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HomeMy WebLinkAbout2015_0622_AgendaPacketJan TenBruggencate Members: Chair Ed Justus Allan Parachini Joel Guy Patrick Stack Vice Chair Cheryl Stighneier COUNTY OF KAUAI CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday, June 22, 2015 4:00 p.m. or shortly thereafter Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, Lihu'e, HI 96766 CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of May 18, 2015 BUSINESS CRC 2014 -06 Discussion and possible decision - making on whether there is a need to define what a charter amendment is a. Add a preamble or an additional paragraph to section 1.01; (On- going) 1) Update on the preamble from the County Clerk's Office b. Discussion and possible decision - making on defining what a petition initiated charter amendment is as outlined in the Charter Amendment Proposal for Article XXIV, revised 5/18/15 c. Discussion and possible decision - making on the method for amending a petition initiated charter amendment as outlined in the Charter Amendment Proposal for Article XXIV, revised 5/18/15 d. Discussion and possible decision - making on the percentage of required voters for petition initiated amendments (Article XXM, initiative and referendum (Article XXII) and recall (Article XXVII). ANNOUNCEMENTS Next Meeting: Monday, July 27, 2015 at 4:00 pm in the Mo'ikeha Building, Meeting Room 2A/B ADJOURNMENT EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92 -7(a), the Commission may, when executive session on any agenda item without written public notice if the anticipated in advance. Any such executive session shall be held pursuant limited to those items described in HRS §92 -5(a). Discussions held in Exec the public. Cc: Deputy County Attorney Philip Dureza An Equal Opportunity Employer deemed necessary, hold an executive session was not to HRS §924 and shall be ;utive Session are closed to PUBLIC COMMENTS and TESTIMONY Persons wishing to offer comments are encouraged to submit written testimony at least 24 -hours prior to the meeting indicating: 1. Your name and if applicable, your position/title and organization you are representing; 2. The agenda item that you are providing comments on; and 3. Whether you will be testifying in person or submitting written comments only; and 4. If you are unable to submit your testimony at least 24 hours prior to the meeting, please provide 10 copies of your written testimony at the meeting clearly indicating the name of the testifier; and 5. If testimony is based on a proposed Charter amendment, list the applicable Charter provision. While every effort will be made to copy, organize, and collate all testimony received, materials received on the day of the meeting or improperly identified may be distributed to the members after the meeting is concluded. The Charter Commission rules limit the length of time allocated to persons wishing to present verbal testimony to five (5) minutes. A speaker's time may be limited to three (3) minutes if, in the discretion of the chairperson or presiding member, such limitation is necessary to accommodate all persons desiring to address the Commission at the meeting. Send written testimony to: Charter Review Commission Attn: Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 Lihu`e, HI 96766 E- mail:bdavis ,kauai.gov Phone: (808) 241 -4919 Fax: (808) 241 -5127 SPECIAL ASSISTANCE If you need an alternate format or an auxiliary aid to participate, please contact the Boards and Commissions Support Clerk at (808) 241 -4919 at least five (5) working days prior to the meeting. Charter Review Commission — May 18, 2015 2 1 P a g e COUNTY OF KAUAI y Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date May 18, 2015 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 4:00 p.m. I End of Meeting: 5:40 p.m. Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Ed Justus; Allan Parachini; Patrick Stack Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Jay Furfaro (exit at 4:30 p.m.) Excused Absent Member Cheryl Stiglmeier SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:00 p.m. with 5 Commissioners resent Approval of Regular Open Session Minutes of Apri127, 2015 Mr. Justus moved to approve the minutes as Minutes circulated. Mr. Stack seconded the motion. Mr. Parachini noted on page 4, 1" full paragraph line 7 "in tact" should be one word: intact Page 4, 1 full paragraph line 11 change supervisions to: provisions Attorney Dureza noted on page 10, last paragraph line 4 change "onerous" bMr. to: on your own. "was" "Attorney Justus suggested adding following the words Dureza" LA in the first line of the last paragraph. Motion carried 5:0 as amended during discussion. Agenda Chair TenBruggencate asked if there were any additions or changes to the agenda. Chair TenBruggencate requested an addition to the agenda for an update Charter Review Commission Open Session May 18, 2015 Page 2 SUBJECT DISCUSSION ACTION from the Boards and Commissions Administrator on filling the 7th seat on the Commission. Mr. Stack moved to amend the agenda to include the update. Mr. Justus seconded the motion. Motion carried 5:0 Mr. Furfaro said he expected to submit a name to the Mayor within two weeks. Those names and the application are subject to the Mayor's review. Subsequently 6 days after that hopefully the interview can be put on a Council agenda or included as a special agenda item on a Committee meeting. Business CRC 2014 -06 Discussion and possible decision - making on whether there is a need to define what a charter amendment is a. Add a preamble or an additional paragraph to section 1.01, (On- going Staff reported that an email had been received confirming that the County Clerk would be available at the June 22 meeting. Ms. Fountain- Tanigawa has been the County Clerk for only a week so they need time to review and research the request. Chair TenBruggencate said he had also spoken with her about an hour ago and she will know more by the June meeting. Mr. Parachini moved to defer this item to the June 22 meeting. Mr. Justus seconded the Mr. Justus stated he would be off island for the June 22 meeting. motion. Motion carried 5:0 b. Charter Amendment Proposal for Article XXIV clan ing what . constitutes a Charter amendment, revised 5/4/15 (On -going Mr. Parachini said after receiving valuable feedback from the Commission and Ms. Morikami he made a couple of minor changes in the text of the amended version of section 24.01. He is still concerned about empowering the county attorney with the ability to conclude whether something is appropriately called a charter amendment. In the second paragraph of 24.01 B, he is recommending Charter Review Commission Open Session May 18, 2015 Page 3 SUBJECT DISCUSSION ACTION striking the words county attorney in the second line and then inserting somewhere in there the clerk shall call upon a panel of three attorneys admitted to practice in the State of Hawai `i to determine the proposals validity as a charter amendment under this section. Two of the panel members would be appointed by the county attorney and one by the initiative's proponents. Chair TenBruggencate asked if that was a motion to which Mr. Parachini said he supposed it was. The Chair asked if there were other changes they should deal with at the same time. Mr.. Parachini said in the following paragraph county attorney would be changed to panel. Mr. Parachini moved that in the second paragraph of 24.01 B, to strike the words county attorney in the second line and then inserting somewhere in there the clerk shall call upon a panel of three attorneys admitted to practice in the State of Hawai `i to determine the proposals validity as a charter amendment under this section. Two of the panel members would be appointed by the county -Mr. Parachini continued on the issue of what the signature percentage is that attorney and one by the initiative's proponents. needs to be sorted out and whether it should considered as a completely separate item or fold it into this discussion. Staff stated it is listed as a separate item on the agenda. Mr. Justus seconded the motion. Mr. Justus asked who would pay for the cost of the panel or would it be a volunteer panel. Mr. Parachini said he had not considered that but supposed it would be a volunteer panel just as the boards and commissions are volunteers. Mr. Justus said he could easily see a petitioner committee say this is not fair — you have two people from the county who could just say no. Also what happens if the panel concludes it is not a charter amendment? Mr. Parachini said you are back to the dilemma he described at the last meeting of whether this provision should spell out that if they disagree they can get a declaratory judgment from the court. He did think it was unnecessary to include that Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION because it goes without saying that the proponents can get a declaratory judgment. Mr. Justus said with it being a county entity, whether the county attorney or the attorney panel, if the language Mr. Parachini was proposing puts the power of approval in the hands of the county attorney or an attorney board. His concern is if the proposed amendment put forth by the petitioners in which the language is valid but the county attorney or the panel disagrees the burden of the cost of challenging the county in court is now put onto the petitioners. That has the dangerous potential of discouraging them from challenging the county as with the recent GMO amendment. Not saying they were right or wrong, but they had the option of going to court but they didn't because they were concerned about the cost; that was their major issue. The burden of cost in challenging voter petition amendments should be on the county, and not the burden of the people because the voter petition is the purest, most direct form of democracy the charter has and it should remain that way. Mr. Justus proposed that instead of giving a county body the ability to decide yes or no on whether it is a charter amendment it could simply say that if the county concludes that the measure is not an appropriate charter amendment the county may seek a declaratory ruling, although they have that power already. Then it would follow that the county has no power to prevent a petition initiated charter amendment that comports with the definition of §24.01 from being placed on the ballot and the new language would say exceptfor the method described in this article. Mr. Parachini asked the Attorney in simply referring to the county in that context is ambiguous or not. Mr. Justus was asked to repeat the language which he said was the fifth paragraph of the proposal and reads: If the county - and you can substitute council or clerk or whatever — concludes the measure is not an appropriate charter amendment the county make seek a declaratory ruling. Chair TenBruggencate asked if Mr. Justus meant from the circuit court. Mr. Justus said from whatever judicial — whether it is the circuit court or whatever. The next sentence would say the county has no power to prevent the petition initiated proposed charter amendment that comports the definition in 24.01 from being laced on the ballot except for the method described in this article. Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION Mr. Parachini had no problem with the language if county is sufficiently unambiguous. Mr. Furfaro brought it to the Commission's attention that article VIII, page 15, defines the county attorney and their powers as exactly that in defending the county; not to be a negotiator and/or used in arbitration for third parties. The powers, duties, and functions of the county attorney shall be the chief legal adviser and legal representative of all agencies, including the council, and of all officers and employees in matters relating to their official powers and duties, and he shall represent the county in all legal proceedings. He shall perform all other services incident to his office as may be required by law. Mr. Furfaro said he is having a hard time that there is an amendment now making the county attorney's office part of a negotiating piece on resolving what is right and wrong. His job is to defend the county and those departments mentioned in 8.04. Mr. Justus said in that context if we say the county concludes a measure that could mean the county could be the mayor's office, the clerk, or the council. Mr. Furfaro said this was the piece they got in trouble with last time because the petitioners were told, through the county chair twice,. that they could not use the county attorney to be their defender of policy based on article VIII. His sole responsibility is to be the legal representative of the county — all parts of the county. Deputy Attorney Dureza said he was working on the original question and did not follow this line of thought completely. Whether or not just saying "the county" could be ambiguous, considering there are many interpretations of what the county is, it could be somewhat problematic because it does not clearly spell out who gets to decides whether or not it goes to court. Mr. Justus asked if it would be less ambiguous to say the county clerk. Attorney Dureza said that would be less ambiguous, but it is something the Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION Commission needs to consider because new powers are being given to the county clerk. Chair TenBruggencate wished to summarize where the Commission was at this point. The suggested language from Mr. Parachini is that a petition comes in a three attorney panel is empanelled to look at whether it meets the requirements for a charter amendment, and if it does not the process stops right there. Mr. Justus was asked how his suggestion was different from that to which he said it is completely different. It would proceed in that the petition committee files their papers with the county clerk. The county clerk then examines if it has enough signatures, and if the county clerk feels this is not a valid charter amendment he can then seek a declaratory ruling, but he does not have the power to prevent it from going onto the ballot. Chair TenBruggencate asked if he was recognizing that the court has that authority to which Mr. Justus said yes. Mr. Stack said they should go back to the very basis of what the Commission does. Mr. Stack said it was wonderful to have a county attorney to help guide the Commission through these times, but in his history an attorney is a counselor, an advisor — not a decision maker. Mr. Stack again noted he was glad the attorney was there to help guide them through this process, but fears initiating a new committee is wrong. Mr. Parachini recalled the council debate about the Kauai Rising proposal where there was a point at which a suggestion was made that the county seek a declaratory judgment on its own. That obviously never happened. The county attorney was then tasked with providing an opinion, but there was some consideration at the council level of having the county take the initiative and seek a declaratory judgment. Mr. Furfaro added that the biggest issue was the legal representative that the third party wanted to get to that point they felt should be the county attorney to give them legal advice, which is not what Charter Review Commission Open Session May 18, 2015 Page 7 SUBJECT DISCUSSION ACTION article VIII reads. Mr. Justus also thought a correction to the proposal is in the fourth paragraph which reads upon filing of such petition with the council and yet the paragraph before that says by petition filed with the county clerk. Mr. Parachini said that was an oversight and should have been changed to upon filing of such a petition with the county clerk. Mr. Furfaro exited the meeting at 4:30 p.m. to attend another meeting. Mr. Justus suggested scratching out with the council from that language so it reads upon filing of such petition... Mr. Parachini said that was just an oversight, he intended to delete that, but failed to do so. Chair TenBruggencate said his view is different from both Mr. Justus' and Mr. Parachini's views. That is why you have a county attorney. When there is an issue before the county they are to represent the county, but you ask them how it looks. That is what we do with charter amendments; we send them to the county attorney's office to see if it is in the correct form, is it appropriate — it is a normal rational thing to do. Chair TenBruggencate said he would give the county clerk the authority to take it to the county's attorney and say is this what it purports to be. So that makes three suggestions: one is the panel, another is the declaratory judgment kicking it up to the courts to decide, but the county would pick up the tab for that. Realistically it might not make a difference because the other side will have to file an answer to defend their decision. Mr. Justus said it would not prevent the amendment from appearing on the ballot and that is what concerns him. The way the proposal is currently worded it gives someone the ability to deny voter petition amendments even if they are absolutely one hundred percent okay. Chair TenBruggencate said he starts from the presumption that our county attorney is a rational representative of the community so the secondary presumption is if the county attorney says this isn't what it purports to be then it is not perfectly okay. Chair TenBruggencate thought Mr. Justus was saying nobody in the county can get in the way of this steamroller; it has to go on the Charter Review Commission Open Session May 18, 2015 Page 8 SUBJECT I DISCUSSION I ACTION ballot unless a court stops it. Mr. Justus said his concern is about potential abuse. When the Constitution was written it was written under the assumption that people aren't necessarily going to do the right thing. If that was the case we would not have the Bill of Rights. Chair TenBruggencate said the Bill of Rights was not there when they wrote the Constitution. Mr. Justus said that was what he was saying, and his point is they need to make it absolutely clear so they can eliminate potential abuses. Mr. Justus said if you get an absolutely accurate amendment that is going to make good change but it challenges the administration or the council, and the county attorney can say he does not like it . there is a potential there. Mr. Parachini said if they did that then the hazards that exist now of which the county has run afoul of in the past would remain because if the measure goes on the ballot no matter what the legal opinion is then what is the point of trying to define a charter amendment if people could still put forward anything as a charter amendment. If a legal opinion was sought they can ignore it; that is what we have now. Mr. Justus agreed with that point, and was one of the things he had proposed in trying to deal with the fact that nobody is saying whether it is or isn't a valid amendment. He had earlier proposed the idea that the petitioners would provide their own legal review when they submitted the document to show that it is in line with what is in the charter. That did not pass this .Commission, but he is still open to that being a possibility. We also had a conversation before in which the petitioners present it to the county attorney and ask they check to see if it is a valid charter amendment. If they did not want to do that they could have their own Hawaii approved attorneys to do that, but at least there would be some legal review attached to it to justify it. Mr. Parachini said the Kauai Rising organization had a lawyer working with them who subsequently admitted at a County Council meeting that he was not licensed in Hawaii. Never the less he presented what amounted to what Mr. Justus is talking about. It is hard to imagine an attorney for the proponents delivering an opinion that what his clients seek to present is at odds with section 24.01. - Mr. Justus agreed saying it was a conflict of interest because they are Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION being paid by the petitioners or volunteering their time. Chair TenBruggencate said speaking for the option he supports, his sense is if they are going to assume the county attorney's office is so subject to the perils of politics that they will misrepresent what they are actually seeing in a document, and he personally does not assume that, then we should also assume that if they did the panel then they would pick two people who would have the same view and the same result would come about. Mr. Justus said there is another option if they decide to go the panel route, which would be to have one attorney picked by the petitioner, one by the council and those two agree on a third attorney. This would eliminate the potential for bias. Mr. Guy said he thinks it needs to be defined as he can't put it together as to how that panel would work. There is a lot of conversation needed as to how that panel would operate, what would be its guiding rules. Mr. Guy want to know if it would be rule making process or would it be spelled out in the charter on what governs the panel. Trying to explain all of that in a charter amendment, is there another way around that? Do you put in the charter who selects whom and who is the deciding factor, who is the tie breaker on this vote? There is a lot to be flushed out. Mr. Guy said he would love to have it move away from coming down to one guy, and is not under the assumption that he has any malicious intent at all,. If the petitioners get a high percentage of the public's vote, and it comes down to this one guy who is looking out for the best interest of the county when it is an opposing position to what the county is operating at and in the best interest of the county to keep it the way it was, but this petition changes that so there are a lot of questions on how that works. Mr. Parachini said he would be happy to accept what the Chair's concept is. Mr. Guy asked Chair TenBruggencate what his summary was to which the Chair said it was the original language. Mr. Justus said he mentioned earlier that the voter petition process was designed as the purest most direct form to put the people's power into the amendment process. When the charter was first presented to the board of supervisors explaining what the charter is and all of its different segments they made it very clear that the power to amend was either Charter Review Commission Open Session May 18, 2015 Page 10 SUBJECT DISCUSSION ACTION done by the council or by petition of the voters. By having someone or a body potentially having the power to say no this is not valid eliminates that direct democracy. Mr. Justus said he hopes to maintain making sure the people have the avenue and they don't get burdened with the cost of challenging the county. Maui County has a process whereby if you get ten percent of the signatures it gets put to the council to say yes or no to put it on the ballot. If council says no then the people can go back and get twenty percent of the signatures and it goes directly onto the ballot. That could be a potential that we use if we want to create a safety net and eliminate other hazards. Mr. Stack said the Maui model is interesting, but it also opens itself up to a lot of legal and governmental chicanery. For instance if the petition delivered ten percent of the votes is there a time limit imposed on the county to respond to accept or reject that ten percent? It gives Maui County an opportunity to stonewall any petition; just don't respond to it. Mr. Justus said he did not know the details of their charter. Mr. Parachini thought that was easily remedied by building in a time limit. Mr. Parachini said they place a great deal of trust in the county clerk to implement the charter under the detailed procedural rules created by the county clerk for the initiative submission process. Just as that was perfectly appropriate under the charter as it existed the clerk would be expected to devise a further process that we should not dictate, but the clerk would have the confidence of the county to sort out what the answer to the question is. Mr. Guy asked if they have to convey that to the voters that it is something they want because they would not be voting on that, they would be voting on this panel and the county clerk would figure out how they operate. Mr. Guy liked the direction this was heading and is more open to that than having this all fall back to the county attorney to make the decision for all the work that has gone down, and the panel would help with the transparency. Mr. Parachini thought the core .question was there has to be a process by which someone would determine whether a proposal fits the definition of a charter amendment. If we do not have that we do not have anything; we have not fixed the problem. Mr. Parachini said he is more comfortable with the language floated in the proposal than with the panel concept because the panel concept gets potentially very complicated. If the Charter Review Commission Open Session May 18, 2015 Page 11 SUBJECT DISCUSSION ACTION properly empower the clerk and properly empower the county attorney they can address that. Mr. Justus asked if there was a way to give the county clerk the ability to say something is or is not a charter amendment. If the power is given to the county clerk that still requires the petitioners to have to challenge the county if the clerk says it is not a charter amendment is there a way that the petitioners cost for challenging the county would fall onto the county? Attorney Dureza did not know how that would play out. In court you can always ask for attorneys' fees but it all depends on the strength of the case and if it is awarded. Typically the practice is that each bears their own attorneys' fees. Technically either party can sue for attorneys' fees depending on the issue. Mr. Justus said his concern is money being the determining factor in pursuing what is right. Chair TenBruggencate said there were two previous charter amendments that were clearly not charter amendments and got thrown out in court; it cost a lot of money. Some of the Charter Commissioners concluded that a lot of the Kauai Rising proposal was not a charter amendment. What we are trying to produce is a safeguard in asking the county attorney to make a judgment — is it what it appears to be? A county attorney who makes a really bad judgment is going to get a lot of criticism and he would hesitate to say the county attorney is incapable of handling this simple job. Chair TenBruggencate said he does have an issue with the county paying for the cost because even a bad case will go in if there are no legal fees. Mr. Justus said at the very least they can correct some of the language for the sake of discussion. Mr. Justus moved to amend the motion in that the 4th paragraph, 111 sentence the words with the council be deleted so it reads: upon filing of such petition, the county clerk........ Mr. Parachini seconded the motion. Motion carried 5:0 Chair TenBruggencate asked if they wanted attorney or attorneys to have a first shot at it or should it go straight to court, and then it can be decided if it is to be a panel or an individual. Mr. Stack said the ultimate resolution will come from Charter Review Commission Open Session May 18, 2015 Page 12 SUBJECT DISCUSSION ACTION the court so why not skip that and go straight to court and save some money. Chair TenBruggencate said if someone presents a valid charter amendment and everyone recognizes it as a valid charter amendment it does not need to go to court. Mr. Justus thought this was coming up because recently the council decided they had the power to reject charter amendments; that is when it became an issue. In the past if there was any question about charter amendments the county did the declaratory ruling route because that was how they understood the charter worked. Chair TenBruggencate said the county has never done a declaratory ruling. Mr. Justus said they did for the 2004 `Ohara amendment to which Chair TenBruggencate said only after it was passed. Mr. Justus said they actually sought it before it went onto the ballot and they tried to expedite the process in order to get it defeated before it could get onto the ballot. Chair TenBruggencate stated that was not his recollection, but Mr. Justus said he had the legal things with him if anyone wanted to read them. Mr. Justus continued by saying the council already knew they had the ability to do the declaratory ruling; it is only recently they read an interpretation of the charter to say they had the power to say something wasn't valid. That is why we are having this discussion of who has the authority to reject it. In the original version, the unaltered version of article XXIV, nobody has the power to reject it. The modern attorney opinion says the council does, but it is Mr. Justus' understanding that most everyone here said no the council does not have that authority. By sticking with the declaratory ruling we are sticking with historical practice. Mr. Guy asked how he was clarifying that and was he writing that into the proposal. Mr. Justus said it was not necessary to write it in, but it certainly made it a clearer process and eliminated any confusion for the council or any other body to think they have a power to do anything other than a declaratory ruling. Mr. Guy felt it would have to be a part of the proposal because if you didn't, according to Mr. Justus' example previously, they always did it and now they don't. Mr. Justus said there is the automatic safeguard that if anyone is presenting an amendment that obviously is not legal language, section 24.01, would say is limited in substance amending the form of county .government. That would not have been in there before but now they know if it Charter Review Commission Open Session May 18, 2015 Page 13 SUBJECT DISCUSSION ACTION goes to court they will lose automatically.. Mr. Parachini said they could resolve this dilemma by removing the words county attorney and have that line read shall seek a timely legal opinion on whether the measure. ........granted that does not tell the county clerk how to do it, but there are a lot of things the county clerk is not told how to do. Mr. Justus said if it is a legal opinion and they are still given the power to reject it. Mr. Parachini said if the legal opinion said this is not kosher then the clerk tells the petitioners no go. Asked what happens if it is a valid opinion but the legal opinion says it is not valid it puts the ball back into the petitioner's court to take the county to court. Mr. Parachini did not think the court of public opinion would sit still for something that glaring. We can't write a charter amendment that prevents any possible abuse that can be conjured up. Mr. Justus said he was okay with the county incurring the cost of doing a declaratory ruling. It is fair for the people who put in so much work and effort to do a petition and it matches the historical actions of the county. Chair TenBruggencate said they are going to spend the money anyway. Who decides to take it to court? Mr. Justus said the county would decide that whether we empower the county clerk or whomever, but if the county has a problem with the charter amendment they have that clear power to seek a declaratory ruling on it, but it wouldn't prevent it from being put on the ballot. Chair TenBruggencate said they have that power now. Mr. Justus said this would eliminate any misunderstanding that they have any other powers. Chair TenBruggencate said Mr. Justus is suggesting taking the powers away from the county council and throw it into the courts. Mr. Justus said the courts are the ones who have the power to determine whether it is valid or invalid. Chair TenBruggencate said as it stands today the county council asserted that authority and nobody has challenged that authority so as it stands today the practice in the County of Kauai is the county council has that authority. You are talking about taking that authority away from the county council, seven elected representatives of our community, and putting it in the hands of an appointed judge. Mr. Justus said he would prefer the judgment of the judge who is required to have voluminous legal experience Charter Review Commission Open Session May 1-8,2015 Page 14 SUBJECT DISCUSSION ACTION in looking at this stuff as opposed to seven individuals, who have no requirements except that they live here, to make a decision on whether something is a valid or invalid charter amendment. Mr. Parachini was asked to reread his proposal: The clerk shall call upon a panel of three attorneys admitted to practice in the State ofHawai `i to determine the proposal's validity as a charter amendment under this section. Two of the panel members would be appointed by the county attorney and one by the initiative's proponents. Attorney Dureza said they have moved really far from what the agenda is supposed to be as they have moved from trying to define what a charter amendment is into trying to determine whether or not they want a safeguard and who decides what a charter amendment is. Chair TenBruggencate said while the agenda is as the attorney suggests the proposed charter amendment has been part of the overall process for some time. Attorney Dureza said the vote they will be taking does not comport with what the notice says. To be fully compliant with the Sunshine Law as they are trying to define what a charter amendment is and not trying to determine whether or not they want the safeguard it might be more prudent to defer the vote to the next session so it can be properly noticed. It has evolved to a different issue than what it originally was supposed to be. Mr. Parachini felt it had been properly noticed since the proposed language is incorporated in the agenda materials. Attorney Dureza asked if they were not voting on totally different language such as the declaratory route. Chair TenBruggencate said the suggestion in the agenda is the charter amendment proposal for article XXIV; it just does not mention all of the stuff in it but the Commission can take notice of the attorney's concerns and defer this item after they decide if they can come to any consensus on this subject. Mr. Justus moved to amend the motion to read in the 4t' paragraph: Upon filing of such petition, the county clerk shall then examine it to see whether it contains a sufficient number of valid Charter Review Commission Open Session May 18, 2015 Page 15 SUBJECT DISCUSSION ACTION signatures of registered voters. The next paragraph would read: If the county clerk concludes the measure is not an appropriate charter amendment, the county clerk may seek a declaratory ruling. The next paragraph would read: The county clerk has no power to prevent a petition initiated proposed charter amendment that comports with the definition in 24.01 from being placed on the ballot, except for the method described in this article. Mr. Guy seconded the Chair TenBruggencate said Mr. Justus added they now have to count the motion for sake of discussion. signatures before someone makes the decision which is the opposite of the way it has always been done. Mr. Justus said the language is already there about counting the signatures. Chair TenBruggencate said in recalling the progression he was saying to count the signatures and if there is a problem with the language then they go to court. Mr. Parachini said his intention and what the wording offered says is the opposite of that. In order to avoid the expense of staff time and everything that is brought into play in the process of counting the signatures it would make more sense for the clerk to know yes it is or no it isn't before signatures are counted. Mr. Justus liked that idea and withdrew his motion to be further amended at which time Mr. Guy withdrew his second. The meeting recessed briefly at 5:11 p.m. and reconvened at 5:12 p.m. Mr. Justus moved that the 4a' paragraph to read: Upon filing of such petition, the county clerk shall examine it to see whether it is a valid charter amendment. If the county clerk concludes the measure is a valid charter amendment, the clerk shall then examine it to see Charter Review Commission Open Session May 18, 2015 Page 16 SUBJECT DISCUSSION ACTION whether it contains a sufficient number of valid signatures of registered voters. Next paragraph: If the county clerk concludes the measure is not a valid charter amendment the county clerk may seek a declaratory ruling. Next paragraph: The county clerk has no power to prevent a petition initiated proposed charter amendment that comports with the definition in 24.01 from being placed on the ballot except for the method described in this article. Mr. Parachini seconded Mr. Guy asked why Mr. Justus felt he had to strengthen the article with that last the motion. paragraph. Mr. Justus said he would be just as happy removing it. Mr. Guy said he would have an easier time supporting the motion if that was removed. Mr. Parachini withdrew his second to allow Commissioner Justus to refashion his motion. Mr. Justus withdrew his motion and restated his amended motion starting with the 4t' paragraph to read: Upon filing of such petition, the county clerk shall examine it to see whether it is a valid charter amendment. If the county -clerk concludes the measure is a valid charter amendment, the clerk shall then examine it to see whether it contains a sufficient number of valid signatures of registered voters. Next paragraph: If the county clerk concludes the measure is not a valid charter amendment the county clerk may seek a declaratory ruling. Mr. Parachini seconded the motion. Mr. Stack asked if in the 4? line of the 4t' paragraph the word "called" should be "defined" or "considered to be ". Mr. Parachini said Mr. Justus' amendment Charter Review Commission Open Session May 18, 2015 Page 17 SUBJECT DISCUSSION ACTION has replaced that wording. Chair TenBruggencate said he would be opposing this amendment because he does not want to put that weight on the county clerk, and he did not think the county clerk should be authorized to have that weight; that is a job for the county attorney. Mr. Justus asked if the Chair would be interested in it if it said the county clerk may ask the county attorney to seek a declaratory ruling. Chair TenBruggencate liked the language Mr. Parachini originally wrote, with no panel and let the county attorney make the decision on whether it is or it isn't. The first line of defense should be the county attorney; that is their job. Motion as amended carried 4:1 (nay - TenBruggencate) Chair TenBruggencate said based on the advice from the County Attorney this item should be deferred to the next meeting with the amended language. Mr. Justus suggested the changes defining what a charter amendment is in the first paragraph of section 24.01 be a separate potential charter amendment from the changes in the rest of that section which defines the process. Mr. Parachini said if 24.01 and the other paragraphs are separated, if the voters voted down the mandatory language in those two paragraphs and approved 24.01 as a definition then they are back where they are to which Mr. Justus agreed. Attorney Dureza said if they describe it in terms that relate to the method of introducing charter amendments it would sufficiently be expansive enough. Attorney Dureza said it was the language that was introduced at this meeting that was entirely different from what was noticed to the public. Staff further explained if someone in the public reads only the agenda and not the proposal they might think all the Commission is doing is defining a charter amendment, but the discussion has moved off to include powers, which could be what the Attorney is cautioning them on. Mr. Justus said, as Mr. Parachini pointed out, if they do separate the issues they may lose the effectiveness of defining what a charter amendment is. Mr. Parachini said the risk is if 24.01 is approved by the voters and the other items are not then they are actually in a worse situation than now because it leaves no one and no process to determine whether the proposed Charter Review Commission Open Session May 18, 2015 SUBJECT DISCUSSION ACTION amendment meets the standard. Attorney Dureza suggested noticing for the next meeting to add: clarifying what constitutes a charter amendment and the method for amending the charter. Chair TenBruggencate suggested just saying discussion of possible amendments to article XXIV. Attorney Dureza did not know if that was sufficient notice to the public to encourage them to partake in the discussion. Chair TenBruggencate said he would work on the agenda language with staff. The proposal is to defer this and have the amended language come back before the Commission for discussion. Mr. Parachini said this has been before the Commission for some time and did not know that deferring a matter of this import until September, out of respect for Mr. Justus' vacation schedule, is appropriate. Mr. Guy moved to defer this item to the June meeting. Mr. Parachini seconded the motion. Motion carried 5:0 c. Discussion on raising the percentage of required voters for petition initiated amendments. Mr. Justus said he has opposed raising the percentage but was definitely in favor of lowering the initiative and referendum. He is open to raising the percentage to 10% for petition initiated amendments so long as the proposed language also include in the same question lowering the initiative and referendum number from 20% to 10 %, thereby it is equal; it is not easier to change the charter than it is initiative and referendum. Mr. Parachini liked the concept but thought 15% for each would be a better place to be. Attorney Dureza did not think talking about changing initiative and referendum comports with the notice requirements. Chair TenBruggencate suggested deferring this item and notice it as a discussion of charter Charter Review Commission Open Session May 18, 2015 Page 19 SUBJECT DISCUSSION ACTION amendment, initiative, and referendum as well as perhaps recall, Chair TenBruggencate said they have received a legal opinion in the past that it is probably problematic in a single charter amendment to reference different parts of the charter, but is not sure how to realistically have this discussion if one of the issues is to end up with something balanced without combining them. The Attorney was asked to find a way to deal with the initiative, referendum and charter amendment discussion in a single ballot question. Mr. Parachini moved to defer this item to the June meeting. Mr. Guy seconded the motion. Motion carried 5:0 ES -007: Regular Executive Session Minutes of April 28, 2015 With no discussion, changes or questions Mr. Justus moved to approve the minutes as circulated. Mr. Parachini seconded the motion. ` Motion carried 5:0 Announcements Next Meeting: Monday, June 22, 2015 —4:00 p.m. Adjournment Chair TenBruggencate adjourned the meeting at 5:40 p.m. Submitted by: Barbara Davis, Support Clerk Approved as circulated. (� Approved with amendments. See minutes of Reviewed and Approved by: Jan TenBruggencate, Chair meeting. Jan TenBruggencate Chair Joel Guy Vice Chair Members: Ed Justus Allan Parachini Patrick Stack Cheryl Stiglmeier KAUAI COUNTY CHARTER REVIEW COMMISSION c/o Office of Boards & Commissions 4444 Rice Street, Suite 150 Linu'e, HI 96766 May 8, 2015 Ms. Jade Fountain- Tanigawa County Clerk Kauai County Council Services 4396 Rice Street, Suite 209 Llhu`e, HI 96766 Re: Preamble to the Kauai County Charter Dear Ms. Fountain- Tanigawa: The Charter Review Commission has been discussing what has become of the preamble that was presented to the voters in 1968 and passed as part of the entire charter as indicated in the two attachments found at the KCC (Kaua`i Community College) library, which are from a special insert in the Garden Island Newspaper dated May 6, 1968. We have been advised by our attorney that a preamble is not substantive or operative law. The Charter Review Commission humbly requests your presence at its June 22nd meeting at 4:00 pm in Meeting Room 2 A/B of the Mo`ikeha Building to provide any history as to whether there was a specific reason why it was never included and if the Clerk's Office would consider reinserting the preamble language in printed versions of the charter. Ms. Jade Fountain- Tanigawa May 8, 2015 Page 2 Please contact Barbara Davis (phone 241 4919 or email bdavis@kauai.gov) on your availability or if there are any clarifications that I can assist you with. Cc: Philip Dureza, Deputy County Attorney Charter Review Commission Jan TenBruggencate Charter Review Commission Chair t.'4 -T s V. e....- a �' a tc ;ft"t� r. _ya „ *.. :` �°lt a f4`i -�i✓ >Jai +i. `. F"'�� T,.x'Cyxi. -Wr H ,• :� - ,;� a- + a , r r:' 1.x { 1. �. .?t \, f �y� � ,,( II r '1 . {a lrt?.ri Yiilr, r i /rr 'R M '}' X r.' J ;• �• :J, "` r • ' ' , _ kk 4 .: p. '.4ii•., +A6 {: y.7,. .a t '.j .1 �1�i. ,,Y [71 ��1,, t`S.. 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In • f IS IN L op I to do Is Ift r t `r• 1 • S• . � _ a R _ S• .I ti + gii t — Ift •A y Im _ - • • .._ '' rr Z � T f - rw l y 1: 14 -� r i •r , • 4 r' y.♦I A ` t �} A Imo.„ r s4, y IF ' f f { pia ax < y s I I nr I' u 1N w r •f•. Ito ! In • f IS IN L op I to do Is Ift r t `r• 1 • S• . � _ a R _ S• .I ti + gii t — Ift •A y Im _ - • • .._ '' rr Z � T f - rw l y 1: 14 -� r i •r , • 4 r' y.♦I A a V VA q .� Section 24.01. [Initiation of Amendments.]Initiation and substance of amendments. Any amendment to this charter is limited in substance to amending the form or structure of count government. It is not a vehicle through which to adopt local legislation. Amendments to this charter may be initiated only in the following manner. A. By resolution of the county council adopted after two readings on separate days and passed by a vote of five or more members of the council. B. By petition [presented to the council] filed with the county clerk, signed by registered voters comprising not less than five percent (5 %) of the number of voters registered in the last general election, setting forth the proposed amendments. Such petitions shall designate and authorize not less than three nor more than five of the signers thereto to approve any alteration or change in the form or language or any restatement of the text of the proposed amendments which may be [made] suggested by the county attorney. (Amended 2012) Upon filing of such petition [with the council], the county clerk shall examine it to see whether it is a valid charter amendment. If the county clerk concludes the measure is a valid charter amendment, the clerk shall then examine it to see whether it contains a sufficient number of valid signatures of registered voters. (Amended 2012) If the county clerk concludes the measure is not a valid charter amendment, the county clerk may seek a declaratory ruling. Section 24.02. Elections to be Called. A. Any resolution of the council or valid petition of the voters proposing amendments to the charter shall provide that the proposed amendments shall be submitted to the voters of the county at the next general election. B. The county clerk shall have summaries of the proposed amendments published in a newspaper of general circulation in the county and the entire text published by electronic or online publication on the official website of the County of Kauai at least thirty (30) days prior to submission of the proposed amendments to the voters of the county at the next general election. (Amended 2014) C. Should the majority of the voters voting thereon approve the proposed amendments to this charter, the amendments shall become effective at the time fixed in the amendment, or, if no time is fixed therein, thirty (30) days after its adoption by the voters of the county. Summaries of any charter amendment shall be published in a newspaper of general circulation in the county and the entire text published by electronic or online publication on the official website of the County of Kauai within thirty (30) days of the effective date of such amendment. (Amended 2014) Section 24.03. Charter Review. The mayor with the approval of the council shall appoint, with appropriate staffing, a charter commission composed of seven members who shall serve in accordance with Section 23.02C of this Charter to study and review the operation of the county government under this charter for a period of ten years commencing in 2007. Thereafter, the mayor with the approval of the council shall appoint a charter commission at ten year intervals. In the event the commission deems changes are necessary or desirable, the commission may propose amendments to the existing charter or draft a new charter which shall be submitted to the county clerk. The county clerk shall provide for the submission of such amendments or new charter to the voters at any general or special election as may be determined by the commission. The commission shall publish summaries of any such amendments or new charter not less than thirty (30) days before any election at least once in a newspaper of general circulation within. the county and the entire text of the amendments or new charter by electronic or online publication on the official website of the County of Kauai. (Amended 2014) A. Unless a new charter is submitted to the voters, each amendment to the charter shall be voted on separately. B. If a majority of the voters voting upon a charter amendment votes in favor of it or a new charter, if a new charter is proposed, the amendment or new charter shall become effective at the time fixed in the amendment or charter, or if no time is fixed, thirty (30) days -after its adoption by the voters. Summaries of any new charter or amendment shall be published in a newspaper of general circulation within the county, and the entire text published by electronic or online publication on the official website of the County of Kauai not more than thirty (30) days after its adoption. (Amended 2014) Ballot Question: Shall it be clarified what constitutes a charter amendment and shall the processing of proposed petition charter amendments also be clarified? Revised 061515 Justus ARTICLE XXII INITIATIVE AND REFERENDUM Section 22.01. Power of Initiative and Referendum. A. The power of voters to propose ordinances (except as provided in Section 22.02) shall be the initiative power. B. The power of the voters to approve or reject ordinances that have been passed by the county council (except as provided in Section 22.02) shall be the referendum power. (Amended 1976) Section 22.02. Limitations to Powers. The initiative power and the referendum power shall not extend to any part or all of the operating budget or capital budget; any financial matter relating to public works; any ordinance authorizing or repealing the levy of taxes; any emergency legislation; any ordinance making or repealing any appropriation of money or fixing the salaries of county employees or officers; any ordinance authorizing the appointment of employees; any ordinance authorizing the issuance of bonds; or any matter covered under collective bargaining contracts. (Amended 1976) Section 22.03. Submission Requirement. A. Voters seeking to propose an ordinance by initiative shall submit an initiative petition addressed to the council and containing the full text of the proposed ordinance. The initiative petition shall be filed with the clerk of the council at least ninety -six (96) hours prior to any regular council committee meeting. B. Voters seeking referendum of an referendum petition addressed to the particular ordinance and requesting that referred to the voters of the county, ordinance shall submit a council, identifying the it be either repealed or C. Each initiative or each referendum petition must be signed by registered voters comprising not less than twenty percent (200) of the number of voters registered in the last general election. D. If an initiative or referendum measure is to be placed on the ballot in a general election, the initiative and referendum petitions must be submitted not less than one hundred twenty (120) calendar days prior to the day scheduled for the general election I n the county. (Amended 1976, 2012) Section 22.04. Committee. For each initiative or each referendum petition there shall be a petitioner's committee representing all the petitioners, which committee shall be composed of five (5) members who shall be qualified voters of the county and signers of the petition. The committee shall be responsible for circulation of the petition and for assembling and filing the petition in proper form. The committee shall have the power to amend or withdraw the petition as provided by this article. (Amended 1976) Section 22.05. Sufficiency. Initiative and Referendum Petition. Form and A. For immediate acceptance of the petition, the clerk of the council shall require reasonable compliance with the following. (1) The petitions indicate by name and address, the five (5) signers who constitute the petitioner's committee for that petition. (2) The petitions indicate the address which all notices for petitioner's committee are to be sent. (3) The signatures to petitions be filed on papers of uniform size and style and assembled as one instrument. (4) Each signature on the petition shall be followed by the name (printed) and the place of residence of the person signing. (5) The petition be signed by the required number of qualified registered voters of the county. B. Signatures are invalid and petitions insufficient: (1) If signers are not given text of the ordinance sought to be of the ordinance is not contained paper or set of signature papers petition throughout circulation, an opportunity to read the full reconsidered and if the full text in or attached to each signature of an initiative or referendum (2) If affidavits (executed by the circulators for each set of signature papers) are not attached to the papers at the time of filing of petitions with the clerk of the council. Each affidavit shall attest to the effect that: a particular individual personally circulated an identifiable set of papers; each paper bears a stated number of signatures; each signature on a paper was affixed in the circulator's presence; each signature is the genuine signature of the person it purports to be. C. Individual signatures may be withdrawn within fifteen (15) days after the filing of an initiative or referendum petition with the clerk of the council by the filing of a written request thereof, by the individual, with the clerk or the council. (Amended 1976) Section 22.06. Procedure After Filina, A. Certificate of Clerk; Amendment. Within twenty (20) days after the filing-of an initiative or referendum petition, the clerk of the council shall complete a certificate as to the sufficiency of the petition. • As soon as a certificate is completed, the clerk shall notify the petitioner's committee of the contents of the certificate. If a petition is certified sufficient, the clerk shall present his certificate to the county council at its next meeting. If the clerk certifies a petition insufficient, his certificate shall show the particulars wherein the petition.is defective. A majority of the petitioner's committee may elect to amend a petition certified insufficient and must so notify the clerk, but if a majority does not elect to amend a petition, the clerk shall present his certificate to the county council at its next meeting. B. Supplementary Petition. If a majority of the petitioner's committee elects to amend its petition, then within ten (10) days after receipt of the clerk's certificate, the committee shall file a supplementary petition upon additional papers. The supplementary petition shall be governed by the same requirements as for an original petition. Within five (5) days after the filing of a supplementary petition, the clerk shall complete a second certificate as to the sufficiency of the original petition as amended by the supplementary petition. Thereafter, the procedural requirements for the petition as amended shall be the same as that for the original petition as provided in subsection A, this section. C. Council Review. A maj may request the county council or before the meeting at which to the council. The council certificate, upon the committ( reject the certificate or may sufficiency of the petition by ority of the petitioner's committee to review a clerk's certificate, at the clerk presents the certificate shall review the latest clerk's se's request, and shall approve or substitute its own determination of resolution. D. Court Review; New Petition. A final determination as to the sufficiency of a petition shall be subject to court review. A final determination of insufficiency, even if sustained upon court review, shall not prejudice the. filing of a new petition for the same purpose. (Amended 1976) r Section 22.07. County Council Action on Petitions. A. The county council shall proceed immediately to consider an initiative or referendum petition which has been determined sufficient in accordance with the provisions of this article. If an initiative petition is concerned, the ordinance it proposes shall at once be introduced subject to the procedures required for ordinances under Article IV of this charter; however, not more than sixty (60) days shall elapse between the time of first reading of the initiative proposal as a bill and completion of action to adopt, amend, or reject the same. If a referendum petition is concerned, the ordinance to which that petition is directed shall be reconsidered by the council; and not latex than thirty (30) days after the date on which the petition was determined sufficient, the council shall, by ordinance, repeal, or, by resolution, sustain the ordinance. B. If the council rejects an initiative amendment proposal or passes it with an amendment unacceptable to a majority of the petitioner's committee, or if the council fails to repeal an ordinance reconsidered pursuant to a referendum petition, it shall submit the originally proposed initiative ordinance or refer the reconsidered ordinance concerned to the voters of the county at the next general election. C. The council may, in its discretion, and under appropriate circumstances, provide for a special election. D. The ballot for such measures shall contain an objective summary of the substance of the measure and shall have below the ballot title designated spaces in which to mark a ballot FOR or AGAINST the measure. Copies of initiative or referendum ordinances shall also be made available at the polls. E. Suspension of Ordinance. When a referendum petition or amended petition has been certified as sufficient by the County Clerk, the Ordinance sought to be repealed in the petition shall not be effective and shall be deemed suspended from the date the petition is certified as sufficient until the voters have voted on the measure and the election results have been certified as provided- in this Article. (Amended 1976, 1980) Section 22.08. Withdrawal of Petitions. An initiative or referendum petition may be withdrawn at any time prior to the sixtieth (60th) day immediately preceding the day scheduled for a vote in the county by filing with the county clerk a request for withdrawal signed by at least four (4) members of the petitioners committee. Upon the filing of the request, the petition shall have no further force or effect and all proceedings thereon shall be terminated. (Amended 1976) Section 22.09. Results of Election. If a majority of the voters voting upon a proposed initiative ordinance shall vote in favor of it, the ordinance involved shall be considered adopted upon . certification of the election results. If a majority of the voters voting upon a referendum ordinance shall vote against it, the ordinance involved shall be considered repealed, upon certification of the election results. (Amended 1976). Section 22.10.: Upon approval by a majority of the votes cast on the proposal, the charter amendment shall take effect upon all legislative acts not excluded herein enacted after January 2, '1977. (Amended 1976) Section 22.11. A referendum that nullifies an existing ordinance shall not affect any vested right or any action taken or expenditures made up to the date of the referendum. (Amended 1976) I ARTICLE X=I RECALL Section 27.01. Recall Procedure. Any elective officer serving a four -year term as provided for in this charter may be removed from office by the voters of the county. The procedure to effect such removal shall be in accordance with this article. A petition demanding that the question of removing such official be submitted to the voters shall be filed with the county clerk. Such petitions shall be signed by currently registered voters numbering not less than twenty percent (200) of the voters registered in the last general election. (Amended 1984) Section 27.02. Petiti( from the county clerk, blank petition papers Prior to the issuance be made by one or more name and office of the )ns. Petition papers shall be procured only who shall keep a sufficient number of such on file for distribution as herein provided. of such petition papers, an affidavit shall voters and filed with the clerk, stating the officer sought to be removed. (Amended 1984) Section 27.03. Signatures. Each signer of a recall petition shall print and sign their name and shall place thereon after the name, social security number, place of residence and voting precinct. To each such petition paper there shall be attached an affidavit of the circulator thereof, stating the number of signers to such part of the petition and that each signature appended to the paper was made in the circulator's presence and is believed to be the genuine signature of the person whose name it purports to be, and that each signer understood it to be a recall petition of a specific elected officer. (Amended 1984) Section 27.04. Filing and Certification. All papers comprising a recall petition shall be assembled and filed with the county clerk as one instrument within thirty (30) days after the filing, with the clerk, of the affidavit stating the name and office of the officer sought to be removed. Within ten (10) days from the date of the filing of such petition, the clerk shall determine the sufficiency thereof and attach thereto a certificate showing the result of his examination. If the clerk shall certify that the petition is insufficient, he shall set forth in the certificate the particulars in which the petition is defective, and shall return a copy of the certificate to the person designated in such petition to receive it. (Amended 1984) Section 27.05. Supplemental Petitions. In the event the initial petition contained insufficient signatures, such recall petition may be supported by supplemental signatures of voters signed in the manner required in Section 27.03 of this article appended to petitions issued, signed, and filed as required for the original petition at any time within ten (10) days after the date of the certificate of insufficiency by the clerk. The clerk shall within five (5) days after such supplemental petitions are filed make a like examination of them, and if his certificate shall show the same to be still insufficient, he shall return it in the manner described in Section 27.04 of this article to the person designated in such petition to receive the same, and no new petition for the recall of the officer sought to be removed shall be filed within one year thereafter. (Amended 1984) Section 27.06. Recall Election. If a recall petition or supplemental petition shall be certified by the clerk to be sufficient, he shall promptly notify in writing the officer sought to be recalled of such action. If the official whose removal is sought does not resign within five (5) days after mailing of such notice, the clerk shall thereupon order and fix a day for holding a recall election. Any such election shall be held not less than seventy -five (75) nor more than ninety (90) days after the petition has been presented to the official, at the same time as any other special county or state election held within such period, but if no such election is to be held within such period, the clerk shall call a special recall election to be held within the time aforesaid. If less than fifty percent (50 %) of the total number of voters registered in the last general election shall vote at such recall election, the officer sought to be recalled shall not be deemed recalled regardless of the outcome of the election. (Amended 1984) Section 27.07. Ballots. The ballots at such recall election shall, with respect to each person whose removal is sought, submit the question: "Shall (name of person) be removed from the office of (name of office) by recall ?" Immediately following each such question, there shall be printed on the ballots the two propositions in the order set forth: "For the recall of (name of person)." "Against the recall of (name of person)." Immediately next to the proposition there shall be designated spaces in which to mark the ballot FOR or AGAINST the recall. A majority vote shall be sufficient to recall such officer, subject to the provisions of Section 27.06 of this article. Amended 1984, 2014) Section 27.08. Succeeding Officer. The incumbent, if not recalled in such election, shall continue in office for the remainder of his unexpired term subject to the recall as before, except as provided in this charter. If recalled in the recall election, he shall be deemed removed from office upon the clerk's certification of the results of that election, and the office shall be filled as provided by this charter for the filing of vacancies of elected officials. The successor of any person so removed shall hold office during the unexpired term of his predecessor. (Amended 1984) Section 27.09. Immunity to Recall. The question of the removal of any officer shall not be submitted to the voters until such person has served six (6) months of the term during which he is sought to be recalled, nor, in case of an officer retained in a recall election, until one year after that election. (Amended 1984)