HomeMy WebLinkAbout2012_0521_CharterAgendaPacket Patrick Stack Members:
Chair Mary Lou Barela
Joel Guy
Ed Justus
Carol Suzawa James Nishida,Jr.
Vice Chair Jan TenBruggencate
COUNTY OF KAUAI CHARTER REVIEW COMMISSION
NOTICE OF MEETING AND AGENDA
Monday, May 21, 2012
4:00 p.m. or shortly thereafter
Mo'ikeha Building, Meeting Room 2A,/B
4444 Rice Street, Llhue, HI 96766
CALL TO ORDER
APPROVAL OF MINUTES
Regular Open Session Minutes of April 23, 2012
EXECUTIVE SESSION
Pursuant to Hawai'i Revised Statutes §§92-4 and 92-5 (a) (4), 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-3: Briefing from the County Attorney on his Confidential Communication as it relates to
Section 7.05 of the Kaua'i County Charter on the powers, duties and functions of the Office
of the Mayor and Item CRC 2012-02.
BUSINESS
CRC 2012-02 Deliberation and decision-making on a possible amendment to the Kaua'i County
Charter related to Article VIL 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 3.031 Terms, and Section 3.04
Qualifications relating to Partial Districting. (ongoing)
b. Discussion and possible decision-making on the findings and recommendations of
the Special Committee on County Districting to the Charter Review Commission as
presented to the Commission at the April 2'), 2012 meeting, pursuant to FIRS §92-2.5
c. Special Committee proposed amendment for County Council Partial Districting
(Four Districtf,"Three At-Large)
d. Special Committee proposed amendment for County Council Districting—Seven
Districts, At-Large
An Equal Opportunity Employer
CRC 2012-05 Memorandum dated 4/10/12 from the Attorney's y's Office proposing
Z�' -
charter amendments to Article VIII relating to the Office of the County Attorney
(deferred from 4/23/12)
b. Proposed changes from Commissioner Ed Justus to Article VIII
I
CRC 20121-06 Memorandum dated 4/10 12 from the Prosecuting Attorney's Office proposing
charter amendments to Article XI relating to the Police Department (deferred from
4%12/12)
CRC 2012-07 Item 2 of Memorandum dated 4/101/12 from the Prosecuting Attorney's Office
proposing a charter amendment to Article XIX, Section 19.02 B, to change the
budgetary process (deferred from 4/12/12)
CRC 2012-08 Review and discussion of Findings & Purpose and Ballot Questions for consideration
of moving proposed charter amendments for legal review by the County Attorney's
Office.
ANNOUNCEMENTS
Next Meeting: Monday, June 25, 2012 at 4:00 pin in the Mo'ikeha Building, Meeting Room 2A,/B
ADJOURNMENT
EXECUTIVE SESSION
Pursuant to HwAai'i 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 224-hours prior
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to the meeting indicating.-
I. 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
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.
Charter Review Commission—May 21, 2012 2 1 11 a g e
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
th 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:bdqvis0Uauai.,-o-
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--May 21, 2012
JR.�IAF� T A jj�T�J B
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COUNTY OF KAUAl roued
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Minutes of Meeting
OPEN SESSION
Board/Corronuttee: rC'HARTER REVIEW COMMISS16—N—_ Meeting late April 2:3, 2012
Meeting: 6:31 pmi.
Tocation Mo'ikeha Building, Meeting lZoom 2A/2B Start of Meeting: 4-00 p.Km� :jtE:,:n:d::(o)�1`
l'resc
Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: Mary [,on Barela; Joel Guy; Fd Justus; Jarnes Nishida; Jan 'feriBruggencate
Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff". Support Clerk Barbara Davis, Administrator
Paula Morikarni, Administrative Aide Teresa 'famura
Public festi fiers: Met Rapozo; Jake Delaplane; Jay Furf`aro; Gary Hen; Shaylene Iseri-Carvalho, Wally Rezentes, Jr.
7A7 bs_e_nt ____
S(..JBJECT DlS(.',USS1ON ACTION
CaIlTo Order Chair Stack called t_hcti,_i_eeting_ to—order"at 4:0 0_
p,m. with 6 Commissioners present; the 7`"
member arrived shortly thereafter
Approval of 201 ................
_KeZq1,arQpgjj_S ssion Minutes of'March 19. 2
Ms. Bareta moved to approve the minutes of
minutes March 19 as circulated, Mr, 'fenBruggencate
seconded the motion, Motion carried 6:0
Minutes of Special Meefing_Ap il 2 Mr. Justus moved to approve the minutes of
j:_ L
April 2 as circulated, Ms. Bareta seconded the
motion. Motion carried 6:0
Business Before deliberation began on the proposed amendments on the agenda, Ms.--- —---------
Morikarni reminded the Commissioners that based on the State Elections
requirements the Office of Boards & Commissions determined that March
19 needed to be the last day to consider proposed amendments to meet the
overall timeline for the 2012 ballot. Based on today's agenda items, if the
Commission were to vote in final form on any agenda item by the end of the
meeting, it would be submitted to the legal analyst along with the 5
j)_ p
_Prev 0_!� ,ap_!j_ ed amendinents,
............
Charter Review Commission
Open. Session
April 23, 2012 Page 2
SUBJECT DISCUSSION ACTION
Mr. TenBruggencate wanted to clarify that after the meeting, anything;the
Commission would be working on would be for the 20 W ballot. Ms.
Morikami said correct considering the Commission had already passed the
original deadline by one month. This now shortens the time for the legal
analyst to complete their work by `f2 month and shortens the time for the
County Attorney's legal review by 1/2 month to keep up with the schedule.
Ms. Morikami could not confirm but had heard there were two possible
proposed amendments through the County Council and had not heard of any
from the public.
Mr. TenBruggencate asked what deadlines were faced by any citizen
proposals. Ms. Morikami said it would be the sane based on the County
elections. Mr. TenBruggencate asked if the Charter Commission was being
held to a higher standard than the County Council and the citizens in terms
of timing. Ms. Morikami said no because based on past practice the
Commission wanted the legal analyst to put the proposals in final fonn to
be returned to the Commission to review and approve before going back to
the County Attorney for the final legal review.
CRC 2012-02 Deliberation and decision-making n a possible amendment
to Kauai CcurtCharter related to Article VIIy Section 7.(}5 as to the
Ma cy >r, au rority over cc srrmr si<'n-appointed department heads (ongoing)
Met Rapozo, spoke as an individual Councilmember, and advised the
Commission that there were a couple of charter amendments being proposed
by the County Council which require two readings of the Resolution before
it can be passed. One of the proposals is to clarify that the Mayor would
not have the authority over the Commission appointed department heads but
it has not made it to the first reading Mr. Rapozo said that he believed the
Charter Review Corrunission,
Open Session
April 23, 2012 Page 3
SUBJEcr DISCUSSION
ACTION
Council had until the end of next month for proposals and Mr.
TenBruggencate should check with the County Clerk on the timeline. Mr.
Rapozo did say fie did not know what the internal policy was for the Charter
Commission and they would have to abide by those policies. Mr. Rapozo
felt it was clear that the Mayor's authority should not reach into the
Commission appointees and thought that was the way the structure was
originally set up, Mr. Rapozo said that the Police Commission was seeking
a declaratoryjUd&nuent but was not sure how long it would take, Mr.
Rapozo said a lot of the legal community has interpreted that the
ominission, is responsible for the Commission appointed Department Head
but our Mayor and our Coutity Attorney apparently do not feel that way so
maybe a clarification is necessary. Mr. Rapozo said he would not like to see
the Charter changed every time there was a dispute on an interpretation but
this was critical and what occurred in the last few months caused substantial
disruption to our public safety system. Mr. Rapozo said he was submitting
a Resolution that would provide a Charter amendment to clarify the
authority"except for those commission appointed and legislative branches
of government". That Resolution requires 2 readings plus a super-majority
of 5 votes to move it forward.
Asked what his second charter proposal was, Mr. Rapozo said it was to
provide the Office of Counsel Set-vices w'ith its own legal counsel but he did
not think they would get the 5 votes for it. Councilmember Furfaro has
also submitted a Resolution to clarify"shall and may". Mr. Rapozo said
another one he was submitting was to tighten up the financial reporting from
the Finance Department to the Council.
Mr. Justus asked Mr. Rapozo for copies of what he was submitting to avoid
a duplication of efforts.
Charter Review Commission
Open Session
April 23, 2012 Page 4
SUBJECT DISCUSSION
ACTION
_.... _ _ _�...._._
Attorney Winn asked'the Commission to return to the agenda item which ,
was the Mayor's authority over commission-appointed department heads
rather-than what the Council is doing.
Mr. Nishida said he agreed with Mr. Rapozo about not making
(unnecessary) changes to the Charter since it seemed it was a personnel
problem that occurred. With a declaratory judgment coming up it does
seem premature to propose a change to the Charter before hearing what the
court has to say. Mr. Nishida also felt the Charter was clear as it was
stated.
Mr. Rapozo said that the recent interpretation of the Charter could be
subject to the sane interpretation by the next Mayor or the next Chief so
this is not to just resolve this issue that occurred but to rectify any potential
problems going forward. Mr. Rapozo said that the Commissions need to be
insulated from the political powers of the Administration.
Ms. Suzawa asked if the language Mr. Rapozo was working on would be
reflected only in Section 7.05 and not under the individual commission
sections of the Charter. Mr. Rapozo said that was correct.
Chair Stack said with the forthcoming declaratory judgment would it not be
redundant for the Charter Commission to be doing what the Police
Commission could do or the County Council, Chair Stack said he heard Mi..
Rapozo say this was the Charter Commission's responsibility and we should
crake this an amendment. Mr. Rapozo said no, the Charter Commission's
responsibility is to determine what is in the best interest of the community
because no one knows what the Judge is going to say with the declaratory
judgment. Mr. Rapozo said he will be submitting his proposed amendment
but believed it should gc> _aarallcl with the Charter Commission in case his
Charter review Commission
Open Session
April 23, 2012 Page 5
SLJ Jf CT DISCUSSION -
amendment sloes not make it oil the Council side. Regardless of the court
decision, if the Charter Commission feels the Mayor does not have the
authority over Commission appointed department heads the language should
be clarified.
Ms. Suzawa said the Commission struggles with language and did not think
it was the Commission's intent to change the Charter but rather just to
clarify it and asked if the Commission could see Mr. Rapozo's proposed
language.
Mr. Guy said in the past the Commission had been challenged with the
question of whether the Mayor should be a stronger Mayor system and
whether the Mayor should hire and fire his department heads That was not
the way the Charter Commission wanted to move forward. The
Conmissions wanted to have that insulation within their department heads
acid we agreed that was the intent of what the Commissions were there for.
While we want the change, everybody is saying it is already clear based on
the current language and that the Mayor overstepped his authority.
Jake Delaplane, First Deputy Prosecuting Attorney, thought there was a
need for clarity because the County Attorney's opinion covered the powers
as it relates to the appointed department heads. It raises a question whether
that power extends to an elected department head who is appointed by the
people and in a similar issue.
Jay Furfaro, County Council, thanked the Charter Commissioners for their
service. The Council has the opportunity to submit its own Charter
amendments but wanted to see what the Charter Commission produced.
Ciaryy llcu, ManaDirector, said lie was hearing from different entities
Charter Review Commission
Open Session
April 23, 2012 Page fi
SUBJECT --— _ .. ._. _ _ DISCUSSION ACTION
_ M_
that perhaps the Charter does not need to be changed. Mr. Rapozo said the
legal opinions lie had heard said the Charter was crystal clear and the Mayor
had overstepped his authority. That is not necessarily the message that Mr.
Hen was hearing. There are a lot of different opinions and perspectives on
the Charter and the legal guidance provided by the County Attorney's Office
fairly clearly states that the Mayor was well within his authority in taping
the actions he did in this case. It is difficult for the Commission and the
public to digest some of this because the actions taken were based on a
specific set of circumstances which the Commission is not privy to those
specific circumstances that existed.. What they were exposed to was the
chatter in the public about who is right and who is wrong. Mr. Hen said he
believed the Mayor was in agreement that there was not a need to change
the Charter. Mr. Heu asked the Commission if they had seen the opinion
from the County Attorney's Office relative to this authority issue.
Mr. TenBruggencate said he was disappointed knowing that this
Commission has been wrestling with this issue for some weeks and had not
been provided with any legal justification from the Administration or the
County Attorney's Office. Mr. TenBruggencatc felt the Charter was crystal
clear and the legal authorities he spoke with have agreed with that. He said
he was prepared to leave this in the hands of the courts for now. Something
may be broken but it is not the language of the Charter which does not need
to be changed. The intent of the Charter, based on its plain language, is that
the Mayor does not have employment authority of any kind over those
specific Commission-appointed department heads that the Charter
references. The opinion might have been instructive but given the time
considerations, the Con-unission may not be able to do anything for this
election.
Mr. Hen ur the,_Coommission to seek out the County Attorney's o ip nion,
Charter Review Commission.
Open Session
April 23, 2012 Page 7
_ ._ DISCUSSION ACTION
of nothing anon, than f
g or their edification purposes. The Charter sloes
provide for the Mayor to provide the daily oversight over all departments
and having oversight and supervisory responsibility over the day-to-day
operations implies things such as discipline. The Charter is certainly very
clear on the hiring and removal of a Commission-appointed department
head. But in the day-to-day discipline and guidance of any
department./department head, it would be tough to provide that oversight
and be responsible for that oversight if there was not some level of authority
over providing that guidance and discipline. Mr. lleu wanted to keep that
separate and apart from any discussion on what the Charter says but from a
management perspective it would be difficult to have the responsibility and
oversight to manage an operation but not have the authority to provide
guidance and discipline.
Mr. TenBruggencate said he understood in this situation there were a couple
of unique circumstances which did not make it a standard disciplinary
oversight ease. r. TenBruggencate agreed that it would be difficult to
discipline someone over whom you have titular authority but not the hiring
and firing authority. The Charter anticipated that the running of the County
would not be easy.
Chair Staek said he heard Mr. I-Ieu say he wished the Commission was
aware of the details and they might have a different opinion so why not
make those details transparent, if not to the public, at least to the
Commission. Mr. Eleu said it would be difficult for the Commissioners to
digest all of this while not understanding the unique set of circumstances
that surrounded the actions. As to sharing the details, that was something
Mr. Hen,was not able to do because it involved a number of personnel
matters.
Charter Review Commissio n
Open Session
April 23, 2012 Page.
SUBJECT DISCUSSION
ACTION
Mr. Rapoao said the absolute deadline to submit any charter amendments to _.
the Elections Office is August 23, 2012. The Charter requires a 30-day
publishing by the Charter Commission, at least once, prior to the election.
Your deadline to the County Clerk is August 22 in final form(ballot ready).
The Council's own review period is from July 12 to August 22.
Shaylene Iseri-Carvalho, Prosecuting Attorney, said it was of concern to
learn that morning that this would be the last meeting to consider
amendments because they had been working diligently to get their
amendments as quickly as passible to the Commission. While she was
aware of the County Council's date, she was not aware of the Commission's
deadline and they would gladly welcome more time to provide input. The
deadline set by the Commission's internal policies coincides directly with
the time they are all stuck in budget,here and on the State level. Ms. Iseri-
Carvalho again asked the Commission if there were any opportunity to
obtain additional staff so the timelines could coincide with the timelines
dictated by the County Clerk which would definitely be serving the public.
Looking at the Police Chief and the powers of the Mayor, Ms. Iseri-
Carvalho feels the Charter was crystal clear as did Mr. TenBruggencate and
Mr. Guy. While all of this is in limbo this is the kind of sentiments that we
are currently operating under. It is one of uncertainty, it is one of fear, it is
one of intimidation because we are unable to perform our jobs fully as
expected to without these kinds of intrusions into the operations. It would
be irresponsible of Ms. Iseri-Carvalho not to shed light on the negative
impact or operations on public safety. Timing is of the essence to have this
issue be resolved because we cannot dictate the times of the judiciary but we
can clearly dictate the timing if this mater went on the ballot that there
would be some sort of vote taken at the end of the November election. The
worst scenario that could ever happen happened and to leave this situation
__ in limbo, whether or not the May has control over another elected official
Charter Review Commission
Open Session
April 23, 2012 Page 9
SUBJ EC'F,---___— DISCUSSION ACTION
and whether he could suspend the Prosecuting Attorney or the authority to
suspend any investigations done by the County Auditor's office because it is
all independent agency. The Mayor has proclaimed and the opinion seems
to support as stated by the Mayor's Administration that the Mayor as a
Chief Executive Officer has control over all of the County employees. That
was the broad staternent--all County employees which 11-lakes all of us
subjective to this fear, intimidation and uncertainty. There needs to be a
parallel track with the declaratory ruling because it can still make the
language better.
Chair Stack asked if in Ms. Iseri-Carvalho's many submissions to the
Commission, she had suggested certain words be changed within the
Charter itself Ms. Iseri-Carvalho responded yes.
Mr. Justus said, through testimony, he found that there is nothing wrong
with making the Charter clearer because it can only improve better legal
interpretations. It also seerned to be a common opinion that the Police
Chief should be free from political influence. To leave it otherwise seen-led
dangerous because it endangered public safety. It is important to act on this
now because a lot can happen before 2014. Waiting for a declaratory ruling
is not going to solve the situation because that is just for the Charter as it
stands now, Mr. Justus felt the Commission should act on this now.
Mr. Nishida thought the change should go into the section for the powers of
the Mayor but did not know if the wording would be particular only to the
commissions or particular only to disciplinary actions. Mr. Nishida thought
it was clear that the Mayor was in charge of all the administrative functions
of the County and he liked that. The Police Department needs a civilian
control. What Mr. Nishida perceives with the Commissions is when you
have a Iii lrly furicticir iii _dclarhnent head working with a Commission on
Charter Review Commission
Open Session
April 23, 2012 Page 10
SUBJ C.1 DISCUSSION
ACTION
__.a... ,.._. _._ -_ _... _
a monthly or hi-monthly basis you tend to develop an insular kind of
function. Especially with the Police Department and the Prosecuting
Attorney's Office where they can take away people's rights. Mr. Nishida
liked that time Administrative functions of the departments were clear but
was not sure if the changes could be discussed that will be the right changes
and still meet the internal deadline. Mr. Nishida did not feel they had all the
information they needed nor had they had enough discussion at this time.
Mr. Tenl3ruggencate said that he and Mr. Nishida had come to the same
conclusion but from entirely different directions. Mr. Nishida was
suggesting a wholesale change in the management of this County to a strong
Mayor form of government which was not what the Commission that
formed the Charter in the 1960's intended, not what they put in the language
of the Charter, and be did not think this Commission had enough discussion
to propose any change one way or the other. He agreed with Mr. Nishida
that the Commission did not have enough information to make the changes,
noting that they did not have the reasoning of the Attorney's Office opinion
on which the adrninistration acted. Lacking that reasoning, the Commission
did not know which part of the Charter they were interpreting whether it
was the authorities of the Mayor or the powers or lack thereof of the
Commission. Lacking that Mr. TenBruggencate did not think the
Commission could proceed.
Ms. Barela agreed with Mr. TenBruggencate.
Mr. Guy said the majority of the testimony heard at the special meeting was
to strengthen the Charter. Mr. Guy also did not like changing the Charter to
chase every objection but there was clarification wanted. Mr. Guy said he
was looking forward to moving forward to strengthening the Police
Commission's authority and not creatinsucls a strong Mayor.
Charter Review Commission
Open Session
April 23, 2012 Page I I
SUBJECT DISCUSSION ACTION
Chair Stack stated that the Commission had several choices one of which
was to table the item, come up with a motion to support what testimony has
suggested be done but they should not drag this issue on. It is the
Commission's responsibility to come to a collective decision that reflects
the will of the people of the County. Mr. TenBruggencate moved to defer this item to
the next meeting. Mr. Nishida seconded the
motion.
Mr. TenBruggencate said his motion actually defers this item to the 2014
ballot but keeps it alive and it will be on the next agenda. Doll Call Vote: Barela - Aye, Guy---Nay; Justus
—Nay; Stack_.Nay, Suzaw —Nay;
TenBruggencate-- Aye, Nishida--Aye
Ms. Suzawwa said her reason for voting nay was because she wanted to hear Motion failed 3:4
from Councihnember Rapo o to know if there was something out there first
be-fore malting her final decision.
Mr. Guy said he was not against voting to support that type of effort later
but just could not do that now.
Mr. Rapozo said he would go to his office to get a copy of the draft
language of his proposed amendment and reminded the Commission that
they were independent and the deadline to Council was August 22"a in final
fori-rt. If it is a staffing issue he highly suggested the Commission send a
letter to the County Council for staff support, which by the Charter they
have to provide. The Commission detennines and sets the schedule and
August 22"d is the deadline the Commission needs to work by. Mr. Justus made a motion to defer this item to
the bottom of the agenda.
Clair Stack asked Ms. Morikami about the difference in the dates because
he t6und the C'ommission's support staff to be exceedingly efficient.
Ms. Morikami said she had a note that Chair Furfaro had told staff that the
Charter Review Commission
Open Session
April 23, 2012 Page 12
SUBJECT __. _. DISCUSSION AC I'1C�N
Council's cut-off date is June; 1. The Boards and Commissions timeline is
longer because an outside legal analyst has been secured to review the
proposed cunendments and prepare the Findings and Purpose and the Ballot
Question for the Commission's review. Once the Commission has
approved the proposals to that point, they are then forwarded to the County
Attorney's Office for final legal review. After the legal review has been
completed, the Communications Team has to prepare the educational
information for the voters. All proposed amendment questions are due to
the State Election's Officer by August 23.
Ms. Suzawa wanted to clarify that July 23`d was the date for the
Commission to give its final approval of the language for the ballot
questions.
Ms. Morikami advised the Commission that the March 20 date for sending
proposed amendments to the Legal Analyst had been extended to the end of
the April 23 meeting to take into consideration the Commission's special
meeting to take testimony for CRC 2012-02. Mr. Guy seconded the motion. Motion to defer
to the bottom of the agenda carried 6:1
- — — TenBru 7 gencate—na
CRC 201 1-1 7 Pronosed amendments from Commissioner Justus revising __ ...
Article III, our�ty Council ectior2s 02 Composition Section 3.03
Ter- Sec flan 3.0 Qualifications relating to Partial Districts
a. co ae a�� utlority establishinthe Special Committee to consider
ossYllearr�cneiments to the Charter related toe tablishing County
Districtin x and possible clan��es in Tcx�n Limits for District Seats
b. Overview of the fin din gs and recommendations of the Special Committee
on Count Districtin , to the Charter Review Commission ursuant to HRS
___ u t
Charter Review Commission
Open Session
April 23, 20 t 2 Page 13
SUBJECT DISCUSSION
ACTION
_.._ __ w .
s
c. ecial C ommittec rca. osed amendment for Count Council Partial
Districtn CFQur District/Tbreeflt-Large)
d. S�ac;cial C:`c�tmmittee proposed amendment for County Council DistY-ictin�
Seven Districts=At-Lar�e
Mr. TenBruggencate asked if the members of the Special Committee would
yield to the question of which of Mr. Justus' proposals were they
recommending.
Mr. Justus said the Committee found that partial districting was only one
potential answer for a need that continues to come up, not only being
addressed by the Council but also by the Charter Commission. Instead of the
Committee deciding which direction the Commission should go, it was
decided to present four alternatives including the one proposed by Mr.
Justus and the one proposed by Jonathan Jay which are part of the Sub-
committee report. There was no recommendation.
Ms. Suzawa said they heavily relied can item 3 instead of trying to change
the way Council is elected, whether by district or members at-large, and the
effort would be to get more people to be represented from different areas.
They were of the opinion that the island was still not heavily enough
populated to be broken up into districts. Looking at the whole island, the
population is only 1/3 of the rini of the island and does not go into interior
so it does not merit districting. The whole purpose was trying;to get better
representation from different districts and perhaps by creating neighborhood
boards there would be a better way of getting the message into the
Councilmembers rather than cl=an inn .the Charter by creating districts at
Charter Review Commission
Chen Session
April 23, 2012 Page 14
SUBJECT CT DISCUSSION
ACTION
r. m_ _. ..
this tinge.
Attorney Winn reminded the Commission that the Special. Committee was
created at the previous meeting and per the Sunshine Law this meeting was
only for the Special Committee to present its findings and
recommendations. 'Fbe Commission could not deliberate on those findings
until the next meeting. Mr. TenSruggencate moved to defer this item to
the May meeting. Ms. Barela seconded the
Mr. Justus asked to rise to a question of privilege to tell Attorney Winn that motion.
lie did not finish reading the Sub-committee report and to ask if someone
was able to interject during a Sub-committee report to make a deferment.
Attorney Winn replied yes.
Motion to defer carried 5:2 Justus, Cru !a )
CRC 2012-04 Memorandum dated 11/30111 from the Charter Review _
Commission-to the Office of the Prosecuting Attorney requesting proposed
c rai ter tan uar c as rclates to the Office of the Prosecuting Attorney,
inclu4inFiiicli7is gild Purpose
a. Memorandum dated 4110/12 from the Prosecuting Attorney's Office
���si�i s chai�cifi aiz�endlnents to Articles IXA and Article XIX relatin_�;tcz
the Office of the Prosecuting Attoriley
Jake Delaplane, first Deputy Prosecuting Attorney, indicated he did receive
a response from the Chief of Police on the OPA's request for a proposed
Charter amendment which was one of the requests from the Charter
Commission back in November for the agencies to provide input. It is a
letter of April 23, 2012 from Chief Perry and concurs that the amendments
are necessary and would be in support of amending the County Charter with
sect to the flowers, duties and functions of the Office of the Prosecuting
Charter Review Commission.
Open Sessio n
April 23, 2012 Page 15
SUBJECT _ DISCUSSION AC TI(�N
._.____...._.._._....__. .Attorney. The proposed amendments and changes would increase
efficiency towards streamlining processes while making clear the tasks and
functions of the OPA. Mr. Delaplane referred to his testimony from
October that the set of proposed amendments on page 2 of the
communication that begin with"the prosecuting attorney may" followed by
A, B, C, and D was language taken directly from the language of the Charter
of the City and County of Honolulu. Mr. Delaplane then described what
brought this change about for the City and County of Honolulu. At that
time the Charter of the City and County of Honolulu pretty much reflected
what the County of KauaTs Charter reflects now which gives very basic
duties and functions to the Office of the Prosecuting Attorney to file
charges, to take cases to Grand Jury, to interact with the Police Department
and direct the Chief of Police to perform certain functions and do certain
investigations. Because the Charter language was so limited in scope that
their participation in helping pass this legislation to streamline the judicial.
process was improper under their Charter. In turn, they came up with the
Charter amendment which comes from H.R.S. Section 28-10.6. Under the
H.R.S., each County has a Prosecuting Attorney's Office, whether it is
appointed or elected, but they are delegated the powers of the Attorney
General who is the chief law enforcement officer of the State and delegates
his authority through the H.R.S. to each of the prosecuting attorneys in each
of the counties. The contention was because these powers belong to the
Attorney General and the Attorney General delegates his powers and duties
to the counties then logically the counties have the same powers and duties,
if they are delegated those duties. The court did not go along with that
which was the need for their Charter amendment. We may be in a position
in the future where clarity is needed as far as the powers, duties and
functions of the Prosecuting Attorney which is why we looked to this
specific language that was fully vetted in Honolulu.
Charter.Review Commission
Open Session
April 23, 2012 Page 16
SUBJECT DISCUSSION ACfI'ION
Mr. Nishida asked how the italicized parts related to moving/skipping the
district court into the circuit court. Mr. Delaplane said they actually don't.
The first part of his explanation was to show how Honolulu got into trouble
with their Charter being so limited in scope and that was what was being
talked about with direct filing to the circuit court.
Referring to the italicized portion..A, B, C, and D. Mr. Nishida said it
looked like it related not so much to prosecutorial but to expanding the
Prosecuting Attorney's Office into crime prevention, proposed legislative
changes as well as allowing them to receive funds without going through the
Administration and the County Council. Mr. Delaplane said that last part
does not do that in subsection D. This is not an attempt to circumvent
County Council's obligation to look at every grant expenditure and
application. We would receive through the same process we go through
now; it just makes it clearer that it is one of our functions to apply for and
receive grants and do all the activities under those grants—still approved by
the County Council and go through the same process.
Mr. TenBruggencate said his reading of the proposal, subsection C is
encompassed in B and the language of C is unnecessary and asked if there
would be in objection to the removal of C for simplicity and relist item D as
item C. Mr. Delaplane said that was a fair reading and the only issue he
might have is that was not something the wordsmiths in the City and County
of Honolulu carne up with, it is drawn from the H.R.S. and is tracking the
same thing as far as the powers, duties and functions of the Attorney
General.
Mr. Justus said lie wanted to hear the second portion of the proposal that
was submitted and thought the language submitted was a simplified way of
the issue re rardiiS1he Prosecuting Attorney's budget.
Charter Review Conu-mission
Open Session
April 23, 2012 Page 17
SUBJECT DISCUSSION ACTICJ
Mr. Delaplane said while it appears simplistic it took a lot of research
through the Charter and how to fix the issue of having to do the budget two
diff'erer°rt times, reporting to the Mayor first and then going to the Council
and the problem that arose from having one elected department head have
control over the budget of another elected department head actually does
cause problems. Overall, section 19.02 B seerned to be the easiest route to
do this with one shot and as few words as possible versus amending a lot of
different parts of the Charter. Since this is the section that requires the
Prosecutor's Office to submit that budget to the Mayor first before going to
the Council simply amending that language achieves the purpose we are
trying for.
Shaylene Iseri-Carvalho said the operations of the appointed department
heads are totally different from the Prosecuting Attorney's Office. We are
not part of what they call KCT Team which is the Kauai County Team so a
lot of the emails and items they discuss we are not privy to because our
office is an elected office and the core function is being in court or attending
meetings that deal specifically with law enforcement so it is a total separate
operational perspective. Even on the budget there were things such as
ernads that go out that we are not a part of the County Team. It makes
rational sense for the elected department to be separate and apart from the
Mayor's department. There is a separation between the appointed
depm-tui nt heads and our office as it currently exists because the priority of
our office simply focuses on law enforcement whereas the County Team
looks at all of the different agencies and they all meet on a regular basis
every week, which we have never been a part of.
M . Barela asked if there was a reason they did not attend the meetings and
was there a choice because that has not alwa s been the case. Ms. Iseri-
Charter Review Commission
Open Session
April 23, 2012 Page 18
SUBJECT DISCUSSION ACTION
Carvalho said it was for the last Administration as well. Because our
scheduling is dictated by the courts, we do not have control over our
operational schedules. Appointed department heads do have control over
their schedule and can set their meetings.
Gary lieu said the Administration would be more than pleased to have the
County Prosecutor attend those weekly meetings. She was correct that the
meetings are at a designated time of 9:00 a.m. every Monday and the
invitation was extended to the previous Prosecutor who, for whatever
reason,typically did not attend those meetings. The Water Department is
also in the same kind of boat where they are a semi-autonomous entity and
do not rely on the County General Fund for their budget and the Manager-
Chief Engineer, Mr. Craddick, has attended those meetings for the last year
or so and when he can't attend he sends his Deputy. We would be more
than happy to have the Office of the Prosecuting Attorney represented at
those meetings because there is a lot of information shared at those meetings
relative to the operations in general, budget and other global issues.
Wally Rezentes, Jr., Director of Finance, had concerns with this proposal in
that the Mayor and Mr. Rezentes have the responsibility to present a
balanced budget to the County Council annually. The relative sections are
7.05 F, 19.03, 19.02 B and 19.02 A. 19.02 A states that the proposed
annual bu(4�,ct ordinance, consisting gl'the operating and capital budgets
firr the ensuing fiscal year, shall be prepared by the director of`finance and
submitted by the mayor to they council, together with a budget message and
any proposed revenue measure, on or before the fifteenih day of'March of
each year. f'drefiftee>nth day of March falls on a Saturday and so on. Mr.
12eentes said his concern was if they do not include the Prosecuting
Office's budget in our proposal we will not be able to provide the County
Council with a balanced bucket.
Charter Review Commission
Open Session
April 23, 2012 Page 19
SUBJECT DISCUSSION
ACTION
Mr, Justus said this should be discussed as two separate agenda items. Mr.
TenBruggcncate said if they get on the ballot they probably ought,however,
to end up as a single item since they refer to a single piece of the Charter.
Chair Stack said his interpretation was to lump them together. Ms. Suzawa
said it would be two separate items so it would be two separate ballot
questions. Mr. Justus felt it important to separate the two issues because it
might be easy for the public to be okay with the Prosecuting Attorney's
Office having the legal standing to do what they already do but they may not
be okay with the budget side or vice-versa. It is important for the voters to
have the option to vote on either of these rather than lump them together in
one thing. Mr. Justus moved to bifurcate the Prosecuting
Attorney's proposal as two items. Ms. Suzawa
seconded the motion.
Ms. Suzawa asked Staff if it would not be two separate ballot questions
since it was two separate subjects. Attorney Winn stated that would be the
decision of the Commission. Ms. Suzawa asked if two separate questions
could be asked on the ballot or one question that encompasses both since it
is two separate subjects.
Mr. Justus said in the past they did do that because they did that when the 4
year term for the Mayor was approved and included term limits in one ballot
question. Mr.TenBruggencate moved to leave them together
but to approve the initial language that expands the
authority of the Prosecuting Attorney's as listed in
italics under itern 2 A, B, C, and D with no
Mr. TenBruggencate said he found the Director of Finance's argument changes and delete entirely the budgetary section,
compelling and the budgetary authority for both the income and the outgo
needs to be in the same hands. Mr. Nishida seconded the motion.
Charter Review Commission
Open Session
April 23, 2012 Page 20
SUBJECT DISCUSSION
ACTION
Mr. Justus pointed out there already was a motion with a second on the Mr. Justus withdrew his motion. Ms. Suzawa
Moor. withdrew her second to the motion.
Mr.Justus moved to amend Mr.TenBruggencate's
motion that the budgetary section be a separate
Attorney Winn reminded the Commissioner that he could not add another item to be discussed.
agenda item but he could discuss the issues however he wanted to but not as
a different agenda item. Mr. TenBruggencate withdrew his motion and
made a new motion specific to the powers and
authority(A though D)with the budgetary portion
to be taken up later. Mr. Justus seconded the
Chair Stack recapped the discussion to date regarding the powers and motion. Motion carried 7:0
budget of the Prosecuting Attorney to which Mr. TenBruggencate made a
motion that spoke to the powers and not the budgetary aspect. Mr. Nishida
said more so it denied the second part but Mr. Justus wanted to make that
decision separate. Mr. Justus moved to make the budget proposal a
separate ballot item. Mr. TenBruggencate
seconded the motion.
Mr. Justus withdrew his motion.
Ms.Suzawa moved to defer the budget proposal to
the next meeting. Mr.Justus seconded the,motion.
Ms. Suzawa said she did not have enough information to put this proposal.
on the ballot. The Prosecuting Attorney's Office seems to think there is a
need for this amendment but the Finance Director does not seem to agree
and the Commission needs to be more informed before it can be put on the
ballot. Roll.Call Vote: Barela--Aye;Guy--Aye;Justus-
_.
Aye, Stack Vie;Suzawa Ayc TcnBru cncatc
Charter Review Commission
Open Session
April 23,2012 Page 21
SUBJECT I DISCUSSION __ _ ACTION
—Nay; Nishida.-�ja�,)__
Motion to defer carried 5:2
CRC 2012-05 Memorandum dated 4110/12 frorn the Prosecuting Attorney;
Office .r o eosin charter anlerrdrtrer�ts to Article VIII relatin=to the Office
of the County AttgM!ey
Jake Delaplane noted that with the tight time constraints of the Commission,
the Office of the Prosecuting Attorney asked this item be deferred to a later
date for discussion as well as CRC 2012-06. Mr.Justus moved to defer CRC:`2012-05. Mr.Guy
seconded the motion. Motion carried 7:0
CRC 2012-06 Memorandum dated 4/10/12 from the prosecuting Attorney's _ -
Officeroposirr charter amendments to Article XI
relating to the Police
Iepar treat Mr. TenBruggencate moved to defer CRC 201 -
06. Ms. Suzawa seconded the motion. Motion
carried 7:0
Continuation of CRC 2012-002
Met Rapozo distributed copies of his proposed language for §7.05 which he
said was very simple, very straight t6rward and had put in the exceptions.
The proposal still needs to be drafted in Resolution farm and go though 2
full County Council meetings for 2 readings in addition to a public hearing.
Ms. Barela asked Mr. Rapozo how many departments this would affect in
addition to Fire, Water, Police, Prosecutor, and Planning. Mr. Rapozo
added Civil Service, Liquor, and Auditor. Asked what departments were
left Mr. Rapozo said Public Works, Parks —the departments that are
appointed directly by the Mayor.
Mr. TenBruggencate expressed concern once again having not seen the legal
Lurstification fir the action that the Administration took whether this
Charter Review Commission
Open Session
April 23, 2012 Page 22
SUBJECT DISCUSSION
ACTION
_._ ..._ ._. _ _ _
adequately addresses that question. This proposal does not respond at all to
the direct supervisory authority over the department head and can envision a
situation in which a legal opinion would be relying on other language such
as the Police Department, the Civil Service and Planning Department
sections of the Charter itself rather than on this section of the Charter.
Mr. Rapozo did not disagree but said the big misconception when this
started was what was left out and the first sentence of paragraph A except as
otherwise provided had caused a lot of concern or misinterpretation. If you
look at the Commission's Rules, the Chief's employment contract, there are
other references that pertain to who is the supervising authority but that was
completely omitted. This proposal clarifies that the direct supervision that
the Mayor had stated publicly that he had as the Chief Executive Officer he
would have in all of his administrative departments except those that are
elected or governed by a board or commission. Mr. Rapozo did affirm that
the County Council had seen the legal opinion from the County Attorney's
Office. Mr. Rapozo said lie inserted administrative departments into the
proposal which clearly excluded legislative or elected departments. Mr.
Rapozo again reiterated his thoughts on the timeline the Commission should
be working with for submitting ballot items to the County Clerk.
Chair Stack commented that he and the other Commissioners meet once a
month and none of them are attorneys. The Charter Commission is a
community service and the Commissioners are doing their level best. The
Commission is trying not to address the needs of individual factions but
what the Commission does here and in the future has to be within the
context of the Charter in how the County chooses to govern itself.
Ms. Suzawa questioned if part of°the Legislative Branch only encompassed
the Auditors. Mr. Rapozo said yes. Ms. Suzawa asked why not just use that
Charter Review Commission
Open Session
April 23, 2012 Page 23
SUBJECT DISCUSSION ACyTIC�N
_._____, _..._ _.. _... _ _ _
word. Mr. Rapozo said it did include everyone in the Legislative Branch
including the County Clerk, the Analyst and anyone within the Legislative
Branch which would be the Office of Council Services, the Office of
Elections and the County Auditor. Ms. Suzawa suggested saying the
Legislative Branch and omittingpar°t q/*which is confusing to the voter.
Mr. Justus asked if it would be correct to assume that if they were to take
this for a ballot question they could find out if it had legal potential by
submitting it for a legal review to determine if it would work at all.
Attorney Witco said yes; that was the way their Rules worked. Mr. Justus made the motion to approve the
language as a proposed amendment for legal
Mr. Guy said he would support moving the amendment forward. review. Ms. Suzawa seconded the motion.
Mr. TenBruggencate said while lie agrees with most of what was in the
proposal it goes fir beyond what they had been discussing and what the
agenda:item was. It extends this portion of the language into the Legislative
Branch which is entirely appropriate but the Commission has not had time
to think or talk about that and what the implications would be. It extends it
in ways that may or may not be salutary. Mr. TenBruggencate said he
would vote against it and did not think the Commission should proceed
until they had a real clear view of where they were going and what they
were trying to do. With all due respect to Mr. Rapozo, the Commission had
seen this proposal for about 7 minutes and lie would not be comfortable
moving forward with a Charter change based on 7 minutes discussion.
Mr. Justus understood the concern and asked if Mr. TenBruggencate would
be more satisfied if they removed any reference to those that are elected or
the Legislative Branch and just focused on governed by a Board or
Commission since that was directly the issue they had been talking about.
Charter Review Commission
Open Session
April 23, 2012 Page 24
SUBJECT DISCUSSION � ACTION
Mr. FenBruggencate said no and actually that was the best part. The
Legislative part is the part that heeds to be there. The ether part of the
Charter does not need to be changed. It might need to be changed based on
the legal opinion we have not seen and not having seen that opinion do not
know that the Commission can proceed. The Legislative part is compelling. Roll Call Vote: Barela-Nay; Guy-Aye; Justus
-Aye, Stack-Nay; Sur.awa--Aye;
TenBruggencate-- Nay; Nishida- Nay
Motion defeated 3:4
Mr. TenBruggencate moved to formally request
a copy of the legal opinion from the County
Attorney's Office as relates to the Mayors
powers and authority. Mr. Justus seconded the
motion. Motion carried 7:0
ES-2: Executive Session Minutes of March 19, 2012 Mr. TenBruggencate moved to approve the
Executive Session Minutes without discussion.
Mr. Justus seconded the motion. Motion carried
------ ___._. ______------_____ _._.� 7:0
Announcements Next Meeting: Monday, May 21 at 4:00 pm. Ms. B a r e I a announ ced she would be off island
on May 21. Mr. Justus said he would also be off
._........ .._. _ _. _.. �. . island on that date.
Adjournment Mr. Guy moved to adjourn the meeting at 6:31
p.m. Barela seconded the motion. Motion
carried 7:0
Submitted by: __._____- _..._ _ _._...__ .. Reviewed and Approved by;
Barbera. Davis, Support Clerk Patrick Stack, Chair
( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.
ARTICLE VII
MAYOR
Section 7 . 05. Powers, Duties and Functions . The mayor shall be
the chief executive officer of the county. He shall have the -power
to:
A. Except as otherwise provided, exercise direct supervision
over all departments and coordinate all administrative 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 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.
G. Sign instruments requiring execution by the county,
including deeds and other conveyances, except those which the
director of finance or other officer 4 is authorized by this
Charter, ordinance or resolution -to Sign.
4
H. P-resent messages or informa 4--Lon to the council which in
his op-inion are necessary or exped'4 ent .
T
In addil tion to the annual report, make periodic reports
informing the public as
to county policies, programs and
operations.
J. Approve or veto, ordinances and .resolutions pertaining to
eminent domain p-roceedings .
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
Count Council-Partial Distric rFour l istric hree At-La r I
-section M-1 Composition, There shall be a council of seven members [elected
at-large l. Three rate-rtbers Shall be elected at-lar`�y all registered voters in the
county, Each of the other four members shall reside in and shall be elected from
a separate council district teistered voters res:di irr that sca€ te council
district.
Section 3.03 Terms, The terms of office of councilmembers shall be[for two
years]two years fear district sets and four years for at-large sets beginning at
twelve o'clock meridan on the first working day in December following their
election. No person shall be elected to the office of coun ilmember for more
than [four consecutive two year terms]a Natal of eight years,
Section 3. ualiftcatitas.
A, To be eligible for the council, a person must be a
citizen of the United Mates and gust have been a duly qualified [elector]
registered voter of the county for at least two years immediately preceding his
or her thin candidacy a ors fir election.for appointment]. In addition those
candidates for the council who wish to r iresent one of'the four t2uncil districts
must.state which district they wish to re resent and that they have been a
ro istered s°oter cif that district for the recedin nine dais, Should a
council member move from or be removed front any of the seven council
positions from which that Pe rson was elected any replacement appointee must
meet all rettuirerttents of a caniiidate for that position.
B. Any[councilman] councilmember who removes hisor 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
prix-tarry°election of 1014.
B. The year 2021 and eve . tenth year thereafter shall be
rea or�iortmertt yearn
C. An initial council a ortionment commission shall
be cr nstituted on or before the f i t da,-,of A rii 2013. A council
reanoortionment commission shall be constituted on or before the first day,)fJuly
of�-ach reannortionment year or whenever re o io, m nt is re mired by court
order. The commission shall consist of seven members, "f he rnernters of the
cornmissi or shall e a Dinned by the r�ayur and cor?firrned by the co xncil.
The initial council a Porti onment commission shall be
CRU" 2011 - 17
rgsagnsible r*c.,,r designating thc2eo-�,,ra�)hic�)jjoundiqries of the council—districts
res-s —or—si—bl—e c r a o tionment and rcdistrictin of tf�ose districts.
f—r—th—le-s m-
'rhe commission shall elect a chair from 4mon-g its—members,
car cv iti the cog rnsssion shall be filled ira the same manner as for an
ori��inal a ointment. °I°he commission shall act by the rna`nrit� kite cif its
rr€ehershi and shall establish its own rocede , �` rnernber of the
reannortionment plan ado a)itegdg-abyLthe�comm�issio�n.
The commission shall be furnished all neces--, ri-Anit-A and secretarial
services. The mavor and the council shall a rolariate funds to enable the
commission to ca my out its duties.
D In effectin the initial apportionment and each subsequent
rea nt the cornmissicn shall bee >uiderl by and ccir I crith all
arinlicable Federal and State laws.
E. On or before February I of the year following a ntrnent. the
ment or reaociortionment
R Any rceistc-rcd voter may etition the roer court to
b mandam otherwise a�ro riale nt gins�, 0
� e he the a orti erso or er' rt� erf
s e r"'i'�n
e��rre��eor made i onm�cnor�rca ionrrre7
te r�'t � or to correct or ,error 0� ct an
their dL
pla n. or the court may take such other action to effectuate the puMores of this
section as it a deerxa a ro riate. �a`t `such etiticiri must be fited within fa
five Ca
G The commission's tenure shall end upon the filiniz of its
pla ."
(Deleted material is bracketed; new material is underlined)
2. Ballot Question 1:
Option A:
1) Effective 2014,shall foul,of the seven council members be elected by districts(North Shore,
Eastside, South Shore/Central, VVestside)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 partia"istricting of the council is approved, shaft council members elected by district serve two-
year terms and council members elected at-large serve four-year terms?
Option 8-
1) Effective 2014, shag four of the seven council members be elected by districts(North Shore,
Eastside, South Shore/CeMral,Wes tside)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 shag 2021 and every tenth year thereafter be a district
reapportionment year?
Ballot Question 2-
1) Shall the term of office for councilmetubers be limited to a total of eight yea. rs.,,
Subcommittee Report
On
CRC-2011-17
(Progosed Amendment for Council Partial-Districting)
Date & Location of Subcommittee Meeting:
Thursday, March the 2Z"",5:3OpnmatTionm's Restaurant, Lihue, H}
[Note: no County money orfunos were spent for this meeting]
Attending Commissioners:
Mrs. Carol Suzavva (Subcommittee [hair), Member
Mr. James N}shida,]r., 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 1u 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 byJonathan
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, '901 and twice proposed by Charter Commission ['96, '061), 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 bv Mr.Justus was tVbe discussed, it should bein 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 itwould.
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
ofa 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 tothe Commission the following four options as methods to
answer the reoccurring need of better responsiveness from the Council:
l\ Partial Districting of the Council (2roposal 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 Joyl
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 (proposaiLrom subcommittee)
Each town would have a group of citizens, either elected or appointed, that would form aboard
ar committee which would meet regularly tmdiscuss 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 mr Mayor orboth,
with possibly the requirement that either(or both)would be required to act in addressing the
issues the Board brings up. There is question asto what power the County has tocrestesuch
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 bwthe charter to have a "Regional [ornrnittee°,whereupon
each of the seven council members would either volunteer or be assigned to be the
representative for one of the seven °reQions" 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 tothe community what actions were taken by the regional committee
to address their issue. Additionally, each council person would be the point-person to vvhorn
citizens of each region would address their concerns to, be it by phone, email, mail, or
otherwise, between the regularly scheduled meetings. 0]rofte/s Suggestion: this amendment
could occur in Section 3.07, as "Sub-section G".](It was discussed also that it could be possible
tu combine this proposal with the Neighborhood Board option.>
Conclusion of Meeting:
Subcommittee ChairSuzavva asked K4r.Justus if he would be willing to write up the subcommittee's
proposal. Mr,Justus agreed. Meeting ended sometime after 8:O0pnn.
Subcommittee Report Drafted by Commissioner Justus
Approved B
Carol furomxz Subcommittee Chair
James Nishida.lc, 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. I
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
CRC 2011-17 c.
4 (3
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.
-4
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 maiority 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.
Q. 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 I 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?
OFFICE OF THE PROSECUTING ATTORNEY
COUNTY OF KAUAT STATE OF HAWAY1
3990 KAANA STREET, SUITE 210,LTHLYE, HI 96766
TEL (808)241-1888 FAX: (808)241-1-1'58
prosecutor�kauai.gov
Y01 w,
F 10%
Shaviene Iseri-Carvalho
Prosecuting Attorney:
Jake Delaplane Sam Jajich
First Deputy Prosecutin- Attomev Second Deputy ProseCLIfincy 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 Kauai 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.
(q) The county attorney shall not represent a county client ffthe representation ofthat
client will Be directly adverse to another county client, unless:
(1) The county attorney reasonably believes the representation will not adversely
,qf
kct the relationship with the other client, and
(2) Each client consents after consultation.
(b) The county attorney shall not represent a county client ff'the representation of that
client ma-v he material�v limited by the county, attorney's• responsibilities to another
county`client or to a third person, or to the county attorney,s own interests, unless.-
(1) The county attorney, reasonably believes the representation will not be adversely
of
,�ected, and
(2) The client consents alter consultation,
Deputy Prosecuting Attorneys:
Lisa R,Arin Melinda K.?,re,des Gan.,Nelson
fared Auna .1ohn 11.Murpliv Ramsev Rosq
Lance Kobashibawa -'Rebecca A,Vogt
An Epal("crortwuhl btiph7yer CRC 2 0 12-05
See.-- Alandatoty Disclosure and Eng-agentent 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 Representation,
(b) The county attorney shall disclose to the client the conflict or potential for conflict at
the outset a/"each instance q1'representation. The disclosure shall anticipate all
reasonably possible 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 qffected 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 flies established through a method by the procurement
law. Independent counsel fees shall be paid from the special counsel appropriation
in the budget of office of the county attorney. ff'the juinds in the special counsel
appropriation are insufficient, fees= will be paid front the funds designated by, the
countv council.
(e) The county, attorneys 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
termination, The termination process shall be initiated by the County Council bypassing a
resolution ordering the .1,loyor to terminate the Coun y Attorney. Furthermore, the County
Council shall transmit a letter to the Office qI'Disciplinary Counsel to disbar the County,
A nornel".
Sec.— -— Aro Conflict with Federal or State Law.
Alothing in this Article shall be interpreted or all lied so as to create arty,requirement,power or
duty in con1flict with any.federal or state la,,+,'
SE-CTION 3, Severability. c, or the application thereof to any
ffany provision of Artich
person or circumstance is held invalid the invalidity does not afl ct other provisions or
applications a'fthe Article which can be given effect without the invalid provision or application,
and to this end the provisions of this Article are severable,
Iahalo,
r
S ayle e Iseri-Carvalho
Prosecuting Attorney
ARTICLE VIII
COUNTY ATTORNEY
Section 8 . 01 . Organ-iza-r-i - shah be an office of +-.-.e county
ion. There off4
attorney which shall be headed by the county attorney.
Section 8 . 02 . Appointment and Removal. The county attorney shall
be appointed and may be removed by the mayor, with the approval of
the council .
Section 8 . 03. Qualifications . The county attorney shall be an
attorney licensed to practice and in good standing before the
supreme court of the State of Hawaii and shall have engaged in the
practice of law in the State for at least three years .
Section 8 . 04 . Powers, Duties and Functions. The county attorney
shall be the chief legal adviser and legal representative of all
agencies, including the council, and of all officers and employees
in matters relating to their official powers and duties, and he
shall represent the county in all legal proceedings. He shall
perform all other services incident to his office as may be
required by law.
Section 8 . 05. Deputy County Attorneys . The county attorney shall
have the power to appoint such deputy county attorneys and
necessary staff as shall be authorized by the council and within
the appropriation made therefor. Such deputies shall serve at the
pleasure of the county attorney.
Section 8 . 06. Special Counsel. The council may, by vote of five
members, authorize the employment of special counsel for any
special matter necessitating such employment . Any such
authorization shall specify the compensation, if any, to be raid
for said services.
Section 8 . 07 . Service of Legal Process . Legal process against the
county shall be served upon the county attornev or any of his
deputies.
Suggested Changes to County Attorney (Article V|U)from Community input:
8,0Z-
Appointment and Removal-Both the Mayor and the Council shall have the po v�j��
and remove
with the vote of 213 avaroval from the Council, Also, the Council May
Attornev with a vote of two-thirds mgjority, wi�h�the a �royql of Lhg Mayor. If the L4qygr does not
ajoarove either the c000intment or the removal of the Countv Attornev, the Council haLthe 2ower to
override M
8.U3 - -shaU have engaged in the practice of law inthe State oLHowaii for at least#*e
Lh{ee years.
U.O4-Powers, Duties, and Functions-He or she shall ensure that the county, in all its Oarts is
in accordance with a//county, state, and federal laws.
8,__- (Concept is that there will bea mediation team for the County. All lawsuits against
the county shall first be given the option of employing mediation to resolve issues. if the issues are not
resolved, then it shall gotocourt)
8.__-Yearly Review-The County Attornev shall be subiect to the reap1jointmenL2rocess(exactly one
shall on1v be recavointed with a two-thirds mciarity ooproval vote from the Coun!����y
the Mavor. Durina thisjorocess, the Council, in the P �sence of the Mayor and Prosecutinq Attorney,
shall review the actions of the County Attorney in order to determine whether or not he or she has
avorooriatelv served their function, If the Countv Attornev is not rea000inted, he or she shall
/the next CoqqtZAttgMgy��2pqLnLted,
the First Deputv County AttoQLney shall serve
&___Special Review-If the CountvAttornev has taken an action or given an ooi ni.on or counsel that is
either illeaot or contrary to law, it shall irrrmediotelv require a special review bv the Counc,
joresence of the Mavor and the Prosecutina Attornev, for the removal oLthe County Attorney.
������ �81 �_��� ��
~^��*� �~u^��-uo���
OFFICE OF THE PROSECUTING ATTORNEY
COUNTY OF KAUAI, STATE OF HAWAII
3990 KAANA STREET, SUITE 2 1 O� LTHU'L F11 96766
TEL: (808)'241-1888 FAX: (80811241-1758
prosecutor t�kauai,gov
T FNS
Shaylene Iserf-Carvalloo
Prosecuting AttorneN
Jake Delaplane Sam Jajich
First Deputy Prosecuting Attornex Second Deputy Prosecuting Attorwy
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';l 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,
Shaylene Iseri-Carvalho
Prosecuting Attorney
CRC 2012-06
Deputy Prosecutin g Attorneys:
0
Lisa R Ahri klefinde,K,Nmendes Gary Nelson
'lared Aima fo;-n H. Ourphv Rarnsev Ross
Lance,Kobashigalova Rebecca A.'Vogt
An FiNal Opporhmity hitpoyer
ARTICLE XX
POLICE DEPART14ENT
Section 11 . 01 . Organization. There shall be a police department
consisting of a police commission, -a chief of poilce and the
necessary staff. (l-mended 1984)
Section 11 . 02 . Police Commission. The police commission shall
consist of seven members appointed by the mayor with the approval
of the council. The commission shall hold regular public meetings
at a designated time and place. (A-mended 1984, 22006)
Section 11 . 03 . 'General Powers of - the Commission. The police
commission shall:
A. Adopt such rules as it may consider necessary for the
conduct of its business and the regulations of matters relating to
the goals and aims of the department .
B. Review the annual budget prepared by the chief of police
and may make recommendations thereon to the mayor.
C. Receive, consider and investigate charges brought by the
public against the conduct of the department or any of its members
and submit a written report of its findings to the chief of police
within ninety days .
D. Refer all matters relating to administration of the
department to the chief of police.
E. Adopt such rules to regulate political activities of the
members of the police department. (Amended 1984 )
Section 11. 04 . Chief of Police. The chief of police shall be
appointed by the police commission. He may be removed by the
police commission only after being given a written statement of
the charges against him and a hearing before the commission. The
chief of police shall have had a minimum of five years of training
and experience in 'Law enforcement, at ileast 'three years of which
shall be in a responsible, administrative capacity. He shall make
such reports from time to time as the commission shall require,
and sha.1 -1 annually make a report to the commission of the state of
affairs and condition of the police department . (Amended 1984)
Section 11 . 05 . Powers, Duties and Functions. The chief of police
shal 1 be the administrative strative head of the co lice depar-men- and
shad:
A. Be responsible for the preservation of the public peace,
prevention of crime, detection and arrest- of offenders against the
law, preservation of life, protection of the rights of persons and
property, and enforcement and prevention or violations of law.
4
B. Train, equip, maintain and supervise the force of police
officers .
(I
Be responsible traffic" ble for C safety and traffic safety
-L
education.
D. Serve process both in civil and criminal proceedings .
E. Perform such other duties as may be required by law or as
may be assigned by the commission.
F. Promulgate rules and regulations necessary for the
organization and internal administration of the department.
(Amended 1984)
Section 11 . 06. -Discipline and Removal . The dismissal, suspension,
or demotion of any police officer or employee in the police
department shall be under procedures set forth by civil service
laws and regulations . (Amended 1984)
Section 11 . 07 Appeals . Appeals from personnel actions shall be in
accordance with the applicable collective bargaining agreement
executed pursuant to the provisions presently contained in
Chapters 76 and 89 or the Hawaii Revised Statues . (A-mended 1984)
CRC 2012-06 a
OFFICE OF THE PROSECUTING ATTORNEY
COUNTY OF KAUAI, STATE OF HAWAII
3990 KAANA STREET. SUITE 21 LIHU'E, HI 96766
TEL: FAX- (8081241-1758
prosecutorritkauai.,gov
Shavlene Jeri-Carvalho
I'rosecutino Attorney
Jake Delaplane Sam Jajich
First Deputy Prosecuting Attorney Second Deputy Prosecuting Attorney
2. Pro nosed Revisions to other Sections of the Charter as it relates to the autonpmy
and hierarchical structure of the OPA within the framework of the County
Govern men
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 19.0213 be amended to
read as follows:
CRC 2012-07
Deputy Prosecuting Attorneys:
Lisa R,Ann Melinda K."via ndeq Gary Nelson
Jared Aura fohn H,Mtirphv lams=s ?"cuss
Lance Kobashigawa Rebecca A,Vogt
An hmal 0pportunity Finployer
On or before the date specified by the mayor, the appointed department heads of
each county department, office or agency shall furnish the mayor with estim aces 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 OP A 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 OP A may submit additional proposed language for
discussion at the April 23, 2012 meeting in a separate attachment.
Mahalo,
Shaylene Iseri-Carvalho
Prosecuting Attorney
ARTICLE =
FINANCIAL PROCEDURES
Section 19. 01. Fiscal Year. The fiscal year shall begin on the
first day of July and end on the thirtieth day of June of the
succeeding year. (,Amended 19922)
Section 19 . 02 . The Proposed Annual Budget ordinance.
A. The proposed annual budget ordinance, consisting of the
operating and capital budgets for the ensuing fiscal -,,,ear, shall
be prepared by the director of finance and submitted by the mayor
to the tog
,councilether with a budget message and any proposed
council, -
revenue measure, on or before the fifteenth day of March of each
year. 'If the fifteenth day of March falls on a Saturday, Sunday,
or legal holiday, the proposed annual budget ordinance shall be
submitted on the prior working day.
on or before May eighth of each year, the mayor may submit
one communication to the council which suggests modifications to
the proposed annual budget ordinance. The communication shall
describe the mayor' s suggested modifications to the proposed
annual budget and the reasoning -justifying such modifications .
(Amended 1980, 1992)
B. On or before the date specified by the mayor, the head of
each county department, office or agency shall furnish the mayor
with estimates for the ensuing fiscal year covering the revenues
and expenditures of the department, office or agency, together
with such other information as the mayor may reopestt .
Section 19 . 03 . The proposed and adopted annual budget ordinance
shall be a balanced budget, the total expenditures and
appropriations shall not exceed the estimated revenues and other
resources . (Amended 19921
Section 19 . 04 . The operating budget shall include salaries,
materials and supplies, including equipment and fixtures,
necessary for the upkeep, maintenance and operation of the
departmental or agency -functions and other expenses incident to
the operational requirements of the department or agency,
Sect-ion 19 . 05 .
A. The capital budget shall reflect and fund the capital
Proaram 4L,--o be undertaken during the ensuing fiscal year from
current revenues; provided, however, that any project or projects
to be 'financed by bond fund proceeds to be undertaken during the
fiscal year shall be included and reflected as part of the capital
program.
B. Amiendments to the capita-1 budget shall constitute and be
effective to amend the capital program. (Amended 1992)
Section 19 . 06 . budget Message. The mayor' s budget message shall
explain the budget in fiscal terms and in terms of work to be
done. It shall outline the -proposed financial policies of the
county for the ensuing fiscal year and describe the most important
features of the budget plan. It shall 4 ndicate any major changes
_L L_ i
in financial policies and in expenditures, appropriat ions and
revenues as compared with the fiscal year currently ending, and
shall set forth the reasons for the changes.
Section 19 . 07 . Consideration and Adoption by Council .
A. Upon receipt of the proposed annual budget, the Council
shall immediately publish a notice in a newspaper of creneral
circulation in the county, setting forth (1) a summary of the
estimated revenues, including any new sources of revenues, and
expenditures; (2) that copies of the budget are available at the
office of the county clerk; (3) the date, time and place at which
the council will commence its public hearings upon the proposed
budget, which shall not be less than ten days after the date of
the publication of such notice.
Upon receipt of the mayor' s communication which suggests
modifications to the proposed annual budget ordinance, the council
shall hold a public hearing on the mayor' s communication
suggesting modifications to the proposed annual budget ordinance.
The public hearing shall comply with the provisions of Chapter 92,
Hawaii Revised Statutes, as amended. After the public hearing and
before final reading of the proposed annual budget ordinance, the
council shall approve, deny, or receive the suggested
modifications in the mayor' s communication.
Upon the conclusion of the hearings, the council may reduce
any item or items in the mayor's proposed budget by a majority
vote and may increase any item or items therein or add new items
thereto by an affirmative vote of two-thirds of the entire
membership. The council shall pass on final reading the annual
budget ordinance on or before the seventh day of June of the
fiscal year currently ending. Tf final reading is not taken on or
prior to such day, the annual budget ordinance as submitted by the
mayor on or before March 15 shall be deemed to have been enacted
as the budget for the ensuing fiscal year.
B. Amendments to the adopted annual budget ordinance may be
submitted by the mayor, unless otherwise provided, and considered
by the council under the same procedures prescribed in Section
19 . 07A for the enactment of the operating budget ordinance, but no
amendment shall increase the aggregate of authorized expenditures
to any amount greater than the estimate of revenues for the fiscal
year. (Amended 1992)
Section 19 . 08 . Administration and Enforcement of the Annual
Budget
ordinance.
A. The enactment- of the annual budget ordinance shall
constitute an appropriation of the sums specified therein for the
purposes and from the funds indicated. Such appropriation shall be
considered valid only for the fiscal year for which made, and any
-oar', of such appropriation which is not encumbered expended
or exended
shall lapse at the end of the fiscal year, except that
appropriations to the fund established by paragraph C of section
19 . 15 shall not lapse, but shall remain in the fund, accumulating
from year-to-year. Agencies authorized to make expenditures under
the annual budget ordinance may proceed without other authority
from the council to incur obligations or make expenditures for
proper purposes to the extent that the moneys are available and as
allotted.
B. Immediately following the enactment of the annual budget
ordinance, the heads of all agencies shall submit to the director
of finance schedules showing the expenditures anticipated for each
quarter of the fiscal year.
C. The approval c-Iff an expenditure schedule by the mayor shall
Constitute a budgetary allotment which shall, unless a revision
thereof is approved by the mayor, be binding upon such agencies
and the director of finance shall approve or Issue no requisition,
purchase order, voucher or warrant that is not in accordance with
such allotment .
D. The allotment herein provided may be altered at any time
by the mayor. The mayor shall direct appropriate revisions in
allotments to keep expenditures within the revenues received or
anticipated.
E. An- part of an allotment which is not expended or
I -
encumbered shall be deemed reallotted for the next allotment
period.
F. The mayor may at any time transfer an unencumbered
appropriation balance or portion thereof within a division or
between divisions in the same department . Transfers between
departments, boards or commissions shall be made only by the
council by ordinance adopted pursuant to Section 19 . 075. upon the
recommendations of the mayor. (Amended 1992 , 1996, 2002)
2012 CHARTER AMENDMENTS
INITIATIVE AND
FINDINGS AND PURPOSE:THE CHARTER COMMISSION FINDS THAT SECTION 22.03 OF ARTiCLE
XXII OF THE KAUAI COUNT Y CHARTER NEEDS CLARIFICATION WITH REGARD TO SUBMISSION
REQUIREMENTS OF INITIATIVE AND REFERENDUM PETITIONS.THE COMMISSION ALSO FINDS
THAT THE WORDS"EUG0LE"AND°PRE[ED|NG^ !N SUBSECTION 22,O3C ARE AMBIGUOUS AND
CONFUSING.THE PURPOSE OF THIS AMENDMENT IS TO CLARIFY THAT INITIATIVE AND
REFERENDUM PETITIONS MUST GE SIGNED BY REGISTERED VOTERS COMPRISING A CERTAIN
PERCENTAGE OF VOTERS REGISTERED|N THE LAST GENERAL ELECTION,
BALLOT QUESTION:SHOULD THE REQUIREMENTS FOR SUBMISSION QPAN INITIATIVE OR
REFERENDUM PETITION BE AMENDED TO CLARIFY THAT SUCH PETITIONS MUST BE SIGNED BY
REGISTERED VOTERS COMPRISING A CERTAIN PERCENTAGE�DF VOTERS REGISTERED|NTHE
LAST GENERAL ELECTION?
CHARTER AMENDMENTS(CRC 2qjL-_05�
FINDINGS AND PURPOSE:THE CHARTER COMMISSION FINDS THAT SECTION 24,01 OF ARTICLE
XXIV OF THE KAUAI COUNTY CHARTER NEEDS CLARIFICATION WITH REGARD TO INITIATING
AMENDMENTS TO THE CHARTER OF THE COUNTY OF KAUAI,THE COMMISSION ALSO FINDS
THAT THE CLAUSE"APPARENTLY 5ENU|NE~ |W SUBSECTION 24,Ol|S AMBIGUOUS AND
CONFUSING,THE PURPOSE OF THIS AMENDMENT|6TO CLARIFY THAT PETITIONS FOR
INITIATING AMENDMENTS TO THE CHARTER OF THE COUNTY OF KAUAI MUST CONTAIN VALID
SIGNATURES OF REGISTERED VOTERS.
BALLOT QUESTION:SHOULD THE REQUIREMENTS FOR INITIATING AMENDMENTS T0THE
KAUAI COUNTY CHARTER BE AMENDED TO CLARIFY THAT AMENDMENTS MAY BE INITIATED BY
PETITION CONTAINING VALID SIGNATURES OF REGISTERED VOTERS COMPRISING A CERTAIN
PERCENTAGE"OF VOTERS REGISTERED|N THE LAST GENERAL ELECTION?
COUNTY BOARDS AND COMMISSIONS MEMBER TERMS(CRC 2011-_lll
BALLOT QUESTION:SHOULD A COUNTY BOARD OR COMMISSION MEMBER WHOSE TERM IS
ENDING BE ALLOWED TO SERVE ON A DIFFERENT COUNTY BOARD OR COMMISSION WITHOUT
BEING REQUIRED TO WAIT ONE YEAR?
FINDINGS AND PURPOSE:THE CON1N1|80N FINDS THAT THE CURRENT PROVISIONS OFARTICLE
IX OF THE KAUAI COUNTY CHARTER RELATING-10 THE POWERS,DUTIES AND FUNCTIONS OF
CRC -20 12-08
THE OFFICE OF THE PROSECUTING ATTORNEY K]PAV DOES NOT CLEARLY AND ACCURATELY
REFLECT THE OPERATIONS OF THE ORA WHICH NOT ONLY ENCOMPASS REPRESENTATION OF
THE STATE AND COUNTY|N CRIMINAL PROSECUTIONS BUT ALSO AN ENDURING COMMITMENT
TO THE COMMUNITY TO EDUCATE CITIZENS ON CRIME PREVENTION STRATEGIES AS WELL AS
ACTIVELY ADVOCATE FOR VICTIMS'RIGHTS,THE PURPOSE OF THIS AMENDMENT IS TO AMEND
that the officewil!assist avzens to avoid lixeng
ARTICLE |X0F THE CHARTER SQ THAT[T CLEARLY AND ACCURATELY REFLECTS THE WELL
�
--
ESTABLISHED PRACTICES OF THE OPA.
BALLOT0WESOOm: SHOULD THE OFFICE OF THE PROSECUTING ATTORNEY BE EMPOWERED TO . CoMnVnt[CHS41'.East,,subsection of tire
proposed rew nection can be a separate
1) DEVELOP AND PROVIDE CRIME AWARENESS AND PREVENTION PROGRAMS FOR AND TO THE amendment.Voters cannot pick and cractse which
ones they want.A111 or nothlrig_Also,has anyone
COMMUNITY,2) RESEARCH, EVALUATE AND MAKE RECOMMENDATIONS REGARDING CRIME,
checked if these activities are permitted/authosized
[R|��EPREVENTIOmANDTHECK|[W|NAL]UST|C£SYSTEK8,4ND3)SU0ECTTDAPPL|[AGLE |
LAW, RECEIVE AND EXPEND FUNDS FOR THESE PURPOSES" ----------
FINDINGS AND PURPOSE:THE COMMISSION FINDS TH4TSE{T|ON7.O3"DF ARTICLE VII OFTHE -----------------
charrere
KAUAI COUNTY CHARTER|S SEVERELY OUTDATED,THE PURPOSE OF THIS AMENDMENT!ST0
UPDATE THIS SECTION By CONFIRMING THAT THE MAYOR'S COMPENSATION SHALL BE
ESTABLISHED BY THE SALARY COMMISSION IN ACCORDANCE WITH ARTICLE XXIX OF THE
CHARTER,
BALLOT QUESTION:SHOULD SECTION 7.USOF THE ARTICLE VII OF THE KAUAI COUNTY CHARTER
DE AMENDED TO STATE THAT THE MAYOR'S COMPENSATION SHALL BE ESTABLISHED BvTHE
SALARY COMMISSION|N ACCORDANCE WITH ARTICLE XNXOF THE CHARTER?
GENERAL ~^'' |
FINDINGS AND PURPOSE:THE COMMISSION FINDS THAT THE DEFINITION OF THE TERM
"OFRCER")N ARTICLE XX|UOF THE KAUAI COUNTY CHARTER SHOULD BE AMENDED AND
CLARIFIED,THE PURPOSE OF THIS AMENDMENT IS TD EXPAND THE DEFINITION Op THE TERM
"OFFICER'TO INCLUDE THE KAUAI COUNTY PROSECUTING ATTORNEY AND TO CLARIFY THAT
THE TERM"OFF10ER" INCLUDES DEPARTMENT HEADS AND DEPUTIES APPOINTED BYSUCH
DEPARTMENT HEADS WHO ARE EXCLUDED FROM THE POSITION CLASSIFICATION PLAN
DESCRIBED|N CHAPTER 7hDF THE HAWAII REVISED STATUTES,
BALLOT QUESTION'SHOULD THE KAUAI COUNTY PROSECUTING ATTORNEY BE INCLUDED AS AN
OFFICER OF THE COUNTY, AND SHOULD APPOINTED ADMINISTRATIVE HEADS OF ANY COUNTY
DEPARTMENT OR AGENCY AND DEPUTIES APPOINTED BY SUCH ADMINISTRATIVE HEADS WHO
ARE NOT PART OF THE CIVIL SERVICE SYSTEM,ALSO ME INCLUDED AS OFFICERS OF THE
COUNTY?
CRC 20112-08
SALARY COM MISSION CRC 1 } } Comment[CH S7)*ire are �d possiWy
three substantive amendment„to the draft,(rio^
sure if there are substamlve riffereme-between.
FINDINGS AND PURPOSE;THE COMMISSION FINDS THAT 1)ARTICLE XXIX OF THE KAUAI
Officers and e nplovee e'-Couripy Code vs #qe rs
COUNTY CHARTER SHOULD BE AMENDED TO CLARIFY THAT THE SALARY COMMISSION r 23 � � a. ;.� �c,� ����s�t��
and not the ovterz?May have to separate ties--
ESTABLISHES MAXIMUM,SALARIES FOR ALL ELECTED AND APPOINTED COUNTY OFFICERS,2) "t d am m ments.
THERE IS NO LEGAL..AUTHORITY TO PERMIT AN ELECTED COUNTY OFFICER TO ACCEPT A SALARY nt[CHS8 F_on-,S, tl ma es
LOWER THAN THE MAXIMUM ESTABLISHED BY THE SALARY COMMISSION OR EVEN FOREGO A COrna�t ClF � n e Lanz e aia;y
nor m'sion's a,a. nt<?so its a ft-te r, re.
SALARY,AND S}SECTION 29.05 OF ARTICLE XXIX WHICH WAS DESIGNED TO DELAY SALARY _ _
INCREASES AND PROVIDE A WAITING PERIOD BEFORE A SALARY CHANCE BECAME EFFECTIVE
SO THAT COUNCIL MEMBERS COULD NOT INCREASE THEIR OWN SALARIES WHILE IN OFFICE IS
NO LONGER NECESSARY,THE COMMISSION FURTHER FINDS THAT ELECTED OFFICIALS SHOULD
BE PERMITTED TO ACCEPT A SALARY LOWER THAN THE MAXIMUM ESTABLISHED BY THE
SALARY COMMISSION.THE PURPOSE OF THIS AMENDMENT IS TO CLARIFY THAT THE SALARY
COMMISSION ESTABLISHES MAXIMUM SALARIES,ALLOW ELECTED OFFICERS TO ACCEPT
SALARIES LOWER THAN THE MAXIMUM ESTABLISHED BY THE SALARY COMMISSION AND
ELIMINATE ANY WAITING PERIOD BEFORE ANY SALARY CHANGES BECOME EFFECTIVE,
BALLOT QUESTION: SHOULD THE KAUAI COUNTY CHARTER BE AMENDED TO CLARIFY THAT THE
SALARY COMMISSION ESTABLISHES MAXIMUM SALARIES,ALLOW FOR ELECTED OFFICERS TO
ACCEPT SALARIES LOWER THAN THE MAXIMUM ESTABLISHED BY THE SALARY COMMISSION
AND ELIMINATE ANY WAITING PERIOD BEFORE ANY SALARY CHANGES BECOME EFFECTIVE,
CRC 2012-0
An Amendment Relating to Submission Requirements for Initiative and
Referendum Petitions.
Findings and Purpose.
Charter Amendment.
Article XXII, Section 22.03 of the Kauai County Charter shall be amended to read as
follows:
ARTICLE XXII
INITIATIVE AND REFERENDUM
"Section 22.03. Submission Requirement.
A. Voters seeking to propose an ordinance by initiative shall submit an
initiative petition addressed to the council and containing the full text of the
proposed ordinance. The initiative petition shall be filed with the clerk of the
council at least ninety-six (96) hours prior to any regular council committee meeting.
B. Voters seeking referendum of an ordinance shall submit a referendum
petition addressed to the council, identifying the particular ordinance and
requesting that it be either repealed or referred to the voters of the county.
C. Each initiative or each referendum petition must be signed by registered
voters comprising not less than twenty percent (20%) of the number of [eligible]
voters registered in the last [preceding] general election.
D. If an initiative or referendum measure is to be placed on the ballot in a
general election, the initiative and referendum petitions must be submitted not less
than one hundred twenty (120) calendar days prior to the day scheduled for the
general election in the county.
Draft: 3-30-11 (Sec.22.03—Initiative and Referendum)
CRC 2011-04
04-
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
1/24/11—introduced by Jan TenBruggencate
5/2/11—legal review complete;ballot question pending
Draft: 3-30-11 (Sec.22.03—Initiative and Referendum)
CRC 2011-04
An Amendment Relating to Initiation of Charter Amendments.
Findings and Purpose.
Charter Amendment,
Article XXIV, Section 24.01 of the Kauai County Charter shall be amended to read as
follows:
"ARTICLE XXIV
CHARTER AMENDMENT
Section 24.01. Initiation of Amendments. Amendments to this charter may be
initiated only in the following manner:
A. By resolution of the council adopted after two readings on separate days
and passed by a vote of five or more members of the council.
B. By petition presented to the council, signed by registered voters
comprising not less than five percent (5%) of the number of voters registered in the
last general election, setting forth the proposed amendments. Such petitions shall
designate and authorize not less than three nor more than five of the signers
thereto to approve any alteration or change in the form or language or any
restatement of the text of the proposed amendments which may be made by the
county attorney.
Upon filing of such petition with the council, the county clerk shall examine it to see
whether it contains a sufficient number of [apparently genuine] yghjd signatures of
registered voters."
Note: New charter material is underscored.
Ballot Question.
Draft: 3-30-11 (Sec.24.01--Charter Petitions)
1— CRC 2011-05
1/24/11—introduced by Jan TenBruggencate
5/2/11—legal review complete;ballot question pending
Draft- 3-30-11 (Sec.24,01—Charter Petitions)
SRC 2011-05
w � _
Proposing A Charter Amendment to Section 23.02 (H) Relating to
County Board and Commission Member Terms.
Findings and Purpose.
The Commission finds that County board and commission members are prohibited from
serving more than two consecutive terms on the same or different board or commission
unless they take a one year break from serving.
This restriction discourages qualified individuals from continuing to volunteer and use their
acquired experience and knowledge in other areas of interest that may be beneficial to the
County.
The purpose of this amendment is to allow a County board or commission member to
continue serving on a different board or commission without the need to take a one year
break in service.
Charter Amendment.
Section 23.02 H of the Kaua'i County Charter is amended to read as follows:
ARTICLE XXIII
GENERAL PROVISIONS
Section 23.02 Boards and Commissions.
H. No member of any Count board or commission shall be eligible for
more than two consecutive terms on the same board or commission [or on two
different boards or commissions of the county]. No person shall be eligible to
serve on two different County boards or commissions at the same time. After
the expiration of two consecutive terms on a board or commission, a member [no
person] shall not be eligible for [appointment] reappointment to [any] the same
[county] board or commission until one year has elapsed after such service. Any
partial term of more than two years shall be considered a term as used herein.
Note: Charter material to be repealed is bracketed. New charter material is underscored.
Ballot Question.
10/16/11—Review for legality and compliance by County Attorney Office
1'I0/11—Review received from County Attorney
CRC 2011-11
Proposing A Charter Amendment to Section 23.02 (H) Relating to
County Board and Commission Member Terms.
Findings and Purpose.
The Commission finds that County board and commission members are prohibited from
serving more than two consecutive terms on the same or different board or commission
unless they take a one year break from serving.
This restriction discourages qualified individuals from continuing to volunteer and use their
acquired experience and knowledge in other areas of interest that may be beneficial to the
County.
The purpose of this amendment is to allow a County board or commission member to
continue serving on a different board or commission without the need to take a one year
break in service.
Charter Amendment.
Section 23.02 H of the Kauai County Charter is amended to read as follows:
ARTICLE XXIII
GENERAL PROVISIONS
Section 23.02 Boards and Commissions.
H. No member of any County board or commission shall be eligible for
more than two consecutive terms on the same board or commission [or on two
different boards or commissions of the county]. No person shall be eligible to
serve on two different County boards or commissions at the same time. After
the expiration of two consecutive terms on a board or commission, a member [no
person] shall not be eligible for [appointment] reappointment to [any] the same
[county] board or commission until one year has elapsed after such service. Any
partial term of more than two years shall be considered a term as used herein.
Note: Charter material to be repealed is bracketed. New charter material is underscored.
Ballot Question.
101}6,'11—Review for legality and compliance by County Attorney Office
I I/10/11—Review received from County Attorney
CRC 2011-11
Proposing A Charter Amendment to Section 23.02 (H) Relating to
County Board and Commission Member Terms.
Findings and Purpose.
The Commission finds that County board and commission members are prohibited from
serving more than two consecutive terms on the same or different board or commission
unless they take a one year break from serving.
This restriction discourages qualified individuals from continuing to volunteer and use their
acquired experience and knowledge in other areas of interest that may be beneficial to the
County.
The purpose of this amendment is to allow a County board or commission member to
continue serving on a different board or commission without the need to take a one year
break in service.
Charter Amendment.
Section 23.02 H of the Kaua'i County Charter is amended to read as follows:
ARTICLE XXIII
GENERAL PROVISIONS
Section 23.02 Boards and Commissions.
H. No member of any County board or commission shall be eligible for
more than two consecutive terms on the same board or commission [or on two
different boards or commissions of the county]. No person shall be eligible to
serve on two different County boards or commissions at the same time. After
the expiration of two consecutive terms on a board or commission, a member [no
person] shall not be eligible for [appointment] reappointment to [any] the same
[county] board or commission until one year has elapsed after such service. Any
partial term of more than two years shall be considered a term as used herein.
Note: Charter material to be repealed is bracketed. New charter material is underscored.
Ballot Question.
10/16/11—Review for legality and compliance by County Attorney Office
1 1/10/11—Review received from County Attorney
CRC 2011-11
Proposing A Charter Amendment to Section 23.02 (H) Relating to
County Board and Commission Member Terms.
Findings and Purpose.
The Commission finds that County board and commission members are prohibited from
serving more than two consecutive terms on the same or different board or commission
unless they take a one year break from serving.
This restriction discourages qualified individuals from continuing to volunteer and use their
acquired experience and knowledge in other areas of interest that may be beneficial to the
County.
The purpose of this amendment is to allow a County board or commission member to
continue serving on a different board or commission without the need to take a one year
break in service.
Charter Amendment.
Section 23.02 H of the Kaua'i County Charter is amended to read as follows:
ARTICLE XXIII
GENERAL PROVISIONS
Section 23.02 Boards and Commissions.
H. No member of any Count board or commission shall be eligible for
more than two consecutive terms on the same board or commission [or on two
different boards or commissions of the county]. No person shall be eligible to
serve on two different County boards or commissions at the same time. After
the expiration of two consecutive terms on a board or commission, a member [no
person] shall not be eligible for [appointment] reappointment to [any] the same
[county] board or commission until one year has elapsed after such service. Any
partial term of more than two years shall be considered a term as used herein.
Note: Charter material to be repealed is bracketed. New charter material is underscored.
Ballot Question.
I01,`16111—Review for legality and compliance by County Attorney Office
I I/10/11—Review received from County Attorney
CRC 2011-11
0 1
OFFICE OF THE PROSECUTING ATTORNEY
COUNTY OF KAUAI, STATE OF HAW'AI'I
3990 KAANA STREET, SUITE 210. LTHU'E, ITT 96766
TEL: (808)241-1888 FAX: (808)241-1758
prosccutorig!kauai,goy
OF*At Shaylene Iseri-Carvalho
Prosecuting Attomey
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 OPA
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
Deputy Prosecuting Attorneys:
Lisa R.Arin Melinda K_Mende,,; Gary Nelson
Tared Anna John H.Murpliv Ramsey Ross
Lance Kobashiga"'a Rebecca A,Vogt
An Equal Opportunitil Employer CRC 2012-04
offenses,when he has information that any such offenses have been committed, and
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
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, the council, the mayor, the Kauai Police department and other criminal
justice agencies, or the general public, as the prosecuting attorney deems
appropriate.
B. Provide crime awareness and prevention programs for law enforcement agencies,
citizens, businesses, and civicgroups.
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 Kauai, 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.
Various Proposed Amendments Relating to Salaries of County Officers.
Findings and Purpose.
Article XXIX of the Kauai County Charter shall be amended to read as follows:
"ARTICLE XXIX
SALARY COMMISSION
Section 29.01. Organization. There shall be a Salary Commission composed of seven
members to establish the maximum salaries of all [councilmembers and all officers
and employees included in Section 3-2.1 of the Kauai County Code 1987, as
amended] elected and appointed officers as defined in Section 23.01 Q of this
Charter.
Section 29.02. Policies. The commission shall adopt and, when it deems necessary,
may change the policies governing its salary-setting decisions.
Section 29.03. Resolution. The commission's salary findings shall be adopted by
resolution of the commission and forwarded to the mayor and the council on or
before March 15 of any calendar year. [Subject to Section 29.05, the] The resolution
shall take effect without the mayor's and council's concurrence sixty days after its
adoption by the commission unless rejected by a vote of not less than five members
of the council. The council may reject either the entire resolution or any portion of
it. The respective appointing authority may set the salary of an appointee at a
figure lower than the maximum figure established by [ordinance] the salary
commission for the position. Provided however, elected officers may voluntarily
accept no salary or a salary lower than the maximum figure established by the
salary commission for their position.
CRC 2011-08
Revised Draft: 8-22-11 (Articles XXIX,xxin&vu—county Salaries)
Section 29.04 Rules. The commission shall establish its rules of procedures and
adopt rules and regulations pursuant to law.
Section 29.05 [Changes in Salary. No change in salary of councilmembers shall be
effective during the term in which a change is enacted or for twenty-four months
after a change is enacted, whichever is less.
Section 29.06] Administration and Operation. The mayor and council shall provide
an annual appropriation sufficient to enable the commission to secure clerical 'or
technical assistance and pay other operational costs in the performance of its
duties."
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question,
CRC 2011-08
Revised Draft: 8-22-11 (Articles XXIX,XXIII&Vil—County Salaries)
r-------------
_j
Findings and Purpose.
Article XXIII, Section 23.01 D of the Kauai County Charter shall be amended to read
as follows:
ARTICLE XXIII
GENERAL PROVISIONS
"Section 23.01. Definitions.
D. The term "officer" shall include the following:
(1) Mayor, prosecuting attorney, and members of the council.
(2) Any person excluded from Chapter 76, HRS and the position
classification plan who is appointed as administrative head of any
department or agency of the county [or as a member of any board or
commission].
(3) [The first deputy] Deputies appointed by the administrative head of
any department or agency of the county who are excluded from
Chapter 76, HRS and the position classification plan.
[(4) Deputies of the county attorney.]
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
CRC 2011-08
Revised Draft: 8-22-11 (Articles xxix,xxiii&vii—county Salaries)
Findings and Purpose.
Article V11, Section 7.03 of the Kauai County Charter shall be amended to read as
follows:
ARTICLE VII
MAYOR
"Section 7.03. Compensation. The salary of the mayor shall be [$19,000.00 per
annum which shall be subject to change by the council. The salary of any incumbent
shall be reduced only in the event that a general reduction in salaries of all county
officers and employees is simultaneously effected] established in accordance with
the provisions of Article XXIX of this Charter.
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
CRC 2011-08
Revised Draft: 8-22-11 (Articles XXIX,XXIll&V11—County Salaries)
An Amendment Relating to the Election of County Officers.
Findings and Purpose.
Charter Amendment.
Article 1, Section 1.03 of the Kauai County Charter shall be amended to read as
follows:
ARTICLE I
THE COUNTY AND ITS GOVERNMENT
"Section 1.03. County Elections.
[A. In general. County elections shall be conducted in accordance with the
election laws of the State insofar as applicable, but all elective officers shall be
elected by nonpartisan elections. Except as otherwise provided in this charter, such
nonpartisan elections shall be held in conjunction with the primary and general
elections of the applicable year in which the terms of the mayor, council members,
or prosecuting attorney, respectively, end.
B. First nonpartisan election. To the extent possible, the first nonpartisan
election shall be held in conjunction with the primary election of the applicable
year.
1. Offices of the Mayor, Prosecuting Attorney and Council members to be
elected by districts, if any. In the case of the offices of mayor, prosecuting attorney,
or any council members to be elected by districts, the names of the two candidates
receiving the highest number of votes for these offices in the first nonpartisan
election shall be placed on the ballot for the second nonpartisan election. However,
if there is only one candidate for each of said offices, such candidate shall be
Draft: 8-24-11 (Sec.1.03—County Elections)
CRC 2011-07
elected.
2. Office of At-Large Council Members. The candidates receiving the highest
number of votes shall be elected to fill each vacant at-large council office provided
the candidate or candidates receive at least thirty percent of all votes cast for all at-
large council offices. In the event of a tie for the last remaining at-large council
office the candidates receiving the same number of votes shall be placed on the
ballot for the second nonpartisan election.
C. Second nonpartisan election. To the extent possible, the second
nonpartisan election shall be held in conjunction with the general election for the
applicable year.
1. Offices of the Mayor, Prosecuting Attorney, and Council members to be
elected by districts, if any. Unless a candidate for mayor, prosecuting attorney, or
council members to be elected by district, if any, is elected in the first nonpartisan
election, the names of the two candidates receiving the highest number of votes for
these offices in the first nonpartisan election shall be placed on the ballot for the
second nonpartisan election. At the second nonpartisan election the candidates
receiving the highest number of votes for mayor, prosecuting attorney and district
council member, respectively, shall be elected.
2. Office of At-Large Council members.
a. If any at-large council office remains to be filled after the first nonpartisan
election, two candidates for each vacant at-large council office shall be placed on
the ballot. The names of the candidates receiving the highest number of votes cast
in the first nonpartisan election, other than the name of any candidate elected after
the first nonpartisan election, shall be placed on the ballot until a sufficient number
of candidates are on the ballot as provided in this subsection. At the second
nonpartisan election, the candidates receiving the highest number of votes for each
vacant at-large office shall be elected.
b. In the event of a tie vote in the second nonpartisan election, the winner
shall be determined by chance by a method chosen by the county clerk.
D. In any subsequent publication of the foregoing sections the term "first
Draft: 8-24-11 (Sec.1.03—County Elections)
CRC 2011-07
nonpartisan election" and "second nonpartisan election" may be changed to
"primary election" and "general election", respectively.]
A. Nonpartisan Elections. County elections shall be conducted in accordance
with the election laws of the State insofar as applicable, but all elective county
officers shall be elected by nonpartisan elections.
B. Offices of the Mayor and Prosecuting Attorney.
1. For the offices of mayor and prosecuting attorney, the names of the two
candidates receiving the highest number of votes for these offices in the primary
election shall be placed on the ballot for the general election. However, if there is
only one candidate for each of said offices, such candidate shall be elected in the
primary election.
2. At the general election the candidates receiving the highest number of
votes for mayor and prosecuting attorney shall be elected.
3. Tie votes. In the event of a tie vote for mayor and prosecuting attorney in
the primary or general election, the winner shall be determined by a method of
chance as determined by the county clerk.
C. Office of At-Large Council members.
1. For at-large council offices, two candidates for each vacant at-large council
office receiving the highest number of votes in the primary election shall be placed
on the ballot for the general election.
2. At the general election the candidates receiving the highest number of
votes for each vacant at-large council office shall be elected.
3. Tie votes. In the event of a tie vote for the last remaining at-large council
office in the primary election, the candidates receiving the same number of votes
shall be placed on the ballot for the general election.
In the event of a tie vote for the last remaining at-large council office in the
general election, the winner shall be determined by a method of chance as
Draft: 8-24-11 (Sec.1.03—County Elections)
CRC 2011-07
determined by the county clerk."
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
8125111: 1"Legal review received
4129%11: Resubmit changes for legal review.
10110{11;Legal review received
Draft: 5-24-11 (Sec.1.03--County Elections)
CRC 2011-07