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HomeMy WebLinkAbout2012_ 0521_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 6/25/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date May 21, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:05 p.m. Meeting Recessed: 6:05 p.m. Meeting Resumed: 4:30 p.m., 5/23/12 Meeting Adjourned: 6:35 p.m. Present Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: Joel Guy; James Nishida; Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Legal Consultant Curtis Shiramizu; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrative Aide Teresa Tamura Public Testifiers: Charlie Iona Excused Member: Mary Lou Barela; Ed Justus Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:05 m. with 5 Commissioners present Approval of Regular Open Session Minutes of April 23, 2012 Mr. TenBruggencate moved to approve the Minutes minutes as circulated. Ms. Suzawa seconded the motion. Motion carried 5:0 Executive Chair Stack read the Hawai'i Revised Statutes Session provision as outlined on the agenda to take the Commission into Executive Session for consideration of ES-3 as listed. Mr. TenBruggencate moved to suspend going into Executive Session until Attorney Castillo arrived. Business CRC 2012-02 Deliberation and decision-making on a possible amendment to the Kaua'i County Charter related to Article VII, Section 7.05 as to the Mayor's authority over commission-appointed department heads (ongoing) Mr. TenBruggencate moved to defer this item to follow the Executive Session. Ms. Suzawa seconded the motion. Motion carried 5:0 Charter Review Commission Open Session May 21, 2012 Page 2 SUBJECT DISCUSSION ACTION Charlie Iona declared for the record that he is appearing as a private individual who sits on the Police Commission but he is not testifying on behalf of the Police Commission as a whole regarding the matter that stemmed from what happened to the Police Chief. The Mayor contends all along that he has the power to do what he did and that is the Mayor's prerogative. What the Mayor did is presently silent in the Charter. Another section of the Charter is silent but different actions were taken. This pertains to the Salary Commission and their minutes of the August 5, 2011 meeting which are public record. The minutes reflect a dialogue between Administrator John Isobe and the Salary Commission. It pertained to whether the Mayor had the right to freeze salaries or not. The dialogue states: Mr. Isobe: I think that was the overriding question that we discussed at the Commission's last meeting and that the Resolution that was passed previously by this body which states that the Council and the Mayor could freeze the wages based on the budget and, in fact, this current budget does not provide for any salary increases. The question that arose was whether or not the Commission's Resolution,which states that the Council and Mayor could freeze the salaries based on the budget, was an improper statement or not because only the appointing authorities can freeze the salaries. The Mayor has the authority to freeze the salaries of all department heads which are under his control. For example, the Mayor has the authority to freeze the salary of the County Engineer but he does not have the authority to unilaterally freeze the salary of the Planning Director. The Mayor has the control over salary freezes of those he appointed. He does not have that authority over those who are appointed by Commissions. This provision is also silent under §7.05. It does not talk about freezing salaries. You have 2 silent languages; one pertaining to discipline and one pertaining to salaries. With regard to salaries, they recognized they went through the Commissions because the Chair of the Salary Commission further stated that the salaries they were setting were simply maximums and it is left up to those Commissions whether they want to give salaries of the maximum caps to Charter Review Commission Open Session May 21, 2012 Page 3 SUBJECT DISCUSSION ACTION their appointees or not. Because it is silent there is the situation as in §7.05 of discipline which is also silent under those provisions and yet he elected to Mr. TenBruggencate moved again to defer CRC o the other way around. 2012-02 until after the Executive Session. Executive Mr. TenBruggencate moved to go into Executive Session Session at 4:16 p.m. to consider item ES-3. Ms. Suzawa seconded the motion. Motion carried 5:0 Chair Stack read the Hawai'i Revised Statutes as described on the agenda that would take the Commission into Executive Session for item ES- 3 Return to The meeting resumed in Open Session at 5:07 p.m. Open Session Business CRC 2012-02—continued Mr. TenBruggencate said his position continues to be that the Charter is clear and he disagrees with the position of the Administration and its Attorney. He said he was willing to push this out to await the Resolution of the court. If it does not go in a way that clarifies the intent and prevents disruption to County activities in the future then he would be fully prepared to make changes to the Charter. Asked to explain if the court's Declaratory Decision would just provide a ruling on the petition or actually provide the language that should be written into the Charter, Attorney Winn said it would be an interpretation of the language that is already in the Charter. There are 3 possibilities; 1) pursuant to the language the Mayor does have this authority, 2) due to the language the Police Commission has the authority, or 3)they could say they will not make the decision regarding this. Mr. Nishida moved to defer the item until the filing of the Declaratory Order. Ms. Suzawa Charter Review Commission Open Session May 21, 2012 Page 4 SUBJECT DISCUSSION ACTION seconded the motion. Mr.TenBruggencate asked that the motion be expanded to ask the Staff to bring the issue back to the Commission, in consultation with the County Attorney's Office, when there is legal action. Mr. Nishida amended his motion to include the expanded motion as suggested. Mr. TenBruggencate seconded the motion. Motion carried 5:0 Attorney Winn further explained that whatever happens as a result of the Declaratory Order action as to the circumstances is separate. Whether or not the Commission likes what the Judge rules that may be when they want to look at the Charter and create language as needed. Because it is a Court Order,unless it is appealed that decision needs to be followed. Mr. TenBruggencate said after the Court makes its ruling, from that point on that is the way it has to be read. Attorney Winn told the Commission that the Declaratory Order has not been filed in Court but Special Counsel has been hired for the Police Commission. Charles Iona—There is a lot riding on this because the ruling will ultimately affect the Commissions of all counties and the ruling will be very impactful. CRC 2011-17 Proposed amendments from Commissioner Justus revising Article III, County Council, Sections 3.02 Composition, Section 3.03 Terms, and Section 3.04 Qualifications relating to Partial Districting. (ongoing) b. Discussion and possible decision-making on the findings and recommendations of the Special Committee on County Districting to the Charter Review Commission as presented to the Commission at the April 23, 2012 meeting, pursuant to HRS §92-2.5 Charter Review Commission Open Session May 21, 2012 Page 5 SUBJECT DISCUSSION ACTION c. Special Committee proposed amendment for County Council Partial Districting (Four District/Three At-Large) d. Special Committee proposed amendment for County Council Districting— Seven Districts, At-Large Ms. Suzawa said Proposal I as shown on the last page of the report was discussed but not necessarily chosen. It was still an option with 3 seats At- Large and 4 District seats. Item II left all 7 County Council seats At-Large. Item III was thought as being an ideal proposal by creating neighborhood boards. Item IV may be more realistic if a Councilmember was assigned to be in charge of a District to allow those communities to be heard rather than voting by Districts. The Sub-committee could not reach a conclusion on the proposals and thought it should be left up to the Commission as a whole to discuss since it is not ready for the ballot. Mr. TenBruggencate moved to defer this item to the June meeting. Mr. Nishida seconded the motion. Motion carried 5:0 CRC 2012-08 Review and discussion of Findings &Purpose and Ballot Questions for consideration of moving proposed charter amendments for legal review by the County Attorney's Office. Curtis Shiramizu was introduced as the Legal Consultant to the Commission to help formulate the language for the Findings and Purpose and Ballot questions for the Charter proposals. Ms. Suzawa stated that she has a problem with long questions and asked if the proposed wording was the final version. CRC 2011-04 Initiative and Referendum §22.03 Proposed Ballot Question: Should the requirements for submission of an Charter Review Commission Open Session May 21, 2012 Page 6 SUBJECT DISCUSSION ACTION initiative or referendum petition be amended to clarify that such petitions must be signed by registered voters comprising a certain percentage of voters registered in the last general election? Revised Ballot Question: Should the requirements for an initiative or referendum petition be amended to clarify that such petitions must be signed by registered voters registered in the last general election? CRC 2011-05 Charter Amendments §24.01 Proposed Ballot Question: Should the requirements for initiating amendments to the Kauai County Charter be amended to clarify that amendments may be initiated by petition containing valid signatures of registered voters comprising a certain percentage of voters registered in the last general election? Revised Ballot Question: May amendments to the Kaua'i County Charter be initiated by petition signed by registered voters? CRC 2011-11 County Boards and Commissions Member Terms §23.02 H Proposed Ballot Questions: Should a County board or commission member whose term is ending be allowed to serve on a different County board or commission without being required to wait one year? Ballot question approved as submitted. CRC 2012-04 Powers, Duties and Functions of the Office of Prosecuting Attorney§9A.03 Findings and Purpose: The Commission finds that the current provisions of Article IXA of the Kauai County Charter relating to the powers, duties and functions of the Prosecuting Attorney does not clearly and accurately reflect Charter Review Commission Open Session May 21, 2012 Page 7 SUBJECT DISCUSSION ACTION the operations of the office of the Prosecuting Attorney, which not only encompass representation of the State and County in criminal prosecutions but also an enduring commitment to the community to educate citizens on crime prevention strategies as well as actively advocate for victims' rights. The purpose of this amendment is to amend Article IXA of the Charter so that it clearly and accurately reflects the well-established powers, duties and functions of the Prosecuting Attorney. Revised Findings and Purpose: The Commission finds that the current provisions of Article IXA of the Kauai County Charter relating to the powers, duties and functions of the Prosecuting Attorney does not clearly and accurately reflect the operations of the office of the Prosecuting Attorney. The purpose of this amendment is to amend Article IXA of the Charter so that it clearly and accurately reflects the well-established practices of the Prosecuting Attorney. Ballot Question: Should the Office of the Prosecuting Attorney be empowered to 1) Develop and provide crime awareness and prevention programs for and to the community, 2) research, evaluate and make recommendations regarding crime, crime prevention and the criminal justice system, and 3) subject to applicable law, receive and expend funds for these purposes? Ballot question approved as submitted. Mr. TenBruggencate moved to recess the meeting at 6:05 p.m. and reconvene on Wednesday, May 23 at 4:30 pm. Mr. Nishida seconded the motion. Motion carried 5:0 Meeting Called Chair Stack called the meeting back to order at Back to Order 4:37 p.m. with 4 members present (Vice-Chair Suzawa, Mr. TenBruggencate, Mr. Nishida and Chair Stack Charter Review Commission Open Session May 21, 2012 Page 8 SUBJECT DISCUSSION ACTION CRC 2011-08 Mayor Findings and Purpose. The Commission finds that Section 7.03 of Article VII of the Kauai County Charter is severely outdated. The purpose of this amendment is to update this section by confirming that the Mayor's compensation shall be established by the salary commission in accordance with Article XXIX of the Charter. It was suggested that severely could be eliminated in the Findings and Purpose but no actual change was made. Proposed Ballot Question: Should section 7.03 of Article VII of the Kaua'i County Charter be amended to state that the Mayor's compensation shall be established by the Salary Commission in accordance with Article XXIX of the Charter? Revised Ballot Question: Should the Mayor's salary be established by the Salary Commission? CRC 2011-08 General Provisions— §23.01 D and Salary Commission Article XXIX Mr. Shiramizu said the proposed amendment for §29.01 needs to be combined with the amendment for §23.01 D General Provisions which defines Officers in order to cover the Prosecuting Attorney. Proposed Ballot Question: Should the Kaua'i County Prosecuting Attorney be included as an officer of the county,and should appointed administrative heads of any county department or agency and deputies appointed by such administrative heads who are not part of the Civil Service System also be included as officers of the county? Charter Review Commission Open Session May 21, 2012 Page 9 SUBJECT DISCUSSION ACTION Revised Ballot Question: Should the term officer as defined in the Charter be clarified to include the Prosecuting Attorney,appointed administrative heads of any county department or agency, and their deputies who are not part of the civil service system and should members of any county board or commission be excluded as officers? CRC 2011-08 Salary Commission §29.01 Proposed Ballot Question: Should the Kaua'i County Charter be amended to clarify that the Salary Commission establishes maximum salaries, allow for elected officers to accept salaries lower than the maximum established by the salary Commission and eliminate any waiting period before any salary changes become effective. Revised Ballot Question: Should the Salary Commission establish maximum salaries for officers which shall include the Prosecuting Attorney and all deputies,allow for elected officers to accept salaries lower than the maximum, and eliminate any waiting period before salary changes become effective. CRC 2011-04 Initiative and Referendum §22.03 2nd Revision to Ballot Question: Should an initiative or referendum petition be signed by registered voters? CRC 2011-05 Charter Amendments §24.01 2nd Revision to Ballot Question: Should amendments to the Charter initiated by petition be signed by registered voters? Mr. TenBruggencate moved to approve the language for the ballot questions as agreed upon. Ms. Suzawa seconded the motion. Motion carried 4:0 CRC 2011-07 Election of County Officers §1.03 Pro osed Ballot Question: Should a candidate for County Council be required Charter Review Commission Open Session May 21, 2012 Page 10 SUBJECT DISCUSSION ACTION to run in the general election even though the candidate received at least thirty percent of the votes cast in the primary election? Mr. TenBruggencate moved to approve the language for the ballot question for CR 2011-07. Ms. Suzawa seconded the motion. Motion carried 4:0 Mr. TenBruggencate moved to defer CRC 2012- 05, CRC 2012-06 and CRC 2012-07 to the June meeting. Mr. Nishida seconded the motion. Motion carried 4:0 Adjournment Chair Stack adjourned the meeting at 6:35 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.