Loading...
HomeMy WebLinkAbout2/15/2012 Regular Council MtgCOUNCIL MEETING FEBRUARY 15, 2012 The Council Meeting of the Council of the County of Kaua`i was called to order by the Council Chair at the Council Chambers, 4396 Rice Street, Room 201, Lihu`e, Kaua`i, on Wednesday, February 15, 2012 at 9:26 a.m., after which the following members answered the call of the roll: Honorable Honorable Honorable Honorable Honorable Honorable Honorable APPROVAL OF AGENDA. Tim Bynum Dickie Chang KipuKai Kuali`i Nadine K. Nakamura Mel Rapozo JoAnn A. Yukimura Jay Furfaro Mr. Kuali`i moved for approval of the agenda as circulated, seconded by Ms. Yukimura, and unanimously carried. MINUTES of the following meetings of the Council: Special Council Meeting of Janauary 10, 2012 Council Meeting of January 11, 2012 Special Council Meeting of January 19, 2012: appointing the County Clerk Special Council Meeting of January 19, 2012: Interview Special Council Meeting of January 19, 2012 Public Hearing of January 25, 2012 re: Bill No. 2423 Mr. Rapozo moved to approve the Minutes as circulated, seconded by Mr. Kuali`i, and unanimously carried. Chair Furfaro: On the consent calendar we have several items that our new rules will allow people from the public to speak up to three (3) minutes on any item for the purpose of stating their comments, without any counter questions from the Council. Is there anyone in the audience that wants to speak on the any of the consent calendar agenda? Ms. Yukimura: Mr. Chair just a clarification that it's on any subject on the agenda right? Chair Furfaro: Well if you look at your agenda, we can have that discussion later it could be anything on the agenda at the discretion of the Chair. If the topic falls particularly on the consent calendar, that's what I'm asking for now. items? Ms. Yukimura: Okay. Mr. Rapozo: Mr. Chair, I had a question on one (1) of the Chair Furfaro: Go ahead. 2 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: And it was the Buildings... Monthly Report. Chair Furfaro: Number please. Mr. Rapozo: The second one... thirty -two (32). Chair Furfaro: Yes. Mr. Rapozo: We had discussion prior that we were going to have a report from the Buildings Division on the recap of the buildings permits and so forth and I was just wondering why this is on the consent if in fact... Chair Furfaro: We can move it as such... Mr. Rapozo: But I'm not sure if Buildings was informed or notified to be prepared to do a presentation. Chair Furfaro: Well I asked through the Administration that any department be available on Wednesdays for a call across the street. Mr. Rapozo: I'll leave it to your discretion, Mr. Chair. We can repost because of our agenda and to give them time to prepare, but I know that I had requested that in the past that we had questions on the permits, anticipated revenue, and so forth and we agreed that we would have that... they could provide us an end of a year report for 2011. This report is specifically, on the agenda it's especially for the month of December, so maybe it's better we just post a new item to discuss the annual summary of 2011 at a future... Chair Furfaro: So noted. To the Clerk's Office, as this consent calendar is only for the month of December, please note to post a new item for the current period for all months. Did you get that request? Thank you very much. Mr. Rapozo: Thank you Mr. Chair. Chair Furfaro: Is there anyone in the audience that would like to speak on the consent calendar items? Is there anyone in the audience that wants to speak now on any other items? If not, can I get a motion here? CONSENT CALENDAR: C 2012 -31 Communication (12/29/2011) from the County Engineer, transmitting for Council consideration, a traffic resolution establishing a school bus stop at 2489 Apapane Street, Ulu Ko Subdivision, Lihu`e District as requested by Ms. Julie Ann Kanaele: Mr. Rapozo moved to receive C 2012 -31 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -32 Communication (1/05/2012) from the Chief, Building Division, transmitting for Council information, the Monthly Report on Building Permit Information for the Month of December 2011, which includes the following: 1) Building Permit Processing Report 2) Building Permit Estimated Value Summary 3 COUNCIL MEETING FEBRUARY 15, 2012 3) Building Permits Tracking Report 4) Building Permits Status Mr. Rapozo moved to receive C 2012 -32 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -33 Communication (1/17/2012) from the Director of Finance, transmitting for Council information, the Periods 1 -5 Financial Reports — Statement of Revenues as of November 30, 2011, for Fiscal Year 2012, pursuant to Section 21 of the Operating Budget Ordinance (B- 2011 -732), County of Kaua`i. Statement of Revenues (Estimated and Actual), Revenue Report, Statement of Expenditures and Encumbrances, and Detailed Budget Report: Mr. Rapozo moved to receive C 2012 -33 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -34 Communication (1/19/2012) from the County Engineer, transmitting for Council consideration a traffic resolution, which establishes a no parking zone along portions of Koloa Road in the vicinity of the Koloa Post Office, to provide sight distance for the patrons visiting the Koloa Post Office while entering Koloa Road: Mr. Rapozo moved to receive C 2012 -34 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -35 Communication (1/27/2012) from the Planning Director, transmitting for Council consideration, the Planning Commission's recommendation regarding Proposed Draft Bill (No. 2422), which amends Section 8 -1.5 of the Kaua`i County Code 1987, as amended, relating to the definition of "Land Coverage" and "Public Shared Use Path. ": Mr. Rapozo moved to receive C 2012 -35 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -36 Communication (1/31/2012) from the Director of Finance, transmitting the Statement of the Condition of the Treasury as of November 8, 2011: Mr. Rapozo moved to receive C 2012 -36 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -37 Communication (2/02/2012) from the Director of Finance, transmitting for Council consideration, amendments to Chapter 26, Kaua`i County Code 1987, as amended, relating to special taxes levied on properties in community facilities districts established pursuant to such Chapter: Mr. Rapozo moved to receive C 2012 -37 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -38 Communication (2/02/2012) from the Director of Finance, transmitting for Council consideration, amendments to Chapter 5A, Kaua`i County Code 1987, as amended, to include a new section addressing tax foreclosure sales of properties in community facilities districts that are subject to both real property taxes under Chapter 5A and special taxes under Chapter 26 of the County Code: Mr. Rapozo moved to receive C 2012 -38 for the record, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -39 Communication (2/07/2012) from the Council Chair, transmitting for Council consideration, a proposed Resolution Proposing a Charter Amendment relating to definitions of "shall," "must," and "may ": Mr. Rapozo moved to receive C 2012 -39 for the record, seconded by Mr. Kuali`i, and unanimously carried. 4 COUNCIL MEETING FEBRUARY 15, 2012 C 2012 -40 Communication (2/7/2012) from Councilmember Rapozo, transmitting for Council consideration, a proposed Resolution Proposing a Charter Amendment relating to the establishment of an Office of the Council Attorney: Mr. Rapozo moved to receive C 2012 -40 for the record, seconded by Mr. Kuali`i, and unanimously carried. Chair Furfaro: We have for our first item today the Legislative report, followed by the building and demolition permits on the two (2) mills sites. Can we read those in that order? COMMUNICATIONS: C 2012 -41 Communication (1/31/2012) from the Council Chair, requesting the presence of Mr. Scott Matsuura and Mr. James Pacopac to provide an update on the 2012 Legislative Session on bills that impact and are of importance to the County of Kaua`i. Chair Furfaro: I would like to suspend the rules and thank you, Mr. Pacopac, for being here. I would like to say that we have now a half an hour to give a review, you have a presentation for us, and I would also like to say that at 10:00 sharp we need to go to the item dealing with the two (2) mill sites since we're going to have the Kekaha students here for a period of time. As I understand the legislative contract that we have, we are entitled to four (4) visits from your office a year. One (1) visit is completely dedicated to the Water Department, one (1) to the Mayor's Office and two (2) of those as a breifing to the Council and the Administration. We'll consider this our first update. There being no objections, the rules were suspended. JAMES PACOPAC: Aloha Chair and members. James Pacopac and Scott Matsuura. I think they passed out a list for you folks. Chair Furfaro: Yes, we have it Jim. Mr. Pacopac: So if you want to, we're going to go through the list and give you the update on these bills and then we can go into other things afterwards. Scott will go through the bills and if you have a question on the bill, just ask, no problem. Chair Furfaro: Scott, the floor is yours, if you could reintroduce yourself, it would be appreciated. SCOTT MATSUURA: I'm Scott Matsuura, one of the lobbyists with SPF Consulting. The three (3) different categories that we were asked to track were those bills relating to the HSAC package, the Kaua`i Legislative package, and there was one (1) bill that I think part of what I guess Councilmembers had introduced or was being proposed up at the legislature. What we did was, and let me just go down the line, I know you have a status sheet with you, we can just go through it. We'll pick it up in pairs since both the House and the Senate bills are companion bills. So we'll start with the first one which is Senate bill 2046 /House bill 1749 which basically requires the State Director of Finance to transmit to each County a percentage of all fines and forfeitures collected for all contested traffic infractions 5 COUNCIL MEETING FEBRUARY 15, 2012 committed in the County. This bill was heard on February 2 and it has passed with a House draft one (1). We have not seen necessarily the new house draft, but we understand it's not major types of changes, so this bill will be moving on to House Finance. House bill 1750 /Senate bill 2047 which increases the time the County Councils have to review affordable housing projects from 45 to 60 days. This bill was also heard in Housing... the Senate bill was actually heard in the Housing Committee, and it did also pass as Senate draft one, and we will be getting updated copies of that as well. House bill 1751 /Senate bill 2048 which is include County representation on State Employees Retirement System Board of Trustees. This bill was just heard, was just passed yesterday as House draft one (1), and we will also be getting new updated copies of the bill as we move forward. House bill 1752 /Senate bill 2049 requires that one (1) of the five (5) seats on the Board of Trustees in the Hawai`i Employer Union Health Benefits Trust Fund be reallocated to Public Employers and be occupied by a member appointed by each Mayor of all four (4) counties of Hawai`i and by the Hawai`i State Association of Counties, and authorizes the Governor to fill the vacancy should it not be filled within sixty (60) days. This bill has not been heard and I guess at this point in time, it doesn't look like it will be moving forward. There is one (1) Resolution that we also were asked to track, and that's Senate Resolution three (3), which urges the Governor and the Legislature of the State of Hawai`i to preserve the Counties' share of the transient accommodations tax. Again, Resolutions deadlines for hearings and passage is in front of the rest of the bills, so that still has a lot of time before it needs to be heard. The other one is House bill 1753 /Senate bill 2050 which makes permanent the liability protection for State and County governments regarding the duty to warn of dangers on improved public lands and actions of County lifeguards. The house bill was heard and passed un- amended from water, land, and ocean resources. The next set of bills we have are the Kaua`i legislative package bills. House bill 1780 /Senate bill 2042, which prohibits the sale of aquatic life for aquarium purposes, establishes penalties, and requires the Division of Aquatic Resources to submit an annual report on the effectiveness of enforcement. Neither bill has been heard. There's a set of House and Senate resolutions and concurrent resolutions, again requesting the Legislature of the State of Hawai`i to amend Chapter 188 HRS by adding a new section to be appropriately designated prohibiting the sale of aquatic life for aquarium purposes and amend existing section 188F -4 regarding the West Hawai`i Regional Fishery Management Area Plan, and section 189 -11 regarding receipts the in Management Area Plan, and section 189 -11 regarding receipts in duplicate. A resolution requesting the Governor to issue a moratorium on the commercial take and sale of aquatic life taking for aquarium purposes from State waters and, requesting the Hawaii Department of Land and Natural Resources to adopt a rule prohibiting the commercial take and sale of aquatic life taken for aquarium purposes from State waters. Again, none of these Resolutions has been heard to date. COUNCIL MEETING FEBRUARY 15, 2012 House bill 1781 /Senate bill 2041 segregates teachers from all other employees for determination of employer normal cost, accrued liability contributions, and annual contributions by the State and counties to the Employees' Retirement System, and revises employer contribution rates for fiscal years 2013 -2014 and beyond. Neither of these bills have been heard. House bill 1782 /Senate bill 2040 which increases the member on the Employees' Retirement System board of trustees from eight (8) to ten (10), establishes County representation on the ERS board of directors, provides that the Counties shall be responsible for all necessary expenses incurred in the performance of the County member's duties. Neither of these bills has been heard. House bill 1783 /Senate bill 2039 requires one member of the Employer -Union Health Benefits Trust Fund board of trustees to be appointed by agreement of the mayors of the four (4) counties and approved by the Hawai`i State Association of Counties, and authorizes the governor to fill the vacancies should it not be filled within sixty (60) days. Neither of these bills has been heard. House bill 1757 and Senate bill 2038 requires solar water heaters on new duplex buildings and allows for a variance by an occupant. This bill was heard yesterday and has been deferred. Do you have any other questions regarding the bills? I guess we're open for questions at this point. Chair Furfaro: Before I open it up to members... do you have the Resolution this Council passed regarding Aquatic Life? Mr. Matsuura: Yes. That's the Senate Resolutions... Chair Furfaro: Yes, but do you have our Resolution, a Resolution passed by the County Council in our position? Mr. Matsuura: You know what, I don't think I have the original. Chair Furfaro: Okay, we'll get you a copy. Mr. Matsuura: Okay. Chair Furfaro: And regarding the TAT piece, I'm assuming this is the Senate bill that deals with opening up vacation activities on Ag land? Mr. Matsuura: No. Chair Furfaro: No? Okay. Where is that bill, what is that number? I would like to ask you if you have a copy of the testimony that I sent via Senator Kouchi's Office stating our position or at least my position that we have controls in place that we've been working on for over the last ten (10) years not to expand anymore visitor activities in the Ag districts. Do you have a copy of my testimony? Then very good, I'll get you a copy of that. Again on the Resolution that was voted by the body, the testimony against the expansion of any vacation rental on current Ag land was solely testimony from myself, I don't know if other members 7 COUNCIL MEETING FEBRUARY 15, 2012 got copies, but if you don't have it, I'll get you a copy today. Vice Chair Yukimura, you had a question, go right ahead. Ms. Yukimura: Yes thank you. Following up on your questions about the transient vacation rental, it's not really an official Council position, but I think at least three (3) of us submitted individual testimonies and we may want to present it to the Council to make it a Council position at some point. I think Councilmember Rapozo, you submitted something. Oh, okay, so four (4) of us submitted. Chair Furfaro: So you should have four (4) separate testimonies. Mr. Pacopac: They deferred that bill. Ms. Yukimura: They did yesterday I think. Chair Furfaro: But I just wanted to make sure you had copies of these testimonies? Mr. Pacopac: Yes. Chair Furfaro: This is my testimony voicing strong opposition to that bill. Ms. Yukimura: So on SR3, transient accommodation tax, it just says see position asking the Governor and the Legislature to preserve the county share of TAT. I saw Senator Kouchi yesterday, and he told me that a high ranking legislative leader has said that that's not on the table anymore, that in fact we will be... I mean it looks like it's not going to be really up for change this year, is that pretty accurate? Mr. Pacopac: At this point there really hasn't been any discussion on the TAT, so it's not really on the limelight at this point. I think they're looking at using all of the resources they have before they even look at TAT, so at this point it hasn't been on the table for discussion. Ms. Yukimura: So that's a good sign. Mr. Pacopac: Yes, that's a good sign. Ms. Yukimura: We don't know until the very end. Mr. Pacopac: Yes, as usual. Ms. Yukimura: Because there can be a lot of last minute activity, as you know better than we do. Mr. Pacopac: Yes. Ms. Yukimura: But so far that's a good sign. 8 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Pacopac: We're very early in the session yet. This Friday is the first deadline, so most of these bills that we referred that was deferred or hasn't been heard, it's probably going to die. So we'll probably take this off the list but if it doesn't hear... if it's not heard by this Friday, those bills won't make the First Lateral and Decking. And then of course we have another deadline after that, the crossover. Once the crossover comes in, half the bills will be done. Ms. Yukimura: When is the crossover? You have it here on the calendar? Mr. Pacopac: Yes. First crossover is March 8. Ms. Yukimura: Okay. Chair Furfaro: Will the Councilwoman yield the floor for Councilmember Rapozo? Ms. Yukimura: Yes. Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you. Thanks for being here today, I appreciate you guys flying over here today. I guess my question is more on the process, I know the TVR bill was not in any of our packages, so obviously you didn't get any information on that, but as far as the direction that you folks take, is it basically you... I mean do you have a point of contact here at the County Council or do you work... Mr. Pacopac: Ricky. Mr. Rapozo: With Ricky? Mr. Pacopac: Yes. Mr. Rapozo: So with HSAC, County packages, and HCOM bills from the respective entities go to you and you folks track those bills? Mr. Pacopac: Yes. Mr. Rapozo: Okay. Obviously we'll see what happens on Friday, because I think a lot of it will disappear? Mr. Pacopac: Yes. But anything that the Council has, we work with Ricky on it. Mr. Rapozo: Okay. Mr. Pacopac: So even your testimonies, everything... you want to get it to us, get it to Ricky, and he'll get it to us. Chair Furfaro: I think we know that. I also want to thank you for accepting my calls. COUNCIL MEETING Mr. Pacopac: Mr. Rapozo: Mr. Pacopac: senate draft one (1). 9 Oh, no problem, Jay. Thank you Mr. Chair. Mr. Pacopac: Yes, we have it on the list. FEBRUARY 15, 2012 Mr. Matsuura: Chair, just for your information, I know that the bill that he was interested in was 2341 on the TVR, and that bill was heard yesterday as well, and it did passed with amendments as a senate draft. I don't know what the draft looks like; it still hasn't come out yet, but it did pass. Mr. Pacopac: Ricky has a system, you guys have a system of tracking also, so as soon as it comes out, he will be able to pull up the amendments on the new draft and get it to you folks. Chair Furfaro: That's what he just reminded me about -the system. Mr. Pacopac: Right on, Ricky. Chair Furfaro: Mr. Bynum. Mr. Bynum: 2341 is regarding Ag? Ms. Yukimura: TVR. Mr. Pacopac: It's regarding TVR, yes. Mr. Bynum: So it didn't get deferred, it passed? Mr. Pacopac: Well they met yesterday. At the first hearing it was deferred, and then they heard it yesterday. Mr. Bynum: I see. And then they' made changes to the bill as Mr. Bynum: So I wanted to ask about, are you familiar with HB 2626 introduced by Derek Kawakami? And in our scope of services, if we request you to keep us informed about the status of bills that are not on this list, is that in your scope as well? Chair Furfaro: Are you talking about safe routes to schools? Ms. Yukimura: Yes it is. Mr. Pacopac: What is your question, Councilmember Bynum? Mr. Bynum: I have two (2) questions. One (1) is, are you familiar with HB 2626? 10 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Bynum: And is it something you're tracking? Mr. Pacopac: Yes, we're monitoring it. Mr. Matsuura: We are... let's put it this way... because of the way our contract is written, there are certain bills that were quote unquote supposed to be tracking, we have that on one (1) side, but we have been aware of some of these other bills and we've been trying to pick them up as we go. That bill did come up as well and so we're watching it, it's not one (1) that's quote unquote that's official sort of speak, on the list, but we'll transmit that information to Ricky. Mr. Bynum: So you're a resource that we can contact because the intricacies of the Legislature is sometimes daunting, and we're busy with County stuff, but like this bill is a bill that I want to pay attention to. Mr. Pacopac: No problem. Mr. Bynum: I've offered testimony. Mr. Pacopac: If you get it to Ricky, we'll take care of it for you. Mr. Bynum: So we can call on you for a resource and let us know... Chair Furfaro: I want to clarify that... the contract is specific that the Councilmembers may go through Ricky. Mr. Pacopac: Yes. Chair Furfaro: But as I gave comment, I was very appreciative of the few times I called Jimmy. Mr. Pacopac: I mean we're not that hardcore. Chair Furfaro: But I need to make sure we have a contract, we have a procedure, you know let's follow it. Mr. Pacopac: Yes. Chair Furfaro: But you've been very generous in receiving Councilmembers' calls. Mr. Bynum: Do I still have the floor? Chair Furfaro: Yes. I wanted to make sure we clarified something that the conduit to them is through Ricky. Mr. Pacopac: Yes. Mr. Bynum: So what is the current status of 2626 that you know? 11 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Matsuura: As far as we know, it has been referred to the Education Committee. They are the same single referred Committee so their time deadlines are pushed further back. Mr. Pacopac: Two (2) more weeks. Mr. Matsuura: (inaudible) Mr. Bynum: Is there a companion senate bill to this? Mr. Pacopac: We have not seen one. Mr. Bynum: So if it makes it all the way through the House to crossover, then the Senate has to take it up? Mr. Pacopac: Mr. Bynum: testimony right? Mr. Pacopac: It will be sent over to the Senate for review. What I'm interested in is ability to do timely Okay. Mr. Bynum: And it's hard always to know... it's like now, do it now. You know it's at this Committee and you need to get it in by this date. Mr. Pacopac: Well the system that Ricky has right now, will show you when the hearings are coming up also, so that Ricky can inform you that the bill is coming up and you can submit your testimony electronically. Mr. Bynum: My next question was about SB 2038 you said and HB 1757 was deferred regarding solar water heating? Mr. Pacopac: Yes. Mr. Bynum: And so that means it's dead for this session? Mr. Pacopac: Looks like it. Ms. Yukimura: Wait.a minute. Mr. Pacopac: It didn't meet the deadline. Ms. Yukimura: I'm sorry? Mr. Pacopac: If it's not passed by this Friday. Ms. Yukimura: Right, but it was deferred to tomorrow. Mr. Pacopac: Yes, so tomorrow they may still hear it. Ms. Yukimura: So it's not dead yet? 12 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Pacopac: Friday, it will be dead. Ms. Yukimura: Mr. Pacopac: So we have untill Friday for that bill. I think they deferred to hear it, what tomorrow? Ms. Yukimura: afternoon. Mr. Pacopac: Mr. Pacopac: it in late, it will be submitted as late t Mr. Bynum: Kaua`i legislative package is what? so... Ms. Yukimura: Mr. Bynum: Package? Ms. Yukimura: Mr. Bynum: prepared to support that bill. Ms. Yukimura: Chair Furfaro: Ms. Yukimura: No, no... until Friday. If it's not moved up by Right. It's deferred to 2:55 tomorrow in the Yes. So they're going to hear it again Mr. Bynum: So if I wanted to testify for that particular hearing, it would have to be today right? You can submit it today. And even if you get estimony. The reason that this bill was not on the Because the Council passed it unanimously, It is. Why is it not on the Kaua`i Legislative Because the Mayor... The Administration I guess did not want to Mr. Pacopac: put it on the package. Mr. Bynum: So the bill just clarifies the legislative intent of the solar water heating bill that's already passed, and the Mayor was opposed to supporting that bill? Mr. Pacopac: I don't know the reasons why the Mayor... Mr. Matsuura: All we understand is that the bills that are on the list that we have are those that were both agreed to by this body as well as the Administration. The reasons is a little beyond us. I would indicate that the Mayor wasn't I had spoken to the Mayor personally. Excuse me, Mr. Bynum has the floor. Yes, but I wanted to clarify... 13 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: discussion... You folks are having an individual Ms. Yukimura: Can you yield so I can explain? Chair Furfaro: If you would like to yield the floor to Vice Chair Yukimura, that's fine with me but until you yield it, you have the floor. Mr. Bynum: I'd be happy to yield the floor, because I want to understand. I thought this would be part of the Kaua`i Legislative Package. Chair Furfaro: Vice Chair Yukimura, you have the floor. Ms. Yukimura: Yes. We did send a letter requesting the Mayor's support and he has declined to support it, which really disappoints me, but that does... therefore does not allow it to be a part of a County package. It is still a Council package matter and I testified yesterday in support of the bill as representing the Council, because we had voted unanimously to support it. Just to let you know that, I don't really know if the public hearing is continued, it might be just decision making... Mr. Matsuura: Decision making. Ms. Yukimura: ... on Thursday and I'm not sure where it is going. Chair Gabbard did ask me what the Counties would think if we made the variance a County matter, and I'm going to email him back my personal opinion that I think it's a State standard that they have to set, but that we could administer it at the building permit level, it makes a lot of sense. But I don't know where it's... we'll find out on Thursday. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you. I think we got to realize and Chair Furfaro touched on it, the contract. We have a contract. The contract was reduced... Mr. Pacopac: Yes. Mr. Rapozo: ...for our lobbying services and we cannot expect you to do more with less and I'm just being fair because I appreciate the efforts of our lobbyist. I was up there last week to testify on the TVR bill and it was deferred and I haven't seen the draft but I can tell you that it's going to be substantially different, and it's basically... what they're going to do is give counties homerule. They're going to let Counties to allow TVR on Ag lands, that's what they decided, that was the punt from the Legislature, but we rely on these guys here to be our eyes and ears on the ground at the Legislature. I'm just going to say this bluntly, if we want to be able to pick up a phone and call you guys and say hey James, I want to track this bill, I want to track that bill and go through Ricky, we're going to expand the contract, then we need to be prepared to fund it. I don't think it's fair, and these guys are saying just call Ricky and this is kind of like on the side, but we are not really required... no, I think that's not fair. If as we go into budget session, if we want more activity from our lobbyist whom I believe we do and we should then we as a Council needs to... remember that number came across from 14 COUNCIL MEETING FEBRUARY 15, 2012 the Administration for the lobbyist fees, it wasn't a Council number. We agreed with them and we supported it but if this Council wants additional services of the lobbyist then we need to be prepared to fund it. I'll publically state my support for it and some of the public says no it's a waste of moneys, you guys only buy gifts and stuff... well I haven't received a gift from you, but I can tell you that I have seen you guys work at the Leg and we cannot... I mean look at the numbers that have passed. I'm not going to give the credit to HSAC, we did have a meeting but it's the lobbyist that is there every day. So if we want that additional services of the lobbyist as we approach the budget, we need to make sure our Council needs are addressed in that amount as well. Chair Furfaro: That will be a budget discussion and you're correct and I have acknowledged the appreciation when you have taken calls from us. We know your contract was downsized and there were certain specific bills that we were going to track but thank you for all of the (inaudible) that you do for us that Mr. Rapozo pointed out. Nadine, you have the floor. Ms. Nakamura: Thank you, good morning Scott and James, and thank you for this briefing, breaking it down by the HSAC package, the Legislative package, and the Kaua`i County package. I think it's important to look at it in that perspective. This was our effort to be proactive about the things that we thought were the highest priorities for Kaua`i but what I think is missing from our whole process that maybe needs to be reflected in your contract is how do we respond to bills that are there? What's the process that we go through to analyze which one of the bills being proposed that we are interested in and I think that's why we have this discussion here and so I would like to hear from you your suggestions moving forward on what is the key times that we need to hear or have the opportunity to look at. What are some of the bills being proposed that are of interest to Kaua`i for example the TVR bills, or safe routes to school efforts, what's a good process and how do we build that... put that into the scope of work so that your scope is not just limited to what's on this sheet of paper? Any thoughts? Mr. Matsuura: We have in the past with other clients utilized our service a little different. What we have done in the past is we have normally gone through every bill and then submit a list to the client saying that we believe that these have some impact on you. Through your own process, you folks evaluate, weed it out and prioritize and (inaudible) gets back to us and say well please keep track of these because it has some impact on us and then determine by priority or whatever different scale you want to go through and decide level of support or opposition, testifying or not... and all of that kind of centered around a bill tracking system which I think the County Administration and the Council, I think have taken upon themselves this year. Through that process again my understanding is that we are to go through this list and there will be new bills that are added as we go through it, whatever the critical bills are. There is an evaluation process going on currently through the Administration or Council staff or whatever it is. Ms. Nakamura: I guess what I'm looking at is, and I'm not sure for this year but maybe in the future, is a proposal of what that would look like and what are the critical timelines and then what the additional cost would be, but I think we need to not just look at what we want to correct but what we want to react to as well. 15 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Pacopac: And as Scott has mentioned and that is what has been on our contracts. Again this contract this year was reduced and therefore we not reviewing everything that we did last year. Last year we reviewed everything that would have had an impact to the County of Kauai. This year our scope was reduced only to what you folks tell us to look at and that's why it can be done but we just have to change the scope of work. Ms. Nakamura: Chair Furfaro: Thank you. (inaudible) Mr. Kuali`i. Mr. Kuali`i: Aloha and mahalo, thank you for this report. I just want to echo what Councilmember Nakamura said. I am especially interested in 2626, the Representative Kawakami bill and also the TVR on Ag lands and I think in the process you know there's the county package, the HSAC package and there's another Council proposal that came separately because the Administration didn't agree, so it could not make that County package. But also the fourth group, just automatically we should look at considering each year is any bills introduced by any Kauai legislators because us talking about it brings the education to our constituents. Of course we'll always be interested in TAT and then I think it kind of lends to statewide land use, things that impact all of us, and in that sense in that fourth group of items, we should make sure it's part of the contract. Mr. Pacopac: Again it's in the scope of work. Mr. Kuali`i: Yes. Mr. Pacopac: So it can be put in exactly on what type of work you would like done. Mr. Kuali`i: But thank you very much, this is very helpful and we'll be following up when it's time to testify. Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: I just want to say in one (1) way it's already in the scope of work, it says other related duties as determined by the county... Mr. Pacopac: Yes that's the other. So everything else here are under other. Ms. Yukimura: But I think Councilmember Rapozo's point is well taken. We have to frame it or give it some boundaries and we appreciate your gracious service, but it will be best for both sides to really clarify. Mr. Pacopac: Yes. Ms. Yukimura: Thank you. Chair Furfaro: Jim, we're going to find ourselves in a position that we had a very time - sensitive matter on our agenda here, I don't know if you're available to stay around for a while? If you are available to stay around, I 16 COUNCIL MEETING FEBRUARY 15, 2012 would recess this item and ask you to be available for a little while longer this morning. Is that acceptable? Mr. Pacopac: It's really his schedule. Mr. Matsuura: We do have another meeting but... Chair Furfaro: Where are you for time? Mr. Matsuura: We do have another meeting with another client but we can... Chair Furfaro: Okay and then I'm going to go to the next question, are there anymore questions at this time? Seems to me no questions, so then I would ask if you would like to step aside, I'm going to ask if there's any public comments so we can stay on schedule today and then we will move to receive this. Thank you very much. Is there anyone in the audience that would like to speak on this item? Mr. Mickens. GLENN MICKENS: Thank you Jay. For the record Glenn Mickens. I would just like to thank these gentlemen for being here. I also want to appreciate that we find out, the public anyway, to know that we have lobbyists. I didn't know these two (2) gentlemen were lobbyists, and I presume you are our conduit to them because I'm sure we as the public don't have the right to go to these people and ask them to come up with any messages that we want. Anyway, I think for clarity, even the agenda says nothing about these two (2) gentlemen being lobbyists but I'm glad that we do have somebody to represent us. Thank you Jay. Chair Furfaro: I think we meet the qualifications in the agenda, Glenn, but we do have a reduced scope and the communication to have them here today came from myself as Chairman. The fact of the matter, the contract allows two (2) formal reports from them during the year specifically shared with the Council and the Administration. I'm sure they will be back one (1) more time. Mr. Mickens: Thank you. Chair Furfaro: Is there anymore comments from anyone that wants to give testimony in the audience? If not, I call the meeting back to order. There being no objections, the meeting was called back to order. Mr. Rapozo moved to receive C 2012 -41 for the record, seconded by Ms. Nakamura. Chair Furfaro: Any discussion? Mr. Bynum. Mr. Bynum: I want to thank James and his partner that I'm not as familiar with... I'm sorry... Scott. I had opportunities to speak with James many times over the years and it is really critically important I think for our Council to have feet on the ground over there, things move very quickly at the Legislature. It's my fault that I wasn't aware that the scope of services had 17 COUNCIL MEETING FEBRUARY 15, 2012 changed and there was a reduction; I should have known that because I certainly want to get alerts. We have twelve (12) or fourteen (14) bills that are being tracked but there are literally thousands of bills at the Legislature and things can happen and they do things at the Legislature that would be illegal for us to do here, like in one (1) day, gut a bill and entirely replace its content. At the last minute where there's virtually almost no time to address it at times, and we need these individuals who are very competent to be on the ground to keep us aware so we can move quickly as necessary. I appreciate their work, it's a good investment, and I really want us to look at doing exactly what they said... use your expertise to look at the bills that are coming and alert us to the things that we may not be aware of, especially when things happen at the last minute, and so I hope we do that can of scope in service next time. Try to be as proactive as we can entering the legislative session. Thank you very much. Chair Furfaro: (inaudible) Mr. Chang. Mr. Chang: Thank you Mr. Chair. I want to thank Scott and Jimmy for coming here this morning. Mr. Mickens brings up a good point and it's very important for the public to understand that we do have lobbyists, and I want to just say that in Honolulu which is a different animal that moves very, very quickly, I want to thank the both of you for your relationships with our legislative team, three (3) of whom as you know served on the Council, Senator Kouchi, and Representatives Kawakami and Tokioka, and Representative Morikawa has thirty years of experience within the County. I just want to thank you folks for understanding what's important for us here on Kaua`i. Mr. Mickens, thank you for letting the public know that we do have lobbyists and it's also very, very important to know that these two (2) gentlemen have a very strong relationship with many of the other senate members as well as the representatives. So when they know something is very true and dear to Kaua`i you know it's not just our legislative team, it's the whole senate body and the representatives. We appreciate what you folks do in Honolulu and hopefully we'll spend more time with the both of you when you come back on the next trip. Thank you Chairman. The motion to receive C 2012 -41 for the record was then put, and unanimously carried. Chair Furfaro: Gentlemen, thank you. We look forward to a continued working relationship. , There being no objections, C 2012 -51 was taken out of order. C 2012 -51 Communication (2/09/2012) from the Council Chair, requesting the presence of the Department of Public Works to provide the Council with the status of the demolition permits for the Kekaha and Lihu`e Mills. Chair Furfaro: I would like to point out that this is an item that Mr. Rapozo requested through my office to be presented but we have been very blessed with the Economic Development Office making transportation available for students of Kekaha School. These kids in fact will have the opportunity to speak after we read the agenda item, in pairs, and I believe the teacher Jeanne Warren will be our first speaker on this item, and then a fifth grader paired with someone from the kindergarten grade will then come up and have some time to speak on this 18 COUNCIL MEETING FEBRUARY 15, 2012 item. The children are on a schedule, a school schedule, and that's why this might be a little bit more unique before we call up Planning and the Building Department so that they can actually hear the questions first. Again, the agenda item deals with demolition and permitting. May I ask Jeanne, I'm going to suspend the rules, and Jeanne may I ask you to come up first: There being no objections, the rules were suspended. JEANNE WARREN: Aloha and good morning Councilmembers. I am Jeanne Warren, I'm the Students Services Coordinator at Kekaha Elementary School and we'd like to thank you this morning for this opportunity to address all of you with an issue that is of great importance to us in Kekaha. Today I have with me Mrs. Chelsie Ruiz, she's a kindergarten teacher, along with her student teacher Ms. Aundra Drake along with her kindergarten class, and Ms. Sue Shot who is a fifth grade teacher with her student teacher Mr. Tabis Kagawa. Several months ago, the teachers and students at Kekaha School focused on the community issue of contamination in Kekaha. It was a school -wide civic engagement lesson that involved a variety of activities which included research, mapping, in depth discussions, site visitations and all of which led to a school -wide assembly. Students expressed their thoughts through poster presentations and I have the original posters for you, I did not make copies because I don't want these just to end up in the trash, but if you would like to look at these and then somehow return them to me, I would appreciate it. Chair Furfaro: we'll have them returned to you. Ms. Warren: cd, I could give you the cd. Chair Furfaro: Jeanne, we'll have them scanned and then I have them scanned so if you would like the We'll gladly accept your generosity. Ms. Warren: Okay. Many of the community leaders at that time, and public officials, were invited to this assembly, but some were not able to attend and some did not respond. The community was so impressed with what the students had done and their involvement that they too were inspired to sign declarations along with the children supporting or asking our State and County leaders to support their efforts in maintaining or making sure that Kekaha was kept clean. In November, Councilmember Rapozo held a town meeting in Kekaha and personally followed up with a visitation on campus in December to talk story with these two (2) classes that are here today. All the while our intent of this civic engagement activity was to show our students the process of being responsible community contributors which is one of the general learner outcomes that we expect of all students. At school when there is a concern, students know that they can bring it to our student council, teachers, and even the principal and of course some of them would like to go straight to the top. But through Councilmember Rapozo's help, our students were able to make that connection because this was also a process that they now knew adults followed. So when they had concerns in the County or the community, they could go to their County Councilmembers. Councilmember Rapozo was so impressed with the comments and questions that our students presented to him on that day that he wanted them to have this opportunity to allow them to address the County Council not only to share their 19 COUNCIL MEETING FEBRUARY 15, 2012 concerns but also to allow the students to experience of seeing this process through. In January, Mayor Carvalho held a 2020 vision meeting in Kekaha, a declaration along with our student's posters were presented to him in which he responded with a letter indicating his support for doing everything within his power to make Kekaha's community a safe place for children, as well as ensure us that good pono decisions would be made for the community. Two (2) weeks ago, Councilmember Rapozo informed me that the County Council had selected February 15, today, as the day that would be appropriate for our students to attend the meeting and briefly articulate their perspectives as a learning experience for them. Our teachers with their students have been focused in preparing themselves for this opportunity to exercise their civic duty in being proactively engaged and involved in the ways in which they can become a vital part of government in action. Extra time and effort has been taken to have these students do the best that they can voicing their thoughts briefly; however, on Friday I was informed by Council Chair Furfaro that he had set an agenda that was jam - packed with presentations. He also informed me that these agendas are set a hundred and twenty days out and felt that it was necessary to disclose the parameters of today's meeting. As a result we were advised that we could only have time for five (5) speakers at the three (3) minute maximum. Because of our time constraints and the fact that our students do have to get on the bus by 11:00 so that we can return for a early release day, I would ask Councilmembers to please refrain from asking questions after each student speaker and I apologize in advance if we have to rudely leave during the presentations that follow. We thank you again for this opportunity. Chair Furfaro: Jeanne thank you for that overview, and I do want to make a note that we will allow at least twenty -four minutes of testimony from the children because there are time restraints but obviously you have paired it very well and we'll call them up. Mr. Rapozo: Mr. Chair, can I just make a one (1) minute comment? Chair Furfaro: Go ahead. Mr. Rapozo: I just want to say thank you to Kekaha School for allowing me to speak at their school and I got to tell you that I was pretty impressed. What was more concerning was the genuine concern of these kids. These kids have a genuine fear of what may happen and I did speak with Mr. Chair who immediately got this on the agenda as soon as he could which normally stuff like this takes time when you get the coordination of kids and bus and all of that, so I wanted to thank the Council Chair for getting this on as soon as he did because normally it would have taken a lot longer. With that, Mr. Chair, I wanted to thank you for your accommodations. Chair Furfaro: You're welcome. So we do have the list of the paired speakers. We have one (1) fifth grader and one (1) kindergartener in each group. GABE BUSTILLOS: Hi my name is Gabe and my last name is Bustillos and I go to Kekaha School and to Mrs. Ruiz class. JAYDEN TAALA: Hi my name is Jayden. I go to Kekaha Elementary School, I'm in fifth grade and I'm ten (10) years old. 20 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Taala: My name is Jayden Mae Taala. I am a ten (10) year old, fifth grader at Kekaha Elementary School. I am a resident of Waimea but I spend most of my times in the town of Kekaha. Part of our Social Studies standards this year included understanding American Democracy, plus we've been working on our oral communication skills all year long. I am here before the Council today to exercise my right in a democratic government and understand my opinion... and voice my opinion... I'm sorry. The toxins in the soil at Kekaha Mill are very bad for me, my friends and family. I would like to ask our community leaders to take the toxins in the soil and ship it somewhere else. After they take it away and ship the soil, I would want a concert area built for people who just want to have fun and perform. Thank you for letting me speak today at this meeting. I hope that you have listened to me, my opinions and my concerns. Mahalo. Chair Furfaro: Thank you very much. We will later have someone from the Health Department in the audience as the permit on demolition goes forward. We will not be asking any of the speakers questions at this time. We want to thank you, but look forward to the next pair. AMBRIAL KANAHELE: Good morning. NAOMI KAAUAMO: Hi my name is Naomi Kaauamo and I go to Kekaha School and I am ten (10) years old. Ms. Kanahele: Hi, my name is Ambrial and my last name is Kanahele. Ms. Kaauamo: Good morning Councilmembers, my name is Naomi Kaauamo and I am a fifth grade student at Kekaha Elementary School. I am a resident of `Ele`ele but spend most of my time in the town of Kekaha. In school we have a process and a student council to help govern our school. We have a voice in this school and we hope that our voices can be heard here today as well. Our voices helps us a lot because when we grow up we can tell the government our dislikes and likes. So now I'm going to use my voice today about the toxic soil in Kekaha. I would like the community leaders to seal away the toxic soils and ship it away and replace it with a free petting zoo for kids. Thank you for allowing me to voice my opinion here today. Mahalo. TEVITA KAMAUOHA: Hi, my name is Tevita and my last name is Kamauoha. TERRILYN PIMENTEL: Hi, my name is Terrilyn Pimentel and I'm a fifth grader at Kekaha Elementary School. Ms. Pimentel: Good morning Councilmembers. My name is Terrilyn Pimentel and I am a fifth grade student at Kekaha Elementary School. I am a resident at Kekaha and spend most of my time in the town of Kekaha. I am concerned with the clean up and the future of Kekaha Mill. Kekaha is my home and my playground. I ask the Council to make decisions that will keep me safe and healthy. I would like the soil sealed and locked up forever. It would be a great place for a community garden. Thank you for your time and for listening to our opinions. I hope that our voices are heard and that your decisions are good ones for my future. 21 COUNCIL MEETING FEBRUARY 15, 2012 SAMANTHA BOSTICK: My name is Samantha Bostick and I'm a fifth grader at Kekaha Elementary School. KAAINA KANAHELE: My name is Kaaina Kanahele. Chair Furfaro: Thank you very much for being here. Now you have the floor as the speaker, go right ahead. Ms. Bostick: Good morning Councilmembers. My name is Samantha Bostick and I am a fifth grader at Kekaha Elementary School. I am a resident of Kekaha and I spend most of my time in the town of Kekaha. I would like the mill to be a museum showcasing the history of the Kekaha Sugar Mill, the equipment used by the sugar mill and its workers, the life of the sugar plantation workers and how they lived, and an oral history from living plantation workers of the Kekaha sugar mill. There could also be a community garden for the residents of Kekaha where they can grow their own vegetables and produce for their own consumption, or to be sold at a bimonthly farmers market, located on the grounds of the sugar mill. A small admission fee could be charged for visitors to the sugar mill museum, and a gift shop featuring local arts and crafts that would be sold to the visitors of the sugar mill museum. All proceeds from the admission charge and gift shop sales will help offset the cost of running the sugar mill museum and community garden. Thank you. Chair Furfaro: Thank you young lady. And if I can ask all of you, my staff would like to collect their testimony and so we can make copies and we'll give it back to you today. This last speaker talked in terms of a business plan and so we would like to be able to have that. Going forward I would like to be able to share with you my intent of having this presentation to the best of our ability during the time that the children are here and they know when it's best to step out for their time constraint. I also want to take a moment to thank Mr. Rapozo again for making contact with George Costa and certainly the kokua we had from the Mayor to provide transportation to get the children here. I would like to point out for those in the audience that my intent is to first call up the Planning Department to first go through their role in the process and approvals, followed by the Building Department. I would also like to acknowledge that we have people from the State Health Department as well to give testimony to those points. I want to also note in the audience at their own initiative are members from the ownership group who wanted to participate and be here today. I just wanted to thank them as well to be able to hear from the group. On that note I would like to continue with the suspended rules and have a presentation by Mike at the Planning Department, then followed by Mr. Dill and your staff, followed by State Health Department, and. then I will open it up to others in the audience. Mr. Rapozo: Mr. Chair, I just wanted to make sure we focus, you know the whole idea to have the kids here today and be able to participate over and above the technical aspects of a demolition permit and all of that is really, I want these kids to leave here today with an assurance that in fact their government leaders are going to ensure the safe demolition of the mill. I believe it's going to be a safe process, but I want them to know that as they leave 22 COUNCIL MEETING FEBRUARY 15, 2012 today on the bus. When they get on that bus... so that they can be assured that we're going to make sure that the demolition of the Kekaha and Lihu`e Mills are going to be a safe process so they don't have to worry about getting sick and being concerned about those safety issues. As long as the kids are here, if we could limit our questions to those areas so that the kids can get the best benefit and if we want to get technical after the kids and our caption break is over then I would suggest we do it then. Thank you again Mr. Chair. Chair Furfaro: All good suggestions. Kaaina and Mike, the reality is we want to get overviews while the kids are here on process and permitting, Planning Department's role, and then we'll go to engineering but not get technical because we can always call you back later. Mike and Kaaina, introduce yourselves, the floor is yours. MIKE DAHILIG, PLANNING DIRECTOR: Good morning Mr. Chair, members of the Council, Mike Dahilig with the Planning Department, along with Kaaina Hull, and we're here to provide our involvement with the demolition permitting process concerning the Kekaha Mill. Our CZO does not consider, in our interpretation, does not consider demolition a development of. And so what we do is when an application does come into the Building Division, we take a look at the demolition activity from a standpoint of whether one (1), it hits anything regarding historic preservation purposes. This particular demolition did go before the Kaua`i Historic Preservation Commission and they reviewed it and made suggestions to the landowner concerning how the demolition and the recording of historical data should be done. For the most part, we then issue a class one (1) zoning permit number as a means of tracking the demolition review process, but it is not necessarily done in the matter that we're allowing development, per say, because again demolition is a taking down of development. We really review it more so for the conformance with existing permits, making sure that what's being taken down, is being taken down, and then also whether or not there is historical preservation issues that need to be reviewed before we move forward on our type of process. Chair Furfaro: Kaaina would you like to add anything on that process? KAAINA HULL, PLANNER: I think Mike summed it up. Briefly I would like to add that a lot of the concern that comes out of the Kekaha area and just in the general public, and that has been brought to the Department's attention several times, is concerning soil remediation and further environmental to clean up. A lot of the individuals have looked at the Planning Department for requiring such clean ups and these types of clean up can occur and Planning Department has the jurisdiction to do so but only in so far as when a construction or development is proposed. So when a applicant, landowner, an individual comes in and proposes a particular type of use or structure then the Planning Department can require certain mitigation measures including but not limited to environmental clean ups. So if anything is proposed on this property, it will, given the size of the property or the nature of the property, it will have a fairly public process before the Planning Commission, and at that time the Department, the Commission will look at considerations including environmental considerations and input from agencies such as the Department of Health concerning requiring such clean ups. COUNCIL MEETING Chair Furfaro: thank you for your overview. Engineering. 23 FEBRUARY 15, 2012 Okay. I think at this point I'm going to Please stay in the audience for now. Mr. Dill... LARRY DILL, COUNTY ENGINEER: Good morning Council Chair, Councilmembers, I'm Larry Dill, County Engineer. DOUG HAIGH, CHIEF OF BUILDING: Good morning, I'm Doug Haigh, Chief of the Building Division, Department of Public Works. Larry asked me to take the lead here since the responsibility for the demolition permits is with the Building Division. The Building Division manages the building demolition permit process, so we take in the application from the owners and we have it reviewed by the appropriate agencies to review such permit. The Building Divisions review is very limited. We just look for a plot plan and identification of the building to be demolished. We do not have any specific regulations on how a building should be demolished. We then forward the plans to the Planning Department and as they discussed primarily, they look at the historic property issues in their review and then the permit goes to the Department of Health. The Department of Health really has the major role in reviewing demolition permits for health issues. Once the permit is issued, the Building Division role is very limited, we only inspect upon completion of the demolition to assure that the building has been demolished. We do not do any inspections during the demolition process, as we do not have regulations that direct people how they're supposed to demolish buildings. We focus on building buildings and not demolish. Our role in this process is very limited of being the managers of the building permit process and some limited action by our division. Chair Furfaro: Mr. Dill would you like to offer anything at this time on that overview? Mr. Dill: Doug gave a good overview of the process the building permit applicants go through. Only thing I'll add to that is that the Building Division does two (2) things in the building permit process, they look for building code compliance related issues, and as Doug mentioned in demolition permit, there are no really code compliance issues. We just confirm that the work is done in compliance with the demolition that was proposed. We also manage the process to make sure that it gets routed to the appropriate agencies for the appropriate review and comments. At the end of that process having received the approval from the various agencies that we requested comments from, the division doesn't really have discretion as far as holding up the permits. So once we receive the comments and get the agency's approval, we are required to go ahead and issue the permit. Chair Furfaro: Okay, I want to thank you at this point and I'm going to ask you to wait in the audience as we hear from the State Health Department. Good morning gentlemen and thank you very much for responding to my request to be here from one (1) political subdivision to another. If you can introduce yourselves, I would appreciate it. GERALD TAKAMURA, DEPARTMENT OF HEALTH: Good morning Mr. Chairman and Councilmembers. I'm Gerald Takamura with the Department of Health specifically with the Kaua`i District Health Office, I'm the District Environmental Health Program Chief. Along with me is Darren Tamakazu and he 24 COUNCIL MEETING FEBRUARY 15, 2012 is our supervisor sanitarian who unit oversees the building permit application process. Chair Furfaro: Before you go any further just so that I can summarize this for the young people in the audience. So far we basically have an application that goes through the County Planning Department, they do an overview of that, they look for items dealing with the historic commentary and obviously as we heard from some of the children, they have some desire to have a historic component left at these mills sites. It then goes to Engineering for an overview and so forth as it's circulated, and eventually it goes for comments from the State Health Department. That turns around in what kind of time and I'm just trying to give a window for the children? DARREN TAMAKAZU: The time is kind of hard to say because what we have to do is get comments from other offices within the Health Department, other branches, other sections. Also get things like... what I have here is part of the permit process is asbestos notification forms which we let the Asbestos Branch (inaudible) know to get this to the contractor and they fill it out. We make sure that and say for this case that they have the information and the offices on O`ahu and once we know everything is correct and turned in, the other offices are happy... you know that everything is turned in, then we will sign off on that. Chair Furfaro: So that office in Honolulu, again I'm just trying to make sure we get a clear overview here... they're the ones that determine if there's an asbestos removal, it's best sprayed and encapsulated on the wall before the wall comes down... Mr. Tamakazu: Yeah... Chair Furfaro: They make those kinds of recommendations? Mr. Tamakazu: I am not too sure. Mr. Takamura: Let me explain on that one there. Chair Furfaro: Okay. Mr. Takamura: Before any process begins, whether it's demolition or renovation, there's specific rules that are applicable, both State and federal requirements. Primarily for non - residential structures there's a process that the owner or the contractor needs to follow, and part of which is to test materials to determine if they are asbestos or asbestos containing material. Based on that information, decision is made by the applicant as far as the best remedial action to take whether it's encapsulating or removal of the asbestos. Chair Furfaro: So this guidance that you have at the State Health Department is also layered with federal regulations about the appropriate process to be used and that information goes back to the owners group? Mr. Takamura: Correct and the actual process that we do with specifically the building permit application for demolition is that we attach an application to the plans and the County's Building permit application to get forwarded to the applicant. 25 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: Okay. Now as we go into the other question that came up, which department... the Health Department deals with the soil approach, soil contamination and so forth? I'm somewhat familiar with it coming from Kilauea but... Mr. Takamura: Okay Mr. Chairman, the process is with the Department of Health, we have a Hazard Evaluation and Emergency Response Office. That office actually have two (2) functions, one (1) is primarily in regards to spills or leaks of hazardous materials and the other portion of it is to take a look at areas of potential contamination. They tend to oversee addressing the contamination such as the concerns that the students from Kekaha School has. Chair Furfaro: So Gerald, that actually means a site inspection and some laboratory work being done by Health Department, can you expand on that a little bit? Mr. Takamura: Yes. What it is, if we're talking specifically with the building permit application process, that process would be similar to that of the County Planning Department when a development is being proposed. However, because of the known contaminants left by plantation operations and similar type of operations, that office has looked at a number of sites throughout the State and is working for mitigation actions on those types of contaminated sites. Chair Furfaro: And that's something that Mr. Gill is... his division is overviewing from the State? Mr. Takamura: Yes. It's his environmental health administration, the hazard evaluation and emergency response office that we use the acronym HEER is directly under Gary Gill, yes. Chair Furfaro: If I can ask you to stay for a while, I'm just going to ask for comments from Mr. Heu and then I'm going to open it up to some more questions. But if you can stay, I'd appreciate it. Mr. Takamura: Yes. Chair Furfaro: Mr. Heu, I just have one (1) question for you if what the testimony that was given today by Building and by Engineering, may I request that in more recent times here, we give a little written summary in procedural process just to share with the Kekaha community. Would your office be willing to do that? GARY HEU, MANAGING DIRECTOR: Sure. For the record, Gary Heu. So you're asking if we could do a little summary or write up on the procedures as far as processing of the demolition permit from the perspective of Public Works Building Division. Chair Furfaro: Yes. Mr. Heu: We can do that. Chair Furfaro: That's all I'm asking for Gary. 26 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Heu: Not a problem. Chair Furfaro: Thank you very much for being here and I'm going to call Jeanne back up... Jeanne, if I may. Mr. Heu: Thank you. Chair Furfaro: Jeanne if you have more students that would like to testify, I would like to provide them the opportunity because we still have fourteen minutes before you have to... Ms. Warren: We actually... we're going to get ready to leave, because when you're little, you have to make sure you make it to the restroom before you get on that bus. Chair Furfaro: That's right. Ms. Warren: But since you brought me up here, I just want to leave you with this one (1) message. At Kekaha School, we do a morning message and in part of our morning message we have words of wisdom and it was kind of ironic that this morning, this was our words of wisdom... and it's about citizenship because I guess it's getting close to Presidents' Day, so all of our messages have been about citizenship. But this was our words of wisdom this morning, at some point in our lives most of us will be asked the questions what do you want to do when you grow up, why do you want to do that? Probably the most acceptable answer to the question would be this, to give to the world in some positive way. To make the world a little better, that's why every life is important. And I ask you as a parent and as a teacher in Kekaha to make sure that you value the lives of our children. This issue affects them more than anybody else. Every human being can do something wonderful in this world. Someone wise once said, remember that you are needed. There's at least one (1) important work to be done that will not be done unless you do it. Always keep in mind that we need you. We need you, County Councilmembers, to make good choices and good decisions for our communities. The world needs the absolutely unique and unrepeatable gift that only you can give the world. We ask that you give our kids a chance and have that right and to give something back to this world. Thank you again for inviting us today and allowing us to speak. Chair Furfaro: Jeanne, I'm going to thank you for those comments but I'm going to also ask while the children are still here and I know you have to leave at a certain point but I'm going to ask the ownership representation if they would like to speak on any of this while you're still here too. Ms. Warren: Can they speak really fast? Chair Furfaro: Sure they can. Good morning Lynn. LYNN MCCRORY: Good morning. Chair Furfaro: First of all let me thank you... I know you flew back from the mainland because you wanted to be here to kokua the community so you've heard some of the concerns and I'll leave the mike with you now. 27 COUNCIL MEETING FEBRUARY 15, 2012 Ms. McCrory: Thank you and good morning Council Chair and members of the Council. My name is Lynn McCrory and I'm one of the owners of the Kekaha and the Lihu`e Sugar Mills. We are also and have been consistently very concerned about the safety issues with the mills. As they sat vacant for any number of years with very minimal maintenance, we finally reached the decision point where they need to come down. They need to come down for the asbestos that's already in the mills which is pretty prevalent. We don't want to worry that somewhere we have a very strong wind, and I won't use that word, that starts blowing through everything and we end up with asbestos everywhere. That's a very serious concern. That's the point of our taking the mills down now. The issues with the brownfields as they're called, which is the toxins in the soil, we have already done a number, fairly large amount of testing in Lihu`e. We did that probably about two (2) years ago with a separate company that has come in. We will be working with the Department of Health on our ongoing basis, we do work with the HEER office that we deal with. I talked with (inaudible) Grang who's the head of that department a couple of weeks ago, as a matter of fact, on the issues. We are going to be testing once the buildings are down, but again, what we're looking to do is we don't have a final plan yet for what will go on those sites. They are zoned Industrial and should that change be to Residential, as an example, should something like that... the brownfields need to be dramatically cleaned up from where they are. But it goes with the zoning and what goes in, so yes, we agree that there are issues with that. We understood that when we bought them. We have moved forward as carefully and safely as we possibly can in this issue because we are surrounded by a community and the kids are absolutely great. I mean I was delighted to hear they actually took a day and looked at what else they could do and how they could do it as children soon to be of an age where you want them in front of you, you want them doing things. I think that's great. I have no issues with it whatsoever. So as we go forward, we're going to do it as safely as we can, we've hired separate environmental consultant just for the purpose of reviewing everything a contractor does. He gets paid by us, is not paid by the contractor, so we have one (1) more check over everything else that's going on. Thank you very much for the opportunity and thank you very much for taking the time to listen to the kids because it is very important for them to understand how the system works and how the process is and to understand that they can come forward and make statements. Thank you. Chair Furfaro: Since you are here right now, I'm going to ask Councilmembers if they may have a few questions of you right now. Ms. McCrory: Sure. Mr. Rapozo: Thanks Lynn and thanks for being here today and you know we've met on prior occasions you explained your plan and I'm real comfortable with the plans that you folks made and the checks and balances that you folks have in place. Unfortunately, not everybody gets to see those plans, and our kids, and I can remember when I was their age, a fear of a nuclear bomb and many of you that are my age can relate to that fear, it's a fear, when you go to sleep you wonder am I going to die tonight, is that bomb going to go off, and a lot of it was stuff that was in the news and in the TV, but that's what I sensed when I went to Kekaha School and I really wanted them... and obviously they're going to leave before they get the assurances from the Department of Health but we'll definitely convey that. I agree with you if nobody stepped in and purchased that 28 COUNCIL MEETING FEBRUARY 15, 2012 mill, I think we would be at greater risk of contamination from that asbestos, so I appreciate what you guys are doing and I appreciate you coming out because I think the kids really deserve to get the sense of assurance that whatever is done, is going to be done, and that our State and local leaders will be there to make sure that everything is done properly. Thank you very much. Ms. McCrory: You're welcome and know also that one of the things we committed at both...we had a community meeting ahead of actually starting the demolition at Kekaha, and another at Lihu`e, and we committed to both... at both meetings that we would do monthly community meetings. Once the demolition has started, we will be doing meetings. We have one coming up in March and another one in April, another one in May and another one in June for Lihu`e and then when we move to the Kekaha Mill, we'll be doing the same thing. I guess the teachers are all gone too, I mean it will be fine to have the kids... Chair Furfaro: Mr. Bulatao is here and other members. Ms. McCrory: It will be fine to have the kids come to one of those community meetings, there's not an issue with that because once more a community meeting is just as important and just as much a part of the process as this meeting is. I would encourage them to do that. Chair Furfaro: Thank you. Members, questions for Lynn? Mr. Bynum. Mr. Bynum: Just briefly, Lynn, thanks for meeting with me and keeping the Council really well informed about all of the plans and you've been very proactive and I appreciate it. Ms. McCrory: Chair Furfaro: comments? Vice Chair Yukimura. Thank you. Anyone else before I ask for public Ms. Yukimura: Also just want to say thank you, I wasn't aware you came back from the mainland. You have been keeping us informed and we appreciate that and it breaks my heart to see this historic buildings be gone and not have the reminder of our... part of our history. But it has to be then it should be done well and I think you tried to do that with your team. Thank you. Ms. McCrory: Thank you. Chair Furfaro: Lynn, I also want to add thank you for having your consultants here to hear the community concerns... Ms. McCrory: Yes. Chair Furfaro: ...present in the audience, a much appreciate it. On that note, I'm going to ask if there's others that want to testify on this agenda item. Ms. McCrory: Thank you very much. 29 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: You're quite welcome. Jose, if you'd like to come up? JOSE BULATAO, JR: Thank you. Jose Bulatao, Jr., Kekaha resident. I may have to catch the bus back, the Kaua`i Bus back, because I did come in on the Akita Bus with the children as a gesture of support on my part to be a part of their endeavor to express or to bring their express concerns to a public forum. I also am a product of Kekaha School, class of 1950 where I graduated from Kekaha School at that point in time in my life. I am a lifelong resident of Kekaha, having lived at 4314 Kokee Road for seventy -four (74) of my seventy -five (75) years in existence. I am a part of the plantation heritage that is Kekaha, the place, the town. There is much about what has been said about the contamination concerns in the community of Kekaha and I say this as a matter of history of things that occurred long before the current owner had possession of that mill site. I say this because currently there are concerns about contamination taking place outside of the mill site but connected to the mill site because we are the community that has several layers and several dimensions intertwined about who we are and where we are. I appreciate the explanations given by the Planning Department, the Health Department about the arenas of responsibilities that they have and the work under which they do what they must do to comply with what is required of them in health or in planning. But through all of this I need to emphasize that there is the health and safety issue that the children well expressed and brought to your attention and that is the crux of our concern. How can we effectively address the contamination concerns in the community that is what we want to accomplish. Now, in that process, I think it is going to be extremely important for those who are a part of this effort and that comes from the public sector and from the private sector that we all need to come together to understand what is going on and part of it in the request that we have made... alright I'm sorry, I know I... Chair Furfaro: That was your three (3) minutes, you can continue. Mr. Bulatao: Thank you very much. Is that we need to continue with open dialog and communication. As a for instance, at that meeting held on September 2011 that we had documented, the issue was on asbestos removal, we know that. But we brought to the attention of the mill owner that the contamination goes beyond asbestos remediation. We were also concerned about the matter and style in which the community will be kept informed about the processes that are going to take place and we have not received anything. We are concerned about that. We realize that there may not be areas of this possibility as in the Planning Department in terms of the demolition of the building and if they have certain things to work under, they also need to consider that the mill site, being industrial as it is, is situated in the middle of a heavily populated town which is the fourth largest community on the island of Kaua`i. To what extent are the laws applicable to the health and wellbeing of those who live around that mill site or are subjective to what may happen in the process of cleaning up that mill or the demolition of that mill site when we have no idea as to when and where and what will take place. Now there is a record of a point in time prior to what's going on now that an accident has occurred with the release of asbestos and there's documented fact of finally the Department of Health issuing a fine on that accident because of what had occurred. We don't want to see that happening again. Above and beyond the removal of asbestos, how will these other things be addressed. But as it was pointed out if there is contamination at all mill sites throughout the State of 30 COUNCIL MEETING FEBRUARY 15, 2012 Hawai`i, this is a common concern, not only to us here in Kekaha or there in Kekaha. But as some of you expressed Kilauea has that problem, there are mills on the Big Island that have that problem, there are mills everywhere in the State of Hawaii that has a similar problem, so it's not only us here in Kekaha that will have to face these concerns. What I ask is that as we continue to move forward and to listen to each other that there is that degree of clarity, transparency and accountability of what transpires. Thank you. Chair Furfaro: Thank you Mr. Bulatao. (Inaudible) to have Planning, the ownership, Engineering and the Health Department to give us this overview but I do want to caution the Councilmembers, we need to be aware too that the Charter prohibits us in certain solicitations directly to the department heads and so forth, I mean it was quite generous of the Mayor to respond to Mr. Rapozo's request to get transportation and so forth but the Administration did. I also heard from the ownership today that they're getting ready to have several monthly meetings about the next step with the mill. Mr. Bulatao: We'll look forward to that. Chair Furfaro: And I thought that was very, very good communication today, and I do believe that ownership group has started the same process in Lihu`e, and you are right about all the mills. I mean where I grew up as a kid was the first mill to close. The mill is built right next to Waianae drug store of which my mom was the manager. I used to walk through that property every day after school from Waianae Elementary and that's fifty something years ago, but I think I want to acknowledge the Health Department for accepting my invitation to be here today because they too need to be involved, and I think Mr. Gill made that step in Kilauea to know how important this issue is to the community and exactly what their kuleana is in responding to your concern and the children's concern. Mr. Bulatao: Thank you. Chair Furfaro: I appreciate your testimony. I am going to call Planning back, I am going to call Engineering back, and I am going to call the Health Department back to answer other questions that the members may have. Mr. Rapozo: I have a question. Chair Furfaro: Councilwoman Yukimura had... go ahead Mr. Rapozo. Mr. Rapozo: Are you going to stay... I'm sure the bus left, so you are going to catch the Kaua`i Bus back? Mr. Bulatao: Yes. Mr. Rapozo: That's good because I'm still not clear... it was clear by our Planning Department and Buildings Division that we really have no oversight on the process, I mean our part is over, although I do have some questions about the permit... Chair Furfaro: And they'll be coming up. 31 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: I'm more interested in hearing from the State as far as what is the underground oversight that will be provided by the State. I don't believe Kaua`i has inspectors but we'll get that when they come back up. I just want to make one correction as far as the transportation for the kids, that was offered by Mr. Costa, unsolicited. He was very gracious in offering... his office had some funding for the buses, so I just wanted to make that point. It was graciously offered by the Office of Economic Development; we appreciate that tremendously. Thank you Mr. Bulatao. Chair Furfaro: Vice Chair, you have the floor. Ms. Yukimura: Yes, thank you Jose. Mr. Bulatao: Yes. Ms. Yukimura: Since you are... I mean your recounting of your history in Kekaha just makes it so clear that you are the essence of Kekaha and we always appreciate your input and thinking. I wanted to ask, because Ms. Warren isn't here, that you go back and tell her it was really exciting to see the kids engaged in a place based, project based program and they spoke so well. It was very exciting to see that. Regarding your testimony, I feel like there's a real underlying fear concern about what's happening in Kekaha and it's based on the experiences that people have had. I mean I think there's been talk although I don't know if that it's ever been fully documented about the rates of cancer and so forth in Kekaha. Mr. Bulatao: Yes. Ms. Yukimura: And I think some of that is underlying the issues and you said it goes beyond the site, so I kind of wanted to understand better how you think it goes beyond and what kind of efforts perhaps beyond the owner of the mill and just as public officials, what we should be thinking about or looking at. Mr. Bulatao: Yes... we are all responsible for what goes on in terms of contamination. Purely it's simply for those who use Round Up to kill your weeds, for instance. It's a chemical approach of using Round Up to address weed control in your yard, correct? Ms. Yukimura: Yes. Mr. Bulatao: And we have County and State workers who spray pesticides along the roadside that gets into the water system that gets into our ditches, that gets into our ocean. We have the existence of GMO companies... Chair Furfaro: Excuse me. I want to make sure that the Councilmembers know, the item on the agenda is the demolition of the mill... Ms. Yukimura: Yes. Chair Furfaro: ...and building permits and those particulars. The item on the agenda is not pesticides, GMOs, etc. Mr. Bulatao: I'll keep that in mind. 32 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: I'll let you continue to speak, Jose, but I just want to make sure I'm going to have to caution them if they do a response, but you do have the floor. Mr. Bulatao: I understand that and hear what you are referring to. I'll simply close with the statement that there are a variety of factors that add into a contamination concern in the community and that is what I was referring to. Ms. Yukimura: Thank you. I appreciate that. It is something we need to look at and address because you're basically talking about how direct and indirect and intentional and unintentional ways we're just filling our environment with chemicals that may have a real impact on us. Chair Furfaro: And on that note, I will call the Health Department up. Ms. Yukimura: What is the accident that occurred with the release of asbestos? Was that at the mill site? Mr. Bulatao: I beg your pardon? Ms. Yukimura: You mentioned an accident that occurred? Mr. Bulatao: Yes. Ms. Yukimura: That was on the mill site? Mr. Bulatao: Yes, that was at the mill site. Ms. Yukimura: How long ago? Mr. Bulatao: I believe in April or May of last year. Ms. Yukimura: I see, okay. Thank you. Chair Furfaro: I'm going to ask the Health Department to come up first and I've got people in the audience, I want to get through the people that are here first, Glenn, that can answer the questions and you will have an opportunity, I can assure you that. We're going to continue Health Department first. Could you expand a little bit more on some of the concerns that came up on the radar screen from the previous speaker and your role. Mr. Takamura: In light of the Chair's caution and the subject issue, I'm not... Chair Furfaro: Let me pose that question to you, Gerald. We have ownership of the two (2) mills that has to deal with the property that they have and they obviously have gathered several proficiency personnel to deal with permitting and reviews, but has there been a communication from the Kekaha community that might indicate their concerns with other spills that need your 33 COUNCIL MEETING FEBRUARY 15, 2012 attention outside of this mill site? Has that been communicated to you? Associated with sugar. Mr. Takamura: Mr. Chair, yes and that was over another application project basically for the installation of backup generators that was also a concern. Chair Furfaro: So you are in touch with the Kekaha community on those types of issues that they're dealing with? Mr. Takamura: Personally I am not in touch with it, I was present with the public informational meeting specifically for that other project at which time I heard the community concern over the contaminations in Kekaha, yes. Chair Furfaro: Are there notes or minutes or agenda items that you can share with this Council about how that's proceeding? Mr. Takamura: On the project? Chair Furfaro: Yes. Mr. Takamura: Okay. My last update in regards to that project, being that the community was concerned as far as mitigation efforts for that site, primarily what is planned for the development is instead of laying gravel base for the development... Chair Furfaro: Gerald, I want to... is there material available to this Council on that item? I don't want to hear all of the particular parts, I want to know if I wrote you and we can hear about this other... Would you share that with the Council? Mr. Takamura: Okay, in actuality you can request the information from our Hazard Evaluation and Emergency Response office. Yes, that is part of the public information, including all of the information about that specific site, yes. Chair Furfaro: Staff please make a note of my request to receive that information. Members any additional questions? Mr. Rapozo. Mr. Rapozo: Thanks Gerald. I guess I want to go back to the permitting process as far as inspections. Does the State do underground inspections of the demolition permit? Will someone be monitoring the activities of the demolition as the demolition of this mill is being done? Mr. Takamura: If you're pertaining specifically to asbestos? Mr. Rapozo: I'm pertaining to everything. Mr. Takamura: Everything. Mr. Rapozo: I mean there's some concerns, I think the most obvious is the asbestos because everybody knows that the levels of asbestos in that mill are quite high. So that's one (1) question, will somebody be monitoring the 34 COUNCIL MEETING FEBRUARY 15, 2012 removal of the mill site, and as far as the ground contamination I mean that's I think a different issue. But as equipment is brought into the site to remove... the ground will be disturbed and I guess my concern, like the community's, is somebody going to be monitoring that activity? I don't believe the County will be, but it sounds like it comes out of the State Health Department responsibility and that's what I'm hearing today. I'm just curious if that's going to happen and if not then I think the community is going to be concerned and so will I. Mr. Takamura: It's understood. In regards to that, things that are monitored... well I would not say that the Department monitors quote monitor... however, the department does respond to complaints unless there is a special oversight, such example is the asbestos. However, you have to remember that the Department of Health has environmental rules that apply to any project. Primarily what you're indicating is a concern of fugitive dust, not per say that it contains a possible contaminant, but just even fugitive dust leaving the property is regulated. Mr. Rapozo: Right and I think that is the concern that they don't want the asbestos floating around. I think they want to make sure... and you know the intentions of the owner... at the end of the day, it's the contractor that's going to be dismantling the mill, not Lynn or her team. It's going to be a contractor and what I don't want to see is the State come down as a result of a complaint, because as it was referenced earlier, the accident and I would hope that you can share what that accident was that resulted in a fine. I was not aware of that until today. I think and I don't know if it's possible for you to talk about that, but what kind of accident. I mean I didn't think anything was being done there currently, but if there was an accident, then apparently something was being done. Is that something you could talk about today? Chair Furfaro: Actually, before you answer that Mr. Rapozo, I breached a little bit because of the comments that Mr. Bulatao made and I breached a little bit and said that we will be writing you for information and that will be included in the request. I don't want to drift off to those particular things that are going to tie up our controls going forward, but more understanding since it came up as a red flag. We will be writing you for this information and that may become a new agenda item. Mr. Rapozo: I guess the question, and as it pertains to the agenda item, is has any demolition activity started at the Kekaha mill site? Mr. Takamura: Yes there was some demolition occurring prior... Mr. Rapozo: Because I think that's news probably to everybody here, I think. I didn't think it started but we'll definitely... Mr. Takamura: awaiting the permitting process. Mr. Rapozo: permit? Mr. Tamakazu: But that activity was halted and now it's So the demolition was going on without a No, they... sorry for interrupting. 35 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: No, please do. Mr. Tamakazu: There were discrepancies between their removal plan and what they were actually doing and because of the discrepancies it was halted. Mr. Rapozo: And the halt thing was done by the State? Mr. Tamakazu: Yes. Mr. Rapozo: And that was based on a complaint or was that over another inspection? Mr. Tamakazu: Through just the monitoring. Mr. Rapozo: Through the State's monitoring? Mr. Tamakazu: What they would do is check to make sure that they are following their schedule. Mr. Rapozo: Okay, well that is definitely a concern that will require further action I guess by this Council, because I wasn't aware that demolition had occurred. I was under the impression that they were going to start with Lihu`e mill and then do Kekaha, so that's an interesting comment. So basically what happens is if there is a complaint, you'll respond? Mr. Tamakazu: Correct. Mr. Rapozo: Once the demolition occurs? Once the demolition starts to happen? If the neighbors call, somebody will come down to take a look? Mr. Takamura: Actually it's more than that because we've received complaints before in regards to... example is fugitive dust even if there was no demolition that was occurring, vehicular traffic over the area, which some is unimproved, as well as dirt being on the roadways; the community does complain to our office and we do respond. Mr. Rapozo: I guess I worry more because we're dealing with asbestos and all of these toxins that... Mr. Takamura: Councilmember Rapozo, just to make it clear, in specifically with asbestos, there are specific requirements, they do have an asbestos contractor for the removal. There are containment requirements as well in the process. Okay? So as far as releases like that from the containments, well you know that's questionable. Mr. Rapozo: Well regardless of what's the requirements, it's quite clear that after today's meeting that the requirements weren't being followed, hence the halting of the project and hence I guess a fine as was testified by Mr. Bulatao. I guess for me and I don't know how we as a County can be proactive so we don't have to send the hazardous response team because then it's too late, 36 COUNCIL MEETING FEBRUARY 15, 2012 God forbid if something bad happens. I'm just trying to find a way how we can be proactive instead of reactive, but I understand I mean we can only do with what we can do and we appreciate what you guys have to offer, but I think it's going to require some vigilance maybe even by the County because we're here. Maybe it will require some legislative action by this County to empower our Building Division or Planning Department to do inspections, I'm not sure, but I'm not comfortable at all with just waiting for something to happen and then we respond. God only knows what damage can be done, and I rely on you folks, the experts, but I've been involved in enough building renovations, and my God, don't go near it, stay away, we're removing floor tile with asbestos, hey don't go there Foodland, the whole police station, we were cautioned quite severely about the dangers of asbestos, and I look back now and these kids are up here saying that we're worried and I don't know if they want to hear that answer -well if something happens, we'll be there to stop it. Like I said I think we'll follow up more because I'm more interested in learning what happened in the last year especially if it involves a violation of the permit. I think that's quite concerning That's all I have right now, Mr. Chair, thank you. Chair Furfaro: Gentlemen, I will be following up on that; I think that might be a new item. I've been involved with the Royal Hawaiian, the removal of the asbestos in the ceilings, the kitchen floor tiles, the whole bit, but I always remember that periodically the Health Department would make inspections. Mr. Takamura: Yes. Chair Furfaro: Okay, you forgot to say that. Mr. Takamura: Yes, but monitoring per say... Chair Furfaro: You will be monitoring once the permits are issued to the contractor for the approved standard to maintain this controlled environment when asbestos is being removed and so forth. Your department or someone from the Health Department will make periodic inspections, is that correct? Mr. Takamura: Correct. Chair Furfaro: Okay. Do we have any more questions for the Health Department before I bring up Planning? Gentlemen, thank you very much. Please watch for my correspondence. In particular, it was Vice Chair Yukimura that wanted questions for these... Mr. Rapozo: She stepped out. Chair Furfaro: She stepped out. Okay. We're going to take a caption break. There being no objections, the Council recessed at 11:20 a.m. The Council reconvened at 11:37 a.m., and proceeded as follows: Chair Furfaro: Aloha, we are back from our caption break. Gentlemen thank you for coming back to the mike. Mike, I'm going to start with 37 COUNCIL MEETING FEBRUARY 15, 2012 you and I want to make sure that I am hearing this process as we go through these particular things. During the building and the demolition of the mills, we're being informed that the only agencies with jurisdictional authority over environmental cleanup should in fact... is pretty limited. It's the Department of Health and it is the Environmental Protection Agency, is that what I'm hearing today? Mr. Dahilig: That's correct, Chair. Chair Furfaro: And as I just heard the last question asked of the Health Department, they do periodically check when these permits are issued to the contractors for the cleaning. So they do unannounced checks, okay? Mr. Dahilig: That's our understanding. Chair Furfaro: Okay, okay. Additional questions for the Planning Department? You have one? I will give you the floor. Ms. Yukimura: If this question hasn't been asked while I was out of the room, my sense, as you detailed for us the requirements for demolition, was that it's really minimal and I was wondering whether as we amend the CZO, there isn't a need for a more extensive demolition, for example when Coco Palms is finally demolished and especially as Mr. Bulatao mentioned in places like Kekaha where it's right next to residences, it seems inadequate, our permit process. Then it could tie in with... I don't see Mr. Haigh here but I think our Public Works Solid Waste is looking at having some recycling requirements for demolition as well, so all of this seems to put more focus on demolition now than we had in the past, and I wonder whether we shouldn't look at beefing up our requirements or just a better system of dealing with demolitions. Mr. Dahilig: It is an interesting thought, Councilmember, and I think what you are seeing by having different agencies come before the Council regarding their hands in the soup here that this is a multi - jurisdiction type of effort that goes on with respect to demolitions. From the synthesis of the Planning Department and its primary goal, everything flows from this notion of development and construction. We're looking at placing things in accordance to a plan and (inaudible) and certainly there are relevant issues concerning health and safety. Our department, for all transparency sake is charged with health and safety, but we look at it from a standpoint of the periodic long term -how does this house that's going to be built here impact the health and safety in the long term? Certainly cross jurisdictional efforts could be looked at from a better standpoint, I mean I'm sure that's a worthy discussion, but given our slices of pie, we focus on putting things up versus taking things down, with the exception of historic preservation, and that really is our court to play on. Ms. Yukimura: Well, I'm recalling the lectures we heard at the Smart Growth conference which talked about Euclidean zoning having the purpose of keeping out nuisances, and actually, this is right along the lines of that kind of thinking, but couldn't we conceivably make it a Class IV zoning process in the future that brings together all these different pieces like your Class IV zoning process does and includes input from the Department of Health and all of that into one (1) place, maybe we could also streamline the permitting somehow too so that it's not duplicative but bringing it all together to one (1) place and then dealing with it. I know it's a big jump but this issue is raising perhaps the need for it. 38 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Dahilig: And I'll let my planner comment but I do want to say that in the event that development does occur in the mill site in the future, we do become that kind of clearinghouse where issues regarding soil remediation and these types of things do get bundled into the overall terms and conditions of the permit. So we do that from a prospective construction and development standpoint and there is a place for that but given that this is a limited scope of something... taking something that was built down, you know that is a good question you raised. Mr. Hull: That process actually does in fact happen with the demolition permit. The demolition permit is processed via building permit and the building permit has several agencies that have to sign off on that permit, one of which is the Planning Department. The Planning Department reviews all building permits pursuant to the regulations we're tasked with enforcing. Because we're tasked with enforcing construction development, we inherently sign off on all demolition permits, with the exception of those that go before the Historic Preservation Commission. After it goes to the Planning Department, it goes on to other agencies which is the Fire Department, Wastewater Division, Solid Waste which if they have requirements concerning recycling of materials during demolition, it would be mandated at that time, but more in particular the Department of Health is on that checklist. So ultimately, the demolition permit does go to the Department of Health and they have to meet all the requirements of the Department of Health for the respective demolition before DOH signs off on it. That's the process that happens, during the Class IV zoning permit processes. That happens during building permit, but it also happens during zoning permit, and that we submit those to all respective agencies, and DOH among others will comment on it, and we can take those comments into consideration in processing a Class IV. Ms. Yukimura: Well... Mr. Hull: But that's not to say that this process is absent in the demolition process. Ms. Yukimura: Okay that's very helpful to know, but I didn't hear that in the different agencies describing it. I didn't hear that actually the building permit is the coordinating focus and maybe that's just because. I didn't understand, but what you're saying is there is one (1) entity that brings it all together except that a building permit is mandatory... ministerial not discretionary. I don't know if you can address everything in that format and maybe you can? Chair Furfaro: Excuse me, before you go any further... let's make sure we go back and review the playing field here. The first time they were up I just wanted them to give a brief overview for the students. I told them not to leave so that we can now have this discussion, so don't believe that it was overlooked; the reality is that we had to take care of that time. Ms. Yukimura: I see. Chair Furfaro: And I think the point that the Vice Chair is making is a good one for discussion now and that's why we have you back. Thank you Vice Chair. 39 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: Thank you. Mr. Hull: The building permit is a ministerial permit, but I wouldn't go as far to say it's the sole point of focus in that. It's the point of focus with demolition, and the building division is required to submit that out to certain agencies to ensure that in that demolition they've met other agency requirements. As I understand it, the Department of Health will also trigger other permits that are required during say grading or demolition, but it's one way that the County is assured that the Department of Health has been included in the process. But it's not the central focus of all permitting for state, county, or federal guidelines. Ms. Yukimura: Thank you for explaining that. When people discussed it and perhaps because it was an abbreviated discussion, it sounded pretty disjointed and hard to... I mean it just seemed like everybody was doing their own thing and wasn't looking at the big picture and maybe... I mean the only reason I'm asking about this is because we just want to make sure everything's covered and properly done, protecting health and safety that's I think is everybody's bottom line. I just wanted to understand the system so that we can make sure that happens and I don't know if Mr. Haigh wants to say anything as the Head of the Building Division? Chair Furfaro: I'm going to call him back up. Ms. Yukimura: Oh okay. Thank you Chair. Chair Furfaro: And I didn't mean to interrupt but I just wanted to (inaudible) format was to get an overview to the students and their civic purpose. All of you are back now a second time and Building will be called up. Anymore questions for Planning? If not, thank you very much. Mr. Dahilig: Chair Furfaro: Mr. Haigh: of Public Works. Mr. Dill: Thank you Chair. Mr. Dill and Mr. Haigh. Doug Haigh, Building Division, Department And Larry Dill, County Engineer. Chair Furfaro: Thank you very much. Members, we have the Engineering Department back up for more specific questions. Go ahead Mr. Rapozo. Mr. Rapozo: Thank you. Doug, if you can just help me understand the permit, the Department of Public Works Building Division building permit application, there's several that we got copies of as it pertains to the demolition and it's very general, it just says demo building "c ", building "d" and they put the estimate of the value. On the approval of other agencies, I noticed that there's some agencies that did sign and didn't, Wastewater for example, on some of the permits they signed off and on some they haven't. What is the requirement as far as other agencies and these permits? 40 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Haigh: Okay. Our approved procedures for issuing a demolition permit, we send to Planning and Department of Health. Now if other agencies show concern, we will also route them the permits. I believe it was the Lihu`e project where we had Wastewater position signing off and I think because that's a potential sewer property, it may have gone for them to look at. I don't know if it was necessary at the time, but they requested it and we gave it to them. Mr. Rapozo: So what is the actual rule? It's at your discretion who it goes to? I thought it went to every department. Mr. Haigh: It goes to what other agencies as appropriate and so we have them let us know what type of permits they want to see and if they inform us that they don't need to see certain types of permits then in order to expedite the process, we don't send it them. Mr. Rapozo: Because I noticed on these like the Fire Department didn't sign off. Mr. Haigh: That's correct. Mr. Rapozo: Which is kind of interesting, why wouldn't the Fire Department... I don't know... I would think that they should in the event... I mean they should at least be made aware anyway. So that is at your discretion? Mr. Haigh: Well we do it in response to a request from other agencies. Mr. Rapozo: Yeah but... Mr. Haigh: It is not driven by ordinance that we have to send to specific agencies, that is not the ordinance. Mr. Rapozo: Alright, but if the agency is not aware of the project, how will they request to be? Mr. Haigh: Well, they tell us the general type of permits that they want to look at. Mr. Rapozo: And the Fire Department wouldn't be interested in looking at a demolition permit? Mr. Haigh: They have not requested demolition permits in the past. Recently they have added some permits to what they want to review, so we've included them in certain solar permits where in the past we didn't include them, but they've recently just said we really need to look at those. If they request, we put them on the list and make sure they get it. Mr. Rapozo: So you're saying it's not ordinance driven... Mr. Haigh: language in the ordinance. It's not by specific agency, it's general 41 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: Okay, that's interesting. I guess I will want to add a communication to the fire chief asking... because for a demolition project like this, I would think the Fire Department would want to have a say. Chair Furfaro: We'll send that over as a new communication. Doug, it's been more than ten (10) years since I've been on the Planning Commission, but I always thought that when we saw these projects, they went out to all the specific departments from the Planning Department, and then if they had no comment, it just simply came back no comment. Mr. Haigh: That would be a discretionary permit, planning permit. They have certain permits that they do that... they send SMA permits I know on other ones that they sent out to everybody. This is strictly the ministerial building permit. Now if they had an associated planning permit which they said they do and I guess it's up to them whether or not they're going to be sending them out to other agencies for their planning permit. Chair Furfaro: Doug, I only brought that up as how I remember it at Planning versus how you're telling me it exists at Building and so on. Any questions, we have engineering here? Gentlemen, thank you for being present today. On that note, I know that Mr. Mickens wanted to give testimony so you have the floor. Mr. Mickens: Thank you Jay. For the record Glenn Mickens. Beyond the issue of the demolition of the mill which Jose so well addressed, I want to be on record to saying how much I appreciate the teachers in Kekaha for getting their young students involved with the political process of Kaua`i. This mill and everything else that they brought up today, these young children, these kids are Kauai's future and without the efforts of our teachers and leaders, there will be no beginning in this direction. I was extremely impressed by the testimonies of these young children and again I thank our Kekaha teachers for what they have been accomplishing and hope all of our schools follow their lead. I don't think any of you were not impressed with the testimonies of these young kids. Thank you Jay. Chair Furfaro: Any questions for Mr. Mickens? No. Ken? KEN TAYLOR: Chair, members of the Council, my name is Ken Taylor. First of all I just want to say that the property owners of the mills recently some months back had a workshop explaining their process and I think they laid out a process that followed the rules and regulations that exist. My concern is this, it seems like from what I'm hearing today that the Mayor's Office and the Administration and Council has no responsibility for the health and welfare of the people on this island and I'm very disturbed about that. Chair Furfaro: I'm very concerned that you would make that statement, Ken, but go right on ahead. Mr. Taylor: I'm entitled to my feelings. Chair Furfaro: Yes. I'm disturbed that you made that because if we weren't, this item wouldn't be on the agenda today. Go right ahead. 42 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Taylor: From what I'm hearing anyway. I agree with the comment that you all should be much more proactive in following this activity and demanding that there'd be some sort of inspection going on during this process. The Westside especially is inundated not only with this project but with many other activities out there on the Westside, and more recently we're all going to be impacted by smart meters, and I think it's time for the elected officials of this County to take on the responsibility of the ethical and moral obligation to see to it that the health and welfare of the community is first and foremost in anything that we do. We spend a lot of time talking about a lot of different things but for some reason the most important in my mind is the health and wellbeing of especially the young folks that are coming up behind us are being overlooked. I'm just saying I hope that you'll take a very proactive position before this day is over on this item and make sure that somebody is out there while this process is going on because it needs to be the best plans that are put in place, and I say that the property owner is following the rules and regulations that they've been given, but I don't know if they have gone far enough. The rules and regulations don't go far enough in overseeing a project of this magnitude and how it affects the community. I just hope that you'll see to it that a very strong proactive activity will take place. Thank you. Chair Furfaro: I actually want to say that I would appreciate it after the comments that Mr. Taylor made about our kuleana and our moral responsibility, your questions don't stray that way because I'm doing the best that I can to get this thing on the agenda and hearings so please stray away from those kinds of comments. We have a question for you Ken. Ms. Yukimura: Ken, so I was surprised too that there didn't seem to be any systematic inspection process during the demolition, but is this something you think should be required for every demolition or for demolition where hazardous materials are involved? Although that process of abstraction, or what's the other word, because I think there's a way you take care of it onsite or else you remove it. Those processes may happen before the actual demolition of the walls and stuff and so maybe the inspections are... and maybe there are hazardous materials inspections but not demolition inspections. Have you thought about how you think that should work? Mr. Taylor: Well I think it should be part of the planning process and it should be a condition put upon the project to fund, not hire but fund... Ms. Yukimura: That's an interesting idea. Mr. Taylor: ...the inspectors, and if the inspectors should be hired by the County so that... especially when hazardous materials are being dealt with on any project. Whether it's when the actual activity starts to take place, those inspectors should be there. Ms. Yukimura: That's a very interesting idea because hiring to have enough inspectors is quite a burden, and actually Ms. McCrory has taken her own initiative to hire, the owners rep., I guess to watch the process but from a public standpoint, that's an alternative you would think the developer shouldn't have to pay for two (2), an owner's inspector and a public inspector, but some kind of process in the demolition regulatory process. 43 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Taylor: It should be a condition which must be followed in the demolition process, and if it's not put in the approval of the project at the County level then where does it come from? There's something missing here. Ms. Yukimura: Well I mean it sounds like the laws are designed to address liability of landowners and so sometimes that's where it falls. They have an interest in protecting themselves by doing owner inspections but thank you for that dialog; I mean it helps me think through what an appropriate method of regulating demolitions would be. Chair Furfaro: Any other questions? You got a mahalo from Councilwoman Yukimura for your kukakuka... dialog... Anymore members in the audience that wants to speak? No one? Okay, I'll call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Upon motion duly made by Mr. Rapozo, seconded by Mr. Kuali`i, and unanimously carried, C 2012 -51 was received for the record. Chair Furfaro: I will be sending a communication out to the Health Department as well as the Environmental, Protective Agency on the questions that came up so far. Mr. Rapozo, you have the floor. Mr. Rapozo: I actually didn't have a question for Ken so I just waited to come back into session, but the permits do have conditions and it's very general, but it's nonetheless a condition, and it says implement best management practices to prevent damage by dust, sediment, and other pollutants to streams, water, natural areas in the property of others, so that's a condition of the permit and that has to be complied with. The problem is again the owners have no control of what contractors do once the contractor has been hired. They're required to follow the permit, but again, the owners can't be on the site everyday watching the contractor, and I think that's why we have oversight by I would assume the government. I would assume the State would be the proper agency to make sure that in fact the best management practices are being followed. I mean you cannot expect the owner to be there, they hired the contractor, they pay, they have insurance and all these things, but if the contractor decides hey I'm going to pick up a few days here and try to rush, unless there's some kind of oversight it will go unnoticed until something happens, until a problem occurs. Only then the State gets notified, the State comes down and does an inspection, and then oops and then they fine the owner. I'll be looking into some legislative remedy as far as what we can do. Number one (1) I think the building permit application should go to all agencies that's number one (1). If that's not clear in the Building Code, I'll definitely be looking at amending that. I believe like you, Mr. Chair, it's very simple to say no comment if it's an issue that doesn't relate to that specific agency, no comment, done. Again, I'm troubled that the Fire Department was not even able to comment on the demolition permit because there may be some Fire Department remedies, some Fire Department concerns for fires, and they're not even signed off on this permit. That concerns me. I don't think it should be on a case by case basis; I think it needs to be every demolition project permit goes out to every single agency, and if they have a comment, they can put it on the permit. Other than that, I think today's discussion was helpful. I think it's quite clear now that we've clarified the fact that it's pretty unclear as to whose responsibility it is. I think we 44 COUNCIL MEETING FEBRUARY 15, 2012 as the legislators here locally need to work on legislation that will make it clear that in fact somebody on our turf here on Kaua`i, because I don't believe the State has any personnel here that are available to do inspections. I just don't think they have the resources. I'm not talking about every demolition, if you want to demolish your chicken coop or your dog house, there's no known toxins, I mean that's a different story. But when we're going to demolish a mill that's been in operation for decades and there are known toxins in that site, then I think it should fall under a separate type of permitting that I think we can control here on the Council simply by amending the Code, so that is what I'll be working on. I would expect something to be ready in the next three (3) months or so. Thank you Mr. Chair. Ms. Yukimura: I just want to respond to Councilmember Rapozo's good framing of the issues. The other addition here, though, is the fact that Ms. McCrory has hired an owner's rep that is a person who would be on -site, to make sure that the contractor does best practices so that she doesn't get fined. Actually, it's one of the ways of contracting with the owner's rep, they pay the fine if they miss that... you know if a liability does come out. So there is this sort of self - enforcing process that is available and we should actually study how and whether it works because it then doesn't require heavy cost or inspector cost and regulatory cost upon the County or the government. If the liability laws are properly written so that it's clear that the owners are liable and then we require an owner's rep or something to protect the owner, actually, his or her interest gets a rep to protect against that liability, that may actually solve the problem without additional government. Mr. Chang: Chairman, thank you for getting this on the agenda and getting all the proper agencies here to speak with us. I also want to thank Councilmember Rapozo for your field trip out on the Westside and along with our Economic Development George Costa for providing transportation. I wanted to say the children and teachers aren't here, but I appreciate the testimonies, I know that all of them did have testimonies, but I want to first of all commend the teachers and the students. I don't think the viewing audience could see but they read very articulating, they were very good. I can tell you from watching that they were reading, but they were looking at us. It's hard enough to be here without being nervous, but to be able to look and address, I wanted to comment on that. I want to thank Lynn McCrory for your testimony here also. I do want to say, as Councilmember Yukimura had mentioned in addition to the contractors, we do have hired eyes and ears and many if not all of whom are here and you know the importance of our community and I appreciate that you will be conducting monthly meetings. We, as Mr. Bulatao said, we're addressing the Kekaha, the fourth largest community, but in addition we also have the Lihu`e Mill which is in the hub of Lihu`e, our business district. Up and down Haleko Road is a very well traveled road, along with this new four (4) way lane that we're going to have, so there's a lot of concern with that too and so we want to thank the consultants, those that are here and every factor. We got asbestos people, we got people with the extra eyes and ears, and you folks heard it right here in our Chambers and you know the concerns that we have and this could be a model as to many of the other plantations and the mills that are going around throughout the State. Heaven knows, if the owners didn't buy it, what would happen if we just let that sit longer and longer and longer. So I do commend that and going outside of the box and taking every precaution and also informing the community that this is not taken lightly, this is taken extremely serious because as Mr. Taylor said that health and safety is the biggest issue for the residents, as evidenced by the children here of Kekaha 45 COUNCIL MEETING FEBRUARY. 15, 2012 Elementary School. Thank you very much Mr. Chair, Mr. Rapozo and the Council. Thank you. Mr. Kuali`i: Just very briefly, I do notice on the bulk of these permits, the permits for Kekaha have an issuance date of January 31, 2012 now... we're going to get more information, we want to hear about the accident right? And it sounds like that accident happened in the Fall or November or sometime prior to the issuance date. If the County is issuing the permit, then no activity should happen before the issuing of the permit. The County has a role too here, even though it's the Department of Health and what have you, but at the bottom of these permits where it has inspection type, building final, approve, disapprove... obviously that's all empty at this point because that's only meant to be an inspection at the end that the building has been clearly demolished, but maybe there needs to be an inspection at the beginning and in the middle if not more. But the County plays a role in this process as well, because clearly it sounds like something started before the permits were issued and we're going to hear more about that accident, but process -wise and Councilmember Rapozo talked about it and Councilmember Yukimura, I think we do have to make sure that legislatively we're putting a process in place that protects citizens. That's all I'll say at this point. Thank you. Chair Furfaro: Thank you. Anymore comments before I summarize? No. First of all I think we had a very good day today about discussion. I know that there's some bold comments over here about us getting more and more involved, which will lead to more and more agency needs for Kaua`i County. I mean we don't have a Health Department, we don't have an Ag Department. In fact, three (3) years ago when Mr. Rapozo was on the Council, we wanted something done with a difficult situation with some of the fields in agricultural pieces out by the school in Kekaha. We don't have that expertise currently on our staff, so what did we do? We took responsibility by authorizing for the County to spend seventy - five thousand dollars, contribution to the State, administered by Economic Development Office for the purpose of doing the air testing. Three (3) years later, no report to us from the State, and what I'm saying is that it's getting to the point that we need to hold some of these other political subdivisions accountable for things rather than try and redesign the parameters. We don't have people with the health background here and then there's certain liability laws that I assume the County will assume if we're now going to be the point agency for these things. So it may sound like a way to fix it but it's more long term. What we need to do is we need to make sure that within the jurisdictions we have now, we follow the systematic procedures that are allowed and we hold people accountable and I think that's important with these State Department of Health and the Environmental Protection Agency. My compliments go out to the ownership for their gathering five (5) experts in the back. That's what they exactly are, five (5) experts. I don't think we have one (1) person in either Planning or the Building Division right now that brings that type of expertise, so it gets hired out by the applicant. On that note, I will be sending correspondence to the Health Department and to the Environmental Protection Agency and this may resurface as an item later. We have a motion to receive, and we had a great audience with the children here today. Lynn, I may point out to you, we look forward for the Kekaha community to have regular monthly briefings when the process starts and thank you for committing to that. The motion to receive C 2012 -51 for the record was then put, and unanimously carried. 46 COUNCIL MEETING FEBRUARY 15, 2012 There being no objections, the Council recessed at 12:15 p.m. The Council reconvened at 2:15 p.m., and proceeded as follows: There being no objections, C 2012 -49 was taken out of order. C 2012 -49 Communication (1/27/2012) from the County Auditor, transmitting for Council information the Follow -up Audit of the County of Kaua`i Building Division, Department of Public Works. Chair Furfaro: (inaudible) Mr. Heu make a presentation because he has a time - sensitive item that he has to attend to and then we'll go right into the Audit. Mr. Heu's overview will be about the audit. What I'm going to do is I'm going to make another request, seems like the County Attorney wanted to have an attorney here during the easement hearing, he's committed to another place and so I'm just going to make a general comment. I would like it to be taken for what it's offered for, the Council meets on Wednesday, we need to make sure that people clear their schedule for any part of the day because I'm getting up to three (3) and four (4) requests a meeting for specific times for various people. Here's my general comment, the specific time is Wednesday. And so I'm sorry I'm going to be refraining from honoring that request that just came over by phone, and we have other county attorneys that are here that are available for that. Could you read the claim item please? There being no objections, C 2012 -54 was taken out of order. LEGAL DOCUMENT: C 2012 -54 Request from the Office of the County Attorney for approval of the Grant of Pedestrian Access Easement and Cancellation of Portion of Easement 16, made by and between Kaua'i Lagoons LLC, a Hawai'i limited liability company, and Mori Golf (Kaua'i), LLC, a Delaware limited liability company, and the County of Kaua'i, concerning property identified and being further described as Tax Map Key Nos. (4) 3 -5- 01:27, 172, 173, and 174. • Grant of Pedestrian Access Easement and Cancellation of Portion of Easement 16 Chair Furfaro: Thank you very much and on that note, I believe we have two (2) representatives from the ownership here, I would like to call you up. Before I go forth, I'm going to recognize Councilmember Nakamura. Ms. Nakamura: Thank you Chair. At this time I want to recuse myself from this matter because my husband prepared the legal documents for this item. Ms. Nakamura was noted as recused from this item. Mr. Bynum moved to approve C 2012 -54, seconded by Mr. Kuali`i. There being no objections, the rules were suspended. 47 COUNCIL MEETING FEBRUARY 15, 2012 GALEN NAKAMURA: Good afternoon Council Chair, Councilmembers. Thank you for hearing us today, my name is Galen Nakamura. With me is Mr. Timothy Tansey, developer's representative, from the Marriot and Kaua`i Lagoons and Mori Golf. Chair Furfaro: I'm going to let either Timothy or yourself give us a general overview on this legal item as you're representing the Marriott Corporation. Mr. Nakamura: This is a condition that was part of a rezoning, ordinance that was done fairly some time ago, but the condition of the ordinance was that the development grant a pedestrian easement to (inaudible) the Running Waters area of this coastline and it's taken a while, but we finally have the easement alignment set and (inaudible) on the map. The path was confirmed by the Planning Department via a site visit the Planning Department conducted with the developer, and that was when Mr. Costa was the developer. The document speaks for itself. There's a map that's attached to the easement documents which Councilmembers can see; the alignment of the easement basically follows the adjacent path. Chair Furfaro: So what we're looking for is a motion to approve this grant for pedestrian right -of -way, and I'll let Mr. Bynum have the floor. Mr. Bynum, you have the floor. Mr. Bynum: I just want to confirm. My understanding is this is in essence that realignment of the easement and so we're giving one (1) easement back and we're getting another one (1). It's in the same vicinity but it fits better with your development plans, correct? that? TIMOTHY TANSEY: That is correct. Mr. Bynum: So I have no objection and for me personally this just kokua, just working together to come up with the same purpose. Thank you. Chair Furfaro: Any other questions regarding this grant of pedestrian easement that will replace and cancel the original one. Mr. Rapozo and then Vice Chair Yukimura. Mr. Rapozo: Thank you and thanks for being here. It's hard for me to visualize with the map that's provided. Easement 16, I'm trying to figure out on this map, if you can help me... top, middle, bottom? I see all the easement SA2, SA1, B... SA3... I don't know where SA or Easement 16 is at. Mr. Nakamura: On the bottom righthand of the document there's a rectangular portion of the map and then if you... Chair Furfaro: Excuse me Mr. Nakamura. Mr. Nakamura: Yes. Chair Furfaro: If we put your map on our screen, can we do 48 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Nakamura: Sure. Mr. Rapozo: Mr. Chair, while they're setting up, if I can ask a few questions? Chair Furfaro: Mr. Nakamura is there and so you can direct it at Tim. Mr. Rapozo: Easement number sixteen (16) is going to be canceled, and which easements are we acquiring? Mr. Tansey: The easement SA -1 -B which is up towards the left hand side, near lot 9A. Mr. Rapozo: Okay, I see. Chair Furfaro: Vice Chair Yukimura, I'm going to give you the lead while I sit in the audience. Mr. Tansey: So the first one is right there, easement SA- 1 -B. Mr. Rapozo: Okay, that's what we're acquiring? Mr. Tansey: Yes. Mr. Rapozo: Okay. And which one are we... Mr. Tansey: What it is it's the realignments because there's two (2) means of public access to the shoreline. Ms. Yukimura: Can you orient us as to what buildings are where, what we're looking at? Mr. Tansey: The (inaudible) buildings that sit up here by Fashion Landing are down on this side. Pali Kai would be up along this side, out of the picture frame. The harbor and Pali Kai are up on the top of the map, Fashion Landing or Kalanipu would be down towards the bottom. The ocean again here and then the new golf course runs along, below the lots. Mr. Rapozo: Where is Running Waters? Mr. Tansey: It's... can you move the map up a little bit. Right there. Mr. Rapozo: How do we get there now, I guess is the question. How does the public access... Mr. Tansey: There's two (2) means. They can come from Pule Kai along the Lagoon and underneath the old Inn on the Cliffs. And enter the State land right by the new (inaudible) fifteen (15) greens. 49 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: I don't know where that is, but I know the Inn on the Cliffs and... Mr. Tansey: Okay. So that's one (1) means. Mr. Rapozo: Okay. The most common means, the one that is near to Running Waters I guess is the one... Mr. Tansey: Okay, pull the map back up a little. The Running Waters would be here, Fashion Landing is sitting here at lot 10A. The public parking and parking lot is over here to the lower righthand corner, so they walk down the path here underneath where Whaler's Restaurant is, and then the path runs along here and then out along the golf course. It's a concrete paved path out toward where the new shelter is. There's a public shelter here and then one over here where the other easement is right there. There are two (2) public shelters that now exist along the shoreline which was part of the SMA requirements. Mr. Rapozo: Okay, so easement 16, the one that's going to be canceled is... Mr. Tansey: Mr. Rapozo: public? It's part of this right through here. So that access will be taken away from the Mr. Tansey: No, no, no... it's just a realignment because when the golf course was changed there and the grades... we had to realign the old path or create the new path which then gave the new easement. So there's still access from the parking lot all the way along and into to where the public shelter is and then down to Running Waters beach. So yes, there is still an easement that goes all the way to the parking lot, to the beach, or the State land. Mr. Rapozo: But you said the replacement easement is up one SA -1 -B? Mr. Tansey: Well there are four (4) easements shown in this document. The one I pointed before runs from Pali Kai and that's right... you can see the centerline easement is ten (10) foot wide. Mr. Rapozo: Yes. Mr. Tansey: Okay, runs through there. Basically runs along the land here and then to the where the State land is. The second easement is from the State land to the public shelter which has the restroom in it which was required by the SMA, and then if you could pull the map up... there's a small section here being SA3 and then the final one is SA4 which runs along here and up to the area where the parking lot is. The portion that's being canceled is just a portion that now does not run where the existing path does. It was based on the old grades out there prior to the golf course renovations that were done. Mr. Rapozo: Clear as mud. Councilmember Yukimura, I don't know if this is time sensitive but I would really want to have an opportunity to go down and take a look over there. It's not that I don't trust anybody, but I just 50 COUNCIL MEETING FEBRUARY 15, 2012 want to make sure that it's... I just want to make sure that we're not losing any access to the beach. Ms. Yukimura: I totally share your feelings, so I too will actually be wanting a deferral. I hope it's not time sensitive. Councilmember Bynum. Chair Furfaro: I'll take the meeting back now. Ms. Yukimura: Alright, go right ahead Chair. Chair Furfaro: Councilmember Bynum, go ahead. Mr. Bynum: I don't know the time sensitive question but it still is contiguous along this coastline? Mr. Tansey: Yes. Mr. Bynum: And some of it are on property that you're granting easements, others are on State property. Mr. Tansey: Mr. Bynum: this entire area? Mr. Bynum: already in? Mr. Tansey: Mr. Bynum: That is correct. But eventually one will be able to traverse Mr. Tansey: That is correct. Our easement goes to the State conservation land where our property line ends. And right now there is this path that's That is correct. Is it in a State land area? Mr. Tansey: No. It just goes to the State land and then it's a natural path which has always been. Mr. Bynum: But eventually it may be part of the overall bike trail system? Mr. Tansey: I can't answer that. Mr. Bynum: Thank you. Chair Furfaro: Councilmember Kuali`i. Mr. Kuali`i: Aloha and mahalo. Just looking at the map, I think what you said was that the existing path that runs below the restaurant that was there, the concrete path, so you come from the parking lot right? And on this map it has this portion of the easement is to be canceled, so it's a piece of that 51 COUNCIL MEETING FEBRUARY 15, 2012 path. So when you walk on that path now, does it just end or does it continue with a slightly different alignment and so it's still contiguous? Mr. Tansey: It's a slightly different alignment. Mr. Kuali`i: Because the map doesn't show it. Mr. Nakamura: Actually the map does show on the bottom, if you go on the bottom... Mr. Kuali`i: Can you point to it with the pointer? Mr. Nakamura: The (inaudible) block area is the canceled easement, portion sixteen (16) and that area right there is the new easement. Mr. Tansey: That is correct. Mr. Kuali`i: So the dotted line is the new path and the solid line is the old path, or vice versa? Mr. Tansey: It's reverse. The dotted line would be the canceled portion, the single solid line would be the new easement. Mr. Kuali`i: So in fact where it says the portion of the easement to be canceled, the change is happening further up where you see the two (2) lines separate from each other. One is the old and one is the new? Mr. Tansey: That is correct. Mr. Kuali`i: I think that's what the confusion is. But if it continues, it's basically just veering five (5) or ten (10) feet but still connecting? Mr. Tansey: Right, it used to go up a steeper grade and now we changed it so that it's more gradual and it follows the golf cart path. Mr. Kuali`i: Right. Mr. Tansey: And it's a concrete paved path versus what I believe before was just a natural path. In fact Exhibit "E" of the document gives the actual metes and bounds description, and if you look at the longitude and latitude points, they actually match up to the actual map itself. So you can follow it to show that it goes from where the shelter is, all the way up to where the Fashion Landing parking lot is. Mr. Kuali`i: I've been there many times. My brother and nephews, they all body surf down at Running Waters. Mr. Tansey: It gets a lot of use. Mr. Kuali`i: Yes, it has a lot of use and if it's only veering slightly and they still have pretty much that direct path, then I don't really see a problem with it. 52 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Tansey: I think it's actually a better path than what it was. The old path I think the kids cut across as opposed to following the easements, so this one, because it's a concrete path, it provides the proper route for it. Mr. Kuali`i: There were reports that the people didn't necessarily stay on the path too, even though we did avoid the green that's over there. Thank you very much. Mr. Tansey: Chair Furfaro: Ms. Yukimura: it wait another two (2) weeks? Exactly. Mr. Chang. Mr. Chang: Thank you Chair. You were mentioning because we're going to defer it, I guess. Chair Furfaro: No, let's make sure... we have a motion on the table to approve. A deferral would supersede that motion, but that deferral needs four (4) votes. If we have four (4) votes on the original motion, we can take that motion. Mr. Chang: I was just going to suggest, when you talk about Fashion Landing, maybe they don't know that term " Fashion Landing," so we could post a couple of golf carts on the Fashion Landing old Sharkies side or perhaps where the wedding... the starter deal... then we can go out that way then we will pass every single step of the way that you're talking about from the golf pro - shop on the different easements that we're talking about. Because unless you golf, you don't know which of the fifteenth hole... Mr. Tansey: That's probably true. Mr. Chang: When you're talking about these different... Councilmember Yukimura, we walked out there, that path but if you don't know where... In fact it can throw you off with Fashion Landing and all these other old terms of the past but that might be a great suggestion. We can get on that golf cart, the one they tour with the six (6) seat or what have you, so we can take a ride out there. That might be the best way to visualize because that's kind of tough to read. Chair Furfaro: Vice Chair Yukimura. Is there a real urgency to approve this or can Mr. Tansey: I mean it can wait another two (2) weeks. We prefer that it's approved. Ms. Yukimura: I would really just like to walk it, if that's possible. And I think both Councilmember Rapozo and my concern is that we have many of times approved a map, whether it's been an attachment to a zoning or whatever, and in real life it goes over a cliff and is quite impassible, so it just helps us to see it on the land. I want to, at the same time, acknowledge the wonderful circumstances that are bringing this together to create public access to this 53 COUNCIL MEETING FEBRUARY 15, 2012 beautiful coastline in a way that's compatible with the development because it's just a key piece of our life here on the island. It can really help to build harmony, I think, in the relationships on this island. I really appreciate the Marriott's cooperation and work on this. It's really a wonderful way to have tourism co -exist with people who live here. Chair Furfaro: On that note, members, I want to recap so that we don't lose Mr. Heu on another item. You do not have a problem if there's a motion made that supersedes the previous motion to defer and that deferral gets four (4) votes. My question is though from now until those two (2) weeks, who will arrange with my office a tour of that site for those who want to see it? Mr. Nakamura: Our office can coordinate that with you, Mr. Chair. Chair Furfaro: Okay. I will raise the question about the posting as we get more than two (2) Councilmembers together, we need to make a public notice. Members, to move on here, I would like to know if there is a motion for a deferral that gets enough votes to supersede the motion of approval that was introduced earlier. Ms. Yukimura: Mr. Chair before the motion? Chair Furfaro: Go ahead. Ms. Yukimura: It's also possible to do it two (2) at a time if you want in order not to post if timelines are difficult in two (2) weeks to get everyone together in one (1) schedule. Just so that there's options and I'm not saying one (1) or the other is better, it's just how to do it and how many people. It may just be myself and Mr. Rapozo, in which case we don't have to post. Chair Furfaro: And some of us that are body surfers say we don't need to go and visit the break unless we bring our trunks and fins. Do I see anybody in the audience that wants to testify on this before we make any attempt to defer this for a site inspection? No one? Okay members. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura moved to defer C 2012 -54, seconded by Mr. Rapozo, and carried by the following vote: FOR DEFERRAL: AGAINST DEFERRAL: EXCUSED & NOT VOTING: RECUSED & NOT VOTING: Bynum, Chang, Kuali`i, Rapozo Yukimura, Furfaro None None Nakamura TOTAL — 6, TOTAL — 0, TOTAL — 0, TOTAL — 1. Chair Furfaro: Mr. Nakamura, can you be in touch with my office on how we arrange this. I would like to get it back on the agenda in two (2) weeks. Thank you very much. My commentary was to go to the Audit but before we do, we're going to let Mr. Heu have an opportunity to testify. 54 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Nakamure was noted present in the meeting. There being no objections, C 2012 -49 was taken out of order. C 2012 -49 Communication (1/27/2012) from the County Auditor, transmitting for Council information the Follow -up Audit of the County of Kaua`i Building Division, Department of Public Works. There being no objections, the rules were suspended. GARY HEU, MANAGING DIRECTOR: Thank you Chair. For the record Gary Heu, Managing Director. The agenda item regards the audit of the Building Division and I want to say thank you very much Chair Furfaro and to the County Auditor for allowing me to kind of cut in line and just make a few statements before they get into the meat of the agenda item. What I wanted to do is first of all say that I think this is the second time that we will be before this Council to discuss some audit that was conducted by the County Auditor's Office. As we continue to go through these audits, I'm sure that on both sides of the court will get better and more efficient at how we deal with them. I want to say from the Administration's perspective we take these audits very seriously, we think they serve a valuable purpose in terms of evaluating and assessing operations and providing opportunities for learning and improvement within the organization. The reason that I asked if I might be able to say a few things before we got into the actual audit results were that there's been some discussion and I think it was also mentioned in a newspaper article that the Administration did not provide a response to the draft audit. I wanted to have that discussion upfront so that it wouldn't get intertwined in the actual presentation of the audit results, as well as the subsequent discussion by Public Works. We have responded to audit inquiries and we also provided responses to the draft audit on the energy recommendations of the Cost Control Commission. I wasn't necessarily pleased with some of our responses to that first audit response and so with an abundance of caution, I worked closely with the Public Works Department Building Division on the responses for this particular audit. In fact, I believe we were on either our third or fourth iteration of a response. At some point in time we lost track of it and we did not get the response over to the County Auditor in time for them to print and publish the report. I'm here to take full responsibility for the fact that there was no formal Administration response to the draft audit report. That doesn't mean that there was no response, because like I said, probably over the course of five (5) months or so, we went through a number of different iterations, it's just that we did not in a timely matter transmit that response to the County Auditor, so it was not considered in their report. Again, I take full responsibility for that. I just wanted to kind of lay that out there so that we can clear that issue and you can really focus on discussion that's going to follow which is the results of that audit and then the subsequent discussion with Public Works. I'm more than happy to answer any questions relative to that non - response at this point in time. Chair Furfaro: Well Gary, I thank you for coming up and sharing that overview with us, and I also have to take a little responsibility and I'll share this with you, the members now have a communication that was in response to an email that I sent. The reality is and for some of the new members here, before 55 COUNCIL MEETING FEBRUARY 15, 2012 we had an Audit Department, we had an Audit Committee and it was made up of three (3) members. That Audit Committee was Chaired by myself as Finance Chair, Jimmy Tokioka as the Vice Chair, and Kaipo Asing. I have some of those earlier questions going back to 2005 available with Scott when we got the first draft and that will certainly be made available to any member here that would like to look at that draft but I think we're going through a bit of transition here from our old process of the Finance Chairman being the head of the Audit Committee without having an Audit Department which we now have and so I'll just leave it at that. Mr. Heu: Again, I think as we work our way through subsequent audits and we get better at process, hopefully we can become more efficient in how we deal with one another. From my understanding and certainly in an offline discussion or informal discussion, the Auditor can speak to this with any member, but I would like to think specifically in dealing with Public Works that I hope that the Auditor's Office has found them to be very open and cooperative. I know at times there are numerous audits in different phases taking place as we speak, and I know sometimes scheduling becomes a problem and we do our best to try to accommodate schedules, and the County Auditor's Office has been very accommodating in trying to meet our schedules also. Again, I think my hope would be that we continue in this process that we'll get better at it in terms of our ability to respond in a timely matter. Chair Furfaro: Thank you. Any questions for Mr. Heu? Go right ahead. Ms. Nakamura: Thank you for being here, Gary, and to explain why there's a missing piece in this final audit. I think we spend so much resources doing these audits, not with just our Auditor's Office that has a million dollar budget attached to it, but they hire outside consultants to assist them with these audits. The final audit should be a compilation of each set of the way and the process and the response. To me this is an incomplete final audit because it doesn't include the Administration's response, and I think more importantly the discussion about the constructive criticism coming out of the audit, and then how you feel it's possible to respond to that constructive criticism given the resources at your disposal. It just seems like this is not a good way to proceed and I'm hoping that there will be better processes in place, whether it's verbal reminders. I know they set deadlines, but when there isn't a response, what's the system that's going to be set up between the Administration's and the Auditor's Office to prevent this from happening again? Because to me, this is an incomplete audit because it doesn't have that final stage of resolution of how we then move forward as a County. I guess my question is do you now have a response to this audit? Mr. Heu: Well like I said, probably the response was initiated maybe five (5) months ago or so. We've had different versions of the response and now we have a final version that I think has been transmitted to this body. Chair Furfaro: It was just given to us today. Mr. Bynum: Today. 56 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Heu: And so in answer to the question, yes, that would be our final response, and although yes, you may view that document as an incomplete document and technically that's probably right, I think there's still the opportunity for the learning to take place, for the discussion to take place, even if it's not formalized in the report. Ms. Nakamura: Well, what would be useful is a written addendum to this report once we clarify where we're going to go from here. I think that would be really useful, at least for me. Mr. Heu: I think that's probably of the discretion at the County Auditor and if he's open to accepting an addendum, and based on possible additional discussions and the results of the response that we provided, I think that would be fine with us. Ms. Nakamura: Thank you. Chair Furfaro: Mr. Bynum. Mr. Bynum: The Auditor's have the response now right? Chair Furfaro: No. LARRY DILL, COUNTY ENGINEER: It was transmitted at the same timeframe of Council (inaudible). Chair Furfaro: Larry, you cannot speak from the back of the room. You're welcome to come up to the microphone. Mr. Heu: I think the short answer is yes, it was transmitted at the same time that it was transmitted to the Council. Mr. Bynum: Today? But they've been here, so they probably don't have it. Chair Furfaro: And I don't read that fast. Mr. Bynum: And so my understanding is that the draft was made available in August right? Mr. Heu: Somewhere in that timeframe. Mr. Bynum: And typically the Administration would be given a couple of weeks to respond. Is that the expectation -is in a couple of weeks, is that correct? Mr. Heu: It might be more than that. Mr. Bynum: Okay, but you're free to communicate with the Auditor and say we need more time right? 57 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Heu: I think some of that back and forth did take place initially. The Auditor's Office was more than generous with the time allotted, and there's no discussion or dispute about that. Mr. Bynum: I'm glad you're coming up here and addressing this because it's just we have invested a lot of time and energy and resources and a County. The voters approved for us to have an Audit Department and I hope we all want that to be a meaningful process that improves the delivery of services of people. Not responding calls question in my mind how seriously the Administration... you got to deal with the intrusion or whatever you want to call it. Dealing with the Audit is uncomfortable with people asking you questions, but I think most of your staff sincerely wants to hear the feedback and be able to respond to it when a public document comes out. What I'm hearing, Gary, is this won't happen again? Mr. Heu: We will do everything within our power to respond in a timely matter. I'm not going to debate the issue with you, Councilmember; this is unfortunate. I don't like the final result any more than you do in terms of the non - response, and like I said, I take full responsibility for that. Mr. Bynum: Chair Furfaro: Okay, thank you. Mr. Rapozo. Mr. Rapozo: Thank you Gary. I feel much better now. I just want to know and I want to make sure, because things will happen and it may extend time limits or whatever, but I need to know for myself that the Administration is not treating an audit done by our internal Auditor, with any less priority than we do with the financial audit; it should be the same. I cannot imagine us responding to the financial audit every year. I would expect that same kind of responsibility from the Administration when our auditors are doing an audit. Obviously, if life gets in the way and we need an extension, obviously we'll address it at that point. But I don't think we should be looking at an audit that's being conducted by the internal auditor on Public Works or wherever you may be auditing and the financial audit differently. I think it's Charter mandated; it's a requirement. I think that your departments got to respond accordingly and it's unfortunate that this occurred, but it is what it is and we'll address it and we'll deal with it. I do agree with Councilmember Nakamura that an addendum should be attached because no audit is complete unless it's complete. I just want to be assured that the Administration is going to look at our audits, the internal audits by the Auditor's Office, with the same priority as they do with the financial audit. I need that assurance from you, is what I'm saying. Mr. Heu: Again, like I said when I started, we take these audits seriously. We are dealing with many more audits in a given year than we previously had before there was an Office of the Auditor, so again we need to make adjustments in terms of how we deploy our resources and how we prioritize our work, and like I said, hopefully we'll get better at that. This was unfortunate and certainly should be seen in no way, shape, or form as something that was calculated or an intentional gesture to disregard the importance of the audit request. 58 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: And not for a second would I think it was calculated or malicious; I think maybe oversight for whatever reason -I got all these things to do, I'll get to it tomorrow... I mean it happens in everybody's life, but I just want to make sure that we get the assurance and the priority to address the audits. If it's to that point, Gary, where it's very burdensome on your Administration and department heads, I guess communication to the Chair would be warranted so that obviously if you're getting too many requests, too many interviewing your workers and it's disrupting your operation, then I think the Chair should know. Because I'm not familiar with the workload, I don't know what the caseload is right now, but I think from what I heard anyway, was there was lots of opportunities to meet the deadlines that was set forth and it was never met. Mr. Heu: Like I said, the Auditor's Office has been nothing but accommodating. Mr. Rapozo: Thank you. Chair Furfaro: Anymore questions for Mr. Heu? Gary, thank you for being here. Later when we have an opportunity and prior to us having an Audit Department, I'll be distributing and I'll give you a copy of the December 28, 2008 draft report that I responded to but unfortunately never got on the agenda. Mr. Heu: Okay. Chair Furfaro: I'm going to give a copy to you, as well as I'm going to give all the members here. Mr. Heu: Chair, again I thank you very much for giving me this opportunity, and I really hope that the members can now focus in on the real issue of what the audit has to say and then the subsequent discussion with Public Works. Chair Furfaro: Go ahead Councilwoman Nakamura. Ms. Nakamura: Gary, one of the key audit findings is that the Building Division has a significant nineteen percent vacancy rate; since the last audit was done has lost an equivalent of one hundred and sixteen years of County experience within the Building Division. I was just wondering about that. It's highlighted as one of the key concerns about this division, and I was wondering what your thoughts and strategies are to address this critical deficiencies. Mr. Heu: Not that I'm going to dodge the question but I'm going to leave the more specific discussion to the County Engineer and the Building Division Manager because again they're in the best position to discuss it. I can tell you that it is a concern and it is a concern that we have, not only within the Building Division, but there are a number of different operations within the County that are facing similar kinds of situations, either already in it, or we can see it on the horizon. We have been in some discussions as particularly as we prepare to come before you with a budget submittal for next fiscal year talking about how it is that we can address some of those issues. Some of it would be linked to perhaps budget provisos which permit for some transition types of activities so that prior to being in a situation where we have all that experience walking out the door, that we 59 COUNCIL MEETING FEBRUARY 15, 2012 can actually fund transition activities. So we're still working on that, we're developing that, we're in discussion but those are things we're looking at proposing in the budget process. Ms. Nakamura: Okay because I've been thinking along the same lines too and having some discussions about the need to have flexibility through budget provisos that allow for temporary positions with varying degrees of length of time based on the complexity of the job and the need to train for those positions. I look forward to your recommendations. Mr. Heu: Thank you. Chair Furfaro: Gary, along those lines, the Council has started this last year on developing a continuity report internally, it's not ready for the whole Council but we're working on it. I think Councilmember Nakamura is talking about some kind of succession planning... Mr. Heu: Absolutely. Chair Furfaro: ...for the Administration. I do want to double check, though, even though the Auditor reported all these people gone, Doug Haigh is still here. Mr. Heu: He was this morning. Chair Furfaro: Very good and this is his project as the Building Division. So I think Councilmember Nakamura brings up a mutual concern that either we have like we're developing a continuity plan, you should be developing a succession planning and some money should be available like in the Building Department and so forth. When somebody retires, they've got a little bit of time to spend with the person they're replacing, I got to pass that history on. Thank you very much, Gary. Mr. Heu: Thank you folks very much. Chair Furfaro: To the Auditors, I'm going to call you up first, we're going to talk about your audit. We got Engineering and the Building Division in the audience. ERNESTO G. PASION, COUNTY AUDITOR: Good afternoon Council Chair Furfaro and Honorable Councilmembers. For the record, Ernesto G. Pasion. With me this afternoon is the assigned auditor for this follow -up audit of the Kilauea Gym audit, Lani Nakazawa, and we have our consultant on Public Works. We have three (3) audits on Public Works and we had the follow -up of the Kilauea Gym. We also have the Roads Maintenance audit and we also have the Kaiakea Fire Station. We have Mr. Perry Manthos of the Manthos Engineering in Honolulu this afternoon to provide some information about the audit. I want to call on Lani and Perry to come forward. Chair Furfaro: Before we do, Mr. Pasion, I do want to say there are some parallels in your report that I must commend Mr. Dill and the fact that Doug too has been working on it and that's about creating some of these standard reflections. Although today's discussion is about Building, I want to make 60 COUNCIL MEETING FEBRUARY 15, 2012 note that we have had an opportunity to really at this point agree on some standards for roads with the AASHTO standard for roads, and I think the feedback you gave about the same being done with the certain construction standards on Building is parallel to what Engineering is now doing with roads with the AASHTO standards. I want to say that those are the kinds of results that I'm looking for in finally having this report done but we're helping Buildings, we're helping Roads understand that here are some parameters for what we should be looking at as far as standard operating procedures on replacements. I think that's a good thing that's coming out of this recommendation. I just wanted to say that Engineering has done this now with Roads most recently in the last few months. Mr. Pasion: It's a positive development. Chair Furfaro: It's a positive development, I like the way you frame that. Thank you, sir. Mr. Pasion: I just wanted to make a comment. Scott Sato was just showing me the response from the Administration to the audit, and I would like to request the Administration that they address the response to my office rather than the Council. Chair Furfaro: I'm going to defend them here because they've been working with me. I had sent over questions prior to you having this response but I hear your concern and it will first go to you in the future. Mr. Pasion: Thank you. Chair Furfaro: I think you recognize that when I was Finance Chair, I was on the Audit Committee when we didn't have an Audit Department. So it's a habit we're trying to break. Mr. Pasion: Chair Furfaro: got today? Mr. Pasion: said just keep it for now. Chair Furfaro: over to you. Thank you Chair. Do you want a copy now of the report that we Scott was giving me a copy a while ago, but I But I think the Administration did send it Mr. Pasion: Yes, we were cc'd on the response, but like I said can you imagine if an audit by the State Auditor Marion Higa and the response from the auditee would go to the Speaker of the House or the Senate President? It would be kind of putting the State Auditor in a different... Chair Furfaro: I think I offered the piece that they have been working with me since 2008 and I still had questions outstanding. Mr. Bynum did you have a question? Mr. Bynum: Thank you for your last comment because I agree. You have your consultant here; you're here to answer our questions and you 61 COUNCIL MEETING FEBRUARY 15, 2012 have to do that right before never having read this response. I think the quality of our discussions are going to be impacted by that greatly and it's really important we establish appropriate norms. I believe your office has appropriately asserted yourself, as you just did saying this isn't the way the norm should be. I appreciate that assertion and I appreciate the Chair's response that we're going to get it right in the future, not we, but they're going to get it right in the future -at least that will be our expectation. Chair Furfaro: Mr. Bynum, I passed out to you that 2008 response I was waiting for. Mr. Bynum: I understand, because for me this discussion goes back to 2005, but the quality of any dialog you're going to have right now is difficult when we're handed a fifteen (15) or twenty (20) page document for the agenda item right now. It's bad enough when we don't get it in advance and can do some of our homework, not that I always do but I try to, but we're going to ask you questions and you haven't even seen this. Mr. Pasion: Yes, we will be blindsided by the fact that we didn't get it. Mr. Bynum: That's a good word, blindsided, and that's just not acceptable for the future. I almost want to ask for a deferral and bring this back later, but your consultant is here. Chair Furfaro: Actually that's my intent. Let's hear from the consultant, let's defer this. Ernie, you have seen my draft 2008 questions? Mr. Pasion: I did. Chair Furfaro: Lani is acknowledging, yes. Mr. Pasion: Yes, I did. Chair Furfaro: So we're going through a transition, all of us. But I do think it would be wise for us to hear from your consultant, have some dialog and maybe defer this until all the members can look at these reports. Would that be acceptable to you? Mr. Pasion: Very acceptable, Chair. Chair Furfaro: You go right ahead with your presentation. PERICLES MANTHOS: Good afternoon Chair and members of the Council. My name is Pericles Manthos, I am the owner of and general manager of Manthos Engineering. I was brought on to provide technical support for the audit in these three (3) audit areas: the follow -up of the gym audit, the fire station audit, and the road resurfacing program audit that we're working on currently. I would briefly talk about the audit findings; I'm not going to read the report obviously in detail but go over some of the highlights. Basically, we went with the audit back in 2005 I believe that was done by another firm and to look for the implementation of the audit findings. In this current audit, we look at what the implemented (inaudible) they have committed majority of the findings over fifty percent (50 %), 62 COUNCIL MEETING FEBRUARY 15, 2012 fifty -seven (57) I believe of these ninety -six (96) items either in the process of (inaudible) or already implemented and there are there were a few items in fact that should not have been implemented at all. I'll give you an example, one (1) was on bidding strategy. The earlier auditor talked about throwing out the high bid and throwing out the low bid and picking a bid in the middle. Although that may be fine for the private sector, it isn't legal according to the procurement code, so you really don't have that kind of flexibility. There are best value audits you can do where cost is a factor, but not the only factor but you can't really do a cost audit and just throw out the high one and throw out the low one and pick one in the middle. So there were some things we had to say should not have been implemented and they weren't implemented, so that wasn't an issue of them implementing things that shouldn't have been implemented in the first place. The most significant things were in findings and involved the loss of personnel and the loss of expertise and basically the wide - ranging kind of policies and procedures. They really haven't been codified. They have various procedure they are in the process of coming up with procedures and processes that will improve their facilities and improve how they do the inspection and management, but at this time they are still working on bringing them together, and there's a lot of those that haven't been written. There really isn't a concise procedure manual and it really falls back into the whole issue of personnel, the continuity of personnel. If you don't have the personnel to continue, then you need kind of a cookbook for the next cook to take over. If the cookbook isn't there, then they have to reinvent it and there's a loss of time, abilities and maybe people doing things that they shouldn't be doing because the procedures aren't codified in the manual. These are the things that we see that the procedures need to be better written down, more precise so that it can be handled by people that are just coming into the system. Earlier I note you had talked about something in place for kind of a transition when someone leaves, but part of the problem is, you always have a hiring lag in government so you don't necessarily have them onboard the moment that person leaves. It's pretty hard to bring somebody back once they have left. You have to rely on the written correspondence and the directives that are in these procedures kinds of documents, so there were a lot of those that still needed to be worked on. There's always a lack of expertise in government service that you see routinely and they can be handled by a specialist. You bring on consultants to sometimes do the entire job, but some of the other things you can do is to bring on consultants to do a specific task that maybe across a number of jobs. One of the implementation things is to bring on a consultant that just does your complex scheduling, or a consultant may be from an engineering perspective that does the claims analysis. So you don't necessarily have those experts onboard that are pretty hard to find at government salary and also pretty hard to find period but you can have them on call as you need them so they're not really paid unless you need them to do something. But you don't have to go through the process of doing a contract and everything else to bring them onboard when you need them so you can respond more quickly. Those are the kinds of things that we saw throughout the audit that were not implemented that are just difficult to (inaudible), but I have to say that the auditees were pretty responsive to these things. They were moving forward on a lot of them, and I just took a brief glance at the letter and I saw a lot of concur, concur, concur, which made me feel pretty good for the audit. I really don't have a prepared speech to say, I was more here to, where ever the direction went for this discussion, for any questions you might have. I know there were some issues with the gym involving the physical construction which probably was the reason the 63 COUNCIL MEETING FEBRUARY 15, 2012 original audit went forward but this audit basically talked about procedures and policies and things within the Building Division which we focused on going through each of these suggestions and requirements and findings and answering them, asking the question have they been implemented, and then looking at the liability of whether they should be implemented or not. That's basically what my task was, it was to go through those items. We had several interviews, we collected the documentation and looked at it, and the results are in our report. Chair Furfaro: I have asked my staff to give you a copy of my notes from the March 28 draft that you indicated there unfortunately that never got on an agenda in the Council in that period of time, but it was a draft at the time. The other thing, I had picked up on what you had indicated here you said continuity and succession planning is what Councilwoman Nakamura and I talked about, we can do that for the Council, it's a point we were trying to make with the Administration but you said the retention of people at government pay levels... there's a stand on that. We have a Salary Commission that's supposed to be reviewing these things. Mr. Manthos: You also have a union and you also have set salaries and I happened to know this from my... I'm a former government worker and I participated in some (inaudible) surveys on salary levels. The annual State of Hawai`i is down near the bottom. I remember at the time there were only two (2) States that paid less than Hawai`i for civil service workers for engineers and it was New Mexico and I think North Dakota. Because that's very difficult to bring, I have a very difficult time finding people. The University of Hawai`i doesn't put out that many engineers and a lot of them move to California and points west where their starting salary sometimes is a third to twice what the starting salary is in Hawai`i. For the most part is that we rely on retirees that can afford to work in a civil service. It's a problem finding people, I personally have found very much success advertising on Craig's List in the middle of January in the northeast because people move here when it's warm. So you basically have to attract the quality of life for people here and that has to be attracted with Kaua`i being a pretty attractive place, it's pretty remote and it's hard to bring in young graduates. It's very hard to bring in the young people that you want as career minded civil service, so you have to work with specialists and augment your staff with outside consultants. So I'm not making an argument for consultants because I know that all the agencies throughout the State have vacancy rates and they can't fill them; we're in the middle of a recession and we still can't fill the positions so it still needs to be some other reasons and it's just difficult. We don't have that many engineers; we don't have that much technical people here and... Chair Furfaro: Well I just wanted to make sure that that portion of your comment in the audit gets directed to the Salary Commission because they're the ones that review grades, recruitment and so forth. I thank you for that comment, but I'm going to provide you a copy of my March 28, 2008 comments. It deals with some of the things you know the review of the bid, the contract documents, it also talks about policies and procedures that I think you highlight in your findings here that there need to be some refinement in that, but it's still really focused on the gym. I want to thank you and the Audit Department for meeting with me yesterday, but we have those doors on the koolau side of the building that do not have any protective easements or eaves even of... you know that's a consideration that came up in these comments. Going under the koolau side which is the windward side dealing with maybe a more of a concrete footing. 64 COUNCIL MEETING FEBRUARY 15, 2012 What's very interesting that I find with the Kilauea Gym, the gentleman, the contractor that we had discussion with eighteen (18) years ago told us that a typical gym floor actually has a lifespan of twenty (20) years, so here we are two (2) years out before its due time and we have issues with the cupping of the floor from the leakage of the roof attachments and /or the flashing, and it's probably something we should consider going forward in the... Well those recommendations are in that report that I shared with you. But I think you heard the fact that we're all just getting this information now, we probably want to have some time to digest it, and I'm not familiar with what your contract is with the Audit Department, but can I assume that you are flexible enough to come back if this item resurfaces in the near future on the agenda? Mr. Manthos: Of course. Chair Furfaro: Okay, thank you. Members? Go ahead Mr. Bynum. Mr. Bynum: Can I call you Pericles? Mr. Manthos: You can call me Perry, that's fine. Mr. Bynum: Well we just don't have people with that famous of a name very often. Mr. Manthos: We had a Cesar, I recall. Mr. Bynum: Yes, I know... Just first I want to thank you for the time we spent yesterday. It was very informative to me and also something that we're going to discuss here next week with the follow -up of CIP and some of those issues we started at this Council in 2009 -what is the right mix of personnel versus consultants, what can we do in -house versus out, and so those comments from you and also in the audit about finding that balance and doing effective use is of great interest to me. Overall, I think I just want to make this distinction: we had the Kilauea Audit in 2005, and this really is more of an audit of Building Division as opposed to the gym, right, about how they implemented the recommendations that came in at two thousand (inaudible). Mr. Manthos: It's an audit of how they implemented the recommendations of this audit rather than an audit back to the gym. Mr. Bynum: Right. Mr. Manthos: It's going to be a follow -up on the recommendations for procedural changes. Mr. Bynum: Well, I know the Chair shares my frustration that we never got to do the follow -up to the gym audit, and he did a lot of work on it, and we never had that dialog, but it was also a frustration I know of Public Works Division who went through the audit and was never presented the finding. What's the point of doing an audit if you don't get feedback about how you can improve your operation? So the Kilauea Gym Audit at the time was a political football and it was great that we did it and then we really didn't for a number of years. The department didn't get to see the findings. I already shared my frustration that they got the 65 COUNCIL MEETING FEBRUARY 15, 2012 findings this time and didn't respond when they had an opportunity, but we're correcting that and we're going to correct it in the future I'm sure. I just wanted to make that clarification, the difference between the Kilauea Gym Audit from years ago and what we're doing now about the following up with what looks really more about the operation, and I'm going to ask Public Works about some of their efforts to implement some of these things. So thank you very much. Mr. Manthos: Thank you. Chair Furfaro: (inaudible) my questions were going over about the Kilauea Gym Audit 2005, responses in 2008 your scope included the Kilauea Gym but was involving Public Works projects in a broader scope. Councilwoman Nakamura. Ms. Nakamura: Thank you for being here. I have some questions about the audit. There were ninety -seven (97) recommendations from the Kilauea audit 2010 -2011 report and it's stated in this audit that fifty -six (56) have been implemented, so I'm left with forty -one (41) recommendations and I cannot figure out by reading this audit how to account for the forty -one (41) remaining Now you mentioned earlier. Mr. Manthos: (inaudible) in the back. Ms. Nakamura: I counted forty -seven (47) there. Mr. Manthos: Yeah that's... Chair Furfaro: Excuse me let's let her give a question to you. Mr. Manthos: I'm sorry. Ms. Nakamura: And you also mentioned that there were some recommendations that really didn't make sense or may have been inappropriate recommendations, how many were there that were inappropriate recommendations? Mr. Manthos: I would have to go through and look at those forty -six to give you the exact number, but there were a few. And they were mostly... the two (2) that I recall right now was... and I'm sorry for interrupting by the way, I'm Greek and that's the way we always are. The one on the... mostly about procurement issues and just basically issues that we can't get through government. One of them of course was the selection of bidder, not selecting the low bidder. The other one was a full dotted adaptation of the CSI format for all work. The CSI construction specifications (inaudible) is very applicable to buildings, architects but it's not applicable to roads which is AASHTO, American Association of State Highway and Transportation Officials, and then there's other groups that has specifications. The County's specifications that were adopted in `84 and `85 are following a different numbering system. The recommendations said that everything should be a CSI and it really shouldn't, so those were items that we saw. Ms. Nakamura: And that's really important to me to understand which recommendations of the ninety -seven (97) were inappropriate 66 COUNCIL MEETING FEBRUARY 15, 2012 recommendations based on further research and discovery and so forth and communications with the Building Department staff that may have shed some light on why they don't do things a certain way because then we're left with how many are valid recommendations and I could not discern that from reading this audit. Mr. Manthos: We separated those so it would be easy to discern and they are in boxes. If you go through the audit you'll see a box that will say... I forget the title... summary of important recommendations to implement and it's organized by chapters. Those are the ones that we're talking about that need to be implemented, so we highlighted those. Ms. Nakamura: For example in the pre -bid and bid documents section it says... Mr. Manthos: Which page are you on, I'm sorry. Ms. Nakamura: I'm looking at page seven (7). It says seven (7) recommendations were made in this category, three (3) have been implemented or partially implemented. We recommend implementation of one of the outstanding recommendations. So my question was what happened to the other three (3) recommendations? At the very next page, there's the box you're referring to and it refers to one (1) of the four (4) issues that are discussed up above. Mr. Manthos: Ms. Nakamura: Mr. Manthos: Ms. Nakamura: Mr. Manthos: Ms. Nakamura: Mr. Manthos: Where it says the audit recommends adopting, and we agree with the division that it should not be implement these recommendations at this time. Ms. Nakamura: Mr. Manthos: because if you use colors, Ms. Nakamura: you have agreed not to... about the other two (2)? Mr. Manthos: questionnaires, there's a Ms. Nakamura: for me to follow this and If you look at the next page, page eight (8). Yes, that's the box you're talking about. Yes. So that's the one recommendation... The paragraph. Right. Okay. We tried to highlight it without using colors it doesn't always work on a black and white copier. Okay so that's one (1) recommendation that you are saying don't follow that recommendation. So what Well we're talking about standard couple others in the same paragraph. I just want to relay that it was very difficult to understand the logic behind it and I can see where you 67 COUNCIL MEETING FEBRUARY 15, 2012 have distilled the discussion into the one box that says of these seven (7) recommendations since they've done three (3), there's four (4) additional and then you end up with one (1) recommendation. I'm just not following the logic here. Maybe it's just me. Chair Furfaro: Can I interject something if I may? You should know that these (inaudible) `97 to 2002 and none of us were on the Council, so it's more important for us to understand the first go round, the first fix, and then the second fix, and I think that's what you're getting at- understanding what happened there. Mr. Manthos: Well if you look at the paragraph we just talked about, I mean we're talking about securing five (5) bids for major projects, maintaining the standard questionnaire, and the highest /low bidders being eliminated; those are the three (3) items that we did not concur with because they don't concur with State procurement law. Ms. Nakamura: Then I have to ask why they were in the original audit. Mr. Manthos: Well I couldn't answer that because... Ms. Nakamura: Who did that original audit? And why would we put in recommendations that are not consistent with the State procurement law? Mr. Manthos: Well I didn't do that. I think that maybe the reason that those stayed in the audit may have been part of the problem that the audit wasn't commented on. If the audit may have been commented on and the comments have been going back and forth, it might not have been in that audit in the end but there was (inaudible) audit being commented on because that was my first thought. No auditee would just say we're going to throw out the low bidders and not respond. Ms. Nakamura: But I believe that there were comments back on the initial Kilauea Audit, were there not? And this is maybe for Lani or Ernie to answer. Ms. Nakazawa: Lani Nakazawa, Auditor's Office. Perry's correct that when you ask why those recommendations were in the initial audit to begin with, this was an outsource audit, so it really began and occurred before our office was organized, so we really don't know. Moreover, when our office was begun, we took the draft audit report and sent it to the auditee and this was some four (4) or five (5) years after the fact. The auditee did provide comments; however, when we transferred those back to the office that actually did the audit, the person that had done the audit had already left. So the most that they were able to do is to comment on the non - technical aspects of it and I think you will see in the report that that firm's response to the audit was that since the auditee's response was basically to dismiss all the recommendations that were made that the auditee firm would stand by its original findings and recommendations. Ms. Nakamura: I think what makes it really difficult for the reader to understand is that you're still referring to ninety -seven (97) recommendations and I'm not sure whether the ninety -seven (97) is the total 68 COUNCIL MEETING FEBRUARY 15, 2012 recommendations that we should be referring to. It makes it sound like we've only done fifty -six (56) of the ninety -seven (97), but actually how many are actually outstanding and you're saying that number is smaller? It's only what's in the box. Mr. Manthos: Well they are all technically still outstanding; we're just saying that some of them are not relevant. Ms. Nakamura: Exactly. This audit needs to tell us which ones aren't relevant and make it very clear. So then of the ninety -six (96), fifty -six (65) have been done, ten (10) or twelve (12) are not relevant, therefore let's focus on these issues. There's a gap here. Ms. Nakazawa: I apologize for the misunderstanding but our focus was basically on the reverse, it was to attempt to highlight those recommendations we felt would be important to implement, so we put them up in a box so the importance of those outstanding recommendations would be apparent to the reader and the public, but I can understand how... Ms. Nakamura: So that means the others are not important? Ms. Nakazawa: Right. Ms. Nakamura: The other recommendations? Ms. Nakazawa: Yes. Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: I think Councilmember Nakamura is saying that it's just in that summary statement of fifty -six (56) out of ninety -seven (97), it's kind of misleading to everybody, to the public and us. Because it's actually fifty -six (56) out of maybe eighty (80) that are, we really want to know how many have been implemented of the ones that are important to implement. I think you tried to show that in the text of your report, but in the overall summary statistic, fifty -six (56) out of ninety -seven (97) you don't... the person reading that statement doesn't... I mean that's not the real statistic we're interested in. We're not interested in implementing the irrelevant ones. So your report has helped us distill the relevant ones, I've seen in the text that is your boxes, but the overall statistic is misleading because we've included the irrelevant ones in the total that haven't been implemented. So anyway I was just trying to explain our concern and to go to some of your (inaudible) recommendations. I appreciate that you highlighted the staffing issues and the... I mean I think our County has been very unconscious about this idea about succession planning, and our department head managers have not been looking at who's going to retire and how do I handle the fact that this huge amount of historical knowledge and expertise is going to be gone next year, in five (5) years, or in ten (10) years, and what are we doing to prepare for that. That's a very important highlight that you're bringing forth and I appreciate that. I don't think that it's going to be solved by just hiring consultants. I think that's a very expensive approach and I would like... It may be a question more for the departments than for you folks, but if you have some ideas from places, especially public offices, where they found a way to address this, I would be very interested in those findings. 69 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Manthos: Well if I may speak a little off the audit about that issue... Chair Furfaro: I just wanted to make sure if we go into items on staffing, I'm expecting you to provide us testimony so it can go to the Salary Commission because this has been a sore subject for a long time. Ms. Yukimura: Chair, though the Salary Commission only deals with... Chair Furfaro: Understood. The staffing guides are quite different from the salaries... Ms. Yukimura: They don't apply to civil service and I think most of the positions they're talking about are middle management and other levels not the executive department heads. Mr. Manthos: I am talking about middle management, HGEA... Ms. Yukimura: Right. Okay so that's what I'm interested in. Mr. Manthos: (inaudible) well I'm the former State Highways Administrator managing a thousand people in civil service, so I had a pretty good feel for that. Ms. Yukimura: That's where I heard your name before. Mr. Manthos: So we found that we could extend our staff capabilities by hiring open ended specialist because we don't have electrical engineers in the Highways Division, we don't necessarily have mechanical engineers, so we hired a firm for a small amount of money to have them on board so we could use them immediately if we got a problem. We can do seventy -five percent (75 %), eighty percent (80 %) of the drawings and then we have them do that little piece that we needed and we didn't have to go out... and we would just do these annual contracts. So it would be an extension of staff, on call, and not a very whole lot of money involved, and they're would be a task order generated so we can get the work done quickly. Also in areas in claims management, those kinds of areas we found very helpful. On recruiting new engineers, I found moving them around from getting a transferred program so they move around within the various branches within the division or things like that would help because it would develop a communicated ability within those branches for (inaudible) as they move forward. These are things that you can do to increase your capabilities. Personally I've never been much to care for procedure manuals because I always like being cutting edge, so there isn't a procedure yet, they're very helpful when you have transitions because it's very easy for a person to come in and say how do I handle a change order, how do I handle claims, what data do I collect in a daily inspection report? So it's all listed and because of the size of your civil service being small and because of the importance of getting projects out, your managers have a very tough time in doing that. So those are things that and I was happy to see is in progress. There's a lot of it in progress currently and I met with people who are working on these things... 70 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: You're talking about in Building? Mr. Manthos: In Building and some of the other divisions as well, so it's happening, but it's still behind and it's going to help you if you have some of those things in place for the next generation that comes in. Those were some of the... we tried to take these recommendations and some of them, we tried to distill them in the useful things and some of them are a little bit repetitive but those are the things we saw that will help. The audit, our goal was to help, it wasn't just to throw darts, and when you look at the ninety -seven (97) and fifty -six (56), well we're also engineers and we're kind of binary thinkers sometimes, on /off, on /off, and so it creeps into our writing at times, because an audit is kind of on /off as well. I apologize for not mentioning or distilling it further, we wanted to distill it to the boxes because we wanted to draw attention to those boxes so that the auditee can look at those boxes and these are the things we need to do. Ms. Yukimura: Those boxes are really helpful, it's just the overall summary statement which I think is not fair to Public Works because it implies that ninety -seven (97) are the ones that they should follow and they weren't all the ones that we fill. But may I just say that you've been very helpful in this list of ideas that you just put forth explaining how they might work and I actually encouraged the Planning Department to do that with historical building consultants. That they could just... you know if you have an ongoing contract, you can just pull them in when you need to on certain projects so I would see how that would work. But even with consultants, you have to know how to use them and a lot of our County people don't know how to use consultants. Mr. Manthos: Well, many States have this problem. In Arizona DOT they only have one (1) group that still does internal design and they've converted their engineers to program managers. Basically one of the things that is good to do is to bring your engineer up through the ranks, have them do the designs, do the work and then when you get to a certain level of management, they manage both in -house designs with the lower level workers as well as consultants, because they understand it. Ms. Yukimura: Right. Mr. Manthos: If you just bring in a manager who doesn't have the technical expertise, you might not necessarily get the product you want and there's a lot of argument on the plus and minus side on cost, and if you can't get the people and you just can't get them, you really don't have much of a choice if you want to do a program. That's part of what happened throughout the country. Ms. Yukimura: opportunities for in -house people too. Mr. Manthos: Yes. And you're providing promotional Ms. Yukimura: Right if what I'm following what you said. Mr. Manthos: Well for the State DOT we had a policy that as soon as a person passed the PE they went to "P" level automatically to a civil engineer four (4). 71 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: I don't understand what you're saying. Chair Furfaro: Okay let's leave the question there. I'm going to restate my piece, we're not here to talk about Human Resource policies, that's a new item, but I want to make sure you understand and I don't agree with everything you just said and I'll tell you that, but I want to share with you our problem five (5) years ago we enacted an opportunity for the Building Department to earmark money to bring in people projects specific. Some of them have been with us a very long time, like Pat that has handled this project here. Secondly, we just don't want to build staff and a County that has only a hundred and fifty -eight million dollar operating plan to build the staff to build more and more bureaucracy. What we want to do is make sure we hold positions available for people that we know are going to deplete our continuity plan and our success in planning. Right now we don't put any money in the budget for somebody that's... and I said this earlier today... who's ready to come into the County to learn the history, the background of projects and so forth. So when that person departs, we have somebody identified. We have an opportunity... we have people that retire that go through three (3) months of earned vacation before that position is vacant. We have no money set for bringing that person in pre- retirement and there is a difference just building staffing guides versus building continuity. And so if you have something on those comments, I would like to see it so we can direct it to the Salary Commission. Ms. Yukimura: Chair. Mr. Manthos: Well what we've done and (inaudible) successfully both at DLNR, I worked at DLNR as a Chief in design and construction, and then DOT as we contract hired the retirees for maybe a year's period to do the transition. Chair Furfaro: We do the same thing. I can name six (6) people that are back on eighty (80), ninety (90) day contracts. That doesn't solve a continuity problem. Ms. Yukimura: It helps though. Chair Furfaro: It postpones it. That's all it does, it postpones the problem. So I would love to hear from you on something, because on March 8, we're going to have a presentation about a new HR Committee. We'd like to know if they have a succession planning or continuity planning that's in there when we bring people on. Ms. Yukimura: So could I finish? Chair Furfaro: I don't want to take this on to something until we see a recommendation and they are going to come back. You finish your question, and then on personnel matters, they are going to come back. Ms. Yukimura: Okay. It seems like a lot of these issues are personnel issues: how you develop them, how you create continuity, and so forth. So I just wanted to... I mean I think you were finishing about converting engineers to program managers and we were talking about that. Did you have anything more to say about that? 72 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Manthos: I'm going to refrain from the personnel issues because it's a much bigger topic than this audit. One of the things that can help and it's being implemented partially is a better data collection reporting so that people can see what's going on and will be able to see the history, unified data systems. I briefly glanced at the letter that you got, we have a chance to comment on, I see some of that is moving forward. These are the things that you need so it isn't a personal data collection, it's a data collection that's available to everyone. Ms. Yukimura: And standardized. Mr. Manthos: And standardized and that helps too because when you get questions from City Council someone can look up... here's the status. Previously, I developed executive reports which went to the governor that were, I won't say simplistic, but a lot less information but enough for them to know what's going on. Ms. Yukimura: These are data on projects? Mr. Manthos: Data on projects. And you can see a progress, a unified schedule for the projects: maybe a scheduling group, a program management, project management group, a few people that just tracks all the jobs so you know where they are, because a lot of times you ask the question and they got to find out, it's simpler. Some of that you can develop a computer access system that has circles within circles and the people in the middle, this is the highest level security where all the data changed, out here is where the data can be viewed, and that access can come from anybody. You guys can have access, the public can have access, you have varied level of access, and these systems are out there but the questions are always resources. If you guys are resource constrained, these are nice to have and they get very expensive if people ask for lots of bells and whistles in them. I just caution you if you want these, if these things go forward, that they don't become overly complex because it gets very expensive. Ms. Yukimura: Well that should be the job of our IT position to support the basic needs without going into things we don't need. Lani, you were trying to say something. Ms. Nakazawa: I was just going to say this is on another issue, so with the Council Chair's indulgence, just subject to check I've gone through the report and made a quick tabulation and there were eleven (11) recommendations that were deemed in our audit to be not important to implement. Fifty -six (56) have been implemented. Ms. Yukimura: should still be looked at. Fifty -six (56) out of eighty -six (86) that Ms. Nakazawa: implemented. Chair Furfaro: I appreciate that you were going to address the Chair but she responded so let's leave it at that. I just want to point out and recently... and I know Mr. Bynum has been on top of this just for you, the Administration hired a capital projects manager. To be reporting to the Finance Fifty -six (56) out of eighty -six (86) have been 73 COUNCIL MEETING FEBRUARY 15, 2012 Chair periodically about project progress, I don't think we have worked out all the snags and how they reported to Finance and that's what I'm bothered with. We put the cart before the horse on how we're getting to a place and I'm sure it will pass on comments on that to that individual. Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you. Lani, is it possible to get an addendum once you get the responses from the Administration, I mean on their response I'm showing twenty -two (22) I believe. Twenty -two (22) responses, so is that something we can ask your office to submit an addendum in the future? Ms. Nakazawa: We will be happy to respond in some way to bring closure. Mr. Rapozo: Right so that we can finally say this is the audit, it is duly noted that they didn't respond and... Ms. Nakazawa: Whether we can do a full -on new report with bells and whistles... Mr. Rapozo: No, just an addendum. The other question is as far as recommended time and this may be for you, Perry. Mr. Rapozo: Some of these recommendations are pretty basic - provide policies and procedures and the basis for performing an accurate field inspection. It's hard to imagine that they don't have that. We've got guys going out on the field doing inspections and we don't have any policies and procedures, something that basic. Is there a timeline that you guys would be recommending that it should be completed, and is it at the discretion of the auditee, and is that something that we got to check back in six (6) months or nine (9) months? I think something like that is relatively easy to address. Provide specific training for (inaudible) enforcement person to understand and comply in major construction safety programs; to me that's basic. I would assume if you get a new inspector, you got to train them and apparently there's no specific training at this time for new inspectors. There's no new guidelines for them to take with them on the field like a checklist, I'm assuming because it says it's not implemented. Some of them are much more complex when you start talking about bids and pre -bids and so forth, but I'm just looking at just the basic operation. What is the timeline or time limit that we give these departments to comply? Mr. Manthos: I can't speak to a timeline but I can say that those things exist in pieces but they're not codified, they're not in one place. You can't necessarily have a new employee where you can give them a manual and say this is what we use, this is your daily inspector report, this is how you track material, and so I think some of the inspectors have been here a long time and have forms they developed themselves and share amongst themselves, but it's not a codified kind of thing where you can go to a manual and say this is the form you use for each job. It's really important because if you have claims and issues later, you want all that data as the agency to deal with the contractor if there's unforeseen issues. So by not having it, you're exposing the County. As far as timeline goes, some of these things are going to be very difficult for them to quickly implement, to drop what they're doing and do this, and it needs to be planned, and maybe you want to bring on a new person to have them do that that's a fresh look, that has experience doing it, that's well versed or a contract person that's worked here before 74 COUNCIL MEETING FEBRUARY 15, 2012 that wanted to do this but never had the time. As far as the timeline, I don't think there's any legal kind of timeline. It's obviously you want it done as soon as possible to increase your efficiencies. Mr. Rapozo: Well I just think some of these obviously can be done relatively quickly. It's a task that someone can sit down and say in a typical building inspection, project inspection, what are... just recreate a checklist. The response was informal procedures are currently in place, but what's an informal procedure? Our job here is to, like you said, I'm concerned of liability if something should happen and then put that poor inspector on the stand and that guy said yes we got informal procedures, I do it the way I want, and she does it the way she wants, and he does it the way he wants... maintain we come back with a filled out sheet we're okay. Those things are troubling for me, and some of the other things, like I said the personnel issues. We have a new law now... A person that retires cannot come back on a contract basis for six (6) months, so that opportunity is gone; the State passed that law. So if you're a retired person from the County or from the State, you cannot come back to work for six (6) months, so there goes your transitional training using an eighty -nine (89) day contract person. Now Mr. Furfaro has been talking about transition plans for years. We don't address it. I think the audit, as we move forward with more audits, I think we're going to start getting the attention of people and the departments because now actually we have a checklist now that we can follow. Your book here... now I can check every six (6) months, I can send over a communication and say by the way have you done those policies? This is a wonderful tool for us and for the public. The newspapers hear and will print some of this stuff and people will say wow, so hopefully it's an incentive for the department to start moving to some of these recommendations as presented years ago. I appreciate it and it was tough to read, but with your explanation, it's much easier. You're an engineer right? Mr. Manthos: Yes. Mr. Rapozo: I don't think any of us are. So it was a little difficult to follow, but the explanation does make sense, so I appreciate the book and I do agree, though, an addendum would be necessary to make it complete, and hopefully when we move forward when we do have... Can you imagine if Marion Higa didn't get a response from the Department? Can you imagine what would have happened if Marion Higa did not get a response from the department? Again, I don't think our audits are any less important than Marion Higa's. The people voted for this and it's our job that the people get that service from the Auditor's Office. So thank you, Pericles. Mr. Manthos: Thank you. Chair Furfaro: I'm going to recognize Councilwoman Nakamura and then I'm going to remind us, because I have a few things for you, because we are going to ask you to come back, but we have committed times on other presentations here at 3:45 and 4:00. So Councilwoman Nakamura, you have the floor. Ms. Nakamura: Thank you. With that information you provided, Lani, about eleven (11) recommendations that are not relevant, that leaves us with eighty -six (86) recommendations of which fifty -six (56) were implemented per your report which leaves us thirty (30). In the response that we 75 COUNCIL MEETING FEBRUARY 15, 2012 received today from Public Works, they respond to twenty -two (22) recommendations, so there's eight (8) missing recommendations, and I would like to know whether these recommendations are going to the bad recommendations category or in the need to be done category, and I wanted to see that reconciled so we know whether the first... because that brings light to the first audit and if it's eleven (11) bad recommendations plus eight (8) more, that's nineteen (19), that's almost twenty percent (20 %) of the recommendations being irrelevant and that tells me something. So I would appreciate that follow up. Thank you. Ms. Nakazawa: Okay. Chair Furfaro: So just repeating that we are going to work on the addendum that Mr. Rapozo talked about. Councilmember Nakamura then summarized it right now on where we're at, we're probably going to ask to put this back on the agenda in two (2) weeks. I also want to clarify your audit report and the responses they gave to me, they've been hearing from me since 2008 about Kilauea Gym, you folks have Kilauea Gym as part of your scope. It doesn't trump my answers because my children's grandmother took hula in that gym, my children danced in that gym, I coached in that too a long time ago. But the issues: I want to make sure where we are on the floor, where we are on the actual leaks, what are the solutions, and that is very important to me because those moneys have to show up in this next CIP piece, and there are specific opportunities for the residents in Kilauea to use the gym in a predetermined schedule of the repair. We had things that went back to the FEMA contract, testing by the fire department, all previous to me being on the Council, but we knew it was being done. Then we had contract disputes; we might have actually had some legal action we could have taken to get those things done. We funded two (2) amended projects, one for sixteen thousand, one for two hundred and forty thousand. In the meantime, the floor is getting to be twenty years old. If we repair it right, can we get another five (5) years of life out of it? What do we do with the outside doors that seem to be leaking, those types of things. We still want to hear about Kilauea Gym, it's really important. On the staffing items, I would love to have a section that talks about the staffing issues, so we can have some testimony with the Salary Commission and so forth, because some of those positions aren't going to be civil service, they're going to be positions like for a trainee that comes on early, starts being exposed to different areas, and some of your influence would be very much appreciated in that point. But at the end of the day, March 15 we're going to come up and have CIP discussion and we need to get the Kilauea Gym fixed for the three (3) items that: it still leaks, the floor still cups, we have kids that have sport programs in there that are scheduled to happen and we want to make the gym available to them. So your comments will be very much appreciated, very much appreciated. Vice Chair Yukimura. Ms. Yukimura: Yes, thank you. I'm looking at the response from the Administration on number twenty (20) on the last page, it says the county's capacity to execute capital projects has decreased since the audit and the Administration's response is that it has increased. So there's a disagreement here about the conclusion and I guess my question and it doesn't have to be necessarily answered today but as part of the follow -up. The follow -up is how do you measure capacity to execute capital projects? Because this is of great interest to us because we are concerned about our bond projects that have a three (3) year general timeframe and the pace at sixty million, expenditure of sixty million dollars. It would be helpful to me and maybe you discussed it in the audit, and if so, I apologize, but highlighting it again or focusing on that will be really useful to us. 76 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: Be prepared for the response in two (2) weeks. Ms. Nakazawa: Right... Chair Furfaro: You heard the question? Ms. Nakazawa: Yes. Chair Furfaro: Be prepared for the response. Ms. Yukimura: How do you measure capacity to execute capital projects? Thank you very much. Chair Furfaro: Thank you very much. There being no objections, the Council recessed at 3:58 p.m. The Council reconvened at 4:08 p.m., and proceeded as follows: Chair Furfaro: The issues with our audit, and I am looking for a motion to defer this for no more than two (2) weeks, and I want to make sure we also have a clear understanding there is recommendations on personnel matters that can come to us from the Audit Department's consultant as an item. Number two (2), we're going to merge the twenty -two (22) responses from Public Works into a document that has an amended summary, leaving us eight (8) items open and still yet to be addressed. Third, I want to make sure that the 2008 report on the Kilauea Gym is still open, and the fact of the matter is we're looking for some answers that have been circulated through Public Works so we're prepped well when we get into the CIP review of next year's operating budget. On that note, I'm looking for a motion to defer for two (2) weeks. Upon motion duly made by Mr. Bynum, seconded by Ms. Yukimura, and unanimously carried, C 2012 -49 was deferred. There being no objections, the Council recessed at 4:10 p.m. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Mr. Clerk, I would like us to get back into sequence now. C 2012 -42 Communication (12/07/2011) from the Planning Director, transmitting the Public Access, Open Space and Natural Resources Preservation Fund Commission's recommendation to fund and facilitate acquisition of a portion of the former Hoban Property, Koloa District, TMK 2 -6- 003:017, to provide public access to Kukui`ula Bay: Ms. Yukimura moved to approve C 2012 -42, seconded by Mr. Bynum. There being no objections, the rules were suspended. 77 COUNCIL MEETING FEBRUARY 15, 2012 IAN JUNG, DEPUTY COUNTY ATTORNEY: Good evening Chair, members of the Council, Deputy County Attorney Ian Jung on behalf of the Planning Department and Open Space Commission. While the computer is warming up there, I'll give a little introduction as to what our intent is here is to essentially get a feel -out from this body before we start the wheels moving in getting an updated appraisal as well as looking at renegotiating with the landowner. I think what some of you may have recalled back in 2006, well from 2005 to present, every year this piece of property, or this access on this property, has been on this recommended list from the Open Space Commission in their annual report for acquisition. In 2006, the Open Space Commission and the Koloa Community Association got together to identify this piece to be an item that should be looked at to utilize Kukui`ula's shoreline resources fund through their ordinance 4370. Unfortunately, what happened was the request for the Resolution for condemnation that came up in 2007 was never acted on by the Council. Where it is now is that the ordinance is real specific about what can be done about those moneys or the EIA fees, that's the shoreline resources fund. The Kukui`ula ordinance indicated that it had to be used within three years after the adoption of that ordinance, so technically the funds are still available but now they move over to park improvements rather than being utilized for access. Notwithstanding that (inaudible) where the money would come from, the Open Space Commission still wants to look at utilizing the Open Space fund to acquire this particular access. Where we're at now is trying to come before this Council utilizing this communication to get a feel if the Council would be interested so we can move forward on coming up with a plan of acquisition to "a" get an appraisal done utilizing the moneys that are set aside for the administrative cost within the Open Space Commission, and two (2), to engage negotiations with the current landowner Mr. Hoban. So with that brief background, I'm open to questions if you have them. Chair Furfaro: Mr. Jung, I want to let you know I made a statement last week that I think the Open Space Commission should kind of set the priority on the pieces they want for appraisals to be done on. We set that aside in a change, with Council Vice Chair Yukimura and myself, and I just want to make real clear, I stated that last week if they targeted a piece of property and we have to reach out for twelve hundred dollars for an appraisal and that's what the body wants to do, I just want to say, to me the money is there, the Commission is identifying the priorities, they bring back the piece that evaluates the value, and then we can have a really good decision. That's what my position is. Members do we have questions here? Mr. Bynum Mr. Bynum: I know, Ian, that this Hoban easement has been a priority of the Commission for a long time, and I recall all of this, the Kukui`ula funds are now parks but they're not objecting for their use to acquire this easement? Mr. Jung: Well it's... the term that was used in the zoning amendment or the ordinance is within three (3) years they got to accomplish getting the access. Now the Koloa Community Association as well as the Open Space Commission got together and decided that Hoban should be the priority utilizing these funds, but unfortunately it was never acted upon, so whether or not what the term accomplish means could be subject to interpretation. But I think the safest bet would be just to utilize the Open Space funds versus going after the money that was already predisposed because of the lapse in time to go through park improvements. 78 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Bynum: Okay, so we're not acquiring the entire parcel, we're acquiring an easement, part of a parcel? Mr. Jung: Mr. Bynum: Yes, it's an easement. Do we have a ballpark figure? Mr. Jung: I think the last appraisal which was done in 2007 was roughly a hundred and fifty thousand. Mr. Bynum: I can only speak for myself; I'd be very supportive of supporting the access fund and moving on this goal. I just recall that do we have still priorities on the north shore for access but this was a south shore priority that was identified by the community repeatedly and we don't need to go into why it didn't happened in 2007, but if the question is are we supportive? Speaking for myself, absolutely. Mr. Jung: And just to address that I think the issue that the Commission has is how to approach the Council and doing the recommendation. I think this new version of which they'll tended to detail how they want to approach it is using these communications to suggest to the Council this is what we're interested in, before we get the wheels moving, we want to get a little bit of feedback before we start expending the money to go and do the appraisals. Mr. Bynum: And for myself, the amount of money had something to do with it too. If they were coming and saying we want to use one point eight million for this, that would be really great to have a dialog upfront. Last time we used that kind of money from the Open Space, I was able to engage in that dialog, but I had some concerns initially that needed to be allayed. But this is such an important kind of access and everybody agrees and the dollar figures aren't that huge. I like this idea of coming and consulting and talking before us; it's nice. Thank you Open Space Commission. Chair Furfaro: Ian, I just want to make a clarification. What I'm saying to you is, I don't have a problem when you come to talk with us, and you're coming with a current appraisal and understanding you're not coming to us with a purchase price, you're coming to us with a legal valuation that is necessary if we move on a condemnation. Council Vice Chair Yukimura. Ms. Yukimura: Who is the current owner? Mr. Jung: The current owner is Hoban Trust; I think his name is Patrick. Ms. Yukimura: Who's living? Mr. Jung: I'm not sure who. Ms. Yukimura: Well yeah it does say... Mr. Jung: That's actually the 2001 and I think Tessie has more of a history of this particular parcel. COUNCIL MEETING Ms. Yukimura: Mr. Jung: Ms. Yukimura: Mr. Jung: first get a feel and start... Ms. Yukimura: 79 I'm just asking who the current owner is. It's the Hoban Trust. Okay and is Mr. Hoban living there? We haven't gotten that far yet; we want to What is being asked here exactly? FEBRUARY 15, 2012 Mr. Jung: From what I understand, what the intent was is to at least request that we can move forward on this item to develop a plan for acquisition. I don't think it's necessarily a true action item. But I think what... we can get a feel first based on dialog. If we move forward with the plan then we'll come back, because the action that you'll have to take if we ultimately do acquire this by ordinance right, so we would have to go through ordinance making procedures. Ms. Yukimura: But you're asking to expend the moneys toward the appraisal? Mr. Jung: No, no, no. That would be under the administrative cost through the Open Space Commission so they could utilize. Ms. Yukimura: I see. So the authority is already there? Mr. Jung: Right. Ms. Yukimura: And you're just getting a sense from the Council? Mr. Jung: Correct. Ms. Yukimura: Okay. So the motion here might be to receive? That would be the appropriate motion. After the dialog which supposedly gives you the sense of the Council's preference in terms of what to do? Mr. Jung: Right. Ms. Yukimura: Okay. So the estimate that you have in mind for the cost of appraisal is not a hundred and fifty thousand? Mr. Jung: No, no, no. Ms. Yukimura: That's the estimated appraised value of a easement, okay. Chair Furfaro: From 2007 appraisal. Ms. Yukimura: Right, right. But the cost of the appraisal itself would be something much less than... 80 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Jung: Ms. Yukimura: And you're of the administrative expenses which already available in terms of amounts of money? Mr. Jung: Right, per Open Space Commission can utilize up to five expenses. Mr. Rapozo: Mr. Jung: Mr. Jung: Mr. Rapozo: Chair Furfaro: Mr. Jung: Right. Much less than that, right. saying that it would be taken out have been authorized and are They want to move now. They want to move now. implementing ordinance. The percent (5 %) for administrative Ms. Yukimura: Okay, I'm very clear and I guess it would be appropriate for me to withdraw my motion to approve. Chair Furfaro: Other members? Mr. Rapozo. Mr. Rapozo: Thank you. Ian so there's been no discussions with the landowner at this point? Mr. Jung: Not since 2007, and at the time in 2007 it looked like it would have to go as a condemnation versus straight forward. Mr. Rapozo: Right. Which would require a lot more than an ordinance and resolution and all of that? Mr. Jung: Right. Mr. Rapozo: I guess there's a process in place with the Open Space Commission to submit their recommendations to the Council and we would respond? Mr. Jung: There is the process in terms of doing the annual report, but what I think the intent out of this was to show this as a priority. Mr. Rapozo: Now I guess the question is I don't think they need our approval to spend the administrative cost right? No. So they can go ahead and do the appraisal? That's right. Mr. Rapozo: Well I think we should go after that access. I think we definitely should make that happen. This would be a good model to use going forward for the other recommendations of open space. 81 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: I think this dialog is good and so they get an understanding of where the Council is. No sense go and do the work and come back and Council say no. Mr. Jung: Exactly. Mr. Rapozo: So if you're asking for... At this point, based on what I'm seeing, I would definitely support moving forward. Chair Furfaro: Councilwoman Nakamura. Ms. Nakamura: Thanks for the update, Ian. I appreciate this update and I think this type of communication is a good thing. I would support moving forward but I have a couple of questions. One (1) is, is there an estimated cost of completing the transactions? Mr. Jung: Well, the only experience that I've had in dealing with utilizing this fund was with the Hodge piece, which I think a lot of you are familiar with. In that particular case the landowner was willing to assume all the required cost for the transaction. The transactional cost in terms of getting the documents prepared and whatnot would be relatively slim, because our office would prepare them, the grants of easements and whatnot, but if it does ultimately get to the condemnation action, then there would be some litigation cost that would be incurred. Ms. Nakamura: Surveying cost... Mr. Jung: Surveying cost, appraisals, right. And I believe a lot of those funds or a lot of those fees would be included through the administrative cost through Open Space Commission. Ms. Nakamura: I think that's good. I mean we have to start somewhere and get the expertise to do these types of projects and start checking off some of these projects that have been on the list for so long. Also, with respect to Kukui`ula funds, it sounds like the time period has lapsed, but the intent was always to be used for one open space, one access in this vicinity, so would Parks and Recreation Department be open to using those funds for the original intent even though the time period has lapsed? Mr. Jung: I've had a brief discussion with Lenny Rapozo, and it becomes sort of a nuance of language in the zoning ordinance because technically it had to be accomplished before that if we could figure out a way to shift the fund -the money from park improvements to this access. We can certainly look at that but at first glance it would appear that we would have to possibly amend the zoning ordinance to truly acquire that and that's quite a lengthy process which a lot of you are familiar with. Ms. Nakamura: Thank you. Chair Furfaro: Vice Chair Yukimura. 82 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: You couldn't just amend it to remove the three (3) year limit because it's already been transferred to Parks, is that why? Did the law say if it's not used in three (3) years then it shall move to the Parks? Mr. Jung: Yes. If you look at page eight (8) starting condition fifteen (15) "e" one (1), five hundred thousand dollars ($500,000.00) was set aside for improvements for shoreline recreation resources, the first is the dedication of lands of an easement along with the development of a public beach parking lot which is the Boyden's parking lot that was constructed, of which the money that was expended on that project couldn't exceed a hundred forty thousand ($140,000.00). Number two (2) is an acquisition by the County of at least one (1) beach access, done in consultation with the Koloa Community Association and the Open Space Public Access Commission which was done. Three (3) is Po`ipu Beach Park expansions, and four (4) Po`ipu Beach Park improvements. Now the clause following subparagraph four (4) says if options two (2) or three (3) are not accomplished within three (3) years from the date of enactment of this ordinance, these funds shall be used for Po`ipu Beach Park improvements which brings it back to option four (4). Ms. Yukimura: But Po`ipu Beach Park improvements doesn't say it shall go under our Parks Fund? Mr. Jung: But because Parks deals with the vicinities in terms of Po`ipu Beach Park, I think... Ms. Yukimura: Right, but if there are the restrictions, I mean so the question is can Parks' money be used for public access if it's in the Parks Fund. If it's earmarked for Po`ipu Beach Park expansion, you can just amend these "funds shall be used" and amend it to say "Hoban...? Mr. Jung: I think that's certainly an option. But in looking at in terms of time on this. I mean if it's a condemnation, it will take a while anyways, but if we can negotiate something with the current landowner then there's a possibility to move on it now without wanting the amendments. Ms. Yukimura: How much money was in there theoretically transferred into the Po`ipu Beach Park improvements? Mr. Jung: The last estimate we got from Kukui`ula was about two hundred and thirty -eight thousand dollars ($238,000.00). That's still available for use for park improvements. But bear in mind that as they move forward with their subdivisions, their EIA fees can be deducted from that amount. Ms. Yukimura: EIA for what? Mr. Jung: Environment Impact Assessment fees. Ms. Yukimura: I know, but for what? Mr. Jung: For their park dedication fees. As they go through with subdivisions, move forward with subdivisions, they're required to pay a certain fee and they can deduct that as they move forward. I guess the point is the notice on the County to start utilizing this money. 83 COUNCIL MEETING FEBRUARY 15, 2012 lot? Chair Furfaro: Mr. Jung: Mr. Kuali`i: Mr. Jung: Gardens. Mr. Kuali`i: of the road, near Spouting Horn? Mr. Jung: the other side. Mr. Kuali`i: on the beach and it's at the edge talking about? Mr. Jung: easement that was utilized in the there but... Okay. Councilmember Kuali`i. Mr. Kuali`i: Aloha and mahalo, Ian. I just have a really basic question, I can't tell from the map, where is that located? I apologize, I should have. Above that... what is that? Is that a parking That is the National Tropical Botanical So it's near the end of the road? Near the end Right. So it's right past Kukui`ula Bay from So the actual property is a homeowner house of the property where the arrow is that you're Yes, there was a current County drainage past for people to access the little beach down Mr. Kuali`i: So what happened to the drainage easement? Mr. Jung: The drainage easement is still in place, but he blocked it off for pedestrian access. The idea though is the easement is exclusively for drainage, so technically it's not for pedestrian public use. Mr. Kuali`i: So the drainage easement was in place and pedestrians were using it, but up until what point did it stop and how and why did it stop? Mr. Jung: Mr. Kuali`i: saying? Mr. Jung: Mr. Kuali`i: Mr. Jung: I don't know the answer to that question. Was it a long time ago? Is that what you're From what I understand, yes. Before 2007? Yes. Mr. Kuali`i: I think that would be interesting to know because if there's another way that it can be done without any cost, I mean of those six (6) priorities from the Open Space Commission, are the other five (5) all over like 84 COUNCIL MEETING FEBRUARY 15, 2012 a million dollars and that's the only one that's even doable right now and that's why it's a priority or was it the number of money? Mr. Jung: I think that's certainly one of the considerations is the lower value because a lot of the beachfront property exceed two million dollars and a lot of the larger pieces that you'll see in the upcoming report are quite substantial in terms of funding requirements. Mr. Kuali`i: And how much land area does this cover? Mr. Jung: It would be your standard ten (10) foot easement. Mr. Kuali`i: Ten (10) foot by what? Mr. Jung: Ten (10) foot and I think it was... I think sixty (60)? Oh, forty (40)? Forty (40). Mr. Kuali`i: Ten (10) foot by forty (40). So for that price the County would now own it? Mr. Jung: We would have an easement. Mr. Kuali`i: For how long? Mr. Jung: It would be perpetual. Mr. Kuali`i: Perpetual easement, okay. Thank you. Oh, the other thing is will there be any other... I'm sorry Mr. Chair. Chair Furfaro: No, go ahead. Mr. Kuali`i: Will there be any improvements necessary? Mr. Jung: I guess... Mr. Kuali`i: Because when I heard drainage ditch, I'm like okay so we're talking through the ditch or... I mean I don't know visually what it really is. Mr. Jung: It wouldn't overlay on top of the drainage easement, it would be either adjacent or... I guess it would be adjacent but depending on how far, it would have to be evaluated. Mr. Kuali`i: Because the drainage easement is still in place and this will be something next to it? Mr. Jung: Right. Mr. Kuali`i: Thank you. Chair Furfaro: Anymore questions before I make a comment? So Ian, I want to make sure that you're very clear, these parameters and 85 COUNCIL MEETING FEBRUARY 15, 2012 blockage that have gone up for the Open Space Commission about authorizing the eighty -one thousand, seven hundred sixty -two dollars that's in their account to do legal activities, appraisals and so forth, it's there because it's their decision. You're old enough to remember Ken Boyman aren't you? He has a story about these guys flying from Honolulu to San Francisco and they have a four (4) engine plane and the pilot keeps coming on telling the passengers, I'm sorry to tell you this is your captain speaking, our motor just went peal and we will be up here one more hour before we get to San Francisco, and this goes on until the fourth (4th) motor has burned out, and the two (2) passengers looked up at each other and they said, oh I guess we going be up here all night. It doesn't work that way. So let's make sure we understand that when the four (4) motors (inaudible), the plane is going to go down in the sea, and in this case the money is going to go to the Parks Department. We need to make sure we are showing the support for those priorities made by the Open Space Commission that we're not going to get caught like this and then have to then discuss how we're going to get the money back and so forth. Those are administrative cost and Councilwoman Yukimura and I made it a very big point when we introduced that amendment. That's for them to decide legal, the Planning person we have, and so they're advisors to what they want to do before the Council. I'm sorry we kept you so late. Mr. Jung: say a few words. No problem. But I think Tessie may want to Chair Furfaro: Tessie do you want to speak? TESSIE KINNAMAN: Good evening Council Chair and Councilmembers. I was hoping this would be approved today; maybe I was premature in my thinking but... Tessie Kinnaman for the record and I'm speaking as a member of the public. As I was saying, I thought this communication would be approved and forwarded to a Council Committee, maybe Planning or Finance, but I guess my thinking was premature. Considering that in 2007 complete packet was submitted to the previous Council back then, so I guess it was just received and nothing came out of it. I'm in support of the communication but I would like to see more expedient work done as soon as possible because that access has been, I'd say like fifty -five (55) years ago, I'm dating myself but when I was little, there were these plantation camps back there, it was Filipino camp, Korean camp, and Japanese camp, and then Kukui`ula Store was just across the Bay. I have cousins over there, and every weekend we would use that access just to go swim on that little stretch of beach there and then as we got older we started picking opihi, limu, and then the rest of the family would throw net or shoreline fishing. Since Hurricane Iwa, Joe and Martina Brun owned that property for (inaudible) years, and then Hurricane Iwa destroyed pretty much most of the property but then they sold the property, and the Hoban bought the property, and when he constructed his home, he built that wall that blocked the access. From way back then in the 80s, the community has been trying to fight to have that access reopen again. The Community Association did try, but then the conversation back then with the Planning Department, the Planner then, was that the access was just for drainage and having found out that it's a County -owned drainage, we figured that we can reopen it again and use it again for public access. That's the only access between Spouting Horn and Kukui`ula Harbor. You either have to be a really good goat to traverse over those rolling boulders and rocks there... and this has always been a route that we used for over fifty (50) years. I would ask that some expediency be done. I know the Open Space Commission has some work, but I figured that some of 86 COUNCIL MEETING FEBRUARY 15, 2012 the lay work that was done in 2007, that could be re- updated. Back then in 2007 there was a packet, the appraisal for that strip would have been like ninety -nine thousand, approximately, from the previous Finance Director. Chair Furfaro: Tessie, I don't want to disappoint you in what we're saying here but... Ms. Kinnaman: I know. Chair Furfaro: But clearly what we're saying is this... Mr. Jung who offers legal advice to them, go out and do a current appraisal authorized by the Open Space Commission, not the Planning Department. You folks authorize that. Get the appraisal done, make it current, and from the comments I heard from members here, we're ready to act when we know that that due diligence has been done. Because it could lead to a friendly or an unfriendly condemnation and we need to know what that exposure is. I think what I heard from the group here is as soon as you instruct legal to get a most current piece, I think we're willing to move. Ms. Kinnaman: I feel the support from the Council, thank you very much. Chair Furfaro: Mr. Bynum. Mr. Bynum: Thank you for being here, Tessie, and you've done exactly what your kamaiana to the south shore, you gave us the historical... why that access has the sandy opening to the ocean, and it has historic use. But I think the sandy being able to access the ocean to go diving, that's why it's high value and the historic uses. Thanks for sharing that. Ms. Kinnamin: Thank you. Chair Furfaro: Very good, thank you very much for waiting here this evening. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura withdrew the motion to approve C 2012 -42, seconded by Mr. Bynum. Ms. Yukimura made a motion to receive C 2012 -42 for the record, seconded by Mr. Bynum. Chair Furfaro: Mr. Chang. Mr. Chang: Thank you Chairman. I just wanted to thank Tessie for being here all day, you were here first thing in the morning and that just shows the dedication of our Commissioners. A lot of times we talk about our Commissioners and we need to remind the public that they're out for the benefit of the public on a voluntary basis. That's nine (9) hours of waiting just to assure everyone of the concerns. We want to thank you for serving and for being here all day because we're not done yet but you are. So thank you. 87 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Bynum: I just wanted to take this opportunity to thank you, Tessie, I've learned a lot from you over the years. You finishing your eight (8) years on the Open Space and your patience is amazing and I just wanted to thank you from the bottom of my heart for the things you taught me and your dedication and commitment. Chair Furfaro: Any other further comments? Again, Mr. Jung, thank you very much. This is a high priority for this Council as you heard from the comments. Make absolutely sure it's a top agenda item for the next Open Space Commission to authorize a current appraisal and let's go from there. The motion to receive C 2012 -42 for the record, was then put, and unanimously carried. C 2012 -43 Communication (12/12/2011) from the Housing Director, requesting Council approval to decline the County's option to repurchase Unit No. 601, Hookena at Puhi, located at 2080 Manawalea Street, Lihu`e, Hawai`i, 96766, and to grant the owner a one -year waiver of the buyback restriction to allow a market sale by the owner for a period of one year: Mr. Kuali`i moved to approve C 2012 -43, seconded by Mr. Chang, and unanimously carried. C 2012 -44 Communication (1/04/2012) from the Chief of Police, requesting Council approval to purchase non - budgeted furniture for the Deputy Chiefs office with unexpended funds from account 001 - 1001 - 551.62 -01, Chiefs Office other small equipment, estimated at $9,000.00: Ms. Yukimura moved to approve C 2012 -44, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -45 Communication (1/06/2012) from the Chief of Police, requesting Council approval to expend $300,000.00 of Asset Forfeiture Funds for planning, designing and procurement assistance for a permanent Kawaihau Police Station, rather than the previously requested purchase of a modular building to be used as a temporary police station in the Kawaihau District: Mr. Kuali`i moved to approve C 2012 -45, seconded by Mr. Rapozo. Chair Furfaro: Anyone in the audience going to talk on this? Do you have any further communications Mr. Clerk on what three hundred thousand dollars gets us? for... Mr. Watanabe: All we have is this one short request asking Chair Furfaro: So it gives us planning and design basically? Mr. Watanabe: Yes. Chair Furfaro: Okay. Vice Chair Yukimura. Ms. Yukimura: Has a location been selected? Chair Furfaro: I don't see it in the communication, that's why I asked if that's all the information we have. Mr. Bynum. 88 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Bynum: I know in the past the Chief has talked to us about a site at Mahelona in cooperation with the State, but this is a different plan, and whether we approve this or not today, I would like to get follow up from the Chief about how this plan has changed. Because I'm just assuming it's still Mahelona, assuming is not always a good idea. Chair Furfaro: I'm willing to put it in your Committee since it's a Finance matter. Ms. Yukimura: Mr. Chair? Chair Furfaro: Go right ahead. Ms. Yukimura: I would like a delay on this until we know what the siting is. I don't want to authorize something for a site that we don't even understand or know why it was selected. Chair Furfaro: I think that's what I pretty much just said. Ms. Yukimura: Okay. Chair Furfaro: I'm willing to put this in the Finance Committee. Ms. Yukimura: Or we could. Chair Furfaro: Because it's a money bill. Ms. Yukimura: Yeah, alright. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Well, first of all I think it should be in my Committee but I'm not going to fight about that. The other thing is, I called the Department this morning to find out information. The project manager is Deputy Chief Mike Contrades, he won't be back until the middle of March. Chair Furfaro: Mid March? Mr. Rapozo: Yes. And the other two (2) Assistant Chiefs obviously are not available, so if we're going to defer this, it would have to be untill the end of March. I would even give the deputy chief some time upon his arrival back from the mainland, I would suggest the first Council Meeting in April. Chair Furfaro: And I just picked the Finance Committee based on the fact that all we're going to get is design and plans, we're not going to actually get into operating issues. Mr. Rapozo: That's fine and I don't know... I haven't heard anything. I mean there's been a lot of discussion about Mahelona, but nothing official has come out, so I wouldn't assume that it's at Mahelona. This may be moneys to look at a site as well, and so I think the deferral is a good thing. 89 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: Let's defer this to April 4 in the Finance Committee. Ms. Yukimura moved to refer C 2012 -45 to the April 4 Finance Committee Meeting, seconded by Mr. Bynum, and unanimously carried. C 2012 -46 Communication (1/11/2012) from Neil Rapozo, President, Kaua`i Ballroom Dance Club, Lihu`e Chapter, requesting Council approval of their donation of a public address system that will be used by the Department of Parks and Recreation and their sponsored organizations and clubs to promote and continue their educational and recreational activities: Mr. Kuali`i moved to approve C 2012 -46 with a thank -you letter to follow, seconded by Mr. Chang, and unanimously carried. C 2012 -47 Communication (1/25/2012) from the Housing Director, requesting Council approval to accept a gift of $100.00 from Mr. Roy Pegg for a homeless program and that the funds be given to the Kaua`i Economic Opportunity Outreach Care -a -Van program for provision of food for homeless persons: Mr. Kuali`i moved to approve C 2012 -47 with a thank -you letter to follow, seconded by Ms. Yukimura. Chair Furfaro: I do want to say that Mr. Pegg walked into my office one day as a visitor and wanted to make this contribution to our homeless effort, and he's a contractor himself on the mainland, but we will get off to him a thank -you letter for his contribution. The motion to approve C 2012 -47 with a thank -you letter to follow was then put, and unanimously carried. C 2012 -48 Communication (1/26/2012) from the Director of Finance, requesting Council approval to purchase non- budgeted, modular furniture in the amount of $50,000.00 to provide defined office work areas for the Division of Purchasing: Mr. Bynum moved to approve C 2012 -48, seconded by Mr. Kuali`i, and unanimously carried. C 2012 -50 Communication (1/25/2012) from the Planning Director, requesting Council's approval to expend FY 2012 Coastal Zone Management (CZM) Funds not to exceed $40,000.00 to replace an existing vehicle purchased with CZM Funding in 2003: Mr. Kuali`i moved to approve C 2012 -50, seconded by Ms. Yukimura, and unanimously carried. There being no objections, C 2012 -52 was moved to the end of the agenda. C 2012 -53 Communication (2/09/2012) from the Council Chair, requesting agenda time to discuss the timeline for proposed Charter Amendment Resolutions that will be submitted for consideration by the voters in the 2012 General Election: Mr. Rapozo moved to receive C 2012 -53 for the record, seconded by Ms. Nakamura. Chair Furfaro: Any discussion? 90 COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: Mr. Chair, were you going to brief us on the timeline. Chair Furfaro: Well, I was actually going to get your approval to do this and then put a new agenda item that will expand it a little bit. Ms. Yukimura: Can we refer it to a Committee? Chair Furfaro: I'm open to that too. Ms. Yukimura: I think it's very commendable that we get real clear about the timeline, and it's good to discuss it, and so the public knows it too, if we just refer it to Committee maybe next week. it to? CLAIMS: Chair Furfaro: Ms. Yukimura: COMMITTEE REPORTS: And what Committee would you like to refer Committee of the Whole. Ms. Yukimura moved to refer C 2012 -53 to the Committee of the Whole, seconded by Mr. Chang, and unanimously carried. C 2012 -55 Communication (1/24/2012) from County Clerk Ricky Watanabe, transmitting a claim filed against the County of Kaua`i by Daniel Funamura for damage to his vehicle, pursuant to Section 23.06 Charter of the County of Kaua`i: Mr. Kuali`i moved to refer C 2012 -55 to the County Attorney's Office for disuposition and /or report back to the Council, seconded by Mr. Rapozo, and unanimously carried. C 2012 -56 Communication (2/03/2012) from County Clerk Ricky Watanabe, transmitting a claim filed against the County of Kaua`i by Bernadette A. D'Amore, for damages to her personal property, pursuant to Section 23.06 Charter of the County of Kaua`i: Mr. Kuali`i moved to refer C 2012 -56 to the County Attorney's Office for disuposition and /or report back to the Council, seconded by Mr. Rapozo, and unanimously carried. A report (No. HTE 2012 -03) submitted by the Housing / Transportation / Energy Conservation & Efficiency Committee, recommending that the following be received for the record: "HTE 2012 -07 Communication (01/03/2012) from Committee Chair Yukimura, requesting agenda time for Mr. Ray McCormick, District Engineer, State Department of Transportation, Kaua`i District, to provide a briefing on the Long Range Transportation Plan," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. 91 COUNCIL MEETING FEBRUARY 15, 2012 COMMITTEE OF THE WHOLE REPORT: A report (COW 2012 -02) submitted by the Committee of the Whole, recommending that the following be received for the record: "COW 2012 -03 Communication (2/01/2012) from Council Chair Furfaro, requesting the presence of Barbara Coriell, Administrator, State of Hawai`i Employer -Union Health Benefits Trust Fund (EUTF), to make a presentation and provide a status update on the EUTF," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. A report (COW 2012 -03) submitted by the Committee of the Whole, recommending that the following be received for the record: "COW 2012 -02 Communication (1/31/2012) from Council Chair Furfaro, requesting agenda time for the Celia Mahikoa, Executive on Transportation, to present the County's plan to market and promote the Kaua`i Bus over the next two months. Included in the Agency's presentation is the availability of free bus rides for the participants in the "Tropic Care Kaua`i 2012" program," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. A report (COW 2012 -04) submitted by the Committee of the Whole, recommending that the following be received for the record: "COW 2012 -04 Communication (12/08/2011) from Council Chair Furfaro, requesting agenda time for Mr. Mike Yamane, Chief of Operations, Kaua`i Island Utility Cooperative (KIUC), to provide a presentation on KIUC's Strategic Plan and Overview through 2012," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. RESOLUTIONS: Resolution No. 2012 -16, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE BOARD OF ETHICS (Paul M Weil): Mr. Kuali`i moved to adopt Resolution No. 2012 -16, seconded by Ms. Yukimura, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -17, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE BOARD OF REVIEW (Craig A. De Costa): Ms. 92 COUNCIL MEETING FEBRUARY 15, 2012 Yukimura moved to adopt Resolution No. 2012 -17, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -18, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CHARTER REVIEW COMMISSION (James E. Nishida Jr.): Ms. Yukimura moved to defer Resolution No. 2012 -18 pending interview, seconded by Mr. Kuali`i, and unanimously carried. Resolution No. 2012 -19, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE POLICE COMMISSION (Alfredo Nebre Jr.): Ms. Yukimura moved to adopt Resolution No. 2012 -19, seconded by Mr. Kuali`i, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -20, RESOLUTION ESTABLISHING_A SCHOOL BUS STOP ON APAPANE STREET, ULU KO SUBDIVISION, LIHU`E DISTRICT: Mr. Bynum moved to adopt Resolution No. 2012 -20, seconded by Mr. Kuali`i, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -21, RESOLUTION ESTABLISHING NO- PARKING AT ANY TIME ALONG PORTION OF KOLOA ROAD, KOLOA DISTRICT: Mr. Kuali`i moved to adopt Resolution No. 2012 -21, seconded by Ms. Yukimura, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -22, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO DEFINITIONS OF "SHALL," "MUST," AND "MAY" Ms. Yukimura: Just a point of information, this is a Resolution, but because it's a Charter amendment, there needs to be a public hearing? COUNCIL MEETING FEBRUARY 15, 2012 Mr. Rapozo: There's no requirement, but just that it needs two (2) readings. Ms. Yukimura: Oh okay it needs two (2) readings. Chair Furfaro: As the introducer of the Resolution, I wanted to clarify something... every time we got into an item that these questions come up, we have a policy statement on how we interpret shall and may as explained in the County Code, Article two (2). Mr. Kuali`i: Mr. Chair, I'll restate my motion. Chair Furfaro: Thank you. Mr. Kuali`i moved for passage of Resolution No. 2012 -22 on first reading, that it be refer to the County Attorney for review as to form and legality, that a public hearing be set on March 28, 2012, and second reading by the Council on April 11, 2012, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Resolution No. 2012 -23, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE ESTABLISHMENT OF THE OFFICE OF THE COUNCIL ATTORNEY: Mr. Kuali`i moved for passage of approve Resolution No. 2012 -23 on first reading, that it be referred to the County Attorney for review as to form and legality, that a public hearing be set on March 28, 2012, and second reading by the Council on April 11, 2012, seconded by Mr. Chang. ahead. 93 Chair Furfaro: Any further discussion? Mr. Rapozo, go right Mr. Rapozo: As the introducer, I guess I'm not comfortable sending it to the County Attorney's Office based on the substance of the Resolution. I can see the first one, although the shall and may was one of the issues that is of concern. I'm not sure how we do this, I'm not sure if I'm able to request that it be reviewed by an external attorney, it's just because the substance of the Resolution itself does impact the County Attorney's Office. I'm not sure how to proceed with this. I guess my recommendation would be that we secure Special Counsel if in fact we're going to have it reviewed for legality and form. This Resolution was drafted by our legal analyst, our in -house legal analyst, it's not an opinion. I'm just very uncomfortable with the Resolution that will impact that office being reviewed by that office. I have a serious concern about that. Chair Furfaro: Further discussion? Mr. Bynum. Mr. Bynum: I can understand that misgiving; however, I think we have time and it might be (inaudible) to get the legal review and then determine if whether we want to get a second opinion. I'm just thinking out loud. 94 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: I concur with Councilmember Bynum. It could very well be that the County Attorney comes back and says it's fine as to legality and form. They may disagree with the policy decision but we would get that opinion and we can follow it or not. If they do say that there's legal defects, of course we should be responsible and get a second opinion, but it may come back okay as legality and form but not as to agreement with policy. Chair Furfaro: Any further discussion? Councilwoman Nakamura. Ms. Nakamura: I want to get some clarity, I know there were concerns, but what is the problem that this Resolution is attempting to address? floor. Chair Furfaro: Council Vice Chair Yukimura. Chair Furfaro: The introducer of the Resolution has the Mr. Rapozo: Thank you. It's simply stated in the Resolution. It's to give this body its own independent counsel as far the authority to seek legal opinions. Right now, although we have the legal analysts that are in our office, they're not empowered by our Charter to offer any legal opinions. Just in the experiences that I have had over the last year, I feel that this body, in order for the representation... (inaudible), I guess independent legal counsel; I think this is the best way to move forward. Ms. Nakamura: Thank you for the clarification, Councilmember Rapozo. I believe we have that power now to seek a legal opinion through Special Counsel. Mr. Rapozo: Correct, but the way it stands right now, it requires basically a supermajority, and then it requires to go out and hire Special Counsel, which if we did that on all the controversial issues we've had, we would have spent quite a bit of money this year. Ms. Nakamura: When I took a look at the Honolulu Charter, they allow the Council to appoint, authorize attorneys within the Office of Council Services to represent in Court litigation and to be Special Counsel. Mr. Rapozo: Yes, but it's only in a situation where the Council and the Administration is being sued and their positions are opposing, then the Council can appoint one of their legal analyst to become Special Counsel. But absent litigation, absent a lawsuit, absent the fact that the County Attorneys are representing the Administration where the Council's position is different, they're not allowed to do that. Ms. Nakamura: They're not being... Honolulu's? Mr. Rapozo: Honolulu, yes. Under their Charter, the only way that their Council can elevate their legal analyst to a Special Counsel position is if it's a litigated case, it's got to have a lawsuit filed against the County, the Administration and the Council, and the County Attorney's Office is tasked with 95 COUNCIL MEETING FEBRUARY 15, 2012 representing the Administration, and if the Council's position is opposing the Administration's position, then they can elevate their legal analyst up to a Special Counsel staff. It doesn't the issue... The bottom line right now, what we're seeing is that we're seeing opinions and this is just in my opinion and I think it's pretty clear and evident to many that... I believe that the County Attorney's Office acts as an advocate for the Administration. We've seen opinions come across that have been, and I'm not going to go into detail tonight, but you know there have been numerous cases where it's been proven. It's been evident that the County Attorney's Office is active advocates for the Administration's position and that's not their job. I think we heard Mr. Weil's depiction yesterday of the County Attorney telling him that... the County Attorney told him that he works for the Administration, and we cannot have that in this structural government. I think we've seen that in various opinions as far back as I can... you know I'll go back to the TVR opinions as we moved up to shall and may and to what's going on now with the Police Department. I just have an opinion that the County Attorney's Office as it sits today acts as an advocate for the Administration and that is not their function, that is not their function, and I think we've heard it on several testimonies of Commission appointees. I've asked the direct question, have you been led, yes. Have you been guided, yes. That's not the County Attorney's function. The County Attorney's function is to support the Commission, support the Council, and I just believe that in this term that that isn't happening. That in fact we're being... they're being advocates for the Administration's positions and that's not what their function is. This would alleviate that; this would create a true separation of power that in fact this Council could act independently of the Administration in the true sense. That in fact we would have our own legal counsel and legal opinions that if we wanted to create legislation coming out of here, we'd have the ability under the Charter, and the authority to move forward, and based on what this Council would like to do. Ms. Nakamura: Thank you Councilmember Rapozo for clarifying your concerns. Do we know what the other Counties do with respect to Council Services legal counsel? Do we have information on how they operate and what happens when the Administration's counsel and the Council Services legal counsel... let's say come up with two (2) separate opinions, then what? Mr. Rapozo: All the counties operate the same way. They all come under the Charter mandate of having a County Attorney. The Big Island is moving forward, they've actually asked for our language because they want to move forward in a structure that I'm proposing here. They want to move in that direction as well. They all have the same issues that we do. At our HSAC meeting that we discussed on the break, all the four (4) counties are going through the same things that we are here. That they have a Corp Counsel, but because they are appointed by the Mayors that there is that alliance with the Administration; they're all feeling the same way. Big Island has informed me that they'll be moving this year as well to try to separate the Council from the Administration. Chair Furfaro: Would you mind if I took the floor for a minute? Ms. Nakamura: Go ahead. Chair Furfaro: First of all, as you know I spend a lot of time on the Big Island and I did get a call from one of the Big Island Councilmembers that has been in dialog with Mr. Rapozo. One of the challenges they have is in their 96 COUNCIL MEETING FEBRUARY 15, 2012 Charter, they're not able to hire direct Special Counsel and so there's some need to get some pieces clarified. I wanted to let you know since Mr. Rapozo asked me to put this on the agenda, I wrote up a little pros, cons, and alternatives to hand out today. Obviously the pros for me is the item that Mr. Rapozo was referring to as having an unbiased legal opinion directed just for the Council, probably a shorter wait time for opinions to be developed, we would make the decision on who we would employ for that purpose, and have a certain amount of confidence that your attorney is acting in your best interest. The cons of course is the costly development on this area as paying for additional staff, spaces, salaries, attorney staff, and of course it depends on what types of attorney we hire, what their specialties are, what we might see in litigation fees, but the reality is we have a forty thousand dollar line item right now for our own Special Counsel that is in the budget. There'd be possible conflicts in handlings of opinions that maybe got some bad media exposure, might increase insurance cost, and obviously challenges between the Administration's Office of the County Attorney and ours. The other alternative is to have the Council Attorney that the Council employs only when the Council has a dispute with the County Attorney's Office. The Council Attorney can even be on contract as needed. There is another alternative which is the fact that working on a bill that we can put on the Charter and let the public answer the question about creating a Department of Council Services Legal. I'm not promoting any of those but if we're going to sit here and have this discussion, here's some of the facts and maybe we want to defer this. That's all it was. Vice Chair Yukimura. Ms. Yukimura: I appreciate that you've done that because a change... this is a pretty major change and structure, and I think it's worth a lot of thought. My initial thoughts are that the law is not something that should vary with the attorney who's interpreting it. I mean there's a certain methodology of rigorous analysis, case law, and etc. that should bring people more or less up to the same place if they're doing things professionally and ethically. If there is a difference then it should be of such major level that you actually go to court to decide it. That's how the structure is in Honolulu, apparently if... but to just get two (2) separate attorneys to justify two (2) separate opinions, to me is very problematic, and what's going to keep the Council Attorney from just interpreting it the way the majority of the Council wants it interpreted. Another alternative is to say that the Council can withdraw its approval of the County Attorney, its confirmation of the County Attorney which would more equalize the appointing power, sort of speak, that's another Charter amendment that could be made. Chair Furfaro: And I didn't develop a Charter amendment, I'm just saying that it's another option. Ms. Yukimura: Well I'm just saying that if you follow the logic of this suggested alternative, it would require a Charter amendment. Chair Furfaro: Yes. Ms. Yukimura: So I think there's a lot of different ways to look at this and I appreciate Councilmember Nakamura's basic question, what is the purpose of this? I mean it may seem to us... and Mr. Weil was very clear that his colleagues were okay as long as they agreed with his opinion and so it may be that the County Attorney is looking like they're just supporting the Mayorm but in 97 COUNCIL MEETING FEBRUARY 15, 2012 fact all it is we don't agree with his opinion. We could be in the same position of not recognizing a professional opinion because of our certain biases too. So to just have two (2) County Attorneys, I mean two (2) different attorneys could just create more problems actually than they would solve, in my opinion, so it's something that we need to look at carefully. Chair Furfaro: Mr. Bynum. Mr. Bynum: I'll chime in here. I guess my first thought is that I trust the ethics of the legal profession. It's frustrating often when you don't get an opinion the way you thought it should be, but I don't come from the premise or belief that the opinions that we get are biased. I don't think... because it's how two (2) people can look at the same set of facts and come up with a different conclusion. I haven't felt that the opinions were biased; I haven't felt like they've been taking a position at the Administration. Sometimes I like the opinions especially when they agree with my position, and other times I don't, but I've always respected them. So I do have confidence in our County Attorney and them being unbiased and they operate a legal firm and they have clients and they represent the interest of their clients. Sometimes I'm the client, sometimes the Council body is the client, and I don't think that's any different than a legal firm out in the private sector. They represent different clients and so in terms of making this Charter change, it would be a very substantial Charter change, it would overturn kind of the political culture here the way it's been for a very long time. Having said all of that, I'm more than prepared to vote for this on first reading because I think all members should have their ideas and their proposals given a full kind of serious treatment. And my assumption is that that means it would go to the County Attorney for legal review and that we would have a discussion and then you know we would have that public process open to the public before we made a final vote. Because our vote would put this on the ballot, that's a very substantial power that the Council has, and we should be very judicious in the use of it that's why we don't pass this in one (1) reading without discussion. I'm prepared to vote for this on first reading, assuming it goes through the normal process. Our last thought is we do have a mechanism to hire Special Council if we decide as a body that we need it, and I'm glad that we have that, and since I've been on the Council, I don't think we ever used it. I'd also like to hear from the County Attorney tonight what his take is on the process at least. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Couple things. First thing Councilmember Yukimura's assessment that two (2) different attorneys should rise to the same opinion if they do it right, I mean obviously if that was the case, we wouldn't have a need to have lawyers, we'd just have a judge. But I don't care what the issue is; you're going to have multiple opinions. You can frame your opinions to your client's desire, that's what lawyers do, JoAnn, you know that, you're a lawyer. I don't say that in a bad way. And the other thing about Paul Weil's comments, he was being facetious. I didn't take it as being serious that everybody's wrong if they disagree with me. I think he was being facetious, but he was quite clear as to his comment about the philosophical differences he had with the County Attorney that in fact the County Attorney is there to serve the Administration is what he had been told, by his own testimony. 98 COUNCIL MEETING FEBRUARY 15, 2012 As far as the costly expense, the way I'm envisioning it is that we wouldn't require that, we have the legal analyst here, we would obviously elevate one (1) of them, they're would be no additional space or whatever. And the salary, if we needed to bring a new attorney in, if we were going to hire a new attorney would be taken from the County Attorney's budget. So we would take an existing attorney's position from the County Attorney and move it, because they would have one (1) less client which is probably one (1) of the bigger, is our office. So we would basically relocate that county attorney position over to the Council Services. I think it can be done with a very low fiscal impact to the County budget and then finally let's put the Special Counsel to a test. Let's agree to hire Special Counsel to review this Resolution. It's not easy to get five (5) votes to hire Special Counsel on this Council and we all know that, and if it's not, let's do it for this. I mean let's... I'll do whatever I need to do, I'll make the appropriate motion and we'll hire, we'll see how long that process takes to hire Special Counsel and getting five (5) votes on this body just to hire Special Counsel to review this. I mean it's easy to say that, we have that opportunity but we've never done it, we've never done it because it's very difficult to get five (5) votes for anything on this Council or any Council. But that's just my frustration; obviously and you can sense it. we tried with the shall and may, we tried to get it in front of a judge, JoAnn, we tried, and we were stopped by our own attorney to get it in front of a judge for a true judicial review. We were stopped. I'm just saying and that's where the frustration comes in, we could have had a legitimate judicial review in front of the judge, but the judge ruled that we didn't have standing because there was an attempt by the County Attorney's Office to not allow it to go to get a proper judicial review. Ms. Yukimura: Mr. Chair? Chair Furfaro: Go right ahead. Ms. Yukimura: If the majority of the Council had wanted to get a declaratory judgment and we had gotten Special Counsel to represent the majority of the Council, I think the legal results could have been different. If there's a true judicial controversy where the Council is acting as a body, I think it would have been different and it actually worked. The system in my mind actually worked. I think that that opinion was competent and unless there was a majority of us who thought it was not and we wanted... and was that important to us to bring it I think if we had brought it as a Council, I think the Court would have allowed it. That's my speculation, but I think there was a difference when it was just two (2) individual Councilmembers versus a County Council. Mr. Rapozo: I can tell you, apparently you didn't read the judge's decision. It was simply because Councilmember Kuali`i and myself did not suffer a financial loss. It had nothing to do with majority of Councils. The ruling was that we didn't have standing because we did not suffer a financial loss based on that and regardless... My point is... Ms. Yukimura: And if you would have appealed it and you were right, you would have won, but... Mr. Rapozo: But maybe I'll ask for Special Counsel. Chair Furfaro: We've gone over this before because this Council was split three (3) ways. What the judge ruled on was you and Mr. Kuali`i 99 COUNCIL MEETING FEBRUARY 15, 2012 did not suffer and therefore did not have standing. The Council Chair disagreed with the opinion but I took it to the Cost Control Commission. The four (4) of you had voted for it but you wouldn't have gotten to a fifth vote to get a Special Counsel... Mr. Rapozo: My point. Chair Furfaro: We've had this discussion on that so (inaudible) I just chose to go a different option and thus reflects why I have a Resolution now about shall and may because every time we come to something, we don't lose focus on the interpretation. I also want to say that Paul yesterday was... he showed philosophical differences. He also pointed out if people didn't agree with him, then the reality... you know we had a Pericles today earlier, the father of democratic principles, and then we also have the view that Caesar was emperor. So we have discussion now that's dealing where do we want to go with this Resolution, and on that note, I would like to call up the County Attorney for his comments. There being no objections, the rules were suspended. Chair Furfaro: Al, the main focus of this question is if your office can handle this question in a fair and equitable manner to get us some legal interpretations. ALFRED B. CASTILLO, COUNTY ATTORNEY: For the record, Al Castillo, County Attorney. Chair, should we break for dinner now. Chair Furfaro: We actually can do that. Mr. Castillo: And can I... when we return... Chair Furfaro: I don't think that would be unreasonable. Mr. Castillo: Thank you. Chair Furfaro: Members, we're going to continue on this item when we come back. There being no objections, the Council recessed at 6:31 p.m. The Council reconvened at 7:33 p.m., and proceeded as follows: BILLS FOR FIRST READING Proposed Draft Bill (No. 2422) — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE: Mr. Bynum moved for passage of Proposed Draft Bill No. 2422 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 14, 2012, and that it thereafter be referred to the Planning Committee, seconded by Ms. Yukimura. Chair Furfaro: Any discussion members? Go right ahead. 100 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Nakamura: Excuse me, there is a floor amendment and is this the appropriate time to introduce the amendment? Chair Furfaro: Yes. Ms. Nakamura: We received comments through the Planning Commission review process and we incorporated some of the comments, the two (2) comments, into a floor amendment that's before you. Ms. Nakamura moved to amend Proposed Draft Bill No. 2422 as circulated, seconded by Mr. Kuali`i. Chair Furfaro: This is the amendment that's circulating for us all now. Comments, members? Mr. Bynum. Mr. Bynum: I hate to complicate it because I have no problem with the substance of this, but is this the first time that we've defined public shared use path in the County? Ms. Nakamura: To answer your question, I believe this is the first time it's being defined in the Comprehensive Zoning Code Ordinance. Mr. Bynum: Well I just think it's important to get that definition correct and I think using the word bikeway might be a problem. Ms. Nakamura: Oh okay. Mr. Bynum: But we can do this now and we can deal with it later after we do some research. Chair Furfaro: This is first reading. Ms. Nakamura: And I believe during the... and I see what you're referring to and definitely we can look at the language there. We did receive comments from Thomas Noyse and Doug Haigh in the process, but we can revisit it. Mr. Bynum: But I think it's fine to pass this now. Chair Furfaro: Any further discussion? The motion to amend Proposed Draft Bill No. 2422 was then put, and unanimously carried. The motion for passage of Proposed Draft Bill No. 2422 as amended on first reading was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. 101 COUNCIL MEETING FEBRUARY 15, 2012 Proposed Draft Bill (No. 2429) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 26, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO SPECIAL IMPROVEMENT FINANCING BY COMMUNITY FACILITIES DISTRICTS: Mr. Bynum moved for passage of Proposed Draft Bill No. 2429 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 14, 2012, and that it thereafter be referred to the Committee of the Whole, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Proposed Draft Bill (No. 2430) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAX: Mr. Kuali`i moved for passage of Proposed Draft Bill No. 2430 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 14, 2012, and that it thereafter be referred to the Committee of the Whole, seconded by Ms. Yukimura, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. There being no objections, discussion on Resolution No. 2012 -23 was continued. Resolution No. 2012 -23, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE ESTABLISHMENT OF THE OFFICE OF THE COUNCIL ATTORNEY There being no objections, the rules were suspended. Chair Furfaro: Al, you heard some of the comments around the table, and in particular, I gave you the lunch period to come back to us with your response. Mr. Castillo: Okay, thank you. Council Chair, Councilmembers, good evening. I already had my response ready and I went home to see my wife and see a smiling face and tell her hello. smile. Chair Furfaro: I smile. Mr. Castillo: I'm not implying anything. Chair Furfaro: And I'm facilitating seven (7) individuals, I Mr. Castillo: It's the day after Valentine's Day. Anyway, Al Castillo, County Attorney. As the discussion was going through, it reminds me of 102 COUNCIL MEETING FEBRUARY 15, 2012 the fabric that I'm made of, and you talk about moral fabric, you talk about integrity and what it is based on. And it's not for me to say, it's for the fine people that I serve. I've been with Council Chair for many years, he led Habitat for Kaua`i and I was on his board and I saw his experiences, leadership. I've been with Tim Bynum for many years as a Prosecutor, I fought vigorously for victims of sexual assault and we were the pioneers way back then. Every time I see Councilmember Yukimura, I just think of that energy that she has and seeing her many years ago in the reigns of the fireworks of Fourth of July and ask her are you really going to run again, my goodness. And Dickie Chang standing out by himself in the 1980s in front of Puhi, so I've known many of you a very long time and you're the ones that judge my character, my moral fiber, the fabric that I'm made of. And one of the things that I do constantly and I preach in the office that I lead the County Attorney's Office is to treat everyone with dignity and respect. That is the utmost importance in the department that I run. I go back to 2008 when I was asked to take the Office of the County Attorney and you know I didn't... during that time I really didn't do any campaigning for the incoming Mayor Bernard at that time and they asked me and it was a big decision to come back to county government. One of the things is I left a successful practice, but not a day goes by that I do cherish the approval of the County Council. You approved my appointment and so from me to you, and you've always known that I serve all of you and the Mayor, the Boards of Commissions, the County Council, we do our opinions as we do our research. We don't construct and try to come up with an opinion that somebody will like or will not like, and a lot of times what we do is we give you the entire (inaudible). The Charter puts me in a really... puts me, myself as the County Attorney, in a very difficult position. It's similar to the Attorney General. The laws put us in a difficult position because we represent everybody and that's where I sit today. I represent everyone and I take my job as seriously as all of you take yours. Yesterday I heard something at the Council where something was said that was very concerning to me, and today I hear that... what I heard was that there's evidence that the County Attorney's Office is an advocate to the Mayor and things like that. These are serious statements and these are statements that touch upon the fine intelligent men and women that I work with at the County Attorney's Office. The attorneys that are employed in your County are seasoned attorneys that have lived here for a long time, that are very dedicated. They've stuck with me for the past three (3) years, we have not only seasoned attorneys, but as compared and contrasted to the past, is that we have basically six (6) attorneys that are litigators and that's a real big difference because from our advantage point, we do have all of the necessary tools to provide the best work we can for... in this case, the Council. Now let's talk about democracy. The students at Kekaha came today and they're learning about democracy, and the students at Waimea High came here today and that's the same school that I went to and I graduated in 1973. But I remember a couple of years ago when Councilmember Bynum was talking about democracy, basically the Charter states that five (5) of seven (7), you have to have a super majority for special counsel, and why is that? It's because the Charter recognizes that it is an important endeavor, and if you cannot get the votes, then it's outside of my realm, but it is your right to go get the votes. If you feel that there is evidence of bias or to contest a legal opinion, you know, I'm not going to make any judgments, but to contest a legal opinion and to fight the legal opinion by suing other Councilmembers, what does that say? You in your own minds make that determination of what that says. However, if a matter comes before the County Attorney's Office, we do what we 103 COUNCIL MEETING FEBRUARY 15, 2012 need to do in terms of analyzing the situation and doing things the best that we can. The legal opinions that are released to you and to any of the Boards and Commissions, to the Mayor, to the Departments, what happens is it goes through a review process. There's never a time when I would say go and construct an opinion that says that the outcome... where we work towards an outcome. We do the necessary research and we give you the wide range of... and if you do not agree with the opinion, that's exactly what it is, but I can guarantee you that the opinion that you get is the best possible opinion that our office with all of its intelligence, I would say years of experience, can produce for you. I am privileged to work with the deputies and the staff that I work with. Now, where is this leading to? In terms of Councilmember Rapozo's resolution regarding the counsel for Council, we will give it the legal review as we do all legal reviews, and you decide whether or not this should go through. There's no reason here that I know of that justifies going to Special Counsel because it's not a matter that we cannot handle. Now if you read the opinion and if you have any (inaudible) about it, you have any comments, come back and question us, why we came out with an opinion. Like I said, there's no special circumstances here, no conflict of interest. We serve the Council and we serve it to the best of our ability. Chair Furfaro: So Al, again, those are your answers to the question before the colleagues here as to the County Attorney's ability to give us their fair and objective review of this resolution as to legality and form, and you feel that your office can in fact do that? Mr. Castillo: Yes. Chair Furfaro: Vice Chair Yukimura. Mr. Yukimura: Al, thank you for sharing. As you say you serve many people from the Mayor and the Council to the Police Commission and everybody in the County. So you serve many people but who is your loyalty to? Mr. Castillo: My loyalty is to the County of Kauai. Coming back to the County and having this opportunity, my goal is, was and still is...it's an ongoing goal to provide the best that I can for the citizens of Kaua`i. I been born and raised here, so I don't... the one thing that I didn't want to be is, and what I made known to the Administration when I was interviewed, is I am not going to even sit down and go through any interview process if I'm not independent because the County does not need a puppet County Attorney. What the County needs is a County Attorney that will be able to assemble a strong group of attorneys to provide the County with the best possible representation and in my many years of being privy to what's going on with the county since 1979, I strongly believe in my heart of hearts that we have a very strong County Attorney's Office now that I'm really proud of. Ms. Yukimura: I think that's a good answer. Could you also say that when it comes to interrupting the law, your loyalty is to the law? Mr. Castillo: Yes, and as far as interpreting the law, it is whatever research we come out with is the research. If we are asked to opine regarding the wisdom with going one (1) way as opposed to wisdom of going the other way, then we will do that for you, but that would be our opinion based on the law and based on the circumstances that are presented to us. 104 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: Who are the six (6) attorneys with trial experience in your office? Mr. Castillo: Myself, Marc Guyott, Jennifer Winn, Jodi Sayegusa, Mauna Kea Trask, Justin Kollar. Ms. Yukimura: Okay, thank you. Thank you very much. Chair Furfaro: I'm going to let each of you ask one (1) question again, then I want to move on calling for the vote on this. Councilmember KipuKai, did you have a question? Mr. Kuali`i: Not at this time. Chair Furfaro: Thank you. Mr. Chang? Mr. Chang: No sir. Chair Furfaro: And I'm going to wait for Mr. Rapozo. Mr. Bynum? Mr. Bynum: No. Chair Furfaro: Councilwoman Nakamura? No. Councilmember Yukimura? Councilmember Rapozo? Mr. Rapozo: I don't have any more questions. Chair Furfaro: Thank you very much for your responses. Mr. Castillo: You're welcome. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: We have on the floor a question regarding the establishment of the Office of the Council Attorney and an approval is being requested on first reading, forward this to the County Attorney to review as to form and legality. Is there any further discussion before I ask for a roll call vote? Vice Chair Yukimura. Ms. Yukimura: Like Councilmember Bynum, I'm not clear where I stand on this but I'm not going to oppose sending it off for County Attorney review and public hearing, and I reserve my final vote for the second reading. Chair Furfaro: Okay. Any further discussion before I call for roll call vote? My feelings are similar to Vice Chair Yukimura and Mr. Bynum and I'm not going to prevent it from going over for review of form and legality, but I reserve the long term on my vote. The motion to approve Resolution No. 2012 -22 on first reading, refer to the County Attorney for review as to form and legality, set for public hearing on 105 COUNCIL MEETING FEBRUARY 15, 2012 March 28, 2012, and second reading by the Council on April 11, 2012, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL — 0. Mr. Rapozo: Mr. Chair? Chair Furfaro: Yes. Mr. Rapozo: I do have a question and I'm not sure on the procedure regarding ES... Chair Furfaro: Excuse me, I want to make sure we have your attention. Members, Mr. Rapozo is posing a question that you maybe be alertly want to be aware of. Go ahead. ES -524 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kaua'i County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the Mayor's authority to exercise direct supervision over or discipline of the Chief of Police. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. Mr. Rapozo: Regarding ES 524, I did request County Attorney's opinion which I did receive and I wanted to make a motion and I'm not sure I believe it has to be done in open session but I would... I wanted to make a motion that we release that opinion to the public. It is an opinion of law, it is not an opinion of any personnel matter. It is a specific opinion as to an interpretation of the Charter. Chair Furfaro: We're in recess until I can have all members' attention. I've asked once, I've asked twice, and I've been interrupted in my procedures. I want members to know that I'm really a nice guy, but we have to pay attention to various colleagues speaking on a matter especially on about releasing an opinion. You have the floor Mr. Rapozo. Mr. Rapozo: Thank you. Let me restate what I stated. ES 524 involves a request of a County Attorney's opinion which I had submitted and that request had been expedited, the opinion which we did get I believe a day later, and I had hoped today to make a motion on this floor with this Council to make that opinion public simply because it is an opinion of law. It is not involving any personal matter, it's simply an interpretation of the authority to the Mayor, and I would ask if in fact... I'll just state that motion that we release that opinion to the public. Mr. Rapozo moved to release the County Attorney's opinion on ES 524 to the public, seconded by Ms. Yukimura. Chair Furfaro: Vice Chair Yukimura. 106 COUNCIL MEETING FEBRUARY 15, 2012 Ms. Yukimura: It's my understanding that our procedure is to meet with the County Attorney first before we vote on any motion to release. That's my understanding. Mr. Rapozo: I don't know what the... I thought it required a majority of the Council vote. The County Attorney is here right now; we can consult with him right now if you have any questions. Again, that opinion is specific to the interpretation of the Charter, it's not... Ms. Yukimura: It's a County Attorney opinion. Chair Furfaro: Mr. Bynum, I'll recognize you before I give the County Attorney... Mr. Bynum: I wanted to ask him... Chair Furfaro: Al, I want to make sure you understand a request for an opinion was forwarded to your office via the Chair. The responses came back to the Chair to Mr. Rapozo. He's asking to have that release of opinion of law made public, and then I want to recognize Mr. Bynum. Do you want to go first and then have Mr. Bynum follow up? There being no objections, the rules were suspended. Mr. Castillo: Yes Council Chair. For the record, Al Castillo, County Attorney. I believe that, and you can correct me if I'm wrong but I believe that the Council has established its rules and in the rules it does say after consultation with the County Attorney. So I'm just restating the rules that... Chair Furfaro: In the recent changes, yes. Mr. Castillo: Yes. Chair Furfaro: Mr. Bynum. Mr. Bynum: I just wanted to talk about process. I've been an advocate for releasing County Attorney opinions for a long time and I'm inclined to vote that way but I do want to get feedback from the attorney before I make that vote. I was just going to ask him but... and I recently have also received an opinion that's not on the agenda, but I wanted it circulated to the members. I believe I have the authority to do that and I hope it has been. I also want to know what's the process by which we release an opinion that doesn't necessarily have an agenda item, so my questions are purely about process. Chair Furfaro: I think in the new rules they are after consultation and that's how we... were just stated by the County Attorney and on that note, I'm going to take a break so we can have some discussion with our analyst. There being no objections, the Council recessed at 8:01 p.m. The Council reconvened at 8:06 p.m., and proceeded as follows: 107 COUNCIL MEETING FEBRUARY 15, 2012 Chair Furfaro: Al, I think you understand the question that's been posed, there's some interpretations about needing to go into Executive Session which is (inaudible) to hear any concerns that you have and when we come out, you can release that if it is the desire of the majority of the Council but please... Mr. Castillo: Yes, it does say after consultation and I'm not... you know you're the Chair and I have... what that consultation means and in what form... it just has to be after consultation. Chair Furfaro: And it's not based on a super majority, it's just based on a majority? Mr. Castillo: Yes. Chair Furfaro: After consultation... So members after hearing that from the County Attorney, we can have this dialog. Go ahead Mr. Rapozo. Mr. Rapozo: You feel more comfortable if we had the consultation as a group in Executive Session? Or are you comfortable right now saying... Mr. Castillo: Consultation on the open floor is not a wise process. Mr. Rapozo: That's fine. Because I can wait. Mr. Castillo: Yes, because I cannot... and there might be consultation in one of the Executive Session things we have... agenda items that we have today that might cover that anyway that your motion can be made again. Mr. Rapozo: Okay. Thank you. Chair Furfaro: (inaudible) especially being the Chair, I allowed us to review the rules, that's what the rules said and let's go into Executive Session, we come out of it and if we choose to release it, we'll release it. Vice Chair Yukimura. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura: So Mr. Chair, I think procedurally it might be best if I withdraw the motion to... what was it, to approve release? Mr. Rapozo withdrew his motion to release the County Attorney's opinion on ES 524 to the public, Ms. Yukimura withdrew her second. There being no objections, the rules were suspended. Mr. Castillo: Council Chair, Councilmembers, Al Castillo, County Attorney. With your permission, Chair, can I read all of the Executive Session items? COUNCIL MEETING Chair Furfaro: ES 524 first. Mr. Castillo: EXECUTIVE SESSION: 108 FEBRUARY 15, 2012 Read them all, but I have a request to take Yes, thank you. ES -521 Pursuant to HRS sections 92 -4, 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 on Contract No. 8475 between Lawai`a Kaua`i LLC and the County of Kaua`i . The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. ES -522 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an executive session with the Council to provide the Council with a briefing on the retention of special counsel to represent the Board of Ethics in BOE 11 -003 and BOE 11 -004 and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. ES -523 Pursuant to Hawai'i Revised Statutes Sections 92 -4, 92- 5(a)(4), and Kaua'i County Charter Section 3.07(E), the Office of the County Attorney, on behalf of the Council, requests an executive session for Council to consult with the County Attorney regarding the Council's release of the County Attorney's written legal opinion dated January 17, 2012, regarding the delegation of fee setting for Wailua Golf Course and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and /or liabilities of the Council and the County as they relate to this agenda item. ES -524 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kaua'i County Charter, the Office of the County Attorney, on behalf of the Council, requests an executive session with the Council to provide the Council with a briefing on the Mayor's authority to exercise direct supervision over or discipline of the Chief of Police. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to convene in executive session for ES -521, ES -522, ES -523 and ES -524, seconded by Mr. Bynum, and carried by the following vote: FOR CONVENING IN EXECUTIVE SESSION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro AGAINST CONVENING IN EXECUTIVE SESSION: None EXCUSED & NOT VOTING: None There being no objections, the Council recessed at 8:12 p.m. TOTAL — 7, TOTAL — 0, TOTAL— 0. 109 COUNCIL MEETING FEBRUARY 15, 2012 The Council reconvened at 10:07 p.m., and proceeded as follows: C 2012 -52 Request from the Office of the County Attorney for authorization to expend funds up to $50,000.00 to retain special counsel to represent the Board of Ethics in BOE 11 -003 and BOE 11 -004 and related matters: Mr. Bynum moved to approve C 2012 -52, seconded by Ms. Yukimura. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I was just going to try to make the motion to approve twenty -five thousand dollars ($25,000.00). I understand the motion is to approve the fifty thousand (50,000), so I'll just make a comment that if we cannot get the fifty (50), I'll entertain an amended motion to twenty -five (25). Chair Furfaro: Okay. Any further discussion? Vice Chair Yukimura. Ms. Yukimura: It's up to fifty (50), I mean and... the County Attorney said that he will instruct the process in terms of frugality and accountability. Chair Furfaro: I heard him as well, but I don't remember in my ten (10) years if we approve the maximum amount that they ever spent less. I just want to make sure that you understand the requirement for the County Attorney's Office to review billings and so forth if we approve this today. There being no objections, the rules were suspended. Mr. Castillo: Yes and we do... I do in my three (3) years have instances where Special Counsel has spent less and we have had leftover money because of my oversee of the contracts, just to let you know Council Chair. Chair Furfaro: I think my comment was meant to remind you... okay... and seven (7) years prior to that, they always ask for more but any way we have a motion and a second. JoAnn's comment is well taken by the County Attorney about oversight and so let's call for the roll call. The meeting was called back to order, and proceeded as follows: The motion to approve C 2012 -52 was then put, and carried by the following vote: 110 COUNCIL MEETING FEBRUARY 15, 2012 APPROVAL: Bynum, Chang, Kuali`i, Yukimura, Furfaro AGAINST APPROVAL: Nakamura, Rapozo EXCUSED & NOT VOTING: None TOTAL — 5, TOTAL — 2, TOTAL — 0. ADJOURNMENT. There being no further business, the meeting was adjourned at 10:10 p.m. Respectfully submitted, \ds Go RICKY WATANABE County Clerk