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HomeMy WebLinkAbout02/12/2014 Council minutes COUNCIL MEETING FEBRUARY 12, 2014 The Council Meeting of the Council of the County of Kaua`i was called to order by Council Chair Jay Furfaro at the Council Chambers, 4396 Rice Street, Room 201, Lihu`e, Kaua`i, on Wednesday, February 12, 2014 at 9:30 a.m., after which the following members answered the call of the roll: Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Mel Rapozo Honorable Jay Furfaro Excused: Honorable Tim Bynum Honorable JoAnn A. Yukimura APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Mr. Chock, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: May the Clerk read the Public Comment portion of our agenda? RICKY WATANABE, County Clerk: Yes, Chair. PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). Chair Furfaro: Thank you. Is there anyone in the audience who wishes to speak? Glenn, I need to respond to the fact that if you speak now, you will not be able to speak on any other agenda item for the day. GLENN MICKENS: But I can take any two, three, or four items off the agenda, right? Chair Furfaro: Once I start your clock, you can you speak for three (3) minutes. Mr. Mickens: On any items? COUNCIL MEETING 2 FEBRUARY 12, 2014 Chair Furfaro: Any item that is on the agenda. Mr. Mickens: But I have three (3) minutes to talk on each item? Chair Furfaro: I think that is what I said, Glenn. You have three (3) minutes and I have not started the clock yet. Mr. Mickens: Okay. I just wanted to get the ground rules straight. Chair Furfaro: Point of order, Mr. Hooser? Mr. Hooser: Chair, I think what I am hearing is that Mr. Mickens believes he can speak on three different items for three different minutes and I do not know if that is the rule. Chair Furfaro: No. He gets three (3) minutes and in those three (3) minutes, he can speak on any item on the agenda. Mr. Mickens: But I have three (3) minutes for each item... Chair Furfaro: No. You get three (3) minutes... Mr. Mickens: Here is the Office of Information Practices (OIP) opinion. Do you want it? Chair Furfaro: Do you have it? Mr. Mickens: It is passed out to you guys too. I passed out a copy of OIP's opinion. Chair Furfaro: Can somebody get the OIP opinion? We are in recess. There being no objections, the meeting recessed at 9:33 a.m. The meeting reconvened at 9:40 a.m., and proceeded as follows: Chair Furfaro: I have had time to consult with our attorneys as it relates to the Hawai`i Community Development Association (HCDA) and they, in fact, are the development corporation that is working at Kaka`ako. In their particular rules, all testimony is taken in the beginning, just so that we understand. Our rules do not imply that nor have we been able to confirm that our rules were reviewed at the same time when the question was asked, so I am going to reconfirm that. Also in our rules, the convenience of speaking at the beginning here on any item on the agenda is, in fact, a privilege so that people can have specific times. The difference is every time a new item comes up, if you did not take advantage of the early time, you could speak on every item in our rules, but at the time it comes up on the agenda. I want to make sure that we all understand that I am not conceding to the opinion from OIP that is referencing the Hawai`i Community Development Association because with the Hawai`i Community Development Association in Kaka`ako, all testimony is taken in the beginning. Ours is different. COUNCIL MEETING 3 FEBRUARY 12, 2014 Mr. Mickens: May I just say something? Chair Furfaro: No, you may not, Glenn. I will explain all of the rules not for you, but for the public. On that note, I will be asking the County Attorney to double check that we are in compliance, reinforce the fact that this is not the only time that someone can speak, and make reference for them to review our rules. That is for today, members; that is only for today. Also, our rules are very clear that this would not take more than eighteen (18) minutes and each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss any agenda items. Those are our rules. There is no question and answer after testimony. Those are the reviews that we are going to ask to be made, right, Ricky? Mr. Watanabe: Yes. Chair Furfaro: Glenn, for today, read each number and you are going to take six (6) of the eighteen (18) minutes. Shay is going to take six (6) of the eighteen (18) minutes. Joe is going to take three (3) of the eighteen minutes. That leaves us three (3) extra minutes according to our rules. Now I will recognize you with the clock. Identify which items you are speaking on for the first three (3) minutes. This is the exception for today until we get the interpretation. Mr. Mickens: If I do not use three (3) minutes, which I do not think I will use three (3) minutes on each of my items, does that mean that the other... Chair Furfaro: That means that it is at the discretion of the Chair according to our rules. Mr. Mickens: I understand. Mr. Rapozo: Mr. Chair, I just have a process question. I am not sure how long it will take our attorneys to render an opinion... Chair Furfaro: They are not going to render an opinion today; it will be in two (2) weeks. Mr. Rapozo: Okay. As I have become familiar with the Sunshine Law— and I tend to agree with what you just stated that this opinion was set up for HCDA and not the Kaua`i County Council, but I agree with that; however, I notice on the bottom of page number one where they make a footnote that HCDA is a "board" and that is a term is defined by Section 92-2 of the Hawai`i Revised Statutes (HRS) which is the Sunshine Law. I do not have the time or energy right now to go research that and I think we should move on, but I do believe that in the Sunshine Law, there is a clause in there that says if there are any questions, we should err on the side of openness. I do not know how many items Mr. Mickens wishes to testify on today. Chair Furfaro: Mel, I just went through that. Mr. Rapozo: Just hear me out, Mr. Chair. Until we get the formal opinion on our rule, I would suggest that we honor the opinion that is written for HCDA even if it is not applicable to Kaua`i. That way, there will be no question. The public will have their opportunity to speak and I would ask that the public do not take advantage and speak on thirteen items at three (3) minutes COUNCIL MEETING 4 FEBRUARY 12, 2014 apiece. That way, there is no dispute, no protest, and they are allowed to speak only three (3) minutes per item. Afterwards, we will get the ruling from the OIP. That would be my suggestion and I would be curious to hear how the other members feel. Chair Furfaro: First of all, let me answer a couple of those questions. The major difference is with this group, HCDA, you cannot testify when the different projects come up. All of the testimony is taken upfront. Our rules— somebody could be in the audience all day and they can testify on every item. The convenience of the early testimony is for timing and people who want to speak. Our rules indicate that somebody is capped out after eighteen (18) minutes at the discretion of the Chair. I just asked you what you wanted to speak on. It caps out at fifteen (15) minutes. We are within both rules and we will have this clarified next week. In the meantime, I am erring on the side of caution. I am not saying to Glenn that he can have just one testimony. I am saying that if he wants to speak on two, then I am going to allow it. I am erring on the side of caution. Other members have anything to say? If not, go ahead, Glenn, and please identify the item you are speaking on. Mr. Mickens: Okay. Thank you for your clarification, Jay. I am in no way trying to take advantage of your ruling or anybody else's ruling. Chair Furfaro: I do not want to run the clock yet, but Glenn, this thing came over to us at 9:09 a.m. it looks like. Mr. Mickens: Yes, I understand. Chair Furfaro: I did not see it before. I was talking with the skateboard guy, so it is not like I had a couple of days to analyze this. Mr. Mickens: Right. Chair Furfaro: Do you agree with that? Mr. Mickens: Yes. Chair Furfaro: Okay. Let us start his time from now. There being no objections, the rules were suspended. Mr. Mickens: This is regarding Bill No. 2514. I am strongly opposed to Bill No. 2514, which will increase our vehicle weight tax. There seems to be no end to increasing our taxes and many people struggle just to survive. The point of no return has already been crossed. Our County Auditor and his Staff has done a great job with the six (6) audits. Before we even start thinking about increasing taxes, why have we not thoroughly delved into researching these audits and probably find enough waste to eliminate the need for any new taxes? People are hurting now and by exacerbating the problem with more and more fees and taxes, what will they do? Bankruptcy or dig into a deeper hole will be their only option. As a few members of this Council pointed out, why do we not look at areas of waste, excessive employment, and duplicity in our government before burdening our taxpayers with more debt? Remember how we added a six dollar ($6) fee for trash pick-up and another six dollar ($6) fee for transfer station use and yet, we did not show any elimination of fees from our property taxes for the same service. Are COUNCIL MEETING 5 FEBRUARY 12, 2014 the people not being double charged for the same service? Thus, the beat goes on to tax and tax some more instead of eliminating waste. In California and other municipalities on the mainland, the license for a vehicle is lowered as the vehicle ages. I own a 1935 Ford convertible that I had for sixty-five (65) years; it was the first car I bought when I was seventeen (17). In California, I paid a minimum fee of nine dollars ($9) to license it. Here on Kaua`i, the weight of this car, my 1989 Toyota truck, causes the fee to remain static with a new increase facing us. Why do we not look at a more equitable and cheaper way to tax our vehicles as they do? Again, let us thoroughly examine the recommendations of the audits made and enjoy a lot of benefits if we take their recommendations. Are there any questions at this time? I am sorry, Jay. You are not supposed to ask questions. Chair Furfaro: There are to be no questions at this time, Glenn. Please read the next item by number. As you know, we are making this exception for this meeting until we get clarification. Mr. Mickens: Yes. This is regarding those five (5) Executive Sessions that we are going to have today. With another five (5) Executive Sessions on the agenda today, along with all of the rest and the twenty-three (23) that we have held for our County Auditor, we are probably on course for a record number of them. I find that the majority of these Executive Sessions are a total waste of time and taxpayers' money. A few years ago, Ken Taylor and I testified for thirteen (13) months about the illegality of holding an Executive Session unless it was held for one reason only; a claim as outlined in our Charter. At that time, the State Charter had eight (8) reasons for going into Executive Session whereas our Charter had one. HRS stated that if a County Charter was more stringent than the State Charter, then the County Charter would prevail. We continue to urge our reading of Section 3.07(e) and no one on the Council at that time or from the County Attorney's Office was ever able to establish it was wrong. Therefore, big time politics entered the picture and this issue was given to the Charter Review Commission which they, after several protests from the public asking who and what needed changing, put it on the ballot, and worded it in a confusing manner. It was basically asked if we did not want our Charter to conform to the State Charter giving the Council eight (8) reasons to go into Executive Session and it was passed— politics at its worse. My point is that had Section 3.07(e) been left and enforced as written, there would be no need for most of these secret sessions and they would have been illegal at the time. Ironically today, Section 3.07(e) was never put on the agenda until it was changed and now it appears on all of them. I hope you understand my point. If we keep going into these Executive Sessions over and over again, it will cost the taxpayers a lot of money. Had we left it the way it was with Section 3.07(e) guiding the project, this would never happen. Unless it was for a claim that was outlined in the Charter, it would have never happened. Thank you, Jay. Chair Furfaro: Thank you. Joe, please come up and start by reading your item. JOE ROSA: Good morning, members of the Council. For the record, Joe Rosa. I will be speaking on the so-called "vehicle weight tax." It has been brought to my attention as to why there is another vehicle weight tax. The people of Kaua`i is up to their neck in taxes. Every time the County needs money, they go to taxes. They hit you on your gas tax, vehicle weight tax, and they hit the people at the dumps with fees over there. Where is the end? A lot of this here is because of poor consultation from our County Attorney because it is always ending COUNCIL MEETING 6 FEBRUARY 12, 2014 up in liability cases, and then the County needs money. Where did it go to? The people of Kaua`i. How do they get it? By way of taxes. It is unfair. It is because of some of the doings of the advisory that you people have within this County. They should have people that can do the job, do the work, and get paid for what they are doing; not getting a free ride. Every time you hear, "They need funding for consultants." What about them? Are they not capable to a point where they could work on those cases? So why is it? I know the gas taxes and things on this thing here should go for the highway maintenance. I hope that all these things like the vehicle weight tax and gas tax go for this resurfacing and repairing of the County's road system like the Department of Transportation. Something has to be looked into. That is why a lot of these County audits have uncovered a whole lot of things that is still going according to the "local boy style." It needs to be corrected and maybe we can get away with those taxes and stuff. We like the benefits, but yet you have to control cutting back. One of the most expensive items within the last thirty (30) years for this County has been the bikeways plus the liability cases that the County has. I think this year coming up is another five (5) cases against the County. That is not County business. There should not be these kinds of liability suits against the County if you have proper consultants from within the Department. Think about it. Every year, vehicle weight tax and a lot of the things are already paid in our property taxes. I have never seen the County maintenance guys come in the subdivision and mow like they used to. What is happening? That is in the property tax (inaudible) that they should come around and look into the things there. Chair Furfaro: That was your time, Joe. Mr. Rosa: Anyway, that is about it, Jay. I think the County should tighten their own belts before they go and assess more things on the people. Chair Furfaro: Thank you, Joe. Mr. Rosa: Thank you. Chair Furfaro: Shaylene, you are going to speak on two items, so you will have six (6) minutes. When you are ready, you can start. SHAYLENE ISERI: For the record, Shaylene Iseri. The items that I am speaking on are on "Bills for First Reading," item number two and number three. I actually have the same concerns for both items. Proposed Draft Bill No. 2531 is requesting from the Office County Attorney, Consultant Services/Special Counsel in the huge, exorbitant sum of five hundred thousand dollars ($500,000). There is a reference on this Bill, one signed by Vice Chair Mason Chock, that provides absolutely no information as to how this money is going to be spent, why it is going to be spent, who it is going to be spent for, or when it is going to be spent for. Has it already been spent? Have fees already been incurred and now they are doing an after-the-fact request to the County Council to authorize five hundred thousand dollars ($500,000)? This is just outrageous that these actions continue to happen by this County Attorney week, after week, after week. It insults the intelligence of the people and it also insults the intelligence of the Councilmembers to allow a Bill to be introduced with absolutely no information at all. Absolutely zero. Then they are requesting— regardless if it is first reading. I have been a Councilmember before and I know what "first reading" is. It is usually a done deal where you just stamp it, move on to second reading, move on to public COUNCIL MEETING 7 FEBRUARY 12, 2014 hearing, and then we will get information later. No, the buck stops here. When you have a County Attorney who has an office staff of millions of dollars and almost ten (10) attorneys under his wing, including himself, who gets paid one hundred fourteen thousand dollars ($114,000) and they insult the intelligence of the County Council by preparing a Bill that has absolutely zero information contained in it and expect this Council to routinely pass these kinds of measures. This is five hundred thousand dollars ($500,000). The other Bill for the Police Department— another five hundred thousand dollars ($500,000). The other Bill for Black Pot— one million two hundred fifty-nine thousand dollars ($1,259,000). All bills for first reading and absolutely no requests by this Council before it evens appears on the agenda to ask the "who, what, where, when, and why" questions. It is an embarrassment to the public that this has been allowed to happen week, after week, after week. I expect that in light of what I have been raising at this time, this Council will receive this item and I expect that the people get all of the information that they need. It does not even give me... it does not even comply, I believe, even with the Sunshine Law. What information does it provide to me to give you any type of testimony on this item when I do not even know what it is for? This agenda item— I am sure you all have reviewed or supposed to have reviewed all of the agenda items, and there is absolutely no clarification while this is allowed to be placed on the agenda. That is why we waste time. This is coming from a person who is supposed to be working in the best interest of the County and provide openness, honesty, and transparency. Week, after week, he provides this kind of useless information to the public. I demand that this Council... Chair Furfaro: Shay, that was three (3) minutes. Ms. Iseri: Okay. I am closing up on this Bill. I demand that the Council receive this item and do not waste the taxpayers' time and money, and staffs resources to put useless, without merit types of information on the agenda. The second item that I have is again, the same problem. For item ES-696, "Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing, discussion and consultation regarding the quarterly report on pending and denied claims." Pending and denied claims— what are they? Me, again as an attorney, cannot figure out what this agenda item is much less any normal person without as much education as I had, especially with my experience of working with the Council, cannot figure out what this is. Who posts an agenda like this that provides absolutely no information? I pose a question to each one of you Councilmembers; what are the pending and denied claims? I made a request to your Staff that I wanted a listing of all the pending and denied claims. Absolutely zero. Nothing to the public. If this Council prides itself on honesty, openness, and transparency; I can tell you just by the two agenda items that I have pointed out, and I could go on, it clearly fails the people when this is continually allowed to happen by this County Attorney. I would like to be provided a list of all the pending and denied claims. I would like to be provided an opportunity to do my due diligence in bringing forth the Sunshine Law so that I have information to provide reasonable testimony to affect your decisions when you deliberate on ES-696 or any other item. I can go through each one, and to me, they are all defective. Again, who drafts these? It is your County Attorney that you pay one hundred fourteen thousand dollars ($114,000) that again, fails to provide any information to the public. The Councilmembers have routinely allowed this to happen. I ask that the buck stops here. I will be here, hopefully every week, to bring forth these kinds of issues about the deficiencies in the County Attorney's Office. I would ask that this COUNCIL MEETING 8 FEBRUARY 12, 2014 Council initiate its due diligence in bringing forth accountability for the County Attorney's Office, especially with the enormous amount of budget it has and yet, continually applies for millions of dollars in attorneys' fees. Get rid of the County Attorney's Office. If it is not doing its job to the Council and not serving the public, then he needs to be removed. Special Council— we should engage in because millions of dollars... this is what was not even budgeted for. He is coming back after the budget because we already did the budget and passed the budget back in July. We are midyear and he is asking for one million dollars ($1,000,000) again? It is outrageous the amount of money that they routinely spend because it is not their money; it is your taxpayers' money. I ask that you do what is right and receive all of these items until you have sufficient information to provide to the public, so they can provide reasonable information to you and affect these kinds of decisions that are being made by the County Attorney's Office. Chair Furfaro: I am going to just identify a few comments as the Chair, which is my right. Members, please refer to your January 9 Executive Session pieces, in which in a confidential communication, we are getting our update on pending claims, the costs associated with them, and the outstanding balances for the year. They do exist, as I referenced my own book here, but of course there has to be a formal request to get any of the documented items. But they are available to you. Yesterday, I met with the Police Chief. I was a little concerned that his correspondence, dated January 5 to us on his shortcomings in the overtime lacked the appropriate details. I met with Finance to provide that for us so that we are well-informed. He will be present today or at least that was our request. Also, I would like to note that in your packets, you have C 2014-41 where you have an actual breakdown from Nadine Nakamura and Steve Hunt on the one million two hundred thousand dollars ($1,200,000) referencing Black Pot. Almost eighty-five percent (85%) of that Bill is referencing the balance that the court actually set as a verdict. You do have that information available to you. On that note, Mr. Clerk, let us go to get approval of the minutes. There being no objections, the meeting was called back to order, and proceeded as follows: MINUTES of the following meeting of the Council: January 22, 2014 Special Council Meeting Mr. Rapozo moved to approve the Minutes as circulated, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: Thank you. Next, I want to go to the Special Order of the Day. Vice Chair Chock has asked me for recognition on the floor when we read the first two (2) Bills. Can you read the first Bill? SPECIAL ORDER OF THE DAY: Bill No. 2514 – A BILL FOR AN ORDINANCE AMENDING SECTION 5-2.3, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO THE COUNTY MOTOR VEHICLE WEIGHT TAX COUNCIL MEETING 9 FEBRUARY 12, 2014 Mr. Watanabe: During the last Council Meeting, this Bill had a tie vote, so it is the Special Order of the Day pursuant to Council Rule No. 5(e). Chair Furfaro: Okay. I want to give you the floor, Mr. Chock. Mr. Chock: Thank you, Chair. The reason why I wanted to have some time here is that I know these items have come up to us before by two (2) Councilmembers who are not present today, Councilmember Yukimura and Councilmember Bynum, regarding vehicle weight tax and tipping fees. The previous discussion was really about whether or not we should move towards hearing the proposed budgets before making a decision and I think it might be prudent for us to consider that. We also heard from Mr. Dill that he would need more time to present a plan on how this money would be utilized. Rather than start again, another process when we were facing a potential uphill financial budget, that we defer this Bill until April 23 so that we can review the Administration's submission. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. I think we should vote on it today. I think we should just vote it up or down. The reason we were tied was because Councilmember Yukimura and Councilmember Bynum both disagreed as to what we should do with the Bill and when we should defer it to. Councilmember Yukimura was even in favor of killing the Bill if it meant having to approve it under the terms that Councilmember Bynum wanted. Basically, what you have are the two (2) people who had opposing votes missing, which relatively means that it does not matter that they are not here. We have a 3:2 vote today, so voting it up or down is my recommendation. Chair Furfaro: Mr. Hooser. Mr. Hooser: Chair, I would support deferring this to a later date. I think there is no urgency to kill this today. There are no pressing matters to do so. A lot of times, I appreciate the fact that we conduct ourselves this way where we make decisions out of courtesy to the other members. The primary person who introduced this measure is not available and as a courtesy to him, we should allow him to present his rationale and arguments for the measure. Also, because there is no urgency to kill it today, I would suggest that we support deferring it to another date. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. I agree with Councilmember Kagawa. We have had all of the discussion. It concerns me today that Mr. Dill said he would need more time. This is the problem when you do a bill at the Council level without having the discussion with the Administration and without working with the Administration. We are basically just creating the tax increase or the fee increase because that is "what we want to do" and because "we want generate more revenue, and then we will work out the details later." I think testimony from Ms. Iseri hit that right on the head earlier today for a different matter. I got called or E-mailed yesterday because they were checking the status of our schedules for what I believe was a very important Executive Session meeting next week. I was scheduled to fly out Tuesday night to Philadelphia for a Pop Warner National Meeting, which is very important in my life but when you weigh the gravity of the circumstances, I determined that it was much more important for me to be here than in Philadelphia, so I canceled my flight. That is just how it falls, Mr. Chair. We are a body of seven COUNCIL MEETING 10 FEBRUARY 12, 2014 (7). We are free to make trips and do what we want, understanding that your absence may affect the way your vote rolls. We have had it on. It went through several rounds and at the last round, apparently there was a tie vote. If this was the first effort or if it was the first Council Meeting that it came back for a vote and there were some absences, then I could probably agree with Mr. Hooser. But this has been on the agenda long enough. It is causing a lot of issues in the community as far as increased fees and taxes, so I am prepared to vote today and will not be supporting a deferral. Chair Furfaro: Members, would you mind if I suspend the rules and ask Mr. Dill to come up? Larry, would you please come up? There being no objections, the rules were suspended. LARRY DILL, P.E., County Engineer: Good morning. For the record, Larry Dill, County Engineer. Chair Furfaro: Larry, Mr. Chock's request takes a deferral to April and that is seven (7) weeks from now. What is causing the need for the excess time? Mr. Dill: We touched on this in the discussion last time with the Council. The concerns were brought up from the Councilmembers who are not present today and it was centered on the fact that they wanted to understand how the Department or Division intended to utilize the additional funds that would be generated by the proposed tipping fee increase. From our perspective, we certainly have a few individual things that we can touch on; however, I think basically what they are requesting would amount to a budget presentation for Fiscal Year 2015. Chair Furfaro: Let me get some clarification. You keep referring to "their request," but I am talking to you as if you are a member of the Administration. This is not your Bill. Mr. Dill: Correct. I am sorry; I may have misunderstood your question then. Chair Furfaro: They are implying that they need that much time for some additional work? Mr. Dill: Yes. As I understood it, at that time, it would allow the Administration to finalize its budget proposal and indicate to the Council how we would then plan to utilize those funds. Chair Furfaro: Stay right there. I am going to ask Mr. Hunt if he could come up, please. I do not think when we have a plan that there is a problem for the reintroduction of this Bill even if it is the third time. But to defer something seven (7) weeks for some type of work; I could support a deferral for two (2) weeks until we know what the moving parts here are. I think Mr. Hooser makes a good point at that. But a couple of months, so it falls within the budget cycle— are you folks supporting this Bill? Mr. Hunt: There are two (2) Bills. I guess we are speaking to the vehicle weight first. COUNCIL MEETING 11 FEBRUARY 12, 2014 Chair Furfaro: Okay, the vehicle weight tax and the waste management. Mr. Hunt: Yes, vehicle tax weight. Chair Furfaro: You are supporting it? Mr. Hunt: Just to clarify on the deferral, the impact of the vehicle weight tax would not impact Fiscal Year 2014; it would be a Fiscal Year 2015 issue because it would not be able to be administered until January of 2015. Whether it gets deferred now or whether it gets debated in budget, yes, we are supportive. Yes, we are looking at the current budget and potentially having to move General Fund moneys into the Highway Account based on the current budget, so we support that. Chair Furfaro: Let us debate it in budget. Mr. Hunt: Understood. Chair Furfaro: Could we move to receive this and have this discussion at budget on the weight tax? Mr. Hunt: Yes. Chair Furfaro: Okay. As we deal with the Solid Waste Bill, what is the feeling there? Mr. Hunt: The feeling there is that we recognize current needs that in fact, there is a money bill before you today regarding issues with the liner. There are always needs in Solid Waste. We are even looking at a potential larger request for general funds for Fiscal Year 2015, although getting into next year's budget, but just reviewing what we have especially with some of the aggressive recycling efforts which are going to require funding. Those moneys would be used for a variety of things in Solid Waste. Chair Furfaro: Okay. Larry, this problem that we are having with the liner, the Hypalon rubber or whatever it is; it is something in seven (7) weeks that we will have a clear picture of what the problem is? Mr. Dill: We could speak to the liner issue earlier than that in that particular one, yes. In the overall budget, we will not be ready in the near future or in the next couple of weeks to speak to that. Chair Furfaro: Thank you for that answer. For the second one, I will support the deferral, but for the first one, I will not. We can discuss that in budget. Are there questions for these two (2) gentlemen? Mr. Rapozo: You said you had a money bill on the agenda today? Mr. Hunt: It is not on today. Mr. Rapozo: Okay. I thought maybe there was another agenda that I did not receive because I did not see that one. Thank you. COUNCIL MEETING 12 FEBRUARY 12, 2014 Chair Furfaro: Thank you, gentlemen. Before I call the meeting back to order, since the rules are suspended, is there anyone who wants to give testimony on Bill No. 2514 or Bill No. 2515, Draft 1? If not, I am going to call the meeting back to order. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to receive Bill No. 2514 for the record, seconded by Mr. Kagawa. Chair Furfaro: Further discussion? Mr. Kagawa: I will be voting to kill this Bill again. I do not think it is right for us to reconsider a bill six (6) months after we killed it in the first place. I do not think sentiments changed over six (6) months. I think you should wait at least one (1) year before you look at the same bill. The reason we killed this Bill was that we believed it would put a strain on our local businesses, especially those trucking construction business that operate and are struggling to compete with a lot of the mainland and O`ahu firms that have been competing here on Kauai for jobs. For that reason, I will be voting"yes" to receive. Chair Furfaro: Mr. Hooser. Mr. Hooser: Chair, I will be supporting your desire on this Bill. I see it a little bit differently from my colleague. I do not see it as killing the Bill; I see it as basically deferring the decision to budget. We are going to face some really tough budget decisions and there is no question that we will have to deal with this issue during budget. It is merely a deferral by another name. Thank you, I will be supporting it. Chair Furfaro: I will be supporting the motion made, which is to receive, and then we will make sure it is part of the budget discussion. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I just wanted to recognize that this Bill was introduced in December, a few months ago, and we have had a lot of discussion. We had a lot of opportunities, like I said, to work with the Administration to come up with a plan. I do not think it is very responsible to support funding to a Department that is not ready to present a plan. I guess if we are going wait until after March 15, then we are in budget session. Again, I am not sure what the motivation was to get this done before budget because I think for us to analyze any type of increase in funds, taxes, or fees; we need to see the plan from the Department Heads. We need to see the necessity because I believe this is the last resort when we start raising things. Again, as I stated on first reading because I did not support this Bill on first reading, it was simply that we have not seen a counterproposal of how we are going to be reducing expenses. It is just always the request for funds and more moneys. "A dollar for a dollar"— for every dollar we raise, let us cut a dollar so the benefit to the community is two dollars ($2). That, to me, is a lot more acceptable to the taxpayer rather than just keep being asked to foot the high cost of our government. I will not make comments for Bill No. 2515, Draft 1 because it is the same. I do not believe we should be looking at increasing COUNCIL MEETING 13 FEBRUARY 12, 2014 any fees until we have a better snapshot of the budget, which will be presented on March 14. Thank you. Chair Furfaro: Mr. Chock, do you want the floor? Mr. Chock: I just wanted to echo and agree with Councilmember Rapozo. I think that to see what the needs are first, and then be able to respond to a plan is really important. I am willing to receive today. Thank you. Chair Furfaro: Okay. Mr. Chock is willing to receive. I plan, as Mr. Hooser echoed, to have this discussion during budget time, but I do not have a motion to receive. Mr. Watanabe: We do have a motion and a second. Chair Furfaro: Okay. May I have a roll call on the vote to receive? The motion to receive Bill No. 2514 for the record was then put, and carried by the following vote: FOR RECEIPT: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro Very good. Now we are going to go to Bill No. 2515, Draft 1. Mr. Chock is asking to defer this. I will go along with a deferral on this, but I cannot make the second. As the Chair, I cannot make a second. Go ahead. Bill No. 2515, Draft 1 — A BILL FOR AN ORDINANCE AMENDING SECTION 21-9.2 OF THE KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO INTEGRATED SOLID WASTE MANAGEMENT: Mr. Rapozo moved to receive Bill No. 2515, Draft 1 for the record, seconded by Mr. Kagawa. Chair Furfaro: According to protocol, I need to call the vote on the deferral first. Mr. Watanabe: There has been no motion to defer. Chair Furfaro: I am sorry. Hold on a second. This gentleman made a motion to defer early on. He did not? I am not asking the audience, I am asking the Clerk. Mr. Watanabe: No. Chair Furfaro: He did not? Mr. Watanabe: No. Chair Furfaro: Okay, then we have a motion to receive. COUNCIL MEETING 14 FEBRUARY 12, 2014 Mr. Rapozo: Mr. Chair, the motion to receive really is to have the discussion and the motion to defer can be made at a later time. Chair Furfaro: Thank you for that clarification because on a deferral, there is no further discussion and we had a lot of conversation about this. I have a motion and a second to receive. Is there any discussion? Mr. Kagawa: Again, same Bill six (6) months later. This one is even worse because our fees are already comparable to those on all the other major islands. In fact, this Bill will make us the highest tipping fee island in the State by far. I just think that is a terrible leader to be the County with the highest tipping fee, by far, in the State. It is not like we are doing a better job; we are doing the worse job. We are burying most of our rubbish; we are not using seventy percent (70%) of our waste into anything else like waste to energy. It is not to criticize the Solid Waste Management. It is not an easy job to divert. To divert takes diving into a new area that has never been done by Kaua`i before. I have been on the Staff here as a Legislative Analyst and have worked with Chair Kouchi in trying to do it years back in the 1990's and it is not easy. The other islands are starting to move that way. I hope we are soon, Larry. Mr. Dill and I have been talking to one (1) person who had a proposal come up. Still, coming back to this Bill and being the highest tipping fee County in the State, and we are burying most of our rubbish. We are the leaders in burying the highest percentage of rubbish in the State and to me, that is sad. It is a match made in hell. Chair Furfaro: Any further discussion? Mr. Hooser. Mr. Hooser: As earlier stated, I will be supporting the motion to defer. But since we are in discussion on the motion to receive, I appreciate the opportunity. Again, part of my reasons for a deferral was to give the courtesy to the proponent of this who is not here to defend the measure. I will try to state some of those concerns. Number one, the cost of landfill and solid waste disposal is what it is. It is just those costs are hidden now because we are taking it out of the General Fund out of property taxes. If we have the most inefficient operation of solid waste in the State, if that is the reality and sounds like it is, then we should confront that and put those costs where they belong, in tipping fees. We should take appropriate action to turn this situation around. There is no question that the Administration is responsible for managing solid waste disposal. I do not know where else to put the responsibility for the costs and efficiencies or lack thereof. But to hide these costs in property taxes and say that now we have good tipping fees, I think is certainly not the approach. I think we need to be honest with ourselves as to the costs. Like everybody here, nobody is anxious to raise fees on anything. I agree with some of the previous comments that the Administration should step forward and show us how they are go to be increasing efficiencies and decreasing costs, and we just cannot just keep adding, adding, and adding. I do believe that the appropriate source of funding for landfilling and for solid waste disposal should be in tipping fees. Therefore, this discussion is important to have and I will be supporting a deferral. Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: I apologize because I said I was not going to make anymore comments, but I just wanted to remind the Councilmembers that the vehicle weight tax is time-sensitive. There are only certain times throughout the year that you can raise that. That was what I was told at the last meeting. The COUNCIL MEETING 15 FEBRUARY 12, 2014 tipping fee can be raised any time by ordinance. We are one (1) month and two (2) days away from the budget process being started and that is where we would analyze the expenditures of Solid Waste and try to come up with some reductions in Solid Waste to accommodate the necessity for more revenue. I believe this is premature. I ask that the other comments I stated for Bill No. 2514 be recorded for this Bill as well. Thank you. Chair Furfaro: Mr. Chock. Mr. Chock: So receive or defer; we need to have this discussion and it needs to happen because there are needs. I want to ensure that it does occur so that we can make the proper decision. I am willing to defer it. Mr. Hooser moved to defer Bill No. 2515, Draft 1, seconded by Mr. Chock, and carried by the following vote: FOR DEFERRAL: Chock, Hooser, Kagawa, Furfaro TOTAL— 4*, AGAINST DEFERRAL: Rapozo TOTAL— 1, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Councilmember Kagawa is noted as voting silent but shall be recorded as an affirmative vote for the motion.) Chair Furfaro: Mike, which item did you want to speak on today? Since Mr. Sheehan wants to speak on item C 2014-41, can we go to that item of the Consent Calendar please? CONSENT CALENDAR: C 2014-40 Communication (01/16/2014) from the County Attorney, transmitting for Council consideration, proposed amendments to Ordinance No. B- 2013-753, as amended, relating to the Operating Budget of the County of Kaua`i for the Fiscal Year 2013-2014, by Revising the Amounts Estimated in the General Fund. (Office of the County Attorney, Consultant Services/Special Counsel - $500,000) C 2014-41 Communication (01/22/2014) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B- 2013-754, as amended, relating to the Capital Budget of the County of Kaua`i for the Fiscal Year 2013-2014, by Revising the Amounts Estimated in the Bond Fund — CIP and Special Trust Fund — CIP for Parks and Playgrounds — Hanalei District. (Black Pot Condemnation Balance - $1,259,905) Mr. Rapozo: Mr. Chair? To comply with the Consent Calendar rules, I would make a motion that we take out C 2014-40 and C 2014-41 to be discussed outside of the Consent Calendar. Mr. Rapozo moved to take out C 2014-40 and C 2014-41 out of the Consent Calendar for discussion, seconded by Mr. Kagawa. Chair Furfaro: So noted. Please make the change. COUNCIL MEETING 16 FEBRUARY 12, 2014 Chair Furfaro: Okay. There being no objections, C 2014-40 and C 2014-41 were taken out of the order. Mr. Watanabe: Chair, shall we just take the other two items after we take care of the remaining items in the Consent Calendar? Chair Furfaro: Yes. C 2014-39 Communication (01/06/2014) from the Chief of Police, transmitting for Council consideration, proposed amendments to Ordinance No. B- 2013-753, as amended, relating to the Operating Budget of the County of Kaua`i for the Fiscal Year 2013-2014, by Revising the Amounts Estimated in the General Fund. (Police Department — Chief's Office, Regular Overtime - $500,000): Mr. Kagawa moved to receive C 2014-39 for the record, seconded by Mr. Rapozo, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). C 2014-42 Communication (01/21/2014) from the Mayor, transmitting for Council consideration and confirmation, Mayoral appointees to the various Boards and Commissions for the County of Kaua`i: 1. Building Board of Appeals: • Michael Y. Nagano (Fire Safety) — Term ending 12/31/2014 2. Board of Water Supply: • Laurie K. Ho (At-Large)—Term ending 12/31/2016 3. Cost Control Commission: • Brandon H. Shimokawa (At-Large) — Term ending 12/31/2016 4. Salary Commission: • Camilla C. Matsumoto (At-Large) — Term ending 12/31/2014 Mr. Kagawa moved to receive C 2014-42 for the record, seconded by Mr. Rapozo, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). C 2014-43 Communication (01/21/2014) from the County Engineer, transmitting for Council consideration, a Resolution Establishing Crosswalks Across `Ulu Maika Street And Kalepa Street, Lihu`e District, County Of Kaua`i: Mr. Kagawa moved to receive C 2014-43 for the record, seconded by Mr. Rapozo, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: Thank you. Now back to the two items that were taken out of the Consent Calendar. Thank you for your recommendation, COUNCIL MEETING 17 FEBRUARY 12, 2014 Mr. Rapozo. As we got sorted out, I was planning to go into that area. Members, is there any discussion on these two items? COMMUNICATIONS: C 2014-40 Communication (01/16/2014) from the County Attorney, transmitting for Council consideration, proposed amendments to Ordinance No. B-2013-753, as amended, relating to the Operating Budget of the County of Kaua`i for the Fiscal Year 2013-2014, by Revising the Amounts Estimated in the General Fund. (Office of the County Attorney, Consultant Services/Special Counsel - $500,000) Mr. Rapozo: I have a question for the County Attorney if possible. Chair Furfaro: Okay. May I ask the County Attorney to come up please? There being no objections, the rules were suspended. JENNIFER S. WINN, First Deputy County Attorney: Good morning. First Deputy County Attorney, Jennifer Winn. Mr. Rapozo: Thank you, Jennifer. I had a question as it relates to this request for five hundred thousand dollars ($500,000) because the request memo simply states "for an anticipated shortfall." It was also stated with the Kaua`i Police Department as well. I have requested a breakdown. Are any of these moneys— the five hundred thousand dollars ($500,000) being sought; is it for existing bills that we have not paid yet that may not have been approved by this Council yet? Ms. Winn: I believe we have gotten a bill for the Tokuda matter. That is something that we have not been able to pay. For the Sheehan condemnation, there was also something there. Mr. Rapozo: The question is do we have bills that were billed by Special Counsel attorneys that were billed prior in amounts that exceed what this Council has already approved? Ms. Winn: Yes. For the Tokuda matter, I know we have a shortfall of about five thousand dollars ($5,000). For the Sheehan... actually no... yes, for the Sheehan matter, also for the condemnation trial. Mr. Rapozo: So we have bills from attorneys that were allowed to do work prior to this Council giving approval to fund? Ms. Winn: They have their contracts. They are supposed to let us know when they are running up against that, but the short answer is "yes." Mr. Rapozo: So we can say "no" and they eat the costs? This is a matter that has been bothering us for many, many years. I just want to know what the policy is of the County Attorney's Office, which is public record or COUNCIL MEETING 18 FEBRUARY 12, 2014 public policy. If an attorney decides to continue to do work without being approved by this body, are we liable for those costs? Ms. Winn: I would rather not answer that exactly on the floor. What I can say is that our contract with each of our attorneys specifies and clearly says that the contract is up to a certain amount. Mr. Rapozo: Correct. Ms. Winn: Within the contract, they are supposed to inform us when they are getting close to that amount. Mr. Rapozo: If they do not, then they have breached the contract. Ms. Winn: That is one potential argument. Mr. Rapozo: Okay. That is fine because I am getting tired of approving funds after the fact. I am. I think we have brought this up on numerous occasions. For me, it is difficult because the five hundred thousand dollars ($500,000) in this communication just says "for anticipated shortfall." For me, it is the shortfall from bills that were accumulated and not approved by this body; the County Council. Ms. Winn: I can tell you about the two that I mentioned... Mr. Rapozo: I guess I am confused because we have a Tokuda request here on Executive Session today, so I am assuming that Tokuda is being handled the proper way and that it is in Executive Session. We will deal with that and get a briefing. There is a request in open session for additional funds. I would assume that Tokuda is being handled. I am going to ask this question; out of this five hundred thousand dollars ($500,000), how much of the five hundred thousand dollars ($500,000) will be used for bills that have been created by these Special Counsels without Council approval? Ms. Winn: As far as I am aware, only the Tokuda one. Mr. Rapozo: We have Tokuda today. So you are saying what we approve today at eight thousand dollars ($8,000) would come out of this five hundred thousand dollars ($500,000)? Ms. Winn: Yes. We have the Sheehan matter. We have the money for most of that, I believe, but we still need to come to you because of the extra bills that we have had since the trial. Mr. Rapozo: Okay. I guess you answered my questions. The question and answer was that we allowed the Special Counsel attorneys to work without getting the approval from this body, which in my opinion— I would hope the contract says "subject to availability of funds" or "subject to approval by Council" because I cannot imagine how we would allow any contractor, whether it is a legal contractor, a building contractor, or a park builder— that latitude to give them a contract and "you go spend as much as you want, and then we will just come back and get Council money." I think that is where I stand. It is very difficult for COUNCIL MEETING 19 FEBRUARY 12, 2014 me to approve moneys that we did not approve and we are basically allowing them to dictate to us of how much we are going to pay after the fact. I have a big problem with that. Thank you. Ms. Winn: Although, most of this is not regarding that Tokuda matter, obviously. It is for anticipated shortfall for the rest of the Fiscal Year. Chair Furfaro: Before I recognize Mr. Kagawa, Steve, could you come up? Steve, I think you have a couple of soft memos from me in discussing this with the County Attorney's Office. I think part of the clarification is that we age bills, so we have an aging track, and then we do a cash forecast for bills due. Mr. Hunt: Yes. Chair Furfaro: She just indicated that we have some future bills that we are anticipating, which are part of this money, and we have the aging which are definite bills. Do you review that periodically as the Finance Director or is it solely left up to this legal committee? Mr. Hunt: It is generally left up to the Department. To the extent when the request comes for deficiencies, I take a review at the request. On the merit of what I anticipate or know to be obligations, that is where I get involved. In terms of actually running each Department's fiscal and looking at that, no. Chair Furfaro: Okay. I think you and the County Attorney's Office knows of my concerns about this because as we go forward, we have spikes in revenues two times a year. Mr. Hunt: Correct. Chair Furfaro: We have operational bills and contract bills that come at all parts of the year. If we are talking in terms of cash flow, our cash flow is going to get tighter and tighter. This really needs to be something that I would hope Finance could be involved in with the County Attorney's Office. We should be doing that kind of cash flow forecast for our own cash management. Would you agree with that? Mr. Hunt: I would agree, but one of the challenges with the Attorney's Office is that it is very difficult to predict who is going to sue you, whether we are going to have conflict and whether we will need Special Counsel. Again, a budget is only as good as your estimation of what you anticipate. You cannot anticipate everything. Chair Furfaro: Steve, I am going to disagree with that because a budget is a budget; the cash flow forecast, every thirty (30) days, and so forth is for stuff that we already entered into contract. We also have what they call "due bills." That is forecasted. I am asking for some kind of cash forecast. If we know on a track of how the cash forecast is going, we will know well enough in advance of when we should be asking for special money. In this case, we have to get closer to that. We do. I think those were the comments from my correspondence. I would appreciate it if you could help us there. COUNCIL MEETING 20 FEBRUARY 12, 2014 Mr. Hunt: Part of what we are looking at is seasonality as well. Right now, your budget is flat lined and you are anticipating expending down every month on an equal basis. Chair Furfaro: Sure. Mr. Hunt: Much like the spikes in revenue, sometimes we have front-end procurements, so we see more activity in certain parts of the year. We are trying to accommodate that for seasonality so that any variance will be meaningful as opposed to just flat lined. Chair Furfaro: I can appreciate that, but here is my comeback as a pretty seasoned manager. If you have accountants in there and all they are doing is flat lining the forecast, the patient is dead. Why do I need the guy to forecast if it is flat lined? I am sorry to be so gruff about that, but we need to tighten this up. I would appreciate anything that you can do to work with the County Attorney's Office. Mr. Rapozo, I am going to give you the floor, and then back to Mr. Kagawa. Mr. Rapozo: For Finance, does the contract management responsibility lie within the Department Heads? Mr. Hunt: Yes. Mr. Rapozo: Is there some oversight in the Procurement/Purchasing/Contract's Department? Mr. Hunt: The oversight on the contract management is only with respect to insurance, so making sure that the contract is required insurance and that there is a vetting process to continue to make sure that if polices lapse, we are informing those who are the contract managers in the Department of their obligations to renew those. For the actual management of the contracts, each Department has their own fiscal staff and they are the actual contract managers. Mr. Rapozo: Do you know what the County's policy is as it relates to billings that go over and beyond what the contract allows or what the approval allows? Is there a countywide policy? Is there a Purchasing procurement or Finance policy regarding that? Mr. Hunt: I would have to confer with Ernie Barreira in terms of the procurement issues on that. Mr. Rapozo: It would not be a procurement issue because if the procurement is done and the contract is awarded, it is awarded to a certain amount and the contractor— let us pretend that it is not an attorney. Let us pretend that it is somebody that we hired to do work on the bike path or work on the roads. Is it really proper for them to continue to expend more dollars on a contract that was approved at a fixed amount? Mr. Hunt: Correct. First, it would fall within the Department's discretion. If they have funds available to cover any extension, there would be an amendment of the contract and they may have to forego some of their budgeted items in another area in order to afford that amendment to the contract if it is adding on to the cost. First comes within the Department's discretion to move COUNCIL MEETING 21 FEBRUARY 12, 2014 funds. If they are going outside of the Department, then it comes to me and then comes to you in terms of potentially being a money bill. Mr. Rapozo: Okay. Thank you. Chair Furfaro: I want to add on to that one before I give Mr. Kagawa the floor. Are you telling me that the other Departments have change orders that when the scope changes and so forth, they fill out a change order? Is that practiced in the County Attorney's Office? Mr. Hunt: In the County Attorney's Office... Chair Furfaro: I will send it over in the form of a question. Mr. Hunt: Okay. I would have to think about it. I have seen more in the construction area. Chair Furfaro: I would think. Mr. Hunt: I would think it would be the same process. Chair Furfaro: It could also be the same process and could apply to the County Attorney's Office. Did you want to say something, Al? I am going to send the question over in writing. ALFRED B. CASTILLO, JR., County Attorney: Good morning everybody. Al Castillo, County Attorney. Since this whole discussion is about our Office and how the finances are handled, I think it is appropriate for me to say something. There are two things that I see out of this discussion. The first is the use of Special Counsel and my desire to have a litigation unit, one desire which I have had for a long time so that we could control the costs. In terms of how we deal with Special Counsel; if I am responsible for the contract and the officer in charge, as identified in the contract with Special Counsel, it is clear from my conversations and my relationship with this County Council that we try our best to convey to Special Counsel how important it is to keep us abreast of their invoices. We do that as a matter of course. The balancing test and what is really difficult, which has not come out yet, is the fact that when we have Special Counsel, we have really no control with the court system and the activities of the case. It is really hard for us to say "pull back" when as the case progresses, our Special Counsel are engaged in litigation and we cannot say, "Okay, stop. We have to go back to the Council." We are aware and you are aware of the predicament that we are in all the time. This concern has always been a concern with the way that we handle Special Counsel. If we had a litigation team or a litigation unit, we would be able to control some of this. I just wanted to make it clear. Chair Furfaro: Okay Al, I think the litigation team can come up when we talk about the budget. Mr. Castillo: Yes. Chair Furfaro: I am going to reference both you and Steve of my memorandum of September 6. This actually talks about controlling Special Counsel costs in the way of a cash forecast. These are attorneys that, in fact, write their contract for their services and so forth. I am just saying that should be kind of COUNCIL MEETING 22 FEBRUARY 12, 2014 on a cash forecast basis and that is what I am saying here; current amount spent, outstanding amount remaining on the contract, and amount being requested for other explanations for additional changes. This is what we are still looking for. I will send this over again, but we did not get any responses from you on this. We will do that by correspondence. Mr. Kagawa, you have the floor. Mr. Kagawa: I am just trying to get an idea as to what we were thinking. In the 2012-2013 Budget, we had seven hundred fifty thousand dollars ($750,000) of Special Counsel. I do not know if we came back for additional... I do not believe we did, but I think that was sufficient. In this year's current budget, you asked for five hundred thirty-four thousand two hundred sixty-eight dollars ($534,268), so I guess we used up all of that and now we are asking for another five hundred thousand dollars ($500,000). Why did we ask for less? It is because in the prior year we did not need as much? Did we plan to use more in-house on these cases? Mr. Hunt: Every Department was asked to make some concessions to get us through the Fiscal Year 2014 Budget process. Being that the County Attorney's Office is primarily labor-based, aside from Special Counsel, there are not a whole lot of other operational cuts that could be made. That was the only source that they could make in terms of making the cut. The intent was that they would hopefully not have a lot of litigation in this current year and that they would be able to handle most of it internally and not conflict out. That was the best hope. In terms of prior years, I believe if you go back, I think there probably were requests for additional Special Counsel beyond in that past two fiscals. I believe it has been running closer to the one million dollar ($1,000,000) range for the last couple of years now. Ms. Winn: Can I expand on that? Two (2) years ago, our initial budget was one million dollars ($1,000,000). Last Fiscal Year, it was seven hundred fifty thousand dollars ($750,000). This year it was close to five hundred thousand dollars ($500,000). I guess because of the economy, our budget has been going down, down, and down; however, our actual expenditures, I think, have always been close to— I am not a money person exactly, but I think it has always been over one million dollars ($1,000,000) every year actually. Mr. Kagawa: So basically we have come back with money bills if we are less than one million dollars ($1,000,000)? Ms. Winn: I believe so. Also, we do handle things in-house. For most of the cases where we have the Special Counsel, one of our attorneys in our Office is also handling it. For example, the Tokuda matter; I am actually the attorney for the County and Mr. Fuji is the attorney for Chris Calio. That is the same for the County Auditor, Shibuya, and Sheehan. We are handling certain aspects of the case in-house, but for various reasons we had to get Special Counsel. Mr. Kagawa: Okay. I guess the other thing... and this one kind of... I do not think we are talking about the same thing in that this five hundred thirty-four thousand dollars ($534,000) that we have used up— does that include any of the attorneys' fees that we had to pay for the Tim Bynum case or is that a separate issue? COUNCIL MEETING 23 FEBRUARY 12, 2014 Ms. Winn: That is a separate issue. At this point, our insurance carrier has indicated through a letter that they will defend the County on that case with Reservations of Rights. At this point, the insurance carrier has said that they are handling all of the fees. As you may know, which I am not going to talk about here, we may have issues with our insurance company. Mr. Kagawa: I do not want to drift off too, so we are kind of unsure yet as to our tab for the Bynum lawyers? We are hopeful that the insurance will pay for... Ms. Winn: That may be an issue or that may not be an issue. Mr. Kagawa: Okay. I am just worried about how much more five hundred thousand dollar ($500,000) requests we are going to need. This is my first year on the Council and I think I have been welcomed with a lot of these types of lawsuits in my term. I am kind of concerned that this five hundred thousand dollars ($500,000) may not be enough. Mr. Castillo: Councilmember Kagawa, I think during the budget process when the County Attorney's Office make our budget presentation, some of these issues will be covered so that I can demonstrate what I had already been able to demonstrate in front of the Cost Control Commission. Thank you. Mr. Kagawa: In my last piece, you do not have to answer if it does not relate to the item. Are we doing a final evaluation of the performance of these Special Counsels? They may have a good name in the City and County or State and as we go around, we ask, "How is this attorney?" "He is great. He is the best." When he comes here, he may not have done the job for us. I am just wondering if we grade them on our own instead of relying on other people or other Counties to say whether the attorney is good or not. Mr. Castillo: I can answer that. Mr. Kagawa: Okay. Mr. Castillo: Since I came on board, we have had the opportunity to observe and work with Special Counsel so I can guarantee you that we do rate our Special Counsels that we have utilized in the past in terms of effectiveness, litigation, sensitivity to our County's needs, and being aware of our County. We take all of those into consideration as we move forward. Mr. Kagawa: Okay. Thank you. Mr. Hooser: Good morning. I am not sure if I heard correctly, so I wanted to re-ask the question. It was mentioned that one million dollars ($1,000,000), seven hundred fifty thousand dollars ($750,000), and five hundred thousand dollars ($500,000)— was that budgeted for the last three (3) years or was that over the budget for the last three (3) years? Ms. Winn: For Fiscal Year 2012, I believe our budget was one million dollars ($1,000,000) for Special Counsel. For the last Fiscal Year, I believe it was seven hundred fifty thousand dollars ($750,000) and this year is a tad COUNCIL MEETING 24 FEBRUARY 12, 2014 over five hundred thousand dollars ($500,000). Do not hold me to those exact numbers. Mr. Hooser: No, I understand. Ms. Winn: Right. Mr. Hooser: So we went from one million dollars ($1,000,000) to seven hundred fifty thousand dollars ($750,000) and then to five hundred thousand dollars ($500,000) in the budget? Ms. Winn: Correct. Mr. Hooser: But how much in actual spending in round numbers? Ms. Winn: With carryover from... I am sorry. That might be something that I need to come back to you with. Mr. Hooser: The gross spending from year to year... so every one of those years, the County Attorney's Office had to come back for additional funds? Ms. Winn: Off the top of my head, I cannot answer that. I was looking at our figures that Finance has given us before where it has budget and adjusted budget, and I believe the adjusted budget was higher. I do not know if that was funds from prior years that carried over or if there was money bills for those years. Mr. Hooser: Right. Thank you. The point is that it appears that the Office consistently under-budgets or intentionally under-budgets every year. Ms. Winn: I do not know if it is our Office. Mr. Hooser: Who does the budget for your Office? Ms. Winn: We work with Administration. Mr. Hooser: I guess I can ask them being that the County Attorney is here. You work with the Administration— we are going to talk about this in budget, but it appears that year to year the budget that is approved by the Council under-represents the actual spending by the Office on a consistent basis, whether it has been carryovers for prior years or whether it is more money that gets brought forward. Is that a correct characterization of the situation? Mr. Castillo: Under-budget or over-budget; it has always been a concern and a question mark for me every year. If I am over-budgeted, then I have not spent what was given to me and if I am under-budget, then why did I under-budget? The nature of what we do and in terms of how we engage in Special Counsel— it is really difficult for us to determine how much money we would actually need. When we are given one million two hundred thousand dollars ($1,200,000), one million dollars ($1,000,000), or seven hundred fifty thousand dollars ($750,000), that is what is represented in our budget. I would have liked to COUNCIL MEETING 25 FEBRUARY 12, 2014 have more money budgeted in our budget for this Fiscal Year, but I think from the Administration side, they have to come across here with a balanced budget. But knowing full well that we are engaged in litigation and we do have to go out for Special Counsel, which is a hard calculation, as Steve said. Mr. Hooser: Right. We are probably going to hold most of this for the budget session. I did want to point out though that the budget that we are in now, there was five hundred thousand dollars ($500,000) in your Office and now we have four (4) months left and you are coming in for another five hundred thousand dollars ($500,000). It is like a one hundred percent (100%) increase in your budget. That is a fairly significant error in projections. It is understandable that this Council would have some serious concerns about that given that it is going from five hundred thousand dollars ($500,000) to one million dollars ($1,000,000) and we are not even done. Would you anticipate coming in for additional funds before the end of this budget year besides the five hundred thousand dollars ($500,000)? Ms. Winn: I believe that we are also going to come in for seventy-five thousand dollars ($75,000). Mr. Hooser: So that seventy-five thousand dollars ($75,000) is not part of this five hundred thousand dollars ($500,000)? Ms. Winn: Correct. Mr. Hooser: You have the seventy-five thousand dollars ($75,000) today, right? I am asking about tomorrow, next month, or two (2) months from now. Ms. Winn: I believe as a separate issue, and I am not sure where the money is being transferred over from, we are going to come in for a separate seventy-five thousand dollars ($75,000). Mr. Hooser: Okay. Thank you. Chair Furfaro: Okay. First of all, I would like to wrap this piece up. I want to make sure that we understand too that the number that comes over to us is approved by the Administration. I do not think this Council has ever taken legal money out of the budget and here I am back to this forecast of carryovers and cash flow. Also, let us look at a couple of situations that have occurred over the last three (3) years. We incurred Housing project expansions, cultural pieces with the marae, and had legal consultants working with us on the Kukui`ula bond money. We have had a lot of those acquisitions, which they are more "unusual" than they are "usual" for legal fees. When you come over with one million dollars ($1,000,000) and probably look like we are forecasting to spend it, the next year you come in with seven hundred fifty thousand dollars ($750,000) and it looks like we are going to spend it, and then the next time you in with five hundred thousand dollars ($500,000) and now we are asking to put money in to get us back to the original numbers— Steve, credibility is on the line now. Pretty soon, we are going to stop believing what these real costs are. That is the big problem. We will be talking about many of these things during the budget session. When you do that, I am sending my forecast that I sent to you on September 9. Also, you need to express some of the large variances that we had in those last three (3) years that COUNCIL MEETING 26 FEBRUARY 12, 2014 are not reoccurring, but we needed to do it. That would be my recommendation, so watch for the repeat of my September 9 memo. Mr. Rapozo: This is pertaining to the work of the attorneys that go beyond what they are approved to spend and I do not know if it is Al or Jennifer, but are these attorneys aware in their contract that they are only going to get paid what their approved amount is? Are they aware of this? Is that something that... I am not a lawyer, but I have had attorneys in the past and I worked with a lot of them which I know from my personal case that when I got close to the retainer, I got the call telling me that I was close to the retainer and need to come in with more money or they are just not going to do anymore work. I think that is how most attorneys operate— I believe, anyway. Do we have that understanding with our Special Counsel or are they given the carte blanche to continue to move and not have to come back? I have to believe that they keep track of their records and costs, and knowing that they are coming close to a ceiling, they would notify the County and say, "Hey, we are approaching the contract amount. We need to get more money." How is this done? I am not sure I understand. Ms. Winn: From my experience, I have had attorneys tell me that I have these things coming up and it looks like we are getting close. Not all of them are doing that and part of it may be that perhaps with big firms, the attorneys themselves do not handle the billings. They might have secretaries or others who do that or perhaps it might be because in a month, you may have five (5) depositions which all of a sudden raises far beyond the contract level. Mr. Rapozo But they should know that. Ms. Winn: Perhaps they should. Mr. Rapozo: Our taxpayers should not be penalized because they are just running with it. Are these the same attorneys that do this over and over? I believe they are because we only use a few of the same attorneys for all of these cases, so it is almost like bad behavior repeated and there is no consequence so they just continue to do it as if it is acceptable behavior by the County. I think that is my concern because it puts the County Council in a really, really bad position. Ms. Winn: I cannot answer that exact question of which attorneys it is, but I think quite honestly, the Council would be in a bad position regardless. It is difficult to say, "Stop litigation." If the Plaintiffs attorneys said, "Okay, I need to depose this person, this person, and this person. We are going to do it within this time frame." Is the attorney supposed to say, "No. Let us get on the Council's agenda." It is problematic. Mr. Rapozo: No, I understand exactly, Jennifer. For me, that means we are doing a horrible assessment of the case. Today, there is an agenda item for seventy-five thousand dollars ($75,000) for Syngenta. Is that sufficient? Seventy-five thousand dollars ($75,000) for the Syngenta vs. the County of Kaua`i case? Ms. Winn: I cannot tell you. Mr. Rapozo: I am not an attorney, but I can tell you that just looking at what we went through last week, that is going to be used up in COUNCIL MEETING 27 FEBRUARY 12, 2014 one (1) week or one (1) month. I think when we assess the case... I think that is probably where I am having difficulties. When the case comes to us, it needs to be assessed and say, "This case is a one million dollar ($1,000,000) case." Then we do not have these attorneys running off and spending money that was not approved because there comes to a point where the Council might say, "Let us not do it. Let us go down that road." The public sees this. I really ask these questions for the public to see. The public sees this seventy-five thousand dollars ($75,000). "Okay, that is worth it." Yet in reality, that is not even close to what the case will cost. I am just using this example because it is on the agenda today. I think what the Chair and Mr. Hooser was saying is that when you look at the budget... this was the budget from this existing year. Special Counsel's original budget is seven hundred fifty thousand dollars ($750,000). I believe that is what you folks put in, right? The original budget means what you send over to the Mayor? Is that correct? Al, you said, "We think we need seven hundred fifty thousand dollars ($750,000)." Your adjusted budget is what was really spent for 2013— one million two hundred ninety thousand dollars ($1,290,000). So we are asking for seven hundred fifty thousand dollars ($750,000)... and I understand, Al. It is really that the Mayor said, "Everybody cut your budget." The Police Department is in the same boat; they had to cut their budget. Now, they are back asking for money for operations also. Why come up with an unrealistic budget? It is not a hit on you, Al; it is a hit on the Administration. You cannot just blanket twenty percent (20%), three percent (3%), and eight percent (8%) of all the Departments. You ask for seven hundred fifty thousand dollars ($750,000) and you spend one million two hundred ninety thousand dollars ($1,290,000) and yet when it gets to the Council, it is five hundred thirty-four thousand dollars ($534,000). Even a fifth grade student would be able to look at this and say, "Al, why in the world?" We know the reality and it is not Al; it is the Administration saying, "We have to reduce spending." Whether we reduce today, on March 15, or spent three times that throughout the year, the public does not get to see that at the budget because when they look at the budget, it is just this original amount. I agree. I think we need to be realistic. Where are the adjustments made? Where are the offsets made to accommodate what we really need like litigation, Special Counsel, or whether it is Police overtime or whatever? We are fooling ourselves on the Council and the Administration by saying, "Hey, just send over a balanced budget regardless if we intend to follow it." Mr. Chair, I guess that is the discussion this year and I am hoping that we will have some intense discussions. Chair Furfaro: Mr. Rapozo, the bottom line is that for three (3) years, we have been promised certain reductions each year, incrementally. But it looks like we are consistently spending about the same. I think your answer, and we will wait until budget, is about a litigation team. That comes at budget time; not now. Are there more questions on these items? If not, thank you very much. What is the item number here? Mr. Watanabe: C 2014-40. We need a motion, Chair. Chair Furfaro: Before we make a motion, is there any public comment on this item? Come right up. Mr. Rapozo: We are on C 2014-40. Chair Furfaro: Okay. You want to speak on the next item. I will call the meeting back to order. COUNCIL MEETING 28 FEBRUARY 12, 2014 There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to receive C 2014-40 for the record, seconded by Mr. Chock. Chair Furfaro: Is there any further discussion? Mr. Rapozo. Mr. Rapozo: Mr. Chair, thank you very much. As you can tell, I am pretty frustrated. This is not a new issue. We have been dealing with this for years, actually, I think for those who have been here for the last few years. I appreciate Al saying that they try their best to monitor these contracts and that they have no control over the courts, but I think at some point we have to send a message to these Special Counsel firms. Maybe it starts today by saying "no" to the money and you deal with it. If you agreed to go out and work... and I do not buy this, "Maybe they do not do their own billings." It does not really matter who does the billings because somebody is responsible to stay in communication with the County and that has not been done. Whether or not this County will agree or disagree on a specific request, that is a case-by-case basis. I just do not like having my back against the wall and being asked to approve moneys because we owe money. I do not believe that is how the intention of this process is supposed to work. They come to us with an estimate and it gets approved. As they start nearing that estimate, they need to come back and find out where we are at in the case. "Where are we at? What are the chances? Have there been any important developments?" That has not been happening. Really, coming up for these kinds of blanket money with no real explanation of what it is for. I know the discussion on the litigation team surfaced today. Mr. Chair, you know but the other three (3) do not know because they were not here, but I think it was three (3) years ago that we were told, like you said, assured some reductions and in fact, "We are going to take more of these cases in-house, have a training program and needed funding for training. We are going to have our attorneys train with seasoned veteran lawyers so that we can start to take internal controls of our litigation." That has not been done. Yes, we do handle litigation locally, but for the majority of the big cases, we are out hiring a lot of Special Counsel. I am troubled by this amount. I am planning to request a detailed analysis and something short of an audit of the billings. I want to see what we are paying for and how much we are paying for these attorneys, Special Counsel, and things that we may be able to do in-house. Is it "set it and forget it?" Is it just set the Special Counsels on their way and there is no oversight, and then we get a bill for hundreds of thousands of dollars that we have to be forced to approve? That is why I am real interested in seeing how our contracts are drafted. Is there any reference or any impression to the Special Counsel/contractor that it is okay for them to continue working and then we will pay, no matter what the amount is? I am troubled by that and I want to make sure that we protect ourselves in that way. I will have some time before the vote for the five hundred thousand dollars ($500,000) is made, but I definitely have some soul searching to do and decide whether today is the day to say "no" and stop spoiling the kid because every time we do this, it becomes easier for the Special Counsels to take advantage of the County. Thank you. Chair Furfaro: Okay. Is there anymore dialogue? I just want to say that I will be sending over my September memorandum again. As money gets tighter, all Departments have to realize that cash management is extremely important to us. I appreciate the fact that about six (6) months ago, we had our Treasurer come over and tell us exactly that. We are not the guys who COUNCIL MEETING 29 FEBRUARY 12, 2014 write the checks, but I think he needs to go revisit with everybody and all those Departments. Do you know which gentlemen I am talking about, Steve? Dave has a real handle on this and cash management is going to be critical for us. Maybe he should kind of review that process with them. Also, Mr. Rapozo has talked in terms of a contract review. If there is anticipation when we take depositions and so forth, there is a forecasted cost that goes along with that, knowing that will expand the contract. We also have to hold their feet to the fire and holding their feet to the fire, as Jennifer said it, all of these firms do not all account for their billing the same way. Some of them have attorneys working on it themselves and some of them send it to a billings department. We need to review that. The motion to receive C 2014-40 for the record was then put, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: Can we go to the next item? C 2014-41 Communication (01/22/2014) from the Director of Finance, transmitting for Council consideration, proposed amendments to Ordinance No. B- 2013-754, as amended, relating to the Capital Budget of the County of Kaua`i for the Fiscal Year 2013-2014, by Revising the Amounts Estimated in the Bond Fund — CIP and Special Trust Fund — CIP for Parks and Playgrounds — Hanalei District. (Black Pot Condemnation Balance - $1,259,905) Mr. Watanabe: We are back to C 2014-41. This is the transmittal of the Bill regarding Black Pot Condemnation. Mr. Rapozo moved to receive C 2014-41 for the record, seconded by Mr. Chock. Chair Furfaro: Did you want to speak? Please come up. There being no objections, the rules were suspended. MICHAEL SHEEHAN: Michael Sheehan. Thank you very much for the opportunity to comment on this Bill. Apropos of what Councilmember Rapozo and yourself of your concerns about the cost of litigation; I think you will remember that when we were down at the old Hale Kaua`i building, my attorney Richard Wilson and I came and spoke and asked you not to approve the County Attorney's request for seventy-five thousand dollars ($75,000) for outside Legal Counsel for this matter before you now. I commented and said that it is going to cost at least two hundred fifty thousand dollars ($250,000). As I understand it, you guys were billed about five hundred thousand dollars ($500,000) by outside Counsel. My attorney cost me two hundred fifty thousand dollars ($250,000). This is absolutely asinine. Pardon my French, but we need to get a little bit better. As I suggested, the Supreme Court has an arm called the "Center for Alternative Dispute Resolution." No charge. All there has to be is a government request of some assistance in resolving some of these matters. This may be the answer. I want to ask you guys to seriously consider not hiring big, outside law firms. I can share with you that I saw some of the nonsense that my attorney had to respond back to by these big Honolulu law offices and I was totally unimpressed. As a taxpayer, I was really irritated because I pay taxes too and I also paid attorneys. We need to put this thing together. This whole process of the Black Pot expansion and the associated costs were totally unnecessary. If you and your (inaudible) body had said, "We are just going to hire a mediator. Mike, you get a mediator. If the guys COUNCIL MEETING 30 FEBRUARY 12, 2014 agree, then that is it. It is done. Let us move it on forward." My former wife and I were very happy to give, if the County Administration had met us halfway, an additional seven (7) acres for free. We were not taken up on that offer and instead, we had the Police Chief, Special Weapons and Tactics (SWAT) Team, and K-9 dogs come down and seize the property, which is a whole other issue. I was totally unimpressed. I thought I was dealing with some little kids in school and that is not you guys, but you guys have to put some reins on the Administration and the County Attorney's Office. They are like kids in a candy store. You and I have to follow our budget. I only have "x" number of dollars in the bank and I cannot just keep running around. I am going to ask you to please contact the Center for Alternative Dispute Resolution and let us put an end to this nonsense and perhaps utilize them in the future also instead of hiring outside Legal Counsel. That is just my thought and I thank you all very much for the opportunity to comment. Chair Furfaro: Thank you, Mike. We have a question for you. Mr. Rapozo: Mike, thank you for being here. How much was the attorney fees again? Mr. Sheehan: I think you guys spent at least five hundred thousand dollars ($500,000) with Ashford and Wriston, right? You were only asked to appropriate seventy-five thousand dollars ($75,000) as I recall. I know how much I paid my attorney. Mr. Rapozo: What did you say yours was again? Mr. Sheehan: Two hundred fifty thousand dollars ($250,000). I get a discount because this has been a long, running exercise. Mr. Rapozo: This case is over? Mr. Sheehan: No. Mr. Rapozo: It is not over? Mr. Sheehan: No, far from over. The County Attorney's have attempted to acquire, through a very deceptive process, a parcel of land that was Torrens Land Court that could not be assimilated into the regular system as part of this exercise. That resulted in a theft complaint made by me and we have been carrying over for this long, so we need to get a mediator. Mr. Rapozo: Okay. As far as the condemnation case, has that been resolved? Mr. Sheehan: No. Mr. Rapozo: Is that what you are saying? It has not been resolved yet? Mr. Sheehan: No. Mr. Rapozo: Okay. I thought we resolved that. COUNCIL MEETING 31 FEBRUARY 12, 2014 Mr. Sheehan: No. Mr. Rapozo: Okay. Thank you. Mr. Sheehan: You are welcome. Chair Furfaro: Are there any more testimony on this item? If not, I will call this meeting back to order. Members? There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Kagawa: I would like to put in a personal request or maybe a future agenda item of the County Attorney's opinion on working with the Center for Alternative Dispute Resolution. I think if it works out the way Mr. Sheehan describes it, I think it would be a great alternative for us to resolve a lot of our issues, which gets settled anyway, if we can settle it without the high attorney fees... not high—enormous attorneys' fees that we are using. Thank you. Chair Furfaro: I will be glad to follow-up with you on a discussion on that point. Are there other members? If not, let us move on. The motion to receive C 2014-41 for the record was then put, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). There being no objections, C 2014-44 was taken out of the order. C 2014-44 Communication (01/31/2014) from the Fire Chief, requesting Council approval to receive and expend a Staffing for Adequate Fire and Emergency Response (SAFER) grant from the United States Department of Homeland Security in the amount of $944,700, to cover a two (2) year period of salary costs for the hiring of three (3) firefighters to staff the Lihu`e Engine Company and three (3) firefighters for the Lihu`e Rescue Company. These additional positions will help to minimize the margin of compromise, improve the initial fire alarm response, mitigate safety issues associated with limited fire ground personnel, protect the island's critical infrastructure, and bring staffing into compliance with the National Fire Protection Association (NFPA) 1710 standards: Mr. Kagawa moved to approve C 2014-44, seconded by Mr. Rapozo. Chair Furfaro: Chief, I met separately with you on getting my portion of the information. Is there anything that you want to open with? If not, I am going to open with the Councilmembers. There being no objections, the rules were suspended. ROBERT F. WESTERMAN, Fire Chief: For the record, Robert Westerman, Fire Chief for the County of Kaua`i. Just for a little bit of introduction, you all know the Deputy and hopefully you know Firefighter III Vaughan. He is the head of our Grants Committee and we can blame this on him. He has done some tremendous work with our committee. As you know, we applied for this several times. It has been in our Strategic Plan to provide this service out of Lihu`e and to improve the safety for our Firefighters out of Lihu`e. We were lucky enough now that this grant came about and we were able to bring those positions on with the grant. We are open to any questions that you may have. COUNCIL MEETING 32 FEBRUARY 12, 2014 Chair Furfaro: Chief, I am going to start with a few questions that you can reconfirm for me. As far as the Lihu`e station goes, the big plus for this is the fact that this will assist us in getting a full assigned group of four (4) people. Basically what we have is a Driver, Captain, Apparatus Operator, and Fireman in Lihu`e working as a pair, so it is a crew of four (4). In the long run, that will help us with insurance premiums? Mr. Westerman: Eventually, yes. You are right. We have two (2) companies in Lihu`e. It is the only station that we have that has two (2) companies. There are four (4) assigned to each with a daily staffing of three (3). In the past, with our call loads and our rescue quantities the way they were, it was okay. Now they are responding so much and especially the rescue crew responding out of the station and leaving the engine company behind with a minimum of three (3) where a minimum standard for the engine companies are four (4). We try to maintain that at least seventy percent (70%) of the time in order to comply with the NFPA standards. Currently, that engine company responds... or its daily staffing is less than thirty percent (30%) through the year or they are fully staffed. This then becomes a safety issue. The international Insurance Service Organization (ISO) and in Hawai`i, it is called the Hawai`i Insurance Bureau (HIB)— when they look at each of the engine companies, they look at them as a whole, but then again, they look at them as an individual. An example is that when we brought Kaiakea on, there was a community of about eight thousand (8,000) whose insurance went down because we were able to change the insurance rating in the Kawaihau District by adding the second station. They look at daily staffing, the response, and the averages that we do that. Even though each district is separate and the County is a whole, and we can share the resources, each district, in this case Lihu`e, will then have the engine company as a full responding engine companying. Separate the rescue out of your mind and move rescue completely away— let us say we moved it out of a whole other station; the engine company is what they are looking at for the insurance rate. Yes, this improvement will help. Chair Furfaro: Okay. The way I understand this amount for the two (2) year period— we will get about four hundred seventy-two thousand dollars ($472,000) each year for two (2) years, fully covered through this grant? Mr. Westerman: Yes. Chair Furfaro: Our costs associated after the grant expires would be the four hundred seventy-two thousand dollars ($472,000), but that will keep us at that staffing level. Plus whatever negotiated increases there are and any kind of agreements or pension contributions; that number could grow a little bit, but it is around four hundred seventy-two thousand dollars ($472,000). Mr. Westerman: Yes and it will go up. One thing that is not in any of the detail that you have is, as you know, SAFER kind of morphs every year and it depends on really what the needs are. Nationally, they put in about three hundred sixty million dollars ($360,000,000) I think in this year. The first one to get the award this year of course was Detroit. They got twenty-four million dollars ($24,000,000) out of the SAFER grant to help them staff their one hundred fifty (150) firefighters that they laid-off. Chair Furfaro: Because they had no money. COUNCIL MEETING 33 FEBRUARY 12, 2014 Mr. Westerman: Right. What this grant added in this year was out of the thirty-one (31) people that we currently have on our list when we go to do the hiring, if anyone of them is a veteran and we hire them, it gives us a third year of full salary for those individuals. Again, it is part of Rehiring Act because of the Gulf Wars as they wind down. Chair Furfaro: Okay. Are there any questions for the Chief and his Staff? Go ahead, Mr. Chock. Mr. Chock: Thank you and congratulations on the good work on receiving this grant. I really appreciate the efforts that you folks are doing in order to get us up to standards. I have a few questions. Is there a specific amount that we might be saving on with the additional personnel? Mr. Westerman: The insurance rating? Mr. Chock: Yes. Do you have a figure? Mr. Westerman: No, I do not have a figure. Again, the way it works is that each district— actually, I have the numbers if you wanted to look at them. They are like 6/9 and 5/9. The 6 and the 5 are a number that the insurance companies use to relate what your premium is going to be. The first number in each of the ratings is if you are within a certain distance of the fire station. The next number is if you are in that district, but you are a certain distance farther away from the fire station. It is a number that they use to calculate your rating. Again, the last ones we moved. Kapa'a and Kawaihau got down to a 5 and people contacted us and said, "Thank you, my insurance went down." I did not ask how much the insurance went down. It might have been individually for the people, around two hundred dollars ($200) to three hundred dollars ($300) or even more depending on the property and what their insurance rate is. I do not have an exact number. Mr. Chock: Thank you. I can kind of remember being in Lihu`e on the rescue engine and being with three (3) people. For instance, what happens if there is a rescue and you have a structure fire? You respond to that structure fire with three (3) people on your engine. You need a certain amount of people in order to do a rescue. Say there is a baby in the fire. Now you have to wait until you get coverage from another fire station or another engine in order to actually go in and do a rescue and save someone. This in an essence will alleviate that safety situation and allow us to do and respond appropriately. Is that correct? Mr. Westerman: That is correct. It is basically the four (4) minimum and even that is kind of scary for us, but the idea is to have two (2) to be able to enter into the building. Then two (2) is what we call "a Rapid Intervention Team (RIT)" which is a rescue team. The next two (2) firefighters are on the scene at any time to come to the RIT team until we amass the people to do all of the functions that are required in a fire, but you are exactly right. Up until then, you risk not only the life that might be in jeopardy, but the life of the firefighters with nobody to respond if something happens to them as they go in. Mr. Chock: Thank you. I have one last question. Chair Furfaro: Go right ahead. COUNCIL MEETING 34 FEBRUARY 12, 2014 Mr. Chock: I know in all fairness, we had the same discussion with the Police Department one (1) month ago about how it is that we are going to continue to fund these... when we get the money through a great grant, how do we continue to staff it or fund the positions? I think it is a valid question. You can see by the discussion that we had this morning just on the budget items. We want to become more stringent and be more proactive and preventive on how it is that we are approaching these needs. Is there anything that you might be able to share in terms of how you see these positions funded in the future? Mr. Westerman: Well, of course the basic one if all else fails is that we are funding it out of general funds. We try and do as much savings as we can in general funds. Again, we are not revenue generators, so our savings for us is zeros on the back end, not zeros on the front end. We are talking about lawsuits. Our idea is to reduce that risk or potential by staffing fully and having the right amount of staff... even that and our Ocean Safety. As you know, we are going through the tort liability with that and how that issue relates to more lawsuits than it does to really just doing our job on a daily basis. The other opportunities that arise is that SAFER is actually well-written in that if we move forward and we decide that we have continuing issues with trying to fund, we can apply for the SAFER grant again and ask for additional funds. If you remember, the Kaiakea Station was originally staffed by SAFER; that was not originally general funds. We went out and sought the SAFER grant to staff that. To staff and pay for those fifteen (15) to keep them on as continuous employment or for this group, in the year after next, going and applying for additional SAFER funds. That is another opportunity. Mr. Chock: I appreciate that response. Thank you very much. Chair Furfaro: Are there other questions for the Chief? If you could for me, I did this with my own worksheet yesterday with Police, but pretty much sixty percent (60%) of the year is gone and they have actually spent about sixty-one percent (61%) of their budget. They are just a little over budget. Could you go through an exercise like that for us when you get to a budget presentation? If you have it now, that would be great. Mr. Westerman: Every two (2) weeks, my staff provides me with where we are with expenditures of every single line item in the budget. Chair Furfaro: That is the way it should be after they run the payroll and all of the costs associated with it. Mr. Westerman: It takes a little bit of extra work on their part to get and seek this stuff out of the computer. My latest one is at fifty percent (50%) of the budget. I also report this to my Commission every month, so if you get a copy of the Fire Commission's report, it is in there. Chair Furfaro: You do that monthly? Mr. Westerman: I do that monthly with the Commission, yes. For example, if I just looked at "Administrative Costs" today in my "Administrative Bureau" at fifty percent (50%) of the year, I was at forty-nine point two five percent (49.25%) expended of my budget. Again, like Steve Hunt addressed, the seasonality of expenditures and trying to flat line the budget is very difficult because some of COUNCIL MEETING 35 FEBRUARY 12, 2014 the expenditure line items... we buy all of our equipment and everything up front right away, so it kinds of skews your figures a little bit. Salaries are kind of pretty steady with the exception for us, like Police, is overtime. You do not know when that excess overtime is going to hit your budget. You might have an event that takes a significant amount of your overtime money, and then you are kind of scrambling and trying to balance out of rest of it for the end of the year. Chair Furfaro: I do not want to drift too far because the salaries are not part of today's agenda, but we would like to have that prepared for the most current. So you have got six (6) months actual against six (6) months budgeted and you are pretty darn close? Mr. Westerman: Yes. Chair Furfaro: Good. Mr. Kagawa. Mr. Kagawa: Thank you, Chair. First, I would like to thank you and congratulate you for getting this grant. Is this the first time that you have gotten this grant from SAFER? KILIPAKI VAUGHAN, Firefighter Inspector/Firefighter III: Council Chair and Councilmembers, for the record, Kilipaki Vaughan, Fire Inspector/ Firefighter III. I want to also acknowledge Firefighter Devin Medeiros who helped me write this particular grant. Since SAFER grant's inception in 2003, we have applied since 2006. During those years, seven (7) out of eight (8) times we have gotten two (2) awards. There has been three (3) awards in the State of Hawai`i alone and we are the only ones to accept it twice, possibly, coming today. Back in 2008, we had a project cost of four million one hundred thousand dollars ($4,100,000) and it was on a sliding scale cost share of ninety percent (90%), eighty percent (80%), fifty percent (50%), thirty percent (30%), and zero percent (0%) over a five (5) year period of performance. The total benefit to KFD was one million six hundred thousand dollars ($1,600,000). This SAFER has changed over the years because of the demand on the economy and budget sequestration at the congressional level. They changed it to the last two (2) years as zero cost share and this nine hundred forty-four thousand dollars ($944,000) addresses a two (2) year period of performance at zero cost share. It is primarily for hiring on the all-career side and recruiting on the volunteer congregation side. Mr. Kagawa: Thank you. The one in 2008 was for other things besides salaries? Mr. Vaughan: The one in 2008 was for the fifteen (15) firefighters for Kaiakea Fire Station. Mr. Kagawa: Okay. Mr. Vaughan: That was all for salaries and also incorporates fringe benefits. Mr. Kagawa: Okay. My next question is how many people are expected to apply for this next round? I know that it has become a coveted position. For me, I am a cheerleader for our Kaua`i youth who want to make a career out of it. I get disappointed when I hear that mainland guys got them over COUNCIL MEETING 36 FEBRUARY 12, 2014 our local boys, but sometimes it is the way the game goes I guess. Anyway, how many people do we expect to be applying for these coveted jobs? Mr. Westerman: We already have a list of thirty (30) out of an application process. Because of the previous 2008 grant, every year we were required to maintain a list of eligible people because we would have to rehire within ninety (90) days if we got below a certain level. We have always maintained the list and have gone out... this list is about one year and a half (1.5) old. If I remember right, the initial application amount was about two hundred fifty (250) people and through the process, we are down to thirty (30) people who are eligible now to interview for these positions. Mr. Kagawa: When these grants are approved, will it not be opened up again? We will just stick to the list of thirty (30)? Mr. Westerman: Yes. It is a fairly young list; it is only about one (1) year old. Mr. Kagawa: About one (1) year old? Mr. Westerman: Yes. Mr. Kagawa: Well, I do not know if I am really happy with that response, but it is what it is. The other thing for the top thirty (30), are they based on how they scored on a written test? The intellectual test? Mr. Westerman: That is just the first of many. Mr. Kagawa: Yes, I know. I understand, but the written one carries the weight in getting to the final interview? Mr. Westerman: Yes. Mr. Kagawa: It is still the same way? Mr. Westerman: Yes. Mr. Kagawa: Is that how it is done statewide? Mr. Westerman: I could not tell you how the other islands do it. I am assuming that it is based on the Civil-Service System. It is not something that we have adjustments to. Mr. Kagawa: I guess for another meeting, maybe what I would like to do is get this on as another agenda item because I personally do not believe a written intellectual test makes a candidate better than another candidate... to a certain extent, but when the weight is so heavily on that, I do not think it is proper. Thank you. Chair Furfaro: We can probably do that and have somebody from Human Resources (HR) here as well. Are there anymore questions for the Chief? If not, I am going to see if there is any public testimony, and then we are going to have to take a caption break. Is there anyone in the audience that wishes to speak on this item? Seeing nobody, I will call this meeting back to order. COUNCIL MEETING 37 FEBRUARY 12, 2014 There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Is there any narrative from any of the members? If not, Chief, excellent job to you and your staff in pursuing these types of funds for us as we incrementally expand our services at a level that we can carry, but we need to prepare for this in the next couple of years. I also want to make sure that we will be revisiting the grant application process during budget. I thought I had a very successful meeting with Mr. Hunt and we will try to get that all ironed out. Can I get a roll call vote please? The motion to approve C 2014-44 was then put, and carried by the following vote: FOR APPROVAL: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: On that note, we are going to take a ten (10) minute caption break. There being no objections, the meeting recessed at 11:39 a.m. The meeting reconvened at 11:53 a.m., and proceeded as follows: Chair Furfaro: We are back from our caption break. Mr. Clerk, can you take us to the next item? CLAIM: C 2014-46 Communication (01/29/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kaua`i by Nelly Bautista, for a medical bill, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Rapozo moved to refer C 2014-46 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). COMMITTEE REPORTS: ENVIRONMENTAL SERVICES / PUBLIC SAFETY/ COMMUNITY ASSISTANCE COMMITTEE: A report (No. CR-EPC 2014-03) submitted by the Environmental Services / Public Safety / Community Assistance Committee, recommending that the following be received for the record: "EPC 2014-01 Communication (01/21/2014) from Council Chair Furfaro, requesting the presence of the County Engineer, to provide an update on the status of the Administration's efforts to address the odiferous compounds coming from the Coco Palms Sewage Pump Station at the Wailua Wastewater facility (near the entrance of the Wailua Houselots)," COUNCIL MEETING 38 FEBRUARY 12, 2014 Mr. Rapozo moved for approval of the report, seconded by Mr. Kagawa, and carried by a 5:0:2 vote (Mr. Bynum and Ms. Yukimura were excused). PUBLIC WORKS / PARKS & RECREATION COMMITTEE: A report (No. CR-PWPR 2014-01) submitted by the Public Works / Parks & Recreation Committee, recommending that the following be received for the record: "PWPR 2014-01 Communication (01/17/2014) from Committee Chair Kagawa, requesting the presence of the County Engineer, to provide an update on the Salt Pond Beach Park. This briefing shall include, but not be limited to, an update on the facilities (i.e., restrooms, cooking grills, septic system(s), etc.), and the status of the illegal campers and homeless persons at the park," Mr. Rapozo moved for approval of the report, seconded by Mr. Chock. Chair Furfaro: Mr. Kagawa, did you want to say something? Mr. Kagawa: Yes, Chair. Thank you. I just wanted to bring up that I saw another... not article... but on the Channel 2 KHON News, there was a gentleman in O`ahu that thought he had fire ants in his yard so he put that popsicle stick out, recovered it, and the Department of Agriculture looked at it, and it was not fire ants. Again, it is very important at Salt Pond that they do it because even though that man's ants were not fire ants, it did bite him and he showed the welts on his arm. The smaller red ants are a different type of fire ants, but we really want to see if that Salt Pond "red colored ants" are the fire ants that are being talked about because they said those leave a really nasty sting and we do not want them spreading around here. Hopefully, Lenny guys got the message. Chair Furfaro: Yesterday, I met with the Invasive Species Council and you all should have this map in your mailboxes now. They, in fact, confirmed that the only... Jenelle, you were with me, but the only fire ant that they have confirmed on Kaua`i... and all of those dots represent an investigation by them, but the only one is on the North Shore. The ant that they discovered out at Salt Pond and Kekaha was a yellow tropical fire ant. It is not as invasive as the fire ant. There is more to come, but you have this map and background coming to you folks from yesterday's meeting. Mr. Kagawa: Thank you. Chair Furfaro: Let us hope that is where we are at. We still have to take care of that colony. The motion to approve CR-PWPR 2014-01 was then put, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: Are we going into Resolutions next? Mr. Watanabe: Yes, Chair. I understand that the County Engineer will be here after the public hearings, so we will skip Resolution No. 2014-01 and move onto Resolution No. 2014-02. COUNCIL MEETING 39 FEBRUARY 12, 2014 RESOLUTIONS: Resolution No. 2014-02 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BUILDING BOARD OF APPEALS (Michael Y. Nagano— Fire Safety): Mr. Kagawa moved for adoption of Resolution No. 2014-02, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Resolution No. 2014-03 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF WATER SUPPLY (Laurie K Ho —At-Large): Mr. Chock moved for adoption of Resolution No. 2014-03, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Resolution No. 2014-04 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE COST CONTROL COMMISSION (Brandon H. Shimokawa — At-Large): Mr. Rapozo moved to defer Resolution No. 2014-04 pending interview, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Resolution No. 2014-05 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE SALARY COMMISSION (Camilla C. Matsumoto — At-Large): Mr. Chock moved for adoption of Resolution No. 2014-05, seconded by Mr. Rapozo, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Watanabe: I believe Resolution No. 2014-06 is awaiting the Engineer also, so we will go to Bills for First Reading. BILLS FOR FIRST READING: Proposed Draft Bill (No. 2530) —A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (Police Department — Chief's Office, Regular Overtime - $500,000): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2530 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Rapozo. COUNCIL MEETING 40 FEBRUARY 12, 2014 Chair Furfaro: I thought the Chief was going to be here, but since it is only for first reading, do we need him to come back? • Mr. Watanabe: No. Chair Furfaro: Okay. I do want to let you guys know that I am going to send him a little note because he is at sixty-one percent (61%) of his budget now that should be allocation. It looks to me like we may have been a little bit too aggressive in this reduction of overtime. I will keep you guys posted on what I send over to him. • Mr. Rapozo: Unlike the request from the County Attorney, this one is for a specific purpose. It is overtime. We were overly aggressive, as we were with the County Attorney's Office as well. I think it is a lesson for the Administration as they have their budget hearings with the Department Heads that the budget is not an "all show, no go" process, not so that we can come out here smelling like roses, only to have to deal with the negative impacts six (6) months down the road. I am hoping that they understand that. This one is specific to overtime and as you know, this year the Police Department was tasked with some unanticipated requirements for overtime. You have to understand when you work with a large class as they did, the recruits, with the field training officers; a lot of overtime comes with it. It is a price we pay up front to fill up the puka going down the road and the Return On Investment (ROI) will be at a later time. I will be supporting this one today. Thank you. Chair Furfaro: Before we call for a vote, I will ask Steve to come up for a minute. Just in general, yesterday, looking through the last budget packet, I found about one hundred forty-seven thousand dollars ($147,000) that could be coming from one (1) Department to cover Police Overtime. What is the procedure on that kind of a transfer? There being no objections, the rules were suspended. Mr. Hunt: If it is between two (2) departments, the procedure would be to prepare a transfer request and because it is between two (2) different departments, it would have to come to Council for approval. If it is within the Department, then it could be done with my approval and the Mayor's approval. Chair Furfaro: Okay. I knew that within the Department, but I wanted to find out if it looks like we have savings somewhere else and maybe we are only asking for three hundred fifty thousand dollars ($350,000) instead of five hundred thousand dollars ($500,000). Thank you for that clarification. Scott, you got the word that we are not going to see the Chief today. I will call the meeting back to order. Are there any other comments? If not, can I have a roll call vote? There being no objections, the meeting was called back to order, and proceeded as follows: The motion for passage of Proposed Draft Bill No. 2530 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / COUNCIL MEETING 41 FEBRUARY 12, 2014 Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL– 5, AGAINST PASSAGE: None TOTAL– 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL– 2, RECUSED & NOT VOTING: None TOTAL– 0. Proposed Draft Bill (No. 2531) –A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-753, AS AMENDED, RELATING TO THE OPERATING BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE GENERAL FUND (Office of the County Attorney, Consultant Services/Special Counsel - $500,000): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2531 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Chock. Chair Furfaro: I think we pretty much beat this one to a point that we all understand that there are some moving parts we have yet to do on forecasting, cash management, and working with our contracted attorneys. Go ahead, Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. Again, this is part of the comments that I stated earlier and I am not going to repeat a lot of what I said, but I will not support this. It is really a symbolic "no" vote. It is a message. We are in this situation here and a lot of it is because of the required cuts by the Administration to these Departments. To some extent, what I would consider poor management of contracts at the County Attorney's Office because we are in this position that we owe money to attorneys that have not been approved by this body. I have a serious problem with that. The other thing is that throughout all of the County Departments in the budget, I would encourage us to at some point put our foot down and say, "Hey, enough is enough. You go have the Mayor and his Administrative team to go look throughout the County and the other Departments and move funds to the County Attorney's Office— existing money, not new money." Everytime we do this... everytime we pass a money bill and we start putting money back in these troubled Departments' budget, there is no incentive for the Administration to make any change because they will come here, get the votes, and business as usual. If the Mayor is forced to sit down with this Department Heads and say, "I need one hundred thosuand dollars ($100,000) from your Department and eighty thousand dollars ($80,000). Go find it so we can pay our lawyer bills." I think at that point, the Mayor might come in and tell the County Attorney, "Please assess your contracts monthly. If we are approaching the caution zone, let us know." That is not happening because as you and I both know, Mr. Chair, this is not a onetime situation. What is happening here is pretty much the norm. Until this body says "no"— we always talk about how... this is how we do it; we say "no." We say, "No, Mr. County Attorney. Sorry, you go get the money somewhere else." Then let them go do that exercise because otherwise it will happen again and again. We will grumble, complain and voice our concerns at this table, and tomorrow business as usual. I am just trying to say "let us take a stand" and say, "You be accountable to your Department. I am not paying any more bills that we did not COUNCIL MEETING 42 FEBRUARY 12, 2014 authorize and you take it up with the attorneys that you hired because I am over it." Thank you. Chair Furfaro: Okay. Besides the cash management that I have asked for and so forth; Staff, please note I want to resend my September 9 memorandum and note "second request" on it with today's date. Mr. Hooser: I will be supporting the first reading vote, but similarly to Councilmember Rapozo, I also have very deep concerns. My concerns go to what is essentially a lack of confidence that I have in the County Attorney's Office and the leadership and management of that Office. Every week, we are dealing with issues dealing with the County Attorney and every week it seems like I have decreasing confidence in the management and leadership of that Office. I understand that we have to fund ongoing stuff like litigation, but I would encourage the Administration to look very closely at the Office and make whatever choices and decisions that they can to increase the level of confidence so that as we move forward, we can all feel better about the management of these legal issues. Thank you, Chair. Chair Furfaro: Mr. Chock. Mr. Chock: Thank you, Chair. I concur with the last two (2) Councilmembers in general. In my short time here, what I have seen is just some bleeds here that we will need to cut short. It is a black hole and we need some help to be more proactive than reactive. I am not quite at the place to cut people's legs out from under them. I am willing to move forward to public hearing, but it is good business practice. We need some plans upfront and we need to be able to project better. I understand that every Department is different, especially the Attorney's Office, but even the Fire Department came to us today with a grant that they are bringing money to us and we are asking them for a plan about how they are going to sustain it. I think in all fairness, we have to do a more conscientious effort in trying to defer these costs as much as possible. That is just where I am now. How long have you been here now? Mr. Rapozo: Too long. Mr. Chock: I might be where you are soon. Thank you, Chair. Chair Furfaro: Well, being the most senior and consecutive Councilmember here, I just want to remind all of you that if you are feeling those kind of challenges, the Charter does not allow you to revisit anything of that nature with a "no-confidence vote" until the next Election. In the meantime, if you have serious challenges, the Charter only allows you to do what I have been doing, which is writing and saying that cash management and aging are all important pieces. I am hoping that Steve can really kOkua the Accounting Department on our piece. I think there is also another message here. If you are not going to reach a goal— if you take five hundred thousand dollars ($500,000) out or two hundred fifty thousand dollars ($250,000) out year after year, and it does not formulate, that means there is not any real strategic plan to reduce costs. We are just fooling ourselves if we are taking money out and we have those needs. I just wanted to throw that out on the table that the rules in the Charter prevent us to direct any Staff on the Mayor's team. COUNCIL MEETING 43 FEBRUARY 12, 2014 Mr. Rapozo: Again, that is why it is so vital of what we decide here because we do control the purse strings. We say that all of the time, but I do not think we exercise it enough. Just a little comment to Mr. Chock because it really does not matter if you are here ten (10) years, twelve (12) years, or three (3) months. The old saying goes in this line of work and it is, "The first time that somebody does something to you, takes advantage of you, or pulls the wool over your eyes, it is shame on you, and then the second time, it becomes shame on me." I have been shamed enough— I have said this numerous on this body, not just today, but in many situations. I guess I have reached that point in my career here in politics that I am about ready to exercise my authority on this body to start saying, "No, you go and fix your problems. Stop relying on the taxpayers." That is what I plan to do today. Thank you. Chair Furfaro: Okay. I did hear your symbolic nature of your vote, but I want to make sure you understand that it does matter if you have been here three (3) months or twelve (12) years like I have. It does matter if you have been here for three (3) months and another three (3) years on the Planning Commission like I have. It does matter that you volunteer to sit on the General Plan Update like I have. But the bottom line here is that strategic thinking from the Administration is extremely important and we question them. At the end of the day, guess who decides? Not us, but the people who put them in office. We just do our job. To think that we can sit and direct actions, activities, and so forth— the Charter prevents us from doing that. The motion for passage of Proposed Draft Bill No. 2531 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Chock, Hooser, Kagawa, Furfaro TOTAL– 4, AGAINST PASSAGE: Rapozo TOTAL– 1, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL– 2, RECUSED & NOT VOTING: None TOTAL– 0. Chair Furfaro: For the Administration, there is a lot to be done here because some people voted just to get it to the next point in a second reading bill. That is what I heard. Next item, Mr. Clerk. Proposed Draft Bill (No. 2532) –A BILL FOR AN ORDINANCE AMENDING ORDINANCE NO. B-2013-754, AS AMENDED, RELATING TO THE CAPITAL BUDGET OF THE COUNTY OF KAUAI, STATE OF HAWAII, FOR THE FISCAL YEAR JULY 1, 2013 THROUGH JUNE 30, 2014, BY REVISING THE AMOUNTS ESTIMATED IN THE BOND FUND – CIP AND SPECIAL TRUST FUND – CIP FOR PARKS & PLAYGROUNDS (Black Pot Condemnation Balance - $1,259,905): Mr. Kagawa moved for passage of Proposed Draft Bill No. 2532 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Chock. COUNCIL MEETING 44 FEBRUARY 12, 2014 Mr. Rapozo: I just want to ask the County Attorney if, in fact, this matter has been resolved, which by the way, this request for funding is what we expect; a breakdown of what the money is for. This is actually a good request that came from Mr. Hunt at Finance. I am just curious as to whether or not this issue has been resolved or not. I was under the impression that it was after reading this, but from Mr. Sheehan, it sounded like in his mind... Chair Furfaro: Maybe the two of you might want to come up please. There being no objections, the rules were suspended. Mr. Hunt: I guess in the case, there are actually two tracks that we are looking at here in terms of Black Pot; one is the completion of the transaction with Mr. Sheehan, which is the acquisition of the property. As you are aware, there was one million thirty thousand dollars ($1,030,000) that was refunded by the courts pending the decision on the remaining balance plus whether interest was going to be due. That is what we are talking about today. The other issue is the representation that we had from Special Counsel, which is also part of the money bill request that was earlier heard on the Special Counsel fees. If we are speaking specifically to this topic, this is the final payment, if you will, for Mr. Sheehan including an anticipated time allowance for continued interest until such money bill is approved. If it is delayed, then that might have to be revised, but assuming that this is done in the normal process of about two (2) months, this should be sufficient to pay off the remaining obligation to acquire the land. Mr. Rapozo: I guess the question is if the condemnation case is over? Mr. Castillo: The information that I have, and Mauna Kea was here earlier to answer your questions regarding the condemnation case, but I am sorry because he is not available right now. I have not seen any appeal yet, so the condemnation case is right now "we are done," but if Mr. Sheehan appeals the decision of the court, then we are not done. I am not sure about where we are regarding the status of the case right now. I have not seen any appeal from Mr. Sheehan. Mr. Rapozo: Okay. I am just trying to figure out if this is the final payment. Are we still on the hook for more funding for this? That is what I am trying to determine because when I read this, it appears to me that the case was done. In fact, what I read in the media and what I read in memos was that the condemnation is done and we now own that land. As I read this, as we are paying Mr. Sheehan off and it is pau, we own that property. What Mr. Sheehan was talking about today made me believe that maybe it was not over and there are some other issues that we are not aware of. I am not. We have never gotten briefed and maybe that is something that we have to do. Mr. Chock talked about the "black hole" and I want to make sure the "black hole" is not growing. We are going to keep dumping money into this condemnation which is supposed to have been relatively painless. Mr. Castillo: I can have Mauna Kea here after lunch to answer those questions if you want. Mr. Rapozo: Okay. Thank you. COUNCIL MEETING 45 FEBRUARY 12, 2014 Chair Furfaro: Okay. Are there any more questions? If not, thank you, gentlemen. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo: Mr. Chair, I will go ahead and support this today to move it forward, but I want to get a briefing on the Sheehan case. If it is done, can I have it in open session? If it is not, then we can have it in Executive Session. Chair Furfaro: Okay. Will the Clerk so note Mr. Rapozo's request. Mr. Watanabe: So noted. Chair Furfaro: Let us do a roll call vote. The motion for passage of Proposed Draft Bill No. 2532 on first reading, that it be ordered to print, that a public hearing thereon be scheduled for March 12, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: What else do we have? Mr. Watanabe: Chair, we have two (2) pending Resolutions that we are going to take after the public hearings. We have Executive Sessions on page number six and three (3) communications on page number three that requires the Council to go into Executive Session first before coming out and taking votes on those three (3) communications on page number three. Chair Furfaro: Okay. Mr. Kagawa: Chair, may I suggest that we just come back in one (1) hour and resume our meeting with the Resolutions? Should anybody show up for the public hearings, we can recess. I would really like to try and end today before pau hana. Chair Furfaro: Okay. That means we get back at 12:20 p.m. I said 12:20 p.m. because I added one minute and a half (1.5) for myself for a moment of personal privilege if I could have it. First of all, this morning, I tried to explain to Mr. Mickens the fact of the matter of his interpretation of our rules that dealt with the Kaka`ako Development Community. We are not aligned with our rules and I had called over with Staff doing the piece for me and getting it resolved. I said that I will make some exceptions if you are challenging the rules and so forth, but I want you guys to know that when I changed those rules, I can be cited for COUNCIL MEETING 46 FEBRUARY 12, 2014 that, if you did not know that. OIP can then interpret the changing of the rules on the table by me as another violation. Over the last couple of months, I have had violations that come to me from guys that filed complaints with OIP and they were not even in the audience for the vote, but I still have to respond to it and go through it. Telling the truth is some of the basic things. To the best of your ability, you interpret and tell the truth. You live by that. Hawaiian style guys wear palaoas because they are truthful people. I want to you let you know what the consequences were when you challenged that with me. I did not want you to get cited, too, if I was wrong. OIP has then said that it is clearly okay for us to restrict the speakers according to our rules to three (3) minutes during the public comment because the speaker could have testified and waited for the agenda item. That is different from the Kaka`ako Development rules where everybody speaks up front. Our rules are our rules. We vote on them and they get cleared by OIP. Guys like me who grow up in Wai`anae, we do not sit over here at the end at the table and take false cracks like that. Pau already. You guys better know me. My condition to demonstrate aloha is not because I am afraid that my interpretation is wrong and so forth, but if you are wrong, you are wrong. Do not interpret that as a weakness folks. Living aloha is completely different than Friday at Wai`anae High School and living the long weekend in battling through these things. Do not confuse trying to be a gentleman with doing the right thing. OIP says that we take normal Council testimony according to our rules. This will be out in writing soon for all of you guys and I will return to my less demonstrative emotions when we come back from lunch. There being no objections, the meeting recessed at 12:22 p.m. The meeting reconvened at 1:43 p.m., and proceeded as follows: Chair Furfaro: We are back from the break. Clerk, please take us to where we have to go. There being no objections, Resolution No. 2014-01 was taken out of the order. RESOLUTIONS: Resolution No. 2014-01 — RESOLUTION ESTABLISHING NO PARKING AT ANY TIME ALONG PORTION OF KOLOA ROAD, KOLOA DISTRICT, COUNTY OF KAUAI: Mr. Kagawa moved for adoption of Resolution No. 2014-01, seconded by Mr. Chock. Chair Furfaro: Is there anyone in the audience who wants to testify? If not, I am going to ask Mr. Dill to come up. We may have some questions to ask you. Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. I believe at the last meeting, the reason why we deferred it was that we wanted Public Works or the Administration to talk to some of the businesses that are nearby. We have gotten some responses, one in particular from the owners of the Koloa Fish Market. They had expressed that a full support of this Resolution is not their recommendation. They said parking is very scarce in the area and they could see time limits of parking on those spaces. For example, "no parking for more than thirty (30) minutes." Those are the kinds of recommendations that we got from the businesses. Along a main road like that with all of the businesses right there, while it is nice to have line of sight for every driveway coming out, it is not realistic in a busy town. Is it your job when you are pulling out to wait. It is a busy intersection. You guys COUNCIL MEETING 47 FEBRUARY 12, 2014 all drive there every once in a while. It is just about patience because there are a lot of cars that travel the road during the busy hours. What looks bad is that I signed off as introducing it, but actually I just did it because I wanted to let it go through the process, but certainly, I just want to make it clear that I did not support it because I think to support it, you need to ask the businesses. It is a business town and this is an impact on the businesses. It will take about six thousand (6,000) roughly... No? How much? Can you go ahead and answer some of those questions? There being no objections, the rules were suspended. LARRY DILL, P.E., COUNTY ENGINEER: For the record, Larry Dill, County Engineer. I estimated that it will take about three (3) stalls away from that location. I appreciate Councilmember Kagawa that at our request, you did put it on the agenda so thank you for that. Since some concerns were brought up at Council, as well as in discussions that we have had with the community out there, we are looking at revisiting our policy for managing and introducing these sorts of traffic resolutions at Council. With that said, what I would like to request is that the Council receive it for the record for this particular one and we will be revisiting it. If appropriate, we will bring it back to present to Council. Chair Furfaro: Okay. Mr. Chock. Mr. Chock: Thank you, Chair. I wanted to acknowledge that we had one (1) letter or a few E-mails from Teddy Blake and he was really thorough. He actually went out and took some pictures. I am not sure if you folks received those as well. Mr. Dill: We did. Mr. Chock: The pictures that he took first showed how many stalls were being affected and what it looked like, as well as oncoming traffic and what it looked like from someone standing or driving out of the driveway. I just wanted to recognize those and I think in addition to that, one of the other communications that we received was that perhaps maybe it should be looked at as not the three (3) stalls, but just the first or second stall that is obstructing the view field of the driver. I just wanted to share that with you and see if that can be taken into consideration. Mr. Dill: Okay. Thank you. I just want to share with you some of the discussions that we are having about this. Usually when we come before you for a "no parking" resolution, I believe it is in conjunction with intersection as opposed to a driveway. So part of the discussion and the policy we need to establish is "are we going to treat driveways the same as intersections?" I am not sure that they deserve the same sort of application because as Councilmember indicated, we have driveways all the way up and down the road that would instigate a lot of "no parking" areas. The other part of the picture is when we receive these requests for a "no parking" resolution because of concerns for safety for ingress and egress, we apply standard engineering criteria. We look at the design speed for the road. We look at stopping sight distances and look at the configuration of the intersection, and then you apply the rules according to the American Association of Safety and Highway Transportation Officials (AASHTO) and you get the safe way to establish the clear sight distance. I am not sure that I am comfortable saying that and let me back up and say that we do one hundred COUNCIL MEETING 48 FEBRUARY 12, 2014 percent (100%) support and agree that it is appropriate for us to go to the public and solicit input for a lot of things. I am not sure that when we come up with black and white engineering criteria to establish safety that we say, "The criteria say three (3), but we will give two (2) because someone wants an extra parking stall." We are having the discussion now and I am not ready to say "yes" or "no" to that today, but I just wanted to share with you some of the concerns that we have about these things. I wanted to put that on the table. Chair Furfaro: Okay. Did you have more, Ross? Mr. Kagawa: Yes. I guess we had a few pictures thanks to Mason. Can we get that slide up? Mr. Chock: I just wanted to respond and by no means do I think we are engineers that can make the decisions on this, so I appreciate the direction that you are headed. But just for the sake of you folks seeing what is happening there, this first picture is from the driveway just in front of the black Mustang to the telephone pole, which is approximately forty-four (44) feet, which is equivalent to the three (3) parked cars there. This is looking at the three (3) parked cars from the opposite side. This is what it looks like as you venture outside of that parking lot there and you can actually start to see the top of a car as it comes to your view field. But still looking from the driveway at the same car approaching the driveway, you can see that your vision is of the oncoming traffic and it is substantially impaired with the cars parking along the makai road shoulder. This is the same scene without the three (3) cars there. I think we got the message there. I just wanted to make sure that we all see that and I am sure that you can take that into consideration also. Mr. Dill: Yes. Thank you. Chair Furfaro: Mr. Kagawa. Mr. Kagawa: I want to add something. I am not even sure because the way it looks on the map does not look to me of what I know of Koloa Town. I was looking at almost a different area, but pictures always help. I am not sure even if the Koloa Fish Market guys were really aware that it is kind of away from them. Their general statement was that part of their business is affected by not having enough parking. Certainly when it is busy, cars will park that far because there is no parking around. Even the Times parking lot is very small for a big store. I think overall, like you said, it is tough to please both sides. I am not criticizing you in any way for bringing the Resolution here. I think it is better that we have it and vet it, rather than ignore it I guess. Chair Furfaro: Mel? Mr. Rapozo: Thank you, Mr. Chair. Larry, thank you very much for being here. Do we know if there were any accidents involving this driveway and the road? Mr. Dill: I do not know. Mr. Rapozo: Was the Police Department involved in this Resolution at all? COUNCIL MEETING 49 FEBRUARY 12, 2014 Mr. Dill: Yes, we ran it by them and have a memo back from them indicating that they support. Mr. Rapozo: They do support? I look at those pictures and think that maybe something you can think about is if we were to put some calming devices like maybe the manapuas... what do you call it? Not a speed hump, but... Mr. Dill: Manapuas? Mr. Rapozo: I call them manapuas... Mr. Dill: The bumps... the dots, yes. Mr. Rapozo: Yes, and maybe a driveway sign because I have seen those in other jurisdictions, I think in Honolulu. Also, some of those calming devices so that the traffic will slow down as they approach the driveway might be a more practical solution. I am not an engineer by any stretch, but it is kind of scary when you are trying to pull out of the driveway and see that first car. I think if that first car was gone then it might work, but to remove all three (3) would be overkill. Anyway, something there so as the car is reversing out of the driveway very slowly and the traffic is coming very slowly because of the calming device. You have two (2) slow moving cars and I think the ingress and egress would be a lot safer. Mr. Dill: Yes. Thank you. We will consider that in our discussion of how to treat driveways versus intersections. Mr. Rapozo: Okay. Thank you. Chair Furfaro: Okay. Larry, did you get a copy of my letter to Bert at the Fish Market? Mr. Dill: I do not believe I did. Chair Furfaro: I will send one to you. I used to drive from Hanalei to Po`ipu from 1980 to 1982, and then a second time in the 90's as the Hotel Manager at Sheraton Kaua`i. Bert was the Executive Chef and I want to make sure that all of the points that I sent in that letter— I can follow-up with you and it is clear that we can say to him that you want us to receive this item today and you folks will be visiting them using engineering criteria, but the engineering criteria should always be inclusive with the public that is affected, right? If we receive this, this will be something that comes up in the near future? Mr. Dill: Yes. Chair Furfaro: We can assure them that further studies are going to occur. Mr. Dill Yes, that is correct. Chair Furfaro: You are recommending that we just receive this item? COUNCIL MEETING 50 FEBRUARY 12, 2014 Mr. Dill: Yes. Chair Furfaro: Okay. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Kagawa withdrew the motion to approve, and Mr. Chock withdrew the second. Chair Furfaro: Okay. I am looking for a new motion to receive. Mr. Chock moved to receive Resolution No. 2014-01 for the record, seconded by Mr. Rapozo, and carried by a vote of 5:0:2 (Mr. Bynum and Ms. Yukimura were excused). Chair Furfaro: Thank you, Larry. Next item please. Resolution No. 2014-06 — RESOLUTION ESTABLISHING CROSSWALKS ACROSS 'ULU MAIKA STREET AND KALEPA STREET, LIHUE DISTRICT, COUNTY OF KAUAI: Mr. Kagawa moved for adoption of Resolution No. 2014-06, seconded by Mr. Rapozo. Chair Furfaro: Can you give us a short overview on the progress of this? I may follow with some questions. There being no objections, the rules were suspended. Mr. Dill: This crosswalk that we are proposing to establish at this intersection actually was a crosswalk that was a condition of approval of the Hokulei Village Development; the Safeway development. They are required to install this crosswalk as part of their project and that was done as a result of many requests we had from the public to provide pedestrian accommodation across what is a very major road and busy intersection in that location. So that condition was given to that development to put in; however, that has not happened as rapidly as we had hoped or the public had hoped, so we are proposing to go ahead and stripe this crosswalk in advance of waiting for that development to go ahead and take care of it. That is why you have the Resolution before you today. Chair Furfaro: Are these the two examples that I am looking at as exhibits? Mr. Dill: That is the Koloa exhibit. Chair Furfaro: I am looking for Resolution No. 2014-06. I do not see one in my packet. I will get to it. Mr. Dill: There are two (2) exhibits; one showing an area overview and the other... Chair Furfaro: I got it. Larry, why was it never done? COUNCIL MEETING 51 FEBRUARY 12, 2014 Mr. Dill: Because the development has not moved forward as rapidly as I think anybody had anticipated. They still have it within their scope to do. They will do more improvements to this intersection. I think that includes modification of the associated sidewalk ramps, so we would just take care of the striping at this stage and they would take care of the rest of this that would be required for their construction drawings. The construction drawings having only recently been approved, so they have not been able to get to it yet. Chair Furfaro: Okay. These lots in the site here with the very long flag driveways; what actually sits there? Mr. Dill: This is the intersection. Now looking at the project location exhibit to the right is Kukui Grove and on the southern side of `Ulu Maika Street is Home Depot. Maybe the first two (2) or three (3) lots are vacant, but the the Kaua`i Community Federal Credit Union office building is on one of those lots, but I forget which. Chair Furfaro: Okay, so that explains the long flag lots and the fact that there are space in between. Thank you for the answer. Mr. Kagawa, you have the floor. Mr. Kagawa: Thank you, Chair. I wanted the maps and better clarification of where these crosswalks were going to be put. I know I had put in a personal request to have a crosswalk to go from Home Depot side across to Times because people always cross there anyway and it is really dangerous with no crosswalk. My personal request was on hold, but for this one here the crosswalks... so the crosswalk would go all the way across to Kukui Grove? Mr. Dill: That is correct. Exhibit "A" shows that we have a crosswalk going across `Ulu Maika at the intersection, and then... Mr. Kagawa: Larry, can you quickly show where Kaumuali`i Highway is? Mr. Dill: Okay. Up here is Kaumuali`i Highway. This is Kukui Grove Shopping Center. Home Depot is over here. For the credit union... I forget... it is one of these lots over here. The proposed crosswalks are across `Ulu Maika right here, and then across Kalepa Street right here. Mr. Kagawa: That is my personal request. Thank you. Mr. Dill: You are very welcome. Mr. Kagawa: It is done. We can file it. It is a long stretch to just have one. They cross at various areas. They will cross there and they will also cross by where old Sears was. Anyway, at least we have one. Thank you. Chair Furfaro: Very good points from Mr. Kagawa. As you go down and walk along it, you are going towards citizens' utilities, the mini shopping mall, doctors' offices, dentists, vision, and then the credit union. It is a pretty busy street. Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. Larry, could we look at another one closer towards Costco that would connect the old Sears? Like COUNCIL MEETING 52 FEBRUARY 12, 2014 Mr. Kagawa, I was kind of surprised at how many people walk between... that is what we want to do is encourage the people to get out of their cars. They are running across now. If we make it safer for them— that stretch has become quite a raceway for people, so if we could just take a look at that. Thank you. Chair Furfaro: Is there anymore discussion here? If not, Larry, thank you very much. There being no objections, the meeting was called back to order, and proceeded as follows: The motion for adoption of Resolution No. 2014-06 was then put, and carried by the following vote: FOR ADOPTION: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL– 5, AGAINST ADOPTION: None TOTAL– 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL– 2, RECUSED & NOT VOTING: None TOTAL– 0. Chair Furfaro: On that note, I believe we can get the County Attorney up now for our Executive Sessions. There being no objections, the rules were suspended. Mr. Castillo: Good afternoon everyone. Council Chair and Councilmembers, County Attorney, Al Castillo. Council Chair, I am going to read all of the postings. EXECUTIVE SESSION: ES-696 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(E), on behalf of the Council, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing, discussion and consultation regarding the quarterly report on pending and denied claims. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. ES-697 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent Henry Barriga in Lynell Tokuda, et al. vs. Chris Calio, et al., Civil No. 13-00202 DKW-BMK (U.S. District Court), and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-698 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent Sherwin Perez in Lvnell Tokuda, et al. vs. Chris Calio, et al., Civil No. 13-00202 DKW-BMK (U.S. District Court), and related matters. The briefing and consultation involves COUNCIL MEETING 53 FEBRUARY 12, 2014 consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-701 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Kaua`i County Charter Section 3.07(e), the purpose of this Executive Session is to provide the Council with a briefing and request for authority to settle the case of Verna Rita v. County of Kaua`i, Civil No. CV12-00605 JMS RLP (U.S. District Court), and related matters. The briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-702 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent the County of Kaua`i in Syngenta Seeds, Inc.; a Delaware corporation, et al. vs. County of Kaua`i, Civil No. CV14-00014 BMK (U.S. District Court), and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Chair Furfaro: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Chock moved to convene into Executive Session for ES-696, ES-697, ES-698, ES-701, and ES-702, seconded by Mr. Kagawa. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: I just wanted to see if there was a way to maybe take the items that can get B.C. out early. Chair Furfaro: That is probably the way we will go. Mr. Kagawa: We can come back out, finish with B.C., and go back in to finish our business, if that is okay. Chair Furfaro: Definitely. Your suggestion is well-received. On that note, we are going to go into Executive Session, but my practice is to take a vote before we go in. The motion to convene into Executive Session for ES-696, ES-697, ES-698, ES-701, and ES-702 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL — 5, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: Thank you. Let us move into the Executive Chambers. COUNCIL MEETING 54 FEBRUARY 12, 2014 There being no objections, the meeting recessed at 2:09 p.m. The meeting reconvened at 3:47 p.m., and proceeded as follows: Chair Furfaro: We are back from Executive Session. I am actually referencing the agenda items C 2014-35 and C 2014-36. I believe I am looking at some discussion that would make any further recommendations from the Police Commission. COMMUNICATIONS: C 2014-35 Communication (01/16/2014) from the County Attorney, requesting authorization to expend funds up to $8,000 to retain Special Counsel to represent Henry Barriga in Lynell Tokuda, et al. vs. Chris Calio, et al., Civil No. 13-00202 DKW-BMK (U.S. District Court), and related matters: Mr. Rapozo moved to defer C 2014-35 pending action by the Police Commission, seconded by Mr. Kagawa, and carried by the following vote: FOR DEFERRAL: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST DEFERRAL: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. C 2014-36 Communication (01/16/2014) from the County Attorney, requesting authorization to expend funds up to $8,000 to retain Special Counsel to represent Sherwin Perez in Lvnell Tokuda, et al. vs. Chris Calio, et al., Civil No. 13-00202 DKW-BMK (U.S. District Court), and related matters: Mr. Rapozo moved to defer C 2014-36 pending action by the Police Commission, seconded by Mr. Kagawa, and carried by the following vote: FOR DEFERRAL: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL — 5, AGAINST DEFERRAL: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL — 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: We would then like to also go to C 2014-45. This is based on the County Attorney's Office seeking approval on seventy-five thousand dollars ($75,000) for Special Counsel. C 2014-45 Communication (02/04/2014) from the County Attorney, requesting authorization to expend funds up to $75,000 to retain Special Counsel to represent the County of Kaua`i in Syngenta Seeds, Inc.; a Delaware corporation, et al. vs. County of Kaua`i, Civil No. CV14-00014 BMK (U.S. District Court), and related matters: Mr. Hooser moved to approve C 2014-45, seconded by Mr. Chock, and carried by the following vote: FOR APPROVAL: Chock, Hooser, Kagawa, Rapozo, Furfaro TOTAL— 5, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Yukimura TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. COUNCIL MEETING 55 FEBRUARY 12, 2014 Chair Furfaro: This will end our open portion for today. We do need to go back in Executive Session for two more items. Members, let us get back into the Executive Chambers. ADJOURNMENT: There being no further business, the meeting was adjourned at 3:50 p.m. Respectfully submitted, RICKY WATANABE County Clerk :cy