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HomeMy WebLinkAbout 02/16/2011 COMMITTEE OF THE WHOLEMINiJTES COMMITTEE of the WHOLE February 16, 2011 A meeting of the Committee of the Whole of the Council of the County of Kauai, State of Hawaii, was called to order by Councilmember Jay Furfaro, Chair, at 3371-A Wilcox Road, Lihu`e, Kauai, on Wednesday, February 16, 2011 at 1:21 p.m., after which the following members answered the call of the roll: Honorable Jay Furfaro Honorable Derek S.K. Kawakami Honorable Tim Bynum Honorable Dickie Chang Honorable Mel Rapozo Honorable JoAnn A. Yukimura EXCUSED: Honorable Nadine K. Nakamura The Committee proceeded on its agenda item as follows: Bill No. 2395 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 3, THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE SALARIES OF COUNTY OFFICERS AND EMPLOYEES [This item was deferred.] JAY FURFARO, Committee Of The Whole Chair: We are going to go ahead and open after this lunch break, and may I have the item for Committee of the Whole read please? Laurie Chow, Senior Clerk Typist: Bill No. 2395, a bill for an ordinance to amend Chapter 3, Kauai County Code 1987, as amended, relating to the Salaries of County Officers and Employees. Mr. Furfaro: Thank you very much. MEL RAPOZO: Move to approve. Mr. Furfaro: May I have a second? DICKIE CHANG: Second. Mr. Rapozo moved for approval of Bill No. 2395, seconded by Mr. Chang. Mr. Furfaro: Thank you. And then before I open for public testimony let me just go over a quick summary here. This actually reaffirms that the salary amounts are in fact vested with the Salary Commission. What is not clear, and I don't see the County Attorney here, I will have a question about accepting it or how we reject it, but the reality is very clear to me that it takes five members to reject the recommendations of the salary commission, but I'm going to need some clarity on can we in fact approve or reject just portions. The item here relists all of those individuals that are covered by the salary recommendations and it adds the Administrator of Boards and Commissions. It touches on the review process and I will and if I don't get to it today I will have an amendment that talks about the Boards and Commissions and the Council when it's time for us to review our Directors, both Planning, Liquor Commission, Police, Fire, Civil Service and Council that this amendment will redirect Section 2, where the body should schedule a review and that the body should do the blended review as the council and the boards are the authority to do those reviews. On that note I am going to suspend the rules to see if we can take public testimony at this time and Mr. Stoessel first of all let me, I know you came this. morning and I'm apologetic but I'm glad to have you here so... There being no objections, the rules were suspended. HOR,ACE STOESSEL: Thank you Mr. Chairman. We don't feel like we were cheated this morning, it was just a long wait. Mr. Furfaro: It was a good discussion yes, thank you. Mr. Stoessel: My testimony will take more than three minutes and less than six. I would like to present it all at one time if I may? Mr. Furfaro: You have an opportunity to do that. We will run your time right through. Mr. Stoessel: Thank you. I believe you have received from the Clerk's Office, a copy of a communication from... Mr. Chang: Can you introduce yourself for the record. Mr. Stoessel: Horace Stoessel. Mr. Chang: Thank you. Mr. Stoessel: Am I correct in thinking that you received a copy of a communication from the Personnel Director? Ms. Chow: Yes. Mr. Stoessel: I would like to begin by asking you to look at two statements in that document. First on the second page at the bottom of the page under scope, it says this policy applies to all non-elected Department Heads, Deputies and Executives covered by section 3-2.1 of the Kauai County Code within the Executive branch of the County of Kaua`I, and then to go back to the first page which is a cover letter, at the bottom of the last paragraph is this sentence, Legislative appointees covered by Section 3-2.1 of the Kauai County Code may choose to follow these procedures to meet the requirements of the Salary Ordinance proposal. I asked you to look at these statements because I think they clearly indicate that participation and the process of performance evaluation, administered by the Director of Personnel is mandatory for members of the Executive Branch and voluntary for members of the Legislative Branch. I also wanted you to look at it because I think it's a good introduction to the one point I want to make today which is that establishing a system of performance-based pay is the kuleana of the Mayor, not the Salary Commission and not the Council and if you (inaudible) into the beginning of this process it's very clear that not only this communication from the Personnel Director but also the communication that came to the Council from the Salary Commission well put together by the Mayor's Executive Assistant and members of the Personnel Department. This system from the beginning has been a product of the administration and if this issue of performance evaluation had been handled right in the beginning the Salary Commission would not have assumed 2 that it had the responsibility or the authority to create a system of performance- based pay. And no one would have assumed that the Council had the responsibility or the authority to make such a system apart of the Salary Ordinance. When you add the information from the Personnel Director to the information I presented in previous testimonies, I believe it is clear that by taking three actions the council can do much to dispel the confusion that has plagued the executive salary process for four years. First and foremost we move and I need to say this testimony is working from the bill as it stood at the last meeting. First and foremost to remove Section B from Bill 2395 and do not assume that you need the legislative system of pay for performance. The Mayor already has the authority to institute such a system so an ordinance is not necessary. Second, ask the Salary Commission to limit the content of its salary resolutions to salaries. Charter Section 29.03 requires the commission to present only its salary findings by means of a resolution. Third, to inform the Personnel Director, the Mayor and the Salary Commission as to whether or not the Legislative Branch chooses to participate in a process of performance evaluation administered under Mayoral authority. Going back to where we started that statement in the document from the Personnel Director. I believe I'm correct in saying that the council has never notified people in the administration as to whether or not you choose to participate in this performance evaluation system that is currently being administered by the Personnel Director. I petition the council to take these three actions. If you need for me to repeat them I will. I am open to any responses you may have. Mr. Furfaro: Mr. Stoessel I'm going to recognize Council member Bynum. Mr. Bynum the floor is yours. TIM BYNUM: The third point was that the Council should inform the Administration whether we intend to use their evaluation process? Mr. Stoessel: Whether you choose to. Mr. Bynum: Choose to. Mr. Stoessel: That's the word he used. Mr. Bynum: Okay so like a lot of things in Government nothing is easy and so I'm going to try to make sure... Mr. Stoessel: I'm having trouble hearing you. Mr. Bynum: I'm sorry. Like a lot of things in Government nothings easy and so I'm .going to try to sort out in my mind with you for a minute your testimony and some questions that I have and just because I value your input. The first question that I'm struggling with now is what authority does the Salary Commission have? You're saying that they have the authority to set salaries but not to require an evaluation process? Mr. Stoessel: Yes I'm also saying that that's what the Charter says. Mr. Bynum: Right and so that's one question that's out there. Mr. Stoessel: Okay. Mr. Bynum: But regardless of the answer to that question, the Salary Commission did say in their salary resolution these categories will get this evaluation done in a certain manner right? Whether they had the authority or not I 3 certainly was under the assumption that you know that was an expectation and I think that expectation was consistent with what the Community would want, that people that make six figures should have regular evaluations. Then the other question is, if the salary commission does have that authority what... when they say that in their resolution, here you shall do this, is that the law? Is that advice? Is it guidelines? What weight does that have? So it's like two stage questions, do they have the authority at all and if they do, what is the weight of what they put out there? So I believe the personnel department gave us procedures and said to the Council, respecting our division of power, you can adopt this if you choose to and we may or may not choose to. So what I'm going to ask the chair to do at the end of when we call the meeting back to order is, if we can between what you presented in your testimony and the questions I'm asking, if we can send questions to the County Attorney to try to get a legal opinion on some of those. Does the Salary Commission have the authority to require these? Does the Council have the authority to do it? I mean I'm getting a longer list of questions as we delve into this. Mr. Stoessel: Good. Mr. Bynum: You know and I want to get those answered so we can come up with a system that we all agree is appropriate. So am I on the right track here Mr. Stoessel? Mr. Stoessel: Getting satisfactory answers to your questions, of course. Mr. Bynum: Because as I sit here now I don't really want to follow your first recommendation about removing section B, because if the council has the authority I think it's reasonable to say that high level personnel in the county should get regular evaluations and if we have the authority to require that I'm fine with the council requiring that but I need to get those opinions. But I do, I think I understand you're... what you're saying and I do agree with part of your I think as I sit here today because I'm trying to keep an open mind with the part of your testimony that says " We should avoid multi-year raises in one salary resolution in the future" that clearly because we had this intention and idea but the world changed on us, and we had to modify it so hey, salary commission people are dedicated and they can meet every year and give us necessary if they want to do that. I understand their intent was their belief and I agreed with it at the time that our department heads were paid too little and needed to get a substantial bump to make us competitive with the rest of the job opportunities that are out there but it clearly caused some confusion and difficulties to have that multi-year in one salary resolution. Thank you very much for your testimony. Mr. Stoessel: I would like to say one or two things in response to the questions you raised? Mr. Furfaro: You go right ahead Mr. Stoessel, go right ahead. Mr. Stoessel: I believe if you go back to 2007 where all of this originated, prior to 2007 the Salary Commission would present salary figures and any suggestions it had for other matters in the Salary Ordinance and the Council made the final decision about both. Now that changed when the Charter was amended and the Salary Commission which by this Charter Amendment was authorized to set salaries and that's all it was authorized to do: continue the practice that has gone on before by including these non-salary provisions in the Salary Ordinance. That's why I suggested as one of the actions I would like to see this council take is to ask them to stop doing that. The main reason for doing it is that the council's relationship to these two different kinds of material is different. 4 You have the absolute authority in one case and then the other case you only have a conditional authority with regards to the salaries. I think they continued to copy what had been done in the past without stopping to ask how does this Charter Amendment change the way things work, and I guess that's all I need to say about that. Mr. Bynum: So I have a follow up question? Mr. Furfaro: Go ahead Mr. Bynum. Mr. Bynum: So if the council were to pass an ordinance that said these people have to have these... then the Salary Commission wouldn't need to do that whether they have the authority or not. Do you think the Council has the power to pass an ordinance and require that evaluations occur? Mr. Stoessel: My view of it would be that the Council could pass a general provision as it has done in the past in various forms. What I indicated in my previous testimony is that, if you're talking about an actual system like the one that is represented in this document from the personnel director or what I've indicated is if you go that route you come up against a State Law, you come up against the Charter. I listed six reasons why I thought the council did not have the authority to do that, but I think the council could pass a general if you feel the need to a general provision that says performance evaluation must be done. That would be my view of that. Mr. Bynum: Thank you Mr. Stoessel and I hope we follow up in getting advice from our council about some of the issues that you raised so thank you very much. Mr. Stoessel: Certainly. Mr. Furfaro: Thank you Mr. Stoessel, I will have a comment here at the end but let me see if other members... Mr. Rapozo you have the floor followed by Councilwoman Yukimura. Mr. Rapozo: Thank you. My question is because I think I agree with most of what you said. The fact that the council can I guess approve a provision and I'm not sure if you mean a resolution or an actual ordinance part of the actual salary ordinance to require. I guess I'm fighting with the separation of power issues that in fact this body is the legislative body and we are not authorized to interfere with the day to day operations of the Administration and by us saying, hey Mayor you need to do a performance evaluation on your department head, I see that as a definite cross of that separation line, I do, I just think it's his prerogative. We set the salaries or we accept the salaries set by the commission but I don't see where in the Charter we have that authority to basically tell the Mayor how to run his organization. What is your take on that? Mr. Stoessel: I don't have any problem with what you're saying. I was trying to accommodate what Mr. Bynum was asking by saying yes I think you do have a general authority. In the bill as it currently exists, let me see if this is an example. The respective appointing authority may set the starting salary and increases in salary therefore here and any figure below the established figure and so forth... that's a general provision. Mr. Rapozo: Correct. 5 Mr. Stoessel: And I do believe a council has general power but that they, the problems begin if you try to legislate something like this system that came to you from the personnel director and there's where to me you get into the separation of power. Mr. Rapozo: Right and I'm trying to understand and the way I look at it and tell me if I'm understanding it wrong but we are the respective appointing authority for our Clerk. Mr. Stoessel: Yes. Mr. Rapozo: And that's all. Mr. Stoessel: And the auditor. Mr. Rapozo: And the auditor now. Thank you. So obviously this Council and I'm asking this as a question. Do you think that this council would have the ability or authority to define the rules as they did in this memo and this policy? This isn't an ordinance. Mr. Stoessel: That's right. Mr. Rapozo: It's a policy statement and an actual... what do they call it... administrative policy and procedure. Wouldn't you agree that the better approach to performance evaluations would fall under a administrative policy versus an ordinance? Mr. Stoessel: Yes, yes and also as I mentioned at the last meeting it appears to me that this council is quite capable of conducting its own performance evaluation of the people it appoints. So on a theoretical basis I said I would like to see you tell them whether you choose to participate in this other system or not and that doesn't mean I'm advocating that. Mr. Rapozo: Right. I guess I would suggest that the Rules Committee or the Personnel Committee if you will, the H.R. Committee of this Council form an administrative policy versus an ordinance which requires so much to amend it should we need to amend you know I think and it's just my thought. Thank you very much. Mr. Stoessel: You're welcome. Mr. Furfaro: Well I'm going to ask you a question because I defer a little bit on that. I defer a little bit on that. Mr. Stoessel: On what? Mr. Furfaro: On the administrative of rules versus having something in the ordinance, and I speak from a fact that in my eight years on the council I have always participated in a review of the individual that reports to us. But I think there needs to be an amendment in this Salary Ordinance as it currently says and I think it's Section 2 or Section 3. A copy of the officer or employee's complete performance evaluation that the appointee has met or exceeded the job requirement for example and has achieved a rating of 3 points or higher on the 5 point scale for the appraisal period being reviewed. And I think in the place of Planning, the case of Liquor, in the case of Police, in the case of Fire, in the case of Civil Service and in the case of the County Clerk, this should be expanded to say prepared and done 6 annually by the body, by the body and scheduled because that's where the authority lays. It's with the body and it's like my message to the County Auditor he doesn't report to me as the Chair, he has a dotted line authority to the body. Mr. Stoessel: Right. Mr. Furfaro: And I think that needs to be expanded in this ordinance. That it clearly says, now that we have a Fire Board, and they review the Fire Chief it should be scheduled accordingly with the body. The Planning Director should be scheduled accordingly with the Planning Commission, etc... I think that needs to be in there so that we don't have this well I kind of participated within the frame of what Personnel set up for us and you know I think there needs to be an opportunity for us to digest the reviews with the Police Chief and the Commission, with the Fire Chief and the Commission, with the Council and the Clerk, you know right on down for these six boards because they don't report to the Mayor directly, they report to those commissions, and I would like to see that set in to this ordinance. Mr. Stoessel: I don't see how you can do that if you work off of this what is this Section B that came from the Personnel Director. If you affirm the authority of say Board and Commissions, and they have to go through this process that you just described, who do they report to? Mr. Furfaro: That is the other portion I want to say is very gray when it comes even to the Personnel Department. Mr. Stoessel: Exactly. Mr. Furfaro: You talk to Personnel and the first thing they'll say to you is they don't govern anything other than Civil Service. These are appointees and they should be governed by us creating a Human Resource Department that oversees those people that are Mayor's appointees selected by the Boards and Commissions where they are subject to Civil Service, they are subject to the reviews and recommendations of an H.R. Department. I think in fairness to people's performance where people know where they stand in good status, where they stand in an area that you know their board or commission expect certain improvements that a year from now you can go back and review and say hey we have so noted as a body we would like to see better control in you managing your budget as an item under the financial category that says you know this budget has been managed within the guidelines prescribed and agreed upon. If he can't operate within his budget I mean there should be some commentary that says you need to make that improvement you know and vice-versa. If we have some outstanding performance by the Planning Director, the Fire Chief, the Police Chief, they should have an opportunity to openly discuss that with the person. Now many times the Mayor is an ex-officio and he comes in to the Planning Department and discuss goals and missions and so forth, but ultimately it's the Board, it's the Commission that sets the direction and therefore they should have an annual review and I don't think you know right now the way it's defined that comes to us by the Personnel Department, that comes to us by this body saying you know this is our goal for this year you know we want to fill vacancies with competent people. We want to make sure we live within the budget guidelines set, we want to accomplish certain tasks within a period. In that review if you meet as a body because you report to the body obviously you have an opportunity to set some goals and expectations. Now when it comes to eventually disagreeing with meeting those expectations you have something that says hey we set this goal for you and one of those goals is like within a twelve month period evaluate procedures and policies as it relates to TVR, controls. It's there, it's in that review, and not that it's seven individuals doing it, 7 it's the body agreeing that's the goal and that way there's no confusion by that person that who was selected, interviewed, and appointed by that board or commission. That's where I'm coming from. AL CASTILLO, COUNTY ATTORNEY: Council Chair, for the record Al Castillo County Attorney. Excuse me for interrupting. Mr. Furfaro: Go right ahead. Mr. Castillo: I would like to direct this Legislative body to conduct its business appropriately and the reason why I'm saying that is because number one the person testifying has three minutes to provide input for this council and from what I have observed from the time that I stepped in was not only was the time for input was done and what the council has engaged in is a deliberation process and a process of the to and from borderlines into legal advice. If the council has a specific question as to the input or the opinion of a particular subject matter then that would be appropriate if it is within the bounds of the agenda item. The discussion that I have heard like I said I don't think is proper. Mr. Furfaro: Well I appreciate your caution and I do want to say that in the beginning I extended to Mr. Stoessel his entire six minutes. Obviously I feel that some of his testimony led to perhaps a disagreement in what I know as a Senior Manager of 37 years on what process should be, and I was only posing those questions because I do plan to introduce an amendment that basically said what I just said, and I wanted to know his feedback. Mr. Stoessel: May I respond to what you said? Mr. Furfaro: Sure. Mr. Stoessel: First of all I would like to see what you come up with rather than talk about anything speculating, and the other thing is that I believe is an integral part of this discussion. As you know for all of these non-elected officials, what the Salary Commission does is to set salary ceilings and what that says is that the appointing authority can raise salaries up to that level, they don't have to, but they can, and that's where the evaluation comes in. Mr. Furfaro: Absolutely. Mr. Stoessel: Because this provision is a management tool, so I'm quite content to leave it at that and say I look forward to seeing what you come up with because to me, A, it's impossible to legislate a workable and legally defensible form of performance evaluation and what I've tried to (inaudible) today is not necessary. Mr. Furfaro: Thank you Mr. Stoessel. Mr. Stoessel: Thank you. Mr. Furfaro: And I do concur because nothing in this ordinance measures somebody's time or experience. Thank you. Councilwoman Yukimura may have had questions for Mr. Stoessel. JOANN YUKIMURA: I do. Mr. Furfaro: Am I correct? 8 Ms. Yukimura: Yes, yes, I do thank you. I do want to say that I am in agreement with the Chair that it is the responsibility of the Council and the Mayor together to establish a good system of performance review of Department Heads. It's very critical to the county because the quality and performance of department heads is crucial to a well functioning county. So my question is, Section 29.01 says that there shall be a Salary Commission to establish the salary of all Council members and all officers and employees (these are the department heads). So setting the salaries of it would seem that the Salary Commission could have, it does have the parameters for the setting of the salaries. If they say that and as the Charter says the respective appointing authority may set a salary of an appointee at a figure lower, it seems to me that the salary commission could set some guidelines about how they would want to set it higher in subsequent years if they wanted to. So don't you think that's authority of the Salary Commission to require a performance evaluation system? Not saying what the evaluation system is but to require the setting of salaries when the appointing authority has the power has to be done by a performance evaluation system. Mr. Stoessel: You're getting into what you might call the administrative details at this point. My view of it is maintaining the proper distinctions among the different agencies. The Salary Commission can say for instance to a board or commission we're not going to raise the salary ceiling for this position until we hear from you what you're doing about performance evaluation, but to me that's the limit. I don't think they can order people to follow the kind of process that's involved in this document. Ms. Yukimura: Mr. Stoessel: Ms. Yukimura: Mr. Castillo: Ms. Yukimura: Mr. Castillo: And what is the basis for your legal conclusion? I beg your pardon? What is the basis for that legal conclusion? Excuse me, excuse me. No, sorry, I'm right on point. Excuse me. Mr. Furfaro: Excuse me. Mr. Castillo: Excuse me, Council Chair. Mr. Furfaro: Yes, go ahead. Mr. Castillo: County Attorney Al Castillo. According to the Charter, may I remind the Council members that their legal councel is the County Attorney and asking this person regarding... and I let the question go through, but it's actually the question really is a legal question, and it really is for the County Attorney's Office. Ms. Yukimura: And I do plan to ask the County Attorney's office, but Mr. Stoessel in his testimony as a citizen has come to a legal conclusion. He is saying that neither the Salary Commission nor the County Council has the authority to require a performance evaluation and there's an amendment based on his opinion that's going to be proposed, so I think I have, I would like to ask him what the basis of his conclusion is. 9 Mr. Castillo: And Council Chair, the legal conclusion of anyone else or anyone other than the County Attorney is really irrelevant. Ms. Yukimura: It is... Mr. Furfaro: I would like to say that I appreciate your comment, Mr. County Attorney, and perhaps the term is "legal opinion" should be more around the guidelines of "best practices" Ms. Yukimura: Or just your opinion. Mr. Furfaro: Okay so you have served on the Salary Commission? Mr. Stoessel: Yes. Mr. Furfaro: I appreciate that and if you can respond to Councilwoman Yukimura regarding a best practice. The question is posed, why do you not think a performance review is part of the steps... Ms. Yukimura: Is not within the authority of the Salary Commission. Mr. Stoessel: The answer to that is a historical answer, and I need to say that when I sat on the Salary Commission in 2004, I wrestled with the same issues that are being discussed here and that have been discussed by the Salary Commission. Mr. Castillo: Excuse me Council Chair. Mr. Furfaro: Excuse me Mr. Stoessel, the County Attorney wants a moment. Mr. Castillo: Now this is really improper because Mr. Stoessel may have been on the Salary Commission and the Salary Commission has members and for Mr. Stoessel to reflect back on the Salary Commission may not be in conjunction with what the Salary Commission's opinion was at that point and time. So you know you are still asking for a legal opinion no matter how you ask the question and I strongly suggest that this line of questioning stop because it is not proper. Ms. Yukimura: Excuse me. Mr. Furfaro: Excuse me, no Councilwoman, let me finish. To get us to a point that we need to understand somebody mandating to us a salary without us coming up :without our own internal policy for setting goals, reviewing performance, and evaluating those goals set by the Council I think is relevant. Ms. Yukimura: Thank you. Mr. Furfaro: And I take your caution, Mr. Castillo, but I'm speaking now from management experience and if I reviewed a Controller who kept me out of problems financially, if I reviewed an Executive Housekeeper, Rooms Director that wouldn't overbook the hotel, there are certain goals that I need to set in their performance and I would only like to ask your opinion on Councilwoman Yukimura's question as it relates to the evaluation on performance and goal setting. Mr. Stoessel: What I was about to say is that ever since the Salary Commission was created in 1988 this issue of performance evaluation has been up 10 front. Every one of the Commissions has brought it up and nobody claims to be able to solve the issue. How do you get this done? Until the Salary Commission came up with this particular scheme, and my view is that this is not a workable scheme but even if you think it is I think it bears very careful examination and as I have said more than once, I don't think it can be done. That's the big question, how can you do it? Ms. Yukimura; Excuse me. Mr. Furfaro: Thank you Mr. Stoessel. Councilwoman Yukimura. Ms. Yukimura: So Section 29.02 of the Charter says Policies, the Commission shall adopt and when deemed necessary may change the policies governing all salary setting decisions. So it's talking about policies with respect to salary setting positions and connecting a pay raise to performance is a good policy so to me everything in the Charter would support the setting of or the tying of salaries to performance. Mr. Stoessel: As far as I know the Salary Commission does not have a policy about this and I couldn't discuss it unless I saw what the policy said. Mr. Yukimura: Well its policies are being set by its resolution. Mr. Stoessel: Set by what? Mr. Yukimura: By its resolution. You set policies by resolution and it did a resolution with regards to salaries. So even if there is no... even if we go with your thought that there is no power of the Salary Commission to require performance evaluations, H.R.S 46-23 says salaries of Department Heads, Deputy Assistants fixed how salaries of appointed heads of departments and salaries of deputies or assistants to any department whose head is elected or appointed shall be fixed by the Council of the respective County Governments. So that to me is another clear authorization for the Council to set, to establish policies regarding salary settings. I do believe that we have two functions, we have a function as an appointing body and we have a function as the Legislative body of the County mandated by State statute to set salaries for Department Heads. Mr. Furfaro: Okay and on that note thank you for your response and on that note I'm going to recognize Mr. Rapozo. Mr. Rapozo: Oh no, I'm just... Mr. Stoessel is I mean if he had a question I can see him staying up there but if he's done the deliberation will occur when we come back to order. Mr. Furfaro: You have no questions for him? Mr. Rapozo: No. Mr. Furfaro: And are there any other questions for him? Mr. Stoessel, thank you very much. Mr. Stoessel: May I say how much I appreciate the willingness of the Council to delve into these matters. Thank you. Mr. Furfaro: Thank you. Is there anyone else that would like to speak on this item before I call this meeting back to order? Okay seeing no one, first a 11 particular piece is perhaps the County Attorney would like to say anything here to us. We appreciate your commentary, but may I ask you to come up to the mic and I'll suspend the rules again. Al, to me it is best practice to have a review, grade the review of which the Personnel Department is saying that we needed to have a blended score better than three to give anybody the recommended raise, but subsequently you know we need to develop our own internal review policy. I think that's what we need to do. Mr. Castillo: And Council Chair, for the record Al Castillo, County Attorney. And you know I really appreciate Mr. Stoessel and his study of how we do business in County Government and his participation and he is a very wise person to be coming up here. I just wanted to caution the Council about the process and keep the process clean. There are other methods to gather resources for this Council and to not interfere with what the proper process is. In the event that Mr. Stoessel becomes a resource person then the Council can utilize him in the proper way. Whatever the Council decides at the end of the day is what the Council decides, so I was just speaking in terms of the process that was going on, on the floor. Mr. Furfaro: Thank you and accordingly I'm the Administrator for the Council so obviously I've set some goals for the Clerk, his Department, and therefore I want to find a scheduled time where I can share those goals with the rest of the members and get feedback. So, thank you very much. This meeting is back to order, Mr. Rapozo would you like to be recognized? The meeting was called back to order, and proceeded as follows: Mr. Rapozo: Yes I would like to move to approve a floor amendment that I introduced as circulated? It should be in everybody's desk. Mr. Rapozo moved to amend Bill No. 2395 as shown in the Floor Amendment attached as Attachment 1, seconded by Mr. Kawakami. Mr. Furfaro: Could you go over that since we have a motion and a second? Mr. Rapozo: Yes, and let me just say that Mr. Furfaro, I think that I agree with all Mr. Furfaro has stated about the evaluations of our appointed people and I just in my opinion I believe that the separation of power is a significant separation and that in fact I do not believe that this Council has the authority to dictate to the Administration how in fact they run their departments and how they evaluate their personnel. I think what we have done or what we do here at the County Council side at the Legislative Branch, we can in fact require personnel evaluation system for our respective departments, the County Clerk's Office as well as the Auditors. So my Amendment is real simple, it takes out the Sections A, B and C and it replaces Section A with all the affected appointees. Section B would basically require that the Council hold a Public Hearing within 30 days of receipt of the adopted Salary Commission resolution. Again I do not agree with Councilmember Yukimura that in fact the Salary Commission can, do anything beyond setting the salaries. I believe that is the Salary Commissions right. HRS really says the Council is the body that will effect that the salaries and that's how the process is set up, and then C the Salary Commission shall not establish or adopt multi-raises in a single Salary Resolution. The reason we're here today is because of the multiple raises in one resolution and the Salary Commission felt that in fact in order for them to get a raise it would have to be evaluated and they would have to get a satisfactory evaluation. So if we don't have that multiple year or multiple raise resolutions I think that shall resolve the problem. If you look at Section A it says 12 the Annual Salaries payable semi-monthly of certain officers and employees shall be established in the resolution that the Salary Commission is authorizes via the Charter and currently in effect provided however that the respective appointing authority may set the salary and increases in the salary of an appointee and any figure below the established or the figure established by the Commission. That is clear that in fact whether the appointing authority whether it's a commission, a County Council or the Mayor will have the ability to determine what pay they want to pay their employees at. So I'm offering this and I'm hoping that we can pass it. I do have some legal questions that in fact I'm assuming we're going to be sending a communication to the County Attorney's office? Mr. Furfaro: That's correct. Mr. Rapozo: But I do want to and this I want to ask and again no offence to the County Attorney but this Ordinance will have a direct impact on the County Attorney's office because you are listed as one of the employees on Section A. So therefore I guess the first opinion I would want is whether or not we can get opinions from the County Attorney's office because he is listed in the ordinance as and in fact will have a direct impact? So that would be my first question in fact if there is a conflict of interest with our County Attorney's office and then obviously the second question would be whether or not an interpretation of the Charter I guess whether or not the Charter, I mean the Salary Commission has that latitude to even dictate policy? I don't believe they do, thank you. Mr. Furfaro: Okay so before I recognize Mr. Bynum, we have your amendment on the floor but will be sending two questions from you and earlier we will be sending three questions from Mr. Bynum. Mr. Bynum the floor is yours. Mr. Bynum: I think this is a fascinating discussion and I do appreciate the testimony from Mr. Stoessel and the input from Council members. One thing is really clear to me and looking at the big picture we are talking about boundaries; we're talking about who has the authority to do what. Clearly and under our Charter, the Mayor and the Administration has certain authority and we have an expectation that the Council not get involved in the Administration of the County. In my mind does that mean we can't pass a legislation that says you shall conduct evaluations? I think we can do that, I don't think we can do the evaluations, I don't think maybe we can't even dictate the process by which evaluations are done, but I don't know right now. We have Boards and Commissions that we have vested with certain authority and there are boundaries there. I think we've come up with an interesting list and we have some really capable staff including an attorney who is taking studious notes over here and you know for me to move on either the bill or this amendment, I need more guidance from our attorneys or, if you know necessary special councel if there's a conflict at another question about where the boundaries are. I'm not prepared to vote on this Amendment or the Bill until we get more clarity, until I'm not making a motion right now but I hope in the long run I would hope we would defer. this matter pending getting the responses from the County Attorney and have an opportunity for all of us to review that document and the questions that go over to make sure they are inclusive. I actually agree with some of the things that Mr. Rapozo is proposing, so I'm not saying that I'm opposed to these changes, I'm just not ready to move forward on any Amendments or the Bill until we have more clarity. Mr. Furfaro: Mr. Bynum just to reconfirm, we have at least six questions going over to the County Attorney as it is right now, so there's a chance we'll probably be looking for a deferral, but the discussion we need to have is would we vote on Mr. Rapozo's amendment and then defer the bill. You know how do we 13 take it from there. Just to answer your questions and I'm just giving you kind of a quick summary. Mr. Bynum: My personal preference is that we not vote on any amendments today, that doesn't mean I'm opposed to any amendments, I just need more information. Mr. Furfaro: Understood, but I just wanted to say as the Chair, we have two ways to approach this. Send over the six questions and vote on the Amendment or just defer the bill and send over the six or more questions. Mr. Rapozo: Hearing Mr. Bynum's concerns I would agree and I would withdraw my motion to approve the Amendment until we and that's contingent that we defer this pending the County Attorney's opinion. I'm not sure... Mr. Furfaro: I just wanted to give you the two pictures of how I see it. Mr. Rapozo: And I appreciate that, I just want to make sure that I am introducing an amendment that is lawful and legal and all of that stuff so I withdraw my motion to approve the Amendment. Mr. Furfaro: Okay. Ms. Yukimura: Who did the second? Mr. Furfaro: Did Mr. Kawakami withdraw the second? Ok id there anymore questions here? Mr. Bynum. Mr. Bynum: Just a clarification. When the staff prepares the questions if we could have an opportunity to see if they reflect all of our concerns and add to it before we actually send it. Mr. Furfaro: Okay I will ask them and that particular way that you send your three questions over to staff. Mr. Rapozo you send over your two and I'm going to send over my one about the group review and let's look at them separately before they go over to the County Attorney. Mr. Furfaro: Mr. Castillo, did you have a question? Mr. Castillo: Council Chair yes, I would like to briefly and just to touch upon the procedure and conflict so that this body knows where we're coming from. First and foremost I am the County Attorney for the County of Kauai, mainly in this respect today you are my clients. Now it will all depend on the questions that you ask me and where it comes from. So number one I have to identify who okay I look at the question, I identify who is asking the question, which client. If it is deemed that I cannot be fair or impartial regarding the question then that raises an appearance of impropriety and that's when I come to you and say Client I may have a conflict here and that's where we have aclient-attorney discussion regarding a potential conflict. Normally when a conflict situation becomes problematic what I normally do is I seek guidance from the Office of Disciplinary Council where I do a complete presentation of the facts and seek the guidance and see what they say and pretty much go with their guidance. I just wanted to let everybody know that this is not a simple question. We have to determine who the client is, where the question is coming from, there is conflict, whether or not the client is or how the client feels about the potential conflict. 14 Mr. Furfaro: I appreciate that clarity. Mr. Rapozo do you have a question for the County Attorney? Mr. Rapozo: Yes Al. So I just having heard what you said, would it be easier if we submitted all of the questions from the Chair? Mr. Castillo: No normally we just consider where the question comes from and whichever way this body chooses is fine with us because we have to make the analysis anyway. Mr. Rapozo: Okay. Mr. Castillo: Thank you. Mr. Furfaro: Let's do it as recommended by Mr. Rapozo and let's please staff send the questions over that are submitted by the individual Councilmembers and have it go under my signature. Councilwoman Yukimura, did you have anything you want to say before we... Ms. Yukimura: Yes. Mr. Furfaro: Go right ahead. Ms. Yukimura: I just want to thank everyone like Councilmember Bynum I think this has been both a fascinating and a really important discussion. I think what is at stake is really the performance of excellence in the County and I know you understand that as a manager. So and I think we are charged with the responsibility for setting salaries to produce the result that we want for all of the people of Kauai. Thank you. Mr. Furfaro: Mr. Morimoto, I will be not introducing any amendments but we can continue to prepare it. I'm looking do we have motion to defer? Ms. Yukimura: No but we're ready. Mr. Furfaro; Im looking for a motion to defer since you withdrew. Mr. Rapozo: I make a motion to defer. Mr. Bynum: Seconded. Mr. Furfaro: Thank you, is there any further discussion? All those in favor say aye? All Council members: "Aye" Mr. Furfaro: Thank you there was no further discussion on a deferral and I think we have ended today's Committee Meeting. 15 Upon motion duly made by Councilmember Rapozo, and seconded by Councilmember Bynum, and unanimously carried, Bill No. 2395 was deferred. There being no further business, the meeting was adjourned at 2:18 p.m. Respectfully submitted, ~~,~C L urie Chow Senior Clerk Typist APPROVED at the Committee Meeting held on March 16, 2011: JAY ARO Chair, Commi ee of th Attachment: 16