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HomeMy WebLinkAbout06/04/2014 Special Council minutes (ES-734) SPECIAL COUNCIL MEETING JUNE 4, 2014 The Special Council Meeting of the Council of the County of Kaua`i was called to order by Council Vice Chair Mason K. Chock, Sr. at the Council Chambers, 4396 Rice Street, Room 201, Lihu`e, Kauai, on Wednesday, June 4, 2014 at 1:52 p.m., after which the following members answered the call of the roll: Honorable Tim Bynum (present at 1:56p.m.) Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser Honorable Ross Kagawa Honorable Mel Rapozo Honorable JoAnn A. Yukimura Excused: Honorable Jay Furfaro Mr. Chock: I think Councilmember Bynum will be in shortly. 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. Bynum was not present and Chair Furfaro was excused). Mr. Chock: Clerk, may you please read the comment portion? public PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). Mr. Chock: Thank you. Would anyone like to take advantage of public comment at this time? You can either speak now or speak after we read the Executive Session item. Seeing none, can we call our County Attorney up to read the Executive Session item? There being no one to provide public comment, the meeting proceeded as follows: There being no objections, the rules were suspended. SPECIAL COUNCIL MEETING 2 JUNE 4, 2014 MONA W. CLARK, Deputy County Attorney: Mona Clark, Deputy County Attorney. I will read the Executive Session item. EXECUTIVE SESSION: ES-734 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4 and 92-5(a)(4), and Kaua`i County Charter Section 3.07(e), the Office of the County Attorney, on behalf of the Council, requests an Executive Session with the Council, to provide the Council with a briefing regarding the Charter provisions related to the processing of petitions for charter amendments, initiatives and referendums and the roles of County officers and the County Council and related matters. This briefing and consultation involves the consideration of the powers, duties, privileges, immunities and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Chock: Thank you, Mona. The motion will be to go into Executive Session, but at this time, I will suspend the rules... Mr. Rapozo: I have a question for the Deputy County Attorney. Mr. Chock: Okay. Mr. Rapozo: Thank you for being here today, Mona. Last week, we had extensive discussion on this matter and I suggested that based on the Charter language, the Council's involvement based on the Charter is really to receive the petition that was submitted by the community group, which we did last week. By the motion to receive, it was officially filed. In the discussion, I suggested that at that point, the Council's responsibility... this body's responsibility ended and that in fact at that point, the petition with the signatures goes over to the County Clerk and the County Clerk will determine rather or not they have the valid number of signatures, and from that point on, the Council was not a part of it. I suggested last week and I asked this of the Chair that the request for the County Attorney's opinion come from the County Clerk's Office and not the County Council's because that is how I read the Charter, that in fact, our ministerial function was to receive it and get it officially filed and at that point, the County Clerk's Office would take over. I was kind of surprised to see the special posting for the Special Council Meeting because that is exactly opposite from what I thought we agreed on last week. I believe that the County Council should not participate at this point in determining whether or not it is a valid petition or if it is valid language and once last week past, it becomes the duty of the County Clerk. That is a question. Is that accurate? Ms. Clark: It was my understanding that is what the Executive Session was to discuss and that is why we were going to have this meeting. Mr. Rapozo: I guess for me, I think the privilege or the confidentiality of the opinion should be between the County Attorney's Office and the County Clerk, and not this body. Again, let me know if I am misreading the Charter, but it is just one component that I think is number one, not necessary because I do not believe this Council— even if this Council felt as I do, that it is an initiative and not a Charter amendment. I do not believe the Charter gives us the SPECIAL COUNCIL MEETING 3 JUNE 4, 2014 authority to turn it back to the petitioners. I guess we could have the discussion in Executive Session. I would just rather not be privy to that discussion because I think the privilege should be between your Office and the County Clerk. Ms. Clark: I wrote an opinion that is addressed to this body. That is what the Executive Session is about. Mr. Rapozo: The request for the opinion did not come from the County Clerk; it came from this body? Ms. Clark: That is correct. Mr. Rapozo: Okay. Thank you. Mr. Chock: Councilmember Yukimura. Ms. Yukimura: Actually, I was the one who asked for an opinion far before last week's meeting just because I thought we needed to understand the issues. I think when the issue comes before the Council, it is the rule that now the opinion is owned by the Council once the issue becomes a Council issue. I am thinking that we just need to know and understand the issues as public officials who do have a role in whether things go on the Charter or not or go on the ballot or not. This is just an informative session as I understand it. It is not necessarily because we are going to make a decision, but we do not even know until we are briefed who makes the decision. I think that is one of the things that we are going to be advised by the County Attorney. Is it not? Ms. Clark: That is what the Executive Session is on. Ms. Yukimura: Yes. It is about what is the law based on the Charter that we need to know? Who is the one that exercises this decision-making? What are the parameters for decision-making? I think those are all things that we need to understand. Mr. Chock: Councilmember Rapozo. Mr. Rapozo: Is it this body's role to determine what goes on the ballot? That is not an Executive Session question. My goodness— this is a Charter question... an interpretation of the Charter. It is real simple. Does this body determine what goes on the ballot as far as the charter amendment? Ms. Clark: I think this is connected to the opinion that you are getting and so I think it makes sense to go into Executive Session. Mr. Rapozo: Mona, you did not answer my body have a say in what goes on the ballot as a charter amendmenstion. Does t? Ms. Clark: That is exactly what is on the Executive Session—the roles of this body... Mr. Rapozo: I am not going into Executive Session for that because that is not an Executive Session matter in my opinion. That is a duty and an authority of this body. It is like every other thing in the Charter that says what we can and cannot do. I am not going to go into Executive Session for that. SPECIAL COUNCIL MEETING 4 JUNE 4, 2014 The other thing is that again, that— I do not want to repeat myself. I have already said what I said, but I am not going to go in there and tell us whether or not we have the Charter authority. I think that is something the public should hear. That simply is not... there is no liability to that question. It is a real simple question: is that our authority or not? If there are legal issues, I can see that, but this is really "what is our duty?" Is it like our duty to set property tax rates? We do not go into Executive Session for that. That is "yes" or "no." Ms. Clark: The County has a role. The County Council has a role. Mr. Rapozo: I guess I cannot find that in the Charter. I really cannot and I have read it several times. Mr. Chock: This discussion will go on, but I think what is on the agenda is this Executive Session. It is clear to me that we need to get clarity somehow, so the suggestion would be that we move in that direction. I understand the concerns here that are being implied. This is something that should have happened in preparation for this and I am going to continue a discussion as other Councilmember Hooser,er, Councilmembk m er Yukimura, and thgoing n Councilmember Bynum. Mr. Hooser: Thank you. I also have some concerns about going into Executive Session. Ms. Clark: Could I respond just briefly? Mr. Hooser: Sure. Ms. Clark: Once you get the opinion, you can do whatever you want with it. It is your opinion and you can disclose it. There is no intention of our Office to do anything except observe the privilege, which belongs to this body. Mr. Hooser: I understand. Thank you for that. I was expecting that we would go into Executive Session to discuss the merits of what is bein discuss ng o the whether intricacies n is an the initiative language charter of that, m that, not the fundamental responsibilities of the Council, the Clerk, and the public. So in that respect, I tend to agree with Councilmember Rapozo. I have a follow-up question because I was looking at the Charter, as I do frequently and as we all do, I hope. There is a section in there that I believe it establishes the electrical co-op, Kauai Island Utility Cooperative (KIUC). It is page after page, after page, of prescriptive directions on the commission on how it is structured and it does not look like a charter amendment either. It looks like an ordinance. The word we have used a lot around here is whether it is suitable or whether it is appropriate. I think the fundamental question is it illegal to have something that looks like an ordinance be in the Charter and I do not know if that is the case or not. Just because we might that it is more appropriate here or there or whether it is actually illegal to put one in one place and not the other if it is approved by the voters. Ms. Clark: Article 8 of the Constitution goes to what authority is being granted as the County and what should be in the Charter. It says SPECIAL COUNCIL MEETING 5 JUNE 4, 2014 that the Charter is to be directed towards self-governance, so your relationships with third parties are outside of self-governance. Mr. Hooser: Okay. The electrical co-op in the Charter seems like way outside... Mr. Chock: I am sorry. I am going to have to interrupt. I know that we are right in the middle of discussion, but we need a tape change at this moment. We are going to have to take five (5) minutes and we can come back to this discussion. Mr. Hooser: Sure. This will give us time to clear our heads. Mr. Chock: Thank you. We are on a recess for five (5) minutes. Thank you. There being no objections, the meeting recessed at 2:05 p.m. The meeting reconvened at 2:11 p.m., and proceeded as follows: Mr. Chock: We are back from our recess. There are some very good questions coming up in terms of Executive Session and our roles. I think that we left off with Councilmember Hooser having the floor on trying to get that information together and the questions with our County Attorney. They need a little bit more time on that, so I would like to move us to public testimony if possible. We have a list of five (5) speakers. Can we call up the first registered speaker? RICKY WATANABE, County Clerk: Okay. The first speaker is Joan Porter, followed by Lora Lynne. JOAN PORTER: Good afternoon. My name is Joan Porter. I am here on behalf of Kaua`i Rising and I am part of the committee that submitted the petition for a charter amendment. I just want to reiterate what Bob Yuhnke, our attorney, stated last Wednesday that we really need some guidance and some feedback about how this is going to be handled because depending upon what is decided could make a difference time wise and we could be out of time. I just want to bring that forward and reiterate that, that is a great concern of ours and the four thousand (4,000) people who signed the petition because they believe in what it said. The other thing that I want to bring forth is that we made a request of the County Clerk's Office to have a member of the committee or a representative be present to witness the checking of signatures. We were denied that on the basis of proprietary information that the County has that is not public. When I look at all of the information that we collected on the petition, it is the last four (4) digits of the social security number, which is not mandatory we were told by the County Clerk and the last name, first name, living address... home address, I suppose, is the right way to say that, and then the signature. That is already public. We already have access to that, so that was a question that I just wanted to bring forth that we would like to witness that and we would sit quietly and not cause any problems. wa just tto want to be there for that say, other than thank you all so much because I can see that there is a lot of deliberation going on as to where are we, what are we doing, and what is the right thing to do by law. SPECIAL COUNCIL MEETING 6 JUNE 4, 2014 Mr. Chock: Thank you for your testimony. I know you have some questions. I think our County Attorney might be able to help you with some of those in terms of the process of which should be made confidential from the Elections side. If you have some other questions, perhaps you can communicate with her on that instead of here publically. Ms. Porter: Okay. Mr. Chock: You have a question from Councilmember Kagawa. Mr. Kagawa: Thank you. You helped to work on the Charter amendment? Ms. Porter: I did. Mr. Kagawa: Has any other County or municipality pass this type of legislation anywhere in the Country? Ms. Porter: Not that I know of. Mr. Kagawa: So Kaua`i would be the first? Ms. Porter: Yes. Mr. Kagawa: I guess my response to that is that is why it may be taking a little longer because it is abnormal and we need to do a good job and not bring in lawsuits if we can prevent it. Ms. Porter: I absolutely understand that. Mr. Kagawa: Thank you. Ms. Porter: Thank you all. Mr. Chock: Next speaker, please. Mr. Watanabe: The next speaker is Lora Lynne, followed by Wendell Kabutan. LORA LYNNE: My name is Lora Lynne. I am also a member of the committee around the Charter amendment. I feel called to speak today to all of you about what it is like for me to feel preemption. I have spent a good deal of time in the last couple of months writing letters, following legislation, and supporting the idea of you not being preempted and now I understand something about that. I know that as I have done talking to many people, and registering new voters nehowlmany of them this are coming from a place where they have felt preempted in many ways in their life. This is a huge issue on this island where what is going on feels so immense where these bullies are present in our midst and really showing us a way that feels powerless and a way that feels hopeless. I am very grateful to all of you for being heroes in this, but what I have recognized is that we are all heroes. We are all together in this. You are part of my tribe. I carried those petitions and we brought them in SPECIAL COUNCIL MEETING 7 JUNE 4, 2014 and these people do not want to be preempted. I am still getting calls to this day, every day, and E-mails about how these people do not want to be preempted. It is not just these genetically modified organisms (GMO) companies, which is "God move over"; it is many, many ways and I want us all to stand together and come to the place where we can actually create what we really want on this island, where it is safe, where even those of us who feel shaky or do not know all the machinations of government or the law are able to come forth and bring what we believe in, which is a democratic process that is outside of what has occurred over the last decades. Mr. Chock: That is your three (3) minutes. If you could summarize quickly, that would be great. Ms. Lynne: So that is what I wanted. I wanted to bring my heart and bring my mind. I can talk about many things or understand some of this from my mind, but there is a heart piece here and that is what I bring today. Thank you. Mr. Chock: Lora, Councilmember Bynum has a question for you. Mr. Bynum: I do not think we met. I wanted to say hello. You are one of the petitioners? You are one on the committee that is identified? Ms. Lynne: Yes. Mr. Bynum: You are aware where the Charter gives us clear guidance that the County Attorney should or can give an opinion to the petitioners and give you an opportunity to do whatever you choose with that opinion, just like she said of the opinions that we get. This body can do whatever we choose. You can agree with it and make changes or not. You are aware of that process, which is clear in the Charter. That is really my only question for now. Thank you. Ms. Lynne: Yes. Mr. Kagawa: I am just curious... I have a question. For the people that you have witnessed signing up on the petition, are they signing after reading the entire— how much pages is that? Twenty (20) pages? Are they signing based on a brief summary from the requester saying basically in a nutshell what it is about? What would be the percentage that is actually reading all of the pages in that Charter Amendment and signing? Ms. Lynne: For most people, if they wish to read the whole Charter Amendment, what I do is I hand them a card and say "go to the website and read the whole Charter Amendment." I also open it up and show it to them and tell them about it. I offered to hand them a summary of it if that is what they want to do. People go and read it on their own rather than stand in a market place, street corner, or wherever and read the whole thing. Mr. Kagawa: The reason I say that is because most Charter amendments are very brief. "Does the County want a new Parks Department instead of a Parks Division?" This one is twenty (20) pages long or so, so I would think that if you are going to get a signature, you want to make sure that they know in detail all that entails. They may agree with ninety-five percent (95%). SPECIAL COUNCIL MEETING 8 JUNE 4, 2014 They may not agree with five percent (5%). Would that change their mind to sign? If they are just getting a brief synopsis in a nutshell what it is about and they sign, that is one thing, but if they are not getting the— so I am just wondering how much of the people that you have witnessed that have actually read the whole Charter Amendment. Ms. Lynne: I cannot give you a percentage about that. Mr. Kagawa: Okay. Thank you. Mr. Chock: Thank you. Next speaker please. Mr. Watanabe: The next speaker is Wendell Kabutan, followed by Anne Punohu. WENDELL KABUTAN: Hello. My name is Wendell Kabutan. I am speaking for myself. I am concerned about the democratic process where the people have the ultimate authority and the ultimate power in our Constitution, the United States Constitution. We, the people, have the power and the authority ultimately. It is not in a governmental body. It is not in a group of representatives, people who represent the people through election process. We, the people, have the ultimate say and when the amendment process, which is the only time that the people have an actual voice, is being derailed, questioned, and incredible requirements are being made on we, the people. We do not have lawyers. We do not have billions of dollars like the seed companies. When and where do we get to say and express how we feel, what we want, and the changes that we want to make? The length of the pages— big deal. The thing of it is that there is content, purpose, and there is a reason why it had to be. Is everybody going to understand the legalities? No. Did everybody want to read it? They had an opportunity to read it, but by their own free will choice, they signed. You cannot question a person's free will signature and say that you have to read the whole thing, understand all of the legalities, and know and understand every issue in the Amendment when you yourself do not understand it. If they choose based on what they understand, then it is their right to sign. That is how the process works to me. Then it is going to evolve and there is going to be changes made, but I just like to see that the democratic process is actually respected, honored, appreciated, and that the representative government that we have will at least give the people the benefit of the doubt or a little bit of leeway because we are not financially able to come up against all of the legal challenges. That is my opinion. The County Clerk is responsible to determine whether something is an amendment or an ordinance— I do not see that. I never heard anything like that in the Charter that that is his responsibility. They do not have the money. They do not have the expertise. They have to go and hire another lawyer. By that time, this thing is over. Mr. Chock: That was your three (3) minutes. Mr. Kabutan: Anyway, that is just some of what I am concerned about. Mr. Chock: Thank you, Mr. Kabutan. I think we have questions. I saw a hand come up from Councilmember Yukimura. If not, I will move to Councilmember Rapozo. Ms. Yukimura: Go ahead. SPECIAL COUNCIL MEETING 9 JUNE 4, 2014 Mr. Rapozo: Thank you, Mr. Chock. Thank you for being here today, Wendell. You said that you felt like the process was being derailed? Mr. Kabutan: Yes. Mr. Rapozo: In what way? Mr. Kabutan: All of these questions— there is no firm law that says you can do what you are doing, to me. I am not a lawyer, but just a basic understanding of the Charter procedures. The Charter amendment process does not give the County Council, the County Clerk, or the County Attorney the right to derail this whole thing by throwing up special meetings and implying that the Clerk has the responsibility or implying this and that. If it is not stated, do not imply. Mr. Rapozo: Have you read the Charter? Mr. Kabutan: Yes. Mr. Rapozo: I do not understand what part— the petition came before this body last week. Mr. Kabutan: Yes. Mr. Rapozo: There were no deferrals. It got filed; it got received. There was no derailment. Mr. Kabutan: Maybe that is the wrong word. Mr. Rapozo: That is why I want to make sure because I am here, I am a human being just like you, and I am thinking... I believe it is an initiative, but I did not derail... we did not. We moved it on to where it needed to go. Mr. Kabutan: Yes, wrong word. Mr. Rapozo: That is all. We get offended too. We are not supposed to though. Mr. Kabutan: I do not know what the right terminology. Mr. Rapozo: I think it is important for the public to understand that we, by law, have to comply with the Charter, whether we agree with the Charter or not. There is a specific set of requirements for a Charter amendment that has to be followed. That is why I believe that it is not for this body to determine if it is an initiative or a Charter amendment. It moves on to the Clerk. I do not see the derailment and I appreciate you clarifying that. Mr. Kabutan: I agree with that. I used the wrong word. Mr. Rapozo: That is fine. Thank you. Mr. Chock: Any further questions? SPECIAL COUNCIL MEETING 10 JUNE 4, 2014 Mr. Kagawa: Wendell, I just wanted to clarify. I did not say that signatures should not count if you do not read the whole thing. I was just trying to find out— it is just a simple question of how much people that she signed up actually read the documents. It is not to say that I be the judge and jury whether a person's signature is good or not. It is an eighteen (18) to twenty (20) page document that is very complex, like you said, and I am just wondering if in this very abnormal Charter Amendment submitted, how much people that you signed up actually read it out of the four thousand (4,000). If there is no answer, then I agree. I am not saying that the signatures are not valid. If people signed it, they signed it, and that counts. I was just wondering how much people understand this complex Charter Amendment. I do not know if there is a good answer, but I was asking her if she had a number so I could kind of use that percentage and say maybe half of them actually read the whole document and know what they signed and understood it because it is very complex. I like some parts and I do not like a lot of parts too. Mr. Kabutan: For me, I printed up maybe fifty (50) copies of the Charter Amendment and handed them all out and gave them to the business leaders and various people. Whether they read it or did not read it, I do not know. Some people signed after and some did not sign. That is the way it goes. But I did hand out copies and summaries prior to even approaching them for their signatures. That was my way. I do not know how everybody else did it. Mr. Kagawa: Thank you. Mr. Chock: Next speaker. Mr. Watanabe: The next speaker is Anne Punohu, followed by Felicia Cowden. ANNE PUNOHU: Aloha. My name is Anne Punohu. I agree with you. Ross, your questioning of asking did people— I am one of the signers. I am one of the people who signed it. I read a summary. I was coming out of Hoku Foods. I talked story. I read the summary that was there. I got the download to the link and I actually signed it there before I read the whole thing. I signed it as properly as I could, went home, checked it out, and I did read it. I am not going to say that I understood it all because I am not a genius and I am not an attorney, but I got the gist of it. I have been hearing though on social media that people have been running down this initiative, questioning the people who signed it, saying people did not read it, and questioning the validity of the signatures that were put on there. This is, I think, what Uncle Wendell was talking about, is the feeling that we are having as those of us who support this that we are getting special scrutiny. I think that you saying this is something new— of course it is something new, but this is what Kauai people do. We start the cart. We do not wait for somebody else to give us a cart and a horse; we make our own carts. My opinion on the fact that this is an initiative of the people— it was brought forth by the people, the signatures are there, and it should go on the Charter as such. However, I also understand about the length of it and I understand how that can be confusing as to is it... what did Uncle say? What about Papa Furfaro say, dog or cat? However, I believe that anything brought forward by the people belongs to the vote of the people. You did though make a very valid argument about those little... it has to be condensed somehow as a Charter amendment when it hits the ballot. As I recall, when Carol Bain was doing this with the League of Women Voters, we were very good about doing a pro and a con, which I think will occur when it becomes a SPECIAL COUNCIL MEETING 11 JUNE 4, 2014 Charter amendment and is put before the people. As I recall, this entire issue from the other side of the opinion on this was that it was not put up to the vote of the people and that it was just choked through as a law. So here, we have an opportunity for it to be put through as a vote of the people and it will depend on what the voters say. As far as this opinion, I understand that the attorney is your attorney, you are the client, you will be going into Executive Session, she will be giving her opinion, and then you can come out and release it to the people and let us know at your pleasure or not. That is where I am at on this thing. I would like to see it be a Charter amendment. I trust the County Clerk. I think that all of the rules have been attempted and it is very hard to be complied with, especially as far as signatures go because it has been a real struggle. I think you guys had to go back two or three times to get more signatures. Some signatures were already thrown out and they had to go back out and get more signatures. I think that everybody has been working very hard on this. Let us just hope that it does come before the people because that is what they want. Aloha. Mr. Chock: Mahalo. Next speaker, please. Mr. Watanabe: The last registered speaker is Felicia Cowden. FELICIA COWDEN: Aloha. I am Felicia Cowden. I am not on team that wrote this Charter Amendment. I am speaking as one of the four thousand (4,000) people who did sign the petition and as somebody who did a modest effort of getting some other signatures added. First of all, I do want to say that I read it extensively, researched it, and paid a lot of attention before I got behind it. I take it very seriously and the people who signed it— when I walked around, I gave them more information than they even wanted. I will say it was a very big difference in seeing who all was willing to sign the eighteen (18) page Amendment that everybody I know who was getting signatures, they carried around with them to offer it. What I would say is that the willingness of people who were reticent on Bill No. 2491 to sign this, to me, represents blowback from the lawsuit on Ordinance No. 960. When a hard agreement was made in the County from so many people and they came up with it, and then the seed companies would not even go with this very, very simple measure. The people at that point were pretty angry because it does interrupt the will of the people and by making something to be a ballot initiative, it really then is putting it before the people and it keeps away all of what we went through last year just to get a very simple ordinance brought through. Now I have looked through this and I think that Section 33.1 and 33.2 are basically founded on both constitutions and Charter, plus the proclamation— I do not think that there should be any question of whether that is about a Charter amendment, certainly not the creation of the administrative environmental health and that could really benefit a lot of other elements and it could couple together with what is in the Ordinance No. 960 extra funding for a new position. What might be more of an ordinance is some of the elements of 33.6. I looked at 33.5 and 37.7 and those seem nonbinding and a little bit further talks about the County and the United States, but it does demonstrate that there is a broad concern about pesticide use beyond just this industry. So what I would ask is that there is a severability clause in how this is written and if that you guys, when you are in Executive Session, if there is a piece of two or little kernels in here that really are ordinances, but you identify them because last thought— the Charter petition demonstrates the profound disappointment at the public process and the political will to contain the adverse effects of the chemical industry. If you shut this down, I think the level of anger will become a ground swell. If you allow this SPECIAL COUNCIL MEETING 12 JUNE 4, 2014 initiative, there will be a fair vote and we will see what amount of the County feels what way or the other on this effort. That is my thought. Mr. Chock: Thank you, Felicia. I just want to say that this will not be determined by us. I think that is the point. We just want to make that clear. Councilmember Yukimura, do you have a question? Ms. Yukimura: Felicia, do you believe that we are a Country and a County of laws? Ms. Cowden: I believe that we are, yes. Ms. Yukimura: Okay, so in accepting this petition or in putting it on the ballot, should we not follow the law? Ms. Cowden: I believe that we can work with the law and we can make it represent the will of the people. I think that there is flexibility in the law. Ms. Yukimura: No, that is not the question please. Ms. Cowden: Well, it is not a "yes" or a "no." Ms. Yukimura: "No," we should not follow the law... Ms. Cowden: We should follow the law and give it the latitude that it allows. Ms. Yukimura: Okay. That is what we are trying to determine; what the law is that governs putting a petition on the ballot? That is what we need to determine: what the law is, whether the law is being followed in the submittal of the petition, and whether the law is being followed in determining the number of signatures that are needed to initiate the process. Ms. Cowden: Well, I would say you are using flexibility in the law even in that. The vast majority of this is a Charter amendment and there are little kernels that are initiatives, so we are looking at the little splinters of the... Ms. Yukimura: Well, you cannot put something that is a bill for an ordinance onto the ballot without the number of signatures required therefore. Ms. Cowden: I understand that, so I am saying if there are a couple little pieces that remove it from being a Charter, set those aside. Mr. Chock: I think the question was posed and it was answered. Thank you. Ms. Cowden: Thank you. Mr. Chock: Did anyone else sign up to testify? Mr. Watanabe: No. SPECIAL COUNCIL MEETING 13 JUNE 4, 2014 Mr. Chock: Would anyone else from the audience like to speak to this item at this time? Mr. Watanabe: Just for the record, we have one (1) written testimony that was submitted by Walter Lewis. Mr. Chock: That is right. Thank you. That was circulated as well. We will call this meeting back to order. Before the break, Councilmember Hooser had the floor with questions for the County Attorney. Before I hand it over, I think that what I would like to say is that I think the points that are being made are really valid. I certainly want to know what we should be doing here and how it is being interpreted. I definitely do not want to lose the transparency of the democratic process that you talked about, Mr. Kabutan. I think I need to get clearer before I am willing to go into Executive Session at this point from County Attorney about what our kuleana is in this process. I will hand it over to Councilmember Hooser and ask our County Attorney to come back up. Mr. Hooser: I think you are doing a great job. It is a very difficult position, but I think you are doing a great job. Thank you. Just to get clear on the posting— this posting is about the process and it is not about the content of the proposed Charter Amendment? Ms. Clark: Right, it is the process. Mr. Hooser: So the opinion does not analyze whether or not it is a Charter amendment or an initiative? The intricacies of the pages do not address that at all. Is that correct? Ms. Clark: That is correct. Mr. Hooser: Okay. For some reason, I was thinking that was what we were going to be discussing today and would be the substance of the initiative being proposed, but we are not. I just want to make that clear for the public record. I had one question. Last week, I said several times and I want to make sure that I did not mislead the public, what was my understanding that assuming signatures are validated, sufficient for a Charter amendment, and then the petitioners have the ability to amend it if they wanted to take into consideration some of the discussion to make it stronger or improve it. Is that a correct assumption? Ms. Clark: The process is the petition designates by three to five signatories to the petition who they authorize to represent all of the people who are signatories on the petition. The people who are so designated... the County Attorney may make suggested changes to the text, restatement of the text, amendments, which can present to those three to five people and they in turn can approve such changes. Mr. Hooser: So if the County Attorney decides not to make those recommendations, can the petition committee make recommendations they feel is necessary as long as they agree on it? Or must they only deal with... Ms. Clark: Under the initiative process, the petitioners committee can make changes. SPECIAL COUNCIL MEETING 14 JUNE 4, 2014 Mr. Hooser: But in the Charter process, are they limited to the changes that you suggest? Or the County Attorney suggests, I should say? Ms. Clark: Yes. The County Attorney's Office has to propose changes. Mr. Hooser: So the only changes that can be made to the Charter Amendment are those changes recommended by the County Attorney's Office and accepted by the petition committee? Ms. Clark: Yes. Mr. Hooser: Okay. I think that is important. I misunderstood the process. I was thinking that the committee themselves could take the concerns that were expressed and amend it to make it better, but now I am hearing that the only amendments that can be made are amendments that are suggested by the County Attorney's Office and there is no guaranty... the County Attorney may not want to suggest any amendments? Ms. Clark: That is true. In initiative process, there would be a certificate of sufficiency or insufficiency essentially stating what the defects were and any initiative that was presented. At that point, the petitioners who are designated in the petition may come back and may respond to that with amendments that they come up with. Mr. looser: This is just an important thing that in dealing with a Charter amendment and it cannot be changed without... or a proposed Charter amendment cannot be changed until those changes are recommended by the County Attorney's Office? Ms. Clark: That is correct. Mr. Hooser: Okay. That is an important consideration. The document has already left our possession, if you would, and we have received it. It is in the hands of the County Clerk. That is my understanding. I find myself wondering why we are even have this discussion because we do not have an opportunity to vote on it or approve it or disapprove it. Is that not right? Is it not in the hands of the County Clerk? Ms. Clark: It is physically in the hands of the County Clerk. I do not know whether if... there are procedures for requesting reconsideration. Mr. Hooser: Okay. I have one last question. I referred to the electric power authority amendment that was made to the Charter and Councilmember Yukimura corrected me. It was not for the co-op. It was for the power authority that has been previously proposed. In looking through that, there are eight (8) or nine (9) pages and it described how to appoint directors. They actually specify how often they have to meet, what rules govern the directors, how they run their meetings, how someone is removed, powers and duties of the board, organization, and it just goes on and on about what most people would consider to be an ordinance. It is not just "there shall be established in County by ordinance shall fill in the blanks." So this is a very prescriptive Charter amendment and I believe it was voted on and passed. I doubt if anyone read it before they voted on, SPECIAL COUNCIL MEETING 15 JUNE 4, 2014 other than a brief description. I am just puzzled why this seems to be okay, but the one that is being proposed is not okay or may not be okay. Ms. Clark: I am not aware of whether there were any challenges that have been presented to that. I do not believe that there has been. Mr. Hooser: Okay. I have one more. This is the opinion, I believe, that you were scheduled to go in there. It is four (4) pages, right? Ms. Clark: That is right. Mr. Hooser: Dated June 4th? Ms. Clark: Yes. Mr. Hooser: It is my understanding that it only addresses two issues? Is that correct? Ms. Clark: That is right. Mr. Hooser: Okay. I am still wondering why we need to go into Executive Session about it since much of the discussion seems to be able to be had on the floor. Thank you. Mr. Chock: JoAnn. Ms. Yukimura: Thank you. I think we received on May 28th also an opinion from you. Is this not also part of the briefing? Ms. Clark: To the extent that it falls within the agenda item, you certainly can ask questions. Ms. Yukimura: It is about processing of the petition. Ms. Clark: Yes. Ms. Yukimura: Okay, so it is not just the one that we received today, but also the one we received at our Council Meeting. Ms. Clark: All items that would be covered by the agenda item can be discussed. Ms. Yukimura: Okay, so it is not just an opinion. It is a subject matter coverage basically. Ms. Clark: That is right. Ms. Yukimura: Okay. Thank you. On the question of the initiative, those changes that you described as being capable of being made, that happens after a petition is certified as sufficient? Ms. Clark: Actually under Section 22.06, it sets out what the procedure is. The Clerk notifies the petitioner's committee contents of the certificate. If it is sufficient, it goes one way. If the Clerk certifies a petition SPECIAL COUNCIL MEETING 16 JUNE 4, 2014 insufficient, the certificate shall show the particulars wherein in the petition is defective. A majority of petitioner's committee may elect to amend the petition certified insufficient and must so notify the Clerk. Ms. Yukimura: I read that to be mechanics of submittal, whether there was this affidavit that is required that says "I personally solicited each signature" et cetera, but does it go to the actual substance of the bill that is being proposed? Ms. Clark: I apologize for cutting you off. I did not mean to. Ms. Yukimura: That is okay. Ms. Clark: I think as far as an ordinance, you do not have the same sort of restrictions of what is going to be in an ordinance, as long as it is within the County authority. Ms. Yukimura: Okay. Thank you. Mr. Chock: Councilmember Bynum. Mr. Bynum: Good afternoon. I did not know we were going to have this extended kind of dialogue on the floor. I was going to vote to go into Executive Session. Our body asked for this and you are here at our request and this is kind of what we do. I do not have any problem with the Executive Session, but we are having a lot of discussion and so much is happening that I have to weigh in. I cannot just save it. My questions are kind of different, probably. In the last two meetings, you have heard me say that... and I have advocated in the Charter amendment... I have been involved in previously that what is clearly outlined and envisioned in the Charter happened and it did not happen previously. You are aware of that, correct? Ms. Clark: I am not quite sure what you are referring to. Mr. Bynum: This is not the first time we have a Charter amendment and one of them was thrown out... at least one them was thrown out because the Court said it was not a Charter amendment. This question is an important one. I do not question that. It is process that I want to understand and that is what we are talking about here now. I said during testimony last time, I sent a request to the County Attorney in an E-mail saying, "I got a copy of the Charter" because I asked for it and it was available. I said, "Here is a copy if you do not have it. In the past, we have not done these things. Can we get started on this?" In the past, the attorney says it is not ripe until we count the signatures and because of these time constraints, it is like "let us get going." I never received a response to that E-mail. Then I think I started to put it in writing, "but other Councilmembers have already asked questions." So I still have not had this question answered from the County Attorney. "Have you started an analysis of the Charter and do you intend to do that and communicate with the committee in sufficient time?" You said today that you can do it or you cannot. The Charter says it is up to you, right? SPECIAL COUNCIL MEETING 17 JUNE 4, 2014 Ms. Clark: I have a meeting scheduled with Bob Grinpas to discuss the submittal that was made. He is an attorney licensed in Hawaii. Mr. Bynum: I know who Bob Grinpas is. He is also a flower grower. Ms. Clark: He is also a licensed attorney with good rating (inaudible). Mr. Bynum: I know that. The question was has the County Attorney... does your Office intend to follow the process that is outlined in the Charter that you will do an analysis of this and give feedback to the group. That is the question I asked on April 26th. Will do you this and will you get it started? Do you have to wait for the signatures to be counted? That is the question that I have not had answered in writing. I did not get an opinion that answered that question, so I am asking it now. Ms. Clark: Well, I think before that process is applicable, you have to decide rather it is a Charter amendment or an initiative. Mr. Bynum: I have already said publicly, you have to decide that before you do an analysis. That is brand new to me and never heard that kind of standard applied elsewhere or previously. I did not want to have this discussion on the floor again. I wanted to go in there— again, the second week in a row, the written opinion that I am supposed to have an informed dialogue with my colleagues and you were not here when I came in at 1:55 p.m. I have not had a chance to read this and digest it. The previous opinions— we discussed having this kind of discussion on the floor last week and they were on the desk. It is like "Is this what we are talking about?" Would it not be better if we read the opinion at least a couple of hours in advance before we started talking about it and related issues on the floor? Ms. Clark: I think it would be much better. I think that there is a certain amount of work that can be done by the County Attorney's Office. There are a limited number of people in the Office and there is only so much work that can be done in a limited period of time. This is what happens as a result of that. Mr. Bynum: Yes. You have kind of answered my question. You are doing Yeoman's work to put this out in one week, right? I totally agree with what you just said. I am just saying... I am not blaming anyone. I am just saying that it is hard... this process... and now we are having a public dialogue, which is a good thing as long as we do it. Anyway, I am going to vote to go into Executive Session. It would have been nice, anyway. You have kind of answered my question. I put you on the spot here. I am not saying these were late. I am saying for whatever reason, we are having this discussion before I really had a chance to even read and digest this. I am done for now and I will vote to go into Executive Session. Thank you. Mr. Chock: Councilmember Hooser has a question. Mr. Hooser: I just have a brief follow-up. Councilmember Yukimura was talking about the process on the initiative process. Just for SPECIAL COUNCIL MEETING 18 JUNE 4, 2014 clarification for the public also, the initiative process deals with an ordinance separate from the Charter amendment. Is that correct? Ms. Clark: That is correct. Mr. Hooser: Okay, so all of the questions dealing with the initiative do not apply to the Charter amendment necessarily processed? Ms. Clark: There are different issues with initiatives and Charter amendments. Mr. Hooser: In looking at the Charter, I see "Article 24, Charter Amendment Provisions." All I see is 24.01(B), which talks about the percentage of signatures and the establishment of the petition committee and that the County Clerk shall examine it to see whether it is sufficient. I cannot see anything, here unless I am missing it, about the process to amend as we discussed. Ms. Clark: It is set forth in the very beginning of Article 24. It is 24.01(B) and it states it indirectly, but it states it. It just says, "such petitions shall designate and authorize not less than three nor more than five of the signers thereto to approve any alteration or change in the form or language or any restatement of the text of the proposed amendments which may be made by the county attorney." Mr. Hooser: Okay, so it does not explicitly say that they could not make— that is what I was looking for. Thank you. I read it a million times and did not see it. Ms. Clark: I think that the Council should bear in mind that this is a highly-charged topic. It is very likely that anything that is passed or rejected by the voters, anything along those lines, is probably going to end up in Court. So everything that you say today and I say today on the record will end up potentially in a lawsuit and I would suggest that if you are seeking advice from me, and you want to make decisions based on that advice, that you get it in confidence; decide what it is, whether you want to accept it or reject it, and then at that point, make the decision on whether the discussion should be public. I would suggest that it is more beneficial to you to get all of the information first, and then make your choices. It is not our privilege. It is your privilege. I just want to protect your rights and protect the County so that it is not harmed by any discussion that could occur today. Mr. Hooser: I appreciate that sentiment. It is difficult for me, personally, to just go into the other room, have the discussions, and come out and make decisions based on that. In many ways, I do not feel it is fair to the public. We do have just rank and file members of the public with very little experience in this, trying to exercise their rights in a democracy. I think it behooves us to support that as much as we can, at least by letting them know what is going on and what the discussions are. I understand the risks, if you would, but I also think we have an obligation to provide whatever support we can to the four thousand (4,000) people that signed and all of the citizens. Let the people decide. It goes on the ballot. If the majority of the citizens of Kaua`i pass it, then so be it. They can make that decision. When we go into Executive Session, it is our decision to release or not release. SPECIAL COUNCIL MEETING 19 JUNE 4, 2014 Ms. Clark: Absolutely. Mr. Hooser: I believe it is difficult to do that selectively. We could have a discussion and only want to release some parts and not other parts and that gets a little tricky also, I believe, because we basically break our "client-attorney privilege veil," if you would. There are no simple answers. Thank you. Mr. Kagawa: Mona, is it not the County Attorney's job and our job to try and make sure that Charter amendments, initiatives, or what have you are sound before they go on the ballot and get voted on because should they pass, it then becomes law? Should we not make sure that we make it so it has a low chance of going to Court? Is that not the proper way? Ms. Clark: I think it is important that initiatives and amendments are valid so that if it is adopted, you do not end up in Court with the Court saying that appropriate procedures were not followed and all the work is for naught. I think it is important that the procedures be followed correctly and in a timely manner. Mr. Kagawa: Okay. Were you the attorney working on the— I asked for an opinion when I first got the Kaua`i Rising Food Bill of Rights. Did you see that? It was in draft form. I asked the County attorneys for an opinion on that draft bill. Ms. Clark: When would that have been? Mr. Kagawa: I would say early 2013. Ms. Clark: No, because I was not here between March and June. Mr. Kagawa: I would think that Al would at least brief you on that bill because I think it is very similar to the current Charter amendment and we could see what work we did so we do not have to recreate the wheel. Can you check? I am sure the attorney put it... Ms. Clark: I will happily familiarize myself with something that appears to be relevant from what you are saying. Mr. Kagawa: Okay. Mr. Chock: Sorry, Mona, that it is taking so long for us to get to a decision on whether or not we can go in the room here. Can you walk me through to what happens when we do not vote to go into Executive Session in terms of communication that needs to happen and information that we need to receive and what the Clerk's Office needs to receive? Ms. Clark: As far as receiving an opinion from our Office, you all have received a written opinion. You have that in your possession and may do with it what you want to do with it. Beyond that, as far as questions that go to the liabilities of the County, potential lawsuits or whatever, I would think you would not want to discuss that in open session. SPECIAL COUNCIL MEETING 20 JUNE 4, 2014 Mr. Chock: Okay. Lastly, I think what some of the argument is here is whether or not this Council really has some authority here and what that authority is. I am not sure if we have gotten a real clear answer as to what that is. Ms. Clark: That is why I was suggesting that we go into Executive Session. Mr. Chock: Thank you. Any further questions? If not, I need a motion to move us into Executive Session. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Yukimura moved to convene into Executive Session for ES-734, seconded by Mr. Bynum. Mr. Chock: Okay. Is there any further discussion? Mr. Rapozo: Thank you, Mr. Chock. Obviously, I will not be voting to go into Executive Session. We keep talking about a decision. We go into Executive Session and there is no decision to make on this body. It is done. We made the decision last week, so it is done. This is an attempt to satisfy our curiosity at the public's expense. I have read the opinion here that was presented. I do not see anything in here that even qualifies for the exemption under 92. I do not. The Clerk, as I have been informed, has requested an Attorney's Opinion and you can get the Clerk's acknowledgment on the record if you want. It was just submitted, but he has requested a list of questions as far as the authority. We, here on the body, are bound by law to use Executive Session for specific and limited purposes and that is really to keep the discussions transparent. We get criticized for twenty-nine (29) Executive Sessions for this matter and so forth, but those are cases that are in Court. This one— we are going into Executive Session to talk about process, policy, and the Charter. That does not qualify in any of the exemptions in my opinion, but each of us on this body has our own opinion of whether or not that legal standard has been met. I will respect what the body decides, but I do not believe— I do not want to go in there to discuss hypothetical's. It is real simple. We have asked where the Council's authority lie and I thinks it is pretty clear that we have no authority as to what goes on the ballot. I asked Mona where in the Charter is the authority given that we even have a say in whether it is an initiative or Charter amendment and it is not in there. We have met our obligation under the Charter; we did that last week, so our duty is done. We have to honor that process of the Charter and let the chips fall where they fall. If the Council had the authority— and sometimes I wish we did because in retrospect; the "`Ghana Tax Amendment" as well as the Transient Accommodation Unit (TAU). I can only speak for myself, but my recollection tells me that the Council at both times felt those measures were illegal, but we had no say. It went to the Clerk's Office and it got put on the ballot and then we got sued and lost twice; 0 for 2. I am not saying that the Council knows better, but if the Council had a say, we may have saved the County some money, but we do not have that say and history tells us that. It goes through the process. Let the Clerk decide whether or not— the big difference is that when the lawsuits get filed, the Clerk's name will be on defendant's line and not ours. That is the reality of it. But that was the whole intent of the initiative referendum Charter amendment process, which was to keep the politics out of it, so the Councilmembers would not have a say because that could really derail- SPECIAL COUNCIL MEETING 21 JUNE 4, 2014 seriously, that could derail a legitimate community movement by having seven (7) members say "no." We do not have that authority. That is the community's authority. I am not a lawyer, but I do have some commonsense. Again, we took action on this last week. The Council's job, as far as I am concerned, is done. By getting involved at this point would usurp the power and authority of the County Clerk and I am not going to do that, so I will not support going into Executive Session. Thank you. Ms. Yukimura: Councilmember Rapozo said that we have to honor the process of the Charter. Well, that is what we need to understand as Councilmembers. We do not even know— there may be some authority that we have in this process of the Charter that we need to know about. We also are the ones who select the Clerk and oversee the Clerk's performance in terms of following the process. Even if it is to affirm what the Clerk has decided, we need to understand that. If there is something that is amiss, we need to understand that too. We also owe it to the petitioners of this amendment to understand the process so we can make sure that the process is being properly followed. We also owe it to the larger population of people on this island who want proper process followed. If the other side were offering a petition, you would want them to follow the rules to get it properly on the ballot. If we are to be a community of law or a County of law, we have to know what the law is, so we can follow it. In fact, when we were all inaugurated we swore to uphold the law; the Charter of the County of Kaua`i and the Constitutions of both the State of Hawaii and the Federal government. We are lawmakers. We have said we are following the law. We need to understand that the law is and that is why I feel we need to be briefed on this. Mr. Hooser: I am not going to support the motion to go into Executive Session. Mr. Kabutan talked about derailment and I agree that we have not derailed it, but it certainly feels like roadblocks are being thrown up. The people have conducted themselves according to the law. They went out and got the signatures. They gave it to us, we received it, and it goes to the Clerk. We have the opinions. I read what I have been given and I can study those and read them and I am comfortable enough doing that. I am not comfortable tampering, which I feel we are bordering on, in the process. We go into the other room, conclusions come to, and then what? We try to influence the Clerk? I do not believe so. The Charter says that the Council appoints the Clerk and the Clerk conducts all elections held within the County, pursuant to the Charter. We do not tell the Clerk how to conduct elections. We do not try to influence Elections. That is the Clerk's responsibility. The people have gathered together of their own free will, put this together, gathered signatures in the hot sun, come here and want to put it on the ballot according to the Charter that they have been given and according to the instructions that they have been given all along, and now all of a sudden, the rules are going to get changed at this point, which has never been changed to my knowledge. I am not comfortable with that at all. Again, I would prefer that, if there were some concerns, the County Attorney share those concerns and suggest amendments so that the petitioners can improve it. If that is not the case, it goes on the ballot, the people could become informed, and voters of this County can read or not read and listen to whatever they want to listen to and vote at the end of the day on November 4th to pass this Charter Amendment or to not pass it, and then we deal with it at that time, according to the will of the voters of the County of Kauai. I am not going to be supporting this. Thank you. Mr. Kagawa: Mark this day down on your calendar where I agreed with Mr. Hooser, June 4, 2014. I think about this process and this time, it SPECIAL COUNCIL MEETING 22 JUNE 4, 2014 is the County Attorney's job to figure out, "Is it a dog or it a cat," and make the call. It is not the Council's job to make this political as to whether this belongs on the ballot or not? It is the County Attorney's decision. You do not need to have us make the decision so you can blame us for a job you should be doing. I am not blaming you, Mona, personally; I am blaming Al and the Office. Make the call on this issue. If it needs to be worked on, then work with Kauai Rising. Take out what perhaps will make this a risky bill, but take it out and work with them. I am you sure they are flexible. They do not need all eighteen (18) pages in there. I do not know— that is my opinion. Work with them, get it on the ballot, and let us get it voted on. The time is ticking and we are going to go in there and delay, and then next week we are going to have another one. Just make the call. You are the attorneys. We should not tell you how to interpret our laws. I think that you do a better job than us. We are public servants elected by the people. Thank you. Mr. Chock: Councilmember Bynum, and then Councilmember Yukimura. Mr. Bynum: I think I am going to have a lot to say, so I ask someone to time me so I do not go over time. It is clear that we are not going to go into Executive Session. I accept the will of the body and there are a lot of opinions being expressed and I talked about this last week. I do not want to be too redundant, but basically when Wendell said that he is concerned about the process being derailed, I think that is a very reasonable concern. I was not going to talk about derailment, but everybody else did, so I think it is a very reasonable concern because the public record will reflect that last week, there was a move by some members to defer this, which in my opinion would have derailed the process. In my opinion, we took the right action last week. It was basically ministerial. I agree with Councilmember Rapozo on almost everything that he said. That is my position that any sense in what other Councilmembers said that there may be a role for the Clerk or the Council prior to the County Attorney giving this group an opinion is something I do not agree with. If we apply that standard, it has never been applied before. I said last week that I want to go and have the dialogue, why would people think this, and how is it in law? I have been surprised many times and had to change my opinion because it turned out that the Hawaii State Supreme Court had already ruled on something and it seemed like an absurd ruling to me even from then, but it is the law. As Councilmember Yukimura said, we are lawmakers; not law breakers and we want to make sure that we are doing it properly. So we are having this discussion about "is it a dog or cat" is great because it did not happen the last couple of times when it should have. I do not think we should be releasing current opinions on something that is likely to end up in Court. That has always been my position and my public record will reflect that I have been the biggest advocate for the release of County Attorney opinions. I even tried to put laws in to designate how it would happen and when. This County Attorney has released more than any and we have got a system to do that. Those are improvements that happened here at Council. I am sorry— I am off on a tangent, but this is how the process works. Initiatives and Charter petitions by their nature are grassroots and citizens. You do not need to get an attorney and that is why the Charter contemplates that our attorneys will give feedback and even the opportunity to change it if it is not too substantial, I would think, right? I want to go into Executive Session. We are not, but I have read the opinion. It goes to matters that I think we should do there and it is not something that I would release. That does not mean... I want to make clear my position because everybody has made their position. We should just let this go. I am really concerned that I did not get an answer today or an answer since I inquired on April 26th if the County Attorney SPECIAL COUNCIL MEETING 23 JUNE 4, 2014 intends to do that review and give you feedback. What I heard today is that we have to determine if it is a proper amendment first. I think that is what I heard. I do not agree with that. That would be some new standard that has never been applied before in my opinion, but I have to do this caveat. If I cannot have this robust discussion with my colleagues in the other room and read the opinions and see what the Supreme Court and other courts have said, which is our due diligence, then I will be at a disadvantage because this is something that should happen in private, but should happen with all of us. It is the only legal way that we can all talk about these issues. I cannot tell Councilmember Hooser my position, and then tell another Councilmember because I would be violating Sunshine. The way we avoid violating Sunshine is we go into Executive Session. I want to explain why... if there is a vote called... I hope we just do not call the vote and move to receive or something. It is clear that we are not going to have the five (5) required votes, especially with the Chair not present. Thank you. Mr. Chock: Councilmember Yukimura. Ms. Yukimura: The record from last week's discussion will reflect that I do think it is a ministerial decision for the Clerk. I am not trying to change it in any way, but I am trying to understand if in fact it is and I would like a time to discuss it with the attorney. Councilmember Bynum's point about us making a decision as a group is well-taken. We cannot act as a Council except as a body. I have changed my mind many times both in Executive Session and out of Executive Session due to the insights and input of my colleagues around the Council. That is why I too feel it is very important to have a robust discussion with our County Attorney about what the rules are. It is not about changing the rules. It is about understanding what the rules are by which we all are supposed to operate in terms of Charter amendments. I think we are not doing our due diligence by not going into Executive Session and hearing what our attorneys have to say, hearing what the Supreme Court record is on the issues, and better understanding this very, very important issue. Mr. Chock: Mr. Rapozo. Mr. Rapozo: I am not saying that we cannot have the discussion. Mr. Bynum and Ms. Yukimura infer that I am saying that we cannot have the discussion. I am saying that we can and should, but it should be here in the open. That is what I am saying. Nothing in that really talks about any potential litigation. A Supreme Court decision, as Ms. Yukimura or Mr. Bynum talked about is public record. There is no secret to that. Why are we hiding from the group? Why would we want to? We want a good amendment to be put on the ballot. Whether we agree or disagree, I will agree with the process that the public has a right to put up a petition. You guys, as Mr. Kagawa just said, should be guided to some point and not have anything back there you do not know about it, and then you submit— you know what we are doing? We are encouraging the lawsuit. Let us have the discussion here in the open. You make the final determination whether or not you want to change it or not. I am saying let us have the discussion. I am just saying that it does not meet the standard, in my opinion, to go into Executive Session. Councilmember Yukimura said we owe it to the petitioners to have this discussion. I agree, but we do not do it behind closed doors. You should be part of this discussion, if the intent is to provide a good legal, valid amendment, and then you let the people decide; let the public decide because if the majority of this public agrees, then the people have spoken. We swore to follow the law, as Councilmember Yukimura said, but that also includes the Sunshine Law. SPECIAL COUNCIL MEETING 24 JUNE 4, 2014 Again, we can have the discussion on powers and authorities here. It is a process. Where do we fit in the deal? If there are some areas that may cross the line of potential exposure to the County, then we go into Executive Session, but I cannot imagine all of the discussion— in fact, most of the discussion has already been out here. I submit that we can have that discussion, but we do it here in the open. I think everyone has had their two opportunities to speak, Mr. Chock. I am going to call a point of order. Mr. Chock: I agree. You have had a chance to respond as well. Did you want to respond to something or did you want to actually add more to your discussion? Ms. Yukimura: Yes, I do. Mr. Rapozo: Are we going to get a third opportunity as well, Mr. Chock? We just saw the memo from the Chair; two times, five minutes. If you are going to... Ms. Yukimura: I did not speak for five (5) minutes. Mr. Rapozo: You spoke twice though. Ms. Yukimura: That is correct. Mr. Rapozo: If you speak again, then I will take another shot as well. I mean that because we keep doing that. Just call for the question. Mr. Chock: I saw her hand up first, so if we are going to have a second round here... Mr. Bynum: The record will reflect that I have had one. Mr. Hooser: Point of order— state your point. I agree with Councilmember Rapozo. We had a robust discussion. Councilmember Yukimura has talked at least twice, I believe, with the conclusion. Councilmember Bynum had a certain amount of time. He spoke once. Two times is the rule, I believe. Otherwise, we play the game of who gets to speak last and I think that is inappropriate. Mr. Rapozo: That was my strategy. I spoke last. Mr. Chock: For the record, I was not keeping track of who was speaking twice or not. Let us just get to respecting each other. I do not know how many times Councilmember Yukimura spoke, but if you need something to say that will add to this discussion, that is what I would ask for and make it brief so we can move forward. Ms. Yukimura: Thank you. It is in the discretion of the Chair, so I appreciate it that, Chair. I just want to say that those who were in favor of Bill No. 2491 were aghast when the Mayor released the County Attorney's opinion. This is likely to go to Court and so there is this issue of whether or not a County Attorney's client-privilege should be waived and it makes much more sense to first have the conference with the attorney, and then decide what we want to release. We have not even had a chance to discuss with the attorney what those SPECIAL COUNCIL MEETING 25 JUNE 4, 2014 potential liabilities are. I think we need to go into Executive Session first, and then make our decisions as to what should be open and what should not. Mr. Chock: Thank you. Councilmember Bynum. Mr. Bynum: I have already made my position clear. I had these notes. I was saying it is inherent in the process that it is grassroots and this idea— I love the answer, "I have a card. You can see it on the web. Here is a copy. Here is a summary. . Which one do you want?" When we go to the ballot box, everybody who votes is going to have one paragraph probably and we all know that we have our responsibility as informed voters. There are lots of initiatives in the past in my past voting that I did not vote on because I did not have the time to get well-informed and make an informed decision and it is inherent democracy that that responsibility is on the voters. We have to be sensitive to the voice of the people. I do not want to be rhetorical, but all of this legal stuff— now these guys actually brought us an attorney that I was able to dialogue with and made a lot of sense and helped me understand some issues, but that should not be a requirement and signing a petition... there should be some requirements that the language is sufficient and appropriate and I believe they were in this case. Anyway, I just wanted to make those comments. Thank you. Mr. Chock: Thank you. Would you like to speak again, Councilmember Rapozo? Mr. Rapozo: No, I am over it. I am ready for the vote. Mr. Chock: Thank you. Me too. I have not had a chance to speak as well, but I do not need to because everything that has been said already, I would have said already in my five (5) or ten (10) minutes. I will be following up with the County Attorney to get more information because I think it is my duty. I will call for the vote, please. The motion to go convene in Executive Session for ES-734 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Bynum, Yukimura TOTAL– 2, AGAINST EXECUTIVE SESSION: Hooser, Kagawa, Rapozo, Chock TOTAL– 4, EXCUSED & NOT VOTING: Furfaro TOTAL – 1, RECUSED & NOT VOTING: None TOTAL– 0. Mr. Chock: Okay, 2:4:1. Mr. Rapozo moved to receive ES-734 for the record, seconded by Mr. Hooser, and carried by the following vote: FOR RECEIPT: Bynum, Hooser, Kagawa, Rapozo, Yukimura, Chock TOTAL– 6, AGAINST RECEIPT: None TOTAL– 0, EXCUSED & NOT VOTING: Furfaro TOTAL– 1, RECUSED & NOT VOTING: None TOTAL– 0. Mr. Chock: I believe that concludes our business for this Special Council Meeting. This meeting is adjourned. SPECIAL COUNCIL MEETING 26 JUNE 4, 2014 ADJOURNMENT: There being no further business, the Special Council Meeting adjourned at 3:28 p.m. Respectfully submitted, RICKY WATANABE County Clerk :cy