Loading...
HomeMy WebLinkAbout2011_0822_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 9/26/11 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date August 22, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 I Start of Meeting: 4:00 p.m. I End of Meeting: 5:15 p.m. Present Chair Sherman Shiraishi; Vice-Chair Patrick Stack. Members: Ed Justus; Carol Suzawa, Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis, Administrator John Isobe Excused Member: Mary Lou Barela; Joel Guy Absent nnr� 00001-- SUBJECT DISCUSSION ACTION Call To Order Chair Shiraishi called the meeting to order at 4:00 p.m. with 5 Commissioners present. Approval of Open Session Minutes of July 25, 2011 Ms. Suzawa moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 5:0 Business CRC 2011-01 Proposed amendment creating a new Section 24.04, Kauai County Charter, relating to non-substantive corrections and revisions. 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 County Charter. Mr. TenBruggencate noted there was no urgency on this item and suggested a follow up phone call to see if either agency planned to respond and, if not, the Commission should proceed with assigning the responsibility. Mr. Justus said he previously suggested that rather than making it the responsibility of one office, the County Clerk would be responsible for making the changes with approval by the County Attorney so that both branches of government would be responsible for making the corrections. Charter Review Commission Open Session August 22, 2011 Page 2 SUBJECT DISCUSSION ACTION Mr. Justus said he would still like a response from the County Clerk and the County Attorney indicating whether their office would be interested in having that authority. If they did not respond, the proposed amendment should provide for equal responsibility. Chair Shiraishi asked Deputy County Attorney Winn to follow up with the County Attorney and Staff to follow up with the County Clerk on the status of their responses. Chair Shiraishi called for a motion to defer this item to the September meeting pending response from the offices of the County Attorney and the County Clerk. Mr. Justus moved to defer. Mr. Stack seconded the motion. Motion carried 5:0 CRC 2011-07 Proposed amendment revising Section 1.03, Kauai County Charter, relating to the election of County Officers. b. Review and consideration of Hawai'i Revised Statute §11-157In case of tie. Chair Shiraishi said previously Mr. Justus had proposed that in the event of a tie vote ....... "the winner shall be determined by applicable State law". Mr. TenBruggencate had objected to such broad language that would tie the County into any changes made in the State law. Chair Shiraishi said he had reviewed the tie breaking statute as well as HRS §11-3 which stated all State elections, including County elections, shall be bound by that section. Deputy Attorney Winn did not agree with that interpretation. In the case of County elections, Kaua'i Charter would preempt State law on how ties are determined. If there was a conflict between the County Charter and State law,the Charter would control; it would be a case of"home rule". It would be uniquely a County function and issue and would not be applicable to statewide provisions so the Kaua'i Charter would preempt. Charter Review Commission Open Session August 22, 2011 Page 3 SUBJECT DISCUSSION ACTION Mr. Justus said that was why Mr. TenBruggencate had suggested the actual language from H.R.S. §11-157 be inserted into the Charter to provide the ability to amend it and use it under home rule. Mr. TenBruggencate said while it might be a good idea to insert the actual language into the Charter, he was not sure he had enough of an objection to the current language to bring this forward on the ballot. Chair Shiraishi felt this Charter amendment was pretty understandable and he would not have a problem submitting this proposal to the public in its current language to break a tie by a method of chance. Mr. Justus felt the term "chance"was not clearly defined and it should have more gravity. A discussion of the various types of"chance" ensued. Chair Shiraishi felt the County Clerk would explain the various methods of chance available to the candidates with a tie vote and ask them what they wanted. Chair Shiraishi suggested the proposed amendment should be submitted as written. Ms. Suzawa suggested that the Staff start to list the various approval steps on each proposed amendment such as the date of the first approval by the Commission and the date of the legal review from the County Attorney. Ms. Suzawa moved to approve CRC 2011-07. Mr. Stack seconded the motion. Mr. TenBruggencate asked if there were a tie in the primary, would that force the County Clerk to go through the mechanics of breaking the tie even though there was no impact. Deputy Attorney Winn said the County Clerk would not be required to do anything unless candidates 14 and 15 were tied because it would most likely not affect other positions. In the case of the Mayor, if the top two get the Charter Review Commission Open Session August 22, 2011 Page 4 SUBJECT DISCUSSION ACTION same amount of votes, they would both move on to the general. Mr. TenBruggencate asked if they put this language in the Charter, could there be a situation that would give a losing candidate any kind of standing to challenge an election. If there were a tie within the ranks that would not impact the 15th position to move into 14th place, could this give any standing to say this election to be null and void? Deputy Attorney Winn did not think so. Mr. Justus said 14a' and 15ffi place would be in the first nonpartisan election and the Charter stated that"in the event of a tie for the last remaining at- large council office the candidates receiving the same number of votes shall be placed on the ballot for the second nonpartisan election" so numbers 14 and 15 would appear on the ballot. Ms. Suzawa pointed out that section (C 2 b) was being considered for deletion. Mr. Justus said instead of making it part of Section D in the new proposal, it should be different for both the primary and general election. The primary election would have the le and 15th place candidates so, if there were a tie, they go on to the neat round; in the general election the tie would be determined by the method of chance. Mr. Justus moved to defer this item and ask the County Attorney's Office to blend that language into the proposed amendment. Chair Shiraishi noted the new motion on the floor was to defer this matter and request the County Attorney's Office to provide language for the event of a tie in the primary for 14a'place to reflect there would be 15 candidates in the general. Ms. Suzawa withdrew the first motion on the floor. Mr. Stack withdrew the second. Mr. TenBruggencate seconded the motion to defer and refer to the County Attorney's Office. Charter Review Commission Open Session August 22, 2011 Page 5 SUBJECT DISCUSSION ACTION Motion carried 5:0. CRC 2011-08 Proposed amendments revising Article XXIX, Section 23.01, and Section 7.03, Kauai County Charter, relating to the salaries of County Officers. Mr. Justus stated that the proposed amendment did not reflect his last motion of"(comma) or forego accepting a salary" in Section 29.03. Chair Shiraishi noted that wording was sent to the Salary Commission for comment and they responded that they had no objection to the wording. Mr. TenBruggencate thought"to forego a salary"was equivalent to "a salary lower than the maximum" and therefore was unnecessary language. Mr. Justus said the Commission accepted the wording", to forego a salary" at the last meeting, pending comments from the Salary Commission. Mr. TenBruggencate pointed out the wording as suggested was grammatically wrong and suggested placing the wording in the middle of the sentence. Chair Shiraishi agreed and noted the statement should read: "Provided however, elected officers may voluntarily accept no salary or a salary lower than the maximum figure established by the salary commission for their position." Mr. Justus moved to approve the proposed change in wording. Mr. TenBruggencate seconded the c. Communication dated 7/27/11 from the Salary Commission to the motion. Motion carried 5:0 Charter Review Commission responding to the request for review and comments regarding proposed language changes to the Kaua'i County Charter, Article XXIX Salary Commission, Article XXIII General Charter Review Commission Open Session August 22, 2011 Page 6 SUBJECT DISCUSSION ACTION Provisions and Article VII Mayor. d. Communication dated 8/8/11 from the Salary Commission to the Charter Review Commission requesting comments on whether a charter amendment should be considered regarding the appointing authority that ultimately determines the salary for the County Auditor as noted in Item 7 of the communication dated 8/8/11 from Council Vice-Chair Yukimura. Chair Shiraishi said that the suggestions in Item 7 of Council Vice-Chair Yukimura's letter to the Salary Commission regarding the salary of the County Auditor were viable. Mr. Justus noted that her suggestion pointed out that the "disconnect"may have been intentional rising out of a need to protect the County Auditor from political pressure. The Auditor should be free and clear to audit whatever body of the County, especially those that are elected, without concern of how that affects their salary. Mr. Justus favored keeping the County Auditor's salary set by the Salary Commission. Chair Shiraishi asked for comments on Vice-Chair Yukimura's suggestion that performance reviews by the County Council be submitted to the Salary Commission. Mr. Isobe informed the Commission that the appointing authority was responsible for conducting performance reviews and the County Council was the appointing authority in the case of the Auditor. Mr. TenBruggencate pointed out that Vice-Chair Yukimura's letter was addressed to the Salary Commission and not to the Charter Review Commission. Vice-Chair Yukimura, as a member of the County Council, would have the authority to make recommended changes to the Charter. Charter Review Commission Open Session August 22, 2011 Page 7 SUBJECT DISCUSSION ACTION Chair Shiraishi said Council Vice-Chair Yukimura's communication had been referred by the Salary Commission to the Charter Commission and suggested the Commission respond that they did not wish to handle it. Mr. TenBruggencate said he was fine with the current situation under which the Salary Commission handles this. If Vice-Chair Yukimura felt that the County Council ought to have that power, the Council had the authority to proceed with it. This would be another unnecessary item for the ballot. Chair Shiraishi suggested receiving both communications for the record and respond to the Salary Commission noting that the Charter Commission took no action. Mr. Justus moved to receive the communications with no further action at this time. Mr. TenBruggencate seconded the motion. Motion carried 5:0 CRC 2011-09 Proposed amendment revising Article XV of the Kauai County Charter, relating to establishing a Department of Human Services. Mr. TenBruggencate said it was not clear to him that this "name change" accomplished the goal that was discussed. Chair Shiraishi recalled that Mr. TenBruggencate had a problem with the implementation of this change. Mr. TenBruggencate did not think this would address the problems and the change should not be pushed forward at this time. Chair Shiraishi felt it would not hurt to move this item forward and delineate the responsibilities but suggested they defer this item until there was a full Commission for further discussion. Charter Review Commission Open Session August 22, 2011 Page 8 SUBJECT DISCUSSION ACTION Mr. Isobe explained that this proposed amendment was advocated by the Civil Service Commission, the Cost Control Commission, the Mayor and the County Council. Mr. TenBruggencate's concern was that this amendment was proposed as a way to solve a problem and it did not solve that problem from his perspective. Mr. Isobe said from the perspective of the person who provided the testimony, all of those different entities had a different focus on the problem. The Cost Control Commission's focus was one of saving costs and the need for training and consolidation of like functions within the County. The Civil Service Commission looked at it from an overall Human Resources perspective in that the Personnel Department currently is not servicing a wide enough spectrum of the personnel needs of the County. The Mayor shares the focus of both Commissions. The County Council has, in the past, voiced their concern about not having a uniform Human Resources process within the County. The Charter Commission was focusing on one area of concern but there are multiple issues that this expanded department would be trying to resolve. Mr. TenBruggencate did not object to the change; he objected to making a change which was not supported by the reason for the change. Mr. TenBruggencate suggested setting up a workshop with all the people concerned to make sure the language that went into the governing document for the County of Kaua'i actually addressed the concerns it was intended to address. Mr. Isobe said, short of the County Council,this proposal came from the Mayor's Office, reviewed by the County Attorney's Office, reviewed and Charter Review Commission Open Session August 22, 2011 Page 9 SUBJECT DISCUSSION ACTION endorsed by the Civil Service Commission and the Cost Control Commission. The final step was to place it before the Charter Review Commission who, administratively, would be the only entity that could consider putting this item on the ballot. The only body that had not yet reviewed the proposed amendment was the County Council. Mr. Justus said if the Commission had to wait for the County Council's approval, the County Council might as well pass a Resolution. Mr. TenBruggencate moved to defer action on this item and to ask the County Council to provide their input on the proposed amendment. Mr. Justus seconded the motion. Mr. Stack expressed his concern with presenting too many items on the ballot for the voters to consider. Chair Shiraishi requested an agenda item in September to prioritize proposed ballot items. Motion carried 5:0 CRC 2011-10 Discussion on Article XXVIII, Cost Control Commission, Section 28.05, Reports, as it relates to the annual report and mandates contained therein. a. Memorandum dated 7/28/11 from the Charter Review Commission to the Mayor, the County Council and the Cost Control Commission requesting their comments on Article XXVIII, Section 28.05 Reports relating to the timeline to submit proposed ordinances from the Cost Control Commission to the County Council. b. Communication dated 8/9/11 from the Cost Control Commission to the Charter Commission responding to the request for comments relating to the timeline as determined in Section 28.05 of the Kauai County Charter. Chair Shiraishi noted that the Cost Control Commission was satisfied with Charter Review Commission Open Session August 22, 2011 Page 10 SUBJECT DISCUSSION ACTION the current language and recommended no changes be made. Mr. Isobe said the thirty day requirement did not seem to pose a problem for the Administration because in those instances that the Cost Control Commission recommended an Ordinance,the Commission also drafted the Ordinance for the Mayor's consideration. Chair Shiraishi's concern with the language was that the second sentence said "Thereafter, the commission may request......its recommendations.....be sent to the mayor" and the third sentence was "The mayor shall......". This might be one of the low priority amendments. Mr. TenBruggencate moved to receive the communication. Mr. Justus seconded the motion. Motion carried 5:0 CRC 2011-11 Discussion and possible decision-making on Article XXIII, General Provisions, as it relates to terms for board and commission members. a. Section 23.02 C. as it relates to 3 year terms for members of boards and commissions members. Chair Shiraishi said that when he was called to appear before the County Council to explain the thoughts behind making the Charter Commission a permanent commission, he explained the high learning curve involved with this Commission and the rotation off the Commission just as someone gets a grasp on the Charter. Part of that conversation evolved into possibly increasing term limits for certain boards and commissions and specifically the Charter Review Commission might benefit with an increase from three to five years. Vice-Chair Stack asked if there had ever been discussion about certain boards or commissions having elected positions versus appointed positions. No action required. Charter Review Commission Open Session August 22, 2011 Page 11 SUBJECT DISCUSSION ACTION b. Section 23.02 H. as it relates to term limits for boards and commissions members. Mr. Justus questioned the logic behind the need for a commissioner to sit out for one year following the completion of two consecutive terms. Mr. TenBruggencate felt the argument would be to provide diversity, to give other people the opportunity to serve and to avoid having a power elite that controlled a commission. Mr. Justus suggested changing it so that a person would not be eligible to be reappointed to the same board. Chair Shiraishi suggested the section be amended to read: After the expiration of two consecutive terms, no person shall be eligible for reappointment to the same county board or commission until one year has elapsed. Mr. Justus moved to approve the wording as amended. Mr. TenBruggencate seconded the motion. Motion carried 5:0 Staff to refer proposed amendment to the County Attorney's Office for review as to legality. CRC 2011-12 Discussion of Article XX, Code of Ethics,to identify sections and provisions for future agenda items to be discussed. Mr. TenBruggencate explained he was concerned that the issue of Ethics had been a topic of interest over the past couple of years. There have been discussions on whether persons serving on boards and commissions for no pay ought to be prevented from representing themselves or other private interests before other government agencies. A recent attempt to address this issue was turned down by the voters. As part of this Commission's duty,we should take Charter Review Commission Open Session August 22, 2011 Page 12 SUBJECT DISCUSSION ACTION a look at the whole issue of the County's Ethics Code and how other municipalities around the country deal with those issues. Chair Shiraishi cautioned the Commission about considering very broad agenda items rather than addressing specific problems. Mr. TenBruggencate said he had done some preliminary work which looked at the ethics provisions in other states, counties and cities and they were very different from ours. The code seemed to lack a statement of purpose that would encapsulate the approach to ensure a high standard of principled conduct in our government, which may be all that would be needed. Mr. Justus suggested a communication be sent to the Ethics Board requesting their input for any changes they would like to see. Mr. Justus moved to send a communication to the Ethics Board requesting their comments on potential changes to the Charter. Mr. TenBruggencate seconded the motion. Motion carried 5:0 Chair Shiraishi suggested the Ethics board members could be jointly appointed by the Mayor and the Council instead of the Mayor appointing all 7 members. Mr. Justus commented that if someone was voluntarily an officer of the County or served on a board or commission for which they were not getting paid, he wondered why they couldn't enter into contracts with the County. It was pointed out that Section 20.03 was amended in 2010. Mr. Justus felt there would be no harm in looking at that section again. Mr. Justus asked that the Chair Shiraishi requested agenda items for minutes be amended to reflect his suggestion that Section 20.03 A be revised September to include Section 20.03, Contracts to allow for adjustment of services or nronerty of a value in excess of $1,000 and Section 20.02 D, appearance in behalf of to allow for inflation. private interest before county agencies. Announcements Next Meeting: Monday, September 26, 2011, 4:00 p.m. Adjournment I Mr. Justus moved to adjourn the meeting at 5:15 Charter Review Commission Open Session August 22, 2011 Page 13 SUBJECT DISCUSSION ACTION p.m. Mr. Stack 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.