HomeMy WebLinkAbout2013_0225_ Minutes Open_APPROVED COUNTY OF KAUAI
Minutes of Meeting
OPEN SESSION
Approved as circulated 3/25/13
Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I February 25, 2013
Location Mo'ikeha Building, Meeting Room 2A 2B Start of Meeting: 4:01 p.m. End of Meeting: 5: 56 p.m.
Present Chair Jan TenBruggencate; Vice-Chair Ed Justus. Members: Mary Lou Barela, Joel Guy; James Nishida, Patrick Stack (4: 15 p.m.);
Carol Suzawa
Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator
Paula Morikami; Administrative Aide Teresa Tamura and Curtis Shiramizu of Shiramizu Nakamura Loo, Attorneys at Law
Excused
Absent
SUBJECT DISCUSSION ACTION
Call To Order Chair TenBruggencate called the meeting to
order at 4:01 pm with 6 Commissioners present
Approval of Regular Open Session Minutes of January 28, 2013 Ms. Barela moved to approve the minutes as
Minutes circulated. Mr. Justus seconded the motion.
Motion carried 6:0
With no changes to the agenda, Chair
TenBruggencate stated the agenda is approved as
circulated.
Business CRC 2013-07 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 11/26/12)
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
This item was taken out of order pending arrival of Mr. Shiramizu to
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discuss CRC 2013-03
Mr. Justus said the sub-committee presented its report on Districting several
months ago but the committee's decision was to bring back multiple ideas
to the Commission to decide what direction to pursue as a body. One
option presented was 4 district seats, North, South, East, and West with 3
at-large seats. The other proposal was to have 7 districts all voted at-large
similar to how Maui County does their Council elections. Another
suggestion was creating neighborhood boards to get more actual input from
the citizens regarding their needs and concerns and address those at a more
local level. It was unsure if this would be creating a separate government
entity under the County or if it would be boards that would report to either
the County Council or the Mayor's Office. Another idea was simply to find
a way to get more public interaction with the Councilmembers by creating a
regional committee where every Councilmember would be required to go
out once a month to each of the communities, take public input and bring
those items of concern to the regional committee. The regional committee
would have to take action on those concerns and it would be a charter
mandate to require the County Councilmembers to engage the public that
voted them in. The committee is still at the point of deciding which
direction to go with districting.
Mr. Nishida said in general he did not think it was a good idea to go with
districting but as part of the committee, a discussion was held on how to
make it work. That was how the alternative methods came into the
discussion because people feel they are not represented. But districting may
not allow for that representation because now there is one person instead of
seven.
Mr. Guy encouraged the Commission to look broader at districting because
as someone from the outer edge of the island, he sees it differently.
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Currently,there is great representation with Chair Furfaro living in that area
but his term will be ending. The challenge becomes seven or none, so Mr.
Guy would encourage the Commission to look at ways to broaden the reach
within the communities to see if there is interest in districting because
interest is all he gets in his community. Mr. Guy favors proposal two and
said there has been districting in the past but he did not think it had ever
been seven districts but rather a piece of at-large and then partial districting.
Ms. Barela asked if the Commission was making a problem out of
something that is not a problem. Chair TenBruggencate said this discussion
has come up repeatedly in Charter Commissions or before the County
Council and it would be nice to figure out a process to grapple with the
issue. This is a question for the island and not necessarily a question for
this Commission because it has been turned down in the past. Chair
TenBruggencate said the Commission needs to find a way to see if there is
public clamor for a type of districting that hasn't been tried yet, such as the
seven districts. Chair TenBruggencate said he would be interested in
hearing how to do that because the issue does not seem to have the votes
right now. Perhaps a discussion with good arguments so people who are
not supportive of the concept now could be convinced there is a way that
improves where we currently are. The underrepresentation at various times
in the distant portions of our community is a valid concern.
Ms. Suzawa agreed it probably should be taken out for a public hearing but
taking this many options out would be really confusing. One thing that
should be straightened out before this goes out to the public is the actual
districts because if it is other than the State districts where do you go to
vote? How is the current districting created; is it by population?
Districting must be in place before it goes before the public and the districts
need to be equal whether by voters or the number of people. There are 3
State districts so there must be a formula that is fair and equitable.
Mr. Stack entered the meeting at 4:15 p.m.
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Mr. Justus said Maui has a different style of district system as compared to
the other islands. They have separate districts that are not population
oriented such as Moloka`i and Lanai. Mr. Justus thought there must be a
legal mechanism to separate districts so that it is not completely population
based. Mr. Justus further explained that the 7 districts would be at-large
and not restricted to people living in a district voting for the representative
from that district. Mr. Justus said there has been animosity experienced with
districting in Maui County where people elected in a district did not receive
the popular vote of the people in that district. District representation at-
large may not guarantee you get someone from that district that the people
in that district feel represent them.
Mr. Nishida said his support for the at-large voting is because this island's
population is too small to support districting. The little districts will always
feel they don't get total representation and because the County Council
spends the taxpayer's money, Mr. Nishida said he wants to vote for
whoever is sitting on that Council. Mr. Nishida pointed out that in a class
he took one of the papers he read said that when only one person runs for a
district it tends to be a man that gets elected. But when voting for 7 people,
there is a better chance for women to be elected. With districting, the
responsibility is to the people in that district, which can lead to pork barrel
politics. Mr. Nishida said he spoke with Peter Nakamura and there are rules
for how districts can be set up.
Attorney Winn said she has not been told to look at these issues and the first
question the Commission has is to decide whether or not they believe
districting is important and or necessary. Mr. Nishida said they should have
someone look at the election rules. Attorney Winn said those rules are State
but with a home Charter, the Commission could decide how to set the
districting up. The Commission could follow the State rules but they do not
have to.
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Mr. Justus said if they go to separate districts it would not necessarily have
to be equal population; it could be because of the type of geographic
importance of a certain area or the uniqueness of it. Mr. Nishida and Mr.
Guy suggested getting population numbers for different parts of the island
along with numbers on revenue sources for each area. Mr. Guy said
revenue from land value and land taxes along Hanalei Bay and Kaupea are
huge sources of income for the County. The North Shore also highly
markets the Na Pali Coast and Ha'ena as a tourist destination yet they come
out a little bit shy on representation. Mr. Justus said districting by
population could be done where the districts would be pretty close and
those people would watch out for their districts while the at-large
councilmembers would watch out for the entire island. Mr. Justus
suggested this could help limit pork barreling.
Chair TenBruggencate said this is a complicated discussion but what would
be useful is if the Commissioners would start to think about a proposal that
can be put in the form of a motion. Continued discussion of the different
types of districting does not move this issue forward; we need a specific
proposal or a means to move the discussion forward.
Mr. Stack agreed this issue was necessary and desirable to the Charter and it
should be considered through a motion. Mr. Stack moved to bring this matter to a vote,
whether to go forward with districting or table
the issue. Mr. Nishida seconded the motion.
Chair TenBruggencate asked for clarification on the motion. Mr. Stack
said this was not to bring the specifics to a vote but rather decide whether
this is something to further explore. When asked if this item should just be
moved on to next month's agenda for further discussion, Mr. Stack said
with the understanding it would be brought to a motion for vote. The
Commission would be remiss if this turned into an on-going debate that
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never reaches a vote. Mr. Nishida agreed but for different reasons. Mr.
Justus asked for clarification on deciding a method of choice and if that
meant choosing between the seven districts at-large or the four
districts/three at-large. Chair TenBruggencate said his question is what the
Commission wants to do next because he is not getting a clear sense that
they will be any further along next month than they are right now.
Mr. Justus said the various Commissioners have requested more
information with population numbers and County revenue numbers from
the different areas and asked if the Commission could request that
information.
Attorney Winn said however they decide to split up the island it cannot be
arbitrary and capricious so there would have to be a rational basis for
looking at income versus looking at population.
Ms. Barela said she thought they were putting the cart before the horse
again as this comes up every couple of years and it would be helpful to
know if there is public interest in districting. Mr. Justus stated that each
time this comes to the ballot there seem to be more and more people voting
in favor of the idea of districting even though he has voted against
districting in the past simply because of how completely different regions
were lumped together. Mr. Justus said his observation is there seems to be
an interest in districting and they will find out how much of an interest there
is when this goes out to the public.
Chair TenBruggencate restated the motion on the floor and asked that it be
deferred to the next month when Commission members have more clarity
about what they want to do and are prepared to make a motion on what kind
of districting should or should not move forward. Chair Stack said this is a
two step process and they need to decide if they are for the concept and if
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that is agreed upon the details can be hashed out. Chair Stack also
suggested taking a vote next month as to whether conceptually the
Commission wants districting or not but he would rather take a vote on it
today. If the Commission agrees to districting,then it would be tasked with
working on the details. Chair Stack said his motion simply was do they
want districting or non-districting and if the vote is in favor of districting
then figure out the details the next month.
Mr. Stack said the purpose of his motion was to move districting to the fast
track or get rid of it. Mr. Stack amended his motion to redistrict as a
Charter amendment. Mr. Nishida seconded the
motion.
Mr. Nishida agreed to put districting to a vote but he will vote no because
he does not agree with districting without knowing the details. Mr. Guy
said he is hopeful districting will be moved forward to the ballot. Roll Call Vote: Barela-nay; Guy-aye; Justus-
aye; Nishida-nay; Stack-aye; Suzawa-nay;
TenBruggencate-aye. Motion carried 4:3
Chair TenBruggencate stated districting would be on the March agenda and
asked that a specific proposal be brought at that time which will provide
clarity for discussion. Ms. Suzawa said the proposals were last year's work
and if that is not put into consideration, does each Commission member
recreate their own idea or just what the committee looked at? Chair
TenBruggencate said all he was asking was that the members of the Charter
Commission be prepared next month for discussion to arrive at a proposal
that can be voted up or down on whether to proceed with districting or not.
Chair TenBruggencate said although someone may have voted no on the
concept there may be a preferred proposal that can be presented to the
public.
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
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whether to consider budgeting for an outside editor(On-going)
a. Discussion with legal analysts Shiramizu Nakamura Loo on procedures
for identifying and proposing non-substantive corrections and revisions to
the Charter
Chair TenBruggencate introduced Curtis Shiramizu, the Boards &
Commissions' legal analyst, who was asked to assist the Commission with
this task.
Mr. Shiramizu said he was asked to look at housekeeping changes to the
Charter and he did receive the copy of hand-written gender changes by
Linda Estes. Mr. Shiramizu said he was also looking at other non-
substantive changes that could be made to the Charter including grammar
and spelling. Mr. Shiramizu also thought about references to Hawaii
Revised Statutes, if any, and some of the provisions specifically that may or
may not be appropriate in the Charter. Working from the 2010 updated
version of the Charter and doing a word search in the Hawaii Revised
Statutes, Mr. Shiramizu found 2 references in the Charter, Section 11.07
Police Department Appeals which makes reference to Chapters 76 and 89 of
the H.R.S. The other is Section 19.07 A Financial Procedures, which
references Chapter 92 Administrative Procedures Act, of the H.R.S. There
were 3 references in the Charter to Revised Laws of Hawaii 1955; one in
Section 17.03 C Powers and Duties of the Department of Water and refers
to Chapter 145-A and the other reference is Article 21 Special Assessment
Improvements and refers to Sections 146-130 to 146-171.
Chair TenBruggencate asked if those references are still active links. Mr.
Shiramizu said he has not yet checked on the links. Chair TenBruggencate
asked if Mr. Shiramizu would be able to make a recommendation based on
what the current statute terminology is for the appropriate links. Mr.
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Shiramizu said he could do that if that is what the Commission wants. Mr.
Justus asked where it cites specific statutes or the Revised Laws of Hawaii
would it be simpler to say in accordance to State law as opposed to citing
the individual sections and would that change the meaning?
Attorney Winn said the problem with saying State law is it is too vague and
consists of many volumes. Mr. Justus asked if they say Hawaii Revised
Statutes would they have to cite the specific ordinance. Attorney Winn said
yes because the Statute has specific language whereas State law, there are
so many possibilities; how would someone know which section would
apply? It might be possible if it is narrowed further but it is too vague to
just say State law. Mr. Justus said he was concerned with the need to
change the Charter every time the State makes a change to the Hawaii
Revised Statutes. Mr. Shiramizu said they might say "in accordance with
H.R.S., Section 217.2, as amended" so every time it is amended it would be
automatic but that might not cover all the changes that might occur in State
law. Attorney Winn said the other problem is that the State may change it
in a way the County does not want it in the Charter. Attorney Winn said
anytime you use a document to refer to another document, you face the
possibility of it changing the meaning of the original document unless you
put in the language itself so that language would always be the same.
Attorney Winn thought that inserting the actual language versus citing the
H.R.S. section would be considered a substantive change.
Mr. Shiramizu did not know if there were any updates to the Revised Laws
of Hawai'i 1955 and what is currently there. There would have to be
identical language from the old version to the current version to be sure if it
was replaced with the H.R.S. cite it would not change the meaning found in
the Charter. Attorney Winn said it would be more beneficial to know the
sections that are referred to rather than in the generalities they are now
discussing. The Chair said because there were so few references in the
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Charter, Mr. Shiramizu should bring those back to the Commission at a
later time. Chair TenBruggencate noted that the Department of Water
reference refers to something that predates the State of Hawai'i which
should be looked at and asked Mr. Shiramizu to come back to the
Commission with his thoughts on this one.
Mr. Shiramizu said there are a couple of specific articles that need to be
looked at as to whether it should remain in the Charter or be taken out. One
is the Electric Power Authority and the way it is drafted it does not come
into play unless the Council decides to pass an ordinance. This particular
article gives the County the option to take over KIUC if that is ever
necessary. Attorney Winn said that is more than a substantive change and
would need to be a separate agenda item for consideration.
Mr. Justus said gender neutral was brought up before and he or she may not
necessarily cover all of the types of gender if you consider transgender or
asexual persons. Is there a word or term that can be used that would cover
the gamut? Mr. Shiramizu did not know. Ms. Barela said even if a person
is transgender they are still a he or a she. Mr. Justus agreed but said not
with asexual people. Ms. Suzawa suggested the term could be person or
member. Mr. Shiramizu said there are still a lot of singular references in
the Charter. Chair TenBruggencate commented that this is a substantial
potential issue because if the Commission changes their mind the whole
Charter will need to be rewritten. Chair TenBruggencate said they need to
hear from Mr. Shiramizu on what he thinks the options are on what to use to
refer to individuals and whether to be gender neutral or gender fair or have
no gender relation whatsoever. Mr. Shiramizu said he has not thought
about the alternatives. Ms. Barela liked the term "human beings"used by
Chair TenBruggencate. Ms. Barela said she has sat on a lot of national
boards who deal with the LGBT population who still use he/she in written
form. Ms. Suzawa said current amendments refer to councilmember but
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older sections that have not been amended use councilman. Ms. Barela
asked Mr. Justus if anyone has brought it to his attention that they would
prefer usage of certain words. Mr. Justus said the term he has heard is
person as opposed to he or she and would be an ideal neutral term. Mr.
Justus asked Attorney Winn if that would be a non-substantive term.
Attorney Winn said it could depend on how it is used but, generally, no it
would not be a substantive change in most sections but she would have to
look at the exact language to see if it does make a difference because person
could mean other things as well. Ms. Suzawa asked if during the review
Mr. Shiramizu noticed if member was used more than person because they
should be consistent. Mr. Shiramizu agreed that member appeared more
than person. Chair TenBruggencate said member is not always appropriate
because if you are talking about candidates for public office they are only
persons until they become members.
Mr. Shiramizu said Section 23.17 states that when any personal pronoun
appears in the Charter, it shall be construed to mean either sex and asked if
that sentence could address Mr. Justus' concerns. Mr. Justus asked if it
would be a non-substantive change if they changed construed to mean
either sex to say shall be construed to mean any person. Attorney Winn
said it could mean a corporation (overtalking and Attorney Winn could not
be heard)
Mr. Shiramizu said it is probably a substantive change for Article 9, Public
Defender, and asked if it is appropriate in the Charter since there is a state
statute that created the State Office of Public Defender and would that
preempt the Charter provision. Attorney Winn did not think it was
preempted; the way it is written is that if Council puts forth an ordinance
there could be a Public Defender position within the County. Chair
TenBruggencate felt they would not mess with that Article. Mr. Shiramizu
said only Hawaii County has a version that makes the creation of a Public
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Defenders Office mandatory if no other private or public agency performs
this function.
Mr. Guy said there is a blanket generalization of whether to use he, she, or
person but the discussion will be on those words flagged by Mr. Shiramizu.
It will need to be looked at in its specific context. Attorney Winn said they
need to look at something written and then if they do not like a word or it is
legally iffy it can be discussed instead of having a generalized discussion.
Chair TenBruggencate said whatever Mr. Shiramizu suggests will
eventually have to go through the County Attorney for review.
Ms. Morikami suggested they start with the 2012 Codified version of the
Charter with all the changes shown on another copy of that Charter,
including punctuation. Ms. Davis said that version (Ramseyer) of the
Charter has to be available for the public to review so they should go
through the whole Charter now so it is done right. Mr. Stack moved that he/she or him/her be the
default term where appropriate. Ms. Barela
seconded the motion.
Mr. Justus said "person" is far more forward thinking than he or she. Mr.
Justus explained his knowledge and friendship with
gay/lesbian/transgender/asexual associations and person is a preferred word.
He or she is a limiting perspective. Motion failed 1 aye (Stack): 6 nay
Mr. Guy moved to use the term person wherever
it is gender specific. Motion amended to include
the term member as appropriate. Mr. Justus
seconded the motion.
Ms. Suzawa said where the reference is already councilmember it should
not be changed to councilperson to remain consistent. Mr. Guy asked if the
motion could be amended to say where it is referencing a specific sex use
the word person and when it is referencing Attorney Winn stated
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there is one amendment on the floor and asked if this was an amendment to
the amendment and suggested they deal with the first amendment and then
consider amending the main motion. Mr. Guy said he is just trying to give
better direction and when it is speaking about a board or commission use
member and when it is speaking of gender use person. Chair
TenBruggencate pointed out in the Article for the Prosecuting Attorney
Office where they refer to the prosecutor's responsibility to prosecute those
persons charged and also refer to the prosecutor as person confuses whether
you are talking about the person charged or the person prosecuting. It
might make more sense, where necessary, instead of using the pronoun to
use the noun. Chair TenBruggencate asked the Commission to be clear on
what it is asking for. Mr. Justus said that was a very valid point and asked
the County Attorney if they change person to say prosecuting attorney
would that be a non-substantive change. Attorney Winn replied most likely. Motion on amendment to include the term
member carried 7:0
Mr. Justus moved to amend the main motion to
include in those areas where person can be
replaced with the noun of the office or officer
intended. Mr. Nishida seconded the motion.
Motion on second amendment carried 7:0
Chair TenBruggencate said the main motion as amended would be to use
person or member when appropriate and in situations where it might be
confusing use the noun instead of the pronoun. Attorney Winn corrected
the statement to include except when you can refer to an officer use officer. Motion on the main motion as amended to use
the term person or member when appropriate
and when it might be confusing use the noun of
the office or officer instead of the pronoun
carried 7:0
Mr. Justus asked about clarifying the HLS (sic) and HRS and what they
refer to. Chair TenBruggencate and Mr. Shiramizu agreed that would be
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part of what is brought back to the Commission.
Mr. Nishida said what will be proposed on the Charter will be an
authorization to the County Council to make non-substantive changes to the
Charter. Attorney Winn said that decision has not been made yet. Chair
TenBruggencate said all they are talking about now is cleaning up grammar
and gender. Mr. Justus said they have never made a motion to separate
handling current changes and future changes. Attorney Winn said they
have not voted on the current issue of non-substantive changes because they
have not seen any of the proposed changes. The Commission can still talk
about making future changes and move to send that proposal forward or
vote to say they do not want someone making changes in the future without
a Charter amendment.
Mr. Justus said he would like to see a change made to the proposed
amendment for 24.04 to include that any future amendments would be
placed in their corresponding sections within the Charter once they are
approved by the public. Attorney Winn said the official Charter does have
all the amendments attached and the County Clerk is responsible for
incorporating them but it just hasn't been done, however, there is no need to
have a Charter amendment to say that the amendments should go in the
Charter. Chair TenBruggencate verified to Ms. Suzawa that Mr.
Shiramizu's office would be handling the formatting as well as
underscoring and misspelled words as that falls within the broad category of
grammatical corrections. Mr. Justus asked if the County Clerk is required to
insert the approved amendments into the appropriate section of the official
Charter or just at their convenience and when it is done does it have to be
approved by the public? Mr. Justus stated he was speaking of the official
Charter as compared with the codified version, which states it is the
unofficial version of the Charter. Attorney Winn said the County Clerk is
the elections officer for the County and has all the official documents and
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he would be the one to prepare the official Charter and insert the language
into it.
Chair TenBruggencate asked if the proposed amendment had been voted on
by this Commission that would allow the County Council to do non-
substantive changes on an on-going basis. The response was no. The Commissioners thanked Mr. Shiramizu who
exited the meeting at this time.
Mr. Nishida moved to approve the new section
24.04 as a Charter amendment in the next
election. Ms. Suzawa seconded the motion.
Mr. Justus asked if this is approved as an amendment does that mean it goes
to the County Attorney's Office for review and upon return the Commission
can make further changes. Attorney Winn said the current motion would
mean as is so if nothing else is done the Attorney will review it as currently
stated and the Commission will have further chance to review it after that.
Also the Commission can amend the language.
Ms. Suzawa asked for verification that communication was sent to the
County Attorney and the County Clerk's Offices and both were unable to
handle the task of making the changes to the Charter. The Chair said
County Council was asked last year whether they would hire someone to do
what Mr. Shiramizu is doing but the Council said they did not have staff to
do it. Would this mean 3 years from now if we had approved a Charter that
had further grammatical changes, we would not have to come back through
the Commission but through the County Council with the assistance of the
County Attorney could make those changes.
Attorney Winn stated that the Commission's Rules say a proposed
amendment would be sent to the County Attorney and afterwards the
Commission can make such substantive or legal changes as deemed
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necessary. Attorney Winn said she would rather have the proposed
amendment exactly how the Commission wants to present it to the voters,
prior to her looking at the proposal, because if there are substantive changes
made it would have to be sent back to the County Attorney for review
again. Chair TenBruggencate suggested voting on the motion and if it does
go forward to defer it to the next meeting for further discussion. Mr.
Nishida said his motion was to move this forward because you have to
separate the current changes from the future changes and he does not think
the voters will approve the future changes. Overall, Mr. Nishida did not
think this should pass and will vote no. Attorney Winn said approving the
amendment as is will be what she makes her review on. Mr. Justus moved to include or County Clerk in
subsection A following the words County
Attorney.
Attorney Winn asked if that wording was to be included only in subsection
A because it also appears in subsection B. Mr. Justus also asked to include that wording in
subsection B.
Chair TenBruggencate said he would be voting against this because the
Commission is doing this work through Mr. Shiramizu and the voters
should not be burdened with something they probably would not approve.
After a call for the question, Chair TenBruggencate said the question is
whether to pass the proposed Section 24.04 regarding the County Attorney
and or the County Clerk being able to make non-substantive corrections and
revisions to the Charter. Roll Call Vote: Barela-nay; Guy-nay; Justus-
abstain; Nishida-nay; Stack-nay; Suzawa-nay;
TenBruggencate-nay. Motion failed.
CRC 2013-06 Review and Approval of 2013 Meeting Schedule (Deferred
1/28/13) Ms. Barela moved to approve the schedule. Mr.
Justus seconded the motion. Motion carried 7:0
Announcements Next Meeting: Monday, March 25, 2012 at 4:00 p.m.
Adjournment Ms. Barela moved to adjourn the meeting at 5:56
p.m. Mr. Justus seconded the motion. Motion
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carried 7:0
Submitted by: Reviewed and Approved by:
Barbara Davis, Support Clerk Jan TenBruggencate, Chair
( ) Approved as is.
( ) Approved with amendments. See minutes of meeting.