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HomeMy WebLinkAbout2012_0625_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 7/23/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I June 25, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:01 p.m. End of Meeting: 5:48 p.m. Present Chair Patrick Stack Members: Joel Guy; Ed Justus; James Nishida; Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura; Chief of Police Darryl Perry Excused Vice-Chair Carol Suzawa. Member: Mary Lou Barela Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:01 m with 5 Commissioners present Approval of Open Session Minutes of May 21, 2012 Mr. TenBruggencate moved to approve the Minutes minutes as circulated. Mr. Nishida seconded the motion. Motion carried 5:0 Business 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. Attorney Winn said along with the staff, she had reviewed the proposed ballot questions and the revised ballot questions. She explained that some of the revisions were too simple and did not encompass the purpose of the Amendment. Such as, in the case of Initiative & Referendum and Charter Amendments, clarifies that the petitions have to be signed by registered voters comprising a percentage of the number of voters registered in the last election rather than"eligible voters". Attorney Winn said that her suggested revisions are very similar to Mr. TenBruggencate's suggestions that he just distributed. It needs to be noted that this is clarifying the amendments and not putting anything in that was not there originally. Section 22.03 —Initiative and Referendum Mr. Justus suggested that instead of"a certain percentage", if it could read Charter Review Commission Open Session June 25, 2012 Page 2 SUBJECT DISCUSSION ACTION registered voters comprising the currently established percentage would make it clear that they were not adjusting that number. Attorney Winn agreed that was a reasonable thing to try to get across but the word currently does not substantively do anything. Mr. Justus moved to adjust the ballot question for Section 22.03 to read: Should it be clarified that an initiative or referendum petition must be signed by registered voters comprising the Mr. TenBruggencate wondered if the public would think they had to be a established percentage of the number of voters voter in the last general election in order to vote on initiative or referendum. registered in the last election? Mr. Guy Mr. Justus thought the line "comprising the percentage" clarified that. seconded the motion. Motion carried 5:0 Section 24.01 —Charter Amendments Attorney Winn explained the next ballot question for review was basically the same issue as the last but dealt with a charter amendment. Mr. TenBruggencate moved to revise the ballot question for Section 24.01 to read: Should it be clarified that a petition for a charter amendment must be signed by registered voters comprising the established percentage of the number of voters registered in the last election? Mr. Justus seconded the motion. Motion carried 5:0 Section 7.03 - Mayor Staff explained that the ballot question was revised to reflect the word "salary" instead of"compensation"because the Salary Commission can only establish salaries. Mr. TenBruggencate asked that the word severely be removed from the Findings and Purpose because if something is outdated, it is outdated and does not need to be severely outdated. Mr.TenBruggencate moved that the word severely Charter Review Commission Open Session June 25, 2012 Page 3 SUBJECT DISCUSSION ACTION be removed from the Findings and Purposes so that the first line reads: The Commission finds that Section 7.03 of Article VII of the Kauai County Charter is outdated. Mr. Justus seconded the motion. Motion carried 5:0 Mr. Justus moved to accept the ballot question as presented: Should the Mayor's salary be established by the Salary Commission? Mr. TenBruggencate seconded the motion. Motion carried 5:0 Section 29.01 — Salary Commission and Section 23.01 —General Provisions Attorney Winn stated that she did not know if the section covering the Salary Commission would ever get any better and her suggestion would be almost exactly what the revised ballot question was minus Commission members since Commission members don't get paid and has nothing to do with salary. Specifying Council was one of the changes Attorney Winn made because they were the only ones this applied to. Mr. Justus said in reality it seems like it is two separate questions and the voters may approve of the first portion but not necessarily the second portion or vice-versa. Attorney Winn said that was a judgment call the Commission made at the last meeting on whether to have two separate questions where the voters may accept one and not accept the other or lump them together where they can accept all of it or not accept any of it. Mr. TenBruggencate said it was three separate issues. Mr. Justus said to him it was two separate issues; one establishes maximum Charter Review Commission Open Session June 25, 2012 Page 4 SUBJECT DISCUSSION ACTION salaries and the other eliminates how quickly the Council can get their money. There may be a better chance of passing the first portion versus passing the second portion. Chair Stack asked what the logic was of accepting salaries lower than the maximum. Attorney Winn said it specifically had to do with the Mayor wanting to accept less salary while all the employees were furloughed but legally could not do so. Mr.Justus moved to bifurcate the suggested ballot question into two ballot questions: 1) Should the Salary Commission establish maximum salaries for officers, which shall include the Prosecuting Attorney and all deputies and allow for elected officers to accept salaries lower than the maximum? 2) Should the waiting period before council's salary changes become effective be eliminated? Mr. TenBruggencate seconded the motion. Mr. Guy and Mr. Justus did not recall previous discussions of eliminating the waiting period for Council salary changes. Mr. TenBruggencate explained the rule used to be that the Council set the salary for the Mayor, the department heads, and the Council through a salary ordinance and then it was changed to a Salary Commission. While the Council was setting the salaries, they set up a rule that the Council could not change its own salary during the same term and it would not go into effect until a new Council was established in the next term. The waiting period is still in place. Ms. Morikami told the Commission that she had reviewed the past two years of the Commission's minutes to determine how the question on the waiting period came about. The only discussion on this item was in May when the Commission decided to include it as a ballot question. Charter Review Commission Open Session June 25, 2012 Page 5 SUBJECT DISCUSSION ACTION Mr. Justus asked if they could remove that question from the ballot and would it affect the whole workings of what the Commission was trying to pass. Mr. TenBruggencate said the Salary Commission sets everyone's salary except for union, contractual, or lower level appointed employees. The Mayor and appointed department heads receive salary increases immediately but 7 people on the County Council do not get those increases right away. Mr. TenBruggencate did not have any objection to delaying salary increases for all elected officials until after the Salary Commission they appointed is out of office but to delay it only for the Council and not the other people seems to be inequitable. The Council no longer has any control over their own salary so why should they be punished when a Salary Commission says they should get an increase. Mr. Justus agreed that was a good point and an item for discussion in the future. Attorney Winn said this is part of what the Commission has proposed as an amendment even if they did not discuss it, it was in the initial proposal and was passed. At the next meeting the Commission can go through all of the proposed amendments to see if that is what they want to present to the voters but it is too late to make substantive changes to the proposals because that would require another legal review. Mr. Justus suggested it be considered for the 2014 ballot. Mr. Guy said if he were elected as a Councilperson he would know what his salary would be until the next election. Mr. TenBruggencate asked if that should also be applicable to the Mayor. Charter Review Commission Open Session June 25, 2012 Page 6 SUBJECT DISCUSSION ACTION Why should the Mayor get a raise when Council cannot? Chair Stack said the purpose of this Commission is to bring ballot questions that are necessary for the government and/or desirable. Should the Commission focus on this now or table it. Mr. Guy said he was fine with separating the two and then at another review say no. Mr. TenBruggencate agreed that this ballot language threatens this ballot item and confuses the issue and would agree with taking it out of this ballot item. Motion to bifurcate the motion into 2 questions carried 5:0 Section 23.01 —General Provisions Attorney Winn explained that the last issue was the amendment to remove board or commission members from the definition of the word officer. That did not seem to have anything to do with the Salary Commission since board members do not receive a salary so a separate question was created. Attorney Winn explained that liability-wise whether you are an officer or an employee, you would be covered under the County as long as you are acting within your duties. Mr. TenBruggencate said if he wanted to appear before the County Council on behalf of his bookstore that he would be prevented from doing so under the current Ethics regulations. Attorney Winn said that applied to both employees and officers. When asked if this would allow members of Boards and Commissions to enter into a contract with the County since they are not technically an officer, Charter Review Commission Open Session June 25, 2012 Page 7 SUBJECT DISCUSSION ACTION staff said it would have to be by competitive bid. Mr. Justus suggested adding the word volunteer following the word should to read: Should volunteer commission or board members...because there are a lot of people who do not have a clue that board or commission members don't get paid. Attorney Winn said it might clarify it and would not be problematic to add the word volunteer. Mr. Justus moved to amend the ballot question to read: Should volunteer commission or board members be excluded from the definition of the word "officer"?Mr. Guy seconded the motion. Mr. TenBruggencate said the motion does not address the issue. Mr. Justus wants to educate voters, which is not the purpose of a charter amendment. Chair Stack said implicit in the question, the critical word is officer and as an officer of the county he is precluded from entering into contracts with other County agencies, departments, or employees. This solves the problem. Mr. TenBruggencate said it does not solve the problem because you are still an employee of the County. Chair Stack said an employee gets paid and the Commissioners do not. Mr. TenBruggencate said the County Code makes them employees even though they do not get paid. Mr. Guy said the ethical part remains the same whether you are a volunteer or not; those same constraints apply to you. Mr. Guy said part of the Commission's job is to educate the public. Charter Review Commission Open Session June 25, 2012 Page 8 SUBJECT DISCUSSION ACTION Mr. Nishida said he wants whatever protection he can get because some Commissions do get sued so he was not sure about eliminating the definition of an officer. Mr. Justus said if officers and employees get the same protection it does not matter if they are called officers or employees. Attorney Winn said as long as they are doing their jobs per their duties, etc., they would be covered. It is a fine distinction but for now they are working on the language for the ballot question. Mr. TenBruggencate said this should be pulled off the ballot altogether because there doesn't seem to be any justification for it. Roll Call Vote: Justus—Aye; Nishida—Abstain; TenBruggencate—Nay; Guy—Aye; Stack—Nay Motion failed 2 ayes: 2 nays: 1 abstain Based on the comments of Counsel, Mr. TenBruggencate moved that the language: Should commission or board members be excluded from the definition of the word "officer"? be moved to the next meeting for further discussion. Mr. Nishida seconded the motion. Motion carried 5:0 Charter Review Commission Open Session June 25, 2012 Page 9 SUBJECT DISCUSSION ACTION CRC 2011-17 Proposed amendment from Commissioner Justus revising Article III, County Council, Sections 3.02 Composition, Section 3.03 Terms, and Section 3.04 Qualifications relating to Partial Districting (deferred from 5/21/12) b. Discussion and possible decision-making on the findings and recommendations of the Special Committee on County Districting to o the Charter Review Commission as presented to the Commission at the April 23, 2012 meeting, pursuant to HRS X92-2.5 c. Special Committee proposed amendment for County Council Partial Districting (Four District/Three At-Large) d. Special Committee proposed amendment for County Council Districting — Seven Districts, At-Lame Mr. Justus said in reading the minutes, Commissioner Suzawa was not correct in saying that suggestion 2 of the 7 Council seats At-Large would keep it the same. It is supposed to be that the Council is voted at-large but by district,which is also clarified in one of the suggestions that was attached. There are four different options that can be pursued which is the 4 District Seats and 3 At-Large Seats, the other is the 7 members all voted At- Large by 7 Districts and Neighborhood Boards which needs research as to how these Boards are created. The simplest option to address the public's concern of more interaction with the people they elect for Council would be to create a Council regional committee whereby Councilmembers would be assigned or volunteer to alternately be at a certain section of the island so there is no vested interest in one place. It would force the Council to interact with the public and the Councilmembers would have to go to the people rather than the people go to the Council. Mr. Justus corrected the ballot question by removing the names of the 4 districts on the 7 Districts Charter Review Commission Open Session June 25, 2012 Page 10 SUBJECT DISCUSSION ACTION At-Large ballot question because there would be 7 districts. Mr. Nishida said the island is small enough, they do not need districts. The voting public voting for 3 At-Large compared to voting for 7 At-Large is a big restriction to democracy. Island-wide campaigning is good for the people versus restricting campaigning to districts. Mr. Justus said the sub-committee felt the people were not satisfied with how the Council was representing them. The Charter Commission and the Council have both presented the idea of districting to meet that need but there is no guarantee that districting will solve the need. Mr. Justus said although he presented the part districting, in reality he thinks the Council regional committee is probably the easiest and most effective way to go. It requires that whatever the community members tell that Councilperson, those issues get put on the agenda and discussed. The Councilmembers would have to report back to the community each month of what they did with those ideas from the community. Mr. Guy stated his appreciation for all of Mr. Justus' work on this proposal but he feels this should be deferred to gather more information so the Commission is crystal clear on how to work it out. He is not confident the Commission can educate the public on this matter by election time. Mr. Justus said this issue would not be part of the 2012 ballot. Mr. Guy said he did like the 7 Districts and voting At-Large but fears getting locked into not having qualified candidate in a particular district. Mr. Justus said they could make it a requirement that the Councilmembers go into the community and take opinions from the people for placement on their agenda. Charter Review Commission Open Session June 25, 2012 Page 11 SUBJECT DISCUSSION ACTION Mr. TenBruggencate thought of all the Districting proposals this was the best one but there are a couple of ways to do it. If all the names are put on the ballot and the top vote getter from each district gets in it would function that you have 7 people voted for At-Large. Getting Councilmembers out in the public to talk with the people does not necessarily need to go into the Charter. Chair Stack's interpretation from the discussion was that Mr. Nishida does not like districting, Mr. Guy wants to defer this item, Mr. Justus likes it but is having second thoughts, Mr. TenBruggencate likes the OHA style and thinks that should be implemented here. Chair Stack agreed this item needs to be vetted more than what has been done and suggested deferring the Mr. Guy moved to defer Districting to the item. December meeting. Mr. Justus seconded the motion. Motion carried 5:0 CRC 2012-05 Memorandum dated 4/10/12 from the Prosecuting Attorney's Office proposing charter amendments to Article VIII relating to the Office of the County Attorney (deferred from 5/21/12) b. Proposed changes from Commissioner Ed Justus to Article VIII Mr. Justus said he received input from the public on things they would like to see happen with the Office of the County Attorney. §8.02—Appointment and Removal. Someone commented that they did not understand how the County Attorney's Office could be completely without prejudice if their job security is dependent only on the Mayor. Since this Office serves the entire Charter Review Commission Open Session June 25, 2012 Page 12 SUBJECT DISCUSSION ACTION County as a whole, which includes the County Council and the Prosecuting Attorney's Office, then there should be some balance of power between the Mayor and the County Council. §8.03 —Qualifications. If someone is serving as an Attorney they should have practiced law at least for 5 years since they would have barely been out of law school in 3 years. §8.04 Powers, Duties, and Functions. It was also noted that the County Attorney should be responsible for the County to be operating in accordance with the law. A new section would add Mediation where lawsuits filed against the County shall first be given the option of mediation to resolve issues before it goes to a court of law. Another new section would add a Yearly Review where all major branches of government would question the County Attorney, if they have concerns, so all parts of government are in agreement with how the County Attorney's Office is serving them. The last addition would be a Special Review that if something has been done by the County Attorney that is not in compliance with the law or is illegal, there would be a proceeding that automatically causes them to have a hearing to be removed. Mr. Justus moved that the Commission take these suggestions as additional individual agenda items and discuss them as such. Mr. Guy seconded the motion. Motion carried 4:1 —nay Mr. Nishida asked if the County Council was working on this same item as a (TenBruggencate) charter amendment. Attorney Winn said the Council had a proposed Bill,not a charter amendment. Mr. Justus said it would be good to get a review from the County Attorney's Office on what has been presented. Attorney Winn said the Commission needed to have their exact proposed amendment and to decide if it is necessary or desirable before the County Attorney' Office could do a legal review of the proposed amendment. Mr. Justus moved to issue a communication to Charter Review Commission Open Session June 25, 2012 Page 13 SUBJECT DISCUSSION ACTION the Office of the Prosecuting Attorney to present themselves before the Commission the next time this item comes up on the agenda to explain their Mr. Nishida expressed concern that they were reflecting the County Code in proposal. Chair Stack seconded the motion. the Charter. The Charter is an enabling type of legislation and would be a conflict between the Administration, the County Attorney and the different departments that may be having a conflict. Mr. Justus' proposal is along the lines of how the County Attorney is appointed which is something you want the voters to vote on. Since the only way to change the Charter is through the voters, it may be possible that this might be a problem that is only happening now. Mr. Nishida said if this is going through County Council as a Bill, the Charter Commission should not consider it. Mr. Justus asked if the Commission could get a copy of the County Council Bill for review. Mr. Justus withdrew the motion. Chair Stack withdrew the second. Mr. Justus moved to request a copy of the County Council's Bill regarding the County Attorney's Office from Council Services. Mr. Nishida seconded the motion. Motion carried 4:1 (na —TenBru encate CRC 2012-06 Memorandum dated 4/10/12 from the Prosecuting Attorney's Office proposing charter amendments to Article XI relating to the Police Department(deferred from 5/21/12) Darryl Perry, Chief of Police, said it had been awhile since he had read the Prosecuting Attorney's proposal and asked to see a copy. Mr. Nishida asked Chief Perry if there was anything that precluded him from hiring a legal advisor now. Charter Review Commission Open Session June 25, 2012 Page 14 SUBJECT DISCUSSION ACTION Chief Perry said he would have to check with Procurement. Historically the original position was assigned to the Kaua'i Police Department and was subsequently removed and placed in the County Attorney's Office. The original intent was to have an independent advisor to the Chief but he did not know what the discussions were to allow the movement of that position to take place but he was opposed to that because you cannot serve two masters. When there are conflicts, the County Attorney has to support his boss or his supervisor. Mr. Nishida asked if that was the reason for the charter amendment to have the public endorse the idea that the Police Department would have a separate legal advisor and under the Chief of Police. Mr. Guy said the original intent was to have this model already in place and asked when it was moved to the County Attorney's Office. Chief Perry said that was about 3 years ago. The first advisor was Lani Nakazawa but the position had already been transferred to the County Attorney's Office. This procedure would not be unlike what the Honolulu Police Department and other counties have with their own legal advisor so there is no political influence on decision-making. The legal advisor to the Chief of Police represents the Chief in many different areas including labor relations and to testify in front of the legislature. They also work with the Corporation Counsel in legal matters, so while they do operate independently, Chief Perry was not sure how it was handled when there was a conflict other than the advisor represents the interest of the Police Department. Mr. Nishida asked that in order for Attorney Winn to work on a proposal such as this, would it have to be in the form of a proposed ballot question or Charter Review Commission Open Session June 25, 2012 Page 15 SUBJECT DISCUSSION ACTION can the Commission discuss in general a proposed ballot question. Attorney Winn said without seeing the amendment language she could not do a legal review. Ms. Davis advised Mr. Nishida that the first step would be a Ramseyer version of the Charter. Then the proposed amendment can be discussed. Attorney Winn said she cannot give a legal opinion without seeing the actual proposed language. Attorney Winn said she could provide the Commission with the wording from the Honolulu Charter which is on-line. Mr. TenBruggencate said it seemed they were grasping at little pieces of a bigger problem. It all seems to come down to the County Attorney and perhaps they ought to look seriously at the structure of the County Attorney's Office in the Charter and consider maybe an elected County Attorney. Mr. TenBruggencate said he would hesitate to support making a whole bunch of little amendments which weakens the power of the County Attorney. "We should look for the big fix that fixes a bunch of the little fixes". The County Council has argued that they need an attorney, the Prosecuting Attorney has argued that she needs an attorney, and the Police Chief is saying he needs an attorney. Mr. Justus noted it was interesting bringing up an elected County Attorney because the argument could be that you might get the most popular but not necessarily the best person for job. Mr. TenBruggencate said the other argument would be if the majority of voters voted for that person they are by definition the best. Chair Stack agreed that they could not keep breaking out bandages to fix Charter Review Commission Open Session June 25, 2012 Page 16 SUBJECT DISCUSSION ACTION every little wound in the Charter. It is an organic document and will change over time. Public opinion will prevail but he cannot ignore what happened recently because of a poor decision that as made. The procedures must be made less ambiguous than they are now in the Charter. Mr. TenBruggencate suggested this was more of a budget issue than a Charter issue and asked if the County Council could not create this position in the budget. Chief Perry said the County Council did but the position was taken away by the Mayor's Office. Mr. Justus said the most reasonable thing to do was take a look at all the island's charters to have something to compare it to. Mr. Guy thought that if every department is given an attorney it would create a County litigation system. Attorney Winn said she would get the provisions that deal with the County Attorney's Office, any legal advisors and, if they want, specifically the Police Departments. Mr. TenBruggencate moved to defer this item to the July meeting. Mr. Justus seconded the motion. Motion carried 6:0 CRC 2012-07 Item 2 of Memorandum dated 4/10/12 from the Prosecuting Attorney's Office proposing a charter amendment to Article XIX, Section 19.02 B, to change the budgetary_process (deferred from 5/21/12) Mr. Justus suggested the Commission request the Office of the Prosecuting Attorney provide language for their proposed change to the budget process while Mr. Nishida wanted to turn this item down for consideration. Staff Charter Review Commission Open Session June 25, 2012 Page 17 SUBJECT DISCUSSION ACTION reminded the Commission that they would also need to invite the Finance Director who is responsible for the enforcement of the budget. Mr. TenBruggencate moved to defer this item indefinitely. Attorney Winn said what appears to be a request for a simple change would require change to a lot of provisions in the Charter. The Charter provides that the Finance Director is in charge of the entire budget and the Mayor is in charge of presenting the budget. The entire budgetary procedure would have to be looked at and reviewed. Mr. Nishida seconded the motion. Motion carried 4:1 (nay—Justus) ES-4: Executive Session Minutes of May 21, 2012 Mr. TenBruggencate moved to approve the minutes as circulated. Mr. Nishida seconded the motion. Motion carried 4:1 (nay—Justus Announcements Next Meeting: Mon day, July 23, 2012 Adjournment Chair Stack adjourned the meeting at 5:48 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.