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HomeMy WebLinkAbout2011_0725_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved 8/22/11 as circulated Board/Committee: CHARTER REVIEW COMMISSION Meeting Date July 25, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:00 pm End of Meeting: 5:28 pm Present Chair Sherman Shiraishi; Members: Joel Guy; Ed Justus; Jan TenBruggencate (4:09 p.m.); Mary Lou Barela Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis, Administrator John Isobe, Administrative Aide Paula Morikami; Cost Control Commission Chair Sandi Sterker Excused Vice-Chair Patrick Stack; Member Carol Suzawa Absent SUBJECT DISCUSSION ACTION Call To Order Chair Shiraishi called the meeting to order at 4:00 pm with 4 Commissioners present Approval of Open Session Minutes of May 23, 2011 Ms. Barela moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 4:0 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 5/23/11 meeting) 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 the Charter and whether to consider budgeting for an outside editor. d. Communication dated 5/25/11 from the Charter Review Commission to the County Attorney and the County Clerk requesting their input and comments regarding their department's manpower capacity and capability to perform the task of correcting non-substantive items to the Kaua'i Count Charter Review Commission Open Session July 25, 2011 Page 2 SUBJECT DISCUSSION ACTION Charter. Ms. Barela moved to defer this matter to the August 22, 2011 meeting pending receipt of comments from the County Attorney and the County Clerk. Mr. Justus seconded the motion. Motion carried 4:0 CRC 2011-06 Discussion and possible decision-making on proposed Ms. Barela asked that the minutes reflect her language to amend Charter Section 24.03, establishing a permanent Charter appreciation to Mr. Shiraishi and Mr. Isobe's for Review Commission. (Deferred from 5/23/11 meeting) their appearance before the County Council and answering their questions "very easily". 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. c. Communication dated 5/19/11 from Mayor Bernard Carvalho, Jr., responding that the establishment of a permanent Charter Review Commission appeared to be premature since the Commission was only at the midpoint of its existing ten year cycle. d. Communication dated 7/8/11 from Council Chair Jay Furfaro to Commission Chair Sherman Shiraishi via John Isobe, Administrator, Boards and Commissions, requesting Mr. Shiraishi to attend the 7/13/11 Committee of the Whole to discuss costs and benefits of a permanent Charter Commission. e. Communication dated 7/15/1lfrom Council Chair Jay Furfaro to Charter Review Commission Open Session July 25, 2011 Page 3 SUBJECT DISCUSSION ACTION Commission Chair Sherman Shiraishi responding that the proposal to establish a permanent Charter Commission should be deferred until 2014 or 2016. Chair Shiraishi explained that at the County Council meeting held on 7/13/11, the main thrust appeared that it may be premature to ask for a permanent Charter Review Commission when there are more than 5 years before the current Commission's term sunsets. The Council made additional suggestions which were contained in their letter. Mr. Justus moved to receive communication CRC 2011-06 e. with thanks. Ms. Barela seconded the motion. Motion carried 4:0 Chair Shiraishi said that since both the Administration and the County Council have suggested it may be premature to ask for a permanent Charter Review Commission, it might be appropriate to defer this matter. Mr. Justus moved to defer the issue of apermanent Charter Review Commission for 2 years(2013)or sooner should the Commission wish to revisit the matter. Mr. Guy seconded the motion. Motion carried 4:0 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 5/23/11 meeting) a. Proposed amendment revising Section 1.03, Kaua'i County Charter, relating to the election of County Officers. b. Communication dated 515111 from the Charter Review Commission to the County Attorney's Office requesting recommendations for a proposed amendment to Kaua'i County Charter §1.03 regarding the legality and compliance with statutes and superior laws as provided for in Rule 4(b) of the Rules of the Kauai County Charter Review and to make Charter Review Commission Open Session July 25, 2011 Page 4 SUBJECT DISCUSSION ACTION recommendations of language revisions that would provide even greater clarity. c. Confidential opinion dated 6/9/11 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 §1.03. Mr. TenBruggencate entered the meeting at 4:09 p.m. Mr. Justus said he would like to make sure the language provided for in Section D for"Tie Votes" states "that the winner shall be determined by a method as determined in the Hawai'i Revised Statutes, Section 11-157". Mr. Justus moved to waive the Commission's Attorney-Client privilege on the confidential opinion dated 6/9/11, §1.03, and make it available for the public. Mr. Guy seconded the motion. Asked if the County Attorney's Office had an opinion on releasing the confidential opinion, Deputy Attorney Winn stated that the decision is that of the client, (the Commission), but she saw nothing within the opinion that would cause her concern. Motion carried 5:0 Mr. Justus moved that Section D be changed to reflect that the winner shall be determined in accordance with Section 11-157 of the Hawai'i Mr. Justus highlighted the guidelines from Section 11-157 for determining a Revised Statues. tie vote. Mr. TenBruggencate said he had not thought about this enough to have a strong opinion one way or the other but it might be cleaner to actually put the language into the Charter rather than to make a reference to a State law which could change in the future and could become problematic. Mr. Justus agreed with Mr. TenBruggencate and suggested the amendment be "in accordance with State law"rather than citing a specific statute. Mr. TenBruggencate was not sure that resolved the issue because if the current State law is what the Commission wants the Charter to reflect and the State Charter Review Commission Open Session July 25, 2011 Page 5 SUBJECT DISCUSSION ACTION law later changes,the Commission has then given away that authority. It might be more appropriate to have the language in the Charter setting out the procedures and approved by the voters rather than deferring to the Legislature. Chair Shiraishi suggested deferring this issue to the August meeting and include a copy of H.R.S. §11-157 in the meeting packet for discussion. Mr. Justus withdrew his motion. Mr. TenBruggencate moved to defer this item to the August meeting to allow further discussion of H.R.S. §11-157. Ms. Barela seconded the motion. Motion carried 5:0 Mr. Guy asked to revisit CRC 2011-06 e., the communication from the County Council citing the suggestion from Councilmembers Kuali`i and Yukimura that the Commission review the procedures for initiating Charter amendments, given that it takes less voter signatures to place a charter amendment on the ballot than to initiate an initiative or referendum. Chair Shiraishi said he told the County Council that the Commission had discussed that at a meeting but the public was against it. Mr. Guy said the comment did not seem to be related to other issues in the letter and wondered where that came from. (Taken out of CRC 2011-09 Communication dated 7/13/11 from the Cost Control Order) Commission to the Charter Review Commission requesting consideration of placing a proposed Charter Amendment to Article XV Establishing a Department of Human Resources on the 2012 General Election Ballot. a. Proposed amendment revising Article XV of the Kauai County Charter, relating to establishing a Department of Human Services. Charter Review Commission Open Session July 25, 2011 Page 6 SUBJECT DISCUSSION ACTION b. Communication dated 6/23/11 from the Civil Service Commission to the Cost Control Commission supporting the transition to a Human Resources Department. c. Confidentiality waived on the communication dated 6/28/11 from the County Attorney's Office to the Cost Control Commission providing legal review and comment on the proposed Charter Amendment to Article XV. Ms. Sandi Sterker, Chair of the Cost Control Commission, explained the Commission had studied how many departments had their own personnel who worked on human services functions. In that study,the Commission found that employees wanted issues such as workplace violence to be addressed and that things were not being done in the same way within the different departments, nor were they being done by the Personnel Department because it was not a Human Resources Department. The Commission then proposed a ballot question: Shall the title of Department of Personnel Services be changed to the Department of Human Resources and its existing scope of responsibilities broadened to include a more comprehensive Human Resources function? The Commission then took that proposal to the Civil Service Commission who responded that they agreed. Ms. Sterker said they also waived the confidentiality on the response providing legal sufficiency from the County Attorney and then referred the proposed amendment to the Charter Review Commission. One of the big things the Cost Control Commission wants to prevent is sexual harassment, which is happening more and more everywhere, and "we feel we would not have that problem if there was a Human Resources Department". Mr. Justus thanked the Cost Control Commission for presenting the amendment and for waiving the confidentiality to the County Attorney's Charter Review Commission Open Session July 25, 2011 Page 7 SUBJECT DISCUSSION ACTION opinion which will help with the Charter's review. Ms. Barela expressed her agreement. Mr. Justus pointed out a grammatical correction in Section 15.01 and thought it would be better clarified by adding a comma following the word prejudice and to add the words operating with just prior to "generally accepted methods governing ......" Deputy Winn did not think it would Mr. Justus moved to add a comma after legally affect the provision one way or the other. prejudice and before and. Mr. TenBruggencate seconded the motion. Motion carried 5:0 Mr. TenBruggencate said he gathered that the intent was that the various personnel offices scattered throughout all of the departments would end up working in one agency where they were trained appropriately and personnel functions were centralized and asked if that was the goal. Ms. Sterker said that was pretty much the goal. There are some departments where 10% of the work is personnel work and 90% of the job is doing something else. This change would allow for 100% of the workload to be what the employee is supposed to do. Mr. TenBruggencate said his concern was the way the proposed amendment was written. While this is the appropriate thing to do, he did not think the language in the proposal accomplished that and could not see where the transfers between the departments were accounted for. Mr. Isobe explained that the amendment does not speak to the implementation of how the County would transition from its current Personnel Department to a Human Resources function. Part of the Cost Control Commission's recommendation to the Mayor was that the Mayor begin an internal review of all of the various departments' personnel functions and report the internal findings back to the Cost Control Charter Review Commission Open Session July 25, 2011 Page 8 SUBJECT DISCUSSION ACTION Commission. That review would entail a committee looking at the various functions performed within each department and recommend which personnel should or should not transfer, as well as whether there is a need for additional personnel. Mr. Isobe could not say how long the review would take but it had been started and it was anticipated that it should be done prior to this amendment going before the electorate. Mr. TenBruggencate asked if the Commission should wait to see if the Administration suggests additional language to the amendment before moving further on it. He further wondered if this amendment did everything they wanted it to do because what Ms. Sterker described is not in the amendment. Ms. Barela asked if it would hold back the County from completing their process if the Commission did not vote on this amendment now. Mr. Isobe said the thought was to have both the review and the placement of the amendment on the ballot happen simultaneously. Mr. Isobe further explained that all of the amendments that have already been approved to go on the ballot will be brought back to the Commission one more time in the form of Resolutions for a last review and possible tweaking of the ballot question or elements that should be covered as part of the public's education process. Ms. Barela asked if it was appropriate to have a deadline for the completion of the review. Mr. Isobe said the intention at this point is to move forward with the review in anticipation the amendment will pass; the initial indication for the review to be completed is sometime the first quarter of next year. Ms. Sterker said the proposed amendment approximates what is in place in Charter Review Commission Open Session July 25, 2011 Page 9 SUBJECT DISCUSSION ACTION other counties. The increase in workforce violence and sexual harassment has to be addressed and through a means other than a Personnel Department who hires and fires. Attorney Winn said that her original opinion to the Cost Control Commission did have the other counties' provisions attached to it whereas the one before the Charter Review Commission did not. Mr. Justus pointed out that basically the Department of Personnel Services, as written in the Charter, was not very different from the proposed amendment. It also seemed like a lot of the departments noted in the Charter did not have an explanation of how they were constructed as far as their internal operations. Mr. TenBruggencate felt the one measure that seemed to do what was intended was 15.05 C, which talks about administration of employment policies and trainings related to employee benefits, conduct, development, and safety and injury prevention, in which the key word seemed to be "conduct". He further questioned whether or not the Administration would move bodies out of the individual departments and into this new department, lacking the language that says this department conducts these activities county-wide. The way it was written seems to leave a possible situation that nothing would change even with this amendment in place and he questioned whether the language accomplished that goal. Mr. Justus thought there was already a way under the Civil Service and Exemptions, §15.05, which says "all positions in the county, except those exempted by law". You could insert that into the proposed amendment to read: "The director of human resources shall be responsible for the execution of the human resources management programs in all positions in the cognty, except for those exem ted b law which shall include:". Charter Review Commission Open Session July 25, 2011 Page 10 SUBJECT DISCUSSION ACTION Mr. TenBruggencate pointed out that the County Attorney's Office had vetted the language and would this accomplish the Cost Control Commission's issues the way it was written now. It possibly would change the Personnel Director's title and nothing else would change if the Administration chose not to. To make sure it happens, it should be in the rules and, were the right questions asked of the County Attorney's Office? Deputy Attorney Winn explained this proposed amendment was a charter provision versus an ordinance. Charter provisions tend to be more of an overview of the law for the County. The ordinances and rules are more specific. Mr. TenBruggencate said he did not see anything within the confines of the document that said this applied to all personnel areas in the County and questioned whether that should not be specified. Mr. Justus said maybe they should include his suggested language and submit that to the County Attorney's Office to see if that covers all the areas Mr. TenBruggencate was questioning. Ms. Sterker said the Cost Control Commission did not discuss the actual implementation of this change. Ms. Barela said they needed to emphasize consistency and that these changes are to be made throughout the County; that everyone receives the same training and that the training is done. Mr. Justus moved to include the words throughout the county, after the words "management program" in Section 15.05 and present it to the County Attorney's Office for their review and comment. Charter Review Commission Open Session July 25, 2011 Page 11 SUBJECT DISCUSSION ACTION Mr. TenBruggencate said if the Mayor's inquiry determines this was not a good idea he was not sure the Commission wanted to tell them what to do if there was good reason not to. Mr. TenBruggencate suggested adding Mr. Justus' language and deferring the proposed amendment until such time as there was a report from the Administration on their inquiry. Mr. Isobe said the intent was to ensure that the County begins to make the shift. The Cost Control Commission left the ultimate implementation to the people who actually operate the departments to figure out as opposed to telling the County how to do it. The over-arching guidance that the County would follow would be the Charter, but the Charter would not tell the County how to implement the program. Mr. Isobe asked the Charter Review Commission if it was their intent not to act on this before they understood how the County was going to implement the program. Ms. Sterker added that the reason the Cost Control Commission got involved with this amendment was because of lawsuits against the County and they felt if those lawsuits could be eliminated, it would save the County money. In order to eliminate those lawsuits, there needs to be more information given to employees. Ms. Barela also felt that if it was not specified in the Charter who was to say that change would be made. Mr. Isobe said the initial recommendations of the Cost Control Commission had gone to the Mayor and the Mayor had endorsed the expansion of the Personnel Department into a Human Resources function. As a result of those recommendations,the Mayor also recommended that the Cost Control Commission review this Charter amendment which came from the Office of the Mayor. The Cost Control Commission's recommendation to the Mayor was several-fold with the first being to look at expanding the Personnel function into a Human Resources function. Secondly, have the Personnel Department begin to undertake Charter Review Commission Open Session July 25, 2011 Page 12 SUBJECT DISCUSSION ACTION comprehensive County-wide training which the Mayor has said will happen irregardless of this amendment. He will direct the Personnel Department to begin those trainings and to also look at the consolidation of personnel and/or functions under this expanded umbrella of Human Resources. In addition, the Cost Control Commission sent this proposed amendment to the Civil Service Commission because they currently oversee the Personnel Department; they concurred that this is movement in the right direction. Mr. TenBruggencate was concerned that if they didn't make it clear in the language of the Charter that the goal was a unified Human Resources Department functioning within the County, the next Mayor could dismantle it and vulcanize the function in somewhat the way it is now. Mr. TenBruggencate felt it was the right vision and would be willing to wait a few more months until the Mayor finished the review to see whether they could put the Mayor's vision into the proposed language. Mr. Isobe asked Mr. TenBruggencate how he would amend the proposed amendment to reach what he just said. Even if the Committee said how they would implement the program, what language would be put in the Charter to achieve that? Mr. Justus withdrew his motion. Mr. TenBruggencate moved to defer this item. Ms. Barela seconded the motion. Motion carried 5:0 CRC 2022-10 Discussion on Article XXVIII, Cost Control Commission, Section 28.05, Reports, as it relates to the annual report and mandates contained therein. Chair Shiraishi said when he met with the County Council, one of their concerns was the 30 day deadline in which the Mayor had to submit any ordinances drafted by the Cost Control Commission to the County Council Charter Review Commission Open Session July 25, 2011 Page 13 SUBJECT DISCUSSION ACTION for immediate consideration. Mr. Justus moved to request comments from the Cost Control Commission,the Mayor and the County Council whether the 30 day requirement was reasonable. Ms. Barela 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. Justus said at the last meeting he had suggested adding a phrase at the bottom of Section 29.03. In reading that section over again, he realized there may need to be different wording about elected officials voluntarily accepting a salary lower than the maximum figure and would like to add at the end of the sentence "(comma) or forego taking a salary". There have been people who have sought elected office that have made the comment that they would not take a salary if they were elected. Mr. Justus moved to add the words at the end of Section 29.03 (comma) or forego accepting a salary. Ms. Barela seconded the motion. Mr. Guy suggested that was like a campaign slogan and wasn't really supportive of that idea Motion carried: 4:1 (nay-Guy) Mr. Justus moved to accept Article 29.03 as a proposed Charter amendment. Ms. Barela seconded the motion. Motion carried 5:0 Mr. Isobe asked if the Commission was adopting the proposed amendment without receiving the comments from the Salary Commission who are scheduled to meet the following day 7/26 or were they amending the Charter Review Commission Open Session July 25, 2011 Page 14 SUBJECT DISCUSSION ACTION proposal and waiting for the Salary Commission's comments. This particular amendment includes amending multiple sections of the Charter and it is still not clear how to break this question apart. Was the approval to amend Article 29.03 but not the proposed changes to Article 23.01 and Article 7.03? Mr. Justus thought he was moving the amendment to be accepted as a whole but now realizes the error and would like to amend his motion to Section 29.03 to wait for a response from the Salary Commission. Mr. Justus moved to defer this matter to the 8/22/11 meeting and refer the amended packet to the Salary Commission for comment. Ms. Barela seconded the motion. Motion carried 5:0 CRC 2011-11 Discussion and possible decision-making on Article XXIII, General Provisions, Section 23.02 H. as it relates to eliminating term limits for board and commission members. Chair Shiraishi explained that when he was before the County Council they suggested the Charter Commission discuss the possibility of having terms not be limited or increasing the terms. Mr. Justus expressed that he was not a fan of unlimited terms; it was always good to have term limits so you have fresh voices. The only area that might be worth discussing is: "..........no person shall be eligible for appointment to any county board or commission until one year has elapsed after such service." Mr. Justus did not see the necessity of this clause. Chair Shiraishi had told the County Council that the learning curve was really high for the Charter Commission and just when you know the Charter,you start rotating off. Mr. TenBruggencate asked if the County Council's focus was on the two terms Charter Review Commission Open Session July 25, 2011 Page 15 SUBJECT DISCUSSION ACTION or the one year off. Chair Shiraishi said the County Council had mentioned 5 year terms. Currently there is no proposal to make any changes; this item is presented for discussion only, at this point. Mr. Justus moved to remove the second full sentence from Section H. with regard to the one year elapsed time before being eligible to serve another term on a board or commission. Ms. Mr. Justus explained that because board and commission members are Barela seconded the motion. volunteers,no one should be barred from volunteering their services especially since they are appointed by the Mayor and confirmed by the County Council. That phrase may keep people out that are doing a bad job or keep people from being too involved but since these are volunteer positions,what is the danger in having people who are willing to be involved? Preventing them from being involved for an entire year seems excessive. Mr. TenBruggencate said it would provide diversity and would keep people from overusing the resources. It was pointed out that any individual could refuse reappointment. Motion and second were withdrawn. Mr. TenBruggencate moved to defer this item to the next meeting and include Mr. Justus' suggested deletion for further discussion. Motion was seconded. Motion carried 5:0 Mr. TenBruggencate asked the Chair to place a discussion to review the provisions in the Code of Ethics on the August agenda. Adjournment Mr. Justus moved to adjourn the meeting at 5:28 p.m. Ms. Barela seconded the motion. Motion carried 5:0 Submitted by: Reviewed and Approved by: Charter Review Commission Open Session July 25, 2011 Page 16 Barbara Davis, Support Clerk Sherman Shiraishi, Chair O Approved as is. O Approved with amendments. See minutes of meeting.