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HomeMy WebLinkAbout2012_0423_CharterAgendaPacket Patrick Stack Members: Chair Mary Lou Barela Joel Guy Ed Justus Carol Suzawa James Nishida,Jr. Vice Chair Jan TenBrugoencate COUNTY OF KAUAI CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday, April-2 3, 2012 4:00 P.M. or shortly thereafter Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, LThue, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of March 19, 2012 Regular Open Session Minutes of Special Meeting April 2, 2012 (minutes currently unavailable but anticipated at meeting) BUSINESS CRC 2012-02 Deliberation and decision-making on a possible amendment to Kaua'i County Charter related to Article V11, Section 7.05 as to the Mayor's authority over commission-appointed department heads. (ongoing) CRC 2011-17 Proposed amendment from Commissioner Justus revising Article 111, County Council, Sections 3.02 Composition, Section 3.03 Terms, and Section 33.04 Qualifications relating to Partial Districting. a. Scope and Authority establishing the Special Committee to consider possible Z__ amendments to the Charter related to establishing County Districting and possible changes in Tenn Limits for District Seats. K Overview of the findings and recommendations of the Special Committee on County Districting to the Charter Review Commission, pursuant to HRS §92-2.5 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 CRC 2012-04 Memorandum dated 11"'0/11 from the Charter Review Commission to the Office of the Prosecuting Attorney requesting proposed charter language as relates to the Office of the Prosecuting Attorney, including Findings and Purpose An Equal Opportunity Elnployer a. Memorandum dated 4/10112 from the Prosecuting Attorney's Office proposing charter amendments to Articles IY—A and Article XIX relating to the Office of the Prosecuting Attorney CRC 2012-05 Memorandum dated 4/10/12 from the Prosecuting Attorney's Office proposing charter amendments to Article VIII relating to the Office of the County Attorney CRC 2012-06 Memorandum dated 4"1'10/12 from the Prosecuting Attorney's Office proposing charter amendments to Article XI relating to the Police Department EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §x§'92-4 and 92-5 (a) (4). 92-9 (a)(I-4) (b), the purpose of this executive session is to receive and approve Executive Session minutes and to consult with the Commission's legal counsel on issues pertaining to the Commission's and the County's powers, duties, privileges, immunities, and/or liabilities as they may relate to this item, deliberate and take such action as appropriate. ES-2: Executive Session Minutes of March 19, 2012 RETURN TO OPEN SESSION Ratify Board of Ethics actions taken in Executive Session for items: ES-2 ANNOUNCEMENTS Next Meeting: Monday, May 21, 2012 at 4:00 pm in the Mo'ikeha Building, Meeting Room 2A/B ADJOURNMENT EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92-7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92-4 and shall be limited to those items described in HRS §92.5(a). Discussions held in Executive Session are closed to the public. Cc: Deputy County Attorney Jennifer Winn PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior to the meeting indicating: 1. Your name and if applicable, your position/title and organization you are representing; 2. The agenda item that you are providing comments on; and 3. Whether you will be testifying in person or submitting written comments only; and Charter Review Commission—April 23, 2012 1 4. If you are unable to submit your testimony at least 24 hours prior to the meeting, please provide 10 copies of your written testimony at the meeting clearly indicating the name of the testifier; and 5. If testimony is based on a proposed Charter amendment, list the applicable Charter provision. While every effort will be made to copy, organize, and collate all testimony received, materials received on the day of the meeting or improperly identified may be distributed to the members after the meeting is concluded. The Charter Commission rules limit the length of time allocated to persons wishing to present verbal testimony to five(5)minutes, A speaker's time may be limited to three (3) minutes if, in the discretion of the chairperson or presiding member, such limitation is necessary to accommodate all persons desiring to address the Commission at the meeting. Send written testimony to: Charter Review Commission Attn: Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 LThu'e, HI 96766 E-mail:bdavt5,�,,kaqq�i.goxj, Phone: (808)241-4919 Fax: (808) 241-5127 SPECIAL ASSISTANCE If you need an alternate format or an auxiliary aid to participate, please contact the Boards and Commissions Support Clerk at(808) 241-4919 at least five (5) working days prior to the meeting. Charter Review Commission—April 23, 2012 3 111 e DRIF�T�Tj@ Bl A� � � e� COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I March 19, 2012 T " d of Meeting: 6:03 P,m� Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 4:01 p.m. I En Present Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: 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 Audience Members: Solette Perry; Charles Iona; John Isobe; Janine Rapozo Excused Member: Mary Lou Barela Absent SUBJECT DISCUSSION ACTION ---------- ------ Administrative Assistant Eddie Topenio administered the Oath of Office to Carol Suzawa and James Nishida prior to the meeting being called to order. Call To Order Chair Stack called the meeting to order at 4:01 --------- -P.M. with 6 Commissioners present Approval of Regular Open Session Minutes of January 23, 2012 Mr. TenBruggencate moved to approve the Minutes minutes as circulated. Ms. Suzawa seconded,the motion. Motion carried 6:0 Executive Ms. Suzawa moved to go into Executive Session Session at 4:02 p.m. Mr. TenBruggencate seconded the motion. Motion carried 6:0 Chair Stack read the flawai'i Revised Statutes as described on the agenda that would take the Commission into Executive Session for item F"S- I CRC 2012-02 Business The meeting resumed in Open Session at 4:29 CRC 2012-02 Deliberation and decision-making on possible amendments to Charter Review Commission Open Session March 19, 2012 page 2 SUBJECT DISCUSSION ------- ACTION--------­ ­ ­--­ --- Kaua'i C d Article XI., Section 11.04 a. Email dated 2/27/12 from Councilmember Mel Rqpozo providing, testimony to the Charter Review Commission in support of leaving the Charter as is Mr. TenBruggencate made a motion to ask the Commission Staff to issue a press release announcing the Charter Review Commission would be taking public testimony at the next meeting on the subject whether there should be changes to the Charter with respect to the suspension and disciplinary action of certain Department Heads. Mr. Justus seconded the Attorney Winn reminded the Commission to take public testimony before motion. voting on the motion. Solette Perry: Ms. Perry introduced herself as the Regional Human Resources Director for Hawaii Health Systems Corporation and the wife of the Chief of Police Daryl Perry. When Ms. Perry was with DHRD (Department of Human Resources Development) they looked at H.R.S. Chapter 76. Ms. Perry proposed that the Commission look at Chapter 76 which gives the definition of an 'appointing authority' and the Kaua'i Police Commission's authority to do the appointment of the Chief of Police. It embeds those duties and responsibilities as the appointing authority. Chapter 76 includes specific statutory language about the in-between; the Police Commission can hire, the Police Commission can fire, the Police Commission also does the evaluation of the Chief of Police position. The in-between is what is confusing everyone so with all that authority who has the delegated power to do the disciplinary action and that is clearly ------- delineated ire_Chapter 76. That , o __ __j__aM Charter Review Commission Open Session March 19, 2012 Page: 3 SUBJECT DISCUSSION ACTION each and every Position within the Stag or the County and delineates that power to control this position. Ms. Perry painted out that in her position with the State her appointing authority is the only person who can suspend her. Since language is an important piece of her work, Ms. Perry asked the Charter Review Commission to consider reviewing the language. Mr. Justus asked if the language in H.R.S. §76 was incorporated into the Charter would it have clarified the whole situation. Ms. Perry responded yes. It would have to do with the definitions so it was clear as to what the duties and responsibilities were of that appointing authority because that was where the ambiguity laid. With legislative provisions or collective bargaining agreements, they did not imbed any language into them so the language needs to be there to clearly clarify and delineate what the intent or authorities of that provision is. Mr. TenBruggencate said by suggesting this language, Ms. Perry was agreeing with the County Attorney's position that the language was not sufficiently clear. Ms. perry agreed that the language was not now clear but would not agree with the County Attorney's interpretation as to who was the appointing authority for the Chief of Police. Mr. TenBruggencate said the Police Commission was clearly the appointing authority but they were talking about the authority for suspension. Mr. Nishida asked if they needed a copy of H.R.S. §76-11. Attorney Winn said Clio ter 76 referred to civil service law. Charter Review Commission Open Session March 19, 2012 Page 4 SUBJECT DISCUSSION ACTION Mr. Nishida asked if the H.R.S. covered boards and commissions or was that authority given to the counties to do. Ms. Perry did not know but under Chapter 76 any type of opinions or definitions in the H.R.S. would need to be checked with the State Attorney General's Office. Attorney Winn stated that it would not apply to any of the department heads because they were not civil service. Ms. Perry said she respectfully disagreed and again said they should ask the Attorney General's Office because Chapter 76 pertains to public employees and is covered in the prearnble for all the positions and jurisdictions within the State of Hawaii. It does include under §76-77 the exemption to the civil service which is covered by the counties. All of the positions, even though they are exempt, are covered under Chapter 76 because it is a public employment clause. Charles Iona: Mr. Iona introduced himself as presently sitting on the Police Commission and that when he took the oath to uphold the Charter and went through the training, there was not one training offered to the Commission as to the intent of the language when the Charter was drafted and why it was written the way it was written. As a retired police officer and the former head of SHOPO for Maui, they were always under the impression that the Police Commissions were the buffer between administration and the police department because it was very worrisome about the politics being played at that time and they had to work to make sure the department was insulated from the politics. Mr. Iona said §11.04 states the Police Commission is the a ointin authori e Police Commission hires the Chief of Police and Charter Review Commission Open Session. March 19, 2012 Page SLJBJECT DISCUSSION ACTION if they have to remove that person there is a due process before the Police Chief can be removed. If we are not involved in the disciplinary action, the Commission can say that nothing will happen to the Chief because the removal has to go through the Corrnission. Usually when there are disciplinary actions there is a progression it follows to termination. The Commission performs an evaluation process and if we are not part of any suspensions how can the Commission give a true evaluation of the person they are entrusted to evaluate from year to year. To help the Charter Review Commission decide can the language, Mr. Iona said the Police Chief is the only appointed position that has an employment contract with the Police Commission. Mr. Iona begged the Charter Review Commission to look at that employment contract because whatever language they put in the Charter that affects the Police Chief will also alter that contract. The Police Chief has an open-ended contract which means when he resigms, the contract ends. If he gets terminated for just cause that contract ends. He retires that contract ends. Should he, hopefully, live to 200 years old that contract will stay tier the next 200 years, nothing will ever happen to that contract which was dratted by the County Attorney's Office. Mr. Iona again urged the Charter Commission to ask to see that contract which has language that pertains to when the Police Chief answers to the Mayor and when he answers to the Commission. One of the key points is that the Police Chief answers to the Commission on all administrative matters. There is language in the Charter and the Police Rules that also govern that the Police Commissioners cannot dabble in the day-to-day operations but can make recommendations which the Chief does not have to follow. Motion to publish a press release soliciting public testimony carried 6.0 Mr. Justus moved to receive the communication from Councihnember Rapozo. Mr. TenBru x 7encate seconded the motion. Motion Charter Review Commission Open Session March 19, 2012 Page 6 SUBJECT DISCUSSION ACTION carried 6:0 Mr. Guy moved to receive the written testimony of Solette Perry. Mr. Justus seconded the motion. Motion carried 6.0 CRC 201„1-()1 Proposed amendment creating a new Section 24 04 Kauai Cc�ulty Charter, reiatin to non-substantive corrections and revisions Deferred tc�Februar 2()12 meeting . Discussion and ossible decision-makin , on flow the Commission can best achieve a review of the Charter for recommendations to correct non..- substantive items as they relate to grammar, spelling, and formatting;errors in the Charter and whether to consider bud, geting for an outside editor on xoi gig) d. Memorandum dated 3/1/12 from Ricky Watanabe County Clerk reCardin res onsibilit fir cc�rrectin = non-substantive than yes to the Chat-ter Mr. TenBruggencate moved to receive the communication from the County Clerk. Mr.Justus seconded the motion. Motion carried 6:0 Mr. Guy wanted to know if the wording"and without altering the sense, meaning, or effect of any charter provision," in item 8 was applicable to all of the statements listed and why was it specific to item 8. None of the items can alter the sense, the meaning or the effect of any charter provision. Mr. Guy asked if there was blanket wording;that would cover all of the items. Mr. Justus asked if non-substantive would include the entire concept Mr. Guy was referring;to. believed it would and did not think it would be redundant. Charter Review Commission Open Session March 19, 2012 Page 7 SUBJECT DISCUSSION ACTION Mr. TenBruggencate felt Mr. Guy had hit on a perspicacious paint. That language was repeated in item 10 and was unnecessary in that line. Mr. TenBruggencate moved to remove the words and without altering the sense, meaning, or qt ev of any charter provision in item 8. Mr. TenBru,ggencate said he would leave that statement in item 10. Mr. Justus said his understanding was that item 10 included the word rather and if it was that particular subsection of that amendment, this line was referring to that as the other non-substantive changes. Mr. Justus suggested including the phrase at the beginning of the amendment under section A to read: The county attorney may propose non-substantive corrections and revisions to the charter by ordinance that shall not alter the sense, meaning, or arty q fect of'auiy article. If placed at the beginning, it should cover all sub-sections. Mr. Justus seconded the motion, Motion carried 6:0 Mr. Justus moved that they remove the last sentence in sub-section 10 and in section A add a second sentence after the word ordinance In making such revisions the cc un� y attorney shall not alter the sense, meaning, or effixt oj' and.= article or section, Mr. Guy seconded the motion. Motion.. carried 6:0. Mr. Justus suggested the ballot question should be altered to read that the county clerk should be allowed to propose an ordinance that makes all the changes and minor errors to the Charter that must be approved first by the (.7ountyy Attcarne*y and then by a vote of five(5) or more members of the County Council. Charter Review Commission Open Session March 19, 2012 Page SUBJECT DISCUSSION ACTION Attorney Winn Painted out that section A stated that the county attorney may propose the corrections. The ballot question cannot be different from the body of the amendment and the county clerk was not mentioned in the body of the amendment. Mr. Justus moved to amend section A to read the county clerk instead of the county attorney to be followed by altering section D to read "the ordinance shall be approved 4y the county attar n(ry and adopted by a vote of five(5)or more members of the County Council". Motion failed for lack of The Commission was reminded that the dual use of county attorney/county a second. clerk was originally Placed in the amendment while awaiting response from both offices as to their ability to make non-substantive changes to the charter. Mr. Justus said since neither office seemed willing to take on the task maybe the amendment should be that either office can propose changes be approved by the county attorney before approval by the County Council. Mr. Justus thought it was rejected on the ballot about 10 years ago because it was the county attorney who would propose the language and there seemed to be distrust from the public about the County Attorney's office. Attorney Finn cited from the County Attorney's opinion that he was skeptical of doing non-substantive proposals which do not have any legal effect because of the workload of the office. Also their office advises the County Council and it may appear disingenuous to present an ordinance proposal to the County Council and then advise the Council on the legality of the ordinance. Mr. Justus asked if the County Clerk drafted the language and presented it to the County Attarey's }fce fcr approval wcauld that be less of a Charter Review Commission Open Session March 19, 2012 Page 9 SLJBJEc'r DISCUSSION ACTION Attorney Winn thought so but their office regularly opines on bills and approve contracts before the County Council, which is more in line with their job description than creating the language for the bills and contracts. Chair Stack said it appeared no one wanted to tackle the problem. Mr. Guy said initially they looked at various options which included an outside third party and hiring an editor so the County Attorney and the County Clerk were not their only two options but he knew there were budgetary constraints. Chair Stack added that there were also time constraints. Mr. TenBruggencate moved that this proposed. amendment be removed from the list of amendments being considered for the ballot this year and discuss at the next meeting about talking to the County to get the funding to hire a private attorney to go through the Charter to make the recommended changes for the 2014 election. Mr. Nishida seconded the motion. Mr. Justus thought it was important to include language that would allow the Commission to make those changes because even if they hired someone to present all the correct language if there was not some mechanism to allow those changes to be made, it would defeat the purpose. Chair Stack said it was discussed at prior meetings about contracting a professor of English or grammatical arts which would then be reviewed by the Charter Review Commission upon completion and forwarded to Council for.VPmoval w.__. Charter Review Commission Open Session March 19, :2012 Page 10 SUBJECT DISCUSSION ACTION Mr. Justus asked Mr. 'T'enBruggencate if lie said the Charter Review Commission already had the authority to make non-substantive changes to the Charter. Mr. TenBruggencate referred the question to the county Attorney but thought the Charter Conrnnssion had the authority to make wholesale changes to the Charter and present them to the public. Attorney Wirrn said that was correct in the sense that this Commission was the one who would propose the amendments for the electorate to decide on by presenting a ballot question that encompassed all the changes made to the Charter but the electorate had to know what those changes actually were. Motion to not consider as a ballot item in 2012 carried: 4:2 (nay Justus & Surawa CRC 201 he Kauai Ccurrty Charter relating to establish. ig a Department of Human Resources a. Letter dated 3/7/1.2 from the Human Resources Taskforce to the Charter Review Commission providing a copy of the communication to the Kauai Courrtouncil with an update on centraliinpersonnel functions and services Motion to receive the letter dated 3/7/12. Mr. Nishida seconded the motion. Motion carried 6:0 John Isobe and Janine Rapozo, members of the HR Task Force, were present to answer questions regarding the proposed Charter amendment and the communication that was sent to the County Council. The proposed amendment was initiated by the Cost Control Commission and endorsed by the Civil Service Commission who oversees the Department of Personnel Services. The Mayor has indicated his support of creating a Human Resources Department for the County of Kauai. The Cost Control Commission was informed by the County Auditor's Office that the way the Charter Review Commission Open Session March 19, 2012 Page I I SUBJECT DISCUSSION ACTION Charter was constructed there was a question as to whether or not the Personnel Department could be expanded into a Human Resources Department without a charter amendment. The Cost Control Commission did get an opinion from the County Attorney that the Administration had the authority to expand the functions of the Personnel Department to a full- fledged Human Resources Department because they had related duties. The reason the charter amendment was proposed was to eventually clarity what the new role of the Human Resources or the expanded Personnel Department would eventually become. The task force has been meeting for about nine months and is close to making a recommendation relative to the proposed expansion of Personnel which will be provided to the County Council as part of the budget submittal. The Charter Commission did have questions for the County Council and the Mayor but neither body could adequately respond to those questions because the task force had not yet prepared its recommendation. The task force would like to request that this charter amendment be deferred until the 2014 election in order for the task force to implement these recommendations on July 1, 2012. That would give the County about I 'f2 years to work out the kinks of what the department would be and ensure the amendment that is being proposed would accurately reflect the actual work that is being performed by the Human Resources Department. A Human Resources Department cannot be created without changing the Charter but what can be done is to expand the functions of the Personnel Department to include Human Resources functions. The difference being that the charter amendment would embed these functions so future Mayors could not revert the functions back and a Human Resources Department would be created as part of a chartered department. Once the plan is in place, if the charter amendment failed the Department of Personnel Services would remain as the Department of Personnel Set-vices and future administrations could alter the plan. If the charter amendment were Mass, future administrations would not be able to Charter Review Commission Open Session March 19, 2012 Page 12 SUBJECT DISCUSSION ACTION alter the Human Resources Department without a charter amendment. Chair Stacy asked if there was an economy of scale as related to the change to Human Resources. Would it add more people and would the payroll be higher? Mr. Isobe told the Commission that currently there were staff members in the various departments who were doing personnel work. The proposal was to consolidate those positions within the Department of Personnel Services and expand the functions within Personnel to include areas such as training, EEOC and other functions that currently are not part of the Personnel. Department. The Personnel Department would be expanded from the current 9 people to 18 people but the body count for the County would not increase because they would be coming from existing positions within the various departments and consolidating them into the Personnel Department. The economy of scale would be, in the long run, to have a centralized Human Resources Department that can uniformly support all of the different County agencies. Currently, policies and procedures within the County are not necessarily being implemented uniformly. There are different administrative issues that create legal problems for the County. By centralizing it within a single Department that oversees all personnel within the County, a lot of the issues that currently exist should eventually dissipate and the Human Resources department would be providing a singular point of guidance for all County departments. Mr. Guy asked if the departments showing a high percentage of time doing personnel functions would be the ones pulled into the Human Resources Department. Mr. Isobe said correct. Mr. Guy asked if that would eliminate those spending only 15 to 20% of their time from doing personnel functions and allow them to do more of the job they were supposed to do. Mr. Isobe that was tiie be Charter Review Commission Open Session March 19, 2012 Page: 13 SUBJECT DISCUSSION ACTION Mr. TenBruggencate said the charter amendment as Proposed contains a measure which addresses the issue with regard to the Police Commission and provides language that gives the political arm of the County a way to get into the administrative authority in a department that was previously limited to the Police Commission. Mr. TenBruggencate moved to defer the proposed amendment indefinitely. Mr. Guy seconded the motion. Motion carried 6:0 CRC 2011-17 Proposed amendment from Commissioner Justus revisin Article 111111-,-Counly Council Sections 3.02 Composition, Section 3.013 Tezms and Section 3.(14 ualifieations relatin x to Partial Districtin r. a. Years and Vote tall with Difference for Ballot Questions; Population Breakdown of Each Town according to 2010. Census Data-, Conceptual Layout of Ge( .ra hic Areas b. Email dated 2117112 from Jonathan Jay regarding A District Proposal for AI-lar 7e Vain and Candidate Rcsidenc Re uirement Districts for Kauai Mr. Justus said he received lots of comments from the community, especially the Westside that they wanted to have some type of district representation in the Council. In the past, partial Council districting has been voted down but over the years the numbers between the yes votes and the no votes have shrunk considerably. The Westside community voted against the 3 district seats and 4 at-large because the Westside was included with the Soutlishore and their needs and desires were very different. Mr. Justus said if the island was broken into the 4 districts most people are familiar with, there would still be the at-large Council seats. The language in Mr. Justus' proposal was identical to what other Charter Review Commissions hactplaced on the ballot except for the change to 3 at-lame Charter Review Commission Open Session. March 19, 2012 Page 14 SUBJECT DISCUSSION ACTIC)N seats and 4 district seats. Mr. Justus also suggested that district seats remain a 2 year term which would give the community the ability to refresh that area faster. If the at-large seats are 4 year terms that would justify the type of campaigning someone would have to do to cover the whole island. If the at-large seats and district seats were both for 2 year terms, what would be the justification to run for an at-large seat when they could run for a district seat for the same term. The 4 district seats would always be in the majority versus the 3 at-large seats which would be the minority and forced to listen to the district needs. There has always been a desire for staggered terms in the Council which this districting would create. Mr. Justus also suggested a change to the prior proposed ballot question that read "having a commission that would be a reapportionment commission for every tenth year"to include"district reapportionment"because many people do not know what reapportionment means. Mr. Justus also shared that districting had been on the ballot 4 times before but had not passed. Mr. Guy said districting was very appealing to him and was a good starting point for discussion. The Maui model which Mr. Jay used looks much simpler and asked. Mr. Justus why he did not propose that model. Mr. Justus said he did not propose straight districts because he thought KauaTs, population base might be too small to divide into 7 parts. It seemed the consensus that a half district, half at-large would address the idea of needing districts but also allow everyone to vote for people they felt could represent them as a whole. Mr. Justus said he was not too keen on the Maui model that Mr. Jay presented because although they have districts, everyone across the island can vote for someone in that district. A district should be the consensus of the people who live in the district to elect someone they feel represents there. Charter Review Cominission Open Session March 19, 2012 Page 15 SUBJECT DISCUSSION ACTION Mr. TenBruggencate liked the idea of districts and whether or not the numbers had gone up in support of districting, it was not correct to say that people seemed to want districts. All of the evidence was that every single time this had come before the voters, they said no. Mr. TenBruggencate said he had a problem with 2 year terms and 4 year terms sitting at the same time in the Council because that creates `super councils' with the potential to create animosities that might not be there if everyone was at risk every election. Mr. TenBruggencate suggested simplicity and did not think the proposal was simple enough. Mr. Justus said lie presented a full package with all the contingencies in it just to start the discussion. If it was too confusing it could always be proposed later on but if they could get the district thing out there and get it approved first,they could always add that in later which is why be included separate questions for the ballot question. Option A ballot question was how the district thing would work; the others are things that may or may not need to be included now such as term limits. Ms. Suzawa said a no vote was a no vote and caused discomfort when it kept coming back. Ms. Suzawa suggested there be a public hearing on districting. Ms. Suzawa further said she knew what was happening with the different rheas of the island because of friends and family tips and that the island was not so big that you could not keep in touch with what was going on. Mr. Nishida said he always voted against districting because lie wanted to vote for all of his Councihnembers. Also having been in a split district he was not always able to vote for the people he wanted. If the reapportionment was strictly based on population, it would split Kapa`a _ with a tirticn�irmt_g to the Northshore acid a portion of Kalaheo going to Charter Review Commission Open Session March 19, 2012 Page 16 SUBJECT DISCUSSION ACTION the South district; Hanamd'ulu would be with Wailua. Mr. Nishida thought. that narrowing dawn the place where the vote came from could bring new people in but lie was not sure it should be opened up for a public hearing until more details had been worked out.. In Section 3.03, Terms, Mr. Justus moved to remove the brackets in front offiar and following two years in the first and second line and delete two years for°district seats armct fommr yearsj6r at- large seats in the second sentence and the words .for district scats, and more than two consecutive f6ur year terrrms.for at-larger seats, in the last sentence. Mr. Guy seconded the motion. Ms. Suzawa said instead of rushing into making changes she would like to have the whole proposal looked at in its entirety and have a sub-committee work on the language and bring it back to the Commission. Mr. Justus withdrew the motion. Mr. Guy withdrew the second to the motion. Mr. TenBruggencate moved to create a special Sub-committee made up of Commissioners Suzawa, Nishida and Justus to study and review districting and bring a recommendation back to the Commission. Mr. Justus seconded the motion. Ms. Suzawaagreed to chair the Sub-committee and return with their recommendation at the April meeting. Motion carried fi:0 Chair Stack asked time Staff`for suggestions to take public testimony on the Mayor's authority. Ms. Davis deferred the question to Ms. Morikami noting that the Commission was at the point where they had to find the end for those issues that are to go on the ballot in 2012 to allow for the writing of the ballot Charter Review Commission Open Session March 19, 2012 Page 17 SUBJECT DISCUSSION ACTION questions and final legal review. Ms. Morikami said after working with the County's elections division to determine the timeline required for printing the ballot questions for the General Election, the dates were worked backwards from the State Election's deadline as shown in CRC 2012-03. It was hoped that the Commission could finalize those ballot items at this meeting to allow the legal analyst to write the findings and purpose as well as ballot questions, where needed, before the second review of the Commission and final legal review from the County Attorney's Office. Chair Stack asked what date they would be looking at if they wished to take public testimony. Ms. Morikami said based on the timeline, today would be the cutoff and the only way to consider taking items for public testimony would be to schedule a special meeting. Attorney Winn added that the Commission would need two more meetings to finish the redistricting because the Sub-committee would need to bring their recommendations to the Commission at the next meeting and then at a subsequent meeting the Commission could vote on those recommendations. Mr. Justus said it appeared the redistricting would have to go on the 2014 ballot. CRC 2011-13 Review and prioritize proposed amendments for consideration of l�cexment on the 2012 ballot (ongoing review) Ms. Suzawa recapped the status of the proposed amendments. Charter Review Commission Open Session March 19, 2012 Page 18 SUBJECT DISCUSSION ACTION 2012 Ballot Items: CRC 2011-05 §24.(:11 B —(percent of registered voter signatures on petition) CRC 2011-04 §2103 C—(percent of registered voter signatures for initiative and referendum) CRC 2011-07 §1.03—(clarification relating to the election of County Officers) CRC 2011-08 §23.01, §7.03, & §29.00 — (relating to salaries of County Officers) CRC 2011-11 §23.02 H--(term limits for board and commission members) Items deferred to 2014 or indefinitely: CRC 2011-01 §x'24.04--(correcting non-substantive language to the Charter) CRC 2011-09 §XV---(establishing a department of Human Resources) CRC 2011-12 §XX— (changes to the Code of Ethics) CRC 2011-15 §IXA--(no proposal brought forward by Prosecutor's Office) Mr. TenBruggencate thought that 5 ballot questions was a good number with the Sub-committee considering whether to put the question on this year's ballot "Shall the Charter Commission in the next election bring back recommendations for districting". Attorney Winn stated that the Commission can only make charter amendments so they would have to make a change to the language in the Charter. Mr.TenBruggencate said if they were not making a specific proposal this year they could ask the voters if they want the Commission to look into districting. Attorney Winn said they could not use poll questions on the ballot; the question would have to reflect an actual change to the language in the Charter. rbe Commission was advised that y had approved the lariguajge Charter Rearview Commission Open Session March 19, 2012 Page 19 SL B3FC I DISCUSSION ACTION changes to the proposed charter amendments, the findings and purpose and ballot questions still need to be written. That will give the Commission one last chance to move an item to the ballot or to kill it. Announcements Next Meeting: Monday, April 23, 2012 at 4:00 pm, Meeting Room 2 A/B When asked if there was a possibility the Commission might consider one or two more ballot questions, Chair Stack said he would like to see the Commission make a deteimination about the Mayor's authority and include it as a ballot question. Staff will research available dates for a special meeting and advise the Commissioners accordingly. Adjourn cnt _ .. Chair Stack adjourned the meeting, 6 ()3 m� Submitted by: Reviewed and Approved by: _ Barbara Davis, Support Clerk Patrick Stack, Chair ( Approved as is. ( ) Approved with amendments, See minutes of meeting. ARTICLE V11 MAYOR Se_t4 on 05 . Powers, -,Ut4 es and Functions . The mayor shall be the chief executive officer of the county. He shall have the power to: A. Except as ot-herwise provided, exerC_4 Lse direct supervision over all departments and coordinate all ac-Lminist-rative activities and see that they are honestly, efficiently and lawfully conducted. B. Appoint the necessary members of his staff and other employees and officers whose appointments are not provided-Lded herein. C. Create positions authorized by the council and for which appropriations have been made, or abolish positions, but a monthly report of such actions shall be made to the council. D. Make temporary transfers of positions between departments or between subdivisions of departments . E. Recommend to the council for its approval a pay plan for all officers and employees who are exempt from civil service and the position classification plan and who are not included in Section 3-2 . 1 of the Kaua 'i County Code 1987, as amended. (Amended 2006) F. Submit operating and capital budgets, together with a capital program annually to the council for its consideration and adoption. C. s Sian instruments requiring execution by the county, including deeds and other conveyances, except those which the director of -inance or other officer is authorized by this charter, ordinance or resolution to sign. H. Present messages or information to the council which in his opinion are necessary or expedJent T­ — adrq J -�-4 report,Tn J to the annual report, make periodic reports d �_ � inf:ormina the Public as to county policies, programs and operations. J. Approve or veto ordinances and resolutions pertaining to eminent doma-in pros-eedings . CRC 2012-02 K. Have a voice but no vote in the proceedings of all boards and commissions . L. Enforce the provisions of this charter, the ordinances of the county and all applicable laws. M. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. CRC 2012-02 County Council- Partial Districting (Four District/Three At-Large) 1. "Section 3.02. Composition. There shall be a council of seven members [elected at-large]. Three members shall be elected at-large by all registered voters in the county. Each of the other four members shall reside in and shall be elected from a separate council district by registered voters residing in that separate council district. Section 3.03. Terms. The terms of office of[councilmembers] council members shall be [for two years] two years for district seats and four years for at-large seats beginning at twelve o'clock meridian on the first working day in December following their election. No person shall be elected to the office for more than four consecutive two year terms for district seats, and more than two consecutive four year terms for at-la[ge,seats: Section 3.04. Qualifications. A. To be eligible for the council, a person must be a citizen of the United States and must have been a duly qualified [elector] registered voter of the county for at least two years immediately preceding his or her filing candidacy papers for election [or appointment]. In addition, those candidates for the council who intend to represent one of the four council districts must state which district they intend to represent and that they have been a registered voter of that district for the preceding ninety days. Should a council member move from, or be removed from, any of the seven council positions from which that person was elected, any replacement appointee must meet all requirements of a candidate for that position. B. Any [councilman] council member who removes his or her residence from the county or district from which elected, or is convicted of a felony, shall immediately forfeit his or her office. Section 3.19. District Election and Reappointment. A. The first election by separate council districts shall be in the primary election of 2014. B. The year 2021 and every tenth year thereafter shall be district reapportionment years. C. An initial council district apportionment commission shall be constituted on or before the first day of April, 2013. A council district reapportionment commission shall be constituted on or before the first day of July of each district reapportionment year or whenever district (Revised 2/16/12 by Ed Justus) CRC 2011-17 reapportionment is required by court order. The commission shall consist of seven members. The members of the commission shall be appointed by the mayor and confirmed by the council. The initial council district apportionment commission shall be responsible for designating the geographic boundaries of the council districts provide for above. The council district reapportionment commission shall be responsible for the reapportionment and redistricting of those districts. The commission shall elect a chair from among its members. Any vacancy in the commission shall be filled in the same manner as for an original appointment. The commission shall act by the majority vote of its membership and shall establish its own procedures. No member of the commission shall be eligible to become a candidate for election or appointment to the council in the initial election held under any apportionment or reapportionment plan adopted by the commission. The commission shall be furnished all necessary technical and secretarial services. The mayor and the council shall appropriate funds to enable the commission to carry out its duties. D. In effecting the initial apportionment and each subsequent reapportionment, the commission shall be guided and comply with all applicable Federal and State Laws. E. On or before February 1 of the year following appointment, the commission shall file with the county clerk an apportionment or reapportionment plan, which shall become effective upon its filing. F. Any registered voter may petition the proper court to compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in the district apportionment or reapportionment plan, or the court may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition must be filed within forty-five calendar days after the filing of the plan. G. The commission's tenure shall end upon the filing of its plan." (Deleted material is bracketed; new material is underlined) (Revised 2/16/12 by Ed Justus) CRC 2011-17 2. Ballot Question 1: Option A: 1) Effective 2014, shall four of the seven council members be elected by districts (North Shore, Eastside, South Shore/Central, Westside) and three of the seven council members be elected at-large, with a commission to be appointed in 2013 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? 2) If partial-districting of the council is approved, shall council members elected by district serve two-year terms and council members elected at large serve four-year terms? Option B: 1) Effective 2014, shall four of the seven council members be elected by districts (North Shore, Eastside, South Shore/Central, Westside) to serve two-year terms, and three of the seven council members be elected at-large to serve four-year terms, with a commission to be appointed in 2013 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? Ballot Question 2: 1) If partial-districting of the council, with two-year terms for district seats and four-year terms for at-large seats, is approved, shall the term of office for council members elected by district be limited to four consecutive two—year terms, and for council members elected at- large be limited to two consecutive four-year terms? (Revised 2/16/12 by Ed Justus) CRC 2011-17 CHARTER REVIEW COMMISSION Special Committee on County Districting AUTHORITY: The Special Committee on County Districting is hereby established pursuant to Section 92-2.5, Hawaii Revised Statues and Rule 6, Rules of the Kauai County Charter Review Commission. COMMITTEE MEMBERS: Ms. Carol Suzawa, Chair Mr. Ed Justus, Member Mr. James Nishida, Jr., Member SCOPE OF INVESTIGATION: A Special Committee is hereby established by the Charter Review Commission to consider possible amendments to the Kauai County Charter related to establishing County Districting and possible changes in Term Limits for District Seats. The Committee may: 1. Research, request and arrange for experts to present information about County Districting and possible changes in Term Limits for District Seats; (Note: Prior to requesting any expenditure of funds,the Committee shall ensure that any experts conduct the necessary advanced research to determine whether the County Charter can be amended to provide for County Districting and changes in Term Limits for District Seats and still conform to the provisions of the Hawaii State Constitution and Hawaii Revised Statutes.) 2. Research and obtain written materials on the subject of County Districting and possible changes in Term Limits in District Seats; and 3. Consider public input regarding suggested changes in County Districting and possible changes in Term Limits in District Seats. The Committee shall prepare and submit a written report for consideration at a duly noticed meeting of the Charter Review Commission. The report shall contain an overview of the Committee's findings and recommendations as well as an explanation of any proposed amendments to the County Charter as may be necessary or desirable to implement County Districting and changes in Term Limits in District Seats for the County of Kaua'i. SCOPE OF MEMBER'S AUTHORITY: The authority of the members on the Special Committee on County Districting shall only be advisory in nature and do not represent the views of the Charter Review Commission or the County of Kaua'i. The Committee's findings and recommendations shall not be binding on the Charter Review Commission or the County of KauaT 2011-17 a. Subcommittee Report On CRC-2011-17 (Proposed Amendment for Council Partial-Districting) Date & Location of Subcommittee Meeting: Thursday, March the 22 `, 5:30pm at Tiano's Restaurant, Lihue, HI [Note: no County money orfunds were spentfor this meeting] Attending Commissioners: Mrs. Carol Suzawa (Subcommittee Chair), Member Mr. James Nishida, Jr., Member Mr. Ed Justus, Member Reason for Subcommittee: At the Commission meeting on 03/21/2012, Mr. Justus presented a proposal for amending Sections 3.02-.04 and creating a Section 3.19 for the purposes of creating partial districting for the Council. The Commission voted to establish a Subcommittee to examine Mr. Justus's proposal and present to the Commission its recommendations. Summary of Discussion: Mr. Justus explained his proposal, and reason for proposing it,to the subcommittee. Mr. Justus explained that during his campaign for Council in 2010, he met many people in the community that stated they wanted some form of district representation in the Council. He explained that many Westside residents were in favor of partial districting, but voted against it in 2006 because the Westside and South Shore were made as one seat, whereas East and North each had their own seat. His reasoning for presenting his amendment with four seats as compared to the previously proposed five or three seats was that four seats better fit with the island communities natural view of the island as four segments: North Shore, Eastside, South Shore, Westside—different from the State's three and the historic five. He further explained that districts could help the people in those particular districts have a point person to whom they could address their issues for the community. He also explained that by having the district seats as the majority on the Council, it would allow the at-large members to be required to hear the voice of the districts in order for a majority vote to pass. The subcommittee discussed at length the pros and cons of the proposal, potential shortcomings, potential benefits, alternate methods of districting (including the proposal by Jonathan Jay), reasons for maintaining of current structure, various numbers of districts for partial districting, Hawaii state's counties Council structuring, council structures nationwide,their own personal polling results for partial districting, history of proposals for partial-districting (finding twice proposed by Council ['82, '90] and twice proposed by Charter Commission ['96, '06]), meanings of voting number differences for each previous proposal, and potential for voter approval. The subcommittee decided CRC 2011-17 b. that if the proposal by Mr. Justus was to be discussed, it should be in its simplest form: dealing only with partial districting, not increasing of term lengths or imposing of limits. The point was made that if this Commission decides not to put it on the ballot, the partial-district proposal likely would again come up. Mr. Justus stated that, given how continually the districting issue comes up, there is evidently a growing and continuing need to have the Council more responsive to those that elect them. The subcommittee agreed that partial-districting only one possible way to answer that need, but not a guarantee that it would. In addition to the two proposals for Council districting by Mr.Justus and Jonathan Jay, the subcommittee discussed two alternate options:the creation of Neighborhood Boards; or the creation of a permanent Council Regional Committee. The subcommittee discussed these options further and decided the best course was to present the four main options to the Commission to decide how to proceed on addressing this apparent need for better interaction with and better responsiveness from the Council. Proposal from the Subcommittee: The subcommittee hereby suggests to the Commission the following four options as methods to answer the reoccurring need of better responsiveness from the Council: 1) Partial Districting of the Council (proposal by Mr.Justus)— The Council would consist of seven (7) members,three (3) elected at-large and four(4) elected by district. Voters could vote for all three at-large seats, and only one seat for the district that they reside in. A district apportionment committee would be created after the passing of the amendment to define the boundaries of the districts and a reapportionment committee would be created every ten years thereafter, after each census. 2) At-Large Districting of the Council (proposal by Jonathan Jay) The Council would consist of seven (7) members, each member residing in only one (1) of the seven (7) districts across Kauai County. Voters could vote for all seven at-large district seats, regardless of where they resided. A district apportionment committee would be created after the passing of the amendment to define the boundaries of the districts and a reapportionment committee would be created every ten years thereafter, after each census. 3) Neighborhood Boards (proposal from subcommittee) Each town would have a group of citizens, either elected or appointed, that would form a board or committee which would meet regularly to discuss and address the needs of their community. This could either be an entity below the County in governance, or could be an entity that reports its findings to the County, perhaps either specifically to the Council or Mayor or both, with possibly the requirement that either (or both) would be required to act in addressing the issues the Board brings up. There is question as to what power the County has to create such an entity, and furthermore what scope of powers would such a Board have. 4) Council Regional Committee (proposal from subcommittee) The Council would be required by the charter to have a "Regional Committee", whereupon each of the seven council members would either volunteer or be assigned to be the representative for one of the seven "regions" of the island. Each council member would be required to go out to their assigned region, perhaps once a month or every two months, and hold a meeting where community members could voice their concerns and ideas. Each council member would then report back to the regional committee what the community's input was and take action to address these needs. At each community meeting, each council member would also report back to the community what actions were taken by the regional committee to address their issue. Additionally, each council person would be the point-person to whom citizens of each region would address their concerns to, be it by phone, email, mail, or otherwise, between the regularly scheduled meetings. [Drafter's Suggestion: this amendment could occur in Section 3.07, as "Sub-section G".](It was discussed also that it could be possible to combine this proposal with the Neighborhood Board option.) Conclusion of Meeting: Subcommittee Chair Suzawa asked Mr. Justus if he would be willing to write up the subcommittee's proposal. Mr. Justus agreed. Meeting ended sometime after 8:00pm. Subcommittee Report Drafted by Commissioner Justus Approved By: Carol Suzawa, Subcommittee Chair James Nishida,Jr., Member Ed Justus, Member County Council- Partial Districting (Four district/Three At-Large) 1. "Section 3.02. Composition. There shall be a council of seven members [elected at-large]. Three members shall be elected at-large by all registered voters in the county. Each of the other four members shall reside in and shall be elected from a separate council district by registered voters residing in that separate council district. Section 3.03. Terms. The terms of office of[councilmembers] council members shall be for two years beginning at twelve o'clock meridian on the first working day in December following their election. No person shall be elected to the office for more than four consecutive two year terms. Section 3.04. Qualifications. A. To be eligible for the council, a person must be a citizen of the United States and must have been a duly qualified [elector] registered voter of the county for at least two years immediately preceding his or her filing candidacy papers for election [or appointment]. In addition, those candidates for the council who intend to represent one of the four council districts must state which district they intend to represent and that they have been a registered voter of that district for the preceding ninety days. Should a council member move from or be removed from, any of the seven council positions from which that person was elected, any replacement appointee must meet all requirements of a candidate for that position. B. Any [councilman] council member who removes his or her residence from the county or district from which elected, or is convicted of a felony, shall immediately forfeit his or her office. Section 3.19. District Election and Reappointment. A. The first election by separate council districts shall be in the primary election of 2016. B. The year 2021 and every tenth year thereafter shall be district reapportionment years. C. An initial council district apportionment commission shall be constituted on or before the first day of April, 2015. A council district reapportionment commission shall be constituted on or before the first dayof July of each district reapportionment year or whenever district reapportionment is required by court order. The commission shall consist of seven CRC 2011-17 c. members. The members of the commission shall be appointed by the mayor and confirmed by the council. The initial council district apportionment commission shall be responsible for designating the geographic boundaries of the council districts provide for above. The council district reapportionment commission shall be responsible for the reapportionment and redistricting of those districts. The commission shall elect a chair from among its members. Any vacancy in the commission shall be filled in the same manner as for an original appointment. The commission shall act by the majority vote of its membership and shall establish its own procedures. No member of the commission shall be eligible to become a candidate for election or appointment to the council in the initial election held under any apportionment or reapportionment plan adopted by the commission. The commission shall be furnished all necessary technical and secretarial services. The mayor and the council shall appropriate funds to enable the commission to carry out its duties. D. In effecting the initial apportionment and each subsequent reapportionment,the commission shall be guided and comply with all applicable Federal and State Laws. E. On or before February 1 of the year following appointment, the commission shall file with the county clerk an apportionment or reapportionment plan, which shall become effective upon its filing. F. Any registered voter may petition the proper court to compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in the district apportionment or reapportionment plan, or the court may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition must be filed within forty-five calendar days after the filing of the plan. G. The commission's tenure shall end upon the filing of its plan." (Deleted material is bracketed; new material is underlined) 2. Ballot Question — Effective 2016, shall four of the seven council members be elected by districts (North, East, South/Central, West) and three of the seven council members be elected at-large, with a commission to be appointed in 2015 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? County Council- Seven Districts, At-Large 1. "Section 3.02. Composition, There shall be a council of seven members [elected at-large]. All members shall be elected at-large by all registered voters in the county. Each of the seven members shall reside in and shall be elected from a separate council district. Section 3.03.Terms. The terms of office of[councilmembers] council members shall be for two years beginning at twelve o'clock meridian on the first working day in December following their election. No person shall be elected to the office for more than four consecutive two year terms. Section 3.04. Qualifications. A. To be eligible for the council, a person must be a citizen of the United States and must have been a duly qualified [elector] registered voter of the county for at least two years immediately preceding his or her filing candidacy papers for election [or appointment]. In addition, candidates for the council must state which district they intend to represent and that they have been a registered voter of that district for the preceding ninety days. Should a council member move from or be removed from, any of the seven council positions from which that person was elected, any replacement appointee must meet all requirements of a candidate for that position. B. Any [councilman] council member who removes his or her residence from the county or district from which elected or is convicted of a felony, shall immediately forfeit his or her office. Section 3.19. District Election and Reappointment. A. The first election by separate council districts shall be in the primary election of 2016. B. The year 2021 and every tenth year thereafter shall be district reapportionment years. C. An initial council district apportionment commission shall be constituted on or before the first day of April, 2015. A council district reapportionment commission shall be constituted on or before the first day of July of each district reapportionment year or whenever district reapportionment is required by court order. The commission shall consist of seven members. The members of the commission shall be appointed by the mayor and confirmed by the council. CRC 2011-17 d. The initial council district apportionment commission shall be responsible for designating the geographic boundaries of the council districts provide for above. The council district reapportionment commission shall be responsible for the reapportionment and redistricting of those districts. The commission shall elect a chair from among its members. Any vacancy in the commission shall be filled in the same manner as for an original appointment. The commission shall act by the majority vote of its membership and shall establish its own procedures. No member of the commission shall be eligible to become a candidate for election or appointment to the council in the initial election held under any apportionment or reapportionment plan adopted by the commission. The commission shall be furnished all necessary technical and secretarial services. The mayor and the council shall appropriate funds to enable the commission to carry out its duties. D. In effecting the initial apportionment and each subsequent reapportionment, the commission shall be guided and comply with all applicable Federal and State Laws. E. on or before February 1 of the year following appointment, the commission shall file with the county clerk an apportionment or reapportionment plan, which shall become effective upon its filing. F. Any registered voter may petition the proper court to compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in the district apportionment or reapportionment plan, or the court may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition must be filed within forty-five calendar days after the filing of the plan. G. The commission's tenure shall end upon the filing of its plan." (Deleted material is bracketed, new material is underlined) 2. Ballot Question — Effective 2016, shall four of the seven council members be elected by districts (North, East, South/Central, West) and three of the seven council members be elected at-large, with a commission to be appointed in 2015 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? Sherman Shiraishi, Chair Members: Mary Lou Barela Patrick Stack, Vice Chair Joel Guy Ed Justus Jan TenBruggencate Carol Suzawa KAUAI COUNTY CHARTER REVIEW COMMISSION TO: Shaylene Iseri-Carvalho, Prosecuting Attorney Cc: Gary Heu, Managing Director Jake Delaplane, First Deputy Prosecuting Attorney FROM: Sherman Shiraishi, Chairperson '1-114 Via: John Isobe, Administrator, Office of Boards & Commissions\'Al DATE: November 30, 2011 RE: Request for Proposed Charter Language The Charter Review Commission, at its meeting on October 24, 2011, requested that the County Prosecutor's Office provide proposed Charter language, to include the Findings and Purpose, regarding: 1. Expanding the authority for the Office of the Prosecuting Attorney 2. Changes to the Office of the Prosecuting Attorney's budget and financial procedures It is our further understanding that in addition to providing the proposed Charter amendment language to the Charter Review Commission, your office will concurrently distribute the same to the affected departments for review and comment to the Charter Review Commission. The Commission will place these items on its agenda upon receipt and initiate relevant deliberations regarding the same as the departmental comments are received. If you have any questions, please contact Paula Morikami at 241-4922. Thank you. CRC 2<-04 OFFICE OF THE PROSECUTING ATTORNEY COUNTY OF KAUA'L STATE OF HAII&TAI'l 3990 KAANA STREET. SUITE 210, L1HU1. HI 96766 TEL: (808)241-1888 FAX: (808)_241-17_58 prosecutonCakauai.gov Shaylene Iseri-Carvalho Prosecuting Attorney Jake Delaplane Sam Jajich First Deputy Prosecuting Attorney Second Deputy Prosecuting Attorney April 10, 2012 TO: Charter Review Commission FR: Prosecuting Attorney Shaylene Iseri-Carvalho RE: Proposed Charter Amendments Relating to the Office of the Prosecuting Attorney The Office of the Prosecuting Attorney has submitted to the Charter Review Commission the following proposed amendments to the Charter as it relates to the Office of the Prosecuting Attorney. Before being placed back on the agenda, the commission requested that we send the proposed amendments to KPD for input. We have received the requested input and will be providing said input at the April 23, 2012 meeting. 1. Proposed Revisions to the Powers, Duties,and Functions of the Of Under the current Charter,the powers, duties, and functions of the Office of the Prosecuting Attorney (OPA) are not delineated in a way that clearly and accurately reflects the operations of the OPA. In order to clarify the Charter and bring it into parity with the well-established practices of the OPA,we are proposing the following amendments to the section IXA of the Charter: (revisions italicized) Section 9A.03. Powers, Duties and Functions. (1) The prosecuting attorney shall: A.Attend all courts in the county and conduct on behalf of the people all prosecutions therein for offenses against the laws of the State and the ordinances and regulations of the county. B. Prosecute offenses against the laws of the State under the authority of the Attorney General of the State. C.Appear in every criminal case where there is a change of venue from the courts in the county and prosecute the same in any jurisdiction to which the same is changed or removed.The expense of such proceeding shall be paid by the county. D. Institute proceedings, or direct the chief of police to do so,before the district judge for the arrest of persons charged with or reasonably suspected of public offenses,when he has information that any such offenses have been committed, and Deputy Prosecuting Attorneys. Lisa R.Arin Melinda K.Mendes Gary Nelson Jared Anna John H.Murphy Ramsey Ross Lance Kobasbigawa Rebecca A.Vogt CRC 20 LZ-04 a. An Equal Opportunity Employer for that purpose take charge of criminal cases before the district judge, either in person or by a deputy or by such other prosecuting officer as he shall designate. E. Draw all indictments and attend before and give advice to the grand jury whenever cases are presented to it for its consideration.Nothing herein contained shall prevent the conduct of Z� proceedings by private counsel before all courts of the State under the direction on the prosecuting attorney. (Amended 1972) 2. The prosecuting attorney may: A. Research, evaluate, and make recommendations regarding crime, crime prevention, and the criminal justice system to the governor, the legislature, the judiciary,udiciary, the council, the mayor, the Kauai Police department and other criminal justice ustice aaencies, or the general public, as the prosecuting attorney deems appropriate. B. Provide crime awareness and prevention programs for law enforcement agencies, citizens, businesses, and civic groups. C Develop public education programs through various broadcast or print media, to provide the general public information that will assist citizens in developing the knowledge and confidence to prevent crime and to avoid being victims of crime. D. Receive and expend financial grants, donations and other funds as permitted by the provisions of the revised charter, county ordinances and applicable city, state, and federal financial and budget policies for crime research, prevention, and education. This amendment tracks the language adopted by the City and County of Honolulu in 2010 after several years of careful evaluation and assessment of the proper role of the Prosecuting Attorney's Office. This role encompasses not only the in-court 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. As many of you are aware,the Office of the Prosecuting Attorney has had a long history of working not only with law enforcement agencies, but with non-profit and civic groups like the YWCA, Hale Opio,the Visitor Aloha Society of Kaua'i, Crime Victim Compensation Commission, and Children's justice Center to fulfill these well-established functions. However,the current charter language does not specifically address the powers of the OPA as it relates to these important working relationships. Thus,the above language is needed to bring the Charter into parity with the proper role and function of the OPA. 2. Proposed Revisions to other Sections of the Charter as it relates to the autonomy and hierarchical structure of the OPA within the framework of the County Government The Charter also contains multiple provisions under Article XIX that seem to require the Prosecuting Attorney, as a department head, to submit her budget to the Mayor for approval before being sent to the Council for consideration and adoption. This structure is illogical, duplicates efforts, and creates the unusual situation in which one elected official (the Mayor) has direct control over the budget of another elected official (the Prosecuting Attorney). The Mayor is typically not, and is not required to be, an attorney or law enforcement official and has no training or background in the criminal justice process. Thus, the decisions as to whether certain budget items or expenditures relating to the specialized functions of the OPA are appropriate should not rest wholly or in part with the Mayor. Rather, these questions should be submitted directly to the County Council, a body of elected officials with clearly delineated and specified powers to research, solicit testimonial evidence, and evaluate these types of specialized budget requests. Currently,the OPA engages in both types of budget submittals, one to the Mayor's Office pursuant to Article XIX Section 19.02 B of the Charter, and another to the County Council through submitting testimony during the public hearing process pursuant to Section 19.07A of the Charter. This process is not only duplicative, but extremely time consuming. Since the Mayor's review often takes place in February of each year, the OPA typically begins preparing its budget proposal in January. After the Mayor's review,the OPA makes any appropriate changes or revisions in order to present to the Council during their review process,which usually occurs during April. Since the Council doesn't vote on the Budget until May,this means that the budget preparation process for the OPA stretches out over a 5 month period. This process should be streamlined by allowing the OPA to submit its budget directly to council rather than going through the Office of the Mayor. For this reason,we're asking that Article XIX Section 19.02E be amended to read as follows: On or before the date specified by the mayor, the appointed department heads of each county department, office or agency shad furnish the mayor with estimates for the ensuing fiscal year covering the revenues and expenditures of the department office or agency, together with such information as the mayor may request For these reasons, the OPA respectfully requests appropriate revisions and amendments to Article XIX of the Charter to eliminate the OPA's required budget submittal to the Mayor and allow for direct submittal to the Council for consideration and adoption. The OPA may submit additional proposed language for discussion at the April 23, 2012 meeting in a separate attachment. Mahalo, Shaylene Iseri-Carvalho Prosecuting Attorney OFFICE OF THE PROSECUTING ATTORNEY COUNTY OF KAUAI, STATE OF FIAWAFI 3990 KAANA STREET, SUITE 210,LTHU'E, HI 96166 TEL: (808)241-1888 FAX: (808)241-1758 prosecutor Cw.kauai.gov Shavlene Iseri-Carvalho Prosecuting Attorney Jake Delaplane Sam Jajich First Deputy Prosecuting Attorney Second Deputy Prosecuting Attorney April 10, 2012 TO: Charter Review Commission FR: Prosecuting Attorney Shaylene Iseri-Carvalho RE: Proposed Charter Amendments Relating to the Office of the County Attorney The Office of the Prosecuting Attorney hereby submits to the Charter Review Commission the following proposed amendments to the Charter as it relates to the Office of the County Attorney. Throughout the past several years,the OPA and numerous other County Agencies and Departments have experienced serious difficulties in being represented by a County Attorney's Office that frequently ignores their ethical and professional duty to avoid conflicts of interest. For these reasons, the OPA is requesting an agenda item to discuss amending Article VIII of the Kaua'i County Charter to include language mandating the avoidance of conflicts of interest, as well as language that provides for the appropriate procedures to follow when a conflict arises. In support of this request,the OPA provides the following suggested language for Article VIII: See.-- Conflicting Representation Prohibited. (a) The county attorney shall not represent a county client if the representation of that client will be directly adverse to another county client, unless: The county attorney reasonably believes the representation will not adversely, affect the relationship with the other client, and (2) Each client consents after consultation. (b) The county attorney shall not represent a county client if the representation of that client may be materially limited by the county attorney's responsibilities to another counts client or to a third person, or to the county attorneys o-u,,n interests, unless: (1) The county attorney reasonably believes the representation 1-will not be adversely affected, and (2) The client consents after consultation. Deputy Prosecuting Attorneys: CRC 2012-05 Lisa R.Arm Melinda K.Mendes Gary Nelson Jared Anna John H.Murphy Ramsey Ross Lance Kobashigawa Rebecca A.Vogt An Equal Opportanity Employer Sec.-- Mandatory Disclosure and Engagement of Special Counsel. (a) Prior to each instance of representation, the county attorney shall conduct an assessment to ascertain whether the representation constitutes a conflict or potential conflict as defined in section---, Conflicting Representation. (b) The county attorney shall disclose to the client the conflict or potential for conflict at the outset of each instance of representation. The disclosure shall anticipate all possible ossible scenarios and shall include an explanation of the implications of , the common representation and the advantages and risks involved (c) Following disclosure, the office of the county attorney shall allow affected clients who do not consent to the concurrent representation to consult with and retain independent counsel. (d) Independent counsel shall be retained in accordance with the procurement law and the county charter, and the fees established through a method by the procurement law. Independent counsel fees shall be paid from the special counsel appropriation in the budget of the office of the county attorney. If the funds in the special counsel appropriation are insufficient, fees will be paid from the funds designated by the county council. (e) The county attorney's duties to assess conflicts, disclose conflicts or the potential for conflicts and allow consultation and retention by independent counsel shall continue throughout the representation. Sec. Penalties. In addition to penalties prescribed by law, any lawyer violating this provision may be subject to ' y Council bypassing a termination. The termination process shall be initiated by the Count resolution ordering the Alayor to terminate the County Attorney. Furthermore, the County, Council shall transmit a letter to the Qft'ice of Disciplinary Counsel to disbar the County Attorney. Sec.—-- No Conflict with Federal or State Law. Nothing in this Article shall be interpreted or applied so as to create any requirement, power or duty in conflict with any federal or state law. SECTIOA13, Severabilhy. If any provision of this Article, or the application thereof to any person or circumstance is held invalid, the invalidity= does not affect other provisions or applications of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable." Mahalo, Shaylene Iseri-Carvalho Prosecuting Attorney OFFICE OF THE PROSECUTING ATTORNEY COUNTY OF KAUAI, STATE OF HAWAFI 3990 KAANA STREET, SUITE 210, LTHU'E,HI 96766 - TEL: (808)241-1888 FAX: (808)241-1758 _4� prosecutors kauai.gov Sharlene Iseri-Carvalho Prosecuting Attorney Jake Delaplane Sam Jajich First Deputy Prosecuting Attorney Second Deputy Prosecuting Attorney April 10, 2012 TO: Charter Review Commission FR: Prosecuting Attorney Shaylene Iseri-Carvalho RE: Proposed Charter Amendments Relating to the Police Department The Office of the Prosecuting Attorney hereby requests an agenda item on the April 23, 2012 Charter Review Commission Agenda relating to a proposed amendment to Article X1 of the Kaua'i County Charter. The OPA is requesting an item discussing an amendment to the Article X1 of the Charter providing for a Senior Legal Adviser, appointed by the Police Chief, to serve as legal adviser and counsel for the Police Chief. Specific language of this Charter Amendment will be provided from testimony submitted at the Charter Review Meeting. Mahalo, C.= ,-- Shaylene Iseri-Carvalho Prosecuting Attorney CRC 2012-06 Deputy Prosecuting Attorneys: Lisa R.-Arin Melinda K.Mendes Gary Nelson Tared Auna John H.Murphv Rarnsev Ross Lance Kobashigawa Rebecca A.Vogt An Equal Opportunity Employer