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HomeMy WebLinkAbout2011_0228_MinutesOpen_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 3/28/11 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I February 28, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:04 pm I End of Meeting: 5:25 pm Present Chair Sherman Shiraishi, Vice-Chair Patrick Stack, Members: Mary Lou Barela, Joel Guy, Ed Justus, Carol Suzawa, Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis, Administrator John Isobe, Administrative Aide Paula Morikami; County Clerk Peter Nakamura Audience Members: Rich Hoeppner, Lonnie Sykos, Ken Taylor, Linda Harmon, Glenn Mickens Excused Absent SUBJECT DISCUSSION ACTION County Clerk Peter Nakamura administered the Oath of Office to Patrick Stack Chair Shiraishi congratulated Patrick Stack on prior to the meeting being called to order. his reappointment to the Kaua'i Charter Review Commission and thanked him for his continued service on the Commission. Call To Order Chair Shiraishi called the meeting to order at 4:04 pm with 7 Commissioners present. Approval of Rich Hoeppner asked for a point of order stating that the two items listed as Agenda Agenda Item CRC 2011-02 could not be put on the same ballot question as they are separate sections of the Charter. This should be 2 separate agenda items. Chair Shiraishi took note of the objection. Mr. TenBruggencate moved to approve the agenda as circulated. Mr. Justus seconded the motion. Motion carried 7:0 Approval of Open Session Minutes of January 24, 2011 Ms. Suzawa moved to approve the minutes as Minutes circulated. Ms. Barela seconded the motion. Motion carried 7:0 Business CRC 2011-01 Discussion and decision-making on proposing a Charter amendment to correct non-substantive items as they relate to grammar, spelling and formatting errors in the Charter (on-going discussion from 1/24/11) a Review of and decision-making on proposed Press Release Charter Review Commission Open Session February 28, 2011 Page 2 SUBJECT DISCUSSION ACTION seeking public input on procedures to correct non-substantive items as they relate to grammar, spelling and formatting errors in the Charter b) Guide for Charter Review consideration as it relates to gender inclusive language provided by Ms. Carol Bain Chair Shiraishi said the gender neutral language submittal from Carol Bain was very educational. The Chair further noted concerns brought up previously by Ken Taylor in proposing a charter amendment to correct grammar and make it gender neutral; would this be one charter amendment or would each individual section have to have its own proposed charter amendment which would make it cumbersome. Secondly, a charter amendment has to be in Ramseyer format which would present a lot of reading material for the public. With that in mind, staff prepared a proposal that would let the County Council approve charter amendments of a non- substantive nature relating to grammar or gender neutral language. (Chair Shiraishi asked to take item CRC 2011-02 out of order since Mr. Nakamura, County Clerk, was present in the room. The meeting returned to item CRC 2011-01 right after the request was made to Mr. Nakamura to provide an explanation of the difference between eligible voters (Charter §22.03 C Initiative & Referendum) and voters registered in the last general election (Charter §24.01 B Charter Amendments) Ms. Barela noted that legal papers such as corporation papers or by-laws making gender neutral changes do not have to go to the Board for approval when it does not take away from the validity of the by-laws. Mr. Stack pointed out that the gender inclusive language provided by Ms. Bain was written for the UK and the language is different so whatever is considered for our Charter should not be a carbon copy of what was written for citizens Charter Review Commission Open Session February 28, 2011 Page 3 SUBJECT DISCUSSION ACTION in the United Kingdom. Asked if gender neutral changes would be handled by reproducing the entire Charter in Ramseyer format or would there be a separate charter question for each section where there is a gender change, Mr. Isobe said that the Big Island submitted a comprehensive charter amendment to change words, gender, corrections in spelling and grammar which was placed on the ballot and did pass. Mr. Justus asked the County Attorney to offer an opinion on whether the Commission could change the gender neutrality language without an amendment, would they have to submit a separate amendment for each correction made or could they made the entire charter gender neutral and present it as one amendment. Attorney Winn pointed out that the Charter is a government document and changes could not be made without the people saying it was okay. Charter §24.03A says that unless a new charter is submitted to the voters each amendment to the charter shall be voted on separately. Case law has said that if a proposal has 2 or more changes that are substantive and not closely related it would violate this provision; the flip side is if it is non-substantive and closely related it could probably be done as one question but that is without specific knowledge of what the Charter is doing at this time. Attorney Winn thought the Commission might be able to include non-substantive changes as one amendment because the proposal would be non-substantive and the changes closely related. Lonnie Sykos—Mr. Sykos said his concern was of a greater legal matter and raised an issue with changes in punctuation such as a comma, an apostrophe or semi-colon which could create the opposite meaning. He asked who would be the non-partisan, non-political, legal entity to review the language and tell the public that the intent had not changed. While Mr. Sykos said he was not opposed to the county attorneys doing the changes, he questioned whether or not it would require an outside legal opinion. Mr. TenBruggencate asked Mr. Sykos if he considered the Commission, Charter Review Commission Open Session February 28, 2011 Page 4 SUBJECT DISCUSSION ACTION which is a panel of citizens, to be the people who should be doing this work or should it be someone from outside and if so, who from the outside. Mr. Sykos said he presumed they would hire outside legal counsel who specialized in contract language or whatever the specialty would be for the charter. Ken Taylor—Mr. Taylor agreed with most of Mr. Sykos' comments. Changing a word or comma could change the whole meaning of a document. If you want to make a change to a charter item it has to be put to a vote of the people, not in a blanket process. Rich Hoeppner—Mr. Hoeppner said that the Charter should contain one simple section stating that"he"means both genders. Chair Shiraishi said Charter §23.17 states When any personal pronoun appears in this charter, it shall be construed to mean either sex. Mr. Hoeppner said if it was already part of the charter, then it should be left alone and then requested a legal opinion of his initial request as to whether the two charter sections should be 2 agenda items or not. Chair Shiraishi thanked Mr. Hoeppner for his opinion and noted that his point of order was taken for the record. Linda Harmon—Ms. Harmon said changing pronouns to he/she instead of he is not so hard and does not see any reason for confusion with the meaning. The writers of the Charter did not say they wanted to exclude women and she does not understand the reason for wanting an amendment. Mr. Justus moved to defer CRC 2011-01 to the March meeting pending an opinion from the County Attorney on whether non-substantive changes can be made to the Charter without going through the amendment process and, if not, does each non-substantive change require a separate amendment or can all non-substantive changes be included as one amendment. Ms. Charter Review Commission Open Session February 28, 2011 Page 5 SUBJECT DISCUSSION ACTION Barela seconded the motion. Motion carried 7:0 Attorney Winn asked that the request for an opinion be sent to her in writing; Staff to initiate request for the Commission. Mr. TenBruggencate said he would personally vote against passing off making changes to the Charter to the County Council because that is the responsibility of the Charter Commission. CRC 2011-02 Discussion and possible decision-making on changing the required voter percentages for either or both Section 24.01 B (Charter Amendments by petition signed by 5% of registered voters) and Section 22.03 C(Initiative & Referendum by 20% of registered voters) of the Kauai County Charter. a) Comparison chart of signature requirements by County for Charter Amendments and Initiative Petitions Chair Shiraishi asked Peter Nakamura, County Clerk, to explain the difference between eligible voters (Charter §22.03 C Initiative & Referendum) and voters registered in the last general election (Charter §24.01 B Charter Amendments). Mr. Nakamura said he has not had experience with Initiative & Referendum during his time as County Clerk but had processed 2 charter amendment petitions and was fairly clear on what those requirements were. Mr. Nakamura asked the Commission's indulgence to allow the County Council staff to research the last time an Initiative was on the ballot to track historically how they identified that particular group. Mr. TenBruggencate asked if Mr. Nakamura's office would also propose a uniform language for future consideration that is understandable by the public as to its meaning. Mr. Nakamura said his office would also compare language from other charters in Hawai'i. (Return to item CRC 2011-02 following the completion of the discussion for item CRC 2011-01) Charter Review Commission Open Session February 28, 2011 Page 6 SUBJECT DISCUSSION ACTION Chair Shiraishi said that a point of order was noted by Mr. Hoeppner on this agenda item. Attorney Winn said there was no violation of the Sunshine Law by listing the 2 sections as one agenda item for discussion. Mr. TenBruggencate did agree that if this goes to the ballot it would have to be listed as 2 separate items but for discussion purposes there is a relationship since one of the key items is the language of how to identify the requirements of each segment of the voting population. Chair Shiraishi noted that Staff originally listed this as 2 separate agenda items but he decided to combine them into one agenda item for discussion and comparison purposes. Asked for the attorney's perspective, Attorney Winn could not provide an answer to the difference between eligible voters and registered voters without doing research. Ms. Suzawa said the comparison with the other counties reconfirms that we might not be in the ballpark with our percentage requirements and she would like to see a comparison between how many voters voted for the charter amendments as compared to how many voted for elected officials in the previous elections; Staff will work with Ms. Suzawato gather the information. Mr. TenBruggencate pointed out that summary reports from the past 5 elections are available on the State Election's Website. Chair Shiraishi pointed out that Mr. TenBruggencate's proposal of Charter §2401 B was not to increase the percentage but to compare it with the Initiative & Referendum section. Mr. TenBruggencate verified that it was not the intent to increase the number of signatures required for a charter amendment petition and is not a proposal before the Commission. What is being discussed is the disparity in the numbers between the requirements for Initiative & Referendums and charter petitions and whether there should be public meetings to discuss this disparity. Glenn Mickens—There is nothing broke so what are you trying to fix? The 5% is adequate. Rich Hoe ner—There were over 3,300 registered voter signatures gathered Charter Review Commission Open Session February 28, 2011 Page 7 SUBJECT DISCUSSION ACTION on the last citizen's petition to get it on the ballot; it passed with an almost 2:1 margin. If you want to compare 20% (Initiative) with 5% (Charter amendment)these are 2 totally separate Charter issues, one dealing with amendments and one with County Council ordinances. Article 22 is an issue directly involving the Council and its operations and if they want the 20% lowered,the Council should put it on the ballot. To raise the percentage for charter amendments will virtually eliminate public participation; leave it alone. Ken Taylor—There is a simple reason for the difference in the two percentages. Article 22.03 is to challenge an ordinance that Council has put into effect but you do not want someone challenging every ordinance and resolution that the County puts forth so it makes sense to have a high number to challenge those activities. Article 24.01 allows the community to put an issue on the ballot which they feel is not forthcoming from the County. There should be no change to the Charter on these two issues. Lonnie Sykos —He said it never ceases to astound him how unpaid officials do such a good job in dealing with the public and all of their views about their Constitutional liberties and civil rights. His question is whether or not it serves a good purpose to clarify the numbers involved in the 5%, historically, and the numbers involved in the 20%, historically, given they are two completely different bodies. Without having the figures, at this point it could be a false assumption that it requires more signatures at 20%than it does for 5%. Chair Shiraishi asked for a motion to receive the written testimony from the Wailua-Kapa`a Neighborhood Association on agenda item CRC 2011-02 Ms. Barela moved to accept the two and the written testimony from Carl Imparato on agenda item CRC 2011-02. communications as submitted. Mr. Justus seconded the motion. Motion carried 7:0 Charter Review Commission Open Session February 28, 2011 Page 8 SUBJECT DISCUSSION ACTION Mr. TenBruggencate moved to defer CRC 2011- 02 to the March meeting pending the response from the County Clerk clarifying the difference between registered voters and eligible voters. Ms. Barela seconded the motion. Motion carried 7:0 Next Meeting Monday, March 28, 2011 —4:00 pm, Meeting Room 2A/213 Agenda Items CRC 2011-01 and CRC 2011-02 will be carried forth on the March agenda with follow-up from the County Clerk, County Attorney and Staff Adjournment Mr. TenBruggencate moved to adjourn the meeting at 5:25 pm. Ms. Barela seconded the motion. Motion carried 7:0 Submitted by: Reviewed and Approved by: Barbara Davis, Staff Support Clerk Sherman Shiraishi, Chair O Approved as is. O Approved with amendments. See minutes of meeting.