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HomeMy WebLinkAbout02-09-2011 PH re bill no 2395 PUBLIC HEARING FEBRUARY 9, 2011 A public hearing of the Council of the County of Kauai was called to order by Jay Furfaro, Chair, Committee of the Whole, on Wednesday, February 9, 2011, at 1:39 p.m. at the Council Chambers, 3371-A Wilcox Road, Iihu`e, Kauai, and the presence of the following was noted: Honorable Tim Bynum Honorable Dickie Chang Honorable Derek S. K. Kawakami Honorable Nadine K. Nakamura Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro, Council Chair The Clerk read the notice of the public hearing on the following: 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, which was passed on first reading and ordered to print by the Council of the County of Kauai on January 12, 2011, and published in The Garden Island newspaper on January 27, 2011. The following communications were received for the record: L Horace/Phyllis Stoessel email, dated January 28, 2011 2. Horace/Phyllis Stoessel email, dated February 7, 2011 The hearing proceeded as follows: HORACE STOESSEL: Thank you Mr. Chairman. My name is Horace Stoessel. For the information of those watching these proceedings on television, in the critique of Bill 2395 I submitted 12 days ago, I suggested three changes in the bill: 1) to require that a public hearing be held in connection with each salary resolution, 2) to prohibit establishing a multi-year raises in a single salary resolution, and 3) to remove section 3-2.1(b) from the bill in recognition of the fact that it is not possible to legislate a workable and legally defensible system of uniform performance evaluations for the executive salary process. 1 I welcome any questions councilmembers have about my critique of the bill, but I first want to point out that the bill as amended by section b raises two questions specifically for the council. The first, given the wealth of knowledge and experience that councilmembers bring to the table, do you need someone else to tell you what procedure you must follow in evaluating the performance of the county clerk or what conditions you must satisfy before you can set the clerk's salary within the limits set by the salary commission. And second, is it wise for the council to surrender a part of its autonomy by submitting to a process of performance evaluation controlled by the mayor. Do you have any questions? Council Chair Furfaro: Members? Mr. Bynum. Mr. Bynum: Thank you Mr. Stoessel. Did I say your last name correctly? Mr. Stoessel: Yes. Mr. Bynum: Because I listened to you and I realized I've been pronouncing it incorrectly for a number of years... Mr. Stoessel: Well, I gave up a long time ago. I'm not related to John Stoessel, but that's the name that's out in the public. But you're right. Mr. Bynum: Hopefully I'll get it right from now on. I always appreciate your testimony because it's very thoughtful, meticulous, and it challenges the way I think about things, which is a good thing. And so I do have one question about your testimony. You know, the salary commission, I think, did work towards what is a widespread sentiment, I believe, that individuals who make six figures should be routinely evaluated, and they shouldn't just get a walk on that, you know, just because they're the department heads. And so, you know, if I understand your... Your position has been that they don't really have that authority under the Charter. And so I think the amendment or the bill, we were going to put that in so we had that authority, because there's still an outstanding question of what the authority of the salary commission was. I know I was coming from the assumption that it's established by Charter. If they adopt a resolution, it has the weight of the Charter; it's the expectation. And if that's not the case, the council has the ability to make things legal...or have an expectation. So I thought that's what we were trying to do—is honor the salary commission's intent and make sure that it was a legal requirement. And so is your testimony that we shouldn't have that requirement anywhere, either from the council or in the Charter that every department should decide for themselves, the mayor should decide for themselves, whether their department heads get evaluated on a routine basis? Mr. Stoessel: Well, what I said is that I do not believe it's possible to legislate a workable and legal and defensible system of uniform 2 performance evaluation. I totally agree with the idea that people who appoint should hire people who are qualified, should supervise them and see that they do their jobs, and that they earn their pay. I think that assumption is implicit in the whole Charter, but the issue here as I see it is the one I just mentioned. I don't see how you can legislate such a system, and I offered six reasons in my critique for thinking that way. Mr. Bynum: Well thank you for answering the question, and thank you for your testimony. Mr. Stoessel: You're welcome. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Real quick question. Mr. Stoessel, you're going to be here next week at the committee meeting, right? Mr. Stoessel: Sorry? Mr. Rapozo: You're going to be at the committee meeting next week? Mr. Stoessel: Is that an invitation? Mr. Rapozo: Yes. Mr. Stoessel: Okay, I'll be there. Council Chair Furfaro: Councilwoman Yukimura. Ms. Yukimura: Yes, good afternoon. For your question number two at the bottom of your testimony, where you say, is it wise for the council to surrender a part of its autonomy by submitting a process of performance evaluation control by the mayor. I would argue that the council is not totally autonomous, that it actually is part of a county, and that it's part of a checks and balance system, so that rather...and so (I'm guessing and I'm asking) could not one see it not as a surrender but as part of the checks and balances of the administration on the council, just as the council checks the administration in many ways—can override a veto, has to approve collective bargaining—and makes for a more... And also on top of that, it makes for a more uniform personnel policy within the county, which is especially important with respect to salaries. Mr. Stoessel: Are you asking me a question? Ms. Yukimura: Yes. 3 Mr. Stoessel: What's the question? Ms. Yukimura: The question is, could one not rather than construe it as a surrender, construe it as an important check and balance that the council would have to follow certain uniform policies that apply across the county, especially with respect to department head salaries. Mr. Stoessel: I don't see how that would take away the issue of separation of powers and the council's autonomy with respect to this particular issue. And I suppose that's one of the questions the council will decide in terms of what you eventually do with this amendment. I could make a speech in support of that, but I'm not going to. Ms. Yukimura: Okay, thank you very much. Council Chair Furfaro: Any more questions of Mr. Stoessel's testimony? I guess we'll see you back at the committee meeting? Mr. Stoessel: Yes. Council Chair Furfaro: Okay, very good. Thanks for your testimony today. Mr. Mickens? Is there anyone that would like to testify at this public hearing on this item? If not, I'm going to close this public hearing. Thank you. There being no further testimony on this matter, the public hearing adjourned at 1:50 p.m. Respectfully submitted, PETER A. NA URA County Clerk /ao 4 F F_1VED TESTIMONY ON BILL 2395 SUBMITTED AT THE 2911 PU LIC HEARING From: Horace/PhyllisStoessel Sent: Monday, February 07, 2011 10:17 AM P 4 13 To: Council Testimony Subject: TESTIMONY ON BILL 2395 SUBMITTED AT THE 2/9/]dFVMPlJC HEARING THE COUNTY TESTIMONY ON BILL 2395 SUBMITTED AT THE 2/9/11 PUBLIC HEARING BY HORACE STOESSEL For the information of those watching these proceedings on television, in the critique of bill 2395 1 submitted twelve days ago I suggested three changes in the bill: 1. To require that a public hearing be held in connection with each salary resolution; 2. To prohibit establishing multi-year raises in a single salary resolution; 3. To remove Section 3-2.1(b) from the bill in recognition of the fact that it is not possible to legislate a workable and legally defensible system of uniform performance evaluations for the executive salary process. I welcome any questions councilmembers have about my critique of the bill, but I first want to point out that the bill as amended by Section (b) raises two questions specifically for the council. 1. Given the wealth of knowledge and experience that councilmembers bring to the table, do you need someone else to tell you what procedures you must follow in evaluating the performance of the county clerk or what conditions you must satisfy before you can set the clerk's salary within the limits set by the Salary Commission? 2. Is it wise for the Council to surrender a part of its autonomy by submitting to a process of performance evaluation controlled by the Mayor? Page 1 Aida Ok=ki From: Horace/PhylIis5toessel Sent: Friday, January 28, 20119:53 AM •'f JAN 28 P12 :21 To: Council Testimony Subject: CRITIQUE OF BILL 2395 Ot�FIC.E ,, C utiTYfF�`Oi4.AUA i CRITIQUE OF BILL #2395 SUBMITTED TO THE 2/9111 PUBLIC HEARING BY HORACE STOESSEL Suggestions for clarifying and strengthening bill #2395: 1. Add a provision requiring the Salary Commission and/or the Council to hold a public hearing in connection with each Salary Resolution. The original draft of the 2006 charter amendment was authored by the 2004 Salary Commission and required the Salary Commission to hold such public hearings, but the Charter Commission removed the provision. If memory serves, no public hearing has been held in connection with salary resolutions since the new Salary Commission convened in February 2007. One can only wonder if public hearings would have made any difference when, for example, the commission established and Council approved in 2007 across-the-board cumulative 50% raises spread over two and a half years or when salary resolutions confused the salary-setting process by incorporating non-salary provisions and the Council routinely "received" the resolutions. 2. Add a provision prohibiting the establishment of multi-phase, multi-year salary schedules. Charter Section 29.03 presupposes that salary changes/resolutions will align with the annual budget process any time changes in the salary schedule occur. This provision would not prevent the commission from anticipating a need for multiple salary changes, but it would require that actual changes be implemented on a year-to-year basis. Anyone who doubts the wisdom of this requirement should review the history of multiple raises. For example, the 1994 commission proposed four increases extending over two and a half years. The Council approved three of the increases and subsequently canceled two of the remaining three raises, opening the way throughout the 1990's for confusion and conflict involving the Council, the public, the Salary Commission and the administration and leading to a suggestion by one chairman that the Salary Commission be abolished. 3. Remove Section 3-2.1(b), the amendment introduced by Councilmember Yukimura that reproduces language from Salary Commission Resolutions. The amendment describes "Requirements for salary increase" and mandates conditions appointing authorities must satisfy before they can raise the salaries of appointees. There are several reasons for removing the amendment. 1 A. The stated purpose of bill 2395 is "to conform Chapter 3 of the Kaua'i County Code 1987, as amended, with Section 29.03 of the Kaua'i County Charter." Section 3-2.1(b) does not accord with the stated purpose of the bill or the contents of Section 29.03. Rather, it inserts a second purpose into the bill a thus conflicts with Charter Section 4.02C, which states that "No bill shall be so amended N nal purpose." There are only two ways to cure the conflict. One is to remove Section (b). The other is to abandon bill 2395 and start over with a bill that meets the requirements of Charter Sections 4.02B and 4.02C. B. The amendment negates or usurps the authority granted to appointers, including department heads, by Charter Section 29.03 to set the salaries of appointees by reducing it to a conditional authority—a result that would be analogous to the Council claiming that it can modify the salary figures established by the Salary Commission or the commission claiming (as it has done in Resolution 2010-1) that it can authorize the Mayor and Council to reduce executive salaries by means of the annual budget process. The commission has a right to take steps it deems necessary in deciding what salary ceilings to set for non-elected positions, but neither the commission nor the Council is authorized by Charter Section 29.03 to prescribe conditions that appointers must satisfy before making their own salary decisions. C. There is no statutory basis for enlisting the Director of Personnel in the executive salary process, and the Council cannot legislate such a basis without coming into conflict with state law and Charter Article 15. The Department of Personnel Services exists to administer the civil service system. It is not designed, equipped, or authorized to serve the executive salary process. However, since February 2007 the department has played a major role in the executive salary process and since April 2007 the director has been designated by the Salary Commission as the "middle man" between appointers and the Salary Commission. Implicit in the department's participation in the executive salary process is an assumption that the civil service system and the executive salary process are congruent, but in fact it is a case of apples versus oranges. The salary details and other details in civil service are negotiated between unions and state jurisdictions, length of service is a major factor especially in the highest civil service salaries, and the performance evaluations and enforcement mechanisms operative in the system correlate with that system, not with the executive salary process or with the authority granted to the principals who administer the executive salary process. D. The language of Section (b)(3) in the amendment makes no sense in light of Charter Section 29.03. According to 29.03, the Salary Commission sets salary ceilings for non-elected officials and appointing authorities set the actual salaries of appointees up to the pre-set ceilings. Over against this straightforward process, Section (b)(3) refers to an increase "proposed" by the commission, but the commission's role is to set ceilings, not propose increases. Similarly, the section calls for the appointing authority to recommend whether a proposed increase should be granted. To whom and at what point in the process does the appointing authority make such a recommendation and who grants the increase if not the appointing 2 authority? Altogether, the section reflects a lack of understanding of the executive salary process envisioned in Charter Section 29.03. E. Section (e)(sic) instructs the Director of Personnel to prepaf,for approval by the Mayor "written performance evaluation procedures and methodologies" and to "coordinate the performance evaluation process for all non-elected officers..." This provision violates the doctrine of separation of powers by requiring elected officials (Council and Prosecuting Attorney) to submit to a process controlled by the Mayor. Authorizing the Mayor to approve and thus control a process of performance evaluation for anyone other than persons appointed by the Mayor does not accord with Section 29.03. It should be noted that the initial version of criteria for performance evaluations contained in the April 2007 salary resolution seemed to affirm this point at least partially. It provided for the Personnel Director to coordinate performance evaluations only for mayoral appointees. F. Councilmember Yukimura offered in support of the amendment the rationale that it would be a way to honor the work of the Salary Commission. I do not question the sentiment. 1 do question its basis. The original content of the section dealing with performance evaluations was contained in the April 2007 salary resolution. Salary Commission minutes indicate that the resolution was written by the mayor's executive assistant with help from a member of the Personnel Department, both of whom were identified by the commission as "staff members" and who were instrumental in providing information and guidance to the commission and in writing both the resolution and the commission's preliminary report in March 2007. Specifically, the minutes do not indicate that the commission deliberated at any length concerning the specifics of performance evaluations or dealt with issues like those I have raised in this testimony. To summarize: 1 believe that it is not necessary or possible to legislate a uniform system of performance evaluation for the executive salary process, and that to continue such an attempt will perpetuate the confusion, conflict, and unnecessary effort that has been most apparent since the Mayor asked the Salary Commission in the spring of 2009 to defer for two years the last of the salary increases it had established in 2007. 1 believe there is a consensus in all quarters that appointers are responsible for hiring qualified personnel and for seeing to it that their appointees do their jobs and earn their salaries. I believe there are ways the Salary Commission and the Council can strengthen this consensus, but 1 don't believe that retaining Section 3-2.1(b) is one of those ways. 3 1 I i