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HomeMy WebLinkAbout2015_0727_AgendaPacketJan TenBruggencate Members: Chair Merilee (Mia) Ako Ed Justus Allan Parachini Joel Guy Patrick Stack Vice Chair Cheryl Stiglmeier COUNTY OF KAUAI CHARTER REVIEW COMMISSION NOTICE OF MEETING AND AGENDA Monday, July 27, 2015 4:00 p.m. or shortly thereafter Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, L-ihu'e, HI 96766 Oath of Office for new member Merrilee (Mia) Ako CALL TO ORDER APPROVAL OF MINUTES Regular Open Session Minutes of June 22, 2015 BUSINESS CRC 2014 -06 Discussion and possible decision - making on the percentage of required voters for petition initiated amendments (On- going) a. Charter Amendment, Article XXIV, Section 24.01 B (other language proposed in Section 24.01 approved 6/22/15) b. Initiative and Referendum, Article XXII, Section 22.03 C CRC 2015 -01 Discussion and possible decision - making on proposed changes to Article XXVII Recall: Section 27.01 Recall Procedure, Section 27.03 Signatures, Section 27.06 Recall Election and Section 27.09 Immunity to Recall ANNOUNCEMENTS Next Meeting: Monday, August 24, 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 §92 -4 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 Charter Review Commission Attn: Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 LYhu`e, HI 96766 E- mail:bdavis a,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 R TW COUNTY OF KAUAI to ii Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date June 22, 2015 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 4:04 pm End of Meeting: 5:17 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Allan Parachini; Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza; Boards & Commissions Office Staff Support Clerk Barbara Davis; Administrator Jay Furfaro; County Clerk Jade Fountain- Tanigawa Excused Member Ed Justus Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:04 pm. with 5 Commissioners present Approval of Regular Open Session Minutes of May 18, 2015 Mr. Guy moved to approve the minutes as Minutes circulated. Mr. Parachini seconded the motion. Motion carried 5:0 Business CRC 2014 -06 Discussion and possible decision - making on whether there is a need to define what a charter amendment is Ob. Discussion and possible decision - making on defining what a petition initiated charter amendment is as outlined in the Charter SAmendment Proposal for Article XXIV, revised 5/18/15 2 Chair TenBruggencate asked if the Commission had any changes to the 1 proposed language before them. �\ Mr. Parachini said the version before them does not tinker with the signature requirement percentage to which the Chair noted that is part of V, item d. on the agenda. Mr. Parachini moved that the Commission approve the proposed language pertaining to item b. Mr. Stack seconded the motion. Charter Review Commission Open Session June 22, 2015 Page 2 SUBJECT DISCUSSION ACTION Mr. Guy expressed his concern with the 5t' paragraph which puts the onus on the county to seek a declaratory ruling. Mr. Parachini said it says "may seek", it does not compel the clerk to do that. Chair TenBruggencate asked if it was the understanding of the Commission that the way this is set up now if a petition is filed with the county clerk and the county clerk checks with the county attorney and the county attorney says it is not a charter amendment, or not a valid charter amendment, then the county clerk would still have to get a declaratory ruling, or could the county clerk based on that advice invalidate it. The Chair was not sure the Commission had made this clear enough and would create a problem if it is not clarified whether that authority is in the hands of the county clerk; they can choose to get a declaratory ruling or they have to get a declaratory ruling because they don't have that authority themselves. Mr. Parachini said the way it is worded now it unquestionably says that it is a decision the clerk could make, but is not compelled to do. Mr. Guy said not the declaratory ruling, but the actual decision of whether it is or is not a charter amendment because that will trigger the next step. If the county attorney says it is not a charter amendment can the clerk stop it right there, or in order to stop it does the clerk have to go to court? Mr. Parachini said the way he reads it the clerk could stop it. Chair TenBruggencate said if it is not clear there will be debates later so they should say if the county clerk concludes the measure is not a valid charter amendment, the county clerk may so certify or may seek a declaratory ruling. Attorney Dureza said based on the reading of the language it gives authority to the county clerk to stop the process from going forward even without going to court. The discussion the Commission had last month was that was something they did not want to do. Where it says upon filing ofsuch petition [with the council], the county clerk shall examine it to see whether it is a valid charter amendment followed by if the county clerk concludes Charter Review Commission Open Session June 22, 2015 Page 3 SUBJECT DISCUSSION ACTION the measure is a valid charter amendment, the clerk shall then examine it to see whether it contains a sufficient number, etc. The inverse of that suggests that if the county clerk does not conclude that the measure is a valid charter amendment the clerk does not have to go to the next step of checking to see whether or not there are enough signatures. Chair TenBruggencate said if you go to the next sentence it is intriguing in that if it is not a valid charter amendment they may seek a declaratory ruling, which suggests you can make the argument that the clerk does not have the authority, they can go to court — why would that be there? Attorney Dureza said if they want to be really clear about it they should address it. It is a reasonable interpretation either way, but to be clear they should specify that it is not supposed to stop the process. Mr. Parachini said the insertion of the three words "so certify or" as suggested by the Chairman would fix it. Chair TenBruggencate added it would make it very clear that the clerk has the authority, and if the clerk chooses not to exercise the authority they can ask the court to exercise the authority. Attorney Dureza disagreed; if you are using the word "may" then it is optional for the clerk whether or not the clerk certifies it. If the Commission wants to make sure that happens they should use "shall ". Chair TenBruggencate said Attorney Dureza was suggesting the clerk has the authority. If the clerk has that authority why is that next line in there, why give them the right to seek a declaratory ruling? Mr. Guy said the clerk would never have to go to court if they were the one making the decision. Attorney Dureza said he was not saying their interpretation was necessarily something that would be unacceptable or not reasonable; if they are going to use that language those two things are inconsistent with each other so if they want a clear amendment they want to address that. If they are going to leave it at that people will litigate what this means. Mr. Parachini asked if that could be addressed by changing "may" to "shall" in the 5t' paragraph saying the county clerk shall so certify or seek a declaratory ruling. Mr. Guy said if the clerk is the decision maker there is Charter Review Commission Open Session June 22, 2015 SUBJECT DISCUSSION ACTION no reason to ever have a declaratory ruling if they can determine it is not a valid charter amendment as said in the 0 paragraph. What would impel the clerk to seek a declaratory ruling; they are the ruler already. Ms. Stiglmeier asked if it would make more sense to say that "the county clerk shall certify that it is not a valid charter amendment" and take out "and may seek the declaratory ruling ". Chair TenBruggencate said he would agree with that. Mr. Guy said that is where they start losing his support. Attorney Dureza asked what happens after the county clerk certifies it is not a valid charter amendment. Both Chair TenBruggencate and Ms. Stiglmeier responded it stops. Attorney Dureza apologized saying he misunderstood their intent. Chair TenBruggencate said one of the reasons they are talking about this is in the most recent (proposed amendment) it was not clear who had the authority to say it was not a charter amendment, and it defaulted to the county council to make that decision. It is this Commission's job to make it clear so it does not default anywhere. At the previous meeting Mr. Justus' wanted to put the onus on the county rather than on the person who is creating the petition. The position of the other Commissioners was to have the petitioners create a declaratory ruling, which is their absolute right. Chair TenBruggencate asked Mr. Guy if he had a problem with the language Ms. Stiglmeier was proposing to which Mr. Guy said no, but he does caution putting it all on the county clerk as the final say all. Mr. Guy thought that Mr. Justus' position was if the petitioners got the signatures it had to go on the ballot, and if the county did not like that they had to seek the declaratory ruling. The intention initially was to define what a charter amendment is so it seems clearer for the people who are trying to get it done. Mr. Parachini noted that the minutes of the last meeting indicate that Mr. Justus ultimately agreed that was not a wise decision; there needed to be some determination and the conversation included the county attorney or the county clerk. If the proposal is in conflict of §24.01 then the Charter Review Commission Open Session June 22, 2015 Page 5 SUBJECT DISCUSSION ACTION onus passes to the proposers. Mr. Stack asked if they should discuss the possibility of having an independent council empowered with the notion that it is valid or invalid. The 40' paragraph says the clerk shall examine it; in any examination there is a hunt and the hunt is for something. what exactly is the clerk hunting for? Chair TenBruggencate said the position of county clerk is one of some authority, and if they misuse the authority the courts are there to cover it. One of the issues that comes up is timing. If when a petition comes in you have to empanel a group to see whether the petition is sufficient then you start running into deadlines that make it difficult to get things onto agendas. If someone does not like that then they can go to the courts, but this adds another piece. As the proposal now reads there would be a concurrence of the county clerk and the county attorney, and that should be sufficient. Chair TenBruggencate pointed out they have not been in the habit of dumping legitimate petitions, only one has ever been turned down and not by them. Mr. Stack asked if it was more than possible that some erstwhile citizen is going to challenge it in court so they have to anticipate any course they take is going to be challenged by some member of the public of whoever validated or invalidated the amendment. Mr. Parachini said the clerk would be reaching a conclusion about whether a proposal meets the defining standard in §24.01. If a proponent does not agree with that interpretation it goes without saying that the proponent has the right to challenge that, and it does not necessarily need to be said because it is already so. Ms. Stiglmeier asked if they need to clarify what examination (by the clerk) means, and what the resources are and have that as part of the language. Also do they need to clarify that if the county clerk is going to certify that it is not a valid charter amendment what is the reasoning behind the conclusion the county clerk made. Chair TenBruggencate wanted to correct something he said earlier in that this language does not require the Charter Review Commission Open Session June 22, 2015 I'._- SUBJECT DISCUSSION ACTION county clerk to check with the county attorney. Mr. Guy asked why do they fall on the county clerk and not the county attorney to which the Chair said they could fall on the county attorney, but the county attorney's office is not in the habit of making these kinds of calls. This is a sufficiency of document. Are there situations in which the county attorney makes those kinds of judgments or does the county attorney simply advise other arms of government? Attorney Dureza said they are the attorney for the entire county and that would include the county clerk, and he doubts the county clerk would move forward without consulting the county attorney's office. Chair TenBruggencate asked if they should put language in the proposal that suggests a consultation. Attorney Dureza said that is for the Commission to determine. Mr. Furfaro reminded the Commission that the county clerk is in fact advised by the county attorney's office. The county attorney's office represents all subdivisions of the political subdivision called the County of Kauai. It is the appropriate consideration that all the council members have access to the county attorney. Mr. Furfaro does not believe there would be anything that is given a legal interpretation without asking for that interpretation from the clerk to the county attorney. Chair TenBruggencate said Mr. Furfaro was suggesting they would not have to put it in the charter, it would happen automatically. ' Mr. Furfaro said it is understood. Mr. Parachini asked Ms. Stiglmeier to clarify that she thinks it would be a good idea that the clerk be required to indicate why. Ms. Stiglmeier said that was her thinking that if there is clarification to the petitioner as to why something is not valid they would hopefully get it, and understand why it is not something they could move forward with. Mr. Parachini thought that was reasonable. The Chair asked what language would be used to accomplish that. Mr. Guy suggested to say the clerk provides a written Charter Review Commission Open Session June 22, 2015 Page 7 SUBJECT DISCUSSION ACTION response within 30 days or 60 days of filing assuming there are deadlines they have to make. Chair TenBruggencate said if the county clerk explains their reasoning does that put the county in any stronger or weaker position if the decision is challenged. Attorney Dureza said they try to make decisions in good faith so it is not necessarily something negative to put forth the reasons why something was rejected. It is not something of a confidential nature. Mr. Guy said if it is determined it is not a valid charter amendment and give the reasons why, you are spelling out the case to the opposing attorney to know where the county is at; it seems it would be sketchy from the county's perspective. Attorney Dureza said it may give the other side more advantages in terms of litigation, but if we are operating on good faith it is not something we ought to be afraid of. Mr. Furfaro wanted to remind everyone that the request for a county attorney privilege that would come from the clerk's office would be between the clerk and the county attorney, and would be considered a privileged document. It would then need to go to the full council for the council to make an interpretation if they agree to release that. The question from Mr. Guy is it would be dependent upon the fact that what is disclosed as public information could be used.......... Chair TenBruggencate thought what they were talking about was whether the county clerk would be required to provide a public description of why they made the decision. Mr. Furfaro said he understood that is where the question goes, but he would think the clerk would like to have the benefit of having a legal response to how they came to the conclusion of that interpretation. It would then be voted on to release it and dependent on how strong that case is they are also exposing themselves to the other side should there be litigation. Chair TenBruggencate asked the county clerk if she would like to weigh in on this subject. Charter Review Commission Open Session June 22, 2015 ., SUBJECT DISCUSSION ACTION Ms. Fountain - Tanigawa said she understands what Mr. Furfaro was discussing about the privilege between the county attorney and the county clerk. It has been their practice if they were to reject or return anything to an organization or an individual they would provide some type of rationale, but she has not seen the language the Commission is working from. From previous instances they have issued a rationale from the county clerk's office. Aside from that she would like to have the Commission think about is the time frame. When the information and signatures are provided to the . county clerk as soon as they receive it they have to verify everything. If there is a signature they cannot read they want to give the organization time to obtain the additional information required. The timeline the clerk's office is up against is pretty tight and is something to consider, so if the Commission can craft language to address that the clerk's office would very much appreciate it. Mr. Guy asked if Ms. Fountain-Tanigawa was asking to increase the timeline that currently is in place or to create one. Ms. Fountain - Tanigawa said it would be good to clarify that it needs to be turned in by 'W' date, but because they give the organization the opportunity to provide additional information, and acting in good faith, they would need extra time. She did not know if it would be helpful to turn the signatures over to the clerk earlier. Chair TenBruggencate said those decisions, the timing of when a petition is required, are not in the charter. Those are in the Elections' regulations so that is in the clerk's court. Mr. Guy said an earlier comment about why something wasn't a valid amendment if it is not signatures how else can they invalidate it; do they already have that mechanism to not take it? Ms. Fountain- Tanigawa said any additional information they can provide and to be clear with the group submitting the signatures; they do provide the rationale and it could be as simple as the question presented is not clear enough — sometimes it is not cut and dried. Sometimes we can't get a clear understanding from what we are presented with. Mr. Parachini asked if Ms. Fountain-Tani awa had seen the language Charter Review Commission Open Session June 22, 2015 SUBJECT DISCUSSION ACTION the Commission was considering to which she responded she had not. Mr. Guy asked if the reason the clerk might invalidate an amendment might be more structural and not so much the content. Ms. Fountain - Tanigawa said it would be the content, but the structure of how it is phrased is significant also. The meeting briefly recessed to allow Ms. Fountain - Tanigawa an opportunity to review the proposed changes from the Commission. Ms. Fountain - Tanigawa said her first concern is the language where it states the county clerk would have to conclude that the measure is a valid charter amendment and that is where the issue comes up — is it a charter amendment, is it something else. If they could clarify that point that would be very helpful. Chair TenBruggencate said the first section, §24.01 at the top of the page, attempts to address that issue. Ms. Fountain - Tanigawa thought that was much better than what is currently in the charter. Mr. Stack asked Ms. Fountain - Tanigawa, in the capacity of a member of the public, if she were empowered to give the responsibility of validation to the county attorney or the county clerk, which would she choose? Ms. Fountain- Tanigawa said the office of the county clerk just because the county attorney's office provides legal advice and there would exist a conflict should a conflict arise. Chair TenBruggencate said if they include the line about the reasoning for a ruling he would suggest for the 5th paragraph in the last half of the sentence following the comma to read the county clerk shall so certify and provide the reasoning for that ruling. Chair TenBruggencate then called for an amendment to the main motion. Mr. Stack moved to amend the main motion using the language cited by the Chair. Mr. Guy seconded the motion. Mr. Furfaro said his comments were on the role of the county attorney advising the clerk, and the clerk's office has always responded many times to these requests from the citizens without having to wait for a response from the county attorney, Hearing the clerk's commentary he wanted to Charter Review Commission Open Session June 22, 2015 Page 10 SUBJECT DISCUSSION ACTION make sure he was focusing only on the interaction between the clerk's office and the county attorney. Chair TenBruggencate said the current language they now have in this amendment to the main motion allows the clerk the entire authority on how much and when and whether to discuss it with the county attorney's office. Motion to amend the main motion carried 5:0 Main motion as amended carried 5:0 Proposed amendment to be sent to the County Attorney for review as to form and legality once all agenda items are approved, a. Add a preamble or an additional paragraph to section 1.01; (On- oin 1) Update on the preamble from the County Clerk's Office Chair TenBruggencate explained this question comes from Commissioner Justus, who is not present today, with respect to the preamble that was in the original version of the charter approved in the 1968 election and does not now appear in versions of the charter. Can it simply be reinserted, and if it can, the Commission does not have to do anything further. Chair TenBruggencate noted that Ms. Fountain - Tanigawa had been on her new. job for only a couple of weeks and has done a lot of work for the Commission for which he thanked her. Ms. Fountain- Tanigawa noted it took a lot of research on this question by her office in which the staff feels it does not change the charter in substance, however they would like to ask for a formal written opinion from the County Attorney's Office on whether they can move ahead. Chair TenBruggencate asked if that was something the County Clerk's Office was prepared to ask for or is the Charter Commission being asked to do this. Charter Review Commission Open Session June 22, 2015 Page 11 SUBJECT DISCUSSION ACTION Ms. Fountain - Tanigawa said her office will make the request to the County Attorney. The most difficult thing the staff found was the fact they could not locate the actual ballot from the 1968 special election, but did find the results. Going off information handed out, information that was contained in the Garden Island, reviewing minutes that was pulled from their office it looks as if the preamble was inadvertently left out especially because of its placement, but could not say that with 100% certainty because they have not been able to locate the actual ballot for that year. Chair TenBruggencate said presuming the Clerk's Office is prepared and willing to proceed the Commission can receive this item and take no further action. Chair TenBruggencate thanked Ms. Fountain - Tanigawa for their work. Mr. Guy moved to receive the information on the preamble. Ms. Stiglmeier seconded the motion. Motion carried 5:0 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 XXN, revised 5/18/15 Attorney Dureza thought this portion was covered during the previous discussion for item a. Mr. Stack moved to receive item c. Mr. Parachini seconded the motion. Motion carried 5:0 d. Discussion and possible decision - making on the percentage of required voters for petition initiated amendments (Article 2XI . initiative and referendum (Article XXIII and recall (Article XXVII Chair TenBruggencate asked Attorney Dureza if the Commission could change the percentage requirements in all three Articles with a single charter amendment. Attorney Dureza believed from the research he looked at the answer is yes. Based on case law there have been other past amendments that covered way more subjects than just two provisions in the charter. Amendments can incorporate multiple areas of the charter being amended. Charter Review Commission Open Session June 22, 2015 Page 12 SUBJECT DISCUSSION ACTION Some of the limitations in terms of the ballot question is it has to be clear, not deceiving and the ballot question does not advocate for a certain position nor misleads the voters it should be fine. Chair TenBruggencate said on the table now is does the Commission want to (change the percentages) and if so what those numbers ought to be. Charter amendments now require a petition with 5 %, initiative, referendum and recall require a petition with 20 %. Those numbers are different in part because they weren't developed by the same people. The charter was initially passed with initiative and referendum coming into the charter at a later time with a higher standard. Does the Commission want to make those numbers the same or make them different in some way? Mr. Stack said he is in favor of retaining the current percentages — 20 -20 -5 percent. This is a democracy and we who often craft the rules that people play by have a different view, but we always have the fallback position that the voters say yes or no to this issue. 5% is a low number by many other standards, but it is one that has worked here since 1963 and it works just fine. Mr. Parachini thought the problem was that it has not worked since 1963. The County's track record on initiative charter amendments is pretty grim; two have been blown out by the courts and the one last year became a very ugly process. Mr. Parachini respects the fact that the ballot box should be accessible for the purpose of amending the charter, but if all you have to get is 5 % it does not create a dynamic in which the proponents need to engage in a process of dialogue and compromise sufficient to get a large enough proportion of the electorate to agree with them that something ought to go on the ballot. 5 %, a very small group of people, could move forward a charter amendment that would be stronger and more broadly accepted if it had to undergo the process of political dialogue. Mr. Parachini did not think it needed to be made 20% and would like to see the number get to 15% or Charter Review Commission Open Session June 22, 2015 Page 13 SUBJECT DISCUSSION ACTION 10 %o at the least. Ms. Stiglmeier said the 5% has been in the charter since 1963 and has not been changed since then. Looking at the most recent history the 5 % has made headlines across the nation and knowing the community has the capability of being able to gather 5% of the voting population to be able to try to change things. With recent history the public was able to get that 5 %, but looking at history long term is has worked for us. Ms. Stiglmeier felt they should leave the percentage where it is. Mr. Guy said he has not supported the increase in the past. After deep reflection and the financial implications to the County in court proceedings, he is a defendant of what is the price of democracy to get people involved in government, and if it does not make it through the court but was an incredible galvanizing experience then in the past he has leaned towards that. More the financial ramifications of implementing the charter amendment is what Mr. Guy gets nervous about keeping the number low. The opportunity that the ramifications of these charter amendments have in implementation throughout is something he was taught caution in creating charter amendments. Mr. Guy would support the opportunity to lower the initiative and have them both level out at 10 %. Chair TenBruggencate explained that one of the reasons he has been a proponent of doing something to shift it is the inherent difference in gravity between a charter amendment, which changes the fundamental structure of our government, and initiative and referendum dealing with ordinances, which are the laws that operate under them. Rationally and in every other county initiative and referendum are set at equal or lower than what it takes to do a charter amendment. Chair TenBruggencate thought that one of the reasons that the last initiative petition came in and failed is because they I Charter Review Commission Open Session June 22, 2015 Page 14 f SUBJECT DISCUSSION ACTION used the charter amendment section to pass something which was fundamentally not a charter amendment because it was a lower standard. Perhaps the appropriate thing to do is to bring the numbers into balance or make the initiative and referendum a lower bar than a charter amendment, and he would be willing to drop initiative and referendum to 5 % if they could move charter amendments up to 10% or 15 %. Recall is a big step in which you are trying to toss out people who have been elected by a majority of the voters and that should probably stay at 20 %. Mr. Parachini agreed with the Chairman, but as a practical matter if they were to touch the signature requirements for any of the others that is an amendment they would have to put on the ballot separately. Chair TenBruggencate said they could put signature requirements from three different sections on the ballot in a yes or no question. Mr. Stack said every commission member has at one time or another stated they would be willing to tinker with the 5% o. The numbers that have come up are all arbitrary and why should the Commission take that responsibility when it can be passed along to the voters. Mr. Stack asked if it was necessary to change the 5% to which he said no, nor did he find it desirable. Mr. Stack said they should pass this along to the voters. Chair TenBruggencate said that is what the Commission is doing. Mr. Stack said if they are going to tinker with the 5 % they either do it in Executive Session or defer this to next month where more thought can be given to what number is appropriate. Chair TenBruggencate stated no matter what the Commission does it goes to the voters; the Commission cannot change the charter. Mr. Stack thought they should not change any of the percentages. Ms. Stiglmeier said if they try to lump everything together and the voters agree with one percentage but not another one then nothing goes through. If Charter Review Commission Open Session June 22, 2015 SUBJECT DISCUSSION ACTION they break it out there is the possibility of making some changes. Mr. Guy said then he feared they would all go to a higher rate, which is why he likes putting them altogether. The value of the exercise is the dialogue between a charter amendment, initiative and referendum, and recall in which the definition of those is not crystal clear so in addition to improving the charter there is the opportunity to educate the people and get them involved in the process. Mr. Guy said the value in raising the charter percentage is it engages more people, but he would like to see initiative and referendum come down to 10 %, but would not touch recall. Mr. Guy thought it would improve government and would get support among the public to bring those percentages in line. Mr. Parachini said the people he encountered in the heat of the moment who were adamant the proposal should have been construed as a charter amendment no longer think so. Mr. Guy also cautioned on changing the charter based off of one incident even though history proves there have been other instances. Chair TenBruggencate went back to the charter amendment is something that has some gravity and took judicial notice that the County Council is now considering changing the form of county government to a county management form of government — something this Commission chose not to recommend 4 or 5 years ago. Chair TenBruggencate stated he felt the change was both necessary and desirable that they fix the balance between the number of signatures required for a charter amendment and the number of signatures required for initiative and referendum because he feels it is not working. Chair TenBruggencate said his original proposal was to take them all to 20 %, but did not get much support for that proposal. Now he is prepared to reduce the requirement for initiative and referendum as long as they can keep the amount for charter at or above that level because it is the Commission's job to fix this thing. Mr. Guy said hearing talk about participation in the process, wanting to maintain that and retain that opportunity for the voter is more why he supports it, and not because of the errors that have been made. Charter Review Commission Open Session June 22, 2015 SUBJECT DISCUSSION ACTION 10 % gets more people involved; you have to really do some work which gets more people involved in the democratic process so Mr. Guy would support raising to 10 %0 Mr. Parachini moved to propose to the electorate that they accept raising (sic) the signature percentages for both initiative ordinances and charter amendments to 10 %, which lowers it for ordinances and raises it for charter amendments and makes them equal but leaves recall alone. Mr. Guy seconded the motion for discussion. Mr. Guy said he is inclined to support that but they are not under the gun and there are two more people not present that would have great information and he would like to see this deferred. Mr. Guy moved to defer this agenda item to the July meeting. Ms. Stiglmeier seconded the motion. Motion carried 4:1 (nay-Stack) Announcements Next Meeting: Monday, July 27, 2015 Chair TenBruggencate noted he received a request from Mr. Parachini to put something new on the agenda for next month which is whether to do something about the issue that you can't recall County Councilmembers because they only serve for two years. Chair TenBruggencate also noted that Mia Ako has been approved as a Commissioner by the County Council and will be sworn in at the beginning of the next meeting. Mr. Guy and Ms. Stiglmeier announced that they would not be present at the July meeting. Adjournment Mr. Guy moved to adjourn the meeting at 5:17 p.m. Mr. Stack seconded the motion. Motion carried 5:0 Charter Review Commission Open Session June 22, 2015 Submitted by: Page 17 Barbara Davis, Support Clerk Reviewed and Approved by: () Approved as circulated. () Approved with amendments. See minutes of meeting. Jan TenBruggencate, Chair Section 24.01. [ nitiatzen ef A ems. ] 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. Be By petition [pfesented to the ; l ] filed with the county clerk, signed by registered voters comprising not less than [five — pe- re-ent (8%).1 ten percent (10 %) 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 [wlth the eeunei=], 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 shall so certify and provide the reasoning for that 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. Be 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 4 R(200 o 0/ Loom 06 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 [ ] ten percent (10 %) 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 in the county. (Amended 1976, 2012) &fie QDIZ -66 b. ARTICLE X=I Section 27.01. Recall Procedure. Any elective officer [ €e ], regardless of the length of the term to which elected, 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 removed. (Amended 1984) peree}-} (24.%+] ten percent (100) of the voters registered in the last general election. (Amended 1984) Section 27.02. from the Petitions. county clerk, who Petition papers shall be shall keep a sufficient procured only number of such blank petition papers on file for distribution as herein provided. affidavit Prior to the issuance shall be made by of such petition one or more voters and papers, an filed with the clerk, stating the name and office of 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, [see -ial seearity numbty] and place of residence [ veting ]. 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 (Ieco C f) /�s � 0 , I s 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 held net for j holding a recall election. [A� sueh elee�ar�albe h e ldne t l less than seventy fiy e_ (i B) . e r- Fne rettYRlTr ninety (9 0) days After] Any such election shall be conducted exclusively by mailed ballot and shall occur within not less than 30, nor more than _45, days after the petition has been presented to the official, [ e s affte time as etheEspeeia�e ty of state e�en hel l within sicieT rie,, but if n�ueh eltie�s e be held within sueh peried, the d e s rczux l re�-eet�e-r te be held rwithin — tre zt lFftc– crf ore-Su- ra - Tf less than ff ereen -t (50%) e f the t o tal number o f ve tie regis eyed —i in the last general e- e} ien shall ve t e-at s u� reea l l e l eet ie n ,, - the- effeef s eught te be ree-a l l ed- shall n etbe deemed r eea l l ed reg-afd l e s s-e f the - euteem e e f the e feet fen. ] (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 mask 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 [slif (6)) three (3) 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) 062615 Parachini