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HomeMy WebLinkAbout2013_0325_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 4/22/13 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I March 25, 2013 Location Mo'ikeha Building, Meeting Room 2A 2B Start of Meeting: 4:01 pm End of Meeting: 5:02 pm Present Chair Jan TenBruggencate; Vice-Chair Ed Justus. Members: Mary Lou Barela, Joel Guy; James Nishida (4:28 pm); 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 and Curtis Shiramizu of Shiramizu Nakamura Loo, Attorneys at Law Audience Members: Anthony Aguiar; JoAnn Yukimura, Councilmember Excused Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:01 pm with 6 Commissioners present. Chair TenBruggencate explained that he had drafted a press release for consideration on the Commission's efforts to correct grammatical, spelling, and other non-substantive issues in the Charter and relates to agenda item CRC 2013-03. Approval of Regular Open Session Minutes of February 25, 2013 Mr. Justus moved to approve the minutes as Minutes circulated. Ms. Barela seconded the motion. Motion carried 6:0 Business CRC 2013-03 Recommendations from legal analyst Curtis Shiramizu on identifying and proposing non-substantive corrections and revisions to Articles I through IV of the Charter (On-going) Mr. Shiramizu prefaced the meeting by saying he was asked to go through the first 4 articles of the Charter and make gender neutral changes for review by the Commission before making changes throughout the Charter. The second draft provided to the Commission today includes non- substantive corrections to spelling and punctuation. Section 1 .02: correction in the last line should be county ofKaua'i instead Charter Review Commission Open Session March 25, 2013 Page 2 SUBJECT DISCUSSION ACTION of or Section 2.01: correction in the eighth line should be herein or implied rather than of Attorney Winn suggested forming a subcommittee to work with Mr. Shiramizu on suggestions for non-substantive changes. Chair TenBruggencate said in order to assist Mr. Shiramizu, he would like the full Commission to initially weigh in on the types of changes to be recommended and then consider a subcommittee to work on future recommendations. Mr. Shiramizu pointed out that in the official version of the Charter, Section 1.02 does state of. It appears when the Charter was retyped (2004 and the basis for the 2012 Codified Charter) into a Word document, similar typographical errors were made in Articles I through IV and periods were put in place of commas but they were correct in the official version. Mr. Shiramizu discussed the difficulty with determining whether the typographical mistakes were made in the official Charter or the retyped version since the original version is not available electronically except as a PDF document. Chair TenBruggencate indicated that when this project is completed the Codified Charter will be the corrected version of the official version. Attorney Winn was asked which version would be the one to be presented to the voters, the official version with the amendments attached or the corrected codified version. Mr. Justus said if the Charter Commission presents a Charter with the amendments interwoven into it, it would be the same as the original Charter. Attorney Winn said as long as the language is the same as what Council Services has in the original version. Staff explained that except for the few typographical errors that have been noted, the Codified version is the original Charter with the amendments inserted accordingly. Attorney Winn said someone would have to make sure that Charter Review Commission Open Session March 25, 2013 Page 3 SUBJECT DISCUSSION ACTION the version that goes before the voters is the exact same language as the copy at Council Services. Chair TenBruggencate pointed out that no one has the authority to create a codified legal version of the Charter except the voters. Attorney Winn said the voters would be presented with the language that is contained within the approved Charter and all the amendments. Mr. Shiramizu asked if the proposal to have the County Attorney's Office make the proposed changes was off the table. It was explained that the Attorney's Office did not have the staffing for the job so the Commission voted not to proceed with that route. Mr. Justus thought the Commission was over thinking the process. The whole purpose is about non-substantive changes and perhaps Mr. Shiramizu should compare the Codified version with the original version for discrepancies and go from there. Chair TenBruggencate recognized Councilmember Yukimura as part of the body that oversees the official version of the Charter and asked her to share her thoughts. Councilmember Yukimura said she felt like she should apologize saying she had just asked for access to the County Code in hard copy and was given stacks (of papers). The issue of codifying the Ordinances has been before the Council for at least ten years. When Ms. Yukimura last checked, Council Services had retained a contractor but they had not received any work back. Ms. Yukimura recognized the Commission was struggling because there was not a proper code in place. Chair TenBruggencate said that was codifying of the County Code, which is different from the Charter. Ms. Yukimura said it is the basic law of the County starting with the Charter and then all of the Ordinances. Ms. Yukimura said she would report to the Chair of the County Council the specifics of the difficulty the Commission has encountered. Ms. Yukimura pointed out it was just not the Commission but everywhere people need a proper Code to refer to. Ms. Yukimura suggested sending a letter from the Chair or Staff relating the problems that are occurring because there is no Charter Review Commission Open Session March 25, 2013 Page 4 SUBJECT DISCUSSION ACTION finished product of the Codification. Ms. Yukimura said it is the job of the County Clerk to periodically codify (the Codes). It was determined that typos in the Codified version that do not appear in the official version could simply be corrected without being considered changes. The Chair asked Mr. Shiramizu to take judicial notice of both versions and in the version presented to the Commission to indicate the more correct of the two. Mr. Shiramizu said that is how he worked with the first four Articles but again pointed out that the official version is a PDF and requires going through both versions separately to see which are the non-substantive changes and which are actually errors in the transcription. Article III County Council—Chair TenBruggencate said he would like to avoid using pronouns such as his or her as it would be cleaner. Section 3.04 B—replace his or her with said councilmembers in the first part of the sentence and in the last line replace his or her with the. Ms. Suzawa suggested using their. Chair TenBruggencate said he did some research and their has a distinct meaning and is a plural pronoun, not a singular pronoun, which makes it grammatically challenging. A created Mr. Nishida entered the meeting at 4:28 p.m. word being used is hir which is meant to mean both his and her but it will confuse people. Chair TenBruggencate said finding language that is clear, simple, and avoids the problem would be the best way to approach this. Section 3.04 A—replace his in the next to last sentence with the. Section 3.07 A, E, F—change the suggested chairperson to chair(8 changes) and for all future changes. Section 3.11 —two areas in which capitalization of the words do not match what is elsewhere in the Charter: Council should be lower case and in the fourth line the word Charter should be lower case. Staff noted that on the Charter Review Commission Open Session March 25, 2013 Page 5 SUBJECT DISCUSSION ACTION original Charter from Council Services, those two words are capitalized in the attached amendment, which it is not consistent with the rest of the Charter. Chair TenBruggencate said the Commission needs to provide guidance for Mr. Shiramizu for areas where there is no easy way to avoid using a personal pronoun. Ms. Barela said she could not imagine where that change could not be made. The recommendation to Mr. Shiramizu would be to avoid using he, she, him, or her wherever possible and if there is a situation where it cannot be done bring it back to the Commission for consideration. Attorney Winn reminded the Commission they voted at the last meeting to use person or member as appropriate wherever it is gender specific or use the noun of the office or officer intended in areas where Mr. Stack moved that someone or a sub- person can be replaced. committee be assigned to review how the other counties handle gender neutral terms. Mr. Stack referred to Occam's razor saying the theory states that simple is better than complicated when it comes to any form of communication. Mr. Stack suggested looking at the charters of the other 3 counties to see how they have handled this situation. The Commission was advised that the charters from the other islands are available on the internet. Mr. TenBruggencate recommended forming a 2 member sub-committee with Mr. Stack as chair and Mr. TenBruggencate to work with Staff. Attorney Winn reminded the Commission they need to determine the scope of the investigation. Chair TenBruggencate said the scope of the investigation is to look at the county charters of the other islands and report back on whether anything they have done will be useful in this Commission's consideration. If they are going to form a permitted interaction group, Attorney Winn asked whether they want it to do more research than just that one item. Attorney Winn reminded the Commission that 2 members can talk to each other but in order to bring a report to the Charter Review Commission Open Session March 25, 2013 Page 6 SUBJECT DISCUSSION ACTION entire group they would need to follow the Sunshine Law (§92-2.5). Mr. Stack asked if the process could begin with a simple phone call to the chair of the respective charter review of those counties and ask if they have dealt with the situation. Attorney Winn said that could be done. Mr. Justus felt this was being over complicated; someone can simply call the respective County Clerk's Office and ask the question with a report back at the next Chair TenBruggencate asked Ms. Morikami to meeting. look at what the other islands had done thereby eliminating the need for a sub-committee. With regard to the draft of a press release, Mr. Justus said they did that last Press release deferred to such time until the year and he was not sure if the Commission was ready to issue one again. Commission has a more workable document to present. 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(Four District/Three At-Large) (deferred from 2/25/13) Mr. Aguiar—Section 3.02 Composition - Mr. Aguiar would like to see single member districts but increased to 9 councilmembers for better representation of the people and asked the Commission to consider neighborhood boards, not boards that are an appendage to be ignored, but one that has review powers. It would add another layer of government but the boards would be the voice of the people in the making of the laws and this system has worked successfully in Washington State. Chair TenBruggencate asked Mr. Aguiar if he would provide the information on the Washington State neighborhood boards that he had referred to. Mr. Justus then asked Mr. Aguiar to define the 9 districts. Mr. Aguiar said following the census of 2000, a population size of between 5,000 and 7,000 people would allow for 9 districts with a better opportunity for ethnic representation from their area. His research shows that single member Charter Review Commission Open Session March 25, 2013 Page 7 SUBJECT DISCUSSION ACTION districts do not work well unless the opportunity is given to ethic groups who are not as powerful as those people who are in charge. Mr. Aguiar said he would like to actually see 3 single member districts with 2 members in each district with 1 person at- large. Chair TenBruggencate said Mr. Aguiar had mentioned two concepts with regard to the County Council; one suggestion was the 9 single member districts and the other was a 7 member council district with Mr. Aguiar said he is proposing 9 single member districts by population, 5,000 to 7,000 people, but he leaves the neighborhood boards up to the Commission since he does not have a concept of how that would work. Mr. Aguiar questioned how soon before the 2014 election would the Commission decide if this were to be put on the ballot. Chair TenBruggencate said, if it happens, it would probably be the middle of 2014. Mr. Aguiar asked when his deadline would be for submitting a petition in case the Commission does nothing, which would keep the Council at-large. Attorney Winn advised Mr. Aguiar to check with the County Clerk at Council Services. Chair TenBruggencate said if Mr. Aguiar wants to make sure Districting gets on the ballot he should proceed independently and he outlined the 3 ways amendments get placed on the ballot. Councilmember Yukimura—There may be some benefits from districting but there are also many disadvantages. Perhaps when the population gets large enough, districting may become necessary but Ms. Yukimura said she would advocate staying with an at-large system for as long as possible because representation by district is inherently divisive and often contrary to good decision-making for the whole. Ms. Yukimura said she recently received compliments from Honolulu that the County Council, as a body, is really trying to make decisions in a civil and deliberative way; a group that is trying to do good research and hear each other's concerns and then come to a collective decision making. Part of it is because the Council represents the same constituency—everybody in the County. When people are Charter Review Commission Open Session March 25, 2013 Page 8 SUBJECT DISCUSSION ACTION accountable to different segments it gets more difficult and referenced the Honolulu rail system as an example of how public policy can be distorted by politics by district. Accountability is also more easily obscured in a system of districts. In a district system, a portion of the capital budget is often allocated by the "pork barrel" system where each legislator gets his project without scrutiny as to the merits as long as the other legislators get the same privilege. More likely, bad or cost-ineffective projects are approved and other key opportunities to solve major issues or take advantage of major opportunities are not addressed. Districting is assumed to benefit the people of the district but this may not necessarily be so. Right now a resident can advocate a certain vote or position and even have influence with all seven councilmembers. With the proposed 4/3system, a voter will only have influence over three potential councilmembers. It is also not necessarily true that districting would benefit the people of the district because they have someone who lives among them and knows the problems, people, and places of the region. Issues of big money and undue influence can come into play and prevent the person who could best represent the people of a district from being elected. Is it really our goal that the person elected from a district represents only his or her district when the decision would affect everyone in the county? Ms. Yukimura pointed out that the current councilmembers don't only think about the towns or neighborhoods in which they live but, like her, as a councilmember for the whole county. Ms. Yukimura offered suggestions on ways to strengthen the current at-large system. Mr. Guy stated that was great information for which he thanked Ms. Yukimura and suggested that all councilmembers should testify on this issue. Mr. Guy said they all know of the great things Councilmember Yukimura has done but if she had been elected by the Lihu'e district, would she still have done those other things. Ms. Yukimura said she might have been constrained from doing it; she may have proposed all of it but whether Charter Review Commission Open Session March 25, 2013 Page 9 SUBJECT DISCUSSION ACTION she could have gotten it passed would have been the question. Mr. Guy asked about the whole island electing each district, such as is done on Maui, because you would have to appeal to the whole island while representing your district. Ms. Yukimura thought there was real value for people to come from the district but you do get to know the districts if you stick around long enough because different issues take you into the districts. If someone does their homework well they can do it without living there. Ms. Yukimura said it was not what she would have done, but whether she could get the votes to vote for the systems or things that she pushed for if people were only thinking about their district. Ms. Yukimura said they need to develop leadership from all different sectors of the population; people who can represent their sectors whether by region or ethnic group or a particular point of view. Mr. Guy asked if the election by the island as a whole eliminates the horse-trading fear. Ms. Yukimura said it does because you are accountable to the same people, so you can't hide by getting somebody else to do the work. Chair TenBruggencate noted there was a proposal on the table but there was no motion. Mr. Justus moved to form a sub-committee to develop language on the Charter regional committee as brought forth by the first sub- Mr. Justus said different concepts were discussed but actual language was committee. not developed for that idea. Chair TenBruggencate asked Mr. Justus to be clearer on what the sub-committee would be charged with doing. Mr. Justus restated his motion to create a sub- committee to examine further the concept of the Council regional committee proposed by the prior sub-committee in order to develop potential Charter amendment language for that Ms. Suzawa asked to clarify if this was in reference to the community idea. boards from the different districts. Mr. Justus said no; there were several alternatives to districting that the sub-committee came up with. It included Charter Review Commission Open Session March 25, 2013 Page 10 SUBJECT DISCUSSION ACTION the neighborhood board and the Council regional committee where each of the at-large councilmembers would be required (originally assigned)to go into each of the communities, take input, and be required to take action on it. Then, report back the next month as to what they have or have not done which would make them more accountable to the people at-large. Ms. Suzawa said if they pull out the prior sub-committee report instead of reinventing the work,there are several options to look at. Mr. Justus said there were two; one was the 4/3 districting and the other was the proposal from Jonathan Jay of the 7 districts at-large. The neighborhood board concept was an alternative to districting because of Mr. Nishida and Ms. Suzawa's concerns that districting would not address the need of either accountability or representation. The other concept would be a much simpler change, making the current at-large councilmembers accountable by going into the different towns. Mr. Justus said on further thought instead of assigning a councilmember to one area which could lead to favoritism, all seven councilmembers would rotate monthly to the seven different parts of the island and bring their actions back to that community. That at-large council would be communicating directly with the people from all the different parts of the island. Attorney Winn said there was a motion on the floor with a question to further clarify on the motion, but it was not a discussion of the various proposals. Motion failed for lack of a second. Ms. Yukimura—In the process of Council proceedings, the Council did hear about Portland (which Mr. Aguiar spoke of)which has only 3 councilmembers for the entire city, but they have a very strong neighborhood system. Kaua'i already has some very strong community organizations that serve as some of the function of neighborhood boards. What would be worth looking at is the Office of Community Empowerment (or something like that) in the city of Portland that builds community Charter Review Commission Open Session March 25, 2013 Page 11 SUBJECT DISCUSSION ACTION capacity. This Office helps build capacity in terms of rules for functioning and leadership training;this is one way to really build community. Ms. Yukimura recognized Mr. Justus' desire to have the Council be more responsive to all the individual communities, but before proposing it for the Charter he should bring it before the County Council and ask them to consider it as part of their Rules or their organizing as a way to do outreach. Mr. Justus said his concern with Rules was a future Council could decide that was not necessary, whereas if it was mandated in the Charter, accountability to the people would be ensured. Ms. Yukimura said if he could show it would be a good working system it would continue from its own merits and because it works well. Ms. Yukimura said as someone who works full time to address regional issues, she does not know how productive it would be for seven people in the Council to hold meetings to get input because unless something specific is put in front of the County Council for action, nothing will happen. Mr. Aguiar said he liked the concept of full time councilmembers and the model he spoke of was Portland and not Washington. Mr. Aguiar asked the Commission to seriously look at the 4 districts with 2 members elected from each district and 1 at-large. Chair TenBruggencate noted that without a motion for further action on the 4 District/3 At-Large proposal on the floor he would solicit a motion to receive. Mr. Guy moved to receive the proposal. Mr. Nishida seconded the motion. Mr. Guy withdrew his motion and Mr. Nishida withdrew the second. Mr. Nishida said he moved to receive the proposal because it was too Mr. Nishida moved to receive the proposal. Ms. Charter Review Commission Open Session March 25, 2013 Page 12 SUBJECT DISCUSSION ACTION narrow a focus to proceed with. While some people are frustrated, there Barela seconded the motion. may be other ways to deal with the frustration or representation but districting is not the time to look at it. Mr. Nishida always felt a big missing piece with representation was some type of neighborhood relationship; one cannot address districting without addressing representation. The people are expressing a problem with representation but looking at districting as a solution which it is not; Kaua'i is too small. Attorney Winn said it was helpful to have a set idea such as the 4/3 districting for discussion, which can then be tweaked or received, but it is most helpful to have the language set out first. Mr. Justus said he would be glad to put this current proposal to a vote to get it off the agenda if Mr. Nishida was willing to withdraw his motion. Attorney Winn advised Mr. Justus that receiving the proposal would take it off the agenda. Roll Call Vote: Barela—aye; Guy—nay; Justus —abstain; Nishida—aye; Stack—aye; Suzawa— Chair TenBruggencate said he would be happy to put further proposals on aye; TenBruggencate—aye. Motion carried 5:1- the agenda. nay:1-abstain Mr. Nishida said there were substantive changes to the Charter relating to State laws that may have changed but have not been dealt with. Attorney Winn pointed out those are not non-substantive changes so they would have to be placed on the agenda for discussion. Chair TenBruggencate clarified for audience members that there are references to State laws in the old Charter that are no longer in existence but the Commission feels these are not non-substantive changes they can deal with. Ms. Morikami said that Mr. Shiramizu is totally aware of that issue and is looking at ways to resolve it. Announcements Next Meeting: Monday, April 22, 2013 at 4:00 p.m. Adjournment Mr. Justus moved to adjourn the meeting at 5:35 p.m. Mr. Stack seconded the motion. Motion Charter Review Commission Open Session March 25, 2013 Page 13 SUBJECT DISCUSSION ACTION 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.