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Home My WebLink About2015_0928_AgendaPacketJan TenBruggencate Members: Chair Merilee (Mia) Ako Ed Justus Allan Parachini Joel Guy Patrick Stack Vice Chair Cheryl Stiglmeier K�111►Y 11iL�7 :I_tI AM K /aj 7111 .E �i�/ i if iZ �7 i► i f.�.� C�7►1 NOTICE OF MEETING AND AGENDA Monday, September 28, 2015 4:00 p.m. or shortly thereafter Mo'ikeha Building, Meeting Room 2A/B 4444 Rice Street, Lihu'e, HI 96766 APPROVAL OF MINUTES Regular Open Session Minutes of August 24, 2015 BUSINESS CRC 2015 -02 Staff's update on status of County Clerk's Office verifying accuracy of 2014 Codified Charter for certification for continued Charter Commission's identifying and proposing non - substantive changes to the Charter (On- going) CRC 2015 -03 Chairman's update on the status of the preamble (On- going) CRC 2015 -04 Memorandum dated 8/27/15 soliciting input from the Mayor, County Council and Department Heads asking them to review their portions of the Charter and to report back to the Commission for consideration of any changes desired CRC 2015 -06 Request from Chair TenBruggencate to place on the agenda the issue of Council Districting CRC 2015 -07 Request from a member of the public via Chair TenBruggencate to again consider a proposed amendment to allow county board and commission members to appear before other county boards, commissions, or agencies CRC 2015 -08 Proposed amendment from Commissioner Justus on Article III, Section 3.06 and 3.07 D, and Article XXIX, Sections 29.01 -06, as relates to the Compensation of Councilmembers and the Organization of Council; Officers; Rules; Employees CRC 2015 -09 Proposed amendment from Commissioner Justus on Article III, Section 3.07 D as relates to disorderly or contemptuous behavior by councilmembers ANNOUNCEMENTS Next Meeting: Monday, October 26, 2015 at 4:00 pm in the Mo'ikeha Building, Meeting Room 2A /B An Equal Opportunity Employer ADJOURNMENT EXECUTIVE SESSION Pursuant to Hawaii Revised Statutes §92 -7(a), the Commission may, when deemed necessary, hold an executive session on any agenda item without written public notice if the executive session was not anticipated in advance. Any such executive session shall be held pursuant to HRS §92 -4 and shall be limited to those items described in HRS §92 -5(a). Discussions held in Executive Session are closed to the public. Cc: Deputy County Attorney Philip Dureza 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 — September 28, 2015 2 1 P a c Minutes of Meeting OPEN SESSION Board/Committee: CHARTER REVIEW COMMISSION Meeting Date August 24, 2015 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 4:02 pm End of Meeting: 4:41 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Allan Parachini; Patrick Stack; Cheryl Stiglmeier Also: Deputy County Attorney Philip Dureza (4:13 p.m.); Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Jay Furfaro Excused Members: Ed Justus; Mia Ako Absent SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:02 pni with 5 Commissioners present. Approval of Regular Open Session Minutes of July 27, 2015 Mr. Parachini moved to approve the minutes as Minutes circulated. Ms. Stiglmeier seconded the motion. Motion carried 5:0 Business CRC 2015 -02 Update from Staff on status of County Clerk's Office verifying accuracy of 2014 Codified Charter for certification for continued Charter Commission's identifying and proposing non - substantive changes to the Charter C5 Staff reported that the last indication received from the County Clerk's office is the end of September is their target date. Mr. Guy moved to defer this item to the S September meeting. Mr. Stack seconded the motion. Motion carried 5:0 pQ CRC 2015 -03 Chairman's report and discussion on the status of the preamble Chair TenBruggencate met with Ms. Jade Fountain - Tanigawa, County N Clerk, who said they are continuing to research this issue. The issue is that J& Charter Review Commission Open Session August 24, 2015 EM SUBJECT DISCUSSION ACTION the preamble, which has no force of law, was there when the Charter was first passed, and in subsequent printed versions of the Charter_, there is no preamble. Commissioner Justus had asked if it could be put back in, but the County Clerk and the County Attorney's offices recognized that maybe there was a reason it was taken off and want to further research it. No further correspondence to the County Clerk is required as they are actively aware of this and awaiting a report back. CRC 2015 -04 Discussion on whether to solicit input from the Mayor, County Council and Department Heads asking them to review their portions of the Charter and to report back to the Commission Chair TenBruggencate explained that the Commission is less than a year from when it has to submit all of its charter amendments for the ballot, and suggested they should ask the Boards and Commissions for charter amendments they would like considered. The suggestion was to also send letters to the various department heads asking them to bring whatever changes they have to our attention. This has been asked in the past with no response, but as a courtesy it should be brought forward again. Mr. Stack moved to contact the 17 or so department heads and invite them to alert the Commission to any changes, omissions, or errors they may see. Ms. Stiglmeier seconded the motion. Motion carried 5:0 CRC 2015 -04 Discussion and possible decision - making on a ballot question regarding changing the percentage of required voters to 10 % -10 %- 10 %: a. Charter Amendment Article XXIV Section 24.01 B b. Initiative and Referendum Article XXII Section 22.03 C Chair TenBruggencate said the suggestion is to take the number of signatures required to amend the Charter and make it the same as the Charter Review Commission Open Session August 24, 2015 OEM SUBJECT DISCUSSION ACTION number of signatures required to do an initiative and referendum and set that level at 10 %; currently it is 5% for charter amendments and 20% for initiative and referendum. Chair TenBruggencate suggested it was probably a bad idea to have it way easier to change the most fundamental document of the County government than to pass an ordinance. He further explained that the Commission has been unable to come up with enough votes to reverse the situation and also unable to agree on any number, but seem to have developed at least a working majority around just making those Mr. Guy moved to change all 3 percentages to numbers the same. 10% for discussion purposes. Mr. Stack seconded the motion. It was pointed out that the percentages had been previously approved; the Commission now needs to develop the ballot language. Chair TenBruggencate said they would vacate that motion. (sic) Proposed Ballot Question: Shall the number of registered voter signatures required on petitions for charter amendments, initiative and referendum all Mr. Guy moved to approve the proposed ballot be changed to 10 %? question to be reviewed by the County Attorney. Mr. Stack seconded the motion. Mr. Guy asked if the definition of initiative, referendum, and charter amendments could be briefly described so the general public has a better understanding of the three. It was suggested that could be part of the education piece. Chair TenBruggencate briefly explained that an initiative is initiating a new piece of legislation; referendum is reversing a piece of legislation. Mr. Parachini added it is also important to invest some effort in disseminating the definition of a charter amendment; the language the Commission has adopted is reasonable, logical, and readily understandable. Mr. Furfaro pointed out when they reference (inaudible) on initiative and Charter Review Commission Open Session August 24, 2015 Page 4 SUBJECT DISCUSSION ACTION referendum, those areas cannot touch on the financial picture and/or zoning. Chair TenBruggencate explained there are restrictions in the Charter on certain kinds of public functions that cannot be addressed through that process. Mr. Furfaro further pointed out you cannot introduce something that is the financial picture while the Charter says the Council has to have a balanced budget. Chair TenBruggencate advised the Commission they will have another shot at this proposal because once a ballot question is approved., it will go up to the County Attorney to check for legalities and then it comes back to the Commission. Ms. Stiglmeier agreed that it is imperative to educate the public on initiative and referendum. Chair TenBruggencate noted that past Commissions have not been that involved in the educational process, but this group seems to be interested and they should all play an active role when it comes time for that. Motion to approve the proposed ballot language carried 5:0 Mr. Guy moved to approve the proposed ballot question on clarifying a charter amendment and the process for a proposed petition. Ms. Stiglmeier seconded the motion. Mr. Guy said the proposal feels like two different questions; one is what a charter amendment is and the second is to let the county clerk make the decision. Chair TenBruggencate asked Attorney Dureza if the two parts were sufficiently different that they ought to be separate charter amendments. Mr. Guy asked if the question should read as two different questions. Attorney Dureza said the ballot question addresses both to which Mr. Guy asked if they were taking too much into one question. Attorney Dureza said the Commission had asked about that before and based on what Charter Review Commission Open Session August 24, 2015 SUBJECT DISCUSSION ACTION his research produced, as long as the question is not so confusing as to give whoever is voting an unclear understanding of what it is, then the ballot question is okay. This ballot question is clear enough so as to not cause confusion, but if the Commission wants to take a separate approach and ask the questions separately that is your decision. Mr. Guy then asked the Commission if they wanted to separate the two questions to strengthen the chance of passing them. Mr. Parachini felt that would be a big mistake because you are then asking people to vote yes or no on defining a charter amendment, then to vote yes or no on how petitions will be processed. If the definition is passed but the process is not, then nothing has been accomplished. There is no means of determining whether the definition of a charter amendment that is enacted has been respected. The whole role of the County Clerk is to assure it is legitimately a charter amendment. Mr. Guy thought it would help to clarify what a charter amendment is if there is an argument down the road. Attorney Dureza said as a side issue he had said earlier that they can combine them, but now thinks the second part could be clearer because it implies that you are not changing it but just clarifying it. What you are really doing is amending the procedure for proposed petition charter amendments. Instead of using "clarify" maybe say "shall be amended to" and say what that is to sufficiently give the readers a clear understanding of what they are voting on. You can still choose to combine it into one question. Mr. Parachini said they could clarify it by changing "clarify" to "revise "; the ballot question language could read "and shall the processing of proposed petition charter amendments also be revised ". Chair TenBruggencate said if they do that they might want to include words placing the decision in the hands of the County Clerk. Mr. Parachini suggested saying "revised to ensure the petition fits the definition of a charter amendment ". Mr. Guy said currently the process is the petition goes to the County Council, but we are solidifying that it goes to the County Clerk. Mr. Parachini said they adopted language that says "upon filing of Charter Review Commission Open Session August 24, 2015 SUBJECT DISCUSSION ACTION such petition the county clerk shall examine it to see whether it is a valid charter amendment ". Attorney Dureza suggested saying "and shall the processing of proposed petition charter amendments be revised to enable the county clerk to determine whether a proposal is a filed charter amendment" should accurately capture what the Commission is doing. Mr. Guy agreed they have to establish what the change is. Chair TenBruggencate disagreed with Mr. Parachini on the subject of it would be bad if we got the first half and not the second half because the more important thing is to ensure that we make it really clear what a charter amendment is, which would have resolved the problem the last time. It was not as important to the Chair whether the County Clerk does it or the Council does, but he was happy to be selecting some process; on the other hand he was prepared to vote on it as it stands. Ms. Stighneier thinks it should be separated and if the voters have a clear idea of what a charter amendment is, even if the second part is not passed, then the County Clerk and the voters would have a better idea of what constitutes a charter amendment. Mr. Guy agreed that whoever makes the decision= they will have a clear definition of a charter amendment to base their decision on. Mr. Parachini said failing everything else, you are handing any court that might review such a decision a much clearer sense of what it is, although our objective should be clear enough as to the definition of the process that we prevent litigation rather than encourage it. Mr. Guy said he would like to make a motion amending his motion in order to separate the two questions and add the language the Attorney suggested for the second question. Mr. Parachini pointed out that the voters would be asked to vote on a Yd item which is the signature requirement. Mr. Guy amended his motion to separate the proposed ballot question into 2 questions and to add the language proposed by the Attorney. Ms. Charter Review Commission Open Session August 24, 2015 Page 7 SUBJECT DISCUSSION ACTION Stiglmeier seconded the motion. Roll Call Vote: Aye -Guy; Nay- Parachini; Nay - Stack; Aye - Stiglmeier; Nay- TenBruggencate Motion failed 2:3 Chair TenBruggencate said back to the language as presented, Mr. Stack said he would support this ballot question, however the wording is clumsy; the word "clarified" is used twice and questioned how it was being clarified and who was clarifying it. Chair TenBruggencate said the voters will have an explanatory document on election day or in their ballot envelopes to which Staff said it might not necessarily be in the ballot envelope due to the weight. Mr. Parachini suggested substituting "specified" for "clarified" in the first half of the sentence. The proposed language from Attorney Dureza for the second half of the sentence was "and shall the processing of proposed petition charter amendments also be revised to enable the county clerk to determine whether the proposal is a valid charter amendment ". Mr. Guy said he liked the wording, but thought they were risking the definition in the first half because people are not going to want the County Clerk to have the final say in this and will not support this amendment to which we will lose that first half. Mr. Guy moved to adopt the Attorney's language for the back half of the two part question and to change the word from "clarified" to "specified" in the first half of the question. Mr. Stack seconded the motion. Roll Call Vote: Aye -Guy; Aye- Parachini; Aye - Stack; Aye - Stiglmeier; Aye- TenBruggencate Motion carried 5:0 Charter Review Commission Open Session August 24, 2015 0im SUBJECT DISCUSSION ACTION Announcements Next Meeting: Monday, September 28, 2015 —4:00 p.m. Chair TenBruggencate requested the subject of districting be placed on the September agenda. Adjournment Chair TenBruggencate adjourned the meeting at 4:41 p.m, Submitted by: Barbara Davis, Support Clerk () Approved as circulated. () Approved with amendments. See minutes of Reviewed and Approved by: meeting. Jan TenBruggencate, Chair Bernard P. Carvalho, Jr. Mayor Nadine K. Nakamura Managing Director Jay Furfaro Administrator Jan TenBruggencate, Chair Joel Guy, Vice -Chair Merilee (Mia) Ako Ed Justus Allan Parachim Patrick Stack Cheryl Stiglmeier COUNTY OF KAUAI CHARTER REVIEW COMMISSION TO: See Attached Distribution List Cc: Bernard P. Carvalho, Jr., Mayor Nadine K. Nakamura, Managing Director FROM: Via: DATE: Jan TenBruggencate, Chair Jay Furfaro, Administrator August 27, 2015 RE: Requesting Input on areas of the Kauai County Charter In accordance with Article XXIV of the Kauai County Charter, Section 24.03, the Charter Review Commission will sunset in 2016. As a result the Commission is soliciting comments and /or recommendations regarding specific areas of concern or issues related to your department and /or duties as determined by the Charter for consideration of inclusion on the 2016 General Election ballot. The next Charter Review Commission meeting is scheduled for Monday, September 28, 2015, at 4:00 p.m. in the Moikeha Building, Meeting Room 2A/B, with subsequent meetings on the fourth Monday of each month. We would welcome you to attend our meeting to discuss your viewpoints and/or suggestions. The Commission will be accepting input for proposed ballot amendments through the end of 2015 at which time we will need to commence work on the legal review for all proposed amendments. If you would like to appear before the Charter Review Commission to discuss your concerns at any of our future meetings please contact Barbara Davis, Office of Boards and Commissions at bdavis(aakauai.gov or 241 -4917. Mahalo. 4444 Rice Street, Suite 150 • Lihu`e, Hawaii 96766 • (808) 241 =4917 • Fax (808) 241 -5127 . .:. COUNTY OF KAUAI TABLE OF CONTENTS Page ARTICLE I THE COUNTY AND ITS GOVERNMENT .... ............................... 1 -2 ARTICLE H POWERS OF THE COUNTY .................... ............................... 2 ARTICLE III OY 0 .............................. ............................... 2 -8 ARTICLE IV ORDINANCES AND RESOLUTIONS .......... ............................... 8 -11 ARTICLE V C3 "1 ................................. ............................... 11 -12 ARTICLE VI EXECUTIVE BRANCH .......................... ............................... - 12 13 ARTICLE VII 'OR ..............:. ............................... - ARTICLE VIII O�Y T O ..... ............................... .......... -17 ARTICLE IX PUBLIC DEFENDER ............................................................ 17 ARTICLE IXA PRCTI It'rTOEv, .................................................. 17 -19 ARTICLE X DPT SCE ............. ............................... 19 -21 ARTICLE XI POI3TIEP ........................ ............................... 21 -22 ARTICLE XII ..... 22 -23 ARTICLE XIII iDB'T0Z X00 ....... ............................... 23 -24 ARTICLE XIV P LENT .... ............................... 24 -27 ARTICLE XV .............................. 27 -28 ARTICLE XVI 1OR C0 O COMMISSIONI '1R .................. ,.. 28 -29 ARTICLE XVII .................... ............................... 29 -30 ARTICLE XVIII 30 -31 ARTICLE XIX FINANCIAL PROCEDURES .................. ............................... 31 -39 ARTICLE XX OIL _.. .... .................... 39-42 ARTICLE XXI SPECIAL ASSESSMENT IMPROVEMENTS ............................... 42 ARTICLE XXII INITIATIVE AND REFERENDUM ............ ............................... 42-46 ARTICLE XXIII GENERAL PROVISIONS ........................ ............................... 46 -51 ARTICLE XXIV CHARTER AMENDMENT ...................... ............................... 51 -53 ARTICLE XXV SEVERABILITY ................................... ............................... 53 ARTICLE XXVI TRANSITIONAL PROVISIONS ................ ............................... 53 -55 ARTICLE XXVII RECALL .............................. ............................... ............ 55-57 ARTICLE XXVIII SST OL33�IST ............. ............................... 57 -58 ARTICLE XXIX 5�3 S 58 -59 ARTICLE XXX . ..,.. __.. v�r� ........... ELECTRIC POWER AUTHORITY ............. ............................... 59 -66 ARTICLE XXXI . IBTM ITO' :�A%1 .......................... 67 ARTICLE XXXII �3�3 ............. 67 -7 2008 PROPOSAL: RELATING TO BOARDS AND COMMISSIONS - (Initiated by the Charter- Commission) BALLOT QUESTION Should the Kauai County Charter be amended to expressly permit county board and commission members to appear on behalf ofprivate interests before any county board, commission or agency except the board or commission on which they serve? BACKGROUND Currently Section 20.02 (D) of the Charter is being interpreted to permit volunteer County board and commission members, on a case -by -case basis, to appear on beha f of private interests before County departments, agencies, or boards except before the board or commission on which they serve. EXPLANATION OF PROPOSED AMENDMENT If approved, an officer or employee of the county is expressly permitted to appear on behalf of private interests before any county board, commission or agency except the board or commission on which they serve. MEANING OF A "YES" VOTE A "Yes " vote will affirm that volunteer County board and commission members may represent private interests before County departments, agencies, or boards except before the board or commission on which they serve. MEANING OF "NO" VOTE A "No " vote means the Charter remains the same and the Ethics Board will determine on a case -by -case basis whether an individual may appear on behalf of private interest before any County department, agency, or board. Pros: • Allows individuals serving on County boards and commissions to appear on behalf of private interest before other boards, commissions and agencies on which they do not serve. • Would enlarge the pool of candidates willing to serve on boards and commissions. Cons: • Could result in a Code of Ethics that is less strict. • Is not needed because commissioners can and should be found for all of the County boards and commissions who do not appear before any county department, agency or board. CHARTER AMENDMENT TEXT (New material to be added is underscored) Amend "Section 20.02 D. No officer or employee of the county shall " as follows: "D. Appear in behalf of private interests before any county board, commission or agency. Provided however, county board and commission members may appear on behalf of private axe �o1s -�I interests before anv county board, commission or agency except the board or commission on which thev serve, " Proposed Amendment Unsalaried Councilmembers Affecting Article III, Sections 3.06, 3.07D Article XXIX, Sections 29.01 -06 Section 3.06. Compensation.[ The salary of each councilmember shall be established in accordance with the provisions of Article XXIX of this Charter. (Amended 1988, 2006)] Councilmembers shall receive no monetary compensation but shall be entitled to be paid for necessary expenses incurred by them in the performance of their duties.* Section 3.07 Employees. Organization of Council; Officers; Rules D. [The council may, upon an affirmative vote of at least two - thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence.] The presiding officer or the council by a majority vote may expel any [other] person who is guilty of disorderly, contemptuous or improper conduct at any meeting. Section 29.01. Organization. There shall be a Salary Commission composed of seven members to establish the maximum salaries of all elected and appointed officers as defined in Section 23.01 D of this Charter, except for councilmembers as defined in section 3.06. (Amended 1988, 2006, 2012) d't ( , ao/s -os Section 29.02. Policies. The commission shall adopt and, when it deems necessary, may change the policies governing its salary - setting decisions. Amended 1988, 2006) Section 29.03. Resolution. The commission's salary findings shall be adopted by resolution of the commission and forwarded to the mayor and the council on or before March 15 of any calendar year. The resolution shall take effect without the mayor's and council's concurrence sixty days after its adoption by the commission unless rejected by a vote of not less than five members of the council. The council may reject either the entire resolution or any portion of it. The respective appointing authority may set the salary of an appointee at a figure lower than the maximum figure established by the salary commission for the position. Provided however, elected officers may voluntarily accept a salary lower than the maximum figure established by the salary commission for their position, or forego accepting a salary. (Amended 1988, 2006, 2012) Section 29.04. Rules. The commission shall establish its rules of procedures and adopt rules and regulations pursuant to law. (Amended 1988, 2006) Section 29.05, of councilmemb which a change after a change 1988, 2006)]** er i i Changes in Salary. No change in salary s shall be effective during the term in s enacted or for twenty -four months s enacted, whichever is less. (Amended Section 29.06_ Administration and Operation. The mayor and council shall provide an annual appropriation sufficient to enable the commission to secure clerical or technical assistance and pay other operational costs in the performance of its duties. (Amended 1988, 2006, 2012) (deleted material is bracketed, new material is underlined) Ballot Question. Shall councilmembers receive no monetary compensation, but shall be entitled to incurred by them in the Notes: be paid for necessary expenses performance of their duties? * Language adapted from Section 23.02L: "The members of boards and commissions shall receive no compensation but shall be entitled to be paid for necessary expenses incurred by them in the performance of their duties." ** Section to be removed for clarity. Proposed Amendment Clarity on Council Authority over Disruptive Members Affecting Article III, Section 3.07D Section 3.07D. The council may, upon an affirmative vote of at least two - thirds of its entire membership, suspend without pay for not more than one month any member for disorderly or contemptuous behavior in its presence. The council may, upon an affirmative vote of at least two - thirds of its entire membership, expel from a meeting any member for disorderly or contemptuous behavior in its presence. The presiding officer or the council by a majority vote may expel any other person who is guilty of disorderly, contemptuous or improper conduct at any meeting. (deleted material is bracketed, new material is underlined) Ballot Question: Shall it be clarified that the council has the authority to expel one of its members by affirmative vote of at least two - thirds of its entire membership for disorderly or contemptuous behavior in its presence? 4 k (L ' o115� 09