HomeMy WebLinkAbout2012_0723_CharterAgendaPacket Patrick Stack Members-
Chair Mary Lou Barela
Joel Guy
Ed Justus
Carol Suzawa James Ni,,hida,Jr.
Vice Chair Jan TenBruggencate
COUNTY OF KAUAI CHARTER REVIEW COMMISSION
NOTICE OF MEETING AND AGENDA
Monday, July 23, 2012
4:00 p.m. or shortly thereafter
Mo'ikeha Building, Meeting Room 2AJB
4444 Rice Street, Lihu'e, HI 96766
CALL TO ORDER
APPROVAL OF MINUTES
Regular Open Session Minutes of June 25, 2012
BUSINESS
CRC 2012-08 Final review and approval of Findings & Purpose and Ballot Questions for proposed
charter amendments
CRC 2012-05 Memorandum dated 4110112 from the Prosecuting Attorney's Office proposing
charter amendments to Article V111 relating to the Office of the County Attorney
(deferred from 6,125112)
b. Proposed changes from Commissioner Ed Justus to Article V111
c. County Council Bill No. 2438 for an ordinance amending Chapter 3, Kauai
County Code, 1987, as amended, relating to the representation of clients with
conflicting interests by the Office of the County Attorney
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
6/2511/12)
a. Charter policy from Oahu, Maui, and Ha-,vaii on the legal adviser and counsel
to the Police Department
ANNOUNCEMENTS
Next Meeting: Monday.. August 27, 2012 at 4:00 pin in the Mo'ikeha Building, Meeting Room 2A/B
fleeting:
An Equal Opportunity Employer
EXECUTIVE SESSION
Pursuant to Hawai'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 CO's'MENTS and TESTIMONY
Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior
to the meeting indicating:
zl.�,
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.
While every effort will be made to copy, organize, and collate all testimony received, materials
received on the day of the meeting or improperly identified may be distributed to the members after the
meeting is concluded.
The Charter Commission rules limit the length of time allocated to persons wishing to present verbal
testimony to five (5) minutes. A speaker's time may be limited to three (3) minutes if, in the discretion
of the chairperson or presiding member, such limitation is necessary to accommodate all persons
desiring to address the Commission at the meeting.
Send written testimony to:
Charter Review Commission
Attn: Barbara Davis
Office of Boards and Commissions
4444 Rice Street, Suite 150
Uhu'e, HI 96766
E-mail:bdavis(a—ikauai (lov
Phone: (808)'2Z-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—July 23, 2012 2
An Amendment Relating to the Election of County Officers.
Findings and Purpose.
The Commission finds that Section 1.03 (D) of Article I of the Kauai County Charter
provides that the terms "first nonpartisan election" and "second nonpartisan
election" in this section may be changed to "primary election" and "general
election", respectively. The Commission also finds that implementing this change
and reorganizing the provisions of this section will make it easier to understand. The
Commission also does not agree with the election of candidates receiving at least
thirty percent of all votes cast in the primary election to the County Council and
finds that these candidates, if any, should be required to run again in the general
election. The purpose of this amendment is to reorganize Section 1.03 and remove
the language providing for the election of candidates for the County Council who
receive at least thirty percent of the votes cast in the primary election.
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
Revised 06/25/12 (Sec. 1.03-County Elections)
0 la
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
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.
Revised 06/25/12 (Sec.1.03-County Elections)
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
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-lar ge 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
Revised 06/25/12 (Sec.1.03—County Elections)
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
determined by the county clerk."
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
Should a candidate for County Council be required to run in the general election
even though the candidate received at least thirty percent of the votes cast in the
primary election?
Reviewed for form and legality:
JenrVer Winn (date)
Revised 06/25/12 (Sec.1.03—County Elections)
Proposing A Charter Amendment to Section 7.03 Relating
to the Mayor's Compensation
Findings and Purpose.
The Commission finds that Section 7.03 of Article V11 of the Kauai County Charter
is outdated. The purpose of this amendment is to update this section by
confirming that the Mayor's salary shall be established by the salary commission
in accordance with Article XXIX of the Charter.
Charter Amendment.
Article V11, Section 7.03 of the Kaua'i 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.
Should the Mayor's salary be established by the Salary Commission?
Reviewed for form and legality:
Jennifer Winn (date)
Revised 6/25/12
Proposing A Charter Amendment tmSection 9A.Q3 Relating tothe Powers,Duties
and Functions of the Prosecuting Attorney
Findings and Purpose.
TheCc�nmissiomfindsthatthecurrentprovisionsofArtide |XAoftheKauai
County Charter relating to the powers,duties and functions of the Prosecuting
Attorney does not clearly and accurately reflect the operations of the office of the
Prosecuting Attorney,The purpose of this amendment is to amend Article IXA of
the Charter so that it clearly and accurately reflects the well-established practices
of the Prosecuting Attorney.
Charter Amendment.
Section 9A.U3of the Kmua'i County Charter is amended to read asfollows:
ARTICUE|XA
PROSECUTING ATTORNEY
Section 9A.O3. Powers, Duties and Functions.
LU The prosecuting attorney shall:
A. Attend all courts inthe county and conduct on behalf nf 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 isa change of venue from the
courts in the county and prosecute the same in any jurisdiction towhich
the same is changed or removed.The expense of such proceeding shall
bp paid by the county.
D. Institute proceedings,or direct the chief of police todo so, before the
district judge for the arrest of persons charged with orreasonably
suspected mf public offenses, when he has information that any such
offenses have been committed, and for that purpose take charge of
Revised 6!-5/12
criminal cases before the district judge, either in person orbyadeputy
orby such other prosecuting officer ashe shall designate.
E. Draw all indictments and attend before and give advice to the grand jury
`
whenever cases are presented toit 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.,
(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 judicia[y, the council, the mayor,the Kaua'i 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 civic groups.
C. Develop public education programs through various broadcast or print
media, to provide the general public information that will assist citizens
in developing the knowledge and confidence to prevent crime and to
avoid being victims of crime.
D. Receive and expend financial grants, donations and other funds as
permitted by the provisions of the revised charter, county ordinances
and applicable city, state, and federal financial and budget policies for
crime research, prevention, and education.
Note: Charter material to be repealed is bracketed. New charter material isunderscored.
Revised 6;25,12
Ballot Question.
Should the office of the prosecuting attorney be empowered to 1)develop and
provide crime awareness and prevention programs for and to the community, 2)
research,evaluate and make recommendations regarding crime, crime
prevention and the criminal justice system, and 3)subject to applicable law,
receive and expend funds for these purposes?
Approved asto form and legality:
( �� \[3 | |��
\`~--� / /-7
Jenni4WWinn (date)
Revised mzs'|z
An Amendment Relating to Submission Requirements for Initiative and
Referendum Petitions.
Findings and Purpose.
The Charter Commission finds that Section 22.03 of Article XXII of the Kauai
County Charter needs clarification with regard to submission requirements of
initiative and referendum petitions. The commission also finds that the words
"eligible" and "preceding" in subsection 22.030 are ambiguous and confusing. The
purpose of this amendment is to clarify that initiative and referendum petitions
must be signed by registered voters comprising a certain percentage of voters
registered in the last general election.
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
Revised 6/25/12 (Sec.22.03-Initiative and Referendum)
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. "
Note: Charter material to be repealed is bracketed. New charter material is
underscored.
Ballot Question.
Should it be clarified that an initiative or referendum petition must be signed by
registered voters comprising of the established percentage of the number of
voters registered in the last election?
Reviewed for form and legality:
.ten fifer Winn (date)
Revised 6/25/12 (Sec.22.03-Initiative and Referendum)
An Amendment Relating to Initiation of Charter Amendments.
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 genuine" in subsection 24.01 is ambiguous and confusing. The
purpose of this amendment is to clarify that petitions for initiating amendments
to the charter of the county of Kauai must contain valid signatures of registered
voters.
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] Yqjj4 signatures of
registered voters."
Revised 6/25/12 (Sec.24.01—Charter Petitions)
Note: New charter material is underscored.
Ballot Question.
Should it be clarified that a petition for a charter amendment must be signed by
registered voters comprising of the established percentage of the number of
voters registered in the last election?
Reviewed for form and legality:
Jennifer Winn (date)
Revised 6/25/12 (Sec.24.01—Charter Petitions)
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 t'heir
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.
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?
Reviewed for form and legality:
jjLjLCA--. -? )q]I?_
-v
Jenfer Winn (date)
Revised 6/25"12
Proposing A Charter Amendment to Section 29.01 Relating to Salary Commission
and Section 23.01 Relating to General Provisions
Findings and Purpose.
The Commission finds that 1) Article XXIX of the Kauai County Charter should be
amended to clarify that the Salary Commission establishes maximum salaries for
all elected and appointed county officers, 2) there is no legal authority to permit
an elected county officer to accept a salary lower than the maximum established
by the Salary Commission or even forego a salary, and 3) section 29.05 of Article
XXIX which was designed to delay salary increases and provide a waiting period
before a salary change 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 Commission also
finds that the definition of the term "officer" in Article XXIII of the Kauai County
Charter should be amended and clarified. 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, eliminate any waiting period before any salary changes become
effective, include the Kauai County Prosecuting Attorney and department heads
and their deputies who are not part of the position classification plan described in
Chapter 76 of the Hawaii Revised Statutes, and exclude members of any board or
commission as officers of the County.
Charter Amendment.
Article XXIX, Section 29.01 and Article XXIII, Section 23.01 of the Kaua'i County
Charter are 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
Revised 6/25/12
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 D 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 finding,-, 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 a salary lower than the maximum figure established by the salary
commission for their position, or forego accepting a salary.
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."
ARTICLE XXIII
GENERAL PROVISIONS
"Section 23.01. Definitions.
D. The term "officer" shall include the following:
Revised 6/25112
(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 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?
Ballot Question 2.
Should the waiting period be eliminated before council's salary changes become
effective?
Ballot Question 3.
Should commission or board members be excluded from the definition of the
word "officer"?
Reviewed for form and legality:
JennWer Winn (date)
Revised 6/25/12
OFFICE OF THE PROSECUTING AT' ORNEY
COUNTY OF KAUA'L STATE OF HAWAII
3990 KAANA STREET, SUITE 210, LTHU'E, HI 96766
TEL: (808)241-1888 FAX: (808)241-1758
prosecutor@kauai.gov
OF Shaylene Iseri-Carvalho
Prosecuting Attorney
Jake Delaplane Sam Jajich
First Deputy Prosecuting Attorney Second Deputy Prosecuting Attomi
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 Vill of the Kaua'i County Charter to include language mandating the
avoidance of conflicts of interest, as well as language that provides for the appropriate
procedures to follow when a conflict arises. In support of this request,the OPA provides
the following suggested language for Article VIII:
Sec._- Conflicting Representation Prohibited
(a) The county attorney shall not represent a county client if the representation of that
client will be directly adverse to another county client, unless:
(1) The county attorney reasonably believes the representation will not adversely
affect the relationship with the other client, and
(2) Each client consents after consultation.
(h) The county attorney shall not represent a county client if the representation of that
client may be materially limited by the county attorney's responsibilities to another
coumy client or to a third person, or to the county attorney's own interests, unless:
The county attorney reasonably believes the representation will not be adversely
affected, and
(2) The client consents after consultation.
Deputy Prosecuting Attorneys:
Lisa R.Ann Melinda K.Mendes Gary Nelson
Jared Auna John LL Murphy Ramsey Ross
Lance Kobashigawa Rebecca A.Vogt
An Filual Opportunity Eutployer CRC 2012-05
Sec. Mandatory Disclosure and Engagement of Special Counsel.
(a) Prior to each instance of representation, the county attorney shall conduct an
assessment to ascertain whether the representation constitutes a conflict or potential
conflict as defined in section Conflicting Representation.
(h) The county attorney shall disclose to the client the conflict or potential for conflict at
the outset of each instance of representation. The disclosure shall anticipate all
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 affected clients
who do not consent to the concurrent representation to consult with and retain
independent counsel.
(d) Independent counsel shall be retained in accordance with the procurement law and
the county charter, and the fees established through a method by the procurement
law. Independent counsel fees shall be paid from the special counsel appropriation
in the budget of the office of the county attorney. If the funds in the special counsel
appropriation are insufficient, fees will be paid from the funds designated by the
county council.
(e) The county attorney's duties to assess conflicts, disclose conflicts or the potential for
conflicts and allow consultation and retention by independent counsel shall continue
throughout the representation.
Sec. Penalties.
In addition to penalties prescribed by law, any lawyer violating this provision may be subject to
termination. The termination process shall be initiated by the County Council bypassing a
resolution ordering the Mayor to terminate the County Attorney. Furthermore, the County
Council shall transmit a letter to the Office of Disciplinary Counsel to disbar the County
Attorney.
Sec. -— No Conflict with Federal or State Law.
Alothing in this Article shall be interpreted or applied so as to create any requirement, power or
duty in conflict with any federal or state law.
SECTION 3. Severability. If any provision of this Article, or the application thereof to any
person or circumstance is held invalid, the invalidity does not affect other provisions or
applications of the Article which can be given effect without the invalid provision or application,
and to this end the provisions of this Article are severable."
Mahar,
C
Shaylene Iseri-Carvalho
Prosecuting Attorney
ON
ARTICLE VIIX
COUNTY ATTORNEY
Section 8 . 01. Organization. There shall be an office of the county
attorney which shall be headed by the county attorney.
Section 8 . 02. ADnointment 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 paid
for said services.
Section 8 . 07. 'Service of Legal Process. Legal process against the
county shall be served upon the county attorney or any of his
deputies.
1-1�' (4-
Suggested Changes Ym County Attorney(Article VUU from Community Input:
D.O2—Appointment and Removal—Both the Mayor and the Council shall have the power to appoint,
dis!�tpline and remove the County Attorney, The mayor may appoint and remove the County Attorne
with the vote of 213 approval Lrom the Council. Also a a e e
Attorne�with a vote oL two-thirds majority, with the approval of the Mayor. If the Mayor does not
ap ointment or the removal of the County Attorney, the Council has the power t
wrove either the app
override Mayor's approval with a Lull approval vote of the Council.
`
8.03 ' —shall have engaged in the practice of law |n the State of Hawaii for atleast
[three]five years.
8.&4—Powers, Duties — in all its parts, is operating
, and Functions in accordance with all county, state, and Lederal lows.
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. |f the issues are not
resolved,then it shall gotocourt)
8.__—Yearly Review— The County Attomey,shall be subiect to the reappointment process(exactly one
�ear to the dote of ap
pointment or reappointmenVjor speci�Lied date each yearb) The County Attome
shall only be reappointed with a two-thirds majority approval vote from the Council and confirmed b
the Mayor. During this process, the Council in the presence of the Mayor and Prosecuting Attorney,
shall review the actions of the County Attorney in order to determine whether or not he or she has
appropriately served their function. If the County Attomez is not reappointed,, he or she shall
immediately forfeit his or her office. In the interim until the next County Attomey has been appointed,
the First Deputy County Attorney shall serve as Acting-County Attorney,
8.__—Special Review—!L the County Attorney has taken an action or given an opinion or counsel that is
either illegal or contrary to low, it shall immediately require a special review by the Council, in the
presence of the Mavor and the Prosecuting Attomey. for the removal of the County Attomey.
Revised 6115-8112
ORDINANCE NO. BILL NO. 2438
A BILL FOR AN ORDIINTANCE -'MENDING CHAPTER 3, KAUAI
COUNTY CODE, 1987, AS AMENDED, RELATING TO THE REPRESENTATION
OF CLIENTS NVITfi CONFLICTING INTERESTS BY THE OFFICE OF THE
COUNTY ATTORNEY
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF KAUAI. STATE
OF HAWAII:
SECTION 1. Findings and Purpose. As the only source of legal
representation and advice for the County, the Office of the County Attorney has a
significant influence on the actions of the Legislative and Administrative branches
�n
of County government. Recently and in the past, questions have been raised about
the concurrent representation by the County Attorney of officials and agencies on
opposite sides of the same issues. such as the May- or and certain Boards and
Commissions and the Mayor and the County Council.
Rule 1.7 of the Hawaii Rules of Professional Conduct prohibits a lawyer from
representing a client if the representation will be directly adverse to another client
or if the -representation may be materially limited by the lawyer's responsibilities to
another client, a third person, or the lawyer's own interests, unless the client
consents to the concurrent representation.
The Council of the County of Kaua'l finds and declares that to preserve the
health, safety, and welfare of Kauai, all lawyers employed in the Office of the
County Attorney should follow a procedure to ensure their compliance with Rule 1.7
and that client employees, departments, officials or agencies should be able to hire
independent legal counsel when they do not consent to concurrent representation.
The purpose of this bill is to ensure the availability of competent and
unbiased legal advice for county officials and agencies by ensuring that the Office of
the County Attorney takes the steps necessary to 'avoid conflicts of interest
consistent with the Hawaii Rules of Professional Conduct for lawyers.
This bill is an exercise of the Council's authority under Kaua'l County
Charter sections 3.01 and 8.06. This ordinance specifies the conditions under which
special counsel is retained in the event the Office of the County Attorney has a
conflict of interest.
SECTION 2. The Kaua'i County Code 1987 is hereby amended by
adding a new Article 6 to Chapter 3 to be appropriately designated'and to read as
follows:
"ARTICLE 6. REPRESENTATION OF CLIENTS WITH CONFLICTING
INTERESTS BY THE OFFICE OF THE COUNTY ATTORNEY
I eRd
See. I Definitions.
As used in this Article,, unless the content clearly requires otherwise:
"County Attorney" means the County Attorney and all deputy county
attorneys.
"Client" or "county client" means county departments; agencies, including the
council, council services, and office of the county auditor; boards, commissions, and
all officers and employees entitled to representation be or advice from the county
attorney under section 8.04 of the Kaua'I County Charter.
"Reasonable" or -`reasonable" when used in relation to conduct by a lawyer
denotes the conduct of a reasonabfv,prudent and competent lawyer.
"Reasonable belief' or "reasonably believes" when used in reference to a
lawyer denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
"Reasonably should know" when used in reference to a lawyer denotes that a
lawyer of reasonable prudence and competence would ascertain the matter in
question.
See. 2 Conflicting Representation Prohibited.
(a) The county attorney shall not represent a county client if the
representation of that client will be directly adverse to another county client,
unless:
(1) The county attorney reasonably believes the representation will not
adversely affect the relationship with the other client, and
(2) Each client consents after consultation.
(b) i The county attorney shall not represent a county client if the
representation of that client may be materially limited by the county attorney's
responsibilities to another 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 affected, and
(2) The client consents after consultation.
See. 3 Mandatory Disclosure and Engagement of Special Counsel.
(a) Prior to each instance of representation, the County attorney shall
conduct an assessment to ascertain whether the representation constitutes a
conflict or potential conflict as defined in section 2, Conflicting Representation.
(b) The County Attorney shall disclose to the client the conflict or
potential for conflict at the outset of each instance of representation. The disclosure
shall anticipate all reasonably possible scenarios and shall include an explanation
2
of the implications of the common representation and the advantages and risks
involved.
(c) The County Attorney's duties to assess conflicts, disclose conflicts or
the potential for conflicts and allow consultation and retention by independent
counsel shall continue throughout the representation.
See. 4 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 by passing a resolution ordering the Mayor to terminate the County
Attorney. Furthermore, the County Council shall transmit a letter to the Office ,f
Disciplinary Counsel to disbar the County Attorney.
See. 5 No Conflict with Federal or State Law.
- Nothing in this Article shall be interpreted or applied so as to create any
requirement.
, power or duty in conflict with any federal or state law."
SECTION 3. Severability. If any provision of this Article, or the
application thereof to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of the Article which can be given effect
without the invalid provision or application, and to this end the provisions of this
Article are severable.
SECTION 4. This ordinance shall take effect 60 days after its approval.
Introduced by:
Jay Furfar
Date of Introduction:
Uhu'e, Kaua`i. Hawai1
CERTIFICATE OF THE COUNTY CLERK
I hereby certifx, that heretofore attached is a true and correct copy of Bill
No. 2438, which was passed on first reading and ordered to print by the Council
of the County of Kaua'i at its meeting held on June 13, 2012:
FOR PASSAGE: Bynum,, Chang., Kuali'i, Nakamura, Rapozo, TOTAL - 7.
Yukimura. Furfaro
AGAINST PASSAGE: None TOTAL - 0,
EXCUSED & NOT VOTING: None TOTAL - 0.
Mhu'e. Hawai`i
June 13, 2012 Ricky Watanabe
County Clerk, County of Kaua'i
OFFICE OF THE PROSECUTING Al ['ORNEY
COUNTY OF KAUAI, STATE OF HAWAH
3990 KAANA STREET, SUITE 210, LTHU'E, HI 96766
TEL: (808)241-1888 FAX: (808)241-1758
prosecutorCwkauai,gov
OF Shaylene Iseri-Carvalho
Jake Delaplane Prosecuting Attorney Sam Jajich
First Deputy Prosecuting Attorney Second Deputy Prosecuting Attome,
April 10, 2012
TO: Charter Review Commission
FR: Prosecuting Attorney Shaylene Iseri-Carvalho
RE: Proposed Charter Amendments Relating to the Police Department
The Office of the Prosecuting Attorney hereby requests an agenda item on the April
23, 2012 Charter Review Commission Agenda relating to a proposed amendment to Article
X1 of the Kaua'i County Charter. The OPA is requesting an item discussing an amendment
to the Article X1 of the Charter providing for a Senior Legal Adviser, appointed by the Police
Chief, to serve as legal adviser and counsel for the Police Chief. Specific language of this
Charter Amendment will be provided from testimony submitted at the Charter Review
Meeting.
Mahalo,
jZ4 L-
Shaylene Iseri-Carvalho
Prosecuting Attorney
CRC 2012-06
Deputy Prosecuting Attorneys:
Lisa R,Arin Melinda K.Mendes Gary Nelson
Jared Auna John H,Nlurphv Ramsey Ross
Lance Kobashigawa Rebecca A,Vogt
An Erica!Opportzinity Employer
ARTICLE XX
POLICE DLVPAR21ONT
Section 11 - 01 . Organization. There shall be a police department
consisting of A police commission, a chief of police and the
necessary staff. (Amended 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 shal3l. hold regular public meetings
at a designated time and place. (Amended 1984, 2006)
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 least 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 shall 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
shall be the administrative head of the police department and
shall:
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.
B,. Train, equip, maintain and supervise the force of police
officers .
C. Be responsible for traffic safety and traffic safety
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. (Amended 1984)
boo Itt &4
(As of February 20, 2001)
Section 5-201. Organization--
There shall be a department of the corporation counsel headed by a corporation counsel
who shall be appointed by the mayor,with the approval of the council, and who may be removed
by the mayor.
(As of February 20, 2001)
Section 5-202. Corporation Counsel, Qualifications--
The corporation counsel shall be an attorney licensed to practice and in good standing
before the supreme court of the state and who shall have engaged in the practice of law for at
least five years.
(As of February 20, 2001)
Section 5-203. Powers, Duties and Functions--
The corporation counsel shall serve as the chief legal adviser and legal representative of
all agencies, the council and all officers and employees in matters relating to their official
powers and duties. Except as otherwise provided by federal or state law, the determination
whether a matter relates to official powers and duties shall be made by the corporation counsel
and shall include, among other things, consideration of case law applicable to the concept of
course and scope of employment. The corporation counsel shall represent the city in all legal
proceedings, except as otherwise provided in this charter. The corporation counsel shall perform
all other services incident to the office as may be required by this charter or by law. (Reno. 78-
277 and 83-357; 1992 General Election Charter Amendment Question No. 22)
(As of ebruary 20, 2001)
Section 5-204, Special Deputies and Counsel—
I. Special deputies may be appointed by the corporation counsel, with the approval
of the city council. Such appointments shall be based on a contract specifying the compensation,
if any, to be paid a special deputy. The compensation shall be based on the prevailing rate for
the specified services to be rendered.
2. No special counsel shall be retained to represent the city or any officer or
executive agency, except as otherwise provided in this charter.
I Where the corporation counsel has been disqualified,special counsel may be
retained by any officer or employee in matters relating to the official powers and duties of such
officer or employee. The mayor or any councilmember may also retain special counsel in
impeachment proceedings. The council shall appropriate the necessary funds to pay reasonable
fees for such legal services.
4. Except in circumstances where the corporation counsel has been disqualified, any
special deputy or counsel appointed under this section shall be a subordinate of the corporation
counsel. (Reno: 78-237 and 8 -357; 1992 General Election Charter Amendment Question
Mo. 22
0 a
(As of Febniary 20, 2001)
Section 5-205. Service of Legal Process--
Legal process against the city shall be served upon the corporation counsel or any of the
corporation counsel's deputies,and in default of finding the corporation counsel or any deputy,
upon the mayor, and in default of finding the mayor, then upon any councilmember. When such
service is made upon any officer other than the corporation counsel, such officer shall promptly
notify the corporation counsel. (Reso. 83-357 90-295 and 95-205)
(As of February 20, 2001)
Section 6-1601. Organization--
There shall be a police department which shall consist of a chief of police, a police
commission and the necessary staff. The chief of police shall be the administrative head of the
police department.
(As of Febniary 20, 2001)
Section 6-1602. Statement of Policy—
It is hereby declared to be the purpose of this chapter of the charter to establish in the city
a system of law enforcement which shall be based on due regard for the constitutional rights of
all persons, which shall promote the highest possible degree of mutual respect between law
enforcement officers and the people of the city and which shall provide for the expeditious
apprehension of those who violate the law. In order that these purposes may be achieved, the
police department shall be conducted in accordance with the following:
(a) Standards of recruitment shall be designed to attract into the service
persons with high degrees of education, intelligence and personal stability.
(b) Promotions shall be based upon fair standards of merit and ability which
shall include peacekeeping and law enforcement criteria.
(c) Grievance procedures for the people and police officers of the city shall be
based on due regard for their constitutional rights.
6s ofFebruary 20, 2001)
Section 6-8603. Chief of Police—
). The chief ofpolice shall he appointed 6v the police commission for a term qf five
years. The chief shall have had a minimum of five years of training and experience iolaw
enforcement work, uileast three years of which shall have been ioaresponsible administrative
capacity. The chief shall not serve beyond the expiration ofuternzooleoaappoiotcdmgaiobydze
police commission. If desiring to do so, the police commission may appoint an incumbent chief
bra new term without first engaging iouo applicant solicitation and selection process.
2. 0m§/o:the expiration of term 0o which appointed, the chief may he removed by
the police commission only for cause. Am prerequisites Um removal, the chief shall bc given a
written statement ofthe cbocgc and uoopportunity for hearing before the police commission.
3. Gross or continuous zuulucboioietradon shall beucause nuD5oioot for removal of
the chief. Before removing the chief for such cause,the commission shall give the chief written
notice o[and u reasonable period hn cure the gross or continuous maladministration. If the gross
or continuous maladministration is not cured to the c0000iamtoo'm satisfaction within the period
given, the commission may proceed to remove the chief in accordance with subsection 2.
This subsection shall not hc construed as:
(a) Making gross or continuous maladministration the only cause sufficient
for removal Vfu chief, or
Hb\ Requiring the commission k)give the notice and opportunity for cure
specified under this subsection when removing u chief for u cause other than gross or
continuous maladministration.
(Resu 83-357; 1998 General Election Charter Amendment Question No. 0(1))
(As of Februari,20, 2001)
Section 6-1604. Powers, Duties and Functions—
The chief of police shall:
(a) Be responsible for the preservation of the public peace; the protection of
the rights of persons and property; the prevention of crime; the detection and arrest of
offenders against the law and the enforcement and prevention of violations of all laws of
the state and city ordinances and all rules and regulations made in accordance tLerewith.
(b) Train, equip, maintain and supervise the force of police officers.
(c) Serve process and notices both in civil and criminal proceedings.
(d) Promulgate rules and regulations necessary for the organization and
internal administration of the department.
(e) Prepare and, when deemed necessary, update a five-year plan of goals and
objectives for the police department. The chief shall submit the plan and each update to
the commission for review and recommendations.
(f) Appoint the deputy chiefs of police. A deputy chief shall have the right of
reinstatement to a previously occupied civil service position in the police department
when(1)the deputy chief had held a permanent appointment to the position immediately
before appointment to the office of deputy chief, and(2) the deputy chiefs tenure in the
office has not been terminated for cause. If exercising the right, the deputy chief shall be
reinstated, without necessity of examination, to the former civil service position
immediately following termination of tenure as deputy chief.
(g) Perform such other duties as may be required by this charter or by law.
(1998 General Election Charter Amendment Question No. 6(ff))
(As of ebruary 20, 2001)
Section 6-1605. Police Commission--
There shall be a police commission which shall consist of seven members. The
commission may appoint such staff and engage consultants as is necessary to assist it in the
performance of its duties. The commission shall be governed by the provisions of Section
13-103 of this charter.
(As of February 20, 2001)
Section 6-1606. Powers, Duties and Functions--
The police commission shall:
(a) Adopt such rules as it may consider necessary for the conduct of its
business and review rules and regulations for the administration of the department.
(b) Review the annual budget prepared by the chief of police and may make
recommendations thereon to the mayor.
(c) Submit an annual report to the mayor and the city council.
(d) 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. A summary of the charges filed and their disposition shall
be included in the annual report of the commission.
(e) Review and, if deemed necessary, make recommendations on the five-year
plan and any update of goals and objectives for the police department which is submitted
by the chief of police. The commission shall not have the power to approve,modify, or
reject the plan or any update.
(f) Compare at least annually the actual achievements of the police
department against the goals and objectives in the five-year plan or latest update submitted
by the chief.
(g) Evaluate at least annually the performance of duties by the chief of police.
Except for purposes of inquiry or as otherwise provided in this charter,neither the
commission nor its members shall interfere in any way with the administrative affairs of the
department. (1998 General Election Charter Amendment Question No. 6(]11))
(As of February 20, 2001)
Section 6-1607. Suspension; Removal; Appeals--
l. Suspension or removal of any officer or employee shall be made pursuant to law
and the rules and regulations of the department.
2. Appeals from personnel actions shall be in accordance with Section 6-1108 of this
charter. (1998 Reorganization)
(As of Febmary 20, 2001)
Section 13-103. Boards and Commissions— 39
Except as otherwise provided by this charter or by law, all boards and commissions
established by this charter or by ordinance shall be governed by the following provisions:
(a) To be eligible for appointment to a board or commission, a person shall be
a duly registered voter of the city.
(b) All members shall be appointed by the mayor and confirmed by the
council.
(c) All appointed members shall serve for staggered terms of five years, and
they shall serve until their successors have been appointed and qualified. No person shall
serve on the same board for more than two consecutive full terms or for more than ten
consecutive years,whichever is greater. The initial appointments shall be as follows:
(1) Five members: One member each to serve for five, four,
three, two,and one year, respectively.
(2) Seven members: Two members to serve for five years, one
member for four years, two members for
three years, one member for two years,and
one member for one year.
(3) Nine members: Two members each to serve for five, four,
three,and two years,respectively, and one
member for one year.
Each succeeding appointment shall be for a term ending five years from the date
of the expiration of the term for which the predecessor had been appointed.
(d) Any vacancy occurring other than by expiration of the term of office shall
be filled for the remainder of such unexpired term in the same manner as for an original
appointment.
(e) Temporary vacancies shall be filled by the mayor as provided by
ordinance.
(f) A chair shall be elected annually by members from the membership.
(g) A majority of the members shall constitute a quorum.
(h) All meetings shall be held in city hall or other public places.
(i) The affirmative vote of a majority of the entire membership shall be
necessary to take any action, and such action shall be made at a meeting open to the
public.
0) All members shall be entitled to be reimbursed for travelling and other
necessary expenses incurred by them in the performance of their official duties.
(k) All appointed members may be compensated for their service as provided
by ordinance.
(1) Policies and procedures for the removal of members of boards and
commissions shall be as provided by ordinance.
'`'"Except as otherwise provided by law"does not authorize council to enact an ordinance whose provisions
contradict charter provisions;under such circumstances the term"law"does not include ordinances. Fasi v.City
Council of the City and County of Honolulu,72 Haw.513,823 R2d 742(1992).
(As of Febmary 20, 2001)
(Reno. 83-357; 1992 General Election Charter Amendment Question Nos. 19 and 32A(2); Reso.
96-135)
Mau i Cj-,Av4cr
6. Adopt rules for the classification, storage and destruction of all
records of the county.
7. Perform such other functions as may be prescribed by the council
or law.
ARTICLE 6
EXECUTIVE BRANCH
Section 6-1. Executive Power. The executive power of the county shall
be vested in and exercised by the executive branch, which shall be headed by
the mayor, except as otherwise provided by this charter.
Section 6-2. Appointment and Removal of Officers and Employees.
1, The administrative head of a department may not appoint more
than the staff for which appropriations have been made by the council,
2. No appointing authority shall appoint any person to any office or
position exempted from civil service until satisfied by proper investigation that the
person to be appointed is fully qualified by experience and ability to perform the
duties of the office or position.
3. The term of office of any administrative head of a department who
is appointed by the mayor, including the corporation counsel and the prosecuting
attorney, shall end with the term of office of the mayor, except that any such
administrative head may be earlier removed as provided for in this charter. Such
officers shall not hold over more than sixty (60) days after their respective terms
of office, and shall immediately vacate their respective offices at the end of the
60-day period or upon the appointment of a successor in accordance with this
charter, whichever occurs first.
4. The mayor shall have the authority to appoint, on a temporary
basis, an administrative head of any department, provided that such department
is one where the administrative head is appointed by the mayor,
5. Within sixty (60) days of taking office, or within sixty (60) days after
a vacancy is created, the mayor shall appoint the corporation counsel and
prosecuting attorney with written notice of the appointment to the council, The
council shall confirm or deny the confirmation within sixty (60) days after
receiving notice of the appointment by the mayor. If the council does not act
within the 60-day period, the appointment shall be deemed to be confirmed. The
corporation counsel and prosecuting attorney shall take office upon appointment
but shall not continue in office if the council denies confirmation, If the
appointment is not confirmed by the council, the mayor shall make a new
appointment within sixty (60) days of the council's denial, and the council shall
confirm or deny within sixty (60) days after receiving notice of the new
appointment by the mayor. If council does not act within the 60-day period, the
appointment shall be deemed to be confirmed. (Amended 1992, 1984)
10
ARTICLE 8
COUNTY DEPARTMENTS
The county departments hereinafter described are hereby recognized and
continued. X
CHAPTER Z"
DEPARTMENT OF MANAGEMENT .Z
Section 8-1.1. Organization. There shall,,/,be a department of
management consisting of a managing director and the4necessary staff.
fi
Section 8-1.2. Managing Director. Tie managing director shall be
appointed and may be removed by the mayor,//The managing director shall have
had five years of experience in an administrative capacity, either in public or
private business, or both.
Section 8-1.3. Powers, Dutie and Functions. The managing director
shall:
1 Act as the principal nagement aid to the mayor.
2. Supervise the ministrative functions of those agencies,
departments, boards and com fissions assigned by the mayor.
1 Evaluate the nagement and performance of each agency.
4. Prescribe st dards of administrative practice to be followed by all
agencies under his or he supervision.
5. Supervis/ and coordinate those functions described in Subsections
7-5.6, 7-5.7 and 7-5.8i
6, Perforri all other duties and functions required by this charter or
assigned by the rnnor.
CHAPTER 2
DEPARTMENT OF THE CORPORATION COUNSEL
Section 8-2.1. Organization. There shall be a department of the
corporation counsel consisting of the corporation counsel and the necessary
staff.
Section 8-2.2. Corporation Counsel. The corporation counsel shall be
appointed by the mayor with the approval of the council and may be removed by
the mayor with the approval of the council. The corporation counsel shall be an
attorney licensed to practice and in good standing before the Supreme Court of
the State and shall have engaged in the practice of law for at least three years,
(Amended 1992)
14
Section 8-2.3. Powers, Duties, and Functions. The corporation
counsel shall:
1. Appoint such deputy corporation counsel and necessary staff as
shall be authorized by the council. Deputy corporation counsel shall be exempt
from civil service and shall serve at the pleasure of the corporation counsel.
2. Be the chief legal advisor and legal representative of the County of
Maui: of the council, the mayor, all departments, and all boards and
commissions: and of all officers and employees in matters relating to their official
duties.
3. Represent the county in all legal proceedings.
4. Perform such other duties and functions as may be incident to the
department or required by law. (Amended 2002)
Section 8-2.4. Service of Legal Process. Legal process against the
county shall be served upon the corporation counsel or any of the deputies.
CHAPTER 3
DEPARTMENT OF THE PROSECUTING ATTORNEY
Section 8-3.1. Organization. There shall be a department of the
prosecuting attorney consisting of a prosecuting attorney and thetecessary staff.
Section 8-3.2. Prosecuting Attorney. The prosecuhg attorney shall be
appointed by the mayor with the approval of the council a
/nd may be removed by
the mayor with the approval of the council. The prosecuting attorney shall be an
re the Supreme Court of
attorney licensed to practice and in good standing P111 o
�V
-
the State and shall have engaged in the practice V, law for at least three years.
(Amended 1992)
Section 8-3.3. Powers, Duties d Functions. The prosecuting
attorney shall:
1. Appoint such deputy pros uting attorneys and necessary staff as
Powers,
deputy Duties d
pros uting '
uty prosecuting
u
p r
shall be authorized by the council. D uty prosecuting attorneys shall be exempt
council.
from civil service and shall serve at e pleasure of the prosecuting attorney.
J s i
courts in t 0 t
2. Attend all cot in t e county and conduct, on behalf of the people,
t
all prosecutions therein for o uses against the laws of the State and the
ordinances and rules of the county.
ty
y
3. Appear in eve/ry criminal case where there is a change of venue
from the courts in the cou/ I and prosecute the same in any jurisdiction to which
the same is changed orlp6moved.
4. Institute proceedings, or direct the chief of police to do so, before a
judge of a court of competent jurisdiction for the arrest of persons charged with or
reasonably suspected of public offenses when the prosecuting attorney has
information that any such offenses have been committed, and for that purpose
take charge of cniminal cases before a judge of a court of competent jurisdiction,
15
of the council. The director of the department of water supply shall have,-°a
minimum of five years of experience in a management capacity, either inpbiblic
service or private business, or both. The deputy director of the department of
water supply shall be appointed by the mayor and may be 7remed by the
I c
mayor. The director or deputy of the department of water su ly 'shall be a
registered engineer. (Amended 2002, 1988)
Section 8-11.6. Powers, Duties and Functions/ The director of the
department of water supply shall: //
1. Administer the affairs of the departm)afit of water supply, and be
responsible for the day-to-day management and/,,control of all water systems of
the county.
2. Prepare long-range capital inforovement plans and up-to-date
water use and development plans for rev)ew by the board of water supply and
enactment by the council by ordinance.
3. Implement enacted Ion
/g-range capital improvement plans and
water use and development plans. /
4. Prepare an annual'.,b'perating and capital budget for the board of
water supply's review and submif the department of water supply's request for an
annual appropriation to the mayor.
5. Perform such/other duties and functions as shall be prescribed by
law. (Amended 2002, 1968)
Section 8-11-.1. Revenues. The revenues of the department of water
supply shall be kept in a separate fund and shall be such as to make the
department of water supply self-supporting, provided that the council may issue
general obligation bonds on behalf of the department of water supply and may
provide capital improvement appropriations for the department of water supply.
(Amended 2002, 1988)
CHAPTER 12
DEPARTMENT OF POLICE
Section 8-12.1. Organization. There shall be a department of police
consisting of a police commission, a chief of police, and the necessary staff,
Section 8-12.2. Police Commission. The police commission shall
consist of nine members appointed by the mayor with the approval of the council.
The police commission shall:
1. Adopt such rules as it may consider necessary for the conduct of its
business and regulation of the matters committed to its charge by law.
2. Review and submit to the mayor the department's request for an
annual appropriation for the operation of the department.
1 Receive, review and investigate any charges brought forth by the
public against the conduct of the department or any of its members and submit a
26
written report of its findings and recommendations to the chief of police for the
chiefs disposition.
4. Have such other powers and duties as may be provided by law,
(Amended 1992)
Section 8-12.3. Chief of Police. The chief of police shall be appointed
and may be removed by the police commission. The chief may be removed by
the police commission only after being informed in writing of the charges which
are resulting in the chiefs dismissal, and after being given a hearing before the
commission. The chief of police shall have had a minimum of five years of
experience in law enforcement, at least three of which shall have been in an
administrative capacity.
Section 8-12.4. Duties and Functions of the Chief of Police. The chief
of police shall:
1. Be the administrative head of the department of police.
2. Be responsible for the preservation of the public peace, prevention
of crime, detection and arrest of offenders against the law, protection of rights of
persons and property, and enforcement and prevention of violations of all laws of
the State and ordinances of the county and all rules made in accordance
therewith.
3. Be responsible for traffic safety and traffic safety education,
4. Train, equip, maintain and supervise the force of police officers and
employees of the department.
5. Have such other powers and duties as may be assigned by the
mayor or as may be provided by law.
CHAPTER 13
DEPARTMENT OF LIQUOR CONTROL
Section 8-13.1. Organization. There shall be a ,department of liquor
control consisting of a liquor control commission, a Iiqerr control adjudication
board, a director of liquor control, and the necessary st
Section 8-13.2. Liquor Control Corn ission. The liquor control
commission shall consist of nine members pointed by the mayor with the
approval of the council.
The liquor control commission shat .
1, Prepare and submit a re est for an annual appropriation for the
operation of the department.
2. Adopt rules having e force and effect of law for the administration
of liquor control in the county a to carry out provisions of the liquor control laws
of the State, including, but n limited to, the fixing of liquor license fees.
27
Section 6-4.2. Appointment and Removal.
The director of information technology shall be appointed by the mayor, confirmed by
the council and may be removed by the mayor.
(2010. Prop. 9. sec. and sec, 3)
Section 6-4.3. Qualifications.
The director of information technology shall have had minirnum of five nears of
experience in the field of electronic data processing. telec /
./cYmmunications networkin . and g
development, implementation and operation of business-ori fed applications, at least three years
of which shall have been in an administrative and marida'erial capacity in a computer system
environment at least comparable to that of the countysystem.
(2010, Prop. 9. sec. 2 and sec. 3
Section 6-4.4. Powers,Duties and F unc ir t*
s
The director of information technol y shall:
(a) Operate the central X
d processing system, and coordinate and oversee the
operations of depart ental data processing systems, except for those systems
maintained by the department of water supply.
depart
(b) Provide techni I data processing and telecommunication to
�! expertise in
applicable de ments and agencies of the county.
applicable n
(c) Assist in t development of management information.
Assist
(d) Advise e mayor on matters relating to data processing and telecommunication.e
(e) P rt o such other duties as may be required by law.
(1-0 10. Prop. 9, sec and sec. 3.)
CHAPTER 5
CORPOWNTION COUNSEL
Section 6-5.1. Organization.
There shall be a department of the corporation counsel consisting of the corporation
counsel, assistant corporation counsel and the necessary staff.
(2000. Prop. 2, sec. 1.)
Section 6-5.2. Appointment and Removal.
The corporation counsel shall be appointed by the mayor, confirmed by the council and
may be removed by the mayor with the approval of the council. The corporation counsel shall be
an attorney licensed to practice and in good standing before the Supreme Court of the State of
Hawaii.
i.
(1979, Prop. ]-2- 1990, Prop. 14. sec. 1., 2000. Prop, 2. sec. 1: 2010. Prop. 7.sec, 16.)
Section 6-5.3. Powers, Duties and Functions.
The corporation counsel shall be the chief legal advisor and legal representative of all
county agencies, the council and all officers and employees in matters related to their official
powers and duties. The corporation counsel shall represent the county in all civil legal
proceedings and shall perform all other services incident to the office as may be required by law.
15
`
The corporation counsel shall, bnnevcr be prohibited from representing any elected officer in
impeachment proceedings.
(197/9. Prop. 12� 1979, Prop. 13; 1990, Prop. 14. sec. l: 2OOU, Prop. 2, sec. |j
Section 6-5.4. Assistant Corporation Counsel.
The assistant corporation counsel shall be appointed by the corporation counsel and may
be removed by the corporation counsel. The assistant corporation counsel shall bcanattorney
licensed to practice and in good standing before the Supreme Court of the State of Hawaii.
(2880, Prop. 22. sec. \l
Huu0on 6-5.5, Special Counsel.
The council may, by two-thirds vote of its entire membership, authorize the cnop|oymncot
of special counsel for any ypcuiu| matter presenting orcd necessity for such cooployrocnL Any
such authorization ybu|} specify the compensation, if any. to be paid for said services.
(2U0O, Prop. 2` sec. lj
Section 6-5.6. Term nfOffice.
Notwithstanding Section 13-8, the tcon of office of the corporation counsel, assistant
corporation counsel and deputies ohu|| be co-terminous with that ofthe mayor: provided that
vvbcrc a successor has not been appointed and confirmed, the corporation counsel shall continue
in otDuc pending such appointment and conUnoutiou, but in no event sbu|| the corporation
counsel continue in office beyond three months,whether acting or otherwise.
CHAPTER 6
DEPARTMENT OF FINANCE
Section 6-6.1. Organization.
There shall be a department of finance consisting o the director of finance and the
necessary staff.
Section 6-6.2. Appointment and Removal.
The director of finance shall be aippoi d by the mayor. confirmed by the council and
fi
may be removed by the mavor. The financ irector shall have had a minimum of five years of
training and experience in budgeting or ated fields, at least three years of which shall have
been in a responsible supervisory cap:a i y'. A deputy finance director shall have had a minimum
of three vears of training and experie e in a responsible financial position.
Section 6-6.3. Powers, Dut s and Functions.
its
The director offina=e shall be the finance officer of the county and shall:
(a) Assist the/f�navor in the preparation and execution'of the operating budget.
operatin&�rogram and capital budget.
(b) Collectspecial assessments as provided by and subject to law.
^
^
Section 7-1.4. Powers,Duties and Functions.
The director of human resources shall be responsib)�-- for the human resources
management program of the county with two distinct categorie��f duties. The major duties shall
be in the areas of equal employment opportunities, -cersonnel development, personnel
. personnel relations and personnel welfare i luding employee satety and workers'
compensation. The secondary duties of the direct shall be the administration of the civil
service system and the maintenance of the aims nd mechanics prescribed by statute. The
director shall be the administrative head of t department of human resources and shall be
responsible for the proper conduct of all the7ministrative affairs of the department and for the
execution of the human resources manatz . ordinances.
lement program prescribed by this charter.
laws and reaulations. The merit appeatjs�board shall function according to statute. The director
shall provide technical and clerical staff services to the board.
Section 7-1.5. Position Cl sification Plan; Compensation.
Except as otherwis provided by law or this charter. all positions in the service of the
county shall be class=xw�iithin a position classification plan, and all persons holding such
positions shall be com nsated as provided by the compensation law of the state.
sha be/
Section 7-1.6. ministrative Supervision.
he de ment of human resources shall come under the general supervision and control
of the mayor.
CHAPTER 2
POLICE DEPARTMENT
Section 7-2.1. Organization.
There shall be a police department consisting of a police commission, a chief of police, a
deputy chief of police, and the necessary staff.
(\09O, Prop. 3` sec. lj
Section 7-2.2. Police Commission.
(a) The police commission shall consist o/nine members, One member shall bea resident uf
each council district. The members ybu|l he appointed by the mayor and confirmed by
the council lo the manner prescribed in Section 13-4.
(b) Statement ofpolicy, |tis hereby declared tobe the purpose of this chapter o[the charter
to cm1ab|imb in the county a system of \av/ eufbruecncot which mbn/| be based on due
regard for the constitutional rights of all pcceuos` vvbicb sbn|< promote the highest
possible degree of mutual respect between law enforcement officers and the people of the
county and which shall provide for the expeditious apprehension of those who violate the
|urV. In order that ibeac purposes may be achieved, the police dcpodnucot shall be
operated in accordance with the following: `
(|) Standards ofrecruitment shall bc designed to attract into the service persons with
high degrees o[education, intelligence and personal stability.
24
(2) Promotions obo/l be bused upon fair standards nf merit and ability which ebuU
iou6ue peacekeeping and law enforcement criteria,
(3) Grievance procedures for the people and police officers of the county yhud) be
based ou due regard for their constitutional rights.
(c) Powers and Duties. The police commission shall:
(l) Adopt such rules as it may consider necessary for the conduct of its business and
the ncgolo1ioo of the matters committed to its charge and may review the rules and
regulations nf the department.
(2) Flcvievv the on000l budget prepared by the chief of police and may rnukc
recommendations thereon 10 the xnmyor and managing director.
(3) Submit mu annual report io the mayor, managing director and the council.
(4) Kcccirc, consider, and investigate charges brought by the public ogxiumi the
conduct of the department or any of its members and submit a written report of its
findings to the chief of police. A sunnrourI of the charges filed and Uuch
disposition shall be included in the annual report o/the commission. There sbuU
be budgeted sufficient funds in the annual budget of the police department for use
by the police commission to fulfill the intent nf this section.
(5) Advise the chief nf police no police-community relations.
(8) }{eriCn/ the department's oproginoo^ as deemed necessary, for the purpose of
recommending improvements to the police chief and the managing director.
(7) Evaluate at least annually the performance of the police chief and submit a report
to the mayor, managing director and the council.
(&) Hire personnel necessary to carry out its functions.
(9) Except for purposes of inquiry. uci\bcr the commission nor its members mbaU
interfere in any way with the adzuioisimUivc affairs of the department.
(1979, Prop. 13; 1990, Prop. 3, sec. |; 1994, 0nj. Nn. 93-68. sec. l; 2000, Prop. 2, sec. 7; 2000` Prop. 8,
see. 1.)
Section 7-2-3. Chief nf Police and Deputy.
The chief of police shall be appointed by the police commission and may be removed by
the police commission at its su1c discretion. Any motion for removal o[the chief o[police nnux1
contain o statement ofreasons, and the commission shall not vote To remove the chief ofpolice
unless the chief of police has been given an opportunity to respond to the statement of reasons at
u hearing before the commission. The deputy shall bc appointed bp the chief of police with the
confirmation of the police oumumoimmioo and may be removed by the chief ufpolice with the
approval of the commission. without cause being stated. The chief ofpolice shall have had u
minimum of five years of training and cspericucc in law cofbcromneot vvodc including at 1cusi
three years ium responsible administrative capacity.
(}g9O, Prop. 3.see. }.)
Section 7-2.4. Powers, Duties, and Functions oKthe Chief wKPolice.
The chief of police shall be the administrative head of the police department and shall:
(a) Be m:mpouaih|e for the preservation of the public peace, prevention of crime,
detection and arrest of offenders against the low, protection of the rights of
persons and poaperty, and enforcement and prevention of violations of all }uvwa of
the state and ordinances of the county and all regulations rnudc in occon]unuc
ihencvviib.
2�
`
(b) Train, equip, maintain, and supervise the force of police officers and employees.
(c) Promulgate rules and regulations for the organization and administration of the
police force.
(d) K4ukc pcduJiu reports 10 the police commission about the activities ofthe police
department and about actions taken on cases investigated by the police
commission.
(c) Have such other powers. duties. and functions as may be rc4oincd by the police
commission or provided by }o`p.
(1479. Prop. |J; 1990. Prop. 3, sec. lj
Section 7-2.5. Dismissal, Suspension, Demotion,wr Grievance.
The diyruissu|, uuopcnsinn, dcnnooioo, or grievance of any police oDiccc or crup|oycc in
the police department shall be under procedures set forth by civil service laws and regulations.
(l990. Prop. 3` sec. lj
Section 7-2.6. Administrative Supervision.
The police department shall come under the general supervision and control of the mayor.
through the managing director.
()490, prop. 3, sec i;2O80` Prop. 2, sec. 8j
CHAPTER3
DEPARTMENT OF LIQUOR CONTROL
Section 7-3.1. Organization.
There shall be a department of liquor control consisti of a liquor commission, a liquor
control adjudication board, a director of the department and e necessary staff.
Section 7-3.2. Liquor Commission.
There shall be a liquor commission consisting/of nine members who shall be appointed
by the mayor and confirmed by the council in t manner prescribed in Section 13-4. One
member shall be a resident of each council district. The liquor commission shall:
(a) Adopt rules and regulations aving the force and effect of law for the
administration of liquor contr�iin the county and to carry out provisions of the
liquor control laws of the St e.
(b) Grant, renew or refuse a ications for licenses for the manufacture, importation
and sale of liquor in the/ountv under applicable laws and regulations.
(c) Have such other pow s and duties as may be provided by law, not in conflict
with the provisions ofthis section.
Section 7-3.3. Liquor Contr I Adjudication Board.
There shall be a liquo�ontrol adjudication board consisting of five members who shall
be appointed b� the mayY'/r and confirmed bx the council in the manner prescribed in
Section 13-4.
The liquor contro adjudication board shall hear and deten-nine all complaints regarding,
violations of the liquor/control laws of the State. or complaints regarding violations of rules an�
26