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HomeMy WebLinkAbout2012_0402_Minutes Open_SpecialMtg_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION—SPECIAL MEETING Approved as circulated 4/23/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I April 2, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:02 pm End of Meeting: 5:33 pm Present Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: Mary Lou Barela; Joel Guy; Ed Justus; James Nishida; Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis, Administrator Paula Morikami, Administrative Aide Teresa Tamura Public Testifiers: Alice Parker; Glenn Mickens; Rob Abreu; Charles Iona; Elli Ward; Jake Delaplane; Shaylene Iseri-Carvalho; Linda Kaauwai-Iwamoto; Ken Taylor; Darryl Perry; Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:02 m with all Commissioners present Business CRC 2012-02 Public input on whether clarification is required to the Kaua'i County Charter as to the Mayor's authority over commission-appointed department heads. Alice Parker said it was clear that the authority to appoint someone should also be the authority to handle any aspects of that person's position. Therefore, the Police Commission would have the authority over the disposition of the Police Chief. Glenn Mickens stated that the Police (sic) Commission had been requested by an undisclosed party to consider the clarity of the Mayor's power. The Commission should inform the public of the identity of the requesting parry so the intent of that request could be evaluated as to whether it was to seek clarification or if there was an underlying purpose to seek change. The Charter limits the Mayor's power to hire and terminate(the department head)where Commissions have been established. The disciplinary power of the Mayor would be limited to those (department heads) he appoints. The framers of the Charter obviously intended to remove certain functions from direct Mayoral control and political manipulation. Mr.Mickens' opinion was that the Charter was adequate as it now stood. Mr. TenBruggencate said because this was a controversial subject that involved an interpretation of the Charter,he had suggested to the Commission that they ask the public for input on whether clarification was required. No one asked Mr.TenBruggencate to bring this issue forward. Rob Abreu felt the Mayor had become a dictator(in the situation with the Chief of Police)and this County was not a dictated society. Mr. Abreu understood Section 7.05 A of the Charter had been given as the legal opinion by the County Attorney to the County Charter Review Commission Open Session April 2, 2012 Page 2 SUBJECT DISCUSSION ACTION Council. Under item A it states except as otherwise provided, exercise direct(emphasis by the testifier)supervision over all departments and coordinate all administrative activities and see that they are honestly, efficiently and lawfully conducted. How can the Mayor say he has direct supervision over the Police Chief unless the County Attorney has four or five definitions for"direct"? Mr.Abreu also stated there was a problem with an independent Police Department where all the complaints go through the Mayor's Office or the Boards and Commissions' Office. How do the citizens know that every complaint gets to the Police Commission when it goes through the Administration appointed Boards and Commissions' Office? Someone may be censoring the information that is going out from the Boards or Commissions if they do not have the full authority to look at these things directly. The Mayor is an ex officio member of the Police Commission. The Mayor should have called the Chair who,in turn, should have called a special meeting for the next day for the Mayor to speak to all 7 members of the Commission and let that body make the decision. The Mayor would have been absolved of any kind of question if he did that but he chose to take the power on himself. Another area to be addressed is the County Attorney having the power over everything; his employment is at the will of the Mayor so he will not go against his em to er. The Charters ells it out clearly that the Mayor does not have direct supervision over the Police Department. Charles Iona wanted to clarify that he was testifying as an individual commissioner and not on behalf of the Police Commission. Section 7.05 A has four words: except as otherwise provided. If those four words were not present or part of the section, then what the administration had been contending all along would be in fact their right to do and that would be to exercise direct supervision. Those four words preempt section 7.05 "Powers, Duties and Functions" and to Mr. Iona it meant that unless there was something else that was addressed, the rest of the section continues. Section 11.05 E states:performs such other duties as may be required by law or as may be assigned by the commission (emphasis by the testifier). Also noted is a signed employment agreement between the Kauai Police Commission and Darryl D. Perry signed on the 17th day of September 2010 and executed on October 1, 2010, which is considered the commencement date. Attached on the second page of"Exhibit A", line 2, reads: reports to the Commission (emphasis by the testifier)on administrative matters. Reports to the Commission (emphasis by the testifier) on legislation and/or policies and makes recommendations for action. On line 7 and 10 of Exhibit A, it specifically mentions that the Police Chief shall communicate with the Mayor and County Council on budget items and matters which involve safety and or health. Mr. Nishida asked if Mr. Iona thought there should be any changes to the Charter or was it clear as written. Mr. Iona felt the Charter was clear but he had been questioned by Councilwoman Yukimura when he appeared before the County Council to request special counsel and funding as pertains to a declaratory ruling. On the 29th of March, the Council voted unanimously to grant that special funding for special counsel. The question was raised when the Commission exercised its power to reinstate the Police Chief on a Wednesday only to find out he was not allowed back to work and the Commission's powers were circumvented at that time. That became the reason for asking for the declaratory ruling. The language of removal clearly states Charter Review Commission Open Session April 2, 2012 Page 3 SUBJECT DISCUSSION ACTION that the Police Commission has the powers to appoint and remove. It does not say terminate. Removal can be for reasons of suspension or removal of powers. The contention has been that, with the exception of the 7 day suspension that the Police Chief suffered while being placed on administrative leave with pay, his powers weren't removed but the administration felt otherwise and that is the reason he could not go back to work. The language of the appointing authority is left up to the Police Commission and Mr. Iona felt the language was self-explanatory. We, along with the public, believe the powers lie with the Police Commission; the Administration feels otherwise and somehow those powers got shifted to the County Attorney. The Charter Review Commission needs to decide if it can tighten the language to bring everything in to some type of conformance. Every avenue the Police Commission took within their powers has been circumvented. Mr. Iona said he did not want to go with a declaratory ruling but thought it was the only way to settle the question of authority because the County Attorney made it clear they have the powers and the Commission does not. The Police Commission is entrusted to give the Police Chief a yearly evaluation but if the Commission is not involved between point A and point B, how can the Commission evaluate that person. If the Mayor decides to continue to discipline the Police Chief there will be a point in time when he wants to remove the Police Chief and he has to come before the body of the Commission. If the Commission is not involved in that process and elects not to remove the Police Chief, everything is back to square one. Mr. TenBruggencate noted the time constraints the Charter Review Commission was operating under to get questions to the ballot for this year and asked if there was any indication on how soon the declaratory ruling would be sought. Mr. Iona said it was up to Attorney Winn who has to work up a list of eligible attorneys that the Commission can select from but he did not know how long the process would take. Mr. Iona expressed that there probably would not be time to place language on the ballot this year and suggested the Charter Review Commission allow the Police Commission to get a declaratory ruling first. Mr. Justus asked if the declaratory ruling was just for the Mayor's powers over the Police Chief or was that for the Mayor's powers in general as an appointing authority. Mr. Iona said the motion he had made at the Police Commission meeting pertained to the powers to supervise and/or discipline the Police Chief. Chair Stack asked if at any time they considered having a different Commission such as Ethics or Charter petition for the same action. Mr. Iona replied no. Eli Ward said that language is such an elusive thing, written or oral, and not everyone will come to the same conclusion on the interpretations. Presenting a different slant, Ms. Ward reminded the Commission that there was a different victim in this situation who could be neglected and buried under all the headlines about the Chief, the Mayor, etc. Ms. Ward supports the hiring and firing of the Police Chief by an appointed, non-political body and the Police Commission should have that function Charter Review Commission Open Session April 2, 2012 Page 4 SUBJECT DISCUSSION ACTION and remain apolitical and professional. When a citizen chooses to seek help from the Mayor, the Mayor has the obligation by his office, as the highest-ranking elected official, to protect that citizen to the best of his ability and judgment. Jake Delaplane, First Deputy, Prosecuting Attorney. The question raised has been centered on the idea of whether the Charter is clear with regard to the power of the Mayor. Mr. Delaplane personally thought the Charter was completely clear on this issue and did not require additional review by the Charter Review Commission or any addition to the language by the voters. It is clear as to the powers of the Mayor and clear that he overstepped that power here. Under the Police Commission Rules the Commission has the sole authority to appoint and remove the Police Chief. Was the Police Chief removed? Absolutely. It is clear the Mayor's Office overstepped their bounds but the gray area that was created was created by the County Attorney's Office. HRS §76-1, Civil Service Provisions, is very instructive as to why Boards and Commissions are in place. The purpose of that Chapter is to establish in the State and each of the counties, a system of personnel administration based on merit principles and scientific methods governing classifications of positions and the employment, conduct, movement and separation of public officers and employees. It is also the purpose of this Chapter to build a service career in government which will attract, select, and retain the best of our citizens on the merit principle, free from coercive political influences with incentives in the form of genuine opportunities for promotions in the service which will eliminate unnecessary and inefficient employees and will provide technically competent and loyal personnel to render impartial service to the public at all times according to the dictates of ethics and morality. In order to achieve these purposes, it is the declared policy of the State that the personnel system hereby establishes, applies and administers in accordance with the following merit principles, and goes on to list those merit principles. The key term is that commission and every other commission is designed to be free from coercive political influences. That is why the Mayor is an ex officio member of the Police Commission, as well as all the other Boards and Commissions, but doesn't have a vote which is important. That separation and the need to keep it away from coercive political influences are absolutely paramount with regard to public safety and the Police Commission. With law enforcement, freedom is at stake,public safety is at stake, lives are at stake so we can never compromise public safety and allow this coercive political influence to come in and stifle a process that is recognized across the State; that process being the Police Commission having power and authority to appoint and remove the Chief. If the Mayor can remove the Police Chief at any time then conceivably the Mayor could stifle any investigation that the Police Department is doing. Mr. Delaplane did not think that was the framework anyone envisioned and did not elect Bernard Carvalho, Jr., to be our Chief of Police. We elected him to be our Mayor and he has overstepped his bounds in that regard. Mr. TenBruggencate asked if the Office of the Prosecuting Attorney had standing and might participate in the declaratory ruling process as a friend of the court. Mr. Delaplane and Ms. Iseri-Carvalho said maybe as an amicus curiae or friend of the court but did not think OPA had standing as a party to that case. In looking at whether there needs to be clarity added or to include a Charter Review Commission Open Session April 2, 2012 Page 5 SUBJECT DISCUSSION ACTION policy statement that may be a little more broad or whether the actual language of the charter needs to be changed is a process that should not wait on the declaratory ruling to come down from the court because those processes can continue in a parallel path and can be worked on at the same time. The court is only interpreting what it believes the charter meant when it was drafted. Mr. TenBruggencate asked if it was Mr. Delaplane's testimony that the current language of the charter was adequate and was clear. Mr. Delaplane said in his opinion he believed so with regard to this case; the language was clear but muddled up by bad interpretation. Mr. Stack asked Mr. Delaplane if he believed the Mayor exceeded his authority. Mr. Delaplane responded yes. Mr. Stack said the Mayor was also quoted as having said he sought and received counsel and asked where Mr. Delaplane supposed that counsel came from. Mr. Delaplane said the chief legal advisor to the County,under the charter, is the County Attorney's Office and he would assume that would be the case. Shaylene Iseri-Carvalho, Prosecuting Attorney for the County of Kauai, stated that she agreed with everything Mr. Delaplane said regarding the fairness and equity of ensuring that employees, especially the Chief of Police, be free from those influences. Most definitely the clear difference is that the Chief of Police does have the ability to restrict a person's liberty. That is different from any other commission and clearly has to be a paramount factor in considering the ability of the Chief to be independent from any type of influence. There are various overriding views about commissions in general. That has to be taken one step further to look at the powers of the Police Chief because if that power is abused by another person, clearly that was not the intent of the legislative body. There were 4 (ranking)people out at one period of time and it seriously impacted the operations of not only the police department but clearly the Office of the Prosecuting Attorney which is closely related with the police department. There are 3 different branches: the administrative,the legislative branch, and the judicial branch. There is a reason for that as it goes back to the founding fathers as to why they wanted a separation of powers and why we need to have those checks and balances in place. The whole operation, not only the Police Department, has been upset and that was never envisioned by anyone who drafted any of these rules. Ms. Iseri-Carvalho believed the charter was clear. Apparently it has to be made clearer because there is one person who has decided to have a different opinion than 99.9% of the attorneys and we have to recognize that authority and the difference of power between the legislative process and the judicial process. The judiciary will only interpret the law; it does not make a law and it will not recreate a law to make it clearer or not—it will just interpret. Therefore it is necessary to participate in this dual route of moving forward with the legislative process as well as obtaining a declarato review in the judicial process because there is no time limit on the judiciary in bringing forward a decision. Linda Kaauwai-Iwamoto looked at the Charter from 1972 to 1983 where it listed the duties of the Police Department in Article Charter Review Commission Open Session April 2, 2012 Page 6 SUBJECT DISCUSSION ACTION XI and said the Chief of Police shall be appointed by the Police Commission and the current Charter says the same. It is so clear that the Chief of Police, the Chief of the Fire Department as well as the other commissions are responsible to their commission and not to the Mayor. The Mayor definitely overstepped his bounds by giving his own opinion and in doing what he did. In listening to the previous testifiers Ms. Kaauwai-Iwamoto also felt the Mayor was poorly advised by the County. The Police Chief did what was right and the Mayor was wrong. Alice Parker backed Ms. Iseri-Carvalho's point about perpetrators and cases being handled in which time is of the essence. Things have to be processed quickly and efficiently so the Police Department has to be run efficiently and not be thrown into chaos. Ken Taylor said all of this went back to an opinion that was written but the public has not been able to see. When opinions are written as to laws and regulations, those opinions should be made available to the public in order for them to be able to speak more intelligently. This case will have to go to court and the Police Commission should hire outside counsel and the Charter Review Commission should as well. Mr. Taylor stated he had a lot of respect for Attorney Winn but she was from the County Attorney's Office and there was a conflict of interest there. Before the Charter Commission makes any final decisions they need to get outside counsel and an opinion about what is going on. The Commission should also demand that the original opinion that started this whole mess be made public. Mr. Taylor said it was his understanding that there were no facts of law in that opinion and if that was the case there should be something happening up and beyond this. Section 7.05 A is very clear and states "except as otherwise provided". Article XI provides for the Police Commission to deal with the hiring and firing of the Police Chief. If you are going to hire someone or fire someone, in between there is the consideration of the job they are doing including discipline. The Mayor should have approached the Chair of the Police Commission to set a public meeting and moved forward. The Charter is quite clear as to what should and should not happen. If the Commission wants to change the Charter, they should make Article XI stronger and detail that the discipline activities should be from the hiring and firing authority. Darryl Perry, Chief of Police, said when he came to Kaua'i his main objective was to put the department in the right direction and to restore the confidence and trust in the community. In his 30 years of experience with the Honolulu Police Department, the information and directions they received came directly from the Police Commission and at no time did the Mayor's Office interfere with the operations of the Police Department. Chief Perry said he was probably the first Chief of Police in the history of the State of Hawai'i to be suspended by the Mayor's Office, which includes Mr. Heu and Mr. Al Castillo. Chief Perry stated he had noting against the Mayor and that he had a good heart but it was the people who advised him who made a grave mistake and gravely hurt the community. Chief Perry wanted the community to know that he was there to serve and would remain so until this issue was resolved. Chief Perry noted that in his 30 years of service he had never been disciplined or received a written reprimand and all of his evaluations were excellent. This issue should not be subjected to interpretation by one Charter Review Commission Open Session April 2, 2012 Page 7 SUBJECT DISCUSSION ACTION individual who advises the Mayor and that was where the problem lay. The Chief briefly explained the suspension to the Commission stating that the information that came out from the Mayor's Office was erroneous. Mr. Justus asked if the language had been written stronger and more clearly spelled out the powers and authorities of the Police Commission including disciplinary actions, would this situation perhaps not have occurred. Chief Perry felt the language was clear and the professionals he has spoken to have no issues with the Charter currently in place. The interpretation was the problem and another County Attorney might have interpreted this differently. Mr. Nishida said the Mayor exercises direct supervision over all departments, coordinates all administrative activities and sees that they are honestly, efficiently and lawfully conducted. Mr. Nishida said the complaint from the department was clearly under the Chief's responsibility and depending on how the complaint came up, it may not even be in the Commission's realm of responsibility. He said the person he votes for should have some responsibility over men with guns, people with police power, but not to push their weight around. The Chief is a highly functioning person who has to work closely with the Commission to develop a rapport and a working relationship. Would a declaratory ruling clarify the aspect of the personnel action against the Chief? Mr. Nishida did not think it would address the issues that caused these events to happen but asked the Chief if he would expect the declaratory ruling to be specific to his disciplinary action. Chief Perry said it could because it would delineate the powers of authority and that any issue that would concern the Chief should be brought before the Police Commission. The Chief said he, too, would want a Mayor who oversees everything to make sure it functions properly. The Chief explained that while he was at HPD he received extensive training on how to how to handle situations like the complaint that was filed and move forward with Human Resources to address the issues on a timely matter. Some of the situations they have faced on Kaua'i are very difficult because those support systems are not in place. Based on the Chief's training and experience he said the Mayor overstepped those bounds. Charles Iona said he believed that Chief Perry was the only Commission appointed department head with a standing employment contract. The language in that employment contract, which was drafted by the County Attorney's Office, has language taken from the Charter and inserted into the contract. That is an airtight defense pertaining to the powers over the Chief. If the Charter Commission considers putting language in the Charter, the Chief's open-ended contract has to be considered. Ms. Suzawa asked if the Chief's contract was public record. Mr. Iona said they could ask for a copy of the contract. Chair Stack said the task was to stay on point and talk about the language of the Charter and to not personalize this in any way or victimize anyone. Chair Stack said with Mr. Iona's background in law enforcement, how could the Charter Commission Charter Review Commission Open Session April 2, 2012 Page 8 SUBJECT DISCUSSION ACTION assume he was not prejudiced in the Chief's favor because of their like occupational backgrounds and asked if this was personal or about the Charter. Mr. Iona stated it was about the Charter. Ms. Suzawa asked if including an employment agreement as a Charter amendment might help clarify. Mr. Iona thought it might possibly. Mr. Justus said the Chief's contract talks about what the authority is of the Police Commission over the Police Chief. Does the contract spell out the disciplinary ability of the Police Commission to the Chief and is it different in the contract than the Charter? Mr. Iona said it was the same in the Charter. Ken Taylor said there were a number of other positions in the County that the Mayor does not appoint and if wording is the problem, there may be some problems in others too. Mr. Taylor felt the Mayor had also overstepped his bounds with the position of the Planning Director, so if there needs to be changes to the Charter, the Commission may want to look at all positions appointed by others to make sure the language is clear as to where the discipline takes place. Darryl Perry spoke further on his suspension which was outside the agenda item and the authority of the Charter Commission. Ms. Suzawa asked if a person appointed by a Commission felt they were not in a safe environment would the Charter enable the Mayor, as Chief Executor of this County, to take the action that would make that employee safe even if there was a commission involved. Is there an interpretation in the Charter to cover that. Attorney Winn said there were more things than just the Charter to be considered. The County of Kaua'i has a Harassment Policy and Procedures but without a specific factual situation it is difficult to answer Ms. Suzawa's question. Shaylene Iseri-Carvalho wanted to focus on due process which is based on the 5t amendment of the Constitution and made applicable to the States by the 14th amendment. Ms. Iseri-Carvalho further explained due process to the Commission. Mr. Guy said the question for the Commission to consider was did they need to strengthen the Charter to either allow the power to go to the Commission or to the Mayor. He feared there would be an expectation that the Charter had to be changed every time someone questioned some aspect of it. Ms. Iseri-Carvalho expressed concern of just going through the judiciary process which does not have a time limitation to give their decision. The impact of the decision made by the Mayor has severe ramifications on not only what happens in the County of Kaua'i but all of the other counties. The professionals Ms. Iseri-Carvalho spoke with from the other counties all agreed that our Charter was solid but it could be clarified; it was just the interpretation that was provided. Charter Review Commission Open Session April 2, 2012 Page 9 SUBJECT DISCUSSION ACTION Mr. Justus asked if in amending the Charter to make things clearer was there a way to include due process. Ms. Iseri-Carvalho thought Honolulu had the appointing authority responsible for the hiring, disciplining, and firing of the Chief which is explicitly clear. Before the interpretation was given here, we always thought Kaua'i's Charter was just as clear. Mr. Nishida said the disciplining part was not clearly stated in the Charter but what overrides that is the due process that is part of the Constitution. Mr. Nishida said most people feel the Charter is fine, es eciall taking into consideration the due process. Adjournment Chair Stack adjourned the special meeting at 5.33 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair O Approved as is. ( ) Approved with amendments. See minutes of meeting.