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HomeMy WebLinkAbout2012_1126_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 1/28/13 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I November 26, 2012 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:03 p.m. End of Meeting: 4:58 p.m. Present Chair Patrick Stack; Vice-Chair Carol Suzawa. Members: Ed Justus; James Nishida; Jan TenBruggencate Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Paula Morikami Excused Member: Mary Lou Barela; Joel Guy Absent SUBJECT DISCUSSION ACTION Call To Order Chair Stack called the meeting to order at 4:03 p.m. with 5 Commissioners present Approval of Regular pen Session Minutes of October 22, 2012 Mr. TenBruggencate moved to approve the Minutes minutes as circulated. Mr. Justus seconded the motion. Motion carried 5:0 Business CRC 2012-13 Election of Chair and Vice-Chair for 2013 Ms. Suzawa nominated Jan TenBruggencate for Chair. Mr. Nishida seconded the motion. Motion carried 5:0 Mr. TenBruggencate nominated Ed Justus for Vice-Chair. Mr. Nishida seconded the motion. Motion carried 5:0 CRC 2012-14 Review and discussion of the final results of the 2012 Charter Amendments. Mr. Justus thought the reason that the Ballot Question(eliminating the one year wait period) for Section 23.02 was defeated by a large margin is because the public does not know that people who serve on boards and commissions are not paid. Most people probably assume that if someone works in the County, they get compensated. Mr. Nishida said he voted against the ballot question because he thought there should be more turnover within the boards and commissions. Mr. Stack suggested that Charter Review Commission Open Session November 26, 2012 Page 2 SUBJECT DISCUSSION ACTION maybe the Charter needs to be clearer by stating that commissioners are volunteers and are not paid entities. Ms. Suzawa asked if the Commission would be reintroducing this issue for the next election or just let it rest. Mr. Justus suggested they defer further discussion until early 2014. Mr. TenBruggencate said if this is a really important measure it will come up again. This Commission's job is to present something to the voters and the voters said `not that one'. There is not that big a pool of people willing and able to do the job and so you have to use the ones you have but it does make a good argument to force the County to broaden its view and bring more people through the process. If the Mayor comes to the Commission because there are no candidates willing to serve and asks for the issue to be put back on the ballot then it can be considered again. Mr. Justus said the Ballot Question (to eliminate the waiting period for the council's salary changes) for Section 29.05 was defeated because the public did not know this was just to clarify the Charter. Mr. Justus suggested reintroducing this issue but restating it. Attorney Winn stated that amendment was not a clarification. It changes the Charter because there is still a waiting period before the County Council receives salary changes. Ms. Davis told the Commission that there were 2 articles in the newspaper and that she had received calls from the public saying the Charter Commission had not done an adequate job of explaining the charter amendments. People still want to see a"pro" and a"con"but the thought has been that if the Commission puts something forth it was because they felt it was necessary or desirable so there is no reason to not vote for it and therefore there is no "con". The language needs to be carefully worked on over the next 2 years. Mr. TenBruggencate said he was heartened by the fact that the people assed the initiative and referendum issues because clearly that issue could Charter Review Commission Open Session November 26, 2012 Page 3 SUBJECT DISCUSSION ACTION have been confusing. Chair Stack said he had complaints from the public about the Commission's failure to `degenderize' the document. Chair Stack asked if it were possible to make non-substantive changes without going to the public for approval. Attorney Winn reminded the Commission this subject is not on the agenda and cannot be discussed. Mr. Justus moved to accept the communication showing the final vote results of the 2012 Charter Amendments. Mr. TenBruggencate seconded the motion. Motion carried 5:0 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) Mr. Justus stated he thought it was still a good idea to ask the other departments and agencies what they thought about creating this new Commission, even if the Commission decides to take on a broader range approach to discover how much power the mayor's office should or should not have. At the very least is this something the Commission wants to discuss. Seeking opinions from the County Attorney's Office, the Mayor's Office, and the County Council would give the Commission a good idea on what they think and may even provide an idea that is better. Attorney Winn said there are several legal issues in general that would need to be reworked. The overall concern is that any sort of commission would not necessarily be a client of the county attorney so a lot of subject matters could not be discussed with the commission. If the commission is looking into the behavior of the County Attorney, they might not have access to a lot of information that might help them make their determinations because of privilege. As a practical issue, Kaua'i is a small legal system. The ro osal states that four of the commission members have to be attorneys Charter Review Commission Open Session November 26, 2012 Page 4 SUBJECT DISCUSSION ACTION and it may be difficult to find attorneys who want to be on the commission because there might be a conflict with their cases. They would not be able to sue the County because they are part of the County. Section 33.05 C which is review the department's operations, as deemed necessary,for the purpose of recommending improvements to the County Attorney could pose another problem as again they might not have access to information due to privilege. Item E Hear complaints of citizens concerning the County Attorney, the citizens are not the County Attorney's clients so this item may need to be reworded. Attorney Winn said these were areas she would like to look into for the Commission and if the Commission believes this is a good idea she could put it into a format where it is practical and the attorneys are not violating their ethical rules. Chair Stack noted the next meeting is 60 days away and asked Attorney Winn if she could provide an opinion in January. Attorney Winn said she could bring up the issues. Mr. Justus asked if Attorney Winn could make some recommendations on what potentially could work since the Commission does not know what the legal structure would be to make something function. Attorney Winn said she would be happy to do a legal opinion but as to policy that would be Attorney Castillo's role more than her role. Mr. TenBruggencate said before they burden the Deputy County Attorney with the task of working on the minutia of this proposal the Commission should fold this into a larger discussion next year on the structure of County government, whether there should be a stronger mayor/weaker mayor system and whether some of the other department heads such as Planning, Police, Fire, Civil Service and the County Attorney should be commission appointed or mayor appointed. This Commission should look in a comprehensive way at that question before working on Charter language for just one piece of that. Charter Review Commission Open Session November 26, 2012 Page 5 SUBJECT DISCUSSION ACTION Mr. Justus said perhaps they could do both. If the Commission starts a discussion that addresses all of those things it would be helpful to have additional information to provide a good solid discussion. Mr. TenBruggencate said if they decide that a couple of the department heads should not be appointed by a commission but by the mayor and a couple of others should be commission appointed that are not now, like the County Attorney, the larger issue is making sure those different sections are comparably drafted. It would be putting the cart before the horse to develop language for just one piece of it. Mr. Justus said his understanding from the Deputy Attorney is the way the proposal is written now, the Commission cannot present this type of language to any of the departments to get their ideas since it is not known if it is even feasible. Mr. Justus said he would like to know if this system will work before further developing something the Commission thinks will work. Mr. TenBruggencate did not think it was the Deputy Attorney's job to tell the Commission it is not going to work. But he does assume if the Commission tells Attorney Winn to find a way to make it work she will give the Commission a way that it works. Attorney Winn said she can make it legal. Mr. Nishida thought the larger question would be with the commission's role, especially based on the public outcry with the Police Commission's role which clearly, according to the Charter, was not their role but the public saw it differently. The key question is what is the role of the commission, how do commissions function, and is that what is wanted? Mr. Justus asked Mr. TenBruggencate how he saw it structured if the Charter Review Commission Open Session November 26, 2012 Page 6 SUBJECT DISCUSSION ACTION Commission takes on the task in January. Mr. TenBruggencate said he would not take it on in January because there already is a long agenda and he would prefer to see it on the February agenda. Mr. TenBruggencate suggested holding a series of meetings and said it would behoove the Commission to make decisions early in 2013 about issues they want to talk about and then take those issues into the community to hear a"frothy" discussion of what the opinions are in the community. Out of that type of discussion the Commission would be more likely to come up with items for consideration. Mr. TenBruggencate proposed the Commission identify 3 or 4 major issues such as the structure of the leadership of the County, the districting issue, and making non-substantive changes in the Charter and take those items to the community for a series of meetings. Mr. TenBruggencate suggested they not go to the community with firm ideas of what the Commission wants to propose but rather with issues the Commission is discussing and ask for community input. These meetings could be scheduled sometime in the summer followed by a round-table discussion with the elected officials in an open public forum. Mr.TenBruggencate moved to fold the discussion of creating commission oversight of the county attorney into a discussion of the structure of the appointment of top level county management. Mr. Asked about topics of previous community meetings, Mr. TenBruggencate Justus seconded the motion. said those discussions were strongly and clearly"pro'keeping the mayor form of government rather than going to a county manager system. It did not speak to the powers of the mayor, districting for the county council and other issues the Commission might want to look at. Mr. TenBruggencate restated that his motion is to fold this item into a subset of a larger discussion of the strong mayor/weak mayor forms of county government and which department heads should be commission appointed and which should be mayor appointed and what other options there mi ht available. Motion carried 5:0 Charter Review Commission Open Session November 26, 2012 Page 7 SUBJECT DISCUSSION ACTION 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 Mr. TenBruggencate said based on the earlier discussion this is a discussion that also should be held to get community input. If there is to be a districting measure placed on the ballot it should be a single districting item for clarity and therefore the Commission needs to decide what that system should be. Mr. TenBruggencate suggested the Commission defer this issue to the February meeting in preparation for taking it into the community sometime in the summer. Mr. Justus said the Commission only needs one meeting to figure what their focus is going to be and he felt this issue could go to the community before the summer. Mr. TenBruggencate said if this is moved to February for discussion, the Commission can invite the County Council to a meeting in March to provide their input with public meetings to come thereafter. While Mr. Justus did not think it mattered if the Councilmembers disagreed with the issue of districting, Mr. TenBruggencate said elected county representatives have not only a vested interest but one would hope the pulse of the community; they should have thoughts on the issue that might help the Commission make a decision between the options. Mr. Justus said he did Charter Review Commission Open Session November 26, 2012 Page 8 SUBJECT DISCUSSION ACTION agree with Mr. TenBruggencate's formula. Mr.TenBruggencate moved to defer discussion on Districting to the February meeting. Mr. Justus seconded the motion. Motion carried 5:0 Mr. Justus asked if he could add a sub-agenda item to the Districting proposal for the February agenda. Attorney Winn said yes if it related to the item and Staff asked Mr. Justus to submit his proposal early to make the agenda 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 Mr. Justus thought Sections 8.02 and 8.03 should be folded into the larger discussion to include the county attorney oversight; the concept of mediation is something the Commission needs to further discuss. Mr. TenBruggencate said he hated to disagree with Mr. Justus but he did not think a long discussion was needed because it made sense to him. Mr. TenBruggencate said he did have two questions of Mr. Justus as the author of the proposal. In §8.02, what does a"full approval vote"mean? Mr. Justus said he was not sure what term means the entire 7 members; would that be super majority or unanimous? Mr. Justus thought it important that the county council have some type of power just like the mayor does. Ms. Morikami advised Mr. Justus that super majority and unanimous are two different things. Mr. Justus said he meant the term to be unanimous. Mr. TenBruggencate addressed his second question to Chair Stack because of the Chair's extensive experience with mediation and asked if it would be preferable to change the term"shall"to "may" so the county attorney has the option, if they feel it is in the County's best interest, to mediate but would not necessarily have to mediate. Charter Review Commission Open Session November 26, 2012 Page 9 SUBJECT DISCUSSION ACTION Attorney Winn said it is difficult to make comments without exact language. Attorney Winn said she was not sure if this section on Mediation was actually Charter material in that it does not create the structure of government; it is talking about how to do a lawsuit. Secondly this is an area that would fall under general law. The State Legislature and particularly the Judiciary have the power to run these things and there can't be a charter provision that would conflict with general law. Attorney Winn said she has reservations about such an amendment to the Charter. Creating an office of a mediator is definitely a structural type of thing this body can propose but they cannot require people to mediate. The Judiciary can require mediation but not the Charter Commission. Also, if the mediator is a county employee the other side would be using the people they are suing to mediate,which would not be practical. Mr. TenBruggencate asked if was superfluous in that the county attorney currently has the authority to choose to engage in mediation. Attorney Winn answered yes. Mr. TenBruggencate noted the proposal only mandated mediation. Mr. Justus said that was right but the Attorney said the Commission does not have the authority to do that. Chair Stack pointed out that the Kaua'i Supreme Court of the Hawai'i Judiciary broadly supports mediation. Attorney Winn did not disagree. Chair Stack also pointed out whereas mediations are an interdependent process, the judge can order parties in dispute to mediate. The judge cannot decide what happens there but he/she can send them to mediation. Attorney Winn stated she was not saying mediation was bad and the judge does have those powers. Chair Stack understood Attorney Winn was saying this issue was outside the scope of this Commission to restructure. Attorney Winn said this body can restructure the government but the Commission cannot tell someone how to run a lawsuit. Chair Stack said mediation is not a lawsuit; it is a voluntary conversation between disputes. If mediation fails the next logical step is a lawsuit. Attorney Winn said you cannot require Charter Review Commission Open Session November 26, 2012 Page 10 SUBJECT DISCUSSION ACTION someone to do mediation first; you cannot take away their ability to go straight to a lawsuit. Chair Stack said that a judge can and Attorney Winn responded correct. Mr. Justus said the County Attorney brought up an interesting idea with the Office of Mediator and asked if the Commission could create such an office to do that function. Attorney Winn said this body can create the structure of government such as when the Department of Parks and Recreation was placed on the ballot and a new department was created. While the Office of Mediator can be created through the Charter you cannot require people to use that office and opposing counsel will not want to use the County to mediate when they are suing the County. Mr. TenBruggencate said the Appointment and Removal section seems confusing. Currently the mayor, we use the term appoint which is not an accurate term, nominates and the county council confirms the appointment of the county attorney. Section 8.02 the language suggests that the mayor may appoint with a 2/3's vote or 5 votes of the 7 council members or the council may appoint. Mr. TenBruggencate asked who is the appointing authority? Mr. Justus said the council can appoint but they need the approval of the mayor as well; it is the same situation. Since the county attorney serves the entire County and not just one department in the executive branch,both of the main active branches of the County government should be able to equally participate in whoever they would like to select. Scenarios were discussed where there could be a loggerhead with no one being appointed to the position for months. Mr. TenBruggencate said he would argue for making it simpler. Mr. Justus said his idea for an attorney commission is there would not be a log jam effect because the people on the commission who make the appointment would not be subject to the same political ambitions you would find between the mayor and the council. The whole idea is it would be an independent body Charter Review Commission Open Session November 26, 2012 Page 11 SUBJECT DISCUSSION ACTION that is equally appointed by both sides but not directly involved. Mr. Justus said after hearing the Commission's concerns he proposed the attorney commission idea. The issue (with the county attorney) comes up enough that it needs to be addressed and fixed somehow. Mr. Justus said it would be great if both branches of government would feel satisfied with the person or persons who issue their legal opinions because whatever the County Attorney's Office says is what the County has to go by. Attorney Winn explained that the County Attorney's Office is not the decision makers but rather the Office that gives advice. Mr. TenBruggencate said he did not think the mediation discussion was ready for prime time and clearly the appointment and removal section folds into the other discussions. Mr. TenBruggencate said he did like Section 8.03, the recommendation to increase the requirement that an attorney being considered to be the county attorney should have five years experience practicing in the State of Hawai'i and recommends it go forward as a proposal for a Charter amendment. Mr. TenBruggencate moved that Section 8.03, which would increase the required experience for the County Attorney from three to five years practicing in the State of Hawai'i, move forward as a proposed Charter amendment. Mr. Nishida seconded the motion. Mr. Justus said he has heard from the public and people within the County that maybe there should be a stipulation on what kind of law the county attorney practices and should that stipulation be included? Chair Stack thought that was placing unnecessary constraints on the selection of the county attorney but he would agree in principle that the county attorney should have a certain background. Mr. TenBruggencate added it was a good point, but the most important function of the county attorney is to run a major department of the County and managerial skills might be more Charter Review Commission Open Session November 26, 2012 Page 12 SUBJECT DISCUSSION ACTION important than legal skills. You could have a tax lawyer who can run a department like nobody and you could have an excellent trial attorney who cannot get along with anyone. There tends to be a small pool of attorneys to work with and you have to pick the best person you have. Should it be a corporate or government attorney as opposed to the standard civil or Motion carried 5:0 criminal attorney? Mr. Justus moved to include Section 8.02 in the community discussions. Mr. Nishida seconded the motion. Motion carried 5:0 Announcements Next Meeting: Mon day, January 28, 2013 at 4:00 pm Adjournment Chair Stack adjourned the meeting at 4:58 p.m. Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Patrick Stack, Chair O Approved as is. ( ) Approved with amendments. See minutes of meeting.