HomeMy WebLinkAboutP-0107.01-16 Council Minutes 08-2009- COUNCIL MEETING
' August 5, 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,
August 5, 2009 at 9:11 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. Kawakami.
Chair Asing: Hold on. I'd like to suspend the rules.
There being no objections, the rules were suspended.
ROB ABREW: Aloha Mr. Chairperson.
Chair Asing: Aloha.
Mr. Abrew: This week's agenda was recorded and .posted. Rob
Abrew. This week's agenda was received and posted~'eomplying with the State
s,,..
Sunshine law. But there are items on this agenda that do 'not comply with Council
rules. In specific, rule 15, agenda and priority of business. If you look under
rulel5(b), all communications to be placed on the agenda must be initialed by the
Council Chair and received by the Council or the Office of the County Clerk before
4:30 p.m. on the Friday two (2) weeks preceding the day of the regular or
Committee meeting. Now for this meeting, that ~d`ate.would have been July 24 at
4:30 p.m. On today's agenda, we have three (3) items, possibly more, that were
received ~ after that date. Communication 2009-273 was received on July 30 at
3:14 p.m. This communication talks about this body issuing money for a project or
issuing money for something. Communication 2009-274 was filed on July 30 at
6:24 p.m. Communication 2009-276 was filed on July 28 at 12:51 p.m. This
document is a legal document. If our County Council in their agenda are not
following their own rules, I as a citizen feel that a legal document could be in
jeopardy;down the road if this issue was brought up. Also, on our agenda today was
,~-
COUNCIL MEETING - 2 - ~ August 5, 2009
a communication introduced last month as C 2009-251. Today it is on the agenda
as R 2009-50 (means Resolution No. 2009-50). This resolution and communication
also did not follow the agenda posting items on July 22. This was received July 16
at 4 p.m. Anything on that agenda should have been July 10 4:30 p.m. So I believe
acting on that item today would jeopardize anything down the road that could be
decided out of that resolution. I guess my biggest concern is... for the last couple
months, there has been issues about rules and following rules here, and if we have a
written rule, why are we breaking rules to correct those written rules? That would
be my concern. My thought to correct this issue is to remove these items today from
the agenda and... or since it has already been received, they could be put on next
meeting's agenda and it would be a clean slate. We would start fresh, nothing
would have any kind of issue with not being agendaed correctly, missing dates,
anything like that. Being a citizen here for the last six (6) or seven (7) years, this
County has had legal action taken against it many time because deadlines were not
followed and dates were not received. So if we are going to do this, let's start with a
fresh slate. Let's make sure that we do it properly, correctly, and thoroughly.
Chair Asing: Is there anyone else? If not, I would like to call the
meeting back to order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: With that, Mr. Clerk, I believe we have a motion
and a second.
The motion to approve the agenda was then put, and unanimously carried.
MINUTES of the following meetings of the Council:
Public Hearing of July 22, 2009 re: Bill No. 2319
Mr. Bynum moved for approval of the minutes as circulated, seconded by
Mr. Chang, 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 Resolution No. 2009-49.
Resolution No. 2009-49, RESOLUTION NAMING THE KEKAHA BEACH
PARK "MACARTHUR PARK" IN HONOR OF "UNCLE" MACARTHUR DELA
CRUZ:
Chair Asing: With that, what I would like to do is turn it over to
Councilmember Kawakami.
COUNCIL MEETING ~ - 3 - ~ August 5, 2009
Mr. Kawakami: Thank you Mr. Chair. It is an absolute honor to be
able to honor a man from the westside of Kauai who dedicated his time and much of
his life to actually bring a park to Kekaha that was once just overgrown with keawe
trees, so we have a resolution and I am• going to go ahead and read that resolution
naming the Kekaha Beach Park Macarthur Park in honor of Uncle Macarthur Dela
Cruz.
WHEREAS, "Uncle" Macarthur Dela Cruz, a Kekaha resident who passed
away recently, was instrumental in the creation and development of Kekaha Beach
Park, also known as "The Pavilions" or "Mac's Park"; and
WHEREAS, "Uncle" Macarthur Dela Cruz's passion and determination' for
building a dream beach park in Kekaha that all could enjoy was immeasurable; and
WHEREAS, "Uncle" Macarthur Dela Cruz fulfilled his dream by seeking
support from the County of Kauai in applying for and receiving grant funding, by
asking local businesses to assist in using their machinery to develop the park, and
by organizing the group of community volunteers in building the the pavilions, BBQ
areas, and planting the grass; and
WHEREAS, "Uncle" Macarthur Dela Cruz was the backbone to the park's
beautification and maintenance as he spent countless hours watering the grass,
pulling out "kukui's", and planting coconut trees to provide shade from the hot
Kekaha sun; and
WHEREAS, "Uncle" Macarthur Dela Cruz will be remembered by the
Westside community for his dedication in providing a beautiful beach park that
would benefit the people in his community; now, therefore,
BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF KAUAI,
STATE OF HAWAII, that the Kekaha Beach Park be hereby named "Macarthur
Park" to recognize and honor him for his accomplishments for the Kekaha
Community.
BE IT FURTHER RESOLVED, that a copy of this resolution be forwarded to
Mayor Bernard P. Carvalho, Jr., with a request that appropriate signs be erected at
the park to proclaim his name.
COUNCIL MEETING - 4 - ~ August 5, 2009
BE IT FINALLY RESOLVED, that a copy of this resolution be forwarded to
his widow, Mrs. Linda Dela Cruz, and the Director of Parks and Recreation.
It is my honor and privilege to bring this resolution to the Council. At this
time, Mr. Chair, if I could call upon our Director of Parks, Lenny Rapozo to say a
few words followed by Mr. Eddie Sarita who really helped gather all the data and
facts behind this. Thank you.
LEONARD RAPOZO, JR., DIRECTOR OF PARKS & RECREATION: For
the record, the Director of Parks & Recreation, Lenny Rapozo. At a request of
Councilmember Kawakami, I brought Mr. Sarita to give some background as to how
the park came to life and how the moneys were allocated, and to give a brief history
as how Macarthur Dela Cruz Park became Macarthur Dela Cruz's personal dream
and his labor of love for the community.
EDDIE SARITA, KAUAI WAR MEMORIAL CONVENTION HALL
MANAGER: Thank you Mr. Rapozo. Good morning Councilmembers.
Ms. Kawahara: Good morning.
Chair Asing: Good morning.
Mr. Sarita: For the record, I am Eddie Sarita, Manager of the
Kauai War Memorial Convention Hall, Ho`olokahi Coordinator, and also the
Coordinator of the Adopt A Park Program under the Department of Parks &
Recreation. First of all, I'd like to just circulate for your information... you can view
that as I speak... a picture of the park as it was being developed. It was first... the
park was first developed during the Administration of Mayor Kusaka under the
Ho`olokahi program where a grant of $15,000 was made for construction of the four
(4) pavilions that was in the year 2001-2002. I am sure Councilman Daryl
Kaneshiro and Council Chairman Asing will remember appropriating the funds. At
that time, the County cleared the area out at what is known as First Ditch. And at
that time, the area was just (inaudible) wind swept parcel of land where people
went down there to drink beer and fishing. When Mayor Kusaka asked me to see if
we could get the park... the area developed in the park, I approached Linda Dela
Cruz and her husband Mac to see if they would help and act as sponsors because, at
that time, there was no adopt a park program. That program came into reality in
~ 2005, so under the Ho`olokahi program, she volunteered because I had worked with
both Mac and Linda earlier on the development of Kekaha Gardens Park. And so I
approached her and she through, with her `ohana, Kekaha `ohana group, agreed to
sponsor the park. We got the grant and with the help of the PMRF (inaudible) and
other Kekaha community volunteers, they built the four (4) pavilions that you see in
the picture that is being circulated.
Now those four (4) pavilions were built for total under $15,000 and I think
today if you tried to duplicate that fee, it would cost you well in excess of maybe
COUNCIL MEETING ~ - 5 - ~ August 5, 2009
$60,000 or $70,000, so the County really had awin/win situation there. However,
no funds were allocated for the landscaping and care of the area. There was no park
caretaker assigned to the parcel, so Linda and Mac took on the job of doing
landscaping. I provided whatever... to them whatever plants I could find, coconut
trees (inaudible) for planting. The County installed a waterline from Kekaha, all
the way to the park which today is also used by the lifeguard station. And Linda
also got the Kikiaola construction to build a shower on the property to accommodate
people who go swimming in the area. Since that time, I believe Mac has been
devoting his life almost daily maintaining the... planting, landscaping, and
maintaining... irrigating, weeding as the resolution indicated earlier.
Linda would periodically would tell me that he spent more time down there
at that park, than he did in cleaning his own yard. So, today, the County has a
beautiful park. If you can look at the pictures, you can see the before and after
photo... what it looked like in September 2002 and what it looked like when the
recent photos were taken. Mac even borrowed equipment from the corn company
that he worked for and moved boulders around, placed poles,' and maintained
irrigating again as I said in mowing the lawn. Today, you can see that it is a
beautiful, beautiful area where people of Kekaha both residents and visitors can
picnic and enjoy the area. So I think it has been awin/win situation. When the
adopt a park program became a reality in 2005, both Mac and Linda adopted the
park through the program and have continued their care for the park. So it... you
know, I would just like to say in closing that at one time I had a conversation with
Mac and we were discussing what to name the park... meaningful, you know,
practical purposes, I felt that it should be called First Ditch Park because that is
where that First Ditch is. But Mac felt that he would call it Sunset Park and I
asked him why, he said, well, you know, when you are here Eddie, and I am
working and I see the sun going down, it reminds of a beautiful sunset, so I look at
it and I think of it as being Sunset Park. You know, I think if I may recognize
someone who dedicated his life almost, the last seven (7) years, and also a lot of
hard work to making the park what it is today, I think is a nice gesture. Thank you
very much.
Mr. Kawakami: Councilmembers, any questions for Mr. Sarita or
Mr. Rapozo? Councilmember Bynum?
Mr. Bynum: Thank you Mr. Rapozo. Mr. Sarita, thank you for
the leadership that you are providing in the Adopt A Park Program and, you know,
we have a wonderful community and I really appreciate how over the last few
Administrations that you've helped kind of structure the public/private partnership
through Adopt A Park through the County grant funds. As you point out, when the
community puts their efforts in, you know, we come up with something that people
have ownership and they really like it, so it is a honor for us to recognize those
individuals who go way above and beyond. You know, to nurture these public
places that I think we take better care of when we are involved in, so Uncle Mac, it
is just an honor for us to be able to recognize that effort, and it is great that the
COUNCIL MEETING - 6 - • August 5, 2009
County has kind of institutionalized that support from the community through the
Parks Department and through Adopt A Park. I just wanted to say that, you know,
I believe we are working on... Mr. Rapozo kind of a policy about how to
appropriately recognize those individuals and those groups in the community that
contribute to our parks, is that correct?
Mr. Rapozo: With the help of the Park Advisory Committee, we
are putting together some form of policy or how do we recognize and what we want
to term them as community heroes. So if this, in effect, park is named Macarthur
Dela Cruz Park, this will not prevent somebody else who comes along and takes
care of the park and we will put together guidelines to recognize those and call them
community heroes. So this community hero would be in addition, Macarthur Dela
Cruz Park, this community hero may have helped in the caretaking of the park...
not only just that particular park, but parks all over Kauai. We were working with
our Parks Advisory Committee which consist of different segments of our
community that sit on this advisory committee to come up with some guidelines
that I think would be appropriate to recognize those that have put their sweat and
effort to help care for our community parks across the island, so yes.
Mr. Bynum: Thank you very much for that ongoing effort with
the new Administration and, you know, picking up on the past and moving forward.
So I intend to support this resolution today and I want the community to know that
we are anxious to acknowledge those individuals because all over the island, people
are providing ownership of these public places and working in partnership with the
County in a way that it is truly win/win, so thank you very much.
Mr. Kawakami: Okay, fellow Councilmembers? Councilmember
Furfaro?
Mr. Furfaro: Yes, thank you very much. Mr. Sarita, I want to
thank you for a very, very nice overview. This park is...actually some of the terms
you used for Macarthur and Linda showing stewardship and certainly dedicating a
sense of pride in their community is very described in your testimony today. I do,
you know, plan to support this resolution. You have touched on problem solvings
that Mac and Linda have addressed from water to planning, to collaboration with
our groups, and so forth, and I just want to thank Macarthur and Linda and their
family for just taking so much effort in their community to make this happen. It is
a lovely park even though I saw the van had a Walaau bumper sticker on it. I
wonder if Mr. Chang was recruited with his rake and hoe. Thank you for a very,
very nice narrative on the accomplishments of this park and the recognition of
Macarthur. Thank you.
Mr. Kawakami: Okay, fellow Councilmembers? Thank you.
Chair Asing: I just want to say thank you to Mrs. Dela Cruz.
Thank you very much for, you know, all the work that you folks do. You know, I
• •
COUNCIL MEETING - 7 - August. 5, 2009
don't think that many people realize that the County by itself is not able to take
care of our parks. It takes volunteers, it takes people like all of you in Kekaha for
your help and assistance. Without that kind of assistance, we would have a really,
really tough time maintaining our parks, so my hats off to all of you and all of the
volunteers that help throughout the island for our park system, so mahalo.
Mr. Kawakami: At this time, we have some members, the Dela Cruz
family. At this time, we do have some members of the Dela Cruz `ohana and I
would like to call them up to say a few words.
ALDEN PABLO: Howzit. Good morning, my name is Alden Pablo for
the record. I am the spokesperson for the family, but first of all, I would like to tell
Derek, thank you very much for spearheading this for us and appreciate you guys
giving us the time today to try to recognize my Grandpa and all his hard work and
also Grandma on making this community park something that everybody can share.
Thank you guys very much. This kind of all started when I heard... you know, I
knew about this park and I was living in the mainland and I heard Grandpa's park,
Grandpa's park, he built this park, and I was like, wow, it was only keawe trees
over there, you know. When I came home and it was this beautiful park and it was
like, oh, you know, so he built that for the community and everybody. This all
started off with... we figured, we put up a sign that said Macarthur Park, you know,
designating that it is his, but we were thinking it might be illegal to just come in
and put up a sign. So we were thinking about all the different routes we could go,
so we contacted who we needed to, and you know, got this ball rolling and he had no
idea he would rather, you know, not have it named Macarthur Park. But in respect
to all of his hard work and self sacrifice, you know, we wanted to pay him that
respect, so I would like to thank you guys for the time and supporting the naming of
the park and from my family to all you guys, thank you very much.
Mr. Kawakami: Councilmembers, any questions for Pabs?
Chair Asing: I don't have any questions, but, boy, you must be
great... feel great about Grandpa.
Mr. Pablo: What was that? I am sorry.
Chair Asing: You must feel great about Grandpa.
Mr. Pablo: Oh, I do. Our family is real proud of him. Like he
_ is our park backbone and he was the strength. He taught all of us in our family
hard work, you know, and everything revolves around working hard and striving for
what they want to do. So we will carry on all of his mana`o.
Chair Asing: I can just feel the values from him being passed
through you. I can hear it in your voice. You are probably an image of what he was,
so thank you.
COUNCIL MEETING. - 8 - • August 5, 2009
Mr. Pablo: Thank you guys.
Mr. Kawakami: Councilmember Kaneshiro?
Mr. Kaneshiro: Thank you Derek. I was just wondering if you could
also... give him the opportunity of introducing the rest of the members that are
here. I know how important the Dela Cruz family is to the Kekaha community and I
know that Bay has been involved in a lot of activities. And, you know, it is really an
honor for us to have a family like your family come out and take this project and do
it. I was just there on Thursday, last Thursday, and it is unreal, beautiful. The
grass is green and really shines out when you go that side of the community. But,
again, with the Dela Cruz family taking on this park and naming it Macarthur, we
know that you have a lot of respect in the Kekaha and westside community. I know
that the people will always look up to the park and contribute and help and keep
the park as Bay has kept a lot of those guys on a straight road. He has always been
a person to do that, so... you know, with his community involvement. Thank you so
much.
Mr. Pablo: I can introduce my Grandma, Grandma Linda back
there, my Dad Bay Dela Cruz, my sister Ala, my Aunty Rosie is here, brother-in-law
Chris, and some of my good friends... David Hanashiro, Niko Naumu, and some
others were in here earlier, but I tried to round up as much guys as I could. We
have more community support. Like you said, you know, people in the community
of Kekaha already respect the park as Macarthur Park. You will see it all the time
in the newspapers, invitations, services, and we just want to make it official, get
that out of the way, and keeping the park beautiful.
Mr. Kawakami: Councilmember Chang?
Mr. Cliang: Thank you for coming all the way from Kekaha. We
want to thank Eddie Sarita again for... am I on? Hello, hello. I want to thank Eddie
Sarita for the history. Thank you very much and also Lenny Rapozo. Lenny, I know
that you have been working on this for a long, long time and especially want to
thank Councilmember Kawakami. I know that you have been working on this for a
long time and as family friends and respectful to our westsiders. But, you know, I
just wanted to say in relationship to Uncle Mac. It is very interesting because when
Eddie Sarita talked about the win/win situation, you know, on that hot sunny day
when we shared our aloha to Uncle Mac, you know, all of sudden it was calm and
then the makani just started just picking up like it was a little bit restless like let's
go, the Pigao family had the big food in the tent next door. I just remembered the
tent moving and if you folks could remember, everybody was holding onto all
different parts tippy toeing and nobody moved and I think when the service
concluded, it was real calm and it was all good. It was all at peace and I think that
speaks a lot for Uncle Mac because for him to want to name a beach Sunset Beach
instead of even thinking about himself for all the work. That speaks a lot about the
COUNCIL MEETING • - 9 - ~ August 5, 2009
man that he is and of course your Grandfather, but I can only think being so
situated next door to the lifeguard stand... you know, for myself, I talked to a lot of
local people and especially the visitors, but a lot of them, you cannot go out to
Polihale because, you know, the potholes, the rent a cars, and what have you, but,
you know, I am sure that some time when visitors used to go there, he also was
there to give them local knowledge as far as the water conditions are concerned. I
mean it goes further than putting a park together and, you know, he used to
always wear his lumber jack shirts, I guess to protect from the sun, but, you know,
he just stood out there like somebody like an authority and I think about that song,
someone left the cake out in the rain. I don't know if anybody is as old as I am, but
I think it is entitled Macarthur Park is the title and then I start thinking Donna
Summers song stories and what have you. But, you know, the... I think the good
thing about the naming of the park is that, you know, out of respect when the local
people know that that is his park, they will clean up the opala, they will take care,
they would help to kokua when you have `ohana day or hoolokahi day, and I think it
is just respectful and I am honored, and maybe a lot of people, you know, will
someday call him the general. I don't know if that is his nickname, but that is a
pretty cool name, you know. General Macarthur, you know.
Mr. Pablo: That is funny because he was actually named after
General Macarthur... that was one of his famous lines that he is the general and he
shall return.
Mr. Chang: Well, he did and thank you folks for coming and,
again, sincerely thank you. It is a great, great honor and again to Councilmember
Kawakami, thank you very much and to Lenny especially and Eddie. Thank you
very much. Congratulations, we are excited.
Mr. Pablo: Thank you.
Mr. Kawakami: Do you want to say a few words? Any other
Councilmembers want to... Aunty Linda, do you want to come up and say a few
words or...
LINDA DELA CRUZ: I want to thank you Council Chairman,
Councilmen, for all your hard work and for the opportunity to actually have it
reality now. I also want to thank Lenny Rapozo, Eddie Sarita, my family... I am
sorry, but I am still having a hard time. It has only been a month, but I want to
thank everybody for the opportunity to have this done and I am sure that he would
appreciate it very much. Thank you.
Mr. Kawakami: Councilmember Furfaro?
Mr. Furfaro: First, from the entire Council, certainly our
condolences, but I do want to tell you that I am very honored to support this
resolution that really was lead by you and your late husband on really
COUNCIL MEETING - 10 - ~ August 5, 2009
demonstrating what `ohana here on our island is about. The real long term
commitment to the community and so forth and I just wanted to personally say,
thank you to you, your family, and I am honored to support the naming of this park
after your late husband.
Ms. Dela Cruz: Thank you.
Mr. Kawakami: Councilmembers? ~II
Mr. Chang: Aunty Linda, thank you very much for coming
(inaudible).
Ms. Dela Cruz: Thank you.
Mr. Kawakami: Aunty Linda, I also want to say thank you so much
and like Pab said before, when I first heard about this, I approached one of the staff
members and asked them, oh, you know that park in Kekaha by Inters and First
Ditch, the first thing out of his mouth was, oh, Mac Park. So I was like, oh, okay,
exactly, and the wheel started turning, but I really want to thank you for
everything you have done. When you go out for the 4~ of July celebration at PMRF,
you have people from all over the island at that park and they wouldn't be there if it
weren't for all of your hard work and your family's hard work, so thank you so
much.
Ms. Dela Cruz: Thank you.
Chair Asing: I just want to echo what everybody said which is
thank you for all the things that you have done. We really appreciate it.
Ms. Dela Cruz: Well, we have been in the Kekaha community for a
long time and this is our way of giving back to the community.
Chair Asing: Thank you. Are we going out to take a picture?
Mr. Kawakami: Do you want to recess this meeting?
Chair Asing: What we will do is recess the meeting and...
Mr. Kaneshiro: Why don't we vote on the reso first?
Chair Asing: We will do the reso first. Do you want to read...
The meeting was called back to order, and proceeded as follows:
Mr. Nakamura: Council Chair, we are on Resolution on page 4,
Resolution No. 2009-49.
COUNCIL MEETING • - 11 - • August 5, 2009
Resolution No. 2009-49, RESOLUTION NAMING THE KEKAHA BEACH
PARK "MACARTHUR PARK" IN HONOR OF "UNCLE" MACARTHUR DELA
CRUZ:
Mr. Nakamura: We don't have a motion yet.
Chair Asing: Can I have a motion to approve?
Mr. Kawakami moved to approve Resolution No. 2009-49, 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.
I
Chair Asing: I'd like to call for a short recess and maybe we will go
downstairs and take pictures.
There being no objections, the Chair called for a recess at 9:45 a.m. The meeting
was called back to order at 9:55 a.m., and proceeded as follows:
Chair Asing: Mr. Clerk, next item please?
Mr. Nakamura: Council Chair, we have a request at this time to
take up on page 2 of the Council's agenda communication C 2009-270.
C 2009-270 Communication (07/24/2009) from Harold Matsunaga,
requesting agenda time to speak to the Council regarding long-term affordable
rental tax matter:
Chair Asing: With that, I would like to suspend the rules.
There being no objections, the rules were suspended.
Chair Asing: Mr. Matsunaga?
HAROLD MATSUNAGA: My name is Harold Matsunaga from Lihu`e. I
want to thank Council Chairman Asing and this Council to give you this
opportunity to speak on the long term rental tax thing. I know we have some new
Councilmembers and the County has a lot of ordinances in the past. Briefly, I just
wanted to bring this up that some time ago, this bill was passed, brought up I think
by Daryl Kaneshiro and Jay Furfaro, yea? And this was to give compassionate
landlords who rent their homes... what the County feel is affordable within the
guidelines. And by doing this, the County would not raise the property tax more
than 6% a year and I am thankful for this tax break. Now I have been here before
COUNCIL MEETING. - 12 - ~ August 5, 2009
once on this matter and recently, my last tax notice that I got... I was paying a little
over $1,200 in 2008, then it went up to $2,178.03 and I was upset, so I went to the
tax office, the property... and I told them that I wanted to talk to the manager, the
head of the department. She listened to me and I was fairly upset, but then she
said, well, you come back and show me proof that you had filed on December 31.
And I was 99% sure I did file, so I said I would be right back. I went home, I
couldn't find it and since then, I turned my house upside down. The only place I
didn't look is in the attic, okay, but right now, I am less than 50% sure that I filed.
Anyway, I feel that there should be some kind of an amendment because I did not
raise my rent. I am still within the guidelines. The only failure if I did fail is to meet
the December 31 deadline. Now, I don't... I am not here just for myself, but I am
here for all the landlords that are abiding by this rule and I am sure that the
majority of landlords are not young people. They are about my age or younger and I
am older than all of you except... I am few steps behind Kaipo, but I thought he was
my classmate, but I am just a few years younger. So, you know, as you get older,
you do have senior moments and today, I feel like I am a criminal before judges
because now my new tax bill is based on the current assessed value, and I feel this
is not fair. It should go back to where I first started (inaudible) 6% and you can
charge me a penalty for failing to file on December 31, but don't make this a lifetime
bill because this year, I am paying $800 more, next year it will be $840, next year it
will be $880, $900, and as the years go by, it is going to run into the thousands. If I
passed it onto my children and they want to rent it at this affordable range, it will
be a lifetime bill of thousands of dollars which I feel is not fair. And the County can
check because my renter was in the HUD program. It is easy for the tax office to
find that did I go over the rent, did I charge them over what the County guidelines
is... they can easily call HUD and they have a record of what my rent was.
So I am asking this Council if you can make amendments, not for me, but for
the other landlords that have fallen between the cracks that as long as they are in
the guideline that their tax should be assessed at the prior level and not the
current... the big job where we will be taxed for the rest of our lives. So I feel this is
really a fair bill. I mean what I am asking... I am not asking something for myself,
but for all that... every year, there is going to be landlords that fall between the
crack and somehow, you know what I am talking about. I talked to several
landlords and they have no idea what I am talking about. Really, they don't know. I
hope that the County has a better method of putting out the message about an
ordinance like this. Maybe if you have a Council goes to different parts of the island
and put it definitely for landlords... for this affordable, then they would understand
this ordinance better. But what I am asking this Council is to make amendments to
where the current assessment will not be the current assessment, but go back to
where I last file with the 6% increase with a penalty just like how my current tax
bill if I don't file by August 20, there will be a 10% increase. Okay, I don't want to
pay the 10%, but at least this is only a one time penalty. Do not penalize us for the
rest of our life and that is all that I am asking.
Chair Asing: Thank you.
COUNCIL MEETING ~ ~ - 13 - ~ August 5, 2009
Mr. Matsunaga: Thank you.
Chair Asing: Any questions? Councilmember Bynum?
Mr. Bynum: Mr. Matsunaga, thank you for coming here today
and if I understand you correctly because you missed it, it kind of reset, right? To a
different...
Mr. Matsunaga: It reset to the current value.
Mr. Bynum: And I think your testimony is right on the mark
and I assume that the Council would want to entertain your consideration because I
want to thank you because you are representing a bunch of landlords you said...
Mr. Matsunaga: Yea.
Mr. Bynum: And I want to thank you and those landlords who
are charging below what maybe the market would bear because they are good
community members who know that they are supporting and they are making
personal sacrifice to support families that need housing and so it is very consistent.
Think what the Council's intent to encourage that kind of long term rental, so I
think you have made an outstanding point that, you know, maybe there is a
nominal fee for the extra processing, but...
Mr. Matsunaga: Yes.
Mr. Bynum: But you don't get reset and lose that because of an
error. People make errors and so I think I understand your testimony and I assume
that Councilmembers would be inclined to support what you are saying... at least I
would.
Mr. Matsunaga: For now, you know, the tax is getting due on
August 20, so I guess I need to pay what they say, but do I just go ahead and pay it
or wait until what this Council decides if it goes back or...
Chair Asing: With that, Councilmember Furfaro?
Mr. Furfaro: Thank you again for being here and I am sure... my
first recommendation is I would pay that money. I do want to say to you that what
we have to do in process is we probably have to refer this bill that, you know, we
discussed last term to Mr. Kaneshiro's committee. Mr. Kaneshiro is now the
Finance Chairman, I was the Finance Chair, but we will then try and shape some
kind of amendment that recognizes people who did commit for the longevity of ~
affordable rentals. That was the whole intent of the bill, but for us to say not to pay
would be inappropriate for us at this time.
COUNCIL MEETING - 14 - ~ August 5, 2009
Mr. Matsunaga: Another thing, you know, one year goes by very
fast. I am willing to commit for three (3) years that I will not raise my rent, then,
you know, less chances of me falling between the cracks that I did not file. We had
a valid reason that... last year 2008 was one of the worst years because our son had
brain surgery, and we were spending a lot of time away from home at the hospital
and whatever. I feel it was a major distraction for us too, but I just want you to
really consider what I ask this Council.
Mr. Furfaro: Your testimony was well received I think and also,
you know, it is about some small penalty that deals with resetting it and I think
your idea of a longer commitment would be most helpful, but we have to refer this
to a committee. Hopefully, we have to refer this to committee and hopefully we will
put it in Mr. Kaneshiro's committee.
Mr. Matsunaga: Thank you.
Chair Asing: With that, Councilmember Kaneshiro?
Mr. Kaneshiro: I just wanted to thank Mr. Matsunaga for coming
forward and expressing that because it is a situation that doesn't only happen with
you, it happens with a lot of other people... with other landlords where they are
trying to do the best to produce and give affordable rental housing and fall into a
situation like this. A lot of times, you know, it can be a mistake on some part...
maybe they changed the CPA or change accountant assuming that they have filed
it, so we realize, and we see that. Most of the time, it is something that you thought
you did and you just happen never did it and then you get penalized for it. We
realize that and I probably make... in fact, I am going to make an effort to bring the
bill back on the table and have some discussion, so we can have it in Committee and
look at how we can try to resolve some of these problems, so the landlords and
people like you can keep on providing affordable housing for the residents. Thank
you.
Mr. Matsunaga: Thank you.
Mr. Bynum: Thank you Mr. Matsunaga.
Chair Asing: Any other questions Councilmembers? If not, thank
you very much.
Mr. Matsunaga: Thank you very much.
Chair Asing: Glenn?
GLENN MICKENS: For the record, Glenn Mickens. I just want to agree
with Mr. Matsunaga 100%. Kaipo, in your terms, I don't think this was a flagrant
COUNCIL MEETING ~ - 15 - ~ August 5, 2009
fowl. You know, you can penalize him, give him his two (2) shots, but don't penalize
him for two (2) or three (3) ball games. If you reset the... maybe your colleagues
don't understand that, but, anyway, reset it, but reset it in the right way like Tim
mentioned. I think he has a... I read through the bill that I think JoAnn and Mel
had proposed this bill... I think introduced it and I didn't see anything in that bill
that specified that this is what they did when they penalized them as
Mr. Matsunaga said. He is more than willing to go ahead and pay that penalty...
hey, all the seniors have that senior moment, so I think he is more than
(inaudible)... Daryl, you will be there.
Mr. Kaneshiro: I already am.
Mr. Mickens: That time will come, but as long as it wasn't a, you
know, a flagrant violation of the rule that I think this thing should be... I think I
only saw one section or maybe the Director has the authority to set rules or
something, I don't know. Maybe under those rules that he could do it, but I don't
know. But, anyway, I just want to say that I do appreciate you guys listening to his
testimony. I thought it was right on target and I hope the amendment will be made.
Thank you.
Chair Asing: Councilmember Bynum?
Mr. Bynum: Thank you for your testimony. I love it when I agree
with you and, you know, I... you know, we all make mistakes. I have a professional
license that I have to renew every two (2) years. I got a notice that I failed to renew
and they said, hey, you failed to renew, you have to pay a $100 fee, but they didn't
take the license away. So, you know, that is what Mr. Matsunaga is saying and it is
a very reasonable request.
Chair Asing: Thank you. Any other questions? If not, thank you
Glenn.
Mr. Mickens: Thank you Kaipo.
Chair Asing: Is there anyone else who wants to speak on this
item? 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: I would suggest that we refer DK's letter and refer
it to the Finance Department, Real Property Tax Division, and then get some input
from them and they will report back to us, and then we will then work on a bill. So
with that, any further discussion?
Mr. Furfaro moved to receive C 2009-270 for the record, seconded by Mr. Bynum,
and unanimously carried.
COUNCIL MEETING. - 16 - ~ August 5, 2009
Chair Asing: Can we have the next item please?
Mr. Nakamura: Council Chair, just going back to the last item. Our
understanding that it is a motion to receive and that we will refer the letter to the
Finance Department for input. At this time Mr. Chair, we are back on the first page
of the Council's agenda on communication C 2009-264.
C 2009-264 Communication (06/30/2009) from the Director of Planning,
transmitting the Planning Commission's automatic approval in accordance to
Section 8-22.5(a) of amendments contained in ZA-2009-8 (Proposed Draft Bill No.
- 2298) due to their inability to reach a majority vote:
Chair Asing: With that, what I would like to do is, you know,
ordinarily, we wait until the bill comes up to take testimony, but I believe there is
quite a few people here who wants to testify now. Am I correct? So we can get you
up and you don't have to wait until the end of the agenda. So with that, what I
would like to do is suspend the rules.
There being no objections, the rules were suspended.
Chair Asing: Who is going to be the first speaker up? JoAnn?
Ms. Yukimura: Council Chair and members of the Council, JoAnn
Yukimura for the record. I wanted... I know that this bill is posted for first reading
and setting a public hearing. As someone who had a lot to do with the vacation
rental bill, I wanted to give you some background on it and state two (2) reasons
why they should go forward for consideration and deliberation. One is fairness and
two is the economic importance of vacation rentals assuming proper regulation of
them. What the bill proposes to do is to give the Planning Department some
direction in terms of possible enforcement agreements on... for vacation rentals on
ag lands which would suspend enforcement and give no additional rights nor take
away any rights either on the part of the County or the part of the vacation rental
only until the important ag land study is completed. The reason for this is that
there are some vacation rentals that are presently on ag land which after the IAL
study may not be on ag land anymore, and they are being denied the possibility of
grandfathering simply because they are on ag land. And if they are not on real ag
land, then they are penalized because of the County's failure to follow a constitution
mandate in 1978 to identify ag lands of importance to the State. And so what this
bill would do is say do an enforcement agreement that suspends any enforcement
until we find out if you are really on ag land or not.
If you are on ag land, then the ag rules do apply whatever they may be. If you
are not on ag land, then you are entitled to grandfathering if you made every
other... all the other requirements for grandfathering. And so I want to explain
that deals with a very small subset of vacation rentals. It does not allow,
COUNCIL MEETING • - 17 - • Au st 5, 2009
presuming proper enforcement the creation of any new vacation rentals. It is only
those vacation rentals that can show they were operating legally prior to the date
when we passed this vacation rental bilUOrdinance 864. And the second reason is
that we do have to recognise that vacation rentals are part of the economic
structure of this island and they do create a lot of jobs, small jobs, small businesses
whether it is catering, groundskeeping, cleaning, massage and other activities, and
they are entitled to be grandfathered in if they comply with or abided by all -the
requirements. I agree with the testimony from Pono which I think you have
received in terms of the problems with proper administration of the vacation rental
bill. And I think that is something that the Mayor and the Planning Commission
need to address as an administrative matter because without proper
administration, our laws really don't have good credibility and County government
doesn't have good credibility. But I believe that is a separate matter. It is a
related, but separate matter in terms of what has to be done. This bill addresses
what should be enforced and not enforced. The issue of Planning Department
enforcement is how the enforcement should be done.
Chair Asing: Thank you JoAnn. Any questions? Councilmember
Bynum?
Mr. Bynum: Good morning. Are you familiar with the
amendments that the Planning Department has recommended to this bill?
Ms. Yukimura: I am sorry, I haven't looked at them.
Mr. Bynum: I will hold this discussion for later.
Ms. Yukimura: Okay.
Chair Asing: Thank you. Anything else, if not, thank you JoAnn.
' With that, Caren?
CAREN DIAMOND: Good morning Councilmembers. Caren Diamond.
The following testimony is presented on behalf of residents and families who live in
the Wainiha and Ha`ena area. I am speaking for Protect Our Neighborhood `Ghana.
We do not support giving the Planning Department any additional authority to
further grant enforcement deals. This is all the same bill, so you are... we have the
Planning Department asking for an expanded role... trying to' say that this time
they will do it right, but I want to present this testimony on how it has been going.
Mr. Furfaro: Can I just make a point of order here? _
Chair Asing: Go ahead.
Mr. Furfaro:, Caren, I read your testimony and I would certainly
like to hear it delivered to us, but I do want to remind you and testifying on this, the
COUNCIL MEETING. - 18 - • August 5, 2009
item that is on the agenda for us is the ag piece. Our comments that will focus on
your testimony, you are allowed to broaden the scope of your testimony. We have to
stay a little bit more narrow and that is all that I wanted to say just so that we
understand.
Ms. Diamond: Thank you Jay. I am presenting this for the ag piece
because you are asking for additional authority for the Planning Department.
Mr. Furfaro: And the references that you are making are to the
bills and the implied inability of Planning in the residential area and we may be
restricted on how much we can give you back feedback although I do plan to give
you some, but I might be... I might be curtailed by the County Attorney and thank
you Mr. Chair for allowing me to speak.
Chair Asing: Yes, go ahead Caren.
Ms. Diamond: Pono asked that the County Council exercise their
oversight responsibilities regarding the implementation of Ordinance 876 and 864
which has been a fiasco. Lack of transparency has reached new lows in our
Planning Department and Planning Commission. Specifically, here are some of the
examples of how the Planning Department has implemented the ordinance thus far.
Section 8-17-10(c) provides that TVR,'s were being used as vacation rentals on an
ongoing basis prior to the effective date of this ordinance and was in compliance
with all State and County land use and planning laws, including, but not limited to
HRS 205, the Comprehensive Zoning Ordinance Special Management Area, Flood
Plain Management, and Shoreline Setback laws at the effective date of this
ordinance up to including the time of application for a non-conforming use
certificate. So this is the same kind of thing that is being asked in the bill that you
have here before you, but the approvals have been granted for some Wainiha and
TVRs despite habitation of ground floor units for TVR,s. Some approvals now
illegally allow habitation on the ground floor of structures located within designated
flood plain areas in violation of the National Flood Insurance Program... in Flood
Plain Management, County Code Chapter 15 which states that space below the
lowest floor may be enclosed solely for parking of vehicles, building access, or
storage. Again, Planning was asked to follow the law in their implementation, but
we are seeing approvals on the ground floor. Section 8-17.10(g) states, failure to
apply for anon-conforming use certificate by October 15, 2008 or failure to obtain a
non-conforming use certificate by March 30, 2009 shall mean that the alleged non-
conforming use is not a bonafide non-conforming use, and it shall be treated as an
unlawful use unless the applicant demonstrates to the satisfaction of the Planning
Commission that the alleged vacation rental use meets the criteria under Section 8-
17.10. So after March 30, 2009, applications come into the purview of the Planning
Commission, however, it appears that some approvals have been or are currently
being granted after the deadline of March 30.
COUNCIL MEETING • - 19 - August 5, 2009
The date section has been removed from the website and timely posting of
the approvals have or have not... do or do not reflect what is happening in the
Planning Department. In the Wainiha/Ha`ena area, 24 applications that were
posted as incomplete on the website, March 30 and April and May and part of June
still listed as incomplete... all of a sudden got changed to approved in the middle of
June, so this is alarming. This doesn't follow what the ordinance says and you are
being asked again to trust what... that this ordinance that you are being asked to
amend is going to be implemented.
Chair Asing: Caren, that was your three (3) minutes, but go
ahead.
Ms. Diamond: ~ Okay, thank you. So although the ordinance
provides for the files to be public and available by March 2, 2009, they have been
kept a secret. No files available at the counter, there are none. So when Pono
requested to access the government documents on April 14, 2009, they still haven't
been complied with. To date, a small percentage of the files that were requested
have been made available. Pono was denied legal access to the records and we had
to submit an OIP complaint, so it is file number URFA-P10-3. This is in your
ordinance. These files are supposed to be publicly available to help implement this
ordinance, but they are not. In accordance with the assurances given to this County
Council by Deputy Planning Director Imai Aiu... the public would have ten (10)
days from the posting date of application on the County website to submit
comments on applications for TVR and non-conforming use permits. The public was
deprived a reasonable comment period. Prior to the approval by the Director, of
multiple applications including two (2) in the Wainiha subdivision... just all of a
sudden show up approved, no date before then, no pending for comments time
period, nothing of the representations that were made before you.
Multiple applications were also listed on the County website with a received
date that was listed after the April 15, 2008 deadline that they were supposed to
take. So the County, the Council, should be concerned about the absence of files
available for public review. In scrutiny, in addition, the files which were made
available to Pono were egregiously lacking and the information required by the
ordinance. For example, no general check list was in the file provided from
planners that identified whether or not the information that was required was
submitted. There was no date and timestamp indications whether they were
approved or denied. The documentation of approval or denial of the non-conforming ,
use certificate by the Department... only one application had that. There was no
signatures of approving staffers. The documents, the report of the required
inspection of the premises which is part of this ordinance... there is no
documentation whether that occurred, whether it didn't occur, whether they...
subject property passed or failed... copies of the letters to the applicant (inaudible)
saying whether their vacation rental was denied or approved. There is nothing of
that sort in the file. There is no non-conforming use certificate number that is
assigned to these people. There is no indication in the files that the special
COUNCIL MEETING. - 20 - • August 5, 2009
management area and the accumulated impacts were even thought about or
considered in the approvals. There is no indication in the files whether or not the
applicant observed the Federal flood ordinances or whether the Planning
Department approved things in violation of that. And the above examples of
missing information from the application files makes it impossible to ascertain
when or if an applicant received a legitimate transient vacation rental non-
conforming use certificate approval by this County. And if approved, what was the
basis for granting that? There is nothing in the files. There is nothing, so we
believe...
Mr. Furfaro: Excuse me just a second Caren. Mr. Chair, her
second three (3) minutes is up.
Ms. Diamond: Would you like me to come back?
Chair Asing: Why don't you finish up.
Ms. Diamond: Okay, thank you. So we believe the actions, the
above actions require further investigation on the procedures that the Planning
Department is using to carry out this ordinance. We really believe that that
authority... it is not coming from the Commission and it is not coming from the
Planning Department and pursuant to the County Charter Section 3.12 and Section
3.17, we are asking for this County Council to please initiate an investigation and
an audit of how this ordinance is being implemented. It is not a minor matter. In
fact, it is turning the entire northshore into a resort, so we are looking at Hanalei to
the end of the road being resort. And even though the visitor destination area that
was legally determined is in Princeville and it is a huge visitor destination area for
the northshore where the rest of the northshore was meant to be residential. That is
not occurring. We are having now this mass... it is an implementation... it is a
registry that they are doing. There is nothing besides just registering them that is
occurring and it is not following the terms of the ordinance which was not meant to
just be a registry. So we are asking for this Council to please exercise your
oversight, please investigate what and how the Planning Department is
implementing this ordinance. It is your responsibility to do that. There is nobody
else in the County that is going to oversee what is happening and the ordinance
originated right here in this County Council and I think the responsibility is here as
well because I don't think that the northshore was ever meant to be a resort from
end to end.
Chair Asing: Caren, I am going to... Thank you.
Ms. Diamond: Thank you.
Chair Asing: Any questions for Caren? Go ahead Councilmember
Furfaro?
COUNCIL MEETING • - 21 - ~ August 5, 2009
Mr. Furfaro: You know, I just want to point out that the original
intent in the General Plan was not to terminate vacation rentals, it was to manage
vacation rentals. The fact is very broad. Now, I do want to say that I do believe that
some of the things that I have read in your testimony are, in fact, extremely
important to the appropriate administration of the intention of the bill. I agree. I
also want to keep these comments somewhat limited to what I am hearing because
what you are sharing with us is a little broader than what is on today's agenda, but
I am going to say that I may ask that before... I won't postpone the public hearing,
but before we get to the next portion of this bill that is in front of us, I may suggest
to the Chair that this Council gets a briefing from the County Attorney's Office in
executive session as well as inviting the Planning Commission to participate in
sharing with us some of these issues that you have raised today. I think that is
very appropriate for us to do. You know...
Chair Asing: Councilmember Furfaro, yea, I just want to tell you
that is my intent.
Mr. Furfaro: Very good. I am just bringing it up because this bill
is going to come back and it is going to be in my Committee.
Chair Asing: Because there is some very serious issues that are
being raised, extremely serious.
Mr. Furfaro: I think I said that to Ms. Diamond and I just
wanted to assure you without going too much farther that I would like to get a
briefing before this bill actually goes into Committee and I am delighted to hear
that the Chair is thinking exactly the same way that I am.
Ms. Diamond: Thank you.
Chair Asing: Any other questions? Councilmember Bynum?
Mr. Bynum: I just want to thank you for your testimony and I
recently exchanged phone messages with Barbara Robeson who co-authored this for
just that purpose to get this kind of information. So, you know, and to have a better
understanding of your concerns, so this is outlined and I appreciate the leadership
from the Chair and Planning Committee Chair. You know, that session if we have
it could be a lengthy one because, you know, we passed an ordinance, I didn't agree
with all aspects of that, but once it becomes law, it is law, so thank you for this
testimony and I know that the leadership here on the Council intends to follow up
because I just heard it from them.
Ms. Diamond: Thank you.
Chair Asing: Okay, any other questions? Go ahead
Councilmember Furfaro.
COUNCIL MEETING - 22 - • August 5, 2009
Mr. Furfaro: Mr. Chair, this is not a question, but just a moment
of personal privilege if I may.
Chair Asing: Sure, go ahead.
Mr. Furfaro: Caren, I recently saw your resignation from the
Open Space Committee and I just want to take a moment to thank you for your
service. Obviously, you had reasons to step down, but your work was greatly
appreciated and I just want to say thank you.
Ms. Diamond: Thank you.
Chair Asing: With thank you. Can we have the next speaker
please? Bruce?
BRUCE PLEAS: Bruce Pleas for the record testifying as a citizen of
Kauai. I'd like to state once for this meeting disclosure that I am a member of the
Host Community Benefit Community Action Committee. I do not represent or am
not a member of any community organization, non-profit organization, or a lobbying
group registered or unregistered in the State of Hawaii. As a participant in the
TVR from pretty much the beginning, the understanding that we had during the
process was that on ag land TVRs were already illegal by State law. And you can
get a special permit, but none of them that we know had been issued. So, therefore,
it was not a point that we brought up during the formation of this bill. I do not
support this. I do not think that we should have TVRs on ag lands. TVRs should
only be in visitor destination areas. If it happens that ag land is in a VDA area,
then I would agree to that and that would be the only exception. You have seen
what has happened when we have grandfathered and provided non-conforming use
permits and all this has turned into a nightmare. It is much easier to put them in
VDA areas (Visitor Destination Areas) and leave them there. If you are going to
change a bill, I would tighten it up because it is just a nightmare and to do this is
going to create a second nightmare, so that is basically what I had to say, and thank
you very much.
Chair Asing: Thank you. Any questions? If not, is there anyone
else who wants to speak? Glenn?
GLENN MICKENS: Thank you Kaipo. For the record, Glenn Mickens. I
just want to say I think Caren more than made the case of what is wrong here.
Nobody in this Council and you Kaipo did more work I think two (2) years, three (3)
years ago when you put all those signs up on the walls and everything showing the
proliferation of these illegal TVRs. But, you know, we can write all the bills you
want, but without some enforcement mechanism and I don't know the answer to
that... hiring more people or what it is, but unless we get more... put some teeth
into this bill or any bill as you write, they are worthless. They are no better than
COUNCIL MEETING • - 23 - • August 5, 2009
the paper they are written on, so, you know, again, .for me, you guys work your rear
off and we sit here year after year, and this problem just keeps going on, and I know
that there is legitimate legal avenues and procedures that have to be followed to do
them. But, you know, Kaipo, it has to be frustrating especially to you because I can
still sit here and remember all the things you showed the different areas where
these things are just getting well out of hand. So, again, I think the answer has to
be in enforcement. How you do that, I don't have the answer, but, anyway, that is
my testimony. Thank you.
Chair Asing: Thank you. Is there anyone else who wants to
speak on this?
Ms. Yukimura: Thank you Council Chair and members, JoAnn
Yukimura. Just a couple of comments as to what the previous speakers have said.
First of all, Bruce Pleas was a very active participant in our original design group
on vacation rentals and then in our larger group which was facilitated by Elizabeth
Kent from the Center for Alternative Dispute Resolution, and Bruce did give a very
accurate description about our assumptions on ag land. I just want to point out that
this bill is designed for those properties presently on ag land that after an IAL
study might... would not be on ag land and so the ag lands rules wouldn't apply.
And that is the... you know, they are still on ag land because the County has been
so late in doing its study on important ag lands in identifying which are ag lands
and which are not ag lands, that is the problem. I also want to say that the things
that Caren Diamond said so eloquently and correctly about the administration of
the law basically applies to mainly enforcement on residential lands as
Councilmember Furfaro pointed out. Because I don't think there has been any non-
conforming use permits issued for ag land units. And her testimony applies to the
extent... to this present bill before you today does- apply to the extent that
administration of grandfathering TVR,s on residential units is being botched... to
the extent that it is being botched and it may reflect how administration
enforcement of this bill will also occur if this bill passes. That is the concern. I
think we all have, so I think it is very appropriate that you ask the Planning
Department and the Mayor and the Planning Commission who oversee the
Planning Department to inquire about how this administrative process is being
runned.
Chair Asing: Councilmember Furfaro?
Mr. Furfaro: So, JoAnn, you clearly understood that I am not
planning to postpone the public hearing on this bill, but before we get to the next
session of it actually being in Committee, I would appreciate this joint session with
the County Attorney and the Planning Department to give us an overview of the
enforcement that is dealing with those in the residential area, so that we can have a
better understanding of its impact for those in this bill.
COUNCIL MEETING. - 24 - • August 5, 2009
Ms. Yukimura: I think that is a very good idea. I would just suggest
that you ask the Planning Commissioners also to be present because they need to
understand what is happening.
Mr. Furfaro: Thank you for that suggestion.
Chair Asing: Thank you JoAnn. Councilmember Kawakami?
Mr. Kawakami: Thank you. Thank you JoAnn. You know, I know
you have a lot more history behind this piece than I do, so I am just still trying to
determine if HRS 205 is clear that this type of use is allowable in the first place. Is
it clear to you that it is allowable?
Ms. Yukimura: Vacation rentals on ag land?
Mr. Kawakami: Uh huh.
Ms. Yukimura: It is not... well, the opinion that we got from the
previous County Attorney said that vacation rentals are not allowed across the
board on ag land. The testimony that we received from various sectors were that the
law is not that clear and that it could be disallowed only on class A and B lands. So
there is some discrepancy... the way to clear that up is to go into the courts who are
the final arbiters of the law and interpreters of the law and find out exactly what
the law is. I mean it has come up. I think it was the Hokulia case and other cases,
but, you know, it has been a very messy affair and I don't know if there is a clear
and... so part of it is, you know, what is the law? But even if you... even if you
assume that it is the law to not have vacation rentals, the fact that these units
presently on ag may not be really a true ag land. They may not be an ag land and
then the question of whether it is legal or not on ag land doesn't seem to apply.
Mr. Kawakami: But they currently are on ag land.
Ms. Yukimura: They are currently on ag land, yes.
Mr. Kawakami: Okay, well, that is the big issue that I am wrestling
with is HRS 205. I mean that is the one that we get opinions that is allowable and
then you have language in here that says provided that overnight accommodations
shall not be permitted and it just confuses it, so for me, that is the big issue
(inaudible) HRS 205 and that is what I am wrestling with.
Ms. Yukimura: Well, you know, that very clear language about not
allowed on ag land, that was not passed when the original 205 was passed, so there
is some... to further complicate, there were some that were grandfathered in
(inaudible) that particular restriction. Some of that were built before that
restriction became law. So, you know, the way to clear this up might be for the
County to go into the courts to ask for a declaratory action or opinion from the court
COUNCIL MEETING ~ - 25 - • August 5, 2009
order... from the court because they have to enforce this law to get a clear reading of
the law. That might be the way to solve it all.
Chair Asing: Any other questions for JoAnn? If not, JoAnn,
thank you very much.
Ms. Yukimura: Thank you.
Chair Asing: Is there anyone else?
ALICE PARKER: Good morning Council. Alice Parker. Could you
chase some cobwebs out of my brain? I thought there were going to be two (2)
categories of ag land, regular ag land and IAL important ag land and the
destination rentals I guess from what I have been listening to might be okay on
regular ag land, but not important ag land or I may be way out of the ballpark.
Kaipo?
Chair Asing: You are really asking a legal question and I am
going to withhold my comments because I do not want to give you an opinion that is
personal. I am going to be asking the County Attorney's Office for help in getting a
legal opinion.
Ms. Parker: I will restructure the cobwebs. Thank you.
Chair Asing: Thank you. With that, Bruce? Bruce, I am going to
give you one more opportunity to speak because I do not believe I gave you the
additional three (3) minutes after your first three (3) minute, so that is the reason I
am letting you up.
Mr. Pleas: Bruce Pleas for the record. To the Councilmembers, -
to hold everything on IAL (Important Ag Lands) and to try to decide what is an
important ag land, to me, is not something to look at. All of our ag lands are
important, A, B, C, D, E, and F. The ag lands that do not have good soils can be
used for nurseries, hydroponic farms... they are all very important. We need to
know how much of this ag land we need to survive. If we do not have that area
available, we will not be available, we will not be able to survive if we have to. On ~ ,
the executive session with the County Attorney and Planning Department on TVR,s,
please only hold what is absolutely necessary in executive session. Please hold the
rest of it in open session, so the people of Kauai can see what is behind all of this,
rationale for it, and the background. I ask you, please, do not just go into executive
session, have the Planning Commission, Planning Director here behind closed
doors... have them here, so you can ask questions, so the public knows what is going
on. Thank you.
Chair Asing: Thank you. Is there anyone else? If not, what I
would like to do is call the meeting back to order.
COUNCIL MEETING. - 26 - • August 5, 2009
The meeting was called back to order, and proceeded as follows:
Chair Asing: And I am... the motion is going to be...
Mr. Furfaro: We are going to receive this communication.
Chair Asing: To receive this communication and then when we
take up the bill, then we will make a recommendation that we consult with the
County Attorney's Office for a briefing prior to the item getting on the agenda for
the Planning Committee.
Mr. Furfaro: Sir, my comments were prior to it actually coming
to the Planning Committee. If we have the public hearing, for public testimony, it
might be helpful to get that testimony before we go into executive session.
Chair Asing: Yes. With that, Councilmember Bynum?
Mr. Bynum: Time for discussion?
Chair Asing: Yes, go ahead.
Mr. Bynum: Okay, I just wanted to make some comments
because we are discussing this now. The ag lands... we are, for months, are going to
be talking about ag lands because of this bill, because of other bills, because the
State has failed to provide the stewardship and leadership for many years, and has
left it to the counties to do that in many ways. And for a number of bills that will be
here, we are going to have to discuss ag lands and it is very complex and
complicated because the rules and regulations about agricultural land, what you
can and cannot do are the most convoluted mish mash of interpretations and
different standards from County to County, and the State and every County is
struggling with it and it is something that will become, I think, the responsibility of
this County Council to try to go through this maze and come to some clarity. It is
going to be long and difficult and it is going to require a lot of support from the
County Attorney because the opinions vary widely. The Planning Department on
this bill has recommended that we take a different approach than the bill
contemplates that we do it through use permits under 205. Mr. Kawakami is right
on the money, 205 is the governing State law and, you know, the way Maui County
interprets it is very different than the way Kauai County has interpreted it. And so
this is going to be difficult in terms of open versus closed session. I agree with
Bruce that we should do as much as possible in the open session, but, you know,
some of the things that Pono has brought up (inaudible) at issues that are likely to
be litigated and/or are personnel and performance issues, and I will be seeking as I
am sure that everyone else will the guidance of the County Attorney of what items
should be discussed in executive session and which item should be open. But all our
intent I think is to have as much of that discussion as is humanly possible in open
• •
COUNCIL MEETING - 27 - ~ August 5, 2009
session. This is a very emotional issue and I am having major dejavu because I
spent a big portion of my first term embroiled in this discussion about vacation
rentals. We had a bill that we passed unanimously, we reconsidered that bill,' and
then the votes were different. We went back and forth. What I do want to say is I
don't think there is any effort to undo the line that got drawn in the sand finally in
March of 2007 or whenever it was that said from this point forward, no new
vacation rentals will be created outside of the VDA. The question is what we do
with the things that existed prior and that is very emotional and very difficult, but
we all are community members. People who own and operate vacation rentals are
important contributors to our community, they are good people by and large and
people who are concerned about the impact of that unregulated... which it was
unregulated for many years are good and passionate people about our community.
Throughout this, I hope that we can work with mutual self respect and get through
this maze of difficulties. So, you know, I believe that this issue of ag lands impact
so many things, and we will be discussing it on this bill and on a number of others
probably for the next couple of years or more. So it is like get your seat belts on and
here we go because it is very complex, but I have faith in the leadership here on the
Council and the leadership from the County Attorney's Office to get through this
maze, and we need to provide the resources and the guidance to the Planning
Commission to deal with very difficult things where they may have been mistakes
made, so thank you for that opportunity to make a general statement.
Chair Asing: Thank you. Any further discussion? If not, can we
have a motion to receive. -
' Mr. Furfaro moved to receive C 2009-264 for the record, seconded by Mr. Kaneshiro,
and unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: Mr. Chair, we are back on page 1 of the Council's
agenda. The next are items for receipt. If we could receive communication C 2009-
265 and 266 on page 1 and on page 2, communication 267, 268, and 269.
C 2009-265 Communication (07/03/2009) from the Chief of the Building
Division, Department of Public Works, transmitting for Council information, the
Building Permit Information Reports for June 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. Kaneshiro moved to receive C 2009-265 for the record, seconded by Mr. Bynum,
and unanimously carried.
C 2009-266 Communication (07/08/2009) from the Director of Finance,
transmitting for Council information the Period 11 Financial Reports -Statement
COUNCIL MEETING. - 28 - • August 5, 2009
of Revenues as of May 31, 2009: Mr. Kaneshiro moved to receive C 2009-266 for the
record, seconded by Mr. Bynum, and unanimously carried.
C 2009-267 Communication (07/16/2009) from Councilmember Tim Bynum,
requesting Council Chair's rationale for denying his travel request: Mr. Kaneshiro
moved to receive C 2009-267 for the record, seconded by Mr. Bynum, and
unanimously carried.
C 2009-268 Communication (07/22/2009) from Councilmember Derek S.K.
Kawakami, transmitting for Council consideration, a resolution to honor "Uncle"
Macarthur Dela Cruz, who recently passed away, by naming the Kekaha beach
park "Macarthur Park": Mr. Kaneshiro moved to receive C 2009-268 for the record,
seconded by Mr. Bynum, and unanimously carried.
C 2009-269 Communication (07/24/2009) from Councilmembers Tim Bynum
and Lani T. Kawahara, transmitting for Council consideration, a resolution to
amend Rule 10(c) by clarifying that the placement of any proposed bill or resolution
on the agenda is not a matter of discretion with the Chair or Vice Chair to grant or
deny, but merely administrative in nature: Mr. Kaneshiro moved to receive
C 2009-269 for the record, seconded by Mr. Bynum, and unanimously carried.
Chair Asing: Do you want to read the items that we received
again please.
Mr. Nakamura: On page 1, communications 265 and 266. On page
2, communication 267, 268, and 269. We had already previously received 270 after
Mr. Matsunaga spoke.
Chair Asing: Thank you, then we are going to go to 2009-271, am
I correct?
Mr. Nakamura: Yes Mr. Chair.
Chair Asing: Thank you. With that, next item please?
Mr. Nakamura: At this point, we are on communication for
approval. Communication C 2009-271.
C 2009-271 Communication (07/21/2009) from the Prosecuting Attorney,
requesting Council approval to:
1) Apply for, receive, and expend Federal Funds in the amount of
$44,831 for the Prosecuting Attorney's Office and the Kauai Police
Department.
The funding received will be expended on equipment (DVD player, video
camera, Laser Jet Printer, Color Laser Printer, and a television) and training
for the Office of the Prosecuting Attorney. Funds will also be used for the
COUNCIL MEETING • - 29 - • August 5, 2009
Kauai Police Department (K-PAL equipment). Grant funds will be utilized to
commence the programs on October 1, 2009 to September 30, 2012:
Mr. Kawakami moved to approve ,C 2009-271, seconded by Mr. Chang, and
unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: Council Chair, on the next item communication
C 2009-272, if we could move this to the end of the agenda as there is an executive
session briefing on this matter.
Chair Asing: Thank you. So noted. Thank you. Next item
please?
Mr. Nakamura: The next item for approval at the bottom of page 2
is communication C 2009-273.
C 2009-273 Request (07/30/2009) from the Office of the County Attorney for
authorization to expend up to $90,000 from the special counsel account to engage
bond counsel to advise the County with legal and technical advice on bond matters:
Mr. Furfaro moved to approve C 2009-273, seconded by Mr. Kaneshiro.
Chair Asing: Why don't we take that back, we have somebody
who wants to speak on that item. I'd like to suspend the rules.
There being no objections, the rules were suspended.
ROB ABREW: Aloha, for the record, Rob Abrew. I have an issue
with the Council receiving this because it violates your own rules in receiving
communications 15(b). Thank you.
Chair Asing: With that, I'd like to call the meeting back to order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Because I did not recognize the speaker, let's do the
call again Peter.
Mr. Nakamura: Communication C 2009-273.
C 2009-273 Request (07/30/2009) from the Office of the County Attorney for
authorization to expend up to $90,000 from the special counsel account to engage
bond counsel to advise the County with legal and technical advice on bond matters:
Mr. Nakamura: There was a motion and a second to approve.
COUNCIL MEETING. - 30 - ~ August 5, 2009
Chair Asing: Can I have a motion again to approve?
Mr. Furfaro moved to approve C 2009-273, seconded by Mr. Kaneshiro, and
unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The next matter on the top of page 3 of the
Council's agenda is 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 we have a communication from the
Housing Agency indicating a change in position on this matter Mr. Chair, so if we
could get a motion to receive this.
Mr. Kawakami moved to receive C 2009-202 for the record, seconded by Mr. Chang,
and unanimously carried.
Chair Asing: Why don't we take the caption break now? Thank
you.
There being no objections, the Chair called for a recess at 10:55 a.m. The meeting
was called back to order at 11:15 a.m., and proceeded as follows:
Chair Asing: With that, Mr. Clerk, the next item please?
Mr. Nakamura: Council Chair, at this time, if we could go to the
LEGAL DOCUMENTS and this would be LEGAL DOCUMENT: C 2009-275 for
approval.
LEGAL DOCUMENT:
C 2009-275 Communication (07/08/2009) from 'the County Engineer,
transmitting for Council approval to secure a construction right-of--entry and utility
easement at the Department of Land and Natural Resources parcel for the purpose
of the installation of a 12" waterline that will supply water service to the Kealia
Fire Station for which construction will begin in August 2009 as follows:
• Grant of Perpetual, Non-Exclusive Easement to the County of Kauai,
Department of Water Supply for Waterline Purposes, and Issuance of a Right-of-
Entry Permit, Kapa`a, Kawaihau, Kauai, Tax Map Key: (4) 4-6-14:111; and
COUNCIL MEETING • - 31 - ~ August 5, 2009
• To indemnify, defend, and hold the State of Hawaii, Department of Land &
Natural Resources harmless: Mr. Bynum moved to approve LEGAL DOCUMENT:
C 2009-275, seconded by Mr. Furfaro, and unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The next LEGAL DOCUMENT is C 2009-276.
C 2009-276 Communication (07/28/2009) from the Director of Parks &
Recreation, transmitting for Council approval to secure ashared-use path property
adjustment agreement at the Lae Nani Condominium parcel to relocate the existing
public sidewalk on private land to be adjacent and part of the shared-use path as
follows:
• Property Adjustment Agreement by and between the Association of
Apartment Owners of Lae Nani, Inc., a Hawaii Nonprofit Corporation, and the
County of Kauai, portion of Tax Map Key No. (4) 4-3-02:10, containing an area of
approximately 3,600 square feet: Mr. Bynum moved to approve LEGAL
DOCUMENT: C 2009-276, seconded by Mr. Kaneshiro.
Chair Asing: I'd like to suspend the rules.
There being no objections, the rules were suspended.
ROB ABREW: Aloha, once again, my name is Rob Abrew. Once
again, I urge this Council to defer this one. This legal document. If this moves down
a year down the road and you have a lawyer that comes in and you guys didn't
agenda an item right and followed your own rules, that could blow this whole thing
out of the water. Recently, the County of Hawaii had an issue come up that was
decided by the County court that from one date on, everything needed to be
redecided because the County Council didn't follow the rules. So I strongly... defer
this two (2) weeks, do it right, it is not going to hurt anything, defer it for two (2)
weeks and everything is done correctly, the agenda is done correctly, and we are not
going to have an issue down the road. Thank you.
Chair Asing: Thank you.
Mr. Nakamura: Yes, Councilmember Chang?
Mr. Chang: Thank you Council Chair. I don't know if this is
appropriate, but in concern with Mr. Abrew's comments, I did have a chance to chat
with the County Attorney. Is it appropriate to have him up and maybe he can
explain why?
Chair Asing: I don't think it is necessary at this time. We can
consult...
COUNCIL MEETING - 32 - ~ August 5, 2009
Mr. Chang: Because I did ask the question and I did get some
clarification, so I think...
Chair Asing: We can consult with the County Attorney after.
Thank you. Glenn?
GLENN MICKENS: For the record, Glenn Mickens. I, too would like to
hear the County Attorney's opinion. I think the public is entitled... Mr. Abrew has
made a fairly strong case. I haven't heard anybody objecting to what he is saying
and I think a legal opinion from our County Attorney would be appropriate for the
public. I don't think it has to be held off a camera. Anyway, that is my opinion.
Thank you.
Chair Asing: Thank you. With that, County Attorney, do you
have any comments.
ALFRED CASTILLO, JR., COUNTY ATTORNEY: Good morning everyone.
Al Castillo, County Attorney. You know, this is highly unusual, but in the spirit of
open government, maybe I would like to clarify some misunderstanding that the
public may have regarding the application of the County Council rules which is via
resolution and the Hawaii Revised Statutes Chapter 92. I know the Garden Island
asked me for clarification, but let me do it right here. Basically, in interpreting the
rules of the County Council, the interpretation of the rules are basically... what you
do is you try to carry out the majority view and the resolution is basically a written
guideline. The resolution is actually subservient to the HRS and if you were to more
carefully review the rules, it does basically say in the posting, you are supposed to
look at Chapter 92 of the Hawaii Revised Statutes. Basically what I am saying is
the Hawaii Revised Statutes basically say that you need six (6) calendar days of
posting and if you count the days, the 30th... 30, 31, 1, 2, 3, 4, that is six (6) calendar
days, so basically, we are within the rules and it was posted properly.
Chair Asing: Thank you.
Mr. Chang: Thank you for the explanation.
Chair Asing: Go ahead. Come up.
Mr. Abrew: Aloha, Rob Abrew again for the record. I am not a
lawyer, but I disagree with the County Attorney. All HRS 92 says is the notice. The
notice needs to be done, not any of the items or anything on it. The State law and
OIP leaves it to the County to have rules and regulations for the Clerk accepting
and receiving documents. It is up to the Clerk. OIP, in 92, does not have anything
to do about timelines of receiving stuff. I clearly believe that this was posted
correctly, but information on this needs to be received by the 24th per County rules.
And the State allows the County to set timelines, dates when County Clerk receives
it... it is a County Clerk issue receiving these documents. You guys have decided
COUNCIL MEETING ~ - 33 - • August 5, 2009
that the County Clerk needs to receive these by the 24th and, yes, it is posted
correctly, I agree with that, but the OIP says nothing about the information in here.
You guys have made a rule to have it in by 4:30 two (2) weeks the Friday at 4:30.
You guys need to abide by the rule. The State cannot override that rule because
there is no State law that says that the communication needs to be in by six (6)
days. The notice does and if it changes, it needs to come here and be accepted by
two-thirds of the majority. That is my interpretation of it.
Chair-Asing: Thank you. Is there anyone else? Bruce?
BRUCE PLEAS: Bruce Pleas for the record. This is an example of
where the rules of the Council need to be gone over and looked at to bring in
compliance with HRS 92. The simple change of this would be 15(d)... to change the
4 p.m. on the Friday two (2) weeks preceding to six (6) days and then we get rid of
the problem that we have here of interpretation of State and County laws. Thank
you.
Chair Asing: Thank you. Is there anyone else? If not, I would
like to call the meeting back to order.
The meeting was called back to order, .and proceeded as follows:
Chair Asing: Oh, is there someone else?
There being no objections, the rules were suspended.
Chair Asing: I believe there are two (2) ladies there that wants to
testify. We are on 276.
SOPHRONIA NOELANI JOSSELIN: Aloha Chair Asing and Kauai County
Councilmembers. My name is Sophronia Noelani Josselin and I have a letter here
from Hui Na Makaiwa o Wailuanuiaho`ano written by Waldeen Palmeira. This
specific communication and document property adjustment agreement concerns Tax
Map Kay (4) 4-3-02-10 located on Papaloa Road, Wailua, Kauai. This specific action
is for the Council approval to secure ashared-use path property adjustment
agreement at the Lae Nani Condominium parcel. This is one of four (4) tax map
keys properties recently approved by Kauai County Council on 7/22/09 for the
purpose of developing ashared-use path on Papaloa Road. There are four (4) TMKs
involved in this project on Papaloa Road. For the record, three (3) of these are
4-3-2:2 (Kapa`a Sands), 4-3-2:10 (Lae Nani), 4-1-5:6 (Wailua Bay View)... if there
has been a violation of Hawaii Administrative Rules (HAR) 11-200-26 or other
State laws by either the County Council or the Planning Commission's approval of
the modification of SMA permit (U)-2008-1, shoreline setback variance SSV-2008-1
on July 14, 2009 to include these specific TMKs, this will be a matter to be decided
judicial. The fourth TMK that is part of the Papaloa Road route is (4) 4-6-14:portion
of 30, approved on July 22, 2009 by the Kauai County Council regarding the grant
COUNCIL MEETING - 34 - ~ August 5, 2009
of perpetual non-exclusive easement to the County of Kauai by the State of Hawaii
Board of Land & Natural Resources. This particular parcel is ceded lands and the
Office of Hawaiian Affairs requested that language in the easement for
management by the County will reflect that the lands are ceded. OHA letter dated
April 16, 2009. It is imperative that a supplemental environment assessment be
done to include...
Chair Asing: That is your three (3) minutes, but go ahead. You
have an additional three (3) minutes to finish up please.
Ms. Josselin: Thank you. It is imperative that a supplemental
environmental assessment be done to include a serious objective evaluation of all
primary and secondary impacts under natural and human environment. Serious
challenges are part of a negative record of the Lydgate to Kapa`a bike path. I am
personally grateful to the Papaloa Condominium Association for the protection of
historic Papaloa coastal and Kuku`i heiau area. Kauai County faced a possible
lawsuit in 2007 for negligent laws in the County of Kauai sponsored environmental
assessment for Wailua area of the bike path. Important critiques and details of
these flaws together with independent studies brought to light important facts
resulting in changes the paths preferred coastal path alignment off of the fragile
historic and culturally sensitive ecosystem of Papaloa. Mahalo nui loa to the
Papaloa Condominium Association for your aloha as stewards of Papaloa for all to
enjoy for generations to come. While this is a small portion of the entire proposed
path, this administrative action is just one example of a complex series of failures
by the County of Kauai and State of Hawaii to fully study and disclose the
intended or unintended cumulative impact of three (3) to four (4) related projects in
Wailua. These include the Lydgate to Kapa`a bike path on Wailua Beach, Kuhio
Highway. Kuhio Highway widening short term improvements, cane haul bridge
improvements, and the Coco Palms redevelopment... the area of affect of these
projects is in the same small geographical area which should have rightfully
triggered an environmental impact study (an EIS).
All four (4) projects have been coordinated to various degrees. The National
Environmental Policy Act (NEPA) has violated as the coordinating agencies
including the County Department of Public Works has failed to meet NEPA's
requirements to analyze cumulative impact at the earliest possible point in the
decision process. In our opinion, the County of Kauai and State of Hawaii have
violated the basis of the environmental protection laws in order to accomplish their
goals of developing Wailua because they have avoided critical aspects of this
process. They avoided truly engaging in federally mandated Section 106 process by
skewing and misusing the opinions of a few native Hawaiian organizations and
individuals.
Chair Asing: You know, that is the additional three (3) minutes.
Do you want to finish up please?
COUNCIL MEETING ~ - 35 - ~ ~ August 5, 2009
Ms. Josselin: It is a long letter and I feel that it is very important
and I will just read on until you...
Chair Asing: No, it is... you've had six (6) minutes already, so I
will give you just a little bit of time to finish up.
Ms. Josselin: Cut me off whenever you want. I just think it is
important for the record that all of this information...
Chair Asing: Well, if you are not going to help me help you, then
I am going to stop you.
Ms. Josselin: I understand.
Chair Asing: I mean ,you don't want me to do that, but I am
trying to help you by saying that you had six (6) minutes, I am giving you an
opportunity to finish up please.
Ms. Josselin: Thank you.
Chair Asing: Thank you.
Ms. Josselin: I just don't want to cut short on a letter that I feel is
very important.
Chair Asing: And I understand. Go ahead.
Ms. Josselin: Thank you. I appreciate it. The County of Kauai
and those who have been intimately responsible for this flawed and grossly
inadequate environmental assessment and preferred alignment avoided a cultural
impact assessment of Wailua. Because Wailua is fully documented in many, many
sources as a highly historic cultural and spiritual aina, this deceptive act is a great
disservice and disrespect to the native Hawaiian community... it... also, local and
malihini community members, make no mistake, it is a great disservice to the
people of Kauai and generations to come.
Chair Asing: Thank you. I appreciate it.
Ms. Josselin: Thank you very much.
SHARON GOODWIN: Good morning. Sharon Goodwin. I will continue
that letter for the benefit of the audience also. Let's see. Okay, as kanaka maoli,
Sophie, we know the importance of respecting a highly historic culturally important
and sacred area. Wailua is a highly historical and traditional cultural landscape of
great importance to native Hawaiians and all people. It is not threatened and, in
fact, endangered due to this bike project. Wailuanuiaho`ano means great and sacred
COUNCIL MEETING - 36 - ~ August 5, 2009
Wailua. It is the place that was deemed sacred before the first Polynesians arrived
here. It is the source of mana of life. Kanaka maole are not the only ones to
recognize this... many people come to Kauai solely to seek the strong spiritual
source. For example, the Hindu religion, the Hindu people built their sacred temple
on the sacred native Hawaiian heiau known by some historical records as
Pihanakalani (the fullness of heaven) on Kaholalele Road in Wailua Homesteads
where I grew up. This would be Waldeen where she grew up. Throngs of visitors
arrive there daily to visit the sacred and beautiful site that was deemed sacred
thousands of years before the arrival of the Hindu temple. It is one of many
literally hundreds of sacred and religious sites of Wailua Valley.
The gateway to great sacred Wailua is Wailua Beach traditionally called,
na one kapu o Alio, the kapu sands of Alio. A responsible cultural impact
assessment would have known and considered this prior to issuing a finding of no
significant impact. Instead, the collaborative nature of the various development
projects piggy-backed on cultural impact assessments for other projects in Wailua
and avoided a true focus of the sacred beach. You are denying the rights of native
Hawaiians and all people through your actions if you continue to approve the
placement of a plastic boardwalk on our sacred and kapu sands. It is the sands of
our Ali`i, the sands of hauola, place of peace and refuge. The County of Kauai and
the State of Hawaii need to formally recognize respect and honor, great sacred
Wailua rather than desecrate, disregard, and disrespect. Taking the high road
means a true cultural impact assessment, a true and objective analysis of the
impacts and the environment, and the culture of the people of Wailua and Kauai.
Taking the high road means acknowledging and understanding that your
actions would have devastating cultural, social, spiritual, and environmental
impacts to the last remaining natural beach on east Kauai.
Chair Asing: Excuse me, that was three (3) minutes, but
continue.
Ms. Goodwin: Thank you. A beach that is historic and is literally
and spiritually connected to the great sacred heiau of Wailua. It is the center of the
area of affect of the national register of historic heiau of Wailua. It is the place that
offers great joy, pride, and aloha to all who also show aloha through respect. This is
a place that also serves as a gathering place for many of our local youth who are
seen there daily on the sand playing volleyball, engaging in healthy activities,
including surfing, paddling, windsurfing, fishing. The path would literally displace
them and hamper or curtail the range of cultural and social activities there. What
kind of mitigation are you going to afford regarding the displacement of Kauai
youth, adults, and kupuna. Native Hawaiians honor this beach and are connected
to this beach in cultural, spiritual, and religious traditions that are also protected
by State law. Your actions must considered in terms of cultural continuity.
COUNCIL MEETING ~ - 37 - ~ Au st 5, 2009
We ask you to defer your approval of the item before you, so that you can lead
this County to take the high road and literally require that the coastal path be
moved to a less culturally and environmentally sensitive area in Wailua. You
should require and be in touch with our concerns regarding the flawed processes
and procedures that are evident in the environmental assessment. You should be
concerned with the social and cultural impacts and welfare of the people of Kauai
because moving the path is the right thing to do. It is pono. Doing what is right
will always prove to result in pono outcomes for everyone.
Finally, and most importantly, any project in Wailuanuiaho`ano will be held ,
to a high level of respect with regards to our iwi kupuna. It is time to truly honor
our kupuna who came before us. It is because of them that we are here today.
Hawaii Revised Statues 6E provides protections for unmarked burial sites. The
enforcement of which has been incredibly poor in the State of Hawaii. In light of
what is currently occurring at the naue in Ha`ena, and many other sites around the
island of Kauai to continue this blatant disregard of protecting our iwi kupuna is
offensive and disrespectful. We stand opposed to the State Historic Preservation
Division's recommendation of archaeological monitoring of this beach site or any
other site in Wailuanuiaho`ano. This will not occur in Wailua not on the sands and
grounds of our Kauai Ali`i who amongst our group and our community are direct...
we are direct descendents of. The County of Kauai and the State of Hawaii, not
private developments...
Chair Asing: That was your six (6) minutes, but go ahead and
finish up, no problem, finish up.
Ms. Goodwin: ...are the responsible parties. We, the kanaka
maoli, and we the people of Kauai will not allow this to happen. No other ethnic
group on this island would allow such desecration of their ancestors and we will not
either. We look forward to further meaningful dialogue and decisions that can result
in your actions being responsible and pono ones for the people of Wailua and all of
Kauai. We urge you to defer or deny this action, and make the right and pono
decisions for all of Kauai. E ku ana I ka `onipa`a i na one kapu o Alio i
Wailuanuiaho`ano. Mahalo a nui loa is `oukou a pau loa.
Chair Asing: Thank you.
Ms. Goodwin: Thank you.
Chair Asing: Is there anyone else? Glenn?
GLENN MICKENS: Thank you Kaipo. For the record, Glenn Mickens. I
just want to say that I think these young ladies passionate testimonies... Sophie's,
Waldeen's, have just pointed out one glaring fact that this path was mis-planned
from the get go. The farther we go into this thing and see what is going on here, the
more people come back opposed. We didn't do an EIS, we are going through a
COUNCIL MEETING - 38 - ~ August 5, 2009
parking lot,- a Safeway parking lot... a path go through a parking lot, the danger of
it. The cripple people that are going to be using that path and stuff. There were so
many things in so many areas you saw up in the houselots when it went up in the
houselots... all of a sudden, they said an EA was done. The people were advised,
community input... well, it wasn't when they finally got the people together, they
opposed it. They didn't want it up there. They told Mayor Baptiste... I sat there and
listened. We don't want the path going... so anyway, in the big picture if this thing
had been well planned, if it stopped going along the coast, it would have gone
inland, I think Bette Midler would have given her property rights to have the path
go through... I think it had a good chance, but the way it is at this stage of the game
and last time I talked to Pat Phung, he said, you know, the Federal government is
definitely running out of money. This is path is never going to from Nawiliwili up to
Anahola. It will never happen, but I just... I applaud these people who are now
coming forward for the Hawaiian moving on this thing, but, again, I am not anti
bike path, but I would like to have seen the bike path planned from the get go in a
major way, to look at the huge picture of it before we did it. Thank you.
Chair Asing: Thank you. Joe?
JOE ROSA: Good morning members of the Council. For the
record, Joe Rosa. This morning, there are a few things that I want to touch on. One
is, you know, I wonder where is the historical society on that Wailua Bridge, the
railroad bridge that is being taken away. To me, it has much significance of... to do
with history and that is the sugar industry. I bring this up, but I hope that Al don't
interfere with it because when we were with the State when the Kapule Highway
was made, the Hanama`ulu community saved the Wailua... I mean the Hanama`ulu
railroad bridge as a historical preservation. So why are they going to destroy
something of history. To me, that is history, you know, it wasn't the State or the
County that built that bridge, it was the plantations. They had to prepare the
Opaeka`a Bridge, but why not the Wailua Bridge? Okay, that is one thing that I
want to touch on it (inaudible) historical society. The second thing that I want to
bring up is the... how come that there is more... three (3) people in the Thomas
Noyes, Doug Haigh, and Mr. Tim Bynum pushing so hard for this thing here in an
area that has so much controversy right now. And I think Mr. Tim Bynum should
be relieve himself from it because he is on that Kamalani Playground Committee.
To me, it is a conflict that he is trying to get this bike path completed. Why, I do not
know. From the start, more so was Tim Bynum, Doug Haigh, and then afterwards
Mr. Noyes came in. To me, Tim Bynum shouldn't be on this committee pursuing
this matter because it is a conflict to me.
Chair Asing: Mr. Rosa, please address the item and not
personalities.
Mr. Rosa: And I asking why is it that they are pushing so
much for it, those three (3) people, and then the... also, by putting that pathway on
the beach shoreline there, you are taking way precious sand that the tourist need
COUNCIL MEETING ~ - 39 - ~ August 5, 2009
that has to do with the tourist is the beaches. At times, there is about 15 feet of
sand... something that... wall that the State put up there and you are going to put a
10 to 12 foot walk and take away all that sand and leave only three (3) feet for the
tourist or the people? Think about those things. That is precious sand, beach sand
that the tourist entity... industry depends on, sand, sandy beaches. So I leave you
with those things to think about. I might have been a little off course, but to make
it for you people to wake up and see that you don't need it right now, just leave that
place blank. As I said one time before, tell DOT move the new highway in the back,
then you could just use that, whatever they have there, the three (3) lanes... you
could use two (2) lanes and use that other ten (10) feet for the so-called bike path.
Think positive, think of the future, the State had plans to make a new highway and
that old Wailua Bridge is not a (inaudible)... Thank you.
Chair Asing: Thank you. Is there anyone else?
HIP GOODWIN: Good morning, Kip Goodwin.
Chair Asing: Good morning.
Ms. Kawahara: Good morning.
Mr. Goodwin: Compelling as it Sophie and Waldeen Palmeira's
testimony (written only)- about the suppression... sorry.
Mr. Furfaro: Maybe you should move the mike a little bit closer.
Mr. Goodwin: Thank you. I will start again. My name is Kip
Goodwin. Compelling as Sophie and Waldeen's testimony is about the suppression
of the spirituality of our host indigenous culture is it seems to not resonate with
some people, so I am going to take a different tact. Tourism as we think of it, sun,
surf, scenery has been an economic mainstay for decades, and we have seen success
with ecotourism, but the coming wave is cultural tourism. In many countries, the
world over high value of visitors want an authentic emergent in local indigenous
culture. In Hawaii, we may miss that wave because of ongoing marginalization of
the Hawaiian culture and community. In the September, October 2008 issue of
National Geographic Traveler magazine and the survey to determine favorite island
vacation destinations, Oahu placed near last 104 out of 116. The reasons given by
respondents were over developments and commercialization and trivialization of
the indigenous culture. By supporting this initiative to move the bike path off the
beach, you move to position the tourist industry to receive a high valued visitor and
more important that you do the right thing for our host culture. Thank you.
Chair Asing: Thank you. Is there anyone else? If not, I would
like to call the meeting back to order.
The meeting was called back to order, and proceeded as follows:
COUNCIL MEETING - 40 - ~ August 5, 2009
Chair Asing: Do we have a motion?
Mr. Kaneshiro: Yes.
Chair Asing: And a second.
Mr. Kaneshiro: Yes.
Chair Asing: Thank you. Any discussion? All those in favor say
aye.
The motion to approve LEGAL DOCUMENT: C 2009-276 was then put, and
unanimously carried.
Chair Asing: With that, can we have the next item please?
Mr. Nakamura: We are back on page 3 of the Council's agenda
Mr. Chair, communication C 2009-274.
C 2009-274 Communication (07/30/2009) from Council Chair Bill "Kaipo"
Asing, requesting agenda time to inform Councilmembers on recent changes made
in the following areas of Council procedures:
1) Councilmembers' access to the agenda.
2) Placement of public documents, (including meeting minutes) on the
County's website.
3) Timely circulation of Council documents; and
4) Access to information by the public and Councilmembers:
Mr. Chang moved to receive C 2009-274 for the record, seconded by Mr. Kaneshiro.
Chair Asing: With that, what I would do is I am going to turn it
over to Councilmember Furfaro and then I am going to make a short presentation.
Mr. Furfaro: So the Chairman has turned the floor over to me.
He is making a presentation. I will relocate across the way.
Chair Asing: Good morning everybody. Am I on? Let me just
explain the reason for my putting this on. The reason for my putting this on... let
me read it. The purpose of this update is to inform Councilmembers on the recent
changes made in the following areas of Council proceedings, and what I wanted to
do was more on the flow... cover more on the flow of information that we covered the
last time around in the slide presentation where I showed the flowchart on the mail
coming into the Council. With that, can we have the next slide.
This communication... let me just read it. This communication is the
document distribution policy. To follow up on discussions held at the July 22, 2009
COUNCIL MEETING ~ - 41 - ~ August 5, 2009
Council meeting on distribution of Council documents, please be advised of the
following policy. Copies on incoming Council documents will be placed in a binder
that will be on the Council's break room table. If you would like a copy of the
documents in the binder, you would ask that you request available staff to make a
copy for you. Documents over 30 days old will be removed from the binder. Also,
large documents, attachments, such as Finance Department monthly statements of
revenues and similar bulky documents are available for review upon request.
Copies of any confidential documents will also be placed in this circulation
binder, but are available for review upon request. Given recent guidelines from the
State Office of Information Practices (OIP) on distribution of documents received by
Vice-Chair Furfaro on June 23, 2009. Please be aware that we are currently in
discussion with the OIP on whether this practice is in line with our previous advice
and that the final outcome of this discussion may result in changes to our current
policy direction on document distribution. Please feel free to see me if you have any
questions. Now, the last paragraph here was a result all of our staff together with
Peter... we all sat down here and we had a conference call with the Office of
Information Practices and through those discussions, we came up with this method.
We have not finalized everything with the Office of Information Practices. I will tell
you that they were very favorable to talking to us. As a matter of fact, we asked
that the conference call be documented by a tape, so that is on tape also.
Mr. Furfaro: Excuse me Mr. Chair, may I just... in the audience,
please, if you have conversation, could you please take it outside just to show some
courteous. We understand your dialogue is important as well, but we are trying to
get the presentation from Chairman Asing. Thank you very much.
Chair Asing: Thank you. With that, can we have the next slide
please. You know, we went through this process the last time around and we found
that we were missing one area and that area is on the incoming mail, you will notice
that we also have a fax machine and the fax machine will generate mail also, so
we've added that in here just as a note that we have another source of mail
incoming from the fax machine. And, of course, that item will also be time-stamped
and logged at the counter. If you can turn to the next slide.
I believe we went really through all of this and I just want to take a couple of
things in here and I want to take this portion here on the non-agenda items. Now
this file here normally what the staff will do is they will take items here and
circulate them to the appropriate Councilmember, but this item here, let me cover
that a little bit as we go through. Why don't we just go through the whole thing.
Next slide.
We did cover all of this and there is really no change in here. There is just
one change that was made and that change is going to be... let's go to the next slide
and that is that portion there. What is going to happen is what we found was that I
remember my saying that all files are open to all Councilmembers and all
COUNCIL MEETING - 42 - ~ August 5, 2009
Councilmembers can view all the files provided the Councilmember does not
interfere with office operations. And what we found is that all of the mail that come
in and go into this agenda file are really originals and because they are. originals we
are a little concerned that if they are taken from this file even to make copies and
they are not replaced, then we will be losing an original document. So what we had
planned to do which is what we are, in fact, doing now is this entire agenda file has
been... we have made copies of this and it is here now. So what you will find is that
everything in the agenda file is in this file and this file here will be placed in the
back room for all of the Councilmembers. So it is... what it is, in essence, you are
really looking at this file, but we kind of wanted to keep this file in tact because
those are originals, but you will have copies of those in here.
With that said, I just have... do you want to go back again. One more thing.
You want to turn the light on please. This file here... you want to put that... the
incoming documents duplicated and placed in the binder in the Council break room,
so that is this file here. This will be placed in the break room so all
Councilmembers will have access to this. It will be similar to looking at the agenda
file because it is exactly what it is. Also, just for your information and to also let
you know that there is also the non-agenda file. Now the non-agenda file is this file
here and presently we have two (2) binders. This is one binder and I have another
binder there because this one is full and what is going to happen is we are going to
end up with three (3), four (4), maybe five (5) binders as we keep on going, so I will
be talking to staff and more than likely we will use the same rule, so to speak, as in
the incoming documents duplicated binder by saying that the documents that are
placed in here, will be in here for 30 days. After 30 days, they will be removed.
Now, you will note that in this binder here and it is quite interesting that... and I
don't blame Councilmembers because you have so much information that you have
to look at that I don't think it is unusual, but I want to show you, as an example.
Here is the non-agenda file. This one here and if I were to look at this file, I will
find, as an example, I will find dates of items being in here... this first one here that
I am looking at happens to be, you know, information from the Department of
Health Wastewater Branch, septic system, McBryde Sugar. On each of these items
that are placed in that file, we also place a Council route sheet which means that
each individual Councilmember when they read that document, they initial that
document, so that we know that that individual looked at the document.
Now I will tell you that this particular file here has been ongoing for the last
25 years at least and I need to tell you exactly what you saw in the flow chart is also
the same thing. It is ongoing and the one new one that we have now is actually this
one here, but everything that you see in the file has been ongoing for the past 25
years. Now, let me give you an example of how much documents you go through
and how much you don't go through. If I look at this file here, I will find, as an
example, April documents dated... if I go further back here and I will see March of
'09. This happens to be a State Land Use Commission notice of hearing with the
agenda and nobody signed it. And this is March of 2009. As I keep on going back, I
have February 13, 2009, nobody read that document too and I keep on going, I have
COUNCIL MEETING ~ - 43 - • August 5, 2009
January 8, 2009, and this one here is a very important report because it is a report
on claims from the County Attorney's Office. So we get quarterly reports from the
County Attorney's Office on claims, so it is important information, but because it is
not going to go on the agenda, it is put in the non-agenda item file and that is the
reason it is here. But if you look at this one here, back in January of 2009, this
claim's report, nobody read it too.
Now, when I made the statement that, you know, this has been ongoing for
like 25 years, if I go back here to the bottom one, I will find the route slip dated
11/25/08 and the route slip will show... is showing Mel Rapozo, Jay Furfaro, JoAnn,
Ron, Shay, and Tim, and we go back that far, and nobody read it. So I think what I
am trying to say is that staff does a lot of work for Councilmembers to get
information and they do their best to make the information available to you. It is
available in both areas. It is on the non-agenda file which is here... when this gets
full, it moves to another binder, and then you also have this file here which we just
started, so that is really all that I have. I just wanted to give you kind of a progress
report on what has been happening. With that, thank you.
Mr. Furfaro: Mr. Chair, I am going to turn the floor back to you.
Chair Asing: With that, Councilmembers, any questions?
Councilmember Bynum?
Mr. Bynum: I just want to thank you for the presentation and I
very much appreciate the changes that you have initiated. Thank you very much.
Just one comment about the non-agenda binder. I look at those documents
routinely, I don't sign the little slip because... and just as a... I don't think it is
necessary for the staff to put those little slips on each one, but I have routinely...
Chair Asing: Let me help you and explain the reason for it. Now,
the reason initialing the slip is that what happens is that the clerk will go through
the binder and because it will keep on building, the clerk will go in there, and as
soon as they see the slip filled, they will pull it. If the slip is not filled by and signed
of by all Councilmembers, they will leave it in, and that has been a major problem.
Major problem in that... can you imagine that docket that is that thick that our
clerk has to go in there and look at all the slips because it is two (2) or three (3)
Councilmembers have not read it, they will leave it in. So it was really a
tremendously maintenance problem, so I think it would be fair for us to say if we
leave it in for a month, I think that is a fair amount of time unless Councilmembers
feel that they want more than a month. The other file that we have, we put a one
month timeframe... within one month, then we will pull it, so any questions? Go
ahead Tim.
Mr. Bynum: Yes, thank you again for... and I concur that one
month is plenty time and, you know, I didn't know that slip had that purpose
because we haven't discussed it. But the... I often go into this file. A lot of it is
COUNCIL MEETING. - 44 - • August 5, 2009
routine, I don't read the entire document, I say okay, I know about that, but it also
has prompted to me to follow up, make copies of documents. So I appreciate very
much these changes and I agree with you that, you know, if routinely... just rotate
out of that file after 30 days, that would be easier, and that might preclude the staff
from meaning to put those little slips on there on each document.
Chair Asing: I think we will make that change. We will do a one
month time period on that binder also. That will save staff some time. In the past, I
know that they have taken that and really chased down Councilmembers to please
sign, so they can get the entire file down to a reasonable, manageable level. Any
other questions? Go ahead Councilmember Kawahara?
Ms. Kawahara: Thank you Chair Asing. I am really excited to see
the changes and the addition of the agenda binder, and I have been going through it
and it does make me feel as though I am getting all of my information that I might
need that would come up with any discussions with the constituent. I was
wondering if you saw any of my signatures in there because I have been looking at
it and one of the most interesting things are the ones that come from the County
Attorney and the claims, so... and I have just discovering now with what you said
that they come quarterly because I have been looking for the next one. It was just
the same one over and over again, so I know that it is going to come on a quarterly
basis, so thank you very much for addressing so many of the concerns that I had
about getting the information, and I very much appreciate it. Thank you.
Chair Asing: Thank you. Any other comments? Councilmember
Furfaro?
Mr. Furfaro: Chairman Asing, thank you for the presentation. I
can concur that many times that staff has chased me down, so they can file the
particulars, but I also want to point out sometimes the correspondence especially on
financial matters is also at the counter. If you rather not read the memorandum,
but actually look at the financial document or the report, it is actually available in
the IBM type print, financial sheets. Thank you Mr. Chair.
Chair Asing: Any further discussion? I believe we have a motion
and a second to... I am sorry, Bruce?
BRUCE PLEAS: Bruce Pleas for the record. On C 2009-274,
number 1, Councilmembers access to the agendas. I am glad to see that everything
is going forward and put out in the open. The only suggestion that I would have is
on the agenda file that... stuff (inaudible) automatically removed after 30 days, it
would stay on there until the item has finished on the floor, so that it is a reference,
so it is there to be had. Number 2, placement of public documents including
meeting minutes on the County website. I appreciate what has been put on, but as
somebody who comes here regularly, used to, have been kind of slumping off lately,
I would really appreciate to have the agenda, the communications, the resolutions,
COUNCIL MEETING • - 45 - • August 5, 2009
the legal documents, and the bills on the website, so I don't have to come in here on
a Monday, get a list, so I get them on Wednesday. Also too, that would enable me
not even to come in and I can do my work from my house in the evenings, and I
think that would really greatly bring some more comments in here. But it is hard to
make a comment when you don't have the bill in front of you. You don't have the
paper in front of you. Also at that point, that means it would become electronic and
you wouldn't have your pile of paper sitting on there... Councilmembers and the
public would get it electronically. Also too, I am aware that this was set up... your
electronic form was set up so that any Councilmember with the right password can
put documents onto the Council website. It is setup to do that and you have a
laser... you had back when this was setup two (2), four (4) years ago or so, you have
the laser one. I noticed you are shaking your head, but I have talked specifically to
the person who set it up and this was all available.
Mr. Furfaro: And I will shake my head some more.
Mr. Pleas: Okay, my testimony is not correct then.
Mr. Furfaro: Not four (4) years ago.
Mr. Pleas: Then let's hope that in the future it will be.
Mr. Furfaro: I do want to thank you for agreeing that we are
constantly making improvements.
Mr. Pleas: Oh yes, and it would be very nice to be able to have
like I said, the communications and everything on the websites, so I would be able
to pull them down and print them out and digest them at home. And that would
also... that would be number 3 and 4 which is the timely circulation of Council
documents to have them before the agenda and before the meeting, and access to
information by the public which, again, is having them on the website. I hope you...
in the future, you will expand, so what we have come to Council Services which is
very helpful will be available at the website, so we can take the burden off of them a
little bit, and have it in our homes. Thank you.
Chair Asing: Thank you. Tim?
Mr. Bynum: With this comment regarding the leaving them past
30 days, once they are on the agenda, they are going to be in our Council packet. So
the issue that the Chair has addressed that is the time period when they are
received and when they end up on the agenda packet. This solution deals with that
effectively. For now, they are hard copies in the binder, you know, and someday we
may evolve to where those are scanned in and put in folders, but, you know, I am
just appreciative. I will take the document any way that I can get it and so, you
know, I just wanted to comment. I think from my discussions with the Clerk that
they have begun posting documents on the web, that is great. I believe that we will
COUNCIL MEETING. - 46 - • August 5, 2009
see that emerge and additional documents will be posted in the future as they
acclimate to this. Your comments that... and in the long run, it will save our staff
and the public a lot o£ because I know you come from Kekaha just to get those
documents sometimes, so it will even take cars off the road huh? So... but I wanted
to say that I think the solution that the Chair has come up with works.
Chair Asing: Thank you. Is there anyone else? If not, I would like
to call the meeting back to order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Any further discussion? If not, all those in favor
say aye?
The motion to receive C 2009-274 for the record was then put, and unanimously
carried.
Mr. Nakamura: Next matters Mr. Chair are resolutions. The first
resolution on the bottom of page 3 is Resolution No. 2009-48.
RESOLUTIONS:
Resolution No. 2009-48, RESOLUTION TO ESTABLISH A SPECIAL
ADVISORY COMMITTEE TO REVIEW AND RECOMMEND AMENDMENTS TO
THE RULES OF THE COUNTY COUNCIL OF THE COUNTY OF KAUAI:
Mr. Kaneshiro moved to approve Resolution No. 2009-48, seconded by Mr. Chang.
Chair Asing: Any discussion?
Mr. Bynum: Moved to approve.
Chair Asing: We have a motion and a second. Discussion?
Mr. Kaneshiro: Yea, I mean, you showed through your...
Chair Asing: Hang on Daryl.
Mr. Kaneshiro: Oh, I thought you told me discussion.
Chair Asing: We have the discussion now. Go ahead Tim.
Mr. Kaneshiro: I am ready.
Mr. Bynum: We have a resolution proposed by two (2)
Councilmembers. Ihave an amendment and we are just going to receive it? I don't...
in this case, it means kill the proposal without any discussion.
COUNCIL MEETING • - 47 - ~ August 5, 2009
Mr. Kaneshiro: No, he said discussion.
Chair Asing: Discussion is open Tim. '
Mr. Kaneshiro: He said discussion is open.
Mr. Bynum: ~ Okay, thank you very much. I appreciate that
Councilmember Furfaro and Chang have put forward this idea that is called for in
our Council rules to setup ad hoc committees. I think the events over the last few
weeks and days and months have demonstrated that a review of our Council rules
would be appropriate. During our inaugural meeting, several community members
got up, some of whom are present today was concerned about specific rules, and
asking for there to be an examination of that. I proposed several rule changes in
the past that haven't been able to be discussed and I think it is an outstanding idea
to bring in some fresh eyes and to have a diverse committee to look and offer
recommendations. The individuals that were recommended by Councilmember
Furfaro and Chang are outstanding individuals that have very appropriate things
to share. Councilmember Kawahara and I have an amendment to expand the
committee a little bit to bring in more diversity and I think it is a proposal that was
well intended, and I totally support, and I would like to see it come to a vote on this
floor.
Chair Asing: Any further discussion? Councilmember Furfaro?
Mr. Furfaro: Yes, thank you. I do want to say first and foremost
and especially to my colleagues across the table that this idea to have an ad hoc
committee, a small one, made up with group that has experience with the rules,
experience with the law, experience with the process for Robert's Rules of Order, the
parliamentary procedures is something that I want to remind everybody that I
indicated that I would at least introduce back on inaugural day. I do believe that
the intent, contrary to some of the criticism that I have gotten was never intended
to prolong, delay, or, in fact, cloud over the intent of other issues that are before the
Council. I just want to reiterate from the inaugural ceremony. I said this is
something I wanted to do. Subsequently, when looking for a parliamentarian,
looking for someone who had experience leading the Council and also someone who
was a member of the bar, a retired Judge, I have to say that I was very appreciative
of their willingness to help. I put a 90 day limit on the resolution along with
Mr. Chang. That, again, is based on the fact of doing a review of the rules quickly
and focused. It was always the intention of perhaps having this volunteer group
step forward and add value for our community needs. It certainly was understood
and that support for any suggested changes would require staff support. The staff in
recent weeks has absolutely done an outstanding job in shifting gears to address
some of the portions of Chairman Asing's presentation. I am gratified to hear that
there are other Councilmembers that look at this and say that we are making
improvements. It is for the benefit of the body and that is really important for us to
COUNCIL MEETING. - 48 - • August 5, 2009
understand it. This Council is a body made up of seven (7) individuals who are
quite frankly, I am confident, have the intelligence and a broad array of skills to
effectively make changes where necessary. I still believe that. It is about the body.
The image of the body, but I still have to fulfill what I said at the time of the
inaugural that I would introduce a resolution and I want to compliment Councilman
Chang for recognizing the need to perhaps have a small ad hoc committee and,
again, I want to reinforce this was never about shifting our responsibilities to a
body because we are forbidden to do that. The ultimate decisions have to be part of
this body. We are a body that will be the masters of our own destiny and I wanted to
thank Mr. Chang for doing that. During this process, it had been pointed out to me
that perhaps the group was too small, but the smallness of the group was based on
the fact that we wanted to be expedient. I also was in need of looking for at least
two (2) more other individuals to bring a little bit more diversity to the group, but at
the same time, staying in the factor of an odd number when they make their
recommendation would prevent any, perhaps, ties on any recommendations that
they would put in front of the group. So I too have an amendment and I have
identified an amendment with Diane Zachary from the Kauai Planning and Action
Alliance. Diane is deeply familiar with County process, very much in tuned to
monitoring and measuring the types of things that we said that we would
accomplish in our General Plan and, therefore, I think she makes an ideal
candidate. I also have great respect for Dr. Neil Clendennin who has on his own has
been involved with the Planning Department, Economic Development, and he too is
deeply familiar with the existing challenges within the County of Kauai. So I want
to support this original resolution and I too would like to perhaps make an
amendment to add these two (2) individuals. But it is extremely important for me.
You know, we sat here today and we have people of the public that don't necessarily
understand the moving parts of the rules. You know, and as we go forward, no
matter, you know, which avenue we take, there are people that have opinions and
then there are people that have counter opinions, but the idea was to have a group
review this and make some recommendations, not to implement any changes. So I
would still like my joint resolution to be considered and I think it would be only fair
to give Mr. Chang some time to talk about as things have evolved the last few
weeks, how he is feeling about it. Thank you Mr. Chair.
Chair Asing: Thank you. Any other comments? Councilmember
Kaneshiro.
Mr. Kaneshiro: Thank you Mr. Chair. I expressed my views when
this first came up in regards to forming an advisory committee and I personally feel
that, you know, if you look at the Charter and the Charter when it refers to that
section, specifically refers to that section 3.07b. The Council shall adopt rules as it
may be deemed necessary for the organization of committees and the transaction of
its business. This is what we are talking about. We are talking about transaction of
Council business and to me, I feel that the Councilmembers would be the
appropriate members to be able to make those rules and adopt such rules, so we can
transact business is a real, you know, formal matter in a matter that we need to
COUNCIL MEETING • - 49 - ~ August 5, 2009
consider staff time, there is staff time also involved, and, you know, a lot of the
issues that are involved. So, for me, my recommendation would be take any of the
Councilmembers that we have here, two (2) of them because the Sunshine law
prohibits us to have three (3), have them sit down, make some recommendations,
and let's look at them rather than having an outside advisory committee do it. You
know, my feeling is as we went through this dialogue last week, we heard
Councilmember... former Councilmember Kouchi name came up which, you know,
in all respect, I know he knows a lot about office procedures. We had former
Councilmember Yukimura's name come up also, so I am here thinking and it... I am
thinking to myself that we have those kinds of people on the Council right now. We
have people that have had experience working with staff, had experience working
with, you know, the Administration and be able to come up with procedures that I
think we can achieve the same results rather than going out with an advisory
committee. And just candidly I put it like this. Maybe several years from now I
may not be on the Council and if you have an advisory committee, they will say, you
know what, Councilmember Kaneshiro, former Councilmember Kaneshiro might be
a good member to be on this advisory council, so, you know, I am thinking to myself
why don't we just do it. We here as the members and the body and appoint two (2)
people or whoever we want, you know, go ahead and make a choice... Mr. Bynum,
Mr. Furfaro, Mr. Kawakami, or whoever. Look at it, you know, look at some of the
rules and come up with a suggestion because since... if I look at it, you know, since
1969 when this Charter was adopted until today, we haven't had much of a problem
in how, you know, we have been conducting our business, so I want to just leave it
with that, and that is the reason why I called for receiving this resolution that is
before us today.
Chair Asing: Thank you. Councilmember Kawakami?
Mr. Kawakami: Yea, I think that is a good alternative, but I will
just take it a step further and ask why we would even need to have an ad hoc
committee and why as individuals, as elected officials... the rules are not that hard
to understand. They are written and very easily to understand. I think the point of
not taking a comprehensive look over this thing for what 20 years, I don't know
about you guys, but I mean this is like the first thing, yea, that you read. If you get
on a board, you ask to see the bylaws and the rules because you have to know the
rules of the game to even get off the bench and get involved. So, by right, this is the
first thing that we should be looking at and it is written clearly. I don't think we
need an~ad hoc committee. I mean these individuals put forth all of them with the
amendments are all very smart individuals that would bring, you know, great
value, but the fact of the matter is, are we over reacting because it is not that hard
to understand the rules and if there are any rules that need to be changed, eh,
anyone of us can put it on the agenda to bring it up for discussion and vote on it. I
see Councilmember Bynum sort of disagreeing so I will stop there, and let you have
a go at it.
COUNCIL MEETING - 50 - • August 5, 2009
Mr. Bynum: No, I am glad we are having this discussion. I
sought this discussion for over two (2) years, so I would like to address this. I mean
we had several members of the public question several rules at the inaugural. We
had a member of the public question a rule today. I proposed I think three (3)
different rule changes that have never made the agenda and have never been
discussed, so I reacted when you said that any Councilmember can put something
on the agenda. That is where this started. I haven't been able to put things on the
agenda and, you know, the rules are written clear. I thought some of those rules
were clear, but they have been interpreted differently and I couldn't even get a
discussion about how we interpret them. You know, I had to go to extraordinary
lengths starting June 3 to get a discussion about this. Now I think it is a great idea
to bring a diverse group under an umbrella and take a look at the rules and make
recommendations because we are responsible, but it is... I don't believe in all due
respect that it has been accurate that we could have that discussion. Now if I am
hearing a commitment from all Councilmembers that we will engage in that process
even though it could be six (6) or seven (7) or eight (8) rules... you know, I came onto
a Council that has no policies and procedures, no dialogue, no staff meetings... I
mean I am passionate about this issue because I want to see a proper process, right?
And I think we are headed in that direction and I believe this committee would be a
real benefit in terms of bringing that process. It is something that is anticipated in
our rules and I thought that we would have a vote today. We would discuss how the
make up would be because I know... I believe Councilmember Kawahara and I are
in favor of this committee and it was introduced by two (2) members. You know,. I
was counting to four (4) until a few minutes ago, so I thought the thing would be
moved to approve, we would discuss the parameters of the committee, and we would
find out... but, you know, we are going through proper process and we are going to
have a vote to receive. You know, the motion was made and seconded and we are
having discussion, but, you know, I will ask my colleagues around the table, is there
a commitment that we will have this discussion. If it is not going to go to this
committee where I think it should go, that is my opinion. Are we going to have this
discussion? Are we going to be able to entertain a discussion about our process and
our rules? I don't know that because it hasn't been the case.
Chair Asing: Let me just say this, first, before you answer that.
We are having that discussion now.
Mr. Kawakami: Exactly, okay.
Mr. Bynum: We are.
Chair Asing: Well, Councilmember Bynum, you just said that you
don't have the opportunity to discuss. The opportunity is right now. We are, in fact,
exchanging thoughts and ideas. We are having that discussion... you are saying
that you are not able to have. You have it now and I don't understand when you
make these statements that I don't have an opportunity. You have the opportunity
now and you are saying, but I don't have the opportunity. It just puzzles me.
COUNCIL MEETING • - 51 - • August 5, 2009
Mr. Bynum: What I said Mr. Chair was I haven't had the
opportunity and that is true.
Chair Asing: Okay. With that, Councilmember Kawakami?
Mr. Kawakami: You know, just to... I mean, I don't know. The
rules... there is a section in the rules that might be unclear, but if it is clear or
unclear, to me, it is up to the individual Councilmember to do some homework and
find out, but, hey, if you can't get something on the agenda through the Chair, there
is clearly a mechanism to get something on the agenda through the body, right?
Tvvo-thirds vote, you can pop it up at the beginning of the agenda for an amendment
to the agenda, you take the vote on it, okay, and that holds every Councilmember
accountable. It puts their feet to the fire on what their beliefs are as far as a voice
and a minority. And for the record, I believe that the minority should have a voice.
Okay, but there is clearly a mechanism in our rules, two-thirds vote, yea, we might
not be able to discuss it at this meeting, but clearly, you defer it, and it gets on the
Council agenda at the next meeting.
Mr. Bynum: What happened when I made the motion on June 3
Councilmember?
Mr. Kawakami: On June 3, that was a Sunshine law... you wanted
to discuss it that day. Did you defer it? Did you make a motion to defer it to the
following Council meeting?
Mr. Bynum: May I answer?
Mr. Kawakami: Sure.
Mr. Bynum: I wanted to, but I wasn't even allowed to...
Mr. Kawakami: You didn't.
Mr. Bynum: No, I asked the County Attorney, can I make this
motion for a subsequent agenda and I never got the answer. You know, that is a
public record, you can read it, you can read the minutes.
Mr. Kawakami: Okay.
Mr. Bynum: Okay, I made the motion, a Sunshine law question
came up, right? Which we should have been able to discuss which we weren't
allowed to discuss. We weren't allowed to discuss the motion or the move into
executive session or anything.
COUNCIL MEETING. - 52 - • August 5, 2009
Mr. Kawakami: Of course because you are supposed to just defer it
by right. It might not happen today, but it will happen in two (2) weeks.
Mr. Bynum: Councilmember Kawakami, are you questioning
that there... that it was difficult for me to get these resolutions on...
Mr. Kawakami: I am not questioning if it was difficult. I am just
saying that, hey, there is a mechanism in the rules for you to go through the body
for any reason the Chair is not working fast enough for you or whatever it is, there
is a mechanism for you to go through your six (6) colleagues to get it on the agenda.
Mr. Bynum: It is very clear to me that discussion of proposals is
supposed to happen here on the floor and not go to the six (6) colleagues.
Mr. Kawakami: It is. When you bring it on the Council table, it goes
to your six (6) colleagues. All you have to do is what you did. How do you think you
got the last item on the agenda? You didn't go through the Chair, you went through
the body and we all voted to approve it and if you want a commitment, here is a
commitment. I don't care how crazy or what any of the proposals that come forward,
if you are going to amend something on the agenda, I will automatically vote to
approve it because I am not afraid to vote something up or down.
Mr. Bynum: Councilmember Kawakami, we were never allowed
the opportunity to have this discussion. I sought every method that I knew of and I
got advice from OIP that I could make this motion and as soon as I made the
motion, it was like, no, you can't do that because of the Sunshine law. And so we
had to do this created nuance to make a motion to put a discussion on a subsequent
agenda, right? I mean we, you know, I think the law... I think the rules are clear.
The rule says, any Councilmember can introduce any bill or resolution, but I
haven't been able to do that. That is a documented fact, right?
Chair Asing: Councilmember...
Mr. Kawakami: Have you ever tried to apply rule 15d prior to the
last meeting where you got the item on the agenda? Have you ever tried to apply
this rule... this rule didn't just pop up in our term. I mean from what I understand,
this rule has been in place for a very long time, so it is a... I am just saying that
there is a mechanism to get something on the agenda, you don't have to go through
the Chair. Is that not true?
Mr. Bynum: No, I don't know that that is true at all. I know
that the... it says that any member can introduce any bill or resolution and that the
way we do that, it is through memo to the Chair which I did repeatedly. I know
when I tried to make a motion to place something on the agenda, then the Sunshine
violation was... the Sunshine concern came up, so that is why we are having this
discussion. Let's find out what those mechanisms are. I have another agenda item
today to clarify that rule which to me was as clear as a bell, but I wasn't able to
COUNCIL MEETING • - 53 - • August 5, 2009
have this discussion. We have never had a policy discussion in the 2 1/2 years that I
have been on Council. I requested in writing that we have... that we have staff
meetings to talk about policies and processes. You can examine the Council rules
and the policies and processes of every other Council in this State and see that it is
an emerging ongoing thing, so maybe we have begun that today. I think the... you
know, I mean the issue before us is this committee and apparently we will have a
vote. You know, and I am thrilled that this communication is happening today.
What I am saying is and I think it is very accurate. I haven't had that opportunity
until we went to extraordinary measures. And, you know, I think it is going to have
a positive outcome.
Chair Asing: Councilmember Chang?
Mr. Chang: I have a lot to say, however, I heard some
discussion about taking a break, but before we take a break for lunch, if that is
what I was hearing.
Chair Asing: Why don't we finish this.
Mr. Chang: That is fine. I thought if we were going to take a
break, it might be a good opportunity that if we do... during the break, we had an
opportunity to review the minutes of July 3, I do believe that Councilmember
Furfaro did ask for a deferral and that was an opportunity to have a second from
one or the other and my minds serves me correctly because when I sat here, I was
shocked that there was no second to the deferral. Consequently, that is why I
started to work on what we are going to be talking about why I tried to introduce
what I did on the floor, so we could be of assistance to get this on for the discussion,
and consequently we had a lot of progress... evidence by the presentation today and
everything else that we are working on. When we get to that part of the agenda
when you are ready to, you know, wanting to introduce something to the agenda
item, I am going to support you 100% that we can put something on. But, you
know, I don't know... if we are going to keep going on, I don't want to speak out of
my turn, but I do want to say that I will look at that and we will research it, so
when we come back, there was clearly a deferral by Councilmember Furfaro to get it
seconded, so we could have put it... we could have had it on the itinerary. As I
mentioned, I was shocked... consequently, that is why I went into what I thought
was right or just anyway of getting this on the floor for discussion. And it was not
a, you know, it wasn't a political maneuver, it wasn't a distraction or delayed tactic,
it was really about being able to put it on the floor and to discuss it. I believe that...
from that July 22 meeting as the Chair had promised, he was going to do this, that,
that, that, that. Come Thursday, the staff was working, come Friday, the staff was
working, I was here, and on Monday, everything was already implemented as
promised. And for myself, having co-authored an ad hoc committee, again, I will
say... I was thrilled to see Mr. Tacbian, Mr. Kouchi, Judge Masuoka, and I thought
that that was a very, very intelligent, smart body that I didn't believe needed 90
days or I didn't believe needed 60 days, I didn't believe needed 45 days. I thought
COUNCIL MEETING. - 54 - • August 5, 2009
that we could get the answers as quick as possible and it, again, it wasn't a delayed
tactic, but look how much and look how forward we have gotten without the help of
an ad hoc committee and I really concur with Councilmember Kawakami because if
any or one rule is not cleared, we have a lot of opportunity to go ask our analyst, can
we interpret this, this rule, and I had asked if we are not familiar with the rule, can
we put this on the floor for discussion, and my answer was yes.
So I do believe that as a body, you know, my opinion... having introduced an
ad hoc committee, the purpose of us getting as far as we have, I am glad that that
was one way. There might have been several that we could get so much work
already done and so much progress with our staff... you know, I have to tell you, _
you know, when I go out in the community, I have to say on a weekly basis that I
see and talk to hundreds of people. I probably see thousands, but I talk to people
about so many other pressing issues that goes on within this community. I mean,
you know, as the Economic Chair, we are probably in the worst doldrums as we are
as far as economy is concerned, and people out there, you know, we have gone so
far, we are going in this past two (2) weeks farther than you have been on the
Council for 2 1/a years that there are other issues out there within the community
that this community was really concerned about. I am for one, you know, I am
ready to move on. I think the goals were accomplished with what we wanted to do
and I am not making a 360. When we sat here on the evening of July 22 and when
Councilmember Kaneshiro expressed his concerns, I agreed with him right there. I
said, look, I am ready to drop this, however, let's keep it on, let's make sure that
everything that the Council Chair said he was going to do, he was going to do. I
monitored it Thursday, the following day, I monitored it on Friday, the following
day, and I came "back on Monday and everything... most of the things were
implemented, and to repeat, if you want to get something on the agenda, I will
support you to get things on the agenda.
Chair Asng: Go ahead.
Mr. Bynum: Thank you very much for your comments.
Regarding the June 3 meeting, I have read those transcripts very thoroughly. If I
would have understand at the time what Councilmember Furfaro intent was in
terms of deferral. I would have supported it, but we weren't allowed to discuss it
and you can look at that. We weren't allowed to discuss this motion, we weren't
allowed to discuss pretty much anything. All of us were repeatedly cut off saying
that any discussion, not only of the proposal, but of the move for executive session
or for any of this. We weren't allowed to have that discussion, so to answer your
question... if I would have understood his intent at the time, I would have
supported it.
Mr. Furfaro: If I make a motion to defer and it gets second, that
ends the conversation and then we could have discussed having it come back in two
(2) weeks. That is parliamentary procedure.
COUNCIL MEETING • - 55 - • August 5, 2009
Mr. Bynum: Right, so anybody wants to dissect that meeting,
they can. But, you know, the other thing you decide about and we have a huge
agenda... we have a huge amount of work today, have serious and complex issues
coming before us, and that is one of the reasons that this committee is a good idea.
Let them look at these issues that have been brought up by the public, that have
been brought up Councilmembers and do a comprehensive look... do that work
where are not using our time, come back in one package, and we deal with it all at
once. I think it is a pretty efficient way to go. What I am saying though is that we
have to deal with all of these critical and important issues, right? But we have to
have appropriate process. We have to have access to information and the public has
to have access to information because we serve them. It is their... that is the whole
point of them being participants in the process. It is very clear...
Chair Asing: Councilmember Bynum, you know, I am not going
to stop you, but... isn't that what we are doing today?
Mr. Bynum: Now? ,
Chair Asing: Not now. What do you mean now? I just made a
presentation to show you what is happening and I just don't understand your
comments. You know, as far as I am concerned, shall I do the presentation that I
did on July 22 again? What did I say at that time? The Council Chair does not,
does not have absolute control, does not. And I went onto to explain how I get
things on the agenda that Councilmembers want to get on. As far as I am
concerned, I addressed all those problems and I thought you understood .them. And
it makes it even more difficult for me to understand. As far as I am concerned, isn't
the Council moving... we have always moved. We work, we do our job, everything is
fine... I don't know this manufactured problems. Where did it come from? It is
difficult for me to understand. Go ahead Councilmember Kawahara.
Ms. Kawahara: You had the floor.
Mr. Bynum: Mr. Chair, I don't want to keep going over the
nuance. I don't want to keep arguing. I want to move forward, I see that movement
happening, but these are not manufactured problems. I mean I am just going to
take exception with that. I think that anybody that has followed this process closely
knows that that is accurate and we are making movement, we are discussing
whether this committee is part of that movement, and I am just saying that I have
changes to the rules that I would like to have discussed. I have sent them to you in
memos. You know what some of them are, so if we want to use Council time to do
that, I think those things are important. They warrant our time. I think a way to
short... you know, to address it more comprehensively and quickly is this excellent
proposal from Councilmember Chang and Furfaro. You know, I am embracing it.
So that is the issue that is before us on the agenda and I appreciate the assurances
from my colleagues that things that are important to the community that I choose
COUNCIL MEETING. - 56 - • August 5, 2009
to place here on the agenda will get discussed, but that is not the way it has been.
That is the way that is going to be and I hear that, and I am thrilled.
Chair Asing: Councilmember Kawahara?
Ms. Kawahara: Yes, thank you Chair Asing. Now we are talking
about the great changes that are being made now would... that were actually
brought up to you in memos and throughout the six (6) months that I have been
here. Would these changes have... I mean the memos weren't responded to, so my
question is whether or not any of these changes and my fellow Councilmembers,
with these changes had taken place without us having to go through this process.
Chair Asing: I am not sure what changes you are making
reference to. I believe that we had...
Ms. Kawahara: The three (3) issues that we... that you (inaudible)
just addressed here that was sent to you in memos over the six (6) months that we
never got a reply, so we need to do it this way. I was wondering if we hadn't had
done that based on the...
Chair Asing: I don't recall any memo from you.
Ms. Kawahara: Okay.
Chair Asing: I don't recall any memo from you.
Ms. Kawahara: Okay.
Chair Asing: With that...
Ms. Kawahara: I am not done yet.
Mr. Kawakami: Oh.
Ms. Kawahara: Thank you. If I could still keep the floor, I
appreciate it. Thank you.
Chair Asing: Go ahead.
Ms. Kawahara: Appreciate it, thank you. Regarding whether or not
the advisory committee is appropriate, I would just say that we were here until
1:30 a.m. that night and that means that there are a lot of issues going on. I, as you
all know probably, I was one of the people that was really leery about having an
advisory committee. I did have a worry that it was going to be a distraction and that
it was going to be a delay, but going by what we experienced and what people
experienced and saw on the t.v., there seems to be an impasse here that I believe
•
COUNCIL MEETING - 57 - August 5, 2009
makes us incapable of doing these changes to any of our rules here as an overall
rule review. That is my belief and I like Daryl had mentioned believed that we
would, as a Council, be able to address it, but there have been things that have been
coming up that have nothing to do and no place to be on the floor when we discuss
things like this. So when we go out of bounds or... and things that... emotions and
personalities come up, that, to me, is an impasse, and that means we need help, and
that is what I believe this advisory committee would be for. In response to
Mr. Kawakami, I respect your view that rule number 15 would allow us to get
everything and anything we want on the agenda if the Chair would never let it on.
It has been my experience that we had to do a lot of maneuvering to get something
on the agenda, so I know that you have been able to get stuff on the agenda, so the
experience maybe has not been yours. But my experience and Councilmember
Bynum's experience has been... it has been difficult and that is the only reason why
we are bringing it up and my one last point is that, again, I think it is... the
committee would be a good thing because it would... it doesn't take away our
responsibility to do our work, but I do believe things have not gone as smoothly as
we would have hoped to... for them to have gone in dealing with some of these
fundamental issues and I would welcome fresh eyes on it and then we could come
back and we would make our decisions on it. But part of what I believe is so
important about the democracy is that we get input from people across the island on
any of these issues. I don't feel like we are above it, that we don't need to have input
from people on our own rules because I believe that at 1:30 in the morning, it
displays without a doubt that there are issues here that we needed to deal with and
that it was very difficult to do. I am going to reserve more time for later statements
as people respond, but that is my statement for now. Thank you.
Chair Asing: Thank you. Any further discussion? Go ahead
Councilmember Furfaro.
Mr. Furfaro: Thank you. I view myself as an individual that
tries to reach out to everyone in the body here and I just want to reiterate that if we
come to a conclusion that maybe two (2) of us are reviewing the rules and so forth, I
have no problem accepting that responsibility. But, you know, I think the... what
we are trying to address here is some problems with the process, but I want to
caution all of us as a group that, you know, who gets what, and what kinds of
comments we do in the media and, you know, it starts to bother me because it
becomes something about trust, okay. And some of my colleagues here said some
very good things today. I mean Mr. Kawakami pointed to rule 15, Mr. Chang, I
mean I am not going to change my position because I have said that I want to have
a review of the rules. I said that from inaugural, okay. But, you know, I find it very
difficult to defend myself when people raise questions, people who don't necessarily
understand the inter-workings as expressed today by my Chairman Asing, and it
kind of starts falling on trust and when we use words about suspicious of people's
motives to introduce a resolution and so forth.
COUNCIL MEETING. - 58 - • August 5, 2009
Ms. Kawahara: Point of personal privilege. When you are talking
about people and trust, are you addressing any of the Councilmembers when you
say that or are you talking about the public having to deal with them?
Mr. Furfaro: Well, I think all of us here need to be... take
responsibility for what we've said in the press and so forth, okay. I do not care to
answer your question if I am directing it at anybody. I am saying, right now, as the
third senior member of the... yea, and I have only been on the Council four (4)
terms, this is my fourth term, but I am saying that I want to review the problems
associated with the process. It is not healthy for this body when we use other
vehicles to express concerns about trust and suspicions, and so forth. And let me
tell you, I've got many a-mails at my home because I publicize my home e-mail. I
publicize my cell phone, but I want to be the facilitator even to the point that I hope
that this Council doesn't have to get to a point that we are going to look for some
outside facilitation and mediation. We shouldn't have to do that. We have smart,
intelligent people at this table that want to do the right thing for the right reason. I
know where I am going to vote on the motion that was just made, alright? I also
know that as a diabetic, I am getting a sugar call here, so, you know, I would like to
call for the vote.
Chair Asing: Any further discussion?
Ms. Kawahara: So are we...
Mr. Bynum: I think we should break for lunch.
Chair Asing: Go ahead, come up Bruce. Let's finish this up.
Mr. Furfaro: If you folks don't mind, I am going to go look for
some sugar.
Chair Asing: Okay.
BRUCE PLEAS: Bruce Pleas for the record. The motion on the floor
is to receive. I ask the Councilmembers to vote "no" on that. I am in favor of an ad
hoc committee. I think the Council (inaudible)... the Council does have more
important work to do especially at the beginning of this process to go through the
rules. Ad hoc committee could do that and I think 90 days... I mean, matter of fact,
they could probably get it done in 30 days. You could decrease that, so you get some
work out of everybody. And what it could do is review what the process is, provide
insides on current process and provide possible changes to the appropriate Council
Committee. I was one of the ones that came at the inaugural and had changes. As
of right now, rule 14, we have no message from the Mayor on the agenda and that is
part of the rules, so these are somebody that is familiar with what goes on here and
everything... could be insightful for this ad hoc committee. Also too, I did send an
e-mail to two (2) Councilmembers and now I am putting it to all Councilmembers. I
COUNCIL MEETING ~ - 59 - - ~ August 5, 2009
would volunteer for this. I feel I may be qualified for it since I have worked with the
Council for quite a few years. I have seen the process go through and I would be a
third party that has no conflicts of interest down the line or in there because I don't
receive money from the County as some people do (inaudible). And I think I could
be a good third eye on this that would provide some input and then it would be up to
the group of... I would say five (5) to seven (7) people in the ad hoc committee to
take the input from everybody, and figure out which goes forward by majority rule.
And, also, to this ad hoc committee should be meeting here and it should be open to
the public. It should not be by itself. It should be full on open to the public, so it
gets input from the public and I know in these budget constraints that it would be
hard to have it on Ho`ike, but I would ask Ho`ike to donate time to cover this
important part of Council business that is not really Council business, but an ad hoc
committee. Thank you.
Mr. Kaneshiro: One question.
Chair Asing: Yea, go ahead.
Mr. Kaneshiro: Bruce, do you know of any boards that... I am just
talking about different boards or companies that have... or even the KIUC that has
an ad hoc committee that would help them to formulate their committees and rules
and transactions to business.
Mr. Pleas: Off the top of my head, no, I couldn't state one.
Mr. Kaneshiro: Thank you.
Ms. Kawahara: Do they have ad hoc committees to look into issues
that they might need study?
Mr. Pleas: There could be, but I am not familiar, but I would
assume that in the government what you have is subcommittees that do the
primarily work for the main committees.
Chair Asing: Thank you Bruce. Glenn?
GLENN MICKENS: Thank you Kaipo for extending the time period. I
see that it is way past lunch time. Up front, I would say that I would support what
the members on the Council has said to do this job in-house. I don't think you need
an ad hoc committee, but that is my opinion. But to hedge my bet, I've got a
testimony in case you go ahead with your resolution and I would like to read, so if
you do so pose that question, I read this. You have a copy of my testimony. The
2009 rules of the County Council contain multiple provisions that should be
reconsidered and changed... establishing a committee composed of persons familiar
with County affairs, but not presently serving this Councilmembers to study and
recommend to the Council the amendments they would propose would be a
COUNCIL MEETING - 60 - ~ August 5, 2009
thoughtful and efficient way to identify and present changes that would allow the
rules, better serve the Council, and our citizens. However, the committee is
proposing the proposed resolution is fundamentally defective and should not be
created unless all of the following corrections are included. The proposed
composition of the committee is unjustified. Well, the persons named are not
objectionable, they all represent similar backgrounds, and (inaudible) the power of
the Chair. It is essential that at least three (3) additional members be appointed
which I presume you guys are in the process of doing who would be supportive of
the interest of members of the Council other than the Chair and the general public
to provide appropriate balance. I would suggest that the Councilmembers Bynum
and Kawahara should be allowed to nominate the additional committee members
which I believe you have in the paper. It is doubtful that the committee would be
subject to compliance with Sunshine law requirements, but that should be required.
I suggest that in establishing the committee to be specifically provided that the
committee shall operate in confirmation with Sunshine law as to calendaring and
notices of its meetings. That is meetings open to public attendance and
participation, and the public testimony be allowed for all agenda items should be
proved that the committee would be served by the Office of Boards and
Commissions and provide secretarial assistance and in meeting locations and time
selections, and posting notices should be required that records of proceedings of the
committee be kept and be available for public view, review. The standard for
recommendation should be as provided in the Charter for amendments necessary or
desirable. Don't we want improvements that are desirable as well as those that are
necessary. If we are going to have the committee, let's do it right. Again, you know,
in your wisdom, you may choose not to. That is what the democratic process is about
and you will have to take that vote to decide that, so thank you Kaipo for extending
the time. I appreciate it.
Ms. Kawahara: Chair, may I reply to one of his assumptions.
Chair Asing: Pardon me.
Ms. Kawahara: May I reply to one of his statements just to let him
know.
Chair Asing: Yea, go ahead.
Ms. Kawahara: Okay. I was told that the Sunshine law would
apply to a committee or advisory committee of the Council, so it would apply, and
that was a very important issue for me and Councilmember Furfaro was gracious
enough to be able to tell me that, so it would be Sunshined.
Mr. Mickens: I am glad to hear that.
Ms. Kawahara: Thank you.
COUNCIL MEETING • - 61 - ~ August 5, 2009
Mr. Mickens: Thank you Lani.
Chair Asing: Thank you. Caren?
CAREN DIAMOND: Aloha, Caren Diamond. I was sitting here this
morning and I had this thought that I was really happy to see the Councilmembers
actually being civil to each other talking and it seemed like you guys were...
relationship had been a lot repaired. So, basically, I think the most important thing
is for this body to actually have a good relationship for you to trust each other, for
you to be open to each other, and for you... because otherwise the County
government business really falls apart, so I really want to urge you however best
you can do that as a group to please do that. I want to say that there are certain
really crucial bills through the years that we couldn't get addressed through
Planning. That the Planning Department, Planning Commission would not
introduce, would not even address... really crucial bills like the shoreline setback
bill, vacation rental bill. It was Kaipo, it was this Council who put them on the
agenda who got laws made that were such critical to workings of this County. So
my experience has been different... my experience has been that the Council and
the Council Administration has been really open to the public and open to the
people's business and has been doing a good job, and Planning has been doing a
poor job. We have had to come to the Council rather than go'to Planning for things
that actually should have happened in Planning. So I basically want to support the
staff and I want to support the Council, and want to ask you all to try to amend
your relationships however you best can do that, so that we can move forward with
the business that is so crucial. Thank you.
Mr. Chang: Thank you.
Mr. Furfaro: Caren, thank you for your positive comments about
the Council.
Mr. Bynum: Thank you.
ALICE PARKER: Alice Parker for the record. There certain
(inaudible)... okay, we need lunch, the staff needs lunch, the Councilmembers need
lunch, could we continue this after lunch please? Thank you.
Chair Asing: Thank you.
RONALD KOUCHI: For the record Ron Kouchi. Mr. Chairman and
members of the Council, I would like to say when I received the call from Jay to
serve on the committee, I was honored and more than happy to serve. The call was
made some time ago and I thought that the work of the committee if it had been
formed would have been concluded by now. And, you know, as it has taken time to
discuss a variety of issues related to this, that hasn't happened, so one of my
concerns is that my employer has a bill that was heard by the Planning Commission
COUNCIL MEETING. - 62 - • August 5, 2009
on Tuesday. We expect the bill to be referred to the Council for its consideration
next month and while I don't believe that there is a conflict of interest, there
certainly could be an appearance of a conflict, and I need to inform you of that if you
are going to consider approving the resolution and if it would still be appropriate for
my name to be on the resolution as someone who would serve. The second that I
would say is I was traveling when you had your July 22 meeting and I did receive a
call from Daryl telling me about his comments and expressing to me that it reflected
no personal reflection on my abilities, the Judge's abilities, or Phil's abilities, but a
reflection of what he personally believed was a better process to accomplish the
same job. After he talked to me about having it led by the Council, it led me to
arrive at several conclusions. One, if it is chaired by Councilmembers, there is no
debate about posting of the meetings and the public's right to participate under
Chapter 92. The second thing that I realized is much of what Glenn has said is what
I assumed that we would do as the committee. We need to make a report with
recommendations. We would have been assigned Council Services staff... if we were
using County resources, I assume that it would have been posted meetings and we
would have followed all of the same process for any Council meeting because of the
use of that County staff. However, it made me then think after talking to Daryl
that, what is the appropriateness of someone from the public with no standing in
the County issuing directives for employees of the County, and that there would be
potential liability involved in that kind of relationship, and what liability would
that staff assume having given advice to private citizens who aren't employees. So
it finally dawned on me that we've never had a committee comprised of citizens
convened in the Council in my 25 years or so being affiliated with the Council, those
committees more appropriately as Daryl has suggested on the 22nd comprised of one
or two (2) Councilmembers. We've looked at a variety of issues from the real
property tax code revisions, we've looked at how we deal with taxing of ag lands,
and, you know, economic task force, but always led by a Councilmember, never
more than two (2) Councilmembers, but then the Councilmembers, in fact,
instructed the staff, the staff took the order from the Councilmember who is a duly
authorized person to execute those orders, and I think you can certainly now invite
into the committee that you form, members from the public to come forward to
speak, and to share their mana`o with you. Being posted, you know, everyone who
has an interest of this would have a chance to speak and, you know, well, I thought
that Jay had a good idea in talking to Daryl and Daryl making me think about this
further, you know, really made me see that probably that the more prudent way to
go would be to have the Councilmembers in charge, and especially when the
consistent theme has been transparency, openness, and access to the public being
chaired by Councilmembers, you will ensure that you would meet those missions
while trying to get the same job done. Thank you.
Chair Asing: Councilmember Furfaro?
Mr. Furfaro: Ron, first of all, I want to publicly thank you as you
pointed out that I had asked you some time ago as this is something that I wanted
to do from the inaugural, but you bring up some very, very good points, and you
COUNCIL MEETING • - 63 - • August 5, 2009
know, you are very valued member of this community here. Your history, your
knowledge, the process, and I just want to personally thank you for the first phone I
had to ask you about this, and thank you again for coming up and sharing your
thoughts on this matter.
Mr. Kouchi: At this time, I will say thank you for thinking of me
too.
Mr. Furfaro: Mahalo Ron. Thank you Mr. Chair.
Chair Asing: Thank you Ron.
Mr. Kaneshiro: Thanks Ron.
Chair Asing: With that, I would like to call the meeting back to
order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Is there further discussion?
Ms. Kawahara: I believe so, but do we want to go to lunch?
Chair Asing: No, I want to finish it up.
Ms. Kawahara: Do you want to vote on that?
Chair Asing: Let's finish it up.
Ms. Kawahara: Okay, so I would like to say that we continue. I
make a motion that we continue after lunch with the same discussion.
Chair Asing: And I am saying that I would like to finish it up. I
mean we've had a long time to discuss it and I think we should vote on the issue
now. We've had the discussion for a long time now and I'd like to take a vote on the
issue. So with that... yes, go ahead.
Mr. Kawakami: So what we are in essence doing is voting to receive
this?
Chair Asing: Yes.
Mr. Kawakami: _ Does that stop anybody from making another
proposal after that, after hearing the testimony whether we are going to have it
chaired by two (2) Councilmembers? Imean, you know...
COUNCIL MEETING. - 64 - • August 5, 2009
Mr. Kaneshiro: I think what we would do is receive the advisory
committee proposal, and then we can always come with a different communication
if there is something else that the members please to do. But at this point, where I
am going at is that I am looking at receiving this communication of the advisory...
the resolution rather than communication.
Mr. Kawakami: Okay.
Mr. Kaneshiro: And let's look at some alternative ways as I had
mentioned which involves the Councilmembers.
Chair Asing: Go ahead Tim.
Mr. Bynum: Just so the public understands because we received
communications. When we receive this, it means kill it, so just so everybody is clear
about that.
Mr. Kaneshiro: Yes.
Chair Asing: Well, with that, let's take a vote.
The meeting was called back to order, and proceeded as follows:
The motion to receive Resolution No. 2009-48 for the record was then put, and
carried by the following vote:
FOR RECEIPT: Chang, Kaneshiro, Kawakami,
Asing TOTAL - 4,
AGAINST RECEIPT: Bynum, Furfaro, Kawahara TOTAL - 3,
EXCUSED & NOT VOTING: None TOTAL - 0.
Chair Asing: We are going to break for lunch. Thank you.
There being no objections, the Chair called for a recess at 1:13 p.m. The meeting
was called back to order at 3:19 p.m., and proceeded as follows:
Chair Asing: Can we have the next item please?
Mr. Nakamura: We are on page 4 of the Council's agenda
Mr. Chair. This is Resolution No. 2009-50.
Resolution No. 2009-50, RESOLUTION AMENDING RESOLUTION
NO. 2009-02, RELATING TO ADOPTING RULES OF THE COUNCIL OF THE
COUNTY OF KAUAI FOR THE ORGANIZATION OF COMMITTEES AND THE
TRANSACTION OF BUSINESS: Mr. Kaneshiro moved to receive Resolution
No. 2009-50 for the record, seconded by Mr. Kawakami.
COUNCIL MEETING ~ - 65 - • August 5, 2009
Ms. Kawahara: Discussion?
Chair Asing: Discussion yes.
Ms. Kawahara: So you are moving to receive this instead of
approving it, is that correct?
Mr. Kaneshiro: Yea, that is the motion I made.
Ms. Kawahara: So I would like to ask that all the Councilmembers
are actually saying that they are not going to vote on whether or not they think this
resolution is valid?
Mr. Kaneshiro: No, I think as I had stated before, you know, I feel
that we should... the Council itself should look at maybe forming its own committee
with Councilmembers and going over some discussions, and if there are some rules
and changes that need to be made, then have them come up with some acceptable,
you know, discussions, and then perhaps come with a communication or a
resolution in that regards.
Ms. Kawahara: I respectfully... may I reply? Respectfully, I think
this actual resolution is much more defined and it is not all the rules and the entire
actual rules of Council. So the fact that... I think that we could actually vote on it
because it is very specific... the three (3) items and not an entire rules of the
Council.
Mr. Kaneshiro: But there... but isn't there a change to the Council
rules?
Ms. Kawahara: Well, if you are thinking it is a change...
Mr. Kaneshiro: (Inaudible) that you and Mr. Bynum is proposing?
Ms. Kawahara: Did you want to... how do we do this when we
discuss? Is it one person one time and the other person next time?
Mr. Kaneshiro: Go ahead, give her the floor.
Ms. Kawahara: I think it is a clarification. Again, you know, when
we are talking about how rules are interpreted and it is obvious or not, I think it is
not obvious, and that is why we have had this discussion. So I think that because
this is a very specific resolution versus a whole resolution on the entire rules of the
Council, that it should 'be voted on, and that the community should be able to know
where their Councilmembers stand on these specific resolution changes...
clarifications.
COUNCIL MEETING. - 66 - • August 5, 2009
Chair Asing: Okay, any further discussion? Councilmember
Bynum?
Mr. Bynum: I guess I wasn't quick enough with the motion to
approve.
Chair Asing: Councilmember Bynum? Let me help you. There is
no such thing as quick enough because whoever is the Chair will recognize the
individual. So, you know, I... I don't know whether I should help you or... go ahead.
Mr. Bynum: This is the resolution that I have attempted to put
forward for months and we have a Council rule that says that any member can
introduce any bill or resolution. When I read that, it was very clear to me and it
made sense to me because a fundamental principle of democracy is that we have
discussions that a member, an elected person, in my opinion, an elected person who
went through the turmoil of being elected has the right to put their proposals on
behalf of their constituents before the body for consideration. I didn't even know
that was a question. If you want to read any version of Robert's Rules for a
committee member, you know, you are a member, you get to place items on the
agenda. I didn't even know it was a question. I have already told the story of how I
came to the realization that because subsequently, it says that the Chair must
initial anything in order for it to be placed on the agenda. That rule was being used
in my view to override. When I read that, it says, the way that the rule currently
reads, placement on the agenda. All bills and resolutions must be initialed by the
Council Chair... you must do it. Must means (inaudible)... you have to put the
initial in order for it to appear on the agenda. I recognize that the Chair is the
presiding officer of this body. I recognize that the Chair is there to manage the
agenda and I have talked about it in the past when I first proposed a bill, the Chair
said, you know said, let's wait on this, let's try to take a different approach, and I
thought that was very appropriate in terms of his management of the agenda.
But when what I was trying to seek didn't occur, I sought for it to be on the
agen... because it didn't happen by the other proposal. So it is like, hey, I am
elected official. This is an important thing to my constituents... Iwould like the
body to dialogue and debate and make a decision about it, but that didn't happen,
and it didn't happen on a number of proposals that I thought were important for our
community. So I sought this resolution to clarify this rule. The rules says that in
order to appropriately coordinate the agenda, bills and resolutions must be initialed
by the Council Chair and it adds a sentence. The Chair or his designee shall not use
this rule to restrict introduction of any bill or resolution introduced by any member.
We just had a big debate about whether we would have a committee look at a
comprehensive look at our rules. And, you know, we had probably one of the best
debates that we have had. We discussed it, we shared our mana`o, there was a vote,
and the vote was 4 to 3, but we had a discussion, it was on the floor, everyone is
accountable for the votes they made, I am accountable for my vote. That is
COUNCIL MEETING ~ - 67 - ~ August 5, 2009
democracy in action, that works, I am not happy with the outcome of that vote, but I
accept it because that is the whole thing. But the simple premise that an elected
official can place something on the agenda for consideration subject to the rules and
the management, I think needs to be clarified. I got assurances that I could place
anything on the agenda and it would be duly considered. So if we vote to move to
receive this bill right now, receive in this instance means kill it... I don't believe it
will be duly considered and I just would be dismayed that people who went through
the process of getting elected which, trust me, is not an easy thing. It takes very
serious commitment and we all know that because we are sitting here... that you
wouldn't endorse the premise that the democratic principle applied to you that you
can introduce any bill or resolution just like our Council rules say, and I posed this
question. What does that rule mean? When it says that any member can introduce
any bill or resolution. You know, what does it mean? If it doesn't mean what it
clearly says, so I would respectfully request that members vote against, as I am, a
motion to receive and we put this on the floor for consideration. Thank you very
much.
Chair Asing: Councilmember Kawakami?
Mr. Kawakami: Thank you Mr. Chair and once again, I am going to
bring up rule 15d which I guess could be worded a little more clearly, so that you
would understand it, but it allows a mechanism for you to get an item on the
agenda through the body of this Council. You may not... for whatever which reason
to be able to get it on say, for example, fast enough, or in your example ever get it on
through the Chair, but if you go through the body, there is a clear mechanism and I
guess it could be made more clear. So maybe in the future if you want to analyze
rules, we could analyze this one to make it more clear that there is an alternate
mechanism. Like I have said before, I think it is a good rule. I think it holds your
individual Councilmembers feet to the fire from time to time if you cannot get what
you want on the agenda. Hey, put us all to the test. And, I mean, let's look at the
rules. I don't see... all communications submitted to the Council should be time-
stamped upon receipt and presented to the Council Chair for disposition. For
disposition that is to transfer to the care of possession of another, so ultimately, the
rule states that, eh, any item, the Chair has the power to transfer, you know, what
committee it is going to be in, but not necessarily to hold anything back. If you find
yourself in the position that you are in, hey, you can still go through the body. I
mean would you disagree that there is a mechanism for you to go through to get
your items on the agenda.
Mr. Bynum: Respectfully I would. I would say that that rule
says... that rule, is it talking about amending the agenda and as we have clearly
stated, the Sunshine law requires that we have a six (6) day... the proper
mechanism is to do it the way that the rules indicate. You introduce it, the Chair
manages it. You know, if you want to vote against it, I will be very surprised that
you wouldn't want to do what is fundamental practice on every board and
commission that I can think of. I don't think... there is no question in my mind that
COUNCIL MEETING - 68 - ~ August 5, 2009
it is a fundamental principle that if you are a member of a body, you can place
something for consideration. So, you know, I don't believe that rule was intended to
be the mechanism and it carries a supermajority requirement. You know, as... so I
disagree respectfully.
Mr. Kawakami: So if it carries a supermajority, then the majority
has spoken if they vote against it. That means that they don't want to hear it, that
means that they don't believe in it, but there is a mechanism.
Mr. Bynum: I have never seen that as a mechanism to place a
bill...
Mr. Kawakami: Didn't you just use it... I am sorry, go ahead.
Chair Asing: Go ahead Tim.
Mr. Bynum: I never seen that as a mechanism. The proper
mechanism is to go through the Chair. I came here and got oriented like all of you.
You want to place a resolution, you write a memo. You want to place a bill... that
rule also address how you do this. When you down... it doesn't say, go make a
motion to amend the agenda. It says, put it in writing, submit it to the Chair, and
then it says, and this is clear to me anyway, the Chair must initial. All bills and
resolutions must be initialed by the Council Chair.
Chair Asing: Go ahead.
Mr. Kawakami: How did you get your... I forget what
communication it was. How did you get that on the agenda?
Mr. Bynum: After trying for more than two (2) years to place a
number.. .
Mr. Kawakami: Just give us the short story.
Mr. Bynum: How did I get this resolution...
Mr. Kawakami: Not this resolution. When you guys had your
presentation when we initially discussed it, you guys had your PowerPoint, how did
you guys get that item on the agenda?
Ms. Kawahara: It was a communication.
Mr. Bynum: We made a motion to put a communication
requesting that it be placed on the agenda, but it got placed on the agenda
eventually because the Chair put it on there.
COUNCIL MEETING ~ - 69 - ~ August 5, 2009
Mr. Kawakami: No, it is because we took a vote and we all voted to
support you.
Chair Asing: And I voted for that.
Mr. Kawakami: Did you have to get the Chair's initials upon that
point? No.
Mr. Bynum: We voted on a communication... receiving a
communication and we can call... I guess we can't call the County Attorney.
Ms. Kawahara: You know, i£ if everybody is done with what they
are talking about. If the Chair could let me know when people are done talking, I
would appreciate it.
Chair Asing: Go ahead Councilmember Kawahara?
Ms. Kawahara: Thank you Chair Asing. I guess my question would
be basically... when you are talking about rule 15, would you say that it would
require a different measure of... it requires a different type of measurement in order
to get on an agenda if you are using rule 15 versus putting it on through the Chair.
Mr. Kawakami: You know, you know what, I am suggesting that
maybe we need to reword rule 15, so that it becomes more clear, so that it is
understandable.
Ms. Kawahara: What we are talking about would be rule 10(c), not
15.
Mr. Kawakami: But I am talking about rule 15 because I am saying
that it offers you a different way to get an item on the agenda. Do you see the...
Ms. Kawahara: I see it right on front of me. For me, what I am
seeing here is that there would be a different level to reach in order to get on the
agenda for number 15 which versus going through the Chair. (Inaudible) different
level to be met in that situation and I would like to just say that. I understand that
you believe that rule number 15 allows the same, would you say? The same level of
scrutiny to go onto the agenda?
Mr. Kawakami: I never said it was the same level. I said it is an
alternate mechanism.
Ms. Kawahara: Would you feel that it is equal?
Mr. Kawakami: I would say that it is an alternate mechanism.
COUNCIL MEETING - 70 - ~ August 5, 2009
Ms. Kawahara: Okay.
Mr. Kawakami: If it was equal, it would be the same thing which I
never said it was the same thing.
Ms. Kawahara: So I just feel that rule number 15 would not be an
equal way to be, you know, the equal way to get something on the agenda versus
going through the Chair... the measurement and the scrutiny that it would take is
additional to do it through number 15. In answer to what you asked about how do
we get on the agenda, we went through many hoops. We did go through one when
we tried to get it just basically on the agenda because it wouldn't get on the agenda
otherwise. We had the Sunshine rule. We took that and we said, okay, we will do it
another way. The only way that we got in on was as a communication. It was never
ever introduced as a resolution unti-1 a month later. May I ask how you got your
resolution on for today?
Mr. Kawakami: I went to the Chair and have you attempted to...
Ms. Kawahara: Okay, so it was difficult for us to get that to the
Chair.
Mr. Kawakami: get anything on the agenda. Have you attempted
to get anything on the agenda that has been blocked?
Ms. Kawahara: I haven't even bothered to do it because...
Mr. Kawakami: Well, then that is not my fault then. .
Ms. Kawahara: I not... I am supporting Tim in what he is doing and
I know he hasn't gotten his stuff on the agenda. I don't really actually have any
legislative projects right now, so if I need to like come up with something so I can
try to introduce it the Chair, I could do that, but legislatively, I am working on
things, but I don't actually have a legislative project to put up, on the agenda. What
I am backing is Councilmember Bynum's absolute... he has absolutely shown that
he has not been able to get on the agenda and I still stand saying that rule number
15 is not an equal way of getting on the agenda as it would be through the Chair,
but I respect the thought that you think it is an alternative. I think it is beyond an
alternative. I think it is a... it is not equal and it is a lesser... there is a higher
degree of scrutiny that has to be gone through in order to get on the agenda to go
through number 15.
Chair Asing: Councilmember Kaneshiro?
Mr. Kaneshiro: Thank you Chair. I have a question for you Lani.
Previous to this on the other agenda item, you made a statement that you weren't
able to get things on the agenda. Now you are saying that you are backing
COUNCIL MEETING • - 71 - • August 5, 2009
Mr. Bynum because Mr. Bynum can't get things on the agenda. Is that what you
are saying because I heard you clearly state that you were... you know, you were
going through this process...
Ms. Kawahara: Maybe.
Mr. Kaneshiro: You stated that and said that I wasn't able to get
things on the agenda.
Ms. Kawahara: Uh huh.
Mr. Kaneshiro: - So now you are saying that you haven't put
anything on the agenda, but Mr. Bynum wasn't getting things on the agenda, is
that the correction you are making in your statement then?
Ms. Kawahara: I am... I am not sure, so you are saying that I said
something, right?
Mr. Kaneshiro: Well, you said it. Obviously, I heard it. I mean I
heard you say that. I wasn't able to get anything on the agenda and this is why...
(inaudible) fulfill the advisory committee and until (inaudible), but now I just heard
you when Mr. Kawakami asked you a question where you made the statement that
I am backing Mr. Bynum because Mr. Bynum couldn't get things on the agenda.
Ms. Kawahara: Does it make a difference to you? Does it make a
difference to you who can get on the agenda or not?
Mr. Kaneshiro: Yes it does because you made reference that you
tried to put things on the agenda and you made reference to the body, that you
weren't able to.
Ms. Kawahara: Oh, yea. Well, you know what I wasn't able to get
on the agenda, the resolution, so I wasn't able to get what I wanted on the agenda.
That would be the resolution we are speaking about.
Chair Asing: Councilmember Bynum?
Mr. Bynum: I think this last discussion was like splitting hairs
and not getting really at the crux of the matter. Anybody is free to read our rules
which are posted on the Internet website that I put up and rule number 10 is
general provisions regarding bills, resolutions, motions, and amendments. First,
"a", introduction. -Any bill or resolution may be introduced by any member. The
original copy of any bill or resolution shall be in writing, dated, and signed by the
introducer otherwise it will not be considered. This is the portion of our rules that
talk about introduction of bills, resolutions, motions, and amendments. It goes on to
talk about the manager can be a Committee Chair or someone else. It goes to talk
COUNCIL MEETING. - 72 - ~ August 5, 2009
about placement on the agenda and says that all bills must be initialed by the
Council Chair or in the Chair's absence, the Vice Chair or designated Chair as
stated in rule 3 in order for it to be placed on the agenda. It goes on to talk about
amendments and motions and bill readings, and resolution readings. This is the
section of our rules that addresses placing these things on the agenda. Any clear
reading of this (inaudible)... that has not happened in my case, in the case of
Councilmember Yukimura who has testified to that and Mel Rapozo who came up
here and said that when I was on the... I couldn't get my stuff on the agenda either
and I had to go get the votes in advance which clearly is not appropriate under the
Sunshine law.
Mr. Furfaro: Actually it is the serial communications law that it
is (inaudible) appropriate.
Mr. Bynum: Well, my interpretation...
Mr. Furfaro: I just wanted to make that point.
Mr. Bynum: My interpretation of the Sunshine law says that we
should place proposals on the floor and discuss them here. Not that I should go line
up my four (4) votes in advance.
Mr. Furfaro: Mr. Bynum; I am agreeing with you, but the rule is
the serial communication.
Mr. Bynum: So what I have here today is an attempt to clarify
what I think, in my judgment, is obvious. Which in my judgment, is a fundamental
principle of democratic process. I would like the support of my members to do that
clarification because I have demonstrated that it hasn't functioned that way in the
past. Hopefully, it will be going forward.
Chair Asing: With that, Councilmember Kawakami?
Mr. Kawakami: And I understand your... I understand your point
and I would still like to say that I believe that rule number 15 also exercises the
fundamental democratic principle. I am not implying that you go and get your four
(4) votes, I am saying that you should and it would be appropriate that if you cannot
get your item on the agenda, to make a motion to amend the agenda upon which
you would take the vote and immediately defer until the next Council meeting.
Philosophically, Ithink it is good. I think your proposal is just a blanket proposal
and nobody will ever be tested as to where they stand on these kinds of issues, and I
think from time to time, we should be tested. And if you can't go through the Chair,
you should hold our feet to the fire and see where we stand as to if we believe the
minority should have a voice. And I think when you did attempt to amend the
agenda, we all recognize the importance for you to have a voice and we all voted to
approve that upon which it was deferred, and it got on the agenda, and that is my
COUNCIL MEETING • - 73 - • August 5, 2009
point. It might not be the way that you want it to be, okay, but I am saying that
your implication that the only way to get things on the agenda is... anything on the
agenda is through the Chair would be a false statement. It would be false for you to
go out to the public and say that the only way I can get something on the agenda is
with the Chair's blessings. That would be, in my opinion, false.
Chair Asing: Councilmember Bynum?
Mr. Bynum: I appreciate what you are saying Councilmember
that I, you know, don't believe is the way that the rules intended for us to place
things on the agenda, and I would like to ask that the County Attorney come up and
try to ask... because I asked him that question once before. Can I make a motion to
place something on a subsequent agenda, right? Because (inaudible) told to me in
all the training that I was provided by Mr. Tacbian and others about parliamentary
process, you know, that didn't come to me until OIP said, normally you couldn't do
this with a major thing because of the Sunshine law. But because you are only
asking for a clarification, our judgment and OIP is it is not of reasonably major
importance, and therefore you can do this under the Sunshine law and that is where
we started on June 3 by me finding out... not from this Council, not from
parliamentarians, not from anybody else that perhaps I can get a clarification on
using the rule that you are talking about. And I think Councilmember Kawahara's
point is good that... that requires a supermajority. It is a different standard. I
believe the standard is just what it says. Any bill or resolution may be introduced
by any member and this is the rule that I think we should clarify, but I would like
to ask the County Attorney if you are correct because I don't know. I have never
. heard the answer. Can we... can any Councilmember make a resolution to amend a
future agenda and place a resolution by that mechanism? I don't think... if the
answer is "yes," I don't think it diminishes my argument that...
Mr. Kawakami: Let's go.
ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good afternoon
Council Chair.
Mr. Bynum: Al, i£ in your judgment as appropriate...
Mr. Castillo: Councilmembers, Al Castillo, County Attorney.
Mr. Bynum: Mr. Castillo, can a Councilmember use rule 15 to
make an amendment... I mean to make a motion to place something on a
subsequent agenda?
Mr. Castillo: You know, let me answer your overall question with
an overall answer. Way back in December, all of you agreed to these rules, and it
was by unanimous vote. And I have to agree with Councilmember Kawakami that
there is nothing in your present rules that you all voted aye for unanimously that
COUNCIL MEETING - 74 - • August 5, 2009
prevents you from utilizing the rules in getting items on the agenda. All of what
you are doing I firmly believe is within the fundamental practice of our democracy.
So, you know, if you want a specific ruling on a specific set of facts, and if you want
legal guidance, we can give you that and I will need time to do it in writing. But as
far as I am concerned, all of you agreed to the rules. Nothing in the rules gives me
any caution regarding prevention of anyone trying to utilize the rules. I understand
that there is a majority and I understand that there is a minority, but, you know,
you did exercise correctly the rules starting from June 3, to get something on the
agenda that you so desired. So, you know, I don't want to guess here, guess there,
speculate here. If there is any specific scenario that you would like me to address,
that is... I have to be very careful and that is the reason why I think if you would
like a clarification, I welcome you to write to me. And it is not because I want it in
writing, it is because whatever you are requesting right now... I don't want to pit
one Councilmember against another Councilmember. That is not my job, okay, and
I don't want to necessarily go hide what I am doing because all I am trying to do is
serve this community and serve this Council as best as I can.
But in terms of the rules itself, I have stated to all of you basically. Your
rules are in place and you can utilize the rules to your advantage. You are
discussing changing the rules or amending the rules, and, you know, wherever this
body goes regarding that, it is not my call.
Chair Asing: Thank you.
Mr. Bynum: So thank you very much.
Mr. Castillo: You're welcome.
Chair Asing: Go ahead Councilmember Bynum.
Mr. Bynum: My perspective is taking a long time to get here, so I
am not going to belabor it. To me, if we vote to receive this bill, you are voting for
the status quo which is that the Chair has a preemptive veto power over the
members of this body that happens outside public scrutiny. So let's have the vote
and if that is what you want to vote, but...
Chair Asing: Before you vote...
Ms. Kawahara: I have statements before we go to vote.
Chair Asing: I don't know if all of you listened to the presentation
that I made on July 22. I made a statement that the Chair does not have absolute
power, absolute power. And I will use my administrative skills to place items on
the agenda. I do not believe that any one person especially the Chair, should have
that kind of power. I do not believe that, so, you know, I thought I demonstrated
what I have done all along and in an equal and fair manner. That was my, you
COUNCIL MEETING • - 75 - • August 5, 2009
know, take and I demonstrated that to you with many facts, figures, times, dates...
I don't know what more I can do, but I showed you and gave you all that
information, and I emphasized more than once about the Chair not having absolute
power because I do not believe in that system to start with. I do not believe that the
intent of the rules were written with that in mind. Thank you. Councilmember
Kawakami?
Ms. Kawahara: I think I had asked first.
Mr. Kawakami: Do you want to go first?
Ms. Kawahara: ~ Point of personal privilege. I just... yes, I was
stunned that Daryl was asking about if I actually introduce anything, so just for a
point of personal privilege, my name is on this resolution that we are only getting to
today when we wanted to try to introduce it months ago. So that would be
something that I tried to introduce that didn't get introduced. On another point, I
am so glad to hear the Chair say what he has said because that is exactly what we
are asking for in this resolution. It just says that you don't believe that the Chair
has absolute power, so this should... so this is an easy resolution to pass because it
says the same thing. The Chair or his designee shall not use this rule to restrict
introduction of any bill or resolution introduced by any member. So your statement
is very well taken and I believe it mirrors the resolution itself, and as the
Councilmembers here at the... as the Councilmembers here at the table, have heard
you say that. I am pretty sure that they would be so willing to actually adopt the
resolution that says the same exact thing that you said that you don't believe that
anybody has or any one person should have the absolute power to determine the
agenda.
Chair Asng: And what I am saying is that I am agreeing with
you that the Chair does not have that absolute power. Go ahead Councilmember
Kawakami.
Mr. Kawakami: Thank you. You know, and once again, when I
initially said that, you know, the rules are relatively simple to read and understand.
If you read the rules, there is nothing in there that gives the Council Chair that
power. In rule number 3, officers and their duties... the Council Chair (inaudible)
presiding officer as far as items brought before the Council, his power is to
determine for disposition all matters properly brought before the Council which is to
transfer the possession into somebody else's hands, and that is his power. So if
something comes before him, the rules state that, you know, he can allocate it and
delegate it, okay. So I think when we are discussing the rules, the rules that are in
place, properly address how we should be operating. If you can read through the
rules and tell me that it doesn't address, you know, that... if you read through it
line by line, it doesn't give him the power, okay. And, you know, these rules... I
think the intent of these rules were to protect the people from the politicians and
COUNCIL MEETING. - 76 - • August 5, 2009
also to protect politicians from other politicians. And so these rules in place
properly applied, I feel work out just fine, and that is my personal opinion.
Chair Asing: Thank you. Councilmember Bynum?
Mr. Bynum: I agree with that statement about the rules are in
place to protect people and... that was pretty cool. Again, it should be simple to
clarify this then because the fact is that I had bills and resolutions that were denied
placement on the agenda, a number of them. The fact is that Councilmember
Yukimura had resolutions that were denied placement, okay.
Chair Asing: That is an allegation. I 'mean you should not
mention somebody else on what they said. How do you know that that is true?
Mr. Bynum: Because she said it and I believe her.
Chair Asing: You mean, if someone says something, it is true.
Mr. Bynum: I believe I have the floor Mr. Chair.
Chair Asing: You just responded to what...
Ms. Kawahara: I wonder about decorum.
Chair Asing: Go ahead.
Mr. Bynum: I wrote a bill two (2) years ago about placement o£..
use of the Internet and placement on the agenda. Did you not tell me "no", you
wouldn't put that on the agenda.
Chair Asing: No, I didn't tell you that. As a matter of fact, if you
look at the presentation I made on July 22, I made references to two (2) documents
from John Isobe. Those two (2) documents was a plan, so that that would not have
to be placed on the agenda, right? Didn't you agree to that? That if we were to do
that, we would have the time to do it, both the Administration and the Council, am
I correct?
Mr. Bynum: Initially...
Chair Asing: Am I correct?
Mr. Bynum: Wait a minute, if we are going to have a discussion,
let's have a discussion. '
Chair Asing: Yes, we are having.
COUNCIL MEETING • - 77 - • August 5, 2009
Mr. Bynum: I have already told the story. I did it in writing that
initially, you asked, we don't need this, but the minutes never got placed on the
agenda. That rule, that agreement between Mr. Isobe and myself which you were a
party to, did not happen. That is a fact Chair. Nothing went on the agenda until
less than a month ago. I mean on the minutes and I asked you, eh, you not putting
this on, please put my bill on. I put in a bill about funding at Po`ipu Beach. Was
that ever on the agenda?
Chair Asing: Yes.
Mr. Bynum: The bill that I introduced was on the agenda?
Ms. Kawahara: No, it was as a communication.
Chair Asing: No, not the bill.
Mr. Bynum: No, the answer is "no".
Chair Asing: The answer is "no".
Mr. Bynum: The resolution that we are discussing today, I asked
that be placed on the agenda in writing through the process, did you refuse to place
that on the agenda?
Chair Asing: Councilmember Bynum, you know, I am not going
to get into a debate with you.
Mr. Bynum: These are documented facts.
Chair Asing: And I presented documented facts. The facts that I
presented were black and white facts. I am talking about documents, actual
documents. I am not going to speculate, I am not going to guess. When I say
something, I present the document. That is the kind of proof that I get and I
present. I don't talk about it, I show the document, and make reference.
Councilmember Bynum?
Mr. Bynum: Yes, I show the document too. They are posted on
the web for anyone to read and I tried to avoid getting into this kind of back and
forth. When you came up here and made this presentation, you made a lot of
allegations, you placed up documents that you didn't review in complete and in
total, and anybody can read those documents and come to their own conclusions. I
put a number of items before you officially through the way it is supposed to be
done, and the answer was "no". That is a fact. Councilmember Yukimura has said
the same thing. Councilmember... former Councilmember Rapozo said the same
thing. I have the documents. They are in our official records that I requested
things on the agenda and they never appeared. That is a fact. You know, you said
COUNCIL MEETING. - 78 - • August 5, 2009
at the Po`ipu Beach, I asked for full funding of a study. It never was considered by
this body, it was never placed on the agenda. You said in that meeting that, what
did I do? I put it in the budget. The Mayor put it in the budget. That is a
documented fact, so you want to look at the documents, look at them all. Read them
in their totality.
Chair Asing: Councilmember Bynum, I am not going to debate
with you. You are stating things without documents, and without documents that
is untrue, you are making, again, half truths, and that is not right, and that is not
fair. With that, Councilmember Furfaro?
Mr. Furfaro: Yes, thank you Mr. Chair. You know, I just want to
go back and say that, you know, when we get into these things, the reality is that it
reflects on the entire body, the image of the body. I am continuing to be very
concerned about that. I wasn't very happy just recently when we had dialogue going
on between Councilmembers and so forth. The rule is that you have to be
recognized. You have to be recognized by the Chair, if you are out of order, you can
apologize, but that is the way that we should be doing business. I want to also say
that I think the material that Councilmember Kawakami brought up in rule
number 15 is basically our way to introduce something. Quite frankly, it is our way
to be able to override something that we want to see changed with the Chair. But I
also want to reiterate, I have heard the Chair week after week indicate that he does
not see himself as having absolute authority. Now, if supporting this resolution
clarifies that statement, I intend to support that resolution today. So if it is moved
to receive, I will not vote to receive it. I think it is a pretty straightforward change.
But for us to go back and forth here, not understanding or interpreting the rules
that exist, is wrong of this body. There is a way and you have to take some
initiative on your own to make those approaches and the approach I think we have
demonstrated back on the... I think it was the July 10 meeting when this body
unanimously agreed to put something on the agenda. That is the way to do it and
the County Attorney has confirmed that is the way to do it. But this is a pretty,
simple, straight forward resolution, but I think every time something is said out of
context and it is, you said, I said, she said, the reality is that you are affecting the
image of this body, and I want you to know that I am not happy that we have to go
through this. I am not happy for the staff and all the pulling and tugging that they
have had to go through as we shift gears, and try and change going forward. Please
remember that. I do want to acknowledge that, you know, the Chair has said that
he understands he doesn't have absolute authority.
Chair Asing: Let me again say I am... I guess upset at some of
the kinds of statements that have been made, and let me clarify. What
Councilmember Bynum don't know and understand and he has made, as an
example, the statement, and that he feels (inaudible)... because Councilmember
Yukimura made it. What he doesn't understand is that Councilmember Yukimura
wanted to introduce a bill that was not, not, agreed to by the County Attorney's
Office, and that is the reason I did not put it on the agenda. I told her, you go clear
COUNCIL MEETING • - 79 - • August 5, 2009
it through the County Attorney's Office first. I am not about to put any bill on the
floor if it has not gone through the County Attorney's Office and get some kind of
clearance. It would be irresponsible of me as Chair and part of my duties is to be
sure that any bill that comes from anywhere should go through the County
Attorney's Office, and at least get some clearance. So he makes these kinds of
statements like he is right, he is right. He is entirely wrong. False, false, false
information, and that just upsets me, it is wrong, it is not right. Again, I have to
remind him about these half truths that he continues on and on and on to say.
Mr. Furfaro: Well, you know Mr. Chair, I am glad I was able to
raise that question, so that you could clarify that. I just wanted to reinforce that I
have heard you talk about, you know, you understand that you do not have the
absolute authority. I think Councilmember Kawakami has explained to us that
there is rule 15 that allows us to use it as a vehicle. But, you know, over time as we
point out these... what to me seem relatively insignificant models of this happen
and that happen. You know, the perception in the public becomes, you know, a
little different than what I would like it to be perceived of. The problem here is the
process right now, okay. That is the problem. The problem here is the process and
we can, you know, work through this. This Council has made some quality decisions
on many items, but I would just like to point that out when, you know, we start
talking about things about, yes I did introduce this, and this was blocked and so
forth. If you really understand the mechanics of our rules, there are ways to make
that happen. I do not and I just want to reinstate it. I do not have a problem
supporting... I am sorry, does this resolution have a number? This resolution 2009-
50, Idon't think it is that major. But to say that the Chair hasn't recognized that
he does not have... I have heard him say time and time again, and I am also very,
very glad that we are shifting gears on many of these items. So if we can talk about
this resolution in terms of the resolution and not some of the past history that hurts
the image of this Council, I would appreciate that.
Chair Asing: Thank you. With that, Councilmember Chang?
Mr. Chang: Yes, thank you Chair. You know, hearing what I
have heard thus far, do you have any problems moving forward helping Mr. Bynum
get his concerns?
Chair Asing: Yes, I. don't have any problems with that.
Mr. Chang: on the agenda?
Chair Asing: I don't have any problem with that.
Councilmember Bynum, go ahead.
Mr. Bynum: As I said a few minutes ago, I am trying to avoid
this point by point, but I was referring to a resolution that Councilmember
Yukimura proposed regarding the Superferry when it was a hot item here. I had
COUNCIL MEETING. - 80 - • August 5, 2009
forgotten about the bill that she also proposed that didn't make the agenda, but that
is what I was referring to and that is not what she referred to (inaudible). Hello, I
was referring to a resolution regarding the Superferry that was not placed on the
agenda. I had forgotten about the bill that you are discussing regarding... you
know, that is a different thing that didn't make the agenda, so that... but, you
know, I don't want to belabor this point by point. I feel confident that when you
accuse me of doing half truths, that that is not accurate, and I will let people decide
that, and, you know, I would like to vote on this resolution which is a clarification of
what you say you agree with, so...
Chair Asing: Councilmember Kawahara?
Ms. Kawahara: Thank you. So I guess what I would like to ask
all... each of the Councilmembers is... one by one, can I ask them if they have a
problem with saying the Chair or his designee shall not use this rule to restrict
introduction of any bill or resolution introduced by any member? Derek, do you have
an issue with that in not being able to support it?
Mr. Kawakami: Ask me the question again? If I agree that there is
nothing in these rules that...
Ms. Kawahara: In this statement here which is one part of the
resolution, do you have any problems with supporting the fact that the Chair or his
designee shall not use this rule to restrict introduction of any bill or resolution
introduced by any member?
Mr. Kawakami: I just said over and over again that there is nothing
in this rule... in these rules that give `em that power in the first place.
Ms. Kawahara: So then there is no problem putting it in here.
Mr. Kawakami: Then there is no need for amendment to the rules. I
mean that is where I am coming from.
Ms. Kawahara: But you are...
Mr. Kawakami: There is nothing... but you are trying to correct
something.
Ms. Kawahara: Well, your Councilmembers here as your colleagues
are asking to...
Mr. Kawakami: You asked me a question, are you going to allow me
to respond.
Ms. Kawahara: I am sorry. I apologize.
COUNCIL MEETING • - 81 - • August 5, 2009
Mr. Furfaro: I just want to say that, you know, I just visited this
point of order. Lani, if you are going to ask us question by question...
Ms. Kawahara: Chair, I mean Mr. Furfaro, did you want to
recognize anybody?
Chair Asing: Go ahead, go ahead.
Ms. Kawahara: Thank you. I agree with what you said and I do
apologize, but I would appreciate it that you would acknowledge that I did hear you
and that I know what you said, and I am apologizing to you for doing that, okay?
Thank you.
Chair Asing: Okay, are we done with discussion? If not, I would
like to call for the vote.
Ms. Kawahara: I'm, I'm...
Chair Asing: Okay, the rules are suspended. -
There being no objections, the rules were suspended.
Chair Asing: Hang on, we are going to change the tape.
There being no objections, the Chair called for a recess at 3:12 p.m. The meeting
was called back to order at 3:19 p.m., and proceeded as follows:
ROB ABREW: It is sort of interesting as a person sitting here in
the public to hear all this banter back and forth and stuff on issues that have been
in the past and really... a lot of it is hearsay. A lot of it is hearsay and to go in the
past and talk about this. What we are trying to do is move forward. Well, what I
have tried to present today is issues that the rules state now are in violation of our
rules. There are three (3) communications here as I talked about earlier that aren't
following rule 15. Rule 15 states as everyone had... all communications submitted
needs to be initialed and time-stamped. They need to be received by the Council or
the Office of the County Clerk before 4:30 p.m. on the Friday two (2) weeks
proceeding the day of the regular Committee meeting. That is a County rule.
Number 3, the Clerk shall prepare and post an agenda for all meetings of the
Council and its Committees in my compliance with the provision of Chapter 92 HRS
The notification Chapter of 92 HRS is six (6) days before. That is the only thing
that Chapter 92 addresses. Everything on that agenda needs to have been received
by our Council, the previous Friday by 4:30. That is the Council rule. If there is no
State law or State rule, then it goes back to the Charter provisions and then to the
rules and the administration of the County Council and the clerks in the offices. The
other question I have is, you know, if we want to follow the rules again and every
COUNCIL MEETING. - 82 - • August 5, 2009
communication needs to be initialed and stamped that goes on the agenda... I have
three (3) communications that were on the list today that are received, but there is
no initials on them. So, you know, we are talking about ticky tacky things in the
past.
Mr. Furfaro: If you are looking for the initials, it is usually on the
back of the correspondence, not the front.
Mr. Abrew: Well, I am getting official copies from the County
Clerk's Office and that is the official notification that says received here. One of
them has initials on it and the other two (2) don't. You know, we are going back and
bantering about single words of must and everything like that, but you are being
presented... document evidence of information today that is not abiding by the
rules. And if this Council doesn't do something about it, then every... then this
Council is liable for anything down the road that these things affect. You know, the
proper way to have done these things was to defer these three (3) things in two (2)
weeks, and then everything would have been right, but you know, we keep going on,
but are still not following the rules after three (3) months of this, we are still not
following procedures that we've got set here. And to hear everyone in this room
banter each other back and forth about this not being this, (inaudible)... well, we
have a set of rules that were told at the meeting... testified that these are the rules
we go by, and we are still not following them. That is all that I have to say. Thank
you.
Chair Asing: I'd like to call the meeting back to order and I am
going to call for the vote.
The meeting was called back to order, and proceeded as follows:
Ms. Kawahara: I'd like to make... can I make a final statement?
Chair Asing: Pardon me.
Ms. Kawahara: A final statement Chair.
Chair Asing: Sure, go ahead.
Ms. Kawahara: Thank you. I just wanted to say that I am sure that
Councilmember Furfaro wasn't saying that the rest of us weren't concerned about
the image and how we work together because I definitely feel like that this has been
a very trying situation. But I just can't believe that there would not be support to
have a clarification of the rule, of this Council resolution that states the Chair or his
designee shall not use this rule to restrict introduction to any bill. It is just
fundamental clarification and both... most all of the Council... Councilmember
Kawakami and the Chair himself has said the same exact thing, so having it as a
clarification and printed in the resolution on the rules should not be something that
COUNCIL MEETING • - 83 - • August 5, 2009
people can't support. I would have faith that my fellow Councilmembers would just
support something as simple as that because it is no, you know, no problem either
way, so if it is not a problem now, then what is the issue if we just put it on as a
clarification for future times.
Chair Asing: Thank you.
Ms. Kawahara: Thank you.
Chair Asing: With that, go ahead. Councilmember Chang?
Mr. Chang: So just to recap what I have heard to... I just want
to make it clear that it is noted by the Chair that Councilmember Bynum and
Councilmember Kawahara... he is supportive of allowing you to put things on the
agenda. Is that what I am hearing?
Chair Asing: Yes.
Mr. Chang: Okay. In clarification because I wasn't here, but I
understand you mention about JoAnn Yukimura trying to put the Superferry item.
You know, I know that that was a very, very hot time. I think I... not knowing from
what I know, I can see the reasons why the Chair wouldn't want to put that on the
agenda because what happened at the War Memorial Convention Hall with that
outburst and the Governor, and everybody else, so there may be reasons on
somewhere that side or another... as Councilmember Kawakami was saying, rule
number 15 allows a Councilmember to use other mechanisms to be able to get
things on the agenda and when we talked a little bit about the ad hoc committee
and my decision not to support that. I did also say on the back side that I would be
supporting you to help you with your agenda items as far as being a mechanism, so,
you know, going back to that conversation, I am not going to back down on saying
that I will be supporting us as a mechanism in regards to rule number 15 for the
future, and I just want to thank the Chair for clarifying that he is allowing you to
move your agenda item forward. I am trying to be compassionate and serious over
here and I don't know why, Tim, you are looking at me like...
Mr. Bynum: Go ahead, like what?
Mr. Furfaro: Let's not make it personal.
Mr. Chang: I am not. I am trying to be supportive in what I
have listened to as being fair.
Chair Asing: With that, Councilmember Kaneshiro?
Mr. Kaneshiro: Thank you Mr. Chair. You know, I will be
supporting this resolution to receive this resolution and basically, you know, we
COUNCIL MEETING. - 84 - • August 5, 2009
have heard from the rest of my colleagues and other Councilmembers is that either
way, I mean we have a mechanism either way. If we change it, make some small
changes now or rule 15 can apply, so to me, you know, in my experience in almost
ten (10) years that I have been on the Council, I haven't run into any problems
getting things on the agenda by either using the Chair's initial or rule 15. So, for
me, I am speaking just about my experience. Now there may be some personality
conflicts that happen, we are going to put all that aside. I think this is the time for
us to move ahead and I look ahead as to how we can move forward. But I can tell
you, in my experience on sitting on this Council for almost ten (10) years, I haven't
even experienced any of that to happen where, you know, there were issues like this
that wasn't put on the agenda. And like Mr. Chang, you know, noted, there are
some other serious things that can happen throughout the community that can have
some real detrimental affects even if some bills are put on here without realizing,
you know, the detrimental affects upon the Councilmembers itself. So, you know,
we need to look at all of these issues and I think if a wording like this of such should
go in, you know, people not realizing that there could even be some threats to
Councilmembers occurring with different bills or issues if it is not studied carefully.
This can really happen and, you know, all I am trying to say is that in my
experience, I think the system that we have here has worked, and, you know, either
way like you said, but if you look at what Mr. Chang is trying to point out, now I
can see some real grave security issues that may come up. And, again, Mr. Bynum
is just laughing at my comments, but, you know, it is to everyone's own. And, you
know, Mr. Bynum, I am sorry about that, but I am passionate about it just as you
are. So, you know, you want to laugh about it, fine. That is how I feel, so I would
hope that you would give me the opportunity to express what I feel, you know,
without much laughter or smirks from you. So with that, I am ready to vote to
receive this item.
Chair Asing: Councilmember Kawakami?
Mr. Kawakami: And, you know, I am not going to go over why I feel
we don't need to change the rules. I have said it over and over again, but what I do
want to say and note is that only time will tell whichever which way this vote goes,
only time is going to tell if it has addressed the problem or not. Because when it
comes down to it, the matter and issue at hand was, you know, whether or not the
Council Chair had the power to hold things back. All I can say is whichever way
this vote goes, only time is going to tell. So we are going to see the letters to the
editors, we are going to see the blogs lighting up, but I can only tell you that only
time will tell if this problem has been solved. If it hasn't been solved, hey, I don't
think we are all going to dig our heels and pretend that there is not a problem. We
can always come back and address it, but I am going to give its due course, and let's
see how w move forward, and that is the main goal of this thing. It is not to look
back and start saying, back then when this person and this... yea, it is to move
forward. You cannot move forward if we are constantly looking back, so I am
looking forward, time will tell what this... if we will address the problem or not, and
let's see where it goes.
COUNCIL MEETING ~ - 85 - • August 5, 2009
Chair Asing: Thank you, with that, I would like to call for the
vote.
Ms. Kawahara: Correction to the record. Could I make a correction
to the record?
Chair Asing: Go ahead.
Ms. Kawahara: The resolution that I was showing was signed by
me. We had discussed it, Councilmember Bynum and I, several times, and it has
been introduced and with my signature on this one, but not a previous one, so thank
you.
Chair Asing: Councilmember Bynum, I will let you speak one
more time and we are going to call for the vote.
Mr. Bynum: Mr. Chang, you said that when Councilmember
Yukimura wanted to put a resolution on the Superferry, it was a very emotional
time for our community. I supported that being placed on the agenda and it wasn't
_ because I thought that was, in my judgment, that was just the time that the
community needed leaders to provide a forum and a discussion, and a place to vent
that emotion.
Chair Asing: Councilmember Bynum...
Mr. Bynum: May I continue please?
Chair Asing: Yes, go ahead.
Mr. Bynum: And I was reacting because, you know, and I
apologize if that was offensive. I don't know whether to cry or laugh, but I expected
your support on this resolution. So, you know, I was reacting in dismay. There has
been a problem with process. It is as clear as a bell. I think that is changing and I
am thrilled and I think that is great, but this is a fundamental basic principle of
democracy, and we haven't... this hasn't been the way it has been operating. I hope
it does going forward and I would have expected support from my colleagues for this
resolution to clarify this rule, so we can take the vote.
Chair Asing: Thank you. With that, I'd like to call for the vote.
Ms. Kawahara: Receiving.
Chair Asing: In favor for receipt say aye.
COUNCIL MEETING. - 86 - ~ August 5, 2009
The motion to receive Resolution No. 2009-50 for the record, was then put, and
carried by the following vote:
FOR RECEIPT: Chang, Kaneshiro, Kawakami,
Asing TOTAL - 4,
AGAINST RECEIPT: Bynum, Furfaro, Kawahara TOTAL - 3,
EXCUSED & NOT VOTING: None TOTAL - 0.
Chair Asing: Do we have anything else on the agenda?
Mr. Furfaro: Mr. Chair, just a personal point of privilege. I just
want to point out the receive stamp date and then of course the agenda time stamp
date on the back.
Chair Asing: You know, Councilmember Furfaro, sometimes I
want to answer some of the questions that speakers question, but many times, they
bring wrong information, and because they bring wrong information, it just gives,
you know, this Council kind of a... I wouldn't say bad name, but you know,
suspicious, and it is unfortunate that, you know, some members of the public are
not very accurate in their statements, so it (inaudible) doubt and suspicion upon us,
but...
Mr. Furfaro: But, again, I think under the mode of operenda
. between you and I, that is one of the differences when information is shared, it is
not accurate, I try and correct it.
Chair Asing: Good, thank you. With that...
Mr. Nakamura: On page 4 of the Council's agenda, a bill for first
reading.
BILLS FOR FIRST READING:
Proposed Draft Bill No. 2298 - A BILL FOR AN ORDINANCE TO AMEND
CHAPTER 8, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE
COMPREHENSIVE ZONING ORDINANCE AND SINGLE-FAMILY TRANSIENT
VACATION RENTALS: Mr. Kaneshiro moved for passage of Proposed Draft Bill
No. 2298 on first reading, that it be ordered to print, that a public hearing thereon
be scheduled for September 9, 2009, and that it thereafter be referred to the
Planning Committee, seconded by Mr. Furfaro.
Chair Asing: I am sorry, do we have anybody in the audience who
wants to speak on this? Go ahead.
Mr. Furfaro: And I just want to reconfirm that I believe the
agreement... the understanding that you and I have is we won't hold up the public
hearing, we will do it according to the schedule.
COUNCIL MEETING ~ - 87 - ~ August 5, 2009
Chair Asing: Yes.
Mr. Furfaro: Have some time with Planning and the County
Attorney. Thank you.
Chair Asing: I think we made that statement when we had the
communication, so... I am sorry, go ahead.
There being no objections, the rules were suspended.
ALICE PARKER: Alice Parker, Lihu`e. I am reversing direction
briefly on the fact of stamping things. When copies are made, they don't get the
back page, so perhaps all the signatures and dates could be on the first page. Thank
you.
Chair Asing: Thank you. Come up.
CHARLES BRAUN: For the record, I am Charles Braun. and I thought of
a positive way to cast... these initials shall enable the submission to proceed to the
agenda promptly.
Mr. Furfaro: Thank you.
Ms. Kawahara: - Thank you Charles.
Chair Asing: I'd like to call the meeting back to order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Roll call please. I am sorry, go ahead.
Mr. Kawakami: You know, I am going to support this and I was one
of the votes that voted against it sending it to the Planning Commission, but I think
it is back here, we got some comments from the Planning Commission, but I still
have my concerns over HRS 205, and so I know we are going to go talk to the
County Attorney to get clarification, but there is also another concern I didn't bring
up and basically under 205... well, 205 section 2 I believe, it also addresses
agriculture tourism. But in this law, it basically says that we can only move
forward unless the County has adopted ordinances regulating ag tourism. I am not
sure if we have completed the... or if it is in the works now I believe, but that does
seems like it has to come first before we, you know, move forward on this. But like I
said, let's get the public input and we... okay, that is my only comment.
Mr. Furfaro: Good point. Thank you.
COUNCIL MEETING - 88 - ~ August 5, 2009
Chair Asing: With that, any further discussion? If not, roll call
please?
The motion to approve Proposed Draft Bill No. 2298 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: r None TOTAL - 0.
Chair Asing: Al?
There being no objections, the rules were suspended.
Mr. Castillo: Council Chair, Councilmembers, Al Castillo,
County Attorney.
Ms. Kawahara: Hi Al.
Mr. Castillo: Hi. I guess the next matter for your consideration
is ES-393.
ES-393 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 Countv of Kauai vs. Ladv Ann Cruises, Inc., et
al., Civ. No. 09-1-0165 (Fifth Circuit Court), a lawsuit which arose out of Planning
Department of the Countv 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-N-87-40, (Planning
Commission of the County of Kauai, State of Hawaii) and related matters. This
briefing and consultation involves consideration of the powers, duties, privileges,
immunities and/or liabilities of the Council and the County as they relate to this
agenda item.
Mr. Bynum moved to go into executive session on item ES-393, seconded by
Mr. Furfaro, and unanimously carried.
There being no objections, the Chair called for a recess at 3:40 p.m. The meeting
was called back to order at 4:02 p.m., and proceeded as follows:
Chair Asing: With that, Mr. Clerk, next item please?
Mr. Nakamura: The last item Mr. Chair, we are on page 2 of the
Council's agenda on communication C 2009-272.
COUNCIL MEETING ~ - 89 - ~ August 5, 2009
C 2009-272 Request (07/24/2009) from the Office of the County Attorney for
authorization to expend additional funds up to $35,000 for Contract No. 7909 to
engage special counsel to represent the Planning Department of the County of
Kauai in the lawsuit, County of Kauai vs. Ladv Ann Cruises, Inc., et al., Civ. No. 09-
1-0165 (Fifth Circuit Court), which arose out of Plannin~partment 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 (The Planning Commission of the
County of Kauai, State of Hawaii) and related matters: Mr. Furfaro moved to
approve C 2009-272, seconded by Mr. Bynum.
Chair Asing: Do we have any audience who wants to speak on
this item? If not, any... I am sorry, Alice.
There being no objections, the rules were suspended.
ALICE PARKER: Alice Parker for the record. Again, I think
according to the court calendar this was begun hearing yesterday and I don't know
if we are too late to get more counsel for that, but I guess you guys can figure that
out. Anyway, thank you.
Mr. Furfaro: Alice, just so you know, it was moved back to
August 21 I believe if that answers your question I hope.
Ms. Parker: Yea, great, thanks.
Mr. Chang: Thank you Alice.
Mr. Furfaro: I am sorry, 25.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Any discussion?
The motion to approve C 2009-272 was then put, and unanimously carried.
ADJOURNMENT:
There being no further business, the meeting was adjourned at 4:04 p.m.
Respectfully submitted,
PETER A. NAKAMURA
County Clerk
COUNCIL MEETING - 90 - ~ August 5, 2009
/lki
COUNCIL MEETING
August 19, 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,
August 19, 2009 at 9:07 a.m., after which the following members answered the call
of the roll:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Daryl W. Kaneshiro
Honorable Lani T. Kawahara
Honorable Derek S.K. Kawakami
Honorable Bill "Kaipo" Asing, Council Chair
Excused: Honorable Jay Furfaro
Chair Asing: Please note that Councilmember Furfaro will be
here .this afternoon. He is running a little late and excused (Mr. Furfaro did not
attend the meeting because it was done before he arrived.)
APPROVAL OF AGENDA:
Mr. Kaneshiro moved for approval of the agenda as circulated, seconded by
Mr. Kawakami.
Chair Asing: Any discussion? Hold on.
There being no objections, the rules were suspended.
ROB ABREW: Aloha Mr. Council Chair. Twenty-eight (28) days
ago we were told the rules.
Mr. Chang: Rob, you want to state your name for the record
please.
Mr. Abrew: Rob Abrew for the record, sorry. Twenty-eight (28)
days ago, we were told that the rules that are on file at the County Council Office
are the rules that are now being used by this Council. At our last meeting, there
was a question about a rule that I addressed and I will read a quote. It says, in the
spirit of open government, County Attorney Al Castillo told the Council that the
Council rules are merely guidelines. Okay, so now we have this body telling us that
they are following the rules. Now we have the. Attorney telling us that they are just
- guidelines and I pull up a definition of a rule. It says a habit of conduct with regard
to right and wrong and a guideline says, suggest way of doing something. So for
f
COUNCIL MEETING. - 2 - • August 19, 2009 `
you guys to decide if you want to have a rule or a guideline, please let the public
know. For months, the Council has been... has debated these rules and how they
are followed and no consensus has come out of it. Most of the issues were about the
Chair's discretion on how the rules were followed. Some of the rules are ambiguous
and debatable for sides to be taken and we have seen sides be taken, but some of
these rules are black and white. When we are discussing rules, I would hope that
we are just not focusing on certain issues in the rules that can (inaudible)
personality, but all the rules. Concerning the agenda is what I am testifying on how
the agenda is built. We have rule 15... it said, agenda and priority of business. (A),
all communications submitted to the Council shall be time stamped upon receipt
and presented to the Council Chair for deposition (sic). (B), all communications to
be placed on the agenda must be initialed by the Council Chair and received by the
Council, the Office of the County Clerk by 4:30 p.m. on the Friday two (2) weeks
proceeding the day of the regular or committee meeting. (C), the Clerk shall
prepare and post an agenda for all meetings of the Council and its committees in
compliance with the provisions of HRS Chapter 92 HRS. I understand that. That is
what our six (6) day notice is, that is what the Sunshine law is, but anything on
that agenda per your rule has to be into the office by Friday before at 4:30. It goes
onto say, pursuant to Chapter 92 HRS, the Council or committees shall not change
the agenda once it is posted, but anything on that posted agenda has to be received
by Friday at 4:30, two (2) weeks proceeding. There is a mechanism and Mr.
Kawakami brought it up at the last meeting to add things to the agenda. You bring
it here, you amend the agenda, you get two-thirds votes, it goes on the agenda.
There is one item on the agenda today.
Chair Asing: Your first three (3) minutes has gone. I will let you
continue for another three (3) minutes.
Mr. Abrew: Okay. I am sorry... in its communication 2009-288.
That was presented to this body and to the County Clerk, Thursday at about 2:88 or
12:30 on Thursday the 13th which in my opinion should not have been posted on the
agenda, should have been brought here, asked to be added to the agenda because it
wasn't in by the rule you guys have in your guidelines that we were told you were
following and presented here, and then it would be put on the agenda. At that
point, there are some Sunshine guidelines that state that you cannot act on that
communication or anything like that for two (2) weeks because it will affect a
number of people. So that is how the agenda is built. We have solid dates and
timelines that are black and white rules. We were told that the Council is following
the rules, the County, the CA tells us that they are merely guidelines, so I guess it
is up to this body's decision is, are we going to pick and choose the guidelines, are
we going to be ethical and say, these are our guidelines as a committee and hold
each one of you and either one of you responsible to the oath that you guys took
when these were adopted in your Councilmembers... approved as Councilmembers.
That is my only thing is, I believe it is an ethical matter, you guys are regulated,
you guys are... each one of you in here are supposed to be the check and balance
with each other on the Council. You guys Council, you guys oversee, you guys do
COUNCIL MEETING ~ - 3 - ~ Au st 19, 2009
the check and balances, you seven (7) members do that. You are accountable to
each other, but you are also accountable to the public: Thank you.
Chair Asing: Thank you. Hang on.
Mr. Kaneshiro: I have a question for you.
Chair Asing: Councilmember Kaneshiro?
Mr. Kaneshiro: I understand what you are saying, but at the same
point, I want to make it clear that we as this body are not breaking any rules, any
laws.
Mr. Abrew: I understand you are not breaking any laws. You
are breaking a Council rule you guys agreed to follow back in December. You guys,
seven (7) members agreed to follow these rules. Two (2) we... or a month ago, the
body of the County, the people of the County were told you guys follow these rules.
Mr. Kaneshiro: Then there are certain circumstances where there is
some real high priority issues that need to be placed on the agenda, so if we follow
strictly by the rules, that means that we won't be able to put any of the agenda
items if we follow the strict conditions that adhering to.
Mr. Abrew: Yes you can. Mr. Kamakani (meaning
Mr. Kawakami) addressed that issue.
Mr. Kaneshiro: Mr. Kawakami, not Kamakani.
Mr. Abrew: I am sorry, excuse my mispron... you can bring it to
this body, anyone can bring anything to this body and ask to be added to the agenda
if it is something that is very important, it is going to affect a lot of people and
that... in Sunshine law rules state that that needs to be no action taken on it.
Mr. Kaneshiro: Wouldn't you as a typical person that is out there
rather it have it six (6) days where we meet the laws rather than put it on the floor
today and have some discussion on it today without any of you having any
_ knowledge that this would be on the floor. Would you rather have that then? Is
that what you are saying? Would that...
Mr. Abrew: My understanding is if it comes onto the floor today,
no action could be taken on it. It would have to be deferred for two (2) weeks, then
the public has two (2) weeks, you people have two (2) weeks to look at all the
information. I would prefer rather to have the information by the Friday at 4:30, so
the Council has a week to go through everything, the public has a week and a half
to come down to the thing, and~get everything.
COUNCIL MEETING - 4 - ~ August 19, 2009
Mr. Kaneshiro: Okay, I got your understanding, but procedurally,
that is not true. If we put it on the floor, there could be some, you know, discussion
that takes place. So that is your interpretation and we have our laws that we need
to follow.
Mr. Abrew: Okay. Here is the quote. It says, provided that no
item shall be added to the agenda in the matter provided herein if it is of reasonable
major importance and action thereon by the body will affect a significant number of
persons.
Chair Asing: Thank you.
Mr. Kaneshiro: Thank you. Anybody else?
Chair Asing: If not, I will 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 wanted to say that I understand Mr. Abrew's
testimony and, you know, we had lengthy discussion as a body about rules. We
have proposal about addressing it under one method and it was the body's decision,
but that wasn't the right way to proceed, but there is also, I heard, a commitment
for us to address the rules in other fashions, and I trust in due time, you know, we
will do that. So I understand Mr. Abrew's concern and I think eventually we may
choose as a body to address that. But the body will decide what mechanism will be
used, so (inaudible).
Chair Asing: Any further comments on this issue?
Ms. Kawahara: I had a question for Mr. Abrew.
Chair Asing: Go ahead. You want him up?
Ms. Kawahara: For just a quick question.
Chair Asing: Go ahead. Come up please?
There being no objections, the rules were suspended.
Mr. Abrew: Thank you.
Ms. Kawahara: Of course you do know that we had a large and long
discussion about the rules, so I am interested in what you are saying and I heard
you mention it also last time, two (2) weeks ago. With your reading of the HRS just
COUNCIL MEETING • - 5 - ~ August 19, 2009
off the top of your head, if we had just... if we just followed the 92 HRS rules, then
we would be in compliance, right?
Mr. Abrew: Yes.
Ms. Kawahara: Okay, I am just checking to see. I would have looked
over it myself, but your understanding without...
Mr. Abrew: Notice of the agenda if you do it six (6) days in... in
the notice of the agenda. That doesn't come back to decide the times that the County
Clerk receives it which is County stated and the State allows County to set
procedures on how they receive and record documents.
Ms. Kawahara: Okay, so the overriding is 92 and then the Council
decides on the time.
Mr. Abrew: I am not questioning this rule not abiding with HRS
92. All I am asking for is it is a rule of yours... now you as a body told us we were
going to follow the rules and all I am asking is, you guys told us you guys follow
through and follow the rules you guys adopted. This rule has nothing to do with
any State law. The notice is done correctly. I agree with that. It is the information
that is to go on that agenda that is the question here is if we were following the
rules, that item I mentioned would not be on the agenda before it came here, and
could be introduced here as a body discussed, but it wouldn't... no action could be
taken on it until the next meeting.
Ms. Kawahara: Okay, and I would say that there is some kind of
commitment I think to look at the rules overall as we have been trying to do.
Thanks.
Mr. Kawakami: And this would be a good rule to look at, but, you
know, like I stated at the last meeting, there is a purpose for the rules and it was...
and the Charter to protect the people from the politicians, to protect the politicians
from other politicians, but...(inaudible-mike not working)... I believe asking people
that have been around the block, this particular rule was set in place to protect our
staff from the politicians also. Now the Sunshine law is to protect the people
(inaudible) notice of items that we place on the agenda, so (inaudible)... we submit
testimony.. Now this rule was put in place to protect our staff to give them due
notice to be able to comply with the Sunshine law. Now there are matters that
come up that may be sent over from the Administration, it may be something
urgent that is sent over from a Councilmember, but I do believe that there is
(inaudible) going to have to be some discretion (inaudible) with these rules, but you
are proposing... if you have a solution that you would like to propose, I (inaudible)...
will affect the impact that (inaudible) if you were to allow all seven (7)
Councilmembers with all seven (7) different agendas to just bombard our staff with
potential agenda items on the day that they need to post it to comply with Sunshine
COUNCIL MEETING. - 6 - • August 19, 2009
law. Now there is, you know, consequences for every action and I would just like to
take into thought about what impact that would have on our staff. Now this rule is
to protect the staff from the politicians and we do have a hard working staff, and if
we didn't have that rule in place, I could just imagine the potentially disastrous
results that we would have on their workload, so just take that into thought.
Chair Asing: Any other 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:
Mr. Kaneshiro: Thank you Mr. Chair, but Mr. Kawakami made a
very good point. There is the issue of how we can get things on the agenda if you
think about it and this is the means of being able to get the public to get things into
us, give the staff enough time to be able to look over it and at the same time, place it
on the agenda. As Mr. Kawakami has stated, you can imagine if we got bombarded
by all of these request six (6) days before the agenda? Can you imagine that people?
I mean this whole office and this Council Services and even the Councilmembers
would be in disarray, so I think it is a good procedure. If you look at it, it has been
done for years, you know, this rule has been in place for many years, and I think it
is a way to control and be able to get things timely on the agenda as required by the
rules of HRS. I would say HRS Chapter 92, so with that.
Chair Asing: Councilmember Bynum?
Mr. Bynum: Yea, I just want to speak in support of
Mr. Kawakami's analysis of that, of this. I mean it is exactly correct and just for
the public's information, you know, that is the standard that we try to meet is to
meet that two (2) week deadline for all the reasons that you stated. I think
Mr. Abrew's point though is that the way the rule is currently stated is kind of
absolute, and it is something that we may want to look at in terms of making... still
having that standard that under most circumstances, we are going to meet the two
(2) week deadline, but as you have said, there are instances where it is in the
public's interest and in the efficient running a government's interest to put things
on that comply with the Sunshine law. So, you know, I didn't expect to have this
discussion today, but I think it is a good one because, you know, we can clarify...
perhaps clarify that rule in the future endeavors, but for the public to understand
the rationale. Thank you Mr. Kawakami for explaining that.
Chair Asing: Thank you. Any further discussion? If not, all those
in favor say aye?
The motion for approval of the agenda was then put, and unanimously carried. -
Chair Asing: Next item please?
OUNCIL MEETING • - 7 - • Au st 19 2009
C gu ,
Mr. Nakamura: Excuse me. The next matter is approval of the
minutes of the following meeting of the Council.
MINUTES of the following meetings of the Council:
Council Meeting of July 22, 2009
Mr. Bynum moved for approval of the minutes as circulated, 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 2 of
the Council's agenda on communication C 2009-281.
C 2009-281 Communication (08/07/2009) from Council Chair Bill "Kaipo"
Asing, informing the Council that the County's Auditor, R.C. Holsinger Associates,
P.C., will be present to update the Council on the progress of the 2009-2010 fiscal
year audit:
Chair Asing: Thank you. With that, I would like to suspend the
rules.
There being no objections, the rules were suspended.
Chair Asing: John? Good morning, how are you?
JOHN HOLT, PRESIDENT OF R.C. HOLSINGER ASSOCIATES, P.C.: '
Good morning. Fine, thank you. Mr. Chair, Councilmembers, Iappreciate you
having us here to give you an update of the progress of where we are with the audit
of the County of Kauai. Previously, we have met...
Chair Asing: For the...
Mr. Holt: My name is John Holt. ~ I am President of
R.C. Holsinger Associates, the independent auditors for the County of Kauai and I
am here with our Honolulu Office with Vivian Vier who is our manager. To give
you an update of our status... previously in June, we met with the Department of
Finance and laid out a timetable conducting the audit on a timely manner for the
current fiscal year. Presently, we are still going through the planning process. We
have identified the major Federal funds that we will need to audit during this time
period and one of the funds that we are still looking at our the ARRA (American
Recovery Reinvestment Act) funds or commonly referred to us as the stimulus
money and what needs to be done. The Federal government has designated those
funds as high risk funds and require us to audit those funds, so we are in the
process of determining the level of that work that needs to be done. High risk does
COUNCIL MEETING. - 8 - • August 19, 2009
not mean that there is a problem with internal controls or that there is an issue. It
just means that there is a high level of interest and they want to make sure those
funds are being audited. Let's see. The majority of the field work will start in
September and it is our intention to meet the reported deadline as of October 21 to
have a draft report for Council. We have informed the Department Heads of the
audit and the process that is ongoing and we have received back from the
departments their correction action plan, and we are in the planning process of
reviewing the corrective action plan from last year to see that those procedures are
in place. I can note to the Council that all of the items have been addressed in
responses to all of the findings, so we are in the process of reviewing those findings.
The other thing that we would like to do whenever we meet is to make sure
the communication is working when we have been retained by Council and just
wanted to know if there was anything in particular that Council had specifically for
us to address or to be concerned about.
Chair Asing: Thank you. With that, any questions for John? If
not, thank you very much. I appreciate your being here. When did you get in?
Mr. Holt: Thank you.
Chair Asing: When did you get in?
Mr. Holt: I got in last night and the rest of the team was here
since Monday.
Chair Asing: Oh good. Well, take some time to enjoy the island
too. We want you to enjoy the island too.
Mr. Holt: I appreciate the County being off on Friday to allow
me to do that.
Chair Asing: Thank you.
Mr. Holt: Thank you.
Chair Asing: With that, I would like to call the meeting back to
order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Can I have a motion to receive?
Mr. Chang moved to receive C 2009-281 for the record, seconded by Mr. Kaneshiro,
and unanimously carried.
COUNCIL MEETING • - 9 - • Au st 19 2009
~ ,
Chair Asing: Next item please?
ERNESTO PASION, DEPUTY COUNTY CLERK: We are back on page 1.
Communications for receipt. Communication C 2009-277, communication C 2009-
278, communication C 2009-279, and on page 2, communication C 2009-280
C 2009-277 Communication (07/14/2009) from the Chief, Engineering
Division, transmitting for Council consideration a Resolution establishing a
15 m.p.h. speed limit for the entire length of the Iwipolena Road Extension within
the Kekaha Residential Unit 4 Subdivision: Mr. Chang moved to receive
. C 2009-277 for the record, seconded by Mr. Bynum, and unanimously carried.
C 2009-278 Communication (07/24/2009) from the Director of Personnel, ~
transmitting for Council information, the fourth quarter reports (April-June 2009)
relative to vacancies, established positions, new hires, reallocations, and
promotions: Mr. Chang moved to receive C 2009-278 for the record, seconded by
Mr. Bynum, and unanimously carried.
C 2009-279 Communication (07/29/2009) from Councilmember Derek S.K.
Kawakami, providing written disclosure regarding his oral declaration at the
July 22, 2009 Council Meeting of a possible conflict of interest on communication
C 2009-253 and Proposed Draft Bill No. 2321 (relating to plastic bag reduction),
because of his family's involvement in a retail establishment at which he is
employed: Mr. Chang moved to receive C 2009-279 for the record, seconded by
Mr. Bynum, and unanimously carried.
C 2009-280 Communication (07/31/2009) from the Director of Finance,
transmitting for Council information the Period 12 Financial Reports -Statement
of Revenues as of June 30, 2009: Mr. Chang moved to receive C 2009-280 for the
record, seconded by Mr. Bynum, and unanimously carried.
Chair Asing: Next item please?
Mr. Pasion: Next item is communication for approval which is
communication C 2009-282.
C 2009-282 Communication (06/30/2009) from the Chief of Police, requesting
Council approval to enter into a software maintenance agreement (with Priority
Dispatch Corporation of Salt Lake City, Utah) for two (2) software programs that
the Radio Dispatchers are trained to use when handling medical E-911 calls, and to
indemnify Priority Dispatch Corporation as stated in the service agreement:
Mr. Kawakami moved to approve C 2009-282', seconded by Mr. Chang, and
unanimously carried.
Chair Asing: Next item please? "
COUNCIL MEETING. - 10 - • August 19, 2009
Mr. Pasion: The next item is another communication for
approval, C 2009-283.
C 2009-283 Communication (07/23/2009) from the Fire Chief, requesting
Council approval to establish one (1) Temporary As Needed (TAN) operator position
for the newly acquired brush truck assigned to Hanapepe Fire Station:
Mr. Kawakami moved to approve C 2009-283, seconded by Mr. Chang, and
unanimously carried.
Chair Asing: Next item please?
Mr. Pasion: The next item is a communication for approval.
Communication C 2009-284.
C 2009-284 Communication (07/31/2009) from the Executive Assistant,
Kauai County Housing Agency requesting Council approval of the following:
1) the repurchase of Hookena at Puhi Unit No. 602, located at
2080 Manawalea Street, Lihu`e, Hawaii, for $277,690.00;
2) the leasehold resale of Hookena at Puhi Unit No. 602 for $199,900.00;
and
3) authorization of the County Clerk to sign legal documents related to
the repurchase and resale transactions:
Mr. Chang moved to approve C 2009-284, seconded by Mr. Bynum, and
unanimously carried.
Chair Asing: Next item please?
Mr. Pasion: The next is a communication for approval.
Communication C 2009-285.
C 2009-285 Communication (07/31/2009) from Beth Tokioka, Executive
Assistant to the Mayor, requesting Council approval to accept and expend $4,000.00
from the National Oceanic Atmospheric Administration (NOAA) National Marine
Sanctuary Program to the County of Kauai to initiate a "Preserve America"
community project to frame and display six (6) to eight_(8) historic documents for
public viewing and enjoyment: Mr. Kaneshiro moved to approve C 2009-285,
seconded by Ms. Kawahara, and unanimously carried.
Chair Asing: Next item please?
Mr. Pasion: On the top of page 3 is a communication for
approval.
C 2009-286 Communication (07/31/2009) from the Executive Assistant,
Kauai County Housing Agency requesting Council approval of the following:
1) the repurchase of 4876-B Nunu Road, Kapa`a, Hawaii 96746 for
$166,900.00;
IL MEETIN • - 11 - • Au st 19 2009
COUNC G gu ,
2) the leasehold resale of 4876-B Nunu Road, Kapa`a, Hawaii 96746 for
$201,500.00; and
3) authorization of the County Clerk to sign legal documents related to
the repurchase and resale transactions:
Mr. Chang moved to approve C 2009-286, seconded by Mr. Bynum, and
unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The next matter on page 3 is communication
C 2009-287. J
C 2009-287 Communication (08/03/2009) from the Housing Director,
requesting Council approval of the following:
1) the purchase of 4914 Aliali Place, Kapa`a, Hawaii 96746 for
$213,741.00;
2) the leasehold resale of 4914 Aliali Place, Kapa`a, Hawaii 96746 for
$201,500.00; and
3) authorization of the County Clerk to sign legal documents related to
the repurchase and resale transactions:
Mr. Chang moved to approve C 2009-287, seconded by Mr. Bynum, and
unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: On page 3 communication C 2009-288.
C 2009-288 Communication (08/13/2009) from Council Chair Bill "Kaipo"
Asing, requesting Council approval of the following:
1) a proposed schedule relating to the County Auditor selection process;
2) appointment of a 3-member Selection Committee to screen applicants;
and
3) deadlines and dates for receiving applications, screening of
applications, executive session interview of finalists, and final adoption
of a resolution appointing the auditor:
Chair Asing: What I would like to do is just explain a little bit.
You know, based on the overwhelming response from the community, the residents
of Kauai voted to establish the Office of the County Auditor in 2008. In order to
comply with the Charter, the Council has begun the process to select the County
Auditor. According to the Charter, the Office of County Auditor will be established
within the legislative branch. The duties of the auditor is to conduct or cause to
conduct independent annual and bi-annual of all County funds and accounts to be
considered by a Certified Public Accountant or firm conduct performance audits of
funds, programs, and operations of any agency or operation of the County as
requested by the Council by resolution. And also conduct follow up audits and
monitoring of compliance with audit recommendations by audited entities. So what
we have done is we did check with other islands and the Board of Water Supply in
their method of picking the... as an example, the engineer for the director for the
Board of Water Supply, the Police Department. We also checked with the Big Island
who just went through the picking of the auditor there, and so the process that we
COUNCIL MEETING. - 12 - • August 19, 2009
are following is a combination of all of those entities. We are trying to find a good,
fair method, and that is the reason we are using the method that we are using to
select the auditor. With that, Councilmember Kaneshiro?
Mr. Kaneshiro: You know, looking at this, I would recommend, in
fact that the three (3) member selection committee be... to screen the applicants
would consist of the Chair, the Vice Chair, and also the Chair of Public
WorkslElderly Affairs. The reason for that is that Public Works is... the Public
Work's Department is one of the largest departments in the County, so it would be
prudent to at least have the Chair of Public Works Committee sit on this selection
committee also, so that would be my recommendation. And what they would do is
they will screen the resumes and provide the names to the Council, to the full
Council of the three (3) finalists after they have gone through this process, come
before, and give the full the Council, you know, who will interview the three (3)
finalist, and finally make a final selection via a resolution. So, you know, in
discussion, I thought this might be the procedure that we could follow and use and
in doing so, you know, we fall within the HRS 92-2.5(b-la and b), so we will also be
meeting those requirements under the HRS. So, you know, for discussion purposes,
I think, you know, that would be the way I think perceive maybe perhaps, so we
could take this up and (inaudible).
Chair Asing: Can I have a second?
Ms. Kawahara: Second. I think it is very logical and well presented.
Mr. Kaneshiro: Mr. Mickens I guess wanted to say something.
Chair Asing: With that, Glenn?
There being no objections, the rules were suspended.
GLENN MICKENS: Thank you Kaipo. For the record, Glenn Mickens. In
your testimony, Kaipo, I believe I heard you mention performance audit. Does that
have anything to do with the performance audit that you guys okayed the $500,000
for maybe five (5) years ago?
Chair Asing: Pardon me. I am sorry.
Mr. Mickens: You mentioned, I believe in your testimony,
performance audit in this thing. I am not sure I understand... over the years, I have
never seen you guys have to put this out or have a committee to decide who is going
to be on this.
Chair Asing: It is unusual because this is the first time we are
doing this.
COUNCIL MEETING • - 13 - • Au st 19 2009
~ ,
Mr. Mickens: Right.
Chair Asing: We are having an auditor for the legislative branch
and we have never had that before. So what we tried to do was look elsewhere and
we did look at the Big Island. The Big Island, I believe, two (2) years ago, did
establish the Office of the Auditor, so we are kind of following their process and this
is the process that they have used, and we think it is a good process. We also
checked with the Department of Water on the process they used. We checked with
the Police Department on the method they used, and we took a kind of a
combination of all of that and that is the reason we are using this method.
Mr. Mickens: In the past, I never saw any problem with the
way... there weren't that many auditors I believe... when you had an auditor come
in, each year I believe...
Chair Asing: This is permanent. It is not a temporary thing. I
mean you voted for it.
Mr. Mickens: Right, right.
Chair Asing: You know, it is a Charter amendment that we are
following.
Mr. Mickens: Then my question was, is this related to the
moneys, the $500,000?
Chair Asing: No.
Mr. Mickens: You mentioned performance audit. This is going to
be a true performance audit then that this office will come in?
Chair Asing: It is the Office of the Auditor. We will be hiring an
auditor, he will have an office here, and he will be performing audits. He would
have a staff to help him do his work, so there are a lot of things that the auditor will
be doing.
Mr. Mickens: But it is .separate from the moneys that you
appropriated for a performance audit.
Chair Asing: Exactly.
Mr. Mickens: Okay, that is where my confusion was in this. Okay,
thank you Kaipo.
Chair Asing: Thank you. With that, I'd like to call the meeting
back to order and I believe we did not...
COUNCIL MEETING. - 14 - • August 19, 2009
Mr. Kaneshiro: Also, I wanted to make a clarification on the
attachment of this communication. If you look at the communication in the back
pages of 2009-288, on item c, it is stated that the ad was placed in the Honolulu
Star Bulletin and not the Honolulu Advertiser. So I want to make it clear that it
was placed in the Honolulu Star Bulletin and not the Honolulu Advertiser. It is just
for clean up because I guess if you look at the communication in the back pages, it
mentions the Honolulu Advertiser just for clarification.
Chair Asing: And the Garden Island.
Mr. Kaneshiro: But that wasn't a mistake, that was correct.
Chair Asing: Go ahead.
Ms. Kawahara: Chair, thank you Chair. Could I ask if you would
also address and looked at the way that the State does their hiring practices when
you had gone out to see how other people had done it?
Chair Asing: Yes.
Ms. Kawahara: Okay, because I know we use a weighting kind of
thing and a rating thing, and it seems to work really well, so I was wondering if
that was going to be... how it would be done with the weighting factors. Okay,
thank you.
Mr. Kaneshiro: So with that, if I could Mr. Chair, I want to make a
motion to approve the schedule for the County Auditor selection process, deadlines
and dates, and the three (3) member screening committee consisting of the, again,
Council Chair, Council Vice Chair which would be Mr. Furfaro and the Chair of the
Public Works/Elderly Affairs Committee which would be Mr. Bynum.
Mr. Kaneshiro moved to approve C 2009-288 (approving the schedule for the County
Auditor selection process, deadlines and dates, and appointing the three (3) member
screening committee consisting of the Council Chair, Council Vice Chair, and the
Public Works/Elderly Affairs Committee Chair), seconded by Mr. Kawakami.
Chair Asing: Any further discussion? Councilmember Bynum?
Mr. Bynum: I appreciate the work that the Chair has done to set
up this process. I think it is a good one and, you know, just to clarify for Glenn and
any other members of the public. In the past, the Council has funded maybe money
for a consultant to do an audit. This is what the voters asked us to do is to create an
office, a permanent Office of the County Auditor under the legislative branch which
will supervise financial audits, but also do performance audits based on request I
think from the Council, and this is a permanent position. In this year's budget,
. COUNCIL MEETING. - 15 - ~ Au st 19 2009
~ ,
there is funding for the position for staff and a budget because that staff may choose
to use the outside consultants for whatever performance audits that the Council
chooses. So it is a very significant change in terms of providing accountability to the
public for the work that is done by the County of Kauai and it is something that I
fully support, and I think everybody here does.
Chair Asing: Thank you. Any further discussion? Councilmember
Kawakami?
Mr. Kawakami: Just a comment and, you know, correct me if I am
wrong, but I guess historically, how many performance audits have been called,
maybe one performance audit, and it is in our power to enact audits. I mean that is
the Council's duty, so, I mean, like you said, this is what the voters voted on. Along
with this auditor and a salary, there is going to be a number of staff, but, you know,
my question pertains to the process. And say hypothetically, we only have three (3)
applicants, does that mean that the work of this committee is done because it just
goes up to three (3) finalists or do they still screen them, and come back with a _
recommendation as to, you know, like the weighing factor, you know, of the three (3)
finalists seem to perform better or...
Chair Asing: Let me just do it this way. I think we would have to
kind of play that by ear, but I would think that the screening committee would like
to sit down and even if it is three (3) at least talk, discuss the applicants and
possibly when they bring it to the full Council, at least the Council will have a little `
more information.
Mr. Kawakami: Thank you.
Chair Asing: Any further discussion? Councilmember Bynum?
Mr. Bynum: Yes, just one further clarification. This was placed
on the Charter by Council resolution that was introduced by Councilmember
Furfaro and I believe unanimously carried. So the initiative of this came from the
Council based I think on, you know, input from the community, former
Councilmembers over the period of time, so I just want to make that clarification.
Chair Asing: Thank you.
Ms. Kawahara: Chair, is it okay if I do some submit the rating
factors type of paperwork that we use at the. State?
Chair Asing: Sure.
Ms. Kawahara: Because I found it very useful.
Chair Asing: Okay, that would be helpful.
COUNCIL MEETING - 16 - ~ August 19, 2009
Ms. Kawahara: Okay, thank you, so I will be submitting that at a
later date. Thanks.
Chair Asing: Any further discussion? If not, all those in favor
say aye?
The motion to approve C 2009-288 and appoint the 3-member screening committee
was then put, and unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The next matter for Council approval is a LEGAL
DOCUMENT: C 2009-289.
LEGAL DOCUMENTS:
C 2009-289 Communication (07/28/2009) from the Emergency Management
Officer, requesting Council approval to enter into a license agreement between the
County of Kauai and Bank of Hawaii "Trust Services" which extends the lease of
the County's 800 MHz radio site located on a site known as Kukuiolono Park in
Kalaheo which expired on June 30, 2009, and automatically extends the lease for
three (3) years until June 30, 2012 as follows:
• First Amendment of License Agreement:
Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-289, seconded by
Mr. Kawakami.
' Ms. Kawahara: Chair?
Chair Asing: Yes.
Ms. Kawahara: I do have discussion, but I was hoping that a
representative was going to be here from the...
Chair Asing: Do we have anyone here?
Mr. Nakamura: We don't Council Chair, but what we could do is we
could see if we can locate somebody from the Civil Defense Agency and move this to
the end of the agenda and go to the next matter.
Ms. Kawahara: Thank you.
Chair Asing: I will move this to the end of the agenda and get
them here.
Ms. Kawahara: Thank you.
IL MEETI • - 17 - • Au st 19 2009
COUNC NG gu ,
Chair Asing: Thank you.
Mr. Nakamura: The next LEGAL DOCUMENT for approval on
page 4 is attached to communication C 2009-290.
C 2009-290 Communication (07/29/2009) from the Executive on
Transportation, Transportation Agency,. transmitting for Council approval a
recommendation to indemnify the landowners to establish a bus stop on Island
School's property as follows:
• Right-of--Entry Agreement by and between Island School and the County of
Kauai for the Kauai Bus to establish a bus stop on their property:
Mr. Chang moved to approve LEGAL DOCUMENT: C 2009-290, seconded by
Mr. Kaneshiro.
Chair Asing: Any discussion?
Mr. Chang: Yes Mr. Chair.
Chair Asing: Yes, go ahead.
Mr. Chang: I'd like to thank Janine Rapozo and her staff. I have
had some calls from some concerned parents from Island School. The bus presently
stops at the Kauai Community College in front of the one stop center which I
believe... but there is construction going on for the new located book store, so with
that construction, the children are having a hard time crossing the campus to get to
get to Island School. So consequently, many of them have to walk along side of the
road, and that is minimum of about 10 to 12 minute of a walk. So there are many,
many parents... I know Charlie Cowden up from the northshore and many on the
westside really are very appreciative of this bus stop and especially in light of
,coming around the corner to our winter season. You know, I think it would be great
for in climate weather that the children get dropped off right in the front of Island
School, so I just want to take this time to thank our Transportation Department,
Janine Rapozo, and her staff for making this happen.
Chair Asing: Thank you.
Mr. Chang: Thank you.
Chair Asing: Any further discussion? If not, all those in favor
say aye.
The motion to approve LEGAL DOCUMENT: C 2009-290 was then put, and
unanimously carried.
Chair Asing: Next item please?
COUNCIL MEETING. - 18 - • August 19, 2009
Mr. Nakamura: The next LEGAL DOCUMENT is attached to
communication C 2009-291.
C 2009-291 Communication (08/03/2009) from the Environmental Services
Management Engineer, Public Works, Solid Waste Division, requesting Council
approval of the right-of--entry agreement and indemnification of Kekaha Agriculture
Association as follows:
• Right-of--Entry Agreement (to permit an area for the County and its
contractors to conduct beverage container redemption operations):
Mr. Bynum moved to approve LEGAL DOCUMENT: C 2009-291, seconded by
Ms. Kawahara, and unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The next matters are CLAIMS.
CLAIMS:
C 2009-292 Communication (07/30/2009) from the County Clerk,
transmitting a claim filed against the County of Kauai by Peggy Ellenburg-Pettler
on behalf of Miriam Pettler for medical expenses, pursuant to Section 23.06,
Charter of the County of Kauai: Mr. Kaneshiro moved to refer C 2009-292 to the
County Attorney's Office for disposition and/or report back to the Council, seconded
by Mr. Bynum, and unanimously carried.
C 2009-293 Communication (08/04/2009) from the County Clerk,
transmitting a claim filed against the County of Kauai by Kira Seabury for medical
expenses, loss of pay, and pain and suffering, pursuant to Section 23.06, Charter of
the County of Kauai: Mr. Kaneshiro moved to refer C 2009-293 to the County
Attorney's Office for disposition and/or report back to the Council, seconded by
Mr. Bynum, and unanimously carried.
COMMITTEE REPORTS:
ECONONIIC DEVELOPMENT/HOUSING CONIlVIITTEE REPORT:
A report (No. CR-EDH 2009-08) submitted by the Economic
Development/Housing Committee, recommending that the following be received for
the record:
"EDH 2009-6 Communication (7/13/2009) from Dickie Chang,
Committee Chair, requesting that the Director of Economic Development be
present to provide an update on the Kauai Marathon,"
Mr. Kaneshiro moved for approval of the report, seconded by Ms. Kawahara, and
unanimously carried.
• •
COUNCIL MEETING - 19 - August 19, 2009
PARKS/TRANSPORTATION COMNIITTEE REPORT:
A report (No. CR-PKT 2009-02) submitted by the Parks/Transportation
Committee, recommending that the following be received for the record:
"PKT 2009-1Communication (7/23/2009) from Randy Wichman (on
behalf of the Board of Directors of Hui Malama O Kaneiolouma), requesting
agenda time to brief the County Council with a historical overview of the
Po`ipu Beach Mauka Preserve, Kaneiolouma Heiau Complex,"
Ms. Kawahara moved for approval of the report, seconded by Mr. Bynum, and
unanimously carried.
Chair Asing: Next item please?
Mr. Nakamura: The matter on page 5 is a resolution which is
Resolution No. 2009-51.
RESOLUTIONS:
Resolution No. 2009-51, ~ RESOLUTION ESTABLISHING SPEED
RESTRICTION FOR IWIPOLENA ROAD, WAIMEA DISTRICT, COUNTY OF
KAUAI: Mr. Kawakami moved for approval of Resolution No. 2009-51, seconded by
Mr. Chang, and carried by the following vote:
FOR ADOPTION: Bynum, Chang, Kaneshiro,
Kawahara, Kawakami, Asing TOTAL - 6,
AGAINST ADOPTION: None TOTAL - 0,
EXCUSED & NOT VOTING: Furfaro TOTAL - 1.
Chair Asing: Can we have the County Attorney up please?
There being no objections, the rules were suspended.
EXECUTIVE SESSION: Pursuant to Haw. Rev. Stat. ("H.R.S.") §92-7(a), the
Council may, when deemed necessary, hold an executive session on any agenda
item without written public notice if the executive session was not anticipated in
advance. Any such executive session shall be held pursuant to H.R.S. §92-4,
H.R.S. §92-5(a), and Kauai County Charter §3.07E. (Confidential reports on file in
the County Attorney's Office and/or the County Clerk's Office. Discussions held in
Executive Session are closed to the public.)
ALFRED B. CASTILLO, JR., COUNTY ATTORNEY: Good morning Council
Chair, Councilmembers, for the record Al Castillo, County Attorney at your service.
Mr. Bynum: Good morning.
Ms. Kawahara: Good morning.
Mr. Castillo: So just for clarification, are we on page 5?
COUNCIL MEETING - 20 - • August 19, 2009
Mr. Chang: Yes.
Mr. Castillo: Okay, so this is in regard to... I am requesting
guidance from the Council Chair.
Chair Asing: Yes, go ahead.
Mr. Castillo: And the reason why I am requesting guidance is
because I have 1, 2, 3, 4, 5 matters under executive session and basically all of the
wording are basically the same, so I would like permission to combine all of this and
read it at all one time.
Chair Asing: Please do.
Mr. Castillo: Okay, thank you. This is in regard to ES-394, ES-
395, ES-396, ES-397, and ES-398.
ES-394, ES-395, ES-396, ES-397, and ES-398:
Pursuant to Haw. Rev. Stat. §§92-4 and 92-5(a)(4) and (8); and Kauai
County Charter §3.07(E), the purpose of this executive session is to consult
with the Council's legal counsel to receive legal updates, overviews, and
recommendations for purposes of obtaining Council approval of proposed
settlement of a workers' compensation claim, and evaluate employees' ability
to return to work. This deliberation and/or decision making involves matters
that require the consideration of information that must be kept confidential
as, inter alia, it concerns significant privacy interests. The significant
privacy interests relate to a medical history, diagnosis, condition, treatment,
or evaluation and which, pursuant to state or federal law, including Health
Insurance Portability and Accountability Act, are protected from disclosure.
The meeting was called back to order, and proceeded as follows:
Chair Asing: Before I call for a motion to move into executive
session, I am going to take a short recess because I believe we may have someone
here for the item that Councilmember Kawahara wanted to handle, so we will take
a short five (5) minute break.
Mr. Castillo: Thank you.
There being no objections, the Chair called for a recess at 9:55 a.m. The meeting
was called back to order at 10:05 a.m., and proceeded as follows:
Chair Asing: With that, Alton, can you come up? Peter, you
want to read that item again please?
COUNCIL MEETING • - 21 - ~ Au st 19 2009
~ ,
Mr. Nakamura: Mr. Chair, we are back on page... I am sorry, on a
LEGAL DOCUMENT on the bottom of page 3 of the Council's agenda which is
communication C 2009-289.
C 2009-289 Communication (07/28/2009) from the Emergency Management
Officer, requesting Council approval to enter into a license agreement between the
County of Kauai and Bank of Hawaii "Trust Services" which extends the lease of
the County's 800 MHz radio site located on a site known as Kukuiolono Park in
Kalaheo which expired on June 30, 2009, and automatically extends the lease for
three (3) years until June 30, 2012 as follows:
• First Amendment of License Agreement.
Chair Asing: Thank you. With that, maybe you want to explain
the program first.
There being no objections, the rules were suspended.
ELTON USHIO, CIVIL DEFENSE: This lease is for one of the tower sites
for our... I am sorry, Elton Ushio, I am with the Civil Defense. I am the Grant
Coordinator currently acting as Plans and Operations Officer. Okay, this lease
agreement is for one of our tower sites for our 800 MHz radio system and while I
haven't personally worked in the administration of this particular lease or in this
area, I know that we have a number of sites and a number of agreements for our
various towers around the island.
Chair Asing: Okay, thank you.
Ms. Kawahara: Thank you. Thank you Chair Asing. Thank you
Elton for coming over. The reason why I brought... ultimately, I am going to
approve... I am going to vote to approve this, but I did have questions. It came up
during budget and one of the question was... I understand that this is one of the
backbones of your radio service. You do have several and in the budget, though, we
had looked at the amount that was being paid for that particular site and it seems it
is about 69% of the whole budget for these MHz and radio site leases, so it just
stuck out a little bit, so I was wondering if there weren't negotiations because it
came up on the 30+x, and it was... it is going to be ultimately renewed. If there was
a way that I would send a communication or something about finding out about
other sites since it was so high.
Mr. Ushio: Two (2) prong question. The first one about the
negotiations. My understanding is that on the County's end, negotiations were
handled via our Civil Defense Administrator and our Director of Finance on the
County's behalf with the... I believe Bank of Hawaii was negotiating on the part of
the landowner. As far as the second part about alternate sites, I would imagine
that would be an issue that I would have to bring up for discussion with our
Administrator and our Telecom Administrator as well, and as well as the various
COUNCIL MEETING - 22 - ~ Au st 19, 2009
public safety and different user agencies that use the 800 MHz radio system and the
contractor that provides the service.
Ms. Kawahara: Thank you and it is just a three (3) year contract is
what I am reading, and, again, because it just pops out because the monthly rate for
this particular site is more than the yearly rate for three (3) other sites, and they
are also the 800 MHz sites mostly. So thank you for coming in and I will just send a
communication to ask about maybe looking at alternate sites and if it is just the
reason is because there is no other way and other place to put it, I would just like to
see that. Thank you very much.
Mr. Ushio: Thank you.
Chair Asing: Thank you. With that, I'd like to call the meeting
back to order.
The meeting was called back to order, and proceeded as follows:
Chair Asing: I believe we have a motion and a second. Any
further discussion? Councilmember Bynum?
Mr. Bynum: Yea, just to say that I would be interested in
understanding that communication because these sites... this site seems to be ten
(10) times what... more than ten (10) times what some of the other sites lease is and
I can't recall what the answer was, so I appreciate that we will get a
communication.
Chair Asing: Any further discussion? If not, all those in favor
- say aye?
The motion to approve LEGAL DOCUMENT: C 2009-289 was then put, and
unanimously carried.
Ms. Kawahara: Thank you.
Chair Asing: With that, what I would like to do is have a motion
to move into executive session as stated by the County Attorney.
Mr. Bynum moved to go into executive session on items ES-394, ES-395, ES-396,
ES- 397, and ES-398, seconded by Mr. Chang, and unanimously carried.
Chair Asing: We are going to wait until the parties arrive for the
executive session, so we will be in recess... why don't we just... why don't we do this,
we will be in recess until 1:30, and at 1:30, we will take up the public hearing of two
(2) items. Thank you.
COUNCIL MEETING ~ - 23 - ~ Au st 19 2009
There being no objections, the Chair called for a recess at 10:10 a.m. The meeting
was called back to order at 11:42 a.m., and proceeded as follows:
ADJOURNMENT:
There being no further business, the meeting was adjourned at 11:42 a.m.
Respectfully submitted,
PETER A. NAKAMURA
County Clerk
/lki