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HomeMy WebLinkAbout2013_0128_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 2/25/13 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I January 28, 2013 Location Mo'ikeha Building, Meeting Room 2A 2B Start of Meeting: 4:03 p.m. End of Meeting: 5:25 p.m. Present Chair Jan TenBruggencate; Vice-Chair Ed Justus. Members: Joel Guy; James Nishida, Patrick Stack; Carol Suzawa Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; Administrative Aide Teresa Tamura. Member of the Public Linda Estes. Excused Member: Mary Lou Barela Absent SUBJECT DISCUSSION ACTION Prior to the start of the meeting, County Clerk Ricky Watanabe gave the Oath of Office to Commission members Jan TenBruggencate and Joel Guy. Call To Order Chair TenBruggencate called the meeting to order at 4:03 pm with 6 Commissioners present. Ms. Suzawa moved to approve the agenda as presented. Mr. Justus seconded the motion. Motion carried 6:0 Approval of Open Session Minutes of November 26, 2012 Ms. Suzawa moved to approve the minutes as Minutes circulated. Mr. Justus seconded the motion. Motion carried 6:0 Communications CRC 2013-01 Communication dated 12/4/12 from Ricky Watanabe, County Clerk, to the Charter Review Commission regarding Certificate Of All Results, 2012 Charter Amendments. County of Kauai Mr. Justus moved to accept the communication. Mr. Stack seconded the motion. Motion carried 6:0 CRC 2013-02 Communication dated 12/4/12 from Ricky Watanabe, County Clerk, to Scott Nago, Chief Election Officer, regarding Certificate Of Results, 2012 Charter Amendments, County of Kauai Mr. Justus moved to accept the communication. Mr. Stack seconded the motion. Motion carried 6:0 Charter Review Commission Open Session January 28, 2013 Page 2 SUBJECT DISCUSSION ACTION Business CRC 2013-03 Proposed amendment creating a new Section 24.04, Kaua`i County Charter, relating to non-substantive corrections and revisions as they relate to grammar, spelling and formatting errors in the Charter and whether to consider budgeting for an outside editor Linda Estes—Ms. Estes stated she went through the Charter and changed all of the personal pronouns to reflect both men and women. The process only took 3 hours but Ms. Estes said on page 51 (Section 23.17)the Charter says When any personal pronoun appears in this charter, it shall be construed to mean either sex. Ms. Estes said all that needs to be done is have whoever put the Charter on the website go back through and change all the pronouns as this is enabling legislation so it should not be a big deal. Chair TenBruggencate said it is not quite that easy. That is legislation that says "he" does not have to be man but it does not say you can change the language of the Charter, which is a different issue. Attorney Winn agreed with Chair TenBruggencate. Mr. Stack referred to previous complaints from the public for the Commission's failure to degenderize the Charter. Mr. Stack agrees the language should be changed but the Commission cannot make the changes by itself It is a decision for the public to give the Commission the authority to make those changes, even though they are logical and should be rightfully changed, the Commission does not have that power. The Commission has to provide for it in a ballot question at the next election. Linda Estes—Ms. Estes stated she disagrees with the County Attorney. The Commission has the enabling legislation; what if it is put on the agenda(sic) and it does not pass. (Ms. Estes did correct the statement to reflect the ballot.) Charter Review Commission Open Session January 28, 2013 Page 3 SUBJECT DISCUSSION ACTION Mr. Justus said that line in the Charter does not create a mechanism that allows the Commission the ability to make those changes. The Charter states `it shall be construed to mean' which means that whoever is reading the Charter, it is construed to mean either sex. There is no legal wording authorizing the power to either the County Attorney or the Charter Commission to alter this document. Ms. Estes argued that it got into the Charter somehow and asked how it got in there. Mr. Justus said when that statement was placed in the Charter the framers of the Charter did not think to include a mechanism with which to make those changes. Ms. Estes said she used "he/she", "his/her" and for chairman she used "chair". Mr. Nishida agreed this was something that should be done but did not see a real importance of having it done so should the voters vote it down it is not such a big deal. Mr. Nishida said in a class he is taking now the young people do not see gender specific but rather see the word "he" as "he/she". Mr. Nishida said he was not arguing to not make the changes but it also is not that big a deal. Mr. Guy told Ms. Estes that he did appreciate her coming in but he is hesitant with piece-mealing. There are bigger discrepancies than just he/she and he would lean toward an editor-type system to go through and clarify all of the Charter. Ms. Estes further explained that she put `councilmember' where it said `councilman'. Ms. Estes said the editing is done and it has all been corrected if the Commission would like to turn the document over to the Attorneys. Mr. Justus also thanked Ms. Estes for her efforts. Chair TenBruggencate said the Commission will accept Ms. Estes document and it will continue to play a role in the development of a gender-neutral document that also will contain non-substantive amendments to the Charter that are required before it goes to the public. Chair TenBruggencate thanked Ms. Estes for her testimony and hard-work. Ms. Morikami said the legal analysts, Shiramizu Nakamura Loo, who were Charter Review Commission Open Session January 28, 2013 Page 4 SUBJECT DISCUSSION ACTION hired to assist with the ballot language on last year's Charter amendments are still on board and since there are no Charter amendments for this fiscal year perhaps the Charter Review Commission can utilize their services. These legal analysts could look at the language on the non-substantive changes and present those possible changes to the Commission. Mr. Guy said there are two issues. One is making the changes but the other is how do you pitch that to the voter so it is not 87 changes. Chair TenBruggencate said a whole series of non-substantive changes can be presented as a single document. Attorney Winn stated that there can be one ballot question because it is all interrelated but the actual document that shows the underlining(Ramseyer version) would still have to be part of the process. Ms. Morikami said she believed that is what the Big Island did when they made those changes to their Charter. Ms. Suzawa said that only took care of corrections up to current but asked how future corrections would be handled. Ms. Morikami said that was correct but it was the hope that the future amendments will be correct. Ms. Suzawa said she would prefer having a mechanism that is on-going in the Charter. Ms. Morikami said that is something this Commission can look at and while all the changes made to the Charter for the Big Island were done through one ballot question, she did not know if there was a mechanism to make future changes. Ms. Suzawa recalled the ballot question on the proposed amendment was copied from the Big Island. Ms. Davis noted that the Big Island's ballot question, which was taken off their website, is listed at the bottom of the proposed amendment. There was agreement that using the word non-substantive as part of the language may be putting the public off, but by specifying grammatical, spelling and formatting this might provide a better chance of moving this proposal forward. Mr. Nishida referred to using"he/she" and said he would like the legal Charter Review Commission Open Session January 28, 2013 Page 5 SUBJECT DISCUSSION ACTION analysts to address transgender as well. Ms. Morikami asked if the Commission wants the Office of Boards and Commissions to move forward with the legal consultant, give them guidelines on the non-substantive changes, and ask them to make a presentation to the Commission. It is understood from communications received from the County Attorney's Office and the County Clerk's Office that they do not have the manpower to do this task. Mr. Stack stated he was happy and surprised to hear of the legal consultants being engaged and asked when were they hired and at what cost. Ms. Morikami said they were hired April of this past year and it is based on the amount of time they spent on the issues related to the Charter Review Commission. They were also hired to look at revising the Rules and Procedures of various Boards and Commissions. They were not hired solely for the Charter Review Commission but their contract does include reviewing Charter amendments. Mr. Stack said this has been talked about many times in the past and there were suggestions from other Commissioners about hiring a law student, hiring a legal firm, or hiring a grammatical instructor from a university. Apparently the Office of Boards and Commissions has decided that the Commission is going to engage this particular party or parties and he does not remember discussing this with any of the other Commissioners. What is the County paying for this service? Ms. Morikami said the legal analysts' function is in assisting the Boards and Commissions Office and their main role, when they were hired, was to review the Charter amendments to make sure they were legal and they were understood. Mr. Stack said he has no problem with the legality but our political system calls upon citizen volunteers to utilize their best efforts. He thought the Boards and Commissions Office would recognize that this Commission, in particular, would be utilizing them and should have had a hand in the selection process. Ms. Morikami said she Charter Review Commission Open Session January 28, 2013 Page 6 SUBJECT DISCUSSION ACTION disagreed with that statement because the analysts are also reviewing Rules and Regulations of all 16 of the Boards and Commissions. It was the decision of the Office of Boards and Commissions after going through the competitive bid process for professional services. Ms. Morikami said this was being offered as an option but the Commission does not have to use the services of the legal analysts. Chair TenBruggencate said he understands that the Boards and Commissions Office went through a process and hired a law firm to review issues that come up with all the Boards and Commissions and there is sufficient budget left to commit some of those lawyers' time to the needs of this Commission. Chair TenBruggencate understands Mr. Stack's concern but thinks the Office is doing the Commission a favor. Mr. Stack said he did agree and did not want his comments to reflect any doubt about Boards and Commissions' wonderful selection process but as citizen volunteers the Commissioners may have given some insight into the process. That being said, Mr. Stack said he trusts Ms. Morikami's judgment and he trusts the judgment of the support staff for all of the Boards and Commissions and is happy with the things the Office does. The one issue is of authority and disclosure. Ms. Morikami said whatever recommendations are made, this Commission has the final say as the analysts will go through the Charter and make the non-substantive changes and the Commission can say yes or no. This would be a tool to help the Commission to deliberate and decide whether or not to make those changes. It is not subjective; it is going through the Charter and objectively making the corrections. Mr. Justus asked if part of the non-substantive changes is taking the current Charter and codifying it legally. Attorney Winn said that is a function of the County Clerk's Office and would not have anything to do with Boards Charter Review Commission Open Session January 28, 2013 Page 7 SUBJECT DISCUSSION ACTION and Commissions. Mr. Nishida asked why we would not use our County Attorney. Ms. Morikami said this Commission asked the County Clerk and the County Attorney's Office last year to see if they would be willing to make the changes and they both declined because of the work load involved. Mr. Stack recalled there was a third party who also declined to help out and that was the County Council. Ms. Morikami said the Clerk's Office is part of the County Council. Mr. Guy asked what this body of attorneys would be doing if they do not do this work. Ms. Morikami said they would start reviewing the Rules and Regulations for each Board and Commission to provide a more uniform approach rather than each Board and Commission having totally different rules. Ms. Morikami said the analysts are contracted as needed and get paid only when they are asked to do work for the Office. Chair TenBruggencate asked for a motion to refer this issue to the Boards and Commissions Office along with Linda Estes' exemplary work and to ask the legal analysts/attorneys to come back to the Commission's meeting next month and report on the kinds of changes they propose and any policy issues this Commission needs to address before any changes are made with respect to the kinds of amendments they will be looking at. Mr. Justus said this is a great idea to have a body of lawyers go through the Charter and present something that is up to date. Equally important is a subsection to provide a mechanism that allows the County Attorney or County Clerk or both parties to make those changes in the future. This could be done two-prong; one would present changes as up to date, with a second question that creates a mechanism for future changes. Charter Review Commission Open Session January 28, 2013 Page 8 SUBJECT DISCUSSION ACTION Mr. Nishida said he thought the ballot question addressed that question unless proposing an ordinance means only one ordinance and subsequent changes could not be made. Mr. Justus thought it was giving the ability to make those changes but the Council would be the body to check to make sure they are non-substantive changes. Chair TenBruggencate said they were talking about three different things. One proposal is to get the attorneys to make the changes that the Commission wants in the Charter and send to the voters, and may inappropriately be called non-substantive changes. In the alternative, the Big Island suggested letting the County Council do it. What Mr. Justus is talking about is putting something in the Charter that lets County Councils make future non-substantive changes that would not need to go to the voters;that is a substantive change. Mr. Guy thought it sounded like two different paths to the same ending. Chair TenBruggencate said Mr. Justus was saying that 10 years from now a County Council could say they want to make non-substantive changes to the Charter and they could with 5 votes. Mr. Guy said that same process would allow them to do it today and you would not have to go to the people; you just ask the people to allow this different process in changing non-substantive grammatical changes to the Charter. Once the people vote for that, they don't need to vote for the changes, only the way to get there. Once you create a way to get there, you give it to the Council and tell them the Attorneys have looked at the changes and ask for 5 votes to pass it. The Commission can set up a system that will allow it to be done up through current and even ten years from now. Mr. Justus understood this as the Commission can attack all the grammatical errors as one question. Mr. Guy said they just need to ask the people to let the Commission do it another way of making grammatical changes. If the process gets changed you can take the public out of this process. Mr. Justus said what is important is whatever is proposed;the Commission should propose both because one is a mechanism that takes Charter Review Commission Open Session January 28, 2013 Page 9 SUBJECT DISCUSSION ACTION away the public's power and the other just presents the changes that need to be made. Ballot question one: This is what needs to be corrected. Ballot question two: Do you want a mechanism that removes your power to approve other future non-substantive changes. The best thing for the public is for them to have the choice of whether they want to approve non- substantive changes in the future. The other question is of authority; do we want the authority in the public's hands or in the Council's hands? That is why it is important to look at it from two angles. Mr. Guy asked what if the public does not approve it; the Charter needs to be cleaned up. Mr. Justus said that is why it should be presented as two separate questions. One is all the things that have to be corrected and the other is about the power to change which is an entirely separate question. Chair TenBruggencate suggested that if a motion is forthcoming it should be bifurcated now. Mr. Justus moved that the Office of Boards and Commissions Office refer this proposed amendment,to include the work from Linda Estes, to the legal analysts and request they provide to the Commission a specific proposal of the changes to be made. Mr. Nishida seconded Ms. Suzawa asked if the Commission has to go through the Office of the motion. Boards and Commissions or can they go directly to the legal analysts. Chair TenBruggencate said the Commission did not hire the attorneys; the Office of Boards and Commissions is their boss. Ms. Morikami said rather than the legal analysts telling the Commission what they are going to do, it would be more appropriate that they get input on what it is the Commission wants them to do. The Commission needs to guide the attorneys on what needs to be done. Chair TenBruggencate said the motion is to get the attorneys in front of the Commission to talk about Charter Review Commission Open Session January 28, 2013 Page 10 SUBJECT DISCUSSION ACTION what is expected. Once the Commission has the proposed changes, it can be decided if the issue should go out to public meetings,just be placed on the ballot, or tossed out. Mr. Guy said the Commission needs to get clear on what is wanted and then find the way to get there. Mr. Guy said he would have formed the motion to say can the Commission direct the legal analysts to correct typographical, grammatical and other minor errors to the Charter. Mr. Stack said the most elemental task of the Commission is to make desirable and necessary changes but any of those changes must be approved by the public. Mr. Stack said to engage/hire a law firm to make the changes is creating a mechanism before the public has approved that we go in that direction. It is scary to act without the public's endorsement and think we know more than the public and then after we clean it up the way we like it, we force it on the public through a ballot question. Mr. Justus said he did not see it that way at all. The Commission is using the option of attorneys who happen to be there to have them do the legal footwork to make the corrections and give a draft of the changes for the Commission's review. The Commission has to have something to present to the public. Ms. Suzawa recalled a woman addressing the Commission about the changes that should be made and how careful we need to be in selecting the body to work on these changes. This is a great opportunity for this County to be able to afford this opportunity of using the type of people that are being involved with the changes because they understand our Charter. There was caution in that woman's testimony that if it is given to someone who does not know anything about this County but is just looking for grammatical changes and spelling, sometimes you run into problems. But if you give it to a body that understands this County's issues,that would be a great opportunity. Mr. Justus said he sees it as the analysts providing a rough draft and it is up to the Commission to look at it and make any changes that are important or take out things that are fishy. Ms. Suzawa does not think it is about taking out things; it is a matter of commas and correct spelling but not taking out groups of words. Mr. Charter Review Commission Open Session January 28, 2013 Page 11 SUBJECT DISCUSSION ACTION Justus said what he was referring to as fishy is where there is a comma in a place that might change the meaning. Mr. Guy agrees with using this resource while it is available but would like to see more direction rather than the attorneys telling us what they think we should do. Chair TenBruggencate said he hopes the Commission can give them that direction at the next meeting. Mr. Guy and Mr. Justus said they would hope to give that direction today but Chair TenBruggencate commented that the attorneys were not there. Motion carried 6:0 Chair TenBruggencate said the second half of the discussion deals with the issue of whether in the future the County Council makes these kinds of changes to the Charter. Mr. Justus said in rereading the Findings and Purposes of this proposed amendment, it allows the County Attorney or County Clerk to propose corrections; it does not say it allows the County Council to do that and asked if the Council already has that power. Attorney Winn said the Council does not have that power. As it is written, someone needs to take the changes to Council and they vote on those changes. Mr. Nishida said there is no limitation as to who can bring it; it is just a procedure with which you can make these changes to the Council, so the best one to do that would be the Charter Review Commission. The Council would hold a series of public hearings on those changes. Mr. Justus asked if the way the proposed amendment was written did it mean only the County Attorney or County Clerk had the ability to propose non- substantive changes to the Council. Attorney Winn said officially. Mr. Justus asked if that meant the Council could not propose non-substantive changes for them to vote to approve. Chair TenBruggencate said this has been taken from the language the Big Island used. The Chair said there is no language on the floor if someone wanted to propose such language. Mr. Justus wanted to know if it was possible or even wise to include the County Council having the power to propose non-substantive changes. Attorney Winn said it could be a positive, but sometimes quite a negative if Charter Review Commission Open Session January 28, 2013 Page 12 SUBJECT DISCUSSION ACTION the Council has the power to change this one here and that one there rather than saying either yes or no. It was agreed that the process could take a longer time and some people in the public might not want Council to have that ability. Mr. Nishida asked where this would fall within the Charter. Mr. Justus said it is proposed as a new section 24.04. Mr. Justus said he would also like to hear from the Commission on making the ordinance be approved by 7 (Council)votes instead of 5. If it is truly non-substantive there should not be any dissenting votes. Mr. Nishida said he would vote against it but it is a question for the people to decide. Mr. Guy moved to defer discussion of the Council's powers to the March agenda. Mr. Mr. Nishida made a request regarding a new ballot question but the sound Nishida seconded the motion. Motion carried was inaudible. 6:0 CRC 2013-04 Proposed amendment revising Section 24.03, Kaua'i County Charter, relating to establishing a permanent Charter Review Commission Mr. Guy moved to defer this amendment to November 2014. Mr. Justus seconded the Ms. Suzawa reminded the Commission this item would need to be on the motion 2014 ballot otherwise it would not be until 2016. Mr. Justus and Mr. Guy agreed this could be deferred until 2015 to be placed on the 2016 ballot. Mr. Justus moved to amend the motion to defer this item until 2015. (No second) Mr. Nishida said he would vote against the motion because if the item is being deferred that far out it should just be tabled. Mr. Stack asked where the logic in disbanding the Charter Review Commission is. Mr. Guy said the pressure is not there on this proposal and they should deal with other amendments for the 2014 ballot. Mr. Nishida voiced his point of view on why a Commission would be seated every 10 years to address the larger issues in the Charter versus putting smaller items on the ballot every two years. Mr. Nishida said he would like to know what it costs the County for the current sitting Commission. Motion failed: 2 (ayes: Guy, Justus):4 (nays: Nishida, Stack, Suzawa, TenBruggencate) Charter Review Commission Open Session January 28, 2013 Page 13 SUBJECT DISCUSSION ACTION Mr. Nishida moved to table the amendment. Ms. Suzawa seconded the motion. Motion carried 4:2 (nays: Guy, Justus) CRC 2013-05 Proposed amendment to Kaua'i County Charter §8.03 regarding the Qualifications for the County Attorney as provided for in Rule 4(b) of the Rules of the Kaua'i County Charter Review Mr. Justus said this proposal would provide more qualified people to choose from for a County Attorney by requiring a person to have practiced law in the State of Hawaii for at least 5 years as opposed to 3 years. Mr. Nishida asked Attorney Winn what is required to get a license to practice law. Attorney Winn said one has to take a test on the various sections of the law, a test on the Rules of Professional Ethics and one needs to be approved by the Bar. Mr. Nishida said this strikes him as a "locals" only qualification and asked how important is the experience of practicing law in the State of Hawaii for the County Attorney's job? This might be cutting out some good candidates. Attorney Winn said practicing Federal law is the same everywhere but every State has different laws and they could be quite different because the procedures of the courts could be quite different. How long it takes someone to get up to speed may be a matter of experience. Mr. Justus suggested they keep in mind this is only raising the requirement for the County Attorney, not for the junior officers. Mr. Nishida said you could have someone raised here, returns every year to see parents and is very qualified but does not have a license here. Attorney Winn said you cannot practice law in the State of Hawaii without a license. Ms. Suzawa said a mayor is required to have 3 years,the county council is required to have 2 years and to require 3 years for a county attorney seems fair and sufficient. It is hard to think that when you raise the bar, our Charter Review Commission Open Session January 28, 2013 Page 14 SUBJECT DISCUSSION ACTION Charter might exclude someone from being hired and would like to see the requirements remain at the same level as for other officers and keep it open so more people will qualify. Mr. Guy said he would be more concerned with the years of practicing in a relevant field such as if you had ten years in California in a municipal that is similar to Kaua'i rather than a divorce attorney for 5 years on O`ahu. Mr. Guy said he could understand the qualifications of an attorney increasing but the fact they have to be here for more years can eliminate some possible candidates that might be great people. Mr. Justus asked about removing the line that restricts practice to the State of Hawaii so it reads engaged in the practice of law for at least 5 years. Mr. Stack noted that we live in a unique place and as Attorney Winn pointed out the Hawaii Revised Statutes are much different than other states. He personally would like to see someone with a lot of experience. Mr. Stack would like to see this amendment be at least 7 or 10 years, not less. The pool of talent is not really the question because it is an appointed position. The real question is what is the experience, the ability and the foresight of this person? Three years is too little time. Mr. Stack would vote for 5 years as is but personally would like to have 7 or 10 years of experience. Chair TenBruggencate was asked to share his thoughts and he said this was a problem looking for a solution. His preference would be to let a mayor make that decision. We have not had the problem in the County of Kaua'i where we had an attorney with as few as 5 years practicing law in the State of Hawai'i in that job, so we do not know if this is a problem. Mr. Stack referred to the medical profession in contrast which requires a lot more than 3 years of experience in any state. You cannot underestimate or under appreciate experience and the more the better. Mr. Justus moved to accept this amendment. Charter Review Commission Open Session January 28, 2013 Page 15 SUBJECT DISCUSSION ACTION Mr. Stack seconded the motion. Roll call to accept the amendment failed 2 ayes:4 nays (nay- Guy; aye-Justus; nay-Nishida; aye-Stack; nay- Suzawa; nay-TenBruggencate) CRC 2013-06 Review and Approval of 2013 Meeting Schedule Mr. Justus suggested removing the December 23 date. Chair TenBruggencate requested changing the date to the week prior in case a meeting is needed in December A revised meeting schedule will be placed on the February agenda for approval. Announcements Next Meeting: Monday, February 25, 2013 at 4:00 p.m. Adjournment Mr. Justus moved to adjourn the meeting at 5:25 p.m. Ms. Suzawa seconded the motion. Motion carried 6:0 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Jan TenBruggencate, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.