for the public although it's mostly housekeeping items and... is there any discussion from the public on this amendment? Peter has it there on that side... let's be consistent about our amendments and put them on the podiums in the future, staff. Let's hold on a second for those that want to get copies. Thank you COUNCIL MEETING January 12, 2011 46 Mr. Morimoto. Is there any testimony on that as circulated? If not, we'll call for the question as circulated. The meeting is called back to order. The motion to amend Proposed Draft Bill No. 2395 was then put, and carried by a 6:0:1 vote (Mr. Kawakami was noted excused). Chair Furfaro: Do we have additional floor amendments to introduce? Ms. Yukimura: Yes Mr. Chair. I'd like to move as circulated, it's a two (2) page amendment and if I can get a second, I will explain. Mr. Bynum: Second. Ms. Yukimura moved to amend the bill as amended, as shown in the Floor Amendment attached hereto as Attachment 2, seconded by Mr. Bynum. Ms. Yukimura: Thank you. This amendment honors and codifies the Salary Commission recommendations that pay raises be tied to performance and it sets a procedure for doing that. The importance of tying pay raises to performance was mentioned by Mr. Crowell and Ms. Kunioka-Volz yesterday in our discussions with Mayoral appointees to the Salary Commission. It also aligns with the Civil Service model, in fact I think it was Mr. Crowell who said we did this so that the managers and officers of the County would be subject to the same process that Civil Service people are. A performance measurement that insures minimal performance or a certain level of performance and it would insure that the process with respect to leaders and managers would be setting the example of the policy we want. It's the best practice and it's a way to encourage and support good performance. Chair Furfaro: Okay. I'll suspend the rules. Mr. Stoessel do you have a copy of this? There being no objections, the rules were suspended. Mr. Stoessel: Thank you Mr. Chairman. I owe the Council an apology, I'm going to talk a little bit about assumptions and I made an assumption that this item probably wouldn't come up until four (4) or five o'clock (5:00) this afternoon and I was wrong... so I'm still here and I would like to comment on this proposed amendment. There are two (2) assumptions that I think particularly deserve attention that have been operative in this process ever since the Charter was amended in 2006. The first assumption, it appears to be the case that until Mr. Rapozo introduced this bill that there was a prevailing assumption that any non-salary provisions in salary resolutions were authoritative unless the Council specifically rejected them. I don't believe that that assumption has any basis. What this amendment raises is the question of if the Council itself adds non- salary provisions to the Salary Ordinance are those additions automatically justified. I do not believe that adding these conditions in this Resolution, excuse me... in this amendment, is justified. It involves the assumption that the Council can impose conditions that negate the authority the Charter gives to appointing authorities. And one of the most difficult thing apparently for people to understand since the Charter was amended is that those who appoint non-elected officials have the... first of all they have the authority to appoint them. And secondly, under that COUNCIL MEETING January 12, 2011 47 Charter amendment they have the authority to determine the salary of the people they appoint up to whatever ceiling, the Salary Commission says. Now this amendment essentially copies what was in the last version of a salary resolution last November which among other things lays down three (3) conditions that must be met before an appointer can raise somebody's salary. I'd like to know what the statutory authority is for that kind of condition, and I don't want to drag this out because I anticipate probably following it up in the public hearing but I... this is the reason I said earlier... I believe if this amendment is added, it will simply perpetuate confusion that has been there ever since 2006. Thank you. Chair Furfaro: Thank you. The floor recognizes Mr. Bynum, then Councilwoman Yukimura. Mr. Bynum: Thank you for your testimony and so I'm a little confused and we'll work that out in the public process, but I thought in earlier conversations that you felt that the Salary Commission did not have the authority to set criteria for raises, right? Mr. Stoessel: That's correct. Mr. Bynum: Okay. And now you're saying the Council doesn't have that authority either? Mr. Stoessel: Yes. Mr. Bynum: Okay. So I want to make sure I understood your testimony... Mr. Stoessel: Okay. Mr. Bynum: And those are questions we should ask of the County Attorney in this process, but I agree with you that the appointing authority has the right to appoint who they choose, right? But I don't know that the Council can't set criteria for what salary increases should be, but that's a good question... Mr. Stoessel: Well... Mr. Bynum: And we'll ask it. Mr. Stoessel: The question is whether it can be justified, what the Council puts in place can be justified in light of what's in the Charter. Mr. Bynum: Right. Mr. Stoessel: And that's the question I'm raising. Mr. Bynum: ,, , . And that's a great question. I really thought that this amendment would address your concern. Mr. Stoessel: No. Mr. Bynum: That the criteria would be set by the Council as opposed to it being set by the Salary Commission, because I know the Salary COUNCIL MEETING January 12, 2011 48 Commission felt and they... at least some members confirmed that yesterday that the appointed individuals should have an evaluation and that there should be an expectation that they met minimum standards. And I think that's a pretty popular sentiment among the public but people who are paid six (6) figures should get evaluated... Mr. Stoessel: Oh yes. Mr. Bynum: Periodically and should meet minimum criteria before their rewarded a salary... Mr. Stoessel: And I do not disagree with that, my point is that the... an attempt to set such conditions in the salary ordinance is very difficult to defend and one (1) reason is that as I stated in the... my testimony back in 2004 which I believe you got a copy of, I believe it's impossible to establish a workable system of performance evaluation in the kind of political structure we have and I'll save saying anymore of that for the public hearing. Mr. Bynum: Okay. Thank you. Mr. Stoessel: Thank you. Chair Furfaro: Councilwoman. Ms. Yukimura: Thank you Mr. Stoessel. So is it your assumption that the authority of the appointing authority includes the power to set salary within the limit set by the Salary Commission? Mr. Stoessel: I didn't hear the last thing you said. Ms. Yukimura: Is it your assumption... Mr. Stoessel: Yeah. Ms. Yukimura: In your position, that the power to appoint includes the power to set salary within the bounds of the Salary Commission? Mr. Stoessel: No it's not the power to appoint, it's the power that's in the Charter that says these appointers have this authority. Ms. Yukimura: It doesn't say they have the authority to set salaries. Mr. Stoessel: They have the authority to set the salary at or below the ceiling set by the Salary Commission. Ms. Yukimura: That's the authority... right but... okay but is it that they... that there's no power in the Council to set guidelines for how they do that? I mean who had that power before the Salary Commission existed? Mr. Stoessel: Before the Salary Commission existed, there was one (1) condition or one (1) provision in the Salary Ordinance and what it said COUNCIL MEETING January 12, 2011 49 was Department Heads can set the salaries of deputies below the figure in the ordinance... Ms. Yukimura: But... Mr. Stoessel: That was the only thing that was in there. Ms. Yukimura: I know... but that was an ordinance, that was an assertion of the county's Council legislative power to set how salaries are set. So if we have that power and if the Salary Commission doesn't have that power then we should have the power now. Mr. Stoessel: I'll fight it. Ms. Yukimura: Well you found it before in... I mean it was there... if we created a salary ordinance that was our power. I mean we were asserting our power which is inherent in the Charter of a Legislative body to set issues regarding county operations. Mr. Stoessel: But what are you talking about here on the one (1) hand appointers have the authority to set the salary. This amendment which is drawn from a salary resolution sets conditions on that authority and says you can't raise these salaries unless you meet these conditions. All I want to know is what... where is the statutory authority for the Council to do that? Ms. Yukimura: The general authority to govern things that... govern the operations of the County. Mr. Stoessel: Well that's not very convincing to me... if you look at the Charter. It's the Charter that grants these folks the authority to set those salaries and does not say anything about any conditions they have to meet... Ms. Yukimura: Well ah... Mr. Stoessel: In order to do that. Ms. Yukimura: I don't think it has to but I think it's inherent in the power to set salaries and the salary... I would argue that even the Salary Commission has the power to do that, inherent in its powers to establish salary levels. But if it isn't, if they don't have the power then the Council certainly does. Anyway we probably can... Mr. Stoessel: Yeah. Ms. Yukimura: Probably do have to have it determined... Mr. Stoessel: I'd be happy to continue this at the public hearing. Ms. Yukimura: Alright. Mr. Stoessel: And I thank you for your attention today. COUNCIL MEETING January 12, 2011 50 Chair Furfaro: Thank you. Ms. Yukimura: Thank you. Chair Furfaro: Is there anyone else in the public that would like to give testimony on these amendments? Seeing none, okay. The meeting is called back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: We have a motion and a second on these amendments, we'll take the first amendment discussion if any? Mr. Rapozo: This amendment right here? Chair Furfaro: Yes. Mr. Rapozo: I just want to make a real quick comment. I'm going to support the amendment today, going forward and to get it to the public hearing, I do intend to get some clarification on the testimony of Mr. Stoessel which I find convincing. The one (1) part in here that I do have a question of that I would ask Councilmember Yukimura to take a look at is the third paragraph in Section three (3) where it says the Director of Personnel shall provide the Salary Commission with a list of names and positions of all non-elected officers and employees covered under sub section (a), indicate whether or not they have met the performance evaluation, and include the recommended salary increase. I think I have a concern with that because I don't think they set salaries for persons or people, they set for positions, and it's up to the County Administration to administer the specific raises or salaries to the specific people. I do somewhat agree that this may be in conflict with the Charter. The only problem we have in this situation is that one of the affected positions is the County Attorney and under our conflict of interest rules, he stands to get a direct... could stand to get a direct benefit of salary increases so I'm concerned that that might affect his ability to even do an opinion on this. So that causes another issue that needs to be explored, but as far as for today's purposes I'm going to be supporting the amendment and addressing those concerns that I just mentioned. Chair Furfaro: Any further discussion? Mr. Chang. Mr. Chang: The discussion just would be housekeeping. On the top of Councilmember Yukimura's amendment on page number two (2), we have the Director of Liquor Control, but we failed to include the Boards and Commissions Administrator and I think that's just an oversight, yeah? Is that correct Councilmember? Ms. Yukimura: Thank you for noting that. I guess I need to... an opinion from the Clerk, can we just all pencil it in or should we'... Chair Furfaro: Well I have taken the position that when you vote on an amendment, it needs to be corrected... Ms. Yukimura: Yes. COUNCIL MEETING January 12, 2011 51 Chair Furfaro: And not penciled in. Ms. Yukimura: I believe that is our... Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I can clarify that some of the positions... the Administration was recently restructured as well. There are some other positions that was recently created that are appointed positions. We are waiting and I was working with staff, Mr. Morimoto, we are waiting that information from the Administration and I expect another floor amendment at the Committee level that would include and Boards of Commissions list... it's a Charter mandated position, we're waiting, we're working with the Administration. as we speak to determine which positions in fact belong in 3-2.1. So there will be more amendments coming forth in the Committee. Chair Furfaro: So in other words, Mr. Rapozo is saying we can fix it later, but the reality is someone has to communicate to the Administration that we need to identify all of those changes so that when we do reach this listing, we know that we have a current and accurate posting. So there is a deadline for the Administration to meet on identifying new positions, title changes, so that they are all covered, and I won't accept anything just by lining it out and... Ms. Yukimura: Right. Chair Furfaro: Writing it in. Ms. Yukimura: And Mr. Chair as I'm trying to understand how this... my proposal is amending the bill as we have it before us, it's not clear either because this is a section (a) but... yeah... so I think they're working... Perhaps we can move this to the end of the agenda and get at least this amendment fixed and then we have to do further fixing when the Administration comes forward. Chair Furfaro: Well that's... so we're back to Mr. Stoessel's original comment because we're probably at 5:00 and here we're moving along so we'll look forward to your testimony at the public hearing. I have no problem deferring to the end of the meeting. Ms. Yukimura: Thank you very much. Is it okay with all Councilmembers? Mr. Rapozo: I misunderstood. I thought it was just absent off the original amendment but it is a typo and it's basically from the bill... so yeah it's a quick fix so. Chair Furfaro: So is there anyone that would like to offer additional testimony that may not be here ,when we defer this to the,end of the meeting? If not, I'm going to need a motion to move this to the end of the meeting and it's the whole item. Mr. Rapozo moved that Proposed Draft Bill No. 2395 as amended, be moved to the end of the agenda, seconded by Chang, and unanimously carried. COUNCIL MEETING January 12, 2011 52 Chair Furfaro: Where does that put us Mr. Clerk? Mr. Nakamura: We're on a Bill for Second Reading on page six (6) of the Council's agenda, this would be Bill No. 2385. BILLS FOR SECOND READING: Bill No. 2385 — A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B-2010-705, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII FOR THE FISCAL YEAR JULY 1, 2010 THROUGH JUNE 30, 2011, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($90,211- County Auditor) Chair Furfaro: Just for all intents and purposes again reaffirming that the $90,211 was for a period of seven (7) months, we're really looking at a number that's closer to five (5) months. May I have a... for the purpose of having discussion and getting public comment, may I have a motion to approve. Mr. Bynum moved to approve Bill No. 2385, seconded by Mr. Chang. Chair Furfaro: And I will first take comments from the public? Anyone wishing to speak on this? Mr. Mickens. There being no objectives, the rules were suspended. Mr. Mickens: Thank you again Jay. Since this is the second reading of this thing, I hope that we can pass this thing. I think it's been going on... you know Ernie's office was established eighteen (18), nineteen (19) months ago whatever it was, I believe... and I think the people that voted for this thing are waiting for the thing to pick up to do the job, and if Ernie does need this ninety thousand (90,000) for two (2) more people, I would say give it to him. That's in my opinion, I think he's a very rational person, you guys have known him for fourteen (14) years or whatever, and I just trust him and I just would like to see him go ahead and do his job. So I hope at this stage of the game you people in your wisdom go ahead and pass this. Thank you. Chair Furfaro: Thank you Mr. Mickens. Any more testimony? If not, I'll call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: I do want the staff to know that I will be giving them what was been submitted to me by the Auditor today. And because we do not have an adopted audit manual for the County of Kauai, I have asked, and he has complied, Mr. Pa.sion, a audit manual for the City and County of Honolulu and the audit manual for the County of Maui. I have received this today after making request for it, and I would like to have a opportunity to circulate this to all of you because it is my intention that we would adopt a manual. A standard operating procedure with parameters so that we all know what we can expect of the Audit Department. Subsequently we could adopt these guidelines as they mostly focus on COUNCIL MEETING January 12, 2011 53 the yellow book standards, but we cannot function in my opinion without having a standard operation procedure that has been aired and adopted by the Council, the body... not by the Chair, so I will be asking the staff to put this in a place where we may review material periodically and get a better understanding of the parameters set for the Audit Department, and it needs to be in a place where it's a reading file that we can all reach to visit some of the procedures with the City and County of Honolulu and some of the compliance procedures following the yellow book for the County of Maui. Adopt something that references this book but at the end of the day, we need to have a clear picture of what the Audit Department is interpreting as their scope of work. That's my comment at this time. Mr. Bynum. Mr. Bynum: I appreciate having access to those manuals and I think Mr. Pasion last time he was here said until we adopt a manual that he'll be using the City and County of Honolulu's audit manual as his guideline, so I applaud that and in terms of the bill that's before us, the office has been in existence for some time and I'm prepared to vote on this today and give the Auditor what he determines as adequate staff to meet the standards in the yellow book. Chair Furfaro: I just want to point out that you know giving the authority here and now without reviewing what's in there is somewhat you know our burden of responsibility because we're approving personnel but I appreciate your comments. Mr. Chang. Mr. Chang: I was just going to say would it benefit us if we got the manual for the Big Island and do they have a manual also? Chair Furfaro: I think in the discussion as Mr. Bynum has pointed out, the Honolulu and Maui book has been kind of used by the guideline and by previous testimony the Audit Department has implied to us that in the interim they're following the City and County of Honolulu. Yes? Ms. Yukimura: Mr. Chair, I think Mr. Pasion would like to say something... Chair Furfaro: I saw him stand up as well. Ms. Yukimura: If we could. Chair Furfaro: I just wanted to answer Mr. Chang's question which... Ms. Yukimura: Yeah, thank you. Chair Furfaro: Which was very specific and related to testimony that we had gotten previous, the testimony wasn't to go out and find Hilo's book and Molokai's book although people don't know Kalaupapa is a County in itself. ;So we will suspend the rules and have Mr. Pasion,come up. Ms. Yukimura: Thank you. I didn't mean to interrupt. Chair Furfaro: No. That's fine. There being no objections, the rules were suspended. COUNCIL MBETrNG January 12, 2011 54 Chair Furfaro: Ernie thank you for getting us these parameters in the interim. ERNIE PASION, COUNTY AUDITOR: Good morning everyone, good morning Councilmembers. Ernie Pasion, County Auditor for the record. The audit manual that I have provided to you Chair this morning per your request has also been adopted by the counties of Maui, as well as the Big Island. Of course each County has its own Charter and financial procedures, so what we're going to do is, by the way the audit manual is basically an off sheet of the yellow book. You take the yellow book and then you take it and then you put it into an more understandable language okay, and then of course you apply it to applicable Charter or laws of the County. So and that thing the audit manual that was shared to us by retired City Auditor o£.. City and County of Honolulu, Les Tanaka, he was the deputy of Marianne Higa. So when he applied for that City Auditor's position, he took that audit manual that Marianne Higa's office has and used. that as the basis for the City, and then of course since the City has different... you know so then it was based from but everything is based on the yellow book and then the State took it and then also the City took it and then we're going to do the same thing. But the three (3) counties including Maui doesn't have a City... County Auditor... we have short or lacking you know of an official, we have adopted it as a guideline, as a guide. We will be developing ours, so I just wanted to let that known to all of you. Chair Furfaro: Do you have an idea the time, the window... is it six (6) months, nine (9) months that you might have something that is presented to this Council that indicates what we would adopt as our manual? Mr. Pasion: I would say... more of a six (6) months or even earlier provided that we have the staff that we're asking for. We're asking for an audit analyst and that's one (1) of the projects that the audit analyst will be doing in addition to assisting the auditors, the two (2) auditors that we have in research and other stuff. And also I have in my work plan that we will be doing a centric, citizen centric report which is taking this 137 page comprehensive annual financial report of what we call CAFR into a more understandable report for the citizens. I have a sample here for the City of Bellevue Washington and I have one (1) for Portland, Oregon. What they've done is and this was initiated by the association of government accountants which we are a member of and what they've done is they have for the benefit of the tax payers and the citizens, this is too highly technical and what they've done is put it into a four (4) page report for the citizens and it shows you know all the vital statistics of the operations of the county and all its financials and on top of that we're proactive by the Citt's financial condition report of Maricopa County, very comprehensive. We would like to... you know it's not in my work plan, but we would like to pursue this one and get it done to. Chair Furfaro: Okay so it is first my understanding that we agree that the County of Kauai should have an audit business work plan that establishes standards and you can do that in about six (6) months provided you have the staff to work on that? Mr. Pasion: That's correct. COUNCIL MEETING January 12, 2011 55 Chair Furfaro: Secondly, it is your intentions for the Audit Department each year after the CAFR is completed that you would do about a four (4) to five (5) page summary... Mr. Pasion: Citizen... Chair Furfaro: On the most glowing items that we need to make improvements on or take corrective action on and that would also be done with this staffing? Mr. Pasion: That's correct. Chair Furfaro: That's kind of your goals in this particular time. Mr. Pasion: That's correct Chair. Chair Furfaro: Those two (2) things are extremely important for us to understand how we validate your request for more manpower. Mr. Pasion: Right and since... I was part of Council Services for twelve and a half (12 i/2) years and to me there's a need for financial analyst in... otherwise my office is open for all of you... so we can brief you on how to go over the CAFR. We've done it already with one of you and we are willing to... you know our office is always available to you to provide you assistance should you have... need the service and if you don't have it in your staff, in your Clerk's Office staff, we are here because we're still part of the legislative branch. But as far as our audits, we cannot provide you the specifics of our audits, you know I mean.., when the audit report is out, you will know all the... what we've doing on our audits. And as far as letting know the Council, we have started the first quarter update and of course we have three (3) new Councilmembers that were not part of that update so we are already scheduling for a second update for the second quarter and we will be doing this quarterly. So we'll let everyone know in the Council and we're even willing to come before the Council and so the public will know short of providing specifics of audits of course. The audit will be, when we issue our reports according to our audit plan, according to our manual, we will be issuing our audit reports to the Council and the Mayor and it will be available, we'll provide copies to the Libraries, and it will be available in our website. So if anybody interested from the public, the citizens, the taxpayers, they can see the results of our audits. Chair Furfaro: All of those things are very much appreciated in your commentary here. You know for myself, I appreciate your kokua on that, but at the same time you know I spent many years with you as a past Finance Chair going through these particulars, but you know we're at a place that everybody isn't man with the report, they're not familiar with the report. Mr. Pasion: That I understand and recognize. Chair Furfaro: I referred back to some local slang but everybody isn't man to how those particular pieces work. But the reality is it's kind of like the chicken and the egg thing here about getting us to that desired point but needing to have the staff to do it. I appreciate your commentary and let me see if COUNCIL MEETING January 12, 2011 56 there's any other questions from members for you. Questions for the County Auditor? Yes. Ms. Yukimura: I just wanted to say that these examples of auditor's reports to residents and to citizens are really exciting. I mean for a City of half a million people to make a report out that's four (4) pages long with interesting graphs and statistics, meaningful statistics is good although it has here very well articulated City goals and I don't know where you're going to get that from. Mr. Pasion: It's a challenge. Ms. Yukimura: Excuse me? Mr. Pasion: It's an opportunity for our County to... Ms. Yukimura: Yes, I suppose the lack of things to go and certain information maybe will spur us on to figure out how to do things better. So I'm very excited about your vision. I'm still concerned about the specifics of the positions and you know I think at this point I would and it's only me, I would prefer you starting with four (4) you know highly trained people in your office showing us what you're going to do in the next year... or showing us by performance in the next year and then coming back for more positions, that's where I am right now. Mr. Pasion: We are about to issue our initial audit reports and that was going to be part of our update to each one of you. Ms. Yukimura: So your first year's work in other words is that ready? Is that what you're saying? Mr. Pasion: Well when we presented our budget we said it will take six (6) to nine (9) months for us to do our audits. Ms. Yukimura: That was in June... I mean last March you mean, when you made your presentation for your 2010-2011. Mr. Pasion: Yes for this fiscal year's budget. Ms. Yukimura: Right. Mr. Pasion: And then of course we... our budget was... Ms. Yukimura: Cut. Mr. Pasion: Was cut you know... Ms. Yukimura: Yeah. Mr. Pasion: Not by our, you know, we didn't volunteer to cut our budget but somebody cut our budget with... I couldn't imagine you know the Lingle when she was the Governor to be cutting Marianne Higa's budget, but you know we're in a different situation here I guess. COUNCIL MEETING January 12, 2011 57 Ms. Yukimura: Well I mean are you saying it was cut below anything you could do I mean like so that it disabled you or are you figuring how to work within the means and you're before us because you're saying that this bill is important as a minimum sufficient amount in order for you to get the work done? Mr. Pasion: Well we were told... Ms. Yukimura: Be... Mr. Pasion: Let's go along with this and then come back in October. Ms. Yukimura: Okay. Mr. Pasion: That was the... you know that was... we were advised to do that. Ernie because of the furlough okay let's you know... do this and then you come back in October. Ms. Yukimura: Okay but still are you saying that without this thing that you need in October... you were told to come back in October, you can't do the basic work of the office? Mr. Pasion: Not... I'm already... we're doing our audits but we're behind already because you know we still have to do other things that we committed to do like example our audit manual is yet to be done, we still have to do our centric reporting and if I can still do more stuff if I have... Ms. Yukimura: Maybe the centric... the citizens centric reporting is for year two (2), I mean to take on... you have very ambitious goals and it's very inspiring that you do but everybody in the county has I think desires to do far more than they're able to do with the present budget and so then you have to prioritize and choose what you can do and show how well you can do it and then come back with proposals for how you can do the next year's work based on the wonderful product you produce right? Mr. Pasion: I could appreciate the fact that you were not a part of the Council when we presented our budget and then when we were asked by through the request of Councilmember Tim Bynum to provide us, to provide the Council and again in a more detailed explanation of our work plan, our audit plan which I already provided you and Councilmember Nakamura and because what we will be doing is we will be doing updates. Ms. Yukimura: Okay. Mr. Pasion: We are proactively trying to be open and transparent by saying here are the things that we are doing. Ms.:Yukimura: . I think you are being very open and transparent. Mr. Pasion: And you know we try to provide the transparency and the accountability of the county to its citizens also so... COUNCIL MEETING January 12,2011 58 Ms. Yukimura: Yes and that's all very good. So I have to admit some ignorance in terms of your total program but you are continuing to update me or educate me so the main issue before us with respect to the bill before us is how many people do you need right now and can you do my question I guess with four (4) because that was your original vision of four (4) and if so, I mean you said in the last session an analyst position rather than a technician clerk. Mr. Pasion: That's because when in fact the county was going to go into furlough so we said let's be sensitive about you know the county going into furlough because they are going to be short of money or... Ms. Yukimura: Okay so. Mr. Pasion: Or whatever... so we said okay let's do this now we're going through actually doing our work, we're finding out that basically we need this person here, this person there and this is the reason why it's presented to the Council and we were advised in October to come back in October and we're doing it. Ms. Yukimura: So your answer to my question is that you absolutely need five (5) people and you cannot do with four (4)? Mr. Pasion: That's what I'm saying. Ms. Yukimura: Okay. Chair Furfaro: Would you yield the floor to Mr. Rapozo? Ms. Yukimura: I'm done. Thank you. Mr. Rapozo: My question is a simple one, how long does it take to get these people on board? Should the bill pass, how long does it take to go out and announce and interview? Mr. Pasion: We had the position posted before but because of the cut that was done to us, we had to re... re-strategize our staffing and so when we posted the audit analyst, we already had applications, applicants sending us their interest to join us. Mr. Rapozo: And when was that? Mr. Pasion: Um? Mr. Rapozo: So you can use those or you got to repost? I know Civil Service got some strange laws. Mr. Pasion: It was posted already so I cannot repost. Mr. Rapozo: I'm sorry? Mr. Pasion: It was posted before... COUNCIL MEETING January 12, 2011 59 Mr. Rapozo: So you're not required... I don't know when it was posted that's why. Mr. Pasion: I believe it was February maybe... March... Mr. Rapozo: Of last year? Mr. Pasion: Of last year. Mr. Rapozo: And you can utilize that same list now or do you have to... because I'm assuming back when you posted there must have been a... Oh okay. I've been informed it's appointed positions so you don't have to follow the Civil Service. Mr. Pasion: Yeah it's a... I'm appointing my staff, you appointed me, there's no Civil Service in my office, in my department. Mr. Rapozo: Oh okay. So then basically once this passes, you can hire? Mr. Pasion: Yes. Mr. Rapozo: And I'm assuming by now if you posted the job in February of last year, you probably have those people ready to go. Mr. Pasion: Yes. If you know, they're still interested. Mr. Rapozo: Excuse me? Mr. Pasion: If they're still interested. Mr. Rapozo: Right. Okay and I guess one more question and I spoke with Councilmember Nakamura earlier and she had asked if I would be supportive of an extension until a briefing and out of courtesy I said I would and I think the soonest that we could get it is another two (2) weeks back to the full Council. Is that something that would be okay? Mr. Pasion: Well you know we've been delayed already and another two (2) week delay, you know to me it's affecting my operation. Whatever, like I said I recognize the fact that you and Council Vice Chair Yukimura and Councilmember Nakamura were not here when we did our presentation in October by the request of Councilmember Tim Bynum. We could do the same thing and we are going to be doing updates anyway so I think there's some concerns about, what are they going to be doing? Well I already have my quarterly update for the second quarter but we have requested the secretary to schedule us for appointments so that we can give you an update of what we're doing. Mr. Rapozo: I'm just asking if the two (2) weeks will be detrimental, I didn't ask Councilmember Nakamura what she was looking for I think it's reasonable much like the earlier discussion we had involving the condemnation proceedings, that if in fact they wanted to have more time to speak with you and your office that that would be granted and if... you know I'll definitely support that I just wanted to be sure and more so now because you're saying once COUNCIL MEETING January 12, 2011 60 this bill passes you can hire already, you don't have to go through the long interview and the Civil Service tends to be really. Mr. Pasion: The audit analyst position we had applicants but the clerical, we have to post. Mr. Rapozo: Oh clerical is Civil Service? Mr. Pasion: No but we can also make it available to people who is interested... Chair Furfaro: Excuse me, I just wanted to make things clear... you answered last week that all of your positions would be appointed. Mr. Pasion: That's correct. Chair Furfaro: And not Civil Service, so that's on the record, let's stay with that. Mr. Rapozo: Well that's all I have. My concern was really the length of time because I'm kind of familiar with the County and how long it takes to get somebody on board but if it's all appointed then it's relatively quick really it's just a matter of getting them, hopefully they're still interested. Mr. Pasion: Yeah for that audit analyst position, yes. Chair Furfaro: Is there any further discussion? Mr. Pasion I just wanted to reaffirm what I'm saying, I believe that there is an urgency to get your parameters set. I also believe that when you have a finding or something, it comes to the entire body and the fact of the matter is the Chair is saying to you, you have authority outlined in the Charter amendment and we are going to get to the parameters when we get to your operating business plan for the audit. I'm looking for the majority of the body here whether we defer, whether we put it to Committee, whether we approve it today, the piece that I talked about earlier with having the parameters to me is a real important part of our group understanding until we have these adopted documents for the Kauai County Audit Department, you're going to be following pretty much what City and County of Honolulu has prepared. Mr. Pasion: Right. Chair Furfaro: But I see you having the need for the staff to get us to that point. Mr. Pasion: That's correct. Chair Furfaro: And relatively soon, rather than pledging all these additional things we're going to do right now. We need to understand what your operating plan is, that's my question. Is there any further discussion? Yes. Okay... question from Councilmember Yukimura. Ms. Yukimura: On the audit manual, what is the procedure? Is it something the Council adopts or is it something that's an internal manual for COUNCIL MEETING January 12, 2011 61 your office that you just put together or do you have to put it through Chapter 91 Administrative Rules or what is it? Mr. Pasion: Well that's a very good question Vice Chair. I had to call the City and County of Honolulu City Auditor... if it was... because... when I got appointed I said I better go visit with Les Tanaka, and guess what it was already waiting for me even though, before I could ask the first question that I had on my list, if I could have their audit manual and they said here's the audit manual, you can start right away and so the Chair requested that I provide a audit manual to the Council and so I had to call and say am I breaking you office's confidentiality or whatever and I called and they said... as a matter of fact we gave it to you, we gave it to Maui, we gave it to the Big Island... and some of the offices in the City is requesting so I guess it's... could be a public document. Ms. Yukimura: And does it need approval before you start using it? Mr. Pasion: Well in my opinion no because... Ms. Yukimura: Right. Mr. Pasion: Because again like I said the audit manual is an off shout from the yellow book. The yellow book is, we have to follow the yellow book because it's in our Charter, it's government... auditing standards, so I guess if that's the choice of the Council since it's not proprietary we can say here it is and if you have any questions about audit though, hopefully don't ask another audit person to ask that question, ask us. Just like if you have a legal question, you don't come to me and say what do you think about this Ernie, about this legal stuff, you guys go to the County Attorney's Office. That's all in my request is that if you have any questions about audits, please come to see us and then we'll help you as much as we can. Don't ask anybody else and double guess or whatever, please don't do that. Ms. Yukimura: Thank you. Chair Furfaro: Ernie don't you think in business it's a good practice to brief this body to say this is your operating standards? Mr. Pasion: Like I said Chair, I agree with you, we're open. We can come and you can put it on the agenda, we can come and present it to you, no problem with us. Chair Furfaro: I... Mr. Pasion: The only thing we cannot do is to give you our investigations, our audits, you know before it become official. Chair Furfaro: That wasn't the question, let's focus on the . question... as the County Auditor do you not think it's a good or best practice to make sure that this body understands the parameters and what you intend to do? Mr. Pasion: Yeah. Like I said Chair we are willing to present to you what you guys want us to do, if you want us to present to you the COUNCIL MEETING January 12, 2011 62 yellow book with the audit manual, we're here and if you have any questions we will be willing to answer... Chair Furfaro: I would like to know that the questions I'm asking... Mr. Pasion: And I would say yes... Chair Furfaro: Your Department about your expanded role, your authority is set in an operating manual that I can refer to and say hey this is what we expect from that Department and even if it's copying the City and County of Honolulu, I think we need to have that and it needs to be an agenda item for us to say as I said today, I want the manual so that everybody has time to look at it and we understand what the operating standard is and what we can expect from the Audit Department like the many of the good things you said to us that you're going to do. Mr. Pasion: Right. Chair Furfaro: Like that four (4) page executive summary well that's great. But unless we actually acknowledge it, two (2) years from now we can stray away from it, the standards could lessen that's what I'm saying. I really appreciate you responding to my request to get this in front of the body. Mr. Pasion: So we are available. Chair Furfaro: Thank you. Any more question here because we're coming up on lunch time? No? Thank you sir. Mr. Pasion: You're welcome. Chair Furfaro: Is there anyone from the audience that would like to offer some testimony? If not, I'll call the meeting back to order. There being no one else to speak on this matter, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Members any discussion here? Councilmember Nakamura. Ms. Nakamura: I wanted to just thank Ernie for being here and clarifying some points for us. I think for myself being a new Councilmember, I feel like I need to get up to speed on the original budget of the Department, Supplemental request, the work plan and unfortunately I have not been able to schedule that briefing with the Auditors to date. So I'm sorry that I'm not personally up to speed and wanted some consideration to get up to speed to have the comfort level. I think we all want a high functioning audit Office of the Auditor that's effective, efficient that is helping us make this county better, better run so... that's what I'm asking for is just some time to get briefed, to get up to date, so that I feel comfortable making this decision. My thinking was to refer this to the Committee of the Whole. Chair Furfaro: Any discussion? Mr. Bynum. COUNCIL MEETING January 12, 2011 63 Mr. Bynum: Just to summarize what I heard in my understanding, we created the Office of the Auditor, the Auditor submitted a budget, the Mayor made cuts to that budget which was the initial budget and I heard Mr. Pasion said that he was uncomfortable with that but because of the concerns about furloughs and fiscal issues, he waited. Now he's coming with us to staff his office in a way he feels is adequate. We have Mr. Pasion as the Director, we have an Audit Manager Lani Nakazawa, we have a CPA Ron Rowles that are on board now, they additionally are asking for an analyst, someone that has the ability to research and write and provide support to the office and a clerical position and as Mr. Pasion said last time he was here, it may not be the most sufficient use of county funds to have high level people who are paid really well like accountants doing their own clerical work because generally our clerks are outstanding and they're better at doing that and so he's asking for that support. I'm more than prepared to give him that support. I think you can sense some frustration that fully staffing his office has been delayed. He also is required to give us a work plan which he did in writing sometime ago and I requested that they come, appear before Council in October so that they can have a discussion and we had that meeting and I was able to ask any questions I wanted, the public was able to hear it, that work plan is available. It has some things I'm really excited about and it has some areas that where maybe that wasn't my highest priority, but the Auditor is an independent office and he makes those choices and other people, the ones that I think aren't that important other people may think are very important. The four (4), five (5) page analysis of the budget and some of the comments that Mr. Pasion made today are really on point because when you know the public document our annual audit but more than anything you can quote numbers and come up with any kind of conclusion you want and so to have a very synopsis of that that's available to the public, is... will be a great service to the county. I also want to note that you know one of the things... we the Council with being the fiscal you know final word and I've been... had the opportunity to speak with Mr. Pasion when he was on staff here and he noted today that we don't have a financial analyst as part of our staff, someone who has specific expertise. Although we're task with being the review and final word and he offered to provide that service to the Council until such times that we have a financial analyst so I'm prepared to move on this. Having said all of that, I understand that people are asking for who are new to the Council that weren't here for those meetings that I said, and I want to honor that as well. I don't know if it's necessary to refer it to Committee you know I don't know why a two (2) week deferral wouldn't be sufficient but you know I don't want to not honor request from... but I was thinking it would be a straight deferral which would bring it back here in two (2) weeks and it would give people an opportunity to meet one on one with the Audit Office or have further discussion on the floor. Thank you very much for letting me make those comments. Chair Furfaro: So I'm understanding that you may support a deferral to give new members the opportunity to have one on one discussion? Mr. Bynum: Yeah I prefer that to referring it back to Committee which will delay it longer. Chair Furfaro: Okay. Mr. Chang. Mr. Chang: Yes. I would support a deferral also because it is very confusing. I had a brief conversation with Councilmember Nakamura, and COUNCIL MEETING January 12, 2011 64 you know I'd like to be able to see job descriptions of what has been of course done thus far with our three (3) staff that we have. However, I do support, I do plan to support our Auditor, you know we got a Honolulu manual, we got a Maui. manual, we got to figure out the manual. It's a newly position job, I mean Ernie Pasion and his staff is going to you know create the wheel, so six (6) years from now, ten (10) years from now whoever comes in with the audit, they got a lot easier job because they can just follow a blue print. They're trying to put together the blue print that we asked them to do you know a long time ago and being a member of the Council of you know the past term, we all unanimously supported him and I wanted to continue show our support for this very, very complex and complicated task that we're asking our brand new auditors. So with respect to us looking at manuals and questioning, I have to respect them for what they have done thus far because I don't think we can fully relate to the problems or the road blocks that they have had. However yes I would like to support for a very short two (2) weeks because, simply because of the fact that when he's ready to hire, then we can get that process right then and there but at least we can all be confident that we are supporting him for the right reasons. So I want to say in advance I do tend to support our County Clerk and his staff, however I really agree with the fact that we can catch up the spend but would like to say that in the next, you know we went down from nine (9) months to seven (7) months you know from what 90,000 to 66 or 65,000 or what have you, so I want to get this going as quick as possible and let them do what they were hired to do. Thank you very much. Chair Furfaro: Okay. Any more testimony here? So Councilmember Yukimura. Ms. Yukimura: I really appreciated the discussion today and also Mr. Pasion presentation. I am leaning now to supporting the whole package but I do think a little more time will make all of us feel comfortable. I like Councilmember Bynum's point that that the Auditor Office could actually be very helpful to the County Council in doing some of our work, specifically not just also to the whole county. And I want to see how that works in terms of the positions requested. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I just want to say that I think we need to give him the tools that he needs to do to audit before we start giving him financial analyst and giving him bigger jobs you know. I think the Charter is pretty specific as to what their function is and I think let's focus on the audits- As you all know I'm a very strong proponent of audits and it's nice to have an auditor in-house. The only reason I recommended a referral is because a referral will give us an opportunity, you know the discussions and the questions should be done in the Committee and not at final reading and that was the only purpose. Whether you refer it for a week, it stills ends up, providing that it passes of course, and I don't anticipate it not passing, but then it ends up in two (2) weeks as well, it will still show up in two (2) weeks. That was my only purpose for asking for a referral but either way will work. It's just that the discussions and the questions and the presentations if any should be done at the Committee and that was only my concern but if it's only going to be done outside the meeting and you're going to have your time to meet with the auditor staff and it won't be done here, then a deferral will be fine. COUNCIL MEETING January 12, 2011 65 Chair Furfaro: Okay I let everybody speak because a deferral is no additional dialog did you want to speak again Councilmember? Okay so to do a deferral we need a motion. Ms. Nakamura moved to defer Bill No. 2385, seconded by Mr. Chang, and carried by a 6-0-1 vote (Mr. Kawakami excused). Chair Furfaro: Please record the Chair's vote as a silent please. And that is the end of our discussion at this point, we have public hearings at or about 1:30, I think it probably be closer to 1:40 so we are at lunch_ There being no objections, the Council recessed at 12:40 p.m. The Council reconvened at 2:53 p.m., and proceeded as follows: Chair Furfaro: Can we go to the next item Mr. Clerk. Mr. Nakamura: Mr. Chair, we're back on page six (6) of the agenda on a bill for first reading, this is Proposed Draft Bill No. 2395. Proposed Draft Bill (No. 2395) - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 3, OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE SALARIES OF COUNTY OFFICERS AND EMPLOYEES Mr. Nakamura: There has been one (1) floor amendment adopted on this bill proposed by Councilmember Rapozo and we were in the process, the Council was in the process of deliberating on a second floor amendment proposed by Councilmember Yukimura. Ms. Yukimura: Sorry. Chair Furfaro: Councilmember, we're back to where we were and you have the floor on your proposed amendment. Ms. Yukimura: So the bill was moved to the end of the calendar... is there a motion? Mr. Nakamura: We have a motion and a second on yours Councilmember... Ms. Yukimura: Okay. Mr. Nakamura: If we can get a withdrawal on those. Ms. Yukimura: I can just refer it to the new one that comes out or should I withdraw my motion? Mr. Nakamura:. Withdraw the motion... Ms. Yukimura: Okay so I withdraw the motion and I think Councilmember... Chair Furfaro: You had a second from Mr. Chang I believe. i COUNCIL MEETING January 12, 2011 66 Mr. Nakamura: I believe, yes. Ms. Yukimura: So if he... would you? Mr. Chang: Yes thank you. I will withdraw my second. Mr. Nakamura: And now we're back to just the floor amendment that Councilmember Yukimura just recirculated. Ms. Yukimura: Okay so then if I may I'd like to amend as circulated with the corrected floor amendment. Chair Furfaro: I believe that was passed out, I seemed to have misplaced mine. Ms. Yukimura: Do we have extra copies? Chair Furfaro: I'm sorry, thank you. You have the floor to discuss your floor amendment as circulated. Ms. Yukimura: Alright, thank you. It basically incorporates the process that is defined in the salary resolution which was accepted by the Council and it gives some framework for how pay raises will be established mainly tying it to performance reviews. I think Councilmember Rapozo raised questions about the Director... which reads that the Director of Personnel will provide Salary Commission with the list of names, he expresses a legitimate concerns. I think it's just a disclosure as a way, a disclosure process as a way of encouraging compliance. Because you know it doesn't reveal any performance issues at all, it just certifies that the performance review has been done. It does reveal the pay raise but I believe that it is public interest information we don't keep pay as something that is not public information. And if we can adopt this it will be part of what goes to public hearing and we can hear what the public has to say about it and we can alter it as we get input and subsequent thoughts about... and possibly County Attorney input in terms of some of the issues that Mr. Stoessel raised. But one thing it does do is it fills a vacuum where there's no guidance for how pay raises are to be granted and this is not setting pay levels like for a position, it's about giving pay raises for particular people in positions when the appointing authority sets the pay as lower than the highest bracket, because the Salary Commission does set the range for a position, the appointing authority can choose to do one lower than the highest limit and then as it increases the pay, a decision is made based on individual performance. Chair Furfaro: Okay. So I would like to say for the purpose of getting this to the next level and public testimony I would approve it and support it. I do want to rephrase though the Salary Commission recommends the cap; the Department itself has the jurisdiction not to exceed the cap but certainly make a recommendation based on time, exposure and experience when they hire somebody in that department. Is there any further discussion here on the... this amendment as circulated? Hearing none. Do we have a motion and a second on this? Mr. Rapozo: Yes we do. COUNCIL MEETING January 12, 2011 67 Chair Furfaro: I'm going to ask if there's any public testimony, seeing no one, we will go ahead and take a vote on this amendment as circulated. Ms. Yukimura moved to amend Proposed Draft Bill No. 2395 as amended, as shown in the Floor Amendment attached hereto as Attachment 3, seconded by Mr. Chang, and unanimously carried. Chair Furfaro: So we have two (2) amendments, am I correct Mr. Clerk and now we can go back to the main motion? Mr. Nakamura: Yes, we're back to the bill as amended by Councilmember Rapozo's floor amendment and Councilmember Yukimura's floor amendment. Chair Furfaro: Do we have a motion and a second on the main bill and I will recognize Mr. Bynum. Mr. Bynum: I just and maybe I missed it but did the motion include setting a public hearing? Ms. Yukimura: What are you asking, I can't hear you? Mr. Bynum: Whether the motion included setting a public hearing date, I remembered I moved to approve but I don't remember us saying... Mr. Nakamura: Ah the public hearing... Mr. Rapozo: It was. Mr. Nakamura: February 9th would be... Mr. Rapozo: The original that was way back this morning sometime. Mr. Bynum: Yeah. Ms. Yukimura: What is the public hearing date? Mr. Rapozo: It is set for February 9th. Mr. Nakamura: And it was referred to the Committee of the Whole. Mr. Rapozo: And it will go to the Committee of the Whole. Mr. Bynum: Yeah okay thank you. Thanks for that clarification. Chair Furfaro: Seems like we can clarify that amongst ourselves without me referring to the County Clerk to repeat February 9, thank you gentlemen and that is with the public hearing on the 9th, this is simple voice vote. COUNCIL MEETING January 12, 2011 68 Mr. Rapozo: I just had one quick explanation and it's only in a earlier Salary Commission Resolution several years ago and I don't have it in front of me but there was the mandate to fix Section 3-2.1 in the code because really what you had, was you had the code which dictated the salaries of officers and employees but then you had a conflicting resolution coming out of the Salary Commission, so this just cleans it up, this is not anything new, this is not something that I thought of, this was something that was required of the Salary Commission a few sessions ago and we're just trying to clean it up and that's what it is. Thank you and I appreciate your support. Chair Furfaro: You spotting that is greatly appreciated. Councilwoman Yukimura. Ms. Yukimura: Oh that's what I was going to say. Chair Furfaro: Oh okay. So are we at a roll call vote here? Mr. Nakamura: Yes. Chair Furfaro: May I ask the Clerk to call for the roll call vote. The motion for passage on first reading was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 6, AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: Kawakami TOTAL — 1. Mr. Nakamura: Six (6) ayes Mr. Chair. There being no objections, the rules were suspended. Chair Furfaro: Thank you. I believe that brings us to Executive Session but I would also like to make note of ES 475 and that we would like to defer that as the Attorney that is assigned to this, Marc Guyot, is in fact out ill, so we'll have that deferred. EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92-4 and shall be limited to those items described in H.R.S. §92-5(a). (Confidential reports on file in the County Attorney's Office and/or the County Clerk's Office. Discussions held in Executive Session are closed to the public.) ES-475 Pursuant to Haw. Rev. Stat. sections 92-4, 92-5(a)(2), (4) and (8), and Kauai County Charter §3.07(E), the purposes of this executive session are to consider the evaluation of officers and/or employees where consideration of matters affecting privacy will be involved, salary consideration, and associated matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities COUNCIL MEETING January 12, 2011 69 and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Bynum: ES 475? Chair Furfaro: ES 475. Mr. Rapozo: Is deferred? Chair Furfaro: Yes. Can I get a motion? Mr. Chang moved to defer ES 475, seconded by Ms. Yukimura, and unanimously carried. Chair Furfaro: On that note, I'll call up the County Attorney and then we'll take a tape change for the caption department. There being no objections, the rules were suspended. AMY ESAKI, FIRST DEPUTY COUNTY ATTORNEY: We would like to request that we go into Executive Session for ES 476. ES-476 Pursuant to Haw. Rev. §tat, sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and update regarding Notice of Claim Against the County of Kauai filed by Shane N. Matias on June 2, 2010, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. The meeting was called back to order, and proceeded as follows: Ms. Yukimura moved to convene in Executive Session at 3:03 p.m., as recommended by the County Attorney, seconded by Mr. Chang, and unanimously carried. There being no objections, the meeting was in recess at 3:03 p.m. ADJOURNMENT. The meeting was called back to order at 4:10 p.m., and there being no further business, the meeting was adjourned. ectfully submitted, PETER A. NAKAMUR ' County:Clerk /ds I i (January 11, 2011) FLOOR AMENDMENT Bill No. 2395, Relating to the Salaries of County Officers and Employees INTRODUCED BY: Mel Rapozo Amend Bill No. 2395, by amending Section 2 to read as follows: "SECTION 2: Chapter 3, Article 2 of the Kauai County Code, 1987, as amended, is hereby amended to read as follows: ARTICLE 2. SALARIES OF CERTAIN OFFICERS Sec. 3-2.1 Salaries of Certain Officers. The annual salaries, payable semi-monthly, of the following county officers and employees shall be as established in the resolution adopted by the Salary Commission and currently in effect, provided, however, that the respective appointing authority may set the salary and increases in the salary of an appointee at any figure below the figure established by the Salary Commission: Mayor Administrative Assistant County Engineer Deputy County Engineer Director of Finance Deputy Director of Finance County Attorney First Deputy County Attorney Deputy County Attorney Prosecuting Attorney First Deputy Prosecuting Attorney Deputy Prosecuting Attorney Chief of Police Deputy Chief of Police Planning Director Deputy Planning Director Director of Personnel Manager and Chief Engineer, Department of Water Deputy Manager-Engineer, Department of Water Fire Chief Deputy Fire Chief Director of Parks Deputy Director of Parks Director of Housing County Clerk Deputy County Clerk County Auditor Director of Economic Development Director of Liquor Control 1 Affachm&0 Boards and Commissions Administrator (Material to be deleted is bracketed. New material is underscored.) Z Aflachmcnf l I� (January 11, 2011) FLOOR AMENDMENT Bill No. 2395, Relating to the Salaries of County Officers and Employees INTRODUCED BY: JoAnn Yukimura Amend Bill No. 2395, by amending Section 2 to read as follows: "SECTION 2: Chapter 3, Article 2 of the Kauai County Code, 1987, as amended, is hereby amended to read as follows: ARTICLE 2. SALARIES OF CERTAIN OFFICERS Sec. 3-2.1 Salaries of Certain Officers. La� The annual salaries, payable semi-monthly, of the following county officers and employees shall be as established in the resolution adopted by the Salary Commission and currently in effect, provided, however, that the respective appointing authority may set the salary and increases in the salary of an appointee at any figure below the figure established by the Salary Commission: Mayor Administrative Assistant County Engineer Deputy County Engineer Director of Finance Deputy Director of Finance County Attorney First Deputy County Attorney Deputy County Attorney Prosecuting Attorney First Deputy Prosecuting Attorney Deputy Prosecuting Attorney Chief of Police Deputy Chief of Police Planning Director Deputy Planning Director Director of Personnel Manager and Chief Engineer, Department of Water Deputy Manager-Engineer, Department of Water Fire Chief Deputy Fire Chief Director of Parks Deputy Director of Parks Director of Housing County Clerk Deputy County Clerk County Auditor Director of Economic Development Director of Liquor Control 1 Attach men t 2 (b) Requirements for salary increase. The salary increase for any non- elected officer or employee occupying and continuing in a position listed in subsection (a) shall be contingent upon the Director of Personnel's receipt of the following: (1) A memo from the officer's or employee's appointing authority at least thirty (30) days prior to the increase certifying that the appointee's performance has been evaluated pursuant to the procedures established by the Director of Personnel: and (2) A copy of the officer's or employee's completed performance evaluation evidencing that the appointee has met or exceeded job requirements (for example, has achieved a rating of three points or higher on a five point scale) for the appraisal period. Based on the evaluation results, the appointing authority's recommendation on whether a proposed increase should be granted. The appointing authority may recommend an increase for an officer or employee occupying a position at a figure below the proposed salary increase provided for in the salary resolution. Provided, however, the county attorney's performance shall be conducted through an equally weighted evaluation that shall be jointly administered by the mayor and the council chairperson in accordance with paragraphs (1), (2) and (3) above. The Director of Personnel shall provide the Salary Commission with a list of the names and positions of all non-elected officers and employees covered under subsection(a), indicate whether or not they have satisfactorily met the performance evaluation criteria, and include the recommended salary increase, if any. (e) Performance evaluations. The Director of Personnel shall prepare, for approval by the Mayor, written performance evaluation procedures and methodologies and coordinate the performance evaluation process for all non-elected officers and employees listed in subsection (a). The Director of Personnel shall provide a copy of the performance evaluation procedures and methodologies, including any revisions thereto, to the Salary Commission. (Material to be deleted is bracketed. New material is underscored.) 2 A-Vtoc h rmc.rl i- z (January 11, 2011) FLOOR AMENDMENT Bill No. 2395, Relating to the Salaries of County Officers and Employees Introduced By: JoAnn Yukimura Amend Bill No. 2395, by amending Section 2 to read as follows: "SECTION 2. Chapter 3, Article 2 of the Kauai County Code, 1987, as amended, is hereby amended to read as follows: ARTICLE 2. SALARIES OF CERTAIN OFFICERS Sec. 3-2.1 Salaries of Certain Officers. (a) The annual salaries, payable semi-monthly, of the following county officers and employees shall be as established in the resolution adopted by the Salary Commission and currently in effect, provided, however, that the respective appointing authority may set the salary and increases in the salary of an appointee at any figure below the figure established by the Salary Commission: Mayor Managing Director County Engineer Deputy County Engineer Director of Finance Deputy Director of Finance County Attorney First Deputy County Attorney Deputy County Attorney Prosecuting Attorney First Deputy Prosecuting Attorney Deputy Prosecuting Attorney Chief of Police Deputy Chief of Police Planning Director Deputy Planning Director Director of Personnel Manager and Chief Engineer, Department of Water Deputy Manager-Engineer, Department of Water Fire Chief Deputy Fire Chief Director of Parks Deputy Director of Parks Director of Housing County Clerk Deputy County Clerk County Auditor Director of Economic Development 1 Vfachmen+� Director of Liquor Control Boards and Commissions Administrator (b) Requirements for salary increase. The salary increase for any non- elected officer or employee occupying and continuing in a position listed in subsection (a) shall be contingent upon the Director of Personnel's receipt of the following: (1) A memo from the officer's or employee's appointing authority at least thirty (30) days prior to the increase certifying that the appointee's performance has been evaluated pursuant to the procedures established by the Director of Personnel; and (2) A copy of the officer's or employee's completed performance evaluation evidencing that the appointee has met or exceeded iob requirements (for example, has achieved a rating of three points or higher on a five point scale) for the appraisal period. (3) Based on the evaluation results, the appointing authority's recommendation on whether a proposed increase should be granted. The appointing authority may recommend an increase for an officer or employee occupying a position at a figure below the proposed salary increase provided for in the salary resolution. Provided, however, the county attorney's performance shall be conducted through an equally weighted evaluation that shall be jointly administered by the mayor and the council chairperson in accordance with paragraphs (). (2) and (3) above. The Director of Personnel shall provide the Salary Commission with a list of the names and positions of all non-elected officers and employees covered under subsection(a), indicate whether or not they have satisfactorily met the performance evaluation criteria, and include the recommended salary increase, if any. (e) Performance evaluations. The Director of Personnel shall prepare, for approval by the Mayor, written performance evaluation procedures and methodologies and coordinate the performance evaluation process for all non-elected officers and employees listed in subsection (a). The Director of Personnel shall provide a copy of the performance evaluation procedures and methodologies, including any revisions thereto, to the Salary Commission." (Material to be deleted is bracketed. New material is underscored. (V:\CSOFFICE FILES\AMENDMENTS\BILL NO.2395 FA 1-11-2011 JoAnn—salaries of county officers&employees.doc) 2 A+,tvChmr, -; i