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HomeMy WebLinkAbout2011_0425_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 5/23/11 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date April 25, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:01 pm End of Meeting: 5:41 pm Present Chair Sherman Shiraishi, Vice-Chair Patrick Stack; Members: Mary Lou Barela, Joel Guy, Ed Justus, Carol Suzawa 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: Phyllis Stoessel, Horace Stoessel, Councilmember Tim Bynum Excused Member: Jan TenBruggencate Absent SUBJECT DISCUSSION ACTION Call To Order Chair Shiraishi called the meeting to order at 4:01 pm with 6 Commissioners present Approval of Chair Shiraishi requested approval to amend the agenda by adding the Agenda following items: ➢ Memo from John Isobe dated April 13, 2011 for discussion under Business Item CRC 2011-04 regarding Population and General Election Information for HawaiTs Four(4) Counties ➢ Letter from Peter Nakamura, County Clerk, dated April 21, 2011 for discussion under Business Item CRC 2011-04 and CRC 2011-05 regarding Clarification on Definition & Use of Terms "Registered" vs. "Eligible"voters Ms. Barela moved to approve the agenda as amended. Mr. Justus seconded the motion. Motion carried 6:0 Approval of Open Session Minutes of March 28, 2011 Ms. Barela moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 6:0 Business CRC 2011-01 Discussion and possible decision-making on proposing a Charter amendment to correct non-substantive items as they relate to grammar, spelling and formatting errors in the Charter. (Deferred from 3/28/11 meeting) Charter Review Commission Open Session April 25, 2011 Page 2 SUBJECT DISCUSSION ACTION (a) Charter Review Commission press release seeking public input relating to non-substantive changes to the Charter. (b) Proposed amendment creating a new Section 24.04, Kauai County Charter, relating to non-substantive corrections and revisions. Chair Shiraishi noted the press release was published in The Garden Island and the deadline to send comments to the Commission is May 13. The Chair also requested that the Commission be prepared to discuss the proposed amendment to make non-substantive changes to the Charter and the methods of how these changes should be accomplished. Ms. Barela moved to defer CRC 2011-01 to the May 23 meeting. Mr. Justus seconded the motion. Chair Shiraishi stated that there had been a motion and a second to defer this agenda item to the May meeting pending receipt of public input relating to or in response to the newspaper release and called for discussion. Ms. Suzawa asked if the 1996 proposed amendment to make non- substantive changes to the Charter, which did not pass, was the same as the amendment the Commission is currently reviewing. Mr. Isobe said it was pretty much the same in that it would allow the County, via the adoption of an ordinance after a public hearing,to make non-substantive changes to the Charter. Mr. Justus suggested the reason the amendment was not approved in the past may have been that some did not want to give the County Attorney the power or ability to make or suggest changes to the Charter since they are appointed by the Mayor and they felt an outside independent contractor should be hired. Charter Review Commission Open Session April 25, 2011 Page 3 SUBJECT DISCUSSION ACTION Since the prevailing law is the more stringent of the laws, Ms. Suzawa suggested that in item 9 of the proposed amendment that the word superseded should be replaced with preempted while Chair Shiraishi suggested it read: delete any provision preempted or superseded by either federal law... ... Mr. Justus said rather than deleting the provision they could do a strikethrough (Ramsayer) so you could see the change from what was originally there. Motion carried 6:0 CRC 2011-04 Discussion and possible decision-making on proposed language to amend Charter Section 22.03.C, relating to submission requirements for initiative and referendum petitions. (Deferred from 3/28/11 meeting) (a) Proposed amendment revising Section 22.03.C, Kauai County Charter, relating to submission requirements for initiative and referendum petitions. Chair Shiraishi recalled that Mr. TenBruggencate made a motion at the March meeting to amend this section, Item C by deleting the first registered in the third sentence. Mr. Isobe explained to the Commission that at the March meeting there was no formal proposal that Ramsayered the Charter;the ultimate motion was to defer CRC 2011-04 to the April meeting with no formal action being taken on Mr. TenBruggencate's proposal. When this amendment was drafted it was drafted as if no changes were made since the item was deferred. Chair Shiraishi asked for a motion to amend Item C by deleting the first registered in the third sentence and a second motion to move this for review as to legality by the County Attorney's Office. Charter Review Commission Open Session April 25, 2011 Page 4 SUBJECT DISCUSSION ACTION Ms. Suzawa suggested using the same language in Item B, Section 24.01 and in Item C, Section 22.03 and would prefer both sections be changed to say number of voters registered at the last election rather than number of voters registered in the last general election and delete the word preceding. Mr. Justus moved to delete the first registered and preceding in the third sentence of the proposed amendment for Section 22.03. Ms. Barela seconded the motion. Motion carried 6:0 Ms. Barela moved to refer the amendment as amended for review as to legality by the County Attorney's Office. Mr. Justus seconded the motion. Motion carried 6:0 CRC 2011-05 Discussion and possible decision-making on proposed language to amend Charter Section 24.01.13, relating to the initiation of Charter amendments. (Deferred from 3/28/11 meeting) (a) Proposed amendment revising Section 24.01. B, Kauai County Charter, relating to the initiation of Charter amendments. Mr. Justus moved to refer the amendment for review as to legality by the County Attorney's Office. Ms. Barela seconded the motion. Chair Shiraishi said at this point they were not looking at the percentage of voters required; if they look at including too many issues in a charter amendment there is a greater possibility that the amendment may not pass. Mr. Stack said he would like to see the word apparently removed from the last section of Section 24.01 because it gives a subjective interpretation to signatures which are either valid or invalid. Mr. Nakamura explained the logistics of how signatures are determined as to whether they are apparently genuine or not by an actual comparison of the signature on a petition with the signature on the voter registration Charter Review Commission Open Session April 25, 2011 Page 5 SUBJECT DISCUSSION ACTION application. Mr. Justus and Ms. Barela withdrew their motion and second respectively. Mr. Justus suggested inserting the Office of before the words county clerk in the last paragraph of Section 24.01. Mr. Nakamura thought the words county clerk meant that the person who occupies that office is ultimately responsible and it is a good thing to hold that person to that responsibility. The Office of the County Clerk could fudge that responsibility. Ms. Suzawa suggested valid as a better word than genuine. Mr. Guy suggested inserting registered before voters in the last sentence. Chair Shiraishi read for the record the amended sentence: "Upon filing of such petition with the council,the county clerk shall examine it to see whether it contains a sufficient number of valid signatures of registered voters." Mr. Justus moved to refer the amendment as amended for review as to legality by the County Attorney's Office. Ms. Barela seconded the motion. Motion carried 6:0 CRC 2011-06 Discussion and possible decision-making on proposed language to amend Charter Section 24.03, establishing a permanent Charter Review Commission. (a) Proposed amendment revising Section 24.03 Kauai County Charter, relating to establishing a permanent Charter Review Commission. Ms. Barela pointed out that considering the old language in the charter and with things around us rapidly changing, the County will again go through the same thing we are doing now if there are no changes or updates in the ensuing 10 years. Charter Review Commission Open Session April 25, 2011 Page 6 SUBJECT DISCUSSION ACTION Mr. Guy said he likes the encouragement of involvement in government and this is another venue for the Commission to work on strengthening their relationship with the public. At this point he would support moving this proposed amendment forward. Mr. Stack commented that the two key operative words for the Commission are "necessary" and "desirable". Although things are changing around us, he would not want to see a permanent Charter Commission because he did not think it was "desirable"however it might be "necessary". So given the operative words,this Commission should be in perpetuity. Chair Shiraishi stated this was not an easy Commission and that continuity was important. To bring in a new Commission every 10 years puts their learning curve very high. While a permanent Commission might be a drain on County resources it would be beneficial and if changes are not "necessary" or"desirable",they would not schedule any meetings or have abbreviated agendas. The benefit of having a perpetual Commission would allow more time for deliberation and thought. Mr. Guy said he would like to learn what strain a permanent Commission would put on the resources. Mr. Justus moved that the Commission request what it actually costs the County to operate the Mr. Guy said that charter amendments have a financial obligation to the Charter Review Commission. County which is a big part of the Commission's responsibility and we should continue to look at the effects of these amendments on the County's budget. Mr. Justus withdrew his motion. Ms. Suzawa said charter amendments should not be changed frequently; amendments should be something that will work for a lifetime. Charter Review Commission Open Session April 25, 2011 Page 7 SUBJECT DISCUSSION ACTION Amendments should not accommodate a small number of interests and provide no balance. A full time Commission should review the process by which amendments get on the ballot to see that they comply with and meet the guidelines; too many changes from too many places makes for a document that she might not be happy with. Phyllis Stoessel read to the Commission her rationale from when she first proposed a standing or permanent Commission which turned into a ten year Commission. In 2006, because of the previous 10 year gap, the Charter Commission had to go through a lot just to get started unlike the continuity when Commissioners rotate off after 3 years. Right now, the Charter is a difficult document to use and the Commission needs to do the housekeeping changes that are being proposed. Mrs. Stoessel said she would heartily encourage making the Commission a permanent Commission. When asked whose responsibility it would be to make the non-substantive changes to the charter, Ms. Stoessel believed it was the Charter Review Commission's responsibility. Ms. Barela moved to defer CRC 2011-06 to the May 23, 2011 meeting in order to receive comments from the Administration and Council. Mr. Justus seconded the motion. Motion carried 6:0 CRC 2011-07 Discussion and possible decision-making on proposed language to amend Charter Section 1.03, clarifying the existing Charter provisions related to the election of County Officers. (a) Proposed amendment revising Section 1.03 Kauai County Charter, relating to the election of County Officers. Chair Shiraishi pointed out that on page 3 of the proposed amendment the last item listing Tie Votes should read item D and not C as listed. Mr. Justus moved to change the wording for Tie Votes to read: "In the event of tie votes for an Charter Review Commission Open Session April 25, 2011 Page 8 SUBJECT DISCUSSION ACTION county office in the primary or general election, the winner shall be determined by the methods as determined by the Hawaii Revised Statutes Mr. Justus said ties are not broken by chance by the county clerk;there is a (11-157)". long system of how ties are broken. Ms. Barela asked that H.R.S. 11-157 be included in the next meeting packet for the Commission's information. Horace Stoessel explained his understanding of how Section 1.03 became a part of the charter in 1996. Any specifics regarding elections would be covered either by State Law or by ordinance and the Commission should take this into consideration before making any final decisions. Mr. Justus withdrew his motion. Chair Shiraishi said he would like to do more research on this matter considering what Mr. Stoessel said. Ms. Barela moved to defer CRC 2011-07 to the May 23, 2011 meeting and to include consideration of H.R.S. 11-157. Mr. Justus seconded the motion. Motion carried 6:0 Mr. Justus moved to accept Mr. Nakamura's letter of April 21, 2011 with thanks. Mr. Stack seconded the motion. Motion carried 6:0 CRC 2011-08 Discussion and possible decision-making on proposed language to amend Charter Article XXIX, Section 23.01, and Section 7.03 to clarify and update the existing Charter provisions related to the salaries of certain County Officers. (a) Proposed amendments revising Article XXIX, Section 23.01, and Section 7.03, Kauai County Charter, relating to the salaries of County Officers. Mr. Isobe informed the Commission that this proposal was not drafted for Charter Review Commission Open Session April 25, 2011 Page 9 SUBJECT DISCUSSION ACTION the purpose of introduction as a valid charter amendment because it covers multiple topics. This proposed amendment is trying to distill the changes that affect County salaries and the inconsistencies in those salaries. Because there are so many provisions that are affected, if one change gets approved but another provision in another section is not approved there would continue to be these inconsistencies. Additionally, it speaks to the difficulty of bringing all the inconsistencies into conformance when each ballot question needs to be related to a specific item. Mr. Justus asked Mr. Isobe what would be involved in drafting an entirely new charter. Mr. Isobe responded it would entail reviewing the charter from cover to cover and going word-by-word and literally rewriting the entire document. Ms. Barela asked if there was not some type of system that would check the charter to ensure continuity. Mr. Isobe said when you are referencing provisions within the charter you need to understand the charter in order to know where those relationships are throughout the charter. Mr. Justus asked if a line could be included in the charter that would act as a catchall that would adjust inconsistencies. Mr. Isobe said that would be part of the effort to have the County do non-substantive changes which would allow someone in the County to amend that particular section of the charter. Mr. Isobe further explained why the online codified version of the charter is unofficial; currently there is no way to legally codify the charter without the public voting and approving the codified version. This is why the "official'version of the charter, which has all of the amendments attached at the back and never folded into the main body of the charter, is the one kept by the county clerk. Ms. Suzawa and Chair Shiraishi noted that Councilmember Bynum had exited the meeting earlier without speaking with the Commission on any of the issues. Ms. Suzawa felt that changes to the charter would not be a priority at a Council meeting. She would like to hear what Councilmembers Charter Review Commission Open Session April 25, 2011 Page 10 SUBJECT DISCUSSION ACTION have to say and whether this is a responsibility they are willing to take on. Chair Shiraishi noted it would not be an imposition on the Council the way the proposed amendment was worded. Regarding a budget to hire an outside legal editor, Mr. Isobe said he still was not clear on exactly what the Commission was asking and would this be just for grammar or for researching outdated information. Attorney Winn explained that to hire special counsel only the County Attorney's Office with the approval of Council can do that; an editor is one thing but to ask for special counsel there is a specific process currently in the charter to cover this. Ms. Suzawa moved to defer CRC 2011-08 to the Phyllis Stoessel agreed with the removal of Section 29.05 as affects May 23, 2011 meeting. Mr. Guy seconded the Councilmembers salaries. motion. Horace Stoessel said he certainly agreed with the issue (on Councilmembers salaries). Since this is not a charter amendment proposal as such, Section 29.01 does not offer any improvement as a substitute for the current language. Mr. Stoessel said he does not know what H.R.S. Chapter 76 and the position classification plan specifically includes but thought the County was getting along fine with the definition of"officers"that is currently in the charter. In Section 29.03, the omission of the provision that says The respective appointing authority may set the salary of an appointee at a figure lower than the figure established by ordinance for the position overlooks the rationale for that provision. The rationale is that it was put in there as a management tool; under the current setup technically the Salary Commission sets the salaries for elected officials and sets "seedlings"for everybody else. The appointing authority for each of these non-elected people has the ability to adjust salary downward when they hire someone or when dealing with salary increases and this is one of the most important provisions in this article. People have tended to assume or to attribute more importance to the 60 day deadline than it deserves. Section 29.03 spells out the effective timeline for the Resolution and that it may be rejected in its Charter Review Commission Open Session April 25, 2011 Page 11 SUBJECT DISCUSSION ACTION entirety or any portion thereof. What the current proposal does not say is that the Council can enact the Salary Resolution at any time before that sixty day deadline and perhaps that needs to be added to Article XXIX which could clarify some of the related confusion that has occurred over the past 4 years. Motion carried 6:0 Announcements Next Meeting: Monday, May 23, 2011 Chair Shiraishi noted that the Commission will require some follow up from Staff and the County Attorney's Office for the next meeting. Adjournment Mr. Justus moved to adjourn the meeting at 5:41 pm. Mr. Stack seconded the motion. Motion carried 6:0 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Sherman Shiraishi, Chair O Approved as is. O Approved with amendments. See minutes of meeting.