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HomeMy WebLinkAbout2012_1126_CharterAgendaPacket Patrick Stack Members: Chair Mary Lou Barela Joel Guy Ed Justus Carol Suzawa James Nishida,Jr. Vice Chair Jan TenBruggencate COUNTY OF KAUAI CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday,November 26, 2012 4:00 p.m. or shortly thereafter Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, L1hu'e, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of October 22, 2012 BUSINESS CRC 2012-13 Election of Chair and Vice-Chair for 2013 CRC 2012-14 Review and discussion of the final results of the 2012 Charter Amendments CRC 2012-11 Commissioner Justus' proposed new Article XXXIII to the Charter creating a Commission to provide oversight of the County Attorney(Deferred from 10/22/12) CRC 2011-17 Proposed amendment from Commissioner Justus revising Article III, County Council, Section 3.02 Composition, Section 3.03 Terms, and Section 3.04 Qualifications relating to Partial Districting(deferred from 6/25/12) c. Special Committee proposed amendment for County Council Partial Districting (Four District/Three At-Large) d. Special Committee proposed amendment for County Council Districting—Seven Districts, At-Large CRC 2012-05 Proposed changes from Commissioner Ed Justus to Article VIII, County Attorney, Sec 8.02, 8.03 and mediation(deferred from 8/27/12) ANNOUNCEMENTS Next Meeting: Monday, January 28, 2013 at 4:00 pm in the Mo'ikeha Building, Meeting Room 2A/B ADJOURNMENT An Equal Opportunity 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 testimony Charter Review Commission Attn: Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 L-1hu`e, HI 96766 E-mai1:bdavis(a),kauai.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—November 26, 2012 2 j COUNTY OF KAUAI �bftw Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I October 22,2012 Location Mo'ikeha Building, Meeting Room 2A/2B 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 tgpin of f Mayor'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. C1,5 4 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 9 � CD N W Charter Review Commission Open Session October 22, 2012 Page 2 SUBJECT DISCUSSION ACTION and who appoints the Salary Commission. The common reaction is "it 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 XXXHI to the Charter creating a Commission to provide oversight of the County Attorn eX 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 Charter Review Commission Open Session October 22, 2012 Page 3 SUBJECT DISCUSSION ACTION branch when they are supposed to represent the entire county; it helps to remove that potential misunderstanding. 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 7t'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 commenf 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). Charter Review Commission Open Session October 22, 2012 Page 4 SUBJECT DISCUSSION ACTION 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? 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 Charter Review Commission Open Session October 22, 2012 Page 5 SUBJECT DISCUSSION ACTION departments provide a service to the community whereas the county attorney provides a service to the entity, the County of Kauai. 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 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 Charter Review Commission Open Session October 22, 2012 Page 6 SUBJECT DISCUSSION ACTION 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 represents. Attorney Winn responded the County, which is all of the 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. Charter Review Commission Open Session October 22, 2012 Page 7 SUBJECT DISCUSSION ACTION 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 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 our finger and it is not at the county attorney's office, it is the mayor's Charter Review Commission Open Session October 22, 2012 Page 8 SUBJECT DISCUSSION ACTION 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 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, the Charter Review Commission Open Session October 22, 2012 Page 9 SUBJECT DISCUSSION ACTION 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 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 Charter Review Commission Open Session October 22, 2012 Page 10 SUBJECT DISCUSSION ACTION 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 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 Charter Review Commission Open Session October 22, 2012 Page 11 SUBJECT DISCUSSION ACTION 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 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 this comes up. Mr. TenBruggencate moved to defer this item to 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 Mr.Nishida said he would vote against the request for input from the motion. 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. Charter Review Commission Open Session October 22, 2012 Page 12 SUBJECT DISCUSSION ACTION 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 changes to make so she will also be voting against the amendment. Motion on the amendment failed 3 ayes (Justus, Guy, Stack): 4 nays (Barela,Nishidk Suzawa, TenBruggencate) Motion to defer carried 6:1 (nay—Justus 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 Charter Review Commission Open Session October 22, 2012 Page 13 SUBJECT DISCUSSION ACTION (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 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting. Patrick Stack o° » Members: Chaim Mary Lou Barela +na`" Joel Guy Carol Suzawa �a� Ed Justus Vice-Chair ° James Nishida,Jr. Jan TenBruggencate Amendments to the Charter of the County of Kauai 1. An Amendment Relating to the Mayor's Compensation Charter Amendment Article VII,Section 7.03 of the Kauai County Charter shall be amended to read as follows: ARTICLE VII MAYOR "Section 7.03. Compensation. The salary of the mayor shall be [$19,000.00 per annum which shall be subject to change by the council. The salary of any incumbent shall be reduced only in the event that a general reduction in salaries of all county officers and employees is simultaneously effected] established in accordance with the provisions of Article XXIX of this Charter." Note: Charter material to be repealed is bracketed. New charter material is underscored. Ballot Question: Should the Mayor's salary be established by the Salary Commission? ➢ Yes: 17,686 69.0% (passed by 13,116 votes) No: 4,570 17.8% Blank: 3,342 13.0% Over: 16 0.1% An Equal Opportunity Employer CRC 2012-14 2. An Amendment Relating to County Board and Commission Member Terms Charter Amendment Section 23.02 H of the Kauai County Charter is amended to read as follows: ARTICLE XXIII GENERAL PROVISIONS "Section 23.02 Boards and Commissions. H. No member of any County board or commission shall be eligible for more than two consecutive terms on the same board or commission [or on two different boards or commissions of the county]. No person shall be eligible to serve on two different County boards or commissions at the same time. After the expiration of two consecutive terms on a board or commission, a member [no person] shall not be eligible for [appointment] reappointment to [any] the same [county] board or commission until one year has elapsed after such service. Any partial term of more than two years shall be considered a term as used herein." Note: Charter material to be repealed is bracketed. New charter material is underscored. Ballot Question: Should a county board or commission member whose term is ending be allowed to serve on a different county board or commission without being required to wait one year? Yes: 8,892 34.7% ➢ No: 13,244 51.7% (defeated by 4352 votes) Blank: 3,442 13.4% Over: 36 0.1% 3. An Amendment Relating to the Election of County Officers Charter Amendment Article I,Section 1.03 of the Kauai County Charter shall be amended to read as follows: ARTICLE I THE COUNTY AND ITS GOVERNMENT "Section 1.03. County Elections. [A. In general. County elections shall be conducted in accordance with the election laws of the State insofar as applicable, but all elective officers shall be elected by nonpartisan elections. Except as otherwise provided in this charter, such nonpartisan Charter Review Commission-Updated 11/14/12 Page 1 elections shall be held in conjunction with the primary and general elections of the applicable year in which the terms of the mayor, council members, or prosecuting attorney, respectively, end. B. First nonpartisan election. To the extent possible, the first nonpartisan election shall be held in conjunction with the primary election of the applicable year. 1. Offices of the Mayor,Prosecuting Attorney and Council members to be elected by districts, if any. In the case of the offices of mayor, prosecuting attorney, or any council members to be elected by districts, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. However, if there is only one candidate for each of said offices, such candidate shall be elected. 2. Office of At-Large Council Members. The candidates receiving the highest number of votes shall be elected to fill each vacant at-large council office provided the candidate or candidates receive at least thirty percent of all votes cast for all at-large council offices. In the event of a tie for the last remaining at-large council office the candidates receiving the same number of votes shall be placed on the ballot for the second nonpartisan election. C. Second nonpartisan election. To the extent possible, the second nonpartisan election shall be held in conjunction with the general election for the applicable year. 1. Offices of the Mayor, Prosecuting Attorney, and Council members to be elected by districts, if any. Unless a candidate for mayor,prosecuting attorney, or council members to be elected by district, if any, is elected in the first nonpartisan election, the names of the two candidates receiving the highest number of votes for these offices in the first nonpartisan election shall be placed on the ballot for the second nonpartisan election. At the second nonpartisan election the candidates receiving the highest number of votes for mayor, prosecuting attorney and district council member,respectively, shall be elected. 2. Office of At-Large Council members. a. If any at-large council office remains to be filled after the first nonpartisan election, two candidates for each vacant at-large council office shall be placed on the ballot. The names of the candidates receiving the highest number of votes cast in the first nonpartisan election, other than the name of any candidate elected after the first nonpartisan election, shall be placed on the ballot until a sufficient number of candidates are on the ballot as provided in this subsection. At the second nonpartisan election, the candidates receiving the highest number of votes for each vacant at-large office shall be elected. 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. Charter Review Commission-Updated 11/14/12 Page 2 D. In any subsequent publication of the foregoing sections the term "first nonpartisan election" and "second nonpartisan election" may be changed to "primary election" and"general election",respectively.] A. Nonpartisan Elections. CountYelections shall be conducted in accordance with the election laws of the State insofar as applicable, but all elective county officers shall be elected by nonpartisan elections. B. Offices of the Mayor and Prosecuting Attorney. 1. For the offices of mayor and prosecuting attorney, the names of the two candidates receiving the highest number of votes for these offices in the primary election shall be placed on the ballot for the general election. However, if there is only one candidate for each of said offices, such candidate shall be elected in the primary election. 2. At the izeneral election, the candidates receiving the highest number of votes for mayor and prosecuting g ttorney shall be elected. 3. Tie votes. In the event of a tie vote for mayor and prosecuting attorney in the primary or general election, the winner shall be determined by a method of chance as determined by the county clerk. C. Office of At-Large Council members. 1. For at-large council offices, two candidates for each vacant at-large council office receiving the highest number of votes in the primary election shall be placed on the ballot for the general election. 2. At the general election, the candidates receiving the highest number of votes for each vacant at-large council office shall be elected. 3. Tie votes. In the event of a tie vote for the last remaining g t-large council office in the primary election, the candidates receiving the same number of votes shall be placed on the ballot for the general election. In the event of a tie vote for the last remaining g t-large council office in the general election, the winner shall be determined by a method of chance as determined by the county clerk." Note: Charter material to be repealed is bracketed. New charter material is underscored. Charter Review Commission-Updated 11/14112 Page 3 Ballot Ouesdon: 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? ➢ Yes: 16,400 64.0% (passed by 10,556 votes) No: 5,844 22.8% Blank: 3,354 13.1% Over: 16 0.1% 4. An Amendment Relating to Submission Requirements for Initiative and Referendum Petitions. Charter Amendment Article XXII,Section 22.03 of the Kauai County Charter shall be amended to read as follows: ARTICLE XXII INITIATIVE AND REFERENDUM "Section 22.03. Submission Requirement. A. Voters seeking to propose an ordinance by initiative shall submit an initiative petition addressed to the council and containing the full text of the proposed ordinance. The initiative petition shall be filed with the clerk of the council at least ninety-six (96) hours prior to any regular council committee meeting. B. Voters seeking referendum of an ordinance shall submit a referendum petition addressed to the council, identifying the particular ordinance and requesting that it be either repealed or referred to the voters of the county. C. Each initiative or each referendum petition must be signed by registered voters comprising not less than twenty percent (20%) of the number of[eligible] voters re gist 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 referendum petitions must be submitted not less than one hundred twenty(120) calendar days prior to the day scheduled for the general election in the county." Note: Charter material to be repealed is bracketed. New charter material is underscored. Charter Review Commission-Updated 11/14/12 Page 4 Ballot Question: Should it be clarified that an initiative or referendum petition must be signed by registered voters comprising the established percentage of the number of voters registered in the last election? ➢ Yes: 15,463 60.4% (passed by 10,656 votes) No: 4,807 18.8% Blank: 5,336 20.8% Over: 8 0.0% 5. An Amendment Relating to Initiation of Charter Amendments Charter Amendment Article XXIV,Section 24.01 of the Kauai County Charter shall be amended to read as follows: ARTICLE XXIV CHARTER AMENDMENT "Section 24.01. Initiation of Amendments. Amendments to this charter may be initiated only in the following manner: A. By resolution of the council adopted after two readings on separate days and passed by a vote of five or more members of the council. B. By petition presented.to the council, signed by registered voters comprising not less than five percent (5%) of the number of voters registered in the last general election, setting forth the proposed amendments. Such petitions shall designate and authorize not less than three nor more than five of the signers thereto to approve any alteration or change in the form or language or any restatement of the text of the proposed amendments which may be made by the county attorney. Upon filing of such petition with the council, the county clerk shall examine it to see whether it contains a sufficient number of[apparently genuine] valid signatures of re gist voters." Note: New charter material is underscored. Ballot Question: Should it be clarified that a petition for a charter amendment must be signed by registered voters comprising the established percentage of the number of voters registered in the last election? Charter Review Commission-Updated 11/14/12 Page 5 ➢ Yes: 16,018 62.5% (passed by 11,725 Votes) No: 4,293 16.8% Blank: 5,292 20.7% Over: 11 0.0% 6. An Amendment Relating to Salary Commission and to General Provisions Charter Amendment Article XXM Section 29.01 and Article XXIH,Section 23.01 of the Kauai County Charter are amended to read as follows: ARTICLE XXIX SALARY COMMISSION "Section 29.01. Organization. There shall be a Salary Commission composed of seven members to establish the maximum salaries of all [councilmembers and all officers and employees included in Section 3-2.1 of the Kauai County Code 1987, as amended] elected and appointed officers as defined in Section 23.01 D of this Charter. Section 29.02. Policies. The commission shall adopt and, when it deems necessary, may change the policies governing its salary-setting decisions. Section 29.03. Resolution. The commission's salary findings shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15 of M calendar year. [Subject to Section 29.05,the] The resolution shall take effect without the mayor's and council's concurrence sixty days after its adoption by the commission unless rejected by a vote of not less than five members of the council. The council may reject either the entire resolution or any portion of it. The respective appointing authority may set the salary of an appointee at a figure lower than the maximum figure established by [ordinance] the salary commission for the position. Provided however, elected officers may voluntarily accept a salary lower than the maximum figure established by the salary commission for their position,or forego acceptin ag salary. Section 29.04 Rules. The commission shall establish its rules of procedures and adopt rules and regulations pursuant to law. Section 29.05 [Changes in Sal ary. No change in salary of councilmembers shall be effective during the term in which a change is enacted or for twenty-four months after a change is enacted,whichever is less. Section 29.06] Administration and Operation. The mayor and council shall provide an Charter Review Commission-Updated 11/14112 Page 6 annual appropriation sufficient to enable the commission to secure clerical or technical assistance and pay other operational costs in the performance of its duties." ARTICLE XXIII GENERAL PROVISIONS "Section 23.01.Definitions. D. The term 'officer" shall include the following: (1) Mayor prosecuting attorney, and members of the council. (2) Any person excluded from Chapter 76, HRS and the position classification plan who is appointed as administrative head of any department or agency of the county or as a member of any board or commission. (3) [The first deputy] Deputies appointed by the administrative head of any department or agency of the county who are excluded from Chapter 76, HRS and the position classification plan. [(4) Deputies of the county attorney.]" Note: Charter material to be repealed is bracketed. New charter material is underscored. Ballot Question L 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? ➢ Yes: 17,924 70.0% (passed by 14,216 votes) No: 3,708 14.5% Blank: 3,968 15.5% Over: 14 0.1% Ballot Question 2. Should the waiting period be eliminated before council's salary changes become effective? Yes: 7,893 30.8% ➢ No: 13,754 53.7% (failed by 5,861 votes) Blank: 3,923 15.3% Over: 44 0.2% ############################### Charter Review Commission-Updated 11114112 Page 7 County Council's proposal on budget procedures modification: Yes: 10,578 41.3% No: 10,937 42.7% (failed by 359 votes) Blank: 4,057 15.8% Over: 42 0.2% Charter Review Commission-Updated 11/14/12 Page 8 Attorney Commission Amendment Article XXXIII—Attorney Commission Section 33.01. Organization. There must be an Attorney Commission composed of seven members not employed in government service. Of the seven members, the Mayor and the Council must each appoint three members each, and one additional member is selected by the members previously appointed by the Mayor and Council. Members appointed by the Mayor must be removed by the Mayor with approval from Council. Members appointed by the Council must be removed by the Council with the approval of the Mayor. The one additional member selected by the previously appointed members may be removed by the Mayor with the approval of Council. {follows language in Section 23.021 Section 33.02. Goal. The goal of the Attorney Commission is to provide an independent process in the selection, removal, and general oversight of the County Attorney in order to provide a balanced environment where the County Attorney can serve the all branches of the County. Section 33.03. Requirements. Two of the three members appointed by the mayor and two of the three members appointed by the council must either have been or be licensed to practice law in the State of Hawaii, and must be in good standing before the Supreme Court of the State of Hawaii. Section 33.04. Rules. The commission shall establish its rules of procedures and adopt rules and regulations pursuant to law. {follows language in Section 29.041 Section 33.05. Powers, Duties, and Functions. The Attorney Commission shall: A. Have the power to appoint and remove both the County Attorney by majority vote of its members. B. Review the annual budgets prepared by the County Attorney and make recommendations thereon to the Mayor and Council. C. Review the departments'operations, as deemed necessary,for the purpose of recommending improvements to the County Attorney. D. Evaluate at least annually the performance of the County Attorney and submit a report to the Mayor and the Council. E. Hear complaints of citizens concerning the County Attorney, its department, or its personnel, and, if the commission deems necessary, make recommendations to the County Attorney on appropriate corrective actions. CRC 2012-11 F. Submit an annual report to the Mayor and the Council regarding its activities. G. Except for purposes of inquiry or as otherwise provided in this charter, neither the commission nor its members shall interfere in any way with the administrative affairs of the County Attorney. (follows language in Section 11.03) Section 33.05. Administration and Operation. The Mayor and Council shall provide an annual appropriation sufficient to enable the commission to secure clerical assistance and pay other operational costs in the performance of its duties. {follows language in Section 29.06} Additional Section to be Changed by this Amendment: Article VIII —County Attorney Section 8.02.—Appointment and Removal. The eCounty aAttorney shall be appointed and be removed by the Attorney Commission. Section 8.08. —Vacancy. If there is vacancy in the position of County Attorney by either removal, retirement resignation, or death, the First Deputy County Attorney shall serve as Acting-County Attorney until the Attorney Commission has appointed anew County Attorney. (suggestion) Proposed Ballot Question: Shall there be an Attorney Commission, whose function is to appoint and remove and have oversight of the County Attorney, with its members appointed jointly by the Mayor and Council? CRC 2012-11 County Council- Partial Districting(Four District/Three At-Large) 1. "Section 3.02. Composition.There shall be a council of seven members [elected at-large]. Three members shall be elected at-large by all registered voters in the county. Each of the other four members shall reside in and shall be elected from a separate council district by registered voters residing in that separate council district. Section 3.03. Terms. The terms of office of[councilmembers] council members shall be for two years beginning at twelve o'clock meridian on the first working day in December following their election. No person shall be elected to the office for more than four consecutive two year terms. Section 3.04. Qualifications. A. To be eligible for the council, a person must be a citizen of the United States and must have been a duly.qualified [elector] registered voter of the county for at least two years Immediately preceding his or her filing candidacy papers for election [or appointment]. In addition,those candidates for the council who intend to represent one of the four council districts must state which district they intend to represent and that they have been a registered voter of that district for the preceding ninety days. Should a council member move from, or be removed from, any of the seven council positions from which that person was elected, any replacement appointee must meet all reaulrements of a candidate for that position. B. Any [councilman] council member who removes his or her residence from the county or district from which elected, or is convicted of a felony,shall immediately forfeit his or her office. Section 3.19. District Election and Reappointment. A. The first election by separate council districts shall be in the primary election of 2016. B. The year 2021 and every tenth year thereafter shall be district reapportionment years. C. An initial council district apportionment commission shall be constituted on or before the first day of April, 2015. A council district reapportionment commission shall be constituted on or before the first day of July of each district reapportionment year or whenever district reapportionment is required by court order. The commission shall consist of seven CRC 2011-17 c. members. The members of the commission shall be appointed by the mayor and confirmed by the council. The initial council district apportionment commission shall be responsible for designating the aeograohic boundaries of the council districts provide for above. The council district reapportionment commission shall be responsible for the reapportionment and redistricting of those districts. The commission shall elect a chair from among its members. Any vacancy in the commission shall be filled in the same manner as for an original appointment. The commission shall act by the majority vote of its membership and shall establish its own procedures. No member of the commission shall be eligible to become a candidate for election or appointment to the council in the initial election held under any apportionment or reapportionment plan adopted by the commission. The commission shall be furnished all necessary technical and secretarial services. The mayor and the council shall appropriate funds to enable the commission to carry out its duties. D. In effecting the initial apportionment and each subsequent reapportionment,the commission shall be guided and comply with all applicable Federal and State Laws. E. on or before February 1 of the year following appointment,the commission shall file with the county clerk an apportionment or reapportionment plan,which shall become effective upon its filing. F. Any registered voter may petition the proper court to compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in the district apportionment or reapportionment plan,or the court may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition must be filed within forty-five calendar days after the filing of the plan. G. The commission's tenure shall end upon the filing of its plan." (Deleted material is bracketed;new material is underlined) 2. Ballot Question— Effective 2016,shall four of the seven council members be elected by districts (North, East, South/Central,West) and three of the seven council members be elected at-large,with a commission to be appointed in 2015 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? (All f-40 County Council- Seven Districts,At-Large 1. "Section 3.02. Composition.There shall be a council of seven members [elected at-large]. All members shall be elected at-large by all registered voters in the county. Each of the seven members shall reside in and shall be elected from a separate council district. Section 3.03.Terms. The terms of office of[councilmembers] council members shall be for two years beginning at twelve o'clock meridian on the first working day in December following their election. No person shall be elected to the office for more than four consecutive two year terms. Section 3.04. Qualifications. A. To be eligible for the council, a person must be a citizen of the United States and must have been a duly qualified [elector] registered voter of the county for at least two years immediately preceding his or her filing candidacy papers for election [or appointment]. In addition,candidates for the council must state which district they intend to represent and that they have been a registered voter of that district for the preceding ninety days. Should a council member move from,or be removed from, any of the seven council positions from which that person was elected, any replacement appointee must meet all requirements of a candidate for that position. B. Any [councilman] council member who removes his or her residence from the county or district from which elected,or is convicted of a felony, shall immediately forfeit his or her office. Section 3.19. District Election and Reappointment. A. The first election by separate council districts shall be in the primary election of 2016. B. The year 2021 and every tenth year thereafter shall be district reapportionment years. C. An initial council district apportionment commission shall be constituted on or before the first day of April, 2015. A council district reapportionment commission shall be constituted on or before the first day of July of each district reapportionment year or whenever district reapportionment is required by court order. The commission shall consist of seven members. The members of the commission shall be appointed by the mayor and confirmed by the council. CRC 2011-17 d. CI The initial council district apportionment commission shall be responsible for designating the geographic boundaries of the council districts provide for above. The council district reapportionment commission shall be responsible for the reapportionment and redistricting of those districts. The commission shall elect a chair from among its members. Any vacancy in the commission shall be filled in the same manner as for an original appointment. The commission shall act by the majority vote of its membership and shall establish its own procedures. No member of the commission shall be eligible to become a candidate for election or appointment to the council in the initial election held under any apportionment or reapportionment plan adopted by the commission. The commission shall be furnished all necessary technical and secretarial services. The mayor and the council shall appropriate funds to enable the commission to carry out its duties. D. in effecting the initial apportionment and each subseauent_reapportionment,the commission shall be guided and comply with all applicable Federal and State Laws. E. On or before February 1 of the year following appointment,the commission shall file with the county clerk an apportionment or reapportionment plan,which shall become effective upon its filing. F. Any registered voter may petition the proper court to compel, by mandamus or otherwise the appropriate person or persons to perform their duty or to correct any error made in the district apportionment or reapportionment plan,or the court may take such other action to effectuate the purposes of this section as it may deem appropriate. Any such petition must be filed within forty-five calendar days after the filing of the plan. G. The commission's tenure shall end upon the filing of its plan." (Deleted material is bracketed;new material is underlined) 2. Ballot Question— Effective 2016, shall keur ef the seyeR council members be elected by districts at-large (North, East, South/Central, West) and—thr^^ ^{t!'.^_ __.. ^.ril mamlaarr he ale-c-ted at large •ate► with a commission to be appointed in 2015 to establish district apportionment, and shall 2021 and every tenth year thereafter be a district reapportionment year? Revised 6/18/12 Suggested Changes to County Attorney(Article VIII)from Community Input: 8.02—Appointment and Removal—Both the Mayor and the Council shall have the power to appoint, discipline, and remove the County Attorney. The mayor may appoint and remove the County Attorney with the vote of 213 approval from the Council.Also, the Council may appoint and remove the County Attorney with a vote of two-thirds majority, with the approval of the Mayor. If the Mayor does not approve either the appointment or the removal of the County Attorney, the Council has the power to override Mayor's approval with a full approval vote of the Council. 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 of Hawaii for at least three five years. 8._--Mediation—(Concept is that there will be a mediation team for the County. All lawsuits against the county shall first be given the option of employing mediation to resolve issues. If the issues are not resolved,then it shall go to court) Cnwnri tho-iFfunfeign- if the Revised 8127112 0102012-05