HomeMy WebLinkAbout 04/27/2011 COMMITTEE OF THE WHOLE Committee MeetingMINUTES
COMMITTEE OF THE WHOLE
April 27, 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 the Council Chambers, 3371-A Wilcox Road, Lihu'e, Kauai, on
Wednesday, April 27, 2011, at 10:17 a.m., after which the following members
answered the call of the roll:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable KipuKai Kuali`i
Honorable Nadine K. Nakamura
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Jay Furfaro, Council Chair
Council Chair Furfaro: I will be taking public testimony on Committee of
the Whole items 05 and 06, and then I will be going into recess, so that we can go
back to the Kapaia bridge item in Mr. Bynum's committee. Is there anyone that
would like to offer testimony on 2011-05 or 2011-06 at this time?
There being no objections, the rules were suspended.
COW 2011-06 Communication .(04/21/2011) from Vice. Chair Yukimura,
requesting the Committee's consideration of the proposed
revisions to the Rules of the Council of the County of Kauai For
the Organization of Committees and the Transaction of
Business, as recommended by the Rules Sub-Committee, and
other amendments to the rules. (This item was deferred.)
There being no objections, the rules were suspended.
ALFRED LAURETA: Good morning Mr. Chairman and members of the
Kauai County Council. My name is Alfred Laureta. In light of the fact that I do
have another engagement immediately after my testimony, rather than read my
complete testimony, which I believe I have submitted to the members of the council,
I would like to just start my testimony at this time in the middle of my written
testimony, which is to this effect: the proposed revisions to the rules with respect to
section lOc, provides that any bills or resolutions shall be placed on the agenda
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within 120 days of the date of the written request of a councilmember to the council
chair, and that happens usually and will happen because the council chair refuses
to initial or allow an item to be placed on the agenda. The proposed 10c amendment
would enable a single member of the council to compel the remaining members of
the council to act on a matter in which they possibly had little or no interest at all,
and the assumption is the fact is that the chair probably refused to initial the
proposal for some good reason that he had and thereby exercised his discretion not
to initial it. Accordingly, this is my suggestion. That disagreements with the chair
on discretionary actions be resolved in the true legislative fashion rather than by
the whim of a single councilmember. I would suggest that under Rule 2, which is in
your current rules, which requires an affirmative vote of at least two-thirds, or five
of the council, should be further amended to include, and I'd like to quote this
proposal, " 3. To place on the agenda bill or resolutions which have been denied
placement pursuant to Rule 10c," or language of similar effect, and delete the
proposed revisions to 10c. The revision which I suggest would eliminate the four-
months waiting period and more importantly, it is a council decision that
determines whether the chair has fairly and justifiably exercised its discretionary
power. It takes five votes to override the mayor's veto. Why not the same for the
Chairman? That is my suggestion.
I think there is probably a question in the minds of most of you, it's look,
you're elected to represent your constituents. Somebody comes to me and asks me,
would you go ahead and introduce a bill on this particular subject? You know, you
go to your Council Chairman and you say, Mr. Chair, I would like to have this on
the agenda and the chair says no, I don't think it's important enough, I don't think
we have enough support for it, or for some other reason refuses to initial it and
allow it on the agenda. You say, but by golly, I'm supposed to represent my
constituents. You know, you have six different standing committees. If you cannot
convince the chair at that moment to introduce or put that on the agenda, go to your
standing committees, because I'm sure one of your standing committees will be the
proper place for you to bring the subject up.
If you cannot convince the standing committee of your particular issue, then
by golly, why waste the time of seven others or six others? And therefore, I would
like to keep the idea of keeping the discretion of the chair intact. Let him look it
over and say, well I think yes, it's important enough; no, no I don't think it's the
right time, or for some other reason don't initial give you his consent to put it on
the agenda. If you want to challenge him, I suggest you get five votes to say
Mr. Chair, you are wrong, we'd like to put it on. That would be, I think, in my
mind, at least a better way to do it. Thank you.
Council Chair Furfaro: Thank you for your testimony. Mr. Rapozo?
Mr. Rapozo: I have a question. Thank you, judge, I did get your
testimony. Are you aware of any political jurisdiction whether it's local, state,
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federal, that requires the chair or the chair of any committee or body to put
something on the agenda based on a request of an individual member? I don't.
Mr. Laureta: I suppose you could.
Mr. Rapozo: No, I mean, are you aware of any, though?
Mr. Laureta: No.
Mr. Rapozo: Thank you very much. I appreciate your testimony.
I happen to agree with you. Thanks.
Council Chair Furfaro: Councilwoman Yukimura?
Ms. Yukimura: Yes. .Judge, thank you very much for a very
interesting suggestion as to an alternative to our 120-day rule, and I think it's
..worth looking at. Why would you say five votes instead. of four?
Mr. Laureta: Well, it takes five votes to override the mayor. The
chairman is just as important, I think. Take five votes to override him. However, if
you decide that you want four votes would be sufficient, I think it's within your
discretion to say yes, all we need is four votes.
Ms. Yukimura: Okay. Thank you. I think those are all our choices
that we would have to choose from. Thank you.
Mr. Laureta: Now if you have got four votes, you have got your
majority already.
Ms. Yukimura: I mean it would take four votes to pass the rule, so
if we wanted to go with 120 days, that would be four votes saying that is how we
want to do it, or we could take your route where the chair would have discretion,
but we would be allowed to appeal the decision of the chair, basically, and override
it if there is a majority or supermajority of Councilmembers?
Mr. Laureta: ~ Well, you do it by vote of the Councilmembers,
rather than say, well, you don't like my proposal, well, I got 120 days then I will
force you to put it on.
Ms. Yukimura: Right. There is the thing about at least having a
discussion on some issue...I mean this idea of every idea deserves some time
for discussion.
Mr. Laureta Well, you know, there is always this problem of the
sunshine law. If you are trying to get the four votes from anybody, it might be a
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violation ~ of the sunshine law.' But if you have a proposal and you wanted it
legitimately to be presented to the council, go to the standing committee and
present that idea to them and it is a standing committee decision whether or not
they should .present it.
Ms. Yukimura: Right, and by putting something... making a
request to have something on the agenda, somehow that has to be a public act in
terms of all of us knowing about it, so that there would then be a chance to appeal it
or whatever.
Mr. Laureta: You go through the regular procedures. You follow
the regular procedures that you are doing now, but to say, well, look, the Chairman
Refuses to put this on, I still can do it in 120 days. That is my suggestion is let the
council decide whether it should go on or not.
Ms. Yukimura: I hear what you are saying. Thank you very much.
Mr. Laureta: Thank you.
Council Chair Furfaro: Thank you very much, sir. Excuse me, did you
have a question for the judge?
Ms. Nakamura: Yes. Thank you, Judge Laureta. I was a member
of the rules subcommittee, and we had a lot of discussion on this issue, and this is a
different approach to addressing the concern that was raised, and I think it's
something that we .definitely need to look into, and I wanted to thank you for
bringing up this possibility. Thank you very much.
Mr. Laureta: Thank you very much.
Council Chair Furfaro: Excuse me, one more question for you?
Mr. Laureta: Yes.
Mr. Kuali`i: I'm sorry, it's more of a statement than a question.
I just wanted to say thank you and thank you for sending your testimony in
advance. I was able to read it quite carefully last night, and your wisdom resonates
with me for sure, and I thank you so much for your testimony. I agree with
Councilmember Nakamura that this is definitely something we need to work on.
Thank you for your help.
Mr. Laureta: Thank you.
Council Chair Furfaro: Thank you very much, sir. I'm accepting testimony
on committee of the whole. Mr. Mickens?
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GLENN MICKENS: Thank you, Jay. For the record again, Glenn
Mickens. I'm sorry, I didn't send mine as the judge had. I probably should have
sent this thing in prior to your meeting so you had a better chance to read it, but for
the viewing public, let me go over my testimony. I have a few questions and
comments about the rules as we're changing them. JoAnn did a fine job, I thought,
of handling the committee and letting the public be involved in it. I believe that
the...this is rule 2, 4, on page 3. I believe the public should be able to find out
whatever rule of law they might be interested in getting without having five
members of council needing to okay it, or I believe that the county attorney should
be mandated to give the public this information no more than a week after any case
is finalized, if in fact, it has no bearing on the case. Our ad hoc committee that tried
to get a county manager system on Kauai wanted a simple rule of law from our
county attorney or the attorney general, whether or not there was any state law
that prohibits us from have a county manager. We could never get an answer, and
in our., opinion we felt this was completely wrong.
Rule 13e, which is page 17, in my opinion this rule should say, "members of
the public shall be allowed a total of 15 minutes on a first come first served basis to
speak on any government item," not on any agenda item. The public already has a
right to speak on an agenda item, but they may want to speak on some issue from
the past that never had any resolution or finality, as with the Opaekaa bridge that
was on the agenda four or five years ago was never properly addressed, or an item
like .the lights being left on at our athletic fields when no one is using the facility.
JoAnn, you addressed this issue several times, but I personally saw the lights on at
Kapa`a softball field last Friday with no one playing. One hour later they were still
on, park was empty, no automatic shut-offs have been installed. We continue to
waste valuable energy. Many other issues have died and should be brought up and
this would be the way for the public to address them.
Where it says, "regarding...," this is rule 16c, page 20, where it says,
"regarding a consent calendar, a member may request that an .item be removed
from the consent calendar for discussion and separate action." Since any item on
that agenda or calendar, I presume you're using calendar as meaning "agenda," is
already open for the public to speak on, I would suggest that the word "member" be
changed to "any person," if member means council only. In other words, if
"member" does not mean "council," then that restrictive word should not be in the
consent calendar, as it would, in my opinion violate the sunshine law.
Rule 16d and Rule 11, page 20 and page 15. I would respectfully request that
along with notices and agendas for all regular standing committees, special and
executive meetings, being posted on the county website that honoring or
presentations to people be added to this agenda. The public should certainly have
the right to know when an honoring is to be done so that they can arrange their
schedule around the time, particularly if they are leaving work to attend a meeting.
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And lastly, what happened to our county website that was going to list all
communications, resolutions, and bills? It's supposed to have been finalized last
December, as you well know, for the public to read without necessity of driving 20
miles to pick up a hard copy at the clerk's desk.
So those are my comments and a lot of food for thought. Again, I apologize
for not sending this in sooner, so that you could have had a chance to read them
prior to this time. But I will answer any questions if you have any...or try to.
Council Chair Furfaro: Well, we're just taking testimony now. We're going
to recess and go back to Mr. Bynum's thing, and then come back to all of this.
Mr. Mickens: Okay. Thank you, Jay.
KEN TAYLOR: Chair and members of the council, my name is Ken
Taylor. First of all, I want to register my disagreement with the judge's comments
today. I believe that all of you are elected to serve the community. You amongst
yourselves choose your chair, and I believe that any one of you have the right to
bring forth a request for a hearing matter. And I think we have seen great changes
since this council has been seated, and we all appreciate that, and I don't foresee
the problems that we have seen in the past, but we have also seen these items get
put in place. and then automatically rolled over every two years, and it doesn't mean
they can't be changed. But I think when you are making a decision on these,
assume that they are going to be here for a while and that things will change and
there may be a time in the future when there will be a disagreement between the
chair and one of the councilmembers. So I would leave it as it is stated.
Some of the other areas that I'm .very concerned about, Rule 9, the last
sentence that is being added I don't think should be. I think it should be left out. I
think under Rule 13, 13e, again, at the beginning of the agenda of the council
meeting there should be public comment period, it should be on items that are not
on the agenda. I don't think that is too much to ask, and I really believe that I've
raised it...made this comment in the past about what the constitution of the state
and what it spells out in statutes in section 92. The government belongs to the
people, and we have asked you to carry on our business, day-to-day business; but we
have not relinquished our government completely. And I think that we should be
entitled. I think that under Rule 2, again, I don't believe that atwo-thirds vote
should be a requirement. I think that once an opinion is rendered on a matter of
law that it should be automatic available to the community. There are some other
things that I disagree with in this document and I would just like to close by saying
that I strongly believe that if you move forward with this document as it's currently
written that you are really short-changing the community in an ethical and moral
manner. I think that it's time for you folks to realize and understand that the oath
of office that you took to uphold the constitution of this state and all of the
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documents that come under there, the rules and regulations, I think it's important
that you understand completely that you have an ethical, moral obligation to the
community to do what's right and to give them the open government that they
deserve. And this document, if you approve it, does not reach that goal. Those are
my comments. Thank you.
Council Chair Furfaro: We have a comment from Mr. Rapozo, then we have
a comment from Mr. Bynum, and directed at you in the form of a question. Please
keep your comments tied to responding to the question.
Mr. Rapozo: Thank you, Mr. Chair. I have a question. I will
reserve my comments, which will be plentiful when we get to the proper time. But I
will ask you the same question I asked the judge. Are you aware of any jurisdiction
that allows or requires the chair to place an item on an agenda by the request of one
of the members?
Mr. Taylor: No.
Mr. Rapozo: Thank you, that is all I have.
Council Chair Furfaro: Thank you. Mr. Bynum?
Mr. Bynum: Ken, I appreciate your testimony, and because you
started it by saying this is areas that I agree with, this is areas that I would like to
see changed. Some of your comments I agree. with; others I didn't. But then you
end, like you have occasionally, with this strong kind of admonition about morality
and ethics, and I just want to give you an opportunity. If we accepted this without
document as it is without making any amendments, don't you acknowledge that
there are a number of improvements in terms of the issues that are important
to you?
Mr. Taylor: In the process of changing a document, that is the
time to bring it up to current levels of where government all over the country are
going. I think this is the time to open government, and I think this is the time that
this document should address those issues. Why rush it into place when it doesn't
achieve open government?
Mr. Bynum: My question was, do you acknowledge that there
are some improvements from where we currently are?
Mr. Taylor:
Mr. Bynum:
Thank you.
Not enough.
Okay, then that's an answer.
I accept that.
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Ms. Yukimura: I have a question.
Council Chair Furfaro: Council Vice Chair Yukimura?
Ms. Yukimura: What it sounds to me and you can tell me whether
I'm right or not is if you don't agree with me, you are morally and ethically wrong.
Is that what you are trying to say to us?
Mr. Taylor: No, I'm not saying that at all. I am saying that I
believe you have an ethical, moral obligation to the community, not to me, to the
community to open government.
Ms. Yukimura: Well, we may have different ideas of what "open
government" is, but it sounds like you're saying that if we disagree with you we're
morally and ethically wrong.
Council Chair Furfaro: Any more questions to pose to the speaker? There
are no more, Ken. And on that note, I would like to ask if I'm going to go ahead and
put this Committee of the Whole in recess, and refer back to Finance/Parks &
Recreation, and Mr. Bynum, we're back to your committee.
There being no objections, the Chair recessed the meeting at 10:40 a.m.
The meeting was called back to order at 1:34 p.m., and proceeded as follows:
Council Chair Furfaro: Okay, I will call back to order the committee of the
whole. We were on recess. We're reviewing two particular subcommittees assigned
on HR, as well as the rules. But we'll take the rules piece, first, if I could have the
clerk's office read the item?
Ms. Yukimura: Mr. Chair, could we do the minutes of each? They
are actually the first two items and we could get rid of that quickly.
Council Chair Furfaro: Fine. I'm so used to talking off of memory, I didn't
make reference of the sheet. Let's approve the minutes.
Minutes of the Rules Sub-Committee Meetings of January 27, 2011, February 10,
2011, and February 28, 2011
Councilmember Rapozo moved for approval of the Minutes as circulated,
seconded by Councilmember Yukimura.
Ms. Yukimura: But discussion, Mr. Chair.
Council Chair Furfaro: There is discussion. Yes.
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Ms:` Yukimura: I regret to admit that I haven't read the minutes of
the meeting, and as the chair of subcommittee I feel responsible to at least read
them beforehand. So if I could ask for a deferral on this, I would appreciate it.
Council Chair Furfaro: .Okay. There has been a request for deferral.
Before I ask for a motion to defer, is there any further discussion? If not, may I
have a motion to defer.
Upon motion duly made by Councilmember Rapozo, seconded by
Councilmember Yukimura, and unanimously carried, the Minutes of the
Rules Sub-Committee Meetings was deferred.
Minutes of the Human Resources Sub-Committee Meetings of February 28, 2011,
March 15, 2011, and Apri15, 2011
Upon motion duly made by Councilmember Rapozo, seconded by
Councilmember Bynum, and unanimously carried, the Minutes of the Human
Resources Sub-Committee Meetings were approved as circulated.
(continuation of discussion on COW 2011-06 follows)
Council Chair Furfaro: Thank you. very much. Next item is COW 2011-06.
On that note, I'm going to turn this portion of the committee of the whole over to the
subcommittee Chairwoman, if that is acceptable to all of you? On that note, Vice
Chair Yukimura, I would like you to lead the discussion on the subcommittee.
Councilmember Nakamura moved to receive COW 2011-06 for the record,
seconded by Councilmember Rapozo.
Ms. Yukimura: I will be happy to. Moved and seconded to receive
and we can have discussion. Could we have Mr. Morimoto come and ask him for the
additional revision sheets?
Council Chair Furfaro: Were they working on revisions today?
Ms. Yukimura: We are going to talk about them today. So thank
you, Mr. Chair, for the opportunity to update everyone as to where we are. You all
you received copies of the rules and the changes that are highlighted as
recommended by the rules subcommittee. They are here today for our consideration
and if we feel it's timely, we can report it out to the full council. But I want to say
that in addition to the recommendations from the committee, we received proposals
from the public and from some Councilmembers after the rules committee did their
recommendations. So I thought this would be an appropriate time to look at those
proposals and to get a sense of the committee of the whole, and if the committee of
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the whole is in favor of them conceptually, then we would draft amendments and
have them ready for the next meeting. So actually I am looking at one
more meeting.
The other reason I'm looking at a deferral to the next meeting is yesterday we
received a county attorney opinion from the county attorneys evaluating the rules
that we sent them, and there were some commentaries .and suggestions that we
would like to review and possibly incorporate for action in two weeks. So there are
two things then before us, besides the recommendations of the subcommittee.
There is additional revisions that have been suggested by the public and other
Councilmembers, and then there is the incorporation of the county attorney's
recommendations. And with your permission, I would like to go over the proposed
revisions, but I need my staff person.
Council Chair Furfaro: You've got to drink carrot juice like me, because I
did all of those numbers by memory. Drink some carrot juice.
Ms. Yukimura: Well, actually I have them before me, but I would
like you all to have copies. But you know what, let's start with the first one, since
it's not that hard. And this came from Caren Diamond. She suggested that we
require county attorney approval as to form and legality before the bill is
introduced.
Mr. Rapozo: I'm sorry, which number are you on?
Ms. Yukimura: It's on a list that you don't have yet, because we're
waiting for my staff person. Brief recess, chair, if that is okay with you.
Council Chair Furfaro: That's fine. We're in recess.
There being no objections the chair called a recess at 1:40 p.m.
The meeting was called back to order at 3:24 p.m., and proceeded as follows:
Council Chair Furfaro: The committee of the whole is going to be called
back from recess. When we went back to the finance committee I was about to turn
over the subcommittee reports to the subcommittee chairs, and so vice-chair
Yukimura, this portion of the meeting is under your direction.
Ms. Yukimura: Thank you. You did receive a circular (see
Attachment 1 hereto) and it included two pages, one entitled "additional revisions,"
and another "proposed rule 17," which I understand comes from Councilmember
Nakamura, and it's in response to some of the advice we got from the county
attorney in their review of our committee recommendations. So if I could direct
your attention to the additional revisions first. And I would like to go down each of
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these seven, and see if we can get a straw vote on whether or not we would like to
have this included in your changes to our rules, each one, and then to the extent
that we want them, we'll have staff work on the exact wording between now and our
next committee meeting. Does everybody have the circular? I think the top page
was "restriction on employment of relatives," rule no. 17, but I want to start with
the second page.
So number 1, which is a suggestion from Caren Diamond. Councilmember,
are you ready? A suggestion is that we require the county attorney's approval as to
form and legality of every bill before it is introduced.
Council Chair Furfaro: Can we ask the county attorney to come up and I
have a question or two on that?
Ms. Yukimura: Yes. I will suspend the rules. County Attorney, we
have a question for you, please. The second page of that. Go ahead, Chair.
There being no objections, the rules were suspended.
Council Chair Furfaro: To the county attorney's office, I'm not sure if you
heard the Subcommittee Chairman, Councilmember Yukimura, that it should be
the practice of this council, in our rule, to have every and all bills. reviewed by the
county attorney's office prior to a posting as an agenda item.
AL CASTILLO, JR., County Attorney: Okay. For the record Al
Castillo, County Attorney. You know, if it's a legal question that you are asking me,
I don't have any legal precedent to tell you yay or nay on that; I cannot find it in the
charter. I think to me, well, I don't think, I know for a fact that to me right now
this is a policy question on whether or not you want that. to happen. I fully respect
the council in their caution, and we at the county attorney's office very much
appreciate when you ask us for our legal opinion regarding a certain matter. So my
answer to that would be in an abundance of caution, that would be prudent of the
county council. It would be a lot o£.. Well, we actually research everything
anyway. It would be additional work, but not much additional work because as the
bills go through, we have to do our due diligence.
Council Chair Furfaro: So currently it's been practiced. We have had some
attorneys on our council and some of them choose without any collaboration with
other members not to send over a draft bill for an opinion, I guess.
Mr. Castillo: Yes, but there are same times where...when we
look at or when we look at the draft bill and we recognize either deficiencies or
problem areas where it's my opinion that had the Councilmember known ahead of
time that this is an area where there would be problems, then at least we could
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spend a lot of time...it wouldn't waste the time and effort in doing something that is
legally problematic. So we have ran into that situation before.
Ms. Yukimura:
Council Chair Furfaro:
Question?
Thank you, Councilwoman.
Ms. Yukimura: Thank you. Councilmember Nakamura? No
question right now? Any other questions of the county attorney? If not, thank you
very much and we're back in session.
Mr. Castillo:
You're welcome.
The meeting was called back to order, and proceeded as follows:
Ms. Yukimura:
Ms. Nakamura:
subcommittee on rules met.
Ms. Yukimura:
Councilmember Nakamura.
This came as a recommendation after the
Yes.
Ms. Nakamura: So... and the recommendation came from Caren
Diamond, and I thought it would be helpful to read her concern to the other
members, in case you haven't heard the rationale. She said this measure would
save the council valuable time that is wasted on public hearings and meeting time
on items that are later to be found in conflict with applicable law. Poorly formatted
or incorrectly formatted changes to ordinances are confusing and misleading. The
county attorney would sign approved as to form and legality; Maui corporation
counsel implements this policy.
Ms. Yukimura: Thank you, that is very helpful. Any other
comments? Councilmember Bynum?
Mr. Bynum: And I know not all Councilmembers will be aware
of this, but last term this issue came up about sending bills in advance, you know,
to the county attorney and the staff did an analysis of all the bills for the year, and
only two, in my recollection, only two bills went before the county attorney in
advance. One of those was the cell phone bill.
Ms. Yukimura: You are talking about Kauai's bills?
Mr. Bynum: Kaua`i's bills, yes, not Maui. Kaua`i's bills and the
other one was the plastic bag bill and that was...both in instances where the
authors of the bill felt like hey, there's some legal issues here, you know, there's
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some complexities that we really want to get that input in advance. And so I think
as we've reviewed all of those bills that didn't, you know, my own judgment was
many of them really didn't need to, because we do a lot of bills that are routine and
pretty straightforward, money bills, that kind of thing. But I don't think this isn't
an idea that we shouldn't discuss, because if bills have clearly some enforcement
issues, they have potential legal challenges, it would be very wise for us to engage
the county attorney's office collaboratively and even in authoring it, much less just
even reviewing it, and I believe that is a service that the county attorney
provides us.
Ms. Nakamura: So rather than require, are you saying encourage?
Mr. Bynum: Encourage, for sure, but you know, maybe... I
hadn't thought this through until this, because this came up today, but look if there
is a certain criteria that would warrant a requirement. Because of that analysis
that we did, I was like wow, at first it was wow, we do a lot of bills and a lot of them
do not have the kind of substance that would require that. So I don't know if the
county attorney has a comment about that.
There being no objections, the rules were suspended.
Mr. Castillo: I do have a comment; because what I basically
what I was saying earlier is true knowing full well that we have a great relationship
with your legal analysts, and I believe that in the next fiscal year, or it is my hope
that the county council will have three legal analysts. So based on that, knowing
that we work well with the legal analysts, that I believe when it comes over to our
office most of the legal concerns will be clearly identified and at least we would not
have to be searching for where the legal obstacles are.
Ms. Yukimura: Thank you. Other comments? Chair?
Council Chair Furfaro: I am glad Mr. Bynum brought up the fact that all
bills...I mean certainly money bills are routine in format and so forth. And
although we did expand to have two legal analysts here at the council, I think it's
premature to say we might get a third. We might happen to get another analyst
who also happens to be an attorney, which is a plus, but I think as Mr. Bynum
pointed out earlier, some of the vacancies that we want to fill, obviously one would
be someone to support our financial pieces, it might be nice to have somebody who
has a finance background, especially during budget times. But I just want to point
out, I think Mr. Bynum made a very good point. I mean we wouldn't send over
money bills.
Ms. Yukimura: Right.. So there are money bills, there's routine
bills, sometimes there are bills that need to be rushed or they have a certain
deadline. So and making it a requirement, especially if it's applied to every bill
before it's introduced would really take away a lot of flexibility that we might need.
13
And what? Use "encourage." I mean there is also the other format where when the
bill is .introduced, it can also be sent to the county attorney, and while it's going
through the process, but before a vote, it can have an analysis done. It is true and
Mr. Costa and I came upon it yesterday as we reviewed the sunshine market bill
regarding value-added and realized that we wanted additional scrutiny, because we
want to make sure that whatever we pass is going to be a good foundation for good
management and enforcement at the sunshine markets. So you can in the process
of doing a bill also determine that you would like a review. So what I'm hearing is
either we would encourage or we would leave be, silent, and just let it go.
Councilmember Rapozo?
Mr. Rapozo: I would recommend that this is a council policy and
not a rule. The rule is when you are required to do something. Mr. Furfaro has
implemented several policies already that carries the weight of the body. It's the
law of the land, and it's a policy. It's really...it's a simple policy, because a lot of the
bills come across from the administration by request. Why would we send that back
to the administration for legal review? So I mean I think this is such a common
thing that it's something a policy should resolve more so than a council rule.
The other thing too, when you put it in a rule, if you need to change it, you
need to go through the entire public hearing process. If it's an office policy, you
don't. So I would recommend on these areas that are not so strict and that you
anticipate the need for some flexibility that it be in the office policy and not a rule.
Ms. Yukimura: Okay.
Mr. Rapozo: That is just my opinion.
Ms. Yukimura: So what I'm hearing then is that we not include it
as a rule, and if we have time, we can see if we can draft up some wording as a
policy, but we're going. to focus first on the rules that have to be prepared. So we'll
not include that as a rule, if there are no objections.
Okay, number 2, new amendments proposed at committee meetings should
be ,voted on at a following committee meeting. Any comments or questions or
thoughts?
Mr. Rapozo: Again, I just got to see this ten minutes ago, 15
minutes ago, so I'm thinking out loud, but I think about the time-sensitive
amendments that we don't necessarily have the luxury of waiting on an additional
two more weeks.
Ms. Yukimura: This will make things very inflexible and
sometimes they are just minor technical amendments, but if we don't make
distinctions, it would hang us up for that purpose. I think we could just leave it to
14
our discretion, like today, when we looked the amount of work that needed to be
done on the. sunshine amendments, we decided we needed to... We circulated
something for people to look at, but we decided we wanted more time. But maybe
on a case by case basis we would determine that rather than making it a rigid rule.
Okay, so if there are no objections, that will not be a rule either.
Number 3, all unfinished bills die at the. end of the council term. And I
believe present practice is if you postpone indefinitely, and maybe we need a clerk,
in terms of what present practice... If you postpone indefinitely, then it doesn't
come up for at least a year. Actually it's in our rules.
Mr. Bynum: Is it?
Ms. Yukimura: Yes. And that is one way to get some time on it,
but you don't kill it. For example, I think our real property tax reform bill is still
pending because of that, and so is the open density bill.
Mr. Rapozo: There's quite a few.
Ms. Yukimura: Right, and you know, some of those bills had
extensive public input, extensive discussions, certainly both the bills I mentioned
did, but there wasn't the desire to pass it right away, and so it was sort of postponed
indefinitely but it's still there, so you can pick it up and work on it, or you can pick
it up and kill it and introduce a new bill. So you have options right now.
Councilmember Bynum?
Mr. Bynum: I also didn't see this until. today, but I chuckled,
because in this binder are. a bunch of bills that are pending and I think this is an
interesting idea actually, not that it would die at the end of the term, because
Councilmember Kaneshiro introduced the bill this last week on the council that is
currently going through the process. But we also are had a planning bill brought
here in 2002 that had extensive discussion, workshops, debates, and got deferred
pending a second workshop. And it stayed there eight years until then planning
chair Furfaro brought it back up and we completed it; we ended up receiving the
bill. But you know, I thought this is a bill I wished would have come to fruition.
I'm just thinking out loud, but maybe there should be a time limit on how long
something can be pending before it has to be received, and it might be six months or
a year even. But the staff keeps up this binder, I think we have gotten some of
those out of here, but the other one you bring up is the comprehensive real property
tax reform I believe is still pending and that was more than two .years ago. So I
could see a scenario where some Councilmembers who didn't want this to come to
fruition or have to make a decision could of park it let it fade away. So I don't know
if it's right to say it kills at the end of the term, but hey, it can't stay pending more
than a year, we do a review every now and then, and say hey, how come we're
leaving these bills in limbo? I don't know. I'm just...it's an interesting discussion.
15
Ms. Yukimura: That might be something to do to flag it after a
certain amount of time. Councilmember Kuali`i and then Councilmember Rapozo.
Mr. Kuali`i: Just piggybacking on what Councilmember Bynum
said. I would think that maybe the .business of the new council would be to within
three to six months, to either bring it up again or let it die. I think as far as you
said the valuable public testimony that is true, if it's current. But if so much time
goes by, then it's moot and dated and you have to go to the public again. So if
maybe three to six months was a reasonable amount of time. I think a year is
probably too long, because if it's that long, you should go back to the public. You
never know, you know, the opinion of the public changed with time.
Ms. Yukimura: Thank you. Councilmember Rapozo.
Mr. Rapozo: At any given time you can go to that binder and
pull the bills if you wanted to kill it or wanted to resurface it, it's any one of our
prerogatives, we can do that. The bottom line is it's the political will to kill it if you
don't want it. That is how you stop the practice, but typically it's been deferred so
that... for whatever reason-we don't want to touch it, we don't want to kill it
because it makes us look bad, but the bottom line is if you're not happy with a bill,
you vote no and it dies. But to...we got, we got a ton in there that should be cleaned
out but how do you clean it out without... I think to come out now and say, hey,
everything that is in there that we're not going to do is going to die without the
public having an opportunity to comment on those bills, I mean I think that is not
proper either. If we want to kill any bill, it needs to be done here with a motion to
receive and then it dies, so the public has an opportunity to comment. I think that
is the only way we can kill a bill and not hiding between 6 months, 12 month, 18
month period, and okay whoosh, you know.
Mr. Kuali`i: There was an election, it's a new body.
Mr. Rapozo: Correct. But the bill, again, had some momentum
at some time. The public has a certain reliance that in fact that bill is still active.
Mr. Kuali`i: So then the new body is obligated to respond, react,
or interact with the public to determine within the next three to six months if that
bill needs to move forward, and if it does, they will be forced to make that move.
Otherwise, knowing that if you don't do it, the rule is that it dies eventually in six
months or whatever. Otherwise it's just all going to sit there for five, 10, 15 years.
The public will have forgotten about it, but we're still trying to honor their wishes,
but they have even forgotten about it, possibly.
Ms. Yukimura: Councilmember Nakamura?
16
Ms. Nakamura: I would like to agree with your suggestion,
Councilmember Kuali`i. I think that...I have been informed that the binder also
includes not only bills, but resolutions and communications that have been
deferred. So the idea of giving the new council three to six months to, if they don't
take action or try to revive one of them, then they should be put to rest because it is
anew body coming onboard. So if the new body wants to take up one of those
pending issues, they should be, you know; they can do that. Actually they can do
that any time, but that way the rest of the items in here that we choose not to
revive can go away, rather than having staff update this all the time.
Ms. Yukimura: Councilmember Bynum?
Mr. Bynum: I'm glad we're having this conversation, because
just an example, housing purchase buyback policy 3-13-95 is in this binder.
Council Chair Furfaro: It goes all the way back to 1990.
Mr. Bynum: Butt I agree with Councilmember Rapozo that at
some point in time this had some energy. It might have been from the community,
and I think we should find a way to clean this up, but it should be in a public forum
that says, hey, anybody still interested in this bill? No. Okay we'll be receiving, but
do it in a public way. Because sometimes the community is still very interested,
they just give up. It's like, hey, we came here, we talked, and we came, we talked,
we testified, the bill got deferred,. and you know, they just are disheartened and
they give up. That's just kind of a bummer. Bummer. Did I say "bummer?"
Mr. Kuali`i: I think inaction is equal to disinterest. So if in 10
years there was no action, there really is no interest. But there's other things that
they are more interested in.
Ms. Yukimura: So from what I am hearing, I think the idea is that
we give three months of a new council to look at what's on the agenda...what's
pending and so things will self-destruct after three months, which will force
committee chairs, actually to look at what is the old stuff in their committees, and if
they want to revive something, or it just triggers them to introduce a new bill or
something, they can do that. But then after three months it's gone. So if that
sounds okay with everybody, we'll draft a rule and see how we can do that in
specific rule wording and bring it up at the next meeting.
Mr. Rapozo: The only thing, I guess, I can agree with that, but
the only issue is the public notice. So in other words, if we're going to go and clean
up that folder, then we need to have an agenda item letting the public know that
this is the intent of this body is to go and kill all of these bills. So that they will
have an opportunity to come forward and testify. Again, we don't know the reasons.
Some of them were told that we're waiting for a study, we're waiting for response
17
from some expert, and maybe they have forgotten, but I think if they were to find
out later that we killed it without them knowing. I think it's just... and I think the
process provides for that. We failed over the years to allow a 1995 bill to sit in that
folder is embarrassing, but it is what it is. So I don't have a problem, but as long as
there is a posting... The process to kill these bills need to be in the rule as well.
There needs to be some kind of method of killing these bills rather than it just self-
destructs because I think that is not in the best interest of the public.
Ms. Yukimura: We can definitely incorporate a notice provision.
And it may be that some of these bills have been superseded by new legislation.
Our housing policy bill, for example, which was passed might have taken care of the
buyback. So it really is maybe just old stuff that we need to clean out. But
whatever it is, there will be a process to determine that and to do it with notice.
Chair?
Council Chair Furfaro: I was going to suggest that I take it on myself to
address through the committee of the whole all of the resolutions that are still in
these documents, and the reason I say that is because a resolution is a typical policy
statement that is only good for the period of time that that council passed it. Then I
would put the rest of the burden to go through this book on the various committee
chairs as it pertains to their departments. But I will prepare something in the
next 60 days or so after I look through all of these resolutions, post them for actions
to end them, and go from there.
Ms. Yukimura: That is great. And if our consideration of this rule
just did that, that is a positive thing. And we will propose a rule for future issues as
they may become pending in the committees and may be languishing. Okay? Any
other thoughts about this? Yes?
Mr. Kuali`i: So just a quick point. I think it's important to have
this process in place so that we're not in a position where we have to actively kill a
dormant bill. I still think that public testimony and the public involvement in a bill
would need to be somewhat current and then if it got years, it's dated, and we would
have to go back to the public anyway. So it's not actively killing a bill; it's passively
allowing the bill to die, because it didn't move or it just stayed. It is a new body and
if it's really important to the public, then it will come up again. They will come to
us one by one, or to the chair of a committee, or they will come here to this room and
tell us. So it would really be a good thing for our efficiency. Everything is defer,
defer, defer. I personally would love to see us to be able to do more for the public
faster. I know government is slow, but... and maybe putting some process in place
will help us.
Ms. Yukimura: Thank you.
18
Council Chair Furfaro: Everyone understood-my offer was for the
resolutions, not the ordinances.
Ms. Yukimura: But what, we will put in place will force committee
chairs to look at what is in their committee. They will actually look closely to see if
it's .pretty obsolete, and they'll make recommendations to this group as to how
to... or they may say I recommend killing this and I'm going to be introducing a new
bill so that we can have current testimony. But main thing is there will be a
process to deal with this. Councilmember Nakamura?
Ms. Nakamura: I am hearing two opposing viewpoints. And one is
to allow these bills to passively allowed to die or to actively through a very public
process allow it to die. My preference is the former, because given the time that we
have on this council, I would like to be spending my energy on prospective bills and
programs that I feel are important, not what was done five or ten years or longer. I
want to spend my energy on things moving forward, and if I feel something five
years ago was important, I will make sure that's on my list and work on it, but I
don't want to have to spend a lot of my time and energy looking at possible
programs that were important to some people 20 years ago.
Ms. Yukimura: Well, one way or the other, because it's pending
and we have to take an action to kill it onto bring it back in one form or the other,
it's going to be posted and there will be public input and it could be, like the request
to dispose of old records where it's just a list of things...I mean we can't do it
without any notice at all, because it has to be an agenda item to do it, I believe.
Even if we have a rule that says this is what we're going to just let it all die. But
we'll probably have to list it all. And it will be a continuous process, because we
have to look at the end of every term. Right? But I think it can be very fast, but
there will still be notice. And I don't think it's going to be as hard as we think it's
going to be.
Mr. Rapozo: Does anybody know how many we have?
Ms. Yukimura: No, we don't.
Mr. Rapozo: I just looked in that folder. There's maybe a dozen
and we just spent half an hour on a dozen old bills?
Ms. Yukimura: Right. So we still need...because they are all
pending yet, we're going to have to deal with them either one at a time or by a rule.
chair.
Mr. Rapozo: And I think that should be left up to the committee
Ms. Yukimura: Okay, we can do that.
19
Mr. Rapozo: If it's in my committee and it's an old bill, I should
be allowed to keep it in. It's my committee.
Ms. Yukimura: Well, and then we also have to orient people.
Sometimes new Councilmembers aren't that aggressive in inquiring what's pending,
and they don't even know that there's something pending in their committee, so our
staff will have to advise them of such. But we can leave it to each committee chair
to take care of the backlog and not create any rule.
Mr. Rapozo: I just want to make sure that people understand
that we don't have 400 old bills hanging... it's not that many. It's very, very, small
number.
Ms. Yukimura: Yeah, and some are very simple and some are quite
involved. What is the pleasure of the committee? Is it the pleasure of the
committee not to create any rule and just to let committee chairs deal with
whatever backlog is in their committee? Chair?
Council Chair Furfaro: I just want to say. There is a deferral log available
to you in committees and in council. Committee chair people, please acknowledge to
me that you are going to go and look at those and those should be individual
committee decisions.
Mr. Kuali`i: My committee is clean.
Mr. Bynum: Yes it is.
Ms. Yukimura: Okay, well, you have a clean slate from which to
create. Anybody else?
Council Chair Furfaro: And Mr. Bynum's is jam-packed.
Mr. Bynum: Which is much to my surprise.
Ms. Yukimura: Okay, if there are no objections, I'm going to let
each committee chair handle it, and we'll see how it works, and if we find out that
we need a rule, we can always come back and amend our rules. Any objections?
Very good, thank you.
We're on number 4. The suggestion...we're halfway down, people, that the
bill must be received by the full council and not in committee. Actually, the next
one, number 5, kind of addresses that. As you recall we had recently some
confusion about receiving bills and what that meant, or not passing a bill and what
that meant, remember that? I think maybe our staff put this in here, but... It
20
would clarify things to say that if a motion to approve or receive a bill fails, no
action has been taken and a vote to approve or receive must follow. That is a vote to
receive must follow the approved loss and the vote to approve must follow a received
loss, i.e., the contrary affirmative motion has to be offered. You don't assume that
the negative, of what failed automatically happens. And I think that is a good
clarification.
Mr. Rapozo: Can you explain that, because you lost me?
Mr. Kuali`i: You lost me too.
Ms. Yukimura: Okay, so let's just take one. Motion to approve in
committee fails.
Mr.' Rapozo: What about number 4?
Ms. Yukimura: Let's defer that for a second, because it's actually
related; it will be addressed by 5, I think. Staff correct me if I'm wrong. If a motion
to approve in committee fails, the thought was that it moves out to the full council
as a recommendation against the bill. Right? And there is logic to that, except that
there are other motions that if a motion to approve fails, you could also make a
motion to defer. You could make a motion to amend, you could make a lot of
different motions, so that there isn't only one motion left, i.e., the motion to deny or
to disapprove. That is why another affirmative motion has to be made so that we
can report a clear action or recommendation to the full council. So if a motion to
approve fails, then there has to be a motion to receive that follows it's a clear action
that we want to kill the bill. That we don't want to defer it, we don't want to amend
it, we don't want to do all the other motions that are possible, if a motion to approve
fails. So it's really just a clarification that will make it clear--we move out a clear
recommendation to the council. Am I correct, staff?
Ms. Nakamura: So I think this needs to be amended to say if a
motion to approve or receive a bill fails in committee.
Ms. Yukimura: Yes and we'll address that with the specific
wording. And we actually have to separate the two, so that we can say what the
proper motion is. Yes, Councilmember Bynum?
Mr. Bynum: So the upshot of this would be the council has to
take final action on any bill?
Ms. Yukimura: Nothing can happen finally in committee. It has to
always go to the council. And I think that was the purpose of number 4, that the
bills must be received in full council and not in committee. The thought that no bill
can actually die in committee. It has to go out to the .full council and where a
21
majority of the full council will make a decision. Because in committee a minority of
the council could make that decision, 3 out of 5, which is not the 4 required in the
council. So this just assures that the council and it actually follows the charter, I
think.
Mr. Bynum: That was my point. If we need a rule to clarify this,
I'm all for it, because I don't think a minority of the council should be able to
determine an outcome that may not be the will of the majority. But I believe that
this in the charter. It says, all final action will happen in council.
Council Chair Furfaro: That is in the charter, all final action, but the
problem we had is in committee people had to vote for a bill to get it to the full
council, so that they could change their vote and vote no and this fixes it.
Ms. Yukimura: It will make the recommendation of the committee
clear.
Mr. Kuali`i: You are saying that the recommendation of the
committee, but you are not saying what that automatically is based on the vote. If
the vote was to not approve, then you vote to receive in committee.
Ms. Yukimura: Yes.
Mr. Kuali`i: And that means the recommendation from the
committee to the full council is to not approve.
Ms. Yukimura: Is to kill the bill. But it doesn't end in the
committee.. .
Mr. Kuali`i: (Inaudible)
Ms. Yukimura: Right, it will go to the council. Councilmember
Rapozo.
Mr. Rapozo: Is that in conformity with Robert's Rules?
Ms. Yukimura: Yes, it is?
Mr. Rapozo: It is.
Mr. Kuali`i: I wonder if it's just how governments work.
Because what is the point of a committee doing the work if the committee then says
no, but then they pass it on to the council to recommend no. It's a lot of time that's
going to be spent on it.
22
Ms..Yukimura: If it didn't contradict the charter, we could do it like
the legislature does, which does allow committees to kill bills. I think the charter
require a vote of the council.
Council Chair Furfaro: We're not changing the charter here.
Ms. Yukimura: No.
Council Chair Furfaro: The Charter requires the council to kill the bills.
Ms. Yukimura: Right. Councilmember Rapozo, you had a question.
Mr. Rapozo:. But I guess the interpretation...
Mr. Kuali`i: To kill the bills that come before them?
Mr. Rapozo: The interpretation is what constitutes the item that
needs to be... action needs to be taken on? If the committee doesn't pass it out and I
got to go talk to the parliamentarian and talk to some other jurisdictions, but I
think there is no sense of having a committee if at the end of the day the council is
going to take the vote. The function of the committee is to vet out. That is my
opinion.
Ms. Yukimura: The motion to defer is still a committee option.
Mr. Rapozo: Correct. I'm not disagreeing with you.
Ms. Yukimura: So you can keep it in... The committee has the
power to keep it in committee for a long time.
Mr. Rapozo: Correct and the committee can also refer it to the
full council?
Ms. Yukimura:
Mr. Rapozo:
Ms. Yukimura:
Correct.
For action?
That's right.
Mr. Rapozo: But the committee also should have, in my opinion,
the ability to kill a bill. I mean I think that is how it's done throughout the country.
I mean that's how it works. If not, why have a committee?
Mr. Kuali`i: What is the motion to receive?
23
Mr. Rapozo: Motion to receive kills it.
Mr. Kuali`i: Right, so if the committee passes a motion to
receive; it doesn't kill it?
Mr. Rapozo: It should kill it.
Mr. Kuali`i: It goes to the council.
Mr. Rapozo: That is what a motion to receive does.
Ms. Yukimura: Actually it's a motion to recommend to the council
to receive the bill; that's what it is.
Mr. Rapozo: That's not what it is. A motion to receive is... if you
make a motion to recommend to the council, then you make that motion.
Ms. Yukimura: We could maybe make that clarification as well.
Mr. Rapozo: Sut if I'm on the committee and I recommend a
motion to receive and the majority of that committee agrees, that matter is done.
Mr. Kuali`i:
Refer or recommend?
Mr. Rapozo: Well, that will be the option of the committee.
That's what we did with the bill, the bag bill, we referred it to the council and the
council took the vote.
Ms. Yukimura: Well, the committee has many options
in committee.
Mr. Rapozo: Correct. But I don't want to see the rule take away
right or the authority from a committee to kill a bill.
Ms. Yukimura: No, the committee does not have the authority to
kill a bill.
Mr. Rapozo: And I disagree with you.
Ms. Yukimura: Well, I think the charter makes it clear that any
bill has to be approved...
Mr. Rapozo: It doesn't say a bill.
24
Ms. Yukimura: The final action is taken by... Okay, Peter
Morimoto wanted to say something. And then Tim, you are next.
Mr. Rapozo: How does Maui do it? I mean we refer to Maui for
everything else. How does Maui do it?
There being no objections, the rules were suspended.
PETER MORIMOTO, Legal Analyst: I am not sure how Maui does it.
Mr. Chang: You want to state your name for the record?
Mr. Morimoto: Peter Morimoto, Council Services. I am looking at
the charter, the Kauai County Charter, and the Charter .speaks to actions taken by
the council. And actions are defined...excuse me. Section 4.01. Every legislative act
of the council shall be by ordinance except as otherwise provided, non-legislative
acts of the council may be by resolution. So it appears from reading this that
passing an ordinance or passing a resolution is a legislative act, but to receive a bill,
I think I agree with Councilmember Rapozo that the committee can move to receive
and a bill can be killed in committee or received in committee.
Ms. Yukimura:
Mr. Morimoto:
resolution is a legislative act.
Ms. Yukimura:
Killing a bill is a legislative act.
Passing a bill is a legislative act. Passing a
It's a legislative act to decide not to pass something.
Mr. Morimoto: Well, no, because it says every legislative act of the
council shall be by ordinance. So if a legislative act is to pass an ordinance, the
converse isn't true either, you know what I mean?
Ms. Yukimura: I hope you are really certain about that. I think
you better do some research.
Mr. Morimoto: You asked for my opinion. Sorry.
Mr. Rapozo: And I agree with your opinion. Mr. Morimoto, I
happen to agree with your opinion.
Ms. Yukimura: County Attorney.
Mr. Castillo: Excuse me, County Attorney Al Castillo. We went
through this exercise before and when we experienced this issue, what I did was I
did a lot of research. I suggest that someone does ask the county attorney's office to
25
do a legal opinion so we can clearly define for you what can be done and what
cannot be done.
Ms. Yukimura: I think that is good advice. Thank you very much.
We're back in session. Councilmember Bynum?
The meeting was called back to order, and proceeded as follows:
Mr. Bynum: I think we should ask for that legal opinion, but I
also feel very strongly that a minority of this council should not be able to deny an
action that the majority agrees with. So if we can address that by adopting these
rules, let's please adopt these rules, because I want to know who in the general
public, if you had four Councilmembers on that really wanted to put a bill or motion
into action, would you want three members, a minority, to be able to stop that,
because they happen to be the members on a certain committee? And I think there
is another provision in the Charter, but I will wait for the county attorney's opinion
that says all final action has to be taken by the council, I believe. I don't have it in
front of me.
Ms. Yukimura: I think we do need a clear legal guidance and I do
think what is involved here is also a policy decision, if the charter allows us to make
it in terms of how we set up the rules. But we will defer any action on bills 4 and 5.
Not bills 4 and 5, but proposals 4 and 5, and we'll request the county attorney's
opinion on this issue. Thank you very much.
Number 6, this was a Mr. Stoessell's. Clarify rule 6c...I think it was it 6c.
It's the sixth motion on page 14. Is that right?
Mr. Rapozo: I think he probably was inquiring about the same
issues as 4 and 5, I believe. I think he just wants clarity on whether or not...
Ms. Yukimura: Yes, he wanted to know what "receive" meant and
what the final... Or Peter, can you come forward? You have talked to Mr. Stoessel
for clarification on that? Rules are suspended.
There being no objections, the rules were suspended.
Mr. Morimoto: Peter Morimoto, legal analyst for the county
council. Mr. Stoesell sent us an email and his question was regarding rule 6c. and
his question was whether or not in 6c, number 6, which says, 6 to receive for the
record, to receive, or to file, which means to take final action to close a file on the
item, and his question was whether the phrase "which needs to take final action to
close the file on the item" modify the last phrase, "to file," or whether it modified all
three potential actions? In other words if modified to receive for the record, to
receive, or to file?
26
Ms. Yukimura: And it would seem to me on just reading it that it
means all of the above.
Mr. Morimoto: That was my read as well, but that was one of the
suggested revisions, I guess, to clarify that particular.
Ms. Yukimura: .Because basically this is a motion to kill.
Mr. Morimoto: That is correct.
Ms. Yukimura: Or to complete?
Mr. Morimoto: That is correct.
Ms. Yukimura: To finish. I mean, there are things that we receive
for the record and then we file into a file somewhere. Or we receive a bill and that
effectively kills it.
Mr. Morimoto: I believe it was meant to address the different ways
that Councilmembers phrase the motion, but let's say you say "move to receive,"
"move to receive for the record," or "move to file." All three basically mean the same
thing that the item is going to be received.
Ms. Yukimura: Final action.
Mr. Morimoto: Right.
Ms. Yukimurra: Okay, so I think everybody's... Let me ask, that
everyone feels that this is a rule that would govern or give guidance to completing
the action on something, and we would just have Peter work on it?
,~
Ms. Nakamura: Could we just clarify...
Ms. Yukimura: The. wording, to clarify it? okay. Any objections?
Mr. Kuali`i: No objection, but I would just say that, so this
makes it so clear for the council, and then they use the same phraseology for
committees to mean something different makes it very unclear.
Ms. Yukimura: That's right.
Mr. Kuali`i: So looking back at 4 and 5 when we get our legal
opinion, what have you, we should get away from that "receive" word and just use
"refer" or "recommend."
27
Ms. Yukimura: Point well taken, or you can... Yes, and so you can
recommend receiving or recommend approval. Right, that's a very good point. So
Peter, if we can also make that distinction somewhere in the rules about motions in
committee and motions on the council floor. Any more on no. 6? Then we're on the
final proposed revision. Permit circulation of county attorney opinions requested by
an individual Councilmember once the subject matter is placed on the council
agenda. This is a proposal that was made by Councilmember Bynum in the
subcommittee. It was rejected by a vote of 2-1. And I think Councilmember Bynum
would like consideration by the committee of the whole, which is kind of the point
about whether small subsections of the council can kill the bill without giving the
larger body the right to consider proposals. Do you want to speak on that?
Mr. Bynum: Sure.
Mr. Chang: Excuse me
Ms. Yukimura: Yes, Councilmember Chang?
Mr. Chang: I was just going to say Councilmember Rapozo and
Furfaro was out. So I just thought it will be important for you to speak when
everybody is here.
Ms. Yukimura: And here, now everyone is back.
Mr. Bynum: I was going to ask a process question?
Ms. Yukimura: Okay, go ahead.
Mr. Bynum: So we're not taking any final action on any of these
rules today?
Ms. Yukimura: No final action, but we are making some decisions
about whether we're going to move these conceptual proposals to a written
amendment.
Mr. Bynum: Well, I intend to introduce a written amendment
about this.
Ms. Yukimura: That is fine.
Mr. Bynum: And I don't mind talking about it now, but this is
not the end of this, right?
Ms. Yukimura: That is correct.
28
Mr. Bynum: Okay, so I'll just say that this is an issue that came
up over the last two terms. One of our previous county attorneys basically just said
flat out, once a bill is on the agenda, the body is the client, and all opinions are
going to be circulated to all members. That made sense to me. So in dialogue with
the current county attorney and others I suggested that we have a rule that says, in
essence when you are preparing a bill, when you are researching a bill, before it is
on the agenda, your .communication with the county attorney is between you and
you share that with whomever you choose; right? But that once a bill is on the
agenda, it becomes the business of the entire body. So just play out some scenarios.
You could have five Councilmembers send five different questions to the county
attorney and expect five written answers. And you know, you could, as a
Councilmember, send a question and if you didn't get the answer you liked, just
keep it. And that is not really involved in an open process. If you are willing to put
a proposal on the agenda, and there are legal- questions, I believe the' entire body
should hear those questions. It's on the pragmatic side, just in terms of managing
our business. If a bill is in committee, questions to the county attorney should be
coordinated by that committee chair and if it's at the council, questions and answers
should be distributed to all Councilmembers, because it's now the business of the
body. .And I did request a legal opinion about this, which I've had circulated to
other members. And basically the opinion suggested a language change, which I
intend to make. So if you haven't seen that opinion, I think it was circulated again
today. T have asked staff...
Ms. Yukimura:. Have you circulated it again?
Mr. Bynum: I believe it was circulated?
Mr. Rapozo: It was.
Ms. Yukimura: Okay.
Mr. Bynum: And i£..and I have also asked staff to kind of send
a memo to the county attorney, because that was dated in January, I believe,
o£..this year? It was some time ago, so hopefully we can review that. To me this is
just logical in terms of managing our body, and I believe that the opinion from the
attorney that once a bill is on the agenda, the client is the body, not the individual
Councilmembers.
Ms. Yukimura: Okay, let's clarify that this is as to questions of law.
Right? It's not about personal...
Council Chair Furfaro: Only questions of law as I understood it.
29
Ms. Yukimura: Right. It's not about personal requests about
whether there is a conflict of interest or whether there is personal liability or
anything like that. It is about a law that is being considered by this body.
Mr. Bynum: I mean, the proposed language I could read. It's
just one paragraph. Request for opinions made by individual Councilmembers to
the county attorney and opinions received pursuant to those requests shall be
communications between the Councilmember making the request and the county
attorney, if the subject matter of the request and opinion have not been placed on
the agenda. If the subject matter of the opinion and the request has been placed on
the council agenda, then the request for opinion and the opinion received pursuant
to that request shall be circulated concurrently to other Councilmembers, but shall
remain privileged communication with regards to other parties, like all of our
communications until we make a decision. It doesn't mean you get to share this
with anybody, but you have to share it with your colleagues.
Ms. Yukimura: Okay, well the wording doesn't clarify that it's as to
questions of law and maybe you can, as you develop the amendment, do that
because that is your intention, I believe?
Mr. Bynum: Yes.
Ms. Yukimura: Okay, questions of Mr. Bynum? Questions
or comments?
Council Chair Furfaro: I just want to summarize something here.
Ms. Yukimura: Sure.
Council Chair Furfaro: Councilmember Kuali`i asked an opinion about a
bill he is working on, and that bill might be on shoreline setbacks. That
communication comes to the chair, the response is directed back to the chair and
Councilman Kuali`i. But as soon as the fact of the matter is posted on an agenda,
an agenda item, then that information is for all members.
Ms. Yukimura: That is the proposal...proposed rule.
Council Chair Furfaro: Oh, there is a caveat. Go ahead.
Mr. Bynum: Well, I believe that Councilmember Kuali`i is
working on a bill and has communications with the county attorney, that is between
him and the county attorney. I don't even think that needs to go through the chair.
But once it becomes the...if Councilmember Kuali`i says I want this bill on the
agenda, then communications should be coordinated through either the committee
30
chair or the council chair depending on what status it's in, and the answers to those
communications should be sent to everyone.
Council Chair Furfaro: Okay, once it gets on the agenda.
Mr. Bynum: Right.
Council Chair Furfaro: But what you are proposing right now, as the
Chairman in the past, all of those communications so that there is one conduit to
the county attorney go through me, but what you are saying in this bill, Jay Furfaro
Chairman, I'm off the list.
Mr. Bynum: Well, Jay Furfaro is also one Councilmember. And
so if I'm contemplating a bill, I may not want to share with other Councilmembers
my thought process until it becomes agendaed.
Council Chair Furfaro: So Jay Furfaro council chairman and
Councilmember doesn't see that communication anymore. That is what you are
proposing?
Ms. Yukimura: Until it's put on the agenda.
Council Chair Furfaro: Understood. I am no talking about a getting to the
agenda. I'm talking there's a query going on.
Ms. Yukimura: Prior to.
Council Chair Furfaro: So you want to make it you to the county attorney
and not through the council chair.
Mr. Bynum: Yes, and the rationale has nothing to do with you
as an individual, of course. It has to do with what I believe the county attorney's,.
role is is that he's our legal advisor as individual members, he's out legal advisor in
the body, and what I'm trying to do is make that distinction. When you are my
legal advisor prior to it being a business item with the council, then that
communication is between us. When it becomes the business of the council, then
the body's the client.
Council Chair Furfaro: As I explained, it goes to everybody once it gets on
the agenda. Okay, well T understand your point now. I'm sorry I had to step out on
another matter.
Ms. Yukimura: No, that's okay. This has been a .good discussion.
Councilmember Rapozo?
31
Mr. Rapozo: I guess I have a process question, because I have
the rules committee report that the subcommittee met, and this item was voted
down. So why are we discussing it here?
Ms. Yukimura: Yeah, because people can propose amendments
when it comes to the larger body.
Mr. Rapozo: But we didn't even go through the stuff that did
pass your committee.
Ms. Yukimura: No, we did. We have.
Mr. Rapozo: When?
Ms. Yukimura: When I reported it out to this committee, I went
over each item. I think Councilmember Nakamura said wow, you remembered all
of this stuff. Do you remember that? So we did. I think if we go back to the
minutes of the committee. When I first reported it out...
Ms. Nakamura: I don't think we had discussion. I think there was
a general review, but no discussion at that time.
Mr. Rapozo: That's what I thought today we were going to go
over the...
Ms. Yukimura: Well we can...
Mr. Rapozo: No, but I guess my question is... You know,
Mr. Furfaro set up the committee, the subcommittee, and items went through the
subcommittee through the democratic process, and this item did not pass the
subcommittee, but yet here we are discussing it at this body, which to me, again,
makes no sense of the subcommittee.
Ms. Yukimura: Oh, but it does, unless you think things can die in
subcommittee.
Mr. Rapozo: No, no, no. I just said that defeats the purpose of
having the subcommittee. If the subcommittee voted it down, and I apologize
because I just had to ask Ricky for the...because I remember reading the report. It
wasn't with any of these documents today. But that's fine. I mean...that's fine. I
just wanted to make sure the public understood in the subcommittee this item did
not pass.
Ms. Yukimura: Well, for example, if we're in the planning
committee with the shoreline setback bill, and somebody introduces an amendment
32
and it doesn't pass in committee with three votes, the person who proposes it can
propose it when it comes on the floor.
Mr. Rapozo: I .understand. I thought we were going to go over
the...
Ms. Yukimura: I'm more than happy to 'go over it. I thought we
should take these revisions because we had no chance at all to discuss them. But
we're at the end, the last one.
Mr. Rapozo: That's fine.
Ms. Yukimura: Councilmember Kuali`i.
Mr. Kuali`i: So on .the number 7, I heard distributed
concurrently and I just wanted to .know if that means that if the opinion from the
county attorney was sought in advance by one particular Councilmember and/or
with the chair, when the item was posted on the agenda, the opinion is available.
Correct? So would it be made available like a week in advance, like we posting the
agenda a week in advance? Because I think to receive it the day of and you are not
necessarily having enough time too. So if you are building it into the process and it
already exists prior to being put on the agenda, then it should automatically go out
to all the Councilmembers in advance... as far as in advance.
Ms. Yukimura: It's important to remember though that the
introduction of the bill is just the beginning of a long process, because it has to go
through two readings and to committee.
Mr. Kuali`i: But even at the beginning, I want to read and know
if I'm wasting my time or not. I mean we want to know if this is doable... To have
the advice in advance for all of us from the very beginning is valuable.
Council Chair Furfaro: Councilmember Bynum said when it goes. It goes
on the agenda with six days notice, I would assume, knowing it went. on the agenda,
that at .that time that opinion is distributed. So that as Councilmember Kuali`i
says, he has at least six days to understand the legal opinion that the county gave.
Ms. Yukimura: Do you want us to include that in the rule,
assuming that the rule is something that the majority of the council wants to
include?
Council Chair Furfaro: It should be clear, at time of posting, any released
legal opinions should be made available to Councilmembers. Mr. Morimoto, did you
hear me over there? Thank you.
33
Ms. Yukimura: Any other commentary on this issue?
Mr. Rapozo: I guess I'll just... I'm not going to support that. I
have read the county attorney's opinion, but if that is going to be the case, because
when we're working on bills and we dealing a lot of moving parts and if I confide in
my county attorney then I would expect that communications to be privileged until
such a time that I release it. And if that's going to be the practice, then I guess I got
to go get my own attorney, so I can at least have that confidence that my
discussions with the attorney, which could be vast. It could be not just pertaining to
that. The other problem I think I really have is once we waive that privilege, then
it becomes waived from that point forward. So I'm a little concerned with that. But
you know...
Ms. Yukimura: Well, it's not waived as to the public, but it is
waived as to others, and we're really not talking about a personal privilege because
this will be a legal opinion. It won't minutes of your discussion or anything like
that. It's just going to be an interpretation of the law, which might be important for
us to know?
Mr. Rapozo: Was that language added, the as to the law,
questions of law?
Mr. Bynum: It will be. And when I read I left out the word that
the opinion suggest it be left out. But I just agree with Councilmember Yukimura
that this is only about written opinions of law.
Mr. Rapozo: I understand.
Mr. Bynum: Any conversations that I have with my county
attorney, even about existing legislation, I trust him totally that that's between us;
right? One good thing about attorneys is they understand these boundaries about
confidentiality generally very well.
Ms. Yukimura: Yes.
There. being no objections, the rules were suspended.
Mr. Castillo: May I say something? Excuse me, County Attorney
Al Castillo. I thank the comment that Councilmember Bynum just stated, and I do
fully` appreciate what Councilmember Rapozo's concern is, because when we go
through this process of analyzing the proprietary interests of the opinion, it is of
major importance that we clearly back at the county attorney's office identify who
the client is. And at times it's a really difficult process in determining whether or
not the client is a singular Councilmember or the client is the council as a whole. So
34
we are very careful in making that legal determination. I just wanted to let all of
you know that.
Ms. Yukimura: Okay, Councilmember Rapozo, question?
Mr. Rapozo: For the county attorney? So am I to assume that
you will make that determination and you will basically give the...when that
opinion comes across, there will be some kind of narrative that says okay to release
to Councilmembers upon posting of the agenda item.
Mr. Castillo: Yes, because there are times when it would be...we
would. make the determination that the interest is a proprietary one and that the
client is specifically the Councilmember and not the council as a whole.
Mr. Rapozo: Right. So you will be the judge of that?
Mr. Castillo: Yes. We make that determination. I think if there
is good communications between the county attorney's office and the
Councilmembers, we try to protect each and every one of you.
Mr. Rapozo: And I know it can get difficult, especially with two
Councilmembers on opposing views, and I think that is my concern. I think the
newspaper took Mr. Kawakami or one of the blogs took him out of context when he
said it's politics, but the reality is it's a strategy to get your bills passed. If I'm
passionate about a bill and part that is being able to do the research yourself
utilizing the resources.
Mr. Castillo:
that we make.
We fully understand the context of the decisions
Mr. Rapozo: Thank you.
The meeting was called back to order, and proceeded as follows:
Ms. Yukimura: Well, and questions of law will not change
depending on who asked the question.
Mr. Rapozo: Correct, and that is why I asked specifically if that
was going to be in the amendment?
Ms. Yukimura: Right, right.
Mr. Rapozo: Because I can live with the question of law. That is
not a problem.
35
Ms. Yukimura: I think that's all the intention here that an
interpretation of law would be standard, no matter who asked the question and if it
is relevant to a bill that is being proposed, then we need to all have access to that.
Any other discussion? Chair?
Council Chair Furfaro: I have areal problem with the Chairman not
having access to these legal opinions, and I'm going to tell you why upfront. If at
the end of the day I control the agenda, which I have not prevented any agenda item
to go on there, but I see a legal opinion that implies, gee this is going to need a lot of
work before it gets on the agenda. I won't see it until it actually gets posted.
Ms. Yukimura: No, no. It would be...
Council Chair Furfaro: Yes, yes. That's what I was just told.
Ms. Yukimura: Well, let me share with you another thought...
Council Chair Furfaro: I'll share with... another thought, but I want to
focus on that one because in one moment I'm getting a rule that says after 120 days
everything goes on the agenda regardless if it gets my signature or not. On the
other side I'm also hearing, and to determine when I put something on the agenda
or perhaps have a discussion with the county attorney about something that may
need more work from a legal standpoint, I won't see it until it gets on the agenda.
So those are my concerns.
Ms. Yukimura: Yes, I heard you concerns. So this is how I see it
working. The councilmember who wants to introduce a bill would write you a letter
and say I would like to put this on the agenda, and this is the legal opinion that I
have with it. It would be from him when he's (he or her, him or her), and then you
would have a right to hold it off for 120 days if you wanted to, based on the opinion.
But that would be when he is ready to put it on the agenda, then he's making the
opinion available to you. But before a councilmember is ready to ask that it be put
on the agenda, you would not see the opinion.
Council Chair Furfaro: Okay, that's awful nice mannerism. I'm going to
tell you, as I am sitting here right here today, I have had Councilmembers put
things on the agenda without even clearing the requests from me. That is a stated
fact. And going forward I'm just saying, as you take away these privileges of the
chair, I'm not worried about it, but then for the next chair or the chair after me.
Ms. Yukimura: I think there is an issue of who controls which
agenda. Do committee members control their committee agendas and you control
the council agenda.
Council Chair Furfaro: I disagree with you on that as well.
36
Ms. Yukimura: That is the issue. That is the issue. But that is not
the matter before us right now. The matter before us is the release of legal
opinions.
Mr. Rapozo: .Item number 7.
Council Chair Furfaro: Let me finish here, please, Mr. Rapozo. My point is
not to make that the discussion. My point is all of these fine refinements on the
rules that actually take the leadership role of the chair to a different place. That's
all I'm saying.
Ms. Yukimura: Okay, thank you, Councilmember Rapozo.
Mr. Rapozo: I just want to make sure, Mr. Chair, you
understand. My assumption has and currently is is that any communication that
leaves this body goes through you.. I don't want you to think that I was saying we're
going to go straight to the county attorney.. Because as you know through working
with me, if I want a county attorney's opinion, we're going to route it through the
proper channels you have...which is Ricky, and I'm assuming that Mr. Furfaro will
sign off on the request for a county attorney's opinion, and the county attorney's
opinion will come back to Mr. Furfaro and then get it to me. That is the assumption
that I'm working under. So I don't want you to think that we trying to...
Council Chair Furfaro: No, no, no. I'm just saying I've been very flexible,
but I reserve the right as one of seven to voice my opinion about this rule and other
subsequent rules that to me continue to deteriorate the role of the Chairman.
Ms. Yukimura: Councilmember Bynum?
Mr. Bynum: May I ask Councilmember Rapozo a question?
Ms. Yukimura: Yes, as long as he willing to answer it.
Mr. Bynum: If you are working on something, you haven't
decided whether you want to bring it before the body or not, maybe... I was trying
to think of an example, but you are working something that is pretty sensitive and
you are trying to come to the conclusion if you are going to present it or not. And
you want to get advice from your attorney, you think the chair should know
about that?
Mr. Rapozo: I think so.
Mr. Bynum: Okay, you answered my question.
37
Mr. Rapozo: I think interdepartmental issues should go through
the chair. I just think that.
Mr. Bynum: But you haven't put any... There is nothing before
the body?
Mr. Rapozo: If I had a question regarding my personal conflict of
interest with a matter, I would call Mr. Castillo, I need to see you, Mr. Furfaro
doesn't have to know, if it's a personal issue. But if it's an issue regarding a bill
that I'm contemplating or I'm working on, whichever the case may be, and I need a
(inaudible), which I have done several times, it flows through the chair. It has to go
through the chair, otherwise we could have seven requests going over to Mr.
Castillo for the same opinion. That's why he's here.
Mr. Bynum: That's actually the purpose of this amendment is to
avoid having seven opinions go over there when it's council business.
Mr. Rapozo: Right, but if no one will know until the bill hits the
floor, how is anyone going to know?
Mr. Bynum: Know what?
Mr. Rapozo: That somebody requested an opinion.
Council Chair Furfaro: Six people wrote the same request for the same
opinion.
Mr. Rapozo: How would we ali know? That is why. Is that what
you guys trying to do-to be able to go straight to the county attorney without
running it through the chair? Is that is what this does? Because then I can tell you
right now I'm not supporting that. That is what I'm hearing.
Ms. Yukimura: No. Well, the rule as proposed... Okay, go ahead,
you answer.
Mr. Bynum: It's actually two levels, you know. The main intent
of this was to say once something is on the body. So once something is before the
body, communication about legal opinions goes through the chair to the county
attorney. That is the intent. Now the second level question is if I want an opinion
from my attorney about something that is not before the body, and so I don't want
to throw the baby out with the bath water, because the main intent of this bill is to
say once something is before the body, Councilmembers can't avoid going through
the chair. They can't avoid sharing the opinion with the rest of the body, because
it's now the business of the body.
38
Mr. Rapozo: I understand. I understand exactly what you are
saying. I'm just saying that it just has always been my belief that anything outside
of this office to another department within the county and I believe there was a
policy under Bryan Baptiste where one copy would go to Gary Heu and...I mean
there were some policies that were in place, but I am just under the impression... I
will continue to work that way, that if I have a request for planning, public works, it
goes to Ricky, and then from Ricky it filters down to the chair, and everything gets
approved by the chair. That is his job. He's not just ameeting-holder. He is the
chair of the council. He has certain obligations. This is my opinion. So I just want
to make sure that is clear, though.
Mr. Bynum: Mel, Mr. Rapozo.
Mr. Rapozo: Mel is fine.
Mr. Bynum: I have been on this council where we had a bill
before the council and a Councilmember sent an opinion to the county attorney and
when it was shared with the whole body got very upset that it was shared with the
body or even the chair.
Council Chair Furfaro: I wasn't the chair at the time?
Mr. Bynum: No, you weren't the chair.
Mr. Rapozo: And I wasn't the Councilmember.
Mr. Bynum: I think you were.
Mr. Rapozo: An opinion? Well I'm not going... I don't know.
That's a different issue. We're talking about routing there. As far as sharing the
opinion, you heard my opinion earlier, I don't agree with that. But I read the
county attorney's opinion.
Mr. Bynum:. So then if we have a bill before us, all seven
members can send a request for an opinion and they have to write seven?
Mr. Rapozo: No. If Mr. Furfaro gets a request from
Councilmember Rapozo requesting an opinion on shoreline setback as it pertains to
x, y, z, it goes. Now Mr. Bynum wants to send a request for a county attorney's
opinion, it goes to Mr. Furfaro, Mr. Furfaro says that question has already been
asked, the county attorney's are working on it. That's what I envision.
Mr. Bynum: When the opinion comes back, does it go to
everybody?
39
Mr. Rapozo: Your amendment here, you are saying yes.
Mr. Bynum: Yes, that is the main purpose of this.
Mr. Rapozo: And this body will vote on that. But I'm just
saying, as far as the process to get it over to Mr. Castillo, it has to go through the
chair.
Mr. Bynum: I think that is a somewhat separate issue. And I
realize that I confused it by answering the... So what I'm saying is that the main
intent of this is... and so I'm less concerned about the routing through the chair.
Actually that is the intent of this is to make sure everything gets routed through
the chair and shared with everyone.
Ms. Yukimura: At the time of introduction.
Mr. Bynum: Once it's on... Once it's an item before the body.
Ms. Yukimura: Right. Okay, chair?
Council Chair Furfaro: I just want to make sure you understand. The
word I'm trying to share with you folks is having leverage over the chair. You get a
county attorney opinion and that opinion is not routed .through the chair, so you
come to me and say, but you know, if you want to see the opinion, you got to put this
on the agenda, and then you get to see the opinion, Mr. Chair. That is called
"leverage." And I heard Mr. Bynum saying that wasn't the intent, but that is the
way...that is why I .did the summary. If I'm controlling the agenda, by our current
rules, of which I haven't not put anything on the agenda, but now I'm being told, if I
get a legal opinion, and it's only mine, and the only way it gets released is it goes on
the agenda, then I'm in a position as the chair, if I want to see that legal opinion, I
got to place this on the agenda. I don't think that is appropriate.
Ms. Yukimura: So Mr. Bynum, then I think based on your
ruling...I mean on the proposed rule, that does not really address the issue of going
through the chair or not. What it does is it addresses the issue of what happens to a
legal... a county attorney opinion on a legal issue when a bill is pending
introduction. Right?
Mr. Bynum: Yes, and I want to repeat, I realize I confused the
matter.
Ms. Yukimura: And I'm trying to clarify that.
Mr. Bynum: In answer to your question, and so the clarification
is the intent of this rule would be that once it's on the body, that it go through the
40
chair, and.that it be shared with all Councilmembers because it's the business of the
body.
Ms. Yukimura: But it's actually... it's going to the chair before
introduction because that is the way to get a bill introduced.
Mr. Bynum: Oh yeah.
Ms. Yukimura: Right? So when you are ready to introduce it, it
won't be at the meeting of introduction that the chair gets it, it will be prior to that
when the Councilmember makes a request to introduce that there will then be this
distribution to... and when the chair approves introduction, then it will be the
distribution of the bill...the county attorney opinion to everyone. Is that right?
Ms. Nakamura: I have some...
Ms. Yukimura: I know. I just want to get the answer to my
question, and then go to you.
Mr. Bynum: I want to make sure I don't make it worse. The
intention is that when it's the business of the body, because it's on the agenda,
everything goes through the chair and it is shared with all the members.
Ms. Yukimura: And I'm just clarifying that procedurally it will go
to the chair before it goes to everybody else, because it's to the chair that you go for
introduction of a bill?
Mr. Bynum: Yes.
Ms. Yukimura: Thank you. Councilmember Nakamura?
Ms. Nakamura: I have some language to try to redo this section.
Number 1, all legal requests to the county attorney should go .before the chair,
should be routed through the chair. Number 2, items not before the body are
considered privileged communication, and items before the body shall be shared
with the other Councilmembers. So to split it up in those three categories to try to
provide some clarity.
Ms. Yukimura: Councilmember Bynum?
Mr. Bynum: At this point, given where we are in this process, I
think those are interesting suggestions and I would ask if you would help work with
me with Mr. Morimoto, because we don't have anything. (Inaudible)
41
Ms. Yukimura: We're not working on the specific wording, but I
think that is very good conceptual wording too. Councilmember Rapozo?
Mr. Rapozo: I just got clarification from Ricky that the current
process is that all requests for county attorneys opinions goes through... or any
request to the county attorney goes to them via the council chair. That is the
current framework we're working under, that I assumed we were.
Ms. Yukimura: And it won't change unless we have a proposed rule
and pass a proposed rule. So we may not need to articulate it, but... Well, actually
then we should do that with all communications and I think actually there is
something in the rule about that. But we'll let you folks work on the wording in
between now and the next meeting, and we don't have to take a vote on this,
because I think it's going to be introduced anyway. And those who want to help
with the wording can help. So we're at the end of the list and it's quarter to 5, and
I'm .reminded that we did have a suggestion from Judge Laureta about an
alternative way to handle...
Council Chair Furfaro: That's on the 120 days?
Ms. Yukimura: It's on the whole. issue of getting something on the
agenda and he is suggesting an alternative way to the 120 days.
Council Chair Furfaro: That is what I'm saying, in place of the 120 days.
Ms. Yukimura: Councilmember Rapozo?
Mr. Rapozo: Like I told the judge when he testified that I did
agree with him that in fact there is a process already in place in the rules, I think
it's rule 7, where basically, the council or committee may be majority vote overrule
the decision of chair upon a motion of appeal which is duly seconded. And I think
this process, which basically says if the chair refuses to put an item on the agenda,
that we can do it that way. He has made a suggestion that I think is a good one. I
think that's common sense, but to... And again, I don't remember having the
discussion, and forgive me, I could have been traveling when you guys went through
this thing piece by piece.
Ms. Yukimura: You might have been.
Mr. Rapozo: I'm not sure. I thought I kept up with all the
meetings, but I don't recall the discussions.
Ms. Yukimura: I think you might have been away. So we will have
a full discussion at our next meeting on all the rules. What we can do is prepare
42
wording for Judge Laureta's proposal, so that we can have an alternative to that
recommended by the subcommittee. Would you like that?
Mr. Rapozo: This is not changes, it's just removing the 120-day
requirement, removing the...
Ms. Yukimura: No, it actually would require some notice to the
council so that there .can be an appeal of the decision of the chair. If it happens off
the record you're never going to have a chance to appeal the decision of the chair.
Mr. Rapozo: Well, I would assume you'd have to make a motion
to amend the agenda, at the meeting, and add it on, and... I mean assuming you
could get your votes. That's the only way you're going to overturn the decision. If
you wanted to add something on the agenda, you would do it that way. That
process is already in place.
Council Chair Furfaro: That is in place and we have used it before.
Mr. Rapozo: Correct. So there is no work to be done. It's not
broken is what I'm trying to say.
Mr. Bynum: Yes, it is.
Mr. Rapozo: In your opinion, but I'm saying if you are going to
try to address what Judge Laureta said, he is saying that you cannot... don't put in a
requirement for the chair. So his other recommendation was go see all the
committee chairs, the other committees, and if you cannot get the votes, you cannot
get the votes. But the opportunity is current right here. We can come in today...I
could... Right now I could say, you know, I want to make a motion, I want to add
something to the agenda. And if I had the votes, it would be on the agenda.
- Ms. Yukimura: But you would have to deal with it at the following
meeting because of the sunshine law.
Mr. Rapozo: What is the option? The alternative is (inaudible).
Ms. Yukimura: No, I'm not arguing. I'm just pointing out that that
is what would happen.
Mr. Rapozo: I know the rules. I'm just saying that the
mechanism is already here. The mechanism is here, and that is what I'm trying to
say. Why are we trying to fix something that is not broken? It's here. The
opportunity for any Councilmember to put an item on the agenda is here.
Ms. Yukimura: 'Okay, thank you.
43
Mr. Rapozo: And if you cannot get your votes for it, I'm sorry,
that is just the way it works.
Ms. Yukimura: That's right. Thank you. Mr. Bynum.
Mr. Bynum: I apologize for interjecting earlier, but in...from
personal experience, it is broken, it needs to be clarified, I didn't write the language
to this, and we'll have a discussion. But the... In the examples we're using, like
legislature, any member of the legislature can introduce a bill. It might get killed
quickly. Because in the legislature an agenda... a committee member has to just not
schedule a hearing. I will use an example was the kalo bill. A huge group of people
in this state wanted the state legislature to have a moratorium on GMO research of
Kalo, and they put on the bill on the agenda and it got killed. It never got a
committee hearing, but they couldn't keep them from putting it on the agenda. So
the next year people were saying, you know, have a hearing for my bill, because the
bill was introduced; it got killed quickly. The analogy in the county of Kauai is, if
any member can introduce a bill, and it happened to me last term, it can get killed
on first reading. Unusual. Inappropriate in my opinion. But under the, you
know... But at least the community knows that a bill was put forward and they can
look at it. The way that this operated in the past in this council, the chair had
preemptive veto power in secret to make sure that the public wasn't even aware
that the proposal was being made. So I know that is not the intent of this chair,
and I know that that would be... I can't fathom an instance where that would
happen, but it happened on this council, and I proposed a rule amendment
regarding this that I thought was continued to given appropriate latitude to the
chair and didn't have timelines on it and maybe we can discuss that. But I don't
think this chair intends to have preemptive veto power in secret.. So if... and I will
say, any Councilmember here that went through getting elected and has
constituents and has something that they think should be put before this body, I
believe they. should have that power . to do that. The chair should manage the
agenda, and say not now, we're too full, we're going to schedule it later, but I don't
think the chair should have the ability to keep something off indefinitely, without
any public notice. If it's a junk bill, it can get killed at first reading. It can get
killed even faster than that. If you can't get a second, it doesn't even make it past
first reading. So the idea is that hey, we got elected, we worked hard to do that. If
we want to put a proposal before the body and it is really dumb, we're going to look
bad. If you put a proposal before the body and you don't have a second, it will die
just like that. Even if you do have a second, this body could kill it on first reading.
So that is my dialogue for today, and I think we will get to this vote. But you
know, there is history here, documented on the public record of bills that had strong
support that never saw the light of day. And I don't know any legislative body
anywhere that keeps a member from the public knowing that they have a proposal
that they want to put forward and the body has to take some action to kill it. In the
44
legislature, they introduce thousands of bills. We know that, and so that kalo bill is
a perfect example. It didn't go anywhere, but it certainly got introduced and there
was public record of what the bill was, what the content was, and it didn't go
anywhere, and next year people demanded a hearing and they got it.
Earlier, Mr. Rapozo, you asked is there any body where...I forgot exactly how
you posed the question. But I would pose the question, is there any body that a
member can be precluded from even having the public knowledge about a proposal?
Ms. Yukimura: Chair?
Council Chair Furfaro: Yes. You know, I just want to say that in our
current situation, there is nothing that says every bill that gets introduced needs to
get to a second reading. It's called the democratic process. If you want something
at the time we're going to format an agenda and we move to approve the agenda,
and I stand up and I say, I would like to amend the agenda by considering a bill in
the future. The reality is I have the time to discuss amending the agenda for the
purpose of getting that on the record and having it show up in two weeks. When we
get to a first reading of that bill, and the members of the council, because I have
been part of the 4-3 loss in the first-round before, but I accepted it. I'm a Chicago
Cub fan, they lose all the time. That's the democratic process. When I'm talking to
Mr. Mickens who is Dodger fan, that is quite a winning ball club here, but if the
vote is taken not to pursue a bill after the first reading, and it fails, it dies. You
have to accept that. The vote is 5-2, the vote is 4-3. I have been on the losing end of
those, going into executive session and so forth. But I think we need to go back and
revisit. That opportunity does exist.
Secondly, I just want to say that... And B.C., I got this note, you need a
caption break. I also want to say that I am not going to prevent things from getting
onto the council agenda within reasonable time. But if there is something that
comes back from the county attorney and I have the signature, authorization of
putting something on the agenda, if there is a question of law, I would like to be
privileged to that information at the same time that the member requested for the
information. So then I can make a calculated decision about gee, maybe this bill
needs a little bit more work before I get it on the agenda. So based on whatever
those concerns were raised from the legal department, and I think that is how this
is set up, and it should work. I know there has been disappointments in the past
but the mechanism does exist. Eighteen, 19 weeks now I have not kept things off
the agenda. I have tried to be able to distribute responsibility equally, whether you
are the Chairman of the rules committee and the Chairman of this, you are the
Chairman of audit and finance, and the Chairman of human resources. I have had
Mr. Rapozo be the vice-chair of committee of the whole and so forth. When you folks
even want to reorganize on .4th of May, I have no problem putting that on the
agenda. I would hope that you would just move to receive it, but I didn't keep it off
the agenda. That is my message. And I think there are ways to be able to do our
45
business within the existing rules and I would say that I'm going to try to be fair
and equitable as the chairman.
Ms. Yukimura: Thank you, chair.. Councilmember Rapozo?
Mr. Rapozo: I guess I would concur. And we shouldn't be trying
to change rules to fix the errors of the past. I think what happened in the past is
the past, whether right, wrong, indifferent. But Mr. Furfaro, if he was to deny my
request to put something on the agenda, I can tell you right now, I'd go secure me a
second, and I would have at least five minutes at the following meeting to let the
public know how Mr. Furfaro tried to squelch my community service. I would do it.
And I think if it continued, I don't think Mr. Furfaro would be sitting on that chair
for long. I think that is what is built into this structure. I just want to say that the
mechanism is in place, and I think we should honor the institution.
Ms. Yukimura: Okay, so we have a caption break in one minute.
I'd like to just finish this up before our caption break to say that we'll have staff
prepare... actually all we have to do I guess is not vote for the 120-day
amendment...if we don't want to... Okay, we won't. I'm not going to conclude it if
there is more discussion. So we're just going to take a break now and recess.
There being no objections, the Chair recessed the meeting at 4:59 p.m.
The meeting was called back to order at 5:10 p.m., and proceeded as follows:
Ms. Yukimura: We were discussing the rule about introduction of
bills and Judge Laureta's suggestion, and I think we have had a lot of discussion on
it, and I don't believe there is any amendment to draft, because it would be basically
just voting down the proposed recommendation from the committee. Is there any
further discussion on that? Otherwise this kind of brings us to the end of the list.
Any discussion?
Mr. Kuali`i: When you said it would just be a matter of voting
down, you were talking about rule number 7? Because it's in there, and it says
"appeal," and it says "by a majority vote." That is an existing rule. I thought it was
the thing about putting something on the agenda, majority vote. Because wasn't
Judge Laureta talking about it takes five votes to override the mayor's veto, it
should take five votes too... So isn't that rule number 7, which says "appeal"? But
there are no changes provided there... suggested.
Ms. Yukimura: You may be right. There would have to be a change
in the two-thirds vote section, and Tim, held on a sec.
Mr. Kuali`i: Rule number 7, is very simple. It's just one
sentence. Page 13. The Council or committee may by a majority vote overrule the
46
decision of the chair upon a motion of appeal, which is duly seconded. So is that the
decision not to put something on the agenda?
Ms. Yukimura: No. The process would be... if we do not change our
existing rules, the process would be for a Councilmember to make a motion to place
something on the agenda to be discussed at the next meeting. And if the council
agreed, then it would pass it by four' votes, you know, by regular majority vote, if
they disagreed.
Mr. Rapozo: I think 92 says that; right? I think it's part of the
sunshine law, that it would require five votes to add something to the agenda. But I
will follow-up on that. Rule 7 is for if a ruling is made by the chair during a
meeting, then any member can appeal, and with a four, three vote...
Ms.. Yukimura: But if there is nothing on the agenda, the chair
won't make a...
Mr. Rapozo: Correct.
Ms. Yukimura: Won't make a decision about it; it would be a
matter of a vote.
Mr. Rapozo: The reason I used rule 7 as a reference, is because
if it takes a 4-3 vote it appeal a chair's decision, I think that standard should
probably be kept for the agenda. But I think we got to check with sunshine law
first, chapter 92.
Ms. Yukimura: Okay. Councilmember Bynum?
Mr. Bynum: I think we shouldn't... I don't want to continue this
discussion now, because... so I will stick with process. We're doing a report of the
rule's subcommittee. When we vote, it's now before the committee of the whole, any
member can make amendments, right?
Ms. Yukimura: That is correct.
Mr. Bynum: And so regarding this issue, I think we should save
it for later, because we kind of discussed it a lot today. But there are sunshine
issues, and there are, you know, this idea of making a motion. There is a history to
that and I will save that for a future meeting.
Ms. Yukimura: Okay. Thank you
Yes, Chair?
Any further discussion?
47
Council Chair Furfaro: I just want to point out the use of rule 7, so that we
all understand. We could have something existing on a discussion going on for an
item that was already approved on the agenda, and it might be straying off the
subject to some degree, and the council chair makes a ruling that we got to come
back to it. That rule I interpret it as being something that says four members can
then override the chair's decision at that time. That is the intent of that?
Ms. Yukimura: That is correct.
Council Chair Furfaro: I .just want to make sure some of our newer
members were clear on that in 7.
Ms. Yukimura: Thank you very much. Any further discussion on
any proposed changes in addition to the subcommittee report and
recommendations? If not, Councilmember Rapozo, are you okay with deferring
discussion on the committee's recommendations to our next meeting or would you
like me to go over it now?
Mr. Rapozo: I'm fine with deferring it.
Ms. Yukimura: Okay. If that is the case, then chair, I will hand it
back for you for a motion to defer.
Council Chair Furfaro: Thank you. Is there any more discussion before I
look for a motion to defer?
Ms. Nakamura: I also had an amendment that was attached. It
was really the first page.
Council Chair Furfaro: Go right ahead.
Ms. Nakamura: This has to do with this anti-nepotism rule
number 17, and we did receive some concerns from the county attorney's office, so
we incorporated the concerns and made some amendments. So I just wanted to
bring that up.
Ms. Yukimura: And we'll consider that will be formally moved as
an amendment at the next meet and thank you. That puts us a step closer for your
initiative to address one of the county attorney's concerns.
Mr. Kuali`i: I just wanted to be clear on process then going
forward. So between now and the next time we meet on this issue, if I wanted to
respond to some of the concerns I heard in testimony today from the citizens, I
would have to put forward an amendment to one particular rule? If it's different
than what's written?
48
Council Chair Furfaro: Yes.
Mr. Kuali`i: Okay, then I expect to do that.
Ms. Yukimura: Okay. If you want to give notice to the committee
before that, so they can think about it, that would be useful, too. And you can
circulate your proposed changes of rules so that people can have time to consider it.
Oh, I'm sorry, it's back to the chair.
Council Chair Furfaro: And please communicate that to the subcommittee
chairwoman, Councilwoman Yukimura. Mr. Rapozo?
Mr. Rapozo: I did speak with Councilmember "Yukimura on the
break. I will be drafting an amendment, possibly, we'll see how the discussion goes,
but regarding rule number 2, 4, which is authorizing the public release of opinions
with a supermajority, two-thirds vote. I believe that if we're going to release a
county attorney's opinion pertaining to a discussion that is ongoing and pending
that in fact it should require a unanimous vote, because simply, I think was was
discussed many times, once that privilege is waived to the public, then from that
moment on, it is forever waived. And many times, as we all know, if we have been
in this legislative arena for a while, oftentimes it's. quite important to retain that
information until the bill does hit the floor..
Council Chair Furfaro: On that note, I would just want to ask the vice
chairs, the chairs of the subcommittees, if they could be giving some thought about
process here, because there may be some amendments that members, including
myself, would like to support, and yet, .there might be amendments that I want to
reserve comment for until I actually see it. So be thinking in your committee, if
we're voting by rule change at this point. Other than that, I guess..., Go right
ahead, Councilwoman.
Ms. Yukimura: Yes, thank you, chair for that prompting, because I
have been thinking about it and right now and I welcome input in between. But I
would think we would begin in seriatim with each recommendation of the
committee, and we would consider alternatives to the recommendation, take them
one by one, and then vote on the total package. But if there are suggestions for an
alternative process, please let me know. And I just want to thank you all for. a very
robust discuss today. Rules are dreary. They are not as exciting as other subject
matters, but they are important for our process. And so this was an important
discussion and I thank you all.
Council Chair Furfaro: Thank you for the comments about considering
voting by seriatim on the individual items. If not I'm looking for a motion to defer?
49
Upon motion duly made by Councilmember Rapozo, seconded by
Councilmember Yukimura, and unanimously carried, COW 2011-06
was deferred.
Council Chair Furfaro: The next item, I'm not sure where we are at on the
subcommittee for the human resource department. So I, as I mentioned earlier, will
be turning the meeting over to the subcommittee chairpersons, but let me at least
have the item read for the human resource committee.
CR-COW 2011-14 on COW 2011-05 Communication (04/20/2011) from
Human Resources Subcommittee Chair Bynum,
transmitting the "Report of the Human Resources
Sub-Committee," pursuant to Resolution No. 2011-04,
Draft 1, as amended by Resolution No. 2011-43, for the
committee's information and consideration.
(Received for the record)
There being no further business, the meeting was adjourned at 6:35 pm.
ubmitted,
Aida Okasaki "
Legislative Services Aide
APPROVED at the Committee Meeting held on May 11, 2 Q 1.1:
Jay F ,
Comm' o e ,
50
RULE NO. 17
RESTRICTION ON EMPLOYMENT OF RELATIVES
(a) A public officer of the legislative branch of County government may not
appoint, employ, promote, advance, or advocate for appointment, employment,
promotion, or advancement, in or to [a] a_n_ appointed, non-civil service position in
the legislative branch of County government any individual who is his or her
relative or domestic partner, or is a relative or a relative of a domestic partner of
any public officer.
[(b) An individual appointed, employed, promoted, or advanced in violation
of this rule is not entitled to pay, and money may not be paid from the county
treasury to an individual so appointed, employed, promoted, or advanced.]
[(c)J~b For the purpose of this rule, "relative" means an individual who
is related to a public officer of the legislative branch of County government as
father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew,
niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law,
brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter,
stepbrother, stepsister, half brother, or half sister.
[(d)J~ For the purpose of this rule, "domestic partner" means an adult,
unrelated by blood, with whom a public officer: (1) has an exclusive committed
relationship, (2) maintains a mutual residence, and (3) shares the cost of basic
living expenses. A "relative of a domestic partner" means the father, mother,
brother, sister, son or daughter of the domestic partner of a public officer.
[(e)]~ For the purpose of this rule, "public officer" shall mean members
of the Council, the County Clerk and the County Auditor.
(e) This rule shall not apply to individuals appointed employed
promoted, or advanced prior to the effective date of this rule
ATTACHMENT 1
Page 1 of 2
Additional Revisions
1. Require County Attorney's approval as to form and legality before bill is introduced.
2. New amendments proposed at a committee meeting should be voted on at the
following committee meeting.
3. All unfinished bills die at the end of the council term.
4. Bills must be received by the full Council and not in committee.
5. If a motion to approve or receive a bill fails, no action has been taken and a vote to
approve or receive must follow.
6. Clarify Rule 6(c) regarding motions to receive.
7. Permit circulation of County Attorney opinions requested by an individual
councilmember once the subject matter is placed on the Council agenda
ATTACHMENT 1
Page 2 of 2