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HomeMy WebLinkAbout2012_0827_CharterAgendaPacket Patrick Stack Members: Chair Mary Lou Barela Joel Guy Ed Justus Carol Suzawa Jarnes Nishida,Jr. Vice Chair Jan Tenl3ruggencate COUNTY OF KAUA'I CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday, August 27, 2012 4:00 p.m. or shortly thereaftor Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, LThu'e, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of July 23, 2012 COMMUNICATION CRC 2012-09 Memorandum dated 819112 from Patrick Stack, Chair, to Ricky Watanabe, County Clerk, transmitting the County of Kaua'i Charter Amendment Ballot Questions for the 2012 General Election BUSINESS CRC 2012-10 Voter Education - Explanation of County Charter Amendments Proposed in the 2012 General Election a. Timeline for Charter Amendments (revised 4/24/12) b. Voter Education Distribution Areas c. Taping of Mayor's "Together We Can", October 5, 10:00 a.m, 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 6125112) b. Proposed changes from Commissioner Ed Justus to Article V111 ANNOUNCEMENTS Next Meeting: Monday, September 24, 2012 at 4:00 pm in the Mo'ikeha Building, Meeting Room 2A/B ADJOURNMENT An F�,,qual Qpportttni y Employer EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92-7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92-4 and shall be limited to those items described in HRS §92-5(a). Discussions held in Executive Session are closed to the public. Cc: Deputy County Attorney Jennifer Winn PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24-hours prior to the meeting indicating: 1. Your name and if applicable, your position title and organization you are representing; 2. The agenda item that you are providing comments on; and 3. Whether you will be testifying in person or submitting written comments only; and 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 teStn'lloriv to: Charter Review Commission Attn: Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 Llhu*e, HI 96766 E-tiiail:bdavis(ci;I,czitiai.-gov Phone: (808) 241-4919 Fax: (808) 241-5127 SPECIAL ASSISTANCE If you need an alternate format or an auxiliary aid to participate, please contact the Boards and commissions Support Clerk at (808) 241-4919 at least five (5) working days prior to the meeting. Charter Review Commission—August 27, 2012 2 1 P c I DIRS T 1@41111����J C OUNTY OF KAUAI Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date JuIN, 23, 2012 —location Kioikeha Building, Meeting Room 2A/213 Start of Meeting: 4.05 pm End of Meeting: 5:431 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 Suza-wa Member: Joel Guv Absent Jan TenBruggencate SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:05 pm with 4 Commissioners resent .. 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 Findituls &Purpose and Ballot Questions for a roposed 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 Relator to the Powers, Duties and Functions of the Prosecuting Attorney Mr. Nishida said the items listed were programs and the Charter is not the nlace where ro ams. The Charter does not have to include all Charter Review Commission Open Session July 23, 220 12 Page 2 SUBJECT DISCUSSION ACTION 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 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 ma,, Charter Review Commission }pen Session July 23, 2012 Page 3 SUBJ N ACTION j or may not be there. 1 3 Mr. Justus wanted to know what the harm would be if it did not lock anything in, if it just provides padding. Mr. Nishida moved to reject the amendment. Ms. Barela seconded the motion. Motion carried 4:0 a 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 i seconded the motion. Motion carried 4:0 j Mr. Justus moved to approve the amendment for Ballot uestion I and 2. Mr. Nishida seconded Charter Review Commission Open Session July 23, 2012 Page 4 SUBJECT DISCUSSION I ACTION Tthe motion. Motion carried 4:0 CRC 2012-05 Memorandum dated 4/10/12 from the Prosecuting Attorney's I Office proposing charter amendments to Article VIII relating to the Office of j the County Attorney deferred from 6/24/12) I b. Proposed changes from Commissioner Ed Justus to Article VIII i c.County Council Bill No.2438 for an ordinance amending Chanter 3,Kauai 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 I County Attorney,the County Attorney would be appointed by a Commission I ! which would provide a non-political office. A change in appointment and j 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 1 Charter Review Commission Open Session July 23, 2012 Page 5 SU SSION ACTION 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 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 Charter Review Commission Open Session July 23, 2012 Page 6 SUBJECT 1 DISCUSSION i ACTION 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... 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. Nisbida. 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 Hawaii 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 residenev requirements as the Mavor and was not sure five vears was Charter Review Commission Open Session July 23, 2012 Page 7 SUBJECT DISCUSSION .1 ---l—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. 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. ACTION 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 Mavor.and the County Council. Only lately has it been very public where Charter Review Commission Open Session July 23, 2012 Page 8 SUBJECT SSION 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 q4th all county, state, and federal laws. Attorney Winn said all officers are required to take the oath of office which states basically the same thing. New subsection §8._Mediation 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. ACTION Mr. Justus moved to delete §8.04. Mr. Nishida seconded the motion. Motion carried 4:0 Charter Review Commission Open Session July 23, 2012 Page 9 SUBJECT DISCUSSION i ACTION Attorney Winn said she was not telling the Commission policy at all but her 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 Charter Review Commission Open Session July 23, 2012 Page 10 SUBJECT DISCUSSION 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 they 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 Charter Review Commission Open Session July 23, 2012 Page I I SUBJECT I DISCUSSION I ACTION 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 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, includi 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 Charter Review Commission Open Session July 23, 2012 New subsection §8._Yearly Review 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 separation of the politics. 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. New subsection §8._Special Review Mr. Justus said if the Declaratory Ruling comes back that the advice given was incorrect or illegal, what happens after that. ACTION Mediation to November. Mr. Nishida seconded the motion. Motion carried 4:0 Mr. Justus moved to delete the section on Yearly Review. Mr. Nishida seconded the motion. Motion carried 4:0 Charter Review Commission Open Session July-23, 2012 Page 13 SUBJECT i DISCUSSION ACTION 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. 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 nei4ative ruling or Charter Review Commission Open Session July 23, 21112 Page 14 SITBJECT DISCUSSION F ACTION ' 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 j CRC 2012-06 Memorandum dated 4/10/12 from the Prosecuting Attorney's I Office proposing charter amendments to Article XI relating to the Police � Department (deferred from 6/25/12) a. Charter policy from Oahu Maui and Hawai'i 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. 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 jbudgeted 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 Meetin��: Monda , Au ust 27, 2014 at 4:00 m Adjournment ; Mr. Justus moved to adjourn the meeting at 5:43 .m. Mr. Nishida seconded the motion. Motion Charter Review Commission Open Session July 23, 2012 Page 15 SUBJECT i I DISCUSSIONT Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair Approved as is. ( ) Approved with amendments. See minutes of meeting. Patrick Stackv Members: Cliair Mary Lou Barcla Joel Guy Carol Suzawa Ed Justus Vice-Chair James Nishida,Jr. Jan TeriBruggencate 'COUNTY OF KAUAI CHARTER REVIEW COMMISSION C/o Office of Boards and Commissions 4444 Rice Street, Suite 150, L-ihu'c, 111 96766 MEMORANDUM To: Ricky Watanabe, County Clerk Cc: Honorable Bernard P. Carvalho, Jr.,Mayor Gary lieu, Managing Director Jennifer Winn, Deputy County Attorney Lyndon Yoshioka, Elections Administrator From Patrick Stack, Chairman Charter Review Commission Via: Paula M. Morikami, Administrator Office of Boards and Commissions Date: August 9, 2012 Re: Transmitting Proposed Charter Amendments and Ballot Questions Transmitted herewith are the final proposed Charter amendments and ballot questions that were approved by the Charter Review Commission at its meeting on Monday, July 23, 2012. For your information, the proposed ballot questions have been reviewed by the County Attorney's Office, 'I'liank you in advance for your kind attention to this matter, (AtTachttlents) An Equal 01)portunity Employer CRC 2012-09 PROPOSED CHARTER. AMENDMENTS 2012 CHARTER REVIEW COMMISSION August 1,2012 Charter Review Commission -August 1,2012 Pac qe I Amendments to the Charter of the County of Kaua'l' 1. An Amendment Relating to the Mayor's Compensation Charter Amendment Article VII,Section 7.03 of the Kaua'i County Charter shall be amended to read as follows: ARTICLE VII MAYOR "Section 7.03, Comygnsation. 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 pLoyLsiqns of Article XXIX of this Charter," N&: 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? 2. An Amendment Relating to County Board and Commission Member Terms Charter Amendment Section 23.02 H of the Kauali 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." "Pate: Charter material to be repealed is bracketed- New charter material is under-scom-d. ,5-1a—rter—Rev—iew Com—rnis5ion- gust 1,2012 Page 2 Ballot Quesdon: 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? 3. An Amendment Relating to the Election of County Officers Charter Amendment Article 1,Section 1.03 of the Kaua'i 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. I. Offices of the Mayor,Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. However, if there is only one candidate for each of said offices,such candidate shall be 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. L Office-, 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 Charter Review Commission-Atqust 1,2012 Page 3 nonpartisan election shall be placed on the ballot for the second nonpartisan election. At the second nonpartisan election the candidates receiving the highest number of votes for mayor, prosecuting attorney and district council member,respectively,shall be elected. 2. Office of At-Large Council members. a. If any at-large council office remains to be filled after the first nonpartisan election, two candidates for each vacant at-large council office shall be placed on the ballot. The names of the candidates receiving the highest number of votes cast in the first nonpartisan election, other than the name of any candidate elected after the first nonpartisan election, shall be placed on the ballot until a sufficient number of candidates are on the ballot as provided in this subsection. At the second nonpartisan election, the candidates receiving the highest number of votes for each vacant at-large office shall be elected, b. In the event of a tie vote in the second nonpartisan election, the winner shall be determined by chance by a method chosen by the county clerk. D. In any subsequent publication of the foregoing sections the term "first nonpartisan election" and "second nonpartisan election" may be changed to "primary election" and "general election",respectively.] A. N2npartisan Elections. County elections shall be conducted in accordance with the election laws of the State insofar as Mplicable, but all elective coon officers shall be elected by nonpartisan elections. B. Offices of the Mayor and Prosecuting Attorney. 1. For the offices of mayor and prosecutigg attorney, the names of the two candidates receiving the highest number of votes for these offices in the prim m election shall be laced on the ballot for the eneral 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 P-eneral election, the candidates receivine the highest number of votes for may—or and prosecuting attorney shall be elected. 3. Tie votes. In the event of a tie vote for mLiyor and prosecuting at orn I Qhe L_�� jL _ primy or acricral election, the winner shall be determined bv a method of chance as determined by the county clerk. C. Office of At-Large Council members. 1. For at- office receiving the highest number of votes in the rim election shall be placed on the ballot for thegepnq; I election. Nmm Charter Review Commission -August 1,2012 Page 1 2. At the gqn electiop, the candidates LeceiviLig,fte_highest_number ofj,(-)tcsfqr each vacant at-lay 1 Tie votes. In the event of a tie vote for the last remaining at-lay ye council office in the orim ary election the candidates receivin g the same number of votes shall bg_21aced on the ballot for the general election. In the event of a tie vote for the last remaining at-large council office in the aenerW- 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. Bq11ot!2qe,y ,lion: 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? 4. An Amendment Relating to Submission Requirements for Initiative and Referendum Petitions. Charter Amendment Article XXII,Section 22.03 of the Kauali County Charter shall be amended to read as follows: ARTICLE XXII INITIATIVE AND REFERENDUM "Section 22.03. Submission RNuirement. 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 cAnprisin not less than twenty percent (20%) of the number of[eligible] voters tqgjggrecl in the last[preceding] general election. D. If an initiative or referendum measure is to be placed on the ballot in a general election, the initiative and reterendurn 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." Page 5 Note: Charter material to be repealed is bracketed. New charter material is undersc=ored. 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? 5. An Amendment Relating to Initiation of Charter Amendments Charter Amendment Article,XXIV,Section 24.01 of the Kauali County Charter shall be amended to read as follows: ARTICLE XMV 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 r 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]y"signatures of registered voters." NgLe: 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? Charter Review Commission--AiVust 1,2012 Page 6 6. An Amendment Relating to Salary Commission and to General Provisions Charter Amendment Article XXLX,Section 29.01 and Article XXIII,Section 23.01 of the Kauali County Charter are amended to read as follows: ARTICLE XXLK SALARY COMMISSION "Section 29.01. Organizatio . There shall be a Salary Commission composed of seven members to establish the maximum salaries of all [councilmenibers and all officers and employees included in Section 3-2.1 of the Kauai County Code 1987, as amended] elected and avriointed 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 findings shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15 of any calendar ar. [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 ma ycaluntaril acc t a sal lower than the maximum fi e established b the sal 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 Sala -mbers shall be effective U. No change in salary of councilint 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 techma 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: =7107ter Review Commission-August 1,2012 Page 7 (1) Mayor,prosecuting attorney,and members of the council. (2) Any person excluded from Chapter 76, HR 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] Dqputi s appointed by the administrative head of any department or a enc of the coon who are excluded from Cha ter 76 HRS and the vosition classification pl [(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'? 7tt' -ter—Re—vi-e--w-'Co—trii7iiss—ion -'-ZN—ustl,2012 Page 8 OP zi, or 4444 Rice Street, Suite 150 M-hu'e, Hawaili 96766 RELATING TO SECTION 23.02 (H) - COUNTY BOARD AND COMMISSION MEMBERTERMS "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?" Vote YES or NO Background: 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. Explanation: This restriction discourages qualified individuals from continuing to volunteer and use their acquired experience and knowledge in other areas of interest that may be beneficial to the county. The purpose of this amendment is to allow a county board or commission member to continue serving on a different board or commission without the need to take a one year break in service. RELATING TO SECTION 1.03 - THE ELECTION OF COUNTY OFFICERS "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?" Vote YES or NO Explanation: The Charter Review Commission does not agree that candidate receiving thirty percent of the votes cast in the primary election shall be automatically elected, and instead believes that th candidate should be required to run in the general election. I RELATIAG TO SECTION 22.03 - SUBMISSION R9QUIREMENTS FOR INTIATIVES AND REFERENDUM PETITIONS "Should it be clarified that an initiative or referendum petition must be signed registered voters comprising of the established percentage of the number of vote registered in the last election?" Vote YES or NO I I MITUM-11 - - - I I i I - . Z 9 M=PIMN IN E9J 9 W L91 UM 1$0 11111 MI I M III I I W I III M MAINE.a jivMH-1. M MI Explanation: This proposed amendment would clarify that initiative and _ referendum petitions must be signed by registered voters comprising a certain percentage of voters registered in the last general election. RELATING TO SECTION 24.01 - SUBMISSION REQUIREMENTS FOR CHARTER AMENDMENTS "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?" Vote YES or NO Background: The charter is unclear as to whether or not a signatory to a petition for a charter amendment must be a registered voter. Explanation: This proposed amendment would clarify that charter amendment petitions must be signed by re*stered voters comprising-a--certain percentage of voters registered in the last general election. RELATING • SECTION 7.03 - THE MAYOR'S COMPENSATION "Should the mayor's salary be established by the Salary Commission Vote YES or V• Background: The charter states that the mayor's salary is to be set "a the council in Section 7.03 while simultaneously providing that the mayor's salary is • be set by the Salary Commission in Section 29.011 UIC Illay*1 S SMIPEY IS T-SLUOUSIR-0 by the Salary Commission in accordance with Article XXIX of the charter. RELATIAG TO SECTION 29.03 - SALARY COMMISSION "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?" Vote YES • NO Background: The charter currently does not allow for an elected official to accept a salary lower than that established by the Salary Commission. Ex lanation: This proposed amendment would allow elected officials to accept a salary lower than that established by the Salary Commission. RELATING TO SECTION 29.05 - SALARY COMMISSION "Should the waiting period be eliminated before the council's salary changes become effective?" Vote YES or NO Background; The charter currently requires that a salary increase for councilmembers be delayed until after the next election, so that councilmembers could not increase their own salaries while in office. Explanation: The Charter Review Commission feels this provision is no longer necessary because the charter now gives the Salary Commission the authority to set councilmembers' salaries. F97-T-T-T-M- -W RELATING TO SECTIONS 19.02 AND 19.07 RELATING TO BUDGET PROCEDURES "Shall the provisions that allow the mayor after submitting the proposed annual budget, to submit suggested budget modifications before the council enacts the annual budget be deleted?" Vote YES or NO Bac4aound: Currently, Section 19.02, Article XIX, of the Kaua'i County Charter states that the mayor may submit one communication to the council which suggests mc�difications to the proposed annual budget ordinance. This communication shall describe the mayor's suggested modifications to the proposed annual budget and the reasoning justifying such modifications. P*ylanation. If approved, this amendment would take away the opportunity that allows the mayor to submit suggested budget modifications to the proposed annual budget before the council enacts the annual budget. Pros: • It would allow for a more deliberate annual budget setting process for the Council as it would provide the Council more time to review, consider, and perform the necessary research on the various items proposed by the mayor in the �mnual budget submittal. • It will increase the time the Council has to review, consider, and research the proposed annual budget without having budget modifications which could substantially change the original budget submittal. • The Mayor's annual budget submittal would be the only official opportunity for the Administration to provide their recommended budget, which would then provide the Council with more definitive fiscal information for their budget deliberation. Cons: • It will not require the Administration from providing suggested budget modifications to projected revenues or expenses should there be any changes in the County's fiscal situation should the State Legislature enact legislation which reduces County allocations (i.e., Transient Accommodation Tax allocations, etc.) or enact legislation which places additional fiscal requirements on the County. • The County Council and Council Services Staff would need to have complete access to all financial information from the Administration that they currently do not have, and make any adjustments that need to be made after the initial budget submittal (i.e., revenue adjustments, federal/State requirements, etc.); this information may not be readily available or known to the County Council or Council Services Staff. * The Mayor's annual budget submittal would be the only official opportunity for the Administration to provide their recommended budget. For complete information or copies on Charter Amendment proposals,please go to www.kanai.g2v/boardsandcommissions and click on"Charter Review Commission"or contact the Office of Boards and Commissions at 241-4919 or the Elections Division at 241- 4800 or TTY at 241-5116 during normal business hours. Charter Review Commission Timeline for Charter Amendments February 2012 DRAFT March 19, 2012 Cutoff date for proposed Charter Review Commission (M9.ndaY)__ amendment submittals April 23, 2012 (Monday) Forward proposed Charter amendments to Legal Analyst "'HMV 040 for Findings/Purpose and Ballot Question May 21, 2012 CRC to review amendments and forward to the County _(Monday)_ for legal review. July 23, 2012 Final approval of proposed Charter recommendations by AMond4YL.-__ CRC, July 24, 2012 Communications Team to prepare and format Voter J esd, Education Material August 22, 2012 Final review of Voter Education Material from the (Wednesday) County Attorney July 30 (Monday) to August Primary Election walk-in absentee polling period; August t't, 2011 Primary Election August 15, 2012 All Charter amendment questions(s) due to the County (Wednesday) Clerk for printing of ballot pursuant to HRS § I I-I 19(b) (including Rainsayer text of amendment in Word format) August 23,2012 All Charter amendment qucstions(s) due to State Chic' (Thursday) Election Officer for printing of ballot pursuant to MRS § I I-I 19(b) (including Ramsayer text of amendment in Word format) August 23, 2012 Send Voter Education Material to the Printer for juiurs�L tit �,, foldin and stuffing in mail-out ballots TBD, 2012 Finalized camera-ready voter education for MidWeek Kauai September 22, 2012 Mail-out of General Election absentee ballots to (Saturday) overseas voters (allows for 6 day challenge following primary+4 day judicial response) (Federal guideline suggests 30-45 days prior to General) Mail voter education to non-Kauai addresses October 6, 2012 County Clerk and Commission jointly publish all (Saturday) proposed Charter amendments in a newspaper of general circulation in the county pursuant to Kaua'i County Charter Section 24.02 B. (publish not less than 30 days Nveck-of 0­c-tober 15, 20-12 Publish voter education in MidWeek Kauai Revised 4124/12 October 23 (Tuesday) to General Election walk-in absentee polling period; November 3 (Saturday), pursuant to 1-IRS § 15-7 2012. November 6, 202 General Election (Tuesday) December 6, 2412 County Clerk to publish approved Charter amendments (Thursday) in a newspaper of general circulation in the county within 30 days, Revised 4,/24/12 Charter Amendment—Drop Off Areas Public Library (100 copies) HanapCape—Karen Ikernoto Kapa'a—Greg Nitta K61oa — Ed Thorp Uhu'e—Carolyn Larsen Princeville—Jennifer Relacion Waimea—Susan Remoaldo Parks & Recreation - Neighborhood Centers (100 copies)—Give to Cindy Kilauea Kapaa Lihue K61oa Kaljheo Hanapepe Kaumakani Waimea Kekaha KCC(100 copied Student Government—John Constantino Library—Bob Kajiwara (Regina) Member Organizations Kaua'i Chamber of Commerce—carol(@kauaichamber.org Kaua'i Economic Development Board—stai@kedb.com myoshiokaL@kedb.com Kaua'i Visitors Bureau—skanoho@hvcb.or Po!'p0 Beach Resort Association —iody@poipubeach.or Kaua'i Planning&Action Alliance—dzacharyokauainetwork,.M Uhu'e Business Association —patgriffin@hawaiiantel.net West Kaua'i Business & Professional Association—mdnellisl@hotmaii.com North Shore Business Council—tvpaguv@vahoo.com Hawaii Hotel and Lodging Association —Jolene.ogle@marriott.com Kaua'i Filipino Chamber of Commerce —fill inochamber aol.com RotaLy Clubs Rotary Club of Hanalei Bay- anncorr(@hawaiiantel.net Rotary Club of Kalepa Sunrise - mar ynavarro592yahoo.com Rotary Club of Kapaa - dschneck@nationalsecurities.com Rotary Club of Kaua'i - decosta2004@hotmail.com Rotary Club of Po'ipO Beach - bprinzing@hawaii,rr.com Rotary Club of West Kauai - rgt6568@yahoo.com Mass Media All Kaua'i Radio Stations as PSA Midweek "Together We Can" - Hoike TV Show KIUC Currents Magazine Kaua'i County Website Office of Elderly Affairs—RSVP County Employees Fo OFFICE OF THE PROSECUTING A I ORNEY COUNTY OF KAUAI, STATE OF HAWAFI 3990 KAANA STREET, SUITE 210, LTHU'E, HI 96766 TEL: (808)241-1888 FAX: (808)241-1758 prosecutor@kauai.gov Shaylene Iseri-Carvalho Prosecuting Attorney Jake Delaplarte Sam Jajich First Deputy Prosecuting Attorney Second Deputy Prosecuting Attor 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 Kauai County Charter to include language mandating the avoidance of conflicts of interest,as well as language that provides for the appropriate procedures to follow when a conflict arises. In support of this request,the OPA provides the following suggested language for Article VIII: 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. (b) The county attorney shall not represent a county client if the representation of that client may be materially limited by the county attorney's responsibilities to another 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, Deputy Prosecuting Attorneys: Lisa R.Ann Melinda K.Mendes Gary Nelson Jared Auna John H.Murphy Ramsey Ross Lance Kobashigawa Rebecca A.Vogt An Equal Opportunity Employer 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. (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 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. 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. Nothing in this Article shall be interpreted or applied so as to create any requirement, power or duty in conflict with anyfederal 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." Mahalo, " gz-- "E,, -- Shaylene Iseri-Carvalho Prosecuting Attorney Suggested Changes to County Attorney VIII)from Community Input: 8.Q2—Appointment and Removal—Both the Mayor and the Council shall have the power to appoint, disc�pline, and remove the County Attorney. The mayor may appoint and remove the County Attorne with the vote ot�L3 approval from the Council.Also, the Council may appoint and remo�e the CoyL7ty Attorney with a vote of two-thirds majority, with the approval of the Mayor, if the Mayor does no Mprove either the appointment or the removal of the County Attorney, the Council has the power t override Mayor's approval with a Lull approval vote ot the Council. ` 803 - ...shall have engaged in the practice oflaw in the State of Hawai for at least [three]Live years. &_-- Mediation—(Concept is that there will be a mediation team for the County. All lawsuits against the county shall first be given the option qf employing mediation to resolve issues. !f the issues are not resolved,then it shall gotocourt) ShOO review 94o agtiong Whether=ox, Revised 6115-8112 CBC 2012-05 b. ARTICLE VIII COUNTY ATTORMPY Section 8 . 01 . Organization. There shall be an office of the county attorney which shall be headed by the county attorney. Section 8 . 02 . Appointment and Removal. The county attorney shall be appointed and may be removed by the mayor, with the approval of the council. Section 8 . 03. Qualifications .' The county attorney shall be an attorney licensed to practice and in good standing before the supreme court of the State of Hawaii and shall have engaged in the practice of law in the State for at least three years. Section 8 . 04 . Powers, Duties and Functions. The county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law. Section 8 . 05. Deputy County Attorneys. The county attorney shall have the power to appoint such deputy county attorneys and necessary staff as shall be authorized by the council and within the appropriation made therefor. Such deputies shall serve at the pleasure of the county attorney. Section 8 . 06. Special Counsel. The council may, by vote of five members, authorize the employment of special counsel for any special matter necessitating such employment. Any such authorization shall specify the compensation, if any, to be paid for said services. Section 8 . 07. 1 Service of Legal Process. Legal process against the county shall be served upon the county attorney or any of his deputies.