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HomeMy WebLinkAbout2012_0423_Minutes_Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 5/21/12 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I April 23, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:00 p.m. End of Meeting: 6:31 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, Administrative Aide Teresa Tamura Public Testifiers: Mel Rapozo; Jake Delaplane; Jay Furfaro; Gary Heu; Shaylene Iseri-Carvalho; Wally Rezentes, Jr. Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:00 p.m. with 6 Commissioners present; the 7th member arrived shortly thereafter Approval of Regular Open Session Minutes of March 19, 2012 Ms. Barela moved to approve the minutes of Minutes March 19 as circulated. Mr. TenBruggencate seconded the motion. Motion carried 6:0 Regular pen Session Minutes of Special Meeting April 2, 2012 Mr. Justus moved to approve the minutes of April 2 as circulated. Ms. Barela seconded the motion. Motion carried 6:0 Business Before deliberation began on the proposed amendments on the agenda, Ms. Morikami reminded the Commissioners that based on the State Elections requirements the Office of Boards & Commissions determined that March 19 needed to be the last day to consider proposed amendments to meet the overall timeline for the 2012 ballot. Based on today's agenda items, if the Commission were to vote in final form on any agenda item by the end of the meeting, it would be submitted to the legal analyst along with the 5 previously approved amendments. Mr. TenBruggencate wanted to clarify that after the meeting, anything the Charter Review Commission Open Session April 23, 2012 Page 2 SUBJECT DISCUSSION ACTION Commission would be working on would be for the 2014 ballot. Ms. Morikami said correct considering the Commission had already passed the original deadline by one month. This now shortens the time for the legal analyst to complete their work by 1/2 month and shortens the time for the County Attorney's legal review by 1/2 month to keep up with the schedule. Ms. Morikami could not confirm but had heard there were two possible proposed amendments through the County Council and had not heard of any from the public. Mr. TenBruggencate asked what deadlines were faced by any citizen proposals. Ms. Morikami said it would be the same based on the County elections. Mr. TenBruggencate asked if the Charter Commission was being held to a higher standard than the County Council and the citizens in terms of timing. Ms. Morikami said no because based on past practice the Commission wanted the legal analyst to put the proposals in final form to be returned to the Commission to review and approve before going back to the County Attorney for the final legal review. CRC 2012-02 Deliberation and decision-making on a possible amendment to Kauai County Charter related to Article VII, Section 7.05 as to the Mayor's authority over commission-appointed department heads (ongoing) Mel Rapozo, spoke as an individual Councilmember, and advised the Commission that there were a couple of charter amendments being proposed by the County Council which require two readings of the Resolution before it can be passed. One of the proposals is to clarify that the Mayor would not have the authority over the Commission appointed department heads but it has not made it to the first reading. Mr. Rapozo said that he believed the Council had until the end of next month for proposals and Mr. TenBruggencate should check with the County Clerk on the timeline. Mr. Rapozo did say he did not know what the internal policy Charter Review Commission Open Session April 23, 2012 Page 3 SUBJECT DISCUSSION ACTION was for the Charter Commission and they would have to abide by those policies. Mr. Rapozo felt it was clear that the Mayor's authority should not reach into the Commission appointees and thought that was the way the structure was originally set up. Mr. Rapozo said that the Police Commission was seeking a declaratory judgment but was not sure how long it would take. Mr. Rapozo said a lot of the legal community has interpreted that the Commission is responsible for the Commission appointed Department Head but our Mayor and our County Attorney apparently do not feel that way so maybe a clarification is necessary. Mr. Rapozo said he would not like to see the Charter changed every time there was a dispute on an interpretation but this was critical and what occurred in the last few months caused substantial disruption to our public safety system. Mr. Rapozo said he was submitting a Resolution that would provide a Charter amendment to clarify the authority "except for those commission appointed and legislative branches of government". That Resolution requires 2 readings plus a super-majority of 5 votes to move it forward. Asked what his second charter proposal was, Mr. Rapozo said it was to provide the Office of Counsel Services with its own legal counsel but he did not think they would get the 5 votes for it. Councilmember Furfaro has also submitted a Resolution to clarify"shall and may". Mr. Rapozo said another one he was submitting was to tighten up the financial reporting from the Finance Department to the Council. Mr. Justus asked Mr. Rapozo for copies of what he was submitting to avoid a duplication of efforts. Attorney Winn asked the Commission to return to the agenda item which was the Mayor's authority over commission-appointed department heads rather than what the Council is doing. Charter Review Commission Open Session April 23, 2012 Page 4 SUBJECT DISCUSSION ACTION Mr. Nishida said he agreed with Mr. Rapozo about not making (unnecessary) changes to the Charter since it seemed it was a personnel problem that occurred. With a declaratory judgment coming up it does seem premature to propose a change to the Charter before hearing what the court has to say. Mr. Nishida also felt the Charter was clear as it was stated. Mr. Rapozo said that the recent interpretation of the Charter could be subject to the same interpretation by the next Mayor or the next Chief so this is not to just resolve this issue that occurred but to rectify any potential problems going forward. Mr. Rapozo said that the Commissions need to be insulated from the political powers of the Administration. Ms. Suzawa asked if the language Mr. Rapozo was working on would be reflected only in Section 7.05 and not under the individual commission sections of the Charter. Mr. Rapozo said that was correct. Chair Stack said with the forthcoming declaratory judgment would it not be redundant for the Charter Commission to be doing what the Police Commission could do or the County Council. Chair Stack said he heard Mr. Rapozo say this was the Charter Commission's responsibility and we should make this an amendment. Mr. Rapozo said no, the Charter Commission's responsibility is to determine what is in the best interest of the community because no one knows what the Judge is going to say with the declaratory judgment. Mr. Rapozo said he will be submitting his proposed amendment but believed it should go parallel with the Charter Commission in case his amendment does not make it on the Council side. Regardless of the court decision, if the Charter Commission feels the Mayor does not have the authority over Commission appointed department heads the language should be clarified. Charter Review Commission Open Session April 23, 2012 Page 5 SUBJECT DISCUSSION ACTION Ms. Suzawa said the Commission struggles with language and did not think it was the Commission's intent to change the Charter but rather just to clarify it and asked if the Commission could see Mr. Rapozo's proposed language. Mr. Guy said in the past the Commission had been challenged with the question of whether the Mayor should be a stronger Mayor system and whether the Mayor should hire and fire his department heads That was not the way the Charter Commission wanted to move forward. The Commissions wanted to have that insulation within their department heads and we agreed that was the intent of what the Commissions were there for. While we want the change, everybody is saying it is already clear based on the current language and that the Mayor overstepped his authority. Jake Delaplane, First Deputy Prosecuting Attorney, thought there was a need for clarity because the County Attorney's opinion covered the powers as it relates to the appointed department heads. It raises a question whether that power extends to an elected department head who is appointed by the people and in a similar issue. Jay Furfaro, County Council,thanked the Charter Commissioners for their service. The Council has the opportunity to submit its own Charter amendments but wanted to see what the Charter Commission produced. Gary Heu, Managing Director, said he was hearing from different entities that perhaps the Charter does not need to be changed. Mr. Rapozo said the legal opinions he had heard said the Charter was crystal clear and the Mayor had overstepped his authority. That is not necessarily the message that Mr. Heu was hearing. There are a lot of different opinions and perspectives on the Charter and the legal guidance provided by the County Attorney' Office fairly clearly states that the Mayor was well within his Charter Review Commission Open Session April 23, 2012 Page 6 SUBJECT DISCUSSION ACTION authority in taking the actions he did in this case. It is difficult for the Commission and the public to digest some of this because the actions taken were based on a specific set of circumstances which the Commission is not privy to those specific circumstances that existed. What they were exposed to was the chatter in the public about who is right and who is wrong. Mr. Hen said he believed the Mayor was in agreement that there was not a need to change the Charter. Mr. Heu asked the Commission if they had seen the opinion from the County Attorney's Office relative to this authority issue. Mr. TenBruggencate said he was disappointed knowing that this Commission has been wrestling with this issue for some weeks and had not been provided with any legal justification from the Administration or the County Attorney's Office. Mr. TenBruggencate felt the Charter was crystal clear and the legal authorities he spoke with have agreed with that. He said he was prepared to leave this in the hands of the courts for now. Something may be broken but it is not the language of the Charter which does not need to be changed. The intent of the Charter, based on its plain language, is that the Mayor does not have employment authority of any kind over those specific Commission-appointed department heads that the Charter references. The opinion might have been instructive but given the time considerations,the Commission may not be able to do anything for this election. Mr. Hen urged the Commission to seek out the County Attorney's opinion, if nothing more than for their edification purposes. The Charter does provide for the Mayor to provide the daily oversight over all departments and having oversight and supervisory responsibility over the day-to-day operations implies things such as discipline. The Charter is certainly very clear on the hiring and removal of a Commission-appointed department head. But in the day-to-day discipline and guidance of an Charter Review Commission Open Session April 23, 2012 Page 7 SUBJECT DISCUSSION ACTION department/department head, it would be tough to provide that oversight and be responsible for that oversight if there was not some level of authority over providing that guidance and discipline. Mr. Heu wanted to keep that separate and apart from any discussion on what the Charter says but from a management perspective it would be difficult to have the responsibility and oversight to manage an operation but not have the authority to provide guidance and discipline. Mr. TenBruggencate said he understood in this situation there were a couple of unique circumstances which did not make it a standard disciplinary oversight case. Mr. TenBruggencate agreed that it would be difficult to discipline someone over whom you have titular authority but not the hiring and firing authority. The Charter anticipated that the running of the County would not be easy. Chair Stack said he heard Mr. Heu say he wished the Commission was aware of the details and they might have a different opinion so why not make those details transparent, if not to the public, at least to the Commission. Mr. Heu said it would be difficult for the Commissioners to digest all of this while not understanding the unique set of circumstances that surrounded the actions. As to sharing the details, that was something Mr. Heu was not able to do because it involved a number of personnel matters. Mr. Rapozo said the absolute deadline to submit any charter amendments to the Elections Office is August 23, 2012. The Charter requires a 30-day publishing by the Charter Commission, at least once, prior to the election. Your deadline to the County Clerk is August 22 in final form(ballot ready). The Council's own review period is from July 12 to August 22. Sha lene Iseri-Carvalho, Prosecuting Attorney, said it was of concern to Charter Review Commission Open Session April 23, 2012 Page 8 SUBJECT DISCUSSION ACTION learn that morning that this would be the last meeting to consider amendments because they had been working diligently to get their amendments as quickly as possible to the Commission. While she was aware of the County Council's date, she was not aware of the Commission's deadline and they would gladly welcome more time to provide input. The deadline set by the Commission's internal policies coincides directly with the time they are all stuck in budget, here and on the State level. Ms. Iseri- Carvalho again asked the Commission if there were any opportunity to obtain additional staff so the timelines could coincide with the timelines dictated by the County Clerk which would definitely be serving the public. Looking at the Police Chief and the powers of the Mayor, Ms. Iseri- Carvalho feels the Charter was crystal clear as did Mr. TenBruggencate and Mr. Guy. While all of this is in limbo this is the kind of sentiments that we are currently operating under. It is one of uncertainty, it is one of fear, it is one of intimidation because we are unable to perform our jobs fully as expected to without these kinds of intrusions into the operations. It would be irresponsible of Ms. Iseri-Carvalho not to shed light on the negative impact or operations on public safety. Timing is of the essence to have this issue be resolved because we cannot dictate the times of the judiciary but we can clearly dictate the timing if this mater went on the ballot that there would be some sort of vote taken at the end of the November election. The worst scenario that could ever happen happened and to leave this situation in limbo, whether or not the Mayor has control over another elected official and whether he could suspend the Prosecuting Attorney or the authority to suspend any investigations done by the County Auditor's office because it is an independent agency. The Mayor has proclaimed and the opinion seems to support as stated by the Mayor's Administration that the Mayor as a Chief Executive Officer has control over all of the County employees. That was the broad statement—all County employees which makes all of us subjective to this fear, intimidation and uncertainty. There needs to be a arallel track with the declaratory ruling because it can still make the Charter Review Commission Open Session April 23, 2012 Page 9 SUBJECT DISCUSSION ACTION language better. Chair Stack asked if in Ms. Iseri-Carvalho's many submissions to the Commission, she had suggested certain words be changed within the Charter itself. Ms. Iseri-Carvalho responded yes. Mr. Justus said, through testimony,he found that there is nothing wrong with making the Charter clearer because it can only improve better legal interpretations. It also seemed to be a common opinion that the Police Chief should be free from political influence. To leave it otherwise seemed dangerous because it endangered public safety. It is important to act on this now because a lot can happen before 2014. Waiting for a declaratory ruling is not going to solve the situation because that is just for the Charter as it stands now. Mr. Justus felt the Commission should act on this now. Mr. Nishida thought the change should go into the section for the powers of the Mayor but did not know if the wording would be particular only to the commissions or particular only to disciplinary actions. Mr. Nishida thought it was clear that the Mayor was in charge of all the administrative functions of the County and he liked that. The Police Department needs a civilian control. What Mr. Nishida perceives with the Commissions is when you have a highly functioning department head working with a Commission on a monthly or bi-monthly basis you tend to develop an insular kind of function. Especially with the Police Department and the Prosecuting Attorney's Office where they can take away people's rights. Mr. Nishida liked that the Administrative functions of the departments were clear but was not sure if the changes could be discussed that will be the right changes and still meet the internal deadline. Mr. Nishida did not feel they had all the information they needed nor had they had enough discussion at this time. Charter Review Commission Open Session April 23, 2012 Page 10 SUBJECT DISCUSSION ACTION Mr. TenBruggencate said that he and Mr. Nishida had come to the same conclusion but from entirely different directions. Mr. Nishida was suggesting a wholesale change in the management of this County to a strong Mayor form of government which was not what the Commission that formed the Charter in the 1960's intended, not what they put in the language of the Charter, and he did not think this Commission had enough discussion to propose any change one way or the other. He agreed with Mr. Nishida that the Commission did not have enough information to make the changes, noting that they did not have the reasoning of the Attorney's Office opinion on which the administration acted. Lacking that reasoning, the Commission did not know which part of the Charter they were interpreting whether it was the authorities of the Mayor or the powers or lack thereof of the Commission. Lacking that Mr. TenBruggencate did not think the Commission could proceed. Ms. Barela agreed with Mr. TenBruggencate. Mr. Guy said the majority of the testimony heard at the special meeting was to strengthen the Charter. Mr. Guy also did not like changing the Charter to chase every objection but there was clarification wanted. Mr. Guy said he was looking forward to moving forward to strengthening the Police Commission's authority and not creating such a strong Mayor. Chair Stack stated that the Commission had several choices one of which was to table the item, come up with a motion to support what testimony has suggested be done but they should not drag this issue on. It is the Mr. TenBruggencate moved to defer this item to Commission's responsibility to come to a collective decision that reflects the next meeting. Mr. Nishida seconded the the will of the people of the County. motion. Roll Call Vote: Barela—Aye; Guy—Nay; Mr. TenBruggencate said his motion actually defers this item to the 2014 Justus—Nay; Stack—Nay; Suzawa—Nay; ballot but keeps it alive and it will be on the next agenda. TenBruggencate—Aye; Nishida—Aye Charter Review Commission Open Session April 23, 2012 Page 11 SUBJECT DISCUSSION ACTION Motion failed 3:4 Ms. Suzawa said her reason for voting nay was because she wanted to hear from Councilmember Rapozo to know if there was something out there first before making her final decision. Mr. Guy said he was not against voting to support that type of effort later but just could not do that now. Mr. Rapozo said he would go to his office to get a copy of the draft language of his proposed amendment and reminded the Commission that they were independent and the deadline to Council was August 22nd in final form. If it is a staffing issue he highly suggested the Commission send a letter to the County Council for staff support, which by the Charter they Mr. Justus made a motion to defer this item to have to provide. The Commission determines and sets the schedule and the bottom of the agenda. August 22nd is the deadline the Commission needs to work by. Chair Stack asked Ms. Morikami about the difference in the dates because he found the Commission's support staff to be exceedingly efficient. Ms. Morikami said she had a note that Chair Furfaro had told staff that the Council's cut-off date is June 1. The Boards and Commissions timeline is longer because an outside legal analyst has been secured to review the proposed amendments and prepare the Findings and Purpose and the Ballot Question for the Commission's review. Once the Commission has approved the proposals to that point, they are then forwarded to the County Attorney's Office for final legal review. After the legal review has been completed, the Communications Team has to prepare the educational information for the voters. All proposed amendment questions are due to the State Election's Officer by August 23. Charter Review Commission Open Session April 23, 2012 Page 12 SUBJECT DISCUSSION ACTION Ms. Suzawa wanted to clarify that July 23r was the date for the Commission to give its final approval of the language for the ballot questions. Ms. Morikami advised the Commission that the March 20 date for sending proposed amendments to the Legal Analyst had been extended to the end of Mr. Guy seconded the motion. Motion to defer the April 23 meeting to take into consideration the Commission's special to the bottom of the agenda carried 6:1 meeting to take testimony for CRC 2012-02. (TenBruggencate—nay) CRC 2011-17 Proposed amendments from Commissioner Justus revising Article III, County Council, Sections 3.02 Composition, Section 3.03 Terms, and Section 3.04 Qualifications relating to Partial Districting_ a. Scope and Authority establishing�pecial Committee to consider possible amendments to the Charter related to establishing ounty Districting and possible changes in Term Limits for District Seats. b. Overview of the findings and recommendations of the Special Committee on County Districting to the Charter Review Commission,pursuant to HRS 92-2.5 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 Mr. TenBruggencate asked if the members of the Special Committee would yield to the question of which of Mr. Justus' proposals were they recommending. Charter Review Commission Open Session April 23, 2012 Page 13 SUBJECT DISCUSSION ACTION Mr. Justus said the Committee found that partial districting was only one potential answer for a need that continues to come up, not only being addressed by the Council but also by the Charter Commission. Instead of the Committee deciding which direction the Commission should go, it was decided to present four alternatives including the one proposed by Mr. Justus and the one proposed by Jonathan Jay which are part of the Sub- committee report. There was no recommendation. Ms. Suzawa said they heavily relied on item 3 instead of trying to change the way Council is elected, whether by district or members at-large, and the effort would be to get more people to be represented from different areas. They were of the opinion that the island was still not heavily enough populated to be broken up into districts. Looking at the whole island, the population is only 1/3 of the rim of the island and does not go into interior so it does not merit districting. The whole purpose was trying to get better representation from different districts and perhaps by creating neighborhood boards there would be a better way of getting the message into the Councilmembers rather than changing the Charter by creating districts at this time. Attorney Winn reminded the Commission that the Special Committee was created at the previous meeting and per the Sunshine Law this meeting was only for the Special Committee to present its findings and recommendations. The Commission could not deliberate on those findings until the next meeting. Mr. TenBruggencate moved to defer this item to the May meeting. Ms. Barela seconded the Mr. Justus asked to rise to a question of privilege to tell Attorney Winn that motion. he did not finish reading the Sub-committee report and to ask if someone was able to interject during a Sub-committee report to make a deferment. Attorney Winn replied yes. Charter Review Commission Open Session April 23, 2012 Page 14 SUBJECT DISCUSSION ACTION Motion to defer carried 5:2 Justus, Guy—nay) CRC 2012-04 Memorandum dated 11/30/11 from the Charter Review Commission to the Office of the Prosecuting Attorney requesting proposed charter language as relates to the Office of the Prosecuting Attorney, including Findings indings and Purpose a. Memorandum dated 4/10/12 from the Prosecuting Attorney's Office proposing charter amendments to Articles IXA and Article XIX relating to the Office of the Prosecuting Attorney Jake Delaplane, First Deputy Prosecuting Attorney, indicated he did receive a response from the Chief of Police on the OPA's request for a proposed Charter amendment which was one of the requests from the Charter Commission back in November for the agencies to provide input. It is a letter of April 23, 2012 from Chief Perry and concurs that the amendments are necessary and would be in support of amending the County Charter with respect to the powers, duties and functions of the Office of the Prosecuting Attorney. The proposed amendments and changes would increase efficiency towards streamlining processes while making clear the tasks and functions of the OPA. Mr. Delaplane referred to his testimony from October that the set of proposed amendments on page 2 of the communication that begin with"the prosecuting attorney may" followed by A, B, C, and D was language taken directly from the language of the Charter of the City and County of Honolulu. Mr. Delaplane then described what brought this change about for the City and County of Honolulu. At that time the Charter of the City and County of Honolulu pretty much reflected what the County of Kaua'i's Charter reflects now which gives very basic duties and functions to the Office of the Prosecuting Attorney to file charges, to take cases to Grand Jury, to interact with the Police Department and direct the Chief of Police to perform certain functions and do certain investi ations. Because the Charter language was so limited in scope that Charter Review Commission Open Session April 23, 2012 Page 15 SUBJECT DISCUSSION ACTION their participation in helping pass this legislation to streamline the judicial process was improper under their Charter. In turn, they came up with the Charter amendment which comes from H.R.S. Section 28-10.6. Under the H.R.S., each County has a Prosecuting Attorney's Office,whether it is appointed or elected, but they are delegated the powers of the Attorney General who is the chief law enforcement officer of the State and delegates his authority through the H.R.S. to each of the prosecuting attorneys in each of the counties. The contention was because these powers belong to the Attorney General and the Attorney General delegates his powers and duties to the counties then logically the counties have the same powers and duties, if they are delegated those duties. The court did not go along with that which was the need for their Charter amendment. We may be in a position in the future where clarity is needed as far as the powers, duties and functions of the Prosecuting Attorney which is why we looked to this specific language that was fully vetted in Honolulu. Mr. Nishida asked how the italicized parts related to moving/skipping the district court into the circuit court. Mr. Delaplane said they actually don't. The first part of his explanation was to show how Honolulu got into trouble with their Charter being so limited in scope and that was what was being talked about with direct filing to the circuit court. Referring to the italicized portion A, B, C, and D. Mr. Nishida said it looked like it related not so much to prosecutorial but to expanding the Prosecuting Attorney's Office into crime prevention,proposed legislative changes as well as allowing them to receive funds without going through the Administration and the County Council. Mr. Delaplane said that last part does not do that in subsection D. This is not an attempt to circumvent County Council's obligation to look at every grant expenditure and application. We would receive through the same process we go through now; it just makes it clearer that it is one of our functions to apply for and Charter Review Commission Open Session April 23, 2012 Page 16 SUBJECT DISCUSSION ACTION receive grants and do all the activities under those grants—still approved by the County Council and go through the same process. Mr. TenBruggencate said his reading of the proposal, subsection C is encompassed in B and the language of C is unnecessary and asked if there would be an objection to the removal of C for simplicity and relist item D as item C. Mr. Delaplane said that was a fair reading and the only issue he might have is that was not something the wordsmiths in the City and County of Honolulu came up with, it is drawn from the H.R.S. and is tracking the same thing as far as the powers, duties and functions of the Attorney General. Mr. Justus said he wanted to hear the second portion of the proposal that was submitted and thought the language submitted was a simplified way of solving the issue regarding the Prosecuting Attorney's budget. Mr. Delaplane said while it appears simplistic it took a lot of research through the Charter and how to fix the issue of having to do the budget two different times, reporting to the Mayor first and then going to the Council and the problem that arose from having one elected department head have control over the budget of another elected department head actually does cause problems. Overall, section 19.02 B seemed to be the easiest route to do this with one shot and as few words as possible versus amending a lot of different parts of the Charter. Since this is the section that requires the Prosecutor's Office to submit that budget to the Mayor first before going to the Council simply amending that language achieves the purpose we are trying for. Shaylene Iseri-Carvalho said the operations of the appointed department heads are totally different from the Prosecuting Attorney's Office. We are not part of what they call KCT Team which is the Kauai County Team so a Charter Review Commission Open Session April 23, 2012 Page 17 SUBJECT DISCUSSION ACTION lot of the emails and items they discuss we are not privy to because our office is an elected office and the core function is being in court or attending meetings that deal specifically with law enforcement so it is a total separate operational perspective. Even on the budget there were things such as emails that go out that we are not a part of the County Team. It makes rational sense for the elected department to be separate and apart from the Mayor's department. There is a separation between the appointed department heads and our office as it currently exists because the priority of our office simply focuses on law enforcement whereas the County Team looks at all of the different agencies and they all meet on a regular basis every week, which we have never been a part o£ Ms. Barela asked if there was a reason they did not attend the meetings and was there a choice because that has not always been the case. Ms. Iseri- Carvalho said it was for the last Administration as well. Because our scheduling is dictated by the courts, we do not have control over our operational schedules. Appointed department heads do have control over their schedule and can set their meetings. Gary Heu said the Administration would be more than pleased to have the County Prosecutor attend those weekly meetings. She was correct that the meetings are at a designated time of 9:00 a.m. every Monday and the invitation was extended to the previous Prosecutor who, for whatever reason, typically did not attend those meetings. The Water Department is also in the same kind of boat where they are a semi-autonomous entity and do not rely on the County General Fund for their budget and the Manager- Chief Engineer, Mr. Craddick, has attended those meetings for the last year or so and when he can't attend he sends his Deputy. We would be more than happy to have the Office of the Prosecuting Attorney represented at those meetings because there is a lot of information shared at those meetings relative to the operations in general, budget and other global Charter Review Commission Open Session April 23, 2012 Page 18 SUBJECT DISCUSSION ACTION issues. Wally Rezentes, Jr., Director of Finance, had concerns with this proposal in that the Mayor and Mr. Rezentes have the responsibility to present a balanced budget to the County Council annually. The relative sections are 7.05 F, 19.03, 19.02 B and 19.02 A. 19.02 A states that the proposed annual budget ordinance, consisting of the operating and capital budgets for the ensuing fiscal year, shall be prepared by the director of finance and submitted by the mayor to the council, together with a budget message and any proposed revenue measure, on or before the fifteenth day of March of each year. If the fifteenth day of March falls on a Saturday and so on. Mr. Rezentes said his concern was if they do not include the Prosecuting Office's budget in our proposal we will not be able to provide the County Council with a balanced budget. Mr. Justus said this should be discussed as two separate agenda items. Mr. TenBruggencate said if they get on the ballot they probably ought, however, to end up as a single item since they refer to a single piece of the Charter. Chair Stack said his interpretation was to lump them together. Ms. Suzawa said it would be two separate items so it would be two separate ballot questions. Mr. Justus felt it important to separate the two issues because it might be easy for the public to be okay with the Prosecuting Attorney's Office having the legal standing to do what they already do but they may not be okay with the budget side or vice-versa. It is important for the voters to have the option to vote on either of these rather than lump them together Mr. Justus moved to bifurcate the Prosecuting in one thing. Attorney's proposal as two items. Ms. Suzawa seconded the motion. Ms. Suzawa asked Staff if it would not be two separate ballot questions since it was two separate subjects. Attorney Winn stated that would be the Charter Review Commission Open Session April 23, 2012 Page 19 SUBJECT DISCUSSION ACTION decision of the Commission. Ms. Suzawa asked if two separate questions could be asked on the ballot or one question that encompasses both since it is two separate subjects. Mr. Justus said in the past they did do that because they did that when the 4 year term for the Mayor was approved and included term limits in one Mr.TenBruggencate moved to leave them together ballot question. but to approve the initial language that expands the authority of the Prosecuting Attorney's as listed in italics under item 2 A, B, C, and D with no changes and delete entirely the budgetary section. Mr. TenBruggencate said he found the Director of Finance's argument compelling and the budgetary authority for both the income and the outgo Mr. Nishida seconded the motion. needs to be in the same hands. Mr. Justus withdrew his motion. Ms. Suzawa Mr. Justus pointed out there already was a motion with a second on the withdrew her second to the motion. floor. Mr.Justus moved to amend Mr.TenBruggencate's motion that the budgetary section be a separate item to be discussed. Attorney Winn reminded the Commissioner that he could not add another agenda item but he could discuss the issues however he wanted to but not as Mr. TenBruggencate withdrew his motion and a different agenda item. made a new motion specific to the powers and authority(A though D)with the budgetary portion to be taken up later. Mr. Justus seconded the motion. Motion carried 7:0 Chair Stack recapped the discussion to date regarding the powers and budget of the Prosecuting Attorney to which Mr. TenBruggencate made a motion that spoke to the powers and not the budgetary aspect. Mr. Nishida said more so it denied the second part but Mr. Justus wanted to make that Mr. Justus moved to make the budget proposal a decision separate. separate ballot item. Mr. TenBruggencate seconded the motion. Charter Review Commission Open Session April 23, 2012 Page 20 SUBJECT DISCUSSION ACTION Mr. Justus withdrew his motion. Ms. Suzawa moved to defer the budget proposal to the next meeting. Mr.Justus seconded the motion. Ms. Suzawa said she did not have enough information to put this proposal on the ballot. The Prosecuting Attorney's Office seems to think there is a need for this amendment but the Finance Director does not seem to agree and the Commission needs to be more informed before it can be put on the Roll Call Vote: Barela—Aye; Guy—Aye; Justus ballot. — Aye; Stack — Aye; Suzawa — Aye; TenBruggencate—Nay; Nishida—Nay) Motion to defer carried 5:2 CRC 2012-05 Memorandum dated 4/10/12 from the Prosecuting Attorney Office proposing charter amendments to Article VIII relating to the Office of the County Attorney Jake Delaplane noted that with the tight time constraints of the Commission, the Office of the Prosecuting Attorney asked this item be deferred to a later date for discussion as well as CRC 2012-06. Mr. Justus moved to defer CRC 2012-05. Mr. Guy seconded the motion. Motion carried 7:0 CRC 2012-06 Memorandum dated 4/10/12 from the prosecuting Attorney Office proposing charter amendments to Article XI relating to the Police Department Mr. TenBruggencate moved to defer CRC 2012- 06. Ms. Suzawa seconded the motion. Motion carried 7:0 Continuation of CRC 2012-002 Mel Rapozo distributed copies of his proposed language for §7.05 which he said was very simple, very straight forward and had put in the exceptions. The prop osal still needs to be drafted in Resolution form and go though 2 Charter Review Commission Open Session April 23, 2012 Page 21 SUBJECT DISCUSSION ACTION full County Council meetings for 2 readings in addition to a public hearing. Ms. Barela asked Mr. Rapozo how many departments this would affect in addition to Fire, Water, Police, Prosecutor, and Planning. Mr. Rapozo added Civil Service, Liquor, and Auditor. Asked what departments were left Mr. Rapozo said Public Works, Parks—the departments that are appointed directly by the Mayor. Mr. TenBruggencate expressed concern once again having not seen the legal juistification for the action that the Administration took whether this adequately addresses that question. This proposal does not respond at all to the direct supervisory authority over the department head and can envision a situation in which a legal opinion would be relying on other language such as the Police Department, the Civil Service and Planning Department sections of the Charter itself rather than on this section of the Charter. Mr. Rapozo did not disagree but said the big misconception when this started was what was left out and the first sentence of paragraph A except as otherwise provided had caused a lot of concern or misinterpretation. If you look at the Commission's Rules, the Chief's employment contract, there are other references that pertain to who is the supervising authority but that was completely omitted. This proposal clarifies that the direct supervision that the Mayor had stated publicly that he had as the Chief Executive Officer he would have in all of his administrative departments except those that are elected or governed by a board or commission. Mr. Rapozo did affirm that the County Council had seen the legal opinion from the County Attorney's Office. Mr. Rapozo said he inserted administrative departments into the proposal which clearly excluded legislative or elected departments. Mr. Rapozo again reiterated his thoughts on the timeline the Commission should be working with for submitting ballot items to the County Clerk. Charter Review Commission Open Session April 23, 2012 Page 22 SUBJECT DISCUSSION ACTION Chair Stack commented that he and the other Commissioners meet once a month and none of them are attorneys. The Charter Commission is a community service and the Commissioners are doing their level best. The Commission is trying not to address the needs of individual factions but what the Commission does here and in the future has to be within the context of the Charter in how the County chooses to govern itself. Ms. Suzawa questioned if part of the Legislative Branch only encompassed the Auditors. Mr. Rapozo said yes. Ms. Suzawa asked why not just use that word. Mr. Rapozo said it did include everyone in the Legislative Branch including the County Clerk, the Analyst and anyone within the Legislative Branch which would be the Office of Council Services, the Office of Elections and the County Auditor. Ms. Suzawa suggested saying the Legislative Branch and omitting part of which is confusing to the voter. Mr. Justus asked if it would be correct to assume that if they were to take this for a ballot question they could find out if it had legal potential by submitting it for a legal review to determine if it would work at all. Mr. Justus made the motion to approve the Attorney Winn said yes; that was the way their Rules worked. language as a proposed amendment for legal review. Ms. Suzawa seconded the motion. Mr. Guy said he would support moving the amendment forward. Mr. TenBruggencate said while he agrees with most of what was in the proposal it goes far beyond what they had been discussing and what the agenda item was. It extends this portion of the language into the Legislative Branch which is entirely appropriate but the Commission has not had time to think or talk about that and what the implications would be. It extends it in ways that may or may not be salutary. Mr. TenBruggencate said he would vote against it and did not think the Commission should proceed until they had a real clear view of where they were going and what the Charter Review Commission Open Session April 23, 2012 Page 23 SUBJECT DISCUSSION ACTION were trying to do. With all due respect to Mr. Rapozo, the Commission had seen this proposal for about 7 minutes and he would not be comfortable moving forward with a Charter change based on 7 minutes discussion. Mr. Justus understood the concern and asked if Mr. TenBruggencate would be more satisfied if they removed any reference to those that are elected or the Legislative Branch and just focused on governed by a Board or Commission since that was directly the issue they had been talking about. Mr. TenBruggencate said no and actually that was the best part. The Legislative part is the part that needs to be there. The other part of the Charter does not need to be changed. It might need to be changed based on the legal opinion we have not seen and not having seen that opinion do not Roll Call Vote: Barela—Nay; Guy—Aye; know that the Commission can proceed. The Legislative part is compelling. Justus—Aye; Stack—Nay; Suzawa—Aye; TenBruggencate—Nay;Nishida—Nay Motion defeated 3:4 Mr. TenBruggencate moved to formally request a copy of the legal opinion from the County Attorney's Office as relates to the Mayor's powers and authority. Mr. Justus seconded the motion. Motion carried 7:0 ES-2: Executive Session Minutes of March 19, 2012 Mr. TenBruggencate moved to approve the Executive Session Minutes without discussion. Mr. Justus seconded the motion. Motion carried 7:0 Announcements Next Meeting: Monday, May 21 at 4:00 pm. Ms. Barela announced she would be off island on May 21. Mr. Justus said he would also be off island on that date. Adjournment Mr. Guy moved to adjourn the meeting at 6:31 .m. Barela seconded the motion. Motion Charter Review Commission Open Session April 23, 2012 Page 24 SUBJECT DISCUSSION ACTION 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.