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HomeMy WebLinkAbout04/18/2012 COMMITTEE OF THE WHOLE Committee Meeting MINUTES COMMITTEE OF THE WHOLE April 18, 2012 A meeting of the Committee of the Whole of the Council of the County of Kauai, State of Hawai`i, was called to order by Councilmember Jay Furfaro, Chair, at the Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday, April 18, 2012, at 10:05 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 There being no objections, the rules were suspended to take public testimony regarding ES-538. KANI BLACKWELL: Thank you. My name is Kani Blackwell, although some of you know me as Doctor B. I am here to speak in support of the P.O.H.A.K.U. Program. I am sure that you are aware that the program is based upon restitution rather than conviction, incarceration, and subsequently a criminal record. Some of the misdemeanor offenses that are referred to this program are trespassing, driving without insurance, camping without a permit, petty theft, vandalism, and minor drug offenses. These are non-violent, one-time offenders who will get a second chance at life by participating in the P.O.H.A.K.U. Program. The Program itself has been designed by professional people who understand the concept of hooponopono, taking responsibilities for one's actions. I had been hired to be one of two (2) instructors by the Strategic Justice Partners, the firm that has provided the content and the training for the P.O.H.A.K.U. Program. Men and women who have participated in the program were most appreciative and grateful for getting that second chance. When they read their hohoike contracts or promises for what they were going to do differently, I became a true believer in the program. Changing behavior and becoming involved as a meaningful contributing community member is a great contribution and a very worthy project of Kauai. There havebeen forty people since January who had been given that second chance and another ten (10) have already been signed up for May 12. Because we often see the value of something by the real people that are served, I am going to mention just two (2) examples of people that participated in the program. One was a mother who 2 COW Committee Meeting April 18, 2012 had shoplifted and she did it with her young daughter present. With tears in her eyes, she shared with the group how thankful she was for getting that second chance in life. At the end of class, she hugged me and said, I will be that upright abiding citizen that you spoke of in this class, for I want to model that behavior for my daughter. The second example is a young man who wanted only to see the meteorite shower from the top of a high building. One (1) evening, he and some friends climbed the old Kekaha Sugar Mill and were cited for trespassing. He explained to our group that surfing and fishing at the Pacific Missile Range Facility were his joys of life and that if he had a criminal record, he would no longer be allowed to enter the grounds at PMRF. At the end of class when asked what he would have done differently, he emphatically said, the next time I see a no trespassing sign, you better believe I am going to be obeying what it says, no trespassing. We did not hug but he gave me a high five. I share these two (2) examples with you for I want you to know that whatever you are considering today about the P.O.H.A.K.U. Program, you should know that the program does work and that our community is going to be better and lives will be changed because of the P.O.H.A.K.U. Program. Chair Furfaro: Thank you very much. Is there anyone else that would like to take this time on the consent calendar? MILTON CHING: Good morning, aloha kakahiaka. My name is Milton Ching and I represent the Kapa'a First Hawaiian Church in Kapa`a. We do not have a minister at this time, so I sit in in the position of moderator. On behalf of the church, its Council members and its members, we are in support of the P.O.H.A.K.U. Program. We have had participants who have come to the church and assist the church in cleaning up, sweeping, and we even had participants come to church on their own free will. We believe that this program helps the participants in this time of need. We are here in front of the Honorable Council in support of the program. Thank you. Mahalo nui loa. Chair Furfaro: Mr. Ching, do you have testimony we can make copies of? Mr. Chang: He sent it this morning. Chair Furfaro: Oh, okay. Is there anyone else that would like to testify on the consent calendar? KEN TAYLOR: Chair, members of the Council, my name is Ken Taylor. I guess I am somewhat disturbed to see this continue on the agenda. It seems to me that there is plenty of work that you folks have before you without having to micromanage this Department. I think the request have been for moving 3 COW Committee Meeting April 18, 2012 this project forward and you folks really have the obligation of saying yes or no to that without getting into all of the details of cost benefit and all of that. I think as we move into the election year, you should be spending more time doing your job and less time on micromanaging individual Departments. I would hope that you will move forward and approve this and let us move on with it and get down to the real business of taking care of the County as the whole. Thank you. The meeting was called back top order, and there being no objections, the Committee was in recess at 10:13 a.m. The Committee was called back to order at to 3:30 p.m., and proceeded as follows: II Minutes of the March 21, 2012 Committee of the Whole Meeting. Upon motion duly made by Mr. Rapozo, seconded by Mr. Chang, and unanimously carried, the Minutes of the March 21, 2012 meeting was approved. The Committee proceeded on its agenda item as follows: There being no objections, the rules were suspended. ALFRED B. CASTILLO, COUNTY ATTORNEY: Al Castillo, County Attorney. For your consideration ES-538. ES-538 Pursuant to HRS section 92-5(a) (2), (4) and (6), and Kaua`i County Charter section 3.07(e), the purpose of this executive session is to provide council with a briefing on the Prosecuting Attorney's P.O.H.A.K.U. Program and its request for approval to apply and receive technical assistance for its programs, including P.O.H.A.K.U., from the Bureau of Justice Assistance and the Vera Institute of Justice's national Cost- Benefit Knowledge Bank for Criminal Justice and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. [This item was deferred.] There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Bynum moved to convene in Executive Session to discuss ES-538, seconded by Mr. Chang. Chair Furfaro: Is there anyone that wishes to testify? Jennifer. There being no objections, the rules were suspended. 4 COW Committee Meeting April 18, 2012 JENNIFER WINN, DEPUTY COUNTY ATTORNEY: Deputy County Attorney Jennifer Winn on behalf of the Office of the Prosecuting Attorney. I wanted to let the Council know that yesterday we asked for a deferral on this matter for two (2) weeks. I did receive a reply back that such a deferral was not likely. I did want to note that we object to an Executive Session at this time. My understanding is that Council through the Chair sent questions to the Office of the Prosecuting Attorney and they are in the process of getting answers to those questions and also of course continuing the ongoing process of bettering the program that is at issue here. A delay may be helpful to your discussion to clarify or resolve any issues. This item or a similar item was previously received and before you take it up again, a more thorough information may be helpful. Chair Furfaro: Jennifer, I want to say that I am of the impression that I did receive yesterday responses from the Prosecutor's Office on some of the questions. Ms. Winn: Okay. Chair Furfaro: I also want to point out that I will share those responses. But the agenda item is only a briefing. There is no expected vote for any action. It is simply a briefing. Ms. Winn: Thank you. Mr. Rapozo: Jennifer, thank you for being here. The request to defer is from the Office of the Prosecuting Attorney? Ms. Winn: Yes, through me. Mr. Rapozo: Yes, obviously because you are here representing them here today. Ms. Winn: Yes. Mr. Rapozo: And it is true that the Office of the Prosecuting Attorney had requested that the application be received, that they were no longer interested in applying for this grant? Ms. Winn: I believe —yes, as of two (2) weeks ago. Mr. Rapozo: Which then caused the Council to take the action of receiving the item, so the application for this Bureau of Justice Assistance and Vera Institute Grant is moot, the application has been — there is no request for 5 COW Committee Meeting April 18, 2012 that anymore as I understand it; that is the communication that I received from the Prosecutor's Office. Ms. Winn: That is my understanding. Mr. Rapozo: Okay. So your request for the deferral is — and I guess I am trying to understand what the request was for — there was questions sent to the Prosecuting Attorney? Ms. Winn: There was questions sent to the Prosecuting Attorney, my last... Mr. Rapozo: By this Council? Ms. Winn: Yes. My last conversation with First Deputy Jake Delaplane was that they were in the process of getting answers. They wanted more time to provide more thorough information to this body. Mr. Rapozo: Okay. Chair Furfaro: I am looking if I have anything that indicates that they are no longer pursuing that grant. Do I have that? Ms. Winn: I am not sure, but I am sure that last week they asked to receive it. Chair Furfaro: What Mr. Rapozo is referencing, do I have that? Ms. Winn: I do not know if you have it, I am sorry. Mr. Rapozo: It was an email, Mr. Chair, that we got last week. That is what generated the motion to receive. Chair Furfaro: I think what generated the motion to receive was also that maybe the posting was unclear. Mr. Rapozo: On the Executive Session item. Chair Furfaro: Yes. Mr. Rapozo: But I am talking about the application, the request for application was requested that it be received by the Office of the Prosecuting Attorneys. 6 COW Committee Meeting April 18, 2012 Chair Furfaro: I am going to take a recess here to make sure that someone is in receipt of that email because I have not seen it. There being no objections, the Committee recessed at 3:37 p.m. The Committee reconvened at 3:50 p.m., and proceeded as follows: There being no objections, the rules were suspended. Chair Furfaro: May I ask you to read from that communication that as during budget time, my email is almost overwhelmed. Ms. Winn: The email says, aloha all, our Office is requesting that both items set for the Special Council Meeting be received. We were sent communications last night by the County Attorney's Office and the Mayor's Office that we would like to review before proceeding on these matters. Given our request, I will not be present at today's Special Council Meeting unless we receive further communication from the Chair or his designee. Please send me a confirmation that you have received this message. Mahalo, Shay. Chair Furfaro: Am I understanding that the request is only for two (2) weeks? Ms. Winn: Yes. Chair Furfaro: May I ask if you have anything that indicates that one of the grants are not going to be pursued. Ms. Winn: I do not have anything other than this email that I just read. Chair Furfaro: Okay. Jennifer, there are a few questions for you. Mr. Bynum: This email was sent on the 11th regarding last week's agenda item which was received as requested. '.; Ms. Winn: That is my understanding. Mr. Bynum: And it has been reposted today for a briefing? Ms. Winn: That is my understanding. 7 COW Committee Meeting April 18, 2012 Mr. Bynum: Okay. Chair Furfaro: And you are asking for two (2) weeks? Ms. Winn: Correct. Chair Furfaro: If there are no more questions, I am going to ask the County Attorney to come up. JoAnn. Ms. Yukimura: What is the reason for the request for deferral? Ms. Winn: The Chair just provided me with information that the First Deputy apparently sent over last night; however, I nevertheless received an email this morning from my client asking to object to you going into Executive Session today. I am aware of a meeting that the Prosecuting Attorney is having today relating to this issue and that I am assuming that she wants to provide more information. Chair Furfaro: The response I got late last night, I have not had an opportunity to share with the Councilmembers, and the copy I gave you was more or less in response to my questions, and you just got it now. Ms. Winn: Correct. Chair Furfaro: Mr. Castillo, may I ask you to come up? Jennifer, one more question. Anything you have here is not time sensitive if we waited two (2) weeks? Ms. Winn: I am sorry, I do not understand. Chair Furfaro: If we defer this for two (2) weeks, any Program action or processing— there is no urgency from your client? Ms. Winn: My client has requested the deferral. Chair Furfaro: Okay, I just wanted to get that on record. MONA CLARK, DEPUTY COUNTY ATTORNEY: Mona Clark, Deputy County Attorney. To start with, the Executive Session was not scheduled at the Prosecutor's request. It is informational briefing for the Council so that you will understand potential issues. It is to increase your knowledge base and it goes towards the County's current situation as far as P.O.H.A.K.U. P.O.H.A.K.U. is an 8 COW Committee Meeting April 18, 2012 ongoing program; though grants may not be pursued vigorously at this moment, P.O.H.A.K.U. is going to continue as a program, it has been continuing for the last year or so. The fact that the Prosecutor's requesting a deferral does not affect whether you should have knowledge or not and what your level of knowledge should be. I would think that the more knowledge that you have, the more beneficial it is to you in dealing with issues that come before you. Mr. Rapozo: Thank you, Mona, and I do agree with you a hundred percent that the more information is better for this Council but would it not make sense for us to get all the information and if there is some information that we cannot access today and we will not be able to get it for another two (2) weeks, would it not make more sense for us to reschedule the meeting until we get all the necessary information? From what I heard from Jennifer was that the Prosecutor was meeting today to discuss this same issue, and I am not aware who she is meeting with, but apparently she was meeting with someone to discuss this ongoing issue and that is happening today. It would make sense to me that if in fact there are information out there that would benefit this Council, that we would wait for the information. Especially being that the request was coming from the County Attorney's Office on behalf of their client. Ms. Clark: Right and I am the Deputy County Attorney responding to the Council request. I think you are in a better position if you have Y p Y more information to make decisions. I think it is always a positive thing. I do not think that you can operate in a vacuum. I think you should have the full extended knowledge available to you. Simply because you are getting information and from one other source, this will not prevent you from getting that additional information, it will just supplement your knowledge so that you can ask applicable questions. Ms. Yukimura: Is there some possibilities for liability that could affect the County? Ms. Clark: Yes. The briefing is going towards the liabilities and duties of the County. Ms. Yukimura: And sometimes timely information can either mitigate or... I mean lessen or increase the liability if we wait, so there is some amount of time sensitivity to this information, is there not? Ms. Clark: I think it is important that the Council has as much information as possible, as soon as possible. Ms. Yukimura: And if there is more information in the future we can repost the meeting to get other information? 9 COW Committee Meeting April 18, 2012 Ms. Clark: That is correct. Mr. Kuali`i: My question has to do with the posting. If the prior matter that was received by this Council had to do with the request for approval to apply and receive technical assistance towards programs including P.O.H.A.K.U. from the Bureau of Justice Assistance and the Vera Institute of Justice's national Cost-Benefit Knowledge Bank for Criminal Justice, if that grant as County Attorney Winn told us is no longer being requested and that is not moot, and I think we knew already back then that it was the request. That was why the Prosecutor asked us to receive it and that is what the email is about and it is also what her testimony to us a couple weeks ago was about, why is that posted as such? Why does it not end with — to provide the Council with a briefing on the Prosecuting Attorney's P.O.H.A.K.U. Program? Ms. Clark: There is information provided in her request that may be discussed. Mr. Kuali`i: And it is information regarding the P.O.H.A.K.U. Program? Ms. Clark: Correct. Mr. Kuali`i: So it is really not about the application or approval for... to apply and receive... it is not that anymore, right? So why did we post it? This looks like a posting that there are two (2) matters that are up for consideration in the Executive Session and I think the second matter is not because it was received. Why is it coming before us again? We did not ask for that or did we? Ms. Clark: You have two (2) matters, there are the P.O.H.A.K.U. Program, it is connected to the request. The request contains information independently and that information about the P.O.H.A.K.U. Program may be involved in our discussions and therefore the notice have been provided of that fact. Mr. Bynum: The County Attorney's Office was prepared to offer the briefing last week? Ms. Clark: That is correct, we were. Mr. Bynum: And there was a request for receipt which was granted and now you are prepared today to give us a briefing? Ms. Clark: That is correct. 10 COW Committee Meeting April 18, 2012 Mr. Bynum: Thank you. Mr. Rapozo: Is Ms. Winn going to be available for the Executive Session as well? Ms. Clark: No, she will not be. Mr. Rapozo: And why not? Ms. Clark: If we request her presence to... could we get her if we asked? Ms. Yukimura: No... Ms. Clark: She is representing an Office that is being discussed, why would we not be able to ask the County Con Attorney questions? Y Y Yq Ms. Yukimura: Because this is like sitting in a meeting between the County Attorney and his client, you would not allow other people to be part of that kind of briefing. Mr. Castillo: Council Chair. Chair Furfaro: Answer my question when I direct a question to you. Does the County Prosecuting Attorney, for a briefing between the County Attorney and the Council, have standing, yes or no? You are briefing us, that is the agenda item. Mr. Castillo: The question is does the Prosecuting Attorney have standing? Chair Furfaro: Yes. Mr. Castillo: No. Chair Furfaro: Okay, you answered the question. Mr. Rapozo: I am just saying that if we are in fact finding mode and there is a question as far as whatever is going to be discussed and the County Attorney — Deputy County Attorney representing the Prosecutor's Office is available, we can ask a question. Mr. Castillo: Council Chair, may I answer that question? 11 COW Committee Meeting April 18, 2012 Chair Furfaro: Yes. And I want to make sure I made it short because I did not like the activity that was going on at the table. I had two (2) Councilmembers posing questions and so forth, I just quickly tried to pull it back. You have the floor. Mr. Castillo: Thank you, Council Chair. The procedure is that the County Attorney's Office will be providing you with the Executive Session and with the duties and liabilities and so forth. The Council may call in resource persons, and the resource person to answer questions would be Jennifer Winn with the Prosecutor's Office, so that can be had. The first thing — if you need a resource person then you can invite the resource person in but not to tell you what the law is. It is basically to gather information. Mr. Rapozo: That is exactly what I asked, was if we had questions. Mr. Castillo: Yes. Mr. Rapozo: Not to get an opinion. Mr. Castillo: And I answered you. Mr. Rapozo: Yes, you did. That is not what was said earlier, so I just wanted to clarify what I was asking... who is asking for the Executive Session? Is it the Council or County Attorney's Office? Mr. Castillo: It arose from questions from the County Council. Mr. Rapozo: Right, so it is a Council request? Mr. Castillo: Yes. Mr. Rapozo: So if the Council requests an Executive Session and like we did with Public Works, we want to talk to the Engineer... Mr. Castillo: Yes, it is similar. Mr. Rapozo: Thank you very much. My question to you, Al as the Department Head if you can make Jennifer Winn available in the event. Mr. Castillo: Absolutely. 12 COW Committee Meeting April 18, 2012 • Mr. Rapozo: And I may not have any questions, but in the event that we do. Mr. Castillo: I will give her a call. Ms. Yukimura: You are not saying that this resource person can be available while the County Attorney counsels the Council as its client? Mr. Castillo: That is correct. Ms. Yukimura: That is correct that it is not appropriate? 1 Mr. Castillo: We are always in there in the Executive Session and if you have a resource person come in, we should be there also to advise the Council. Ms. Yukimura: At the same time that you are speaking to us as clients of yours in an attorney/client relationship? Mr. Castillo: You wanted a resource person to give you information right? Ms. Yukimura: Well resource or not, is that allowable? Are you waiving the privilege between attorney/client then? Are we waiving the privilege? Mr. Castillo: Are you waiving the privilege? Ms. Yukimura: By allowing a person in while you are advising the Council as your client? Mr. Castillo: No, we would not be advising you during the same period of time. Ms. Yukimura: Okay, so that is the clarification I just wanted to get. Mr. Rapozo: I just want to make sure — I was not asking for the Deputy County Attorney to be in present when you are briefing us. I think I made it clear, if we had a question, that she could be available. Mr. Castillo: Yes. 13 COW Committee Meeting April 18, 2012 Mr. Rapozo: Obviously when we are getting briefed by you as your client, you are our attorney— no one else will be in that room. Mr. Castillo: Yes. Mr. Kuali`i: When the Chair asked whether the Prosecuting Attorney had standing, you said no. I heard that answer. So if the Prosecutor does not have standing, is her representative as a Deputy County Attorney coming before us and saying or suggesting that we defer, is that appropriate for us to consider deferral at her request for the Prosecutor? Mr. Castillo: That was a long question. I am trying to break down your question so that I can answer it appropriately. On the standing question, I took it to mean that whether or not the Prosecuting Attorney had standing to go into Executive Session and give advice on the law. My answer to that was no. I do not understand your question regarding what is appropriate for deferral. Mr. Kuali`i: I am just saying as you advising us, I am just saying that Jennifer Winn came before us and spoke on behalf of the Prosecutor and said that there are questions that still need to be answered and they want to give us more information and that a delay would be helpful to us in our decision, she said all of that and asked for a two (2) week deferral. I am asking is it appropriate for us to consider that two (2) week deferral legally? Mr. Castillo: To me it is like any Department or any citizen coming up here asking for a deferral and giving you the basis of their request. It is for this body to decide whether or not they are going to vote yes or no on that request. Mr. Kuali`i: Okay. Chair Furfaro: I want to say first of all I did respond to this email after checking my records and as I said budget time I am getting tons and tons of correspondence. This email really says that that Office is requesting that both items be set for a Special Council Meeting and be received. I am sorry that Jennifer has left but my question was to get clarification that the Prosecutor's Office is no longer pursuing the grant; I do not see that in this email. What I see in this email is that they are asking for a motion to receive both items. It does not mean that we would not resurrect it like we did for this period. I still do not have something that says to me that the Prosecutor's Office is asking or telling the Council that they are no longer pursuing this grant. 14 COW Committee Meeting April 18, 2012 Mr. Castillo: Council Chair and each and everyone of you reading that email message, how you interrupt that is how you interrupt that. Chair Furfaro: Well I want to interrupt with clear English that I am not pursuing the grant. That is not what this says but the Attorney that is representing that Office says that they are no longer pursuing the grant. On that, I have a tendency to want to get that part cleared up and consider getting a deferral until I see something that indicates they are no longer pursuing the grant. Do you have anything to that effect? Mr. Castillo: No. Chair Furfaro: Because it indicates that they met with the County Attorney and the Mayor's Office. Mr. Castillo: I do not have any more information than what you have there and what Jennifer Winn testified earlier. Ms. Yukimura: The briefing can involve issues independent of the grant itself and perhaps based on the P.O.H.A.K.U. Project right? Mr. Castillo: Yes. Ms. Yukimura: So that even if we were to get clear indication of not pursing the grant, that does not mean that there is no issue to discuss today especially regarding liability of the County. Chair Furfaro: Please do not misunderstand what I was saying here. I was told that they sent me an email that said they were not pursuing the grant. Going through all of my emails, it does not say that. So I am not fully informed. I am asking if you have that? I did not want to drag this out about could we still have... I just wanted to know if you had something different than what I have? The answer is no. Mr. Castillo: The answer is no. To answer Councilmember Yukimura's question and comment, the agenda item is specific and broad in nature, it does indentify the P.O.H.A.K.U. Program. You had testimony this morning regarding the P.O.H.A.K.U. Program which is a live program that is active right now and this Executive Session clearly will be discussing that aspect of the agenda item which Mona is prepared to advise the Council. Chair Furfaro: Al that is the whole reason why we had to repost it. 15 COW Committee Meeting April 18, 2012 Mr. Castillo: Yes. Chair Furfaro: P.O.H.A.K.U. and Vera. Mr. Castillo: Yes. Chair Furfaro: I am trying to get clear that I am supposed to have affirmation that they are no longer pursuing the grant. This is not the affirmation. Mr. Castillo: Yes. It can be interpreted that way, I agree. Mr. Rapozo: I think the affirmation came from Jennifer Winn. She is the legal representative and I think we heard what she said. Mr. Castillo: Yes and how it was received, whichever way you take it, is the way you take it. Mr. Rapozo: Well Jennifer, I thought made it clear that they are no longer pursuing the grant. I think being that the Prosecutor is a former Councilmember, she understands what receive is versus if it came from another Department Head that has never served on the Council. On the Council when you make a motion to receive, it is to kill it. We all know that. Not everyone knows that but the former Councilwoman would know that and I think with the discussion that Jennifer Winn provided, I am clear that this is no longer being pursued. There is the P.O.H.A.K.U. component that is posted as well and I acknowledge that. Chair Furfaro: And if we receive something from one week, it does not prevent us from reposting a new item, right? Let us make sure we understand that part too? Mr. Castillo: That is correct. Chair Furfaro: Mona, do you have anything more to add? Ms. Clark: No. The meeting was called back to order, and proceeded as follows: Ms. Yukimura: Move to go into Executive Session. Mr. Rapozo moved to defer ES-538, seconded by Mr. Kuali`i. There being no objections, the Comittee recessed at 4:14 p.m. 16 COW Committee Meeting April 18, 2012 The Committee reconvened at 4:17 p.m., and proceeded as follows: Chair Furfaro: We have a motion to defer, and I want to clarify that the deferral is just for two (2) weeks. The motion to defer ES-538 was then put, and carried by the following vote: FOR DEFERRAL: Chang, Kuali`i, Rapozo, Furfaro TOTAL— 4, AGAINST DEFERRAL: Bynum, Nakamura, Yukimura TOTAL— 3, EXCUSED & NOT VOTING: None TOTAL— 0. There being no further business, the meeting was adjourned at 4:19 p.m. Respectfully submitted, Darrellyne M. Simao Council Services Assistant II APPROVED at the Committee Meeting held on May 2, 2012: JAY FURFAR G i��� CHAIR, COW "°o EE •