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HomeMy WebLinkAbout05/23/2012 Regular Council MeetingCOUNCIL MEETING May 23, 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, Historic County Building, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, May 23, 2012 at 10:29 a.m., and the following members answered the call of the roll: Honorable Honorable Honorable Honorable Honorable Honorable Honorable Tim Bynum (excused at 4:50 p.m.) Dickie Chang KipuKai Kuali`i Nadine K. Nakamura Mel Rapozo JoAnn A. Yukimura Jay Furfaro, Council Chair APPROVAL OF AGENDA. Mr. Chang moved for approval of the agenda as circulated, seconded by Ms. Yukimura, and unanimously carried. MINUTES of the following meeting of the Council: Public Hearing of May 9, 2012 re: Bill No. 2433 and Bill No. 2434 Mr. Chang moved for approval of the minutes as circulated, seconded by Mr. Rapozo, and uanimously carried. Council Chair Furfaro: Next we are going to the Consent Calendar. We have Consent Calendar items C 2012 -158, C 2012 -159, C 2012 -160, C 2012 -161, and C 2012 -162. Is there anyone that wishes to speak on those specific items at this time? Is there anyone that wishes to speak on any agenda item before we start the meeting at this time? Come right up, Ken. CONSENT CALENDAR: C 2012 -158 Communication (04/27/2012) from the Director of the Office of Economic Development (OED), transmitting for Council consideration a proposal to establish an Electric Vehicle (EV) Charging Public User Fee, Waiver of the Fee, and Designation /Enforcement of Restricted Parking for Charging Station Use: Mr. Rapozo moved to receive C 2012 -158 for the record, seconded by Mr. Chang. C 2012 -159 Communication (05/07/2012) from Councilmember Nakamura, providing written disclosure on the record of a possible conflict of interest relating to the Mayor's Office — Boards and Commissions Budget (all line items) in Bill No. 2431 (Proposed Operating Budget for Fiscal Year 2012- 2013), because her husband's law firm performs legal services for this Office, and that she is recusing herself from deliberation on these items: Mr. Rapozo moved to receive C 2012 -159 for the record, seconded by Mr. Chang. C 2012 -160 Communication (05/09/2012) from Council Vice Chair Yukimura, providing written disclosure of a possible conflict of interest relating to "Boys and Girls Club — Waimea" line item contained in "Special Projects" (Account No. 001 - 0101 - 512.35 -00) in Bill No. 2431 (Proposed Operating Budget for Fiscal COUNCIL MEETING 2 May 23, 2012 Year 2012 - 2013), clue to her position on the Advisory Board, and that she is recusing herself from deliberation on this item: Mr. Rapozo moved to receive C 2012 -160 for the record, seconded by Mr. Chang. C 2012 -161 Communication (05/16/2012) from Councilmember Chang, transmitting for Council consideration, amendments to Section 19 -1.3 and Section 19 -1.4, Kaua`i County Code, 1987, as amended, regulating the use of tobacco products in all County Parks: Mr. Rapozo moved to receive C 2012 -161 for the record, seconded by Mr. Chang. C 2012 -162 Communication (05/16/2012) from the County Attorney, transmitting for Council consideration, a Resolution authorizing the acquisition by eminent domain of the fee simple interest in lands situate at Waipouli for public use (pedestrian and bicycle path): Mr. Rapozo moved to receive C 2012 -162 for the record, seconded by Mr. Chang. Council Chair Furfaro: Any further discussion? Mr. Chang? Mr. Chang: Chairman, our delegation is still here. Council Chair Furfaro: They are planning to stay a while and listen to procedures. Mr. Chang: Would you mind explaining to them what is the Consent Calendar and how that works? Council Chair Furfaro: Why do you not do that, sir? You have the floor. Mr. Chang: Thank you, Dickie Chang, for the record. The Consent Calendar is if anybody does not want to stay for the entire agenda, they have three minutes to speak on any of these agenda items. When the item comes back later on through the day, they cannot testify. So in this case when our speaker Mr. Taylor speaks, he has three minutes. We cannot answer him and engage back. So that is what we have as our County rules that people, in the interest of time, can come up over here and state their peace and then they can go about the rest of their day. Thank you, Chairman. Council Chair Furfaro: Thank you. There being no objections, the rules were suspended. Council Chair Furfaro: Ken, you have the floor. If you can, reference the agenda item that you wish to speak on now. KEN TAYLOR: Thank you, yes, Chair and Members of the Council, my name is Ken Taylor. I would like to speak on Resolution No. 2012 -40, proposing a Charter Amendment relating to terms set for County Councilmembers. As you know I spoke last week on this issue and I am certainly in favor of a four -year term but only if it is split. But one of the issues that has come this week that was troubling to me was that you were looking at the possibility of eliminating the term limits that were set a few years ago and start the clock over. I am totally opposed to that and I think that for this to move forward and to have any chance of passing, it has to include the term limits that were originally set, plus making the 4 -3 split, and how elections move forward in the future. So I hope you will take those things into consideration when you address this issue. Thank you. COUNCIL MEETING 3 May 23, 2012 Council Chair Furfaro: Thank you, Ken. It is my intent we will have an executive session later this morning on this item, and then come back after we have had a briefing from the County Attorney. Thank you. Anyone else that wishes to speak on the Consent Calendar? There being no objections, the meeting was called back to order, and proceeded as follows: The motion to receive all the items on the Consent Calendar for the record was then put, and unanimously carried. F. COMMUNICATIONS: C 2012 -163 Communication (05/02/2012) from the Director of Personnel Services, transmitting for Council information, the quarterly report relating to vacancies, new hires, transfers, reallocations or promotions approved within the County as of March 31, 2012, pursuant to Section 19 of Ordinance No. B- 2011 -732 (Fiscal Year 2011 - 2012). Additional information regarding positions established is also provided: Mr. Kuali`i moved to receive C 2012 -63 for the record, seconded by Mr. Chang. Council Chair Furfaro: Members, do we have any discussion on this item? Mr. Rapozo. Mr. Rapozo: I just wanted to state that as of March 31, 2012 there is 144 vacancies here in the County, and the reason I bring that up is, Mr. Chair, last time you made a comment regarding the vacancies in the County. I believe you were unfairly criticized following that because the numbers may have changed, but the information that you had responded with was off of the report that we had received. So I just wanted the public to understand that we operate off of the information we are provided. This information is for the period ending March 31, 2012, which is relatively recent. As of that date, we have 144 vacancies in various positions, and in fact this is a public document. So if anyone is interested in seeing...they can request it from the Council, and we can provide that for them. Council Chair Furfaro: Thank you, again, for pointing that out, Mr. Rapozo. Councilmember Nakamura. Ms. Nakamura: This is a follow -up for staff. I just wanted to get some clarification on the communication from the Director of Personnel Services. There are two categories, Public Works Project Fund and Building Revolving Fund with vacancies, and I wanted to just get some follow -up and clarification on the numbers there presented. Council Chair Furfaro: Okay, so the first point as the Garden Island took commentary from the members of the Administration from my visiting the Salary Commission on some of the vacancies, as you can see, as Mr. Rapozo pointed out, these are the facts as presented to us by the Administration. They are required to notify us within 15 days of the vacancies. But as you can see, we are still working on a report that is almost two months' old. This is the most current information. We have a commitment that they would encourage becoming more accurate. But as COUNCIL MEETING 4 May 23, 2012 of the time March 31, 2012, we have to compare apples with apples. The number of vacancies reported in there is coming off of their report, not a report that they later do down the road that indicates some of the positions have been filled. Also on that, we are going to send a communication on Councilmember Nakamura's two questions revealing vacancies that she had indicated that showed up on the list dealing with... and if you could state that one more time, go right ahead, you have the floor, so we can send that communication over to the Mayor's Office. Ms. Nakamura: and Building Revolving Fund — Council Chair Furfaro: further discussion? Yes. So it is Public Works Project Fund — 65 vacancies 6 vacancies. Yes, so we want to get clarity on those items. Any Mr. Kuali`i: Mr. Chair, I just wanted to make a point that this quarterly vacancy report is a result of a proviso in the budget, Section 19 from this current year, and in the coming year that proviso was amended to be even more thorough and in -depth in the reporting. And besides the Vacancy Report, there will be a report on all County positions so we can reconcile what is vacant, what is not, and look quarter -to- quarter the change from vacancies to being filled and maybe being vacant again. In addition to the All County Positions Report and the Vacancy Report, there will be also a special report on the positions that are within transition. Those are the positions that are new hires, transfers, reclassifications, reallocations, and approved promotions. So I am looking forward to next year, to us having even greater information on the item that is our biggest item in the budget and that is the labor cost. Thank you, Mr. Chair. Council Chair Furfaro: It would not be fair if I did not note that this report for the quarter ending March 31, 2012 came over on May 2, 2012, which is now in compliance to the verbal request that I made "within 30 days, " but the goal is 15 going forward. Any further discussion? Any testimony from the public? The motion to receive C 2012 -163 for the record was then put, and unanimously carried. Council Chair Furfaro: Please note the questions that are going over from the staff. C 2012 -164 Communication (05/03/2012) from the Mayor, requesting Council approval to accept a donation from Longs Drug Store in Kapa'a of assorted Christmas merchandise valued at $20,000, which will be used for programs sponsored solely by the County or in partnership with non - profit organizations: Mr. Kuali`i moved to approve C 2012 -164 with a thank -you letter to follow, seconded by Mr. Chang. Council Chair Furfaro: Yes, a sincere thank you because obviously when it comes around time for Christmas and the celebration we do here, the donation directed at the Mayor and the Administration is very well received and received as well by the Council. The motion to approve C 2012 -164 with a thank -you letter to follow was then put, and unanimously carried. COUNCIL MEETING C 2012 -165 Communication (05/03/2012) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend $7,276.00 of Federal Highway Safety Funds from the State of Hawai`i, Department of Transportation, to be used for travel, internet access, and training: Mr. Chang moved to approve C 2012 -165, seconded by Mr. Chang, and unanimously carried. RICKY WATANABE, County Clerk: Next items, Mr. Chair, we will be skipping C 2012 -166, C 2012 -167, C 2012 -168, C 2012 -169, and C 2012 -170 on page 3. Those require executive sessions first, so we can return back to those, which brings us to Claims on page 3. G. CLAIM: - 5 - May 23, 2012 C 2012 -171 Communication (05/03/2012) from the County Clerk, transmitting a claim filed against the County of Kaua`i by Richard L. Booth, Sr., for medical expenses (incurred and future), loss of income, and general damages, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Kuali`i moved to refer C 2012 -171 to the County Attorney's Office for disposition and /or report back to the Council, seconded by Mr. Chang, and unanimously carried. COMMITTEE REPORTS: ECONOMIC DEVELOPMENT & RENEWABLE ENERGY STRATEGIES COMMITTEE REPORT: A report (No. CR -EDR 2012 -04) submitted by the Economic Development & Renewable Energy Strategies Committee, recommending that the following be received for the record: "EDR 2012 -06 Communication (04/12/2012) from Committee Chair Chang, requesting the presence of George Costa, Director of Economic Development, and Bob Craver, Race Director for The Kaua`i Marathon, to provide an update on the 2012 Kaua`i Marathon," Mr. Rapozo moved for approval of the report, seconded by Mr unanimously carried. . Kuali`i and PROGRAMS FINANCE /PARKS & RECREATION /PUBLIC WORKS COMMITTEE REPORTS: A report (No. CR -FPP 2012 -07) submitted by the Finance /Parks & Recreation /Public Works Programs Committee, recommending that the following be received for the record (note: This report was deferred at the May 9, 2012 Council Meeting): "FPP 2012 -07 Communication (04/26/2012) from Committee Chair Bynum, requesting the presence of the Director of Finance and Real Property Assessment Division to provide a briefing on matters regarding real property taxes," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. COUNCIL MEETING 6 May 23, 2012 A report (No. CR -FPP 2012 -08) submitted by the Finance /Parks & Recreation /Public Works Programs Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2434 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 12 OF THE KAUAI COUNTY CODE - 1987, AS AMENDED, ENTITLED "BUILDING CODE," Mr. Bynum moved for approval of the report, seconded by Mr. Kuali`i, and unanimously carried. (See later for Bill No. 2434, Draft 1) COMMITTEE OF THE WHOLE REPORT: A report (No. CR -COW 2012 -12) submitted by the Committee of the Whole, recommending that the following be referred to the Full Council: "Resolution No. 2012 -40, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE TERMS SET FOR COUNTY COUNCILMEMBERS," Mr. Kuali`i moved for approval of the report, seconded by Ms. Yukimura, and unanimously carried. (See later for Resolution No. 2012 -40) RESOLUTIONS: Resolution No. 2012 -22, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO DEFINITIONS OF "SHALL," "MUST," AND "MAY ": Mr. Rapozo moved for adoption of Resolution No. 2012 -22, seconded by Mr. Kuali`i. Council Chair Furfaro: I understand we may have an amendment being introduced on this item? Yes? It indicates to me that it was not. May we have a recess? Let us go on to the next item, if that is okay. We will come back to resolution no. 1. Resolution No. 2012 -40, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE TERMS SET FOR COUNTY COUNCILMEMBERS Council Chair Furfaro: I believe we will have a floor amendment on this. Ms. Yukimura: Yes, Mr. Chair, but we just discovered a problem with it, so we would like to move it to the end of the agenda. Council Chair Furfaro: Why do we not first, so that some of our personnel can get some time, plan to take a short recess. Mr. Bynum, would you want the floor before we take the recess? Mr. Bynum: Yes, just a question. We sent three potential amendments to the County Attorney for review. Have we received feedback? Mr. Rapozo: Mr. Chair, just as a point, we should make a motion to get it on the floor. Council Chair Furfaro: Yes. COUNCIL MEETING 7 May 23, 2012 Mr. Rapozo: Whatever that motion would be. Council Chair Furfaro: Point of Order, okay we will make a motion. May I have motion to have that resolution put on the floor. Ms. Yukimura moved for adoption of Resolution No. 2012 -40, seconded by Mr. Chang. Council Chair Furfaro: Mr. Bynum, you have the floor. Mr. Bynum: Last week we had three potential amendments that were going to be reviewed by the County Attorney, and I have not seen any feedback from that. Have we received that? Council Chair Furfaro: Not to my knowledge. Can we find the County Attorney? Ms. Yukimura: There is a report from the team that was formed and that is something that we wanted some time to get together as well. Council Chair Furfaro: Let us get the County Attorney out. Mr. Rapozo: Mr. Chair? Council Chair Furfaro: Yes. Mr. Rapozo: May I have the floor? Council Chair Furfaro: Yes. Mr. Rapozo: As I stated last week at the last meeting, I am not going to be supporting the resolution. It does require five votes, and I am just going to say it right now. I am not going to be supporting it. If you do not have the five votes, then I will make the motion to receive. There is no need to spend time in executive session and on the floor if in fact the votes do not exist. I just want to... and if any other Councilmembers would like to voice their position, we could save a lot of time. So I just want to make it known for the record I will not be supporting that. My suggestion is to send this to the Charter Review Commission for a thorough review, thorough public comment and exploration of all the possible scenarios that could occur and how in fact...I think Mr. Taylor brought up some very good points that I share with his position. So I think that avenue or that venue is probably the best place for something of such significance on this. That is just my comment. Thank you. Council Chair Furfaro: I got an indication from the County Attorney that Jennifer Winn is being paged to come over to speak to us on that item. Vice Chair Yukimura. Ms. Yukimura: Yes, Mr. Chair, I hope there are not votes already set before we have even had some discussion on this and discussion on the different amendments. you. Council Chair Furfaro: Understood. Ms. Yukimura: So I hope that at least we will have that. Thank COUNCIL MEETING 8 May 23, 2012 Council Chair Furfaro: Mr. KipuKai. Mr. Kuali`i: Mr. Chair, I think the extension of term limits is a fairly simple matter to consider. For me at least at this time in the broader sense, I cannot support this because I do not think it is something that we as a body should put forward. There are many ways for a Charter Amendment to come forward, and we, as individuals, have a right to work with the community. As a community organizer myself in the past and as a citizen having signed other petitions to bring matters forward for Charter Amendment, for me as a Councilmember sitting on this body, I see it as self - serving to put forward a proposed Charter Amendment to extend terms at this time. And I do feel, too, that there needs to be a thorough review of all the different possibilities with regards to Councilmembers' service, the length of their terms, the seats, whether at -large seats would even be considered for portions of it, 3 of the 7 seats or 4 of the 7 seats, whether the seats should be identified so that councilmembers run for a specified seat and then the voters get to choose. I am always in favor of the voters having more choice, but I am also in favor of respecting the fact that the voters have voted in the past to reduce the terms from four years to two years, and to include term limits. I personally do not support term limits. I think voters have the right to change their representatives in each election. But at this point I think we have to respect what the voters have already voted on and I do not think we should be the body to initiate the change to that. The voters have that opportunity, and we also do as individuals and citizens with a petition, with our Charter Commission. There are many ways. I am not ready to support this as a Councilmember. Thank you. Council Chair Furfaro: But in all fairness and as the leader of the body, I think respectfully if the County Attorney has something to share with us, I would like to hear from them, and I would also like to give an opportunity for the introducer of this proposed resolution to the Charter an opportunity to speak on those items. So at that point right now, I am going to take a 10- minute recess until we have Jennifer Winn here from the County Attorney. And then as the introducer, Council Vice Chair Yukimura, I will give you the floor then. Ms. Yukimura: Thank you. There being no objections, the meeting was recessed at 10:50 a.m. The meeting was called back to order at 11:03, and proceeded as follows: Council Chair Furfaro: Aloha, we are back from our 10- minute recess. As I remember it, when we went off, we were dealing with a resolution proposing a Charter Amendment, Resolution No. 2012 -40, and I indicated to Vice Chair Yukimura that I would give her the floor. So you have the floor, Vice Chair. Ms. Yukimura: Yes, thank you. Chair, as the introducer of this proposed Charter Amendment, which would have to be voted on by the people, my motivation was to promote and facilitate better governance. The key issue, as I see it, is whether going from a two -year to a four -year term for the Council would make for better decision making. There are many officials who have four -year and six -year terms. Our State Senators run on four -year terms, and our Congressional Senators run on six -year terms, so you can see that there is nothing sacred about a two -year term. And so the question is which makes for better decision making? And if you look at the bodies that have longer terms and you grade them for their wise and forward looking decision making, I think you will find that the bodies with longer terms actually make better decisions. And if you consider that two -year COUNCIL MEETING 9 May 23, 2012 terms really means that Councilmembers are running every other year, they basically have one year to do their homework and to learn and perform, and then they are running again. I was elected to a two -year term for Mayor in 1988. If you can believe or not, the Mayor's terms used to be two years, and especially for an administrative role where you are developing projects and so forth, that was quite ridiculous in my mind, and the voters of the island after six tries, on the sixth try saw the wisdom and changed the term from two years to four years. And now people are aghast when they hear that the Mayor's term used to be a two -year term, and yet there was a lot of resistance to change it when it was first proposed. So all I am trying to do is to raise the question here as to what would be best for the people of Kaua`i in terms of good decision making I believe in accountability and that is what elections do. They call their elected officials into account, and this proposal does not eliminate elections. It is just asking how often. So that is the discussion I want to generate here and invite so that we all look at this together. And there is not self - interest here because this does not apply to our term. It is not like we are voting to extend our term. This would take effect in the next election. So if it gets on the ballot for this election 2012, and it passes, it would take effect in 2014. So everyone would have to run for election again in 2014 with everyone knowing what the rules are, that it is going to be a four -year term. Both the electorate and the candidates will know it is a four -year term. And this thing about trying to honor the 2008 electorate decision to say no more than eight consecutive years or four two -year terms is good and some amendments that we are working on are trying to do that. But to be fair because otherwise you will not... if you stagger the terms (and we are also working on that), then you might have to cut people off at six years unless you allow for 10 years' possibility, and it gets very complicated to do that. In 1988 when we changed the Mayor's term to four years, everything was reset. It just started everybody whoever ran for Mayor then would have four years and then a two -term limit. So that is what we are working on and because we are trying to coordinate the staggering and keeping the limits at least to 10 years at the most, it is a complicated thing. But I just wanted to be clear that the purpose in setting this forth is to create good governance, and I welcome any arguments, pro or con, but that is what we are talking about or trying to talk about. And that is why I have introduced this resolution and I am working on amendments to address some of the concerns that other Councilmembers have had. And I know that there was charge to the County Attorney working with the County Clerk to develop some feedback and information, and I believe they may be ready now. and... Council Chair Furfaro: Did you intend to have those individuals come up Ms. Yukimura: I think the Council would like to have a discussion on the... if no one wants it, then it is not necessary. Council Chair Furfaro: Right, but what I am saying is during that conversation, would you want someone from the County Attorney's and Elections to be at the microphone when we discuss those questions? Ms. Yukimura: That would be fine. Council Chair Furfaro: Jennifer, you were on that committee? There being no objections, the rules were suspended. COUNCIL MEETING JENNIFER WINN, Deputy County Attorney: Yes. - 10 - May 23, 2012 Council Chair Furfaro: Who was on the committee from Elections? Come up. Who was on the committee representing the Council? Was that you, Christiane? CHRISTIANE NAKEA - TRESSLER, Council Legal Analyst: Yes. Council Chair Furfaro: May I have you up. Mr. Watanabe: Christiane and Peter Morimoto, Mr. Chair. Council Chair Furfaro: So we have a representative from Elections. We have three attorneys on this committee. Members, Vice Chair Yukimura has had her opportunity to give some rationale about promoting this as some stabilization for good government, and Mr. Chang, we have committee members here that can answer those questions as well. Go right ahead, you have the floor. Mr. Chang: I just wanted to say, right from the get -go I did not have any dialogue or any conversation with anyone prior to today to ask or to say which way I was leaning, so I did not have any discussions. My concerns when we had this conversation last week was I just thought it would naturally work its way out, because let us say for example two of us do not get elected this year, then you have two fresh people or three fresh people that are in. If people serve out their terms, then I guess three of us will be out in 2016 -ish. The following we are going to be losing two more just because of term limits and what have you. I personally would love to have an election every four years because as everyone knows by the time you try to do what you need to do, it takes a year and then you get a little bit of traction. But I do believe it does give the public, if they do not feel that you are doing your job, an opportunity to make changes. I just wanted to thank the working group because we have six bullet points that after your second bullet, using the 2012 results to determine the staggering of terms for Councilmembers elected in 2014 is complicated and confusing. So if you look at the next six bullet points, which I hope you folks can talk and discuss about, that itself is just confusing in layman's terms, I believe, for all of us Councilmembers, needless to say the public. And whenever we have discussion, we always have the pros and we have the cons so the voters in the populace can try to understand what we are trying to say, but when you look at the history of term limits in no. 3, "Election official records reflect the efforts to change council terms from two to four years have failed seven times since 1972," and that is 1972, 1974, 1982, 1984, 1988, 1992, and most recently 2010. To answer any kind of appearance of any conflict that was brought up, the suggestion perhaps is to remove any appearance of conflict, perhaps the Charter Review Commission should initiate Council term and term limit discussions, and I actually feel that the Charter Review Commission should initiate Council terms and term limit discussions. So that was my feeling from the beginning with our discussion last week and to have our working group maybe —I do not know if that is a suggestion or just a thought —think in terms of the same way, then I just wanted to bring that up. That is, quite frankly, how I feel also, and if you notice those six bullet points, that itself is extremely confusing as far as I am concerned for myself. I do not know if anybody else agrees, but it is for me. Thank you. COUNCIL MEETING Council Chair Furfaro: So that we have some focus here, what Vice Chair Yukimura is proposing and this working group participated in as a committee, just one of you can acknowledge this for me, so that the viewers realize the Council has a right to introduce amendments for the Charter through a ballot question. Ms. Winn: Yes. Council Chair Furfaro: Right? Ms. Winn: Yes. Council Chair Furfaro: So I just want to make sure everybody understands whatever the outcome of this piece, this is going to the voters. Ms. Winn: Correct. Council Chair Furfaro: And the appropriate pros and cons would be on the ballot item. So it is not like the voters are being bypassed is what I am saying. Ultimately the electing authority would have the yea or nays on this, correct? Ms. Winn: Correct. Ms. Winn: Yes. Council Chair Furfaro: If we want something to be routed through the Charter Review Commission, it goes on as their review item and they probably, at this point according to their rules, may not have enough time to probably get it on their ballot deadline Ms. Winn: That is correct. - 11 - May 23, 2012 Council Chair Furfaro: That is correct. So I just want to make sure I pointed that out. The Charter Review Commission probably does not have the appropriate allocated time to do their work at this late date. What the outcome of this Resolution is being introduced by Vice Chair Yukimura, still goes to the voters. Council Chair Furfaro: These discussion items on the staggering terms and so forth, they take some time to digest, Mr. Chang, but there would ultimately be a piece that shows the pros and cons for those people requesting the vote on this. How clear it can be made is another question. So, Jennifer, I am going to see from the group if they have any more questions for the working team on this item. Mr. Bynum, did you have a question for the group? Mr. Bynum: Hello, thank you for being here and thanks for working on this. Some of this history needs to be clarified, I think, because all of those previous Charter Amendments, they were all different. They were packaged differently. Some included districting, some included at -large seats and district seats. I offered an amendment last time that I think my intention was clear. My intention is if this gets put before the voters that we have staggered terms, that there is always a Council election every two years. One year it will be three members, the next year it would be four. In order to do that and honor the term limits that the voters voted for beginning in 2008, to do that pragmatically, practically, and fairly, I was hoping my amendment would accomplish that. And it basically would say any incumbent who arrived...if the voters passed this...and we arrived at 2014 where the top four highest vote totals would get four -year terms and the bottom three would get two. In order to do that fairly, any incumbent who COUNCIL MEETING - 12 - May 23, 2012 arrived at 2014 potentially could have term limits extended from eight to ten, but that potential would be determined strictly on the outcome of the votes. It would not matter if you had served two years at that time or six years or four years. The outcome would be determined by the voters. But that meant any incumbent who arrived at that year potentially could have ten years or eight depending on the outcome of the vote. That was my intention. I hope that the language that I put in the amendment accomplishes that and I hope to hear that feedback today, and if it does not accomplish that, with all of the brain power that is sitting across the table, what would be the language? So that was my intention that if this goes before the voters that it be done pragmatically and where the outcomes for any potential incumbents are determined by the voters, not by some scenario we set up. Ms. Winn: If I may... Mr. Bynum: So if I turn that into a question, I offered an amendment. Council Chair Furfaro: Turn it into a question. Mr. Bynum: You reviewed it. Would the amendment I offered accomplish those outcomes? Ms. Winn: If I can just do a little bit of history on the working group, we met after our...we received the original resolution and then we received three proposed amendments and were asked to review those proposed amendments. Our working group report was after we had looked at all those amendments and we talked about them, the pros and cons of them, and any potential problems. First off, from my point of view, the idea of changing from two to four years, having staggering, all that is legal. At this point it is just the language so it is not confusing, it is clear, that kind of thing. Our working group encompasses our discussion on all three proposed amendments. So some of these may apply directly to the one that you proposed versus somebody else. And the biggest potential confusion with this amendment was using the 2012 language because I believe that was in your amendment as well as the Vice Chair's. But we understood that to have come from the City & County amendment that they had, which is understandable to look and see what a different County did and use that language since it obviously worked once. We figured out later that the City & County has districting, so it would not apply the same way to us here. The working group report was to point out the different things about the different amendments that you may want to consider and you may want to work on and change. Mr. Bynum: That does not really answer my question because I think I have stated my intent. I know Christiane understands it, what the intention is, and so I would just hope the group would give us language that is legal and shows that intention. So we will see. CHRISTIANE NAKEA - TRESLER, Council Legal Analyst: I think one of the largest problems with your amendment...I am Christiane Nakea - Tresler, legal analyst for the Council. I think one of the greatest problems that we found with your amendment with the staggering portion that you are referring to is that the implementation was very difficult. It would have been potentially very costly for different elements tied to it such as voter education, potentially ballot... LYNDON YOSHIOKA, Elections Administrator: I am not quite sure about that. We never really looked into that. COUNCIL MEETING Council Chair Furfaro: Excuse me, you have to introduce yourself. Mr. Yoshioka: Lyndon Yoshioka, Elections Administrator. We really did not look into it at that level of detail. So I do not know if that was really one of the (inaudible). Council Chair Furfaro: So it is better at this point to say there are some costs yet to determine, but there are some cost allocations. Mr. Yoshioka: Likely yes. Council Chair Furfaro: Christiane, you still have the floor. Ms. Nakea - Tresler: Did I answer your question? Mr. Bynum: No, not really. I mean if you use that rationale, we can never change it because we have term limits now, we have...whether it comes before the voters through the Charter Commission or through the Council, these details have to be worked out or else you just never can propose it, not now, not in 10 years because we will have those complexities no matter what. To me it is pretty simple. In 2014 we have an election. The top four people have earned four -year terms. The bottom three have two. If there are any incumbents in that election, there is the potential that those incumbents could do that two -year and then could have a total of ten. But that outcome will be determined by the votes and the way they are cast, not by anything that we put forward. But I know wording that may be difficult, but if we cannot get it now, we will have the same issue if it comes up again later. So I am a little confused. Ms. Winn: Deputy County Attorney Jennifer Winn. Again, our working group report does not specifically name which amendments we necessarily took these comments or what these comments are about. But no, your amendment has potential problems that would not accomplish what you want to accomplish, potentially. con... Mr. Bynum: - 13 - May 23, 2012 Can you offer language that would address those Ms. Winn: We actually met prior to this meeting with the Vice Chair to go over this and perhaps the Vice Chair wants to speak more on that. We did try to find language that would accomplish what you want to accomplish. Council Chair Furfaro: Based on that, I am not going to come back to the Vice Chair right now because she had an opportunity to speak. I am going to bring her around when we go the second time around. With that I am going to recognize Councilmember Nakamura and then I am going to recognize Councilmember Rapozo. Then we will come back to you, JoAnn. Ms. Nakamura: I just wanted to thank the working group for this memo because I think it clearly summarizes concerns relating to staggering, appearance of conflict, and the history of term limits in a very concise way. So thank you for presenting this information to us. I think for myself at this point I think I agree with Councilmember Chang that there will be some natural staggering that will be happening over time, and I am concerned with the appearance of conflict because although I agree with Councilmember Yukimura's points that running every other year is not a real efficient way of governing, and it requires a lot of resources and attention away from the job itself, I believe that the COUNCIL MEETING - 14 - May 23, 2012 conflict of...there is an appearance of conflict, and I think I would agree with Councilmember Rapozo that I would prefer to see the Charter Review Commission take this up on their agenda with the full information and suggestions that have come out of this discussion. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I just had a question and it really is the conflict issue because the conflict of interest issue in our Charter and in the Ethics Code really...if there is a direct benefit, then it constitutes a conflict. That is how I read it. I guess the question is and it is clear here to me and this is enough for me, but the fact that a Councilmember like myself currently is running...we have a two -year term and by extending that to four years there is a direct benefit. There is no doubt in my mind it is a direct benefit because you take away the requirement for us to have to run should we be elected in the first term of a four -year term, of the Charter Amendment passing, should it pass. There is a benefit. I see it as that. That is question no. 1, and then the second question is the fact that there is another venue, another vehicle to get a Charter Amendment passed, meaning the Charter Review Commission, would that not even make the conflict even more clear that in fact the Council had an opportunity to go through another route but we chose to do it ourselves, although the benefit of this passing is really in the interest of the Councilmembers, in my opinion. I guess I am asking you and I do not know if you are prepared to answer that right now, but that is how I see it. My concern is that if a complaint was filed for a conflict, what are the chances of that being upheld? That in fact I voted on a matter that was actually going to benefit me if it should pass. Ms. Winn: First I think there is not a one answer to your question, and it would be more appropriate for the Board of Ethics. Mr. Rapozo: Right. Ms. Winn: However, I am aware of the Board of Ethics regarding a very similar issue involving a member of the Charter Review Commission that they said it was fine for him to continue to discuss the subject. I do not know if the Board of Ethics would apply it exactly the same to a Councilmember. But something very similar, I know that they have said it was fine. I do not know if they would in this case, but in another one they have said it is fine. If this Council refers it to the Charter Review Commission, as you know, they do not necessarily have to do anything with it. The Charter provides three different ways for Charter Amendments to be put before the voters. I cannot say at this point which would be the appropriate avenue. I am sorry I am not much more help. Mr. Rapozo: No, I kind of expected you to say that. I was hoping that you could, but you are right, it is an Ethics question. It is really not a County Attorney's question because it is involving a conflict of interest. I am not even going to submit a request to Ethics because I do not think that it is that critical that we need to do it now. I do not believe we do. This County has operated with two -year Council terms for a long time and in fact never had four -year terms, I believe, so I do not think it is of such necessity that we have to act on it today. But I do believe that the Charter Review Commission can do it and in a much cleaner way. I guess that is the best way I can say it. Thank you, Mr. Chair. COUNCIL MEETING - 15 - May 23, 2012 Council Chair Furfaro: Jennifer, before I go to Vice Chair Yukimura, for the public, please reiterate the three ways that Charter Amendments can be initiated, just for the public. I touched on it a little bit, but could you? Ms. Winn: Yes. There are three different ways that a Charter Amendment can be put before the voters. One is through Council via a Resolution voted on by five members. The second way is for the Charter Review Commission to vote and approve a proposed Charter Amendment to put before the voters, and the third way would be a petition by the voters. Off the top of my head I cannot remember what percentage of registered voters in the last election, but a certain percentage could also get it in front of the voters. Council Chair Furfaro: Thank you and for clarity (inaudible) that is again a Resolution coming from the Council would require five votes, and as we are taking testimony around the table, I just want to say it seems that that might be a difficult reach. And so the other two options are to probably move to forward the item to the Charter Commission, but that will occur the following election, or the other item is just flat out for a move to receive at this point because we would require five votes. Am I correct? Ms. Winn: Yes. Council Chair Furfaro: Thank you. Vice Chair Yukimura, you have the floor, then Mr. Bynum. Ms. Yukimura: Yes. The issue of appearance of conflict may be one thing, but I do not see how there can be a direct conflict when all this Resolution is doing is establishing the rules, and then everybody has to abide by the rules. It is not saying, you, Councilmember Rapozo, shall have a four -year term, or any of us. It is saying let us make a decision what the rules shall be, shall it be two or four, and then everybody goes for it and gets elected or does not get elected. So, number one there is electorate approval first of the rules, and secondly, then you decide who is going to be in those terms, and that is an electorate decision. So I am not seeing...I do not see how this is giving a Councilmember here today any special benefit that any other candidate would have. Do you? Ms. Winn: Again, my answer is really not going to change from what I told Councilmember Rapozo. I can see an argument; however, again I am aware that the Board of Ethics have ruled in a similar situation that there was not a conflict for a commission member. Ms. Yukimura: So on the issue of... that is okay. I think that is all the questions I have of your body. Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Mr. Bynum. Mr. Bynum: I think that... is there a motion on the floor, Mr. Chair? Council Chair Furfaro: Yes, we have a motion. The motion on the floor is to approve. Again, I want to indicate as I summarized, to move something for a ballot discussion you are going to have to have five votes. Obviously from what I have heard around the table that is not going to support five votes. I could be COUNCIL MEETING wrong, but I gave the other options which would be to receive this and /or to see if you can get votes to send it to the Charter Review Commission with the intent that they may address it next year. Those are the options that are there. Mr. Bynum, you have the floor. Mr. Bynum: I think it is a good idea to have four -year terms, and I think it is important to have this discussion. However, I do not want to belabor it either and I am prepared to make a motion to refer this to the Charter Review Commission, which in essence would mean that it will not be on this next ballot. But I think the sentiment is let us have this discussion at more length in that body or in that forum, and I think that is a good idea at this point, given that it seems clear to me that we are not going to pass this out of Council this year. Mr. Bynum moved to refer Resolution 2012 -40 to the Charter Review Commission, seconded by Ms. Nakamura. Council Chair Furfaro: Now, just a housekeeping item, help me here, Mr. Clerk. This supersedes the previous motion? Mr. Watanabe: Chair, we need a little clarification on the motion. Is it to receive and refer the issue to the Charter Review Commission? Council Chair Furfaro: I think that would be the appropriate motion because then that takes care of the first portion that we made. So it would be to receive the item and then refer it to the Charter Commission. Mr. Watanabe: Correct. Council Chair Furfaro: Does that... Mr. Watanabe: Yes. Mr. Bynum: So I will modify my motion. Mr. Bynum modified his motion to receive Resolution 2012 -40 for the record, and to refer it to the Charter Review Commission, seconded by Ms. Nakamura. Council Chair Furfaro: Why do I not just give you the floor? You have comments? Ms. Yukimura: Oh, I am just thinking that the rules were suspended to have the community speak. Council Chair Furfaro: Yes. Ms. Yukimura: So we should come back to order to have that motion. Council Chair Furfaro: Good point. Are there any more questions for the committee as I was trying to get some housekeeping done on the motion and you were still present. Any question for... go ahead, Mr. Kuali`i, for the group. There being no objections, the rules were suspended. - 16 - May 23, 2012 COUNCIL MEETING Mr. Kuali`i: Thank you, Mr. Chair. So hearing this consideration of referring to the Charter Review Commission, can any of you tell me who has the right /authority to refer something to the Charter Review Commission? Individual Councilmembers? The Council as a body? Citizens? I mean how do matters get suggested or put before the Charter Review Commission? Ms. Winn: The suggestions can come from all the above and it is up to the Chair of the Charter Review Commission to determine what ends up on the agenda. Mr. Kuali`i: So when you said all of the above, I had mentioned individual councilmembers, the Council as a body, and I also mentioned an individual citizen or a citizen's group. Ms. Winn: Correct. Ms. Winn: Yes. - 17 - May 23, 2012 Mr. Kuali`i: So all of those bodies or individuals can bring a matter before the Charter Review Commission for consideration. Ms. Winn: They can make suggestions. Again, though, what actually ends up on the agenda is up to the Chair. Mr. Kuali`i: So do you think that if an item was brought to them from the Council body it would have more weight than if something was brought by a citizen? Ms. Winn: I think... Mr. Kuali`i: To get on the agenda, you just said? Ms. Winn: Probably realistically. Mr. Kuali`i: Thank you. Thank you, Mr. Chair. Council Chair Furfaro: Thank you. So to revisit that, there is probably more influence on the outcome with the Charter Review Commission Chair if he saw a request coming down from the full Council. Council Chair Furfaro: Thank you. Any more questions for the working group? If not, I want to thank you for your time and for being there. Mr. Taylor spoke earlier during the Consent Calendar. Mr. Mickens, you want to speak now? GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. Just briefly my take on this term limit issue is that the voters have spoken six different times saying that they do not want the rules changed as it now stands. Possibly the voters in their wisdom when watching their representatives' action did not like what they have seen nor the results they get and hope to see new faces every two years. This is my opinion. I guess it is a matter of trust in who represents them and, in my opinion, until they gather complete trust in the members of this Council or whatever Council, they will want the status quo to continue. COUNCIL MEETING - 18 - May 23, 2012 As far as what Mel was saying, I agree that when this Council votes on an issue like this, I think it is a conflict of interest. I think it is in their benefit that... not maybe you, but the rest of the Councilmembers. And when they vote on an issue, it is going to, in my opinion again, I think it does impact you directly. And so I think you have a dog in this fight. I think if the Charter Review Commission or somebody else, an outside party, is voting on it, I think they would not do it. Anyway, this is my opinion. I appreciate it. Thank you, Jay. Council Chair Furfaro: Thank you. Anyone else, before I call the meeting back to order? JOE ROSA: Good morning Members of the Council, for the record Joe Rosa. I have been sitting down here and listening to people that are supposed to be in office to do things, to solve things for the people. I have a simple solution of fairness to all through what I have heard and what I intend to say. In the term of fairness, you do not go by the top four voters for an election to make whether they run in a couple of years, get in a four -year term or a two -year term. The fair, equal way is to put everything in a basket and you put two colors, red and green. Red, you stay for four years; green, you run. Simple as that because if you come in the top four, you know you are going to be in. That is not really fair. You want everybody to be equal, they work just as hard. So you put it in a basket, you draw those names out one by one, and like JoAnn said, you wait until after 2014. Why wait until after the 2014 election, come January 15, 2014, you get the County Clerk to draw it out and whoever gets the three greens, they run, where the top four, whoever gets the red, they are status quo for four years. That is a simple reasoning, and I do not think that anybody would say it is unfair. That is fairness. I do not know what more can be said. Put it in a basket, you draw for it. You have the red, you are fortunate, you are happy, you get your four -year term. You have the green that means you run. So the top guy, the top four, the number one if he pulls a green, I am sorry, you just have to run, that is it. I cannot tell, oh, Mr. Rapozo, you were the top so you are in. Whoever, no, that is not fair. Fairness is when everybody has a choice. So what else can be fairer than putting all those names in a basket and go by the red and by the green. Red, you are in; green, you run. That is all I have to say. Just a simple solution. You might not have to say sitting on the agenda here because again, you have to get this thing all ready for the special ballots to be printed for the special election. So I leave you with these thoughts and you people think about it. Thank you. Council Chair Furfaro: Thank you, Joe. Any more testimony? Any more in the audience? If not I will call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: We have had a lot of discussion on this item. As I had earlier suggested based on the discussion around the table, these various options on bonne chance are at the discretion of the Members wanting to provide an opportunity for this to go on a future amendment and refer it to the Charter Review Commission is what I heard the last time. So I would like to see if we can look at restating the motion which first would be to receive and then referring it. But before I go any further, more dialogue? Is any Member wanting to speak again? Mr. Rapozo. Mr. Rapozo: Thank you. Mr. Chair, I definitely obviously would support the motion to receive. I cannot support the referral. That is a bold statement from this body to send it over to the Charter Review Commission and COUNCIL MEETING - 19 - May 23, 2012 say, hey, we want you folks to consider four -year terms. I am very uncomfortable with that because I still look at it as an advantage for us. You are encouraging the Charter Review Commission to do a Charter Amendment to increase the Councilmembers' terms from two years to four years, and that is just how I feel. Maybe Councilmember Yukimura does not feel that way, but I do and it is uncomfortable for me to send a communication over there with my stamp of approval on it. I would much rather prefer if Councilmember Yukimura or Councilmember Bynum or any Councilmember who wants the Charter Review Commission to pursue down that road, they can do so as an individual Councilmember. Then the public will understand this is not a Council request. This is a Councilmember's request. So I will not support a motion to receive. I would ask that we restate the motion to a receipt and if the Councilmembers want to submit any suggestions over to the Charter Review Commission, as I have personally in the past, that that is the route that should be taken. And any Councilmember can do that. Three, four Councilmembers can send individual letters of request and that will have maybe a similar influence, but for this body, I am very uncomfortable with asking the Charter Review Commission to do a Charter Amendment that in my opinion would be in my benefit or would create a benefit for me personally. So I do not know what...I am kind of in an dilemma because the motion to receive is what I want. I just do not like the second part of that motion, which is a referral. And so I guess I am not sure how you work that out, but I cannot support the receipt and the referral. Thank you. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: First of all, I want to thank everybody for having the discussion because I feel it is a really important issue totally divorced from anybody around this table, and it is really about how we do our business in County government. And I hope that the issue will be discussed and actually get to the ballot so the people of the island and County can have a say about it. I am actually very comfortable with the idea of just receiving it and letting the...wherever...because I think it is an idea that many people have spoken to me about that feel that it is something... a change that should come. Just like the Mayor's terms finally changed to a four -year term and now everybody cannot even imagine that it was a two -year term. So that is fine because I think the idea will come up whether I introduce it or someone else. It needs to be put forth and discussed because it is about good governance, in my mind. I could retire in two years and I still would support it. And I think the ideas of staggering and so forth are really critical, and how it is done is also important. I think one of our responsibilities whether the Council puts a matter on the ballot for a vote as a Charter Amendment, whether it is done one of the three ways, we all have a responsibility to make sure the issues are clearly and simply stated so people know what choice is. I think when we mixed districting with Council terms it made the issue so unclear that people...you mixed two major issues and there were many people who might want one but not the other. And so I feel a real responsibility to having a well vetted wording proposal on the agenda. So actually taking more time to do that will be for the better, I hope. Council Chair Furfaro: Any other members want to speak before I call for roll call vote? Mr. Bynum. Mr. Bynum: I am fine with this either way. I had already, in my own view, said this is the parameters we are under. But I do not think it is a conflict or a benefit for any members if it is put forward transparently, and the voters understand it. We have made improvements as a County about COUNCIL MEETING - 20 - May 23, 2012 transparency, but we still have major issues that are... to deal with, to get more clear with our citizens about the decisions and the choices we make, but this would not be one of them. If this went on the ballot in any form, it would be clear, the discussion would be happening, and I trust the voters to make those kind of decisions when they have complete information. But I am fine receiving or referring. I think the vote will tell the tale of that. Maybe it could be two different motions because I would like to say...I would be more than willing to say to the Charter Review Commission, please consider this. Please use your auspices to come up with a well thought out proposal. But in the long run the voters will decide it, so however this turns out is fine with me. Ms. Yukimura moved to receive Resolution No. 2012 -40 for the record, seconded by Mr. Chang, and carried by the following vote: FOR RECEIPT: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST RECEIPT: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Now I would like to go to Resolution no. 3, please. Mr. Watanabe: Resolution No. 2012 -42. Council Chair, let us go back to 2012 -22 as 2012 -42 requires an executive session first. Council Chair Furfaro: Understood. I am sorry. I had gotten some information on the break that helped me answer some questions I had on the public use issue, but we will go back to Resolution no. 1, which is 2012 -22, and just go there right now. Resolution No. 2012 -22, RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO DEFINITIONS OF "SHALL," "MUST," AND "MAY" Council Chair Furfaro: I believe, Mr. Chang, we are going to have an amendment. Mr. Chang, you have the floor. Mr. Chang: Thank you, Mr. Chair. Council Chair Furfaro: Wait a minute. I do not know where we are going here, Ken. Do you want to hear the amendment first before you give testimony or are you waving your hand you want to testify only on the Resolution now? There being no objections, the rules were suspended. KEN TAYLOR: I would like to see the amendment. Council Chair Furfaro: Well then put your hand up and we will get you the amendment. There being no objections, the meeting was called back to order, and proceeded as follows: Council Chair Furfaro: Mr. Chang. COUNCIL MEETING Mr. Chang: Thank you. The material to be deleted is of course bracketed. The new material is underscored. "Shall the terms "must" and "shall," when used in the Kauai County Charter, be construed as mandatory instead of directory, and shall the term "may" be construed as permissive? Council Chair Furfaro: So that we all understand this, this amendment that is being introduced for this piece on "shall" and "may" as it is identified here, Mr. Chang, this is a vote from the public that would be on the ballot. So the public will say when you use "shall" it is a consideration that this is construed as being mandatory, and the voters will vote on that instead of directory as it is right now. So now, may I have as second and then I will ask you to come up, Ken. Mr. Chang moved to amend Resolution No. 2012 -22, as shown in the Floor Amendment attached hereto (Attachment No. 1), seconded by Mr. Kuali`i. Council Chair Furfaro: Ken the rules are suspended, you may come up. There being no objections, the rules were suspended. KEN TAYLOR: Chair and Members of the Council, my name is Ken Taylor. Although I have not seen the resolution or the amendment... Council Chair Furfaro: You want a copy of the amendment, please give that to Ken. Mr. Taylor: I am in complete support of having the community vote on what "shall" and "must" means in the future. I think it is really sad that we have to go to these extremes, but I understand in law nothing is perfect. But I think this will put a lot of clarity in all of our legal documents. Thank you. Council Chair Furfaro: Ken, we have a question for you. Mr. Bynum: Ken, did you read the County Attorney opinion that this Council voted to release regarding this matter about "shall" and "may "? Mr. Taylor: Mr. Bynum: - 21 - May 23, 2012 I have not seen it. That is all I wanted to know. Council Chair Furfaro: I, too...I have a crying towel in the back. I will be glad to share it with you that we have to get to the voters to determine this point of view. We just had a situation where we had salary commission items come over after the posted date for the budget, and I want to make sure you understand my request is certainly one where when it is date specific, of course it means shall because we have a critical path to follow in the budget. So thank you for your testimony. Mr. Mickens. GLENN MICKENS: For the record Glenn Mickens. Thank you, Jay. I just want to say that I completely agree with what Dickie said. I think this is nothing but common sense, you know using the word "shall," "may," "will." It is going to be, as you are pointing out, Jay, if it has a specific date in there, May 15, what would be arbitrary about that? It is a definite date so it should be adhered to what the date says, that is all. So why are we going to argue about it for? Yes, as Tim asked, I did not read the Attorney's opinion, but I did hear what they said and I do not know. I thought it was more or less legalese type of thing, trying to get around something, but for the average person I think again if you have a date COUNCIL MEETING specific that date is mandatory. It is not arbitrary, it is mandatory whatever the date happens to be. So anyway, I appreciate Dickie's amendment here and I think it is right on target. Thank you. Council Chair Furfaro: Glenn, I want to make sure you understood. I used the term date specific. Unfortunately in this case it is the ides of March. Mr. Mickens: The 9th of March. Council Chair Furfaro: The ides. Mr. Mickens: The ides of March, okay. Anyway, what you are saying is it is a specific date and that is all I am saying. It is not arbitrary, it is a specific date. If it is, why then it shall be, that is all. Thank you. Council Chair Furfaro: Anyone else from the public would like to speak? JOE ROSA: Members of the Council, for the record, Joe Rosa. When I saw this simple word come up for discussion at the Council here, I referred to my working days as an inspector where a lot of my work dealt with specifications. And whenever the word "shall" came upon any of the specification wording, there was no ifs, no buts, it had to be. That is the way it was interpreted. There was no leeway. If it has to be Class A, it is Class A. So to me it was a simple word. I do not know how the County Attorney misinterpreted it. It is in plain English that I heard in school that it was something that was compulsory. It "shall," no ifs, no buts. So for a man of integrity in his category, I think he made a little booboo. Simple English, "shall" is final, there is no leeway because that might be something that would cause failure in construction. So that is why that word "shall" was very strong and enforced. I thank you. Council Chair Furfaro: Thank you, Joe, and Joe, I need to say in all fairness to the County Attorney, my comments are focused on items that are date specific and therefore are part of a critical path. There are other legal processes that were defined with us, but this resolution allows us going forward to let the public decide on that. Is there any more public testimony on this item before I call up the County Attorney? County Attorney, I do not know which one of you is going to address this item. We have a question for you. JENNIFER WINN, Deputy County Attorney: Deputy County Attorney Jennifer Winn. Council Chair Furfaro: Thank you, Jennifer. I will recognize Councilmember Nakamura. Ms. Nakamura: Hi Jennifer. I just wanted to clarify that the County Code currently has language that says "shall" is mandatory. Ms. Winn: Yes. Ms. Nakamura: It is just that the Charter does not have parallel language. Ms. Winn: Correct. - 22 - May 23, 2012 Ms. Nakamura: I also wanted to ask, if we adopt this change and... COUNCIL MEETING Ms. Winn: It could. - 23 - May 23, 2012 Council Chair Furfaro: It is the voters that would adopt the change. Ms. Nakamura: Yes, if the voters adopt this change through the proposed Charter Amendment and let us say it says that the Mayor "shall" submit a budget by March 15. If the Mayor does not submit a budget by March 15, let us just say he does it on March 16. How would that affect the budget process? Ms. Winn: I could tell you the analysis that I would use. First, I was listening to the testimony and it has bothered me on several occasions that people say "shall" means may, which it does not. Again, it has to do with the consequences. So if there was this provision, the idea is if the word "shall" is mandatory versus directory that you cannot do it at all after that point in time. So if the Mayor was to produce a budget by March 15 and he does not, if it is deemed mandatory, then he would not be able to give you a budget at all. If it is deemed directory, you could scold him all you want, but he did not do it in time when he was supposed to, when under the law he was supposed to; however, you would still be able to review a budget after March 15 if it is directory because he was supposed to, he did not, but the consequence is not that you do not have a budget at all now and he cannot give you one. It is that you would still be able to look at it. He was supposed to do it by that date, but the consequence is not that he cannot do it at all now. In my analysis I would first look at that issue that there is language in here that shows the intent of what this word was supposed to mean. But then an analysis would go on to other statutory construction presumptions that are in the case law and stuff like that. And when I was talking before, two weeks ago, I talked a little about absurdity. So a court may come back and go, well obviously the County needs a budget. Just because it was not done by this date even though it was supposed to, a court can say we are going to still deem this word directory because it would be absurd to have it mandatory. That is how the analysis would go. As I said last time, I cannot tell you exactly what a court would do, but that would be the analysis. Ms. Nakamura: And the same thing if we have language in there saying that...let us say the Planning Commission shall have nine members and they only have seven members and decisions are made. Would that create any absurd results? Ms. Nakamura: And then so the same thing if it were challenged... Ms. Winn: You would still go through the same analysis. This language would...this proposed amendment would give evidence of the voters' intent on what this is supposed to mean. It does not mean in certain situations that a court would go on to look at other ways to view the language. It would be one thing to look at. Ms. Nakamura: Thank you. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: So do you not think in the Planning Commission scenario that a developer could argue that not having more votes, especially if they were not in the environmental seat or a labor person, that they were disadvantaged and that their rights were actually affected that would counter the absurdity argument, so it would create some real difficulties for the County to have the "shall" and not be able to use the absurdity argument or at least have it countered? COUNCIL MEETING - 24 - May 23, 2012 Ms. Winn: I think the analysis would be the same. If somebody could raise an argument? Sure, someone can raise an argument, but the analysis would still be the same where you are looking at the language. You first look at the language of the Charter, you look at what the intent was after you look at the language, and then the next step after that down the line somewhere would be the absurdity argument. Everything kind of depends on the actual facts of a situation. Ms. Yukimura: Okay, but when you are allowed to do that analysis, which is the way right now if you do not have the specific mandatory language, you can actually be more circumstances specific than you can with this mandatory language, this boilerplate, if you will, that cuts across the board and does not actually look at the circumstances to see whether it should apply or not. Ms. Winn: Right. Ms. Yukimura: I mean does it not carry a certain weight that would counter looking at circumstances? Ms. Winn: No, it is going to be the first thing that somebody looks... well, the language of the Charter is going to be the first thing somebody looks at. If it is ambiguous or unclear, then you look to the intent. This would be evidence of intent, it is actually written, it will be written in the Charter. But every case depends on the circumstances. You are right. When you look at other provisions of the Charter, for example kind of what we were talking about before, it does not say that you are going to be voted in to Council or Councilmember Chang is going to be voted in. Those are specific circumstances. It just provides the layout on how to get there. Ms. Yukimura: But how do you really understand intent when it is applied so across the board unless we go on a case by case basis for every "shall" and then say our intent is here. That is the whole thing that the intent is so generalized, it is not...you cannot even say...actually you can say the intent was to apply that rule no matter what the circumstances were. That is what a boilerplate is. And therefore it applies and it has to apply whether it is absurd or not because. But the question of absurdity...okay, that is one issue. That intent would be interpreted as a generalized intent no matter what...no matter which provision it is, our intention is that "shall" shall apply. Would that not be an argument about a boilerplate like this that we are considering? Ms. Winn: It would be an argument, yes. Ms. Yukimura: And would it not also counter the absurdity protection? Ms. Winn: You know most of the law is general. It has to be general. And that is why, unfortunately, you have us as lawyers to apply it to specific circumstances. Ms. Yukimura: What I am asking is when you have this general...that is what we are trying to decide, if we should give...what we are going to be asking the voters to decide is whether we want to apply it generally or whether we want to leave it as a status quo where it is circumstance by COUNCIL MEETING - 25 - May 23, 2012 circumstance analyzed, and analyzed based on the consequences, not on a flat across - the -board projection that no matter what the consequences "shall" shall be shall. Ms. Winn: Whether or not the language is put into the Charter, everything would still be circumstance by circumstance. The language could in certain situations with a certain set of facts weigh it more towards mandatory versus directory, that is true. It could have impact on the analysis, giving greater weight to saying that something is mandatory. That is not to say after looking at all the presumptions in the law that it would be every single time as mandatory. It would depend on the facts. Ms. Yukimura: But you will agree it will raise a lot of questions that could bring in a lot of litigation. Ms. Winn: I do. I agree that anything, any changes in the law could bring in extra litigation because it is new. Ms. Yukimura: Yes, but this is a law that is negating or weighing against circumstance analysis. That is okay. ALFRED B. CASTILLO, JR., County Attorney: Maybe I can help. Council Chair, may I address Councilmember Yukimura? Council Chair Furfaro: You know you can, but let me share something with you, Al. The Council has a date specific to complete the budget. We do not complete the budget, the Mayor's submission is approved. Is that a "shall "? Is that a mandate to the Council to complete by that date; if not, all of our work is meaningless? Then we have a provision that says the Salary Commission is required to put us in a point that we have all of the information we need to begin the budget. You know these are standards when it is date specific. I understand Jennifer's point, the law is pretty general and that is why we have a team of attorneys that are across the street there. But when we are acting on the biggest part of the budget, which is the payroll and we do not have specific recommendations, then the circumstances change for us, and I think what I am hearing from Jennifer is we have to be diligent enough that if we have things that are date specific, that is a standard. And the standard, I would argue, is providing a level of quality, a level of quality that serves as a baseline foundation for us to do our work. The fact of the matter is it has a reach, it is obtainable, it is monitored, it is measurable, and then it is placed there as date specific in order to create an operational success of the budget process. We went astray there, in my opinion. But I can accept all of the general items that Jennifer has just suggested to us on why we all have to know that there is a standard formula to get us to a place to get the right concurrence. Now we want to drag the "shall" into what happens in the Planning Department if the representative from labor is unappointed at this time and so forth, I think there is defensible circumstances there. I do not know what they are, but there are defensible circumstances. But when things are date specific and we get the interpretation on the other end of this, then should not that apply to the Council not having a deadline to complete a budget? But if you want to respond to Councilmember Yukimura on these philosophies, go ahead, but this is what drove it, the operating standards that are required to do a budget in a timely manner in a quality environment. Mr. Castillo: Council Chair, may I? Al Castillo, County Attorney, excuse me for interrupting, but this is a rather complex discussion going on and I would just like to address Councilmember Yukimura's questions on the COUNCIL MEETING Mr. Castillo: Correct. - 26 - May 23, 2012 legality. And when you mentioned as an example and I think, and correct me if I am wrong, I think the proposition or the point that you were trying to make is in the event that say for instance in the Planning Department and it says, it "shall" have a certain number of board members, and then you do not have that number of board members, then the legal question becomes whether or not that taints the integrity and the legality of the board, that the decisions...yes, because it taints... you do not have the correct number and then you can have a developer where the ruling went the other way and then it would raise a legal point, a legal issue that because the "shall" meant shall and you did not have this, and that would invite another set of legal issues that would not necessarily have been there if not for this measure. I think that is where you were going. And the answer to that is yes. Any time you change, it would give an opportunity for a plaintiff to make such a claim. Council Chair Furfaro: So in other words, excuse me, Al, so then regardless if it was appointed people that we can defend, someone being appointed to fill a vacancy and so forth, now how to do you take that and accommodate attendance? How do you accommodate attendance? Mr. Castillo: I am just saying be careful in what you legislate because there may be unintended consequences. In all the consequences... Council Chair Furfaro: The Code of the County currently tells us what "shall" means. Jennifer agreed with us. Mr. Castillo: Yes. Council Chair Furfaro: There are circumstances that there may be a deviation. We have to be prepared for that. But to basically to have...well the shall in a mandate for Planning or Salary Commission and some of it was not met, when it starts to impact our ability to produce a document, I have a problem with that. Mr. Castillo: I agree, especially when we went through the Salary Resolution, when we went through the budget, I have observed. Council Chair Furfaro: And then this is... again, this is a question for the voters on the simple interpretation of "shall" being mandatory. That is what we are trying to put on the ballot. I want to finish another item before we finish this piece. Al, you might stay there. Mr. Bynum, you have a question? Mr. Bynum: Thank you for that answer, and I keep going back to the opinion that your office produced. This whole thing all started with a Resolution coming from the Salary Commission after March 15. The last time we discussed this I asked the question, has there been an analysis of each "shall," "may," and "must" in the Charter and what its implications are if we pass this. The answer was no, that has not been done. And I just said, well, what about the Planning Commission one, and I think Mr. Morimoto pointed that out to me initially, and I brought that up as an example. And now for two sessions we have gone back and forth and had all of this discussion, that is just one of the "shalls," right? And what I heard from Ms. Winn, and this is the question, regardless of what the Council or the voters do, the Hawai`i State Supreme Court is likely to apply the standards that they have put forward on this question about absurdity and all of that, correct? COUNCIL MEETING Mr. Bynum: And so you know, I am going to take a hit on this one because everybody is going to look and say, how could you not support this, it is so obvious, "shall" means shall. But when you get into the complexities of government, Supreme Court, separation of powers, and I keep encouraging people to read that opinion that we voted to release, which is a great thing, read that opinion before you make these what seem logical. So I am going to vote against this. I think I might vote for the amendment. Council Chair Furfaro: You need to pose a question to him, not tell him how you are going to vote. You have any more questions for him? Mr. Bynum: I think you have answered the questions. I just hope people have listened because I could say okay, let us go to the next "shall" that is in the Charter and let us talk about that one, and we will have a big convoluted discussion. Unintended consequences is the key term here, correct? Mr. Castillo: Correct. - 27 - May 23, 2012 Mr. Bynum: Thank you. Council Chair Furfaro: Okay, Al, I am going to be calling for the vote on this and I want to make sure you understand what I am saying as I refer to standards of operation for this Council. When something is directed to us as a "shall," it is for a specific measurement, an area that we are mandated to do as achieving a goal, and those dates are critical. And I heard Jennifer very clear, there are circumstances that can be argued at the time why we should not use shall at the point in time, that there are circumstances. But the reality when something is date specific and we ignore it, and we are trying to do our work, and then we have a date that we have to complete it by, oh my gosh it becomes almost not manageable, not measureable, and we will leave it at that for now. Jennifer, thank you very much. And if Members want to vote against this going on the ballot as a question, then they vote no. Vice Chair Yukimura. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura: Mr. Chair, I would like to propose an amendment. Council Chair Furfaro: To date specific? Ms. Yukimura: Yes. Council Chair Furfaro: Let us do it. Ms. Yukimura: All right, thank you. Council Chair Furfaro: And we are going to come back to this item because that is my argument about "shall." It needs to be, if it is date specific, you "shall" do it. So on that note we will come back to this item and we are going to move on to another item while that amendment is fixed. No, I want to tell you we have people here to testify for a specific item. Bills for First Reading, item no. 2. There being no objections, Proposed Draft Bill (No. 2437) was taken out of order. COUNCIL MEETING - 28 - May 23, 2012 Proposed Draft Bill (No. 2437) — A BILL FOR AN ORDINANCE TO AMEND SECTION 19 -1.3 AND SECTION 19 -1.4 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO PARKS AND RECREATION: Mr. Rapozo moved for passage of Proposed Draft Bill (No. 2437) on first reading, that a public hearing thereon be scheduled for June 13, 2012, and that it thereafter be referred to the Finance /Parks & Recreation /Public Works Programs Committee, seconded by Mr. Bynum. Council Chair Furfaro: I am skipping around here a little bit. I am not sure that our visitors understood there will be an opportunity for a public hearing. But you have come down now and we can take testimony now. So if there is anyone in the crowd that would like to give testimony now, we will accept it and then with the understanding that they will be given a second chance when it comes up in the Parks Committee on June 13. Good afternoon ladies, and if you can turn your mikes on and introduce yourselves you can begin your testimonies. There being no objections, the rules were suspended. VALERIE SAIKI: Good afternoon, County Councilmembers, Chair, my name is Valerie Saiki. I am here with the Coalition For A Tobacco Free Hawai`i representing our local community Coalition known as Tobacco -Free Kaua`i. And I also would like to introduce our Policy and Advocacy Director. JESSICA YAMAUCHI, Coalition for a Tobacco Free Hawai`i: Hi, I am Jessica Yamauchi with the Coalition for a Tobacco Free Hawai`i. I am the Policy and Advocacy Director based in Honolulu here to support Valerie in her efforts on Kaua`i. Ms. Saiki: So with this bill, I am hoping all of you had a chance to browse over it. Council Chair Furfaro: We have received a number of testimonies in favor of the bill too that will be collected and presented to us on the June 13 meeting as well. Ms. Saiki: That makes me very happy and excited to hear. I did want to just present a little bit just to kind of educate the County Councilmembers on this issue that you may not know as much in depth. The reason why we...I want to come and cover four points. The basis of this bill or the amendment is pretty much secondhand smoke exposure presents a health risk to all adults, youth, pets. Cigarette litter is also harmful and young smokeless tobacco users are more likely to use cigarettes in the future, and also adult habits affect youth. So I wanted to make sure that I covered those points to make sure that you are aware that that is an important issue. When I started with the Coalition in about 2005, my first volunteer event was a beach clean -up, and I brought some visuals today and this is a jar of tobacco butts that had been decomposed. This was picked up at that event on October 22, 2005 for National Make A Difference Day at Lydgate Beach Park. This does not really tell you much. It looks like soil, right? This used to look like this. So these are butts that were picked up on April 18, 2010. Over time these butts decompose and they look like this. The reason for it is this is not cotton like most people or nonsmokers think it is. It is actually spun fiberglass and plastic, cellulose acetate. It is a difficult plastic that takes several years to break down. And when it does break down, especially with the tobacco that runs through it, it leaves behind 50 carcinogens, which are cancer - causing chemicals that is deposited into the earth. COUNCIL MEETING - 29 - May 23, 2012 And so these are the chemicals that we find very harmful and not just for our earth but for our keiki and animals that play in the park. The park is a public area. Nobody owns the park. It is governed by the County, and it just needs to be a safe family- oriented place, and that is part of what the bill is for. So I just wanted to kind of make this presented because people think that this bottle is cigarette butts. We see them all the time, right, in the parks. With the cigarette butts, one pack which is 20 cigarettes. Council Chair Furfaro: Excuse me, that is half of your time. You have three additional minutes. Ms. Saiki: 0.12 ounces is equivalent to 20 cigarettes butts. It seems pretty light; however, there is an estimate of over 9,000 smokers on this island and keep in mind it sounds like a lot, but it is only 13 %. If they smoke one pack a day for a whole year, we know some smoke more, some smoke less, it still equals over 25,000 pounds of tobacco butt litter on our island, whether it is properly disposed of or not. So one of the main objectives of this bill is to really get this litter off of the parks, out of the land, and also out of the vision of our youth to make it a social norm that smoking is not the normal lifestyle. And with only 13% of Kaua`i's population, adults who smoke, this bill is not really affecting that many people on Kaua`i because most of us choose not to smoke. Most of us choose to raise our children in smoke -free environments, and in fact we did a poll and 62.9% of Kaua`i people, adults over the age of 18, prefer to have smoke -free parks. Council Chair Furfaro: Very, very good. Would you want to add anything for testimony? Ms. Yamauchi: No, I think Valerie covered a lot of the points. The other thing that we wanted to talk about, we do have a picture that we wanted to distribute to you that we thought kind of brings the point home, and this was taken on O`ahu. It was part of a photo contest, and it is a picture of a crab holding a cigarette butt and how even when we do not realize it, and this happens with children who accidentally pick them up as they are little kids and they do not know any better, and they ingest it. But this picture was taken on O`ahu at Bellows Beach and actually was one of the winners of a photo contest that was done statewide. We just think it kind of brings home the whole issue of why we want to see tobacco -free parks and beaches. Kauai has and our whole State has some of the most beautiful beaches in the world, and we should do more to protect them. Council Chair Furfaro: Thank you. Ms. Yamauchi: Thank you. Council Chair Furfaro: A left- handed smoking crab. Ms. Saiki: Hopefully not. Maybe he was just doing a litter pick up. Council Chair Furfaro: Let us hope. Ms. Yamauchi: Helping out the environment. Council Chair Furfaro: Okay, we are going to have a few questions for you folks before we recess for lunch. Please make note, public hearing on this item will be at 1:30 in the afternoon on June 13. COUNCIL MEETING Ms. Yamauchi: Excellent. Council Chair Furfaro: Vice Chair Yukimura. - 30 - May 23, 2012 Ms. Yukimura: Thank you very much for a very compelling presentation. I have a question about your presentation. The two containers that you showed, what you showed is that those cigarette butts distill down over a period of eight years or so down to what looks like sand almost. And if it is on the beach itself, it just integrates into the sand a lot of the tobacco poisons that are in the cigarette. Ms. Saiki: And into our drinking water inland as well. Ms. Yukimura: And then your statistics 9,000 smokers or 13% of our adult population? And was it a rate of one pack a day would produce 20,000 pounds of tobacco litter from 9,000 smokers or from one smoker? Ms. Saiki: From the 9,000 collectively. Ms. Yukimura: Per year. Ms. Saiki: Yes, and so we have our trends and facts that I brought that I can also leave with you folks if you wanted to look over it for additional information that shows that most people who do smoke in Hawai`i smoke on average 10 -20 cigarettes. Council Chair Furfaro: I would encourage you to have that kind of literature available for the public hearing. Ms. Saiki: Yes. Ms. Yukimura: 10 -20 cigarettes per day? Ms. Saiki: Yes. Ms. Yukimura: And how many in a pack? Ms. Saiki: 20. Ms. Yukimura: Thank you, thank you very much. Council Chair Furfaro: By the way, the entire Council is non - smoking. Ms. Yamauchi: Congratulations. Ms. Saiki: Something to be proud of. Council Chair Furfaro: Some of us knew there were 20 cigarettes in a pack. Mr. Bynum, you have the floor. Mr. Bynum: Hi, Valerie, thanks for coming today. I have two questions. I will be really quick. In 2005 when we did the Make A Difference Day, do you recall how many cigarettes we picked up that day and what it looked like visually? COUNCIL MEETING - 31 - May 23, 2012 Ms. Saiki: After about a million, we kind of gave up, but it did have enough to fill two 10- gallon water jugs, so think of the Menehune water jugs. We had some glass jugs nicely donated by John Hunt, and we filled them up for beautiful visuals. But after a while, the smell kind of gets to a non - smoker. But I did have some extra that I did place in this jar that I use for my easy -to -carry classroom presentations. And over time, this is what happened, I did not force it, it just magically happened and gave me a whole new display that I did not plan for. Council Chair Furfaro: I want to make an announcement. Members, I want to caution you. This is a first reading bill. It is very, very unusual for us to start Q &A and questions. Mr. Bynum, you still have the floor. Mr. Bynum: I wanted you to talk about that two 5- gallons because like in an hour and a half 30 volunteers in Lydgate Park filled these two huge containers with cigarette butts. And my second question, because the Chair wants me to move on, I have been looking for this bumper sticker that we used to have that said "My island is not an ashtray." Ms. Saiki: I will get you one. Mr. Bynum: If you can get me one of those I would appreciate it. Ms. Saiki: I will get you a few, yes. Council Chair Furfaro: Members, so time specific 1:30 p.m., June 13. Thank you very much. Ms. Saiki & Ms. Yamauchi: Thank you. Council Chair Furfaro: We are dealing with Bills For First Reading. This is Proposed Draft Bill (No. 2437). We have a motion, and we have a date specific in the Parks Committee for this on June 13. Mr. Mickens. GLENN MICKENS: Thank you, Jay, for the record Glenn Mickens. I want to compliment these young ladies for their fine presentation. It is quite graphic what they are pointing out. If today somebody were dumb enough to come before the public and say they are introducing something that is as lethal as tobacco, I think probably the FDA would probably laugh at you. But here we are in this position getting our young kids addicted. We watch television and see the Congressmen sit up there quizzing these tobacco CEOs, is it addicting? It is addicting and they are saying no. So it is a heck of a fight, but if we can get these young people away from it initially up until 18 —I think you can keep them away. But once you get them started, then it is bad. Anyway, I sure appreciate what these young people are doing. Thank you, Jay. Council Chair Furfaro: Thank you. Joe? JOE ROSA: Thank you for this privilege. Basically I am glad those two ladies were here because time and time again I have told people, even our legislators, why do they not change the cigarette law, make it mandatory 21 like they do the liquor law? I have seen high school seniors 18- year -olds giving cigarettes to the younger kids that are not 18 years old. So there is a link that they can get those cigarettes from their friends. I noticed one time by the high school there, this guy "Eh, give me one cigarette." So how can you stop those kids? Make it mandatory 21 to buy cigarettes, like they do the liquor. That is one way to cut those cigarette smokers from smoking. Do not start them out young. They can wait COUNCIL MEETING - 32 - May 23, 2012 until 21. The liquor guys, they wait until 21. And to enforce the cigarette law, it would be much easier in the stores. The stores, they have to ask for ID, you are in the line, you have to wait, you have to show the ID, and all that. Make it mandatory. The younger they are, three years, they will not die from waiting to smoke. But they will die from smoking at 18. So those are the kinds of things that I look at. To prevent it is to enforce it. When I used to work on the highway, there were millions of butts along the highway and more so you could tell when they came out with the filter tips. All kinds of colors. Council Chair Furfaro: Mr. Rosa. Mr. Rosa: Yes. Council Chair Furfaro: This first reading is not intended for the public hearing. Mr. Rosa: Jay, I am not going to be here so that is why I want to say it today because I will be off - island on June 6. So that is why I wanted the Council to be aware and know and try to see if you can make an enforcement to the Legislature to raise that age to 21. That way you will stop the source because like as I say, the younger high school students, the sophomores, the juniors, they can get cigarettes from the 18- year -olds. So how else more can you stop it by enforcing the law to make the law 21? Those are the kind of things. Stop it before it starts. So what could be better than a higher age? So I hope those two ladies go back and try to enforce it to have a different law, changed from 18 to 21 so that the other high school students cannot get it from the 18- year -old seniors in high school. I was myself in high school. I graduated when I was 17, but today these early age born before June, they are 18 already. So they are giving the younger ones that cannot buy. So just consider it and hopefully when you have that meeting come June 6, you do something to enact further legislation to raise that smoking age to 21. (Inaudible.) Council Chair Furfaro: Joe, to clarify it, it is June 13. Mr. Rosa: Okay, I am sorry. June 13. I will not be here yet also too. Council Chair Furfaro: But anybody who is testifying, I do not want them to show up on your June 6. It is June 13. Mr. Rosa: Yes, I stand corrected. Council Chair Furfaro: Your testimony, I will refer to Councilmember Kuali`i. He is our Intergovernmental Relations Committee. Our bill only deals with County Parks and we will see if we can put something in next year's legislative package. Mr. Rosa: Yes, you go along the highways, you are going to see more than what you see on the beach because I tell you, this was foretelling, more so when they do...when those tips came out, the filter tips, you see all kinds of colors, white, brown, whatever. So I... Council Chair Furfaro: Joe, I want to let you know your time already went off and... COUNCIL MEETING - 33 - May 23, 2012 Mr. Rosa: I will not be here, so I had my say. I thank you very much. Council Chair Furfaro: I will pass this on to Councilmember Kuali`i. Any other members of the audience want to give testimony here? When we come back from lunch we are going to deal with the amendment on the "shall" and "may." It is with our new antique clock, if you have not noticed, Mr. Mickens. We are going to come back at 1:45 p.m., Members. Hold on a second. We are going to take a roll call, the ladies want to know. That was an announcement when we are coming back. The motion for passage of Proposed Draft Bill (No. 2437) on first reading, schedule a public hearing thereon on June 13, 2012, and thereafter refer to the Finance /Parks & Recreation /Public Works Programs Committee was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. There being no objections, the meeting was recessed at 12:41 p.m. There being no objections, the meeting was called back to order at 2:04 p.m., and proceeded as follows: Council Chair Furfaro: Aloha, we are back from our lunch break and finished the two public hearings. Now we are going to move back to the item that we were on dealing with the resolution referencing "shall" and "may." Councilmember Yukimura is circulating a new amendment to Resolution 2012 -22. If you would allow me to recognize Vice Chair Yukimura. Ms. Yukimura: Thank you, Mr. Chair. Thanks to staff we have an amendment to suggest or propose that provides for "must" and "shall" be mandatory and permissive, respectively, as they relate to dates or deadlines to take action. I can move to amend this, and then if it passes, then we can request Councilmember Chang to withdraw his motion on the amendment first. I think...yes, that is true. We need to act on the amendment first because I think that is the pending amendment. And so maybe if he would be willing to withdraw it, then we can act on this first. Council Chair Furfaro: And Mr. KipuKai, you were the second. Mr. Chang withdrew his motion to amend Resolution No. 2012 -22, as shown in the Floor Amendment attached hereto (Attachment No. 1), and Mr. Kuali`i, withdrew his second. Council Chair Furfaro: Thank you very much. Council Vice Chair, you have the floor. Ms. Yukimura moved to amend Resolution No. 2012 -22, as shown in the Floor Amendment attached hereto (Attachment No. 2), seconded by Ms. Nakamura. Council Chair Furfaro: Discussion? COUNCIL MEETING - 34 - May 23, 2012 Ms. Yukimura: If I might just repeat. Council Chair Furfaro: Go right ahead. Ms. Yukimura: This provides that the terms "must" and "shall" when they are designated mandatory or permissive, respectively, that they apply to dates or deadlines to take action. Council Chair Furfaro: Anybody else wishes to speak on this right now? Mr. Kuali`i? Mr. Kuali`i: Mr. Chair, I can support this amendment as it is. I would have preferred not to have narrowed it down and weakened it, and I think a lot of this came as a result of some of the distractions, if you will, brought on by the County Attorney, the talk about absurd examples. I think if there was a deadline for the budget to be submitted by the Mayor and he did not submit it, that would be pretty absurd. But I also think that the language that the Attorney used that said it would be absurd for the County to not have a budget. Of course it would be absurd, but if the Mayor acted in such a way as to not submit a budget, it is this Council's responsibility to make sure that the County has a budget. So I think this still all comes down to the statement that the County Attorney made that whether or not we put in changed language to the Charter, they would still analyze circumstance by circumstance. So I think the idea about consequences is still important, that in the case of the date specific deadline, if the Mayor did not submit it by the March 15 deadline, then what will happen? I think that we could argue that because it is this Council's responsibility to ensure that ultimately that there is a budget that we would be responsible to take action, and whether it is to take the prior year's budget and work from there or what, I do believe that...to make the argument that the County would be without a budget is absurd. And I also think to make the argument that if the Planning Commission does not have its nine members filled with the diversity seats and they made a ruling that a developer could come and challenge that, it is pretty absurd because I think all of our commissions, like our Council, are established with a certain number of seats, in this case in the Charter it is called members, but it is not...there are allowances for vacancies, and there are rules about what is a quorum. So there are clear rules and the democratic process makes it clear too of what gives a body power to act, and what their responsibilities are for acting. So to say that we did not have one particular type of seat filled on the Planning Commission would give the developer the right to challenge and sue, well let them because they would lose because democracy...I think a lot of this we are losing sight of the simple of pieces of how we behave democratically because of nuances that the law defines. I think it was actually the legal part of this, the legal analyses that are coming from the County Attorney that is making it overly complex and taking away the obvious pieces of how government and democracy operate. I am happy to support this as it is. I wish we left it in its original form, but this is a start. Thank you. Council Chair Furfaro: Other members? Mr. Rapozo. Mr. Rapozo: I just want to say that if any developer had intention of suing because only six or five members voted on the Planning Commission, they would have done it already because it is "shall." The language is there right now. So if that was an issue... the reason they have not sued is because it would have led to an absurd result, and no attorney is going to risk their money in taking a case of that nature. So I would agree with Councilmember Kuali`i. I am going to support this as well. It is a shame, like you said Mr. Chair, that we had to COUNCIL MEETING - 35 - May 23, 2012 resort to this, but in the case of the deadline, we lived the reason for the deadline last week when we had decision making. It was quite clear. When we found ourselves in a situation we did not want to be because now what do we do? So I think that was living proof and I think...I am glad that happened because should this case ever get to a courtroom, those minutes become available for the jury or judge to decide, and I think at that point it would be very clear why, in fact, that deadline should have been mandatory, that "shall" should have meant "shall." In any event, I will be supporting the amendment and we will see what happens when it hits the ballot. Again, it is unfortunate that we as a Council have to put in this kind of language on a Charter, which I believe, like I said every attorney that I ever spoke with since this thing started agreed that shall was mandatory. Thank you. Council Chair Furfaro: Anybody else wishes to speak before I speak? Vice Chair Yukimura. Ms. Yukimura: I just want to say that I appreciate the support for this amendment. I think it addresses some of the key concerns and I also think it reduces the possibilities for unintended consequences. Council Chair Furfaro: Mr. Bynum. Mr. Bynum: I want to explain why I am going to support this amendment, but I am unlikely to vote for the main motion. When we talk about "they," "they" will interpret this, we are not talking about the County Attorney, we are talking about the Hawai`i State Supreme Court. I know I have said this redundantly and it makes people unhappy when I am redundant, but please read the opinion that was supplied to us and the public. This is not something the County Attorney made up, and to blame them for some of this language like absurd, that is from the Hawai`i State Supreme Court. And so when they say regardless of what this Council does, the Supreme Court is going to make their interpretations based on their precedent of decisions. That is just the way our system works with a legislative, an executive, and a judicial branch. And so I believe that this amendment is more targeted and will cause less unintended consequences and that is why I am going to support the amendment. But I also want to put that in context of why would you support an amendment if you vote against the main motion, and there are reasons to do that and this is one of them. Council Chair Furfaro: Councilmember Nakamura. Ms. Nakamura: I just want to thank Councilmember Yukimura for putting forth this amendment. I think that it helps to clarify for everyone what the Charter means with certain dates and deadlines, and unfortunately we have to resort to this because of the kinds of opinions that we have been receiving. And so I would have preferred not to have to support this, but I feel that we need this clarification. So thank you very much. Council Chair Furfaro: Anybody else before I speak? Mr. Rapozo. Mr. Rapozo: Just one thing and this is just one clarification that the opinion that Mr. Bynum talked about is the opinion from the County Attorney. I think there is also another opinion that Councilmember Kuali`i and I used in our civil case that there is another attorney that we hired that created an opinion that is completely opposite that relies on Supreme Court cases as well. It is one opinion, but there are many others. And I think Councilmember Yukimura could appreciate the fact that an attorney...you can have obviously varying opinions. So the County COUNCIL MEETING Council Chair Furfaro: Vice Chair. - 36 - May 23, 2012 Attorney's opinion is not a Supreme Court rule. It is an opinion, much like the attorney that we hired, it is an opinion. I just want to make that clear. The County Attorney's opinion is not Supreme Court action. Council Chair Furfaro: Is there any more testimony? I am going to hold mine to the very end, go right ahead. Mr. Kuali`i: Thank you, Mr. Chair. I am not really sure, but I think Councilmember Bynum's concerns about State law may bring up some concern to me in the sense of I think the County Attorneys were always talking about well what are the consequences and if the consequences are not spelled out, then it is not mandatory, it is only a strong suggestion or whatever or declaratory. In the case of the Salary Commission's recommendation, it is clear that the Salary Commission makes the recommendation to the Council and then the Council is supposed to act to approve or reject, and that when the Council does not take action, then the consequence is that it would automatically take effect, the recommendations. So in that case, I am assuming if I was to look at the Charter, it spells it out that if this does not happen, then this will happen. So it might be that we need, besides language that says it is date specific, we need language that says "and if the Mayor does not submit his budget by March 15, the Council will act by blah, blah" because even though it might seem logical based on the argument that was made otherwise that it would be absurd for the County to not have a budget and that in fact the Mayor can then submit it a day late or two days late because we need to have a budget and the Council needs something to start with from the Mayor. But I would argue that if the Mayor did not make that submission, which I cannot imagine that ever happening, that the Council with the authority to make sure that a budget is voted on ultimately for the coming fiscal year would have to make a decision. But maybe it needs to actually be spelled out. Do we start with the budget from the prior year? What it is. So I am wondering if and maybe it is a question for the Attorney that their thing all along about consequences and then that is why the statement was made whether or not we put in new language that the Charter would still need to be analyzed circumstance by circumstance, and that even after we put in this date, if they analyze it and they say but there is no consequence because now what is supposed to happen? The County has no budget? Well that is absurd. I am just bringing that forward, Chair. Thank you. Ms. Yukimura: I just want to comment on Councilmember Kuali`i's comment. I would much prefer that way actually to start with whatever provision does not seem to be working and then say "shall" shall mean "shall" and whatever other things we have to do to make it a workable provision. I am really leery of this kind of blanket thing where we have not gone provision by provision and seen how it is going to impact or whether it leaves us with enough options to address absurd results. Council Chair Furfaro: Anybody else before I speak? You know first of all, I think the fact of the matter is if you recall recently the salary recommendations came to us late, and then I posed a question to all of you about 10 days ago, which number should we put into the budget on the four increases that we had. And we all decided although we have the recommendations that came after the budget deadlines, we are going to leave in what was there and deal with the new resolution in a future date. That is fine and well, but the bottom line on this piece with being date specific is really to ensure our operational success, we have to have a sequence of dates that makes sense about tax rates, about salaries, okay? And without it, quite frankly we cannot make good decisions because we do not have all the COUNCIL MEETING - 37 - May 23, 2012 information. So I want to thank Council Vice Chair Yukimura for making this amendment. I just wanted to point out date specific is critical to having good information to fundamentally make baseline decisions, and I will be supporting it. On that note, I would like to call a roll call vote even on the amendment. The motion to amend Resolution No. 2012 -22, as shown in the Floor Amendment attached hereto (Attachment No. 2), was then put, and carried by the following vote: FOR AMENDMENT: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST AMENDMENT: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: Now we are going to go to the main motion as amended, and I will allow other Members to speak again if they would like. Vice Chair Yukimura. Ms. Yukimura: After Councilmember Kuali`i's point, and I thank him for it, I think I am going to vote against this because I think it will have five votes to pass, and I really prefer the method where we work on the specific provisions. It just came to me that we could have done that with the budget provisions alone, and we are doing it in at least two pieces by this mandatory language and also by giving the voters a choice to remove the supplemental budget. We are amending the Charter provisions regarding the budget in a very specific way. And so I much prefer that than this kind of blanket thing. It makes me really uncomfortable even though we have limited it. Council Chair Furfaro: To date, we have limited it to date specific items. Ms. Yukimura: Yes, and so I much prefer it than its original piece, but I think I am going to vote against it because I think it is going to pass and because I feel uncomfortable still. Thank you. Council Chair Furfaro: Mr. Bynum. Mr. Bynum: Yes, this whole discussion happens in the context of County Attorney opinions. I heard some opinions from the County Attorney during budget that I was very uncomfortable with, I do not agree with, that I am going to follow up and ask for some of that in writing because I think it is important. But when we get opinions, and I have worked to try to get more of those in the public's hands, which I think is a positive thing, we get opinions that they very frequently cite State and U.S. Supreme Court decisions that have established precedent. And so yes, an opinion is an opinion, and one attorney will read those precedents differently. But we are also free to go and read what the Supreme Court said, which I have done in a couple of these instances, and much to my surprise this issue about "shall" and "may" and "must" was more complicated than you would think of on the surface, and I think that has been enlightening to me. But I also think that we should not make changes in the Charter that are not really well thought out and that solves a problem. I am not also convinced that there is a problem here. It came up very strongly earlier in the year that there is a March 15 deadline. The word is "shall" and the Salary Commission sent something here after March 15 and some people felt very strongly about that. In spite of the opinion that said the Supreme Court of the State of Hawai`i has established this kind of three -point criteria when these questions comes up to give guidance to people like us. I think that is important for us to listen to that guidance and I am very interested to see if COUNCIL MEETING - 38 - May 23, 2012 the next Salary Commission Resolution coming before us shortly that came after March 15, if everybody still feels as strongly that it needed to be here before March 15, and we will see when that vote comes before us. But for all of the reasons I stated and because the County Attorney has said, and I wrote this down, that this amendment could create circumstances that can be argued this way and that way, I think we are inviting for additional people to challenge it saying, hey, the Council stated this intent and so now it gives new impetus to some of those arguments that we just came up with one example and got all kinds of convoluted questions about. I have been around here long enough to know that you give somebody that has a self - interest something to hang their hat on, they will take it to court. I am afraid that is what we may be doing is giving potential litigants something to hang their hat on and make it more likely that lawsuits get created. For all of those reasons I am not going to vote on this. I am going to vote against this resolution. Thank you. Council Chair Furfaro: Does anybody else wish to speak before I speak? Mr. Kuali`i. Mr. Kuali`i: Mr. Chair, I think based on Councilmember Bynum's statements and the statements I made earlier that I would like to propose an amendment, and I would like to ask the Attorney a question about that. Council Chair Furfaro: Fine. I will ask the Attorney to come up. There being no objections, the rules were suspended. Council Chair Furfaro: Hi, Mona. MONA CLARK, Deputy County Attorney: For the record, Mona Clark, Deputy County Attorney. Mr. Kuali`i: Aloha and mahalo, Mona. I have been thinking more and more about this consequences and this may be oversimplifying it and I may need some help in drafting the language, but in addition to making it date specific, do you believe that if we clarified a consequence that what would happen if the date was not met, that that would make the Charter Amendment less susceptible to challenges and potential litigation. Ms. Clark: Yes. Mr. Kuali`i: The basic thing I am getting to is that... and I do not know where the places occur that there is a date specific deadline, but if somebody else like the Salary Commission or what have you is meant to bring something to the Council by a certain date and they do not, could not the consequence be as simple as then the Council will decide? Ms. Clark: I think it would depend on the department that you were dealing with and whether the Council had authority in that area or not. But I think that if you have a stated consequence for not doing something by a specific date, that stated consequence is going to be what happens under the Charter. Mr. Kuali`i: But would that consequence then make us less susceptible to challenges and litigation as Councilmember Bynum was alluding to, because what you folks had said earlier that whether or not there is language change that each circumstance would be analyzed and that going back, most of this COUNCIL MEETING - 39 - May 23, 2012 every time, you said that it was about the lack of a consequence. So if they did not meet this date and we did not spell out what would happen that that made it not mandatory and then only declaratory. Ms. Clark: Right. I think that is true and I think the example that you cited with the Salary Commission that if this body did not act within 60 days, then the resolution becomes effective. There is a direct consequence for that time schedule being missed. So if you put in some direct consequence and that was a legally acceptable consequence, that would deal with the absurdity problem to some degree. Of course you have to look at what you come up with. I cannot say without seeing that whether it would be acceptable across the board. Mr. Kuali`i: My final question then for now is what would it take to determine this phrase or something similar "that the Council shall decide" is legally acceptable? Would it take finding each instance where there was a "shall be submitted by this date" within the Charter? Ms. Clark: I think you have various bodies that the Charter delegates authority to. So you would have to look at each separate instance to know what a possible consequence could be. It may change with the departments you are dealing with and who has authority. Mr. Kuali`i: Would you have any sense of how many times this occurs in the Charter or how easily we could find that out? Ms. Clark: It would be easy to find out. All you would have to do is get your word processing program up and put in "shall" and count the number of times it comes up. Mr. Kuali`i: With a date specific after it. Ms. Clark: I do not imagine it would take somebody that long to go through to figure that out. Mr. Kuali`i: Okay. Ms. Clark: And I think you are much better off if you know what you are actually changing than if you make it a global change without knowing that. Mr. Kuali`i: Thank you, Mr. Chair. Council Chair Furfaro: Vice Chair Yukimura. Ms. Yukimura: I think Councilmember Kuali`i is trying to further narrow the global application, which makes me feel more comfortable. But would it not also be possible to address the major concern by just looking at the budget provisions of the Charter which have "shall" and dates, and just amending that, and applying this boilerplate as it is to just those provisions? Then your word search is even smaller and it is one subject matter...well, it is not one department because it is Administration and Council and Finance and so forth, but it is still more focused than even the limiting wording we have come up with now. Ms. Clark: Right and I have not seen the limited wording that you have come up with, but... COUNCIL MEETING - 40 - May 23, 2012 Ms. Yukimura: Oh, you have not seen that? But it would also be possible if we are looking at amendments to just limit the application of this mandatory /permissive interpretation boilerplate to just budget provisions. Ms. Clark: Yes, you could do that. I do not see any problem with that. Ms. Yukimura: And we could do it for the Salary Commission because it is related to our budget process too. Ms. Clark: You could specify. Council Chair Furfaro: You just said the magic word. It is related to our budget process, and we missed every date on salaries. Ms. Yukimura: Right, thank you. Council Chair Furfaro: Mr. Rapozo, did you want to speak? Mr. Rapozo: I think, Mona, there is one section in the Charter and I do not know where it is. I think it is under the general provisions that speaks of the consequence for any violation of the Charter, and that is a misdemeanor. It is a misdemeanor. It is punishable by a year in jail and a $2,000 or $1,000 fine, whatever it is. That is the consequence. Correct? Ms. Clark: I do not think that that is across the board correct, no, because if somebody made an unintentional error, I am not sure that that would be a criminal offense. Mr. Rapozo: Well, the Charter says any violation of the Charter is a misdemeanor. (Inaudible from the gallery.) Mr. Rapozo: Well, the speed limit is 50 miles an hour. If you did not intentionally, you kind of recklessly drove past, that is not a defense. I mean I am not going to get into the debate of what is intentional or not, but I am saying when KipuKai asked about what is the consequence if the Mayor did not submit the budget by the 15th... Ms. Clark: Well I think the consequence of the action. I mean the question is who submits the budget in those circumstances? Does the Mayor just submit a late budget? Does some other party come up with a budget? That would be the consequence, not whether there is a violation and what the consequence to that violation is. Mr. Rapozo: I guess nobody has ever been...I do not believe, anyway, anybody has been prosecuted for violating the Charter, but I am just saying...I agree, I do not think there would be any Mayor that will not submit by the 15th, but I am just looking at any of the provision that there is a "shall submit" by a specific date. Technically a complaint could be filed with the prosecutor, Attorney General, on a Charter violation. That is the consequence. That is a potential consequence of violating what the Charter says. COUNCIL MEETING - 41 - May 23, 2012 Ms. Clark: But that is not the consequence that the courts are talking about when they are analyzing whether it is mandatory or directory. They are analyzing what will happen to the process. Mr. Rapozo: I understand, I understand that, and maybe we have to tighten that up. I am not sure if that has ever happened. I would assume that the existing budget would remain. That is the only practical thing I would think of. You cannot operate a County without a budget. So let us say there is no budget that comes to us. I do not know what the remedy would be, but I would assume that the Council does not have the authority to create a budget. Ms. Clark: I would not at this point. Mr. Rapozo: Right and I do believe that is the legislative body's position, so I would assume that the existing budget would come into play for the Council to deliberate. And at that point the Council can do the necessary changes as if it was submitted by the Mayor. Ms. Clark: I think you have a hypothetical situation and I do not think that you can really address it without... Mr. Rapozo: I am just saying I believe that would be consequence. I heard that as a question and I am not sure what the remedy would be. I do not believe that the Charter provides the Council the authority to create a budget for the County. Ms. Clark: Right and so the argument that the late submitted budget would suffice would be one argument, the prior year's would be another argument. Mr. Rapozo: Thank you. Council Chair Furfaro: Mona, I am going to send something over. We should do some research if we do not have a budget. I know most management contracts that I deal with if between the management company and the ownership cannot agree on an operating budget, the previous year's budget is used and no line item can be used more than 5% from the previous year's budget. There might be something like that here. This whole thing came about...I cannot believe we are this far. This is my resolution. The Council is charged with approving a budget, but the Council is now subject to all these variables on meeting deadlines, except the main one at the end. If we do not approve one, we do not have all the specific information we want and so forth, what we do not vote on automatically initiates the Mayor's original proposal. I have just been trying to talk about it. I want to correct Mr. Bynum. My comments have not been directed at the County Attorney's Office. My comments have been on good business practices, good business practices. How can we make good decisions when we do not have all of the particular facts and recommendations by the time we start the process, especially when salaries and benefits together make up almost 70% of the budget. That is a different piece for a business guy to look at this critical path to come to a final decision, but yet we do not necessarily have all of the recommendations to support it. I am moving this forward just trying to create a baseline for what we need to do budget -wise. I do not think my comments are coming from anywhere other than good business practices. By the way, I have operated hotels with larger than COUNCIL MEETING - 42 - May 23, 2012 $150,000,000 operating budgets and revenues, and it is not a good practice to establish your operating budget and then later on figure how much are we going to increase the room rates this year. Ms. Clark: Right. Council Chair Furfaro: That is all. I just want to make sure. My beef is nowhere near the issues about the interpretation. It is good business practices to have all of the pertinent information in a critical path so that we can make good decisions. Ms. Clark: Right and our office is not commenting on good business practices, that is not our area of expertise. Council Chair Furfaro: Yes, but it is very important for us to have that because there is a consequence for us. We do not arrive at a budget we agree on, the Mayor's budget gets approved. Any more for Mona? Not for Mona. Mona, thank you very much. Mr. Kuali`i, the meeting is called back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Kuali`i: Mr. Chair, mine is a process question. I do want to have some time to prepare this amendment and to do some analysis. I would say that the Charter is 70 and a half pages long, and in this day of computer technology, I think I could get the analysis done in a week if we have a week, and so I would ask for a deferral so I can work on this amendment, and have it in a week. first. Council Chair Furfaro: Let me get some comment from the County Clerk Ms. Yukimura: Mr. Chair, I recall when we were talking about the two -year, four -year term resolution that we said we had one more week from this day and there would still be time then for getting it on the ballot. Council Chair Furfaro: Yes, but I do not want to hold you to that decision if we decide to work. I want to get a confirmation from the County Clerk. Ms. Yukimura: Very good, thank you. Council Chair Furfaro: I think that is a fair and reasonable practice. Over to the County Clerk's Office... Mr. Watanabe: Chair, we are verifying with the schedule. Council Chair Furfaro: You are going to verify with the schedule? Let us take a 10- minute recess so the Clerk can verify with the schedule. We are on recess for 10 minutes. There being no objections, the meeting was recessed at 2:40 p.m. The meeting was called back to order at 2:50 p.m., and proceeded as follows: COUNCIL MEETING - 43 - May 23, 2012 Council Chair Furfaro: We are back from that short recess. I do not have Councilmember KipuKai right at the moment, but a question posed to the County Clerk if we deferred this for two weeks, Rick, where would that put us on the critical calendar. Mr. Watanabe: Pursuant to our fact sheet for Charter Amendment Council Resolution Timeline, if we were to defer it, it would come back on the agenda for the Council Meeting of June 13, which would be...the absolute drop -dead would be July 11 for second and final reading This current resolution has already gone through first reading and public hearing, so as long as it is back for second and final reading before July 11. Council Chair Furfaro: So if we defer today and I am going to repeat this for Councilmember Kuali`i, we can have it back on the agenda for June 13 after some information has been researched and from that date as long as we get it on second and final reading, it can go out on July 11. I guess there is a request from within the membership to defer this for two weeks so that it reappears on the agenda for June 13, and I would entertain, if someone would like to make that motion, that we have some discussion and vote on it. Ms. Yukimura: Chair, a motion to defer would not allow discussion and that would be what we are thinking of doing right now, right? Mr. Kuali`i: And that would be three weeks, but that is when the next Council meeting is. Council Chair Furfaro: Yes, the next full Council, June 13, and I think the reason we did it that way is because in May the fifth week is committed to the budget, and typically if we had no other business in a month that had five weeks, it would have been a blank or dark Council meeting. But because we are going to handle the budget, it is three weeks from now, but it would still allow us to meet, as long as we met second and final reading on July 11, right, Mr. Clerk? It would still give us that time. Mr. Watanabe: Correct, yes. Mr. Kuali`i moved to defer Resolution No. 2012 -22, as amended herein, seconded by Mr. Chang, and carried by the following vote: FOR DEFERRAL: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST DEFERRAL: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. BILL FOR FIRST READING: Proposed Draft Bill (No. 2436) — A BILL FOR AN ORDINANCE TO AMEND CHAPTER 16 AND CHAPTER 17 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO ELECTRIC VEHICLE CHARGING STATIONS: Mr. Rapozo moved for passage of Proposed Draft Bill (No. 2436) on first reading, that a public hearing thereon be scheduled for June 13, 2012, and that it thereafter be referred to the Economic Development & Renewable Energy Strategies Committee, seconded by Mr. Bynum. COUNCIL MEETING - 44 - May 23, 2012 Council Chair Furfaro: Discussion? I do want to say I had some calls asking me about the term "fee" versus "free," so they want to clarify this. This is not letting people use our electric chargers for free. This is for a fee. The motion for passage of Proposed Draft Bill (No. 2436) on first reading, that a public hearing thereon be scheduled for June 13, 2012, and that it thereafter be referred to the Economic Development & Renewable Energy Strategies Committee, was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. BILL FOR SECOND READING: Bill No. 2434, Draft 1 — A BILL FOR AN ORDINANCE AMENDING CHAPTER 12 OF THE KAUAI COUNTY CODE - 1987, AS AMENDED, ENTITLED "BUILDING CODE ": Mr. Bynum moved for adoption of Bill No. 2434, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Rapozo. Council Chair Furfaro: Mr. Bynum. Mr. Bynum: Mr. Chair, I have an amendment and the purpose of this amendment for the Building Code is for housekeeping measures. We found that Section R202 was not appropriately numbered in the original submittal. This amendment corrects that error, and includes the definition of Wind -Borne Debris Region in Section R202. This is purely a technical amendment. Council Chair Furfaro: So on the second page of what you are circulating, those items that are underlined reflect the amendment? Mr. Bynum: That is correct. Mr. Bynum moved to amend Bill No. 2434, Draft 1, as shown in the Floor Amendment attached hereto (Attachment No. 3), seconded by Ms. Yukimura, and unanimously carried. Council Chair Furfaro: Discussion, Members? No one here for testimony? The motion for adoption of Bill No. 2434, Draft 1, as amended as shown in the Floor Amendment attached hereto (Attachment No. 3), was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 7, Yukimura, Furfaro AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: None TOTAL — 0. Mr. Watanabe: Next items are executive sessions. We have some pending items on the open session calendar; however, we need the executive sessions first. COUNCIL MEETING - 45 - May 23, 2012 Council Chair Furfaro: First of all to our technician on the TV, BC, I do want you to know that I suspect that we would be almost two hours in executive session and when we come out we will be taking some action that will require your presence. I am sorry it has worked out that way, but we have five executive sessions. May I call up the County Attorney, please? There being no objections, the rules were suspended. MONA CLARK, Deputy County Attorney: For the record Mona Clark, Deputy County Attorney. I am going to read the executive sessions. Pursuant to Haw. Rev. Stat. ( "H.R.S. ") §92 -7(a), the Council may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to H.R.S. §92 -4 and shall be limited to those items described in H.R.S. §92 -5(a). (Confidential reports on file in the County Attorney's Office and /or the County Clerk's Office. Discussions held in Executive Session are closed to the public.) ES -543 Pursuant to Hawai`i Revised Statutes Sections 92 -4 and 92- 5(a)(3) and (4), and Kaua`i County Charter Section 3.07(E), the purpose of this executive session is to provide the Council with a briefing and consultation and for the Council to deliberate regarding a Resolution Authorizing the Acquisition of Fee Simple Interest in Lands Required for Public Use to Wit: The Pedestrian and Bicycle Path Which Constitutes Part of Public Park System, Situate at Waipouli, District of Kawaihau, County of Kaua`i, Hawai`i, and Determining and Declaring the Necessity of the Acquisition Thereof by Eminent Domain, and related matters concerning the authority of persons designated by the Council to negotiate the acquisition of public property or during the conduct of such negotiations and to consult with the Council's legal counsel on issues pertaining to the Council's powers, duties, privileges, immunities, and /or liabilities as they may relate to this item, deliberate and take such action as appropriate. 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 -544 Pursuant to HRS sections 92 -4, 92- 5(a)(4), and section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an executive session with the Council to provide the Council with a briefing and consultation on Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. 10 -1 -0161 (Agency Appeal), Fifth Circuit Court, currently being appealed by Mr. Sheehan under Intermediate Court of Appeals No. CAAP -11- 0000601, Michael G. Sheehan vs. County of Kauai, et al., Civil No. CV12 -00195 HG BMK, U.S. District Court, and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. ES -545 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4), (6) and (8), and Kaua`i County Charter section 3.07(E), the purpose of this executive session is to provide the Council with a briefing on Kaua`i Springs, Inc. vs. County of Kaua`i, et al., Civil No. 07 -1 -0182, Kauai Springs, Inc. vs. Planning Commission of the County of Kauai, Civil No. 07 -1 -0042, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and /or liabilities of the Council and the County as they relate to this agenda item. COUNCIL MEETING - 46 - May 23, 2012 ES -546 Pursuant to Haw. Rev. Stat. § §92 -4 and 92- 5(a)(4), (6) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council with a briefing on Grant W. Gribble vs. County of Kaua`i, et al., Civil No. 08 -1 -0231 (Fifth Circuit Court), and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and /or liabilities of the Council and the County as they relate to this agenda item. ES -547 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 County of Kaua`i in Cathy Song, et al. vs. County of Kaua`i, et al., Civil No. 10 -1 -0171 (Fifth Circuit Court), and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and /or liabilities of the Council and the County as they relate to this agenda item. ES- 548 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 the Council to consult with the County Attorney regarding a request to the Board of Ethics to investigate whether a violation of the Code of Ethics occurred in connection with the creation and operation of the POHAKU program 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. 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 -543, ES -544, ES -545, ES -546, ES -547, and ES -548, seconded by Ms. Yukimura. Council Chair Furfaro: Thank you. Mona, thank you very much. I am going to do a roll call now to go into Executive Session. Yes? One moment please. Ms. Nakamura: Are you going to do it as a blanket? Council Chair Furfaro: Yes, so if you want to recuse yourself for one... Ms. Nakamura: No, Council Chair, I want to just make a statement that we are going into executive session on six matters today. Two of the items we received information ahead of time or it was in our packet. And four of the items we received information today. Some of these were dated as late as today. It is a lot of information that we have been handed, and we have asked the County Attorney to provide this information ahead of time. So I feel, again, placed in a situation where we will be making decisions without having the background and the knowledge to prepare. So I feel that I do not know how many ways we can we ask for this information, but I just...I am not going to support going in if...I would like to take it one by one because I do not want to go into executive session on items that we have not been given adequate time to prepare for. Council Chair Furfaro: The rationale for the executive session also stems from my request to have those Honolulu attorneys on the phone today. The only way we can be on the phone with those attorneys is by having a scheduled session. Now, that does not excuse the fact that the County Attorney should have gotten the COUNCIL MEETING - 47 - May 23, 2012 drafts to us in advance, but we will have an opportunity today to talk to the Honolulu attorneys. I am not making any excuses, but we did make arrangements to be on a conference call with them this afternoon. Ms. Yukimura: Council Chair, I share Councilmember Nakamura's concerns about timely provision of information, and perhaps we can make this...while we go into executive session today, really put the County Attorneys on notice and ask for a written response about the timeliness of the material so that we can get some kind of a written commitment to provide us... Council Chair Furfaro: I do not disagree with you. We so shall deliver that, especially with our Honolulu counsel The fact of the matter, this is not the first time we have had to visit on this item, and I think all of you know that. It may be the last. Ms. Yukimura: Yes, it may be delayed by the Honolulu counsel too. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair, and I share Councilmember Nakamura's concern, but at the end of the day it is us that make the decision whether or not we support the request, and I am frustrated. There is a six -day posting requirement. So this is on the agenda for six days and to get the information today is not acceptable. I am going to support going into executive session, but what I will not do is support any funding if we are not properly informed or if we are warned that this is time sensitive. That is the part, I think, Mr. Chair, that bothers me the most. We get the information a few hours before session and then we are told we need the money today, and at that point I am not inclined to support any requests. Council Chair Furfaro: I want to make sure you folks all understand before you just...I feel like you are throwing the messenger under the bus here. I want to make sure you understand. I have had this dialogue before. You will have an opportunity to express your concerns to the contracted attorney who will be on a scheduled phone call with us today at 4 o'clock, as well as the fact that we have a situation over here that seems to be pretty consistent. Just speak up. You do not want to go into executive session, I need five votes. If the rationale is we are not getting things timely, that is understandable. But if have an opportunity to talk to those contracted services, I do not want to go any further than that to portray this. Am I shaking about this? A little bit. Do I want to deliver a strong message? Certainly I do. So I am in the same canoe as you folks. Vice Chair Yukimura. Ms. Yukimura: I was just...did you say 4 o'clock or... Council Chair Furfaro: Yes, we are going to take a couple of other ones first. Ms. Yukimura: Okay, great, thank you. Council Chair Furfaro: But the ones you just got in today's packet is a 4 o'clock call. And I do plan to take a break before we go in because I have to return some calls today too. Any further dialogue? No? Mr. Rapozo: Are you going to go one -by -one? Council Chair Furfaro: What is that? COUNCIL MEETING one? - 48 - May 23, 2012 Mr. Rapozo: Are you going to take the executive sessions one by Council Chair Furfaro: Mr. Rapozo: Council Chair Furfaro: out seriatim. Mr. Watanabe: When we go in or when we vote? Here. We can take it one by one. Mr. Clerk, please call it We are taking the roll call vote seriatim. The motion to convene in executive session for ES -543 was then put, and carried by the following vote: FOR EXECUTIVE SESSION ON ES -543: Bynum, Chang, Nakamura, TOTAL — 6, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -543: Kuali`i TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL — 0. The motion to convene in executive session for ES -544 was then put, and carried by the following vote: FOR EXECUTIVE SESSION ON ES -544: Bynum, Chang, Kuali`i, TOTAL — 6, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -544: Nakamura TOTAL — 1, EXCUSED & NOT VOTING: None TOTAL — 0. The motion to convene in executive session for ES -545 was carried by the following vote: FOR EXECUTIVE SESSION ON ES -545: Bynum, Chang, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -545: Kuali`i, Nakamura EXCUSED & NOT VOTING: None The motion to convene in executive session for ES -546 was carried by the following vote: FOR EXECUTIVE SESSION ON ES -546: Bynum, Chang, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -546: Kuali`i, Nakamura EXCUSED & NOT VOTING: None The motion to convene in executive session for ES -547 was carried by the following vote: FOR EXECUTIVE SESSION ON ES -547: Bynum, Chang, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -547: Kuali`i, Nakamura EXCUSED & NOT VOTING: None then put, and TOTAL — 5, TOTAL — 2, TOTAL — 0. then put, and TOTAL — 5, TOTAL — 2, TOTAL — 0. then put, and TOTAL — 5, TOTAL — 2, TOTAL — 0. COUNCIL MEETING - 49 - May 23, 2012 The motion to convene in executive session for ES -548 was then put, and carried by the following vote: FOR EXECUTIVE SESSION ON ES -548: Bynum, Chang, Nakamura, TOTAL — 6, Rapozo, Yukimura, Furfaro AGAINST EXECUTIVE SESSION ON ES -548: Kuali`i TOTAL —1, EXCUSED & NOT VOTING: None TOTAL — 0. Council Chair Furfaro: We are going to take a 10- minute recess and meet in the Executive Chambers at 22 minutes after three. There being no objections, the meeting was recessed at 3:11 p.m. The meeting was called back to order at 5:41 p.m., and proceeded as follows: Council Chair Furfaro: BC, thank you very much. I was about 40 minutes off on my guess. Sorry about that. Going forward, we have some items that we need to close out on since the executive session. The Clerk's Office, will you read the items. (Councilmember Bynum was noted excused.) C 2012 -166 Request (05/16/2012) from the Office of the County Attorney for authorization to expend additional funds up to $75,000.00 to enable special counsel's continued representation in Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. 10 -1 -0161 (Agency Appeal), Fifth Circuit Court, currently being appealed by Mr. Sheehan under Intermediate Court of Appeals No. CAAP -11- 0000601, Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. CV12 -00195 HG BMK, U.S. District Court, and related matters: Ms. Yukimura moved to approve C 2012 -166, seconded by Mr. Chang. Council Chair Furfaro: Discussion Members? If not... Councilmember Nakamura. Ms. Nakamura: Just a follow -up question. is remaining in the existing allocation? Do we know how much There being no objections, the rules were suspended. ALFRED B. CASTILLO, JR., County Attorney: County Attorney Al Castillo. Councilmember Nakamura, I am sorry. What we will do is the next time we have requests on an ongoing counsel, we will have how much we have spent and how much we have left, and I can only assume that it is because we are nearing the end amounts that we are coming back again. However, I will get that information for you on this Sheehan case. Council Chair Furfaro: Mr. Castillo: Council Chair Furfaro: Mr. Rapozo: would like to have it before Mr. Minkin on the phone, but Please do that and send it over to us. Yes. Thank you. Mr. Rapozo. Al, how time sensitive are these items because I the vote, and I know we have some of them from we did not get this one. COUNCIL MEETING - 50 - May 23, 2012 Council Chair Furfaro: I think this is the only one we did not get. We have 10 minutes on the tape, Al. Is there anybody in your office that if we took the tape change now you could make that call? Mr. Castillo: Yes, it is almost 6 o'clock and Pam was here until maybe 15 minutes ago and she left. She had me sign some documents. Time sensitive only in terms of we are trying to make sure that we use up this year's funds rather than go into next year's. Council Chair Furfaro: I guess the point is we are trying to find out before we vote tonight what that piece is. Is there any way you can call the contracted attorney's office? Mr. Castillo: I can try. Council Chair Furfaro: We are going to take a break, BC, and would you do a tape change now? Sorry to do that, but this is where we are at. Ten minutes for you to make a phone call, Al? We are in recess. There being no objections, the meeting was recessed at 5:44 p.m. The meeting was called back to order at 5:54 p.m., and proceeded as follows: Council Chair Furfaro: We are back from our break. A question was posed to the County Attorney by Councilmember Nakamura. Councilmember Nakamura, you have the floor. There being no objections, the rules were suspended. Mr. Castillo: I have that information for you. Thank goodness that David Minkin was still working hard at his office. The contract extensions amounted to 195. We have already paid him 150. We have $45,000 left. Council Chair Furfaro: Any more questions of the County Attorney? Repeat the executive session number, please. Mr. Castillo: 45 left. Ms. Nakamura: Thank you. EDUARDO TOPENIO, JR., Administrative Assistant: This is the executive session ES -544, sir. Council Chair Furfaro: Which shows a balance of $45,000 in the existing account. Ms. Yukimura: Out of an original total of... Council Chair Furfaro: 195. Any more questions? None? Let us take a roll call vote, please. There being no objections, the meeting was called back to order, and proceeded as follows: COUNCIL MEETING - 51 - May 23, 2012 vote: vote: The motion to approve C 2012 -166 was then put, and FOR APPROVAL: Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro AGAINST APPROVAL: None EXCUSED & NOT VOTING: Bynum C 2012 -167 Request (05/17/2012) from the Office of the County Attorney for authorization to expend up to $75,000 for special counsel's continued representation in Kaua`i Springs, Inc. vs. County of Kaua`i, et al., Civil No. 07 -1 -0182, Kaua`i Springs, Inc. vs. Planning Commission of the County of Kaua`i, Civil No. 07 -1 -0042, and related matters: Ms. Yukimura moved to approve C 2012 -167, seconded by Mr. Chang, and carried by the following vote: The motion to approve C 2012 -167 was then put, and failed by the following FOR APPROVAL: Chang, Kuali`i, Yukimura, Furfaro AGAINST APPROVAL: Nakamura, Rapozo EXCUSED & NOT VOTING: Bynum Mr. Rapozo: Mr. Chair. Council Chair Furfaro: Mr. Rapozo. carried by the following TOTAL — 6, TOTAL — 0, TOTAL — 1. TOTAL — 4, TOTAL — 2, TOTAL —1. Council Chair Furfaro: I think that might pose us a problem. So it did not pass. Do I have any reconsiderations at the table? Mr. Rapozo: I could state my reason. Council Chair Furfaro: Go ahead. Mr. Rapozo: I am not comfortable approving funds just because we are approaching the end of the fiscal year. We have not even received the ICA ruling yet. There is some money left in that account as we speak and if in fact there is a request for more funds, then I will definitely approve it. At this point, the case is stagnant, and like I said, there are funds in that account from prior approval. Just because we are approaching to the end of the fiscal year, I do not think that is justification to be approving the funds. So that is my position. Council Chair Furfaro: Councilmember Nakamura. Ms. Nakamura: I share the same concern and we will have an ICA decision in June /July and at that point, I am totally open to providing funding depending on what the needs are and based on the strategy that the County Attorney wants to take. So I am very open to it at that time. Council Chair Furfaro: So we have a 4 -2 vote, it does not get the required 5, and the rationale is out on the table for the County Attorneys. C 2012 -168 Request (05/17/2012) from the Office of the County Attorney for authorization to expend up to $50,000 for special counsel's continued representation in Grant W. Gribble vs. County of Kaua`i, et al., Civil No. 08 -1 -0231 (Fifth Circuit Court), and related matters: Ms. Yukimura moved to approve C 2012 -168, seconded by Mr. Chang. COUNCIL MEETING vote: FOR APPROVAL: None AGAINST APPROVAL: Chang, Kuali`i, Nakamura, Rapozo, Yukimura, Furfaro EXCUSED & NOT VOTING: Bynum - 52 - May 23, 2012 Mr. Rapozo: For the same reasons, I am not going to be supporting it. I will say up front so we do not have to revisit it. In this one, the same thing. I think we probably have about close to 20% of the funds utilized from the original appropriation, leaving somewhere around 80% left. So again, I think premature, and we will see what happens as the case moves along. Council Chair Furfaro: Just FYI, my notes show that there is approximately $33,000 left and consumed $17,000. Thank you. Continue the roll call. The motion to approve C 2012 -168 was then put, and failed by the following TOTAL — 0, TOTAL — 6, TOTAL — 1. Council Chair Furfaro: And you heard the rationale as there is a balance to consider available for that account. C 2012 -169 Request (05/17/2012) from the Office of the County Attorney for authorization to expend funds up to $75,000.00 to retain special counsel to represent the County of Kaua`i in Cathy Song, et al. vs. County of Kaua`i, et al., Civil No. 10 -1 -0171 (Fifth Circuit Court), and related matters: Ms. Nakamura moved to approve C 2012 -169, seconded by Ms. Yukimura, and carried by the following vote: FOR APPROVAL: Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 6, Yukimura, Furfaro AGAINST APPROVAL: None TOTAL - 0, EXCUSED & NOT VOTING: Bynum TOTAL — 1. C 2012 -170 Communication (05/17/2012) from Councilmember Yukimura, requesting Council approval of her request that the Board of Ethics conduct an investigation of whether violations of the Code of Ethics have occurred in connection with the creation and operation of the POHAKU Program and related matters: Ms. Nakamura moved to defer C 2012 -170 until June 6 or 13. Council Chair Furfaro: There is a request for some discussion before. I will entertain a motion to defer, but is there any dialogue on this item? Mr. Rapozo moved to receive C 2012 -170 for the record, seconded by Mr. Chang. Council Chair Furfaro: Is there any dialogue on this item? Ms. Yukimura: Yes, thank you, Mr. Chair. Council Chair Furfaro: You have the floor. Ms. Yukimura: Yes, I am proposing here that the Council send a communication to the Board of Ethics requesting an investigation of potential ethic violations on the part of the Office of the Prosecuting Attorney regarding the POHAKU Project. Just on public record alone from a website and from the COUNCIL MEETING Department of Commerce and Consumer Affair Registration, there appears to be use of County address for a private company and business. There also seems to be a website, the official POHAKU website directs payment to a private business, and there has not been provided any copy of a contract with that business. And so I think those are issues that need to be looked at by the Ethics Board. I am not asking the Council to resolve the issues, but just to refer them to the Ethics Board because I do believe it is part of our job in that we have sworn to uphold the Charter to bring possible violations like this to the Ethics Board for determination. And that is why I am making the request. I think it is important that the Council stand for high standards of ethics and performance, and by making this referral, we are asking the body that under the Charter is designed to make these determinations, we are asking them to look into the matter. Mr. Rapozo: Council Chair Furfaro: Mr. Chair? Mr. Rapozo. - 53 - May 23, 2012 Mr. Rapozo: First of all, this Council has reached for higher standards. We have attempted to get to the higher standard. We have had numerous executive sessions on this matter. We have had numerous dialogues with the County Attorney. We have had dialogue with the Finance Department. We have had dialogue with the Administration. I think, Mr. Chair, you have sent over numerous communications. We have, in fact, taken this to the highest standard I have ever seen in my career on the County Council. Obviously I am not going to be supporting this simply because although we cannot disclose what we talked about in executive session, I can disclose that in fact there is an inquiry that has been started by the Administration and in fact we have not gotten the results of that and that we will eventually get the results of that. I am not sure what the motivation for this is, but we have done our job, Mr. Chair. This Council has done its job more than in any other situation I have ever seen on this Council when we have had potential ethical violations or even some potential criminal allegations within the County, and yet this Council has done its diligence by forwarding it to the proper authority, and we have done that. We have done that numerous times. And I am hoping we can finally put this issue to rest and let the appropriate agencies take care of this situation. As far as I am concerned, the Administration has responded. They have responded appropriately and they are taking the necessary action that we have requested time and time again. If Councilmembers, individual Councilmembers want to pursue it on a separate track, feel free to do so, but I do not believe that the Council has...I believe we have done our job and in fact will be following up with the Administration's inquiry and I think that is sufficient at this point. So I will not be supporting this. Thank you. Council Chair Furfaro: Other members? Vice Chair, you have the floor. Ms. Yukimura: Yes, I do not disagree if there needs to be a deferral and I am not clear that the Administration is investigating the ethics charges. I believe they are investigating, as they should, possible procurement violations. But I do not know that the ethics charges have been brought before the proper body, and I think it would be appropriate for us to do that. I now have a statement that Councilmember Bynum asked to be read into the record. He is absent because his daughter is right in the middle of childbirth, and he says that he has cleared it with the County Attorney in terms of relevance and it being okay because it does not disclose improperly any information. So, Chair, with your permission I would like to read it. COUNCIL MEETING - 54 - May 23, 2012 Council Chair Furfaro: You have it? May I also... if there is a need for the County Attorney to comment at any point, please be available and I will let Vice Chair Yukimura read Mr. Bynum's statement. Ms. Yukimura: And I want to say that this is his statement. It does not reflect my position exactly. So I am just reading it for him. "On April 11, 2012, there was put on the agenda for executive session matters that included the POHAKU Program. An executive session was posted for a briefing related to POHAKU on April 18, 2012. On April 18, Deputy County Attorney Mona Clark responded to Members' questions in open session. Ms. Clark indicated that the information was time sensitive stating, "I think it is important that the Council has as much information as possible as soon as possible." Councilmember Yukimura asked if there were possible liabilities for the Council and the County that could increase if additional time went by and the answer was yes. In spite of this, a majority of the Council voted to delay the discussion for two weeks. On May 2, 2012 the briefing was finally held. However, no action was taken. I have concerns. Among them are the use of County address as the address for a registered agent of a private business, the fact that the Pohakuprogram.com website directs payment to a private business and the Council has not been provided with a copy of any contract with that business, and the third point, the Prosecutor has refused to answer questions from the Council related to the POHAKU Program until the County provides her special counsel for legal representation. Subsequently we heard that the POHAKU Program had stopped operating. However, Ms. Iseri - Carvalho said last Tuesday, May 15, on the Council floor, "Our office can internally run the POHAKU Program, which we will continue to do almost immediately." As of yet no one is looking into possible Charter violations and we have learned today that there is an investigation. After what, in my opinion, is too much delay, the posting for this body to take appropriate action is finally here before us today. County officials take an oath to uphold the Constitution of the United States, the Constitution of the State of Hawai`i, and the Kaua`i County Charter. I have been told by all County Attorneys that have held the Office since I became a Councilmember that when a question regarding a potential violation of the Charter is raised, the Council has a duty to see that an appropriate inquiry is held. The Board of Ethics is an appropriate body for such an inquiry, so I will obviously support this motion." I have just read a statement by Councilmember Bynum, who cannot be here because of a family emergency, but wanted this read into the record. Council Chair Furfaro: Thank you. Ms. Yukimura: Thank you, Chair. Council Chair Furfaro: Any more testimony before I speak? I want to say I do acknowledge Mona Clark's comments as quoted in Mr. Bynum's letter. It is important that the information be made available and I think it is important that the Council has as much information as they possibly can, also noting please that there is an investigation on particular points that are very close to being presented in a summary from the County Attorney, and I am going to take my lead on asking COUNCIL MEETING - 55 - May 23, 2012 for a deferral on this because we should be getting information relatively soon. That is what I am looking for. I cannot make the motion. You have the floor, yes. Ms. Nakamura: I would be happy to make that motion, but I would like to just respond to one thing that Mr. Bynum said that the deferral back in April 18 2012, I think one of the concerns that was raised was the proper notice in the posting of that item that related to a grant submittal, yet the topic of the discussion in executive session was a little more specific to one program. And so because there was a threat of an OIP investigation, we felt that it was appropriate to defer it at that time. And I just wanted to put that on the record that that was one of the reasons why that happened. I do not think that it was because people were not concerned and wanting to deal with the issue, but that the notification was not printed correctly. Council Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Just one more clarification because I thought I clarified it the last time, but Mr. Bynum continues to state the Prosecutor had refused to answer questions. The fact of the matter, and Mr. Castillo can attest to this, and again, Mr. Chair, you were absent that day, you were out, I believe you were on the North Shore, and I was running the meeting. In fact, it was the County Attorney's Office that advised this Council not to discuss and ask any questions pertaining to the POHAKU Program So that is the reason for us not asking and that is the reason for not getting any responses. I just want to make sure that clarification is made as well because it was, again, on the advice of the County Attorney that the POHAKU Program not be discussed until, in fact, special counsel be provided. Council Chair Furfaro: Thank you and just to clarify the record, as many people know, I have surfed since I was eight years old. I was not out on the North Shore surfing. I was at a medical emergency. Vice Chair Yukimura. Ms. Yukimura: I may be wrong, but I think what Councilmember Nakamura said happened happened before April 11 and then this was when we deferred it the second time that there had been a proper posting, but we have to check that. And then I want to say that it is unbelievable that the Prosecutor is asking for special counsel on this program and that she is using that as a shield to not answer questions that are totally legitimate about both a budget issue as well as a public program. Council Chair Furfaro: I would rather not have any further discussion. The facts are that there are some of us that want to have as much information as we can. There are at least three pieces of correspondence out from myself to the Administration, Contracting and Purchasing. There is a possibility relatively soon we are going to have some feedback on that investigation. That is the reason that I would support a deferral here. Ms. Nakamura: So I will just make the motion then. Council Chair Furfaro: Go right ahead. Ms. Nakamura: I just wanted to say that I think the items that you bring up are important, and we need to address the bullet points that you have raised in this correspondence. And I think that once we get the investigative report COUNCIL MEETING - 56 - May 23, 2012 and understand the direction that will be taken that we can then determine what more needs to be done. So I do support that direction and so I will make the deferral... the motion to defer. Ms. Nakamura moved to defer C 2012 -170 until June 6 or 13 depending on the availability of the recommendation from the County Attorney, seconded by Mr. Chang, and carried by a vote of 5 -1 -1 (Councilmember Rapozo voting no, and Councilmember Bynum excused). Council Chair Furfaro: On that note...I think we are finished with our business today. One more item? We are not finished. Resolution No. 2012 -42, RESOLUTION AUTHORIZING THE ACQUISITION OF THE FEE SIMPLE INTEREST IN LANDS REQUIRED FOR PUBLIC USE, TO WIT: THE PEDESTRIAN AND BICYCLE PATH WHICH CONSTITUTES PART OF PUBLIC PARK SYSTEM, SITUATE AT WAIPOULI, DISTRICT OF KAWAIHAU, COUNTY OF KAUAI, HAWAI`I, AND DETERMINING AND DECLARING THE NECESSITY OF THE ACQUISITION THEREOF BY EMINENT DOMAIN: Ms. Yukimura moved for passage of Resolution No. 2012 -42 on first reading, that a public hearing thereon be scheduled for June 13, 2012, and that it return to Council, seconded by Mr. Chang, and carried by the following vote: FOR PASSAGE: Chang, Kuali`i, Nakamura, Rapozo, TOTAL — 6, Yukimura, Furfaro AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum TOTAL — 1. Council Chair Furfaro: Before we adjourn today, I would like to offer a moment for Vice Chair Yukimura for personal privilege on items that perhaps need scheduling of a site visit, and Vice Chair Yukimura, you have the floor. Ms. Yukimura: Thank you. I just wanted to share with the Council that I spoke recently to Rodney Haraguchi, and the taro farmers in Hanalei are experiencing a tremendous problem with damage to their crops from the birds in the refuge and they would like to ask us to come so that we can understand the issues before them. They are, I believe, it sounds like in a crisis mode. Hundreds of thousands of pounds of taro per year are being lost and they are asking for some simple approval for some protection of the crop, not any damage to the birds. And so I have asked the Chair if we could schedule a field trip over there, but 80% of the taro grown in Hawai`i is grown on Kaua`i, and a large amount of it in Hanalei. So it is the first crop of our island and of our State, and we need to, I think, educate ourselves about it and see what we can do in our roles to assist for the resolution of this problem. Council Chair Furfaro: Now as we believe it might be either June 6 or June 7, something of that nature, and I believe Mr. Rapozo may be out of County. Ms. Yukimura: We are not setting anything here today. I just wanted to give a heads -up that the request has been made to the Chair to schedule a time. So whenever in your judgment... Council Chair Furfaro: And I guess I just want to point out if it is that Thursday or Friday, Mr. Rapozo may be out of County. Ms. Yukimura: Then whatever you feel is workable. COUNCIL MEETING - 57 - May 23, 2012 Council Chair Furfaro: Okay and I would also want to make sure that we include representatives from Economic Development to be part of that visit. Ms. Yukimura: Yes. I think the Mayor and Mr. Costa have been out there already, as have Mr. Aila from DLNR and Mr. Kokubun, Chair of the Department of Ag. Council Chair Furfaro: And I get out there off and on, but this is a great pleasure. If you want to have an early site inspection, I have to only roll down the hill. Ms. Nakamura: Can I just request that a representative of the Wildlife Refuge be there? Ms. Yukimura: That is appropriate, thank you. Council Chair Furfaro: I will take care of that request since she is my neighbor. Okay, I will take care of informing them of the date we select for the site inspection. So on that note, I think we are finished with our business for this evening. Thank you everyone. ADJOURNMENT. There being no further business, the meeting was adjourned at 6:20 p.m. Respectfully submitted, • RICKY WATANABE Ewa County Clerk (May 23, 2012) FLOOR AMENDMENT Resolution No. 2012 -22. ATTACHMENT NO. 1 INTRODUCED BY: DICKIE CHANG (by request) Amend Resolution No. 2012 -22 by amending Section 4, to read as follows: SECTION 4. The County Attorney and County Clerk shall approve the wording of the ballot question, which shall be substantially in the following form: [ "Shall the terms "must" and "shall," when used in the Kaua`i County Charter, be interpreted as mandatory directives and shall the term "may," when used in the Kaua`i County Charter, be interpreted as permissive ? "] "Shall the terms "must" and "shall ", when used in the Kaua`i County Charter, be construed as mandatory instead of directory, and shall the term "may" be construed as permissive ?" (Material to be deleted is bracketed. New material is underscored.) Resolution No. 2012 -22 INTRODUCED BY: JOANN A. YUKIMURA Amend Resolution No. 2012 -22 by amending Section 2 to read as follows: SECTION 2. follows: Article XXIII, Section 23.01 of the Charter is hereby amended as "Section 23.01. Definitions. A. The term "agency" shall mean any office, department, board, commission or other governmental unit of the county. B. The term "employee" shall mean any person, except an officer, employed by the county or any department thereof, but the term shall not include any independent contractor. C. The term "law" shall mean any law of the State of Hawai`i - 47 - (02/09) or any ordinance or the county of Kaua`i or any rule or regulation of any department having the force and effect of law. D. The term "officer" shall include the following: (1) Mayor and members of the council. (4) Deputies of the county attorney. E. The term "State" shall mean the state of Hawai`i. (Material to be deleted is bracketed. New material is underscored.) ATTACHMENT NO. 2 (2) Any person appointed as administrative head of any agency of the county or as a member of any board or commission. (3) The first deputy appointed by the administrative head of any department. F. The terms "must" and "shall ", as they relate to dates or deadlines to take action, are mandatory. The term "may" is _permissive." May 23, 2012 FLOOR AMENDMENT BILL NO. 2434,Draft 1, Relating to the Building Code Introduced by: Tim Bynum, Councilmember Amend Bill No. 2434, Draft 1, as follows: ATTACHMENT NO. 3 1. Delete change number (125) amending Section R202 and renumber all subsequent change numbers. "{ (125) Amend Section R202. The definition of "Wind -Borne Debris Region in Section R202 is amended to read. "WIND -BORNE DEBRIS REGION" means portions of hurricane -prone regions that are within one (1) mile (1.61 km) of the coastal mean high water line where the effective basic wind speed is 110 mph (48 m /s) or greater; or portions of hurricane -prone regions where the effective basic wind speed is 120 mph (53 m /s) or greater.]" 2. Insert an appropriate change number to Section R202 and amend the definition of "Wind -Borne Debris Region in Section R202 to read as follows" "(125) Amending Section R202. Section R202 is amended to read: (a) The following paragraph is added before the definition of `ATTIC': ASSISTANTS. When the term "assistants" used in this code, it shall be construed to mean the authorized representatives of the Building Official. (b) The following paragraph added before the definition of `BACKFLOW, DRAINAGE'. (c) AUTHORIZED REPRESENTATIVES. When the term "Authorized Representatives" is used in this Code, it shall be construed to mean all building plans examiners, building inspectors and their supervisors designated as subordinate officers to the Building Official in enforcement of this Code. By amending the definition of `BUILDING, EXISTING' to read: BUILDING, EXISTING is a building for which legal building permits has been issued, or one, which complied with the Building Code in effect at the time the building, was erected. 1 (d) By amending the definition of `BUILDING OFFICIAL' to read: ATTACHMENT NO. 3 BUILDING OFFICIAL shall mean the County Engineer or his authorized representative. (e) The following paragraphs added before the definition of `CEILING HEIGHT'. CARPORT is private garages, which is at least 100 percent open on one side and with 50 percent net openings on another side or which is provided with an equivalent of such openings on two or more sides. A private garage which is 100 percent open on one side and 25 percent open on another side with the latter opening so located to provide adequate cross ventilation may be considered a carport when approved by the building official. (f) The following paragraph added before the definition of `FENESTRATION'. FAMILY shall be as defined in the Comprehensive Zoning Ordinance of the County except that an adult residential care home, a special treatment facility, or other similar facility shall be limited to five persons in order to be considered under this code. (g) The following paragraph added before the definition of `HORIZONTAL BRANCH, DRAINAGE.' HISTORICAL BUILDINGS are building officially listed on the State of Hawaii or National Register of Historical Places. (h) By amending the definition of `KITCHEN' to read: KITCHEN shall be as defined in the Comprehensive Zoning Ordinance. (i) By amending the definition of `PERSON' to read: PERSON. Any individual, firm partnership, association, corporation or utility company" shall include each and every owner of any whole or fractional interest in the properly concerned, whether in fee, any lesser freehold or tenancy at will. V: \CS OFFICE FILES \AMENDMENTS \2010 -12 term \Bill 2434, Draft 1 FA, (TB), YS_il.doc 3 ATTACHMENT NO. 3 (i) By amending the definition of Wind -Borne Debris Regions" to read: WIND -BORNE DEBRIS REGION. Portions of hurricane -prone regions that are within one (1) mile (1.61 km) of the coastal mean high water line where the effective basic wind speed is 110 mph (48 m /s) or greater; or portions of hurricane -prone regions where the effective basic wind speed is 120 mph (53 m /s) or greater." (New material to be added is underscored. Material to be deleted is bracketed.)