Loading...
HomeMy WebLinkAbout07/09/2014 Council minutes COUNCIL MEETING JULY 9, 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, Suite 201, Lihu`e, Kaua`i, on Wednesday, July 9, 2014 at 9:37 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum (present at 10:25 a.m.) Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser Honorable Ross Kagawa Honorable JoAnn A. Yukimura Honorable Jay Furfaro Excused: Honorable Mel Rapozo Chair Furfaro: Madame Clerk, please note that Mr. Rapozo is excused because he is traveling to the National Association of Counties (NACo) Conference on the mainland. Also, I believe that Mr. Bynum's excuse note indicates that he will arrive around 10:00 a.m. Can we please read the section on public comment, which is extended for the courtesies of those people that are on a timeline. PUBLIC COMMENT. Pursuant to Council Rule 13(e), members of the public shall be allowed a total of eighteen (18) minutes on a first come, first served basis to speak on"any agenda item. Each speaker shall be limited to three (3) minutes at the discretion of the Chair to discuss the agenda item and shall not be allowed additional time to speak during the meeting. This rule is designed to accommodate those who cannot be present throughout the meeting to speak when the agenda items are heard. After the conclusion of the eighteen (18) minutes, other members of the public shall be allowed to speak pursuant to Council Rule 12(e). Chair Furfaro: Thank you. Is there anyone in the audience who wishes to speak now because of challenges in their calendar? If they do speak now, they will be allowed three (3) minutes without any question and answer from the Council and they will only be allowed to speak at this time, this morning. Is there anyone in the audience who wishes to speak on any posted agenda item? Seeing no one, we will move off of the public comment period. Let us move to approve the minutes, please. There being no one to provide public comment, the meeting proceeded as follows: JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Chair, can we get an approval of the agenda also? r COUNCIL MEETING 2 JULY 9, 2014 Chair Furfaro: My apologies. I am looking for an approval on the agenda, but I do want to note that the County Attorney will have some housekeeping items to share with us. APPROVAL OF AGENDA. Mr. Kagawa moved for approval of the agenda as circulated, seconded by Ms. Yukimura, and carried by a vote of 5:0:2 (Mr. Bynum and Mr. Rapozo were excused). Chair Furfaro: Thank you. Now we will go to the minutes, please. MINUTES of the following meeting of the Council: February 5, 2014 Special Council Meeting May 7, 2014 Public Hearing re: Resolution No. 2014-11, Bill No. 2537, and Bill No. 2538 June 10, 2014 Council Meeting June 10, 2014 Public Hearing re: Bill No. 2546 June 25, 2014 Special Council Meeting Mr. Kagawa moved to approve the Minutes as circulated, seconded by Mr. Chock, and carried by a vote of 5:0:2 (Mr. Bynum and Mr. Rapozo were excused). Chair Furfaro: Thank you. For the body's information, I have a written request that comes from the County Attorney in dealing with the proviso in the posting by the County Council for their agenda regarding item C 2014-201. In the County Attorney's opinion, it appears that we might have a violation of such for the posting on this item. May I call the County Attorney up? There being no objections, the rules were suspended. There being no objections, C 2014-201 was taken out of the order. ALFRED B. CASTILLO, JR., County Attorney: Good morning. Council Chair and Councilmembers. Al Castillo, County Attorney. I would like to talk about agenda item C 2014-201. I looked at this agenda item and it requests to speak about a "broad-ranging discussion regarding data collection and analyses." Regarding the Office of Information Practices (OIP), the Sunshine Law; opinion letter 07-06 and Hawai`i Revised Statutes (HRS) Section 92-7, it provides that the Council agenda must be of sufficient detail to provide the public with adequate notice of matters for discussion. This is to enable the public to decide whether to attend and participate on this agenda item. In looking at the language of the agenda posting, a "broad-ranging discussion on data analysis and data collection within the County" is of such a broad range that it is not specific enough. Based on that, I did contact the Office of Information Practices. I did have a lengthy discussion with the Staff Attorney and based on my discussion, I recommend that this matter be received and reposted where I could give guidance for a future posting that would be proper and would not be in violation of the Sunshine Law. That is my recommendation. COUNCIL MEETING 3 JULY 9, 2014 Chair Furfaro: For the purposes of the audience, the item that we are discussing right now has to do with property tax evaluations, categories, and the data available to us both at the County level and the State level and you are indicating to us that the posting is not specific enough to focus the discussion on specific points? Mr. Castillo: That is correct. Chair Furfaro: Therefore, OIP has recommended a new posting with us being less broad and more specific on the subject matter. Mr. Castillo: That is correct. Chair Furfaro: Okay. Questions, Councilmembers? I will start with Mr. Hooser. Mr. Hooser: Chair, the posting says "Director of Planning." It is a request for the presence of the Director of Planning to have a broad-ranging discussion on data collection and the problems with analyzing data within the County, so it is specific to the Director of Planning. Is that not specific enough? Mr. Castillo: No, because of the broad-range discussion, discussion with the Director of Planning regarding not only the tax issues, but regarding the geographical information system yielding to other subject matters that have not been specifically posted. I did discuss this with the Office of Information Practices. Mr. Hooser: Okay. Thank you Mr. Castillo: You are welcome. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: So in fact, you got a verbal opinion from OIP? Mr. Castillo: Yes. Ms. Yukimura: You did? Mr. Castillo: Yes. Ms. Yukimura: Who was the Staff Attorney that you spoke with? Mr. Castillo: Lorna Aratani, if I remember her name correctly and I hope that I do. Ms. Yukimura: Okay. She opined that this particular wordingis too broad and violates the Sunshine Law? Mr. Castillo: I do not want to say that we are in violation of the Sunshine Law. I want to say it is too broad and it should be more specific and to avoid any violation of the Sunshine Law because that is the conclusion. It is COUNCIL MEETING 4 JULY 9, 2014 recommended by both of us that this matter be reposted so that it does not violate the Sunshine Law. Ms. Yukimura: Okay, so OIP has recommended that we receive this matter without discussion and repost? Mr. Castillo: The recommendation is that it would be wise to repost and have more specific language. The vehicle by which to accomplish that is for this body to receive it so that we can repost with a much better language. Ms. Yukimura: Okay. I do believe that the mention of the Planning Director gives guidance as to the data collection that is being requested and that it is Planning Department data, so to me, it is not overbroad. But if it is the recommendation of OIP, I think it is something we have to follow. Chair Furfaro: Mr. Kagawa, and then Vice Chair Chock. Mr. Kagawa: Yes, I agree with Councilmember Yukimura's last statement that we should just repost, take the recommendation, and I guess listen because we do not want to get in trouble if we can avoid it. Are you willing to work with Mr. Bynum to make sure that we can have something that fits his need? I am sure that he can maybe give your staff more detail as to what exactly he wants and maybe we can accomplish what he wants that is sufficient for OIP. Mr. Castillo: Yes, absolutely. The discussion that I had with Lorna Aratani is that there are areas that the Planning Director could go into that would be specific, and because it will be specific, it does not give the public the proper notice that they are going to talk about this particular subject matter. Councilmember Kagawa, I will work with Mr. Bynum to make sure that we fix this. Mr. Kagawa: Yes, because I agree. As I read this, I do not know what he really wants. Maybe some of the other members know what he wants is to gain more knowledge about how we can classify different properties, but I do not read that in here. I take your recommendation and I say let us move on. Thank you. Chair Furfaro: Vice Chair Chock, you have the floor. Mr. Chock: Thank you, Chair. I am supportive of the recommendation. It sounds pretty clear that we need to follow it. It is unfortunate that Councilmember Bynum is not here to speak to it. The process question that I have is did we have a discussion with him prior to this posting? What can we do in future to ensure that these kinds of things are mitigated? I have seen this happen a few times now and I am not pointing any fingers, but we should probably spend more time in terms of how it is we get these on so that we are clear and we do not have to do this here. Thank you. Mr. Castillo: Councilmember Chock, I firmly agree because had I had an opportunity to review this before it was posted, then I would have made a recommendation to make it more specific. Unfortunately, I come in at the end where on Thursday evening, I look at the agenda item and it is already done. COUNCIL MEETING 5 JULY 9, 2014 Mr. Chock: Okay, so maybe we can just look at being a part of the process there. Thank you. Chair Furfaro: Mr. Hooser. Mr. Hooser: Just to be clear, OIP recommended that we repost this item? Mr. Castillo: Yes, and that it would be prudent of us to repost. Mr. Hooser: So OIP did make that recommendation? Mr. Castillo: Yes. Mr. Hooser: I just want to be clear whether you had a discussion with them and you came to that conclusion or if they came to that conclusion. Mr. Castillo: We both came to that conclusion. I would rather discuss with you personally all of the things that we discussed regarding this agenda item and where it could go and why it would be in violation of the Sunshine Law if we proceeded. Mr. Hooser: So the alternative would be for the introducer to list every single item that possibly might want to talk about to make sure it was all covered, so he could list twenty (20) items on the list and have a far-ranging discussion because all of those twenty (20) items are on the list. Is that what we need to post next time? Mr. Castillo: Sufficient detail, Councilmember Hooser, at times can be subjective; sufficient detail. Mr. Hooser: Okay. Thank you. Mr. Castillo: I thought this was not sufficient. Chair Furfaro: Okay. We find ourselves in a position that we all do the best job we can. I want to point out a couple of things. The Council has very old rules and traditional rules. Even yesterday, I received something that wanted to be posted for next week and our own rules indicate that posting information should be present to us at least six (6) days in advance. Based on that rule, there should be enough opportunity for the County Attorney's Office to, in fact, evaluate and raise red flags. It has also been my practice as Chair, and I have been Chair for five (5) years, that I rarely exercise my right to postpone anything on the agenda, and I have up to one hundred twenty (120) days to do such, but I have tried to expedite it. Based on the sign of caution here that you had in conversation with OIP, I am going to suggest that item C 2014-201 be received and reposted for our next scheduled time in two (2) weeks. I have some assurances that you will meet with Mr. Bynum. Mr. Castillo: I will. Thank you. Chair Furfaro: Thank you. Mr. Kagawa. COUNCIL MEETING 6 JULY 9, 2014 Mr. Kagawa: Chair, I have a recommendation. It seems like if there is going to be a long discussion on these broad-ranging issues of data collection and such, perhaps we can have it in Committee in Mr. Bynum's Planning Committee. I think that would be more appropriate. Chair Furfaro: I think that is a very good recommendation, which would actually bring it up in one (1) week. Can we do it in one (1) week? Mr. Castillo: I am sure that we can. Chair Furfaro: Thank you. Excellent recommendation, Mr. Kagawa. We will put it in his Planning Committee. Mr. Castillo: I am sorry. Council Chair? Chair Furfaro: Yes. Mr. Castillo: The request may count upon the presence of not only the Planning Director, but may include the presence of Steve Hunt and/or Brandon Raines. Just for full disclosure, I think that Steve Hunt will not be available for the next two (2) weeks. I am just letting you know. Chair Furfaro: I want to point out a couple of things. Please, folks, do not jump in and try to manage or wag the tail of the tiger. What has been requested is a posting for the Planning Department. If it entails the presence of other sources for the Planning Director, that was conveyed to Mr. Bynum. He still wanted to move forward. Whether we do it in one (1) week or two (2) weeks, that has not changed. I would like that decision to be up to the individual Councilmember. If I have clashes in what I think is having the objective foundation of the problem and the information available to us, I will do what I did yesterday to the Councilmembers and send them my rationale of why we need more time on it. That is within my purview as the Chair. I am asking you right now, over the next thirty-six (36) hours, can you work with this out with Mr. Bynum if we so decide to put it in the Planning Committee? If you cannot, I will reject it and I will put it in the Council Meeting coming up in two (2) weeks. Is that fair enough? Mr. Castillo: Yes, and I can. Chair Furfaro: Thank you. JoAnn. Ms. Yukimura: I think it is my understanding that Planning Director Dahilig may also be gone for a while, so it may be better to leave some flexibility and say that the reposting will be for either a Committee Meeting or a Council Meeting and that would give the Chair... Chair Furfaro: As I just said, it would be at the purview of the Chair. Ms. Yukimura: Yes. As long as we do not assign it to a Committee or Council Meeting in our motion. Mr. Castillo: We can accommodate. COUNCIL MEETING 7 JULY 9, 2014 Chair Furfaro: I am going to state it now, I am going to take the recommendation from Mr. Kagawa. If you can resolve those issues with Mr. Bynum in next thirty-six (36) hours, we will consider it to go to next week's meeting. If you cannot resolve it, it will be received today and come back in two (2) weeks. Fair enough? Mr. Castillo: Yes. Chair Furfaro: Mr. Kagawa, you make the motion, maybe to move to "receive pending posting in one (1) or two (2) weeks?" Mr. Kagawa moved to receive C 2014-201 for the record, pending a reposting in one (1) or two (2) weeks, seconded by Mr. Chock. Chair Furfaro: Thank you. Mr. Hooser. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Hooser: This is very frustrating. The reason this item is on the agenda is because a Councilmember is having difficulty getting information from the Administration. That is why it is on the agenda. This Councilmember, myself, and I think many of us, share this frustration. We do not get the information that we need in a timely fashion when we for ask it, so a Councilmember is just saying, "Can we just have a discussion about this; a free ranging discussion with the Planning Director about getting information?" We are being told that we cannot do that. To me, that is ridiculous. I understand, Chair, that the rationale of not want going against the recommendation of the Office of Information Practices, so I respect that. But the alternative, as I described earlier, is just to give them a long list of things that we might talk about, so we make sure that we cover everything, which is no more useful to the public than the original posting, in my opinion. If there was a will from the County Attorney to actually represent what the Councilmembers are trying to accomplish, the County Attorney could set at its meeting that is broadly defined and if we get going in the wrong direction, drilling down too far in any particular subject matter, they could advise us not to go there. The description is a "broad-ranging discussion." If this Council cannot have a "broad-ranging discussion" with a Director of the Department of the County, it is a serious problem. Then to find out to repost it, "Well, we cannot really get the information now because someone is not going to be here. It is going to be another two (2) weeks." It just compounds the entire reason— not compounds, but it just further displays the reasons why some of us are very frustrated and why this item is on the agenda in the first place. My frustration is not at the Chair or this Council. I understand... Chair Furfaro: I hope it is not at me. Mr. Hooser: I understand. Apparently, OIP says that we should repost it, but to me, it is beyond comprehension that we are getting this advice and that there are not alternatives of support from the County Attorney's Office so that we can move forward with this. Thank you. Chair Furfaro: Further discussion? JoAnn. COUNCIL MEETING 8 JULY 9, 2014 Ms. Yukimura: Yes. I am very leery of any time where we are trying to stop or delay discussion, but I, too, will abide by the recommendations of OIP. I do think that one or two words could maybe narrow this a little bit, like have a "broad-ranging discussion on Planning data-collection" or something like that could narrow it a bit. I do think that if we want good information, we do have to work around the presence or absence of key people; that is if they are not going to be here, we need to be willing to— "here" meaning "on-island," due to a legitimate absence, that we need to have the right people at the table in order to have a good discussion. I do see that as a legitimate reason to schedule the discussion. I, too, am disappointed that we cannot have the discussion today. Chair Furfaro: Further discussion? Mr. Kagawa. Mr. Kagawa: Thank you, Chair. When I look at this posting, like I said, I did not know what type of information we are looking for from the Planning Director. If I was the Planning Director, I would want to be prepared for what type of questions is coming at me. In all fairness, I believe that we could take the County Attorney's Opinion and add a little more sufficient detail as to what we are looking for, and I think it would be okay. I do not think it is a big thing of what the County Attorney is asking for. I think we came in with a very broad agenda item that you could almost ask any question you wanted out of the Planning Director. It is not very easy to prepare for that kind of agenda item. Let us be fair on both sides. Thank you. Chair Furfaro: Thank you. Mr. Chock. Mr. Chock: Thank you, Chair. I think a few words might be able to be changed. I do not see a huge issue with it. I kind of feel like, as much as possible, we should be having face-to-face open conversations. This is what will help to bring people together in agreement. I want to foster that. I think that a lot of these discussions probably could be had outside. I am suffering with the same issue, so I am frustrated as well. I do not often get a response, and I am not sure why, but it let us create more space or time in order to ask questions. We have got to get to some solutions and we have to get to some agreements, but we need the space and time to do it. Whatever we need to do in the process, let us get to it and create the space. My hope is that whatever Councilmember Bynum is looking for, he is just going to continue to look for the answers and that we will have, one now or later, multiple meetings on it. Let us get it done. Thank you. Chair Furfaro: Members, let me just saying going forward that we have this motion that will give us an option in one (1) week or two (2) weeks. For those of you that have noted your time on the Council, not one of you have ever had an item that you submitted to me, which is my authority, that I have ever rejected putting on the posting. We have very old rules and we have rules that we need to follow. Now, we have a recommendation from OIP on this. I could also point out in five (5) years, I have even had to find myself defending myself with OIP to the tune of more than seven hundred forty dollars ($740) on the decisions that I make on behalf of the Council. I have no problem taking responsibility, but my responsibility also allows me to defer this up to ninety (90) days. That is in our rules. I got it last week, even knowing Information Technology (IT) was on vacation and the Finance Director was not available. It was focused on the Planning Department. Let us focus on getting the words drilled down and get it reposted. The motion is made. COUNCIL MEETING 9 JULY 9, 2014 The motion to receive C 2014-201 for the record pending a reposting in one (1) or two (2) weeks was then put, and carried by a vote of 4:1:2:0 (Mr. Hooser voted no and Mr. Bynum and Mr. Rapozo were excused). Chair Furfaro: Please record it as such. Now, I do understand also that there has been a request. Is the County Clerk available to us? Ms. Fountain-Tanigawa: Chair, may we take care of the items in the Consent Calendar, and then we can call the Clerk in? Chair Furfaro: Yes, let us do that. CONSENT CALENDAR: C 2014-196 Communication (06/12/2014) from the Mayor, transmitting for Council consideration and confirmation, the following Mayoral appointees to the various Boards and Commissions for the County of Kauai: 1. Board of Ethics • Maureen M. Tabura — Term ending 12/31/2014 • Mary E. Tudela—Term ending 12/31/2016 2. Cost Control Commission • Jan Hashizume — Term ending 12/31/2016 Ms. Yukimura moved to receive C 2014-196 for the record, seconded by Mr. Kagawa, and carried by a vote of 5:0:2:0 (Mr. Bynum and Mr. Rapozo were excused). C 2014-197 Communication (06/24/2014) from the Director of Finance, transmitting for Council information, the Period 10 Financial Reports — Detailed Budget Report, Statement of Revenues (Estimated and Actual), Statement of Expenditures and Encumbrances, and Revenue Report as of April 30, 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: Ms. Yukimura moved to receive C 2014-197 for the record, seconded by Mr. Kagawa, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Mr. Bynum was not present). C 2014-198 Communication (06/27/2014) from the Director of Finance, transmitting for Council consideration, proposed amendments to Chapter 5A, Kauai County Code 1987, as amended, relating to Real Property Taxes, as follows: 1. The first proposed amendment relates to the valuation of timeshare units. Declining interval resale prices has created an inequity in assessments, given the vast majority of timeshare units are now assessed lower than their wholly-owned condominium unit counterparts; establishes new tax class called "Time Share". (Time Share Tax Classification Proposal); 2. The second proposed amendment establishes a new tax class called "Residential Investor" for improved residential COUNCIL MEETING 10 JULY 9, 2014 properties that are over $1,000,000 in value where there are no home exemptions present and recognizes that high-valued residential properties tend to be more speculative in nature, are not typically offered as affordable housing, and often serve as second homes or investment properties. (Residential Investor Tax Classification Proposal); and 3. The third proposed amendment is a "housekeeping" bill for vacant multi-family land that was mistakenly placed into the "Hotel & Resort" tax class during the initial conversion to a use-based tax classification structure. Under this proposal, vacant multi-family land will be re-classified as "Residential". (Vacant Land Re-Classification) Ms. Yukimura moved to receive C 2014-198 for the record, seconded by Mr. Kagawa, and carried by a vote of 5:0:2:0 (Mr. Bynum and Mr. Rapozo were excused). Chair Furfaro: Thank you. Let us go to the next item, please. COMMUNICATIONS: C 2014-199 Communication (07/02/2014) from the County Clerk, transmitting a 2014 Charter Amendment Petition relating to "A New Article XXXIII Protecting Right To Clean And Healthful Environment From Hazards Of GMO Agriculture, Establish 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: I do understand that there has been some communication to the County Clerk on this item. There being no objections, the rules were suspended. RICKY WATANABE, County Clerk: Yes. I requested an opinion from the Office of the County Attorney regarding the Charter Amendment Petition submitted by the Kaua`i Rising group and I have waived and released the opinion which has been transmitted to the Councilmembers (attached hereto as Attachment 1). Chair Furfaro: Okay, so I want to make note here that this interaction is between Kaua`i Rising and the Clerk. The Clerk has received an opinion from the County Attorney, and if you could acknowledge for me one more time, and the Clerk is willing to waive that opinion? Mr. Watanabe: I am. Chair Furfaro: JoAnn. Ms. Yukimura: Is the Clerk waiving the privilege as to Councilmembers or as to Councilmembers and the public? COUNCIL MEETING 11 JULY 9, 2014 Mr. Watanabe: I believe that if it is waived to the Councilmembers, then it is also waived for the public. Ms. Yukimura: Okay. Chair Furfaro: So for the record, he indicated that it is for the Councilmembers as well as the public. Mr. Hooser. Mr. Hooser: Do we have copies available for the public? Chair Furfaro: Do we have copies available? Mr. Watanabe: We are in the process of making more copies. Chair Furfaro: Okay. I would like to take a five (5) minute break for the purpose of getting copies on what is being released. We are going to take a recess. There being no objections, the meeting recessed at 10:07 a.m. The meeting reconvened at 10:23 a.m., and proceeded as follows: Chair Furfaro: We are back from our recess. I want to recap the fact that the County Clerk seeked a legal opinion, which he has waived to both the Council and the public. Mona, you are the attorney that responded to this for us. I remember that the last discussion that we had, the last time it was before the Council, one of the issues and discussion dealt with whether the petition was a charter amendment or an initiative. That is how I put it. I referenced the "dog" or a "cat." For the public, as a charter amendment deals with the internal structure of County government, the difference in an initiative— it generally seeks to set guidelines for other agencies and/or third parties. One requires fewer signatures. As an initiative that references more like an ordinance requires a higher percentage of public signatures. You responded to the Clerk accordingly, so now I am going to turn the floor over to you. Please digest the opinion. I have particular questions on items number 5 and 6 in your report, but I will give you the floor first. You have the floor, Mona. The rules are suspended. MONA W. CLARK, Deputy County Attorney: Mona Clark, Deputy County Attorney. I think the crux of the issue before the Council is whether what is being submitted to it is a charter amendment or an initiative. As you stated, a charter amendment goes to the form and structure of the government. An initiative goes to the County's relationship with third parties. A charter amendment does not do local legislation. The Supreme Court of the State of Hawai`i has said that. The Supreme Court has also confirmed in Nakazawa v. Baptiste that you look at the substance of what is submitted to determine what it is. You just do not look at the label. When you look at the substance of what is in this Kaua`i Rising Petition as revised, it is an initiative, not a charter amendment. It does not deal with the form and structure of the government. Therefore, it does not comply with Article 24. When you look at Article 24, it has various criteria that should be in existence before the Council accepts the submission. Specifically, what is submitted to the Council must be a proposed charter amendment. That is what is stated in Article 24, and this is not. Therefore, as gatekeepers, the Council can say, "We refuse to accept what has been submitted to us because it is not, in fact, a charter amendment." I believe the Clerk also has the authority to reject it. He administers COUNCIL MEETING 12 JULY 9, 2014 the election laws. He is the one responsible for the counting the votes. He has to know what he is dealing with to determine the requisite number of votes and procedures to be followed, so I believe that the Clerk also has that authority. I was very concerned when the revised petition was provided to the County. I believe it was on June 13th and I was on vacation the ensuing week, but I rose early on Monday morning and contacted Bob Grinpas immediately and said, "What is being submitted is essentially an initiative; it is local legislation. It is not a charter amendment. This has important legal consequences." Bob Grinpas acknowledged to me that he agrees with me and he understood what it was. The Kaua`i Rising group made a logistically decision, it appears, to submit something that was not a charter amendment as a charter amendment, so it is an unfortunate situation. (Mr. Bynum was noted present at 10:25 a.m.) Chair Furfaro: JoAnn, did you have a question? Ms. Yukimura: Well, let me just say that as an attorney, when the petition first came forward, I expressed those concerns to people who had approached me about it. I do not see any real substantive change between the first petition and the second petition, so I do concur with your legal opinion, although my legal opinion does not matter as much as your legal opinion does because you are the County Attorney. I have a question about whether this issue will go into the courts. You have said in your opinion here that the County could go in to ask for declaratory judgment, but my question is do we have to? Ms. Clark: No, you do not. Ms. Yukimura: Okay, because the petitioners could as well. Ms. Clark: That is correct. Ms. Yukimura: They are the ones who desire this to get on the ballot, so it could very well be their initiative to determine if they challenge the decision of the County Attorney or of the County, as played out by the agents of the County, which are the Council or the Clerk. If they question it, they can bring this matter to court. Ms. Clark: That is correct, they could. Ms. Yukimura: Okay, thank you. Chair Furfaro: Further questions? Mr. Hooser. Mr. Hooser: Thank you. I know this is a challenging situation for everybody involved, and to say that it is frustrating to me personally, as well as many other people, is an understatement. While I respect you, certainly, and your legal authority and your legal ability, the ultimate determiner of this would be the courts. Is that correct? Ms. Clark: Well, what happens going forward depends on what the petitioner's committee decides to do. It does not necessarily have to go to the courts. The decision that is made by the various County Officials would stand otherwise. COUNCIL MEETING 13 JULY 9, 2014 Mr. Hooser: I will restate. The determination of whether or not this is a charter amendment or an initiative, or is valid or invalid, can only ultimately be decided by the courts. The County Attorney's Office could opine that they believe that it should not be there; and we, as a Council, could agree or disagree; and the Clerk, as a Clerk, can agree or disagree. But ultimately, only the court would make the determination at the end of the day, otherwise it is just an opinion. Ms. Clark: Well, in the sense that County actions have force and impact until they are challenged, and that is true of all County actions, so in this case, that would be correct as well. The ruling or whatever action is taken would stand unless it is challenged and if it is challenged, then the call to the court is the ultimate decider. Mr. Hooser: With the issue that Ordinance No. 960 (Bill No. 2491), the County Attorney also opined to the contrary and there were a number of others... I think there were nine (9) very credible, established attorneys felt otherwise, and this Council decided to pass that Bill into law. I just wanted to point out for the record that the opinion is an opinion and the County Attorney is the County's attorney. I understand that. It is no secret that myself and Councilmember Rapozo sponsored a Resolution for the lack of confidence in the County Attorney; certainly not with you personally, but with the County Attorney. It is just hard to fathom that we are here and there is a democratic process in place: people go out and get signatures; they are denied the validity of those signatures because they did not follow the rules, the letter of the law; they go out and get them again; and now, apparently, they are here saying that they cannot do it again, rather than let it be put on the ballot, let the people of the County of Kaua`i decide for themselves whether this is a charter amendment or an initiative, and vote it up or down, and then if it goes to court, it goes to court. That would be the other option. That is correct, right? You are saying by your opinion that this Council can reject it, the Clerk can reject it, or we could let the people decide and ultimately probably the courts? Ms. Clark: I think that the Charter sets forth various procedures for what has to happen. You could choose to ignore those procedures or you can choose to uphold your oath for the upholding the Charter. I think you have an obligation to look at it seriously and not just say, "We punt." You have certain obligations as officers of the County. Mr. Hooser: Right. With all due respect, I think there is room here for differences of opinion, so if we have a difference of opinion, it does not mean that we are ignoring the Charter. Ms. Clark: No... Mr. Hooser: It does not mean that we are foregoing our oath as Councilmembers if we have a difference of opinion on the interpretation of the language of Charter. Ms. Clark: Right, I was just saying that is one situation. But to simply say we do not want to weigh in or we do not have an opinion, then you would be ignoring your obligations. I think those are two different situations. Mr. Hooser: Great. Thank you very much. COUNCIL MEETING 14 JULY 9, 2014 Chair Furfaro: JoAnn, and then Mr. Bynum. Ms. Yukimura: Mona, if the Council were to just allow it to go to the ballot and say, "Okay, we do not know whether it is a charter amendment, an ordinance, or a bill for an ordinance. We will let it go." And if the Clerk does the same thing, even though in substance, it is not a charter amendment; therefore, it would require more signatures to get it on the ballot. But it goes on the ballot, and then it gets challenged in court; it does not mean that the vote is going to prevail over what it actually is. Even though people might vote for it as a charter amendment and pass it by votes, it is not going to take effect if it is not really a charter amendment and was not properly processed, right? Ms. Clark: That is right. In Fasi vs. City and County of Honolulu, the Hawai`i Supreme Court stated, "It is a fundamental tenet of municipal law that a charter may not be amended except by properly initiated and enacted charter amendments." Ms. Yukimura: So we could go through all of the trouble and expense and still have it invalidated? Ms. Clark: That is correct. There would be a huge expense involved with this. I think the Council is aware of how much it costs to go to court and defend, and the County would have to defend this submission. There are ripple effects from that as well. This calls for regulations to be adopted, so you are going to have all sorts of County personnel running around and putting together regulations, and their time, in my opinion, would be totally wasted. You will have taken a number of staff people and just dedicate them to this petition, which, in my opinion, is not a charter amendment. Ms. Yukimura: It is not really whether your opinion— this is assuming that it gets invalidated at the end by the courts. Ms. Clark: Right. Ms. Yukimura: It would make much more sense to get a determination from the court early on before we spend all of the money to put it on the ballot because that does take money, too; count votes; and people spend money for and against to advertise to get the votes; it successfully passes, but it is invalidated by the court— what use is that? Why not get a reading from the court right at the beginning before we put it on the ballot? If it is not legally a charter amendment, then everybody knows. The committee then knows that they will have to take another route to achieve what they want to achieve. It would be much less expensive for everybody. Ms. Clark: I agree. That is true. Ms. Yukimura: Thank you. Chair Furfaro: Mr. Bynum. Mr. Bynum: Good morning. I appreciate the opportunity to discuss this. This most recent opinion was requested by the Clerk? COUNCIL MEETING 15 JULY 9, 2014 Ms. Clark: That is correct. Mr. Bynum: Is it similar to the previous ones we have been given? Ms. Clark: I cannot comment on your previous opinions. Mr. Bynum: It was provided to the Council this morning around 9:00 a.m. Ms. Clark: That is correct. Chair Furfaro: It was also provided to the public. Mr. Bynum: That was my next question. So this opinion has been released to the public? Ms. Clark: That is correct. Mr. Bynum: Okay. Can the previous opinions also be released to the public that are similar in nature? Ms. Clark: I think that the privilege as far as the prior opinions rests with this body and the body would have to make the determination of whether to release. Mr. Bynum: I am sorry. Did I miss a vote by the body before I came in to release this opinion? Ms. Clark: No. The opinion was to Ricky Watanabe, so it was to the County Clerk. Mr. Bynum: If I personally asked for an opinion from the County Attorney and it comes stamped "confidential" like this, then it becomes my privilege and I can choose to waive it without any discussion with anyone? Ms. Clark: You are part of the Council body, which has the privilege, rather than you, personally. Mr. Bynum: Well, I do not want to go into when that privilege applies. That is a separate issue. Ms. Clark: Right. Mr. Bynum: It is meaningful that this has been released to the public. Was that the decision of our Clerk? Ms. Clark: Yes. Mr. Bynum: Thank you. You were talking about certain duties under our oath. Could you expand on that a little bit? Ms. Clark: Just that you have an obligation under your oath to uphold the Constitution of the State of Hawai`i, the Constitution of the COUNCIL MEETING 16 JULY 9, 2014 United States, and also the Charter. The Charter gives various expressed and implied and powers to the Councilmembers. The implied powers are what are necessary to carry out the expressed powers. You have various expressed powers related to accepting a submission to you under Article 24. Mr. Bynum: I am sorry? Ms. Clark: You have various expressed powers as far as accepting the petition under Article 24, and what has to be submitted to you under Article 24, are proposed amendments to the Charter. Therefore, you have the implied authority to determine whether what you are receiving is correct as a charter amendment. Mr. Bynum: The statements that you just made where they shared publicly prior to today... that legal opinion that you just provided. Was it shared to the public prior to today? Ms. Clark: When I saw the revised submission, I believe it was on June 13th-- the revised petition was submitted, I read through it, and then I went on vacation, but I was very concerned by what I had read. I immediately sent an E-mail to Bob Grinpas. Mr. Bynum: Which is attached? Ms. Clark: Yes. It was saying that I was very concerned that this is still local legislation; it is an initiative, not a charter amendment. Mr. Bynum: The last time we had this on the Council floor, I talked, and you should have in your records, a letter I sent on April 26th when I saw the first petition requesting the County Attorney to do the legal review as anticipated in the Charter and to share the outcome of that review with the petitioners. Do you recall that letter or that discussion? Ms. Clark: The County Attorney has the opportunity, but not obligation, to weigh in after a validly submitted charter amendment goes before the Council. Mr. Bynum: Are you aware of the correspondence where I encouraged the County Attorney to exercise that option and inquired about whether the County Attorney intended to do that? Ms. Clark: I think that I... Mr. Bynum: This is just going to lead to the next question, Mona. Ms. Clark: Okay. I am aware that you said that, yes. Mr. Bynum: So does this letter; this E-mail, constitute that notification as anticipated in the Charter? Ms. Clark: No. It is not really because that occurs after the votes have been counted and you have a valid... COUNCIL MEETING 17 JULY 9, 2014 Mr. Bynum: So this is just a heads-up? Ms. Clark: This was a heads-up... Mr. Bynum: It does not constitute the notification that the Charter anticipates may occur from the County Attorney. That is my question and you just said "no." Ms. Clark: No, it is not. Mr. Bynum: So that has not occurred either with the first petition that was submitted or the second? Ms. Clark: That is correct. I have told the petitioners... Mr. Bynum: Okay. For my next question, now that this is public, I can say this out loud, right? You are citing Nakazawa vs. Baptiste and I said at the last time I was at the Council that again, I just received the opinion moments before we got on the floor, so it makes it very awkward. It would have been really nice if had this twenty-four (24) hours in advanced. I said last time that... Nakazawa vs. Baptiste— that I may be convinced by the law that we should have a mechanism in place to determine a "cat" or a "dog," but we do not. Why in after Nakazawa vs. Baptiste and the legal precedent that you are saying, why did the County Attorney's Office, the Charter Commission, or some Councilmember not look and move to change the Charter to clarify these issues. The Charter does not call for this type of review. This is a new standard that we are applying this time. You are saying two things that I have difficulty with. The first one, the most, is that the Clerk somehow is envisioned by the Charter of making this determination if it has legal sufficiency. I do not see that at all and I think that would be a huge mistake to put that responsibility on to the County Clerk when his responsibility has primarily been— like he fulfilled in the first round, "does this petition meet the parameters of the law in terms of its form and content?" The first time around, it got rejected because the signatures were not on there and that was clearly a Clerk's kind of decision, but now to say that— anyway, for the Council to have that authority is a new concept to me and you say that we do and you are putting that in law. In fact, you are even going stronger and saying "not only you do, but you have certain duties under your oath," which is code word for "you have a responsibility to reject this" is the way I read that. Do we have a duty under our oath to uphold the law? Ms. Clark: You do have a duty to uphold the law, yes. Mr. Bynum: Do we have a duty under our oath when we believe law violations have occurred to report them? Ms. Clark: I think that is consistent, yes Mr. Bynum: Okay. I did not understand your whole discussion about a certain duty under our oath because I think most of us understand that pretty clearly and I think Councilmember Hooser outlined clearly that I have to look at your opinion and be very, very cautious about taking things that are different than my County Attorney's opinion. But I have also been around here a long time and relied on County Attorney opinions that were later overturned and not upheld, and then where am I? My duty is to use my brain, my heart, and COUNCIL MEETING 18 JULY 9, 2014 my mind to make the best judgment with the information that I have before me. Is that correct? Ms. Clark: That is correct. Mr. Bynum: Okay. I will have to read this more thoroughly, but I said last time that we have a process that is outlined and we have a history of how we handled it. I believe the Clerk's responsibility right now is to start counting the votes and see if it meets these specific criteria. If there this and I believe the responsibility is to start counting the votes and see if it meets specific criteria and to delay that, especially with this late hour, would be irresponsible and not something that I want to do. Now, the separate issue about whether this meets these legal criteria— we have never established the mechanism to do that and it has never been applied previously. If we had that concern, we have had several years to try to address that in our Charter or to come forward and assertively say, "Hey, Nakazawa vs. Baptiste makes us need to look at the Charter." Is that kind of analysis not post a Supreme Court decision part of what the County Attorney's Office should do and let us know if this new Nakazawa vs. Baptiste decision makes part of our Charter... need to be clearer. Ms. Clark: I think that... Mr. Bynum: That is kind of a convoluted question. Let me withdraw that one. What I am saying is that I am comfortable applying the standards that we have applied previously. I believe that the votes should be counted. Maybe somebody wants to bring a legal action and say, "Wait a minute. This should not go on the ballot for `x' reasons," but I do not think we should stop the vote counting from occurring... Mr. Hooser: Signature counting. Mr. Bynum: Yes, signature counting. I am sorry. I was having flashbacks to Florida or something. Ms. Clark: I think that there are expressed and implied powers in the Charter and I think that they are implied powers because the drafters cannot anticipate all situations. Clearly, the Charter anticipates that the correct document or type of document is going to be submitted under the correct section. When that does not happen, then you have to figure out how the Council and the County Clerk can carry out their expressed powers. The County Clerk has to count the votes, but what votes does he count if he has got an initiative? Mr. Bynum: Signatures. Ms. Clark: Yes, signatures, sorry. If he has a document that is an initiative, twenty percent (20%) is applicable. If he has a document that is an amendment, five percent (5%) is applicable. How can he carry out his vote counting ability unless he determines what is before him? Chair Furfaro: His signature counting. Mr. Bynum has you talking about both, but it is signature counting. Ms. Clark: I apologize, "signature counting authority." So that is implied in that power. COUNCIL MEETING 19 JULY 9, 2014 Mr. Bynum: I understand the legal argument that you are making and I am very pleased that this was being released by somebody. I think it means that the previous, and I am going to ask that in writing, and ask the body that the previous opinions we have received in the last few months related to this. I am going to repeat and ask that the question I posed to the County Attorney be responded to. Ms. Clark: I would be happy if I understood your question. I think... Mr. Bynum: For the sake of time, I will move on. I understand your legal argument as it is now. I am struggling with what my implied responsibility is as you have said. I want to say that I am really disappointed that because this did become a very clear issue and it was discussed at the Charter Commission and Charter changes have been discussed, that the petitioners, in my opinion, should have only put forward the Charter portions that clearly were Charter, or collected enough signatures for an initiative. I am disappointed that this group, which has at least now become sophisticated enough to understand these issues, did not do that is what you are saying they did not because I have not reviewed the revision like I did the original. I agree with your statement that it is an unfortunate set of circumstances, but I am still being asked about whether I should apply a new standard based on this opinion that we have just recently, one (1) hour ago, received. I am not prepared to make that vote right now without some time to ponder it, some follow-up discussion, and maybe some more public testimony; just based on an opinion that I was given. I would like to see the previous opinions released. I believe part of my understanding is that once you waive... Ms. Clark: You have issues as far as who is doing the waiving. The County Clerk is doing the waiving versus this body doing the waiving. I have not examined that issue in detail, but it is your privilege and if you choose to waive it... Chair Furfaro: I need to see if Mr. Bynum would yield the floor for other questions. Go ahead and summarize if you can. Mr. Bynum: If I could ask one more, I will be done for now. Chair Furfaro: Go ahead. Mr. Bynum: Is there a motion on the table? Ms. Clark: I believe I was just called up. Mr. Bynum: Are we at the same place where a motion to receive is what we last time, which would move the signature counting to the Clerk? Is that the decision that is before this Council? Ms. Clark: That is one of the motions that can be made, yes. Mr. Bynum: Okay. Thank you. COUNCIL MEETING 20 JULY 9, 2014 Chair Furfaro: Okay. I have given Mr. Hooser a chance to talk, JoAnn a chance to talk, and Mr. Bynum a chance to talk. Mr. Hooser wants to speak again, but Mr. Kagawa has not had the floor. I am going to go to Mr. Kagawa. Mr. Kagawa: Thank you, Mona, for your opinion. You know the last time we received it, it went to Ricky, and I guess he started the process; the Clerk. Then at that meeting, I think we asked for the County Attorneys to look at whether it was a "cat" or a "dog"; whether it was an "initiative" or a "charter amendment?" In that time until you have this here, where we are clear as to where the County Attorney sees this amendment. Did you make communication with the group to let them know as far as what you found out? That changes everything, right? Ms. Clark: I met with Bob Grinpas. I ran through not only the initiative versus charter amendment issues, but I ran through a number of other issues that exist within the petition. They are very lengthy to go through all of them. Mr. Kagawa: Yes. Ms. Clark: Then after the revised petition was submitted, that was done on a Friday, June 13th, and on Monday morning prior to the opening of business here, I had an E-mail off to Bob Grinpas saying, "This is local legislation. It is proper for an initiative; it is not proper for a charter amendment." Bob responded acknowledging that he agreed with me, so the group presumably has known that through this entire process and made a decision of some sort to proceed this way anyway. Mr. Kagawa: I appreciate your communications with Bob. I think it is great and I commend you for your work. I think that for the group, it is just kind of late for them to try and get the additional fifteen percent (15%), so I guess they are just proceeding and what way they can best handle having what they want done. You can see the reason for both sides. I agree with what you said that it is not a charter amendment. What motion would you need so that if we feel like it is not in the best interest to move this forward as a charter amendment? Ms. Clark: I guess you would make a motion to reject it. Mr. Kagawa: Okay, so a motion to reject would stop the process and Ricky, our Clerk, would not go and count. What options are there for the group at this point if we move to reject? Can they go and try to get the twenty percent (20%) signatures or can they amend their amendment so it just becomes a charter amendment? Are those some of the options? Ms. Clark: The procedures for charter amendment and initiative are different, not only as far as the percentage of signatures that need to be obtained, but also when you have an initiative; there is a procedure as far as affidavits that have to be signed by the circulators. I do not believe that was done because they were going to submit a charter amendment. Mr. Kagawa: Okay. Thank you. COUNCIL MEETING 21 JULY 9, 2014 Chair Furfaro: Mr. Chock, did you want to speak now? If not, I will go a second time for other members. Mr. Hooser. Mr. Hooser: I have a question of process, I guess. Right now, the rules are suspended, I am assuming. Chair Furfaro: Yes. I announced that the rules are suspended for the County Attorney. There were no motions made. Mr. Hooser: I am just trying to get clear on the process. The other process question is does the County Attorney's Office have the opportunity, following along with what Councilmember Kagawa said, to work with the petitioners to suggest amending the petition, so that it would result in a form acceptable as a charter amendment to the County Attorney's Office? Ms. Clark: First of all, I think that would be a very unwise decision. The content that would be appropriate for a charter amendment is very minimal in this petition and what is there as far as creating the office for the Administrator is incorrectly done. The Administrator is placed under the purview of the Council. The Council is a legislative body. It violates the separations of powers to place this entity under the Council, so everything is invalid. Mr. Hooser: My question is, is there an opportunity within the law, the charter requirements, that the County Attorney could work with the petitioners to suggest amendments that would make it satisfactory to the County Attorney to qualify as a charter amendment; whether or not the County Attorney would want to do that or not or whether or not it is a whole lot of work or complicated? Is there an opportunity for that to happen? Ms. Clark: Let me refer to Article 24. Article 24.01(b) states by petition presented to the Council, so it is after it has been presented to Council that the County Attorney would be weighing in or not. You have the opportunity to accept or reject here, so it would not necessarily get to that stage where the County Attorneys would be working with them. Mr. Hooser: So if the Council, in its wisdom, voted to receive this petition, the County Clerk would then proceed to count the signatures, and then the County Attorney would have the opportunity, if the County Attorney wanted to, to work with the petitioners to amend the petition to make it satisfactory to the County Attorney's Office. Is that correct? Ms. Clark: Not necessarily, in that the County Clerk can also reject the petition because it is not a petition for a charter amendment. Mr. Hooser: Okay. I will rephrase. If the Council voted to receive, and if the County Clerk decided not to reject it, but rather to count the signatures, then the County Attorney's Office would have the opportunity, if they so desired, to work with the petitioners to amend it so it would be in a form acceptable to the County Attorney's Office. Is that correct? Ms. Clark: The County Attorney would have an opportunity to weigh in. COUNCIL MEETING 22 JULY 9, 2014 Mr. Hooser: Right, so if the County Attorney wanted to do it, the County Attorney could weigh in and suggest amendments at that point? Ms. Clark: I think you have a number of questions that would have to be addressed before the County Attorney made any such movement. Mr. Hooser: It feels like I am pulling teeth here, but I believe that the Charter allows the County Attorney to weigh in and make those suggestions if it moves forward, as I described. Ms. Clark: The County Attorney can weigh in if it were accepted and moved forward, but that involves in it a decision by this body that what you have before you is a charter amendment. Mr. Hooser: I premised my question on if we voted to receive it, and it is possible if we had communication from the County Attorney that they are willing to work with the petitioners, that would give us more confidence, some of us, to receive it, knowing that the County Attorney was going to actively/proactively engage the petitioners in and tidy it up or whatever. My final process question is the timing of it. If no decision was reached today, if the decision was deferred, perhaps to seek additional legal advice or just to think about it; is that possible and what type of timeframe are we looking at? Ms. Clark: If you decide to defer a decision? Mr. Hooser: Let us say we wanted to wait a week to seek other legal advice or think about it. Is that doable? Is it possible to meet the deadlines? Ms. Clark: As far as the County, if there would be adequate time to count if you defer? I do not know. That would be more of a question for the County Clerk whether he would have time to process it. Mr. Hooser: Thank you very much. Chair Furfaro: JoAnn? Ms. Yukimura: First of all, is it not a violation of the County Attorney's responsibility to serve as advisor to the petitioner's group? Ms. Clark: I think it is very problematic to have the County Attorney weigh in on the type of substantive issues that are involved here. This is not a minor, change one sentence to bring yourself into compliance with a specified term. This is major revision with a document that has multiple problems, and so what you would have is the County Attorney essentially advising the petitioners, and then you would end up undoubtedly in a lawsuit and the County Attorney is going to have given advice of a very substantive nature against... Ms. Yukimura: It seems like you would be in a conflict of interest because you would be advising at least two bodies that have conflicting interests. COUNCIL MEETING 23 JULY 9, 2014 Ms. Clark: I think in this particular situation, with the magnitude of the changes that would be required, there would definitely be a conflict. Ms. Yukimura: Furthermore, even if you were to find a way to change it to a charter amendment, it will still be invalid because it was not properly a charter amendment when it was accepted, and therefore, the procedures for accepting it were not properly followed, right? Ms. Clark: I believe that is correct. It should not be accepted unless it is a charter amendment because essentially what is happening is if you go the charter amendment route, you are usurping all of the County Council's authority under Section 22 for processing of initiatives. The County Council has a very substantial role in processing of initiatives and that is totally being done away with if it is accepted as a charter amendment. Ms. Yukimura: What I am saying and another way of putting my question is even if after receipt and certification of the signatures you were to advise the petitioners' group to change it into something that would be legitimately a charter amendment, and even if it were to be voted on by a majority of people, it would not be a valid charter amendment because of the procedure that was not properly followed. Ms. Clark: I think that is true. I also think that what you are going to end up with is a document that would bear very little relation to what was actually submitted and therefore, there would be questions as far as whether the signers had any possibility of knowledge of what was going to be the eventual outcome. Ms. Yukimura: Right. The change would be so substantive from the petition that was passed around that the court would not... Ms. Clark: There would be very little relationship between the two documents. Ms. Yukimura: Right. I have one more question about the Council's power or obligation to look substantively at whether a proposed charter amendment is, in fact, a charter amendment. My reading of the Charter is that it is more a ministerial function and that the substantive inquiry is done by the Clerk out of necessity because the Clerk has to determine how many signatures are required, and there is a difference between the signatures required for a charter amendment and the number of signatures required for an initiative. Therefore, the Clerk cannot proceed to even start validating or certifying the signatures until he knows how many signatures are required and in order to know that, he has to make a determination as to whether the petition is in fact a charter amendment and an initiative. Ms. Clark: I think that the Council holds the legislative power for the County. I think that means that they have to identify when something is legislative, so that their power can be properly executed. I think that is an implied authority, but I think you have the expressed authority set forth in Section 24.01, which is that a proposed amendment must be submitted. Ms. Yukimura: Must be received? What is the language? COUNCIL MEETING 24 JULY 9, 2014 Ms. Clark: I will pull it for you in just a second. "Amendments to this Charter may be initiated only in the following manner: by petitions presented to the Council." It says, "Amendments to the Charter shall be initiated only by the following: by petition presented to the Council." So the Council has authority to accept or reject that and it has to be an amendment. You cannot initiate a change to the Charter unless you have a valid amendment and the Supreme Court of Hawai`i has made it very clear of what a valid amendment is and it goes to the form and structure of the County government. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Mona, first of all, I want to thank you for two (2) weeks ago, working with the petitioners on seeking what suggestions might mean in framing or put forth what meets the requirements of a charter framework, versus what we seem to have here in your opinion as an initiative. I just want to say thank you very much for your work. The County Clerk has had to leave. He made this release. Next year, Kaua`i is hosting the National Association of Counties, so he went to attend the current meeting and catching a plane, but he has made that known that he wanted his opinion released. If there are no more questions, I am going to give Mr. Bynum the floor and take public testimony after that. Mr. Bynum: I want to go through this now that we can talk about these legal issues. Are you basing this opinion primarily on Nakazawa vs. Baptiste? Did the Mayor sue the County Attorney or the County Attorney sued the Mayor? Which one was it? Ms. Clark: The County Council and the Mayor were both parties, I believe. Mr. Bynum: I am sorry? Ms. Clark: The County Council and the Mayor were both parties, and then I guess the court dismissed out the one that would have done away with... Mr. Bynum: So prior to that citizens' petition being placed on the agenda, was there a determination about whether it was a charter amendment or initiative done by the Clerk or the County Attorney's Office? Ms. Clark: I think as in many questions of law, they are raised at certain points of time and the law is established at that point in time. Mr. Bynum: At that time, this provision that is in the Charter— I just listened to this whole debate about basically you and Councilmember Yukimura agreeing that our Charter is flawed, right? Our Charter does say that "such petitions shall designate and authorize not less than three, no more than five, of the signatures thereto to approve any alteration or change or form or language or any restatement of text of the proposed amendments which may be made by the County Attorney." So our Charter, through all of these failed initiatives and legal battles; this has been in our Charter. Did that happen during Nakazawa vs. Baptiste? Do you know? COUNCIL MEETING 25 JULY 9, 2014 Ms. Clark: I think that basically, the County Attorney's Office has not weighed in previously and made suggestions as far as changes due to the conflicted situation or having statements and guidance it has provided to two opposing parties. Mr. Bynum: I do not want to take too much time. That is when we were told by the Supreme Court, "Hey, you guys have to decide if this is a cat or a dog to avoid this in the future," right? What happened when the next initiative came up? Are you aware of what happened when the next initiative came up? Ms. Clark: I believe the next initiative also got thrown out. Mr. Bynum: Did the County Attorney give any feedback to the petitioners' group in that instance as was envisioned by the Charter? Ms. Clark: I do not believe so, but I do not know. I would imagine that... Mr. Bynum: Was Special Counsel... Chair Furfaro: Excuse me, Mr. Bynum. That was three times that you have not allowed her to finish her answer. Please let the County Attorney complete her answer. Mr. Bynum: Sure. Ms. Clark: I think that what is done in the past is not binding; the fact that the County Council has let things go through, and then they have been thrown out. That seems, in and of itself, pretty good evidence that the procedure of allowing something to go through is a very costly and unfortunate procedure. Mr. Bynum: Okay. So the next charter initiative— there was a lot of Special Counsel advising the Council... a lot of time and money, but nothing... no dialogue with the petitioners. Given that was a number of years ago, and all of those issues are settled, could we release the opinions and the Special Counsel reports about this very issue that this County engaged in and spent a lot of money a number of years ago? Would that be appropriate to release for the public and for people to understand? Ms. Clark: I do not think I can opine on documents that I have not seen or know what is in it. Mr. Bynum: Well, I am going to ask that question of OIP because there is a history of this County engaging in these issues. I will close with this— this is my read— the portion of this that is clearly Charter is establishing an office, right? You are saying that it is a problem of where it is established, and I agree. That clearly would be a Charter thing, right? If the community wanted to say, "We want you to establish and office and the Administration that has regulatory control over environmental issues." That would be a charter amendment. Would you agree? COUNCIL MEETING 26 JULY 9, 2014 Ms. Clark: Right. I think the problem is that if you have two or three sentences out of an eighteen (18) page document, do the signers actually know what they are signing for if something is so totally different? Mr. Bynum: But that would be Charter, correct? Ms. Clark: Establishing an office would be Charter. Mr. Bynum: I just want you to play this scenario out with me if we do what I think is the appropriate action for us at this juncture— it is my opinion— and receive this to start the signatures being counted. I am not saying there are no other ways to look at these legal issues, but we are in a constrained timeframe. Let us say we do that and the County Attorney comes back and says, "Virtually, all of this is no-go, except establishing this office." And the petitioners said, "Okay, we agree. We will take everything else out except establishing this office," so it makes the Charter criteria. Then we proceed to the election... that could be an outcome, could it not? Ms. Clark: I think that there will be issues as far as whether the people who are signing the petition had notice that that sort of massive change could occur. Ms. Bynum: There might be issues, but that could be an outcome. There is always "might be issues." I am just saying that this... we could follow the one thing we know the Charter said or anticipated— if we follow that, there is a potential outcome where a successful charter amendment that establishes a regulatory office at the Administration could be the outcome. Then the Council can pass ordinances, right? They have an office ready to work. I am just playing out the scenario. Chair Furfaro: I have to tell you that I have been very lenient in us playing out scenarios and drifting from the agenda item, so if you could wrap it up, I would appreciate it. Mr. Bynum: I am waiting for an answer. Chair Furfaro: I also want to say that if Mr. Bynum wants to OIP to get a question about previous opinions, then that would only stimulate a new agenda item for Executive Session. Mr. Bynum: Do I still have the floor, Chair? Chair Furfaro: Yes, you do. Ms. Clark: I think taking action premised on the County Attorney's Office weighing in is simply going to result in delaying the process because I think it is highly unlikely that the County Attorney's Office is going to rewrite this legislation for the petitioners. Mr. Bynum: With all due respect, that is not the question that I asked. I did not ask what the County Attorney might do or could do. I said under the law, that is a potential outcome, yes? Ms. Clark: It is a potential outcome. COUNCIL MEETING 27 JULY 9, 2014 Mr. Bynum: Thank you very much. In terms of asking OIP, any citizen in this State can ask OIP whether a document that exists is confidential or not, right? Ms. Clark: I have no problem with whatever you want to do as far as contacting OIP. Mr. Bynum: I do not know that it becomes a Council issue... Chair Furfaro: To release it is a Council issue; it is not a citizen's issue. Mr. Bynum: But OIP can opine whether it is a public document or not. I would not even ask the County to release it if OIP opined it was not. My understanding is that office exists for that purpose, to advise citizens about what a public document is and what is not. Am I accurate? Ms. Clark: That is one of the things that the office does. Mr. Bynum: Okay. Thank you. Chair Furfaro: Okay. Whatever that opinion might be, it still would trigger a new posting for an Executive Session on the release, right? Ms. Clark: Yes. Chair Furfaro: Thank you. What I would like to do is get to a point—I suspended rules so that we could have the Clerk have his opinion released and we could get feedback from the County Attorney on her legal opinion. I do not have a motion and I would like to have a motion before I take public testimony. The meeting was called back to order, and proceeded as follows: Mr. Hooser moved to receive C 2014-199 for the record, seconded by Mr. Bynum. Chair Furfaro: Did you want the floor? Mr. Chock: I just had a question. Chair Furfaro: For the County Attorney? Mr. Chock: No, just a process question. It is appropriate that we have our petitioners present as well to ask and hear their side? Chair Furfaro: To hear their side, it is not appropriate. To give them time to give testimony on what they have submitted is fair, but I needed a motion first before we can ask for that testimony. That was my extension of suspending the rules to take the legal opinion. When we come back, I will be taking testimony, but we are going to take a ten (10) minute recess now. Thank you. We are in recess. COUNCIL MEETING 28 JULY 9, 2014 There being no objections, the meeting recessed at 11:21 a.m. The meeting reconvened at 11:37 a.m., and proceeded as follows: Chair Furfaro: Do we have a list of people that wish to speak and testify? May you read the names for us, please? Ms. Fountain-Tanigawa: Council Chair, currently, we have one (1) person that is registered to speak. His name is Bob Yuhnke. Chair Furfaro: For people in the audience, if you want to speak, you need to sign up. I took the recess so that you can sign up. Is there no one else wanting to speak? Please sign up, so I can get those over to the Clerk and read names. Bob, we will be with you in a moment. Mr. Kagawa: I think all of us are planning to attend to forum tonight, so is it the plan of the Council to try and at least get done by 5:00 p.m. or so? Chair Furfaro: That is our intent to finish our business today so that we can attend the forum. Mr. Kagawa: We should set that as a goal then. I think everybody would like to even maybe freshen up a little bit. Chair Furfaro: We have a very full schedule, but yes, let us try to do that. Mr. Kagawa: Thank you. Mr. Chock: Chair, may I have a personal privilege? Chair Furfaro: Sure. Mr. Chock: Chair, I just wanted to mention that as I walked in this morning, I saw that the Elections Division has setup a drive-in voter registration. I know a lot of people watch this show, so maybe we can encourage those who are not registered to vote to come out and drive through and register. Thanks. Chair Furfaro: I see Lyndon back in the corner. Thank you for all of the effort in the Elections Division. Mr. Chock: We just have a bet of how many people are going to come through. Chair Furfaro: Okay. JoAnn, do you want a personal privilege? Ms. Yukimura: Yes, please. Chair Furfaro: Go right ahead. COUNCIL MEETING 29 JULY 9, 2014 Ms. Yukimura: I just want to thank Lyndon and our Elections Division for doing this extra effort to get people registered to vote. Thank you very much. It is wonderful. Chair Furfaro: Mr. Hooser. Mr. Hooser: I am going to tag along on my two (2) colleagues. The deadline, I believe, is tomorrow, probably at the end of the day. So for everyone watching now, tomorrow is the deadline for the primary. Thank you. Chair Furfaro: Mr. Kagawa. Mr. Kagawa: The deadline is tomorrow for the primary and for the general, they will have another deadline? Chair Furfaro: That is correct. Mr. Kagawa: Okay. Chair Furfaro: Again, Lyndon and your staff at Elections, hats off for this new drive through registration. Terrific. We will call up Bob first. Ms. Fountain-Tanigawa: The first registered speaker is Bob Yuhnke, followed by Michael Schultz. There being no objections, the rules were suspended. BOB YUHNKE: Thank you, Mr. Chairman. My name is Bob Yuhnke and I have served as a consultant to the Kaua`i Rising team, which is the petitioner team responsible for circulating this petition. We made substantial revisions to the charter amendment after it was rejected by the County Clerk the first time. We saw that as an opportunity to address some of the issues that were raised here by the Councilmembers on May 28th and by the County Attorney. The County Attorney did provide some feedback to Bob Grinpas, who is a local, licensed attorney. We also consulted with a licensed attorney off-island, who has experience with this work. With that feedback, both from the County Attorney and two other attorneys, we made substantial revisions to the charter amendment to address the issues that were raised. The primary issue that was raised was that the original version directly regulated the conduct of third parties, which was clearly not within the scope of what belongs in a charter amendment and we agreed with that. We took out the provisions that directly regulate third party conduct and we made changes that tried to preserve the decision-making process that we were creating. The objective here is to create a process that provides protection of the public based on the precautionary principle, which is an approach to regulation that is different than traditionally has been followed by the Federal government and the States, where traditionally, the regulatory process has placed the burden on the public to demonstrate that there is harm before some regulatory action is taken. Here, we were trying to modify that process to make it clear that the companies that benefit from conduct that potentially causes harm to the public have the burden of showing that what they are doing is safe. That is a fundamental shift in the regulatory process and it is one that we felt fit within the framework of Nakazawa because it has to do with the powers and duties of the government in relation to the people, which is what Nakazawa said is appropriate for a charter amendment or a charter. COUNCIL MEETING 30 JULY 9, 2014 We also are attempting here to make sure that the decisions that get made on these issues are based on the best scientific expertise available on the planet. Ms. Fountain-Tanigawa: Three (3) minutes. Mr. Yuhnke: This is a place with very limited access to experts, and experts in this field of pesticides are few, far between, and hard to come by. We do not have a university here. We do not have a tradition of an environmental agency that has staff with experience. All of that is missing. We had to fill that gap, so we attempted to do that by creating a role for independent panels of experts to be brought into play; not to make the decisions, but to evaluate the evidence and to provide guidance to the County Council and ultimately all of the major decisions in this charter amendment were left with the Council. We were not taking powers away from the Council; we were creating a decision-making framework that would provide information to the Council for its final decisions. All of this has to do with powers and duties of entities being created within the context of the Charter. This is what the State Statute in Section 46-1.5 says is appropriate for the Charter. The third thing we were trying to accomplish was to make it clear that the costs of this system that would be established would not be imposed on the community that is potentially harmed by exposure to the toxic pesticides. The goal was to make sure that those costs are born by the beneficiaries of using the chemicals that could potentially cause harm. So if they want to expose the public to these chemicals in order to make profits, they have an obligation to show that what they are doing is not going to cause harm. It is their burden to pay for that process. Those were the three primary objectives of what we are trying to accomplish. We felt that those objectives were appropriate for a charter amendment because they had to do with powers and duties of entities within the County. It is important to remember that the Nakazawa decision did not reject the tax cap that was passed by the voters as a charter amendment on the grounds that it did not belong in a charter. The Supreme Court said this was appropriate material for a charter amendment. What it ultimately concluded was that it took away taxing powers that the Constitution had given exclusively to County Councils, and for that reason, it was flawed. Ms. Fountain-Tanigawa: Six (6) minutes. Chair Furfaro: Bob, that is your six (6) minutes, but I will allow you, at my discretion, a little more time to summarize. Mr. Yuhnke: Thank you, Mr. Chair. Based on that Supreme Court decision, what the court basically said was that what did not belong in a charter was a complete regulatory scheme, and we have not created a complete regulatory scheme here. We have made it clear that there is a role for the Council to adopt ordinances in order to implement this approach to regulation and that some of the details need to be filled in by regulations to be adopted by the new administrator of Environmental Health. This is not a complete regulatory scheme, so we felt that it did fit within what the Supreme Court said belongs in a charter. The County Attorney was talking about procedures. The Charter specifies procedures. We have followed every one of those procedures in terms of submitting the language, the petitions, and what is on the petition. The County Clerk found that the first petition language was not appropriate, so revised that and adopted their language. That is now in the current set of petitions. The Charter also spells out a procedure where the County Attorney has an opportunity to provide us with feedback. We could not get clear guidance from any attorney that what we had put COUNCIL MEETING 31 JULY 9, 2014 into the charter amendment definitely did not belong in the Charter. One of the things that the County Attorney has acknowledged here today is that there are pieces of this document that belong in a charter. There is no question about that. So the question is if there is a gray area, how does that get resolved? Chair Furfaro: Thank you. I have been as liberal as I can be. Now, let me see if there are questions. Mr. Yuhnke: Thank you, Mr. Chair. Ms. Yukimura: Mr. Yuhnke, thank you for being here. When there are gray areas— if there is any piece of it that is going to be in the nature of a bill for an ordinance, then would you not say that under the Charter, it requires the larger number of signatures? Mr. Yuhnke: Yes. Ms. Yukimura: Okay. If it is that, you need more signatures. If it is mixed in, you need more signatures. I said at the very first meeting that I admired some of the things that are in here. I thought they were very creative and thoughtful. Why with you not advise the group, if there is any chance that it is a bill for an ordinance, to go through the initiative process? If you think you can get enough votes on ballot, why would you not want to go and get the number of signatures that are required? It is a great precursor to getting the education and public support for the eventual vote. Ms. Yuhnke: I think if we had that kind of advice and insight from the beginning when we started in March, it might have made sense. What we were left with was eighteen (18) days to collect signatures, so the calculus that had to be made was "do we take things out that arguably could be appropriate material for a charter amendment and leave that for an ordinance?" Or "do we include it in something that clearly has matter that is appropriate for a charter amendment with the possibility that ultimately it might be stricken out?" Ms. Yukimura: But if it is a bill for an ordinance in any way, I think the courts will find that you are required to have the twenty percent (20%) and all the effort that you are putting in is going to be to no avail if it eventually gets invalidated. Mr. Yuhnke: I do not see that. I think the law of severability makes it clear that the courts could strike what is inappropriate for a charter and leave the remainder. Ms. Yukimura: I do not believe it will meet the requirements for a charter to be processed, and therefore, you will ultimately be found to be invalid and you do not have to believe me, but I think you have to really look at that possibility, in terms of leading people towards an end if you spend a lot of time and money and do not get towards that end. Thank you very much. Chair Furfaro: Any other questions for Mr. Yuhnke? Mr. Chock. Mr. Chock: Thank you. You mentioned that you spoke to some Counsel on this, one of who was Mr. Grinpas, and we have some form of his COUNCIL MEETING 32 JULY 9, 2014 response. There was another attorney. Do you have that opinion as well or that response as well? Mr. Yuhnke: Well, I would say that was a confidential communication with that attorney and it is not something that he expected would be shared. What I can tell you is that we did not get a consistent opinion from all the attorneys that we spoke with. I think the key point is that in the Nakazawa case, the court did not throw out the tax cap on the grounds that it did not belong in the Charter. The court said it was appropriate material for the Charter and the language that the court used discussed the whole concept of what is appropriate for a charter and what is not appropriate in theoretical terms. The court did not apply that language to throw out the Charter, so it is not clear guidance. When you speak to different attorneys, the basic advice we are getting is that the court did not draw a red line in the sand about what belongs in a charter and what does not and we cannot tell you what the answer is. Chair Furfaro: Okay. Any other questions for Mr. Yuhnke? Ms. Yukimura: I have one more question. Chair Furfaro: Go ahead, JoAnn. Ms. Yukimura: Mr. Yuhnke, do you not think that it would be better for everyone if we settle the question of whether this is a charter amendment or not, prior to it getting on the ballot? Mr. Yuhnke: I think because it clearly has matter in it that belongs in a charter, we should pass what belongs in the Charter, and if some of it is stricken later, we still have changes to the Charter that allows this whole issue to be addressed. Ms. Yukimura: Do you not see that the process for initiating a charter, if that is not followed then the whole thing will be invalidated? Mr. Yuhnke: Well, the process has been followed. What you are talking about is the substance. Ms. Yukimura: The process is not going to be followed if it is, in fact, a bill for an ordinance and more signatures are required. Mr. Yuhnke: The process would not be followed for an ordinance, so anything that falls into the category of "an ordinance" would be stricken. Ms. Yukimura: I do not believe there is any way for that to happen. Thank you. Chair Furfaro: Okay. I want to make sure we understand that during this period, I am allowing question and answer and not discussion between the Councilmembers on their opinions. She posed a question to you and you responded with your answer. Thank you. Ms. Yukimura: Thank you. COUNCIL MEETING 33 JULY 9, 2014 Chair Furfaro: Mr. Bynum, do you have a question? Mr. Bynum: Mr. Yuhnke, I referenced before we had two citizen Charter Amendments overturned. Are you familiar with the second one related to the Planning issues? Did you look into that in any way? Mr. Yuhnke: Was this in Kaua`i County or are you talking about the Fasi case? Mr. Bynum: I forgot the name of the court case, but there was a citizens' initiative passed that put all Planning decisions regarding future resort development in the hands of the Council until we passed an ordinance, and we did pass an Ordinance, and then there was a court challenge, and I believe both the Ordinance and the Charter Amendment were overturned; although, I have yet to receive an in-depth briefing about the outcome of this case. It was an overturn of a citizens' Charter Amendment. Chair Furfaro: Are you familiar with that case? Mr. Yuhnke: I am not familiar with that case. Mr. Bynum: Okay. That is the question. Nevermind. Thanks. Chair Furfaro: Mr. Yuhnke, thank you very much. Are you meeting with me tomorrow at 11:00 a.m.? Mr. Yuhnke: Yes. Chair Furfaro: Okay. I will see you then. Mr. Yuhnke: Thank you, Mr. Chairman. Chair Furfaro: Thank you very much. Next speaker. Ms. Fountain-Tanigawa: The next speaker is Michael Schultz, followed by Sandra Herndon. MICHAEL SCHULTZ: Aloha Council. It is good to see you again. Michael Schultz representing Kaua`i Rising. I think the thing that is most on my mind right now is that the process that we are involved in in the charter amendment approach is designed for the people to have a vehicle to put something on the ballot on their own initiative. My understanding is that the Council has the opportunity to do that or maybe the Charter Commission can do that, but the whole thing that we are talking about is the people's tool to exercise the democratic process. Somehow, that seems to be getting lost in the shuffle here somewhere that that is a significant piece of this democratic process. I know, as having been involved in this process from the beginning, we initially met back in November and we went over with the County Clerk and the Election Commission, this seven (7) page document, which is the "Charter Amendment Petition Guidelines for 2014." We adhered to everything on these seven (7) pages. I forget the exact date, but we were here the last time and the same discussion was going on, and at the end of the day, the Council chose to receive the first four thousand (4,000) plus signatures that we submitted. Since that time, nothing has changed other than the following day COUNCIL MEETING 34 JULY 9, 2014 after you chose to receive it, we got the communication from the Clerk's Office that he was rejecting all of the signatures. We went in and we met with them and asked, "What happened? We followed every single thing you went over with us and they pointed to the small print on the bottom of page 7 that says, "This fact sheet is for informational purposes only and that the quote describing the requirements of 24.01 from the Kaua`i County Charter had somehow omitted the facts that they used to throw out all of those signatures." We went back and we did it again. But every step, we have done it in good faith. We have followed all of the guidance we have gotten in terms of Mona giving us guidance. Mona specifically said that she was not willing to meet with the five (5) member committee and that she would only meet with Mr. Grinpas and refused to meet with us. We did not get any feedback from that source. Chair Furfaro: First three (3) minutes. Go ahead, Mike. Mr. Schultz: Okay. We have dealt in good faith. We have followed all of the guidelines that the County has provided us each step of the way. You have acknowledged that this process has never happened before. This is the first time that this process has been challenged in this planner manner, and clearly there is a resistance to this issue. We would like to honor somehow. So far, we have gathered somewhere in the neighborhood of seven thousand five hundred (7,500) signatures from the people of Kaua`i and we seem to be talking about legal opinions, which seems to be acknowledged. I understand that JoAnn is feeling like the courts should decide before people get an opportunity to vote, which seems kind of backwards to me. I would urge you to accept this and let the process continue. The amendment does say that once the signatures are received, the Clerk at that time would have an opportunity to get feedback from the County Attorney. If I am reading the Charter correctly, the attorney would have an opportunity to give us feedback, and there is a process there where we could respond or do whatever feels appropriate at that time. It seems pretty clearly defined and all of the stuff that is happening now, I do not see defined anywhere in any my reading of this. We have to say just from our hearts... all of these time issues— every month, there is another thirty thousand (30,000) pounds of toxic chemicals dumped on this island; one thousand (1,000) pounds a day; seven thousand pounds (7,000) a week. I wrote a letter to the Editor this week, and I was talking to two (2) hunters down in the west side... Chair Furfaro: Excuse me. I have to say to you that the item in front of the Council is the definition of "charter amendment" or an "initiative." We have an Environmental and Public Health Impacts Study (EPHIS) going on, possibly, and our litigation going on with these other items. Your item that is in front of us right now is convincing us that we are looking at a charter amendment versus an initiative. Mr. Schultz: Okay. Well, I think Mr. Yuhnke has addressed that clearly. We looked at that and we significantly revised the amendment. You chose to receive the last one we did, and then we took the guidance that you came up with and we made this so that it does not address third parties. It addresses only what goes on here in the government, as the Charter seems to be... that seemed to be the feedback we were getting, so we made every effort to address that as best we could and still achieve the goals that we were looking to uphold. It is hard to understand how we have gone through in good faith, made the revisions, and to what you already received once, and now we are back with the same kind of argument again. It is a little disheartening to walk in and be COUNCIL MEETING 35 JULY 9, 2014 handed this feedback in the middle of the day and not have any chance to review twelve (12) pages of feedback. I guess bottom line is that I would urge you to receive it and honor the democratic process to let the seven thousand five hundred (7,500) signatures— not votes, but to let those be heard... let the people's voices be heard. Chair Furfaro: JoAnn, do you have a question? Ms. Yukimura: Yes, I do. Thank you, Michael. To be clear for the record; at your very first meeting with the County Clerk, did he not advise you to get an attorney? Mr. Schultz: Yes. That is pretty much all of the feedback we ever got. Whenever we would ask a question, they would say, "Consult an attorney." Ms. Yukimura: I think the reason for that... Mr. Schultz: Other than the seven (7) pages of guidelines. Ms. Yukimura: Right, but the key guideline, as an attorney would tell you, is the language of the Charter itself. That had to be followed and that was the problem with the Clerk's first rejection. It did not follow the wording the Charter itself. I just want that to be clear; that you were told to get an attorney for reasons that the County Attorney cannot serve as your attorney. Nobody can serve as your attorney. Mr. Schultz: We did not ask or expect the County Attorney to serve as our attorney, but we were required to meet with the Clerk's Office to go over the guidelines and gain an understanding of the process. Ms. Yukimura: Okay, but the law is what is the most important that has to be followed. Mr. Schultz: Right. Ms. Yukimura: Then you said that you are using the people's tool, which is this process for charter amendments, but you are aware that there is another "people's tool" in the Charter, right? Mr. Schultz: I understand. Ms. Yukimura: So there is the process for getting a law into effect through the people's initiative and ballot. There are two people's tools, so I guess the question is why did you choose the Charter as a tool, rather than a bill for an initiative to put a law in place? Mr. Schultz: Well, there were a number of reasons, but this obviously five percent (5%) is easier. Also, the Mayor cannot veto it, which is a critical point in the environment that we are dealing in around this issue. Ms. Yukimura: The Mayor cannot veto an initiative either. COUNCIL MEETING 36 JULY 9, 2014 Mr. Schultz: Well, I do not know, but those can be repealed. Ms. Yukimura: An ordinance can be repealed. Mr. Schultz: Right. There are other factors, but... Ms. Yukimura: If an ordinance is the way to achieve your goal and it would be invalidated if you try it as a charter, then you would probably want to go for an initiative. Mr. Schultz: Well, we felt that what we were presenting was a charter amendment. If we did not, we would not have obviously done it. Ms. Yukimura: Right. Mr. Schultz: Clearly, those have differing opinions now still. Ms. Yukimura: Right. Lastly, do you not think that it would be better to make sure that it is a valid charter amendment, so that when it passes, it will survive a court challenge? Do you not think that it is better to know ahead of time than afterwards, given all of the money and time you would have to spend to get it passed? Mr. Schultz: I would say that we looked at making this as survivable in court as we could possibly make it, knowing that everything that deals with the chemical companies is going to court. It would be kind of naive to not think that. Ms. Yukimura: That is very good that you did everything you could, but now you could test it early on, instead of going through all of this time, expense, and heart. Like you said, all of these people who signed this petition... Chair Furfaro: I need questions, JoAnn. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Mr. Kagawa, did you want the floor or did Mr. Chock want the floor? Mr. Chock: I just have a quick question. Chair Furfaro: Go ahead. Mr. Chock: Thank you, Michael. If this charter amendment does not get received here or if it goes to the County Clerk and it is rejected there, is it the intention for the group to continue to move forward looking to see that this become and ordinance? Where is the direction that this group would go? Mr. Schultz: Our intention is to stop the poisoning somehow. We would not be here if that would stop. If any other vehicle would do COUNCIL MEETING 37 JULY 9, 2014 that, then we would be complete. Yes, in our minds, that is the only driving force, which is to stop the poisoning of this island. If this is not successful, we will keep on going. We will determine what vehicles are here, but obviously those numbers of how much toxins—I started to say this earlier that the hunters are finding pigs and goats that have tumors. They cannot even eat them anymore. That is just anecdotal, but that is the reality down there. Mr. Chock: Okay. Thank you very much. Chair Furfaro: Michael, you have another question. Mr. Bynum: Real briefly. So your position is that when the first petition happened that you went and took the feedback that you heard from the Council and in the public process, made revisions to that and your consultant's opinion was that those provisions should make it work. Then your position is that it should proceed and the courts should determine if portions are stricken, other portions could remain, perhaps? Mr. Schultz: Perhaps, yes. The intermediate step would be the feedback from the County Attorney after the sufficient signatures are validated. Mr. Bynum: After the dialogue that we heard today and the refusal... or not refusal, but the County Attorney has not answered my question about whether they will do that or not. It seemed pretty clear to me that they have no intention of exercising that. Chair Furfaro: Mr. Bynum, I need questions during this period. Mr. Bynum: Is that your position and the position of your consultant that the charter amendment, as you submitted it, is a charter amendment, not a petition? Is that your position? Mr. Schultz: That is our position. We went over the case that has been Nakazawa, and as Bob has stated, seems to be about taking taxing authority away from County. Chair Furfaro: Excuse me, Mike. I am going to remind you again that he asked you a question and you responded to the question. You cannot add dialogue about another case. That is our rules. Mr. Schultz: I am sorry. I thought I was answering your question. Mr. Bynum: That is okay. I am finished, Mike. Thank you. Chair Furfaro: Anymore questions? Thank you, Mike. See you tomorrow. Mr. Schultz: Thank you. Chair Furfaro: Next speaker, please. COUNCIL MEETING 38 JULY 9, 2014 Ms. Fountain-Tanigawa: The next speaker is Sandra Herndon, followed by Aurelius McNaughton. SANDRA HERNDON: Aloha Council. Thank you for the opportunity for me, Sandra Herndon, to come before you again on this matter. I think the thing that brought this petitioners' committee together in view of the fact that this issue is so... not just prevalent on the west side, but it is growing and it needs to be addressed; is the mutual desire to shine light into issues that are gray, and in some cases, very, very black and white. I think that us going through this process allows a greater opportunity for transparency in regards to not only the way that our current County Charter is written... somewhat ambiguously... not just the idea that there is a lot of money out there that is potentially influencing the government. Chair Furfaro: Excuse me. I want to make it very clear here that the item on the agenda is dealing with an initiative or a charter amendment. Ms. Herndon: Okay. The item on the agenda is whether or not it is a charter amendment, which requires the five percent (5%) or the initiative, which is twenty percent (20%). I think it is pretty clear that the percentage of signatures that were gained within that short eighteen (18) day period is indicative of the fact that this is something that the public desires and feels very strongly. I would suggest that it is in the best interest of the public to put this forward, to count the signatures and allow it to go forward, and have whatever opportunity for transparency to come up and let the courts decide if that is the way it is going to go. We need to honor the people's will. Thank you. Chair Furfaro: Sandra, do you know how many signatures exist on your petition in the state that it is right now? Ms. Herndon: There are three thousand thirty (3,030) right now and there were some that were turned in after we actually turned them in, so there are more out there. That was in an eighteen (18) day period. Chair Furfaro: Understood. I think what I want to make sure we understand is that the County Attorney is my attorney and the County Attorney has advised me as such on the differences between a charter amendment, which requires "x" amount of signatures, as well as an initiative, which requires twenty percent (20%). That is the Charter. To get to the twenty percent (20%), I believe that you need eight thousand two hundred (8,200) signatures. That is what is before us and there is still time to work on this, but quite frankly, that is what we have. If it is a charter amendment, it deals with the framework of government. Ms. Herndon: Right. Chair Furfaro: This petition— are you of the understanding that it deals with the question of having certain third party requirements in there, which does not make it a charter amendment? Do you understand that? Ms. Herndon: I believe that we took that feedback from the first time that we were here and adapted and made those changes. If you were to read the full text of the current petition for the charter amendment... COUNCIL MEETING 39 JULY 9, 2014 Chair Furfaro: You answered my question. Ms. Herndon: Okay. Thank you. Chair Furfaro: You obviously believe you are still at the charter level. Ms. Herndon: I do. Thank you. Chair Furfaro: Mr. Hooser. Mr. Hooser: Thank you so much for taking the time. All of you have been so very patient. You have been here all morning. It was an important discussion, so thank you very much for being here. The item on the agenda is the "Communication from the County Clerk transmitting the Charter Amendment Petition relating to `A New Article Protecting Right To Clean And Healthful Environment From Hazards of GMO Agriculture, Establish Administrator for Environmental Health, And Provide For Enforcement' submitted by the Petitioners' Committee." That is the item on the agenda. Are you supporting us voting in receipt and supporting us passing that through? Ms. Herndon: Yes. Mr. Hooser: Also, just to clarify some of the earlier discussion, it is clear that there are differences of opinion. Some people believe that this item should be done through the initiative process and some should be done through the charter amendment process. There are certainly different opinions at this table, but I do not believe any conclusions have been made. Is your opinion that this is entitled rightfully submitted as a charter amendment? Ms. Herndon: I do because it establishes the "Office of Environmental Health," which would be that portion of the government that oversees situations like that. I believe that the way it has been modified allows that structure to be overseen by further County Departments. In other words, it is a charter amendment because it is structure of government. That is what I believe. Mr. Hooser: Thank you very much. Chair Furfaro: Thank you, Mr. Hooser. Thank you, Sandra. Next speaker, please. Ms. Fountain-Tanigawa: The next speaker is Aurelius McNaughton, followed by Joan Porter. AURELIUS MCNAUGHTON: Thank you, Chair and Council, for the time to speak here. My name is Aurelius McNaughton. I am a registered voter and I have had a lot of exposure to the public concern over the practices of big agriculture on our island and its effects. It is my opinion that there is massive support for the substance of this so-called "charter amendment," that is presented to you as a "proposed charter amendment" that the people who profit who in the hundreds of billions should be responsible for proving the safety of their practices. This memo, to me, is very revealing. It comes very late. Most of us thought we were signing a charter amendment. It is the opinion of the people that put that out there that it does qualify as a charter amendment. Just to speak for myself, I have to say that COUNCIL MEETING 40 JULY 9, 2014 this late attack on the validity of our charter amendment feels very contrived and it does not feel like it comes from the will of the people. For example, to me, this is very revealing that our County Clerk has seven questions, which most of it start with "how can we refuse this?" To me, this line of questioning reveals a bias, and that basically, somebody is looking for a way to reject this for the second time. I may not be versed in legalese, but as an average citizen, I want to offer to you, the Council and the Chair, to take a step back and look at the reality of this. The reality is that the people are going to refuse to pay the burden of proving that these activities are safe. We are already being sued by these companies for wanting disclosure and wanting limitations on how close they can spray to our public schools. We expected a fight, but we do not expect it from our representatives. Whatever you do today, do not reject this because from what I read, that would terminate the process; the process is democracy; and I do not think any of you want to be remembered in history as terminating the process of democracy on this very important issue. There are a lot of emotions here. I feel frustrated and angry, but my biggest emotion is, "Wake up." I know that you are "knee-deep in minutia" on this and I know you have to follow it to the letter of the law, but look at the behavior of these companies. These companies have a history of stampeding over communities. They will do whatever it takes to make a profit. They have an army of lawyers to continue to do so, but look at what is happening all around the world; the "Monsanto Protection Act"... Chair Furfaro: May I remind you again that this is not about... Mr. McNaughton: And to stay on top of the topic. Chair Furfaro: Yes, stay on topic. I appreciate your testimony, but stay on topic. Mr. McNaughton: Thank you for guiding me. That is what you are here for. The taxpayers and voters pay you guys to represent us on this issue. I believe that the Hawaii Supreme Court stated in Nakazawa that "the determination of whether a proposal is an ordinance or an amendment to the Charter must be made by an examination of the substance and not the form of proposal." The way that this citizen reads that is "stop killing us on `dotting our i's and crossing our t's."' The substance of this proposal is that the burden of proof should be on the companies that make the profits here and I think that the people have made their opinion very clear and will continue with more signatures if it is determined that this is not a charter amendment, but it is an initiative. We will get those other... it is only like three thousand (3,000) more signatures. Give us time to do it. Look at what we did in eighteen (18) days. This does represent public opinion and I encourage all of our representatives to keep that in mind. All of your efforts will be supported by the taxpayers and the voters, as long as you continue to represent us. I think that is all. Chair Furfaro: Okay. Are there any questions for Aurelius? Ms. Yukimura: Aurelius? Mr. McNaughton: Yes, Aurelius. Ms. Yukimura: Thank you for your testimony. I assume that our goals, yours and mine, are the same, which is a clean environment. The COUNCIL MEETING 41 JULY 9, 2014 question is how to get there effectively, so my question is, do you not think it would be better for your goal and everyone else to get a clear determination that this, in fact, is a charter amendment so that we will not wait until November and find out afterwards that it is not legal? Mr. McNaughton: I hear your question, JoAnn. That is obviously a big concern. The answer is "I do not know" because I do not believe that we are qualified in this place and time to determine legally what the outcome of that investigation would be. We know that people have worked very hard to make it qualify and a valid charter amendment, but to answer your question, I do not believe that the fear of wasted time and resources should trump the will of the people, which is that this goes on the ballot. Ms. Yukimura: I am talking about how to achieve the will of the people as quickly as possible. Mr. McNaughton: Yes, and I believe that would be to put it on the ballot and let the people determine whether it is a valid charter amendment. Ms. Yukimura: Even though in the end, it might be invalidated? Mr. McNaughton: I refuse to submit to that fear. There are a lot of fears about money and... Ms. Yukimura: What if there is another way to get it done faster? Mr. McNaughton: Well, then I and everyone that I know would be very much in support of that. Ms. Yukimura: Okay. Thank you. Chair Furfaro: Thank you for your testimony. Our last speaker is Joan Porter. JOAN PORTER: Aloha. My name is Joan Porter. Thank you all for being here. I am moved to speak primarily to what you brought up, JoAnn, and you just asked Aurelius also, of the prudency of determining when this is a charter amendment or an initiative before it goes on the ballot, or do we wait until everybody votes, and then it goes to court. I believe it is a charter amendment. I know we did revise it and that the language that one would say is "initiative language" is not mandated that you must follow it. Therefore, it is there, too, as more or less "a suggestion," I would say. Therefore, I stand that this is a charter amendment and I urge you all to vote and let it go through. The reason, in my mind, that it is important to let it go through and be voted on by the people, and then if it is decided that it needs to be determined by the court if it is a charter amendment or an initiative; at least we have had the time and we are able to hear from the people of what they want. If we stop now, which we could not get this information as I understand; we could not get a court declaration, this would not go on the ballot this year, November 2014. I do not think we would be prudent to wait. I think we need to go forward now, so I urge you all to vote to receive this and receive it as a charter amendment, and have the County Clerk's Office count the signatures and let it pass through to the ballot. Thank you. COUNCIL MEETING 42 JULY 9, 2014 Chair Furfaro: Thank you. There are no questions for you. Members, I am going to call the meeting back to order. Discussion? Mr. Bynum. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Bynum: Citizens put forward a tax initiative, the County sued itself, and it got overturned. That became germane as we are seeing that we are actually releasing some of this. So the County has had all of these years; the County Attorney, any Councilmembers, and the Administration; to deal with issues that were brought up by Nakazawa vs. Baptiste. We had a second citizens' initiative while I was on the Council. I immediately asked for a robust review of this initiative because of this issue. We do not want go down this path again. How did we all look when the County sued itself and overturned an overwhelmingly support of— let us not do that again. And we did, as my memory; we hired Special Counsel and spent a huge amount of money. I am going to find out how much. I referenced this earlier. I am going to ask if we might want to release those opinions because I am sure some of the same questions were being explored at the cost of... I am sure it was over one hundred thousand dollars ($100,000) to special attorneys. But you know what? All of that analysis was never made public, never was given to the petitioners, and, in fact, we did an Ordinance in this instance that was unanimously passed at this Council to fully implement that citizens' initiative, and then it was overturned in the courts. When this citizens' initiative came, I wrote an E-mail to everybody, most of the leadership in the County, saying, "Hey, I just became aware of this. Here it is. Can we please do this analysis that is clearly anticipated in the Charter?" I am a frank guy and I speak my mind. It is like, "I may not support this initiative. This might cause difficulties. This may not be a good thing." Let us make sure that the citizens do not get "rope-a-doped" and that we are clear with them. If we do what the Charter envisions— we receive this petition, the County Attorney meets with the petitioners' group and says, "Here are the problems." Then the ball is in their court, right? If they choose to not rectify those problems, and that we do what the charter envisions, we receive the petition and the county attorney meets with the petitioners in groups and says here is the problems and then the ball is in their court; right? And if they choose not to rectify those problems and take it before the initiative, that is part of the public record and voters can make their decision based on that, right? There is a good chance that I would not vote for this charter amendment, personally, because it is not the direction that I think is the best, personally. I agree with JoAnn that it has some really creative and unique things in it. It has a discussion that we should engage it, but it is a kind of... as was said by the petitioners, "a precautionary principle," which unfortunately, our Country has not adopted as robustly as the rest of the world. I like working within the structure of the law that we already have, but the decision here is not about whether it is a good petition or not; it is about opinions, right? We do not apply the provisions that are in the Charter. We do not move in eight (8) or ten (10) years to change the Charter to clarify it more, right? But now, we are coming up with these new criteria that have never been applied before. It may be legally correct, but would it not have been more appropriate to put that out there up front? The petitioners come to us and say, "Hey, we heard you. We did not do this right. We did not do that right. We made changes that we think are sufficient and we placed this before you again." The opinion, even though I just got it today, I tried to read through it again during the portion. This is not the only decision-making point of which the County could intervene at some level if they thought it was appropriate, COUNCIL MEETING 43 JULY 9, 2014 but it sure does feel like— and I agree with the testifier that mentioned that when you read this, it is like, "Can the County stop?" "Can we reject?" Where are the questions that ask, "How can we assist these folks to get it done right so that we do not have this kind of conflict?" That is the question I asked on April 26th in E-mails to most of the leadership of this County. I did not get any response. Nobody responded to my questions in writing, but they responded to questions that said, "Do we have the authority to stop this?" I am not clear that we do at this juncture. I believe the appropriate thing is to continue this process. The opinion says that the Clerk can do it or the Council can do it. I actually feel even stronger that the Clerk should not have that responsibility and if I was going to vote to reject this, it would be just for that reason, so we did not do something even worse and have the Clerk take that responsibility. "Clerk"— look that up in the dictionary. Who is going to advise the Clerk if this is legally sufficient? The same County Attorney, right? My vote today is to receive and start counting the signatures. If there are legal problems here, I wanted to see what that previous opinion said. I want to read this more robustly and have a discussion; maybe another Executive Session where we can look at all of the alternatives before I stop a process that is prescribed in my Charter. Remember, by their very nature, citizens' initiatives are grassroots. Our Charter envisions us assisting them and we have chosen not to again. We will say, "Why did you not get an attorney?" There is nothing in the Charter that says that a citizen's initiative has to go out and get their own legal representative, but the Charter— again, I know I am being redundant, but it does say "here is a mechanism where you can assist them," and we have never applied it and we will not apply it again. Thank you. Chair Furfaro: Mr. Hooser, you have your five (5) minutes. Mr. Hooser: Pardon me? Chair Furfaro: You have your five (5) minutes. Mr. Hooser: Okay. I believe I am entitled to more, but I will try to keep it to five (5) minutes. Chair Furfaro: If you are the introducer, you are entitled to more. Mr. Hooser: Yes. Thank you. I will try to keep it to five (5) minutes. I want to echo what Councilmember Bynum said to a large extent and enthusiastically urge my colleagues to vote to receive this. This is the people's path. The framers of the Charter put this in the Charter to allow the people a path to pass laws and amend the Charter because for whatever reason, the Council or other paths are not accommodating them. For this Council to interject itself as the judge and jury over whether or not the language is appropriate or inappropriate or legal or illegal, I think, is probably illegal for us to do that. Certainly, it is inappropriate. Nowhere does it say that the Council reviews the language and passes judgment over the language or which path we are supposed to be on. Nowhere does it say that. It does say in the Charter that the County Attorney may change the form or the language or any restatement of the text with approval of the petitioners' committee, so if the County Attorney's Office wanted to suggest improvements, then they could do so. That is perfectly within the legal authority. We have a difference of opinion and the only ultimate opinion that matters would be a court case in the end. We can all sit here and say that we think this will happen or that will happen, but we do not know what will happen. We know that people got COUNCIL MEETING 44 JULY 9, 2014 together, as is their right in our society; came together as a group; as a community. They came up with language, went out into the community, made a good faith effort, gathered the signatures, were rejected, went out and gathered the signatures again to fulfill the intent and purpose of our democracy and what is written in our Charter. We know that. For to us interject ourselves is, again, probably illegal and certainly inappropriate. Some of us may prefer sections of this amendment be in an ordinance and not in the Charter. Some may think that it is more appropriate as an ordinance or the Charter, but that does not matter. What matter at the end is the legality of it and the court will decide that. The court will look at the different parts of it and may or may not rule on the entire and maybe rule on parts. We cannot sit here and predict what a court is going to do ten (10) months or one (1) year out. The people wrote this amendment; this proposal. The people are gathering signatures to support it. The people of Kaua`i should vote on November 4th whether or not they want to pass this provision or not. They will be given ample opportunity to decide for themselves whether they believe this is good for Kaua`i County; whether they believe this is legally sufficient; whether they believe this is a charter amendment, an initiative, or an ordinance. The people are smart enough to make their decision and vote on November 4th. They do not need this Council to play "mom" and "dad" to make that decision now for them, like we are somehow smarter than everybody else. The people should decide. We have no business interjecting ourselves in trying to stop what the people have put forward to pass on the ballot on November 4th. I strongly encourage my colleagues to vote in support of receiving and allow the democratic process and the people's efforts— honor those people's efforts and let the process move forward. Thank you. Chair Furfaro: JoAnn, and then Mr. Kagawa. Ms. Yukimura: This discussion here today is not about whether the petition is good or bad; it is about following the rules. We are a Country, a State, and a County of law. That is what rules are. They are laws and they should not change based on whether we want a certain outcome. It is about following the rules, following the Charter, and about doing our job as sworn-in officials to follow the Charter. That is what we are trying to determine here; whether this is following the Charter. Councilmember Bynum says that he does not think that Clerk has the power to determine whether this is in substance a charter amendment or a bill for an ordinance— well, the Clerk cannot do his job without making that determination because he has to determine how many signatures are required to put this on the ballot. If it is a legitimate charter amendment proposed, then there are a certain number of signatures. If, in fact, it is a bill for an ordinance, then there is a different requirement. In order for the Clerk to do his job, he has to make that determination. The petitioners, by their act of trying to change the law, are expressing their honoring of the law. We know that we have a Charter and we have Ordinances. In order for this society to move forward, if we want a certain end, we change the law. We have to know and follow the rules in order to change the rules. As someone who has been involved in getting two issues on the ballot successfully, I have had to figure out what the rules are, and I was not a Councilmember at that time; I was a citizen. I was the people, if you will. I had to figure out what these rules were in order to meet the rules, in order to get that issue on the ballot. That is what we are trying to determine here because if this is, in fact, a bill for an ordinance, then there is a different set of rules in the Charter that has to be followed. This is what this issue is about. It is not about whether the petition is good or bad. As I said, I found many things in the petition that I like, but the question is are we following the rules to get it on the ballot and also, to achieve the goals of the petitioners because if you go through all of this trouble get it on the • COUNCIL MEETING 45 JULY 9, 2014 ballot, and then it is found to be invalid— to me, that is a leader's responsibility: which tract to take when you lead so many people to do something. You want to optimize its success; the possibility of success. The last time that I voted to receive, I voted with an understanding that it was a ministerial job for the Council. We did not determine whether the issue was a charter amendment or a bill for an ordinance. What I am hearing now from the County Attorney is that we have a job to determine substantively whether it is a charter amendment or a bill for an ordinance. I do not know at this moment how I am going to vote, but I am trying to share my thought process on this, and I have to say that substantively, this is a bill for an ordinance and I am fearful it will be invalidated. I do not believe that the County Attorney can advise a group substantively because it is a position of a conflict of interest and violates the attorney's ethics. Ms. Fountain-Tanigawa: Five (5) minutes. Chair Furfaro: JoAnn, that is your time. Ms. Yukimura: Thank you. Everything in this bill shouts out that it is a bill for an ordinance: the length alone, the fact that there are penalties, and methods of regulation. These are not just structural; these are legal laws. Thank you. Chair Furfaro: Mr. Kagawa. Mr. Kagawa: Thank you, Chair. As soon as I got elected, I met with Mr. Schultz and Kaua`i Rising with Patsy Nitta, my former teacher. I am familiar with the Kauai Food Bill of Rights a little bit and I know that the movement has been going on for a while. At some point, I had expected them to come up with a bill before the Council that the Council would deal with and use that process to get what they want done here. This is a tough one. We have a lot of people who put in a lot of time, obviously. Seven thousand (7,000) people plus signed it. Who would put in the effort of all of that work and time that it takes in order to not get something accomplished at the end. It is a lot of what you could look at as wasted time. But in the last meeting that we had here, the question was asked of our County Attorneys to do the work and to determine to us, is it an initiative or is it a charter amendment? "Is it a cat or a dog," as Chair Furfaro asked. I guess unfortunately for the people who put in the time, this does not help them because the County Attorney tells us it is an initiative. Today, we are faced with "do we pass the buck and let Ricky, the Clerk, get the pressure in order to work out the details as far as whether it is a charter amendment or an initiative and put the burden on Lyndon and his Elections Staff to process it?" In the meantime, they have to do a job. We hire them to do their job and they must also look at this opinion. I think it is obvious to them that it is an initiative. To me, why are we, at the Council, going to pass the buck to Ricky and put the pressure on them when it is our job to make the call and our job to listen to the County Attorney's Office as far as what their work has discovered? Even if we do not like the results, we cannot ignore the facts that this is more of an initiative than a charter amendment. Today, I do not think the work is going to be wasted. I think if at the end it gets rejected, I believe Kaua`i Rising will come up in some other form and we will see this again in some form, either at the Council level or on the ballot. I think today is the day for us to do the responsible thing and treat it as it is. It is an initiative. Thank you, Chair. Chair Furfaro: Mr. Chock, do you wish to speak before I do? COUNCIL MEETING 46 JULY 9, 2014 Mr. Chock: Sure. Thank you, Chair. Yes,- I just think this is a really unfortunate situation. I do not know if I need to echo everything that was said. There is so much truth of what was said here on the table. The bottom line is that our County Charter is flawed in this area and needs some work. The outcome is what we are faced with right here, right now. It is a difficult decision. I think that our County Attorney has our best interest in mind here. She has given us this opinion and we need to live up to that as well. My hope is that we continue this work. I think it will happen, like Councilmember Kagawa said. I am dedicated to seeing it and I support the will of what was being said and what has been worked on here. We want to put something forward that is going to work for us to administer, so that is the direction I am headed right now. Thank you, Chair. Chair Furfaro: Thank you. I am the last to speak. First of all, I want to make sure we understand that I am trying to interject my opinion on these pieces. My attorney is the County Attorney. They give me legal advice, define the laws, and define the guidelines to me. As it appears, that petition seems to want to regulate activities of a third party, which makes it certainly an initiative more than a charter amendment. That is the question that is in front of me. I just want to say to all of the people that have been working on this is those are the things on the people's path to the process. Those were the road signs that are there that are required in the law; the Charter, of which I took an oath and so forth. I really find myself in a situation where I am seeing that a lot of good work is going into this and so forth, but the question to me is does it satisfy a charter amendment? I think it really imposes itself as more of an initiative, which requires eight thousand two hundred (8,200) signatures. On that note, I would like to have a roll call vote on the motion. The motion to receive C 2014-199 for the record was then put, and carried by the following vote: FOR RECEIPT: Bynum, Hooser, Yukimura TOTAL — 3*, AGAINST RECEIPT: Chock, Kagawa, Furfaro TOTAL — 3, EXCUSED & NOT VOTING: Rapozo TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kaua`i, Ms. Yukimura was noted as silent but shall be recorded as an affirmative vote for the motion.) Chair Furfaro: According to our rules, we have a situation where the motion was to receive. The silent vote has, in fact, gone to the motion. That makes it 3:3. It does not fail. It actually comes back in two (2) weeks according to our rules and I am going to get an interpretation on that to make sure that we are sound. Before we break for lunch, let us get our interpretation. Please, nobody talk to the Clerk. Let her interpret the rules. Councilmember Kagawa, you have the floor. Mr. Kagawa: It was my understanding that the silent vote went with the majority. Chair Furfaro: I want to verify that. To the people in the audience, I hope you understand the discussion as I explained it. Please do not try to make an interpretation while the mics are on. COUNCIL MEETING 47 JULY 9, 2014 Ms. Fountain-Tanigawa: Council Chair, in consultation with our Legal Analyst, pursuant to Rule 5 of the Council Rules, the silent vote is recorded as an affirmative vote for the motion. Chair Furfaro: My interpretation was correct. It ends up in a tie. I am glad I studied the rules. We have an automatic return to the Council in two (2) weeks. Ms. Fountain-Tanigawa: Also, pursuant to Council Rule 5(e), "Council Absence, Tie Vote," due to Councilmember Rapozo's absence: "At a Council Meeting, if members are evenly divided on any main motion or if there are insufficient votes to carry any main motion because of the absence of a member, the item shall be made the Special Order of the Day at the next regular meeting." Chair Furfaro: As the first item? Ms. Fountain-Tanigawa: Yes. The next Council Meeting is on July 23rd. Chair Furfaro: Okay. For the audience, this item, when we have the full body back, it will be the first item on the agenda. On that note, it is ten (10) minutes to 1:00 p.m. We will be breaking for lunch. There being no objections, the meeting recessed at 12:53 p.m. The meeting reconvened at 2:04 p.m., and proceeded as follows: Chair Furfaro: I do want to note that Councilmember Yukimura advised me that she might be ten (10) minutes late, but we will move on with other business. Clerk, please take us to the next items. COMMUNICATIONS: C 2014-200 Communication (06/17/2014) from the Prosecuting Attorney, requesting Council approval to receive and expend Federal funds from the FY 2013 Edward J. Byrne Memorial Justice Assistance Grant (JAG) for the Elder Abuse and Neglect Prosecution Unit, in the amount of $89,653, to fund a 0.50 Full Time Equivalent (FTE) Special Prosecuting Attorney and a 0.50 FTE Legal Clerk/Law Office Assistant, fringe benefits, and equipment and educational pamphlets; and to indemnify the State of Hawai`i, Department of the Attorney General: Mr. Chock moved to approve C 2014-200, seconded by Mr. Kagawa. Chair Furfaro: When we reference "full time equivalent," this actually references the total number of hours not to exceed two thousand eighty (2,080) hours. Do they have the flexibility to actually hire two (2) people not working than a full time equivalent of two thousand eighty (2,080) hours? Ms. Fountain-Tanigawa: I believe so, yes. Chair Furfaro: Okay. The motion to approve C 2014-200 was then put, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). COUNCIL MEETING 48 JULY 9, 2014 C 2014-202 Communication (06/27/2014) from the County Attorney, requesting authorization to expend funds up to $10,000 to retain Special Counsel to represent the County of Kaua`i in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit Court), and related matters. Ms. Fountain-Tanigawa: Chair, would you like to take all Special Counsel approvals and move them to the end of the agenda after Executive Session? Chair Furfaro: Yes. Let us move them all to the end of the agenda so that we can do them all at the same time. Ms. Fountain-Tanigawa: Okay. That would be C 2014-202, C 2014-203, and C 2014-204. Chair Furfaro: Okay. Let us go to Claims, please. CLAIMS: C 2014-195 Communication (06/10/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kauai by Ronald J. Horoshko for Cloroshko LLC., dba, Birdie's Cafe and Pub, for loss of revenue and compensation for perishable foods, pursuant to Section 23.06, Charter of the County of Kauai: Mr. Kagawa moved to refer C 2014-195 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Bynum. Chair Furfaro: I do know that we also asked for some clarification, which we did receive from the County Attorney. Ms. Fountain-Tanigawa: Yes, we have received it and information was circulated to all members. Chair Furfaro: Thank you. The motion to refer C 2014-195 to the County Attorney's Office for disposition and/or report back to the Council was then put, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). C 2014-205 Communication (06/20/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kaua`i by Farmers Insurance Hawaii, Inc., as subrogee of Marlene Morimoto, for damages to her vehicle, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Kagawa moved to refer C 2014-205 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Mr. Chock. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: I have not said anything in recent months, but I have noticed that a lot of these are damages to cars. I guess my question, or maybe I should put that in a communication to Public Works or whoever is being charged with these damages, is if they are changing, I guess, or trying to avoid future damages such as if a rock fell from a big truck that cracked the glass. Do we need a larger... what would you call it? Not a fender, but to prevent the rock from flying from the tire? I am just wondering if we are addressing those things with the COUNCIL MEETING 49 JULY 9, 2014 Departments as they occur or are we just paying the claim and waiting for the next one to come. Chair Furfaro: I believe, for the courtesy of the County Attorney, and I am not going to ask you to come up, Al; but I do think that Mr. Kagawa's point is well taken. We are due for an update on these claims/ settlements and I think we are expecting a quarterly report. It would be nice if we could have some specific questions referencing the use of the "rear-end skirts" from these County vehicles to prevent some of this. Am I correct? Are we due for an update soon? Can we send some correspondence to address Mr. Kagawa's questions and concerns on this problem? Thank you. The motion to refer C 2014-205 to the County Attorney's Office for disposition and/or report back to the Council was then put, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). Chair Furfaro: Let us go to Committee Reports, please. Ms. Fountain-Tanigawa: Before that Council Chair, I just want to mention that we did receive written testimony sent in to the office that we just received a copy of. It is from Lonnie Sykos supporting Resolution No. 2014-36. Chair Furfaro: Okay, which was the public hearing? Ms. Fountain-Tanigawa: Yes. Chair Furfaro: Okay. That is so noted for the record. We will put Lonnie's testimony in as received. Ms. Fountain-Tanigawa: Okay. Chair Furfaro: Mr. Kagawa, you stepped out, but we are going to get an update on the claims, as you suggested, in the very near future from Al. Mr. Kagawa: Thank you, Chair. The word I was looking for was "mud flap." Chair Furfaro: I said "skirts," so we were close. Mr. Kagawa: I just thought of it while I was heading to the bathroom. Thank you. Chair Furfaro: Okay. Let us move to Committee Reports next. COMMITTEE REPORTS: PLANNING COMMITTEE: A report (No. CR-PL 2014-05) submitted by the Planning Committee, recommending that the following be Referred to full Council: COUNCIL MEETING 50 JULY 9, 2014 "C 2013-271 Communication (07/16/2013) from Ian K. Jung, Deputy County Attorney, recommending Council approval of a Grant of Pedestrian and Parking Easements relating to Kahuaina Plantation Subdivision (5-2007-02) and Kahuaina Plantation Subdivision Phase II (5-2009-15): Grant Of Pedestrian And Parking Easements; concerning real property identified as Lot 15-A (TMK (4) 5-1-003:006), Lot 15-D (TMK (4) 5-1-003:032) and Lot 15-K (TMK (4) 5-1-003:039)," Mr. Bynum moved for approval of the report, seconded by Mr. Kagawa, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). ENVIRONMENTAL SERVICES / PUBLIC SAFETY / COMMUNITY ASSISTANCE COMMITTEE: A report (No. CR-EPC 2014-05) submitted by the Environmental Services / Public Safety / Community Assistance Committee, recommending that the following be Received for the Record: "EPC 2014-02 Communication (05/23/2014) from Councilmember Yukimura, requesting a briefing from Peter S. Adler, Ph.D, on the Final Report of the Feral Cat Task Force, which was funded by a grant from the County of Kaua`i and addresses how Kaua`i's feral cat challenges can best be managed," Mr. Bynum moved for approval of the report, seconded by Mr. Hooser, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). PUBLIC WORKS / PARKS & RECREATION COMMITTEE: A report (No. CR-PWPR 2014-07) submitted by the Public Works / Parks & Recreation Committee, recommending that the following be Received for the Record: "PWPR 2014-05 Communication (06/26/2014) from Committee Chair Kagawa, requesting agenda time for a discussion with the County Attorney and Director of Parks & Recreation on the effects of the upcoming Shearwater fledgling season on evening football games," Mr. Chock moved for approval of the report, seconded by Mr. Kagawa. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: First of all, I would like to thank all of the members for their comments and suggestions at that Committee Meeting on the shearwaters. I was a little dismayed, I must be honest. The next day, I saw a release from the Mayor's Office basically saying that they were not too hopeful of working out something that came out of the Committee, where we had a group headed by Maka`ala, saying that they wanted to work together with us and see the Feral Cat Task Force recommendations get approved in an Ordinance and use that as possible mitigation to work with the County and allow us some leeway and maybe some additional games during the night. When I saw the Administration's press release the next day in The Garden Island, it seemed like that was not an option. I am wondering if we are basically shelving the option before we even put COUNCIL MEETING 51 JULY 9, 2014 the effort in. Please, I would urge the Administration to try and work with those groups. They seem willing to work with us. Why would we come to our own conclusions before we even make that effort and try our best because what I found with our Committee is that the Council is really committed to take care of both issues; the birds, as well as our football games. It is not a "one-sided issue" by no means. I think that is what the community wants as well. Thank you, Chair. Chair Furfaro: Mr. Kagawa, my apologies because I was absent that day. As you know, I had a family medical to attend to. I do want you to know that I have written as asking for an appeal since we are out of certain session of a period of time of restrictions, if there could be some considerations for a three (3) hour a week variance. I will share that communication with you. I was not here and I was not present to do it then, but there is such correspondence going out. Mr. Kagawa: I want to thank you very much. Those are the kinds of actions— if we even get one (1) day more per year, it will at least show that we are working towards trying to get night games back. But I think, along with that, we still have to take care with our end of the deal and I think the feral cat is a step in the right direction as far as mitigation. Thank you. Chair Furfaro: I am making that request for a variance based on our compliance and good performance. The motion for approval of the report was then put, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). COMMITTEE OF THE WHOLE: A report (No. CR-COW 2014-11) submitted by the Committee of the Whole, recommending that the following be Received for the Record: "Resolution No. 2014-22 RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE CODE OF ETHICS," Mr. Kagawa moved for approval of the report, seconded by Mr. Chock, and carried by a vote of 6:0:1:0 (Mr. Rapozo was excused and Ms. Yukimura was not present). Chair Furfaro: Let us move on to Resolutions now. (Ms. Yukimura was noted as present at 2:14p.m.) RESOLUTIONS: Resolution No. 2014-22 –RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE CODE OF ETHICS: Mr. Kagawa moved to receive Resolution No. 2014-22 for the record, seconded by Mr. Bynum, and carried by the following vote: FOR RECEIPT: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL– 6, AGAINST RECEIPT: None TOTAL– 0, EXCUSED & NOT VOTING: Rapozo TOTAL– 1, RECUSED & NOT VOTING: None TOTAL – 0. COUNCIL MEETING 52 JULY 9, 2014 Resolution No. 2014-38 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Maureen M. Tabura): Ms. Yukimura moved for adoption of Resolution No. 2014-38 on second and final reading, seconded by Mr. Bynum, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL — 0, EXCUSED & NOT VOTING: Rapozo TOTAL — 1, RECUSED & NOT VOTING: None TOTAL— 0. Resolution No. 2014-39 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE BOARD OF ETHICS (Mary E. Tudela): Ms. Yukimura moved for adoption of Resolution No. 2014-39 on second and final reading, seconded by Mr. Kagawa. Chair Furfaro: Councilmember Yukimura, do you want the floor? Ms. Yukimura: Yes. Thank you. I just want to thank the Mayor, Paula Morikami, and the Managing Director Nakamura for the recent appointments of women to the various boards. We have had a real lack of such appointments and these women who are coming to us are so highly qualified. I know that they will contribute greatly to the decision-making process, so we are very happy. We want to acknowledge the Administration. Chair Furfaro: Thank you for doing so. We are all pleased. Further discussion? If not, roll call vote, please. The motion for adoption of Resolution No. 2014-39 on second and final reading was then put, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Rapozo TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Resolution No. 2014-40 — RESOLUTION CONFIRMING MAYORAL APPOINTMENT TO THE COST CONTROL COMMISSION (Jan Hashizume): Mr. Kagawa moved for adoption of Resolution No. 2014-40 on second and final reading, seconded by Ms. Yukimura, and carried by the following vote: FOR ADOPTION: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL— 6, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Rapozo TOTAL— 1, RECUSED & NOT VOTING: None TOTAL— 0. Chair Furfaro: Again, another outstanding candidate. Thank you to the Administration. Now, let us go to Bills for First Reading. COUNCIL MEETING 53 JULY 9, 2014 BILLS FOR FIRST READING: Proposed Draft Bill (No. 2548) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Time Share Tax Classification Proposal) Ms. Fountain-Tanigawa: Council Chair, we have received two (2) pieces of written of testimony; one from Wyndham Vacation Ownership and the other from Sherman Shiraishi; both in opposition of the Bill. Chair Furfaro: Okay. Mr. Bynum moved for passage of Proposed Draft Bill (No. 2548) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Ms. Yukimura. Chair Furfaro: Mr. Kagawa, you have the floor. Mr. Kagawa: I will go along with the wishes of the Council, but there are some members of public and even some from off island who are asking me and other members of the Council as to what is the rationale for this Bill and what the purpose is. I know we have the public hearing on August 13th, but I am wondering if perhaps a Bill such as this that is already getting a lot of attention should get at least a brief detail as to what the purpose is and such. If the Council wants somebody here now, fine. If you feel like we should wait for the public hearing and have more discussion at the Committee level, I am also fine with that. I will go with whatever, but I would not mind hearing what the Finance Director has to say. Thank you. Chair Furfaro: Mr. Bynum, you have the floor. Mr. Bynum: As the former Finance Chair for four (4) years, this is a Bill we have discussed previously as part of a multi-year tax restructuring that has been occurring. Currently, the time share industry has changed dramatically and gone into points and other kinds of systems, and this Bill is kind of a remnant of an era that has changed. I spoke with Mr. Hunt regarding these Bills many times including just before this, so I am fine with letting it go. You are correct; he can give a really good analysis. This is a Bill that I might have amendments for and we need to have that nice discussion that has already started with the testimony. Chair Furfaro: Okay. I would like to also point out that in preparation of this, I would like some correspondence going over to the Finance Department, as we all are familiar with the Transient Accommodations Tax (TAT) tax, I do want to point out that the time share or interval ownership has a "TOT' tax, and I want to make sure we have a complete understanding, because that tax is actually calculated in their annual assessments for the time and week, as well as this is dealing with the property taxes. I would to see that we have a clear understanding of interval ownership and how their tax categories work. It is a little different based on the market value versus the property value. Also, their weekly association assessment comes into play on the "TOT." I would just like to have a COUNCIL MEETING 54 JULY 9, 2014 firm discussion. If you do not mind, I will send that question over and give them time to get us more information. JoAnn, go ahead. Ms. Yukimura: I appreciate Councilmember Kagawa's request. I remember when former Councilmember Nadine Nakamura came in. She also started to say, "Why could we not have briefings on first reading?" That may be something we could look at. I think for today— I do not even know if Steve Hunt is here today. I know he is going off for a couple of weeks. Chair Furfaro: I think he is at a conference off island. Ms. Yukimura: Okay. To have it at least enough time and on our Committee after the public hearing would seem like the next logical time to have somebody in and I think that would be very useful. Obviously, this has many aspects to it that we need to understand. Chair Furfaro: Yes. Mr. Kagawa. Mr. Kagawa: Chair, if I could elaborate on some of the questions that I have, which I would like to hear from the Administration, but moving it on to public hearing is of course a good thing. When the public comments or has their say during the public hearing, I think it is easier for them to say what has been happening or what will happen in the future. Right now, it is kind of gray as far as what the reason is. I think the press release just said "to separate different categories." It did not specify that the next step in the plan is maybe to follow the County of Maui where the time share tax was higher than the room tax. That was not said in the press release. I think if Mr. Hunt or anybody from the Administration would state what the intention is, should the Council approve... separate the categories. The next step would be to raise the time share tax rate higher than the hotel room tax, then I think the public can adequately testify for or against what is being proposed, not just separating it by category. I think that is why this is not an ordinary bill. This is kind of a unique bill that I think the public should have a better understanding of what the real reason is for separating the categories. Thank you, Chair. Chair Furfaro: Any further discussion? Mr. Bynum. Mr. Bynum: I would just say that under the current law, time shares are taxed differently than at market rate like everything else. They have this separate category that requires our Tax Department to determine the value of the resale, and that gets more and more difficult to do because of the way the industry is changing where you now negotiate for points. That also might include activities, meals, and other things. What this Bill does is primarily to bring this in line with the other tax categories where we are taxing it based on the value of the property. What rate we set will be determined later, whether it is higher or lower. The time share industry, I think, would argue that their circumstance is different than hotels and different than vacation rentals. It is a fascinating discussion. I never thought I would get excited about tax policy, but I do. We will come forward with this. Thank you. Chair Furfaro: Vice Chair Chock. Mr. Chock: Thank you, Chair. I just want to add to some of the questions that might lead us towards a discussion with Mr. Hunt. COUNCIL MEETING 55 JULY 9, 2014 Another question that comes up to me is what the plan is in terms of administering this change in the valuation of these time share units, and then the separation. I know in the past we have had some issues in terms of being able to manage our list. I want to be clear that we walk into this with our eyes open. I am happy to sign on their behalf or on their request to get this discussion going. I look forward to that discussion as soon as Mr. Hunt returns. Thank you. Chair Furfaro: Okay. For the Clerk's Office, as we move forward here on this; obviously, we want information about the Maui County program. We also want to have an introduction kind of to the structure and the variance between what is the "TAT" tax and the "TOT" tax, and then on some of the items that Mr. Bynum talked about of their evolution here that deals with fractionals, club points, and all inclusive packages. We need to have an understanding of that. Ms. Fountain-Tanigawa: Chair, I just wanted to note that we did received testimony that was just walked in from Lawrence Dolan in opposition to the Bill. Chair Furfaro: Yes, I see that right now. We have three (3) written testimonies as of right now. Am I correct? Ms. Fountain-Tanigawa: Yes. Chair Furfaro: Thank you. The motion for passage of Proposed Draft Bill (No. 2548) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL— 6, AGAINST PASSAGE: None TOTAL— 0, EXCUSED & NOT VOTING: Rapozo TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. Proposed Draft Bill (No. 2549) — A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Residential Investor Tax Classification Proposal): Ms. Yukimura moved for passage of Proposed Draft Bill (No. 2549) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Mr. Bynum. Chair Furfaro: This Bill also came to us by request from the Administration. Am I correct? Ms. Fountain-Tanigawa: Yes. COUNCIL MEETING 56 JULY 9, 2014 Chair Furfaro: Further discussion? If not, roll call vote, please. The motion for passage of Proposed Draft Bill (No. 2549) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL – 6, AGAINST PASSAGE: None TOTAL – 0, EXCUSED & NOT VOTING: Rapozo TOTAL– 1, RECUSED & NOT VOTING: None TOTAL– 0. Proposed Draft Bill (No. 2550) – A BILL FOR AN ORDINANCE AMENDING CHAPTER 5A, KAUAI COUNTY CODE 1987, AS AMENDED, RELATING TO REAL PROPERTY TAXES (Vacant Land Re-Classification): Mr. Bynum moved for passage of Proposed Draft Bill (No. 2550) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee, seconded by Ms. Yukimura. Chair Furfaro: Further discussion? Vice Chair, you have the floor. Mr. Chock: Thank you. I know we kind of went through the last one, but I have similar questions that maybe we can answer for reasoning and why we are moving in this direction and what the benefits are— similar to the last tax bill that we are looking at in terms of why the one million dollars ($1,000,000) threshold. I have some questions, as we all do, and I am looking forward to ask these later. Chair Furfaro: Steve, welcome. Were you out in a conference? I wanted to share on a couple of items regarding conducted business on just so that you can continue moving forward. First of all, as we talked about the three, by request, tax bills, on the time share piece, we are trying to look for some education as it relates to— I will send this over in a memorandum, but these were some good questions asked by Mr. Kagawa, as well as pointed out by Mr. Bynum. The County of Maui's program—what it is currently with their time share program; the different structures of TOT tax versus TAT for the vacation ownership based on their common area assessments; and then the various types of time share ownership dealing with fractions, club points, and all other inclusive packages. We would like to get some information in advanced if that could be made as a request. Secondly, we talked in terms of having, Mr. Chock pointed out, the definition of what actual tax investors... the perception of what that would be and now also again, as Vice Chair Chock pointed out, the structure as we need to revisit vacant land re-classifications. We are looking for that in the form of a written response to all Councilmembers, but I will send those questions over to you in writing. I am going to suspend the rules right now so that you can come over. Members, if you do COUNCIL MEETING 57 JULY 9, 2014 not mind, I am going to allow you to reference the three pieces that I just talked about. I want to point out that we have five (5) minutes before we have to have a tape change. I do not know if that is a (inaudible) for you or not. There being no objections, the rules were suspended. STEVEN A. HUNT, Director of Finance: Thank you, Chair. Steve Hunt, Director of Finance for the record. I wanted to let you know that I have one (1) foot out the door. I am leaving early tomorrow morning for San Diego to go to the Esri Geographic Information System (GIS) User Conference to learn more about how we can implement and improve our GIS data collection and mapping. The questions that may be coming over might be a little delayed in the response. I suspect that I will be the one responding to them, so as much as I can, I would like to answer as many of these questions on the floor. I have already met with some of the industry leaders, as well as Sherman Shiraishi, who represents Arta. We have had discussions with regarding both— there are really two components to the Time Share Bill that is before you; one is the valuation technique and the other is the classification. From my brief discussions with at least three (3) of the General Managers (GMs), four (4) now including Collin from Henry Perez, who is involved in this. The industry does not have a problem with the valuation technique change, although it could be substantial for some of the projects. Their bigger concern is a separate classification. Again, I think because they look to the Maui model where the rates are so much different from other property tax classes, the concern is that the rates would follow that trend. My position is that a separate classification actually can do the opposite and will actually allow some phase-in. If the jump is so significant that having the same "Hotel and Resort" classification could end up having a substantial impact financially that that could be phased back in to catch up to the resort class again. What I envision is probably something in between the Vacation Rental class and the Hotel and Resort class in the first year, and then maybe a gradual "tiering" up, back to the resort rate. But having that additional classification gives us that flexibility, and you, that flexibility to do that. It is much easier than trying to implement some kind of a cap. I certainly do not want to go back into a cap mode for any kind of phase-in, so the rates are really the easiest tool for implementation. Again, I will share when we do get into more of the dialogue, I do have information taking one hundred (100) paired assessments between time shares and condos where they are identical units. The only difference being the type of ownership; fractional ownership versus wholly-owned. You can see that in the beginning, years 1997 through 2004, that the time share had a higher value than condos. Since 2004, which is now ten (10) years ago, condos have had a much significant higher value and that gap has continued to grow. The intent is for parity because I certainly hear it from homeowners who live in wholly-owned condos or investors that are vacation renting, "Why is our condo so much higher than the one right next to me that has the same view and same floor plan?" I have to point to the Ordinance, and the Ordinance says "this is how you shall assess it." I think now is the time and I think even the industry at this point, from the limited feedback that I received, is in support of the valuation change; it is just their concerns about what would happen with the classification. Again, it could be different Councilmembers and a different Administration. Setting up that classification certainly gives the authority to change rates and that is their bigger concern. Chair Furfaro: Steve, we understand that you are out the door traveling, but if we could communicate, maybe Sally can do that for us to the Arta group and ask them for the standard definitions that reference some of the COUNCIL MEETING 58 JULY 9, 2014 subtopics about intervals, time shares, fractions, and club points just so we have one piece that the industry says "this is how you define this that is starting with them." Of course, our friends with Hilton from Honolulu— if they want to send in some testimony, it would be well received. On that note, we have to change the tape. Please give us five (5) minutes to change the tape. When we come back, we will recognize Mr. Kagawa. There being no objections, the meeting recessed at 2:35 p.m. The meeting reconvened at 2:44 p.m., and proceeded as follows: Chair Furfaro: We are back. Steve, thank you again for being here. On that note, Mr. Kagawa, I am going to give you the floor, and then followed by others. Mr. Kagawa: Steve, the early testimony that we were having, coming in from the people associated with time shares, is that the only reason why we would want to separate it is to raise taxes. Their comments are that they already pay a fair share of taxes and I think they feel that paying that hotel rate is fair. What is your response to that? Mr. Hunt: Well, there are really two subjects; one is rate and one is value. I would probably concur that the rate that they are paying is the top right now at ten dollars and eighty-five cents ($10.85), but the value differentials could be dramatic. I have evidence of condos that are identical, one wholly-owned and one in time share, where the value could be less than half of the wholly-owned. You are already saying that ten dollars and eighty-five cents ($10.85) rate, if you were to apply that to a condo rate, you cut that rate in half and now you are at five dollars and forty cents ($5.40). Their effective rate, if you will, by having that such low value is maybe not fair, especially if the unit next to them that is being used, even as a residential long-term paying six dollars and five cents ($6.05) has more than double the value, they are actually paying more than taxes. If it is in vacation rental, then they are paying a lot more taxes. Again, I think there are two questions here; one has to do with value and one has to do with rate. I think from the general responses I have gotten from the time share people, they recognize that there is an issue with value, but their concern is on the rate-setting. They were actually asking whether we would leave them in resort— one of them was asking if we would leave them in Hotel and Resort, but adopt a new assessment methodology, which would get them back to their wholly-owned condos. Again, my concern would be that it may be too punitive if the increase is so much, granted it would be a lot of revenue, and we are certainly in need of revenue. I think not having that tool to possibly find a rate in between could be problematic for some of the projects that absorb that value increase. Mr. Kagawa: I think what their assumption is... because they have not seen the detailed plan of what this Bill does. They are assuming that we are just going to separate time shares from hotels at some point because they feel like the only reason why we split it up is that we would have different rates, and then at that point, we increase their rate like Maui did. I think Maui kept the same valuation methods, but they caught them by increasing the rate. We are not doing what Maui is doing. Mr. Hunt: Maui is a "double-whammy" because they do use the condo values to assess them, so they are already getting high assessments COUNCIL MEETING 59 JULY 9, 2014 and they are getting the high rate applied. I think that is the bigger fear, is having the "double-whammy" of getting both tacked onto that. It is possible to pass an ordinance that does not include a separate classification that still deals with the valuation, but again, I think that could potentially backfire on the industry. Mr. Kagawa: I guess for me, in Committee, to help me evaluate this Bill, I would like to see some rough estimates as far as what percentage of our time shares are actually paying a fair share because not all of them fall into that category that you are talking about. Mr. Hunt: That is correct. There are a number of projects and my last sort of rough guesstimate between sixty percent (60%) to sixty-five percent (65%) of the whole time share value was generated by three projects; the two Marriott projects and the Westin project. Once you go off those top tier projects and get into those second and third tier type projects, then you see start seeing that greater disparity. When I looked at the assessments for the individual ones on those higher end projects, they are not that far off from condominium prices from wholly-owned, so I do not think there is going to be a major adjustment to those. On other ones, I have seen differentials as high as one hundred eighty-seven percent (187%) between a condo and time share in a wholly-owned condo in the same project. Mr. Kagawa: So you are saying that the other thirty-five percent (35%) are made up of smaller time shares and they are the ones that may be... Mr. Hunt: Larger in count, but smaller in value. They are the ones that will likely have the greater impact. Mr. Kagawa: Okay. What valuation method does the City and County of Honolulu and Hawaii Island have? Mr. Hunt: Hawaii Island and the City and County of Honolulu do not have a methodology for time share. Mr. Kagawa: They leave it like ours is now? Mr. Hunt: I believe they value them as condos like we used to do prior to our Ordinance. All three other Counties continue to value based on highest and best use as wholly-owned condos. The only difference is that Maui has an actual rate differential and separates them from classification while the other two Counties do not. For Kauai, we adopted in 96 for 97 assessments, and I would not even call it a "methodology" because it is not a standard appraisal practice; it was essentially a methodology that was negotiated or a technique that was negotiated that takes the interval prices and either uses a developer sale less a negotiated fifty percent (50%) allowance for cost or the resale prices. What we are seeing is that the resale prices, especially on mature projects, are very, very low now and those values have dropped significantly. Mr. Kagawa: Steve, I have one last question. After the public hearing when it goes to Committee, can you have a brief presentation with some graphs and what have you? COUNCIL MEETING 60 JULY 9, 2014 Mr. Hunt: Yes. The intent that we are trying to do is actually model them. It will be "ball parking" because it is not refined, but because they are not currently using condos to value them, we have to put them into Inodels to select the right condos for each unit; including the floor plan, the floor it is on, and the views that they have. It is somewhat of a science to kind of do that. We are going to do it at a mass level just to kind of get a ballpark range to see the aggregate impact would be of potentially enforcing that Ordinance and what that would be in terms of value and potential revenue at the current rates, and then we will have more to discuss as to whether it deserves an additional class to sort of soften that. Mr. Kagawa: Okay. Thank you. Chair Furfaro: We have an understanding at this point that maybe some of the questions that I put forward actually do not need to come to us by the public hearing, but maybe by the reference to the Committee. If you can get any information from Arta, I would appreciate that. I will give the floor to Mr. Bynum, and then to Councilmember Yukimura. Mr. Bynum: I followed everything that you said because we have talked about this lots of time, but for somebody who is out there in the public— we still have a situation where here is a "condo" and here is a "condo," but technically this one is a "time share" and this one is a "condo." Mr. Hunt: Correct. Mr. Bynum: Same floor plan and same value, in terms of if you sold it as a unit, and the time share paying half the rate of the condo, or considerably less. Mr. Hunt: I will not talk about rate because the rates are different. Mr. Bynum: I am sorry. I always make that mistake. Mr. Hunt: "Value." Mr. Bynum: "Paying half the tax bill." Mr. Hunt: Potentially. Again, if you have a homestead wholly-owned condo versus— the offset in value... they may be the same taxes or could be even lower on the homestead. It just depends. From just a pure valuation standpoint, which is what I am addressing; what we are seeing is that— you are right; you could have a half million dollar ($500,000) condo right next to an identical... abutting each other with the same views and everything, a time share that could be two hundred twenty-five thousand dollars ($225,000). Mr. Bynum: It has the same use and both have visitors that turn over each week. Mr. Hunt: Correct. Mr. Bynum: It is equity... I like the word "fair." COUNCIL MEETING 61 JULY 9, 2014 Mr. Hunt: Yes. Mr. Bynum: This is a fairness issue. Mr. Hunt: Yes. From a valuation standpoint, we need to address equity and fairness. Mr. Bynum: On one level, this Bill just brings us to "assess value times rate, equals tax," which is fair because it is applied equitably. The second issue is that people are freaked out because Maui has a very, very high time share rate. They decided, "These guys that are paying one (1) weeks' worth of taxes— if they pay seventy-five (75) instead of twenty-five (25) and if we can get tax relief to local people, we are going to do that." The rates are set by the Council, correct? Mr. Hunt: Correct. Mr. Bynum: Is it not correct that our Ordinance requires the Council to determine each and every year of what is a fair tax rate for each different class? Mr. Hunt: I believe that is your responsibility, yes. Mr. Bynum: Okay. I can really understand the fear of the time share industry when they look at Maui's experience, but I hear your intent is saying, "Rates is this thing you can do quickly and it does not require an Ordinance. In fact, Council, you have to do it every year. You are supposed to think, as the elected body, what the fair rate is for each class." Is that correct? Mr. Hunt: Correct. Mr. Bynum: Okay, just so the general public understands, this is an equity issue and no doubt, maybe some future Council is going to do what Maui did and jack up the time share rate much higher than even hotels and other types. Mr. Hunt: I think that is the general fear, yes. Mr. Bynum: I think we have delineated those two concerns. Thank you. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: Steve, right now, time shares are not assessed based on value? Mr. Hunt: No. As an appraiser, I can say "no." It is a mathematical formula that calculates an assessment, but it is not value. Ms. Yukimura: Okay. What this Bill does is to put the assessment of time share back to value? Mr. Hunt: Yes. COUNCIL MEETING 62 JULY 9, 2014 Ms. Yukimura: Okay. Though the industry is concerned that we, or the subsequent Councils, would impose a higher than resort rate; what creating a classification of time share gives us the flexibility to even go lower than resort in order to have the time share be able to absorb the jump that is going to happen when we go back to valuation assessment. Mr. Hunt: I do not have a figure of what that number is going to be yet because we have not modeled them, but my assumption is that it could be significant, especially to that thirty-five percent (35%) to forty percent (40%) of the stock. The concern would be can we schedule in to get their taxes not jumping so much because their values are— I do not want to play with value, but by having that tax class, you could essentially phase in getting them back up to whatever the "resort/hotel" class is, whatever that rate is. Ms. Yukimura: Right, it would ease the adjustment. We have gotten huge cries because of our vehicle registration fees, which jumped because we did not do gradual, incremental increases. Thank you very much. Chair Furfaro: Do you still want the floor, JoAnn? Ms. Yukimura: I have a question on the other bill; the Vacant Lands Bill, but we should probably finish the Time Share Bill first. Chair Furfaro: Okay. Steve, just with the nature of the business— I have about a forty-one (41) year investment in the business. Will this Bill— I am going to talk in terms of fractional ownership because we have new product with Embassy and Renaissance. They now have up to one sixth fractional ownership, which is allowed in the State. Mr. Hunt: Correct. Chair Furfaro: Are they going to be encompassed with this evaluation of"incremental ownerships?" What is your thinking on this? Mr. Hunt: The units themselves are currently being valued as if it is a home that is being fractionalized, the home is being assessed using other homes to set that value. It is not considered time share. Under one sixth interest is, by definition, not "time share." Chair Furfaro: It is fractional. Mr. Hunt: It is fractional, but not time share. They do not have to register time share... Chair Furfaro: You have fractional now— the trend, within the resort business, is to find itself in "multi-family" buildings; not just "single-family" residences as fractional. Mr. Hunt: Yes. They are sharing two (2) months amongst six (6) families. Chair Furfaro: Are you addressing that in this Bill? COUNCIL MEETING 63 JULY 9, 2014 Mr. Hunt: Right now, it is not defined in this Bill because it is not time share. This is specifically time share. Chair Furfaro: That answers my question. You are going to get us some of these pieces because you are right— between the Waiohai, Kalapaki project, and the Princeville project, you have three projects right there. They represent thirty-five percent (35%) of the inventory, but sixty percent (60%) of the value. Then you have sixty-five percent (65%) of the inventory, which only represents only about thirty-five percent (35%) to forty percent (40%) of the value. Mr. Hunt: Correct. Chair Furfaro: You are going to have some facts for us on that. Are there other questions on other bills? Same Bill? Okay, I am going to go to JoAnn, and then Mr. Chock and Mr. Kagawa. Go ahead, JoAnn. Ms. Yukimura: Thank you. I want to talk about the Vacant Lands Bill, which is Bill No. 2550. Does that include agricultural land? Mr. Hunt: No. This is only multi-family properties. What happened was when we did our tax on use two (2) years ago, we changed what we called the "apartment class" to "vacation rental class." It is a class of use and the vacant land was not being used as vacation rentals, so we figured, "Where do we stick it? We do not have anywhere." We put it in because it had been paying the same tax rate as resort. They were all at six dollars and ninety cents ($6.90) at that time, per thousand assessed on the land. We put it in with the resort thinking that it is going to be either multi-family, time share, or other type of project. Technically, if it is R-10 or R-20, it is classified as "residential." This is essentially to correct something that was misclassified for the last two (2) years. We want to go back and take those few properties that are vacant land that have not established because our Ordinance says "based on zoning, until such use is established, their zoning is technically residential." We want to correct that and put them into a residential class. Ms. Yukimura: When they make the choice to build something, that may change their classification? Mr. Hunt: Absolutely. Upon build out, if they change it to vacation rental, they go vacation rental. If they homestead it, it is homestead; whatever the use becomes. Ms. Yukimura: Okay. "Vacant land" refers to multi-family zoned lands? Mr. Hunt: Correct. Ms. Yukimura: R-10 or R-20 basically? Mr. Hunt: Yes. Ms. Yukimura: Thank you very much. We actually should put "multi-family, vacant land reclassification" is probably a more accurate description. Residential Investor Tax Classification in Bill No. 2549— I was going COUNCIL MEETING 64 JULY 9, 2014 to ask you the difference between Bill No. 2550 and Bill No. 2549. This one applies to if it has a building on it already? Mr. Hunt: Are we going to stick to the multi-family questions before we go to the next one? Chair Furfaro: Yes. We are going to stay on the question that was surfaced, which the "vacant lands" is referencing "multi-family"; "R-10" or "R-20." Anymore questions on that? Mr. Kagawa. Mr. Kagawa: The vacant land classification will go under one of these eight categories? Mr. Hunt: Yes. It already is. The vacant lands that are "multi-family zoned" are currently in the "Hotel and Resort" and it actually says that in the Ordinance. We did not have a bucket to stick them in. We put them in that class, and then of course, the rates to the Hotel and Resort continue to rise. Many of these R-10/R-20 are located in residential subdivisions, primarily Fuji Beach area, Kapa'a and some areas in Kekaha that have this multi-family that are being used residentially. We just felt that it was an injustice to continue leaving it there, and by technical zoning standards according to Planning, it should be in residential, so this is a correction of an "ill placed"... Mr. Kagawa: I had a constituent who called me about his property right in that area where you are talking about. Mr. Hunt: Okay. Mr. Kagawa: That was the thing— he said he pays for his house at homestead rate. He inherited that property from his parents and he has a large, vacant parcel that is being charged at the hotel rate. He told me, "I have no intention of putting a hotel or anything like that on it, but I am just getting killed. I do not know what to do with the property." He is paying thousands of dollars on that parcel. Mr. Hunt: This would absolutely address that situation. Mr. Kagawa: I think that is great because we were trying to work with Planning and the Real Property Tax Office, and we could not find a solution. I am glad in that case, as far as the effect on everything else, we have some time. I will wait for those E-mails. Mr. Hunt: To put it into perspective just from a revenue standpoint, going from the ten dollars and eighty-five cents ($10.85) to the six dollars and five cents ($6.05) residential race; the two dollars and eighty cents ($2.80) differential— on the properties we have identified that fall into that class, it is about four hundred seventy thousand dollars ($470,000) in revenue loss, but the time share and the residential investor, which we will talk about next, will more than make up for that. Chair Furfaro: Okay, so it is an adjustment in the recipe. Mr. Chock has questions for you on the same item, Steve. COUNCIL MEETING 65 JULY 9, 2014 Mr. Chock: Yes. Just so I am clear, my understanding is that if this person has his house, and then he has maybe three (3) rentals on his property or he intends to build three (3) rentals or more; would he go into homestead at the time of building? Mr. Hunt: No, if he was building rental properties? Mr. Chock: Yes, rental properties. Mr. Hunt: They would be depending on what he was renting. If they were renting vacation rentals, they would be in the vacation rental class, even if one (1) of the three (3) was. Mr. Chock: Okay. Mr. Hunt: If they were all long-term affordable rentals, then he could get homestead on all of it. It just depends on the use. Mr. Chock: It will go into the right bracket. Mr. Hunt: Correct. Ms. Yukimura: Based on use. Mr. Chock: Yes. Thanks. Chair Furfaro: Okay. That is the bottom line. These things are going to be adjusted to be based on use, right? Mr. Hunt: With the exception of vacant land, which is zoning, and this is one that needs to be corrected. Chair Furfaro: Okay. JoAnn, do you have a question for the next Bill? Ms. Yukimura: Yes. I want to go to Bill No. 2549, which is the Residential Investor Bill. Chair Furfaro: Okay. Let us move there. Ms. Yukimura: Thank you. In this case, we are creating a new class. Mr. Hunt: Yes. Ms. Yukimura: What will be in this class? Mr. Hunt: The City and County of Honolulu called it "Residential A" class, but we are using very similar criteria. These are properties that are residential use, not vacation rental; not long-term affordable rentals; or not owner-occupied. There is no exemption and the property values are over one million dollars ($1,000,000) and the properties are improved with a dwelling or a condominium unit. This is primarily luxury investment properties that are used as COUNCIL MEETING 66 JULY 9, 2014 second homes or long-term rentals that are above or at market rates as opposed to below market for the "long-term living (LTL)." Ms. Yukimura: Okay. Very good. Thank you. Chair Furfaro: Are there more questions along that line? Vice Chair Chock. Mr. Chock: Can you explain to me how you came up with the one million dollar ($1,000,000) threshold? Is that with the market? The market can change significantly. Mr. Hunt: It is. We looked at maybe doing something based on a quartile, like the top quartile, but it becomes sort of having to run the job first and figure out what that threshold is going to be. Because of the timeframe to submit an ordinance that we could effectuate for Fiscal Year 2016, we had to submit something with a number or an idea, and without having the background for what a quartile might represent, the top quartile, we did not want to commit to anything. It is certainly easy to say one million dollars ($1,000,000) means it is a millionaire, right? What a millionaire means these days may be different, but from the initial search we did, I think there is about six hundred eighty-seven (187) properties that fit that criteria that are improved properties with dwellings or condos that are over one million dollars ($1,000,000) with no owner occupants. Mr. Chock: Okay. Thank you. Chair Furfaro: Thank you, Steve. I have to tell you though that from a process of future increases and this problem we always have about taxes moving and so forth, the upper quartile approach is probably the better approach. It really is because then on inflation increases, it is constantly adjusting itself; it is constantly drawing a new line. I just wanted to say that. Mr. Hunt: Given the time, I think that is the approach we would have probably submitted initially and we may come back with amendments after the research is done. Chair Furfaro: I just think it is fair and equitable. Property values in the last eighteen (18) months have jumped again. If we have this vehicle that draws the line each year going forward, that might be a fairer approach. Ms. Yukimura: The Chair has articulated my concerned as well, and I think Councilmember Chock, too. I think Paul Brewbaker told my Housing Committee that the median price of a single-family home on O`ahu is going to be one million dollars ($1,000,000) soon. I do not know if it is by valuation or if you minus the homeowner exemptions; that is one thing. I think Councilmember Kagawa was saying that it is about five hundred thousand dollars ($500,000)— I think it is probably close to six hundred thousand dollars ($600,000) here on Kauai already. If things start to skyrocket, this class at one million dollars ($1,000,000) will start covering a lot of people, so I concur that the quartile... Mr. Hunt: At the moment, I think it would be the opposite. The quartile would be a much lower threshold because there are already ten thousand (10,000) properties in the residential class and if we are talking six COUNCIL MEETING 67 JULY 9, 2014 hundred eighty-seven (687) out of ten thousand (10,000), granted we have to filter out all of the vacant land that is in there. Ms. Yukimura: Very good. I thought about that: "It is a quartile of what?" If it is of parcels, that is one thing. We need to find a "working redline," so to speak. Chair Furfaro: That is what we are looking for. Mr. Hunt: Yes. Ms. Yukimura: Okay. Thank you for the discussion. It helps me better understand what is being proposed. Thank you. Chair Furfaro: I have a few more questions on this piece. This is first reading, but we have a lot more to cover and we have appointments this evening. Mr. Bynum, I am going to give you the floor. Mr. Bynum: I will be briefer than I intended. These are improved homes that do not have a full-time resident and are not being rented affordable— is the City and County of Honolulu's new bill not one million dollars ($1,000,000)? Mr. Hunt: That is their threshold, yes. Mr. Bynum: I would just like to point out that we are tasked every year at budget time with looking at all of these things, so changing that one million dollars ($1,000,000) could be done by ordinance during the budget routine. When you said "quartile," I bet that is a whole lot more than six hundred (600) properties. We have median and... would it be based on all of the assessed values of all... Mr. Hunt: Mr. Bynum, I think what you will probably find is that you have a very steep kind peak where there is a range of values that are probably in that three thousand dollars ($300,000) to seven hundred thousand dollars ($700,000) to eight hundred thousand dollars ($800,000), and then you will have this very long tail where you have some properties way out here that are multi, multimillion, and then you will have some of the million. That portion of that skewed tail is probably what we are targeting. If we look at the true quartile on count, it is going to push it way into the middle, and that is a concern. It is also a concern being able to understand when we have to come up with the assessment and run a job that is going to group them every year and how we sort of create that job to say what the quartile is and which properties are going to be re-classed. We are going to have to do this internally and quickly to determine what the assessments are, and of those assessments, which ones get— it is going to be after- the-fact. You have already set your values for the next year and now quickly go and determine where that rate is. You are probably going to want to know what that rate is, too, before you make that trigger. Right now, setting it at a fixed rate is probably skewing it a little too far, but I am just concerned about coming back to the middle too far, too. Mr. Bynum: With six hundred (600) properties here, it is a pretty conservative rate actually, right? COUNCIL MEETING 68 JULY 9, 2014 Mr. Hunt: Yes, and the six hundred eighty-seven (687), I believe, are about one billion six hundred million dollars ($1,600,000,000) in value. I just did a "quick and dirty" on the rate. If we went from six dollars and five cents ($6.05) to like seven dollars and fifty cents ($7.50), it is about two million one hundred thousand dollars ($2,100,000) in revenue just from that small grouping, additional revenue. Mr. Bynum: How much additional revenue did the City and County realize when they instituted the rate this year? Mr. Hunt: Thirty-eight million dollars ($38,000,000) to forty million dollars ($40,000,000); something like that. Mr. Bynum: Okay. Thank you. Chair Furfaro: Before we get too far, and I will give the floor to Mr. Hooser. On Sunday, the median home price for Honolulu was in the paper. It was seven hundred six thousand dollars ($706,000). It is not at one million dollars ($1,000,000) at this point. Just because you say "quartile," the number could be (inaudible), too. It could be the twenty percent (20%), the fifth, or whatever. Mr. Hunt: Correct. Chair Furfaro: I just wanted to say that before we go too further here and speculate. Mr. Hooser, you have the floor. Mr. Hooser: Thank you, Chair. I think just listening to the discussion, we need to be very careful about assuming that one million dollar ($1,000,000) properties can afford more taxes. I know there are lots of family- owned properties that may just have a shack on it and it is worth one million dollars ($1,000,000), but they do not want to sell it because it is a family property and they are not vacation renting it necessarily. I just think that we need to be careful. One million dollars ($1,000,000) is not what it used to be. It kind of begs the question also, and I would be remiss if I did not bring it up, of why we are not proposing an agronomics or other kind of—because this is what we are doing, right? We are doing the same thing that Councilmember Bynum proposed a couple of weeks ago, creating other classifications and splitting things out in order to better tax properties... value and the taxing. Unfortunately, we are not dealing with that now. Do you have any plans as a Finance Office to propose that? Mr. Hunt: I believe we are going to be looking in terms of the ag itself at a valuation issue that could be resolved within the class in terms of land values that are based on a higher "more productive use of the land," if you will; not productive from a food standpoint, but productive from an economic standpoint, I guess. Mr. Hooser: Will that be in time to affect the budget like these? Mr. Hunt: That would not have to necessarily come in the form of a bill because it is internal to assessment; it is a valuation issue, not an ordinance issue, unless you are creating a class, which then it becomes an ordinance issue. COUNCIL MEETING 69 JULY 9, 2014 Mr. Hooser: Do you intend to do that or have a proposal to do that to impact the same budget years that these are being proposed for? Mr. Hunt: We are looking at it. I think the issue is going to be "can we substantiate the values?" It is very difficult to go out and say, "We want to double the diversified for a research ag type of use," without having any kind of economics behind it. Certainly to the degree, you could help provide that information. We would love to look at that. Mr. Hooser: Okay. Thank you. Chair Furfaro: Again, the point as well, because one of the things that gave protection to people who had old family lands like in Ha`ena, Po`ipu, and so forth, was the fact that the primary use was their primary home residence. Mr. Hunt: Correct. Chair Furfaro: We are mostly talking about secondary homes here, so I do not want to get too deviated from what we might end up getting trapped on. This is intended as second homes. Anyway, we had some good meaningful dialogue. You are off to the mainland. We are looking for some things, as Mr. Kagawa suggested, when we get it back to Committee after the public hearing. Any additional information that Arta can provide for us, too, would be greatly appreciated. Mr. Hunt: Thank you. Chair Furfaro: On that note, we are dealing with all three of these Bills here since the Finance Director ran over and spent time with us. It has been much appreciated. We will let you go and we will see if there is any other public testimony on these items because we do have people in the audience now. Mr. Hunt: Thank you, Chair and Councilmembers. Chair Furfaro: We are on first reading on a couple of tax bills submitted to us by the Administration. Is there anyone from the audience who wishes to testify? Seeing nobody, I will call our meeting back to order. General discussion before I ask to... I even forget which item we are on. We are on the last of the tax Bills, right? Go ahead, Mr. Bynum. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Bynum: I am glad Steve was able to come over here. I know he has a very intense schedule coming up. Thank you, Steve. I am supportive of all of these Bills. One is Steve is actually going to reduce revenue, but it is just a fairness kind of fix it thing. Thank you for that initiative. The other two (2) Bills are to give us options to fulfill our role. We are asking the Finance Chair what the rate might be. Guess what? He does not get to decide that. His Mayor gets to propose a rate and we have that responsibility. We need to keep our options open and have discussions about tax situations where the situation has changed like it has in the time share industry. I am going to thank Mr. Hooser for saying something about agronomics because it is the exact same situation: a COUNCIL MEETING 70 JULY 9, 2014 reasonable bill to give us options to discuss as particularly in a situation where the fundamentals underneath, like the time share, have changed. I am disappointed, but that disappointment— I do not want it to hold up us completing these Bills. I want to give this and future Council all of the options that they need. I want to thank Mr. Hunt and the Mayor because these Bills are a long chain of bills that I have supported and helped usher through the Finance Committees and entertain amendments because we have restructured our taxation with these final Bills almost completely in a way that is fair and equitable. That is a great improvement for all of us, even if we maybe do not like who pays what portion of the bill. Thank you very much. Chair Furfaro: Further discussion? Mr. Kagawa. Mr. Kagawa: Thank you for this discussion and having Mr. Hunt here; I think we could go a little deeper into the conversation. I think the public is going to know more about what is coming up in the public hearing. Like Councilmember Hooser said, not every homeowner that has a one million dollar ($1,000,000) property is rich. The first time I got on the Council, I got a call from a homeowner right on the beach of Hanalei Bay and they said that they are the only property that has not bought or sold. They said, "Please help us. We are getting killed by our taxes. It is not us because we are not moving." It is really hard to just pull out a number and try and be fair because there are some that had nothing to do with the rise in the real estate and they are going to be affected by this Bill. Instead of helping them, if I approve this, I will be hurting them and I do not think that is being fair. I think we have to look at the big picture, as Councilmember Hooser said, and make sure that we know what we are doing when we finally approve something like this. Thank you, Chair. Chair Furfaro: Further discussion here? Go ahead, JoAnn. Ms. Yukimura: I also want to thank the Administration for these Bills. I believe that they are trying to move towards a fairer tax code and give us more flexibility in terms of how we set rates and adjust it so that there is a fair taxation overall. I also want to say as to the agronomics proposed classification that the Bill is not dead, but I appreciate the Administration looking at the valuation issue. That is one thing that I needed some time to understand and absorb, and in the discussions that I have had with the Administration, I find them open to making some adjustments that can be done without an ordinance, although I think we should still look at the Ordinance as well. It is not dead; it was just deferred, so there is still time to work on that. Chair Furfaro: Mr. Chock. Mr. Chock: Thank you, Steve, for being here and catching us in time before your trip. I am looking forward to getting more of the details, like Councilmember Kagawa is. There are some things that I think we can just tighten up and make sure that we are getting people taxed according and specifically to second home or investment properties in that class. Also, I want to make a request that we continue that discussion on the agronomics or specifically how you phrased it, "the opportunity to look at soil or economic valuation that might be just a real `win-win' situation for all involved." I look forward to that conversation and I just wanted to make the request that we continue that. Thank you. COUNCIL MEETING 71 JULY 9, 2014 Chair Furfaro: All I am asking for here is an approval on item 3, which was the first reading on Proposed Draft Bill No. 2550. We have voted on the others. The motion for passage of Proposed Draft Bill (No. 2550) on first reading, that it be ordered to print, that a public hearing thereon be scheduled for August 13, 2014, and that it thereafter be referred to Finance & Economic Development (Tourism / Visitor Industry / Small Business Development / Sports & Recreation Development / Other Economic Development Areas) Committee was then put, and carried by the following vote: FOR PASSAGE: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL — 6, AGAINST PASSAGE: None TOTAL — 0, EXCUSED & NOT VOTING: Rapozo TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. Chair Furfaro: I need a personal note of privilege, if I can. Members, would you extend me a courtesy? I want to make a note here that I received an E-mail at 2:17 p.m. from Lonnie Sykos offering testimony on an item that we performed at 1:50 p.m. This dealt with the receipt of the Ethics comments and the oversight. I just want to make sure Lonnie understands that we have received his piece, but we cannot do business where people are giving us testimony from home after the fact on the items that we responded to. This is one of the rules that we provide each day in the morning and, in fact, the postings are done six (6) days in advance. If you can, you should submit written testimony to the Council E-mail address in advance of the item, not after the item. At the same time, I want to extend this courtesy to let Lonnie know that we did receive his testimony as it relates to the private citizens being taxed with the government affair oversight and his comments are that the requirements should be tightened up. We saw a little of that in Honolulu yesterday, but I did want to read that into the record, but this will not be a practice of the Council. Thank you for the personal privilege. Now I believe we are going into Executive Session. Am I correct? Ms. Fountain-Tanigawa: Yes. We have three Executive Session items. Chair Furfaro: Al, may you please come up to read the items? There being no objections, the rules were suspended. Mr. Castillo: Council Chair and Councilmembers, Al Castillo, County Attorney. Council Chair, if I may, since all of these Executive Sessions are almost identical, I would like to read the three of them all at once. Chair Furfaro: Go right ahead. Mr. Castillo: Thank you. EXECUTIVE SESSION: ES-739 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the COUNCIL MEETING 72 JULY 9, 2014 Council with a briefing on the retention of Special Counsel to represent the County of Kauai in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit 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. ES-740 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent Shaylene Iseri-Carvalho in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit 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. ES-741 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kauai County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing on the retention of Special Counsel to represent Jake Delaplane in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit Court), and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Chair Furfaro: Thank you. Mr. Bynum moved to convene in Executive Session for ES-739, ES-740, and ES-741, seconded by Ms. Yukimura. Chair Furfaro: Discussion? Mr. Hooser, you have the floor. There being no objections, the meeting was called back to order, and proceeded as follows: Mr. Hooser: I would just ask for a little bit more explanation for the public's benefit. This is an employee of the County the in Prosecutor's Office suing the County. Is that correct? Chair Furfaro: I would give you my overview, but I am going to call Mauna Kea, who can specifically address this because we will have to come back and approve money for this defense. Mauna Kea, could you please answer Mr. Hooser's question? There being no objections, the rules were suspended. MAUNA KEA TRASK, First Deputy County Attorney: Thank you, Chair and Honorable Members of the County Council. For the record, First Deputy County Attorney Mauna Kea Trask. To answer Councilmember Hooser's question, this is a first amended complaint filed with the Fifth Circuit Court, State of Hawaii, June 9, 2014. This is a public document. It is available at Fifth Circuit Court. It states in here, "Plaintiff Gausepohl-White is a resident of the County of COUNCIL MEETING 73 JULY 9, 2014 Kauai, State of Hawaii. At all times relevant herein, Plaintiff was employed by Defendant County as a Victim/Witness Counselor." Mr. Hooser: Could you speak a little bit louder? I am sorry. Mr. Trask: Sure. "At all times relevant herein, Plaintiff was employed by Defendant County as a Victim/Witness Counselor." Mr. Hooser: The reason I am asking, Chair and Mr. Trask, is because we have a lot of these employee actions coming against the County. My last count was about eight (8) or nine (9) of complaints, legal actions, or claims of harassment or whatever. I think it is important that we do not just— this is not negative towards you or the County Attorney's Office in any way, but I think it is important that we just do not quote a law case and go in the other room and talk about it. I think the public needs to know the nature of these cases within the parameters that we are allowed to tell them. I do not expect any privilege to be waived or be violated here, so that is the reason I am asking. In this case, can we say what the claim is? What is public record? Mr. Trask: As far as what is public record, to answer your question, anyone can go down to the Fifth Circuit Court and look at the court files that are filed as public documents. There is a cabinet full of recently filed complaints of this year and anyone can go down to the court and get them, so that is available in this instance. For this case, per the complaint filed: Count I, violation of Title VII of the Civil Rights Act of 1964— again, these are allegations; these are not to be taken as fact. This is a complaint made, so I want to make that clear. That is not necessarily true. Mr. Hooser: Okay. Mr. Trask: These are just counts. Count II: the allegation is a violation of Hawai`i Revised Statutes Section 378-2; Count III: violation of Hawai`i Whistleblower's Protection Act; Count IV: intentional affliction and emotional distress; Count V: breach of contract. Again, to be specifically clear, these are merely allegations and claims. They are not determined to be true at this time. Mr. Hooser: If you put that into English without— I acknowledge that these are just claims and they are not proven, but is this an employee that worked in the Prosecutor's Office and was claiming that she was harassed? What would be the common way to describe what this complaint is? Mr. Trask: Unfortunately, being a lawyer, I do not have much common sense; I just have legal sense. I do not know how to answer that question. Maybe if we could talk in the back, it would be better. Mr. Hooser: Okay. This was filed in June of 2014. Is that what you said? Mr. Trask: First amended complaint, according to the document itself, was filed on June 9, 2014. COUNCIL MEETING 74 JULY 9, 2014 Mr. Hooser: But the Prosecutor that allegedly is involved in this is no longer a Prosecutor and has not been for one year and a half(1.5) or so, so... Mr. Trask: I am not sure when the Prosecuting Attorney Justin Kollar went into office. I believe it was December 1, 2012. Mr. Hooser: But these incidences were alleged to have occur prior to 2012 or... Mr. Trask: Again, it is stated in the complaint. I do not want to have to go through it right here, but... Mr. Hooser: It is public information, so I am just trying to— the public... the millions that are watching can all go down to the court and look at the file. I just think you need to do a better job at letting people know what is going on. This is an ongoing think in the County, so I think we need to be more upfront about it. Mr. Trask: I would encourage people to go down to the court if they have questions and look at these documents. I would encourage members of the public to come down to the County Clerk's Office and get access to these draft bills and bills that could be shown. This is there government. They are the democracy; they are the County of Kauai. It is open, so it may seem difficult, but I want them to know that it is not. Go down, make your request, and get the documents. I want people to know that you can have access and get these documents. Mr. Hooser: I appreciate that. When again was the incident? Round numbers? Mr. Trask: It is difficult to ascertain it. According to the complaint, the earliest date is approximately August 2011 and the latest date is approximately September 2012. Mr. Hooser: Are there any other issues with employees hanging out there with the Prosecutor's Office that... Chair Furfaro: Excuse me, that is not the agenda item today. The agenda item specifically is that case. If there are, we can send you correspondence in a question, but let us focus on the agenda item. Mr. Hooser: Thank you. Chair Furfaro: Mr. Bynum has the floor. Mr. Bynum: I was ready to just into Executive Session, but this first amended complaint dated June 9th is a public document, correct? Mr. Trask: Yes. Mr. Bynum: So the name of this case is "Diana Gausepohl-White, Plaintiff, versus County of Kaua`i, Shaylene Iseri-Carvalho, and COUNCIL MEETING 75 JULY 9, 2014 Jake Delaplane; and DOE Defendants 1-100." That is the official name of this complaint, correct? Mr. Trask: That is the caption, correct. Mr. Bynum: All of these allegations, and they are allegations, are contained in this document in some detail, correct? Mr. Trask: Yes. Mr. Bynum: You mentioned County Ordinances, Bills, and Draft Bills. You can actually even find those online. They are not easy to find, but they can be found online. These court documents are not available online are they? Mr. Trask: The documents themselves, no. But you can search the document list on files, so you can look per party name or case number. Mr. Bynum: So any of the cases in any court that the County is involved in—these are public documents and the public can receive them. Is that correct? Mr. Trask: I hesitate to say "any." There are some... I do not know what they could be... Mr. Bynum: The filings in court: the complaints, cross filings, and actions of the court. Mr. Trask: As long as it is not filed under seal and certain other specific instances; generally, all documents file with court are public. Mr. Bynum: Right. Just one other thing, you correctly indicated two or three times these are merely allegations and have not been proven in a court of law. It is your ethical responsibility to do that, is it not? Whenever allegations are presented in a legal arena that has not been proven in a court of law—what are the ethical obligations of an attorney? Mr. Trask: You have a duty of candor to the court and to your client. Rules of Courtesy and Civility and Rules of Professional Conduct—you do not lie and you do not try to fudge, either through... Mr. Bynum: Is there not a specific ethical responsibility related when you identify someone as a "defendant?" Mr. Trask: I think it is just accurate. There may be an ethical rule, but I think it is more of an accurate determination to say that they are allegations. Mr. Bynum: Well, you just did it three or four times. The ethical rule very specifically in the Rules of Conduct is that when you identify someone as a defendant, you must in the same discussion say, "These are merely allegations that have yet to be proven in a court of law." COUNCIL MEETING 76 JULY 9, 2014 Mr. Trask: Well, I am glad that I inadvertently complied with the rules of ethics. Mr. Bynum: So am I. Thank you very much. Chair Furfaro: JoAnn, do you want the floor? Ms. Yukimura: Yes. I feel like there should be no hesitation in giving us the statement of facts of the case that are public. Mr. Trask: Well, if you want me to read it, I can... Ms. Yukimura: No. I just want you to affirm that these "alleged actions" took place during the term of the former Prosecutor • Shaylene Iseri-Carvalho. Chair Furfaro: I think he already stated that it occurred between June of 2011 and September of 2012. Is that not what you told us? Mr. Trask: I think so. Ms. Yukimura: So are you confirming that? Mr. Trask: Again, I do not have the document to tell me specifically when the last election was, but it was when it was. Ms. Yukimura: It was early November of 2012. Mr. Trask: Like the Chair said, I think I said August 2011 to September 2012, were the dates. Again, the complaint itself does not name... it talks about an array of dates, but at this point, I am not able to determine much specifics... Ms. Yukimura: But they are against the former Prosecutor in her official position as Prosecutor. Are they not? Mr. Trask: Yes, official capacity. Ms. Yukimura: Thank you very much. Chair Furfaro: I think that was well established earlier. I do want you to know that your explanation and the references that we have available to us satisfied me. At this point, as has been my practice, I will call for a roll call vote on the motion to go into Executive Session. There being no objections, the meeting was called back to order, and proceeded as follows: Ms. Fountain-Tanigawa: Did you want a roll call on each individual item or all three? Chair Furfaro: All three. Ms. Fountain-Tanigawa: Okay. COUNCIL MEETING 77 JULY 9, 2014 The motion to convene into Executive Session for ES-739, ES-740, and ES-741 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL — 6, AGAINST EXECUTIVE SESSION: None TOTAL — 0, EXCUSED & NOT VOTING: Rapozo TOTAL — 1, RECUSED & NOT VOTING: None TOTAL — 0. Chair Furfaro: Now I do understand from what is going to be requested of us, we will have to come back to the floor to address the request of the County Attorney. Members, please meet in the Executive Chambers in five (5) minutes. Thank you. There being no objections, the meeting recessed at 3:36 p.m., to convene in Executive Session. The meeting reconvened at 4:14 p.m., and proceeded as follows: Chair Furfaro: We are back from Executive Session. To the Clerk, there is a request in front of us by the County Attorney. Please read those items for the record. COMMUNICATIONS: C 2014-202 Communication (06/27/2014) from the County Attorney, requesting authorization to expend funds up to $10,000 to retain Special Counsel to represent the County of Kaua`i in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit Court), and related matters: Mr. Kagawa moved to approve C 2014-202, seconded by Ms. Yukimura. Chair Furfaro: Mauna Kea, may I ask you to come up for a moment? Are we talking about the one amount, and then we are going to read the three cases? What is your preference here? There being no objections, the rules were suspended. Mr. Trask: It would be ten thousand dollars ($10,000) each; thirty thousand dollars ($30,000) in the aggregate. Chair Furfaro: Okay. Please read all three. I am sorry that Mr. Kagawa made the motion, but our attempt is to stay with the ten thousand dollars ($10,000). Mr. Trask: No, each. Chair Furfaro: Yes. I know you are asking, but we are going to read all three. We have discussion that you will get to a point that you negotiated ten thousand dollars ($10,000) and get back to us. Mr. Trask: Correct. Chair Furfaro: Okay. Please read the other two. COUNCIL MEETING 78 JULY 9, 2014 There being no objections, the meeting was called back to order, and proceeded as follows: C 2014-203 Communication (06/27/2014) from the County Attorney, requesting authorization to expend funds up to $10,000 to retain Special Counsel to represent Shaylene Iseri-Carvalho in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit Court), and related matters: Mr. Bynum moved to approve C 2014-203, seconded by Mr. Kagawa. C 2014-204 Communication (06/27/2014) from the County Attorney, requesting authorization to expend funds up to $10,000 to retain Special Counsel to represent Jake Delaplane in Diana Gausepohl-White vs. County of Kauai, et al., Civil No. 13-1-0360 JKW (Fifth Circuit Court), and related matters: Mr. Bynum moved to approve C 2014-204, seconded by Mr. Kagawa. Chair Furfaro: There are three items here totaling thirty thousand dollars ($30,000), but the cumulative expense at the ten thousand dollars ($10,000) mark for all three— the County Attorney will report back to the Council. We have three motions and three approvals. May I ask just for one vote? The motion to approve C 2014-202, C 2014-203, and C 2014-204 was then put, and carried by the following vote: FOR APPROVAL: Bynum, Chock, Hooser, Kagawa, Yukimura, Furfaro TOTAL– 6, AGAINST APPROVAL: None TOTAL– 0, EXCUSED & NOT VOTING: Rapozo TOTAL– 1, RECUSED & NOT VOTING: None TOTAL– 0. Chair Furfaro: Thank you very much. On that note, our business for the day is complete. This Council Meeting of July 9th is now adjourned. ADJOURNMENT: There being no further business, the meeting was adjourned at 4:17 p.m. espec ully submitted, \ JADE . FOUNTAIN-TANIGAWA Deputy County Clerk :cy • ATTACHMENT 1 COUNTY COUNCIL _ •OFFICE OF THE COUNTY CLERK Jay Furfaro,Chair °F p Mason K. Chock, Sr.,Vice Chair x �G9 Ricky Watanabe,County Clerk Tim Bynum ;�. � Jade K.Fountain-Tanigawa,Deputy County Clerk Gary L.Hooser 9 Ross Kagawa tp. : Mel Rapozo \? c c.,T c AQ Telephone(808)241-4188 JoAnn A. Yukimura of :' Fax (808)241-6349 Email cokcouncil @kauai.gov Council Services Division 4396 Rice Street, Suite 209 Lihu`e,Kauai,Hawaii 96766 MEMORANDUM July 9, 2014 TO: Jay Furfaro, Council Chair an Member the Kaua`i County Council FROM: Ricky Watanabe, Count Clerk RE: CHARTER AMENDMENT PETITION I authorize the release of the opinion from the County Attorney dated July 8, 2014:1E- Thank you for your attention to this matter. Should you have any questions or require additional information, please feel free to contact me. RW:aa cc: Alfred B. Castillo, Jr., County Attorney +Ned-as CRA-580,, Wt L`&h LS ih l2srin x- 4u cA- 4131201- t9ttcs4- C.Ftcd., as C.rA -6131 AN EQUAL OPPORTUNITY EMPLOYER