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HomeMy WebLinkAbout2011_0523_MinutesOpen_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 7/25/11 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I May 23, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:01 pm End of Meeting: 5:02 pm Present Chair Sherman Shiraishi Members: 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 Excused Member: Mary Lou Barela Absent Vice Chair Patrick Stack SUBJECT DISCUSSION ACTION Call To Order Chair Shiraishi called the meeting to order at 4:01 pra with 5 Commissioners present Approval of Mr. Justus moved to approve the agenda as Agenda circulated. Ms. Suzawa seconded the motion. Motion carried 5:0 Approval of Open Session Minutes of April 25, 2011 Ms. Suzawa moved to approve the minutes as Minutes circulated. Mr. TenBruggencate seconded the motion. Motion carried 5:0 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 4/25/11 meeting) 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, Kaua'i County Charter, relating to non-substantive corrections and revisions. c. Discussion and possible decision-making on how the Commission can best achieve review of the charter for recommendations to correct non- substantive items as they relate to grammar, spelling and formatting errors in Charter Review Commission Open Session May 23, 2011 Page 2 SUBJECT DISCUSSION ACTION the Charter and whether to consider budgeting for an outside editor. Staff reported that no input from the public had been received as a result of the press release. It was also pointed out that the word "non-substantive" may have caused confusion and concern in past elections and has now been taken out of the proposed ballot question for that reason. Mr. Guy said he did not feel qualified to work on grammar and would want the Attorney involved in this. Mr. Justus suggested rather than the County Attorney proposing an ordinance, give the County Clerk the ability to make non-substantive changes with the approval of the County Attorney's Office. Mr. TenBruggencate agreed it might make sense for changes to be the collaboration of the two offices since the County Attorney is an appointee of the Mayor and the County Clerk is an appointee of the Council. A recess was called at 4:12 p.m.; meeting was called back to order at 4:15 pm Mr. Justus further suggested they get the County Clerk's opinion on placing that responsibility with the County Clerk. Chair Shiraishi said he did not mind getting input from both the County Clerk and the County Attorney. Mr. TenBruggencate moved to defer this item to the June meeting and ask both the County Attorney and the County Clerk to submit their comments on their being the agencies to propose changes to the charter. Ms. Suzawa seconded the motion. Motion carried 5:0 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. a. Proposed amendment revision Section 22.03.C, Kaua'i County Charter, relating to submission requirements for initiative and referendum petitions. Charter Review Commission Open Session May 23, 2011 Page 3 SUBJECT DISCUSSION ACTION b. Communication dated 4/26/11 from the Charter Review Commission to the County Attorney's Office requesting recommendations for a proposed amendment to Kaua'i County Charter §22.03 regarding the legality and compliance with statutes and superior laws as provided for in Rule 4(b) of the Rules of the Kaua'i County Charter Review and to make recommendations of language revisions that would provide even greater clarity. c. Confidential opinion dated 5/2/11 from Deputy County Attorney Jennifer Winn offering legal guidance as to the legality and compliance of a proposed charter amendment to Kaua'i County Charter §22.03. Mr. Justus moved that the Commission release the County Attorney's confidential opinion and place it on public record. Motion died for lack of a Chair Shiraishi pointed out that Rule 4 of the Charter Commission provides second. the procedures by which the Commission submits any proposals for inclusion on the ballot. This proposed amendment has gone through the first two steps; step one being the proposal and step two the rendering of the opinion from the County Attorney's Office regarding legality. The third step is the Commission's duty to reconsider the proposal and make necessary changes and possibly approve it for inclusion on the ballot and further revisit it anytime prior to its inclusion on the ballot. Mr. TenBruggencate moved to approve the language as submitted. Mr. Justus seconded the motion. Motion carried 5:0 CRC 2011-05 Discussion and possible decision-making on proposed language to amend Charter Section 24.01.B, relating to the initiation of Charter amendments. a. Proposed amendment revising Section 24.01. B, Kaua'i County Charter, relating to the initiation of Charter amendments. Charter Review Commission Open Session May 23, 2011 Page 4 SUBJECT DISCUSSION ACTION b. Communication dated 4/26/11 from the Charter Review Commission to the County Attorney's Office requesting recommendations for a proposed amendment to Kaua'i County Charter §24.01 regarding the legality and compliance with statutes and superior laws as provided for in Rule 4(b) of the Rules of the Kaua'i County Charter Review and to make recommendations of language revisions that would provide even greater clarity. c. Confidential opinion dated 5/2/11 from Deputy County Attorney Jennifer Winn offering legal guidance as to the legality and compliance of a proposed charter amendment to Kaua'i County Charter §24.01. Chair Shiraishi stated that an opinion from the County Attorney had been received regarding the legality of this proposed amendment. Ms. Suzawa moved to approve the language as submitted. Mr. Justus seconded the motion. Motion carried 5:0 CRC 2011-06 Discussion and possible decision-making on proposed language to amend Charter Section 24.03, establishing a permanent Charter Review Commission (Deferred from 4/25/1 meeting) a. Proposed amendment revising Section 24.03, Kaua'i County Charter, relating to establishing a permanent Charter Review Commission. b. Communication dated 4/26/11 from the Charter Review Commission to Mayor Bernard Carvalho, Jr., and Chair Jay Furfaro and members of the County Council requesting their thoughts and comments including what the burden and cost would be to the County if the Charter Review Commission was made a permanent commission by amending Section 24.03, Kaua'i County Charter. Chair Shiraishi acknowledged receipt of the letter dated May 19, 2011, from Charter Review Commission Open Session May 23, 2011 Page 5 SUBJECT DISCUSSION ACTION the Mayor which was circulated to the Commission. Mr. TenBruggencate thought the Mayor did not have strong feelings one way or the other and because this is a sufficiently momentous decision, it should be discussed in the presence of the entire Commission. Mr. TenBruggencate moved to defer this item to the June 27 meeting. Ms. Suzawa seconded the motion. Mr. Isobe informed the Commission that the County Council would like this item to be deferred until after the Council's June 29 meeting to allow them time to review and provide additional comments relative to this matter. Mr. TenBruggencate amended his motion to defer this item to the July 25 meeting. Mr. Justus seconded the motion. Motion carried 5:0 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. (Deferred from 4/25/11 meeting) a. Proposed amendment revising Section 1.03, Kaua'i County Charter, relating to the election of County Officers. b. Review and consideration of Hawai'i Revised Statute §11-157In case of tie. Mr. Justus said he would like to see this proposed amendment include a change regarding the tie votes to reflect the Hawai'i Revised Statutes and questioned whether that would be a non-substantive change;the members felt the change would be considered substantive. Attorney Winn was not sure if the Charter would be pre-empted by State law because the County would have home rule pursuant to State law and this may be one of those provisions where Charter law would trump State law. Attorney Winn said she would prefer to have time to research this matter. Mr. TenBruggencate moved to refer this to the County Attorne 's Office for review and Charter Review Commission Open Session May 23, 2011 Page 6 SUBJECT DISCUSSION ACTION specifically to research the general language of the change and to make recommendations on the issue of resolving tie votes. Chair Shiraishi stated that even if the County has home rule just based on the Commission's discussion there appears to be some aversion to having a tie vote decided by a method of chance. Mr. Justus seconded the motion. Chair Shiraishi said even if they approve the proposed amendment as is and refer it to the County Attorney's Office there will still be future opportunities to discuss it. Chair Shiraishi asked if they wished to approve the proposed amendment as is and ask for a legal opinion. Mr. TenBruggencate amended his motion to approve the proposed amendment and refer to the County Attorney for legality and compliance with applicable laws with specific reference to subsection D as it relates to H.R.S. §11-157. Mr. Justus seconded the motion. Motion carried 5.0 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 (Deferred from 4/25/11 meeting) a. Proposed amendments revising Article XXIX, Section 23.01, and Section 7.03, Kauai County Charter, relating to the salaries of County Officers. Mr. TenBruggencate suggested they amend Mr. Justus' motion to include everyone whose salaries would be affected. Mr. Justus moved that the Commission request the opinion of the Salary Commission on the Chair Shiraishi said the last sentence of Section 29.03 currently reads that proposed changes before making any decisions. the respective appointing authority may set the salary of an appointee at a figure lower than the figure established by ordinance for the position and questioned why you would pay less than the recommendation. Mr. Isobe Charter Review Commission Open Session May 23, 2011 Page 7 SUBJECT DISCUSSION ACTION said the Salary Commission sets the upper ceiling and if someone were hired with less than ideal qualifications you would start them at a lower rate and move them up as they perform in the position. Chair Shiraishi pointed out that §29.01 states that the Salary Commission will establish the salaries of all councilmembers, all officers and employees; if you give the appointing authority the power to reduce the salary are you not going against the authority of the Salary Commission. Mr. Isobe said currently we are reading §29.01 and §29.02 together where the Salary Commission does set the upper limits of the salary; they then adopt the policies governing the salary setting decisions. Mr. Justus suggested they include the language "members to establish the salary limits of all such"with Chair Shiraishi adding "maximum salaries". Ms. Suzawa felt that if the County Attorney would review the proposal for legalities she might have a better understanding of the amendment and suggested this amendment be passed on for first reading. Mr. TenBruggencate did not think they should burden the County Attorney's Office at this point since they have not heard from the Salary Commission and some of the other organizations that might be impacted because there might be considerable changes. Mr. Justus moved to defer this item until an opinion is received from the Salary Commission Chair Shiraishi suggested massaging some of the language of the proposed amendment before further action is taken and suggested in Section 29.01 they insert the word maximum between the words "the" and "salaries" in the second sentence. The last sentence in Section 29.03 should remain as part of the Section by removing the brackets and the word maximum should be added to the last sentence between "the" and "figure". Mr. Isobe referred to the last sentence of Section 29.03 that was just reinstated by the Commission which allows the respective appointing authority to set the salaries. The problem that the county ran into in the previous cycle of salary increases with the elected officials, i.e.,the Mayor, members of the County Council and the Prosecuting Attorney, is the Mayor had wanted to take a salary reduction, or not take the raise, but it was determined that the appointing Charter Review Commission Open Session May 23, 2011 Page 8 SUBJECT DISCUSSION ACTION authority for elected officials is the voters and so it did not allow the elected officials to take a salary less than the maximum. The purpose of removing that Section was to allow the Salary Commission and or the elected officials the flexibility to take a lesser salary than that established by the Salary Commission which currently could not occur. The appointing authority is relevant in cases where it is not an elected official. Following up on why Section 29.05 Changes in Salary should be deleted, Mr. TenBruggencate said this is an artifact from the days when the Council set its own salaries. They could only change the salary for the next Council; they could not change their own and now the Council no longer sets its own salary. Mr. Justus wanted to include in Section 29.03 that elected officials may voluntarily take a lower salary. Mr. Justus moved to add the word maximum to Section 29.01, add the word maximum to the last sentence of Section 29.03 and remove the brackets from that same sentence and to add the sentence Elected officials may voluntarily take a lower salary to the last sentence of Section 29.03 and defer pending review and comments from the Salary Commission. Mr. TenBruggencate Mr. Isobe noted that the Salary Commission would probably not be meeting seconded the motion. Motion carried 5:0 prior to the Charter Commission's next meeting. Adjournment Mr. Guy moved to adjourn the meeting at 5:02 p.m. Mr. Justus seconded the motion. Motion carried 5:0 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.