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HomeMy WebLinkAboutP-0107.01-16 Council Minutes 06-2009- 7 ~ ~ ~ COUNCIL MEETING June 3, 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, June 3, 2009 at 9:28 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 Chair Asing: Can we have the first item please? PETER NAKAMURA, Cou1v~ CLERK. The first item is the approval of the agenda. APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Kawakami. Chair Asing: Any discussion? Mr. Bynum: Yes Mr. Chair. Chair Asing: Yes, go ahead. Mr. Bynum: I would like to make a motion to amend the agenda by adding a resolution to clarify Council rules. Mr. Bynum moved to amend the agenda by adding a resolution to clarify Council rules, seconded by Ms. Kawahara. Mr. Bynum: Time for discussion? Chair Asing: Okay, go ahead. Mr. Bynum: Our Council rules say that any member can introduce any bill or resolution and I think that is pretty clear, and in spite of that, repeated request that I have made to add Council agenda items have been refused. And I think it is appropriate that we have a discussion regarding that and clarify COUNCIL MEETING ~ - 2 - ~ June 3, 2009 that rule, so I am making this motion, and if you want to discuss it now, we can. If you would like to move it a different part of the agenda, but our rules call for an ability to add an agenda item by a vote. Chair Asing: Thank you. We will move this item to the end of the agenda. Thank you. With that, can we have the first item please? Mr. Nakamura: There is a motion and a second on the approval of the agenda Mr. Chair. Chair Asing: Okay, all those in favor say aye? The motion to approve the agenda was then put, and unanimously carried. Chair Asing: Motion carried. Next item please? Mr. Nakamura: The next matter is approval of the minutes of the following meetings of the Council. MINUTES of the following meetings of the Council: Council Meeting of May 20, 2009 Public Hearing of May 20, 2009 re: Bill No. 2312 and Bill No. 2313 Public Hearing of May 27, 2009 re: C 2009-184 Mr. Kaneshiro moved for approval of the minutes as circulated, seconded by Mr. Chang. Chair Asing: Any discussion? All those in favor say aye? The motion for approval of the agenda was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, at this time, we have a request to take up on page 4 of the Council's agenda a LEGAL DOCUMENT, communication C 2009-206. LEGAL DOCUMENT: C 2009-206 Communication (05/21/2009) from the Housing Director, recommending for Council approval a Third Amended Agreement for Kauai Lagoons Affordable Housing to allow for an extension of time up to August 17, 2009 for the developer to obtain Certificates of Occupancy for 82 of the required affordable housing units: • Third Amended Agreement (Kaua`i Lagoons Affordable Housing) l COUNCIL MEETING - 3 - ~ June 3, 2009 Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-206, seconded by Mr. Chang. Chair Asing: Any discussion? If not, all those in favor say aye. The motion to approve LEGAL DOCUMENT: C 2009-206 was then put, and unanimously carried. Chair Asing: Motion carried. Next item please? Mr. Nakamura: We have a request also to take up on page 3 of the Council's agenda, communication C 2009-200. C 2009-200 Communication (05/14/2009) from Angelica Tran, representing Waimea High School's 9th Grade Class, requesting agenda time to make a presentation regarding traffic safety from Intersection's Beach (also known as "Intas") to First Ditch (in the vicinity of Kekaha Gardens) and recommending a change to the speed limit on Kaumuali`i Highway from 50 m.p.h. to 35 m.p:h.: Mr. Kawakami moved to receive C 2009-200 for the record, seconded by Mr. Chang. Chair Asing: I believe that they are going to do a presentation, so with that, what I would like to do is suspend the rules. There being no objections, the rules were suspended. Chair Asing: Can we have the representative up please? MARK O'DAY, WAIMEA HIGH SCHOOL TEACHER: Good morning. For the record, my name is Mark O'Day, a teacher at Waimea High School. Chair Asing: Good morning. Mr. Bynum: Good morning. Mr. O'Day: I would like to first start off saying thank you Council Chair and Councilmembers for allowing our 9th grade class to present their participation in a democracy issue that they feel strong about. I would like to introduce the students who are here today. Behind me is John Medeiros, Marah Golding, Anna Hartsell, Angelica Tran, and Ally Wright, and a parent supporter, Ui Wright. Just a little bit about the course. The 9th grade social studies... one of the course is called... one of the courses classes is called participation in a democracy... when one of the benchmark requires the students to actually participate in the political process. So with the little direction from me, we did find a potential problem on the westside that the students decided that it could be changed and they broke into groups of their choice. And in their projects or their groups, they worked on things like e-mailing public officials, testifying before a public body like they are i COUNCIL MEETING ~ - 4 - • June 3, 2009 going to do today... initiating data collection and public support and they would like to present their findings to you this morning. So I would like to, again, step out of the way and let the students do what they do best. Thank you. ANGELICA TRAM: Good morning. Mr. Bynum: Good morning. Chair Asing: Good morning. Ms. Tran: My name is Angelica Tran and I am a member of the 9th grade class at Waimea High School. I would like to thank you for your time today to hear our presentation and John Medeiros will be giving it. JOHN MEDEIROS: Good morning everybody. Ms. Kawahara: Good morning. Mr. Medeiros: For our class participation in democracy, we were to find the problem in our community. We found that there is a beach called Inters or Intersections. It is on the westside and it is a stretch of Kekaha Beach, and it is at the intersection of Akiaola Road and Kaumuali`i Highway. Many, many students go to that beach right after school. I can recall that we were riding on the bus and as you pass the parking lot, you can see tons of trucks and sometimes the whole back is loaded with fins and bodyboards, and surfboards. It is pretty popular, it is a family friendly beach, it is just famed. It is located... it is about half a mile long... right at the intersection and it is away from the shrimp ponds and first ditch. And Kaumuali`i Highway is marked with the two (2) orange marks on the presentation. And right there is Inters right between the lifeguard stand. The problem with it is the speed limit. It resides in the 50 mile per hour zone and it is really convenient that right after Inters is a 35 mile per hour speed limit sign that opens up to Kekaha, so all of Inters is in a 50. I would like to call up Allyson Wright to present the data that we found on April 16 and Apri120, 2009. ALLYSON WRIGHT: Hello, my name is Allyson Wright and like (inaudible) said before, I am a 9th grader at Waimea High School. Data collection was from April 16 to the 20 and what we did was we stood in front of the lifeguard stand and we counted the amount of cars that were parked that passed, cars that left, and arrived as well as U-turns. I am not sure if it is illegal or not, but we counted U-turns too and that is a picture of a U-turn and how dangerous it can be because of how fast people are going. If you have a blind spot and you cannot see a car coming, that could have caused an accident. Mr. Medeiros: Our proposal is that the speed limit sign that starts Kekaha or the rest of Kekaha town, and we would like to move it near the pavilions or even near First Ditch to make all of Kaumuali`i Highway as well as Kekaha COUNCIL MEETING ~ - 5 - ~ June 3 2009 Beach a 35. The benefits of this would make the whole roadway and the beach much safer for pedestrians, drivers, and other beachgoers. You can reduce the chances of vehicle collisions or collisions with a pedestrian, prevent future accidents, and ultimately save lives. The picture was a roadside memorial for a crash in 2007. I had some spare time and I looked up some facts that would benefit this presentation. I found that a car traveling at 50 m.p.h. requires 125 feet of (inaudible) come to a complete stop. So a driver traveling at 50 would have to spot a pedestrian or something that they could hit from 125 feet away. Even if they stomp on the breaks, they would still be within inches of that depending on whether or not they have good breaks. A car traveling at 35 requires less than 100 feet to come to a complete stop, so spotting a pedestrian from 96 feet away is much safer. That 30 foot difference can save lives. Thank you for listening to our proposal and for slipping us into your agenda. We greatly ask for your support and it would be appreciated. And we would like some advice as to where to go from here because to us, this is more than a school assignment, this is more than a homework project. We really want to get this done. Thank you. Chair Asing: Thank you. What I would like to do is... what the students have done is they have come forward with some ideas and a proposal that they feel is something that is needed for the safety of the people in the community. So with that, I have a short slide presentation to make in support of your project. With that... these are some of the suggestions that we would like to make as a Council to you for your project and your establishing speed limits on a State highway... although it is not within the jurisdiction of the County Council, the Council has some recommendations. And the recommendations are and I would like to read it. Contact and make presentation to the State Department of Transportation Highways Division with the Kauai District Engineer. Contact Kaua`i's legislative delegation who is Senator Hooser, Representative Sagum, Representative Tokioka, and also Representative Morita who is not listed there. Also, we would like to suggest that you garner support of community businesses and organizations. As an example, the West Kauai Business Association, the Kekaha Association, PMRF, and business owners, and of course, a letter of support from the County Council ourselves. With that, we have a letter here and let me just read the letter here and this is to Raymond J. McCormick who is the District Engineer for the Department of Transportation who heads the Kauai District. Let me read the letter. Dear Mr. McCormick: This is to inform you that the Kauai County Council at its meeting held on June 3, 2009 supported reducing the speed limit along Kaumuali`i Highway in the vicinity of the intersections with Akiaola Road and mile marker 28 which is First Ditch as presented by Waimea High School 9~ graders assigned to the participation in government project. In light of the above and in the interest of safety, your favorable consideration in reducing the speed limit as described above is appreciated, and I am sure that all the Councilmembers agree with this, and I will be signing it, and sending it over to the a COUNCIL MEETING - 6 - ~ June 3, 2009 District Engineer. So with that, these are our recommendations. We would like to congratulate you on a job well done. We are not exactly sure as to the kinds of criteria that the State uses for establishing speed limits, but we would suggest you work with them, and we will support you in that endeavor. So with that, Councilmembers, any comments? Mr. Chang: Thank you Chair. Congratulations to the 9th graders. What a great presentation. I think your presentation actually is extremely timely because as we all know this weekend is graduation. So I think that will create a lot of awareness because normally during graduation is when we have had accidents and some of them certainly causing death. But I did want to point out... I noticed that you counted 26 parked cars and about 162 cars passing within a 15 minute interval and what is very interesting is the dates that you gave the 16th and the 20th is a basically a Monday and a Friday. So I would imagine that would be a lot more during peak hours during the weekends, but another great point that you mentioned... I think a lot of the visitors and the local residents will be at Intersections or the First Ditch area because it is close to a lifeguarded area with pavilions and what have you, and many of us know that, you know, Polihale, although spectacular has a lot of currents in that area and many of our visitors through guidebooks are... suggested that they go to Kekaha Beach Park. So I want to commend your stats on that and I think unless you are a walker or a jogger or you ride bike, I don't think a lot of people realize how fast people drive throughout this whole island. It could be on the westside, it could be on the eastside, it could be in neighborhoods, and it just seems that nobody respects even a 35 mile an hour speed limit, and especially because of that stretch leading out to PMRF. But I want to commend all of you for taking that initiative and that thought, and especially reminding everyone that this weekend is graduation and all those parties. So it is just a reminder that we all need to slow down and be very cautious and I want to commend you. As I mentioned, your survey was done on a Monday and Friday and consequently that is only a 15 minute period. Again, a reminder, the weekends are a lot, lot more packed, so thank you for taking that time and initiative because I also noticed that during that 15 minute span, there were 12 U-turns and I think if my memory serves me correctly, a couple of... maybe two (2) or three (3) years ago, there was a visiting Japanese couple in a van that did a U-turn near and around that area, and unfortunately, it was hit head on causing some fatalities. And that is where you are going to turn around because that is where the beach you were guided to, so thank you very, very much. I think it was an excellent presentation and as the Chair says, on the Council level, what we can do is to certainly help you out, and please contact Senator Hooser and our Legislative Delegation or Representatives Sagum, Morita, and of course Tokioka. Thank you. Congratulations. Mr. Medeiros: Thank you very much for your time. Chair Asing: Councilmember Kawakami? • COUNCIL MEETING - 7 - June 3, 2009 Mr. Kawakami: Thank you Mr. Chair. I would also like to commend your school teacher Mr. O'Day. He was my school teacher too a long time ago. Not that long ago, but I just want to commend on your eagerness to get involved. This is something that will benefit your whole community and I think just on the westside ,itself because there are a lot of straight aways, people tend to speed, and I just want to bring up the point of how important that Mana drag strip is too, to give youngsters and adults an option to get off the streets, and bring the races to the drag strip. But I really want to commend the data that you guys collected. It is not like you guys just came and said, oh, we think that this is a problem. You guys put some time and effort and it makes the job of your elected officials much easier to support your proposal when you come prepared like this, so good job. Thank you. Chair Asing: With that, Councilmember Kawahara? Ms. Kawahara: Thank you guys for your presentation and I just want to say how proud I am of Waimea 9+~ graders to come here and do such a great presentation. I want to applaud you because you are participating actively in your government. It sometimes takes people a long time to do that if at all, so I am really glad to see you start doing it early. I encourage you also to also continue to do it throughout your lives. The issues that you are going to want to address are things that are important to you... are going to happen throughout your life and you do need to be sure to try and have a voice and be sure to talk to your officials and work with your government because that is what it is there for. It is there to serve you and meet your needs and meet your concerns, so thank you very much and congratulations on your presentation. As Chair Asing says, the Council is very pleased to be able to write a letter asking for the support of the State Engineer, so thank you, and thanks for bringing up the conditions, so that we know what is happening. Thank you. Chair Asing: Councilmember Bynum? Mr. Bynum: Just thanks a lot. I appreciate your concern. I mean when you look at what you presented, it is just logical right? It just makes sense and we all know what that area is like, so why somebody didn't act on this sooner, like that is what we need good citizens for, so thanks for being good citizens. Chair Asing: Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Chair. Mark O'Day, I just wanted to thank you for coming up with such a brilliant way of presenting this because at times, you know how the wheels of government moves. It does take some time and as I sat here when they said that they were Freshmans, I was wondering how we are going to get this accomplished with graduation almost coming up in a week or so, or when you are going to be moving on to be a Sophomore next. But I believe this project is a great project to carry on. Don't stop here. We brought some awareness to the public and hopefully the Garden Island will put a nice article in COUNCIL MEETING - 8 - ~ June 3, 2009 the paper and people will see that. When people see that even if they are driving along and they still see that the 50 miles hasn't been changed to 35 miles... what you brought up, what you students have brought up here before the public will reflect back into their minds and say, wow, you know, they are actually right. This is for the safety of everyone here on the island of Kauai. So just the awareness is something that I really have to give you a lot of congratulations for and your efforts. I can tell you right now, this is going to have some positive benefits, but I would encourage you to continue to work to hopefully see this, you know, as you work through the government process that this can be accomplished. And, again, I really like the idea where we have students participating in government process like this. I think it also helps us as Legislators to make our job easier, so thank you so much again. I want to thank you for all. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Thank you. First of all, to the Freshman and the student body, thank you very much for bringing this to the table and I am going to ask the Chairman who has shared his letter... the intent of the letter to go over to the State Highway's Engineer, but I would like to suggest if I could that we have some kind of formal acknowledgement that it is unanimous from this Council and the word unanimous be entered into your letter. I would also like to ask if you could expand on behalf of the Council, the question regarding the interpretation of U- turns and perhaps they could also respond to the student body on... is that legal, illegal, or what in fact are the typical standards for U-turns on State Highways. I would ask if we could expand your correspondence to include those two (2) items Sir. Chair Asing: It is not a problem. I think we can add whatever Councilmembers feel is in the best interest of getting the job done. Mr. Furfaro: Thank you. Mr. Medeiros: Thank you. Chair Asing: With that, I also want to thank you for taking on this project and moving it forward and we look forward to a successful project. So with that, thank you very much. Do you have anyone else who wants to say anything? Ms. Wright: Actually, I would like to explain what is in the packet that you guys have. For the first five (5) pages is the slide that you guys just saw. After that is our statistics for each day. What we put on the slide was about an average, so these are more exact statistics. The next page is replies that we have from Chief Perry and Raymond McCormick. We also sent out letters to other people as well, other public officials, but they haven't returned... they haven't replied yet. . COUNCIL MEETING ~ - 9 - • June 3 2009 And then on the last few pages are petitions that we have passed out to the students and the students have signed and have returned. Chair Asing: Thank you. Mr. Furfaro: Very well done. Chair Asing: Boy, that is a lot of work that you folks did. Tremendous. Mr. Chang: A lot of work and they are 9~ graders, beautiful. Chair Asing: Great. Ms. Wright: Thank you. Chair Asing: With that, thank you very much. Mr. Kawakami: Mr. Chair, I see a few other students and I don't know if they got to come up and get some camera time or say hi or anything, so why don't you bring them up, so that... Chair Asing: Bring up the other students, so that they can introduce themselves as being part of the project. ANNALISA HARTSELL: Hi, I am Annalisa Hartsell. MARAH GOLDING: And I am Marah Golding. We worked on the PowerPoint they presented. Ms. Hartsell: And I did the Excel sheet. Mr. Bynum: Good job. Chair Asing: And there is a lady on the left who did not introduce herself. Ms. Tran: My name is Angelica Tran. I wrote the letter requesting for your time and I also helped a little bit with the PowerPoint... not as much as Anna, but, yea. Chair Asing: There is a lady that is standing up too who has not been recognized yet. UILANI WRIGHT: My name is Uilani Wright and I have two (2) hats in this. I am a part-time teacher at the high school and I service our ELL students, COUNCIL MEETING. - 10 - ~ June 3, 2009 but I also am a parent and Allyson is my daughter. So I am here to support both roles and I felt that they did an excellent job for a wonderful cause. It is opening our eyes and the public's eyes because this is an issue and like you said, it is during... it is very timely because it is during graduation, but to have the public aware of how dangerous that stretch is with the cars just zooming by. Maybe on a nice Saturday, you ought to sit there at the pavilions and just observe. It can be quite scary especially with the recent accident a couple years that was fatal and then there was one a little aways from that, that we had a fatality again, most recently this year. So we appreciate your time, we appreciate your willingness to listen to our students and I would like to applaud them too for a job well done I think. I concur with you. Thank you. Chair Asing: Mark, do you have any closing statement that you would like to make? Mr. O'Day: That is my pen that I am going to take. Mr. Bynum: Thank you. Chair Asing: Thank you very much. We appreciate that. With that, I'd like to call the meeting to order and can we have a motion to receive? Mr. Kaneshiro: We have a motion on the floor Mr. Chair. Chair Asing: I am sorry. Rules are suspended. There being no objections, the rules were suspended. Chair Asing: Glenn? GLENN MICKENS: Thank you Kaipo. For the record Glenn Mickens. I just want to sincerely congratulate these young people for... this is quite a comprehensive report. It would be a comprehensive report for anybody, but for some 9th grade kids to go through this, getting all these signatures and everything, I just think it is tremendous and I do think that all these speed limits on this island have to be looked at. I think it goes from 25, 35, 50, and back and forth. I think it all has to be looked at, but anyway, I just really want to compliment these kids. They are going to run this island someday and for them to be as active as they are today... in a project like this, I think it shows a tremendous ability to young people. Thank you Kaipo. Chair Asing: Thank you. Is there anyone else? If not, I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: COUNCIL MEETING ~ - 11 - ~ June 3, 2009 Chair Asing: We have a motion on the floor. Any further discussion? All those in favor say aye? The motion to receive C 2009-200 for the record was then put, and unanimously carried. Chair Asing: Next item please? ERNIE PASION, DEPUTY COUNTY CLERK: The next item goes back to page 1 of the agenda which is a communication for receipt. Communication C 2009-193. C 2009-193 Communication (04/24/2009) from the Director of Personnel, transmitting for Council information, the third quarter reports (January-March 2009) relative to vacancies, established positions, new hires, reallocations, and promotions: Mr. Kawakami moved to receive C 2009-193 for the record, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter on page 1 is communication C 2009-194. C 2009-194 Communication (04/28/2009) from Virginia Kapali, Chairperson, Kauai Salary Commission, transmitting for Council information, Resolution No. 2009-O1, relating to the salaries of certain officers and employees of the County of Kauai which was adopted by the Salary Commission at its April 28, 2009 meeting, and recommending amendments to the Kauai County Code related to salaries of certain officers, the County Council, and Council Services employees: Mr. Chang moved to receive C 2009-194 for the record, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters for receipt on page 2 of the Council's agenda are communications C 2009-195 which is a communication from the Planning Director transmitting the Planning Commission's recommendation to Proposed Draft Bill 2291. C 2009-196 which is a communication from the Planning Director transmitting the Planning Commission's recommendation relating to Proposed Draft Bill No. 2290. Communication C 2009-197 which is a communication from the Planning Director transmitting the Planning Commission's recommendation relating to Proposed Draft Bill No. 2293. Communication C 2009- 198 which is a communication from the Director of Personnel Services transmitting reclassification information and C 2009-199, communication from the Director of Personnel Services transmitting for Council information classification request. Chair Asing: Can I have a motion to receive? COUNCIL MEETING - 12 - ~ June 3, 2009 C 2009-195 Communication (05/01/2009) from the Planning Director, transmitting the Planning Commission's recommendation relating to Proposed . Draft Bill No. 2291 to approve increasing the amount of the fine from $500 to $2,000 for persons convicted of violating, permitting, or causing the violation of any of the provisions contained in the Comprehensive Zoning Ordinance (CZO): Mr. Bynum moved to receive C 2009-195 for the record, seconded by Mr. Chang, and unanimously carried. C 2009-196 Communication (05/04/2009) from the Planning Director, transmitting the Planning Commission's recommendation relating to Proposed Draft Bill No. 2290 to approve allowing Small Wind Energy Conversion Systems (S.W.E.C.S) as permitted use in certain County zoning districts subject to requirements and standards as set forth in the proposed draft bill: Mr. Bynum moved to receive C 2009-196 for the record, seconded by Mr. Chang, and unanimously carried. C 2009-197 Communication (05/04/2009) from the Planning Director, transmitting the Planning Commission's recommendation relating to Proposed Draft Bill No. 2293 to approve allowing farm worker housing in the Agriculture Zoning District through the Use Permit process: Mr. Bynum moved to receive C 2009-197 for the record, seconded by Mr. Chang, and unanimously carried. C 2009-198 Communication (05/08/2009) from the Director of Personnel Services, transmitting for Council information, the following classification request which the Department of Personnel Services will be reviewing and taking appropriate action: • Public Works Department, Position No. 1539 (Redescription -Review of Plumber II) Mr. Bynum moved to receive C 2009-198 for the record, seconded by Mr. Chang, and unanimously carried. C 2009-199 Communication (05/13/2009) from the Director of Personnel Services, transmitting for Council information, the following classification request which the Department of Personnel Services will be reviewing and taking appropriate action: • Prosecuting Attorney, Position No. 2801 (Redescription -Review of Special Investigator) Mr. Bynum moved to receive C 2009-199 for the record, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter on page 3 of the Council's agenda. These are matters for approval. • COUNCIL MEETING - 13 - June 3, 2009 C 2009-201 Communication (05/04/2009) from the Executive on Transportation, requesting Council approval to receive and expend $400,000 of a Section 117-Surface Transportation Projects Federal earmark for a comprehensive Multi-Modal Land Transportation System Plan for the County of Kauai: Mr. Chang moved to approve C 2009-201, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next communication is C 2009-202. C 2009-202 Communication (05/08/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 602, Hookena at Puhi, located at 2080 Manawalea Street, Lihu`e, Kauai, Hawaii, 96766, and provide the owner with aone-year waiver of the resale restriction: Mr. Kawakami moved to approve C 2009-202, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next communication for approval is communication C 2009-203. C 2009-203 Communication (05/15/2009) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend the following Byrne Justice Assistance Grant (JAG), pursuant to the American Recovery and Reinvestment Act of 2009 (ARRA) in the amount of $191,079 for salaries and training for the Office of the Prosecuting Attorney, as well as to replace AED Equipment, support the K-PAL football and cheerleading programs, and provide training and overtime for the Kauai Police Department. These funds will be expended for this program from July 1, 2009 to June 30, 2010: Mr. Kawakami moved to approve C 2009-203, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At the bottom of page 3, next matter for approval is communication C 2009-204. C 2009-204 Communication (05/20/2009) from Hawaii Association of Counties (HSAC) Vice President Derek S.K. Kawakami, requesting Council approval of the proposed slate of HSAC Executive Committee Officers for the Fiscal Year 2009-2010 term as follows: • Derek S.K. Kawakami -President • Nestor Garcia -Vice-President • Dennis "Fresh" Onishi -Secretary COUNCIL MEETING. - 14 - • June 3, 2009 • Joseph Pontanilla -Treasurer Mr. Furfaro moved to approve C 2009-204, seconded by Mr. Chang. Chair Asing: Any discussion? Go ahead. Mr. Furfaro: First of all, I want to thank Mr. Kawakami for his early work as Vice-Chair or Vice-President of the association. I am very pleased to see the slate of officers and him becoming the President of our association. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: Just also would like to express my appreciation and congratulations. It is great to have the President of the Kauai County Councilmember. Thank you for your service. Mr. Kawakami: Thank you. Chair Asing: Any further discussion? If not, there is a motion to approve and a second. All those in favor say aye? The motion to approve C 2009-204 was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter on the top of page 4 is communication C 2009-205 and if we could move this to the end of the agenda Mr. Chair. Mr. Furfaro moved to put C 2009-205 to the end of the agenda, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for approval are Committee reports. COMMITTEE REPORTS: BUDGET & FINANCE CONIIVIITTEE REPORTS: A report (CR-B&F 2009-17) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2312 A BILL FOR AN ORDINANCE AMENDING CHAPTER 17A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO BUS FARES FOR THE COUNTY BUS SYSTEM," COUNCIL MEETING ~ - 15 - • June 3 2009 Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2312, Draft 1) A report (CR-B&F 2009-17) submitted by the Budget & Finance Committee, recommending that the following be approved on second and final reading: "Bill No. 2313 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 (Prosecuting Attorney)," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Furfaro, and unanimously carried. (See later for Bill No. 2313) PARKS/TRANSPORTATION CONIIVIITTEE REPORT: A report (CR-PKT 2009-01) submitted by the Parks/'I`ransportation Committee, recommending that the following be received for the record: "P/R,EC 2007-2 Communication (3/15/2007) from Tim Bynum, Parks & Recreation Committee Chair, requesting that the Administration be present to provide the status on responses to the January 19, 2006 follow-up questions regarding Bill No. 2149, Relating to Camping at Lydgate Park," Mr. Furfaro moved for approval of the report, seconded by Mr. Bynum, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters are first reading on page 5 of the Council's agenda. The first bill for first reading is Proposed Draft Bill No. 2290. BILLS FOR FIRST READING: Proposed Draft Bill No. 2290 - A BILL FOR AN ORDINANCE TO ESTABLISH A NEW ARTICLE 28, CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO SMALL WIND ENERGY CONVERSION SYSTEMS: Mr. Bynum moved to receive Proposed Draft Bill No. 2290 for the record, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Go ahead Councilmember Bynum. Mr. Bynum: Thank you Mr. Chair. This bill regarding small wind energy conversion... I wanted to just take a moment. The bill that came from the Planning Commission is further down and the Planning Commission staff and the staff there did, I think an outstanding job of working on the bill and made COUNCIL MEETING. - 16 - ~ June 3, 2009 changes that I largely support, so the motion here is to receive, and we entertain I think the bill that came back from the Planning Commission. Chair Asing: Thank you. Any further discussion? Councilmember Furfaro? Mr. Furfaro: Yes, again, I would see the bill that came back from the Planning Commission is the one that is in front of us on the small wind energy conversion system in particular because we need to clear our understanding of expectations of DLNR as they wanted some sort of compliance with the endangered species act and I think it is covered better in the piece that comes back from the Planning Department, so I would second this... move to receive wholeheartedly. Chair Asing: Thank you. Any further discussion? If not, we have a motion and a second. Roll call. The motion to receive Proposed Draft Bill No. 2290 for the record was then put, and carried by the following vote: FOR RECEIPT: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST RECEIPT: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. Chair Asing: Motion carried. Chair Asing: Next item please? Mr. Nakamura: The next first reading bill is Proposed Draft Bill No. 2291. Proposed Draft Bill No. 2291 - A BILL FOR AN ORDINANCE AMENDING SECTION 8-24.1, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE: Mr. Furfaro moved for passage of Proposed Draft Bill No. 2291 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for July 8, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kaneshiro, and carried by the following vote: Chair Asing: Any discussion? If not, roll call please. FOR PASSAGE: Bynum, Chang, Furfaro, Kaneshiro, Kawahara, Kawakami, Asing TOTAL - 7, AGAINST PASSAGE: None TOTAL - 0, EXCUSED & NOT VOTING: None TOTAL - 0. • COUNCIL MEETING - 17 - June 3, 2009 Chair Asing: Can we have the next item please? Mr. Nakamura: The next bill for first reading is Proposed Draft Bill No. 2293. Proposed Draft Bill No. 2293 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing): Mr. Bynum moved to receive Proposed Draft Bill No. 2293 for the record, seconded by Mr. Chang. Chair Asing: Any discussion? If not, all those in favor say aye? The motion to receive Proposed Draft Bill No. 2293 for the record was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next bill for first reading is Proposed Draft Bill No. 2317. Proposed Draft Bill No. 2317 - A BILL FOR AN ORDINANCE TO ESTABLISH A NEW ARTICLE 28, CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO SMALL WIND ENERGY CONVERSION SYSTEMS: Mr. Furfaro moved for passage of Proposed Draft Bill No. 2317 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for July 8, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Bynum. Chair Asing: Any discussion? If not, roll call please. The motion for passage of Proposed Draft Bill No. 2317 was then put, 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: Thank you. Motion carried. Next item please? Mr. Nakamura: The last bill for first reading is Proposed Draft Bill No. 2318. Proposed Draft Bill No. 2318 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, RELATING TO THE • COMPREHENSIVE ZONING ORDINANCE (Farm Worker Housing): Mr. Furfaro COUNCIL MEETING. - 18 - • June 3, 2009 moved for passage of Proposed Draft Bill No. 2318 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for July 8, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kaneshiro. Chair Asing: If not, do we have anyone in the audience who wants to speak on this item? No, okay. With that, Councilmember Furfaro? Mr. Furfaro: Yes, I just wanted to point out that this is the draft that came from the Planning Department. It is pretty comprehensive in some of the goals we wanted to extend. I did want to voice my concern that the dollar amount that was associated with this for revenues for farming activity, I do have some concern with... out of the first draft especially as it relates to 35,000 being attributed to a small farm. I would like to have some further study on that as well as the fact that I would like to get some HUD information regarding to the value of housing as it relates to not setting the hours for the standard too high, but fair and parallel to what is expected out of HUD. Those are the only two (2) concerns that I have of the piece that came back from the Planning Commission. Chair Asing: Thank you. Councilmember Kaneshiro? Mr. Kaneshiro: Thank you Mr. Chair. Councilmember Furfaro made a good point. For me, I would probably work with the Farm Bureau and get a survey... get a survey of all the farms that are on the island and look at the... you know, the potential revenues that are generated by farms and average this all out because when I look at something like this with the $35,000 being revenue generating from a farm especially if you talk small farmers, it might be quite difficult to achieve, so that was one of the first things that popped up in my mind also. So, you know, other than that, the bill covered much of the things that probably, you know, we can work on and support that came from the Planning Commission, so I do have some reservations about placing a dollar amount on what farmers need to produce or earn off a farm before being able to even have some type of a farm worker housing. So that is my concern that I have at this point, so thank you Mr. Chair. Chair Asing: Thank you. Any further discussion Councilmembers? If not, roll call please. The motion for passage of Proposed Draft Bill No. 2318 was then put, 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. • - 1 - • n 3 2009 COUNCIL MEETING 9 Ju e , Chair Asing: Thank you. Next item please? Mr. Nakamura: The next matter is a... are bills for second reading. The first bill for second reading is Bill No. 2312, Draft 1. BILLS FOR SECOND READING: Bill No. 2312, Draft 1 - A BILL FOR AN ORDINANCE AMENDING CHAPTER 17A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO BUS FARES FOR THE COUNTY BUS SYSTEM: Mr. Furfaro moved for adoption of Bill No. 2312, 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? Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. I just wanted to mention that I was worried about the bus fares because there wasn't much of a turnout for the public hearing, but I think that is a condition of people that actually are using the bus and may have difficulty getting to a meeting at a specific time. I was reassured by information that was given to me from the Cost Control Commission and the Executive Director herself from the Transportation Agency that stated that they believe there wasn't going to be a significant impact for the people riding the bus in this slight increase. One concern that I did have was why was it for an increase for one year and then a second year, but overall, I do like to support this bill. Thank you. Chair Asing: With that, what I would like to do is suspend the rules. There being no objections, the rules were suspended. Chair Asing: Glenn? GLENN MICKENS: Thank you Kaipo. For the record, Glenn Mickens. Daryl, thanks for this information. I really appreciate this. The question that was asked before, how much does it costing... $4.2 million and I think Jay pointed out 80... I don't know what $4.2 million divided into $570,000... it will be $590,000 I guess by the time the new thing is added on. (Inaudible)... I think he said something like 81% Jay. All I am wondering is, has it been investigated to find out... I understand that in Northern California they had this problem with the increased cost of operating these buses, so they went to a taxi type of thing where they had a contract with the taxi company up there. The taxi companies were on a standby basis when elderly people (inaudible) people called and they could pick them up, take them shopping, take them to the hospital whatever. They found out it was far cheaper than operating these buses, but I just wonder whether this has been investigated here on Kauai. I note the buses when I sit over here sometime. COUNCIL MEETING. - 20 - • June 3, 2009 They are empty most of the time. I don't know how many people are actually riding these things, so, you know, I just think maybe it might be more cost effective if some system like this were investigated because I did hear it worked. But, anyway, Daryl, again, thanks for getting this information. I do appreciate it. Thank you Kaipo. Chair Asing: Is there anyone else? 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: We have a motion on the floor and a second. Any further discussion? Councilmember Furfaro? Mr. Furfaro: Mr. Chair, I just want to acknowledge Mr. Kaneshiro for filling the request and getting the information to Mr. Mickens and thank you very much Mr. Kaneshiro. Chair Asing: With that, any further discussion? If not, roll call please. The motion to adopt Bill No. 2312, Draft 1 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: Thank you. Next item please? Mr. Nakamura: Last bill for second reading is Bill No. 2313. Bill No. 2313 - 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 (Prosecuting Attorney): Mr. Kawakami moved for adoption of Bill No. 2313 on second and final reading, and that it be transmitted to the Mayor for his approval, 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. COUNCIL MEETING • - 21 - ~ June 3, 2009 Chair Asing: Thank you. We will take a caption break at this time and then we will return for the executive session before we take the last item. With that, we are in a caption break now. There being no objections, the Chair called for a recess at 10:16 a.m. The meeting was called back to order at 10:50 a.m., and proceeded as follows: Chair Asing: With that, County Attorney. Mr. Bynum: Mr. Chair. Chair Asing: Yes. Mr. Bynum: I have a motion pending on the floor. Chair Asing: Not yet. We are going to have... let's finish the agenda. Mr. Bynum: Are we going to do the executive session first? Chair Asing: Yes. Mr. Bynum: Then reconvene? Chair Asing: Yes. We still have one more item on the agenda besides the executive session. There being no objections, the rules were suspended. ALFRED B. CASTILLO, COUNTY ATTORNEY: Council Chair, Councilmembers, Al Castillo County Attorney. I have three (3) matters that I would like for you to consider for executive session. This would be ES-386, ES-387, and ES-385. Let me read the first one, 386. ES-386 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide Council with a briefing and to request authority for a possible settlement proposal in the case of County of Kauai vs. Darius Wu, et al., Civil No. 08-1-0173 (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-387 Pursuant to Haw.Rev.Stat. §§92-4 and 92-5(a)(4), (6) and (8), and Kauai County Charter section 3.07(E), the purpose of this executive session is to provide the Council a briefing on Planning Commission of the County of Kauai vs. Patricia W. & Michael G. Sheehan, Sr. Permit Numbers: Special Management COUNCIL MEETING. - 22 - • June 3, 2009 Area Use; Permit SMA (U) 87-8; Use Permit U-87-32; Special Permit SP-87-9; Class IV Zoning Permit Z-IV-87-40, (Order to Show Cause Hearings) 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-385 Pursuant to Haw.Rev. Stat. Sections 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 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. What I would like to do is... Glenn? Al, let Glenn come up please. GLENN MICKENS: Thank you Kaipo. Just for one quick question. It is regarding this ES-385. Is there anyway that we can get anymore information what this is about. The other two (2) are pretty explanatory. 385 says, Charter amendments adopted in the 2006 General Election, so that is going to be more than one Charter amendment that happened in 2008 election, but is there any other information that we could be privy to or is that going to be in executive session. Chair Asing: Executive session as stated here Glenn. Mr. Mickens: Okay, thank you. Chair Asing: Thank you. I'd like to call the meeting back to order now and have a motion to move into executive session. Mr. Furfaro moved to go into executive session on ES-386, ES-387, and ES-385, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: We are going to move into executive session. There being no objections, the Chair called for a recess at10:53 a.m. The meeting was called back to order at 1:45 p.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, can we have the next item please? Mr. Nakamura: Mr. Chair, we are back on page 4 of the Council's agenda on communication C 2009-205 for approval. COUNCIL MEETING • - 23 - • June 3 2009 C 2009-205 Request (05/22/2009) from the Office of the County Attorney for authorization to expend additional funds up to $20,000 for special counsel to represent the Planning Commission of the County of Kauai in Planning Commission of the County of Kauai vs. Patricia W. & Michael G. Sheehan, Sr. , Permit Numbers: Special Management Area Use; Permit SMA (U) 87-8; Use Permit U-87=32; Special Permit SP-87-9; Class IV Zoning Permit Z-IV-87-40 (Order to Show Cause Hearings) and related matters: Mr. Furfaro moved to approve C 2009-205, seconded by Ms. Kawahara, and unanimously carried. Mr. Furfaro: Excuse me Mr. Chair, I think you might have had someone from the audience. Chair Asing: Oh, my apologies. Was there someone who wanted to speak on this item? Bruce? No, okay. Thank you. I'd like to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We are now... I will call the meeting back to order and the item that Councilmember Bynum wants to add to the agenda, in my opinion, is precluded by Charter 92-7(d) Sunshine Law. With that, I would like to have... Mr. Bynum: Mr. Chair? Chair Asing: Hold on. I would like to have the County Attorney up. There being no objections, the rules were suspended. Mr. Castillo: County Attorney Alfred Castillo. Chair Asing: County Attorney, before I have you say anything, let me just read Hawaii Revised Statute Chapter 92-7(d) and I am going to read it into the record. No board shall change the agenda once filed by adding items thereto without atwo-thirds recorded vote of all members to which the board is entitled provided... and this is the most important part. Provided that no item shall be added to the agenda if it is of reasonably major importance and the action thereon by the board will affect a significant number of persons. In my opinion, the subject matter that Councilmember Bynum is making reference to is the Council rules and it is major in nature and, therefore, does not even qualify for that to be added. So I would like to have your opinion please. Mr. Castillo: Council Chair and members of the Council, good afternoon. Can I have a few minutes to review what I have just been handed? COUNCIL MEETING. - 24 - ~ June 3, 2009 Chair Asing: Sure. Mr. Castillo: And may the record reflect that I was handed by Councilman Bynum or Councilmember Bynum three (3) pages. One appears to be... I don't know if everyone has it. Mr. Bynum: I just passed it out. Mr. Castillo: One appears to be the e-mail communications, one is a... the second page is a letter dated February 17, and the next page is a resolution. Mr. Furfaro: May I ask a question Mr. Chair? Chair Asing: Go ahead. Mr. Furfaro: This seems to be very close to the material that was read by the Chair, but can I just ask that since this response came from your office, have you seen this before? Mr. Castillo: Wait, wait. No, a... I have not seen it... first of all, I have not seen it before and second of all, I hazard to give it any attention right now because I don't want it to become an agenda item if it is not one that is appropriate to be an agenda item. So, right now, I will take a look at this and I will give you what the County Attorney's ruling is on it. Mr. Furfaro: You have answered my question because this seems to be someone of a legal background that has sent a response and you have said to me that you have not seen it, therefore, I would support your request for a recess. Chair Asing: Thank you. What I would like to do is I would like to call for a recess, so that it will give you some time to read the item. Mr. Castillo: Okay, thank you. Chair Asing: With that, thank you. There being no objections, the Chair called for a recess at 1:50 p.m. The meeting was called back to order at 2:00 p.m., and proceeded as follows: Chair Asing: County Attorney, have you read the items before you? Mr. Castillo: Yes I have. Mr. Bynum: Mr. Castillo... • • COUNCIL MEETING - 25 - June 3, 2009 Chair Asing: Mr. Bynum, let's have some order here. Mr. Bynum: I asked to be recognized. Chair Asing: I asked the question of the County Attorney. Please have the courtesy... Mr. Bynum: You made a statement. Chair Asing: Please have the courtesy... I asked for an opinion, didn't I? Mr. Bynum: You made a statement. Chair Asing: Did I ask for an opinion? Mr. Bynum: And you made a statement. Chair Asing: Yes. Mr. Bynum: I would like to also make a statement. Chair Asing: Shall we do it in order like we normally do? Mr. Bynum: If the County Attorney is going to make a ruling, that precludes me from having the same privilege... Chair Asing: I am asking for an opinion. Mr. Bynum: I am asking... Chair Asing: Please have the courtesy of having some order here and I have asked for an opinion and you want to intercede by asking something else. We normally have people recognized and move, and I have made a statement, I have asked a question of the County Attorney, and I deserve an answer before we move onto the next person. With that... Mr. Castillo: Yea, I... with that being said and how this thing is progressing, I think my legal advice and my legal opinion falls under an unanticipated issue that requires executive session. And under... pursuant to H.R.S. Chapter 92 of the Hawaii Revised Statutes, I request that we go into executive session for the purpose of discussing the... for the purpose of consultation because it involves your powers, your duties, your privileges, your immunities, and/or your liabilities as the County Council as they relate to this question. And it COUNCIL MEETING. - 26 - • June 3 2009 is not even an agenda item at this point in time, but I would like to brief you or give you advice on the law regarding all of this... all of the issues involved. Chair Asing: With that, let me ask this question. With your answer, is it legal for us to move into executive session at this particular time? Mr. Castillo: First... yes, it is because it is unanticipated and the questions that arise out of this particular set of circumstances, require that we go into executive session because it touches upon liabilities and duties as the Council. Chair Asing: Okay. I am going to ask that we move into executive session, but prior to moving into executive session, I will recognize Councilmember Bynum. Mr. Castillo: But I caution... wait. I am sorry. I just want to make sure... I am sorry to interrupt. What I would warn is, Councilmember Bynum, you cannot touch upon the reasons why you want to go into this because you will be arguing your point regarding the issues that you want to present regarding potential agenda items that were not docketed for today. We would be in breech of the Sunshine Law, so I caution you that I would have to stop you if you try to do that. Mr. Bynum: And I would appreciate that guidance. Can I have the floor Mr. Chair. Chair Asing: Yes. Mr. Bynum: Thank you. The Chair has made a statement that he believes that the motion that is allowed for... under... and he read the law... that is allowed for under the Hawaii Revised Statutes is... violates Sunshine. Mr. Castillo: Wait, wait, wait. I am sorry, I have to stop you. I have to stop you because you are going into the merits of the Sunshine Law. The purpose of what is happening right now is whether or not we are going to go into executive session and that is all. Anything outside of that would be beyond... Mr. Bynum: The Chair has made a statement about his opinion. Mr. Castillo: No, right now, the request from your County Attorney to protect you is for us to go into executive session. Mr. Bynum: And we are discussing that whether we go into executive session, right? Mr. Castillo: Well, then it is yes or no, but you want to talk about the Sunshine Law regarding what you introduced. • - • n 3 2009 COUNCIL MEETING - 27 Ju e , Mr. Bynum: Well, we haven't had the vote on introducing anything. I just want to say what this document is that I passed out. Mr. Castillo: See, that is precisely my point Councilman Bynum. My point is, you cannot get into the subject matter that started this entire thing. The question before this body right now and my request is that we go into executive session, so that I may protect this body, and that is on the floor. Chair Asing: Councilmember Furfaro? Mr. Furfaro: Yes. I just want to point out that I think my... I just want to point out that I appreciate your comments Al, but while we are on breaks specifically the past modus operandi has been, by policy from the County Attorney's Office, that these responses come back to us after you have had time to digest it. I am just saying that has been the past practice. The reason that I wanted to point out and you keep using the term here... this violation of the Sunshine Law possibly could affect the body, the body, and I haven't had an opportunity to get that clarity. Not that I don't recognize what Mr. Bynum chose to pass out because I have had similar request even prior to the dated material that is there. But you are saying to us right now that immunities regarding and protection for the body is here. This is not an individual item, this is an item that affects the body based on the Sunshine Law. Mr. Castillo: At affects... it is a whole string of things that can take into effect. You know, at first yea, it can involve the body as the Council, it can involve potential liability to a specific Councilmember. You know, and I just want to prevent any wrong doing by this body. Mr. Furfaro: I appreciate the caution that you are passing out. Mr. Castillo: And, and... that is all. Chair Asing: Okay, Councilmember Bynum? Mr. Bynum: So your argument is if we have a public discussion about what the Sunshine Law allows, that we will be violating the Sunshine Law. Mr. Castillo: I am sorry Councilmember Bynum. Mr. Bynum: I think we will be violating the Sunshine Law if we go into private session to discuss this. Mr. Castillo: You know, please do not put words in my mouth. Mr. Bynum: I asked... COUNCIL MEETING. - 28 - • June 3 2009 Mr. Castillo: No, no, no, no. You made a statement there that was not true and I asked... well, all I am asking is I am asking that we go into executive session because these are sensitive matters that involves your powers, your duties, your privileges, your immunities, and/or liabilities, and it is... this matter was unanticipated and that is the reason why I am requesting that we go into executive session. Now, if there is a motion to defer and I don't know how that would work regarding this subject matter, but I am ready to go into executive session and to advise this body, and then we can move on from there. Chair Asing: Thank you. With that, if there are no objections, I would be asking this body to move into executive session, so what I would like to do is excuse you and I am going to call the meeting back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: And have a motion to move into executive session. With that, Councilmember Bynum? Mr. Bynum: So you are going to have a motion and then we are going to vote? Chair Asing: To move into executive session. Mr. Bynum: But we can't discuss this? Chair Asing: No. Mr. Kaneshiro: It is not agendaed. Chair Asing: It is not agendaed. Mr. Castillo: Wait, wait, wait, wait. I am sorry. Chair Asing: The meeting is now called to order. I have the floor, okay. And now as presiding officer, I made a recommendation that we move into executive session as suggested and recommended by the County Attorney. So I am following the County Attorney's lead to move into executive session and I am asking for a motion to move into executive session. Can I have a motion to move into executive session? Mr. Kawakami moved to go into executive session, seconded by Mr. Kaneshiro. Chair Asing: Any discussion? Go ahead. • - ~ n 3 2009 COUNCIL MEETING - 29 Ju e , Ms. Kawahara: I just have a question. If we go into executive session, does it... when we come back, is there any... is that going to preclude... it is possible that would preclude discussion on the item? Chair Asing: I can't answer you Lani. I don't know. Ms. Kawahara: So we don't know what the result will be if we go into executive session? Chair Asing: We are taking a recommendation from the County Attorney. I think it is a reasonable move. What do we do, say no County Attorney, we are not going to agree with you and what do we do? I mean that is not the way to do it. Ms. Kawahara: Okay. Chair Asing: I am not going to chair a meeting and have discussions made ignoring the County Attorney entirely. I think I need to depend on the County Attorney for at least legal advice and guidance, and that is what I am trying to do. Ms. Kawahara: Okay, I just wanted to clarify if there was a set thing that would come out of it. Thanks. Chair Asing: Okay. So we had a motion and a second to move into executive session. Mr. Furfaro: I want to share with you... based on past practice and this item came up quite abruptly this morning. My preference would have been really to defer and see if we couldn't get a written response from the County . Attorney, but it obviously looks as if I do not have the votes for that. But on his advice to get this to the next step and see if it can even be put on the agenda based on the fact that this item seems to be of a serious nature and should have gotten the appropriate agenda time, but my preference would have been to defer. Chair Asing: Okay. Any further discussion? If not, all those in favor say aye? Roll call vote please. The motion to go into executive session was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Chang, Furfaro, Kaneshiro, Kawakami, Asing TOTAL - 5, AGAINST EXECUTIVE SESSION: Bynum, Kawahara TOTAL - 2, EXCUSED & NOT VOTING: None TOTAL - 0. COUNCIL MEETING. - 30 - ~ June 3 2009 Mr. Nakamura: Five (5) ayes, two (2) no's Mr. Chair. Chair Asing: Motion carried. We are going to move into executive session. Prior to moving into executive session, we have a certificate that is going to be presented by Councilmember Kawakami. Mr. Kawakami: Bynum. Chair Asing: I am sorry. Councilmember Bynum and with that, we are in recess. There being no objections, the Chair called for a recess at 2:14 p.m. The meeting was called back to order at 4:16 p.m., and proceeded as follows: Chair Asing: With that, can we have the County Attorney up. There being no objections, the rules were suspended. Chair Asing: County Attorney please. Mr. Castillo: Alfred Castillo, Jr., County Attorney. Council Chair, members of the Council, good afternoon again. Mr. Bynum: Good afternoon. Ms. Kawahara: Good afternoon. Mr. Castillo: I have reviewed the proposed amendment to the agenda and in actuality it is not only a proposed amendment, it is an addition to the agenda. There are different rules and regulations and laws that apply in this case or with this issue. And basically, no board shall change the agenda and I am reading from the Sunshine Law. No item shall be added to the agenda if it is of reasonably major importance and action thereon by the board will affect a significant number of persons. Now this is the Sunshine Law. Our County ordinance... I am sorry, our County Charter gives the Chairman as the Presiding Officer of the Council certain latitude and certain amount of discretion. Now, the . first analysis is to look into the nature of the proposed change in the agenda and looking at the item whether it is just nominal or whether it is of reasonably major importance. What I submit and my ruling as your County Attorney is that the proposed resolution encroaches upon the duties of the Chairman as the Presiding Officer of the Council. Therefore, it is of reasonably major importance and the way that the County Council is runned in this County affects all of the people of this County. Therefore, the Sunshine Law in this case definitely applies. What it means for the people of this County is that an agenda item of this nature to be in conjunction to follow the Sunshine Law... what it means is you have to post it on the agenda. It has to be posted and there are rules and regulations regarding the • COUNCIL MEETING - 31 - June 3, 2009 posting of a proper agenda item. And in this case, it was not done within the appropriate amount of time. What it means is that the people of Kauai did not have the opportunity to know what was placed on the agenda and that is the reason for the Sunshine Law. Based on that, the mere nature of this bill or this resolution being proposed is in violation of the Sunshine Law and should not be considered at all. It is inappropriate, therefore, I submit to this body that this matter not be considered and because I don't want this body to violate the Sunshine Law. That is all. Chair Ayng: Thank you. Councilmember Bynum? Mr. Bynum: Having heard your opinion, could one make a motion to add this item to the following agenda? Mr. Castillo: The... what I submit that you should do is follow the County Charter and follow the resolution regarding how bills are placed on the agenda. Mr. Bynum: So I have done that and the bill was not placed on the agenda, so I would like to look at the Council rules and discuss what my efforts have been. Mr. Castillo: You know, I caution Councilmember Bynum that what I see here is your attempting to voice your opinion regarding the County Attorney's opinion regarding the Sunshine Law and your voice saying, the very nature of what you wanted to introduce. It is not proper at this time and... so I respectfully ask you to heed my advice regarding not violating the Sunshine Law. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, so to the County Attorney, what I am hearing is... and I guess we would have to make a motion on "no" to amend today's agenda. That is your recommendation. Mr. Castillo: No, my recommendation is it is improperly before this board. Mr. Furfaro: Okay. Mr. Castillo: And to... the reason why I am saying that is to vote on it and to say discussion invites a violation of the Sunshine Law which I say we should not do. Mr. Furfaro: Okay, and I want to make sure that I use the term today because as you spoke earlier, clearly in my opinion is the rules of the Council COUNCIL MEETING. - 32 - • June 3 2009 which, in fact, puts us in a very awkward position with the laws of the Sunshine rules as they apply to us. Chair Asing: Okay. Anything else? Go ahead Councilmember Kawahara. Ms. Kawahara: Thank you Al and I want to say that I hope after I ask you this question we will still be friends. This was all in the act of democracy and I wanted to find out and be sure what we are doing here before we continue. My question here is, what government agency... well, I am going to tell you. What government agency administers the Sunshine Law? Mr. Castillo: Okay. Ms. Kawahara: Which you just spoke so eloquently on and said that you want us to follow... Mr. Castillo: No, I... first of all, let me address your comment about can we still be friends. Ms. Kawahara: Smile. Mr. Castillo: No, you have your duty as a Councilperson and I have a duty to defend and protect the constitutions of the United States and of this State. I have the duty to protect this County. In terms of administering the Sunshine Law, I have given you legal advice regarding the Sunshine Law. It is my duty. If you want to go against this... against my recommendation, my advice, then I cannot tell you what to do. You are a Councilperson, you have the constituent to answer to, but I can only tell you what the law is and why we shouldn't get into this area. And I ask that, you know, what we are doing right now is talking about the proposed amendment which I say this should end right now because it is in violation of the Sunshine Law. This is not agendaed, properly agendaed. Ms. Kawahara: Okay. Chair Asing: Okay, Councilmember Kawahara. Ms. Kawahara: Thank you. I want... Mr. Castillo: You're welcome. Ms. Kawahara: You still didn't say whether we are going to be friends, but that is okay. The... according to what I am reading here, the OIP oversees the uniform information practices act and that is the agency that administers the Sunshine Law. The question and you will stop me, I am sure, because I ask if you would. The question here was, we were proposing to change to - - ~ 20 COUNCIL MEETING 33 June 3, 09 add an agenda item and there is a disagreement between... well, I would disagree with what your finding was and what the finding that I am going on is an OIP finding. Mr. Castillo: Again, here we discuss... you know, the OIP in 2002, September, did say that a proposed resolution that is not agendaed is not... you cannot discuss it because it will be in violation of the Sunshine Law. Ms. Kawahara: Yes. Mr. Castillo: Again, Council Chair, you know, I ask that we stop this line of questioning because what we are doing is we are talking about anon- agended item that is in violation of the Sunshine Law. I don't know how many times I have to repeat myself. Ms. Kawahara: Okay. So I just want to finish what I wanted to say. Chair Asng: Go ahead. Ms. Kawahara: Thank you Chair Asing. The 2002 ruling that you are speaking of, I understand. I also understand that you can add something to the agenda if it does not appear to be of reasonably major importance or affect a significant number of people which is where the area we are having our issues and our discussion. I just wanted that on the floor and wanted to be sure that I was respectfully disagreeing or disagreeing with what you are asking us to do. ' Mr. Castillo: You know, I am not asking you to agree with me, I am just giving you the legal advice based on my almost 30 years of experience. Ms. Kawahara: And since I am not sure how far and where this is going to go, I... for point of information, is this the last time we are going to get to discuss? Chair Asing: Yes. Ms. Kawahara: Okay. I wanted to say that I think all of us are here and trying to do the best jobs that we can. We have all been elected to this table and as such, the constituents that we represent have the right to be able to expect that we can do our jobs well for them and being able to do that job well relies a lot on the rules of our Council. That, to me, and it is said here in my statesmanship manual from Mr. Tacbian that our Council rules are a living document and we are supposed to adopt the questioning attitude toward Council procedure... always trying to improve those procedures and what is happening today... it is my belief that I am trying to improve those procedures and Councilmember Bynum is trying to improve those procedures and whether or not we are going to be able to do it, I don't know, but I want to be sure that constituents understand what is happening COUNCIL MEETING - 34 - • June 3 2009 here because it is all... it is quite vague, but understandably so for me. I just want to be able to do my job and I need to be able to be sure that I can do it effectively with... and whether or not the Council rules allow me to do that is my question and I am done. Thank you. Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I just want to go on record again of objecting to the executive session that we held. I don't believe there was anything that was discussed there that couldn't have been discussed in public. Mr. Castillo: Wait. Chair Asing: Hold on Councilmember Bynum. Mr. Castillo: Now you are really in violation of the Sunshine Law and I caution you to stop because you cannot allude to what happened in executive session. That is inappropriate. Mr. Bynum: I just objected to us having one. Mr. Castillo: You cannot do that. Mr. Bynum: I am done with that. Mr. Castillo: You can object, but what you were alluding to was what was happening in executive session which is confidential. Mr. Bynum: I don't think I said anything specific. Chair Asing: Councilmember Bynum, be careful. Mr. Bynum: I will move on from that. Chair Asing: Be careful. You know that you are trying to expose us to executive session items. That is what you just did. Mr. Bynum: No Sir, I am not. Chair Asing: That is what you just did. Mr. Bynum: No Sir. Chair Asing: And be very careful. - - ~ n 2 COUNCIL MEETING 35 Ju e 3, 009 Mr. Bynum: I find it ironic .that the Sunshine Law is being used to censure open dialogue about... and that today we have had people express their opinion and we are dancing all around this and anybody who watches this in the public would say, what the heck is going on when it is simple and straight forward. So I just think it is very ironic that a law intended to bring Sunshine is being used to censure. Mr. Castillo: I agree with you. I agree with you totally Councilman Bynum because it is simple. It really is simple and the simple process for the people of this community is to have Sunshine. When there is an agenda item of this significance, the people of Kauai need to know way ahead of time. The people of Kauai need to have proper notice. That is what the Sunshine Law brings about. What is being trying... what your proposal here takes away from the Sunshine Law. You can disagree, but it takes away from the Sunshine Law and it is in violation of the Sunshine Law and we have an OIP opinion, but I don't need the OIP opinion. It is basically the law. Mr. Bynum: So it is okay to say that OIP attorney has disagreed with you. That is okay to say? The State agency had said... Chair Asing: Councilmember Bynum, you know, I am going to call this meeting back to order ~ and I am going to adjourn the meeting. The meeting was called back to order, and proceeded as follows: Chair Asing: So the meeting is... Ms. Kawahara: (Inaudible)... do we take a vote? Chair Asing: I am going to call the meeting back to order and the reason I am doing it is because we have a County Attorney's opinion that we are in violation of the Sunshine Law if we entertain it. We have that, that was just presented to us. So with that said, the meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: And the meeting is now adjourned. Thank you. ADJOURNMENT: There being no further business, the meeting was adjourned at 4:32 p.m. COUNCIL MEETING - 36 - ~ n 2 Ju e 3, 009 Respectfully submitted, PETER A. NAKAMURA County Clerk /lki ! SPECIAL COUNCIL MEETING JUNE 10, 2009 The Special 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, June 10, 2009 at 8:37 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 (present at 8:41 a.m.) Honorable Lani T. Kawahara Honorable Derek S. K. Kawakami Honorable Bill "Kaipo" Asing, Council Chair PETER A. NAKAMURA, COUNTY CLERx: Just for the record Council Chair, Councilmember Kaneshiro called to inform us that he will be running a little bit late this morning. Chair Asing: Yes, thank you. Before we start the meeting this morning, we received... the Council received some unfortunate news that Councilmember Duke Bainum of Honolulu County Council passed away. And what I would like to do is a... in memory of Councilmember Bainum, we have a minute of silence. Thank you. With that, Mr. Clerk, can we have the first item please? Mr. Nakamura: The first item is the approval of the agenda. APPROVAL OF AGENDA: Mr. Furfaro moved for approval of the agenda as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Can we have the first item please? Mr. Nakamura: The first item for approval is communication ` C 2009-207. C 2009-207 Communication (05/21/2009) from the Director, Office of Economic Development, requesting Council approval to apply for, receive, and expend a $20,000 grant from the Hawaii 50th Anniversary of Statehood Commission to enhance the 50 Years of Hula program held at the Lihu`e Airport: Mr. Furfaro moved approve C 2009-207, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? SPECIAL COUNCIL TING -2- June 10, 2009 Mr. Nakamura: The next matter is communication C 2009-208. C 2009-208 Request (06/03/2009) from the Office of the County Attorney for approval to expend funds up to $75,000 to pay for work done by special counsel regarding Charter Amendments and other related matters. Mr. Nakamura: If we could move this to the end of the agenda Mr. Chair. Chair Asing: Thank you. We will move this to the end of the agenda. Can we have the County Attorney up please? We will be going into executive session to handle ES-388. Prior to that, County Attorney please. There being no objections, the rules were suspended. MICHAEL DAHILIG, DEPUTY COUNTY ATTORNEY Good morning Council Chair. Chair Asing: Good morning. Mr. Dahilig: My name is Mike Dahilig on behalf of the County Attorney Al Castillo who is actually on leave right now, so I am standing in for him. ES-388 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to consult with the Council's attorney regarding the charter amendments adopted in the 2008 general election and other related matters. This consultation involves the 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. Mr. Furfaro moved to go into executive session on item ES-388, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: We are now going to move into executive session. Thank you. There being no objections, the Chair called for a recess at 8:41 a.m. The meeting was called back to order at 10:15 a.m., and proceeded as follows: Chair Asing: With that, Mr. Clerk, can you read the next item please? , if SPECIAL COUNCIL 1Vlt'~ETING -3- ~ June 10, 2009 Mr. Nakamura: Council Chair, we are back to agenda item C 2009-208 for approval. C 2009-208 Request (06/03/2009) from the Office of the County Attorney for approval to expend funds up to $75,000 to pay for work done by special counsel regarding Charter Amendments and other related matters: Mr. Furfaro moved to approve C 2009-208, seconded by Mr. Chang, and unanimously carried. Chair Asing: This meting is now adjourned. Thank you. ADJOURNMENT: There being no further business, the meeting was adjourned at 10:16 a.m. Respectfully submitted, PETER A. NAKAMURA County Clerk L COUNCIL MEETING June 16, 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 Tuesday, June 16, 2009 at 9:05 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. Kaneshiro moved for approval of the agenda as circulated, seconded by Mr. Furfaro. Chair Asing: Any discussion? Ms. Kawahara: Sir, Chair, hi. I wanted to make a motion to add a communication to the agenda. Ms. Kawahara moved to add a communication dated June 16, 2009 to the agenda, seconded by Mr. Bynum. Ms. Kawahara: The motion... the communication respectfully request agenda time on the July 8 Council Meeting to discuss the following matters including the Councilmember's agenda... access to the agenda, placement of public documents including meeting minutes on the County's website, equitable and timely circulation of Council Service documents, and general access to information by the public and Councilmembers. We believe it is a modest and reasonable request and also reflects the wording of an online citizen petition that... as of now is 290 citizen signatures. Chair Asing: Well, it is a little unusual, but I am not sure what this is intended to do. Mr. Furfaro: Well, it looks to me Mr. Chair if I may have the floor. Chair Asing: Yes, go ahead. s COUNCIL MEETING - 2 - ~ June 16, 2009 Mr. Furfaro: That there are... there is a request for the purpose of... what was the date you said? Ms. Kawahara: July 8. Mr. Furfaro: July 8 to put three (3) items on the agenda for the purpose of discussion. That does not sound unreasonable. I would like to make note again though, for discussion purposes... Ms. Kawahara: Yes, and it is for four (4) items. Chair Asing: Can I have the County Attorney up? ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good morning everyone. Al Castillo, County Attorney. Chair Asing: Good morning. Mr. Kaneshiro: Morning. Mr. Castillo: Okay, I have just been handed a communication dated June 16, 2009 and without reading the body of the communication... basically, from what I gather is that this is a communication that Councilmember Kawahara request at this moment in time to add to the agenda. Let me put this in perspective for all of you, so that we have an established train of thought. The last time and when I look at this, it is a communication and it is a communication requesting agenda time for another date, July 8. So the question becomes how does this differ from the last time that I was here regarding a request to put another matter on the agenda. And in looking at this right now and this is the first time that I have seen it... is the subject matter is a lot different. The last time that we were here, what basically the law protects is, one, you have the Sunshine Law which provides the citizens of Kauai the opportunity to know what is coming up in the next meeting. That is one. Number 2 is... in any, I guess forum, what is not desired is a form of introducing evidence or introducing things before a body. It is almost like by ambush where nobody has the opportunity to look at it first. However, in this... what I see here is just a request... a communication. When you look at the law and basically the law says that no item shall be added if it is of reasonably major importance that will affect a significant number of persons. So two (2) weeks ago when I was here, it... the intent of the addition to the agenda was to introduce basically a resolution to... what I said back then was to change how our County government did business. In looking at the communication and this is merely a communication... it is not a bill, there is no substance in it... it is a communication, therefore, the appropriate way of handling this is this way. First of all, I have opined that this is a communication and, therefore, the Sunshine Law does not apply in this case because it does... the communication is, i COUNCIL MEETING. - 3 - ~ June 16, 2009 itself, is not of reasonably major importance, and the communication itself will not affect a significant number of persons because it is right... in this point in time, it is merely a communication. Therefore, once filed, what this Council should do is by a two-thirds vote that is the number that it will take for this communication to be able to be placed on the agenda today. So two-thirds vote to place the communication on the agenda. After that, then you have the vote on whether or not... it is like an ordinary meeting after that. It is a communication and you vote on whether or not to... it is going to be received by this body, so it is a two-step process. So I am wondering if that is clear. Mr. Kaneshiro: I have a question Mr. Chair. So Mr. Castillo, the 290 signatures is not a significant amount then? Mr. Castillo: No, the... Mr. Kaneshiro: Because it is a petition signed by 290 signatures. Mr. Castillo: No, the communication itself... right now, the fact that within the body of this, it says that there is a petition out there. I don't see a petition. There is no petition attached to this. It is merely stating that what they believe that this request regarding the agenda items to be valid or... basically, the proponents of this communication basically says that they have the backing of 290 citizens. It doesn't necessarily mean... we are not discussing the substance of these matters regarding the proposed agenda items. We are just discussing basically whether or not the communication regarding what they are saying exist is valid and the communication itself is not the substance of the matter that is of concern right now. It is... we are looking at only the communication not the substance of what the proponents want to do in July. Chair Asing: Okay, Councilmember Furfaro. Mr. Castillo: I have to split it. I mean that is the legal analysis. Chair Asing: Let me ask a question now. You know, the placement of public documents including meeting minutes on the County's website is going to affect the entire County. How can you not say it is not of major importance? I agree it is important. Mr. Castillo: No, I understand what you are saying because the substance matter of the communication will definitely affect how things are run. However, at this point in time, what is being... what will be voted upon is not the substance matter, it is basically a communication, it is basically a request saying that we want to put this on the agenda on July the 8~. So, basically, we are not getting into the substance matter of the request. Chair Asing: With that, Councilmember Furfaro? COUNCIL MEETING ~ - 4 - ~ June 16 2009 ' Mr. Furfaro: Yes, thank you. Thank you Al for that clarification. We are, in fact, talking about a communication to be received by the Council by... as I want to reiterate, the discussion here was to put on agenda for a future discussion. You made a comment about our ability to discuss and get this on and, unfortunately, I have been alleged to be in violation of the serial one on one communication rule. I have a copy of it here which basically says that more than two (2) Councilmembers cannot necessarily circulate and find a majority or a minor majority to get something on the agenda. It is of my opinion that this approach under the section of approving the agenda or under the section of communication is the proper place to receive this for future discussion. Mr. Castillo: You see... Mr. Furfaro: You know... you are familiar with this serial one on one communication? Mr. Castillo: Yes, I know, but... Mr. Furfaro: Our rules prevent us from individually having a discussion. Mr. Castillo: And I am not... that is reason why at this point in time, it is premature to get into the validity of the... the merits. Mr. Furfaro: I am confirming with you. Mr. Castillo: Yes, yes. Mr. Furfaro: The item here is to accept this communication to put something on the agenda. The merits of those items are to be discussed when they are appropriately posted on the agenda titled July 18 or July 8. Mr. Castillo: Yes, provided that the necessary legal steps are taken to place it on the agenda at that time. I am not making any opinion on whether or not it will get to that point. The only... what I want to... what I am telling the Council today is basically, by atwo-thirds vote, this Council can or has the ability to place this matter on the agenda, so it will be this body to decide whether or not it gets placed on the agenda. If you vote "no", then it doesn't get placed on this agenda and if you vote "yes", it does get placed on the agenda, and then you go to the second step as far as whether or not there is a motion to receive, and then you vote again, so that is the procedure. Mr. Furfaro: I have a follow up to that question. I also want my colleagues to note that who are introducing this and hoping for a July 8 schedule if it passes by a supermajority. Our rules also state that the final date on which it gets on the agenda is at the discretion of the Chairman based on the fact that he ~ L COUNCIL MEETING • - 5 - ~ June 16, 2009 has the management rights to determine the volume that we can take on that day or not. So if he so pushes it back to the 15~ and so forth, that is stated in our rules, but you are advising us that we first need to get the a supermajority vote to get... to accept this communication for a future agenda item. Mr. Castillo: That is what I am saying. Mr. Furfaro: Thank you. I just wanted to make sure I concur with both the Sunshine rules which were, in my opinion, misinterpreted from this e-mail two (2) weeks ago, and also the current status of the serial one on one laws, and how we do sometimes conflict with our own Council rules. That is what I was trying to clarify. Mr. Castillo: Thank you. So I am done here or you got more questions. I am sorry. Chair Asing: Any questions Councilmembers? If not, I have some questions only because, you know, there is also... when you make reference to Councilmember's access to the agenda, you are talking about in-house rules and why would we want to discuss in-house rules with the public. Mr. Castillo: And that is... Chair Asing: These are in-house rules on County operations and you want to take that and discuss it in a public forum, why would you want to do that? These are in-house rules that you make in-house on how you handle the paperwork, how you handle things that come about, so (inaudible) me that these kinds of things are being asked for discussion in the public sector because these are... like your operations, it is like whatever rules that you make in-house should have public discussion... I have some dif£ . . Mr. Castillo: That is right. Well, I guess what your concern is the subject matter of the communication, the merits or the justification that it deals with the in-house rules. However, today, this morning, this is really not the subject matter, and that is why the Sunshine Law would not apply in this case. If it were, the purpose of this was to cover all of these things today, then I would be making the same opinion that I did two (2) weeks ago, so that is the... the difference here is, we are only right now dealing with a communication for a future intent. Chair Asing: Any other questions Councilmembers? Mr. Furfaro: Thank you Mr. Chair. Chair Asing: Councilmember Furfaro? COUNCIL MEETING ~ - 6 - ~ June 16, 2009 Mr. Furfaro: Yes, I would just like to make note that our rules are passed in a public form in a form of resolution during the inaugural and I want to just say that people need to become familiar with the rules, and so this merits this communication discussion because we are often hearing this about COK Kauai Council and so forth, but our rules clearly state that each piece of legislation shall be managed by the Chair of that Committee and the appropriate Chairman shall serve as the manager of that legislation. So in determining who are the Chairmans of the various Committees, those Chairman are first... whether it is Public Works, Parks, Planning, they are mandated in our rules to be the manager of that information, and that sometimes is unknown, so that is why I think this communication about discussing our rules is important. Chair Asing: Thank you. Any other questions Councilmembers? 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: Councilmember Bynum? Mr. Bynum: I just want to concur with what Councilmember Furfaro just said that I think it is appropriate and important for us to have a public discussion about how we conduct ourselves around the table. The rules are something that is established by resolution. Resolutions and rules can be changed by a subsequent resolution. I am not attempting to discuss the matter that... I am just requesting future Council time to discuss the matter when it is properly sunshined because there was Sunshine concerns raised, so... Chair Asing: Any further discussion? If not, I would like to call for a short recess. There being no objections, the Chair called for a recess at 9:23 a.m. The meeting was called back to order at 10:20 a.m., and proceeded as follows: Chair Asing: We have a motion on the floor to amend the agenda. Is there any further discussion? Mr. Kaneshiro: Mr. Chair if I could. I would propose that instead of locking in the date as of July 8, perhaps we could... because we are not sure what we got on the July 8 agenda is give the option of July 8 or July 22 which is the next Council meeting. So this way, it will be the discretion of the Chair as we look at the agenda to be able to give him some flexibility in being able to adjust it to the 8th or the 22na. Mr. Bynum: How do you amend a communication? I have no objection. COUNCIL MEETING - 7 - June 16, 2009 Mr. Kaneshiro: So basically, I would say that we just put in that July 8 or July 22 for the record. Can we do that or do we have to... Chair Asing: Motion to amend. Mr. Kaneshiro: So basically I would like to make that motion. Mr. Kaneshiro moved to amend the motion to reflect the communication dated June 16, 2009 from Councilmembers Bynum and Kawahara that their item be placed on either the July 8, 2009 or July 22, 2009, seconded Mr. Furfaro, and unanimously carried. Chair Asing: We are back to the main motion as amended. The motion to amend the agenda, as amended to reflect both July 8 and July 22 was then put, and unanimously carried. Mr. Bynum: Thank you. Ms. Kawahara: Thank you. The motion to approve the agenda as amended, was then put, and unanimously carried. Chair Asing: Next item please? PETER NAKAMURA, COUNTY CLERK. The next matter is approval of the minutes of the following meetings of the Council. MINUTES of the following meetings of the Council: Special Council Meeting of May 27, 2009 Council Meeting of June 3, 2009 Mr. Furfaro moved for approval of the minutes as circulated, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matters are communications for receipt. For receipt on page 1 is communication C 2009-209 and communication C 2009-210, and on page 2 communication C 2009-211 and C 2009-212. COUNCIL MEETING - 8 - ~ June 16 2009 COMMUNICATIONS: C 2009-209 Communication (04/21/2009) from the Planning Director, transmitting the Planning Commission's recommendation to clarify the procedures for Shoreline Setback Determinations and Activity Determinations and determining applicability; to amend the list of activities permitted within the shoreline setback area and to allow activities permitted under Section 8-27.7 within the shoreline setback area to proceed with permitting without a setback determination: Mr. Chang moved to receive C 2009-209 for the record, seconded by Mr. Kaneshiro. C 2009-210 Communication (05/12/2009) from the Chief of the Building Division, Department of Public Works, transmitting for Council information, the Building Permit Information Reports for April 2009 that includes the following: 1) Building Permit Processing Report 2) Building Permit Estimated Value of Plans Summary 3) Building Permits Tracking Report 4) Building Permits Status Mr. Chang moved to receive C 2009-210 for the record, seconded by Mr. Kaneshiro. C 2009-211 Communication (05/19/2009) 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. 2534 (Reallocation of Present Class of Water Safety Office I to Lifeguard) • Fire Department, Position No. 1654 (Reallocation of Present Class of Water Safety .Officer II to Lifeguard) • Fire Department, Position No. 1036 (Reallocation of Present Class of Water Safety Officer II to Lifeguard) Mr. Chang moved to receive C 2009-211 for the record, seconded by Mr. Kaneshiro. Chair Asing: Okay, the motion should be to receive communication C 2009-211 and not C 2009-212. With that; any discussion? Councilmember Bynum? Mr. Bynum: Yes, Mr. Chair, regarding communication C 2009-209, we received this communication... this is regarding a bill that is here for first reading today that I have a real interest in. It amends our shoreline setback in a way that, you know, to accommodate some minor things on the shoreline. It is a concern and timely because we have a requirement to meet certain ADA requirements, and the outcome of this bill may impact us meeting those timelines. So I have been trying to find this information about this bill. Last week, I asked the... the Planning Director was here... whether he had sent... you know, why we hadn't seen the communication and the work from the Planning Department. And he said, I will look into it, but I am certain we sent it over and so I want to note that this communication was received at Council Services and time- stamped in on May 12. It includes the proposed amendments of the draft ordinance, the staff report covering amended request, and transcripts and testimonies from the hearings held at the Planning Department. However, I didn't - - • n 16 2 0 COUNCIL MEETING 9 Ju e 0 9 receive this communication until last week, July 12 (meant June 12)... a full month that I have been seeking this information. Then I received the communication and the bill, but the staff report and transcripts were not made available to me until yesterday. And this, you know, I am very concerned and I have expressed those concerns for a long time that communications be distributed to me in a timely matter, and here is an example where for a month I could have been studying this very important bill and it hasn't been made available. I'd like to know from the County Clerk why it takes a month when I have made repeated requests to have communications delivered in a timely manner... why these materials were not made available to me as I have requested repeatedly. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, thank you. You know, here is something and I am really glad that we had that earlier communication about reviewing the particulars on rules and here is something that I need to take some responsibility for and I want to certainly make sure that those that are in the audience understand... in our rules, Section 10, item (b), the manager of the certain pieces of legislation are required to have a manager and the introducer and/or appropriate Committee Chair shall serve as the manager of the legislation and may delegate this function to other Councilmembers. The manager or Chair shall be responsible for managing of such legislation including the securing of all the pertinent information regarding the matter, and that is why we have a Chairman in the Committee. These things come through C of K and I have questions equally before I distribute it to members of my Committee. I have practiced this for many years under rule 10, item (b), in managing the particular items, and I want to make sure that I take full responsibility for my interpretation of that, and it should not be directed at the Clerk and/or the Chair. This, I believe, I am working within the boundaries of the rules and hopefully after earlier discussion today, we will have an opportunity to put an ad hoc Committee together to review that. I, myself, do depend often on other Chairman when they are ready to introduce something and so forth to share those communications. I feel that is an important function of the Chairman. You are the manager of the communication. I take full responsibility for that Mr. Bynum as well as I am going to take full responsibility to communicate my concerns on the shoreline bill today including the correspondence that I have from Earthjustice. The Earthjustice is basically implying to us that there is a conflict in the bill that has been requested by the Planning Department as they see an interpretation of the SMA versus they are seeing the CZMA and a mandate from the State government which seems to be in conflict. And so I will be sending that communication to the County Attorney's Office as well as the Planning Department, so that when I am prepared to actually have this item worked in Committee, I can assure members that you will have both points of view. You know, that amendment certainly directs or calls on the issue that may or may not require certain items in the shoreline setback to be determined by the Planning Director and there is where COUNCIL MEETING. - 10 - ~ June 16 2009 the conflict lies, and I am trying to get to the bottom of it before I distribute some information. So just independently, I want to make sure that we understand that these are my interpretations, and I take full responsibility if someone feels that they are not getting information, but at the same time, I would give the same extended parameters to other Chairman who are trying to make sure that nobody made a bad decision because you had too much information. So Mr. Clerk, could I have this communication sent down to Planning as well as the County Attorney for the conflict that exist in the correspondence from Earthjustice. Thank you Mr. Chairman. Chair Asing: Councilmember Kaneshiro? Mr. Kaneshiro: I just wanted to add and thank Mr. Furfaro who has been the Chairman of the Planning Committee for expressing his views as the timely matter that he wanted this to be put on the agenda. I appreciate that and I also want the public to know that none of us here were able to get this information before anyone else. We all got it equally at the same time and Mr. Furfaro made a decision that this was time, that he has done his research on and feel appropriate for this to be on the agenda. So it is not only Mr. Bynum that didn't get any of this information, neither did I or probably the rest of the Councilmembers. Chair Asing: Councilmember Bynum? Mr. Bynum: ~ I just want to say that I totally agree with what Mr. Kaneshiro just said that none of us were provided these materials prior to part of them when the agenda was released, and the rest of them were available yesterday when I asked for them, and they were passed out to all of us in forms today. But the issue is that this is a communication that was addressed to the Honorable Chairperson Bill "Kaipo" Asing and members of the Kauai County Council. It was dated by the Planning Department on March... on April 21, time- stamped in at Council Services on May 12, and our Council rules say... regarding the County Clerk, the County Clerk is to forward at once to the proper parties all communications and other matters either directly or through a Committee as the case may be... at once being the key language here and I have in writing repeatedly for over two and a half (2 1/a) years requested that communication that is addressed to all members of the Council be provided to all members of the Council in a timely manner. In this instance, it wasn't provided until it was agendaed which means I lost a full month of time. These are public records that I could go get from the Planning Department, but they... our routine is that it was sent here. If we looked at the communication that is delivered to all members of the County Council, we would find dozens every week I think of communications that are never distributed to Councilmembers... to any of us even though they are addressed. So I would like the Clerk to fulfill his responsibility to deliver these communications that are addressed to me at once as the Council rules say. Chair Asing: Councilmember Furfaro? . i • COUNCIL MEETING - 11 - June 16, 2009 Mr. Furfaro: Yes, again, I am delighted that we are reviewing this in a future session because there is this conflict that exist, and I want to make certain again... delivered to the proper individual and that in me... in my terms, also references the Committee Chair and so forth... I have released the information. This is only for scheduling of the first reading and, therefore, I think there is some important amendments that the Planning Department needs to revisit along with the County Attorney before we actually get it in Committee. So I take full responsibility and I also take an educated guess at my own interpretation of what is required of me as the Committee member and Chair and Vice Chair over the last six (6) years. So thank you very much and all that information Mr. Clerk is now distributed and we will set a calendar date for the Committee and public hearing. Thank you and may I transmit this to somebody which will communicate my concern down to the Planning Department. Thank you. Chair Asing: Any further discussion? If not, all those in favor say aye. The motion to receive C 2009-209, C 2009-210, and C 2009-211 for the record was then put, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: We are on page 2 of the Council's agenda on communication C 2009-212. C 2009-212 Communication (05/20/2009) from the Director of Finance, transmitting for Council information, a copy of the Kauai Humane Society's Third Quarter Report for Fiscal Year 2009, which includes Cash Flow Analysis, Percentage Change Report, and Field Services Statistics: Chair Asing: What I would like to do is suspend the rules. There being no objections, the rules were suspended. Chair Asing: Good morning Dr. Rhoades. DR. BECKY RHOADES, KAUAI HUMANE SOCIETY Good morning. Thank you. I have made a New Year's resolution to be here for every quarterly report, so that I might answer any questions for anybody as you reviewed the report, and just be here to help you learn more about the work we do. This third quarter report just shows how busy we were... encouraging numbers with more animals going home to their families that are lost as well as finding new families, our work out in the community with the zero tolerance for dogs off leash has shown some increase in leash law violations issued, and note is the big case... we are partnering with the COUNCIL MEETING • - 12 - • June 16 2009 Kauai Police Department on the cockfighting and we still are holding some of the roosters at the facility to this day. 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: Ms. Kawahara: Thank you for being here. Chair Asing: Is there anyone else in the audience who wants to speak? Councilmember Bynum? Mr. Bynum: First of all, I promise this is the last time I will bring this up today, but this communication was generated by the Humane Society on May 1, received by the Director of Finance on May 5 (time-stamped), time- stamped in a May 20 memo to the County Council... receive, time-stamped in on May 27 and I received this last week, so 15 days... 17 days after it had been received at Council Services. I don't believe this goes through any Committee. This is the responsibility of the Clerk to deliver this at once. And so we can do this on almost every communication that comes here, but, you know, I expect a communication that is addressed to me to be delivered in a timely manner and 17 days is not timely. Chair Asing: Any other questions? Yes, Councilmember Furfaro? Mr. Furfaro: I can only defend my rationale as the manager of the planning piece, but I also want to, again, concur that we will be reviewing this, and I want to make sure that Council Services is a body of employees, and this is not a reflection on your performance. It is something that this body will visit. I am sorry if you are being caught in any cross fire here. I do appreciate all the support from Council Services. Chair Asing: Councilmember Kawakami? Mr. Kawakami: You know, I just... I understand where you are coming from. My personal view point on communications as far as receiving in a timely manner, I am not requesting any change because, quite frankly, the way the communications have been handed out to me are very well managed because as I am looking at it, the less of (inaudible)... this would be overwhelmed with communication at any one given point of time. So as they come in, I find it appropriate for my own filing purposes and my own organization... what we are going through the hundreds of pieces of communications, that whatever way Council Services has been allocating it and the Committee Chairs also have been sufficient for me to make educated and factual decisions... decision making. . ~ • COUNCIL MEETING - 13 - June 16, 2009 Chair Asing: Thank you. Councilmember Bynum? Mr. Bynum: I won't belabor this any further, but I just want to concur with Councilmember Furfaro that, you know, my comments were directed at the County Clerk... the County Clerk is responsible for governing the staff. We have an outstanding staff that follows the directions of their boss. Mr. Furfaro: Thank you Mr. Bynum. Chair Asing: Any other discussion? If not, I'd like to also make a comment. You know, in all the years that I have been on the Council and we are talking about 26 years, this is the first time we had a Councilmember who is not happy at the operations. First time in all the 26 years. First Councilman, first time, so I think there is something to be said there. Every other Councilmember that I know has not had this kind of complaint except for Councilmember Bynum. He seems to have all kinds of complaints about operations. With that, thank you. I am sorry, we have the County Attorney. Mr. Castillo: I am sorry. The reason why I am interjecting here, Council Chair is... as your County Attorney and protecting the rights of every County personnel here, I think it is improper for someone to, at this point in time, to be making any subtle allegation against our County Clerk because it is an employment matter. And if there is any sort of allegation... I have heard it twice this morning and it is basically unfair to the County Clerk who cannot voice his reply as far as what is being alleged here. So I would warn the Council that, you know, I would... any further discussion regarding the performance of the County Clerk has to go into executive session. So I will... I am going to... I just want to let everybody know once we start talking about the County Clerk again, I am going to say, excuse me, we have to go into executive session because we cannot talk about an employment right here at this point in time. Thank you. Mr. Furfaro: Thank you for that clarification. Mr. Kaneshiro: Thank you for that Al. Chair Asing: Thank you. What I would like to do is call the meeting back to order. The meeting was called back to order, and proceeded as follows: Mr. Kaneshiro: The motion is to receive. Mr. Kaneshiro moved to receive C 2009-212 for the record, seconded by Mr. Furfaro, and unanimously carried. Chair Asing: Next item please? COUNCIL MEETING - 14 - ~ June 16, 2009 Mr. Nakamura: The next matter for approval on page 2 of the Council's agenda is communication C 2009-213. C 2009-213 Communication (05/15/2009) from the Wallace M. Kudo, Civil Engineer VII, requesting Council approval to replace one (1) Plotter/Scanner in the amount of approximately $23,000 which funds are available in the Engineering Division's equipment account: Mr. Furfaro moved to approve C 2009-213, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for Council approval is communication C 2009-214. C 2009-214 Communication (05/20/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 82, Villas at Puali, located at 1934 Hokulei Place, Lihu`e, Kauai, Hawaii, 96766, and provide the owner with aone-year waiver of the resale restriction: Mr. Furfaro moved to approve C 2009-214, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The matter for approval is communication C 2009-215. C 2009-215 Communication (05/20/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 32, Villas at Puali, located at 1945 Hokulani Place, Lihu`e, Kauai, Hawaii, 96766, and permit market sale of the unit for a period of one-year: Mr. Chang moved to approve C 2009-215, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: At the bottom of page 2, the next matter for Council approval is communication C 2009-216. C 2009-216 Communication (05/27/2009) from the Prosecuting Attorney, requesting Council approval to: 1) Apply for, receive, and expend Federal funds for the Domestic Violence Prosecution Unit in the amount of $46,403; and 2) Indemnify the State of Hawaii, Department of the Attorney General. The funding received will be expended on salaries/wages and supplies for the Domestic Violence Prosecution Unit to continue the program for the term commencing December 1, 2009 to November 30, 2010: Mr. Kawakami moved to approve C 2009-216, seconded by Mr. Chang, and unanimously carried. COUNCIL MEETING - 15 - June 16, 2009 Mr. Nakamura: The next matter on the top of page 3 for approval is communication C 2009-217. C 2009-217 Communication (06/03/2009) from the Executive on Aging, Agency on Elderly Affairs, requesting Council approval to receive, and expend State funds, in the amount of $29,901 which covers funding from July 1, 2009 through June 30, 2010 for State Fiscal Year 2009 to 2010 for KUPUNA CARE services to adults, age 60 and older, and to indemnify the State Executive Office on Aging with their intent to award the Agency on Elderly Affairs State funds: Mr. Furfaro moved to approve C 2009-217, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: The next matter for Council approval is communication C 2009-218. C 2009-218 Communication (06/03/2009) from the Fire Chief, requesting Council approval to apply for, receive, and expend the 2009 Rural Fire Assistance Grant to purchase 162 durable wild land firefighting headlamps in the amount of $9,004.60 which is 90% of the grant and the remaining 10% or $1,000.52 will be from the Kauai Fire Department's budget: Mr. Chang moved to approve C 2009-218, seconded by Mr. Kawakami, and unanimously carried. Mr. Nakamura: The next matter for Council approval is communication C 2009-219. C 2009-219 Communication (06/04/2009) from the Executive on Transportation, requesting Council approval to apply for, receive, indemnify and expend a Federal Transit Administration (FTA) Section 5311 and 5311(b)(2) Rural Transit Assistance Program (RTAP) grant for operational, administrative and training expenses for the County Transportation Agency in the amounts of $555,525 and $10,711, respectively: Mr. Kaneshiro moved to approve C 2009-219, seconded by Mr. Kawakami, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: On page 3, communication C 2009-202. C 2009-202 Communication (05/08/2009) from the Housing Director, requesting Council approval to decline the repurchase of Unit No. 602, Hookena at Puhi, located at 2080 Manawalea Street, Lihu`e, Kauai, Hawaii, 96766, and provide the owner with aone-year waiver of the resale restriction: Mr. Nakamura: I believe there is a request to defer this matter once again Mr. Chair from the Housing Agency. COUNCIL MEETING - 16 - ~ June 16, 2009 Chair Asing: I believe it is to July 8 Council Meeting. Mr. Kawakami moved to defer C 2009-202, seconded by Mr. Chang, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: Mr. Chair, at this time if we could go to page 4 of the Council's agenda on bills for first reading Proposed Draft Bill No. 2319. BILLS FOR FIRST READING: Proposed Draft Bill No. 2319 - A BILL FOR AN ORDINANCE TO AMEND CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COMPREHENSIVE ZONING ORDINANCE (Amending Article 27, Chapter 8, Kauai County Code 1987, relating to Shoreline Setbacks and Coastal Protection): Mr. Furfaro: I would like to move to approve even though I shared my concerns earlier and circulated the concerns from Earthjustice, but this is first reading and I would like to schedule a public hearing on July 22, and refer to the Planning Committee. Mr. Furfaro moved for passage of Proposed Draft Bill No. 2319 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for July 22, 2009, and that it thereafter be referred to the Planning Committee, seconded by Mr. Kaneshiro. Chair Asing: What I would like to do... there is a motion and a second. Before I go into discussion, what I would like to do is open it up to the public first. So with that, I would like to suspend the rules. There being no objections, the rules were suspended. Chair Asing Is there anyone in the public who would like to testify on this bill? CAREN DIAMOND: Aloha Councilmembers. Mr. Furfaro: Aloha. Ms. Diamond: My name is Caren Diamond and I am a coastal advocate for the northshore. It is totally disappointing to see the County promulgate a bill like this. It actually goes against State law, it goes against the whole coastal zone management way of law. Basically, if you read the way the agenda item was sent over and the way it was written as it was sent over, pretty much you have no idea what it is talking about. So I just want to just put it down • COUNCIL MEETING - 17 - June 16, 2009 into regular language. Basically, what this is asking for is for all the things that have minor permits to be allowed to proceed without doing a certified shoreline. And in talking to the Planning Director, what he said was that all those things were permitted. They are allowed under the minor permit section, so why should we make people do a certified shoreline. Basically, even though those things are permitted and what we are talking about is walls, fences, planting the beach... all the things that cause problems on the beach and if Planning wants to permit those, they have to get a certified shoreline first to determine whether they are below the shoreline, above the shoreline, on public trust area in County jurisdiction, State jurisdiction, where the public is allowed to be. Basically what the County wants to do is say, skip all of that, never mind, and I want to quote and read from the second supplemental planning report that was submitted to the Planning Commission. It says, while the certified shoreline is the formal process for determining legal jurisdictional boundaries, it is unreasonable to assume that registered professionals, surveyors and engineers are unable to judge where the shoreline is without certification, and are unable to exercise judgment regarding whether certification is necessary. Well, that goes against State law. The surveyors, none of those people are allowed to do that. That is a State function... 205A, H.R.S. governs how things on the coastal zone are managed and where development happens. These structures that are being... that under minor permits, those are still structures that is still development. No development can happen on the .coastal zone without it being in the, proper place, so it baffles me that Planning would even ask for this. Basically, I ask for you to... as Mr. Furfaro has asked, send it to your legal team, have them review it because I do believe that maybe that would put an end to this discussion. I also want to say that the coastal erosion study that this County Council funded for three (3) years with County public money is done. Mr. Furfaro: It is not done. We just had an update. The photography work is done and I will be glad to give you a schedule of its estimated completion this Fall, but I would like to give you the whole list of what we covered last week. Ms. Diamond: It is almost done and this is an interim bill and the proper place and time to really go over any kind of changes to this bill would be when the coastal study gets implemented into this bill. Since the `70's the shoreline setback bill was never updated, never. Why does Planning want to all of a sudden update it right now and to answer one of the things that I know Mr. Bynum is favoring is this Lydgate improvements that need to happen. During the time that Planning has tried to change these rules, they could have gotten a certified shoreline. It is not that big of a deal and instead they changed the law and changed the rules... it is not beneficial to the public trust, it is not beneficial to the beach... in fact, it makes (inaudible) of our beach. That is what it does. It gets rid of the public trust, it gets rid of the County's responsibility and waives the State's responsibility, and it waives the State's responsibility to.. and... it is really poor and so I ask all of you to reject these whatever you want to call them... things that detract from a really good setback law, and protect the public trust. Our beaches COUNCIL MEETING. - 18 - • June 16 2009 are the most valuable resource that we have whether it is for the visitors, whether it is for the people who live here or cultural identity, everything is right on the coast. And when you allow development to happen there and make it easy for it to happen, that doesn't serve the public trust. I would ask you to look at Isaac's letter, look at Earthjustice letter... I believe they lay out the legal reasons why this bill shouldn't go forward. Chair Asing: Thank you. Any other questions? Councilmember Furfaro? Mr. Furfaro: Yes, first of all, I think you know that in my Committee, I am following up with the letter from Earthjustice as well as the concerns that Isaac raised. Ms. Diamond: Thank you. Mr. Furfaro: As they conflict with Hawaii Revised Statute 205A- 43. They are going to look into that. I suspect that we will have some response by the time we look at a scheduled workshop. Secondly, you do understand when the request comes from Planning, it is put in our Committee by request, so this is a bill that did come out from the Planning Department, not from the Council per say. Ms. Diamond: I understand that is why we hope the Council will actively review that bill... Mr. Furfaro: Yes, but I wanted to make sure for the record... you had mentioned other particular Councilmembers and, quite frankly, I wanted to make sure for the record that we knew that material was requested by us by Planning. And then also, thirdly, I have asked the County Clerk to give you a copy of the projects that I put in summary in my Committee as my starting point as Chairman, and hopefully they will have that for you today. Ms. Diamond: Thank you. Mr. Furfaro: Okay, thank you Mr. Chair. Chair Asing: Any other questions for Caren? I have one. Caren, can you do me a favor by trying to put the specific different items of concern that you have, so I be looking at those. Ms. Diamond: You mean in writing? Chair Asing: Yes. Ms. Diamond: Yes, that is fine. • • COUNCIL MEETING - 19 - June 16, 2009 Chair Asing: Will you please? Ms. Diamond: I will do that. Chair Asing: I would appreciate that. I am sure Councilmember Furfaro would appreciate... Ms. Diamond: And you can look at my testimony to the Planning Commission. I didn't write fresh testimony for today. I will put my thoughts down, but my Planning Commission testimony reflects my thoughts. Chair Asing: Okay, thank you. Councilmember Furfaro? Mr. Furfaro: Just one more thing along that line. You know, we have various Committee Chairpersons and I just want to, again, reiterate... when we come up for first reading in my Committee and as Chair, I will raise the concerns. I also want you to know that when we get into the actual public hearing and then go into the first Committee workshop, I will have someone from the Planning Department available to make their presentation as well as their rationale, and that is just going to be my modus operandi. Ms. Diamond: Thank you. That will be helpful. Mr. Furfaro: Okay, thank you Mr. Chair. Chair Asing: Thank you. Thank you very much. I'd like to call the meeting... unless there is anybody else who wants to speak. Nobody, the meeting is now called back to order. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion on the floor and we have a second. Councilmember Bynum? Mr. Bynum: Thank you Mr. Chair. I just wanted to say that my... as I said earlier, I haven't had these documents long, so I haven't fully studied them. My understanding is, the intent of this legislation is not at all to undermine the legislation that we passed here last year, and I think I could speak for all of us that we are proud of it, and I hope... well, I won't speak for all of us. I think it is an important bill that helped protect the shoreline and my understanding of this legislation... that its intent is that when we have minor improvements in the shoreline area and an example that Ms. Diamond brings up is walkway that we need to do at Lydgate Park to make it ADA compliant. It is relatively minor... there is no... but if we have to go through certified shoreline and a big legal process, a project that may cost only $20,000, the planning could be $100,000, so I think the intent is to do that. I certainly won't vote for anything that undermines the s • COUNCIL MEETING - 20 - June 16, 2009 integrity of the shoreline bill that we worked so hard on and... but this is a bill for first reading which means we are bringing it into the system here and the Chairman of the Planning Committee, Mr. Furfaro, I know will do the due diligence to address any concerns of Ms. Diamond and others would have. And so I wanted to be clear that a vote on this bill today at first reading just puts the process in doing the due diligence and the deliberations to make sure that we don't pass anything that inadvertently undermines the intent of the shoreline setback law. Thank you Mr. Chair. Chair Asing: Thank you. Councilmember Furfaro? Mr. Furfaro: Yes, and keeping the spirit of working with other Committee members, you know, we are restricted to no more than two (2) of us communicating information and I extend an invitation to Councilman Bynum when I meet with Imai from the Planning Department to have a better understanding of this bill, so I extend that invitation to you today at 3 o'clock. Thank you. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. I just wanted to also voice my concerns. They are similar to Committee Chair Furfaro and I appreciate the clarity that you are going to bring to the issue when we come back to it at Committee, so I appreciate that, but I do have some concerns and they are similar to yours. Thank you. Chair Asing: Thank you. Any further discussion? If not, roll call. The motion to approve Proposed Draft Bill No. 2319 was then put, 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: At this time, we are back on page 3 of the Council's agenda. CLAIMS: C 2009-220 Communication (05/26/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Shiannte Makanani, for damages to her vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-220 to the County Attorney for disposition • COUNCIL MEETING - 21 - June 16, 2009 and/or report back to the Council, seconded by Ms. Kawahara, and unanimously carried. C 2009-221 Communication (05/27/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Janice S. Bond, for damages to her vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-221 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara, and unanimously carried. Chair Asing: Next item please? Mr. Nakamura: My apologies Council Chair. On the top of page 4 which are two (2) further claims. C 2009-222 Communication (05/29/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Richard E. Hurst, Sr., for damages to his vehicle, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-222 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara. C 2009-223 Communication (06/03/2009) from the County Clerk, transmitting a claim filed against the County of Kauai by Eric "Rick" Fogel, for loss of personal property, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Furfaro moved to refer C 2009-223 to the County Attorney for disposition and/or report back to the Council, seconded by Ms. Kawahara. Mr. Furfaro: I do want to also make note that claims under $5,000, the County leaves that jurisdiction to the County Attorney and will not be required to come back to us. Thank you Mr. Clerk. Chair Asing: Thank you. Next item please? Mr. Nakamura: The next matters for approval are Committee Reports. COMMITTEE REPORTS: BUDGET & FINANCE CONIlVIITTEE REPORT: A report (No. CR-B&F 2009-19) submitted by the Budget & Finance Committee, recommending that the following be approved as amended on second and final reading: "Bill No. 2305 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 • • COUNCIL MEETING - 22 - June 16, 2009 JULY 1, 2008 THROUGH JUNE 30, 2009, BY REVISING THE SURPLUS AND APPROPRIATIONS ESTIMATED IN THE PUBLIC ACCESS FUND (Appropriation of $1.85 million from the Public Access Fund to Black Pot Beach Park Expansion-Land Acquisition)," Mr. Kaneshiro moved for approval of the report, seconded by Mr. Chang, and unanimously carried. (See later for Bill No. 2305) Chair Asing: Next item please? Mr. Nakamura: From your Committee on Planning, Committee Report CR-PL 2009-04. PLANNING CONIlVIITTEE REPORT: A report (No. CR-PL 2009-04) submitted by the Planning Committee, recommending that the following be received for the record: "PL 2009-1 Communication (6/04/2009) from Jay Furfaro, Planning Committee Chair, requesting that Ian Costa, the Planning Director, be present to provide an update on the following projects: 1. County Zoning Ordinance (CZO) Update -Phase I 2. Zoning Digitization/Geographic Information Systems (GIS) Project 3. Coastal Erosion Study 4. Lihu`e Town Core Urban Design Plan 5. Lihu`e Development Plan Update 6. Important Agricultural Land (IAL) Study," Mr. Bynum moved for approval of the report, seconded by Mr. Kaneshiro, and unanimously carried. Chair Asing: Next item please? Mr. Kaneshiro: Bill for second reading. Chair Asing: We will take a caption break. There being no objections, the Chair called for a recess at 11,:00 a.m. The meeting was called back to order at 11:20 a.m., and proceeded as follows: Chair Asing: Mr. Clerk, next item please? Mr. Nakamura: The next matter on page 5 of the Council's agenda is a bill for second reading. BILLS FOR SECOND READING: • • COUNCIL MEETING - 23 - June 16, 2009 Bill No. 2305 - 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 PUBLIC ACCESS FUND (Appropriation of $1.85 million from the Public Access Fund to Black Pot Beach Park Expansion-Land Acquisition): Mr. Bynum moved to approve Bill No. 2305 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Kawakami. Chair Asing: Any discussion? Councilmember Furfaro? Mr. Furfaro: Yes, I was hoping that, for the record, we could make note that this is an earmark until such time that the Public Land Trust comes back to us, giving us an update on August 26 I believe. Is that correct Chair of Budget & Finance? Mr. Kaneshiro: Yea. Mr. Furfaro: So I just wanted to read that into the record. Chair Asing: Okay, any further discussion? If not, what I would like to do is suspend the rules. Jennifer, I believe you have something to say. JENNIFER LUCK, KAUAI PUBLIC LAND TRUST: Aloha Councilmembers, for the record, Jennifer Luck from Kauai Public Land Trust. I just wanted to come up and mostly say thank you for your support of this project and your backing of the project. As you know, it came before the Budget & Finance Committee last week and gave you an update on the status of funding. Some of that was unfortunate news, but at that meeting, there was mention made of a possible letter or resolution to Governor Lingle asking for her to reconsider her decision not to release those Legacy Land Funds. And I just wanted to come up and encourage you to consider doing that as well. I think that would be a tremendous show of support from the Council in addition to, of course, earmarking these funds. So thank you again so much for your support of this project and I look forward to reporting back in two (2) months with some good news. Chair Asing: Thank you. Any questions? If not, thank you very much. I'd like to call the meeting back to order now. The meeting was called back to order, and proceeded as follows: Chair Asing: We have a motion and a second. Any further discussion? Councilmember Furfaro? • • - COUNCIL MEETING - 24 - June 16, 2009 Mr. Furfaro: Yes, Mr. Chair, I don't want to be out of line here, but I am assuming that you will initiate the correspondence to the Governor as Chairman of the Council of the whole? Chair Asing: Yes. Mr. Furfaro: Okay, very good. Thank you. Chair Asing: And that can only be done... well, should only be done after its passage. Mr. Furfaro: Understood. Chair Asing: It was on the Committee level, so it was not sent until.. . Mr. Furfaro: I just thought of the urgency... it is better if it is a letter from you rather than wait through to July before we do a resolution. Chair Asing: Yea, well, it will be a letter signed by me, but from this Council in its entirety. Mr. Furfaro: Very good. Thank you for that clarification. Ms. Luck: Thank you. Chair Asing: With that, any further discussion? If not, roll call please. The motion to approve Bill No. 2305 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: With that, can we have the County Attorney up please? There being no objections, the rules were suspended. Mr. Castillo: Council Chair, I guess we are going for the next matter for your consideration. Chair Asing: Yes. • • COUNCIL MEETING - 25 - June 16, 2009 Mr. Castillo: It would be ES-389. ES-389 Pursuant to Haw. Rev. Stat. sections 92-4 and 92-5(a)(4), and Kauai County Charter section 3.07(E), the purpose of this executive session is to consult with the Council's attorney regarding the charter amendments adopted in the 2008 General Election and other related matters. This consultation involves the 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: Any questions? 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: And have a motion to move into executive session. Mr. Kaneshiro moved to go into executive session on item ES-389, seconded by Mr. Kawakami. Chair Asing: Councilmember Bynum? Mr. Bynum: We... this was on the agenda last time and I had a long list of questions that we didn't get completed. Also, we have requested certain documents from the County Attorney's Office which we haven't received the complete set at this time. So I just wanted to ask my colleagues that I felt that at least for me to completely ask the questions that I am interested in, I wanted to review those documents, and I would be willing to entertain a motion or get feedback from you about whether this item might be deferred to the next meeting. Chair Asing: I don't want to defer it. I want to just get it done. With that, any further discussion? Ms. Kawahara: What documents? Mr. Kaneshiro: I think before we can even make a motion to defer, we have to get into executive session first and have some discussion which is, I believe the motion on the floor. Chair Asing: Okay, any further discussion? Councilmember Bynum? Mr. Bynum: (Inaudible) would like to go into executive session. I don't object to that. Will we come back into public session subsequently to that? Chair Asing: I don't believe so. We could do it, but... • COUNCIL MEETING - 26 - June 16, 2009 Mr. Bynum: Okay, then I would like to make a statement. Chair Asing: We are going to move into executive session and have the discussion first. Mr. Bynum: Are we going to come back into open session? Chair Asing: Yes, we can do that. You know, I don't believe that we need to do that. There is no items here on the agenda that warrants us coming back into open session. Go ahead. Mr. Bynum: This agenda item is regarding Charter amendments that were in the last election. One Charter amendment in particular is very significant for the County of Kauai and the purpose of (inaudible)... of the special counsel was to advise the Council regarding the implementation and other aspects of that Charter amendment. Initially in July of last year prior to the election, we authorized $50,000 for special counsel and we didn't hear anything back from the special counsel prior to the election. We didn't... we heard later after the election in January and at that January meeting, we learned that an additional $70,000 of funds had been expended above the $50,000 that was authorized. I expressed real concerns about the process about which that occurs, looked at the contract which is a public document that, to me, was very clear that said to the special counsel that no work could be completed without an amended contract. And so this brings up process issues. It also was a great concern to me that at that time, we had spent $130,000 and I still hadn't heard the kind of guidance that I had hoped would be coming from this. The... I believe the Council's instructions were clear at that point. We authorized that day an additional $100,000 for a total of 150, and I think the Council was clear that there would be no further authorizations or no work should go beyond that without further authorization from the Council. Mr. Castillo: Excuse me. You know, the matter in what you are touching upon does involve the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County. So right now, I think it is... this matter should be within executive session and not in open. So, anyway... Chair Asing: Councilmember... Mr. Castillo: Because you are talking about the work that was purportedly done... you are talking about the work product that was anticipated... that you anticipated to receive, you are talking about the contract and the parameters of the contract. All of these are... should be dealt with in executive session. Chair Asing: Councilmember Bynum? . • COUNCIL MEETING - 27 - June 16, 2009 Mr. Bynum: Mr. Castillo, if I just keep my comments related to the funding that we've approved in open session? Mr. Castillo: Basically, you know, what you are talking about is you are still talking about the funding and the level of the work product. It would still... and that would still involve the liabilities or the privileges and duties of this Council and this County. If you basically said in general, I had expectations which were not met. If you said, in general, I would like... I have information that... I requested information that I did not receive, then that is in general, and it is open. However, what has happened in this past... what you just said does involve specific amounts, does involve contractual amounts, does involve contractual issues, and the work product received. All of this... all of these should be executive. Mr. Bynum: I will accept your guidance on this. I thought that all of my comments were general in nature and that was~my intent. Mr. Castillo: That is why you have an attorney representing you. Mr. Bynum: Thank you Sir. Chair Asing: Councilmember Kawahara? Ms. Kawahara: Thank you Chair Asing. In general, I have serious reservations about... can I say this contract? Mr. Castillo: Well, again, your... you cannot say in general and say, I complain about this. That... it starts from in general and then it goes into a specific, and that would not be appropriate because it does affect the liabilities of this Council and the County. Ms. Kawahara: So I want to assure the public that my main goal is to enact the amendments and especially the main amendment that I believe a lot of people are most interested in, and that is the amendment about aligning our growth with the General Plan which is what we amended in the past election. In general, what was your words? Mr. Castillo: You know, I know what you have characterized... you have characterized for you what is the main amendment and what I can talk to you about is what... the contract, I agree is public record, however, the contract talks about doing work on all of the amendments. Ms. Kawahara: Yes. Mr. Castillo: Whether or not you give weight to which amendment you give weight to is your opinion on which of the amendments you think is important. You know, for some amendment 1 may be more important than MEETI ~ - - • COUNCIL NG 28 June 16, 2009 amendment 2, but the purpose of going into executive session at this point in time does involve the liabilities of the Council, so I don't know how... right now, you started with in general, then you went into specific, so I don't know how you can go around that. Ms. Kawahara: In general, I am unhappy with the lack of product that we have. Mr. Castillo: See, and then... you are commenting on the work product and it does involve counsel and it is for, right now, the subject matter is appropriate for executive session, and shouldn't be out in the open. You know, we are not trying to hide anything from the people. All I am doing is telling you what the law is and the subject matter that we are talking about now is covered by the law which should not be... which is appropriately for executive session. Ms. Kawahara: Uh huh. Mr. Castillo: And I know... you know, the way you feel about how things were done, the level of work that was done, the amount of money that was paid, those are all within... those involve everything right now should be in executive session. Chair Asing: Any further questions? Ms. Kawahara: Alright, I think I have... Chair Asing: You have another question? Ms. Kawahara: No, I can't figure out how to ask the question, so... Chair Asing: With that, Councilmember Furfaro? Mr. Furfaro: Yes, Al, I would like to say that, you know, perhaps I don't have expectations that were met, but more importantly, I would like to move into executive session to basically say, first of all, when the amendment passed, the rules in general are that there are 20 days to in fact verify that election. If the bills in particular, amendment number 6 was not date specific, it is then 30 days after that, that it is enacted, so just to answer my colleagues across the table, the fact of the matter is, we need to know what kind of liabilities we have exposed to us because the bill is enacted and there are interpretations being made by sub departments of the County that are having people who are applying for particular permits and so forth. Actually signing affidavits. I would like to get to a point although I am not satisfied at the moment on what those liabilities might mean. So I will, in fact, support going into executive session for those reasons. Chair Asing: Thank you. Councilmember Bynum? Y COUNCIL MEETING - 29 - June 16, 2009 Mr. Bynum: I just want to say that my earlier comment was a suggestion because I have not received all of the documents. I know I will right. Chair Asing: The idea for the executive session is so that you can receive the documents that is why we are going to go into executive session. Why would you not want to get the information when we are going to go into executive session and get the information? Mr. Bynum: Nobody told me the documents were available to us and I am not... Chair Asing: Okay. Mr. Bynum: I am not... I am happy to go into executive session. I will vote for it. I just was trying to explain myself. You know, if I don't receive the documents today or I don't have ample time to study them. Chair Asing: Then you vote accordingly on how you feel. You are one of seven (7) Councilmembers. We vote on the issue after discussion and everybody has that same equal opportunity for both discussion in total and your vote, so you have total freedom. That is the intent. Mr. Furfaro: I would like to call for the question. Mr. Bynum: May I continue? Chair Asing: Go ahead. Mr. Bynum: I agree with you what you just said. I am not objecting us going into executive session. I just want to say that if I don't receive the documents today or have ample time to study them, I would like us to be able to continue to discuss this until we reach that point. So I will probably ask that it be on the agenda again. Chair Asing: With that, any further discussion? 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: And have a motion to move into executive session. Mr. Furfaro: I think we have a motion and a second Mr. Chair. Call for the question. Chair Asing: With that, all those in favor say aye? N IL MEETING ~ - - COU C 30 June 16, 2009 The motion to move into executive session on item ES-389 was then put, and unanimously carried. There being no objections, the Chair called for a recess at 11:35 a.m. The meeting was called back to order at 12:35 p.m., and proceeded as follows: ADJOURNMENT: There being no further business, the meeting was adjourned at 12:35 p.m. Respectfully submitted, PETER A. NAKAMURA County Clerk /lki