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HomeMy WebLinkAbout05/28/2014 Council minutes COUNCIL MEETING MAY 28, 2014 The Council Meeting of the Council of the County of Kauai was called to order by Council Chair Jay Furfaro, at the Council Chambers, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, May 28, 2014 at 9:54 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum (excused at 6::25 p.m.) Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser Honorable Ross Kagawa (present at 12:06p.m.) (excused at 5:55p.m.) Honorable Mel Rapozo Honorable JoAnn A. Yukimura Honorable Jay Furfaro RICKY WATANABE, County Clerk: Six (6) present. Chair Furfaro: I believe Mr. Kagawa will be here at approximately 1:30 p.m. Mr. Watanabe: Yes, excused. Chair Furfaro: I would like to get an approval with the agenda, but I do want to explain some housekeeping items to everyone. It is my intent to remove from the Consent Calendar, C 2014-164, as we have a significant number of people that have wished to testify today and also testify on several items. If they testify on the Consent Calendar, they are not allowed to give testimony on any other items in the day. So, I want to remove that item from the Consent Calendar, but for those of you that had signed up for various items, if it is on the Consent Calendar, it is for the encouragement of giving people an opportunity to speak because they have to leave for the day. The rest of the items will come up. That is the intent of the Consent Calendar. So, on that note, could I read the ruling on "D" for the Public Comment period? Mr. Watanabe: Chair, we need an approval for the agenda. APPROVAL OF AGENDA. Mr. Rapozo moved for approval of the agenda as circulated, seconded by Ms. Yukimura, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Chair Furfaro: (D), Public Comment, please. 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 COUNCIL MEETING 2 MAY 28, 2014 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. So, members, you do understand when we do get to Consent Calendar, I want to move that item out. I will need a motion from somebody other than myself. Is there anyone now that wants to give public comment? If you give public comment now, you will not be able to give testimony during the rest of the procedures today. Anyone? Okay, no one. We will then move on to the Minutes. There being no one to provide public comment, the meeting proceeded as follows: MINUTES of the following meetings of the Council: May 7, 2014 Special Council Meeting Mr. Bynum moved to approve the Minutes as circulated, seconded by Ms. Yukimura, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Mr. Watanabe: Council Chair, on the Consent Calendar, we have several people that have signed up to speak on transmittals and so shall I read each Consent item by itself, Chair? Chair Furfaro: Yes. CONSENT CALENDAR: C 2014-134 Communication (05/07/2014) from the Mayor, submitting his supplemental budget communication for Fiscal Year 2014-2015 and proposed amendments to the budget bills, pursuant to Section 19.02A of the Kaua`i County Charter. Chair Furfaro: Thank you. Now, Mr. Clerk, it is my intention that the budget items will come up later in the afternoon. People can speak again then, right? Mr. Watanabe: Yes. Chair Furfaro: And just another caution, that if they speak now, they have spoken for the day. JoAnn. Ms. Yukimura: Mr. Chair, if people want to speak on the separate items, maybe we should take those items out of the Consent Calendar and then approve everything else. Chair Furfaro: Okay, I am open to any discussion you want. Quite frankly, I want to remind you we have a very, very full calendar today. I expect and will call a time for the budget discussion because without the budget discussion today and without all members present, it would be very difficult to make the June 3rd deadline. Ms. Yukimura: I hear you. COUNCIL MEETING 3 MAY 28, 2014 Chair Furfaro: So, members, is there anybody that wants to remove items from the Consent Calendar, I will give you the floor right now, but I am looking for someone to help me remove... Ms. Yukimura: And I will make a motion to... Chair Furfaro: Let me finish, JoAnn. I have the floor. Ms. Yukimura: Oh, okay. Chair Furfaro: I am looking for someone to remove C 2014-167 first. That is at the Chair's request. Ms. Yukimura: C 2014-164? Chair Furfaro: But I cannot...C 2014-164. Ms. Yukimura: Okay. Mr. Rapozo moved to remove C 2014-164 from the Consent Calendar, seconded by Mr. Bynum. Chair Furfaro: Discussion? Mr. Hooser. Mr. Hooser: Yes, just to clarify. This moves it from the Consent Calendar to the Communications calendar? Chair Furfaro: Yes, and I will take it next. Mr. Hooser: Okay. Chair Furfaro: I will take it first. Mr. Hooser: But I am a little confused about the Rule that they are only allowed to speak on that item only once or no? Chair Furfaro: No, that was on the earlier, Section "D". Mr. Hooser: Okay. Chair Furfaro: Okay? Mr. }looser: Right. Chair Furfaro: On Section "D", if they spoke no that, then that is their time. Mr. Hooser: No, I understand now. Chair Furfaro: Okay. So, we are clear? Mr. Hooser: Yes. COUNCIL MEETING 4 MAY 28, 2014 Chair Furfaro: Okay. We have a motion and a second. Further discussion about moving from the Consent Calendar to the Communications? JoAnn, you had your hand up? Ms. Yukimura: Not on this motion. Chair Furfaro: Okay. The motion to remove C 2014-164 from the Consent Calendar was then put, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Chair Furfaro: Mr. Clerk, make a note at the Chair's discretion, that will be the first item. Mr. Watanabe: So noted. Chair Furfaro: Thank you. Okay, members, any other items you want to remove from the Consent Calendar? JoAnn, you have the floor. Ms. Yukimura: Mr. Chair, the Clerk said there were a couple other items, I think, that other people wanted to testify on. Mr. Watanabe: Yes. On one item we have one (1) speaker and... Ms. Yukimura: And one (1) other item? Mr. Watanabe: It is on transmittal letters. Ms. Yukimura: For the budget? Mr. Watanabe: One (1) is on the budget, one (1) is on the Resolution. Ms. Yukimura: Which Resolution? Mr. Watanabe: Resolution regarding C 2014-162. I mean, sorry, C 2014-160, and three (3) speakers wants to speak on C 2014-163, communication transmitting another Resolution. Ms. Yukimura: And I assume they are not wanting to wait for the Resolution, but want to speak on the transmittal letter? Mr. Watanabe: I am not sure, Councilmember. They just signed up on the sheets. Ms. Yukimura: Okay. Chair? Chair Furfaro: Yes. Ms. Yukimura: Is it your pleasure to allow testimony based on the communication rather than the Resolution itself? COUNCIL MEETING 5 MAY 28, 2014 Chair Furfaro: Any communication dealing with the budget though, I will take in the afternoon. Ms. Yukimura: Okay. Chair Furfaro: I want all members present to vote on that one hundred seventy-eight million dollars ($178,000,000) budget. Ms. Yukimura: Alright. So, then, with your consent, I would move to remove from the Consent Calendar C 2014-160 and C 2014-163, which are the two (2) other issues that the Clerk says people want to speak on. Chair Furfaro: C 2014-163 deals with which items, Mr. Clerk? Mr. Watanabe: C 2014-163 is communication from Councilmember Hooser and Councilmember Rapozo, transmitting for Council consideration, a Resolution expressing a Resolution Expressing No Confidence In And Requesting The Resignation Of The County Attorney. Chair Furfaro: Okay, we will remove that. Do I have a second on the motion? Ms. Yukimura moved to remove C 2014-160 and C 2014-163 from the Consent Calendar, seconded by Mr. Chock seconded the motion. Chair Furfaro: We have a second. Mr. Bynum. Mr. Bynum: I just...it has always been my position if a Councilmember or anyone requests to remove it, I would support it. However, if people testify...this is opening up testimony twice and we have time set. So... Chair Furfaro: I am not sure everyone realizes that. Mr. Bynum: I do not know if anybody requested this removal and so it may come up to work today, but I will vote for it because I think that is the way we set this up. Chair Furfaro: I have a motion and a second on these two (2) items removed from the Consent Calendar. Mr. Watanabe: Chair, on C 2014-134 also. C 2014-134 we have one (1) speaker signed up. Oh, that has been...the budget, yes. Chair Furfaro: That is in the afternoon. Just the two (2) as mentioned. Further discussion? The motion to remove C 2014-160 and C 2014-163 from the Consent Calendar was then put, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Chair Furfaro: 6:0. Please remove them. We will take them in regular order with exception of item C 2014-164. I will be taking that first in Communications. COUNCIL MEETING 6 MAY 28, 2014 Mr. Watanabe: Okay. Chair Furfaro: Are you okay with that, Mr. Clerk? Mr. Watanabe: So noted. So, we are on the Consent Calendar for receipt. We have C 2014-158, C 2014-159, C 2014-161, and C 2014-162. Chair Furfaro: Okay. That stays in the Consent Calendar. C 2014-158 Communication (05/02/2014) from the Director of Finance, transmitting for Council information, the Period 9 Financial Report — Detailed Budget Report, Statement of Revenues (Estimated and Actual), Statement of Expenditures and Encumbrances, and Revenue Report as of March 31, 2014, pursuant to Section 21 of Ordinance No. B-2013-753, relating to the Operating Budget of the County of Kaua`i for Fiscal Year 2013-2014: Mr. Bynum moved to receive C 2014-158 for the record, seconded by Mr. Chock, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). C 2014-159 Communication (05/09/2014) from the County Engineer, transmitting for Council information, the following monthly Building Permit Reports for the months of January, February, March, and April 2014: (1) Building Permit Processing Report — Information on quantity and value of incoming applications, value of permits issued, and status of revolving Fund; (2) Building Permit Value Summary — Graph of monthly Building Permit values; (3) Building Permit Tracking Report — Summary of processing times overall and by Agency for all permits issued during the reporting period; and (4) Building Permits Status: All current open applications — Summary review times overall and by Agency for all outstanding permit applications. Mr. Bynum moved to receive C 2014-159 for the record, seconded by seconded by Mr. Chock, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). C 2014-161 Communication (05/16/2014) from Councilmember Bynum, transmitting for Council consideration, a proposed Bill for an Ordinance to amend Chapter 5A of the Kauai County Code 1987, as amended, relating to Real Property Taxes, to include "Agronomics" as an additional Real Property Tax Rate Classification, to amend the definition of "agricultural use," and to require the Director of Finance to submit annual reports involving all agricultural dedicated properties to the Mayor and the County Council: Mr. Bynum moved to receive C 2014-161 for the record, seconded by seconded by Mr. Chock, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). C 2014-162 Communication (05/19/2014) from Councilmember Yukimura, transmitting for Council consideration, a Resolution amending Resolution No. 2014-57, Draft 1, to amend the deadline for the Affordable Housing Advisory Committee to file its report with the Council, which is currently due on COUNCIL MEETING 7 MAY 28, 2014 May 30, 2014: Mr. Bynum moved to receive C 2014-162 for the record, seconded by seconded by Mr. Chock, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Chair Furfaro: Mr. Clerk, recap for me, the items that were moved out of the Consent Calendar that included C 2014-164. Mr. Watanabe: Okay. On the first item moved off that will be discussed in the afternoon will be C 2014-134, C 2014-160, C 2014-163, and we will be taking up next, C 2014-164. That has been moved. Chair Furfaro: Okay. The only one I am putting out of order at the top of the list is C 2014-164 though, please. So, if everybody is following us, we have taken what is the communication out of the Consent Calendar on C 2014-164 so that we can take testimony first. Today, we have two (2) Resolutions that are very appropriate as just a policy statement and then we have our budget to do in the afternoon. So, I am following the target dates and times that I mentioned earlier with the budget coming up in the afternoon. So, we will read C 2014-164. There being no objections, C 2014-164 was taken out of order. COMMUNICATIONS: C 2014-164 Communication (05/22/2014) from the County Clerk, transmitting a 2014 Charter amendment petition relating to "A New Article XXXIII to Protect From Hazards of GMO Agriculture, Toxins and Testing, Establish an Administrator of Environmental Health, and Provide for Enforcement" submitted by petitioners' committee "Kaua`i Rising" pursuant to Section 24.01(B) of the Kaua`i County Charter. Chair Furfaro: A number of people have signed up this morning? Mr. Watanabe: Yes. Chair, we have six (6) that have signed up. Mr. Bynum moved to receive C 2014-164 for the record, seconded by Mr. Rapozo. Chair Furfaro: Thank you. There is a motion to receive and second. Is there anyone in the audience that wants to speak on this, but has not signed up yet? Then you need to sign up. Thank you. Let us have the first speaker. Mr. Watanabe: First speaker is Lora Lynne, followed by Michael Shooltz. Chair Furfaro: At the discretion of the Chair, all speakers will have three (3) minutes to speak. I want to make sure that the audience also understand that the motion on the floor is to receive. By procedure, this means that we are accepting what has been given to us and that it will be forwarded to Elections. This is not a "yes" or "no" vote. This is to receive it so it can go to be reviewed and the evaluation of the signature specimens by Elections. Go right ahead. You have the floor. There being no objections, the rules were suspended to take public testimony. COUNCIL MEETING 8 MAY 28, 2014 LORA LYNNE: Thank you very much. Chair Furfaro: Press the front of the microphone and you get a blue light. Ms. Lynne: Yes. Chair Furfaro: There we go. You are okay now. Ms. Lynne: Thank you very much. My name is Lora Lynne and I am a resident of Kauai on the North Shore. I am starting this out today with a great amount of gratitude for all of the courage that it has taken for everyone on this island to get to the point where we are working with this very large and dramatic use of the island of Kauai. I am here not so much as myself, but representing over four thousand forty (4,040) people who signed the petition and also the many people that I have registered to vote, people who have never voted before, who have been discouraged, and find that this issue is actually important enough for them to take a stand. For me, it is an amazing journey of speaking to folks all over the island. I do not consider myself to be just a resident of the North Shore. I consider myself to have everyone on this island as my neighbors and what affects the people of the West Side, affects me deeply. I find that this is a people's movement. It is a grassroots movement. For me, as a young girl at eleven (11) years old, I went to see the march on Washington with a Civil Rights movement and to see that debated in the government. This, to me, is the people being involved, people standing up for what they love. They love this island, they love their children, they love that we might have a democracy, and that they will have a voice. I am grateful to be able to come and offer also, a summary of Article XXXIII for all of you to be able to look at. Chair Furfaro: May I ask the Clerk's Office to take the copy, please. Continue. Ms. Lynne: And we also want to extend our aloha by being able to meet with members of the Council so that they can meet with our attorney who has helped draft this so that they can have a better understanding, any questions answered. This is our way right now with all of this and... Mr. Watanabe: Three (3) minutes. Ms. Lynne: ...very happy to be standing for these folks that I have been in connection with all over the island. Thank you so much. Chair Furfaro: Thank you very much. Mr. Watanabe: Michael Shooltz, followed by Joan Porter. MICHAEL SHOOLTZ: Aloha. My name is Michael Shooltz and I am here on behalf of Kaua`i Rising. It looks like I will be about four (4) minutes and Joan has graciously offered me a minute. Do I need to approve that ahead of time? Chair Furfaro: We divide time not by increments, but is somebody yielding their time to you, Michael? COUNCIL MEETING 9 MAY 28, 2014 Mr. Shooltz: Oh, okay. They were talking about a minute, but... Chair Furfaro: No. We do it in three (3) minute increments. Is someone yielding their time to you? Mr. Shooltz: Yes. Chair Furfaro: Very good. Mr. Shooltz: Okay. Chair Furfaro: Okay, give him six (6) minutes, please. Mr. Shooltz: So, mahalo for this opportunity to present the Charter amendment to add Article XXXIII to the Kaua`i County Charter. We are currently riding a rapidly growing wave of opportunity around the issue of Genetically Modified Organisms (GMO) and the hazards and threats that they bring with them to our island and to our world. As you know, these chemical activities are already banned in over sixty (60) Counties around the world including throughout Europe, China, Russia, and South America. Vermont has just passed its GMO labeling law with many other State trying to do the same, two (2) Counties in Oregon have just banned GMOs within the past month. Jackson County with one hundred twenty thousand (120,000) registered voters had a sixty-six percent (66%) "yes" vote, and over twenty (20) States are currently entertaining labeling legislation. Here on Kaua`i, we are grateful to you on this Council for the omens work you have done this past year in passing Bill No. 2491, and now Ordinance No. 960. Mahalo. During the process of passing that Bill, we all heard the heartfelt testimony of the island's pediatricians, all of its natural pathetic doctors, the Nurses Association, and many other medical professional, scientists, and researchers acknowledging the risk of the GMO experiments as well as the high levels of cancers, birth rates or birth defects, asthma, nose bleeds, respiratory infections, and the other maladies being experienced by the people living on Kaua`i's West Side. This past week, the State's Department of Health released water studies acknowledging the presence of numerous toxic elements that currently exist in the waters here on Kauai. They offered assurances that for the most part, the levels found were below the levels that the Federal regulatory agencies consider safe. However, just this past week, Dr. Trone Haze and GMO researcher Jeffery Smith were here on Kaua`i and noted that the diseases and negative effects of these toxic elements occur at levels well below the regulatory agencies say are safe. In fact, Dr. Haze pointed out that in his studies on frogs whose estrogen, testosterone, and other hormones are identical to that of humans. He found that the chemical castration effects found in his fifteen (15) years of research on Atrazine occur at levels from thirty (30) to three hundred (300) times lower than that the Environmental Protection Agency (EPA) calls safe and that the safety level set by these agencies and the United States are as much as seven hundred (700) times higher than the levels set by Countries in Europe. Jeffery Smith also pointed out that in spite of large volume of research that has occurred over the years, many of these levels and other safety issues have not been reviewed since 1991 and the current regulatory laws were written years prior to the existence of these hazardous GMO operations and are obsolete. COUNCIL MEETING 10 MAY 28, 2014 The stark reality is that there is no one actually looking out for the health and well-being of the people here on Kauai. This is heartbreakingly clear. There are people in this room who are dealing with cancer, with their children waking up with nose bleeds, with asthma, and respiratory infections. I was told this week by a former teacher at Waimea Canyon Middle School that she knows of eight (8) former teachers who have been stricken with cancer, three (3) of whom have died. She told me that one (1) of those who died used to be a runner and that he and her daughter used to run together in the test fields. Her daughter also contracted cancer. There are only twenty-two (22) teaching positions at the school and five (5) of them are currently vacant. The effects on these West Side communities are deep and far reaching. The children born with birth defects at ten (10) times the National average are having to leave their homes and be on the mainland for their ongoing surgeries and that is the ones that survive. When the workers in the test fields get sick while spraying, those stories are suppressed by these companies and their employees are sworn to secrecy. The new Chief Executive Officer (CEO) at the hospital in Waimea is a chemical company lawyer at a time when it is more important than ever to have transparency around these issues. The people of Kaua`i know the truth about what is happening here at ground zero as to all of us in this room. There continues to be one hundred (100) to two hundred (200) tons of toxic poisons dumped on Kaua`i annually and that is two (2) to four (4) tons per week. It is time to stop the poisoning of paradise and its people. It is time to take the next step. It is time to let the people decide. This Charter amendment offers that opportunity. So, we are very grateful that we have this opportunity to represent the over four thousand (4,000) signatures on this petition and to offer it here today to the County Council. Thank you for your consideration. Much appreciated. Thank you. Mr. Watanabe: Next speaker is Wendell Kabutan, followed by Sandra Herndon. WENDELL KABUTAN: Aloha. My name is Wendell Kabutan from Waimea. I just want to comment on the process that I experienced for the first time in my life. I was never really involved in political decisions or activism or anything like that. So, Bill No. 2491, Ordinance No. 960 was a grueling process and I cannot say that I have one hundred percent (100%) satisfaction in the outcome and in the experience. The voice of the people was not really heard to me, in the process. So, I am hoping through this Charter Amendment that when the people vote directly, it will at least reflect the will of the people and the voice of the people, and not through a number of representative types of decision-making, but directly by the people. So, I am hoping to see power and all authority restored back to the people and that the people of Kauai do understand that they can have a voice and they can express their voice through the balloting process and the election in November. Anyway, that is my comment. I am looking forward to seeing what actually happens in November. Mahalo. Mr. Watanabe: Next speaker is Sandra Herndon, followed by Lonnie Sykos. SANDRA HERNDON: Aloha Council and good morning. My name is Sandra Herndon for the record. It is interesting, I noticed that just thinking about sitting in front of this body makes me a little nervous. I thought why is that? I think personally, it goes back to being raised in a family where one of the primary thoughts were that children should be seen and not heard. I find that really interesting because it seems that philosophy or that idea has really reached out COUNCIL MEETING 11 MAY 28, 2014 much further than what you might ordinarily think. What I am referring to is the idea that culturally speaking, the government seems to be sacrosanct and that probably goes back to the time of the Founding Fathers when as much as we love and respect our Constitution, the truth is it was written by a bunch of very rich white men. It was not until the Bill of Rights came along later that we were able really to get some rights. So, historically, it has been somewhat difficult for the general public to have their rights recognized. I am referring to days of slavery, the days when women had to fight for the right to vote, even Civil Rights back in the 1960s, which I do remember that. I think that as a result, that mindset of people struggling for their rights has carried forth into today. I do not want to reiterate what some other speakers have already said. So, I just want to say that I believe personally, that we have a right to a healthy environment. We have a right to live on a clean planet. We have...this is everybody's right. It is not just... Mr. Watanabe: Three (3) minutes. Ms. Herndon: Thank you. So, I urge you to stand strong to be able to speak truth to power. When those people say that the County rights are preempted, know that there is nothing that preempts the people's right to live. Mahalo. Mr. Watanabe: Lonnie Sykos, followed by Felicia Cowden. LONNIE SYKOS: Good morning Council Chair and Council. Nine hundred dollars ($900) an hour, I am going to be really brief here. To me, I understand why this is here and I understand why you are going to accept this, and it will end up on the ballot this year. However, I would like the Council to reflect that what we are doing is creating another administrative position. We will probably be paying this administrator one hundred thousand dollars plus ($100,000+) a year, and what it represents is another gross failure or our Human Resources (HR) system. The County already is obligated to protect its employees and we have some type of loss prevention and some type of safety function. So, the issue of the community being potentially exposed to the chemistry and the dust might be pushing the boundaries of what the County might assume as its responsibility, but we have employees out there and we have an absolute responsibility to protect our employees. So, all of the environmental testing, all of the issues about the dust, all of that could have been addressed through our existing loss prevention and safety function had we chosen to do that policy and address it that way. So, now I understand the community's response to what has occurred. I understand why the people signed the petition, why this is occurring, but to the public at-large, we are going to create another level of bureaucracy to duplicate services that we already could provide within our existing function. So, thank you for hearing me. Chair Furfaro: JoAnn. Ms. Yukimura: Lonnie, you are talking about loss prevention and safety of County employees... Mr. Sykos: Yes. Ms. Yukimura: ...but I think there is a much broader scope to the proposed Charter Amendment which is protecting public. So, I do not... COUNCIL MEETING 12 MAY 28, 2014 Mr. Sykos: Well, there is... Ms. Yukimura: ...see how that is within the function of County presently. Mr. Sykos: Well, within the County presently, we have an absolute obligation to protect our employees. For example, the mechanics that work on buses or cars or whatever, spray solvent... Ms. Yukimura: No argument with that. Mr. Sykos: Right, and so if in fact the dust has a health threat, then when our employees are sent to work on the West Side, if they are exposed to that dust that is an environmental hazard at work, which the County has a responsibility to protect our employees. Yes, this does skirt the entire issue of the rest of the public's exposure to this. I am simply pointing out that we have an in-house mechanism that could have provided for the testing which is going to occur in the future to define the parameters of what is actually occurring with chemistry in the air, soil, and water. So, rather than going through this process... Chair Furfaro: Lonnie, at this point, the Councilmember asked you a question, you responded to that question. That is out protocol for it. Mr. Sykos: My apologies. Chair Furfaro: Do you still want the floor JoAnn? Ms. Yukimura: No, I am through. Thank you. Chair Furfaro: Thank you, Lonnie. Mr. Watanabe: Felicia Cowden, and Felicia was our last signed up speaker. FELICIA COWDEN: Aloha. My name is Felicia Cowden and I am here to encourage the Council to respect the intention of the Charter Amendment petition. I realize that it has a lot of overlap with Ordinance No. 960 that we spent a lot of time on last year. This is different and I do want to say that Bill No. 2491, in the process, was pretty significantly neutralized in the public discussion and now through the courts, but the Charter Amendment is different still yet. Ordinance No. 960 basically, is asking for disclosure of pesticides. This Charter Amendment is a shift. It places the burden of proof onto the industry as well as the cost of regulation. Those are two (2) really important issues and a very significant change from simply disclosure. So, the outcome of which would be if we give the industry the benefit of the doubt and their agriculture practices are not creating contamination in the air, the water, and the soil around them, they would have no problem, what they are doing would be fine. However, if the testing proves that they are in fact drifting and contaminating the areas around them, then unlike Ordinance No. 960 this Charter Amendment truly provides safety for the people who feel that they are at risk or at the effect of the contaminations that are happening around them. So, I feel that by having this amendment placed on the ballot, and I have to just say, I was skeptical when I saw this at first. I really read through it pretty hard and have scrutinized the document. What putting it on the ballot does is it allows this public debate to go out into the field where people are COUNCIL MEETING 13 MAY 28, 2014 really, really actually talking about it. I have no doubt that the industry will do a highly financed information campaign to sway voters to see things their way, but having spoken at length with Bob Yuhnke who is in the room and I really hope that he speaks to the Council, the man is very, very skilled and I am impressed with how this document is founded in the Constitution of the County, the State, and the Federal government. The Charter is really the County's piece, but this is in agreement. I think it is not going to be that easy for lawsuits to happen against it. I think it will at least stand up in court. I think we can assume that they will take it to court. That is the strategy. So... Mr. Watanabe: Three (3) minutes. Ms. Cowden: Okay. Anyway, I feel good about this Charter Amendment. Thank you. Chair Furfaro: I have question for you. I will recognize Mr. Bynum, followed by Councilmember Yukimura. Ms. Cowden: Yes. Mr. Bynum: Hi, Felicia. Thank you for being here. I have had an opportunity to read through the Charter amendment as well. It is very lengthy, complex, and touches many aspects of the law. I am responding because you brought this up that you thought it would stand the legal test. Ms. Cowden: Yes, I do. Mr. Bynum: I just...I have the concern because of the experience of the past Charter amendments, both of which were overturned by the courts. So, while I really fully understand the intent and support it in terms of maybe taking the next step, I do not know that this is...that some of the legal complexities are going to be difficult for us, but I want to point out that the Charter is really clear that the County Attorney should review this and communicate with the petitioners about any legal concerns they have prior to its placement on the ballot to give the petitioners an opportunity to make changes should they choose to, right? That process has not been completed and followed in the past Charter amendments and I hope that it does because that, I see, as a responsibility of the County Attorney. Now, this County Attorney that we currently have was not involved in those previous response, is my memory, but it is important that we get his right. When we put things on the ballot, how frustrating is it to have the community put all of this time and energy and then have it overturned by the courts? It is terribly frustrating. I hope that...I do not want to see that occur again. So, I just use this opportunity because I may...to say that the Charter is clear about the responsibilities of the County Attorney in this. I trust our current County Attorney will meet those deadlines and have that conversation. I believe that the intention was all of that be very public and open or at some level when the parties choose. So, are you aware... Ms. Cowden: Do I a question in there? Mr. Bynum: ...of that process. Ms. Cowden: I am aware of the... COUNCIL MEETING 14 MAY 28, 2014 Mr. Bynum: Yes. Are you aware of that process? Ms. Cowden: ...process and I know that the County...I am not on the team. I am not on the Kaua`i Rising team. Mr. Bynum: Right. Ms. Cowden: But I know that the County did sit on this document for several weeks because I was pressing when do I see it, when do I see it because it was putting...we were having a dialogue on the air. I try and not bring things forward that are maybe not strong and it was sitting with the County for weeks, as far as I was told. I am enthusiastic that I see Bob Yuhnke came here. So, there is the opportunity for that dialogue to go one-to-one now. So, I am excited about that. Mr. Bynum: Right. Good. Thank you for your testimony, and I am not aware that...I want to find out what you mean by "sitting," but we will do that later. Ms. Cowden: Okay. Mr. Bynum: I do not know... Ms. Cowden: Maybe one of the Kaua`i Rising team can speak to that. Mr. Bynum: Yes. Ms. Cowden: Because that is who said, "Oh, the County has it and we are waiting." Chair Furfaro: I am sorry. JoAnn. Ms. Yukimura: Yes, I would like to know whether we have been sitting on it for weeks. I thought we received it, had to get some legal advice, and then put it on the agenda, but... Ms. Cowden: No, not the County Council, and really, one of these people need to be asked. It went into the County Attorney's Office to be reviewed was my understanding. If I was told accurately, this was maybe a month or two (2) ago because I really wanted to see it before I gave it airtime. Ms. Yukimura: Well, the County Attorney does not give advice to the petitioners' committee. Ms. Cowden: The Election Office. Something. They had to go through and look at it, is what my understanding was. Ms. Yukimura: Okay. Alright. I mean, I think there is a place where the County Attorney does interact in the process, but it is first...the threshold question is are there enough signatures? So, that still has to be determined. So, my... COUNCIL MEETING 15 MAY 28, 2014 Ms. Cowden: This was something that happened a month ago or so. Ms. Yukimura: So, my question to you, first of all, I want to commend you for your diligence and reading thoroughly through the proposed Amendment. I guess, for me, the threshold question is whether it is a Charter amendment or whether it is a Bill for an Ordinance. (Mr. Bynum was noted as not present.) Ms. Cowden: I looked at that. I contemplated that. I agree that it sets a very important threshold as a Charter amendment. The difference is if it was an Ordinance, it puts a lot of political pressure on the team members that are sitting in Council to be supporting it or not supporting it. So, it can very easily be overturned the next time around like this. Have you read it yet? Ms. Yukimura: That is not the question as to whether it is a Charter amendment or not. Ms. Cowden: Okay. Chair Furfaro: Excuse me, Felicia. I need to remind you. The Councilmember asked you a question. You respond to that question... Ms. Cowden: Okay. Chair Furfaro: ...not by putting a question back to her. Ms. Cowden: Okay. I just did not quite...I was trying to clarify so I could answer it better. Ms. Yukimura: Right. Chair Furfaro: And I will give some clarity at the end as I have checked with our staff. Ms. Cowden: Okay. Chair Furfaro: JoAnn, you still have the floor. Ms. Yukimura: Okay. So, I do not believe that the criteria you used for judging whether it is a Charter amendment or not is one recognized in law. So, my question is... Ms. Cowden: Okay. Ms. Yukimura: Do you not think, based on your comparison with Bill No. 2491, which was a Bill and the subject matter of Bill No. 2491, that this is in fact a Bill for an Ordinance? Ms. Cowden: Well, I want to defer to the fact that you are an attorney with thirty (30) plus years in County government. So, I do not want to question your authority on making that decision. From the amount that I do know and from just understanding the difference of an impact of being in the Charter COUNCIL MEETING 16 MAY 28, 2014 versus being an Ordinance where I feel comfortable with it being in the Charter, is that it is looking at the political subdivision of the County as is spoken to in the State Constitution that says the County has the right to protect the life, health, and property of their island or their County. To me, this was very fundamental in underscoring the right to help protect all three (3) of those. So, it seemed to me that this was at the core of the Charter, especially when we have seen preemption efforts happening routinely last year and in other years, and we can anticipate more of them will happen. The fear of preemption is what made Bill No. 2491 so virulent to be decided before the start of the legislative season. Ms. Yukimura: Okay. Ms. Cowden: So, I think that this...it contemplates that. It is very detailed. At eighteen (18) pages it is incredibly long. Chair Furfaro: Okay, you are way over here. Ms. Cowden: Okay. Chair Furfaro: You are way over here and I have been very liberal. Ms. Cowden: Alright. Chair Furfaro: She asked the question, you respond. I will respond to you. Ms. Cowden: I was doing my best. Chair Furfaro: You can see me on the next recess. I will give you the, what I would refer to as from the Council, the sequence of events here as to when the petition got back to us, and it has not been two (2) months ago. Ms. Cowden: Not to the Council. It did not go to the Council. Chair Furfaro: Very good. Just want to clarify that. Ms. Cowden: Yes. Chair Furfaro: Because ultimately, the authority to put it on the agenda is mine and I have done it within ten (10) days. So, just to answer the question. Ms. Cowden: Yes, okay, and I support that. Chair Furfaro: Okay. Mr. Rapozo. Oh, I am sorry, were you not finished, JoAnn? Ms. Yukimura: Can I just finish up? Chair Furfaro: Let me let JoAnn finish, Councilmember. COUNCIL MEETING 17 MAY 28, 2014 Ms. Yukimura: I just want to thank you for your very detailed thinking and I want to say that the Constitution may give the County the right or the duty to protect the health, but how we implement it is often through a law. That is the threshold question here. Ms. Cowden: Okay. Thank you. Ms. Yukimura: Yes. Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Chair, and thank you, Felicia for being here today. I guess my question as more and more testimony is being received, and it is really the fundamental difference between an Ordinance, an initiative if you will, versus a Charter amendment. I am not so sure that the signers of this petition knows the difference. Maybe some of them do, but I think there is clear case law that states the difference. I am just curious if anyone explained the difference of a Charter amendment, which the Charter is the guiding document of how government self-operates versus an Ordinance which is, for lack of a better term, local legislation. So, I mean, I am just curious if whoever was presented this petition was advised that...because as I read it, and I have read it, believe me. Ms. Cowden: Okay. Mr. Rapozo: It appears it is an attempt for local legislation, to legislate certain activities on Kauai. I just want to understand if you... Ms. Cowden: Well, I can answer for myself. I have been very busy so I only did a couple of sessions getting signatures, but I am a teacher and I do care very much that people are making wise decisions, and I had wished more people wanted to actually really read the document. I know that when I spoke with people, I explained very much what the difference is between a Charter amendment and an Ordinance because I do feel that is a very significant thing when people are signing for it. I really encouraged people to understand the difference and I will very much claim that I did not...was not part of the team that authored this, but I was surprised. I really took one (1) day and had five (5) things all got signed very, very effortlessly. People wanted to protect the West Side is what I saw. Mr. Rapozo: Again, I do not question the intent. We are obligated to follow a structure that is required by law and there is a significant difference between an initiative versus a Charter amendment. Ms. Cowden: Very significant. Mr. Rapozo: And I think that is the key. Now, I think Mr. Bynum talked about bhana. I mean, it is very easy to people to sign on an amendment to lower taxes or to cap taxes. You could probably get a lot of signatures to actually eliminate taxes altogether. Ms. Cowden: Yes. COUNCIL MEETING 18 MAY 28, 2014 Mr. Rapozo: But I think when you look at the structure that we are required to follow as far as how it gets on the ballot, Councilmember Yukimura said it best. We have the duty to protect the people are we are granted certain mechanisms in place via the Ordinance, the Resolution, and so forth, and then the public has an opportunity as well to enact local legislation through the initiative process. I just want to make sure we all understand the difference between the two (2) because it is a clear difference. Ms. Cowden: It is very significant. I respect your mana o on that. Mr. Rapozo: Well, thank you very much, and thank you for being here today. Thank you, Mr. Chair. Chair Furfaro: You are welcome, Mr. Rapozo. Mr. Hooser, you have the floor. Mr. Hooser: Yes, thank you for coming. Actually, I was going to ask the Chair a question. Because of the issues that have been raised regarding...I believe one of the primary drafters anyway is here. If we could ask Mr. Yuhnke and perhaps Mr. Shooltz to address the same issue rather than Ms. Cowden. Chair Furfaro: I was under the impression Mr. Yuhnke was going to sign up because I met with him yesterday and Mr. Shooltz. I told him that if they were here to sign up, they should have been the first speakers. Mr. Yuhnke is here? Ms. Cowden: Yes. Chair Furfaro: Is he here? Ms. Cowden: Yes, he is right here. Chair Furfaro: Very good. I will be calling you up next because she is out last speaker. Mr. Hooser: I did not have any questions for Ms. Cowden. I just felt that the issue in question should be addressed by the people closest to the Ordinance, I believe. Thank you. Ms. Cowden: Yes. Thank you very much... Chair Furfaro: Felicia, I just want to make sure you understood. The Council's receiving and the critical path here. There is time for this still to go under a legal review. Ms. Cowden: I am very excited to hear that. I respect that that is important. I am glad that Mr. Yuhnke has come back so that this very skilled group can help craft something that is appropriate and not problematic. Thank you. Chair Furfaro: Is there any other speakers that have not signed up yet other than Mr. Yuhnke? Would you come up now because COUNCIL MEETING 19 MAY 28, 2014 Mr. Yuhnke will be our last speaker? Can you introduce to us your name so I can put you on the roster? MARGHEE MAUPIN: Yes. My name is Marghee Maupin. I am a nurse practitioner, primary care provider on the West Side. I am here to strongly support the Charter Amendment to protect the people and environment of Kauai. Just a few notes I wrote while I was in the back there. What is going on in the West Side is very careless. It is similar to my writing prescriptions without checking, say drug interactions. Anytime I write a prescription for a medication, up comes the other medications that the patients are on and they are cross-referenced to see if there is any possibility of harm. What is being done on the West Side is nothing like that. There is no oversight of the effect of GMOs and the effect of chemical interaction like drug interactions are done. I think so many scientists and doctors have said are the importance of the precautionary principle, which I know a lot of people are really tired of hearing, but that is what we had to follow in medicine and that is what is not being done by the chemicals on the West Side, and because of the close proximity of the people and them doing experimentation on agrochemical seed corn, the experimentation is also being done on the people. The people are part of the experimentation. They are the lab rats because they are in close proximity and that is very scary to me as a primary care provider having no process to report the suspected illnesses from exposure to. With this Amendment, I feel at least no so alone that there are people paying attention to the possibility that people are ill and I just do not feel so alone because right now I feel really alone. I still have not found a proper way to report and have that report go through and have there be any real response through the Department of Health or otherwise. So, I guess that is all I had to say about it. Thank you. Chair Furfaro: Thank you very much. Klayton, are you going to speak? Yes? Please record Klayton. KLAYTON KUBO: Klayton Kubo, Waimea, Kauai. I was in real big favor of Ordinance...Bill No. 2491, Ordinance No. 960, but I come to a realization that that is not going to put the burden of proof on them, meaning the seed companies. They are still saying that we have to prove, and like I told a few managers that why I have to prove, no. I am not the one that is spraying the "- cides," meaning the chemicals. So, this Charter Amendment, ballot initiative for in my heart it is telling me it is a good thing because it is going to put the burden of proof on them, meaning the seed companies. I am kind of tired already of thinking in my head that my son is collateral damage. It is very disturbing. I guess you have to really live over there. Sixteen (16) years already I lived downwind of one (1) facility. Sixteen (16), and when is the day going to come that maybe somebody is going to tell me, "You know what? You are looking pretty sickly. You better go and go see the doctor." I would never want that to happen and especially for my son that was exposed all of his life since he came back from Kapi`olani Medical Center. That is the kind of worry that I have living downwind of a facility. I know it is your folks' decision. I hear all kinds of laws coming out. You folks said something about law something. Yes, where is the laws that are going to protect the people? Where is that law? This is not right. We have to prove, no. No way. Sitting in my house on my chair in my room, I have to smell like a chemical smell coming through my house. What is that? Then, the response is going to come from Lihu`e. It is going to take one (1) hour to come down to Waimea. No. This has to stop already. This has to put it...we have to come to the realization that human beings are not collateral damage because of these companies. They are billion dollar corporations... COUNCIL MEETING 20 MAY 28, 2014 Mr. Watanabe: Three (3) minutes. Mr. Kubo: ...billions of dollars. Yes. My son is going to be collateral damage? Wow, wait a minute. There are all kinds of stories out there that you folks, yourselves, has to seek out. Please go out there and seek out from medical professionals because hey, it seems like us residents, we only can say so much because why? We do not have a title before our name. Chair Furfaro: Okay, Klayton. I have heard your concern and I have let you go over the time, but I have heard what you have to say. Mr. Kubo: I think I deserve to go over the time, but I will respect you. Chair Furfaro: I appreciate that. Mr. Kubo: Any questions? Chair Furfaro: Okay. Our last speaker will be Mr. Yuhnke. ROBERT YUHNKE: Thank you, Mr. Chairman and Councilmembers. I am here today on behalf of... Chair Furfaro: Excuse me. First, if you could introduce yourself for the record. Mr. Yuhnke: My name is Robert Yuhnke. Chair Furfaro: And also, at the discretion of being the Chairman and you were the composer of this piece, I will allow you six (6) minutes. So, go right ahead. Mr. Yuhnke: Well, Mr. Chairman, I was not intending to make a direct statement today. We have been attempting, as we did you yesterday, have one-on-one meetings with each Councilmember so that we can have time to explore whatever your concerns are. We think it is very important that each one of you understand what the thinking process was that we went through in putting this together. To the extent that you have issues or questions, we can share that thinking with you and hopefully elicit your support ultimately. So, I do not have a direct statement. The Sponsor Committee spoke to you about those questions and I understand that Councilmember Yukimura has a question and some of you others may have questions. So, it may be more expeditious for everyone if I just respond to your questions. Chair Furfaro: Okay. I understand what you are sharing. Let me go to Councilmember Yukimura, you indicated you have questions. I will go to you first, and then I will go to Mr. Hooser. Ms. Yukimura: Yes. Thank you, Mr. Yuhnke for being here today. I think it is important that you speak to us publicly as well as one-on-one because I think members of the public need to hear the dialogue since this is very much a public issue. Mr. Yuhnke: Yes. COUNCIL MEETING 21 MAY 28, 2014 Ms. Yukimura: So, I appreciate your presence and your willingness to engage. I want to say that I have read the proposed amendment and I find it very creative and very thoughtful. I think there is some very excellent proposals in here. I do not believe it is a Charter amendment and I guess I would like you to address why you think it is a Charter Amendment rather than a Bill for a law. Mr. Yuhnke: Well, I think it does a number of things that can only be done through the Charter, first of all. Ms. Yukimura: Okay. Mr. Yuhnke: For example, creating this Office of Administrator of Environmental Health is the kind of thing that is appropriately done through the Charter just as you did with the County Auditor recently. One of the things that we have done in this is to not only create that office, but then to assign certain responsibilities to that officer when selected and to create the procedures for the selection and appointment of that officer, which includes a role for the Citizens Advisory Committee, the Environmental Health Advisory Committee, which is also created through this language, and then having the Council, rather than the Mayor, select the Administrator. Those are all issues that we felt were appropriately addressed in the Charter because those are the kinds of things that in the past, have been addressed through the Charter, such as with the Auditor. Then, as a practical matter, most of this Amendment establishes procedures for decision-making. So, what we have done here is to establish a process where the companies would be required first to test outside the property line how much of the materials they are spraying on the land are escaping from their properties into the ambient air, into the waters of the State, and into adjacent lands. That then triggers a process where if the companies want to continue those activities, they would then have to show that it is safe. That process involves authority that we have assigned to this new Administrator position, the Administrator of Environmental Health. The role of the administrator is to not make the decisions. The role of the Administrator is to convene panels of experts. So, again, this is basically procedural, and in creating those panels of experts is the kind of thing that we think, again, is very appropriately part of the Charter. The panels of experts then would create a report that is then given to the Council. So, the Council ultimately makes the final decisions here. So, what we have attempted to do, hopefully successfully, is to create a process for decision-making in assigning certain responsibilities to different levels of decision-makers with the ultimate authority coming back to the Council to make the final decisions and then providing a mechanism for the public to review those decisions if they want. So, those kinds of decision-making procedures, we thought, were appropriately a part of the Charter. Ms. Yukimura: Okay. I can see where creating a Department of Health might be a Charter amendment. I really think that the other things, the specific regulations just like Public Works, Engineer, regulates all sorts of things, is properly legal just like our Open Space Commission. After we did a Charter amendment creating it, we did an enabling Ordinance to create the details. So, to me, that is a question that is up in the air and may have to be decided by the courts. Certainly, the creation of an advisory committee of panels like we did with the Joint Fact-Finding Group that we are having in place now, are all things created by Resolution or Ordinance. So, I guess, it is just a matter of a disagreement, but... COUNCIL MEETING 22 MAY 28, 2014 Mr. Yuhnke: But Commissions are created in the Charter. Ms. Yukimura: But it is a threshold question because that will determine how many votes...I mean, sorry, how many signatures are needed. So, it is a threshold question that has to be decide and our courts have said it is not the form, but it is the actual substance of the proposal that needs to be looked at. So, I guess, that is where we will have to go. Thank you very much. Mr. Yuhnke: Alright. Thank you. Chair Furfaro: I am going to give the floor to Mr. Hooser and then to Mr. Rapozo for questions. Mr. Hooser, you have the floor. Mr. Hooser: Actually, Chair, I do not have any further questions. I just thought it was good for Mr. Yuhnke to come up to expand on his thoughts regarding the Ordinance versus Charter discussion. Thank you. Chair Furfaro: I will go Mr. Rapozo. You have the floor. Mr. Rapozo: Thank you, Mr. Chair, and thank you, Mr. Yuhnke for coming up and I appreciate you being here. I would agree with Councilmember Yukimura that the establishment of a new Department definitely falls within the Charter Amendment, but how, and I am asking because you are the drafter. How does this escape the local legislation definition? How does this...as you look, a lot of the items in the actual Amendment put on requirements for entities outside of the County, meaning those businesses that operate, which would be, I think, considered local legislations. In your opinion, how do we escape that local legislation definition of some of what is in here because an audit...the audit, when we separated Parks, the Charter amendment did not include the specifics as to what the Parks Director or the Parks Department would do in the event someone let us say smokes in a park or drives on the beach. That was all done subsequent through Ordinance because I think that is what local legislation is. So, help me understand this. How do we get away from that local legislation, what I believe, is paramount in our decision whether or not this is an initiative or a Charter amendment. Mr. Yuhnke: Well, I think most of what we have put in here has to do with the allocation of authority between different entities within the County. Those are issues that properly fall within the Charter. So, for example, when we have spelled out the relative responsibilities of the new Administrator of Environmental Health, the Administrator does not make specific decisions, ultimately. That is the kind of thing that should be spelled out in the Charter. What is the responsibility and the authority of that officer? His responsibility is to accept requests from the companies for exceptions for some of the requirements and then to review those with panels of experts that are convenes by him. Those panels of experts, under the direction of the Administrator, will then present recommendations to Council for what the Council should do by Ordinance. So, all of those are structuring different parts of the County, and how those different entities would perform, and what their limits on authority are. So, those are the kinds of things that are properly spelled out in the Charter, we believe. Mr. Rapozo: In here you have civil and criminal penalties. You have penalties in there that are mandated. You have the shell language with penalties. That is legislation. That is not Charter. I do not know how, and really... COUNCIL MEETING 23 MAY 28, 2014 Mr. Yuhnke: Well, Mr. Rapozo, I noted that there are other provisions in the Charter that establish penalties. Mr. Rapozo: Penalties for violation of the Charter. Mr. Yuhnke: For prudery. Mr. Rapozo: Right. Mr. Yuhnke: Specifically. Mr. Rapozo: Right, obviously, but you are citing penalties as if this was a law, a Bill, and I think that is the problem I am having. I mean, it can be, and I am expecting the Attorney's Office or someone to work with the group that if more signatures are required, if this is in fact an Ordinance, a Bill, or an initiative then that is fine. I think that is where it belongs, but it just triggers a different requirement, but in this, it is very specific and it targets...I mean, it goes specifically to the violations that there shall be assessed fine of ten thousand dollars ($10,000) to twenty-five thousand dollars ($25,000). That, to me, is not Charter language. That is not. That comes after the office is established, much like as I used the example of the Parks Department. That if in fact there are violations throughout the park rules and park laws, then yes, in those individual Ordinance would come the penalties. The Charter is not where that belongs. I am just asking you, convince me that I am wrong because I have only been doing this for ten (10) years and we have been through a couple of Charter amendments that has cost this County a lot of money because we failed to recognize the invalidity of the language and I do not want to go through that again. I am not going to go through that again. We need to clear this up before. There is a mechanism in place, and I am sure you understand, the initiative route. To me, I think, that is where this belongs. Again, I am just asking you the question. Correct me if I am wrong. I am asking you in all sincerity for some guidance. Mr. Yuhnke: Well, our approach to that was the same as for the language in the Charter now for prudery, and that if the Charter could establish crimes for prudery and penalties, that it could for other crimes too. Mr. Rapozo: But the prudery would be for anyone that violated the Charter, anyone that...the public is not bound. You are not bound by our Charter. The Charter is the government's governing mechanism, self-governing. That is how we...that is the structure of our government in the Charter as is the Constitution. Mr. Yuhnke: Yes, right. Mr. Rapozo: This extends the penalties to people outside of the County beyond the Charter and that is where I am having a difficult time. I am just asking if that discussion was ever had. I am not sure who the attorney...are you the attorney? Mr. Yuhnke: Yes. Mr. Rapozo: Okay. So, I am not sure if you had the opportunity to evaluate the difference in our Charter anyway and our initiative versus Charter amendment process. What was your...if you are telling me, "Oh, we COUNCIL MEETING 24 MAY 28, 2014 just used the guidance of the Auditor," I agree with you that we should...if in fact the people believe we should create an Office of Health, then that is fine. We will create that Office of Health, but subsequent to the passage is now where the County, the Council, and the Administration comes up with the rules and the laws, as to what that office does. The individual duties and the specific duties of that office, I do not believe should be in the Charter, and I am just asking for you to show me if I am not right or if I am wrong or what argument did you or would you use that I am wrong? Mr. Yuhnke: Well, the powers and duties of the Mayor, the Council, and other officials are spelled out in the Charter. Mr. Rapozo: Correct. Mr. Yuhnke: And that is what we have attempted to focus on here. Mr. Rapozo: I hear where you are coming from. I guess, like JoAnn said, it is basically a disagreement. We cannot...I do not believe we can regulate or legislate actions of a Department. We can set the duties, authorizations, and so forth of the Departments like we did in the Auditor, like we did in Parks, and like we did in HR, not HR, but in the various Departments that have been created, but I do not believe the Charter is the document that provides a regulation legislation, for that office. Again, I will seek further legal counsel, but I believe this is an Ordinance and would require the initiative process. That is just my... Mr. Yuhnke: Some parts of it. Mr. Rapozo: Oh, yes, because I agree. Some of it, the establishment of the office falls directly within the, I believe, the Charter amendment process. Thank you. Chair Furfaro: Okay. I want to say thank you very much to your group for meeting with me yesterday. I shared my concerns and they are some that I discussed with you. You just acknowledged that there are pieces in this that I read that this is a proposed Bill or an Ordinance, and then there are other pieces that indicates to me it is a Charter movement. I got more specifics in my notes that I will give you, but that is one of the particular pieces. I also think the previous case of Nakazawa versus. Baptiste in our own legal challenges here, you should get familiar with that. I have some concerns in Section 33-2 as it relates to the certain amendments that prohibit conduct or activities that clearly, are registered by the political subdivisions of the Federal government and the State. That could be challenging for us as well as point 4 that deals with the commerce clause of the United States. I will get that to you, but that is kind of where I am at. I want to make sure we understand, the Resolution has an opportunity as a Resolution informs that might lead to an Ordinance. This is a Charter amendment which our time frame is one that you would work with the Attorney's Office on getting the appropriate version and the deadlines for that are sometimes somewhere in the third week of August. This will provide a time for you to work with the County Attorney's Office on these concerns, but thank you for being here and thank you for meeting with me yesterday. Mr. Yuhnke: Well, Mr. Chairman, we really appreciate the time you gave us yesterday and if any of the other Councilmembers would like, I COUNCIL MEETING 25 MAY 28, 2014 could share some of the answers that we gave you yesterday to the questions you raised. I do not know if that would be of interest. Chair Furfaro: Well, are you here for a while? Mr. Yuhnke: I am on the island until Monday night, yes. Chair Furfaro: I will continue to encourage you to have dialogue with my colleagues, but I am going to give you my questions before the end of the day. Mr. Yuhnke: Thank you very much. Chair Furfaro: Any other questions here? If not, I am going to...Mr. Hooser. Mr. Hooser: I just had a brief question for the County Attorney. Chair Furfaro: Sure. I am going to ask you if you could step away and we are going to bring up the County Attorney. Mr. Yuhnke: Thank you. (Mr. Bynum was noted as present.) MONA W. CLARK, Deputy County Attorney: Mona Clark, Deputy County Attorney. Mr. looser: Thank you. Obviously, you heard the discussion that we have had today, and it is my understanding that the provisions that support this process where the citizens get signatures and amend the...put things on the ballot, calls for the County Attorney consulting with the petitioners. Ms. Clark: After all of the signatures are obtained to meet the threshold under Article XXIV, then there is a consultation...there may be a consultation with the County Attorney. Mr. looser: So, after the...just to repeat so I am clear. After the signatures are authenticated and determined that there are sufficient signatures, then there is a period of time when the County Attorney may consult with the petitioners' committee? Ms. Clark: Yes, that is the process. Mr. Hooser: And then the County Attorney could then suggest amendments to satisfy concerns that the County Attorney's Office might have? Ms. Clark: That is correct. Mr. Hooser: And then it would be up to the petitioners to accept or not accept those suggestions. Is that correct? COUNCIL MEETING 26 MAY 28, 2014 Ms. Clark: That is the process that is set out in the Charter. Mr. Hooser: So, what determines whether or not the County Attorney...you said the County Attorney "may" consult. So, it is just a choice for County Attorney's Office whether they want to offer suggestions or not? Ms. Clark: "May" indicates that it is discretionary. Mr. Hooser: Okay. So, is it possible...I know. I hate to speculate. Ms. Clark: I have no problem with Mr. Yuhnke contacting me and talking with me about... Mr. Hooser: Possible ways to improve the Ordinance? Ms. Clark: Right. Mr. Hooser: Okay, but that actual change is, if any were to be made, would not be made or proposed until after the signatures have been verified? Is that correct? Ms. Clark: That is the timing that is set out in the Charter. Mr. Hooser: Okay. Great. Thank you very much. Ms. Clark: Sure. Mr. Hooser: That is all the questions I have, Chair. Ms. Yukimura: I have a question. Ms. Clark: Oh, certainly. Chair Furfaro: I am sorry. Mr. Rapozo was before you and he has a follow-up question, and then I will go to you. Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Chair. Thank you, Mona, for being here. I guess the dilemma I am having is there is a difference in the requirements for the number of signatures, initiative versus Charter amendment. There is no doubt in my mind this is an initiative. I mean, that is just my own personal experience and the fact that we have been doing this long enough to know. This is an Ordinance. It is clear, to me, there is no doubt in my mind. So, I do not know how or why we would encourage sending this forward to the next step if in fact we believe it is an initiative because it causes some, number one, it causes some potentially false hopes on the part of the petitioning committee because I would hate to see this thing go through, they verify the signatures, it is enough, and then in the discussions with you, this is an initiative or it is potentially an initiative, and then they do not have enough signatures, versus letting them know up front that this is...and I am letting them know up front today that I believe this is an initiative and I suggest you go get more signatures because I think that is where it COUNCIL MEETING 27 MAY 28, 2014 belongs if this is an initiative. It is clear, but I would hate to see we go through the process only to tell these people later that you did not make it. It does not meet the requirements of the Charter amendment. Is there any way we can have that dialogue before the signatures are verified? Ms. Clark: As I said, I have no problem with speaking to Mr. Yuhnke. I would be more than happy to. He is welcomed to call me at my office. Mr. Rapozo: No, but you said that after the signatures. You are saying that it can be before? Ms. Clark: The process set out in the Charter is after you get the signatures. Mr. Rapozo: Right. Ms. Clark: That is the timing that the Charter sets out. Mr. Rapozo: Okay. Ms. Clark: If Mr. Yuhnke wants to call me and talk to me beforehand, he is welcomed to do so. Mr. Rapozo: I appreciate that. I believe that needs to happen. I believe that...we are 0:2 on the Charter amendment scoreboard, this County, in recent years and I do not want to be 0:3. The cost that comes with those losses are not cheap and if we can fix it in the beginning and if it is an initiative, then let us just do it right. Let us just do it right. I think that is where it belongs. I definitely have a hard time supporting the receipt of this today. I will be more comfortable...well, I will talk about that in the discussion. Thank you. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: So, before it can go through the process of going...the formal discussions with the County Attorney you have this threshold question of whether how any signatures are required. That has to be determined, will it not, by the Clerk who is going to certify whether the signatures are valid voters? Ms. Clark: The Clerk certifies, under the Charter, whether the signatures are valid. An amendment needs to be presented to the Council and that is what he certifies as to. Ms. Yukimura: Well, if we receive it now, does it not then go to the Clerk to check all of the signatures for whether they are registered voters? Ms. Clark: That is correct. Ms. Yukimura: And then does he not come back and say that there are the valid number of signatures required or there are not? Does he not tell us that because without the valid number of signatures, it will not go on the ballot? It cannot go on the ballot because it violates the Charter. I mean, I did this with twenty percent (20%) of those registered in the last General Election for the Nukoli`i COUNCIL MEETING 28 MAY 28, 2014 petition. I have done this and we have gone through a lot to make sure we had enough valid signatures. As I recall, the Clerk Tatsuo Kato, I think it was Tatsuo, at that time, had to check all the signatures, but he had to know how many were required in order to say they have made the required number of signatures or they have not. So, at some point, there has to...before it goes to work with the attorney, you have to determine whether it is a Charter amendment in fact or a Bill for an Ordinance. Ms. Clark: And what portion of the document is one and what portion is something else. Ms. Yukimura: Well, I am assuming that if it is both, you need the requirement of twenty percent (20%). Ms. Clark: The document may be amended to be... Ms. Yukimura: Well, it cannot be amended now unless it goes back to the petitioners and they recirculate and amend their petition, right? Ms. Clark: No. I just meant the portion that is...that may be validly a Charter amendment, would require a certain number of signatures. The portion that may be validly an Ordinance would require a different number. Ms. Yukimura: Right. Ms. Clark: And so... Ms. Yukimura: But, why would just put one (1) portion...I mean, they are so integrated. To try to separate them out would be...I mean, I...anyway. It is up to the petitioners' committee to do that, but our part as government has to be to follow the rules of the Charter and it either is a Charter amendment or it is a law, a petition, a Bill for a law, an initiative, right? Ms. Clark: I think that portions of it can be one thing and portions can be another. Ms. Yukimura: Well, then how many signatures are you going to need? Ms. Clark: The portions that are Charter amendment would need a certain number and the portion that are initiatives would need a different number, and it would have to be... Ms. Yukimura: If they are separated? Ms. Clark: It would have to be separated. Ms. Yukimura: Okay. Thank you. Ms. Clark: Are there any other questions? Mr. Hooser: Yes, there is. COUNCIL MEETING 29 MAY 28, 2014 Chair Furfaro: I am sorry. I had to check on something. I just want to make sure we are all clear. The five percent (5%) for Charter amendment is based on the last election's voter registration and for an Ordinance, it is twenty percent (20%). Ms. Clark: That is correct. Chair Furfaro: From the last election. I just want to verify that because I heard there is a number of people that are registering and soliciting people to register to vote now, but the count will be based on the past election? Ms. Clark: That is correct. Chair Furfaro: Okay. I just wanted...because I am hearing what the audience is saying. So, you may have a legal question there as well to be prepared for and I will send it down. Now, Mr. Hooser, you have the floor. Mr. Hooser: I just want to get a little more clarity. The conversation seems to be going in circles. So, I would like to restate and get your thoughts if I could. We have a document in front of us and there is debate whether or not it is more appropriately introduced as an initiative or a Charter amendment. Is it an Ordinance or a Charter amendment? That is basically the discussion. The petitioners who are bringing that discussion forward believe that it is suitable for a Charter amendment and they have targeted those signatures for a Charter amendment. Some of my colleagues have indicated that it is really rather an Ordinance and there should be more signatures, but I believe what I heard you say is that when the...after the petition signatures are verified at the level of a Charter amendment, which is what is proposed, then it is possible that the County Attorney could recommend changes and/or I believe the petitioners could just offer...could amend it at that point. If they concluded that well, maybe there are parts in there that should be in an Ordinance, they could amend it to meet the requirements of the Charter amendment and live within those signatures. That is correct? Ms. Clark: Yes, if they...yes, for the portion that is a Charter amendment. Mr. Hooser: So, there is two (2) paths then or three (3) actually, I guess. One is if it was determined there had to be more signatures it is an Ordinance. The other one is to amend it down, if you would, to perhaps make it less prescriptive to meet the Charter amendment provisions and keep the number of signatures or to go with the third path that would be to go with whatever it is and see what happens at the court. I just want to make it clear that it is possible and not an unusual circumstance if you would, you changes to be made with the consent of the petitioners' committee to make it acceptable or more acceptable if you would... Ms. Clark: Yes. Mr. Hooser: ...to get fit Charter criteria. Ms. Clark: Article XXIV gives that authority to the petitioners' committee to accept the changes that may be proposed. COUNCIL MEETING 30 MAY 28, 2014 Mr. Hooser: So, the County Attorney's Office could recommend changes intended to make it comply with the requirements of a Charter amendment if in fact you had doubts on that and they could accept those changes if they wanted to move forward or not? Ms. Clark: That is correct. Mr. Hooser: Okay. Thank you. Thank you, Chair. Chair Furfaro: For myself, clarity. That is the recommended changes to the committee of three (3) or five (5) that are... Ms. Clark: Right. I believe there are five (5). Chair Furfaro: ...announced. I just needed to repeat that for me. JoAnn and then Mr. Bynum. Ms. Yukimura: What if the amendments are so substantive that they change the nature of the proposal and that those who wanted it signed it in the first place may be in question that they actually changed the whole character of the proposal? Ms. Clark: Well, the petitioners' committee would make a decision whether they wanted to go with the recommended changes. Let me... Ms. Yukimura: So, the County Attorneys would have to follow their own guidance in terms of what is such a substantial change that it changes the whole character of the proposal that was signed for by the petitioners? Ms. Clark: Let me see. Ms. Yukimura: Or is that something you have to research further? Ms. Clark: Whether it totally...whether they would be required to throw out the whole thing? I do not think... Ms. Yukimura: No, no, whether the changes are so... Ms. Clark: As a Charter amendment? Ms. Yukimura: ...substantial that they change the nature. I mean, you cannot say anymore that the people who signed for it were the ones who wanted to have that piece on the ballot. Chair Furfaro: Excuse me. We are going to need to take a recess. Ms. Clark: Okay. Chair Furfaro: Okay. That will give you ten (10) minutes to organize your response... Ms. Clark: Yes. COUNCIL MEETING 31 MAY 28, 2014 Chair Furfaro: ...to a couple of these questions. Ms. Clark: I appreciate that. Chair Furfaro: Members, okay, appropriately we need to take...we have been almost eight (8) minutes over the time allocated by our contract. So, we are going to take a ten (10) minute recess and please, be attentive to the time. We are in recess. There being no objections, the Council recessed at 11:23 a.m. The meeting was called back to order at 11:37 a.m., and proceeded as follows: (Ms. Yukimura was noted as not present.) Chair Furfaro: We are back from recess. I would like to call up the County Attorney again, please. There being no objections, the rules were suspended. Chair Furfaro: Thank you. After listening to Councilmember Yukimura and Councilmember Rapozo, there seems to be a real question here as to what is the sequence to determine if this is a Charter or an Ordinance, okay? That seems to be a real interesting subject that needs to be determined by the County Attorney's Office, in my opinion. I want to know as if we receive the item today, and we have this date of the third week in August to have these determinations made, I am not really sure if you declare it more an Ordinance that we can continue to work on the piece, and when I mean work, I mean, have it read, printed, and ready for ballot. Is there any other options here that the item would in fact, maybe, be reviewed by the County Attorney's Office and the Clerk to determine what we have here exactly before we receive it? (Ms. Yukimura was noted as present.) Chair Furfaro: Is there any, that is one (1) of my questions. Is there any way to determine that? Ms. Clark: The Charter does not set forth a procedure for the submission of an illegal amendment, an amendment that does not meet the threshold requirements for a Charter amendment. It anticipates that what would be submitted would fall within the parameters and therefore the question is not addressed directly. The guidance that is provided by the Charter is that the County Attorney opines after the verification, but the threshold question is of course whether it is an amendment and the process does not commence unless it is an amendment. If ninety-five percent (95%) of what is presented is not a Charter amendment, but an Ordinance, it would be more appropriately reviewed by the County Clerk as to whether it is sufficient of deficient under Article XXII. Mr. Bynum: Under Article...I am sorry. I did not hear that. Ms. Clark: Article XXII deals with initiatives. COUNCIL MEETING 32 MAY 28, 2014 Mr. Bynum: The Clerk should...the Clerk's Office should...I am sorry. May I ask a question? Ms. Yukimura: They certify the signatures. Ms. Clark: No, let me tell you the process that is set out in Article XXII, is the Clerk does the initial certificate of whether it is sufficient or not. That is the process. Then it goes to the Council and the Council can agree or disagree with the determination that is made. Chair Furfaro: Okay, let me restate my question. Let me restate the question. Is there any way that the County Attorney's Office can work with the Clerk to determine what we have here first? Ms. Clark: Yes. Chair Furfaro: Is there a way to do that? Ms. Clark: Yes. Chair Furfaro: And those are along the lines of the questions that have surfaced from Mr. Rapozo and Councilmember Yukimura, and I am trying to find a way to get that clarified for the Council, and that could happen? Ms. Clark: Yes. Chair Furfaro: And that would happen by us deferring today? How would that happen? Ms. Clark: I think if you deferred, then we would respond and present you with an opinion as to that. Chair Furfaro: Okay. Tim. Mr. Bynum: First I want to apologize that I had to step out during this discussion. I had to, and if anything I say is redundant, I apologize. The Clerk just determines whether there is sufficient legal signatures. That is the entire role of the Clerk is. Is it not? That is a question. Ms. Clark: That is the entire role under Article XXIV. Mr. Bynum: Yes. Ms. Clark: He has a different role under Article XXII. Mr. Bynum: And explain that to me briefly. Ms. Clark: It comes to him, he issues a certificate as far as sufficiency, that certificate lays out the deficiencies... Mr. Bynum: Including legal deficiencies? You think the Charter contemplates that the Clerk is going to discuss legal deficiencies? Ms. Clark: I think he can discuss a number... COUNCIL MEETING 33 MAY 28, 2014 Chair Furfaro: I need to clarify myself if I can for a moment. Mr. Bynum: Okay. Chair Furfaro: He needs to find out if it is a cat or a dog. Ms. Clark: Right. Chair Furfaro: Okay? I do not what he is certifying, and the way to find out if it is a cat or a dog is have some discussion with you. That is my... Ms. Clark: Yes, we can do that. Chair Furfaro: That is my point. Mr. Bynum: May I continue? Chair Furfaro: Thank you. Mr. Bynum: Sure. I am uncomfortable where this is going because it is different than my understanding, and you are right. The Charter gives us guidance, but it does not give us clarity about how to proceed. So, I am interested in what you are saying. I am glad that this discussion is happening now because that is what is the problem in that past, that this did not occur, in my opinion. So, what is the...if the...I fully intended to pass this and take whatever Council action is necessary to put this Charter Amendment before the people. However, as I have written to your office on April 26th, I am encouraging that this review happen up front, transparent, and the Attorney's Office engage the petitioners with any legal issues, but I think that happens after we certify the signatures, was my understanding or my read of the Charter. It does not mean it is a perfect read because like I said, it is...it kind of guides us, but it does not give us these specifics, but to me, it is like the Clerk's role was certify whether you have sufficient signatures. Then the County Attorney is going to have this review and engage with the petitioners, and that clearly is intended by the Charter in my mind, that that process occur. That is why I wrote your office on April 26th and said, "Please do not wait for the signatures to be certified. Please start this review now because the timeframe is so crunched," and as you said, the Charter Amendment is extensive in its language. It is not a simple thing to review, I would assume. So, I have asked a question here. It is like to me, it is the Clerk is about certifying the signatures, then the Charter says it is going to go on the ballot, and then there is this process where you can chime in and say, "Well, gee, you may have legal challenges here and"...have I got this right so far? The part that confuses me is about the Clerk saying that whether this is sufficient. I thought that was just related to signatures. Ms. Clark: Well, it is more extensive in an initiative then it is with a Charter amendment. They are totally different types of processes, reviews, and vetting that go on. Mr. Bynum: I see. Ms. Clark: But it is correct that Article XXIV, which is the Charter amendments, requires that a Charter amendment actually be submitted to this body. COUNCIL MEETING 34 MAY 28, 2014 Mr. Bynum: Vetted through this body? Ms. Clark: Submitted, I said. Mr. Bynum: I am sorry. Ms. Clark: A Charter... Mr. Bynum: Okay, good. Ms. Clark: The premise of Article XXIV is that a Charter amendment is being submitted, and if a Charter amendment has not been submitted, then the process cannot go any further through that. Mr. Bynum: Okay. Let me just clarify that one thing and then I will pass or wait. Are you saying that we legally cannot start a review of a Charter amendment we know until a certain threshold is met? Ms. Clark: I am saying that the process set out in Article XXIV is for Charter amendments, and if you do not have a Charter amendment before you, then Article XXIV is not in effect. Mr. Bynum: Okay. I guess what I am saying is we have a Charter amendment before us. It has been submitted as a Charter amendment. Now, I applaud the dialogue about whether what portions are appropriate for this, but is that not what your office engages with the petitioners? They have submitted a Charter amendment. I mean, that is a fact, right? They have submitted it in that form. Ms. Clark: Actually, Nakazawa versus Baptiste, the court discusses specifically whether form or substance triumphs, and it says substance triumphs over form. So, just because somebody calls something a particular item, does not make it that item. It remains whatever the substance of the document is. Mr. Bynum: So, I do not want to belabor this, but I will just play this out. That is what the court said in reviewing a Charter amendment, right, and that is why we need to have this discussion, so we avoid these things on this one and in the future because it is like, if you or office says, "Hey, this is not a Charter amendment. You folks ought to do this," then the ball is in their court and they get to choose what they are going to do with it, and if they follow your advice so be it. If they do not follow your advice, it still gets to go on the ballot and the people get on vote on it, in my mind. I do not think we are empowered to say, "No, it does not go on the ballot," and if we are, I have to be convinced of that. This is news to me, that when you submit sufficient petitions, you go on the ballot, right? Now, let us tell you what the legal problems up front to give you a chance to fix it, and if you choose not to, then when the court overturns it, you were forewarned, right? Ms. Clark: The trouble is we have been advising...I believe the Clerk's Office has been advising consistently to the petitioners that they needed to have an attorney address the petition for them. They needed an attorney who was representing the petitioners. COUNCIL MEETING 35 MAY 28, 2014 Mr. Bynum: Has the correspondence been supplied to this body? Ms. Clark: No, but they have told them at every occasion possible, to get legal advice. I think that is what has occurred, that they have an attorney is something that was new to me today. I represent the County. I cannot represent the petitioners in saying, "This is how I advise you to draft your document in this sort of intimate way that would be required with this particular document that is before the body." Mr. Bynum: I mean, that makes sense to me. Ms. Clark: Because then I would be ending up essentially, suing...in argument to myself later on down the road and that is something that we want to avoid. So, we have not had somebody that we could address those sorts of concerns with because I do not want to...I cannot give advice to the petitioners on the level that would be required to make this a valid document, amendment. Mr. Bynum: Okay. I really understand what you just said in that distinction. You are not going to help them write the amendments that you think are sufficient, but your role is to say these are problematic under the law, in our opinion, and then it goes to their legal people to determine if there is a fix. If there is a fix, you are not going to tell them how to do it, but you are going to inform them about any potential concerns, correct? Have I got this right? Ms. Clark: Right, and we do not normally have a role under the Charter until they have gone through this process, but that is...the lack of representation is why we are here. Mr. Bynum: So, I will save those comments for the end here, about prior to the current County Attorney, we had huge problems with this, with getting these opinions to the petitioners in advance. It never happened even though we spent tons of money, right? So, we will talk about that later. Thank you for answering the questions. Ms. Clark: Sure. Chair Furfaro: Do not leave. Just so you know, one (1) of my four (4) questions to their attorney was in fact to take a look at the Nakazawa versus Baptiste case. Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Chair. Thank you, Mona. Is one (1) week enough time to get an opinion back to us regarding initiative versus Charter amendment? Ms. Clark: Yes, that is sufficient. Mr. Rapozo: Okay. The difference between a Charter amendment and an initiative is just under six thousand (6,000) votes...I mean, signatures. I think as a courtesy to the group, we need to expedite that process so if they need to get more signatures. I do not, and correct me if I am wrong, if the County Clerk, with his meetings with the County Attorney's Office, believed this is an initiative, they are not required just because they have the signatures for a Charter amendment to put it on the ballot, correct? How can...I mean... COUNCIL MEETING 36 MAY 28, 2014 Ms. Clark: You are asking if the County Clerk is required to put it on the ballot as a Charter amendment. No, he is not. Mr. Rapozo: Okay, and that is...I was just kind of getting uncomfortable here. Regardless, as long as you get the signatures you can put whatever you want on the ballot. I mean, there is two (2) specific methods of getting it on the ballot, but if you do not meet the County's interpretation of Charter amendment, then the onus goes on the petitioners to file a lawsuit against the County. I do not want to get into a situation like we did in the past where the County has to sue the County because we did not have the grapes to stop an invalid amendment...did I say grapes? I am sorry. The courage, to stop the amendment before putting it on the ballot, praying that it does not pass, and then it passes and then we have a legal battle. So, I guess this is all to the committee, is that we want to make sure that committee is giving them information upfront as early as possible so they can fix it and get the signatures necessary to make it right, but I get worried when I hear comments like as long as they submit the signatures, that we are obligated to put it on. If the County Attorney, and the County Attorney is going to have to come up with a...this is an initiative or this does not meet the requirements of a Charter amendment. That is what I am expecting from your office, not one of those, it can go either way, use your best judgment. No. I want to hear from the County Attorney, based on the legal language and the legal law in the books, I want to know, does this qualify as a Charter amendment or an initiative, and can we get that in a week? Ms. Clark: Absolutely. Mr. Rapozo: Thank you very much. Mr. Chair, just that if we could maybe defer this for a week. Chair Furfaro: Well, actually, I would have to defer it to June 10th because it is going back to a Council Meeting. Mr. Rapozo: Oh, we could not have a Special Council Meeting? Chair Furfaro: Well, we could. Mr. Rapozo: I am just concerned that the time that in foreseeing some legal challenges. We already heard the comments earlier today that this was held up for weeks and I am concerned that... Chair Furfaro: Well, I want to let you know we have dealt with it within the first ten (10) days. Mr. Rapozo: I understand that, but the perception is... Chair Furfaro: But if by I have given them a week to get the interpretation, I would like to have some time to really study it and so forth, but procedurally it would be June 10th... Mr. Rapozo: Okay. Chair Furfaro: ...in that opinion. COUNCIL MEETING 37 MAY 28, 2014 Mr. Rapozo: And then, okay. Thank you. Chair Furfaro: Mr. Hooser, you have the floor next. I am sorry there. We are in discussion with the attorney. There is no audience participation right now. Go ahead, Mr. Hooser. Mr. Hooser: Yes, regardless of what your opinion in a week says, the petitioners have the right to amend the petition, the language, to comply with whatever concerns might be addressed after the signatures are authenticated. Is that correct? I should not...I mean, regardless is a big word. Ms. Clark: Right. Mr. Hooser: But in general, if there are x number of items and the County Attorney had problems with that number of items, theoretically, the committee could amend the petition to satisfy those concerns. So, if there is a question whether it is a dog or a cat and the County Attorney brought its concerns forward, that the petitioners could adapt that, but after the signatures? Ms. Clark: I would appreciate the opportunity to respond to that in my opinion in a week from now whether they are given the totality of what the current document is, how and if it could be bifurcated. Mr. Hooser: Okay. The intent of the document, I believe, is ultimately clear. Companies have to prove that no harm...that these things will not go past their property and that they are safe before they are allowed to move forward. That is certainly, to me, the heart of the issue. The prescriptive nature of how it is going to happen, whether how many people on the committee, how many number of days, or what the penalty is, could be left out and the Charter amendment move forward that carries the heart and purpose of this, I would believe. Do you not think that could be amended to include that or you want to wait to think about it? Ms. Clark: I think that the opinion should address what aspects could legitimately be a Charter amendment. Mr. Hooser: Okay. Ms. Clark: And I think that discussion, well, to some extent, the discussion should occur in Executive Session, though I understand the threshold question being something that we are addressing today. Mr. Hooser: Okay. Just a brief... Chair Furfaro: You still have the floor. Mr. Hooser: Thank you. So, it is a little bit...I mean, the people have drafted a Charter Amendment, gone out and got signatures, and put it on the table. I believe the process calls for authenticating those signatures and then looking at consulting with the County Attorney's Office and making amendments if they deem fit. Then the County Clerk would decide at that point whether to accept it or not or send it to the Council. So, I am just concerned that we are circumventing the process and we are doing this outside of the sequence called for in the Charter. COUNCIL MEETING 38 MAY 28, 2014 Ms. Clark: I think the problem is that Article XXIV uses as a premise, that you have a Charter amendment that is being submitted and at some point, are the variations so dramatic that it can no longer be considered such. Mr. Hooser: Okay. Thank you. Thank you, Chair. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: So, the threshold question before it can even go to a negotiation between the County Attorney and the petitioners' committee is, as the Chair said, whether it is a cat or a dog, whether it is a Charter amendment or a Bill for an Act, an initiative, right? Ms. Clark: Yes. Ms. Yukimura: That is the threshold question because the first step is the certification of the signatures that starts the whole process. So, until the Clerk knows what the amendment is in substance, per the Supreme Court decision, he will not know how many signatures is required for it to be authenticated and to move forward. If it is not sufficient, it is rejected, right? Ms. Clark: If it is not sufficient, then... Ms. Yukimura: In the number of signatures. Ms. Clark: Yes. Ms. Yukimura: And if it is sufficient in the number of signatures, then it moves to the next step? Ms. Clark: That would be correct. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Mr. Bynum. Mr. Bynum: Is the County Attorney's Office recommending a deferral? Ms. Clark: Yes, I think that is... Mr. Bynum: I am sorry. You do not have to answer if you are not comfortable with it. Ms. Clark: No, I think that that would be a good way to address it. Mr. Bynum: And a deferral would be for what purpose, again? I am sorry if I am being redundant. Ms. Clark: I think the question of how and if it can be bifurcated, how and if the document can be bifurcated and whether you have a document that is a Charter amendment before you. COUNCIL MEETING 39 MAY 28, 2014 Mr. Bynum: Has this review, to your knowledge, been conducted on any previous Charter amendments that were submitted? This review you are talking about right now, an upfront thing saying, "We may not accept this for the ballot because it is insufficient," has that kind of review even happened when Charter amendments were proposed previously? Ms. Clark: In this County? Mr. Bynum: Yes. Ms. Clark: No. Charter amendments have been reviewed Nation-wide on a pre-election basis. In a few cases, generally limited to Constitutional questions and number of signatures. Mr. Bynum: So, there are instances where communities have Councils have chosen not put something on the ballot because some attorney said this does not meet legal sufficiency? Ms. Clark: Yes, and actually, in Hawai`i, the Immediate Court of Appeals refused to...the City and County of Honolulu refused to place something on the ballot as far as the "Stop Rail Now" issue. A mandatory injunction was sought and the court refused to issue it, and required the placement of the item on the ballot. Mr. Bynum: Right. So, I will save the rest. I have other questions, but they are not going to get answered today and I do not think that would be productive, but I will have some comments at the end. Thank you. Chair Furfaro: JoAnn, and then I would like you to stay by. I am going to ask the petitioners' lawyer for a few questions after you, but JoAnn has the floor right now. Ms. Yukimura: So, Mona, in the Charter Article XXIV, Initiation of Amendments, it says, "upon filing such a petition with the Council, the County Clerk shall examine it to see whether it contains the sufficient number of apparently genuine signatures of voters." So, it is not the Council who would make a decision about whether there is a sufficient number of apparently genuine signatures. It is the Clerk who is going to determine that, right? Ms. Clark: As far as the number of signatures, yes. Ms. Yukimura: Right, but in order to know what is the number of signatures, he has to know whether it is a Charter amendment or not or whether it is an initiative? Ms. Clark: Yes. Ms. Yukimura: Right. So, that is going to be part of the process this week for the County Attorney to work with the Clerk in terms of whether...what it is? Ms. Clark: Yes. COUNCIL MEETING 40 MAY 28, 2014 Chair Furfaro: Thank you for restructuring my original point here. Ms. Yukimura: Yes, I know. Chair Furfaro: Stay close by. I would like to ask...I am sorry if I pronounced the name wrong, Mr. Yuhnke. I am sorry. My apologies sir. Stay close. Please accept my apology. Mr. Yuhnke: No problem. Chair Furfaro: Just so that you kind of know where I am going with this. I would like to find us in a situation that, say within a week, we get some determination from the County Attorney's Office and her review, I schedule something in the Committee of the Whole and an Executive Session so that the Council can be briefed, and I think you folks would appreciate some of that discussion as you have seen my points that I have shared with you, and then we are back on the calendar for June 10th. What is your feeling about that? Mr. Yuhnke: Well, Mr. Chairman, I think what we would prefer and would suggest to the Council is that this matter be sent to the County Clerk for the purpose of at least determining how many of the signatures submitted to-date are valid. The reason why we think that is appropriate is because no one in the room today has suggested that there are not elements of this Charter Amendment that are appropriately an amendment to the Charter. So, whether or not some portions of it are ultimately interpreted by the County Attorney as not being an appropriate Charter amendment, there are parts of it that everybody agrees are a Charter amendment. So, what has been submitted so far includes elements that are, by consensus, an appropriate Charter amendment. So, what we are left with at some point down the road are two (2) choices. One is responding to an opinion from the County Attorney that certain portions are not appropriate as a Charter amendment and responding to that in some way to modify what goes on the ballot or to obtain additional signatures to cover the fact that some portions of it may be treated and interpreted as an Ordinance, but today, there is no argument from anybody that none of this is a Charter amendment. So, if portions of it are appropriately considered a Charter amendment by everyone in the room, then it should go forward so that the County Clerk could at least determine whether or not the signatures that have been submitted can be verified. (Mr. Kagawa was noted as present.) Chair Furfaro: I do want not make sure you understand, for me, I am not perhaps legally versed in all of these moving parts and I need the County Attorney as an advisor, and that is why I am asking for the time and that is why I surfaced the questions that I did, but I appreciate your feedback and I am going to give Councilmember Yukimura the floor. Mr. Yuhnke: Thank you, Mr. Chairman. Ms. Yukimura: So, Mr. Yuhnke, the next step with the petition being received is to determine whether the threshold of signatures has been met, right? Mr. Yuhnke: Correct. COUNCIL MEETING 41 MAY 28, 2014 Ms. Yukimura: So, we would have to determine whether it is a Charter amendment or not because if it is not, portions of it that are not have to require a twenty percent (20%). So, you would have to go with the biggest percentage to get it on the ballot if you are going to have portions of it being a law rather than a Charter amendment. You cannot get a legislative piece on with five percent (5%) of the vote. That would violate the Charter. Mr. Yuhnke: If it would violate the Charter, I would agree with you. Whether it violates the Charter is a legal question. That is something that you obviously have asked the County Attorney to address, which I think is appropriate. The question to be decided right now is whether or not you need to wait for that opinion before you refer this to the County Clerk or whether or not it can be referred to the Clerk at least for the purpose of verifying signatures beginning tomorrow. What we are asking you to do is at least commence the process of verifying signatures so that we know how many valid signatures have been submitted and then if the County Attorney provides an opinion to you and then presumably to us, that would be a public document, we can decide how many more signatures we would need for an initiative of an Ordinance or whether or not we should modify the petition, but at the moment, if you hold this up none of us will have that information, which I think impedes the process for everyone concerned. Ms. Yukimura: Okay, I see that. I am guessing that at the end by June 10th based on discussion that the Clerk will have with the...I mean, it does not have to go through the Council necessarily. It goes straight to the Clerk does it not? Mr. Yuhnke: It should go to the Clerk, and as you have just suggested previously, the County Attorney can have consultation with the Clerk's Office, and will undoubtedly in the opinion that Mona Clark has offered to prepare, provide the Clerk with some guidance as to whether or not this required five percent (5%) signatures or twenty percent (20%) signatures. Ms. Yukimura: Yes, okay. Mr. Yuhnke: And then that will give us as to what portions of this we think we would either withdraw or go out and collect more signatures, but we also need to know how many more signatures. So, that comes down to whether or not somebody has looked at whether or not what was submitted are valid signatures. Ms. Yukimura: So, upon the filing of such petition with the Council, the Clerk shall examine it. So, in order for the petition to be filed, does it have to be received by the County Council? Mr. Rapozo: He is not the person to ask. Chair Furfaro: That is not the person to ask. Ms. Yukimura: Yes, I know. Right. Chair Furfaro: So, what I will do, I want you to focus here because this meeting is controlled by the Chair now. I want you to focus questions to him and then I am going to ask our County Attorney to come back. COUNCIL MEETING 42 MAY 28, 2014 Ms. Yukimura: Okay, great. Chair Furfaro: Just questions for Mr. Yuhnke. Ms. Yukimura: So, I just have one (1) question then. Chair Furfaro: Go ahead. Ms. Yukimura: So, are you the attorney advising the petitioners' group then? Mr. Yuhnke: I have worked with them on this. I have not advised them regarding elections law. That is another matter. Ms. Yukimura: Okay. Alright. Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: So, you have not advised them of the election law or the Charter? Is that what you just said? Mr. Yuhnke: Yes. Mr. Rapozo: So, what have you advised them? Are you the attorney for the group? Mr. Yuhnke: I am not here to represent them as Counsel. Mr. Rapozo: Okay. Mr. Yuhnke: No. Mr. Rapozo: I think somebody said that you were the attorney. I was just curious...are you... Mr. Yuhnke: I drafted this with the petition group as their consultant. Mr. Rapozo: Okay, and are you an attorney here in Hawai`i? Are you a licensed attorney in Hawai`i? Mr. Yuhnke: I am not. Mr. Rapozo: Okay. So, you are not in the capacity to represent them anyway? Mr. Yuhnke: Correct, in that way. Mr. Rapozo: So, it there anyone in that group that is representing them in a legal way? Mr. Yuhnke: Not today, not here. COUNCIL MEETING 43 MAY 28, 2014 Mr. Rapozo: No, at any point. I mean, was...and I guess I was mistaken. I just assumed that you were their attorney and maybe I just misunderstood, but was there an attorney, a Hawaii licensed attorney advising this group because I think a lot of this is simply a misinterpretation of the law, the difference between initiative and Charter amendment, and I think if there was a local attorney familiar with the election law and the Charter amendment law, a lot of this could have been alleviated. So, if there is none, then I can understand, but if there is one, I would like to have a discussion with that attorney. Like I was...I mean, I apologize asking you to help me understand it. Mr. Yuhnke: There is not today. Mr. Rapozo: Well, what about yesterday? Mr. Yuhnke: No. Mr. Rapozo: Has there ever been one, I guess, is my...it is not a trick question. Mr. Yuhnke: What I am suggesting is I think there will be soon. Mr. Rapozo: Yes, I would suggest that there would be one soon and from what I understand, I thought I heard that that committee was advised a while back to get one because again, these are, I think, what I would call fundamental issues that should have been resolved a while ago. As it relates to Councilmember Yukimura's question, when does the filing occur? I mean, once we stamp that file, that is filed and at that point, somebody has got to let that group know this is not a Charter amendment. I think in all fairness to the group, initially, this is not a Charter amendment. This is an initiative, and I think that is what we need to do as soon as possible. Mr. Yuhnke: Mr. Rapozo, the Charter clearly provides a role for the Clerk to assess the validity of the signatures and we need to know that. That is a step in the process. Another step in the process is for the County Attorney to provide feedback. The Charter does not specifically address whether or not that is to Council or to the Clerk, but it does authorize the County Attorney to provide feedback to the petitioners' committee and we would appreciate that, we would welcome it, and we think that the appropriate step forward here is to have both of those steps move in tandem. Mr. Rapozo: And from what I heard from Ms. Clark, that she did commit that she would be open and willing to speak to you folks prior to... Mr. Yuhnke: Yes, she has agreed to meet with me and she is committed to provide and opinion to you and to the County Clerk within a week... Mr. Rapozo: Thank you. Mr. Yuhnke: ...and we would welcome that. Chair Furfaro: I am again, thankful for you being here. I am considering I will look at the schedule if the County Attorney's Office, and in particular, Mona, who if she commits to a week, she is usually right on it. I might COUNCIL MEETING 44 MAY 28, 2014 consider trying to also schedule a Special Committee Meeting for the June 4th date rather than the June 10th date. So, that is just something that is just going on now. So, Mr. Bynum, you have the floor. Mr. Bynum: So, I just want to make sure I understand. It is your position that this action before the Council is required in order to empower the Clerk to start the process of counting the petitions... Mr. Yuhnke: That is correct. Mr. Bynum: ...and it is unrelated to the other issues we have been discussing here? That is your position, is that correct? Mr. Yuhnke: That the Clerk's responsibility should be carried out with guidance from the County Attorney that is appropriate, but the Clerk's responsibility needs to be carried out without waiting for the County Attorney. Mr. Bynum: Okay. Thank you. Chair Furfaro: Thank you very much. I am going to call Mona back up. Mr. Yuhnke: Thank you, Mr. Chairman. Chair Furfaro: Thank you very much. Mr. Yuhnke: I appreciate you giving us an opportunity to respond. Chair Furfaro: Well, we want to do the right thing for the right reasons here. So, we do not want to circumvent anything, but we want to make sure we are on target here. Mr. Yuhnke: Thank you. Ms. Clark: For the record, Mona Clark. Chair Furfaro: Thank you, Mona. Mona, I am going to give the floor back to Councilmember Yukimura. She posed a question that should have gone to you a little while ago. So, go ahead, JoAnn, you have the floor, followed by Mr. Hooser. Ms. Yukimura: So, the Charter says, "upon filing of such petition with the Council, the County Clerk shall examine it to see whether it contains sufficient number of apparently genuine signatures of voters." The filing of petition means that it was stamped or does it have to go through the Council? Ms. Clark: I think the Council has a role in that when you are in a situation like this where the Charter is not exact in covering the situation, as I said before, the Charter has its threshold premise for Article XXIV, that there is a Charter amendment that is being submitted. I think that the party that can act on that is also the County Council as far as whether a petition has been submitted to it. I think you can ask the County Attorney for the advice on whether COUNCIL MEETING 45 MAY 28, 2014 it is a Charter amendment or is an Ordinance. I think the way that you get there is that nothing in Article XXIV states who is going to decide whether it is a Charter amendment or not. Ms. Yukimura: Well, but it says, "the County Clerk shall examine it." So, my question is, what constitutes the filing of a petition with the Council? Ms. Clark: What is a... Ms. Yukimura: To me, this puts the...this duty is the County Clerk's duty. "To examine whether it contains sufficient number of apparently genuine signatures," but there is a precedent, right? "Upon filing of such petition with the Council, the County Clerk shall examine to see whether it contains sufficient number of signatures." That is an act of the County Clerk, but there is this "upon filing of such petition with the Council." Ms. Clark: Right, and so I think that the Council has a role in that process in that the petition is being filed with you and the threshold question can therefore be determined by you based on advice from Counsel. Ms. Yukimura: I do not believe that is correct, but I will let you do the research and find out. So, "the filing of such petition with the Council." It sounds like a ministerial thing, but I mean, what is "the filing of the petition with the Council?" Do we act on it in a Committee Meeting and send it to the Clerk or does it just come to Council Services and it is a filing with the Council? I guess, and I am answering my question. I think we have to receive it. Chair Furfaro: That is the motion that is here, is to receive, yes. Ms. Yukimura: But then it is not to put it on the ballot. It is to send it to the Clerk? Chair Furfaro: It is to receive it to go to the Clerk and then the Clerk from that point on, will find himself validating the signatures by comparing them to election records and signature specimens. Therefore, he needs to know is he comparing... Ms. Yukimura: Correct. Chair Furfaro: ...the total to be a cat or a dog? Which is it? Ms. Yukimura: And that is not a Council decision. Chair Furfaro: That is the question I am posing to you for next week. Ms. Clark: Right, and that is the question that is going to be answered. Chair Furfaro: Mr. Rapozo and then Mr....you good? Mr. Rapozo: I am good. I think we need to move on. COUNCIL MEETING 46 MAY 28, 2014 (Mr. Kagawa was noted as not present.) Chair Furfaro: Mr. Bynum. Mr. Bynum: I am sorry. You are using this term I had not heard before so I want to make sure you define it and then I will be done for now. Explain to me what the threshold question is. Ms. Clark: I just mean Article XXIV deals with the submission of Charter amendments. Mr. Bynum: Yes. Ms. Clark: If you have a document which is not a Charter amendment pursuant to Nakazawa versus Baptiste, then can it be processed under Article XXIV. Mr. Bynum: And your position is it is the County Clerk's responsibility to determine that, whether it is a Charter or a petition? Ms. Clark: I think that there are various provisions in the Charter that go to how you process different documents and the initial determination as far as sufficiency for an initiative is under Article XXII. Mr. Bynum: I do not...I am sorry, I did not understand the answer. Is the Clerk supposed to determine...in your reading of this, when they submit this, you are saying the Clerk is supposed to determine whether this is a petition or a...right? Ms. Clark: No, I did not say. Mr. Bynum: I am sorry. I do not... Ms. Clark: There is a two-step process. A petition is submitted to the Council and the Council has certain authority as far as whether to process it. I think that you...but in any case, I think that it makes sense to do the opinion to you, submit the opinion, have a normal Executive Session, and deal with it. Mr. Bynum: If we do not receive this today, will it delay the Clerk by even one (1) minute to start the process of certifying these signatures? Ms. Clark: I guess it would delay it. Mr. Bynum: Thank you. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Yes, I think we are almost done with this, but... Ms. Clark: For me? COUNCIL MEETING 47 MAY 28, 2014 Mr. Hooser: Yes. The prior speaker assumed that the opinion that you generate would be public and be made available to the petitioners. Is that a correct assumption? Ms. Clark: That is your decision as a body. (Mr. Kagawa was noted as present.) Mr. Hooser: Okay, but the way you described it, we would go into Executive Session so we take your opinion and have an Executive Session? Ms. Clark: And then decide what you want to do with it, and then you can come out. If you want to waive privilege, you can waive privilege and do whatever you want. Mr. Hooser: Okay. Thank you. Chair Furfaro: And that is correct. The decision to release the evaluation is the decision from the body in Executive Session. We and only we reserve that right. Mr. Rapozo. Mr. Rapozo: Well, actually, I have a question for our Clerk, that when we are done with... Chair Furfaro: Okay, when we are done with Mona, we will come back to you. Please, everybody, excuse me for eating some raisins. Many of you know I am diabetic and I am just having a little need for some sugar right now. Go ahead, you have the floor. Mr. Bynum: The attorney was up here. I had forgotten his name. Mr. Yuhnke, said this is just allowing the Clerk to count the signatures. Why is this connected with this other this other thing? I mean, I am not convinced we should not immediately receive this and get the Clerk going doing the counts. This threshold question...oh, I am sorry. I will hold that for comments for the end. That is not a question. So, just, why not receive and get the Clerk counting them and deal with this other issue? What is the harm? Ms. Clark: I do not know whether you can process it if it is not an amendment. Mr. Bynum: Okay. I will save that for my comments. Thank you. If it is not an amendment? You mean if it is not a Charter amendment? Ms. Clark: That is correct. Mr. Bynum: If it is a petition? Ms. Clark: Correct. Mr. Bynum: Okay. I understand your position. Chair Furfaro: Mona, again, thank you very much. Okay, I am going to call this meeting back to order... COUNCIL MEETING 48 MAY 28, 2014 Mr. Rapozo: Oh, I had a question for the... Chair Furfaro: Oh, that is right. Mr. Rapozo. Mr. Rapozo: Mr. Chair, I just wanted to ask the Clerk because of... Chair Furfaro: I am sorry about that. Mr. Rapozo: No, no problem. Because of the, I guess, the perception that maybe the County held up...the Council or the County Clerk's Office held up the petition. I mean, those kinds of comments really bother me and I just want to make sure that the Clerk can defend himself. Mr. Clerk, if you would, have an opportunity to share the process as far as what happened at our office. Mr. Watanabe: Yes. Just to clarify what has transpired so far, we have been in meetings with the petitioners' committee for approximately a month and a half, and we were working on getting a signature page for the petitioners' committee to start circulating that met with requirements of the Charter. Given that, we gave them a timeline and when we would get that signature page back to them so they could start submitting their...getting their...circulating their signatures, which we did and perhaps that is when the comment was made that we held it up. At no way did we hold it up. We met the threshold of the time that we met with the petitioners and gave our word that we would get it to them, which we have facilitated all along. So, I just wanted to clarify that we never held up the petition. Mr. Rapozo: Thank you, Mr. Clerk. Mr. Watanabe: Thank you. Mr. Rapozo: And thank you, Mr. Chair. Chair Furfaro: Vice Chair has a question for the Clerk, I believe. Mr. Chock: Mr. Clerk, just process question. So, how long will it take, approximately, to process the signatures? Mr. Watanabe: Well, we provided a fact sheet to the petitioners' committee and it is based on timelines. For verification of petition signatures, if it is filed with the Council today at today's meeting, will take us up to June 27th. Mr. Chock: Okay. Thank you. Chair Furfaro: Is this a question for the Clerk? Mr. Bynum: Yes. Chair Furfaro: Go ahead. Mr. Bynum: So, if it is not filed today, you cannot start the work on collecting...on certifying the signatures? COUNCIL MEETING 49 MAY 28, 2014 Mr. Watanabe: Well, it will take time to verify signatures, especially...I forgot the total amount of pages that we have under lock and key right now, but it will delay it a week. Mr. Bynum: Okay. Thank you. Chair Furfaro: Okay. I have a question for the Clerk. At the end of the day, we have to get a Charter amendment in order, reviewed, and to the publisher by August 22nd. Is that correct? Mr. Watanabe: Yes, to the Office of Elections, State Office of Elections. Chair Furfaro: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Members, I have called the meeting back to order for discussion. I think you know, I cannot make any motions, but I do want to say I am open to the fact that if the County Attorney's opinion can be back to us in a week, I am willing as a thought to the Deputy Clerk, to post a Special Meeting on June 4th, but that would have to come from you folks, and I am just saying that I am willing and able to do that. I will go to Mr. Hooser first and then Mr. Bynum. Mr. Hooser: Yes, Clerk...I mean, Clerk, Mr. Chair. My apology. I called you Clerk. Chair Furfaro: No problem. That is alright. I have been called worse. Mr. Hooser: I would like to see this Council move it forward and vote in support of receipt. I acknowledge and respect the thought about deferring it, but I do not believe that will really accomplish what needs to be accomplished and I would like to see the process move forward, the signature counting starting. The County Attorney could then present her, the County Attorney's opinion. The issue, the determination at the end of the day, is by the Clerk, I believe, anyway. It is not by this Council and if in fact the opinion comes back and shows there is certain elements of the petition that fall within the legal parameters of an Ordinance rather than a Charter, then the petitioners have an opportunity to amend that to make it comply with the Charter. Conversely, if the petitioners decided to get more signatures to go for an Ordinance, that option may be available also, but their initial purpose and intent is for a Charter amendment and I believe that it could fit those parameters, but they would have to amend it. I do not see any purpose of really waiting. I would like to see it move forward in a timely fashion. I would hate to, at the end of the day, as so often is the case, where things fall short a week and we have eaten up that week. I would rather just see it move forward and work its way through the system. Thank you. Chair Furfaro: JoAnn, did you want the floor? No? Mr. Bynum and then Mr. Rapozo. Mr. Bynum: I sent a memorandum to the County Attorney on April 26th and I was going to read it, but I lost it on this iPad, but COUNCIL MEETING 50 MAY 28, 2014 basically, it said, "Look, I got this Charter amendment. Last time we did this the County Attorney would not accept it or do any work until it was ripe, and ripe meant that the signatures were submitted and certified." We lost all of that time. I will not go into what happened last time, but I sent this and said, "Please expedite this review to follow the provisions of the Charter." The Charter, as I said earlier, gives us guidance but not...it does not outline the process, but what it does say, and I think I can find that. I had it a minute ago. I want to read the part that is germane here, that we keep talking about Article XXIV. It is all talking about signed by registered voters and then this the key thing, "Such petitions shall designate and authorize not less than three (3) no more than five (5) of the signers thereto to approve any alteration or change in the form or language or any restatement of the text of the proposed amendment which may be made by the County Attorney, which may be made" as Mona put out, they do not have to, is my read of this, but the intent is clear. Citizen petitions by their very nature are grassroots. They should not have to have an attorney. Now, in this one, they consulted attorneys I am sure because of the complexity, but they should not have to have an attorney to petition the government. The simple read of the Charter says, that the Clerk certifies the petitions. This whole idea of a signature threshold is brand new to me today. The questions I ask on the 26th was get this process going to engage the community in an open transparent way, right, so we do not run into the issues and problems that we have in the past. Apparently, other questions were asked, but I did not get a response to that E-mail and I did not get anything in writing about this until today. Today, before this Charter. I cannot show it to you. It is confidential, right, but this idea of a threshold is brand new to me. I do not see it in the Charter anywhere and I can be convinced because there are certainly legal minds much more, but time is what this is all about. This before us, I thought was just going to go through and we were going to take public testimony because to me, it is just a routine of what is outlined. We have to send this to the Clerk. We should not delay five (5) minutes. I am not going to support any deferral of this today. We should pass this through. These other discussions are important and we will have them, believe me, in Executive Session and in public, but let us get the signatures going. I did not ask the County Attorney a whole bunch more of questions because like I said, I did not get the written things until today, right? We need to get going. There is obviously a timetable. The last two (2) times, we missed it and to great turmoil in our community. You can argue why that turmoil happened and who did what, but part of it was we did not do the review. This is a friendly review. It is like citizens, hey, you have this petition, we are going to work with you, and we are going to say to you, "Here is our problems and even our suggestions." Now, they may choose not to help you write amendments, right, but they could. This says that they may, but clearly, I think, the intent is that they are going to work with our citizens to say, "Here is how you make this through our government and avoid these kinds of things. I want that process to proceed and I want the Clerk to start verifying the signatures. We said today, it is like, oh, maybe they will have to go get more signatures. Well, that is a new one. We never did this kind of review in previous Charter amendments, right, and the idea that the Council or the Clerk can somehow reject this because it does not meet some criteria is a new idea to me today. My read of the Charter is, yes, they are going to tell them that. After they review it, they are going to say, "Hey, there is a problem. Here is an opportunity to change it," and then it is on them if they change it or not, but we have been open, transparent, and upfront, but it clearly has to happen. I mean, the last time we did not get these things done. Oh, we ran out of time. It is not ripe yet. We cannot start this review until later, right? Our credibility as a County has been hurt twice by us not getting this right and it is COUNCIL MEETING 51 MAY 28, 2014 really important we get it right. The next step is to send this to the Clerk so he can count the things. We will deal with these other issues separately. That is my opinion. Thank you. Chair Furfaro: Before I go any further because we are pushing time here, I want to make sure, that was your allocated time. Mr. Bynum: That is fine. Chair Furfaro: JoAnn, you are next. Ms. Yukimura: I actually have no objections with receiving it today because I believe that is just...not for the purpose of certifying it for the ballot, but to get it to the County Clerk. When it goes to the County Clerk the Clerk has a responsibility to see what the requirement is for the number of signatures because like it or not, there is a threshold question here. It says, "By petition presented to the Council...signed by not less than five percent (5%) of the voters registered in the last General Election." If it is not a Charter amendment, then it is probably an initiative and there is a different signature threshold. So, the Clerk cannot certify it by the wrong threshold. If he is to follow the law, he has to certify it for the required...what the Charter requires. I believe that with the provisions in it as...presently, it has piece that are legislative and therefore, a higher percentage of signatures is required. I do not want to go all the way through to an election to then have to go to court to then have it decided that it is invalid because it required more signatures. That would be a disservice to people on all sides of the question. It is better to get a clear determination upfront so the petitioners know what they need to do to make it a legitimate ballot issue. So, to me, the Charter is clear. It is the Clerk who determines whether the threshold of signatures has been met. In order to determine that, he has to know whether it is in fact a Charter amendment or a Bill for an Ordinance. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. The whole purpose of initiative, referendums, Charter amendments, by the people really to take the politics out of the equation so the public can put forth these changes and get it to the ballot and let the people decide, and I think it is a good thing. The Clerk has the task, in my opinion, of determining whether or not it is a Charter amendment or an initiative, obviously, with the help of the County Attorney's Office. I know we have been talking about a County Council-Attorney's opinion, but as I am going in my mind thinking that...once we receive this, then it leaves us and it goes to the Clerk. That opinion should be requested by the Clerk and not the Council, and that opinion should go to the County Clerk and at that point the County Clerk will make the determination whether or not it is an initiative or a Charter amendment, but after we receive it here today, it is out of our hands, and then it goes through the process with the Clerk's Office, Election's Office, and I think that is the way it needs to be done. Initially, I was going to make the motion to defer for a week, but as I think about it and more and more you folks are reading over the Charter language, I think it is clear that it is ministerial. We just receive it. The Clerk will have the task, and like I said, Mr. Chair, if the Clerk would request the County Attorney's opinion with the same timeframe, one (1) week, and then the Clerk could make the determination, and in the process could be checking out the signatures. In a week, the Clerk would be able to inform the committee whether or not they have met the standard and maybe the Attorney's Office can help with some clarifying language to COUNCIL MEETING 52 MAY 28, 2014 make it a Charter amendment versus initiative, but there is no doubt in my mind as it is submitted to us today, this is not a Charter amendment and it is an initiative. Thank you. Chair Furfaro: Vice Chair. Mr. Chock: Thank you, Chair. I want to confirm my last two (2) colleagues' sentiments and just say, defer, receipt, I am kind of indifferent here. I am going to defer to the community's intent here which is to continue the process and to receive it would be appropriate. Hana nui ko pilipa`a. This palapala needs more work. That is what is important. That is the main issue. There is a lot more work that needs to be done here and so let us get the process moving on that because we need to get through it if it is going to end up on the ballot. So, I will be in support of receiving it today. Thank you. Chair Furfaro: Mr. Kagawa, do you want the floor? No? Anyone else? So, we do have a motion. The motion is to receive. To the County Attorney's Office, much appreciation. We are still expecting something within a week, but the motion was made on the floor for receipt with a second. I would like to call for the vote, please. Mr. Watanabe: Do you want a roll call? Chair Furfaro: Roll call. The motion to receive C 2014-164 for the record was then put, and carried by the following vote: FOR RECEIPT: Bynum, Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST RECEIPT: Kagawa TOTAL— 1, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Watanabe: 6:1. Chair Furfaro: So, now we find ourselves pushing our lunch break. We also have public hearings today. Mayor, I appreciate you being in the audience, but we will be, after the public hearings, we will be coming back to the County Attorney's item. I am sorry for the long time. We are now recessed for lunch. Please come back at 1:45 p.m. There being no objections, the Council recessed at 12:41 p.m. The meeting was called back to order at 1:55 p.m., and proceeded as follows: There being no objections, Proposed Daft Bill (No. 2546) was taken out of order. BILL FOR FIRST READING: Proposed Draft Bill (No. 2546) —A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES: Mr. Hooser moved for passage of Proposed Draft COUNCIL MEETING 53 MAY 28, 2014 Bill (No. 2546) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for June 10, 2014, and that it thereafter be referred to the Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Bynum. Chair Furfaro: To June 10th. JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Chair, we have one (1) registerd speaker. There being no objections, the rules were suspended to take public testimony. Chair Furfaro: Could you read the speaker's name, please. Ms. Fountain-Tanigawa: Speaker is Christi Demuth. Mr. Bynum: She could not come back. Ms. Fountain-Tanigawa: No one else is registered to speak. Chair Furfaro: Okay. No one else is registered to speak. There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: We will do a roll call on the first reading, Jade? Ms. Fountain-Tanigawa: Yes, roll call. The motion for passage of Proposed Draft Bill (No. 2546) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for June 10, 2014, and that it thereafter be referred to the 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: Bynum, Chock, Hooser, Yukimura, Furfaro TOTAL— 5*, AGAINST PASSAGE: Kagawa, Rapozo TOTAL — 2, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro is noted as voting silent, but shall be recorded as an affirmative for the motion.) Ms. Fountain-Tanigawa: 4:2, passes. Chair Furfaro: Okay. What is the call? Ms. Fountain-Tanigawa: 4:2, and one (1) silent. COUNCIL MEETING 54 MAY 28, 2014 Chair Furfaro: Okay. Mr. Bynum: I am sorry. Chair Furfaro: So, that passes on first reading. Now, we have a Resolution to visit on now. I want to make sure. We made some changes in the agenda today and there is an item that deals with the communication. There is an item that deals with the Resolution. Moving it out on the floor does not allow to speak on the communication and to speak on the Resolution. Those that signed up will be allowed to speak once. Is everybody clear on that? We pulled it out so that everybody could speak on the Resolution as well, but we are not going to go through two (2) readings. So, read that Resolution at this point. There being no objections, C 2014-163 and Resolution No. 2014-35 were taken out of order. Ms. Fountain-Tanigawa: So, this would be transmittal letter C 2014-163 on page 3, and it would be on page 7, Resolution No. 2014-35. COMMUNICATION: C 2014-163 Communication (05/21/2014) from Councilmember Hooser and Councilmember Rapozo, transmitting for Council consideration, a Resolution Expressing No Confidence In And Requesting The Resignation Of The County Attorney RESOLUTION: Resolution No. 2014-35 — RESOLUTION EXPRESSING NO CONFIDENCE IN AND REQUESTING THE RESIGNATION OF THE COUNTY ATTORNEY. Chair Furfaro: I do intend to call the Mayor up first, but I want to share with a few members here some information as it leads to the discussion that might be in front of us. This Resolution may lead to other discussions about lawsuits and those are potential issues that I want to remind everybody that is information that should not be waived and it is Attorney-Client privilege. If a Councilmember is going to speak or discuss the County Attorney's performance regarding any of those specific lawsuits, this may result in implied waivers of the County Attorney privileged and I am very concerned about that because a waiver of the County Attorney's privilege actually has to first be agreed by the entire body, not by any individuals. The second issue is the issue on confidentiality, which is required by the Charter Code of Conduct and Ethics. The Charter prohibits the disclosure of any confidential information acquired in the course of your official duties on the Council. The Charter also discloses some consequences of any disclosure of the information that may result in a suspension, a fine, a reprimand, or a removal from office. It also may result in the misdemeanor charge. It could go that far for the individual Councilmembers, and that fine does include penalties. Again, I just want to make sure that in order to avoid any violations of our Code of Ethics, I am asking that members to be moving forward with extreme caution and recognize our own Rules, our ethical standards, and what is considered privileged information. On that note, Mayor, I will allow you to come up. COUNCIL MEETING 55 MAY 28, 2014 There being no objections, the rules were suspended to take public testimony. BERNARD P. CARVALHO, JR, Mayor: Good afternoon Councilmembers. I just want to say off the bat that I am very, very concerned about this Resolution. It is something that should not be discussed like this. This is not the venue, the process, as far as I am concerned. I would like to state for the record that I have full confidence in Al Castillo and our County Attorney's Office. I do not support Resolution No. 2014-35. Mr. Castillo has put together a fine team of attorneys and support staff. I believe we have an outstanding County Attorney's Office. Let us face it, we do not always agree with the County Attorney's opinion, however, that should not be cause for termination. Attorneys are legally compelled to give their best opinions based upon their findings of facts and interpretations of the law. Each attorney is required under license to practice law, to live up to the Hawai`i State Bar Association's Standards of Conduct, and the oath that they took. I know for the fact that Mr. Castillo and his staff regularly consult with the Office of Disciplinary Counsel to ensure that their actions are in compliance with the Standards of Conduct. The Office of Disciplinary Counsel has never made a ruling against Mr. Castillo or any of his Deputies. I would like to point out the few significant accomplishments, great, that have occurred under Mr. Castillo's leadership of the County Attorney's Office. The County was able to legally comply with the terms of our probation agreement with Department of Justice regarding the endangered seabirds issue without incurring further penalties. Number two, the County Attorney's Office took the lead in drafting the first ever County Stewardship Agreement for the Kaneiolouma Heiau Project. The County Attorney's Office led the effort to deal with the legal hurdles that the State could not overcome so that we could spend the four million dollars ($4,000,000) in Federal money set aside for the Wailapa Stream, Kilauea River Emergency Stream Cleaning, the expansion of Black Pot Beach Park, specifically, the acquisition of the three (3) Sheehan parcels via condemnation was successfully led but our County Attorney's Office. The County Attorney's Office worked with Life's Choices and Senator Inouye's office to preserve drug prevention funding that would be lapsed so that vans and trailers could be purchased to serve our at-risk youth, our public middle schools and high schools. Al and his team, our team, drafted long overdue Hearings Officer Rules in order to prosecute violations under the Grading and Grubbing Ordinance. The County Attorney's Office worked with Parks and Recreation and the County Council to amend the Peddlers and Concessionaries Ordinance to better ensure the protection of public use of public parks. They also drafted the Administrative Rules in order to implement the Ordinance's amendments. The County Attorney's Office performed the Section 106 consultation process in-house for Wailua to Kapa`a Bike Path Phase "C" and "D", saving the County time and money by creatively blending Federal regulatory law with Native Hawaiian cultural practices. The process was through collaborative and successful ho`oponopono. The County Attorney's Office provided valuable legal guidance which led to the acquisition of the Rice Camp parcels in Lihu`e and a successful groundbreaking of the Kupuna Affordable Housing Project last month. Al's team, our team, negotiated a ten (10) year multi-term maintenance contract with Motorola what will save an estimated eight hundred fifty thousand dollars ($850,000) over its terms. In terms, a Special Counsel expenditures, the amount spent annually has varied significantly from year to year since 2008. In Fiscal Year 2009, during which Mr. Castillo was in place for only three (3) months, the total amount spent on Special Counsel was one million nine hundred thousand dollars ($1,900,000). That COUNCIL MEETING 56 MAY 28, 2014 amount was nearly cut in half during his first full year on the job and dropped to four hundred fourteen thousand dollars ($414,000) in Fiscal Year 2011. Let us remember that many times Special Counsel is retained because the actions of others, not because of the circumstance within the County Attorney's Office. If you, if any of you, are unhappy with Mr. Castillo's performance you should have met with him individually to discuss how improvements can be made and if that does not work, you should have requested a meeting with Mr. Castillo and me. I would be more than open and glad to discuss any of our Department Head's performances, performance of work and it is very important that you understand I am here to collaborate, coordinate, and be ready to discuss. Nobody sat with me to really discuss this whole issue. It was just kind of done. If any of you are unhappy, let me know. I do not believe this should be handled in this public forum as it is a personnel matter. Mishandling a personnel matter exposed the County to legal liabilities, enough already. We should be very careful in this regard. In closing, allow me to state that Mr. Castillo is a valued member of my Administration. The Charter clearly spells out our respective responsibilities just as I do not tell you how to hire people. The bottom line is, I take my responsibility very seriously. I will manage my Department Heads. I will manage my team members. When it is appropriate for me to make decisions about their performance, I will do that, and in this particular case, it is not the time nor the place to be talking about one of my Department Head's performance. That is just how I feel and I wanted to focus on the positive. I was very unhappy with how this thing has unfolded, but in the spirit of being respectful, I think enough has been said as far from me. So, thank you for the opportunity and I know what my responsibilities are and what I have to do. It is my responsibility and I will do it. If you need to handle your situation on this side of the fence, go ahead. I am not interfering in any business on this side of the fence. I am not asking for any performance audits on anybody. That is your responsibility. I take my responsibility very seriously. The people voted me to take responsibility and I will. Hopefully, at the end of this term which is November 30th, we will be here, but the blessings from above, I want to serve again with a team that will be in place, but I will decide. You never change your coaches in the middle of a game. You hang tight, you hang together, you hold hand, you make sure, and you help each other. That is my form and how I manage my people. So, thank you so much for the opportunity. Chair Furfaro: Mayor, I do have to say one (1) or two (2) things just to make...this Council cannot direct any of your Department Heads and we understand that, but the County Attorney is both of our County Attorney. He is the legal representation for the Council as well. I take my management skills pretty serious and if I have discrepancies, I have in the past and will in the future, go directly to Al as he does have overview with us. So, thank you for the reminder. Mr. Rapozo. Mr. Rapozo: Thank you, and thank you, Mr. Mayor, for being here today. Mayor Carvalho: Thank you. Mr. Rapozo: I appreciate your passion. I just wanted to clarify that I did have a discussion with you in the past. It was not with Al, but I did have a discussion with you and maybe on more than one (1) occasion regarding how I felt about the performance of the County Attorney. We did have that discussion. I just want the public to know because I do not think it is fair to say COUNCIL MEETING 57 MAY 28, 2014 that we should have gone to you because I did and I spoke with your Managing Director. As far as Al, he had solicited the Council's input in meetings and I did not meet with him in the last go around, and I just want the public to understand that many, many, many suggestions to make things better were made. Unfortunately, they happened behind that door. So, you are not privy to it, the public is not privy to it, but we are, and I can honestly say that I believe this Council has made substantial suggestions and numerous suggestions. Interestingly enough, a couple of them have been implemented within the last thirty (30) days, and I believe because of this Resolution. So, I just wanted to clarify that we did have a discussion and I just feel that this was our only recourse. Mayor Carvalho: Thank you for that. I just want to clarify that we may have had that discussion, but on my side, I am talking about what is before us and what happened recently. Before anything is drafted in writing and put on the floor, I want to know. I want to be able to talk about it. That is all. So, I appreciate that. Thank you. Chair Furfaro: Hold on Mr. Mayor, for a second. Mr. Hooser. Mr. Hooser: Yes. Thank you, Mayor. It does not surprise me that the County Attorney has served you well. The Resolution is not about how the County Attorney serves the Administration. The Resolution is about the Council's, how it believes, the County Attorney served the Council. I am a little puzzled by your implication that you were not aware the County Attorney and the Council has been having some issues or conflicts or disagreements. Mayor Carvalho: Of course I have known. I said earlier that there are issues between both sides through the County Attorney's Office. What I am saying, Mr. Hooser, if you have any problems directly with my people, come to me. Mr. Hooser: Right. Mayor Carvalho: So, at least let me know. You did never sat with me once... Mr. Hooser: Okay. Mayor Carvalho: ...to talk about this issue, hold on, and then to see it in writing, and then to say we have thirty (30) days and come see me. I mean, that is all I am saying. We are trying to work together and if you have any issues with any or our people, please, come talk to me. That is all. Chair Furfaro, well, that is it. Thank you. Mr. Hooser: Okay. With all due respect, this is not your people. The County Attorney's Office serves the Administration, serves the Council, and cannot be appointed or removed without approval from the Council. So, this is not the...the County Attorney is not the domain of the Administration. The County Attorney serves everybody. Mayor Carvalho: Correct. Mr. Hooser: So, he is as much as our team as your team. COUNCIL MEETING 58 MAY 28, 2014 Mayor Carvalho: Alright. Mr. Hooser: Okay? So, I want to be clear on that, and I did speak in the past with the Managing Director expressing my concerns. I met face to face with the County Attorney a short time ago and expressed my concerns. So, for you to be surprise by this, I have a hard time understanding it, but we will move on. Thank you. Thank you, Chair. Mayor Carvalho: So, I just want to make sure that you understand that. Thank you. Chair Furfaro: Mayor, I also, first of all, I cannot let you leave by also recognizing some of the things that we are very pleased with since you brought it up. Mayor Carvalho: Yes. Chair Furfaro: I am very proud of all of the attorneys we have in the County Attorney's Office, and like I said, they represent the Council as well. Al has, I would say he has assembled a very good team, and that is something also we should be very, very proud of especially when it comes to the future of County government and the upward process for these individuals. I want to thank you also for reminding us about the many accomplishments we have had everything from the Black Pot move on acquisition, the Stewardship Agreements, and so forth. So, I just want to make sure you understand, I think there is much to celebrate on as well, and especially the group of attorneys that the County Attorney has assembled. So, thank you for that. Mayor Carvalho: Thank you so much. If I can just address Councilmember Hooser one (1) more time. Chair Furfaro: That is your choice. You have the floor. Mayor Carvalho: I appreciate what you said, Councilmember, but at the same time, all I am saying is before you put anything in writing, come talk to me. I mean, I never saw what you were going to put or what you were initiating. I may have heard about it, but nobody told me that you are coming in here and asking for the removal of our County Attorney. That is all I am saying. Thank you very much. Chair Furfaro: Okay, we are taking other testimony, and again, I just want to make sure we maintain a level of decorum and caution us all on remarks that might be made that might breach any confidentiality from privileged information. So... Mr. Rapozo: Mr. Chair, I think we should probably start this with a motion. We do not have a motion yet, right? Chair Furfaro: Yes. Mr. Rapozo: There was no motion? Mr. Rapozo moved to adopt Resolution No. 2014-35 seconded by Mr. Hooser. COUNCIL MEETING 59 MAY 28, 2014 Chair Furfaro: Thank you. There is a motion to approve and a second. On that note, I was going to have it read first and then move to a motion, but could I have the Resolution read? Ms. Fountain-Tanigawa: Did you want the entire Resolution read or the title? Chair Furfaro: The Resolution, which is on one (1) page, right? Okay, there is discussion here that we can move on in the efforts of time. So, forget the request I made. Not a problem. I have, for the next speaker, I have Glenn Mickens, followed by Sandi Sterker. Let me ask, do you have the same list that I have? Ms. Fountain-Tanigawa: The same people, but in various order. Chair Furfaro: Okay. Well, after these two (2) speakers, let us follow your order that they signed up. Okay, Glenn. GLENN MICKENS: For the record, Glenn Mickens. Thank you, Jay. I just want to say upfront these are my opinions. I think I have the right to speak my ideas. There is nothing personal I had to say regarding Al. I want that put in the record also. As a person, I like Al, okay, but my views may be countered to that, but it will never be any different than I like the man. You have a copy of my testimony. You can read it along with me. Kaua`i is hemorrhaging money for the cost of legal services. The extent of such cost that arise from the failures of our County Attorney, Al Castillo, are not readily ascertainable, but nothing in his work experience has qualified him to manage a staff of up to nine (9) attorneys and oversee the services of retained Special Counsel. The work of the County Attorney is largely shrouded from public view. Few of the County Attorney's Office opinions are made public, but those that have, have received uniformly stinging reviews. The County Council is entangled in a record raid of Executive Sessions, a number of which have been called by the County Attorney to rectify costs, overruns, by Special Counsel greater than approved amounts. To-date, twenty-nine (29) Executive Sessions have been held in an apparent effort by the County Attorney, to punish our County Auditor for disclosures made in his audits. The role of the County Attorney in the recent settlement of the Bynum case was highly dubious. Neither Gary Hooser nor Mel Rapozo are lawyers, but they are both experienced in legal affairs. If they have lost confidence in the lawyer that the County Council is obliged to use, then he needs to go. I support their Resolution sought to dismiss Mr. Castillo as our County Attorney. Thank you. Chair Furfaro: Thank you. Ms. Fountain-Tanigawa: Sandi Sterker. SANDI STERKER: Council Furfaro, Councilmembers, Council Chair. I am not here to support Al Castillo for his job that he does. I am here to support him as a man. There was a statement made by Ben Crenshaw that said, "Golf is a game played on a five (5) inch course," that is between your ears, the five (5) inches. To know a true nature of a man is to play golf with him. I have played golf with Al Castillo. He is a golfer. I was privileged to play because I am not much of a golfer and I can tell a lot about his character by playing golf with him. He is a man that has manners. I have never seen him treat anybody with anything but respect, and that is, to many people, that it makes no difference whether they COUNCIL MEETING 60 MAY 28, 2014 respect him or not, whether it is the cart man, whether it is a child that wants to have a ball, he is right there, always willing. I think that he has made commitments that have been under difficult situations. There are times when we had not really nice weather and he was doing it for charity. This had to do with the Lions, and he had other commitments to do, and he always did what was right. You can know a man by the knowledge he plays by, and those are the rules. I have always seen him play by the rules. I have seen him a reaction to crisis. He is always calm, collected, and he does not stress a lot. I think that is a necessary thing. A lot of people live by stress alone, not Al. I have watched him grow from the time that I first knew him and the one thing that I have always enjoyed is his humor. I think that he can see the good in many times when other people do not. There is one (1) way that you can always know how somebody reacts and that is to watch how they tip. I can tell you, I would always be proud to eat with Al because I know he is a good tipper. Thank you. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is Lonnie Sykos. Mr. Sykos: Good afternoon Council Chair and Councilmembers. As I understand this, we are not here discussing Al's character, his behavior, or any of that. The question before us raised by the Council is whether or not the County Attorney is appropriately and properly providing legal services for the County Council. I would like to take exception to what the Mayor said because although the County Attorney is part of the Administrative team, he is also part of the Council's team, but more importantly, the County Attorney represents the public. He does not represent the Mayor. He does not represent the Council. He represents the public. The government is the public and so we are getting into a very fundamental Constitutional area here in regards to who does the County Attorney serve? So, the Mayor is quite happy with the County Attorney's service for the Administration, but that is one-third (1/3) of who he represents. So, whether or not the Council is happy with his service is up to the Council and the Mayor should not take offense if the County Attorney does a good job for the Mayor and the Council does not think he is doing a good job for them. For the pubic, it is a mix bag just like with the Administration and the Council. Some members of the public think Al does a great job, other members of the public do not, but this issue before us is whether or not the public is being well-served by the County Attorney. So, I thank the Council for bringing this up. I, quite frankly, if I had the authority and the power, which I do not, to decide whether the fire him or not, I would not because he is doing what the Mayor wants him to do. So, in this matter, it is a matter of politics. So, who is the County Attorney's boss is one of these Charter issues that is kind of up in the air. So, I do not hold it against Al personally for doing what the Mayor has asked him to do, and he has obviously, fulfilled what the Mayor wants him to do. The question is whether the County Council can bend his legal talents to do what you want to do. In the end, if both Council is happy and the Mayor is happy, the public should be happy. So, that is my two cents ($0.02). Good luck. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Ken Taylor. Chair Furfaro: Next. COUNCIL MEETING 61 MAY 28, 2014 Ms. Fountain-Tanigawa: Next speaker is Emmy Bamera. Oh, I am sorry. Ernie Barreira. Chair Furfaro: Take that as notice about your penmanship. Was that Alice you called him? ERNEST W. BARREIRA, Budget & Purchasing Director: Ms. Buza Simms would not be pleased. Good afternoon, Chair. Chair Furfaro: Good afternoon. Mr. Barreira: Good afternoon members of the Council, Ernie Barreira, Budget & Purchasing Director. I thank you for the opportunity to allow me to come before the Council to speak on behalf of Mr. Castillo. I have known Al Castillo since 1986 and in our twenty-eight (28) years of working together, I have been quite impressed with his legal acumen, his knowledge, his ability as an attorney, and his character as an individual, not only as a son, a husband, and a father, but as an outstanding public servant, and as a very good friend. Back in 1986 when I first met Al, he was the First Deputy Prosecuting Attorney for our County and in that regard he served in an administrative capacity because a Mr. Kollar can defend, the First Deputy serves a vital role in providing administrative support to the Prosecuting Attorney. In that period of time when Al became the County Attorney, he left a very lucrative, very successful, and very profitable law practice. The Council was blessed...the County, the Council, and Administration was blessed. We are blessed to have Mr. Castillo because he was one of those very few attorneys that possessed an extensive involvement in the various practices of law in both Circuit and District Court, in Family Court, in the Civil Proceedings, and in the Appellate proceedings. He came with a widespread view and experiential base in the practice and exercise of the legal system, and that was admirable. His leaving private practice was not for pecuniary gain. It was for his desire to continue to serve the public and exercise his value system bestowed upon him by his parents, that the public good is always first and foremost. I have found Mr. Castillo in the years that I have worked with him, to have an uncompromising level of dedication in the field of law, effective case management as both a First Deputy Prosecutor and as our County Attorney, he is a gifted and talented litigator, and members of his team who have gone against him in court can testify to that. He has had vast legal experiences as a litigator in all elements of the law, but most importantly, my admiration for Mr. Castillo is that he has maintained the highest level of ethical standards in the exercise of his duties and responsibilities as an attorney. In my capacity as your Budget & Purchasing Director, I have had to seek the assistance of Mr. Castillo and his very gifted and talented staff on a number of occasions. You all know the complexities involved in public procurement, in the exercise and the acquisition of goods and services, and the contract requirements that come into play when we acquire these goods. Also, during the very expeditious and timely budget process, I have had to seek his counsel on many, many occasions for very sensitive matters having to do with our budget. His guidance and expertise along with his staffs guidance has enabled us to make sure that we stay within the law in the exercise of the annual budget, which is by far the heartbeat of the County of Kauai. I have heard a number of times commentary in terms of being very complementary to the team that Mr. Castillo had put forth, but not necessarily liking the coach. The very gifted and talented people that make up the County COUNCIL MEETING 62 MAY 28, 2014 Attorney's staff, both the Deputy County Attorneys and the support staff, do not simply fall from the sky. The acquisition... Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Barreira: ...and the development and the accumulation of that team is a result of effective leadership at the hands of Mr. Castillo. We are not only... Chair Furfaro: Ernie, that is your three (3) minutes. Mr. Barreira: Shall I conclude? Chair Furfaro: You may summarize. Mr. Barreira: I will conclude. I am very proud to have Mr. Castillo servicing us in the County of Kaua`i, but most importantly, it benefits the people because ultimately, they are the beneficiaries of his excellence and hard work. Thank you very much. Chair Furfaro: Thank you. Mr. Rapozo: I have a question, Mr. Chair. Chair Furfaro: Yes. Mr. Rapozo: I guess I will be asking this question of every employee that comes up to testify because I know you folks were here in the morning as well. It is quite an expensive gallery if you look at the...are you here in the capacity of the Budget Director or are you here in your personal capacity? I will be asking everyone the same so you can think about the answer as you prepare to come up. Are you on any paid leave to be here today? Mr. Barreira: I am here today, sir, Councilmember Rapozo, as all of those capacities. I am not on paid leave and the reason for that is the services that are provided by Mr. Castillo as the County Attorney is vitally important to the execution of my duties as the Budget & Purchasing Director and any potential risk of losing those services would be a tremendous lost to me and my capacities and my abilities to serve the people of this County. Mr. Rapozo: Okay. Thank you. Chair Furfaro: Next speaker, please. Who is next? Ms. Fountain-Tanigawa: Larry Dill. Chair Furfaro: Mr. Dill, I believe, went to an emergency meeting of the Water Board. Am I correct? Yes? Okay, next speaker. Ms. Fountain-Tanigawa: Next speaker is Mike Dahilig. Chair Furfaro: I believe he also went to the same emergency. Mayor, I want to thank you for calling that Water Department together COUNCIL MEETING 63 MAY 28, 2014 for this emergency meeting for those in the Kalaheo-Lawa`i area. Thank you very much. So, I believe Mike is absent as well. Ms. Fountain-Tanigawa: The next speaker is Lyle Tabata. LYLE TABATA, Deputy County Engineer: Chair, Vice Chair, and members of the Council. My name is Lyle Tabata, Deputy County Engineer. My message today is about one. I have known Al Castillo for over forty-three (43) years. Back to our years, it was then known as the Waimea High and Elementary School. Over these many years of our lifetimes I have had many opportunities to run into Al in and throughout our community, most recently, working as one united team as a member of Mayor Bernard P. Carvalho, Jr.'s cabinet. Each and every time we have had held a mutual respect for our commitment of time towards the equity on our island community. We chose to make our life journey here like many of you too. With respect to the subject at hand, I do not support this Resolution No. 2014-35 and I feel that is not only an indictment of him and his staff, but to all of our fellow team members of our Mayor's cabinet. The support that we at Public Works receive is A/AAA, and I want to say that the leadership of Al and his team, which is part of the one, is impeccable. (Mr. Kagawa was noted as not present.) Mr. Tabata: We are one along with all the other members of this County team and in the same canoe working simultaneously towards the goals of our Mayor and our community, which includes the Council. If we were not one, we could not make the strides we are making as an Administration of this County. If you, the legislative body, of our one want to make the same strides, you need to be part of the one and not support this Resolution. I thank you for your time in advance. Chair Furfaro: Thank you, Lyle. Mr. Rapozo: Mr. Chair? Chair Furfaro: Yes, you have the floor. Mr. Rapozo: I guess I would ask the same question. I guess as you come up you can state your... Mr. Tabata: I am here in my capacity of the Deputy County Engineer as Mr. Dill was not available to represent Public Works. Mr. Rapozo: Okay. Thank you. Chair Furfaro: Thank you. Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is Kamuela Cobb-Adams. KAMUELA COBB-ADAMS, Housing Director: Aloha Council. Kamuela Cobb-Adams, Housing Director, County of Kauai. I am here in that capacity. I have some testimony, but I just wanted to talk about a brief story. (Mr. Chock was noted as not present.) COUNCIL MEETING 64 MAY 28, 2014 Mr. Cobb-Adams: I come from a team background. I have been on losing teams, I have been on winning teams. The losing teams, if something goes wrong they point the finger, they blame people, and they tear each other apart. The winning teams, they say you are having a problem, we are going to help you out and we are going to push that much harder to make it happen. I believe when the Mayor asked me to come here, the words I said was, "I want to make things happen," for on the Administration. That was my goal and I was elated when I got here because not only was I accepted by Bernard Carvalho's team, but I was backed up by every single one of them. With that, I would like to explain why I think Al Castillo needs to be with this County team. Chair Furfaro: Excuse me. I do hope you felt you were backed up by us as well. Mr. Cobb-Adams: Ninety-nine percent (99%) of the time, yes. Chair Furfaro: Thank you. (Mr. Chock was noted as present.) Mr. Cobb-Adams: So, I have worked in development both government and private sectors. In each capacity, I have dealt with attorneys. It is instrumental. You have to work with attorneys on everything when it comes to real estate. I worked with private attorneys, I worked with public attorneys. I think Al is probably among the tops that I have dealt with and I have a couple of reasons why I think that. First of all, I think his ego, he puts that on the side. It is not about...it is about the goal. Like I talk about sports. If we all want to score, he is about scoring and making things happen. So, in my experience as the Housing Director and also my staffs experience, he provided thorough, unbiased, and consistent legal advice to us. I think this has allowed us to make great decisions on everything from loans to fair housing discrimination things to contracts. This legal advice is instrumental to everything we do at the Kaua`i Housing Agency and has put families into homes and has allowed us to move forward with development faster than most situations have allowed. The Housing Agency has been able to aggressively pursue housing initiatives with the County Attorney's assistance and they have displayed, they, meaning Al and his team, has displayed innovative and consistent sound advice. In addition to being a good attorney, I think another thing Al exudes is good leadership. (Mr. Kagawa was noted as present.) Mr. Cobb-Adams: There are many good attorneys, but there are not many good attorneys who are good leaders. I think he is a good leader and it is evident in the talent of his staff. I think he provides the proper confidence, guidance, and humility to allow his staff to excel. Like a coach, and I have learned a lot from sports, like a coach, he allows his players to make plays. Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Cobb-Adams: He does not micromanage them. He creates an environment that allows his staff to thrive, remain positive, and maintain a unity even when dealing with some of the most tumultuous and controversial legal issues that I have ever been indirectly a part of. COUNCIL MEETING 65 MAY 28, 2014 Chair Furfaro: Okay, I do want to let you know your three (3) minutes went off. Mr. Cobb-Adams: Okay. Chair Furfaro: If you could summarize. Mr. Cobb-Adams: With that, I will respectfully appeal to this Council not to support this Resolution as Al and his team are instrumental to the Housing Department and the Housing Agency's goals. Thank you. Chair Furfaro: Thank you. Mr. Rapozo, do you want to ask a question? Mr. Rapozo: He already answered it. Chair Furfaro: Okay. Very good. Next speaker. Ms. Fountain-Tanigawa: The next speaker in Ronald Horoshko. RONALD HOROSHKO: Aloha, Chair and Councilmembers. Chair Furfaro: Welcome. Mr. Horoshko: My name is Ron Horoshko and I have known Al probably eight (8) years. My wife is Mona Clark, Deputy County Attorney. She has the highest respect for Al as a man and as an attorney. Al Castillo is an ethical, honest, and humble man. At a young age he wanted to be a Senator, a Senator of the United States of America. Al went to college and graduate school, and became a fine attorney. Al was handpicked by Mayor Carvalho to become Kaua`i's County Attorney. Al was on Linda Lingle's short list to be appointed as a Judge. This is bipartisan respect for his level of skill and integrity. Al took the oath to uphold the Constitution of the United States of America, the Constitution of the State of Hawaii, and the Constitution of the County Charter of Kauai. You will not strip him of his dignity. You may never, never ever crush his aloha spirit for Kauai. Al is respected by his family, his coworkers, and his true friends. What purpose is a Resolution that has no legal effect? Thank you. Chair Furfaro: Thank you. Next speaker. Ms. Fountain-Tanigawa: Next speaker is Justin Kollar. JUSTIN F. KOLLAR, Prosecuting Attorney: Good afternoon. Aloha, Council Chair Furfaro, Vice Chair, and members of the Council. For the record, I am Prosecuting Attorney, Justin F. Kollar and I am here today in that capacity to humbly stand in opposition to this Resolution. As grounds therefore, first and foremost, as a Department Head, I am completely satisfied with the services this County Attorney is rendering onto my Department. They are very satisfactory. As further grounds, much of my career has been spent in the Corporation Counsel environment practicing first in Boston in the early mid-2000s for Mayor Tom Menino, then here on Kauai for three and a half (31/4) immediately preceding my election to my current position. I am very grateful for the opportunities I had given to me by Al Castillo. I am very grateful for the opportunity I had to serve the people of those community as a Deputy County Attorney. Under the County Attorney's COUNCIL MEETING 66 MAY 28, 2014 management, I received much of the training, mentoring, and experience I needed to progress to the next level of my service as a public servant. Moreover, even prior to going to work for Al, I was learning from his as he kicked my `okole around the courtroom over and over again as a defense attorney. The role of the County Attorney, he had about twenty-five (25) more years more experience than me. The role of the County Attorney or the Corporation Counsel is, I believe, one to the most difficult in County government anywhere. It is the only executive position that requires both Administration appointment and legislative confirmation. The position requires serving various masters, dispersant masters, whose goals and objectives may not always be the same or even similar in any given situation. The job requires care, precision, intelligence, humility, and respectfulness. It is not an easy job, resources are scarce, praise is scant, the hours are long, and the glare of public scrutiny is bright. Nonetheless, during his tenure as the leader of Kaua`i's second largest law firm, Al Castillo has consistently done his best to serve his community with humility, respectfulness, grace, and above all, integrity. Having already served a lengthily tenure in the Office of the Prosecuting Attorney, as Ernie said, he shut a very lucrative private practice to return to public service as the County Attorney. He did not do this for the money, he did not do this for the glory, certainly not for the glory, but because he, in my estimation, truly wants the best for Kaua`i and although reasonable people may differ on what the best if for Kaua`i... Ms. Fountain-Tanigawa: Three (3) minutes. Chair Furfaro: Summarize please. Mr. Kollar: Yes, sir. It is an ideal of servant leadership that I certainly aspire to in my own career. This Resolution, if successful, I submit will have a chilling effect on attorneys who are contemplating entering into public service. I have a strong suspicion it will dissway attorneys who may be approached to serve as County Attorney in the future, and I humbly submit...I humbly request that you vote no on this Resolution. So, mahalo for your time and consideration. Thank you. Mr. Rapozo: Mr. Chair? Justin. Chair Furfaro: We have a question for you, Justin. Mr. Kollar: Yes. Mr. Rapozo: And I am assuming you are here in the capacity of the Prosecuting Attorney? Mr. Kollar: Yes, I also have several agenda items on today. Mr. Rapozo: No, but I mean for this item here, that you are here today. Mr. Kollar: Yes. Mr. Rapozo: One of the items, and we are keeping it broad in general, but I feel compelled because of the situations that has been raised about the positives that Mr. Castillo has done. I will not disagree with any of them COUNCIL MEETING 67 MAY 28, 2014 because I think that is true and I think I am very pleased that in fact that the County Attorney's Office has served the Administration, but one of the issues that was brought up on the floor here was the fact that Mr. Castillo had...was a very big supporter in your campaign and that subsequent to the election, you had hired his wife. That in fact, while sitting there, Mr. Castillo, did not want to answer that question. I mean, is that appropriate? Mr. Kollar: Well, that was a couple of questions there. So, what are you asking? Mr. Rapozo: Is it appropriate to not disclose the fact that his wife had been hired by the Prosecutor who he had helped? Mr. Kollar: I do not think I was ever asked to disclose that. I am not sure... Mr. Rapozo: Not you. Not you disclosing, but the County Attorney when asked by Mr. Hooser, directly, did not want to answer the question. Mr. Kollar: Respectfully, Councilmember Rapozo, I would have to suggest you direct that question to the County Attorney. Mr. Rapozo: Okay. I am just asking if you believe that was an appropriate response. That is an opinion, but I understand. Thank you. Chair Furfaro: Thank you for your testimony. Mr. Kollar: Thank you, Chair. Chair Furfaro: Let me indicate to the audience, we have five (5) speakers yet to speak. We are going to come up on a need to take a caption break. Is there anyone who wants to speak and has not signed up because we still have to go into our budget mode? Okay, next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Felicia Cowden. Ms. Cowden: My name is Felicia Cowden. I am just simply confused by this Resolution. I tried to research what Al Castillo's transgressions were and I did not find them very easily. Those things might have come up in Executive Session and I did not know about it. I take an interest in this because, well, I will own first. I do not always agree with his opinions. Certainly, the outcome of Bill No. 2491 from the County Attorney's Office was disappointing for me, but when I first encountered Al Castillo was when he was in private practice and I was dealing with some issues that are kind of broad brush strokes of concerns for the community. I felt that he gave me very candid, very quality advice and what I got from him was an insight so deep that when he later became appointed to the County Attorney's position, what I felt was, oh, good, thank God. I have taken an interest in his position more than many other people's position. So, he holds certain, what I would say, his depth of understanding of some of the dynamics on the island are very important to me and if he is being accused of being incompetent, that is what I felt like I was reading, we might be able to get somebody from somewhere else who is really, really sharp, but that is not the same thing of having a history of knowledge of all of these similar things. So, I cannot know because I do not know. It is not clear to me why he is under scrutiny. I have tried to look. I do COUNCIL MEETING 68 MAY 28, 2014 not get it, but I just selfishly want to say I feel safer knowing that he is the County Attorney. I feel safe with that and that means a lot to me. So, Mel, I am talking to you. I feel safe with him as the County Attorney and so short of some really, really super compelling reason of a terrible indiscretion that I would expect that would come with a rebuke like this, I am glad he is in office. Thank you. Chair Furfaro: Thank you, Felicia. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Glenda Nogami-Streufert. GLENDA NOGAMI-STREUFERT, Civil Defense Agency Manager: Good afternoon. Chair Furfaro: Good afternoon. Ms. Nogami-Streufert: I am Glenda Nogami-Streufert. I am the Manager of the Civil Defense Agency. I have not known Al Castillo very long at all, only since I have taken this job. So, I cannot speak to twenty (20) years of experience with him, but I can speak to the experience that I have had with him since I have been working. I think I look at people or Department Heads in two (2) different ways. Number one is the whether the advice that they give me and my Agency is accurate and something that I can rely upon. The second one is stewardship of their organization. On both of them, I think that Al Castillo has been great. He has been on point with any kind of advice he has given me, but in addition it which, his stewardship of it by his assignment of different attorneys to different Agencies has been great. We are very pleased to have Nicholas Courson as our attorney and that is part of what Al does because he assigns people. That is one of the distribution of your responsibility...I am sorry. One of the responsibilities that one has is to be able to prioritize things and to look at where you can best utilize the talents of the people that you have. I think that is what he has done. The other thing is that I have heard that there is a disagreement as to...on issues. Disagreement on issues, from my perspective, is not bad because you do not want a person who is going to be a "yes man" all the time, not a "yes woman," because you will never find a "yes woman," but you might be able to find a "yes man." He is not that because what you have is that if you find someone who agrees with you on everything, then one of you is superfluous. Unfortunately, I did not...I was not the one who came up with that. I think it was either Roosevelt or Churchill, but I agree with that, that you want someone like that like that. Al is also someone that, and I also make a distinction between morals and integrity. Morals is what you show on the screen, what you wear on your sleeve. Integrity is what you do when no one is looking. From my perspective from what I have seen and what I have lived with Al for the last, professionally, in the last six (6) months that I have been working is that he shows a lot of integrity. He does things when nobody is looking. He does the good...he does the right thing when no one is looking. Part of that is the Executive Sessions. Someone was saying that there are Executive Sessions where nobody listens. Well, no one is privy to. I think that is a tribute. That is not a criticism because there a lot of things that attorneys have to do that should not be put into the public eye until they are ready to be put into the public eye. It does not mean that you do anything in secrecy, but that you have your considerations so that you can air all of the differences, you can air all of the issues. So, I am very proud to be working with Al Castillo and I thank you for the opportunity to give this testimony. COUNCIL MEETING 69 MAY 28, 2014 Ms. Fountain-Tanigawa: Three (3) minutes. Chair Furfaro: Thank you. Mr. Rapozo: Mr. Chair. Chair Furfaro: Hold on. Mr. Rapozo: And you are here your capacity of your official employment capacity of the County? Ms. Nogami-Streufert: That is correct. Mr. Rapozo: Okay. Thank you. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: Next speaker is George Costa. GEORGE K. COSTA, Director of Economic Development: Aloha Chair Furfaro and honorary Councilmembers. For the record, George Costa. I am here representing in my official capacity as the Director for the Office of Economic Development. I have known Al Castillo for just approximately five (5) years when I came into the County government. I am here to support the County Attorney's Office and Al Castillo. I n the short time I have known Al, I have been impressed with his leadership of the County Attorney's Office. The team he assembled to represent the Administration, you, the County Council, and our community of Kauai is truly remarkable. It is comprised of Kaua`i's bright young minds and reflects a positive future of legal representation for the County. It is amazing that the guidance that they provide, the County Attorney's Office provides for the office of Economic Development. We rely heavily on their advice and their guidance whether it be workforce development contracts, whether it be energy contracts, or sustainability. As you know, there is a lot that we do in our Department and we have always relied on Al and his team to provide us with that advice. As of recent, Bill No. 2491, now Ordinance No. 960, has been contentious to say the least, but I have been very impressed in working with Al, with his confidence and with his calm demeanor in guiding us through that process. Again, it is something new to me in this arena and I have felt very confident in working with Al and knowing that he providing us with very sound advice. So, today, I am here to support Al Castillo and ask you not to support this Resolution. Thank you very much. Aloha. Chair Furfaro: Thank you. Mr. Rapozo, do you have a... Mr. Rapozo: Same question. Mr. Costa: Yes, I am here to represent the Office of Economic Development. Chair Furfaro: Thank you, George. Mr. Costa: Thank you. Chair Furfaro: Next speaker. COUNCIL MEETING 70 MAY 28, 2014 Ms. Fountain-Tanigawa: The next speaker is John Blalock. JOHN T. BLALOCK, Deputy Fire Chief: Good afternoon Chair and Councilmembers. For the record, Deputy Chief, John Blalock. I am going to be speaking in the capacity of the Deputy Fire Chief representing the Kaua`i Fire Department because I am a proud graduate of Kapa'a High and Elementary School. Again, for our side, it is for the Department what we have been afforded through Al's tenure has been just totally outstanding. I have been though two (2) different County Attorneys and since Al had taken the reigns of this Department, the response that we have had has been just...talk about expeditious. We would call them on weekends and maybe having a meeting at the last minute because we had all the players there and we wanted an opinion and not rescheduling a meeting, they would drop everything and be down in five (5) minutes so that we can get this meeting done and move forward, and not try to delay things and move things to another week. I think that sheds a lot on Al's leadership and what he has done to form this team that serves the County as a whole. Again, we are in support of Al and not in support of the Resolution that is presented now. Again, this is all a reflection of Al's leadership and what he continues to do for our County. Thank you very much. Chair Furfaro: Next speaker, please. Ms. Fountain-Tanigawa: The last registered speaker is Ian Jung. IAN K. JUNG, Deputy County Attorney: Good afternoon Chair and members of the Commission...or members of the Council. My apologies. Unlike the Department Heads who were asked to attend this meeting for both the Resolution as well as the final reading of the budget. Myself, my fellow Deputies, as well as our staff members are on paid leave for this matter because we want to be here to support our boss. Normally, you would hear me give my presentation without reading, but I think our office wants to provide a letter, and we will certainly hand that out to you, but I want to read it to you folks because I was once taught that you know a leader from those who he leads. I would like to read this letter on behalf of our office. Aloha Council Chair and Councilmembers. On behalf of all Deputies and staff of the County Attorney's Office, we submit this testimony in strong opposition to Resolution No. 2014-35. Resolution No. 2014-35 states that "the Council has become increasingly dissatisfied with the performance of the County Attorney and the advice provided to Council" and requests the resignation of County Attorney Alfred B. Castillo, Jr. Those who are actually managed by the County Attorney, with an intimate knowledge of this office sees this on a daily basis, right? Emphatically state, that there is no evidence of poor performance by County Attorney or mismanagement of his office. The Office of the County Attorney does not solely serve the County Council. Rather, the Office of the County Attorney serves a total of sixteen (16) Departments, sixteen (16) Boards and Commissions, the Administration, and over one thousand three hundred (1,300) employees on a daily basis. In addition, the office deals with nearly (and occasionally over) seventy (70) years of corporate history that continually lends itself to the creation of complex County-wide issues. This Office represents all of those clients with a current staff of eight (8) attorneys and five (5) support staff servicing the entire County of Kauai. What you might ask yourself, does this mean in practical terms? On a daily basis, there is constant movement within the County to serve the public and maintain a functioning system of governance and government services. That movement COUNCIL MEETING 71 MAY 28, 2014 includes both large ticket items, including multi-million dollar projects, Capital Improvement Projects, land use transactions, in addition to hundreds of what some might consider some small items, including numerous day-to-day questions and requests, including such as "can this item be procured," "can this agreement be signed," "what is the ramification of denying this particular request," "what is the liability associated with writing this type of approval," "how should this document be drafted," "who should sign these plans," and the list can on and on. The Office of the County Attorney is often called to answer these questions with its staff of eight (8) attorneys and five (5) support staff. Answering day-to-day questions is our duty, in addition to the numerous claims and lawsuits that are brought against the County. Responding to these claims and lawsuits is the sole responsibility of the Office of the County Attorney. Essentially, we must either fix, fight, defend, or affirmatively go after others in the form of litigation, which takes a significant amount of time and manpower. Do not mistake the fact that it is our job to respond to these claims and lawsuits with the notion that it is we that created them. Chair Furfaro: Excuse me, Mr. Jung. Your three (3) minutes went off, but I will give you a little more time. Mr. Jung: I guess what I will do is I will summarize. Chair Furfaro: No. Listen to me. Listen to me, not to Mr. Bynum. Because you are representing the Department, I will give you another three (3) minutes. Mr. Jung: I appreciate that, Chair. Chair Furfaro: Fair enough? Mr. Jung: Fair. Thank you very much. I will continue. It has become a complicated world, and there are a myriad of decisions and actions that County employees make and do daily that lend itself to the operations of the County, and more often than not, those decisions and actions, whether they were decided upon or taken or not, end up in the County Attorney's Office. Specifically, these claims find their way to the office of only one (1) of eight (8) attorneys, getting processed and managed by only five (5) staff members. Knowing what the Office of the County Attorney does on a daily basis, there is no evidence of poor performance of County Attorney and no mismanagement of this office. Mismanagement and poor performance, in the world of the general population, comes when you are given every tool available to get the job done, and the job still cannot get it done. In this instance, however, adequate tools have not been given to the Office of the County Attorney. For example, the training fund for the past couple of years has totaled (and this is yearly) for one dollar ($1). Any requests for more positions are continually denied, and in spite of all of this, any requests for Special Counsel by our Office is responded to with appall. However, we still manage to try and get the work done. If anything, there is stellar performance by our County Attorney in completing his duties. Al has fostered an atmosphere of cooperation, mutual respect, and teamwork that allows the Office of the County Attorney to make do with less. Additionally, he has provided clear leadership, consulting with all of his employees on a regular basis, and keeping the efforts of the Office of the County Attorney coordinated and united. Not every client of the County Attorney's Office is COUNCIL MEETING 72 MAY 28, 2014 satisfied with the advice that we give. In fact, more often than not, our Office has to tell a client "no," "no can," or "can, but be faced with the risks that come." This Office is not merely concerned with getting things done, but is rather concerned with getting things done according to the law, and sometimes that means a client will not hear what they are hoping to hear. The County Attorney's job is not to make people feel good. It is to give them sound advice, whether they take it or not is another story. We deal with the hand we are dealt and we do our best to protect the County. The County Attorney and we, as his staff, face those challenges with one (1) concern, what is best for the County? Indeed, that is a question which Al often asks of us on a quite often daily basis. What is best for the County? We encourage others to ask themselves the same question before taking any action while in a seat of public trust. Is what you want to do best for the County? On speaking on behalf of all of us in the office, the attack on Al, we see as an attack on all of us because we all coordinately do the work together. Al signs off on the work, but we all do the work. Thank you. Chair Furfaro: Excuse me. May I please have a copy of what you read, and do I assume that it was signed by all the attorneys in the office? Mr. Jung: Yes, Chair, it was signed by all of the attorneys. Well, all of the line Deputies as well as the staff members. Chair Furfaro: I just want to get some clarity since your last statement, I think, I have had a pretty good relationship with all of you folks in the office there. So, I am a little bit concerned about that, but let me say this one dollar ($1) funding that you talked about and the fact that last year your budget was cut by two hundred fifty thousand dollars ($250,000) and the year before that it was cut by five hundred thousand dollars ($500,000). You do know that was not down by the Council. Mr. Jung: Sure, I did. Chair Furfaro: I just...in all fairness. I mean, you are talking about not being provided the tools, but the budget comes over to us cut. Mr. Jung: We recognize that, Chair. Chair Furfaro: Fair enough that you recognize that. Good enough. Mr. Rapozo. Mr. Rapozo: That was my...I was going to clarify that as well. The dollar funded training and the positions was not cut by the Council. It was not. Mr. Jung: Okay. Chair Furfaro: Just needed to clarify that. Mr. Bynum. Mr. Bynum: Just to clarify a little further if you know, did we not just cut a position from the budget in this last...have I got that wrong? Mr. Jung: There was a position that was gone to half-time from what I understand. So, part year. COUNCIL MEETING 73 MAY 28, 2014 Mr. Bynum: Okay. I will find out later. Thank you. Thank you for your testimony. Chair Furfaro: I can share that with you. That item came over as one (1) position dollar funded. Any further pieces? And the last question, I do want to make sure we all understand, we are not part of the Administration, the body over here. You obviously realize that we are the legislative body. Mr. Jung: Sure, and we...just like you do, we also respect the Charter and the organizational framework it establishes. Chair Furfaro: Very good. Just wanted to make sure because I have heard a few comments about we should follow the Administration" and so forth. It is called "checks and balances" and that is why we are separate. Mr. Jung: And it is a beautiful thing, Chair. Chair Furfaro: It is a beautiful thing. Thank you so much. Ms. Fountain-Tanigawa: Council Chair, we have one (1) last registered speaker. Chair Furfaro: May I see that letter please, and who is that last speaker? Ms. Fountain-Tanigawa: The last registered speaker is Sherman Shiraishi. Chair Furfaro: Sherman, come on up. SHERMAN SHIRAISHI: Mr. Chair and members of the Council, my name is Sherman Shiraishi and I am here as a private citizen testifying against and in opposition to the Resolution. I am attorney in private practice. I have been practicing for thirty-five (35) years and during that period of time, I have had a lot of dealings with the County Attorney's Office, not merely with Al and his staff, but previous County Attorneys. My dealings with Al and his staff, they have always been fair with me, they have been conscientious, and my request, a lot of times I deal with Real Property Tax Office, Planning, Water, et cetera. My dealings with them have always been fair. I believe that the attorneys in the County Attorney's Office are competent, they are diligent, and they are conscientious. Al does not have a good job. I do not envy Al. Unlike Al, I can pick and choose my clients. If I do not like their case, if I feel that I may not be successful, I can always say, "Hey, I do not want to take your case. I am too busy," but Al has his job. He has to do it. He cannot pick and choose his clients like I can. He has a lot of masters and I applaud him for juggling whatever he has to do. I am not privy to any of the concerns that Council has with his office. All I can do is state my experience regarding Al and his office. My question becomes if not Al, then who? Al has a wealth of knowledge. He was in private practice prior to him assuming the duties of the County Attorney. He has a lot of experience in civil and criminal law which he brings to the office. He is also a life-long resident like me. He understands the concerns of Kaua`i and its people. For those reasons, I would recommend that the Council not adopt the Resolution. COUNCIL MEETING 74 MAY 28, 2014 Chair Furfaro: Thank you, Sherman, Thank you for coming down. Mr. Shiraishi: Thank you. Chair Furfaro: Any more testifiers? Ms. Fountain-Tanigawa: We do not have anyone else registered to speak. Chair Furfaro: Okay. I would like to ask Mauna Kea to come up. MAUNA KEA TRASK, First Deputy County Attorney: Aloha Honorable County Council. For the record, First Deputy County Attorney, Mauna Kea Trask at your request. Just for the record... Chair Furfaro: No, I have questions for you young man. Mr. Trask: Thank you, Chair. Chair Furfaro: I just noticed that the submission that they gave us for all of the attorneys in the office is without your signature and I assume that was to indicate if we needed Counsel, you would be available to us? Mr. Trask: That is correct, Chair. Chair Furfaro: That is why you have not signed this? Mr. Trask: That is why I have not signed it. It was in order to ensure that I can maintain, at least, the appearance of fairness in this case. It is...yes. Chair Furfaro: Thank you. I just wanted to clarify that for the record because they said "all the attorneys in the office." Mr. Trask: I think he said "line Deputies." Chair Furfaro: Said what? Mr. Trask: Line Deputies. Chair Furfaro: Oh, I am sorry. I did not use the right job description. I am sorry. Okay, questions? Okay, we are going to go into discussion. I think we have no more need. Mr. Trask: Thank you. Chair Furfaro: Thank you very much for leaving that door open for us. The meeting was called back to order, and proceeded as follows: Chair Furfaro: We are in discussion now. Mr. Kagawa. COUNCIL MEETING 75 MAY 28, 2014 Mr. Kagawa: Thank you, Chair. First of all, I will not be supporting this Resolution. I think we have a solid bunch of County Attorneys and thanks to Al's leadership, they are all happy working there, doing their jobs, and I thank you. Have I always been happy with the County Attorney, his performance on matters that we have had before this Council while I have been in office? No. But it is easy for me to say "We should have done this" because I am not the one handling it and it is always easy to second guess, but I am not an attorney. Can I do a better job? No. Has this been an ordinary year? We have had things like Bill No. 2491, we have had the Bynum lawsuit, and so on. It has been a very frustrating year for me and to be honest, I think I am more upset at the actions of this body than the actions of the County Attorney's Office, but that is how it goes. We have seven (7) members and I have not been on the winning side of a lot of the critical issues, but I have held my ground. I have voted my conscious and that is just the way the ball bounces. Today, I bumped into our Pop Warner coach, Richard Ueoka. It is just ironic that I bumped into him because I did not know this was...well, I mean, I heard that it was on the agenda, but I did not know it was today's agenda. I thought maybe it was perhaps next week or the following weeks. I bumped into him and he was like a Vince Lombardi for all of us. He mentored Coach Tommy Rita and everything. The common thing that would come out of their mouth is "When you lose, do not blame the other person. You blame yourself first." I think a lot of times we are pointing the finger, but there is...maybe we should have taken that step before and tried to work with the County Attorneys prior. Hopefully, that is what can come out of this, is that we can have better communications with the Mayor and with the County Attorney. I discussed the County Attorney's performance with Al directly and one of the suggestions that we came up was honestly, that if we get a litigation, a strong Litigation Team, perhaps we have cure some of the large expenses that go out to these expensive O`ahu attorneys and I agreed with him. I told him that one of the solutions that I had was that he could fund that attorney position out of the funds, out of the attorneys for outside Counsel, and if that outside Counsel moneys ran out going into next year, that the Council could put back money in knowing that he tried to save us money actually, by expanding the Litigation Team. That was not, I guess, the answer he wanted. He wanted us to just fund that one (1) position, but he understood that times are tough with the budget. Some of trust on the Council may not be where it needs to be to get that position just filled immediately, but that is what it takes. It takes collaboration, working together, and going forward. I think passing a Resolution like this makes us go backwards. So, I urge Councilmembers to please, vote "no" on this Resolution. I just want to make one (1) last note, in that I was personally very pleased with the County Attorney's opinion on Bill No. 2491 and being that it was released, it was very thorough and braced us for what was to come if we approved it. After all, the seed companies were right here before the opinion was even released and said for the record that they would be suing us if we approved the Bill. So, at least we knew from our attorneys, what was to come, and that is why I...a huge reason why I voted "no" in the end. I just want to thank the County Attorney's Office, keep up the good work, and Al, I hope you remain there. Thank you. Chair Furfaro: Thank you, Mr. Kagawa. Next speaker? Mr. Rapozo. COUNCIL MEETING 76 MAY 28, 2014 Mr. Rapozo: Mr. Chair, yes, I think it would be appropriate for me to speak as one of the introducers. I guess I will preface my comments by saying that I was, I guess, kind of surprised that the light attitude, the laughter...it is a pretty serious Resolution and I guess I was just kind of surprised at that. Let me just start off by saying, this Resolution was submitted to our staff on March 27th. That is two (2) months ago. The Chair requested sixty (60) days before he puts it on the agenda to work with the Administration, to talk to the Mayor, to talk to the County Attorney, and that occurred. So, for the last two (2) months, and this is for the public, for the last two (2) months, there have been discussions between the Office of Council Services and the Administration as to this issue. So, I do not want the public to think that we dropped this bomb today. This was officially put in sixty (60) days ago, no March 27th. So, I need to clarify that. So, there has been ongoing discussion between the Council and the Administration. We represent, we here, represent the people of Kauai, not the Administration, not the Department Heads. We represent the people. We are tasked with the oversight, as the budget is here today, and that is what our job is as the County Council. This Resolution is no reflection of the attorneys, including Al, in the County Attorney's Office. I agree with all of the comments that I think the Attorney's Office has a stable full of great attorneys. The Resolution has nothing to do with the ability. I have known Al for a long time, worked with Al in the private sector for many years as an investigator. This specifically, references the management of the office. You all do not see what goes on in the litigation in the cases. Yes, you all got the projects, the contracts, the affordable housing, and all of that. Yes, turn it over, the attorney reviews it, yes, makes things happen, and I am glad and I applaud that, but you all do not see what goes on, including the Mayor, what goes on behind that door. The "I do not knows," "I cannot answer that," and the fact that this Council has to send second and third requests to the County Attorney's Office for information. Mr. Shiraishi, your client would not be your client long if you did that. That is the truth. Your client would not be your client. They would go find another attorney if you did not get back to them on pressing matters. It is very difficult for me to sit here, and it is difficult to hear some of the comments from even my colleagues because I know what everyone feels because we have discussed it and to come out here and hear a different story, it is difficult for me, but I respect everybody's position. This is a very...as one person called me yesterday and said, "Mel, the timing is wrong because it is an election year." It should not matter. Do we only work on non-election years? No, we do not. We work every day or every year. This issue is not new. It goes back to way back when the Transient Vacation Rentals (TVR) enforcement. I mean, if you folks...some of you may remember I did not support the appointment. I was the only one that voted against the appointment for Al because of the way, I believe, the TVR Bill was being handled, that I felt the standards of the County Attorney should be high and although I lost the battle, I respect the position of the Council and have tried very hard to work with the County Attorney's Office. Again, Al is included, their ability to practice law is second to none. Ian, Mauna Kea, all of the young attorneys, I think are very good attorneys, very good attorneys, and this is not my issue. My issue is not the quality of attorneys in the office, it is the management. I think it has been said already that the County Attorney is not the Administration's Attorney, it is not the Public Works attorneys, it is everybody's attorney. I believe we should be treated with the respect as well. I have often said on the floor out here that you get paid one hundred thousand dollars ($100,000) a COUNCIL MEETING 77 MAY 28, 2014 year, "I do not know" is not an acceptable response. We do not hire people at that level and expect to train them or have On the Job Training (OJT). They should come with that skill set. My issue is not with the County Attorney's opinions. I mean, an opinion is just that. I do not have to agree with the opinion. That is not my concern. This Resolution was not triggered by any one (1) opinion. In fact, the last opinion, the big opinion that the attorneys...I agreed with, but that it not why the Resolution was made. This last year and a half we have had issues, very, very strong issues about Special Counsel, the fact that we are spending more money on Special Counsel, the fact that we are paying attorneys more than what the contract says, and the fact that the contracts are not being adhered to. That is evidence by, two (2) weeks ago, Mauna Kea coming up having ten (10) Executive Sessions to bring our cases up to par. What triggered that? Could it have been this Resolution? Maybe. My point is this, for the last year and a half, this Council has been crying, offering suggestions, begging the County Attorney's Office try this form. Peter Morimoto, our Legal Analyst, he does not have the authority to represent this Council, but he provides us with valid...as does Christiane Nakea-Tresler, with valuable legal advice or legal information. We give that to the County Attorney, I believe a year and a half, about a form how to assess a litigation case when we get sued. Never implemented until when, Mr. Chair? A couple of weeks ago? A couple of weeks ago, a month ago. We have offered the suggestions, come to us ahead of time before we run out of money. No. We are funding bills that we owe and that is not how it is supposed to be. Again, it is not the ability as an attorney. It is the management of the office and that is a concern. I have spoken to the Mayor. I have spoken to the Managing Director. We did not, I did not personally, do not feel anyway that I have received the satisfactory results enough that I believe things will change. This is a very harsh action. It hurts me to do it, to be honest, because Al and I have gone back a long way and I like Al as a person. I really do. I enjoy talking to him, but our job here is to protect the County. Our job here is to...and we are in a session and the budget time that we are trying to figure out how the heck we are going to pay our bills and we need to have the County Attorney's Office run efficiently. We need to have that County Attorney's Office. We cannot spend seventy-five thousand dollars ($75,000) to tell us that we have to settle a case. We cannot do that no more, and that is just the predicament that I am. I do not know where else to turn. Again, I have spoken to the Mayor, I have spoken to Nadine, and it is just results were not seen. I am not going to apologize for this. Like I said, it pains me, but this again, is no reflection on the staff and the attorneys because I believe they are good attorneys. It is just a matter of figuring out a way to manage that Department much better so the taxpayers does not have to fund the inefficiencies of that office. Thank you. Chair Furfaro: Mr. Hooser, you have the floor. Mr. Hooser: Yes, thank you, Chair. It is a very difficult position that we are in and Councilmember Rapozo said a lot of what I had intended to say and I will reinforce some of it. We do not agree on a whole lot of issues often times. We are friends and we look for the common good, but we differ on a lot of other issues. I think it is telling when you see the two (2) of us both co-sponsoring this. What Councilmember Rapozo said about what happens in that room, I think, is also really the crux of the matter. It is interesting to hear the glowing reports from the Administration, and I do not doubt that, but I think if all of us were honest on this side of the rail, we would all acknowledge that the reports are not all so glowing when we are in that room and when we are out here today, whether it rises COUNCIL MEETING 78 MAY 28, 2014 to the level of supporting this Resolution or not, for some, it may not, but for me, it does. It is more out here under the glare of the political spotlight, the election year, and all of you, perhaps to acknowledge dissatisfaction with another person who works with all of us and who is a very nice person. I feel compelled and it my responsibility as a Councilmember to confront these issues. I also agree with Councilmember Rapozo that the Administration has been aware of this situation, and I think it is disingenuous to indicate that they were not. This has been discussed at length. As you can imagine, putting a Resolution like this forward is really, a last resort. This is not a question of Mr. Castillo's character. It is not about how he has served others in the past. It is about whether the Council and its members have confidence in the County Attorney's Office. It is clear, I think everybody realizes it, at least two (2) of us here today, do not have that confidence. (Mr. Kagawa was noted as not present.) Mr. Hooser: This is not about Mr. Castillo's skills as an attorney. This is not about whether he is ethical, honest, or humble. It is about judgment and advice that is given to the Council day after day, that I for one, am not pleased with. It is about advice. Another speaker said that they felt the advice given was accurate and they could rely upon it. I feel differently. The advice has not been always accurate and I do not feel I can rely upon it. So, what do you do in my situation as a Councilmember? What do you do in a situation like this? Do you just look the other way and say, "Well, it is okay. We will just act like it is all cool," and then wait until an election cycle runs through and maybe the Mayor, maybe all get elected, maybe not. Maybe the Mayor will be elected, may not. Maybe he will appoint the same person. No. If I truly believe that the community is not being served appropriately by this particular individual who is a position of great leadership, what am I supposed to do? Am I supposed to reach out to that individual, which I did? I am supposed to reach out to the Administration, which I did, and nothing happens, what am I supposed to do? So, I chose this route and Councilmember Rapozo agrees. Whether the other Councilmembers do or not will be yet to be seen. This is not about Bill No. 2491 as some might want to frame it. This is about many, many decisions over the year and a half or so that I have been in public office and it started early in the session with decisions that were made here at the counter. (Mr. Kagawa was noted as present.) Mr. Hooser: We are at a disadvantage here because we were told by the Chair, rightfully so, that we could not discuss items. We cannot discuss the problems. We can talk about the successes, but we cannot discuss the problems. So, this is a one-sided conversation that we can only infer or allude to. We cannot discuss specifics. In addition to a number of decisions and judgment calls by the County Attorney that I feel were improper, incorrect, and I do not agree with, there is a day-to-day service sometimes that, often time from my personal experience. We ask the County Attorney's Office for advice, for opinions, and for reviews. I got from staff, a number of them, I think all of them for the past six (6) months or so. This is one that took me three (3) months to get a response. Here is another, two and a half (2%) months and it was no response at all. They did not answer the question. They refuse to answer the particular question that I asked. This is a question that has been asked by the public over and over again, and they are saying to me, "Gary, why do you not do something? Councilmember, why do you now find out what is going on with this issue?" So, I am asking the attorney, I am waiting two and a half (2%) months, and not getting an answer. Here is another COUNCIL MEETING 79 MAY 28, 2014 one. Seven (7) weeks, three (3) requests. Three (3) times I have to ask and it takes seven (7) weeks to get a response. Here is one that took four (4) requests and still, there was no answer, over five (5) weeks. Another one, three (3) weeks, another one two (2) weeks, and no answer. So, there is a lot to this. This Resolution and this experience is my experience that I have as a Councilmember mostly working in that room. It is very difficult, but I felt I had no options rather than...my only other option was to look the other way and act like it was not happening and I refuse to do that. So, thank you. Thank you, Chair. Chair Furfaro: Other members want to speak? JoAnn, you go ahead. Ms. Yukimura: Al, I think you should thank Gary and Mel. You would not ever have heard all of these wonderful things about you without this Resolution. I think that being said, it has been very difficult and awkward for all of us to deal with this issue. I will not be voting for this Resolution because I do not believe it is a timely matter, but there is this issue of accountability and I think as difficult as it is, it is good to have a discussion. Al Castillo has taken on a tough job, which subjects him to a public scrutiny that most attorneys are not normally subjected to unless they are appointed Judges. He has to serve two (2) bosses, which is an impossible job, virtually. We on the Council have taken on a tough job too, which sometimes requires us to do difficult tasks in the light of public scrutiny. This job of evaluation is usually done in private in the private sector, but when there is an appointed official subject to confirmation, it is part of our job to do this process publicly and it is not easy. I like and respect County Attorney Al Castillo and as Mr. Mickens and others have said, this is nothing personal. I do not see any flaws at all in character or integrity. I know that there is a very sincere intention to do a good job and to want the best for this County. For me, as someone who has been a manger and who is an attorney, this issue of leadership at a high level involves judgment a lot. I have to say that for me, it was poor judgment in deciding to...for Al to decide to support Justin Kollar publicly because it disabled him from handling cases related to Shaylene Iseri-Carvalho and made it difficult to perform his job as a County Attorney. His office's oversight of Special Counsel in the Tim Bynum case was very unsatisfactory, leading to huge unnecessary costs to the County. His advice to the Council to allow County Attorney's opinion on Bill No. 2491 was shocking to me. So, for me, it is a matter of judgment, how a high level leader exercises judgment. It is not an easy thing to do. I know how hard it is, but it is required of leadership. So, those are the places where I feel, and I have talked to Al about this. I am hoping that this experience, as difficult, uncomfortable, and awkward as it has been, has maybe been helpful to all of us to think about leadership and how each of us exercises our leadership in the public trust. Chair Furfaro: Mr. Bynum. Mr. Bynum: I have been a Councilmember for eight (8) years, worked at Leadership Kaua`i for a couple years before that, and I worked for Mayor Baptiste before that. I have been through quite a few County Attorneys, some better than others, but we live in a small town. We have a small town government and we have a small County Attorney's Office, but we are buffeted by huge legal issues, giant corporations doing business here, hotels, and everybody and their brother wants to invest here. It is a tough job. It is a really tough job. We have been through some really good ones. It has been my practice, since I have COUNCIL MEETING 80 MAY 28, 2014 been a Councilmember, to meet routinely with the key positions in the Administration. I meet regularly with Al Castillo on a regular schedule. I try to do that with the Mayor, the Managing Director, and the Department Heads that I have Committee responsibilities over. A lot of you out there know that. I am very interested in the day-to-day operations of the Council...of the County. I know lots of the civil servants and Department Heads and consider them to be my friends. I am very proud of the work that the County of Kaua`i does on both sides of the fence. So, I just wanted to say that to start with. I agree with almost every word the Mayor said here today. Thank you for coming up, but as has been said, that is a perspective from the Administration. So, I will tell you right now, I have had some real issues with some of the opinions and decisions that Al Castillo has made and his office, but also Matt Pyun and Lani Nakazawa before then. I often disagree. You say me engage in some spirited debate today with Mona Clark and I appreciate that we are doing that more in the public form. I am not shy about when I disagree, but something here is happening deeper than that here. So, I am going to break and say I have lived on Kauai since 1990 and I think in the first month, I met Al Castillo. I came here to do child abuse treatment and start up programs for child abuse, sexual assault, and offenders treatment, heavy things that works with County Attorneys and all kinds of...at the time, Al Castillo was the First Deputy Prosecuting Attorney with Ryan Jimenez. I was the new haole guy that came here with this credentials to do these child abuse things to start them up here on Kaua`i and I had to engage with all of these people right away. It is like boy, there were problems with the law, there were problems with the way. The things were delivered here, and that is why I was told I was hired to help the community work on those thing. Hey, I am brand new, I just got here. The context I met Al and Ryan, and when I tried to humbly go to them and suggest that maybe the community needed to move in a certain direction, they were totally responsive and made changes that I am proud of and that they are proud of till this day. So, I had a really good experience right off the bat with Al and then I did not have much contact with him for other than we, I think, had mutual self-respect, but I know him to have been one of the finest private attorneys. If I was in trouble with law, he was on the short list of where I wanted to go and a prestigious person that works in the community. We struggle to get solid people on these key positions like County Engineer, like Managing Director, and like County Attorney. It is a particularly difficult place. Anyway, I am going to run out of time if I do not move fast. When I heard Al was going to be our new County Attorney, and believe me, the Mayor vetted lots of people, and he reached out to all of us. What about this person? What about this person? Some of the people that were considered, I was like, oh, I do not know, right? When I heard Al was the person, I am like, oh, that is really interesting. He would agree to leave his lucrative private practice and come and do this? Who wants this job, as Mr. Shiraishi said. So, the first time I met with him, he was excited and he had a vision. His vision was I want to create a team of kama`aina lawyers, kama`aina whether they moved here or whether they were born and raised here, young people. I want to nurture them into public service. I will tell you, under Matt Pyun who was a former Judge, I liked him. I got along with him good. He brought in a bunch of attorneys from O`ahu who served us, some good and some bad, and left. Al said, "Hey, I want new people I bring I want to nurture them into aloha what happens here on Kaua`i, and keep them on board." Those attorneys that are kama`aina here and went to other schools, let us bring them home. Let us do this. I met Ian Jung, Michael Dahilig, Justin Kollar, Jennifer Winn, and Mauna Kea Trask because of those things. Some of them I have known COUNCIL MEETING 81 MAY 28, 2014 before. Jennifer came from the previous Administration. I worked with all of these people over the last what, fifteen (15) years or something or... Chair Furfaro: Is that Mr. Bynum's time? Mr. Bynum: How long? Chair Furfaro: Is that Mr. Bynum's time? You have another minute. Mr. Bynum: Five (5) minutes. So, I have ten (10) right? Chair Furfaro: No, not in these discussion. You have five (5). Mr. Bynum: I clarified this a long time ago that I needed ten (10) minutes today and I have not asked any questions, and our Council Rules... Chair Furfaro: You asked... Mr. Bynum: ...say Councilmembers can speak no more than twice up to five (5) minutes. So, I am not done with what I wanted to say, but... Chair Furfaro: Well, look, so you are not done... Mr. Bynum: I will defer... Chair Furfaro: Excuse me. You are not done, I am going to give you some more time, okay, but I do want to get this clarified. This has come up before and I interpreted the Rule to say it was the introducer of the Bill that got the ten (10) minutes, but please, go right ahead. Let us stay on track. Mr. Bynum: I will try to get through it. Chair Furfaro: It is my decision. Mr. Bynum: I applaud that vision. I think it has been a great success, and I applaud the people I have met. I did not get to mention some of the newer attorneys because he is continuing that vision and bringing in and keeping senior people and advisors to come in. I am not unhappy with the service I have gotten. I am unhappy with some of your decisions and you know what they are because it is all on the public record, but, politics, I do not believe are being played at the County Attorney's Office, but I think politics are being played and I think the County Attorney has to respond to those politics. He is such an easy person to shoot the messenger. I want to talk about what happens in this room. I heard a lot of talk over the last few months about releasing the minutes from these meetings. I will vote to release any minutes that the County Attorney tells me are appropriately legal to release because I have been an advocate of that all along and it would be great for people to see because I am very conscious of every word I say in there and I know our attorneys are too. If it is appropriate and you folks all want to release these things, fine. I do not support this initiative. I never did. I did not know, but this COUNCIL MEETING 82 MAY 28, 2014 is...let us be honest and call this what it is. This is power pressure politics, okay? It has gotten played a lot since I have been in the County of Kaua`i and I think everybody around here knows it is not a thing I choose to do for any reason, but it is within bounds and it is okay. Al stood up here and said he was being pressured to do things, to make choices, and make commitments, right, and he said, "No, I will not do that." His friends came and defended him today. I considered him one of my friends, but I am happy with how he has served. I have one (1) more thing to say about this Special Counsel thing. The County Attorney responds to lawsuits, okay? He does not control whether the County gets sued or not, and the County Council makes most of these decisions. I have heard all of this rederick about Al settles too many suits. Al never settled one (1) suit. This body settles suits. He only makes recommendations and the cost of these suits, we know what this is. This is on the public record. For many years, senior powerful people and senior managers get personnel issues that...and then they respond inappropriately. Over and over again this happens. There is a dozen past examples I could cite and there is new examples coming up where a relatively minor personnel thing that happens that could have been handled, but the manager blows it, blows it, and blows it, and we end up having something small that turns into something big. The County Attorney has no control over that other than to recommend to us how to avoid it in the future and every attorney has done that. This billing issue and getting response. I could give you a stack of memorandums that have be responded to timely because some positions in the County are so big that they have this much to do and only this much is going to get done, and we are constantly triaging. So, it is easy to find problems in the County. It is more difficult to find solutions. I think that is what we are committed to. That is why these budgets were cut as was pointed out not by us, but by the Mayor, because we have been narrowing down on all of these things. They wanted more litigators. Eight (8) attorneys do all of this job. If they had ten (10), we would save money. Mauna Kea and some of the things you mentioned, Mayor, I can guarantee you if we hired Special Counsel for that 106 process, which hardly anyone in the room knows what it means or for the Sheehan matters that we did mostly in-house, mostly. We saved right there enough to hire two (2) or three (3) attorneys more to do more in-house, but the Council did not choose top support that. So, I think that is what happened in the last budget. I may be wrong about that. Maybe you pulled it out of your supplemental or something, but anyway, that is what I wanted to say. It is like I...this is inappropriate use of politics, in my opinion, and we do not have any power, right? The Mayor appointed and that position remains, but we have...we get to chime in, those of who are around, if any of us are. We get to chime in. That is what the Charter allows. So, anyway, thank you. Chair Furfaro: Vice Chair. Mr. Chock: Thank you, Chair. Political power play or not, I want to first thank my colleagues for the opportunity to have this discussion and the reason why is this is where we have our discussion and feedback is some important, having difficult conversations is so important, and they have to happen. So, I want to thank Al for reaching out, coming and meeting with me. Having the discussion is the first step. I do not think it is fair that we put blame anywhere, whether we should be coming over there and asking for a meeting or vice versa. As I listened to the testimony that I heard today, I realized that this discussion is probably a broader reaching in terms of the culture that we are suffering from between this side and that side, which I do not want to get into, but I want to say that that needs to end. That needs to stop, that we deserve better and we can. Not COUNCIL MEETING 83 MAY 28, 2014 only does it need to stop, but we need to get together on things better. We need to not just talk about it like we are going to do it, but we need to do it. We need to act on it. So, it is hard for me to listen also and hear this constantly. We talk about the "yes man," but to hear testimony constantly that is not is objective as it can be, I want to have discussions here where honestly is forthright so that we can become better. Honest discussions about continuous improvement as we can all improve. So, those are the things that I am looking forward to my continued work here, and I reach out to everyone, all Department Heads, in getting that done. I think what I heard is like a baby crying that does not get what they want. They cry louder and that is what we have experienced here, is not being paid attention to and so here comes the louder message that we are listening to. However, I think approach is certainly something that we certainly need to take into consideration and I do not believe that we have to fight. That is just my belief. I do not think we have to fight on this incessantly. I think that we need to focus on the things that are most important and the things that we can agree upon and build upon those things. So, I know it is broad thinking that I am putting out here, but I think that is really the message that I would like to advocate for. One (1) thing that is so important to me is integrity. If my peers here or anyone from the community started to question me and my integrity and the things that I do, believe me, I would not get sleep and I would not sleep until I addressed those issues. I think that is important for all of us who are public servants to take into consideration because if there are people who are questioning you, then go out and ask, and obviously, there are questions here that have not been answered. So, I want to just say that I encourage my colleagues who have had these years of experiences to act on how they want to and how they feel necessary. I want to have respectful, good conversations about where we are going. I find it difficult that we are not having Al talk about it. We have heard from everyone else, both sides, but not Al. I want face-to-face conversations about these things, but it would be at this time, for me to act any differently for my personal leadership values that would go against acting on this Resolution right now. That is because my model is en `ihi, is enable and enrich others, empower and enrich others. I work with kids and the trouble ones, I do not just kick them out. I might give them pa i later on, but I work with them and we have small steps to improvement. I want to acknowledge that we have seen, in the last two (2) months, some small steps moving forward. Yes, they have been because of us asking for us to look at different forms and process. Regardless of where it comes from, the fact is we can get better and I want to advocate us to getting better. So, at this time, I cannot support this Resolution, but I look forward to continued communication and improvement. Thank you. Chair Furfaro: Thank you. JoAnn, you always seem to want to speak just before it is my turn again. So, why would I think anything is going to change? You have the floor, but please keep it short because I have let everyone exhaust their time. Please. Ms. Yukimura: Thank you, Chair. I want to speak because I forgot to say something, and that is, I do want to acknowledge the stellar staff. That is one thing that Al Castillo can take credit for, pulling together this really fine team of Deputy Attorneys and staff people. I did not realize until I heard Councilmember Bynum speak, about that it had started as his vision at the beginning of his term as County Attorney, but to see that it has unfolded in this way is really a credit to Al and I do want to acknowledge that. Chair Furfaro: Okay. COUNCIL MEETING 84 MAY 28, 2014 Ms. Yukimura: I do not want anybody to think that our comments here are a reflection on the team itself. Chair Furfaro: Okay, Mr. Hooser, I will give you one (1) more minute. Mr. Hooser: Yes, just very briefly. I do not normally like to react to comments from a colleague, my colleagues, but I do object to the characterization of the submission of this Resolution as a political power play. Chair Furfaro: I did not say that. Mr. Hooser: I know that. Mr. Bynum: I did. Chair Furfaro: Oh. Mr. Hooser: I am directing my remarks to the Chair rather than... Chair Furfaro: I thought he was directing it to me... Mr. Hooser: No. Chair Furfaro: ...which he is supposed to. I am sorry. Mr. Hooser: Yes. Anybody who really looks at this closely, I think, from a political sense would see there is no political upside to this Resolution. I speak for myself and I know in my heart Councilmember Rapozo feels the same way. This was submitted because I felt it was in the right...right thing to do for the people of Kaua`i as a Councilmember looking for the best product, service, and results that I could get for the people of Kauai. It had nothing to do with politics or a power play. Again, the political upside is non-existent. Thank you, Chair. Chair Furfaro: Okay. Thank you. Go ahead, Mr. Rapozo. Mr. Rapozo: Thank you. I am glad Mr. Hooser brought that up because I was going to bring it up, that I thought that was not the right term. I do not know if that is what Mr. Bynum meant, but I think that was not a really team type of comment. "Power politics," I am not sure where that comes from. I do not know what benefit I get. I think...I guess I do not look at the election calendar as my calendar. I do not. I got cautioned by a couple of phone calls in the last two (2) days from very prominent members in the community that I should withdraw my name from the Resolution, that I should not be submitting this because it is an election year. If anything, this hurts me, but what do we do? Do we wait and just...so, I guess, that power politics thing, I am not sure. I was going to ask Mr. Bynum to explain himself, but I am not because I do not think that we need to waste more time. When things like that are said, I just kind of let it go, but it bothered me. Nonetheless, I can count and we did not...because it is not legal, we do not count votes on a Resolution. So, we do not know where people will stand. We just do not. When we do a Resolution or a Bill, we have, typically have the discussion if there is a co-introducer with one (1) more person and we let it go where COUNCIL MEETING 85 MAY 28, 2014 it goes. Again, I am concerned that some of the comments reflected on this table today was not comments that was reflected in other meetings. So, that kind of concerns me, but we live with that. This Resolution will not pass. This Resolution had no bearing and no effect. It was simply a, how did Mr. Chock called it? A cry for help, and I hope the cries are heard. I hope the cries are heard loud and clear. This was not an easy Resolution to do, but I think the public needs to know that there are some issues and those issues need to be resolved. I do not know what the relationship with myself and Al will be after this day. I hope it can resume as a professional relationship. Hopefully, a friendly relationship. I do not expect that, but I just want everyone to know that this is definitely not a personal attack or a political power play. This is simply a cry for help to the Mayor and to the County Attorney's Office that please, treat us as you do the Administration's Departments because we are a client. Thank you. Chair Furfaro: Mr. Bynum, I have given you two (2) times to speak. Mr. Bynum: I think once extended. Chair Furfaro: I extended the time, but go right ahead. I want everybody to remember, we still have a budget to approve. Go ahead, Mr. Bynum. Mr. Bynum: Yes, and I get ten (10) minutes for that too, Chair. Chair Furfaro: They are going to read the Rules at the recess, okay? We will read the Rules at recess. You have the floor. Mr. Bynum: I appreciate the response from my colleagues for what I said. I think that is all healthy so I will clarify it. This happens. I said I think it is within bounds. It is just not something ethical bound. I am not saying anybody did anything wrong, but half the people in this room know exactly what I am talking about. It is like when you kind of say, "I need a commitment from you for some future act or to do something now or I am going to put this thing on the agenda that is going to cause hoo hoo. If you agree to these things, then it will not happen." That is power politics to me, and I believe that is what occurred here. Mr. Rapozo: That is not true. Mr. Bynum: I believe that is what occurred here. Mr. Rapozo: That is not true. Mr. Bynum: I called Councilmember Yukimura up on similar things recently. (Mr. Rapozo was noted as not present.) Mr. Bynum: It is just...my kumu tells me, "It is true?' Yes. "Does it need to be said?' Yes. "Then go ahead and say it." So, I thought I would just say this is power politics. I do not want to play. You folks choose to respond, I will clarify it, but no harm, no foul. I like the kind of thing that is happening on this Council. This is democracy in action. Thank you, Chair. COUNCIL MEETING 86 MAY 28, 2014 Chair Furfaro: Okay, I am going to speak now, and I would like you to set the timer for me. First of all, I would like to think that we are at a point that we can talk about encouraging people to do the right thing, that we have influence on the outcomes, and use that kind of terminology far above what people are referring to here as power. (Mr. Rapozo was noted as present.) Chair Furfaro: If you want a desired outcome, you use influence and you talk in terms of encouraging people to do the right thing of the right reason. I will not be supporting this Resolution. I want to take a little page out of what I heard Mr. Kagawa speak about. I had a coach too, when I played football. I played football for Larry Ginoza at Waianae. I was an outside linebacker. I played behind Levi Stanley who went onto be a defensive end for the 49ers and John Moniz who is with the big construction firm. Let me tell you, very, very seldom was I able to tackle anybody because they used their influence and I think once in a while they let somebody to get through because they thought I needed the practice, but we worked as a team, as Mr. Kagawa was saying, and this is a team issue. I do not agree with everything the Mayor said today, and he knows that, but the Mayor and I, when we talk, we have a very, very meaningful dialogue. I share with him what I want to express, he shares with me what he wants to express, and we leave the room understanding each other's point of view and not trying to use a power over an outcome. There is sometimes I have dealt with the County Attorney and I have been happy with the outcomes. There is times that I have been satisfied with the outcomes. There is time when I feel, gee, I did not quite get to where I wanted to be and I think we are lagging behind, but I can tell you as the Chair, I have been full- time on this job and some of the shortcomings that come up like Mr. Hooser read from one (1) of his pieces, I also see those documents going back and forth. I said to Al, "I need to speak to the two (2) attorneys that sent that back that said, `they are not going to discuss it or they are not going to reply."' I had to politely sit the down and say, "I am the client. You have to do better than tell me you are not going to respond." So, that message has been delivered, Mr. Hooser. Hopefully, we all gain from that. I have also been sitting down with a number of our attorneys in the group, and I will tell you, I take great pride and I said that earlier, that in fact, you can talk things through with them and they can understand what you think the law is, but their job is to interpret the law and not do what I am asking them to do. You interpret the law and tell me what the law says. You do not tell me how the world spins according to Jay Furfaro. I think there is several, Steve, Mr. Jung, and Mauna Kea, they have all done exactly that. They have given me the time. It might be late, it might be for other reasons, but I am satisfied. I also have powers that I can exercise as the Chair, and I think Mr. Rapozo brought it up, and I think what Mr. Rapozo brought up we all have to share. I am allowed sixty (60) days to put or not put anything on the agenda. That is solely my decision and I said, "This is pretty serious. I would like to defer it as long as I can." I spoke separately with you, separately with you, and I looked at that as time where we could kind of talk things through, get some understanding of where we have to go forward with. I met with the Mayor, I met with Nadine, and I met with Al. I have to tell you, Al was very receptive in our one-on-one talks and that is the way it should be. COUNCIL MEETING 87 MAY 28, 2014 I think JoAnn also said leadership is really an exercise of good judgment strategic planning to get everybody to the right place for the right reason, and I agree with that, JoAnn, and I thank you for bringing that up. That is...it comes with time, exposure, and experience, but we are also bound to a lot of things at the Council that the legislature is not and so forth. I mean, we have Sunshine Rules that do not allow us to discuss things with each other expect those two (2) that paired up. We had some great discussion today with Mona on issues that we needed to get to the right place for, but one of the things I also understand, and I worked with Al separately. I will summarize this. Thank you. That was my five (5) minutes. I worked with Al outside on Habitat for Humanity when I was the President for almost seven (7) years, and it was about building houses and building families. Al was right there as a board member. I have also seen Al kind of indicate, just like Larry Ginoza, when someone is down and out, do not pile on, try and reach out and help, and help them out of the hole. I hope we have all learned from this today. We have to kokua one another, but for the members in the County Attorney's Office, I also want to remind you, we are a separate legislative body and we stand on our own merits here. On that note, I would like to call for a vote on this Resolution, and I want to thank everybody for their discussion today. Please, roll call vote. Ms. Fountain-Tanigawa: We have a motion and a second. The motion to adopt Resolution No. 2014-35 was then put, and carried by the following vote: FOR ADOPTION: Hooser, Rapozo TOTAL— 2, AGAINST ADOPTION: Bynum, Chock, Kagawa, Yukimura, Furfaro TOTAL— 5, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: The vote is... Ms. Fountain-Tanigawa: 2:5. Chair Furfaro: 2:5. Very good. As Mr. Kagawa said, we are going to take a break now and I have to tell you, Department Heads, as you have waited, we have to get to the budget. We are in a break for ten (10) minutes. There being no objections, the Council recessed at 4:01 p.m. The meeting was called back to order at 4:13 p.m., and proceeded as follows: (Mr. Bynum, Mr. Kagawa, and Ms. Yukimura were noted as not present.) Chair Furfaro: We are back from recess. Madame Clerk, I would like to get some things cleaned up before we move on to the budget items. Go ahead. Ms. Fountain-Tanigawa: Chair, for receipt, Communication on page 3, C 2014-163. Chair Furfaro: I am looking for a motion to receive. COUNCIL MEETING 88 MAY 28, 2014 Mr. Rapozo moved to receive C 2014-163 for the record, seconded by Mr. Chock. Chair Furfaro: I have a motion and a second. Any discussion? I have four (4) members here to receive. The motion to receive C 2014-163 for the record was then put, and carried by a vote of 7*:0:0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Mr. Bynum, Mr. Kagawa, and Ms. Yukimura were not present, but shall be recorded as an affirmative for the motion.) Chair Furfaro: Thank you. Ms. Fountain-Tanigawa: On page 2. Chair Furfaro: Page 2, yes. C 2014-160 Communication (05/16/2014) from Council Vice Chair Chock, transmitting for Council consideration, a Resolution encouraging the use of Alternative Dispute Resolution (ADR) methods for conflict prevention in the County of Kaua`i, to increase awareness of the various ADR processes and to encourage our County to resolve disputes in an impartial and peaceful manner: Mr. Rapozo moved to receive C 2014-160 for the record, seconded by Mr. Chock. Chair Furfaro: I have a motion and a second. Any further discussion? The motion to receive C 2014-160 for the record was then put, and carried by a vote of 7*:0:0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Mr. Bynum, Mr. Kagawa, and Ms. Yukimura were not present, but shall be recorded as an affirmative for the motion.) Chair Furfaro: Four (4) ayes. (Ms. Yukimura was noted as present.) Ms. Fountain-Tanigawa: And then on the first page, on the Consent Calendar, C 2014-134. C 2014-134 Communication (05/07/2014) from the Mayor, submitting his supplemental budget communication for Fiscal Year 2014-2015 and proposed amendments to the budget bills, pursuant to Section 19.02A of the Kaua`i County Charter. Mr. Rapozo moved to receive C 2014-134 for the record, seconded by Mr. Chock. Chair Furfaro: Discussion? The motion to receive C 2014-134 for the record was then put, and carried by a vote of 7*:0:0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Mr. Bynum and Mr. Kagawa were not present, but shall be recorded as an affirmative for the motion.) COUNCIL MEETING 89 MAY 28, 2014 Chair Furfaro: Five (5) ayes. Ms. Fountain-Tanigawa: Chair, this would take us to the budget items. Chair Furfaro: Okay. Ms. Fountain-Tanigawa: On page 7. There being no objections, Bill No. 2537, Draft 1 and Bill No. 2538, Draftl were taken out of order. BILLS FOR SECOND READING: Bill No. 2537, Draft 1 —A BILL FOR AN ORDINANCE RELATING TO THE OPERATING BUDGET AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015: Ms. Yukimura moved to adopt Bill No. 2537, Draft 1 on second and final reading, and that it be transmitted to the Mayor for his approval, seconded by Mr. Chock. Chair Furfaro: There is a motion and a second. We have discussion here? So, move to receive? Ms. Fountain-Tanigawa: This is a Bill. Chair Furfaro: This is the Bill. So, roll call? Roll call to receive the Bill. Roll call, please. Ms. Yukimura: Approve the Bill. Chair Furfaro: I am sorry. Approve the Bill. Ms. Yukimura: Mr. Chair? Chair Furfaro: We are in recess. Let us get all the members here. There being no objections, the Council recessed at 4:16 p.m. The meeting was called back to order at 4:16 p.m., and proceeded as follows: (Mr. Bynum was noted as not present.) Chair Furfaro: We are taking discussion. I mean, it is 4:00 p.m. here. Ms. Yukimura: Public testimony you mean? Chair Furfaro: Yes, discussion. Ms. Yukimura: Public testimony. Ms. Fountain-Tanigawa: This is on the Operating Budget. Ms. Yukimura: On the Operating Budget. COUNCIL MEETING 90 MAY 28, 2014 Chair Furfaro: On the Operating Budget. Ms. Yukimura: Sorry. Mr. Hooser: Okay, no discussion? Chair Furfaro: There is no discussion. Mr. Rapozo: I have a process question, Mr. Chair. Chair Furfaro: Go ahead. Mr. Rapozo: Should we not approve the tax rates before we do the budget? Ms. Fountain-Tanigawa: Yes, we can. Mr. Rapozo: I think we have to do that. I mean, the tax rates would have to pass before the budget can be passed. So, I mean, you have to do the tax rates first. Chair Furfaro: Okay. I let Jade walk us through this. Jade, if you want to take us to the tax rates, let us read that Bill, take public comment, and then call for a vote. Ms. Fountain-Tanigawa: This is on page 6. There being no objections, Resolution No. 2014-11, Draft 1 was taken out of order. RESOLUTION: Resolution No. 2014-11, Draft 1 — RESOLUTION ESTABLISHING THE REAL PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015 FOR THE COUNTY OF KAUAI: Mr. Chock moved to adopt Resolution No. 2014-11, Draft 1, seconded by Ms. Yukimura. (Mr. Bynum was noted as present.) Chair Furfaro: I have a motion and a second. We will suspend the rules for any public testimony on tax rates. There being no objections, the rules were suspended to take public testimony. There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Discussion members? Mr. Kagawa, followed by JoAnn. Mr. Kagawa: Thank you. I just want to state for the record that I will be voting no on the tax rates. The reason why I will be voting no on the tax Resolution is because Councilmember Rapozo and I had a different proposal. It actually raised more than the Mayor's proposal and what we tried to do was we tried COUNCIL MEETING 91 MAY 28, 2014 to just raise the hotel fee and the TVR, the vacation rental fee, by one dollar ($1) each and that would have raised, I believe, about six hundred thousand dollars ($600,000) more than the Mayor's budget. We felt that we wanted to do it that way because we felt that taxing two dollars ($2) increase to the hotel industry alone was putting too much of a burden and a risk on what would happen to the hotel rates. That is why we proposed that. I think it was a wonderful idea, but unfortunately, we only had two (2) votes. That is why I will be voting no to the tax Resolution today. Thank you. Chair Furfaro: JoAnn and then Mr. Hooser. Ms. Yukimura: Thank you, Chair. I will be voting for this. It was not my first choice. I had proposed a twenty cents ($0.20) increase for Residential, which are non-owner occupied homes, twenty cents ($0.20) on one thousand dollars ($1,000) to offset the Open Space contribution that was going to be taken from the Open Space Fund, and I was...I had another smaller, ten cents ($0.10) in every category, but because there were other proposals made and because this is a compromise and we have to come up with four (4) votes, I am voting for this particular package. It does include an increase in Real Property Tax rate for Hotel and Vacation Rentals, and I have to say I know that we got some protests from the resorts, but this was necessary to offset the cost of tourism impacts on our County. Every day, an average of eighteen thousand five hundred (18,500) visitors use County roads, parks, emergency medical services, police, and rescue services. In terms of revenues to offset these costs, the County gets nothing except Real Property Taxes and a portion of the Transient Accommodation Taxes, also known as TAT. We do not get excise or sales taxes, income taxes, or rental car fees taxes. All we get...all of that goes to the State. When the legislature chose not to give us what we feel is our fair share of the TAT to offset tourism impacts, we really did not have a choice. I appreciate that the visitor industry has lobbied to help the Counties get the TAT, but the bottom line is that we did not succeed in getting those moneys and we have bills to be paid. I also want to point out that the Council reduced the Mayor's proposed rate increase for Hotels & Resort and instead, imposed rate increases on other classifications of property, though they were fairly small. We really tried to be balanced and fair, and this required that every sector did its share. Chair Furfaro: Okay. Other comments? Mr. Hooser. Mr. Hooser: Chair, I just have a kind of a process question. So, if we do not pass the tax rates, we cannot pass the budget. So, if we vote no on the tax rates, we do not have a budget and then we would take the Mayor's budget? Chair Furfaro: The Mayor's budget of March. Mr. Hooser: Of March, and the Mayor's budget takes almost five million dollars ($5,000,000) out of the retirement...retirees health plan and takes away the public access contribution of five hundred eighteen thousand dollars ($518,000), and does not include any of the cuts that we already did. So, is that correct? Chair Furfaro: That is correct. Mr. Hooser: So, a no vote basically is a yes vote for the Mayor's first budget? Chair Furfaro: First submittal. COUNCIL MEETING 92 MAY 28, 2014 Mr. Hooser: Okay. Thank you. Chair Furfaro: I do want to make sure in some clarity of that, you folks are aware that after we voted on the tax rates that we have, I shared with you my E-mails back to the Hotel Association and the various General Managers (GMs) on the island that explained the position. The hotel rate actually went down fifteen cents ($0.15) from what the Mayor proposed. It also did no increases on primary households and small increases in some of the other commercial activities. I do not know if you have been following the news, but Honolulu is at twelve dollars and twenty-five cents ($12.25) and they are proposing another fifty cents ($0.50) increase on the Hotel classifications. Mr. Hooser: And one (1) other thing. In looking at the Mayor's submission in March, it leaves a very low Unassigned Balance of just a little over one million dollars ($1,000,000) compared to almost five million dollars ($5,000,000) in the budget that was on the table. My concern with going with the Mayor's, besides taking so much from the health plan and besides taking the park public access money, leaving such a low balance further puts us at risk for our bond rating. I met with the public workers recently and they were concerned about if there was a natural disaster or a financial turndown, there were no funds available to avoid furloughs, layoffs, and further reduction of services. So, I would be very concerned about not passing our budget. I just want to clarify that a vote no on this is a vote in favor of the March submittal. Chair Furfaro: It is a no vote on this makes the next two (2) pieces, as Mr. Rapozo pointed out, undoable. Mr. Hooser: Right. Chair Furfaro: And it reverts back to the Mayor's March budget. This budget, also with these rates, funds ninety percent (90%) of Other Post-Employment Benefits (OPEB) and also puts three million five hundred thousand dollars ($3,500,000) or three million eight hundred thousand dollars ($3,800,000) into a reserve account. Mr. Hooser: Right. Thank you. Thank you, Chair. Chair Furfaro: Mr. Bynum. Mr. Bynum: I also have a process question, in just that the next two (2) Bills deal with the budget. I had prepared about ten (10) minutes, I think, of presentation. I would like your...to do that all at once on the next Bill if that is okay with you. Chair Furfaro: Okay, that is for the next Bill. Mr. Bynum: I mean, I will not do the time now. Chair Furfaro: Yes, for the next Bill, right? Mr. Bynum: Yes, but I would like ten (10) minutes. Chair Furfaro: I understood your request. Yes. COUNCIL MEETING 93 MAY 28, 2014 Mr. Bynum: Thank you. Chair Furfaro: So, we are still on the rates, as Mr. Rapozo pointed out. Mr. Rapozo, I give you the floor. Mr. Rapozo: Thank you, but I think to answer Mr. Hooser's question, I mean, if we...if the property tax rates does not pass, we have an opportunity to amend the...we would have to amend the Bill today. We would have to redo the budget Bills today, which could take a lot of time. So, a vote no does not mean we go back to the March budget, plus the March budget...from the March budget to the supplemental budget included items that Finance, the Finance Department and the Administration found out subsequent to the March submittal. The actuarial, the changes in OPEB. So, obviously, some of those things would carryover. If the tax rates were not passed, the number would be different anyway because the March submittal does not include the variations or the changes that were determined after the submittal. I hope I am making sense, but after they submitted the March Bill, they went to Honolulu, met with our actuarial companies, and we found out we overpaid too much or the estimates were too high, so we got some back. That is not included in the March submittal, but it was in the May submittal. I guess my point is just that if this does not pass, we still have an opportunity to produce a budget. If we could not come to an agreement on this body, then the March submittal would pass. So, that is the clarification. As Mr. Kagawa talked about, I am very hesitant and will not be supporting the tax rates simply because the tax burden was spread across. Many of the classifications, I do believe our proposal was reducing the Hotel Tax rate from what the Mayor submitted, but also including an increase in the Vacation Rental. I think Councilmember Yukimura, you talked about the tourist...the impacts that the tourists bring up or bring to this island in roads and so forth, and that is why I think the proposal that myself and Mr. Kagawa had was directly related to that. So, that our taxpayers would not be burdened with any additional tax rates and that in fact, we would bring it back to the visitors that come here. I think two dollars ($2) per one thousand (1,000) for the Hotel & Resort was too high, but to make this budget balance we had to come up with something and I thought ours was fair, especially, to our local taxpayers that live here. Obviously, that did not pass. So, I am having a rough time charging our taxpayers anymore in all of the classifications. So, I will not be supporting the tax rates. Thank you. Chair Furfaro: So, any further discussion? If not, let us go and take a vote here on the tax rates. We have a motion and a second as proposed. We need four (4) votes for it to pass. If it does not pass, we have a lot of work cut out for us tonight. So, roll call, please. The motion to adopt Resolution No. 2014-11, Draft 1 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Yukimura, Furfaro TOTAL— 5, AGAINST ADOPTION: Kagawa, Rapozo TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL — 2, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: 5:2, passes. So, let us go to the next piece. Ms. Fountain-Tanigawa: The next item would be on page 7, Bills for Second Reading. COUNCIL MEETING 94 MAY 28, 2014 BILLS FOR SECOND READING: Bill No. 2537, Draft 1 —A BILL FOR AN ORDINANCE RELATING TO THE OPERATING BUDGET AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015 Chair Furfaro: I have a motion and a second. Before we go any further, I am going to give Mr. Bynum ten (10) minutes for your presentation. This is where you wanted to make it? Mr. Bynum: Whenever you... Chair Furfaro: Right now. So, we are going to move right along. So, I am going to reposition myself. Is everything overhead or is it a handout or... Mr. Bynum: It is mostly overhead and I did not prepare a handout because you probably heard most of this before. I am going to go through this as quickly as I can, and somebody please give me like a six (6) or seven (7) minute warning... Chair Furfaro: Give him a two (2) minute warning. Set it for ten (10) minutes with a two (2) minute warning. Mr. Bynum: Yes, please. You have seen these charts before. This is our Real Property Tax revenue through 2013. We know that it went up pretty dramatically during the economic upturn and like a lot of things...you know, the economic down turn kind of started in 2008. We all agree that was a watershed year, but County revenues tend to lag a couple. So, the revenues kept going up and then they started falling. Where did that money go because we know, we have talked about it. We kept...when the economic downturn came, and I will get to that, the Mayor gave us good spending proposals. We actually lowered spending year over year, but we still have to fund a government and our revenues were falling, and we got into an upside down situation as you see. This is through 2011, changes of taxes between 2008 and 2011. All of that revenue we were losing, where was it going? Five million dollars ($5,000,000) to single family resident less homeowners. Those are vacation rentals, second homes, and rentals that market. Apartments, less homeowners, those are mostly vacation rental accommodations. Four million dollars ($4,000,000) less taxes in three (3) years. Agriculture, six million dollars ($6,000,000) less. Commercial less than homeowners, one million dollars ($1,000,000) less, two million dollars ($2,000,000) less. What happened to homeowners? Put all of the homeowners in those three (3) years when everybody else's taxes were going down, they went up two million one hundred eighty-six thousand dollars ($2,186,000). Now, you are right. Those people were protected on the way up and we took a lot of money from business, but this is about how we responded to the downturn. There were a lot of tax proposals over the years. 2004 a task force not passed through a Charter amendment, we pinned it at today, got turned over by the courts. Two percent (2%) cap Furfaro...was Furfaro's. It passed in 2004 with the intention of protecting homeowners from big swings. It was a wonderful intention and something actually Mr. Furfaro is very proud of. The May 10th, but by May 10th we look at these things, we were losing revenue. Hotels...I did not...oh, where did it go, the second slide? Oh, this. By 2012, hotels and resorts...where is hotel/resort? (Mr. Rapozo was noted as not present.) COUNCIL MEETING 95 MAY 28, 2014 Mr. Bynum: Five million dollars ($5,000,000) less in taxes compared...over a four (4) year period, we collected less than if we would have kept their taxes at the same rate or the same amount. You have to careful with terms in taxes. Homeowners though, did not enjoy any of this at one million four hundred thousand dollars ($1,400,000) less. I have been preaching about this for years. In 2010, I said let us increase the Hotel tax rate sixty cents ($0.60) not so your taxes will go up because they would not because the things were falling. It would have maintained the revenue flow from then. It would have been we just would have had fewer taxes. Unfortunately, that failed. 2011, I said let us increase the homeowners exemption and that did not. It failed. December 11th, the Administration, under the guidance of our new Finance Director, I believe, and I was the Finance Chair. We passed and restructured the government and I supported, for largely, the Mayor's proposal as did a majority of the Council and we passed them. Following up, in January 2012 I tried again about increasing home exemptions, but it was not successful. However, in May...I think it was May. Yes, at budget, the Council did approve a proposal that I put to reduce the Homestead rates to three dollars and five cents ($3.05) and that resulted in about one million dollars ($1,000,000) of tax relief for local taxpayers. Not the five million dollars ($5,000,000) I had hoped for, but one million dollars ($1,000,000) and I appreciate the Council doing that. There were other Bills that we were...that the Administration proposed that have passed including...where is it? Eventually, the Administration proposed a reduction, I mean, a big increase in the homeowners exemption and it passed. So, 2008 was a key year. (Mr. Kagawa was noted as not present.) Mr. Bynum: We knew that this was one of the key tax proposals and at that time, it was like, let us make the homeowners exemption three hundred thousand dollars ($300,000), three hundred twenty-five thousand dollars ($325,000), and three hundred fifty thousand dollars ($350,000), very large homeowners exemptions. We eventually passed one hundred sixty thousand dollars ($160,000), one hundred eighty thousand dollars ($180,000), and one hundred twenty thousand dollars ($120,000) that goes into effect this year. This is the watershed year. In 2008, this was a proposal from the Mayor at the time, said, let us...and the hotel industry accepted this by the way. I was here on Council. This almost passed... Ms. Fountain-Tanigawa: Five (5) minutes. Mr. Bynum: And the proposal was to reduce homeowners taxes by thirty-five percent (35%) because we all agreed that homeowners were paying too much of the burden. Hotels were going to increase...where is it? Hotels & Resorts is going to go up twenty-five percent (25%). This is in 2008, and they agreed because they had not paid their fair share, in my opinion. They agreed, but what happened since 2008? Did they pay more? No, they paid a lot less and they continued until now to pay less. We were told for years that this is what the cap did and I started saying the cap has outlived its usefulness and eventually Furfaro agreed, we all agreed. In like about 2009, I said, "Because look, it came way down for homeowners, but now it is coming back up," but then when we got the raw data and correctly analyzed it, this is what really happened to all homeowners, okay? Quite a difference. The cap did not have as big a benefit as we were told of, this is what we made the policy decisions on. I am sorry, but this is what really happened. So, eventually, this is the year we eliminated the cap. So, there is a lot of changes. I am going to go through these to get to...this is this year. Now, because we are eliminating caps, please pay attention to COUNCIL MEETING 96 MAY 28, 2014 this. See all of the red dots? That is what people paid last year, and this is a random sample of median home values on Kaua`i in the Homestead class. That blue line is the Mayor's proposal to keep the three dollars and five cents ($3.05) tax rate, which we did. So, everybody that is above this blue line, these guys, their taxes are coming down and everybody here, especially like this guy, this guy, and this guy, their taxes are going up, right, because we made them fair this year. This was the unintended consequence that Mr. Furfaro or none of us expected and when we realized it was there, we eventually corrected it this year. So, how is that germane? I have been arguing let us lower taxes for the Homestead class for the people that live and work here because it is good public policy, but it also has this pragmatic value. This year...you know, I have been making that argument. First I had one (1) vote, then I had two (2), and last year I have three (3). This year, Councilmember Hooser and I proposed two dollars and fifty-five cents ($2.55) tax rate for the Homestead taxes. This is a spreadsheet that was developed that shows where you can plug in the rates and get the outcome. We suggested...so, I am sorry. This was Councilmember...so, you see how that blue line moves down, right, because that is the new market taxes. So, what does that mean? It means that the people up here that are going to pay increases, the increases would have been smaller, modest, and there would have been fewer of them. Unfortunately, for the fourth or fifth year in a row, a proposal to significantly change the burden of taxes paid by the Homestead class was not accepted by majority of the Council. I am sorry that that happened because our out...now, here is where we ended up though. In terms of Homestead classes, it is the same as the Mayor's proposal, but the Council made other adjustments to the Mayor's proposal. Now, I have shown this chart many times. It is a lot of numbers, but these are numbers form the Comprehensive Annual Financial Report (CAFR), from our certified audit, and it shows...now, it shows a lot of interesting things. I do not have time to tell you, but one (1) of the things I have to point out is this total expenditures and things. Look at this. Look at the...the amount of money the community or that our Council, that we spent as a government, went up and then when the Mayor became Mayor, oh, look, it actually went down and stayed very flat for a few years. That is why I say I appreciate your spending proposals. We have been wheeling the fat out of the budget the few years. That is why this year was so difficult, but we had a disagreement about should we touch OPEB and borrow money there or should we preserve the Fund Balance? It was an honest disagreement and the Council chose, I think wisely, a compromise in the long run. The Homestead rates did not change. I am very sad about that, but the compromise means because if we look at this, if we carried that chart out, the Reserve Fund, under the Mayor's proposal, if we would have adopted it and because his view and it is just a change, a different opinion. It was like, do not touch OPEB... Ms. Fountain-Tanigawa: Ten (10) minutes. Mr. Bynum: ...use our Fund Balances. I am almost done. (Mr. Kagawa and Mr. Rapozo were noted as present.) Mr. Bynum: But what we did was preserve the Fund Balance by, all of us collectively, preserved the Fund Balance by increasing revenues over all above what the Mayor proposed. The OPEB thing, we can fix later. This was a good, reasonable compromise and it leaves our Reserve Fund at a reasonable six point eight eight percent (6.88%), and that is that emergency Rainy Day Fund. I said many times, that if you have a large net change in Fund Balance either up or down, somebody is not managing government well. I do not think anybody would disagree COUNCIL MEETING 97 MAY 28, 2014 with that anywhere in the Country. This is our...since 1997, most years there is very little change, net change, in the Fund Balance, but then we went through these years where ten million dollars ($10,000,000), ten million dollars ($10,000,000) even after the down turn. In 2010, almost fifteen million dollars ($15,000,000) more money we took in than we spent. That is what made our balance grow really big and then look what happens almost immediately next, right? Losing ten million dollars ($10,000,000) a year. That is what we have been doing. These big changes. Hotels are saying, "Oh, man, you hit us thirty percent (30%) all at once." What if we would have incrementally did it over the last few years? That is ten (10) minutes? Chair Furfaro: Twelve (12). Mr. Bynum: Twelve (12)? Okay. Yes, done. Chair Furfaro: Just one (1) really quick thing. I would like to go from 2008 in what we call the Homestead category and I want you to go back and add all the building permits that were approved in that five (5) year period because I want to see how much of the growth is based on new assessed construction as well. That is a fair question. I will send it over in writing. There being no objections, the rules were suspended. STEVEN A. HUNT, Director of Finance: Specifically to the Homestead class? Chair Furfaro: To the Homestead class. Thank you. Okay, we have to take public comment here if I can. Is there anyone in the audience that wants to give public comment on the second portion of the three (3) part budget Bill? There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Discussion members? If not, oh, JoAnn, go ahead. Ms. Yukimura: Yes. My comments apply to both the Operating and the Capital budgets. This has been the most difficult budgets of many budgets that I have sat through. We are treading in dangerous waters and need to sharpen our pencil and review our strategies carefully if we want not only to survive, but to thrive as a community. Without the cost cutting and revenue measures that we passed during this budget, we would be moving, in my opinion, toward Detroit's fate where no one wins and everyone loses and none of us wanted that scenario. That elephant in the room is the pay increases, in particular for the public safety. These are the units that were paid raises throughout the period of furloughs and pay cuts for the other units. Including the Standard of Conduct, the recent pay raises for Police resulted in levels of pay ranging from sixty thousand dollars ($60,000) for an entry level officer to one hundred six thousand dollars ($106,000) for a Captain, with County costs respectively of ninety-five thousand dollars ($95,000) per officer and one hundred sixty-two thousand dollars ($162,000) per Captain. This is for the first year of pay raises. In the fourth year, a police officer will get approximately seventy-three thousand dollars ($73,000) and a Captain, one hundred twenty-five thousand dollars ($125,000) with County costs of one hundred fourteen thousand dollars ($114,000) and one hundred ninety-two thousand dollars ($192,000), respectively. When translated into pension, sick leave, and overtime, this is a huge bill. The implications of which I COUNCIL MEETING 98 MAY 28, 2014 do not even, I do not believe even our officers understood. There is no question that public safety is hugely important and that salaries need to be sufficient to attract and retain well-qualified personnel. However, there must be some balance with respect to other employees in the State and County system who, in my mind, are just as important and deserve appropriate levels of pay. This must also be balanced against taxpayers and their ability to pay and against meeting the needs of our children and grandchildren into the future for housing, roads, bus transportation, parks, economic development, and toward keeping Kauai a beautiful and prosperous place. I am not advocating a rollback in salaries. It is done. The Council and the legislature approved these increases, but I am calling attention to the system that created these raises, which are moving the County toward a terrible financial dilemma. The system really needs to be looked at and improved. I want to now talk about vehicle weight taxes or some fees. None of us want to pay more fees, but vehicle weight taxes allow us to maintain our roads in good repair. The good news is they can only be used for roads. It is seems hard to pay these fees, please consider that we pay one way or the other. We ether pay the vehicle weight and fuel taxes and get our roads repaved or we pay for fixing our vehicles due to poor roads. Additionally, not doing timely repair of our roads is like putting off servicing our car. The bill at the end is much bigger. So, we pay more by not repaving and repairing our roads in a timely way. Another place where we have to do better is at the Wailua Golf Course. The General Fund, made up of Real Property Taxes and TAT primarily, is subsidizing the golf course by one million dollars ($1,000,000) a year. This is the course that is touted as one of the best municipal golf courses in the Country and among the best in the State of both private and public courses. We can do better in moving toward self-sufficiency for the golf course. I know some local golfers are concerned that their special rates will disappear. I believe we can keep the category of special rates and increase revenues, but the three dollars ($3) on the average per round cannot continue if we are to sustain our beautiful golf course into the future... Ms. Fountain-Tanigawa: Five (5) minutes. Ms. Yukimura: ...and everyone must do their part. I urge the Mayor and the Administration to find ways to do better. As to cutting costs in the budget, I want to commend everyone, all the Departments, the Mayor's Budget Team, and the Councilmembers for efforts to cut expenditures. It was not easy, but I feel almost everyone was trying hard because our survival as a County depended on it. It is a real challenge to cut that which can be cut and to not cut that which should not be cut and we went through the agony in trying to make those decisions. I think we tried really hard not to cut things that will haunt us down the road. It is true that we took some of our OPEB moneys and for the first time, are not paying in full as we have for the past several years. We are still way ahead of the other Counties and State, but I know we do not like to do what we did and we need to rectify this as soon as possible. It will get harder though because the pay increases will be compounding and increasing in the future. We did this so that we could, as Councilmember Bynum showed, increase our Reserve and that is a really important part of being prepared for emergencies. That is an important part of being a resilient community and we really had to make some hard choices. I think we are getting better at cutting. There is a growing sense of responsibility to use taxpayers money well and there is a mutual responsibility here. Taxpayers do their share to help fund the government's services that they use every day and elected officials and County workers have the COUNCIL MEETING 99 MAY 28, 2014 responsibility to use the money as a sacred trust to provide services in the most efficient and effective way. So, I want to say thank you to, most of all, our Council Staff. We are so lucky to have competent and dedicated staff. Scott Sato, Yvette Sahut, and Ashley Bunda under the leadership of our Deputy and our Clerk, Jade and Ricky, and to all of the other staff who supported the Budget Staff during this intense and time consuming time, effort. Thank you to the Administration, especially the Budget Team of Steve Hunt, Ernie Barreira, Ken Shimonishi, and Ann Wooton; and to all the Department Heads and Divisions; and to the Mayor and our Managing Director. The Mayor is the first Mayor that has sat through budget sessions, including myself in that pool. Finally, I want to thank my Council colleagues. I want to thank Tim Bynum for his expertise in Real Property Taxes and his initiatives, to Gary Hooser for his comprehensive view point of the budget, which is always looking for big places to take from or give to, to Ross Kagawa and Mel Rapozo who made valiant efforts to cut. They were not easy, and to Mason Chock for his calm insightful guidance and leadership, and especially to our Chair for his leadership. We have gotten through another budget session. It seems to get harder and harder, but we are up to the task. So, thank you. Chair Furfaro: Next speaker. Mr. Kagawa. Mr. Kagawa: Thank you, Chair. I will be brief. I first of all, want to thank our staff as Councilmember Yukimura said. Thank you very much. The second budget was tougher than last year's and the staff was so tremendous in giving me whatever I asked for and more. So, thank you folks. To the Administration, good job again. Steve, you are really doing a remarkable job under these tough times, and your staff. Mayor, I think you did a lot of cutting yourself this year and you went into public safety and whatever budgets. You did a lot in trimming the budgets and we are here. If their shortages...the good thing is that if the budget passes, we do have a surplus, we do have moneys to take care of essential necessities, but we really want to get our managers to really try and, I guess, be more accountable, as accountable as we can be, in trying to cut out things that we can cut out. I proposed about two million dollars ($2,000,000) in cuts, not because I am trying to gain votes, not because I am trying to be a micromanager, but because I believe that cutting the budget is the way that we are going to be sustainable because we somehow need to get our expenditures less than our revenues and we are striving to that point. I think with these tax increases and fee increases, we actually did achieve that, but I was looking at not increasing fees and not increasing taxes. We are still struggling. I mean, people out here are grumbling. I mean, read the newspaper articles. I talked to people out in the streets. They are not happy with this increase in taxes. I have a neighbor, quiet neighbor, hardly even says a word, and yesterday he asked me if I am running again, I told him, "Yes." He told me, "Hey, are you not worried about this large increase you folks are pushing to the hotel industry" and I said, "Of course I am worried." I mean, that is what dictates whether tourist decide come to Hawai`i or Florida or California. It is the...the prices are the important factor and how does these increases affect our hotel prices? I do not know, but I can tell you one (1) thing. I have not seen one (1) piece of testimony from anybody in the hotel industry that said our taxes is a good idea. In fact, everyone said, these increases are a bad idea in these times, but we need to generate revenue somehow. I was in favor of just a one dollar ($1) increase again to the Hotel category and a one dollar ($1) increase to the TVR category. That was my proposal because I did not have enough COUNCIL MEETING 100 MAY 28, 2014 cuts. I had two million dollars ($2,000,000) in cuts. Two million dollars ($2,000,000) in cuts does not cut it. It is not enough. So, I proposed another four million eight hundred thousand dollars ($4,800,000) with mine. It did not last and that is why today, I am not supporting this budget. It is not because I just want to oppose them. It is because they did not support my budget, my proposals, and I do not support theirs. That is the only reason why I am voting no, but I thank my colleagues. I think this is a responsible budget that leaves a Fund Balance. In my budget proposal, we would have a much smaller Reserve at the end. I just believe that yes, bond ratings are really important, but I believe that not taxing our people at this particular time is important as well, if not more important. Just levying fees, levying taxes, it is just taking money out of people's pockets. We hear our County workers saying with the increased medical benefits, that they are paying even though they have the recent pay raises, their paychecks are smaller. Everything else is getting more expensive and our employees are making less, take home pay, net pay. So, I mean, how are we going to get sustainable in the future? I think we are going to come upon some tough decisions coming up in the next few years and I just...we have tough times ahead. That is... Ms. Fountain-Tanigawa: Five (5) minutes. Mr. Kagawa: ...all the warning I have, but like the Mayor, together we are going to work together and we are going to work through it. With hard work, determination, and togetherness we can do it. That is what is going to take us to the, I guess, to the future. Thank you, Chair. Chair Furfaro: Vice Chair, go ahead. Mr. Chock: Thank you, Chair. Yes, I do not think anybody here is happy about having to look at these tax raises, but I want to thank all of those involved in reaching this decision. I think Councilmember Yukimura is right. We had to compromise in order to pay our bills and to put some in the bank there for next year because it is an uphill battle from here. For me, this budget discussion has just began. It is the beginning. We have to roll up our sleeves, we have to climb that hill now, and that will be in looking at how we are going to get to a sustainable budget. I am looking really forward towards this comprehensive budget plan because I think that we have to get moving on that. I do believe that it is a combination of decreasing spending. I do believe it is in increase in building revenues streams, but it is not going to be done through the same avenues that we have done in the past, the same mechanisms. I think that we are going to have to be innovative in our approach, think outside of the box, and just need to look towards new approach in how we do business. So, I am looking forward to that and ready to move on this decision. Thank you. Chair Furfaro: Mr. Hooser. Mr. Hooser: Yes, I will be supporting the budget. I think we have a responsibility to pass a budget with a Reserve and after examining the cuts that we could make, I think we have to move forward to do it. No one likes to raise taxes. I acknowledge Councilmember Kagawa for going after the overtime with Police and Fire and his aggressiveness on that should be recognized, I think. That was not enough and some of us are concerned about cutting services and lessening the ability of the Police, Fire, and others to do their jobs. No one recommended a balanced budget with cuts. No one. I think we need to acknowledge that. Every single budget that has been discussed or approved at this table involved tax increases and the tax increases that we are voting on today, somewhat reluctantly, I think are reasonable COUNCIL MEETING 101 MAY 28, 2014 and responsible. It still holds our hotel and tax rate below that of the City and County of Honolulu. It does not raise taxes at all on low income rentals or homestead exemptions. That was very important to me, not to tax people on fixed incomes or had no ability to repay. We do, again, have to be...face our responsibilities as Councilmembers. We cannot just say, "No" and not pass a budget. We have to pass a budget period and it is our responsibility to pass one that has sufficient reserves to take care of the County core central services in the event of something or down turn of the economy. It is our responsibility to pass a budget that is going to increase our credit rating, not continue to decrease our credit rating. I support, as much as anybody, looking for areas to cut, and again, I acknowledge Councilmember Kagawa for going after the Police and Fire in their overtime, but that was not sufficient. If you look at the other rates, they are in line or lower than most other places and we did a lot of good things with this budget. I commend the Chair for your leadership on this and I want to add my acknowledgment to the staff who worked very, very hard in providing us with the support that we need to make a good decision. So, thank you, Chair. Chair Furfaro: Thank you. Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. In 2011-2012 or Fiscal Year 2011-2012, I voted against the budget, in 2012-2013 I voted against the budget, and I know Mr. Hooser talked about being responsible in passing the budget, but the reality is if we do not pass a budget, it reverts to the March budget submittal. I think in those years, in my opinion, it would not have been a bad thing. This year, I am going to be supporting the budget simply because I think that the message has been sent. I do, I guess, I am troubled by comments about public safety and the fact that it seems like the reason why we are in this hole this year is because of public safety and that is not the case. Collective Bargaining is something that is somewhat out of our control and I remember the years where we have problems with filling positions in the Police Department. People would go work at the hotel and get a security job paying more than a police officer. They do not have to deal with what the police deal with. They had better medical at the hotel. Now, we are at parody with the rest of the Country as far as police officers and I do not want the police officers to think that we are blaming them because we are in this financial hole. This hole started a while ago. As we look across the Administration and in Council Services, I think this year is the year that we have to start looking for duplication, duplication of work, what is essential and what is not. I think we have to take a serious look at that because we cannot continue to raise taxes every single year, but if we do not change anything, based on the increases in payroll, the increases in benefits, we will be in a deeper hole next year. We are going to have to raise more taxes because it grows exponentially. So, we have to start thinking about that. What can we consolidate within the individual Departments? As people retire we need to say, "Thank you for your service" and throw away the position and not rehire if we can incorporate those duties into other positions. That is what we have to do. We cannot continue to feed this beast every single year. That is what I have been saying for many, many years. I am not a finance person. I have no degree in Finance or Business. It is in Criminal Justice. I am an investigator. I am no finance person, but I could see it in 2011 and 2012, Fiscal Year 2011-2012, that we would be here today. Did no one else see it? I think they did, but we just keep on plugging. Now, it is real because it is at our door. Back then it was yes, we will get to it later, we will get to it, we still have plenty money. We look at the charts, oh, yes, we had the money, but it came quick and now reality is setting in because now credit ratings are telling us...or credit reporting agencies are telling us, "Hey," or bond companies are telling us, "Hey, we are going to start letting you know that we are concerned and you folks need to fix it." We cannot COUNCIL MEETING 102 MAY 28, 2014 just continue to say, "Let us feed the Reserve by raising taxes or let us take Rob from Peter to pay Paul" and I am talking about OPEB. That is not sustainable. I did not want to take away from our one hundred percent (100%) payment of OPEB, but I do not know where else to get the money from. I just do not know. I simply cannot support tax fee increases at this time, but we have to start looking internally, and I am talking not the Council as well, not just the Mayor. Internally, can we consolidate the duties and the work here at Elections, at...every Department should be looking at that. I think this next year, as we go through the year, that has to be a constant item, I guess, for us to consider and we cannot lose focus of that as the year progresses. I mean, the way I look at it is we have a year head start for next year's budget. It starts tomorrow and we have to seriously take a look at that. I appreciate the Administration, the Mayor, and the Budget Team. I cannot say enough about the Budget Team since you put it all together, Mr. Mayor. I think for once we were getting good information, real information, and I appreciate that. It makes it a lot easier for us not having to try to decipher some cryptic code from budget teams of past. So, I really appreciate that and I mean that with all my heart. Of course, our staff. I mean, our staff, and I think much has been said about our staff and the work that they go through, not just our Budget Analyst Staff, but I mean all of our staff, support staff. There is never a moment that we go on and we do not get what we asked for, but I will ask... SCOTT K. SATO, Council Services Review Officer: Five (5) minutes. Mr. Rapozo: ...the Administration that once this budget passes, that we start on the road for next year's budget. We have to have those discussions throughout the year, not once the budget is submitted. I think it needs to be an ongoing annual discussion. Again, I will be supporting the budget this year. I think we are faced...reality has finally slapped us in the face and we just have to get real now. We have to go to work and I look forward to doing that in the year ahead. Thank you. Chair Furfaro: Mr. Kagawa you wanted to add something there? Mr. Kagawa: Yes, I just wanted to clarify. If you all remember, my cuts to the overtime for Police and Fire were very miniscule because as we found out, we could not touch a lot of the overtime because of union contracts. So, we ended up cutting very small amounts from Police and Fire. What we did cut, and I will be straight up, was we cut a lot of your travel budgets for Police and Fire. We believe that in rough, tight times, we need to manage our travel and go on trips that is really necessary to keep the public safe. Other travel that perhaps can wait, let us wait on until times get a little better. So, that is where my major cuts was, to travel for public safety. Thank you. Chair Furfaro: Okay. JoAnn, some more. Ms. Yukimura: Yes, I want to be really clear that I did not say that salary increases in public safety are the cause of our financial problems. I said that there is no question that public safety is a hugely important item and that salaries need to be sufficient to attract and retain well-qualified personnel. However, they are one of the factors the need to be looked at like at expenditures that we are looking at and not take away what is deserved, but we must look at all of this in the COUNCIL MEETING 103 MAY 28, 2014 context of other salaries and other needs as well, as we are doing with everything. We just have to make this part of our budget process because it is a budget factor. Chair Furfaro: Has everybody spoken? Okay. I have a little bit of a throat problem. First of all, I want to correct a couple things here. You folks should know that four (4) years ago when the State took away our TAT, that is what hit us in the face. That is twenty-one million seven hundred thousand dollars ($21,700,000). When we find ourselves also changing our categories from what the Auditor says we can do, that is pretty serious because they basically told us we could not use Bond money to fix roads. We have to think strategically over here although the Charter tells you, you cannot project future expenses as part of your credit. You have to see those strategic things happening to us along the way and we also gave away fifty-one million dollars ($51,000,000) in tax relief to primary homeowners during the time the cap was in place because it was a quick fix, but it was a reality. Now, I am not going to go anymore. I am going to ask Scott to read my testimony and ask him to give you copies. My voice is shot. So, Scott, could you read my comments? Mr. Sato: The following are Council Chair Furfaro's closing comments as he has asked for it to be read into the record. The County has always, to some extent, relied upon Fund Balance in order to achieve a balance budget. At least sixteen (16) prior budgets have relied on the projected unappropriated surplus to achieve a balance of the annual budget. However, this process changed in Fiscal Year 2014 and only available Unassigned Fund Balance is utilized. Future initiatives by the Administration to partially address sustainability issues include the creation of the Vacancy Review Committee designed to evaluate every position that is vacated in the County due to anticipate or unanticipated attrition. The work that has been done by the Administration and the Council to reach a sustainable budget in last four (4) to five (5) years cannot be discounted and the progressive steps taken in recent years should yield results in the near future. We did not get to this point overnight and should not expect to correct things in just one (1) year. In regards to the Other Post-Employment Benefits (OPEB) it is difficult to speak about the value of sustainability and at the same time, advocate a deliberate policy of ignoring one million five hundred thousand dollars ($1,500,000) in our unfunded liability for OPEB. Deferring the unfunded liability is not a cost-savings. In regards to the Reserve Fund, based on the GFOA, Government Finance Officers of America Standards, the total of two (2) months of operating expenses should constitute the reserve. That translates into approximately eighteen million dollars ($18,000,000) to twenty million dollars ($20,000,000). The bulk of these funds should ideally by place in a committed reserve with strict governance to avoid spending down via Reserve Fund Policy, which may mirror the Resolution that Chair Furfaro introduced and Provisos that we currently have in place. This Reserve should also be clearly acknowledged as part of the County's long-term financial health to be avoid being seen as expendable or discretionary with respect to Collective Bargaining efforts. In relation to Collective Bargaining, with the exception of State of Hawaii Organization of Police Officers (SHOPO) and the Hawaii Fire Fighters Association (HFFA), our County employees have not received pay or fringe benefit increases in five (5) years. COUNCIL MEETING 104 MAY 28, 2014 With regards to fuel and motor vehicle weight taxes. The increase in the vehicle tax is critical to support the repaving initiatives for the Department of Public Works. A prior internal audit disallowed the use of the Bond Fund for the purpose of repaving as this was considered repair & maintenance. The inability to utilize the Bond Fund for repaving, which had been a standard practice for many years, created a significant shortfall in funds needed to responsibly attend to repaving needs and the Bond Council has also affirmed that the Bond Fund cannot be used for R&M purposes. Recycling costs. In Fiscal Year 2014, many of the recycling programs were short funded as a means to help balance the budget. In Fiscal Year 2015, all of these programs are fully funded at well over three million dollars ($3,000,000). The County will continue to work incrementally toward its curbside recycling initiative, which cannot effectively occur until the development of the Materials Recovery Facility. In closing, Council Chair would like to thank the Mayor, the Managing Director, the Administration, and Council Services staff for their collaborative efforts. He would also like to thank the Councilmembers for their diligent work in a budget process that was not easy, but one that each member contributed greatly to and in the end, is what he believes to be a manageable and obtainable budget that we can all move forward to support. He acknowledges that we have much work left to do, but as he motioned earlier, we must strive towards budget sustainability. Chair Furfaro: Thank you. I do wish that at some point in time, my Resolution on a reserve policy can go from a Resolution that has been sitting there for three (3) years to actually an Ordinance/Bill so that we know what our fixed Reserve will be. I also want to give a special shout out to all of you. There are times where we agree to disagree, but some of the compromising, especially in the area of payroll and overtime led by Mr. Kagawa and worked very diligently with public safety and so forth, is much appreciated. Mel, Mr. Kagawa, Mr. Chock, Mr. Bynum, Ms. Yukimura, and of course, Mr. Hooser, it is rewarding to have the team get to this point. Mr. Mayor, thank you very much. I will send my written comments over and I will distribute it to all of the Councilmembers. On that note, we should be taking a vote, right? The motion to adopt Bill No. 2537, Draft 1 on second and final reading and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: Kagawa TOTAL— 1, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: 6:1. Chair Furfaro: To the staff, thank you very much for all you do. Thank you. Thank you everyone. We have an Operating Budget. Now we need to go to CIP before we close the day. So, let us move on. Bill No. 2538, Draft 1 — A BILL FOR AN ORDINANCE RELATING TO CAPITAL IMPROVEMENTS AND FINANCING THEREOF FOR THE FISCAL COUNCIL MEETING 105 MAY 28, 2014 YEAR JULY 1, 2014 TO JUNE 30, 2015 (Mayor's CIP Budget): Ms. Yukimura moved to adopt Bill No. 2538, Draft 1 on second and final reading and that it be transmitted to the Mayor for his approval, seconded by Mr. Bynum. Chair Furfaro: I have a motion and a second. Mr. Kagawa, you have the floor. Mr. Kagawa: I just want to thank again, the Administration, Mr. Suga, he is doing a great job. Chair, I just wanted to thank you because I could not, I think, at this point in my career, manage this group. So, I thank you for giving us...I mean, you have been fair with everybody, giving everybody a chance to do what we want to do and always fair with all of that. So, I want to thank you. Chair Furfaro: Thank you for recognizing that. It has been a pleasure, but I want to tell you, when I started, I had a full head of hair like you. Okay, discussion on the CIP? Mr. Rapozo: Mr. Chair, I need forty-five (45) minutes. Chair Furfaro: You need forty-five (45) minutes? Mr. Rapozo: For a presentation. Chair Furfaro: Okay. Mr. Rapozo: No, I am just kidding, Mr. Chair. Chair Furfaro: No, no. Mr. Rapozo: I am totally joking. Chair Furfaro: I just was debating if I was going to take my insulin or not. Understood. Is there anyone in the public that wishes to speak on CIP? There being no objections, the rules were suspended to take public testimony. There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: I think we can go ahead and see if there is any further discussion. If not, I am going to call for a roll call vote. The motion to adopt Bill No. 2538, Draft 1 on second and final reading and that it be transmitted to the Mayor for his approval was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 7, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: None TOTAL— 0, RECUSED & NOT VOTING: None TOTAL — 0. COUNCIL MEETING 106 MAY 28, 2014 Ms. Fountain-Tanigawa: Seven (7) ayes. Chair Furfaro: We have seven (7) ayes. Congratulations everyone. We have now taken care of all of the budget items of significance for this year. May I just give everybody a round of applause? We have more business to take of, and I am going to give us a ten (10) minute break here just so people can leave quietly and so forth. Caption break, ten (10) minutes. There being no objections, the Council recessed at 5:16 p.m. The meeting was called back to order at 5:26 p.m., and proceeded as follows: (Mr. Bynum was noted as not present.) Ms. Fountain-Tanigawa: This is on page 4, Legal Document. There being no objections, C 2014-169 was taken out of order. LEGAL DOCUMENT: C 2014-169 Communication (05/19/2014) from the County Engineer, recommending Council approval to secure a Construction Right-of-Entry and Governor's Executive Order for a portion of the Lihu`e State Building parcel, for the purpose of providing additional parking and sidewalk modifications along Hardy Street, Lihu`e, which includes indemnification of the State of Hawaii, Department of Land and Natural Resources, situated at Tax Map Key (TMK) No: (4) 3-6-005:011. • Right-of Entry Agreement Ms. Yukimura moved to approve C 2014-169, seconded by Mr. Kagawa. Chair Furfaro: (Inaudible). There being no objections, the rules were suspended. LARRY DILL, P.E., County Engineer: Good evening Council Chair and members of the Council. For the record, Larry Dill, County Engineer. This request is a follow-up to and consistent with the traffic Resolutions that we presented the Council for Hardy Street in recent days, recent weeks. In order to complete the project, we will have to actually subdivide out a small sliver of land from the Lihu`e State Building parcel owned by the State of Hawai`i under the jurisdiction of Department of Land and Natural Resources (DLNR). What this document will allow us to do until that subdivision happens is it will give us a construction right-of-entry. There is indemnification associated with that and thereof we are here today and are requesting your approval of that. (Mr. Bynum was noted as present.) Mr. Dill: At the end of the project, the land will be subdivided out and will be conveyed to the County as part of the Hardy Street right-of-way. Chair Furfaro: That would be at the conclusion? COUNCIL MEETING 107 MAY 28, 2014 Mr. Dill: Correct. Chair Furfaro: So, this is about cutting out a piece for an easement to actually do the work? Mr. Dill: Correct, or righty-of-entry, technically, yes. Chair Furfaro: Right-of-entry. I am sorry. Go ahead, Mr. Kagawa. Mr. Kagawa: Where is that location of the easement if I look out this window? Mr. Dill: It is right over there, yes. It is on Hardy Street just west of the Umi Street intersection. So, it is on the State parcel in the vicinity of that architectural monument. Mr. Kagawa: Okay. Mr. Dill: Over there in that area. Mr. Kagawa: Okay. Mr. Dill: Yes. Mr. Kagawa: Thank you. Thank you Chair. Chair Furfaro: Thank you. Other questions for Mr. Dill or Lyle? No? Thank you gentlemen. No one else? Anyone else wanting to testify now? There being no one present to provide testimony at this time, the meeting was called back to order, and proceeded as follows: Chair Furfaro: This is an approval, and this approval will be by roll call. Ms. Fountain-Tanigawa: Voice vote is fine. Chair Furfaro: Voice is fine. Very good. The motion to approve C 2014-169 was then put, and unanimously carried. Chair Furfaro: It is 7:0. Thank you. Ms. Fountain-Tanigawa: The next item... Chair Furfaro: Thank you, gentlemen. Ms. Fountain-Tanigawa: The next item is also on page 4, C 2014-166. There being on objections, C 2014-166 was taken out of order. C 2014-166 Communication (05/07/2014) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend State funds in the COUNCIL MEETING 108 MAY 28, 2014 amount of $37,217, and approval to indemnify the State of Hawaii, Department of the Attorney General, for the term commencing July 1, 2014 for the Kaua`i Victim Witness Assistance Program: Mr. Kagawa moved to approve C 2014-166, seconded by Mr. Rapozo. Chair Furfaro: I have a motion to approve and a second. Do we have questions for the Prosecutor's Office? Seeing none, we will move to approve, and we do this roll call, right? Voice is fine. Boy, it is a good day for us. Voice is fine. The motion to approve C 2014-166 was then put, and unanimously carried. Chair Furfaro: 7:0. Ms. Fountain-Tanigawa: The next item is C 2014-167. C 2014-167 Communication (05/07/2014) from the Prosecuting Attorney, requesting Council approval to apply for, receive, and expend Federal funds in the amount of$199,504, and approval to indemnify the State of Hawaii, Department of the Attorney General, for the term commencing August 1, 2014, for the Kauai Victim of Crime Act (VOCA) Expansion Project: Mr. Bynum moved to approve C 2014-167, seconded by Mr. Chock. Chair Furfaro: I have a motion and a second. Discussion members? Anybody want to testify on this? There being no one to provide testimony, the meeting was called back to order, and proceeded as follows: Chair Furfaro: And I am going to chance it on a voice vote. The motion to approve C 2014-167 was then put, and unanimously carried. Chair Furfaro: 7:0. Ms. Fountain-Tanigawa: The next item is C 2014-168. C 2014-168 Communication (05/16/2014) from the Hawaii State Association of Counties (HSAC) President Mel Rapozo, transmitting for Council approval the slate of officers for the HSAC Executive Committee and Board of Director nominations for the National Association of Counties (NACo) and the Western Interstate Region (WIR) for the 2014-2015 term, pursuant to Section 5, Section 5A, and Section 5C of the Bylaws of the Hawaii State Association of Counties, Inc: Mr. Chock moved to approve C 2014-168, seconded by Ms. Yukimura. Chair Furfaro: I have a motion from Vice Chair and second by Ms. Yukimura. Discussion? Do you want the floor, Mr. Rapozo, for this? Mr. Rapozo: Not necessarily. Thank you. Chair Furfaro: Okay. Mr. Rapozo: I do. I need to make one (1) announcement that if you notice on the Secretary position, there is no Councilmember identified COUNCIL MEETING 109 MAY 28, 2014 and that is because they were not able to submit the Resolution in time for the Hawai`i State Association of Counties (HSAC) Meeting. So, once they are done, then that name will show up as a Secretary for the Executive Committee. Until then, the Honolulu City Council Chair will be the representative for a while. Thank you. Chair Furfaro: Is this the June 12th day we will see this nomination? Mr. Rapozo: It will be July 1st. Chair Furfaro: July 1st? Mr. Rapozo: Yes. Chair Furfaro: For July? Mr. Rapozo: Well, the Chair will be in that position until they complete the Resolution. Chair Furfaro: Okay. Mr. Rapozo: So, Stanley Chang will serve until the end of June. Chair Furfaro: Okay, got it. JoAnn, question? Ms. Yukimura: No. I just want to thank and congratulate Councilmember Rapozo for taking on this leadership position that connects us to all the other Counties and allows us to do our work together. Chair Furfaro: Is that three (3) years now, Mel? Mr. Rapozo: It started in the last term, I mean, my last run. So, I am not sure. I think it is probably about five (5) or six (6) years now. Chair Furfaro: Five (5)? Mr. Rapozo: Yes. Chair Furfaro: Building some seniority, right? Mr. Rapozo: Looking for someone else. As you can see on the Western Interstate Region (WIR) Board, we did lose our seat on the WIR. Kaua`i was blessed to have a National Association of Counties (NACo) Board seat and a WIR Board seat, but as you can see, Maui now has the second WIR. So, it is Maui and Big Island has the WIR and Kaua`i and...I am sorry. Big Island and Maui has WIR and Kaua`i and Maui has NACo board seats. Chair Furfaro: Well, spreading the wealth. Mr. Rapozo: Trying to. COUNCIL MEETING 110 MAY 28, 2014 Chair Furfaro: Spread the wealth. Further discussion? Mr. Bynum. Mr. Bynum: Just a question for Mr. Rapozo. Riki Hokama, did he take his...assume his position at NACo? Mr. Rapozo: No, he will be assuming his new position at the NACo Annual Conference in July in New Orleans. I am hoping that we could get as many Councilmembers there. I know the timing is not good, but it is a pretty big event for Hawai`i to get our local boy from Lana`i to become the NACo President. He will be leading the, probably the largest lobbyist organization in the Country beating out some big States or candidates from big States like Texas and California. So, Riki is going to be assuming his role. Mr. Chock just attended our WIR Conference in Anchorage, Alaska last week and I think his eyes were opened to some extent as to what it is all about. The conference in New Orleans in July is where he will be officially taking over. Chair Furfaro: Do you have that date? Okay, you can get it to us later. Any further discussion? We just need a voice approval? The motion to approve C 2014-168 was then put, and unanimously carried. Chair Furfaro: 7:0. Next item. Ms. Fountain-Tanigawa: The next item is on the bottom of page 4. CLAIM: C 2014-170 Communication (05/14/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kaua`i by Sheilah Miyake, c/o Peter W. Olsen, esq., for reimbursement of legal fees and expenses, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Kagawa moved to refer C 2014-170 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Ms. Yukimura. Chair Furfaro: I have a second there. Voice vote is okay? The motion to refer C 2014-170 to the County Attorney's Office for disposition and/or report back to the Council was then put, and unanimously carried. Chair Furfaro: 7:0. Ms. Fountain-Tanigawa: The next item is on page 3. This is on the bottom, number 3. C 2014-165 Communication (05/07/2014) from the Executive on Transportation, requesting Council approval to accept a donation of four (4) full-size transit buses from the City and County of Honolulu, Department of Transportation Services, and the donation of free shipment for two (2) buses by Young Brothers, which will be used to address growth in demand resulting in the overcrowding on several bus routes: Mr. Bynum moved to approve C 2014-165 with thank-you letter to follow, seconded by Mr. Kagawa. Chair Furfaro: Further discussion? COUNCIL MEETING 111 MAY 28, 2014 Mr. Rapozo: I have a...oh, you have a question? Mr. Kagawa: I have a question. Mr. Rapozo: I have a question. Chair Furfaro: Go ahead, Mr. Kagawa, followed by Mr. Rapozo. Mr. Kagawa: Celia. Chair Furfaro: Celia. Mr. Bynum: Celia. Ms. Yukimura: I am missing on, C 2014-165. There being no objections, the rules were suspended. Mr. Kagawa: Thank you, Celia. My question is, are those transit buses in good condition or do they need to be repaired before they start running? CELIA M. MAHIKOA, Executive on Transportation: I am Celia Mahikoa with the Transportation Agency. My understanding is that these vehicles are in good running condition still. They do take excellent care of their vehicles at The Bus on O`ahu. So, they are in good operating condition and they have reached a point where they have been replaced and therefore, they are willing to share them with us. Mr. Kagawa: Is this the first time we have gotten buses donated from them? Ms. Mahikoa: This is the first time that I am aware of. I have been with the Agency nineteen (19) years. So, I do not know if there has ever been a time prior to that where they have done that. Mr. Kagawa: So, are we going to...before we get it running routes, are we going to have maybe our mechanic or somebody kind of test run it and make sure it... Ms. Mahikoa: Yes, certainly. We are going to...part of the reason why we are excited about his opportunity is the fact that there is naturally going to be a learning curve with a new type of vehicle. So, we are looking at the ability to check how it will operate on the roadways, how it will operate with the bus stops, and how our mechanics will be able to be maintaining and repairing these vehicles as well. Mr. Kagawa: Well, if I can ask, just in brief summary, how did this come about? Was it talks between yourself and the Agency and they just offered it? Ms. Mahikoa: Yes, actually, I believe Maui has, the Maui bus system has taken this opportunity in the past and we typically meet several COUNCIL MEETING 112 MAY 28, 2014 times a year, all of the transit providers, and at one of those meetings, they were able to share with us, that opportunity. When O`ahu transit had the replacement scheduled, we had approached them and asked them if they would be willing to consider this and they were very happy to accommodate us. So, very grateful for this. Mr. Kagawa: Great job, Celia. Thank you, and... Ms. Mahikoa: Thank you. We have a great team. Mr. Kagawa: ...keep up the good work. Thank you. Chair Furfaro: JoAnn, then Mel. Go ahead, JoAnn. Ms. Yukimura: Thank you. Councilmember Kagawa asked a lot of the questions I was going to ask. It is commendable that you are using this as an opportunity to start using larger buses and that is sort of exciting. I see that Young Brothers is offering to ship two (2) of the four (4) for free. Ms. Mahikoa: Yes. Ms. Yukimura: So, we are getting support from them as well. Ms. Mahikoa: Exactly. They are very generous as well. Ms. Yukimura: Well, thank you for your initiative and good luck. We will wait to hear the report back. Thank you. Ms. Mahikoa: Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo: Thank you, Mr. Chair. How old are the buses? Ms. Mahikoa: I am sorry. Mr. Rapozo: How old are the buses? Ms. Mahikoa: I believe they are eighteen (18) years old. I can stand corrected on that one. I can confirm that. Mr. Rapozo: All four (4)? Ms. Mahikoa: Yes. Mr. Rapozo: And do you know what the mileage is? Ms. Mahikoa: No, I do not have the specifics on the vehicles right now. Mr. Rapozo: And what is the life, the typical life of these buses? COUNCIL MEETING 113 MAY 28, 2014 Ms. Mahikoa: Typical life is... Mr. Rapozo: Eighteen (18) years? Ms. Mahikoa: Probably close to that. Mr. Rapozo: I just do not want to take O`ahu's trash. I mean, really, to dispose of these buses is expensive and I do not want to...I hate to sound like I am not supporting this, but typically when we get a request to utilize a vehicle whether it is the Police Department, we get a whole specifications sheet, year, mileage, and that is not attached. I do not even know. What is the shipping of the two (2) buses on Young Brothers? What does that amount to? Ms. Mahikoa: You want know the value? It... Mr. Rapozo: Well, they are paying for two (2), but we are getting four (4). Ms. Mahikoa: Yes. Mr. Rapozo: So, how much are we being charged for shipping the two (2)? Ms. Mahikoa: It averages out to about three thousand dollars ($3,000) per vehicle. Mr. Rapozo: Okay, so, six thousand dollars ($6,000) for the two (2) buses, for the four (4) buses, right? Ms. Mahikoa: Yes. Mr. Rapozo: They are giving us...they are basically waiving the fees for two (2) of the buses and we pay for the two (2)? Ms. Mahikoa: Yes. Mr. Rapozo: So, about six thousand dollars ($6,000), and then the maintenance cost, have we even sent...did anyone go over to take a look at these buses, our mechanics take a look if it is something that we can even repair? Ms. Mahikoa: Actually, we are not going to invest anything in it until we know whether we are going to be allowed to accept the donation. So, we were waiting for that point. Mr. Rapozo: Okay. So, if we approve the donation, is that...basically, are you going to go research further and... Ms. Mahikoa: Yes. Mr. Rapozo: Or are we going to have the buses come there and then we do the...I just do not want to...again, I do not want to accept their trash. COUNCIL MEETING 114 MAY 28, 2014 Ms. Mahikoa: I completely understand your concern and I would not to either. I mean, storage space, is another... Mr. Rapozo: Well, storage is one thing, but I have been told there is a bucket truck that we bought a while back and it is something that we have to look into. I just found out about this a couple days ago, in Public Works, and it is sitting idle somewhere because we cannot fix it. I just want to make sure...again, eighteen (18) years is quite old... Ms. Mahikoa: You are right. Mr. Rapozo: I am concerned that we are going to pick up their rubbish and then we are going to have to pay for their disposal of the bus that we cannot run. So, I would hope that...I mean, I will support this, but I am hoping that once the support comes or the approval is given, that you may send a mechanic or at least get some information that the mechanics...that we know that is something that we can maintain it. I do not want to a request for a new position here in a month that we need this mechanic because the buses that we just got free from Honolulu require a different type of mechanic. I do not want to see that. Ms. Mahikoa: I understand that. Mr. Rapozo: Thank you. Ms. Mahikoa: Thank you. Chair Furfaro: Yes, I think Mr. Rapozo is making the point, if that is the case, then they were not free. Ms. Mahikoa: You are right. Chair Furfaro: Right, because we had to add steps? So, is it my understanding, based on the recommendation that Mr. Rapozo is making, if we accept this today, we are actually going put somebody on a plane to go over and inspect the buses before we tell them "ship?" Ms. Mahikoa: Yes, that is our intention. Chair Furfaro: That is our understanding? Ms. Mahikoa: Yes. Chair Furfaro: Based on what Mr. Rapozo has said. Okay, JoAnn, you have the floor, then Tim. Ms. Yukimura: So, do you have a travel budget to send someone? Mr. Rapozo: She can take it out of the six thousand dollars ($6,000)... Mr. Bynum: I was not going to say that. Ms. Mahikoa: Fortunately... COUNCIL MEETING 115 MAY 28, 2014 Mr. Rapozo: ...that they have available for the shipping. It says they have available... Ms. Yukimura: That they have the six thousand dollars ($6,000). Anyway... Ms. Mahikoa: Fortunately, we do have funding that we can. Ms. Yukimura: I mean, it just shows that some travel is very necessary to save money. Chair Furfaro: Mr. Bynum. Mr. Bynum: That was not my question. These are full- size buses? Ms. Mahikoa: Yes. Mr. Bynum: So, we are going to be trying them out on express routes to have longer runs to begin with, I assume? Ms. Mahikoa: Yes, or high demand routes, yes. Mr. Bynum: It is very interesting and we can talk later because a few years ago it was like, no, we are never going have those buses and we cannot accommodate them. So, you are rethinking that, right? Ms. Mahikoa: Definitely, oh, well, partially because we are given this opportunity where these buses where these buses typically will, brand new, will cost you close to one million dollars ($1,000,000). Mr. Bynum: Right. So, thank you. Ms. Yukimura: One bus? Ms. Mahikoa: Right, of those caliber. Ms. Yukimura: One million dollars ($1,000,000). Mr. Bynum: Yes, so, if we can get a few years out of them, it is all good. It is all pono. Mr. Rapozo: That is why the maintenance is not cheap. Chair Furfaro: So, they are either forty-eight (48), fifty-two (52), or fifty-four (54) passengers? Ms. Mahikoa: I do not know the exact count on these vehicles, but they are the typical The Bus buses that they use, not those large articulated ones, no. Chair Furfaro: Anyway, if you could get hat information for us... COUNCIL MEETING 116 MAY 28, 2014 Ms. Mahikoa: Certainly. Chair Furfaro: When we find somebody, you could travel over on your miscellaneous travel line, and then please, share that information with us. Further questions? Mr. Rapozo. Mr. Rapozo: Yes, and then we also have to paint those buses, right Ms. Mahikoa: Yes. Mr. Rapozo: Because they are going to send them to us with The Bus logo on it. Ms. Mahikoa: Exactly. Mr. Rapozo: And that is another, I think, pretty expensive cost. Ms. Mahikoa: So, naturally, they are not going to be on the road within a couple of months. When we receive them there is a learning curve with this, the preparation, and the assessing of the practical use of them on the roadways. Mr. Rapozo: Well, I guess what I would ask is that once you get all of the information, I kind of would like to see a breakdown of the cost to the County including whatever we anticipate it cost to carry these buses... Ms. Mahikoa: Certainly. Mr. Rapozo: ...and to maintain the buses, and how long we expect to keep these buses. Thank you. Chair Furfaro: Vice Chair Chock. Mr. Chock: Just further request actually. Sorry to add more, but what will be good is to see side by side. Ms. Mahikoa: Comparative. Mr. Chock: What is the alternative in what you had projected in the future? If you were maybe going what a new or used bus somewhere else in order to fulfill the need as opposed to this option. Thank you. Ms. Mahikoa: Sure. Chair Furfaro: I hate to bombard you with this, but I assume after the inspection, we found out its value, we will see about painting them in Honolulu because it will probably be cheaper in an industrial shop there. Have you given that thought? Ms. Mahikoa: That will be part of the assessment that we are doing on it. COUNCIL MEETING 117 MAY 28, 2014 Chair Furfaro: Very good. Thank you. Ms. Mahikoa: Sure. Chair Furfaro: Anymore questions? There being no objections, the meeting was called back to order, and proceeded as follows: The motion to approve C 2014-165 with thank-you letter to follow was then put, and unanimously carried. Chair Furfaro: Very good. Happy driving. Ms. Fountain-Tanigawa: The next item is again, on page 3, C 2014-125 to be deferred. (Mr. Bynum was noted as recused.) C 2014-125 Communication (04/17/2014) from the County Attorney, requesting authorization to expend funds up to $15,000 to retain Special Counsel to advise the Council concerning coverage under the County's insurance policy with Everest National Insurance Company, in connection with the lawsuit Tim Bynum vs. County of Kauai, et al., Civil No. CV12-00523 JMS-RLP (United States District Court), and related matters: Mr. Rapozo moved to defer C 2014-125, seconded by Ms. Yukimura. Chair Furfaro: This is a request from the County Attorney. The motion to defer C 2014-125 was then put, and carried by a vote of 6:0:1 (Mr. Bynum was recused). (Mr. Bynum was noted as present.) Chair Furfaro: Next item. Ms. Fountain-Tanigawa: The next item is on page 5, Committee Reports. There being no objections, the Committee Reports were taken out of order. COMMITTEE REPORTS: PUBIC WORKS / PARKS & RECREATION: A report (No. CR-PWPR 2014-06) submitted by the Public Works / Parks & Recreation Committee, recommending that the following be Received for the Record: "PWPR 2014-04 Communication (05/06/2014) from Council Chair Furfaro, requesting the presence of the Director of Parks and Recreation, County Engineer, and Executive on Transportation, to provide an update regarding the restoration of the former Hanalei Courthouse facility, including, but not limited to, the following: COUNCIL MEETING 118 MAY 28, 2014 • The planned use(s) for the facility; • The proposed design of the bus stop and bus shelter, if any, and future plans for bus service, bus base yard, etc.; • The appropriate septic system; • The design of the pathway(s) adjacent to the facility grounds; • The proposed landscaping of the facility grounds; and • The proposed design to prevent flood damage to the building," Mr. Bynum moved for approval of the report, seconded by Mr. Rapozo. Chair Furfaro: We have a motion and a second to approve. Discussion? The motion for approval of the report was then put, and unanimously carried. Chair Furfaro: Next item. ECONOMIC DEVELOPMENT (SUSTAINABILITY / AGRICULTURE / FOOD / ENERGY) & INTERGOVERNMENTAL RELATIONS COMMITTEE: A report (No. CR-EDR 2014-01) submitted by the Economic Development (Sustainability / Agriculture / Food / Energy) & Intergovernmental Relations Committee, recommending that the following be Received for the Record: "EDR 2014-01 Communication (04/21/2014) from Committee Chair Hooser, requesting the presence of the Director of Economic Development to provide a briefing on the County's initiatives (current and proposed) relating to agriculture, including, but not limited to, any funding requirements of the project and available grants and restrictions thereto," Ms. Yukimura moved for approval of the report, seconded by Mr. Rapozo. Chair Furfaro: Discussion? The motion for approval of the report was the put, and unanimously carried. Chair Furfaro: Next item. COMMITTEE OF THE WHOLE: A report (No. CR-COW 2014-06) submitted by the Committee of the Whole, recommending that the following be Received for the Record: "CR-COW 2014-03 Communication (05/15/2014) from Committee of the Whole Chair Furfaro, transmitting the proposed increases to, deductions from, and other proposed amendments (plus/minus sheet) to the Mayor's Fiscal Year 2014-2015 Annual Operating and Capital Improvement Projects Budgets," Ms. Yukimura moved for approval of the report, seconded by Mr. Kagawa. A report (No. CR-COW 2014-07) submitted by the Committee of the Whole, recommending that the following be Approved as Amended on second and final reading: COUNCIL MEETING 119 MAY 28, 2014 Resolution No. 2014-11 — RESOLUTION ESTABLISHING THE REAL PROPERTY TAX RATES FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015 FOR THE COUNTY OF KAUAI," Ms. Yukimura moved for approval of the report, seconded by Mr. Kagawa. A report (No. CR-COW 2014-08) submitted by the Committee of the Whole, recommending that the following be Approved as Amended on second and final reading: "Bill No. 2537 — A BILL FOR AN ORDINANCE RELATING TO THE OPERATING BUDGET AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015 (Mayor's Operating Budget)," Ms. Yukimura moved for approval of the report, seconded by Mr. Kagawa. A report (No. CR-COW 2014-09) submitted by the Committee of the Whole, recommending that the following be Approved as Amended on second and final reading: "Bill No. 2538 — A BILL FOR AN ORDINANCE RELATING TO CAPITAL IMPROVEMENTS AND FINANCING THEREOF FOR THE FISCAL YEAR JULY 1, 2014 TO JUNE 30, 2015 (Mayor's CIP Budget)," Ms. Yukimura moved for approval of the report, seconded by Mr. Kagawa. Chair Furfaro: Discussion? The motion for approval of CR-COW 2014-06, CR-COW 2014-07, CR-COW 2014-08, and CR-COW 2014-09 was then put, and unanimously carried. Chair Furfaro: 7:0. Next. Ms. Fountain-Tanigawa: The next item is again on page 6. RESOLUTIONS: Resolution No. 2014-22 — RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE CODE OF ETHICS: Ms. Yukimura moved to adopt Resolution No. 2014-22, seconded by Mr. Bynum. Chair Furfaro: Discussion? Ms. Yukimura moved to amend Resolution No. 2014-22 as circulated, as shown in the Floor Amendment which is attached hereto and incorporated herein as Attachment 1, seconded by Mr. Chock. Ms. Yukimura: Is this it, Aida? Yes. Chair Furfaro: Is that it? Ms. Yukimura: Everybody has that. COUNCIL MEETING 120 MAY 28, 2014 Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: Yes, the amendment is really just a better wording, no change in substance or direction. I want to point out, though, that if we do not change it Jeana Ku`ulakukui technically should not have testified today. She is an employee and she is not supposed to appear on behalf of private interest before nay County board. That is how convoluted this requirement is. So, that is why we are trying to change it. It allows people to appear for private interest whether non-profit or profit before boards other than the board on which they sit. Chair Furfaro: Okay. Mr. Hooser. Mr. Hooser: So, to Councilmember Yukimura, you are referring to the amendment or to the underlying... Ms. Yukimura: Well, both. Mr. Hooser: So, you said the amendment was not substantive and if it was not for the amendment... Ms. Yukimura: Well... Mr. Hooser: ...someone would be able to be here? Ms. Yukimura: Well, no. It is really just pointing out that we are just specifying that "sits" applies to Boards and Commission and/or is employed to employees by this amendment. Mr. Hooser: So, the amendment is or is not substantive? Can I get another copy of the amendment, please? Ms. Yukimura: Oh, sure. Here. It is not substantive, technically. I guess I am using it as an opportunity to explain the whole amendment. Mr. Hooser: Okay. Chair Furfaro: I am leaving the... Ms. Yukimura: Any other questions? Chair Furfaro: ...discussion down by you. Do you have any more questions, Mr. looser? Mr. Hooser: Yes, I guess if it is not substantive, then why do we need it? I do not know. It just seems like... Ms. Yukimura: Because it clarifies... Mr. Hooser: ...it adds a comma and adds some words, "as the case may be." I do not know why the case may be. (Mr. Rapozo was noted as not present.) COUNCIL MEETING 121 MAY 28, 2014 Ms. Yukimura: We checked it with the County Attorney. He said it is a better wording. It just makes it clear that "sits" applies to Boards and Commission and "is employed by" applies to employee because it is funny for an employee to sit. That is all. It is a common phrase, "as the case may be." Mr. Hooser: Okay. Chair Furfaro: Mr. Kagawa, did you have anything? Mr. Kagawa: Yes. Chair Furfaro: Okay. Mr. Kagawa: Councilmember Yukimura, why did we need this Resolution? Was there a particular case that... Ms. Yukimura: Yes, actually, it started, I think, with Mike Furakawa who was on some board and then he wanted to testify before the Council or some other board and this provision prohibited him doing so. (Mr. Rapozo was noted as present.) Ms. Yukimura: Same thing, technically, it applied to Kaua`i Coffee, Wayne Katayama, who is on the Planning Commission, but he could not testify before the County Council on Bill No. 2491. Mr. Kagawa: So, this would allow...with this amendment, Wayne would not be able to testify... Ms. Yukimura: Yes. Mr. Kagawa: ...if we had a Bill No. 2491? Ms. Yukimura: That is right. Mr. Kagawa: Okay, that is fine. Ms. Yukimura: Because there is no actual conflict of interest in him appearing before another board. There would be a potential conflict if he appeared before the board on which he sat because they would be making a decision probably about whatever he would be talking about. Mr. Kagawa: Yes, if that is the reason for this amendment, just that situation, I am just thinking if there is any other situations where perhaps we would say we should have not done this Resolution, but I cannot think of any off my head. I will be supporting it if it is to allow that situation to happen. I really wanted him to be able to testify, actually. So, thank you. Chair Furfaro: Mr. Bynum and then Mr. Hooser. Mr. Bynum: I wonder if I could ask a question of the County Attorney. Chair Furfaro: County Attorney. COUNCIL MEETING 122 MAY 28, 2014 There being no objections, the rules were suspended. Chair Furfaro: Mr. Bynum, you have the floor. Mr. Bynum: Just for the sake of time, maybe you could bring some clarity and say if there is any substantive changes to this amendment. Mr. Trask: For the record, First Deputy County Attorney, Mauna Kea Trask. First off, just to expand a little bit on what Councilmember Yukimura said, when I first joined the County one of the first assignments was to sit in on the Board of Ethics when this came up a couple years back. I believe it started when Judy Levinthol and Mark Hubbard spoke at this Council testifying in support of food bank things or something like that. Then at that point, again, the Section 20.02(D), "No officer or employee of the County shall appear on behalf of private interests before any County board, Commission, or Agency." This was a hot topic. Some of the people who frequently speak here were speaking at Ethics. They had a position on what that meant and took a very expansive interpretation. An opinion was rendered, it was subject to some criticism and the Board of Ethics came out and said, "Appear means you cannot appear at all," but again, the concerns were raised, well then, you only have a limited number of people in the community that actually care enough to volunteer for these kinds of things and what affect does that have? So, I believe that is the intent of this amendment and my understanding is yes, it is non-substantive. It just kind of cleans it up. Mr. Bynum: Thank you for that. I am aware of those issues. I know this lack of clarity has caused some of us to resign from boards that we wanted to remain on and stay just because we did not have clarity. So, thank you for that clarification. Chair Furfaro: Mr. Hooser has the floor now. Mr. Hooser: Actually, my discussion is on the substance of the amendment of the Resolution. So, if you want to vote on the amendment, then we can discuss the regular one or do you want me to discuss it? Chair Furfaro: Start the discussion. JoAnn. Ms. Yukimura: Sorry. Mr. Hooser: So, I am going to ask a question if I may, about the Resolution itself, the substance of the main change. Existing law says or Charter says, "No officer or employee of the County shall," and then we skip to (D), "appear in behalf of private interest before any County board." So, right now, no employee of the County can appear before a Board of Commission on behalf of private interest. Is that correct? (Mr. Kagawa was noted as excused.) Mr. Trask: Correct. Mr. Hooser: So, the Planning Director could not appear before...wait, please. COUNCIL MEETING 123 MAY 28, 2014 Mr. Trask: Officer or employee. Mr. Hooser: The Public Works or something on behalf of a project? Under existing law, the Planning Director could not represent a developing interest at Public Works? Mr. Trask: Correct. You cannot...I believe so, correct, is my understanding. Mr. Hooser: Because it says...I am sorry. I did not mean to interrupt you. I am sorry. Mr. Trask: No, no. Mr. Hooser: Because it says, "No employee of the County, no officer or employee, shall appear on behalf of private interest before any Board Commission, or Agency." So, the Agency would be Public Works, the employee would be the Planning Director. Mr. Trask: And my understanding is it says "private interest." Now, my understanding is that has not been interpreted to mean your own private interest. So, I could appear in front of Public Works for my own building permits and do that, but I could not appear on behalf of someone else whether non-profit or otherwise and I am not sure if you are or not, and that is where it kind of gets murky, and that is, I think, the situation. Mr. Hooser: So, if we pass this Resolution, it appears that you could take a vacation day and represent private interest in front of the Planning Commission. Ms. Yukimura: There is another Charter provision that applies. Mr. Trask: You mean before Public Works? Mr. Hooser: It says...the existing law says, "officers and employees of the County cannot appear on behalf of private interest at any Agency, Board or Commission." So, if we change that, that means all officers and employees can appear on behalf of private interest before those same agencies. So, to me, it is a huge change and I have some concerns about that. Mr. Trask: Well, I think...for instance, you have to read everything in, they call "pari materia," which is in concert with all of the other applicable laws. So, then if you look at (E), "use your official position to secure a special benefit, privilege or exemption for himself or others." I do know if that would apply to the situation. Of course, the Planning Director cannot come and say, "I am the Planning Director," we all know that, and use that official thing. That would still apply. That is the difficulty with...as the amendment says, "as the case may be." Case by case basis. You have to look at all of the ethical considerations specifically and that is why we always advise people to get advisory opinions first. Go to the Board of Ethics, get their interpretation of it so as to protect yourself so there is no need for it to face a complaint. COUNCIL MEETING 124 MAY 28, 2014 Mr. Hooser: Just a follow-up. One (1) last one and then will pass. So, under existing law, a member of the Planning Commission, my understanding, could not represent private interest in front of Public Works, let us say? I mean, that is a member of the Planning Commission... Mr. Trask: What happened in the past was it was found that somebody on a Board or Commission could not appear before this Council on behalf of a non-profit that they were also working with. That was found to be not allowable under the Code of Ethics, and that was a new interpretation. So, I think it is hard to speculate beyond that, but it is possible, correct. Mr. Hooser: So, you can go to lower level employees, I mean, besides the Directors there could be just a person processing permits who is an architecture drafter or whatever, could take a vacation day...anyway. Mr. Trask: Yes, again, we are not looking to how...what are the loopholes to circumvent what is supposed to be an ethical County government. You do not want to...and that is kind of the difficulty with these things. You cannot...it is really difficult to write a law that addresses everything and is totally tight. Mr. Hooser: Right. Mr. Trask: So, that is why get the Ethics opinions and of course, the guiding principle should always be a high standard of ethics. If you think, well, if I do this and I do that, I can get around it. That is not really ethical thinking. Mr. Hooser: And I understand one hundred percent (100%), that we are contemplating changing the Charter to, in my opinion, open up possibly a huge loophole and that is where my concerns are, but thank you, Chair. Chair Furfaro: JoAnn. Ms. Yukimura: I think Councilmember Hooser has some legitimate concerns and we do not want to do anything unintentionally. There are other provisions that do, because I think it would be wrong for a Planning Director say, to have a private business here he represents people in front of Public Works. There is an outside employment policy that every employee fills out that is submitted to Ethics for approval or disapproval, that is one (1) thing, and then there is two (2) things in the present Code which says, "No officer or employee shall solicit, except, receive, directly or indirectly any gift under circumstance in which it can be reasonably inferred that the gift is intended to influence him." That is not exactly. Mr. Trask: Also...oh, I am sorry. Ms. Yukimura: Then there is one that says, "Any elected or appointed officer or employee who possesses or requires such interest as might reasonably tend to create a conflict with his duties or authorities shall make full disclosure to his appointing authority to the Council or to the Board or Commission." So, there are those controls, but we could consider other controls if there is a specific suggestion. COUNCIL MEETING 125 MAY 28, 2014 Mr. Trask: Also, too, if you look at the Kaua`i County Code, there is specific interpretations under Title III. There is an Ordinance Code of Ethics that goes further and further, maybe not interprets, but implements these Charter intents. So, that is also that you would look at, what the Ordinance is saying, not just the Charter. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura: So, I think we definitely want to exclude those cases where someone who is an appointee on say the Cost Control Commission cannot come before the County Council to speak for the Food Bank or something like that because there is not real conflict of interest. I think this is trying to cover places that there is a risk or there is an inherent conflict of interest. So, that is what we were trying to cure here. If it is not...if this needs more work we can defer it. I think we still have time. Chair Furfaro: Why do we not defer it if we can for...to revisit... Ms. Yukimura: For further look? Chair Furfaro: Yes, and in the meantime, let me give the floor to Mr. Rapozo. Mr. Rapozo: If we are going to defer it, then I will hold my question until then. Chair Furfaro: Okay, very good point. Ms. Yukimura: Or talk to me so we can consider it during the deferral period. Mr. Rapozo: Well, I just want to know, I think it goes back to Mr. Hooser's earlier question or do we even need it? I believe this all came about because of Jonathan Chun while he was on the Commission, Planning Commission testifying on behalf of his private clients because he is an attorney, so his clients, testifying at Council Meetings for the zoning permits and so forth. I believe that is where the issue came up and it was to prevent members of the Planning Commission, the Planning Commission that could participate in the zoning permit that may be inferred or construed as a conflict. So, I believe that was the intent, not for employee so much, but for Commissioners or more for the attorneys or architects that sit on these Boards and Commissions that could generate business from the outside. That is not proper from them to use, being that they are on a County Commission, their relationship with the County and then coming up here and testifying or representing a private interest for compensation. I think that was it, but again, that is just my recollection and... Chair Furfaro: So, maybe we should plan to defer this so we can get some clarity. Ms. Yukimura: Okay. Chair Furfaro: Mr. Hooser, go ahead. COUNCIL MEETING 126 MAY 28, 2014 Mr. Hooser: I support a deferral and since we are talking about it, I know it is late though, but if the purpose is primarily about people coming before the Council representing their own interest then we certainly do not want to take away people's First Amendment rights and we could perhaps narrowly make it where they can come before the Council and talk about things, but I am troubled by them being able to go to other agencies and for money. So, in the case of Kaua`i Coffee, for example, defending his employees interests and testifying in the hearing, maybe that is okay, but going again, to other agencies on behalf and getting paid for it as part of your profession is not. I am sure Councilmember Yukimura has heard the concerns and I will try and think about other options also. Thank you. Chair Furfaro: So, we have three (3) members that are interested in a deferral. So, if we are going to defer...go ahead, Mr. Bynum. Mr. Bynum: Just really quickly. I mean, I am in support of the deferral, but the issue that I remember was Mark Hubbard and others coming here to say Kaua`i Planning Action & Alliance (KPAA) is a good place because they were on the board, but they were on the Ethics Commission or something and you cannot do that. It is like, why not? So, I want to be really cautions, but I think it is an issue that we need to clarify. If we do not get good people to work or even Councilmembers cannot serve on board for these reasons, it is problematic. So, hopefully we come up with a solution in the end. Thank you. Chair Furfaro: It is. I mean, I have had to resign Habitat, nine (9) years, I had to resign Salvation Army seven (7) years. It is just tough. Ms. Yukimura: Yes... Chair Furfaro: So, I am looking for something that we could defer here then for clarity. Go ahead, JoAnn. Ms. Yukimura: Yes, I mean, to prohibit people where these is no actual conflict of interest does not make sense at all where they are volunteering and we need good people, but if there is potential conflict of interest, we should ferret that out and figure it out. Ms. Yukimura moved to defer Resolution No. 2014-22, seconded by Mr. Bynum. The motion to defer Resolution No. 2014-22 was then put, and carried by a vote of 6:0:1 (Mr. Kagawa was excused). Chair Furfaro: 6:0. Let the record show that Mr. Kagawa had an excuse letter to leave at 6:00 p.m. Resolution No. 2014-33 — RESOLUTION ENCOURAGING THE ROLE OF ALTERNATIVE DISPUTE RESOLUTION METHODS FOR CONFLICT PREVENTION IN THE COUNTY OF KAUAI: Mr. Rapozo moved to adopt Resolution No. 2014-33, seconded by Mr. Bynum. Chair Furfaro: I will give Vice Chair Chock the floor. COUNCIL MEETING 127 MAY 28, 2014 Mr. Chock: Thank you, Chair. I just wanted to maybe take a moment for cause and intent and explain the Resolution as we have worked on it. In light of the lawsuits that we have been experiencing internally and externally is what instigated this look. So, the intention here is to deter the potential for those lawsuits in the future. I want to make clear that this does not take away the legal process from any constituent, but I believe that issues become more difficult the potential there for more contention is more prevalent and we need to take a more proactive approach. So, this...I have been working with the Department of Personnel. We have had our County Attorney take a look at it and then intent would be to look at establishing more...a stronger look within our Personnel Department perhaps within the orientations of new hires and training, ongoing training, as an option for alternative dispute resolution. I think it is ironic as we have had a day of talking about conflict. The other entity that I did vet this with was with our union representative, Gerald Ako, Division Chief. He did see some benefit as to maybe segment some of the conflicts as opposed to grievances that may come up in our Departments. So, that is the content of it. I am really open to unfolding it more from our colleagues here and seeing if we can strengthen it. Thank you. Chair Furfaro: Comments? JoAnn, your hand is up. Ms. Yukimura: Thank you. I am in full support of this. I think we need to explore alternative dispute resolution methods because the present methods are not working very well and are terribly expensive. I also want to say that there is a great potential for alternative dispute resolution as a method to create good legislation, bringing people together with different perspectives. We tied that with the Vacation Rental Bill when we first started working on it. In fact, the Chair was part of the roundtable... Chair Furfaro: That is right. I was and I had hair then. Ms. Yukimura: ...initially, and even the Feral Cats Task Force and even the Joint Fact Finding. These are all variety of ways of alternative conflict resolution, basically. So, I appreciate that Councilmember Chock has introduced this and I think it would be a great policy statement from the Council. Chair Furfaro: Further discussion? If not, we will go ahead and do a roll call on this. This is first reading, right? Ms. Yukimura: No. Mr. Bynum: No, this is... Ms. Fountain-Tanigawa: Just one (1) reading. Chair Furfaro: Okay. Roll call. The motion to adopt Resolution No. 2014-33 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Kagawa TOTAL— 1, COUNCIL MEETING 128 MAY 28, 2014 RECUSED & NOT VOTING: None TOTAL — 0. Chair Furfaro: 6:0. Thank you. Next item. Resolution No. 2014-34 — RESOLUTION AMENDING RESOLUTION NO. 2013-57, DRAFT 1, ESTABLISHING AN AFFORDABLE HOUSING ADVISORY COMMITTEE: Ms. Yukimura moved to adopt Resolution No. 2014-34, seconded by Mr. Bynum. Chair Furfaro: JoAnn, would you like the floor? Ms. Yukimura: Yes. Thank you. This is necessary because our Affordable Housing Advisory Committee has not finished its work and we need more time, and our membership has changed for a variety of reasons. Sean Mahoney, for example, was appointed to the Planning Commission and can no longer serve in the capacity. I am sorry to report Mattie Yoshioka is no longer with us. So, we have updated the list. I am happy to report that our Housing Director or his representative will also be on now. So, we are basically up updating our status and giving ourselves greater time to complete our work. Chair Furfaro: Okay. Mr. Bynum. Mr. Bynum: I want to take this opportunity to apologize to Councilmember Yukimura and this entire Committee because I agreed to sit on this subcommittee fully intending to be an active participant and in reality, I attended only the first meeting. That is my loss and I just want to acknowledge that, but I did not fulfill that commitment. I apologize. It was because of overwhelming schedule and some physical issues, but if you could convey that to the Committee at their next meeting, I would appreciate it. Ms. Yukimura: Surely, we can do that and there is one (1) opening for another Councilmember. So, whoever might be interested, including yourself, if you are, please let me know. Chair Furfaro: Okay. We had two (2) members on this Committee and so the door is still open, right? Ms. Yukimura: Yes, and we understand that there were many challenges in these last few months. Chair Furfaro: So, we are going to approve this, and this will actually require a roll call vote. The motion to adopt Resolution No. 2014-34 was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Rapozo, COUNCIL MEETING 129 MAY 28, 2014 Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Kagawa TOTAL— 1, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Six (6) ayes, one (1) excused. The next tiem would be, we have two (2) Executive Session items. The first one, ES-722, we need to defer in open session. (Mr. Bynum was noted as recused.) EXECUTIVE SESSIONS: ES-722 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4), and (8) and Kauai County Charter Section 3.07(e), the purpose of this Executive Session is to provide the Council with a briefing concerning the coverage provided by the County's insurance policy with Everest National Insurance company for attorneys' fees arising in connection with the lawsuit Tim Bynum vs. County of Kaua`i, et al., Civil No. CV12-00523 JMS-RLP (United States 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. Mr. Rapozo moved to defer ES-722 in open session, seconded by Mr. Chock. Chair Furfaro: I have a second, moved to defer. No discussion on a deferral. The motion to defer ES-722 in open session was then put, and carried by a vote of 6:0:1:1 (Mr. Kagawa was excused;Mr. Bynum was recused). (Mr. Bynum was noted as present.) Chair Furfaro: Next item, please. Ms. Fountain-Tanigawa: The next item is ES-730, which needs to be read by the County Attorney. There being no objections, the rules were suspended. Mr. Trask: Aloha. For the record, First Deputy County Attorney, Mauna Kea Trask. This is for ES-730. ES-730 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 Special Counsel's continued representation of Henry Barriga and Sherwin Perez in Lvnell Tokuda, et al. vs. Chris Calio, et al., Civil No. CV13-00202 DKW-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. COUNCIL MEETING 130 MAY 28, 2014 Mr. Trask: This was deferred from the May 14, 2014 meeting. Chair Furfaro: Let me ask you, Counselor, did we not get briefed on this? Mr. Trask: We did and there were some concerns. I think it is better discussed in Executive Session. I can refresh your recollection then. Chair Furfaro: Well, let me see if there is any questions to go into Executive Session. If I recall, this was a request for some additional funds? Mr. Trask: Correct, and the tenant communication is C 2014-152, page, as for me, it is 307. Chair Furfaro: Okay, so let me ask members if would like to go into Executive Season or would you want to move from the last briefing on the approval of this request for funds? I am open to whatever you want to do. Mr. Rapozo: Mr. Chair. Chair Furfaro: Yes. Mr. Rapozo: I believe I requested the deferral because of some concerns on the Special Counsel that was hired. I guess I could use the time if...it is probably better in Executive Session. Chair Furfaro: Okay, fair enough. Ms. Yukimura: Right. Chair Furfaro: I just...I said that looks very familiar. So, we will go into Executive Session and you have read the item for us. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Rapozo moved to convene in Executive Session for ES-730, seconded by Mr. Chock. Chair Furfaro: I have a motion. I have a second. It has been my practice to do a roll call vote to go into Executive Session. Roll call vote, please. The motion to convene in Executive Session for ES-730 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Bynum, Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL— 6, AGAINST EXECUTIVE SESSION: None TOTAL — 0, EXCUSED & NOT VOTING: Kagawa TOTAL — 1, COUNCIL MEETING 131 MAY 28, 2014 RECUSED & NOT VOTING: None TOTAL— 0. Ms. Fountain-Tanigawa: Six (6) ayes. Chair Furfaro: Okay, let us move right inside. Hello Patsy. There being no objections, the Council recessed at 6:16 p.m. to convene in Executive Session. The meeting was called back to order at 6:47 p.m., and proceeded as follows: (Mr. Bynum was noted as excused). Chair Furfaro: Okay, we are back from Executive Session. We have one (1) item on the rest of the night's agenda. I believe it is a request from the County Attorney for some moneys. Ms. Fountain-Tanigawa: This is on... Chair Furfaro: I would like to read that and then get it modified. Ms. Fountain-Tanigawa: This is on page 3 of the Councils agenda. COMMUNICATION: C 2014-152 Communication (05/02/2014) from the County Attorney, requesting authorization to expend funds up to $50,000 for Special Counsel's continued services to represent Henry Barriga and Sherwin Perez in Lvnell Tokuda, et al. vs. Chris Calio, et al., Civil No. CV13-00202 DKW-BMK (U.S. District Court), and related matters: Mr. Chock moved to approve C 2014-152, seconded by Mr. Rapozo. Mr. Rapozo moved to amend the amount requested from fifty thousand dollars ($50,000) up to ten thousand dollars ($10,000), seconded by Mr. Chock. Chair Furfaro: Thank you. So, we had a motion to approve and a second by Mr. Rapozo. Do we have a motion then to amend fifty thousand dollars ($50,000) to fifteen thousand dollars ($15,000)? Ms. Yukimura: We just did. Chair Furfaro: Was the correct? To ten thousand dollars ($10,000). Mr. Rapozo: Fifteen thousand dollars ($15,000) to ten thousand dollars ($10,000). Chair Furfaro: Yes, I am sorry. COUNCIL MEETING 132 MAY 28, 2014 Mr. Rapozo: I just made a motion to amend. Chair Furfaro: I am sorry. I am hearing fifty thousand dollars ($50,000) and fifteen thousand dollars ($15,000). Mr. Rapozo: Okay, fifteen thousand dollars ($15,000). Oh, I mean, I am sorry, ten thousand dollars ($10,000). Ms. Yukimura: No... Mr. Rapozo: The amount on the agenda is... Chair Furfaro: From fifty thousand dollars ($50,000)? Mr. Rapozo: Thank God it was off. The main motion was for fifteen thousand dollars ($15,000) by Mr. Chock, right? Ms. Yukimura: Fifty thousand dollars ($50,000). Mr. Rapozo: Oh, fifty thousand dollars ($50,000)? Chair Furfaro: Fifty thousand dollars ($50,000). Mr. Rapozo: Oh. Chair Furfaro: So, we are going down. Mr. Rapozo: And we are amending it to ten thousand dollars ($10,000)? Ms. Fountain-Tanigawa: Ten thousand dollars ($10,000). Chair Furfaro: Would you consider an amendment that was at fifteen thousand dollars ($15,000) since we are not sure that the rolling tab was? Mr. Rapozo: Sure. Chair Furfaro: Thank you very much, Mr. Rapozo. Mr. Rapozo moved to amend the motion to expend funds up to $10,000, to expend fund up to $15,000, seconded by Ms. Yukimura. Chair Furfaro: So, we have the fifty thousand dollars ($50,000) amended to fifteen thousand dollars ($15,000). Father discussion? Mr. Hooser? Okay, and perhaps we will see a credit memorandum on this as I discussed with Mr. Trask. Okay, let us do a roll call vote, please. COUNCIL MEETING 133 MAY 28, 2014 The motion to amend the amount requested from fifty thousand dollars ($50,000) up to fifteen thousand dollars ($15,000) was then put, and carried by the following vote: FOR AMENDMENT: Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST AMENDMENT: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Kagawa TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. The motion to approve C 2014-152 as amended to expend funds up to fifteen thousand dollars ($15,000) was then put, and carried by the following vote: FOR APPROVAL: Chock, Hooser, Rapozo, Yukimura, Furfaro TOTAL — 5, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Kagawa TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Chair Furfaro: And did you record all of the votes because I saw everybody except JoAnn and I had their microphones off. You got it? Very good. Okay, this ends our business for today. Thank you, everyone. It is ten (10) till 7:00 p.m., a little last our time for the staff. Thank you very much. We are complete. ADJOURNMENT. There being no further business, the Council Meeting adjourned at 6:50 p.m. Resp: bmitted, I , , , JAD 'W. •UNTAIN-TANIGAWA DepurCounty Clerk :aa Attachment 1 (May 28, 2014) FLOOR AMENDMENT Resolution No. 2014-22, Relating To A Charter Amendment Relating To The Code Of Ethics Introduced by: JOANN A. YUKIMURA Amend Resolution No. 2014-22 by amending Section 20.02 to read as follows: "Section 20.02. No officer or employee of the county shall: A. Solicit, accept or receive, directly or indirectly, any gift, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise or in any other form, under circumstances in which it can reasonably be inferred that the gift is intended to influence him in the performance of his official duties or is intended as a reward for any official action on his part. B. Disclose information which, by law or practice, is not available to the public and which he acquires in the course of his official duties or use such information for his personal gain or for the benefit of anyone. C. Acquire financial interest in business enterprises which he may be directly involved in official action to be taken by him. D. Appear on behalf of private interests before any county board, commission, or agency on which the officer or employee sits or is [employed.] employed, as the case may be. E. Use his official position to secure a special benefit, privilege or exemption for himself or others. F. Use county property for other than public activity or purpose." (Material to be deleted is bracketed. New material to be added is underscored.) (V:\AMENDMENTS\2014\Resolution No. 2014-22\JY-A0-lc.doc