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HomeMy WebLinkAboutP-0107.01-16 Council Minutes 01-2009- COUNCIL MEETING January 14, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, January 14, 2009 at 9:40 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair i, APPROVAL OF AGENDA: ' . Mr. Kaneshiro moved for approval of the agenda as circulated, seconded by Mr. Kaneshiro, and unanimously carried. MINUTES of the following meetings of the Council: Public Hearing of December 17, 2008 re: Bill No. 2292 and Bill No. 2294 Mr. Kawakami moved for approval of the minutes as circulated, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Can I have the first item? PETER A. NAKAMURA, COUNTY CLERK: The next matters are for receipt which are on page 1, communication C 2009-30 and communication C 2009-31. COMMUNICATIONS: C 2009-30 Communication (11/28/2008) from then Council Chair Jay Furfaro, transmitting for Council consideration, proposed amendments to address the issue of vacation rentals on agricultural lands: Mr. Kaneshiro moved to receive C 2009-30 for the record, seconded Mr. Bynum, and unanimously carried. C 2009-31 Communication (12/03/2008) from the Chief, Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for November 2008 that includes the following items: 1) Building Permit Processing Report 2) Building Permit Estimated Value of Plans Summary COUNCIL MEETI ~ - NG - 2 January 14, 2009 3) Building Permits Tracking Report 4) Building Permits Status: Mr. Kaneshiro moved to receive C 2009-31 for the record, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next matter please? Mr. Nakamura: The next matter for receipt is communication C 2009-32. C 2009-32 Communication (12/08/2008) from the Director of Finance, transmitting for Council information, the certified unreserved undesignated fund balance for the fiscal year ending June 30, 2008: Mr. Bynum moved to receive C 2009-32 for the record, seconded by Ms. Kawahara. Chair Asing: Any discussion? Yes Councilmember Furfaro? Mr. Furfaro: Yes, Mr. Chair, thank you. I do want to point out and it is for the benefit of many of the new members. In particular, the certified fund balances in Golf, as well as in the Sewer Trust Fund, it should be noted that we are going into the budget session, but there are shortfalls in what was identified as the reserve from the start of the year and later we will be seeing money transferred to replenish those accounts. But I do want to point out in this economic times, the fact of the matter is there is a reduction in rounds of golf, there is a reduction in the demand on sewer, wastewater, and so forth, therefore, that will affect future revenues. I just wanted to point that out. Thank you Mr. Chair. Chair Asing: Any further discussion? If not, hang on. Glenn? I'd like to suspend the rules. There being no objections, the rules were suspended. GLENN MICKENS: For the record, Glenn Mickens. Thanks Kaipo. Just for clarification, on this County of Kauai, the schedule of fund balances, it's got the Golf Enterprise Fund at $363,470. How does that track with what they are asking for? What? $233,000 that you are taking out of the General Fund putting into the Golf Fund? These figures, how do they... I don't know how it works. Mr. Furfaro: I can answer that. Chair Asing: Go ahead. Mr. Furfaro: Thank you. These funds are like reserves for a particular projects and what I was commenting on earlier, Glenn, was the fact that it is like a first in, first out inventory. 1 COUNCIL MEETING ~ - 3 - January 14, 2009 Mr. Mickens: Yea. Mr. Furfaro: When we started the budgeted year, there was a fund balance, and I want you to think of that in terms of being like a reserve. So, for example, on the Sewer Trust Fund that we have there, you might note that as a budget is projected, there are certain assumptions made when activities occur that the people developing those particular projects will contribute based on the number of units that they are building... will contribute this reserve. So that is actually the starting point for those funds, so in the case of golf, you don't have this information in front of you, but there was a $481,000 fund balance that we started with for particular projects. Mr. Mickens: A positive balance? Mr. Furfaro: Yes, but that was also reflecting on capital projects, money to be spent. Remember like we had the pumps and the wrong electric meter and so forth... Mr. Mickens: Yes. Mr. Furfaro: Okay, but that fund is also based on forecasted rounds of golf. And, yes, we do draw to replenish that and, yes, just like the Sewer Fund, it is an enterprise fund, but what I am trying to point out is as we have less play, as we have less demand for County sewer facilities, and so forth, I am just bringing to the attention to the group that the fund balances or these reserves could - dwindle because we don't have the same number of golf, we don't have the same demand for wastewater improvements, and so forth where they pay these contributions. But you are correct, it is, and we will look at it at the end of the year, we will look at it as an enterprise fund. Mr. Mickens: So we don't have $363,470 in the balance then? Mr. Furfaro: We do. Mr. Mickens: We do have that in the balance of... Mr. Furfaro: As of June 30, but what I am saying to you, and you don't have in front of you, we anticipated that to be $481,000. Mr. Mickens: Oh, instead of $363,000? Mr. Furfaro: Yes. Mr. Mickens: Oh, I see. COUNCIL MEETING - 4 - ~ January 14, 2009 Mr. Furfaro: And that was where we started the year, so this was the balance as of June 30, 2008. Mr. Mickens: Right. Mr. Furfaro: But if you look at... but if you go back and look at our budget with money that we transferred for capital appropriations and so forth, we had anticipated the old ending point to be the new starting point. We anticipated that would have been $481,000, for there is not contributions going into there because of the reduction in play, and so forth, and that is all that I am bringing to everyone's attention. Mr. Mickens: Well, this term Jay, this term enterprise fund, doesn't that mean that the money coming in is supposed to equal the money going out if, in fact, it is an enterprise fund. But since the money coming in doesn't equal the money going out in these things... whether it is Solid Waste that we are putting $8 million a year, they are not enterprise funds, isn't that right? Mr. Furfaro: Well, the definition of an enterprise fund according to Webster's is exactly what you said it was. Mr. Mickens: Right. Mr. Furfaro: They are supposed to be able to get to a zero balance because the revenues equal the expense cycle, but we all know, and that is not for this discussion today. What is on the agenda is the fund balance and all that I am trying to point out is, the fact of the matter is, there has been less revenue going in at the midway point, we should be aware of that coming up with the new budget, and that is all that I am trying to say. Mr. Mickens: Well as you are saying, I hope they will correct that terminology and say it is not an enterprise fund, okay. I understand what you are saying, thank you Jay. Chair Asing: Thank you. With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor to receive. The motion to receive C 2009-32 for the record was then put, and unanimously carried. Chair Asing: The next item please? COUNCIL MEETING • - 5 - ~ January 14, 2009 Mr. Nakamura: At this time Mr. Chair, we have on the bottom of page 2 of the Council's agenda communication C 2009-38. C 2009-38 Communication (12/23/2008) from Judith F. Lenthall, Executive Director, Kauai Food Bank, transmitting for Council information, amid-year status report concerning the $58,000 grant authorized by the County Council for the Kauai Food Bank's Food Stamp Outreach Program from the period July 1, 2008 through June 30, 2009: Chair Asing: Thank you. With that, I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Judy? JUDY LENTHALL, KAUAI FOOD BANK: Good morning, aloha. My name is Judy Lenthall and my mother is... oh... Mr. Bynum: Good morning. Ms. •Lenthall: I won't take much of your time. I know you have a very long agenda. I am here with George Costa who is the Director of the Office of Economic Development that is the department that is monitoring our grant. As you probably have all heard, food banks, not just us, they are across the country have had a decrease in food donations, an increase in demand, and of course, an increase in all our operating costs. We started the year in January serving... January 2008, our monthly report was about $3,800, and I just saw our December report, and it was over $7,000. So we have been slammed at the food bank and all of this is coming in the last quarter. What most food banks are doing is just buying more food... getting money from wherever they can to buy more food. Our County has a better idea and what they did was fund our food stamp outreach program. $58,000 was granted to the Kauai Food Bank by the Council to do food stamp outreach. The goal was to raise $100,000 in new food stamp money before the end of the year. We are six (6) months through our program now and we have raised over $110,000 so far. I think it is only going grow. We have the right staff in the right place and 22 akamai kupuna club members (the volunteers) that help us do our outreach. The economic impact of what we have done... we started this in 2007... the economic impact to the County of Kauai is a half a million dollars so far. That is, to me, an incredible number because the economic impact of buying food or just doing food banking business doesn't get that same bang for the buck. So the Council was really smart in putting it within the Office of Economic Development because this is clearly an economic development program. So what the Council directed when they gave us this grant was please get results and we have done that. COUNCIL MEETING - 6 - • Janu 14, 2009 The second thing they said was, and don't think you are going to come back year after year, and get more money to do this over and over and over again, and try and find more money someplace else. Don't keep coming back to us and what we have found is a 50% Federal reimbursable for all the moneys. So, you know, non- profits, they do it in layers, right? They will take our 50%, try get grants... we have written two (2) grants so far. We will report on the success of that. The 50% reimbursable is available by the Federal government. If the State had submitted the food stamp outreach plan in time, we would have received it from the moment we got the County moneys. That didn't happen. The State is now saying that we should be able to have a contract by March, so we will be able to get a 50% reimbursable on the last quarter of the County's money, and hopefully any money from thereon. So this was kind of a find, to find the 50% reimbursable. And the final thing that I wanted to comment on was the Office of Elderly Affairs and 13 agency's petitions were submitted to the Director of DHS requesting that the food stamp asset test be eliminated and to raise the income levels. Right now, the State of Hawaii rules to get food stamps are more restrictive than the Federal government requires and it is a Federal 100% funded dollar program. So, to me, that made no sense whatsoever. 15 States have already eliminated the asset test and as a result of all the petitions, the Director has agreed to do this; however, their administrative rules process can take up to two (2) years. Our kupunas are the ones that we are having to deny food to because they are the ultimate saver generation. They are going to die with the money in the bank. They don't touch them. It is like my own father, you know, go without because they've got $3,000 in the bank and that is all that it needs to make them ineligible. So we weren't willing to wait two (2) years. You know, some of our seniors could be dead by then, and they are going to die hungry, so I don't feel real good about that when we could be doing this differently. Senator Gary Hooser said that we could do it legislatively, more fast yea, and he is introducing a bill this month, January. I will be coming back to the Council seeking and I don't know what the words are... support resolution or something that says, yea, this is a really good idea because it can help feed an awful lot of people and particularly our seniors. So we will be doing a lot of advocacy work with other food banks and other non-profit organizations getting support from the grocers because they directly benefit from the food stamp dollars. Right now, the State of Hawaii is missing about $70 million each year leaving the money on the table in Washington D.C. for food because of our participation rate for food stamps. That makes no sense when food banks are scrambling to try and do a response to the incidents of hunger in our community. So we are pushing that envelope, we are increasing the participation rate, we are looking at $3 million that is lost each year in the County of Kauai from our participation rate, and with these new changes to increase the income limit from 130% of poverty to 185% of poverty. That is a pretty big increase here. We will be able to serve that many more people and serve them more effectively. So I wanted to thank you for your grant and let you know all the wonderful things that have happened. We are just half way through the year and it has been, I think, amazing. Even the Federal government COUNCIL MEETING • - 7 - • January 14, 2009 for their economic stimulus package is looking at food stamps because when they have studied where you get more bang for your buck, I would have said infrastructure, I would have guessed. They have studied infrastructure, unemployment benefits... they studied about 12 different items and the most bang for your buck came from food stamps because for every $5 of new food stamp money, there is an economic benefit to the County of $9.20. So we have turned kind of a small amount of money into about a half a million dollars of economic benefit to the County of Kauai. And in these times now when we are trying to find economic benefit and fulfill a safety net, this is the program that does that. So I wanted to thank you for your grant. We have been working with Beth Tokioka for the first six (6) months and now the leadership is with George, and we love working with the Office of Economic Development. It is interesting that this Council saw this issue as an economic development issue. A lot of places, they stick it under Human Services or something and it truly is an economic issue that is good news of economic development for Kauai. So thank you very much and if you have any questions, George can answer them because he is brand new. Chair Asing: Thank you. George, you have anything you want to comment on? GEORGE COSTA, DIRECTOR OF OFFICE OF ECONOMIC DEVELOPMENT: Council Chair and honorable Councilmembers, George Costa, Director of Office of Economic Development. I would like to thank Judy and the Food Bank organization for doing such a great job in such a short time accomplishing, and exceeding their goals in the first six (6) months. So I would like to acknowledge her and their efforts, and congratulate them. Chair Asing: Thank you. With that, Councilmembers? Councilmember Furfaro? Mr. Furfaro: Thank you Mr. Chair. Thank you for the presentation Judy and thank you George for being here. That was the thinking last time around in putting this in economic development, but let me ask you, in that dialogue, the Federal poverty level for the qualifications is 135% of... Ms. Lenthall: 130. Mr. Furfaro: 130 of the income of a family of four (4) being... do you know what that number is? Is it $23,000? Ms. Lenthall: It is not $23,000. Mr. Furfaro: For a family of four (4) I said and not for an individual. COUNCIL MEETING. - 8 - • January 14, 2009 Ms. Lenthall: I don't know the number. If I did, I would give it wrong, so I can send that back to you, and it is not just a family of four (4), I can give it you for 1, 2, 3, and 4. Mr. Furfaro: I only used that as an example. There is for single, there is for two (2), there is for three (3), there is for four (4). I used that because we are used to dealing with that the level for housing. Ms. Lenthall: I can get that information. Mr. Furfaro: But if you could get that information and certainly I think it is important to the Council based on the fact that the perception is that the State is raising it to 180. So if you could get that chart to us, I would certainly appreciate it or get it to the Office of Economic Development and if Mr. Costa can get it over to us. Ms. Lenthall: I would be happy to. Mr. Furfaro: And thank you for the good work Judy. Ms. Lenthall: Huge gap. Chair Asing: Thank you. With that, Tim? Mr. Bynum: Good morning Judy. Thank you for coming. You know, as usual, thanks for looking at the big picture... not only the narrow program that they are working, but how other things are affecting that. So it is tough for the County to fund these kinds of programs because it is typically not our responsibility, but we saw the need and you brought it to us, so that this was a big bang for the buck to use your words... kind of proposition and really impacted our kupuna directly. Even talk about it today, but the method that you are taking... the kind of (inaudible)... easier emotionally to get involved in the benefits that they are eligible for in essence. I did have a couple of questions. I heard about the asset test thing and Senator Hooser's bill which I am very appreciative of him taking the initiative to... because, like you said, it doesn't make sense. We set our own rules, more restrictive than the (inaudible). I mean, and then restrict benefits to our citizens which, so you will certainly get our support of doing that. You also mentioned... I wasn't clear on the level going from 130 to 185, is that an administrative rule or a legislative fix, or how does that... Ms. Lenthall: It can be administrative rule, but that will take a longer period of time than doing it legislatively. Mr. Bynum: So the asset test and the poverty level or... two (2) separate issues, yea? COUNCIL MEETING • - 9 - ~ January 14, 2009 Ms. Lenthall: No, they are tied together. They call it expanded categorical eligibility. That is the buzz word. Mr. Bynum: That is Federal speak, right? Ms. Lenthall: It is Federal speak and in the trade, they call it CATL. Mr. Bynum: Right. Ms. Lenthall: And what we have to do is say, we want expanded CATL, then it is done. Mr. Bynum: So in case the public is... and make sure that I get it right, you are basically assisting citizens who are eligible for these services to apply, to get them, and to increase the amount of their food budget in essence. And the economic development is those are dollars that are being spent in our County that may not have been spent otherwise. So we are very pleased... it makes sense for it to be in economic development. It is also the department that administers these things really well, so I want to acknowledge that both for Beth and for Mr. Costa that economic development has had a history of administering these relationships really well. So thank you again for thinking outside of the box and for doing what we asked you to do to look for other funding sources because, like I said, typically the counties don't fund these kinds of social service programs, but this Council, with the leadership that we've had has stepped into the breach when the State kind of didn't do what was logical or made sense to us, and protected the health and welfare of our citizens. So, you know, thank you very much again for being a good partner with the County. , Chair Asing: Thank you. With that, Councilmember Kawakami? Mr. Kawakami: Thank you Mr. Chairman. Good morning Mr. Costa, Ms. Lenthall. I just had one question. In the report, it states that for every $5 in food stamp, you know, it is a $9.20 economic benefit which I just find totally amazing. Do you know how they calculate that multiplier effect to the $5? Ms. Lenthall: That was calculated by USDA and their cadre of economic policy analyst geniuses. They did it at the National level. That is the National level and I don't know how they did it, and even if I saw the report, I am not sure that I would understand it anyway. But it was done by USDA through their economic policy institute and analyst department of USDA. Since they are handing out the money, I figure they would know. It surprised me too and to have food stamps have more bang for the buck than most of the stimulus issues that people... that I thought were going to be more effective, to have food stamps up at the top of the list, that surprised me. COUNCIL MEETING - 10 - • January 14, 2009 Mr. Kawakami: Okay, thank you. Chair Asing: Thank you. Any other questions for Judy? Comments? If not, thank you Judy very much. I would like to thank you and George. Thank you for all your hard work and I guess you took the ball, you ran with it, and you scored, so thank you very much. Ms. Lenthall: We are getting close. Chair Asing: We appreciate it. Ms. Lenthall: Thank you so much. Chair Asing: Thank you again. With that, Bruce? BRUCE PLEAS: Bruce Pleas for the record and also for the record which I would just like to state now and have it be in effect for the rest of this meeting. I am a resident of Kauai. I am here testifying for myself. I do not belong to any lobbying organization, registered, or unregistered, and I do not represent any organization at all. So if that is alright with the Chair, I will just state that now, and just come forward with my name for the rest of the meeting. I fully support Judy in what she has done. She does a wonderful job. She is very good and I fully support grant dollars from the County to the Kauai Food Bank. What I am here for is a process, a legal question that I have. County Charter, Code of Ethics, Section 20.02(d) states that no officer or employee of the County... Chair Asing: Wait a minute now. Let's stay with the communication which is from the Food Bank. Anything other than that, we will not be accepting at this time. Mr. Pleas: Do I have to write a letter into the... Chair Asing: Yes. Mr. Pleas: Thank you very much. Chair Asing: Thank you. Is there anyone else that wants to speak on this item? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Do we have a motion Peter? No, can we have a motion to receive communication C 2009-32? Mr. Furfaro moved to receive C 2009-32 for the record, seconded by Mr. Bynum, and unanimously carried. COUNCIL MEETING • - 11 - ~ January 14, 2009 Chair Asing: Next item please? Mr. Nakamura: We are back at the top of page 2 of the Council's agenda for items for receipt. Communication C 2009-33, communication C 2009-34, communication C 2009-35, communication C 2009-36, and communication C 2009-37. C 2009-33 Communication (12/08/2008) from the Director of Personnel Services, transmitting for Council information, the following classification requests which the Department of Personnel Services will be reviewing and taking appropriate action: • Fire Department, Position No. 701 (Present Class of Fire Service Trainer to Fire Fighter III) • Fire Department, Position No. 699 (Present Class of Fire Apparatus Operator to Fire Fighter III) • Fire Department, Position No. 698 (Present Class of Fire Apparatus Operator to Fire Fighter III) • Fire Department, Position No. 697 (Present Class of Fire Apparatus Operator to Fire Fighter III): Mr. Kaneshiro moved to receive C 2009-33 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-34 Communication (12/15/2008) from the Chief of Wastewater, informing the Council of recent emergency procurements for pump replacements that were required at the Lihu`e and Wailua Wastewater Treatment Plants: Mr. Kaneshiro moved to receive C 2009-34 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-35 Communication (12/16/2008) from the Director of Finance, transmitting for Council information the Period 4 Financial Reports -Statement of Revenues as of October 31, 2008: Mr. Kaneshiro moved to receive C 2009-35 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-36 Communication (12/17/2008) from the Director of Finance, transmitting a request for appropriation of $40,203 to establish a line item within the Fire Department for the lease of a 3,100 square feet commercial space for the remainder of the fiscal year and the term of the lease will be for three (3) years with two (2) one year options: Mr. Kaneshiro moved to receive C 2009-36 for the record, seconded by Mr. Bynum, and unanimously carried. C 2009-37 Communication (12/17/2008) from the Director of Finance, transmitting a request to transfer $833,696 from the County's General Fund to the Golf Fund ($233,405) and Sewer Fund ($600,291) which will adjust the budgeted fund balances to actual fund balances in these funds: Mr. Kaneshiro moved to receive C 2009-37 for the record, seconded by Mr. Bynum, and unanimously carried. COUNCIL MEETING - 12 - • January 14, 2009 Chair Asing: Next item please. Mr. Nakamura: On the top of page 3 also for receipt is communication C 2009-39. Mr. Furfaro: Excuse me, I am very sorry. Did we just move to receive item C 2009-36? Chair Asing: Yes. Mr. Furfaro: Okay, I had two (2) questions that I just wanted to raise. I am very sorry Mr. Chair. Chair Asing: Go ahead. Mr. Furfaro: I just wanted to see on this money piece for the Fire Department, it does not confirm that the rent base that they are asking for would include the common area maintenance as part of the rents and fees. Chair Asing: Yes, it does. Mr. Furfaro: It does, okay. ' Chair Asing: Well, I took the liberty of finding out from the Fire Department, so it is. Mr. Furfaro: It includes the CAM? Chair Asing: The CAM is included. Mr. Furfaro: Thank you very much. That was my only question and thank you for following up on that Mr. Chair. Chair Asing: Where are we now Peter? Mr. Nakamura: We are at page 3 communications for approval. Communication C 2009-40... I am sorry. Communication C 2009-39 on the top of page 3 for receipt. C 2009-39 Communication (01/08/2009) from Chief, Building Division, Department of Public Works, transmitting a request for appropriation of $50,000 of contingency funds for the Work Force Initiative (Fishbowl) Project: Mr. Kaneshiro moved to receive C 2009-39 for the record, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING • - 13 - ~ January 14, 2009 Mr. Nakamura: Now we are on page 3, communication for approval which is communication C 2009-40. C 2009-40 Communication (12/03/2008) from the Executive on Transportation, requesting Council approval to apply for, receive, indemnify, and expend Federal Transit Administration (FTA) Section 5309 and 5310 grants for capital expenditures in the amount of $509,600 and $72,000, respectively: Mr. Furfaro moved to approve C 2009-40, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009-41. C 2009-41 Communication (12/10/2008) from the Fire Chief, requesting Council approval to accept a $500 monetary donation from Mrs. Clorinda Nakashima for the efforts of the Fire Department in trying to find her husband which funds will be deposited into a grant account for future use in recognizing firefighters: Mr. Kaneshiro moved to approve C 2009-41 with a thank you letter, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009- 42. C 2009-42 Communication (12/12/2008) from the Chief of Wastewater, requesting Council approval to expend an estimated $20,000 to construct approximately 60 linear feet of 6 feet high chain link fence for the newly constructed valve system at the Waimea Wastewater Treatment Plant Effluent, TMK 1-2-6:9: Mr. Furfaro moved to approve C 2009-42, seconded by Mr. Bynum. Chair Asing: I'd like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Bruce? Mr. Pleas: Bruce Pleas for the record. The 60 feet, 6 foot high fence, I think somebody needs to check with the local fence people as whether $20,000 is... it seems a little steep fora 60 feet of a 6 foot high fence. That is just my comment on it. Thank you. COUNCIL MEETING - 14 - • January 14, 2009 Chair Asing: Thank you Bruce. We will do some follow up Bruce on that item. With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: The motion to approve C 2009-42 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The matter for approval is communication C 2009-43. C 2009-43 Communication (12/16/2008) from Robert G.F. Lee, Major General, HING, Director of Civil Defense, requesting Council approval to appoint Mayor Bernard Carvalho, Jr. as the Deputy Director of Civil Defense, in accordance with H.R.S. Section 128-3(d): Mr. Furfaro moved to approve C 2009-43, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009- 44. C 2009-44 Communication (12/17/2008) from the Chief of Wastewater, requesting Council approval to expend approximately $25,000 to replace and upgrade the existing Supervisory Control and Data Acquisition (SCADA) system software, along with a radio system and appurtenances for the `Ele`ele Wastewater Treatment Plant which funds will be used from the Wastewater Division's current budget for supplies: Mr. Furfaro moved to approve C 2009-44, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Kawakami: I just had one question on this. Is this going to take care of the problem or do we need to replace the whole system? From what I read, this is just a software upgrade? Chair Asing: That is my understanding. Mr. Kawakami: So my question is, is this going to be a reoccurring problem or do we need to look into a complete system upgrade or change? Chair Asing: Peter, do you know if this is urgent that needs to be done now or otherwise we can refer it to Committee? Mr. Nakamura: Either that or we can move it to the end of the agenda to see if we can get a hold of Mr. Tschupp prior to the end of the meeting. COUNCIL MEETING ~ - 15 - ~ January 14, 2009 Chair Asing: We are going to move this to the end of the agenda. In the meantime, can you get in touch with the department to get the information. Mr. Kawakami: You know, my purpose for this question is not to delay any urgent action, but it is just to kind of ask if we are piecemealing this thing or do we need to look at complete solution to the problem. Chair Asing: Okay, we will get that information. Go ahead. The rules are suspended. There being no objections, the rules were suspended. Chair Asing: Bruce? Mr. Pleas: Bruce Pleas for the record. Since you are sending for Ed, could you also include some information on the fence too? Chair Asing: I am sorry. Mr. Pleas: Could you also include some C 2009-42 which is Ed's wastewater... maybe he has some information on that. Mr. Furfaro: Bruce, I do want to point out that any purchase for moneys and so forth based on square footage specifications, standard installation, and so forth, is subject to the procurement laws of the County of Kauai. I don't think that would be necessary because it would have, in fact, had to hurdle that procurement specifics, but... Mr. Pleas: I will take it up with Ed when he comes here. Mr. Furfaro: But I also do want to say that, if you recall on this particular item C 2009-44, the reality is on the controls on managing everything from the flow to the digester tanks and so forth... this might be just a short term upgrade, but I believe, overall, we had a presentation last year to us that total upgrades for Wastewater Division were in excess of $40 million. This, in fact, was clearly, as you pointed out, just a short term upgrade to meet Department of Health requirements. Mr. Pleas: Yes, I was present for that and I understand. Thank you. Chair Asing: Thank you Bruce. With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: COUNCIL MEETIN~ - 16 - ~ Jan uary 14, 2009 Mr. Nakamura: We are on page 3, the bottom of page 3 for approval communication C 2009-45. C 2009-45 Communication (12/23/2008) from Hawaii State Association of Counties (HSAC) President Derek S.K. Kawakami, requesting that all counties consider and approve the proposed new slate of HSAC Executive Committee Officers for the remainder of the 2009 Fiscal Year as follows: • Nestor Garcia, President • Derek S.K. Kawakami, Vice-President • Joseph Pontanilla, Treasurer • Dennis "Fresh" Onishi, Secretary Mr. Furfaro moved to approve C 2009-45, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Furfaro: In this particular item, I also just want to take a moment to thank Councilmember Kawakami for being over in Honolulu yesterday representing the Council, along with the Mayor, and the presentation to the Legislature. The fact of the matter is, we are asking for money for wastewater which was an earlier topic as well as $900,000 on the bypass road repairs. But I wanted to thank you for taking the initiative for being there Mr. Chair, at this time. Thank you. Chair Asing: Thank you. Any further discussion? I'd also like to thank Derek for showing up and for the Mayor to try to be frugal in asking the Legislature. We only asked for really two (2) specific projects and I do not think that is the same that they got from the other counties. With that, the motion is to approve. Any further discussion? The motion to approve C 2009-45 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval on the top of page 4 is communication C 2009-46. For communication C 2009-46, C 2009-47, and C 2009- 48, if we could move these matters to the end of the agenda. Chair Asing: Can we have a motion to that effect? Mr. Furfaro moved to move C 2009-46, C 2009-47, and C 2009-48 to the end of the agenda, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 4, the next matter for approval is communication C 2009-49. COUNCIL MEETING ~ - 17 - ~ January 14, 2009 C 2009-49 Communication (12/29/2008) from Chief, Building Division, requesting Council approval to apply for, receive, and expend Federal Emergency Management Agency (FEMA) funds of $80,250 for hurricane hardening of the Mo`ikeha Building which will protect the building from hurricane force winds and County match will be $26,750: Mr. Bynum moved to approve C 2009-49, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is C 2009-50. C 2009-50 Communication (12/29/2008) from the County Executive on Aging, requesting Council approval to apply for, receive, and expend $270,396 for a two-year period from HMSA Foundation which will be used for two evidence-based programs currently being implemented by the Agency on Elderly Affairs and includes program operational costs for EnhanceFitness and Chronic Disease Self- Management Programs: Mr. Kawakami moved to approve C 2009-50, seconded by Mr. Bynum. Chair Asing: I am sorry, do you have a question? Mr. Bynum: Yea. I just want to acknowledge the Office on Aging for, you know, working diligently to keep a program going for senior fitness and disease control. That has been very successful and they are seeking continued funding from sources, we are not faced with the decision of whether we have to fund it with County sources. So I am familiar with this program and they are doing a good job, and I just want to acknowledge them. Chair Asing: Thank you. Any further discussion? The motion to approve C 2009-50 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for receipt is communication C 2008-280. C 2008-280 Communication (09/12/2008) from Council Chair Jay Furfaro, requesting that the Administration be present to provide an update on the Department of Personnel Services' policies on recruitment, hiring, and retention plan: Mr. Furfaro: Mr. Chair, I do want to share that there is a letter in our packets. I wanted to thank Joyce and Mr. Fernandez for meeting with me. I met with them for some period of time on December 18 and, you know, it is specifically talking about personnel matters that may arise from certain changes COUNCIL MEETIN~ - 18 - ~ January 14, 2009 and compliance with laws. And they made me feel comfortable about their awareness and their understanding that they need to continue to be upgrading their policy, so at this time, I'd like to reference that response to my meeting, and ask if we could receive this item. Chair Asing: Thank you. Mr. Kaneshiro moved to receive C 2008-280 for the record, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval are legal documents. LEGAL DOCUMENTS: C 2009-51 Communication (OU02/09) from the County Treasurer, requesting Council approval to indemnify Alert Alarm of Hawaii for repair and maintenance contracts (approval of "limitation to liability" as requested in item no. 4 of the following contracts): • Contract No. 7902; and • Contract No. 7903 Mr. Kaneshiro moved to approve C 2009-51, seconded by Mr. Furfaro, and unanimously carried. C 2009-52 Communication (12/08/2008) from the Executive on Transportation, Transportation Agency, transmitting for Council approval and recommendation to indemnify the landowner to establish bus stops on their property as follows: • Right-of--Entry Agreement by and between U.S. Navy Pacific Missile Range Facility (PMRF) and the County of Kauai for the Kauai Bus to establish a bus stop for picking up and dropping off of passengers on their premises limited to the parking lot area. Mr. Kawakami moved to approve LEGAL DOCUMENT: C 2009-52, seconded by Mr. Bynum. Chair Asing: Any discussion? I'd like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Bruce? Mr. Pleas: Bruce Pleas for the record. I support this wholeheartedly. This is much needed. With the Chair's permission, I would like to... I was hoping that Ms. Rapozo would be here, so that I could expound a little bit on COUNCIL MEETING ~ - 19 - ~ January 14, 2009 the westside on the bus stops and with the Chair's permission, I would hope to be able to speak and also it would be for the Parks/Transportation Committee Chair. Mr. Kaneshiro: I think what we should do is, Mr. Chair, to bring this up with a different communication because we were talking specifically on the westside, and what are some of the routes and have some discussion on that rather than bring that up on the legal document that we are discussing right now. Mr. Pleas: Okay, that is fine. Mr. Furfaro: I concur with Councilman Kaneshiro. The communication in front of us is about a legal document. Bruce, and the fact of the matter is that the Council is the body that approves access to easements, and so forth, but we could put a new communication on as suggested by Councilmember Kaneshiro. Chair Asing: Thank you Bruce. With that, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: The motion to approve LEGAL DOCUMENT: C 2009-52 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, if we could go back to page 3 of the Council's agenda on communication C 2009-44. C 2009-44 Communication (12/17/2008) from the Chief of Wastewater, requesting Council approval to expend approximately $25,000 to replace and upgrade the existing Supervisory Control and Data Acquisition (SCADA) system software, along with a radio system and appurtenances for the `Ele`ele Wastewater Treatment Plant which funds will be used from the Wastewater Division's current budget for supplies: Chair Asing: Thank you. What I would like to do, Ed, please? There being no objections, the rules were suspended. Chair Asing: With that, Ed, there was a question from Councilmember Kawakami regarding this item. Councilmember Kawakami, you want to express your question? Mr. Kawakami: Thank you Mr. Chair. My question is relatively simple. I was just looking at the request and I was just wondering, this upgrade, COUNCIL MEETING - 20 - ~ January 14, 2009 how much of an impact is it going to be in securing this system as a whole versus is it time that we just take a look at fixing the big picture or is this just a temporary fix that is just urgently needed right now? ED TSCHUPP, CHIEF OF WASTEWATER: For the record, Ed Tschupp, Chief, Wastewater Management Division. As I understand it, the question is regarding the `Ele`ele SCADA repairs. We are actually pursuing both a bigger picture solution as well as... this would be essentially a short term solution. As my communication indicated, at this particular facility, we are relying upon a rather old computer, and the version of the software that is in place... we need to upgrade the software to be able to put that software on a newer box. So I believe something on the order of $10,000 to $11,000 worth of that cost is the software re-licensing... upgrading the license a couple versions, so it can be put onto a new box. And then we would also have a maintenance agreement on that license for a year's worth of service and support. There is a couple of other pieces of equipment that are in the package that solves some other problems. But, essentially, a relatively short term localized solution. What we are doing right now, is we have a consultant on board designing an islandwide SCADA system that will tie all of our pump stations and treatment plants together. Currently, the Lihu`e and `Ele`ele plant have essentially the same SCADA systems. They are CIRCA 1994 and, unfortunately, during that period of time, the way that people did SCADA systems was pretty proprietary. Subsequently, in today's world, it is more open architecture, so we considered, essentially, floating out the new versions of what we have to all the plants, and kind of made a decision that it was probably better off to start with a new system. The system that we have at the Wailua Plant is even older than that. In fact, we are now having problems with... the manufacturer no longer makes that, so that one pretty much is obsolete. The `Ele`ele and Lihu`e systems are... we would be well advised to replace them in their entirety. It may be that the software will end up being the same software because we are talking about wonderware and that is probably the most commonly used SCADA software, so it may be that there will be residual value on the upgraded license when we come in with the bigger package, but we are essentially pursuing both. I hope that was responsive. Mr. Kawakami: No, that helps me out a lot as far as understanding the timeline that we are taking action on this particular matter because it does concern me... reading the newspaper about Honolulu's problem with wastewater and so on and so forth, and I would hate to see us be in that same boat one day. Thank you for the report and answering my question. Mr. Tschupp: Okay. Chair Asing: Any further questions? Thank you. With that, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: COUNCIL MEETING ~ - 21 - • January 14, 2009 The motion to approve C 2009-44 was then put, and unanimously carried. Chair Asing: Any further discussion? The next item please? Mr. Nakamura: We are back on page 5 of the Council's agenda Mr. Chair, claims. CLAIMS: C 2009-53 Communication (12/10/2008) from the County Clerk, transmitting a claim filed against the County of Kauai by Demetria King of State Farm Insurance as subrogee for Alec and Agnes Blackstad for damages to their vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-53 to the County Attorney's Office for disposition and report back to the Council, seconded by Mr. Kawakami, and unanimously carried. C 2009-54 Communication (12/31/2008) from the County Clerk, transmitting a claim filed against the County of Kauai by Thomas E. Niedfeldt for business expenses incurred, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-54 to the County Attorney's Office for disposition and report back to the Council, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: The next item please? Mr. Nakamura: The next matter for approval is a committee report. COMMITTEE REPORT: PLANNING CONIlVIITTEE REPORT: A report (No. CR-PL 2009-1) submitted by the Planning Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2294 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Transient Vacation Rentals)," Mr. Bynum moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2294, Draft 1) Chair Asing: What I would like to do now is take a caption break and see if we can kind of reorganize everything. We are ahead of schedule and we have COUNCIL MEETING. - 22 - ~ January 14, 2009 some executive sessions in time periods that we are going to have to make some adjustments, so we will try to make those adjustments when we get back. There being no objections, the Chair called for a recess at 10:30 a.m. The meeting was called back to order at 11:01 a.m., and proceeded as follows: Mr. Nakamura: At this time Mr. Chair, we are on page 6 of the Council's agenda which are bills for first reading. If we could start with Proposed Draft Bill No. 2299. Chair Asing: Peter, hang on. Before... and this is just for information of the general public that is here and probably the general public that is watching. We are making some changes to the format of the agenda items that we are taking up. The reasons for it is we have some executive sessions that we've scheduled and these executive sessions. are with attorneys and third party administration regarding some of the Department of Water, Parks & Recreation, Fire Department issues, and then we have the Charter amendments that we need to discuss. So we have scheduled the meetings according to the times and what has happened is, we are so far ahead right now that we are making some changes. So with that, on page 6, we are going to take the three (3) first reading items, so Peter is going to start with that, then we are going to go into executive session. So with that, Peter, can we take the first item? Mr. Nakamura: Mr. Chair, under bills for first reading on page 6. BILLS FOR FIRST READING: Proposed Draft Bill No. 2299 - AN ORDINANCE AMENDING ORDINANCE NO. B-2008-672 AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS ESTIMATED IN THE GENERAL FUND (Appropriation of $40,203 from the General Fund to Building Lease, Fire): Mr. Kaneshiro moved for passage of Proposed Draft Bill No. 2299 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for February 11, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by Mr. Furfaro, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? COUNCIL MEETING ~ - 23 - ~ January 14, 2009 Mr. Nakamura: The next bill for first reading is Proposed Draft Bill No. 2230. Proposed Draft Bill No. 2300 - AN ORDINANCE AMENDING ORDINANCE NO. B-2008-672 AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($833,696 from the County's General Fund to the Golf Fund of $233,405 and Sewer Fund of $600,291): Mr. Furfaro moved for passage of Proposed Draft Bill No. 2300 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for February 11, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by Mr. Kaneshiro, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The last bill for first reading is Proposed Draft Bill No. 2301. Proposed Draft Bill No. 2301- AN ORDINANCE AMENDING ORDINANCE NO. B-2008-673 AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Work Force Initiative (Fishbowl) Project): Mr. Kaneshiro moved for passage of Proposed Draft Bill No. 2301 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for February 11, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by Mr. Furfaro, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: With that, what we are going to do now is we are going to move into executive session and take the three (3) workers compensation cases first. So we are going to move into executive session, come back after lunch. When we come back after lunch, we will have the public hearing first and after the public hearing, we will have the executive session for the three (3) items which one is the Charter amendment, and then we will have two (2) cases... the Pflueger case COUNCIL MEETING - 24 - ~ January 14, 2009 and the Gribble case. After that, we will open it up back to the agenda, and then you will have an opportunity to speak on all of the items that will be on the agenda. So that is the series of schedules that we have set up. With that, we are going to move into executive session and take care of the three (3) workers comp cases first. This is going to be by phone in Honolulu and we will have the Administration here to take care of those three (3) cases first. After that, we go to lunch, then we come back after lunch, we are going to go into executive session for the Pflueger, the petition, and the Gribble case, then after that we go back to the agenda, and then we will have an opportunity to speak on all of those items. With that, County Attorney? There being no objections, the rules were suspended. MARGARET SUEOKA, DEPUTY COUNTY ATTORNEY: Deputy County Attorney Margaret Sueoka. We recommend that you convene in executive session for ES-372, ES-373... the purpose of this executive session is to consult with Council's legal counsel to receive legal updates, overviews, and recommendations for the purpose of obtaining Council approval for proposed settlement of workers compensation claims, and evaluating employee's ability to return to work. ES-372 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim, and evaluate employees' ability to return to work. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure: ES-373 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim, and evaluate employees' ability to return to work. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure: ES-374 Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4) and (8); and Kauai County Charter §3.07(E), the purpose of this executive session is to consult COUNCIL MEETING ~ - 25 - • January 14, 2009 with the Council's legal counsel to receive legal updates, overviews, and recommendations for purposes of obtaining Council approval of proposed settlement of a workers' compensation claim, and evaluate employees' ability to return to work. This deliberation and/or decision making involves matters that require the consideration of information that must be kept confidential as, inter alia, it concerns significant privacy interests. The significant privacy interests relate to a medical history, diagnosis, condition, treatment, or evaluation and which, pursuant to state or federal law, including Health Insurance Portability and Accountability Act, are protected from disclosure: Mr. Bynum: Did you say 374 as well? Ms. Sueoka: Did I miss 374? Mr. Bynum: I think so. Chair Asing: With that, thank you very much. I'd like to call the meeting back to order and move into executive session. The meeting was called back to order, and proceeded as follows: Mr. Bynum moved to go into session on items ES-372, ES-373, and ES-374, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Thank you. We are going to move into executive session and then after executive session, we will take lunch. My guesstimate is that we have the public hearing scheduled for 1:30 p.m., so after the 1:30 p.m. schedule, we will go into executive session again for the Charter amendment for the Pflueger case and for the Gribble case, and then it will be open to the public. We will go through the process. So timing wise, I would say, if we take one hour on those three (3), it should be about 2:30 approximately that we would be back into open session... 2 o'clock, 2:30, or thereabouts. With that, thank you everybody. There being no objections, the Chair called for a recess at 11:09 a.m. The meeting was called back to order at 2:00 p.m., and proceeded as follows: Chair Asing: With that, we have the County Attorney here and we are going to go into executive session, so County Attorney, please? There being no objections, the rules were suspended. DARREN SUZUHI, ACTING COUNTY ATTORNEY: Good afternoon Council Chair, Darren Suzuki, Acting County Attorney. I guess we will go in order. ES-369. COUNCIL MEETING. - 26 - • January 14, 2009 EXECUTIVE SESSION: ES-369 Pursuant to Haw. Rev. Stat. §§92-4, 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing on the legal ramifications and/or requirements and/or claims and/or potential claims relating to charter amendments adopted in the 2008 general election and other related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to legal ramifications and/or requirements and/or claims and/or potential claims relating to this agenda item: Chair Asing: Thank you. Bruce? Mr. Pleas: Bruce Pleas for the record. I would really ask the members of this Council to vote against going into executive session at this time. What the ES is about, the Charter amendments in the 2009 General Election and other related matters. I would like to have an open meeting first to go over what the attorney has to say and items that he feels that need to be in executive session be brought forward. The reason is and I asked to the people that ran with me (new people) that we were here for open government. I ask you to vote "no" on this and first let's go into open session, so the public feels what they voted on before you go into executive session is being discussed openly. This was done before and left a bad taste in the people's mouth. So I really would suggest as a courtesy to the voters that you go into open session, discuss what can be discussed in open session on the Charter amendments, identify which Charter amendments you are doing specifically, what your questions are, and if the question that is asked, the attorney feels should not be in open session, then identify that as we are going into executive session for this question. So at least the questions that you are asking that will be in a closed session, the people will know what the questions are that are going in. It is just, to me, something that I think before executive session on this item should be in open session. Thank you. Chair Asing: Rich? RICHARD HOEPPNER: I suppose you know that I am here to talk about 3.19, the new law... Rich Hoeppner is the name. I am sorry. The CRG amendment or the General Plan amendment as it is called. If there is no actual pending litigation related to this amendment, then some people feel that there are no grounds to discuss it in secret. It should be in open session. Discussion of hypothetical theories or why some hypothetical parties may decide to litigate in the future is not grounds for going into private session now... executive session now. The public has the right to know what the Council is discussing on this amendment and what you are being told by the County Attorney unless there is litigation. Section 3.19, Section D, I'd like to read to you. I quote, "the Council shall adopt such ordinances, laws, rules, and regulations as are necessary to carry out the terms and intent of this amendment to the Charter." That is pretty straight COUNCIL MEETING • - 27 - ~ January 14, 2009 forward. And "shall", to me, means it is required, it is not optional. You shall do this, so the law is pretty straight forward and plain here what you are going to do on 3.19. And that is the one that I am concerned about going into executive session on is that particular amendment and I agree with Bruce. This should be discussed in open session with the public hearing it on what you are going to be discussing on that particular amendment. Because if you are going to talk about litigation to pull another `ohana amendment, I think you are in violation of Section D by doing that. So if the County Attorney has some suggestions on how you can accomplish this, I think it should be in open session. Thank you. Chair Asng: Thank you. Mr. Bynum: I didn't understand the last thing that you said. If the County Attorney has suggestions on how we are going to accomplish this, what is this? I am sorry. Mr. Hoeppner: If the County Attorney has some suggestions on how you are going to accomplish Section D which you are required to do, then that should be in open session. Mr. Bynum: Okay, now I understand what you are saying. Mr. Hoeppner: There is one other thing I'd like to say. If any of you have an interest in getting the respect of the public by implementing the public mandate, this law was passed 63 to 36... some people would call that a mandate and if you are interested in doing that, a vote against going into executive session on this particular amendment, would be a step in the right direction to gain the respect of the public. Chair Asing: Thank you. SCOTT MIJARES: My name is Scott Mijares for the record. I am here to testify about this potential vote to go into executive session regarding the Charter amendments. I know I speak on behalf of myself, but I am quite sure I probably speak for the 63% to 64% of the voting public who voted in favor of the County having some tool or instrument to actually implement the General Plan which we spend a lot of time and effort to develop. We are so off target of where the General Plan is and we are actually are, it really requires some attention. Keep in mind also that this vote came about with very little advertising. It was purely grassroots, small, small budget, yet 63% of the voting people who voted everybody into office were in favor of this. I think, like Bruce and Rich, that this is an item that if it is not subject to any litigation, it should be discussed in open. The County Attorney did have a chance to take a look at this amendment and give advice on it before it even appeared on the ballot. There were no red flags that popped up that would prevent it from even being voted upon. So for those reasons, I would strongly encourage the Council to take up these issues in an open forum where the voting COUNCIL MEETING. - 28 - ~ January 14, 2009 public could see what your concerns are, and have a chance to actually give you some input, and help you along the way because that is what we all want. We want responsible growth, we want responsible development, and sustainable development here on the island. It makes you look good, it makes us feel good, and it makes it a great place for us to have a good tourist economy, and a strong well rounded economy. Thank you. Chair Asing: Thank you. Is there anyone else? Glenn? GLENN MICKENS: For the record, Glenn Mickens. I just want to say that I totally agree with the other three (3) speakers. I think you guys are empowered to keep things before the public as open as possible and by seeing something like this go on the agenda, it just sounds like, you know, somebody is doubting or trying to find a way to circumvent what has been passed by the people. I think that is completely wrong, but I think all you guys agree don't you? That the public should be aware of what is going on. If it is something that is very secretive, something that is going to be (inaudible)... that you don't want to discuss and I can understand that, but not something that comes on the agenda like this and I think as Bruce and the other speakers have said, I think the public does have a right to at least here the rationale for saying that we are going to be able to go into executive session. Thank you. Chair Asing: Thank you. Mr. Taylor? KEN TAYLOR: Mr. Chair and members of the Council, my name is Ken Taylor. I also have to agree with the previous speakers on this issue. I guess I am really saddened. I mean here is a situation that about 64% of the voters that turned out in November voted for. This is my understanding the first time that this issue has been on the ballot or on the agenda for discussion, and for you to immediately take into closed session, I think it is totally irrespective of the community in general. I think you should have an open dialogue on this issue. If some issues during those dialogues and it should be a dialogue that is open to the public activity, so that we all know where we are coming from. It some arise out of that, that need to be clarified in closed session, so be it. Let that happen then, but for the first time for you to discuss this issue that the voters voted on to go into closed session on it is just a slap in the face of the community. I think it is sad if you move forward with this. I would really like to suggest that it come back on the agenda for open public discussion... have the dialogue, let us know and understand what are the concerns, and what are the issues that you folks are feeling, so that we can dialogue in the direction of possibly clearing up or coming to a conclusion that can resolve some of the problems that may exist. But this is a simple Charter amendment that needs to be addressed. The people have spoken, it is your obligation, you swore to uphold the constitution of this County. You are not doing that by going into closed session, so please say "no" to this closed session, bring it back on an agenda item in the near future or in Committee, and let's have the dialogue and see. Flush it out first, then if there is an issue that needs to be dealt COUNCIL MEETING • - 29 - ~ January 14, 2009 with in closed session, then do it, but not go into closed session first. First discussion on this item since it was voted on. You are going right into closed session and I think that is totally wrong and totally irresponsible. Thank you. Chair Asing: Thank you. Is there anyone else? Councilmember Kawahara has a question for you. Ms. Kawahara: Not for him. Chair Asing: Okay, thank you very much. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Ms. Kawahara: When I saw this come up on the agenda also, I had concerns about because I didn't feel that there was enough information here to explain to the public why we were going into executive session. Again, I am new on the Council and I understand the sensitivities about the Sunshine Law and executive sessions that the Council has dealt with. One of the things that I would want to address on a side note is to dispel any assumptions that I myself am trying to circumvent any of this. I think the majority of the people here understand that it is a law that we have to do and I personally am glad that it is in place. I feel that there must be something and I have been trying to talk with our County Attorney that we can release to the public. I was going to ask the public what it is... when we go into this executive... if we go into this executive session, I think that is what we are trying to do is to figure out what I want to ask is what can we say in public and what is legally, we can't say in public. But I positive... I can't imagine that there is nothing that we can say in public about this Charter amendment and our code. That is where I stand and I don't know if it happens before or after executive session, but I was fully going to discuss with the County Council attorney how we could do this because, again, it was a very large margin, and I agree... can I say that. Personally, it was very important to me for this to pass and I also believe that our public is wise enough and this is important enough that there has to be a way to be able to issue a statement that says there are going to be concerns in this context because there are two (2) documents. It is just something general like that to explain it beyond what is here. My hope is that we can do that whether or not we have to go into executive session first to figure out what is legal... what is more legal and what we can say in public. I would hope that you would understand that, that there might need to be a separation and that is why we would go into executive session to get the clarification of what would be something that we could submit to the public and what legally we have to keep, so we can defend the County in any situation. And I had a question also about hypothetical theories or possibilities of being sued in the future for you, for the County Attorney, about... one of the testifiers said that it shouldn't... the law says that we shouldn't go into executive session based on hypothetical theories or possibilities of being sued in the future, and I wanted to clarify that with the County Attorney if that is accurate. COUNCIL MEETING. - 30 - • January 14, 2009 Chair Asing: So do you want to ask the County Attorney anything? Ms. Kawahara: If it is accurate to say that we... Chair Asing: Hang on. Let's have the County Attorney up please. Mr. Suzuki: Darren Suzuki, Acting County Attorney. Ms. Kawahara: Thank you. I do have a question for you. One of the testifiers brought up the fact that going into executive session based on hypothetical theories or possibilities of being sued or somehow in the future is not a reason to go into executive session if it is hypothetical theories or possibilities. I wanted your comments on that. Mr. Suzuki: As I understand that you are new on the Council, but in keeping with our office's policy as far as legal opinions on basically any matter, we do not give oral opinions. What we request is that a request be put into our office in writing and we will do the research and respond back to the Councilmember in writing. Ms. Kawahara: Okay, so there is no way that you are going to be able to... if we give you the actual ordinance or code and you read it right here, you could clarify it for us? Mr. Suzuki: No, it is not as simple as reading an ordinance or code and give an interpretation. The way the law works is you have these codes and ordinances, but the actual application is based upon case law and case law is based upon specific set of facts and circumstances. You know, until we know exactly what are facts and circumstances that are related to a specific request, we cannot give a legal opinion based on just reading an ordinance. Chair Asing: Okay, are you through? Ms. Kawahara: I have another question, but I am going to digest his answer first and then I think I'd like to come back to him in a second. Thank you. Chair Asing: Tim? Mr. Bynum: The posting says that it is a briefing on legal ramification and potential claims. Is it appropriate for us to go into executive session to discuss legal ramifications of Charter amendments and potential claims? Mr. Suzuki: Well, I think in addition to that, there are other descriptions of why the intent of going into executive session and, again, you can't COUNCIL MEETING ~ - 31 - ~ January 14, 2009 take just one specific item of that and create a vacuum and say, well, because of that, we cannot go in. I mean it is up to you eventually whether to decide to vote or not to go in, but we felt that the posting is proper and, again, it is up to you at this point as far as if you feel you want to go into executive or not. Mr. Bynum: The posting says that we are going to go into a briefing for legal ramifications and potential claims. So is it appropriate for us to go into executive session to discuss potential claims. Mr. Suzuki: The posting as drafted, in our opinion, is appropriate and, again, it does not only include, you know, the two (2) sections that you just recited. So, again, you know, if you as Councilmembers do not feel it is appropriate, then you vote as such. But, again, the posting, we feel, is appropriate. Mr. Bynum: I guess the concern that I have is that I have asked this question just the way I posed it to you of County Attorneys a number of times because we have members of the public that say, it is not appropriate to go into executive session to discuss potential claims. And every other time that I have asked that question, the County Attorney has said, no... it is part of your duties and responsibilities to discuss potential claims. So without that assurance from you, I am going to have a difficult time going into executive session without assurance that... because I am unaware of any claims that have been filed, right? Mr. Suzuki: Again, you know, with getting to Councilwoman Kawahara's question as far as... you know, when you say that you have asked it in the past, I am not sure if it was verbally asked or you asked for a written opinion from our office, but, again, it has always been... if that question was posed to us in writing, you would have received a written legal opinion from our office. Mr. Bynum: It was exactly in these same circumstances where members of the public was saying that it is inappropriate to go into executive session because you are only discussing potential claims. I asked... I wanted the reassurance from my attorney... I don't... it is not my intent to do anything inappropriate or illegal, right? You know, I understand I think pretty clearly from being on Council for two (2) years that... the areas that we can discuss and the areas that we cannot, and some of the things that the public was saying a few minutes ago, you shouldn't have this kind of discussion. I certainly wouldn't engage in that in an executive session. The posting says that we are here to talk about legal ramifications and potential claims. So I guess I need assurances that we are on solid ground... if we go into legal... into executive session, then that is what we discuss, legal ramifications and potential claims. Mr. Suzuki: Again, like I said, you know, we feel that the posting is correct. Again, if you want a specific legal opinion on that answer, we will do that in writing if you submit a written request to us as you well know, it has been the policy of our office. COUNCIL MEETING - 32 - ~ January 14, 2009 Mr. Bynum: It just leaves me in a conundrum. Chair Asing: Lani, do you want to continue? Ms. Kawahara: Yes, thank you Chair. So you have submitted this ES item to us to put in the agenda, is that correct? Mr. Suzuki: Yes. Ms. Kawahara: And by submitting it to the Council, that doesn't mean you are saying that... you are saying that, yes, we have to go into executive session? You are just saying maybe? I am just going to show up and let's see if they are going to come with me? Mr. Suzuki: Well, it is our intent, but, again, it is up to the Council to decide if you do want to go into executive session. If not, that is the discretion of the Council. Ms. Kawahara: On a range of maybe you don't have to, to, yes, you better, or highly recommend it, where would you stand without having to go back to your office and write up a printed... Mr. Suzuki: Again, I am not going to answer a question posed, again, orally, where it is, you know, it is so vague as a range and so forth. Again, it is our policy if you do have a request for a legal opinion on a certain issue, then we will respond in writing if a request is submitted. Ms. Kawahara: One last question. You are going to say the same thing, but I do want it to be public. Obviously you have information or knowledge that you would like to give to the Council. Are you able to determine on your own or by experience, what we could say in public to explain why we are going into executive session besides what is just here from actual legal issues. Do you know what I am saying? Can you separate out something that we can... Mr. Suzuki: Sure I understand your question, but, again, we submitted the posting as we feel it is .sufficient and we are not going to... you know, once I comment on what we talk about or intend to speak about in executive session, then that defeats the purpose... the whole purpose of going into executive session. Again, you know, it is asking for an opinion, a legal opinion orally, and, again, we won't issue that. Ms. Kawahara: Okay, one last question, so what I was thinking is if we went into executive session, you gave us our briefing, and then we asked you, well, what of this briefing are we able to discuss and share with the public regarding the Charter and the General Election, would you be able to tell me that, so I could come back out after our discussion? COUNCIL MEETING • - 33 - • January 14, 2009 Mr. Suzuki: No, again, our... whatever question that you had for office to be put in writing and we will issue that. Ms. Kawahara: Okay, thank you. Chair Asing: Thank you. Councilmember Kawakami? Mr. Kawakami: Thank you Mr. Chair. I really don't have any questions for you, but I will be supporting to move into executive session for one reason. As I read this, we are here to discuss claims and/or potential claims. And, hey, I have been here a whole month and a half and I am interested in learning as much as I can. If we are having a County Attorney here saying that he believes that this posting is correct, that we have some claims and/or potential claims to be worried about... I would like to learn more about it. I can tell you what I would not support is any discussion outside of these parameters... any discussion on circumventing the people's will. I will just leave it at that and if not, I am ready to vote. Chair Asing: Thank you. Any further questions for the County Attorney? Councilmember Furfaro? Mr. Furfaro: As the County Attorney, the Acting County Attorney, the fact of the matter is that there are possibly a measurement of risk involved in certain interpretations based on the Charter amendment. Those risk may be subject to interpretations and/or conflicts of the administration of this bill because it is in direct conflict with the Charter. For example, I am not sure as a legislator how much control I actually have over the administration of permits, but I would like to know the measurement of risk. I read this interpretation as informing us of those potential liabilities and those potential risk, and that is the request that you have here. I see members in the audience shaking their head on my interpretation and so forth, and I just want to say that I think my reputation is based on what I earned in my business in this community and so forth. One of the bigger things that I have under oath is to measure the financial risk that I impose on the County with the wrong interpretation of some of these particular efforts along with the fact that there might be some inherent conflicts between my role as a legislator and my role to administer the Planning Department because that is what this piece so says. So if I understand this piece by understanding the dialogue and the Charter because it was not date specific. There is a 20 day waiting period after an election to verify the fact that that election was, in fact, certified. Without date specific in the bill, there is another 30 days that goes by that basically says, we need to implement that. By the time we implement that, we should be well aware of any potential claims or risks that might exist as a body. Could you indicate to me that the terms of this executive session is to measure those risks? Mr. Suzuki: I think the reason for the executive session, again, it is... without getting further in terms of explaining besides what is actually COUNCIL MEETING. - 34 - • January 14, 2009 posting, again, I think we will get into matters that may come out in executive session and, again, will defeat the purpose of being in executive session. Mr. Furfaro: And just as well as the questions posed by Councilwoman Kawahara, I too, regret the fact that out of first blush, out of this particular piece, that there would be accusations made against an individual or the body as not being respectful of the people. That is quite unnecessary in my point of view and I do know that my reputation is extremely important to me because I earned it. I earned it, but there are potential conflicts and risks in this as I am seeing the Council... being asked by the County Attorney for this briefing and that was the rationale behind your briefing, your request? Mr. Suzuki: Again, it is, you know, our request for executive session was to give Council a briefing based on the posting without getting into specifics which, again, would defeat the purpose. Mr. Furfaro: Thank you for letting me summarize in my own terms what I believe my responsibility here is on the Council and to compare this process as being similar to the `ohana charter amendment was not necessary. The fact of the matter, we responded in a different way to the `ohana amendment. We do have a 2% cap in place and the reality when we talk about this, this Council offered a growth bill at one time. It was suggested that the need to authorize a growth rate was not in the privy of the Council, but that is exactly where it does land. And it does expose some inherent conflicts of what kind of responsibility we have over the Planning Department. I think there is a conflict, so that is my comment. Chair Asing: Any questions for the County Attorney? No, if not, thank you very much. I'd like to call the meeting back to order. Rich, you want to speak again. Go ahead and come up. Mr. Hoeppner: I am Rich Hoeppner. Jay, I do fully respect your reputation. There are a couple things that I would like to comment on. This particular bill was not specific for growth. This was for compliance with the General Plan and I think this Council has a responsibility for compliance with the General Plan. If I am not mistaken, the Council presented the General Plan, so you do have a responsibility to do what this CRG amendment puts forth and that is compliance with the General Plan. So that is the only thing that I am concerned about and, again, this... the County Attorney requested the special session and still, he says, we are going in to get your ideas about this amendment can be stated in public. If he has specific items with regard to claims, then that should go into special session. But to discuss this ordinance, that should be in open session where the public can be involved in it. Mr. Furfaro: I have something for Rich Mr. Chair. Chair Asing: Go ahead. COUNCIL MEETING • - 35 - • January 14, 2009 Mr. Furfaro: Yes, Rich, I think, you know, I inherited the Planning Committee this term, but part of that was based on the fact that I am one of the very few Councilmembers that was a member of the CZO update which we are still waiting to come out of Planning. I was also a member of the General Plan Commission although two (2) years into it, I was reassigned to French Polynesia. But I do know the goals that was expressed in that document was the fact that, we, the Commissioners at the time, challenged the State because they mandated to us a 40,000 population census for visitors by the year 2020. We disagreed with that. We changed the number to 20,000. As you know, we are about 19,000 right now. So there is the first conflict that I have because the General Plan deals with population. This ordinance deals with units, growth rate. It deals with questions about what is the average occupancy rate of a unit. How many people is it in those units that we came out with these mathematical and analytical decisions on that. I am confused about that and yet I then became a Planning Commissioner for one term and used the Hanama`ulu expansion for 465 acres as being inconsistent with the General Plan because we were talking about population growth, and not unit growth. How did we come up with these arbitrary interpretations about 1.9 persons in an occupied room being the growth rate for the population, and then interpreting that to be the number of units. I am just sharing that with you because my reputation is very important to me. My name is, my family is important to me. This is our community and it has been for a long, long time, but I want to make sure that we have some understanding of what some of this terminology is, so that we can prevent ourselves from finding ourselves in any potential lawsuit because of the interpretation. And I think there was a great effort on part of the citizens that were part of that General Plan to get that number reduced by 15,000 visitors a day. We also have to recognize that there were entitlements that were in place at the time the General Plan was done. We also need to recognize that the economy was completely different than what we are dealing with now in this amendment. So there are many things there and I have no problem sharing kind of an idea of my concerns with you, but certainly I want to hear from the County Attorney. Unfortunately, I may have to do that in an executive session. Please, I want to make sure you understand. I appreciate your initiative that was started by the citizens. I don't not approve of the initiative, that is why we have it, but clearly, I also have a responsibility... one to the County that deals with understanding potentially if we have any exposure and what those risks are and who is making those interpretations and how consistent can we be. What does it mean to the Council and what authority do I have to mandate administrative duties over the Planning Commission, I have no idea. And, yet, I then... on this Council for six (6) years and I have been in other volunteer roles for four (4). I certainly would like to understand that potential risk. Thank you. Mr. Hoeppner: Okay, I would just like to respond to that by saying when we were doing this, we had the figures of visitors on the island and that is what the General Plan referred to was the number of visitors and the increase or decrease and that 1.5% that was talked about, that was the increase in growth. So we weren't just talking about units, we were talking about people... COUNCIL MEETIN~ - 36 - ~ January 14, 2009 Chair Asing: Rich, you know, I let Councilmember Furfaro go a little lengthy and I think we need to stay on the subject and the subject is the executive session and reasons for going into executive session, so could we stay in that area? Mr. Hoeppner: I was just responding to his comments on units and people. Chair Asing: And I understand that. Mr. Furfaro: Mr. Chair, I am just pointing out, one of the inherent conflicts that I have is are we dealing with population or are we dealing with units. Chair Asing: And I understand that. Mr. Furfaro: Thank you. Chair Asing: Thank you Rich. Bruce? Mr. Pleas: Bruce Pleas for the record. I am going to read for the public part of the ES. A briefing on legal ramifications and/or requirements and/or claims and/or potential claims relating to Charter amendments adopted in the 2008 General Election and other related matters. What this is covering... the amendments relating to County elections and that was about the Mayor, relating to County executive meetings, the Sunshine Law, relating to disclosure of interest... that was disclosing interest of public officials, relating to the Office of County Auditor... a brand new area in the government for auditing. Let's see, and relating to the implementation of the General Plan. So this ES for the public as I read it, covers all of these amendments, so just so everybody is aware. The other one is other related matters and now what other related matters... I hope it should be related to these amendments, but since there are... this covers a very broad spectrum and we can go off in other areas. So that is just for the public and put it on the record that this is what this ES is about. It is about a very broad range of what the public voted on in the past. Thank you. Chair Asing: Is there anyone else? Mr. Taylor: Chair and members of the Council. My name is Ken Taylor. I want to thank Councilman Furfaro for his comments in reference to some of the issues that Rich raised. And this is exactly the point that I was trying to make earlier was that this is the kind of dialogue that should be going on in public identifying the critical issues, then consider going into closed session on those particular issues, but let the public know and understand what each of you have in the way of concerns as they relate to this amendment. I think that is what we are COUNCIL MEETING • - 37 - • January 14, 2009 talking about. That is why we are saying have a public meeting on this issue, have the dialogue out in public, identify, so the public knows and understands that when you go into closed session, exactly what you are going into closed session for because in the public hearing, you have flushed out all of the issues. So it is just a better understanding throughout the community as to what is going on and I think that is what we are all trying to get to. We may be coming at it from different directions, but I think it is the comments that Councilmember Furfaro just reiterated that are the kinds of issues that need to be discussed in public before you go into closed session. And I think if you did that, everybody in the community would understand, and appreciate what you are doing. I think that is what we are trying to get on the table and move forward with. Thank you. Chair Asing: Thank you. Okay, this is the last one. Mr. Mijares: Once again, Scott Mijares. This is an incredibly frustrating dialogue to watch. You know, really, the County Attorney sat up here and said, I want to discuss with you the legal ramifications of this bill. My goodness, everything that you decide has legal ramifications. Can you be a little bit more specific for us? Can you help us out because just about anything you vote on is going to have ramifications that are legal. I think you guys deserve a little bit more from your County Attorney, otherwise he is going to be determining how your time is spent, what your agenda is. Let's keep in mind also that this is only the second Charter amendment ever placed on the ballot by the people, the voters of Kauai. The first one, people have a sour taste in their mouth. This is the second one. Please keep that in mind when you are voting. Derek, if you want to learn more about what the exposure is, write the County Attorney a letter. Let him tell you in writing what he believes your exposure is. By going into closed session, you are sending the wrong message to the voting public. We deserve to know how we can be involved or not involved in the way our County is being governed, and we used the Charter amendment to procedure to get our voices heard. Please, do not mute the voices of the voting public. Thank you. Chair Asing: Thank you. Go ahead Derek. Mr. Kawakami: Scott, my friend, what would give you the feeling that we are not trying to represent the voting public at this time? I mean I don't think anyone of us has said that we are against this Charter amendment. All we are trying to do is get a legal opinion, so that we can move forward, operate, and make things happen, and work for the people. I don't think anyone here has said that they are not in support of this Charter amendment, so what would give you the feeling that we are not here to represent the people and the voter's wishes? Mr. Mijares: Well, that is a great question and as someone who is deeply involved in the development in the CRF amendment... before you got elected, I can tell you we ran into many, many obstacles at the 11th hour that we were able to overcome. For instance... COUNCIL MEETIN~ - 38 - • January 14, 2009 Mr. Furfaro: The fact of the matter is, there is history there Scott, but the reality is, this is not the only item on the executive session request. Now the matter has focused around this particular piece and I think you have expressed to us our frustration with what we have heard from the County Attorney and whether we concur with you or not, I think some of us have expressed our concerns about the potential risk. I think for you to have, you know, pinpointed one particular Councilmember and so forth, was, again, you know, totally unfair and perhaps the interpretation of that relationship with the County Attorney. But I think it has been stated that we are dealing with many of the Charter amendments that were on in this executive session piece. I just want to make... I don't necessarily want to relive the history of the Charter amendment because that is not what is on there. What is on there is the potential risk. Mr. Mijares: Councilmember Kawakami asked me why I believed that and I am not saying you per say, but I am saying out of the County Attorney's Office, there were obstacles put up to keep this amendment from being passed in my opinion. Just look at the length of the explanation. It was quite lengthy. Mr. Kawakami: Good point and I just want to clarify that I don't work for the County Attorney, I work for the people. Mr. Mijares: Thank you. Mr. Kawakami: But with that being said, we need to have the latitude to operate to get this thing going because, quite frankly, speaking for myself, I don't know how to implement it and I am not afraid to say that I don't know how we are going to do this thing, but I am willing to move forward, so that we can get this thing going. This is what the people wanted, this is what they voted for, so your comments... Mr. Mijares: So I appreciate your comments wanting to go into executive session, but making sure you represent the people. Thank you. Mr. Kawakami: Sounds good. Chair Ayng: Thank you. Dickie? Mr. Chang: Yes, I have a comment. First off, I would like to thank the members of the public for your testimony. I, too, feel that we have equal heavy hearts because I wish there was a way that we can explain or I could explain that the majority of the people be it 64% are in favor. I think we all want to represent a good, open, changing government, and we want to work as well as we can with the public. I would like to say as anon-Councilmember in the past. I have always wondered why people went into... why the Council went into executive session and when we want to... say we want to make it public for the public, I think COUNCIL MEETING ~ - 39 - • January 14, 2009 if the public realized what actually went on in executive sessions, I think they would be amazed as to so many legal ramifications and things that we need to be concerned with. You know, Mr. Furfaro talked a little bit about legal issues and, yes, we did take an oath, but I do believe that we did take an oath to protect ourselves from any lawsuits that, you know, we may say that is not correct. At this time, not knowing the right answer, I wanted to just clarify that I also do have a very heavy heart because I want to be as public as we can, I want to be as open as we can, but in respect to the County Attorney, I do believe that I will need to support him and his reasoning to take us into executive session and I hope we got a clear understanding, but I can rest assure you while we are in this executive session, I believe all our members of the Council will be very concerned about the ideas what he wants to present back to us. So I am just saying that I do believe that we will be representing all of you from the bottom of our hearts when we get into this executive session and I will support that we do move into this executive session because as Councilman Kawakami said, I think we need to move forward, so we can work for the people. Thank you. Chair Asing: Thank you. The meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: The County Clerk reminded me that... let's have the County Attorney up please? There being no objections, the rules were suspended. Mr. Suzuki: Good morning Council Chair, Darren Suzuki, Acting County Attorney. In addition to ES-369 which we have been discussing, we also do have two (2) additional executive sessions which I would like to read off right now, so that we can go into one session, and avoid having to come out and go back in. ES-370 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a legal briefing on Grant W. Gribble v. County of Kauai, et al., Civil No. 08-1-0231 (Fifth Circuit Court) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item: ES-371 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4) and (8), and Kauai County Charter §3.07(E), the purpose of this executive session is to provide a Council briefing on Gerard R. Bosma, et al. v. James H. Pflueger, et al., Civ. No. 08- 1-0052 (Fifth Circuit Court); Ronald and Gina Calisher v. James H. Pflueger, et al., Civ. No. 07-1-0106 (Fifth Circuit Court); Bruce Fehring, Individually and as Special Administrator of the Estates of Aurora Fehring, et al. v. James H. Pflueger, et al., COUNCIL MEETIN~ - 40 - ~ January 14, 2009 Civ. No. 06-1-0082 (Fifth Circuit Court); and Bette Midler, et al. v. James H. Pflue~'er, et al., Civ. No. 06-1-0110 (Fifth Circuit Court) and related matters. This consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item: Chair Asing: Thank you. With that, I'd like to call the meeting back to order and have a motion to go into executive session. The meeting was called back to order, and proceeded as follows: Mr. Bynum: I just want to make... share my reasoning about the vote that I am about to take and express some concerns. First of all, this Charter amendment is going to be a challenge for the County, the Planning Department, and the Council. Isn't that clear from our discussion so far? I want to say that this... part of the issue and it is important to me when four (4) members of the public that come... that I respect come up here and, say, don't go into executive session and basically say, hey, you know, you can't have this discussion, and it deserves to be in public. I agree... we already are having a discussion in public and we will have many more discussions in public. This really is about, to me, a briefing on legal matters and potential claims. I asked the County Attorney a question that I have asked many times before which is their reassurance because that is my attorney, that it is appropriate for us to go into session for legal matters and potential claims. I have heard that answer before. Mr. Suzuki is the interim County Manager and he didn't make the same assurances and I am not going to fault him for that because I heard that many times and it is on the public record that claims include potential claims. If I hear otherwise or get legal opinions different, I have to rely on the opinions that I get from the County Attorney. Now, but I do have a problem and a lot of the problem here has to do with timing. Okay, we first had an executive session on this matter on July 20, 2008 prior to the election. There was a discussion then about a sense of urgency for us to get a review of all of the Charter amendments and the one that seems to be in the biggest question of the public here to get that done... to get it done expeditiously, so we would have that information prior to the election. We voted, at that time, to get special counsel because our County Attorney said that we needed a special level of expertise and we need to move quickly. I want to say publicly that we never had a briefing prior to the election. We never had a briefing until today. We did hire special counsel, the special counsel I understand is going to be available to us today to give us the briefing that I thought was critical to happen prior to the election. I am very concerned and upset that that briefing didn't occur because having that information prior to the election when we still had an opportunity to take position to even work with the citizens group about the legal appropriateness of the language... did it really settle the intent because I concur with the intent of clearly of the Charter amendment. I got excited about government in the first place about being involved in it because of the General Plan, because of that process where thousands of community members literally expressed their vision and their will for the future of Kauai. I am passionate to this day about that issue because I believe that the COUNCIL MEETING ~ - 41 - ~ January 14, 2009 General Plan largely expresses a vision that many, many people on Kauai share and it is our duty and our responsibility to implement, and I am concerned about the pace of the implementation. I have said all of those things publicly before, but I desperately need to hear that legal ramifications and the work and I just am very saddened and concerned that it didn't occur prior to the election. I wanted to assure the public that I will make sure from (inaudible) that any discussion in executive session focuses on those legal questions and doesn't go into the elements and the areas that you spoke of earlier that should be part of a public and I am sure will be part of a public dialogue. So it is very difficult as a Councilmember who... and I can assure you Rich cares about our reputations in the community, care about what we think, and sometimes to hear that in your passion to hear that, it sounds like an accusation. If you don't do what I say, you don't care about the public. That is hard to hear and it is hard for all of us because I know that everyone here at this table cares passionately about those things. But I understand passion, I understand the sense of urgency here and how strong your feelings are because I think I share those. But this is the beginning of a process that is going to be challenging for all of us and I am going to do my best to be true to the law, to be true to the community, and be true to the intent of the laws as I understand them. So I really wanted the County Attorney do like they have done previously and he kind of did that, and I am not criticizing him. He said we feel strong about the posting. I feel strong about my colleagues integrity and about their willingness to be certain that our discussions in executive session don't go off of the track into areas that need to be discussed publicly. Like Councilmember Kawahara, I want to clearly understand what it is we can share because I think we have been on record as being very... wanting to be as open as possible, and I think that is true of all of us. So this is a difficult and passionate situation and we will have more passion in the future, and I would have liked to have a little stronger assurances about going into executive session. I want to say that, you know, I understand, I think, to the best of my ability what is appropriate for us to discuss in executive session and what isn't. I want the public to also understand that even though... I think the public does understand and excuse the lengthiness of this comment, but I think the public does understand that we were elected to represent the County of Kauai to be your representative... we (inaudible) representative democracy and that sometimes you need to talk to your attorney in private. You know, and not have that broadcast in a way that puts us at a disadvantage. I have been very diligent and I know that other members are about trying to do the best of finding that balance in that line. But I need to have this briefing and I need most of that briefing information to be brought to the public the best that we can humanely possibly can do. So reluctantly, in this instance, I probably will vote to go into executive session, but I really needed to make that comment because we are doing the best we can. Chair Asing: Councilmember Kaneshiro? COUNCIL MEETIN~ - 42 - ~ January 14, 2009 Mr. Kaneshiro: Thank you Mr. Chair. For me, this is quite a simple matter. We had a request C 2009-46 for $100,000. The County Attorney requested $100,000 from us, so what is this executive session for? To brief us on some of the compliance we need to meet with the legal requirement of drafting the ordinance and rules of the Charter amendments. Simple, so there are some legal requirements, so in order for us to come back and move and make your... appropriate $100,000 that is what they are requesting is for, then we need to go into executive session because I think, for us, if we don't comply with the amendments and meet some of the legal requirements, we will all be hot potatoes including everyone of you that testified today. So I think it is a simple matter. It goes back to us... do we really need the $100,000 and what we need the $100,000 for and, basically, their request was to draft or comply with the legal requirements, and, you know, to follow the Charter amendments. So, for me, I am ready to vote and move into executive session, so we can proceed for the people's will what they wanted for us to do. Chair Asing: Thank you. Any other comments? Councilmember Kawahara? Ms. Kawahara: Chair Asing, could we take the votes on ES-370, ES- 371 together, and separate out ES-369, but just vote separately? Chair Asing: We can do anything you want to do. I don't see any problem though on taking the whole thing. I mean do you have a problem with going into executive session for these three (3) items? Ms. Kawahara: I have reservations about one of the items, yes. Chair Asing: So you don't want to go into executive session on one of the items? We will take that first then. Ms. Kawahara: Uh huh. Chair Asing: Go ahead. What item is that? Ms. Kawahara: Could I have a recess? Chair Asing: Recess. We will have a short recess. There being no objections, the Chair called for a recess at 3:06 p.m. The meeting was called back to order at 3:16 p.m., and proceeded as follows: Chair Asing: Can we have a motion to move into executive session? COUNCIL MEETING ~ - 43 - ~ January 14, 2009 Mr. Kaneshiro moved to go into executive session on ES-369, ES-370, and ES-371, seconded by Mr. Furfaro. Chair Asing: Any discussion? Ms. Kawahara: I have. Chair Asing: Yes, go ahead. Ms. Kawahara: I just wanted to say that I appreciate all the Councilmembers being willing to talk to me and answer my concerns. I have listened to the people here and I understand their concerns. I also want to assure the Councilmembers, though, that I personally have a concern too in doing my duties. I realize that I represent both the County and to the defend the County, and to make sure that we are responsible with funds and our duties. I also understand that I was elected by the public and I have responsibilities to them. I have worn different hats as a professional and I understand that. My issue is I just feel that we have not done enough to get to the place where we as County officials work a little bit harder to get a little bit closer to a balance to what the public needs to know. What I am going to do is, I am probably going to vote "yes" to go into executive session on this, but with the intention that these... this particular type of executive session has more explanation than what it is here. If that requires working with the County Attorney and I will figure out how to do that. But more of an explanation, so there isn't what I feel not enough information for the public to trust us. So I am going to ask that the public trust us and that they elected us based on their belief that we have good judgment, and that we are going to do the best for Kauai that we can. I am positive that all of us are wanting to do the best we can and we need this information to do that. We also... in order to enact this amendment and we want to do quickly, but we want to do it legal and the best way possible, so that is what I want to .say. Thank you. Chair Asing: Thank you. Any other comments? Go ahead. Mr. Furfaro: I appreciate Councilwoman's commentary. I also want to highlight that we have had some dialogue that gave us a glimpse into some of the potential risk, but at the end of the day, I think Councilman Kaneshiro summed it up. The fact of the matter is this is also a funding issue that poses, you know, a legal draft interpretations of this bill, so I will be supporting the executive session. Chair Asing: Than you. Any further discussion? If not, all those in favor say aye. The motion to go into executive session on ES-369, ES-370, and ES-371 was then put, and unanimously carried. COUNCIL MEETIN ~ - 44 - ~ Janua 14 2009 x'Y There being no objections, the Chair called for a recess at 3:20 p.m. The meeting was called back to order at 6:19 p.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, I believe we are going to go to page 4 and take C 2009-46 and start from that area, am I correct? Mr. Nakamura: Correct. We are back on page 4 of the Council's agenda for approval. C 2009-46 Request (12/29/2008) from the Office of the County Attorney for authorization to expend additional funds up to $100,000 for special counsel regarding charter amendments and other related matters, including but not limited to, compliance with legal requirements and/or drafting of ordinances and/or rules: Mr. Furfaro moved to approve C 2009-46, seconded by Mr. Chang. Chair Asing: Yes, go ahead Tim. Mr. Bynum: Just real briefly that this approval from my perspective is to complete outstanding obligations with the recognition that we may need to come back and have further authorization for further funding beyond us in the future for ongoing issues related to this matter. The motion to approve C 2009-46 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval is communication C 2009-47. C 2009-47 Request (12/29/2008) from the Office of the County Attorney for authorization to expend funds up to $50,000 to retain special counsel to represent County of Kauai in Grant W. Gribble v. County of Kauai, et al., Civil No. 08-1-0231 (Fifth Circuit Court) and related matters: Mr. Furfaro moved to approve C 2009-47, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On communication C 2009-48. C 2009-48 Request (12/29/2008) from the Office of the County Attorney for authorization to expend up to $100,000 from the special counsel account to continue to retain outside counsel to represent the County in Gerard R. Bosma, et al. v. James H. Pflueger, et al., Civ. 08-1-0052 (Fifth Circuit Court); Ronald and Gina Calisher v. James H. Pflueger, et al., Civ. 07-1-0106 (Fifth Circuit Court); Bruce Fehring, Individually And As Special Administrator of the Estates of Aurora Fehring, et al. v. James H. Pflueger, et al., Civ. No. 06-1-0082 (Fifth Circuit Court); COUNCIL MEETING ~ - 45 - ~ January 14, 2009 and Bette Midler, et al. v. James H. Pflueger, et al., Civ. No. 06-1-0110 (Fifth Circuit Court) and related matters: Mr. Bynum moved to approve C 2009-48, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? I was just advised that we need to take a dinner break at 6:30 p.m., and we still have two (2) more bills to take care of, and I believe we have an amendment on the bill. Mr. Nakamura: We have an amendment on both bills actually... amendments for both bills. Chair Asing: I don't believe we can finish in time, so I think we need to take the dinner break. Mr. Furfaro: So you want to break until ten to seven? Chair Asing: Yes. Mr. Furfaro: I move that we recess for a half an hour dinner break? Chair Asing: No. Mr. Furfaro: 45 minutes, so 15 past 7? Chair Asing: Okay, thank you. We will take the dinner break. There being no objections, the Chair called for a recess at 6:25 p.m. The meeting was called back to order at 7:19 p.m., and proceeded as follows: Chair Asing: Can we have the next item please? Mr. Nakamura: We are on page 6 of the Council's agenda on a bill for first reading. Proposed Draft Bill No. 2298 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE AND SINGLE-FAMILY TRANSIENT VACATION RENTALS: Chair Asing: Before I take a motion, what I would like to do is have some have comments. I'd like to open it up to the public first. Is there anyone who wants to speak on this item? There being no objections, the rules were suspended. Chair Asing: With that, former Councilmember Rapozo. COUNCIL MEETIN • - 46 - ~ January 14, 2009 MEL RAPOZO: Thank you Mr. Chair. Mel Rapozo for the record and let me apologize to Councilmember... of course Mr. Chair in advance, Mr. Furfaro and Mr. Bynum because you have heard this before. When we passed the bill originally in the last term, I think you've all heard this argument, so this is really intended for the new Councilmembers as well as Councilmember Kaneshiro who was not present when we went through the discussion. I think my biggest concern in this bill and the reason that I would ask that you receive this bill before even sending it to the Planning Department because I think it facilitates the permitting of some unpermitted uses on ag land. Again, for the sake of the Councilmembers who weren't here in the last discussions, I just would like to focus everyone to Chapter 205 of the H.R.S. because I think that is where we need to start. Before we start considering amending the law, take a look at Chapter 205 and I realize that I have a very short time, so I will go through this real quickly. Chapter 205 is the key. That is really where we need to look. If you look at Chapter 205-2 where it says specifically that... it states the permitted uses, both 205-2 and 205-4.5 states the permitted uses on ag land. Nowhere in those sections are you going to find vacation rentals or overnight accommodations. It is just not there. Also, in 205-4.5 subsection (b), it clearly states that any use not expressly permitted is prohibited. So unlike the Kobayashi opinion that we keep talking about, this one is clear. If it is not specifically expressed as a permitted use, it is prohibited, so if you look at 205-2, 205-4.5, it is quite clear that vacation rentals are not allowed. There is also some more sections 205-5 which talks about the zoning itself and 205-8... I am only going to give you guys the numbers because I obviously don't have the time. But in 205-8 which is the section on non-conforming use which is what this bill tries to do, is to allow this non-conforming uses to occur. It is clear that... and let me just read that. It says that any non-conforming use of land or buildings... this is pre-1976 cannot be replaced, reconstructed, or enlarged, or changed to another non-conforming use. I mean it is clear that the intent of the law back in 1976 was to allow the structures that were there in 1976 prior to the law being passed to continue, but not to allow those homes to be rebuilt, reconstructed, expanded, or change the use. They wanted to preserve ag lands and I think that is what this whole issue was. That is quite clear. Back in '97(?) when we visited this, I think it was a consensus of the Council at the time that 1976 was going to be the time that the bill would... anything before 1976 would be so-called grandfathered in. Anything after that couldn't be simply because that is the State law and I think that State law is not in dispute. I think it is pretty clear. In fact, if in fact you had a vacation rental on ag land after 1976, it would not be allowed. Okay, I guess I will come back. Chair Asing: Why don't you finish. Mr. Rapozo: Let me just wrap up real quick. The... in 2007, Councilmember Yukimura submitted a question to Tony Ching who was the Land Use Executive Officer from the Land Use Commission. He was the boss of the Land COUNCIL MEETING ~ - 47 - ~ January 14, 2009 Use Commission... her question was, are vacation rentals allowed in the State Land Use Agricultural District. This is to the Executive Officer of the Land Use Commission. His response... and he is quoted. My response to your question is that Chapter 205 H.R.S. clearly prohibits overnight accommodations such as offered by vacation rentals in the SLU, the State Land Use Agricultural District. That is from the head man of the Land Use Commission, so there is no dispute what the law says and what the enforcement agency which is the Land Use Commission at the State level intended. It is here and what bothers me is that this was addressed to Councilmember Yukimura. The same person that authored the amendment that is before you today. So let me just close by saying this. There is no dispute that it is an unpermitted activity or an illegal activity because the language in the amendment clearly states that this Council is considering allowing these unpermitted uses to continue without enforcement. This bill calls it an enforcement agreement and I call it anon-enforcement because you are agreeing to not enforce the law which means you are agreeing that this unpermitted activity can continue. So I will just close with these three (3) questions. Again, these are intended for the new Councilmembers and Mr. Kaneshiro who wasn't here at the time. These are the three (3) questions that I have. Number 1: What authority does this County have to enter into non- enforcement agreements in laws that conflict with the State? What authority does this County have? Number 2: What is to stop the Police Department, the Prosecutor's Office, or the Attorney General from enforcing Chapter 205? In other words, this County could pass this bill today, someone in the community could make a complaint to the Attorney General's Office about an illegal activity on ag land... that non- enforcement agreement carries no weight with any other agency. But the Planning Department. So the Attorney General could come down and enforce the law and the County simply doesn't have that ability or authority to circumvent the State law. And the final question is we are acknowledging that vacation rentals on ag land are not permitted and some of you may feel differently, but if you think it is legal, then you don't need to enter into anon-enforcement agreement. If you feel that a vacation rental on ag land is legal, there is no need to enter into agreement between the owner and the Planning Department. Obviously, we feel it is in violation of State law, so we need to complete this non-enforcement agreement, so that these owners and operators can continue the unpermitted activity without fear of being prosecuted. So those are the questions that I have and I obviously don't expect an answer here tonight, but these are more for the new members of the Council that before you rush to go decide on something like this, I think you deserve to have some legal explanations as far as what your rights are. And not just by the County Attorney, but by the Attorney General who simply is the body that takes care of the H.R.S. I would ask that you consider that... this bill should not go to the Planning Commission because as I see it, it is this body saying we agree that we should allow COUNCIL MEETIN~ - 48 - ~ January 14, 2009 this unpermitted activity, and we are going to move this bill forward. I would recommend that you receive it tonight until you get a clarification from the Attorney General that, in fact, vacation rentals are allowed on State ag land. That is all that I have. Thank you. Chair Asing: Thank you. Councilmembers, any questions? Ms. Kawahara: I had a question. In the ag land policies, I understand that both the State and the County, they overlap on ag land with their... when they make laws, is that correct? Is there an overlap there? Mr. Rapozo: Depending what you mean by overlap. I mean the State Land Use Commission applies their designation on land and it will be ag and then the County does it as well. But as far as overlap, as far as the laws are concerned, I don't know... there is no real overlap with the law. This 205 governs ag land, State designated ag land. Ms. Kawahara: Okay. That is all. Thank you. Chair Asing: Okay, any other questions Councilmembers? If not, thank you. Mr. Rapozo: And thank you Mr. Chair for allowing me to go beyond the three (3) minutes. Chair Asing: Thank you. Mr. Furfaro: You actually would be on the six (6) though. Mr. Pleas: Good evening, Bruce Pleas for the record. I have been involved in the transient vacation rental bill from pretty much the beginning. It started at the Ka Leo meetings and we went out there, formed a stakeholders group, attended many meetings, and went through this whole process. During the stakeholder group and the many meetings that we had, what we found out was on State zoned ag lands, the H.R.S. 250 was the guiding law and in that guiding law was that... as you heard from Tony Ching and all the information that we received during it, that transient vacation rentals on State ag land were illegal and not allowed. So during the stakeholder group, we discussed that at length with... at many times, had many people come in from all sorts of areas and we did not include that in the transient vacation rental bill for ag lands because it was already decided by the State that they were illegal, and there was no need for a County ordinance on that. So that is basically why it was not in here to begin with and why I think now it is an illegal activity to try to make them legal. The County should not even attempt. It is already dictated by the State on State on ag lands which... ag zoned lands and if you need any information on the stakeholder's group, I believe it is still on the County web page. There is Louie Abrams, Barbara Robeson got the first... COUNCIL MEETING • - 49 - • January 14, 2009 along with Eric... the first really lot of information there available. I think there is a lot available there. I have two (2) stacks of paper like this and over a thousand e- mails that are saved from that. So I would agree with Mel that the proper action for this that I see is to receive this bill. If you decide not to receive it, please defer it until you get information from the State on whether ag lands... you can have transient vacation rentals on ag lands before it goes any farther. I think the Planning Commission doesn't need to see this. They have a full schedule as it is and doesn't need to go any farther. Thank you. Chair Asing: Thank you. Any questions for Bruce? If not, thank you Bruce. What I would like to do is call the meeting back to order now and what I would like to do is turn the meeting over to Vice Chair Furfaro and I am going to do a short presentation. The meeting was called back to order, and proceeded as follows: Mr. Furfaro: I am going to relocate myself across the way, so that I can run the meeting while the Chairman has his presentation. Mr. Asing, the floor is yours. We have Councilmember Chang in the audience as well as Councilmember Kawakami. Chair Asing: Okay, thank you. ~ I'd like to make a short presentation. I will try to make it as short as possible. With that, I have some concerns about this bill and the concerns that I have is regarding the legality of the bill. I believe the bill is contrary to the State law, namely 205, and because of that, I am not sure why the County is trying to pass a law that is contrary to State law. With that, what I would like to do is kind of read this... This is the communication by Councilmember Furfaro placing this item on the agenda and I have problems with this because the information here... as you know in the last nine (9) months of Ordinance No. 864 regulating single family vacation rentals was signed into law by Mayor Bryan Baptiste on March 7, 2008. The financial system of our County has been thrown into a major (inaudible) with far reaching consequences and our hard hit visitor industry in Hawaii. In a recent briefing of the Kauai County Council, the Kauai Visitors Bureau Executive Director Sue Kanoho said that the Kauai Visitors Bureau and the Hawaii Tourism Authority are now focusing on visitors who can come to Kauai as opposed to those who want to come. To address this situation, I am recommending consideration of the attached bill prepared by former Planning Committee Chair JoAnn Yukimura to address the issue of vacation rentals on ag lands. It reinstates the provision proposing Ordinance 864 from becoming law. It will allow enforcement agreements that would allow vacation rentals on ag lands and continue to operate where it can be proved that they were in existence and legal operations prior to the enactment of Ordinance 864 except for State requirements for farm dwellings. Now, I want you to look at this... I want you to look at the underlined portion that is in red... legal operation prior to enactment of Ordinance COUNCIL MEETIN~ - 50 - ~ January 14, 2009 864 except for State requirements for farm dwellings. What is it telling you? It is telling you that the second portion except for State requirements for farm dwellings is not allowed. Vacation rentals is not allowed and this is what this is telling you. And we are saying, we know it is not allowed, but we are disregarding that and we are going to allow it even though the State law says that you cannot do it. And this bothers me because there is a... this is, to me, a moral question. Amoral question in the sense that when I read to you in the first paragraph, the economy is bad. We are having a bad time, so if we are having a bad time, we do something illegal to help us. What kind of moral standards are we setting? Mr. Furfaro: Are you directing that question at me Mr. Asing? Chair Asing: No, I am not. Mr. Furfaro: Because I will respond to that. Chair Asing: Yes, so I think it is a moral question because we know it is wrong, we know it is illegal, but we are going to do it anyway, and that is the message that I read from here. Take the next item please. Now when I say illegal, what background and information do I have? This is Hawaii Revised Statutes, Chapter 205. Let's look at 205. 205-4.5, permissible uses within ag districts, and look at item 4. Farm dwellings... employee housing, farm dwellings, or activities or uses related to farming and animal husbandry... farm dwelling as used in this paragraph means a single family dwelling located on and used in connection with a farm... including clusters of single family farm dwelling permitted within agricultural parks developed by the State or where agricultural activity provides income to the family occupying the building, the dwelling. In the vacation rental, it does not provide income to those who occupy the dwelling, therefore, it is an illegal activity. Now, on 205-4.5, item 13... in this particular area here, let me go back up to 205-4.5 first. If you look at that area, that area relates to productivity rating class A and B, so you are talking about A and B lands here, and that is item 4. Now, on item 13, agricultural tourism conducted on a working farm or a farming operation as defined in 165-2 for the enjoyment, education, or involvement of visitors. Now, what you will find is in red, maybe I should read the whole thing. Provided that an agricultural tourism activity is accessory and secondary to the principle agricultural use and does not interfere with the surrounding farm operations and provided further that this paragraph shall apply only to a County that has adopted ordinances regulating agricultural tourism under Section 205-5. Did this County do that? No. So it does not even qualify because this County did not do that. Now we turn to permissible uses within the ag districts... within the ag districts, all lands with soil classified by the land study (inaudible)... detail land COUNCIL MEETING • - 51 - • January 14, 2009 classification as overall master productivity rating class C, D, E, or U, shall be restricted to uses permitted for ag districts as set forth in Section 205-5(b). Now, I covered the illegality of the A and B lands. I am now covering the illegality of also on the C, D, E, and U lands. Okay, next slide. Okay, this is going further on the ag tourism... look at the bottom left side, do you see the word ag tourism? Now, I said that this County did not pass ordinances on ag tourism, so they don't qualify anyway. But if you did... let's say that we did do this, then if you read the bottom portion... ordinances shall include, but not limited to. What do we have here? You have item 1, item 2, item 3, item 4, and item 5. Read item 2. Requirements and restrictions for accessory facilities connected with farming operation including gift shops and restaurants. What does the red portion say? Provided that overnight accommodations shall not be permitted. Mr. Furfaro: Mr. Asing, I just want to reconfirm that language in red was not passed until 2006, so obviously the State felt prior to 2006, they did not have a way to defend overnight accommodations. Chair Asing: I don't believe that. I mean that is your interpretation. Mr. Furfaro: We agree to disagree on this one then. Chair Asing: And that is fine, but I am saying that it does not. Now, let me do this. Do you want to do the next slide? We go now to a letter that was sent from... as mentioned by former Councilmember Rapozo... Anthony Ching... Anthony Ching is the Executive Director who was the Executive Director of the State Land Use Commission and it is a memo from Mr. Ching to Councilmember Yukimura. In this letter here, let me just read it. Per your question, are vacation rentals allowed in the State Land Use Ag District? Simple, straight, plain language... vacation rentals allowed on State Land Use Ag District. Look at what it says here. Requirements and restrictions for accessory facilities connected with farm operation including gift shops and restaurants provided that overnight accommodation shall not be permitted. Overnight accommodation shall not be permitted. Then this is his response. My response to your question is that Chapter 205 H.R.S. clearly prohibits overnight accommodation such as offered by vacation rentals in the State Land Use Agricultural District. How much plainer can you get on it is not allowed and this is from the State Land Use Executive Director dated June 27, 2007. So I don't think that you can get clearer than this. Now, also when Mr. Ching sent this memo, the memo reads on the bottom portion here. Please also find my letter to the Kauai Planning Commission with discussion which discusses logical definitions for bona fide agricultural activities farming operations. This is that memo that he is making reference to and this memo happens to be to Mr. Costa who had some questions on the Seacliff area which is in the ag district and... Now, in this letter, what Mr. Ching is doing is he makes this report here and item 2 in the report... farm dwellings and farm buildings are permitted uses in the COUNCIL MEETIN~ - 52 - • January 14, 2009 State Land Use District. Farm dwelling means a single family dwelling located on and used in connection with a farm or where agricultural activity provides income to the family occupying the dwelling. He notes, emphasis added. Income to the family occupying the building. Again, it is... it can't be clearer than this that it is not allowed in Chapter 205 which is the controlling document of State Land Use. Thank you. Mr. Furfaro: Mr. Asing, let me see if there are any questions? Members, I would like to ask before I give the floor back to Mr. Asing. If any of you have any questions on his presentation? If not, the floor is yours. Chair Asing: Thank you. Let me just kind of just summarize. I don't think there is any question on whether it is legal or illegal. It is straightforward and you have the State law that does not allow you vacation rental. You have the memo from the State Land Use Commission Executive Director giving you two (2) distinct reasons why it is not allowed. I have some difficulty in, how can we pass something that is contrary to State law? So we are saying, we will do it anyway and what we are doing is we are telling the Planning Director to not enforce this violation. We acknowledge there is a violation, but we are saying, do not enforce the violation because we have this agreement that we are trying to do, and I just really have difficulty with that, and that is my reasoning for having a difficult time with this item. So with that, any other discussion? Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. I understand your presentation on what you are trying to show as a specific relationship to ag lands, but I did some research and found that in 2006, June 28, 2006 was really when the Legislature put in that language that no overnight accommodations to take place. So I believe that, you know, if that was the real issue prior to that, that language should have been... would have been inserted into the Hawaii Revised Statutes under ag lands, but I believe up to 2006, the Legislature finally put that language into it. So, for me, you know, I can move with something like this with the wording that anything after 2006, I would say, if it is there and they are asking for transient vacation rentals would be illegal to me. Because, specifically, the Legislature passed that in 2006 on June 29, so for my side, I just wanted to... Chair Asing: And let me ask this. How, then, would you contest the farm dwelling activity that is illegal? I mean that is also illegal. I mean, there are two (2) reasons given in the State Statute on illegality and one of the reasons is the farm dwelling, and the farm dwelling... if you look at the statute, it makes the argument that there is no overnight accommodations or there must be income to the family that is occupying the dwelling, so you are going to argue... you can't argue with that. I mean it is black and white. Mr. Kaneshiro: You know, everybody interprets it in their matter. Do you know what I am saying? I am interpreting what I read specifically under COUNCIL MEETING • - 53 - • January 14, 2009 how the laws are set. When the State Legislature specifically inserts a language like this, that is the law because it is clear in here that anything after 2006, you are not allowed to do that. No overnight accommodations... it specifically states that. So there could be some debate about whether previous to that, you know, means that any vacation rentals or not. I am not sure. I am not (inaudible)... and I wanted to reflect back to the LUC letter. Specifically, the LUC letter also pointed back to this section which, again, was passed in 2006. The question wasn't asked if previous to this legislative enactment on June 29, was it illegal? So, you know, what I observed. I am just saying... this is just to get into discussion and it is not about... and we want to write a law, we want to do something that is right. To me, I feel that, specifically, because how and where the June 29, 2006 Legislature did put that into that section, it is clear. Provided that no overnight accommodations shall not be permitted. I have that right in front of me. Chair Asing: Then let me do this. How are you going to dispel the farm dwelling? Farm dwelling provides income to the family occupying the dwelling. Vacation rentals does not provide income to the family occupying the dwelling, the rental, they don't get any income. So it is plain and this relates to A and B lands. What you are talking about, you are talking about the lands that were rated C, D, E, and U, and that is the reference that you make reference to. So there are two (2) portions in there that you need to look at. Mr. Kaneshiro: And the problem is, we haven't had any of these lands ready. Chair Asing: No, the lands are all ready. Mr. Kaneshiro: You know, the important ag lands... are you talking about the important ag lands? Chair Asing: No, we are talking about the land study bureau's classification. That is old and that has been there for a long time. Mr. Kaneshiro: I thought we were talking about the important ag land classification. Chair Asing: With that, Councilmember Furfaro? Mr. Furfaro: And I believe Mr. Asing was mentioning the previous classified A, B, C, D, E, and U. They do exist. First of all, I wanted to thank you for pointing out the fact that I am, by courtesy, introducing this, but my position has never changed. Chair Asing: Yes. , COUNCIL MEETIN~ - 54 - • January 14, 2009 Mr. Furfaro: And I thought that was a very strong statement about moral obligation. The fact of the matter is, in today's economic position, I think this Council should realize and realize rather quickly, the moral obligation we have to people to have income, enjoy life, run a business. The fact of the matter is that I am more than glad to reintroduce this based on the fact that I think the pieces are all premature. I think Councilmember Kaneshiro reinforced what I asked across the table about, what was the rational of the 2006 legislation if they didn't feel at that time and place, they needed to make a policy statement. Important ag lands... when the State gave all the counties combined $75,000 for the purpose of the identifying important ag lands that probably will fall in with a lot of the A and B lands by classification. But it is very premature to wonder what happens with the other pieces. What kind of rating do they get? What kind of classification do they get and, in fact, in today's market place, statewide in rentals, there was almost $29 million reported as found rental during a very important economic weakness. I would also like to point to the General Plan which required us to regulate vacation rentals and bed and breakfast and this is six (6) years prior to... before that legislation came through, but this non-conforming use permit is basically saying that until we get to a point that our important ag lands are identified, right? The fact of the matter is we should be asking the questions in advance. What do we do with those lands that don't get that classification? Are we and, quite frankly, is the Planning Department aware of creating some policies that comply to law about how we manage and regulate these. I just wanted to point out that, you know, this is not about opening the door again. This is about prior to those that met the criteria that were identified and I thank Mr. Pleas reviewing the stakeholder's group, but we did that a week ago on other portions of the vacation rental bill. So the question was asked to me, would I have the courtesy to continue to introduce this. I would also like to point out that the letter that was reflected on the board of March 28, at the time, was a draft letter that I had put together anticipating that we would have had a December date to discuss this particular thing. But in a separate correspondence, it was pushed back to January at the request of the Council Chair because we needed to do the particular audit piece. Clearly on November 28, Councilwoman Yukimura was still a member of this Council, but that was not circulated other than between the introducer and the requestor of this bill at that time. But, clearly, you know, we are looking at transient vacation rental income to the State of Hawaii being down 16%. We are looking at our hotels running less than 40% occupancy, but we have other people that want to be visitors on this island that, quite frankly, booked destinations based on the kind of accommodations they are used to. And this cottage business is not unusual in places like France, Italy, and Germany. In fact, it does provide a subsidy to encourage people to continue farm activity. So there is a lot of pieces there, but I did not see it as a moral question on my part. I certainly saw it and felt that that was somewhat personal, but I felt that there are certainly considerations that I pointed out here. Where are we on the important ag lands? What happens to those other parcels? Are we going to come up with a policy of managing this cottage COUNCIL MEETING • - 55 - • January 14, 2009 industry? Is that a question for the Planning Department? What specifically did the General Plan say in 2000? What specifically did the State say in 2006? So there is a lot of loose ends and I felt this piece had merit to be referred to the Planning Commission. Thank you. Chair Asing: Let me just add Councilmember Furfaro. While I agree and the reason I say moral question. For me, it is a moral question because my feel is don't do it because times are bad even if it is against the law and that is where I am coming from. Mr. Furfaro: I understand. That is your interpretation. It is against the law, but we have bed and breakfast operations both on ag land as vacation rentals and so forth in other counties. They have come up with a plan, so, again, for me, the question was, in these economic times... if everybody in this room and everybody on this table thinks that the economic hardships are for the next 12 months or so, I am telling you that even President-Elect Obama said that it will take him two (2) terms to fix the economic crisis that is in this country. That is all I was supporting the fact of the matter is that I am not sure we could walk away from this piece of business given the climate and the testimony from the Visitors Bureau about them targeting certain market segments. Mr. Bynum: Are we in discussion prior to a vote or... Chair Asing: No, we are in discussion now. Mr. Furfaro: Our meeting is back to order and we are in discussion. Mr. Bynum: The first thing that I would like to say is that is a bill for first reading and I was taught here that, routinely, bills for first reading get moved and it is a housekeeping item because we are going to do the real work in Committee. This seems a lot like Committee work right now and generally... Mr. Furfaro: Mr. Bynum, because it is zoning, it has to go to the Planning Commission. Mr. Bynum: I understand that, but it will end up... the laws aren't going to change unless it comes back to the County Council. So I didn't come here prepared to have a debate about this tonight because I thought that we would go through the normal process. But having said that, this is also a lot of dejavu because we spent a better part of a year discussing all of those issues when we passed 864 in the first place. You know, it sounds so clear when you put words up on the screen, but I think we all here know that the issues are much more complex than that. The reality of agricultural land on Kauai and throughout the State is that it is the biggest morass of confusion and misconstrued ideas that you would find anywhere. In my opinion, our obligation whether you call it moral or not, to try COUNCIL MEETIN~ - 56 - • January 14, 2009 to bring some clarity to that. We have a number of ways by which this Council has in the past and in the future, we will try to bring that clarity. But the way this is interpreted, varies in each County, with each person you speak to, with each... and that is why it is important to bring clarity. For instance, Maui just passed a B&B bill that allows bed and breakfast on ag land. They just passed it, so that wouldn't be consistent with the position that you have taken. In regards to the language that seemed so clear and overnight accommodations... not only was that in 2006 which is relatively recent, but I believe it is part of an ag tourism bill that... as the Chair indicated, we would have to pass an ag tourism bill for that section to apply. So I don't think we have done that. I am particularly concerned about the discussion regarding farm dwellings. Okay, we have had lengthy discussion here at Council regarding farm dwellings. There are literally thousands of people on Kauai, literally tens of thousands probably in the State of Hawaii, that live on agricultural land and housing labeled a farm dwelling. Very few of them are engaged in farming subsistence or income or otherwise. I live on an ag lot and I "farm dwelling" and you go through my neighborhood and there is a plumber and tiler and a doctor and an engineer, right? None of whom are involved in farming, so if we applied this standard, Mr. Chair, we would have to ask all those people to either start engage in subsistence farming or to move out of their homes. We all know that what happens on ag and the rules around ag are not clear, are not used properly, and desperately need clarity. So we have brought issues tonight and my position has been the same since before I was on Council and the entire time we discussed this. Until we bring that clarity, we passed a law and nobody is suggesting that we change that. As of March of last year, no new farm... no new transient vacation rentals will be created in any district outside of the VDA. We drew that line, nobody is looking to change that, but anybody who is engaged in transient vacation rentals prior to that, that had ordered their economic reality in their life around that clearly status quo. I believe it would be immoral to penalize those people and cause... I wasn't going to bring up the word moral, but it got brought up... I think it would be an injustice to those people when we have never enforced these laws. If it has been illegal on ag land since 1972, why didn't anybody enforce it. The State didn't enforce it, the County didn't enforce it, so I am very comfortable with the position that says, from March of last year on, no new vacation rentals. Finally, we brought some clarity to that portion of it including on ag land, but prior to that time, how can we grandfather some people and not others based on a standard which clearly is not defined and there are a varieties of opinions. I will just use one example and I will close because we will probably be debating this for months. If you drive down to `Anini Beach... we are all familiar with `Anini Beach... the houses on the right hand side, the makai side of the road are in urban zoning, so there are a lot of vacation rentals there and we are going to allow those to continue. The properties and the lots on the mauka side of the road are in ag designation. Now do we see that as agricultural land that we would expect ag? But those folks, they have to stop even though many of those properties have been vacation rentals COUNCIL MEETING • - 57 - • January 14, 2009 for many years. Some of them kama`aina families who... the way to keep their property is to make sure that they make enough income to... so it can still be their family beach home and their residence and vacation home. That is just one example where there is no logic to this. The right side is okay, the left side is not okay. You know, because ag also... what we call ag, you know, we all know that if you look on the zoning map, we are very thoughtful about what was urban zoned, but ag was the catch all. Ag is where we put things that didn't fit in other categories. I am passionate about this issue because of fairness and I am passionate of it because of I think our responsibility to bring clarity to this morass, and we have started that. This vacation rental law is part of bringing clarity, but clarity with fairness. Chair Asing: Thank you. I guess I disagree with your statement about clarity. I don't know how you can be more clear than what I showed. I mean, 205 just says it plain and straight out that it is illegal to do vacation rental and to even get that from the State Land Use Executive Director saying that. You know, you are not talking about somebody that is, you know, a fly by night, you are talking about the Executive Director of the State Land Use Commission who is making that statement. So, with that, any further discussion? If not, go ahead. Mr. Kawakami: This is a tough issue to deal with about a month and a half into our election... being elected, but, you know, for me, I did some homework on this too and it is clear in State law... it says that it is not a permitted use. For me, when we talk about fairness, I would like to take into consideration everybody that has had ag land from 1976 to 2006 that perhaps interpret the law that, you know, that this kind of accommodation was illegal and decided to follow the law. Now, in effect, it would be... I guess because we would be grandfathering people in, we would be excluding them from the opportunity to partake in this kind of use. So, for me, I am not going to support this as of yet and it is just going and trying to be very diplomatic and looking at what Mr. Ching has written to the Council, the previous Council. It has everything to do with State law, but my reasoning also goes that I think a lot has changed since 1976 as far as ag. I mean, I was even born in 1976, but I do know that we did have a sugar industry and a lot has changed. The face of agriculture has changed tremendously, so I think if our vision for ag land is to allow this type of tourism, I feel that the discussion should be presented to our State Representatives to maybe, perhaps, enact a law that would allow that, and see where we get from there. But taking everything step by step as I understand it, I think that would be a more appropriate approach is to have State law changed if we feel that is our vision for Kauai. For me, it is clear here where I stand on the issue. So thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? Councilmember Furfaro? Mr. Furfaro: Yes, Mr. Chair, again, I just want to reiterate, you know, this potential of the non-conforming use, I want to make sure that we all understand, as the bill is written, it is written until such time that the important ag COUNCIL MEETIN~ - 58 - • January 14, 2009 lands are clearly identified, these permits expire. Secondly, I am want to make sure that the reason I also agreed by request to introduce this is I do believe very strongly that we are at a point that the Planning Department should make some regulations about the opportunities to do this because the question still lingers, what do we do with those lands that do not get qualified as important ag lands. Thirdly, as I said earlier, you know, I am very concerned about the unintended impacts of the travel industry right now and excluding potentially some inventory that might actually help us stabilize our visitor industry numbers. If you looked at what was reported yesterday, Kauai had the biggest drop in occupancy of the four (4) counties. Thank you. Chair Asing: Thank you. Let me make just one more comment first and I will recognize Councilmember Kaneshiro. In 2003, on the Big Island of Hawaii, the Hokulia project, Judge Ibara ordered all work stop shutting down the entire project. Ibara ruled Hokulia was actually an urban type luxury home development, not a viable farming project. Therefore, was an illegal use of lands earmarked by the State for agriculture. In his comment, Judge Ibara says, follow the law, change the zoning if you want to allow it. And if you want to make it clear, change the zoning, but don't go try to not enforce a law that is there, change the zoning. I don't have any problem if you decide to make an effort to change the zoning and then now it is allowable, but it is not allowable on the ag, and this is what Judge Ibara said in 2003. You know, this went all the way to the Supreme Court and they finally ended up with... instead of the Supreme Court making the decision, both sides worked it out. But, you know, it is exactly the same thing. So, with that, go ahead Councilmember Bynum? Mr. Kaneshiro: Thank you Mr. Chair. For me, I think it is important that we move this on to the Planning Commission and perhaps within the period of time, we will be able to get some other legal opinions. I think if we just receive the bill tonight, we are not given the opportunity to be really definite that we... and have a definite opinion as some of the letters related to. There should be more specific questions asked that prior to 2006, before the Legislature enacted that, you know, that (inaudible) no overnight lodges and so forth. So there are a lot of things that we are not really clear about, but I can honestly tell you, you know, the farmers on Kauai today are starving. They are all starving and to keep putting on laws or making laws that prohibited the farmers to try to make a living. You know, I don't believe personally that is to the best interest of the community or to the people of Kauai. We are the ones that brings the food to the table. We are the ones that you survive on... everyday you wake up, you have to have breakfast, kids have to have milk, you know, and it happens. Let me tell you from my experience by being a true farmer, we really take care of the land. We are the stewards of the land. There is nobody else that takes care of the land like the farmers do and I realize, you know, at times like this, we will get into discussions about what is legal, what is not legal, what is legal on ag lands or not legal, but, you know, in the meantime, I don't think personally that the Legislature passed a law that would help or not to help the farmers to survive. I think it is critical in today's world COUNCIL MEETING • - 59 - • January 14, 2009 especially the way that we are today and the economic times are hard that even if we do this on legal land... like we say legal farmers, I can put language in here that these guys have to be farmers, they have to have their land dedicated in ag, and they have transient vacation rentals as such, I know that most of that money goes for those people to keep the farming operation going. I can tell you that. I know that these moneys will help them to hire the local people to continue to produce the product. So there is a lot of work that we need to do, you know, and I believe that if we refer this to the Commission, it will give us enough time to develop those issues that arise especially with the local farmers nowadays, and the ranchers and so forth based on ag land. And I think we can put language in there that this applies specifically to legitimate farming activities that is conducted on Kauai. I don't expect that any person who has a transient vacation rental now and does not have a dedicated land in farm, does not really derive income from ag lands to have a transient vacation rentals as such to exist. I think, you know, we need to look at it overall and if we do that and get into a reasonable discussions with all of us including getting some real opinions based previously to 2006 and so forth, we may all have different views or perhaps the legal opinion might hold. But at least we... for me, I haven't had the chance to be able to work on this yet. I wasn't on the Council when this was passed and I know that some of the other members have and I only say this for also the three (3) new members too. I think we need the opportunity to do that, so if we receive this bill, then basically what we are saying, we are killing this whole bill tonight. So I would suggest for the Councilmembers that we at least consider referring this bill to the Commission and when it comes back to us, we can have this debate going back on the floor again, and each one of us can make the right decision... come to the best judgment that they feel that they can do. Chair Asing: With that, do you want to make a motion? The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: Yes, I want to make a motion to refer this to the Planning Commission. Mr. Kaneshiro moved to refer Proposed Draft Bill No. 2298 to the Planning Commission, seconded by Mr. Chang. Chair Asing: With that, any discussion? Lani, go ahead. Ms. Kawahara: What did we just do? Mr. Bynum: We just put the bill... we just put the motion on the floor. Chair Asing: There is a motion on the floor and you may... COUNCIL MEETIN• - 60 - ~ Janua 14 2009 r'Y Ms. Kawahara: I also have been doing a little bit of homework and research on this, and I have familiarized myself with the State law, the 205. But I would like to support Councilman Kaneshiro in whatever action it takes to allow us to get more information and specifically some kind of legal opinion that discusses the State law in conjunction with... State land use laws in conjunction with County land use laws. I think that is where it gets not so black and white as in 205. In this, I am speaking about... I was talking to a land use attorney and there are overlaps in the County land use and the State land use type of things. So I would like to get... be able to find out more information before killing a bill especially this one of this importance. I am interesting in supporting farmers that are doing it legitimately and do need vacation rentals to supplement their farming when it becomes difficult. I am not in support of using farm lands for luxury homes and to be able to distinguish that, I think and bring some clarity as Councilmember Bynum has brought up, is something the Council can try to do and allowing it to go to Planning if that is what gives us the ability to get more information on conflicts between County and State, I would like to take that action. Chair Asing: Thank you. Any further discussion? Councilmember Bynum? Mr. Bynum: I think... isn't democracy great. This is fun in some ways and not so fun in others. But, you know, I can't... I mean we are talking about... the point I made earlier is we don't have clarity. This bill is about vacation rentals on ag land that already existed. The Chair brings up the Hokulia case which was about large lot subdivision on ag land creating farm dwellings that pretend like they are agriculture that we all know are not. And the Hokulia case was watched with great interest by many people because we thought the courts might bring us some clarity to the use of ag land. When Judge Ibara made his ruling, he said what we all knew. This isn't really about ag, this is about luxury subdivisions and maybe we shouldn't do that on ag land. I happen to agree with that from what I have learned that we shouldn't do that. Our General Plan says that we shouldn't do that and we will have some bills, I believe later this year for the Council to consider that would clarify that legislatively. Unfortunately, Judge Ibara's ruling, as you point out Chair, went to the Supreme Court was not decided, and they ended up building those large lot subdivisions on the Big Island. So the courts didn't bring us clarity in that case. Our legislation here at the County level has not brought us clarity and at the State level even though former Chair of the Land Use Commission felt like this issue was clear to him, it certainly wasn't clear to all of our Legislators even on this island who I think are proposing legislation to make it clear that... under certain circumstances, you can do it. But as Councilmember Kawahara points out, on agricultural land, the State has jurisdiction, and so does the County. It is one of those land use areas where you have to work in concert and what we are talking about is the County's response to that. So I just had to comment on the Hokulia because that is really about a different ag issue. But, you know, we may find... • COUNCIL MEETING - 61 - January 14, 2009 Chair Asing: Councilmember, it is about farm dwelling. Hokulia is farm dwelling and farm dwellings are not allowed on State ag lands. Hokulia is farm dwellings and that was why the Judge ruled it as illegal use of ag zoned lands. Mr. Bynum: To make farm dwellings that no farmers are going to occupy. Chair Asing: Yes. Mr. Bynum: Well, you might find that... on those issues, we are in agreement, so... Chair Asing: Yes, go ahead. Mr. Furfaro: Mr. Chair, I want to point out again the testimony that was in my cover letter and I want to make sure everybody understands. It is not solely an economic issue that I am talking about, but it certainly as I tried to point out has some... there are some unintended economic impacts right now in the environment that we are at. I also want to say in this overview here is as we move and I hope with some urgency on the important ag land, to me, the question is, when those lands are identified, this activity ceases in those areas identified as important ag land. But like you led to changing the zoning, that question will be left out there. What happens with those areas that are not identified as important ag land? How is the Council... future Council, this Council going to deal with that because in my understanding is that this is an evolutionary process. At some point in time, we are going to have to deal with that question about changing maybe zoning to rural or whatever, or ag to... and we are going to have to develop a plan that specifically says, what is allowed in those areas that are important ag lands. And maybe there is no new density and so forth, but we will have to define that as a zoning, so I want to make sure that I express my concurrence with Councilman Kaneshiro that sending it down to the Planning Commission will stimulate that kind of questions about the vision of what happens to those other lands. Thank you. Chair Asing: Thank you. I think we've had enough discussion. We have Bruce that who wants to talk one more time and we will allow him that opportunity. Bruce? There being no objections, the rules were suspended. Mr. Pleas: Thank you. Bruce Pleas for the record. As I mentioned before, if you do not receive this or deferral... as a person who goes between County Council meetings and Planning Commission meetings, to send this off to the Planning Commission to get clarity is passing your buck off to somebody else. If you are going to get clarity, I would suggest that you do it in the Council, so that you get the answers done to your satisfaction. On the Planning Commission staff and everything, they have a lot of big stuff on their agendas right now. I would COUNCIL MEETIN~ - 62 - • January 14, 2009 suggest that you get this settled... get the clarity in Council and then send it to the Planning Commission. The solutions that I see is... if you want to make this legal, we need to change the State laws, lobby for that, or as in `Anini, lobby to change the zoning on the mauka side to urban, so they can have transient vacation rentals. Those are solutions. Also, I would really like to say mahalo to Councilmember Kawakami because this is something my wife always brings up, and I agree with totally. Somebody who did something legal, did not have a transient vacation rental on their farm lands because it was illegal, is now the one would suffer if you allow the illegal ones to become legal. This is a travesty. If you are going to pass this and allow the illegal TVR's that have been there since 1976 to become legal, you, therefore, must allow the people that are on ag lands to have TVR's too that have abided by the laws. So you are opening up everything. So, you know, I really would... if you want to keep this alive and get it done, please do it in the Council, get the work done here, and get it clarified, and then send it on the Planning Commission. Chair Asing: Thank you Bruce. Any questions? If not, thank you very much. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: I believe we have had enough discussion. Let's take the roll call please. Mr. Nakamura: (Inaudible). Chair Asing: No, I would like to do roll call. Mr. Nakamura: Okay. The motion is to refer this matter to the Planning Commission for recommendation. The motion to refer Proposed Draft Bill No. 2298 was then put, and carried by the following vote: FOR REFERRAL: Bynum, Chang, Furfaro, Kaneshiro, Kawahara TOTAL - 5, AGAINST REFERRAL: Kawakami, Asing TOTAL - 2, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: With that, next item please? Mr. Nakamura: The last item is a bill for second reading. COUNCIL MEETING ~ - 63 - • January 14, 2009 BILLS FOR SECOND READING: Bill No. 2294, Draft 1 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Transient Vacation Rentals): Mr. Bynum moved for adoption of Bill No. 2294, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Bynum: Yes, Mr. Chair, Councilmember Kaneshiro and I have an amendment that we discussed last week. It clarifies that single family... that vacation rentals in condominiums and single family will be registered, but that we will not require that registration of timeshare units because they are already subject to Chapter 514(e) of the Hawaii Revised Statutes which requires a registration. Our goal was to require a registration of all transient accommodations whether it was single family or condominium, so we had a really clear idea of how many units we had on the island. This is consistent with that goal, but not burdening the timeshare people with doing it twice. So the County Director of Finance will take registration of multi-family condominiums, the State will give us the numbers that we need on the transient vacation rentals, and that is the purpose of this amendment. Mr. Furfaro: You mean the State will give us the numbers on a timeshare unit. Mr. Bynum: Right. The State will give us the numbers on the timeshare... Mr. Furfaro: This is the amendment that we discussed last time as possibly being introduced by you and Councilman Kaneshiro. Mr. Bynum: That is correct. Chair Asing: Thank you. Mr. Kaneshiro moved to amend Bill No. 2294, Draft 1 as circulated, seconded Mr. Furfaro, and unanimously carried. Chair Asing: With that, I am going to suspend the rules. Bruce? There being no objections, the rules were suspended. Mr. Pleas: Bruce Pleas for the record. There is just one concern I have because during the stakeholder's meetings, we had much discussion COUNCIL MEETIN~ - 64 - ~ Janua 14 2009 r'Y , on the signage. The reason the wording is here for a one square foot sign which we envisioned to go on the building next to your... the numbers on your building required by the County. We wanted to have something, so there was information available, but was not going to make a lot of signs in a residential area where you just have vacation rental signs. Like in Kekaha, if you went down in those areas, the whole block is covered with them. So it was basically decided that the one square foot was where we wanted to go, so that was nice. I really have a serious concern with going to Chapter 15, Article 4 of the Kauai County Code. I would just like the Councilmembers... everybody to know what that means. What that means for a single family... transient vacation rental... in open ag or residential R-1 through R-6, one wall or ground sign unlighted or indirectly lighted made of wood or non-reflective metals not exceeding six (6) square feet in area containing matters relating to a business conducted on the premises. The top of the ground sign should not be higher than eight (8) feet from the ground. If you live in R-1 to R-6, what you are going to see is 2x3 or so signs at every residence. They can be up to eight (8) feet from the ground. And there will be very few of these, but in residential R-10 through R-20 single family. What you have... the ground sign is one ground sign unlighted or indirectly lighted not exceeding 24 square feet in area not more than eight (8) feet in height from the ground to the top of the sign (inaudible)... Those would be the signs that would be allowed, so in R-10 to R-20, you could have a 4x6 sign. This was something that we really felt that was not needed across Kaua`i... was a proliferation of signs and we were talking, at that time, we thought there were not that many vacation rentals, but we have found out that there are a quite a few. Now I think we have approximately 500 to 600. I know in Kekaha, there is one area that has... where the pool used to be. There is about eight (8) or ten (10) in there, and then farther down, there is another six (6) or eight (8). So this is the concern that I have. I would really like to see this amended, so we are back to the one square foot sign for... Mr. Furfaro: Bruce, are you reading the sign ordinance? Mr. Pleas: Yes, this is the sign ordinance. Mr. Furfaro: We have in the bill the sign being... I think the letters are two (2) inches and the sign is not more than two (2) feet by one and a half foot or something like that, but it is much different from what you just read us. Mr. Pleas: I have... I picked it up today, 2294, Draft 1. This is... it is Section (b)(2). Mr. Furfaro: Did we not amend that at last week's meeting? Mr. Nakamura: It was amended to make it comply with the sign ordinance. Mr. Furfaro: Is that what happened? COUNCIL MEETING ~ - 65 - ~ January 14, 2009 Mr. Pleas: And that is the sign ordinance. Mr. Furfaro: But didn't we have all the discussion about letters of two (2) inches, signs not more than two (2) feet by one and a half foot? Mr. Nakamura: That was deleted in... what was replaced was that they shall comply with the sign ordinance. Mr. Furfaro: And I appreciate Bruce bringing that to our attention because that is not how I understood it and before it was deleted, then we do need to revisit it. Chair Asing: Bruce, thank you very much. I am going to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We are going to take a short recess while we do the preparation for the amendment and at the same time, the tape is going to be changed, so we have a short recess. Mr. Furfaro: Bruce, thank you very much. Mr. Pleas: I was sick that night (inaudible)... Mr. Furfaro: We did think that we had corrected, but it got deleted. Chair Asing: We are going to take a short recess and then do the amendment now. There being no objections, the Chair called for a recess at 8:40 p.m. The meeting was called back to order at 9:04 p.m., and proceeded as follows: Chair Asing: We are now on Bill No. 2294, Draft 1 and I believe we have a further amendment. Mr. Furfaro: Yes, Mr. Chair, first of all, I want to thank Bruce for bringing that section (b)(2) to our attention and I do want to say that last week we had really focused on making sure that they were in single family areas and we really referenced the numbers and the wordage on the signage not to be more than two (2) inches, but inadvertently left out the section that dealt with the actual size of the sign. So we are back to the original piece as Mr. Pleas had pointed out that shortcoming, and I wanted to thank him, but that amendment is being circulated that gets us back to the original size of the numbers as well as the size of the actual signage and it is in the single family section of the bill. COUNCIL MEETIN~ - 66 - ~ Janu 14 2009 ~'Y , Chair Asing: Did we have a motion to amend? Mr. Bynum moved to amend Bill No. 2294, Draft 1 as circulated, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Now we are back to the main motion as amended. Any discussion? If not, roll call please. The motion to approve Bill No. 2294, Draft 1, as amended, on second and final reading, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami TOTAL - 6, AGAINST ADOPTION: Asing TOTAL - 1, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: The meeting is adjourned. Thank you very much everybody. There being no further business, the meeting was adjourned at 9:06 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /lki • COUNCIL MEETING January 28, 2009 The Council Meeting of the Council of the County of Kauai was called to order by the Council Chair at the Council Chambers, Historic County Building, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, January 28, 2009 at 9:04 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Dickie Chang Honorable Jay Furfaro Honorable Daryl W. Kaneshiro Honorable Lani T. Kawahara Honorable Derek S.K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Kawakami, and unanimously carried. MINUTES of the following meetings of the Council: Council Meeting of December 17, 2008 Council Meeting of January 14, 2009 Public Hearing of January 14, 2009 re: Bills Nos. 2295, 2296, and 2297 Mr. Kawakami moved for approval of the minutes as circulated, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Can we have the first item on the agenda? PETER A. NAKAMURA, COUNTY CLERK: On page 1 of the agenda for receipt is communication C 2009-55. C 2009-55 Communication (09/11/2008) from the Director of Personnel Services, transmitting for Council information, the following classification requests which the Department of Personnel Services will be reviewing and taking appropriate action: • Department of Public Works, Position No. 1930 and Position No. 1931 (Present Class of Equipment Operator III to Landfill Operator III) • Department of Water, Position No. 2439 (Redescription Review of Equipment Operator II) • Office of the County Attorney, Position No. 126 (Present Class of Legal Clerk III to Legal Clerk I): COUNCIL MEETING. - 2 - ~ January 28, 2009 Mr. Kaneshiro moved to receive C 2009-55 for the record, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On C 2009-56, Mr. Chair, we are waiting for the Parks & Recreation Department to be here, so if we could just move this one down on the agenda and go to page 2. For receipt on page 2 of the Council's agenda are communications C 2009-57, C 2009-58, C 2009-59, C 2009-60, and on the top of page 3, C 2009-61. C 2009-57 Communication (12/30/2008) from the Mayor, transmitting for Council confirmation, his re-appointments of the following: Richard Koenig, Jr. Board of Review (RPT) Second Term Sherman Shiraishi Charter Review Commission Second Term Lorna Nishimitsu Cost Control Commission Second Term Sandy Sterker Cost Control Commission Second Term Wayne Mukai Fire Commission Second Term George Simpson Fire Commission Second Term Clifford Nakea Liquor Control Commission Second Term Thomas Iannucci Police Commission Second Term Alfred Nebre Police Commission Second Term Randy Hee Salary Commission Second Term Tom Cooper Salary Commission Second Term Trinette Kaui Salary Commission Second Term Mr. Kaneshiro moved to receive C 2009-57 for the record, seconded by Mr. Kawakami. C 2009-58 Communication (12/30/2008) from the Mayor, transmitting for Council confirmation, his appointments of the following: Rolf Bieber Board of Ethics Partial Term Paul Weil Board of Ethics First Term Sonny Gerardo Board of Review (RPT) First Term Craig DeCosta Board of Review (RPT) First Term Carol Ann Davis Charter Review Commission Partial Term Carol Suzawa Charter Review Commission First Term Cathy Adams Civil Service Commission First Term Gary Pacheco Liquor Control Commission First Term Hartwell Blake Planning Commission First Term Charles Iona Police Commission First Term Mr. Kaneshiro moved to receive C 2009-58 for the record, seconded by Mr. Kawakami. C 2009-59 Communication (01/02/2009) from the Purchasing & Assistant Contracts Administrator, transmitting for Council information, the Fiscal Year 08/09 Second Quarter Statement of Equipment Purchases: Mr. Kaneshiro moved to receive C 2009-59 for the record, seconded by Mr. Kawakami. COUNCIL MEETING • - 3 - • January 28, 2009 C 2009-60 Communication (01/05/2009) from the Chief, Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for December 2008 that includes the following items: 1) Building Permit Processing Report 2) Building Permit Estimated Value of Plans Summary 3) Building Permits Tracking Report 4) Building Permits Status Mr. Kaneshiro moved to receive C 2009-60 for the record, seconded by Mr. Kawakami. C 2009-61 Communication (01/12/2009) from the County Engineer, transmitting a request to transfer $900,000 from the County's General Fund (CIP) to the New Kapa`a/Kealia Fire Station for construction for anoff-site waterline: Mr. Kaneshiro moved to receive C 2009-61 for the record, seconded by Mr. Kawakami. Chair Asing: Any discussion? Mr. Furfaro: I would like to refer to items C 2009-60. Just for the member's attention, I want to make note that during this period of building permits that the value from the previous year is down almost 71%, and I would just like to make note of that. Thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? If not, all those in favor say aye? The motion to receive C 2009-57 through C 2009-61 was then put, and unanimously carried. Chair Asing: The next item please? Mr. Nakamura: We are on page 3 of the Council's agenda on communication C 2009-62. C 2009-62 Communication (01/15/2009) from Council Vice Chair Jay Furfaro, requesting that the Administration be present to give an update on the County's efforts to address the hazardous conditions at Queen's Bath and the path easement: Mr. Nakamura: There is a request from the Administration to defer this matter. Chair Asing: Prior to deferring... the motion to defer, I'd like to... is there any discussion Councilmembers? COUNCIL MEETIN • - 4 - ~ Janu 28 2009 ~`Y Mr. Furfaro: Mr. Chair, I did circulate a correspondence this morning to all of our members acknowledging a few questions directed at the Fire Commission regarding the short term maintenance and the contents of the resolution that we passed. I just want to point that out and I have no problem for a maximum two (2) week deferral. Chair Asing: Any further discussion? Is there anyone in the public who wants to speak on this item? If not, all those in favor say aye? Mr. Nakamura: There was no motion Mr. Chair. Mr. Furfaro moved to defer C 2009-62, seconded by Mr. Kawakami, and unanimously carried. Mr. Nakamura: On page 3 on communication C 2009-63. We have also received a request from the Administration requesting to defer this matter. C 2009-63 Communication (01/15/2009) from Council Vice Chair Jay Furfaro, requesting that the Administration be present to give an update and overview of the Kilauea Agricultural Park Project which should include, but not be limited to, the work/recommendations prepared by the project's consultants, projected cost of the infrastructure improvements, plan for financing the improvements, projected timeline for the different phases of the project, etc.: Chair Asing: Is there any discussion prior to the motion to defer? Councilmember Furfaro? Mr. Furfaro: Yes, thank you again Mr. Chair. I have no problem with a two (2) week deferral, but I did express to the Administration that I did not want to go beyond the two (2) weeks to get an update on this, therefore, I thank you for your willingness to take some comments before we go to defer because as noted, there is no commentary after the deferral. Ms. Kawahara: Yes, thank you Vice Chair Furfaro. I was concerned about the deferral on this because of the recent articles in the newspaper where the community is definitely really wanting to get this going. So I would like to urge... hopefully urge the Administration to really get on it. Thank you Chair. There being no objections, the rules were suspended. Chair Asing: Bruce? BRUCE PLEAS: Bruce Pleas for the record and for the rest of the... I'd like to say this for the record too. I am a Kauai resident. I do not represent anybody. I represent myself and I am not part of a registered or unregistered lobby organization. 25 years, wow, it has been a long time. Maybe you will get that in the COUNCIL MEETING ~ - 5 - ~ January 28, 2009 next quarter century. One question that I would like to have put out to... since you are deferring it. The availability of affordable irrigation water... when we left this last time, there were, I believe, three (3) inch or one and a half (1 1/2) inch water sources. You cannot run a viable farm operation on County water, so this needs to be explored, this needs to be looked into, and I believe the eastside conservation district... whoever is in charge of the water there... maybe somebody to request to be here. So, we, again, go over this question of why is there not affordable water for farming practices in this area or is there an alternate that can be done, so this can become affordable. Thank you. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, thank you and perhaps I should have waited until we called this back to order and I will wait. I will, my comments until we call it back to order. Chair Asing: Thank you. Is there anyone else? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Any further discussion? Councilmember Furfaro? Mr. Furfaro: Yes, it is because of testimony that we just received that the public is confused on the Council's role. As far as the agricultural park, I don't disagree that it has taken far too long for this activity that happened, but it was because it got recent focus from this Council. This Council did, in fact, budget the appropriate moneys for the planning of the park. The plan is now ready to be presented in a sense that there may be several options and many of those options, in fact, do focus on this actual use and this time of energy sustainability, recycling facilities for the North Shore and so forth. They all are encompassing in the presentation that I believe will be made by the consultant that this Council approved the money for (Kimura & Associates). The Chairman has been very focused on this and I just want to make sure that we all clearly understand the directing and the management of this particular parcel is the duty of the Administration. The role of the Council in funding the research and funding the plan is what we are waiting for here. I would also like to point out that water seems to be key point in the important ag lands coming up. So let's not confuse the issues and leave all of the responsibility to accomplish this is, in fact, on the shoulders of the Council. We have funded and directed our policy statements accordingly. Thank you Mr. Chair. Chair Asing: Thank you. With that, Councilmember Kawahara, do you have a question? Ms. Kawahara: No, thank you. COUNCIL MEETIN • - 6 - ~ Janu 28 2009 ~'3' Chair Asing: Any further discussion? Mr. Furfaro: Again, I just want to reiterate I do not hope to have a deferral of more than two (2) weeks. Chair Asing: Thank you. Before we take the motion to defer, I'd like to say that, you know, this plan, we have hired the consultant to do the plan. With that, there are many alternatives. I believe there are three (3) different alternatives... there are all kinds of issues that need to be handled. It is not a one issue. It is who gets to lease the land? What are the terms? What size farms are we talking about? There is just a multitude of issues that needs to be addressed first before implementation of the plan. So the consultants will be giving us an overview of the plan. With that, can I have a motion to defer? Mr. Kawakami moved to defer C 2009-63, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At this time, on the next communication C 2009-64, I think we are still waiting for some people to arrive Mr. Chair, so if we could go onto communication C 2009-65 for receipt. C 2009-65 Communication (01/21/2009) from Councilmember Tim Bynum, transmitting a resolution to urge the Governor of the State of Hawaii and the State Legislature to continue funding and restoring full funding for the Hawaii Healthy Start (HHS) program: Mr. Kaneshiro moved to receive C 2009-65 for the record, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Can we go back to page 1? Oh, they are not ready. Mr. Nakamura: On page 3, the next communication is C 2009-66 for approval. C 2009-66 Communication (12/17/2008) from the Chief of Police, requesting Council approval to accept a $500 monetary donation from Mrs. Clorinda Nakashima to express her gratitude for the Department's response to her call on September 15, 2008 which funds will be used for the KPAL program: Mr. Kaneshiro moved to approve C 2009-66 with a thank you letter, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter is on the bottom of page 3 for approval which is communication C 2009-67. COUNCIL MEETING ~ - 7 - • January 28, 2009 C 2009-67 Communication (12/17/2008) from the Chief of Police, requesting Council approval to indemnify service agreements with Lexis Nexus (Accurrint for Law Enforcement), Experian (Credit Profile Report), and Locate Plus (Entersect Police On Line) to access their online databases which will facilitate the background and missing persons investigation process: Mr. Kawakami moved to approve C 2009-67, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Furfaro: Mr. Chair, I do plan to vote in the affirmative on this, but I would like a communication just to go over to the County Attorney's Office based on the fact that we are now going to be accessing data, and I just want to make sure we truly understand our potential exposure on this one. Chair Asing: Thank you. Any further discussion? It not, all those in favor say aye? The motion to approve C 2009-67 was then put, and unanimously carried. Chair Asing: The next item please? Mr. Nakamura: I believe we are ready to go back to page 1 Mr. Chair on communication C 2009-56. C 2009-56 Communication (12/04/2008) from Councilmember Daryl W. Kaneshiro, requesting that the Administration be present to give an update on the County's Habitat Conservation Plan which should address the steps that need to be taken in dealing with Shearwaters: Chair Asing:With that, I would like to suspend the rules. There being no objections, the rules were suspended. LENNY RAPOZO, JR., DIRECTOR OF PARKS & RECREATION: Good morning. For the record, Director of Parks & Recreation Lenny Rapozo. In regard to the communication, I am going to have the Deputy explain where we are with the Habitat Conservation Plan with a short PowerPoint that brings everybody up to speed. KYLAN DELA CRUZ, DEPUTY DIRECTOR OF PARKS & RECREATION: Good morning. Kylan Dela Cruz, Deputy Director of Parks & Recreation. Again, I am just going to provide the... there is a two (2) part question to the communication. First, I will provide the update to the Habitat Conservation Plan and where we are at. I want just... as you already to know that the... just providing the reasons for the HCP. I want to comply with the endangered species act in regards to the endangered species, and apply for the incidental take permit. COUNCIL MEETING. - 8 - ~ January 28, 2009 Incidental take permit... in order to get to that point, we need to have an HCP attached to this application. These are the measures for the HCP particularly to minimize the taking of the threatened endangered birds and mitigate the fines imposed by the endangered species act. We have been working with the consultants and discussing the... refining the direction that the County may undertake. As you know, the State is doing a Kauai Shearwater Habitat Conservation Plan (KSHCP) and we are listening and meeting with them also and discussing, you know, what they plan to do, and whether we should partake in that or whether we should continue with our current course of action which is establishing a County HCP. The consultant is to provide a formal report draft to the County on the recommendation to delineate the County's options and reasons for those options. Basically, it is a decision point for the Administration to decide on how to proceed. Is there any questions for that? Mr. Bynum: Is that the end of the presentation? Mr. Dela Cruz: We have a slide after to show the, you know, the matching funds. Chair Asing: You want to finish the presentation first? Mr. Kaneshiro: Do the funding sources and then we will ask questions because it is hard for us to come back and go back. Mr. Dela Cruz: Okay, so this is the State matching funds. As you know, the State appropriated $1.2 million, the County had matched it using CIP and bond fund sources. $200,000 for the development of the HCP that is currently being done right now and $800,000 for light retrofit, and the bond fund of $270,000 for light retrofit. The State matching funds were released on October 17 of last year and it is to finance and design and construction for light retrofit at ball fields in recreational facilities. Again, that concludes the PowerPoint. Mr. Bynum: Can you go back one slide? So the County has funded $200,000 for the HCP so far? Mr. Dela Cruz: Correct. Mr. Bynum: Thank you. Chair Asing: Thank you. With that, Councilmembers, any questions? Councilmember Bynum? Mr. Bynum: Good morning. Mr. Rapozo: Good morning. COUNCIL MEETING ~ - 9 - ~ January 28, 2009 Mr. Bynum: So the Habitat Conservation Plan... the consultant is going to outline our options, is that the scope of work for the entire $200,000 or they are developing a Habitat Conservation Plan for that? Mr. Dela Cruz: The intent is to have the... develop the HCP, but then we are still stuck in the... as far as what direction we are going to be going, so it is not clear at this point whether the HCP will be completed. Mr. Bynum: So there is work for the consultant beyond, perhaps, beyond the options that they are not going to spend the entire $200,000 to give us... to align the options, is that correct? Mr. Dela Cruz: That is correct. Mr. Bynum: So my questions really have to do with the scope of work. If we do a Habitat Conservation Plan, is it just for lighting or is it for other activities that the County may engage in that involve shearwaters and birds? Mr. Dela Cruz: This is particularly addressing the current list that the three (3) birds that was previously identified by the U.S. Fish & Wildlife Endangered Species list. It is to address our County facilities to mitigate the take. Mr. Bynum: So the County can be (inaudible)... maybe in the future engage in a number of activities that impact shearwaters and other endangered species... particularly alternative energy programs that involve wind or solar, and currently the County is permitting small wind energy systems... Planning is contemplating a bill to help outline the parameters of that permitting occurs and small and medium wind can be an important part of our energy mix as we move into the new century... and particularly on County facilities that are in high wind profile areas where we have a footprint and that it may be in our best interest to put medium wind systems to offset our electric cost. That will... but we have to address this issue of shearwaters as a potential take from these small or medium wind systems. So will this HCP cover those issues? Mr. Dela Cruz: At this point, no. There needs to be more clarity as to identifying, you know, residences versus County facilities, and the direction was... we still need to have more clarity in that. Mr. Rapozo: So it is basically current County facilities that we have. Mr. Bynum: For instance, we have a wastewater treatment plant in `Ele`ele that is in a high wind profile area. I have seen proposals from alternative energy companies saying that they will put up medium wind systems on our County facility, and guarantee us a cost savings on electricity immediately. So, COUNCIL MEETING. - 10 - ~ January 28, 2009 you know, I am very interesting in how the County invest in alternative energy and really takes a forefront in terms of reducing our carbon footprint and global warming and more importantly reducing our... also concurrently reducing our energy cost. So if a big part (inaudible) covers conservation plan as I understand it, it is setting the baseline. What are the populations? What is the mitigating efforts that we would put in and those would be the same whether it was for wind systems or solar systems, or sports lighting. So, you know, are we going to do multiple HCP's or are we going to do one that addresses County facilities, and we have potential liability if we are permitting private companies to do... which we are individuals right now to engage in activities that may result in incidental takes. Mr. Rapozo: That is right. Mr. Bynum: So what I am... and then the State, as you mentioned, and I am glad to hear that there is a dialogue with the State to say what their role is because they are working on an islandwide HCP. So some of that baseline data analysis will be the same for the State as it is for the County, so we are really glad to hear that you are in dialogue with them to determine, you know, not duplicating efforts because this is a technical and expensive... I hate to see the State put a lot of time and energy into doing the same baseline data that we put a lot of time and energy into... so I hope those dialogues will continue and my questioning... I know you are from parks, so you probably focus more on park facilities, so for the counties, for us to look at... and address all of our potential impacts on the shearwaters and other endangered species, so we have an opportunity to engage and invest in the things like small wind that could be part of our energy mix or if we find out that we cannot. It would be nice to know that too. Mr. Rapozo: So currently we are just focusing on current County facilities and that is something that is not being addressed in the scope of work right now, we don't see it right now. But we do look at... we do have some private entities currently in County facilities which will be our responsibility if something did happen with the protective species. Mr. Bynum: And if we are focused just on County properties, is it just for lighting or is it for also other potential activities that the County may choose to engage in? Mr. Rapozo: Right now, is other potential yea, but it seems like with the ball parks and everything, right now, that seems to be the current issue. Mr. Bynum: Critical issue. Mr. Rapozo: Critical issue right now, yea because of the lighting stadiums and ball parks. Chair Asing: Let me try to clear this. Councilmember Kaneshiro? COUNCIL MEETING ~ - 11 - • January 28, 2009 Mr. Kaneshiro: Thank you Mr. Chair. The communication that I sent was a follow up on the request because of the money issue. The issue we have here is that the State Legislature and the Governor already released $1.2 million. And the money came for us to use... our request was to use or to get funding from the Legislature to help us to retrofit some of the lights in the stadiums and the parks that are often used by both KIF and so forth which I believe what we are trying to do is... with this study, is accomplish that we meet the requirements before we start to retrofit the stadium lights with the moneys that have been appropriated by the Governor. So as I can recall, the study was to study what type of lights we are going to be using for the stadiums and so forth or any of this parks that you needed to retrofit which this moneys that was appropriated by the State Legislature and the Governor. Now I believe there is some other studies going on and perhaps some of the other Councilmembers can speak about that, but my recollection was that money was appropriated to specifically address the ball parks and stadium lighting and the Kapa`a ball park that we have been looking for funding for many years now. We were happy that the money was released in October. So, you know, I would like to keep the focus if we can on the part of where the money is going to be spent, how it is going to be spent, and at the same time, what is the recommendation from this study that is ongoing before we spend the money. So I think that is the whole issue that brought us here today. Chair Asing: Would you like to expand on that and give us... Mr. Rapozo: The money is being used to finance the construction and design of light retrofits for all facilities. That is one issue. The other issue is the plan, and the plan we want to incorporate all County facilities, so we have two (2) things going on at the same time. To keep us in compliance with the Federal endangered species act as well as to accomplish what exactly what Councilman Kaneshiro has asked us in terms of retrofitting the lights at the ball fields. Chair Asing: So let's try to make it as simple and plain as possible. When did you start? Where are you today and when do you project the study complete? Why don't we just try to make it as simple as possible. Mr. Furfaro: First of all, I want to concur with Councilman Kaneshiro who is now the Finance Chair and I was the Finance Chair when we approved this $200,000. The urgency was focused on the ball parks. There are members at this table that knew that the Administration had a option to jointly do this with the Federal government for all facilities on the island, but it seemed that the State was not clear in the baseline needs for their own facilities. And if I want to refresh that the urgency was placed on the fact that we were being threatened with having to go with day light ball games. So we appropriated this money for Parks & Recreation specifically to get the matching funds from the State to do the retrofit. COUNCIL MEETIN ~ - 12 - • Janu 28, 2009 So I concur with you. I thought the agenda item here was to give us an update on that. Now I want to... there is nothing that Councilman Bynum didn't point out that we have to do, but the State doesn't have a clarity on what a conservation plan should be looking in terms of scope, goals... I don't even think the Federal government is totally clear on what the conservation plan should look like. So I want to acknowledge you, Mr. Chair, the item that was put on was this $200,000, and the Finance Chairman for doing that. I don't disagree with Mr. Bynum that, you know, we need to understand the whole scope... we need energy relief, but in the meantime, I sat on the Committee and this $200,000 was focused on the ball parks because of the urgency. Chair Asing: Let me expand a little bit more than that. One of the major concerns that the Council had that apparently there was some movement on doing the retrofit at the stadium on completing the light system. And so the question was, is the light system that you are installing in compliance with the shearwater plans? Mr. Rapozo: Yes. Chair Asing: That is the major question and we have not received a real clear understanding because the question from the Council was, you have the money, you are going to go ahead and do the retrofit of the lights. After you complete that, will that be in compliance with the plan? That is the major question and are we clear on that? Can we get a clear answer that, yes, when we do the retrofit, we will, in fact be in compliance? Mr. Dela Cruz: It is... as far as the clarity is concerned, the government... the Federal government does not have established guidelines as far as what to address when dealing this light retrofit. So as far as clear whether this light retrofit will, you know, resolve the issue is the question. If you don't have any guidelines, how can you go forward with saying, yes, it is going to address the shearwaters? I mean we are working with consultants, you know, in dealing with the illumination... how many candle light power, where the light should be focused on with the consideration of, you know, addressing the shearwaters or the birds. Chair Asing: So we still, as of this date, have not received any clarity on that issue, am I correct? Mr. Dela Cruz: That is correct. Chair Asing: Thank you. Any other questions Councilmembers? Councilmember Bynum? Mr. Bynum: I understand the urgency of the lighting issue. I understand that much of the dialogue here at Council have been about lighting. What the agenda item says is that we are requesting the Administration to be COUNCIL MEETING ~ - 13 - ~ January 28, 2009 present to give an update on the County's Habitat Conservation Plan which should address the steps needed to be taken in dealing with shearwaters. And you clarified for me that it is based on County facilities. I am just saying there are other activities that we may engage in, in County facilities that require us to have a habitat conservation plan. I hate to see us recreate the wheel and that is the question... are we doing one just for lighting or is it comprehensive for the County's activities at its facilities in which case we need to address these broader issues because I don't want us to recreate the wheel and spend this money twice. If a habitat conservation plan gives the mechanism by which we can do alternative energy at County facilities, that is great. But if we find out... I mean because it may be prudent. I think it probably is that the County engage in that activity immediately as soon as possible. If habitat conservation is going to be an obstacle to that, if this is the mechanism, I am thrilled because it is already in process. If we need a different mechanism, then we better get busy. Mr. Dela Cruz: Well, there are a lot of variables involved, you know, you have a list that identifies the current... the current list identifies three (3) and I am just talking about our parks facilities right now that identified three (3) endangered species of birds, but next year they may come up with another list that may address another bird, so then another HCP needs to be addressed for that bird. There are variables such as that, that come into play when trying to develop that HCP. You want HCP which covers its entirety, but it is very difficult at this point to make that type of determination or conclusion. Mr. Bynum: So a minute ago I asked the question and Lenny was nodding and we don't pick up nods on the public record, so the habitat conservation plan that we are working on could also cover other activities of the County? Mr. Rapozo: Based on the three (3) identified birds that were shown earlier on the slides. Mr. Bynum: So we don't have to have a separate process to deal with small and medium wind systems that the County may choose to be involved... or solar or other activities that County facilities... this habitat conservation plan will be broad enough to cover those things, am I correct? Mr. Rapozo: I don't think so, but because like what my deputy just said, at the time that the wind... what you are asking, if there are different birds on the list, then a whole new HCP plan needs to be done to address those endangered species. What we are saying is that for the three (3) species shearwaters and I forget what the other two (2) was, that is what this HCP plan will cover to identify all of our County facilities. Mr. Bynum: Including water and wastewater. COUNCIL MEETING - 14 - ~ January 28, 2009 Mr. Rapozo: Right. Mr. Bynum: What I am just trying to say is, we are engaged in a number of activities potentially that impacted species. I hope we are not doing a conservation plan for each one separately. The State... one of the things the State is saying is you can join us. We are doing one islandwide and we could partner on this. Mr. Dela Cruz: I think it is a little bit premature to answer that question right now in that we are still trying to identify what facilities are impacted... the consultants, are they going to provide a formal draft in the future to address what facilities are being impacted. So as far as addressing like, you know, windmill issues and stuff like that, I mean that is still open for discussion. Mr. Bynum: And I guess I will just close with the... I think we would, perhaps be making a large mistake if we didn't look at all of the issues that the County potentially impacts species and deal with it in one process as opposed to doing it over and over again. Because if we have to do it again, we need to get busy, we need to get it going. This HCP is underway, so I hope it is comprehensive enough to cover all of the potential activities the County (inaudible). You give me a clear answer that it is related to County facilities which leaves unanswered perhaps for another discussion. What about activities that the County is permitting that private people are doing... because we have potential liability for that, but that is a separate issue. This is for facilities and I hope it is comprehensive for all of our activities including alternative energy projects. Chair Asing: Councilmember Kawakami? Mr. Kawakami: Thank you Council Chair. Good morning. I can say that I understand your frustration with the lighting issues and the lack of guidelines and parameters that you clearly don't have... enable to move forward, but in light of the presentation, I want to bring up the subject of... like Councilmember Bynum was mentioning the islandwide HCP and I can just speak from KIUC if I may. They are currently engaging in an islandwide HCP, so they are working with the State and from what I understand, this islandwide, the benefit of it... you know, we bring up people that are going to be putting up small wind turbines and who is responsible for putting into this effort, this collective effort. I believe that under the islandwide HCP and there is a website... if you Google Kauai HCP, there will be some guidelines up there for anybody that is concerned on whether they need to be covered under this HCP or not. It basically says, any non- Federal entity whose otherwise lawful activities will result in the take of a listed species should be applying to participate in this islandwide HCP. So that means in my belief that if you are going for a wind turbine on your property, you should be applying and you may have to put in a small chunk of the change. I think KIUC is going to be footing a majority of the bill or speaking about County business and our County facilities... it may not be appropriate to present it to you. Maybe I need to COUNCIL MEETING - 15 - ~ January 28, 2009 send a communication to the Administration, but it would be worth a look to see if we would benefit from partnering with HIUC while they go through this process. The reasoning behind it is because I think their estimate take far exceeds the County, so they will be picking up most of the bill and because most of the members of HIUC... in fact all of them, I believe are taxpayers won't be billing them twice. So that is just some food for thought, but I understand the frustration and the challenges because what we also need to consider is we have all the consultants, all the attorneys... we may come up with the HCP, we may present it, and it may be rejected. In that case, we may be forced to go and amend the HCP and that will cost more money and it just goes a lot deeper than coming up with this initial $200,000 plan. I think there is potential that we may be incurring additional cost and this is just experience with working with HIUC and seeing them go through the process, but I know that HIUC is working diligently with the State for an islandwide and I believe in that process, you are going to have developers jumping in because they have listed sites and areas of concern. Some is Princeville, Kilauea, Kealia, Wailua, Kapa`a... islandwide they have identified areas and this is going to require I think some of the developers if they are going to be putting up a building that could potentially take a bird to put some money into this HCP also, so we are... the loan... (inaudible) footing the whole bill on our side and creating all these kinds of redundancies. Because I know it is scary when they talk about criminal charges and fines. I believe the fines were somewhere around the ballpark of above $15,000 for one bird. So I just wanted to offer that and I don't know if this is appropriate. I just wanted to feed you as to what my experience was with HCP on the other side of the ballpark. Thank you Mr. Chair. Chair Asing: You know, I believe that this item was more a review of the lighting issues and it started with the stadium and then expanded through to the other parks that we have park facilities that we have on the island. So I think that was the focus of this communication. With that, Councilmember Furfaro? Mr. Furfaro: I just want to say how valuable Councilmember Kawakami's (inaudible) on this item and his understanding the issues with HIUC. But I do want to take an opportunity to say to the members of Parks & Recreation... Mr. Kawakami mentioned that the fine could be $15,000 for a taking. The fine is $25,000. We also reference our ability to be applying with the Federal government for islandwide application and a conservation plan. A year ago, the Administration said to us, they were not sure what direction they were going to go into and they were concerned because the specifications on the plan were so vague, they were concerned that the scope would be too broad, therefore, we moved on this money specifically for the parks area. I think Councilmember Kawakami... as the head of our Energy Committee and is very appropriate and perhaps following up on some dialogue on that item. But at the time, we were told if we wanted to initiate an overall plan, the choices were to apply and piggyback with the Federal government or plan to spend well over a million dollars. But we wanted to address the parks because many of our parks along the flight path, the pali in Hanalei, Nawiliwili, COUNCIL MEETING - 16 - January 28, 2009 which was specifically the biggest impact area for the preservation efforts of the species, the three (3) species. And, you know, concerns came up about the shipping industry, Vidinha Stadium, and all of these other particulars. But we have not gotten to that answer and I concur with Mr. Bynum that those are all very, very important issues for us, but are we applying for this partnering on an overall application. That question has not still been answered. My understanding to these funds were to address those areas that you summarized Mr. Chair and I concur with Mr. Bynum. We have to get started on this. We have to have an answer. Are we going to partner with other organizations to share cost in an overall conservation plan. Mr. Dela Cruz: We just had a meeting last week with DLNR, Andrea Erickson folks and we are in open dialogue with them and they expressed, you know... as far as what they are doing, so the dialogue is still open and as far as looking... Mr. Furfaro: I appreciate your efforts... Mr. Dela Cruz: Looking at that option. Mr. Furfaro: I appreciate your efforts, but, again, Mr. Heu told us that they had not come to the decision about partnering and I appreciate the work you are doing on the parks piece to make sure the retrofit is appropriate, but I am going to encourage Councilmember Kawakami who has a great deal of understanding from his time on the board with KIUC on what the overall plan needs to be with moving forward, and is it financially feasible for us to partner with others, so I would encourage you do so. Chair Asing: Thank you. Any further discussion? Any further questions for the Parks Division? Councilmember Chang? Mr. Chang: Yes, thank you. I think I would just like to make a comment. What makes this situation pretty unique and difficult is I believe that the consultants really don't have anything to look back at. If we picked the shearwaters, for example, well over 90% of all the shearwaters on the world come to Kauai. There are very, very few habitats anywhere else in the State. If you are going to name one with a small colony, it is going to be Kaena Point which we all know on Oahu has no lights. I can see the challenges that are out there because no one really has experience to address this problem based on the fact that I don't think we have any history to draw from as far as... you know, I know Andrea Erickson and the down lighting and everything else, but has gotten to everyone's attention. For example, the race strip by Mana, I understand over the race season, they were forced to cancel and race during the day because a shearwater was found out there on the race track. So I know you guys are in a very, very difficult situation, but, you know, clearly, the big, big majority of the shearwaters are from Kauai, so I can understand that this is a pretty difficult time to pool because I don't COUNCIL MEETING ~ - 17 - • January 28, 2009 even know what kind of background the consultants have, but, to me, this is something unique that I don't think they have ever addressed the problem. I just wanted to make that clear. Thank you. Chair Asing: Thank you. Any questions? If not, thank you very much. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We do not have a motion at this time and I'd like to recognize Councilmember Kaneshiro. Mr. Kaneshiro: Thank you. Mr. Chair if I may, what I would propose to this body is come out with a different communication from the energy as Councilmember Furfaro spoke about is come out with an energy... from the Energy Committee with a different communication and basically look at the County's habitat conservation plan. Now the reason this is in my Committee because we appropriated $200,000 to match, to do the work that I think is real important for us to do. We need to continue to do that. Mr. Furfaro spoke about having games during the day rather than at night, so, for us, it was really important and even when we went in for the Legislature to go get funding for this, being that KIF is part of State and part of County, we urged the Legislature and the Governor that we needed this funding, so we can continue to hold night games... to hold games in parks throughout the stadiums, and more important Hanapepe, Kapa`a, and our stadium here. So we need to focus on that, so what I would like to see our Committee do is really put the part about County's habitat conservation plan through the Energy Committee, and if we want to, we can go ahead and receive this for now, and later on I will come up with another communication and find out where we are at on retrofitting the ball fields, so we don't get this cross conversation or cross discussion regarding the moneys that we appropriated. I think that would be a good way to proceed for it from here. My recommendation would be to receive this now, I will come out with a whole different communication strictly in regards to the matching funds and how far away are we from spending that money to get some of this issues resolved regarding the ball fields. Chair Asing: Thank you. With that, Councilmember Bynum? Mr. Bynum: I just want to say that I agree with Councilmember Kaneshiro that the focus up to this point has been on the lighting and I applaud your efforts to, you know, bring a Council communication to focus more directly on the lighting retrofit. Also, that we broaden the discussion because what was on the agenda said, the County's Habitat Conservation Plan. So, you know, that was the gist of my questions is how comprehensive is that because, you know, to take a step back from this, we have... we are blessed with... as Councilmember Chang has pointed out, we have the endangered species here. That can be seen as a blessing or a curse, but it certainly is the responsibility for us to respond appropriately to COUNCIL MEETING - 18 - ~ January 28, 2009 preservation of the species. The concept of this is to come up with a plan to halt the extinction of these species and all of the information that we have is that the species are diminishing. We could spend a lot of time talking about a plan and by the time we actually do focus energies on habitat conservation, the species could be gone, and that would be a real shame. When I... when we look at what habitat conservation... Chair Asing: Councilmember Bynum, I think you made your point. We are going to be sending a communication to the... Mr. Bynum: I would like to finish my statement Mr. Chair. Chair Asing: Okay. Mr. Bynum: When we look at the species, we have a responsibility and we need to address all of that because we also have a nation that is saying that we need to move expeditiously in alternative energy more than ever on this island because of our opportunity and being behind in that process. So I applaud us moving forward in discussing this further, but I got kind of mixed answers here about whether we were... this particular plan was covering all County facilities and activities or it is not. We are permitting now small wind systems on Kauai without addressing this issue. Potentially, the Federal government can come and say, hey, County of Kauai, you are allowing these wind systems to go up, you have a responsibility and start applying fines not for lighting, but for that. So what I am arguing is we need to move forward with a decision. The State has two (2) full-time staff people here working on an islandwide habitat conservation plan, and they are asking the question, how comprehensive is your plan going to be? Kauai, why have you moved forward focused only on lighting when you have other issues where you have responsibilities, and that is the kind of dialogue that I want us to continue to have. Thank you. Chair Asing: Thank you. Any further discussion? If not, I would like to open it up to the public. I believe there are some public members who wanted to speak on this item. Thank you Kylan. With that, Bruce? There being no objections, the rules were suspended. BRUCE PLEAS: Bruce Pleas for the record. Going to the agenda item... to give an update on the CHP or CHCP. I never really got an answer to two (2) questions. One, is the plan for parks only or is it across the board? Also, there was really no answer to Chairman Asing's question of when does it start? Where are we now? And where are we going? I would be interested in that. The other one is that... as we have the budget coming up and if we have a definition and I know you are going to be going through this is what the Councilman Kawakami's communication and stuff, we will be getting to this, but we need to look into the plan... how much is it going to cost for all our wind alternate energy ones and also for water and sewage. We need to bring those departments in because if we are COUNCIL MEETING • - 19 - ~ January 28, 2009 going to be going, we are going to have to look at the entirety, so I think that would be discussed and looked at in the near future I hope. Hopefully before the budget, so you have some idea where to go during the budget time. Thank you. Chair Asing: Thank you. Mr. Furfaro: I would like to answer his question. Bruce, thanks for bringing that up. I believe Mr. Asing was right on target. I believe a summary here that the plan was to address County facilities, so that we can get money. The potential is over a million dollar for an entitled plan and where are we going. The Administration still hasn't answered our question. Are we going to partner with other agencies, so that we don't duplicate. It is very serious here. Mr. Bynum mentioned Kaena Point, they have no lights, but on a recent visit to my family home in Makaha, they now have a fence for endangered species on the point. Our situation is, these birds have no predators on Kauai. We have no mongoose that is why in Kaena, they put the fence up, so we have a bigger opportunity to be able to protect the species and we need an overall plan. So I think in the dialogue, those two (2) questions that the Chairman asked were somewhat answered, but we are going to put a new communication in on Mr. Kawakami's Energy Committee to take it further. Thank you for letting me answer that Mr. Chair. Chair Asing: Thank you. With that, Makaala? MA_KA_AT.A KAAUMOANA: Aloha. Makaala Kaaumoana for the record. I testified this morning on behalf of my position as Vice Chair of Hui Hoomaluikaaina. We have been working behind the scenes on this issue with Earth Justice and I ran out of the room to call the attorney and say, what should I say. And this is what he said I should say. There is no scientific dispute that unshielded lights attract shearwaters. They circle and circle and circle until they crash and it is illegal. The shielded lights and directed down lights are what we need to do. Getting an incidental take permit is what we need to do. Yes, it is always a good idea to get a plan, but you have funded, you have seen it, you understand the issue, and we need to get the lights done. It is about the lights right now. I see the larger picture. I have testified on the larger picture at Planning Commission many times, but this is about the lights... to minimize the lights, to get the incidental take permit, to retrofit the lights down, so that they are not bright. I want to remind this Council because I didn't hear it in the discussion that this is a seasonal thing. Nobody is saying that this is a 12 month issue. October, November, December, and some years January... this is a seasonal thing and we have had disconnects at the County. We had conversations last year and the year before with some folks in Parks and they said, okay, we will control the lights, and then another sport came in, and said, oh, the field is free, let's use it and turned on the lights. So some of it is public education, but it is really for me right now about the lights. Mahalo. Chair Asing: Thank you. Tim? COUNCIL MEETING. - 20 - • January 28, 2009 Mr. Bynum: I just want to say that I don't disagree with you that the lights are critical. I think what we are seeking is and we have appropriated money. We have lobbied the State and got State money to address the lights. I think part of what we want is the powers (inaudible) to say, here, we accept your design, go for it, go it, get it done, and we are not going to come back later and tell you, you did it wrong, right? (Inaudible)... we want to move it, we want to take our responsibility, we want to shield the lights, we funded it, but give us a clear answer that this will address the issue. I wanted clarification about are we funding just lights or are we looking at the bigger picture. I think we are going to have further dialogue, so I just wanted to say that I don't disagree, but it would be really nice if somebody at the State and Fed said, yes, that is a good plan. Put those lights in and move. Ms. Kaaumoana: And I am representing the constituency that says, then you know I believe in good planning, but this is a situation where we can't wait for everybody to kind of agree. Shielding them, pointing them down, getting them in is what needs to happen now. We lost a lot of birds this last season and I, for one, have had reports from save our shearwaters telling me, well, we are picking up fewer birds, and trying to justify the fact that we are doing something right. No, there are fewer birds in the sky. Mr. Bynum: That is exactly right and the question... and we won't get to it today, but what are our current habitat conservation plans? What are we doing specifically to protect the habitat and it is very little... the answer is. very little... NTBG is doing... is proposing doing some, but that is kind of surprising to some people... oh, we have this big effort, we have to decide how to fund it and how to do it, but currently we are not putting a whole lot of funds into actually preserving habitat as the numbers dwindle. Ms. Kaaumoana: We do have examples Councilman Chang of what the shield looks like and what, you know. I mean I agree with you that there is not a lot of past to this process. We do have examples of what works and what is in other places. This isn't rocket science. Let's do what we know how to do now and thank you for spending the money. Chair Asing: You know, while I agree with you, I don't believe that the... as an example, the Parks Division has a clear understanding with our consultants who is working with the Federal government on exactly what is permissible. Until today, I believe that there is no clear guideline on what is, in fact, permissible, and that is the big issue. So I would like to say that while we are saying, why can't you be just clear and tell me what to do, but we cannot get that information on exactly what we can do at the stadium to meet the requirements. We can't even get that from the Federal government. They can't even tell us, yes, if you do this, you will comply, so that is how difficult this problem is. It is not as simple as we want to make it be. So it is a little discouraging that we have those COUNCIL MEETING • - 21 - ~ January 28, 2009 kinds of conditions, but, you know, we are faced with it, and we will try to do the best we can. Thank you. Ms. Kaaumoana: That is all that we ask. Thank you. Chair Asing: With that, Glenn? Oh, Dickie, you want to respond? Mr. Chang: Makaala, thank you very much. I just wanted to mention that I have been blessed to be a part of the save our shearwater program for probably six (6) or seven (7) years in conjunction with KIUC, and now with the Kauai Humane Society. This year, they were able to release and heal a little less than 400 birds and it might have been a little less than last year. So you said, maybe because it is fewer birds that are flying around. Talking to different people, not experts, but, you know, these birds don't come to shore to mate for five (5) years or so. Three (3) to five (5) years or so, so a lot of that had to do with the breeding patterns and the changing of the global warming or the water temperature or what have you, but during the period of September 15 through December 15, that is the official shearwater season... that quarter of the year that you make reference to. But during that period of time, interestingly, the weather for most part was nice. The skies were clear, so you either had a full moon, you know, a half a moon, or three-quarters of the moon, but it clearly showed the birds the way out to sea. Ms. Kaaumoana: Uh huh. Mr. Chang: So that is something that was a variable in which case there were probably less birds on Kauai because the skies during that period was clear, so it was clear to the bird that they can fly straight out to the ocean with the reflection. So that is part of discussion that, hopefully, was one of the main reasons that we saw less birds. In my opinion, public education has gotten extremely well received. One being the Hawaii Hotel & Lodging Association... the hotels have been actively asking their guests to turn off the lights when they are not in the room, but importantly, when they are in the room, to draw the shades... the cruiseliners that we had were also educating their people because a lot of the shearewaters were actually falling on the ships itself, but the hotels have done a remarkable job and many businesses because what they have done was they have created makeshift stands in which case, the next day, security can then bring it over to the Fire Department, and at that time, they can be rehabilitated, and then released. So the public education is unbelievable, but most people on this island, nine (9) out of ten (10) own some sort of pet, and because they are pet lovers, they have been adopting the shearwater by having, you know, boxes and towels and the appropriate things they need if they see them on the road. So I think the community is very well educated and many people have gone above and beyond to save our shearwaters. Thank you. Chair Asing: Thank you. COUNCIL MEETING. - 22 - ~ January 28, 2009 Ms. Kaaumoana: Thank you. Chair Asing: With that, Glenn? GLENN MICKENS: For the record, Glenn Mickens. I agree with Makaala that I think the issue will have to be addressed one thing at a time and I agree with Tim and the rest of you guys, say, hey, you are going to have to look at the big picture to find out what it is. As Kaipo said, the Federal government can't even give us clear guidelines on what is going on. You know, I am not sure how you are going to unravel this whole picture, but it does like Makaala said, I think it is critical for the birds sake that it is going to have to be addressed. My concern also is the funding of this thing. I think like 99% of our facilities down there like at Vidinha Stadium and they haven't put the lights at the baseball field, but for baseball, soccer, football, 99% of that is .State operations. The State, it is their obligation to be... I know you guys have brought this up many times about trying to get the State to fund these things, and they keep saying, and we'll give us half or whatever. It is County guys using it, but it is still... it is still... there is the obligation to take care of it. So, for me, in the funding part of this thing, I would still push the State to say that, hey, you are the guys that should be... you have to cut the lawn, you have to maintain these things, the schools, and everything else, why shouldn't you foot the bill then for retrofitting these lights at these stadiums. And if there is County only facilities, the other parks, then it is our obligation, then I see where the County taxpayers should be. So this is my concern and I think it should be pushed, but you got your work.cut out for you trying to unravel this thing, so you get a clear definition of what it is that you are supposed to do. Thank you. Chair Asing: Thank you. Is there anyone else? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: With that, Councilmember Kaneshiro? Mr. Kaneshiro: Again, for the members, the motion will be to receive this item, so at this time, I would like to make a motion to receive unless there is anyone else that wanted to have additional comments or have discussion. Mr. Kaneshiro moved to receive C 2009-56 for the record, seconded by Mr. Kawakami. Chair Asing: Any other discussion? Councilmember Furfaro? Mr. Furfaro: I will let Mr. Kawakami go first. Mr. Kawakami: Thank you Councilmember Furfaro. Thank you Council Chair. I just want to note that I will be sending a communication COUNCIL MEETING • - 23 - • January 28, 2009 recommended by Councilmember Furfaro and Councilmember Kaneshiro to the Administration to get an update on the comprehensive HCP plan to see what it entails and what it covers. Thank you. Chair Asing: Thank you. Any further discussion? Councilmember Furfaro? Mr. Furfaro: You know, I also want to say that it is something that we need to bring our Federal legislators to their attention as well because the specs and the standards are not really clear. You know, the birds are seasonal birds, September 15 to December 15. Football is a seasonal game. You know, that is where the conflict exists, but the other part of the question for the Parks Department is not only when we determine what type of light and down lighting will they allow, we have to also then find out that the referee can see if there is a penalty. I mean we have to agree whatever that light spread is, that it is, in fact, acceptable to actually play the game. That has to be part of that question too. I also want to point out that we do have, as Councilmembers and for the public, we do have an eight (8) minute rule regarding testimony on any one particular item and somebody should be allowed to use that period of time, but there is a rule, so thank you. Chair Asing: Any further discussion? Mr. Kaneshiro: Just good comment Councilmember Furfaro. I saw Lenny shaking his head there because I believe that he referees some of the football games also, so we have a person here that is in charge of this department that also referees some of the games, so I think we are in pretty good shape at this point. Chair Asing: Without further discussion? All those in favor say aye. The motion to receive C 2009-56 for the record was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At this time Mr. Chair, we are back on page 3 of the Council's agenda on communication C 2009-64. C 2009-64 Communication (01/20/2009) from Jennifer Luck, Executive Director, Kauai Public Land Trust, seeking $2,000,000 in funds from the County of Kauai to acquire a parcel adjacent to Black Pot Park in Hanalei which is currently owned by Mr. John Hodge (Tax Map Key No. 4-5-5-001:011): Chair Asing: I am going to be entertaining a motion to receive this item and the reason for the receiving is that we will be sending a COUNCIL MEETING. - 24 - • Janu 28 2009 communication over to the Administration for them to start the process, the money, but with that, let's have some discussion first. I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: We have the Executive Director from the Kauai Public Land Trust, Jennifer Luck and former Councilmember JoAnn Yukimura. Good morning and Mr. Chase. With that, let me just have you open up the discussion. JENNIFER LUCK, EXECUTIVE DIRECTOR, KAUAI PUBLIC LAND TRUST: Good morning and thank you so much for the opportunity to come before you today. Again, my name is Jennifer Luck and I am the Executive Director of the Kauai Public Land Trust. Mr. Bill Chase is President of the board and JoAnn Yukimura is also a board member. We are here today to seek funds from the County of Kauai towards the acquisition... a lot next to the Hanalei pier for the express purpose of expanding Black Pot Park. The property that you are seeking to acquire is owned by Mr. John Hodge and it is parcel lot number 11. I have a few slides. If you look behind you, here is a map of the area and the parcel that we are looking at acquiring is the parcel number 11. It is outlined in red and it is the last undeveloped coastal parcel there along the bay directly next to the pier. Mr. Hodge, we have been speaking with Mr. Hodge for several months now. He is a willing seller. The property was appraised at $4 million and he has agreed to do a bargain sale to the land trust for $3.3 million. Now the acquisition of this parcel is part of a larger vision for the land trust. We hope that this is the beginning of the expansion process. We also have been speaking with... pretty consistently to members of the resort group in Montage Resorts and they have confirmed their commitment to donating the parcel right on the river right there. It says, Princeville Development Company adjacent to the boat ramp. It is this one right there and the Hodge parcel is right there, and the pier is right there... the river is along here and then you have the bay and the ocean right along there. So we have... we speak regularly with the folks with Montage Resorts and resort group and, again, they have confirmed their commitment to donating this parcel for the express purpose of expansion of the park. So our vision is to not only acquire the Hodge lot, but to secure this lot right here, and then go after the acquisition of these three (3) lots as well which are currently owned by Mr. Mike Sheehan. We have decided to come before the Council today to begin the acquisition process for the Hodge lot for a number of reasons. Number 1, he is a willing landowner. He is a willing seller. He has agreed to do a bargain sale on the property which we feel is very generous, and there is an urgency surrounding this property. He has already obtained building permits and he is ready to build on the property, but has given the land trust about six (6) months to raise the funds to acquire the property. If we are unsuccessful, then he will go ahead and begin the building process. We have already gone before... we have some funding secured towards the acquisition of the Hodge lot. We appeared before the legacy lands COUNCIL MEETING ~ - 25 - • January 28, 2009 conservation commission in December, December 18, and requested $750,000 in funding towards the acquisition of this lot. Our project was ranked fourth which means that, essentially, we have been recommended to be fully funded. I believe you have a letter, a communication from Mr. Dale Bonar who has chaired the commission confirming that and also saying that the Board of Land & Natural Resources will vote on the commission's recommendations in February. They should be funding all eight (8) projects and, again, ours was ranked fourth and our request was $750,000. So at this point, we are very confident that that funding will come through. Again, we are asking from the County is $2 million in funding towards the acquisition. The acquisition price is $3.3 million. It was, again, appraised at $4 million and Mr. Hodge has agreed to donate $750,000 essentially of land value, so the sales price is now $3.3 million, and we already have $750,000 in funding. We are seeking $2 million from the County and we expect to get the remaining $550,000 from the Land & Water Conservation Fund. It is a Federal program administered by the State. We have spoken with them... the State administrator of that program, Martha Yench. I spoke with her yesterday in fact again and so long as we can get our application in quickly which we plan to do, and are currently working on, then we have an excellent chance of being funded by that program as well. Mr. Furfaro: Are there anymore slides? Ms. Luck: I actually have a picture of the parcel as well. That is the pier obviously and that is the current park. This is the parcel in question today which is the one owned by Mr. John Hodge. The picture is taken from Weke Road. It is on the makai side. It is the last undeveloped parcel along the bay there aside from the park obviously. Again, all of these parcels would be for the express purpose of expansion of the park and our vision is to then hand them over to the County to become part of the park. BILL CHASE: If I may, I'd like to emphasize the importance of the fact that Mr. Hodge is a willing seller. As the land trust, we work with private entities to work out deals that are... that work out both for the public and for themselves. We can't insist on or force any kind of a deal at all and we have been looking at Black Pot expansion for 10 or 15 years, and had a good bit of difficulty finding ourselves in a position where landowners are actually willing to cooperate at this level. Ms. Luck: Just to give you a little bit of an overview. The land trust, we were established in 1989, and our mission is the preservation of places of the heart. The expansion of Black Pot Park is our current top priority is also the top priority of the Open Space Commission. I believe you have a letter confirming that sent by the Chair of the Open Space Commission. So, you know, this project, as Bill said, we have been working on for a number of years, and we feel that right now, the stars have aligned so to speak and we have a willing seller. We have funding that we... some funding that we have secured and a good chance of some COUNCIL MEETIN~ - 26 - • January 28, 2009 source of additional funding. We really believe this is the beginning of fulfilling the vision for this park which is essentially doubling it or more than doubling it in size. So, you know, this is just the first parcel that we plan to acquire. We plan to continue to work on fundraising towards the acquisition of the Sheehan lots and working with Montage Resorts on the acquisition of their lot as well. Chair Asing: With that, I'd like to open it up to Councilmembers. Any questions Councilmembers? Councilmember Furfaro? Mr. Furfaro: I may have a few questions from the land trust people, but so do I understand your intention, Mr. Chair, is... do I understand your intention, Mr. Chair, to perhaps receive this item, so that it goes over to the Administration, and we identify fund source and so forth at that time to the Administration? Chair Asing: Yes. Mr. Furfaro: Is that your intention? Chair Asing: Yes. Mr. Furfaro: Thank you very much. Chair Asing: Any questions? Go ahead Tim. Mr. Bynum: Have you had discussion with the Administration and do they have a position on this request? Ms. Luck: We have met with Gary Heu and Beth Tokioka of the Administration and they are certainly supportive of the project and supportive of the request and, of course feel that it is up to the Council's discretion where the fund would come from... if it would be all open space funds or a combination, but are in support of the project. Mr. Bynum: So we would anticipate that they would be recommending funding of this project? Ms. Luck: I believe so, yes. Mr. Bynum: Thank you. Chair Asing: Any other questions Councilmembers? If not, thank you very much. You have some questions? Mr. Furfaro: I did. COUNCIL MEETING ~ - 27 - ~ January 28, 2009 Chair Asing: Okay, hang on. Mr. Furfaro: No, perhaps I can hold it until you call the meeting back. Chair Asing: Thank you. Former Councilmember Yukimura? JOANN YUKIMURA: Thank you. I just want to say very briefly that as you all know, this is a place beloved by the community. It serves visitors and residents in large numbers. It hasn't been expanded for years and this is an investment in the future of our island, so I hope there will be a favorable response. I'd like to just pass out... this is a book by the trust for public lands on the economic benefits of land conservation. It says, you know, too often we hear that communities can't afford to create parks, preserve farms, conserve open space, and protect watershed landscapes. But as the trust for public lands, we know that conservation is not an expense and is an investment that pays many dividends including economic ones and this study shows that strategic land conservation promotes sound economic growths, so I will just leave that for your perusal in your free time. Thank you. Chair Asing: With that, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: My apologies. I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Glenn? GLENN MICKENS: Thank you Kaipo. I would just like to sincerely thank these people for their efforts preserving Kauai. I support what they are doing 100%. Thank you. MAKAA_A KAAUMOANA: The real reason for my drive... it never fails that there is something else interesting on your agenda. Aloha, I am Makaala Kaaumoana and I am the Executive Director of the Hanalei Watershed Hui and I represent that organization, and the various community constituents that participate with us in the support of the ecology and economy of Hanalei. I am also representing my `ohana. We own land in Hanalei and my husband was born and raised. Mahalo for your service. All of our parks are special. Their place names tell us why. Black Pot is one special to many on our island... residents, visitors, statewide events, and cultural practitioners as well. It sits between Hawai`i's only American Heritage River and the humpback whale marine sanctuary which are two (2) national treasures. Acquisition of this adjacent parcel is an opportunity to COUNCIL MEETIN~ - 28 - ~ January 28, 2009 support the environment in this place and islandwide as it provides greater community engagement in the natural environment, and provides for expanded family time, quality time, in a place with a great story. I also bring a message today from Cathy Ham Young who has adopted the park on behalf of her `ohana and father's colorful history there. She asked me to express her strong support for this request for funding. She is in Honolulu today working with hui kalo. As a person with many interest in this place, I testified today in strong support of this request for funds to acquire this critical piece in the Black Pot and Hanalei puzzle, and community vision for this place. Mahalo for your support for this acquisition. Any questions? Chair Asing: Any questions? If not, thank you. Is there anyone else who wants to speak on this item? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kawakami: You know, I just had a question for Jennifer. Chair Asing: With that, I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Jennifer, please. Mr. Kawakami: Hi, good morning Jennifer. You know, my question is, is it your intent to transfer this property over if it should be acquired back to the County with the understanding that it is going to be a park with some form of parking or is just going to be park with no parking provided? Ms. Luck: Right, our intent is to transfer the land to the County and we then feel really... that the County can go through a park planning process if they so choose to best determine how to use that property. Mr. Kawakami: Okay, thank you. Chair Asing: Any further questions? Yes, go ahead. Ms. Kawahara: Hi Jennifer. You did mention that the motivated seller does have a timeframe of six (6) months, and I was just wondering where that six (6) months came about and why. Was it just a pressure point (inaudible). Ms. Luck: His building permits expired in March or expire in March, and he got a six (6) month extension, so that is where that timeframe comes from. COUNCIL MEETING ~ - 29 - ~ January 28, 2009 Ms. Kawahara: Okay, thank you. Chair Asing: Any other questions for Jennifer? If not, Jennifer, I just had one question. I noticed that your supposedly not... not supposedly. You are, in fact, fourth on the list, number 4. I was just wondering how much money do they have available to give out because there are eight (8)... supposedly eight (8), but I see seven (7) listed projects. Ms. Luck: Right. Chair Asing: So what is the total amount that they have available to give? Ms. Luck: $4.7 million and I believe with that amount, all of the projects listed there will be fully funded. Chair Asing: Okay, so they have available $4.5? Ms. Luck: No, $4.7 million I believe is in the legacy lands fund right now. Chair Asing: Thank you. With that, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Any further discussion? Councilmember Furfaro? Mr. Furfaro: Yes, I want to agree with the speakers that talked about the value of what some of us (inaudible)... the next generation knows as Black Pot. The generation before that knows it as the landing, but it is... this is one piece of what could be a puzzle that needs to be assembled for us to get to a very comprehensive plan for the park and eventually address even the parking issues that we have. I have a commentary that was done through a press release from Montage hotels that was mentioned about one of those pieces was published in The Garden Island. Jade will hand it out to you just so you can reflect on that commitment. If the County came up with the masterplan for the park, they, in fact, would be willing to make a contribution. I only have one of these colored maps, so I will ask later if they can distribute to you the piece that the land trust has come in front of us is in red. The existing park is shaded and then in the brown area was a piece that we acquired from the State which was started under a petition by Mayor Baptiste and finished under the Administration of Mayor Asing at the time that added the accretion of land to the point, so that it could come under the jurisdiction of the County. The next piece is in yellow which is the piece that is referenced in the Montage press release. So it is also important as we look at the bigger possibility of acquiring through other opportunities expanding the park inland. There is an old COUNCIL MEETIN ~ - 30 - ~ Janu 28 2009 ~'3' easement there that shows that it could eventually also have a second access into the park area one day, so that the traffic does not go through Hanalei Town. I just wanted to share that because it is truly as this brochure says, an economic benefit to conserve land for public use, but more importantly for some clarity on the pieces, you know. I hung out and worked in Uncle Kalani's taro patch a long time when this was Black Pot, and of course, my father-in-law was the only certified coastguard captain for the Hanalei Estuary, so there is a lot of sentiment here as well, but I would just like to have that passed out, so people can see all of the potential puzzle pieces. Chair Asing: Thank you. Any further discussion Councilmembers? Councilmember Kawahara? Ms. Kawahara: Yes, I just want to recognize the fact that we do have this Open Space Natural Resources Fund and that it was an amendment approved by the Kauai voters. What it did was it appropriated a minimum of a 1/2 of 1% of the certified real property tax revenues to this fund. I want to applaud the vision of the public that wanted to do this and understanding that it was a tax, but understanding that it was going to be going to a fund where we could preserve land like this where it would be unavailable otherwise. I want to thank the public and the fact that we are able to do this is a tremendous, tremendous thing to have the ability to do. Thank you. Chair Asing: Thank you. Any further discussion? Mr. Furfaro: So Mr. Chair, I assume with part of your request to receive this for now, then we are going to get other details from the County appraiser and all of those other parts if necessary? Chair Asing: Yes. Mr. Furfaro: Okay, thank you. Chair Asing: Yes, but we will be sending a communication over to the Administration supporting the purchase. We will be doing that and then we will be asking for a money bill because we need to do a money bill to get the money over. There are other legalities that needs to take place, legalities such as, an example, how does the money get over from the County to the trust in what respect, so there are other legalities that need to be worked out on the process. But you can be assured that the Council as far as I know unless I hear anything else is in support of the acquisition of that property. With that, Councilmember Bynum? Mr. Bynum: With that comment that you just made, I wasn't going to comment because we have to go through a process here, but there is no question about the value of each of these parcels for the community, and the desire for us to acquire, hopefully, all of them. But I still have questions about different COUNCIL MEETING ~ - 31 - ~ January 28, 2009 aspects of that puzzle and making sure that this is the best allocation of County funds to address the issues at Black Pot. So in concept, certainly supportive of acquiring this land. I still have questions about if we have limited resources, that is the... you know, questions about other pieces of the puzzle, their current status, and I assume we will have time to address in future communications. Chair Asing: Sure. Mr. Bynum: Thank you. Chair Asing: Any further discussion? If not, do we have a motion now? Mr. Furfaro moved to receive C 2009-64 for the record, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Thank you. Mr. Nakamura: At this time Mr. Chair, we are up on... we are back on page 4 of the Council's agenda which is a communication for approval C 2009-68. C 2009-68 Communication (01/12/2009) from the Treasurer, Department of Finance, requesting Council approval to receive and expend approximately $7,099 for computerization (a dedicated server, operating system, virus protection, etc.) to support two (2) Automated Driver License Testing System (ADLTS) kiosks, from the Department of Transportation for commercial driver testing purposes: Mr. Furfaro moved to approve C 2009-68, seconded by Mr. Bynum. Chair Asing: Any discussion? Yes. Mr. Furfaro: I guess along the lines for the legal department as well. I am just so worried today and I learned this from Councilmember Rapozo that when you share data about any potential exposure, you know, that was one of Mel's areas of expertise. So I do intend to vote to approve it, but I just think it is a question we ought to ask the County Attorney. Chair Asing: Thank you. Councilmember Kawahara? Ms. Kawahara: Thank you Council Chair. As a librarian, we also have issues with data and privacy, so I have been trying to read the fine print of the contracts, and I agree with Councilmember Furfaro that we just need to be sure about once we are accessing that data and making sure that it remains secure. Thank you. Chair Asing: Thank you. Any further discussion? All those in favor say aye. COUNCIL MEETIN~ - 32 - • January 28, 2009 The motion to approve C 2009-68 was then put, and unanimously carried. Mr. Nakamura: On the next two (2) communications on page 4 which is communication C 2009-69 and C 2009-70, if we could move these matters to the end of the agenda following the executive session briefings. Chair Asing: Thank you. C 2009-71 Communication (01/20/2009) from the Prosecuting Attorney, requesting Council approval for the Director of Finance to create a new Operating Account for Collection and Expenditure of Discovery Document Billing Fees to offset various operating expenses (such as paper, copy machine toner, etc.) as of January 1, 2009: Mr. Chang moved to receive C 2009-71 for the record, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next matter? Mr. Nakamura: The next matters for approval are legal documents. LEGAL DOCUMENTS: C 2009-72 Communication (01/06/09) from the Executive on Transportation, requesting Council approval to indemnify Central Pacific Bank for the acceptance of fees from the County's armored car service provider: • Armored Car Messenger Service Agreement to Deliver Bags to and from Central Pacific Bank with Elyte Pacific Services: Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-72, seconded by Mr. Chang, and unanimously carried. C 2009-73 Communication (01/15/2009) from the Mayor, requesting Council approval to obtain a portion of KMN LLC, Hawaii Limited Liability Company, for roadway widening (TMK (4) 4-1-006:016) as follows: • Dedication Deed from KMN LLC, Hawaii Limited Liability Company to the County of Kauai which conveys a roadway lot (Lot 19-C) for roadway widening purposes. • Addendum to Dedication Deed from KMN LLC, Hawaii Limited Liability Company to the County of Kauai which also includes removing or altering any encroachments that may exist on Lot 19-C: Mr. Kawakami moved to approve C 2009-73, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters on page 5 of the Council's agenda are two (2) claims. COUNCIL MEETING • - 33 - • January 28, 2009 CLAIMS: C 2009-74 Communication (01112/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Lydia Carveiro for medical expenses, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kawakami moved to refer C 2009-74 to the County Attorney's Office for disposition and report back to the Council, seconded by Ms. Kawahara, and unanimously carried. C 2009-75 Communication (01/14/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Marv Rohrer for property damage, theft and burglary losses, travel expenses, and loss of salary, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kawakami moved to refer C 2009-74 to the County Attorney's Office for disposition and report back to the Council, seconded by Ms. Kawahara. Mr. Furfaro: For the purpose of some of the new members, I relay to them that anything that is settled under an amount of $5,000 by the County Attorney does not come back to us, so I just want to make sure that you don't look for it on a future agenda if it was settled under the amount of $5,000. Ms. Kawahara: Thank you. The motion to refer C 2009-75 to the County Attorney's Office for disposition and report back to the Council was then put, and unanimously carried. COMMITTEE REPORTS: BUDGET & FINANCE CONIlVIITTEE REPORT: A report (No. CR-B&F 2009-01) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2297 A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUA`I COUNTY CODE 1987, AS AMENDED, RELATING TO KULEANA LAND," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Kawakami. Mr. Furfaro: I did pass out a letter that I sent to the Administrator on OHA making a request for them as this moves forward to make some time available for kuleana deed holders here on Kauai and I have circulated that request. Chair Asing: Thank you. COUNCIL MEETIN~ - 34 - • January 28, 2009 The motion for approval of CR-B&F 2009-01 was then put, and unanimously carried. (See later for Bill No. 2297) PUBLIC SAFETY/ENERGY/INTERGOVERNMENTAL RELATIONS CONIlVIITTEE REPORT• A report (No. CR-SEI 2009-01) submitted by the Public Safety/Energy/Intergovernmental Relations Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2296 A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B 2008-672, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Police Department: $65,000 for Consultant Services and $20,000 for Advertising)," Mr. Kawakami moved for approval of the report, seconded by Mr. Furfaro. Chair Asing: Hang on. I'd like to suspend the rules. There being no objections, the rules were suspended. GLENN MICKENS: Thank you Kaipo. I know this is going to come up on bills for second reading. I have a testimony for it. Should I do it now or would you prefer to wait for the bill to come up for second reading? Chair Asing: It doesn't matter. Whichever suits you Glenn. Mr. Mickens: Thank you again Kaipo. For the record Glenn Mickens. You have a copy of my testimony. It is not that long. I'd like to read it for the viewing public for the audience. I have testified twice on this bill and given the Council a lot of information about the success that the other island's Police Departments have had in the recruitment of officers. Councilmember Chang has agreed with me that it would be prudent to us to find out what these other Police Departments are doing to be successful and use these methods... their methods. We have over 16% vacancy rate on KPD from being at full force and as Jay said, the reasons are multiple, but must be addressed. I am not... Jay, I am not trying to put words in your mouth. Mr. Furfaro: You have never been successful at that anyway. Mr. Mickens: I understand. The point that I am making with the $85,000 expenditure being asked for by this Council is to factually find out if we are spending the money wisely. If the other departments have been successful by COUNCIL MEETING • - 35 - • January 28, 2009 spending their budget in this manner, then go for it. But I do have serious doubts that this is true since their success rate is far better than ours. One suggestion that I have heard is to make it incentive wise for this consultant that we are offering $65,000 to find new recruits. In other words, instead of giving him $65,000 in a contract form and I presume that is the way that it is done... give him say, $5,000 for each recruit he signs up or some monetary figure like that... if he just gets the $65,000 no matter how many recruits he finds, he will have no incentive to find as many as he can with the added bonus waiting. Basically, I am saying that we can continually okay funds for a project without fully investigating what kind of bang we are getting for these bucks. I did some research and gave you information on other PD's, but in the Committee you passed this bill without even checking to see what they are successfully doing and the question that I am asking is why? Jay's amendment is a step in the right direction and I totally support it, but I would still like to see the (inaudible) as I have outlined above. Any questions? Chair Asing: Councilmember Furfaro? Mr. Furfaro: First of all, at the last meeting, I did thank you for some of the points and we did remove specifically consultant and we are thankful for the research you did, but the plan is to actually... as we get into next month for the operating budget. We are asking from the other counties some information on a comparative basis on what their advertising budget is. I did not intend to hold up this bill, but more approach your questions about advertising budgets, the comparisons, as we come up with our budget in March. Mr. Mickens: But then... Mr. Furfaro: I understand what you said and I gave you the answer. I did not intend to not vote on getting this money out because the shortage... you know, we have 7.7% unemployment on this island as reported yesterday. A highest level I think they said in 21 years and that means there is manpower that may want to reconsider the possibility of coming into work for Kaua`i's finest and be a recruit, therefore, they need the money now. But your question was excellent and I am only answering your question. We are going to get that information for the March budget, but I did not intend to hold up the bill. Mr. Mickens: But aren't you doing what you have pointed out in the past? Ready, fire, aim Jay? Mr. Furfaro: I've used that term once and I regret using it because I have been quoted on that by several other Councilmembers and yourself. Have you ever regretted saying something? I regret saying... Mr. Mickens: I thought it was a very wise saying Jay. I thought it was extremely to the point. I am complimenting you for it, but you want to take it back, I don't understand that. COUNCIL MEETIN~ - 36 - ~ Janu 28 2009 ~`Y , Mr. Furfaro: Well, let's say that I thank you for your research and we will make those comparisons at budget time, but I felt the money was needed now since the potential availability of Kauai personnel is here. I think another thing that people have to realize is, there is potential employees of the Kauai Police Department that are on island now. They may be working in construction and so forth, but you need to forget that a lot of people leave in construction work to go work projects on Maui and Honolulu, and so forth, but given the opportunity to stay, they might stay. Mr. Mickens: Well, I agree 100%, but that is all the more reason that I think before you give them their $85,000, you examine just exactly what you are asking. Mr. Furfaro: I examined it and the first money that we gave them in my opinion was manini. I have no more comments. Chair Asing: Thank you. Mr. Furfaro: Thank you Glenn. Chair Asing: Councilmember Chang? Mr. Chang: Thank you Glenn. Just as a little update, I just wanted to let you know that the recruitment advertising budget for Maui is $250,000. The way that they are able to fill their positions is they have one active Lieutenant, one active Sergeant, three (3) Police Officers specifically assigned to community relations which means recruiting. Presently, they have 37 vacancies as you mentioned. There is about 10% opportunity there. The Big Island Police Department is piggybacked by the County's Human Resources, so in other words, they have two (2) different ways of promoting and doing public relations with the Police Department and with their Human Resources Division. I couldn't find out what the total tally of their budget, but thus far, they already spent $75,000 on recruiting. They have a training Captain, an Administrative Major, and two (2) Officers that share the recruitment responsibilities. Here on Kauai, sadly, we have one Sergeant that overlooks the whole program including the recruitment. But on the good news is, today as we speak, 13 hopefully new Officers, 13 will be given the clean slate, and request for their employment. In other words, they passed everything that we need to do, so hopefully all 13 today will say, yes, we would like to be a Police Officer of our Kauai Police Department. That is great news and just as an update, there is approximately 40 qualified screened and ready to go for the next recruitment class. Of that 40, they expect and hope that 25% will be new Officers. The 25% is over the national average as far as being able to succeed in a program as such. So our Police Department is going through the steps although a little undermanned, so money is important to get people actively involved with this recruitment process for the island of Kauai. And something of interest is that all • • COUNCIL MEETING - 37 - January 28, 2009 the counties and I believe nationally the Police Departments are having a little bit more difficult time recruiting because, normally, there would be a lot of people from our armed services... the army, the navy, the marines, or what have you that want to get back into civilian life, and then do Police work or what they were trained for. But because of the economy as all of us know, many of those potential are reenlisting right now because of incentive packages. And speaking of incentive packages, there was at one time that the Maui Police Department was giving upwards to about $5,000 and I don't know what the amount is now, but as a signing bonus in on their... Mr. Mickens: $5,000? Mr. Chang: I believe it was somewhere around $5,000. So there are many different challenges and one interestingly is many of our military are opting to, once again, reenlist, so that is, yet, another smaller pool that we have from. Mr. Mickens: And how do you feel that it fits in with this $85,000? Your research in these other departments, how do you feel that this fits in with that? Mr. Chang: Well, I would like to talk to, of course... I got my information from Deputy Chief Mark Begley who for years in my previous time, I helped out with some recruitment. But I would really like to talk to him about what they have in mind with the consultant, and what is his past history of the success rate. But, you know, I just want to say, I would like to be able to specifically ask him for his guidance and his thoughts, but I do really do want to report on a positive note that we have 13 Officers that is going to be officially offered jobs today, and I hope that all 13 take it. They passed it, they qualified, and as he mentioned, there are 40 that are standing by for this next recruitment class. So it looks as though they have been their best to find these potential people. Sadly, during Chief Lum's administration, 14 Officers either retired or found other opportunities, and during Acting Chief Arinaga's stint for what reason of retirement or what have you, 191eft, so that was a total of 33, so we are slowly getting our potential people back up. Mr. Mickens: Your point about the incentive, that $5,000, that sounds real interesting... I know... when I sat here before the Police Commission one time, they made the point that Bellaire, California gives a $10,000, and they are paying I think $60,000 to start with. And, you know, the Officer made the statement that it is almost impossible for them to compete with this. Was Maui... who was it you said was given the $5,000? Mr. Chang: The Maui County, in the past, was given an incentive of $5,000 as a sign in bonus. • COUNCIL MEETING - 38 - January 28, 2009 Mr. Mickens: So do you think that would help our Police Department? Mr. Chang: I think any sort of sign in bonus would help anybody... not just the Police, but any opportunity for employment. However, I would rather hear what the plan is for the Police Department instead of... I mean any incentive would be an good incentive, and I am just saying that I don't believe that there is an incentive right now, but I am very pleased to know that, again, the 13 Officers and approximately 40 are standing by for the next class, and I do believe that there are people behind that 40. Mr. Mickens: Right. Mr. Chang: So that is very, very positive I believe for the entire County and the Kauai Police Department. Mr. Mickens: Thank you for your research. I appreciate your information. Thank you. Chair Asng: Thank you. Is there anyone else? If not, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: With that, we have a motion on the floor and a second. All those in favor say aye? The motion for approval of CR-SEI 2009-01 was then put, and unanimously carried. (See later for Bill No. 2296, Draft 1) Chair Asing: The next item please? Mr. Nakamura: The next matter for approval are Resolutions, but I think we are right about at the caption break Council Chair. Chair Asing: We are going to take the caption break now. Thank you. There being no objections, the Chair called for a recess at 10:57 a.m. The meeting was called back to order at 11:11 a.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, can we have the next item please? Mr. Nakamura: At this time, we are on resolutions on the bottom of page 5 of the Council's agenda. COUNCIL MEETING • - 39 - ~ January 28, 2009 RESOLUTIONS: Resolution No. 2009-06, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE BOARD OF REVIEW (Richard Koenig, Jr., Second Term): Mr. Kawakami moved to adopt Resolution No. 2009-06, seconded by Mr. Kawakami. Chair Asing: Any discussion? I'd like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Bruce? BRUCE PLEAS: Bruce Pleas for the record. I guess I missed C 2009-57 and 58. Has that already been... Chair Asing: Which item was that? Mr. Pleas: The second page which is C 2009-58 and 58. You already went through those? Mr. Kaneshiro: Yes. Mr. Pleas: Yea, I was planning on speaking on that on a broad sense of Commissioners. I guess I missed my time, so I would ask for three (3) minutes with the Chair's blessing, if not, I will just have to come up for the few people that I really didn't want to talk specifically on people, but I guess there are two (2) of them that I would have to come forward on. Chair Asing: Why don't you speak on one of those appointments when we get to that. Mr. Pleas: I am sorry that I missed that first part, but there is next year. Chair Asing: Thank you. The meeting was called back to order, and proceeded as follows: The motion to adopt Resolution No. 2009-06 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, COUNCIL MEETIN~ - 40 - ~ January 28, 2009 AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Resolution No. 2009-07, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE CHARTER REVIEW COMMISSION (Sherman Shiraishi, Second Term): Mr. Kawakami moved to adopt Resolution No. 2009-07, seconded by Mr. Kaneshiro. Chair Asing: With that, Bruce? There being no objections, the rules were suspended. Mr. Pleas: Bruce Pleas for the record. I have been following the Charter Review Commission pretty regularly through the last two (2) Charter Commissions. I was wondering if any of the Councilmembers asked Commissioner Shiraishi if he plans on being at the meetings past 6 p.m. It seems that they start at 4 p.m. and Commissioner Shiraishi leaves at 6. Everything has to be done by then and we have to leave. It has resulted in a loss of quorum at times and I feel that a Commissioner that is... wants... if some person wants to be a Commissioner, should dedicate the time because the Charter Commission is not something that can be done in two (2) hours once a month. If you go back to the first Charter Commission, they spent many, many, many hours and I was hoping that somebody would have asked him that. If not, you may want to revisit this one. Chair Asing: Thank you. Mr. Mickens: I just want to reiterate what Bruce said. I have been to almost all of the Charter Review Commission... for the record, Glenn Mickens. What he said is 100% true. Mr. Shiraishi has a time limit of 6 o'clock I think he has to leave. He has left and they didn't have a quorum. They couldn't even officially dismiss the commission at that time because they didn't have a quorum to be able to do it. So, anyway, I think it is something that should definitely been taken... like Bruce said, it is extremely important that, you know, these Commissioners... if they are going to sit on these boards or commissions, I think it (inaudible) to be able to sit there until the thing is finished on whatever time it happens to take, so anyway, thank you. Chair Asing: Thank you. Ms. Kawahara: Chair, thank you for letting us know. Thank you Bruce and Glenn for letting us know about that. I wasn't aware of it and I am curious as to how... if it was something that I was concerned about how to address it at this point. Chair Asing: Send a communication to the board. COUNCIL MEETING ~ - 41 - ~ Janu 28 2009 ~'3' , Mr. Mickens: One other thing on... Ms. Kawahara: This person is going to be sitting on? Mr. Furfaro: He is currently on. I also want to say that I did query this and I understand that he did give notice that he had to leave at 6 p.m. The fact of the matter is that I do understand that he has, at times, stayed beyond 6, 6:15 or so. But, you know, when you submit... just like we do here on the Council. If you submit an excuse letter, it is usually accepted and I think the advice... if you want to send a communication to the Mayor asking them to reiterate the need in the communication, but in all fairness, I think I do want to point out that I did query it and it was brought to my attention, and there were times that he stayed a quarter of an hour to try and meet the notice that he gave. Mr. Mickens: But the difference, Jay, when you... Mr. Furfaro: I didn't address you. I addressed the Councilwoman. Mr. Mickens: But when you let somebody go, you announce it. You know, he has this excuse, he is gone... Mr. Furfaro: And I am saying to you that I understand. Mr. Mickens, I am talking to the Councilwoman and I am saying that I looked into it and I understand he announced it and I had gotten verification. But if we want to send a communication, that is fine, but do not make assumptions because it wasn't announced and so forth to the public. The fact of the matter, he did make it known to the Administrator of Commissions. That is my understanding at this point. Chair Asing: Thank you Jay. Ms. Kawahara: Thank you for sharing that what you have... Mr. Furfaro: I did query this complaint. Ms. Kawahara: I will just probably follow up on what Councilmember Furfaro has said and I will talk to him. Mr. Mickens: Thank you. Chair Asing: With that, we are now on the... The motion to adopt Resolution No. 2009-07 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, COUNCIL MEETIN~ - 42 - January 28, 2009 AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next resolution for approval at the top of page 6 is Resolution No. 2009-08. Resolution No. 2009-08, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE COST CONTROL COMMISSION (Lorna A. Nishimitsu, Second Term): Mr. Bynum moved to adopt Resolution No. 2009-08, seconded by Mr. Chang. Chair Asing: I'd like to suspend the rules. There being no objections, the rules were suspended. Chair Asing: Bruce? Mr. Pleas: Bruce Pleas for the record. I was wondering if any of the Councilmembers asked Commissioner Nishimitsu whether she will abide this time by the Code of Ethics 20.02, Section D, which no officer or employee of the County shall appear on behalf of private interest before any County board, commission, or agency. She has been, over the last two (2) years before the Planning Commission that I know of. Chair Asing: Thank you. Mr. Furfaro: I want to say that I am not sure that this is referencing something that is retroactive. It is about the future. Your statement about retroactive is one that is not covered by that Charter amendment and even for myself, I have terminated my consulting services last year specifically not knowing this. But I do not think the attempt was something that was retroactive. Mr. Pleas: That is why I asked if you asked if she would be suspending those activities in the future. Mr. Furfaro: I understand, but I understood the way you posed the question that she was servicing over the last two (2) years. I do not believe it is retroactive, but that question should be directed towards the Ethic Commission. Mr. Pleas: I have thought about this and this is not an ethics... her... Commissioner coming before the Council or Commission is ethical. What I am looking at is a County Attorney where the Commission or Council allows a known Commissioner to come before them and accepts the testimony. COUNCIL MEETING - 43 - January 28, 2009 Mr. Furfaro: Okay, let's be very clear as I would suggest that that would be brought to the Ethics Commission because they can certainly raise the question. They can raise the question as you posed it to us. They are the enforcers, they are the individuals that would pose any sanction and so forth. But I just wanted to answer you the first time around Bruce and I want to tell you, I appreciate you overseeing these types of things in your role as a citizen, but the question is, it was not, you know, retro. As I said, in my particular case, I had three (3) groups that I do consultation work here on Kauai. If they have activities, I have terminated those service contracts last year in anticipation on this question. Chair Asing: Thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: The motion to adopt Resolution No. 2009-08 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next resolution for approval is Resolution No. 2009- 09. Resolution No. 2009-09, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE COST CONTROL COMMISSION (Sandy Sterker, Second Term): Mr. Bynum moved to adopt Resolution No. 2009-09, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next Resolution for approval is Resolution No. 2009-10. Resolution No. 2009-10, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE FIRE COMMISSION (Wayne Mukai, Second Term): Mr. Bynum moved to adopt Resolution No. 2009-10, seconded by Mr. Kaneshiro, and carried by the following vote: COUNCIL MEETIN~ - 44 - Janu 28 2009 ar3' FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-11. Resolution No. 2009-11, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE FIRE COMMISSION (George Simpson, Second Term): Mr. Furfaro moved to adopt Resolution No. 2009-11, seconded by Mr. Kaneshiro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next resolution for approval is Resolution No. 2009- 12. Resolution No. 2009-12, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Clifford L. Nakea, Second Term): Mr. Bynum moved to adopt Resolution No. 2009-12, seconded by Mr. Kaneshiro, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next Resolution is Resolution No. 2009-13. Resolution No. 2009-13, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE POLICE COMMISSION (Thomas Iannucci, Second Term): Mr. Kawakami moved to adopt Resolution No. 2009-13, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, COUNCIL MEETING ~ - 45 - • January 28, 2009 AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-14. Resolution No. 2009-14, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE POLICE COMMISSION (Alfred Nebre, Jr., Second Term): Mr. Kawakami moved to adopt Resolution No. 2009-14, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-15. Resolution No. 2009-15, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE SALARY COMMISSION (Randy J. Hee, Second Term): Mr. Kawakami moved to adopt Resolution No. 2009-15, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-16. Resolution No. 2009-16, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE SALARY COMMISSION (Tom Cooper, Second Term): Mr. Bynum moved to adopt Resolution No. 2009-16, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. COUNCIL MEETIN • - 46 - ~ Janua 28 2009 ry , Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-17. Resolution No. 2009-17, RESOLUTION CONFIRMING MAYORAL REAPPOINTMENT TO THE SALARY COMMISSION (Trinette P. Kaui, Second Term): Mr. Kaneshiro moved to adopt Resolution No. 2009-17, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-18. Resolution No. 2009-18, RESOLUTION AMENDING RESOLUTION NO. 2007-49, AS AMENDED BY RESOLUTION NO. 2008-05, TO REPLACE AND CONFIRM THE APPOINTMENT OF A MAYORAL APPOINTEE TO THE BOARD OF ETHICS (Rolf Bieber, Partial Term): Mr. Furfaro moved to adopt Resolution No. 2009-18, seconded by Mr. Chang. FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Mr. Furfaro: Mr. Chair, I just want to say that Rolf is in the audience and congratulations. Mr. Bynum: Congratulations Rolf. Ms. Kawahara: Congratulations and do a good job, do your homework. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-19. Resolution No. 2009-19, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Paul Weil, First Term): Mr. Furfaro moved to adopt Resolution No. 2009-19, seconded by Mr. Kaneshiro, and carried by the following vote: COUNCIL MEETING • - 47 - • January 28, 2009 FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-20. Resolution No. 2009-20, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF REVIEW (Cayetano "Sonny" Gerardo, First Term): Mr. Kawakami moved to adopt Resolution No. 2009-20, seconded by Mr. Chang, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-21. Resolution No. 2009-21, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF REVIEW (Craig DeCosta, First Term): Mr. Bynum moved to adopt Resolution No. 2009-21, seconded by Mr. Kawakami, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, on Resolution No. 2009-22, if I could ask for a motion to defer as Ms. Davis interview is scheduled for next week. Resolution No. 2009-22, RESOLUTION AMENDING RESOLUTION NO. 2007-65, TO REPLACE AND CONFIRM THE APPOINTMENT OF A MAYORAL APPOINTEE TO THE CHARTER REVIEW COMMISSION (Carol Ann Davis, Partial Term): Mr. Chang moved to defer Resolution No. 2009-22, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETIN • - 48 - • Janu 28 2009 ~'Y Mr. Nakamura: The next resolution for approval is Resolution No. 2009- 23. Resolution No. 2009-23, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CHARTER REVIEW COMMISSION (Carol Suzawa, First Term): Mr. Kaneshiro moved to adopt Resolution No. 2009-23, seconded by Mr. Kawakami, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-24. Resolution No. 2009-24, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE CIVIL SERVICE COMMISSION (Cathy Adams, First Term): Mr. Bynum moved to adopt Resolution No. 2009-24, seconded by Mr. Kawakami. Chair Asing: I believe we have a technical error on the name change. Instead of Cathy, it should have been Catherine, so I believe each of you have a copy of the amendment. Mr. Kawakami moved to amend Resolution No. 2009-24 as circulated, seconded by Mr. Furfaro, and unanimously carried. The motion to adopt Resolution No. 2009-24 as amended, was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next matter is Resolution No. 2009-25. Resolution No. 2009-25, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE LIQUOR CONTROL COMMISSION (Gary Pacheco, First Term): Mr. Bynum moved to adopt Resolution No. 2009-25, seconded by Mr. Furfaro, and carried by the following vote: COUNCIL MEETING • - 49 - • January 28, 2009 FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next resolution for approval is Resolution No. 2009- 26. Resolution No. 2009-26, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE PLANNING COMMISSION (Hartwell Blake, First Term): Mr. Kaneshiro moved to adopt Resolution No. 2009-26, seconded by Mr. Kawakami. Chair Asing: Any discussion? Councilmember Kawahara? Ms. Kawahara: Thank you Council Chair Asing. As this is one the areas that I am most interested in and Planning has the ability to appoint or remove the Planning Director, I took a particular interest in this nomination. I was able to ask him a lot of direct questions and on all accounts, people that I spoke with in the environmental... he is being nominated for the environmental slot on the Planning Commission. I did go out and solicit information and thoughts about Mr. Blake from all the Committee members that are interested in the environment. And by all accounts, they say that he is a very good man and I have to say that he also embodies to me what an environmentalist is on a personal level. He... I don't know if I have to go through this, but he believes in practicing his Hawaiian culture and he has lived all his life with the belief that nature and the preservation of its resources, access to the mountains and the seas are all ingrained in him, and that is how he has been from birth. The issues that I am curious about and struggle with is what the Charter actually ask for is at least two (2) members shall have knowledge and awareness of environmental concerns by way of persons education, training, occupation, or experience. Being that he... Mr. Blake actually did say that he was not part of any environmental groups or communities, and he believed that that was a strength. I would have to disagree and in order to represent an environmental concern or advocate, I think it is important to be aware of and concerned with what a lot of people in the environmental community are concerned about. I would urge him to reach out to those communities and those groups, become active in what they are concerned about, and also I would urge the environmental groups to reach out to Mr. Blake if he does, indeed get confirmed because you do have a very approachable man in Mr. Blake. He does have a strong foundation and a core that appreciates the environment and the fact that it is such an important resource for Kauai in terms of people that want to live here, people that do live here, and tourism. COUNCIL MEETIN • - 50 - • Janua 28 2009 rY I do also urge the Mayor to hopefully to be able to reach out to the communities that this particular environmental slot calls for because I think it was put in the Charter to specifically address concerns about the environment and how we are planning on Kauai. And from my understanding, he was not able to do that or he did not do that, and I think this would be... going down the list of all the resolutions and all the people here, I think it would have been a good way to be able to put a stamp... his own personal stamp on what his Administration was looking for in people. I still don't know how I am going to vote and all (inaudible) respect, he is going to be a good man, and for the reasons that other people talked about, he is an attorney, and he can help in that level. He has been on the board before. These are things that I spoke with about with the Mayor and those definitely are attributes and positives. It is the actual environmental slot, though, that component is missing if you are going by participation in communities that advocate for an environmental awareness. So I just wanted to say that and urge both parties to really talk to each other because, right now, there is not really a strong connection if Mr. Blake gets confirmed. Thank you. Chair Asing: Thank you. Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. I do have a question for Lani. So what would you consider a farmer? I don't belong to any environmental group. I am a steward of the land. I take care of the water. I take care of the mountains that we farm on, but I don't belong to an environmental group. I belong to the Cattleman's Association, Farm Bureau, so... Ms. Kawahara: That is the issue that I am coming up against. There are people that are environmentalist that are not part of organizations that we all know and most of us, I think, would fall under that category. So being able to represent people that have actually gone out of their way to become part of an organization and mobilize as a group, I think is important to recognize, and hopefully that would be something that Mr. Blake would embrace. But I definitely... I have spoken with a lot of people and a lot of people say, I am not part of a group, but I feel that I am an environmentalist and that is true. I don't know how to balance it is all that I am saying. Mr. Kaneshiro: But that is okay with you or that is not okay? Ms. Kawahara: Oh yea being, yes, definitely. Mr. Kaneshiro: So my question is that okay with you? Do you have to be in an environmentalist group to be an environmentalist? Ms. Kawahara: No, I don't believe you do, but the question beyond that for me was whether or not that would be a good representation of people that are in a group and do want to have a voice, that is why I urge people to reach out both ways. I do believe that you can be an environmentalist all on your own and COUNCIL MEETING • - 51 - • January 28, 2009 that is mostly what all of us are on Kauai, but whether to be a Commissioner on that in a slot specifically for environmentalist, that is what my concern is, and I wanted to bring it up because I still don't know how I will vote. Thank you. Chair Asing: Councilmember Kawakami? Mr. Kawakami: Thank you Council Chair. You know, I want to thank Councilmember Kawahara for bringing up her concerns. They are very sincere and honest, however, I would like to offer another perspective of my support for Mr. Blake as a Commissioner. Unfortunately, we were not able to televise the interviews because if you had been in the audience or if you had watched it on t.v. later on this week, you would have found out that... I am just drawing upon a statement that you made as far as environmentalist. How do you become one and one of them was... personal training and experience. From talking to Mr. Blake yesterday, it was very apparent that he got his personal training from being a part of Pohaku Nishimitsu's hula halau where if anybody knew... Pohaka would know that a big part of his whole teaching is about the environment and how you are a part of the environment and how you need to be stewards of the land. So I believe from hearing Mr. Blake yesterday, he gained a lot of personal training through that experience. As far as experiences, the second condition of being an environmentalist, Ithink growing up on Kauai and having the history that he has growing up in Koloa and seeing the changes and being a part of the ocean and being part of the Waterman and taking his children hiking, I think we are very fortunate to grow up on Kauai where we are surrounded by nature and we are always cognizant of the environment. Here in Hawaii, we realize that the dirt and the stones and rocks are more than just dirt, stones, and rocks. We are very connected to the land, so with that, I plan on supporting Mr. Blake. Thank you Mr. Chair. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I just think that this issue about what the Charter says regarding these environmental positions, you know, is not... doesn't include membership in an environmental group. It talks about education training, experience, and I think Mr. Blake is an outstanding example of that, and I will wholeheartedly endorse his tenure at the Planning Commission. Chair Asing: Thank you. Any further discussion? Councilmember Chang? Mr. Chang: Yes, thank you. I think we are very blessed and privileged to have someone like Hartwell Blake be apart of the Planning Commission. His family dates back in Koloa from the 1860's and as he has stated, you know, both of his parents were very much involved in Koloa. The father, I believe, was an agriculture teacher, a farmer, and Hartwell spoke about the days that you had to make everything... you saved everything. You did not throw everything away. He also spoke about the fact that if you look deep in the garage or COUNCIL MEETIN • - 52 - • Janu 28 2009 az'Y the shed, you would somehow find what you need. I believe with all the issues that have been going along in the Koloa... the Po`ipu area, save Maha`ulepu, the concerns of the Koloa Association. I believe he has been very, very well versed with issues, and as Councilmember Kawakami was mentioning, he had the privilege of being trained by the late Kumu Hula Pohaku Nishimitsu. What he described Pohaku's method of training was... Pohaku's style was so advanced that he started from the ground level up, so from anywhere from Ha`ena to Koke`e, he spoke about the materials, he spoke about the plants, he spoke about not picking live trees, but looking harder to find a dead wood on the ground that will start its next life cycle. Having known him, he is a lifetime resident and he did specify to us that he was gone for education purposes, and I believe he served in the military for six (6) years. Again, I feel very, very honored that we have the pleasure of welcoming in Hartwell because he is a lifetime resident with a lot of love and concern of Kauai. In this day and age, we have a lot of people moving to Kauai and we all want to be environmentalist and we all want to be a part of what Kauai is to all of us, but as Councilmember Kawakami was saying, when you are born and raised on an island and you swim in the land, you fish in the land, you farm on the land, I think that speaks heart and soul of what, you know, what we are all about when you are a keikiokaaina here. Hartwell is a big blessing and I would like to add with all the qualified candidates that are here to serve the board. One of the things, again, it was not televised, but I hope the viewing audience can pick up on the fact that some of the many words that they have all talked about was being privileged and being honored, and I have a lot of respect for people that say, ask not what my community can do for me, but what I can do for my community. So with all the aloha to Hartwell and the rest, I would be supporting his nomination. Thank you. Chair Asing: Councilmember Furfaro? Mr. Furfaro: I wanted to thank Councilmember Kawahara for raising her concerns. I think they are very appropriate concerns to raise, but I have to say that I was completely satisfied in my discussion with Mr. Blake. I want to say that, you know, when we use environmental and along the lines of Mr. Kaneshiro was saying, he was also raised with a farming family. He has formal legal training and issues that deal with employment procedure when we do reviews on the Planning Director and so forth. He brings those additional benefits, but most importantly, I think, you know, in the islands here, you are kama`aina to a certain area. In just as he talked about his Koloa/Po`ipu experiences growing up, the fact that he has been a community leader bringing over people like Peter Apo to facilitate the transportation and circulation plan working closely with Hawaiian organizations. I just want to say that when you are raised with those values, those kinds of values portray themselves in good stewardship, understanding the value of the konohiki system, overseeing how you manage resources, you know, I was very clear on his ability to do that. I have to also say that I am not absolutely convinced that the way we have this structured as two (2) from labor, two (2) from environment, two (2) from business, one at-large, and I was an at-large... I am not absolutely sure that is totally constitutional because why aren't we representing all COUNCIL MEETING • - 53 - ~ January 28, 2009 other groups. You know, we have a gentleman like Bruce that comes here, avid surfer, I respect his oversight. Hopefully, we will be able to say one day, we are voting on Bruce. I wouldn't necessarily say that Bruce is totally an environmentalist. In fact, I would say he has very much given testimony here about the wellness of his family and caring for people and tax bills, and so forth. I, myself, was a member of save our surf. I am very active with keonowaa, the sense of place programs that have been set up. I worry about water a lot. I mean when I surfed as a young man, I was concerned with the runoff in Kalihiwai as well as Kaipuni Stream. The fact of the matter is that I am not perceived as an environmentalist. I am perceived as knowing something about stewardship and that is what came across with me with Mr. Blake... his sincerity, his kama`aina connection to the land, his understanding... his ability to facilitate reasonable understandings could all be great benefits to the Commission. So I would say to Councilwoman Kawahara that I would hope we could encourage you to support him for the values he brings. I, myself, I walk with Maha`ulepu, but I am not a member of save Maha`ulepu. I walk with the Farm Bureau organization, but I am not necessarily always active with Farm Bureau issues. This is an agriculturaUenvironmental... flip it the other way, it is environmental, but it also involves being, you know, the ears and eyes of agricultural activities. I think he brings that and I will definitely be supporting Mr. Blake's term on the Planning Commission. I hope with my comments, you could consider the same. Chair Asing: Thank you. Any further discussion? Ms. Kawahara: I just want to say that I appreciate all the Councilmember's comments and I am in no way saying that Mr. Hartwell is not (inaudible) because I know l'e is and was very sincere and I do echo the fact that he was very, very sincere and clear about his belief in stewardship of the land. I just want to make it very clear, it is not the person and I do want to maybe plant the seed that the structure of the commission with the 2/2 and 1/1 is something that does put some kind of restraints on selecting people if you put them into slots. It is not a good thing necessarily to be in a slot, so thank you very much. Mr. Furfaro: I have one other thing and I do want to say to Councilwoman Kawahara that I do sense and do the interview process... your comments about sincerity of the many good things that we said about the individual, but it is, again, my hoping that we could get an unanimous vote for the purposes of sending a message of confidence from the Council in his piece, but I understand all of your concerns. Chair Asing: Thank you. Any further discussion? Ms. Kawahara: I do want to say that I did speak again to Mr. Hartwell this morning specifically on the facts that I was concerned about whether he can advocate for the entire island for the environmental community and COUNCIL MEETING - 54 - • January 28, 2009 he believes he can and I am believing that he can too. When I did ask him if he could rate himself on a scale of 1 to 10 on how he would be able to represent environmental communities, he said a 10. So I believe we can do this in a unanimous way because he does want to do this and I think he has a great background and a real love for the land and he is of the land. And being from here myself, there is a big difference growing up here and learning about the land as you grow. Thank you. Chair Asing: Thank you. Any further discussion? The rules are suspended. There being no objections, the rules were suspended. JOE ROSA: Good morning members of the Council. For the record, Joe Rosa. Well, I am going to awake you members of the Council who are unaware of incidents that happened to do with Mr. Hartwell Blake. I have to back Lani Kawahara up here... maybe she never thought about it or never been brought to her attention. I remember Mr. Blake..: I came to a Council meeting here and they were speaking about the KaLoko Reservoir. ;Now he was the County Attorney during the Kusaka Administration when the illegal grading and stuff was going on at KaLoko area over there. Mr. Blake was the ~ounty Attorney at that time and like I state, all this could have been stopped by the gentleman that was standing in the back at that time, Mr. Blake, because the inspector that they had on that job even quit the job because they weren't backing him up. They had letters that were sent to him, to Mr. Portugal, and Mr. Portugal to Kusaka. Nobody stopped it. What kind of environmentalist is he? It had to do with water and land. Think about it. You people must have forgotten, but I don't. I remember those things. What Lani said is true. He is the County Attorney, but they didn't go and stop it. All that illegal thing went about... that (inaudible) before the State stopped it a couple years after that. That caused some of that problems out at KaLoko. You people forget, I remember, so I am refreshing you guys and updating you people. If he was an environmentalist, he would have stopped that illegal grading if he thinks of the land. So those are the kinds of things, like I say, people forget, but you ask for public input, I am here, I remember. Mr. Kawakami probably don't remember that, but I do, and I think Mr. Mickens can verify that at a Council meeting here, I point the finger to Mr. Blake in the back. He was the guy who held the key that could have gone out there and stopped it. He is the County Attorney. The inspectors came in, report to their supervisors, they didn't do anything, so he quit. It is on record, so I want you to be aware and think about it. You are only looking on the good side, but there are things that I remember that he is not really total sincere if he say he is because that could have stopped. That was environmental, land, water, nothing was done. That is all that I have to say. Thank you and think about it. Ms. Kawahara: Thank you. Thank you Sir. COUNCIL MEETING ~ - 55 - ~ January 28, 2009 ANNE PUNOHU: Aloha. Anne Punohu for the record. Lani, I appreciate you saying what you said. I have two (2) things to say about Hartwell Blake. One, we all remember past history. I know Hartwell Blake personally and I happen to believe that Hartwell Blake has evolved over the years and I believe that influence from his brother has really made him much more aware now of how important it is to be very clear on how we are going to represent the environment. As an environmental activist myself and on these categories, I think that it is prudent to put someone in there that isn't an active environmentalist because if you do that, then you get those issues of, oh, they just voted that way because they owe something to... and if you really think about it, everybody can claim to be an environmentalist. It is tough category to describe, but I think it is a very important category to have because there does need to be clear representation. Now anybody who gets put into this position, I can tell you clearly from my standpoint is that we will be watching them like a hawk, so no worry, okay. So we will pay attention to how the votes go and how people do represent the environment on any of these commissions. I feel that Hartwell has... he has been a big part of this government for many, many years, and I would prefer to have somebody on the Planning Commission that understands so thoroughly both sides of an issue. He has seen the loopholes and how they work to wiggle out of environmental issues and he has also been on the other end... side of that too. Like I said, my main favoritism towards Hartwell is that I believe that he has evolved in his thinking and a lot due to his family members. Hartwell's brother has been so out there on these environmental issues, so lately, and I honestly believe that with his family to back him up. There is no way that Hartwell is going to sit there and, you know, and make stupid decisions on the environment when he has to go home and face his brother. So this is my opinion on the situation for what it is worth. Thank you. Ms. Kawahara: I really appreciate that. Thank you and that has come up before in my discussions that there is... he has evolved perhaps and that when he was working within the County as an attorney, he may have been, you know, restricted and unable to be free in what he wanted to do or say. So that is definitely one of the considerations that I had looked at and I am hoping for... Ms. Punohu: I say give him a chance. Ms. Kawahara: Yes, and I think that is mostly what I am thinking and also, Chair, just for information, no environmental group has spoken against or for him, so there is, I think, that is just what I wanted to say regarding that. Ms. Punohu: Mahalo. Ms. Kawahara: Thank you Anne. Chair Asing: I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: COUNCIL MEETIN ~ - 56 - ~ Janua 28 2009 ry , Chair Asing: Do we have further discussion? Councilmember Bynum? Mr. Bynum: Just one quick comment that I think it is important for everybody to understand that people play roles and particularly attorneys represent the interest of their clients. I personally don't hold that (inaudible) attorney responsible for the opinions and the duties that they do. We have fine attorneys who represent people in criminal defense, you know, and it doesn't mean that they agree with the criminal and their behavior. So, you know, I have no reservations whatsoever voting for Hartwell and I wouldn't want to hold him accountable for the position that every one of his clients has taken over the years. Chair Asing: Any further discussion? Yes, go ahead Councilmember Furfaro. Mr. Furfaro: I also want to, again, thank Lani for her objectivity in that and one of the things you touched on is the kind of history he has including the fact that he was on the Planning Commission during the historic issues dealing with Hanalei boating and those that were for boating were not necessarily for Hartwell. So it is that other piece that comes out about the history he brings to planning issues and I want to thank Mr. Bynum for pointing out that in a role of an attorney, you have an oath to work with your employer with sometimes your client, and you cannot necessarily reflect those values, but they do have choices. Thank you Mr. Chair. Chair Asing: Thank you. Any further discussion? If not, what I would like to do is I'd like to read from Section 14.02, Planning Commission organization. The Planning Commission shall consist of seven (7) members. At least two (2) members shall have knowledge and awareness of environmental concerns by way of a persons education, training, occupation, or experience. I am going to say the same things I have said on a number of occasions with the prior Council. You take a piece of document like this document here and you make an interpretation and in my interpretation of what is here, Hartwell Blake qualifies in the environmental slot. There is no question in my mind and I am going to say, again, when I bring up the Supreme Court justices, we have nine (9) of them, and we have many times the justices disagree. The best minds in the nation, nine (9) of them sit down and the vote sometimes come out 7-2, 6-3, and it just varies, so I want to say that in my interpretation of the environmental category as far as I am concerned, Hartwell Blake meets that criteria. So I will be supporting him and there is no question in my mind that Hartwell will do a good job. I have all the confidence in the world with his experience, knowledge, being born and raised here, and his concerns for the aina, I will be supporting him. With that, roll call please? The motion to adopt Resolution No. 2009-26 was then put, and carried by the following vote: COUNCIL MEETING ~ - 57 - ~ Janu 28, 2009 FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, on Resolution No. 2009-27, if I could ask the Council defer this as Mr. Iona will also be interviewed later on next week. Resolution No. 2009-27, RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE POLICE COMMISSION (Charles Iona, First Term): Mr. Kaneshiro moved to defer Resolution No. 2009-27, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On the top of page 8 on Resolution No. 2009-28, we have a pending request that this be taken up at 1:30 after lunch Mr. Chair, so if we could go to bills for first reading. BILLS FOR FIRST READING: Proposed Draft Bill No. 2302 - AN ORDINANCE AMENDING ORDINANCE NO. B-2008-673 AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND ($900,000-New Kapa`alKealia Fire Station Off-Site Waterline): Mr. Bynum moved for passage of Proposed Draft Bill No. 2302 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for February 25, 2009, and that it thereafter be referred to the Budget & Finance Committee, seconded by Mr. Furfaro, and carried by the following vote: FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next matter please? Mr. Nakamura: The next matters are bills for second reading. BILLS FOR SECOND READING: COUNCIL MEETIN ~ - 58 - ~ Janu 28 2009 ~'3' , Bill No. 2297 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO KULEANA LAND: Mr. Bynum moved for adoption of Bill No. 2297 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Mr. Furfaro: I just want to again say that my letter to the Office of Hawaiian Affairs on making themselves available was issued from our last Committee Meeting and a verbal request also went in to make themselves available here on Kauai. Thank you. Mr. Bynum: I just want to briefly thank Councilmember Furfaro for his leadership on this bill. It is an easy one to support for me. Chair Asing: Thank you. Any further discussion? If not, roll call please? The motion for adoption of Bill No. 2297 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Mr. Nakamura: The next bill for second reading is Bill No. 2296, Draft 1. Bill No. 2296, Draft 1 - A BILL FOR AN ORDINANCE TO AMEND ORDINANCE NO. B 2008-672, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE GENERAL FUND (Police Department: $65,000 for Consultant Services and $20,000 for Advertising): Mr. Kawakami moved for adoption of Bill No. 2296, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Asing: Any discussion? Yes, go ahead Councilmember Furfaro. Mr. Furfaro: Thank you very much. I want to first of all thank Mr. Mickens for the research that he did and also for the research that Mr. Chang did on comparing budget items and reassure us that this will be budget review item • • COUNCIL MEETING - 59 - January 28, 2009 for the upcoming budget to see if we can further help recruitment. I thank everybody for supporting this bill in advance if I could so say. Chair Asing: Thank you. Any further discussion? Councilmember Bynum? Mr. Bynum: I just want to echo some of that and thanks Dickie for that recent information and your diligence. You know, I have been on the Council for three (3) years and every Councilmember here has a long history of having deep support and concern for the Police Department. I believe in the best sincerity to try to address the Police issues. You know, we have a Chief right now who has been really frank and honest with us and is working on building the department. You know, he has addressed the issue that eventually we need additional beats. I know the support for the Police Department on this Council is deep. You know, this is just a logical kind of extension of that support to give the Police every advantage to be fully staffed. There is nothing more fundamental that the County does than public safety, and so I appreciate Councilmember Furfaro's leadership on putting this forward and it is easy to support also. Chair Asing: Thank you. Any further discussion? Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. I wanted to thank Councilmember Chang for also doing that homework. It is a lot of it. I hadn't heard anyone mention this, but in hiring... when I am doing hiring in my position, it is always difficult to find people on Kauai and the reasons are varied and beyond just what Mr. Mickens had spoken about. We are very isolated, we have a huge... we have issues with affordable housing for people to rent. So when I see us trying to compare with the Big Island or Oahu, there are amenities there that are offered naturally by the scope of their size that are attractive and incentives to be there. To be here, it does take something extra and more of a commitment and to fund this is something to recognize. I think that we do have a bigger challenge on Kauai to have to find people in any sector actually. It is always difficult because of where we are and how much infrastructure and the cost of living, cost of finding a place to live... a lot of times, we find somebody to fill a position that we have wanted to fill for a long time. They will come here, look for a place, and they will have to leave, and they can't do it, so it is heartbreaking. I strongly approve of what the Chief is doing and I believe that he is doing everything he can to fill those positions and I support him totally. Thank you. Chair Asing: Any further discussion? If not, roll call please? The motion to adopt Bill No. 2296, Draft 1 was then put, and carried by the following vote: COUNCIL MEETING. - 60 - • Janu 28 2009 ~`Y FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Next item please? Yes, can we have the County Attorney up please? There being no objections, the rules were suspended. DARREN SUZUKI, ACTING COUNTY ATTORNEY: Good afternoon Council Chair and Councilmembers, Darren Suzuki, Acting County Attorney. Executive Session 375 and 376. ES-375 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a briefing on the lawsuit filed against the County of Kauai in Dominador Lopez, et al., v. Countv of Kauai and Danilo Abadilla, Civ. No. 06-00325 JMS/KSC (U.S. District Court, District of Hawaii) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-376 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4) and (8), and Kauai County Charter section 3.07(E), the Office of the County Attorney requests an executive session with the Council to provide the Council a legal briefing on Debra Santiago as Next Friend for Sienna Santiago, A Minor, v. Countv of Kauai, et al., Civ. No. 08-1-0210 (Fifth Circuit Court) and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Chair Asing: Thank you. With that, Glenn? Mr. Mickens: For the record, Glenn Mickens. Just an informational question. I noticed that 307(E) is still on the agenda. Since the public did vote it down, I thought erroneously, but since it was voted down, why is it still part of the agenda. Does that mean that you still have to abide by 307(E)? Chair Asing: Let's have the County Attorney up. County Attorney, would you want to answer the question that was just raised? No? Mr. Suzuki: Council Chair, we believe the posting is proper and posted as such from our office. Chair Asing: Thank you. COUNCIL MEETING • - 61 - • January 28, 2009 Mr. Mickens: Was that an answer? Chair Asing: Yes. Mr. Mickens: I didn't get the answer. Chair Asing: Well, that is the answer. Mr. Mickens: Thanks Kaipo. Chair Asing: I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro moved to go into executive session on ES-375 and ES-376, seconded by Mr. Kawakami, and unanimously carried. There being no objections, the Chair called for a recess at 12:10 p.m. The meeting was called back to order 1:33 p.m., and proceeded as follows: Chair Asing: With that, Clerk, can we have the next item please? Mr. Nakamura: Mr. Chair, we are on page 8 of the Council's agenda which is Resolution No. 2009-28. Resolution No. 2009-28, RESOLUTION TO URGE THE GOVERNOR OF THE STATE OF HAWAII AND THE STATE LEGISLATURE TO CONTINUE FUNDING AND RESTORE FULL FUNDING FOR THE HAWAII HEALTHY START PROGRAM: Mr. Bynum moved to adopt Resolution No. 2009-28, seconded by Mr. Furfaro. Chair Asing: What I would like to do is before we proceed any further, let me turn this over to Councilmember Bynum. Mr. Bynum: Thank you Mr. Chair. I am offering a resolution in support of healthy start and I just want to open by saying a few words about why I think that is important. 25 years ago healthy start began in the State of Hawaii as a primary prevention program for "0" to " 3". It came with the recognition from the State Legislature at the time that the early years of life were critical during stages of brain development, when families have a lot going on in their lives that good healthy start for those children make for good healthy adults. But also, because we are in government, we like to save money. So we found out that good healthy starts at "0" to " 3" reduce cost in special ed, in child abuse and neglect, and criminal justice, and substance abuse, and all kinds of things can be prevented by giving families good support during "0" to " 3". And over those 25 years, we have a COUNCIL MEETIN~ - 62 - January 28, 2009 wonderful group of people in our community that deal with "0" to " 3" issues in early childhood. Everyone from Easter Seals who work with kids with identified developmental disabilities, to public health nursing, that work with families that have issues with... with health issues or development disabilities, and the kind of lynch pin of that all in my mind is healthy start. It started in the State of Hawaii. It was recognized all over the country and now is in 35 States (inaudible) healthy families in America initiative and has a long history in the State of Hawaii. Recently, the Governor's budget proposed not cutting this as it was cut two (2) years ago for fiscal... for eliminating the program. In my mind, to eliminate this program as a cost saving measure is very short sighted, so I want to tell a real quick story. There was this wonderful community that was on a river and they were very proud of their services. They had a great Fire Department with boats that could go out and rescue people from the river. They had a great hospital service, great physical therapy and rehab for people that were injured by falling into the river. They had many rescues every year and were widely touted as being really great to rescuing people from the river. A citizen came and said, you know, most of those accidents are happening up stream and there is no guardrail up there. So the town said, hey, that is a good point, maybe we should put a guardrail in. They put a guardrail in and they didn't need all of those intensive services because there were fewer people falling in the river to begin with. Healthy start is our "0" to " 3" guardrail and I think it is pretty short sighted to say, well, let's eliminate the guardrail that is a cost savings, so we don't have to maintain it anymore because we will pay those cost one way or another. So having said that, I was motivated to express hopefully the County's support for our members in the community that provide services and the families who receive services in the various "0" to " 3" programs. Chair Asing: Thank you Tim. With that, what I would like to do is... Tim, do you have anyone in the audience who wants to speak on this in particular? Mr. Bynum: Who wants to speak on this in particular? Chair Asing: Why don't we do this. I believe the Clerk has a list of speakers. Why don't we go down the list Mr. Clerk? There being no objections, the rules were suspended. Mr. Nakamura: We have five (5) registered speakers. The first registered speaker is Frank Ranger followed by Anna Peters. FRANK RANGER: Good afternoon Mr. Chairman and members of the Council. My name is Frank Ranger and I am the Director of the Kauai Head Start Program which is a program that serves income eligible families and their children between the "0" and " 3"... between three (3) and five (5) years old. We have COUNCIL MEETING ~ - 63 - • January 28, 2009 approximately 160 children in the head start program throughout the year and that represents about 155 families and those families represent nearly 300 children between zero and three (3) years old. Healthy start is the guardrail for head start. If children who are in head start do not receive the precursory services that are represented by programs like healthy start, especially healthy start, then the children who reach my program are at a complete disadvantage because they have not received those services as (inaudible) families suffering who have not received the services provided by healthy start. So the guardrail is being tampered with and it needs to be... I would encourage you to support this resolution because the children that my program represents are in dire need of the services that are available through this program from the ages of zero to three (3) years old, so I encourage you to support this resolution. If you have any questions, I will be more than happy to answer them. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Thank you for being here and the testimony. In statewide for this entire program since you are active in the greater relationship with head start, do you know how much is being asked to be reintroduced in the State's budget or is this resolution, in your mind, focused only on Kauai? Mr. Ranger: No, this... well, I cannot answer your question. There is someone else who is following me who have better information on that, but this program is affected in dire state. Mr. Furfaro: I understand that, but I guess what I want to know as I look forward to supporting at least the resolution concept of reinstating it, you know, what in particular am I indicating to the lawmakers might be the burden... and I mean the financial burden because certainly our children are not a burden. They are cherished and very much part of our family here, but I would like to make sure that I understand the numbers. Mr. Ranger: I am sure that one of my colleagues who will be following me will have that information for you. Any other questions? Mr. Furfaro: Thank you very much and thank you for being here. Chair Asing: With that, next speaker please? Mr. Nakamura: The next speaker is Anna Peters followed by Maile Carvalho. ANNA PETERS: Hi, good afternoon. I am Anna Peters with good beginnings alliance. I would just like to say that healthy start provides a safety net of services for Hawai`i's most vulnerable families and their keiki... home visits by family support workers assist new parents by educating them in providing them COUNCIL MEETIN~ - 64 - ~ Janu 28 2009 m'3' , skills, parenting skills. You know, when you get a baby, you don't get a manual on how to parent, but when you drive a car, you get a manual on how to drive a car. So being a parent is a very difficult job I am sure as all of you know. Some of the support systems that healthy start addresses is risk assessment for children and also identifying developmental delays before they get into the school system. Teaching life coping skills, increasing family capacity for self sufficiency, and reducing risk factors and developing protective factors... promoting healthy child development and family development. You know, also, school success does not begin with learning A, B, C's, but learning as an infant to trust. That is the biggest thing for babies to feel secure within their environment. This is what healthy start does with the families. They help to promote that close attachment. Healthy relationships lead to positive development and outcomes. I also want to say that, you know, that billions of dollars are spent each year on programs to deal with devastating outcomes on child abuse and neglect, and the direct dollar cost of child abuse are seen in law enforcement, the court system, out of home placements, and the adult prison system. The indirect cost of child maltreatment are even greater... substance abuse, depression, adolescent pregnancy, juvenile delinquency, suicide, violent crimes, and school failure. All of these have roots in child abuse and neglect. Service outcomes for healthy start and I had g7ven you some stats there, so like the cost for special education per child is about $20,000 annually indefinitely if the child goes throughout it the whole 12 years of their life. The cost for healthy start is only about 3,000 per family. That is huge... nationally studies show from the center of law and social policy... what they say is that increased numbers of abuse cases will further stress the child welfare service. DHS estimates, Department of Human Services, that the cost savings for family support services such as healthy start is 783,888 per family as compared to 3,000 for family for healthy start. So, you know, please take that into consideration. On the national level, there is also research that shows that for every dollar that the State spends on the front end on prevention and education for social services for families, on the back end, it saves $7 to $14. So, you know, I guess my plea to you is to advocate and reinstating those funds for healthy start. Thank you. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: The next speaker is Maile Carvalho followed by Amy Perdue. MAILE CARVALHO: Good afternoon. My name is Maile Carvalho and I am here today in support of the healthy start program. 10 years ago, I was privileged to have been a client of this wonderful program for three (3) years. Healthy start came to me after the traumatic birth of my second child. He was born with a major heart defect and needed corrective surgery to save his life. Mr. Furfaro: Take your time. • • COUNCIL MEETING - 65 - January 28, 2009 Chair Asing: No problem, you have all the time you want. Ms. Carvalho: I am so nervous. This could only be done in California and once we returned to Kauai, I became involved with healthy start. My worker was here to support me in many different ways. Not only was I parenting and caring for a medically fragile child, but I was also going through a divorce and parenting a two (2) year old and transitioning to becoming a single parent. My healthy start worker helped me to navigate the system by connecting me with all the limited resources on Kauai that could benefit me and my children. She also helped me to learn parenting skills that were different from my mothers. She taught me that it wasn't okay to hit first and then ask questions later as many of us were brought up. She gave me the tools to use with my children that I still use today and my healthy start worker stayed with me for the length of the program. After that, she encouraged me to apply as a healthy start worker myself and I thought I wouldn't be able to do that. Well, I have been employed at Child & Family Service for seven (7) years. Four (4) of that were with healthy start as a healthy start worker and the last three (3) have been with baby safe working with mothers with substance abuse issues. I don't know where I would be if it weren't for healthy start. Today I am working towards getting my certificate in substance abuse counseling and still looking towards a degree in social work. Thank you. Chair Asing: Thank you. Mr. Nakamura: The last registered speaker is Amy Purdue. AMY PURDUE: Hi, I am in support of the healthy start resolution. When I had my first child, I was uncertain of just what to do. Children do not come with an owners manual as Anna said, so the doctors don't give much advice when it comes to things that you need to do with your child even as far as like bathing and stuff goes, but it can be scary for young moms to do. So healthy start came in and got me connected with agencies out in the community that helped me find employment and medical insurance for me and my children. Healthy start helped me with support and advice that I needed that I wasn't getting from anybody else. I think I am a better parent because of healthy start. And now, 14 years later, I believe in the program so much because of how much it helped me that I now work for the program as a home visitor and I see daily how we make a difference in babies and new family's lives. So one of the things that we also teach is that parents are the first teachers. We teach them that their voice... the first teachers... they teach them about praise, about nurturing, about security, and that all parents won't know that without somebody encouraging them to praise their child and talk to their child, and that they do listen. So it encourages parents that they may not spend the extra time... without the encouragement, parents may not spend the extra time teaching the children, so I support healthy start. Chair Asing: Thank you. COUNCIL MEETIN~ - 66 - January 28, 2009 Mr. Nakamura: The next speaker is Anna Hepa followed by Erinia Figaroa. ANNA HEPA: Good afternoon. Mr. Furfaro: Good afternoon. Ms. Hepa: I don't have anything written down, but I just wanted to speak from my heart. I am really blessed with the healthy start program. I have a... my name is Anna Hepa and I have been with healthy start for three (3) years. I have a healthy baby boy and I want to thank healthy start for the encouragement they have helped me during the times I had to learn new parenting skills. Along with that, my husband and I have learned new skills to teach our child. He has also participated in healthy start new father's program and it has been an excellent program for my husband because this is our second time around and we have learned new parenting skills and teaching our child how to live, you know, in a healthy way because we have come from some dysfunctional background and healthy start has been a blessing in showing us how to be positive parents and healthy parents, and that is what healthy start does. It brings up healthy parents to bring up healthy children in mind, soul, and body. I think healthy start has been a blessing. I think to not support this program would be something devastating to the families that are coming up especially for the young parents that are coming up today. So I ask everybody to support this program. Thank you. Chair Asng: Thank you. Councilmember Furfaro? Mr. Furfaro: Just for the last speaker, I just wanted to... I don't need the last speaker back, but I do for... first of all, thank you very much for your testimony. I think you have made some very, very good points, but one of the points that I do want to make sure that we are clear. The resolution we are talking about is a policy statement that goes from the Council to the State saying that we support them as a policy in reinstating this money. Ms. Hepa: Okay. Mr. Furfaro: I want to make sure that we understand. This is not about Council money, it is about the Council saying, we want you to give every consideration for these reasons and these benefits to put this money back in the State budget, so what is going to come up is a policy statement, and it is not the County money. Ms. Hepa: Okay. Mr. Furfaro: I just want to be clear, but your testimony, thank you very much for it and you made some excellent points. i • COUNCIL MEETING - 67 - January 28, 2009 Ms. Hepa: Okay, thank you. Chair Asing: Thank you. Can we have the next speaker please? Mr. Nakamura: Last registered speaker is Erinia Figaroa. ERINIA FIGAROA: Good afternoon, my name is Erinia Figaroa and I want to speak on behalf of this health program that we have. I am a great grandma to Solomon Hepa and I have seen many times that... been there with the program with my great grandson and I see how he developed a really good thing in him. This program has been bringing him up from "0" to " 3", and they did a tremendous job. I ask that you will continue to support this program. This program is so good because it supports the, you know, parenthood, youngsters that are parent today, the single parent, that need this program to support them into bringing up their children. Right now, we need lots of the support that we can have for these youngster especially the young mothers that, you know, they just about to be a parent, and they need the support because then it will bring them closer relationship to the child as they go along with this program. I thank you. Mr. Furfaro: Thank you. Chair Asing: Is there anyone else in the audience who wants to speak on this item? Mr. Furfaro: First I want to clarify that for us to make a policy statement and to not understand the money would be probably an injustice to us. So we want to get behind it, but we need to make sure that somebody queries us, we know the financial piece that we are asking them to do. MARGARET BOUBON-SMITH: My name is Margaret Boubon-Smith and I am the program coordinator for healthy start here on Kauai. I want to just do a couple of things. One is because you folks have taken the lead in introducing this resolution, the other County Councils on the other neighbor islands are doing the same thing. I think Maui is going today and I believe that the Big Island is going next week... the same thing, supporting healthy start because on the neighbor islands, we don't have the resources that Oahu has. Of course Oahu doesn't feel that way, but that is another question. In terms of money, when we were fat and happy, we were about $18 million and we are a statewide program. Prenatal until age 3. We went from $18 million to $12 million. Some of this is TANF. We have a 1.5, I believe, TANF base. The TANF money is always up for grabs as you well know between the Legislature and the Governor, and who is going to spend the Fed's money. So what we believe is possible is that the TANF money is fairly solid. What we are asking for... what we went in with was about a request for $9 million. I think that is what the Governor said "no" to. I believe that is what the Governor lined out of her budget. Currently in Oahu, everybody is putting their heads together, they are creating this thing, and Senator Chun-Oakland is putting in a • COUNCIL MEETING - 68 - January 28, 2009 proposal for, I believe about $4.5 million. Whether that is going to be TANF, whether that is going to be general fund, whether that is 4.5 general fund and TANF, at this point is unclear, but we know that Senator Chun-Oakland with some other folks is putting forth a resolution... excuse me, a measure, a bill, to refund healthy start at that level. So as you can see, we are going to be funded at 1/4 of what we were if we get this appropriation, it would be about ~/4 of what we were when we were fat and happy. We want to keep the program statewide. We don't know how if that is going to be possible. The program definitely... if we get any money and we are assuming we are going to get some, it is going to look very different or we are going to go probably a little bit higher end families, and not just your medical needs or your high risk teenagers, but, you know... so we are probably going to go pretty high end families and our intake will be different which is just a technical thing that you guys... any other questions? Chair Asing: Councilmember Bynum? Mr. Bynum: The numbers that you are talking about are statewide? Ms. Boubon-Smith: The 4.5... Mr. Bynum: So at its peak when healthy start was servicing all of the families who needed or were eligible for services, it was about $18 million? Ms. Boubon-Smith: Right. Mr. Bynum: And then it was cut to 12? Ms. Boubon-Smith: Right. Mr. Bynum: And that meant not all families who needed services got that, is that correct? Ms. Boubon-Smith: There were changes, yes, in the eligibility criteria. Mr. Bynum: Because right now, you basically talk story with all pregnant families, right? Ms. Boubon-Smith: We talk to every family in the hospital that is willing to let us into the room and invite them into the program if they qualify. Mr. Bynum: So you talk story with people, it is voluntary. Ms. Boubon-Smith: It is completely voluntary. We are not part of CPS. At one point, we could not take a CPS family. Now because things changed, we might be able to take a family that belongs to the Department of Social Services. COUNCIL MEETING ~ - 69 - • Janu 28 2009 Mr. Bynum: And then those families are offered home visiting services? Ms. Boubon-Smith: Yes. It is a home visiting program. Paraprofessional braced with professional component. The family therapist, family specialist is a master's licensed family... a marriage and family therapist... that is the position we have here and we also have a child development specialist who focuses on developmental issues, the developmental screening, helping parents get that baby to talk, and knowing when to make the referral to Easter Seals to PHN, and just supporting the family in their own (inaudible). Mr. Bynum: A couple more questions and we got to meet a couple of women who were healthy start clients who are now home visitors. Ms. Boubon-Smith: Yes and no... have been home visits. Mr. Bynum: So kind of got services and then with the guidance that your professional staff offers came aunties that visit homes and support other members of the community. Ms. Boubon-Smith: Yes. One of the things that we would like to think is that we can provide the basis for people to have the self confidence, to be able to take another step that they can get that GED, that we can help them learn how to fill out those applications, so that they don't need us, so we can work ourselves out of job. So by the time they get into head start, those kids are ready to learn. Mr. Bynum: So, currently, how many people are employed on Kauai doing healthy start? Ms. Boubon-Smith: Well, we have 3 1/2 on the visitors. We have a half- time child development specialist... afull-time child development specialist, and a half-time therapist. Mr. Bynum: So about five (5) people. Ms. Boubon-Smith: A supervisor who is half-time, a program administrator that is three-quarter time. Mr. Bynum: And you are providing service to how many families? Ms. Boubon-Smith: We figure this year, '08-'09 with the cuts that we picked up in July because we took a 33% cut in August after we had gotten our contracts. We are probably going to serve between 100 to 150 families. COUNCIL MEETING. - 70 - • Janu 28 2009 ~'3' , Mr. Bynum: So if the program was eliminated as it is proposed, those five (5) people would lose their jobs and the 125 families wouldn't receive any services? Ms. Boubon-Smith: That is probably accurate. Mr. Bynum: Okay, thank you. Chair Asing: Councilmember Furfaro? Mr. Furfaro: Yes, thank you very much for those numbers. They are very important and I want you to know upfront that I am going to be supporting this resolution 100%. I do want to let you know that some of us have heard from Senator Oakland indicating that these pieces are important to support her request, but I want to make sure that we are all very clear of where the State is. Again, I am going to put my name on this resolution, but when you go the State Legislature, they are now talking to get the balanced budget. They are talking about taking money out of the hurricane fund, they are talking about taking money from rail transit, they are talking about taking the neighbor island share of the transient accommodations tax, and they are saying to us, to finish the year, we are $18 million short and to finish the next two (2) years, they see a shortfall of $1.8 billion. So I just wanted to say, here is what the horizon looks like. Ms. Boubon-Smith: Which is why if we think we will survive, we are expecting that we will be given that chance to serve the families, and we know that we are not going to look the same. You know, we are going to be a much smaller operation if we survive. We may not be on Kauai, you know, the State may make some decisions that it is only going to fund Oahu. You've got $4 million or they are only going to fund Maui because they've got Molokai and Lanai. Mr. Furfaro: Those are variables, but the reason in asking for those numbers is because it is such a tight photograph right now. I want to make sure that if I stand up and say, this is something that we need and we are not going to give you feedback about raiding the TAT. We are not going to give you feedback about things like the hurricane fund and so forth because we value this program. That is a real tough message, but I am willing to put my name on the resolution, but I don't want you leaving thinking, you know, this is a policy statement. This is something that we are asking them to re-look at and we know that it is very tough times. You know, that is why it is very hard to explain the economy, but in a good economy, we have a lot of good programs. In a tough economy, we have to pick and choose, and that is the reality... trying to keep the healthy economy. So I just wanted to make sure that I painted the picture, but you have my support. Ms. Boubon-Smith: And I thank you and I thank you for a fiscal responsibility because, you know, it is going to come down to all of us, and COUNCIL MEETING ~ - 71 - • Janu 28 2009 ar'3' everybody is going to pay. If you fund healthy start, who is not going to get funded, and that is a decision I am glad that I don't have to deal with. Mr. Furfaro: I also... I do want to let you know that some of us had heard from Senator Oakland. Ms. Boubon-Smith: Thank you. Chair Asing: Thank you. Is there anyone else? Anne? ANNE PUNOHU: Aloha, I am Anne Punohu for the record. My children and I have benefited greatly from programs like this throughout my children's lifetime. My daughter is about to becoming a young adult and be 18 pretty soon. My other daughter is going into high school pretty soon, however, I would like to address what you just said Mr. Furfaro. We all understand about fiscal responsibility at this time and in hard economic times. But for situations such as this, this transcends money, it transcends budgets, it transcends numbers... this speaks about the care of the people of Kauai and when you care for the least of these people who come into this world with the hardest road to hope, then you benefit yourself. This is a message that we need to send very clearly to this current Administration that currently runs our government system in the State of Hawaii. I personally would be sad to see anything more shaved from essential services to care for the least of our people anymore. We have already seen budget cuts in education, mental health services across the board, and I personally do not want to see anymore of that happen. I know that we have a strong Council here that will send a very clear message and be quite brave on this and say, that we understand that this is tight fiscal economic circumstances, but to deprive this particular class of people from anymore services will be a detrimental to the entire State. Thank you. Chair Asing: Thank you. Bruce? Mr. Pleas: Bruce Pleas for the record. This is the type of services in tight financial situations that the government is looking at that should not be cut. The ripple effect starting from age "0" to " 3" is going to affect the financial burden on the State through the person's lifetime. What I'd like to add to this is the copies of the resolution be transmitted. President Obama should get this and should be made aware of this. This is part of his plan... this is where moneys that he has for economic reform and economics throughout the United States would go. Also, too, the Federal department that releases the Federal funds, they should get a copy of this. They should be made aware and also this organization should be looking at getting Federal funds directly. If the State is going to draw up the ball, there may be Federal funds directly available for this operation on Kauai. I think that is some ways to look... also, Senator Oakland should be getting a copy of this, it should be on the list too. To me, like I said before, this is something that we just do not drop the ball on. It is too important for the island and for our kids. Thank you. COUNCIL MEETIN~ - 72 - ~ January 28, 2009 Chair Asing: Thank you. Is there anyone else? LAMA ROSA: Good afternoon Council Chair and Councilmembers. My name is Lana Rosa and I want to share a little bit about myself first. I've worked with senior programs for many years prior to getting hired at Child & Family Service-Health Start Program. I also want to share that besides working for healthy start, I wear two (2) hats. I also work for enhance healthy start .and I am here to share with you as a worker. I am family support worker and my job is to go into the homes and to support the families in child development and the needs that may concern them. Let me tell you, I had no clue what I was getting into when I got hired by this job. I had no clue and to sit before these young people and share with them... first of all, you have to remember, they are looking at me as an older person, so right there already, you see the respect that these young women and men have, for me, as an older person. However, it becomes my reflection as to what I say to them because they are going to be my future tomorrow. Does it hurt for me to go home and be sad about the things that I face everyday in my work, yes it is. It is very hard. The sad thing is, I can't share it with my husband because everything is confidential. So when my poor husband look at me and say, can I help you, I say don't talk to me, just let me cry, and he let me cry for he don't know what... So Councilmembers, let me tell you, I had no clue what was out there. I was born and raised here on Kauai and to see the fluctuation of the people here and to see what our communities are now producing to very heartfelt for me. It hurts me. I am a mother of four (4) children and, you know, I thought I raised my babies the best I knew how. But when I got hired for this program, it taught me how to be a better mother. Now I am a grandmother. The skills that I have learned from this healthy start program, I apply it to my children and to my grandchildren. I may have lost some points on the first time around and hopefully I don't lose with my grandchildren. I can sit here and talk to you forever about my feelings of this program. I feel strongly about my job and what I do for the community because one day, these people will stand before you and testify and give you their testimony and how they feel the same way that I do. When my daughter at 38 became a mother for the first time, guess what, she had no clue how to take care of a baby and she was 38. So this is the kind of job that my colleagues and I work on everyday as if we can make one parent make a difference in one parent's life, that is the future of Kauai tomorrow. Thank you. Chair Asing: Thank you. Is there anyone else? ESTRELLA LOPEZ: Hi, good afternoon. My name is Estrella Lopez. I just here to testify about my experience with the job. I have been working with healthy start for 16 years. I would like to share one story with this Mom how her life changed having a healthy start program. When I have a mother... she was 16 when she got pregnant. She is a runaway kid and found a boyfriend and never go back to her parents. When I started with this client, this client is very isolated. She COUNCIL MEETING - 73 - January 28, 2009 don't have friends because she don't want to go see her friends after she got pregnant. While I am working with her, she is a very, very hard client. The only words that she knows "yes," "no," I don't know, and probably for one hour I am sitting with her, you can count her yawning is probably 25 to 50 yawning. So... but then I told myself that if I had to give us this mother and I am trying to imagine how her life could have been if I am not going to continue the services that I am providing. So for the second time around that she got pregnant, she don't have a medical for second baby especially herself because she got pregnant without the medical and she never go prenatal until she is almost giving birth. I think at the time, this client did not build a trust because we don't know each other. She don't know me and I don't know her. The only thing that I think that she built that trust towards me when I asked her how can I help you? She asked me to go to her parent's house and ask for medical for herself, so I did that. I think, at the time, this client started to trust me that when I say something, I will do it for her to help her out. And when she give birth to this baby that is when our relationship started to grow stronger. Now... I have to ask her question without the answer "yes" or "no" because that is all that I am going to get. So I have to ask her... I have to give her open ended question for her to tell me something. And then as her kids growing up when her baby girl turned 5 years old, 6 years old, she went to head start and when she started head start, they started to volunteer at the school which is a good start for her. And then when the other turned 6 years old, then both of them, her and her boyfriend started coaching little children for t-ball, and I think that is a big step for her. While I am still working with her, she ask a lot of how to do this, how to do that, so I tried my best to help this girl. And to make my story short, this girl now which she don't know how to talk, the "yes" or "no", I don't know is now working at the post office which she interacted with a lot of people every single day. I was surprised when I went there. Oh, my goodness, you are working in here and she said "yes". Now, I believe that I planted that seed. I might not seen too much while I am working with her, but the fruit that I planted into that girl, I see it now because her life is completely changed. I ask her if I can use that story to share. This is not the first time I shared that story. I share it when we went to Honolulu for another thing, and she said "yes" you can share. I think for her, right now, she is just such a proud mother of the two (2) children and now her children they are old in high school. In a way, she thanks me for being there and did not give up on her while needed my help. I think the healthy start program is so important to the community especially with young mothers that don't have any support, don't have any experience at all. As a worker, we are going there to support this Mom and not judgmental, and give them all the tools that they need, so that their kids going to have the good support and future as they are the future in the community. Thank you. Mr. Bynum: Thank you. COUNCIL MEETIN ~ - 74 - ~ Jan 2 uary 8, 2009 Chair Asing: Thank you. Is there anyone else in the audience who wants to speak? Going once, going twice. Thank you very much. With that, I would like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: Is there any further discussion? Councilmember Furfaro? Mr. Furfaro: I do want to thank some of the testimony that have been presented here, but I also wanted to point out the fact that some of the commentary about who we are copying has been reflected in Mr. Bynum's resolution. The fact of the matter is, there are questions... some I was a little bit offended about dealing with directing funds, and so forth... that there is no misconceptions here about what authority the Council has on some of these things. I think the worst thing that someone that serves in the public can do is over promise and under deliver. For example, directing the funds. We still have a question on the moneys that President Obama has worked on and hopefully was voted on today. There is no clarity as the money that the County has requested, is it going to come directly to us, is it going to go to the State in a masterplan, and direct it as such. I also want to say that, you know, those are big challenges about schools that are closing and so forth. They are important and they are the foundation of each community. I know how valuable Kilauea School is to the community of Kilauea and so forth, but this is not issues that is just associated with the government being the Governor. This is the issues that the entire legislation is working on. There are many issues out there in our society. As the President of Habitat for six (6) years, I was involved in interviewing almost 600 applicants and their families dealing with needs. I have a daughter here that has (inaudible) in social work and dealt with babies born at Kapi`olani that were addicted to drugs, and counseling those families and so forth. They are very emotionally pieces and when I put my name and my vote on supporting this resolution, I just want to make sure that we clearly understand that this may trickle down to something that the County has to do because we are going to see many social groups wanting assistance as we move forward. We may have to introduce a Charter amendment that basically indicates that we are going to earmark a certain percentage of our taxes for a period of time where people can actually apply for assistance and so forth, but that takes a lot of motion. Thank you Mr. Bynum for introducing it. It is something that I have no problem supporting, but I just want to make sure that we clearly understand that at the Legislature, they are talking about raiding other funds just to balance the budget. I would also say that maybe we shouldn't be satisfied with the 4.5, maybe the resolution should go farther and when we say reinstate the full amount, we are referencing on the Council that the amount that we are looking for is the $9 million and that is going to be my interpretation when I vote to support this. Thank you. COUNCIL MEETING ~ - 75 - ~ Janu 28 2009 ~'3' Chair Asing: Thank you. Any further discussion? Councilmember Kawakami? Mr. Kawakami: Thank you Mr. Chair. I just want to say thank you to Councilmember Bynum for bringing this to my attention because if he had not, it would probably be one of those things that fell through the cracks as far as what is on my radar screen. I want to thank also the people that came out and gave that heartfelt testimony. I know it is hard to come up here and speak and when I heard Ms. Carvalho's testimony, I mean I think everybody felt it in their hearts, and I just want to say that I appreciate that. I have no problem supporting this resolution. It is something that is easy for me to decide on, so thank you. Chair Asing: Thank you. Any further discussion? Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. When Councilmember Bynum asked for my support on this resolution, he had it right then, and I have seen nothing here today that is going to change my mind. All of the people here that have testified have given moving examples on how this program has touched their lives, the lives of their children, and the children after that. We are talking about generations here. We are also talking about a community as a whole. Senator Hanabusa in her address to the Legislature on the opening said that these are going to be hard times, and what we choose to fund and what we don't choose to fund is going to show and reflect on what kind of community and what kind of State we are. I strongly support this and I believe that as a State, this is a program that we should support and it will reflect if this goes through, this will reflect the kind of importance that we place on serving the most vulnerable and the most needy in our communities around the State. Thank you and thank you Tim for introducing this. Chair Asing: Thank you. Councilmember Chang? 4 Mr. Chang: Again, thank you to Councilmember Bynum for bringing this up and thank you to everybody that testified. I know that Frank Ranger and Margaret Boubon-Smith... they may have already left, but if I can encourage those of you folks that are still here... my understanding, I think Anna Peters was mentioning that the Maui County is discussing this matter today and the Big Island for next week. I think if you can convey to your counterparts on the neighbor islands that Kauai and the neighbor islands should stick together as one, then the power of the voice... it was mentioned that maybe Oahu doesn't think that we need funding because we are like the neighbor islands if you will. But if you can convey to the County of Maui and your counterparts on Maui and prepare the Big Island to know that we all step in as one as our three (3) counties, that will strengthen all of our arguments to look at this program. I am not a father, but I have raised kids, so I can understand the challenges that many of you folks had out there, so I believe that it is extremely important and, again, to Tim Bynum. Thank you for bringing this up to all of our attention, but, again, I just want to really COUNCIL MEETIN~ - 76 - Janu 28 2009 ar3' stress the fact that we need to get out and let our people know on the neighboring counties that Kauai stands firm, and we will rest assure... let our Legislators know, representing Kauai how we feel as the Council and as the people here on Kauai. So please get out there and let your people know on the neighbor islands that we need to get together as one strongly. Thank you. Chair Asing: Thank you. Any further discussion? Mr. Furfaro: I do sincerely want to thank Mr. Bynum for introducing this. I think society has mentioned... is measured truly as Lani Kawahara pointed about, about caring for those that are vulnerable and I certainly heard that message from Colleen Hanabusa, but this has got to be only the first step in this. I just want to, again, reiterate that it is a policy statement and wherever they feel that we can continue to support or put emphasis on this, needs to continue to communicate to the introducer of this resolution, so if there is more that we can, we will be right on top of it. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I just want to clarify a few things and thank you everyone that came today and those of you that offered written testimony which is pretty moving, and I hope you will consider sending that to your State Representatives as well and the Governor because this is a State issue. You know, the County of Kaua`i... if this resolution passes says that we recognize the value of healthy start and the resolution request that there be continued funding and respectfully urges them to restore full funding for Hawaii Healthy Start. Because, again, we have to come back to fiscal realities and I started this by saying that is a primary prevention program that saves money. The State of Hawaii has responsibilities to its citizens, and not just moral responsibilities, but legal responsibilities to meet certain levels of service. We saw that in the Felix Waihee consent decree that the State of Hawaii was under court order for nine (9) years or more to provide special education services that are required under Federal law. So healthy start, I think we have demonstrated today prevents a lot of things from occurring that we are legally required under Federal law to do... criminal justice and child abuse and developmental disabilities that are caught early in the period of time when the brain is developing and small interventions can bring kids back to the main stream, back to normal, where we don't spend huge sums continuously over years in special ed or in criminal justice and these other areas. This was very much a fiscal matter as far as I am concerned. It is saying that let's not be penny wise and pound foolish that... we might save some money this year, but over the next ten (10) years, we will spend a lot more, and then there is the human factor that you all address so very well. So I appreciate the comments from my colleagues and the time devoted to focus on the "0" to " 3" community and to say what a wonderful group of people we have in our community serving families and I am proud of all of you very much, so thank you for coming here today. I appreciate that. IL MEETING ~ - 77 - ~ Janu 28 2009 COUNC ary , Chair Asing: Thank you. I just want to make a few comments also. You know, I like many of my colleagues here attended the opening of the Legislature last week, so we know and understand the tone of the economy of the State. We are in dire straights. We heard from both the Speaker of the House Calvin Say, we also heard from Senator Hanabusa who is the Senate President, and both have expressed their great concern in the state of our economy, our resources, and these are very, very tough times. I also had the opportunity this past Monday of attending Governor Lingle's State of the State speech in Honolulu. She also expressed the great concern that we all face here in the State. You can imagine anytime there is major problems with the economy on the State level, that is also funneled down through the County level. It is just going to be tough and hard, but by the testimony today and all the information I have been able to gather, I want to thank Councilmember Bynum for introducing the resolution. I will be supporting the resolution. I think that the investment in our youth especially those ages from "0" to " 3"... that is really the start and the start, to me, means the future. The future is so very important to me, so I will be supporting this resolution also. So with that, thank you very much everyone for showing up and for all of your testimony. With that, roll call please? The motion to adopt Resolution No. 2009-28 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST ADOPTION: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Mr. Nakamura: Mr. Chair, if we could go to page 4 of the Council's agenda just to clean up the last two (2) matters on the agenda. We have communication C 2009-69. C 2009-69 Request (OU16/2009) from the Office of the County Attorney requesting approval to expend up to an additional $75,000 for special counsel's continued representation in Dominador Lopez, et al., v. Countv of Kauai and Danilo Abadilla, Civ. No. 06-00325 JMS/KSC (U.S. District Court, District of Hawaii) and related matters: Mr. Kawakami moved to approve C 2009-69, seconded by Mr. Kaneshiro, and unanimously carried. C 2009-70 Request (01/16/2009) from the Office of the County Attorney for authorization to expend funds up to $25,000 to retain special counsel to represent County of Kauai in Debra Santiago as Next Friend for Sienna Santiago, A Minor, v. Countv of Kauai, et al., Civ. No. 08-1-0210 (Fifth Circuit Court) and related matters: Mr. Furfaro moved to approve C 2009-70, seconded Mr. Kaneshiro, and unanimously carried. COUNCIL MEETIN~ - 78 - January 28, 2009 There being no further business, the meeting was adjourned at 2:34 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /lki