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HomeMy WebLinkAbout2011_1024_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 11/28/11 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I October 24, 2011 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:02 pm I End of Meeting: 5:22 pm Present Chair Sherman Shiraishi; Vice-Chair Patrick Stack. Members: Mary Lou Barela, Joel Guy; Ed Justus; Carol Suzawa; Jan TenBruggencate (4:35 pm—5:22 pm) Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis, Administrator John Isobe; Administrative Aide Paula Morikami; First Deputy Prosecuting Attorney Jake Delaplane; Lonnie Sykos Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Shiraishi called the meeting to order at 4:02 p.m. with 6 Commissioners present. Approval of Open Session Minutes of September 26, 2011 Ms. Barela moved to approve the minutes as Minutes circulated. Ms. Suzawa seconded the motion. Motion carried 6:0 Business CRC 2011-01 Proposed amendment creating a new Section 24.04, Kaua'i County Charter, relating to non-substantive corrections and revisions (Deferred to 10/24/11 meeting) c. Discussion and possible decision-making on how the Commission can best achieve a 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. (ongoing) Lonnie Sykos: It would be inappropriate to put this charter amendment up for vote and then later do the amendment. The voters need to be presented with the legal language of the changes. Chair Shiraishi advised Mr. Sykos that the Commission had discussed at prior meetings whether to hire an independent contractor to make the Charter Review Commission Open Session October 24, 2011 Page 2 SUBJECT DISCUSSION ACTION recommended changes rather than refer the work to the County Attorney's Office or the County Clerk's Office. Ms. Barela moved to defer this item to February to accommodate the change with appointing a new County Clerk. Mr. Justus seconded the motion. Motion carried 6:0 CRC 2011-07 Proposed amendment revising Section 1.03, Kaua'i County Charter, relating to the election of Countv Officers (Deferred to 10/24/11 meeting) d. Confidential opinion dated 10/10/11 from Deputy County Attorney Jennifer Winn offering legal guidance as to the legality and compliance of a proposed charter amendment to Kaua'i Countv Charter §1.03. Mr. Justus moved to release the confidential County Attorney's opinion to the public. Ms. Barela seconded the motion. Motion carried 6:0 Mr. Justus moved to include Section 1.03 on the General Election ballot. Ms. Suzawa seconded the motion. Motion carried 6:0 CRC 2011-09 Proposed amendment revising Article XV of the Kaua'i Countv Charter, relating to establishing a Department of Human Resources (Deferred to 10/24/11 meeting) e. Communication dated 10/6/11 from the Kaua'i County Council to the Charter Review Commission responding to the request for comments regarding a proposed Charter Amendment relating to the establishing a Department of Human Resources. Chair Shiraishi noted that the County Council had responded to the Commission's request for comments on establishing a Department of Human Resources but indicated they would like to refer this issue to a sub- Charter Review Commission Open Session October 24, 2011 Page 3 SUBJECT DISCUSSION ACTION committee of the Council which would meet in November. Chair Shiraishi suggested deferring this matter until the Council submits their recommendations to the Commission. Mr. Justus moved to defer the issue to the November meeting. Ms. Barela seconded the Lonnie Sykos: It is not possible for this County to operate legally unless motion. the Human Resources, Loss Prevention and the public Auditor are enabled to function independent of any political influence. The process for making the change to an HR Department has to become more transparent because a legal HR function cannot be created without an understanding of what it is supposed to accomplish. Simply putting an HR system in place does not resolve the civil rights issues. Chair Shiraishi explained to Mr. Sykos that those issues had been brought up at prior meetings. Chair Shiraishi invited Mr. Sykos to review the proposed amendment and offer his suggestions to the Commission. Ms. Suzawa questioned the statement included in the communication from the Committee of the Whole that indicated that the Charter Review Commission had created a subcommittee which included the Risk Management Administrator. Mr. Isobe noted that was an incorrect statement. Mr. Justus asked what department or area in the County was the Human Resources subcommittee attached to. Chair Shiraishi said those questions should not be directed to this Commission but rather to Council because he was not aware where the Council got their information. Mr. Isobe said part of the Cost Control Commission's recommendation Charter Review Commission Open Session October 24, 2011 Page 4 SUBJECT DISCUSSION ACTION was for the Administration to also create a subcommittee to look at the various personnel functions currently being conducted by the individual departments, with the intent of seeing whether or not some of those functions could be consolidated under a Human Resources Department. He thought the Council's committee report was referencing that subcommittee who would ultimately make a recommendation to the Mayor on what functions are performed in each of the independent departments and what positions could be consolidated into a single Human Resources function. Motion carried 6:0 CRC 2011-11 Discussion and possible decision-making on Article XXIII, General Provisions, Section 23.02 H, as it relates to term limits for boards and commissions members. (Deferred to 10/24/11 meeting) Chair Shiraishi proposed language to clarify the question of whether an individual would be eligible to serve on two different boards or commissions at the same time and the language he drafted made it a prohibition, in addition to other suggested changes to section 23.02 H. Mr. Justus moved to accept the proposed changes and submit them to the County Attorney's Office for legal review. Ms. Barela seconded the motion. Mr. Isobe suggested clarifying the statement"that no person shall be eligible to serve two different boards or commissions at the same time" by inserting"to serve on two different County boards or commissions"to differentiate from serving on a State and a County board simultaneously. Chair Shiraishi explained that was why he inserted the word "County" on the first line with the intent that it carry over to all subsequent mentions. If the wording was ambiguous, Chair Shiraishi said they could insert "County"before different and boards. Ms. Barela agreed they should insert the word "County". Another suggestion was to add the word "Kaua'i" prior to "County"; Charter Review Commission Open Session October 24, 2011 Page 5 SUBJECT DISCUSSION ACTION Deputy Attorney Winn explained that currently in the charter (§1.01), "County" is defined as County of Kaua'i. Lonnie Sykos: Would there be a conflict of interest if an elected State official sat on a County board or commission? Appointed officials, hired officials and employees have vested interests that are different from those of the general public. The Commission should reconsider whether sitting on a State board or commission creates an inherent conflict of interest. Motion carried 6:0 CRC 2011-13 Review and prioritize proposed amendments for consideration of placement on the 2012 ballot(ongoing review) Mr. Justus moved to defer this review to the January meeting. Mr. TenBruggencate entered the meeting at 4:35 p.m. with apologies to the Commission. Ms. Barela seconded the motion. Motion carried 7:0 CRC 2011-14 E-mail dated 10/09/11 from Ed Justus requesting a review of Article XIX, Section 19.20, Disposition of Surplus Property Chair Shiraishi described surplus property as being of no value to the County and the Charter currently provided for advertising auctions in a daily newspaper of general circulation or the County's website. Mr. Justus had suggested that instead of giving the choice of"or" it be changed to include both by changing the word to "and". For background, Chair Shiraishi explained that this same issue had been discussed a few years ago. The Commission decided at that time that the County should not have to spend unnecessary funds to do a newspaper publication for items that might be so insignificant; it should be optional for the Department of Finance to determine how they publicize the disposal of items. Mr. Stack asked what the State's procedures were, noting that the Count Charter Review Commission Open Session October 24, 2011 Page 6 SUBJECT DISCUSSION ACTION should not have more stringent requirements than what the State entertains. Chair Shiraishi pointed out that §19.20 does provide for the Director of Finance to dispose of unusable property with or without advertising. Mr. TenBruggencate thought that other parts of this provision might need to be changed because it promoted a newspaper of general circulation at a time when there was only one. There are several other types of publications that are not provided for in this provision because they are weekly publications but they might have a wider readership because they are delivered to all homes. Mr. TenBruggencate also suggested they ask the Finance Department if there was other language that would make their job more efficient and more appropriate for the support of these ends. Chair Shiraishi said input was provided by the Finance Department(prior to being placed on the 2010 ballot). Mr. Justus felt that whether it was of high value or little value, if the auction was going to be advertised it should be in a way for the public to have the greatest ability to access the knowledge that there would be an auction. Mr. Justus moved to remove "or" and replace it with "and on" in §19.20. Motion failed for lack Lonnie Sykos: The Commission needs to review the entire Section 19.20 of a second. because it is a basic civil rights issue involving who owns public property. The language needs to be tightened up in this section to get the greatest economical benefit out of what is disposed. CRC 2011-15 Letter dated 10/12/11 from Shavlene Iseri-Carvalho. Prosecuting Attorney, proposing Charter Amendments to Article INA, Section 9A.03 Prosecuting Attorney Chair Shiraishi agreed with Ms. Barela that this item should be deferred to Charter Review Commission Open Session October 24, 2011 Page 7 SUBJECT DISCUSSION ACTION seek input from the Administration because it changes some of the budget procedures. Mr. TenBruggencate suggested the Commission also seek input from the Police Department,the County Council, and the Administration because this would affect some of their activities. Jake Delaplane: There are two parts to this request. The first part deals with powers, duties and functions under section 9A. Strict interpretation of the Charter appears that the Office of the Prosecuting Attorney(OPA)could only draw up indictments, go to court and represent the State in court and prosecute crimes in court. It does not envision some of the things being done under the various grants in working with prevention groups. Similar to an amendment to the City and County of Honolulu charter, the language proposed by the Office of the Prosecuting Attorney is reflected in Subsection 2 (page 2 of the communication from OPA). These recommendations take something that is already being done and gives it clearer support in the Charter. The Office of the Prosecuting Attorney is typically the funnel for every law enforcement agency that works on the island including KPD, Department of Land and Natural Resources, the Parks Department and any agency that issues citations. They all go through OPA to get the cases into the criminal justice system. It is important for OPAto be involved in that process for prevention because the more crimes that can be prevented the better, as it would save public funding and reduce the caseloads. The Charter does not envision how to use grant monies nor does it envision prevention programs. Mr. TenBruggencate commended the Office and those involved for doing this but questioned whether it was needed; does it solve a problem that OPA has identified. Mr. TenBruggencate asked if OPA had been criticized or had run into difficulties in getting grants or running some of the programs because they did not have that kind of statutory authority. Charter Review Commission Open Session October 24, 2011 Page 8 SUBJECT DISCUSSION ACTION Mr. Delaplane said they had not been criticized for it from the grantors. Chair Shiraishi said the concern of Mr. TenBruggencate, as well as his, was did the current language prevent OPA from doing those additional projects because if they were doing it and no one was stopping them and it was within the general purview of the Prosecuting Attorney's Office, why include this? If the Commission should include this proposal,would this be justification for the Prosecuting Attorney's Office to ask for an increase in the budget. Mr. Delaplane said the purpose of this proposal was not budgetary other than in the sense to preserve the grant funding or problems that could be encountered in the future with expending the grant money. Because the City and County of Honolulu was sued for reportedly going above and beyond what the charter allowed, OPA wanted to make sure it was on firm footing as far as our Charter goes. Mr. Justus asked if OPA felt it would be able to access grants more easily rather than through prosecution. Mr. Delaplane said he did and felt it would give more leeway on the types of grants they would apply for. A lot of grants offered are focused on prevention which would entail incorporating prevention into the prosecution strategy but these changes would open the Office up to be more clearly eligible for more grant funding. Chair Shiraishi asked if any grant provider had asked for a copy of the Kaua'i Charter. Mr. Delaplane said no. Charter Review Commission Open Session October 24, 2011 Page 9 SUBJECT DISCUSSION ACTION Chair Shiraishi asked if the current Charter language prevented OPA from applying for any and all grants their Office felt were appropriate. Mr. Delaplane said it definitely had not prevented them from applying. They were looking to stay ahead of the game by not opening the County up to any type of liability where there would be a question as to whatever grant the Office was taking fit within that prosecution standard in the Charter. Mr. Delaplane said the second part involved the budget process and in looking at the separation of powers in government and how the different budget processes work, with what was being proposed, made sense. What you have in the relationship between the Mayor's Office and the Office of the Prosecuting Attorney, right now under the Charter, seems to be a direct reporting relationship. The Prosecuting Attorney,who is an elected official, has to submit its budget directly to another elected official,not a plurality or a body of elected officials such as the Council. OPA is the only office in the County that has that peculiar problem; all other department heads are appointed. OPA has to submit its budget to the Mayor for approval in addition to testifying and providing justification on each of the line items in the budget before Council. Part of the problem is the budget has to be approved by another elected official in which, essentially,they could attempt to budget you out of effective operation. It is not typical in county government where one elected official reports directly to another elected official with budget items. What OPA is trying to eliminate is the requirement that our budget be submitted to the Mayor before it goes to the Council; it is counter-productive and turns the budget process into a 5 month process for our Office. Mr. Delaplane said the second part is the process that all items that need approval have to go through the Mayor's Office. With an extradition process, travel requests have to be submitted to the Mayor's Office for signature Charter Review Commission Open Session October 24, 2011 Page 10 SUBJECT DISCUSSION ACTION before the arrangements can be made for the flight. This is just an extra step to the process which can create afatal delay depending on the policies of the state from which the extradition is being done. Mr. Stack asked if any Mayor had ever denied OPA's budgetary requests. Mr. Delaplane responded yes. It was decided that some of the line items were not needed in OPA's first budgetary submittal to the Mayor and it was denied last year. The process is duplicative; OPA makes a justification to the Mayor and the Mayor does whatever the Mayor is going to do. The Mayor has the duty to go through the budget as a whole and submit a budget he thinks is fair to the Council. The Prosecuting Attorney is an elected official accountable to the people and the appropriate body to submit ajustification directly to would be the County Council rather than the Mayor's Office. Mr. Stack stated that the County Council and the Mayor were both elected. Mr. Delaplane said the County Council is a body of elected officials rather than one elected official. The budget process has the potential to pit two elected officials, one-on-one, against each other whereas the Council is a body of elected officials and not any one Councilperson is solely against the Office of the Prosecuting Attorney. Mr. Stack asked if OPA could provide a historical perspective of their budgetary requests and needs to the Commission. Mr. Delaplane said that would not be a problem. This request is not about doubling up the budget. It is about clarification of the powers and duties and clearing up the situation where one elected official is pitted directly against the other by way of the Charter. Charter Review Commission Open Session October 24, 2011 Page 11 SUBJECT DISCUSSION ACTION Ms. Suzawa asked if there was history where the Council had restored any budget cuts. Mr. Delaplane said yes but to be more specific he would need to speak with Ms. Iseri-Carvalho. Overall, it's that the process takes 5 months. Mr. TenBruggencate said the Council and the Administrative budgetary processes operate on different calendars. Mr. TenBruggencate said they had to have a discussion regarding one of the key issues; is this the kind of decision they want this government to undertake and does the Prosecuting Attorney stand at some level as equal to the Mayor or is the Prosecuting Attorney a department head within an Administration that is headed by the Mayor. Mr. TenBruggencate said he wanted to hear the thoughts on this from both the Administration and the Council. It would make sense to make a change from a budgetary standpoint and would like to know if the Commission had the power to convey that power onto someone other than a Chief Executive. Mr. Delaplane said he would submit a communication regarding the budgetary process so it could be placed on the Commission's agenda. Chair Shiraishi asked the Commission to break the Prosecuting Attorney's request into two parts: one that expands the Prosecutor's authority and the second to address the budgetary concerns. Chair Shiraishi asked the Commission to defer both matters pending comments and recommendations from the Mayor, the Council, the Police Department and any other affected agency. Mr. Justus moved to bifurcate both issues contained in CRC 2011-15 and defer the item pending receipt of comments. Ms. Barela Lonnie S kos: The Commission should hire an independent civil rights seconded the motion. Charter Review Commission Open Session October 24, 2011 Page 12 SUBJECT DISCUSSION ACTION counsel who understands civil rights because these are the issues they are dealing with. The County Attorney has not demonstrated knowledge of current civil rights practices in that they have allowed the County, through omission or commission, to reach the point where we have another County department in which the current language in the Charter reflects a world that no longer exists. If the Mayor can control the Prosecutor's Office through finances, it violates all of our civil rights. Prosecutors are independent of political control. Do we need to redefine the Prosecutor's Office to reflect its modern function? Mr. Sykos offered support of the bifurcated issues. Motion carried 7:0 Announcements Next Meeting: Monday,November 28, 2011, 4:00 p.m.,Mo'ikeha Building, Meeting Room 2A/B Adjournment Mr. Justus moved to adjourn the meeting at 5:22 p.m. Ms. Barela seconded the motion. Motion carried 7:0 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.