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HomeMy WebLinkAbout2012_1022_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 11/26/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I October 22, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:00 p.m. End of Meeting: 5:23 p.m. Present Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: Mary Lou Barela; Joel Guy; Ed Justus; James Nishida; Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:00 .m. with 7 Commissioners present, Approval of Open Session Minutes of August 27, 2012 Ms. Barela moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 7:0 Business CRC 2012-10 Update on Voter Education Materials a. Recap from Chair Stack and Commissioner Guy on tqpin o�yor's "Together We Can"which was rescheduled to October 18 b. Website locations for Proposed Charter Amendments Mr. Guy thought the taping went well considering the questions on the proposed amendments are challenging. The more opportunities the Commission has to help the public in understanding these changes, the better it will be. Chair Stack said he never had a full grasp of each and every question until they were in that forum and discussing the proposed amendments when it started making sense. Chair Stack thought the Commission did a very good job in selecting which questions would go on the ballot and which ones would be tabled or deleted for the time being. Ms. Davis told the Commission that the most frequent question coming as a result of the voter education mail out is with regard to the Mayor's salary and who appoints the Salary Commission. The common reaction is "it Charter Review Commission Open Session October 22, 2012 Page 2 SUBJECT DISCUSSION ACTION figures that the Mayor appoints the Salary Commission"until you explain the check and balance that the County Council interviews and approves or disapproves of each appointee. Mr. Guy said there have been questions about the wording for the proposed charter amendment from the County Council and asked if there was any clarification for the Commission. Since it was not the Commission's proposal, Attorney Winn said she was not sure how much they could say since the Commission does not know how the County Council got to that decision. Discussion only; no action required CRC 2012-11 Commissioner Justus' proposed new Article XXXIII to the Charter creating a Commission to provide oversight of the County Attorney Mr. Justus said this proposal could help show that the County Attorney's Office is not favoring one side or the other. There seem to be different branches of the County government who feel they are not being represented and they want their own special counsel because they don't trust the County Attorney's Office to give them an opinion that is impartial. This concept is to give an equalized method of appointing the County Attorney where both the executive branch and the legislative branch get equal say in how that happens; however, the elected representatives are not directly responsible for the appointment. The proposal follows very similar to other boards or commissions that we already have. Another suggestion is to have people (on the commission)with credentials or knowledge (of law)to appoint an attorney they feel would be suitable to serve in the capacity as county attorney. Chair Stack asked if the wording"oversight of the county attorney"might imply they need looking after. Mr. Justus said you could say the same thing of the Planning Commission or the Fire Commission but basically it is to remove the county attorney from being seen as siding with one particular branch when they are supposed to represent the entire county; it helps to remove that potential misunderstanding. Charter Review Commission Open Session October 22, 2012 Page 3 SUBJECT DISCUSSION ACTION Chair Stack asked Mr. Justus what his vision of the body is that would make up the oversight group. Mr. Justus said he followed the language in §23.02 of the General Provisions in the Charter which basically allows a board or commission to be either appointed by the mayor and confirmed by the council or it can be jointly appointed by the mayor and the council with 3 members appointed by each and the 6 members appoint the 7th member. Ms. Barela felt an oversight group just feeds the whole thought that the county attorney isn't being fair so right now she would be against it because of the implication. There will always be, whether or not there is an oversight committee, the comment they were appointed by the mayor. Mr. Justus said there are people outside of the government and people who currently serve within the government that want more accountability from the county attorney. Presenting this proposal removes the county attorney's office from being seen as siding with one side. Some people want the county attorney elected and then people can't point the finger at the mayor or the county council. Mr. Justus said he spoke with Al Castillo, County Attorney, so he would understand where Mr. Justus was coming from, and Mr. Castillo thought it seemed like a reasonable option. It would create a buffer for the people who give legal opinions and allow them to serve the entire county without seeming as if they are playing favorites. Chair Stack asked if there was any precedence of this in the State. Mr. Justus said Kauai is the only County that uses the term county attorney. All the other counties use the term corporation counsel (aka Corp Counsel). Mr. Guy said he hears the conversation a lot about the challenge within the two systems and in trying to find a way to lessen the negative effect. Outside of Kauai, is there another model that has success in this system? Charter Review Commission Open Session October 22, 2012 Page 4 SUBJECT DISCUSSION ACTION Mr. Justus thought the executive and legislative branches both feel they need a strong connection with the county attorney and this would give them equal participation in deciding who the county attorney is, and in some ways they do as part of the appointment and removal process. Mr. Guy asked why Mr. Justus shied away from an elected county attorney. Mr. Justus said the prosecuting attorney is elected and that can be a good or bad thing depending on your perspective. Both appointing and electing can be political in nature because an elected official will look out for their constituency and an appointed official may favor the side of the person making the appointment. Mr. Justus said the commission would be a good middle ground. Ms. Barela said some counties also elect their judges and some appoint the judges and the same things happen that are happening in our County. Whatever system is there it might not resolve the problem. Mr. Justus said currently if the Council is unhappy with the county attorney only the Mayor can initiate that removal. This proposal provides a body that both sides can speak to and begin that process if they want to appoint or remove the attorney. Ms. Suzawa asked if it would not be simpler to modify that section in the Charter to empower the Mayor or the County Council to initiate the removal of the county attorney. Mr. Justus said he did propose that but the Commission defeated it. Mr. Nishida said having two bodies, one the mayor and the other the 7 member council, and the attorney's office is different in that most departments provide a service to the community whereas the county attorney provides a service to the entity, the County of Kaua'i. The Mayor is the administrator of the County of Kaua'i and the relationship between the administration and the county attorney office if very different from how the Charter Review Commission Open Session October 22, 2012 Page 5 SUBJECT DISCUSSION ACTION other departments operate. Having two bodies who oversee the county attorney would lead to confusion and make it harder to recruit as well as to keep good attorneys. Mr. Nishida said the county attorney interprets statutes, actions of individuals and entities in the County and he has to figure out what is the best course of action for the County. The head administrator, whether it is a county manager or a mayor, is an administrative function. Commissions are good and bad and the downside of a commission is when the job of a department head is in the hands of a commission they can get the commission to back them up and they will do what that commission says. If you put in a commission the director will be separate from the mayor and the commission and that appointee will either develop a strong relationship or not. Mr. Nishida said his boss, his job, his pay, his responsibility, and his power is in the hands of the commission and not a good idea in general. That is the downside to having the directors in charge of a citizen commission. When you have people on the commissions aligned with what the commission is about you no longer have the citizen participation. Mr. Nishida said he would be more comfortable if the commission did not have any power or someone else hired or fired the director that didn't work closely with him. The department and commission interests are separate since the commissions only meet once or twice a month and they don't know what is happening in the department. Mr. Justus said this proposal did not come about because of the Police Commission complaint. He has heard complaints that people want to see some type of oversight to the county attorney's office long before that and is one of the first complaints he heard. This proposal is to try to create some type of balanced participation for the different branches in the county government with the county attorney. Mr. Nishida asked Attorney Winn who the county attorney's office re resents. Attorney Winn responded the County,which is all of the Charter Review Commission Open Session October 22, 2012 Page 6 SUBJECT DISCUSSION ACTION officers and employees doing their function for the entity. We do not represent the citizens, per se, but we do have to take into account the public interest. Ms. Barela said there has always been one issue or another with complaints of something leaning too much one way or the other. With a commission, the office has 8 bosses (7 commissioners and the mayor) instead of 1 so the community can blame the council and the mayor but does this solve anything. Mr. Justus said it could help to solve internal strife and cited the Police Commission as an example. Ms. Suzawa stated that is only one issue. Mr. Justus said it will come up again. Ms. Suzawa said you will always have that but over all the years, she did not perceive the county attorney represented only one side. It has happened before with other attorneys where someone may not have necessarily liked the opinion expressed and thought it was more favorable to the other side. When you formulate a commission like this you need to look at the powers and duties because a commission cannot really review a department's operation since the commission is not to interfere with, nor are they there day-to-day, which might be unfair to the county attorney they appoint. When the commission has to evaluate the county attorney and his performance, it is difficult to evaluate the operations or things that occur day-to-day; you can only base your evaluation on what takes place at the commission's meetings. Sometimes an evaluation becomes moot so you have to be careful with C. and D (Section 33.05). Mr. Justus said he used the language for Section 33.05 by following the language in Section 11.03 (Fire Commission) as the start for a discussion. Mr. Nishida asked Attorney Winn about the oversight of an attorney's work Charter Review Commission Open Session October 22, 2012 Page 7 SUBJECT DISCUSSION ACTION if a commission is established and the depth of what that oversight could take legally. Would there have to be special language to be able to discuss executive sessions or recommendations to the department. Attorney Winn said there might be some issues with attorney-client privilege and issues with the Rules of Professional Conduct that attorneys have to follow but she would need to look into this area. Mr. Nishida said you could put the hiring and firing of the county attorney in the hands of a commission but how would they evaluate his performance. Mr. TenBruggencate's concern is that there is a larger issue than this but Commissioner Justus raises a good issue. The larger issue is one that the Commission has been grappling with for the last year and a half, which is do we want a strong mayor or a weak mayor form of government. This proposal further weakens a mayor's authority and raises other issues such as a county attorney who is not beholden to the mayor but whose budget is beholden to the mayor. There is also a concern that the attorney for the county is not directly accountable to the people who run the county but to this group of other people. This is an interesting subject to talk through and in terms of an elected county attorney, do we want this hydra of elected egos. If there is an issue here, maybe it is not an issue of the county attorney because if there is an issue with the county attorney there is a place to point your finger and it is not at the county attorney's office, it is the mayor's office. We have the person, the only elected official other than Ron Kouchi, who represents everybody on the island, who has decided it is not a problem. Do we as a commission want to ask the public to override that authority? Mr. TenBruggencate said he is bouncing between an elected county attorney, this proposal or leaving it the way it is. Mr. TenBruggencate said he would be interested in hearing what some of the former county attorneys think about this concept because he has not heard Charter Review Commission Open Session October 22, 2012 Page 8 SUBJECT DISCUSSION ACTION of any attorneys being run by a commission and it also seems to be unwieldy. If mayors have had trouble finding people to take this position will a commission, which may have its own complex interaction, going to be better at it. There was agreement in getting more input than just this Commission. Ms. Suzawa suggested sending the proposal to the County Attorney to review the language. Attorney Winn said the Rules allow for the legal opinion after the Commission has vetted the proposal for language, etc. Attorney Winn said she has not done any research on this proposal but again stated her concerns would be the attorney-client privilege and the Rules of Professional Conduct. Attorney Winn is also not sure who would be able to judge the legality of things the county attorney does. Mr. Justus asked if it would be possible to give a copy of this document to the County Attorney's Office for comments. Attorney Winn said yes. Chair Stack suggested taking a long term global view of this issue agreeing with Mr. TenBruggencate on whether the County wants a strong mayor or a weak mayor. That is substantive of this issue. Mr. Justus stated that any time commissions have come up for a vote from the public, and these commissions remove a power from the mayor, they have been approved every time. Mr. Justus thought the public wanted a weaker mayor system based on that but they do not want to remove all the power. Ms. Barela reminded the Commission that when they went out to public meetings thinking the public wanted the county manager system it just wasn't the case. Chair Stack commented in the past the public has favored a strong mayor versus a hired manager. Mr. Justus said the people want the Charter Review Commission Open Session October 22, 2012 Page 9 SUBJECT DISCUSSION ACTION mayor to have some strength; they do not want to remove the mayor entirely and create a county manager system. It is obvious that the people do want the mayor to have certain powers and to not have powers over other things. Chair Stack said by trying to get more oversight he would not want this Commission to be perceived as favoring one issue or the other. This Commission needs to remain independent. Mr. TenBruggencate said they need to be careful about the issue of do they want the mayor to have the authority to hold the reins of power and to do what the people elected him to do or do they want to take some of that authority away from him. The bigger discussion is should he be able to select a planning director to carry out his vision. Should the county auditor be run by a commission or be elected? Should the public works engineer be commission appointed? Mr. TenBruggencate suggested the framers of the Charter said certain agencies are appropriate to be run by citizen panels and a certain level should be in the control of the person who is elected to run things, including the county attorney, the public works engineer and the finance director. We should not ignore the fact of looking at the bigger picture and do we as a community want to restructure this? It may not be fair to the public to toss this out without telling them the Commission is fundamentally shifting the way this County deals with power. Do we want to take power away from the mayor or do we want to shift more power to the mayor? Mr. Justus suggested for future agenda items they review all commission appointed department heads. Mr. Guy said the Commission vetted this topic when he first came on board and it was overwhelming that the Planning Commission wanted to maintain that power. Mr. Guy was not sure there had been enough change to go through this exercise again. At Charter Review Commission Open Session October 22, 2012 Page 10 SUBJECT DISCUSSION ACTION that time the Commission wanted to give the power to the mayor so he could be responsible for the planning director's actions and the voters could go after the mayor if the planning director was not adequate. Mr. Guy said there will always be frustrations but he supports vetting this issue further. Mr. Justus said this ultimately helps any view of favoritism between the legislative branch and the executive branch. Ms. Suzawa did not know if going through this process would alleviate or make the problems any easier. Ms. Barela said if this plan was in place and there was a commission to appoint the county attorney, how would it help today? Mr. Justus said his observation is the County Council has been dissatisfied with how they feel the County Attorney's Office represents them. Ms. Barela asked and? Mr. Justus said it would give them the power to approach the commission and say they did not feel they were being fairly represented and they could propose the process of removal of the county attorney to the commission. With 3 members of the commission appointed by the Council, most likely those members would initiate that process so it lends a format for the issue to begin. Ms. Barela questioned how a commission of lay people could override a decision made by the county attorney. Mr. Justus said the way he structured the makeup of the commission is that 2 of the 3 members appointed by Council and by the Mayor should have some knowledge or background in law. Ms. Barela said when and where to do they step in and find out what information the county attorney has that they are not privy to and can't be. Mr. Justus said he did not know but getting an opinion from the county attorney's office would provide a better idea of how something like that might or might not work. Mr. TenBruggencate said the County Council has a shot under the current language of the Charter. It gets to approve or disapprove of the Mayor's selection for the County Attorney. If the County Council can't do its job there is no reason to think they are going to do their job in a situation where Charter Review Commission Open Session October 22, 2012 Page 11 SUBJECT DISCUSSION ACTION they appoint half the members of the commission. That raises the question of does this fix the problem? If we are going to talk about this we need to talk about the bigger issue which is whether we are going to change the fundamental direction of government by shifting power away from the mayor. Mr. Justus said he would like to get opinions on this concept from the different areas of the government so they have more to discuss the next time Mr. TenBruggencate moved to defer this item to this comes up. the November meeting. Ms. Barela seconded the motion. Mr. Justus amended the motion that the proposal be sent out to the Office of the Mayor, the County Council and the County Attorney's Office for their input. Mr. Guy seconded the motion. Mr. Nishida said he would vote against the request for input from the County Council but will vote for deferral to the next meeting. The Commission needs at least another month in case they want to make changes or add items to the proposal. Mr. Justus said the more information they receive the better discussion they can have. Ms. Suzawa questioned the Commission sending out proposals before the Commission itself has decided whether to pursue the bigger picture first. Once the Commission decides whether it wants a stronger mayor-based type of government or a stronger commission-based form, then the Commission can ask for participation from other agencies on Motion on the amendment failed 3 ayes (Justus, changes to make so she will also be voting against the amendment. Guy, Stack): 4 nays (Barela,Nishidal Suzawa, TenBruggencate) Motion to defer carried 6:1 (nay—Justus Charter Review Commission Open Session October 22, 2012 Page 12 SUBJECT DISCUSSION ACTION CRC 2012-12 Review of amendments considered in 2011-2012 that did not move forward to the ballot (CRC 2011-01) §24.04 Correcting non-substantive language to the Charter Chair Stack noted he is in favor of correcting non-substantive language to the Charter and this item should remain on the agenda Chair Stack requested this item be placed on the January 2013 agenda for further discussion (CRC 2011-06) §24.03 Establish a permanent Charter Review Commission The current Commission sunsets at the end of 2016. The Commissioners felt if additional work on the Charter is necessary, a new Charter Review Commission should be established during the 2014 election to maintain the continuity of work. Place on January 2013 agenda for further discussion (CRC 2011-17) §3.03 Council Districting Place on November 2012 agenda for further discussion (CRC 2012-05) §VII OPA proposal relating to the Office of the County Attorney Place §8.02, §8.03 & Mediation (new) on the November 2012 agenda for further discussion Announcements Chair Stack noted he would not be the Chairperson of the Commission after the end of the current year and asked the Commissioners to think about who would like to serve or who they would like to nominate to serve in the capacity of chair and vice chair. Place election of officers on November 2012 agenda Next Meeting: Monday,November 26, 2012 at 4:00 p.m. Adjournment Mr. TenBruggencate moved to adjourn the meeting at 5:23 p.m. Ms. Barela seconded the motion. Motion carried 7:0 Charter Review Commission Open Session October 22, 2012 Page 13 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.