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HomeMy WebLinkAbout2015_1026_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 s_ Monday, October 26, 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 September 28, 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 (On- going) a. Letter dated 9/23/15 from the Department of Water indicating they have t no recommendations at this time b. Proposed amendment to Article XVIII, Civil Defense Agency, aligning this Article to the Hawaii Revised Statutes, Article 127A -5, by changing from Civil Defense Agency to Emergency Management Agency CRC 2015 -06 Discussion and possible decision - making on whether to pursue developing and placing an amendment on the ballot for Council Districting (Deferred from 9/28/15 meeting) a. Review of past districting election results 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 (Section 20.02 D) (Deferred from 9/28/15 meeting) An Equal Opportunity Employer a. Letter dated 9/25/15 from Paul Kyno requesting the Commission evaluate the impact of this section and consider revising it b. Proposed amendment dated 10/15/15 from Chair TenBruggencate revising Section 20.02 D CRC 2015 -10 Proposed amendment dated 10/2/15 from Commissioner Guy revising Section III as relates to a vacancy in the County Council CRC 2015 -11 Proposed amendment dated 10/15115 from Commissioner Justus revising Section XXIV as relates to the Council's authority to propose amendments pertaining to council terms or to council compensation and Section XXIX limiting the Salary Commission's authority to council compensation only. CRC 2015 -12 Proposed amendment dated 10 /15/15 from Commissioner Justus revising Articles VI and VII as relates to the Mayor and a County Manager system ANNOUNCEMENTS Next Meeting: Monday, November 23, 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 Exe< the public. Cc: Deputy County Attorney Philip Dureza deemed necessary, hold an executive session was not to HRS §92 -4 and shall be ;utive Session are closed to r' 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. Charter Review Commission — October 26, 2015 2 1 P a g c m. . �F 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 — October 26, 2015 3 P a g e Board /Committee: CHARTER REVIEW COMMISSION Meeting Date September 28, 2015 Location Mo'ikeha Building, Meeting Room 2A/2B Start of Meeting: 4:00 pm End of Meeting: 5:25 pm Present Chair Jan TenBruggencate; Vice Chair Joel Guy. Members: Mia Ako; Ed Justus; 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; Deputy County Clerk Scott Sato Excused Absent Lr' . t '',i" 4 t t '? S t (' ,i . 1 I ' z :.. ;> + ,..J „v, y r. ,;a I . sz ), v , ✓r-. .. ,v. 3 l J f .l o > SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:00 p.m. with 7 Commissioners present. Approval of Regular Open Session Minutes of August 24, 2015 Mr. Justus moved to approve the minutes as Minutes circulated. Mr. Parachini seconded the motion. Motion carried 7:0. Business CRC 2015 -02 Staff's update on status of County Clerk's Office veri ing accuracy of 2014 Codified Charter for certification for continued Charter Commission's identifying and proposing non - substantive changes to the Charter (On- going) Staff noted the County Clerk's Office has indicated their target date is now October. CRC 2015 -03 Chairman's update on the status of the preamble (On- going) County Clerk Fountain - Tanigawa said they had spoken with the Office of Q� S Elections on Oahu to try to locate the actual ballot that the preamble was supposed to have been proposed on, and they could not locate it in their warehouse or in their archives. Absent of that the County Clerk's Office Charter Review Commission Open Session September 28, 2015 Page 2 Ilk SUBJECT DISCUSSION ACTION will be requesting a formal opinion from the County Attorney's Office whether it should be listed on the ballot, or if they feel comfortable with the background information provided from the Clerk's Office to have it inserted in the Charter. CRC 2015 -04 Memorandum dated 8/27/15 soliciting put from the Maw 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 Staff stated there will be delays in receiving information as the request was also given to some of the Commissions who only meet once a month and need to place the request on their agenda; they were requested to respond back to the Charter Commission by the end of this year. Responses received will be placed on the Charter Commission's agenda. CRC 2015 -06 Request from Chair TenBruggencate to place on the agenda the issue of Council Districting Chair TenBruggencate said he placed this item on the agenda at the request of Commissioner Stack. Chair TenBruggencate pointed out the issue of districting for County Council candidates has been considered several times by several Charter Commissions. Since there is not a specific proposal before the Commission the Chair deferred to Commissioner Stack. Mr. Stack agreed that this issue has been kicked around more than once or twice, but he understands that for each successive motion to be passed it has been approved by a higher and higher percentage. Mr. Stack said he is not a dyed in the wool districting person but there are certain aspects in our County that do not have any home favorites. The Commission does not need to go through the details now because if this body gets serious about districting it could fall back on the last opportunity they had for districting, and use that language and those geographical areas for representation. Chair Charter Review Commission Open Session September 28, 2015 Page 3 SUBJECT DISCUSSION ACTION TenBruggencate said his recollection from the last time they dealt with districting there were so many different proposals they could not develop a majority around any one. If this moves forward the Commission would need to rally around a single proposal. Mr. Guy remembered it differently. The Commission did look at different districts, and he applauded Commissioner Justus for all the work he did. The Subcommittee solicited information from the public, but for the new Commissioners who did not go through that lengthy process it is a hard talk to have. Mr. Guy said he learned more about districts than he thought he would ever want to know. There was one district proposal that made it to the table, but it did not pass. This issue has been on the ballot multiple times, and it is getting closer and closer to passing. It seems like the people are wanting it more and more, and clearly there is a desire for it, so we should let the voters vote on it. Mr. Justus said he did write up some language that was used the last time this was presented to the Commission with the only difference he was proposing 5 districts with 2 at -large seats. In 2006 it was proposed as 3 districts and 4 at- large, basically using the State legislative districts. When districting was first proposed in the `80s there was a greater number of people that did not want it. The last time it was on the ballot it was about 131 (sic) votes away from passing. In researching how the various districts voted it seemed the outlying communities typically almost always voted in favor, but Lihu`e and Kapa`a did not. Looking at the voting numbers from this past Council race had there been a district seat the lady from the North Shore would have been elected as a district candidate. The point is there was a district on the Island that had a candidate who spoke their voice, but did not get elected. It says there are communities that want to have someone from their area to represent them. Charter Review Commission Open Session September 28, 2015 r SUBJECT DISCUSSION ACTION Mr. Parachini said personally as a voter he is still on the fence. He has had a number of conversations with members of the public, and was reminded it has been on the ballot in the sequence laid out, but he thinks it is something the voters deserve to be able to give their voice to. It might be a good idea if the Commission can come to some consensus of what to propose to the public. Mr. Parachini said he is drawn to the 3 district idea because if it is more than 3 they have to establish an apportionment mechanism for the County, and if there was an apportionment battle it could be litigated for decades. If something is to be proposed Mr. Parachini thought it should be 3 districts and 4 at- large, but he was not saying it was the only practical way to do it. Mr. Parachini felt this could also present a good opportunity to consider 4 year terms for all County Councilmembers, but terms would need to be staggered in the beginning. Mr. Guy asked if a 2 year district and a 4 year at -large term would help with the staggering. Mr. Parachini said his initial feeling was that it should be 4 years for all of them. Ms. Ako said before she can vote she needs to have this issue vetted as she does not have enough information to make a decision. Chair TenBruggencate assured Ms. Ako that the Commission would not take a final vote on this issue today. Chair TenBruggencate requested that Staff make available the Sub - committee reports on districting to the Commissioners. Mr. Guy stated there were some very passionate people for and against districting at the various meetings, so these conversations are not meant to put anyone on the spot, but to start the conversations so intelligent decisions can be made. Mr. Guy also pointed out there was no proposal to be voted on. Mr. Parachini agreed they need to cover the base of getting public input on this. Mr. Justus recalled that the public wanted Charter Review Commission Open Session September 28, 2015 SUBJECT DISCUSSION ACTION districts, but no one could come to a clear consensus as to which proposal they wanted. Chair TenBruggencate pointed out that there was also a substantial number of people who did not want districting period. Chair TenBruggencate asked if the Commission wanted to make a single proposal now or defer this to the next meeting. Ms. Stiglmeier moved to defer to the next meeting. Mr. Parachini seconded the motion. Motion carried 6:1 (nay - Justus) 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 Chair TenBruggencate said this request came from a member of the public, Dennis Esaki, who is out of State today, but did send a letter. A second letter was received from the president and CEO of the Kauai Chamber of Commerce, Mark Perriello. Chair TenBruggencate said a ruling of the Board of Ethics says if you are a member of a board or commission, even though you are a volunteer, you are an officer of the County. The Charter says if you are an officer of the County you may not appear in behalf of private interest before any board, commission, or agency of the County. The proposal from the Chamber of Commerce and Mr. Esaki is to amend that section to say if you are a board member or commissioner you cannot appear on behalf of a private interest before the panel that you sit on, but you can do so before other agencies. One of the suggestions is there are people who will not serve on boards or commissions because they depend for their livelihoods on appearing before County boards, commissions, and agencies, and as a result we lose the opportunity to take advantage of their volunteer service. Chair TenBruggencate drafted language to try to accomplish this, which adds the additional piece of information that if they are allowed to appear they would simply need to disclose that they serve on a board or commission. The suggestion is to continue to make it impossible for members of boards and commissions to appear on behalf of private Charter Review Commission Open Session September 28, 2015 Page 6 r ' SUBJECT DISCUSSION ACTION interest before their own commission, but to allow them to do business with the County outside the commission they serve on. Mr. Parachini asked the Attorney to clarify what private interest means in this context. Attorney Dureza said as a general definition, since he has not researched this, would be something that is not governmental, so it could be corporations or `for' or `non' profit organizations. Chair TenBruggencate said the current language prohibits an attorney from representing a paying client, or even a non - paying client, before boards or commissions if that attorney serves on a board or commission. The suggestion has been that those people are not offering themselves up for County service because it would impact their ability to make a living. Ms. Ako questioned County legal representation in the capacity of a board or commission member versus when not acting in the capacity as a commissioner to which Attorney Dureza said basically if they are doing something as an official duty as an officer for the County they would be "covered" by the County Attorney's Office. Chair TenBruggencate noted that the language from the 2008 Charter amendment was included in the meeting packet, but that proposal was turned down by the voters. Mr. Justus thought they should make it clear in the language to say "provided however unpaid or volunteer County board and commission members may appear ". He thought because they didn't state the members are unpaid a person who has no concept of County governance might naturally think that board or commission members are paid. Mr. Stack said they should clarify the language to read "Kaua`i county boards and commissions" because the way it is written it could be any board — it could be the Big Island's board. Mr. Parachini asked for further clarification on private interest — if he is a chair or an officer of a community association and the community association is displeased with Charter Review Commission Open Session September 28, 2015 Page 7 SUBJECT DISCUSSION ACTION the level of police patrol service and decides to complain to the police commission about this, he could not do this, correct? Chair TenBruggencate said it was his understanding that the way the Charter is being interpreted today that is correct. Chair TenBruggencate called for a motion. Mr. Justus so moved. Chair TenBruggencate clarified the motion by adding they include Mr. Justus' suggestion they use the term "volunteer" in the ballot question. Mr. Justus said the exact words would be "provided however unpaid or volunteer County board and commission members ". The revised 2015 proposal from Chair TenBruggencate which was distributed at the start of the meeting does not include the actual Charter language — only the ballot question. Mr. Justus asked if he could remove his motion and just use the language provided in the ballot question as the language for the motion. Chair TenBruggencate pointed out the language is different (in the 2008 and 2015 proposals). Staff suggested deferring this item so it can be brought back the next month in Ramseyer form for the Commission to review. Chair TenBruggencate said he tried to make the 2015 proposal more palatable, since the 2008 proposal failed, by including a disclosure. Chair TenBruggencate said if Mr. Justus was planning to ad lib it would be better to have something written. Mr. Parachini asked if it would be reasonable to suggest that the Chair, as the author of the 2015 proposal, prepare amended language as Mr. Parachini is not comfortable voting on something where there is not something to vote on. Could the Commission see some proposed Charter language next month? Mr. Justus move to defer to the next month. Mr. Charter Review Commission Open Session September 28, 2015 SUBJECT DISCUSSION ACTION Parachini seconded the motion. Motion carried 7:0 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; Employ Mr. Justus said he proposed the amendment since he has heard it batted about over the years. The language about compensation mirrors the language that it states for board and commission members. This proposes that councilmembers would not receive a salary or monetary compensation, but they would be given payment for expenses that happen during their work. In order for that to happen there would also be changes in the section for the Salary Commission and the Rules of the Council, because if they are not going to receive any compensation they cannot suspend them without pay for a month if they have done something wrong. In studying the formation of the Constitution one of the things that kept coming up is the idea that anyone who is running for a legislative office should not be paid; these should be people who want to see the bettennent of government, and not be there just to collect a salary. Also people often complain they cannot get to Council meeting because they happen in the middle of their work day. Writing letters or emails are not as effective as someone in the room voicing their opinion. If you remove the salary of the councilmembers you will be getting people who are there because they want to be there, and are there to hear the community's voice. They would probably try to hold meetings at night, so it does not interfere with their jobs, and you would get more participation from the public because they can actually come to the Council meetings and voice their opinions. Mr. Justus said he did not know what the ramifications would be, but he would like the Commission to discuss this. Charter Review Commission Open Session September 28, 2015 Page 9 1 p kj f SUBJECT DISCUSSION ACTION Ms. Ako said a lot of thought had gone into the proposal, but the reality is it costs a lot of money to live in paradise. Currently what the elected officials on the Council make is not enough to sustain them, whereby some of them work two jobs. To ask for this elected position to be non -paid is focusing on a select group of individuals that can afford to not work. While it may be a great idea, the reality is Ms. Ako did not think it could be done, and very few would throw their hat in the ring. Mr. Stack asked how Ms. Ako knew that people would have to get a salary to maintain their position. Ms. Ako said not everyone in the County Council works two jobs, but the pay they currently make is not a living wage. Mr. Parachini said there are at least two members that have other jobs to which Chair TenBruggencate said it is more than that. It is essential to focus on what they ask County Councilmembers to do, and there is a lot to those jobs well beyond showing up for a regular meeting every two weeks, special meetings, committee meetings, and public hearings. There is a great deal of constituent interaction involved in being a councilmember. The demands of the job are so great we would be risking putting ourselves in the position of paying nothing and getting nothing. There has been debate on whether being on the County Council is or is not a full time job, and Mr. Parachini's impression is that it is far closer to a full time job than not. It would be a very bad bargain. Ms. Stiglmeier does not want to assume individuals have enough money to be able to volunteer for a County Council position, and feels that the time that is put in for being able to serve our community is worth some type of compensation. The compensation they currently get is not a great amount, but in order to get individuals to take the position that much more seriously they are being compensated to complete certain tasks. If the monetary compensation is taken away will individuals take their job as seriously as Charter Review Commission Open Session September 28, 2015 MOM - 1 SUBJECT DISCUSSION ACTION they do? If they don't have to work, and as sitting councilmembers have their meetings at night, possibly they might have more interaction. But they deserve some sort of compensation because they work hard for us. We take away that compensation what quality of work will we get from them. Mr. Stack said you only have to look to this room to see that altruism and unpaid volunteerism works. Ms. Stighneier agreed. Mr. Stack stated that he is very, very proud to be part of the Commission of this County when he looks around the table and sees who he is colleagues with, and he would continue to do this whether he was paid $25 a day or zero, which is currently zero. We all owe a great debt to these institutions, and we need to support them. There are very talented people on this island with a wealth of experience that would be happy to donate their time, and making this a non - paid enterprise is to reduce it or elevate it to what we are doing right now. Mr. Justus said across the United States there are many municipalities that do not pay their council; communities of our size and larger. It is a testament that people do step up to the plate. Mr. Guy questioned if someone is broke do they not get to run? If you do not have that luxury, but you really want to do good for your community it would be hard to run; you would be excluding the people who can't afford it. Chair TenBruggencate said it was fair to say that in at last the first four months of the year the County Council spends inordinate amounts of time working on the budget. It is something you could not hold another job and do that unless you had a very civic minded employer. Mr. Justus said whether the Council is part-time or full -time the Charter says they are part- time, so it might be worth discussing amending the Charter to make them full -time positions because it is a full -time job. Charter Review Commission Open Session September 28, 2015 Page 11 e' a i SUBJECT DISCUSSION ACTION Ms. Fountain - Tanigawa clarified the point made about the Council being a full -time versus part -time job noting that although the Charter states they are part-time the ERS (Employee Retirement System) considers them full - time employees. Mr. Justus moved to accept this item as a Charter amendment. Mr. Stack seconded the motion. Roll Call Vote: Nay -Guy; Abstain - Justus; Nay - Parachini; Aye- Stack; Nay- Stiglmeier; Nay - TenBruggencate; Nay -Ako Motion Failed 5 Nay; 1 Aye; 1 Abstain CRC 2015 -09 Proposed amendment from Commissioner Justus on Article III, Section 3.07 D as relates to disorderly or contemptuous behavior by councilmembers Mr. Justus referred to a prior discussion on what the Council's authority is over its members. Mr. Furfaro had said the Council not only has the authority to suspend pay, but to expel from the meeting, and the plain reading of the Charter does not explicitly state that the Council has the ability to expel its own members for disorderly conduct. The current Charter says (Section 3.07 D) ( ... ) The presiding officer or the council by a majority vote may expel any otherperson who is guilty of disorderly, (... ) conduct ( ... ). For the sake of clarity in the Charter so it cannot be refuted in the future it could be made clearer that the Council does have the authority to expel one of its members from the meeting for disorderly conduct. Mr. Furfaro clarified that he had referenced the Council having the ability, with a super majority, to reprimand members for their conduct behavior as well as having the ability to suspend them for any period of time with the consequences being an interruption in their pay. Further clarification can be obtained from the County Clerk, but it does exist. Mr. Justus said he was not clear on what Mr. Furfaro said. Charter Review Commission Open Session September 28, 2015 Page 12 SUBJECT DISCUSSION ACTION Mr. Furfaro said Council Rules have those options regarding reprimand with a super majority. Mr. Parachini said the Charter language is consistent with what Mr. Furfaro just said, and he read the first sentence of Section 3.07 D in which it is stated. Ms. Ako thought Mr. Justus had added another layer to what was cited in the Charter in which they suspend pay, but also expel them from a meeting. Referencing the Council rules and with the two thirds vote that the majority can suspend a member's pay for up to a month, Ms. Fountain - Tanigawa was asked by suspending the pay does that also mean that councilmember is expelled from the Chamber. Ms. Fountain - Tanigawa said it does not state it clearly, and Council rules can also be amended through a Resolution. It implies if they are not attending a meeting or getting paid then they don't come in and their vote is not counted. The Rules don't explicitly state that, but she does not have the Rules in front of her to be able to quote. Ms. Fountain - Tanigawa did not think it would hurt to explicitly state that in the Charter, but the Rules could cover it also. It would help to have it better clarified in the Council Rules, which could address whether it was a committee meeting or a Council meeting. Mr. Justus moved to receive the proposal. Ms. Stiglmeier seconded the motion. Mr. Guy asked permission to address another question to Ms. Fountain - Tanigawa in which he said the Rules can be changed, the Charter can't. Put it in the Charter so it is crystal clear into the future. Ms. Fountain - Tanigawa said if that is what they intend, but they additionally need to think about whether it is the entire membership of a Council Committee, or the full sitting Council, but that can also be covered in the Council Rules. Roll Call Vote: Nay -Ako; Nay -Guy; Abstain - Justus; Nay - Parachini; Nay- Stack; Nay - Stiglmeier; Aye- TenBruggencate Motion to receive failed 5 -Nay; 2 -Aye; 1- Abstain Mr. Justus moved to accept the proposal for the Charter Review Commission Open Session September 28, 2015 MOM SUBJECT DISCUSSION ACTION sake of discussion. Mr. Guy seconded the motion. Mr. Justus moved to amend the language to read: The council may, upon an affinnative vote of at least two- thirds of its entire membership, expel from a meeting any member for disorderly or contemptuous behavior in its presence. Following discussion on committee meetings versus full Council meetings, Mr. Justus said he had no amendment to make. Further discussion took place on how specific the language needed to be on expulsion and suspension of pay. Mr. Justus suggested to make it more linear perhaps the second sentence in the proposal should be moved to the beginning of the section so they first have the power to expel, and then the power to suspend without pay, and then also have the power to expel anyone else in the room who is guilty. Mr. Justus moved to amend the motion by putting the middle sentence of proposed Section 3.07 D at the beginning. Mr. Guy seconded the motion. Ms. Ako asked if "disorderly" or "contemptuous" behavior was defined in the Council Rules. Ms. Fountain- Tanigawa indicated no. Motion to amend carried 7:0 Main motion as amended carried 4:2 (Nay - Parachini, TenBruggencate) Amended proposal to be sent to the County Attorney's Office for approval of form and legality. Announcements Next Meeting: Monday, October 26, 2015 — 4:00 p.m. Adjournment A motion was made to adjourn the meeting at 5:25 p.m. followed by a second. Motion carried 7:0 Charter Review Commission Open Session September 28, 2015 Page 14 Submitted by: Barbara Davis, Support Clerk () Approved as circulated. O Approved with amendments. See minutes of ,.V, E Reviewed and Approved by: meeting. Jan TenBruggencate, Chair Dtpai n ent I _ County of Kaua9 September 23, 2015 Kauai County Charter Commission c/o Ms. Barbara Davis, Commission Secretary County of Kauai, Hawaii 4444 Rice Street, Suite 150 L-thu`e, Hawaii 96766 Water has no substitute..... ..Conserve it (((( j SEP 2 42015 ' i Dear Mr. Jan TenBruggencate and Members of the Kaua'i County Charter Commission: Subject: Requesting Input on areas of the Kaua'i County Charter Thank you for allowing the Department of Water (DOW) the opportunity to comment or recommend changes in the Kaua'i County Charter. The Kaua'i Board of Water Supply has discussed areas of which changes can be made during its September 17"' Regular Board meeting, but have decided to take no action as of this time. Thank you for giving us the opportunity and we look forward to reviewing the final proposed ballot amendments. Respectfully, Kirk Saiki, P.E. Manager and Chief Engineer cc: Sherman Shiraishi, Chairperson, Kaua'i Board of Water Supply Andrea Suzuki, Deputy County Attorney KA/mj a 6 Re, 10 tE- LIL 4 , 4398 Pua Loke St., P.O. Box 1706, Lihue, HI 96766 Phone: 808 - 245 -5400 Engineering and Fiscal Fax: 808- 245 -5813, Operations Fax: 808 - 245 -5402, Administration Fax: 808 - 246 -8628 ARTICLE XVIII [CIVIL DEFENSE AGENCY] EMERGENCY MANAGEMENT AGENCY Section 18.01. [Civil Defense Agency] Emergency Management Agency. There shall be [a civil defense agency] an emergency management agency whose powers, duties, functions and organization shall be as provided by law. Section 18.02. Mayor to Declare State of Emergency. The power to declare a state of disaster or emergency is conferred on the mayor. The mayor may declare an emergency when the peace, life, property, health or safety of the community are endangered, but his failure or refusal to make such declaration shall not preclude the county council from finding that an emergency exists providing that the county council adopt an emergency ordinance in accordance with the charter. (Amended 1984) Section 18.03. [Civil Defense Contingency Fund] Emergency Management Contingency Fund. The council shall provide in the annual budget [a civil defense contingency fund] an emergency management contingency fund of not less than $50,000.00 to be expended by the mayor for public purposes during any state of emergency or disaster. A report containing a complete accounting of all such expenditures shall be made as soon as practicable to the council. (Amended 1984) Section 18.04, Organization. Each county, under the mayor's y direction, shall provide a county -level administrator or w'` director of the county emergency management agency, and technical, administrative, and other personnel; office space; furniture; equipment; supplies; and funds necessary to carry out the purposes of this chapter. The administrator or director of the county emergency management agency shall be subject to chapter 76 of the Hawaii Revised Statutes. cRL ao�5- � � � 1 'Q M% lz i s � 4 ELECTION PROPOSED CHARTER AMENDMENT AMENDMENT AMENDMENT YEAR PASSED BY REJECTED BY ELECTORATE ELECTORATE 1992 Shall the term of office of Councilmembers be extended from 2 years to 4 years, and be limited to 2 consecutive full terms, beginning with the 1994 election; if a vacancy occurs before the close of nomination for the mid -term election, shall the appointed replacement serve only to the mid -term of the 4 -year term and the unexpired term be X filled by a councilmember elected in the mid -term election; if the vacancy occurs after the close of nomination for the mid -term election, shall the appointee serve the balance of the term? 1996 Effective 1998, shall Councilmembers be elected by districts, with one member residing X and elected from each of 5 districts, which shall be established by an apportionment Y -8456 commission to be appointed in 1997, and 2 members elected at- large, and shall 2001 N -9589 and every tenth year thereafter be reapportionment year? Blank -3729 0 -6 Shall the term of office for Councilmembers be extended from 2 to 4 years and be X limited to 2 consecutive elected 4 year terms, beginning with the 1998 election? 2006 Shall the term of office for Councilmembers be limited to four consecutive elected two- X year terms, beginning with the 2008 election? Effective 2008, shall three of the seven councilmembers be elected by districts, with X one member residing in and elected from each of three districts that shall be Y -9396 established by an apportionment commission to be appointed in 2007, and four of the N -9557 seven councilmembers elected at- large, and shall 2011 and every tenth year thereafter B -2247 be a reapportionment vear? 0 -12 2010 Shall the term of office for councilmembers be extended from two to four years with a X limit of two consecutive four year terms? Y -8508 N -12974 B -1511 Over -16 September 25, 2015 Charter Review Commission Attn: Ms. Barbara Davis Office of Boards and Commissions 4444 Rice Street, Suite 150 Lihue, Kauai, Hawaii 96766 if F ' it f; P 2 9 1 _ I understand that the Kauai County Charter Section 20.02.D does not allow for any county board or commission member to appear on behalf of any private interest before any other county board, commission or agency. The value of this rule is questionable as it is counterproductive. I believe that this has a negative effect on the county and community. It prohibits many knowledgeable, experienced, community minded citizens from serving on boards to which they may be able to contribute a lot. Of course I am referring to any nonrelated board where there is no direct conflict. I urge you to evaluate the impact of this rule and consider revising it. The result will be more active participation by civic minded citizens in the community. Thank you for your consideration. Paul Kyno Q. PROPOSAL RELATING TO BOARDS AND COMMISSIONS (Initiated by the Charter Commission) BALLOT QUESTION Should unpaid, volunteer Kauai board and commission members be prohibited from appearing on behalf of private interests before the board or commission on which they serve, but be permitted to so appear before other boards, commissions or agencies. BACKGROUND Currently, Section 20.02 (D) of the Charter is being interpreted to prevent any county officer, including unpaid volunteers, from representing themselves or clients before all county boards, commissions or agencies. The Charter Commission believes this interpretation to be overly strict, and that it inappropriately limits the pool of candidates for service on boards and commissions. EXPLANATION OF PROPOSED AMENDMENT If approved, board and commission members would not be allowed to represent themselves or other private interests before the panel on which they serve, but would be permitted to represent themselves and others before other county boards, commissions or agencies. PROS AND CONS MEANING OF A YES VOTE A YES vote continues to prohibit board or commission members from representing themselves or other private interests before their own board or commission, but would allow them to do so before other county boards, commissions or agencies. Unpaid citizens voluntarily serving on county panels should not be r penalized by preventing them from representing their employers, clients or other private interests before county agencies —as long as it's not the board or commission on which they serve. Passing this amendment would expand the pool of citizens available for unpaid public service. MEANING OF A NO VOTE A NO vote means volunteer board and commission members would continue to be prohibited from appearing on behalf of private interests before any county board, commission or agency. This strict ethical interpretation would ensure that special interests gain no advantage from the service of a representative on any county board or commission. It limits the pool of candidates for boards and commissions to those who have no business before county boards, commissions or agencies. b. t F Article XX, Code of Ethics, Section 20.02 D of the Kauai County Charter is amended to read as follows: Section 20.02. No officer or employee of the county shall: "D. Appear in behalf of private interests before any county board, commission or agency. Provided however, unpaid volunteer county board and commission members may appear in behalf of private interests before county boards, commissions or agencies other than the board or commission on which thev serve." New charter material is underscored. Ten Bruggencate_101515 Proposed Amendment Council Vacancies Affecting Article III, Section 3.05 Section 3.05. Vacancy in Office. In the event a vacancy occurs in the council of an at -large councilmember, the vacancy shall be offered to the candidate who received the next highest number of votes in the last general election. If the candidate declines or is unable to accept the position, the vacancy shall be offered to the next candidate who received the next highest number of votes in the last general election. If said candidate declines or is unable to accept the position, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term. If the council is unable to fill a vacancy within (30) days after its occurrence, the [mayor] council chair shall make the appointment to such vacancy. The foregoing provisions shall apply in the event a person elected as [councilman] councilmember dies before taking office; provided, however, that the vacancy shall be filled by the newly elected council within thirty (30) days after the beginning of the new term. In the event a vacancy occurs in the council of a district councilmember, the remaining members of the council shall appoint a successor with the required qualifications to fill the vacancy for the unexpired term. If the council is unable to fill a vacancy within (30) days after its occurrence, the council chair shall make the appointment to such vacancy. The foregoing provisions shall apply in the event a person elected as councilmember dies before taking office; provided, however, that the vacancy shall be filled by the newl elected council within thirty (30) days after the beainnina of the new term. (deleted material is bracketed, new material is underlined) Ballot Questions. 1.Shall a vacancy of an at -large councilmember first be offered to the candidate that received the next highest vote in the last general election? 2.Shall the counci the authority to vacancy in the c agree within thi Guy 100215 1 chair select ouncil rty day instead of the mayor have a replacement to fill a if the council is unable to S? Proposed Amendment Limit on Council Charter Amendment Proposals Affecting Article XXIV, Sections 24.01A & Article XXIX, Sections 29.01 -06 & 07 • - - ffi• Section 24.01. Initiation of Amendments. Amendments to this charter may be initiated only in the following � manner. A. By resolution of the council adopted after two readings on separate days and passed by a vote of five or more members of the council[.]; the council does not have the power to propose or approve any amendment to the charter pertaining to council terms, or to council compensation. Secti Commi maxim as de 1988, on 29.01. ssion comp um salarie fined in S 2006, 201 Section 29.02, FAJZ�R#4r -4 SALARY COMMISSION Organization. There shall be a Salary osed of seven members to establish the s of all elected and appointed officers ection 23.01 D of this Charter. (Amended 2) 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 CSC aois- ii 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. councilmembers which a change after a change 1988, 2006) Changes shall be I s enact I s enact in Salary. No change in salary of effective during the term in ed or for twenty -four months ed, 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) Section 29.07. Proposal for Charter Amendments Regarding Council Compensation. The commission may propose amendments to the existing charter only regarding council compensation. The proposed amendment must be passed by a vote of five or more members of the commission. Once approved, the amendment shall be submitted to the countv clerk. The countv clerk shall provide for the submission of voters at the next general el shall publish the entire text less than thirty (30) days be once in a publication of gene county and by electronic or o official website of the Count the ecti of fore ral nlin V of amendment to on. The commi any such amend any election circulation wi e publication Kauai. the ssion ment not at least thin the on the If a majority of the voters voting upon a charter amendment votes in favor of it, the amendment shall become effective at the time fixed in the amendment, or if no time is fixed, thirty (30) days after its adoption by the voters. The entire text of the amendment shall be published in a publication of general circulation within the county, and published by electronic or online publication on the official website of the County of Kauai not more than thirty (30) days after its adoption. (deleted material is bracketed, new material is underlined) Ballot Question. .' Shall the council be barred from proposing charter amendments relation to council terms and council compensation, and shall the salary commission be given the power to propose charter amendments relating only to council compensation? Justus 101515 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) Sectio counci which after 1988, n 29.05_ lmembers a change a change 2006) Changes shall be I s enact is enact in Salary. No cha effective during ed or for twenty - ed, whichever is nge in salary of the term in four months 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) Section 29.07. Proposal for Charter Amendments Regarding Council Compensation. The commission may propose amendments to the existing charter only regarding council compensation. The proposed amendment must be passed by a vote of five or more members of the commission. Once approved, the amendment shall be submitted to the countv clerk. The countv clerk shall Proposed Amendment Rough Concept Draft Mayor & County Manager System Article & Article (final version would Affecting VI, Sections 6.01 -05. VII, Sections 7.03 -08, subtly alter most of the charter) Premise. The county manager handles all the daily administrative responsibilities; the mayor handles policy and ceremonial responsibilities. Summary. • Executive power shared by Mayor and County Manager • Managing Director is changed to County Manager • County Manager is jointly selected and approved by the Mayor and Council; both have power to remove with each other's approval • Mayor sets policy direction & does ceremonial duties • Mayor's power is reduced, but still has power to approve or veto resolutions • County Manager handles all budgetary and administrative responsibilities, including appointing non - commission department heads ARTICLE VI EXECUTIVE BRANCH Section 6.01. Executive Power. The executive power of the county shall be vested in and exercised by the executive branch, which shall be headed by the mayor and operated by the county manager. Section 6.02. Organization. Except as otherwise provided, within six months after the effective date of this charter, the mayor shall recommend and the council shall by ordinance adopt an administrative code providing for a complete plan of administrative organization of the executive agencies of the county government consistent with the provisions of this charter. Upon recommendation of the mayor, the council may, by a vote of five members, change, abolish, combine or re- arrange the executive agencies of county government. New functions may be assigned by the [mayor county manager, with a majority approval of the council and the approval of the mayor, to existing agencies, but to the extent that this is not practicable, the council by a vote of five members may upon the recommendation of the mayor or county manager create additional departments. Section 6.03. Creation of Advisory Committees. The mayor, county manager, or department heads, with the approval of the mayor or county manager, may each appoint advisory committees. Such advisory committees shall not exist beyond the term of office of the appointing authority. The members of advisory committees shall not be paid, but their authorized expenses shall be paid from appropriations to the appointing authority. Advisory committees shall have no employees but each appointing authority shall cause employees of the department to furnish such services as may be needed by the committees. Section 6.04. Appointment and Removal of Officers and Employees. A. The administrative assistant to the [mayor]county manager and all department heads shall be appointed and may be removed by the [mayor]county manager, except as otherwise provided by this charter. B. Department heads may appoint the necessary staff for which appropriations have been made by the council. Department heads may also suspend, discharge or discipline subordinate employees as may be necessary for the proper conduct of the departments and subject to the classification and civil service laws. Section 6.05. Powers and Duties of Heads of Executive Agencies. A. Subject to the provisions of this charter and applicable regulations adopted thereunder, the heads of the executive agencies of the county government are empowered to assign and reassign duties, supervise, manage, and control all employees and shall have the power and duty to make all personnel actions as provided by law. B. Each head of an executive agency of county government may, subject to the approval of the mayor, prescribe such rules as are necessary for the organization and internal administration of the respective executive agencies. Section 7 of the co shall be on the fl election. two conse .01 unt fou rst No cut Elect y shall r years workin person ive ful & i MAYOR ion and Term of Office. The electors elect a mayor whose term of office beginning at twelve o'clock meridian g day of December following his shall serve as mayor for more than 1 terms. The four year term for mayor shall apply commencing with the 1990 General Election. (Amended 1980, 1984, 1988) Section 7.02. Qualifications. Any citizen of the United States not less than thirty (30) years of age who has been a duly qualified resident elector of the county for at least three years immediately prior to his election shall be eligible for election to the office of mayor. Upon removal of his residence from the county, the mayor shall by that fact be deemed to have vacated his office. (Amended 1980) Section 7.03. Compensation. [The salary of the mayor shall be established in accordance with the provisions of Article XXIX of this Charter. (Amended 2012)] The mayor 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 7.04. Contingency Fund. The council shall provide in the annual budget a contingent fund of not less than $2,500.00 to be expended by the mayor for such public purposes as [he]the mayor may deem proper. Section 7.05. Powers, Duties and Functions. The mayor shall be the chief executive officer of the county. He shall have the power to. [A. Exc supervision administrat honestly, e :ept as otherwise provided, exercise direct over all departments and coordinate all ive activities and see that they are fficiently and lawfully conducted. B. Appoint the necessary members of his staff and other employees and officers whose appointments are not provided herein. C. Create positions authorized by the council and for which appropriations have been made, or abolish positions, but a monthly report of such actions shall be made to the council. D. Make temporary transfers of positions between departments or between subdivisions of departments. E. plan fo civil s who are County Recommend to t r all officers ervice and the not included Code 1987, as :he council for and employees position class in Section 3 -2. amended. (Amend it who ifi 1 o ed approval a pay are exempt from cation plan and f the Kauai 2006) F. Submit operating and capital budgets, together with a capital program annually to the council for its consideration and adoption. G. county, those w authori sign. Sign instri including hich the di zed by this zments requiring execution by the deeds and other conveyances, except rector of finance or other officer is charter, ordinance or resolution to H.]A. Present messages or information to the council which in his opinion are necessary or expedient. [I.]B. In addition to the annual report, make periodic reports informing the public as to county policies, programs and operations. J. C. Approve or veto ordinances and resolutions [pertaining to eminent domain proceedings]. [K.]D. Have a voice but no vote in the proceedings of all boards and commissions. [L.]E. Enforce the provisions of this charter, the ordinances of the county and all applicable laws. [M.]F. Exercise such other powers and perform such other duties as may be prescribed by this charter or by ordinance. Section 7.06 Boards and Commissions Administrator. A. There shall be a boards and commissions administrator and any necessary staff. The administrator shall have such training, education or experience as shall qualify the administrator to perform the duties described in this section. The administrator shall be appointed and may be removed by the [mayor]county manager. B. The administrator shall assist in providing administrative and operational support to the various county boards and commissions. Such support shall include, but not be limited to: assisting in the recruitment, orientation, education, and training of board or commission members regarding their powers, duties, functions, and responsibilities under the charter, especially as such powers, duties, functions, and responsibilities may relate to the particular board or commission to which they have been appointed; helping to educate such members about applicable state and county ethics laws and the State Sunshine Law; assisting the [Office] office of the [Mayor]county manager to fill any vacancies on any board or commission; being a resource to assist the various county boards or commissions in gathering such information, documents, and data as such boards or commissions may deem necessary to perform its functions, serving as a communications liaison between boards and commissions and the various county departments, offices, and agencies that such boards and commissions may interact with, to help ensure that various boards' and commissions' information needs are addressed in timely fashion. C. The mayor, with the county manager, and council shall provide an annual appropriation sufficient to provide the administrator with adequate personnel and administrative, operational, and clerical support to carry out the administrator's functions. Section 7.07 Vacancy in Office. A. In the event of a vacancy in the office of the mayor, the council shall select, by majority vote, one of its members as mayor to serve until the next general election and assumption of office in December by the person elected mayor. The vacancy in the council shall be filled as provided for in Article III, Section 3.05 of the charter. In the event the vacancy occurs prior to the mid -term election, the person elected mayor in the general election shall serve only for the unexpired term of the mayor elected in the prior election. In the event the vacancy occurs later than three (3) days prior to the closing date for filing of nomination papers for the mid -term election, the mayor selected by the council shall continue to serve for the remainder of the term of the person he succeeded. The foregoing provisions shall also apply in the event the person elected as mayor dies before taking office. (Amended 1980) B. During the temporary absence from the county or temporary disability of the mayor, or in case of a vacancy in the office of the mayor, until a new mayor is appointed or elected, the managing director shall act as mayor. In the event both the mayor and the managing director are temporarily absent or disabled, the finance director shall act as mayor during said period. (Amended 2010) C. In the ever before taking offi director at the to continue to serve elected. (Amended it the ce, th rminat as act 2010) person elected as mayor dies e person serving as managing ion of the prior term shall ing mayor until a new mayor is Section 7.08_ [Managing Director. ]County Manager. [The mayor shall appoint and may remove a managing director. The managing director shall be a citizen of the United States not les years of age and a resident at least three years immedia appointment. The managing di least five years experience managerial position with at degree from an accredited in administration, business or s el to re in le st a than thirty (30) ector of the county ly prior to his ctor shall have at an administrative or ast a bachelor's itution in public related field. A. Powers, Duties and Functions. Except as otherwise provided and under the supervision of the Mayor, the managing director shall: Serve as the mayor's principal administrative aide. (2) Oversee the administrative functioning of all administrative departments. (3) Prescribe standards of administrative practice to be followed and evaluate the management and performance of all administrative departments under the director's oversight. (4) Attend meetings of the council and its committees upon request and provide information and reports as they may require. (5) Perform all other duties as required by the charter or assigned by the mayor. B. The salary for the managing director shall be set pursuant to Article XXIX of this Charter. (Amended 2010)] The county manager shall be jointly appointed by the mayor with a majority approval of the council. The mayor, with a majority approval of the council, shall have the power to remove the county manager, and a majority vote the council with the approval of the mayor shall have the power to remove the county manager. The county manager shall serve at the pleasure of the mayor and shall be compensated in accordance with the provisions of Article XXIX of this Charter. A.Qualifications. The county manager shall be a citizen of the United States not less than thirty (30) years of age and a resident elector of the county at least three years immediately prior to his appointment. The county manager shall have at a minimum a masters degree with a concentration in public administration or equivalent from an YU' accredited college or university with two years experience in a managerial or administrative position in government or a bachelors degree and five years of such experience. Comparable education and experience in non- public administration may be accepted by the mayor, and by the council upon an affirmative vote of five of its members. B.Powers, duties and functions. The county manager shall have the power and dutv to. (1) Except as otherwise provided, exercise � direct supervision over all departments and coordinate all administrative functions to see that thev are honestly, efficiently and lawfully conducted. (2) Appoint the necessary members of his staff and other employees and officers whose appointments are not provided herein. (3) Create positions authorized by the council and for which appropriations have been made, or abolish positions. (4) Make temporary transfers of positions between departments or between subdivisions of departments. (5) Recommend to the salary commission for its consideration a pay plan for all department heads, officers and employees who are exempt from civil service and the position classification system. (6) Submit operating and capital budgets, together with a capital program annually to the council for its consideration and adoption. (7) Sign instruments requiring execution by the county, including deeds and other conveyances, except those which the director of finance is authorized by this charter, ordinance or resolution to sign. (8) Present messages or information to the council which in his opinion are necessary or expedient. (9) In addition to the annual report, make periodic reports informing the public as to county policies, programs and operation. (10) Have a voice but no vote in the proceedings of the county council and its committees and all boards and commissions. (11) Enforce the provisions of this charter, the ordinance and all applicable laws. (12) Provide it may from tim (13 ) Exercise such other duti this charter or such reports to the council as e to time request. such other powers and perform es as may be prescribed by by ordinance. (deleted material is bracketed, new material is underlined) Ballot Question: Shall there be both the mayor Justus 101515 a county manager, who is selected by and the council?