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HomeMy WebLinkAbout2013_0923_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as amended 10/28/13 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I September 23, 2013 Location Mo'ikeha Building, Meeting Room 2A 2B Start of Meeting: 3: 59 pm End of Meeting: 6:04 pm Present Chair Jan TenBruggencate; Vice-Chair Ed Justus. Members: Mary Lou Barela, Joel Guy; James Nishida; Carol Suzawa Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrative Aide Teresa Tamura, County Clerk Ricky Watanabe; Elections Administrator Lyndon Yoshioka and Curtis Shiramizu of Shiramizu Nakamura Loo, Attorneys at Law. Audience Members: Jonathan Jay; Judah Freed; Ken Taylor; Jose Bulatao, Jr. Excused Member: Patrick Stack Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 3: 59 p.m. with 6 Commissioners present Approval of Open Session Minutes of August 26, 2013 Ms. Barela moved to approve the minutes as Minutes circulated. Mr. Justus 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 XXI through XXVI of the Charter (On-going) Section 21 .01 : Mr. Justus asked for clarification on what would replace Section 146- 130 to 146- 171 of the Revised Laws of Hawaii, 1955, which was repealed in 1988 by the State Legislature. Mr. Shiramizu said there was no replacement, and he did not know if that would be considered a non- substantive change. His comment was to advise the Commission of the revised law and what is current now is the Hawaii Revised Statutes. These particular sections were not carried over to the new law so it is a question for the Deputy County Attorney. Mr. Shiramizu does not think this is something the Commission can just delete, nor is it what he is recommending; this is to alert the Commission that section no longer exists and there is no companion. Chair TenBruggencate asked if they should put in parenthesis at the end of the section that it has been repealed. Attorney Winn said that Charter Review Commission Open Session September 23, 2013 Page 2 SUBJECT DISCUSSION ACTION would not go in the official Charter. Chair TenBruggencate asked if the County Clerk would have to elect to put that in their version to which Attorney Winn said yes. Chair TenBruggencate asked if they needed to revisit how to handle numbers and whether it should be figures or written out. The Legislative Drafting Manual says to use figures to express percentages. Section 22.03 C: first sentence change must to shall to remain consistent with the other language in the Charter. Section 22.04: Subtitle should read:Petitioners Committee. Section 22.05 B. (2): last sentence change or to of Section 22.05 C: last sentence change or to of It was pointed out there are numerous references to "the clerk" and the question was should it read "county clerk". Chair TenBruggencate said 22.06 A states the "clerk of the council", which makes it clear which clerk is referenced so further changes are not needed. Section 22.07 A: The word lapse and elapse have been interchanged throughout the Charter. Staff to do word search to analyze usage. Chair TenBruggencate said he prefers elapse if it is an appropriate grammatical construction but will defer to Mr. Shiramizu's analysis. Section 22.08: The beginning of the last sentence change or to of Section 23.01 C: Following the word ordinance, change or to of and capitalize County of Kauai Charter Review Commission Open Session September 23, 2013 Page 3 SUBJECT DISCUSSION ACTION Section 23.01 E: Capitalize State of Hawai`i Section 23.02 J: last sentence change or to of Section 23.02 G: Change last sentence to read: The term of office of the chair of any board or commission shall be one year and no member of any such board or commission shall serve two consecutive terms as chair. Section 23.05: Change or to of Section 23.13 (3): Change sentence to read: Any officer being impeached for matters not relating to the officer's official powers or duties shall bear the officer's own attorney's fees and costs of such proceedings. Section 23.13 B (2): In the last sentence use lower case for council Section 23.14: In the subtitle capitalize Work. Change his or her to the department head's Chair TenBruggencate noted that the Charter interchangeably used county clerk and clerk of the council, but either way it is fine as it stands. Section 26.04 B: A question arose if abolishing the county auditor and county treasurer offices were a result of them previously being elected positions or not. Attorney Winn said Article XXVI is no longer necessary; it was the transitional provisions from when the Charter was originally created. Staff asked to revisit the word council member which was voted in April to be one word but at the August meeting several members preferred the use of two words. Attorney Winn said the Commission voted previously on this Charter Review Commission Open Session September 23, 2013 Page 4 SUBJECT DISCUSSION ACTION item to be one word. CRC 2013-12 Discussion and possible decision-making on the findings and recommendations of the Special Committee on County Districting to the Charter Review Commission, as presented to the Commission at the August 26, 2013 meeting, pursuant to HRS §92-2.5 a. Rough conceptual layout of geographic areas for Kaua'i County Council with Five District Seats; Vote tally on prior charter amendments for Council Partial-Districting; 2006 Vote breakdown from each proposed district regarding Council districting amendment b. Proposed Charter amendment for Sections 1.03, 3.02, 3.03, 3.04 with regard to County Council Partial Districting(Five District/Two At-Large) Chair TenBruggencate advised the audience members that the Commission has made no decision on this item and anticipates that it will remain on the agenda for a while to allow for full public discussion since there are a lot of districting concepts out there. Ms. Suzawa moved to accept the amended report. Mr. Nishida seconded the motion. Jonathan Jay favors districts because it is important when decisions are made for the entire county that someone from each part of the island is there. The proposed districting map is a natural way that the communities on the island exist. Based on that map, the population distribution of the north, south and west districts each have about 10,000 people while the east and central have about 18,000 to 20,000 or roughly twice the amount of the other districts. The east and central districts could be split which would make 7 districts total and more evenly split the population. Attorney Winn reminded the Commission that the actual proposed amendment does not state where the cutoff is, it will be by population determined by an apportionment commission. Charter Review Commission Open Session September 23, 2013 Page 5 SUBJECT DISCUSSION ACTION Mr. Jay said his concern with only 5 districts is that only about 9,000 or 10,000 people live on the north shore and to get it to 13,500, the line would need to extend into Kawaihau and it is not the north district anymore. With 7 districts there is a smaller population per district and keeps the north shore intact. Judah Freed supports the notion of having representative seating on the Council based on districts. There are a number of areas of the island not being represented currently on the County Council, and violates the fundamental principles of fairness. The closest we can come to pure democracy is representative democracy, which would allow the people who have different interests around the island to have someone on the Council who will represent those interests. Districting and At-Large representation allows a balance between people who are specialized in their own districts, and people who are looking out for the community as a whole. Mr. Freed said he would not like to see the County Council become exclusively district based. Ken Taylor supports a combination of districting and at-large, but the voter should have the opportunity to vote for the majority of the Councilmembers. One of the problems with district elections is the individual represents the district while at the same time addresses the issues of the County in general and you cannot serve two masters. Districting can present issues with trading off support, which is not necessarily in the best interest of the whole community. Maui has representatives that come from each district but they are voted upon at-large. Mr. Taylor said he would not support the proposal as set forth, but would consider 3 Districts with 4 At-Large seats and it would be based on the existing districts. As a voter, Mr. Taylor said he wants to be able to vote at least for a board majority, which currently would be 4. Charter Review Commission Open Session September 23, 2013 Page 6 SUBJECT DISCUSSION ACTION Jose Bulatao, Jr. said he is in favor of the districting approach because it provides an opportunity for the constituency to establish a closer rapport with the representative from that respective district. The voting participation has dwindled and districting may be one way to connect again. Council business is determined by the majority of 4 on a 7 member Council and there is the perception that voters want to deal with the 4 members they help get in. Mr. Bulatao referred to the voting history on districting and feels its time has come and could benefit the people in many ways. Mr. Bulatao said he would prefer having the opportunity to vote for 4 people but will leave the formula up to the Commission. It has been brought up that the Hawaiian people are not being represented in the districting option, and when or where there is an opportunity to make decisions or be a part of the decision making process, it should be a consideration worth looking into. Ken Taylor said he would also recommend that in the 2016 election none of the current Charter Commissioners would be allowed to run for office. This body is making a recommendation for a major change in how the County is represented, and for ethical and moral reasons none of the Commissioners should be allowed to run for office. Mr. Justus thanked Ms. Davis for her assistance with the format and language in the proposed amendment. Mr. Justus explained that at the last meeting he was asked if the committee had discussed Districts At-Large. They did and he included this in the amended report. Mr. Justus said the geographical map included in the meeting packet was not part of the committee's report; the tax map key was used as the basis for how the lines were drawn and then he adjusted the population of the island accordingly. Chair TenBruggencate reminded everyone that neither the Commission nor the voters will be deciding on what the districts are; that would be developed by an apportionment commission. Mr. Justus explained how he gathered the Charter Review Commission Open Session September 23, 2013 Page 7 SUBJECT DISCUSSION ACTION information presented in his report and he felt the numbers in the voting breakdown showed that the outlying communities want to have someone that lives in their area to represent them. Ms. Suzawa asked about the number of blank votes to which Chair TenBruggencate noted the blank votes were not more than either the yeses or noes, but they were enough they could throw either number away. Motion to accept the report carried 6:0 The Commissioners took time to express their appreciation to all members of Mr. Justus moved that the Commission accept the committee for the well thought out and developed report. the proposed language for the 5/2 partial districting of the County Council as a Charter amendment. Mr. Guy seconded the motion. Mr. Justus pointed out that he amended his proposal by moving the sections for districting reapportionment and elections to the elections section of the Charter and drafted language to explain how the office of district Councilmembers would work in a County election. Mr. Justus moved to amend his motion to include the language in CRC 2013-12 b so it can be the subject of the discussion. Mr. Guy seconded the motion. Motion to amend the original motion carried 6:0 Ms. Suzawa moved to amend the main motion to propose 3 of the 7 Councilmembers be elected by District and laid out the same as the State Districts and 4 of the 7 Councilmembers be elected at large. Ms. Suzawa explained that she hates to let go of her 7 votes, but could deal with voting for 5 but does not want to vote for just 3. Ms. Suzawa said she Charter Review Commission Open Session September 23, 2013 Page 8 SUBJECT DISCUSSION ACTION truly believes that if the voters cannot vote for the majority, the population is too small to merit splitting up and not having a majority of the Council looking out for the good of the County. Ms. Suzawa stated she believes in districting but would rather start with 3 to see how it works. A 3 District/4 At-Large amendment would have a better likelihood than 5 and 2. Ms. Barela seconded the motion. Mr. Justus said he has looked at other alternatives than the one he presented. He is concerned 3 Districts may be too broad of an area and still divides communities in odd ways as in the State Districts. What if there are 5 Districts with at-large voting and 2 At-Large seats, but in the primary election only the people who live in those districts can vote in the primary for the candidate running from that district; the same way political party candidates are chosen in the primary. In the general election, everyone votes for all candidates in all districts. This allows the residents to choose the people they want to represent their district. Ricky Watanabe and Lyndon Yoshioka were asked to provide input on Mr. Justus' suggestion. Chair TenBruggencate said he understood the question to be is it possible to have different rules on who can vote in a primary election for a particular candidate than in the general election. Mr. Watanabe said there may be some legal concerns regarding that method; however, they have not vetted that concept so they would not be able to provide an official comment. Lyndon Yoshioka said this is the first time he has ever heard of this concept and this is new ground that would require in- depth legal review. Chair TenBruggencate said the Clerk's Office should not do any research until this body votes in favor of it and after it has been run by the County Attorney's Office. Mr. Guy was encouraged to hear all the Commissioners talking about the concept of Districting. The 3 Districts/4 At-Large has met with challenges Charter Review Commission Open Session September 23, 2013 Page 9 SUBJECT DISCUSSION ACTION and since there is good representation for the central part of the island he Motion to amend the main motion with a 3/4 would like to see that representation pushed the other way. Districting failed 1:5 (nays: Guy, Justus, TenBruggencate, Nishida, Barela) Mr. Nishida moved to amend the main motion to 7 District seats. Mr. Guy seconded the motion. Mr. Guy said 7 Districts moves the line closer to getting representation for areas like the north shore. Ms. Suzawa firmly believes the way the island is populated and separated by miles, a move to 7 Districts is separating the island. Ms. Suzawa said she expects all 7 Councilmembers to vote on issues to make everything work for all of Kauai; not just to vote on fixing a road in Hanalei or cleaning up a beach in Kekaha. There is enough difference of opinion in coming to a decision with the current makeup of the Council, and making decisions at Council will be even harder with all Districts. With a majority in control of the Council at least there is hope that things can go forward and 7 Districts is something she would never support. Mr. Justus also did not favor 7 Districts because it is way too small an area to district. It is important to have At-Large candidates in a districting format for balance. With an At-Large Council it becomes too homogeneous and the voice of the minority is lost. Mr. Justus said as much as he wants districting, he cannot support full districting. Ms. Barela said she thinks they need a bigger representation from the community as to what they feel districting should be. Mr. Nishida said he found one place where the Supreme Court ruled that districting be mandated because at-large elections did not represent minority populations. Something else he found was that at-large elections create a homogeneous body. Mr. Guy said he really likes the 5 District/2 At-Large and as the committee worked on this they thought about having the 2 At-Large, whether they be the chair and vice-chair, and give an overall island look. Having lived his entire life on the north shore, Mr. Guy said he feels very under represented. Charter Review Commission Open Session September 23, 2013 Page 10 SUBJECT DISCUSSION ACTION Mr. Jay said each proposal for districting has been a hybrid proposal, and it would make good sense to put the question before the people in the most pure form possible which means do they want districts on Kaua`i, yes or no. The most complete and simple expression is to have the people vote on 7 districts. If another hybrid proposal goes on the ballot some people will vote Motion to amend the main motion to 7 districts for it and some will vote against it because it is a hybrid. carried 4:2 by roll call: aye-Barela; aye-Guy; nay-Justus; aye-Nishida; nay-Suzawa; aye- TenBruggencate Chair TenBruggencate recapped that the main motion is now 7 Districts voted for by district and not at-large. Mr. Nishida moved for a deferment and asked to schedule a public hearing at the next meeting. Before making a decision on the motion on the floor, Chair TenBruggencate asked the Commission if they wanted to make a decision to have a public Mr. Nishida withdrew his motion. hearing on districting. Chair TenBruggencate suggested this go out to the public and that Staff be authorized to locate a time and a place where they can hold a discussion on the subject of districting. Mr. Justus said it would be important to have more than one meeting in one area and this should go out to the different districts to get their input. Staff reminded the Commission that a public hearing requires publication of the notice 30 days prior. Asked if this needed to be a formal public hearing, Attorney Winn said the public can testify at any of the Commission's meetings. Chair TenBruggencate said he would phrase it as public meetings held by the Charter Commission to gather Attorney Winn thought the Commissioners were remembering how they conducted the last meeting, which was done through the subcommittee of three people. If it is all members, it has to be properly noticed. Ms. Suzawa wanted to clarify that what the Commission has to take to the public is 7 Districts. Charter Review Commission Open Session September 23, 2013 Page 11 SUBJECT DISCUSSION ACTION Attorney Winn then explained the difference between using a subcommittee of 3 or less, which does not have the restrictions of the Sunshine Law, and a quorum or full Commission, which requires full Sunshine Law compliance, to take districting to the public for discussion. Mr. Guy said the last subcommittee took the issue to different locations and brought the report back to the full Commission. Mr. Guy said he was hesitant and would like to wait for Mr. Stack to return and voice his wisdom on this topic. Mr. Guy said he received over 50 likes when he posted a request on Facebook for input on this issue, and there were valuable thoughts and ideas that came forth. Not knowing if they can engage the community's feelings via social media, Mr. Guy also did not want to limit meetings to the Lrhu`e area. Mr. Bulatao was concerned with taking 7 Districts to the community before it is determined where the 7 Districts would be; how would the community respond if they do not know which District they belong to. Mr. Justus said he shared that concern as well. Additionally, if they go to the community with only one plan, it is a disservice to the community; there should be an option of plans to generate the best interaction. Ms. Suzawa said legally the Commission voted for one proposal. Attorney Winn said it did not cut off the public's ability to say they do not like the proposal and bring forth what they do. Chair TenBruggencate said they might create another 3 person special purpose committee to go out and hold meetings to hear thoughts on districting. Judah Freed liked the idea of something less formal to gather public input. He further suggested keeping 5 Districts, adding 1 for the homeland and the 3 At-Large, which would expand the Council to 9 people. Ms. Barela moved to create a 3 person panel to go out and chit-chat with the community about districting. Mr. Nishida seconded the motion. Chair TenBruggencate suggested that the panel be different from the last Charter Review Commission Open Session September 23, 2013 Page 12 SUBJECT DISCUSSION ACTION panel. Attorney Winn said the Commission's Rules allow the Chair to appoint special committees. Mr. Guy said he was hesitant to support the motion because he looks at public participation as his duty as a Commissioner, and within 24 hours he received countless, wonderful comments on this topic along with different ideas on districting. At the end of the day he feels confident he has done his job and is ready to put forth something to the voter. If the Commission is not comfortable with that and really wants to go out to the public he will support that, but personally he feels like they have done a big support with the districting process. It is the Commission's job to whittle it out and figure what it is they want to put on the ballot. Mr. Guy said his sense is that they have gone out. He does not want to put in 3 more people, wait more months for them to go out, and to hear what their perspective is based on their thoughts on districting. It is the Commission's responsibility to pick a districting proposal and roll with it. Motion for a 3 person panel to take districting to the public failed 3:3 (nays: Guy, Justus, Nishida) Mr. Nishida moved to defer the main motion. Ms. Barela seconded the motion. Roll call: aye- Barela; aye-Guy; aye-Justus; aye-Nishida; aye- Suzawa; aye-TenBruggencate. Motion carried 6:0 CRC 2013-13 Discuss whether to propose a charter amendment to clarify language as relates to the term removal in Section 19.13 A Mr. Justus moved to defer CRC 2013-13. Ms. Barela seconded the motion. Motion carried 6:0 CRC 2013-14 Section 32.01 County Auditor as it relates to electing the Mr. Justus moved to defer CRC 2013-14. Ms. county auditor instead of appointment by council. Barela seconded the motion. Motion carried 5:1 (nay-TenBruggencate) Section 22.06 Initiative and Referendum as it relates to the creation of a subsection E requiring legal review. Section 7.01 Mayor as it relates to Term of Office and the removal of term Charter Review Commission Open Session September 23, 2013 Page 13 SUBJECT DISCUSSION ACTION limits. Section 3.03 Council as it relates to Term of Office and the removal of term limits. Article XXXIII New article creating an Attorney Commission for oversight of the County Attorney's Office Next Meeting: Monday, October 28, 2013 at 4:00 p.m. Adjournment Mr. Justus moved to adjourn the meeting at 6:04 p.m. Ms. Barela 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.