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HomeMy WebLinkAbout2014_1027_Minutes Open_APPROVEDCOUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 11/24/14 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date October 27, 2014 Location Mo'ikeha Building, Meeting Room 2A/213 Start of Meeting: 4:01 pm End of Meeting: 5:13 pm Present Chair James Nishida; Vice -Chair Jan TenBruggencate. Members: Joel Guy (4:06 pm); Ed Justus; Patrick Stack; Carol Suzawa; Also: Deputy County Attorney Nick Courson (4:06 pm); Boards & Commissions Office Staff. Support Clerk Barbara Davis; Administrator Paula Morikami Excused Member Mary Lou Barela Absent SUBJECT DISCUSSION ACTION Call To Order Chair Nishida called the meeting to order at 4:01 m with 5 Commissioners present Approval of Minutes Regular _pen Session Minutes of August 25, 2014 Mr. TenBruggencate moved to approve the minutes as circulated. Mr. Justus seconded the motion. Motion carried 5:0 Business CRC 2013-03 Review of Recommendations in Ramseyer form from legal Mr. TenBruggencate moved to defer. Ms. Suzawa seconded the motion. Motion carried 5:0 analyst Curtis Shiramizu on identifying and proposing non -substantive corrections and revisions to the Kauai County Charter (On -going defer pending Staff and Legal Review) CRC 2014-05 Discussion and possible decision -making on whether a footnote is Mr. TenBruggencate moved to defer pending receipt of County Attorney's opinion. Mr. Justus seconded the motion. Motion carried 5:0 required to clarify subsections B. and C. of Section 26.04. Status of Departments and Transfer of Funds (Defer pending receipt of the County Attorney's opinion) CRC 2014-06 Discussion on whether there is a need to define what a charter amendment is a. Add a preamble or an additional paragraph to section 1.01 (Defer pendingreceipt eceipt of County Attorney's pinion as to whether the Preamble to the Charter was adopted by the people in 1968 and why it does not show up in subsequent documents) b. Revision of Article XXIV by Commissioner Justus clarifying what Charter Review Commission Open Session October 27, 2014 Page 2 SUBJECT DISCUSSION ACTION constitutes a charter amendment Mr. Justus explained that he created the proposal amending Article XXIV by utilizing about ninety to ninety-five percent of the language in Article XXII. Mr. Justus also pointed out the amendment regarding presentation of a voter's petition previously passed by the Commission is not included in this amendment. The current proposal defines what a charter amendment is, and establishes a clear process for the various entities that will be proposing amendments. The biggest change is the amendment proposal for voter Mr. Guy and Deputy Attorney Courson entered the petition which follows the same pattern as in Article XXII regarding meeting at 4:06 p.m. initiative and referendum. Mr. Justus suggested going over each section in order that he could explain the proposed changes. Mr. TenBruggencate asked if Mr. Justus felt the language in Article XXII was clearer than the language in Article XXIV to which Mr. Justus replied it is much clearer. The process for the people who create a petition for an initiative or referendum is laid out in a multi -page process that the petitioners need to go through. The same process is similarly applied when someone presents a charter amendment, but that process is not in the Charter. Chair Nishida asked if he had checked with the County Clerk that what is in the Charter is what they use to which Mr. Justus said no, but he would like input from the Clerk's office. Mr. Justus proceeded to explain his proposal during which the Commission made changes. Section 24.02 of the proposed amendment: Change the header that reads "Constitution of Amendment" to Content ofAmendments; the Charter is the Constitution for the County and the word is unnecessary. Delete the sentence that reads: Any ehafter amendment,.an t sefve or functionas a language. Since this is part of a court ruling, it is not necessary Charter Review Commission Open Session October 27, 2014 Page 3 SUBJECT DISCUSSION ACTION as part of the Charter. Mr. Justus said the whole purpose of defining what the substance of amendments are supposed to be is to prevent things from being put on the ballot that do not constitute a valid charter amendment. While in complete agreement with that, Mr. Guy said Mr. Justus was not saying what it does not do. Mr. TenBruggencate stated that Mr. Justus had already said what was necessary in the first part of the paragraph; additional verbiage creates a problem to the potential for difficulty in the future. Section 24.03 of the proposed amendment: delete proposed words "are to" and retain the original wording of may. A discussion took place on whether the wording should be such as to indicate absolute action, but it was suggested that "may" would be adequate since it is used in conjunction with the word "only", which indicates there are no other alternatives. Section 24.04 of the proposed amendment: Change the word "can" to may in the second sentence. Following an explanation of the creation of Section 24.05 of the proposed amendment, Chair Nishida stated this bothers him because initiative and referendum creates law, which is very different from charter amendments, which creates departments, their functions, and the way government is set up. Mr. Justus explained he was not mixing the two together, he only utilized the language, and applied it to charter amendments. Chair Nishida did not think the language was necessary to charter amendments whereas it is necessary to initiative and referendum where it is actually changing law. Mr. Justus clarified that he was not talking about public initiative going through a required county attorney review. This section explains the form and function that proposals are supposed to go through. Mr. TenBruggencate said this is the section he has the most trouble with; Charter Review Commission Open Session October 27, 2014 . _. SUBJECT DISCUSSION ACTION submitting the petition to the Council, and yet the language does not say what the Council is supposed to do with it, and yet all future language only deals with the County Clerk and not the Council. Would it go to the Council for approval, for processing of what; what is the Council supposed to do with it. It is also being presented to the County Attorney but for what; later on it says they can either get a review by the County Attorney or by their own private counsel. Mr. Justus pointed out this amendment does not have that and suggested looking at Section 24.07. Mr. TenBruggencate expressed concern in that he did read that section four times and asked what Mr. Justus' mission is. After Mr. Justus read aloud Section 24.07, Mr. TenBruggencate said his question is still that 24.05 says the clerk is to give the petition to the County Attorney, why? Mr. Justus said the answer is in Section 24.05 C. It is presented to the County Attorney who may propose alterations or changes in the form or language; in the current Charter the only person who is allowed to make any changes to the committee is the County Attorney. This adds clarity. Ms. Morikami said it is the understanding that the County Attorney's Office represents the County of Kauai, which includes the Council, the Administration, and anyone who works in the County. The Attorney does not represent in any way a voter petition so when the amendment says the County Clerk will immediately present to the County Attorney the text of the proposed language the question becomes what for if they have no jurisdiction. Deputy Attorney Courson said the Attorneys give advice to the Clerk on whether the amendment is sufficient or insufficient; the Clerk is the County Attorney's client. When the Attorney's Office starts giving advice to the public they are working both sides, which is problematic. Mr. Justus responded to Ms. Morikami's comment by saying the current Charter already gives the opportunity to change the form of language or restatement of the text of the proposed amendment. Ms. Morikami said there was a specific reason, and that was the issue of "may" versus "shall" to which Mr. Charter Review Commission Open Session October 27, 2014 Page 5 SUBJECT DISCUSSION ACTION Justus said the text still says "may", there is no requirement of the County Attorney's Office at all. Mr. Justus asked if eliminating the last sentence in Section 24.05 A would eliminate the confusion. Eliminating that sentence still does not resolve the issue of the Council, but Mr. Justus said the reason he did not address the issue with Council is there is a charter amendment that may be going to the voters that changes it from being presented to the Council to being presented to the Clerk, and he did not want this amendment to interfere with that amendment. To clearly define anything by Council would alter the whole purpose of the last charter amendment approved by this body. Mr. TenBruggencate asked if Mr. Justus was assuming that if that measure passes it will correct this language. Mr. Justus said if that measure passes it changes the Charter, but it may not pass. Mr. TenBruggencate said if that measure passes and this measure passes then there is conflicting language. Mr. Justus asked Mr. TenBruggencate to explain that further because it is only correcting one word, and the new proposal is correcting a much wider range of things. Mr. TenBruggencate said if they both go forward and one charter amendment approved by the voters says it gets presented to the Council, and one charter amendment approved by the voters says it presented to the clerk, who does it get presented to? Mr. Justus said he is not altering the original language so if both measures pass it is presented to the clerk. Further discussion ensued but still left a question of conflict if both proposals pass. Deputy Attorney Courson said a charter amendment can delete, add, modify — where the inspiration is drawn from is Mr. Justus' business. Mr. Justus thought it would be legally safer to make the change of presenting to the Council in this proposal that changes everything as opposed to a single word change that is not part of this package. Deputy Attorney Courson said that would lessen the chances of conflict tremendously. Mr. Justus stated since this was no longer an issue to him he would be perfectly glad to reword the last sentence in proposed Section 24.05 A to read: The petition is to be presented to the county clerk. Another issue is there are several Charter Review Commission Open Session October 27, 2014 SUBJECT DISCUSSION ACTION changes that people may agree with a portion of, but not with other portions. Mr. TenBruggencate said while this clarifies to whom it is to be presented it still does not address the issue of for what purpose. What authority is being given to the County Clerk; can they turn it down, submit it for legal review? Mr. Justus said his purpose for this is that the petition is to be filed with the County Clerk; filing does not have to do with voting yea or nay. The required processes are further described in the proposed amendment. Deputy Attorney Courson asked who says it is not acceptable if those processes are not done. Mr. Justus replied it is the County Clerk as noted in subsection E., and following the last petition issue is when it became clear that the language needed to be fixed. Mr. Guy said if the Commission does not support the overall perspective, clearly there will be lots of questions they can't get through; there are lots of opportunities to not move this forward if he is not getting the support. Mr. Guy wished it was clearer on the process for charter amendments. Mr. Justus moved to accept the amendment with Chair Nishida asked for a motion to defer to the next meeting or a motion to the current changes as discussed. Mr. Stack accept the amendment. seconded the motion. Mr. Guy asked if a deferral would allow the Commission to continue the discussion to get it closer to what they want to accept. Mr. Justus felt a deferral right now would not do that. The purpose of the discussion is to allow a clearer understanding of the entire proposal. Mr. Guy suggested if Mr. Justus withdrew his motion. Mr. Stack they defer to the next meeting they can keep working on it. If they accept withdrew his second. this proposal the way it is it goes to legal review. Mr. Guy moved to defer this proposal to next month. Mr. Justus seconded the motion. Chair Nishida asked Staff to obtain from the County Clerk the process for Charter Review Commission Open Session October 27, 2014 Page 7 SUBJECT DISCUSSION ACTION submitting a charter amendment so the Commission can review the clarity Motion carried 4:2 (nay — Nishida; of those instructions. Chair Nishida felt the petitioners probably received TenBruggencate) clear instructions, but may have interpreted it differently. Announcements Next Meeting: Monday, November 24, 2014 — 4:00 p.m. Adjournment Mr. TenBruggencate moved to adjourn the meeting at 5:13 p.m. Mr. Guy seconded the motion. Motion carried 6:0 Submitted by: Barbara Davis, Support Clerk O Approved as circulated. O Approved with amendments. See minutes of Reviewed and Approved by: meeting. James Nishida, Jr., Chair