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HomeMy WebLinkAbout07/23/2014 Council minutes COUNCIL MEETING JULY 23, 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, Kauai, on Wednesday, July 23, 2014 at 8:44 a.m., after which the following members answered the call of the roll: Honorable Tim Bynum Honorable Mason K. Chock, Sr. Honorable Gary L. Hooser (excused at 11:03 a.m.) Honorable Ross Kagawa Honorable Mel Rapozo Honorable JoAnn A. Yukimura (excused at 11:03 a.m.) Honorable Jay Furfaro APPROVAL OF AGENDA. Mr. Chock moved for approval of the agenda as circulated, seconded by Ms. Yukimura, and unanimously carried. Chair Furfaro: For the Public Comment period, this is a full agenda in front of us, but accordingly and from a housekeeping standpoint, I am going to let you folks know that the decision two (2) weeks ago ended in a tie. Therefore, that is what required today's meeting. Today's meeting is required as the first agenda item and shall be limited to the question whether the petition of presentation is appropriate and is in it appropriate form and contents, which will be submitted to the voters if it is approved by the Council. Again, the focus is on the questions on the petition if it is presented in its appropriate form. So, we will be taking public comment on that item first, and it will be the first item that we handle. Because of the time limit and members leaving, for those of you, should know that we have members that are leaving today because today is also in front of the Magistrate, our hearing of Kaua`i's lawsuit on our Ordinance No. 960. (Ms. Yukimura was noted as not present.) Chair Furfaro: So, we have members that want to be present. I will be limiting the first round of testimony based on the time element to have a full Council, to three (3) minutes. I believe we have twelve (12) people signed up. SCOTT K. SATO, Council Services Review Officer: Chair, we have thirteen (13) as of this point, for the regular item, C 2014-199. Chair Furfaro: Okay. We have thirteen (13) signed up. Is there anyone else that wishes to sign up at this time so I can gauge the time allocated? Yvette, we have one (1) person that is holding up their testimony form. On that note, let us go to the Special Order of the Day, item (E). Mr. Sato: Chair, did you want to do (D), Public Comment, and see if anyone wanted to testify? COUNCIL MEETING 2 JULY 23, 2014 Chair Furfaro: That is a good point. I referenced that again. I believe the majority of you are here for the special item, but is there anyone here that wishes to give testimony on any other item under our Rule of 13(e)? Alice, and then I cannot see who is in the back, but you will be next. This is for all other agenda items. 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). There being no objections, the rules were suspended to take public comment. (Ms. Yukimura was noted as present.) ALICE PARKER: Thank you. Chair Furfaro: Alice, let me read the Rule again one (1) more time. Ms. Parker: Yes. Chair Furfaro: Under Rule 13(e), you may testify on any item on the agenda with an allocation of three (3) minutes. There will be no questions and answers (Q&A) from the Council on this portion of the testimony. This is solely for the convenience of being able to give testimony on any agenda item early so that people may move on. Alice, you have the floor. Ms. Parker: Thank you. My dog and I thank you. Anyway, I want to promote, expand, and partially congratulate you all on the Charter Amendment to fill Council vacancies with the person who was next in line with the highest vote. This encourages people to vote and to realize that their votes do matter and their voices do matter. I think that is a terrific way to go. The other item I briefly wanted to speak on is public access to beaches and that sort of thing. This island is so beautiful and the marvels are so great. You are scowling. Is that not on public access? Chair Furfaro: Me? No. I am puckering from my tea. Ms. Parker: Oh, okay. Chair Furfaro: And I think if you... Ms. Parker: So, it was not me. It was the tea. COUNCIL MEETING 3 JULY 23, 2014 Chair Furfaro: No. I think if you go back twelve (12) years ago when I was on the Planning Commission, I was one of the promoters of this. So, know it is the tea and it is Earl Grey by the way. Ms. Parker: Okay, and thank you so much because we all do need access. Thank you. Chair Furfaro: Thank you, Alice. Next speaker, please. BONNIE BATOR: Good morning. My name is Bonnie Bator. I live in Anahola. I am very blessed to live there. Dear Councilmembers, aloha. Please pass the Resolution in favor of letting the General Election voters decide whether taxpayer moneys be allocated to the Public Access, Open Space, and Natural Resources Preservation Fund. This Resolution is especially crucial since Mayor Carvalho, Jr.'s Administration wanted to decrease funding for the fiscal year budget of 2014-2015 to the Public Access, Open Space, and Natural Resources Preservation Fund. Beautiful Kaua`i is under bombardment of an onslaught of multibillion dollar luxury mansions and resorts, upscale shopping centers, gated communities, and rampant development from the South Shore and all points north. Hawaiian and local people's access to generational hunting, gathering, and fishing is constantly being denied due to the assault by those of the one percent (1%). The only ones in an income bracket that can afford multimillion dollar lots and the multimillion dollar estates to be constructed on them. Lots of these are second and third mansions, as they own mansions all over the globe. The Kaua`i Planning Commission constantly continues to allow this rampant development due to the disadvantage and the detriment to the residents of Kauai. Case in point, subsistence fishing, gathering, and hunting is particularly necessary in these challenging economic times. Many subsistence rights have been already taken away and even the bit that remain are being taken away, not to mention that ninety percent (90%) of our food is imported. Prices of all kinds of food items are going up and up and the package sizes are shrinking. Furthermore, with lots of non-stop flights direct to Lihu`e, proliferation of more rent-a-cars and the impact of multitudes of both visitors and residents on park, trails, and beaches with limited infrastructure incapable of handling the pressure. This Resolution will go a long way in empowering the struggling people of Kauai an advantage to hopefully set aside some open space/natural resources for future generations. Mahalo, County Council, for your vision of this Resolution to let voters decide whether taxpayers moneys can be allocated for public access and open space projects. I, and my ohana, appreciate the foresight of this Resolution and it is really distressing that Mayor Carvalho, Jr.'s Administration wanted to decrease funding for open space funding to secure preservation for future generations. What is up with that? How can he say he is for Kaua`i's people? Mahalo for you valuable time. Aloha. Chair Furfaro: Thank you. Ms. Bator: Thank you. Chair Furfaro: Next member in the audience that wishes to speak on any other agenda item. I think we had a third hand up. Did you want to speak, ma'am, on any other agenda item? I am sorry, you have to come up to the microphone for the purpose of recording your comments. COUNCIL MEETING 4 JULY 23, 2014 CAROL AVALON: Sorry, I never did this before. My name is Carol Avalon. Chair Furfaro: Hi Carol. Ms. Avalon: I wanted to speak on the Ordinance No. 960, but I do not know if this is the appropriate time. RICKY WATANABE, County Clerk: Ordinance No. 960 is not on the agenda. Chair Furfaro: Hold on everyone, instead of having the dialogue here. Mr. Clerk, Ordinance No. 960 is not on the agenda. It is with the Magistrate in Honolulu. Thank you. So, Carol, let me give you an explanation. The agenda is open for public speaking as long as the item is posted. That item, Ordinance No. 960, is being heard today in Federal Court by the Magistrate. So, we will not take testimony here. Ms. Avalon: Okay. Thank you. Chair Furfaro: Okay? Ms. Avalon: Thank you. Chair Furfaro: I hope you understand. Ms. Avalon: I absolutely do. Thank you. Chair Furfaro: Thank you. Mr. Kagawa, you have a question? Mr. Kagawa: Yes, Chair. Perhaps she wants to speak about ES-745, which relates to the Syngenta lawsuit versus the County. Chair Furfaro: That is true. Mr. Kagawa: So, if that is what she wanted to talk about, then now would be the appropriate time. Chair Furfaro: So, I want to make sure you understand. There is an item that is dealing with the Svngenta lawsuit that is in our Executive Sessions. That is what Mr. Kagawa is pointing out. If you wish, you may have three (3) minutes to speak on that with no comments back from the Council, but you may speak on that if you would like. Ms. Avalon: Okay. My name is Carol Avalon. I first came to the island in 1999. I brought five hundred (500) people to the island in my position as an Event Coordinator, Health and Wellness. Then, I also came here in 2003 and lived here. So, I have a deep respect for this island. So, I have been doing some of my own...and I am also an Investigative Reporter for the World Business Academy which is an organization on the mainland that asked me to come here and research and get some information so that they can publish it throughout the United States about what is happening on the island regarding Ordinance No. 960. So, I have been doing some of my own research this morning, and I understand that COUNCIL MEETING 5 JULY 23, 2014 California, through the Department of Pesticide Regulation, put into a place a use reporting system called PUR, which gives their Counties the right to put in place their own pesticide regulations. So, I am just, and I know you cannot answer me, but I want to understand the position of the Hawaii Department of Agriculture in Honolulu as it relates to the County of Kauai and I ask myself, why our State is not standing behind this County and this Council to put forth pesticide regulation for our County? I know you cannot answer, but that is my inquiry today and what I have been researching. Chair Furfaro: At the discretion of the Chair, and I am the Chair, I can say to you, our Bill deals with regulations on pesticides, setback, and disclosure. That is what is being heard by the Federal government. We understand your point. Ms. Avalon: Thank you. Thank you very much. I appreciate all of you and all of the hard work you are doing. I know this is not easy for anyone. Thank you. Chair Furfaro: Thank you. Mr. Kagawa. Mr. Kagawa: Personal privilege. Chair Furfaro: Personal privilege. Mr. Kagawa: Tomorrow I have a meeting with the State Department of Agriculture, the new Director, Scott Enright, and you approved that travel. I will be asking some of those questions as to how the State can get more involved and what are their plans for the additional two (2) workers that they are planning to have here. Again, my dialogue with the State continues. I said that when we had Bill No. 2491 and I continue that work. I will also be meeting with Department of Health Deputy Director, Gary Gill, and asking those types of questions that I raised prior and seeing how far they have come. Thank you. Chair Furfaro: Again, we appreciate your follow-up, and that was given as a personal privilege. Would you like a personal privilege, sir? Mr. Hooser: I would like a personal privilege since Councilmember Kagawa raised the topic. I have been in communication with the Governor as well as the Director of Health, as well as Director Enright also, and pushing them almost daily to get more engaged and more involved in helping our community. Actually, the Director of Health, Dr. Rosen, has responded and said that the birth defect registry, they are paying special attention to that and trying to update that for Kauai so we could have some clear data on that, but there is some progress on that. I wanted to share that. Thank you. Chair Furfaro: Gentlemen, and I will top that with a personal privilege myself. All of my correspondence is available to you, that to the Federal government, the Health Department, as well as the Governor. So, you are welcome to my correspondence as well. Anymore personal privileges? There being no further public comment, the meeting was called back to order, and proceeded as follows: COUNCIL MEETING 6 JULY 23, 2014 Chair Furfaro: If not, we are going to roll right into what is referred to the Special Order of the Day. Mr. Clerk, could you read that item? SPECIAL ORDER OF THE DAY: 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 Kauai County Charter. (Mr. Kagawa was noted as not present.) Chair Furfaro: Thank you. Members, before we go forward, is there anyone that so wishes to have dialogue with the County Attorney before we go forward on this follow-up item? None. Okay, on that note, we will go for the first registered speaker, please. Mr. Watanabe: Chair, we have fourteen (14) signed up so far. The first speaker is Parker Croft, followed by Dorothy Kulik. Chair Furfaro: To the Clerk's Office, please note I have allowed three (3) minutes for an alarm because of the travel schedule for today. There being no objections, the rules were suspended to take public testimony. PARKER CROFT: Mr. Chairman and Councilmembers. Parker Croft is my name. My family farm is in Kilauea. I speak on behalf of the thousands of Kilauea's and Kaua`i's registered voters whose clear will is that this matter be decided before the voters of Kaua`i in this year's election. The merits of our position are clear and beyond question. First, a substantial population of Kauai has gone to significant efforts to demonstrate that this is their will. That is a fact. Second, if this question appears on the ballot, then the will of the people will be heard in putting it before the electorate. If it is defeated by the people in the election, no damage will have been done. No harm done. If the will of the people is frustrated in putting this before the electorate, then significant damage will have been done. It will be done to Kaua`i's perceived governance. Further, we will not know what the electorate or that opportunity might have provided, and this is a tragic loss and a failure. Fourth, before you, I speak as a legislative body, not a judicial body. I repeat. This is a legislative body not a judicial body. If the amendment is challenged in court, then that is the proper venue to determine its future. The separation of the powers that determines that neither the Legislative nor the Executive branches of our government determine the legality of the amendments. It is clear. There have been legal opinions on both sides and I am confident that the lawyers have offered the best advice that money can buy. The critical point is that the legal opinions of the attorneys do not, at all, rise to the stature of a judicial decision. They are merely the opinions of paid consultants. In closing, the people of Kaua`i have demonstrated their clear will to have the Charter Amendment decided electorally. Significant and irreparable harm will result by frustrating the voter's will. No harm will be done by going forward with the inclusion on the ballot. Ultimately, it is the proper role of the judicial process to determine the proposed Charter Amendment's legal status. I ask you to support the will of the voters to take this proposed Charter Amendment and place it on the ballot... COUNCIL MEETING 7 JULY 23, 2014 Mr. Watanabe: Three (3) minutes. Mr. Croft: ...and allow the voters to decide what that should be. I thank you for your patience and your hard work on this. Chair Furfaro: Thank you. We have a question for you. Councilmember Yukimura. Ms. Yukimura: Hi. Mr. Croft: Aloha. Ms. Yukimura: I am sorry, I missed your name. Mr. Croft: Parker Croft. Ms. Yukimura: Parker. Thank you. You said that the will of the people of Kaua`i has been demonstrated? (Mr. Chock was noted as not present.) Mr. Croft: Yes. I think that there had been a number of signatures that have been offered to the County government and that there was a tremendous amount of effort put together to organize that. The people who signed their names were demonstrating their will and this level of effort rises to the recognition that certainly, people are interested in this. Ms. Yukimura: Well, people are certainly interested, no doubt about that, but two thousand (2,000) or three thousand (3,000) people do not necessarily represent the will of the people because we decide things by majority. So, until it gets on the ballot, how do you know what the will of the people is? Mr. Croft: What I intend is that the will of those people who signed is demonstrated. Whether the majority of the populous, the registered voters yields one way or another, can only be determined if it is put on the ballot. (Mr. Chock was noted as present.) Ms. Yukimura: Certainly. Thank you for clarifying. Mr. Croft: Let me follow-up. If that is not put on the ballot, then your question is very pointed. It will not be determined. Ms. Yukimura: Okay. Mr. Croft: But those who did sign, represent the registered voters and many people who are not registered voters. Ms. Yukimura: Well, yes... Chair Furfaro: Okay, JoAnn, you need to pose a new question. COUNCIL MEETING 8 JULY 23, 2014 Ms. Yukimura: Yes, I am trying to pose a new question. So, the Charter requires a certain number of votes or signature in order for something to get on the ballot, and that is what we are trying to determine today. What is the required number of signatures to get a matter on the ballot? One, if it is in fact a Charter Amendment, or two, if it is in fact a Bill for an Ordinance. Mr. Croft: I am not prepared to give you a definitive answer. Ms. Yukimura: Okay. Thank you very much. Oh, one (1) other question. If a proposal was made from people who wanted to support the right to farm, which is seeing as contrary to sometimes environmental protection, would you argue that they too, could put a Charter Amendment on the ballot even though it is not in substance of a Charter Amendment? Mr. Croft: In principle, I believe that the Bills that go before the electorate are the best way to decide the will of the people and the law. So, it is better to err on the side of putting a Bill before the electorate and letting democracy take its course then to frustrate whether that is one side or the other, and that would include the right to farm. Ms. Yukimura: Okay, but, a democracy has determined what the present Rules of the Charter are for getting an issue on the ballot. So, do you think we should follow those Rules of the Charter for putting an issue on the ballot? Mr. Croft: I think that the Rules of the Charter should be followed in both spirit and letter, and if the intent is to enable the voters of Kauai to have decisions made by those voters, than that is the preeminent concern. Ms. Yukimura: True, but there are two (2) ways to get an issue on the ballot, and that is what we are trying to decide. Thank you. Mr. Croft: You are very welcome. Thank you all. (Mr. Kagawa was noted as present.) Chair Furfaro: Next speaker. Mr. Watanabe: Next speaker is Dorothy Kulik, followed by Joan Porter. DOROTHY KULIK: Good morning. My name is Dorothy Kulik and I have been a resident and registered voter of Kaua`i for one (1) year now. On July 14, 2014 I contacted the County Clerk's Office. I was passed to Ms. Darrellyne Caldeira, the Council Services Assistant II. When Ms. Caldeira failed to specifically answer my question, she passed me to Mr. Peter Morimoto, the Council's Legal Analyst. I told Mr. Morimoto that I was willing to pay all fees associated with obtaining a certified copy of the most up-to-date version of the County Charter under seal and signature of the County Clerk on a sworn affidavit. I requested this irrefutably authenticated document because I had been told by Kaua`i Rising that the first set of signatures submitted were rejected because the law requires that the names of the Committee appear on every single signature page. I looked at Section 24.01(B) of the version of the Charter on the internet, which I understand is the same version distributed at the County Clerk's Office for a nine dollar ($9) fee. COUNCIL MEETING 9 JULY 23, 2014 The online version contains no such language in Section 24.01(B). Mr. Morimoto's only reply to my specific request was "You get the same thing everyone else gets for nine dollars ($9)." He neither confirmed nor denied that the copy distributed is the most current version of the law. I then stated I will need to rely on the Hawai`i's Open Records Act. He said, "I could do that if I want to." From my prior experience with the Freedom of Information Act, I know that although the law requires a response in ten (10) days, I am open to getting the runaround for months and maybe forced to file a lawsuit to seek mandamus. The election deadline does not permit delay. From years of experience as a Paralegal, I am of the opinion that a public official only refuses to provide a certified copy of a public document under seal and signature of office is when someone is not telling the truth. I believe it is important that the citizens of Kaua`i bring this behavior to the Council's attention. In closing, I assert that the government officials of Kauai County need to remember that it is we, the people, who are the sovereigns and you are our servants. We will not tolerate servants who refuse to prove that the accurate letter of the law is being provided to the public. No such language was found in the online copy of the Charter. Either that language does not exist and we were not told the truth in violation of the County Clerk's Oath of Office or that language does exist in the most up-to-date version of the Charter that is not being provided to the public. Mr. Watanabe: Three (3) minutes. Ms. Kulik: Either way... Chair Furfaro: Excuse me, that was your... Ms. Kulik: ...we must have the truth... Chair Furfaro: Excuse me, that was your three (3)... Ms. Kulik: ...which we now have good reason to believe. Chair Furfaro: Excuse me, that was your three (3) minutes. I will let you a few seconds to summarize. Ms. Kulik: Okay. Well, my last words were here. This is in violation of our civil rights and I wish to add that Section 8.2 of the Constitution of Hawaii clearly says that a Charter Amendment does not require approval of a legislative body. Chair Furfaro: Thank you. I want to let you know that I would like, and it has been my practice as the Chairman for five (5) years, please do not find yourself needing to distract the sequence of what we are doing by cheering or clapping and so forth. We may have had members who wanted to apply a question and I was not able to ask that yet before the testifier left. Are there any questions for the testifier? None. Mr. Hooser, did you have a question? Mr. Hooser: Just a brief point of personal privilege. Chair Furfaro: Sure. Mr. Hooser: I know the Chair has already pointed out that some of us have to travel and I am one of those too. The reason I am traveling COUNCIL MEETING 10 JULY 23, 2014 is to go to the court hearing for Syngenta versus the County. My flight is at 11:45 a.m. and I want to hear, we all want to hear what everybody has to say, but if we can be as expedited as possible. It would help us get to a thoughtful decision hopefully. I just want to let you know the scheduling provision. Thank you. Thank you, Chair. Chair Furfaro: Thank you, Mr. Hooser. Mr. Rapozo: Mr. Chair. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: I feel compelled to, and I will leave it up to your discretion, but I heard the testimony, which basically said our Legal Analyst was a liar. So, I would offer the Clerk an opportunity to explain. I think that was, and I understand what the testifier...yes, I know, but the Legal Analyst, because I think that was a strong allegation that if in fact...I guess, the only question I have is was that the most current version of the law that was provided to the prior speaker? I think you need to go on the microphone. PETER MORIMOTO, Legal Analyst: She was not provided with... Mr. Rapozo: You need to state your name. Mr. Morimoto: Peter Morimoto, Council Services. She was not provided with any documents. She was told that she would be given what everyone else was given when they request the Charter. She wanted a certified copy, which we generally do not do unless the court requires it when we respond to discovery requests and so on and so forth. Mr. Rapozo: But I guess the question is, what everyone is provided, is that the most current version and the only version that we use? Mr. Morimoto: Correct. Mr. Rapozo: Thank you, Mr. Chair. I appreciate it. Chair Furfaro: Peter, although Mr. Rapozo called you up, I also want to get some clarification. I am glad he surfaced that because I was. It is also not, and my understanding in the interpretation, it is not totally clear of that the role of the Council is in receiving the Charter framework. It neither denies nor implies our authority. Mr. Morimoto: Chair, I would leave that to the County Attorney's Office. Chair Furfaro: Okay, but I would say that is my interpretation. It does not imply nor is it clear. Thank you very much, and I will leave that for the County Attorney. Did you have a question for Mr. Morimoto? Mr. Bynum: Yes, just real briefly, just technical. Chair Furfaro: Briefly as we move for time. COUNCIL MEETING 11 JULY 23, 2014 Mr. Bynum: Peter, I rely on the online version which is labeled "Codified 2012 Amendments." So, I read that as saying this is current to that date. Mr. Morimoto: Correct. Mr. Bynum: So, I just wanted to point that out. I rely in this because it says "2012 Codified Version." If there has been amendments subsequent, they are not included in here. That is what that says to me. Mr. Morimoto: Correct. I would also like to state that with regard to what she claims Kaua`i Rising told her, is inaccurate because what Kauai Rising was told was set forth in the letter provided to Kaua`i Rising by County Clerk, Ricky Watanabe. I believe that letter is public record. So, if anyone wants to read it, they will see what Kaua`i Rising was told specifically, in writing. Mr. Bynum: Thank you. Chair Furfaro: Thank you, Peter. For the members, I just want to remind you we have a full agenda of business today. We actually have Money Bills coming up in front of us later today and we still need at least five (5) members for the purpose of allocating money for other bills. Next testifier, please. Mr. Watanabe: Joan Porter, followed by Lora Lynne. JOAN PORTER: Good morning. My name is Joan Porter. I have been working with Kauai Rising for a couple of years now. I was prepared to read a cover letter that was sent to each of you, Councilmembers and Chair, on July 21st with the reasons why the Charter Amendment is a Charter Amendment and why it is needed, but I have to say that I also, for the last couple of weeks, maybe a month, I have really examined what we are doing and what my role is. When I look at history, we have been doing this deliberation, what we talk about here and how we have to have a conversation, which is great. I mean, it is the democratic way, but we have been doing it for hundreds if not thousands of years and we are nowhere in better shape than we were during the Revolution from England settling the United States. I just look at that and go, whoa, this is not working. Our system is not working. We do not believe each other. We think we are lying. There is no trust and so I just want to say that at this point, my position in being on this island and loving it, is to really look that we have to start thinking way outside the box. We cannot continue doing this kind of system and thinking we are going to get something. If the Genetically Modified Organisms (GMO) companies, if the chemical seed companies get voted out, guess what? They will go someplace else on the planet and we are too small of a world for them just to go someplace else on the planet because poison is poison and this world is getting smaller and smaller. The people who live in Africa are the same as us. We are all one (1). So, I have to bring that forth and watch myself in my judgments and in my representation of what I am doing and to move into a heart space, and watch when I am wanting to fight with somebody or make them wrong because that is not going to change things. So, I apologize for my emotionality and I am also happy that I am an emotional being. So, thank you all very much for all of your hard work and all of your best efforts. Mr. Watanabe: Three (3) minutes. COUNCIL MEETING 12 JULY 23, 2014 Ms. Porter: Aloha. Chair Furfaro: Thank you. Questions for Joan? Ms. Yukimura: Thank you very much for your honest and heartfelt description of what you are going through. This is difficult, I think, for all of us and I appreciate it. Anyway, the question is if the initiative process required fewer signatures than the Charter Amendment, would you have them proposed it as an initiative? Ms. Porter: No. The reason we went with a Charter Amendment was because we did not want go down the road of having to go and have the Mayor to be able to...is it repeal? Two (2) weeks ago you indicated that he cannot veto it, but he can... Ms. Yukimura: Well, he would not be able to veto it or propose something to amend it. Ms. Porter: Anyway, we did not want to go down that and we also did not want to put it forth to the Council. Ms. Yukimura: I see. Ms. Porter: We wanted to go directly to the people. Ms. Yukimura: I see. Ms. Porter: That is the reason. It has nothing to do with the amount of signatures primarily, but then, secondarily, it is like oh, look we only need two thousand thirty-seven (2,037). Ms. Yukimura: I see. Thank you very much. Ms. Porter: You are welcome. Chair Furfaro: Mr. Bynum. Mr. Bynum: Joan, thank you for going off script and talking about trust. I think that human beings have a really difficult time when they are approached with an assumption of distrust. You, I think, agree with that. I just want to say that all of these process questions that have been asked during this process about the staff that sits behind us and over at Elections, I paid very close attention to. I just want to say that I have absolute faith in their integrity and their attempt to do the best job they can. At times, people in government are approached by people outside of government with the assumption that there is some nefarious motive. At the civil service level, our County employees serve the public and the vast majority of them are true to that ethic and that moral. So, I just wanted to say that. I think it is important you bring up that issue because the kind of allegations and complex matters happen from these emotions. Do you agree? Ms. Porter: Yes. Mr. Bynum: Thank you very much. COUNCIL MEETING 13 JULY 23, 2014 Ms. Porter: You are welcome. Chair Furfaro: Thank you. Next speaker, please. Mr. Watanabe: Lora Lynne, followed by Sandra Herndon. LORA LYNNE: My name is Lora Lynne. A number of weeks ago, all of you made the correct decision where you voted, all of you, that it was not in your jurisdiction to do anything other than receive this. The same is true for the County Clerk. He is to receive it. So, we are here again to say, "Go back. Look where you were." The opinion of the County Attorney was given. It was an opinion. It was a political document. So, I brought a visual aid this morning. So, for me, this is a small island in a very big situation. An island does not have the resources on many, many levels to deal with what is going on around the daily poisoning. These companies are not paying service to anyone. There is no regulation in place. (Mr. Kagawa was noted as not present.) Ms. Lynne: I was led by my own intuition to drive down a road less traveled on this island and now there are miles of cornfields there. When I inquired into if anyone that I was talking to, including a doctor in a hospital, knew that just a few short miles from here more corn fields are appearing. People did not know. What we are doing at Kaua`i Rising is shining the light on what is going on, on many, many levels. This is a Civil Rights movement and we are standing up for what we love in the best way that we know how. We do not have as much time as Iowa or some other State where they would be doing four (4) times a year, these crops, and using as much heavy pesticide use as they are using here. This is unusual and unregulated at all levels of government. So, the people are standing up. The ones who signed the petition are standing up for this island. They may not understand totally what is going on because it requires a lot of research and a lot of your idealism falling apart about what it means to live in this supposed democracy. I have been deeply influenced in my life by people who have stood up or in the case of Rosa Parks. As a young girl as I watched her sit on that bus... Mr. Watanabe: Three (3) minutes. Chair Furfaro: Thank you. That was your three (3) minutes. Ms. Lynne: I stand up for this island. Chair Furfaro: Any questions for the testifier? Thank you. Next speaker, please. Mr. Watanabe: Next speaker is Sandra Herndon, followed by Bob Yuhnke. Chair Furfaro: I want to make a housekeeping announcement, that is has been my practice if you want to agree with the testifier, you do not need to stand up. You can just raise your hand in silence. Thank you. You have the floor. COUNCIL MEETING 14 JULY 23, 2014 SANDRA HERNDON: Thank you, and good morning Council and Chair. I would like to address why I believe that this is properly a Charter Amendment. First of all, a Charter Amendment is necessary to create an Office of Environmental Health with the authority, duty, and responsibility to remedy the failures of the current regulatory system, and exposure to multiple toxic pesticides. The Charter Amendment directs the Administrator of Environmental Health to assess the harm associated with routine exposure by the residents near the GMO fields to eight (8) major toxic pesticides and as many as ninety-three (93) pesticides simultaneously. This duty is properly required by the Charter because it must be addressed to protect against the harm, but is not the current practice. United States Environmental Protection Agency (EPA) has acknowledged that exposure to multiple herbicides can have greater than additive effects on human health and other natural organisms. Yet EPA has not based any of its safety determinations on routine daily exposure to multiple pesticides. On Kaua`i, the towns downwind from the fields are being exposed simultaneously to eight (8) to twenty-three (23) pesticides on a routine basis with some that have not been tested for safety. Second, is the assessment of effects on fetal development. The Charter Amendment directs the Administrator of Environmental Health to assess the harm to fetal development caused by toxic pesticides that have been found to disrupt fetal endocrine systems. Twenty (20) years of scientific research demonstrates that some of the most common herbicides like Roundup, Atrazine, and glyphosate are powerful endocrine disrupters, yet, EPA has not updated its safety determination for Atrazine since 1991 and has not proposed to consider the effects of Atrazine on fetal development. The Charter Amendment fills this science gap by requiring the Administrator to include these effects in any assessment of adverse health effects resulting from exposure to these chemicals, filling the budgetary gap. The State Health Department... Mr. Watanabe: Three (3) minutes. Ms. Herndon: Three (3) minutes. Chair Furfaro: That was your three (3) minutes. Please summarize. Ms. Herndon: Okay. This Charter Amendment addressed other issues like filling the budgetary gap, providing the County, and do these investigations with funding which is to be gotten from the people that are creating the issue or the problem. It also assigns enforcement duties to the Administrator of Environmental Health. It also provides for citizen enforcement and the primary objective of this Charter Amendment is to put a "cop on the beat" and to make sure the people are protected from the exposures to these pesticides. Thank you. Chair Furfaro: Thank you. Any questions for the speaker? Thank you. Mr. Watanabe: Next speaker is Bob Yuhnke, followed by Michael Shooltz. BOB YUHNKE: Good morning, Mr. Chairman and Councilmembers. My name is Bob Yuhnke. My role in all of this was to help Kaua`i Rising develop a strategy for the people of this island to protect themselves from exposures to pesticides that are unparalleled anywhere else on the planet. The COUNCIL MEETING 15 JULY 23, 2014 exposures here are extraordinary in polls in terms of the numbers of pesticides being used, these multiple contaminants and the pounds being used. There is also the recent report that came out a month ago that shows that roughly one thousand (1,000) pounds of pesticides are being used here every day and that is ten (10) times greater than the highest uses of pesticides in California in typical agricultural operations. So, the Charter Amendment is designed to address this by creating an Officer of the County with the authority to implement the statutory provisions in the Hawai`i Revised Statutes (HRS) and also the Constitutional rights established in Article XI. What Kaua`i Rising asked me to do for you today, which they submitted to you on Monday night, was a summary of how these provisions fit within the Charter context. Hopefully, you have had a chance to look at that. What the Nakazawa decision makes clear is that fundamental rights are an appropriate subject matter for a Charter. Here, what we are doing is providing for the implementation of the fundamental rights defined in the State Constitution in Article XI. The HRS Section governing County Charters also requires that Charters address the powers and duties of officers and the Council. We have done that with this amendment. We have also made changes to the existing Charter, which the Supreme Court said can only be made in another Charter Amendment. It cannot be done by Ordinance. So, what we are doing here is an appropriate matter for the Charter and that is the only issue I am here to address today. If you have any questions, I am happy to respond to those. Chair Furfaro: Okay. Councilmember Yukimura. Ms. Yukimura: Yes, Mr. Yuhnke. Can you give us the name of any attorney who supports the position that this proposal is a Charter Amendment? Any Hawaii attorney. Mr. Yuhnke: I cannot at the moment. Ms. Yukimura: Okay. Thank you. Do you know of any Charter of Constitutional Amendment that is even half as long as the proposal you have made? Mr. Yuhnke: Well, I do not think length has anything to do with it. It is the content that counts. That is one of the things that the County Attorney's memorandum points to, is that you have to look at the content and determine whether or not the content fits within the framework. Ms. Yukimura: So, you... Mr. Yuhnke: What we are doing here is trying to solve a complex problem and it is going to require a significant change to the way business is done. (Mr. Kagawa was noted as present.) Ms. Yukimura: I agree with you that the creation of a Department is a Charter Amendment, but the regulatory system that you are proposing for the Department is a matter of an Ordinance, and that is why it is not a Charter Amendment. Thank you very much. Chair Furfaro: Mr. Bynum. COUNCIL MEETING 16 JULY 23, 2014 Mr. Bynum: Is the Charter Amendment that established Kauai Island Utility Cooperative (KIUC) germane to this conversation at all? (Mr. Rapozo was noted as not present.) Mr. Yuhnke: Mr. Bynum, I do believe that it is. First of all, it is probably the lengthiest amendment in the Charter. It is multiple pages, and what it does among other things is to establish the criteria to be applied by the KIUC Board in setting rates. So, it is very prescriptive and in many ways, we have followed that example with this Charter Amendment. Mr. Bynum: For the sake of time, Mr. Yuhnke, if I could follow-up. If we apply the same analysis that is in the County opinion that was released to the KIUC Charter Amendment, do you think that it would be found to be an initiative or a Charter Amendment? Mr. Yuhnke: Well, first of all... Mr. Bynum: Under this criteria that is outlined. Mr. Yuhnke: First of all, I would point out that there is nothing in the opinion from the County Attorney that analyses specific language in our Charter Amendment and holds it up against either the State statute or the Nakazawa decision and demonstrates why it does not fit in a Charter. There is no analysis there. Mr. Bynum: Okay, I do not want to... Mr. Yuhnke: But if you applied the basic principle that is being asserted by the County Attorney, I think it would draw into question, whether the KIUC amendment is also appropriate. Mr. Bynum: Thank you for that. Thank you. Chair Furfaro: Any other questions? Mr. Yuhnke, I just want to say, thank you for meeting with me last week, but has there been any change in the fact that this new Department, contrary to my concern, that this Department would be reporting to the Council versus the Mayor? Has there been any change there? Mr. Yuhnke: No, Mr. Chairman. Our feeling was given the fact that the Mayor was hostile to regulating this industry last year by vetoing Ordinance No. 960, that it would be inappropriate to put responsibility for implementing these provisions in his hands. Chair Furfaro: But you did understand where my query as it related to the fact that the Charter is very clear that these administrative Departments, created by Charter Amendment or not, need to report to the Administration, in my interpretation. You did understand my question? Mr. Yuhnke: I understood your question, but the answer to that is that while the Charter requires that if the Council were to create this new Department, the Department would have to be appointed by the Mayor. The Charter can be changed in that respect and that is what we are trying to do here, COUNCIL MEETING 17 JULY 23, 2014 which can only be done by a Charter Amendment. It cannot be done by the Council through an Ordinance. Chair Furfaro: Thank you for your feedback. Any more questions? None. Thank you, Bob. Mr. Yuhnke: Thank you very much. Mr. Watanabe: Michael Shooltz, followed by Jonathan Ho`omanawanui. MICHAEL SHOOLTZ: Aloha. My name is Michael Shooltz. I am here on behalf of Kaua`i Rising and nearly eight thousand (8,000) signatures that have supported our Charter Amendment XXXIII. The reason the people are supporting it is because there is a desire that the companies that are here on this island prove what they are doing is safe. That is really the bottom line that is made. All that is being asked is that people want to know that what is happening here is safe. There is a cancer on this island. It is manifesting in three (3) levels. The first level you heard profusely from almost every aspect of the medical community here on Kauai over this past year testifying to the diseases that they are seeing. It is spreading. The pictures that Lora Lynne showed here were taken yesterday. (Mr. Rapozo was noted as present.) Mr. Shooltz: They are right up to the edge of the Wailua River with hundreds of new acres spreading north. We searched and were told that there had bene no Grading or Grubbing Permits over the last ten (10) years on that property. So, that process is being distorted. Politically, there seems to be the cancer is spreading as well. We are seeing the Charter Commission look at changing the ways that people can do a Charter Amendment. That has never been changed in the history of the current County Charter. We are seeing the Chamber of Commerce being asked to do a Charter Amendment again to subtract the rights of people to do this process. We are seeing the Chief Executive Officer (CEO) of the hospital be appointed by the State a former chemical company lawyer, and now we are seeing this body here, the County Council, doing what they are...you are acknowledged. It has never been done before, challenging this. None of these things have ever bene done before. So, I do not think the question that is at hand here is really relevant. These are quotes I took from you on the June 4th hearing. Councilmember Hooser described that we have done the process legally. The people's voice has been heard and in his words, "It certainly feels like roadblocks are being thrown up." He stated, "I am not comfortable with tampering with the process." Mr. Kagawa responded, "Mark this day on your calendar. I agree with Mr. Hooser. It is not the Council's job to make this political or not." Councilmember Bynum said, "When Wendell," speaking to some of the testimony, Mr. Kabutan. "When Wendell says he is concerned about the process being derailed, I think that is a very reasonable concern. I agree with Mr. Rapozo," who I will quote in a minute. "I think we did the right thing last week when we receive the petition. This standard has never been applied before. Petitions/Charter Amendments by their nature are grassroots and you do not need to get an attorney. That is why the Charter Amendment says that your attorney will give feedback and even the opportunity to change if it is not too substantial." COUNCIL MEETING 18 JULY 23, 2014 Mr. Watanabe: Three (3) minutes. Mr. Shooltz: What I am hearing today...aright. I will close with just one (1) quote from Mr. Rapozo. "I have asked, where does the Council's authority lie, and I think it is pretty clear that we have no authority about what goes on the ballot. I have asked Mona where in the Charter is it given that we even have a say in whether or not it is an initiative or a Charter Amendment. It is not there. We met our obligation last week and our duty is done. We have to honor that process of the Charter and let the chips fall where they fall. That was the whole intent of the Amendment Charter initiative process, to keep the politics out of it so the Councilmembers would not have a say because that could really derail legitimate community movement by having seven (7) members say no, we do not have that authority..." Chair Furfaro: Thank you. Mr. Shooltz: "...that is the community's authority."' That was Mr. Rapozo's comments. So, please receive this amendment as is described in the Charter. Chair Furfaro: Any questions for the testifier. Ms. Yukimura: Hi, Michael. Mr. Shooltz: Hi, JoAnn. Chair Furfaro: JoAnn, you have the floor. Ms. Yukimura: So, has what you are proposing ever been proposed before? Mr. Shooltz: I do not know if it has ever been proposed before. That is a pretty broad question. Ms. Yukimura: Oh, it has not. So, does it make it wrong? Mr. Shooltz: Does it make it wrong? Could you expand on that? Does it make what wrong? Ms. Yukimura: Does the fact that you are proposing something that has never been proposed before? Mr. Shooltz: What we are proposing has followed every step of the process as described in the current existing County Charter. We followed the guidelines to the "T". Ms. Yukimura: Yes, and that is the question before us today, what is the proposed process or what is not the proposed, but what is the process defined in the Charter. That is the question. Mr. Shooltz: That is correct, but I believe you are taking the wrong question. You have been asking questions of an initiative or... COUNCIL MEETING 19 JULY 23, 2014 Ms. Yukimura: That is okay. I think you have answered my question. Mr. Shooltz: The really answer is, the Charter does not give this body or the County Clerk any authority to refuse the people's submission. Ms. Yukimura: How does the Clerk then know how many signatures he has to certify? Mr. Shooltz: He knows because we filed a Charter Amendment. That defines what is required. Ms. Yukimura: The court has said that just naming something as a Charter Amendment does not make it a Charter Amendment. Thank you very much. Mr. Shooltz: You are welcome. Chair Furfaro: You have a question, Mr. Kagawa? Mr. Kagawa: Thank you, Chair. Since he quoted me, I just wanted to clarify that my comments about agreeing with Councilmember Hooser on that day. The first time the Charter Amendment was proposed, was made prior to the County Attorneys answering our question in writing. I understand here, that it is the County Attorney's opinion that the proposed Charter Amendment is actually an initiative, and that is why two (2) weeks ago I strongly opposed sending this Charter Amendment through. Thank you. Chair Furfaro: You have a question for the speaker? Mr. Chock. Mr. Chock: Thank you. Good morning. Aloha. My question is, has Kaua`i Rising ever reached out to any of the seed companies, the biotech industry and had a conversation what it is you are proposing? Mr. Shooltz: Had a conversation about...I am sorry. Mr. Chock: Yes. Mr. Shooltz: I did not hear. Mr. Chock: About the Charter Amendment that you are proposing. Mr. Shooltz: We have not directly spoken other than in this room. Mr. Chock: Do you believe that the amendment that you are proposing will cause litigation? Mr. Shooltz: Based on what I have seen from the seed company industry, they have litigated everything that has happened. So, I would say yes. COUNCIL MEETING 20 JULY 23, 2014 Mr. Chock: How would you propose Kaua`i Rising address the exposures that we are providing the County with, this island with? Is there a plan for that in what it is you are proposing? Mr. Shooltz: The amendment has been as designed as best we can to survive in court, if that is the question. So, that is part of the reason for some of the length, I guess. Prior things that have been passed through the County have left huge things to be, like that Environmental Public Health Impact Study (EPHIS) or the whole process that were not addressed in other amendments that we have tried to do a comprehensive thing. I have submitted for your review... Chair Furfaro: Excuse me, you need to respond to the question. Is the question going into the EPHIS? Mr. Chock: No. I am done actually. So, I understand that you believe what you have written is strong enough to uphold exposure. Thank you. Mr. Rapozo: Just one (1) real quick question, Mr. Chair. Chair Furfaro: Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. Thank you for being here. Have you read the Supreme Court decision or ruling from the `Ghana Tax Amendment? Mr. Shooltz: I personally have not read it, no. Mr. Rapozo: Thank you. That is all I have. Chair Furfaro: Any more questions? Mr. Kagawa. Mr. Kagawa: And I will pay my five dollars ($5). I am sorry, Chair. Chair Furfaro: That was his phone going off, the five dollars ($5), the fee. Thank you for... Mr. Shooltz: I am not sure what the question was, but... Chair Furfaro: Thank you for your comments. Mr. Watanabe: Next speaker is Jonathan Ho`omanawanui, followed by Desiree Hoover. JONATHAN HO`OMANAWANUI: Mr. Chair, Council. Chair Furfaro: Good morning. Mr. Ho`omanawanui: Mahalo, and thank you for this opportunity. My name is Jonathan Ho`omanawanui. I know we have a serious matter and this is a serious matter. I know that these companies are on our island of Kauai. I do not personally how much they are pouring into the environment, but what I do know is that poison is poison. I hope that all of the legalities are all in place. I want to COUNCIL MEETING 21 JULY 23, 2014 make sure that our environment is protected. I wanted to make sure that our County and citizens of this Kaua`i County, health is also protected. I know I have to do more research into finding out more, but I believe that the time is up. I think the decision is going to be soon and short. I ask that you kind of consider this amendment and take a look at it. I do not know if you read it, and try to figure out what we can do as a Council to help better our community and basically from a business perspective, I understand business, but this kind of business on the island of Kaua`i is going to hurt the citizens of Kaua`i in the long run, consequences to this. We can talk about day, scientifically, about cancers and all of this. In short, I have traveled across the United States and for thirty (30) and fifty (50) miles at a time going through Kansas and going toward Fort Leonard Wood, Missouri, I was exposed to chemicals that were so intense that while driving, I had to put my windows up. As a local boy, I enjoy the outdoors and I like the wind blowing in my face, and I enjoy that. So, I just hope Council, that you folks kind of look into this deeply and consider this. Mahalo and thank you. Chair Furfaro: Thank you. Any questions for Jonathan? Thank you, Jonathan. Mr. Watanabe: Next speaker is Desiree Hoover, followed by John Tyler Cragg. DESIREE HOOVER: Hello there. I am Desiree Hoover. I live in Kilauea, very concerned Kauaian resident. I love this island. I am here mainly just to urge you to pass the Charter Amendment XXXIII and the bottom line, in fact, the verbiage that JoAnn and Joan had was very important. It is the intention. The intention of Kaua`i Rising and Kauai Rising is following thousands and thousands of people. We need an organization to speak for them. There are other organizations as well, but it is the intention that this Charter was made on. It was made to be a Charter and for the reasons that JoAnn said, it was written to be a Charter. When they dropped off the petition, they were following the process. As far as they are concerned and we are concerned, we followed everything that a Charter can be. If there are technicalities that have to be addressed, I am sure that they will address it, but the bottom line is to amend this Charter. We have the rights to protect our island and obviously, this amendment is much needed. The chemical agricultures are very powerful. It has even been mentioned that this is going to cause litigation. They are probably one of the biggest threats to our island right now and so this amendment has been written up as sound proof as we can and as possible, but there will always obviously maybe be litigation, but you cannot let that be bullied around. There are Constitutions that give us the right for clean air and so forth and so forth. The bottom line right now, this is a Charter Amendment. Then intention was written as an amendment and there is no reason why it cannot be put on the ballot. That is just exactly what this is about. I, myself, when I was in the Bill No. 2491, the biggest obstacles that I could see was everybody's concern of their jobs and I understand. This is for the people of Waimea and again, jobs come and go. This is prime land. All this amendment does is let them prove that what they do is safe and if for some reason they cannot do it safely, there are other projects to get green investors to come in and keep it a safe agriculture. That is mainly what the people here are trying to do. Keep it agriculture, keep it safe, but what we are here today for is to please pass the amendment that is being presented and put it on the ballot. If there are any technicalities, I know I can tell you right now that we will work with Kauai Rising. We will work with any technicalities. It is a very, very, very needed amendment and we appreciate all of your work. It is hard, but do not let this be political. I have heard it had not been read yet. No, we COUNCIL MEETING 22 JULY 23, 2014 are not going to do it, and there has been comments saying, well, let us State Department handle it. No. It has to be handled from the ground up. Mr. Watanabe: Three (3) minutes. Ms. Hoover: So, again, thank you so much. We need this amendment. We really, really do. Thank you. Chair Furfaro: JoAnn has questions for you. Ms. Yukimura: Hi, Desiree. Ms. Hoover: Hello, JoAnn. Ms. Yukimura: Hi. Thank you for being here, your testimony, and your deep concern. Do you think that just intention alone determines whether something is a Charter Amendment? Ms. Hoover: No, and I am sure that it has been written up as they were told the process for a Charter Amendment. (Mr. Kagawa was noted as not present.) Ms. Yukimura: Well, and do you think that just the desire to make something immune from the Mayor's veto makes it a Charter Amendment? Ms. Hoover: The process, the verbiage that is written in there is for a Charter Amendment for our Constitution. Ms. Yukimura: So, that is your opinion. Ms. Hoover: Correct. Ms. Yukimura: But there are things that will have a court determine whether it is in fact a Charter Amendment or not. Ms. Hoover: And that is why I am saying that I know Kaua`i Rising will, if you want to get all technical, then.... Ms. Yukimura: And the best way may be for the Council to reject it because we believe it is not a Charter Amendment and then go to court and have the court decide, clearly, before you go through all of the trouble of getting it on the ballot. Ms. Hoover: And in the short nutshell, why is it do you think it is not a Charter Amendment? Ms. Yukimura: Oh, I mean, I will speak that...I do not want to take more time. So, I will speak that on the floor when I decide what my decision is. Ms. Hoover: Because I keep hearing a lot of... Ms. Yukimura: I have already said that several times... COUNCIL MEETING 23 JULY 23, 2014 Ms. Hoover: I keep hearing a lot of rebuttal that it is not a Charter Amendment and I still not have heard why. Chair Furfaro: Excuse me, I have to interrupt. Ms. Yukimura: Okay, yes. Chair Furfaro: She made her statement. Ms. Hoover: Sure. Chair Furfaro: After your time, you cannot pose another question to her, but she indicated she would clarify that when she got to talk about it on the table. Ms. Hoover: Okay. Chair Furfaro: I hope you understand. Ms. Hoover: Yes, I do. Chair Furfaro: Thank you. Ms. Hoover: Thank you. Mr. Watanabe: John Tyler Cragg, followed by Carl Imparato. JOHN TYLER CRAGG: Aloha ladies and gentlemen. My name is John Tyler Cragg. I just want to first start off with it is quite a distraction to be arguing whether something is a Charter Amendment or initiative. It is not your duty right here by what has been said in the Charter, to be even debating it whether it is a "cat or a dog." What your role is as a Council, by the Charter, is to simply receive the petitions. We could be writing "Mary Had a Little Lamb" and if ten thousand (10,000) people signed they want that on the petition, it is your job as a County Council jus tot receive that give it to the Clerk, and then the Clerk says that yes there is enough signatures of registered voters of Kaua`i County. Ms. Yukimura, I would say that if you want to have the County Attorney go before a Judge after you have received this and after they have been counted, and let the County Attorney say to the Judge, "Is this x, y, and z," and let the Judge with a summary judgment say whether it is or not. It is not the Council's decision to debate whether it is a "dog or a cat." That is for a Judge, not for the Council. You are being distracted by doing this and that. The simple and easiest thing is to simply receive the petition and let the judicial system take it from there. If you do not give the people a right to have this on the ballot and say, "Oh, gosh, we should reject this first off and then take it to court," we will not be able to put it on the ballot. I would rather have the County Attorney get a summary judgment in the next couple of weeks and then it be said and done there. It is not the County Council's position to make a decision "cat or dog" here. You are being distracted. That is what I am saying. Thank you. (Mr. Kagawa was noted as present.) Ms. Yukimura: Question. COUNCIL MEETING 24 JULY 23, 2014 Mr. Cragg: Yes, Ms. Yukimura. Chair Furfaro: JoAnn. Ms. Yukimura: So, can you point out in the Charter where it says that the Council's job is just to receive? Mr. Cragg: Andy Parx is a blogger that said this. What it says here is that the...I can just paraphrase it. I think you know it, that the Council is to receive. It does not say it is whether to decide what the content of the bill is whatsoever. Ms. Yukimura: Okay. Thank you. It does not have those words, but thank you. Mr. Cragg: And it does not have the words that you are saying it does decide one it one way or another, Ms. Yukimura. Chair Furfaro: Excuse me, you answered her question. Ms. Yukimura: Thank you. Mr. Cragg: Thank you very much, Council Chair. Chair Furfaro: You have a question from Mr. Hooser and then a question from Mr. Rapozo. Mr. Hooser: Actually, Chair, I could respond to Ms. Yukimura or we can hold it to the comments at the end, but the Charter is very specific about the language and nowhere in the Charter does it say that Council has the authority, right, obligation, or anything at all, legal authority, to make the decisions whether it is a "dog or a cat," and I would be happy to point to those provisions in the Charter. Chair Furfaro: I would prefer you hold it towards your comments. Mr. Hooser: Okay. Thank you. Chair Furfaro: Obviously, there is a period there that is silent. Mr. Hooser: Right. Mr. Cragg: Thank you. Chair Furfaro: We have Mr. Rapozo for a question for the speaker. Mr. Cragg: Thank you, sir. Mr. Rapozo: Are you suggesting that we take Mr. Parx's opinions over our County Attorney's opinion? COUNCIL MEETING 25 JULY 23, 2014 Mr. Cragg: No, I am saying that he, as a citizen... Mr. Rapozo: I read what he said. Mr. Cragg: Okay, good. Thank you, sir. Mr. Rapozo: Mr. Parx is very far from being an attorney and I read one (1) testimony and maybe it was yours that said, "Andy Parx said this." I am just saying, you are not suggesting that this body going forward, take Andy Parx's opinions over our County Attorney's are you? Mr. Cragg: What I am saying, Mr. Rapozo, is it is not for you to decide the legalities of something that the... Mr. Rapozo: Right, and I am asking... Mr. Cragg: ...two thousand (2,000) people or three thousand (3,000) people said, "We want it heard on an amendment." There is a very reason why we did not want the County Council to debate this. Mr. Rapozo: Trust me, I agree, but I have not seen a legal opinion from the two thousand (2,000) or three thousand (3,000) people from Kauai Rising that says we do not have that authority, and we got something from Andy Parx, but... Mr. Cragg: Okay, I did not see where so it says in the County Charter that you do have that authority to say you can. It is one (1) opinion. Mr. Rapozo: Right, one (1) opinion from an attorney. Mr. Cragg: This person has been wrong before, it seems. Mr. Rapozo: Believe me, I am probably the one (1) Councilmember that has the least trust for our County Attorney's Office, but there is also Supreme Court cases that justify Ms. Clark's opinion, which I tend to agree with. So, I am just saying, if you can find me a legal opinion, a legal opinion with case law attached to it that says "We do not have the authority," believe me, I would seriously consider that, but I do not have that. I have a lot of testimony to technicality. I mean, I do not think it is our duty to pass something with a technicality issue because that would not be right, that would be expecting a lawsuit. We fix the technicality before moving forward. Mr. Cragg: Mr. Rapozo, I understand. I am just saying it is not your authority at all. It is the court's authority to say whether it is a "cat or a dog"... Mr. Rapozo: And that is based on Mr. Parx's assessment. I am asking for a legal... Chair Furfaro: Excuse me here. There is a question that was posed to you. Do you have a County Attorney or any other attorney opinion that is different than what we have? Just yes or no. COUNCIL MEETING 26 JULY 23, 2014 Mr. Cragg: Correct, no I do not, sir. Chair Furfaro: Thank you. Mr. Cragg: Thank you. Chair Furfaro: Please, in the audience, we have very sensitive microphones. They pick up testimony in the back. We want to hear the speaker. Is there any more questions for the individual that wants to give testimony? JoAnn, you have the floor. Mr. Cragg: Yes. Ms. Yukimura: Do you understand under the Charter, that it is the Clerk's duty to certify that the signatures are appropriate? Mr. Cragg: Yes. Ms. Yukimura: So, how will the Clerk do its job unless he knows that the matter is a Charter Amendment or an initiative? Mr. Cragg: He does not necessarily need to do that. He is a bean counter as to whether these signatures are one hundred one (101) counts or one hundred (100) or whatever. He is not to decide. Ms. Yukimura: So, that is a matter of difference of opinion. Thank you very much. Mr. Cragg: Oh, really. Thank you. Chair Furfaro: Any more questions for the speaker? No. Thank you for your testimony. How many more speakers do we have? Mr. Watanabe: We have five (5) more registered speakers. Chair Furfaro: Five (5) more registered speakers, and I have to share with you, is there anyone that wants to give testimony? I am going to tell you raise your hand now, that have not spoken. Have you signed up? Okay. Anybody who has not signed up? Let us move forward. Mr. Watanabe: Carl Imparato, followed by Elaine Valois. Chair Furfaro: Excuse me, Carl, before you start your time. Mr. Kagawa, you have a question? Mr. Kagawa: Thank you, Chair. No, I think their flight is in an hour. Chair Furfaro: It is half an hour. Mr. Kagawa: If the public really wants all seven (7) members to vote on this decision, I think that some of the testimony is becoming redundant a little bit. Thank you, Chair. COUNCIL MEETING 27 JULY 23, 2014 Chair Furfaro: Thank you. Yes, Mr. Hooser. Mr. Hooser: Just to follow-up on that. I would like to hear what the public has to say and I would like to encourage Councilmembers not to debate or become argumentative with the testifiers. If they need to ask questions for clarity, that is fine, but trying to convince the people that are testifying that our position is somehow right and they are wrong, I think, is inappropriate and we could maybe move the schedule along a little bit. Thank you. Chair Furfaro: Point well-taken. Carl, you have the floor. CARL IMPARATO: Aloha Councilmembers. My name is Carl Imparato and I urge you to simply receive the Charter Amendment petition and to steer clear of making any judgments regarding the substance of legitimacy of the proposed Charter Amendment. To begin with, I have no connection with the Kauai Rising petition or the Kaua`i Rising movement there, and I have no position about whether any or all of the petition is a Charter Amendment or an initiative, but I feel very strongly that the County Council should not take any actions that would undermine one of the most important features of the democratic process, which is the ability of the voters to directly legislate through the initiative, referendum, recall, and Charter Amendment processes. There is at least four (4) significant reasons why I think you should simply receive this petition. The first is that the purpose for the County Charter's provisions for voter sponsored initiatives and Charter Amendments is very clear. It is to enable Kaua`i's voters to bypass and/or overrule the County Council. So, for the County Council to accept an argument that the Council has authority or even a duty to prevent a voter sponsored measure from getting onto the ballot when making any rulings would be contradictory to the fundamental intent of the Charter. The sharp inconsistencies with the Charter's intent should be what drives your decision making. Secondly, you should receive this petition because neither the County Council nor the County Attorney have the qualifications to determine whether or not any or all of this Charter Amendment or whatever it may be is appropriately an initiative or a Charter Amendment. Some people have made the analogy that you have to determine whether it is a "cat or a dog," but I think a better analogy is people saying "is this black or is it white." The answer is, it is gray. There are parts of this that are probably a Charter Amendment. There are parts that are probably an initiative, in my opinion. There is also a clause that basically severs parts. So, really, the only entity that has the qualifications to make these kinds of decisions is if there it does discovery, arguments, and counter-arguments, is a court. The third reason to receive this petition is precedent. The Council should not establish the precedent that it has any authority to judge anything about the concrete contents of any voter sponsored measure. The argument that you have the duty to prevent the wrong type of measure from getting onto the ballot today is no different from the argument to the future County Council that says that maybe something should not be allowed on the ballot because it is undesirable, illegal, or unconstitutional. That is for a court of law to decide. Finally, the last reason to receive this petition is basically due to institutional bias. It is not credible to believe that the County Council, the County Administration, and the County Attorney are disinterested on this or any other voting initiated measure. By definition, these voter initiated measures come from outside. They threaten the system, they threaten the power structure, and by COUNCIL MEETING 28 JULY 23, 2014 definition, the people who are in charge of the power structure are not going to be unbiased. Mr. Watanabe: Three (3) minutes. Chair Furfaro: Carl, that was your three (3) minutes. Summarize. Mr. Imparato: Alright, so I will summarize then. I hope that you will keep the County Attorney's arguments about the minor ambiguities, inconsistencies, and silences in the Charter in context. The substantive intent of the Charter is really clear, give the voters a way to put something onto the ballot without interference from the Council, the County Attorney, or the Mayor, and that is what should be driving your decision making. Respect the importance of the Charter Amendment process when it comes from the voters, the initiative process from the voters, the recall process, and the referendum process. Thank you very much. (Mr. Chock was noted as not present.) Chair Furfaro: Councilmember Yukimura, question. Ms. Yukimura: So, Carl, is it your understanding that if any part of this proposal is an initiative that it has to meet the requirements of an initiative? Mr. Imparato: No. My understanding would be that to the extent that this is neither nor black nor white, neither cat nor dog, that part is maybe an initiative, that would be something for a court to decide because a court would look at the severability clause and then determine whether the whole thing needs to be thrown out or a part of it needs to be basically, excised. Ms. Yukimura: Is it you opinion that the Clerk, in order to do his job, has to determine whether the measure is a Charter Amendment or not? Mr. Imparato: No, I do not believe so. I believe that the Clerk could or the Council could ask the court for a declaratory judgment on the issue and then at least you will have a neutral party, a Judge basically, with all of the knowledge of the law making that decision. So, the Clerk has that as possible action. Ms. Yukimura: And do you not agree that it would be faster to get a decision before it goes on the ballot? It would be better and least costly to all parties to get the issue on the ballot...I mean, in the court and a determination from the court? (Mr. Chock was noted as present.) Mr. Imparato: I do not think it is unreasonable for the Clerk of the Council for that matter, to request a declaratory order, and then a Judge can determine whether the most efficient process is to basically deal with it prior to it going onto the ballot or afterwards. Again, I think that is a legal question for an unbiased, and I am not trying to disrespect the County Attorney, but the COUNCIL MEETING 29 JULY 23, 2014 County Attorney is part of this power structure. I think an unbiased entity like a Judge needs to make that decision as to what is the best way. Ms. Yukimura: Thank you. Mr. Imparato: Thank you. Chair Furfaro: Any other questions for Carl? Mr. Watanabe: Next speaker is, I believe the first name is Elaine or Elois Valios, followed by Margaret Sheen. ELAINE VALOIS: I am going to be very brief because of the time. I just want to show you me new bag. Chair Furfaro: You have to introduce yourself first for the record. Ms. Valios: My name is Elaine Valois and I am very positive that you will all send our signatures over today to be counted. Thank you very much. Chair Furfaro: Thank you. Next speaker. Mr. Watanabe: Next speaker is Margaret Sheen, followed by Siri Shabad. Margaret Sheen declined to provide testimony. Chair Furfaro: Next speaker. Mr. Watanabe: Next speaker is Siri Shabad, followed by Lonnie Sykos. Siri Shabad declined to provide testimony. Mr. Watanabe: Last registered speaker is Lonnie Sykos. LONNIE SYKOS: Thank you, Council. For the record, my name is Lonnie Sykos. First off, I am a member of the general public and these people do not speak for me. I did not sign their petition and when they claim they represent the public, they lie. They represent a vocal minority. They represent the people who signed the petitions. The question before the County is due process. I have been here roughly six (6) years attending Council Meetings on a regular basis and following the County's Commissions and whatnot on the video and I go in person to Commission Meetings. I seldom have seen any of these people here for anything other than a single issue. My problem I have listening to this is at one thousand dollars ($1,000) an hour, these people are claiming that their issue is so important that due process should be violated to assist them, but this whole issue is about due process and their lack of attention to due process is part of the problem that we are dealing with today. They are arguing that if a vocal minority of the public introduced the Charter Amendment, for example, demanding that persons of a specific class or color ride in the back of the bus, that enough people sign that petition, that you have to accept that the County has to accept, and put on the ballot COUNCIL MEETING 30 JULY 23, 2014 an initiative, an Ordinance, a change to the Charter, or whatever, something that is blatantly illegal, and that is there argument, that no one in the County should have the authority to review whether or not their proposal is legal. That is wrong. That violates due process. The ignorance of how government operates, that is the common thread through their argument, is stunning to me. Of course, the government has an obligation to protect the citizens, including the operation of the government from lawsuits. So, if someone proposes bills that are guaranteed to create lawsuits, it is not that you are not allowed to pass such a bill. The question is, is the process used to reach that point correct, and I do not think the process in this is correct. These people have other remedies than this Charter Amendment. Mr. Watanabe: Three (3) minutes. Mr. Sykos: The remedy they have is the County... Chair Furfaro: You need to summarize. Mr. Sykos: I will summarize it. The County already has an occupational safety and health function for its own employees. So, we have existing ability to deal with this issue. I would say, leave it up to the County Clerk and then you make your decision based on the Clerk and the County Attorneys. It is up to you to decide whether or not this meets the minimum legal criterion to go onto the ballot. Thank you. Chair Furfaro: Questions for Lonnie? None. Thank you, Lonnie. Last speaker anyone? Oh, we have one (1) speaker. KLAYTON KUBO: Klayton Kubo, Waimea, Kaua`i. I guess the basic question is are we in need of protection. I say, in my opinion, I need protection. My son needs protection. We live downwind of a facility that sprays six (6) times more than the National average, ninety-three (93) different chemicals. Thirty-two (32) active ingredients. I am not an agricultural person, but poison is poison and it is coming into my home. I see it on my windows. So, I say, in my opinion, my son and I needs protection. I do not know about everybody else, but I am going to only look from my view.. Maybe my view is not the right view and I guess, I am not trying to hurt anyone. I am not trying to disrespect anyone. No. I am just trying to get some protection. That is the common sense thing. Health and wellbeing should be the first thing on the list, not jobs or money because if there is no health and wellbeing, that means you cannot even go to work. That means you cannot even go make money. So, yes, I know I have to tone things down and there are a lot of discreditors out there, but I am going to keep saying what I normally say, and that is the truth. Like I said again, I am not here to disrespect anyone. I am not here to dis anybody on Facebook or social media. I am just here saying that is real. Six (6) times more than the National average is being sprayed upwind of my home and that is not counting the other four (4) facilities. We have four (4) companies. So, if you count the other four (4) facilities, how many times more than the National average would this whole island be taking in? Oh, I am raising my voice again. Sorry about that. By the way, do the right thing. Have a great day, and to everyone in this room. Any questions? Chair Furfaro: Go ahead, we have from Mr. Kagawa. Mr. Kagawa: Klayton, thank you for you testimony. That is why tomorrow, I head to Oahu again and... COUNCIL MEETING 31 JULY 23, 2014 Mr. Kubo: Oh, I am going to call them up. Mr. Kagawa: ...meet with... Mr. Kubo: Scott Enright. Mr. Kagawa: No, I am meeting with Dr. Gill as well and... Mr. Kubo: Oh, that person too. Mr. Kagawa: One of the questions I have is can we do some testing in some of the homes across the river. Would you agree that the State is more capable of doing something like that? Right now, we hired an ex-police officer who I do not think has any professional knowledge in pest control or what have you. Who would you think has more expertise? The State or this retired police officer. Mr. Kubo: I do not know who hired who you are saying, but maybe you have to ask them why they hired that person. That, I do not know. As for the State, Ross, dealing with them it seems like it is a nowhere road for me. Mr. Kagawa: But for you it is that way, but for me, that is my route. I think they can help more because I think there are two (2) different ways that you are saying you are getting poison. It is either direct mist or coming... Mr. Kubo: Through the dust. Mr. Kagawa: Yes, flying in the dust. So, that is where my focus is going to try and be and to try and see how the State can help us, the Department of Health, get some of those results because I think once we get the results, then you have the proof. Mr. Kubo: Well, we need it from all angles and I have been trying for fourteen (14) years now trying to get an agency do something, but the referral was our hands are tied behind our back because of one. Mr. Kagawa: I think I am going to and untie them. Klayton, I think you answered the question. I did not want to sound disrespectful. I wanted to kind of tell you where I am coming from. Mr. Kubo: Right on, Ross. Do that best you can. Mr. Kagawa: My thirty (30) class reunion this weekend. Mr. Kubo: Yes, you never show up. Mr. Kagawa: Thank you. Chair Furfaro: Okay, gentlemen. I need to... Mr. Kubo: Mahalo. Chair Furfaro: Thank you, Klay. COUNCIL MEETING 32 JULY 23, 2014 There being no further 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: There is a motion... Ms. Yukimura: Mr....you need to recognize somebody. Mr. Chair. Chair Furfaro: Yes. Ms. Yukimura moved to reject and request that the County Attorney go to court to ask for a declaratory judgment, seconded by Mr. Kagawa. Chair Furfaro: I have to tell you gentlemen, I had to recognize JoAnn with her hand up, accordingly. Mr. Hooser: Chair. Mr. Rapozo: Process. Go ahead. Mr. Hooser: I believe I made a motion and it was seconded. Is that not the motion that is on the table right now? Chair Furfaro: The motion that you made, but what I am saying is I am not sure I recognized you. JoAnn had her hand up. Mr. Hooser: Right, I understand that, but I believe if the record would reflect that I made a motion to receive and it was seconded before Ms. Yukimura made any comments at all. Ms. Yukimura: Point of order. I believe you have to be recognized before you make a motion. Chair Furfaro: That is correct. Mr. Hooser: I guess we need a brief recess to figure this out, Chair. I do not know even know what a motion to reject is, actually. Chair Furfaro: Actually, as the leader of the Council, I think that is a good idea for me to take a recess to understand that Rule. So, I will be consulting with the Clerk. Do not go far. There being no objections, the Council recessed at 10:19 a.m. The meeting was called back to order at 10:23 a.m., and proceeded as follows: Chair Furfaro: I failed to recognize a question coming from a member. Could you please come up again? This will be posed one (1) question. There being no objections, the rules were suspended. COUNCIL MEETING 33 JULY 23, 2014 Chair Furfaro: Mr. Bynum, you have a question for Klay? Mr. Bynum: Klayton, some of the testifiers separated out whether they support the amendment or whether they support putting it on the ballot, and those are two (2) separate things, yes? Do you understand that as two (2) separate things? Mr. Kubo: Okay. Mr. Bynum: So, I just want to be clear about your position. Are you supporting it being on the ballot and separately, are you supporting the amendment, or both? Mr. Kubo: I support anything as of this point. Mr. Bynum: Okay. Mr. Kubo: I have been going through this for how many years. Mr. Bynum: Okay. Mr. Kubo: For me, it is like anything. Oh, sorry. I am raising my voice again. Mr. Bynum: Thank you very much. Chair Furfaro: Thank you, Klay. Mr. Kubo: That is it? Mr. Bynum: That is it. Mr. Kubo: Thank you folks for your time. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: On the break with the Clerk, I want you to know that in reviewing the Rules the fact of the matter is, even if a Councilmember is recognized, the statement as made has to be recognized by the Chair. In such of a review, I am going to ask Councilmember Yukimura if she would remove her motion accordingly, and I will go back to Mr. Hooser. Thank you. Ms. Yukimura: Thank you, Mr. Chair. To make all of this process cleaner, I will withdraw my motion. Ms. Yukimura withdrew the motion to reject and request that the County Attorney go to court to ask for a declaratory judgment. Mr. Kagawa withdrew the second. Chair Furfaro: Thank you. I appreciate it. I have a second withdrawn from Mr. Kagawa. I would like you to restate the motion first, Mr. Hooser and then I will go to Mr. Bynum for the second. COUNCIL MEETING 34 JULY 23, 2014 Mr. Hooser moved to receive C 2014-199 for the record, seconded by Mr. Bynum. Chair Furfaro: Okay, there has been a motion to receive and a second. That is what Robert's Rules said I needed to do, accordingly. Now, we are back in session and will recognize each member for commentary. Mr. Bynum, you wish to go first? Mr. Bynum: I am willing to. Chair Furfaro: Okay, go right ahead. Mr. Bynum: I will try to be very brief. This is a basic separation of powers issue. We have the Mayor who can veto, we can override. We all understand that. The Charter set up a separate process for the citizens to bypass people like us and to take the question directly to the voters. That is what is happening here. I think it would be an incredibly terrible precedent if the Clerk of the Council intervened in this process. A simple read of the Charter is what I have been asking for. The Charter does envision a role for the County Attorney's Office to give feedback to petitioner's and allow them to even make changes. The County Attorney has chosen not to do that, not use the one provision we do have in the Charter that seems clear to me, that would even further put the ball in the petitioner's court. If the County Attorney says, "Look, this is not good. It is not a Charter. It is going to get thrown out. It is irreparable," then the public knows that and they can make that part of their decision making on the decision, but this is a separation of powers. I am concerned about process issues, the County Attorney responding to some member's questions, but not others. The selective release of County Attorney opinions that has happened this year, the very type of opinions we normally would hold back because of possible litigation, but yet, we are not really seeing the simple ones that I have advocated for all of these years. There are process issues here. I am clearly going to vote to receive. We have already delayed this a week, the Council did. I am sad about that and I believe that whatever the Council votes today, this was orchestrated. Lots of things are being orchestrated and when you answer some questions and not others, release some opinions and not others, it is to tell a story. Carl Imparato's written testimony is so right on the money on every single salient point. Thank you, Carl for being one of the many people in our community to provide this. I am voting to receive. Chair Furfaro: Any other members wishes to speak at this time? Mr. Chock. Mr. Chock: Thank you. A couple weeks back we had no opinion and so we moved to receive and it ended. We got our County Attorney opinion. We take that seriously. There is a responsibility here. That is all we had to work with. Over this last week I have talked to each of the Charter Commission members and while there is a split, most people agree on two (2) things. One, we should let this, the people, decide. This is their process. Two, this thing is a hybrid. So, there is something that needs to be done about that. So, it brings up a conflicting situation for us. I blame everyone in this process because the Charter is flawed. It is not clear and it needs to be worked on and I am already starting to work on that. That is one thing. That other thing is if you want to work with the County and play the game in the County, then work with it. We have to play the COUNCIL MEETING 35 JULY 23, 2014 game together. I hear the mistrust in the room and that has to end. We are the only people that are willing to play here. That is what you have to work with. So, we have to work towards that and that is not what is happen. I am upset with that process, that there has not bene that willingness. I am really afraid that this sets a precedence for the future and that the people will not have an opportunity or a way to voice what is important for them. I am willing to move as I have moved, grown, and learned over the last few weeks about what is really going on, to step aside. My other option is that the declaratory judgment comes first so that we can all move towards something that is a little bit more feasible and not going to kill us financially. We do have responsibilities, all of us, here and you, to make sure we are coming out with the best product possible. So, there are options here and I think we should talk about them more. So, we have a motion to receive. Like I said, I am willing to step aside for it. I have changed and if that does not move forward, declaratory judgment is what I would move for. Thank you. Chair Furfaro: Mr. Hooser, then Mr. Rapozo. Mr. Hooser: Thank you, Chair. I want to thank everyone for being here today and taking the time in putting all of the work into this. It is obviously a very important, very passionate issue. I think, as been stated in testimony here, the best option is that we receive this today, the Clerk begins counting the votes, and then if the Clerk...here we go again. Chair Furfaro: Signatures. Mr. Hooser: The signatures, and then if the Clerk or the County Attorney or someone then go to the court during that time to seek some clarity on the issue. I do not believe that we, as a Council, has the legal authority to do this. Again, I think it sets a very dangerous precedent. It has never been done before. We have never interjected ourselves. The Council has never interjected itself to make this kind of determination. If begs the question of how it works in the future. Would it just be depending on the Council, depending on the County Attorney we may or may not interject ourselves as a body? It begs the questions what about the Charter Review Commission. What if they make a suggestion on a Charter Amendment, does the Council then weigh in on that to say, "Well, no, we do not really like that?" We may or may not. It is very clear what it says legally. If you do the research, which I have done, and you look at what the discussion that happened in 1964 and 1965. The people that actually put the Charter together, they had real discussions about how much power and how much authority they wanted to give the Council in this process. There were some proposing no, the Council should decide. No, we should have public hearings. At the end of the day, they did not. At the end of the day, this was not included in the Charter that is before us today. So, they had those discussions back when this was first written and they made a conscious decision. Mr. Tokita, "The Council shall then hold a public hearing and shall consider the question as to whether the amendments proposed shall be submitted." So, back then, someone said, "This is what it is going to be." The Council is going to hold a hearing and the County is going to consider the question of whether or not we should allow to vote on it. Dr. Haas. "Yes, that is what bothers me. In other words, they can turn down the petition and not put it up to the voters. I do not know whether that is right." Mr. Shimamura, "I think it is alright..." wait. "What Dr. Haas is concerned is that right now, the Council must approve first what the people petition for a change." Dr. Haas says, "Yes." Then they say, "Why not just say that if they have the COUNCIL MEETING 36 JULY 23, 2014 signatures, it automatically goes to the public?" Okay, this is the discussion they had in the 1960s and the end result is the Charter that we have before us which does not include any of those rights or actions that they had considered back then. We talk about court cases. Awakuni vs. Awana. It says the court explains statutory construction. The fundamental starting point is the language of the statute itself. Where the statute is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning. Plain and obvious. This is the County Attorney themselves stating it in another opinion. The Charter's explicit language guides its interpretation. Where different language is used and different parts of a statute is presumed language use with a different intent. The County Attorney itself in other circumstances has said that plain language prevails. The Charter Amendment, the Charter itself, says amendments to the Charter may be initiated only in the following manner: by petition presented to the Council. That is all is says. By petition presented to the Council signed by not less than five percent (5%), et cetera. Nowhere does it say the Council has a legal authority, the Council should look at it, the Council should debate it, or the Council should consider rejecting it. This is what the Charter says. Plain language. Upon filing such petition with the Council, the County Clerk shall examine to see whether it contains sufficient number of valid signatures. That is all it says. This is plain language. If they intended for it to say more, they would have put more. It is very clear. It is very, very clear to me. The intent of the people who drafted the Charter. Its intent to plain language is there. We do not have the legal authority. The petitioners present it to the Council and that is it. So, I encourage strongly the Councilmembers here today to honor the public process. As was said earlier today, the ability to amend the Charter by the people is there to bypass us. That is why it is there, to bypass us, to bypass the Mayor, to bypass everyone, and to go directly to the voters. That is why this provision is in the County Charter. Mr. Watanabe: Five (5) minutes, Mr. Chair. Mr. Hooser: For us to circumvent that and jump in and say our opinions somehow supersede the court's opinion or supersedes the Charter process, is, as I said before, inappropriate at best, and possibly illegal. I just encourage you to think about this and allow this process to go forward, allow the signatures to begin being counted, and then we can ask a court to rule in the meantime. So, yes. Thank you, Chair. Chair Furfaro: I stretched your five (5) minutes, but we will go to Mr. Rapozo. Reminder members, you have five (5) minutes for your discussion. Mr. Rapozo: Thank you, Mr. Chair. Let me just start off by saying that the end does not justify the means. I think we all are looking for the same thing. I think we are all looking for the health and safety of our citizens. We, as a body, we are governed by a set of rules, we are governed by a set of laws, and I take that very seriously. Like Mr. Chock and Mr. Kagawa said earlier, a couple of weeks ago, obviously we are not privy to any County Attorney's opinions and you read the straight language off the Charter and I was quoted earlier today that said we do not have that jurisdiction. The County Attorney has advised us separately since then and it is clear that we do. Now, it is not just the County Attorney's opinion. I referenced Andy Parx earlier. I do not get my research and due diligence from the internet, from Facebook, or from Andy Parx, for sure. I referenced the opinion and that is why I asked one of the testifiers if they had read the `Ghana COUNCIL MEETING 37 JULY 23, 2014 Amendment Supreme Court decision, which is very clear. That is the thing. We are bound by certain requirements that we need to follow the law and much has been said about oh, we should pass it and then take it to court. Well, it has already been to court. Mr. Hooser referenced the discussion in the 1960s. It is fifty (50) years ago. Since then we have had two (2) amendments in this County that got rejected by the Supreme Court because the County failed to take action, because the County, even though we felt it was illegal, said "No," and we went to court. We lost a lot of money only to be victorious in the end. I am proud of our County this time saying, "Wait a minute. We are not meeting the requirements. This is not a Charter Amendment. It is an initiative." Let me just read some of the things in the Supreme Court decision. They talk about the case, and it is the Fasi case, which is a Hawaii case. The Supreme Court says, "Consequently, the determination whether the Charter Amendment is the disguised initiative Ordinance must be made by the examination of the substance and not the form." We have to look at what is in it. We cannot just rubber stamp. The Supreme Court has already ruled that. Why would go back? We know what they ruled. This is case law. This is not County Attorney's opinion. This is not Mel Rapozo's opinion. This is case law that has already said, you folks make the determination whether the substance is accurate, not just the form, not just because you put a title, not because you got the required signatures. We have to assess, analyze, and make a determination of the substance, and that is what I have done. I believe, and I agree with Ms. Clark that someone has to do it and it is silent in the Charter, but we have an ability today to take action on this matter and I believe it is within our purview to do it. We have to recognize the substance, not just the form. Can you imagine if today this room was filled up because the Chamber of Commerce put in a petition to set up a Division of Boating, that they wanted to establish a boating industry on the North Shore, they had the signatures required, but they wanted to regulate boating, set the fees, and set the penalties for violations? Imagine that. We would just say, "No," rubber stamp, go to the ballot, and the Chamber of Commerce came out with a huge campaign and it passed. Then we would have to go sue because that is an initiative. We make that determination. We have to make that determination. That is why there are seven (7) of us. That is why the input is very important. The Charter, this is from Cheeks vs. Cedlair Corp. It is another case law, a case that has already occurred that has already been...it says, "the Charter is in fact a local Constitution. It provides broad organizational framework establishing the form and structure of government in pursuance of which the political subdivision is to be governed and local laws enacted." It basically says, the Charter sets up the agencies and then the legislative bodies will determine the legislative regulations and all of that, not the Charter. I mean, I empathize with everyone because I think everything you see is correct, but we have a process that we have to follow. If I have knowledge or if I believe that this process is wrong again, the end does not justify the needs. We need to find another way to get it done. That is my position. It is clear. We already went to court, twice, and we lost. I do not want to have to...this is not a testing phase. We are just going to use the taxpayer's money to go test the legality of anything. Substance over form. That is very...I mean, it is said quite a bit in here. You are welcome to have a copy of this Supreme Court ruling. Mr. Bynum talks about the separate processing the Charter. It is there. He is correct. I agree with him that in fact, that process is there, but it also comes with a requirement. It also come with some regulation or laws or processes that must be followed. It is not as simple as getting signatures and throwing it on the ballot. We, as this body, should be looking out for the taxpayers and preventing us from COUNCIL MEETING 38 JULY 23, 2014 ending up in court again. I mean, I cannot support pushing any measure whether it is a Bill, Ordinance, or whatever knowing that we are going to court. I think Councilmember Yukimura talked about a possible motion to reject and getting a declaratory ruling. I think that is very practical and reasonable. Mr. Watanabe: Five (5) minutes, Mr. Chair. Chair Furfaro: That is your five (5) minutes, Mr. Rapozo. Mr. Rapozo: Okay. Chair Furfaro: You can summarize. Mr. Rapozo: I am just saying we have history to rely on now. We have been down this road twice since I have been here and I think we need to learn from those experiences. Thank you. Chair Furfaro: Any other members? Mr. Kagawa. Mr. Kagawa: Thank you, Chair. I am going to try and keep it brief. I think it is our job as Councilmembers to listen to the County Attorney's Office. They try to advise us how to keep us out of potential lawsuits, primarily those that we will likely lose in court and cost our taxpayers a lot of money. I feel like the Kaua`i Rising group worked really hard, put in a lot of effort, and I understand their frustration that it may not go through. Like I said two (2) weeks ago, I think, this will come up again at some point. It will come up maybe before a brand new group of Councilmembers and it is not dead. So, there is still life after whatever happens if it is not going to the County Clerk's Office. I think we just need to remind ourselves that it is just very important that we do our job and not just do the easy thing and pass something on and it not be effective in the end. I think I am going to do my job today and I am going to reject this Charter Amendment because it is an initiative. Thank you. Chair Furfaro: Thank you. JoAnn, you wish to speak? Ms. Yukimura: Yes. Thank you, Chair. First of all, I want to say that the rule of interpretation is plain language is the first threshold, but when the language is not plain, there are a whole lot of other things you have to look at. Councilmember Rapozo's analysis or sharing of the court opinion is one of the things you refer to when plain language is not clear. I want to also say, as I have said over and over again, and I hope you understand, this is not about the merits of proposal. This is about the process of putting something on the ballot. It is about the rules that govern how a Charter Amendment is passed, proposed, processed, and passed. When we were all inaugurated we swore to uphold the Charter and the Charter are the rules that define the process. So, that is what we are looking at right now. I voted to receive the first time and I was a silent vote to receive last time particularly because I feel that it is not the best Council's role to make this decision about whether something is a Charter Amendment or not. I found Carl Imparato's testimony very compelling. However, when I also read the County Attorney's opinion and argued vigorously with her, also looked at the Supreme Court's direction, it is clear that like it or not, at this point with no other language, it is our responsibility to determine whether it is a Charter Amendment so it either goes the route of the Charter Amendment process or it goes the route of the initiative process. So, as much as I believe it is more substantively the Clerk's COUNCIL MEETING 39 JULY 23, 2014 responsibility to determine whether this is a Charter Amendment or an initiative because he has to determine how many signatures are required to get the matter on the ballot. He has to determine the correct nature of the proposal because there are different signature requirements. So, even though I feel it is more his responsibility, if you create a good procedure, that would be his responsibility. I believe now with all of the circumstances, we have to make the decision. It is my judgment, both with a legal background and maybe with what I believe is common sense although common sense varies from person to person, I think it is clear this proposal is not a Charter Amendment. There are pieces of it that are a Charter Amendment, but if there is anything that is an initiative, you cannot allow an initiative to be processed improperly. So, it has to be separated out. Somebody said, "Nothing is going to get hurt if we just let it to go on the ballot." Are you kidding? The amount of money that it is going to take for both sides to argue during this election period, the time and energy and then the court case that has to take care of then everything that is in the written proposal, not just determine whether it is a Charter Amendment or not. It is a much simpler, cleaner, and cheaper way to determine now whether it is a Charter Amendment rather than allow it to go to ballot. So, it will kill us financially and it will kill us as a community to spend all of this time and energy arguing over something that might not be a Charter Amendment and therefore, will not be successfully approved. So, therefore, I am going to vote not to receive and I am going to propose after this motion, that we direct the County Attorney to go to court and ask for a court decision in a declaratory judgment about whether this is a Charter Amendment or not. Chair Furfaro: Mr. Hooser. Mr. Hooser: As the maker of the motion, if I could have a few more minutes of my time. I would appreciate it, Chair. Chair Furfaro: I believe our rules would allow you as the maker of the motion, an additional five (5) minutes, and I am pretty good about following the rules. Mr. Hooser: Yes. Actually, I think it is an additional fifteen (15), but five (5) will be fine. Chair Furfaro: I am sorry I did not have that memorized, but I will give you five (5). Mr. Hooser: Yes, five (5) should be plenty. I appreciate it, Chair. I just want to correct some of the statements, if I could. This will not break the County financially. If this was voted and let us look at the reality of this. If we received this today, it goes on the ballot. There is a community dialogue and discussion, which is a good thing. People will say, "vote yes" or "vote no." The people that say "vote no" will talk about all of its...and that is the process. Then if it passes the people have then decided. It would then go to court. If it is as bad as some of the members her and some of the members in the community think it is, it is likely that the courts would throw it out relatively quickly and the cost would be relatively minor. I have heard way too often in this conversation things about this is going to cost the County millions. It is absolutely not true. This is part of the democratic process. Along the same lines, we are totally distracted in this argument, as was mentioned before, about the argument whether this is a Charter Amendment or an initiative. That is not the point. The point is what is the decision COUNCIL MEETING 40 JULY 23, 2014 making power and authority of the County? Nowhere does it say we make that determination. Nowhere. Granted, courts have ruled that if it goes though if it is passed and it gets challenged, the court may decide it should have been an initiative. Those court decisions do not weight in, the ones that have been quoted, on the County's authority or not, the Council's authority or not to block a ballot initiative. They weigh in on the substance of it after it passes. I will not argue with that. What the discussion is about what decision making power and authority this Council has. That is the only question that we should be dealing with, not trying to figure out whether it is an initiative or a Charter Amendment. The language is plain. The language is explicitly plain. It says, the only way is to, by petition present it to the Council. That is all it says. It is plain language. It is clear. It says nothing about determining initiative or Charter Amendment. Again, I would just ask that we honor the process, Chair. The process that the Charter envisions, the process of the people having a pathway to lawmaking. Thank you. Chair Furfaro: Thank you. Before we go to take a vote, I do want to first of all thank everyone that is here today. I am one that voted certainly in favor of Bill No. 2491, I am one of those that supported us going to court on Ordinance No. 960, we are going to take this step-by-step, I believe, and we are all anxious to that outcome today. I also believe, and I want to share with you, I believe for my efforts in being a good steward, I went and enrolled and got certified in pesticides and herbicides through the community college. I needed to understand it as this is serious business. This is business that cannot be taken lightly. My family, my children, and my mo`opuna trace their families to the building of the Wainiha Powerhouse to the cowboys at Princeville, the Spanish at Princeville, to housekeepers at Kilauea Sugar. I think in the long term, we need to get an understanding of this with pure clarity. We need to understand due process and perhaps us going and looking for declaratory judgment is the best way. I want to make sure you understand that I take my stewardship here on Kaua`i very, very serious. I made it a point to meet with the Charter Amendment people, but I am also not clear on this being an Ordinance or a Charter Amendment based on the kind of information that I got from the County Attorney. Therefore, I have a tendency to think going toward a declaratory judgment to get clarity for my children and their children is the best thing to do right now. So, that is where I am at. On that note, I will...Mr. Hooser. You have used ten (10) minutes of the clock, but I will give you another... Mr. Hooser: I just have a question for the Chair and perhaps for the other members. Why would we not receive it, allow the signatures to be counted, and seek a declaratory judgment at the same time? That is my question. Chair Furfaro: I think that is a good question, but again, I think...I went to hotel school. I spent time in the South Pacific, Fiji, Tahiti with the French doing some horrible things with activities in the Pacific, but I did not go to law school. The County Attorney is my attorney. Certainly, based on her presentation, I believe going directly to a declaratory judgment is the best approach for me. I hope I answered your question. JoAnn, you are not necessarily entitled to additional time now, but I will give it to you. COUNCIL MEETING 41 JULY 23, 2014 Ms. Yukimura: Well, I think we need a case or a controversy to go to court and I think by rejecting it or not receiving it, that will make it clear to the court that we need some guidance. Chair Furfaro: Well, thank you very much for summarizing it. That was my point with the French government down in Tahiti. They needed to get some clarity about their ability to do testing in the Pacific Ocean. Anyway, Mr. Rapozo. Mr. Rapozo: Thank you, Mr. Chair. I have a similar concern because if in fact, and I guess this question is for the County Attorney, that I do not know how we would get a declaratory action unless we had an action. As I understand the declaratory judgment process, we would have to have enacted something or taken action, but I do not think we submit a question to the court and says, "is this..." I am almost positive because I had gone through that once before. So, there would have to be a...I do not know, Mr. Chair. I do not know if you want to...only because I... Chair Furfaro: I told Mauna Kea to be prepared for that question. Mr. Rapozo: Okay. I just want to make sure the motion, should the receipt fail, I just want to make sure that... Chair Furfaro: There is a fallback motion. Mr. Rapozo: ...the motion is a valid motion. Chair Furfaro: Is it Mona or is it Mauna Kea? There being no objections, the rules were suspended. Chair Furfaro: Your microphone, and Mona, you need to introduce yourself again. MONA W. CLARK, Deputy County Attorney: Mona Clark, Deputy County Attorney. The Charter states in Section 22.06 that if an Ordinance is rejected as insufficient, then it can be taken to court at that point. Let me... Chair Furfaro: Let her continue. Ms. Clark: Let me flip to the right page. Sorry. The final determination as to the sufficiency of a petition shall be subject to court review. So, if a determination is made that it is an Ordinance, that might give the courts some grounds to come in. If you just reject it, there really is not an active case or controversy at that point for the County to pursue. The petitioners would have enacted a case or controversy. Chair Furfaro: Okay, I will give Mr. Hooser the floor, followed by Mr. Rapozo. Mr. Hooser: So, the specific question is would we be able to receive this, allow the Clerk to begin counting, and seek declaratory judgment? COUNCIL MEETING 42 JULY 23, 2014 Ms. Clark: I do not think that there is an actual controversy at that point between the parties if you receive it. Mr. Hooser: So, "yes" or "no." Ms. Clark: I do not think that you would have standing at that point. Mr. Hooser: So, it is your belief that we could not receive this, allow the votes to continue, and seek a declaratory judgment at that point? Ms. Clark: I do not think there is a controversy at that point. I think if you were to declare it...let me think this through. There would not be any conflict if you accept it and process it. The question came up in Baptiste, but it was moot because it passed and then was acted on at that point. So, I think there would be a question as far as standing if you go ahead and process it. Mr. Hooser: Thank you. Chair Furfaro: Mr. Rapozo and then Mr. Bynum. Mr. Rapozo: So, the only way this really could get to court for a declaratory action would be if we reject it and Kaua`i Rising files with the court? Ms. Clark: That is the simplest way, yes. Mr. Rapozo: I mean, that would be the only way. There is no way, and I have a little experience with "shall" versus "may" because I ended up filing the declaratory action against the County, which was found that I did not have standing because there was no controversy. The Council passed the measure so there was no controversy. This is a similar situation. So, I sat in the courtroom being told, "Sorry, you do not have standing and there was not controversy." So, it is a similar situation. The only way to get it into the court would be for us to reject it and have Kaua`i Rising file a declaratory judgment action? Ms. Clark: Yes, it would be their point of action at that point. Mr. Rapozo: Okay. Thank you. Chair Furfaro: Mr. Bynum, you have the floor. Your microphone. Mr. Bynum: And now we are relying on this grassroots group. We are planning to give them a legal bill to try to get their rights. I am confused. Ms. Clark: We are not giving them a legal bill. They would hire an attorney if they want to seek a declaratory judgment that your action was wrong. Mr. Bynum: Because we rejected their claim. So, it puts the ball in their court to go to court, not ours? COUNCIL MEETING 43 JULY 23, 2014 Ms. Clark: That is right. Mr. Bynum: Excuse me, I am not an attorney, but I have been doing this for about fourteen (14) years. Could this Council not receive it, start counting the votes, and then do a separate action and ask the courts? That is the only way to take a question to the court? Ms. Yukimura: Yes. Ms. Clark: I think you have a couple problems. Mr. Bynum: Can the County Attorney answer? Ms. Clark: First of all, you get into the whole issue of whether it was right yet because it would not have become law. So, there is a question of whether it would be appropriate for the court to decide at that point. The courts have rejected... Mr. Bynum: That is enough. Ms. Clark: ...it at that point. Mr. Bynum: Thank you. Chair Furfaro: Thank you, Mona. Mona, I am going to let you step down. There being no objections, the meeting was called back to order, and proceeded as follows: Chair Furfaro: Now, there is no additional testimony. Members, we have heard from the County Attorney and we have a question. Go ahead, let us do a roll call. Mr. Bynum: Call for the question. The motion to receive C 2014-199 for the record was then put, and carried by the following vote: FOR RECEIPT: Bynum, Chock, Hooser TOTAL — 3*, AGAINST RECEIPT: Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 4, EXCUSED & NOT VOTING: None TOTAL — 0, RECUSED & NOT VOTING: None TOTAL— 0. (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Mr. Chock is noted as voting silent, but shall be recorded as an affirmative for the motion.) Mr. Watanabe: Defeated. Chair Furfaro: We are now open to any other motions. Ms. Yukimura: Mr. Chair. COUNCIL MEETING 44 JULY 23, 2014 Ms. Yukimura moved to direct the County Attorney to file a request for declaratory judgment, seconded by Mr. Chock. Chair Furfaro: There is a second from Mr. Chock. Discussion. Mr. Rapozo. Mr. Rapozo: We just heard from the County Attorney that is not...I cannot support that. I simply cannot support it. We cannot make that request. Again, I think we heard from the County Attorney and again, I have been down this road. I know what the outcome will be. So, I will not support that. The only other option is to reject. Ms. Yukimura: May I consult with the County Attorney, please? Chair Furfaro: Yes, I will give you...and you want private time? Ms. Yukimura: No. Chair Furfaro: Oh, okay. Ms. Yukimura: Public time please. Everybody needs to hear this. Chair Furfaro: We will suspend the rules for the County Attorney. There being no objections, the rules were suspended. Ms. Yukimura: Thank you. So, Mona, are you saying that in order for us to have a successful declaratory action in court, I would have to move first to reject? (Mr. Bynum and Mr. Hooser were noted as excused.) Ms. Yukimura: I mean, the motion failed to receive, which means it is rejected, I believe. I think both sides will benefit from a quick judicial decision. So, it is my desire that we get a ruling from the court about whether this is a Charter Amendment or not. Ms. Clark: I think that when you reject it, then the County is no longer supporting it in any way. There is no case or controversy as far as whether it is valid. It is rejected. I think there are issues as far as rightness before the ballot passes and I think it is very likely that you would not have standing as a result of that. Ms. Yukimura: Either way. So, it really will be then, the only one who can now take it to court... Ms. Clark: Is Kaua`i Rising. Ms. Yukimura: So, if we do nothing right now, no motion to reject, but just a failure to receive, then it is their... COUNCIL MEETING 45 JULY 23, 2014 Ms. Clark: It is in their ballpark and they have an actual case... Ms. Yukimura: And we have no standing at all? So, maybe I can make a motion that the County Attorney examine this issue and if there is a way to bring an action from the County to get a declaratory judgment, that we would do that, but we would ask you to just explore that first. Ms. Clark: I think that is fine. I would be happy to explore it and report back to you as far as what your options would be. Ms. Yukimura: Okay, that is fine. Chair Furfaro: Before I recognize Mr. Rapozo, I think that is the bottom line here is also getting an understanding of process and clarity on anything going forward. So, Mr. Rapozo, you have the floor. Mr. Rapozo: She answered my question in her last statement. So, I am fine. Chair Furfaro: I just want to so note that two (2) members have left to attend, on our behalf, the court hearing in Honolulu. Thank you, Mona. There being no objections, the meeting was called back to order, and proceeded as follow: Chair Furfaro: Did you want the floor now, JoAnn? Ms. Yukimura: Yes. Chair Furfaro: You have the floor. Ms. Yukimura: Thank you, Chair. So, in that case, I do not think we need a motion to ask Mona. Ms. Yukimura withdrew her motion to direct the County Attorney to file a request for declaratory judgment. Mr. Chock withdrew his second. Ms. Yukimura: I will make a request to the County Attorney's Office to explore what possibilities there are for a County initiating a court case, but I also want to say that if the supporters of this proposal really want to get something on the ballot, it will be in their interest to imitate a declaratory judgment because if you are really correct, then you will get that determination. If you are not, you will get the guidance to turn it into an instrument that will be legal and successful if it passes, on the ballot. I would urge Kaua`i Rising to consider that option. Thank you. Chair Furfaro: Mr. Rapozo, you have the floor. Mr. Rapozo moved to reject the Charter Amendment petition and request that the Office of the County Attorney explore the County's options for declaratory judgment, seconded by Ms. Yukimura. Chair Furfaro: You want the floor? COUNCIL MEETING 46 JULY 23, 2014 Mr. Rapozo: Yes, I believe that in order to move this process through the court, there needs to be an action taken and to not do anything, it is just not how we do things. We need to motion, we need to take the action, and then Kaua`i Rising has the ability to explore that. I see two (2) issues. Number one, does the Council have the right to reject the petition here on this body. I think that is one issue, and the second is, does in fact, the petition as it is written, fit the bill of an amendment or an initiative. I think those are two (2) that will help this process forward and I think this is best way, the most expedited way that we can get resolution. So, thank you, Mr. Chair. Chair Furfaro: And I do agree with you, Mr. Rapozo, that we need some form of action on the calendar for the County to move in that direction. JoAnn. Ms. Yukimura: I appreciate Councilmember Rapozo's motion and I think too, that as definitive action would give us a better chance of defining a case or controversy. So, I appreciate it. Thank you. Chair Furfaro: Members, on that motion and second by JoAnn, I would like to call a roll call vote. The motion to reject the Charter Amendment petition and request that the Office of the County Attorney explore the County's options for declaratory judgment was then put, and carried by the following vote: FOR MOTION: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST MOTION: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Watanabe: Five (5) ayes, two (2) absent. Chair Furfaro: 5:0, right? Okay, thank you. On that note, I am giong to take a caption break. I want the audience to know, we need to go into Executive Session. When we come back, we will meet in the Chambers on some of the Money Bills. Mr. Rapozo: Mr. Chair, real quick before we recess. Maybe we should go do the... Chair Furfaro: The reading. Mr. Rapozo: Yes, and then that way BC can take more than a caption break. Chair Furfaro: Mauna Kea, may I ask you to come up before we take the caption break, and do the readings for the Executive Sessions? There being no objections, the rules were suspended. MAUNA KEA TRASK: Aloha, good morning Honorable Chair and Councilmembers. For the record, First Deputy County Attorney, Mauna Kea Trask COUNCIL MEETING 47 JULY 23, 2014 on behalf of the County Attorney's Office. Just for clarity, is this for just the one (1) Executive Session, ES-745, or all three (3)? Chair Furfaro: Which are the ones that we have Money Bills pending? Let us do all three (3) of them. Mr. Trask: Thank you. EXECUTIVE SESSIONS: ES-743 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing in Grant W. Gribble vs. County of Kauai, et al., Civil No. 08-1-0231 (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-744 Pursuant to Hawai`i Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing in Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. 10-1-0161 (Agency Appeal), Fifth Circuit Court, currently being appealed by Mr. Sheehan under Intermediate Court of Appeals No. CAAP-11-0000601, Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. CV12-00195 HG BMK, U.S. District Court, and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. ES-745 Pursuant to Hawaii Revised Statutes (HRS) Sections 92-4, 92-5(a)(4), and Section 3.07(e) of the Kaua`i County Charter, the Office of the County Attorney requests an Executive Session with the Council to provide the Council with a briefing in Syngenta Seeds, Inc., a Delaware corporation, et al. vs. County of Kaua`i, Civil No. CV14-00014 BMK (U.S. District Court), and related matters. This briefing and consultation involves consideration of the powers, duties, privileges, immunities, and/or liabilities of the Council and the County as they relate to this agenda item. Mr. Trask: Thank you. There being no objections, the meeting was called back to order, and proceeded as follows. Mr. Rapozo: Mr. Chair. Chair Furfaro: Yes. Mr. Rapozo: How long do we anticiapte? An hour? Chair Furfaro: I would think thirty (30) to forty-five (45) minutes. Ms. Yukimura moved to convene in Executive Session for ES-743, ES-744, and ES-745, seconded by Mr. Chock. COUNCIL MEETING 48 JULY 23, 2014 Chair Furfaro: We have a motion and a second. I would like to have a roll call vote on going into Executive Session, which has been my practice, please. The motion to convene in Executive Session for ES-743, ES-744, and ES-745 was then put, and carried by the following vote: FOR EXECUTIVE SESSION: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 5, AGAINST EXECUTIVE SESSION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Watanabe: Five (5) ayes. Chair Furfaro: Five (5) ayes. Ms. Yukimura: Mr. Chair. Chair Furfaro: We are going to go on...oh, yes, JoAnn. Ms. Yukimura: Can I just have a moment of personal privilege? Chair Furfaro: Moment of personal privilege. Ms. Yukimura: I just want to say that I too wanted to go to Federal Court today and watch the arguments, and I think probably every one of us did. I even asked to have the meeting moved, but circumstances did not allow it. Just so it is clear, that all of us wanted to be there, but then we could not have this meeting. So, I chose to stay. I am glad that Councilmembers Bynum and Hooser are there, but just to know that my absence there does not mean that I did not want to go. Thank you. Chair Furfaro: I would like to clarify that for everyone. All of us wanted to attend. Mr. Hooser and Mr. Bynum had filled in their travel request first, but it does not mean that everybody else did not want to attend, and we could not move the schedule because some of us are making presentations to the Police Commission and others are traveling on National Association of Counties (NACo) business. It just would not have worked. Mr. Rapozo. Mr. Rapozo: Oh, I was not interested in being at that hearing. It cost money for us to go up there and it is a hearing with no involvement on part other than the lawyers. So, I mean, I chose to stay back. I am glad we have someone there to represent the County. I just do not know if Mr. Bynum and Mr. Hooser are representing the County. I guess they are. So, I wish them luck and I expect a report when they come back. Chair Furfaro: I wished them luck and reminded them that when we send people on travel, we expect travel reports on their return. Mr. Kagawa. Mr. Kagawa: Last bit of personal privilege. It is kind of off topic from what you folks have been saying. I know things have been said about COUNCIL MEETING 49 JULY 23, 2014 maybe the Elections staff and our office handling the Charter Amendment. I completely support our staff in what they do and I do not feel good about those comments that I hear because I believe our staff goes beyond the call in trying to serve the public and ourselves. Chair Furfaro: If I could add to that. In the recent years as myself as Chair, I do want everybody to know that the overall grading that we have received of one thousand thirty-eight (1,038) Counties in the Nation, and certainly the highest rated in the State as far as public service and access to information, our County is graded at an A- and it is because of the staff and the diligence that we put into those efforts. So, I equally want to praise our staff. They are good stewards. On that note, we are taking a ten (10) minutes recess. There being no objections, the Council recessed at 11:15 a.m. to convene in Executive Session. The meeting was called back to order at 1:37 p.m., and proceeded as follows: Chair Furfaro: I would like to be able to clear the items that we were resolving in Executive Session, Jade, if we can, to take that vote. JADE K. FOUNTAIN-TANIGAWA, Deputy County Clerk: Chair, did you want to just get the Consent Calendar out of the way right now? Chair Furfaro: Yes, let us do that. CONSENT CALENDAR: C 2014-206 Communication (07/07/2014) from the Budget and Purchasing Director, transmitting for Council information, the Fourth Quarter Statement of Equipment Purchases for Fiscal Year 2013-2014, pursuant to Section 17 of Ordinance No. B-2013-753, the Operating Budget of the County of Kaua`i for Fiscal Year 2013-2014: Mr. Rapozo moved to receive C 2014-206 for the record, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Mr. Hooser were excused). C 2014-207 Communication (07/08/2014) from the Acting Director of Personnel Services, transmitting for Council information, the April-June 2014 Department of Personnel Services Quarterly Report, pursuant to Section 19 of Ordinance No. B-2013-753, the Operating Budget of the County of Kaua`i for the Fiscal Year 2013-2014, which includes new hires, transfers, reallocations, promotions, and vacancies for the fourth quarter: Mr. Rapozo moved to receive C 2014-207 for the record, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Mr. Hooser were excused). C 2014-208 Communication (07/11/2014) from Council Chair Furfaro, transmitting for Council consideration and confirmation, Council appointee Ivory K. McClintock to the Public Access, Open Space, and Natural Resources Preservation Fund Commission (At-Large), who will serve a partial term ending on December 31, 2014. She will then be eligible for a full term thereafter. (Copy of application on file in the Clerk's Office.) Mr. Rapozo moved to receive C 2014-208 for the record, seconded by Mr. Kagawa, and carried by a vote of 5:0:2 (Mr. Bynum and Mr. Hooser were excused). COUNCIL MEETING 50 JULY 23, 2014 Chair Furfaro: Very good. So, we are done with the Consent Calendar. Ms. Fountain-Tanigawa: The next item, did you want to start with Communications or Special Counsel? Chair Furfaro: I had anticipated that the County Attorney would be here as I spoke to him about the vote when we got back in session, and he is here. I was looking for him in the audience. I am sorry. It must be his new haircut and everything. I just did not recognize you. Mr. Trask, if you could go up to the chair, and I could read those items so we could take a vote. Jade, I would like to go the Executive Session items. There being no objections, C 2014-211, C 2014-212, and C 2014-213 were taken out of order. COMMUNICATIONS: C 2014-211 Communication (07/11/2014) from the County Attorney, requesting authorization to expend additional funds up to $100,000 for Special Counsel's continued services provided in Grant W. Gribble vs. County of Kaua`i, et al., Civil No. 08-1-0231 (Fifth Circuit Court), and related matters: Mr. Rapozo moved to approve C 2014-211, seconded by Mr. Chock. Chair Furfaro: We have a motion and a second. Is there any questions? No. Is there anyone in the public that wishes to testify on this item? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Chair Furfaro: We have a motion and Mr. Rapozo, I will give you the floor. Mr. Rapozo: Thank you. This is an item we have not seen for a while. I just wanted to let the public know, this is a case that is going to trial in November of 2015, which I am actually very happy to support. It is a case that is, I guess, beyond the settlement discussions and we will be seeing it going to trial. So, this is the money required to take us, hopefully anyway, through the trial process. Thank you. Chair Furfaro: That is correct. Any further comments? No. Roll call vote, please. The motion to approve C 2014-211 was then put, and carried by the following vote: FOR APPROVAL: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST APPROVAL: None TOTAL — 0, COUNCIL MEETING 51 JULY 23, 2014 EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL—0. Ms. Fountain-Tanigawa: Five (5) ayes. Chair Furfaro: Five (5) ayes. Next Executive Session item is ES-744. Ms. Fountain-Tanigawa: This is Communication C 2014-212 on page 3. C 2014-212 Communication (07/11/2014) from the County Attorney, requesting authorization to expend additional funds up to $20,000 to enable Special Counsel's continued representation in Michael G. Sheehan vs. County of Kaua`i, et al., Civil No. 10-1-0161 (Agency Appeal), Fifth Circuit Court, currently being appealed by Mr. Sheehan under Intermediate Court of Appeals No. CAAP-11-0000601, Michael G. Sheehan vs. County of Kauai, et al., Civil No. CV12-00195 HG BMK, U.S. District Court, and related matters: Ms. Yukimura moved to approve C 2014-212, seconded by Mr. Rapozo. Chair Furfaro: I have a motion to approve and a second. Discussion? Anyone in the audience wishing to testify on this? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Chair Furfaro: May I go ahead and ask for a roll call vote? The motion to approve C 2014-212 was then put, and carried by the following vote: FOR APPROVAL: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST APPROVAL: None TOTAL — 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Chair Furfaro: 5:0. Thank you very much. This last Executive Session item, ES-745. C 2014-213 Communication (07/11/2014) from the County Attorney, requesting authorization to expend additional funds up to $50,000 for Special Counsel's continued services provided in Syngenta Seeds, Inc., a Delaware corporation, et al. vs. County of Kauai, Civil No. CV14-00014 BMK (U.S. District Court), and related matters: Ms. Yukimura moved to approve C 2014-213, seconded by Mr. Rapozo. - Chair Furfaro: There is a motion to approve and a second. Discussion? COUNCIL MEETING 52 JULY 23, 2014 Mr. Rapozo: I do, Mr. Chair. Chair Furfaro: Go right ahead. Mr. Rapozo: Only because I have received a couple of E-mails, I think three (3) E-mails from the public asking me not to support the funding. We do not have a choice. This case is in court and it is moving forward as we speak. I do not know what the alternative is or the option for us at this point, and I know the constituent believes that if we just not fund Special Counsel or just basically throw our hands up. I do not think that is a practical and reasonable solution. I think we have to see this through. I mean, we know this was going to happen with the passage of Bill No. 2491 and we must let that process go through, and it is going to come with a high cost, much higher than what we see right now. I believe it is up to one hundred twenty-five thousand dollars ($125,000). Chair Furfaro: At present. Mr. Rapozo: Currently. With this fifty thousand dollars ($50,000), it will be one hundred twenty-five thousand dollars ($125,000), but I envision this going a lot higher. So, I think it is unrealistic for the public to believe that we cannot approve Special Counsel funds. I think now as this case is in motion, we must see it through to the end. Thank you. Chair Furfaro: Councilmember Yukimura. Ms. Yukimura: Yes, Mr. Chair, I agree with Councilmember Rapozo. I want people who are opposing expenditure of these moneys at this time, to know that actually, no matter what side you are on the issue, you may want to see it at least to get a court ruling on the issue of preemption. For those that are opposed to Bill No. 2491, if the court finds out that there is preemption, I believe they will be very happy. So, it is not...and on the other side, if the court finds that there is not preemption, those who were for the Bill will be very happy. It is an issue that we need decided, and as we said today regarding the Kaua`i Rising, nobody else can make a ruling on this issue in any staying fashion except the court. So, we need to get a court ruling, at least on this very fundamental issue of preemption. I think it will serve everybody to know whether we are preempted or not. Chair Furfaro: Thank you. Ms. Yukimura: Hopefully, it just can stay contained to those major issues, but we will see. Chair Furfaro: Any further comments? I want to thank both Councilmember Rapozo and Councilmember Yukimura. Obviously, as we went through with this track, we understood to get to the playing field to get a legal opinion on some of these items as it relates to our authority on exemptions or not, we would find ourselves in court. This is not the time to step out of the ring. Yes. Ms. Yukimura: I also want to say that earlier this morning Councilmember Hooser was saying that if we allow the Kaua`i Rising petition to go all the way to the ballot and passage that the legal fees will not be large, but I think this is an example of how large and even larger the fees can go. So, if we can go into court sooner, I think it will be cheaper. COUNCIL MEETING 53 JULY 23, 2014 Chair Furfaro: Mr. Chock, did you want to say anything? No. Any testimony from the public? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Chair Furfaro: Let us go ahead and take a roll call vote, please. The motion to approve C 2014-213 was then put, and carried by the following vote: FOR APPROVAL: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST APPROVAL: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Chair Furfaro: Five (5) ayes. Thank you. We finished our business that relates to our Executive Sessions. I would like to go back and ask Mr. Chock as Vice Chair, to break me for a little while. I will be here, but I want to collect some of my thoughts on some of the upcoming agenda items. Could you take over the meeting? I will be right here. Chair Furfaro, the presiding officer, relinquished Chairmanship to Mr. Chock. Mr. Chock: Sure. Do you want to move to the next item then? Ms. Fountain-Tanigawa: Sure. This is on page 2. C 2014-209 Communication (06/24/2014) from the Executive on Aging, requesting Council approval to apply for, receive, and expend funds from the grant amendment awarded by the Corporation for National and Community Service to the County of Kaua`i's Agency on Elderly Affairs, Kaua`i Retired and Senior Volunteer Program (RSVP) for a one-time augmentation in the amount of $2,500, which would be in addition to the carry forward amount of $1,194, and $62,847 grant funds already awarded, to assist the Kauai RSVP in carrying out a national service program as authorized by the Domestic Volunteer Services Act of 1973, as amended, (Title 42 United States Code (USC), Chapter 22): Ms. Yukimura moved to approve C 2014-209, seconded by Mr. Rapozo. Mr. Chock: Thank you. Motion and a second. I do not see anyone here, a representative here. Would anyone like to testify on this? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: COUNCIL MEETING 54 JULY 23, 2014 Mr. Chock: Questions that we need to send over on this item? The motion to approve C 2014-209 was then put, and carried by a vote of 5*:0:2 (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro is noted as voting silent, but shall be recorded as an affirmative for the motion) (Mr. Bynum and Mr. Hooser were excused). Mr. Chock: Motion passes. Next item, please. C 2014-210 Communication (06/30/2014) from the Chief Licensing Examiner and Inspector, requesting Council approval to apply for, receive, and expend grant funds in the total amount of $42,204, comprised of two (2) Federal grants in the amounts of $17,204 and $25,000. These grant moneys would be used to purchase equipment for the Driver License Division's Security Floor Plan (SFP), which is needed to achieve full compliance with the Real I.D. Act of 2005: Ms. Yukimura moved to approve C 2014-210, seconded by Mr. Rapozo. Mr. Chock: Motion and a second. No one is also here from our Driver's License Division. Do we have anyone that would like to testify? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Mr. Chock: Seeing none, any questions that we would like to pose? Councilmember Yukimura. Ms. Yukimura: Yes, thank you. No questions, but I just want to commend the Licensing Division for pursuing Federal grants for equipment. That is going to help our budget, that we do not have to pay for it, and the improvements that it will make are required by law, apparently. So, that is great that they are able to find another funding source than our General Fund. Mr. Chock: Any other questions? Further discussion? The motion to approve C 2014-210 was then put, and carried by a vote of 5*:0:2 (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro is noted as voting silent, but shall be recorded as an affirmative for the motion) (Mr. Bynum and Mr. Hooser were excused). Mr. Chock: Motion passes. Do you want to move to Claims? Ms. Fountain-Tanigawa: The next item is on page 3, Claims. CLAIM: C 2014-214 Communication (07/03/2014) from the Deputy County Clerk, transmitting a claim filed against the County of Kaua`i by Richard A. Schmidt, for reimbursement of expenses, pursuant to Section 23.06, Charter of the County of Kaua`i: Mr. Rapozo moved to refer C 2014-214 to the County Attorney's Office for disposition and/or report back to the Council, seconded by Ms. Yukimura. COUNCIL MEETING 55 JULY 23, 2014 Mr. Chock: Thank you. Motion here. Anyone would like to testify on this? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Mr. Chock: Any questions or discussion? The motion to refer C 2014-214 to the County Attorney's Office for disposition and/or report back to the Council was the put, and carried by a vote of 5*:0:2 (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro is noted as voting silent, but shall be recorded as an affirmative for the motion) (Mr. Bynum and Mr. Hooser were excused). Mr. Chock: Next item, Committee Report. COMMITTEE REPORT: HOUSING & TRANSPORTATION COMMITTEE: A report (No. CR-HT 2014-02) submitted by the Housing & Transportation Committee, recommending that the following be Received for the Record: "HT 2014-02 Communication (04/08/2014) from Council Chair Furfaro, requesting the presence of the Housing Director, to provide an update on the Lima Ola Workforce Housing Development," Ms. Yukimura moved for approval of the report, seconded by Mr. Rapozo, and carried by a vote of 5*:0:2 (*Pursuant to Rule No. 5(b) of the Rules of the Council of the County of Kauai, Council Chair Furfaro is noted as voting silent, but shall be recorded as an affirmative for the motion) (Mr. Bynum and Mr. Hooser were excused). Mr. Chock: Motion passes. Resolutions. RESOLUTIONS: Resolution No. 2014-36 — RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO ANY COUNTY COUNCIL VACANCY IN OFFICE: Mr. Rapozo moved for adoption of Resolution No. 2014-36 on second and final reading, seconded by Ms. Yukimura. Mr. Chock: Motion to approve and a second. Anyone would like to testify on this item? There being no objections, the rules were suspended to take public testimony. Mr. Chock: Felicia? No. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: COUNCIL MEETING 56 JULY 23, 2014 Mr. Chock: Councilmember... Mr. Rapozo: Just a question on the number of votes required today for the passage of Resolutions. We have two (2) excused members. It is five (5)? Okay, five (5). Mr. Chock: Five (5). So, this is an amendment that Councilmember Rapozo had asked to propose. Did you want to speak to it a little further? Mr. Rapozo: I think we have discussed it. I will just say that the reason for this being introduced was because of the community's request that we set the process in the Charter. This is a Resolution that would put this on the ballot for the public to vote on. I hope we can get this on the ballot. I think, again, a lot of the people had expressed some concern about the current process and this is what they had asked for. So, I allowed the process to work and we will get it on, and hopefully it can be on the ballot. Thank you. Mr. Chock: Further discussion? Mr. Kagawa: Are we going to do public testimony first? Mr. Chock: I asked already. Mr. Kagawa: Thank you, Chair. I certainly do not want to look back at what was done in the past. Going forward, I feel like if we do approve this Resolution, it will give incentive for the candidates running. We have twenty (20) amazing candidates running for County Council this year, and I think that is due to a lot of concern out there in the community about the direction that we are heading financially, I guess, in many other ways as well as we have seen in this past year and a half that I have been on the Council. I think if not one consolation of finishing in eighth place, that is always the toughest one to swallow because you just missed out on getting on the Council, but at least it will be, I do not want to say a consolation prize, but you will be guaranteed a shot should a Councilmember vacate, that you would step right in. While I see, again, twenty (20) amazing candidates running, I certainly think that the eighth place candidate will be right there almost in equal with the sixth and seventh places. The public having voiced their support and like I said, it will set the tone. It will be crystal clear as to the direction of the Council should a vacancy arise in the future. I think having this will take out the politics out of the politics, if I may say so. Anyway, I will be supporting this. I think it will be clear going forward what will happen to this body should a Councilmember vacate the office and certainly, like I said, this year's election is going to be a lot of fun for people to watch. Certainly, not so much fun for us, but the public is going to win this year because they do not have just two (2) contenders. They have twelve (12) contenders. So, it will be fun and I hope the Council will see it my way that it would be an easier and clearer decision the next time we have that before us. Thank you. Mr. Chock: Councilmember Yukimura. Ms. Yukimura: I will not be voting in favor of this Resolution. I know that on its face it seems like the best way to choose the eighth vote getter in the past election, but if you consider what would be the two (2) objectives in the case of a vacancy. To me, it would be one, to pick the best possible COUNCIL MEETING 57 JULY 23, 2014 person available to sit on the Council and it would be to pick this best person as expeditiously as possible so that the Council does not go too long with six (6) members rather than a complete Council. If I try to understand what the writers of the present Charter were thinking, and I think Mr. Imparato's testimony on this matter also said that. We are a year and a half since the last election. There might be many people as there were, when the vacancy occurred when Councilmember Nakamura left to join the Mayor's Administration. There were many, many people potentially available to this job and I think the job is to pick the best person available at the time that the vacancy occurs. Now, I guess, if we think that the election process is the best way, we should hold an election, but because I think the timeframe was so short and this is an extraordinary situation when there is a vacancy, the writers of the Charter said, "We will leave it to the County Council." So, I think there is a lot of wisdom in the present system and I am also of the opinion that the system worked the last time there was a vacancy. Even though I voted for Councilmember Chock as the best candidate available, one is never sure how a new Councilmember will be until he or she is tested in the fires of office. I have been more than please by Mr. Chock's performance, his calm and gracious demeanor, his thoughtful voting, his humble willingness to work hard and learn on a very steep learning curve, his respect for every person, his quick and intelligent mind, and most of all, his courage and ability to make tough decisions has really impressed me. There have been times where I have been disappointed that Councilmember Chock did not vote my way, but I was not looking for a "yes man" when I voted for Mr. Chock to step into this vacancy. I was looking for an outstanding leader and more than anything else, I found that Councilmember Chock who teaches leadership, actually walks that talk in leadership. So, to me, the system is not broken and I do not think we should change it. Mr. Chock: Thank you for more than one (1) reason there for sharing that. I am going to move to Council Chair. Chair Furfaro: Yes, thank you. Although it has not been mention, I am the co-author of this piece along with Mr. Rapozo. Although you heard some of the rationale of why it would not be supported by certain members, I also want to point out that I do believe that this process is one where six (6) remaining members could end up in a tie and when you end up with a tie, the final decision maker goes across the street to the Mayor. I believe that really works against the direction that the Council wants to go, but I think more importantly, if you look at the eighth person in an election, the bottom line is the choice, the numbers, the totals were in fact the choice of the people, and that is what an election is about. So, unfortunately, because this is a Charter piece, this will require five (5) votes today. If it was a pure Resolution, it would only require four (4). So, with Councilmember Yukimura not supporting it, this item will probably die today. Mr. Chock: I have done a little bit of work so I will express some of this information just for discussion purposes and see where we can go. Initially, I was supportive of this moving towards the eighth vote, actually. I was hoping to get more testimony and unfortunately, we did not get much. I remember Mr. Imparato's testimony. Anyway, I started looking into this. My main concern when I looked at it was not so much that it went to the eighth person, but whether or not that eighth person really represented the majority of the voice of the voters. For instance, there could be a big disparity between the seventh and eighth numbers and we have not seen that statistically or historically yet, but that could in fact occur. I mean, I would hate to see someone in eighth place who has just a few COUNCIL MEETING 58 JULY 23, 2014 hundred votes as opposed to one thousand votes show up and that we get stuck with someone like that. So, I started looking also into what kinds of thing we could do in terms of creating criteria. I think that there are some room within our own Rules to look at how we might be able to at least categorize what it is we are looking for or expecting out of a Councilmember and I am working currently on that. The other thing that we started to do was to look at the other Counties. None of the other Counties actually go to the eighth place or ninth place for that matter. What they do is very similar to what we have here. Big Island here is sixty (60) days vacancy. So, we have up to sixty (60) days and then it goes to the Council Chair to appoint. Some of these on the other islands move towards a Special Election. So, I thought that might be an option for us as well. However, a Special Elections are very expensive as I found out. Actually, more in the ballpark of three hundred thousand dollars ($300,000). So, I do not think that is probably where we want to go for our budget and what our needs are here. The bottom line for me, is as I have unfolded more information for this issue, I am not ready to vote on it. I am supportive of us putting something into action, but would require either some changes to occur here with the current Resolution to be more of what we need or to defer it until we can do so. I will open it up to further discussion. Councilmember Yukimura. Ms. Yukimura: So, I am appreciative of the Chair reminding us about the problem if it is a split. I would be open to figuring out a better way than having it go to the Mayor in the case of a split. So, I am willing to work on another Charter Amendment that looks at that issue as well as perhaps some of the things that you have raised. I think the point about picking the person who would be representative of the majority vote of the people is a good one, but I think it should be done at the time there is the vacancy. So, a Special Election would be the best way to go, but the expense is an issue that I believe the writers of our Charter thought about, and the time that it takes for a Special Election as well. So, I think all of these considerations have to be thought through before we think about changing the Charter. Mr. Chock: Thank you. Councilmember Rapozo. Mr. Rapozo: Thank you. I just wanted to make a comment that the reason for the Resolution had nothing to do with Mr. Chock being selected as the replacement. I share your comments about Mr. Chock's performance. This was simply because of the public brought it to my attention as well as the Chair. After we discussed it, we agreed to go ahead and put it out to the voters. I think that in any normal succession of Boards and Commissions and so forth, that there is a natural succession. That Chair goes to Vice Chair and so forth. It just seems reasonable to me that at the time of a vacancy, you just go down to the next available, qualified person. Now, with the way it is currently laid out, it is basically the majority of the Council not the majority of the people, but at the election, that is the people's voice. I know Councilmember Yukimura, you talked about it should be addressed at the time of the vacancy, but I think the public has an opportunity to learn about all of the candidates during the campaign. They get to hear them, they get to read their things, they speak to them, and they vote accordingly. In my mind anyway, it just makes sense that the results of the election is the people's choice and should there be a vacancy, that the person that the people chose in the order of the votes would naturally succeed. So, that is my rationale. It has absolutely nothing to do with Mr. Chock. That was sort of the precedent that was set by this Council in the past and we deviated this year again, and totally legal COUNCIL MEETING 59 JULY 23, 2014 and within the Charter's parameters, but it raised a lot of questions in the community and that is why this is here today. I respect the will of this body. I will not support a deferral. I think we should vote on it today and move on. Thank you. Mr. Chock: Councilmember Kagawa. Mr. Kagawa: Yes. Just at a quick glance I looked back at the 2012 General Election results and seventh place finisher was Councilmember Bynum, twelve thousand four hundred forty-seven (12,447). Eight place finisher was KipuKai Kuali`i, eleven thousand nine hundred forty-one (11,941). So, about five hundred (500) votes was the difference. Dickie Chang was eleven thousand votes (11,000), about nine hundred (900) less than KipuKai. The top vote getter had only fourteen thousand (14,000). So, there was a lot of support for Mr. Kuali`i and he went through all of the forums, house to house, and he gave out things with us at the County Farm Fair. I mean, there is a price that you pay to run and I just really feel like it is the people's choice and we would be really doing a service to the public as public servants, by giving the vacancy to the next highest vote getter. I think that it epitomizes a public servant for us to make that bold decision. Who cares about Maui? Who cares about the Big Island? It is what do we do on Kaua`i to stand out and be above everybody. Let us not look at the past. We talk about the past. Let us not look at the past. Councilmember Chock has done an honorable job and this is not against him. This is just saying, after this election, where does this Council make that tough decision. Should it be the next Council? Should it be the Council after that? It will be crystal clear, eighth place finisher knows if somebody drops out, he is going to get what he wanted, what he aspired, and what he worked hard for. I really believe in repaying people who work hard and put their energy out there to try and serve the public and going through the election is not easy. It is not easy. We are going to go through it again, all of us, and I just think it is the right thing to do. I know members have concerns and other theories, but I just think that this is the right thing to do. I thank Councilmember Rapozo and Chair Furfaro for even having this on the agenda and giving us a chance to vote on this. Thank you. Mr. Chock: Any further discussion before we move towards a vote? Councilmember Yukimura. Ms. Yukimura: I just want to say that I guess, the Chair pointed out that with my vote against it, we would not get five (5) votes, but I also want to say that without two (2) Councilmembers here, you could have gotten five (5) votes without my vote. Mr. Chock: Further discussion? For me, I think there is little bit more work that can be done here and that is my hesitation in supporting this right at this moment. With that, we will go to a roll call. The motion for adoption of Resolution No. 2014-36 on second and final reading was then put, and failed adoption by the following vote: FOR ADOPTION: Kagawa, Rapozo, Furfaro TOTAL— 3, AGAINST ADOPTION: Chock, Yukimura TOTAL— 2, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL— 0. Mr. Chock: 3:2. COUNCIL MEETING 60 JULY 23, 2014 Ms. Fountain-Tanigawa: 3:2. Mr. Chock: Thank you. So, we will move to the next item. Resolution No. 2014-37 — RESOLUTION PROPOSING A CHARTER AMENDMENT RELATING TO THE PUBLIC ACCESS, OPEN SPACE, AND NATURAL RESOURCES PRESERVATION FUND Mr. Chock: Anyone to testify on this item at this time? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Mr. Rapozo moved to receive Resolution No. 2014-37 for the record on second and final reading, seconded by Mr. Kagawa. Mr. Chock: The motion is to receive. Any questions or discussion here? Councilmember Yukimura. Ms. Yukimura: I agree with the motion to receive. I am a strong supporter of open space and public access, and I know so are the rest of the members around this table. I just want to say I worked in 1988 with the Kilauea community to acquire Crater Hill in Mokolea Point before this legislation was even in place and then in 1992 when the legislature gave the Counties the power to enact a half percent (0.5%) excise tax. I was Mayor then and I proposed such a tax for open space acquisition and public transportation, and the Council at that time killed my bill. Also, as Mayor, I initiated the expansion of Poipu Beach Park up to Brennecke's Beach. Then when on the Council around 2005, I initiated the acquisition of the one hundred thirty-eight (138) coastal acres are Ninini close to Ahukini in Lihu`e, which will become a future coastal park. Finally, as a founding member of Kaua`i Public Land Trust, I worked with the Board and Jenifer Luck to acquire and pass on the Hodge property next to the Hanalei Pier to expand Black Pot Beach Park. So, you can see I am totally in favor of public lands acquisition and open space expansion. However, when you sit around this table, you cannot be single purpose in your thinking. We, Councilmembers, have to keep the big picture in mind and we cannot just pour resources into one (1) purpose because in the time of tight budget, putting the moneys in one (1) place will take away from another place. So, this proposed Charter Amendment would establish, as a minimum, two percent (2%) of Real Property Taxes gives us no flexibility at budget time and without another vote for the people. Whereas it is better now the way we do it and we had a very lively discussion about we can set a minimum by Ordinance and we have right now, set the minimum at one point five percent (1.5%), just under two percent (2%), but at least we can change that if we have to and we can take public input and balance all of the other needs. So, to me, the present system is working much better. Voting against this Resolution does not we are against open space acquisition. We are just trying to be responsible in terms of all of our responsibilities and the needs of this community. So, we need the flexibility and therefore, I will not be voting for this Resolution, which will take away the flexibility that we need. COUNCIL MEETING 61 JULY 23, 2014 Mr. Chock: Further discussion? Councilmember Kagawa. Mr. Kagawa: Thank you, Chair. I almost wholeheartedly agree with Councilmember Yukimura on this one. The Council upped our open space from the Mayor's proposal of half a percent (0.5%) to one and a half percent (1.5%) and we did that during the budget time. That is the appropriate time to see if the County can afford to put aside that money. It is like a luxury and it is where we want to go. Of course it is a good luxury that everybody wants. You can never have enough of it, but the County has to make sure each year as we work through the budget, that we take care of our core functions and then the second priority maybe would be things like open space, and third would be expanding our County services even more than what it currently is. Like Councilmember Yukimura just said, we are dwindling County resources. I think I got five (5) calls during lunch about property tax bills. With the cap, I guess, disappearing they are seeing bills tripling. One of them went up four (4) times and these are people with fixed incomes that are calling me. It may not seem much to us who are not in that elderly category, but when you are on fixed income, you budget for what you paid last year. You do not put aside that money expecting your bill to go up four (4) times. If we upped the open space amount, we are going to commit to that should it pass in a Charter Amendment, and that may mean at some point, raising taxes even more. I cannot see us cornering ourselves into that situation. I think it is a Council's job every year to dictate how much we allocate to what priority. I think let us not give away the main source of our County. Our job on the County Council is to allocate our budget each year and to do what is first, necessary, and then to do what we can do additionally. So, I will not be supporting this Resolution. Thank you. Mr. Chock: Further discussion? Councilmember Rapozo. Mr. Rapozo: Thank you. I agree. I agree one hundred percent (100%). When we pass an Ordinance, it is relatively quick to do an Ordinance, three (3) weeks, four (4) weeks, maybe five (5) weeks at the most we can get an Ordinance passed. Likewise, it takes that same amount of time to repeal, fix, or amend. In a Charter Amendment you can only fix it or remove it in an election. Unfortunately, many times when we pass laws and it is obvious how many times we amend bills here on the Council, or amend ordinances. When we do things such as the Real Property Tax situation we are in today, we are going to have to take a look at that. Had that been a Charter Amendment, there is nothing we could do until the next election and hope that the public agrees with us and passes it in the election. That is the danger of this Resolution. It is we are talking about funds. We are talking about money that is going to be taken from that is going to be taken from the General Fund and put in a specific purpose of open space, which is a very worthy cause, but this Council has to have the flexibility to be able to utilize General Funds when it is necessary. As much as I support open space, I think Councilmember Yukimura throughout her career, was very successful in obtaining open space via the traditional means, not with special funds. So, think the intention is great, but I am very cautious as far as General Funds money because there are dwindling and when we do a Charter Amendment, in fact, in the Charter, it prohibits Charter Amendments made by a petition if it involves revenues to the County. That is one of the rules. You cannot do it and that was proven in `Ghana Kauai. This is the same situation. We are basically going to take moneys from General Funds, taxpayers' moneys, and put it into open space. What that will force us to do is replace that General Fund moneys somewhere else and that is going to COUNCIL MEETING 62 JULY 23, 2014 be property tax. So, I cannot support this, the Resolution. Obviously, I made the motion to receive which will kill it. People will construed this as being anti-open space. I hope not. I hope they understand the rationale that we have to be very flexible with our funding mechanisms because if we think we had a problem this year, if we are here next year, it is going to be worse. So, I think we need to prepare for that storm. I will not be supporting it. Thank you. Mr. Chock: Thank you. Council Chair. Chair Furfaro: Yes. I think briefly, we covered a couple of items. Well, JoAnn touched on items that she has dealt with her Council time and equally there are things that I have dealt with on my Council time. For example, perseveration of certain historicallcultural lands in Hanalei with the taro, the kalo treatment as a zoning item. It was also my Bill that dealt with reducing the open space density to be equal to agriculture. That was a very big challenge because accordingly, open every five (5) acres would have given you another house and if you go back as far as even Kilauea Sugar, you would have known that Kilauea Town would have had a completely different look about it should that have passed. Also, the money set aside for the acquisition of not the particular piece of property in Hanalei that JoAnn mentioned, but just in general, Black Pot, because of my deep familiarity with my father-in-law and Captain Henry Gomez and the benefits of that area. We also find ourselves noting that even through trading certain types of zoning, we have had success with the open space corridor along Ahukini and the airport that was negotiated, but the bottom line here, I think Mr. Kagawa touched on it. We need to keep this process to the point when we get into the budget balances. It is really important. We always hear about the money that has been spent recently, but how quickly we forget that the State took twenty-six million one hundred thousand dollars ($26,100,000) of our money on the Transient Accommodation Tax (TAT). How quickly we forget this recent legislation, they are taking another eighteen million dollars ($18,000,000) away from us for two (2) years in what should have been our legislative balances, and yet, services were delivered at a certain height. So, the choices were very simple. Cut services like the bus or use some of our reserve to cover that while we get through this challenge with the State. The challenge with the State, people need to know, is real. If they in fact started this year with about five hundred thousand dollars ($500,000) putting aside for their retirement obligation, that is five hundred thousand dollars ($500,000) they would have to put aside until the year 2025 before they would be current and that would put burdens on us and that is tough. So, I think the way Mr. Kagawa summarized it, if we have extra budget balances at the end of a budget session, hey, we can allocate more money. Just that simple. To over commit right now in what is very difficult financial times, part of our burden is driven to us by the State. How have we been able to acquire open space? We have had some successes in the more conventional ways as well as the fact that we have an opportunity every year, to set more money aside, and those are all good points. Thank you. Mr. Chock: Thank you, Chair. I am ready to move on this motion to receive as well. I think the key terms are flexibility, and we need that in this time and period. While we support wholeheartedly, the efforts of the open space and want to see these funds increase, we need to be good stewards of our budget as well. Hopefully, we can make it up with the next Resolution by including Ivory McClintock here. So, with that... Chair Furfaro: I do have one more thing. COUNCIL MEETING 63 JULY 23, 2014 Mr. Chock: Sure. Chair Furfaro: I also want to point out that the original open space piece did not allow for the Open Space Commission to actually have the cost of having a Staff Planner. That was introduced by JoAnn and myself to add that staffing position so they would have somebody that can constantly mentor them through the process and that is a cost that is not covered by the open space. That is a budget operating cost. So, thank you. Mr. Chock: If there is no further discussion, can we have a roll call on this item? The motion to receive Resolution No. 2014-37 for the record was then put, and carried by the following vote: FOR RECEIPT: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL— 5, AGAINST RECEIPT: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Mr. Chock: Six (6) ayes. Ms. Fountain-Tanigawa: Five (5) ayes to receive. Mr. Chock: Next item, please. Resolution No. 2014-41 — RESOLUTION CONFIRMING COUNCIL APPOINTMENT TO THE PUBLIC ACCESS, OPEN SPACE, AND NATURAL RESOURCES PRESERVATION FUND COMMISSION (Ivory K. McClintock): Ms. Yukimura moved for adoption of Resolution No. 2014-41 on second and final reading, seconded by Mr. Kagawa. Mr. Chock: Motion to approve. Anyone would like speak on this item? There being no objections, the rules were suspended to take public testimony. There being no one present to provide testimony, the meeting was called back to order and proceeded as follows: Mr. Chock: Councilmember Yukimura. Ms. Yukimura: I just want to reiterate. I think Councilmember Bynum made the point that it is so wonderful to have a young person who grew up on this island come home and serve in this capacity. So, I am very pleased to support the nomination. Mr. Chock: Thank you. COUNCIL MEETING 64 JULY 23, 2014 Mr. Kagawa: Thank you. I did not come in when she was here, but I have never met her, but just amazingly bright and young. I think that it is always good to have fresh faces out there serving the public and providing new ideas. So, I will be supporting her. Mr. Chock: Thank you. Great. Further disucssion on this item? Chair Furfaro: Yes. Mr. Chock: Yes, Council Chair. Chair Furfaro: I just want to thank Mr. Hooser for putting Ivory's name forward. I thought it was an excellent nomination and a nomination from the Council, not the Administration. So, thank you, Mr. Hooser. Mr. Chock: Great nomination from the Council. Again, hopefully, what we cannot make up with money, we can makeup with some human capital with her innovation and hard work. So, I will call for the vote at this time. The motion for adoption of Resolution No. 2014-41 on second and final reading was then put, and carried by the following vote: FOR ADOPTION: Chock, Kagawa, Rapozo, Yukimura, Furfaro TOTAL — 5, AGAINST ADOPTION: None TOTAL— 0, EXCUSED & NOT VOTING: Bynum, Hooser TOTAL— 2, RECUSED & NOT VOTING: None TOTAL — 0. Ms. Fountain-Tanigawa: Five (5) ayes. Mr. Chock: Five (5) ayes. I believe with that, it concludes our business for the day. Yes? ADJOURNMENT. There being no further busi •:-, - e Council Meeting adjourned at 2:24 p.m. Respe• lly submitted, •UNTAIN-TANIGAWA Depulir ounty Clerk :aa