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HomeMy WebLinkAbout2012_0723_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 8/27/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I July 23, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:05 pm End of Meeting: 5:43 pm Present Chair Patrick Stack Members: Mary Lou Barela; Ed Justus; James Nishida Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura Excused Vice-Chair Carol Suzawa Member: Joel Guy Absent Jan TenBruggencate SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:05 m with 4 Commissioners present Approval of Open Session Minutes of June 25, 2012 Mr. Justus moved to approve the minutes as Minutes circulated. Ms. Barela seconded the motion. Motion carried 4:0 Business CRC 2012-08 Final review and approval of Findings & Purpose and Ballot Questions for proposed charter amendments Section 1.03 County Elections Mr. Justus moved to approve the amendment. Mr. Nishida seconded the motion. Motion carried 4:0 Section 7.03 Mayor's Compensation Mr. Justus moved to approve the amendment. Mr. Nishida seconded the motion. Motion carried 4:0 Section 9.03 Relating to the Powers, Duties and Functions of the Prosecuting Attorney Mr. Nishida said the items listed were programs and the Charter is not the place where you assign programs. The Charter does not have to include all programs because there would not be a bus system, there would not be an Office of Elderly Affairs, and there would not be a Housing Agency. The Charter establishes the Office of the Prosecuting Attorney but the Charter Review Commission Open Session July 23, 2012 Page 2 SUBJECT DISCUSSION ACTION programs should be within the administration and not listed in the Charter. Mr. Justus thought this request was brought to the Charter Commission because the Prosecuting Office in Honolulu was sued. Honolulu was doing programs like our Prosecuting Office is doing now but the Court decided since it wasn't specified in the Charter that the Prosecuting Attorney had the ability to do these programs they lost. Attorney Winn said that was not correct. The case had to do with Peter Carlisle using public funds to promote information charging and the Courts said it was not within his purview to use public funds to do that. Mr. Nishida said he specifically asked the Prosecutor's Office what the relationship was between that case and the proposed amendment and they said there was no relationship; it was just that it was not in the Charter. These are programs and they should not be in the Charter because the Charter states what needs to be done in this office. The programs are a good idea but the Charter could restrict movement. Ms. Barela agreed with Mr. Nishida. Mr. Justus felt this would provide the Prosecuting Attorney's Office with legal protection. Mr. Justus asked if this should be in the County Code instead of the Charter. Mr.Nishida and Ms. Barela both said it should be between agencies and/or grants. It should not be dictated in the Charter what should be there or may or may not be there. Mr. Justus wanted to know what the harm would be if it did not lock Mr.Nishida moved to reject the amendment. Ms. Charter Review Commission Open Session July 23, 2012 Page 3 SUBJECT DISCUSSION ACTION anything in; if it just provides padding. Barela seconded the motion. Motion carried 4:0 Section 22.03 Submission Requirements for Initiative and Referendum Mr.Justus moved to approve the amendment. Mr. Petitions Nishida seconded the motion. Motion carried 4:0 Section 24.01 Initiation of Charter Amendments Mr. Justus moved to approve the amendment. Mr. Nishida seconded the motion. Motion carried 4:0 Section 23.02 H Relating to County Board and Commission Member Mr. Justus moved to approve the amendment. Terms Mr. Nishida seconded the motion. Motion carried 4:0 Section 29.01 Relating to Salary Commission and Section 23.01 Relating to General Provisions Mr. Nishida said he would vote against Ballot Question 3 to exclude commission or board members from the definition of the word"officer". Mr. Justus said the Salary Commission establishes salaries for officers so if members are excluded from the definition of officer and one day they decide to give the members a stipend that would exclude them. Attorney Winn clarified they would need to remove the brackets at the end of the sentence on subsection (2) if they delete the last question. Mr. Justus moved to reject Ballot Question 3 and the brackets in subsection(2). Mr. Nishida seconded the motion. Motion carried 4:0 Mr. Justus moved to approve the amendment for Ballot Question 1 and 2. Mr. Nishida seconded the motion. Motion carried 4:0 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 6/24/12) Charter Review Commission Open Session July 23, 2012 Page 4 SUBJECT DISCUSSION ACTION b. Proposed changes from Commissioner Ed Justus to Article VIII c.County Council Bill No.2438 for an ordinance amending Chapter 3,Kaua'i County Code, 1987,as amended,relating to the representation of clients with conflicting interests by the Office of the County Attorney. Mr. Justus said they voted last month to take his suggested changes for the County Attorney's Office as individual items to be discussed. §8.02—Appointment and Removal. Mr.Justus said there are concerns from the community about how the County Attorney is appointed and removed if he or she is representing the entire County but their job security is solely upon the Mayor. The suggestion is to give the Mayor and the County Council the ability to appoint or remove the County Attorney. Another suggestion is that the Mayor and the County Council both have the authority to remove upon each other's approval. More recently,it was suggested if the County Council is going to appoint or remove a County Attorney, instead of by 2/3's majority with approval of Mayor, it would have to be a vote of at least 5 Councilmembers to appoint or remove the County Attorney but you would not have to get the Mayor's approval. Another idea is instead of having the elected officials appoint and remove the County Attorney,the County Attorney would be appointed by a Commission which would provide a non-political office. A change in appointment and removal seems to be necessary and desirable since there seems to be a lot of issue with who is checking on the County Attorney and who the County Attorney is looking after. If the County Attorney is supposed to represent the legality of all branches why is the responsibility for his actions placed only upon one branch? Ms. Barela said she heard what Mr. Justus said but on the other hand the Mayor should have the ability to appoint someone they trust and who is close Charter Review Commission Open Session July 23, 2012 Page 5 SUBJECT DISCUSSION ACTION to them; it is done all the time. Ms. Barela is not troubled when people say the County Attorney only seems to support the Mayor. Different Mayors have chosen in different ways. Mayor Kusaka used a Blue Ribbon Committee and people applied for the position,names were selected based on qualifications that were set out for the Committee and the final selections were given to the Mayor. To suggest someone who is elected cannot select his or her own cabinet,because it is a legal thing,more caution is taken than the public thinks about. Mr.Nishida agreed because when he personally hires an attorney he wants to make sure that person has the qualifications,is someone he has a rapport with and can trust to help guide him through the process. The County Attorney has to be one of a close working relationship. To give the County Council the ability to hire/fire the Attorney under a Mayoral system makes it more difficult because he would have 7 bosses rather than 1. Mr. Justus said part of the issue is the County Attorney is supposed to represent the entire County. While the Mayor would want to appoint someone he trusts that is part of the problem. If your job depends on you looking out for the guy who hired you,you are going to naturally find things that will protect your boss. The idea is to remove the political pressure from the County Attorney's Office so they can equally represent all the branches. They should have multiple bosses because they are to look out after the whole system. Ms.Barela said when a community feels they have not been served right,they claim justice was not served but when it goes in their favor then justice was served. There is always that dilemma of who makes those decisions. She agreed having one boss was enough, having two is more than enough and having 6... Charter Review Commission Open Session July 23, 2012 Page 6 SUBJECT DISCUSSION ACTION Chair Stack said an elected official has many, many bosses and they are the people who put them in that job. There is an indication that the hearing on the Declaratory Ruling on the Mayor's powers may not even be assigned until after the election. The Commission should take an elevated view of this and try not to push this until after we see how the natural evolution takes place. To that extent, Chair Stack agrees with Mr. Nishida. Mr. Justus moved to defer §8.02 to the November meeting. Mr. Nishida seconded the §8.03 Qualifications motion. Motion carried 4:0 Mr.Justus said this recommendation is to increase the length of practice from three to five years because three years seems hardly adequate. Five years of practice shows more stability, staying in the state and familiarity with laws, and provides a more qualified officer. Attorney Winn asked if this applied to only the County Attorney and she thought it was interesting he specified within the State of Hawai'i versus just practicing law in general. Mr. Justus said this qualification should also apply to the Prosecuting Attorney and the amendment currently does specify within the State. Chair Stack said he thought the County Attorney should have the same or similar residency requirements as the Mayor and was not sure five years was fair. Attorney Winn said to practice law in the State of Hawai'i you have to either have passed the Bar in the State of Hawai'i or be approved by a judge for one particular case. Mr.Nishida did not think the residency period had been an issue so it could be three years or five years. Charter Review Commission Open Session July 23, 2012 Page 7 SUBJECT DISCUSSION ACTION Mr. Justus felt the five year residency would help get more qualified people operating in the government. Mr. Justus asked if the next step would be to ask for a legal review. Attorney Winn advised he would need to provide the amendment with the changes he wants the Commission to approve and then it would go for legal review. Mr. Justus said he would provide §8.03 in its full stated form as a potential charter amendment change. Mr. Justus moved to defer the full amendment for §8.03 to the August agenda for discussion. Mr. Nishida seconded the motion. Motion §8.04 Powers,Duties, and Functions carried 4:0 Chair Stack said an important point to remember is the County Attorney has more than one client. Attorney Winn said to talk about who is the client is very complicated because their client is the County through its representatives such as the Commission, the Mayor, and the County Council. Only lately has it been very public where the sides are clearly separated. If you look at the Rules of Professional Conduct as to government attorneys, it says the County as a whole through its constituents, so it is not individually the Mayor or the County Council; for the most part the County is our client. Mr. Justus said maybe this was just reiterating and may not necessarily need to be included He or she shall ensure that the county, in all its parts, is operating in accordance with all county, state, and federal laws. Charter Review Commission Open Session July 23, 2012 Page 8 SUBJECT DISCUSSION ACTION Attorney Winn said all officers are required to take the oath of office which states basically the same thing. Mr. Justus moved to delete §8.04. Mr. Nishida New subsection §8._Mediation seconded the motion. Motion carried 4:0 Mr. Justus explained there would be a mediation team for the County. Lawsuits against the County would first be given the option of employing mediation to resolve the issues. If the issues are not resolved then it shall go to court. Attorney Winn explained that the Charter Commission cannot dictate how a lawsuit is going to be conducted. You cannot require people who are suing the County to mediate with the County first. Every case is different and while some cases do go to mediation it might not always be in the best interest of the County to tie their hands and require the County to go through something when it may not be best for the case. Mr. Justus asked if there was some way to say the County offers mediation services for their concerns. Attorney Winn said she did not know if that was proper for the Charter. The court system already has mediation and arbitration in place. Chair Stack said he was in court all morning and routinely watched the judge compel parties to mediation and they had no choice. There is a totem pole of the appropriate venues and mediation is pretty low on the totem pole and has no risk for any party involved. Any party, including the parties representing the County Attorney,may decline to mediate. Chair Stack said he takes issue on whether or not mediation is the appropriate venue for these kinds of actions. Attorney Winn said she was not telling the Commission policy at all but her Charter Review Commission Open Session July 23, 2012 Page 9 SUBJECT DISCUSSION ACTION perspective that it might not be in the best interest of the County to require any particular thing to happen with cases. Mr.Justus said it would be great if there was some kind of option and at least it would be in writing that it is available. However, this might not be a Charter issue. Attorney Winn said while the Attorney's Office is not mediators they can do mediation and arbitration. Because of the separation of powers, the Mayor and the Administration have all the administrative duties. They decide how to take action. If there is a feeling the case needs to settle,the County Attorney goes to the County Council because it is in their scope of duties to decide money issues. Mediation is available if the parties want to do that. If parties want to mediate, a lot of times they have to hire a mediator to make the determination to help them through the case or they can request a settlement conference with the judge. Ms. Barela felt that Mediation would be adding another duty by saying this was something the Attorney's Office needed to do in their job description. There is a section for Powers, Duties, and Functions and mediation is a function. Chair Stack said the County Attorney has broad powers and what they are trying to do here is make them more effective and more accountable. Chair Stack asked how many mediators were there in the County Attorney's Office. He further explained that a mediator looks for common ground where an attorney looks for a win/lose situation. A lawyer is an advocate. A mediator collaborates. Attorney Winn said one of the Rules of Professional Conduct is an advocate. One of the Rules is a counselor. One of the Rules is a mediator. While the Charter Review Commission Open Session July 23, 2012 Page 10 SUBJECT DISCUSSION ACTION have the different roles there is no one in the Office with a job description of a mediator. Ms. Barela said she did not know if she wants that to be there rather than make it a subsection under one of the sections. Mr. Justus said if they want to spell it out, it could be listed as one of the Powers,Duties,and Functions but he understood the County Attorney to say it was already a function of the Office. Ms. Barela said the Charter could not say they had to hire a mediator. Attorney Winn said they could create an office but they could not mandate that a position be filled. Attorney Winn explained that a mediator who works for the County will be the County. No party on the other side would agree to a mediator from the County because that is who they are suing - the County. Mr. Justus said if they included a mediator that would only be if one department has a problem with another department. They could go to the mediation section of the County Attorney's Office to work it out. Ms.Barela said you do that with employees to work things out. Mr. Nishida said mediation is more of a tool than a function but Mr. Justus was to specify it as a function. Chair Stack said mediation has been proven to be very effective for the parties in dispute and very cost effective. Mr. Nishida said if you set up an Office of Mediation who would go to it? Mr. Justus asked if someone sued the County could they use the County's mediator as a third party. Attorney Winn said in practicality,no one is going to agree to use the County as a mediator because that is the entity they are Charter Review Commission Open Session July 23, 2012 Page 11 SUBJECT DISCUSSION ACTION suing. Mr. Justus suggested they list what the Powers, Duties, and Functions are since they are not stated and people would be aware of what that means instead of it just being blank. Mr.Justus suggested the last sentence of§8.04 read: He shall perform all other services incident to his office, including mediation and arbitration, as may be required by law. Ms. Barela said she could see endorsing mediation but nothing else is delineated so why would they delineate that specifically. Chair Stack said it was not being utilized to its fullest extent. Ms. Barela questioned telling the County this is something they should be doing. Mr. Justus moved to defer the section on Mediation and invite the County Attorney for more discussion on this item. Motion died for lack of a second. Mr. Justus moved to defer the section on Mediation to November. Mr. Nishida seconded New subsection §8._Yearly Review the motion. Motion carried 4:0 Mr.Justus said this would bring more accountability to the County Attorney's Office. This would provide opportunity to review what has happened and to answer questions and concerns. The County Attorney's Office is not just a department of the Mayor; it represents all three parts. Ms. Barela said the Planning Department is a department not just to the Mayor but to the County. Mr. Justus said the difference is the Planning Commission elects their Department Head while the Mayor appoints the County Attorney. There is a se aration of the politics. Charter Review Commission Open Session July 23, 2012 Page 12 SUBJECT DISCUSSION ACTION Mr. Nishida said you have to separate out the Yearly Review. The County Attorney has a yearly evaluation. Ms. Barela said evaluations give people an opportunity to share whatever information they have about the person and that is standard throughout the departments. If this is different than the other departments, it is saying the Attorney's Office is different. Mr. Justus asked if it was in the Code about what happens if the County Attorney does get removed from his position. Attorney Winn said the First Deputy would take over. Mr. Justus moved to delete the section on Yearly Review. Mr.Nishida seconded the motion. New subsection §8._Special Review Motion carried 4:0 Mr. Justus said if the Declaratory Ruling comes back that the advice given was incorrect or illegal, what happens after that. Attorney Winn said many times there is not a clear cut answer. If the County Attorney gives advice contrary to what a court ultimately decides is the law,it was based on prior cases available to them in order to make their best determination. I would be concerned about working for the County, and it would be problematic,if there is something that says if I give bad legal advice or advice that a judge later decides is different from what he thought. With the approval of Council, the Mayor can fire the County Attorney if he does not like the advice he was given. Mr. Justus said it comes back that the advice given was wrong. Ms. Barela said that does not make it illegal. Mr. Justus asked if the advice given was overturned by a judge what is the next step after that or is there some type of review and discussion. Charter Review Commission Open Session July 23, 2012 Page 13 SUBJECT DISCUSSION ACTION Attorney Winn said there is nothing formal provided anywhere. Whether or not there is a discussion, there is no procedure that says if the County Attorney argues something and a judge disagrees that there is a formal hearing or anything like that. Ms. Barela said if there is a ruling it sets forth the precedence for future actions. It is opinions. Mr. Justus said there should be something in place that retroactively fixes or adjusts or corrects for the improper action taken. Attorney Winn said it sounded like he was talking about a procedure to fire the County Attorney and for what reasons. Mr. Nishida said it can't be related to whether they got a negative ruling or based on a single clarification of the court. It is not the Attorney's fault if they come up with argument that the judges claims is weak. Mr. Justus moved to delete the section on Special Review. Mr.Nishida seconded the motion. Motion carried 4:0 CRC 2012-06 Memorandum dated 4/10/12 from the Prosecuting Attorney Office proposing charter amendments to Article XI relating to the Police Department deferred from 6/25/12) a. Charter policy from Oahu, Maui and Hawaii on the legal adviser and counsel to the Police Department. Attorney Winn said per the Commission's request she provided the relevant sections of the charters from Maui,the Big Island and the City and County of Honolulu. Charter Review Commission Open Session July 23, 2012 Page 14 SUBJECT DISCUSSION ACTION Mr. Justus thought this was about the Office of the Prosecuting Attorney wanting to have their own legal adviser on staff. Ms. Davis said it was difficult to tell what they want because they have never submitted specific language as a Charter amendment for review. Ms. Barela moved to defer this item until the Office of the Prosecuting Attorney provides the appropriate language. Mr. Justus seconded the motion. Motion carried 4:0 Attorney Winn thought part of the discussion last time was that if it is budgeted by the County Council departments can have legal advisers. That is not part of the Charter but it is a position that can be filled if the County Council makes a position and appropriates the money for it. Announcements Next Meeting: Monday, August 27, 2014 at 4:00 pm Adjournment Mr. Justus moved to adjourn the meeting at 5:43 p.m. Mr. Nishida seconded the motion. Motion carried 4:0 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair O Approved as is. ( ) Approved with amendments. See minutes of meeting.